BNUMBER: B-278695; B-278695.2; B-278695.3; B-278695.4; B-278695.5; B-278695.6
DATE: March 4, 1998
TITLE: Modern Technologies Corp.; Innovative Technologies Corp.;, B-
278695; B-278695.2; B-278695.3; B-278695.4; B-278695.5; B-278695.6,
March 4, 1998
**********************************************************************
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:Modern Technologies Corp.; Innovative Technologies Corp.;
Information Systems & Networks Corp.; and Camber Corp.
File: B-278695; B-278695.2; B-278695.3; B-278695.4; B-278695.5;
B-278695.6
Date:March 4, 1998
Michael A. Gordon, Esq., and Fran Baskin, Esq., Holmes, Schwartz &
Gordon, for Modern Technologies Corp.; Douglas N. Harty, Esq., for
Innovative Technologies Corp.; Norman H. Singer, Esq., Rudnick, Wolfe,
Epstien & Zeidman, for Information Systems & Networks Corp.; and Alan
M. Grayson, Esq., and Laura J. Mann, Esq., Alan M. Grayson and
Associates, for Camber Corp., the protesters.
John S. Pachter, Esq., Jonathan D. Shaffer, Esq., Eun K. Chung, Esq.,
and Christina M. Pirrello, Esq., Smith, Pachter, McWhorter &
D'Ambrosio, for SEMCOR, Inc.; Richard L. Moorhouse, Esq., Holland &
Knight, for RJO Enterprises, Inc.; and John E. Jensen, Esq., and Devon
E. Hewitt, Esq., Shaw Pittman Potts & Trowbridge, for Innovative
Logistics Techniques, Inc., the intervenors.
Marian E. Sullivan, Esq., Terrance J. Moran, Esq., Scott W. Singer,
Esq., William D. Cavanaugh, Esq., Janice C. Beckett, Esq., Alvin
Chase, Esq., Deborah Muldoon, Esq., and Jennifer L. Grimm, Esq.,
Department of the Air Force, 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
l. Protesters' contentions that agency unreasonably evaluated
awardees' and protesters' proposals are denied where the record shows
the agency evaluation was reasonable and in accordance with stated
evaluation criteria.
2. Protester's contention that its strong performance as the current
incumbent should be reflected in the evaluation of its proposal, and
that as the incumbent it should receive extra credit in its past
performance evaluation is denied where the record shows that the
agency appropriately evaluated the proposal based on the merits of the
proposal itself, and reasonably gave the highest possible past
performance rating--but not extra credit--to the protester and to
other offerors who had strong past performance references, even though
the other offerors had not served as the incumbent for these services.
3. Protester's argument that the agency is required to perform a cost
analysis is denied where the agency is awarding a time-and-materials
contract and reasonably concludes that the fixed nature of the labor
rates indicates the presence of adequate price competition.
4. Agency redetermination of its initial source selection decision
in response to an offeror's questions raised after that offeror's
debriefing, but prior to the filing of its protest, is entitled to
review along with the other contemporaneous evaluation and selection
documents. Protester's contention that such a redetermination should
be given little weight by our Office and treated as a redetermination
prepared in the heat of the adversarial protest is denied.
5. Protest alleging violation of internal agency policy is not for
consideration by General Accounting Office as compliance with such
policies is a matter for review by the agency. Our bid protest
function focuses instead on whether the agency adhered to law and
regulation by evaluating proposals in accordance with the evaluation
scheme announced in the solicitation.
DECISION
Modern Technologies Corp. (MTC), Innovative Technologies Corp. (ITC),
Information Systems & Networks Corp. (ISN), and Camber Corp. protest
their failure to receive one of the five awards made by the Department
of the Air Force pursuant to request for proposals (RFP) No.
F33657-97-R-0014, issued to procure omnibus support services for the
Aeronautical Systems Center at Wright-Patterson Air Force Base, Ohio.
Instead, the Air Force made award to SEMCOR, Inc.; Dynamics Research
Corp. (DRC); RJO Enterprises; H.J. Ford Associates, Inc.; and
Innovative Logistics Techniques, Inc. (INNOLOG). Each of the four
protesters claims that the agency's evaluation of proposals was
flawed, and that its proposal should have been selected over the
proposals of other offerors.
We deny the protests.
