TITLE: Base Technologies, Inc., B-293061.2; B-293061.3, January 28, 2004
BNUMBER: B-293061.2; B-293061.3
DATE: January 28, 2004
**********************************************************************
Base Technologies, Inc., B-293061.2; B-293061.3, January 28, 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: Base Technologies, Inc.
File: B-293061.2; B-293061.3
Date: January 28, 2004
L. James D*Agostino, Esq., Richard L. Moorhouse, Esq., Leigh T. Hansson,
Esq., and Natalia W. Geren, Esq., Reed Smith, for the protester.
Michael D. Harbart, Esq., Department of Treasury, for the agency.
Sharon L. Larkin, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Agency*s consideration of key personnel*s lack of law enforcement, and
limited years of, experience was proper, where these matters were
reasonably encompassed within the solicitation*s evaluation criteria and
related to the solicitation*s requirements.
2. During discussions, an offeror need not be told of all weaknesses that
would enable it to achieve maximum evaluation score.
3. Agency may consider the references of one joint venture partner in
evaluating a joint venture offeror*s past performance where they are
reasonably predictive of performance of the joint venture entity.
4. Agency*s scoring of past performance was reasonable and consistent
with the solicitation*s evaluation criteria; protester*s argument that
agency failed to follow scoring scheme set forth in agency*s internal
evaluation plan does not provide a valid basis for protest.
DECISION
Base Technologies, Inc. (BTI) protests the award of a contract to
Lifecare-Advanta Joint Venture (LAJV) under request for proposals (RFP)
No. BPD-03-R-0010, issued by the Bureau of Public Debt, Department of
Treasury, for financial crimes investigative services. BTI contends the
agency conducted a flawed evaluation of both offerors* proposals, and held
inadequate discussions with BTI.
We deny the protests.
The Financial Crimes Investigative Network (FinCEN) provides intelligence
and analytical support to the international, federal, state, and local law
enforcement and regulatory communities. It provides analytical case
reports to investigators using state-of-the-art technology, in-house
analysts, and various data sources to uncover potential criminal
relationships. The FinCEN has a continuing requirement for on‑site
support related to these investigative services, which BTI currently
provides under a contract set to expire shortly.
The RFP, issued as a small business set-aside, sought a contractor to
provide on-site support for the FinCEN in five program areas: case
management, the USA Patriot Act, the commercial database program, the
gateway program, and the pro-active targeting program. As stated in the
RFP, case management support involves researching three classes of
information--commercially available data (e.g., ChoicePoint, Lexis-Nexis,
and Dun & Bradstreet databases), financial information (e.g., Bank Secrecy
Act reports and Department of Treasury databases), and law enforcement
information (e.g., FinCEN past cases, and databases from the Departments
of Treasury, Justice, and Defense)--and involves such tasks as mail
processing and telephone coverage, management of case information, and
target information processing. USA Patriot Act support requires services
related to an information-sharing service between law enforcement and
financial and regulatory communities with respect to the investigation of
financial crimes, money laundering, and terrorist activities, and includes
such tasks as research (which was noted in the RFP as the *highest
priority* to the FinCEN and the agencies supported by the FinCEN), case
opening and closing, maintenance of financial institutions* points of
contact and e-mail address logs, returning results to the requestor, and
archiving cases. Commercial database system and gateway system support
requires answering requests for user identifications and passwords,
maintaining logs and files of user access accounts, conducting database
searches, and responding to requests concerning the gateway process.
Pro-active targeting program support involves using artificial
intelligence technology to locate unusual or questionable financial
activity in various reports and financial records, and requires the
contractor to conduct research, organize data, and process the results in
the reports. RFP S: C.2.
The RFP contemplated the award of a *labor-hour, performance-based
contract* for a base year with four 1-year options, with a minimum value
of $1,000 and a maximum value of $20 million. RFP S:S: B.3, B.4, F.2.
