TITLE:  Imagine One Technology & Management, Ltd., B-289334, January 10, 2002
BNUMBER:  B-289334
DATE:  January 10, 2002
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Decision

Matter of: Imagine One Technology & Management, Ltd.

File: B-289334

Date: January 10, 2002

Nancie Lumpkins for the protester.

David P. Metzger, Esq., Holland & Knight, for DelaBarre & Associates Inc.,
an intervenor.

Lawrence Rudolph, Esq., National Science Foundation, for the agency.

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

DIGEST

Protest that discussion questions improperly established new requirements,
and that the questions reveal other improprieties in the evaluation, is
denied where record shows that discussion questions in fact reflected
solicitation requirements, and that evaluation was reasonable.

DECISION

Imagine One Technology & Management, Ltd. protests the award of a contract
to DelaBarre & Associates Inc. under request for proposals (RFP) No.
DMI-000002, issued by the National Science Foundation (NSF) as a HUBZone
small business set-aside for support services for federal Small Business
Innovation Research (SBIR) conferences. Imagine protests various aspects of
the technical and cost evaluations.

We deny the protest.

The RFP sought proposals to provide support services for planning,
promoting, and conducting 10 large conferences on federal research and
development (R&D) for small high-tech companies. These conferences are the
government's principal effort to disseminate information on federal R&D
opportunities for small disadvantaged businesses and small technology-based
companies. The RFP contemplated the award of a cost-plus-award-fee contract
for 3 years, with two 1-year options.

Proposals were to be evaluated under three technical factors totaling 100
points: management plan (35 points); capability and experience of staff (35
points); and technical approach (30 points). Cost proposals were not scored,
but were evaluated to assess their realism and the probable cost to the
government. The technical and cost factors were approximately equal in
weight, and award was to be made based on the greatest value to the
government.

Four proposals, including Imagine's and DelaBarre's, were included in the
competitive range after initial technical and cost evaluations. The agency
conducted three rounds of discussions with these offerors and evaluated
their responses. In reviewing the cost proposals, the evaluators calculated
the most probable cost (MPC) of each proposal by adjusting costs to account
for arithmetic errors, incorrect rates, and omitted costs. The final
evaluations under all factors were as follows:

 Factors (Avail.         Imagine     DelaBarre    Offeror 3   Offeror 4
 Points)

 Technical (100)         55.8        92.5         82.6        57.2

 Management Plan (35)    19.3        32.9         28.5        21.3

 Capability/Staff        19.5        32.1         26.8        19.4
 Experience (35)

 Technical Approach      17.0        27.5         27.3        16.5
 (30)

 MPC                     $2,945,161  $2,392,416   $2,347,146  $2,473,754

In making the award selection, the source selection official (SSO) reviewed
the reports of the technical and business evaluation panels, along with
their recommendations. Imagine's and Offeror 4's proposals were eliminated
because of their lack of technical expertise and their high MPCs. As between
DelaBarre's and Offeror 3's proposals, the SSO considered DelaBarre's higher
technical score and Offeror 3's lower MPC and found that the cost savings
would be more than offset by the time and effort that would be necessary to
ensure successful performance by Offeror 3. Accordingly, the SSO concluded
that DelaBarre's proposal represented the greatest value. After receiving
notice of the award to DelaBarre and a debriefing, Imagine filed this
protest.

UNDISCLOSED CRITERIA

Imagine asserts that the agency improperly asked offerors during discussions
to identify backups for key personnel and to identify which, if any, key
personnel were certified meeting professionals or had meeting management
credentials. In Imagine's view, because the RFP did not mention the need for
backups or the requested credentials, these questions had the effect of
establishing undisclosed evaluation criteria.

This argument is without merit. The RFP specifically called for proposals to
include resumes for all key personnel, including qualifications and specific
information on each individual's education, past experience, and most recent
experience. RFP sect. L.5.B(d). It should have been evident to Imagine from this
call for information that the agency intended to consider in the evaluation
key personnel experience, including certifications, which relate to the
level of an employee's experience. Similarly, section M of the RFP
specifically advised offerors that, under the "capability and experience of
staff" subfactor, the agency would evaluate whether the "offeror commits
adequate staff to fulfill the requirements of this acquisition, experienced
in disciplines critical to the successful completion of the project
management." RFP sect. M.2. This reference to experience put offerors on further
notice that the agency would consider matters reflecting personnel
experience. Further, we think an offeror's ability to supply backups if its
proposed key personnel are unable to perform logically relates to the
adequacy of the overall proposed staff; thus, the reference to adequacy of
the proposed staff was sufficient to put Imagine on notice that backup staff
and other measures aimed at ensuring that there would be enough staff to
perform successfully would be considered in the evaluation. See

TESCO, B-271756, June 24, 1996, 96-1 CPD para. 284 (agency properly may consider
in evaluation matters reasonably related to stated evaluation criteria); see
also Ryan Assocs., Inc., B-274194 et al., Nov. 26, 1996, 97-1 CPD para. 2 at 4
n.3. We conclude that the discussion questions reflected the evaluation
considerations set forth in the RFP.

FLAWED EVALUATION

Imagine asserts that two discussion questions indicate that the agency did
not adequately evaluate its proposal. Specifically, one question concerned
Imagine's proposed startup lead time, and a second concerned the respective
responsibilities of Imagine and its subcontractors. Imagine asserts that
this information was clear from its original proposal, and that these
questions therefore indicate that the agency did not read its proposal in
full, and could not have properly evaluated it.

