TITLE:  Symtech Corporation, B-289332, February 19, 2002
BNUMBER:  B-289332
DATE:  February 19, 2002
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Decision

Matter of: Symtech Corporation

File: B-289332

Date: February 19, 2002

Donald Hirsch, Esq., for the protester.

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

Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office of
the General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest is sustained where the record fails to establish that contracting
officer had a reasonable basis for excluding protester's proposal from the
competitive range.

DECISION

Symtech Corporation protests the exclusion of its proposal from the
competitive range and the award of a contract to MasiMax Resources, Inc.
under request for proposals (RFP) No. N01DA-1-1106, issued by the Department
of Health and Human Services for logistical support of science meetings
conducted by the National Institute on Drug Abuse (NIDA).

We sustain the protest.

The RFP, which was issued as a competitive set-aside for small disadvantaged
businesses under the Small Business Administration's 8(a) program, [1]
contemplated the award of a cost-reimbursement contract for a base period of
1 year and two option periods of 2 years each. The contractor is to organize
and provide logistical support for approximately 33 scientific conferences
per year. In addition, it is to develop a variety of drug abuse-related
publications.

The RFP provided for award to the offeror whose proposal represented the
best value to the government, considering technical factors, cost, and past
performance. The solicitation stated that technical factors would receive
paramount consideration in the selection of an awardee, but that in the
event that two or more offerors were rated as approximately equal in
technical ability, the significance of cost would increase. The past
performance of offerors whose proposals would not be selected for award
based on the results of their evaluation under the other factors was not to
be evaluated. Technical evaluation factors (and their weights) were as
follows: understanding the project (20 points), technical approach (20
points), key personnel (25 points), management plan (25 points), and
facilities (10 points).

Twelve offerors submitted proposals prior to the June 15, 2001 closing date.
A technical evaluation panel (TEP) consisting of peer reviewers from outside
the agency evaluated the technical proposals. The TEP found nine of the
proposals, including those of MasiMax and Symtech, to be technically
acceptable, and assigned the former a technical score of 94.7 and the latter
a technical score of 89.8, which were the two highest scores awarded. (The
other proposals received technical scores ranging from 82.8 to 37.2.) After
reviewing the findings of the TEP and offerors' total estimated costs, the
contracting officer determined that only Symtech and MasiMax should be
included in the competitive range. She then investigated the past
performance of the two offerors and determined that both were highly rated
by most of their references; accordingly, she concluded that past
performance should be regarded as "somewhat of a wash between the two
offerors." Contracting Officer's Statement, Dec. 3, 2001, at 11.

The contracting officer initiated discussions with both offerors. Symtech
was asked to respond to five technical questions. Upon receipt of Symtech's
response to the five questions, the contracting officer determined that the
protester's proposal should be eliminated from the competitive range. By
letter dated September 13, received by the protester on September 26, the
contracting officer notified Symtech of its exclusion from the competitive
range. On September 27, the agency awarded a contract to MasiMax.

In her redetermination of the competitive range, the contracting officer
explained that she had determined that Symtech's proposal should not be
further considered because the protester had not adequately responded to two
of the technical questions. Specifically, the contracting officer noted that
in response to a discussion question asking Symtech to elaborate on its
logistical work and science writing experience, [2] Symtech had not
discussed logistical work that it, as the prime contractor, had performed,
but instead had emphasized the logistics-related experience of its proposed
project director [3] and subcontractor. In addition, Symtech had failed to
demonstrate that it would furnish science writers with experience in the
area of drug abuse. The contracting officer further noted that Symtech had
failed to satisfactorily address her concerns regarding its lack of senior
level personnel and had failed to offer a back-up plan for the position of
project director. [4] In summary, the contracting officer found as follows:

The lack of logistical experience of the prime contractor, the over reliance
on the subcontractor, the questionable mix of senior level labor versus
junior level labor, the lack of proposed back up and the offeror's lack of
drug abuse/NIH experience make it highly unlikely that this offeror can
successfully execute the project without an extensive revision of the
proposal.

