TITLE: U.S. Facilities, Inc., B-293029; B-293029.2, January 16, 2004
BNUMBER: B-293029; B-293029.2
DATE: January 16, 2004
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U.S. Facilities, Inc., B-293029; B-293029.2, January 16, 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: U.S. Facilities, Inc.
File: B-293029; B-293029.2
Date: January 16, 2004
William A. Roberts, III, Esq., Phillip H. Harrington, Esq., Janet L.
Eichers, Esq., and Derek A. Yeo, Esq., Wiley Rein & Fielding, for the
protester.
Peter F. Marvin, Esq., and Justin K. Miller, Esq., Marvin, Larsson, Henkin
& Scheuritzel, for Elliott-Lewis Corporation, an intervenor.
Kimberly Y. Nash, Esq., and Bruce M. Kasson, Esq., Department of Housing &
Urban Development, for the agency.
Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protester*s contention that the agency should have rejected, or
downgraded, the awardee*s proposal for its failure to offer a project
manager who would be available during performance is denied where the
record shows that the awardee disclosed during negotiations that the
project manager identified in its initial proposal had been promoted and
would eventually be unavailable to serve as offered, and shows that, after
discussion with the agency, the awardee promised in its final revised
proposal that, if it were selected for award, the project manager would
serve as offered until completion of the transition phase of the contract,
and until a replacement suitable to both parties could be found.
2. Even when there is no requirement in a solicitation to obtain
commitments from non-key incumbent personnel, an agency reasonably may
favorably evaluate an offeror*s stated intent to retain as many of the
non‑key incumbent employees as possible.
3. Protester*s contention that the agency unreasonably evaluated
different approaches in the offerors* price proposals is denied where the
record shows that the solicitation contained a patent ambiguity that
neither offeror raised prior to submission of its proposal, and where both
offerors took affirmative and reasonable steps to clearly explain their
approach to the ambiguity.
4. Protester*s assertion that it should have received a higher past
performance rating, and the awardee a lower one, based in part on the
protester*s performance of the incumbent contract for the previous 5
years, is denied where the record shows that the agency credited the
protester for its performance as the incumbent, but reasonably placed
greater value on certain experiences the awardee presented in its
proposal.
5. Protester*s allegation that the agency held improper discussions with
only the awardee after submission of final revised proposals is denied
where the record shows that the contracting officer appropriately sought
confirmation of the awardee*s prices, or a request to correct a mistake,
but did not invite the awardee to modify or revise its proposal.
6. A source selection official*s adoption of an evaluation panel*s
findings and recommendation for award does not, without more, provide
evidence that the selection official abdicated his responsibility to make
independent judgments; protester*s assertion that he did so is denied
where the record shows that the selection official was clearly involved in
the procurement from its outset to its conclusion.
DECISION
U.S. Facilities, Inc. (USF) protests the award of a contract to
Elliott-Lewis Corporation (ELC), by the Department of Housing and Urban
Development (HUD), pursuant to request for proposals (RFP) No.
R-OPC-22360, for facility management services at HUD*s headquarters
building in downtown Washington, D.C. USF argues that HUD*s evaluation of
proposals was unreasonable in several ways, that HUD improperly held
discussions only with ELC after both offerors had submitted final revised
proposals, and that the source selection official failed to make an
independent selection decision.
We deny the protest.
BACKGROUND
The RFP here was issued on December 20, 2002, to procure, on a
consolidated basis, all management, supervision, labor, materials,
supplies, repair parts, tools, and equipment needed for facilities
management services for HUD*s headquarter*s building for a base period of
1 year, followed by up to four 1-year options. RFP at I‑C-1, F-2.
The solicitation identified eight types of services covered by the RFP.
These were: (1) operations and maintenance (O&M) services, (2) elevator
services, (3) electrical services, (4) space alteration services, (5)
moving services, (6) lock and key services, (7) painting services, and (8)
courier services. Agency Report (AR), at 2. The specific tasks required
in each service area were identified in the RFP*s statement of work, while
a detailed 427-page pricing schedule, organized by service area, was set
forth in section B of the solicitation.
The RFP anticipated the award of a hybrid fixed-price, indefinite-quantity
contract to the offeror whose proposal was found to provide the best value
to the agency considering the combined relative merit of technical
proposals and price. Id. at L-1, M-1. To determine the proposal with the
greatest technical merit, the RFP identified three evaluation factors--(1)
management and plan of operation, (2) offeror*s experience and
qualifications, and (3) subcontracting plans/commitment--and advised that
the factors were identified in descending order of importance. Id.
at M‑2, M-3. The first two of these evaluation factors included
subfactors. For the management and plan of operation factor, the RFP
identified five subfactors: (1) operating plan, (2) organizational plan,
(3) work schedule, (4) phase-in plan, and (5) quality control plan; for
the offeror*s experience and qualifications factor, the RFP identified two
subfactors: (1) corporate experience/past performance, and (2) key
personnel. Id. With respect to price, the RFP advised that the technical
evaluation factors identified above would be *significantly more
important* than cost or price. Id. at M-1.
