TITLE:  ABIC Ltd., B-286460, January 12, 2001
BNUMBER:  B-286460
DATE:  January 12, 2001
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ABIC Ltd., B-286460, January 12, 2001

Decision

Matter of: ABIC Ltd.

File: B-286460

Date: January 12, 2001

Kurt M. Rylander, Esq., for the protester.

Lafayette N. Johnson, Esq., and Paul D. Metrey, Esq., Federal Emergency
Management Agency, for the agency.

Paul E. Jordan, Esq., David A. Ashen, Esq., and John M. Melody, Esq., Office
of the General Counsel, GAO, participated in the preparation of the
decision.

DIGEST

Protest of exclusion of protester's proposal from the competitive range is
denied where the evaluation was conducted in accordance with the evaluation
criteria announced in the solicitation, and the record supports the
evaluators' conclusions and provides no evidence of bias.

DECISION

ABIC, Ltd., doing business as femaINSPECTOR.com, protests the elimination of
its proposal from the competitive range under request for proposals (RFP)
No. EMW-2000-RP-0018, issued by the Federal Emergency Management Agency
(FEMA) for inspection services in disaster areas. ABIC contends that its
proposal was improperly eliminated based on an unreasonable, biased
evaluation.

We deny the protest.

BACKGROUND

Pursuant to the Disaster Relief and Emergency Assistance Act, 42 U.S.C.
sect. 5221 et seq. (1994), FEMA is authorized to provide assistance to
applicants for grants in presidentially declared disasters and emergencies.
Once a disaster is declared, affected persons are instructed to apply for
assistance. Their applications are then forwarded to contractor inspectors
who collect information on disaster-related expenses, which will enable the
agency to determine the type and amount of disaster assistance to which
applicants are entitled. The RFP contemplated the award of two or more
indefinite-quantity, fixed-price contracts, for a 1-year base period, with
4 option years. Offerors were required to submit a "limited written
technical proposal," and to make an oral presentation (required in lieu of a
detailed written technical proposal), which were to be based on two
scenarios, one mandatory and one optional. [1]

Award was to be made to the offerors whose proposals were considered most
advantageous to the government based upon technical and price factors, with
technical factors significantly more important than price. RFP sect. M.2.
The following technical factors and subfactors were specified (with weights,
on a scale of 100 possible points): (1) technical approach and
understanding, 40 points (including phase-in (5 points), operations (20
points), and quality control (15 points)); (2) corporate experience
(5 points) and past performance (20 points); (3) staffing and key personnel,
15 points; (4) cultural diversity and customer service, 15 points; and
(5) small, disadvantaged business participation, 5 points). RFP sect. M.4.

Eight offerors, including ABIC, submitted written proposals and subsequently
made oral presentations. The source evaluation board (SEB) evaluated the
initial written proposals and the oral presentations for scenario No. 1 as
follows:

 Offeror    Technical Score   Adjectival Rating

 Offeror    92                Superior
 1

 Offeror    88                Superior
 2

 Offeror    85                Superior
 3

 Offeror    77                Acceptable
 4

 Offeror    75                Acceptable
 5

 Offeror    72                Unacceptable but
 6                            susceptible

 Offeror    59                Unacceptable but
 7                            susceptible

 ABIC       27                Unacceptable

Contracting Officer's Statement at H. Based on the initial evaluation and
recommendation of the SEB, the proposals of Offeror 7 and ABIC were excluded
from the competitive range. [2] After receiving a written debriefing, ABIC
filed this protest with our Office.

ABIC asserts that the competitive range determination was flawed because it
was based on an erroneous and biased technical evaluation. ABIC specifically
challenges each of the evaluated weaknesses in its proposal.

The determination of whether a proposal is in the competitive range is
principally a matter within the discretion of the procuring agency. Dismas
Charities, Inc., B-284754, May 22, 2000, 2000 CPD para. 84 at 3. Federal
Acquisition Regulation (FAR) sect. 15.306(c) allows an agency to establish a
competitive range consisting of only the most highly-rated proposals. Our
Office will review an agency's evaluation of proposals and determination to
exclude a proposal from the competitive range for reasonableness and
consistency with the criteria and language of the solicitation. FAR
sect. 15.305(a); Novavax, Inc., B-286167, B-286167.2, Dec. 4, 2000, 2000 CPD para.
202 at 13; SDS Petroleum Prods., Inc., B-280430, Sept. 1, 1998, 98-2 CPD
para. 59 at 4.