The RFP provided that award would be made to the offeror whose proposal
presented the *best overall value* to the government, considering past
performance, technical merit, and price. Technical merit was said to be
more important than past performance, and technical merit and past
performance combined were said to be approximately equal to price. The
technical merit factor included five subfactors, listed in descending
order of importance: infrastructure, key personnel, hiring and retention
plan, transition and succession plan, and sample reports. RFP S:S: M.2,
M.5.
For the infrastructure subfactor, the RFP provided that the agency would
evaluate *[t]he Offeror*s ability and infrastructure to manage the
requirements of this contract and deliver the services described in the
performance work statement (Case Management, USA PATRIOT Act, Gateway,
Commercial Database, and Pro-Active Targeting) . . . within sixty days of
award.* This subfactor also addressed requirements for security
clearances, stating that
[t]he Government expects that the key personnel will start working on the
contract as soon as their clearances are granted or on the effective date
of award, whichever occurs later. The Contractor shall be able to provide
at least 25% [of] the staff (excluding key personnel), with the
appropriate adjudicated backgrounds within 15 business days after the
effective date of the contract, 50% within 30 days, 75% within 45 days,
and 90-100% within 60 days.
RFP amend. 0003, S: M.5.b(1).
For the key personnel subfactor, the RFP provided that the agency would
consider *[t]he qualifications of the Offeror*s key employees (defined at
[section] H.3), which also includes their current security level
clearance.*[2] RFP amend. 0002, S: M.5.b(2).
The RFP specified that past performance would be evaluated for performance
on *similar products or services . . . focus[ing] on information that
demonstrates quality of performance relative to the size and complexity of
the procurement under consideration.* The RFP further stated that *[a]n
offeror with no past performance information will receive a neutral rating
(i.e., the rating will not add to or detract from its rating).* RFP S:
M.5.a.
The RFP provided offerors with the expected staffing levels and the
estimated annual hours per labor category, which offerors were to use in
developing their evaluated prices. The RFP stated that price would be
evaluated, for the base and option years, by multiplying the estimated
number of hours per labor category (provided in the RFP) by the proposed
hourly rates (provided by the offerors), and totaling these products to
calculate the offeror*s annual evaluated prices.
Six proposals were submitted in response to the solicitation. Three
proposals, including BTI*s and LAJV*s, were found to be in the competitive
range and discussions were conducted with these offerors.
According to BTI, during discussions, BTI was informed of weaknesses in
the qualifications of four of its key personnel: that one lacked law
enforcement experience, one was not *management material,* and two others
lacked the *capability* to perform their positions.[3] Hearing Transcript
(Tr.) at 33-38. The record shows that BTI was also informed of weaknesses
with its transition and succession plan, and was encouraged to reduce its
price. BTI was also advised of adverse past performance concerning three
of its contracts, including its incumbent contract.
In its final proposal revision (FPR), BTI replaced one of its key
personnel, but retained the other three, asserting that their
qualifications were compliant with the RFP requirements. BTI also
affirmed its belief that its transition and succession plan satisfied the
RFP requirements, although it did not provide the additional detail
requested by the agency, and stated that it would not be lowering its
price. BTI explained its performance under the three prior contracts and
objected to the inclusion of two of the negative references, including a
recent incumbent contract reference.
During discussions, LAJV was informed of weaknesses in its transition and
succession plan, asked to explain how it would achieve the necessary
security clearances for its employees, and encouraged to reduce its
price. LAJV specifically addressed these concerns in its FPR and also
reduced its price.
