TITLE:  Network Engineering, Inc., B-292996, January 7, 2004
BNUMBER:  B-292996
DATE:  January 7, 2004
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Network Engineering, Inc., B-292996, January 7, 2004

   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:   Network Engineering, Inc.
    
File:            B-292996
    
Date:              January 7, 2004
    
Ernest W. McIntosh, Esq., and Anthony G. Newman, Esq., Newman & McIntosh,
for the protester.
Edward H. Kim, Esq., and Kenneth J. Ingram, Esq., Whiteford, Taylor &
Preston, for Access Systems, Inc., an intervenor.
James L. Weiner, Esq., and Alton E. Woods, Esq., Department of the
Interior, U.S. Fish and Wildlife Service, for the agency.
Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest of agency*s evaluation of quotations and *best value* selection of
slightly higher-priced, higher technically rated quotation is denied where
record shows evaluation and selection were reasonable and consistent with
solicitation.
DECISION
Network Engineering, Inc. protests the agency*s evaluation of quotations,
and the selection of a higher-rated, slightly higher-priced quotation from
another vendor, Access Systems, Inc., under request for quotations (RFQ)
No. 9821-03-Q121, issued by the Department of the Interior, U.S. Fish and
Wildlife Service, for information technology systems support services. The
protester contends that the agency*s evaluation of its quotation was
improper and that it should have been the successful vendor because its
quotation was technically acceptable and it offered a lower price than did
Access.
    

   We deny the protest.
    
The RFQ, set aside for small business concerns, was issued on August 21,
2003 under simplified acquisition procedures.  The solicitation
contemplated a base year blanket purchase agreement, with four option
periods, for local area network (LAN) support services, including
assistance in planning, installing, and optimizing hardware, software, and
procedures for information technology systems.  The source selection was
to be based on the agency*s determination of which quotation presented the
best overall value considering the following three evaluation factors,
listed in descending order of importance:  past performance of a similar
nature; relevant staff experience and availability; and price.  For the
past performance factor, firms were to describe their relevant experience
and provide up to three references for recent similar work.  For the
evaluation of relevant staff experience and availability, firms were to
include detailed staffing plans, letters of intent for certain positions,
and information regarding recruiting and training employees.
    
Five vendors submitted quotations which, along with their oral
presentations, were evaluated and ranked by the agency.  Access*s
quotation, at an evaluated price of $1,424,924, was ranked highest for
technical merit; Network*s quotation, at an evaluated price of
$1,384,059.60, was ranked fourth.  Access*s quotation received ratings of
*exceptional* under both technical evaluation factors (past performance
and staff experience/availability), and an overall technical rating of
*exceptional.*  Network*s quotation received a rating of *good* under the
past performance factor, a rating of *poor* under the staffing factor, and
an overall technical rating of *good.*  Finding the difference in price
between Access*s and Network*s quotations minimal, the agency concluded
that the quotations were essentially equal in terms of price, and that
technical merit would become the discriminator in the source
selection.[1]  The agency determined that the technical superiority of the
Access quotation, primarily under the staffing factor, presented the best
value to the agency and was worth the minimal additional cost.  Network
learned of the agency*s source selection on September 26.  This protest
followed the firm*s October 1 debriefing. 
    
Network contends that the agency*s evaluation of its quotation was
improper, arguing that the agency unfairly failed to give the firm credit
for offering to consider the use of incumbent personnel; alternatively,
Network argues that the agency failed to advise vendors that additional
evaluation credit would be granted for using incumbent personnel.  Network
also generally protests the agency*s evaluation of its past performance.
    
