TITLE:  G&N, L.L.C., B-285118; B-285118.2; B-285118.3, July 19, 2000
BNUMBER:  B-285118; B-285118.2; B-285118.3
DATE:  July 19, 2000
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Decision

Matter of: G&N, L.L.C.

File: B-285118; B-285118.2; B-285118.3

Date: July 19, 2000

Albert B. Krachman, Esq., and Charles S. McNeish, Esq., Bracewell &
Patterson, for the protester.

William A. Roberts, III, Esq., and William Lieth, Esq., Wiley, Rein &
Fielding, for BMAR & Associates, Inc., an intervenor.

Larry E. Beall, Esq., U.S. Army Corps of Engineers, for the agency.

Christina Sklarew, Esq., and Paul I. Lieberman, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Where solicitation provides that technical proposals will receive highest
possible score for fully satisfying the characteristics required in the
solicitation and does not provide that additional credit will be given for
exceeding the requirements, agency was not required to give additional
evaluation credit to a proposal that may have exceeded the solicitation
requirements.

2. Protest that evaluation of technical proposals was unreasonable because
it was inadequately documented is denied where the evaluation record, as
clarified by narrative explanations provided by the agency, presents
sufficient detail to assess the reasonableness of the conclusion that
awardee's and protester's proposals were technically equivalent.

DECISION

G&N, L.L.C. protests the award of a contract to BMAR & Associates, Inc.
under request for proposals (RFP) No. DACA01-99-R-0049 issued by the Army
Corps of Engineers for preventive maintenance and equipment inventory at
healthcare facilities for the U.S. Medical Command (MEDCOM). G&N challenges
the award on numerous grounds, primarily alleging that the Corps improperly
evaluated proposals in a manner that was inconsistent with the RFP
evaluation criteria and inadequately documented, and that the Corps accorded
preferential treatment to the incumbent during the evaluation process by
conducting prejudicially unequal discussions.

We deny the protest.

The RFP, issued on June 1, 1999 as a total small business set-aside,
contemplated the award of an indefinite-delivery, indefinite-quantity
contract against which task orders for preventive maintenance and inventory
(PMI) and operation and maintenance (O&M) of various MEDCOM facilities will
be placed. The contract was to be awarded for a base period of 1 year, with
four 1-year renewal options to the responsible offeror whose proposal was
determined to be most advantageous to the government. RFP sect. M-13.

Section M of the RFP established the following evaluation factors and
subfactors:

I. Technical

Experience and capabilities

Technical approach

Technical management

Quality control

II. Management

Corporate Experience

Personnel Qualifications

Organization

Response Time Strategy

III. Price

Reasonableness

Realism

Completeness

RFP sect. M-10.

Section M-10 of the RFP further provided that technical and management areas
would be evaluated and scored for quality, and that the technical area would
be significantly more important than management and price. Notwithstanding
the emphasis on technical merit, the RFP advised that as "scores and
relative advantages or disadvantages become less distinct, differences in
price between proposals are of increased importance in determining the most
advantageous proposal." RFP sect. M-14.a.

A source selection evaluation board (SSEB) performed an evaluation and
scored the quality of each proposal based upon the established evaluation
factors. The solicitation provided that SSEB members would support their
evaluation scores with a narrative, setting forth strengths and advantages,
weaknesses or disadvantages, deficiencies and required clarifications. RFP sect.
M-12.2.b. The RFP also provided explicit scoring guidelines as follows:
outstanding (91-100%), excellent (81-90%), satisfactory (71-80%),
susceptible to being made acceptable (65-70%), and unacceptable (64% or
less), along with a narrative description of the standard that must be met
for each score. As relevant to the issues presented here, the guidelines
provide that, under each evaluation factor, in order to warrant a rating of
"outstanding," the proposal must:

satisfy to the fullest extent those characteristics required in the RFP. It
presents new or proven methods and is presented in extensive detail to
assure the evaluator has a thorough understanding of the proposed approach.
The approach has an outstanding probability of meeting requirements with
limited technical risk.

In order to be rated "excellent," a proposal must:

satisfy all the characteristics required in the RFP. It presents a
methodology in sufficient detail to assure the evaluator a good
understanding of the proposed approach. The approach has an excellent
probability of meeting requirements with limited technical risk.

RFP sect. M-12.2.c.

Although not specified in the solicitation, the agency had developed a
specifically tailored "Workbook for Source Selection" that the evaluators
were to complete for each proposal during their evaluation process. After
scoring the proposals in this way, the SSEB, as provided in the
solicitation, was to compare the relative merits of the proposals against
each other, establish a consensus evaluation of each proposal, and present a
recommendation to the source selection authority. RFP sect. M-12.2.a.

