TITLE: Roca Management Education & Training, Inc., B-293067, January 15, 2004
BNUMBER: B-293067
DATE: January 15, 2004
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Roca Management Education & Training, Inc., B-293067, January 15, 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: Roca Management Education & Training, Inc.
File: B-293067
Date: January 15, 2004
Ruth E. Ganister, Esq., Rosenthal and Ganister, for the protester.
Capt. Richard M. Sudder, Department of the Army, for the agency.
Katherine I. Riback, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Agency reasonably downgraded proposal that was reasonably found to
contain an inadequate number of hours to accomplish the required tasks.
2. Agency properly considered subcontractor*s experience in evaluating an
offeror*s past performance where solicitation permitted the use of
subcontractors and did not prohibit the consideration of relevant
subcontractor experience.
DECISION
Roca Management Education & Training, Inc. protests the award of a
contract to Orion Technology, Inc. under request for proposals (RFP) No.
DABJ23-03-R-0007, issued by the Department of the Army, for on-site truck
driver instructor services. The protester challenges the agency*s
evaluation of its and the awardee*s proposals.
We deny the protest.
The RFP, issued as a Historically Underutilized Business Zone (HUBZone)
set-aside, provided for the award of a fixed-price contract for a 1-year
period with four 1-year options, to provide on-site truck driver
instructor services for motor transport operator and petroleum vehicle
operator courses at Fort Leonard Wood, Missouri. The RFP required the
contractor to plan and conduct classroom instruction and practical
training, evaluate student performance, provide administrative support,
and evaluate instructor*s performance for quality control purposes. While
the RFP stated that the contractor was to determine the number of
employees necessary to meet the staffing requirements, it also provided
that:
the Contractor shall provide eleven (11) man-year Full Time Equivalencies
(FTEs) of instructor support. For purposes of this contract a man-year
(FTE) is defined as 1848 hours of work effort (8 hrs. X 231 days).
RFP at 40. The RFP also provided that the project manager could, at the
contractor*s discretion, be a working instructor or an independent
supervisor, but that *supervisory duties must not detract from performance
of instructor duties.*
RFP amend. 1, at 2.
The RFP stated that award would be made to the offeror whose proposal was
*most advantageous to the Government, price and other factors
considered.* Three technical factors were listed, in descending levels of
importance: technical capability, quality control, and past performance.
Price was said to be approximately equal in importance to the combined
weight of the non-price factors. RFP at 9-10. The RFP provided that the
agency intended to make award without discussions.
The agency received three proposals, including Orion*s and Roca*s, in
response to the RFP. Orion*s proposal included a subcontractor, Eagle
Support Service Corporation, which was Orion*s business mentor. Roca
offered the lowest price of [DELETED]. Orion proposed a price of
$649,506. Roca*s proposal received the lowest technical rating of the
three proposals submitted.[1]
The agency was concerned with Roca*s proposal to utilize 1 of its
11 proposed instructors as the project manager, while proposing the exact
minimum 20,328 hours of effort to perform the instructor services plus all
of the required administrative duties.[2] The evaluators stated that this
approach represented a risk that the agency would get *little or no
quality control and administrative contract oversight, or in the
alternative [would] not get eleven FTEs of instructor services.* In
contrast, Orion proposed a separate project/quality manager, who would
also serve as a part-time instructor; Orion offered a total [DELETED]
hours of effort. Agency Report, Tab N, Source Selection Decision, at
1-2.
The agency also considered Orion*s instructor training plan, quality
control plan
and safety controls to be detailed and comprehensive, and superior to
Roca*s less specific plans, which the agency found to represent a
*significant risk [to the] Government.* In addition, the agency felt that
Roca *would have a hard time fully accomplishing the non-instructor tasks
[such as quality control and safety controls] without additional staff to
perform the non-instructor functions.* Id. at 2.
With regard to past performance, the agency found that Roca*s proposal
lists its corporate experience as being in *WEB based* training, and did
not indicate corporate experience in *doing hands on vehicle training.*
In contrast, Orion*s proposal indicates that it is *currently conducting
hand on vehicle training with military students at multiple locations.*
Id.
Based on the foregoing, the agency determined that the proposal of Orion
offered the best value to the government and made award to that firm.
This protest followed.
