BNUMBER: B-277213; B-277213.2
DATE: September 16, 1997
TITLE: Dynamic Resources, Inc., B-277213; B-277213.2, September 16,
1997
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DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective
Order. This redacted version has been approved for public release.
Matter of:Dynamic Resources, Inc.
File: B-277213; B-277213.2
Date:September 16, 1997
Richard J. Conway, Esq., James Andrew Jackson, Esq., and Edward W.
Kirsch, Esq., Dickstein Shapiro Morin & Oshinsky, for the protester.
Daniel B. Abrahams, Esq., and Raymond Fioravanti, Esq., Epstein Becker
& Green, P.C., an intervenor.
Elaine A. Eder, Esq., Isaac Johnson, Jr., Esq., and Robert E. Korroch,
Esq., U.S. Coast Guard, for the agency.
Andrew T. Pogany, Esq., and John M. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Pre-award survey conducted by contracting agency of successful
offeror's prospective responsibility did not constitute improper
discussions with only that offeror, even though agency subsequently
decided to request best and final offers, where agency held
discussions with the protester as well as other offerors prior to the
request for best and final offers, the information obtained during the
pre-award survey did not change the results of the selection decision
in any way and, in any case, protester does not identify any specific
areas of its proposal it should have been given an opportunity to
improve.
2. An awardee did not materially misrepresent the availability of its
proposed personnel where it obtained resumes from such personnel and
had a reasonable basis to expect that the employees would be available
for contract performance.
DECISION
Dynamic Resources, Inc. (DRI) protests the award of a contract to FC
Business Systems under request for proposals (RFP) No.
DTCG23-96-R-EA7001, a section 8(a) competitive set-aside, issued by
the United States Coast Guard for professional services to operate and
maintain computerized management information systems. DRI principally
alleges that the agency conducted a comprehensive and detailed
pre-award survey of FC prior to receipt of best and final offers
(BAFO) which constituted improper discussions with only that firm;
that the agency misevaluated FC's proposed key personnel and DRI's
past performance; and that FC engaged in "bait and switch" tactics
with respect to certain proposed personnel.
We deny the protest.
BACKGROUND
The RFP was issued on September 19, 1996, and contemplated the award
of an indefinite delivery/indefinite quantity contract to maintain and
operate the agency's aviation maintenance database systems--the
Aviation Computerized Maintenance System (ACMS) and the Aviation
Maintenance Management Information System (AMMIS)--including operation
of computer hardware and telecommunications equipment, design and
update of application software and other technical services.
Additionally, the RFP potentially required the contractor to integrate
the two large transactional databases, ACMS with AMMIS, into the
Aviation Logistics Management Information System (ALMIS), which will
support mission critical aviation logistic business processes such as
aircraft maintenance, reliability, repair, overhaul, supply, flight
operations and management analysis for the agency's Aircraft Repair
and Supply Center and 26 Coast Guard air stations. The RFP requested
prices for a base period and 4 option years, which were to be
evaluated.
The RFP contained 33 separate and specific labor categories of
personnel who were required to perform maintenance-related services,
and identified specific education and experience requirements for
each. The RFP also identified certain of these labor categories as
"key personnel," which were defined as "those persons, whether
employed by the offeror or by one of the offeror's [prospective]
subcontractors and teaming contractors who will occupy the following
positions or perform" any of the following duties: program manager;
technical manager; senior reliability engineer; computer programmers;
aircraft maintenance analysts; programmer/analyst; and software
engineer (emphasis in original). The RFP required a personnel data
form (PDF) to be completed for each key person, but did not require
letters of commitment.
The RFP stated that the agency intended to award without discussions,
unless discussions were later determined to be necessary, and would
award the contract to the offeror whose proposal represented the best
overall value to the government "on the basis of its offer and its
capability to perform the work." The RFP contained the following
evaluation factors, listed in descending order of importance: (1)
offer acceptability (an initial determination of the acceptability of
an offer on a pass/fail basis to ascertain that the offer assents to
all terms and conditions of solicitation requirements); (2) cost and
price, fee and profit reasonableness and realism (use of cost and
price analysis for cost/price reasonableness/realism); and (3)
capability of competing offerors, including the subfactors of past
performance,[1] qualifications of key personnel, experience, and
understanding of the government's requirements and the nature of the
work. The RFP required each offeror to submit written capability
information, a cost proposal, and oral presentation slides. The oral
presentation slides were required because the RFP stated that the
agency would employ an oral presentation medium, among other things,
to evaluate and select the successful offeror. The RFP stated that
the oral presentation and the question and answer session were tests
of the offeror's capability and would not become a part of the
proposal.
Six offers were received by the initial closing date, including those
of DRI and FC. The agency convened a technical evaluation team (TET),
which was responsible for evaluating technical information,[2] and
which also sent out past performance questionnaires. The TET
determined that all offers were acceptable and that all offerors were
eligible to participate in oral presentations, which were conducted
from December 5 through December 12. The agency's cost/price report,
completed on January 24, 1997, stated that all offers were reasonably
and realistically priced. However, the contracting officer was
advised that negative past performance ratings had been received on
proposed subcontractors of two offerors, DRI and another offeror not
involved in this protest. DRI's proposed subcontractor, [deleted],
had been given a negative rating by the Coast Guard program office for
its performance of a contract concerning [deleted]. The agency
requested a rebuttal from [deleted] (DRI was sent a copy of the
request), and the rebuttal was received on March 3.
