BNUMBER: B-278904.3
DATE: April 13, 1998
TITLE: Techsys Corporation, B-278904.3, April 13, 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:Techsys Corporation
File: B-278904.3
Date: April 13, 1998
Kenneth D. Brody, Esq., and J. Patrick McMahon, Esq., McMahon, David &
Brody, for the protester.
Paralee White, Esq., Gadsby & Hannah, for Walcoff & Associates, an
intervenor.
Gena E. Cadieux, Esq., Patricia D. Graham, Esq., and Joseph A.
Lenhard, Esq., Department of Energy, for the agency.
Jacqueline Maeder, Esq., and Paul Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Where solicitation proposal preparation instructions set forth
type size and a clearly defined page limitation for proposals, agency
appropriately declined to consider those pages of the protester's
proposal which exceeded the specified page limitation.
2. Agency evaluation of technical proposals is unobjectionable where
the record establishes that the evaluation was reasonable and
consistent with the stated evaluation factors; protester's mere
disagreement with the agency's conclusion does not render the
evaluation unreasonable.
DECISION
Techsys Corporation protests the Department of Energy's (DOE) decision
not to award Techsys a contract under request for proposals (RFP) No.
DE-RP01-97EI30000, issued by DOE for technical services for the Energy
Information Administration (EIA).[1] Techsys asserts that DOE
improperly and arbitrarily eliminated certain pages of Techsys's
proposal from consideration and otherwise improperly evaluated the
proposal.
We deny the protest.
DOE issued the RFP, referred to as the EIA Omnibus Procurement (EOP),
via the Internet on July 7, 1997. This solicitation, which combined
technical support services that were currently being performed for EIA
under 11 separate support services contracts, sought separate
proposals for 3 functional areas/contract line items (CLIN) consisting
of information management and product production (IM&PP) support
services (CLIN 001); energy analysis and forecasting support services
(CLIN 002); and information technology support services (CLIN 003).
For each CLIN, the RFP listed a maximum number of direct productive
labor hours (DPLH), specifically, 528,984 DPLH for CLIN 001, 183,000
DPLH for CLIN 002, and 412,920 DPLH for CLIN 003. The EOP provided
for multiple indefinite-quantity awards with awardees becoming
eligible for post-award competition for task orders for a 3-year base
period with one 2-year option. Since each contract will have cost
reimbursement and fixed-price provisions, task orders are to be issued
on both a cost-plus-fixed-fee and a fixed-price basis.
Section L.15 of the RFP stated that DOE would "award contracts
resulting from this solicitation to the responsible offerors whose
offer conforming to the solicitation will be the most advantageous to
the Government, cost or price and other factors, specified elsewhere
in the solicitation, considered" and advised that DOE intended to
award on the basis of initial offers without discussions. Section
M-1(B) reiterated that award would be made to the offerors whose
conforming proposals were determined to be most advantageous to the
government. At section M-3, the RFP identified the following weighted
evaluation factors and subfactors:
1. Business management, technical and organizational approach50
1.1 Business management plan 20
1.2 Technical plan 20
1.3 Organizational approach 10
2. Past and present experience 20
3. Corporate resource management 20
3.1 Retain labor categories 5
3.2 Additional resources 5
3.3 Staff training and development 5
3.4 Provide automated data processing (ADP)
hardware, software, facilities 5
4. Videotape response/presentation 10
5. Past performance
Offerors were advised that past performance would be adjectivally
rated, and that the technical proposal was significantly more
important than past performance or cost, and that past performance was
also more important than cost.
In submitting a total, estimated price, offerors were advised at
section L.34(2) to include a fixed-price quotation for 50 percent of
the maximum amount of level of effort (LOE) or DPLH for the total
5-year contract term. Section M.4 of the RFP advised offerors that
the proposed fixed price for a particular functional area would be
doubled and that amount would be used as a ceiling amount, indicating
that this amount would provide the basis for the price comparisons of
the proposals.
Section L.31 of the RFP contained the proposal preparation
instructions for the Technical and Business Management proposal.
Section L.31(A)(1) stated that each offeror will provide a Technical
and Business Management Proposal for each functional area for which an
offer is being made. The provision also stated:
All materials submitted shall be in typeface Times New Roman 12
Point, doubled spaced on 8 1/2 inch by 11 inch white paper with
one inch margins all around and printed on one side. The
Technical and Business Management Proposal shall not contain more
than 150 numbered pages inclusive of the table of contents,
charts, exhibits, and any other materials the Offeror deems
required for each functional area for which an offer is being
made.
