TITLE: D.N. American, Inc., B-292557, September 25, 2003
BNUMBER: B-292557
DATE: September 25, 2003
**********************************************************************
D.N. American, Inc., B-292557, September 25, 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: D.N. American, Inc.
File: B-292557
Date: September 25, 2003
Kenneth A. Martin, Esq., Martin & Associates, PLLC, for the protester.
Richard J. Webber, Esq., Arent Fox Kintner Plotkin & Kahn, PLLC, for
Daston Corporation, an intervenor.
Debra R. Tabor, Esq., Department of the Army, for the agency.
Sharon L. Larkin, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Agency*s use of color coded scoring methodology was unobjectionable,
where color scheme was consistent with, and directly correlated to, the
solicitation*s stated evaluation criteria; scoring methodology, unlike
evaluation factors, need not be disclosed.
2. In a best value procurement, agency reasonably selected higher
technically rated and lower priced proposal for award, where evaluation is
consistent with the solicitation*s stated evaluation criteria and agency*s
conclusions are reasonably based.
3. Protest that agency failed to conduct adequate discussions is denied,
where record shows that agency reasonably discussed with protester areas
of significant concern.
DECISION
D.N. American, Inc. protests the award of a contract to Daston Corporation
under request for proposals (RFP) No. DACW69-03-R-0022, issued by the
Department of the Army for computer help desk services. D.N. challenges
the reasonableness of the Army*s evaluation and rating methodology.
We deny the protest.
The RFP, issued as a small business set-aside, sought *multi-tiered* help
desk services for the Great Lakes and Ohio River Division of the
Huntington District of the U.S. Army Corps of Engineers.[1] The help desk
is to be the single point of contact for all software and hardware
problems and service requests of the District employees. The required
help desk services include an off‑site Answer Call Service (ACS) for
answering, logging, and solving calls related to commercial off-the-shelf
and Corps‑owned software; on-site support covering hardware,
software, and network support; field dispatch on-site support; services
requiring a *Subject Matter Expert;* and administrative services. The
selected contractor is to provide *all of the personnel, equipment, tools,
materials, supervision and other items necessary* to perform these
services. RFP at 7‑9.
The RFP provided for award of a blanket purchase agreement for a base year
with nine 1-year options under the selected contractor*s General Services
Administration Federal Supply Schedule. Award was to be made to the
offeror whose proposal was evaluated to be the *most advantageous to the
Government,* considering, in descending order of importance, past
performance, help desk model, contractor expertise, and price. Combined
technical factors were *significantly more important than* price.[2]
However, the RFP provided that as technical merit became more equal, price
would become more important in the selection and could be the *deciding
factor* for award. RFP amend. 1, at 10, 17.
With regard to past performance, the RFP required offerors to identify a
minimum of three company projects that *are similar in scope* to this
effort. RFP amend. 1, at 17. The RFP further stated that contractors
*shall have existing services that support a similar size and scope
specified in this contract and demonstrate the ability to accommodate this
additional workload without significant expansion of their existing
help[]desk service infrastructure.* RFP at 7. Under the help desk model
evaluation factor, offerors were to describe each component of the help
desk model they were proposing, *addressing at a minimum, service levels,
. . . answer call, on-site support, field dispatch, continuous
improvement, tracing software, [k]nowledge base software, and reports.*
RFP amend. 1, at 17. For contractor expertise, offerors were to identify
for evaluation the *[c]ontractor qualifications/expertise [that] are
listed in paragraph 15 [of the RFP]*[3] and any additional expertise.
Id. Pricing was to be provided on a fixed‑price *per seat* basis
for the base year and the first 4 option years; the RFP specified that
offerors* pricing for the options years would be considered along with the
base year to determine the lowest priced offer. RFP at 2, 7; amend. 1, at
17.
D.N. and Daston were among eight offerors that submitted proposals in
response to the RFP. The Army evaluated each proposal and rated it green
(superior), blue (exceptional), purple (acceptable), yellow (marginal), or
red (unacceptable) under each of the technical evaluation factors.[4]
Each color rating was defined in a manner that was tailored to the
evaluation criteria. For example, blue and purple were defined under the
past performance factor as follows:
EXCEPTIONAL (BLUE): The technical proposal clearly demonstrates the
offeror*s experience on projects with similar work. A minimum of three
current company projects that are similar in scope including points of
contact, titles, and phone numbers are provided. All references for past
performance are at least very high (exceptional). There is a high
probability of successful performance on this contract.
