BNUMBER: B-278352.2; B-278352.3
DATE: April 14, 1998
TITLE: RGII Technologies, Inc.--Reconsideration and Protest, B-
278352.2; B-278352.3, April 14, 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:RGII Technologies, Inc.--Reconsideration and Protest
File: B-278352.2; B-278352.3
Date:April 14, 1998
James K. Kearney, Esq., and Theodore W. Atkinson, Esq., Reed Smith
Shaw & McClay, for the protester.
Edward V. Gregorowicz, Jr., Esq., and Frederick P. Hink, Esq., for For
Your Information, Inc., an intervenor.
Kimberly A. Kegowicz, Esq., U.S. Coast Guard, for the agency.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of
the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
1. Request for reconsideration of a decision sustaining a protest of
an award based on a technically unacceptable best and final offer
(BAFO) and recommending award based on the only apparent technically
acceptable BAFO is denied where the BAFO in question did not satisfy
the stated key personnel qualification requirements, the agency had
conducted discussions, on this issue, and the resulting BAFO remained
unacceptable.
2. Agency may waive as a minor informality an offeror's failure to
comply with a solicitation requirement for the submission of one
original set and seven copies of oral presentation slides by the
deadline for submission of initial proposals, where an offeror
submitted seven copies of the set of slides by the deadline and the
set of original slides submitted after the deadline duplicated the
content of the copies previously submitted.
DECISION
RGII Technologies, Inc. requests reconsideration of our decision, For
Your Information, Inc., B-278352, Dec. 15, 1997, 97-2 CPD para. 164,
sustaining a protest by For Your Information, Inc. (FYI) of an award
to RGII under request for proposals (RFP) No. DTCG23-97-R-HRM001,
issued by the U.S. Coast Guard for information technology support
services. RGII also protests the agency's decision, in response to
our recommendation in For Your Information, Inc., supra, at 5, to
terminate RGII's contract and to make award to FYI.
We deny the request for reconsideration and the protest.
The RFP contemplated the award of an indefinite-delivery,
indefinite-quantity contract. Sections M.2 and M.3 of the RFP stated
that award would be based on the proposal offering the greatest value
to the government, as determined by an evaluation of the stated
criteria for Phase I (mini-proposal and past performance survey) and
the evaluation factors listed for Phase II (oral presentation slides,
personnel data forms (PDF), and cost). There were 28 subfactors to be
evaluated under the oral presentation factor.
Section I.12 and paragraph 4.2.1 of section L.9 of the RFP listed 10
labor categories, all designated as key personnel positions, and
required offerors to submit PDFs for a stated percentage of the
personnel proposed for each labor category. Pursuant to section L.8
of the RFP, the PDFs were to include the qualifications and history of
education and employment for an offeror's proposed personnel. Section
C.1.4 of the RFP stated the minimum qualifications for personnel
proposed for each labor category. Section M.4 of the RFP stated:
The quality and quantity of all proposed personnel must meet the
stated minimum qualification in Section C.
Section H.9(a) of the RFP stated:
The contractor agrees to assign to the contract those persons
whose [PDFs] were submitted with the proposal.
After the Phase I evaluation was completed, the Coast Guard received
Phase II initial proposals from five offerors, including RGII and FYI,
by the August 4 due date. All of the offerors proposed personnel in
their PDFs who failed to meet the RFP's minimum personnel
qualifications. The agency conducted discussions on this issue and on
cost, and requested best and final offers (BAFO). All five offerors
submitted BAFOs.
Although all BAFOs were rated as "green/satisfactory" overall, only
FYI's proposed personnel met all of the minimum qualifications; the
BAFOs submitted by RGII and the other offerors proposed personnel who
did not meet the minimum personnel qualifications. Even though the
technical evaluation team initially recommended award to FYI or a
third offeror, the source selection official ultimately noted that all
proposals were rated green/satisfactory overall, and awarded the
contract to RGII, the lowest-priced offeror.