BACKGROUND
On July 8, 1997, the Air Force issued the RFP here to procure various
categories of support services, including support for
configuration/data management, engineering, acquisition security,
acquisition management, administration, management of government
furnished property, testing and evaluation, manufacturing, and
litigation.[1] The RFP anticipated award of up to five indefinite
delivery, indefinite quantity contracts with both time-and-materials
(T&M) and cost reimbursable contract line item numbers (CLIN). The
competition for these awards was limited to small businesses, and up
to two awards were reserved for small disadvantaged businesses
participating in the Small Business Administration's 8(a) program.
Awards under this RFP were for a period of 3 years, with a total
combined value of all awards estimated at $250 million. The RFP also
advised that each contract would guarantee a minimum of $25,000 in
orders.
The RFP advised that awards would be made without discussions, if
possible, to the offerors whose proposals presented the best value to
the government. The RFP established that proposals would be evaluated
in the following areas, in descending order of importance: management
(oral proposal), technical (sample task), and cost. RFP sec. M.B.2.1.
Within these areas, the RFP identified the following evaluation
factors:
Management (Oral Proposal)
Factor M-1, Management Approach (includes key personnel)
Factor M-2, Subcontract Management
Factor M-3, Processes and Resources
Technical (Sample Task)
Factor T-1, Resources
Factor T-2, Approach
Cost
Factor C-1, Composite Rate (composite weighted hourly labor
rate)
Factor C-2, Sample Task Total Cost
The evaluation factors within the management and technical areas were
weighted equally with the other factors within their respective area;
the factors within the cost area are listed in descending order of
importance. RFP sec. M.B.3.1-3.3.
The RFP explained that each proposal would be assigned a
color/adjectival rating under each of the evaluation factors. These
ratings were blue, exceptional; green, acceptable; yellow, marginal;
and red, unacceptable. In addition, the RFP anticipated an assessment
of both proposal and performance risk as either high, moderate, or
low. Proposal risk was to be assessed for each evaluation factor, and
was to consider the risk associated with an offeror's proposed
approach to accomplish the RFP's requirements. Performance risk was
to be assessed only at the area level--i.e., management, technical,
and cost--and was to consider the risk associated with the offeror's
relevant present and past performance. RFP sec. M.B.2.2.
By the August 19 initial closing date, the Air Force received 16
proposals--9 from small businesses and 7 from small disadvantaged
businesses. All of the proposals were evaluated by a source selection
evaluation team (SSET), which prepared a Proposal Analysis Report and
a briefing for the source selection authority (SSA). The results of
the evaluation are set forth below in approximate order of evaluated
merit (offerors which are small disadvantaged businesses are marked
with an asterisk; offerors which eventually received award are shown
in bold; offerors which are protesters here are shown in italics; and
offerors which did not receive award and have not protested are
identified only by letter, such as "Offeror A"):
M-1
RATING
Color/
Risk M-2
RATING
Color/
Risk M-3
RATING
Color/
Risk T-1
RATING
Color/
Risk T-2
RATING
Color/
Risk PROPOSED
COST
Composite
Rate
(hourly)
H.J. Ford* green
low green
low green
low yellow
low green
low $32.17 hr.
SEMCOR green
low green
low green
low yellow
moderate green
low $31.58 hr.
MTC green
low green
low green
low yellow
moderate yellow
low $33.33 hr.
RJO green
low green
low green
low yellow
moderate yellow
moderate $32.06 hr.
Offeror A* green
low green
low green
low yellow
moderate yellow
moderate $37.64 hr.
INNO-
LOG* green
low green
low green
moderate yellow
moderate yellow
low $32.38 hr.
DRC green
low green
moderate green
low yellow
moderate yellow
moderate $29.84 hr.
Offeror B green
moderate green
low green
low yellow
moderate yellow
moderate $32.30 hr.
Camber* green
moderate green
moderate green
low yellow
moderate green
low $32.68 hr.
ITC* green
moderate green
moderate green
low yellow
moderate yellow
moderate $40.13 hr.
Offeror C* green
low green
low green
moderate yellow
high yellow
moderate $33.90 hr.
Offeror D green
low green
low green
low yellow
high yellow
high $31.14 hr.
Offeror E green
low green
low green
low red
high green
moderate $34.19 hr.
Offeror F green
low green
moderate green
low yellow
moderate red
high $36.88 hr.
ISN green
low green
low green
moderate red
high yellow
moderate $37.38
hr.Offeror G*red
high red
high red
high red
high red
high $76.76 hr.
In addition to the assessments above, all of the offerors--with the
exception of Offerors F and G--received low performance risk ratings,
as judged from past performance, under all three of the evaluation
areas--management, technical, and cost. Since Offerors F and G were
excluded from consideration for other reasons, performance risk, as a
practical matter, was not used by the agency to discriminate between
proposals.
