TITLE: E.L. Hamm & Associates, Inc., B-290783; B-290783.2, September 30, 2002
BNUMBER: B-290783; B-290783.2
DATE: September 30, 2002
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E.L. Hamm & Associates, Inc., B-290783; B-290783.2, September 30, 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: E.L. Hamm & Associates, Inc.
File: B-290783; B-290783.2
Date: September 30, 2002
Michael L. Sterling, Esq., and Walter T. Camp, Esq., Vandeventer Black,
for the protester.
Jennifer S. Zucker, Esq., and Peter D. Dipaola, Esq., Department of the
Army, for the agency.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that agency improperly failed to make final determination,
required by solicitation, as to whether protester's proposal was
acceptable or unacceptable is denied where record demonstrates that source
selection official reviewed the evaluation results and concluded that the
proposal was unacceptable.
DECISION
E.L. Hamm & Associates, Inc. protests the rejection of its offer under
request for proposals (RFP) No. DABT60-01-R-0020, issued by the Department
of the Army for visual information services. Hamm asserts that the Army
improperly evaluated its proposal.
We deny the protest.
The solicitation, issued as part of a commercial activities study pursuant
to Office of Management and Budget (OMB) Circular A-76 to select a private
source to compete against the government's *most efficient organization*
(MEO), was initially issued as a small business set-aside. However, the
Army did not receive any offers and
re-advertised the procurement on an unrestricted basis. The solicitation
provided that the offeror submitting the technically acceptable proposal
with the lowest realistic cost would be selected to compete against the
MEO. RFP at 19. There were four evaluation factors: technical (with
subfactors for phase-in, staffing plan, technical approach and work
scheduling); management (organizational structure, management procedures
and resumes for key personnel); past performance/experience; and cost.
The technical factor was more important than the management, past
performance/experience and cost factors. Since the RFP anticipated the
award as a cost-plus-award-fee contract, it provided that cost would be
evaluated for realism, and that an unrealistically high or low cost
proposal could be eliminated without further consideration. RFP at 21.
The solicitation also provided that the Army intended to select an offeror
to compete with the MEO without holding discussions.
Two proposals were submitted and first evaluated by the individual members
of the source selection evaluation board (SSEB), who assigned each factor
and subfactor an adjectival rating of acceptable, unacceptable or
marginal. Contracting Officer's Statement (COS) at 4, 5. The SSEB then
met and assigned a consensus rating to each factor and subfactor, and to
the proposal overall. Id. at 4, 6. During the consensus evaluation,
Hamm's proposal was rated marginal for the management and technical
factors and acceptable for past performance/experience, id. at 6, 7, and
the cost/price analyst determined that Hamm's proposed
cost*[DELETED]--compared to the agency's estimate of Hamm's most probable
cost (MPC)*[DELETED]--was unrealistically low. Id. at 8.
The conclusions of the SSEB and the cost/price analyst were consolidated
in a price negotiation memorandum (PNM) that recommended that Hamm's
proposal be given no further consideration because of its numerous and
serious staffing deficiencies, the failure of its technical approach to
recognize or mitigate technical, schedule and cost risks, and its
unrealistic cost. PNM at 12. The source selection authority (SSA)
reviewed the technical and cost evaluations and concluded that Hamm's
proposal was technically unacceptable and did not provide a realistic
cost. Source Selection Decision (SSD). The SSA therefore eliminated
Hamm's offer from further consideration. The second offeror was also
found unacceptable and the A-76 study therefore was terminated. Id.
Hamm challenges the technical evaluation on the narrow basis that the
SSA's rejection of its proposal as unacceptable is contrary to the terms
of the solicitation. Specifically, Hamm notes that the solicitation
provided that initial technical proposals could be evaluated as
acceptable, marginal or unacceptable, but that the final evaluation was to
result in a rating of only acceptable or unacceptable. Hamm's initial
proposal was rated marginal, and Hamm complains that the Army eliminated
it before making a final determination that the proposal was unacceptable
despite the fact that its proposal was rated marginal or acceptable for
every factor and subfactor, and did not receive any unacceptable ratings.
Hamm recognizes that the SSA stated in the SSD that its proposal was
unacceptable, but argues that this determination did not meet the
requirement for a final determination because it was not adequately
documented and because the SSA did not exercise independent judgment.