The final evaluation scores for both offerors were as follows:[4]
+------------------------------------------------------------------------+
| |BTI |LAJV |
|------------------------------------------+--------------+--------------|
|Technical Merit | | |
|------------------------------------------+--------------+--------------|
| |Infrastructure (35 pts.) |35 |35 |
| |---------------------------------------+--------------+--------------|
| |Key Personnel (30 pts.)[5] |20 |20 |
| |---------------------------------------+--------------+--------------|
| |Hiring & Retention Plan (25 pts.) |25 |25 |
| |---------------------------------------+--------------+--------------|
| |Transition & Succession Plan (20 pts.) |10 |20 |
| |---------------------------------------+--------------+--------------|
| |Report Samples (15 pts.) |15 |15 |
|------------------------------------------+--------------+--------------|
|Past Performance | | |
|------------------------------------------+--------------+--------------|
| |References (75 pts.)[6] |72 |75 |
| |---------------------------------------+--------------+--------------|
| |Relevance (25 pts.)[7] |25 |15 |
|------------------------------------------+--------------+--------------|
|Total Score (technical + past performance)|202 |205 |
|------------------------------------------+--------------+--------------|
|Price |$15,854,126.20|$15,009,062.20|
+------------------------------------------------------------------------+
AR, Tab 10, Recommendation for Award, at 6-7.
The agency found that BTI*s proposal warranted only 20 points under the
key personnel subfactor, because *[o]ne supervisor has little management
experience or training* and *[m]any of the proposed key personnel have a
small amount of law enforcement, regulatory, or financial knowledge and
experience.* Id. at 2. The agency noted three specific examples of key
personnel that lacked experience--a case management night supervisor (who
assertedly lacked law enforcement experience) and two senior data
retrieval specialists (who each had less than 1 year of experience
performing this function)--only one of which was mentioned during
discussions. Id. at 3. The agency also noted that the four individuals
mentioned during discussions were *unacceptable for the proposed key
personnel positions* due to performance problems under the incumbent
contract, but that this was *not a factor in the evaluation.* Id. at 2.
Under the transition and succession plan subfactor, BTI*s proposal
received less than full points because its plan was considered *weak and
sketchy* and BTI did not provide additional detail in its FPR, even though
these concerns were raised during discussions. Id. at 3.
With regard to past performance, the agency gave BTI*s proposal full
points under the relevance subfactor based solely on its incumbent
contract. Id. at 1; Tr. at 211. BTI*s 72 out of 75-point score under the
references subfactor did not include consideration of its incumbent
contract, since the report on BTI*s performance under this contract had
not been finalized and BTI objected to the inclusion of a negative
assessment of its performance given by the most recent contracting
officer*s technical representative (COTR). Instead, BTI*s reference
scores were based on two other references provided by BTI, and two
references obtained from the Contractor Performance System.[8] AR, Tab
10, Recommendation for Award, at 1‑2.
LAJV*s proposal received maximum scores under the infrastructure, hiring
and retention plan, transition and succession plan,[9] and report sample
subfactors, but received only 20 points under the key personnel subfactor
because, as the agency noted, not all of LAJV*s key personnel had the
required security clearances or experience. The agency noted that
although LAJV made *improvements [in its FPR in response to discussions]
related to the number of personnel with security clearances and indicated
it anticipates hiring some personnel from the current contract with
existing security clearances,* some of its key personnel still lacked
*extensive experience.* Id. at 5-6.
With regard to past performance, the agency noted LAJV had no past
performance as a newly formed joint venture, but evaluated the contracts
determined relevant of one of the partners. AR, Tab 15, LAJV Technical
Evaluation Summary Score Sheet, at 3. The agency gave LAJV less than the
maximum points (15 of 25 points) under the relevance subfactor because
*not all of the referenced contracts had work similar to [this]
requirement.* However, the agency gave LAJV the maximum 75-point score
under the references subfactor because the references rated LAJV*s
performance as *superior* in each of the five elements assessed. AR, Tab
10, Recommendation for Award, at 5.
Based upon LAJV*s higher overall score (205 points as compared to BTI*s
202 points) and lower evaluated price, the agency determined that LAJV*s
proposal provided the best overall value and selected LAJV for award.
These protests followed.
