TITLE: Chapman Law Firm, LPA, B-293105.6, B-293105.10, B-293105.12, November 15, 2004
BNUMBER: B-293105.6, B-293105.10, B-293105.12
DATE: November 15, 2004
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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
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Matter of: Chapman Law Firm, LPA
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File: B-293105.6, B-293105.10, B-293105.12
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Date: November 15, 2004
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James S. DelSordo, Esq., Halloran & Sage, for the protester.
Alfred C. Moran, Esq., for Harrington Moran Barksdale, Inc., an
intervenor.
Carolyn Fiume, Esq., Department of Housing & Urban Development, for the
agency.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
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1. Protest that agency misled protester during discussions into believing
that its responses had adequately addressed identified weaknesses and
deficiencies is denied where record shows that agency neither indicated to
protester that its responses to discussion questions resolved agency*s
concerns, nor otherwise indicated that protester could not further
address those concerns in its final proposal revision.
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2. Protest that agency*s evaluation improperly failed to credit protester
for proposed subcontractor*s experience is denied where subcontractor was
removed from management position in protester*s final proposal revision.
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3. Protest that agency incorrectly averaged adjectival ratings for
individual evaluation factors in determining overall adjectival rating for
protester*s technical proposal is denied, since record shows that award
decision was based, not on adjectival ratings, but on relative advantages
and disadvantages of protester*s and awardee*s proposals.
DECISION
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Chapman Law Firm, LPA protests the award of a contract to Harrington Moran
Barksdale, Inc. (HMBI) under request for proposals (RFP) No. R-OPC-22505,
issued by the Department of Housing and Urban Development (HUD) for
marketing and management services (M&M) for HUD-owned single-family
properties in the Illinois/ Indiana area.
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We deny the protest.
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The solicitation provided for a *best value* evaluation based on price and
the following technical factors (in descending order of importance):
management capability/quality of proposed management plan; past
performance; experience; proposed key personnel; subcontract management;
and small business subcontracting participation. Price was significantly
less important than the technical factors, which were rated using an
adjectival scale of excellent, good, fair, marginal and unacceptable.
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Several proposals were received, and Chapman*s and HMBI*s were among those
included in the competitive range. After multiple rounds of discussions
and the submission of final proposal revisions (FPR), Chapman*s proposal
was rated fair overall (fair for management capability/management plan,
good for past performance, fair for experience, fair for proposed key
personnel, good for subcontract management plan, and excellent for small
business subcontracting plan). Chapman*s proposed price was
$147,776,750. Agency Report (AR) at 15, 16. HMBI*s proposal was rated
good overall, with a good rating for each factor. Id. Although HMBI*s
price was $177,697.00, the technical evaluation panel recommended HMBI for
award as the firm submitting the best value proposal.
The contracting officer concurred and made award to HMBI.
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Chapman challenges the award decision on a number of grounds. We have
reviewed the record and find Chapman*s arguments to be without merit. We
discuss several of Chapman*s principal arguments below.
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DISCUSSIONS
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Chapman*s proposal was rated fair under management capability/quality of
proposed management plan. Chapman asserted in its initial protest that,
at the debriefing, HUD identified two proposal weaknesses under this
factor that it improperly failed to identify during discussions--the
preliminary quality control plan included few key management controls or
corrective actions, and the preliminary marketing plan contained many
errors and omissions, as well as poorly detailed proposed strategies. In
its report, HUD demonstrated that it did in fact raise these issues with
Chapman during discussions. In its September 27 comments responding to
the report, Chapman abandoned its argument regarding the adequacy of
discussions under this factor.
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Chapman also argues that HUD misled it into believing that its responses
to the discussion questions had satisfied HUD*s concerns. Specifically,
Chapman asserts that, during each round of discussions, HUD required
Chapman to address only those issues currently raised and informed it that
all prior issues had been resolved.
Chapman*s assertions are belied by the record. While HUD*s discussion
letters included the statement *Your written responses to the written
negotiations/ discussions should address only the areas set forth above. .
. . * (emphasis in original), the letters nowhere stated that prior issues
had been resolved, and (other than the initial letter, which did not
request FPRs) specifically advised that offerors may address any area in
their FPR. Discussion Letters dated Apr. 27, 2004, May 21, 2004, and June
8, 2004.[1]
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TECHNICAL EVALUATION
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Experience
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Chapman*s proposal was rated fair under the experience factor. According
to Chapman, this rating is unreasonable because it reflects a failure by
the agency to consider the experience of Chapman*s proposed subcontractor,
George Tustin.