Based on our review, we find that the evaluation and the resulting decision
to exclude ABIC's proposal from the competitive range were reasonable. The
agency has provided detailed responses to the protester's allegations which
support the assessment of the contracting officer that "even with extensive
revision, [ABIC's] proposal would not have a reasonable opportunity for
selection." Agency Report (AR), Tab 21. We address the most significant
areas of the evaluation below. [3]

OPERATIONS SUBFACTOR

ABIC challenges its score of 4 (of 20 possible) points under the operations
subfactor of the technical approach and understanding factor (under which
its proposal received an overall 9 (of 40 possible) points. In this regard,
the agency viewed as weaknesses ABIC's proposal to have FEMA make inspection
appointments at the time applicants applied for assistance and ABIC's
proposed process for handling priority and remote inspections. In ABIC's
view, these evaluations were unwarranted because it proposed FEMA's
involvement in making appointments only as a "goal," and only with FEMA's
agreement, and it clearly explained its priority and remote inspection
process.

Scheduling

The performance work statement (PWS) provides that the contractor will be
responsible for scheduling appointments for damage inspections. RFP
sect. C.8.8.1. ABIC's written proposal and oral presentation nevertheless
indicated that [deleted]. ABIC characterizes this as simply an alternative,
and asserts that its inspectors otherwise will make the appointments as
required. However, nowhere in its written or oral proposals does it state
that its inspectors will perform this function if FEMA does not approve of
ABIC's proposed plan; the only specific discussion in its proposal with
respect to appointments not made by [deleted] places the responsibility on
[deleted]. Oral Presentation Transcript (Tr.) at 86, 100. While ABIC asserts
that the agency should have assumed that it was willing to comply with the
PWS requirement that the contractor schedule appointments, ABIC's failure
even to acknowledge the PWS requirement in its proposal reasonably was
viewed as calling into question the firm's commitment to comply with the
specifications in this regard, and therefore reasonably was rated a
weakness.

Priority and Remote Inspections

The PWS required that inspections designated by FEMA as priority be
completed and reported within 24 hours of notification and that inspections
in remote areas be completed within an average of 72 hours. RFP sect.sect. C.8.7.2,
C.8.7.3. ABIC proposed that its [deleted] would be responsible for these
inspections. However, as noted by the agency, these [deleted] also were to
have a number of additional responsibilities under ABIC's proposal,
including [deleted]. Contracting Officer's Statement at 18-19. FEMA
concluded that ABIC had proposed insufficient [deleted] and that, given the
unrealistic workload assigned each [deleted], it was unclear how priority
and remote inspections would be successfully performed. We find nothing
unreasonable in FEMA's conclusion that ABIC's approach regarding the
[deleted] responsibilities would have a negative impact on priority and
remote inspections. Accordingly, the agency's downgrading of ABIC's proposal
in this area was unobjectionable. [4]

CORPORATE EXPERIENCE AND PAST PERFORMANCE

The RFP advised offerors that their corporate experience would be evaluated
with regard to inspection services of a nature similar to the work described
in the RFP, with jobs of similar size, scope, complexity, contract type, and
period of performance being of particular interest. Past performance was to
be evaluated, in part, using questionnaires from up to four references for
projects of a comparable or related nature and complexity to the RFP. RFP
sect. L.13 at L-11, sect. M.4 at Factor 2. ABIC's proposal received a score of 9 (of
25 possible) points under the corporate experience and past performance
factor based on the agency's finding of limited corporate experience,
including a lack of experience with mobilizations of a similar magnitude,
and the fact that a predecessor firm was "pulled off" of a task due to
performance problems. AR, Tab 19, at 40. ABIC asserts that the evaluation in
this regard was unwarranted because no offeror possesses experience with a
requirement similar in magnitude to scenario No. 1; its own prior experience
in fact is "identical" in nature to that in the RFP, with the only
difference being in the replacement of manual data collection methods with
electronic methods; and its one instance of poor performance occurred 18
years ago. Protest at 18; Comments

at 15-16.

