TITLE:  Sayres & Associates Corporation, B-295946; B-295946.2, April 25, 2005
BNUMBER:  B-295946; B-295946.2
DATE:  April 25, 2005
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   Decision

   Matter of: Sayres & Associates Corporation

   File: B-295946; B-295946.2

   Date:               April 25, 2005

   Robert M. Moore, Esq., Kristen A. Bennett, Esq., and Kelly L. Hellmuth,
Esq., Moore & Lee, LLP, for the protester.

   Brian W. Craver, Esq., Person & Craver LLP, for Navarro Research and
Engineering, Inc., an intervenor.

   Gena E. Cadieux, Esq., Patricia D. Graham, Esq., and Patricia A. Walters,
Esq., Department of Energy, for the agency.

   Sharon L. Larkin, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Agency properly excluded from consideration some of the protester's
descriptions of past performance and a late submitted reference, where the
descriptions exceeded the page limit set forth in the solicitation and the
agency made reasonable efforts to contact the reference but the reference
failed to timely respond.

   DECISION

   Sayres and Associates Corporation protests the award of a contract to
Navarro Research and Engineering, Inc., issued by the Department of Energy
(DOE) under request for proposals (RFP) No. DE-RP36-04FO94027 for
administrative and technical support services.  Sayres challenges the
evaluation of its past performance and the agency's selection of Navarro
for award.

   We deny the protest.

   The RFP, issued as a section 8(a) set-aside, provided for award of a
cost-plus-fixed-fee contract with performance-based incentive fees for a
2-year base period with three 1-year options.  The solicitation stated
that award would be made on a "best value" basis, considering technical
and price criteria, with the technical criteria being "predominant in
importance."  RFP S M.3.  The technical evaluation factors, listed in
descending order of importance, included staffing and management approach
(50 percent), technical approach (40 percent), and past performance (10
percent).  RFP S M.4.

   The RFP instructed offerors to "fully address" in their technical
proposals the areas identified as technical evaluation factors, and
advised them that failure to do so "may result in lower evaluation
scores."  Specifically with regard to past performance (the evaluation of
which is protested here), offerors were instructed to "fully discuss their
performance under existing and prior contracts" for both themselves and
any proposed subcontractors, and advised that "[p]articular attention
should be given to" five specific subfactors for past performance.  RFP S
L.16(c). 

   In addition, offerors were to complete "Reference Information Sheets" for
at least three contracts or subcontracts, performed within the last 3 to 5
years, that were similar in size and scope to the work required by the
solicitation.  These sheets were 1-page forms provided in the RFP that
sought general contract information (e.g., contract number, type, period
of performance, dollar value, contracting agency, and whether the contract
involved on-site support services), a description of the work, a list of
subcontractors and the percentage of work they performed, and contact
information for the references.  The RFP, as amended, provided that
technical proposals were limited to 20 pages, "exclusive of resumes and
Past Performance Reference Information Sheets."  RFP amend. 1, S L.16.  

   Thirty-four offerors, including Sayres and Navarro, submitted proposals in
response to the RFP.  For those proposals that exceeded the page
limitation, the agency did not consider the excess pages.  In this regard,
in addition to its 20-page technical proposal and Reference Information
Sheets, Sayres submitted as an attachment to its proposal additional
documents, including a descriptive overview of its past performance and
detailed descriptions of how each of its identified contracts met the past
performance criteria.  Agency Report (AR), Tab C.2, Sayres' Technical
Proposal, attach. B.  The agency did not consider this additional
descriptive information in its evaluation of Sayres' proposal.   

   Sayres had also proposed to perform the work with a subcontractor, and
provided the agency with a list of past performance references for both
itself and its subcontractor, which the agency contacted by e-mail on
December 2, 2004.  The agency claims that none of Sayres' references
responded; only two references for the subcontractor responded, which the
agency considered in its evaluation.  The agency made further attempts to
contact Sayres' references, and although one of those references responded
by e-mail on January 27, 2005 at 8:42 p.m., the agency determined that
this was received too late in the evaluation to be considered.[1] 

   Nonetheless, DOE gave Sayres' proposal the highest relative technical
score (880 out of a possible 1,000 points) and gave Navarro's proposal the
second-highest technical rating (810 points).[2]  The agency determined
that the "principal technical differences" between the two proposals were
in the proposed project managers (which was considered under the personnel
management subfactor of the staffing and management approach factor)[3]
and in past performance.  With regard to past performance, Sayres'
proposal received a score of 8 (good) while Navarro's proposal received a
score of 9 (excellent).  The agency found that, although neither proposal
warranted weaknesses under this factor, Navarro had provided "more
examples of excellent past performance on DOE and other contracts than did
Sayres."  AR, Tab B.9, Source Selection Statement, at 4.  These
assessments were based on the descriptive information offerors provided in
the 20 pages of their technical proposals concerning their past
performance, questionnaires the agency received from references concerning
the offerors' and their subcontractors' performance, and contract
performance assessment reports that DOE obtained from a National Institute
of Health database.  AR at 12-13. 