Redetermination of Competitive Range, Sept. 12, 2001, at 2. Accordingly, she
concluded that Symtech's proposal was "unacceptable for award" [5] and
should be eliminated from the competitive range. Contracting Officer's
Statement, supra, at 4.

The protester argues that the agency's decision to exclude its proposal from
the competitive range was unreasonable.

The determination of whether a proposal is in the competitive range is
principally a matter within the reasonable exercise of discretion of the
contracting agency, and an agency is not required to retain in the
competitive range a proposal that the agency reasonably concludes has no
realistic prospect of award. Ervin & Assocs., Inc.,
B-280993, Dec. 17, 1998, 98-2 CPD para. 151 at 3; see Federal Acquisition
Regulation (FAR) sect. 15.306(c)(1). While, in reviewing protests challenging
the evaluation and exclusion of proposals from the competitive range, we do
not evaluate the proposals anew or substitute our judgment for that of the
agency, we will examine the record to determine whether the agency's
judgment was reasonable and in accord with the RFP evaluation criteria.
Northwest Procurement Inst., Inc., B-286345, Nov. 17, 2000, 2000 CPD para. 192
at 5. Because the record here does not support the agency's determination
that Symtech's proposal was technically unacceptable, we conclude that the
decision to exclude the proposal from the competitive range was improper.

The contracting officer cites four weaknesses in the protester's proposal;
as discussed below, we think that each of her findings is unsupported.

First, regarding the contracting officer's citation of Symtech's lack of
corporate experience in performing logistics contracts as a weakness,
corporate experience was not an evaluation factor under this RFP, nor is it
logically encompassed within any of the stated technical factors
(understanding the project, technical approach, key personnel, management
plan, and facilities). Moreover, even to the extent that experience is
logically encompassed within past performance, we see no reasonable basis
for the contracting officer's unwillingness to attribute the experience of
Symtech's proposed project director and subcontractor to Symtech. The
Federal Acquisition Regulation (FAR) instructs that the evaluation of past
performance should take into account past performance information regarding
predecessor companies, key personnel who have relevant experience, or
subcontractors that will perform major or critical aspects of the
requirement when such information is relevant to the instant acquisition,
which it clearly was here. FAR sect. 15.305(a)(2)(iii).

Even if we assumed, though, for the purpose of this analysis that the agency
had a reasonable basis for declining to attribute the project director's and
subcontractor's experience to Symtech, the resulting lack of experience
could not properly have led to a negative past performance rating for
Symtech. The FAR instructs that in the case of an offeror without a record
of relevant past performance or for whom information on past performance is
not available, the offeror may not be evaluated favorably or unfavorably on
past performance, FAR sect. 15.305(a)(2)(iv), meaning that the contracting
officer could not have evaluated Symtech's past performance as weak based on
its lack of corporate experience in performing logistics contracts.

Regarding the contracting officer's finding that Symtech's proposal failed
to offer the services of a health science writer with experience in drug
abuse, this criticism is simply unsupported by the record. In its proposal,
Symtech offered as a science writer the services of an employee of its
proposed subcontractor with extensive experience writing on drug abuse
issues. Symtech Proposal at 108-09. Symtech also offered, as a supplement to
its proposed project team, a resource pool comprised of staff members
assigned to other projects, but available on an as-needed basis to support
this contract. Id. at 90. Several of these individuals are science
writers/editors with experience in the area of drug abuse. Accordingly, we
find no basis for this criticism of the protester's proposal.

Further, we fail to see a reasonable basis for the contracting officer's
conclusion that Symtech had offered predominantly junior-level staff. In its
proposal, Symtech identified the members of its proposed project staff and
their years of experience as follows:

   * Project manager: 20-plus years of experience in planning and managing
     conferences.
   * Senior conference manager/subcontract manager: 10-plus years experience
     in conference/event planning and management.
   * Subcontractor corporate monitor: 25-plus years experience in contract
     management and administration, project management, financial
     management, publications production, and communications.
   * Writer/editor: 7-plus years of experience writing, editing, and
     coordinating the production of technical documents, including work as a
     writer/editor on the incumbent contract for the past 3 years.
   * Graphics/desktop publisher: 10-plus years of experience in production
     management, including 9 years of service on predecessor contracts for
     instant services.
   * Conference coordinator: 4 years of experience in conference assistance
     and logistics.
   * Symtech corporate monitor: 40 years of logistics, program, and
     in-service support and maintenance experience.

