TITLE:  Kathryn Huddleston and Associates, Ltd., B-289453, March 11, 2002
BNUMBER:  B-289453
DATE:  March 11, 2002
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Decision

Matter of: Kathryn Huddleston and Associates, Ltd.

File: B-289453

Date: March 11, 2002

Kathryn Huddleston for the protester.

Judith P. Morrison for Act II Management Consultants, the intervenor.

Christopher J. Wood, Esq., and Craig R. Schmauder, Esq., Department of the
Army, for the agency.

Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

In a procurement under simplified acquisition procedures where the agency
elected to establish a competitive range and conduct discussions, the agency
improperly excluded the protester's low-priced quote from the competitive
range and conducted discussions with only the awardee, where the protester's
and awardee's quotes failed to satisfy the same solicitation requirements
and the record did not support the agency's determination that the protester
would not have had a realistic chance of receiving award if it had been
afforded discussions.

DECISION

Kathryn Huddleston and Associates, Ltd. (KHA) protests the rejection of its
quote and award of a purchase order to Act II Management Consultants under
request for quotations (RFQ) No. DACW87-01-Q-0160, issued by the U.S. Army
Corps of Engineers for educational services. KHA challenges the evaluation
of its quote and complains that the agency conducted discussions with only
Act II.

We sustain the protest. [1]

The RFQ was issued electronically as a combined synopsis and solicitation as
a small business set-aside. [2] The RFQ identified the procurement as a
commercial item acquisition under Federal Acquisition Regulation (FAR) part
12 and, as amended, provided that the agency would use simplified
acquisition procedures under FAR part 13. Agency Report, Tab D-1, Combined
RFQ/Synopsis (Sept. 13, 2001); Tab D-4, Revised Combined RFQ/Synopsis
Amendment (Oct. 5, 2001).

The solicitation requested quotes for all services and material necessary to
revise and present an instructional course entitled "Instructional Methods."
Vendors were informed that the course was designed to "give students skill
in developing and conducting any type of training, presentations, and
briefings." Course topics included "Systematic Approach to Training, roles
of the instructor, instructional objectives, communications skills, lesson
planning, instructional aids, the adult learner, methods of instruction,
classroom management, counseling, tests, and questioning techniques." In
addition, the RFQ provided that the students in the Instructional Methods
course would either have been identified by the Corps as potential
instructors in the Proponent Sponsored Corps of Engineers Program or "have
been charged with developing and conducting any type of training,
presentations, or briefings." The RFQ provided for the award of a
fixed-price order for four class sessions during a base year and for a
specified number of classes in the 2 option years. Agency Report, Tab D-1,
Combined RFQ/Synopsis (Sept. 13, 2001), at 1.

The RFQ required vendors to provide two instructors (a lead and an assistant
instructor) for each session, and stated experience and educational
qualification requirements for the instructors. Vendors were required to
provide resumes for the proposed instructors with their quotes establishing
the following:

The lead instructor should have 200 hours of teaching experience during the
past 5 years in courses designed to teach instructional methodology to
instructors and/or trainers.

. . . .

The assistant instructor should have 100 hours of teaching experience during
the past 3 years in courses designed to teach instructional methodology to
instructors and/or trainers.

For both instructors, the RFQ required that the teaching experience include:

development of learning objectives, test items, lesson planning, systematic
approach to training, development and use of instructional aids and
classroom management.

In addition, vendors were required to "[i]dentify proposed instructors
scheduled to teach each course session . . . [and] identify proposed lead
and assistant instructors scheduled to teach each course session." Id. at 2.

Around October 5, the Corps issued a solicitation amendment, which, for the
first time, stated evaluation criteria. As amended, the RFQ provided, among
other things, that quotes would be evaluated under three factors: (1)
teaching experience, (2) educational qualifications, and (3) price. Factors
(1) and (2) were stated to be equal in importance, and factor (3) was stated
to be significantly less important than factors (1) or (2). Agency Report,
Tab D-4, Revised Combined RFQ/Synopsis Amendment (Oct. 5, 2001), at 2. The
agency states that the amendment was not directly distributed to vendors,
but was published electronically on the CBDNET (www.cbdnet.access.gpo.gov)
and the Federal Business Opportunities (FedBizOpps)
(www.arnet.gov/FedBizOpps/) websites. [3] Agency Legal Memorandum at 4. The
amended solicitation extended the date for submission of quotes from
September 27 to October 9. [4] Agency Report, Tab D-4, Revised Combined
RFQ/Synopsis Amendment (Oct. 5, 2001), at 3.

