TITLE: Transventures International, Inc., B-292788, November 4, 2003
BNUMBER: B-292788
DATE: November 4, 2003
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Transventures International, Inc., B-292788, November 4, 2003
Decision
Matter of: Transventures International, Inc.
File: B-292788
Date: November 4, 2003
D. John Won for the protester.
Sandra M. De Balzo, Esq., Drug Enforcement Administration, for the agency.
Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest challenging agency*s evaluation of protester*s proposal and
exclusion of proposal from competitive range is denied where agency*s
evaluation and competitive range determination were reasonable and in
accordance with the solicitation evaluation criteria.
DECISION
Transventures International, Inc. protests the exclusion of its proposal
from the competitive range under request for proposals (RFP)
DEA-02-R-0004, issued by the Drug Enforcement Administration (DEA) for
language-related services in support of the DEA, Miami Field Division.
Transventures contends that the DEA improperly evaluated its proposal.
We deny the protest.
The DEA explains by way of background that its mission of enforcing the
federal narcotics laws requires that the agency have the capability to
understand numerous foreign languages so that it can translate, monitor,
transcribe, and intercept conversations in connection with the unlawful
growing, manufacture, or distribution of controlled substances. See
Agency Memorandum of Law at 1. One way the DEA intercepts conversations
is through court-ordered nonconsensual telephonic monitoring, termed the
Title III program. See RFP S: C.2. To ensure its ability to meet these
needs, the agency issued the solicitation at issue here, seeking a
contractor *who shall be responsible for the delivery of all management,
supervision and manpower required to perform a variety of language related
services including monitoring, translating, transcribing and interpreting
services . . . .* RFP S: C.3. The RFP advised that the majority of
linguistic work would be for Spanish, but also identified more than 100
other possible required languages. See RFP S: J, attach. E.
The RFP, issued on April 23, 2002, provided for the award of an
indefinite-delivery, indefinite-quantity contract with fixed hourly rates
for a base period of 1 year and up to four 1-year options, to the offeror
whose proposal represented the *best value* to the government. RFP S:S:
B.1, B.2, M.2.1. Section M of the solicitation identified the following
three technical evaluation factors in descending order of importance:
(1) management plan; (2) quality control plan; and (3) transition plan.
Under the management plan factor, the RFP identified three separate
subfactors: (a) furnishing qualified personnel; (b) recruiting and
retention; and (c) security plan. Technical capability was considered
*substantially more important than cost.* RFP S: M.4.3. Section M
further provided that offerors were to submit past performance
information, which would be used to assess an offeror*s performance risk
(its likelihood of successful performance of the solicitation
requirements). RFP S: M.3.
Regarding the management plan*s second subfactor, recruiting and
retention,
section M explained that offerors were required to demonstrate their
ability to recruit and retain qualified personnel through various efforts
and, by way of example, identified *subcontractor agreements, teaming
arrangements and other initiatives to provide a pool of qualified
personnel on a continuous basis.* RFP
S: M.2.1. It further required offerors to identify their programs and
incentives to recruit and retain cleared and qualified personnel for the
various languages under the contract.
Under the second technical evaluation factor, quality control plan,
offerors were required to develop a *plan for this effort and define
implementation of the plan that ensures that the services described in the
solicitation are accomplished accurately, capably, and timely . . . .*
Id.
The third technical evaluation factor, transition plan, required offerors
to define a plan for the transfer of the Miami Field Division*s current
linguist support to the offeror*s workforce with minimal disruption to the
agency mission and to demonstrate how they will ensure continuity of
support during the transition period. Id.
While reserving the right to conduct discussions with offerors, the
solicitation advised that the government intended to evaluate proposals
and award a contract without discussions and, as a consequence, also
advised that initial proposals should contain the offerors* best terms
from a cost/price and technical standpoint.
The DEA received several proposals by the amended September 8, 2003
closing time, including a proposal from Transventures.[1] See RFP amend.
6. Upon receipt of the proposals, the agency convened a technical
evaluation panel (TEP), composed of three individuals, to evaluate the
offerors* technical proposals pursuant to the agency*s technical
evaluation plan. This plan directed the TEP to evaluate the offerors*
ability to demonstrate compliance with the technical evaluation factors
and subfactors, evaluate their past performance, and provide an overall
rating for each proposal of either acceptable, susceptible of being made
acceptable, or unacceptable. See Agency Report (AR), Tab 4, Technical
Evaluation Plan, app. B.
Based on its evaluation of Transventures* proposal, the TEP identified
various strengths and weaknesses and assigned a consensus score for each
technical factor and subfactor, as well as for Transventures* past
performance.[2] Transventures* proposal received a total consensus score
of 78 points: 24 out of 30 points for its management plan (8 out of 10
points for each subfactor); 21 out of 26 points for its quality control
plan; 15 out of 24 points for its transition plan; and 18 out of 20 points
for its past performance.[3] The TEP also rated Transventures* proposal,
overall, as unacceptable.
