TITLE:  Warden Associates, Inc., B-291238, December 9, 2002
BNUMBER:  B-291238
DATE:  December 9, 2002
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Warden Associates, Inc., B-291238, December 9, 2002

   Decision
    
    
Matter of:    Warden Associates, Inc.
    
File:             B-291238
    
Date:              December 9, 2002
    
Harlan Wax for the protester.
Seth Binstock, Esq., Social Security Administration, for the agency.
Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Agency was not required to conduct discussions with protester regarding
evaluated weaknesses in its quotation where the quotation was effectively
eliminated from consideration as unacceptable and, in any case, agency did
not conduct discussions with other vendors.
DECISION
    
Warden Associates, Inc. protests the award of a blanket purchase agreement
(BPA) and task order to Management Analysis, Inc. (MAI) under request for
quotations (RFQ) No. SSA-RFQ-02-0202, issued by the Social Security
Administration (SSA) for competitive sourcing support services.  Warden
primarily challenges the agency's failure to conduct discussions with
Warden. 
    
We deny the protest. 
    
The RFQ sought quotes from vendors on the General Services Administration
Federal Supply Schedule (FSS) for consulting services to provide Office of
Management and Budget (OMB) Circular A-76 advisory and support services to
the agency's competitive sourcing team and to SSA's individual offices. 
The successful vendor was to provide all necessary personnel, facilities,
equipment, materials, supplies and services to accomplish the functions,
tasks, and activities required under the BPA.  Vendors were to submit
separate quotations for the BPA and the first task order, which were to be
evaluated on the basis of four factors, listed in descending order of
importance:  technical and management approach to BPA and first task
order; past performance; staff qualifications; and price.  Technical
factors were considered of paramount consideration and award was to be
based on the *best value* to the government.  Three vendors, including
Warden and MAI, submitted quotes by the initial closing time.  While the
agency evaluated MAI's and the third vendor's quotes as technically
acceptable, they found Warden's quote unacceptable due to major
weaknesses. 
    
The agency subsequently twice amended the RFQ to add more tasks, increase
the performance period of the BPA and the level of effort under the task
orders, and modify the evaluation factors.  The amended RFQ contemplated
the award of a BPA for a period of 36 months, with a cumulative effort on
task orders of approximately 60,200 hours.  Because of the significant
changes to the RFQ, the agency determined to solicit Warden to submit a
revised quote, even though its quote had been found unacceptable.  All
three vendors submitted revised quotes and the agency conducted a new
evaluation.  Again, the evaluators found MAI's and the third vendor's
quotes technically acceptable, but found Warden's to contain so many
weaknesses that it could not be accepted for award.  Based on MAI's lower
overall prices, the agency determined that its quote represented the best
value; it thus awarded MAI the BPA and first task order.  After receiving
notice of the agency's action, Warden filed this protest. 
    
Warden raises a number of issues regarding the evaluation and the agency's
failure to engage in meaningful discussions with it.  In reviewing a
protest against a procuring agency's evaluation, our role is limited to
ensuring that the evaluation was reasonable and consistent with the terms
of the solicitation and applicable statutes and regulations.  National
Toxicology Labs., Inc., B‑281074.2, Jan. 11, 1999, 99-1 CPD P: 5 at
3.  We have reviewed all of Warden's arguments and find that none has
merit.  We address Warden's most central arguments below. 
    
Warden asserts that its quote was included in the competitive range--as
evidenced by its receipt of the two RFQ amendments--and that it therefore
was entitled to meaningful discussions before submitting its revised
quote.  Federal Acquisition Regulation (FAR) S: 15.306(c).[1] 
Warden's assertions are without merit and are based on a misunderstanding
of the circumstances of this procurement.  Contrary to Warden's expressed
understanding, its quote was not included in a *competitive range* either
before or after the amendments were issued.  Rather, as discussed above,
both its initial and revised quotes were evaluated as unacceptable. 
Agency Report (AR), exh. 12, at 3, 5.  Where a quote is eliminated from
the competition as unacceptable, the vendor is not entitled to
discussions.  See Drytech, Inc., B‑246276.2, Apr. 28, 1992,
92‑1 CPD P: 398 at 7‑8.[2]  The agency provided the amendments
to Warden despite the unacceptability of its original quote only after
determining that the amendments made significant revisions to the RFQ; the
agency concluded that Warden should be given the opportunity to respond to
the agency's actual requirements.[3]  Providing this opportunity did not
reverse the prior evaluation and place Warden's unacceptable proposal in a
competitive range for discussion purposes; rather, it merely returned the
procurement to the quotation submission/evaluation stage.  Accordingly,
Warden was not entitled to discussions based on the agency's actions. [4]
    
