BNUMBER: B-278689; B-278689.2; B-278689.3
DATE: March 2, 1998
TITLE: Jason Associates Corporation, B-278689; B-278689.2; B-
278689.3, March 2, 1998
**********************************************************************
Matter of:Jason Associates Corporation
File: B-278689; B-278689.2; B-278689.3
Date:March 2, 1998
Mark A. Rowland, Esq., and Lane L. McVey, Esq., McKenna & Cuneo, for
the protester.
John R. Jefferies, Esq., Fennemore Craig, for Gutierrez-Palmenberg,
Inc., an intervenor.
Jeffrey I. Kessler, Esq., and Maj. Harry W. Longbottom, Department of
the Army, for the agency.
Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest that source selection authority (SSA) acted improperly
when, in response to eventual awardee's agency-level protest of the
exclusion of its proposal from the competitive range, she reevaluated
a portion of the proposal and reinstated it in the competitive range
is denied; the SSA acted within her authority and her reevaluation was
reasonable and consistent with the solicitation's evaluation factors.
2. Protest that SSA improperly considered the proposals of the
protester and the awardee to be tied under the performance risk
evaluation factor when the performance risk assessment group found
distinctions is denied where the record shows that the SSA's
conclusions were reasonable and consistent with the solicitation's
evaluation scheme; agency's failure to check all references listed in
the proposal is unobjectionable.
3. Protest that no contemporaneous documentation exists to show that
the SSA followed the solicitation's weighted basis for award scheme in
making her award decision is denied where her post-protest
explanation, which is consistent with the contemporaneous
documentation, provides a detailed rationale for her decision which is
sufficient for our Office to conclude that her decision was both
consistent with the solicitation and reasonable.
DECISION
Jason Associates Corporation protests the award of a contract to
Gutierrez-Palmenberg, Inc. (GPI) under request for proposals (RFP) No.
DAAD01-97-R-0001, issued by the Department of the Army to obtain
environmental support services at the U.S. Army Yuma Proving Ground
(USAYPG) in Yuma, Arizona. Jason challenges various aspects of the
Army's evaluation of GPI's proposal and its source selection decision.
We deny the protests.
BACKGROUND
The USAYPG conducts developmental and desert environmental testing of
materiel, and must ensure that these testing activities and its
facility operations comply with federal, state, and Army
environmental/radiation statutes and regulations. To this end, the
USAYPG requires the services of an environmental support contractor to
provide scientific, engineering, technical, and regulatory compliance
assistance. Tasks will generally fall within the areas of analyses,
studies, remediation, evaluations of the effects of USAYPG activities,
and preparation of reports and other required documents. RFP sec. C.1.
Commerce Business Daily announcements advised potential contractors
that the Army intended to procure these services under a multi-phase
acquisition set aside for small businesses. Under Phase I of the
acquisition, offerors' "mini-proposals" were to be evaluated pursuant
to a color-coded rating scheme to determine the firms' technical
capabilities under various weighted factors.[1] Technically capable
firms were to be down-selected to participate in Phase II of the
acquisition.
The contracting officer, who served as the source selection authority
(SSA) for this procurement, conducted the Phase I evaluation. The
mini-proposals of Jason and GPI, the incumbent contractor providing
these services, were evaluated as follows:
Phase I Factors GPI Jason
Contractor Experience (5)GreenBlue
EPA Violations (5) Green Green
Key Personnel (4) Green Green
Quality Assurance Plan (4)BlueGreen
Training Program (3)Green Green
Subcontracting (2) Green Blue
The contracting officer's contemporaneous documentation shows that she
ranked GPI's Phase I proposal first and Jason's third overall. Both
firms were down-selected to participate in Phase II of the
acquisition.
The RFP, issued May 29, 1997, explained that Phase II proposals were
to be evaluated under three factors: technical merit, performance
risk analysis, and cost. RFP Attachment (Att.) 2, para. 2. Technical
merit, the most important factor, consisted of three equally important
subfactors: understanding of problems/objectives; specific contractor
capabilities and experience in cited subject areas; and technical
report/writing quality. Id. at para. 2.A. The technical merit factor and
its subfactors were to be color-rated as above. Id. The technical
merit factor was significantly more important than the performance
risk analysis factor, but performance risk would become more
significant as technical merit tended to equalize. The performance
risk analysis factor was slightly more important than cost. RFP Att.