In making his selection decisions, the SSA first decided to exclude
from consideration for award any offeror with a red rating, or with
high proposal risk. As can be seen on the table above, this decision
removed ISN and Offerors C through G from further consideration.
Since the RFP allowed, but did not require, up to two awards to small
disadvantaged businesses, the SSA next concluded that the agency could
appropriately make two such awards.
The SSA first selected H.J. Ford for one of the two awards earmarked
for small disadvantaged businesses. As shown above, Ford's proposal
received the highest merit ratings in the competition, and offered the
lowest composite rate of all 8(a) competitors, and the fourth lowest
rate overall. INNOLOG--the offeror with the second lowest composite
rate for 8(a) offerors, and the fifth lowest overall--was selected
after a cost/technical tradeoff wherein the SSA concluded that the
slightly higher merit ratings for Offeror A's proposal were not worth
its significantly higher composite hourly rates. SSA Decision on 8(a)
Awards, Oct. 29, 1997.[2]
For the remaining three awards, the SSA performed a detailed
comparison of the evaluation results for all the remaining
offerors--i.e., those not excluded from further consideration because
of red ratings or high risk, and those not already selected. After
reviewing the relative strengths and weaknesses of each offeror, the
SSA first selected SEMCOR, the remaining offeror with the
highest-rated proposal (after the selection of H.J. Ford) and the
second-lowest composite rate. The SSA then selected RJO and DRC over
MTC after making a cost/technical tradeoff which concluded that MTC's
slightly higher-rated, but higher composite rate proposal was not
worth the additional cost. In addition, selection of DRC required a
second cost/technical tradeoff between its proposal and the
higher-rated, but significantly higher composite rate proposal
submitted by Offeror A. SSA Decision on Small Business Awards, Oct.
29, 1997.
Accordingly, by notice dated November 7, the agency advised all
unsuccessful offerors of its intent to make awards to H.J. Ford and
INNOLOG, as 8(a) offerors, and SEMCOR, RJO, and DRC, as small
businesses. These protests followed.
MTC'S PROTESTS
MTC challenges nearly every facet of the evaluation process that led
to the selection of SEMCOR, RJO, and DRC for awards.[3] MTC argues
that its ratings under the management and technical areas, in every
instance, should have been higher, while the awardees' corresponding
ratings should have been lower. In addition, it argues that its
performance risk rating should have been significantly better than the
risk rating given the other offerors; that the cost review was
significantly flawed; that the SSA's selection decision was
misinformed; and that the agency misled it (and other offerors) about
the level of risk that would be assessed for reciprocal teaming
arrangements.
In considering a protest challenging an agency's evaluation of
proposals, we will examine the record to determine whether the
agency's judgment was reasonable and consistent with stated evaluation
criteria and applicable statutes and regulations. ESCO, Inc., 66
Comp. Gen. 404, 410 (1987), 87-1 CPD para. 450 at 7. As part of our
consideration of each of MTC's challenges, we have reviewed the
pleadings, the evaluation materials, and the proposals, and conclude
that the evaluation here was reasonable. While we will not discuss in
detail each of the challenges raised by MTC, we will discuss below
several of the recurring themes and major challenges raised by MTC in
its initial and two supplemental protests.
A prevailing theme in MTC's protests is that the agency did not give
MTC adequate credit for its successful incumbency under the
predecessor contract. In essence, MTC argues that its incumbency--or
the lack of incumbency of other offerors--should have affected every
facet of the evaluation. For example, MTC argues that: (1) its
rating under the management approach subfactor (M-1) should have been
blue, not green, because MTC's current successful performance shows
its management skill; (2) its ratings under the subcontract management
subfactor (M-2) and processes and resources subfactor (M-3) should
have been blue, not green, because MTC did not need as many
subcontractors, given its 11 years of experience performing this
contract; (3) its ratings under the technical (sample task) factors
should have been green, not yellow, to reflect the fact that MTC is
currently performing work similar to the proposal's sample task; (4)
its rating of performance risk should have exceeded any other
offeror's rating because it should receive extra credit for its
incumbent experience; (5) the management ratings given RJO and others
were too high because the agency leniently gave credit to those
offerors for proposed personnel not yet hired, while MTC (due to its
status as an incumbent), already has those personnel on board; and (6)
the management ratings given RJO and others should have included
greater risk because those offerors proposed greater reliance on
subcontractors, while MTC already employs most of the personnel needed
to perform these services.
