TITLE: OCR Services, Inc., B-290946, October 21, 2002
BNUMBER: B-290946
DATE: October 21, 2002
**********************************************************************
OCR Services, Inc., B-290946, October 21, 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: OCR Services, Inc.
File: B-290946
Date: October 21, 2002
Charles M. Tobin, Esq., Jeffrey S. Newman, Esq., Rachael C. Danish, Esq.,
and Kristin G. Hughes, Esq., Foley & Lardner, for the protester.
Mike Colvin, Department of Health & Human Services, for the agency.
Charles W. Morrow, Esq., and Guy R. Pietrovito, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest challenging agency's evaluation of protester's technical proposal
and selection of awardee's higher-rated proposal for award is denied,
where protester has not shown the agency's evaluation and source selection
decision to be unreasonable.
DECISION
OCR Services, Inc. protests the award of a contract to Brogan & Partners
Convergence Marketing under request for proposals (RFP) No. 273-02-P-0004,
issued by the National Institute of Environmental Health Sciences (NIEHS),
for services supporting the NIEHS Health Information Services Project.
OCR, the incumbent contractor, challenges the agency's technical
evaluation and source selection decision.
We deny the protest.
NIEHS and the National Toxicology Program (NTP) publish a number of
documents, including the Environmental Health Perspectives (EHP) journal,
the Reports on Carcinogens, and the NTP's Technical Report Series
(consisting of toxicology, carcinogenesis, and toxicity reports). RFP
Statement of Work (SOW) at 1. These publications are available to
subscribers in hard-copy and electronically on-line from a comprehensive
on-line environmental health information service maintained by NIEHS. The
agency anticipates that *the revenue generated from orders for the
subscriptions to the EHP journals and other NIEHS documents will offset
the cost of the Information Services Project.*[1] Agency Report, Tab 3,
Negotiation Memorandum (June 25, 2002), at 4.
The RFP, issued as a total small business set-aside on March 26, 2002,
provided for the award of a contract for services supporting the NIEHS
Health Information Services Project for a base year with four 1-year
options. The contractor will be responsible for *preparing and printing
the materials, preparing and maintaining the Internet versions . . . ,
marketing the environmental health information service, and managing the
collection of subscription fees and records.* RFP SOW at 2. The
contractor would also be responsible *for proposing (subject to Government
approval) fees (subscription rates, advertisement rates, reprint charges,
etc.) suitable for the development and continuation of a commercially
successful Environmental Health Perspectives On-line.* Id. at 4.
Offerors were informed that, in addition to the fixed price, offerors
would receive a base fee of 6 percent of the fixed price for contract
tasks; in addition, the RFP offered firms the opportunity to request
additional incentive fees for exceeding specified revenue levels. RFP S:
B.
The RFP provided that the basis for award would be a cost/technical
tradeoff and that *paramount consideration shall be given to the
evaluation of technical proposals rather than price.* RFP S: M.3.b. The
following technical evaluation factors and their respective weights were
identified in the solicitation:
1. Technical experience, technical qualifications,
and past performance (30 points)
2. Technical approach and methodology (20 points)
3. Marketing (20 points)
4. Understanding stated objectives (20 points)
5. Fiscal solvency (10 points)
NIEHS received 3 proposals, including OCR's and Brogan's. [2] Proposals
were evaluated by the agency's technical evaluation committee, and only
OCR's and Brogan's proposals were included in the competitive range.
Discussions were
conducted with each firm. Revised proposals were received and evaluated,
as follows:
+------------------------------------------------------------------------+
| |Brogan |OCR |
|-------------------------------------+-----------------+----------------|
|Technical Score (100 max. pts.) |93 |64 |
|-------------------------------------+-----------------+----------------|
|Price/Cost |$18,125,905 |$17,388,645 |
+------------------------------------------------------------------------+
Brogan's superior technical score reflected the evaluators' judgment that
Brogan had presented a proposal with many evaluated strengths and few
weaknesses. Among the proposal strengths underlying Brogan's superior
technical score was that the evaluators found that Brogan had offered an
executive staff with impressive credentials in priority setting and goal
satisfaction and had proposed employing OCR's current on-site support
staff that, the evaluators found, had *demonstrated the ability to handle
contract needs in an exceptional manner.* Also noted by the evaluators
was that Brogan had multiple government and non-government contracts
demonstrating Brogan's performance skills and that Brogan had an
impressive record of success in producing printed public health
publications. The evaluators found that Brogan had *presented an
impressive plan and novel ideas for sales, service, distribution,
graphics, Internet use, and Web site design.* Agency Report, Vol. 2, Tab
4, Source Selection Decision (June 10, 2002), at 4.