Roca first contends that the agency improperly evaluated its technical
proposal.
In reviewing protests against allegedly improper evaluations, 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. The 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.
Roca contends that the agency*s downgrading of its proposal because it
proposed to have 1 of its 11 full-time instructors also act as the on-site
project manager for the contract was unreasonable, and constituted an
unstated evaluation factor, inasmuch as the RFP expressly permitted the
project manager to be an instructor. Roca states that its proposed
instructor/project manager would work *as many hours as necessary* in
order to accomplish both the required instructor duties, as well as the
on-site administrative duties. Roca*s Comments at 11.
As noted, Roca proposed 11 full-time instructors at the exact minimum of
20,328 hours of effort for instructor support, yet still had to perform
administrative and quality control duties. While the RFP permitted a
working instructor to be the project manager, the RFP also stated that,
*supervisory duties must not detract from performance of instructor
duties.* RFP amend. 1, at 2. The agency states that, even though
administrative reports can be written after hours, other tasks, such as
instructor observations for quality control purposes, and meetings with
government personnel, must necessarily occur during ordinary working
hours, when instruction duties may also have to be performed. The agency
determined that it was unreasonable to conclude that a full-time
instructor could fill in for an absent instructor and perform quality
control evaluations and all associated administrative tasks. On this
record, we find that the agency reasonably concluded that Roca *would have
a hard time fully accomplishing the non-instructor tasks without
additional staff to perform the non-instructor functions.*[3] Agency
Report, Tab N, Source Selection Decision at 2.
The protester also argues that the agency should have communicated in
discussions its unstated requirement that instructor duties be separated
from management duties. We disagree. As stated above, there was no
requirement, stated or unstated, that the management and instructor duties
be separate. Instead, the agency was reasonably concerned that Roca
failed to propose an adequate level of effort to cover the required
instructor duties, as well as the associated administrative duties. There
is generally no obligation that an agency conduct discussions where, as
here, a solicitation specifically instructs offerors of the agency*s
intent to award on the basis of initial proposals. Techseco, Inc.,
B-284949, June 19, 2000, 2000 CPD P: 105 at 4. Here, Roca has provided no
valid basis to question the agency*s decision not to conduct discussions.
The protester next contends that Orion*s quality control plan and safety
controls should not have been considered superior to Roca*s because they
were prepared by Orion*s subcontractor, Eagle, for another contract.
However, the RFP does not require the offeror to write its proposal
without outside assistance. Our review confirms that Orion*s quality
control plan was far more detailed than Roca*s, and contains many more
scheduled and unscheduled quality control evaluations and spot corrections
than Roca*s quality control plan. Thus, Orion*s proposal was reasonably
determined to be superior to Roca*s.
The protester also complains that the agency misevaluated Orion*s proposal
and improperly attributed the experience of Orion*s subcontractor to
Orion. In this regard, Orion included no past performance references for
itself in its proposal, and instead relied upon Eagle*s references.
According to the protester, the RFP was explicit that the experience
proffered must be the experience of the actual offeror, not other
entities, noting that the proposal preparation instructions request the
offerors to *[p]rovide a list of all contracts and subcontracts completed
and/or work experience that you have performed during the past three
years.* RFP at 44 (emphasis added).
We see nothing improper in the Army*s approach here. Contrary to the
protester*s assertion, an agency may consider an offerors subcontractor*s
capabilities and experience under relevant evaluation factors where, as
here, the RFP allows for the use of subcontractors and does not prohibit
the consideration of a subcontractor*s experience in the evaluation of
proposals. The Paintworks, Inc., B-292982, B‑292982.2, Dec. 23,
2003, 2003 CPD P: __ at 3; Cleveland Telecommunications Corp..
B‑257294, Sept. 19, 1994, 94-2 CPD P: 105 at 5; see Federal
Acquisition Regulation S: 15.305(a)(2)(iii). In this case, Orion*s
proposal documents Eagle*s very relevant, successful past performance and
experience. Since Orion*s proposal indicated that it would heavily rely
upon Eagle*s expertise, the agency could reasonably consider that Eagle*s
past performance would be reasonably predictive of Orion*s performance
under the contract. See The Paintworks, Inc., supra; MCS of Tampa, Inc.,
B-288271.5, Feb. 8, 2002, 2002 CPD P: 52 at 6.