We will review an agency*s technical evaluation to ensure that it is
reasonable and consistent with the evaluation criteria and applicable
procurement laws and regulations; a protester*s disagreement with an
agency*s evaluation does not render it unreasonable.  See Lynwood Mach. &
Eng*g, Inc., B-285696, Sept. 18, 2000, 2001 CPD P: 113 at 4.  In a
best-value procurement, there is no requirement that the source selection
be made on the basis of lowest price unless the solicitation so specifies;
rather, price/technical tradeoffs may be made and the extent to which one
may be sacrificed for the other is governed only by the test of
rationality and consistency with the solicitation*s evaluation terms.  See
DDD Co., B-276708, July 16, 1997, 97-2 CPD P: 44 at 3.  Based on our
review of the record here, we have no basis to question the reasonableness
of the agency*s evaluation or source selection.
    
Although Network*s quotation was considered acceptable, the agency reports
that it was rated  *poor* under the staffing factor due to numerous
weaknesses.  For instance, the evaluators found that although the RFQ
required that all LAN engineers be Microsoft Certified Systems Engineers,
two of Network*s engineers did not possess the requisite certification;
the firm*s quotation was downgraded on this basis.  Additionally,
Network*s limited training budget and self-paced training program were
considered weaknesses, since the evaluators questioned whether employees
could or would find the time for self-training.  Also, while Network*s
quotation emphasized the firm*s networking and telecommunications work,
the agency downgraded it for failing to detail relevant user support
work.  Finally, the evaluators questioned the accuracy of resumes
submitted for Network*s proposed staff (as outdated, incomplete, or
suggesting periods of unexplained unemployment).  The protester does not
challenge any of these negative determinations.  Instead, Network argues
only that, since Access was credited for submitting letters of intent from
each of the incumbent contractor*s employees, Network should have been
told that staffing the project with incumbent employees was either
required or preferred by the agency; Network alternatively argues that it
should be credited for at least showing a general intent or willingness to
review incumbent personnel qualifications for possible future employment.
    
We see no basis to conclude that the agency used unstated evaluation
criteria in considering the use of incumbent personnel.  While procuring
agencies are required to identify significant evaluation factors and
subfactors in a solicitation, they are not required to identify various
aspects of each factor which might be taken into account, provided that
they are reasonably related to or encompassed by the RFP*s evaluation
criteria.  NCLN20, Inc., B-287692, July 25, 2001, 2001 CPD P: 136 at 2. 
Here, the RFQ specifically advised firms that relevant staff experience
and availability constituted an important selection factor.  Without
question, Access*s use of highly experienced incumbent personnel is
relevant to the staff experience factor; likewise, their letters of intent
directly demonstrate staffing availability and commitment to perform under
the RFQ; and, as the agency evaluators concluded, the experience and
availability of the incumbent staff adds benefits in terms of a smooth
transition and start-up by the new vendor.  The agency thus reasonably
regarded these features of Access*s proposal as directly related to, and
encompassed by, the RFQ*s staff experience and availability evaluation
factor.
    
To the extent the protester is arguing it had no basis to think that use
of incumbent personnel would be viewed as a strength in the evaluation,
the protester*s position is without merit.  Not only is the area
reasonably encompassed by the RFQ*s evaluation scheme, as discussed above,
but the record shows that the agency asked clarification questions of the
firm during oral presentations on the matter, indicating the agency*s
interest in any intended use of incumbent personnel.  Moreover, Network*s
own alternative argument--that mentioning the possible use of incumbent
personnel in its quotation should be credited as a strength in the
evaluation--undermines its argument that it had no reason to think the
agency would consider the benefits of using experienced incumbent staff.
    
In this regard, while Network contends that it should have received
evaluation credit for simply mentioning in its quotation that it plans to
review incumbent personnel qualifications for possible employment for work
to be performed under the RFQ, we see no basis to conclude that such
credit was warranted.  Unlike Access*s detailed incumbent staffing plan
and letters of intent, Network did not demonstrate in any way how, when,
or where such incumbent staff would be used by the firm.  As the agency*s
evaluators pointed out, Network instead staffed its project with its own
personnel, some of whom lacked proper certification. 
    
