BNUMBER: B-278165; B-278165.2
DATE: January 5, 1998
TITLE: International Consultants, Inc.; International Trade Bridge,,
B-278165; B-278165.2, January 5, 1998
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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:International Consultants, Inc.; International Trade Bridge,
Inc.
File: B-278165; B-278165.2
Date:January 5, 1998
Douglas N. Harty, Esq., for International Consultants, Inc., and
Carlos M. Caldas for International Trade Bridge, Inc., the protesters.
Marian E. Sullivan, Esq., Department of the Air Force, for the agency.
Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Award of a contract on the basis of awardee's higher-priced,
technically superior proposal is unobjectionable where the evaluation
is supported by the record and is consistent with the solicitation
evaluation criteria and the agency reasonably determined that the
difference in technical merit among the proposals justified the cost
difference.
DECISION
International Consultants, Inc. (ICI) and International Trade Bridge,
Inc. (ITB) protest the award of a time-and-materials contract to
Integrated Information Technology Corporation (IITC) under request for
proposals (RFP) No. F33601-96-R-9007, issued by the Department of the
Air Force as a competitive 8(a) set-aside for hazardous material,
hazardous waste, and pollution prevention program management services,
as well as technical support, at the Materials Laboratory at
Wright-Patterson Air Force Base, Ohio. ICI and ITB contend that the
award was improper because the agency's technical and past performance
evaluations were flawed; the agency was biased in favor of IITC, since
that firm's proposed subcontractor was the incumbent contractor of the
required services; and the agency did not make a proper best value
determination.[1]
We deny the protests.
The RFP provided for award of a contract for a base year plus 4 option
years to the responsible offeror whose offer was found most
advantageous to the government considering, in descending order of
importance, the following specific evaluation criteria: technical
(consisting of sample test plans in the areas of hazardous waste
management, hazardous material management, and pollution prevention
program management); management/support (including management,
security, personnel, and database maintenance/support); and
cost/price. RFP sec. M-551. A color/adjectival rating (relating to how
well the proposal meets the solicitation requirements and evaluation
standards) and a proposal risk rating (relating to the risk associated
with the offeror's proposed approach) were to be assigned to each
proposal under each evaluation subfactor. RFP sec. M-551(F).
Additionally, a performance risk assessment was to be made under each
of the three evaluation factors based on the offeror's past
performance. Id. The RFP stated that, within each evaluation factor,
performance risk would be considered equal to proposal risk and the
color/adjectival rating in making an integrated source selection
decision. Id.
Seven proposals were received in response to the RFP and discussions
were held with the four offerors whose proposals were included in the
competitive range. Best and final offers (BAFO) were submitted and
evaluated. IITC's BAFO (at $11,206,603) was rated highest
technically, with four blue (exceptional) ratings and three green
(acceptable) ratings in the subfactor areas, and it was assigned low
performance and proposal risk ratings. ICI's BAFO (at $[DELETED])
received one blue rating and six green ratings, and it was assigned
low performance and proposal risk ratings. ITB's BAFO (at $[DELETED])
received one blue rating and six green ratings; it was assigned low
performance risk ratings in all three categories, low proposal risk
ratings in five of the seven subfactor areas, and moderate proposal
risk ratings in the remaining two subfactor areas. The source
selection authority determined that the technical superiority of
IITC's proposal warranted the cost premium involved, and thus that
that proposal offered the best value to the government. The agency
awarded a contract to IITC on September 3. Following detailed
debriefings held with the firms, ICI and ITB filed the current
protests with our Office challenging certain aspects of the agency's
evaluation of the IITC proposal, and the award to that firm at a
higher price than their own.
The protesters initially contend that the agency was biased toward the
awardee because that firm had proposed as a subcontractor Modern
Technologies Corporation (MTC), the incumbent contractor for these
services. According to the protesters, the agency preferred that MTC
continue performing these services. Since MTC had graduated from the
8(a) program and thus was ineligible for award under the RFP, award to
IITC would allow MTC to continue performing some of the contract
requirements. Our review of the record, however, does not support the
bias allegation.