On August 1, DOE issued amendment No. 001, which answered questions
from offerors concerning the solicitation. Two questions concerning
the page limitation were asked:
L.31(A)(1) Volume II - Tech & Bus Mgt Proposal. It is our
understanding that the section and subsection tab dividers are
not included in the page count. Is this correct?
The answer provided by DOE stated:
No. 'The page limit is a maximum of 150 pages per functional
area in its entirety'. The '150 numbered pages [is] inclusive
of the table of contents, charts, exhibits, and any other
material the Offeror deems required for each functional area for
which an offer is being made'.
The second question asked was whether DOE would "consider excluding
the table of contents from the 150 page count?" The agency answered,
"No."
Techsys was 1 of 12 offerors that submitted proposals on CLIN 001,
IM&PP support services, which consists of data operations, including,
among other things, survey data collection, survey and data systems
operations, sampling and estimation, and data integration and
analysis; data integration, including, among other things, acquiring
and developing data, maintaining integrated databases, performing
consistency and quality tests, and calculating summary statistics;
and, product production, including, among other things, production,
publication, and dissemination and automated systems support for the
dissemination of energy data. When DOE counted the pages in each
proposal, it determined that Techsys's proposal exceeded the 150-page
limit by 28 pages. By letter dated September 18, the TEC returned
these 28 pages to Techsys, informing the protester that its proposal
exceeded the maximum 150 pages and that "only the first 150 pages of
your Technical and Business Management Proposal will be accepted and
forwarded for review and evaluation by the Technical Evaluation
Committee." Other proposals which exceeded the page limit were
treated in the same manner.
Members of the technical evaluation committee (TEC)[2] individually
evaluated each proposal and, in internal discussions, reached a
consensus on the strengths and weaknesses of each proposal and
assigned each a point score of 0, 2, 5, 8 or 10 under each evaluation
criterion.[3] Numerical ratings were multiplied by the weight for the
factors and the scores were then totaled. A proposal that received
scores of 10 on each evaluation factor would receive a maximum point
score of 1,000. Past performance was assigned an adjectival rating of
"excellent," "good," "fair" or "neutral," "poor," or "unsatisfactory."
The TEC briefed the source selection official (SSO) and, based on the
SSO's review of the evaluations and recommendations, the SSO
determined to make awards to the six companies which submitted the
highest technically-rated proposals. Techsys, whose proposal was
tenth-ranked technically was not awarded a contract. In his selection
statement, the SSO noted: "past performance information was received
and evaluated, and price proposals were evaluated. These evaluations
were considered."
The Techsys proposal received a total score of 300, consisting of the
following point scores and weighted scores for each factor and
subfactor:
Score Weighted Score
1. Business management and organizational
approach
1.1. Business management plan 5 100
1.2. Technical plan 5 100
1.3. Organizational approach 5 50
subtotal 250
2. Past and present experience 0 0
3. Corporate resource management
3.1. Retain labor categories 0 0
3.2. Additional resources 0 0
3.3. Staff training and development 0 0
3.4. Provide ADP hardware, software,
facilities 0 0
subtotal 0
4. Video presentation 5 50
TOTAL 300
Techsys's past performance was rated "good" and its proposed price was
sixth low of the 12 offers. The relevant technical scores, adjectival
ratings for past performance, and evaluated ceiling prices for the
awardees' and the protester's proposals were as follows:
Offeror Technical/Business Past Proposed Ceiling
Management Score Rating Price and Rank
Orkand Corp 725 good $27,271,220 (1)
SAIC 710 excellent $30,220,500 (2)
Westat 695 excellent $47,680,494 (10)
Abacus 590 excellent $43,406,470 (7)
Z, Inc. 575 excellent $37,296,764 (4)
Walcoff 515 excellent $50,420,798 (11)
Techsys 300 good $41,341,764 (6)
DOE notified Techsys that it had not been selected for award and,
after a debriefing in late December, Techsys filed this protest with
our Office.
PAGE LIMITATION
Techsys argues that DOE improperly and unreasonably excluded pages
from its proposal that exceeded the 150-page limitation. The
protester complains that DOE's methodology of counting the first 150
pages and discarding pages beyond the 150 pages is not authorized by
the RFP or by any procurement regulation. The protester argues that
DOE should have provided Techsys "the opportunity to clarify the pages
of its submission that should be considered in order to conform with
the 150 page limit." Techsys points out that Federal Acquisition
Regulation (FAR) sec. 15.607(a) (June 1997) obligates the agency to
examine proposals for waivable informalities, irregularities, and
mistakes which can be corrected through clarifications,[4] and asserts
that such clarifications would have caused the agency to discard
unmarked pages, redundant table of contents pages and certain clearly
surplus narrative information contained in one section. Techsys
asserts that "the inclusion of this information in the first place
plays no meaningful role in the proposal, and its elimination through
the process of clarification does not constitute a prohibited revision
or improve the substance of the proposal in any measurable way."
