TITLE:  SWR, Inc., B-286229; B-286229.2, December 5, 2000
BNUMBER:  B-286229; B-286229.2
DATE:  December 5, 2000
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SWR, Inc., B-286229; B-286229.2, December 5, 2000

Decision

Matter of: SWR, Inc.

File: B-286229; B-286229.2

Date: December 5, 2000

Benjamin M. Bowden, Esq., Albrittons, Clifton, Alverson & Moody, for the
protester.

Michael Colvin, Department of Health and Human Services, for the agency.

Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency decision to exclude proposal for operation of two animal care
facilities from the competitive range as unacceptable was reasonable where
proposal confused requirements of the facilities, failed to address
requirements of one facility, and did not address potential problems that
could affect the animals and possible solutions to those problems.

DECISION

SWR, Inc. protests the exclusion of its proposal from the competitive range
under request for proposals (RFP) No. 2000-N-00050, issued by the Department
of Health and Human Services, Centers for Disease Control and Prevention
(CDC), for the care and maintenance of laboratory animals (used for
research) at the Chamblee and Lawrenceville animal care facilities.

We deny the protest.

The solicitation provided for a best value evaluation based on technical,
past performance and price factors. The technical factors to be evaluated
were staffing, experience and qualifications; management approach;
understanding the project; and quality assurance plan. A technical
evaluation panel (TEP) evaluated the proposals received and determined that
SWR's was unacceptable due to substantial informational and other
deficiencies under each evaluation factor; it concluded that SWR did not
understand how to operate an animal care facility for laboratory animals.
Competitive Range Decision (CRD) at 2.

More specifically, with respect to staffing, the TEP found that SWR did not
propose a sufficient number of personnel to ensure compliance with the
statement of work, proposed an assistant project manager without minimal
experience and education requirements, and lacked the depth to provide
staff. Evaluation Report (ER) at 5. With respect to management approach, the
TEP questioned SWR's ability to provide the initial workforce and
replacements, and found that the proposal did not set forth an adequate
recruitment plan and did not discuss potential difficulties and problems
that may be involved in performing animal husbandry services, with
approaches for their resolutions. [1] Id. With respect to understanding the
problem, the TEP was concerned because SWR repeated the standard operating
procedures listed in the RFP without discussing how they would be
implemented. Id. Finally, under quality assurance plan, the TEP found that
SWR's plan for contact with the project manager was unrealistic. Id. at 6.
CDC excluded SWR from the competitive range based on the unacceptability of
its technical proposal. CRD at 2. SWR protests that decision, challenging
several aspects of the evaluation.

The competitive range consists of the most highly rated proposals (except
where the range is reduced for purposes of efficiency), based on evaluation
of the information submitted in each proposal against the stated evaluation
criteria. United Housing Servs., Inc., B-281352.14, May 7, 1999, 99-1 para. 80
at 3. An offeror runs the risk of having its proposal downgraded and
excluded from the competitive range if the proposal is inadequately written.
Id. In reviewing protests of competitive range determinations, we will not
reevaluate proposals; rather, we will review the record to ensure that the
evaluation and competitive range determination were reasonable and
consistent with the terms of the solicitation. SDS Petroleum Prods., Inc.,
B-280430, Sept. 1, 1998, 98-2 CPD para. 59 at 4. The evaluation here, and the
agency's decision to exclude SWR's proposal from the competitive range, were
reasonable.

MANAGEMENT APPROACH

CDC found SWR's proposal deficient under the management approach factor
because, among other things, in addressing anticipated problems that could
arise and potential solutions to those problems, SWR did not indicate that
it had access to veterinary or laboratory animal science consultation
services. ER at 5. SWR concedes that it would be logical for the agency to
require the contractor to have access to professional consultation services,
Protest at 3, but argues that, since the solicitation did not list such a
requirement, it was improper for CDC to use this as a criterion in
evaluating SWR's proposal.

Solicitations must inform offerors of the basis for proposal evaluation, and
the evaluation must be based on the factors set forth in the solicitation.
Federal Acquisition Regulation (FAR) sect.sect. 15.304(d), 15.305(a). However, while
agencies are required to identify the major evaluation factors, they are not
required to identify the various aspects of each factor which might be taken
into account, provided that such aspects are reasonably related to or
encompassed by the stated criteria. Advanced Data Concepts, Inc.,
B-280967.8, B-280967.9, June 14, 1999, 99-2 CPD para. 19 at 4.

