TITLE: Wackenhut Services, Inc, B-286037; B-286037.2, November 14, 2000
BNUMBER: B-286037; B-286037.2
DATE: November 14, 2000
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Wackenhut Services, Inc, B-286037; B-286037.2, November 14, 2000
Decision
Matter of: Wackenhut Services, Inc
File: B-286037; B-286037.2
Date: November 14, 2000
William W. Goodrich, Esq., David A. Vogel, Esq., and Richard J. Webber,
Esq., Arent Fox Kintner Plotkin & Kahn, for the protester.
Myrna E. Friedman, Esq., Sargeant & Friedman, for SecTek, Inc., an
intervenor.
Scott W. Barber, Esq., National Imagery and Mapping Agency, for the agency.
Marie Penny Ahearn, Esq., and John M. Melody, Esq., Office of General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Where cost information was called for by solicitation to "validate that
the proposed costs are consistent with the technical presentation," but
fixed-price contract was to be awarded, agency was not required to conduct
detailed cost analysis of awardee's proposal; agency conducted price
analysis--consisting of comparison of awardee's price with others received
and government estimate--and reasonably concluded that, since the prices
were comparable, there was no basis for finding that awardee lacked
understanding of the requirement.
2. Protest challenging evaluation of awardee's past performance is denied
where awardee and protester both received high ratings from references, and
protester's slightly better ratings were reasonably reflected in its
somewhat higher consensus past performance rating.
3. Protest challenging decision to make award to offeror submitting
higher-priced, higher-rated proposal is sustained where record includes
inadequate documentation supporting selection decision.
DECISION
Wackenhut Services, Inc. protests the award of a fixed-priced award-fee
contract to SecTek, Inc., under National Imagery and Mapping Agency (NIMA)
request for proposals (RFP) No. NMA-401-00-R-0008, for armed guard services
at the Washington Navy Yard. Wackenhut challenges the evaluation on several
grounds, and argues that the agency failed to adequately document the
rationale for its source selection decision.
We sustain the protest.
The RFP provided that award would be made on a best value basis, and that
proposals would be evaluated under the following factors: technical,
management, security (pass/fail), and past performance. Management was more
important than technical, which was more important than past performance,
which was more important than price. The non-price factors were
significantly more important than price. Price was not to be scored. RFP, as
amended (hereinafter RFP), sect.sect. M-2 and M-3, at 38-41.
NIMA received seven proposals. The agency conducted discussions and provided
an opportunity for final proposal revisions; neither SecTek nor Wackenhut
revised their proposal. Contracting Officer's (CO) Statement at 4-5. SecTek
and Wackenhut submitted the two highest-rated proposals as follows (with
raw/weighted scores): [1]
Tech. Mgmt. Past Security Total Total
Perf. Raw Weighted
Score Score
SecTek 94/282 97/582 94/94 Pass 285 958
[2]
Wackenhut 94/282 95/569 99/99 Pass 283 950
Consensus Evaluation; Memorandum for File at 2.
NIMA conducted a price analysis to ensure that total prices were fair and
reasonable. The agency determined that the price proposals of four offerors,
including SecTek's and Wackenhut's, were reasonable based on adequate
competition and favorable comparison to the government estimate. Negotiation
Memorandum at 3. Wackenhut's offered price of $12,239,564 was the lowest of
the four reasonably priced offers, and SecTek's, at $12,331,076, was second
lowest. Abstract of Offers.
The source selection team recommended award to SecTek and the source
selection official (SSO) approved the recommendation. Navy Yard Guard
Contract Recommendation at 1-2 (hereinafter Contract Recommendation). The
agency then conducted a tradeoff analysis and determined that SecTek's
proposal represented the "greatest value" to the government "amongst the
highest rated proposals based on both cost and non-cost factors."
Negotiation Memorandum at 13. In this regard, the agency stated that "the
difference in capability between the higher rated SecTek and the lower rated
Wackenhut [wa]s worth the marginal difference in price between SecTek and
the slightly lower priced Wackenhut." Id. The agency considered that both
Wackenhut and SecTek received "superior" ratings under the technical,
management, and past performance factors, but concluded that "SecTek's
overall proposal was more superior than any other offeror's proposal with
the exception of the past performance ratings received by Wackenhut and
[another offeror not at issue here]." Id. at 14. The agency therefore made
award to SecTek.
PRICE ANALYSIS
Wackenhut asserts that, had the agency considered whether required cost
information furnished by SecTek "validate[d] that the proposed costs are
consistent with the technical presentation," as the RFP described the
purpose of the information, the agency would have become aware that
technical advantages found in SecTek's proposal were not reflected in
SecTek's price (and also would have found other flaws in the proposal), and
thus were not valid discriminators in the award decision.