HUD received three proposals in response to its solicitation, one from USF
(an entity that acquired the incumbent contractor, Halifax Technical
Services), one from ELC, and one from a third offeror later excluded from
the competitive range. The proposals were forwarded to a technical
evaluation panel (TEP) where they were separately assessed under each of
the eight service areas covered by the RFP and given adjectival ratings
(excellent, very good, good, poor, and unsatisfactory) under the first two
evaluation factors and their subfactors; under the third evaluation
factor, subcontracting plans/commitment, the proposals were evaluated on
an overall basis (rather than by service area). See Initial TEP Report at
1st unnumbered page following p. 5. At the conclusion of this review, the
TEP determined that both ELC and USF had submitted acceptable proposals,
that both proposals presented low performance risk, and that discussions
should be held with both companies. AR at 7‑9.
During the course of this competition, and especially during negotiations,
two matters were developing that are related to protest issues discussed
later in this decision. The first involves the availability of ELC*s
proposed project manager; the second involves an apparent omission from
the RFP*s pricing schedule and the impact of that omission on this
competition.
In its initial evaluation of ELC*s proposed project manager, the TEP noted
that the individual had 15 years of experience in the management of
facilities maintenance and construction services. This experience
apparently contributed to the TEP*s rating of the proposal as *good* under
the key personnel subfactor of the experience and qualifications
evaluation factor. Initial TEP Report at 12.
During oral negotiations, ELC advised HUD that its proposed project
manager had been promoted since the time he had been identified in the
initial proposal, and ELC and HUD discussed how this matter should be
addressed. In its final proposal revisions (FPR), ELC represented that if
it were selected for award, its proposed project manager would serve as
project manager during the transition phase of the contract, despite his
promotion. The FPR also assured HUD that its project manager was
*committed to remain [as project manager] until a replacement that is
suitable to [ELC] and HUD is found and is familiarized with the HUD
facility and [ELC*s] processes.* AR, Tab 4 (ELC FPR, O&M Technical
Proposal, question 5).
The second matter related to the protest issues discussed below involves
the pricing of portions of the O&M work required by this solicitation. As
initially issued, one of a myriad of requirements in the O&M portion of
the RFP was that potential offerors replace the equivalent of two complete
floors of suspended ceiling tile, and floor tile, in corridors and other
common areas of the building during each year of the contract. RFP at
I-C-28. Despite the numerous requirements related to O&M, the initial RFP
contained only a single contract line item number (CLIN) for pricing all
O&M work. RFP at B-71.[1] Prior to the submission of initial proposals,
the RFP was amended to add separate sub-CLINs for some of the different
types of O&M work, but the amendment did not include a sub-CLIN for the
ceiling and floor tile work described above. RFP amend. 3, at 3.
HUD received a written question from USF asking about the apparent
omission of a sub-CLIN for the ceiling and floor tile work. This
question, and the answer thereto, was published in amendment 0006 to the
RFP. Specifically, the question pointed out the apparent omission, and
asked if HUD wanted a separate price for the cost of the work. HUD
replied: *Yes, a separate price for ceiling tiles and grid work is
required.* RFP amend. 6, at 6. Despite this answer, HUD did not revise
the pricing schedule in section B to add a sub-CLIN for the O&M ceiling
and floor tile work before receiving and evaluating initial proposals. On
July 2, 2003, HUD issued a final amendment to the solicitation again
revising the pricing schedule for use by offerors in submitting their
FPRs. RFP amend. 8. Again, the revised pricing schedule in amendment 8
did not add a sub-CLIN for the O&M ceiling and floor tile work.
ELC and USF addressed this conflict in HUD*s solicitation in different
ways. The ELC proposal submitted prices for each of the sub-CLINs in the
pricing schedule, and submitted a higher price (significantly higher than
the total of the identified sub-CLINs) for the overall category of O&M.
The narrative portion of ELC*s FPR advised that the company had made its
best efforts to break out the costs associated with the O&M sub-CLINs
identified by HUD. The proposal also advised that all other costs
associated with O&M services were included within the overall O&M CLIN.
ELC FPR at 5. In contrast, USF altered the solicitation*s price schedule
to add two sub-CLINs for pricing the ceiling and floor tile work. USF
FPR, Schedule B, Sub-Clins *0003AI* and *0003AJ*. As with ELC*s proposal,
USF submitted a higher price for the overall category of O&M than the sum
of its prices for the O&M sub-CLINs. Id. at CLIN 0003.
