BNUMBER: B-278451
DATE: January 30, 1998
TITLE: COMPA Industries, Inc., B-278451, January 30, 1998
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Matter of:COMPA Industries, Inc.
File: B-278451
Date:January 30, 1998
Robert W. Tate, Esq., The Beles Group, for the protester.
Paul R. Davis, Esq., and Gena E. Cadieux, 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 award of contract to same offeror for two of four support
service categories, for which solicitation sought separate offers, is
precluded by an eligibility restriction intended to alleviate conflict
of interest concerns is denied where the restriction, as amended, can
only reasonably be interpreted to mean that offerors are eligible for
awards for different service categories, and requires only that
services provided under one category be independent of one clearly
specified area under other support service categories.
DECISION
COMPA Industries, Inc. protests the award of a contract for two
separate task categories to Informatics Corporation under request for
proposals (RFP) No. DE-RP06-97RL13732, issued by the Department of
Energy (DOE) for support services at its Hanford, Washington site.
COMPA contends that the solicitation precluded the award of both task
categories to the same offeror and that the agency failed to follow
the solicitation evaluation criteria.
We deny the protest.
The solicitation, issued June 25, 1997, via the Internet, sought
contractors to perform support services in four separate service or
task categories, including project management and engineering services
(task 1); environment, safety, health and security services (task 2);
financial and administrative services (task 3); and independent
assessment services (task 4). Task 1 was open to all firms; tasks 2,
3 and 4 were set aside for small businesses. The solicitation
contemplated the award of fixed unit price, labor hour contracts for a
3-year base period with two 1-year options. Specific work to be
performed under each contract was to be set out in task orders which
would be issued as needed during the life of the contract. Awardees
under each task compete for individual task orders on the basis of
Fiscal Year Work Plans (FYWP).[1]
The RFP provided detailed descriptions of the work to be performed
under each of the four service categories. As relevant here, task 4
required the contractor to assist DOE personnel in their coordination,
administration, and management of independent, expert review panels.
Originally, DOE hoped to establish independent, expert review panels
in many different areas affecting the Hanford site. Therefore, to
avoid situations where a contractor was managing an expert panel
charged with reviewing work performed by the contractor's own company
under a different task, the RFP precluded offerors from submitting
offers on both task 4 and any of the other tasks. Specifically, the
solicitation originally stated at paragraph L-8:
Note: Because of the nature of activities to be performed under
the
Independent Assessment Services category, offerors are restricted
from submitting offers for all or any combination of the
remaining
support services categories when proposing on the Independent
Assessment Services. Offers received inconsistent with this Note
will be considered nonresponsive.
The agency subsequently determined that there would not be the need or
the funds to have independent expert review panels in the many areas
originally anticipated; rather, the need for independent review panels
was not likely for any area other than Tank Waste Remediation System
(TWRS) privatization, which includes certain issues related to spent
nuclear fuels. Consequently, prior to receipt of initial proposals,
DOE issued amendment 002, which revised the RFP to more accurately
describe the services required and the eligibility guidelines.
Specifically, in the cover letter to amendment 002, the agency advised
offerors that the requirements relative to the service category
entitled Independent Assessment Services had been revised and that
under this service category "the support services provided must remain
independent from support services provided to TWRS privatization and
the Spent Fuels Project work." Amendment 002 revised paragraph L-8 to
state:
Note: Because of the nature of activities to be performed
under the Independent Assessment Services category,
offerors awarded a contract for this service category will
not be eligible for award of a FYWP or individual task orders
for TWRS Privatization related work under contract(s) for
the other three service categories.
The RFP provided for award to the offerors whose conforming proposals
represented the best overall value to the government and advised that
DOE intended to award on the basis of initial offers without
discussions. The RFP identified experience and past performance as
evaluation factors, listing various subfactors under each. Past
performance and experience were equally weighted, and when combined
were more important than price.
DOE received 41 proposals by the August 25, 1997, closing date, 38 of
which were determined to be acceptable. COMPA submitted an acceptable
proposal for task 4; Informatics submitted acceptable proposals for
tasks 3 and 4. The proposals were evaluated by evaluation teams and a
cost analyst. Based on the evaluations, COMPA did not receive an
award and Informatics was awarded a contract for task 3 and for task
4. This protest followed, in which COMPA seeks to have Informatics
disqualified from performing task 4, and to have a contract for that
task awarded to COMPA.
The crux of COMPA's protest is that the RFP proscribed the award of a
contract to one offeror for both task 4 and any of the other three
tasks. In particular, the protester argues that paragraph L-8, as
amended, states that an offeror awarded a contract to perform task 4
is not eligible for award of TWRS privatization related work or any
FYWP related work. Because the bulk of the work to be awarded under
tasks 1 through 3 is essentially FYWP work, COMPA contends that
offerors awarded contracts that include task 4 are not eligible for
awards under any of the other three tasks.
Where a dispute exists as to the meaning of a solicitation provision,
our Office will resolve the matter by reading the solicitation as a
whole and in a manner that gives effect to all its provisions; to be
reasonable, an interpretation of a solicitation must be consistent
with the solicitation when read as a whole. Lithos Restoration, Ltd.,
71 Comp. Gen. 367, 370 (1992), 92-1 CPD para. 379 at 4; Innovative Tech.
Sys., Inc.,
B-260074, May 24, 1995, 95-1 CPD para. 258 at 8.
COMPA's interpretation of the language in amendment 002 is
unreasonable in context. The original solicitation prohibited the
award of a contract for task 4 and any of the other three tasks.