First, the protesters contend that MTC prepared the solicitation's
specifications, and thus should have been excluded from participation
in the competition; however, the record shows that this allegation is
factually incorrect.[2] Second, ICI points to an alleged statement by
MTC early in the procurement that any firm acting as its prime
contractor teaming partner would win the competition. In our view,
such a statement is insufficient to demonstrate agency bias; the
statement is, at best, self-serving and provides no basis to question
the agency's actions in conducting the procurement. Third, the
protesters contend that the agency purposefully reduced the transition
period to favor the awardee due to its teaming with the incumbent
contractor; no credible evidence has been provided to support the
allegation. Moreover, as discussed further below, the record supports
the reasonableness of the agency's evaluation of the IITC proposal,
and thus provides no basis to question the motives of the evaluators
or the source selection authority. In sum, the protesters have not
demonstrated that there was any agency bias or that any such alleged
bias translated into action that unfairly affected the protesters'
positions. See Triton Marine Constr. Corp., B-250856, Feb. 23, 1993,
93-1 CPD para. 171 at 6.
The protesters next contend that the IITC proposal was unreasonably
assigned low performance risk ratings despite the firm's lack of
experience as a prime contractor for the type of environmental
services required under the RFP. The evaluation of proposals is
primarily a matter within the agency's discretion, since it is
responsible for defining its needs and for deciding on the best method
for accommodating them. Seair Transport Servs., Inc., B-252266, June
14, 1993, 93-1 CPD para. 458 at 4. Thus, we question the evaluation only
if the record demonstrates that it was unreasonable or inconsistent
with the RFP's evaluation criteria. Id. As discussed below, we
conclude that the record here supports the evaluation of IITC's
proposal.
The RFP required each offeror to provide relevant past performance
references; the agency would then solicit reference survey responses
from these contacts in order to assess the offeror's performance risk.
RFP sec. L-556(C)(2). The RFP also required past performance information
about proposed subcontractors to be considered in assessing the
offeror's performance risk. RFP sec. L-556(C)(2)(a). IITC provided
numerous past performance references for it and its proposed
subcontractor, MTC. The agency received only favorable past
performance surveys for IITC--each relevant to certain of the
management and support services to be performed--and numerous positive
survey responses for MTC related to substantially similar, more
directly relevant hazardous material management services.
In sum, although IITC does not have substantially similar prime
contract, hazardous material management experience, the past
performance survey responses show IITC's strong performance on various
other support services contracts and contain numerous recommendations
to hire the firm, reasonably supporting the rating of low performance
risk in general. Further, the record shows that MTC has substantial,
directly relevant experience with the current work requirements.
Under these circumstances, we see no basis to question the evaluators'
determination that the proposed teaming arrangement of IITC and MTC
offers low performance risk overall.[3]
The protesters next contend that the blue/exceptional rating assigned
to the IITC proposal under the personnel subfactor of the
management/support factor is unreasonable, since IITC does not
currently employ all of its proposed personnel and [DELETED]. The
protesters contend that, since contingent hiring agreements, as were
provided in the IITC proposal for these proposed individuals, do not
offer any guarantee to the agency that the individuals proposed will
perform under the contract, the blue/ exceptional rating was not
warranted. In this regard, however, the RFP provided only that
proposals would be evaluated under the personnel subfactor in relation
to identified qualifications and labor categories included in the
performance work statement to meet stated work requirements. RFP sec.
M-551(F). The RFP did not preclude proposing prospective hires or
provide that an offer proposing current employees would be weighted
more heavily for evaluation purposes. Moreover, as the protester
points out, the agency, in question 58 of the pre-proposal questions
and answers, specifically recognized that contingent hires, although
not guaranteed, would be fully acceptable.[4]
Since the RFP did not require currently hired personnel or personnel
commitments, we see no basis to conclude that the agency was required
to downgrade IITC's proposal based on IITC's reliance on contingent
hires. In our view, the agency reasonably concluded, based on the
signed agreements, that IITC had demonstrated a realistic intention to
hire the individuals and the reasonable likelihood that the
individuals proposed would be available to perform under the contract.
More importantly, our review of the record shows that, in accordance
with the stated evaluation criterion, the agency assigned the
exceptional rating to the IITC personnel proposal only after
reasonably confirming that many of the awardee's proposed personnel's
qualifications exceeded the RFP's requirements, and that they showed
valuable "hands-on" experience with the work requirements.
Accordingly, we see no basis to question the evaluation rating in this
area.
The protesters next challenge the best value determination as
insufficiently supported and the award at a higher price as
unreasonable. In a negotiated procurement, there is no requirement
that award be made on the basis of lowest price/cost; a cost/technical
tradeoff may be made, and the extent to which one may be sacrificed
for the other is governed by the tests of rationality and consistency
with the established evaluation factors. Hellenic Technodomiki S.A.,
B-265930, Jan. 3, 1996, 96-1 CPD para. 2 at 3. We will uphold awards to
offerors with higher technical ratings and higher costs so long as the
results are consistent with the evaluation criteria and the
contracting agency reasonably determines that the cost premium
involved is justified given the technical superiority of the selected
offeror's proposal. Id.