2, para. 2.B.(4). The contracting officer was to make a competitive range
determination after the Phase II proposals were evaluated. Offerors
whose proposals were included in the competitive range were to be
down-selected to participate in Phase III of the acquisition, oral
presentations. RFP Att. 2, para. 3.a. and b.
A two-member evaluation board reviewed the nine Phase II proposals for
technical merit. The proposals of Jason and GPI were rated blue under
both the understanding and experience subfactors. Under the technical
writing subfactor, however, Jason's proposal was rated green and GPI's
proposal was rated red.
The prenegotiation objective memorandum discusses the Phase I
evaluation, under which the contracting officer had previously ranked
GPI's proposal first and Jason's third overall. The memorandum also
includes a detailed discussion of the results of the technical merit
and cost aspects of the Phase II evaluation.[2] Jason's Phase II
technical proposal was ranked first overall, with a blue/green rating,
and the proposals of three other offerors were ranked second and
essentially equal overall with all blue ratings. The proposals of GPI
and two other offerors were ranked third and essentially equal overall
with blue ratings under the understanding and experience subfactors
but red ratings under the technical writing subfactor. The remaining
proposals were rated lower still.
The contracting officer included only the top four proposals in the
competitive range. She excluded the remaining proposals, including
GPI's, because, among other things, the red ratings they received
under the technical writing subfactor were based upon finalized sample
writings that had been submitted in connection with other contracts.
As a result, these ratings could not improve with discussions. See
Prenegotiation Objective Memorandum at 6.
GPI filed an agency-level protest challenging the exclusion of its
proposal from the competitive range. Along with specific allegations
not at issue here, GPI complained that the exclusion of its proposal
based upon the quality of its sample writings was improper because
some of them had been delivered and approved by USAYPG under the prior
contract for these services. As discussed further below, the
contracting officer was troubled by this revelation and reevaluated
GPI's sample writings. She found them to be at least acceptable
(blue), and reinstated the proposal into the competitive range.
A separate evaluation board conducted the Phase III evaluation of oral
presentations and concluded that the proposals of GPI and Jason were
tied for first place and equally meritorious. As discussed further
below, the performance risk assessment group (PRAG) evaluated both
firms as presenting low performance risk but stated that Jason
presented the lowest risk and GPI the third-lowest risk. GPI's
evaluated cost over the 7-year life of this fixed-price contract with
time-and-materials task orders was $5.4 million, and Jason's was $6.6
million.
Award was to be made to the offeror whose responses to the three
phases of the acquisition represented the best buy to the government.
RFP Att. 2, para. 4. The RFP set forth specific guidance for making the
"best buy" determination:
Oral presentations are considered the most important, followed by
Phase II technical ratings and Phase I ratings. Cost and past
performance are considered least important with past performance
being slightly more important than cost. . . . Significant
differences in measured technical merit may or may not be deemed
affordable depending on the best interests of the Government.
Id.
In the post-negotiation memorandum, which served as the source
selection decision, the contracting officer explained the
circumstances surrounding her reevaluation of GPI's sample writings
and her decision to reinstate the firm's proposal into the competitive
range. The document does not discuss the Phase I and II technical
evaluation results, which had previously been addressed in the
prenegotiation objective memorandum, but does include a detailed
discussion of the Phase III evaluation results. Under the heading
"Final Evaluation," the contracting officer summarily compared the
Phase III technical rankings (GPI and Jason were "tied" for first
place); the performance risk assessment (both GPI and Jason were low
risk); and the offerors' evaluated costs. The contracting officer
concluded:
Since GPI and Jason are essentially tied in technical merit and
performance risk, the final determining factor for contract award
is total evaluated cost. GPI's evaluated cost is approximately
$1.3 [million] (24%) lower than Jason's over the anticipated life
of the contract. . . .
