TITLE: North State Resources, Inc., B-282140, June 7, 1999
BNUMBER: B-282140
DATE: June 7, 1999
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North State Resources, Inc., B-282140, June 7, 1999
Decision
Matter of: North State Resources, Inc.
File: B-282140
Date: June 7, 1999
Jefferey J. Swanson, Esq., for the protester.
William L. Henson, Esq., and Daniel J. Dykstra, Jr., Esq., U.S. Army Corps
of Engineers, for the agency.
Andrew T. Pogany, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest against price evaluation which was limited to evaluation of an
undisclosed hypothetical task order based on line item prices furnished by
offerors, without agency obtaining technical input from the offerors, is
untimely where price evaluation methodology was clear on face of
solicitation, and protester did not file its protest prior to closing time
for receipt of initial proposals.
2. Failure of individual evaluators to comment upon proposals under each
evaluation factor in evaluation worksheets does not render evaluation
flawed--there is no general requirement for such all-inclusive
comments--particularly where consensus evaluation sheet contained references
to proposal advantages and disadvantages, as well as consensus scores.
3. Where solicitation contemplated award of service contract to a firm
qualifying under section 8(a) of the Small Business Act, and included the
provision at Federal Acquisition Regulation sect. 52.219-14 concerning
limitation on subcontracting, agency properly limited its consideration to
the offeror?s experience as prime contractor.
DECISION
North State Resources, Inc. (NSR) protests the award of a contract to Dean
Ryan Consultants & Designers, Inc. under request for proposals (RFP) No.
DACW05-98-R-0013, issued by the U.S. Army Corps of Engineers for
environmental studies, evaluations and consulting work for portions of eight
western states. NSR principally asserts that the agency misevaluated
proposals.
We deny the protest.
The RFP contemplated the award of a fixed-price indefinite-delivery,
indefinite-quantity contract under the section 8(a) (small disadvantaged
business) program, for a base year, with 4 option years, to the responsible
firm whose proposal was determined to be most advantageous to the
government. RFP sect. 4, at M-3. [1] The evaluation was to be based on the
following major evaluation factors, together with price: (1) past
performance on completed projects; (2) technical capabilities of key
personnel; (3) organizational experience and approach; and (4) small,
small-disadvantaged, women-owned, minority business partnership compliance.
RFP sect. 8, at M-4 to M-8. The non-price factors together were weighted equally
with price. RFP sect. 4, at M-3.
Concerning price, the RFP stated that the hourly rates, other direct costs,
and escalation factors would be evaluated "as a whole, hypothetical task
order [HTO], to reflect the actual mix of hours, other direct costs and
escalation factors anticipated during the life of the contract." RFP sect. 5, at
M-3. The HTO was not disclosed in the RFP. Finally, the RFP stated that the
agency would use cost or price analysis to evaluate price not only to
determine whether the price was reasonable, but also to determine the
offeror?s understanding of the work and ability to perform the contract. RFP
sect. 5, at M-3. The RFP also stated that it was possible that an award would be
made after receipt of proposals, without further negotiations; therefore, it
was important that all proposals be submitted initially on the most
favorable terms. RFP sect. 4, at M-3.
Four offers were received from 8(a) firms. Evaluation of these offers was
performed by an agency source selection evaluation board (SSEB). The
individual members of the SSEB reviewed each proposal; the SSEB then
discussed the proposals relative to each factor, and reached a consensus
(not an average) on each proposal?s technical score, strengths and
weaknesses. The SSEB?s overall ratings were as follows:
Technical Overall Price (based on
Score (300 Determination of hypothetical task
Offeror Maximum) Technical Ability order) [2]
NSR 246.3 (82.0%) Very Good [deleted]
Ryan 240.1 (80.0%) Very Good 17,152
Offeror A 226.0 (75.3%) Satisfactory [deleted]
Offeror B Not Scored Unsatisfactory N/A
SSEB Report at 1; SSEB Best Value Comparative Analysis, Jan. 27, 1999.
The SSEB found that NSR?s proposal presented a strong team with considerable
depth of experience. The team was especially strong with regard to cultural
resources, and appeared to have good experience working in the Central
Valley of California and the Sacramento/San Joaquin River Delta. There also
was a strong National Environmental Policy Act (NEPA) capability as well as
experience working with federal agencies, including the military. On the
other hand, NSR appeared weak in the area of Environmental Impact Statement
(EIS) preparation, fish and wildlife mitigation/restoration, and threatened
and endangered (T&E) species issues in the Delta and Central Valley. The
SSEB estimated that about 60 percent of the work would be accomplished by
[deleted], and found that the division of labor and [deleted] controls were
not clear. [3] SSEB Report at 2.
The SSEB found that Ryan?s proposal demonstrated its ability to perform the
types of work described in the solicitation. In particular, the firm had
successfully performed both military and civil work directly relevant to the
work required by the solicitation. The team had excellent cultural resources
capability, was well located geographically and had sufficient depth to
perform the tasks required. However, the SSEB also found that the proposal
did not adequately demonstrate that the firm had completed long-term complex
projects, especially in the Central Valley of California and the
Sacramento/San Joaquin River Delta. Id.
