TITLE: Sam Facility Management, Inc., B-292165, July 11, 2003
BNUMBER: B-292165
DATE: July 11, 2003
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Sam Facility Management, Inc., B-292165, July 11, 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: Sam Facility Management, Inc.
File: B-292165
Date: July 11, 2003
Charles E. Saunders, Esq., for the protester.
Damon A. Martin, Esq., and Javier E. Gonzalez, Esq., Department of the
Navy, 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
Protester*s proposal was reasonably excluded from the competitive range
where the proposal failed to include information requested by the
solicitation, was reasonably evaluated as deficient in certain areas, and
was relatively high in price.
DECISION
Sam Facility Management, Inc. protests the exclusion of its proposal from
the competitive range, and subsequent award of a contract to Excell
Management Corporation, under request for proposals (RFP) No.
N62477-03-R-0509, issued by the Department of the Navy, for grounds
maintenance services at the Naval Academy Complex, Annapolis, Maryland.
Sam contends that the agency*s evaluation of its and Excell*s proposals,
and the determination to exclude its proposal from the competitive range,
were unreasonable.
We deny the protest.
The RFP, issued October 25, 2002 as a section 8(a) set-aside, sought
proposals for grounds maintenance services, including mowing, plant
maintenance, weeding and fertilization, flower bed planting and
maintenance, policing of grounds and leaf removal, street sweeping, snow
and ice removal, irrigation, and maintenance of
athletic fields.[1] The RFP provided for the award of a fixed‑price
contract including indefinite-quantity work for a base period of 1 year
with four 1-year options. Award was to be made to the offeror whose
proposal was determined to represent the *best value* to the government.
The solicitation set forth three evaluation factors:
technical/management, past performance, and price. The
technical/management factor was comprised of the following equally
weighted subfactors: relevant experience; project staffing; corporate
management support; and support for small business, women-owned business
and small disadvantaged business program. The technical/management and
past performance factors were of *equal importance to each other, and
considered together, [were] of equal importance to Price.* RFP S: M.3.
The RFP included detailed instructions regarding the preparation of
proposals. The solicitation stated, for example, as follows:
Each technical proposal shall be precise, detailed, and complete as to
clearly and fully demonstrate a thorough knowledge and understanding of
the requirements. As a minimum, the proposal must contain sufficient
detail so that it may be evaluated in accordance with the EVALUATION
FACTORS provision, Section M.
RFP S: L, FAC 5252.215-9300, Content of Proposals.
Eight offerors, including Sam and Excell, submitted proposals by the
November 29, 2002 closing date. The offerors* technical and cost
proposals were forwarded to the cognizant technical evaluation board (TEB)
and cost evaluation panel (CEP).[2] Sam*s proposal was evaluated as
*unacceptable* under the technical/management factor, *neutral* under the
past performance factor, and *unacceptable* overall, at a total evaluated
price of $14,448,733 (the second highest received). Sam*s proposal was
rated *unacceptable* under each of the four subfactors comprising the
technical/management factor, with the exception of the support for small
business subfactor, under which Sam*s proposal was rated *acceptable.*
Agency Report (AR), Tab 5, TEB Report, at 3, 13-14; CEB Report, at 1.
Excell*s proposal was evaluated as *marginal* under the
technical/management factor, and *good* under the past performance factor,
at a total evaluated price of $10,133,663 (the second lowest received).
Excell*s proposal was rated as *acceptable* under the relevant experience
subfactor of the technical/management factor, *marginal* under the project
staffing subfactor, *excellent* under the corporate management support
subfactor, and *acceptable* under the support for small business
subfactor. AR, Tab 5, TEB Report, at 3, 7-9; CEB Report, at 1.
The agency included Excell*s proposal, as well as the proposal submitted
by another offeror (that was evaluated as *marginal* overall under the
technical/management factor, *neutral* under the past performance factor,
at a total evaluated price of $12,183,045), in the competitive range.
Discussions were held with the two competitive range offerors, and final
proposal revisions were requested and received. Excell*s final revised
proposal, which was selected for award, was evaluated as *exceptional*
overall under the technical/management factor, and *good* under the past
performance factor, at a total price of $9,344,017. AR, Tab 7,
Post-Negotiation BCM, at 2.
