BNUMBER: B-278358
DATE: January 20, 1998
TITLE: Compania De Asesoria Y Comercio, S.A., B-278358, January 20,
1998
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Matter of:Compania De Asesoria Y Comercio, S.A.
File: B-278358
Date:January 20, 1998
Fernando Barria for the protester.
Carlos A. De Obaldia, Esq., De Obaldia & Garcia De Paredes, for CBH
Construcciones, an intervenor.
Col. Nicholas P. Retson and Capt. John C. Lavorato, Department of the
Army, for the agency.
Jacqueline Maeder, Esq., and Paul Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Agency evaluation of protester's proposal is unobjectionable where
the record
shows that the evaluation was reasonable and consistent with the
stated evaluation factors; protester's mere disagreement does not
render the evaluation unreasonable.
2. Under best value solicitation in which technical factors were more
important than price, selection on the basis that awardee's overall
technical superiority warranted payment of the associated price
premium is unobjectionable and consistent with the evaluation scheme
where the agency reasonably evaluated the awardee's higher-priced
proposal as offering a superior program management and technical
approach.
DECISION
Compania De Asesoria Y Comercio, S.A. (ASECOSA) protests the award of
a contract to CBH Construcciones, S.A. under request for proposals
(RFP) No. DAJN21-97-R-0039, issued by the Department of the Army for
grounds maintenance services at various U.S. military installations in
Panama. ASECOSA objects to the evaluation of its proposal and asserts
that the determination to award to a firm which did not offer the
lowest-priced technically acceptable proposal was unreasonable.
We deny the protest.
The solicitation, issued July 18, 1997, contemplated the award of a
firm, fixed-price contract for a base year with a 1-year option. The
RFP was for grounds maintenance services at 11 installations on the
south side of the isthmus of Panama. The statement of work (SOW) at
section C.5 listed 15 requirements, including: mowing, edging and
trimming of improved grounds and semi-improved grounds, tree pruning,
resodding, removal of dead/down trees, replanting trees and shrubs,
leaf and debris removal, sanding and maintaining specified
playgrounds, clearing right-of-way of aerial electrical lines, insect
and disease control to damaged plants, clearing area, and special
grass cutting services.
At section M, the RFP provided for award to the offeror whose
conforming proposal was determined to be the best value to the
government. The RFP identified the following evaluation factors and
subfactors, listed in descending order of importance, except as
specifically otherwise stated:
1. Management
a. Past Performance
b. General Management Techniques
2. Technical
a. Technical Approach
3. Quality Control
a. Specific Inspection Techniques
b. Corrective Action
4. Price
Management was more important than either technical or quality
control, which were stated to be of equal importance, and price was
least important. Subfactors under management and quality control were
stated to be of equal importance. The RFP provided that each factor
and subfactor, with the exception of price, would be evaluated using
color/adjectival ratings--green/outstanding, blue/good,
yellow/acceptable, orange/susceptible, and red/unacceptable--which
would represent the evaluators' views as to an offeror's understanding
of the problem, compliance with the requirements, and the soundness of
its approach. In addition, performance risk ratings--green/low,
blue/moderate, beige/high, and neutral[1]--were used to represent the
evaluator's assessment of an offeror's probability of successful
accomplishment of the requirement, based on the offeror's record of
performance for the past 3 years.[2]
The RFP advised that overall price would be evaluated by adding the
price for the base requirement to the price for the option. The RFP
also provided for a cost realism analysis, which included an
assessment of whether the offeror's proposed price reflected a clear
understanding of the solicitation requirements.
The agency received five proposals, including those of ASECOSA (the
incumbent contractor) and CBH, by the August 18 closing date. A
four-member source selection evaluation board (SSEB) evaluated the
proposals based on a 24-question checklist, which included detailed
management and technical criteria.[3] Based on the initial
evaluation, four of the proposals, including ASECOSA's and CBH's, were
included in the competitive range. On September 3, discussions in the
form of written items for negotiations were issued along with the
request for best and final offers (BAFO). BAFOs were received by
September 10. The final ratings for the awardee's and the protester's
proposals were as follows:
ASECOSA CBH
1. Management (Overall) Acceptable/Yellow Good/Blue
a. Past Performance Good/Blue Good/Blue
b. General ManagementAcceptable/Yellow Good/Blue
2. Technical (Overall) Acceptable/Yellow Good/Blue
3. Quality Control (Overall)Good/Blue Good/Blue
a. Specific Inspection
Techniques Good/Blue Good/Blue
b. Corrective Action Good/Blue Good/Blue
4. Price $1,295,721.32 $1,668,968
CBH's proposal was rated higher under management in large measure
because the awardee proposed a unique organizational structure, which
divided the work sites into two groups with a supervisor and work
teams for each group. CBH also proposed a supply section/group. In
contrast, the protester's management was evaluated as acceptable
because it submitted an adequate organizational structure, with one
supervisor responsible for all work sites. The agency determined that
the awardee's organizational structure would provide superior overall
management control and contract administration. Similarly, CBH's
overall technical rating was higher than ASECOSA's primarily because
CBH provided a complete detailed description of all tasks and listed
equipment needed for each task. While ASECOSA provided a "Resources
Utilization" chart, it did not provide specific details or
descriptions, and the agency found the chart difficult to
understand.[4] In addition, because ASECOSA's price was 17 percent
lower than the independent government estimate, the agency evaluators
questioned whether ASECOSA had a clear understanding of the level of
effort necessary to meet the RFP requirements. Based on these
evaluation results, the source selection official determined that
CBH's proposal represented the best value to the government and the
agency awarded the contract to CBH on October 3. After ASECOSA
received a debriefing on October 7, it filed this protest with our
Office.