BTI challenges the evaluation of both its and LAJV*s proposals under the
technical merit evaluation factor, arguing that LAJV*s score should have
been lower, and its score should have been higher under certain technical
merit subfactors. In reviewing protests against allegedly improper
evaluations and source selection decisions, it is not our role to
reevaluate proposals. Rather, our Office examines the record to determine
whether the agency*s judgment was reasonable and in accord with the RFP
criteria and applicable procurement statutes and regulations. Abt
Assocs., Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD P: 223 at 4. A
protester*s mere disagreement with the agency*s judgment does not
establish that an evaluation was unreasonable. UNICCO Gov*t Servs., Inc.,
B- 277658, Nov. 7, 1997, 97-2 CPD P: 134 at 7.
BTI first argues that LAJV*s proposal should have received a lower
technical score because LAJV is a new joint venture, with no Dun &
Bradstreet rating or corporate experience. Although the protester does
not point to which subfactor LAJV*s proposal should have been downgraded
under in this regard, the corporate infrastructure subfactor appears to be
the only relevant subfactor under which this information could have been
assessed. However, the record shows that, under this subfactor, the
agency recognized that LAJV proposed a corporate infrastructure and
staffing plan sufficient to begin delivering services within 60 days of
contract award, as contemplated by this evaluation subfactor (quoted
above). AR, Tab 15, LAJV Technical Evaluation Summary Score Sheet, at 4.
Based on our review, we find the agency*s judgment was reasonable.
BTI also contends that LAJV*s proposal should have received a lower
technical score under the infrastructure and key personnel subfactors
because not all of its key personnel would have security clearances at the
start of the contract.[10] However, the RFP did not require that all of
the key personnel have security clearances at the start of the contract;
rather, the RFP not only contemplated that key personnel might not have
clearances until after contract award, but actually provided, under the
infrastructure subfactor, for performance by the key personnel to begin
either the effective date of award or when security clearances were
obtained, whichever is later. As the agency was satisfied with LAJV*s
proposed plan to obtain security clearances in a timely fashion, it did
not downgrade LAJV*s proposal under this subfactor. However, under the
key personnel subfactor, where the agency evaluated the current status of
the security clearances of key personnel, LAJV*s proposal was assessed a
weakness and received a lower score because not all of LAJV*s key
personnel currently possessed these clearances. Based on our review, we
find this evaluation unobjectionable, as it was reasonable and consistent
with the RFP*s evaluation criteria.
BTI next contends that its proposal was improperly downgraded under the
key personnel subfactor because not all of its key personnel had law
enforcement or years of experience. BTI asserts that these experience
requirements constituted impermissible unstated evaluation criteria. We
disagree.
In evaluating a proposal, an agency properly may take into account
specific, albeit not expressly identified, matters that are logically
encompassed by or related to the stated evaluation criteria. North Am.
Military Housing, LLC, B-289604, Mar. 20, 2002, 2002 CPD P: 69 at 5.
Here, the key personnel subfactor stated that the *qualifications* of key
personnel would be qualitatively evaluated. Given that an individual*s
experience is part of his or her qualifications, we believe that under
this subfactor the agency could reasonably consider whether key personnel
have relevant experience (in this case law enforcement experience) as well
as the years of experience of these individuals. In this regard, we note
that this experience is logically related to the requirements of the RFP,
which recognizes that the FinCEN*s mission is to provide analytical and
intelligence support to law enforcement and regulatory communities, and
requires the contractor to provide support for this mission, including
investigative research in various law enforcement, financial, and
regulatory databases to uncover potential criminal relationships. Thus,
we find that the agency could properly consider the contractor*s proposed
key personnel*s law enforcement and years of experience in its evaluation
under this subfactor.[11]
BTI nevertheless complains that the agency failed to hold meaningful
discussions with it concerning the lack of law enforcement and years of
experience of its key personnel. Although BTI acknowledges that law
enforcement and years of experience were discussed in the context of four
of its key personnel, it complains that the agency failed to raise these
concerns with regard to any of its other personnel, and that it was misled
as to the agency*s concerns and requirements. Protester*s Hearing exh. 5;
Tr. at 34, 38, 54-56.