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The solicitation provided that *[t]he proposal should provide evidence of
the firm*s experience or the experience of its major subcontract
partners.* RFP at 277. Chapman submitted its initial proposal as a joint
venturer with a number of partners, including George Tustin, who was
represented as having mortgagee compliance and property management
experience. Chapman Initial Proposal at 11. In its FPR, however, Chapman
changed its business organization to that of a sole proprietorship, with
many of the joint venture partners becoming employees. Response to
Discussion Question No. 2 (Apr. 8, 2004); FPR at 2 (May 2, 2004). HUD
found that Chapman*s FPR removed George Tustin as a major subcontract
partner, and that this left Chapman with no identified property management
experience and only limited mortgagee compliance experience. FPR at 11,
124. Chapman maintains that the agency unreasonably concluded that
Chapman removed George Tustin from its proposal, and that his experience
thus was no longer relevant for evaluation purposes.
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In reviewing a protest against an agency*s proposal evaluation, our role
is limited to ensuring that the evaluation was reasonable and consistent
with the terms of the solicitation and applicable statutes and
regulations. Philips Med. Sys. of North Am. Co., B-293945.2, June 17,
2004, 2004 CPD P 129 at 2.
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The agency*s evaluation conclusions were reasonable. Chapman*s initial
proposal listed George Tustin, owner of Tustin and Company, as a joint
venture partner, and listed George Tustin on the organizational chart as
an assistant vice president for management. Initial Proposal at 11. In
Chapman*s FPR, however, while George Tustin was still identified, along
with his experience, in the firm overview section of the proposal, there
no longer was any indication that he would have any role in performing the
contract--or, if so, what his role would be--and he was no longer listed
on the organizational chart. Based on the lack of any information
explaining George Tustin*s proposed role in performance and the change in
the organizational chart, the agency reasonably could conclude that George
Tustin no longer was being proposed to perform a property management and
mortgagee compliance function. We note that Tustin Field Services
(presumably an affiliate of Tustin and Company) is still included in the
protester*s FPR as one of many subcontractors that will assist with
inspections and/or repairs, FPR at 132, but, again, the FPR does not
indicate that this company was to be involved in the property management
and mortgagee compliance areas. We conclude that the agency reasonably
did not credit Chapman with experience in those areas.
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Key Personnel
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Chapman*s proposal was rated fair under the key personnel factor. During
the debriefing, Chapman was told of two significant weaknesses in this
area--the failure to identify qualified management staff at the contract
area office, and the failure to provide a clear, detailed and feasible
staffing plan. Chapman disagrees with this evaluation.
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With respect to management staff, HUD was concerned that the person
proposed as the contract area manager did not have the necessary
qualifications or experience, since his background was in criminal law and
he had no prior real estate or office management experience. AR at 26.
The agency was further concerned because Chapman did not provide a resume
for the only other named manager, its Indiana State director of
operations.[2] Id. Chapman does not dispute that the proposed manager of
the contract area office does not have any real estate or office
management experience, or that it failed to provide a resume for the
Indiana State director of operations. There thus is no basis to question
the agency*s conclusions in this regard.
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With respect to the staffing plan, HUD was concerned that Chapman proposed
only twoA file clerks to manage 7,000 files, failed to identify any staff
to support the quality control (QC) manager, and did not otherwise state
how many employees would staff the office. AR at 25-26. Chapman argues
that HUD*s focus on proposed clerks is unreasonable, since the clerk
position is the most minor entry-level position and, in any case, its
proposal made clear that additional clerks could be added if necessary.
Similarly, Chapman notes that its proposal stated that it is committed to
ensuring that the level of staffing and on-site management is ideally
suited to optimum contract performance, and to increasing staffing if
necessary. Chapman further asserts that the QC manager is listed above 78
other persons on the organizational chart, making it clear that he would
have all necessary personnel support.
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We find nothing unreasonable in the agency*s concerns. Chapman*s blanket
statement that it would hire more clerks if necessary and otherwise would
provide sufficient staff was not a substitute for proposing adequate
staffing in the first place or, alternatively, providing details regarding
its staffing plan. Further, the agency reasonably could conclude that the
mere listing of the QC manager above 78 people on the organizational
chart--with no explanation as to which personnel would be available for QC
support--was not sufficient to establish the amount of staff support that
would be provided to the QC manager. A proposal must include sufficient
information to demonstrate that the offeror is proposing to meet the
agency*s needs. Ervin & Assocs., Inc., B-280993, Dec. 17, 1998, 98-2 CPD
P 151 at 6. We conclude that the evaluation of Chapman*s proposal in this
area was reasonable.
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OVERALL RATING
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Chapman asserts that, based on its ratings (in order of importance) of
fair, good, fair, fair, good and excellent for the technical factors, its
proposal should have been rated good, rather than fair, overall.
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This argument is without merit. First, we see nothing objectionable in a
final adjectival rating of fair, given that three of the four most
important factor ratings were fair, and that the fourth rating was good.