After receiving the TEP*s evaluation report, the contracting officer
established a competitive range and eliminated Transventures* proposal
from the competition because she concluded that Transventures could not
improve its technical score substantially through discussions. After
eliminating it from the competitive range, the DEA provided Transventures
with a written debriefing. In the debriefing, the DEA highlighted various
strengths and weaknesses under the technical evaluation factors and the
past performance factor, and included a summary rationale for eliminating
Transventures from the competitive range. In this summary, the
contracting officer noted that Transventures* proposal lost several points
in two technical areas, quality control plan and transition plan. With
regard to the quality control plan, the contracting officer stated that
Transventures* proposal did not explain how its plan would be *implemented
in the translation/Title III environment* and that there was little detail
referring to translation work. Protest, attach., Debriefing, Aug. 23,
2003. With regard to Transventures* transition plan, the summary stated
that Transventures* transition plan *was not identified adequately for the
technical evaluation panel to conduct a complete evaluation.* Id.
Transventures thereafter timely filed this protest objecting to the
exclusion of its proposal from the competitive range.
The determination of whether a proposal should be included in the
competitive range is principally a matter within the reasonable discretion
of the procuring agency; in reviewing such a determination, we will
consider only whether the documented evaluation was fair and reasonable
and consistent with the evaluation criteria and procurement statutes and
regulations. DSC Cleaning, Inc., B-292125, June 25, 2003, 2003 CPD P: 118
at 3. Contracting agencies are not required to retain in the competitive
range proposals that are not among the most highly rated or that the
agency otherwise reasonably concludes have no realistic prospect of
award. Federal Acquisition Regulation S: 15.306(c)(1); DSC Cleaning,
Inc., supra.
In this case, Transventures argues that the agency unreasonably evaluated
its proposal with respect to each technical evaluation factor and the past
performance factor, and specifically challenges each weakness noted in its
debriefing. [4] While not all of the issues are discussed here, we have
reviewed the entire record and conclude that the agency*s evaluation of
Transventures* proposal was consistent with the evaluation criteria and
that the DEA reasonably excluded Transventures from the competitive
range.[5]
For example, the contracting officer noted as part of her competitive
range determination that Transventures* proposal failed to clearly
identify or elaborate on retention incentives. While Transventures argues
that there was no requirement to explain its recruitment and retention
incentives, this position is belied by the express terms of the RFP,
which, as noted above, states, under the recruiting and retention
subfactor, that *[t]he contractor shall identify programs and incentives
to recruit and retain cleared, and qualified personnel for the various
languages anticipated.* RFP
S: M.2.1. (emphasis added).
The issues raised by Transventures concerning the DEA*s evaluation of its
quality control plan are similarly without support in the record. The DEA
significantly downgraded Transventures* proposal under this factor because
its plan lacked direct application to the RFP*s requirements.
Specifically, the contracting officer noted that Transventures* quality
control plan *appears to be a company standard document as there is no
specific reference to translation services nor implementation guidance, as
stated in the RFP.* AR, Tab 7, Competitive Range Determination, Aug. 8,
2003, at 5. The TEP also noted, in essence, that the plan did not address
wire room (Title III) requirements or how unusual translation situations
would be handled (i.e., how it would handle exotic language
requirements). AR,
Tab 6, Technical Evaluation Report, Aug. 26, 2003, at 15.
Transventures argues that these weaknesses were improperly attributed to
its proposal because the RFP did not require offerors to specifically
adapt their quality control plans for translation of Title III
requirements or to explain procedures for handling unusual or exotic
languages. Transventures further contends that, to the extent
clarifications were needed, the DEA could have held discussions to
*amplify our procedures.* Protest at 2. Contrary to Transventures*
assertions, however, the RFP required that the quality control plan
directly address the work under the solicitation (which included Title III
translating and the need for translation services of many languages other
than Spanish) and informed offerors that their plans would be evaluated
based on their ability *to meet all of the requirements under the
contract.* RFP S: M.2.1. (emphasis added). Because our review of
Transventures* proposal confirms the agency*s conclusions that
Transventures only addressed the quality control plan in a general sense
and that it did not explain how the plan would meet the particular
requirements set forth in the RFP, we conclude that the DEA reasonably
evaluated Transventures* proposal with respect to this factor.
With regard to Transventures* other point, that the DEA could have held
discussions to further clarify its proposal, as noted previously, the RFP
specifically provided that the DEA intended to make award without
discussions. Therefore, it was incumbent upon Transventures to submit a
complete proposal, one that clearly addressed the requirements of the RFP
without the need for discussions. See AMS Mech. Sys., Inc., B-281136,
B-281136.2, Jan. 4, 1999, 99-2 CPD P: 59 at 9-10.