On July 2--the same date amendment 0008 was issued--HUD requested
submission of FPRs not later than July 15. In its final evaluation of
proposals, the TEP noted that, of the eight service areas identified in
the solicitation, both USF and ELC proposed to subcontract all but O&M,
and that both offerors proposed the same subcontractors for six of the
seven remaining service areas. Thus, the only perceived difference
between the two technical proposals was in the O&M service area, the most
important of the eight areas, and in the subcontractor identified to
provide courier services, the least important of the eight areas. With
respect to courier services, the TEP concluded that the two courier
subcontractors did not provide a basis for distinguishing between the
proposals. As a result, the TEP focused on the evaluation of the portion
of the proposals dedicated to the most important service area, O&M
services. Final TEP Rep. at 21.
In its review of FPRs, the TEP did not recite each of the final adjectival
ratings by factor and subfactor. Rather it prepared a top-level summary
of the results of the evaluation, set forth below, and turned its focus to
the ways in which the two proposals could be distinguished in the area of
O&M services.
Summary of Final Evaluation Results
+------------------------------------------------------------------------+
| |ELC |USF |
|-------------------------------+---------------------+------------------|
|Technical Evaluation |Very Good |Good |
|-------------------------------+---------------------+------------------|
|Subcontracting Plan Evaluation | | |
| |Excellent |Excellent |
|-------------------------------+---------------------+------------------|
|Total Price |$23.8 million |$25.3 million |
+------------------------------------------------------------------------+
Final TEP Rep. at 28.
The TEP*s final report identified two areas for discriminating between the
proposals‑‑the quality control plan (the fifth enumerated
subfactor under the management and plan of operation evaluation factor),
and experience (considered under the experience and qualifications
evaluation factor). The TEP concluded that the ELC quality control plan
was more detailed than USF*s plan and described techniques that provide
greater levels of accountability than USF*s approach. This difference,
among others, led the TEP to conclude that ELC would provide a more
aggressive approach to quality control than would USF. Final TEP Rep. at
21-24.
With respect to experience, the TEP concluded that ELC had *demonstrated
historical performance that is characterized by flexibility to meet
customer needs and commitment to economical performance of duties.* Id.
at 25. In contrast, the TEP concluded that USF*s past performance
submissions did not contain information sufficient to demonstrate
successful results and the use of alternative strategies. Id. at 26.
Thus, the TEP concluded that the ELC proposal was technically superior to
the proposal of USF, that ELC*s demonstrated experience exceeded that of
USF, and that ELC*s lower evaluated price made its proposal the best value
to the government. Id. at 27-28. As a result, the TEP recommended award
to ELC at its evaluated price of $23.8 million, rather than to USF at its
evaluated price of $25.3 million. Id. at 28.
On September 26, the source selection official (SSO) here indicated his
concurrence with the recommendation of the TEP, and added his signature to
the last page of the final TEP report. Id. at 29. On September 30, the
contract was awarded to ELC and this protest followed.
DISCUSSION
USF*s protest challenges the evaluation in three areas--the assessment of
ELC*s interim project manager; HUD*s acceptance of the two different
approaches to pricing the ceiling and floor tile work required within O&M
services; and past performance. USF also contends that HUD improperly
held discussions only with ELC after both offerors had submitted FPRs, and
that the SSO failed to make an independent assessment of proposals when he
adopted the TEP*s final report with his signature.
Turning first to USF*s challenges to the evaluation, our standard in
reviewing such challenges is to examine the record to determine whether
the agency*s judgment was reasonable and consistent with stated evaluation
criteria and applicable statutes and regulations. ESCO, Inc., B-225565,
Apr. 29, 1987, 87-1 CPD P: 450 at 7. Based on our review, we agree with
the agency*s assessments; our reasons are set forth below.
The Evaluation of Key Personnel, including ELC*s Project Manager
USF argues that HUD should have rejected ELC*s proposal for its failure to
offer a project manager who would be available during performance.
Alternatively, USF contends that any favorable assessment of ELC*s
proposed project manager renders the evaluation unreasonable, given that
the agency knew that the project manager would be replaced with an, as
yet, unknown individual who might, or might not, have the same strengths
or weaknesses as the project manager HUD evaluated.