The agency reasonably determined that ABIC's written and oral proposals did
not provide evidence of corporate experience and past performance sufficient
to warrant a higher score. For its corporate experience, ABIC, which had
been organized less than 4 months at the time of proposal submission, cited
the experience of predecessor firms apparently controlled by ABIC's
principal or in which its principal had been a partner. Although this work
was somewhat similar in nature to the work contemplated here, it was not
similar in magnitude or scope to the scenario No. 1 requirement (450,000
total inspections at rates of 5,000-7,500 per day). While this weakness was
assessed against every proposal, we note that the values of the contracts
ABIC cited in its written proposal were only [deleted], amounts
insignificant in the context of the requirement here, for which it proposed
a price of $126 million (for scenario No. 1). In any case, ABIC's lack of
comparable experience and past performance went beyond the scope and size of
the requirements. Specifically, none of the four contracts cited by ABIC in
its written proposal was recent; the most recent was completed in 1993,
while the other three apparently were completed in 1992, 1982, and 1980.
Further, ABIC's experience involved primarily manual, written data
collection methods, rather than use of the electronic data collection
methods--including the Automated Construction Estimation system and handheld
computers--required under the RFP. RFP sect.sect. C.1.4, C.6.2, C.8.8.6. Moreover,
ABIC's experience was on contracts where FEMA had directed the contractor to
provide a specified number of inspectors and supervisors, within a defined
period of time, at specific locations; here, in contrast, the RFP required
the contractor to manage the effort and achieve the contract performance
requirements with limited FEMA direction. The agency reasonably concluded
that these prior contracts were not similar to this procurement.

ABIC's past performance evaluation was based on three past performance
questionnaires submitted by ABIC's references, all of which concerned
performance by predecessor firms with which ABIC's principal was associated.
Based on these references, the contracting officer found that ABIC had
"performed overall in an acceptable manner in the past [with] [f]avorable
and some less than favorable comments." AR, Tab 18 at 1. While ABIC
questions the agency's consideration of the fact that a predecessor firm had
been "pulled off" of a task 18 years ago due to performance problems, we
note that ABIC itself considered that contract sufficiently relevant to list
it in its proposal, and that ABIC itself disclosed the fact that the
predecessor firm was pulled off the task. Proposal at 11. Given ABIC's
reliance on the contract in its proposal, it was reasonable for the agency
to consider aspects of poor performance under it. Overall, in view of ABIC's
lack of any corporate experience of its own, the limited nature and
remoteness in time of the experience and performance of the predecessor
firms with which its principal was associated, and the responses to the past
performance questionnaire, we find that the evaluation of ABIC's proposal
under this factor was reasonable. [5]

STAFFING AND KEY PERSONNEL

ABIC challenges the evaluation under the staffing and key personnel factor,
under which its proposal received a score of 2 (of 15 possible) points. In
this regard, FEMA viewed as weaknesses ABIC's failure to identify the
majority of its proposed staff and key personnel, and the fact that the
staff and key personnel who were identified had never been tested under a
contract as challenging as this requirement. In ABIC's view, its proposal
should have received higher scores based on the [deleted] rï¿½sumï¿½s it
submitted for key staff, and ABIC's proposal to recruit additional staff
from the incumbent contractors.

The evaluation under the staffing and key personnel factor was reasonable.
The RFP required offerors to submit a draft staffing plan that included
descriptions of the offeror's management systems and organizational
structure; staff qualifications, lines of authority and supervision and
staffing procedures; the project director's corporate position and contract
authority; the number, experience, qualifications and skills mix of all
proposed staff; rï¿½sumï¿½s and statements of relevant experience with
comparable operations for key personnel and others responsible to the
project manager; and the percentage time commitments of staff. RFP sect. L.13 at
L-12, sect. M.3 at Factor 3. Instead of providing this level of detail for each
proposed position, ABIC's proposal identified an individual for only one of
the [deleted] key proposed positions--the [deleted]--and only four
individuals (including the [deleted]) of a proposed [deleted] member
[deleted] team. As for the [deleted] key staff rï¿½sumï¿½s submitted by ABIC,
other than the [deleted] team, there was no indication, in either the
written or oral proposal, of the role the individuals were to play in the
performance of the contract. In any case, as noted by the agency, even if
all [deleted] of these individuals were considered part of the [deleted]
team, ABIC failed to identify individuals to fill the majority of the
identified team positions. Further, although ABIC stated that it planned to
recruit the balance of its key staff from incumbents, its proposal did not
identify specific incumbent personnel or explain how it planned to obtain
their services.

