TITLE:  Computer Information Specialist, Inc., B-293049; B-293049.2, January 23, 2004
BNUMBER:  B-293049; B-293049.2
DATE:  January 23, 2004
**********************************************************************
Computer Information Specialist, Inc., B-293049; B-293049.2, January 23, 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:   Computer Information Specialist, Inc.
    
File:            B-293049; B-293049.2
    
Date:              January 23, 2004
    
Kevin P. Mullen, Esq., and David E. Fletcher, Esq., Piper, Rudnick, for
the protester.
Mike Colvin, Department of Health and Human Services, for the agency.
Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Protest that agency misevaluated proposals is sustained where record shows
that agency*s evaluation conclusions with respect to protester*s proposal
were either unrelated to the evaluation criteria or without a factual
basis, and agency failed to note two deficiencies in awardee*s proposal. 
DECISION
    
Computer Information Specialist, Inc. (CIS) protests the award of a
contract to Open Technology Group, Inc. (OTG) under request for proposals
(RFP) No. NLM-03-101/SAN, issued by National Library of Medicine, National
Institutes of Health (NIH) to acquire telecommunications support services
at the agency*s Bethesda, Maryland campus. CIS maintains that the agency
misevaluated proposals and made an unreasonable source selection decision.
    

   We sustain the protest.
    
The solicitation contemplated the award of a requirements contract with
fixed hourly rates to perform telecommunications support services for a
base year, with four 1-year options.  The RFP advised that the agency
intended to make award on a *best value* basis, with several non-price
factors, collectively, being significantly more important than price.  RFP
at 66.  The non-price criteria (and their point values, out of 100
possible points) were:  qualifications and availability of personnel (30
points), past performance (30 points), technical competence (20 points),
and management approach (20 points).  RFP at 66-67.  For pricing purposes,
offerors were to submit fully-loaded, fixed hourly rates for various labor
categories, RFP at 62; evaluated prices were derived by multiplying the
proposed hourly rates by estimated quantities stated in the solicitation. 
RFP at 51.
    
The agency received numerous proposals and, after an initial evaluation,
established a competitive range of four firms, including the protester and
the awardee.  Agency Report (AR), exh. 6, at 1-3.  The agency conducted
discussions with the competitive range offerors and solicited and obtained
revised proposals.  The final evaluation results were as follows:
    

   +------------------------------------------------------------------------+
|Offeror       |Technical Score    |Estimated Price    |Acceptability    |
|--------------+-------------------+-------------------+-----------------|
|OTG           |[deleted]          |[deleted]          |[deleted]        |
|--------------+-------------------+-------------------+-----------------|
|Offeror A     |[deleted]          |[deleted]          |[deleted]        |
|--------------+-------------------+-------------------+-----------------|
|Offeror B     |[deleted]          |[deleted]          |[deleted]        |
|--------------+-------------------+-------------------+-----------------|
|CIS           |[deleted]          |[deleted]          |[deleted]        |
+------------------------------------------------------------------------+

    
AR, exh. 18 at 2.  On the basis of these evaluation results, the agency
made award to OTG, the firm submitting what the agency deemed the
highest-ranked, lowest-priced proposal.  Following a debriefing, CIS filed
this protest in our Office, asserting that the agency misevaluated both
its and the awardee*s proposals. 
    
In reviewing protests against an agency*s evaluation of proposals, we do
not reevaluate the proposals.  Rather, we consider only whether the
evaluation was reasonable and consistent with the terms of the
solicitation and applicable statutes and regulations.  CWIS, LLC,
B-287521, July 2, 2001, 2001 CPD P: 119 at 2.  On the basis of the record
here, we find the agency*s evaluation conclusions with respect to both
proposals unreasonable.
    
CIS
    
The evaluation record is limited, consisting solely of narrative materials
prepared by the evaluators.  Of five evaluators, four prepared only
cursory narrative comments to support their scoring of the initial or
revised CIS proposals.  The comments that were prepared during the initial
evaluation criticized the proposal principally for not offering personnel
that met all of the solicitation*s minimum personnel experience
requirements.[1]  This was brought to CIS*s attention during discussions,
and CIS revised its proposal in this area.  CIS asserts that it cured this
deficiency, and that it therefore was unreasonable for the final
evaluation to reflect a downgrading of the proposal in the area of
personnel qualifications and availability.
We agree with CIS.  In evaluating the revised CIS proposal, four of the
five evaluators again prepared only cursory narrative materials.  In terms
of scoring, three of these four evaluators raised CIS*s score by [deleted]
points; the agency*s final consensus technical evaluation report states
that two of the three evaluators increased their scores based on their
conclusion that the CIS proposal now met the personnel experience
requirements, and that the third increased his score based on CIS*s
providing *additional information* in its revised proposal.  AR, exh. 7,
at 5-6.  Among these four evaluators, two assigned a final overall
technical score of [deleted] points and two assigned a score of [deleted]
points.  Id. at 7. 
    
