TITLE:  Garner Multimedia, Inc., B-291651, February 11, 2003
BNUMBER:  B-291651
DATE:  February 11, 2003
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Garner Multimedia, Inc., B-291651, February 11, 2003

   Decision
    
    
Matter of:    Garner Multimedia, Inc.
    
File:             B-291651
    
Date:              February 11, 2003
    
J. Patrick McMahon, Esq., and William T. Welch, Esq., Barton, Baker,
McMahon & Tolle, for the protester.
Capt. Joseph V. Fratarcangeli, Department of the Army, for the agency.
Katherine I. Riback, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
On a competition among Federal Supply Schedule vendors, where technical
proposals are requested and award was to be to the vendor submitting
lowest priced technically acceptable quotation, agency lacked reasonable
basis to reject lowest priced quotation as technically unacceptable where
the solicitation contained no information about what information was
expected in the technical proposal and the proposal addressed, and did not
simply repeat, the statement of work tasks incorporated into the
solicitation.
DECISION
    
Garner Multimedia, Inc. protests the issuance of a delivery order to
MountainTop Technologies, Inc. under request for quotations (RFQ) No.
DASW01-02-F-1516, issued by the Department of the Army for the *Salute Our
Services* pilot program.  Garner contends that the Army improperly
determined that its quotation was technically unacceptable.
    
We sustain the protest.
    
This procurement is to acquire a technology-based program that provides
Internet-based programs and support services to U.S. Army active and
reserve components and their dependents.  The *Salute Our Services* pilot
program covered by this procurement includes four main task areas:  (1)
the development and implementation of an interactive *.com website,* (2)
the development of a mentoring program, (3) the development of an outreach
partnership program with private sector corporations and businesses, and
(4) the development and implementation of appropriate training to
facilitate the use of the website by families and loved ones.  The 6-page
statement of work (SOW) for the program contains the program background,
states the objectives and the various project tasks of each of the main
task areas, and requires a detailed action work plan to be submitted to
the agency within 10 working days of the order.
    
The agency sent the RFQ for this program to vendors holding General
Services Administration (GSA) Federal Supply Schedule (FSS) contracts for
web-site design and maintenance services.  The RFQ contemplated the award
of a fixed-price purchase order for 1 year with a 1-year option.  The RFQ
requested vendors *to prepare and submit a price and technical proposal in
accordance with the [SOW],* and stated:
    
The Government will award a single award resulting from this [RFQ] to the
responsible offeror whose technical proposal meets the minimum needs of
the Government at the lowest overall price to the Government. 
The RFQ did not include any guidance concerning the contents of the
technical proposal or list any evaluation criteria. 
    
The agency received two quotations, from Garner and MountainTop, in
response to the solicitation.  Garner's quotation was priced at
$2,200,048.05, and MountainTop's at $2,307,600.  Both vendors submitted
technical proposals that responded to the SOW requirements.  Regarding
Garner's and MountainTop's technical proposals, the agency's evaluator
stated the following:
    
It appears to me that Garner . . . simply restated the tasks in the SOW
with no corroborating data or description of what is involved in
performing the tasks.  There is no reference to the type of technology
they will use, i.e. servers, database software.  I do not find that they
are technically capable to perform this contract.
MountainTop . . . explained in detail how they would accomplish the tasks,
even providing diagrams of the technological aspect of the servers.
Agency Report, Tab 9, Source Selection Technical Evaluation, at 1. 
Determining that Garner's quotation was technically unacceptable, the
agency made award to MountainTop.  After filing an agency-level protest,
which was denied, Garner filed the present protest in our Office.
    
Garner protests the rejection of its quotation as technically
unacceptable, arguing that it was never advised what information the
agency was expecting to be included in its quotation.  Garner contends
that its quotation was technically acceptable, inasmuch as its 36-page
technical proposal did not simply recite the SOW requirements, but
addressed each SOW item, providing details of how it would accomplish each
task so as to demonstrate that it had the personnel, management skills and
corporate experience necessary to perform the required tasks. 
    
Where an agency treats the selection of vendors for an FSS order as a
competition in a negotiated procurement, and a protest is filed
challenging the outcome of the competition, we will review the agency's
actions to ensure that the evaluation was fair, reasonable and consistent
with the terms of the solicitation.  See COMARK Fed. Sys., B-278343,
B‑278343.2, Jan. 20, 1998, 98-1 CPD P: 34 at 4-5.  To satisfy its
obligation to treat vendors fairly, the agency should in some fashion
inform vendors of its essential requirements, so that a fair and
intelligent competition can be achieved.  Draeger Safety, Inc., B-285366,
B-285366.2, Aug. 23, 2000, 2000 CPD P: 139 at 4; Haworth, Inc.; Knoll N.
Am., Inc., B-256702.2, B-256702.3, Sept. 9, 1994, 94-2 CPD P: 98 at 5-6;
see Federal Acquisition Regulation S: 1.102‑2(c)(3). 
    
