BNUMBER: B-277738
DATE: October 20, 1997
TITLE: ECG, Inc., B-277738, October 20, 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:ECG, Inc.
File: B-277738
Date:October 20, 1997
Robert E. Gregg, Esq., Hazel & Thomas, for the protester.
Gena E. Cadieux, Esq., and Joel P. Fuerstenberg, Esq., Department of
Energy, for the agency.
Jacqueline Maeder, Esq., and Paul Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that agency improperly evaluated technical proposals is denied
where the record shows that the evaluation was reasonable and
consistent with the stated evaluation factors.
DECISION
ECG, Inc. protests the award of a contract to Global Technologies,
Inc. under request for proposals (RFP) No. DE-RP02-97EW40465, issued
by the Department of Energy (DOE) for advisory services for the
evaluation of environmental restoration activities. ECG challenges
the propriety of the agency's evaluation of ECG's proposal and asserts
that DOE failed to determine whether Global's proposed personnel were
current employees as required by the solicitation.
We deny the protest.
The solicitation, issued February 13, 1997, stated that the government
anticipated making multiple awards with at least one award going to a
small business concern under the Small Business Administration's (SBA)
section 8(a) Program.[1] The RFP contemplated the award of cost
reimbursement, level-of-effort, task order contracts (with
performance-based award fees) for a 1-year base period with four
1-year options. DOE anticipated that, in total, 133,920 labor-hours
of effort (more than 70 full-time employees) would be required per
year for all awards made. The successful offerors are to provide
advisory support services requiring highly technical, scientific and
professional personnel in science, engineering, program and budget
analysis, cost estimation and validation, regulatory analysis,
computer science and technical writing/editing.
The RFP provided for award to the offerors whose conforming proposals
were determined to be most advantageous to the government and advised
that DOE intended to award on the basis of initial offers without
discussions. The RFP identified the following evaluation factors and
subfactors, in descending order of importance:
1. Technical Capability
a. Personnel
1. Project Manager
2. Other Personnel
b. Past Performance
c. Corporate Experience
d. Technical Approach
e. Project Management
2. Business Management Capability
a. Compensation System
b. Transition Plan
3. Price
Offerors were advised that technical capability would be point scored
and that business management capability would be adjectivally rated.
Price proposals would be evaluated as to reasonableness and realism.
Seventeen written proposals, including those of ECG and Global, were
received by the April 14, 1997, closing date. Each offeror submitted
written capability information concerning its proposed project
manager, other personnel, corporate experience, and past performance.
Additionally, as required by the RFP, oral presentations concerning
offerors' technical approach, project management approach, and
business management capability took place between May 5 and
May 20. The proposals were evaluated by a source evaluation panel,
comprised of a technical evaluation team (TET), which reviewed the
written capability statements and the business evaluation team (BET),
which reviewed the financial capability information. The evaluation
teams followed a detailed rating plan in reviewing and evaluating the
proposals. Because DOE anticipated awarding at least one contract to
an 8(a) concern, offers submitted by 8(a) concerns were rated
separately from offers submitted by non-8(a) concerns. However, all
evaluations were performed using the same evaluation criteria set
forth in the solicitation.
Evaluators documented and discussed the strengths and weaknesses of
each proposal and, in internal discussions, reached a consensus
regarding final evaluation ratings. Based on the consensus, the
evaluators rated each technical capability factor and subfactor using
adjectival ratings and corresponding point values on a scale of 1 to
10 (10 for outstanding, 8 for above average, 5 for satisfactory, 3 for
below average, and 1 for marginal). The numerical ratings were
multiplied by the weight for the factors and the scores for each
factor were totaled.[2] A proposal that received all outstanding
ratings could receive a maximum point score of 1,000. Business
management capability was adjectivally rated using the ratings of
outstanding (O), satisfactory (S), and marginal (M). The agency also
performed a cost review and analysis.
The source selection official determined that two non-8(a) concerns,
Booz-Allen & Hamilton and Systematic Management Services, Inc. and one
8(a) concern, Global, represented the best value to the government.
While ECG received a higher composite technical score than Global, the
agency determined that this higher composite score reflected
insignificant differences in technical capabilities and, therefore,
award to ECG was not worth the associated significantly higher
price.[3]
The technical ratings for the awardees' and protester's proposals were
as follows:
8(a) Concerns
Project
Manager Other
Pers. Corp.