The fifth evaluator scored CIS*s revised proposal dramatically
differently, reducing CIS*s score from [deleted] total points initially to
[deleted] points on reevaluation.  Unlike the other four evaluators, he
prepared extensive narrative materials during his rescoring of the
proposal, AR, exh. 4, at 25-26, and his unedited comments were ultimately
incorporated into the final consensus technical evaluation report, along
with a summary of the other evaluators* limited comments.  AR, exh. 7,
at 5.  The agency*s source selection decision document, AR, exh. 18, does
not reflect any critical or independent analysis or evaluation of the
proposals by the source selection official (SSO); instead, it relies
entirely upon the numeric scores for purposes of the agency*s source
selection decision.  This being the case, the comments of the fifth
evaluator regarding deficiencies in CIS*s proposal represent the sole
support in the evaluation record for the relatively low ranking of CIS*s
revised proposal.  This is problematic for the agency because we find that
the conclusions expressed by the fifth evaluator are unreasonable.
    
The first paragraph of the fifth evaluator*s comments states as follows:
    
I was dismayed and unfavorably impressed with both the tone and the
substance of the proposer*s response for answers to technical questions
and for additional information.  I was shocked with the pedantry and the
profound lack of intellect actually written in the response.  I was
disappointed with the visible disregard for manners and with the actual
lack of respect written into and appearing in the lines of the response. 
In conscience I cannot recommend that the government take this proposer or
the material presented as a serious attempt to gain a contract.  And I
certainly would not wish upon any government representative the
responsibility of confronting or dealing with any proposer who allows or
perhaps promotes such attitudes or such behavior.
AR, exh.7, at 5. 
    
It is axiomatic that agencies are required to evaluate proposals based
solely on the evaluation factors identified in the solicitation, 41 U.S.C.
S: 253b(a) (2000), Federal Acquisition Regulation S: 15.305, and that they
must adequately document the reasons for their evaluation conclusions. 
Future-Tec Mgmt. Sys., Inc.; Computer & Hi-Tech Mgmt., Inc., B-283793.5,
B-283793.6, Mar. 20, 2000, 2000 CPD P: 59 at 7.  The evaluation factors in
the RFP here did not provide for downgrading a proposal based on the tone
of the proposal or the offeror*s manners, attitudes or behavior, and there
is nothing in the minimal evaluation record identifying the criterion
applied or otherwise explaining the basis for the evaluator*s statements. 
Moreover, having read the proposal, we are at a loss to understand the
basis for the evaluator*s observations.  For example, we are unable to
identify any area or aspect of the proposal that could reasonably be said
to demonstrate a *lack of respect* (and, since the evaluation apparently
was based solely on the written submissions, there would appear to be no
other basis for the evaluator*s views).  We conclude that this portion of
the fifth evaluator*s comments did not provide a reasonable basis for
downgrading CIS*s proposal.
    
The comments next observe that, on page three of the revised proposal, CIS
offered [deleted] in task area 2 (task order management) two individuals
who do not meet the RFP*s experience requirements; the comments go on to
reference page 18 of the proposal in support of the observation that these
two individuals are being offered in task area 2.  A review of the
proposal language, however,  establishes that this observation is simply
incorrect.  In this regard, page 3 of CIS*s revised proposal--responding
to the agency*s discussion question relating to the experience of its
proposed personnel-- specifically states [deleted].  AR, exh. 15, at 2. 
These two individuals are mentioned again on page 18, but only for
purposes of describing the current--as opposed to the
proposed‑‑team performing the contract (CIS is the incumbent
for this requirement).  We conclude that this aspect of the evaluation
record does not reflect the contents of CIS*s proposal, and thus did not
provide a reasonable basis for downgrading the proposal.
    
The next portion of the narrative observes that CIS*s past performance is
limited in terms of overall experience, years of experience and number of
contracts requiring similar performance.  This observation is made in
conclusory terms, with no supporting detail from the firm*s past
performance information.  The record shows that CIS initially cited two
prior contracts for purposes of demonstrating its past performance, one of
which was the prior contract for this requirement.  During discussions,
the agency asked for additional past performance information, and CIS
provided information about three additional contracts.  In each instance,
CIS organized the information by describing the work performed in terms of
its relevance to the seven task areas outlined in the RFP, and included in
each of the listings information relating to each of the seven task
areas.  CIS*s revised proposal thus included five past performance
references spanning the timeframe 1996 to the present (approximately 8
years).  Since the RFP requested only a list of the last two contracts
performed during the past 3 years, as well as those currently being
performed, RFP at 56-57, CIS appears to have presented information
relating to an adequate number of contracts that appear relevant to the
requirement being solicited.  In the absence of some explanation for the
fifth evaluator*s conclusory observations indicating why he found
otherwise, we find no reasonable basis for the downgrading of CIS*s
proposal in this area.[2]
    
