BNUMBER: B-279295
DATE: June 1, 1998
TITLE: Dual, Inc., B-279295, June 1, 1998
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Matter of:Dual, Inc.
File: B-279295
Date:June 1, 1998
Kevin M. Kordziel, Esq., Jenner & Block, for the protester.
Kacie A. Haberly, Esq., General Services Administration, for the
agency.
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency reasonably evaluated the protester's proposal under the
solicitation's relevant corporate experience evaluation factor as
technically unacceptable, where the proposal did not evidence
sufficient experience in a required area, and the references listed in
the protester's proposal and contacted by the agency did not indicate
that the protester had the requisite experience.
DECISION
Dual, Inc. protests the rejection of its proposal as technically
unacceptable under request for proposals (RFP) No. FCXA-FA-970003-N,
issued by the General Services Administration (GSA), for
non-mandatory, multiple award federal supply schedule (FSS) contracts
encompassing management, organizational and business improvement
services (MOBIS).
We deny the protest.
Non-mandatory, multiple award FSS contracts are indefinite-delivery
contracts under which commercial firms may provide government agencies
with commonly used goods and services for given periods of time.
Government ordering activities can order goods or services under
simplified procedures from the contracts to meet their requirements.
In this case, vendors that responded to this RFP and are awarded a
contract by GSA will be listed on the FSS, and an agency needing MOBIS
may, after making a best value determination, place a task or delivery
order, based on a fixed price, with the selected vendor.
The RFP, issued on April 4, 1997, requested proposals for a contract
period from the date of award through September 30, 2002, with one
5-year option period. The MOBIS contractors are to provide a full
range of services and products for consulting, facilitation, surveys
and training, which will permit the agencies to begin or continue
management, organizational and business improvement efforts with
regard to performance, quality, timeliness and efficiency throughout
their organizations. RFP sec. C.2.1.3, C.2.1.5. The services are to
facilitate agencies' responses to dynamic, evolutionary influences and
mandates, and are intended to enable the agencies to continuously
improve mission performance. RFP sec. C.2.1.5. Examples of the MOBIS
contemplated under the FSS contracts include quality management;
business process reengineering; strategic and business planning;
benchmarking; strategic sourcing; activity-based costing; financial
management analysis related to an improvement effort; statistical
process control; surveys; individual and organizational assessments
and evaluations; process improvements; process modeling and
simulation; performance measurement; organizational design; change
management; development of leadership/management skills; and training
in improving customer service and satisfaction. Id. The RFP
requested prices for five types of MOBIS-related items: (1)
consultation services, (2) facilitation services, (3) survey services,
(4) training services, and (5) support products. RFP sec. C.2.1.6
The RFP provided for multiple awards to responsible offerors whose
technical proposals are determined to be acceptable and whose prices
are considered fair and reasonable. RFP sec. E.5. Section E.5.1 of the
RFP listed the following technical evaluation factors: (1)
Understanding of Requirements, (2) Professional Staff, (3) Relevant
Corporate Experience, and (4) Past Performance. The RFP specified
that the first three factors were to be evaluated on "a 'go or no-go'
basis," RFP sec. E.5, and that for each of these evaluation factor
proposals "must satisfy the requirement completely or they will be
eliminated from further consideration." RFP sec. E.5.1.
The RFP included detailed instructions for the preparation of
proposals, and advised that GSA "may evaluate offers and award a
contract without discussions with offerors." RFP sec. B.2. The RFP
added that because of this "the offeror's initial offer should contain
the offeror's best terms from a price and technical standpoint." Id.
Dual's proposal was rated as "go," or technically acceptable, under
the understanding of requirements and professional staff evaluation
factors, and as "no go," or technically unacceptable, under the
relevant corporate experience evaluation factor. With regard to the
relevant corporate experience evaluation factor, the RFP specified
that in order for a proposal to be evaluated as technically acceptable
it must include "[o]fferor-provided narratives which demonstrate that
the offeror has performed at least three successful MOBIS-related
projects within the last two years." Here, the agency determined that
one of the three projects listed by Dual in its proposal as evidencing
its experience in providing MOBIS, which described Dual's performance
of a contract supporting a cockpit resource management (CRM) program
for the Air National Guard and the Air Force Reserve, was "not
sufficiently MOBIS-related as defined in the [RFP's] statement of
work."
Dual protests that the agency's evaluation of its proposal under the
relevant corporate experience factor was unreasonable. The evaluation
of technical proposals is a matter within the discretion of the
contracting agency since the agency is responsible for defining its
needs and the best method of accommodating them. Marine Animal Prods.
Int'l, Inc., B-247150.2, July 13, 1992, 92-2 CPD para. 16 at 5. In
reviewing an agency's evaluation, we will not reevaluate technical
proposals, but instead will examine the agency's evaluation to ensure
that it was reasonable and consistent with the solicitation's
evaluation criteria. MAR, Inc., B-246889, Apr. 14, 1992, 92-1 CPD para.