Transventures also complains about the DEA*s evaluation of its transition
plan and asserts that the agency*s requirement for a transition plan
placed an undue burden on offerors. As an initial matter, Transventures*
challenge that the transition plan was unduly burdensome is untimely since
it is directed against the terms of the solicitation and, under our Bid
Protest Regulations, should have been raised prior to the time set for the
receipt of proposals. See 4 C.F.R. S: 21.2(a)(1) (2003).
As to the DEA*s evaluation, it is clear that the DEA reasonably downgraded
Transventures* proposal for failing to include a separate transition
plan. The RFP expressly required offerors to include a defined plan for
transferring the Miami Field Division*s current linguist support to the
offeror*s workforce with minimal disruption to the agency mission and
required offerors to demonstrate how they would ensure continuity of
support during the transition period. When the contracting officer made
her competitive range determination, she highlighted the fact that
Transventures failed to include a clear transition plan; the TEP similarly
faulted Transventures* proposal for failing to include a clearly
identified plan.
Without specifically addressing the fact that it did not include a
separate section dedicated to the transition plan requirement,
Transventures contends that its proposal essentially complied with this
requirement, first, by providing that the firm would retain displaced
personnel by offering a right of first refusal to current employees and
would arrange for temporary corporate transition support to fill any
position until a permanent employee can be hired, and, second, by
referencing the firm*s ability to furnish and recruit qualified
personnel. The agency correctly points out, however, that these
statements merely address personnel recruitment issues. They do not
address how Transventures will minimize disruption to the agency*s
mission, nor do they explain how Transventures will ensure continuity of
support. Under these circumstances, we have no basis to object to the
DEA*s evaluation of Transventures* proposal in this regard.
As a final matter, Transventures* challenge to its past performance
evaluation is without merit. Transventures specifically argues that the
agency did not consider the experience of its key personnel or the past
performance of the members of the joint venture. [6] The record, however,
clearly reflects that the TEP, based upon the information Transventures
submitted for its key personnel and its joint venture members, awarded
Transventures 18 out of 20 points under the past performance factor (the
equivalent of a *good* rating according to the individual evaluators*
score sheets). The TEP noted that Transventures* list of contracts was
*impressive,* it had highly rated performance surveys, it showed
substantial experience in translation and transcription, and its
experience was pertinent. AR, Tab 6, Technical Evaluation Report, at
15-16. The TEP, however, did not award Transventures the maximum past
performance score because Transventures* past performance surveys were
from individual members of the joint venture, not Transventures. The
contracting officer stated that while the agency considered the past
performance references from the individual members of the joint venture,
*the lack of reference for the venture itself left some doubt for the TEP
as to the capability of the entire venture.* AR, Tab 2, Contracting
Officer*s Statement at 6. Because an agency may reasonably consider the
experience of the individual members of a joint venture, and at the same
time, consider the lack of experience of the joint venture itself, see ITT
Federal Servs. Int*l Corp., B-283307, B-283307.2, Nov. 3, 1999, 99-2 CPD
P: 76 at 14, there is no basis for disturbing the agency*s evaluation of
the protester*s past performance here.
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] The protester here proceeded pro se and thus did not have access to
certain information in the record subject to protection from disclosure
other than to counsel pursuant to the terms of a protective order.
Accordingly, our discussion in some areas is necessarily general in nature
in order to avoid reference to protected information (such as the number
of proposals received). Our conclusions, however, are based on our review
of the entire record.
[2] The total possible score an offeror could receive was 100 points.
Technical
factor 1, management plan, had a maximum of 30 points (10 points for each
of the three subfactors); technical factor 2, quality control plan, had a
maximum of
26 points; and technical factor 3, transition plan, had a maximum of 24
points. A maximum of 20 points were available under the past performance
evaluation factor. On the individual evaluators* technical score sheets,
these point scores also corresponded to adjectival ratings of excellent,
good, satisfactory, minimally satisfactory, or unsatisfactory (e.g., 15
points or less under the transition plan factor would have corresponded to
an unsatisfactory rating).
[3] Transventures* total score of 78 points was the second lowest total
score received by any offeror.
[4] It appears that Transventures* debriefing included statements
addressing proposal weaknesses that were not identified as weaknesses in
the TEP consensus evaluation or considered by the contracting officer as
part of her competitive range determination. For example, under the
management plan factor, the debriefing notes, as a weakness, that
Transventures* *training requirements are minimal.* This concern,
however, does not appear in the TEP report, nor does it appear as part of
the competitive range determination. With regard to those weaknesses
highlighted in Transventures* debriefing but without foundation in the
contemporaneous record, while the agency fails to address the discrepancy,
these weaknesses were not part of the DEA*s competitive range
determination and we therefore do not address Transventures* challenges on
these grounds.
[5] We note that rather than filing comments responding to or seeking to
rebut the points articulated by the agency in its report, Transventures
indicated in its comments that it was relying on the assertions in its
protest.
[6] Transventures is a joint venture among three companies: Hurricane
Consulting, Inc., ALT Services, Inc., and Linguistic Consulting
Enterprises, Inc.