The RFP instructed offerors that, in addressing management approach, they
should provide a summary of anticipated major difficulties and problem
areas, with recommended approaches to resolving them. RFP sect. L.12(2). [2]
Since the contract to be awarded called for the care of laboratory animals
on a daily basis, we think this instruction logically encompassed requiring
offerors to demonstrate in their proposals that they are aware of potential
problems related to the care of animals, including illness or injury, and
potential solutions to those problems. [3] It follows that CDC reasonably
downgraded SWR's proposal for failing to identify these potential problems.

The agency also was concerned, under the management approach factor, that
SWR would be unable to provide an initial workforce and replacements with
the required experience and qualifications. ER at 5. This was related to a
concern that SWR did not have an adequate recruitment plan. Id. With respect
to recruitment, offerors were required to include a discussion of resources
to be used for recruiting new and replacement personnel. RFP at sect. L.12(2).
CDC found SWR's recruitment plan inadequate because it was too generic.
Contracting Officer's Statement (COS) at 5. More specifically, SWR stated
that recruitment would be done through professional and trade journals
applicable to the field of laboratory animal care services, generic
veterinary Internet sites and newspapers, but did not indicate that it was
familiar with appropriate journals or professional societies in the
specialized area of laboratory animals, within the field of veterinary
medicine. Id. SWR asserts that its recruitment plan in fact was commercially
feasible, and that this aspect of the evaluation therefore was flawed. This
response constitutes mere disagreement with the evaluation; it does not
address the basis for the agency's conclusion. In this regard, the agency
expressed concern, not with the commercial feasibility of SWR's recruitment
plan, but with SWR's apparent lack of familiarity with the journals and
associations that were at the heart of its plan. We find nothing
unreasonable in the agency's concern.

UNDERSTANDING THE PROJECT

The solicitation advised offerors that in responding under the understanding
the project factor they should provide a narrative summary of their
understanding of the required services, as outlined by the statement of work
(SOW). RFP sect. L.12(b)(3). In reviewing SWR's proposal under this factor, the
agency noted that SWR merely repeated the standard operating procedures and
SOW, and provided no information demonstrating that it understood how to
implement them. See COS at 6. The TEP concluded that SWR did not understand
how to operate an animal care facility. In its report in response to SWR's
protest, CDC further noted that, while the RFP listed different services for
the Chamblee and Lawrenceville facilities, SWR's proposal did not
distinguish between the two facilities. For example, the proposal discussed
malaria slides for the Lawrenceville facility, but such studies are
performed only at the Chamblee facility. COS at 6. The proposal also
contained no discussion of the restraint of dogs, livestock and other exotic
animals located at the Lawrenceville facility, even though such animals were
listed as resident at that facility. Id.; SOW sect. C.5(c).

SWR does not dispute that it merely repeated the standard operating
procedures, without discussing how those procedures would be implemented in
the SOW. SWR also concedes that it confused the requirements of the
Lawrenceville and Chamblee facilities. SWR asserts, however, that this
confusion was due to the fact that the RFP listed non-human primates at both
facilities.

The evaluation in this area was reasonable. The RFP specifically advised
offerors to provide a narrative demonstrating their understanding of the
requirement. SWR did not provide any meaningful narrative, instead merely
restating the standard operating procedures and SOW. Offerors run the risk
of having their proposals downgraded or rejected where the proposal as
submitted is inadequately written. McHargue Constr. Co., B-279715, July 16,
1998, 98-2 CPD para. 21 at 6. Further, even if SWR found the RFP confusing with
respect to the location of non-human primates, SWR has not explained, and it
is not clear to us, how this alleged confusion led to SWR's failure to
distinguish between the two facilities regarding the requirement for malaria
studies. Section C of the solicitation clearly delineates the requirements
for the two facilities. With respect to the Chamblee facility, the
solicitation states that primates are exposed to mosquitoes, and that the
offeror shall "make malaria slides on all infected non-human primates." SOW
sect. C.4.3(b). In contrast, the requirements for Lawrenceville do not address
malaria studies. See SOW sect. C.5. Nor does the alleged RFP confusion explain
SWR's failure to address the restraint of dogs, livestock and exotic animals
at the Lawrenceville facility; again, the solicitation clearly provided that
these animals would be cared for at that facility. It thus appears that SWR
did not read the solicitation carefully, and/or did not understand that the
two facilities were to be treated differently. In any case, given SWR's
failure to provide a narrative beyond restating the standard operating
procedures and SOW, the agency reasonably concluded that SWR failed to
demonstrate an understanding of the requirements of the RFP.