While discussions must address at least deficiencies and significant
weaknesses identified in proposals, the scope and extent of discussions
are largely a matter of the contracting officer*s judgment. Federal
Acquisition Regulation (FAR) S: 15.306(d)(3); Northrop Grumman Info.
Tech., Inc., B-290080 et al., June 10, 2002, 2002 CPD P: 136 at 6. In
this regard, we review the adequacy of discussions to ensure that agencies
point out weaknesses that, unless corrected, would prevent an offeror from
having a reasonable chance for award. Northrop Grumman Info. Tech., Inc.,
supra. An agency is not required to afford offerors all-encompassing
discussions, or to discuss every aspect of a proposal that receives less
than the maximum score, and it is not required to advise an offeror of a
weakness that is not considered significant, even if the weakness
subsequently becomes a determinative factor in choosing between two
closely ranked proposals. Hines Chicago Investments, LLC, B-292984, Dec.
17, 2003, 2003 CPD P: __ at 3-4.
Here, even assuming that the agency did not reasonably apprise BTI during
discussions that its proposal would be downgraded if the proposed
personnel did not have law enforcement or extensive years of experience,
[12] this weakness related only to BTI*s ability to achieve a maximum
score under this subfactor, and did not prevent BTI from having a
reasonable chance for award. Thus, discussions were not required to be
conducted with BTI on this point.[13]
Additionally, we find no evidence in the record that BTI was misled by the
discussions as to the agency*s concerns or requirements. To the contrary,
according to BTI, it specifically informed the agency during discussions
that it disagreed with the agency that law enforcement experience was
required by the RFP and discussed with the agency the years of experience
of some its personnel. Tr. at 38, 55; Protester*s Hearing exh. 5; BTI*s
Post-Hearing Comments at 14-15.
BTI also complains that it was not *adequately advise[d]* during
discussions about weaknesses in its transition and succession plan arising
out of a lack of detail. Protest at 9. However, BTI does not deny that
it was advised during discussions that its succession plan was *weak* or
that it was requested to provide more detail. Indeed, BTI claims in its
FPR that it reviewed its submitted succession plan (which consists of less
than one page of text) and determined it to be compliant with the
requirement of the RFP. Thus, the record shows that the agency*s
discussions on this point were meaningful.
BTI next contends that LAJV should have received a lower past performance
score because it is a new joint venture without any prior history of past
performance. BTI also complains that LAJV*s past performance score was
based solely on the performance history of only one of the joint venture
partners.
Where an RFP requires the evaluation of offerors* past performance, an
agency has the discretion to determine the scope of the offerors*
performance histories to be considered, provided all proposals are
evaluated on the same basis and consistent with the RFP*s requirements.
Honolulu Shipyard, Inc., B-291760, Feb. 11, 2003, 2003 CPD P: 47 at 4.
The performance history of one or more of the individual joint venture
partners may be considered in evaluating the past performance of the
entire joint venture, so long as doing so is not expressly prohibited by
the RFP. Northrop Grumman Tech. Servs., Inc.; Raytheon Tech. Servs. Co.,
B-291506 et al., Jan. 14, 2003, 2003 CPD P: 25 at 30.
Here, the RFP did not preclude consideration of a joint venture partner*s
past performance in lieu of performance by the joint venture entity, or
require consideration of all of the partners* past performance, but
instead contemplated that the agency would evaluate relevant contracts and
subcontracts that are similar in nature to the requirements of the RFP.
In its proposal, LAJV identified several prior contracts from only one of
its partners, LifeCare, who was proposed to provide investigation experts
and analysts, to include all of the senior project management and
supervisory team and senior data retrieval specialists, and corporate
resources for specialized investigation research training and Microsoft
product training. The proposal explained that LifeCare*s *core
competencies include legal counsel, forensic accounting, auditing,
assessments and reviews, investigations, data analysis, data mining, case
management, and centralized operations center management.* AR, Tab 8,
LAJV Proposal, S: 1.3. Given that the description of LifeCare*s efforts
encompassed most of the services required under the RFP, we find that the
agency could properly consider LifeCare*s performance history to be
reasonably predictive of the performance of the joint venture as a whole.