The balance of the narrative is devoted to criticism of proposed
enhancements offered by CIS in terms of [deleted].  The narrative
criticizes these proposed enhancements for three principal reasons:  the
enhancements were not provided under the firm*s predecessor contract; any
efficiencies achieved will benefit the contractor*s employees, as opposed
to government employees; and the proposal does not state that these
enhancements currently exist or explain when they will be implemented
during contract performance.  The narrative in this area concludes by
stating: *Therefore, all of that information is no more than a pipe dream,
mere vapor to be disbursed with one*s next breath.*  AR, exh. 7, at 5. 
    
Again, these statements are not supported by the record.  First, to the
extent that the evaluation criticizes CIS for not providing these
enhancements under the predecessor contract, there is nothing in the
record showing that CIS offered the same enhancements in its previous
proposal, or that they were otherwise required under the earlier
contract. 
    
Similarly, nothing in the proposal suggests that these enhancements will
not actually be provided at the commencement of performance.  In this
regard, the proposed enhancements are based on CIS*s providing [deleted]. 
CIS*s proposal addresses the enhancements as follows:
    
[deleted]
AR, exh. 13, at 5.  Elsewhere, the proposal states:
    
[deleted]
AR, exh. 13, at 132.  As with the areas discussed above, absent some
explanation in the record for the fifth evaluator*s conclusions regarding
CIS*s proposed enhancements, those conclusions are unsupported, and
therefore unreasonable.
    
OTG
    
CIS asserts that the agency also misevaluated the OTG proposal.  According
to the protester, the agency improperly accepted the proposal for award
notwithstanding that it failed to meet two solicitation requirements:  the
requirement to provide letters of commitment for all of its proposed
personnel, and the requirement to provide a security program plan. 
    
We agree with CIS.  Regarding letters of commitment, the RFP provided: 
*For all proposed personnel who are not currently members of the offeror*s
staff, a letter of commitment or other evidence of availability is
required.  A resume does not meet this requirement.*  RFP at 59.  OTG
proposed 14 individuals not currently employed by OTG.  AR, exh. 8, at
25-52.  However, OTG presented only 10 letters of commitment for these 14
individuals; OTG did not submit letters of commitment for the other 4
proposed employees.
    
The agency asserts that it relied on other language in the OTG proposal in
concluding that OTG had satisfied the requirement for evidence of
availability.  Specifically, the agency cites the following language: 
*Finally we have requested and received letters of intent from our
proposed staff (see Attachment C).*  AR, exh. 8, at 2.  This
representation did not satisfy the requirement.  The statement itself is
no more than a self-serving representation, and in relying on it the
agency ignored the fact that Attachment C to the OTG proposal includes
only the 10 letters of commitment referenced above; Attachment C does not
include any evidence of the availability of the other 4 proposed
employees.  Under these circumstances, we find that OTG failed to meet
this solicitation requirement.[3]
    
As noted, CIS also asserts that the OTG proposal did not include an
adequate security program plan.  The agency responds that CIS*s assertion
in this respect is simply disagreement with the agency*s evaluation
conclusion, asserting that it reviewed the information in the OTG proposal
and, in its discretion, concluded that it satisfied the security program
plan requirement. 
    
The evaluation in this area was unreasonable.  The RFP required offerors
to submit a detailed outline (commensurate with the size and complexity of
the statement of work) of its present and proposed information technology
systems security program, demonstrating compliance with the statement of
work*s security requirements, as well as various statutory and regulatory
provisions relating to computer security.  RFP at 61.  The RFP cautioned
offerors as follows:

   Proposals which merely offer to conduct a program in accordance with the
requirements of the Government*s scope of work will not be eligible for
award.  The offeror must submit an explanation of the proposed technical
approach in conjunction with the tasks to be performed in achieving the
project objectives.
RFP at 59. 
    
