BNUMBER: B-278897.4
DATE: May 12, 1998
TITLE: WP Photographic Services, B-278897.4, May 12, 1998
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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:WP Photographic Services
File: B-278897.4
Date:May 12, 1998
Trisa J. Thompson, Esq., and J. Gregory Correnti, Esq., Seyfarth,
Shaw,
Fairweather & Geraldson, for the protester.
Marian Sullivan, Esq., and Martin McAlwee, Esq., Department of the Air
Force, for the agency.
Linda C. Glass, Esq., and Paul I. Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency reasonably determined to exclude protester's proposal from the
competitive range where the agency concluded, on the basis of an
evaluation which was reasonable and consistent with the solicitation
evaluation criteria, that the proposal had no reasonable chance of
being selected for award because major revision was necessary to
correct substantial deficiencies in the relatively high-priced
proposal.
DECISION
WP Photographic Services protests the exclusion of its proposal from
the competitive range under request for proposals (RFP) No.
F08650-96-R-0415, issued by the Department of the Air Force for visual
information end products and technical services in support of
pre-launch, launch, post-launch, and non-launch operations, also
called the Visual Information Technical Contract (VITC). WP contends
that the elimination of its proposal from the competitive range lacked
a reasonable basis and was otherwise improper.
We deny the protest.
The RFP, issued on May 20, 1997, contemplated the award of a
fixed-price, indefinite-delivery, indefinite-quantity, labor-hour
contract for a base period with four 1-year options. The purpose of
the contract is to obtain visual imaging end products for launch and
non-launch events for the 45th Space Wing and NASA's Kennedy Space
Center. The RFP stressed that the VITC was one of the largest
contracts of its type in the Air Force and the quality and timeliness
of its products and services have a far-reaching effect. The RFP
further stressed that the critical nature of the requirement dictates
that full support capability be available on short notice with quick
turnaround delivery times and that the contractor must be fully
capable of simultaneous operation for the various launch programs.
One of the significant requirements of the solicitation was the
offeror's preparation of a VITC statement of work (SOW) incorporating
the stated requirements of the RFP.
The RFP provided for a best value award to be determined by an
integrated assessment of the cost criterion, the specific criteria,
assessment criteria, proposal risk, performance risk, and general
considerations. The RFP listed the following criteria:
(1) Technical/Management
(a) Project Management
(b) Image Acquisition/Processing/End Products
(2) Cost
(a) Completeness
(b) Reasonableness
(c) Realism
(3) General Considerations
All technical evaluation factors, when combined, were approximately
equal to cost. General considerations were of lesser importance but
were to be an important consideration in the award decision. The RFP
also provided that proposals would be evaluated for proposal risk,
which would involve an assessment of the risk associated with the
offeror's proposed approach to accomplish the requirements. Proposals
were also to be evaluated for performance risk, which would involve an
assessment of the probability of the offeror successfully
accomplishing the proposed effort based on the offeror's demonstrated
relevant present and past performance.[1]
[Deleted] initial proposals were received by the June 20, 1997 closing
date. After evaluation of the initial proposals, the Air Force
determined that all proposals contained informational deficiencies and
format errors. Amendment No. 0003 was issued to clarify common
problem areas and allow all offerors an opportunity to revise their
proposals. Each offeror submitted a revised proposal by the September
19 closing date. Each revised proposal was evaluated for performance
and proposal risk in addition to being evaluated under a
color/adjectival rating scheme for each of the evaluation factors.[2]
A competitive range briefing was provided by the evaluators to the
Source Selection Authority. The proposals of [deleted] firms,
including WP, were excluded from the competitive range. The agency
reports that the competitive range was determined on the basis of
price and technical merit, including proposal deficiencies and their
potential for correction and the possibility of selection for award.