FYI protested that award to our Office on a number of bases, including
that RGII's proposal was technically unacceptable. We sustained that
protest because RGII's proposal was technically unacceptable for
failing to satisfy the minimum personnel qualifications. Since after
discussions on personnel qualifications, all of the BAFOs, except
FYI's, continued to have deficiencies in this respect, FYI's BAFO
appeared to be the only technically acceptable offer. We thus
recommended terminating the contract to RGII and awarding the contract
to FYI, if, after reviewing FYI's BAFO, the agency determined that
FYI's proposal was indeed technically acceptable.
On December 24, RGII requested reconsideration of that decision. On
January 9, 1998, after determining that FYI's proposal was acceptable,
the Coast Guard determined to terminate the contract to RGII and to
award the contract to FYI. RGII requested and received a debriefing,
and then timely protested to our Office.[1]
REQUEST FOR RECONSIDERATION
RGII alleges that our decision was erroneously decided because (1) the
deficiencies in the qualifications of its proposed personnel were
correctable; (2) the agency had the discretion to permit such
correction through substitution of personnel after award; (3) the
personnel deficiencies did not render its proposal unacceptable
because the PDFs were not considered part of the proposal and these
deficiencies were only evaluated weaknesses; (4) our decision
improperly imposed a de novo evaluation in place of the agency's
evaluation; and/or (5) our recommendation should have required the
agency to reopen discussions.
In order to obtain reversal or modification of a decision, the
requesting party must convincingly show that our prior decision
contains either errors of fact or law, or present information not
previously considered which warrants reversal or modification of the
decision. Eagle Transfer, Inc.--Recon., B-235348.2, Oct. 17, 1989,
89-2 CPD para. 360 at 2; 4 C.F.R. sec. 21.14(a) (1997). Repetition of
arguments made during consideration of the original protest or mere
disagreement with our decision does not meet this standard. Eagle
Transfer, Inc.--Recon., supra. Here, RGII has provided no basis to
modify or reverse our prior decision.
RGII does not dispute that a proposal which fails to conform to
material terms and conditions of the solicitation should be considered
unacceptable and may not form the basis for an award. See National
Med. Staffing, Inc.; PRS Consultants, Inc., 69 Comp. Gen. 500, 502
(1990), 90-1 CPD para. 530 at 3. Instead, RGII contends that the
requirement that offerors propose personnel on the PDFs that meet the
minimum qualifications stated in the RFP is not a material term or
condition.
As noted, section M.4 of the RFP expressly required that all proposed
personnel meet the stated minimum personnel qualifications. Contrary
to RGII's contention, this requirement was a material term and
condition of the RFP because it affected both the quality and price of
contract performance; RGII has not produced any evidence to the
contrary. Nor does RGII allege that its proposed personnel met the
stated personnel qualification requirements.
RGII's allegation that the requirements are not material because the
PDFs either were not "part of the proposal" or did not carry much
relative weight under the stated evaluation scheme, misses the point.
RGII proposed personnel who did not meet the RFP's qualification
requirements, as was required by section M.4 of the RFP. Since RGII's
proposed personnel failed to meet these material requirements, its
BAFO was unacceptable and could not form the basis for an award,
regardless of where the PDFs were located within RGII's submission or
how little weight PDFs carried under the RFP's evaluation scheme.
Moreover, as discussed in our prior decision, the provisions in the
contract relating to substitution of personnel are predicated upon the
agency's approval of acceptable personnel named in the proposal, not
upon allowing an offeror to provide acceptable personnel after award
to replace unacceptable personnel named in a proposal. In any case,
the fact that there is provision in the contract that allows for
substitution of personnel after award does not render proper an agency
award predicated upon the acceptance of a proposal premised on
unacceptable personnel. As indicated in our prior decision, this
acceptance constituted an agency waiver of the personnel qualification
requirements for RGII, which resulted in an unfair and unequal
evaluation. See Martin Marietta Corp., 69 Comp. Gen. 214, 219 (1990),
90-1 CPD para. 132 at 7.