The Corps received eight quotes, including KHA's and Act II's, by the
original September 27 date for submission of quotes. [5] The quotes were
evaluated by an "informal technical evaluation board." Contracting Officer's
Statement at 6.

The agency found that KHA's quote did not show that its proposed lead and
assistant instructors had the required experience in courses designed to
teach instructional methodology to instructors and/or trainers.
Specifically, the Corps found that, although KHA's quote identified numerous
courses that the lead instructor had taught, these courses did not
demonstrate relevant experience (that is, experience teaching instructional
methodology to teachers). With respect to the proposed assistant instructor,
KHA listed a number of courses the assistant instructor had conducted that
appeared to be relevant, but those courses were not within 3 years, as
required by the RFQ. Agency Report, Tab G-2, KHA Consensus Evaluation, at
1-2. KHA'a quote received a red adjectival rating for teaching experience,
which, according the agency's source selection plan, reflected a proposal
that "fail[ed] to meet standards and many requirements." Id.; Agency Report,
Tab G-1, Source Selection Plan, at 4. KHA's quote was assessed as
purple/very good, however, for the educational qualifications of its
proposed instructors. Agency Report, Tab G-2, KHA's Consensus Evaluation, at
2.

The Corps found that Act II's quote also did not show that the firm
satisfied all the solicitation requirements. Specifically, the evaluation
board determined that although Act II's quote showed that the firm's
proposed instructors had taught relevant "topics," the quote contained
inconsistencies in the amount of experience claimed, did not show that the
proposed instructors had the required amount of experience, and did not
identify for each course session which instructors would be the lead and
assistant instructors. [6] Agency Report, Tab G-3, Act II's Consensus
Evaluation, at 3-4. Act II's quote received a yellow adjectival rating for
teaching experience, which was stated to reflect a "proposal that has
numerous weaknesses and does not meet several requirements." Id.; Agency
Report, Tab G-1, Source Selection Plan, at 4. Act II's quote was assessed as
"green+" for the educational qualifications of its proposed instructors. [7]
Agency Report, Tab G-3, Act II's Consensus Evaluation, at 5.

The agency established what it characterized as a "competitive range" that
consisted of only Act II's quote because, according to the contracting
officer, only Act II's quote "was determined to meet the minimum
requirements of the solicitation," and that the "eliminated quotes
[including KHA's] could not be cured with clarifications or discussions."
Contracting Officer's Statement at 6. Discussions were conducted with Act
II, which provided further information to establish that its proposed
instructors satisfied the solicitation's experience requirements and to
identify which instructors would teach what courses and who would be lead
instructors and who would be assistant instructors. Agency Report, Tab G-6,
Act II's Revised Quote. A purchase order was awarded to Act II, and KHA
protested to our Office, after receiving a letter explaining why KHA had not
received the award. Agency Report, Tab H-5, Notification of Unsuccessful
Quote (Nov. 27, 2001).

KHA raises numerous challenges to the conduct of this procurement.
Specifically, KHA complains that the Corps conducted discussions only with
Act II, despite KHA's lower proposed price. KHA challenges the evaluation of
its quote, arguing variously that its proposed instructors actually have the
required experience that the Corps found lacking and that the Corps failed
to contact its listed references to ascertain the extent of its instructors'
experience. [8] KHA also provides further information that it asserts it
could have provided during discussions to establish that its instructors
have the requisite experience. Protester's Comments at 9, 11-13.