Roca also contests its past performance evaluation. While it does not
claim that the agency has inaccurately portrayed its proposal as
evidencing corporate experience only in *WEB based* training, it asserts
that the agency should have considered the *hands on* experience of the
firm*s proposed key personnel and proposed instructors. Notwithstanding
that FAR S: 15.305(a)(2)(iii) permits an agency to consider relevant
information based on the experience of proposed key personnel in
evaluating an offeror*s past performance, nothing in Roca*s proposal
documents any specific recent past performance experience by these
individuals that would overcome the agency*s concern, based on Roca*s
failure to show corporate experience in *hands on* training; under the
circumstances, we have no reason to question the evaluation of Roca*s past
performance based on the past performance of Roca*s key personnel. See
Blue Rock Structures, Inc., B‑287960.2, B‑287960.3, Oct. 10,
2001, 2001 CPD P: 184 at 4.
Roca also complains that the agency failed to contact Roca*s references in
evaluating its past performance. The agency acknowledges that it did not
contact Roca*s references, but notes that the protester has failed to
explain what relevant information the references could have added beyond
the information already provided in its proposal*s past performance
summaries. There is no legal requirement that all past performance
references be included in a valid review of past performance. Kalman &
Co., Inc., B-287442.2, March 21, 2002, 2002 CPD P: 63 at 9. For our
Office to sustain a protest challenging the failure to obtain a
reference*s assessment of past performance, a protester must show unusual
factual circumstances that convert the failure to a significant inequity
for the protester. MCS of Tampa, Inc., supra, at 5. No such showing has
been made here.
The protester also contends that the agency, in evaluating proposals,
failed to accord the stated 50 percent weight to price. The agency
responds that it did accord price the proper weight in the evaluation, but
that Roca*s lower price was *no bargain,* because Roca*s proposed level of
effort was deemed insufficient to adequately cover the hours of
instruction required by the RFP, as well as the associated administrative
tasks. Agency*s Supplemental Report at 3. Based on our review, we find
that the agency*s consideration of price was in accord with the RFP*s
evaluation scheme.
Finally, Roca claims that Orion*s proposal, because of its reliance on
Eagle, may violate the subcontracting limitation included in the RFP,
which provides that *at least 50 percent of the cost of personnel for
contract performance will be spent for employees of the concern or
employees of other HUBZone small business concerns.* RFP at 21. As a
general rule, an agency*s judgment as to whether a small business offeror
will comply with the subcontracting limitation is a matter of
responsibility, and the contractor*s actual compliance with the provisions
is a matter of contract administration. However, where a proposal, on its
face, should lead an agency to the conclusion that an offeror could not
and would not comply with the subcontracting limitation, it may not form
the basis for an award. See KIRA, Inc., B-287573.4, B‑287573.5,
Aug. 29, 2001, 2001 CPD P: 153 at 3. Here, not only did nothing in
Orion*s proposal evidence that it would not comply with this limitation,
but, prior to making award, the agency expressly clarified with Orion its
intent to so comply.
Based on our review, we find the agency*s evaluation of Orion*s proposal
to be reasonable, and we find no basis to object to the award.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] The third proposal was significantly higher priced than Orion*s.
[2] As noted, for the purposes of this contract, an FTE was defined as
1,848 hours of work effort. Roca proposed 11 FTEs. Therefore, the
following calculation applies: 11 persons x 1,848 hours=20,328 total
hours.
[3] The protester contends that the agency utilized only one evaluator to
evaluate the proposals, and that this evaluator was *forceful* in his view
that *a single person could not manage to both act as an instructor and a
supervisory person.* Roca*s Protest at 9. The agency responds that two
evaluators reviewed the proposals, and the record contains two sets of
evaluation documents for each offeror, which reasonably support the
evaluation. Agency Report, Tabs G and H, Evaluation Documents for Roca*s
and Orion*s Proposals. To the extent that the protester*s argument
implies that the particular evaluator was biased, the record provides no
basis to support the speculation. Government officials are presumed to
act in good faith, and we will not attribute unfair or prejudicial motives
to procurement officials on the basis of inference or supposition.
Starlight Corp., B‑291520, Jan. 3, 2003, 2003 CPD P: 21 at 4
n.1.