Here, while the RFQ required submission of a technical proposal, and
stated that award would be made to the vendor submitting the low-priced
technically acceptable proposal, it did not provide any details of what
the agency expected the technical proposal to address, so that a fair and
intelligent competition could be achieved.  Instead the RFQ stated only
that the technical proposal was to be *in accordance with the [SOW].* 
Where, as here, an agency completely fails to provide guidance as to the
desired content of technical proposals or the basis for evaluating them,
we believe that any doubt as to the acceptability of a vendor's technical
proposal should be resolved in favor of the vendor.[1]  See COMARK Fed.
Sys., supra, at 5-6; cf. SKJ & Assoc., Inc., B-291533, Jan. 13, 2003, 2003
CPD P: __ at 5 (same presumption where agency fails to provide such
guidance in solicitation issued under simplified acquisition procedures). 
    
Here, the agency determined that Garner *restated the SOW tasks with no
corroborating data or description of the what is involved in accomplishing
the tasks.*  Agency Report, Tab 9, Source Selection Technical Evaluation,
at 13.  If it were true that the Garner proposal merely restated the SOW
tasks, then the agency might have had a reasonable basis to reject
Garner's quotation, because by requesting a technical proposal it was
apparent that the agency was seeking more than a copy of the SOW. 
However, Garner's 36-page technical proposal was clearly more than a
repetition of the 6-page SOW.  Its technical proposal addressed each of
the SOW tasks, including elements of how these tasks would be
accomplished, and referenced its skills and experience with regard to the
tasks, and included an executive summary, an introduction, a technical
approach discussion, a management plan, a quality assurance plan, resumes
of key personnel and a discussion of Garner's corporate capability.  For
example, Garner's proposal stated that it had extensive experience
developing secure websites *using custom validation procedures,* citing
some specific projects, and in connection with the present project,
Garner's proposal stated that its proposed website would be password
protected and would require registration, items not mentioned in the SOW. 
Agency Report, Tab 6, Garner's Quotation, Technical Proposal, at 4. 
    
Given the complete absence of instruction from the agency concerning what
information should be included in the requested technical proposals, we
find that the agency lacked a reasonable basis to find Garner's quotation
technically unacceptable.  Garner's quotation took no exception to the RFQ
requirements, and addressed the four main task areas in the RFQ.  If the
agency desired the information in a certain format or required certain
information to demonstrate technical acceptability, such as listing the
types of technology that will be used, it should have indicated this in
the RFQ, or requested this information during the discussions that it
could have conducted with the vendors.  In this regard, Garner states that
had it been requested to provide these specifics, it easily could have
done so.  We conclude that the agency lacked a reasonable basis for
finding Garner's technical proposal unacceptable, and that the protester
was prejudiced by the agency's actions in this regard.
    
We recommend that the agency amend the RFQ to state the desired content of
the technical proposals, and the criteria to be applied in evaluating them
and selecting the winner.  The agency should obtain revised quotations and
if, upon reviewing quotations in response to the amended RFQ, the agency
selects a vendor other than MountainTop, we recommend that the agency
cancel that firm's delivery order and award to the selected company.  We
also recommend that the protester be reimbursed the reasonable costs of
filing and pursuing the protest, including attorneys' fees.  4 C.F.R. S:
21.8(d)(1).  The protester should submit its certified claim for such
costs, detailing the time expended and the costs incurred, directly to the
contracting agency within 60 days after the receipt of this decision.
    
The protest is sustained.
    
Anthony H. Gamboa
General Counsel       
    

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   [1] The agency argues that the protest is essentially an untimely
challenge against the solicitation and should be dismissed as untimely,
pursuant to 4 C.F.R. S: 21.2(a)(1) (2002).  We disagree.  We believe that
the basis of protest only became apparent when Garner's quotation was
rejected as technically unacceptable and the protester learned that the
agency's needs were other than what was stated in the RFQ.  Since Garner
protested to the agency within 10 days of its receipt of the notice of
award to MountainTop, the agency-level protest, and the subsequent protest
to our Office, are timely.  4 C.F.R. S: 21.2(a)(3).