TITLE: The OMO Group, Inc., B-294328, October 19, 2004
BNUMBER: B-294328
DATE: October 19, 2004
**********************************************************************
Decision
Matter of: The OMO Group, Inc.
File: B-294328
Date: October 19, 2004
Garreth E. Shaw, Esq., The Shaw Law Firm, for the protester.
Susan L. Schor, Esq., McManus, Schor, Asmar & Darden, for RehabPlus Group,
Inc., an intervenor.
Clarence D. Long III, Esq., Department of the Air Force, for the agency.
Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Where solicitation required the submission of an *average vacancy fill
rate* in order to evaluate a firm*s ability to address personnel turnover
in a timely manner, the agency reasonably calculated the awardee*s rate
using reported vacancies for positions that were identified as vacant for
zero calendar days based on its conclusion that a vacancy of zero days
represented situations where a position was immediately filled, thus
demonstrating good planning and management by the awardee.
2. Contracting agency reasonably concluded that awardee*s program manager
had the solicitation*s desired experience, despite the fact that the
awardee*s proposal indicated that its program manager only partially met
the desired experience criterion, where the record shows that the
evaluators were familiar with the nature of the positions held by the
proposed program manager; the program manager*s experience was well known
within the Department of Defense; two other offerors proposed the same
program manager as having the desired experience; and the program
manager*s declaration supported the agency*s conclusions about his
experience.
3. Challenge to awardee*s past performance rating of *confidence* is
denied where the record shows that the rating was reasonable despite a
single negative past
performance questionnaire, which the agency considered in conjunction with
the awardee*s response to the concerns raised.
DECISION
The OMO Group, Inc. protests the award of a contract to RehabPlus Group,
Inc. under request for proposals (RFP) No. FA8901-04-R-0007, issued by the
Department of the Air Force for Family Advocacy Program (FAP) services.
OMO challenges the Air Force*s evaluation and award determination.
We deny the protest.
The RFP was issued as a competitive section 8(a) set-aside for personal
services to supplement FAP staff at Air Force medical treatment facilities
in the western continental United States. The FAP*s mission is to prevent
and treat child and spousal abuse utilizing qualified, master*s-level
clinical social workers, U.S.-licensed registered nurses, and other FAP
staff personnel. The RFP contemplated the award of a time-and-materials
contract for a base year with four 1-year options to the firm submitting
the proposal evaluated to represent the *best value.*
Proposals were to be evaluated under four factors: mission capability,
proposal risk, past performance, and price. When combined, the non-price
factors were significantly more important than price. Mission capability
and proposal risk were further divided into the following subfactors (in
descending order of importance): corporate experience, management, and
recruitment/retention plan. Proposals received one of four color ratings
for each subfactor under the mission capability factor: blue
(exceptional), green (acceptable), yellow (marginal), and red
(unacceptable). Under the proposal risk factor they were scored as high,
moderate, or low risk. Past performance was rated based on relevance
(very relevant, relevant, somewhat relevant, or not relevant) and
confidence (high confidence, significant confidence, confidence,
neutral/unknown confidence, little confidence, or no confidence). Under
the terms of the RFP, past performance of subcontractors proposed to
perform at least 25 percent of the proposed effort was considered in
addition to the prime contractor*s past performance. RFP S M002(e).
For the purpose of evaluating corporate experience, the RFP (as amended)
required offerors to submit a list of contracts; for each contract
offerors were to provide an *average vacancy fill rate,* which was defined
as *the average number of days direct health care positions were vacant
during the contract period of performance for each contract.* RFP S L
3.1. With regard to calculating the average vacancy fill rate, the RFP
explained that *only those positions that were actually vacant will be
used when computing the average vacancy fill rate.* RFP S L 3.1.
Offerors were required to format their information in the same manner as
in the following example, which was provided in the solicitation:
Contract Position Title No. of Times Calendar Days Vacant Average Days
Vacant Vacant
#1 Nurse 2 times 20 days/30 days = 50 25 days
days
A Dentist 0 times - A
A Social Worker 3 times 10 days/20 days/30 days 20 days
= 60 days
Average vacancy fill rate for contract #1 = 110 days/5 = 22 days
Contract Position Title No. of Times Calendar Days Average Days
Vacant Vacant Vacant
#2 Social Worker 1 time 10 days 10 days
Average vacancy fill rate for contract #2 = 10 days/1 = 10 days
In order to meet the corporate experience requirement, the RFP (as
amended) required offerors to meet the following minimum average vacancy
fill rates for all contracts provided within the last 4 years: (1) 30
days for contracts with a period of performance less than 1 year, (2) 60
days for contracts greater than 1 year but less than 2 years, and (3) 90
days for contracts with a period of performance greater than 2 years but
less than 4 years. RFP S M002(c)(1)(b). Prior to the amendment, the RFP
simply required an average vacancy fill rate of less than 90 days for all
contracts within the last 4 years.