Exper. Past
Perform. Technical
Approach Project
Mgmt.
ECG S[4] AA BA S S AA
Global BA O
M S S O
Non-8(a) Concerns
Booz-Allen
AA
O
S
AA
AA
O
Systematic S O BA AA S O
The composite technical scores, business management ratings and prices
for the awardees' and the protester's proposals were as follows:
8(a) Concerns
Technical Score Business Mgmt. RatingPrice
ECG 547.75 S $36,871,260
Global 523.25 S $28,252,819
Non-8(a) Concerns
Booz-Allen 808.25 S $37,555,624
Systematic 719.00 O $29,519,661
On July 16, DOE notified ECG that it had not been selected for award
and, after a debriefing, ECG protested to our Office.
ECG protests the agency's evaluation of its program manager, other
personnel, corporate experience, and past performance[5] and asserts
that the agency failed to ascertain that Global proposed personnel who
were currently employed by the firm, as required by the RFP, or to
ascertain that Global could perform 50 percent of the work under the
contract, as required by the SBA.
PROGRAM MANAGER
The RFP instructed offerors to submit detailed information concerning
their proposed project managers. The RFP stated that the project
manager would be evaluated on the basis of education, professional
background, and work experience similar to the mission and activities
of DOE's Office of Environmental Management as described in the scope
of work (SOW). The project manager would also be evaluated on his/her
commitment and availability to the project.
As noted above, DOE prepared a rating plan (not included in the RFP)
which established detailed objective standards for the evaluation of
offers. For project managers, the rating plan set forth levels of
experience and education necessary to obtain a "satisfactory" rating
and an "outstanding" rating. To obtain an "outstanding" rating, a
candidate had to (1) possess an advanced degree or multiple degrees;
(2) have 8 or more years experience on multiple projects averaging $8
million in expenditures per year; (3) have experience directly related
to the mission and activities of DOE's Office of Environmental
Management; (4) have experience managing the majority of tasks similar
to those set forth in the SOW; and (5) have experience managing a
technical/scientific staff of 70 or more individuals.
In its evaluation, the agency rated ECG's proposed project manager as
"satisfactory," because he possessed a B.S. degree, had managed more
than 100 staff with a multiplicity of skills/experience, and had
managed a budget averaging $40 million per year. DOE also found that
the proposed project manager had experience managing projects similar
to those in the SOW, which provided the candidate with relevant
experience in budget analysis, environmental regulatory support, and
engineering/scientific support. The agency summarized the candidate
as possessing an adequate education and professional background with
work experience on projects similar to the one at issue. The agency
found no major weaknesses. At the debriefing, ECG states that it was
told that its proposed project manager could not be rated
"outstanding" because he did not have an advanced degree or directly
related experience.
ECG argues that the agency misevaluated its proposed project manager
and applied unstated evaluation criteria. Specifically, ECG contends
that the solicitation gave no exact requirement for education or years
of experience and that "[w]ork experience clearly can be as, or even
more, valuable as an advanced degree." ECG argues that DOE's position
that no amount of experience can substitute for an advanced or
additional degree is irrational. ECG contends that because its
proposed project manager had more than 35 years of experience, he
should have been rated "outstanding." ECG also argues that it is
irrational and inconsistent with the RFP for the agency to require
that a proposed project manager meet all of the criteria listed for
"maximum credit" to obtain an outstanding rating. Finally, the
protester claims that its proposed project manager, contrary to the
agency's assessment, has directly related experience and that this
experience, coupled with the length of that experience, should have
resulted in an "outstanding" or, at least, an "above average" rating.
The evaluation of technical proposals is a matter within the
contracting agency's discretion since the agency is responsible for
defining its needs and the best method of accommodating them. Loral
Sys. Co., B-270755, Apr. 17, 1996, 96-1 CPD para. 241 at 5. In reviewing
an agency's technical evaluation, we will not reevaluate the proposal,
but will examine the record of the evaluation to ensure that it was
reasonable and in accordance with stated evaluation criteria, and not
in violation of procurement laws and regulations. Id.
The record does not indicate that the agency improperly evaluated
ECG's proposed project manager or applied unstated evaluation
criteria. As noted above, an agency has wide discretion in how it
will structure its evaluation and our Office will not question an
agency's evaluation so long as it is reasonable and follows the
criteria outlined in the RFP. Pathology Assocs., Inc., 69 Comp. Gen.