Even where cost information is required to be furnished by offerors,
agencies are not required to conduct a detailed cost analysis of proposals
where a fixed-price contract is to be awarded. Star Mountain, Inc.,
B-285883, Oct. 25, 2000, 2000 CPD para. __ at 4; Sperry Corp., B-225492,
B-225492.2, Mar. 25, 1987, 87-1 CPD para. 341 at 3. Agencies may provide for a
cost/price analysis for the purpose of assessing understanding of the
requirement, or risk inherent in the offeror's approach, but the extent of
the analysis in these circumstances is largely within the agency's
discretion. Family Realty, B-247772, July 6, 1992, 92-2 CPD para. 6 at 4; Sperry
Corp., supra, at 3.
NIMA conducted a price analysis, comparing SecTek's price to the other
prices received and the government estimate. Because the prices were
comparable, the agency found no reason to examine the specific elements of
SecTek's price, or to conclude that there was some inconsistency between the
price and the firm's highly-rated technical presentation that indicated a
lack of understanding. In contrast, since the proposed prices of two other
offerors were significantly below the government estimate, the agency
determined that those offerors demonstrated a lack of understanding of the
government's requirements and represented a high performance risk to the
government. Negotiation Memorandum at 2. We find nothing unreasonable in the
agency's actions.
PAST PERFORMANCE EVALUATION
Under the past performance factor, the RFP provided that the evaluation
would be based on an assessment of responses to questions obtained from the
references listed in the offerors' proposals, as well as any useful and
relevant information obtained from other sources by the government. RFP sect.
M-2.2.4 at 40. Wackenhut's past performance score was 99 (out of 100
available) points. It argues that the agency unreasonably raised SecTek's
past performance score from an initial rating of 85 to a final consensus
rating of 94 points; it asserts that SecTek's original score accurately
reflected the quality of the firm's references compared to Wackenhut's.
The consensus evaluation record indicates that SecTek's past performance
score was "changed as a result of [a] disparity in the way various offerors
were rated when providing basically the same information." Memorandum for
the File at 3. Regardless of why the agency made the scoring adjustment, we
find the final past performance scores reasonable. In the evaluation, the
agency obtained two past performance references for each offeror. One
reference assigned SecTek's performance a score of 8 out of 10 points. Past
Performance Risk Analysis Questionnaires for SecTek. While this reference
commented that SecTek had [DELETED], the reference nevertheless commented
positively that SecTek was "Very cooperative," and satisfactorily fulfilled
the requirements of the contract, and that the reference would hire them
again. Id. SecTek's second reference assigned the firm a score of 9 points.
The reference commented that there were "[DELETED], but they [w]ere
resolved." The reference went on to state that SecTek's coverage
nevertheless was "excellent," that the firm had "good corporate support and
excellent project management," that it fulfilled the requirements of the
contract and was cooperative, and that the reference would "Absolutely" hire
them again. Id. Wackenhut received ratings of 9 and 10+ out of 10, with
positive comments such as "Very cooperative," "Excellent coverage," "they
have earned 100 [percent] of the award fees and all the incentives," "Total
customer orientation," "Good corporate support," "Good communications," and
"Pleasure to work with." Past Performance Risk Analysis Questionnaires for
Wackenhut.
The evaluation in this area was unobjectionable. The RFP did not set forth
any definitive method for determining precisely how many evaluation points
would be assigned for various levels of quality reflected in the past
performance references; the precise scores to be assigned were left to the
reasonable judgment of the agency. While the record shows that SecTek's
references were somewhat less favorable than Wackenhut's, SecTek's overall
ratings nevertheless were very good. This being the case, and since there
were no objective scoring guidelines that were to be applied, we think the
5-point difference in the firms' final past performance scores falls well
within the bounds of reasonableness.
AWARD DECISION
Wackenhut challenges the conclusions on which the award decision was based,
and maintains that the documentation in the record is inadequate to support
the award decision. The protester maintains that the original tradeoff
analysis, documented in the negotiation memorandum, failed to identify any
aspects of SecTek's proposal that merited payment of a cost premium, and
instead improperly was based on the overall point scores. See Opti-Lite
Optical, B-281693, Mar. 22, 1999, 99-1 CPD para. 61 at 4-6. Additionally, the
protester contends that, while the award recommendation identifies apparent
advantages of SecTek's management proposal, those advantages in fact are
illusory, either because Wackenhut offered comparable features, or because
the advantages cited are not reflected in, and thus are inconsistent with,
the consensus evaluation or the proposals themselves. In response to the
protest, the agency submitted a post-protest tradeoff analysis. [3]
Supplemental Agency Report, (SAR) Oct. 6, 2000. Wackenhut asserts that this
post hoc analysis also is inadequate, primarily because it is inconsistent
with the contemporaneous record, and improperly relies on undocumented
statements reportedly made during oral discussions.