The OTG proposal fails to provide the level of detail required by the
solicitation.  The firm*s proposed security program is outlined in a
half-page portion of its proposal that is comprised of four short
paragraphs.  The first paragraph states that OTG and its subcontractor
understand that their personnel may require access to sensitive data and
systems, and that access to these systems and data may require their
personnel to submit to and pass *various levels of investigation before
employment with the government.*  AR, exh. 8, at 64.  The next
paragraph--which includes the language the agency states it relied upon in
finding the OTG proposal acceptable--states in its entirety:
    
The OTG/Verizon Team agrees to comply with the AIS (Automated Information
Systems) security requirements set forth in the statement of work upon
receipt of the government furnished DHHS Automated Information Systems
Security Program (AISSP) Handbook.  OTG further agrees to include
compliance to these security guidelines in any subcontract awarded
pursuant to the Prime contract.
Id.  The next paragraph of the proposal reiterates that OTG understands
that its employees working on the contract will be subject to various
background checks, and the final paragraph states that OTG agrees to
adhere to all established security training and awareness requirements,
that its employees will maintain the integrity, confidentiality,
authenticity, availability and nonrepudiation of data processed,
transmitted or stored on systems in use by NIH, and that it agrees to be
monitored to ensure compliance with all security requirements.  Id.  (OTG,
in its revised proposal, also stated that it understood that its employees
would be required to complete online NIH computer security awareness
training, and also that they will be required to review and become
familiar with any security information supplied by the government during
employee orientation.  AR, exh. 10, at 16.)
    
This language does not set forth a technical approach or an explanation of
such an approach, as expressly required by the RFP; it is entirely lacking
in any detail relating to OTG*s information technology security program,
and fails to demonstrate or describe how OTG plans to comply with the
various security requirements (statutes, regulations and agency guidance)
called out in the RFP.  Rather, the proposal does little more than agree
to conduct a security program in accordance with the terms of the
statement of work; this is precisely the kind of blanket statement that
the RFP cautioned offerors against.  Accordingly, we find that there was
no reasonable basis for the agency*s evaluation of the OTG proposal in
this area.
    
In view of the foregoing, we conclude that the agency misevaluated the
proposals of both CIS and OTG.  We also find that the agency*s
misevaluation was prejudicial to CIS, since there is a reasonable
possibility that, but for the agency*s errors, CIS might have been
selected for award notwithstanding its higher price.  See
McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD P: 54 at 3; see also
Statistica v. Christopher, 102 F.3d 1,577, 1,581 (Fed. Cir. 1996).  We
therefore sustain CIS*s protest. [4]
    
RECOMMENDATION
    
We recommend that the agency at a minimum reevaluate the proposals of the
competitive range offerors and make a new source selection decision. 
However, in light of our finding that the OTG proposal may have been
technically unacceptable, the agency also may elect to reopen discussions
and obtain revised proposals.  Should the agency find that another offeror
is properly in line for award, we recommend that the agency terminate the
contract awarded to OTG for the convenience of the government and make
award to the firm found to be in line for award.[5]  We further recommend
that CIS be reimbursed the costs associated with filing and pursuing its
protest, including reasonable attorneys* fees.  4 C.F.R.
S: 21.8(d)(1) (2003).  CIS*s certified claim for costs, detailing the time
spent and the costs incurred, must be submitted to the agency within 60
days of receiving of our decision.  4 C.F.R. S: 21.8(f)(1).
    
The protest is sustained.
    
Anthony H. Gamboa
General Counsel
    
    

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

   [1] The RFP divided the contract requirements into seven task areas, six
of which included experience requirements, expressed in terms of years of
experience, for the various personnel categories.  For example, under task
area 1, program manager, the proposed program manager was required to have
at least 5 years of relevant experience.  RFP, Statement of Work (SOW), at
4.
[2] This observation is all the more confusing given that, during the
initial proposal evaluation, the fifth evaluator identified CIS*s past
performance as a strength and stated:  *Good experience, especially with
NIH.*  AR, exh. 4, Initial Evaluation Worksheet of the Fifth Evaluator.
[3] The agency, in a supplemental report, asserts, without supporting
evidence, that the protester failed to document the availability of three
of its proposed employees.  However, the record shows that all three are
current employees of CIS; there thus was no requirement to furnish
evidence of availability for these individuals.  We note in any event that
CIS*s proposal included a signed letter from each of its proposed
employees--including the three employees mentioned by the agency--in which
the employees commit to their continued availability to perform the
requirement in the event that CIS is awarded the contract.  AR, exh. 14,
attach. 8.
[4] CIS also alleges that OTG and its subcontractor Verizon have an
organizational conflict of interest because of prior or current
contractual relationships that the two concerns have with the agency. 
This aspect of the protest is academic in light of our recommendation
(discussed below) that the agency reevaluate proposals and make a new
source selection decision.
[5] The agency executed a determination and finding to continue
performance of the OTG contract notwithstanding CIS*s protest on grounds
that urgent and compelling circumstances significantly affecting the
interests of the government would not permit it to suspend performance of
the contract.  See 31 U.S.C. S: 3553(c)(2) (2000).  Nonetheless, because
of the ongoing nature of the requirement, we believe the agency can
implement our recommendation and continue to meet its need for these
services without disruption.