The protester argues that the agency improperly evaluated its
management proposal concerning its performance risk and mobilization
and also misevaluated ASECOSA's technical proposal. Generally, the
protester argues that it provided sufficient information concerning
its approach to tasks and its resources and that any omissions were
insignificant. ASECOSA also argues that the agency's source selection
determination was unreasonable, taking the position that it was
entitled to the award because it submitted the lowest price offer that
reflected the ability to meet the government's needs.
PERFORMANCE RISK
ASECOSA's proposal received a blue/good rating for the past
performance subfactor under management, and a "moderate" risk
assessment based on its past performance record. The protester
challenges the moderate risk assessment, arguing that its past
performance record should be assessed as low risk, pointing to, among
other things, 10 years of grounds maintenance work, no evidence of
poor performance, no "cure" notices or "show cause" notices in its
government contracts, and the accomplishment of the required tasks in
all of its contracts to support its position.
The evaluation of technical proposals is a matter within the
discretion of the contracting agency, since that agency is responsible
for defining its needs and the best method of accommodating them.
Mesa, Inc., B-254730, Jan. 10, 1994, 94-1 CPD para. 62 at 5. In reviewing
an agency's technical evaluation, we will not reevaluate the
proposals; rather, we will examine the record to ensure that the
evaluation was reasonable and consistent with the RFP evaluation
criteria. Id. A protester's disagreement with the agency's judgment,
standing alone, is not sufficient to establish that the agency acted
unreasonably. Ionsep Corp., Inc., B-255122, Feb. 10, 1994, 94-1 CPD para.
97 at 3.
Here, we find without merit ASECOSA's contention that the evaluation
of its past performance was improper. The record shows that the
protester submitted a list of 13 references, four of which the agency
determined were for work similar in size and scope to the work
required here, including the protester's performance as the incumbent
contractor. Three of the four references responded to the agency's
requests regarding ASECOSA's performance.
ASECOSA received an overall evaluation of "satisfactory" from one
reference and another reference stated that ASECOSA had not performed
long enough for a fair evaluation. Under its current contract as
incumbent, ASECOSA had received seven deficiency reports outlining,
for example, deficient mowing, removal of trash and debris, edging,
and maintenance of plantings. These deficiency reports, viewed in
conjunction with the "satisfactory" rating on another contract, caused
the agency evaluators to conclude that there was some doubt as to
whether ASECOSA would be able to adequately perform the requirements
under the RFP. Based on this, the agency determined that a past
performance rating of "good" and a risk assessment of "moderate" were
appropriate.
While ASECOSA apparently has never received a cure notice or a show
cause notice, it concedes that under the current contract, "some
problems have occurred" in its performance. Clearly, the six
deficiency notices support the assessment that ASECOSA has not
completely adequately performed the current contract and has been
repeatedly notified of shortcomings. While it may be true, as ASECOSA
argues, that it resolved the performance problems satisfactorily, the
protester does not dispute the fact that the deficiency notices were
issued and that, in response, it did re-perform some of the services.
Accordingly, we see nothing unreasonable in the agency's risk
assessment.
MOBILIZATION
The protester also argues that its proposal was improperly evaluated
with respect to its proposed transportation for its work force. The
RFP at section C.4.3 required that the contractor provide
transportation for mobilization of its work force. Each contractor
vehicle was to be identified with the contract number, contractor
name, and office phone number.
In its proposal, ASECOSA listed the equipment it would use, including
two pick-up trucks for moving personnel and small equipment and a
flatbed truck for moving heavy equipment. The Army determined that
the protester's proposal was not detailed enough, because the
protester failed to explain how the equipment would be utilized in
relation to the different SOW tasks. The protester's proposal was
rated orange/susceptible under this management criterion.