In our view, MTC asks too much of its status as an incumbent
contractor. Under the evaluation scheme here, an offeror's past
performance was evaluated as performance risk. This assessment was
different from the consideration of proposal risk, which considered
the risk associated with an offeror's proposed approach. RFP sec.
M.B.2.2(1)-(2). In its protest, MTC seeks credit for its past
performance in both assessments--proposal risk and performance risk.
In addition, MTC seeks extra credit in the assessment of performance
risk based on the fact that it is the only offeror in this competition
that has provided all of the services in this omnibus contract.
With respect to the assessments of proposal risk made for each
evaluation factor, the appropriate point of departure for this
assessment was the proposal, not the agency's experience with MTC, no
matter how good it may have been. Chek F. Tan & Co., B-277163, Sept.
8, 1997, 97-2 CPD para. 66 at 5. In each of these instances, the
evaluators made judgments based on MTC's proposal--or on the proposals
of the other offerors--and assigned a risk to the approach.
Similarly, in each of the assessments of proposal merit, the agency
appears to have properly weighed the merit of the proposed approach,
rather than considering MTC's experience--or another offeror's lack of
experience--in evaluating the factor. Id. Nothing in MTC's
contentions that all of these assessments should have been keyed to
its past experience leads us to conclude that the evaluation was
unreasonable.
With respect to the assessment of performance risk, the record here
shows that MTC's past performance of this contract was considered
relevant, and resulted in a low performance risk rating--the best
rating available--but MTC did not receive extra credit for being the
incumbent for these services. In our view, there was nothing
unreasonable about the agency's conclusion that other offerors had
relevant past experience, even if the experience was not in performing
this very contract for the Air Force. Nor is there a requirement that
an incumbent be given extra credit for its status as an incumbent.
See Cubic Applications, Inc., B-274768 et al., Jan. 2, 1997, 97-1 CPD para.
98 at 6 (denying protester's contention that the agency could not
justify giving protester and the awardee equally favorable past
performance ratings given the protester's status as the successful
incumbent). On the contrary, our review shows that the Air Force's
evaluation of past performance was reasonable.
A second major theme in MTC's protests--and an issue also raised by
Camber and ITC--is that the agency performed a flawed review of
proposed costs. According to MTC, the agency was required to perform
a detailed cost analysis of each offeror's proposed costs because the
RFP here anticipated award of a cost reimbursement contract, and
because offerors were required to submit cost and pricing data with
their proposals. MTC claims the agency did not perform a detailed
cost evaluation and, as a result, failed to properly assess cost risk
for the awardees.
As a preliminary matter, MTC's contention that a detailed cost
analysis was required here is based on a flawed understanding of the
anticipated contract type, and an incorrect reading of the
requirements of the RFP. First, the contracts to be awarded here are
primarily T&M contracts, not cost reimbursement contracts. RFP sec. B,
Summary. T&M contracts are fixed in price to the extent that offerors
propose fully burdened (including profit) hourly labor rates for each
major labor category for each of the 3 years of performance, RFP sec. J,
Attachment 3 at 1, but reimbursable to the extent that varying numbers
of hours will be required to perform each delivery order.[4]
Accordingly, there is no per se requirement for a cost analysis when
an agency uses a T&M contract. Research Management Corp., 69 Comp.
Gen. 368, 372 (1990), 90-1 CPD para. 352 at 5-6. Second, MTC's contention
that cost and pricing data was required overlooks the RFP's express
instruction that "[i]t is anticipated that pricing of this action will
be based on adequate price competition: therefore, offerors are not
required to submit cost or pricing data."[5] RFP sec. L.E (setting forth
the text of Air Force Material Command Federal Acquisition Regulation
(FAR) Supplement clause 5352.215-9014).
Moreover, as we explained in Research Management Corp., supra, 69
Comp. Gen. at 371, 90-1 CPD para. 352 at 5, (and later in Hughes Missile
Sys. Co., B-257627.2, Dec. 21, 1994, 94-2 CPD para. 256 at 14-15) the
requirement to perform a cost analysis is derived from the Truth in
Negotiations Act, 10 U.S.C. sec. 2306a (1994). The Act requires
submission of cost data for all negotiated contracts in excess of
$500,000 except in certain circumstances. When such data is required
under the Act, a contracting officer must perform a cost analysis.