Based on the above, GPI is considered to represent the best buy
to the Government. GPI has been evaluated as one of the two
highest offerors in technical merit and is considered low risk
for contract performance. GPI's total evaluated price is
approximately 24% lower than the next low offeror, who is
considered essentially equal to GPI in technical merit and
performance risk.
Post-Negotiation Memorandum at 10-11.
The November 13 award to GPI was followed by Jason's initial protest
and two supplemental protests. Jason argues that (1) the SSA
improperly reevaluated GPI's Phase II proposal as to technical writing
and improperly reinstated it into the competitive range; (2) the SSA
erroneously considered both offerors to be tied under the performance
risk analysis factor; and (3) the SSA improperly failed to follow the
RFP's weighted basis for award scheme.[3] We deny the protests based
upon our review of the procurement record, the pleadings of all
parties, and the testimony elicited at a hearing in this matter.
DISCUSSION
Reevaluation of GPI's Phase II Proposal
Jason asserts that the contracting officer was not authorized to
reevaluate the technical writing aspect of GPI's Phase II proposal;
that she improperly failed to contemporaneously document her
reevaluation; and that her reevaluation was unreasonable because it
was conducted solely to dispose of GPI's agency-level protest.
It is well-settled that source selection officials in negotiated
procurements are not bound by the recommendations or evaluation
judgments of lower-level evaluators, but may make their own judgments,
subject to the tests of rationality and consistency with the stated
evaluation factors. Grey Advertising, Inc., 55 Comp. Gen. 1111,
1120-1121 (1976), 76-1 CPD para. 325 at 11-12; Environmental Chemical
Corp., B-275819, Apr. 1, 1997, 97-1 CPD para. 154 at 5. Here, the record
shows not only that the contracting officer, as the SSA for this
procurement, was within her rights to reevaluate GPI's proposal, but
that her reevaluation was reasonable.
GPI's agency-level protest was the contracting officer's first
indication that two of the three sample writings, which the
lower-level evaluators deemed so filled with errors and mistakes as to
be unacceptable, had been submitted and approved by the very same
contracting activity which now criticized them--USAYPG. Tr. at 83.
This revelation troubled the contracting officer to such a degree that
she decided to reevaluate the sample writings herself. Tr. at 20.
She asked a lower-level evaluator to highlight each area of the sample
writings that caused him to downgrade GPI's proposal. Her review of
the highlighted passages, as well as the evaluator's contemporaneous
margin notes, led her to conclude that his evaluation was "overkill"
and largely reflected a difference in writing styles; in her view, the
problems that did exist in the documents should not have resulted in
GPI's exclusion from the competitive range. Tr. at 21-22, 91-92. She
believed that the sample writings were at least
acceptable--blue--under the RFP's definition. Tr. at 26. In this
regard, proposals were to be rated blue if the sample writings
reflected an acceptable knowledge of proper writing skills and
techniques, as well as the subject matter. RFP Att. 2 at para. 2.A. The
contracting officer did not contemporaneously document her
reevaluation.
Jason does not directly challenge the reasonableness of the
contracting officer's conclusion that GPI's sample writings were
acceptable under the terms of the RFP, but, rather, complains that she
improperly failed to contemporaneously document her reevaluation.
Where there is inadequate supporting documentation for an award
decision we cannot conclude that the agency had a reasonable basis for
the decision. Hattal & Assocs., 70 Comp. Gen. 632, 637 (1991), 91-2
CPD para. 90 at 7. However, where post-protest explanations provide
sufficient detail by which the rationality of an evaluation decision
can be judged, it is possible to conclude that the agency had a
reasonable basis for the decision. Quality Elevator Co., Inc.,
B-276750,
July 23, 1997, 97-2 CPD para. 28 at 3-4. Post-protest explanations that
provide a
detailed rationale for contemporaneous conclusions, as is the case
here, simply fill
in previously unrecorded details, and will generally be considered in
our review of the rationality of selection decisions, so long as those
explanations are credible and consistent with the contemporaneous
record.[4] See Northwest Management, Inc.,
B-277503, Oct. 20, 1997, 97-2 CPD para. 108 at 4 n.4. Here, the
contracting officer's post-protest explanation of her reevaluation is
sufficient to show that it was reasonable. See Quality Elevator Co.,
Inc., supra. As a result, her reinstatement of the firm's proposal
into the competitive range is unobjectionable.