Offerors are required to prepare their proposals within the format
limitations set out in the solicitation, including the page limits at
issue here, and assume the risk that proposal pages beyond the page
limits will not be considered because consideration of an offeror's
excess proposal pages could give that offeror an unfair competitive
advantage. All Star Maintenance, Inc., B-244143, Sept. 26, 1991, 91-2
CPD para. 294 at 3-4; Infotec Dev., Inc., B-238980, July 20, 1990, 90-2
CPD para. 58 at 4-5.
Here, the RFP clearly provided for a 150-page limit on technical
proposals and in response to specific questions concerning the page
limit, DOE indicated by amendment that any page that an offeror deemed
necessary to include in its proposal would be included in the page
count, including the table of contents and tab dividers. Thus,
offerors were on notice both of the 150-page limitation and that any
and all pages, including unmarked pages, table of contents pages and
all narratives would be considered in the page calculation. Techsys's
proposal clearly failed to comply with the solicitation format
requirements. Techsys did not protest the page limits of the RFP, but
chose to exceed the proposal page limitation set forth in the RFP,
thereby assuming the risk that excess pages in its proposal would be
rejected for noncompliance with the page limits. Infotec Dev., Inc.,
supra, at 4.
While Techsys argues that DOE should have been more flexible in the
handling of the page limitation, an agency that has set out a clear
page limitation in a solicitation is not obligated to sort through
hundreds of pages to decide which pages should or should not be
counted toward that limitation. HSQ Tech.,
B-277048, Aug. 21, 1997, 97-2 CPD para. 57 at 3 n.1. Further, where, as
here, the agency has set specific page limits and indicated that any
and all pages submitted would count toward that limit, the agency was
not obligated to ask the offeror, after submission of its proposal, to
"clarify" its proposal by selecting which pages it wants counted.
Infotec Dev., Inc., supra, at 5. Under these circumstances, the
agency reasonably computed the 150 pages and properly declined to
consider those portions of Techsys's proposal that exceeded the stated
limits. All Star Maintenance, Inc., supra, at 3-4.
TECHNICAL EVALUATION
Techsys otherwise objects to the technical evaluation of its proposal
on the basis that the evaluators provided little or no explanation or
documentation for their determinations, and that the evaluation of its
proposal under factor 1, Business Management, Technical and
Organization Approach, was improper. Techsys also objects to the
evaluation of its past performance.[5]
In support of its argument that the evaluation is poorly documented
and does not provide satisfactory support for the point scores
assigned, the protester uses as an example the evaluation consensus
sheet for criterion 1.3, which lists no strengths or weaknesses for
its proposal. Techsys complains that it is impossible to discern the
basis for this determination and asserts that the finding that the
proposal has no strengths "appears to be at odds with the
determination that the same proposal has no weaknesses." Techsys
argues that because the worksheet was blank, the evaluation of this
subcriterion rests exclusively on an unsupported point score.
Techsys's argument that the evaluation was improperly documented is
without merit. As noted above, each factor and subfactor was
evaluated on a point scale of 0, 2, 5, 8, or 10. A score of "5"
reflected a proposal response which appeared capable of meeting the
requirement; such a response had few significant strengths or
weaknesses. The agency rating plan defined a "strength" as an aspect
of a proposal which appears to enhance the likelihood of successful
performance of the requirements; a "weakness" was defined as an aspect
of a proposal which fails substantively to address matters under
evaluation or otherwise appears to reduce the likelihood of successful
performance of the requirements. The term "significant" when used to
modify "strength" or "weakness" indicated a major strength or weakness
which would have substantial positive or negative impact on the
offeror's ability to perform the required tasks.
The protester wrongly assumes that if a proposal is determined to have
no weaknesses, it must have some strengths. There is no basis to
assume such an inherent linkage; a proposal reasonably could be
determined to have several strengths and no weaknesses or to have
several strengths and several weaknesses. The lack of any listed
strengths or weaknesses meant that the evaluators found that, while
the proposal was acceptable and the offeror appeared capable of
performing the tasks required, the proposal did not evidence anything
that either enhanced or reduced the likelihood of successful
performance. While the protester believes that the evaluators should
have written something on the evaluation form, the fact that no
strengths or weaknesses were listed is sufficient to indicate that
neither was found. PRC, Inc., B-274698.2, B-274698.3, Jan. 23, 1997,
97-1 CPD para. 115 at 5-6.