While agencies must identify in a solicitation all major evaluation
factors, they are not required to identify all areas of each factor
which might be taken into account provided that the unidentified areas
are reasonably related to or encompassed by the stated criteria.
JoaQuin Mfg. Corp., B-275185, Jan. 29, 1997, 97-1 CPD para. 48 at 2. As
noted above, the RFP required information from each offeror as to how
the offeror intended to mobilize its work force. While the
solicitation does not specifically request that an offeror explain its
mobilization plan in relation to the different SOW tasks, this
information reasonably relates to the need for the vehicles and the
transportation of the work force. The protester points to nothing in
its proposal to substantiate its position that it was misevaluated
other than reiterating the information it provided and stating that
"mobilization is not a complicated management problem . . . ." The
protester's mere disagreement with the evaluation does not render the
evaluation unreasonable.
TECHNICAL PROPOSALS
The RFP at section L stated that technical approach to performing
tasks consisted of methodology and resources. The solicitation stated
that offerors were to submit a narrative methodology section and a
resources section. The RFP advised each offeror to describe in its
methodology section how each task would be accomplished and, in its
resources section, specify its specific work resources in support of
the contract effort, including personnel, equipment, and materials.
The RFP also advised that the equipment and materials description
should be provided in sufficient detail to demonstrate understanding
of the materials necessary for meeting the solicitation's
requirements.
In its technical proposal, ASECOSA provided, among other things, a
three-page outline of its methodology for the tasks listed in the SOW,
descriptions of its specific task teams, a three-page listing of
equipment, and a discussion of its equipment repair and maintenance
operation. As noted above, the proposal also included a Resources
Utilization chart. In its final evaluation, the agency determined
that ASECOSA's technical proposal did not adequately address how each
task would be performed and, as noted above, found the Resources
Utilization chart confusing and difficult to interpret.
ASECOSA argues generally that its proposal did explain how it would
perform the work, citing specifically its response to clearing area
procedures and maintaining playground areas in its BAFO. The
protester also argues that its Resources Utilization chart is clear
and legible and "only needed adequate research," in order for the
agency to fully understand ASECOSA's proposed procedures.
Based on our review of the record and notwithstanding ASECOSA's
disagreement, we see no reason to object to the evaluation. ASECOSA
provided a three-page description of its methodology for completing
the required tasks and discusses the equipment and workers it will use
to complete each task, but provided little information on how it will
perform the tasks. For example, its methodology for plant maintenance
states:
[These services] will be performed by Team of Gardeners: team of
trained gardeners are assigned to specific areas of performance.
They are in charge of watering, plantings, resodding, insect and
pest control or other special gardening functions. The assigned
personnel will receive training at the COMPANY green house
operation before they are assigned to gardening functions. The
grounds maintenance crew of brush cutters and personnel for
policing will identify gardeners under training, to support
gardening functions. Personnel with gardening experience will be
rotated through our green house operation to receive proper
training and certification.
Similarly, the methodology on insect and disease control to damaged
plants states:
[This function] will be performed by trained gardeners under the
supervision of license[d] personnel. Personnel assigned to this
function will be trained in our green house operation, and
certified prior to being assigned to their duties.
The agency reasonably concluded that neither of these responses
explains how the protester intended to perform the tasks. No steps to
performing the tasks are outlined and no procedures are listed. The
protester provides only general information; for example, that the
work will be performed by experienced personnel and that workers will
be trained in ASECOSA's greenhouse operations, which are unrelated to
how ASECOSA will perform the tasks.
The protester's assertion that it provided a detailed methodology for
clearing areas and maintaining playgrounds is also inconsistent with
the record. The protester's narrative description of its procedures
for clearing an area provides no concise steps or procedures the
workers are to execute. Instead, ASECOSA's narrative describes the
personnel and equipment to be used. As to procedures, ASECOSA's
narrative simply states that workers "will execute the clearing, and
will pick up the material resulting from the clearing." Similarly,
ASECOSA's narrative on maintaining playgrounds reviews its experience
with this task, states that personnel assigned must be excellent
gardeners and specifies that it coordinates with playground personnel
both before and after performing the task. The protester also
discusses the sand to be provided and the equipment it would use for
replacement of large quantities of sand.[5]
In addition, we reviewed the Resources Utilization chart provided by
the protester, and we see why the agency evaluators found it difficult
to understand. As an example, the agency points to the protester's
entry on the chart for the mowing of improved areas and notes that
ASECOSA identified 19 employees who would participate in completing
the task, including two managers/supervisors and three truck/tractor
drivers. Fifteen motor vehicles are listed as being used to complete
this task and, of these, three types of vehicles are repeated three
times. Other entries are similarly confusing. We see no basis to
question the agency's determination that the protester's Resources
Utilization chart was difficult to interpret. Under these
circumstances, we find nothing improper in the agency's evaluation of
the protester's technical proposal.