Three offerors, including BMAR (the incumbent contractor) and G&N, submitted
proposals by the established closing date. On August 20, 1999, the Corps
issued an amendment deleting a housekeeping requirement that had been
included in the solicitation, and revised its evaluation scale to reflect
this deletion. The members of the SSEB each reviewed the technical proposals
and scored each proposal by

completing the above-mentioned evaluation workbook. Initial
technical/management scores and prices were as follows:

 Offeror           Technical Score     Price

 BMAR              178/185             [deleted]

 G&N               180/185             [deleted]

 Offeror A         146/185             $33,633,733

Agency Report at 2.

By letters dated September 21 to each offeror, the contracting officer
identified deficiencies or areas requiring further discussion. Agency
Report, Tab L, Deficiencies/Clarifications. The contracting officer's letter
to BMAR included three technical/management questions and several questions
relating to BMAR's price proposal. Agency Report, Tab L, Letter from Army to
BMAR encl. (Sept. 21, 1999). The only question relevant to this protest was
a request that BMAR provide additional information regarding how emergency
response requirements will be met. The contracting officer posed three
technical/management questions to G&N, none of which has been placed in
issue. Agency Report, Tab L, Letter from Army to G&N encl. (Sept. 21, 1999).
Offerors were permitted to submit technical proposal revisions by October 7.
The SSEB reviewed the revised proposals and assigned the following scores:

 Offeror           Technical Score     Price

 BMAR              185/185             [deleted]

 G&N               184/185             [deleted]

 Offeror A         171/185             $31,804,872

Agency Report at 2.

The Corps closed discussions and permitted offerors to submit final price
proposals, which were received as follows:

 Offeror           Price

 BMAR              $20,278,800

 G&N               $20,310,300

 Offeror A         $29,980,423

Id. at 3.

The contracting officer, acting as the source selection authority,
determined that BMAR's proposal presented the best overall combination of
performance capability and price. Agency Report, Tab I, Source Selection
Decision Document. The Corps awarded the contract to BMAR on March 17, 2000
and notified the unsuccessful offerors of the award by letter of the same
day. G&N requested a debriefing, which was held on April 6. G&N filed its
protest in our Office on April 10, within the time period requiring a stay
of performance under the Competition in Contracting Act. See 31 U.S.C. sect.
3553(d) (1994). The agency determined to continue contract performance
notwithstanding the protest, based on urgent and compelling circumstances.
Memorandum from Deputy Assistant Secretary of the Army (Procurement) to
Commanding Officer, U.S. Army Corps of Engineers (Apr. 27, 2000). See 31
U.S.C. sect. 3553(d)(3)(C)(i)(II) (1994).

G&N challenges the contract award on numerous grounds, primarily asserting
that the Corps's evaluation and the resulting source selection were
unreasonable because BMAR's proposal could not rationally be rated as highly
as G&N's proposal, that the evaluation was inadequately documented, and that
the Corps accorded preferential treatment to BMAR during the evaluation
process through the use of unequal discussions. [1] Protest at 1-2;
Supplemental Protest at 2-3.

The crux of the protest is the allegation that BMAR's proposal could not
reasonably have merited a rating as high as G&N's, and certainly not a
perfect technical score. G&N couches this issue as an allegation that the
proposals were evaluated unreasonably and in a manner that was inconsistent
with the RFP's evaluation scheme. In essence G&N is arguing that, for
consistency with the solicitation's emphasis on technical excellence, the
RFP must have contemplated a meaningful distinction between "outstanding"
and "excellent" ratings. G&N suggests that this distinction should be made
by limiting the highest (outstanding) rating to proposals that exceeded (as
G&N believes its proposal did) the stated requirements.

Since the RFP's definitions of those terms made no meaningful distinction
between an outstanding proposal and an excellent one (and did not reserve
the "outstanding" rating for proposals exceeding the RFP requirements),
G&N's insistence that the agency, in its evaluation, should have made such a
distinction is really an objection to the evaluation scheme established by
the RFP, i.e., to the solicitation terms themselves. This protest ground is
untimely. Our Bid Protest Regulations provide that protests based upon
alleged improprieties in a solicitation which are apparent prior to the time
set for receipt of initial proposals shall be filed prior to the time set
for receipt of initial proposals. See 4 C.F.R. sect. 21.2(a)(1) (2000). When
initial proposals were submitted, the terms of the RFP had not been
protested, and the agency was entitled to apply them as they were. [2]