The SSEB found the three top proposals, with evaluation scores within a
20-point range, to be essentially equivalent in terms of capabilities. The
SSEB performed a best value comparative tradeoff based on the technical
factors and price, and concluded that the technical benefits of NSR?s
proposal were too minimal to warrant paying NSR?s higher price. [4] Best
Value Comparative Analysis. The SSEB thus recommended award to Ryan, and the
source selection official adopted this recommendation. SSEB Report at 3;
SSEB Best Value Comparative Analysis, Jan. 27, 1999.
NSR challenges the evaluation on numerous grounds. We have reviewed all of
NSR?s arguments and, based on our assessment of the record, find that they
are without merit. We address NSR?s principal arguments below.
PRICE EVALUATION
NSR argues that the agency failed to evaluate price in the manner described
in the solicitation. Specifically, the protester asserts that the HTO
approach was improperly applied because the agency permitted offerors to
submit only hourly rates and other such financial information, without
providing offerors an opportunity for their own technical input into the HTO
through discussions.
Our Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (1998), require that
protests based on alleged improprieties apparent on the face of an RFP be
filed not later than the time set for receipt of initial proposals. As
indicated above, the RFP stated that price information would be evaluated
"as a whole, [HTO], to reflect the actual mix of hours, other direct costs
and escalation factors anticipated during the life of the contract," RFP sect.
5, at M-3, and that award may be made without discussions. RFP sect. 4, at M-3.
The RFP did not disclose the HTO, and did not contain a provision permitting
firms to offer any technical input into the formulation or evaluation of the
HTO itself. Therefore, to the extent that NSR believed it should have been
given an opportunity to provide input into the HTO used in the price
evaluation, or to engage in discussions with regard to this aspect of its
proposal, it was required to protest on this basis prior to the closing time
for receipt of initial proposals. Because NSR did not protest until after
award, this aspect of the protest is untimely and will not be considered.
In its comments on the agency?s report, NSR advances additional arguments
concerning the propriety of the price evaluation. Specifically, it asserts
that, although the RFP stated that the agency would use the price analysis
to determine the offeror?s understanding of the work and the ability to
perform the contract, the agency failed to do so; the agency improperly used
the SSEB to evaluate offerors? technical and price proposals; and the agency
evaluated and extrapolated the HTO beyond its proper scope. Protester?s
Comments at 20-22. Under our Regulations, 4 C.F.R. sect. 21.2(a)(2), protests
other than those based on alleged solicitation improprieties must be filed
within 10 days after the basis of protest is known or should have been
known. The protester knew these bases of protest no later than the time it
received the agency?s report. However, its comments containing these
additional protest allegations were filed more than 10 days after its
receipt of that report (due to a filing extension granted by our Office at
NSR?s request). Therefore, these arguments also are untimely. See Dial Page,
Inc., B-256210, May 16, 1994, 94-1 CPD para. 311 at 5. [5]
WEIGHTINGS OF EVALUATION FACTORS
NSR argues that the agency failed to weigh the technical and cost factors in
the manner described in the solicitation. Specifically, according to the
protester, the evaluation performed failed to produce a sufficient spread in
the technical proposal scores to justify a simple side-by-side comparison
with the cost evaluation. Rather, NSR asserts, the closeness of the scores
shows that the agency failed to conduct a meaningful technical evaluation
that could be used to discriminate among the offers. As a result, the
protester maintains, price was accorded inordinate weight in the award
decision. Protest at 2.
This argument is without merit. The record shows that the SSEB evaluated
proposals and prepared individual and consensus evaluation records to
document its findings. This resulted in one proposal being eliminated, one
found satisfactory, and two found very good. There is nothing unusual or
improper in these rankings or findings. The mere fact that two proposals
were rated essentially equal does not constitute evidence that the agency
somehow improperly failed to discriminate among proposals; rather, absent a
showing of some specific impropriety in the evaluation, it simply means that
two of the proposals submitted were perceived to have similar merit.
NSR?s argument is heavily based on the fact that the evaluation sheets
completed by the SSEB members show that not all items of information which
the RFP, under each criterion in section M, requested offerors to address
were evaluated by each of the evaluators. However, there simply is no
requirement that all individual evaluators comment upon each such item of
information or write about it in their worksheets. The record shows that the
agency?s evaluation methodology provided a legitimate basis for the SSEB?s
recommendation to the source selection official. Specifically, all
evaluators prepared an "Evaluation Sheet" for each factor relating to each
proposal, which contained notes by the evalulator, including advantages and
disadvantages, and their tentative score for the factor involved. Each
evaluator then prepared a "Summary Evaluation Worksheet" compiling his or
her summary of ratings and points for all of the factors reviewed for each
proposal. These were then compiled by the SSEB chairperson into the
"Consensus Sheet" for each factor, which contained references to advantages
and disadvantages for each factor involving each proposal, as well as the
consensus score for that factor. Thus, while the protester gives examples as
to where the evaluators could have commented more extensively, [6] this is
not a valid basis for questioning the evaluation.
