TITLE: AHNTECH, Inc., B-293582, April 13, 2004
BNUMBER: B-293582
DATE: April 13, 2004
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AHNTECH, Inc., B-293582, April 13, 2004
Decision
Matter of: AHNTECH, Inc.
File: B-293582
Date: April 13, 2004
Sam Ahn for the protester.
Eric Kattner and Capt. Richard E. Alford, Department of the Air Force, for
the agency.
Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Where solicitation advised offerors that agency intended to make award
without discussions, but agency did issue clarification requests to
offerors, protester*s unsolicited proposal revisions in response to
clarification requests did not convert clarifications into discussions.
2. In determining whether protester*s proposal demonstrated adequate
management capabilities, agency reasonably found that proposal*s failure
to include plan for turn‑in of significant quantities of former
government furnished equipment and failure to offer sufficient fire
protection personnel warranted elimination of proposal from the
competition.
DECISION
AHNTECH, Inc. protests the agency*s decision to eliminate its proposal
from the competition under request for proposals (RFP) No.
F02604-03-R-0041, issued by the Department of the Air Force for operations
and maintenance (O&M) services. AHNTECH asserts that the agency improperly
evaluated its proposal and improperly refused to allow the firm to revise
its proposal.
We deny the protest.
The RFP sought proposals to provide all personnel, vehicles, equipment,
tools, materials, supervision, and all items and services necessary to
perform a variety of O&M services in support of the F-16 fighter pilot
training program and supporting facilities at the Gila Bend Air Force
Auxiliary Field and Barry M. Goldwater Range at Luke Air Force Base (AFB),
Arizona. The statement of work (SOW) described the tasks, operational
requirements, and personnel requirements to perform such services as
airfield/manned range operations and maintenance, civil engineering, fire
protection, security forces, logistics, air traffic control, and
environmental engineering. The RFP contemplated the award of a
fixed-price, indefinite-delivery/indefinite-quantity contract for a
5-month base period, with 7 option years.
Proposals were to be evaluated under three factors: technical
acceptability, past performance, and price, with past performance
considered significantly more important than price. Technical proposals
were evaluated on a pass-fail basis under two technical
subfactors--soundness of mobilization and transition plan and soundness of
accounting and purchasing systems. The purpose of the first subfactor was
to ensure that the offeror had demonstrated adequate management
capabilities to ensure a smooth transition with no loss of services. The
plan was to be evaluated using criteria that included proposed manning, a
mobilization plan for infrastructure projects, and a sound
acceptance/inventory plan for transfer of vehicles and other government
equipment. Any proposal that did not pass the mobilization/transition
plan subfactor would not be evaluated further and would be eliminated from
the competition. The RFP advised that the agency intended to award the
contract without conducting discussions.
AHNTECH was one of several offerors submitting proposals, which were
evaluated by the agency. Based on their initial evaluation, the
evaluators issued 52 clarification requests (CR) to AHNTECH and the firm
responded to all of them. After reviewing AHNTECH*s responses, the agency
concluded that the proposal was inadequate in areas critical to
performance of the requirement. Among other failures, the evaluators
found that AHNTECH had failed to propose sufficient fire protection
personnel and had submitted an unacceptable plan for turning in
government‑furnished equipment (GFE). Because AHNTECH*s proposal
was found unacceptable under the first subfactor, the contracting officer
excluded it from further consideration in the evaluation. Award was made
to another offeror on the basis of initial proposals. After receiving a
debriefing, AHNTECH filed this protest. [1]
DISCUSSIONS
In the course of responding to the agency*s 52 clarification requests,
AHNTECH submitted a number of revisions to its proposal. At its
debriefing, the agency advised AHNTECH that the requests were only
intended to clarify or enhance the agency*s understanding of the proposal,
and were not intended to provide the firm with the
opportunity to revise its proposal or to cure proposal deficiencies. The
agency therefore did not consider the revisions in the evaluation.
Debriefing at P:P: 2, 3, and 8. AHNTECH asserts that the clarification
requests *exceeded the boundaries of technical clarifications and
constituted discussions,* in response to which it should have been allowed
to revise its proposal. Protest at 2. The protester concludes that the
agency improperly refused to consider its revisions in the evaluation.
