TITLE: TekStar, Inc., B-295444; B-295444.2, February 18, 2005
BNUMBER: B-295444; B-295444.2
DATE: February 18, 2005
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Decision
Matter of: TekStar, Inc.
File: B-295444; B-295444.2
Date: February 18, 2005
Robert Gardner, Esq., for the protester.
William A. Roberts, Esq., Steven N. Tomanelli, Esq., and Joseph E. Ashman,
Esq., Wiley Rein & Fielding, for Chugach McKinley, Inc., an intervenor.
Maj. Lawrence M. Anderson and Capt. Byron G. Shibata, Department of the
Air Force, for the agency.
Linda C. Glass, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Challenge to the exclusion of the protester's proposal from the
competitive range is denied where the record shows that the evaluation was
reasonable and consistent with the evaluation criteria announced in the
solicitation.
DECISION
TekStar, Inc. protests the exclusion of its proposal from the competitive
range under request for proposals (RFP) No. F65501-03-R-0002, issued by
the Department of the Air Force for services to provide base operations
and support for Eareckson Air Station in Alaska. TekStar contends that
the agency improperly evaluated its proposal.
We deny the protest.
BACKGROUND
The RFP, issued on May 17, 2004, as a competitive section 8(a) total
set-aside, contemplated the award of a cost-plus-award-fee contract for a
2-month transition period and a 6-month base period with up to seven
1-year option periods. The performance work statement (PWS) provided a
description of the contract requirements that covered the operations and
maintenance of the airfield and its support infrastructure. The RFP also
included Interservice Support Agreements (ISSA) that identified
requirements to provide other tenants at Eareckson with base support,
facilities, and utilities for their equipment at Eareckson.[1]
The RFP provided that award was to be made on a best value basis. The RFP
listed the following evaluation factors and subfactors:
Factor 1: Mission Capability Factor:
Subfactor 1: Management Approach
Subfactor 2: Technical Approach
Subfactor 3: Facilities Operation and Maintenance
Subfactor 4: Mission Support Services
Factor 2: Proposal Risk
Factor 3: Past Performance
Factor 4: Cost/Price
RFP P 3.1.
Under the RFP, the mission capability, proposal risk, and past performance
factors were equal in importance and each of those factors was more
important than the cost/price factor. The RFP stated that all
requirements specified in the solicitation were mandatory and that each
offeror's proposal submission should represent how that firm would perform
all the requirements specified in the solicitation. RFPA PA 4.1.3.
Offerors were advised to prepare their proposals in an orderly format and
in sufficient detail to enable the government to make a thorough
evaluation of the contractor's technical competence and ability to comply
with the contract task requirements specified in the PWS. RFP P 4.2.1.
Two offerors, TekStar and Chugach McKinley, Inc. (CMI) submitted proposals
by August 2. A source selection evaluation team (SSET) evaluated the
proposals. While TekStar submitted the lowest-cost proposal, the SSET
found numerous deficiencies and significant weaknesses in TekStar's
proposal and found that the proposal contained no strengths. The SSET
concluded that TekStar's proposal was unacceptable under the mission
capability factor and that its proposal presented a high performance
risk. The SSET found that TekStar's proposal was incomplete and did not
demonstrate TekStar's understanding of the requirements. Consequently,
based on the SSET's findings, the source selection authority determined
that TekStar's proposal should not be included in the competitive range.
The Air Force subsequently notified TekStar on August 27 that its proposal
was not included in the competitive range. After receiving a debriefing,
TekStar filed an agency-level protest on September 24. The agency denied
TekStar's protest and TekStar filed its protest with our Office on
November 19.
ISSUE AND ANALYSIS
TekStar challenges the evaluation of its proposal and maintains that the
agency's determination not to include TekStar's proposal in the
competitive range, leaving only CMI's proposal in the competitive range,
was unreasonable.
The determination of whether a proposal is in the competitive range is
principally a matter within the discretion of the procuring agency.
Dismas Charities, Inc.,
B-284754, May 22, 2000, 2000 CPD P 84 at 3. Our Office will review an
agency's evaluation of proposals and determination to exclude a proposal
from the competitive range for reasonableness and consistency with the
criteria and language of the solicitation and applicable statutes and
regulations. Novavax, Inc., B-286167, B-286167.2, Dec. 4, 2000, 2000 CPD
P 202 at 13. Here, as explained in greater detail below, we conclude that
the evaluation of TekStar's proposal and the decision to exclude its
proposal from the competitive range were reasonable and consistent with
the terms of the solicitation. The record supports the agency's
determination that TekStar's proposal was unacceptable and presented a
high performance risk under the mission capability factor.