HUD disputes USF*s contentions and argues that the situation here must be
distinguished from situations where an offeror knowingly misrepresents the
availability of key personnel. HUD points out that ELC candidly advised
the agency during discussions that the project manager identified in its
initial proposal had been promoted, and would eventually be unavailable to
serve as offered. After discussion of the matter, ELC represented in its
FPR that if it were selected for award, the proposed project manager would
remain through the transition phase of the contract, despite his
promotion, and until a replacement suitable to ELC and HUD was found. HUD
explains that, once it received these commitments, it properly based its
evaluation of key personnel, in part, on ELC*s proposed project manager.
We agree with HUD*s view that the situation here is different--and
distinguishable--from those where an offeror misrepresents the
availability of key personnel in a way that materially influences an
agency*s consideration of the offeror*s proposal. For example, USF points
to our prior decision in CBIS Fed. Inc., B-245844.2, Mar. 27, 1992, 92-1
CPD P: 308, where we stated that *[p]roposing to employ specific personnel
that the offeror does not expect to actually use during the contract
performance has an adverse effect on the integrity of the competitive
procurement system and generally provides a basis for proposal
*rejection.** Id. at 5 (citing Informatics, Inc., B-188566, Jan. 20,
1978, 78-1 CPD P: 53). In our view, there are important differences
between the facts in CBIS, and those here.
In CBIS, an offeror answering a negotiation question about its key
employees failed to advise the agency that one of its key employees had
expressly withdrawn her name from availability to work on future
contracts. CBIS, supra, at 6. Likewise, several of the cases cited in
the CBIS decision also involve situations where, during negotiations,
awardees withheld from procuring agencies the knowledge that proposed key
personnel had become unavailable since they were initially proposed. See,
e.g., Omni Analysis, B-233372, Mar. 6, 1989, 89-1 CPD P: 239 at 3 (protest
sustained where the awardee*s final proposal contained continued
assurances that its personnel team remained intact, even though it knew
that two key individuals had become unavailable after submission of the
initial offer).
In marked contrast, there was no misrepresentation here. The awardee
disclosed the promotion of its project manager, and discussed with the
agency a possible remedy for the situation. In its FPR, the awardee then
promised that, if it were selected for award, the proposed project manager
would serve during the critical transition phase and remain on the job
until the contractor and the agency agreed on a replacement. In this
situation--unlike in Informatics, Omni, CBIS, and their progeny--there is
no concern that the contractor*s actions have harmed the integrity of the
competitive procurement system.
While we recognize the differences between the misrepresentation cases
identified above and the situation here, we note that in several of those
cases we advised that when an offeror knows prior to submission of a final
proposal that proposed key employees are no longer available, the offeror
should withdraw the individuals and propose substitutes who will be
available. See, e.g., CBIS, supra, at 5; Omni Analysis, supra. USF
submits that this principle should apply in any case where offered key
personnel are no longer available--regardless of whether there was a
misrepresentation--and contends that it was unreasonable for the agency
not to require ELC to propose a replacement for its project manager.
In further support of its contention, USF directs our attention to at
least one case where there was no mispresentation by the offeror, but
where the agency directed a wholesale substitution of 13 of 18 evaluated
key personnel approximately 1 hour after contract award. In that case, we
sustained the protest on the basis that the agency, in effect, held
discussions with only the awardee and improperly allowed the awardee to
modify its proposal without giving other offerors an equal opportunity to
do so. KPMG Peat Marwick, LLP, B-259479, May 9, 1995, 95-2 CPD P: 13 at
10-12.
Although the Peat Marwick case was ultimately decided on different grounds
from those at issue here, we think the facts there are instructive
for--and very different from--the situation at hand. In Peat Marwick, the
agency improperly based a selection decision, at least in part, on the
strength of proposed key personnel from which it received no benefit, not
even for a day. Here, the agency will receive the benefits of ELC*s
proposed project manager during the period of transition from one
contractor to another--often considered one of the critical periods of
contract performance--and will continue to receive those benefits until
such time as a mutually agreed-upon replacement is obtained. Further, we
think HUD could reasonably conclude that having access to this manager
during the transition period provides a benefit to the agency, given the
manager*s 15 years of experience. Since HUD is, in fact, obtaining ELC*s
project manager (at least during the transition period), and since the
agency will have access to the project manager until an acceptable
replacement is provided, we are not prepared to say that consideration of
the proposed project manager rendered the evaluation here unreasonable.
USF also raises two other challenges to the evaluation of key personnel
here. First, it argues that HUD should have discriminated between ELC*s
project manager and the one offered by USF, who has 20 years of
experience, including serving as the project manager on the incumbent
contract. Second, it argues that it was unreasonable for HUD to view
favorably the awardee*s stated intent to hire as much of the incumbent
workforce as possible.