[Deleted] rebuttal, which disputed the poor negative rating, was
referred to the Chief, Office of Aeronautical Engineering, who
determined that the rebuttal did not alter the original past
performance rating and so advised the contracting officer. The
rebuttal was not shown to the TET, which was informed of the Office of
Aeronautical Engineering Chief's decision. The TET submitted its
final report on March 14 with the following results, including
price/cost (which had been evaluated earlier as reflected in the
agency's cost report):
OfferorTechnical RatingMost Probable Cost Risk
FC Green [deleted] [deleted]
DRI Green [deleted] [deleted]
The TET's ratings were based on its finding that both proposals were
comprehensive and met or exceeded all requirements. For example, with
respect to FC, the TET found that the "corporate teaming partners have
successfully performed on several projects similar to ALMIS [and that
its talent] pool is deep and matrix arrangements are strong." The TET
also noted that FC's project manager handled the key personnel
quality/availability problem presented to the firm during the oral
presentation session "most adroitly." Further, the TET noted that FC
and its team have a "track record" with each other and experience with
the company. The TET ultimately assigned a low technical risk to FC
because its proposed team was "solid" and its past performance
"indicates a pursuit of excellence."
Concerning DRI, the TET noted that its team [deleted].
[deleted].
Based on these considerations, the TET recommended award to FC as the
best value offeror. The source selection official (SSO--the
contracting officer) accepted the recommendation and made a formal
determination to award the contract to FC. The agency's program
officer then requested a pre-award survey to "validate the information
presented by [FC] and [its] primary subcontractor during the oral
presentation." The pre-award survey was conducted on April 1 and 2,
with two quality assurance personnel, the contracting officer, and the
TET Coordinator, among others, present. The agency continued to
proceed to process the award without discussions. However, upon
review of the acquisition files, the agency attorney recommended to
the contracting officer that discussions be conducted to allow DRI
(and the third offeror) to address the negative past performance
ratings of their subcontractors in view of past correspondence with
these subcontractors, which the agency attorney believed may have
constituted partial discussions, necessitating the affording of an
opportunity to submit a best and final offer (the FC proposal was not
in issue in this determination). On April 17, the agency conducted
discussions with each offeror, including discussions with DRI about
the past performance of its subcontractor, [deleted]. Cost was the
only topic of discussion with FC.
Subsequently, all offerors were requested to submit their BAFOs.
After receipt of BAFOs, the agency evaluated FC's most probable cost
at [deleted], and DRI's most probable cost was evaluated at [deleted].
Additionally, the TET reconvened on April 30 to review the BAFO past
performance information submitted by DRI and the third offeror. In an
"augmented" report (dated May 2) provided to the contracting officer,
the TET continued to "maintain its original recommendation" that FC
still be selected for award. The SSO, after reviewing the
recommendation, maintained her selection decision of FC because she
"determine[d] that the offer proposed by [FC] still represents the
best overall value to satisfy the Coast Guard's requirements." She
also stated that her "original determination to award to this firm,
therefore, stands." This protest followed a debriefing afforded to
DRI.
DRI raises numerous arguments concerning the evaluation and the award
decision. We have reviewed the record and find all to be without
merit. We discuss the principal arguments below.
ALLEGED IMPROPER DISCUSSIONS
DRI argues that the agency improperly employed the pre-award survey to
supplement, modify, and improve FC's technical proposal and oral
presentation. According to DRI, the TET Coordinator was involved in
developing a list of documents and proposed pre-award questions that
corresponded to the topics which were the subject of the oral
presentation. DRI concludes that, had it been afforded an equally
comprehensive opportunity to discuss its proposal with the agency, the
evaluation results may have been different.
We find nothing improper in the agency's actions. The agency
conducted a routine pre-award survey of FC, not to provide FC a
competitive advantage, but because the agency had decided at that
juncture to make award to FC based on the results of the evaluation.
When the agency then determined, prior to the award, that
circumstances required discussions with all offerors, it accomplished
this by the only means available--by opening discussions with all
offerors. The agency then provided all an opportunity to submit a
BAFO, again, not to allow FC an unfair opportunity to revise its
proposal, but because the regulations require it. See Federal
Acquisition Regulation sec. 15.611(a). While the agency did not conduct
a "pre--award survey" of DRI, the discussions with the firm addressed
the agency's concerns with its proposal, and the call for BAFOs
provided DRI the opportunity to revise its proposal in response; DRI
was unable to allay the agency's concerns in its revised proposal.
