TITLE:  Northwest Procurement Institute, Inc., B-286345, November 17, 2000
BNUMBER:  B-286345
DATE:  November 17, 2000
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Northwest Procurement Institute, Inc., B-286345, November 17, 2000

Decision

Matter of: Northwest Procurement Institute, Inc.

File: B-286345

Date: November 17, 2000

Patrick Shields for the protester.

Terrence J. Tychan, Department of Health and Human Services, for the agency.

Guy R. Pietrovito, Esq., Office of the General Counsel, GAO, participated in
the preparation of the decision.

DIGEST

The agency's exclusion of the protester's proposal from the competitive
range was reasonable where the proposal was reasonably determined not to be
one of the most highly rated.

DECISION

Northwest Procurement Institute, Inc. protests the exclusion of its proposal
from the competitive range and award of a contract to Business Management
Research Associates, Inc. (BMRA) under request for proposals (RFP) No.
RFP-17-00-HHS-OS, issued by the Department of Health and Human Services
(HHS) for training services.

We deny the protest.

The RFP provided for the award, on a cost/technical tradeoff basis, of a
task order, level-of-effort contract for training of agency procurement
personnel and program project officers for a base year with four 1-year
options. The RFP listed the acquisition training courses and project officer
courses that had been provided as classroom instruction in prior years by
the agency. Offerors were informed that the agency preferred to receive
web-based instruction for the acquisition courses; the project officer
courses would be provided by way of classroom instruction.

The following technical evaluation factors and associated point values were
identified:

 Factor                 Maximum Points

 Personnel capability   30

 Technical approach     10

 Management             10
 capability

 Past performance       50

Offerors were instructed to propose the acquisition training courses using
one or more of the following listed delivery options, stated in descending
order of preference:

  1. Commercial, off-the-shelf, web-based courses that have been reviewed by
     the American Council on Eduction's (ACE) College Recommendation
     Service, or similar service, and are comparable to college-level
     courses and may be used as transfer credits at many participating
     colleges and universities.
  2. Commercial, off-the-shelf traditional classroom courses that have been
     reviewed by the ACE's College Recommendation Service, or similar
     service, and are comparable to college-level courses and may be used as
     transfer credits at many participating colleges and universities.
  3. Commercial, off-the-shelf traditional classroom courses.
  4. The HHS courses listed in RFP section C delivered by traditional
     classroom instruction.

The RFP required offerors to indicate under which delivery preference group
or groups the offeror was proposing. [1]

The followng method of evaluating offers for the various delivery
preferences was stated:

The 1st preference group will be evaluated first and if the contracting
officer determines that an adequate number of proposals are most highly
rated for inclusion in the competitive range, then an evaluation of
government preference options #2, 3 and 4 will NOT be undertaken. However,
if the contracting officer determines not enough proposals in that
preference group have been submitted to represent efficient competition,
then the most highly rated proposal(s) will be retained, and evaluation of
the 2nd preference group will proceed. If it is again determined that not
enough proposals in the 2nd group, in combination with those retained from
the 1st group, are highly rated enough to represent efficient competition,
then evaluation of the 3rd preference group shall be conducted. Evaluation
of the 4th preference group shall only occur if after evaluation of the 3rd
group, the contracting officer determines that not enough proposals from
that group in combination with those retained from the 1st and 2nd group's
proposals, are highly rated enough to represent efficient competition. This
process will conclude at any point the contracting officer feels enough
highly rated proposals have been found to conduct an efficient competition.
Should the government decide to conduct discussions, only those most highly
rated proposals retained from the preference groups at whatever point
efficient competition was represented will be included.

RFP sect. M, at 66.

HHS received three offers, including those of Northwest and BMRA. Northwest
proposed to provide the acquisition courses only under the first delivery
option for commercial, off-the-shelf, web-based training, the only offeror
to do so; BMRA and other offeror proposed under the second delivery option
for commercial, off-the-shelf, classroom training.

Consistent with the RFP, Northwest's proposal was evaluated first. As a
result of this evaluation, HHS asked Northwest whether the web-based courses
it was proposing were ACE accredited and requested that Northwest provide
HHS with access to a web-based course for demonstration purposes. Northwest
responded that access to a web-base course was not currently available,
given that Northwest was still "in the process of implementing its web-based
training programs and is working with webmasters to make these programs
fully operational." Northwest also informed HHS that it did not yet have ACE
accreditation, that ACE "[is] just beginning to implement its review process
for web-based [Government contracting] training programs," and that "the
review of web-based delivery methods could be accomplished prior to fiscal
year end." Agency Report, Tab 2A, Letter from Northwest to HHS, Aug. 9,
2000, at 1.