Business Management Plan
Section M.3 of the RFP advised offerors that their business management
plan under factor 1 would be evaluated:
on the degree of its feasibility and effectiveness in task
planning, monitoring, scheduling, cost controls, quality
assurance techniques, security management, and the transition
plan as it relates to the functional area in the Statement of
Work for which an offer is being made. Also to be evaluated under
the business management plan
will be the adequacy of the Offeror's procedures for awarding,
managing, and monitoring subcontracts and consultant agreements
and plans to improve productivity and timeliness. The plan will
also be evaluated on the adequacy of the proposed procedures to
maintain productivity and timeliness given a budget reduction.
To facilitate the evaluation, section L.31(B)(a) required, among other
things, that offerors identify how task planning, monitoring,
scheduling, cost controls, and quality assurance techniques will be
determined, managed, and reported for work performed under this
contract.
The TEC assigned the Techsys proposal a score of 5 on this subfactor.
The evaluators found that, while Techsys's proposal provided a good
detailed discussion of the effectiveness of its cost controls, the
proposal provided limited discussion of quality assurance techniques
related to business practice.
Techsys contends that its rating on subfactor 1.1 is incorrect and
that the agency's noted weakness "is a particularly puzzling
evaluation comment because [Techsys] included an extended discussion
of its unqualified quality assurance techniques at pages 17-20 of its
[proposal]." Techsys also contends that DOE departed from the
evaluation criteria in evaluating subfactor 1.1. Specifically,
Techsys states that the RFP is very explicit about evaluating quality
assurance as it relates to the functional area in the SOW and argues
that there is no requirement that offerors discuss quality assurance
with respect to business management techniques.
The evaluation of technical proposals is a matter within the
contracting agency's discretion since the agency is responsible for
defining its needs and the best method of accommodating them. Loral
Sys. Co., B-270755, Apr. 17, 1996, 96-1 CPD para. 241 at 5. In reviewing
an agency's technical evaluation, we will not reevaluate the proposal,
but will examine the record of the evaluation to ensure that it was
reasonable and in accordance with stated evaluation criteria, and not
in violation of procurement laws and regulations. Id.
The record does not show that the agency improperly evaluated
Techsys's proposal concerning its business management plan. We have
reviewed pages 17 to 20 of the Techsys proposal and, contrary to
Techsys's position, the protester did not provide a detailed
discussion of its quality assurance plan. Rather, the protester's
proposal only provides its quality assurance procedures as they relate
to a limited situation--[deleted]. However, Techsys does not describe
any quality assurance techniques for the other tasks outlined in the
SOW or for any tasks related to business management. Based on this
record, DOE reasonably concluded that Techsys's discussion of its
quality assurance procedures was limited and presented a weakness in
its proposal.
We also find unpersuasive Techsys's contention that the evaluators'
consideration of quality assurance techniques related to business
practices represents the use of an undisclosed evaluation criterion.
Solicitations must inform offerors of the basis for proposal
evaluations, and the evaluation must be based on the factors set forth
in the solicitation. FAR sec. 15.605(d)(1), 15.608. However, while
agencies are required to identify the major evaluation factors, they
are not required to identify all areas of each factor which might be
taken into account, provided that the unidentified areas are
reasonably related to or encompassed by the stated criteria. Bioqual,
Inc., B-259732.2, B-259732.3, May 15, 1995, 95-1 CPD para. 243 at 4.
While the solicitation did not explicitly provide that the proposals
would be reviewed for the offerors' quality assurance procedures as
they relate to its business management plan, in our view, that feature
is intrinsically related to and encompassed by the subfactor. That
is, the business management plan was to be evaluated as it related to,
among other things, task monitoring, cost control, and quality
assurance. DOE reasonably viewed these issues and quality assurance
as intertwined with a firm's business practices generally. Thus,
DOE's consideration of quality assurance techniques related to an
offeror's business management plan was unobjectionable and consistent
with the stated evaluation criteria.
In any event, even if Techsys were correct and its proposal should not
have been downgraded for a limited response regarding its quality
assurance techniques, its evaluation would not change. Specifically,
other than the one strength listed above, the record does not show
that Techsys's proposal evidenced other significant strengths and the
protester does not identify other strengths it believes should have
been noted here by the evaluators. Thus, even if it had not been
assessed a weakness, Techsys's score on this subfactor would remain
unchanged as the proposal still would properly be characterized as
having "few significant strengths or significant weaknesses."
