TITLE:  T Square Logistics Services Corporation, B-291851, April 15, 2003
BNUMBER:  B-291851
DATE:  April 15, 2003
**********************************************************************
T Square Logistics Services Corporation, B-291851, April 15, 2003

   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:   T Square Logistics Services Corporation
    
File:            B-291851
    
Date:              April 15, 2003
    
Richard B. Oliver, Esq., and Bradley G. Bjelke, Esq., McKenna Long &
Aldridge, for the protester.
Nancy M. Camardo, Esq., and Joseph A. Camardo, Jr., Esq., for Sankaty
Capital Aviation Services, the intervenor.
Capt. Timothy J. Ryan, and Capt. Peter G. Hartman, Department of the Army,
for the agency.
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Agency*s evaluation of the awardee*s oral presentation under two
subfactors to the technical approach evaluation factor as *blue/excellent
in all respects* was unreasonable where the awardee did not address the
subfactors during its oral presentation.
DECISION
    
T Square Logistics Services Corporation protests the award of a contract
to Sankaty Capital Aviation Services under request for proposals (RFP) No.
DAHA20-02-R-0010, issued by the Air National Guard (ANG), for fuel
distribution services at Selfridge ANG Base, Michigan.  T Square argues
that the agency failed to conduct meaningful discussions with it, and that
the agency*s evaluation of its and Sankaty*s proposals, including oral
presentations, and the selection of Sankaty*s higher-priced proposal for
award, were unreasonable.
    

   We sustain the protest.

   The RFP provided for the award of a fixed-price contract for a base period
of 8 months with four 1-year options.  The successful contractor will *be
responsible for the requisitioning, issuing, delivery, accounting and
overall management of fuels distribution in direct support of base tenants
and transient aircraft at Selfridge [ANG Base].*  RFP, Statement of Work
(SOW), at 1.  To accomplish this, the contractor will provide all
supervision, personnel, materials, supplies, and equipment (with the
exception of certain equipment that will be provided by the government). 
    
The RFP stated that award would be made to the offeror whose proposal
represented the best value to the government, based upon the evaluation of
technical approach, past performance, and price.  The RFP provided that
*[t]echnical approach is somewhat more important than past performance,*
and that technical approach and past performance *are significantly more
important than price.*  RFP at 22.  The solicitation added that the
technical approach factor was comprised of the following five equally
weighted subfactors:  conformance to the SOW, management approach and
administrative plan, quality control, phase-in plan, and safety plan. 
Offerors were also informed that the past performance factor was comprised
of the following seven equally weighted subfactors:  customer
satisfaction, quality of service, timeliness of performance, management
effectiveness, cost control, safety, and compliance with small business
requirements. 
    
The solicitation*s proposal preparation instructions requested that
proposals consist of three parts, with part one providing, among other
things, proposed prices; part two providing current and past performance
information; and part three addressing technical approach.  The RFP
specified that the technical approach part of the written proposal was to
include only the following:  resumes and letters of intent of key
personnel (the contract manager and alternate contract manager);
organization charts; and on-site staffing plans by shift.  The
solicitation stated that each offeror would be required to *orally present
the technical portion of the proposal.*  The RFP provided that oral
presentations were to address each of the technical approach evaluation
subfactors set forth in the solicitation, and could not exceed 90 minutes
in length.  Oral presentation slides were required to be submitted to the
agency with the technical portion of the written proposals, and the
solicitation informed offerors that the use of *[a]dditional handouts will
not be permitted.*  The solicitation cautioned offerors that *[s]lides
submitted but not briefed or portions of the presentation not completed
within the time limit will not be considered for evaluation.*  RFP at 21. 
    
The agency received proposals from three offerors, including T Square (the
incumbent contractor) and Sankaty, by the closing date.  Oral
presentations were conducted, and immediately following the oral
presentations, clarification questions were posed to, and answered by, the
offerors.  Agency Report (AR) at 5; Tabs 24D and 29D, Clarification
Questions.  T Square*s proposal/oral presentation was rated under the
technical approach factor as *green* overall and its past performance was
rated *low risk,* at a price of $1,717,054.88.  Sankaty*s proposal/oral
presentation was rated under the technical approach factor as *blue*
overall and its past performance was rated *very low risk,* at a price of
$2,189,217.84.[1]  AR, Tab 14, Source Selection Evaluation Board (SSEB)
Report, Oct. 22, 2002, attach.
    
