BNUMBER: B-278579.2
DATE: July 29, 1998
TITLE: Possehn Consulting, B-278579.2, July 29, 1998
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Matter of:Possehn Consulting
File: B-278579.2
Date:July 29, 1998
Dennis Possehn for the protester.
Daniel N. Hylton, Esq., Department of Agriculture, for the agency.
Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Agency decision to narrow the competitive range without
considering protester's low proposed price was improper where proposal
received good ratings and was not determined to be technically
unacceptable.
2. Under solicitation for location and installation of permanent
forest inventory plots, protester's contention that evaluation of its
proposal was unreasonable is sustained where the record shows that the
agency's evaluation materials ignored evidence of required experience
provided by the protester in its best and final offer.
DECISION
Possehn Consulting protests the award of a contract to Steve Holmes
Forestry by the Forest Service, Department of Agriculture, pursuant to
request for proposals (RFP) No. R5-06-97-33, issued for the location
and installation of permanent forest inventory plots in the Lassen,
Plumas, and Tahoe National Forests, as part of the agency's Forest
Health Pilot Monitoring Project. Possehn argues that the agency's
award decision is based on an unreasonable evaluation of its proposal.
We sustain the protest.
BACKGROUND
This protest is Possehn's second challenge to the Forest Service's
procurement for permanent forest inventory plots in the above-named
national forests. The purpose of these plots is to permit long-term
monitoring of the health of these forests. A brief history of the
procurement is set forth below.
The RFP was issued for these services on August 22, 1997, seeking
fixed-priced proposals for approximately 300 forest health inventory
plots, aggregated into nine groups. The RFP anticipated award to the
offeror whose proposal offered the best value to the government, based
on the evaluation of price and technical factors, which were equally
important. As modified by amendment 01, section M-1 of the RFP
identified four technical criteria in descending order of importance:
(1) offeror's experience establishing permanent forest and/or
vegetation inventory plots; (2) past performance on similar contracts
during the previous 3 years; (3) experience of key management
personnel; and (4) qualifications of offered field personnel. The RFP
also anticipated the possibility that the agency might make multiple
awards. RFP sec. M-2.
After receiving 13 proposals; evaluating each proposal against the
four technical criteria using a rating scale of A, B, or C; and
comparing the proposed price of each offeror with the government's
cost estimate, the Forest Service rejected the two lowest-priced
proposals--including the proposal submitted by Possehn--and split the
award between Holmes and Shasta Land Management, the two offerors with
the next-lowest-priced proposals. The Forest Service explained that
it was rejecting the two lowest-priced proposals because it did not
believe the work could be performed properly at the offered prices.
Possehn protested the rejection of its proposal because of its low
price, and also challenged several of the technical evaluation
conclusions. Our Office sustained Possehn's protest after concluding
that any concern about the reasonableness of Possehn's low prices
could not be considered other than as a responsibility matter.
Possehn Consulting, B-278579, Jan. 9, 1998, 98-1 CPD para. 10 at 4. As a
result, we recommended that the Forest Service either refer the
question of Possehn's responsibility to the Small Business
Administration for a final determination under the certificate of
competency procedures, or reinstate the proposal to the competition
and perform a new cost/technical tradeoff among the offerors. Id. at
5.
Electing instead to reevaluate proposals, the agency, on January 11,
1998, excluded from the competitive range four proposals deemed
unacceptable. Written discussion questions were provided to the
remaining offerors, including Possehn and Holmes, and best and final
offers (BAFO) were received. The following table shows the results of
the evaluation of each of the nine proposals remaining in the
competitive range against the technical criteria, ranked from lowest
to highest price.