The experience and capability reflected in the [deleted] rï¿½sumï¿½s were also
reasonably found to be inadequate. With the exception of the [deleted], the
agency asserts, and our review confirms, that the rï¿½sumï¿½s did not contain
any indication that the individual had worked, managed, supervised or
provided logistical support with respect to any project close to the
magnitude of scenario No. 1. Indeed, only a few proposed staff appeared to
possess recent management experience with respect to claims adjustment.
Given ABIC's failure to identify the majority of its proposed key personnel,
its failure even to indicate what positions [deleted] of the [deleted] staff
for whom it submitted rï¿½sumï¿½s were to fill, and the relative inexperience of
the proposed staff, there is no basis to question the SEB's downgrading of
ABIC's proposal in this area.

BIAS

ABIC attributes its low evaluation scores and elimination from the
competitive range to the alleged bias of two individuals it claims were
members of the SEB--the FEMA project monitor and the contracting officer for
a prior inspection services contract under which [deleted] (one of the
predecessor firms for which ABIC's principal was the managing partner) filed
a claim against FEMA for additional work performed. ABIC claims that, as a
result of the actions and statements of the former project monitor and
contracting officer, including memoranda described by ABIC as "smoking
gun[s]," [deleted] was able to obtain a favorable settlement of the "hotly
contested" matter. Comments at 4-5. ABIC concludes that, as a result of
their involvement in this matter, they were biased against ABIC, and this
affected their evaluation of ABIC's proposal.

Government officials are presumed to act in good faith; we will not
attribute unfair or prejudicial motives to procurement officials on the
basis of inference or supposition. Triton Marine Constr. Corp., B-250856,
Feb. 23, 1993, 93-1 CPD para. 171 at 6. Further, where a protester alleges bias,
it not only must provide credible evidence clearly demonstrating a bias
against the protester or for the awardee, but also must demonstrate that
this bias translated into action that unfairly affected the protester's
competitive position. Advanced Sciences, Inc., B-259569.3, July 3, 1995,
95-2 CPD para. 52 at 17.

ABIC has furnished no evidence to support its allegations; it merely infers
bias based on its assumption that the two agency officials resented
[deleted] pursuit of its cost claim and improperly skewed the evaluation
against ABIC based on that resentment. Contrary to ABIC's allegation, the
record indicates that the former contracting officer was not an SEB member
and played no part in the evaluation of ABIC's proposal; rather, he simply
reviewed a proposed procurement plan and draft RFP for the current
procurement. [6] Although the former project monitor was a member of the
SEB, he has denied any bias, improper motive, prejudice, or favoritism for
or against any offeror, including ABIC (or its principal). Declaration
at para. 5. He specifically denies that the litigation was "emotionally
charged," or that he was personally embarrassed or suffered any
repercussions as a result of his involvement in the litigated matter.
Declaration at para.para. 10-11. He further denies having any authority or influence
over the other SEB members. Declaration at 6-7. Likewise, the other members
of the SEB submitted declarations averring that they independently arrived
at their own evaluation conclusions prior to the consensus meeting of the
SEB, and that the SEB consensus finding that ABIC's proposal was technically
unacceptable represented the unanimous agreement of the SEB members. AR,
Tab 24. We conclude that ABIC has presented no evidence that the identified
individuals were motivated by bias against ABIC.