This argument is without merit. Discussions are tailored exchanges between
the government and offerors with the purpose of allowing offerors to revise
their proposals in order to maximize the agency's ability to obtain the best
value. Federal Acquisition Regulation (FAR) sect. 15.306(d). There is nothing
that precludes an agency from initiating discussions on a point that may be
extensively addressed in an offeror's proposal; rather, "[t]he scope and
extent of discussions are a matter of contracting officer judgment." FAR sect.
15.306(d)(3). Therefore, the agency's asking such a question, by itself,
does not provide a basis for concluding that the agency did not read the
proposal or that the evaluation was otherwise deficient.

Imagine responded to the questions, and NSF evaluated those responses.
Imagine's response to the first question led the agency to find various
strengths and no weaknesses regarding the startup lead time. AR, Tab 9, at
16. Based on Imagine's response to the question regarding the team members'
responsibilities, the evaluators found that the "division of labor and
responsibility has been clearly defined," and that "[t]he additional
information provided has clarified the roles of the prime and
subcontractors/consultants." AR, Tab 9, at 13. The evaluators also found,
however, that Imagine relied too heavily on one of its subcontractors and
that the response came across as "we know this is important and we know how
to do it," which the evaluators found not to be a "sufficient response." Id.
We find nothing unreasonable on the face of these conclusions, and Imagine
has not explained how it believes they were unreasonable or otherwise
improper.

TECHNICAL LEVELING

Imagine asserts that the agency engaged in technical leveling--helping an
offeror bring its proposal up to the level of others through successive
rounds of discussions--by asking DelaBarre questions which repeated the RFP
requirements and seemed to "hint/suggest to DelaBarre as to how to change
their proposal." Protester's Comments at 1. The short answer is that
technical leveling is no longer specifically prohibited by the FAR. Dynacs
Eng'g Co., Inc., B-284234 et al., Mar. 17, 2000, 2000 CPD para. 50 at 4. More
importantly, the questions to which Imagine objects--for example, some
indicated to DelaBarre that its costs were too high and others provided it
the opportunity to address matters Imagine believes DelaBarre, as the
incumbent, should have addressed in its initial proposal--were totally
appropriate. The questions were designed to provide DelaBarre an opportunity
to improve its proposal, including the correction of aspects which initially
may not have met the RFP's requirements, which is a legitimate goal of
discussions.

BIAS

Imagine argues that NSF was biased against it, ostensibly because of its
successful effort to have the procurement changed from a small business
set-aside to a HUBZone set-aside. As evidence of this bias, Imagine points
to the agency's decision to include its proposal in the competitive range
despite its low technical score.

We will not attribute bias to an agency on the basis of inference and
supposition, Five-R Co., B-288190, Sept. 10, 2001, 2001 CPD para. 163 at 4;
without strong evidence to support such a conclusion, we will not assume
that agency employees acted in bad faith. Communication Techs., Inc.,
B-283491, B-283491.2, Nov. 30, 1999, 99-2 CPD para. 104 at 7. Here, the record
contains no evidence--beyond the protester's speculation--of bias or bad
faith. Specifically, there is no basis to conclude that the agency's
decision to place Imagine's lower-rated proposal in the competitive range
resulted from anything but the agency's good faith judgment that the
proposal could be made viable through discussions. We note in this regard
that, at the time the competitive range was established, Imagine's and
Offeror 4's proposals had similar scores, which were much closer to the
initial scores of the higher-rated offerors. [1]

COST ADJUSTMENT

Imagine challenges the net addition of approximately $670,000 to its cost
proposal in the course of the cost evaluation. According to Imagine, these
costs were inconsistent with its proposed rates and were already included in
its proposal. This argument is academic. While Imagine has responded to the
agency's explanation for most of the adjustments, it has effectively
conceded that one of them was reasonable--specifically, it has not
challenged the addition of a 7-percent fee to its overall cost. [2] When
Imagine's proposed cost is adjusted upward solely by this figure (i.e.,
disregarding the other upward adjustments), its MPC exceeds DelaBarre's by
more than $87,000. Since Imagine's technical score also was lower than
DelaBarre's, this argument, even if successful, would have no effect on the
award. We will not consider such academic questions. Dyna-Air Eng'g Corp.,
B-278037, Nov. 7, 1997, 97-2 CPD para. 132.

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. Imagine questions how its proposal score dropped from 74.7 points in the
initial evaluation to 55.8 in the final evaluation. Protester's Comments at
15. The agency's evaluation summary explained the point drop as due to a
number of reasons, including the agency's recognition during negotiations
that it "would be difficult for [Imagine] to succeed without extensive
involvement by NSF," and the lack of detailed responses on how Imagine would
manage tasks. AR, Tab 7, at 13. Since Imagine has ignored this explanation
in raising its assertion, we view this argument as mere disagreement with
the agency's judgment, which is not a sufficient basis for sustaining a
protest. BFI Waste Sys. of Nebraska, Inc., B-278223, Jan. 8, 1998, 98-1 CPD
para. 8 at 2.

2. The adjustment was based on the fact that Imagine's final revised
proposal specifically agreed to the application of an up to 7-percent award
fee, but its final cost proposal omitted that fee.