Furthermore, contrary to RGII's allegations, our decision did not
simply reject the agency's evaluation and selection decision to impose
an award decision of our own. Instead, we reviewed the agency's
evaluation and selection decision for reasonableness and consistency
with the stated evaluation scheme, which is the proper standard for
our Office's review of such protests. See Abt Assocs., Inc.,
B-237060.2, Feb. 26, 1990, 90-1 CPD para. 223 at 4. The record showed
that the agency, in both its evaluation and the selection decision,
acknowledged that RGII's proposal did not satisfy the qualification
requirements, and the record further showed that this evaluation was
reasonable and undisputed. Yet the RFP expressly stated that proposed
personnel "must meet the stated minimum qualification" requirements.
As stated, we found it unreasonable and inconsistent with the terms of
the RFP for the agency to conclude that it could make an award based
on a technically unacceptable proposal and require correction of the
deficiencies after award. Thus, we did not impose our own evaluation
of proposals or selection decision, but merely identified that the
agency's evaluation showed that four of the five BAFOs submitted were
unacceptable and that an award could be made only based on an
acceptable proposal.
Lastly, RGII's request for reconsideration alleges that our
recommended remedy was improper because it did not instruct the agency
to reopen discussions and provide RGII with an opportunity to correct
its deficiencies. However, the agency had already conducted
discussions with RGII and all other offerors on the deficiencies with
their proposed personnel and provided them with an opportunity to
revise their proposals.[2] The agency had no obligation to advise
these offerors that such deficiencies remained in their BAFOs or to
provide an additional opportunity for proposal revision. Hughes
Training, Inc., B-256426.4, Jan. 26, 1995, 95-1 CPD para. 154 at 8. Since
the agency was not required to conduct discussions with offerors whose
BAFOs were technically unacceptable, our recommendation appropriately
focused on consideration of the only apparently acceptable BAFO.[3]
See Essex Corp., B-246536.3, June 25, 1992, 92-2 CPD para. 170 at 9-10,
recon. denied, Wackenhut Servs., Inc.--Recon., B-246536.4, Aug. 31,
1992, 92-2 CPD para. 137 at 4-6.
In sum, RGII's request for reconsideration does not establish the
existence of errors of fact or law in, nor present new information
that warrants reversal or modification of, our prior decision.
PROTEST
RGII's protest of the agency's decision to terminate RGII's contract
and award to FYI alleges: (1) FYI must be disqualified from competing
under this RFP because its submission of the original oral
presentation slides after the initial proposal due date constituted an
unacceptable late proposal; (2) FYI's proposal is technically
unacceptable because it fails to meet material RFP requirements; (3)
the agency's use of a color/adjectival rating scale constituted an
unstated evaluation criterion; and (4) the agency did not conduct
meaningful discussions with RGII.[4]
With regard to the submission of FYI's original slides, the
instructions for submitting proposals at RFP section L.9, paragraph
4.3.2, stated that an offeror was to submit its original oral
presentation slides (i.e., overhead projection transparencies) and
seven copies with its offer. Paragraph 4.2.2 of section L.9 stated:
In order to ensure the integrity of the source selection process,
the offeror must use the overhead slides submitted to the
Government with its offer when making its Oral Presentation,
without any alteration. The technical evaluation team may review
the copies of the slides prior to the presentation. The offeror
may submit no other written documentation for its Oral
Presentation. When evaluating the offeror's Oral Presentation,
the Government will consider only those overhead slides that were
actually projected and addressed by the offeror during its
presentation. . . . The Government will process overhead slides
and copies that are received after the deadline for the
submission of offers in accordance with [Federal Acquisition
Regulation (FAR) sec. ] 52.215-10. If the slides and copies are late
and are not accepted for consideration on the basis of FAR [ sec. ]
52.215-10 then the Government will consider the offeror to be
ineligible for award and will not permit that offeror to make an
Oral Presentation.
FYI's proposal submitted prior to the August 4 deadline included seven
copies of its set of oral presentation slides, but did not include the
original set of slides. On August 5, FYI submitted the original set
of slides, as well as a table of contents not previously submitted
with the seven copies. One other offeror submitted the copies of its
slides before the deadline and the original slides after the deadline.
The agency initially informed these two offerors that their proposals
would be rejected as late proposals under FAR sec. 52.215-10 (June 1997).
