BNUMBER: B-281393
DATE: February 1, 1999
TITLE: Deva & Associates, P.C., B-281393, February 1, 1999
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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:Deva & Associates, P.C.
File:B-281393
Date:February 1, 1999
John E. Jensen, Esq., Shaw Pittman Potts & Trowbridge, for the
protester.
James S. Phillips, Esq., and James S. DelSordo, Esq., Kinosky,
Phillips & Lieberman, for Tessada & Associates, Inc., an intervenor.
John F. Ruoff, Esq., Defense Finance and Accounting Service, for the
agency.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest that awardee should not have received favorable past
performance rating because it is not an accounting firm is denied
where solicitation provided that past performance evaluation would be
based on offeror's performance of similar services, and did not refer
to status as accounting firm.
2. Protest that agency's failure to consider references precluded it
from properly evaluating past performance is denied where solicitation
required offerors to furnish detailed past performance information and
provided only that references may be contacted; information required
by solicitation provided sufficient basis for past performance
evaluation.
3. Protest that awardee's technical score should have been lowered
based on the awardee's low proposed wage rates for accountants and its
low overall price is denied where agency reasonably concluded that
awardee's rates were not substantially different from rates offered by
other competitive range offerors, and price would be adequate to cover
costs of performance.
4. Protest that agency did not consider protester's superior past
performance rating in performing price/technical tradeoff is denied
where record shows that in performing the tradeoff the agency was
aware of the past performance and technical ratings, as well as the
proposed prices of all offerors.
DECISION
Deva & Associates, P.C. protests the award of a contract to Tessada &
Associates, Inc. under request for proposals (RFP) No.
MDA220-98-R-0005, issued by the Defense Finance and Accounting Service
(DFAS) for contract reconciliation and special studies services. Deva
argues that DFAS improperly evaluated past performance, failed to
adequately assess the risk involved in awarding a contract to Tessada,
and performed an improper price/technical tradeoff.
We deny the protest.
The solicitation was issued on February 17, 1998 for contract
reconciliation and special studies services, including identifying and
correcting out-of-balance conditions in contract payment and
accounting records and systems; identifying and correcting unmatched
disbursements and negative unliquidated obligations; performing tasks
to support contract close-out requirements; and identifying and
correcting problems with outstanding or remaining unliquidated
obligations. RFP sec. C.1.1. The solicitation contemplated the
award of an indefinite-delivery, indefinite-quantity contract, and
provided that proposals would be evaluated against (in descending
order of importance) technical, past performance and price factors.[1]
RFP sec. M.
DFAS received nine proposals and, following the initial evaluation,
selected four, including Tessada's and Deva's, to be included in the
competitive range. After final proposal revisions were evaluated,
Tessada's proposal was rated "better" under the technical factor and
satisfactory under past performance, while Deva's was rated "better"
under both factors. Contracting Officer's Statement at 6. However,
Tessada's offered price ($7,667,551.37) was the lowest received, and
Deva's ([DELETED]) the highest, id., and the agency determined that
Tessada's proposal represented the best value to the government based
on its low price. Technical Evaluation Report at 1; Post Negotiation
Business Clearance Memorandum at 8.
PAST PERFORMANCE
Deva protests that the agency improperly evaluated the proposals under
the past performance factor. First, Deva argues that because Tessada
is not an accounting firm, it should not have received a favorable
past performance rating.[2] This argument is without merit. The
solicitation neither required that offerors be accounting firms, nor
provided that the past performance evaluation would take into
consideration whether an offeror was an accounting firm. Rather,
offerors were to submit detailed performance information on directly
related or similar contracts, that is, information regarding contracts
for reconciliation and special study work. RFP sec. L.4(c). It thus was
evident from the RFP that the past performance evaluation was to focus
on offerors' performance of the type of services under the contract.
Consequently, the fact that Tessada is not an accounting firm does not
provide a basis for questioning Tessada's past performance rating.[3]
Deva also argues that DFAS did not evaluate the quality of Deva's and
Tessada's past performance, as required by the solicitation.
Specifically, Deva asserts that the agency did not contact the
references provided by Deva, and received information from only one of
Tessada's references. Deva concludes that the agency had no basis on
which to evaluate the quality of the offeror's past performance.
Procuring agencies are required to evaluate proposals in accordance
with the evaluation criteria listed in the solicitation. 10 U.S.C. sec.
2305(b)(1) (1994); Federal Acquisition Regulation (FAR) sec. 15.304(d).
Here, the solicitation stated that the government would evaluate the
quality of the offerors' past performance. RFP sec. M.7(b). It did not
state, however, that the quality of past performance would be
evaluated through information obtained from references provided in the
proposals. Rather, the solicitation stated only that the government
might obtain information from sources to aid in its past performance
evaluation. RFP sec. M.7(c). At the same time, the solicitation, at
section L.4(c), specifically required offerors to provide detailed
information concerning their performance of prior contracts, including
the following:
A. Contract number(s) and type of contract;
B. Procuring agency and name of reference point(s) of contact .
. .;
C. Dollar value of the Contract;
D. Period of Performance;
E. Detailed description of the work performed;
F. Relevancy of the contract to this proposed requirement;
G. Clear statements describing whether the contract was
completed on time, with a quality product conforming to the
contract, without any degradation in performance or customer
satisfaction. Discuss any cost growth if the contract was not
completed for the original contract amount; and
H. The number, type, frequency, duration and impact of any
quality, delivery or cost problems in performing the contract, the
corrective action taken, if any, and the effectiveness of the
corrective action.