Offerors were notified of exclusion from the competitive range by
letters dated December 12, 1997. A debriefing was held with WP on
January 23, 1998, in which the agency identified areas of WP's
proposal needing improvement. WP filed this protest on February 2,
1998.[3]
The evaluation of proposals and the determination of whether a
proposal is in the competitive range are principally matters within
the contracting agency's discretion, since agencies are responsible
for defining their needs and for deciding the best method for meeting
them. Beneco Enters., Inc., B-278591, Feb. 17, 1998, 98-1 CPD para. 91
at 3. When a proposal is technically unacceptable and would require
major revisions to become acceptable, the agency is not required to
include it in the competitive range. Laboratory Sys. Servs., Inc.,
B-256323, June 10, 1994, 94-1 CPD para. 359 at 2. Even where a proposal
is fully acceptable technically (or could be rendered so through
discussions), it may properly be excluded from the competitive range
if, in light of the competing proposals, the contracting officer
determines that the proposal has no reasonable chance of award. Curry
Contracting Co., Inc.,
B-254355, Dec. 13, 1993, 93-2 CPD para. 334 at 3. In reviewing an
agency's determination to exclude a proposal from the competitive
range, we apply the standard used in reviewing all aspects of an
agency's technical evaluation of proposals: we review the record to
determine whether the agency's judgment, including the judgment that a
particular proposal did not have a reasonable chance of award, was
reasonable, supported by the record, and consistent with the
applicable evaluation criteria. Tri-Services, Inc., B-256196.4, Sept.
30, 1994, 94-2 CPD para. 121 at 2.
Here, under the first listed technical/management factor, project
management, WP's proposal was evaluated with a color rating of red,
with no strong points and several weak points. A total of 24
deficiency reports (DRs) and 60 clarifications requests (CRs) were
generated as a result of WP's evaluation under this area. Under the
second factor, WP's proposal generated and received a color rating of
red, with no strong points and numerous weak points. WP also received
a high proposal risk rating because the evaluators were concerned
about quality, delay, and nonsupport issues. WP did receive a low
rating for performance risk based on its
predominantly satisfactory past performance ratings. Finally, WP's
proposed price was higher than that of all but one of the other
offerors.
The agency's determination that WP was outside of the competitive
range with no reasonable chance for award was particularly based on
WP's failure to demonstrate an approach to receiving workorders,
deploying resources, and performing work resulting in consistently
acceptable image files/end products in required time frames.
Specifically, the agency found that WP:
a. Fail[ed] to meet contract requirements by stating in . . .
its response to Amendment No. A0003 . . . that "WP Photo can not
promise in advance that we will positively make all timeliness"
relevant to 3 back-to-back launch and landing events and
non-launch events.
b. Propos[ed] the use of nonavailable Government-provided
services/support.
c. Fail[ed] to describe setup and operational processes to
include personnel, equipment, and numbers and types of cameras,
lenses, trackers, and film for each type of vehicle
launch/landing events.
d. Fail[ed] to describe technical processes relative to over and
above image acquisitions.
e. Fail[ed] to describe technical processes relative to camera
and optical repair capabilities.
f. Fail[ed] to provide specifications for all film products
listed in Exhibits A, B, and C.
g. Fail[ed] to provide a users guide for customers.
h. Fail[ed] to provide a phase-in plan ensuring a smooth and
nondisruptive transition . . . .
i. Propos[ed] a limited management staff with numerous
responsibilities.
This information was provided to WP during the debriefing held on
January 23.
In its initial protest, WP argued that the Air Force's competitive
range determination was flawed because it failed to consider costs or
past performance and failed to evaluate the areas of
technical/management as required by section M of the solicitation. As
explained above, the record establishes that the agency considered
both cost and past performance in making the competitive range
determination. In addition, the agency evaluated the technical and
management areas of the proposals as required by section M.
WP also argued that in view of the fact that the solicitation required
offerors to write their own SOW and propose a plan based on general
guidance from the solicitation which necessarily invites variations in
proposal responses and an increase in CRs and DRs, the elimination of
its proposal from the competitive range lacked a reasonable basis. WP
maintained that the deficiencies cited by the agency did not pose an
insurmountable obstacle and could readily be addressed through
discussions. The agency maintains that WP's proposal did not
reasonably address the essential requirements of the solicitation and
contained substantial technical drawbacks that would require virtually
an entirely new technical proposal in order to become technically
acceptable.