UNDISCLOSED EVALUATION CRITERIA
NSR argues that the agency improperly applied evaluation criteria that were
not disclosed in the solicitation and were not bona fide bases for
distinguishing between the offers. Specifically, NSR states that the agency
found NSR weak in certain areas (i.e., EIS, fish and wildlife mitigation and
"T&E" species in the Delta and Central Valley), without crediting the firm
for the capabilities of [deleted] in these areas. Protest at 3. NSR notes
that the RFP did not state that the experience of the [deleted] would be
evaluated separately and distinct from other members of the [deleted] team.
Where a solicitation contemplates the evaluation of offerors? past
performance, the agency has discretion to determine the scope of the
offerors? performance history to be considered, provided all proposals are
evaluated on the same basis and the evaluation is consistent with the terms
of the RFP. USATREX Int?l, Inc., B-275592, B-275592.2, Mar. 6, 1997, 98-l
CPD para. 99 at 3. While agencies may consider the prior relevant experience of
subcontractors in the absence of a solicitation provision to the contrary,
there is no broad requirement that they do so. Jim Welch Co., Inc.,
B-233925.2, July 12, 1989, 89-2 CPD para. 34 at 3-4.
We have held that an agency need not consider subcontractor experience where
the solicitation contemplates award of a service contract to a section 8(a)
firm, and includes the provision at Federal Acquisition Regulation (FAR) sect.
52.219-14, which imposes a limitation on subcontracting to an amount less
than 50 percent of the cost of contract performance. USATREX Int?l, Inc.
supra at 4. In such cases, the agency properly may determine that only the
offeror?s own capabilities are relevant for purposes of discriminating among
the proposals. Since the RFP here provided for award of a service contract
and contained the cited FAR provision, we think it properly could limit its
evaluation to the prime contractor?s capabilities.
In any case, the agency in fact did not ignore [deleted] in evaluating NSR?s
proposal. The evaluation record contains numerous examples, both in the
consensus sheets and the individual member evaluation sheets, where use of
[deleted] was viewed as an advantage by the evaluators. For example, the
evaluation consensus sheet states
that "[deleted]." The individual evaluators also noted the strengths of
[deleted], and considered the firm a [deleted]. We conclude that there is no
basis for questioning this aspect of the evaluation.
The protest is denied.
Comptroller General
of the United States
Notes
1. Another contract was to be awarded to a large business. That award is not
relevant here.
2. The price figure represented one HTO per year for a period of 5 years.
NSR?s evaluated price of [deleted] was [deleted] higher than Ryan?s of
$17,152. For each contract year, this proportional difference was calculated
to represent an estimated [deleted] for the base year and 4 option years.
SSEB Best Value Comparative Analysis, Jan. 27, 1999.
3. The SSEB noted that, while NSR?s (and Offeror A?s) proposing of
[deleted], it also seemed to defeat the purpose of [deleted]. However, and
notwithstanding the SSEB?s estimate that, under NSR?s proposal, [deleted]
would be [deleted], the SSEB specifically stated that it did "not
specifically deduct points from these offerors [deleted] but [did] want to
express [its] consensus opinion." SSEB Report at 3.
4. Offeror A?s proposal was eliminated because there was a competing offer
with a higher technical score at a lower price. Best Value Comparative
Analysis, Jan. 27, 1999.
5. The protester also argues that Ryan did not have the appropriate standard
industrial classification (SIC) code in its Small Business Administration
(SBA)-approved business plan, as required by the solicitation. We do not
generally consider issues of size status of a particular firm, which are
reviewed solely by the SBA. 4 C.F.R. sect. 21.5(b). To the extent that the
protester is alleging that Ryan misrepresented its qualifications under a
specific SIC code, this protest ground is untimely for the reasons mentioned
above.
6. As an example, the protester argues, Protester?s Comments at 7, that the
following portion of the consensus sheet was defective for failure to
perform a proper comparative assessment of the proposals:
Ryan: Advantages --excellent cultural resources capability
--good Mojave Desert experience
--sufficient Dean Ryan staff to complete work.
Disadvantages --limited experience in Central Valley/Delta
Questions: none
Score : Very Good
NSR: Advantages --excellent cultural resources capability.
--[deleted] has very good technical capabilities
--strong NEPA capability
Disadvantages--weak in flood control EIS [environmental impact statement]
preparation, [Fish and Wildlife] mitigation/restoration, T&E in Delta and
Central Valley.
--[deleted]
Questions: none
Score: Satisfactory
Consensus Sheets, Factor 2.
Contrary to the protester?s assertions, these evaluation findings are
typical of evaluation findings employed by agencies to discriminate among
proposals. They in no way evidence an impropriety in the evaluation process.