TITLE: Avalon Integrated Services Corporation
BNUMBER: B-290185
DATE: July 1, 2002
**********************************************************************
Avalon Integrated Services Corporation, B-290185, July 1, 2002
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective
Order. This redacted version has been approved for public release.
Decision
Matter of: Avalon Integrated Services Corporation
File: B-290185
Date: July 1, 2002
John E. Jensen, Esq., and Daniel S. Herzfeld, Esq., Shaw Pittman, for the
protester.
James J. Regan, Esq., John E. McCarthy, Jr., Esq., and Daniel R. Forman,
Esq., Crowell & Moring, for ICF Consulting, Inc., an intervenor.
Gloria Hardiman-Tobin, Esq., Federal Highway Administration, 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
1. Protest that task order exceeds scope of vendor's Federal Supply
Schedule (FSS) contract is denied where vendor holds FSS contract for
pertinent schedule item number and vendor's FSS contract includes each of
the labor categories designated in the task order.
2. In competitive procurement under the FSS program, agencies are not
required to conduct discussions, even in the absence of a solicitation
clause warning vendors that award might be made without discussions.
3. In competitive procurement under the FSS program, where solicitation
provided for evaluation of written proposals followed by oral presentations
by "offerors found to be in the competitive range," contracting agency was
not required to hold discussions with vendors prior to selecting vendor with
which to place order; at least in the context of an FSS purchase, retention
of proposal in a competitive range does not create a right to discussions.
DECISION
Avalon Integrated Services Corporation protests the issuance of a task order
to ICF Consulting, Inc. under its Federal Supply Schedule (FSS) contract,
pursuant to request for proposals (RFP) No. PR#45-02-2011, issued by the
Federal Highway Administration (FHWA) for strategic support communications
services. The protester contends that ICF's schedule contract does not
include several of the schedule item numbers (SIN) under which services are
sought; that the agency improperly failed to conduct discussions with it;
and that the agency misevaluated its proposal.
We deny the protest.
The RFP, which sought proposals to furnish technical, editorial, graphics,
and other support services to FHWA's Office of Research, Development, and
Technology and in support of the agency-wide Research and Technology
program, was issued on January 31, 2002, to seven vendors holding contracts
under General Services Administration (GSA) Schedule 738, Marketing, Media
and Public Information Services. The solicitation identified the staff
positions to be filled and furnished an estimate as to the level of effort
required for each. A period of performance not exceeding 60 months (a base
year, plus four 1-year options) was contemplated.
The RFP provided for a two-phase evaluation process culminating in issuance
of an order to the vendor whose proposal was considered most advantageous to
the government. Under phase I, written proposals were to be evaluated in
accordance with the following criteria:
1. Qualifications of Key Personnel (Primary and Supporting)--30 points
2. Relevant Experience--30 points
3. Management Approach and Understanding of the Government's
Requirements--40 points
a. Proposed team
b. Understanding of Government requirements
c. Plan of performance
d. Innovative approach
The solicitation provided that offerors "found to be in the competitive
range" would then move on to phase II, which would consist of an oral
presentation "addressing criteria published in the Statement of Work." The
oral presentations were to be evaluated in accordance with the same criteria
as the written proposals.
Four vendors submitted proposals prior to the February 22 closing date.
After reviewing and scoring the written proposals, the evaluation panel
invited all four vendors to make oral presentations. The oral presentations
were conducted on March 12, and vendors were then given until March 14 to
submit final prices.
The evaluators assigned ICF's proposal the highest technical rating; in
addition, ICF's overall price of $3,933,138 was lowest. Avalon's price was
$4,679,227.81. On
March 26, the FHWA issued an order to ICF and notified Avalon that it was
not the successful vendor.
Avalon argues that ICF's FSS contract does not include several SINs under
which services are to be provided; accordingly, the protester asserts, the
task order issued to ICF is beyond the scope of ICF's contract. The
protester alleges in this regard that ICF has a contract for SIN 738-8 only,
whereas the solicitation also requires services under SINs 738-2, 738-3, and
738-10.
Schedule 738 is comprised of 12 SINs. SIN 738-2 is for website design and
maintenance services; SIN 738-3 is for trade shows/exhibits and conference
and events planning services; and SIN 738-10 is for commercial photography
services. SIN 738-8 is for full service marketing, media, and public
information services,[1] and the schedule instructs ordering agencies to use
this SIN when their task requires at least two or more services specified
under other SINs.
Avalon holds schedule contracts for SINs 738-1, 738-2, 738-3, 738-4, 738-5,
738-6,
738-8, 738-10, 738-11, and 738-12. ICF holds a contract for only SIN 738-8.
GSA, which is responsible for administering the FSS program, states that in
view of the variety of services identified in the SOW,[2] it believes that
FHWA was correct in using SIN 738-8, which is to be used when two or more
services available under other SINs are needed to fulfill a requirement.
Letter from the Director, Special Program Division, Services Acquisition
Center, GSA, to the Contracting Officer,
Apr. 24, 2002, at 3. Consistent with that view, we think it irrelevant that
ICF, which holds a schedule contract for SIN 738-8, does not also hold a
schedule contract for SINs 738-2, 738-3, and 738-10. We also note, in
connection with the question of whether the scope of the task order issued
to ICF exceeds the scope of its FSS contract, that ICF's schedule contract
includes each of the ten labor categories designated in the task order.
