TITLE: W R Systems, Ltd., B-287477; B-287477.3, June 29, 2001
BNUMBER: B-287477; B-287477.3
DATE: June 29, 2001
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W R Systems, Ltd., B-287477; B-287477.3, June 29, 2001
Decision
Matter of: W R Systems, Ltd.
File: B-287477; B-287477.3
Date: June 29, 2001
John A. Howell, Esq., and Anne K. Shukis, Esq., Squire, Sanders & Dempsey,
for the protester.
J. Michael Sawyers, Esq., Drug Enforcement Administration, for the agency.
Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Contention that contracting officer's (CO) decision to reject initial
evaluations and convene a new technical evaluation panel was designed to
ensure that the protester was improperly eliminated from consideration is
denied, where there is no evidence in the record that the CO's decisions
were not made in good faith or that they were designed with the intent of
changing technical rankings or avoiding an award to the protester.
2. Allegation that protester was prejudiced because in preparing its
proposal it assumed that offerors were prohibited from proposing certain
individuals as core personnel on the basis of their work history is denied
where the solicitation did not impose any restrictions, limits, or
prohibitions on the individuals that could be proposed to fill the required
core positions due to their prior work.
3. Protest challenging agency's evaluation of awardee's past performance is
denied where the record shows that the evaluation was reasonable and
consistent with the evaluation criteria set forth in the solicitation.
DECISION
W R Systems, Ltd. (WRS) protests the award of a contract to Comprehensive
Technologies, Inc. (CTI) under request for proposals (RFP) No.
DEA-00-R-0013, issued by the Drug Enforcement Administration (DEA) for
monitoring, translation, transcription, linguistic data analysis, and
technical support services. WRS challenges the award on several grounds,
including that DEA: (1) unreasonably decided to reject the initial
evaluations and convene an entirely new evaluation panel; (2) failed to
downgrade CTI's proposal for proposing personnel it could not deliver or who
were ineligible to work on the contemplated contract; and (3) improperly
evaluated CTI's past performance.
We deny the protest.
BACKGROUND
DEA's primary mission is to enforce narcotics laws and bring to justice
organizations and individuals involved in growing, manufacturing, or
distributing controlled substances destined for the illegal drug traffic in
the United States and its territories. DEA's mission requires that DEA
target and aggressively seek to prosecute persons and organizations involved
in criminal activities. One key tool DEA uses in its mission is judicially
authorized communication intercepts, which present some obstacles for DEA.
For example, in some cases, the intended surveillance targets often
communicate in different foreign languages and dialects. To address its
operational needs, DEA must have at its disposal personnel with the ability
to understand and reliably, quickly, and accurately translate and transcribe
all of the detected communications. The procurement at issue here is to
obtain personnel capable of monitoring, transcribing, translating,
reviewing, and analyzing investigative documents involving both domestic and
foreign communications in various foreign languages.
The RFP, issued on April 14, 2000, contemplated the award of an
indefinite-delivery/indefinite-quantity contract for a base year with up to
four 1-year option periods. Offerors were required to submit proposals in
separate volumes--a technical proposal and a business management proposal.
For each contract period, offerors were required to submit unit and extended
hourly labor rates for estimated quantities of 12 different labor
categories, described in the RFP as either "core" or "non-core" personnel.
RFP amend. 4, sect. B; amend. 3 para.para. C.9.2, C.9.2.1, at 35. The RFP listed the
following evaluation factors (maximum possible number of points for each
factor shown in parentheses): furnishing qualified personnel (35), quality
control plan (25), management plan (10), subcontracting plan (10), and past
performance/risk assessment (20), for a maximum possible total of 100
points. Although price was not to be numerically scored, the RFP explained
that its degree of importance would increase as proposals were considered
equal in relation to technical factors. The RFP stated that technical
factors combined were substantially more important than price. Award was to
be made on the basis of the proposal deemed to represent the best value to
the government.