With regard to the *management* subfactor, the RFP instructed offerors to
submit for their program manager--one of the key personnel required by the
RFP--a resume with dates of employment, places of employment, and job
descriptions. For the purpose of evaluating this subfactor, the RFP
stated as follows:
the minimum experience requirement for the Program Manager is two (2)
years within the last four years managing a multidisciplinary staff that
was providing direct health care. Two (2) years experience within the
last four years managing Military FAP staff, including processing and
managing the credentialing requirements of employees, is desirable.
RFP S M002(c)(2).
Under the *recruitment/retention plan* subfactor, offerors were required
to provide detailed information concerning their methods for recruiting
and retaining the number of personnel with the qualifications required
under the RFP. Proposals were to be evaluated based on the offeror*s
ability to recruit and retain qualified employees within the time
constraints of the solicitation, the offeror*s network capability to
recruit qualified personnel, the offeror*s plan for ensuring accuracy of
personnel qualifications, the offeror*s plan for processing and managing
of credentialing requirements, and its plan for retaining qualified
personnel to ensure uninterrupted service to patients.
Nine firms, including OMO and RehabPlus, submitted proposals. After
review of the proposals, the agency decided to make award based on initial
proposals without discussions. The final evaluations for OMO and
RehabPlus were as follows:
+------------------------------------------------------------------------+
|A |OMO |RehabPlus |
|-------------------------------------+-----------------+----------------|
|Mission Capability/Proposal Risk |A |A |
|-------------------------------------+-----------------+----------------|
| - Corporate Experience/Risk |Green/Low |Blue/Low |
|-------------------------------------+-----------------+----------------|
| - Management Plan/Risk |Blue/Low |Blue/Low |
|-------------------------------------+-----------------+----------------|
| - Recruitment/Retention Plan/Risk |Green/Low |Green/Low |
|-------------------------------------+-----------------+----------------|
|Past Performance |Confidence |Confidence |
|-------------------------------------+-----------------+----------------|
|Evaluated Price |$12,058,919.67 |$12,577,386.80 |
+------------------------------------------------------------------------+
The source selection authority reviewed the offerors* proposal ratings and
prices and based on this review determined that the higher technically
rated proposal submitted by RehabPlus was the best value and that it was
worth the 4.12 percent higher price when compared to OMO*s lower rated,
lower priced proposal. After receiving notice of the award and a
debriefing, OMO filed this protest.
In its protest, OMO principally argues that the awardee*s proposal should
have been found unacceptable because it did not meet the *average vacancy
fill rate* requirements of the solicitation; the Air Force unreasonably
evaluated the awardee*s proposed program manager under the management
subfactor; and the agency improperly evaluated the awardee*s past
performance.[1]
In reviewing protests against an allegedly improper evaluation and award,
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*s terms 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. Our review of the
record here provides no basis to question the reasonableness of the
agency's evaluationA of the awardee*s proposal or the award decision.
EVALUATION OF *AVERAGE VACANCY FILL RATE*
In challenging the agency*s evaluation of the awardee*s corporate
experience, OMO principally contends that RehabPlus did not meet the
minimum average vacancy fill rate requirements of the solicitation.
Specifically, OMO disputes the agency*s interpretation of the term
*vacancy* and how it calculated the awardee*s average vacancy fill rate as
a result of the allegedly flawed interpretation. According to OMO, when
the term *vacancy* is given its proper meaning under the solicitation, the
average vacancy fill rate for RehabPlus fails to meet the requirements of
the solicitation.[2]
The parties do not dispute the fact that the RehabPlus submitted all of
the information in the chart format required by the solicitation,
including, as identified for each contract: the positions under the
contract, the number of times each position was vacant, the number of
calendar days the position was vacant, and the average number of days that
the position was vacant. The heart of OMO*s complaint concerns the fact
that several of the positions listed in the awardee*s average vacancy fill
rate chart were listed as being vacant one time, yet for zero calendar
days. According to OMO, a vacancy for zero calendar days does not qualify
as a *vacancy* and should not have been used when calculating the
awardee*s average vacancy fill rate since the express terms of the
solicitation stated that *only those positions that were actually vacant
will be used when computing the average vacancy fill rate.* RFP S L 3.1.
