TITLE: Global Business and Legal Services, B-290381.2, December 26, 2002
BNUMBER: B-290381.2
DATE: December 26, 2002
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Global Business and Legal Services, B-290381.2, December 26, 2002
Decision
Matter of: Global Business and Legal Services
File: B-290381.2
Date: December 26, 2002
Paula Mullen for the protester.
Marion Cordova, Esq., Department of Agriculture, for the agency.
Jacqueline Maeder, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest challenging evaluation of protester's proposal is denied where
record shows that agency evaluated proposal in accordance with the
solicitation criteria, and that its conclusions were reasonable.
DECISION
Global Business and Legal Services protests the rejection of its proposal
under request for proposals (RFP) No. RP-31ME-2-0001, issued by the Rural
Development Agency, Department of Agriculture, for legal services. Global
argues that the agency improperly evaluated its proposal.
We deny the protest.
The RFP, issued February 22, 2002, contemplated the award of multiple
indefinite‑delivery, indefinite-quantity contracts for nationwide
legal services for a base year, with 4 option years. The legal services
required are specific to the work performed by the Rural Utilities
Service. The RFP required that the contractor, *as a minimum, maintain
legal expertise in the following practice areas: corporate, tax,
bankruptcy, project finance, real estate, and energy law applicable to
electric utilities,* and stated that *[a]dditional expertise in laws
applicable to cooperatives, environmental law and secured transactions may
be required.* RFP S: C.3.1. Section L of the RFP required that proposals
include key personnel and corporate resumes, and that the key personnel
resumes indicate, among other things, education, background, recent
(within the past 5 years) experience, and specific professional or
technical accomplishments. Under the heading *Relevant Experience,* the
RFP required that technical proposals include evidence that the offeror
has *extensive experience of being involved at least one third of the
time over the past three (3) years in the following practice areas: 1)
corporate, 2) project finance, 3) lease transactions, and 4) applicable
tax law.* RFP S: L.8(B)(1). The technical proposal also was to *include
a brief overview of the partner and associate level staffing depth for
each of the applicable practice areas listed in Section C.* Id.
Award was to be made to the responsible offeror whose technically
acceptable proposal offered the best value to the government based on the
following evaluation factors (and subfactors): technical (relevant
experience, staffing, subcontracting), past performance, and price. The
three evaluation factors were equal in importance, and the first two
technical subfactors were more important than the third. The RFP noted
that award may be made to other than the lowest cost proposal based on
superior technical features, predominately focusing *on the amount of
'extensive experience' held by key personnel and corporate technical
expertise.* RFP S: M.1(d).
Twelve proposals, including Global's, were received by the March 25
closing time. A four-member technical evaluation panel (TEP) evaluated
the proposals by assigning them an adjectival rating of exceptional,
acceptable, marginal, or unacceptable under each factor and subfactor.
Eight of the proposals were rated technically acceptable; four, including
Global's (ranked tenth technically) were rated technically unacceptable.
Global's unacceptable technical rating was based on its unacceptable
rating under the staffing and relevant experience technical subfactors; it
was rated exceptional for past performance, and received a high
performance risk rating.
Regarding relevant experience, the TEP found that Global's proposal
demonstrated no significant utility or energy transactional experience, no
rural electric cooperative utility experience or energy financing
experience, and no depth in the required fields of bankruptcy, tax,
environment, project finance, or energy law, as applied to electric
utilities. As for staffing, the TEP's evaluation noted that Global's
proposal is *really about one limited person rather than a broad based law
firm* and that the person's experience *is extremely limited in the energy
or utility transactions.* [1] Agency Report (AR), Tab G, TEP's Final
Memorandum, at 5. The TEP recommended award to the eight offerors with
acceptable technical rankings, and the contracting officer, following the
TEP's recommendation, awarded contracts to these eight companies. After a
September 23 debriefing, Global filed this protest.
Global argues that the RFP's use of the word *applicable* in describing
the required legal expertise--where the RFP required expertise in
corporate, tax, real estate and energy law *applicable* to electric
utilities--was misleading. The protester asserts that, while the agency
apparently intended the word to indicate that expertise--for example, in
corporate and tax law--was to be related to electric utilities, it was not
apparent that this narrow definition was intended. In this regard, Global
notes that Webster's dictionary defines *applicable* as *capable of being
put to use or put into practice.* Protester's Comments at 2-3. Global
claims that its proposed key personnel's expertise in the specified areas,
while not related specifically to electric utility work, nevertheless can
be applied to electric utilities.
This argument is without merit. Simply put, we think that the term
*applicable,* used in reference to required expertise in the context of a
solicitation for electric utility-related legal services, was sufficient
to convey an intent by the agency to evaluate electric utility-related
expertise. The protester's contrary view is flawed because it would
accord the term *applicable* no effect. In this regard, since the areas
of law identified in the RFP are general in nature (e.g., tax, corporate,
bankruptcy), they already are *capable of being put to use or put into
practice* in the area of electric utilities; there thus would have been no
reason for the agency to use the term *applicable* in describing the
required areas of expertise. In contrast, under the agency's
interpretation, the term *applicable* was necessary to alert offerors to
the need for their expertise to be related, or relevant, to electric
utilities. We note that the dictionary lists the word *relevant* as
synonymous to *applicable.* See Webster's Dictionary at 97 (9TH ed.