Sam contends that the agency*s evaluation of its proposal was unreasonable
under each of the evaluation factors, and that but for the agency*s
unreasonable evaluation, its proposal would have been included in the
competitive range.
In reviewing an agency*s decision to exclude a proposal from the
competitive range, we look first to the agency*s evaluation of proposals
to determine whether the evaluation had a reasonable basis. Although in
reviewing an agency*s evaluation we will not independently determine the
merits of a proposal, we will examine the record to ensure that the
evaluation was reasonable and consistent with the evaluation criteria.
The judgments involved in the evaluation of proposals are subjective by
their nature; nonetheless, the judgments must be reasonable and must bear
a rational relationship to the announced criteria upon which competing
offers are selected. Essex Electro Eng*rs, Inc., B-284149; B-284149.2,
Feb. 28, 2000, 2000 CPD P: 72 at 6.
An offeror must submit an initial proposal that is adequately written and
that affirmatively states its merits, or run the risk of having the
proposal rejected as technically unacceptable. Agencies may exclude
proposals with significant informational deficiencies from further
consideration whether the deficiencies are attributable to omitted or
merely inadequate information addressing fundamental factors. Generally,
offers that are technically unacceptable as submitted and would require
major revisions are not required to be included in the competitive range
for discussion purposes. Id.
Sam first challenges the price evaluation. In its protest, Sam
*challenges the Navy*s criticism of Sam*s price calculations,* that is,
that Sam improperly *rounded down* certain of the quantities set forth in
the RFP, asserting that its pricing was correct. Protester*s Comments at
3. Regardless of the merits of this dispute, it is apparent that it has
relatively little effect on Sam*s price and does not affect the
competitive range determination. The only other point raised in Sam*s
protest concerning the price evaluation was that Sam*s proposed price of
$14,448,733 was closer to the Navy*s independent government estimate (IGE)
of $15,227,107, than Excell*s initial proposed price of $10,133,663. That
is, except to compare Excell*s total price to the IGE, Sam*s counsel,
despite having access to Excell*s proposal and all of the evaluation
documentation including the CEB report and the agency*s price realism
analysis, does not otherwise comment on the reasonableness of Excell*s
price or take issue with any aspect of the CEB report or other agency
findings with regard to the offerors* proposed prices. As such, the
protester*s statements, in our view, only serve to reinforce the agency*s
determination that Sam*s proposal (which was approximately 43 percent and
19 percent higher in price than, respectively, Excell*s and the other
competitive range offeror*s proposals) was not competitive vis-`a-vis
either of the competitive range offerors with regard to price.
Sam also protests the evaluation of the relevant experience subfactor of
the technical/management factor. With regard to this subfactor, the RFP
requested that offerors include in their proposals information regarding
five *recurring or fully completed grounds maintenance, and maintenance of
athletic fields, projects . . . completed within the past five (5) years
or, if the projects are current service contracts, which are at least 50%
complete.* The solicitation added, among other things, that an evaluation
*[p]reference will be given to those experienced in grounds projects of
similar size, staffing requirements, scope, function, complexity and
contract duration.* The RFP also requested here that offerors *explain
[their] financial capability by providing current credit rating, lines of
credit, sources of funds and proposed means for financing any resulting
contract, including bank references as applicable.* RFP S: M.3.
In evaluating Sam*s proposal under this subfactor, the agency found that
the *[p]rojects submitted were not of the size and scope of this
solicitation.* For example, the agency noted that the six projects listed
by Sam that fell within the time parameters set forth in the solicitation
each had an annual value as reported by Sam that ranged from $25,000 to
$200,000. Additionally, the agency found that two of the projects were
for snow and ice removal only. The agency also commented here that Sam*s
proposal did not evidence *athletic field maintenance experience,* and
that Sam*s proposal failed to provide any *financial figures or
references* as requested by the RFP. AR, Tab 5, TEB Report, at 13.
Sam complains that the agency failed to consider one project listed that,
according to Sam, had an annual value of approximately $900,000. The
protester adds that although its relevant experience does not include the
maintenance of athletic fields as specified in the solicitation, it has
maintained *a golf course which requires a much higher standard and
quality of maintenance than any other type of athletic field.*
Protester*s Comments at 6.