Nine firms responded to the RFP by the time set on June 21 for receipt of
proposals. On July 10, the agency convened a technical evaluation panel
(TEP) to evaluate technical proposals. That panel completed its evaluation
and submitted its report to the contracting officer (CO) on July 20. The CO
explains that based on her personal experience with several offerors on
similar acquisitions, she determined that the TEP's evaluation was
inadequate. In her opinion, the scores were not in line with historic scores
these firms had earned under prior acquisitions for similar services. CO
Statement, Apr. 26, 2001, at 4. Accordingly, the CO set aside the initial
TEP's evaluations and convened a new panel to reevaluate proposals.
Based on the results of the evaluations by the new TEP, the agency excluded
three proposals from further consideration, established a competitive range
comprised of the remaining six proposals, conducted discussions with the six
firms whose proposals were included within the competitive range, and
requested and received final proposal revisions (FPR). The TEP reevaluated
proposals based on FPRs, with the following final results:
Pers. Qual. Mgmt. Sub. Past Total Price
Perf.
Cont. Plan Plan Score
CTI 33 24 7 9 18 91 $26,872,408
A 33 24 8 8 16 89 28,616,442
WRS 33 22 9 8 20 92 29,399,225
B 33 23 9 9 19 93 30,154,638
C 33 23 9 9 16 90 30,635,358
D 32 22 9 9 15 87 31,442,927
Agency Report (AR) exh. 6, Final Technical Evaluation Report, Jan. 31, 2001;
exh. 8 Price Analysis.
The CO awarded the contract to CTI based on these final results. AR exh. 9,
Source Selection, Mar. 12, 2001 (Revised). This protest followed a
debriefing.
PROTESTER'S CONTENTIONS
WRS challenges the CO's decision to reject the initial TEP's evaluation and
convene an entirely new panel to evaluate proposals. WRS also contends that
the TEP should have downgraded CTI's offer because it proposed personnel
that CTI could not deliver, and because some of the individuals CTI proposed
to fill core positions are ineligible to work on the contract. The protester
also argues that DEA improperly ignored instances of CTI's poor past
performance on other DEA contracts for similar services. [1]
DISCUSSION
Initial Evaluations and New TEP
The initial TEP completed its evaluation and submitted a report to the CO in
July 2000. Under this initial evaluation, with the exception of WRS's
proposal which earned 83 points, the scores ranged from 0 to 58 points;
CTI's technical proposal earned a total of 56 points. Competitive Range,
Nov. 15, 2000, at 1.
Upon reviewing the initial TEP's evaluations, the CO determined that "[m]any
of these companies have previously submitted [proposals] under other
solicitations for the same or similar requirement and received higher
scores." Id. at 2. Accordingly, the CO rejected the TEP's initial evaluation
and convened a new panel. This new panel completed its evaluation and
reported its findings to the CO in January 2001. AR exh. 6, Final Technical
Evaluation Report, supra.
WRS contends that the CO's decision to reject the initial TEP's evaluations
and to change the composition of the TEP was improperly motivated by the
CO's desire to ensure that CTI's proposal earned a higher score and avoid
awarding the contract to WRS. Specifically, WRS maintains that the CO's
decision to change the membership of the TEP was designed to exclude certain
technical and "end-users" from the reconvened TEP who were aware of CTI's
poor past performance.
We have recognized that it is within the CO's discretion to convene a new
evaluation panel where, for example, the CO, in good faith, determines that
such action is necessary to ensure the fair and impartial evaluation of
proposals, and the record shows that it was not made with the specific
intent of changing a particular offeror's technical ranking or avoiding an
award to that offeror. See Loschky, Marquardt & Nesholm, B-222606, Sept. 23,
1986, 86-2 CPD para. 336 at 5; Pharmaceutical Sys., Inc., B-221847, May 19,
1986, 86-1 CPD para. 469 at 5. Further, a procuring agency may convene a new
evaluation panel where the CO reasonably determines that the evaluation may
have been biased or where there is a potential for an appearance of a
conflict of interest. See, e.g., EBA Eng'g, Inc., B-275818, Mar. 31, 1997,
97-1 CPD para. 127 at 3-4; Louisiana Physicians for Quality Med. Care, Inc.
B-235894, Oct. 5, 1989, 89-2 CPD para. 316 at 5.