OFFEROR
Exper-
ience Past
Perform-
ance
Key
Personnel
Qualifica-
tions
Total
Price
Possehn B B B B $ 59,013
Holmes A A A A $ 65,043
Offeror A B B B B $ 66,300
Offeror B A A A A $66,951
All or
none
Offeror C A- A A A $70,515
Offeror D B B B B- $20,430
Items 1
and 3
Offeror E A A A A- $ 87,464
Offeror F A A A A- $ 93,110
Offeror G A A A A- $256,940
As shown above, Possehn's proposal was assigned a rating of "B" under
each of the four evaluation criteria. The evaluation narrative
explained that the proposal was being downgraded--presumably from an A
to a B--because the company lacked experience in establishing
permanent inventory plots. Prior to making a selection decision, the
Forest Service further narrowed the competitive range by excluding the
three offerors without experience establishing permanent forest
inventories. The excluded offerors were Possehn, and Offerors A and
D.
By memorandum dated April 15, the contracting officer concluded that
Holmes's high-rated proposal--which was also the proposal with the
lowest price of those remaining after the exclusion of those offerors
without prior experience preparing permanent forest inventory
plots--offered the best value to the government. Accordingly, Holmes
was selected for award of all of the services under the
solicitation.[1] This protest followed.
ANALYSIS
Possehn raises numerous contentions in support of three general
arguments--that the agency was biased against it, and as a result,
performed an unreasonable evaluation; that the agency failed to
recognize that only a professional forester registered in the state of
California would be allowed to perform these services; and that the
agency performed an unreasonable cost/technical tradeoff. During the
course of this protest, the protester was advised, by telephone
conference call with all parties, that several of its contentions were
untimely, factually incorrect, or raised issues not for consideration
by our Office.[2] However, for the reasons set forth below, our
review of Possehn's remaining contentions leads us to conclude that
the competitive range determination here was improper, and certain
elements of the evaluation were unreasonable.
The determination of whether a proposal is in the competitive range is
principally a matter within the reasonable exercise of discretion of
the procuring agency, and in considering an agency's evaluation of
proposals and subsequent competitive range determination we will not
evaluate the proposals anew in order to make our own determinations as
to their acceptability or relative merits. Dynalantic Corp.,
B-274944.2, Feb. 25, 1997, 97-1 CPD para. 101 at 4. This discretion is
not unfettered, however, as competitive range determinations and
proposal evaluations must be consistent with law and regulation and
have a reasonable basis in the record. S&M Property Management,
B-243051, June 28, 1991, 91-1 CPD para. 615 at 3; Howard Finley Corp.,
B-226984, June 30, 1987, 87-2 CPD para. 4 at 3.
Under Federal Acquisition Regulation (FAR) sec. 15.609(a) (June 1997), a
competitive range must be determined on the basis of cost or price and
other factors that were stated in the solicitation. Accordingly, the
Forest Service's narrowing of the competitive range on the basis of
experience installing permanent inventory plots without any
consideration of price--and in so doing, excluding Possehn's
lowest-priced proposal--was improper unless the excluded proposals
were found to be technically unacceptable. S&M Property Management,
supra, at 3-4. Here, the record contains no finding that the three
proposals eliminated during the narrowing of the competitive range
were unacceptable, and in fact, the record shows that all three
received overall ratings of "B" on a scale from "A" to "C." Thus, we
conclude that Possehn's proposal was improperly excluded from the
competitive range.[3]
The record also supports Possehn's claim that the evaluation of field
crew qualifications ignored additional information included in the
BAFO showing such experience for one of Possehn's two crew members.
During discussions, the Forest Service provided materials to Possehn
indicating that, with respect to the projects identified in response
to the experience criterion, the agency could not determine whether
prior projects involved permanent or non-permanent inventory plots.
Contracting Officer's Letter to Possehn, Jan. 12, 1998, at 2. In
response to this criticism, Possehn's BAFO provided greater detail
throughout its proposal on whether prior projects involved permanent
or non-permanent inventory plots. With respect to one of the two
field personnel identified in Possehn's proposal, the BAFO explained
that the employee had experience working for the Forest Service
establishing "permanent vegetation sampling plots." As shown above,
the RFP expressly sought experience with either permanent forest or
permanent vegetation inventory plots, but the evaluation under the
field crew qualifications criterion does not reflect this information
from the BAFO, and in fact, incorrectly states:
Field crew members do not have experience establishing permanent
plot inventory systems, therefore, Possehn was rated 'B' for
qualifications of field crew.