On both fronts, we see no reason to question the evaluation here. First,
there is no basis in this record to support a finding that the agency
failed to recognize certain differences between the two project managers
proposed for this contract--even if the agency did not conclude that the
differences merited different ratings. For example, the initial
evaluation narrative expressly identifies the experience of the proposed
project managers, and in so doing, recognizes that USF*s proposed project
manager has 5 years more experience than ELC*s proposed project manager
(20 years of experience versus 15 years of experience). Initial TEP Rep.
at 12-13 (ELC project manager), 52-53 (USF project manager). The
evaluation narrative also recognizes that USF*s proposed project manager
served as the project manager on the incumbent contract. Id. at 53. At
the conclusion of the initial evaluation both offerors received a rating
of *good* under the key personnel subfactor, which incidentally,
considered the merits of other key personnel as well, not just the merits
of the proposed project managers. At the conclusion of negotiations, and
after review of FPRs, the final TEP report did not identify key personnel
as a basis for discriminating between these proposals. Based on our
review of the record, and of USF*s challenges, we have no reason to find
that the agency was required to reach a contrary conclusion.
With respect to the fact that the agency apparently valued ELC*s stated
intent to hire as many of the incumbent employees as possible, USF argues
that any favorable consideration of this matter is unreasonable without
letters of commitment or other concrete evidence. We disagree. Despite
the various ways agencies attempt to address this issue in solicitations,
the incumbent workforce is often the best possible source of individuals
who will be familiar with the day-to-day requirements of performing these
services. We also recognize that once competitions end, and the
proverbial smoke clears, many incumbent employees are interested in
retaining their jobs, regardless of the corporate entity that holds the
contract with the government. Accordingly, we have held that, even where
there is no requirement in an RFP to obtain commitments from incumbent
personnel, an agency may nonetheless reasonably draw favorable conclusions
about an offeror*s stated intent to retain as many of the incumbent
employees as possible. Orbital Technologies Corp., B-281453 et seq., Feb.
17, 1999, 99-1 CPD P: 59 at 5-7.
Evaluation of Prices for Ceiling and Floor Tile Work
USF next argues that the agency did not evaluate the price proposals of
the two offerors on an equal basis. In this regard, USF contends that its
price proposal contained specific and clearly identifiable prices for
ceiling and floor tile work, as required by the RFP, and that ELC*s
proposal did not. In addition, USF notes that its price for this work
exceeds the evaluated price difference between the two proposals.
As indicated in detail above, the solicitation here contained conflicting
instructions about how offerors should price ceiling and floor tile work.
Specifically, after the agency initially released the RFP with only a
single CLIN for pricing all O&M work, amendment 0003 to the RFP added
separate sub-CLINs for some types of O&M work, but not for ceiling and
floor tile work. When USF asked whether HUD wanted a separate price for
the ceiling and floor tile work, HUD responded, in amendment 0006, *[y]es,
a separate price for ceiling tiles and grid work is required.* Despite
this answer, HUD*s final revised pricing schedule, published in amendment
0008 to the solicitation, did not add sub-CLINs for the O&M ceiling and
floor tile work.
As also indicated above, USF and ELC addressed this matter differently in
their proposals--i.e., USF altered the pricing schedule to add sub-CLINs
for the ceiling and floor tile work, while ELC submitted prices for the
sub-CLINs as HUD revised them, and submitted a price for the overall O&M
CLIN that was higher than the sum of the prices for the separate
sub-CLINs.
As a preliminary matter, HUD*s conflicting directions on providing
separate prices for ceiling and floor tile work, without providing a
separate sub-CLIN for submitting those prices, created a patent ambiguity
in this solicitation. In situations where solicitations contain patent
ambiguities, an offeror has an affirmative obligation to seek
clarification prior to the first due date for submission of proposals
following introduction of the ambiguity into the solicitation. 4 C.F.R.
S: 21.2(a)(1) (2003); American Connecting Source d/b/a Connections,
B-276889, July 1, 1997, 97-2 CPD P: 1 at 3. The purpose of our timeliness
rule in this regard is to afford the parties an opportunity to resolve
ambiguities prior to the submission of offers, so that such provisions can
be remedied before offerors formulate their proposals. Gordon R. A.
Fishman, B-257634, Oct. 11, 1994, 94-2 CPD P: 133 at 3. Where a patent
ambiguity is not challenged prior to submission of proposals, we will
dismiss as untimely any subsequent protest assertion that is based on one
of the alternative interpretations as the only permissible
interpretation. Bank of Am., B-287608, B-287608.2, July 26, 2001, 2001
CPD P: 137 at 10.
To the extent that USF claims that the agency, in essence, was not
evaluating prices on a common basis in light of the different approaches
taken by USF and ELC, we disagree. With regard to USF*s approach, we
think the agency reasonably accepted the company*s altered pricing
schedule reflecting its attempt to separately price the ceiling and floor
tile work in accordance with the instructions provided in amendment 0006
to the solicitation.