However, after FYI asserted that the submission of its slides after
the due date constituted a minor informality that could be waived, and
that its proposal could not be considered late, the agency reversed
its decision and permitted both of these offerors to continue
participation in the procurement.
RGII alleges that FYI's proposal was late because FYI's submission
prior to the due date must be considered only a partial proposal
without the original slides. It asserts that, since the RFP stated
that the agency will process slides and copies that are received after
the due date in accordance with FAR sec. 52.215-10, FYI's late submission
of its original slides required disqualification of FYI's proposal
from the competition.
Offerors are responsible for submitting offers, and any modifications
to them, so as to reach the government office designated in the
solicitation on time. FAR sec. 15.412(b) (June 1997). Proposals, and
modifications to them, that are received in the designated government
office after the exact time specified are "late," and shall be
considered only if received before award and the circumstances meet
the specific requirements of the provision at FAR sec. 52.215-10.[5] FAR sec.
15.412(c). This rule regarding late proposals also applies to
proposals which are received in part prior to the deadline, but where
material portions of the proposal are not received until after the
deadline. See Inland Serv. Corp., Inc., B-252947.4, Nov. 4, 1993,
93-2 CPD para. 266 at 4 (proposal was late and not acceptable where the
technical proposal was received on time but the price proposal was
late); Radar Devices, Inc.,
B-249118, Oct. 27, 1992, 92-2 CPD para. 287 at 3 (proposal sent by fax was
late where, even though delivery began before the deadline, the
majority of the proposal was not received prior to the deadline).
However, even where not all of the information which a solicitation
requires is submitted prior to the deadline, the proposal may not be
considered late if the information received by the deadline is
sufficient to constitute a complete proposal, such that the offeror
submitting the proposal did not obtain an unfair competitive
advantage. See Abt Assocs. Inc., 66 Comp. Gen. 460, 462-63 (1987),
87-1 CPD para. 513 at 2-3 (where a solicitation required the submission of
multiple copies of a proposal, the submission of fewer copies by the
deadline was not a late proposal because, even absent the copies, the
content of the proposal was complete); see also Wetlands Research
Assocs., Inc., 71 Comp. Gen. 289, 292 n.7 (1992), 92-1 CPD para. 251 at 5
n.7 (timely submitted proposal which omitted a required photograph and
drawing was not late where the proposal otherwise demonstrated the
offeror's corresponding technical ability). Under such circumstances,
the failure to submit all requested information is a waivable
informality or irregularity. Abt Assocs. Inc., supra, 87-1 CPD para. 513
at 3.
We believe that FYI's submission on August 4 constituted a
sufficiently complete proposal because, though missing the original
set of slides, it contained seven sets of copies of those slides. Any
one set of these copies included all of the information which was to
be evaluated under the corresponding oral presentation criterion.
Thus, none of the content of FYI's offer was missing from its
submission on August 4. Since there is no question that FYI's August
4 submission was received by the agency prior to the deadline, the
proposal is not a late proposal and is not subject to rejection as
late. Id.
We also find that FYI's original set of slides was properly accepted
by the agency, though received after the due date. The RFP's
instruction that the provision at FAR sec. 52.215-10 would be applied to
the submission of the slides was a condition which the RFP imposed on
offerors in addition to the late proposal rule applicable by
regulation to the submission of the entire proposal. Such conditions
may be imposed on offerors to the extent the conditions reflect actual
and reasonable needs of the agency; however, bids and proposals that
deviate from such solicitation conditions need not be rejected in
every case, particularly where the deviation is a matter of form and
not substance. Abt Assocs., Inc., supra, 87-1 CPD para. 513 at 2.[6]
The agency states that the purpose of the condition that offerors
submit all slides with their proposals was to allow the evaluators to
review the content of an oral presentation prior to the presentation,
and to prevent revision of an offeror's oral presentation subsequent
to the initial proposal due date. A total deviation from this
submission condition, e.g., an offeror's failure to submit at least
one complete set of slides, would mean that the content of the oral
presentation could not be reviewed prior to the presentation and the
agency could not determine whether any revisions to that content were
made after the proposal due date. However, where seven sets of an
offeror's slides are submitted by the due date, as here, the purpose
of the condition is satisfied. We thus believe that an offeror's
failure to submit one additional set of slides (whether the original
or a copy) by the proposal due date is a deviation that is a matter of
form, which may be waived.