Initially, TekStar argues that the agency improperly relied on the PWS,
rather than on sections L and M of the RFP, as the basis for the
evaluation of TekStar's proposal. TekStar maintains that it was cited for
deficiencies and weaknesses related to its failure to address the entire
set of PWS task requirements even though section L of the RFP purportedly
directed offerors to only address specific elements of the work covered
under the RFP. We think the protester's reading of the RFP is wrong.
Contrary to the protester's position, the RFP required contractors to
provide all personnel, vehicles, tools, supervision, and other items and
services necessary to perform operation and maintenance requirements at
Eareckson. RFP S 1, Description of Services. Tasks described and
responsibilities assigned throughout the PWS were stated as being the
minimum essential for acceptable contractor performance and mission
accomplishment. Id. The solicitation further provided that offerors were
to provide support and services to other entities on Eareckson as
specified in certain listed ISSAs. RFP P 1.4.10.2. The solicitation
further stated that all requirements specified in the solicitation were
mandatory and that proposal submissions should represent how a company
would perform all the requirements specified in the solicitation. RFP P
L.4.1.3. In addition, as will be shown below, under each subfactor, both
sections L and M of the RFP were unambiguous in requiring offerors to
address all solicitation requirements.
Management Approach
For the management approach subfactor under the mission capability factor,
offerors were to explain their comprehensive management approach to
accomplish the requirements identified in the PWS. RFP P 4.2.3.1.1.1.
Further, the RFP provided that an offeror's proposal was to be evaluated
based on its proposed staffing levels and skill mix to ensure successful
management and execution of the program, personnel, training, quality
control, and transition. The evaluators concluded that TekStar's level of
staffing and the multi-tasking of a number of key personnel demonstrated
that it did not clearly understand the complexity of the requirements.
The evaluators found that TekStar's management approach was inadequate to
address the contract requirements. Specifically, the evaluators found
that TekStar did not satisfy personnel requirements in a number of areas.
For example, TekStar did not meet the requirements for security personnel,
for a full-time emergency medical technician (EMT), and for a fire
department.
TekStar specifically argues that the one major deficiency cited by the
evaluators--that it proposed only six security force personnel as opposed
to the 24 security personnel that the agency estimated were necessary to
staff security requirements-- was the result of a poorly worded RFP
requirement. TekStar correctly argues that the solicitation did not
specifically state that 24 security personnel were required. However, as
the agency points out, the RFP did state that a security office force
consists of a shift supervisor, a security controller/alarm
monitor/dispatcher, a twoa**person external security response team, and a
two-person internal security response, for a total of six security
personnel. Ground-Based Midcourse Defense (GMD)-ISSA at 21. Further,
under the RFP, security officers were to maintain security operations 24
hours a day, 7 days a week, and 365 days per year. Due to safety
concerns, security personnel in the performance of their duties were not
allowed to work consecutive shifts or allowed to work an unacceptable
period of consecutive days (14 days) without time off. Additionally,
under other than emergency conditions, shifts could not exceed 12 hours in
duration. Id. Thus, given the RFP requirements, we think the agency
reasonably concluded that the security personnel requirements could not be
met by six security personnel as proposed by TekStar.
Similarly, the RFP required one Alaska State Emergency Medical Technician
(EMT) on duty at all times. TekStar proposed only one EMT without
indicating how it would meet the requirement for 24-hour coverage. The
agency concluded that TekStar's proposal of one EMT did not address the
need for 24-hour coverage, allowing for shifts, vacations, or illness, and
thus TekStar's proposed staffing represented a significant life safety
concern, given the Air Station's remote location.
TekStar also argues that it was improperly downgraded for proposing only a
fire brigade instead of a 30-person full-time fire department. TekStar
contends that the RFP did not state that it was the contractor's
responsibility to maintain a full-time fire department. While the
protester is correct that the PWS only required offerors to establish and
train a fire brigade from the existing workforce, the ISSA contained an
independent requirement to provide a full-time fire department and rescue
crew for structural fire operations. GMD-ISSA at 14. The protester
maintains that offerors were never advised that they were responsible for
all, or any, of the requirements in the GMD-ISSA. However, as discussed
above, the RFP specifically stated that offerors were required to provide
services to Eareckson's tenants in accordance with the ISSA. RFP P
1.2.10.1.1. We think the agency reasonably concluded that TekStar failed
to meet this requirement.
