BNUMBER: B-280700
DATE: November 9, 1998
TITLE: Spectrum Sciences & Software, B-280700, November 9, 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:Spectrum Sciences & Software
File: B-280700
Date:November 9, 1998
Hoke Smith, III, Esq., Powell & Strom, for the protester.
Lt. Col. Kevin J. Corcoran, Department of the Air Force, for the
agency.
Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Exclusion of proposal from the competitive range is improper where the
determination to exclude the proposal was based upon an admitted
defective evaluation and it is not possible to determine that the
proposal without the defective evaluation would not have been among
the most highly rated proposals.
DECISION
Spectrum Sciences and Software, Inc. protests the exclusion of its
proposal from the competitive range under request for proposals (RFP)
No. F02604-98-R-0001, a total small business set-aside, issued by the
Department of Air Force, Luke Air Force Base, Arizona, for operation
and maintenance of Gila Bend Air Force Auxiliary Field and Barry M.
Goldwater Range Complex. Spectrum contends that the Air Force
improperly evaluated its proposal, which resulted in its elimination
from the competitive range.
We sustain the protest.
The RFP was issued on February 6, 1998, to obtain operations and
maintenance services under a fixed-price contract for a 12-month base
period with four 12-month options. The services to be performed at
Gila Bend field and Goldwater range complex include range operations,
civil engineering, fire protection, security forces, logistics,
lodging, air traffic control, meteorological, custodial, trash and
refuse collection, environmental engineering, and range maintenance
and communication-electronics. RFP, Performance Work Statement sec. 1.1.
The RFP provided for the award to "be made on the basis of the lowest
evaluated price of proposals meeting or exceeding the acceptability
standards for non-cost factors." RFP sec. M-999(a). Technical
acceptability was to be measured under the following criteria:
Acknowledgement and Understanding of Contract Requirements, Past
Performance History and Experience with Government Contracts of this
Type and Magnitude, Contract Management, Management Plans and
Programs, and Subcontracting Plan. RFP sec. M-16C(a)(i).
Nine proposals, including Spectrum's, were received in response to the
RFP. [DELETED]. A 21-member technical evaluation team (TET)
evaluated the proposals using an adjectival rating scale.[1] The TET
determined the five lowest-priced proposals, including Spectrum's,
were susceptible to being made technically acceptable.[2] Technical
Evaluation Summary at 1-2. The TET also determined that the next
three highest-priced proposals "could have been susceptible to being
made technically acceptable with major proposal revisions," such that
their prices would become even higher, and that the remaining proposal
was unacceptable, and that all of these proposals were outside of the
competitive range. Id. at 2.
Before making a competitive range determination, the Air Force
conducted exchanges with the two [DELETED] offerors, including
Spectrum because they "had a lot of" clarification requests (CR) and
deficiency requests (DR), [DELETED].[3] Id. Each of these offerors
was sent a list of clarification requests (CR) and deficiency requests
(DR) related to their technical proposals. Spectrum received 28 CRs
and 9 DRs. In evaluating these responses, the Air Force determined
that Spectrum answered only 20 of the CRs and 3 of the DRs "well
enough to demonstrate understanding." Id. The agency found:
Manning shortages in the range tracking, security forces and fire
department functions are recurring areas of concern for the Air
Force. In their clarifications, Spectrum maintained the
contention that they were staffed well enough. However, Air
Force technical experts are able to demonstrate where manning is
deficient when they account for scheduled and unscheduled leaves,
travel times to the manned ranges, and protection of aircraft on
the ramp. At no point in the clarifications did the offeror
acknowledge the possible need to increase manning or allude to
the resulting price adjustments an increase would necessitate.
Id.
The record further shows that other areas of concern with regard to
Spectrum's proposal included its staffing for vehicle maintenance and
its trash disposal approach. Contracting Officer's Statement at 2.
Spectrum's proposal was thus determined to be technically unacceptable
and excluded from the competitive range on July 15. Id. at 1. The
[DELETED] proposal was similarly found unacceptable after the
exchanges and excluded from the competitive range. Preliminary
Narration of Contract Action at 6.
The competitive range was comprised of the three remaining proposals,
which had been found susceptible to being made acceptable. The Air
Force sent each of the competitive range offerors a list of CRs and
DRs related to their proposals, and conducted discussions with these
offerors between July 17 and 20. Following discussions and the
receipt of revised proposals, the TET determined each competitive
range proposal to be technically acceptable. Id. 6-7.
Meanwhile, Spectrum requested a pre-award debriefing that was held on
July 22. During the debriefing, the Air Force admitted that several
of the areas of concern with regard to Spectrum's manning (e.g., in
range tracking and vehicle maintenance) in fact met the contract
requirements and that Spectrum's proposal should be considered
acceptable in those areas. Contracting Officer's Statement at 2.
Nevertheless, the Air Force advised that the proposal failed to
address the security requirement to provide a two-member alarm
response team which rendered the proposal unacceptable. The record
evidences that this is the sole remaining reason that Spectrum's
proposal should be considered unacceptable and excluded from the
competitive range. Contracting Officer's Statement at 3-5; Agency
Memorandum of Law at 7-10.