In any event, even if bias were apparent, as indicated above, the ultimate
inquiry is whether any bias translated into action that unfairly affected
the protester's competitive position in the procurement. In this regard, the
mere fact that evaluators or source selection personnel may have been
involved adversarially with competing offerors in past procurements, without
more, does not establish that the agency acted out of bias against an
offeror. See, e.g., Arctic Slope World Servs., Inc., B-284481, B-284481.2,
Apr. 27, 2000, 2000 CPD para. 75 at 12-13 (evidence that contracting officer did
not expeditiously handle protester's claims under incumbent contract and
held negative views regarding the protester's past performance, did not
indicate bias); TEAM Support Servs., Inc., B-279379.2, June 22, 1998, 98-1
CPD para. 167 at 6 (project officer's disagreement with protester over contract
administration matters under prior contract did not show that the officer
was biased against protester during evaluation in current procurement);
Southern California Eng'g Co., Inc., B-232390, Oct. 25, 1988, 88-2 CPD para. 391
at 3 (alleged disparate actions in prior procurements are not evidence that
agency failed to act in good faith in protested procurement). Here, any
alleged bias notwithstanding, the merits of ABIC's proposal support the
agency's conclusion that the proposal was technically unacceptable. [7]

The protest is denied.

Anthony H. Gamboa

Acting General Counsel

Notes

1. The mandatory scenario (No. 1) was based on hurricane damage requiring
450,000 inspections to be performed as follows: "While maintaining an
average turn around time of 72 hours, the Contractor shall produce 5,000
inspections per day within the first 7 calendar days after the date of the
[task order] Briefing, and 7,500 inspections per day by the 14th calendar
day following the Briefing and continue at 7,500 inspections per day, on
average, until the required number of inspections falls below the required
level." RFP sect. J, attach. 14. The optional scenario (No. 2) assumed a
hurricane resulting in the need for an estimated 800,000 inspections, which
were to be performed at a minimum rate of 10,000 per day. Id.

2. None of the proposals was included in the competitive range for optional
scenario No. 2.

3. While ABIC provided separate written proposals and oral presentations for
each of the scenarios, there was little substantive difference between the
proposals and presentations and the evaluations thereof. Thus, we do not
separately address the evaluation of scenario No. 2.

4. Although ABIC's oral presentation indicated that there would be two
[deleted] per team (Oral Presentation Tr. at 46), its written proposal
indicated a ratio of one [deleted] to each team (Proposal at 3). FEMA
determined that either ratio was inadequate in view of the numerous
responsibilities assigned to its [deleted].

5. ABIC contends that the agency was required by FAR sect. 15.306(b) to discuss
with ABIC its adverse past performance record. This argument is without
merit. First, by its terms, FAR sect. 15.306(b)(1)(i) requires discussions only
with offerors "whose past performance information is the determining factor
preventing them from being placed in the competitive range." Here, ABIC's
elimination from the competitive range was due to low evaluation scores
under all factors; past performance was not the determinative factor.
Second, it is clear that ABIC was not prejudiced by the lack of discussions
with respect to its past performance; in this regard, the protester has made
no showing in its protest submissions that the agency's evaluation judgments
did not accurately reflect its prior relevant performance. Furthermore, even
if ABIC's proposal received the maximum points for this factor--which
appears unlikely given the apparently unalterable nature of the identified
weakness--its total score would increase only to 43 points, some 29 points
below the score of the lowest-ranked offeror in the competitive range.

6. Indeed, the former contracting officer declined to complete a past
performance questionnaire because of the 6-year lapse since he had worked
with ABIC's principal. Instead, he simply noted that the principal had filed
some claims for "extras," but had "work[ed] hard to get the job done." AR,
Tab 18 at 27. While ABIC asserts that these comments were not uniformly
positive, we find no evidence of bias in them.

7. ABIC also claims that it was prejudiced by the agency's "last minute
change in the oral presentation procedures" (Comments at 7) when the agency
advised ABIC during the oral presentation that any clarification questions
would be limited to matters raised in the oral presentation. The RFP clearly
provided that the oral presentation was to be "in lieu of detailed written
proposals" and that clarification questions would be limited to points
addressed in the presentation. RFP sect. L.13.B.b. To the extent ABIC thought
that the RFP was ambiguous and allowed for a presentation that simply
supplemented its written proposal and at which it could solicit and answer
any of the agency's proposal questions, it was required to protest any
alleged solicitation impropriety prior to the closing date. Bid Protest
Regulations, 4 C.F.R. sect. 21.2(a)(1) (2000).