In response to a request from our Office that the CO expand on her reasons
for rejecting the initial evaluations, she states that she has been the CO
on three other similar linguistic services contracts for which CTI competed.
According to the CO, in two of those procurements, CTI's proposal had earned
at least 91 points and its high score was 95 points. CO Statement, May 17,
2001, at 2. Although proposals were not numerically scored in the third
procurement, CTI's proposal was rated acceptable and CTI was awarded that
contract. Id. The CO further states that she was the CO on four other
similar contracts where offeror A's proposal, which initially received only
58 points here, earned from 83 to 98 points on similar rating scales. The CO
explains that given the disparity of the scores the TEP assigned here, and
comparing those scores to the scores earned by these same offerors on other
similar procurements, she was especially concerned with the relatively low
scores earned by CTI's and offeror A's proposals.
The CO states that, although she could not be absolutely certain, she
suspected that the initial TEP's scores reflected a bias, either in favor of
WRS (which earned a high score of 83 points) or against the other offerors
(which earned relatively low numerical ratings ranging from 0 to 58 points).
Id. Another possibility, according to the CO, was that the scores reflected
the TEP's failure to properly evaluate proposals. The CO states that she was
particularly concerned over this latter possibility because it could have
formed the basis for a successful challenge to an award. In any event, the
CO concluded that given the disparity in technical scores within the initial
TEP's report and as compared with historical scores, she could not
reasonably rely on the initial TEP's evaluation to independently assess the
technical merits of the proposals. Id. We then held a hearing in this matter
limited to obtaining testimony from the CO to better understand the basis
for her decision to reject the initial evaluations and convene a new TEP.
At the hearing, the CO testified that she knew from her personal experience
with other similar procurements that CTI and the other firms had previously
earned higher scores. The CO was thus alerted by the initial TEP's
relatively low scores that there may have been a problem with the
evaluations. Video Transcript (VT) at 10:01. The CO further testified that
upon closer scrutiny of the initial TEP's report, she found that the TEP had
not adequately supported the low scores assigned the proposals. While in
written statements in response to the protest, the CO indicated her concern
with only two other offerors' scores, it is clear from her testimony at the
hearing that she was concerned with the relatively low scores of all other
offerors.
The CO also disagreed with the TEP's findings in part because its
explanations for downgrading proposals in several areas were inconsistent
with the information the offerors provided. VT at 10:02; 10:22:35. For
example, the initial TEP downgraded CTI's proposal under the "furnishing
qualified personnel" factor based upon its conclusion that CTI had not
demonstrated in its proposal that it could provide qualified personnel, and
that only 5 of 22 required core personnel were CTI employees. The CO
disagreed with this particular finding because her review of CTI's proposal
revealed that at least 14 core personnel were employed by CTI or its
proposed subcontractors. VT at 10:03:10. The CO thus found that the TEP's
evaluation was inconsistent with what CTI actually proposed with respect to
personnel. VT at 10:05. The CO also disagreed with the TEP's findings with
respect to other areas of the evaluation which, in her view, resulted in
unreasonable point deductions. See, e.g., VT at 10:05 (regarding CTI's
recruiting/retention program).
Another area where the CO disagreed with the TEP's findings pertained to the
evaluation of the offerors' proposed security plans. Specifically, the CO
found that the TEP had unreasonably downgraded CTI's proposal for failing to
provide details of its proposed security plan for handling classified
materials. VT at 10:08. The CO testified that she believed this deduction
was unfair because, in her view, the TEP had apparently lost sight of the
fact that only the incumbent could have provided the level of detail the
initial TEP was looking for regarding DEA's security procedures. Id. The CO
also testified that with respect to the evaluation of other offerors, she
concluded that the TEP had not followed her instructions in that the ratings
did not reasonably differentiate between weaknesses, significant weaknesses,
and deficiencies between proposals. VT at 10:10:12. For example, the CO
found that the TEP had deducted points from one offeror's proposal in one
area, while failing to do so in evaluating other proposals where the TEP had
identified the same weakness or deficiency. VT at 10:11:32-35. The CO also
found the TEP's report insufficient in that it did not provide details she
believed necessary to conduct meaningful discussions with the firms. VT at
10:03:56. In sum, given the unwarranted point deductions and inconsistent
ratings, the CO believed the evaluations were not fair. As a result, the CO
lost confidence in the initial TEP, concluded that the initial evaluations
did not accurately reflect the merits of proposals, and set aside the
initial TEP's findings. VT at 10:13:59; 10:21:15. In view of her conclusions
regarding the TEP's initial evaluations, we have no reason to question the
CO's decision to reject the initial evaluations.