In any case, the RFQ specifically provided that the agency intended to
award the BPA and task order without conducting discussions (RFQ P: XV),
and this is what the agency did.  Although the record shows that the
agency did communicate with MAI and the other vendor regarding their
original and revised quotes, the agency characterizes these questions as
clarifications and not discussions.  In this regard, clarifications (FAR
S: 15.306(a)) are limited exchanges between the government and an offeror
and are not to be used to cure proposal deficiencies or material
omissions, materially alter the technical or cost elements of the
proposal, or otherwise revise the proposal to make it acceptable.  eMind,
B-289902, May 8, 2002, 2002 CPD P: 82 at 5.  On the other hand,
discussions or *negotiations* (FAR S: 15.306(d)) are *exchanges . . .
between the Government and offerors, that are undertaken with the intent
of allowing the offeror to revise its proposal.*  MG Indus., B-283010.3,
Jan. 24, 2000, 2000 CPD P: 17 at 9.  Because both vendors' quotes were
evaluated as excellent to outstanding, there is no basis to infer that the
exchanges were anything more than clarifications.  The only time the
vendors were permitted to submit significantly revised quotations was in
response to the amended RFQ, the same opportunity provided Warden. 
    
As for the evaluation of Warden's revised quote, the agency identified
numerous weaknesses.  For example, the evaluators found that its technical
and management approach for the BPA was not well-organized; its quote for
the first task order failed to address the full range of RFQ tasks and
appeared to propose too many hours for the principal labor category; its
past performance record indicated that much of its experience covered only
part of the competitive sourcing process or was gained as a subcontractor
for a larger company; and its key personnel, while qualified, did not
appear sufficient in number to accomplish the multiple concurrent task
orders envisioned by the BPA.  AR, exh. 8, at 4-5.  Based on these and
other weaknesses, the evaluators concluded that the *combination of a
proposal that did not adequately address the requirements in the BPA or
the task order statement of work and the potential for inadequate staffing
make this proposal unacceptable.*  Id. at 5.  Warden has not rebutted the
agency's findings or otherwise shown that the agency's conclusions were
unreasonable.  Accordingly, we have no basis to question the
reasonableness of the agency's evaluation of the protester's quote as
technically unacceptable.  
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    

   ------------------------

   [1] As a preliminary matter, Warden relies on various provisions of FAR
part 15 that govern contracting by negotiation.  The agency asserts that,
since this procurement concerns an FSS purchase, it was governed by FAR
subpart 8.4, not part 15.  See Computer Prods., Inc., B-284702, May 24,
2000, 2000 CPD P: 95 at 4.  Where, as here, an agency uses vendors'
responses as the basis for a detailed technical evaluation and
price/technical tradeoff, we will review the agency's actions under the
standards applicable to negotiated procurements--even though the
procurement may not be directly governed by FAR part 15--to ensure that
the evaluation was reasonable and consistent with the terms of the
solicitation.  Digital Sys. Group, Inc., B‑286931, B 286931.2, Mar.
7, 2001, 2001 CPD P: 50 at 6; COMARK Fed. Sys., B‑278343,
B‑278343.2, Jan. 20, 1998, 98‑1 CPD P: 34 at 4-5.
[2] We note that, just as Warden did not challenge the validity of the
identified weaknesses themselves, it does not explain how discussions
would have allowed it to prepare an acceptable quote.
[3] Warden asserts that the agency should have issued its revisions as a
new solicitation and provided it with a debriefing on its unacceptable
initial quote.  If Warden believed that the revisions were so significant
that a separate solicitation was required, it should have protested such
an impropriety prior to closing time for revised quotes.  Bid Protest
Regulations, 4 C.F.R. S: 21.2(a)(1) (2002).  Any protest on this basis now
is untimely. 
[4] Warden seems to assert that, because the amendments revised the
requirements, it was entitled to discussions before submitting its revised
quote in any event.  However, the issuance of amendments does not obligate
an agency to conduct discussions.