Jason also alleges that the reevaluation was unreasonable because it
was done "solely" to dispose of GPI's protest. Jason asserts that if
the contracting officer had genuine concerns about the quality of the
evaluation, she would have reevaluated the two proposals which were
rated equal to GPI's and also excluded from the competitive range.
Contracting officials in negotiated procurements have broad discretion
to take corrective action where the agency determines that such action
is necessary to ensure fair and impartial competition. Rockville
Mailing Serv., Inc., B-270161.2,
Apr. 10, 1996, 96-1 CPD para. 184 at 4. When the contracting officer was
presented with information in GPI's agency-level protest which
provided her a basis to question the evaluation of its sample
writings, she properly did so. As she stated during the hearing, she
had no basis to reevaluate the other proposals because their
elimination from the competitive range was based, as well, upon their
high evaluated costs. Tr. at 93. The evaluated costs of these two
proposals were $400,000 and $2.2 million higher, respectively, than
the competitive range offeror with the highest evaluated cost.
Performance Risk
Offerors were required to describe prior and current contracts
relevant to the tasks listed under the solicitation's statement of
work (SOW), and to identify contact persons for each contract. RFP sec.
L.O.D.(2). This information would be reviewed to assess the quality
of each offeror's past performance. RFP Att. 2, para. 2.B. According to
its report, the PRAG reviewed the past performance information
provided by each offeror to determine the relevance of each reference
to the solicitation's requirements, and sent out two types of
questionnaires, one concerning the offeror's performance with respect
to contract administration matters, and one concerning the offeror's
performance with respect to technical matters. PRAG Report, para. 3, 4.
With respect to Jason's proposal, the PRAG reviewed six contracts and
five sets of questionnaire responses. The PRAG rated Jason's proposal
above average under both the technical and administrative
questionnaires--and low performance risk overall--based upon the fact
that it and its subcontractor received almost all above average
ratings on the questionnaire responses. The PRAG report does not
discuss the nature of Jason's contracts or how their nature factored
into the low risk rating. Id. at para. 10. With respect to GPI's
proposal, the PRAG reviewed five contracts and three sets of
questionnaire responses. The PRAG rated GPI's proposal above average
under the technical questionnaire because a majority of its ratings
were above average, and average under the administrative questionnaire
because its ratings were evenly divided between above average and
average--GPI's proposal was rated low performance risk overall.
Again, the PRAG report does not discuss the nature of GPI's contracts
or how their nature factored into the low risk rating. Id. at para. 11.
The final paragraph of the PRAG report states that Jason had the
lowest performance risk and GPI the third-lowest performance risk.
Id. at para. 13. During the hearing, the contracting officer was asked to
explain the apparent inconsistency between this statement and her
statement in the source selection decision that the two offerors were
"tied" with respect to performance risk.
The contracting officer explained that she expected the PRAG report to
include a discussion of the relevance of the contracts that were rated
to the work the agency planned to have the contractor perform, but the
report merely focused on the number of average and above average
ratings each offeror received. Since simply counting the number of
average and above average ratings would not give a true picture of
each offeror's past performance, she read the underlying
questionnaires herself. Tr. at 28-29, 31, 51-53.
The only set of questionnaires returned for Jason concerned a contract
for public affairs support, which did not have a lot of relevance to
the work required here. Tr. at 29-30. However, three sets of
questionnaires were returned for one of Jason's subcontractors
concerning contracts for work directly relevant to certain portions of
the SOW. Id. The remaining set of questionnaires, from the
Department of Energy (DOE), was not for Jason or any of its
subcontractors, but for a different firm altogether. While the PRAG
had apparently considered these questionnaires, the contracting
officer found no mention of the firm in Jason's proposal, so she did
not consider them. Tr. at 42-43. With respect to GPI, three sets of
questionnaires were returned, each of which concerned a contract
relevant to the environmental support services required here. In
particular, the contracting officer considered the most relevant of
these contracts to be the prior contract for these same services at
USAYPG. Tr. at 43, 105.