WRS argues that the decision to convene a new panel was motivated by the
CO's desire to exclude from the new panel users who were aware of allegedly
adverse past performance information about CTI. [2] This argument simply is
not supported by the record. In this connection, the agency states that the
chairperson of the new TEP is a DEA Assistant Special Agent-in-Charge
(ASAC), who will supervise the successful contractor's performance of the
contemplated contract, and will be a direct user of the required services.
The fact that some of the other TEP members were not "end-users," as WRS
contends, is no basis for disqualifying them from the panel. Further, there
is no evidence in the record suggesting that either the CO or the initial
TEP was or should have been aware of CTI's allegedly poor performance on a
DEA contract WRS refers to in its pleadings. In sum, WRS has identified
nothing to establish any basis to question the composition of the new TEP.
[3]
The protester suggests that rather than establishing an entirely new TEP,
the CO could have reconvened the original panel and requested that it
provide a more detailed explanation supporting its findings. While this was
an option, we see no basis to object to the CO's decision to convene a new
panel instead. In view of the CO's conclusion that the initial TEP may have
been biased (either in favor of WRS or against the other offerors), and that
the initial TEP may not have followed her basic instructions the first time
around--which combined to effectively undermine her confidence in the
initial TEP--the CO reasonably decided to reject all of the intial
evaluations. [4]
WRS relies on our decision in Boeing Sikorsky Aircraft Support, B-277263.2,
B-277263.3, Sept. 29, 1997, 97-2 CPD para. 91, to argue that the CO's
post-protest explanations for her decision to reject the initial evaluations
and convene a new TEP should not be accorded any weight. Post-protest
explanations that provide a detailed rationale for contemporaneous
conclusions, as is the case here, simply fill in previously unrecorded
details, and will generally be considered in our review of the rationality
of selection decisions, so long as those explanations are credible and
consistent with the contemporaneous record. See NWT, Inc.; PharmChem Labs.,
Inc., B-280988, B-280988.2, Dec. 17, 1998, 98-2 CPD para. 158 at 16; Northwest
Management., Inc., B-277503, Oct. 20, 1997, 97-2 CPD para. 108 at 4 n.4. Unlike
in Boeing, the CO's statement in response to WRS's protest--as confirmed by
her testimony at the hearing, which we find credible--is not a new analysis
based on hypothetical assumptions to attempt to justify a post-protest
decision in the face of a protest. Accordingly, the Boeing decision does not
require that we disregard the CO's post-protest explanations here.
Evaluation of Proposals
Personnel
Under the evaluation subfactor relating to the offeror's ability to furnish
qualified personnel, the awardee received a score of 33 out of 35 points.
WRS argues that CTI's score should have been lower in this area because it
was clear from CTI's proposal that it intended to recruit--or "raid," in
WRS's terms--personnel from other firms to fill positions under the contract
to be awarded here. In view of this approach to staffing, WRS asserts, the
agency should have concluded that CTI would not be able to furnish the
necessary personnel. As the agency points out, there is no reason to make
the connection that WRS urges--that is, that CTI's approach of recruiting
and hiring employees from other firms necessarily carries a high risk that
it will not be able to provide qualified employees. On the contrary, as WRS
acknowledges, CTI submitted all required letters of commitment for its
proposed personnel, and explained in its proposal how it intended to screen
and recruit qualified incumbent personnel as well as experienced former DEA
employees for various labor categories. CTI FPR, Dec. 22, 2000, at 5-7.