Next, Network questions the propriety of the agency*s past performance
evaluation, arguing that the agency improperly selected Access without
waiting to receive past performance information from Network*s
references.  The agency reports that, since only one of Network*s prior
contracts appeared relevant to the work required here, the agency only
attempted to contact the two individuals cited as the contact points for
that reference; neither individual, however, could be reached that day,
and neither responded prior to the agency*s issuance of its source
selection determination.   Shortly thereafter, one of the individuals did
respond and provided a positive reference for Network.  The agency
reports, however, that the reference did no more than support the *good*
rating for past performance that Network had already received from the
evaluators.  According to the agency, Network, with only one relevant
contract, did not show the level or quality of past performance necessary
to justify an *exceptional* rating.  In comparison, Access*s rating of
*exceptional* was based on that firm*s and its subcontractor*s more
relevant and more substantial experience in providing, for example,
excellent services under the predecessor contract for the same
requirements, and user support services to over 80 agencies nationwide,
including one contract that serves 14,000 users.  We see no basis to
question the adequacy of the past performance evaluation here or the
difference in ratings between Access and Network based upon the breadth of
experience and quality of performance shown in the quotations and the
evaluation record.
    
The protester argues that the agency was required by the terms of the RFQ
to make contact with its references prior to making its selection
decision.  An agency properly may proceed with an evaluation without input
from references if reasonable efforts have been made to contact them.  See
Lynwood Mach. & Eng*g, Inc., supra, at 5.  Here, the record shows that the
agency initially made a relevance determination concerning the three
projects listed, and then reasonably chose to contact a reference for the
only relevant contract.[2]  The RFQ  specifically provided that repeated
attempts to contact references would not be made; it also specifically
provided that after two failed attempts to reach a reference, the
reference would be eliminated from consideration.  Consistent with the
language in the RFQ, the agency made two attempts (one to each of two
individuals) to contact a reference for the relevant contract.  Further,
the agency already had assigned a rating of *good* to Network under the
past performance factor, apparently based on the description in Network*s
quotation of the one relevant contract referenced.  As explained above,
when one of the contacts for that contract responded to the agency, he
gave a positive reference that simply confirmed the agency*s rating.  Our
review of the record shows no basis to suggest that Network*s rating would
have increased even if the reference had been provided earlier.
    
In any event, as the agency and intervenor point out, it appears that
Network was not prejudiced by the alleged error in the overall past
performance rating.  The protester has not challenged the agency*s
determination that the difference in price between the Access and Network
quotations was not significiant, and, as stated above, Network has not
shown that its rating of *poor* under the staff experience and
availability factor lacks a reasonable basis.  Thus, even if the
protester*s past performance rating were raised from *good* to
*exceptional,* making its rating under that factor equal to Access*s, in
light of the significant difference in ratings under the staffing factor
(*poor* versus *exceptional*), Access*s quotation would clearly remain the
higher technically rated of two quotations essentially equal in price,
thus providing no basis to change the agency*s best-value source selection
determination.  Competitive prejudice is a critical element of a viable
basis of protest, and Network has not shown that, but for the agency*s
evaluation of its past
performance, it would have had a substantial chance of selection here.[3] 
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).
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    

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

   [1] Network does not challenge the agency*s determination of its evaluated
price at $1,384,059.60, and also does not challenge the agency*s
determination that the Network and Access quotations were essentially
equal in evaluated price.  In its comments responding to the agency
report, Network, for the first time, challenges the agency*s
communications about, and acceptance of, a price reduction by Access after
oral presentations.  We will not review this contention, however, as it
was not filed within 10 days of Network*s receipt of the agency*s report
that discussed vendor pricing, and thus is untimely.  See Bid Protest
Regulations, 4 C.F.R. S: 21.2(a)(2) (2003).
[2] The protester does not challenge the agency*s conclusion that only one
of the three referenced contracts was relevant.
[3] Although Network generally alleges that an agency employee may have
shared inaccurate negative performance information about the protester
with the evaluators, the agency states that the challenged communication
took place after the source selection had been made, and thus was not a
basis for the selection.