As noted above, the Corps conducted this acquisition using simplified
acquisition procedures. Simplified acquisition procedures are designed to,
among other things, reduce administrative costs, promote efficiency and
economy in contracting, and avoid unnecessary burdens for agencies and
contractors. FAR sect. 13.002; Sawtooth Enters., Inc., B-281218, Dec. 7, 1998,
98-2 CPD para. 139 at 3. These procedures provide discretion to contracting
officers to use one or more of the evaluation procedures in FAR parts 14 and
15, and do not require formal evaluation plans, the establishment of a
competitive range, or the conduct of discussions. See FAR sect. 13.106-2(b). Our
Office reviews allegations of improper agency actions in conducting
simplified acquisitions to ensure that the procurements are conducted
consistent with a concern for fair and equitable competition and with the
terms of the solicitation. Nunez & Assocs., B-285666, Feb. 10, 1995, 95-1
CPD para. 62 at 2. Although an agency is not required to establish a competitive
range or conduct discussions under simplified acquisition procedures, we
think that where an agency avails itself of these negotiated procurement
procedures, the agency should fairly and reasonably treat quoters in
establishing the competitive range and conducting discussions. See Finlen
Complex, Inc., B-288280, Oct. 10, 2001, 2001 CPD para. 167 at 8-10.

The Corps contends, citing to the FAR part 15 rules, that it fairly and
reasonably established the competitive range. See Legal Memorandum at 15-16.
Under those rules, 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. FAR sect. 15.306(c) allows an agency to establish a competitive range
consisting of only the most highly-rated proposals. Under the regulation,
agencies properly may eliminate proposals that are deemed to have no
realistic prospect for award. SDS Petroleum Prods., Inc., B-280430, Sept. 1,
1998, 98-2 CPD para. 59 at 5-6. Judgments regarding which proposals are included
in the competitive range must be made in a relatively equal manner. An
agency cannot reasonably exclude a proposal from the competitive range where
the strengths and weaknesses found in that proposal are similar to those
found in proposals included in the competitive range. Columbia Research
Corp., B-284157, Feb. 28, 2000, 2000 CPD para. 158 at 4; Nations, Inc.,
B-280048, Aug. 24, 1998, 99-2 CPD para. 94 at 6-10.

In this case, the Corps included only Act II's quote in the competitive
range based upon its determination that only that firm's quote was
acceptable. However, this determination is based upon an error of fact. The
record establishes that Act II's initial quote was not technically
acceptable, as the agency now asserts. That is, the contemporaneous
evaluation documents show that Act II's quote received a yellow/marginal
adjectival rating because the quote did not satisfy all the solicitation
requirements. Specifically, the evaluators found that Act II's quote, like
KHA's, did not show that its proposed instructors satisfied the experience
requirements. In addition, Act II (unlike KHA) failed to identify which
instructors would teach which courses.

The record also does not support the Corps's determination that KHA's quote,
unlike Act II's initial quote, was not susceptible to being made acceptable
through discussions. As explained above, KHA's and Act II's initial quotes
were similarly flawed; that is, both firms failed to demonstrate that their
respective proposed instructors satisfied all the solicitation experience
requirements. The Corps has not explained why Act II's failure to satisfy
the experience requirements could be cured by discussions and KHA's similar
failure could not. Also, the Corps has not rebutted KHA's protest statements
that KHA could provide further information or revise its quote, such that
KHA's quote would become acceptable.

The Corps nevertheless argues that KHA's lower-priced quote could reasonably
be excluded from the competitive range because KHA had no realistic prospect
of receiving award. Legal Memorandum at 15-16. We do not find any support
for this conclusion at this stage in the procurement. While it is true that
Act II's quote received a higher adjectival rating than KHA's quote under
the teaching experience factor (a yellow/marginal rating as compared to
KHA's red/unacceptable rating), KHA received a higher adjectival rating
under the equally important educational qualifications factor (a purple/very
good rating as compared to Act II's green+/acceptable rating). Also, KHA
quoted a much lower price than did Act II. Assuming that KHA could provide
information, or revise its quote, to establish the acceptability of its
quote, the Corps would be required to perform a cost/technical tradeoff
analysis to determine which quote represented the best value to the
government. Given KHA's much lower price and higher educational
qualification rating (at the time of initial quotes), we find no reasonable
basis for the conclusion that KHA would have had no realistic chance of
receiving award.

In sum, we find unreasonable the Corps's competitive range determination
that included only Act II's quote. In making this judgment, the Corps
apparently mistakenly believed that Act II's quote satisfied all the
solicitation requirements and was acceptable. Instead, the record shows that
two firms' quotes suffered from similar informational weaknesses that were
susceptible of correction through discussions. We sustain KHA's protest
because the Corps failed to treat the two firms fairly and equally with
respect to conducting discussions.