The agency included the proposals of all three offerors in the competitive
range, conducted discussions, and requested and received final revised
proposals (FRP).  T Square*s FRP was rated under the technical approach
and past performance factors as, respectively, *green/orange* overall with
*moderate risk,* at a price of $1,939,523.75.  Sankaty*s FRP was rated
under the technical approach and past performance factors as,
respectively, *blue* overall with *very low risk,* at a price of
$2,174,696.84.  AR, Tab 16, SSEB Report, Dec. 21, 2002, attach.
    
In her *best value* analysis, the source selection authority (SSA) noted
that T Square*s proposal, *although acceptable and lowest price, is
considered to be somewhat of a risk, and . . . identified no significant
advantages.*  The SSA also stated that *[t]hough [T Square] hold[s] the
existing contract and ha[s] performed overall in a satisfactory manner,
they have had various problems and were often slow to resolve them.*  The
SSA noted in this regard that *an extraordinary amount* of government
involvement in the administration of T Square*s incumbent contract had
been *required due to the effect the problems were having at all . . .
levels.*  AR, Tab 18, Source Selection Decision, at 6. 
    
In considering Sankaty*s proposal, the SSA noted that although it was
*10.8% higher* in price than T Square*s proposal, it *received a blue (or
excellent) rating and integrated numerous advantages and contained no
disadvantages.*  The SSA referred here to the evaluated strengths in
Sankaty*s technical approach, and found that Sankaty*s *heavy attention to
quality personnel,* as well as Sankaty*s *extraordinary experience and
knowledge base,* should save the agency *time and effort* in administering
the contract.  The SSA concluded that in light of the evaluated advantages
in Sankaty*s proposal, it represented the best value to the agency. 
Id. at 7.  This protest followed.[2]
The protester argues that the agency*s evaluation of Sankaty*s
proposal/oral presentation as *blue* under the phase-in plan and safety
plan evaluation subfactors, and *blue* overall under the technical
approach factor, lacked a reasonable basis.  The protester points out here
that Sankaty failed to separately address the phase-in plan and safety
plan subfactors during its oral presentation as required, and that the
agency was precluded from considering Sankaty*s phase-in plan and safety
plan oral presentation slides in its evaluation given the solicitation
provision (at 21) that *[s]lides submitted but not briefed or portions of
the presentation not completed within the time limit will not be
considered for evaluation.* 
    
In reviewing an agency*s evaluation of proposals, we will not reevaluate
the proposals, but instead, will examine the agency*s evaluation to ensure
that it was reasonable and consistent with the solicitation*s stated
evaluation factors and applicable statutes and regulations.  Servizi
Aeroportuali, Srl, B-290863, Oct. 15, 2002, 2002 CPD P: 208 at 11.
    
The RFP requested that each offeror *[d]iscuss in detail your phase-in
plan required in accordance with the (SOW).*  The solicitation advised
offerors here that their *[d]iscussion should address as a minimum;
staffing, management, orientation, equipment and addressing Quality
Control procedures that will be utilized during Phase-In.*  RFP at 22. 
The SOW stated with regard to the phase-in plan:
    
[T]he services provided by this contract are vital to the government*s
overall effort, [and the] continuity thereof must be maintained at a
consistently high level without interruption.  To ensure a smooth
transition in the change of work effort, the contractor shall develop a
Plan.  The contractor*s Plan shall describe in detail the transition
between outgoing and incoming contractors and how responsibility for
services changes over without interruption.
RFP SOW S: 4.18.
    
Sankaty*s oral presentation was organized in a manner consistent with the
terms of the RFP, that is, it consisted of five sections, each addressing
one of the equally-weighted technical approach subfactors set forth in the
solicitation.  AR, Tab 24C, Sankaty*s Technical Presentation, app. E, Oral
Presentation Slides.  The record, which includes a videotape of Sankaty*s
oral presentation as well as Sankaty*s oral presentation slides, reflects
that Sankaty intended to address the subfactors comprising the technical
approach factor in an order similar to the order in which they appeared in
the solicitation, with the phase-in plan and safety plan evaluation
subfactors being the last two addressed.[3]  The videotape recording of
Sankaty*s oral presentation shows that approximately 15 seconds into
Sankaty*s presentation of its safety plan (and prior to its presentation
of its phase-in plan), the 90 minutes allotted for the oral presentation
elapsed, and the agency, in accordance with the solicitation instructions,
stopped Sankaty*s oral presentation at that time. 
    