Whereas negotiations, or discussions, are exchanges with offerors in the
competitive range that are undertaken with the intent of allowing proposal
revisions, Federal Acquisition Regulation (FAR) S: 15.306(d),
clarifications are limited exchanges with offerors intended to resolve
minor or clerical errors or to allow offerors to clarify matters such as
the relevance of past performance information. FAR S: 15.306(a). Where,
as here, an agency states its intention to award on the basis of initial
proposals, without discussions, an agency nevertheless may seek
clarifications from offerors. FAR S: 15.306(a); see Landoll Corp.,
B‑291381 et al., Dec. 23, 2002, 2003 CPD P: 40.
There is no basis for finding that the agency engaged in discussions with
the protester. Each communication with AHNTECH simply provided the firm
with the opportunity to clarify, not modify, its proposal. The various
performance requirements were listed in the 317-page SOW, but instead of
very detailed proposals, the RFP required offerors to submit limited
information to establish the soundness of their mobilization and
transition plans, including an organizational chart listing the proposed
manning requirements for each element of work and identifying the number
of qualified /certified employees required. After reviewing AHNTECH*s
proposal, which included an organizational chart showing its
proposed personnel, the evaluators issued a variety of CRs, the majority
of which sought amplification and clarification of AHNTECH*s proposed
manning to flesh out what was not apparent from the face of the manning
chart.
For example, several requests questioned how AHNTECH would meet the
requirements with its proposed manning. CR Nos. AN 6-2, 7‑3, 9-17,
and 16-1. Apparently recognizing the intent of these CRs, AHNTECH
explained in detail how its cross-utilization of personnel, multi-skilled
and experienced leaders, and streamlined management would meet various of
the SOW*s requirements. It then advised the agency that it had added
personnel to *meet all requirements of the SOW.* Response to CR Nos. AN
6-2, 7‑3, 9-17, and 16-1. Similarly, in another CR, the evaluator
noted the number of proposed guards, their different qualification levels,
and that, *historically,* the total number proposed would not be
sufficient. CR No. AN 8-1. Again, recognizing the intent of the CR,
AHNTECH explained how less qualified guards would be moved to the higher
level once they were fully qualified. Response to CR No. AN 8-1.
However, instead of explaining how its proposed guards would meet all the
requirements, it submitted a revision that added upper level guards.
The contracting officer has broad discretion whether to open discussions.
Colmek Sys. Eng*g, B-291931.2, July 9, 2002, 2003 CPD P: 123 at 7. Here,
the RFP stated that the agency did not intend to open discussions, and the
questions issued to AHNTECH were labeled *Clarification Request* and,
rather than identify and seek correction of deficiencies or weaknesses,
sought clarification of the firm*s proposal. As such, the clarification
requests did not constitute discussions. By proposing additional
personnel to meet the SOW requirements, AHNTECH, not the agency,
disregarded the scope of the clarification process. The firm*s unilateral
decision to modify its proposal could not and did not transform the
agency*s clarifications into discussions.
TECHNICAL EVALUATION
AHNTECH challenges the agency*s evaluation regarding its plan for the
turn-in of GFE and its proposed fire protection personnel. In AHNTECH*s
view, the agency*s negative evaluations were unwarranted because its
proposal met the requirements set forth in the RFP.
In reviewing a protest of an agency*s proposal evaluation, it is not our
role to reevaluate proposals. Rather, we will 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. The evaluation here
was unobjectionable.
GFE Turn-In Plan
The SOW (S:S: V.5 and V.6) listed a limited amount of GFE and required
the successor contractor, during the transition phase, to turn in all
non-listed GFE to Luke AFB. SOW S: 19.1.2.1. AHNTECH*s proposal
discussed preparation of a GFE inventory and the firm*s intent to assume
custody of all contract government property, but did not address turning
in non-listed GFE. AHNTECH Proposal at 35. When the evaluators asked
AHNTECH how it intended to turn in *the vast amount of GFE* in accordance
with section 19 of the SOW, AHNTECH proposed to transfer the property to
the Defense Reutilization and Marketing Office on paper and to use
whatever GFE was still serviceable to meet the contract requirements.
Response to CR No. AN 6-3. The agency found that AHNTECH*s proposal, as
clarified, failed to comply with the SOW requirement for the turn-in of
non-listed GFE.