With respect to ELC*s approach, we think the agency could just as
reasonably rely on ELC*s representation that all of the O&M costs not
separately priced are included in the overall O&M CLIN. In addition,
there is no evidence in this record suggesting that ELC failed to
recognize this matter--in fact, there is evidence that it did. ELC*s
price proposal contained a narrative paragraph reiterating its intent to
include in the overall O&M pricing CLIN all costs not separately
identified with sub-CLINs on the price schedule. We note that this is not
a blanket assertion covering the entire solicitation, as USF seems to
suggest, but an assurance tailored to the O&M CLIN, where the matter was
clearly raised by HUD*s instructions in amendment 0006 to the
solicitation. Given that both offerors took reasonable, affirmative steps
to make clear their pricing with respect to O&M services, and given the
failure of USF to raise this patently obvious issue prior to proceeding
with its reasonable, but not exclusively so, approach, we see no basis to
object to the agency*s actions here.
Evaluation of Past Performance
The third area of the evaluation challenged by USF is the assessment of
past performance. In this regard, USF raises numerous issues to support
its view that it should have received a more favorable past performance
assessment, and ELC should have received a less favorable one. These
include assertions that HUD improperly ignored favorable information about
USF*s performance of the incumbent contract, treated the two offerors
unequally in assessing past performance, wrongly considered ELC*s
performance under a contract not relevant to any of the facility
management services required here, and failed to give USF an opportunity
to respond to adverse past performance ratings. We have reviewed each of
these contentions and conclude that none of them provides a basis for
overturning this procurement. We will, however, provide examples of why
we disagree with USF*s contentions.
Before turning to specific arguments, a few additional facts regarding the
evaluation of past performance are needed here, as well as some
observations about the application of USF*s arguments to this
procurement. As indicated above, there was no separate evaluation factor
in this solicitation for past performance. Rather, past performance was
joined with corporate experience as a single subfactor under the
experience and qualifications evaluation factor. In addition, because
proposals were rated under each factor and subfactor, for each of the
eight services required here, the rating for this subfactor considered
significantly more information than just the offeror*s past performance.
Since, however, both offerors proposed to subcontract seven of the eight
services, and both offerors proposed to perform only the O&M services
themselves, we will limit this discussion to the rating given this
subfactor under the O&M services portion of the review. We thus note that
at the end of the initial evaluation, the TEP concluded that USF*s
proposal merited a rating of *good* under this subfactor, while ELC*s
proposal merited a rating of *very good.* Initial TEP Rep. at 11-12
(ELC), 52 (USF).
In reaching its conclusion about a difference between the two proposals
under this subfactor, the TEP noted that ELC*s proposal claimed to have
achieved significant cost savings on two identified contracts *by
improving the operations and functionality of the sites while reducing
maintenance, repair, and operations costs.* Id. at 12. The TEP then
concluded that ELC might be able to achieve similar cost savings for HUD.
Id. With respect to USF, the report noted that the company had been
satisfactorily providing O&M services at HUD for the past 5 years. The
report noted no special strengths or weaknesses about USF*s proposal in
this area. Id. at 52.
As indicated earlier, the final TEP report did not focus on the specific
ratings assigned by factor and subfactor, but on areas where the
evaluators perceived a basis for discriminating between these offerors.
In reading the report*s explanation of the differences between the USF and
ELC proposals in this area, we note that while both receive favorable
commentary, the evaluators seem particularly impressed with ELC*s
description of how it achieved favorable results, how it quantified those
results, and how it controlled costs for its customers. Final TEP Rep. at
27. In contrast, the TEP felt that USF provided only *generalized
statements about results achieved, did not provide specific details
describing how results were achieved, did not quantify results, did not
describe problems encountered, and did not describe corrective actions
taken to resolve problems.* Id. Given the TEP*s approach to the
evaluation, many of the protester*s contentions raise matters that shed
little light on whether these evaluation assessments were, or were not,
reasonable.
In this regard, USF raises multiple arguments about whether HUD considered
all of the quarterly performance reports generated over the 5-year life of
the incumbent contract, and considered other favorable information
available to the agency. These arguments include that HUD did not
consider certain quarterly reports that dated back to the first 2 years of
contract performance; that HUD did not consider certain recent quarterly
reports; and that HUD considered, but did not give USF an opportunity to
comment on, at least 2 quarterly reports that USF considers unfavorable.
USF also argues that HUD ignored favorable references and letters of
commendation regarding its past performance.