The agency explains that it did not consider Sankaty*s safety and phase-in
plan presentation slides in evaluating Sankaty*s oral presentation. 
Rather, the agency asserts that the evaluators *relied on their
handwritten notes taken during the presentation to arrive at their
individual and ultimate consensus decision of *Blue* ratings in both of
these subfactors.*  Agency Supplemental Report at 6.  The agency argues
here that, in its view, *Sankaty*s oral presentation illustrates a
comprehensive and desirable phase-in plan with details regarding those
requirements and additional details on transition, continuity, drug
testing, training, and obtaining commercial drivers licenses.*  The agency
also asserts that there were other aspects of Sankaty*s oral presentation
that justified a *blue* rating under the phase-in plan subfactor,
including *an aggressive drug-testing program, a 90-day probationary
period, a strong training program, aggressive screening and recruiting
programs and their assurance of smooth transition.*  Contracting Officer*s
Supplemental Statement at 1. 
    
Based upon our review of the record, we agree with the agency that
Sankaty, while addressing the management approach and administrative plan
subfactor, also addressed the staffing and management aspects of its
phase-in plan, including its plan to evaluate, hire, drug test and train
personnel (including the incumbent workforce).  However, the record does
not support the agency*s assertion that Sankaty, during its oral
presentation, addressed the orientation or equipment aspects of its
phase-in plan, or the quality control procedures that will be utilized
during phase-in, as was required by the RFP.
    
It is also unclear how the evaluators were able to rely on their
*handwritten notes* in determining that Sankaty*s proposal warranted a
rating of *blue/excellent* under the phase-in plan subfactor.  In this
regard, one evaluator*s worksheet has no notes under the phase-in plan
subfactor, and another evaluator*s worksheet has a question mark next to
the space for phase-in plan comments and notes only that Sankaty proposed
a *30 day phase in.*  A third evaluator*s worksheet provides a comment of
only *no interruption.*  AR, Tab 8A, Evaluation Worksheets.
    
The remaining evaluator*s worksheet includes the most detailed notes
regarding that evaluator*s view of Sankaty*s phase-in plan.  Specifically,
this evaluator, consistent with our view that Sankaty*s oral presentation
did address some aspects of its approach related to phase-in during its
discussion of staffing under the management approach and administrative
plan subfactor, comments (in rating Sankaty as *green* under the phase-in
subfactor) to *refer back to staffing--did state a strong gear up plan.* 
The only other comment on this evaluator*s worksheet regarding this
subfactor notes that Sankaty stated during its oral presentation that it
*would provide a truck.*  Id. 
    
With regard to the safety plan subfactor, the RFP requested that each
offeror in its oral presentation *[d]iscuss in detail your proposed safety
plan as required by the SOW.*  The solicitation added here that *[i]n
addition to the Safety plan overview, as a minimum, discuss the following
elements:  Hazard and mishap notification procedures; Mishap
investigation; Mishap prevention procedures.*  RFP at 22.  The SOW
specified that the safety plan *shall include safety prevention procedures
and will identify the contractors* methods of identifying and reporting
all safety hazards and mishaps involving Government facilities and
equipment,* and provided relatively detailed requirements regarding mishap
reporting and investigation.  SOW S:S: 4.17.1, 4.17.1.1.
    
The agency makes a similar argument regarding its evaluation of Sankaty*s
oral presentation as *blue/excellent* under the safety plan evaluation
factor.  That is, while again conceding that Sankaty*s 90-minute oral
presentation time elapsed prior to its reaching the safety plan section of
its oral presentation, the agency nevertheless argues that Sankaty
*address[ed] all of the required safety factors* while presenting its
approach to the conformance to the SOW, management approach and
administrative plan, and quality control subfactors.  Contracting
Officer*s Supplemental Statement at 2.
    
Although we agree with the agency that Sankaty in its oral presentation,
while discussing other subfactors, addressed certain elements relating to
safety, the record does not support the agency*s assertion that Sankaty
presented its safety plan, or its approach to mishap investigation, as was
required by the RFP.[4]  In this regard, we, like the protester, are
unable to find any mention of mishap investigation in Sankaty*s oral
presentation; nor is mishap investigation referenced in any manner on any
of the evaluators* worksheets.  See Agency Report, Tab 8A, Evaluator
Worksheets.
    
In sum, we cannot find reasonable the agency*s evaluation of Sankaty*s
proposal/oral presentation as *blue/excellent in all respects* under the
phase-in plan and safety plan evaluation subfactors, and thus
*blue/excellent in all respects* overall, where the record demonstrates
that Sankaty did not specifically address either of these subfactors
during its oral presentation, and did not adequately address the
requirements of these subfactors while presenting its response to the
conformance to the SOW, management approach and administrative plan, or
quality control subfactors.[5]  Given that Sankaty*s higher-priced
proposal was selected as the best value to the agency in part because of
its higher overall technical rating of *blue/excellent in all respects,*
the agency*s selection lacks a reasonable basis.  We sustain T Square*s
protest on these bases.
    