We conclude that the evaluation was reasonable in the areas SWR challenges.
Given the deficiencies in these areas and the other evaluation deficiencies
SWR does not challenge, there is no basis for us to question the agency's
decision to exclude SWR's proposal from the competitive range as
unacceptable.

PAST PERFORMANCE

SWR argues that CDC improperly failed to consider past performance, a stated
evaluation factor, in determining whether to include its proposal in the
competitive range. This argument is without merit. Since the agency
concluded--reasonably, we have found--that SWR's proposal was technically
unacceptable, there was no possibility that SWR would receive the award,
even with a favorable past performance evaluation. Under these
circumstances, it would have served no purpose--and the agency thus was not
required--to consider SWR's past performance. See generally Telestar Corp.,
B-275855, Apr. 4, 1997, 97-1 CPD para. 150 at 6 (where proposal is deemed
technically unacceptable, and therefore ineligible for award, agency need
not consider price in setting competitive range). [4]

DEFICIENCIES IN OTHER PROPOSAL

SWR argues that the agency found deficiencies in another offeror's proposal,
and nevertheless included that proposal in the competitive range.
Specifically, the agency found that the offeror's proposed assistant project
manager for the Lawrenceville facility did not meet the education
requirements of the RFP, and that the proposal did not specifically
acknowledge the need for emergency personnel to respond within 1 hour, as
required by the RFP. SWR maintains that it was improper to include this
proposal in the competitive range while excluding SWR's.

This argument is without merit. As stated above, the competitive range is
comprised of the most highly rated proposals. This does not mean that
competitive range proposals cannot contain weaknesses or deficiencies.
Indeed, the purpose of establishing a competitive range is to hold
discussions with offerors so that they can revise their proposals to meet
the agency's requirements. FAR sect.sect. 15.306(c)(d), 15.307. Here, despite the
two cited deficiencies, the proposal in question was the highest-rated
proposal received, and the agency found that the proposal demonstrated a
clear understanding of the RFP requirements, provided extensive details with
respect to how it would implement the contract and was overall acceptable.
Agency Supplemental Report at 3. In contrast, SWR's proposal contained
numerous material deficiencies which, the agency found, indicated that SWR
did not understand the requirements, and rendered its proposal unacceptable.
We conclude that there is no basis to question the agency's decision to
include the proposal in the competitive range while excluding SWR's. [5]

The protest is denied.

Anthony H. Gamboa

Acting General Counsel

Notes

1. The agency listed SWR's failure to have an adequate recruitment plan
under the staffing factor. However, the RFP listed it under the management
factor, and SWR addressed it under the management factor.

2. SWR asserts that it raised potential recruitment problems in response to
this instruction, and suggests that this is all that the RFP required. CDC
listed the recruitment problem response as a strength in SWR's proposal.
However, there was no basis for SWR to read the RFP instruction as limiting
the problems to be identified to this area, and the fact that the agency
identified SWR's identification of potential recruitment problems as a
strength did not preclude it from also finding the proposal deficient for
not identifying animal-related problems.

3. In its report addressing SWR's failure to address potential problems
concerning the animals, CDC states that SWR did not identify personnel with
a laboratory animal background. SWR disputes this statement. We need not
resolve this dispute, since this was not a basis for downgrading SWR's
proposal in the evaluation.

4. In its October 30 comments in response to the agency report, SWR for the
first time argues that CDC was required to consider price in determining the
competitive range. In November 9 comments responding to the agency's report
on a supplemental protest, SWR argues for the first time that the agency
improperly found that SWR did not offer a sufficient number of staff. SWR
knew from the August 28 debriefing that the agency had eliminated its
proposal from the competitive range without considering price, Debriefing
Notes at 5, and that the agency found SWR had offered an inadequate number
of personnel. Id. Since SWR raised these issues more than 10 days after the
debriefing, they are untimely and will not be considered. 4 C.F.R. sect.
21.2(a)(2) (2000).

5. SWR also notes that its proposal was criticized in several areas where
one or more of the evaluators found it acceptable, and asserts that this
undermines the agency's evaluation conclusions. However, after each
evaluator evaluated the proposals individually, the evaluators collectively
agreed on a consensus evaluation, i.e., one that reflects the final
conclusions of all evaluators, and the final evaluation was based on this
consensus. See TER at 1. Where an agency uses such a consensus evaluation
approach, the consensus evaluation is controlling, and the fact that there
may be inconsistencies among the individual evaluators' findings is
irrelevant in assessing the reasonableness of the overall evaluation. See
LB&B Assocs., Inc., B-281706, Mar. 24, 1999, 99-1 CPD para. 74 at 6.