As an initial matter, we are not aware of any procedural requirement that
HUD establish that it reviewed each and every quarterly performance report
generated during USF*s incumbency in order to make a reasonable assessment
of USF*s past performance. We are also not aware of any requirement that
HUD show that it considered every favorable reference letter or comment
generated during that period. Instead, HUD responds that it evaluated
USF*s past performance, fully considered USF*s incumbency as a *material
benefit,* and recognized that USF*s knowledge about certain facets of the
HUD headquarters facility is *advantageous.* Final TEP Rep. at 26. In
short, USF*s contentions, even if true, are unlikely to rise to a showing
that the agency*s assessment of the protester*s past performance was
unreasonable.
We also think that the cases cited by USF in this area do not support its
claims. For example, USF contends that the favorable information that it
believes should have been reflected in the evaluation was *too close at
hand* to permit HUD not to include the information in its assessment. USF
is referring to our prior decision in International Bus. Sys., Inc.,
B‑275554, Mar. 3, 1997, 97-1 CPD P: 114 at 4, where we held that
*some information is 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.*
In International Bus. Sys., we reviewed a selection decision made by a
contracting officer who did not consider one of the two contract
references provided by the protester because the individual within the
agency responsible for providing feedback about the protester*s past
performance did not return the assessment form. Id. at 3-4. Not only was
the contracting officer located in the same agency as the individual who
failed to provide the needed information, but the contracting officer had
also managed the referenced contract wherein the protester provided the
same services sought under the protested procurement. In addition, the
record showed that the contracting officer had penned a letter to the SBA
only 4 months earlier describing the protester*s performance as
*exemplary.* Id. at 5.
We think withholding from an offeror any rating whatsoever on a contract
submitted for a past performance assessment, as the agency did in the
International Bus. Sys. protest, is a far cry from the situation here.
USF pointed to its prior performance of the HUD contract and received
favorable credit for it. The fact that USF can now identify distinct
pieces of information that may, or may not, have played a role in making a
determination about USF*s past performance does not, in and of itself,
render USF*s favorable rating unreasonable. Simply put, we have seen
nothing in the evaluation record here, or in any of the challenges raised
by USF, that leads us to conclude that the agency*s favorable evaluation
of past performance was unreasonable.
Improper Discussions
In its supplemental protest, filed after receipt of the agency report, USF
argues that the record shows that HUD improperly engaged in discussions
only with ELC after negotiations were closed, and after the offerors had
submitted their FPRs. The record confirms, and HUD concedes, that the
agency contacted ELC, but our review of the exchange leads us to conclude
that the agency*s communication was a request for clarification, not
discussions.
As indicated above, FPRs in this procurement were required to be submitted
not later than July 15, 2003. HUD explains that on September 4, the
contracting officer telephoned a representative of ELC and requested that
the company *verify its prices and confirm that ELC had used the correct
multiplier for CLIN 0002.* Contracting Officer*s Supp. Statement, at 1.
On September 5, the ELC representative sent an e‑mail asking the
contracting officer to clarify her request, but before receiving a
response, sent a second e-mail that attempted to respond to the
contracting officer*s request by explaining ELC*s pricing method. Id.
The contracting officer explained that the response did not answer her
question, and that she did not consider it. Id. Instead, the contracting
officer prepared a written confirmation of her oral request, which stated:
The purpose of this letter is to confirm in writing my oral request that
[ELC] verify its offered prices for the one-year contract term and each of
the four one-year option periods. In order to confirm the absence of any
mistake, I am specifically requesting that ELC confirm that it relied upon
the correct multiplier in calculating its prices for line items:
002AA [letter lists it by its CLINs for each of the five
years] 002AB [letter lists it by its CLINs for each of the five
years]
Please respond with either verification that the offered prices are
correct or an explanation of any pricing mistake and a request to correct
the pricing mistake.
Supp. AR, Exh. 4 (Letter from Contracting Officer to ELC, Sept. 5, 2003).
By e-mail provided later that same day, ELC confirmed the price in its FPR
and indicated that it had verified the multiplier used to generate those
prices. Supp. AR, Exh. 5. As a result, ELC did not request to correct a
mistake.
USF argues that the exchange here constitutes improper discussions with
only ELC after submission of FPRs under the rule established by our
decision in Priority One Servs., Inc., B-288836, B-288836.2, Dec. 17,
2001, 2002 CPD P: 79. According to USF, the agency was required to also
hold discussions with it, and advise it that its price was too high to be
in line for award. We disagree.
In Priority One we repeated our standard that *[t]he acid test for
deciding whether discussions have been held is whether it can be said that
an offeror was provided the opportunity to revise or modify its proposal.