SOURCE SELECTION DECISION
Finally, ASECOSA argues that the award selection was improper,
alleging that any deficiencies shown in its proposal are insignificant
and that the benefits offered by the awardee's proposal do not merit
the payment of an additional $373,246.68.
Source selection officials in negotiated procurements have broad
discretion in determining the manner and extent to which they will
make use of technical and cost evaluation results. Roy F. Weston,
Inc., B-274945 et al., Jan. 15, 1997, 97-1 CPD para. 92 at 17. Agencies
may make cost/technical tradeoffs in deciding between competing
proposals and the propriety of such trade-offs turns not on the
difference in technical scores or ratings per se, but on whether the
selection official's judgment concerning the significance of that
difference was reasonable and adequately justified in light of the RFP
evaluation scheme. Id.
ASECOSA's objection is premised on its view that the agency was
required to award to the lowest-priced technically acceptable offeror,
which had been the award criterion for the predecessor contract under
which ASECOSA received the award. However, as noted above, the
current RFP provided for award on a best value basis, listing price as
the least important factor, and indicated that price may become the
determining factor if proposals are evaluated as equal under the
management, technical and quality control factors. Here, the two
proposals were not evaluated as equal under these factors.
The source selection authority (SSA) reviewed the full record,
including advantages and disadvantages cited for the proposals as well
as the color/adjectival ratings and cost evaluation results. The SSA
concluded that CBH offered the most advantageous proposal on the basis
that CBH submitted the highest-rated proposal, which demonstrated a
clear understanding of the requirements, provided a complete
description of all work tasks, and proposed a unique organizational
structure, which warranted payment of the associated price premium.
The protester's objection provides no basis to call into question the
selection decision, which reflects an appropriate comparison of the
competing proposals and includes a reasoned determination for the
selection of the higher-priced proposal under an RFP in which
management and technical factors were set forth as more important than
price. ASECOSA's view that award was required to be made to the
lowest-priced technically acceptable offeror simply does not
accurately reflect the RFP award criteria.[6]
The protest is denied.
Comptroller General
of the United States
1. A neutral rating was to be assigned to a firm with no past
performance history.
2. In relevant part, section M provided that a blue/good rating would
be assigned where the proposal demonstrated an approach which
satisfied all the government's requirements with adequate detail to
indicate feasibility of approach and an understanding of the problem,
with a low to moderate degree of risk in meeting the government's
requirements. A yellow/acceptable rating would be assigned where the
proposal demonstrated an approach which barely satisfies all of the
government's requirements with minimal detail to indicate feasibility
of approach and an understanding of the problem, with a moderate to
high degree of risk in meeting the government's requirements.
3. For example, management criteria included such things as the
inclusion and adequacy of the offeror's organizational chart,
equipment storage and maintenance information, mobilization plans for
transporting equipment and personnel, and procedures for completing
special services. Technical criteria included such things as the
adequacy of the offeror's description of personnel and equipment
assigned to the different tasks and the description of how the offeror
intended to accomplish the different tasks, such as insect and disease
control, mowing improved and unimproved grounds, resodding,
maintaining playgrounds, and tree pruning.
4. The chart provided a matrix which contained a numerical listing of
personnel, rental equipment, and maintenance equipment for each task.
The chart also provided an analysis of the cost to perform each task
based on the personnel and equipment to be used to perform the task.
5. In contrast, the awardee listed and detailed the steps in
maintaining playgrounds. Specifically, the awardee stated that it
would prepare within its facility a collecting area, stocked with sand
approved by the agency and that, before delivering the sand, it would
strain the sand with a number 4 sieve. The awardee also stated that
it would replace 1 cubic yard of sand on a weekly basis and that the
sand would be delivered in a dump truck, placed on resistant plastic
sheets, and carried to the playground in wheelbarrows. The sand would
then be raked and leftovers would be returned to the awardee's storage
area. The awardee stated that the area would be perfectly cleaned due
to the use of the plastic sheets, which facilitate collection of sand
leftovers. Finally, a rubber band around the playground perimeter
would be kept in proper position to keep the sand in the proper area.
6. To the extent that ASECOSA is arguing, after award, that the award
should have been made on the basis of the lowest-priced technically
acceptable offer, its protest constitutes an untimely challenge to the
RFP's award criteria, which did not so provide. Blue Cross-Blue
Shield of Tennessee, B-210227, 83-1 CPD para. 555 at 2-3. Our Bid Protest
Regulations require that protests of alleged improprieties in an RFP
which are apparent prior to the closing time for submission of initial
proposals be filed prior to that time. 4. C.F.R. sec. 21.2(a)(1) (1997).