FAR sec. 15.805-1(b) (June 1997); Research Management Corp., supra;
Hughes Missile Sys. Co., supra. However, the Act (and the FAR
provisions implementing the Act) specifically exempt contracts awarded
with "adequate price competition" from the data submission
requirement. See 10 U.S.C. sec. 2306a(b)(1)(A); FAR sec. 15.804-1(a)(1)(i)
(June 1997). Since multiple offerors proposed fixed labor rates in
response to the RFP, this procurement falls squarely within the
definition of a procurement for which an agency has received adequate
price competition, and there was no requirement for the kind of
analysis MTC claims. FAR sec. 15.804-1(b)(1) (June 1997); Hughes Missile
Sys. Co., supra.
Although we conclude there is no requirement for a full-blown cost
analysis here, contracting agencies should conduct a review of the
proposals adequate to ensure that the proposed prices are reasonable
and that the government will obtain the lowest overall cost. Research
Management Corp., supra, 69 Comp. Gen. at 372, 90-1 CPD para. 352 at 5-6.
Our review of the evaluations, and of the challenges raised by MTC,
leads us to conclude that the analysis and review performed by the
agency was, in fact, adequate to protect the government's interests,
and reasonably applied. As an example, we discuss below MTC's claim
that the agency did not properly evaluate RJO's proposed intent to
absorb some of the costs associated with performing this contract.
Specifically, RJO proposed [deleted].
The record shows that RJO's proposal fully disclosed its intended
approach, and offered a detailed rationale in support of the approach.
RJO Proposal, Vol. IV at 2, 10. The Air Force explains that it
reviewed RJO's rationale for proposing reduced costs and found it
convincing. In addition, the agency's price analysis shows that the
hourly composite rates are well within the range of rates proposed by
the other offerors. In short, we see nothing unreasonable about the
decision to accept RJO's rates, or the decision not to assess
additional risk against the proposal because of its cost containment
measures.[6] See Systems Eng'g & Management Co., B-275786, Mar. 26,
1997, 97-1 CPD para. 133 at 8 (protest alleging agency should have
assessed greater risk against the awardee--RJO in this case as
well--for its [deleted] was denied where the agency reasonably
accepted the rationale in the proposal supporting the decision to
propose [deleted].
One final issue raised by MTC--and also by Camber and ITC--is that the
agency improperly evaluated a reciprocal teaming arrangement proposed
by H.J. Ford and SEMCOR.
As explained above, information regarding this procurement, including
the RFP, was issued electronically using the agency's Pre-Award
Information Exchange System site on the Internet. After initially
posting a notice warning potential offerors to avoid reciprocal and/or
multiple teaming arrangements in which more than one team member was
also an offeror, the agency posted an April 15 notice designed to
clarify the earlier notice. The April 15 notice advised that there
would be no restriction on teaming, but that teaming would be
evaluated with an eye towards ensuring that the proposed effort is
supported by sufficient resources. The notice also included the
following example of how such arrangements would be evaluated:
A proposal based on an Exclusive Teaming Arrangement in which the
Prime and Sub-Contractors are exclusive to one another and can
clearly show that they have all the resources needed, both by the
total number of employees and by functional type of employees, is
at the LOW end of the risk continuum. On the HIGH end of the
risk continuum are proposals with Non-Exclusive Teaming
Arrangements that share a subcontractor who clearly only has
resources, either in total number of people or functional type of
people, to support one teaming arrangement; but is teaming with
five Primes [both 8(a) and Small Business Primes]. All proposals
with this type of subcontract arrangement would be rated high
risk.
In addition, the RFP at section M.B.2.2(1) advised that the assessment
of proposal risk would include a judgment about "the offeror's ability
to support the proposed effort with the resources proposed to meet the
effort, to include multiple teaming arrangements."
When the agency reviewed the initial proposals, it became clear that
H.J. Ford and SEMCOR had proposed each other as subcontractors, and
that both relied on the same two other subcontractors. The Air Force
explains that it reviewed the number of employees available to both
offerors, both in total and in functional type, and concluded that
both H.J. Ford and SEMCOR had the necessary resources to perform the
contracts. As a result, both were given a rating of low proposal risk
under each of the management evaluation factors. MTC, Camber, and ITC
argue that this rating was unreasonable and inconsistent with the
prior instructions given by the agency. We disagree.
First, despite arguments to the contrary by MTC, the April 15 notice
expressly advised that there would be no restriction on teaming
arrangements. While we agree with the protesters that the teaming
arrangement of these two awardees raises questions about their ability
to perform if both are selected for award, the record shows that the
agency considered the independent capabilities of both H.J. Ford and
SEMCOR and concluded that both possessed substantial capacity to meet
the government's requirements. In fact, a close review of the April
15 notice shows that the agency reviewed precisely the attributes it
said it would review if faced with this kind of proposal.