The record supports the agency's determination to exclude WP's
proposal from the competitive range. In response to a solicitation
that specifically cautioned offerors about the need for timely
delivery of image files/end products, WP stated in its proposal, in
bold print, that it could not promise in advance that it would
positively make all time frames. This provided the agency with a
reasonable basis to conclude that WP was not committing to fulfilling
an essential requirement of the solicitation. Further, as outlined
above, the agency downgraded WP's proposal for numerous failures to
provide for essential requirements of the solicitation, such as:
failing to provide a user's guide; failing to provide technical
descriptions for meeting government equipment maintenance support;
failing to provide technical descriptions for meeting presentation
services; failing to provide a contingency plan; and failing to
provide maximum daily production capacity. Further, WP's proposal
generated almost three times as many DRs and CRs as any other
offeror's and was [deleted]. There were no strong points in WP's
proposal and its proposal risk assessment was high because the
evaluators concluded that WP's approach would result in nonsupport,
delays, inconsistent quality, delayed launch analysis/news releases,
and increased equipment failure. WP did not directly challenge or
rebut the agency's substantive findings about its inadequate response
to essential requirements, other than asserting that the CR's and DR's
were duplicative, and simply arguing that these matters could have
been addressed during discussions. However, in light of its
determination that WP's proposal was technically unacceptable with no
strong points and numerous weak points, and would need major revisions
to become acceptable, the agency reasonably eliminated the proposal
from the competitive range on the basis that the proposal did not have
a reasonable chance for award.
In its comments on the agency report, WP argues that the Air Force
failed to treat all offerors fairly and equally because the agency
admitted [deleted] proposals back into the competitive range that
received the same color code assessment as did WP, and that WP
received a superior technical/management risk assessment than
[deleted] of those offerors. While the protester is correct in that
the [deleted] proposals admitted back into the competitive range had
the same color code assessment as did WP, the record shows that those
[deleted] offerors were more favorably evaluated within the same
range. [Deleted] offerors' proposals generated significantly fewer
CRs and DRs, [deleted], than did WP and [deleted] proposals were
credited with having several strong points whereas WP's proposal did
not have any strong points. WP also alleges that it was not treated
fairly because it had a superior technical/management risk assessment
than the [deleted] proposals readmitted to the competitive range.
However, while WP's proposals did receive a better performance risk
rating than those [deleted] offerors, those proposals received a
moderate performance risk rating and were [deleted] cited as having
predominately satisfactory ratings. Considering all of the other
legitimate concerns that the evaluators had with WP's proposal and the
relative rankings of the other proposals, we see no basis to conclude
that WP has been treated unfairly.
Finally, in its comments, the protester for the first time responds to
the agency's stated DRs. In the majority of the instances, WP
maintains that the agency's concerns could be resolved during
discussions and in other instances WP contends that the generated DR
did not reflect a specific solicitation requirement. As explained
above, even where a proposal can be rendered technically acceptable
through discussions, it still may properly be excluded from the
competitive range, where, when compared to competing proposals, the
contracting officer determines that it has no reasonable chance for
award. Curry Contracting Co., Inc., supra. In any event, WP's
challenge to these evaluations are untimely. During a debriefing held
on January 23, 1998, WP was specifically advised about the concerns
the agency had with its technical proposal. WP was also provided with
debriefing charts that detailed all areas where the agency determined
WP had failed to adequately addressed the requirements. In its
initial protest filed with our Office on February 2, WP did not
specifically challenge the evaluation of its proposal. Our Bid
Protest Regulations require that protests not based upon alleged
improprieties in a solicitation be filed not later than 10 days after
the basis of protest is known or should have been known (whichever is
earlier) or not later than 10 days after a statutorily required
debriefing. 4 C.F.R. sec. 21.2 (a)(2) (1997). Here, during the
debriefing, the protester was advised of the specific technical
shortcomings of its approach and the CRs and DRs provided in the
report merely elaborated on the areas previously identified by the
agency as deficient. Consequently, WP was required to raise the
particular objections concerning the evaluation of its proposal within
10 days of the debriefing.
The protest is denied.
Comptroller General
of the United States
1. The possible evaluation ratings for proposal risk and performance
risk were high, moderate, and low.
2. The color/adjectival ratings were blue/exceptional,
green/acceptable, yellow/marginal, and red/unacceptable.
3. The other two offerors whose proposals were excluded from the
competitive range also filed protests that were subsequently dismissed
when the agency decided to include those proposals in the competitive
range.