TITLE: AdapTech General Scientific, LLC, B-293867, June 4, 2004
BNUMBER: B-293867
DATE: June 4, 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
Matter of: AdapTech General Scientific, LLC
File: B-293867
Date: June 4, 2004
John E. Jensen, Esq., Devon E. Hewitt, Esq., and Daniel S. Herzfeld, Esq.,
Shaw Pittman, for the protester.
Claude P. Goddard, Jr., Esq., and Mary Katherine Holohan, Esq., Wickwire
Gavin, for Resource Management Concepts, Inc., an intervenor.
Mitzi S. Phalen, Esq., Naval Air Systems Command, 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 underlying evaluation record confirms agency*s finding of no
significant difference in technical quality between protester*s and
awardee*s equally‑rated proposals, source selection authority
reasonably concluded that awardee*s lower‑priced proposal
represented *best value* to the government.
2. Allegation of improper *bait and switch* scheme by awardee based on
job offers to incumbent key and non-key personnel is denied where there is
no showing that awardee misrepresented availability of its proposed key
personnel; job offers were made after incumbent personnel contacted
awardee post-award; contract includes key personnel substitution
provision; although awardee plans to request substitution of 3 of 11 key
personnel, all but one proposed key employee--who left the firm--is
available to perform if substitution is not approved; and potential
substitution of non-key personnel could have no impact on evaluation,
which focused on key, not non-key, personnel qualifications.
DECISION
AdapTech General Scientific, LLC protests the award of a contract to
Resource Management Concepts, Inc. (RMC) under request for proposals (RFP)
No. N00421-03-R-0114, issued by the Naval Air Warfare Center Aircraft
Division as a competitive section 8(a) set-aside for support services.
AdapTech challenges the agency*s source selection methodology and asserts
that RMC engaged in an improper *bait and switch* of its proposed
personnel.
We deny the protest.
The RFP sought proposals to provide engineering, analytical, and program
management support services at the agency*s facility in Patuxent River,
Maryland. The RFP called for 68 personnel in 10 labor categories,
including the project manager and technical expert, both of which were
identified as key personnel. All labor categories had minimum education
and experience requirements, and offerors were required to identify both
key and non-key personnel on a matrix showing education, years of
experience, and experience related to the statement of work. In addition,
proposals were to include a 1-page narrative demonstrating each key
employee*s specific experience and specialized qualifications. The RFP
contemplated the award of an indefinite-delivery/indefinite-quantity time
and materials contract for a base year, with 4 option years.
Proposals were to be evaluated on the basis of price and offeror
capability, the latter factor including the following subfactors (in
descending order of importance): relevant corporate experience, (key)
personnel resources, and past performance.[1] Offeror capability was
considered significantly more important than price. The technical
evaluation was intended to result in a level of confidence assessment
rating (LOCAR)--ranging from low-minus to high-plus--which represented the
agency*s subjective assessment of the likelihood that an offeror would
comply with the contract requirements. Award was to be made to the
offeror whose proposal represented the *best value* to the government.
Five offerors, including AdapTech and RMC, submitted proposals that were
evaluated by separate technical and price evaluation teams. The final
evaluation results for AdapTech and RMC were as follows:
+------------------------------------------------------------------------+
| |RMC | |
|------------------------+-----------------+-----------------------------|
|Offeror Capability | |High + |High + |
|------------------------+-----------------+-----------------+-----------|
|Price |$26,760,525 |$26,368,901 | |
+------------------------------------------------------------------------+
In making his award determination, the source selection authority (SSA)
consulted with the contracting officer and reviewed the results of the
technical evaluation, the business clearance memorandum, and the reports
of the technical and price evaluation teams. Based on this information,
and in view of the offerors* identical high+ LOCAR ratings, the SSA
concluded that RMC*s lower price made its proposal the best value, and
thus made award to RMC. After receiving a debriefing, AdapTech filed this
protest.
EVALUATION/SOURCE SELECTION
AdapTech asserts that the SSA improperly made a mechanical best value
decision based solely on the equal summary adjectival ratings assigned to
each offeror*s proposal. In AdapTech*s view, its proposal should have
been found substantively superior to RMC*s in the areas of personnel
resources and past performance.[2] Noting that the technical factors were
of greater importance than price, AdapTech asserts that, had the SSA
compared the substantive merits of the proposals, he would have awarded it
the contract.
In reviewing a protest of an agency*s evaluation of proposals and source
selection decision, our review is confined to a determination of whether
the agency acted reasonably and consistent with the terms of the
solicitation and applicable statutes and regulations. United Def. LP,
B-286925.3 et al., Apr. 9, 2001, 2001 CPD P: 75 at 10‑11.