ACCEPTABLE (PURPLE): The technical proposal established and outlines the
experience of the offeror with similar work. Three current company
projects that are similar in scope including points of contact, titles,
and phone numbers are provided. All performance ratings are at least
satisfactory (acceptable). There are no significant doubts that the
offeror would be successful with this contract.
AR, Tab E, Technical Proposal Evaluation Worksheet, at 2.
For the help desk model factor, blue and purple were defined as follows:
EXCEPTIONAL (BLUE): The offeror provides a detailed description of each
component of the Help Desk Model they are proposing, addressing in detail
more than the minimum, service levels, authorized warranty repair provider
status, answer call, on-site support, field dispatch, continuous
improvement, tracking software, [k]nowledge base software, and reports.
The information provided substantiates that there is a high probability of
successful performance on this contract.
ACCEPTABLE (PURPLE): The offeror provides a detailed description of each
component of the Help Desk Model they are proposing, addressing at a
minimum, service levels, authorized warranty repair provider status,
answer call, on-site support, field dispatch, continuous improvement,
tracking software, [k]nowledge base software, and reports. There are no
significant doubts that the offeror could perform satisfactorily on this
contract.
Id. at 4.
For the contractor expertise factor, blue and purple were defined as
follows:
EXCEPTIONAL (BLUE): The proposal provides a complete list of contract
qualifications, including all expertise required. There is a high
probability of successful performance on this contract.
ACCEPTABLE (PURPLE): The proposal provides most of the qualifications
required. There are no significant doubts that the offeror could
satisfactorily perform on this contract.
Id. at 8. This color coded scheme was not disclosed to the offerors.
The Army initially rated Daston*s proposal blue for past performance and
purple for the help desk model and contractor expertise, and rated D.N.*s
proposal purple for all three factors. The Army then issued written
discussion questions to both Daston and D.N. (as well as other offerors)
and sought and evaluated final proposal revisions (FPR). After evaluating
offerors* responses to discussion questions and FPRs, the Army rated
Daston*s final proposal blue and D.N.*s final proposal purple for all
three technical factors. Based upon these ratings, Daston*s proposal was
ranked the second highest technically, and D.N.*s proposal was ranked
fifth.
Specifically under the past performance evaluation factor, the Army stated
that Daston received a blue rating because it *had contracts of similar
size and scope and has demonstrated some of their proposed model in past
performance . . . [and had] multiple Government contracts for help desk
support . . . .* D.N. was rated purple under this evaluation factor
because, while it had *multiple military and Government contracts with
similar scope* and is *the incumbent help desk provider,* *the size
serviced [by the incumbent contract] is substantially lower than the
potential on this contract.* AR, Tab J, Memorandum for Record, June 19,
2003, at 5-6.
Under the help desk model evaluation factor, the Army explained that
Daston was rated blue because its *ACS and knowledge base implementations
are integrated and their model is consistent with the [statement of
work],* the number of ACS personnel *appears to be adequate due to their
ability to call on their personnel worldwide,* and Daston*s *[k]knowledge
base has [commercial off-the-shelf software] pre-loaded and will collect
site specific data and will be accessible to all endusers.* D.N. was
rated purple because *they had a well defined ACS process and call
ownership is clearly defined* and the *entire team uses AIRTIME system.*
Id. at 6-7.
Under the contractor expertise factor, the Army explained that Daston was
rated blue because it was *providing employees who are familiar with
current Corps business practices and knowledge of software.* The Army
noted that all of the proposed employees did not have all desired
certifications, but found that a training plan addressed this concern.
The Army also noted that Daston*s staffing plan provided a *more than
adequate number of personnel.* D.N. was rated purple because, as the Army
found, D.N.*s *ACS personnel have a training plan and good
qualifications,* but *some existing team members needed to get some
certifications.* Id. at 7.
The Army also evaluated price and determined that Daston*s proposal was
the lowest priced over the first 5 years of the contract.[5] The Army
then determined that Daston*s proposal was *most advantageous* because of
its *high technical capability and lower cost over the five year period.*
Id. at 9-10.
In comparing proposals, the Army specifically noted Daston*s *excellent
past performance* of the *same size and scope* as the solicited effort.