1987). We conclude that the agency reasonably downgraded Global's
proposal for lack of electric utility-related expertise.[2]
Global argues that the agency improperly found that its proposal did not
demonstrate relevant experience. It recites the experience of its key
personnel in its protest submissions, and notes that its proposal showed
additional experience in cooperatives, environmental law and secured
transactions.
The evaluation of technical proposals is a matter within the discretion of
the contracting agency, since the agency is responsible for defining its
needs and the best method of accommodating them. Mesa, Inc., B-254730,
Jan. 10, 1994, 94-1 CPD P: 62 at 5. In reviewing an agency's technical
evaluation, we will not reevaluate the proposals; rather, we will examine
the record to ensure that the evaluation was reasonable and consistent
with the RFP evaluation criteria and applicable procurement laws and
regulations. Id.
The evaluation here was unobjectionable. The record shows that Global
offered four key personnel, including a senior partner, junior partner,
senior associate and junior associate.[3] As noted in the agency's
evaluation, we find little or no utility, environmental, energy, or
cooperative law expertise, and no depth of expertise, as required by the
solicitation. There also is nothing to suggest that the protester has
extensive experience in the specified areas of the law as they relate to
cooperatives or electric utilities. Indeed, while the proposed senior
partner appears to have some amount of the required expertise, the other
three proposed attorneys have little; two have tax and corporate law
experience unrelated to electric utilities or cooperatives, and one has
experience with gas utility rather than electric utility law. While
Global makes the general statement that its personnel have expertise in
cooperatives, environmental law and secured transactions, it does not
point to anything specific in its proposal to support this contention, and
does not specifically rebut the agency's determination that it lacks depth
of experience in the areas of law required under the RFP. Based on this
record, we have no reason to object to the evaluation of Global's
proposal.
Global argues that, since it is a small business, the agency was required
to refer the rejection of its proposal to the Small Business
Administration (SBA) for Certificate of Competency (COC) review.
Protester's Comments at 6. However, traditional responsibility factors,
such as experience, may be used for the comparative evaluation of
proposals in relevant areas; where a proposal is determined to be
deficient pursuant to such an evaluation, the matter is one of relative
technical merit, not responsibility, and does not require a referral to
the SBA. See Advanced Resources Int'l, Inc.--Recon., B-249679.2, Apr. 29,
1993, 93-1 CPD P: 348 at 2. The agency here found that Global lacked
adequate required expertise, and downgraded its proposal in the technical
evaluation. Since this was not a nonresponsibility determination, no
referral to SBA was required. See Micronesia Media Distributors, Inc.,
B‑222443, July 16, 1986, 86-2 CPD P: 72 at 2.
The protester also asserts that, because its past performance rating was
exceptional, its technical capability rating should have been at least
acceptable, since past performance demonstrates that it possesses the
technical capability and expertise to perform the work. Protester's
Comments at 4. This argument also is without merit. The evaluation of
Global's proposal under the two evaluation factors need not be the same,
since the factors assessed different things: while Global's past
performance rating indicated exceptional performance on prior contracts,
its unacceptable rating under the technical factor indicated a lack of
required expertise that the agency determined was necessary to perform
this specific requirement. Thus, Global's proposal's different ratings
under the two factors were reasonable.
Finally, the protester complains that the agency should have set the
procurement aside for small business, improperly failed to evaluate the
subcontracting plans of the other offerors, and was biased against small
businesses.
Global's set-aside argument is untimely. Under our Bid Protest
Regulations, protests based upon alleged solicitation improprieties (such
as the failure to set a procurement aside for small businesses) must be
filed prior to the time set for receipt of initial proposals. 4 C.F.R. S:
21.2(a)(1) (2002). Global did not raise this argument until after award.
Global's subcontracting plan argument is without merit; the record shows
that the agency did evaluate the subcontracting plans. See AR, Tab G, TEP
Final Memorandum. As for Global's allegation of bias, government
officials are presumed to act in good faith, and we will not attribute
unfair or prejudicial motives to them on the basis of inference or
supposition. Triton Marine Constr. Corp., B-250856, Feb. 23, 1993, 93-1
CPD P: 171 at 6. Here, there is no evidence of bias or bad faith on the
part of the agency.
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] It appears that the agency used the terms *expertise* and *experience*
interchangeably in evaluating the proposals.
[2] Even if the protester were correct that the solicitation did not
require legal expertise or experience relating to electric utilities, the
agency properly could rate Global's general experience unfavorably
compared to other offerors' specific experience. See Chant Eng'g Co.,
Inc., B-280250, Aug. 7, 1998, 98-2 CPD P: 38 at 4.
[3] There was some confusion over the evaluation of the protester's key
personnel resumes, as revealed during the development of the protest
record. While the agency evaluated their experience based on information
included in Global's proposal, it was not aware that Global had submitted
actual resumes. This was because, while Global submitted copies of its
technical proposal in plastic sheaths at the front of a three-ring binder,
it provided the resumes outside of the sheathed copies, as separate, loose
papers in the back of the binder. Since the proposal itself included
experience information, the agency assumed that this was the *resumes,*
and did not search through the binder for actual resumes. Although Global
asserts generally that it was *substantially and irrevocably damaged* by
the agency's failure to review its resumes, Protester's Supplemental
Comments, Nov. 15, 2002, at 2, it is not apparent how this could be. In
this regard, the proposal that the agency evaluated largely repeated the
experience information in the resumes, and Global points to no information
in the resumes that addressed the concerns that led the agency to
downgrade its proposal.