Based upon her determination of the relevance of the questionnaires
and the underlying contracts they described, as well as the comments
made on the questionnaires, the contracting officer stated that she
saw nothing to show that one contractor posed lower risk than the
other and she considered them to be equally low risk contractors. Tr.
at 30-31, 52-53. The source selection decision, which stated that the
two offerors were "tied" in this regard, merely reflected that view.
In its post-hearing supplemental protest, Jason argues that the
contracting officer improperly failed to review the past performance
information in its proposal when she made her determination as to the
relevance of the firm's prior contracts. Jason asserts that, in so
doing, she overlooked numerous relevant contracts performed by the
firm. Jason also contends that the contracting officer improperly
failed to contact DOE to obtain the correct set of questionnaires for
Jason; had she done so, Jason asserts, it might have received a lower
performance risk rating than GPI.
A source selection official may reach her own conclusions about how
much weight to accord PRAG information, provided her conclusions are
reasonable and do not improperly disregard the RFP's evaluation
scheme. Litton Sys., Inc., Amecom Div., B-275807.2, Apr. 16, 1997,
97-1 CPD para. 170 at 12. The record here provides us no basis to
question the contracting officer's conclusions.
Each offeror was on notice that the subject of the performance risk
evaluation was the quality of its past performance, and that this was
to be ascertained by asking its customers for information regarding
the firm's performance on relevant contracts. As indicated above, the
PRAG reviewed the past performance proposals for relevance in order to
determine to which contact persons questionnaires should be sent, and
decided to review six contracts listed in Jason's proposal and five
contracts listed in GPI's proposal. The contracting officer duly
reviewed the questionnaires returned to the agency, and we have no
basis to disagree with her conclusions. A review of Jason's past
performance proposal, which set forth the relevance of its prior
contracts to the work required here, would have provided her with
little information concerning the objective quality of the firm's
performance on these contracts. There is no legal requirement that
all references listed in a proposal be checked. HLC Indus., Inc.,
B-274374, Dec. 6, 1996, 96-2 CPD para. 214 at 7. For this same reason,
the contracting officer was under no obligation to contact DOE to
obtain the correct questionnaire responses for Jason's contract.
Moreover, as our review of the record shows that the DOE contract at
issue was relevant to only some SOW requirements, we have no basis to
conclude that its consideration would have resulted in a meaningfully
better performance risk rating for Jason. See Northport Handling,
Inc., B-274615, Dec. 18, 1996, 97-1 CPD para. 3 at 3-4.
Award Decision
Jason argues that no contemporaneous documentation exists to show that
the contracting officer followed the RFP's weighted basis for award
scheme in making her award decision.
As explained above, award was to be made to the offeror whose
responses to the three phases of the acquisition were found to
represent the best buy to the government. Oral presentations (Phase
III) were considered most important, followed by the Phase II
technical ratings, the Phase I ratings, and past performance, which
was slightly more important than cost. RFP Att. 2, para. 4; Tr. at 14-15.
Significant differences in technical merit might or might not be
deemed affordable depending upon the best interests of the government.
RFP Att. 2, para. 4.
The source selection decision's failure to discuss the results of
Phases I and II of the acquisition suggested that the SSA had not
considered these results in making her award decision. Since the
contracting officer's statement filed in response to the protest
indicated that she did consider these results, she was asked to
address this matter at the hearing.
The contracting officer explained that when she finished evaluating
the Phase I proposals she ranked GPI's proposal first and Jason's
third, a fact that she contemporaneously documented. When she
received the results of the Phase II technical evaluation, she ranked
Jason's proposal first and excluded GPI's proposal from the
competitive range, a fact that she also contemporaneously documented.