We recommend that the agency reopen discussions with all offerors whose
proposals are in the competitive range,[6] and request and evaluate
revised FRPs.[7]  If an offeror other than Sankaty is selected for award,
the agency should terminate the contract previously awarded to that firm. 
We also recommend that the agency reimburse the protester for the cost of
filing and pursuing this protest, including reasonable attorney*s fees.  4
C.F.R. S: 21.8(d).  The protester should submit its certified claim for
costs, detailing the time expended and costs incurred, directly to the
contracting agency within 60 days of receipt of this decision.  4 C.F.R.
S: 21.8(f)(1). 
    
The protest is sustained.
    
Anthony H. Gamboa
General Counsel
    
    

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

   [1] The possible ratings for the technical approach factor and subfactors
were blue--excellent in all respects; green--meets requirements but does
not offer any significant advantages; orange--meets some but not all
requirements and offers disadvantages that outweigh other advantages;
yellow--meets some but not all requirements with errors, omissions, or
deficiencies that may be correctable without a major rewrite; and
red--unacceptable with major errors that cannot be corrected without a
major rewrite.  RFP at 27.  With regard to past performance, proposals
were evaluated as very low risk, low risk, moderate risk, high risk, very
high risk, or unknown risk.  RFP at 24-25.
[2] The agency informed T Square of the award on Friday, January 3, 2003,
and T Square requested a debriefing on Wednesday, January 8.  The agency
declined the protester*s request for a debriefing because it was not filed
within 3 days after T Square was notified of the award.  See Federal
Acquisition Regulation (FAR) S: 15.506(a).  On January 10, T Square filed
this protest with our Office.  The agency argues that T Square*s protest
should be dismissed for *failing to state legally and factually sufficient
ground for protest,* as required by our Bid Protest Regulations.  See 4
C.F.R. S: 21.1(c)(4) (2003).  The agency does not argue that T Square*s
initial protest is overly general, but rather appears to argue that
because T Square did not obtain a required debriefing, it should not be
permitted to pursue a protest challenging the agency*s evaluation and
source selection, and obtain information through the bid protest process
that it could have obtained through a debriefing.  We disagree.  The
agency seeks to make the receipt of a required debriefing a prerequisite
to filing and pursuing a protest.  There is no such requirement.  Trifax
Corp., B-279561, June 29, 1998, 98-2 CPD P: 24 at 5.  T Square*s initial
protest, even without receiving any debriefing, was legally sufficient and
its supplemental protest grounds were timely filed based on information
contained in the agency report.  We therefore decline to dismiss T
Square*s protest.
[3] The solicitation listed the phase-in and safety plans subfactors as,
respectively, the fourth and fifth subfactors, while Sankaty*s oral
presentation slides reflect that Sankaty intended to address the safety
plan subfactor fourth (four slides) and the phase-in plan subfactor fifth
(six slides).  See RFP at 25; AR, Tab 24C, Sankaty*s Technical
Presentation, app. E, Oral Presentation Slides.
    
[4] While Sankaty*s oral presentation did not specifically mention mishap
prevention procedures, it did discuss its *proactive* approach to safety.
[5] We also note that these two subfactors were not part of the
post-oral-presentation clarifications with Sankaty nor were they mentioned
in the formal discussions with that firm.
[6] Had the agency properly evaluated Sankaty*s proposal/oral
presentation, the apparent weaknesses and deficiencies in Sankaty*s
proposal/oral presentation with regard to its phase-in and safety plans
(that it did not present) should have been raised with Sankaty during
discussions.  However, as noted, these matters were not the subject of
discussions.  Because the discussions recommended here are for the purpose
of allowing Sankaty to supplement its proposal, discussions should not be
restricted and T Square should be given an opportunity to revise its
proposal.
[7] In view of this recommendation, we need not address T Square*s protest
that the agency*s evaluation of proposals under the past performance and
technical approach factors was unreasonable.  Nor need we address T
Square*s argument that the agency should have raised during discussions
with T Square certain adverse information regarding T Square*s performance
of the current contract, to which T Square asserts it has not had an
opportunity to respond.  However, given the lack of clarity in the record
regarding this latter issue, and our recommendation, we believe it would
be prudent for the agency to raise with T Square during discussions the
adverse past performance information regarding T Square*s performance of
the current contract.