We recommend that the Corps include KHA's quote in the competitive range,
conduct discussions with KHA and Act II, request revised quotes, and make a
new source selection decision. If KHA's quote is selected for award, the
Corps should terminate the purchase order issued to Act II and issue a
purchase order to KHA. [9] We also recommend that KHA be reimbursed its
reasonable costs of filing and pursuing the protest. 4 C.F.R. sect. 21.8(d)(1)
(2001). The protester should submit its certified claim, detailing the time
expended and costs incurred, directly to the Corps within 60 days of
receiving this decision. 4 C.F.R. sect. 21.8(f)(1).

The protest is sustained.

Anthony H. Gamboa

General Counsel

Notes

1. Because a protective order was not issued in connection with this case,
the language in our decision, which is based in part upon source selection
sensitive and confidential information, is necessarily general.

2. The combined RFQ/Synopsis was posted on-line on the electronic Commerce
Business Daily (CBDNET) site (at www.cbdnet.access.gpo.gov) on September 13,
2001, and subsequently published in print form in the CBD on September 17.

3. After October 1, 2001, the contracting officer was required to transfer
notices to the governmentwide point of entry (GPE), which is the FebBizOpps
website. See FAR sect. 5.003. When transmitting notices to the GPE before
January 1, 2002, contracting officers were required to direct the GPE to
forward the notice to the CBD. FAR sect. 5.201(b)(2).

4. The protester states that it never saw and was never apprised of this
amendment prior to submitting its quote and that it submitted its quote
believing that this was not to be a "best value" award. Protest at 1;
Protester's Comments at 7-8. The Corps states that although it "cannot
confirm or deny that this amendment was published on the FedBizOpps
[website]" (the Corps says nothing in this regard with regard to the
CBDNET), its former contract specialist, to the "best of his recollection,"
informed KHA that changes to the solicitation would be posted on the
electronic bulletin board maintained by the Corps of Engineers, Engineering
and Support Center, Huntsville, Alabama. Agency Legal Memorandum at 4;
Agency Report, Tab H-8, Affidavit of Contract Specialist (Jan. 4, 2002). KHA
denies that it was so informed. Protester's Comments at 7. We need not
resolve this dispute since we sustain the protest and recommend reopening
discussions.

5. On October 10, Act II "resubmitted its pricing information from its
original quote," which the Corps did not utilize because it was after the
amended date stated for submission of quotes and because it was identical to
the pricing information submitted with Act II's original quote. Contracting
Officer's Statement at 6.

6. In response to our request, made after receipt of the agency's report,
the Corps submitted to us a typed transcription of the nearly illegible
hand-written contemporaneous consensus evaluation of Act II's initial quote.
Agency Submission (Feb. 4, 2002), Tab AB-4. The typewritten document
purports to show that Act II's quote does not contain any deficiencies (only
disadvantages), whereas the handwritten evaluation documents appeared to
indicate evaluated deficiencies as well as disadvantages. Nonetheless, the
differences between the two documents are not significant, since both
documents establish that Act II's quote did not satisfy all of the
solicitation requirements, and this fact is not altered by the agency's
characterization of Act II's failure to meet the requirements as a
disadvantage rather than a deficiency. See Bank of America, B-287608,
B-287608.2, July 26, 2001, 2001 CPD para. 137 at 12 n.21 (an agency's
characterization of a proposal's failure to satisfy solicitation
requirements as not being a deficiency is not controlling).

7. A green adjectival rating was said to reflect a "proposal that meets the
minimum contractual requirements required by the solicitation." Agency
Report, Tab G-1, Source Selection Plan, at 4.

8. KHA admits, however, that, at least with respect to one of its proposed
assistant instructors, the firm "erred in not clarifying" that person's
experience in its quote. Protester's Comments at 9.

9. Given our recommendation to open discussions with KHA, we do not address
KHA's other complaints regarding the evaluation of the firm's quote and the
failure to advise KHA of the amended solicitation. KHA also complains that
the Corps's actions in this case reflected bias against KHA. Because
government officials are presumed to act in good faith, we do not attribute
unfair or prejudicial motives to them on the basis of inference or
supposition. Ameriko Maint. Co., B-253274,
B-253274.2, Aug. 25, 1993, 93-2 CPD para. 121 at 5. Thus, the protester must
provide credible evidence clearly demonstrating bias and that the agency's
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. KHA has not shown that the agency's conduct of this
procurement was motivated by bias.