Other than its conclusory statement that CTI's proposal presented
"demonstrated performance risk," Protester's Comments, May 11, 2001, at 16,
WRS simply provides no basis for us to question the evaluators' conclusion
regarding CTI's ability to furnish the required personnel as outlined in its
proposal.
WRS also argues that CTI proposed individuals ineligible to work on the
contemplated contract. According to WRS, individuals who previously worked
on contracts involving highly secure wiretaps, and left those positions to
work on less secure matters are "contaminated" (WRS's term), and are thus
prohibitted by a DEA "security rule" from returning to work on highly secure
linguistics contracts such as the one contemplated here. [5] WRS alleges
that it has been especially aware of DEA's rule because DEA has enforced the
rule on its personnel in the past. As such, WRS states that it assumed that
DEA would enforce the same prohibition here. The protester maintains that it
was prejudiced because CTI proposed "contaminated" individuals, and had it
known that DEA would not enforce the rule, it would have proposed different,
presumably better qualified, "contaminated" individuals, resulting in its
proposal earning a higher score under the "furnishing qualified personnel"
factor.
The agency responds that it is unaware of any DEA rule that bars allegedly
"contaminated" individuals from working on this contract because of their
work histories. DEA further states, as confirmed by our own review of the
solicitation, that the RFP is silent with respect to the alleged security
rule or its applicability to DEA's core staffing requirements. In addition,
the ASAC of the Office of Special Projects, who chaired the TEP and will
supervise contract performance, has provided to our Office a sworn
declaration affirming that she is unaware of any such DEA policy. See ASAC
Declaration, Apr. 25, 2001. The ASAC further affirms that she is unaware of
any DEA contract for these services that contains a blanket prohibition on
employees returning to work on sensitive projects based solely on their work
histories. Id.
Moreover, in further support of DEA's position, the ASAC declares that she
has reviewed documentation related to previous highly secure linguist
contracts where at least 10 contractor employees left their positions in
those contracts to work on projects involving less sensitive information and
subsequently returned to highly sensitive jobs. ASAC Declaration, June 8,
2001, para.para. 2-3. In addition, the ASAC has provided documentation gathered
during her research of this issue showing that in its offer in response to
the instant RFP, WRS proposed one of those 10 allegedly contaminated
individuals to fill a core position here. Id. The ASAC further reaffirms
that she is not aware of any rule that would prohibit the individual WRS
proposed from returning to perform the type of sensitive work contemplated
here.
WRS has provided no evidence, and we could find none in the record, even
suggesting that the RFP incorporated or referenced the alleged prohibition
on core personnel. In fact, WRS's position is undermined by its own
proposal, where the firm apparently listed at least one employee to fill a
core position who, under WRS's interpretation, was allegedly prohibited from
working on the contract. In view of the lack of any reference in the RFP to
the alleged DEA rule or any other evidence even suggesting that DEA would
prohibit offerors from proposing certain core personnel due to their work
histories, any assumptions WRS made to its detriment in preparing its
proposal regarding the alleged prohibition were due solely to the firm's
business judgment and could not reasonably be attributed to any improper
agency action.
Past Performance
WRS contends that DEA either failed to obtain, or ignored, allegedly adverse
past performance information concerning CTI and one of its proposed
subcontractors, resulting in an artificially inflated score for the awardee
in this area. For example, WRS states that CTI has failed to provide the
required staffing under a contract for similar services DEA awarded CTI in
support of the agency's New York Field Division. In addition, WRS contends
that CTI's poor performance on that contract caused the CO, who is the same
CO involved here, to obtain the required services through blanket purchase
agreements (BPA), presumably issued to other vendors including WRS, to
compensate for CTI's allegedly deficient performance. The protester makes
similar arguments regarding contracts DEA awarded CTI in support of the
agency's Houston and Detroit Field Divisions. The protester further
maintains that because of CTI's proposed subcontractor's allegedly poor
performance on another contract for technical support in DEA's New York
office, the agency did not exercise remaining options on that contract. WRS
also maintains that the evaluators improperly relied exclusively on the past
performance information contained in CTI's proposal, implying that the TEP
should have contacted other references not listed in the proposal to
independently verify CTI's performance history.