269, 271 (1990), 90-1 CPD para. 292 at 3. Here, the RFP set forth the
factors that it would use in evaluating an offeror's proposed project
manager, including, as noted above, education, professional background
and work experience. The agency rating plan merely set out specifics
for the evaluators to use in assessing the strengths and weaknesses of
each candidate relative to the stated factors by setting out
educational levels and experience needed to obtain satisfactory or
outstanding ratings. While the protester believes it is irrational to
require candidates to meet all the criteria listed in order to obtain
the highest rating and objects that the agency should have accepted
years of experience in lieu of an advanced degree, nothing in the
rating plan conflicts with the evaluation factors listed in the RFP
and we do not find the agency's position irrational. Therefore,
notwithstanding ECG's disagreement, we see no reason to object to the
agency's methodology in this regard. ECG's assertion that its
proposed project manager should have been rated outstanding is
therefore without merit since he possessed neither an advanced degree
nor multiple degrees.[6]
OTHER PERSONNEL
ECG next argues that DOE misevaluated its proposed other personnel.
The RFP required that offerors provide, for each labor category
identified in the RFP, the number and names of individuals the
offeror's team currently employs, the educational degree possessed by
each individual and the availability of these personnel during the
first year of contract performance. The RFP advised that other
personnel would be evaluated on the "overall depth of experience,
balance of skills, and availability of the offeror's current staff . .
. ." The rating plan established objective criteria for the various
ratings and provided that to receive an "outstanding" rating, a
proposal must not contain any weaknesses. A proposal with a minor
weakness could receive a rating no higher than "above average."
The TET's consensus evaluation stated that, while ECG employed a
large, generally well-balanced technical/scientific staff, only 44 of
the individuals proposed were available 100 percent of their time, 38
were available 50 percent of their time, and 52 were identified as
being available on an "as needed" basis. DOE determined that the
designation "as needed" was vague and did not adequately address the
individual's availability over the first year of the contract and
downgraded the protester's proposal on this factor. Because of this
weakness, which the agency characterized as minor, ECG's proposal was
rated "above average" on the other personnel subfactor.
ECG complains that there is nothing ambiguous about its use of the
phrase "as needed." The protester states that it meant exactly what
the phrase says--that these personnel will be available to work on the
contract as a need arises, and argues that its proposal should not
have been downgraded on this subfactor.
An offeror is responsible for submitting an adequately written
proposal, and an offeror's mere disagreement with the agency's
judgment concerning the adequacy
of the proposal is not sufficient to establish that the agency acted
unreasonably. SC&A, Inc., B-270160.2, Apr. 10, 1996, 96-1 CPD para. 197
at 5. Here, the agency reasonably concluded that the protester's use
of the term "as needed" lacked clarity and, therefore, ECG's proposal
was properly downgraded. The RFP clearly stated that the offerors
were to state the availability for each individual proposed, which
does not envision, as the protester suggests, a vague general
commitment, such as "as needed." In our view, the agency could
reasonably have concern that such an imprecise commitment did not
inform the agency of the availability or level of commitment of
personnel so designated. We therefore find that DOE reasonably
concluded that ECG had failed to provide all the information needed to
receive the maximum score under this factor.
CORPORATE EXPERIENCE AND PAST PERFORMANCE
ECG protests that the agency's evaluation of corporate experience and
past performance is inconsistent with the terms of the solicitation
and, therefore, that the agency's best value determination is flawed.
The RFP specified that offerors would be evaluated on their work
experience since January 1993, under existing and prior contracts of
size, scope, and complexity similar to that described in the
solicitation. The RFP also advised that offerors would be evaluated
on programs or projects which demonstrated experience similar to the
range of activities and mission of DOE's Office of Environmental
Management, as outlined in the SOW.
Under the terms of the rating plan, an offeror would receive a
"satisfactory" rating on corporate experience if it had performed one
technical support project similar to the one at issue involving a
technical/scientific staff of 30 individuals with
$4 million in expenditures per year and had included such tasks as
budget analysis, environmental regulatory support and
scientific/engineering support. To be rated "outstanding," the firm
had to have, among other things, experience managing a project with a
staff of more than 70 individuals and average annual expenditures of
$8 million. Offerors lacking relevant performance history (i.e.,
offerors which had not performed on contracts similar in size, scope,
or complexity) would be given a "neutral" rating and would receive
one-half of the available points on the past performance criterion.
