TITLE:  National Center For Family Literacy, B-288134; B-288134.2, September 20, 2001
BNUMBER:  B-288134; B-288134.2
DATE:  September 20, 2001
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Decision

Matter of: National Center For Family Literacy

File: B-288134; B-288134.2

Date: September 20, 2001

Edward Waters, Esq., and Jennifer D. Leonard, Esq., Feldesman, Tucker,
Leifer, Fidell & Bank, for the protester.

Jeffrey C. Morhardt, Esq., and Jose Otero, Esq., Department of Education,
for the agency.

Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest against agency's rejection of proposal as technically deficient, and
therefore unacceptable, is denied where record shows that evaluation was
reasonable and consistent with solicitation's evaluation criteria.

DECISION

The National Center for Family Literacy (NCFL) protests the failure of the
Department of Education (DOE) to award it a contract under request for
proposals (RFP) No. ED-00-R-0061, for technical and analytical support
services. NCFL argues that the agency misevaluated its proposal and, as a
result, improperly determined that it was technically unacceptable.

We deny the protest.

The RFP contemplated the award of multiple
indefinite-delivery/indefinite-quantity contracts to perform technical and
analytical support services in one or more of nine identified issue areas.
Agency Report (AR), exh. 10, Revised Statement of Work, at 3. Offerors were
advised that proposals would be evaluated under several technical areas:
management and staffing plan (40 possible points), personnel
qualifications/key personnel (40 points), organizational experience (20
points), and small business participation (10 points); past performance was
also to be evaluated (and was worth a possible 36 points). RFP at 82-85. The
technical and past performance criteria together were significantly more
important than price. The RFP stated that contracts would be awarded only to
offerors whose proposals were deemed to have no deficiencies. RFP at 82. [1]

The agency received a large number of proposals, and after evaluating them
decided to make award on the basis of initial offers. Of the 39 large
business proposals received (the RFP provided for the separate evaluation of
proposals received from large and small businesses, RFP at 82), DOE
determined that 35 were without deficiencies and made award to those
offerors. The agency determined that the remaining four large business
proposals, including the protester's, were deficient, and therefore
technically unacceptable. In this regard, NCFL's proposal received a
consensus past performance score of 36 (out of a possible 36) points, but a
technical score of only 48 (out of a possible 110) points, [2] for a
combined score of 84 points. In addition to numeric scores, the agency
evaluators prepared narrative materials reflecting the evaluated
deficiencies. NCFL challenges the evaluation of its technical proposal.

In reviewing protests challenging an agency's evaluation of technical
proposals, our Office will not independently reevaluate the proposals;
rather, our review is limited to considering whether the evaluation was
reasonable and consistent with the solicitation's evaluation scheme and
applicable procurement statutes and regulations. McHargue Constr. Co.,
B-279715, July 16, 1998, 98-2 CPD para. 21 at 5. We find nothing improper in the
evaluation here.

NCFL asserts that its proposal was improperly downgraded for proposing
multiple project directors, citing the language of the personnel
qualifications/key personnel evaluation criterion, which provides:

Key personnel [may] include the manager(s), supervisor(s) and project
director(s) proposed in Labor Classification I or II whom the Offeror
proposes to assign full time responsibility for the performance of the
prospective task orders awarded under this contract.

RFP at 83. NCFL concludes that offerors were permitted to propose multiple
project directors, and that its proposal therefore should not have been
downgraded based on its offering 15 task order project directors.

NCFL's argument is without merit. The record shows that, under the personnel
qualifications/key personnel evaluation criterion, the agency did not
downgrade NCFL's proposal for offering multiple project directors; indeed,
no mention is made in the evaluation materials relating to this criterion of
the firm's proposed management approach. Instead, the evaluators found
NCFL's proposal "inadequate and unacceptable" under the personnel
qualifications/key personnel criterion because of an insufficient commitment
of high-level staff to performance during the early years of the contract.
AR exh. 138 at 17. Specifically, the evaluators found that 14 of NCFL's 24
class I and II personnel were not available at all for performance during
the first year of contract performance, and that 5 of these employees were
unavailable during the second year of performance. (We note as well that
NCFL's proposal shows, for example, that of the 10 class I and II personnel
who were available for performance during the first year of contract
performance, 7 were committed for only 10 percent of their time, 1 was
committed for only 20 percent of his time and the remaining 2 were committed
for only 30 percent of their time. During the second year of performance,
only 1 of the 24 class I and II personnel was committed for 50 percent of
his time, with the remaining personnel available for lesser amounts of
time.) NCFL does not take issue with--or even mention--this finding of the
evaluators which, in our view, reasonably led them to conclude that NFCL's
proposal was deficient, and therefore unacceptable for this reason alone;
the evaluation criterion specifically required firms to identify class I and
II personnel that would be assigned full time responsibility for performance
of the task orders.