While it appears that Sam may be correct that the agency failed to
consider the project listed by Sam with an annual value of approximately
$900,000, we cannot find, based upon this record, that this omission had
any material impact on the agency*s evaluation. The fact remains that
neither this nor the other projects listed by Sam had annual values
anywhere near Sam*s proposed price of approximately $2.9 million per
year. Additionally, and as noted by the agency, two of the projects
listed by Sam involved only snow and ice removal, as opposed to the
comprehensive grounds maintenance services to be performed under this
RFP. Moreover, although Sam clearly disagrees, we cannot find
unreasonable the agency*s view that Sam*s experience in maintaining a golf
course does not equate to experience maintaining numerous different
athletic fields such as those at the Naval Academy Complex (which include
baseball, softball, lacrosse, volley ball, and track fields). Finally,
Sam*s proposal simply failed to include the requested information
regarding its financial capability. Accordingly, we find reasonable the
agency*s evaluation of Sam*s proposal under the relevant experience
subfactor as *unacceptable.*
The protester also challenges the agency*s evaluation of Excell*s proposal
under the relevant experience subfactor. Specifically, Sam points out
that three of the contracts detailed by Excell in its proposal were
awarded in October 2001, and had a base period of 1 year with three or
four 1-year option periods, depending on the contract. Protester*s
Comments at 6; AR, Tab 4, Excell*s Proposal, Relevant Experience. The
protester argues that the agency improperly considered these three
contracts in evaluating Excell*s proposal because, in the protester*s
view, the contracts are not either fully completed or 50 percent complete
as required by the RFP. We disagree with the protester*s interpretation
of the terms of the solicitation. In our view, because each of these
contracts had a base period of 1 year and the base contract period had
been completed by the time of Excell*s submission of its proposal, the
contracts were appropriate for consideration by the agency.
Sam protests the evaluation of its proposal under the project staffing
subfactor. With regard to this subfactor, the solicitation requested that
offerors *demonstrate the ability to sustain the loss of key personnel
without a loss, temporary of otherwise, of services to the Government.*
The RFP also informed offerors that they were to *describe and explain
[their] proposed staffing* by full time equivalent numbers, position
titles, relative skill levels, types (e.g., tractor operators) to
accomplish the work. Additionally, proposals were to *describe and
explain [their] proposed staff* for the indefinite quantity work set forth
in the solicitation, and *[i]ndicate where these people are on the
organization chart.* RFP S: M.3
The agency found, in evaluating Sam*s proposal under this subfactor, that
it did not address loss of key personnel as required, but rather addressed
loss of labor positions. The agency also found that Sam*s proposed
staffing failed to address the *sports field crew, fixed price tree work,
and street sweeping,* and failed to include on its organization chart the
personnel proposed for performance of the indefinite-quantity work. The
agency noted that Sam*s proposed staffing of [DELETED] full-time
equivalents (FTE) including key personnel, and [DELETED] **working* FTEs
to perform the services,* was unacceptable. AR, Tab 5, TEB Report, at 13.
Sam argues that, contrary to the agency*s determinations, its proposal did
in fact address the loss of key personnel as requested. Protester*s
Comments at 7; see AR, Tab 3, Sam*s Proposal, at 13. The protester also
contends that the agency*s evaluation of its proposal under the project
staffing subfactor evidences unequal treatment vis-`a-vis Excell*s
proposal, given that Excell*s initial proposed was rated as *marginal*
under the project staffing subfactor, even though Excell proposed only
21.52 FTEs. Protester*s Comments at 7; see AR, Tab 5, TEB Report, at 8,
13.
With regard to this subfactor, we note that the protester does not
challenge or otherwise assert that the agency erred with regard to the
other aspects of Sam*s proposal for which it was downgraded.
Additionally, based on our review, we agree with the agency that Sam*s
proposal, while addressing the loss of labor positions during the
performance of the contract, provided no explanation as to how Sam would
*sustain the loss of key personnel without a loss, temporary of otherwise,
of services to the Government,* as required by the solicitation. RFP S:
M.3. As to Sam*s claim of unequal treatment with regard to the staffing
levels proposed by it and Excell, the record reflects that agency also
found Excell*s initial proposed staffing to be low (as was Sam*s), and
that Excell*s initial proposal*s slightly higher rating of *marginal* is
attributable to the TEB*s finding of significantly more deficiencies with
Sam*s proposal under the project staffing subfactor, as discussed above.