The evaluators also cited numerous deficiencies with respect to TekStar's
quality control approach. For example, the agency did not believe that
TekStar had proposed adequate management oversight at a level needed to
address quality control issues, had concerns regarding TekStar's emphasis
on employee-level inspections, questioned the staffing for these
inspections, and found that TekStar failed to provide descriptive
information on how these inspections would be conducted. TekStar
generally disagrees with the agency and cites several provisions of its
proposal where it allegedly addressed the agency's concerns. However,
based on our view of the record, we find reasonable the agency's
conclusion that TekStar had not adequately addressed quality control
requirements in the above-identified ways.
Finally, due to the sensitivity of information handled by Air Station
personnel and the types of missions performed by Eareckson personnel, the
RFP required that "employment on [Eareckson Air Station] shall be limited
only to those contractor employees who have been determined trustworthy as
a result of the favorable completion of a National Agency Check." RFP
amend. 8, P 1.4.8.1. The agency concluded that it was not clear from
TekStar's proposal whether the firm committed to having all of its
employees at Eareckson undergo a National Agency Check. In fact, TekStar
states in its proposal that only certain employees requiring unescorted
entry to "controlled areas" would have a current favorable completed
National Agency Check. TekStar's Proposal atA 88.
In our view, the record provides a reasonable basis for the evaluators'
concerns regarding the adequacy of TekStar's proposal under the management
approach subfactor and we have no basis to object to the determination
that TekStar's proposal was unacceptable under this subfactor.
Technical Approach
For the technical approach subfactor under the mission capability factor,
among other things, offerors were to describe how
communications-electronics systems would be maintained, the procedures for
physical security at all facilities, and how airfield facilities would be
inspected. RFP P 4.2.3.2. The RFP provided that offerors would be
evaluated on the ability and methodology for maintaining the
communications equipment, the soundness and credibility of the approach
for physical security, the approach to maintaining the airfield
facilities, and the procedures for acquiring compliance assessment
protocol-trained personnel. RFPA PA M.4.1.2.
TekStar was rated unacceptable under this subfactor. The evaluators found
that Tekstar failed to demonstrate that it possessed sufficient knowledge
necessary for the operation and maintenance of all
communications-electronics systems. The evaluators found that TekStar
used outdated government documentation for airfield operations
methodology, along with insufficient staffing and improper
crossa**utilization of personnel. The evaluators concluded that TekStar's
overall operations and maintenance plan would work only if all
requirements were identified and used to calculate personnel, logistics
and spares, and operational costs and time management for support
functions, but that TekStar had not addressed all requirements.
While TekStar admits that it identified outdated government documentation,
it generally disagrees with the agency evaluation and again maintains that
it developed its proposal to respond to the requirements as identified in
section L of the RFP and not every individual PWS requirement. As
previously stated, offerors were required to demonstrate their ability to
satisfy the requirements of the RFP. As with its challenge to its
evaluation under the management approach subfactor, TekStar has provided
no basis for our Office to object to the evaluation under the technical
approach subfactor. We think the record shows that the agency evaluators
had reasonable concerns with TekStar's technical approach and that the
agency reasonably concluded that TekStar's proposal was unacceptable under
this subfactor.
Facilities Operation and Maintenance
For the facilities operation and maintenance subfactor under the mission
capability factor, for power production/generation systems, offerors were
to provide a maintenance schedule and an inspection plan describing
preventive and corrective actions. For facilities, offerors were to
describe how the recurring work plan would be developed and how work would
be scheduled and controlled. Offerors were to describe how numerous
functions would be accomplished, including:
Describe how HVAC systems will be operated and maintained, including plans
for reducing energy consumption. Describe how sewage will be handled
during sewage lagoon maintenance and/or failures. Provide a corrosion
control plan, including procedures to remove existing corrosion, prevent
and repair future prevention training, fire safety inspections, and any
maintenance or repairs to fire systems. Demonstrate how the snow removal
workload will be integrated into the rest of the facilities operation and
maintenance workload. Describe how utility systems will be operated and
maintained. Describe how simultaneous projects will be conducted.
RFP PP L.4.2.3.3.1, L.4.2.3.3.2.
The RFP provided that offerors were to be evaluated on their ability and
methodology for ensuring that power is maintained and available to meet
the Eareckson mission and their ability and methodology for ensuring that
the facilities' infrastructure is maintained.
TekStar was rated unacceptable for this subfactor. The evaluators found
TekStar's proposed staffing for adequate operation and maintenance of the
active facilities was insufficient. Additionally, TekStar failed to
address several requirements for operating and maintaining the water
distribution system, the sewer collection system, and the fire sprinkler
system, and TexStar failed to provide required exterior paint and floor
covering plans for the buildings.
