TITLE: Interlog, Inc., B-282139, April 27, 1999
BNUMBER: B-282139
DATE: April 27, 1999
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Interlog, Inc., B-282139, April 27, 1999
Decision
Matter of: Interlog, Inc.
File: B-282139
Date: April 27, 1999
James P. Gallatin, Jr., Esq., Richard L. Moorhouse, Esq., and Andrew J.
Hungerman, IV, Esq., Reed Smith Shaw & McClay, for the protester.
John W. Chierichella, Esq., Anne B. Perry, Esq., and Timothy W. Staley,
Esq., Fried, Frank, Harris, Shriver & Jacobson, for Science Applications
International Corporation; and Stuart Young, Esq., for DynCorp Aerospace
Technology, intervenors.
Scott J. Goldsmith, Esq., and Evelyn S. Tang, Esq., Department of Justice,
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
In a negotiated procurement with a stated best value evaluation plan, a
contracting agency reasonably may assign a technically acceptable proposal
fewer than the maximum possible points, and reserve additional points for
proposals that exceed the solicitation's requirements, where such rating is
reasonable and consistent with the evaluation methodology applied to all
proposals.
DECISION
Interlog, Inc. protests the award of contracts to Science Applications
International Corporation (SAIC) and DynCorp Aerospace Technology pursuant
to request for proposals (RFP) No. JPCRM-98-0010, issued by the Department
of Justice for supplies and services to support the Criminal Division's
International Criminal Investigative Training Assistance Program (ICITAP)
and the Office of Overseas Prosecutorial Development, Assistance and
Training (OPDAT). Interlog argues that the agency improperly reserved too
many of the available evaluation points for proposals that exceeded the
solicitation's stated requirements, thus unfairly prejudicing offerors whose
proposals met, but did not exceed, the requirements. In Interlog's view,
this approach led to agency assessments that relied upon unstated evaluation
criteria.
We deny the protest.
The ICITAP program within the Department of Justice provides wide-ranging
civilian law enforcement support in countries accustomed to operating under
totalitarian regimes. RFP amend. 2, sect. C-3.1. The OPDAT program assists
foreign prosecutors and judicial personnel involved in developing and
sustaining democratic criminal justice institutions. Id. sect. C-4.1. Both
programs are funded by the Department of State and the Agency for
International Development, but are operated by the Department of Justice.
Id. sect. C-5. To further the missions of these programs, the RFP anticipates
that the contractor(s) will, among other things, provide training,
consultants, warehousing services, assist in establishing police academies
and infrastructure, and provide construction management and/or facilities
rehabilitation, and conference management. See, e.g., id. sect. C-3.2. In
addition, the RFP advised that since many of the countries in which this
contract will be performed operate in a cash-only economy, "[t]he contractor
may be required to provide large sum cash advances to persons employed under
this contract." Id. sect.sect. C-3.1, C-4.2
The RFP anticipated selection of a contractor or contractors to provide
services for the ICITAP and OPDAT programs under an indefinite-delivery,
indefinite-quantity contract for a 1-year base period, followed by four
1-year options. Id. sect.sect. B-1.A, B-3, Tables at B-5 through B-9. The RFP also
anticipated selection of the proposal presenting the best value to the
government. Id. sect. L-1.F.(1). To measure the technical merit of proposals,
the RFP identified three evaluation factors: technical approach, management
plan, and past performance. Id. sect. M-2.A. Although the RFP stated that these
factors were listed in descending order of importance, it cautioned that the
technical approach factor would be significantly more important than the
other two factors. Id. The RFP also advised that evaluated price (the
contract was priced using estimated labor hours and materials costs combined
with a program management fee) would be slightly less important than the
technical factors. Id. sect. M-1.2A.(2).
After receiving several proposals, performing an initial evaluation,
determining a competitive range comprised of Interlog, SAIC, and DynCorp,
conducting discussions, and receiving and evaluating final revised
proposals, the final scores and evaluated prices were as follows:
Offeror Total Price Technical
Score
DynCorp $80,143,595 92.43
SAIC $82,491,595 98.86
Interlog [deleted] 86.97
Final Award Determination, Feb. 11, 1999, at 3. Noting that Interlog's
proposal had the highest proposed pricing and the lowest technical score,
the contracting officer
selected SAIC and DynCorp for award. This protest followed.
Interlog's protest raises but one issue for our review—whether the
agency's evaluation scheme reserved such a significant portion of available
points for proposals exceeding the stated requirements of the RFP that the
evaluation turned on unstated criteria. To illustrate its contention,
Interlog points to extra credit given the proposals submitted by SAIC and
DynCorp for their approach to delayed billing of the government for
substantial cash advances paid to individuals under the contract. Interlog
complains that, while its proposal was fully compliant with the
solicitation's requirements, it did not know it could receive significant
extra credit for proposing to delay the billing of such amounts to the
government.