Thus, we find the agency*s evaluation under this subfactor to be
reasonable.
Sam also challenges its proposal*s rating of unacceptable under the
corporate support subfactor. Here, the RFP required that proposals
include an *on-site organizational chart* that, among other things,
*clearly show[s] organizational relationships, lines of authority and
responsibility, and span of control.* The RFP added that the chart was
also to identify by position and title *[f]irst-line supervisors of each
organizational component.* Proposals were also to include an explanation
as to why the offeror felt that it had sufficient experience to perform
the contract, as well as *Occupational Safety and Health Act (OSHA)
incidents rates for the last five years.* RFP S: M.3.
The agency found in evaluating Sam*s proposal that its on-site
organizational chart failed to address *lines of authority and
responsibility,* as well as first-line supervisors, as required.
Additionally, the agency found deficient Sam*s explanation as to why it
felt it had the experience to perform the contract, and noted that the
proposal failed to include Sam*s OSHA incident rates. AR, Tab 5, TEB
Report, at 13.
Again, based upon our review of the record, we cannot find the agency*s
evaluation of Sam*s proposal as *unacceptable* under the corporate
management support evaluation subfactor to be unreasonable. In this
regard, the protester does not dispute the agency*s determination that its
proposal failed to include OSHA incident rates, or that Sam*s explanation
as to whether it has adequate experience to perform the contract was
deficient. Rather, Sam only asserts that, contrary to the agency*s
evaluation, the on-site organizational chart it included in its proposal
*details the lines of authority, responsibility, and first line
supervisor.* Protester*s Comments at 7. However, based on our review, we
agree with the agency that Sam*s proposed *lines of authority and
responsibility* and *first line supervisors* were, at best, unclear from
its chart.[3]
Sam protests the agency*s evaluation of its proposal under the past
performance factor as *neutral.* Here, according to the contemporaneous
evaluation record, *[n]o past experience evaluations were submitted on
behalf of [Sam],* AR, Tab 5, TEB Report, at 14, and the protester simply
contends it has *confirmed that all its questionnaires were submitted and
that all of them, including Bethesda, showed a rating of excellent.*
Protester*s Comments at 4. Given that the record does not support the
protester*s assertion and that the protester has not provided any
evidence, or even any explanation, as to how it allegedly *confirmed* that
the agency did in fact receive *all [of Sam*s] questionnaires,* we decline
to consider this wholly unsupported argument further.
Sam also challenges the *good* rating assigned Excell*s past performance,
citing an incident of allegedly poor performance by Excell on a Navy
contract. Excell received references ranging from *good* to *excellent*
on relevant contracts. It is unclear from the record whether the Excell
contract that Sam refers to was considered by the Navy during its
evaluation of Excell*s past performance, since the contract number
provided by Sam does not match any of the contracts referenced by Excell
in its proposal. To the extent that it concerns one of the contracts used
as a past performance reference, Sam has not shown why the agency
evaluators here had reason to question the validity of the past
performance references they received regarding Excell*s past performance.
In this regard, we have held that where the agency has no reason to
question the validity of the past performance information it may rely on
the information furnished without verifying it.[4] Lynwood Mach. & Eng*g,
Inc., B‑285696, Sep. 18, 2000, 2000 CPD P: 113 at 7; SDA Inc.,
B-256206; B‑256075, May 2, 1994, 94-2 CPD P: 71 at 7 n.9.
Finally, Sam argues that one of the TEP members, who also serves as the
contracting activity*s small business specialist, is biased against the
firm. In this regard, the son of Sam*s president submitted an affidavit
in which he states that he overheard this individual state that he *almost
caused her to lose her job* and *was going to make sure* that the firm
never got another contract. Protester*s Affidavit P: 4. In response, the
agency small business specialist submitted an affidavit in which she
states that she *never stated* she would see to it that the firm never got
another contract and *never made any statement* that could be reasonably
construed as the protester is alleging. Agency Small Business
Specialist*s Affidavit P:P: 2, 3, 4.