The most significant example in this regard is G&N's claim that its own
experience significantly exceeded both the RFP requirements and BMAR's
experience, so that G&N should have been more highly rated than BMAR in this
area. [3] Because the RFP does not call for awarding extra evaluation credit
for exceeding the stated requirements, the agency was not obligated to
credit additional evaluation points for doing so. See SeaSpace, B-241564,
Feb. 15, 1991, 91-1 CPD para. 179 at 4-5. Since the evaluators determined that
G&N's proposal met the RFP requirements "to the fullest extent," they rated
G&N's proposal outstanding. To the extent G&N is arguing that the agency was
required to reserve the highest rating for a proposal that exceeded the
requirements, as noted above, there is nothing in the RFP to support this
view. The issue is not, as G&N repeatedly insists, whether BMAR's and G&N's
proposals demonstrated identical or precisely equivalent technical merit or
equivalent experience vis-ï¿½-vis each other, but rather, whether each
satisfied the RFP requirements and met the RFP definition of "outstanding."
G&N does not provide a viable basis to challenge the Corps's conclusion that
BMAR's proposal did so; therefore, this aspect of G&N's protest is without
merit.

Another of the protester's central concerns relates to the documentation of
the evaluation. The protester alleges that the evaluation was inadequately
documented, and has identified 11 separate, detailed complaints about the
agency's documentation which it considers inadequate. Protester's
Post-Hearing Comments at 7-12. An agency's evaluation of proposals and
source selection decision should be documented in sufficient detail to allow
for review of the merits of a protest. Southwest Marine, Inc.; American Sys.
Eng'g Corp., B-265865.3; B-265865.4, Jan. 23, 1996, 96-1 CPD para. 56 at 10. In
our view, the narrow focus that the protester urges misconstrues the
requirement for adequate documentation.

Here, the protester objects to the agency's reliance on the workbook that
was used to record the evaluation of each proposal, contending that the
workbook did not provide the "narrative" promised by the RFP. The agency
explains that the workbook "was specifically tailored from the RFP document
in total, (mostly Sections L and M), and established a consistent form of
narratives through a question and response evaluation process." Supplemental
Agency Report, Tab EE, Contracting Officer's Statement, at 1. The workbook
approach was designed to divide the proposal into pieces that could be
quantified and accurately evaluated, to provide for a more consistent and
less subjective evaluation process. Id. at 2. The workbook was structured as
a 9-page form with 10 questions "relat[ing] to the necessary requisite
[qualifications] to successfully perform this contract." Id. Following each
question, the workbook listed the maximum number of evaluation points
available under that question and, in some cases, provided a further
breakdown of the criteria under which the point scores were allotted. For
example, under "[p]revious experience in similar type of work," the workbook
lists the following question:

a. Are there a minimum of 3 preventive maintenance and inventory task
performed during the last three years? (5 points)

Are these medical facilities? (5 points)

Agency Report, Tab S, Workbook for Source Selection, at 3.

In order to receive the full 10 points for that aspect of its proposal, an
offeror would have to show that it had performed at least three preventive
maintenance tasks at medical facilities during the last 3 years. Where a
proposal fully satisfied the requirement, the evaluators simply noted the
full number of points on the form. Where a proposal received less than the
full number of points, the evaluators wrote a separate comment identifying
whatever risk or weakness led to the lower score. Supplemental Agency
Report, Tab FF, Affidavits from Technical Evaluators, at 3; Agency Report,
Tab O, Initial Evaluation of Proposals; Tab K, Consensus Evaluation of
Proposals.

While the Corps's evaluation methodology did not specifically provide a
"narrative" for each evaluation criterion in the sense of an
individually-drafted comment for each factor, we think it satisfies the
Federal Acquisition Regulation (FAR) requirement that the agency document
the relative strengths, deficiencies, significant weaknesses, and risks
supporting the proposal evaluation. FAR sect. 15.305(a). The workbook scoring
provides a detailed list of the underlying bases for arriving at the score
for each proposal, which is what the FAR provision requires. Although the
protester is correct that the RFP indicated that the evaluators would
prepare a narrative, we think it would be elevating form over substance to
insist that the evaluation record contain a created narrative where the
workbook assessment establishes a form of narrative, and the evaluation
record otherwise satisfies the documentation standard established in the
FAR. To the extent that any of the workbook questions and scoring allowed
for ambiguity, we think the contracting officer and lead evaluator
adequately supplemented the contemporaneous written record through testimony
and written submissions during the development of the protest record to
resolve any possible questions regarding the meaning of information supplied
by the evaluation workbooks. Where post-protest explanations simply fill in
previously unrecorded details of contemporaneous conclusions, we will
generally consider them in our review of the rationality of selection
decisions, so long as those explanations are credible and consistent with
the contemporaneous record. NWT Inc.; PharmChem Labs., Inc., B-280988,
B-280988.2, Dec. 17, 1998, 98-2 CPD para. 158 at 16. We will discuss below
certain instances where the evaluation record was more fully explained
during the development of the protest.