Here, the source selection authority recognized the price differential
between the proposals [DELETED]. In documenting his integrated
assessment supporting his best value determination, the source
selection authority also compared the technical and management scores
assigned to each proposal and, in substantial detail, summarized those
evaluation areas where the IITC proposal was found to be exceptional
and technically superior to any other offeror's proposal, along with
some of the reasons cited by the evaluators for the perceived
superiority.
For instance, under the most important technical evaluation subfactor,
hazardous waste management, IITC's proposal was commended for
[DELETED].[5] The source selection authority also pointed out that
IITC's was the only proposal to receive blue/exceptional ratings for
the management proposal. IITC was found to have demonstrated a
superior understanding of the work requirements by [DELETED]. In
comparison, ICI's and ITB's proposals were found to be acceptable, but
neither was found to offer substantial strengths; ICI and ITB do not
protest their own technical evaluations. Our review of the proposals
and evaluation record confirms the reasonableness of the source
selection authority's findings of the comparative differences between
the proposals, namely, the documented strengths of the IITC proposal
listed above. Given the knowledge, detail, and expertise demonstrated
by the IITC proposal, and the importance of that technical superiority
to the performance of the specialized hazardous material management
tasks required in the solicitation, we have no basis to question the
reasonableness of the source selection authority's conclusion that
award on the basis of IITC's superior technical proposal was worth the
cost premium involved. Our review of the record thus shows that the
best value award determination was reasonably based and adequately
documented.
The protests are denied.
Comptroller General
of the United States
1. To the extent the protesters contend that the agency improperly
extended the incumbent's prior contract after the incumbent had
graduated from the 8(a) program, the contention is untimely raised,
since the protest, which involves a separate procurement, was filed
more than 10 days after the basis of protest was known. 4 C.F.R. sec.
21.2(a)(2) (1997).
2. We note that the record shows that in the preliminary stages of
this procurement, ICI submitted a capability statement which included
the possible participation of MTC, the same firm ICI now contends
should be excluded from participation in the competition as a
subcontractor because of an incumbency advantage. The record also
indicates that the reason MTC was not ultimately proposed as a
subcontractor by ICI was because the firms could not agree to certain
business terms, not because of any concern regarding MTC's incumbency
or eligibility to be a subcontractor. We also point out that, just as
an incumbent contractor may fairly compete for the award of a
contract, there is nothing unlawful in an offeror's proposal to
subcontract work to an incumbent contractor in an attempt to benefit
from that incumbent's experience where, as here, the challenged
incumbency advantage was reasonably evaluated and not the result of
any unfair agency action. See Patricia A. Geringer, B-247562, June
11, 1992, 92-1 CPD para. 511 at 7. Further, to the extent the protesters
contend that MTC will perform the contract in violation of
solicitation subcontracting limitations, the allegation raises a
matter of contract administration not for our review. Bid Protest
Regulations, 4 C.F.R. sec. 21.5(a).
3. ICI also contends that the past performance evaluations were
improper because competing offerors provided each other as past
performance references, raising the possibility that such references
might be biased in light of the references' own interest in receiving
the award under the RFP. For instance, ICI contends that, since both
ICI and IITC listed MTC as a reference, MTC's surveys may be tainted
as purposefully more favorable for IITC, its teaming partner here.
The agency reports, however, that once the competitors and their
subcontractors were identified, the agency eliminated from
consideration any past performance reference received from a competing
offeror; the agency specifically reports, in response to the
protester's concerns, that no MTC survey responses were received or
considered. Moreover, our review of the record confirms the
reasonableness of the agency's position that the IITC proposal, and
the unchallenged, "untainted" reference surveys received for IITC and
MTC, sufficiently support the reasonableness of the low performance
risk assigned to the IITC proposal.
4. Question 58, "Are contingent hire letters acceptable?", was
answered by the agency as follows:
Yes. The offeror must show how they will fulfill the
contract requirements. The contractor to whom award is
made must actually fulfill these requirements. Although
contingent hire letters provide no absolute assurance that
the individuals will actually perform on the contract,
someone of equal or better experience will have to be
provided after contract award.
5. Although ICI in its report comments contends that many aspects of
this technical evaluation factor should have been scored on a
pass/fail basis, nothing in the RFP provided for such scoring;
instead, the evaluation plan contemplated that legitimate differences
in proposal approaches might warrant additional technical credit.