This information, although obtained directly from the offerors,
clearly was sufficient to allow DFAS to evaluate the quality of
offerors' past performance, as required by the RFP. Deva has not
challenged the conclusions reached by the agency in the past
performance evaluation, and we see no basis to question the
reasonableness of the evaluation.
RISK ASSESSMENT
The RFP provided that an offeror's technical score could be reduced
where its proposed price was too low, or not consistent with its
technical proposal, so as to raise concern about the offeror's ability
to provide quality services and personnel at the price proposed over
the life of the contract. RFP sec. M.5. Deva argues that Tessada's
proposal should have been downgraded under this provision because its
overall contract price and proposed wage rates are too low. Deva
notes in this regard that its proposed price was based on several
labor surveys and is approximately [DELETED] higher than Tessada's.
Deva further asserts that these surveys show that Tessada's proposed
salary for accountants is below the national average. In this regard,
Tessada's proposed hourly direct labor rate for accountants
([DELETED]) is below Deva's ([DELETED]), as is its contract rate for
accountants ([DELETED] versus Deva's [DELETED]). Final Revision Cost
Spreadsheet at 1.
DFAS responds that the contracting officer found that Tessada's
offered price was comparable to other competitive range proposals and
that its rates were comparable to Deva's, Legal Memorandum at 11, and
also determined that Tessada's rates correlated to the key personnel
ratings and that its proposed price was adequate to cover the labor
costs necessary to perform the contract. Contracting Officer's
Statement at 11. The agency therefore did not downgrade Tessada's
proposal for performance risk.
The evaluation of Tessada's proposal in this area was reasonable.
First, the total proposed prices of the four proposals included in the
competitive range were initially $7.9 million (Tessada), $7.9 million
(ASI), $7.7 million (fourth offeror), and [DELETED]. Contracting
Officer's Statement at 5. In the final proposals, these prices were
revised to $7.6 million (Tessada), $7.6 million (fourth offeror), $8.6
million (ASI), and [DELETED] (Deva). Id. at 6. With respect to the
direct labor rates for the accountant labor category, Tessada proposed
an hourly rate of [DELETED] compared to Deva's [DELETED]. Price
Comparison Chart, Sheet 5. Tessada's loaded rate was [DELETED],
compared to [DELETED] for Deva, [DELETED], for ASI, and [DELETED] for
the fourth offeror. Final Revision Cost Spreadsheet at 1. Based on
these numbers, Tessada's proposed accountant wage rate and total price
clearly were not out of line with the competitive range proposals
taken as a whole. With regard to the surveys Deva cites, as the
agency points out, these surveys represent average salaries, while the
salaries paid by any particular employer may vary greatly, depending
on such factors as the size of the business, accounting functional
areas, and geographical factors. Supplemental Agency Statement at 7.
The agency further points out, moreover, that Tessada's proposed
accountant wage rate actually is within the margin of error for one
survey and is not comparable to the rate used in the second survey,
[DELETED]. Id. We conclude that there simply is no basis to question
the agency's determination that Tessada's proposal did not carry with
it any particular performance risk.
PRICE/TECHNICAL TRADEOFF
Deva maintains that the tradeoff is flawed because it did not take
into account Deva's superior past performance. This argument is
without merit. While the source selection official did not discuss
Deva's superior past performance rating in detail when he agreed that
the proposal submitted by Tessada offered the best value to the
government, it is clear from the procurement record that the agency
was fully aware that Deva's past performance was rated as superior to
Tessada's when it made the decision. In this regard, the technical
evaluation panel recommended to the contracting officer that Tessada
be selected for award. In the recommendation, the panel specifically
lists the ratings of each of the offerors for the technical and past
performance factors, as well as their costs. Technical Evaluation
Report at 1-2. The panel then states:
Tessada is recommended for award. The overall Technical Proposal
rating of "Better", Past Performance rating of "Satisfactory",
and Price (@ [DELETED] lower than ASI, @ [DELETED] lower than
DEVA, and @ [DELETED] lower than [fourth offeror]) for Tessada
were considered in making a best value determination. The price
premiums for ASI and DEVA were considered while the overall
technical rating for ASI, DEVA, and Tessada were "Better." A
price premium is not justified.
In selecting Tessada, the contracting officer reviewed the evaluators'
recommendation, and expressly adopted it. Post Negotiation Business
Clearance Memorandum at 8. Since the agency determined that Tessada's
lower proposed price more than offset Deva's past performance
advantage, the tradeoff decision was proper.
The protest is denied.
Comptroller General
of the United States
1. The technical proposals were to be adjectivally rated as
outstanding, better, acceptable, marginal or unacceptable. RFP sec.
M.2(b), M.3(c). The past performance proposals were to be
adjectivally rated as neutral, outstanding, better, satisfactory or
marginal. RFP sec. M.3(c), M.7(d).
2. Deva also challenges the evaluation of the proposal of ASI, which
the agency ranked as next in line for award after Tessada. Because we
find that the award to Tessada was proper, we need not consider that
aspect of the protest.
3. Deva also generally asserts that DFAS did not properly evaluate the
relevance of Tessada's past performance. Deva does not explain the
basis for this conclusory assertion, and such a general statement is
not sufficient to constitute a basis of protest. Ogden Support
Servs., Inc.--Recon., B-270354.3, June 11, 1997, 97-1 CPD para. 212 at 2.