In sum, the agency reasonably concluded that the proposals both met the RFP
requirements in a manner that warranted being credited with the highest
rating available under the RFP evaluation scheme; thus, we conclude that the
evaluation record, while somewhat sparse, was reasonable under the
circumstances presented here.

G&N also protests that the agency improperly relaxed certain requirements
during its evaluation, namely, two standards set forth in the evaluation
workbook that concern the size of facilities at which the offeror gained its
experience and the length of the experience, and a requirement for
experience with software known as Defense Medical Logistics Support System
(DMLSS).

Regarding the first of these allegations, the workbook includes the
following question intended to evaluate the offeror's "[c]apability to
perform multiple operation and maintenance tasks during the contract
period," which was worth a maximum of 20 points:

Does the proposal show sufficient evidence to substantiate that the offeror
can perform multiple facility O & M [operation and maintenance] task during
the contract period (simultaneously)?

(5 points.)

If this ability is shown for two or more medical facilities (Add 5 points)

If this ability is shown for two or more clinics or hospitals less than

500,000 SF (Add 10 points)

If this ability is shown for two or more hospitals larger than 500,000 SF

(Add 15 points)

Agency Report, Tab S, Workbook for Source Selection, at 4.

In our view, a 20-point (maximum) score for this item might reflect one
combination or another of the available points; it was not clear from the
number of points awarded the particular manner in which the offer satisfied
the requirement (although the score itself indicates that the standard had
been met). At the hearing, the lead technical evaluator explained that when
the SSEB members were applying this standard during its consensus
evaluation, they realized that the RFP did not contain any size-related
standard by which to measure the offeror's capability in this way, Tr. at
72-74, 83, i.e., the RFP never established a requirement for experience in a
facility of a particular size. The evaluators noted that G&N's proposal
listed several hospitals that met or exceeded the 500,000 square foot
standard. While BMAR's proposal listed examples of facilities (to
demonstrate different types of experience) that were generally smaller, the
evaluators also noted that in another part of the proposal, BMAR's proposal
listed the same (larger) facilities that G&N had listed. Id.

Recognizing that offerors had no notice that a 500,000 square foot standard
would be imposed during evaluation, or even that the size of the facilities
that the offeror chose to list as its examples of projects would matter in
any way in the evaluation, the evaluators reasoned that offers should not be
evaluated on the basis of a standard that was not disclosed in the RFP. Tr.
at 72-74, 78. Instead, the evaluators essentially deleted the "500,000
square feet" portion of the requirement from the workbook and awarded the
full 20 points to an offer that showed experience at two or more hospitals
of a reasonable size, which was true of both G&N's and BMAR's proposals. Tr.
at 80.

While G&N characterizes the SSEB's approach as a "nonenforcement of 500,000
square foot discriminator" and as the "relaxation of a prejudicial
discriminator in BMAR's favor," Protester's Post-Hearing Comments at 9, the
RFP simply did not include any such "discriminator." The standard, as
discussed above, appears only in the workbook. Notwithstanding that the
workbook was intended to substitute for a narrative, it is an internal
agency evaluation plan. Alleged deficiencies in the application of an agency
evaluation plan do not provide a basis for questioning the validity of the
award selection; these plans are internal agency instructions and as such do
not give outside parties any rights. Management Plus, Inc., B-265852,
Dec. 29, 1995, 95-2 CPD para. 290 at 2 n.2. Consequently, the fact that the
agency may not have precisely followed its internal evaluation instructions
is not a valid basis for protest. Moreover, in our view the Corps has
provided a reasonable basis for the scoring of this item in the evaluation.
[4]