The Army also found that Daston*s proposal *clearly addressed how best
practices would be shared and leveraged throughout the company.* In
contrast, the Army noted that D.N. had *never performed services of this
size before* and that it would be a *major ramping up* for D.N. to support
this effort. Additionally, the Army found that Daston*s staffing plan
included an adequate number of on-site personnel, whereas D.N.*s proposed
staffing for the Huntington site appeared to be low. Daston*s team was
also found to be *already providing full seat management services to over
$1.6 [million] seats worldwide,* while in contrast, D.N. was not now
providing full seat management (although the Army also noted that D.N.
*gave an indicator that they could possible provide these services in the
future*). The Army also found advantageous Daston*s proposed help desk
model, noting that parts of Daston*s model had been demonstrated in its
past performance, while D.N.*s proposed model would have to be completely
developed and was new to the team. Specifically with regard to the ACS,
Daston was found to have personnel available worldwide and to have fully
discussed how level I and II calls would be answered, while it was unclear
to the Army whether D.N.*s ACS met the requirements of the statement of
work or where level II calls would be handled. Id. at 9.
Award was made to Daston and this protest followed.
D.N. challenges the Army*s rating methodology and technical evaluation of
proposals. Our Office reviews challenges to a technical evaluation to
ensure that the evaluation was conducted consistent with the RFP and
applicable procurement laws and regulations. Tri-J Contractors,
B-277063.3, July 6, 1998, 98-2 CPD P: 25 at 2. A protester*s disagreement
with the agency*s judgment is not sufficient to establish that the agency
acted unreasonably. Microcosm, Inc., B-277326 et al., Sept. 30, 1997,
97-2 CPD P: 133 at 4.
D.N. first complains that the Army*s *scoring methodology*--that is, the
color rating scheme--bears no rational relation to determining which
proposal was most advantageous to the government.[6] However, our review
of the record reveals that the rating definitions used by the Army
directly correlate to the stated evaluation criteria. For example, the
blue and purple ratings are defined for past performance to consider
experience with *similar work,* are defined for the help desk model to
consider evaluation elements such as *service levels . . . answer call,
on-site support, field dispatch . . .[etc.],* and are defined for
contractor experience to consider contractor qualifications; these
definitions reflect the same or similar language in the RFP. The
evaluation ratings also distinguish the relative merits of proposals in
that, for example, a blue (exceptional) rating is warranted for a *high
probability of successful performance,* and a purple (acceptable) rating
is warranted when there are *no significant doubts* as to successful
performance. AR, Tab E, Technical Proposal Evaluation Worksheet, at 2, 4,
8. Although D.N. objects to the subjective nature of the evaluation
scheme, we find the scheme not only consistent with the evaluation
criteria, but also consistent with the Federal Acquisition Regulation
(FAR) mandate in a negotiated procurement to qualitatively assess
proposals, see FAR S: 15.305(a), which implicitly requires some level of
subjectivity. See TESCO, B‑271756, June 24, 1996, 96-1 CPD P: 284
at 2 (*where technical proposals are sought and technical evaluation
criteria are used to enable the agency to make comparative judgments about
the relative merits of competing proposals, offerors are on notice that
qualitative distinctions will be made under the various evaluation
factors*).
D.N. next complains that the technical evaluation was arbitrary and
inconsistent, arguing primarily that Daston was improperly upgraded to
blue in the final evaluation, while D.N. was rated purple for essentially
the same features. We find no merit to these arguments. Under past
performance, for example, Daston reasonably was found to have contracts of
similar size and scope, while D.N.*s contracts were only of similar scope
and not size. Under the help desk model factor, even though the Army
favorably commented on both offerors* ACS processes, it noted that
Daston*s proposal provided additional advantages of offering pre-loaded
software and having adequate help desk personnel available worldwide. We
think these advantages reasonably support the Army*s determination to give
Daston higher technical ratings than D.N.
Further, although D.N. disagrees with the Army*s final rating
determinations, it has not shown them to be unreasonable. For example,
D.N. argues that the Army failed to consider the quality of Daston*s past
performance, that is, whether or not it had *at least very high* past
performance, as required by the blue rating definition. However, the
record shows that quality was indeed considered and Daston was found to
have *excellent* past performance. See, e.g., AR, Tab J, Memorandum for
Record, June 19, 2003, at 9; Tab K, Daston Initial Evaluation Worksheets,
at 10. D.N. also contends that Daston should not have received a blue
rating for the past performance factor because it did not provide a
*minimum of three* past performance references specifically concerning its
help desk model, parts of which were noted by the Army as being new to the
Daston team. However, the past performance factor required references
only for similar work (for which Daston provided more than three
references), and did not require references for the exact model proposed
under this effort; where features of the model appeared in past
performance, the agency reasonably recognized this as a strength.
