TITLE:   ENMAX Corporation--Modification of Remedy, B-281965.2, July 7, 1999
BNUMBER:  B-281965.2
DATE:  July 7, 1999
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ENMAX Corporation--Modification of Remedy, B-281965.2, July 7, 1999

Matter of: ENMAX Corporation--Modification of Remedy

File: B-281965.2

Date: July 7, 1999

Blake S. Atkin, Esq., Atkin & Lilja, for the protester.

John E. Lariccia, Esq., Michael Mullin, Esq., and Capt. Rex D. Hockaday,
Department of the Air Force, for the agency.

Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protester's request that General Accounting Office modify recommendation in
earlier decision sustaining its protest by replacing recommendation that the
agency reevaluate the awardees's technical proposal to determine whether it
should have been considered acceptable with a directed award to the
protester is denied where the record shows that the agency evaluators might
have reasonably concluded, in accordance with the terms of the solicitation,
that the awardee's proposal was acceptable, and where the circumstances of
the procurement do not support a conclusion that the protester would
necessarily receive the award even if the awardee's proposal were rejected.

DECISION

ENMAX Corporation requests that our Office modify the recommended remedy in
our recent decision sustaining its protest of the award of a contract to
Carlisle Research, Inc. by the Department of the Air Force for engineering
services in support of software development activities at Hill Air Force
Base, Utah. Our prior decision recommended reevaluation of Carlisle's
technical proposal to determine whether it should have been considered
acceptable given the proposal's failure to show experience in certain
computing environments identified under one of the three technical
evaluation factors. ENMAX requests that our Office instead recommend that
the award be made to ENMAX.

We deny ENMAX's request.

In our earlier decision, we agreed with ENMAX's contention that Carlisle's
proposal did not provide information demonstrating 2 or more years of
experience in all [deleted] of the enumerated computing environments
identified under the third technical evaluation factor. As discussed further
below, however, our agreement on this issue did not lead us to conclude that
Carlisle's proposal was technically unacceptable, and had to be rejected. In
addition, even if we had concluded that Carlisle's proposal could not be
accepted as is, directed award to ENMAX is not the appropriate remedy under
the circumstances here.

ENMAX's contention that Carlisle's proposal was technically unacceptable was
ultimately premised on an internal evaluation plan prepared by the Air
Force, rather than on the terms of the RFP. As discussed in our earlier
decision, the Air Force evaluated proposals by converting the many
requirements under each of the RFP's three evaluation factors into separate
checklist items, which were graded on a pass/fail basis. ENMAX Corp.,
B-281965, May 12, 1999, 99-1 CPD para. ___ at 2, 5. With regard to ENMAX's
contentions about the meaning of this checklist, our decision stated
unambiguously that evaluation plans are internal agency instructions and as
such do not provide outside parties with any rights. Further, regardless of
the terms of any evaluation plan it may devise, an agency is required to
follow the evaluation scheme set forth in the RFP. Mandex, Inc.; Tero Tek
Int'l, Inc., B-241759 et al., Mar. 5, 1991, 91-1 CPD para. 244 at 7. Our
analysis then turned to the language of the RFP, not the evaluation
checklist items.

The RFP required offerors to "receive a ‘pass' evaluation on all three
[evaluation] factors . . . [to] be eligible for award." RFP amend. 0002,
sect. M.B.2. While the RFP did not specify that failure to meet any one of the
technical areas under an evaluation factor would result in a finding of
technical unacceptability under the factor overall, it did require offerors
to "ensure that each and every area of each factor has been addressed." Id.
Since there was no evidence in the record that the evaluators considered
whether Carlisle's failure to demonstrate all of the specified experience
made its proposal technically unacceptable under the third evaluation
factor, we sustained ENMAX's protest, and recommended that the agency
reevaluate the proposal and consider this issue.

In its request that we modify our recommended remedy, ENMAX argues that the
Air Force cannot award the contract to Carlisle without changing its
evaluation plan, and contends that only one result is possible under that
plan--that Carlisle must be found technically unacceptable. According to
ENMAX, the checklist is evidence of what the agency intended by its RFP, and
evidence of what the evaluators would have concluded had they expressly
considered Carlisle's failure to show experience with all [deleted] of the
computing environments identified under the third evaluation factor. As in
its initial protest, ENMAX continues to rely upon the Air Force's internal
evaluation plan to support its argument; as before, ENMAX is wrong about the
meaning of such plans.