After her reevaluation, she considered Jason's proposal to be ranked
first and GPI's to be tied for second, a ranking consistent with the
contemporaneous documentation. Tr. at 35. She reviewed the strengths
that caused GPI's proposal to be rated higher under Phase I--its
experience in the context of key personnel and subcontractors--and the
strengths that caused Jason's proposal to be rated higher under Phase
II--its technical writing skills. Id. She did not consider that
either of these strengths made one offeror superior to the other;
while GPI's reports might not be as well-written as Jason's, GPI's
experience would "pull that through." Id. As a result, the
contracting officer stated, in her mind Jason and GPI were tied
technically prior to her receipt of the Phase III results. Id.
However, her decision-making from the point of the reevaluation to the
point of receiving the Phase III evaluations was not documented. The
contracting officer explains that she normally would have addressed
these matters in the prenegotiation objective memorandum but, at the
time that document was written, GPI's proposal had been excluded from
the competitive range and the closeness between the two proposals was
not an issue. After the reevaluation, she "completely forgot" to
readdress the matter in the post-negotiation memorandum. Tr. at 63.
The fact that she began her discussion of the final evaluation with
the Phase III results reflected her belief that the two proposals were
tied up to that point. Tr. at 36.
The contracting officer's post-protest explanation of her
decision-making is not a new, post hoc rationale for her source
selection, but simply fills in previously unrecorded details that are
entirely consistent with the contemporaneous evaluation documentation.
As a result, we find her explanation sufficient to show that her
source selection decision was both reasonable and consistent with the
solicitation's weighted basis for award scheme. See Northwest
Management, Inc., supra. In this regard, Jason maintains that the
contracting officer's selection of GPI reflects her failure to follow
the weighted basis for award scheme for two reasons. First, Jason's
Phase I proposal was rated green and GPI's blue under the quality
assurance factor. Second, Jason's proposal was rated green under one
Phase II factor and GPI's proposal was rated blue under all three
factors, and the Phase II technical results were more important than
the Phase I results.
Color-coded ratings, like point scores, are used as a guideline for
intelligent decision-making by source selection officials; award
should not and need not be based solely on these ratings or scores.
See AlliedSignal, Inc., B-272290, B-272290.2, Sept. 13, 1996, 96-2 CPD para.
121 at 7. Rather, a selection should reflect the procuring agency's
considered judgment of whether significant technical differences exist
in the proposals that identify a particular proposal as technically
superior regardless of close scores or ratings among proposals. Id.
The contracting officer here specifically found that GPI had excellent
experience under Phase I, both in the context of key personnel and
subcontracts, and that this strength gave GPI the edge over Jason's
strength in the area of quality assurance. In this regard, the
combined weight of the key personnel and subcontracts factors is
nearly twice that of the quality assurance factor. Tr. at 73-74.
Moreover, the contracting officer states that she considered the
experience difference that GPI had under Phase I to be enough to
offset the difference between the two proposals under Phases I and II.
Tr. at 79. Jason's apparent disagreement with her conclusion does not
render it unreasonable. See Global Assocs., Ltd., B-256277, June 6,
1994, 94-1 CPD para. 347 at 4.
The protests are denied.
Comptroller General
of the United States
1. Proposals were to be rated "green" if they significantly exceeded
the minimum requirements under a given factor; "blue" if they were
acceptable; and "red" if they failed to meet the minimum requirements.
The weight of each Phase I evaluation factor is set forth in
parentheses in the table below.
2. The performance risk assessment was still in process, but a
preliminary review showed that the performance risk for all offerors
whose proposals were selected for inclusion in the competitive range
would be low to negligible.
3. We need not consider Jason's allegation that the contracting
officer improperly relied upon a USAYPG environmental attorney's
parallel reevaluation of GPI's sample writings. Testimony provided
during a hearing that our Office conducted in connection with these
protests shows that the contracting officer did not rely upon that
attorney's reevaluation, but used it merely to confirm her own
reevaluation, which is at issue here. Hearing Transcript (Tr.) at 24,
117-118, 134.
4. In contrast, we give less weight to new, post hoc rationales and
conclusions reached for the first time in response to a protest. See
Boeing Sikorsky Aircraft Support, B-277263.2, B-277263.3, Sept. 29,
1997, 97-2 CPD para. 91 at 15.