See Northrop Grumman Tech. Servs., Inc., supra, at 30-31.
We also find unobjectionable that the agency did not consider the past
performance of LAJV*s other partner, Advanta, who, according to LAJV*s
proposal, would be *support[ing]* the LifeCare efforts by providing
staffing of data retrieval specialist and administrative support
personnel. AR, Tab 8, LAJV Proposal, S: 1.3. As noted above, the RFP did
not require consideration of the past performance of all of the joint
venture partners, and LAJV did not provide (nor was it required to
provide) performance history of this partner, given the apparent lesser
role that Advanta would play in performing the contract.
BTI complains, however, that, in considering the prior contracts of
LifeCare, the agency inflated LAJV*s scores under the relevance
subfactor. BTI argues that, under the evaluation plan*s scoring scheme,
LAJV*s proposal should have received a score of no more than 10 points
(rather than the 15 points received) for relevance because the identified
contracts were *considerably less* in dollar value than that which will be
required under the RFP. As BTI notes, in order to receive a score of 15
points under the evaluation plan, an offeror*s contracts had to be *close
but do not match* the estimated size of the requirement, and contracts
that were *considerably less than* the estimated size, such as LAJV*s
here, could receive a score of no more than 10 points.
However, where, as here, an agency*s source selection evaluation plan is
an internal agency guideline, not incorporated into the RFP, the failure
to adhere to such a plan does not provide a valid basis for protest.
Global Readiness Enters., B-284714, May 30, 2000, 2000 CPD P: 97 at 6. It
is the evaluation scheme in the RFP, not internal agency documents, to
which an agency is required to adhere in evaluating proposals and in
making the source selection. Basic Contracting Servs., Inc., B-284649,
May 18, 2000, 2000 CPD P: 120 at 11 n.2.
Here, the record demonstrates that the agency evaluated relevance in
accordance with the RFP criteria--namely it considered whether the
identified contracts provided the same or similar services to the RFP*s
requirements, focusing on the quality of performance relative to the size
and complexity of the procurement under consideration--and recognized the
relative distinctions among offerors as required by the FAR, see FAR S:
15.305(a)(2)(i), and these distinctions were reasonably reflected in the
respective past performance scores.
Specifically, the agency noted that BTI*s incumbent contract provided the
*same type of services* as required here, and gave it the maximum 25
points under the relevance subfactor.[14] In comparison, the agency
recognized that LAJV*s contracts were less relevant than BTI*s, which
translated into a lower score of 15 points. While the agency found
several strengths regarding the relevance of LAJV*s past performance, such
as LAJV*s *good* *general knowledge,* *government contracting experience,*
and the fact that at least one of the contracts appeared to involve
*similar type* investigative work, AR, Tab 15, LAJV Technical Evaluation
Summary Score Sheet, at 2-3; Tr. at 183-85, 189, the agency also noted
that not all of LAJV*s referenced contracts had work similar to the RFP*s
requirements, specifically noting as weaknesses that a *[m]ajority of
contracts provided had to do with medical services or Workers Compensation
management,* that LAJV lacked law enforcement experience, and that LAJV*s
specific knowledge of the FinCEN*s processes and techniques was
*sketchy.* AR, Tab 15, LAJV Technical Evaluation Summary Score Sheet, at
3; Tr. at 222. The agency also noted in its evaluation that the joint
venture was newly formed and had no record of past performance outside of
its individual partners, and that the dollar values of LAJV*s referenced
contracts were smaller than that of the effort which will be required
here.[15] All of these evaluated factors resulted in a score of only 15
of 25 points under the relevance subfactor.