With respect to OCR's proposal, the evaluators' found that OCR, as the
incumbent, had specific experience in meeting the agency's needs and that
its *staff has strong qualifications to conduct the work.* Agency Report,
Vol. 2, Tab 4, Source Selection Decision (June 10, 2002), at 3.
Nevertheless, the evaluators noted concerns with OCR's proposal under each
of the technical evaluation factors. For example, under the technical
experience, qualifications and past performance, the evaluators were
concerned that OCR had not demonstrated satisfactory technical experience
and qualifications at the *corporate level* of its organization.
Contracting Officer Statement at 3. The evaluators noted that OCR's
proposed project director had no prior experience in managing the
production of technical journals.[3] The evaluators also noted OCR's
failure to timely pay its primary printing subcontractor, which caused
delays in the issuance and delivery of journals. This was a concern that
persisted throughout the final year of OCR's contract performance.
Contracting Officer's Statement at 3-4.
Under the technical approach and methodology factor, the evaluators
expressed concern that OCR had not committed to performing the required
publication schedule, but only committed to performing [DELETED]
*[DELETED].* Also, the evaluators noted that OCR's plans for production
of a Chinese edition of the journals (*one of the products of major
interest to the government*) was vague and that although OCR indicated
that it would [DELETED], little detail was provided to show how this
[DELETED] would work. Contracting Officer's Statement at 4-5.
Under the marketing factor, which requested that the offeror demonstrate
its ability to market information nationally and internationally to
produce income, OCR provided only minimal explanation of its marketing
approach and instead indicated that [DELETED]. The failure to understand
the importance of a detailed marketing plan demonstrated to the evaluators
that OCR did not fully understand the marketing objective of the contract,
which was a concern under the understanding stated objectives factor.
Contracting Officer's Statement at 5.
Under the fiscal solvency factor, the evaluators found that OCR had not
demonstrated that the firm had adequate resources to satisfactorily
perform the contract. In this regard, the agency noted that OCR had not
indicated any financial commitment for a line of credit or other lending
commitment. Although OCR indicated in its proposal that it would
[DELETED], the evaluators noted that OCR had similarly promised to
maintain [DELETED] under the prior contract and that this was never fully
executed. Contracting Officer's Statement at 6.
The evaluation results were provided to the contracting officer, who
determined that Brogan's proposal reflected the best value to the
government based on technical and price considerations. Agency Report,
Vol. 2, Tab 4, Source Selection Determination (June 10, 2002) at 6. The
contracting officer concluded that Brogan's superior technical score,
based upon the evaluators' conclusion that Brogan had demonstrated strong
experience, corporate infrastructure, and financial strength, outweighed
OCR's 4 percent price advantage. Also, the contracting officer noted that
accepting Brogan's proposal offered other financial benefits to the
government. Specifically, the contracting officer stated that:
only Brogan & Partner[s] agreed with the suggested incentive fee
arrangement without revision. OCR Services indicated their concurrence;
however, it was based on [DELETED]. An incentive fee structure based on
this arrangement would offer greater profit to the contractor and less
benefit to the Government. Brogan & Partners main business is a fiscally
strong marketing firm that has a successful track record in marketing a
diverse line of products including publications. It is the Government's
opinion that based on their proposal, Brogan & Partners can be very
successful in reducing the cost of the contract to the Government by
increasing the number of subscribers and increasing the number of display
advertisements in the EHP publications and presents overall best buy to
the Government.
Id.
Award was made to Brogan, and this protest followed a written
debriefing.[4]
OCR broadly challenges every aspect of the agency's evaluation of its
technical proposal but specifically objects to the evaluation of its
*fiscal solvency.* In addition, OCR complains that both it and Brogan
offered to provide the same on-site staff but that Brogan's proposal
received a higher overall technical score than OCR's proposal. OCR also
complains that Brogan's higher technical score is the result of the agency
double counting Brogan's evaluated strengths by taking them into account
under more than one evaluation factor.
In reviewing protests of allegedly improper evaluations and source
selection decisions, our Office examines the record to determine whether
the agency's judgment was reasonable and in accord with the stated
evaluation criteria and procurement statutes and regulations. Abt
Assocs., Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD P: 223 at 3-4. A
protester's mere disagreement with an agency's judgment does not render it
unreasonable. Brunswick Def., B-255764, Mar. 30, 1994, 94-1 CPD P: 225 at
9. Here, we find no basis from our review of the record to conclude that
the agency's judgment was unreasonable.