The agency determined that, although ECG had similar experience on one
project, the project averaged only $720,000 in annual expenditures and
involved only 10 employees. Thus, ECG's experience was not judged
similar in size, scope, or complexity to that described in the RFP.
As to the protester's subcontractors, the agency determined that two
of them did not have corporate experience on projects similar in size,
scope, and complexity to that described in the RFP and one was
determined to have above average corporate experience on a project
that was similar in terms of size, scope, and complexity. Therefore,
ECG's overall rating under past performance was judged to be
"satisfactory."
The protester generally argues that the agency's evaluation of
corporate experience and past performance was flawed. Specifically,
the protester argues that, although DOE sought proposals from 8(a)
firms with average annual revenues of only
$5 million over the immediate past 3 years, DOE penalized offerors
that did not possess corporate experience on projects involving a
technical/scientific staff of
30 and averaging $4 million in annual expenditures. The protester
claims that no 8(a) firm that satisfies the size standard could have
more than one such contract. Moreover, based on the rating plan, an
8(a) firm could never obtain an "outstanding" rating. The protester
contends that, because of the evaluation terms, an 8(a) firm would be
awarded a contract only if there were multiple awards and, thus, an
8(a) firm would never be expected to perform the entire scope of the
contract. Therefore, ECG argues that evaluating 8(a) firms on the
basis of comparable prior experience "makes no sense." The protester
complains that because offerors which were judged to have no relevant
corporate experience, based on the size, scope, and complexity of
prior contracts, would receive a "neutral" rating in past performance,
the agency was, in effect, not evaluating the small business offerors
on these factors.
As noted above, the agency is responsible for defining its needs and
the best method of accommodating them. Loral Sys. Co., supra. Here,
nothing in the records supports ECG's contention that the agency's
evaluation was improper or inconsistent with the terms of the RFP.
The rating plan merely provided objective guidelines for evaluators to
use in evaluating the proposals and follows the RFP's evaluation
criteria, which advised offerors that past performance would be
evaluated on existing and prior contracts similar in size, scope, and
complexity to the work outlined in the SOW. To the extent that ECG is
asserting that 8(a) firms should not have been evaluated under the
same terms as non-8(a) firms, as provided for in the RFP, ECG's
protest is untimely. Under our Bid Protest Regulations, a protest
based upon alleged improprieties in a solicitation which are apparent
prior to bid opening or the time set for receipt of initial proposals
must be filed prior to bid opening or the time set for receipt of
initial proposals.[7] Bid Protest Regulations, 4 C.F.R. sec. 21.2(a)(1)
(1997).
In any event, as noted above, while the RFP stated that multiple
awards were anticipated, there was no guarantee that more than one
contract would be awarded under the solicitation. As a consequence,
the agency determined to ensure that an offeror could perform the
entire scope of work in the event that only one offeror was selected
for award. Therefore, the agency established one set of evaluation
standards designed to ensure that any awardee would possess a level of
corporate experience sufficient to ensure effective performance of the
entire scope of work.
This evaluation process reflects a reasonable concern that competing
proposals be evaluated in light of the entire scope of the contract,
while facilitating the participation of 8(a) concerns in the
competition. Indeed, the standards adopted by DOE were not strict or
restrictive. For example, while the offerors were advised that they
would be evaluated on their past performance relative to the tasks
outlined in the SOW, an offeror with experience in just three key
tasks (budget analysis, environmental regulatory support, and
scientific/engineering support) could be rated "satisfactory."
Similarly, an offeror with experience on a single project with 40
individuals, far fewer than the agency's estimated requirement for the
contract at issue, could receive a "satisfactory" rating. Thus, we
find nothing improper in the evaluation scheme employed by DOE.[8]
COMPLIANCE WITH THE 8(a) PROGRAM
ECG also argues that the RFP required DOE to determine if the
employees listed by Global were current employees and if Global, as
the prime contractor, could perform 50 percent of the work with its
own employees, as required by the 8(a) program. The protester argues
that Global did not indicate in its proposal which of the individuals
listed were its employees and which were employees of its
subcontractors. The protester also claims that Global cannot perform
50 percent of the work without hiring new personnel.