When an RFP states a best value evaluation plan—as opposed to
selection of the lowest-priced, technically acceptable
proposal—evaluation of proposals is not limited to determining whether
a proposal is merely technically acceptable; rather, proposals may be
further differentiated to distinguish their relative quality by considering
the degree to which technically acceptable proposals exceed the standard
minimum requirements or will better satisfy the agency's needs. Israel
Aircraft Indus., Ltd., MATA Helicopters Div., B-274389 et al., Dec. 6, 1996,
97-1 CPD para. 41 at 5-6; Meridian Corp., B-246330.3, July 19, 1993, 93-2 CPD para.
29 at 6-7.
Here, as Interlog concedes, the RFP advised potential offerors that the
agency was seeking "high quality, cost effective support services" and that
the evaluation would attempt to identify areas where the proposal was likely
to result in "highly successful implementation and sustained delivery of
high quality services over the life of the proposed contract." RFP amend. 2,
sect. M-1.2.A. Under this evaluation scheme, Interlog could not reasonably
assume that an acceptable proposal would receive the same score as proposals
that exceed the solicitation's minimum requirements. Phoenix Med. Elecs.
Servs., Inc., B-237739, Mar. 21, 1990, 90-1 CPD para. 312 at 6.
With respect to Interlog's contention that too many evaluation points were
reserved for proposals that exceeded the solicitation's requirements, we
disagree. To make judgments about the substantive merit of the proposals,
the evaluators used a rating scale of 0 to 5 points, defined as follows: 0,
very poor/no data; 1, poor; 2, adequate;
3, good; 4, very good; and, 5, excellent. Evaluation Plan, Mar. 6, 1998, at
4-5. A proposal that minimally met the requirements could receive a rating
of adequate; a proposal that fully met the requirements could receive a
rating of good; a proposal that exceeded the minimum requirements, contained
significant strengths, but also contained weaknesses, could receive a rating
of very good; and a proposal that exceeded the minimum requirements and
contained significant strengths, but no weaknesses, could receive a rating
of excellent. Id. at 4. In our view, there is nothing about this evaluation
approach that is unreasonable, or, that, in any way, differs from the
evaluation approach commonly used in best value procurements. See Ebasco
Constructors, Inc. et al., B-244406 et al., Oct. 16, 1991, 91-2 CPD para. 341 at
15-16.
Interlog specifically challenges the agency's decision to give extra credit
to the awardees for their approach to seeking reimbursement from the
government for cash advances. Simply put, Interlog proposed to bill the
government when cash is advanced, while the two awardees proposed to bill
the government upon reconciliation of the underlying expense report. While
Interlog's approach was found to meet the RFP's requirement in this area, it
was given an average evaluation rating of 3.3 (good) in this area, while the
awardees received ratings of 5.0 and 4.7 (excellent/very good) for their
approaches. Technical Evaluation Panel's Final Report, attach. A. According
to Interlog, the issue of whether an offeror proposed to float cash
advances—rather than bill for them immediately—was an unstated
evaluation criterion.
We disagree with Interlog's contention that the solicitation did not provide
notice to offerors that their approach to cash advances would be evaluated.
Section L of the RFP required submission of a Financial Resources Plan
within the technical proposal, wherein offerors were to set forth their
plans to provide and administer the financial resources necessary to perform
this contract, given, among other things, the cash advance payments
involved. RFP amend. 2, sect. L-6.4.1. Section M indicated that the plan would
be evaluated under the technical approach evaluation factor, which was
significantly more important than the management or past performance
factors. Id.
sect. M-2.A.(1). Also, the cash advance issue was highlighted in the "Questions
Received and Government Responses" section of the RFP, wherein offerors were
advised that:
[s]ince it will be necessary for the contractor to expend large sums of
money well in advance of payment in many instances, this issue is relevant
to the success of contract objectives. Hence, the necessity for the
submission and evaluation of this [Financial Resources] plan as a source of
information for the evaluation process.
Id., Questions Received and Government Responses, at 5. Thus, the RFP
clearly put offerors on notice an offeror's approach to cash advances would
be considered in the evaluation of the Financial Resources Plan.[1]
The protest is denied.
Comptroller General
of the United States
Notes
1. In addition, the question of whether cash advances would be billed to the
government when made, or billed later, was expressly raised with Interlog
during discussions. Letter from the Contracting Officer to Interlog attach.
A, Question B (Jan. 10, 1999). Interlog cannot reasonably claim to have been
unaware of the government's interest in whether the offeror intended to
"float" cash advances.