TekStar concedes that it did not address the specific requirements
identified by the agency evaluators, but argues that it was not required
to do so by the solicitation. Protest attach. 2, at 5-12. Again, as
quoted above, we believe the RFP was clear that offerors were to address
the operation and maintenance of facilities, as well as the utility
systems. TekStar simply failed to do so in its proposal.
Mission Support Services
For the mission support services subfactor under the mission capability
factor, offerors were, among other things, to describe procedures for the
inventory and control of government-furnished equipment and materials, to
describe the procedures for housekeeping and how common areas and visitor
rooms would be integrated into site workload, and to describe how
billeting and food services would be provided. RFP P L.4.2.3.4. Offerors
were to be evaluated on their ability and methodology for ensuring the
mission support services assets would be maintained and available to meet
the mission requirements. RFP P M.4.1.4.
The agency rated TekStar's proposal unacceptable under this subfactor.
Some of the deficiencies and significant weaknesses cited by the
evaluators included TekStar's failure to propose an ambulance for medical
emergencies, its failure to address a requirement for a barge, its failure
to address housekeeping or janitorial services, and its proposal of only
one snow-removal vehicle.
TekStar states that it did not propose an ambulance because it intended to
use the government-furnished ambulance identified in the RFP. However, it
failed to explain its approach in its proposal. TekStar admits that it
proposed only one multipurpose snow removal vehicle, but argues that the
five dump trucks with snow-plow mounts and snow-sweeper mounts it did
propose would be sufficient for snow removal. TekStar also admits that it
did not address the requirement for a barge, but maintains that it did
commit to transporting vehicles to the island and a barge was the only
reasonable way to do so. Lastly, TekStar contends that it addressed
housekeeping and janitorial services under another section of its proposal
dealing with providing billeting services. However, as the agency points
out, billeting services are separate from janitorial services and the ISSA
specifically required offerors to provide custodial support for offices
and common use areas twice weekly. GMD-ISSA at 10. As with the other
subfactors, the agency reasonably concluded that TekStar simply did not
adequately address in its proposal the mission support requirements,
especially with respect to the requirement for an ambulance, a barge,
housekeeping and janitorial services, and snow removal.
In sum, the record shows that TekStar submitted a materially deficient
proposal that did not meaningfully address major portions of the PWS.
Since under the terms of the RFP the protester was responsible for
providing, within the four corners of its proposal, a full discussion of
its mission capability approach, the protester must suffer the
consequences of its failure to do so, that being the determination by the
agency not to include its proposal in the competitive range because the
protester failed to demonstrate in its proposal its understanding of the
RFP requirements. See, Chek F. Tan & Co., B-277163, Sept. 8, 1997, 97-2
CPD P 66 at 5. Based on the record, notwithstanding its lower-cost
proposal, we believe the agency reasonably excluded TekStar's unacceptable
proposal from the competitive range.
Finally, to the extent that TekStar objects that, as a result of not
including its proposal in the competitive range, the agency had only one
proposal in the competitive range, we point out that Federal Acquisition
Regulation S 15.306(c)(1) states that a competitive range is generally to
be comprised of all the most highly rated proposals. That provision
permits an agency to exclude a proposal from the competitive range where
it is determined to have no reasonable prospect of award, even where its
exclusion will result in a competitive range of one proposal.
SDSA Petroleum Prods., Inc., B-280430, Sept. 1, 1998, 98-2 CPD P 59 at 5.
On this record, we have no basis to question the reasonableness of the
agency's determination here to include only CMI's proposal in the
competitive range.[2]
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] Eareckson is located on Sheymya Island in the northern Pacific Ocean,
approximately 1,500 miles from Anchorage, Alaska.
[2] TekStar asserts that the agency improperly attributed the past
performance of affiliated companies to CMI and that CMI itself did not
have relevant past performance. The record shows that CMI's past
performance evaluation was based on past performance information for the
incumbent, a CMI affiliate, and CMI's major subcontractor's key personnel
who have relevant experience. Past Performance Evaluation at 5. The
agency noted that the management and employees of the incumbent, a CMI
affiliate, will be [DELETED] and that CMI's major subcontractor, also a
joint venture partner with the incumbent, will be [DELETED] of the
requirement. Even if we agreed with the protester that CMI received a
more favorable past performance rating than it was entitled to, there is
nothing in the record that suggests that this would affect the competitive
range determination.