367 at 4. An offeror's mere disagreement with the agency does not
render the evaluation unreasonable. McDonnell Douglas Corp.,
B-259694.2, B-259694.3, June 16, 1995, 95-2 CPD para. 51 at 18.
The RFP, at sec. E.3.C, informed offerors that the section of their
proposals responding to the relevant corporate experience evaluation
factor
must include . . . [s]ummary descriptions of MOBIS efforts
undertaken by the offeror and, separately, by each proposed
subcontractor, within the last two years, in federal, state or
local government agencies that are relevant to MOBIS. . . .
Descriptions must include the following:
1.A description of assistance provided to agency or firm.
Show objectives, methodologies, and results. Indicate the
nature of the organization for which the services were
provided, such as: legal, military, medical, finance and
accounting, postal services, personnel management,
specialized manufacturing, education and training, general
support services, procurement, etc.
2.Identify agency or firm, including names and telephone
numbers of the individuals in the agency's or firm's program
office, as well as line managers for whom work was
performed. This information may be used to verify
information provided in the summaries.
The RFP required that each of the three descriptions of the offeror's
MOBIS efforts be no more than two typed, single-spaced pages long, and
emphasized that the descriptions were to "concisely identify the
objectives, methodologies and results obtained throughout the firm's
MOBIS efforts." Id. (emphasis deleted).
The agency found in reviewing Dual's description of its role in the
CRM program that, while the description referred to tasks that
appeared to be MOBIS related, Videotape Transcript (VT) at 10:24:50,
the references were conclusory in nature, in that they failed to
describe specific methodologies employed by Dual to show what was
being changed or improved in the organization. VT at 11:09:20.[1]
The agency also found that the only references to MOBIS-related tasks
in Dual's description of the CRM program were in two sentences of the
total description and that MOBIS-related work seemed to be a
relatively minor part of the program. VT at 10:40:58. The agency
concluded, based upon its review of Dual's proposal, that the CRM
program, and Dual's role in the program, primarily involved training
regarding human interaction within an aircraft cockpit and its effect
on flight safety, rather than, for example, strategic planning or
performance measurement on an organizational level, which would be
MOBIS related. VT at 9:37:33. Because of this, the agency found that
it was, at best, unclear from Dual's proposal whether Dual had
performed sufficient MOBIS-related work with regard to the CRM program
for its proposal to be determined technically acceptable, and decided
to contact the individuals listed in Dual's proposal for the CRM
program. VT at 12:08:39.
The agency contacted each of the three individuals listed by Dual in
this section of its proposal, and was informed that, consistent with
GSA's understanding, the CRM program primarily involved classroom
training regarding, for example, the coordination of the individuals
in an airplane or flight of airplanes and the core concepts that
affect airplane safety, such as stress and fatigue. VT at 12:16:44,
12:18:45, 14:28:19, 14:35:33, 14:36:55, 14:37:12. The agency explains
that, based upon its determination that Dual's experience with the CRM
program, as described in its proposal, was not sufficiently MOBIS
related, and its conversations with the references listed in Dual's
proposal, which in GSA's view verified the accuracy of its initial
determination, it concluded that Dual's proposal did not evidence that
Dual had "performed at least three successful MOBIS-related projects
within the last two years" as required by RFP sec. E.5.1, and was thus
technically unacceptable.
Dual contends that the agency's determination that Dual's proposal is
technically unacceptable was primarily based upon the agency's
misunderstanding of Dual's role in the CRM program. Specifically,
Dual explains that it used a five-step approach in implementing the
training system for the CRM program, VT at 11:19:00, and contends that
the first two steps of this approach constitute MOBIS. VT at
11:20:59. In its comments on the agency report, Dual provides a
lengthy explanation regarding the services it performed during these
first two steps, as well as the relevant delivery orders, which
according to Dual verify that the work it performed during these first
two steps was MOBIS related. Dual also explains that the references
listed in its proposal were unable "to detail the exact nature or
significance of Dual's MOBIS related work" because the references'
participation in the CRM program commenced after Dual had completed
the first two steps of its five-step approach to the CRM program.
In our view, the agency reasonably determined that Dual's proposal was
technically unacceptable. We agree with the agency that the majority
of Dual's narrative concerning the CRM program discusses activities
and characteristics of the program which do not appear to be MOBIS
related. This impression, as indicated above, was confirmed by the
references listed in Dual's proposal. Moreover, as noted by the
agency, the parts of the narrative which mention MOBIS-related work do
not, as requested by the RFP, show the objectives and methodologies
used by Dual in assisting the agencies with the CRM program in any
detail at all, VT at 11:32:44, but instead describe Dual's role in a
conclusory fashion. VT at 11:32:44.