Thus, the record evidences that the agency fully recognized the relative
strengths and weaknesses of these offerors in terms of whether the prior
contracts provided similar services, including consideration of the size
of the contracts, in a manner consistent with the RFP, and thus awarded
LAJV*s proposal a significantly lower score than BTI*s for the relevance
subfactor. Tr. at 183-91. BTI*s argument that LAJV should have received
an even lower score reflects either its attempt to impose the internal
agency evaluation plan on the evaluation, which does not constitute a
valid basis for protest, or its disagreement with the agency*s judgment,
which does not render this judgment unreasonable. UNICCO Gov*t Servs.,
Inc., supra, at 7.
BTI also complains that the agency misevaluated its past performance under
the references subfactor, where it only received 72 of a possible 75
points. As noted above, the agency received unfavorable comments from the
COTR on BTI*s incumbent contract for the period of June 2002 through March
2003, and brought this to BTI*s attention during discussions. In
response, BTI asserted that the negative reference should be ignored
because BTI had not had an opportunity to *formally* respond (although BTI
provided a written response to the negative comments in its FPR), and
informed the agency of three earlier assessments of its incumbent contract
performance that were more favorable. Given BTI*s objection to the
consideration of the most recent past performance, which the agency
reasonably believed to be the most relevant with regard to the incumbent
contract, the agency did not consider any of the earlier incumbent
contract performance references, either. BTI contends that the failure to
consider the earlier, more favorable references was unreasonable, arguing
that this positive performance was *simply too close at hand to ignore.*
Supplemental Protest at 3.
The record shows that BTI*s past performance evaluation was downgraded
only 3 points; thus, even assuming BTI*s past performance warranted a
perfect score, its total score would then be 205 points, the same score
received by LAJV*s proposal, and LAJV*s proposal would still be in line
for award based on its lower evaluated price. Thus, BTI*s was not
prejudiced by the agency*s past performance evaluation, even assuming
BTI*s protest arguments here have merit.[16]
Finally, BTI argues that the agency improperly evaluated LAJV*s price. As
BTI notes, LAJV proposed five part-time management personnel at no cost to
the government to support contract performance. BTI asserts that the
agency was required to, but did not, assess the impact on price or risk
associated with these *free* individuals.[17]
However, as the agency explains, the five *free* individuals were not
required under the RFP, nor obligated to perform under the contract, and
thus pricing information was not required. Moreover, the individuals were
considered *superfluous* to the contract, because the services to be
performed were covered by other stated personnel, who were priced as
required under the RFP using the estimated number of hours stated in the
RFP. Tr. at 262-66, 281. The record also reflects that these *free*
individuals were *irrelevant* to the evaluation and were *not a factor in
recommending award.* Tr. at 263; AR, Tab 10, Recommendation for Award, at
6. Thus, we fail to see how there was any risk to the government, or that
the price of these individuals was required to be evaluated.
The protests are denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] LAJV is a joint venture formed specifically to respond to this RFP.
The joint venture partners are LifeCare Management Partners and Advanta
Medical Solutions, LLC.
[2] Section H.3, titled *Reassignment and Replacement of Key Contractor
Personnel,* permits the agency to require a contractor to replace key
personnel who are *objectionable* to the government. This clause does not
define qualifications for the key personnel, but does identify the key
personnel positions to be evaluated (project managers, supervisors, and
senior data retrieval specialists); the position descriptions for these
positions are listed elsewhere in the RFP.
[3] Although the parties dispute what was said during discussions, for
purposes of this decision, we accept the protester*s recitation of
events.
[4] The evaluation plan, which was not disclosed to the offerors, provided
that each proposal could receive a maximum of 225 points: 125 points for
technical merit and 100 points for past performance.
[5] To receive the maximum 30-point score for key personnel, the
evaluation plan stated that all designated key personnel had to have
*extensive experience, and demonstrated knowledge in law enforcement,
regulatory, financial or relevant programs.* Fewer points were awarded if
only some of the key personnel had such experience (e.g., 20 points if
only the project managers and at least three key personnel had the
requisite experience, 10 points if only the project managers had the
experience, and 0 points if none of the key personnel had the
experience). AR, Tab 16, Evaluation Plan, at 6.