Id. at 5 (citing Raytheon Co., B‑261959.3, Jan. 23, 1996, 96-1 CPD
P: 37 at 11). For the reasons set forth below, we do not agree that the
contracting officer*s request that ELC either verify its prices, or
request permission to correct a mistake, was an invitation to modify or
revise its proposal.
The process followed by the CO here appears squarely within the scope of
the process described by the Federal Acquisition Regulation (FAR) for
investigating whether an offeror*s proposal contains a mistake. See FAR
S: 15.306(b)(3)(i) (which refers contracting officers to additional
guidance at FAR S: 14.407, addressing mistakes in bids). In the event
that ELC had indicated the presence of a mistake in its proposal, FAR
S: 14.407 sets forth guidelines for contracting officers to use in
deciding whether correction of the claimed mistake is permissible. Since
this process must be followed, and since certain affirmative conclusions
must be reached before correction of a mistake is permitted, we do not
think the contracting officer*s request for verification here was an
invitation to modify or revise the proposal. See Jack Faucett Assocs.,
B‑254421.2, Feb. 18, 1994, 94-1 CPD P: 204 at 7-8; Peterson Bros.
Investments, B-254338, B-254338.2, Dec. 10, 1993, 93-2 CPD P: 312 at 6.
SSO*s Adoption of the Final TEP Report
As a final matter, USF argues that the SSO here failed to make an
independent judgment or analysis to support his selection decision because
he simply adopted the final report of the TEP with his signature, and did
not prepare his own selection document. In addition, USF argues that even
if the SSO is permitted to adopt the recommendation of the final TEP
report as his own decision, the selection decision is fatally flawed
because the final TEP report does not include a discussion of the panel*s
decision to accept, and base the evaluation on, ELC*s interim project
manager, and because there is no indication that the SSO was otherwise
aware of this matter.
With respect to USF*s first contention, we will not view an SSO*s
concurrence with the findings of those whose expertise he relies on as
evidence that the SSO has abdicated his responsibility to make independent
judgments. See Allied Tech. Group, Inc., B-271302, B‑271302.2, July
3, 1996, 96-2 CPD P: 4 at 10 (holding that the mere fact that the SSO
adopted language and findings made by his evaluators did not indicate that
he failed to exercise his independent judgment); see also Lear Siegler
Servs., Inc., B-280834, B-280834.2, Nov. 25, 1998, 98-2 CPD P: 136 at 5
(where selection authority indicated his concurrence with the findings and
recommendations of a contract award panel by marking an *X,* our Office
proceeded with review of the basis for the award panel*s recommendations
in the same manner as if the selection authority had prepared a separate
document). In this regard, we have long held that agency selection
officials have broad discretion in determining the manner and extent to
which they will make use of the technical and cost evaluation results in
making their determination. Juarez & Assocs., Inc., B‑265950.2,
Feb. 8, 1996, 96-1 CPD P: 152 at 3.
In addition, the SSO here provided a statement in response to the
protester*s assertion that he had failed to exercise independent
judgment. In that statement, the SSO explained that he participated in
this procurement from its outset to its conclusion: he attended
acquisition planning meetings, read and approved the source selection
plan, was familiar with the solicitation*s statement of work, read the
reports on the initial proposals of the service area advisory teams, read
the TEP*s initial and final reports, and agreed with the TEP*s assessment
that the ELC proposal represented the best value to the government. SSO*s
Statement, Dec. 15, 2003, at 2-3. Under these circumstances, we have no
basis to conclude that SSO here abdicated his responsibilities.
Finally, we turn to USF*s assertion that the SSO*s concurrence with the
award recommendation in the final TEP report must be overturned because
the final TEP report made no mention of the panel*s decision to accept,
and base the evaluation on, ELC*s interim project manager. In response to
this assertion, HUD explained that the TEP did not discuss this matter in
its final report because--once it received ELC*s assurance that its
proposed project manager would remain in his position until the transition
was complete, and until HUD and ELC mutually agreed on a replacement--it
considered the issue resolved. Supp. AR at 15.
In reviewing HUD*s response, we recognize--as we did in considering the
reasonableness of the agency*s approach to evaluating this issue--that
while we think it would have been preferable to provide a narrative
explanation of the TEP*s consideration of this issue in its final report,
the decision to do otherwise does not vitiate the report*s selection
recommendation. As explained above, the approach of the final TEP report
was not to revisit each and every topic raised during the evaluation, but
to focus instead on the bases for discriminating between these proposals.
Since the report did this, and since the protester has not shown that any
of the conclusions about the relative merits of these proposals were
unreasonable, we see nothing unreasonable about the recommended selection
decision, or the SSO*s adoption of it.
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] For the sake of brevity, we cite here, and throughout the decision,
only the O&M CLIN for the base period, rather than include the citations
for the CLINs covering all of the option periods.