   The record reflects that Sayres proposed a cost of $18.8 million, which
DOE adjusted to $18.7 million in its most probable cost (MPC) analysis,
and that Navarro proposed a cost of $16.8 million, which DOE adjusted to
$17.3 million.  As recognized by the agency, this translated into a $1.4
million cost differential based on the MPC analysis. 

   After considering the relative advantages and disadvantages of both
proposals, the source selection authority determined that the technical
differences between these two proposals were "minimal," and that:

   no advantage would accrue to the Government by selecting [Sayres']
highest-scored technical proposal at a higher price.  [Navarro's] second
highest-scored technical proposal represents the best value to the
Government because it offers an acceptable level of technical capability
at a significantly more advantageous price, as described above.  I have
considered the benefits offered by the highest-scored technical proposal
from Sayres in relation to the higher price associated with that proposal
and I conclude that those technical advantages are not worth the
additional costs.

   *   *   *   *   *  

   While the technical differences between the top two highest scored
proposals are minimal, the cost differential is significant and warrants
selection of Navarro over the higher technically scored proposal from
Sayres.

   AR, Tab B.9, Source Selection Statement, at 4-5.  Award was made to
Navarro and this protest followed.

   Sayres protests the evaluation of its past performance, complaining that
the agency failed to consider the descriptive information it provided as
an attachment to its proposal, as well as information submitted by its
references.[4]

   With regard to the descriptive information not considered by DOE, as noted
above, Sayres provided this information as an attachment to its proposal. 
Because these pages exceeded the proposal page limit established by the
RFP, the agency did not consider them.  Sayres contends that the RFP
contemplated that descriptive information such as this would be excluded
from the proposal page limit as it was contemplated by the Reference
Information Sheets.  Although the Reference Information Sheets did in fact
contain a block where offerors were to provide a "description of work,"
Sayres completed this block.  The pages not considered, about which Sayres
complains, were separate from these forms and contained information such
as how Sayres' past performance satisfied the past performance subfactors,
which information was required by the RFP to be contained within the 20
pages of the proposal.  See RFP SS L.16(b)(2), (c)(3).  Furthermore, in an
amendment to the RFP, offerors were advised that past performance
descriptions were to be part of the proposal and were subject to the
proposal page limit.  RFP amend. 1, Q&A 28 ("Are past performance
descriptions included in the 20 page limit for Vol. 2? . . . Yes").  Since
the agency's failure to consider this information was consistent with the
RFP's requirement, and consistent with how it treated other offerors whose
proposals exceeded the page limit, we find no basis to question DOE's
evaluation in this regard.  See Centech Group, Inc., B-278904.4, Apr. 13,
1998, 98-1 CPD P 149 at 5.

   Sayres also complains that the agency failed to consider past performance
information submitted by its references.  In support of its protest, it
provided to our Office affidavits from two individuals who claim to have
submitted completed questionnaires to the agency in late January 2005, but
provided no evidence of transmission such as an e-mail or copy of the
questionnaire, and no detail concerning the content of the information
assertedly submitted.  The agency denies receiving information from these
individuals and has provided relevant portions of its "electronic gateway
log" to demonstrate that e-mails from these individuals were never
received.[5]  The agency acknowledges that a third individual submitted a
questionnaire on January 27, 2007 at 8:42 p.m., but, as noted above, this
was not considered because it was submitted too late.  The agency also
explains that, even if considered, it merely confirmed positive
performance under the referenced DOE contract, which the agency had
already recognized in its evaluation and which contributed to Sayres'
"good" rating for past performance.

