TITLE: B-296435.5; B-296435.10, Nu-Way, Inc., September 28, 2005
BNUMBER: B-296435.5; B-296435.10
DATE: September 28, 2005
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B-296435.5; B-296435.10, Nu-Way, Inc., September 28, 2005
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: Nu-Way, Inc.
File: B-296435.5; B-296435.10
Date: September 28, 2005
John Lukjanowicz, Esq., Oles Morrison Rinker & Baker LLP, for the
protester.
Harold M. Nelson, Big Sky Mobile Catering, an intervenor.
Byron W. Waters, Esq., Department of Agriculture, for the agency.
Louis A. Chiarella, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest that agency unreasonably evaluated the protester's technical
proposal as unacceptable under evaluation factor relating to proposed
equipment is denied where the protester's proposal was ambiguous regarding
whether the offered equipment met one of the material requirements in the
solicitation.
2. Protest alleging that, in its evaluation of the protester's proposal,
the agency unreasonably ignored information that was "too close at hand"
(but not contained in the protester's proposal) is denied where the
information in question bears on whether the protester's proposed
equipment satisfied the technical requirements of the solicitation, and
thus by nature could vary in response to the individual solicitation.
3. Protest that agency should have engaged in clarifications with
protester to resolve material ambiguity in its proposal is denied since
any such exchange would have constituted discussions, not clarifications,
and agency generally has no obligation to hold discussions where, as here,
it put offerors on notice of its intent to make award on the basis of
initial proposals.
DECISION
Nu-Way, Inc. protests the decision by the National Interagency Fire
Center, Forest Service, Department of Agriculture, not to award Nu-Way a
contract under request for proposals (RFP) No. 49-05-07 for mobile food
services. Nu-Way argues that the agency's evaluation of proposals,
including the evaluation of its technical proposal, was improper.
We deny the protest.
BACKGROUND
The RFP, issued on February 9, 2005, contemplated multiple awards of
fixed-price requirements contracts for a base year and four 1-year
options. The successful contractors under the RFP would be required to
provide hot and cold meals and various supplemental items at 27 field
locations (referred to as designated dispatch points, or DDPs) during
wildland fires and other types of activities throughout the contiguous
western United States and Alaska by means of mobile food service units
(MFSU). The solicitation permitted offerors to propose for multiple DDPs,
but contemplated the award of one contract for each location.
In addition to price, the solicitation identified the following technical
evaluation factors in descending order of importance: proposed equipment,
past performance, experience, and technical approach. The RFP informed
offerors that the technical factors, when combined, were approximately
equal in importance to price. Contract awards were to be made to the
offerors submitting the proposals determined to meet the minimum
requirements of the solicitation and to be the most advantageous (i.e.,
"best value") to the government. Relevant to the protest here, the RFP
also stated that contract awards might be made without discussions. RFP
sect. M.2, at 105.
The RFP contained detailed instructions for the preparation of proposals,
and required that the offerors' proposals consist of two parts--a
technical proposal and a business/price proposal. Offerors were instructed
that the technical proposals would be used to determine, among other
things, whether the proposals met the requirements of the RFP. In this
regard, the RFP required that offerors "clearly and concisely provide"
written specifications and drawings of the MFSU offered, "indicating
equipment location, traffic flow, layout, size, and capacity of the unit."
RFP sect. L.6, at 101. The RFP also established minimum equipment
requirements for an MFSU, and required offerors to complete an equipment
requirements checklist for each unit offered. RFP sect. C.3, at 21-27;
exh. M.2, at 112-18. The solicitation stated that the equipment
requirements would be evaluated on a pass/fail basis, and that "any unit
that fails to meet any of these minimum requirements will be unacceptable
and may not be considered any further." RFP, exh. M.2, at 112.
Twenty-five offerors, including Nu-Way, submitted proposals by the March
11 closing date. Nu-Way offered one MFSU for three DDP locations.[1] An
agency technical evaluation board (TEB) evaluated the offerors' technical
proposals using an adjectival rating system: exceptional, acceptable,
marginal, or unacceptable for those technical factors other than past
performance; and exceptional, acceptable, neutral, marginal, or
unacceptable for past performance.[2] The TEB completed its evaluation of
the offerors' technical proposals on June 2. The TEB's ratings of Nu-Way's
proposal were as follows: unacceptable for proposed equipment; acceptable
for past performance; acceptable (+) for experience; excellent for
technical approach; the proposal's overall rating was marginal (+). AR,
Tab 12, TEB Consensus Report, at 2. The TEB rated Nu-Way's proposal as
unacceptable under the proposed equipment factor based on its
determination that Nu-Way had failed to demonstrate compliance with all
minimum equipment requirements of the solicitation. Id. at 14.