Specifically, the Air Force looked at the number and type of employees
available to the offeror, as well as other available information,
before concluding that the proposals presented low proposal risk. In
short, this is a matter the agency clearly considered, and our review
of the record, and of the protesters' contentions, does not lead us to
conclude that the agency's assessment was unreasonable or inconsistent
with the RFP.
CAMBER'S PROTEST
Camber's protest challenges the evaluation in three general areas.
First, Camber argues, with MTC and ITC, that the agency misevaluated
the teaming arrangements of H.J. Ford and SEMCOR, after warning
potential offerors that such arrangements would be assessed as high
risk. Second, Camber argues that the SSA overlooked its status as an
8(a) contractor, and thus deprived it of award. Third, Camber mounts
various challenges to the agency's selection of color ratings and/or
assessments of proposal risk for its own proposal, and for each of the
awardees' proposals. We will not address here all of Camber's
arguments, but will address the issue of Camber's status as an 8(a)
contractor, and two representative samples of Camber's challenges to
the specific evaluation judgments. (Camber's challenge to the
evaluation of H.J. Ford's and SEMCOR's teaming arrangement has already
been addressed in our discussion of MTC's allegations.)
With respect to Camber's status as an 8(a) contractor, there is no
disagreement among the parties that Camber's status was reflected in
its proposal, yet--for reasons not relevant here--was overlooked when
the SSA selected 8(a) awardees. As explained above, when the SSA
began his selection process, he first eliminated from further
consideration any offeror with a red rating, or with high proposal
risk. After selecting H.J. Ford for award (based on its proposal's
high merit ratings and the lowest composite rate of all 8(a)
offerors), the SSA next selected INNOLOG. The SSA's selection of
INNOLOG was based on the conclusion that Offeror A's slightly
higher-rated proposal was not worth its significantly higher composite
hourly labor rate. SSA Decision on 8(a) Awards, Oct. 29, 1997. In
the second selection decision, wherein the SSA selected the three
remaining (non-8(a)) awardees, Camber simply did not make the cut.
SSA Decision on Small Business Awards, Oct. 29, 1997.
When Camber learned of the selection decisions, and pointed out that
it had participated in this procurement as an 8(a) offeror, the SSA
acknowledged his error, and revisited his selection decision. As
explained above, the SSA compared Camber's proposal with the proposal
of INNOLOG, and again selected INNOLOG. Addendum to Source Selection
Decision on 8(a) Awards, Nov. 26, 1997. Camber filed its protest 9
days later on December 5, arguing that it was prejudiced by the SSA's
failure to include its proposal with those of the other 8(a) offerors
in making his selection decision. We disagree.
Despite Camber's arguments to the contrary, the SSA's addendum to his
initial selection decision offers a detailed analysis of the relative
standings of Camber and INNOLOG. At the end of this analysis, the SSA
concludes that INNOLOG's slightly lower composite rate in the cost
area is a basis for discriminating between the two proposals.
There is nothing unreasonable about the SSA's revised selection
decision. To illustrate, we set forth below the evaluation
results--taken from the table earlier in the decision--for the four
highest rated 8(a) offerors--H.J. Ford, Offeror A, INNOLOG, and Camber
(as before, the awardees are shown in bold):
M-1
RATING
Color/
Risk M-2
RATING
Color/
Risk M-3
RATING
Color/
Risk T-1
RATING
Color/
Risk T-2
RATING
Color/
Risk PROPOSED
COST
Composite
Rate
(hourly)
H.J. Ford green
low green
low green
low yellow
low green
low $32.17 hr.
Offeror A green
low green
low green
low yellow
moderate yellow
moderate $37.64 hr.
INNO-
LOG green
low green
low green
moderate yellow
moderate yellow
low $32.38 hr.
Camber green
moderate green
moderate green
low yellow
moderate green
low $32.68 hr.
While Camber and INNOLOG are close in their evaluations, the table
shows that Camber had a higher risk rating than INNOLOG under two of
the three management evaluation factors, while INNOLOG had a higher
risk rating under one of three management factors. Even though Camber
had a higher rating under one of the technical evaluation factors, we
note that the management area was more important than the technical
area, so that the SSA could reasonably find that this slight advantage
under technical did not offset INNOLOG's advantage under management.