The contracting officer decided to evaluate BMRA's and the other offeror's
proposals. The three proposals received the following evaluation scores: [2]

 Factor                 BMRA           Offeror C     Northwest

 Personnel              29             28            20
 qualification

 Technical approach     9              9             5

 Management             9              9             7
 capability

 Past performance       42             50            21

 TOTAL                  89             96            54

The evaluation board's scoring was supported by detailed narratives
describing the relative strengths and weaknesses of the offers under each of
the evaluation factors. [3] The contracting officer determined that
Northwest's proposal did not have a reasonable chance of being selected for
award and excluded Northwest's proposal from the competitive range.
Discussions were conducted with BMRA and Offeror C, and final proposal
revisions received. Award on a cost/technical tradeoff basis was made to
BMRA. Following a debriefing, Northwest protested to our Office.

Northwest objects to the exclusion of its proposal from the competitive
range, arguing that its proposal under the first delivery option should have
been selected for award without consideration of BMRA's and the other
offoror's proposals under the second delivery option. [4] In the protester's
view, Northwest established its ability to provide web-based training and
therefore HHS should not have evaluated offers under the delivery options
that the RFP stated were of lower preference. Northwest also argues that if
HHS believed that its proposal under the web-based training delivery option
was not acceptable, the agency should have considered its proposal as
offering the second (classroom-based) delivery option. Northwest also
complains that HHS simply averaged the scores of the evaluators in assessing
the merits of the proposals.

In reviewing protests challenging the evaluation of proposals and exclusion
of proposals from a competitive range, we do not conduct a new evaluation or
substitute our judgment for that of the agency but examine the record to
determine whether the agency's judgment was reasonable and in accord with
the RFP evaluation criteria. Abt Assocs., Inc., B-237060.2, Feb. 26, 1990,
90-1 CPD para. 223 at 4. In order for us to review an agency's evaluation
judgment, an agency must have adequate documentation to support its
judgment. Southwest Marine, Inc.; American Sys. Eng'g Corp., B-265865.3,
B-265865.4, Jan. 23, 1996, 96-1 CPD para. 56 at 10. While point scores are
useful as guides to decision-making, they must be supported by documentation
of the relative differences between proposals, their strengths,
deficiencies, weaknesses and risks. Federal Acquisition Regulation (FAR)
sect. 15.305(a); Century Envtl. Hygiene, Inc., B-279378, June 5, 1998, 98-1 CPD
para. 164 at 4.

Here, the record fully supports the agency's judgment of the relative merits
of Northwest's proposal in relation to the offers found to be in the
competitive range. That is, the proposals were evaluated in accordance with
the solicitation evaluation factors, and the agency's judgment documented in
detailed narrative statements that weighed the respective strengths and
weaknesses of the offers. Contrary to the protester's arguments, the agency
did not mechanically average point scores to exclude Northwest's proposal
from the competitive range. Rather, the record establishes that the
contracting officer, an evaluation board member, was aware of the strengths
and weaknesses of Northwest's proposal.

The record also supports HHS's assessment of Northwest's web-based offer.
The RFP sought commercial, off-the-shelf, web-base training. Northwest's
proposal and response to the agency's inquiries made clear, however, that
the protester did not have off-the-shelf, web-based training to offer. That
is, Northwest was still in the process of developing its web-based training
courses. The agency reasonably concluded that the protester was not offering
off-the-shelf, web-based training, as envisioned by the first delivery
preference.

Given Northwest's failure to offer off-the-shelf web-based training, we find
no merit to Northwest's complaint that its proposal under the first delivery
option should have been selected for award without consideration of BMRA's
and the other offeror's proposals under the second delivery option.
Moreover, the RFP provided that the agency would limit its evaluation to
first delivery option offers only where the agency received "an adequate
number" of highly rated offers under that option. Here, Northwest's
proposal, which was not highly rated, was the only one offering web-based
training. We think that the contracting officer properly decided to evaluate
the second delivery option offers.

We also do not agree that the agency was required to evaluate Northwest's
proposal as offering traditional classroom instruction. The RFP required
offerors to identify under which delivery option or options the offerors
were proposing. Northwest proposed only under the web-based training option,
although the RFP permitted Northwest to offer any number of options.