The agency did criticize NCFL's proposal under the management and staffing
plan criterion for reasons relating to its project directors, but its
concerns related to NCFL's overall management approach rather than to the
mere fact that it proposed multiple project directors. The management and
staffing plan criterion provided in pertinent part:

The management and staffing plan will be evaluated on the organization,
staffing, and management of the Offeror, and the procedures and controls in
place for ensuring the quality and timeliness of the services and
deliverables to be provided. Details of quality control and cost containment
plans and methods should be included. The Offeror shall include an
organizational chart that details line of authority and responsibility.

RFP at 82. The evaluators did not criticize NCFL's proposal for offering
more than one project director per se; rather, they criticized it for
failing either to identify one or more individuals that were responsible for
overall contract management, or to show clear lines of authority within the
organization. Specifically, the evaluators found that the proposal included
only a vague general discussion of overall contract management that did not
provide a clear sense of what strategies were in place to provide for
adequate management; that there was little indication of how quality, cost
containment and timeliness would be ensured; that personnel had been
identified as having central responsibility for the overall contract; and
that there were no clear lines of authority identified within the
organization. AR exh. 112. NCFL does not challenge these conclusions, which
are supported by our reading of NCFL's proposal and consistent with the
areas expressly identified in the management and staffing plan evaluation
criterion.

NCFL also argues that its proposal was improperly downgraded for
demonstrating expertise in only one of the RFP's nine areas of expertise,
the family literacy area. NCFL notes in this regard that the RFP permitted
firms to offer in "one or more" of the nine areas. Even if NCFL were
correct, it would have no impact here, because this consideration was not
relied on in the agency's source selection decision. The source selection
decision document does not even refer to NCFL's lack of expertise outside
the family literacy area; it cites instead the other deficiencies discussed
above (NCFL's lack of an adequate management and staffing plan, and its
failure to adequately commit its high-level personnel) as the basis for the
agency's decision to eliminate NCFL from award consideration. AR exh. 140,
at 6.

NCFL contends that the agency improperly failed to give consideration to
what it describes as its relatively favorable proposed cost. However, since
a proposal that has been found technically unacceptable has no chance of
being selected for award no matter how low its pricing, it properly may be
rejected without regard to its cost. Phantom Prods., Inc., B-283882, Dec.
30, 1999, 2000 CPD para. 7 at 6 n. 4. [3]

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. The agency's source selection plan instructed the evaluators to find a
proposal deficient where it reflected a material failure to meet a
government requirement, or a combination of significant weaknesses in a
proposal that, together, increase the risk of unsuccessful performance to an
unacceptable level.

2. The consensus was an average of the individual evaluators' scores.
Technical Evaluation Summary Report at 16.

3. In its original protest, NCFL alleged that the awarded contracts lack
adequate consideration and are therefore invalid. This contention is
untimely since the terms of the intended consideration for the resulting
contracts were clearly outlined in the RFP; protesters are required to
challenge alleged solicitation improprieties apparent on the face of a
solicitation prior to the deadline for submitting proposals. 4 C.F.R. sect.
21.2(a)(1) (2001). Moreover, although NCFL requests in its original protest
that we invoke either the significant issue exception or the good cause
exception to our timeliness requirements, 4 C.F.R. sect. 21.2(c), we decline to
do so. NCFL did not advance any explanation of why we should invoke the good
cause exception, and we have previously considered questions relating to the
adequacy of consideration under task order contracts. Satellite Servs.,
Inc., B-280945, et al, Dec. 4, 1998, 98-2 CPD para.125. NCFL also argued that
the agency improperly failed to assign its proposal a combined quality
rating that gave consideration to the results of both the technical and past
performance evaluations. NCFL makes no mention of this assertion in its
comments on the agency report; we therefore deem it abandoned. Life Oxygen &
Health Servs., Inc., B-282243, June 18, 1999, 99-1 CPD para. 112 at 5 n. 1.