   Based on the record, we are not persuaded that the agency received past
performance information from two of the references as asserted by Sayres,
or that DOE improperly failed to consider the questionnaire received from
a third.  In this regard, the agency made repeated attempts to contact the
references, including documented e-mail attempts on December 2, 2004 and
on January 26, 2005,[6] but the references either did not respond or, in
the case of the DOE reference, did not respond in a timely fashion. 
Although Sayres complains that the agency failed to take additional steps
between December 2 and January 26 to contact the references, an agency is
not required to make multiple attempts to contact past performance
references.  See OSI Collection Servs., Inc.; C.B. Accounts, Inc.,
B-286597.3 et al., June 12, 2001, 2001 CPD P 103 at 9 (agency's single
attempt to contact protester's reference found reasonable).  An agency
need only make a reasonable effort to contact a reference, and where that
effort proves unsuccessful--such as here, where the information either was
not received or was received too late in the evaluation to be reasonably
considered--it is unobjectionable for the agency to proceed with the
evaluation without benefit of that reference's input.[7]  See Lynwood
Mach. & Eng'g, Inc., B-285696, Sept. 18, 2000, 2001 CPD P 113 at 5.

   Finally, Sayres complains that the agency's best value analysis was flawed
because the agency gave too much weight to Navarro's lower price, and
minimized or disregarded Sayres' higher technical rating.  As discussed
above, the agency recognized the technical strengths in Sayres' proposal,
but did not find those advantages to be worth the $1.4 million (based on
MPC estimates) cost premium associated with Sayres' proposal.[8]  While
Sayres asserts that this cost premium is not significant, we find that the
agency's conclusion is reasonable; consistent with the best value
evaluation scheme, which gave predominant weight to the technical factors;
and sufficiently documented in the record.  Based on our review, we find
that the agency reasonably selected the lower-priced, lower technically
rated offer for award.[9]

   The protest is denied.

   Anthony H. Gamboa

   General Counsel 

   ------------------------

   [1] The source selection statement was dated January 28.   

   [2] The technical scores were derived from Sayres' ratings of 8s and 9s on
a 10-point scale for the staffing and management approach factor, 9 for
the technical approach factor, and 8 for past performance.  Navarro's
proposal received ratings of 8 for the first two technical evaluation
factors, and 9 for past performance.  AR, Tab B.2, Technical Evaluation,
at 1, 5.  Under the evaluation scheme, ratings of 9 and 10 were
"excellent," ratings of 6 to 8 were "good," ratings of 3 to 5 were
"satisfactory," ratings of 1 and 2 were "marginal, and a rating of 0 was
"poor."  AR, Tab A.1, Source Selection Plan, at 9. 

   [3] The agency noted that Sayres had proposed an "exceptionally qualified
project manager," which led to a rating of 9 out of a possible 10 points
(excellent) under the personnel management subfactor, but found that
Navarro proposed a "very well qualified project manager," albeit one with
less knowledge of relevant programs.  Thus, the agency assigned Navarro's
proposal a lower rating of 8 (good) under this subfactor.  AR, Source
Selection Statement, at 3.  

   [4] Sayres initially protested the technical evaluation of its proposal,
but abandoned this issue when it failed to respond in its comments to the
agency's arguments in the agency report.  Planning Sys., Inc., B-292312,
July 29, 2003, 2004 CPD P 83 at 6. 

   [5] Although Sayres complains that the log does not cover the relevant
period because it ends on January 21, 2005, one of Sayres' references
claims to have sent its response to the agency on January 18, which is
within the relevant period but is not reflected on the log as having been
received, and the other reference states only that it provided information
sometime in "late January" and provides no additional detail concerning
the details of transmission.       

   [6] DOE's e-mail on January 26, 2005 requested that the references respond
"today if possible."  See e.g., AR, Tab B.8.2, E-mail from DOE to Sayres
Reference, at 1.     

   [7] Furthermore, even had the agency considered the questionnaire received
on January 27, it does not appear that it would have made any difference
in the evaluation of Sayres' past performance, and thus Sayres was not
prejudiced even if the agency erred. 

   [8] Sayres initially protested that Navarro's costs were not reasonable or
realistic.  However, after the agency completely explained how it
evaluated those costs, Sayres did not refute this explanation, but
asserted that the agency had not squarely addressed its protest grounds
and that cost differences between the proposals were not significant as
found by the agency. 

   [9] Sayres also complains that DOE failed to comply with portions of its
source selection plan that required DOE to evaluate past performance prior
to cost.  The plan, however, is an internal agency guide that does not
give the parties any rights; it is the evaluation scheme in the RFP, not
internal agency documents such as source selection plans, to which an
agency is required to adhere in evaluating proposals and making the award
selection.  Islandwide Landscaping, Inc., B-293018, Dec. 24, 2003, 2004
CPD P 9 at 4.