In any case, Chapman attaches unwarranted weight to the adjectival
ratings. Such ratings are not binding on the source selection official
but, rather, serve only as a guide to intelligent decision making. See
Wesley Med. Resources, Inc.; Human Resource Sys., Inc., Ba**261938.5,
Ba**261938.6, Nov. 20, 1995, 95-2 CPD P 230 at 9 n.2. Here, the record
demonstrates that HUD*s comparison of the proposals and award decision
were based, not on a mechanical application of the overall ratings, but on
the underlying qualitative merits of the proposals. This being the case,
arriving at a different *average* adjectival ratinga**-good, instead of
fair, as Chapman claims its proposal should have been rated--for the
proposal*s overall rating would have had no effect on the award decision.
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BAD FAITH
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Chapman maintains that HUD engaged in unfair practices in conducting the
procurement, as evidenced by its failure to credit Chapman for certain
proposal revisions, and its allowing an offeror in another region to
substitute a subcontractor after award, while failing to credit Chapman
for its proposed subcontractor*s experience. Chapman further asserts that
a HUD employee accepted employment with an M&M contractor who submitted an
offer.
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Government officials are presumed to act in good faith, and a protester*s
claim that contracting officials were motivated by bias or bad faith must
be supported by convincing proof; our Office will not attribute unfair or
prejudicial motives to procurement officials on the basis of inference or
supposition. Shinwha Elecs.,
B-290603 et al., Sept. 3, 2002, 2002 CPD P 154 at 5 n.6.
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Chapman has not provided any evidence that agency officials acted in bad
faith or otherwise improperly. First, our review of the record shows that
HUD did consider all of Chapman*s proposal revisions; Chapman*s
disagreement with the agency*s conclusion that the revisions did not in
every case alleviate HUD*s concerns or warrant changes in Chapman*s
evaluation rating does not demonstrate bad faith. Further, as discussed
above, we find that HUD was justified in concluding that Chapman had
removed George Tustin from the firm*s proposal, at least with respect to
any management position, and therefore properly did not credit Chapman
with his experience. Finally, while the HUD employee identified by
Chapman reportedly did receive an offer of employment from an M&M
contractor, the employee has submitted a declaration stating that he did
not participate in the M&M procurement and that the ethics office at HUD
approved the employment. Employee Declaration, Sept. 14, 2004. The
protester has presented no evidence showing otherwise.
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LIMITATION ON SUBCONTRACTING
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The solicitation incorporated Federal Acquisition Regulation (FAR) S
52-219-14, which requires the contractor to perform more than 50 percent
of the cost of contract performance with its own staff. Chapman asserts
that the award to HMBI was improper because it was not clear from the
firm*s proposal that it would comply with this requirement.
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An agency*s judgment as to whether a small business offeror will comply
with the subcontracting limitation generally is a matter of
responsibility, and the contractor*s actual compliance with the provision
is a matter of contract administration. Symtech Corp., B-285358, Aug. 21,
2000, 2000 CPD P 143 at 12. However, where, as here, a protester alleges
that an offer indicates that the offeror will not comply with the
subcontracting limitation, we will consider the matter. Id.
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In evaluating HMBI*s proposal, HUD concluded that the division of
responsibility between HMBI and its subcontractor, Best Assets, together
with vague descriptions of such things as time commitments and position
descriptions, made it unclear whether HMBI would perform more than 50
percent of the value of the contract. HUD notified HMBI of its concerns
and, in response, HMBI clarified in its FPR what its responsibilities
would be in performing the contract. HUD concluded that HMBI*s FPR
demonstrated that the firm would perform 51 percent of the value of the
contract with its own work force. Given that there was nothing on the
face of HMBI*s proposal indicating that it could not or would not comply
with the requirement, and the fact that Chapman has not disputed HUD*s
conclusion, there is no basis for us to question HMBI*s compliance with
the subcontracting limitation.
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BONDING REQUIREMENT
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The solicitation required the contractor to submit a performance or
payment bond equal to 2 percent of the original cost of the contract
within 60 days of contract award. Chapman asserts that HUD improperly has
failed to enforce this requirement, instead permitting HMBI to provide
1/12 of the bond requirement in cash, instead of providing the actual
bond. We will not consider this argument; whether HMBI furnishes the
required bond is a matter of contract administration within the discretion
of the contracting agency, and not for our review. 4 C.F.R. SA 21.5(a);
Prime Mortgage Corp., B-238680.2, July 18, 1990, 90-2 CPD P 48 at 6 n.5.
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The protest is denied.
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Anthony H. Gamboa
General Counsel
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[1]To the extent Chapman did not resolve HUD*s concerns in responding to
discussion questions, the agency was under no obligation to hold repeated
rounds of discussions regarding the same issue. Professional Performance
Dev. Group, Inc.,
B-279561.2 et al., July 6, 1998, 99-2 CPD P 29 at 5 n.3.
[2] The agency also was concerned because it believed this individual had
been named as the state director of operations in another proposal, but
the agency now concedes, as the protester asserts, that she actually was
removed from that other proposal. Given the other deficiencies in this
area (and elsewhere in the proposal), there is no reason to believe that
this error by the agency had any effect on Chapman*s rating in this area
or on the award decision.