OMO*s concern bears only on the acceptability of the awardee*s proposal
with regard to the average vacancy fill rate for contracts less than 1
year in duration. Under OMO*s interpretation, the awardee*s average
vacancy fill rate for contracts with a period of performance of less than
1 year would be computed as 31.76 days, exceeding the 30-day maximum
average vacancy fill rate permitted. Under the agency*s interpretation, a
position identified as being vacant one time, yet for zero calendar days,
constitutes a *vacancy* for the purpose of calculating the average vacancy
fill rate, so that the awardee*s average vacancy fill rate for contracts
less than 1 year in duration is 29.5 days, within the 30-day limit.[3]
Based upon our review of the record, the agency*s calculation of the
awardee*s average vacancy fill rate was reasonable and consistent with the
terms of the solicitation.
As an initial matter, while the solicitation does not define the term
*vacancy,* the fundamental purpose of calculating the average vacancy fill
rate was to evaluate an offeror*s ability to address personnel turnover in
a timely manner. This was an obvious concern of the agency given that the
solicitation was for the provision of professional staffing services
throughout the contract period. With this purpose in mind, the agency
maintains that when it calculated the average vacancy fill rate, it
included positions that were identified as being vacant even where the
period of the vacancy was listed as *zero,* because they represented
situations where a position was immediately filled, thus, in the agency*s
estimation, demonstrating good planning and management on the contractor*s
part.
In defense of its position, the protester attempts to paint the agency and
the awardee as inconsistent in their discussion of what it meant to have a
vacancy for zero calendar days. The protester notes that the agency
interpreted a zero calendar day vacancy to mean that the position
experienced a gap or lapse for some theoretical period of time, which was
less than 1 calendar day, while RehabPlus, on the other hand, explained in
its comments that when it reported a zero calendar day vacancy there was
no gap or lapse in service despite a change in personnel. OMO*s strained
effort to establish an inconsistency is unpersuasive. While the agency
couched its comments in terms of the change in the position, and RehabPlus
couched its comments in terms of performance of the required service, it
is apparent that there was no meaningful difference between their
positions. Both viewed the zero calendar day vacancy as accounting for a
situation where RehabPlus immediately replaced one employee that was
leaving with another. More important, however, is the fact that the
protester*s view, which excludes a zero calendar day vacancy from the
average vacancy fill rate calculation, would fail to credit RehabPlus with
taking action to immediately fill a position--an action that was clearly
desirable given the solicitation*s requirements and the evaluation scheme
adopted by the agency. As a consequence, we conclude that the agency*s
interpretation and actions in this regard were reasonable and consistent
with the solicitation.
EVALUATION OF PROGRAM MANAGER*S EXPERIENCE
OMO argues that the Air Force improperly evaluated RehabPlus under the
management subfactor. In evaluating this subfactor, the Air Force
concluded that the proposal submitted by RehabPlus had a strength because
the program manager proposed by RehabPlus met not only the minimum level
of experience, but also the desired experience identified in the RFP,
specifically, 2 years experience managing military FAP staff within the
last 4 years, including processing and managing the credentialing
requirements of employees. In support of its argument, OMO alleges that
the proposed program manager had at most 1 year of experience managing
military FAP staff within the last 4 years, including processing and
managing the credentialing requirements of employees. OMO alleges that
the program manager*s resume failed to establish the fact that he had the
desired experience. In addition, OMO highlights the fact that the
proposal submitted by RehabPlus states that its program manager only
*partially meets* the desired management criteria with 1 year of the
desired experience within the past 4 years. Awardee*s Proposal at 3, 11,
22 and 23.
The Air Force maintains that its evaluation of the program manager*s
experience was proper. According to the program manager*s resume, prior
to his retirement from the Navy as a Captain, he had served as the
Executive Officer for a Naval Medical Clinic from June 2001 through May
2004 and as a Navy Family Advocacy Coordinator from March 1999 to June
2001. In evaluating the program manager*s experience, the agency
indicates that, despite the statements in the awardee*s proposal, its
technical evaluators were familiar with the positions held by FAP
personnel among the different services and were aware that by virtue of
his Executive Officer position the program manager proposed by RehabPlus
had the desired experience. In addition, the agency notes that the
proposed program manager*s experience was well known throughout the Navy
and the Department of Defense. The agency also highlights the fact that
two other offerors proposed the same program manager and demonstrated that
he met the desired experience under the management subfactor. As a final
matter, the proposed program manager submitted a declaration in response
to the protest, which details his experience and establishes that he met
the desired experience for the management subfactor. Based on this
record, we conclude that the agency*s evaluation of the awardee*s program
manager was reasonable.