Source Selection Decision, April 15, 1998, at 4.
While our review of the record shows that the evaluation materials set
forth in the Source Selection Statement fail to recognize the
experience of one of Possehn's two crew members, the agency's
Postaward Debriefing and Denial of Agency Protest, and the Contracting
Officer's Statement, both acknowledge that one of Possehn's two crew
members had such experience.[4] On the other hand, we have no
contemporaneous evidence that the experience was recognized prior to
Possehn's pursuit of this protest. Since we accord greater weight to
contemporaneous evaluation and source selection materials than to
explanations prepared in response to protest contentions, we cannot
justify disregarding the written statement found in the Source
Selection Decision. Cygnus Corp., B-275181, Jan. 29, 1997, 97-1 CPD para.
63 at 8; DynCorp, B-245289, B-245289.2, Dec. 23, 1991, 91-2 CPD para. 575
at 7 n.13. Accordingly, we conclude that the evaluation unreasonably
overlooked the experience of one of Possehn's two field crew members.
Possehn's next challenge to the evaluation is that the agency
unreasonably downgraded the company for its lack of experience
establishing permanent forest inventory plots under all four
evaluation criteria, instead of only under the offeror's experience
criterion.[5]
We conclude that the agency's consideration of permanent inventory
plot experience under the evaluation criteria covering past
performance, key personnel experience, and field personnel
qualifications (which apparently led to Possehn's receiving a rating
of "B" for those criteria) is consistent with the RFP's evaluation
scheme. Given the guidance included in the solicitation under the
offeror's experience criterion that the agency would rate permanent
experience higher than non-permanent experience, we view as within the
reasonable discretion of the agency the decision to assign a slightly
lower rating to offerors whose past performance, key personnel, and
field personnel qualifications involve non-permanent rather than
permanent experience. In this regard, we note that the Forest Service
did not determine that offerors lacking permanent forest inventory
experience were unacceptable--hence our decision sustaining Possehn's
challenge to its exclusion from the competitive range--but instead
made distinctions about the relative merit of such experience in a
manner consistent with the clear import of the stated evaluation
scheme. Thus, we deny Possehn's protest of its evaluation in this
area.
Finally, Possehn contends that many of the agency's actions are the
likely result of bias against Possehn for bringing its earlier
successful protest. While Possehn correctly noted certain
irregularities in the record,[6] without clear evidence of bias, we
will not attribute prejudicial motives to agency contracting officials
on the basis of inference or supposition. Meridian Management Corp.,
Inc.; NAA Servs. Corp., B-254797, B-254797.2, Jan. 21, 1994, 94-1 CPD para.
167 at 6.
RECOMMENDATION
We recommend that the agency reevaluate the BAFO submitted by Possehn
to ensure that the evaluation accurately reflects the experience of
one of the company's two field crew members, and make an appropriate
judgment about the value of that experience. Following the
reevaluation, we recommend that the agency either properly narrow the
competitive range, giving appropriate consideration to the role of
price, or appropriately determine, through a cost/technical tradeoff,
which of the proposals offers the best value to the government. At
the end of the process, if the contracting officer determines that
Possehn's proposal offers the best value, we recommend that the agency
terminate the award to Holmes and award to Possehn.
We also recommend that the protester be reimbursed the reasonable
costs of filing and pursuing its protest, including attorneys fees, if
any. 4 C.F.R. sec. 21.8(d)(1). In accordance with 4 C.F.R. sec.
21.8(f)(1), Possehn's certified claim for such costs, detailing the
time expended and the costs incurred, must be submitted directly to
the agency within 60 days after receipt of this decision.
The protest is sustained.