DOE's cover letter to amendment 002, as noted above, explained that
support services provided under the independent assessment services
category--task 4--"must remain independent from support services
provided to TWRS privatization and the Spent Fuels Project work." The
letter identifies no other services from which task 4 services must
remain independent. The amendment language set forth this same
requirement by stating that offerors awarded a task 4 contract would
not be eligible for award of FYWP or individual task orders for TWRS
privatization related work. This language, read in conjunction with
the cover letter explanation of the amendment, can only reasonably be
interpreted to mean than an offeror awarded a contract for independent
assessment services would not be eligible for an award under an FYWP
for TWRS privatization related work, or an award of any other
individual task order for TWRS privatization related work. The
amendment is intended to, and does, open competition under task 4 to
offerors who may be awarded contracts on any of tasks 1 through 3, and
simply prohibits them from receiving any task orders related to TWRS
privatization. In this regard, the shift in the proscribing language
from designating such offers "nonresponsive" to limiting
"eligib[ility] for award" of such work serves to permit the agency to
control any possible conflicts by the allocation of appropriate task
order awards, while opening up the field of competition.
The protester's suggestion that the amendment language that task 4
services must remain independent of all FYWP related work as well as
independent of TWRS privatization related work is implausible. Under
this interpretation, amendment 002 is identical in meaning to the
original solicitation and thus serves no purpose, notwithstanding the
explicit explanation to the contrary in the amendment cover letter.
That is, under the original language of the RFP, an offeror awarded a
contract for task 4 could not compete for or be awarded a contract on
any other task. Similarly, under the protester's interpretation of
the revised provision, an offeror could not be awarded a contract for
task 4 work and for any other task, since work under these tasks
consists primarily of FYWP work. COMPA's interpretation reflects a
cramped reading of the language of amendment 002 and a disregard for
the stated purpose of the amendment.
COMPA next argues that the agency failed to follow the stated
evaluation criteria in determining the best overall value to the
government.
Section M of the original solicitation included a table of contents
and six paragraphs describing how proposals would be evaluated and how
the agency would determine which proposal offered the best value to
the government, including M-5, Relative Importance of the Factors,
and, M-6, Determining Best Overall Value, which stated that: "In
order to determine which offeror represents the best overall value,
the Source Selection Official will make a series of paired comparisons
among only those offerors who submitted acceptable offers
(proposals)." Paragraph M-6 went on to explain how selections would
be made from each paired comparison, repeating the process until the
official identified the offeror representing the best overall value.
Amendment 001, among other things, deleted paragraph M-4, and revised
M-6 to state that the best value would be determined by evaluating the
offeror's capability along with the estimated price and then assessing
whether the difference between or among competing offerors' proposals
indicates a superiority from the standpoint of (1) what the difference
might mean in terms of anticipated performance and (2) what the impact
of the cost would be as estimated based upon the government's
estimated price. Because of the deletion of M-4, the revised M-6
became M-5. However, the agency inadvertently failed to delete M-4
from the table of contents listing. Thus, while the table of contents
listed six paragraphs in section M, only five paragraphs were actually
included. Amendment 002 correctly deleted M-4 from the table of
contents and correctly re-numbered the remaining paragraphs. No
additional revisions were made to M-5, Determining Best Overall Value.
In its report, DOE stated that it had made the award selection in
accordance with the RFP, citing M-5, Determining Best Overall Value,
and quoting the amended language noted above. COMPA argues that the
"criteria quoted by the [a]gency [are] not the relevant RFP criteria"
and thus show that the agency "failed to follow the controlling RFP
[c]riteria." COMPA goes on to cite revised M-5, Relative Importance
of the Factors, which, as noted above, was re-numbered as M-4 after
the deletion of the original M-4. The record makes clear that the
agency followed M-5 (the revised M-6), the correct controlling
criteria, in determining best value. The protester apparently
misunderstood that a paragraph (M-4) had been deleted, resulting in
the renumbering of the remaining paragraphs. In short, the record
does not support the protester's contention that the agency failed to
follow the correct evaluation criteria. We also note that the
protester fails to provide any indication of how it was prejudiced by
the agency's alleged failure to adhere to Compa's understanding of the
evaluation scheme.
Finally, the protester argues that the agency improperly evaluated the
experience criterion on the basis of past contracts and not on current
capability, "as required under the solicitation," and gave Informatics
credit for relevant experience for services provided in support of a
DOE Carlsbad contract which involved an individual who is currently
employed by COMPA.
The protester points to nothing in the solicitation to support its
contention that the solicitation specified that only current
capability would be evaluated under experience and, in fact,
experience under the solicitation was to be evaluated on three
subfactors, duration (number of years), level (similarity of previous
contracts) and relevance to the service category. Moreover, the
solicitation required offerors to list past contracts and offerors
were evaluated on these past contracts. Informatics provided a list
of contracts for the past 5 years and described the nature of the work
performed under nine of them. Informatics did not list or describe
any contracts with the DOE Carlsbad Area Office and DOE therefore did
not consider the Carlsbad contract to which the protester objects as
part of the evaluation.[2] Under these circumstances, we have no
basis to question the agency's evaluation of Informatics's experience.
The protest is denied.
Comptroller General
of the United States
1. An FYWP consists of a contractor's statement outlining how it
intends to accomplish work under a particular task order in a given
year.
2. Even if Informatics had included the Carlsbad contract in its
proposal, the agency could properly have considered this contract as
part of Informatics's experience as a corporate entity, which does not
depend on the experience of the particular personnel who performed the
work. See Precision Elevator, Inc., B-259375,
Mar. 20, 1995, 95-1 CPD para. 152 at 3-4.