Finally, as the SSA pointed out, INNOLOG had a lower composite labor
rate. Thus, the revised selection decision is based on a reasonable
judgment about the relative merits of these proposals. Under these
circumstances, we conclude that Camber was not prejudiced by the
agency's oversight of its disadvantaged status at the time the initial
selection decision was made.[7] McDonald-Bradley, B-270126, Feb. 8,
1996, 96-1 CPD para. 54 at 3; see Statistica, Inc. v. Christopher, 102
F.3d 1577, 1581 (Fed. Cir. 1996) (our Office will not sustain a
protest unless the protester demonstrates that, but for the agency's
actions, it would have a substantial chance of receiving the award).
With respect to the evaluation, Camber, like MTC, mounts a challenge
to the evaluation assessments that provided a basis for distinguishing
between it and the awardees. Set forth below are two examples of
Camber's challenges.
Camber argues that its rating under the M-1 evaluation
factor--management approach--should have been green with low risk,
rather than moderate risk. According to Camber, the Air Force
unreasonably assessed moderate risk under this factor for two reasons:
(1) because it wrongly concluded that Camber's proposal was not clear
on when a task leader was selected--i.e., before or after the award of
a task order; and (2) because the proposal identified more than one
person who appeared to have authority for contract actions. In both
instances, our review shows nothing unreasonable about the Air Force's
conclusions.
On the first issue, despite its arguments, Camber admits that its oral
presentation charts--the highlights of the management proposal were
presented during the oral presentation--contained an error. The error
was that the charts expressly stated that the team leader was selected
upon award of the task order. Camber Proposal, Vol. IV, Charts 87 and
88. The record shows that Air Force evaluators preferred that an
offeror's team leader be identified prior to the issuance of an order,
and assessed a weakness against the proposal under the M-1 evaluation
factor. Proposal Analysis Report at 13.
Although Camber argues, and the Air Force concedes, that the Camber
presenter orally stated that the word "select" should be "confirm"
when showing chart 87, we fail to see how the agency's conclusion that
the proposal was unclear about when a team leader would be selected
was unreasonable. The chart itself, and either word
--"select" or "confirm"--leaves room for a reasonable conclusion that
the agency could award an order, and then learn the identify of the
awardee's team leader. Since this was a situation the agency hoped to
avoid, we conclude the moderate risk assessment was reasonable.
On the second issue, Camber again is forced to admit that its proposal
does identify more than one individual responsible for contract
authority. Although Camber argues in great detail that the proposal
was clear, and in some ways similar on this front to one of the
proposals selected for award, our review does not support Camber's
contentions--i.e., Camber's proposal is not as clear as it claims, and
the selected proposal is neither as similar to Camber's as urged, nor
as vague. Simply put, Camber has failed to show that the agency's
assessments of risk and merit were unreasonable, or inconsistent with
the evaluation criteria.
ITC'S AND ISN'S PROTESTS
ITC argues that it was unreasonable for the agency to fail to convene
discussions to give offerors an opportunity to improve their
proposals. In addition, ITC joins MTC and Camber in challenging the
agency's assessment of the teaming arrangements of H.J. Ford and
SEMCOR as low risk, and in arguing that the agency should have
performed a cost analysis, and should have rejected any proposal that
did not include cost and pricing data.
We have previously addressed ITC's challenge regarding the teaming
arrangements of H.J. Ford and SEMCOR, and its contention that the
agency was required to perform a cost analysis. As part of the cost
analysis discussion, we explained that the RFP contained a clause
expressly advising offerors that cost and pricing data was not
required here. RFP sec. L.E. Accordingly, the Air Force could not
reject proposals that did not include this information, as ITC urges.
With respect to whether the Air Force was required to hold discussions
here, we conclude it was not. The RFP advised potential offerors that
the agency reserved the right to make award without discussions or
negotiations. RFP sec. M.B.2.0(5). While we review the exercise of an
agency's discretion not to convene discussions to ensure that it was
reasonably based on the particular circumstances of the procurement,
including consideration of the proposals received and the basis for
the selection decision, this discretion is quite broad. International
Data Prods., Corp.; I-NET, Inc.; and Dunn Computer Corp., B-274654 et
al., Dec. 26, 1996, 97-1 CPD para. 34 at 16. Here, where the record shows
receipt of 16 proposals, the majority of which offered substantial
merit, as evaluated, at competitive prices, we see nothing
unreasonable about the agency's decision to continue with its stated
intent of awarding without discussions. Id. at 16-17.
ISN argues that the evaluation assessments made of its proposal
violate general acquisition streamlining initiatives. It also argues
that the evaluators were unreasonable in downgrading its proposal for
not including resumes of individuals with engineering experience
since, in its view, engineers are not required to perform the services
procured here.