[6] References were asked to evaluate quality, timeliness, cost control,
problem resolution, and customer service, which were worth 15 points each.
[7] Under the evaluation plan, to receive the maximum score (25 points)
under the relevance subfactor, an offeror*s prior contracts had to be
*close to or exceed the estimated size of the requirement in terms of
contractor personnel furnished,* have *a sufficient number of government
clients to indicate an understanding of governmental contracts,* and have
a *mix of labor categories and work . . . comparable to what is described
in the solicitation.* Fifteen points were to be awarded if the prior
contracts were *close but do not match the estimated size of the
requirement in terms of contractor personnel furnished, there are some
governmental clients, and the mix of labor categories and work matches
some of the solicitation requirements.* Ten points were to be awarded if
the prior contracts were *considerably less than the estimated size of the
requirement in terms of contractor personnel furnished, there are few
governmental clients, and the mix of labor categories and work matches a
few of the solicitation requirements.* AR, Tab 16, Evaluation Plan, at 4.
[8] The evaluation record does not explain how, or even if, these two
contracts are relevant to the requirements here.
[9] Under the transition and succession subfactor, LAJV*s initial proposal
did not receive maximum points because its plan, like BTI*s, lacked
detail. However, unlike BTI, it provided a more detailed plan in its FPR
in response to discussions, which caused the agency to raise LAJV*s score
in the final evaluation.
[10] BTI also complains that none of LAJV*s key personnel (who BTI asserts
do not have a history of employment with either LAJV or the joint venture
partners) provided commitment letters to demonstrate that LAJV could
adequately staff the contract. However, the RFP did not require offerors
to submit commitment letters from its proposed personnel, and BTI
similarly did not provide commitment letters. To the extent that BTI
complains that LAJV does not currently employ sufficient people to staff
the contract, we note that BTI*s proposal states that it also does not
have a full complement of employees hired and ready to begin work at the
commencement of the contract. See AR, Tab 6, BTI*s Initial Proposal, S:
2.3.2, at 15.
[11] BTI*s proposal contained numerous references to law enforcement and
financial crimes as it relates to the contractor*s support of the FinCEN*s
mission. This evidences that BTI was aware that law enforcement
experience could well be credited under the RFP.
[12] Although disputed by the protester, the agency asserts that it
specifically advised the protester during discussions that lack of law
enforcement experience and work experience would be considered in the
evaluation. Tr. at 98, 100. As indicated above, for purposes of this
decision, we do not resolve this dispute, but will accept the protester*s
version.
[13] We note that LAJV was not afforded discussions on this issue either,
even though it was assessed a similar weakness for lack of key personnel
experience.
[14] BTI*s other contracts were smaller in dollar value than the required
effort here and were for *straight* information technology services, which
did not include performing the investigative support work required under
the RFP. Thus, it appears that BTI was given the benefit of the doubt in
receiving a perfect score under the relevance subfactor.
[15] The dollar values of LAJV*s contracts are also smaller than those
identified by BTI.
[16] Competitive prejudice is necessary before we will sustain a protest;
where the record does not demonstrate that the protester would have a
reasonable chance of receiving award but for the agency*s actions, we will
not sustain a protest, even if deficiencies, such as an unequal evaluation
of proposals or lack of meaningful discussions, are found. Statistica v.
Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996).
[17] BTI also asserted that the five positions were *transferred* from key
personnel positions to *free* positions, thus allowing LAJV to improperly
*reclassify[] employees from direct to indirect charges* and unfairly
reduce its price. BTI*s Comments at 28. However, the record shows this
to be untrue, since LAJV*s proposal makes clear that the five positions
were, at all times, proposed at no cost to the government (that is, a
*transfer* of positions did not occur), and the reductions in LAJV*s FPR
price were unrelated to these positions. See Tr. at 269, 272.