Id. at 105-09. Moreover, in response to the discussion question regarding
the ability of Symtech's proposed staff to perform high quality work (see
footnote 4 above), Symtech emphasized that its senior conference
manager/subcontract manager, writer/editor, and graphics/desktop publisher
all had substantial NIDA-related experience directly related to the
positions for which they were proposed. Based on the foregoing, it appears
to us that the only arguably "junior-level" staffer proposed by Symtech was
the conference coordinator, who was, commensurate with her level of
experience, assigned only "junior-level" responsibilities. [6]

We also see no basis for the conclusion that Symtech had proposed no back-up
for the position of project director. In the section of its proposal
summarizing the roles and responsibilities of its project team members,
Symtech stated that its proposed senior conference manager would serve as
acting project manager in the project manager's absence. [7] Id. at 110. To
the extent that the contracting officer is objecting to Symtech's proposal
of an employee of its subcontractor as back-up for the project director, so
long as the solicitation itself does not prohibit performance by
subcontractor employees (and the RFP here did not), we are aware of nothing
that would preclude a prime contractor from proposing an employee of its
subcontractor for a key position under a contract.

In sum, based on our review of the record here, we find that the agency
lacked a reasonable basis for determining Symtech's proposal technically
unacceptable and excluding it from the competitive range. We recommend that
the agency include Symtech's proposal in the competitive range and
reevaluate proposals. If, as a result of the reevaluation, Symtech's
proposal is determined to be the best value to the government, we recommend
that the agency terminate the contract awarded to MasiMax and make award to
Symtech. We also recommend that the agency reimburse the protester for its
costs of filing and pursuing the protest, including attorneys' fees. Bid
Protest Regulations, 4 C.F.R. sect. 21.8(d)(1) (2001). In accordance with
section 21.8(f) of our Regulations, Symtech's claim for such costs,
detailing the time expended and the costs incurred, must be submitted
directly to the agency within 60 days after receipt of the decision.

The protest is sustained.

Anthony H. Gamboa

General Counsel

Notes

1. Section 8(a) of the Small Business Act, 15 U.S.C. sect. 637(a) (2000),
authorizes the Small Business Administration to enter into contracts with
government agencies and to arrange for the performance of such contracts by
letting subcontracts to socially and economically disadvantaged small
business concerns.

2. The question read as follows:

One contract with logistic aspects is noted in the proposal. Please
elaborate on the logistical work you have done, including science writing
and include samples of this writing including the author's name and
affiliation.

Contracting Officer's Letter to Symtech, Sept. 5, 2001.

3. This individual was the project director on the previous contract;
Symtech proposed to hire her if it was awarded the contract under the RFP at
issue in the protest.

4. The contracting officer's September 5 question raising concerns regarding
the protester's lack of senior level personnel read as follows:

The prime contractor has named only one senior level person. The personnel
named in the subcontract are mostly junior level personnel. We are concerned
that the quality of work may suffer due to the lack of senior level
personnel. How can you assure us that the service will be at a high quality
level, if the staffing is predominantly junior level personnel?

5. According to the agency, this was essentially a determination of
technical unacceptability. Agency Report, Dec. 7, 2001, at 2 n.1.

6. Symtech described this individual's responsibilities as including the
following: planning and coordinating food and lodging, mailings, room
setups, data collection, and hospitality; monitoring and coordinating
logistical, clerical, and administrative support to the conference team;
arranging onsite registration, monitoring adherence to the conference
schedule, and assisting in training the conference staff; and preparing
conference mailings, premeeting materials, and logistical duties related to
NIDA conferences. Id. at 110.

7. As indicated above, this individual has more than 10 years experience in
conference/event planning and management.