Spectrum protests that the Air Force improperly excluded the proposal
from the competitive range based upon the Air Force's admitted
defective evaluation of its proposal.[4] Spectrum claims that the
remaining evaluated proposal deficiency resulted from a misevaluation
of its security manning and that in any case this was relatively a
minor problem that could be easily addressed in discussions.
FAR sec. 15.306(c) provides that:
Agencies shall evaluate all proposals . . . and, if discussions
are to be conducted, establish the competitive range. Based on
the ratings of each proposal against all evaluation criteria, the
contracting officer shall establish a competitive range comprised
of all the most highly rated proposals, unless the range is
further reduced for purposes of efficiency . . . .
The determination of whether a proposal is in the competitive range is
principally a matter within the reasonable exercise of discretion of
the procuring agency, and in considering an agency's evaluation of
proposals and subsequent competitive range determination we will not
evaluate the proposals anew in order to make our own determination as
to their acceptability or relative merits. However, we will examine
the record to determine whether the agency's evaluation was fair and
reasonable and consistent with the evaluation criteria, and in
particular, consider whether the documentation and analysis supports
the agency's technical conclusions. See Dynalantic Corp., B-274944.2,
Feb. 25, 1997, 97-1 CPD para. 101 at 4.
The record indicates that the agency established the competitive range
on the basis that the three proposals included in the competitive
range were considered the most highly rated proposals and that
Spectrum's proposal was evaluated as unacceptable and therefore not
among the most highly rated proposals. The record shows that at the
time of this evaluation, the TET determined a variety of areas in
Spectrum's proposal that were unacceptable primarily because of
perceived manning shortages. The agency now admits that its
evaluation of Spectrum's proposal that served as the basis for the
competitive range determination was defective because several of
concurrently stated reasons for finding Spectrum's proposal
unacceptable were unsupported, and that only the security aspect of
Spectrum's proposal is now regarded as unacceptable. None of the
proposals included in the competitive range was found to be
technically acceptable, but all were rated susceptible of being made
acceptable (the same rating that was initially assigned to Spectrum's
proposal). Thus, we cannot find from this record that Spectrum would
not have been among the most highly rated proposals on the
procurement, which contemplated award to the low-priced acceptable
offeror. [DELETED].
The Air Force nevertheless argues that the security deficiency
contained in Spectrum's proposal, including its answer during
exchanges, would have required a major revision to the proposal in
order for it to be considered acceptable. Agency's Memorandum of Law
at 5-6. The agency asserts that Spectrum did not recognize or
understand that it was required to provide a two-person external
security response team unit that could respond within 5 minutes to
priority emergencies, as well as a two-person internal alarm response
team dedicated to a restricted area to respond, within 5 minutes, to
alarms or incidents within the restricted area. Contracting Officer's
Statement at 3-4. Spectrum responds that, although it believes that
its proposal was acceptable with regard to the security area, to
address the agency's evaluated security requirements would only have
required an increase of 2 staff personnel to its current 22-member
security force to perform the restricted area security in addition to
the roving external security team, and this cannot reasonably be
considered a major revision or rewrite of its proposal. Protester's
Opposition to the Memorandum of Law at 1-3. Based on our review, it
is not apparent that Spectrum's satisfactory addressing of the
security problem in its proposal required a major revision or
rewrite.[5] In any case, as indicated, we cannot determine on this
record that Spectrum's proposal would not have been among the most
highly rated proposals had it been properly evaluated.
We recommend that the agency make a new competitive range
determination that includes Spectrum's proposal. We also recommend
that Spectrum be reimbursed the cost of filing and pursuing its
protest, including reasonable attorneys' fees. 4 C.F.R. 21.8(d)(1)
(1998). The protester should submit its certified claim for such
costs, detailing the time expended and the costs incurred, directly to
the contracting agency within 60 days of receiving this decision.
The protest is sustained.
Comptroller General
of the United States
1. The possible ratings were acceptable, unacceptable, and susceptible
to being made acceptable.
2. This rating is defined in the technical evaluation plan as follows:
"[f]ails to meet minimum evaluation standards. Deficiencies require
minor revisions to the proposal to be made acceptable."
3. Pursuant to Federal Acquisition Regulation (FAR) sec. 15.306(b) (FAC
97-02), an agency may communicate with offerors, which are defined as
exchanges between the government and offerors, after receipt of
proposals, leading to establishment of the competitive range. These
communications may enhance the government's understanding of the
proposal but may not be used to cure proposal deficiencies or material
omissions, materially alter the technical or cost elements of the
proposal, and/or otherwise revise the proposal. FAR sec. 15.306(b)(2).
4. The agency has withheld performance pending disposition of this
protest.
5. We note that the argument that this deficiency would have required
a major revision to the proposal is one the agency developed to defend
excluding the proposal from the competitive range at the debriefing
and in response to the protest. There is no contemporaneous
evaluation documentation that supports a determination that this
evaluated deficiency in Spectrum's proposal was, in itself, so
significant as to justify Spectrum's elimination from the competitive
range. While we consider the entire record, including statements and
arguments made in response to a protest in determining whether an
agency's procurement action is supportable, we accord greater weight
to contemporaneous source selection materials rather than judgments
made in response to protest contentions. Boeing Sikorsky Aircraft
Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD para. 91 at 15.