The TEB subsequently considered the offerors' evaluated prices and
technical ratings, and made award recommendations for each DDP. AR, Tab
13, TEB Best Value Analysis Report. The contracting officer then concurred
with the TEB's recommendations, decided not to conduct discussions with
offerors, and forwarded the award recommendations and associated materials
to the agency's source selection authority for review and approval. AR,
Tab 14, Source Selection Decision; Contracting Officer's Statement, July
19, 2005, at 7. The source selection authority accepted the findings and
recommendations of the TEB and made contract award to 12 offerors for 21
DDPs. AR, Tab 14, Source Selection Decision. Nu-Way was not selected to
receive any awards. These protests followed. The agency has authorized the
offerors who had received awards to begin performance notwithstanding the
protests, based on a written determination that urgent and compelling
circumstances significantly affecting the interests of the United States
would not permit waiting for the decision of our Office. See 31 U.S.C.
sect. 3553(d) (2000).
DISCUSSION
Nu-Way first protests the agency's evaluation of its technical proposal
under the proposed equipment factor. Specifically, Nu-Way argues that the
Forest Service unreasonably determined that its proposal was unacceptable
for failing to meet a minimum equipment requirement, namely, sufficient
"gray water" storage capacity.[3] The protester contends that its proposal
clearly reflected that its MFSU possessed a gray water storage capacity
that exceeded the requirements of the RFP, and the agency's erroneous
conclusion to the contrary improperly resulted in Nu-Way's
disqualification from contract award consideration.
Where a protester challenges an agency's evaluation of a proposal's
technical acceptability, our review is limited to considering whether the
agency's judgment was reasonable and consistent with the stated evaluation
criteria and applicable procurement statutes and regulations. See Knoll,
Inc.; Steelcase, Inc., B-294986.3, B-294986.4, Mar. 18, 2005, 2005 CPD
para. 63 at 3. Clearly stated RFP technical requirements are considered
material to the needs of the government, and a proposal that fails to
conform to such material terms is technically unacceptable and may not
form the basis for award. Id.; National Shower Express, Inc.; Rickaby Fire
Support, B-293970, B-293970.2, July 15, 2004, 2004 CPD para. 140 at 4-5.
An offeror is responsible for affirmatively demonstrating the merits of
its proposal and risks the rejection of its proposal if it fails to do so.
HDL Research Lab, Inc., B-294959, Dec. 21, 2004, 2005 CPD para. 8 at 5. As
with any evaluation review, our chief concern is whether the record
adequately supports the agency's conclusions. Innovative Logistics
Techniques, Inc., B-275786.2, Apr. 2, 1997, 97-1 CPD para. 144 at 9. A
protester's mere disagreement with the agency's judgment does not
establish that the evaluation was unreasonable. C. Lawrence Constr. Co.,
Inc., B-287066, Mar. 30, 2001, 2001 CPD para. 70 at 4. Our review of the
record provides us no basis to find the agency's evaluation here was
unreasonable or otherwise objectionable.
As set forth above, the solicitation informed offerors, with regard to the
proposed equipment factor, that the agency would evaluate each offeror's
proposed MFSU(s) to determine the extent to which the unit(s) would meet
or exceed the solicitation's minimum requirements. RFP sect. M.3, at 106.
Relevant to this protest, the solicitation required that each MFSU
proposed have a hand-washing unit with a minimum gray water storage
capacity of 400 gallons, and a kitchen unit with a minimum gray water
storage capacity of 500 gallons (900 gallons total). RFP sect. C, at
24-25. In performing its evaluation the TEB found that Nu-Way's proposal
planned to pump its hand-washing unit gray water to the kitchen unit, and
that Nu-Way's "kitchen unit carries 2 -- 400 gallon gray water bags." See
AR, Tab 6, Nu-Way Proposal, at 57; Tab 12, TEB Consensus report, at 14.
The TEB concluded that the total gray water storage capacity proposed by
Nu-Way (i.e., 800 gallons) did not meet the 900-gallon total gray water
storage capacity required by the solicitation. AR, Tab 12, TEB Consensus
Report, at 14.