Dual's explanation that it used a five-step approach in implementing
the training system for the CRM program and its detailed description
of the services performed during these first two steps appeared for
the first time in its comments on the agency report. Since an
agency's evaluation is dependent upon the information furnished in a
proposal, it is the offeror's burden to submit an adequately written
proposal for the agency to evaluate, especially where, as here, the
offeror is specifically on notice that the agency intends to make
award based on initial proposals without discussions. Infotec Dev.,
Inc., B-258198 et al., Dec. 27, 1994, 95-1 CPD para. 52 at 6. In light of
Dual's failure to fulfill its obligation in this regard, we see no
basis to find this aspect of the agency's evaluation unreasonable.
Dual complains that the agency failed to ask "probing questions to
elicit information relevant to the MOBIS-related aspects of the CRM
projects" when it spoke with the references listed by Dual for the CRM
program. Post-Hearing Comments at 7. The protester adds that the
agency should have contacted an individual who was not identified
anywhere in Dual's proposal, but was mentioned by the references
during their conversations with the agency. Dual argues that, had
this individual been contacted, he would have been able to explain
that certain of the work performed by Dual for the CRM program was
MOBIS related.
There is no duty imposed upon an agency to ask questions of references
in a particular manner, or to seek out individuals who were not listed
in the relevant offeror's proposal, but were mentioned by the
references contacted. See Basic Tech., Inc., B-214489, July 13, 1984,
84-2 CPD para. 45 at 7. In reviewing the manner and conduct of an agency
in contacting, or choosing not to contact, the references listed by
offerors in their proposals, we look to see if the agency proceeded in
a reasonable and prudent manner. International Bus. Sys., Inc.,
B-275554, Mar. 3, 1997, 97-1 CPD para. 114 at 5.
As indicated above, the agency contacted all three references listed
by Dual in the section of its proposal addressing its role in the CRM
program. Further, when the agency tried to contact one of the
references listed by Dual and was told that the individual listed was
no longer with the CRM program, and was referred to another
individual, the agency contacted that individual. VT at 1:39:59. The
agency states that in questioning the references listed by offerors,
including those listed by Dual, it simply asked the references what
the relevant offeror's role was in the contract identified. VT at
10:26:34. The agency explains that it chose not to ask the references
more specific questions because it was concerned that specific
questions would "prompt" certain answers. VT at 1:45:56. We simply
cannot see how the agency, which contacted each of the references
listed by Dual in its proposal and asked the references what role Dual
had in the CRM program, acted unreasonably.[2]
Dual, a small disadvantaged business concern, argues for the first
time in its comments on the hearing held in connection with this
protest that the agency's rejection of Dual's proposal as technically
unacceptable under the relevant corporate experience evaluation factor
violated the Small Business Act, 15 U.S.C. sec. 637(b)(7)(A) (1994).
This protest contention is untimely and will not be considered.
Our Bid Protest Regulations require that protests not based upon
solicitation improprieties be filed not later than 10 days after the
basis of protest is known, or should have been known, whichever is
earlier. 4 C.F.R. sec. 21.2(a)(2) (1998). Because Dual was aware at the
time it filed its initial protest with our Office that it was a small
disadvantaged business and that its proposal had been rejected as
technically unacceptable under the relevant corporate experience
evaluation factor, its protest that this rejection of its proposal
violated the Small Business Act is untimely. Id.
Dual, while conceding that it did not raise the "legal argument" that
the agency's rejection of its proposal as technically unacceptable
violates the Small Business Act until it filed its comments on the
hearing, nevertheless contends that this argument falls within Dual's
"broad challenge to GSA's technical evaluation" of Dual's proposal.
The timeliness of specific bases of protest raised after the filing of
a timely protest depends upon the relationship the later-raised bases
bear to the initial protest. Vinnell Corp., B-270793, B-270793.2,
Apr. 24, 1996, 96-1 CPD para. 271 at 7. Where the later-raised bases
present new and independent grounds for protest, they must
independently satisfy our timeliness requirements. Conversely, where
the later-raised bases merely provide additional support for an
earlier, timely raised protest basis, we will consider the
later-raised arguments. Id.
Here, Dual's argument regarding the Small Business Act, first raised
in Dual's comments on the hearing, constitutes a new and independent
bases of protest, rather than additional supporting material for its
earlier protest contentions. Specifically, Dual's later-raised
argument that the agency's actions violated the Small Business Act
provides no support for, and is separate and distinct from, its
initial protest contention that the agency's determination that Dual's
proposal was technically unacceptable under the RFP's relevant
corporate experience evaluation factor was unreasonable.
The protest is denied.
Comptroller General
of the United States
1. Citations to the videotape transcript refer to the transcript of
the hearing conducted by our Office in connection with this protest.
2. Because, as explained by Dual and evidenced by the testimony of two
of the references, the references were not familiar with Dual's
claimed performance of MOBIS-related work in the initial phases of the
CRM program, it is unclear how Dual was prejudiced by the agency's
determination not to ask specific questions of the references. That
is, the record reflects that because of their lack of familiarity with
Dual's claimed performance of MOBIS-related work in the initial phases
of the CRM program, the references would have been unable to
substantively answer "probing questions to elicit information relevant
to the MOBIS-related aspects of the CRM projects."