Our Office will examine an agency's past performance evaluation only to
ensure that it was reasonable and consistent with the stated evaluation
criteria and applicable statutes and regulations, since determining the
relative merit of an offeror's past performance is primarily a matter within
the contracting agency's discretion. Pacific Ship Repair and Fabrication,
Inc., B-279793, July 23, 1998, 98-2 CPD para. 29 at 3-4. In conducting a past
performance evaluation, an agency has discretion to determine the scope of
the offerors' performance histories to be considered, provided all proposals
are evaluated on the same basis and consistent with the solicitation
requirements. Federal Envtl. Servs., Inc., B-250135.4, May 24, 1993, 93-1
CPD para. 398 at 12. Based on our review of the record, we find nothing
unreasonable in the agency's conduct of the performance evaluation or in the
rating given CTI's proposal.
The RFP stated as follows with respect to the evaluation of proposals in
this area:
Past Performance/Risk Assessment
This section must include sufficient information to identify and describe
the previous work experience of the offeror in similar or related work and
to demonstrate the offeror's current capacity to perform the proposed work,
as supplemented by Past Performance survey. The offeror shall demonstrate
his, and/or his key personnel's, past performance experience is relevant to
the current requirement. The offeror shall provide performance improvements
to previous performance, and/or planned improvements to take effect upon
award of this requirement. The offeror shall provide the completed past
performance surveys and ratings in accordance with Section L.6. The
Government will evaluate past performance in accordance with Section M.3.
RFP amend. 2, May 19, 2000, sect. M.5, at M-5.
In assessing proposals under this factor, the TEP applied three
subfactors--relevance, performance improvements, and past performance
surveys. In order to assist the agency in evaluating proposals in this area,
offerors were instructed to submit with their proposals "Client
Authorization Letters" and completed "Past Performance Contractor Surveys,"
included in the RFP. Offerors were instructed to send copies of the survey
form to at least three government agencies or commercial sources, with which
the offeror has current or previous contracts in the area of translation,
transcription, and automated data processing support services. In its
proposal, CTI provided completed past performance surveys and narratives
explaining CTI's and its subcontractors' responsibilities and performance
under several DEA contracts which the firms are either currently performing
or have recently completed. The TEP reviewed this information, and as
explained below, noted strengths, deficiencies, and weaknesses within the
applicable subfactors.
Relevance
The TEP noted as strengths that CTI's proposal exceeded requirements for
work relevance, and that CTI's and its proposed subcontractors' past
projects related to the instant project. CTI TEP Evaluation Consensus, Nov.
8, 2000, Past Perf./Risk Assessment--Relevancy. Based upon the initial and
final evaluations, the TEP identified no deficiencies or weaknesses in CTI's
proposal, and awarded the firm the maximum number of points available (10)
for this subfactor. Id.; TEP Final Evaluation Consensus, Jan. 30, 2001.
Performance Improvements
The TEP noted several strengths, including that CTI's subcontractor "has
knowledge of current technical requirements," and had corrected its problems
with its system. CTI TEP Evaluation Consensus, supra, Past Perf./Risk
Assessment--Performance Improvements. In addition, the TEP noted as a
strength in the proposal CTI's "layers of quality control and performance
improvements." Id. Noting only one deficiency and one weakness within this
subfactor, the TEP awarded the firm's proposal 4 points out of 5 available
for this subfactor following the initial evaluation. CTI's score for this
subfactor did not change after discussions.
Surveys
The TEP found that the surveys were "good" and "exceeded requirements" for
CTI and its subcontractors. CTI TEP Evaluation Consensus, supra, Past
Perf./Risk Assessment--Past Performance Surveys. The TEP noted only one
weakness because CTI had submitted only one performance survey related to
one of its subcontractors, and downgraded CTI's proposal 1 point out of a
maximum of 5 available for this reason. This score did not change following
discussions with CTI. [6]
The past performance surveys requested respondents to rate the firm on a
scale ranging from 1 to 4 on several questions, where 4 points reflected
that the contractor "considerably surpassed minimum contract requirements."