EVALUATION OF PAST PERFORMANCE
OMO asserts that the agency failed to properly consider negative past
performance information contained in a past performance questionnaire
submitted for the awardee*s subcontractor and that the agency should have
given RehabPlus a rating of either *little confidence* or *no confidence*
rather than the rating of *confidence.* OMO*s contentions are without
merit. In this regard, the agency considered a total of six contracts and
their corresponding questionnaires (three for RehabPlus and three for its
subcontractor). All of the awardee*s contracts were rated as *somewhat
relevant* and the questionnaires reflected overall performance ratings of
exceptional, very good, and satisfactory. Of the subcontractor*s three
contracts, two were considered highly relevant and one was considered
relevant. The questionnaire for the relevant contract reflected an
overall performance rating of exceptional, while performance for one of
the highly relevant contracts was rated very good.
In support of its argument, OMO focuses exclusively on the performance
questionnaire for the other highly relevant contract, which rated the
subcontractor*s overall performance between satisfactory and marginal and
rated the subcontractor unsatisfactory in response to a question regarding
how well the firm filled vacancies. In the face of this negative
information, the Air Force allowed RehabPlus to respond to the concerns
raised by the questionnaire. Based upon a detailed response submitted by
the subcontractor, the agency determined that the issues raised by the
questionnaire could be resolved with government oversight and direct
communication with RehabPlus. Thus, when it considered all the past
performance information for RehabPlus and its subcontractor, the Air Force
assigned RehabPlus a rating of *confidence* for past performance. While
OMO maintains that this rating was unjustified given the negative
information contained in the questionnaire, its concern amounts to little
more than mere disagreement with the agency*s decision and does not render
the rating unreasonable.[4] UNICCO Gov*t Servs., Inc., supra.
As a final matter, OMO argues that the agency failed to reasonably address
other information contained in the one negative questionnaire for the
awardee*s subcontractor. Specifically, the questionnaire asked, *Are you
aware of any other contracted efforts performed by this contractor similar
in nature to this contract? Please identify contract/program and point of
contact.* In response, the individual who prepared the questionnaire
stated, *It is my understanding the Army cancelled their contract with
[the subcontractor] for poor performance.* AR, Tab 15, unnumbered page
51. According to OMO, the agency failed to act reasonably because it did
not contact the individual who answered the questionnaire to obtain more
information about the alleged cancellation.
The Air Force states that it contacted an individual with Army Family
Programs, who advised that she was unaware of any cancellation, and also
called an employee with the *Defense Contracts office,* but the call was
not returned. Agency Response to the Protester*s Comments, August 30,
2004, at 6. The agency maintains that it did not seek further information
from the individual who prepared the questionnaire, since that person
worked for the Marine Corps, not the Army, and her answer in the
questionnaire was vague and reflected the fact that she did not have
direct knowledge of the circumstances of the situation. Based on these
facts, we conclude that the Air Force acted with reasonable diligence when
inquiring about the alleged cancellation for poor performance.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] In its comments on the agency report, the protester also challenged,
for the first time, the agency*s evaluation of the awardee*s
retention/recruitment plan by citing to information about the awardee*s
subcontractor*s history of providing timely staffing on prior contracts.
However, because this subfactor did not concern an offeror*s performance
on prior contracts but rather provided for the evaluation of an offeror*s
plan and network of staff for the recruitment and retention of qualified
personnel for the subject requirements, the protester*s arguments in this
regard are misplaced and without merit.
OMO also argued that the agency improperly evaluated proposals because the
Air Force wanted to hire the program manager proposed by OMO for a
different project and that the agency should have rated its *average
vacancy fill rate* as a strength. Because the protester failed to address
these issue in its various submissions filed subsequent to the agency*s
detailed responses addressing these allegations, we deem the issues
abandoned. Citrus College; KEI Pearson, Inc., B-293543 et al., Apr. 9,
2004, 2004 CPD P 104 at 8.
[2] OMO also argues that the agency did not apply the average vacancy fill
rate requirements set forth in the amended version of the RFP, but rather
applied the pre-amendment requirements. The agency specifically refutes
this allegation. Even assuming that the protester is correct, however,
the awardee met the minimum requirements as amended, as discussed below,
thus there is no prejudice associated with the alleged error.
[3] The difference in the calculations results from the fact that the
average vacancy fill rate under the solicitation equals the number of
calendar days a position is vacant (the numerator) divided by the number
of vacancies (the denominator). By including in this formula a position
that was vacant for zero days, the overall average necessarily decreases
since the numerator remains constant while the denominator increases by
one.
[4] OMO also argues that the agency failed to provide this negative
information to the source selection authority for its consideration. The
agency maintains that it acted properly by providing the source selection
authority with the evaluators* final integrated analysis of the awardee*s
past performance and rating of *confidence.* OMO does not point to any
violation of law or regulation or demonstrate how the agency*s actions
were contrary to the solicitation. Thus, we conclude that there was
nothing improper with the agency*s actions in this regard.