From our review of the record, we find that the contracting officer
reasonably determined to exclude Northwest's proposal from the competitive
range. FAR sect. 15.306(c)(1) directs contracting officers to establish a
competitive range that is comprised of all the most highly rated proposals
(unless the range is further reduced for purposes of efficiency, if such
efficiency is provided for by the solicitation). The determination of
whether a proposal is in the competitive range is principally a matter
within the reasonable exercise of discretion of the procuring agency, which
we will question only if the agency's judgment is shown to be unreasonable
or inconsistent with the evaluation criteria. Ervin & Assocs., Inc.,
B-280993, Dec. 17, 1998, 98-2 CPD para. 151 at 3.

Here, Northwest's proposal was substantially lower-rated than the other
offerors' proposals under every evaluation factor. Under the most important
past performance factor, Northwest received only 21 of 50 possible points,
while BMRA and the other offer received 50 and 42 points respectively.
Northwest has not challenged its or the other offerors' ratings under the
past performance factor (nor any factor other than the technical approach
factors, which was worth only 10 points). In the absence of a reasoned
challenge to the agency's evaluation of Northwest's proposal or the other
offerors' proposals, there is no basis to question the agency's judgment
that Northwest's proposal was not among the most highly rated or that
Northwest's proposal had no reasonable chance of being selected for award.
Northwest's protest is nothing more than mere disagreement with the agency's
exercise of its discretion that the protester's proposal should be excluded
from the competitive range.

The protester also complains that HHS failed to timely notify Northwest of
its exclusion from the competitive range. FAR sect. 15.503(a) requires
contracting officers to promptly notify offerors when their proposals are
excluded from the competitive range. Although HHS could more promptly have
notified Northwest of its exclusion from the competitive range, this
procedural defect does not provide us with any basis to question the
agency's evaluation of proposals or selection decision. E&T Elecs., Inc.,
B-238099.2, July 10, 1990, 90-2 CPD para. 24 at 8. In any event, the protester
was not prejudiced by any delay in pursuing its protest, given our decision
denying its challenge to the exclusion of its proposal from the competitive
range. Criterion Corp., B-266050, Jan. 23, 1996, 96-1 CPD para. 217 at 5 n.1.

Northwest also complains that the agency failed to suspend performance of
the contract until the resolution of Northwest's protest. As amended, the
Competition in Contracting Act of 1984 provides that if the contracting
agency receives notice of a protest filed with our Office within 10 days of
the date of award of a contract or within 5 days of the date of a requested
and required debriefing, the agency must stay the award of the contract or
suspend performance of the contract, unless a written determination allowing
performance is approved by the head of the contracting activity. 31 U.S.C. sect.
3553(d)(3) (1994). Here, however, Northwest did not protest within 10 days
of the date of award or within 5 days of its debriefing. Consequently, HHS
was not required to suspend performance of the contract pending our
resolution of the protest.

The protest is denied. [5]

Anthony H. Gamboa

Acting General Counsel

Notes

1. Offerors were also informed that they were not allowed to offer courses
using a mix of delivery preferences, for example, a mix of web-based and
classroom-based training courses.

2. The point scores were calculated by averaging the individual scores of
the evaluators.

3. The evaluation narratives are source selection sensitive information that
was not provided to the protester. No protective order was issued in
connection with this protest because the protester proceeded pro se. We
reviewed, however, the evaluation narratives in camera in resolving
Northwest's protest.

4. Northwest also challenges the composition of the evaluation board, which
consisted of four evaluators including the contracting officer/source
selection official. The composition of a technical evaluation panel is
within the discretion of the contracting agency, which we will question only
upon evidence of bad faith, conflict of interest, or bias. Xeno Technix,
Inc., B-278738, B-278738.2, Mar. 11, 1998, 98-1 CPD para. 110 at 6. Northwest
has provided no such evidence here. In any event, we do not find that
including the source selection official on the evaluation panel is per se
improper, as Northwest suggests.

5. Northwest also complains that HHS did not respond to Northwest's Freedom
of Information Act (FOIA) request for information related to this
procurement. Our Office has no authority to determine what information an
agency must disclose in connection with a party's request to an agency under
FOIA. The protester's recourse in this regard is to pursue the disclosure
under the remedies provided by FOIA. LNM Corp., B-247669, Apr. 29, 1992,
92-1 CPD para. 405 at 2.