For each question, the surveys contained a space for respondents' comments.
Our review of the completed past performance surveys CTI submitted with its
proposal for itself, as well as for its proposed subcontractors, reveals
that the respondents generally rated the firms positively, making several
favorable comments regarding their performance. For example, one respondent
who rated CTI's performance on a DEA contract in the Chicago Field office
rated the firm 3 or higher on all questions, and commented that CTI
adequately staffed the referenced contract, even though the locations and
amount of work fluctuated greatly. That respondent also noted that CTI had
submitted timely transcripts and invoices, and worked closely with the
agency to resolve performance problems. Completed surveys related to other
DEA contracts also contained similarly high ratings and favorable comments
on CTI's performance. Based on our review, we think that the TEP's
assessment of CTI's past performance is unobjectionable.
WRS also contends that the CO should have been aware of CTI's and one of its
proposed subcontractors' allegedly poor performance on other DEA contracts
for similar services. In response, the CO states that she has never issued
orders under BPAs to compensate for CTI's allegedly poor performance in the
New York Field Division. CO Statement, supra para. 2. At the hearing, the CO
further testified that she is not aware that CTI or its subcontractors
performed poorly on any other DEA contract. VT at 10:37:20. Accordingly,
there is no evidence in the record upon which we could reasonably conclude
that the CO should have been aware of CTI's allegedly poor performance.
Regarding WRS's allegation that the CO here was required to obtain the
required services on other DEA contracts from other vendors, the CO states
that successful offerors on other similar DEA contracts, including CTI and
one of its proposed subcontractors, historically have been unable to provide
all of the required personnel upon award of their contracts. The CO explains
that this is primarily due to DEA's strict security clearance policy, and
not due to a contractor's poor performance. In this connection, the CO
explains that DEA does not perform security screenings of proposed personnel
until after award, and that it is not unusual for some of an awardee's
proposed staff to be found ineligible to receive security clearances.
Another possibility is that even where personnel are eligible to receive
clearances, their processing is delayed for administrative reasons. In these
circumstances, DEA either requires that the awardee provide substitute
personnel or the agency must obtain the required employees to achieve its
mission from other sources. The CO states, however, that in either event,
this process is relatively routine regardless of the awardee and DEA does
not consider it indicative of poor performance. CO Statement, May 17, 2001,
at 1. Even assuming, therefore, that DEA has obtained services from vendors
other than the awardees, in view of the CO's explanation, WRS's contentions
in this regard are without merit.
WRS's argument that DEA improperly relied exclusively on past performance
information contained in CTI's proposal is similarly without merit. Contrary
to the protester's apparent belief, there is no requirement for agencies to
seek out additional references who were not listed in an offeror's proposal
to independently verify an offeror's past performance history, except in
circumstances not applicable here. [7] See Basic Tech., Inc., B-214489, July
13, 1984, 84-2 CPD para. 45 at 7. In reviewing the manner and conduct of an
agency in contacting, or choosing not to contact, references listed by
offerors in their proposals, we look to see if the agency proceeded in a
reasonable and prudent manner. International Bus. Sys., Inc., B-275554, Mar.
3, 1997, 97-1 CPD para. 114 at 5.
Here, the RFP provided that the agency would evaluate past performance based
on the documentation submitted by the offerors concerning their experience
and demonstrated capability, and completed performance surveys. As explained
earlier, the record reflects that the agency did just that. While WRS is
correct in its assertion that the the RFP stated that in assessing past
performance the government would consider information provided by "other
sources," we do not read this as requiring the agency to independently
contact references not listed in the proposals to verify a firm's
performance history where there is no reason to question the validity or
accuracy of the completed surveys. In view of the specific strengths the TEP
noted in CTI's proposal, and the relatively high ratings and favorable
comments made by CTI's references who completed the past performance
surveys, we think that the TEP's rating of CTI's proposal under the past
performance area is reasonably supported.
The protest is denied.