Nu-Way does not dispute that in one instance its proposal represented a
gray water storage capacity of 800 gallons. Rather, the protester
characterizes this particular representation as inadvertent, and asserts
that in three other instances its proposal clearly indicated a gray water
storage capacity of 1,600 gallons. Protester's Comments, Aug. 5, 2005, at
6. Nu-Way argues that the agency's decision to "ignore Nu-Way's [multiple]
recitations of 1,600 gallons of gray water storage capacity in favor of a
one-time assertion of 800 gallons of gray water storage capacity" was
unreasonable. Id.
In addition to the reference in Nu-Way's proposal, quoted above, to "2 --
400 gallon gray water bags," our review of the record indicates a total of
four other instances where Nu-Way's proposal discusses its gray water
storage capacity, as follows: 1) "In addition to the equipment on the next
several pages, we also provide the following: . . . 2 -- 800 gallon gray
water storage bags"; 2) "Gray water will be plumbed into kitchen 800 gal.
gray water storage bags"; 3) "The gray water will be plumbed into the
kitchen 800 gallon gray water storage bags"; and 4) "The gray water will
be pumped into the kitchen unit gray water bags (800 gallon)." AR, Tab 6,
Nu-Way Proposal, at 24, 31, 36, 55.
As an initial matter, we think that Nu-Way glosses over the fact that
three of these excerpts from its proposal are themselves unclear as to
whether, as the protester claims, the proposed equipment has a gray water
storage capacity of 1,600 gallons: the references to "800 gallon gray
water storage bags" and "the kitchen unit gray water storage bags (800
gallon)" could be read to indicate either the total capacity of the bags
or the size of individual storage bags. In any event, it is an offeror's
obligation to submit a clear and unambiguous proposal, and it must bear
the consequences where its proposal does not reflect its intended
approach. United Def. LP, B-286925.3 et al., Apr. 9, 2001, 2001 CPD para.
75 at 19. Here, the representations in Nu-Way's proposal regarding its
gray water storage capacity cannot be reconciled; in one instance the
offeror expressly indicated a total storage capacity of 800 gallons (which
did not meet the solicitation's minimum requirement), while in another
instance the offeror expressly indicated a total storage capacity of 1,600
gallons. In light of the contradictory representations within Nu-Way's
proposal regarding its total gray water storage capacity, we cannot find
the agency's evaluation here to be unreasonable.
Nu-Way also argues that its proposal should not have been found
unacceptable under the proposed equipment factor because the Forest
Service failed to consider information known to the agency regarding
Nu-Way's equipment. Specifically, the protester argues that the TEB
chairman had conducted examinations of Nu-Way's equipment during the prior
year, and had personal knowledge that Nu-Way actually possessed a gray
water storage capacity that exceeded the solicitation requirement. Nu-Way
contends that this information was "too close at hand" for the agency to
ignore in the evaluation of Nu-Way's proposal. Therefore, Nu-Way argues,
the agency's failure to consider information known to it here was
unreasonable.
An offeror has the burden of submitting an adequately written proposal,
and an agency may downgrade a proposal for the lack of requested
information. Formal Mgmt. Sys., Inc., B-259824, May 3, 1995, 95-1 CPD
para. 227 at 3. Our Office has recognized that in certain limited
circumstances, however, an agency evaluating an offeror's proposal has an
obligation (as opposed to the discretion) to consider "outside
information" bearing on the offeror's proposal. International Bus. Sys.,
Inc., B-275554, Mar. 3, 1997, 97-1 CPD para. 114 at 5; G. Marine Diesel;
Phillyship, B-232619, B-232619.2, Jan. 27, 1989, 89-1 CPD para. 90 at 4-5.
Where we have charged an agency with responsibility for considering such
outside information, the record has demonstrated that the information in
question was "simply too close at hand to require offerors to shoulder the
inequities that spring from an agency's failure to obtain, and consider,
this information." International Bus. Sys., Inc., supra; see GTS Duratek,
Inc., B-280511.2, B-280511.3, Oct. 19, 1998, 98-2 CPD para. 130 at 14.
The facts here are distinguishable from those in our decisions
articulating the "too close at hand" principle. In the decisions cited
above, we addressed situations where an agency failed to include in its
evaluation past performance information that was specifically known to the
officials handling the protested procurement. For example, the G. Marine
Diesel; Phillyship decision dealt with a contracting officer's failure to
consider information, personally known to the contracting officer, that
the awardee's performance on a predecessor contract had been deficient;
the GTS Duratek decision dealt with the agency's failure to consider the
offeror's performance of a prior contract where the contract was discussed
in the offeror's past performance proposal and the contracting officer's
technical representative for the contract was a member of the technical
evaluation team for the subject solicitation.