Our review of the record leads us to conclude that we need not resolve
this dispute because, even if the protester is correct, we do not find any
possible prejudice to the protester. As is the case in all protests,
where the record does not demonstrate that, but for the agency*s actions,
the protester would have a reasonable chance of receiving award, we will
not sustain a protest, even if a deficiency in the procurement is found.
McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD P: 54 at 3; see
Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996).
Here, as noted above, the materials that formed the basis of this decision
were provided to Sam*s counsel, under a protective order issued by our
Office, and Sam was given every opportunity to point out inaccuracies or
errors in those materials. Although Sam disagrees with many of the
agency*s conclusions, it has not shown that the statements upon which the
conclusions were based were inaccurate or false, or that the conclusions
themselves were unreasonable. Because we generally presume that
contracting officials act in good faith, Indian Affiliates, Inc.,
B-243420, Aug. 1, 1991, 91-2 CPD P: 109 at 5, and since Sam has been given
every reasonable opportunity to demonstrate that it was harmed by unfair
or improper bias--and has failed to make any such showing--we have no
basis to conclude that the protester was not treated fairly by the Navy in
this procurement. IGIT, Inc., B-275299.2, June 23, 1997, 97-2 CPD P: 7 at
9-10.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] Section 8(a) of the Small Business Act, 15 U.S.C. S: 637(a) (2000),
authorizes the Small Business Administration (SBA) to enter into contracts
with government agencies and to arrange for performance through
subcontracts with socially and conomically disadvantaged small business
concerns. These subcontracts may be awarded on a competitive or
noncompetitive basis. Federal Acquisition Regulation S: 19.800. A
partnership agreement between the SBA and the Department of Defense
permits, as planned here, a direct award by the contracting agency to the
selected section 8(a) concern. Defense Federal Acquisition Regulation
Supplement S: 252.219‑7009.
[2] The TEB evaluated technical/management proposals using the following
adjectival ratings: exceptional, acceptable, marginal, and unacceptable.
In addition, proposals were evaluated under the past performance factor as
excellent/low performance risk, good/moderate performance risk, poor/very
high performance risk, and neutral/neutral performance risk.
[3] The protester also objects to the evaluation of its and Excell*s
proposals as *acceptable* under the support for small business, women
owned business and small disadvantaged business program subfactor. The
protester contends here that while both firms are small disadvantaged
businesses, only it is also women-owned, and argues that because of this
its proposal should have been rated higher than Excell*s under this
subfactor. Protester*s Comments at 5. We need not consider the merits of
the agency*s evaluation here. In our view, any slight upward adjustment
to Sam*s rating under this subfactor that may be warranted because it is a
women-owned SDB would not require the inclusion of Sam*s proposal in the
competitive range, given its relatively high price and *unacceptable*
ratings under the remaining technical/management evaluation subfactors.
[4] To the extent that the Excell contract to which Sam refers was not
considered by the agency here, our Office has recognized in certain
limited circumstances that an agency evaluating an offeror*s past
performance has an obligation (as opposed to discretion) to consider
*outside information* bearing on the offeror*s past performance.
International Bus. Sys., Inc., B-275554, Mar. 3, 1997, 97-1 CPD P: 114
at 5. Where we have charged an agency with responsibility for considering
such outside information, the record demonstrated that the information in
question was *simply too close at hand to require offerors to shoulder the
inequities that spring from an agency*s failure to obtain, and consider,
the information.* Id., TRW, Inc., B‑282162, B-282162, June 9, 1999,
99-2 CPD P: 12 at 4-5. However, the *close at hand* information in these
cases generally concerned contracts for the same services with the same
procuring activity, or at least information personally known to the
evaluators. TRW, Inc., supra; see Morrison Knudsen Corp., B-280261, Sept.
9, 1998, 98-2 CPD P: 63 at 5-6. Here, the protester has not shown, and
the record does not evidence, that the contract on which Excell allegedly
had an instance of poor performance was for the same services with the
same procuring activity, or involved information personally known to the
evaluators. The protester*s assertion that the evaluators or contracting
officer should have been aware of this contract because it involved the
Navy does not establish that the information was so *close at hand* that
it should have been obtained or was improperly ignored.