The remaining specific objection to the technical evaluation is an
allegation that the Corps improperly relaxed a requirement in the RFP that
the proposal include, in its discussion of operations and management,
"experience in the use of . . . DMLSS." RFP sect. L-15. The protester alleges
that the evaluators improperly equated "interfacing with DMLSS" (which was
described in BMAR's proposal) with "experience in the use of DMLSS," and
improperly rated BMAR's proposal as outstanding in this area. At the
hearing, the lead evaluator referred to the RFP statement of work and noted
that the solicitation itself was "vague on what is required [in connection
with DMLSS] during the course of the contract." Tr. at 107. He agreed that
during the evaluation, the SSEB was liberal in allowing credit in this area,
applying the standard of whether an offeror "show[ed] us a reason to believe
that they understand what DMLSS is, that they can support us, fully based on
the proposal that they have given us." Tr. at 108. While he stated that the
evaluators did distinguish between interfacing with DMLSS and using it, he
noted that experience in interfacing with the software was viewed as
positive. Tr. at 110. In general, he stated that few contractors have much
experience in this area, and that the evaluators believed the level of
experience presented in G&N's and BMAR's proposals was equivalent, stating
that:

neither one of them gave me something that I could ironclad say he's been
into every part of DMLSS and he fully understand it and I could call him
tomorrow and he could go out there and run a DMLSS site for me. But I think
that's not a realistic expectation, based on what we required.

Tr. at 112.

The evaluator also pointed out a perceived error in G&N's discussion of
DMLSS in its proposal (referring to the use of DMLSS for a purpose for which
it allegedly is not used), Tr. at 116, and, when asked about a reference in
G&N's proposal to the use of "DMLSS as a standalone system" under a
particular contract, pointed out that performance under the contract being
cited had not yet begun at the time the evaluation was performed, and thus
G&N could not be credited with this experience. Tr. at 119-20. In these
circumstances, where the agency has reasonably supported its conclusion that
no meaningful distinction could be made between the level of experience
presented by the two proposals, where both were deemed to meet the
requirement, and where the protester has not rebutted the agency's position
that its relatively liberal allowance of credit for this item did not favor
one offeror over the other, we think the agency's explanation of how it
evaluated the proposals in this area is unobjectionable.

In addition to challenging the evaluation of technical proposals, the
protester alleges that the Corps engaged in unequal discussions, favoring
BMAR. G&N asserts that although the SSEB found fault with both offerors'
proposals in connection with how an emergency response requirement would be
met, it only raised this issue as a discussion question with BMAR. G&N did
not address this area in its proposal revisions, and it was in this area
that its proposal lost the one technical point that separated it from a
perfect score.

Although the agency provides an explanation for why it raised this issue
only with BMAR, we need not address this question on the merits. The Corps
consistently states throughout the evaluation and protest record that it
considered BMAR's and G&N's proposals technically equivalent. While an
agency may not conduct

prejudicially unequal discussions, SeaSpace, supra, at 6, here, whether the
discussions were equal or unequal, there was no prejudice to the protester's

competitive position as the result of the loss of one point that might have
been avoided had the agency raised the matter during discussion.

The protest is denied.

Robert P. Murphy

General Counsel

Notes

1. In its initial protest, G&N raised a number of additional issues,
alleging for example that the Corps issued an out-of-scope delivery order
under the predecessor contract, essentially allowed BMAR to initiate
performance prior to the award, and improperly delayed G&N's debriefing for
two weeks. These allegations will not be considered on the merits since they
do not affect the validity of the decision to award the contract to BMAR.
See C-Cubed Corp., B-272525, Oct. 21, 1996, 96-2 CPD para. 150 at 4 n.3. In
addition, G&N during the course of the protest has raised an array of
additional collateral matters which we do not believe warrant full
discussion. To the extent that these issues were timely raised, we have
considered them and find them without merit.

2. In this regard, the agency explained at a hearing held by our Office to
complete the record in this protest that it believed it could make a
qualitative distinction between meeting a requirement--which would earn the
rating of "excellent"--and meeting it "to the fullest extent"--earning the
rating of "outstanding"--based on the quality of the experience presented in
the proposal. See, e.g., Hearing Transcript (Tr.) at 66.

3. G&N alleges that "relative to G&N, BMAR had virtually no experience in
hospital facilities." Protest at 19. However, as G&N itself recognizes, BMAR
was the incumbent contractor for this requirement, having been awarded the
predecessor contract in 1996. Protest at 5. The contracting officer stated
that the work required by this RFP is "identical to the predecessor contract
with regards to the statement of work." Tr. at 128. The contracting officer
also stated at the hearing that he was familiar with the predecessor
contract, and that the Corps had placed over 100 task orders with BMAR to
perform at a variety of facilities under that contract. Tr. at 153. We
therefore find unsupported G&N's claim that BMAR had virtually no experience
in hospital facilities.

4. G&N raises a similar objection to a workbook question that imposes a
standard (of a minimum of 3 years experience in performing operations and
management) that is different from the requirement in the RFP (that the
offeror show experience during the past 3 years that includes 3 projects).
Because the underlying issue and our analysis are identical to the
size-of-the-facility issue, above, we will not separately discuss it.