While DRI asserts generally that a "pre-award survey" would have
provided it an opportunity to address more fully "technical issues"
and deficiencies, DRI's protest and written comments do not identify
even a single, specific "technical issue" or deficiency that the
agency should have--but failed to--discuss with the firm during the
procurement. Further, both offerors' technical proposals were rated
"green" (satisfactory), and FC's offered price was lower than DRI's
before and after receipt of BAFOs. There thus is no basis to conclude
that FC "improved" its competitive standing as a result of the
pre-award survey, or that DRI improperly was deprived of an
opportunity to improve its own standing.
KEY PERSONNEL
DRI maintains that the agency misapplied the RFP's Key Personnel
provision in evaluating FC's proposal. According to the protester,
the agency improperly gave FC credit for proposing 29 key personnel,
when, in fact, the firm had only designated 7 of the individuals it
proposed as key personnel. DRI concludes that FC's proposal "should
have been rejected as non-responsive" because it failed to propose
enough key personnel.
This argument is without merit. The only significant difference
between key and nonkey personnel in the RFP was that a PDF had to be
included for key personnel. While FC may have labeled only seven
individuals as key personnel, it included PDFs for all personnel it
proposed, and the agency reasonably treated the mislabeling as a
clerical error and therefore evaluated as key personnel those
individuals proposed for positions whose occupants the RFP indicated
were key personnel. In any event, it is not apparent why any
significance should be attached to the mislabeling of the individuals
in FC's proposal, since there is no indication that the mislabeling
could have given FC any advantage in the evaluation. We conclude that
the agency's evaluation in this regard is reasonable, particularly in
light of the fact that the protester does not question the
qualifications, credentials, education, or experience of the personnel
FC proposed.
PAST PERFORMANCE
Past performance was the most important of the technical merit
subfactors. Past performance information for both the prime
contractors and their proposed subcontractors was obtained by the TET
through the use of past performance questionnaires. DRI's proposal
identified [deleted] work on the [deleted], and that program office
responded to the past performance questionnaire with an unfavorable
rating. For example, [deleted] received the following comments
concerning the [deleted]:
[deleted]
[deleted]
[deleted]
[deleted]
The questionnaire concluded with the following statement:
[deleted].
However, despite the [deleted] rating received, the TET recognized
[deleted] and awarded DRI a [deleted] for this evaluation factor.
DRI complains that [deleted]. DRI states that [deleted].
DRI's focus on the allegedly faulty past performance ratings of its
subcontractor is misplaced. As stated above, the agency's primary
concerns were not with [deleted], but with DRI's own past performance
record. As part of the evaluation, DRI's past performance on eight
contracts was reviewed (one additional contract report from the
Federal Prison Industries was disregarded). The questionnaire
responses on [deleted] of the eight contracts received by the agency
[deleted]. In the questionnaire, each respondent was asked, among
other things, to provide summary ratings of 0 (unsatisfactory), 1
(poor), 2 (fair), 3 (good), or 4 (excellent) for quality, cost
control, timeliness, business excellence, and customer satisfaction.
DRI's average score for these factors on these five contracts were
[deleted]. Its overall average score for all [deleted]. While the
remaining questionnaires showed that DRI's performance was [deleted].
Consequently, even if we assume, arguendo, that the Coast Guard
misconstrued one reference involving its subcontractor, there is no
basis for questioning the rating of DRI's proposal as
[deleted]--rather than [deleted]--for this subfactor.
ALLEGED BAIT AND SWITCH
In its initial protest, DRI alleged "on information and belief" that
FC proposed a [deleted] as a key employee, knowing that he would be
unavailable to be employed under the contract. When the agency and
the intervenor presented evidence that [deleted] had entered into a
consulting agreement with FC and had authorized the execution of an
offer letter with FC, DRI abandoned this allegation. Instead, in its
written comments, DRI alleged that FC proposed [deleted] and [deleted]
without first obtaining their permission to use their resumes in the
FC proposal.
Generally, an offeror's misrepresentation concerning personnel that
materially influences an agency's consideration of its proposal
provides a basis for proposal rejection or termination of a contract
issued based upon the proposal. ManTech Advanced Sys. Int'l, Inc.,
B-255719.2, May 11, 1994, 94-1 CPD para. 326 at 5. A misrepresentation is
material where an agency has relied upon the misrepresentation and
that misrepresentation likely had a significant impact upon the
evaluation. Id. at 5. We conclude from the record here that FC did
not make any material misrepresentations concerning its proposed
personnel.
FC has shown that it obtained [deleted] resume for use in its
proposal, and [deleted] was present at an FC "open house for
employment" shortly after the contract was awarded. There is nothing
in the record suggesting that FC could not reasonably believe that
[deleted] would be available for employment. DRI's allegation
regarding [deleted] is based solely on a hearsay telephone
conversation between another [deleted] manager and [deleted]. This
conversation, by itself, is not sufficient to establish that FC did
not expect [deleted] to be available, at least in light of the fact
that FC has shown that it obtained [deleted] resume prior to
submitting its proposal.
The protest is denied.
Comptroller General
of the United States
1. The RFP contained a past performance questionnaire which would be
sent to past and present clients identified by each offeror. Past
performance qualifications were evaluated for the prime and each
subcontractor.
2. The TET used a color coded rating system consisting of blue
(superior), green (satisfactory), yellow (marginal), and red
(unsatisfactory).