We will uphold an award to a higher-rated offeror at a higher price where
the result is consistent with the evaluation criteria and does not violate
procurement statutes or regulations, and the contracting agency reasonably
determines that the cost premium involved is justified considering the
superiority of the selected proposal. J&J Maintenance, Inc., B-284708.2,
B-284708.3, June 5, 2000, 2000 CPD para. 106 at 3; International Consultants,
Inc.; International Trade Bridge, Inc., B-278165, B-278165.2, Jan. 5, 1998,
98-1 CPD para. 7 at 5-6. Where a price/technical tradeoff is made, the selection
decision must be documented, and the documentation must include the
rationale for the tradeoff, "including benefits associated with additional
costs." Federal Acquisition Regulation (FAR) sect. 15.308. While we generally
accord greater weight to contemporaneous evidence, we will consider
post-protest explanations that provide a rationale for contemporaneous
conclusions, so long as those explanations are credible and consistent with
the contemporaneous record. Jason Assocs. Corp., B-278689 et al., Mar. 2,
1998, 98-1 CPD para. 67 at 6; ITT Fed. Servs. Int'l Corp., B-283307, B-283307.2,
Nov. 3, 1999, 99-2 CPD para. 76 at 6. Where there is inadequate supporting
documentation for a source selection decision, there is no basis for us to
conclude that the agency had a reasonable basis for the decision. Jason
Assocs. Corp., supra.
We agree with the protester that the record here contains inadequate
documentation to support the award decision. There are a number of areas of
SecTek's proposal that the agency attempts to portray as commendable
features, superior qualities, or discriminators. However, the record shows
that Wackenhut's lower-priced proposal, which was scored very close to
SecTek's, also was recognized as providing several strengths, and the record
contains no explanation as to why the agency preferred SecTek's strengths to
Wackenhut's. In this regard, the original tradeoff determination recognized
that both SecTek and Wackenhut received "superior ratings" under the
technical, management, and past performance factors, but it then merely
concluded that the difference in "capability" between the offerors "is worth
the marginal difference in price." Negotiation Memorandum at 13-14. The
determination provides no explanation of the benefits that warrant paying
SecTek's higher price. While the negotiation memorandum discusses the
initial and final evaluations, including the strengths of the two proposals
(no weaknesses were noted in either proposal), it does not indicate which
strengths were considered in the tradeoff and does not explain the benefits
associated with any particular strength. Similarly, the contract
recommendation mentions "commendable," "attractive," or "superior" features
of both offerors' proposals without indicating why SecTek's strengths
outweigh Wackenhut's or otherwise warrant paying SecTek's higher price.
Absent an explanation as to why SecTek's strengths were deemed more
beneficial than Wackenhut's, there is no basis to conclude that the award
decision was reasonable. The agency has attempted to cure this lack of
documentation in the post-protest tradeoff analysis referenced by Wackenhut,
which identifies discriminators between the proposals and purports to
provide a detailed rationale for the award decision. However, this analysis
consists largely of judgments that are not reflected in the contemporaneous
record. We discuss several of the identified superior features of SecTek's
proposal below to illustrate the flaws in the record and the inadequacy of
the agency's rationale for the award decision.