It is true that both OCR and Brogan proposed the same on-site staff to
perform the contract. The agency recognized this in its evaluation,
citing the strong qualifications of the proposed staff as an evaluated
strength for each firm. See Agency Report, Vol. 2, Tab 7, Initial
Proposal Evaluation (May 9, 2002), at 2, 5. OCR's low technical score
reflected the evaluators' concerns with numerous other aspects of OCR's
proposal. For example, the evaluators noted OCR's past [DELETED].
We therefore find unsupported OCR's allegation that the two firms'
proposing the same on-site staff meant that it was unreasonable for the
agency to assign them different ratings.
OCR argues that the agency's evaluation of its fiscal solvency was
unreasonable, asserting that, although its proposal was downgraded under
this factor for failing to demonstrate the adequacy of its financial
resources, this concern could have been addressed by making [DELETED] a
*condition of the award.* Protest at 7. It is an offeror's
responsibility, however, to provide an adequately written proposal for the
agency to evaluate. Robotic Sys. Tech., B-278195.2, Jan. 7, 1998, 98-1
CPD P: 20 at 9. Moreover, OCR does not rebut the agency's statement that
OCR had promised under the prior contract to provide [DELETED] and failed
to fulfill this promise. We find no basis to question the agency's
evaluation of OCR's proposal under the fiscal solvency factor.
OCR argues, however, that Brogan's proposal should have been similarly
downgraded under the fiscal solvency factor. Specifically, OCR complains
that a Dunn & Bradstreet (D&B) report on Brogan's *credit worthiness*
would have shown that *Brogan does not pay its bills on time,* and that
this should have affected the agency's evaluation of Brogan's proposal
under the fiscal solvency factor. Comments at 2-3. The agency responds
that the evaluation panel did not have access to or review Brogan's D&B
report. Contracting Officer's Statement at 6.
It is unclear from the record what impact, if any, the D&B report should
have had on the agency's evaluation of Brogan's proposal under the
financial solvency factor. Although it is true that Brogan's D&B report
states that Brogan's credit rating was reduced due to *slowness in meeting
trade obligations,* we cannot say that this report alone should have
significantly affected the agency's evaluation of Brogan's proposal under
this factor. Moreover, assuming, arguendo, that Brogan's proposal should
have received the same evaluation score that OCR's proposal received under
this factor (that is, 2 of 10 available points), this would have resulted
in a reduction of only 8 points in Brogan's technical evaluation score.
Given Brogan's many other assessed strengths and OCR's evaluated
weaknesses, we have no basis to conclude that the evaluators' failure to
consider Brogan's D&B report, even if it is assume to be improper, had any
measurable impact on the agency's evaluation or source selection decision.
OCR also complains that the agency double counted Brogan's evaluated
strengths by crediting them under more than one evaluation factor, in
effect, inflating Brogan's overall technical evaluation score.
Specifically, OCR objects that the agency's initial evaluation report
mentions Brogan's marketing experience as a strength under both the
technical approach/methodology and marketing factors. See Agency Report,
Vol. 2, Tab 7, Initial Proposal Technical Evaluation (May 9, 2002), at
3-4. In OCR's view, Brogan's marketing experience should only have been
referenced under the marketing technical factor. Although it is true that
the initial proposal evaluation record references Brogan's marketing
skills under the technical approach/methodology factor, the record does
not demonstrate that this reference reflected double counting. Rather, it
appears that this *shorthand* comment was meant to credit Brogan for its
detailed description in its proposal of its approach and methodology for
increasing advertising sales. In any event, the source selection decision
accurately reflects Brogan's evaluated strengths without inflation.
In sum, we find that OCR has not shown the agency's evaluation, or source
selection based upon that evaluation, to be unreasonable. Accordingly,
the protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] *The contract mechanism provided for a revenue enhancement cost offset
feature which allows the Government to share in the profit generated by
this contract in order to offset the contract's cost to the Government.*
RFP S: B.
[2] Brogan was OCR's marketing consultant on the prior contract, under
which Brogan developed marketing materials, and was proposed as OCR's
subcontractor under this RFP.
[3] OCR initially challenged the agency's evaluation of its project
director, noting that he had been performing this position under the prior
contract since 1999, but did not substantively address this issue in its
comments. The proposed project director's resume does not specifically
indicate journal production experience but rather shows substantial
experience in the information technology field.
[4] Based upon the agency's determination that contract performance would
be in the best interest of the government, the agency did not stay
performance of Brogan's contract. Although OCR objects to the agency's
determination to allow performance, we do not review the adequacy of an
agency's determination to override the statutory stay and proceed with
performance of a contract. Warvel Prods., Inc., B-281051.5, July 7, 1999,
99-2 CPD P: 13 at 14-15.