Accordingly, the record does not support the protester's argument that the
task order issued to ICF exceeds the scope of its FSS contract.
Next, Avalon argues that the agency erred in failing to conduct discussions
with it regarding the weaknesses in its proposal. The protester maintains
that discussions were required because the agency established a competitive
range, in which it was included, and Federal Acquisition Regulation (FAR) �
15.306 requires that once a competitive range is established, meaningful
discussions must be conducted with all offerors in it.
As a preliminary matter, the procedures of FAR part 15--including FAR �
15.306, the provision on which Avalon relies--do not govern competitive
procurements under the FSS program. Computer Prods., Inc., B-284702, May
24, 2000, 2000 CPD � 95 at 4. Rather, because the RFP here provided for
issuance of a task order under the selected vendor's FSS contract, the
provisions of FAR subpart 8.4 apply. There is no requirement in FAR subpart
8.4 that an agency soliciting vendor responses prior to issuing an order
under an FSS contract conduct discussions with vendors regarding the content
of those responses. Accordingly, and consistent with the nature of FSS
purchases, we conclude that agencies are not required to conduct
discussions, even in the absence of a solicitation clause warning vendors
that award might be made without discussions.
Further, while the use of the term "competitive range" was probably
inappropriate here--since, at least in a negotiated procurement using FAR
part 15 procedures, the purpose of establishing a competitive range is to
hold discussions with those offerors whose proposals are the most highly
rated, see FAR � 15.306(c)(1)--we do not believe that the agency's decision
to include the vendors' proposals in a "competitive range" created an
obligation to conduct discussions. While it is not clear what purpose is
served by creating a competitive range if no discussions are conducted, the
failure to conduct discussions does not create a basis of protest, at least
in the context of this FSS purchase. In this regard, we note that, under
analogous circumstances, even in a procurement conducted using FAR part 15
procedures, the mere establishment of a competitive range, without more,
would not give rise to a basis for protest. That is, where the solicitation
notified offerors that the agency reserved the right to make award without
discussions, see FAR � 15.306(a)(3), and the agency established a
competitive range but proceeded to make award without holding discussions
with any offeror, we would not entertain a protest by a competitive range
offeror complaining that no discussions had been held.
Finally, the protester argues that the agency erred in evaluating its
proposal, taking issue with various criticisms excerpted from the
evaluators' combined summary evaluation of the written proposals and oral
presentations.
Based on our review of Avalon's proposal and the agency's evaluation of it,
we think that the overall technical score assigned the proposal (84.6 of 100
total points) was reasonable. First, it appears that some of the comments
to which the protester objects had a negligible impact on the protester's
score. For example, in response to the protester's complaint that it was
unfair for the agency to have penalized it for having received awards during
the 1990s, the agency notes that while it did make reference to Avalon's
period of peak performance, as measured by awards, as having been during the
years 1995-1997, this "was an insignificant issue in the overall
evaluation."[3] Agency Supplemental Statement, May 8, 2002, at 5.
Likewise, it is apparent from the excellent scores that the protester's
proposal received under the first two evaluation factors--i.e., 27.3 (of 30)
under the Qualifications of Key Personnel factor and 27.2 (of 30) under the
Relevant Experience factor--that the evaluators did not regard the
protester's proposal as having any major shortcomings with regard to these
factors.
It is clear from the record that the principal evaluation criterion under
which Avalon lost points was the Management Approach and Understanding of
the Government's Requirements factor, under which it received an average
score of 29.8 of 40. It is also clear that the evaluators had a reasonable
basis for downgrading Avalon's proposal under this factor. For example, the
evaluators expressed concern that the proposed project director was not
sufficiently attentive to administrative detail; that the proposal had not
adequately explained how Avalon intended to accomplish the SOW tasks
offsite; that the written proposal had not addressed issues of timeliness in
getting products out or the specifics of workflow, steps, and task
monitoring; and that Avalon had not proposed an innovative approach
addressing the plan of performance. While in the protest Avalon took issue
with these characterizations of its proposal, arguing, for example, that
"[i]t is common knowledge among the people who work with the project manager
that he is fastidious in his attention to detail," Attach. to Protest at 2,
and that it did present "some very practical innovations" in its oral
presentation, Attach. to Protest at 4, these are merely differences of
opinion with the evaluators' judgments, which do not demonstrate the
unreasonableness of the evaluators' findings. Oceaneering Int'l, Inc.,
B-278126, B-278126.2, Dec. 31, 1997, 98-1 CPD � 133 at 6-7. Further, Avalon
made no response to the agency report in this regard, instead simply asking
that the case be decided on the existing record. Based on our review of the
record, we see no reason to object to the agency's evaluation of Avalon's
proposal.
The protest is denied.
Anthony H. Gamboa
General Counsel
-------------------------
[1] The schedule also includes the following other SINs: 738-1--Market
Research, Media Analysis, and Related Services; 738-4--Press and Public
Relations Services; 738-5--Public Education and Outdoor Marketing and Media
Services; 738-6--Radio, Television, and Public Service Announcements
Services; 738-7--Introduction of New Products or Services; 738-9--Direct
Mail Services; 738-11--Commercial Art and Graphic Design Services; and
738-12--Videotape and Film Production Services.
[2] According to GSA, the services to be provided fall under at least four
SINs: 738-2, 738-4, 738-5, and 738-11.
[3] The specific comment to which Avalon refers is as follows: "If measuring
performance by awards . . .then their peak performance was during the years
1995-1997."