Superior Benefits Package
SecTek's employee benefits and retention plan is described in the
contemporaneous documentation as generous and attractive, and in the
post-protest tradeoff analysis as an award discriminator. Negotiation
Memorandum at 6; Contract Recommendation at 2; Post-Protest Tradeoff
Analysis at 1, 4-5. The specific features on which the agency's conclusion
was based are set forth only in the written discussion record, which refers
to the firm's [deleted]. SecTek Oral Discussion at 2. [4] However, Wackenhut
contends that it also offers a competitive salary, [DELETED] above the
guards' salaries level under the current contract, and the agency neither
disputes this assertion nor explains why SecTek's salary level nevertheless
is superior. [5] Wackenhut further notes that there is no indication in
SecTek's proposal that the value of its [DELETED] plans exceeds the cost of
the health and welfare fringe benefits already required to be provided by
the successful offeror under the applicable wage determination. RFP exh. 4
at 6. The agency does not directly respond to this assertion, but cites as a
benefit in its post-protest tradeoff analysis the fact that SecTek offers
[DELETED]. However, neither of these features is contained in SecTek's
proposal, and while the agency states that SecTek elaborated on these
features during its oral discussions, there is no mention of them in the
discussion record or elsewhere, and SecTek did not submit a revised proposal
incorporating these features following discussions. See SecTek's Cost
Proposal Narrative at 1-2. Absent some documentation that the features in
fact were presented during discussions, and incorporated in SecTek's
proposal, the features are not a reasonable basis for discriminating between
the proposals for award purposes. See generally Checchi and Co. Consulting,
Inc., B-285777, Oct. 10, 2000, 2000 CPD para. __ at 6 (agency must maintain a
record of oral presentation adequate to permit a meaningful review). [6]
As for the employee retention plan, the contract recommendation refers to
SecTek's [DELETED] as proposal benefits. Contract Recommendation at 2. We,
however, find no reference in SecTek's proposal to [DELETED] and our review
confirms the protester's assertion that it also offers [DELETED] as well as
[DELETED] such as [DELETED]. Wackenhut Technical Proposal at 4-5. [7] While
Wackenhut's proposal, unlike SecTek's, does not specify the [DELETED], the
record does not show that the agency ever concluded that this set SecTek's
proposal apart from Wackenhut's in the award decision; rather, it appears
the agency ignored the similar features in Wackenhut's proposal. Since the
[DELETED] programs appear comparable, this was not a reasonable
discriminator.
Management Approach
The contract recommendation refers to SecTek's "proactive" management
approach in identifying, addressing, and correcting common problems
encountered with guard contracts, without elaborating on the "detailed
information" purportedly provided by the firm, which was the basis for the
agency's determination that SecTek's proposal was superior in this area.
Contract Recommendation at 2. Similarly, the consensus evaluation alludes to
SecTek's "Well-structured management approach," but, again, does not
elaborate further. SecTek Consensus Evaluation at 2. The negotiation
memorandum states that "SecTek has a well-structured and quality oriented
management approach that is fair to its employees and stresses their
continual improvement and morale," but, again, does not identify what
aspects of the approach led to this conclusion. Negotiation Memorandum at 6.
In its post-protest tradeoff analysis, the agency for the first time
identifies reasons for finding that SecTek offered a superior management
approach: (1) "proactive" [DELETED] (2) [DELETED] and (3) [DELETED]. [8]
Post-Protest Tradeoff Analysis at 2-3. However, these features of SecTek's
management approach go well beyond the references in the contemporaneous
record. While all three features perhaps could be considered "proactive",
consistent with the contract recommendation's cryptic reference, they do not
appear to be consistent with the consensus evaluation's reference to
"well-structured management approach," or to the references in the
negotiation memorandum to "well-structured," "quality oriented," "fair to
employees," or "stresses their continual improvement and moral." In other
words, the post-protest analysis sets forth a new rationale for considering
SecTek's proposal superior in this area. This being the case, this aspect of
the post-protest tradeoff analysis is inconsistent with the contemporaneous
record. Under these circumstances, we conclude that the agency's
judgments--developed for the purpose of defending the protest--do not
provide an adequate basis for us to conclude that the award decision was
reasonable. See Boeing Sikorsky Aircraft Support, B-277263.2, B-277263.3,
Sept. 29, 1997, 97-2 CPD para. 91 at 15.
Organizational Approach
The post-protest tradeoff analysis identifies as a discriminator SecTek's
organizational chart, which the negotiation memorandum listed as a strength
for providing a direct line of communication between the [DELETED].
Post-Protest Tradeoff Analysis at 5; SecTek Management Proposal at 4; see
also Negotiation Memorandum at 6. However, Wackenhut's proposal showed its
project manager reporting directly to the company president, which was
evaluated as a strength in the consensus evaluation; the agency does not
dispute Wackenhut's assertion that its proposal was comparable in this
regard. Wackenhut Management Proposal at 6; Wackenhut Consensus Evaluation
at 3. Consequently, the record does not support use of this feature as a
discriminator between the proposals.
In the post-protest tradeoff analysis, the agency attempts to further
distinguish SecTek's organizational approach by noting that the firm
provided more detailed information in this area than Wackenhut, including
the [DELETED] and [DELETED]. However, the only mention of these features in
the contemporaneous record is in the consensus evaluation, which lists as a
strength that SecTek's [DELETED]. SecTek Consensus Evaluation at 2. There is
no reference to [DELETED] or to [DELETED]. We conclude that these purported
advantages of SecTek's proposal are largely post-protest judgments and that,
as such, they do not provide a basis for concluding that the evaluation was
reasonable.
Contingency and Phase-In/Start-Up Plans
In its post-protest tradeoff analysis, the agency identifies SecTek's backup
contingency plan as a discriminator. Post-Protest Tradeoff Analysis at 7-8.