This argument is without merit. In the PNM, the SSEB concluded that the
proposal should not be further considered because it did not believe that
Hamm could successfully perform. In this regard, the SSEB rated Hamm's
proposal overall marginal, defined in the RFP as follows: *any proposal
that contains significant weaknesses. The contractor could possibly
perform the services, but only if these weaknesses are corrected.* RFP at
19. Since no discussions were held, however, and Hamm thus did not revise
its proposal, the weaknesses remained and provided a reasonable basis for
the SSA to conclude that, notwithstanding the adjectival ratings assigned
by the evaluators, the proposal was unacceptable.[1]
As for Hamm's further argument regarding documentation, an SSA decision is
adequately documented where the SSA relied on reports and analyses
prepared by others that are adequately documented. See Federal
Acquisition Regulation (FAR)
S: 15.308; All Star Cabaco Enter., Joint Venture, B-290133,
B‑290133.2, June 25, 2002, 2002 CPD P:__. Here, the SSA based his
source selection decision on his review of the findings of the SSEB and
the cost/price analyst, which were presented to the SSA at an oral
briefing. At that briefing the SSA received all reports, analyses and
evaluations compiled during the procurement and discussed those
evaluations with, among other people, the chairman of the SSEB. The
reports received by the SSA included a detailed PNM that thoroughly
discussed the evaluation of Hamm's proposal under each factor and
concluded that the proposal should not be considered further.
Supplemental Agency Report (SAR) at 4. Further, it is clear from the
record that, while the SSA reviewed the PNM prepared by the SSEB and the
cost/price analyst, and based his conclusion on that document, as well as,
among other things, discussions with the chairperson of the SSEB, he
reached an independent determination that Hamm's proposal was
unacceptable. Specifically, the SSD discusses the SSEB and cost/price
analyses and states that the SSA has *determined that E.L. Hamm &
Associates [does not] represent an offer, which is technically acceptable
with [a] realistic cost . . . .*[2]
Hamm also complains that the agency improperly downgraded its proposal
under the technical factor for proposing to cross-utilize personnel. This
basis of protest is untimely. A protest that does not allege a
solicitation impropriety must be filed within 10 days after the protester
knows or should know the basis of protest. Where, as here, a protest
follows a required debriefing, the protest will be considered timely if it
is filed within 10 days after the debriefing. 4 C.F.R. S: 21.1(a)(2)
(2002). Hamm was on notice of the Army's concern regarding the
explanation of its cross-utilization plan based on a June 14 letter from
the Army to Hamm. Since Hamm then received a debriefing on June 21, it
was required to challenge this aspect of the evaluation no later than July
1, 10 days later. Since Hamm did not raise the issue until August 8, it
is untimely.
Hamm also argues that the Army improperly determined that Hamm's proposed
cost was unrealistic and, further, that the Army should have held
discussions with Hamm regarding its allegedly unrealistic cost. Our
Office will not sustain a protest unless the protester demonstrates that
it was prejudiced by the agency's actions, that is, unless the protester
demonstrates that, but for the agency's actions, it would have had a
substantial chance of receiving the award. Statistica, Inc. v.
Christopher,
102 F.3d 1577, 1581 (Fed. Cir. 1996); West Coast Unlimited, B-281070.2,
Aug. 18, 1999, 99-2 CPD P: 40 at 4. As discussed above, the Army properly
determined that Hamm's proposal was technically unacceptable; Hamm
therefore was ineligible to receive the award, even if we assume,
arguendo, that its proposed cost was realistic. It follows that Hamm was
not prejudiced by any impropriety in the realism analysis. We therefore
will not consider this basis of protest.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] We also note that since the solicitation advised offerors that the
agency intended to award the contract without holding discussions, no
discussions were required. Century Elevator Inc., B-283822, Dec. 20,
1999, 99-2 CPD P: 112 at 4.
[2]Hamm attaches significance to the fact that the SSA received the
reports at an oral briefing, arguing that the SSA could not have had
enough time to adequately review the documents before making his
decision. This argument is without merit. The record indicates that the
SSA reviewed the PNM, SAR at 4, which consolidated the technical and cost
evaluations, and was not voluminous--it consisted of only 12 pages.
Moreover, the record indicates that the SSA not only received the PNM at
the briefing, but also engaged in considerable discussion about the
evaluation results with, among others, the chairman of the SSEB. Agency
Report at 9. There therefore is no basis for finding that the SSA did not
adequately understand the evaluation record before concluding that Hamm's
proposal was unacceptable.