We find nothing unreasonable in the agency*s conclusion. The SOW plainly
called for AHNTECH to be responsible for turning in the non-listed
property. [2] AHNTECH*s plan instead to use the property that it was
required to turn in to meet its equipment and supplies responsibilities
clearly was contrary to the SOW requirements, and raised doubts as to
whether AHNTECH could adequately meet the SOW requirement that the
contractor provide and replenish all equipment and supplies not furnished
by the government necessary to perform the contract requirements. SOW
S: I.16.6.1. Since any attempt to revise the plan to meet the SOW
requirements would necessitate material proposal changes, the agency
reasonably evaluated AHNTECH*s plan as *technically not correctable.*
Notice of Exclusion Letter, Dec. 8, 2003, at 1.
Fire Personnel
The SOW provided for the contractor to maintain sufficient numbers of
Department of Defense (DoD) certified personnel to provide management,
training, fire prevention, and administrative support, and to maintain two
operational shifts in accordance with DoD Instruction (DoDI) 6055.6. SOW
S: 7.2. The SOW separately identified positions for assistant fire chiefs
for operations (SOW S: 7.3.2) and a fire prevention/training/safety
officer (PTSO) (SOW 7.3.3); both positions required individuals to be
qualified in all aspects of airfield, structural, hazardous materials
firefighting, and confined space rescue. AHNTECH*s initial proposal
listed one assistant fire chief and no designated PTSO, leading the
evaluators to issue clarification requests, one asking how many assistant
fire chiefs were proposed, and another asking if there were a PTSO whose
sole duties were those specified in the SOW. CR Nos. AN 7-3 and AN 7-4.
AHNTECH responded that it had proposed a single assistant fire chief and
that he would perform the PTSO duties. The agency found that AHNTECH*s
proposal, as clarified, failed to comply with the SOW requirements in
these (and various other) respects.
We find nothing unreasonable in the agency*s conclusion. The SOW plainly
called for two operational shifts, and DoDI 6055.6 specifically identifies
a requirement for two assistant fire chief (shift supervisor) positions.
According to the agency, each operational shift is 48 hours on-duty and
then 48 hours off-duty. With only one assistant fire chief, AHNTECH was
essentially proposing to have no management or command personnel on duty
during every other shift. Contracting Officer*s Statement at 26. AHNTECH
asserts that this evaluation conclusion was unreasonable because its
proposal was based on having one of its lead firefighters, who allegedly
met the stated qualifications, assume management responsibilities on the
applicable shifts. Protest at 7. However, the agency reasonably
determined that this approach was inconsistent with the SOW, which listed
crew chiefs and fire
fighters as separate positions from assistant fire chiefs. SOW
S:S: 7.3.4, 7.3.5, 7.3.6.
With regard to the PTSO, the agency notes that DoDI 6055.6, with which
offerors were required to comply, identifies the PTSO as a separate
position, Contracting Officer*s Statement at 25, and in its pre-closing
answers to questions, the agency specifically addressed the PTSO,
verifying that it was a *separately staffed position.* Answer No. 133.
Although, as AHNTECH notes, the agency never amended the SOW to
incorporate the questions and answers (they instead were made available
electronically), this does not mean that AHNTECH was free to read the SOW
inconsistently with answer No. 133. In this regard, SOW S: 7.3.3 clearly
described a separate position with specific duties not included in the SOW
section outlining the qualifications for assistant fire chiefs. We think
the plain import of this description was that a separately staffed
position was contemplated, and answer No. 133 clarified that this was the
case. We conclude that the agency could reasonably find AHNTECH*s
response to the PTSO requirement unacceptable.
As illustrated by the foregoing examples, based on our review, we find
that the agency reasonably rejected AHNTECH*s proposal as unacceptable
under the soundness of mobilization/transition plan subfactor.
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] AHNTECH raised numerous issues in its submissions to our Office. We
have considered them all and find that none has merit. This decision
addresses the more significant issues raised.
[2] We note that the agency made clear, prior to the closing date, that
plans to use the former GFE were not acceptable. Specifically, in
response to an offeror*s suggestion that contractors be allowed to keep
this property, repairing or replacing it as necessary, the agency
responded that it would *not consider this option* because the property
was *old and in need of replacement* and most items *had exceeded their
life expectancy.* Question and Answer No. 160.