ISN's protest explains that recent acquisition initiatives have sought
to reduce the government's role in weapons systems acquisitions, and
that its proposal was consistent with this reduced oversight role.
ISN Protest, Nov. 25, 1997, at 6. Thus, ISN argues that it was
unfairly evaluated for providing less effort than the Air Force
evaluators thought necessary. In our view, even if we accept that
ISN's arguments correctly reflect current Air Force management views,
internal agency guidance on general matters such as these does not
establish legal rights and responsibilities such as to make actions
taken contrary to those statements illegal. Reflectone Training Sys.,
Inc.; Hernandez Eng'g, Inc., B-261224, B-261224.2, Aug. 30, 1995, 95-2
CPD para. 95 at 6. The alleged failure to comply with initiatives like
the ones raised by the protester is a matter for consideration by the
agency. Talon Mfg. Co., Inc., B-261687, B-261687.2, Oct. 19, 1995,
95-2 CPD para. 184 at 3. For our purposes, the relevant inquiry is
whether the agency adhered to law and regulation by evaluating
proposals in accordance with the evaluation scheme announced in the
RFP. Reflectone Training Sys., Inc.; Hernandez Eng'g, Inc., supra.
Finally, with respect to ISN's complaint that the agency unreasonably
downgraded its proposal for not including resumes for engineers, we
think its contention is untimely. The RFP set forth extensive
educational requirements for offerors to use in collecting resumes for
their proposals, and many of the positions identified in the RFP
required engineering backgrounds. RFP sec. J, Attach. 2. If ISN
believed these requirements overstated the need for engineers, it was
required to challenge the terms of the solicitation prior to the time
set for receipt of initial proposals. 4 C.F.R. sec. 21.2(a)(1) (1997).
The protests are denied.
Comptroller General
of the United States
1. This RFP was issued electronically on the agency's Pre-Award
Information Exchange System (PIXS) located at
http://www.pixs.wpafb.af.mil. Other information relevant to this
protest, as discussed below, was posted at this site prior to issuance
of the RFP.
2. As will be discussed below, the record shows that when the SSA
selected H.J. Ford and INNOLOG for award, he was unaware that Camber
had also participated in the procurement as an 8(a) offeror. When
Camber brought its status to the agency's attention after not
receiving an award, the SSA revisited his selection decision. In a
document prepared prior to Camber's December 5 protest, the SSA
compared Camber's proposal with the proposal of INNOLOG, and again
selected INNOLOG. Addendum to Source Selection Decision on 8(a)
Awards, Nov. 26, 1997.
3. Since MTC is not eligible for one of the 8(a) awards, the awards to
H.J. Ford and INNOLOG are not at issue in MTC's protest.
4. For the record, we recognize that there is one CLIN, CLIN 0004,
which anticipates the payment of travel expenses and computer time on
a cost reimbursable basis. This CLIN, however, covers incidental
expenses and is not the predominant effort or expense for these
contracts. RFP sec. B, Summary.
5. MTC claims the submission of such data is required by sections
L.III.3.4.1.1 and 3.4.2.3 of the RFP. These paragraphs, however, only
provide instructions for submitting such data when it is otherwise
required. In fact, to avoid any uncertainty the RFP also advises
(later in the same section cited by the protester) that "[t]he
instructions for preparation of the content of the Cost Volume shall
not take precedence over requirements of the other clauses of the
contract . . . ." RFP sec. L.III.3.4.2.7.
6. We also reject MTC's contention that the agency could not
reasonably select RJO for award, given RJO's higher evaluated cost for
its sample task. The record shows that while RJO's composite labor
rate was lower than MTC's, MTC had a lower evaluated cost for its
sample task. The Air Force points out that the RFP advised that an
offeror's composite labor rate would be more important than its
evaluated cost for the sample task. In addition, despite MTC's claim
that the Air Force did not consider sample task costs, the evaluation
record shows that such costs were reviewed and presented to the SSA.
Accordingly, we conclude that the selection of RJO for award was
reasonable, even though RJO's sample task costs were higher than
MTC's.
7. We also disagree with Camber's assertion that the SSA's
reconsideration of his selection decision should be given no weight
because it is a "redetermination prepared in the heat of an
adversarial process," as we stated in our decision in Boeing Sikorsky
Aircraft Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD para.
91 at 15. Unlike in Boeing, the agency here admitted its error, and
did so before the protest process was initiated. Given these facts,
and the fact that the redetermination appears reasonable and
consistent with the evaluation criteria, we have no basis to reject
the SSA's conclusion that he still would have selected INNOLOG, rather
than Camber, for award here.