While FYI's original slides submitted after the submission due date
included a table of contents (i.e., 6 slides out of a total of 138),
this deviation was also one of form rather than substance. The table
of contents did not identify any new information; it merely stated the
title of each slide and the corresponding slide number; otherwise, the
original slides were identical to the copies. Moreover, FYI did not
use the table of contents in its oral presentation and, consistent
with the instructions at RFP section L.9, the agency did not consider
the table of contents in its evaluation because it was not used in the
oral presentation.
Although RGII alleges that it was unfairly prejudiced by the waiver of
the condition for submitting all slides, it has not produced any
evidence of such prejudice, except to argue that, by not disqualifying
FYI, the agency prevented RGII from receiving the award. However,
unfair competitive prejudice from a waiver or relaxation of the terms
and conditions of the RFP for one offeror exists only where the
protester would have been able to alter its proposal to its
competitive advantage, were it given a similar opportunity. See
Container Prods. Corp., B-255883, Apr. 13, 1994, 94-1 CPD para. 255 at 4.
Since the waiver here resulted only in the acceptance of a duplicate
of the information previously submitted, and thus the contents of the
timely submission could not change, the waiver resulted in no
competitive prejudice.
RGII next alleges that FYI's proposal is technically unacceptable
because it did not satisfy five material requirements of the
solicitation. These alleged material requirements relate to 5 of the
28 total subfactors of the oral presentation, which is the most
important evaluation factor. FYI's BAFO received "yellow/marginal"
ratings under these five subcriteria.[7] RFP section M.6 defined a
"yellow/marginal" rating as:
Fails to meet the minimum requirements; has one or more
deficiencies, but they are correctable without major revisions.
The agency states that, in response to the recommendation made in our
prior decision, it reviewed FYI's proposal and found no deficiencies.
Rather, the "yellow" ratings were given as a result of evaluated
weaknesses in the content of FYI's oral presentation under the five
identified subfactors. The agency reviewed FYI's BAFO, and determined
and documented that FYI's BAFO complied with all material terms and
conditions of the RFP, particularly with respect to the five
subfactors in question, such that FYI's BAFO was technically
acceptable.
The protester has identified no requirements related to the five
subfactors which were not satisfied by FYI's BAFO. Although the
agency's report on this protest specifically and reasonably addressed
the acceptability of FYI's proposal considering the weaknesses noted
under each subfactor, the protester's comments on the report merely
express RGII's general disagreement with the agency's decision to
determine FYI's proposal acceptable, notwithstanding the "yellow"
ratings.
For example, one of the five subfactors was:
c6. Demonstrate your company's corporate knowledge, experience,
and ability to develop job aids and user guides for office
automation [OA] applications.
The agency evaluation assigned a yellow rating to FYI's oral
presentation under this subfactor because the presentation did not
cover the development of user guides for OA applications. The agency
provided the following rationale to explain why this did not represent
a failure to comply with material terms and conditions of the RFP:
FYI received a blue [superior rating] in subfactor c1 providing
OA support for [Technical] Exhibit One OA applications. They
also discussed the fact that they have knowledge supporting the
required OA applications. In addition, FYI also indicated that
they have experience developing job aids and user guides.
Although FYI did not identify that they had developed user guides
for the OA application in Technical Exhibit One, this is not
material due to the combination of FYI's stated ability to
support the OA applications and their stated experience
developing job aids and user guides.
Our review of the RFP revealed that, while offerors were required to
demonstrate their corporate experience in developing job aids and user
guides for OA applications, the RFP set no minimum requirement in this
area other than at section C.1.4.8, which stated that experience in
developing user guides was a personnel qualification requirement for
the training specialist. It is undisputed that the person FYI
proposed for the training specialist position met this requirement.