The evaluation and source selection were unobjectionable. The record does
not support the protester*s assertion that the SSA relied solely on the
subfactor adjectival ratings and the LOCAR rating, without considering the
substantive differences in the proposals. Rather, the record shows that
he reviewed the business clearance memorandum, which examined the
underlying scores of each evaluator; the reports of the technical and
price evaluation teams; the evaluation write-ups that explained the
rationale behind the assigned adjectival ratings; and the evaluation
team*s LOCAR scores, to ensure that the LOCAR scores he ultimately
assigned were appropriate. Source Selection Decision; SSA Declaration,
P: 4. Nothing in these underlying evaluations establishes that AdapTech*s
proposal was superior to RMC*s in any area. In fact, although the
consensus evaluation assigned AdapTech*s proposal overall excellent scores
under each technical subfactor, RMC*s proposal received consistently
higher individual ratings. For example, two of the three evaluators rated
AdapTech*s proposal as simply good under the personnel subfactor, while
all three evaluated RMC*s proposal as excellent under this subfactor.
Thus, on this record, there was no basis for the SSA to conclude that
AdapTech*s proposal was superior to RMC*s.
While AdapTech identifies two discriminators under the personnel
subfactor, neither provides a basis for finding its proposal was superior
to RMC*s. AdapTech asserts that its proposal was superior to RMC*s
because it proposed no contingent hires, while RMC proposed [deleted].
Agency Report (AR) Tab 11 at 3-4, Tab 12 at 10-11. We disagree. The RFP
did not require that all proposed personnel be currently employed by the
offeror, and the source selection plan provided for a rating of excellent
where the majority of the personnel were currently employed. AR Tab 4
at 40. Given this evaluation starting point, the agency reasonably could
determine that a [deleted] did not constitute a meaningful distinction
between the proposals.[3] Indeed, this is precisely what the agency
determined. In finding both proposals excellent, the SSA specifically
considered RMC*s proposal of [deleted], and concluded that it was offset
by the mix of specialty expertise of RMC*s key personnel. The SSA further
found in this regard that, while AdapTech proposed no contingent hires, it
also had no noted specialty expertise. SSA Declaration at P: 5.
AdapTech suggests that its proposal should have been rated superior to
RMC*s under the personnel subfactor because one evaluator commented that
RMC*s specialty expertise mix was subject to an overall *theme* in one
area, and did not make a similar comment about AdapTech*s proposal.
AdapTech Comments at 9, n.4. Again, we disagree. When a selection
official determines that proposals are technically equal, it does not mean
that the proposals are identical in every respect; one may be superior to
the other in a variety of areas. Rather, such a finding means that,
overall, there is no meaningful difference in what the proposals have to
offer. Schaeffer Eye Center, B‑284268, Mar. 20, 2000, 2000 CPD
P: 53 at 5. Thus, the mere fact that AdapTech*s proposal may be superior
to RMC*s in one identifiable respect under an evaluation subfactor does
not establish a flaw in the agency*s finding that the proposals were
equivalent overall. In any case, it is not clear to us how the cited
comment indicates that the evaluator considered RMC*s proposal weak or
deficient compared to AdapTech*s, particularly given that the evaluator
rated both proposals as excellent. AR, Tab 21. Moreover, the other two
evaluators did not make a similar comment about RMC*s proposal, and rated
the proposal as excellent under this subfactor while rating AdapTech*s as
only good, citing its limited breadth of expertise for the majority of its
proposed technical experts. We conclude that the SSA reasonably found
that AdapTech*s proposal was not superior to RMC*s in this area.
BAIT AND SWITCH
AdapTech alleges that RMC misrepresented the availability of its proposed
key personnel, and that its proposal should be rejected for this reason.
As evidence of RMC*s misrepresentation of availability, AdapTech cites
RMC*s contacting and extending job offers to 18 incumbent AdapTech
personnel, including the project manager and five others identified as key
personnel in AdapTech*s proposal. RMC acknowledges that it is seeking the
substitution of up to 3 of its 11 key personnel--its program manager and
up to two technical experts. [4]
An offeror may not propose to use specific personnel that it does not
expect to use during contract performance; doing so would have an adverse
effect on the integrity of the competitive procurement system and
generally provide a basis for proposal rejection. CBIS Fed. Inc.,
B-245844.2, Mar. 27, 1992, 92-1 CPD P: 308 at 5. The elements of such an
impermissible bait and switch are as follows: (1) the awardee represented
in its proposal that it would rely on specified personnel in performing
the services; (2) the agency relied on this representation in evaluating
the proposal; and (3) it was foreseeable that the individuals named in the
proposal would not be available to perform the contract work. Ann Riley &
Assocs., Ltd.--Recon., B‑271741.3, Mar. 10, 1997, 97-1 CPD
P: 122 at 2‑3.
As required by the RFP, RMC proposed specific individuals for the 11 key
personnel positions and the agency relied on these representations in
evaluating the proposal. RFP S:S: L.2.2.b.2 and M.2.B. However, under
the circumstances of this case, the firm*s plan to substitute some of its
key personnel provides no basis for concluding that it misrepresented
their availability for this contract. In this regard, all 11 of the
proposed key personnel were RMC*s or its subcontractor*s employees and,
according to RMC, it intends to provide all but one of them to perform, if
the agency does not allow substitution. Declaration of RMC Controller at
P:P: 7-8. The one employee who RMC claims cannot be provided left RMC*s
employ on March 4, 2004, less than 1 week before the agency awarded RMC
the contract. There is no evidence that RMC anticipated this employee*s
leaving prior to termination of his employment, and substitution of such
key personnel is specifically provided for in the RFP. RFP S: H, clause
5252.237-9501. Thus, the need to replace this employee does not establish
that RMC misrepresented his availability. Likewise, since award was made
on the basis of initial proposals, eliminating an opportunity to advise
the agency of this change in a revised proposal, and award was made
shortly after the employee*s departure, we do not believe RMC*s failure to
notify the agency implies an intent to misrepresent the availability of
its proposed personnel. See Unisys Corp., B-242897, June 18, 1991, 91-1
CPD P: 577 at 4.