Anthony H. Gamboa
General Counsel
Notes
1. Initially, WRS also challenged the award to CTI because WRS incorrectly
assumed that DEA had waived for CTI a solicitation requirement for offerors
to submit letters of commitment for core personnel. In its comments, WRS
concedes that CTI did, in fact, submit the required letters of commitment.
WRS also maintained that DEA's "cost realism" analysis was flawed. After
receipt of the agency report which explained DEA's analysis, WRS withdrew
this protest ground. Protester's Comments, May 11, 2001, at 2 n.1.
2. We note that WRS does not argue, and there is no evidence in the record,
of bias or bad faith on the part of any member of the TEP. In fact, a
comparison of the initial TEP's scores with the new TEP's scores shows that
WRS's scores increased from 83 to 92 points in the final evaluation--only 1
point below the highest score of 93 points earned by offeror B and 1 point
higher than CTI's final score--thus undermining even a suggestion that the
new TEP could have been biased against WRS.
3. WRS also argues that the new TEP's consensus scores are inconsistent with
the rejected scores assigned by the initial TEP, particularly with respect
to the evaluation of CTI's proposal under the personnel factor. Different
evaluation panels may reasonably reach different conclusions regarding the
quality of an offeror's proposal given the subjective judgment necessarily
exercised by evaluators. See Warvel Prods., Inc., B-281051.5, July 7, 1999,
99-2 CPD para. 13 at 10-11. Further, a final consensus score need not be the
same as scores initially awarded. See I.S. Grupe, Inc., B-278839, Mar. 20,
1998, 98-1 CPD para.86 at 6. The overriding concern in these matters is whether
the final scores assigned reasonably reflect the merits of proposals. Id.
Here, we think that the CO reasonably determined that the final TEP's scores
accurately reflected the technical merits of the proposals, and properly
relied on those scores to make her selection decision. Accordingly, the fact
that the final consensus scores differed from those the CO initially had
rejected, is immaterial.
4. In its post-hearing comments, WRS states that, since the CO testified
that she had not found any errors with the initial evaluation of WRS's
proposal, her decision to reject the findings of the initial TEP with
respect to WRS was an abuse of discretion. This argument is without merit.
Once the CO reasonably concluded that there were questions about the
reliability of the initial TEP's findings, there was nothing unreasonable
about referring all the proposals to the new TEP for its evaluation.
5. WRS believes that the alleged rule is "contained in a classified
memorandum of understanding (MOU) between the Department of Justice,
Department of the Treasury, the Immigration and Naturalization Service, and
possibly, the Department of Defense." Protester's Comments, May 11, 2001, at
12. According to WRS, "[a] DEA representative informally advised WRS that
the rule was rescinded on January 18, 2001--indicating that the rule was in
effect both when [the RFP] was issued and when the initial technical
evaluations occurred. WRS, of course, cannot confirm or deny the accuracy of
such advice." Id. at 12-13 n.12.
6. WRS believes that awarding 4 points to CTI's proposal under the surveys
subfactor is "too high." WRS further argues that the evaluation under the
performance improvements subfactor was inconsistent because both CTI's and
WRS's proposals earned 4 points in this area, even though the TEP noted
strengths in WRS's proposal and a deficiency in CTI's proposal under this
subfactor. While WRS disagrees with these ratings, a protester's mere
disagreement with the agency's conclusions does not render the evaluation
unreasonable. Calian Tech. (US) Ltd., B-284814, May 22, 2000, 2000 CPD para. 85
at 3-4. In any event, we reviewed the record in this regard and could find
no basis to object to the TEP's evaluation of proposals under these
subfactors.
7. For instance, an agency may accept a firm's representations of its
experience unless there is reason to believe that the representations are
inaccurate. See Geographic Resource Solutions, B-260402, June 19, 1995, 95-1
CPD para. 278 at 4, citing Medical Care Dev., B-235299, Aug. 17, 1989, 89-2 CPD
para. 149; Roy F. Weston, Inc., B-197866, B-197949, May 14, 1980, 80-1 CPD
para. 340. Here, CTI's experience is not at issue, and there is nothing in the
record which should have suggested to the TEP that the completed past
performance surveys CTI submitted with its proposal did not accurately
reflect the firm's performance history.