As a preliminary matter, we became aware during the course of our earlier
review that the internal checklist used by the Air Force evaluators appears
to change the meaning of this solicitation in subtle but significant ways.
For example, the evaluation factor at issue here stated, among many other
things, that "[t]he Government will evaluate experience of offeror (2 plus
years) in client/server development in ORACLE, UNIX, NT, and Powerbuilder
environments. . . ." RFP amend. 0002, sect. M.B.2. However, in the internal
checklist used by the evaluators, this requirement was set forth
separately--rather than as part of a list of requirements, as in the
RFP--graded on a pass/fail basis, and restated as follows:

Demonstrated experience (2 plus years) in client/server development in
ORACLE, UNIX, NT, and Powerbuilder environments.

Evaluation Plan for Engineering Services Support, Oct. 15, 1998, attach. 1.
Evaluating such experience, along with several other requirements under the
RFP's evaluation factor, is very different from grading on a pass/fail basis
an offeror's "demonstrated" experience in A, B, C, and D, as under the
internal checklist.

Nonetheless, even assuming that the evaluation plan reflected the
evaluators' intended approach, their intent cannot override the terms of the
solicitation. Solicitations provide all potential offerors with a uniform
roadmap to the agency's needs, and uniform directions about the best method
for preparing a successful offer to meet those needs. Allowing agency
intentions or internal evaluation plans to alter the terms of solicitations
is unfair to potential offerors who seek an opportunity to do business with
the government. [1] In short, solicitations are, and must be, the touchstone
for whether offerors have been treated fairly in an evaluation--not internal
documents, or agency intentions. In this case, since the RFP
itself--regardless of the terms of the evaluation plan--did not specify that
failure to meet any one of the technical areas under an evaluation factor
would result in a finding of technical unacceptability under the factor
overall, there was no basis to conclude that Carlisle's proposal necessarily
would have been found technically unacceptable due to Carlisle's failure to
demonstrate all of the experience called for under the third evaluation
factor.

As a final matter, we note that ENMAX is not correct in its belief that it
would be in line for award if the Carlisle proposal were deemed technically
unacceptable. The RFP's evaluation scheme advised that award would be made
using a performance/price tradeoff which "permits tradeoffs between
price/cost and the past performance evaluation for technically acceptable
proposals." RFP amend. 0002, sect. M.A.8. Our review of the record shows that
there were other technically acceptable offerors, with past performance risk
ratings of [deleted], and with prices [deleted]. Memo for Record, Feb. 10,
1999, at 1-2. Thus, even if Carlisle's proposal is rejected, the agency will
have to perform a performance/price tradeoff, as anticipated by the RFP,
before it may properly select an awardee, whether ENMAX or another firm. In
addition, we have no basis to assume that the agency might not have elected
to conduct discussions with all offerors, and thus provide Carlisle a second
opportunity to furnish information about its experience in the questioned
areas. Had the agency adopted this course of action, there is no reason to
assume that ENMAX would have prevailed at the conclusion of the competition.
See Ogden Gov't Servs.--Protest and Request for Modification of Remedy; Tate
Facilities Servs., Inc.--Protest, B-253350 et al., Apr. 4, 1994, 94-1 CPD para.
226 at 4. Accordingly, we reject ENMAX's assertion that it should
automatically receive award.

The request for modification of remedy is denied.

Comptroller General
of the United States

Notes

1. Our earlier decision assumed that the principle that internal evaluation
documents do not provide parties with any rights was sufficiently well
established to not require further discussion. In its request for
modification, ENMAX attempts to distinguish one of the cases we cited,
Mandex, Inc.; Tero Tek Int'l, Inc., supra, from the situation here by
suggesting that the outcome in the Mandex decision was influenced by the
fact that our Office "determined that the deviation from the evaluation
plan, that occurred before any protest, would not have resulted in a
different outcome." ENMAX Request for Modification of Remedy, May 21, 1999,
at 1 (citing Mandex, supra, at 8 and n.3). In fact, the portion of the
Mandex decision ENMAX highlights focuses on a deviation from the RFP--i.e.,
the failure of the agency to use a team of evaluators to review best and
final offers, and instead using only the evaluation chairman to conduct the
final review. It was as to this deviation from the RFP--not from the
evaluation plan--that our Office concluded that the protester was not harmed
by the agency's action. Mandex, supra, at 8. Thus, there is no basis to
distinguish the instant protest from the principle stated in Mandex that
deviations from evaluation plans alone do not provide a basis for protest.