However, the contemporaneous record does not indicate that this was a
consideration in the award decision, and actually suggests that it was not.
In this regard, the negotiation memorandum lists the contingency plan as a
strength for both SecTek and Wackenhut and the consensus evaluation lists
Wackenhut's "Excellent Contingency Plan" as a strength, but makes no mention
of SecTek's contingency plan. Negotiation Memorandum at 5 and 6; Consensus
Evaluation for Wackenhut at 3. Similarly, the post-protest tradeoff analysis
identifies SecTek's phase-in/start-up plan as a discriminator. Post-Protest
Tradeoff Analysis at 8. However, the consensus evaluation states that both
SecTek and Wackenhut have "excellent" phase-in/start-up plans. Consensus
Management Evaluation for SecTek at 2; Consensus Management Evaluation for
Wackenhut at 3. We conclude that the record does not support consideration
of these features as a basis for concluding that SecTek's proposal was
superior to Wackenhut's.
RECOMMENDATION
Since the record shows that certain features of the proposals were explained
during oral discussions, we recommend that NIMA reopen discussions with
SecTek and Wackenhut, allow them to submit revised proposals, and then
reevaluate the proposals. The discussions, evaluation and award decision
should be fully documented, consistent with our decision. If the agency
determines that Wackenhut's proposal represents the best value, we recommend
that the agency terminate SecTek's contract for convenience and award a
contract to Wackenhut. We also recommend that Wackenhut be reimbursed the
costs of filing and pursing its
protest, including reasonable attorneys' fees. Bid Protest Regulations 4
C.F.R.
sect. 21.8(d)(1) (2000). Wackenhut's certified claim for costs, detailing the
time spent and the costs incurred, must be submitted to the agency within 60
days after receiving this decision.
The protest is sustained.
Anthony H. Gamboa
Acting General Counsel
Notes
1. The consensus evaluation included a revised technical evaluation, which
was conducted because of inconsistencies identified in the individual
evaluators' worksheets as follows: (1) numerical ratings which did not match
the narrative write-up, (2) certain areas noted in the narrative which were
not directly relevant to evaluation factors, and (3) a disparity in the way
proposals were rated when providing basically the same information.
Memorandum for the File, Aug. 23, 2000 (hereinafter Memorandum for the
File), at 1.
2. The evaluation scoring sheets provided adjectives for the numerical
scoring as follows: 91-100 Superior, 81-90 Good, 71-80 Acceptable, 61-70
Marginal, and under 60 unacceptable.
3. The agency's post-protest tradeoff analysis was submitted after our
Office held an alternative dispute resolution/outcome prediction telephone
conference, during which we informed the agency that the record at that
point did not appear to set forth an adequate rationale for the award
decision.
4. The consensus evaluation makes no mention of SecTek's benefits package;
the negotiation memorandum simply notes SecTek's "generous benefits package"
as a strength, without any elaboration on the specific benefits which were
deemed generous. Negotiation Memorandum at 6.
5. While the agency prepared a compensation analysis in response to the
protest, that analysis shows only that for all years SecTek's hourly rates
for guards and the project manager are only slightly [DELETED] than
Wackenhut's, whereas Wackenhut's rates for shift supervisors are slightly
[DELETED] than SecTek's. However, all of the differences between the
offerors' rates, except one, account for less than [DELETED] per hour, and
that exception, for SecTek's project manager for option year 4, is only
[DELETED] per hour [DELETED] than Wackenhut's rates. It is not apparent from
this analysis how SecTek's salaries are more competitive than Wackenhut's.
6. Although an e-mail message from one evaluator states that he increased
his final management score for SecTek based on, among other reasons, the
firm's presentation during oral discussions of the [DELETED] it remains that
there is no documentation establishing that SecTek actually offered this
feature and, more importantly, nothing in its offer that would bind it to
provide the feature in performing the contract. Moreover, there remains
absolutely no evidence regarding SecTek's purported [DELETED].
7. The written record of oral discussions does not refer to SecTek's
proposed [DELETED] as a beneficial feature. Rather, the agency's assertion
in this regard is based on a contemporaneous e-mail message between
evaluators which, in discussing the basis for raising SecTek's final
evaluation management score, states that during oral discussions SecTek
"gave examples" of [DELETED]. Revised Technical Evaluation, E-Mails, July
13, 2000, at 1.
8. The agency asserts that it also determined that SecTek's [DELETED]
evidences "proactive" recruitment. Post-Protest Tradeoff Analysis at 2. As
discussed, however, there was no indication in SecTek's proposal of a
[DELETED].