We reach the same conclusion with regard to RMC*s planned substitution of
its proposed program manager and the other technical expert. After
contract award, the incumbent program manager contacted RMC offering to
provide information on incumbent employees. Declaration of Human
Resources Director, at P:P: 7-8. By that time, RMC had already received
unsolicited resumes from most of the incumbent personnel. Id., P: 8.
Subsequently, he met with RMC management and expressed an interest in
working for RMC on the contract, but advised that, due to health
considerations, he was unable to work full time. Declaration of RMC
Controller, P:P: 2, 4. Based on his history with the incumbent contract,
his relationship with the agency, and other qualifications, RMC offered
him a position as a program manager on the new contract.[5] Id., P: 5.
RMC plans to offer him as a substitute for its proposed program manager,
subject to the agency*s approval, and will use its original program
manager if the substitution is unacceptable. Id., P: 6. Similarly, with
regard to a third key employee, RMC explains that the employee is equally
qualified and that it will seek the agency*s authorization for the
replacement. Id., P: 9. If the agency refuses to allow this
substitution, RMC intends to use its proposed key personnel. Id.,
P:P: 6-9. As with the terminated employee, there is nothing in the record
to indicate that RMC intended to substitute its program manager and the
other technical expert prior to the incumbent employees* (post-award)
contact with RMC seeking employment. The substitution of incumbent
employees for proposed employees with an agency*s permission, and where
there has been no misrepresentation, is not an improper bait and switch.
A&T Eng*g Techs., VECTOR Research Div., B‑282670, B‑282670.2,
Aug. 13, 1999, 99-2 CPD P: 37 at 8.[6]
AdapTech also notes that an additional 15 incumbent employees, including
other key personnel, have been offered employment by RMC and its
subcontractors. There is no evidence that RMC has sought approval to
substitute these incumbent employees for its proposed personnel, but even
if it does so in the future, there would be no basis for finding an
improper bait and switch scheme. As with the key personnel discussed
above, there is no evidence that RMC intended to substitute these
personnel prior to receiving the award; rather, the record shows that the
incumbent employees contacted the firm, unsolicited, post-award, seeking
employment on the new contract. Declaration of RMC Director of Human
Resources at P: 8. In addition, there is no evidence that the agency
relied on the proposed non-key personnel in its evaluation, an integral
element of an improper bait and switch. Ann Riley & Assocs.,
Ltd.--Recon., supra, at 3. In this regard, while the RFP required that
non-key personnel be identified and that they meet minimum qualifications,
it did not require the submission of resumes, and non-key personnel were
not included as part of the personnel resources evaluation. RFP
S:S: L.2.2.b.1, M.2.B. Under these circumstances, there is no basis to
find a bait and switch.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] The RFP also included an optional oral presentation, which the agency
did not utilize.
[2] In its comments on the agency report, AdapTech asserts that its
superiority over RMC under the past performance factor is shown by the
fact that none of its performance reports was below excellent or
good/excellent, while RMC*s past performance was rated only good under
some reports. AdapTech Comments at 8. This allegation is without
merit. While AdapTech*s past performance reports included four excellent
ratings and one good/excellent rating, RMC and its team had seven
excellent, one good/excellent, and three good ratings. Based on these
scores, the agency reasonably could conclude that AdapTech*s past
performance was not superior to RMC*s.
[3] As discussed below, RMC plans to substitute up to three of its
proposed key personnel with comparably qualified incumbent personnel. We
do not believe that these substitutions, if allowed, call into question
the validity of the RMC evaluation. In this regard, as stated, an
offeror*s proposal could be rated excellent if a majority of its personnel
exceeded the requirements, and the substitution of three personnel would
leave RMC still proposing a majority of excellent-rated key personnel.
Further, the proposed substitutes are incumbent personnel who were also
rated as excellent in the evaluation.
[4] It is not clear from the record whether RMC intends to replace two of
its key personnel in the technical expert labor category or only one
technical expert who has left its employ. For purposes of this decision,
we assume that RMC plans to replace both of these key personnel.
[5] In fact, RMC had offered the program manager the opportunity to be
proposed for the position on the RMC team but, when he refused, the firm
proposed another individual. However, there is nothing in the record to
indicate that a substitution was planned.
[6]Moreover, while the agency relied on the personnel proposed by RMC and
rated them excellent, it also rated the incumbent key personnel (proposed
by AdapTech) as excellent. Thus, there is no reason to infer that the
evaluation would have been any different had RMC either proposed these
personnel or specifically proposed to hire qualified incumbent personnel
after award of the contract.