Moreover, D.N. likewise did not have past performance concerning its help
desk model (since its model was being developed from scratch) and was not
downgraded for this, so we find no unequal treatment in this regard.
Finally, D.N. argues that it was deserving of a higher past performance
rating given its incumbent contract experience, but the Army considered
this experience and found that, although it was similar in scope, it was
far smaller in size than the required effort.[7] We find this conclusion
reasonable.
D.N. also complains that the evaluation of contractor expertise was
unequal. Here, D.N. argues that neither offeror had all of the required
certifications, which were necessary for a blue rating, and thus Daston
should only have received a purple rating like D.N.[8] Although we agree
with D.N. in this regard, we see no prejudice to D.N. from this error.
Daston was still rated superior to D.N. in the two more important
technical factors, and was lower in price, so even if the contractor
expertise ratings were made equal, there is no reasonable basis to
conclude that D.N.*s proposal would have had a reasonable probability of
being selected for award. See J.A. Jones/Bell, A Joint Venture, B-286458,
B-286458.2, Dec. 27, 2000, 2001 CPD P: 17 at 4 n.1.
D.N. next complains that weaknesses found in its proposal under the
technical factors reflect the Army*s use of unstated criteria. For
example, D.N. contends that offerors were not informed that the size of
prior contracts would be considered under past performance or that
*ramping up* would be a factor for award.[9] However, as noted above, the
RFP announced that offerors *shall have existing services that support a
similar size and scope specified in this contract and demonstrate the
ability to accommodate this additional workload without significant
expansion of their existing help[]desk service infrastructure.* RFP at
7. We think this language clearly placed offerors on notice that size of
past projects and the contractor*s staffing levels would be
considered.[10]
D.N. also contends that the Army failed to conduct meaningful discussions
concerning weaknesses found in its proposal. Although an agency is
required to discuss with each offeror considered for award *deficiencies*
and *significant weaknesses* in its proposal, FAR S: 15.306(d)(3), the
agency is not required to afford offerors all‑encompassing
discussions, or to discuss every aspect of a proposal that receives less
than the maximum score. MarLaw-Arco MFPD Mgmt., B-291875, Apr. 23, 2003,
2003 CPD P: 85 at 4.
Here, contrary to the protester*s allegations, the record shows that
discussions adequately addressed significant areas of concern. For
example, D.N. complains it was not informed that it would have to *ramp
up* to meet requirements, that its long term staffing plan was considered
low, that it had to acquire a loaner pool, or that it was not clear where
level II calls would be handled. However, D.N. was indeed asked whether
the D.N. team had the *ability to transition into new seat management
areas,* how its *on-site personnel will be able to handle overflow during
high call volumes,* and to explain the *different levels of support
available at the Help Desk,* which reasonably led D.N. into the areas of
staffing concern. Similarly, D.N. was asked to explain its training plan
for getting incumbent staff appropriately certified, which was another
weakness identified in D.N.*s proposal.[11] AR, Tab I, D.N. Discussion
Questions and Responses, at 1.
D.N. also contends that the Army failed to raise during discussions that
the size of past projects was a concern in the evaluation of past
performance, or that its subcontractor*s past performance under military
contracts was limited to hardware support. Although these issues were not
specifically raised during discussions, D.N. has not shown that it was
prejudiced. It does not argue that it would have, or could have,
identified contracts of a larger size, or that its subcontractor*s
references would have included other than contracts for hardware support
had these issues been raised, or that as a result of discussions its
proposal would have been found sufficiently superior to Daston*s lower
priced proposal to be selected for award. Continental Serv. Co.,
B‑271754, B‑271754.2, July 30, 1996, 96-2 CPD P: 65 at 6.