Other work requirements stated in section C required the contractor to
prepare user guides, and FYI's BAFO did not take exception to these
requirements.
As indicated, RGII did not specifically respond to the agency's
documented reasons for finding FYI's proposal acceptable, but merely
generally disagreed with the agency's decision in this regard. On
this record, we find that the agency reasonably determined FYI's
proposal was acceptable.
RGII's allegation that the color/adjectival ratings employed by the
agency were unstated evaluation factors has no merit. Essentially,
RGII alleges that its proposal was deemed technically unacceptable,
both by our decision on FYI's protest and subsequently by the agency,
because RGII's proposal received "red/unsatisfactory" ratings under
several subfactors, including the evaluation of personnel under the
PDF factor. In fact, RGII's BAFO was technically unacceptable because
it failed to meet the mandatory personnel qualifications requirements,
not merely because the proposal received a "red" rating. It is well
established that ratings, be they numerical, color or adjectival, are
merely guides for intelligent decision-making in the procurement
process. Grey Advertising, Inc., 55 Comp. Gen. 1111, 1118 (1976),
76-1 CPD para. 325 at 9. Here, the ratings reflected proposal strengths,
weaknesses, and deficiencies identified by the evaluators to assist in
the decision-making process; they were not themselves evaluation
factors. See Israel Aircraft Indus., Ltd., MATA Helicopters Div.,
B-274389 et al., Dec. 6, 1996, 97-1 CPD para. 41 at 7.
RGII finally alleges that it did not receive discussions on areas of
its proposal, other than proposed personnel, which the agency had
evaluated as weak or deficient, and thus RGII did not receive
meaningful discussions. Since the agency did conduct discussions with
RGII identifying the deficiencies in its initial proposal regarding
its proposed personnel, and since RGII's subsequent BAFO remained
technically unacceptable on that basis, RGII's BAFO was ineligible for
award, regardless of any other evaluated weaknesses or deficiencies.
Since meaningful discussions were conducted on a deficiency which
ultimately rendered RGII's BAFO technically unacceptable, we need not
address the other allegations concerning discussions.
The request for reconsideration and the protest are denied.
Comptroller General
of the United States
1. After FYI filed its prior protest, the agency authorized
performance of the contract by RGII as being in the best interest of
the government. The agency then determined that it would delay the
termination of the contract to RGII and the award to FYI, pending the
resolution of RGII's request for reconsideration and protest.
2. While RGII asserts that the agency did not specifically advise
offerors during discussions of the consequences of a failure to
propose personnel who met the qualification requirements, there was no
need for it to do so, given that the RFP clearly required proposals to
meet the minimum personnel qualification requirements stated in the
RFP.
3. Nevertheless, our decision did not prohibit the agency from
reopening discussions if it determined such action was appropriate.
4. RGII initially alleged that selection of FYI's BAFO for award was
not in accord with the stated greatest value selection scheme. In its
report responsive to the protest, the agency fully justified the
decision to make award to the only offeror which submitted an
acceptable proposal, FYI. Since the protester did not rebut the
agency's position in its comments, we consider RGII to have abandoned
this basis of protest. Akal Sec., Inc., B-261996, Nov. 16, 1995, 96-1
CPD para. 33 at 5 n.5.
5. The circumstances that permit acceptance of a proposal or
modification received after the due date generally concern a
submission that is timely sent, but received late due either to delays
in specified mail services or to mishandling by the government, or one
that is submitted late and is the only proposal received. FAR sec.
52.215-10. None of the exceptions stated in FAR sec. 52.215-10 for
accepting a late proposal apply here.
6. RGII alleges that Abt Assocs., Inc. is not applicable to this RFP
condition because that decision predates the provision at FAR sec.
52.215-10. This allegation is incorrect. FAR sec. 52.215-10 (1985),
which has not changed in any material way in regard to the issues
here, was specifically cited in Abt Assocs., Inc., supra, at 2.
7. These "yellow" ratings were the basis for our recommending in our
decision on FYI's protest that the agency review FYI's proposal to
determine its acceptability before making award to FYI.