Comptroller General
of the United States
1. In selecting Holmes for award, the contracting officer also decided
to terminate the partial award initially made to Shasta Land
Management, whose proposal was not included in the competitive range.
2. For example, Possehn's contention that there is little meaningful
difference between experience preparing permanent forest inventory
plots and non-permanent forest inventory plots is untimely with
respect to the first of the four technical evaluation criteria. The
RFP at amendment 01, section M-1, clearly states that experience
preparing permanent inventory plots will be ranked higher than
experience with non-permanent inventory plots. Under our Bid Protest
Regulations, this allegation of an impropriety in the solicitation had
to be protested to our Office prior to the time set for receipt of
initial proposals. 4 C.F.R. sec. 21.2(a)(1) (1998). Moreover, several
of Possehn's complaints that the agency overlooked information
provided in its BAFO are factually incorrect. The evaluation
criticisms Possehn referenced in its protest comments to support
certain of these arguments (for example, those found in Possehn's
Comments on the Agency Report, June 5, 1998, at 3) were taken from the
initial evaluation, not the BAFO evaluation. The criticisms were, in
fact, removed from the final evaluation materials. Similarly,
Possehn's contention that the agency ignored its experience in the
Sierra Nevada Mountains was shown to be based on a misunderstanding,
since the evaluation expressly credits Possehn's Sierra Nevada
experience. Finally, Possehn's complaint that the agency failed to
consider whether offerors were properly licensed by the state of
California raises an issue not reviewable by our bid protest forum.
Compliance with state or local requirements is generally a matter
between the contractor and the issuing authority, and will not be a
bar to contract award absent a specific requirement in the
solicitation. Mark Dunning Indus., Inc., B-258373,
Dec. 7, 1994, 94-2 CPD para. 226 at 5-6.
3. For the record, we note that the Forest Service argues that even if
Possehn's proposal were included in the competitive range, and a
cost/technical tradeoff were performed between the proposals submitted
by Possehn and Holmes, the agency would have selected the Holmes
proposal. Generally, we accord little weight to agency efforts to
defend, in the face of a bid protest, a prior source selection through
submission of new analyses, which the agency itself views as merely
hypothetical, because such reevaluations and redeterminations prepared
in the heat of the adversarial process may not represent the fair and
considered judgment of the agency. Boeing Sikorsky Aircraft Support,
B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD para. 91 at 15. In
addition, the hypothetical used by the agency is premised upon an
assumption that Possehn lacks experience establishing permanent forest
inventory plots. As shown below, we conclude that the Forest Service
should revisit this assumption given evidence in the record that one
of Possehn's crew members has such experience.
4. For example, the Postaward Debriefing and Denial of Agency Protest,
April 24, 1998, states at the second unnumbered page, "Of the field
personnel, Dave Young has one season of experience establishing
permanent vegetation sampling plots."
5. As noted above, Possehn also argues that there is no material
difference between preparing non-permanent plots and permanent plots.
However, given that the solicitation clearly advised that permanent
plot experience would be rated more highly than non-permanent plot
experience, this portion of its challenge had to be raised with our
Office prior to the due date for receipt of proposals, and is untimely
at this juncture. 4 C.F.R. sec. 21.2(a)(1).
6. For example, Possehn points out that when the agency elected to
reevaluate proposals after our earlier decision sustaining Possehn's
first protest, the reevaluation did not mention one of the weaknesses
noted for Holmes in the initial evaluation. Since no further
submissions had been provided that might have permitted the correction
of the weakness, Possehn argues that the omission of the negative
evaluation findings is evidence of bias. While our Office also
pointed out this irregularity to the agency during the course of a
conference call to discuss the record, we note that the Forest Service
did use a different evaluator than it used initially. In addition,
the weakness involved was relatively minor and, at best, would have
been reflected as a weakness under the past performance criterion, as
opposed to the more heavily-weighted criterion of experience. In
short, we do not find that this matter, on its own, is evidence of
agency bias.