D.N.*s remaining protest allegations are primarily based on information
D.N. contends was provided at the debriefing, which allegations are not
supported by the record. For example, D.N. complains that its
subcontractor was criticized under the past performance factor for
referencing military as opposed to commercial experience. However, the
actual criticism was not that the firm lacked commercial experience, but
rather that the firm only referenced one military contract that was
limited to hardware support, rather than software and hardware support as
was required for this effort. AR, Tab L, D.N. Initial Evaluation
Worksheets, at 3.
In any event, we have reviewed each of D.N.*s arguments and find them to
be without merit. The Army, in our view, reasonably and fairly evaluated
proposals in accordance with the stated evaluation criteria and reasonably
selected Daston for award based upon its higher technical rating and lower
price.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] Each tier--gold, platinum, and silver--was based upon different
response and resolve times, and there were two priority levels for
handling calls under each tier. RFP amend. 1, at 19.
[2] The Army established the relative weights of the technical factors to
be 40 percent for past performance, 35 percent for the help desk model,
and 25 percent for contractor expertise. These weights were not disclosed
to the offerors.
[3] The referenced paragraph listed qualifications relating to education,
work experience, general business skills, and subject matter expertise.
RFP at 14.
[4] The past performance factor also had a neutral rating of
*purple/yellow.*
[5] Daston*s and D.N.*s proposed *gold tier* pricing, and the total
evaluated prices for their proposals, are as follows:
+------------------------------------------------------------------------+
| |Base Year |1st Option|2nd Option|3rd Option|4th Option|Total |
| | | | | | |Evaluated |
| | | | | | |Price (for|
| | | | | | |all |
| | | | | | |levels) |
|------+----------+----------+----------+----------+----------+----------|
|Daston|$ |$ |$ |$ |$ |$ |
| |[deleted] |[deleted] |[deleted] |[deleted] |[deleted] |9,387,000 |
|------+----------+----------+----------+----------+----------+----------|
|D.N. |$ |$ |$ |$ |$ |$ |
| |[deleted] |[deleted] |[deleted] |[deleted] |[deleted] |9,419,508 |
+------------------------------------------------------------------------+
Both offerors proposed base year prices that were below the government
estimate, which was $50. AR, Tab J, Memorandum of Record, June 19, 2003,
at 8, 10, 12.
[6] To the extent that D.N. contends that the *scoring methodology* was
not disclosed to offerors, we note that unlike evaluation factors for
award, an agency is not required to disclose its specific rating
methodology like the color coded scheme here. ABB Power Generation, Inc.,
B‑272681, B-272681.2, Oct. 25, 1996, 96-2 CPD
P: 183. To the extent that D.N. complains that the Army did not disclose
the relative weights of the evaluation factors--40 percent for past
performance, 35 percent for help desk model, and 25 percent for contractor
experience--we find that these percentages are not inconsistent with the
RFP, which listed the factors in *descending order of importance,* and
given, as discussed fully above, that D.N. reasonably received purple
ratings for each of the factors and Daston reasonably received blue, D.N.
has not shown how it was prejudiced as a result of the Army*s failure to
disclose the exact percentages applied.
[7] D.N. also argues that its proposal should not have been assessed a
weakness for *ramping up* because its subcontractor is currently servicing
*millions of clients,* but it is not clear whether this information was
presented to the agency during the evaluation and, in any event, the
services provided by the subcontractor, as identified in its past
performance, pertain only to hardware and not software support.
[8] D.N. also claims that it has familiarity with the Corps* business
practices, which was noted as a strength in Daston*s proposal under this
factor, but not in D.N.*s proposal.
[9] D.N. additionally argues that Daston also would have to *ramp up,*
since no contractor would have staff currently in place to perform future
efforts. However, the agency specifically noted that, unlike D.N., Daston
was currently servicing
$1.6 million seats worldwide, had personnel available worldwide to support
the effort, and included sufficient numbers of personnel in its staffing
plan. AR, Tab J, Memorandum for Record, June 19, 2003, at 9.
[10] In any event, D.N. has not explained how it was prejudiced, since it
does not contend it would have provided past performance of similar size
contracts or had staff currently in place to perform the effort without
expansion, had it been informed of these requirements.
[11] D.N. also complains that it was improperly criticized for its sharing
of best practices. This issue was admittedly raised during discussions,
but D.N.*s response does not appear to have alleviated the Army*s
concerns. See AR, Tab M, D.N. Final Evaluation Worksheets, at 3, 5, 10.
D.N. has not provided us any basis to find the Army*s conclusions
unreasonable in this regard.