The protester is correct that Global did not indicate firm affiliation
for each individual listed in its proposal; however, the RFP did not
require such information. As noted above, the RFP required only that
each offeror identify the individuals on its team, their educational
degrees, and their availability during the first contract period.
Global's proposal complied with this requirement. Moreover, there is
nothing on the face of the Global proposal which suggests that it
cannot or will not comply with the 8(a) requirement that its employees
must perform 50 percent of the work under the contract. ECG's mere
speculation that Global will not comply with such a requirement is
unsupported and insufficient to form a valid basis for protest.
Hornet Joint Venture, B-258430.3, B-258430.4, Feb. 22, 1995, 95-1 CPD para.
110 at 4.
Further, whether Global can comply with the limitations of
subcontracting is a matter of responsibility which we will not review
absent a showing of possible fraud, bad faith, or misapplication of
definitive responsibility criteria on the part of contracting
officials. 4 C.F.R. sec. 21.5(c); Corvac, Inc., B-254757, Jan. 11, 1994,
94-1 CPD para. 14 at 4-5. Whether Global in fact complies with
subcontracting limitations when performing the contract is a matter of
contract administration also not reviewable under our bid protest
function. 4 C.F.R. sec. 21.5(a); Corvac, Inc., supra.
The protest is denied.
Comptroller General
of the United States
1. The RFP provided that this small business concern must qualify
under Standard Industrial Code (SIC) 8742, with average revenues of
less than $5,000,000 per year over the immediate past 3 years.
2. Personnel was weighted 30 percent of the technical capability
evaluation. Within personnel, project manager and other personnel
were each weighted 15 percent. Past performance and corporate
experience were each weighted 25 percent and technical approach and
project management were each weighted 10 percent.
3. ECG's proposed price was 23 percent higher than Global's price.
4. In the tables, "O" represents "outstanding," "AA" represents "above
average," "S" represents "satisfactory," "BA" represents
"below average," and "M" represents "marginal."
5. While ECG states that it is protesting the awards to Booz-Allen,
Systematic, and Global, the protester does not challenge any specific
technical or managerial aspects of these proposals or the agency's
evaluation of them.
6. The agency has provided no explanation for its finding that ECG's
proposed project manager's experience is only similar (rather than
directly related) to that listed in the SOW. Our review of the
candidate's experience suggests that the agency may have improperly
downgraded ECG on this subfactor. However, we need not resolve this
matter, since the assessment of this one position did not have a
prejudicial impact on ECG. Even if ECG received an "above average"
rating for its proposed project manager, the highest ECG's candidate
can achieve, as discussed above, the additional 30 technical points
would be inconsequential under the circumstances.
7. The protester argues that its protest of the agency's use of one
set of evaluation criteria for both 8(a) and non-8(a) concerns is not
untimely because it is the evaluation criteria specified in the rating
plan rather than anything in the RFP that is improper. We find this
argument unpersuasive. While it is true that the protester was not
aware of all of the objective guidelines set forth in the rating plan
until its debriefing, it knew or should have known from the RFP the
anticipated size, scope, and complexity of the contract at issue
(from, among other things, the size of the labor force needed and
specified in the RFP and the 25 tasks listed in the SOW), and it knew,
or should have known, that its past performance and corporate
experience would be evaluated relative to these factors. The
protester also knew that the procurement was not a set-aside, that it
would be competing against non-8(a) concerns and, as noted above, that
the RFP specified a single set of evaluation criteria for all offers.
Thus, the RFP language placed the protester on notice of how the
agency intended to evaluate past performance and corporate experience
and, if the protester objected, it was required to do so prior to the
closing time set for receipt of proposals.
8. The protester also alleges that DOE improperly failed to select
non-8(a) firms from among all competing offerors. The agency responds
that it did perform a best value determination among all offerors.
The record is not clear about the mechanics of the comparison, but
does clearly show that six non-8(a) firms were determined to have
higher technical scores and comparable prices to the highest-ranked
8(a) concern. Consequently, no 8(a) concern was prejudiced by the
evaluation that was employed. Since competitive prejudice is an
essential element of every viable protest, and since the record
establishes no reasonable possibility of prejudice, we deny this
grounds of protest. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1
CPD para. 54 at 3; see Statistica, Inc., v. Christopher, 102 F.3d 1577
(Fed. Cir. 1996).