Technical Plan
Section M.3 also advised offerors that subfactor 1.2, technical plan,
would be evaluated on the effectiveness of the offeror's technical
plan as demonstrated by its technical expertise to accomplish the work
in the functional area for which an offer is being made. Section
L.31(B)(a) required that each offeror provide a detailed discussion of
its technical plan to accomplish all of the specific requirements of
the SOW, including references in support of the plan.
The TEC assigned Techsys's proposal a score of 5 on this subfactor,
finding one strength (real-time editing expertise) and two weaknesses
(no demonstrated ability in survey design and no expertise in
information dissemination and product support). Techsys argues that
its proposal was improperly assessed on this subfactor and that the
designated weaknesses were discussed in its proposal. Techsys
believes that its proposal warranted a score of 8 or 10 under this
subfactor.
We have reviewed the proposal pages Techsys cites as relevant to its
discussion on survey design and dissemination, and they provide no
basis to question DOE's evaluation. For example, in Techsys's "Data
Operations" section, we find no mention of survey design work or
dissemination work. Indeed, the headings under this section are
[deleted]. Contrary to the protester's assertion, we see no specific
references to dissemination in a second section of Techsys's proposal,
although the protester does mention preparation of [deleted]. Techsys
does discuss its "[deleted] approach" to survey construction and
execution on 2 pages of its technical proposal, [deleted]. However,
this discussion is broad and provides few details or specifics.
In any event, as was the case for subfactor 1.1 discussed above,
Techsys's proposal was evaluated as "fair" or "neutral" on this
subfactor, with a score of 5, indicating that the evaluators believed
Techsys was capable of performing on this subfactor. Even if the
evaluation were erroneous as to the weaknesses noted, Techsys's score
on this subfactor would not change since, again, DOE noted only one
strength and Techsys does not question this evaluation or suggest
other strengths. Thus, Techsys does not demonstrate that its proposal
had the significant strengths required for a higher score,
irrespective of the assessed weaknesses.
Past Performance
Section M.3 of the RFP provided that an offeror's past performance
would not be point scored but would be evaluated with respect to
satisfaction of customer cost and technical requirements, customer
relations, production and product timeliness, corporate integrity and
all other functions associated with the management and administration
of tasks.
Ratings for past performance were based on responses from
questionnaires submitted by offerors' references. References were to,
among other things, provide a performance rating on a scale of 0 to
10, where 0 is unacceptable and 10 is outstanding, on 25 data
operations, data integration, and product production tasks. While the
evaluators rated Techsys's past performance as "good," Techsys argues
that it should have received an "excellent" rating, noting that it "is
unaware of any government sources who would have provided information
to the agency that would warrant less than an excellent rating."
Techsys also states that it is aware of at least one source that rated
its past performance as excellent. The protester argues that if it
had received the "excellent" past performance rating it deserved, it
would have been awarded a contract.
The record shows that while one reference rated Techsys outstanding
(10) on the majority of the tasks, a second reference rated Techsys
outstanding (10) on only three tasks, a "9" on four tasks, "8" on nine
tasks, and "7" on four tasks. Thus, while Techsys's past performance
evaluation was clearly favorable, DOE's "good" rating was
unobjectionable as it reasonably reflects the combined past
performance evaluations. In sum, we see no basis to object to the
agency's evaluation of the Techsys proposal.
The protest is denied.
Comptroller General
of the United States
1. EIA is an independent statistical and analytical agency within DOE.
2. Three separate TECs, one for each CLIN or functional area,
evaluated the proposals.
3. As relevant here, a score of 5 reflected a proposal which appeared
capable of meeting the RFP requirements and had few significant
strengths or significant weaknesses. A score of 8 reflected a
proposal evidencing very good responses showing a high probability of
meeting the RFP's requirements and had significant strengths and few
significant weaknesses. A score of 10 reflected a proposal
distinguished by its excellence as to have a very high probability of
meeting all RFP requirements. Such a response would normally evidence
significant strengths and no significant weaknesses.
4. FAR sec. 15.607(a) provides that contracting officers shall examine
all proposals for minor informalities or irregularities and apparent
clerical mistakes and that communication with offerors to resolve
these matters is clarification, not discussion, and does not trigger
the requirement for discussions with all competitive range offerors
unless the communication prejudices the interest of other offerors.
5. In its initial protest submission, Techsys also argued that DOE's
evaluation of factor 4, its video presentation, was improper. The
agency provided explanation and support for its technical assessment
of the video presentation in its report, but Techsys, in its comments
filed on that report, did not rebut the agency's position. Therefore,
we regard this issue as abandoned. Theisinger und Probst
Bauunternehmung GmbH, B-275756, Mar. 25, 1997, 97-1 CPD para. 168 at 6
n.2.