Here, Nu-Way argues that because the TEB chairman personally knew that
Nu-Way had mobile food services equipment which met the RFP's
requirements, the agency was required to take this knowledge into account
in performing its evaluation. Even accepting that Nu-Way's contention is
factually accurate, the protester's argument requires the Forest Service
to assume that Nu-Way intended to employ the same equipment as it had in
the past. An offeror's proposed technical capabilities, including
equipment, may be varied by the offeror in response to the specifics of
each solicitation, and merely because certain equipment may have been
proposed or used in the past does not require the offeror to propose it on
subsequent occasions. Incident Catering Servs., LLC, B-296435.2 et al.,
Sept. 7, 2005, 2005 CPD para. __ at 8. In sum, we see no basis here to
regard the information regarding Nu-Way's equipment as falling within the
category of data that we deem "too close at hand" for the agency to
ignore.
Nu-Way also argues that it was unreasonable for the Forest Service not to
have allowed the firm to clarify the ambiguity regarding the proposed gray
water storage capacity in its proposal. Nu-Way contends that just as the
agency contacted the firm to clarify other minor aspects of its proposal,
the Forest Service should have sought clarification from Nu-Way regarding
its gray water storage capacity.
Federal Acquisition Regulation (FAR) sect. 15.306 describes a spectrum of
exchanges that may take place between an agency and an offeror during
negotiated procurements. Where a solicitation notifies offerors that
contract award may be made without discussions, an agency may engage in
clarifications that provide offerors with the opportunity to clarify
certain aspects of proposals or to resolve minor or clerical errors. FAR
sect. 15.306(a). Discussions, on the other hand, occur when an agency
indicates to an offeror significant weaknesses, deficiencies, and other
aspects of its proposal that could be altered or explained to enhance
materially the proposal's potential for award. FAR sect. 15.306(d)(3).
When an agency conducts discussions with one offeror, it must conduct
discussions with all other offerors in the competitive range. FAR sect.
15.305(d)(1). The "acid test" for deciding whether discussions have been
held is whether it can be said that an offeror was provided the
opportunity to revise or modify its proposal. Park Tower Mgmt. Ltd.,
B-295589, B-295589.2, Mar. 22, 2005, 2005 CPD para. 77 at 7; Priority One
Servs., Inc., B-288836, B-288836.2, Dec. 17, 2001, 2002 CPD para. 79 at 5.
When an offeror is given the opportunity to remove an ambiguity from its
proposal, especially where the information to be provided by the offeror
is essential for determining the proposal's acceptability, such an
exchange constitutes discussions. Integrated Sys. Group., B-272336;
B-272336.2, Sept. 27, 1996, 96-2 CPD para. 144 at 5. Accordingly, in this
case, had the Forest Service communicated with Nu-Way to resolve the
ambiguity in the firm's proposal regarding gray water storage capacity,
such an exchange would have constituted discussions, not clarifications.
As there is generally no obligation that a contracting agency conduct
discussions where, as here, the RFP specifically instructs offerors of the
agency's intent to award a contract on the basis of initial proposals,
Incident Catering Servs., LLC, supra, at 9, and the protester has not
argued (and we see nothing in the record to suggest) that the agency's
decision not to hold discussions with offerors was unreasonable, we find
no basis to object to the agency's action.
Lastly, Nu-Way challenges the agency's evaluation of other offerors'
proposals. Specifically, the protester contends that the technical
proposals submitted by each of the awardees for the locations for which
Nu-Way submitted a proposal (i.e., [DELETED], [DELETED], and [DELETED])
failed to meet the minimum equipment requirements of the solicitation. The
agency specifically addressed and refuted these contentions in its report,
explaining that the proposals submitted by the other offerors here were
properly determined to have met all minimum equipment requirements. In its
comments, Nu-Way expresses disagreement with the agency report but makes
no substantive rebuttal to the agency's position. Protester's Comments,
Sept. 6, 2005, at 2. Our review of the record provides no basis to find
the agency's evaluation here unreasonable or otherwise objectionable.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] In accordance with the RFP instructions, Nu-Way's proposal set forth
the award location preferences for its MFSU. Agency Report (AR), Tab 6,
Nu-Way Proposal, at 16.
[2] The TEB rated each offeror's MFSU(s) separately. The TEB also employed
the use of "+" and "-" (e.g., "acceptable plus") in its rating system. AR,
Tab 12, TEB Consensus Report, at 2-3.
[3] Gray water refers to the waste water generated as a result of the
contractor's hand-washing and mobile food service operations. While the
RFP required the contractor to provide sufficient gray water holding
facilities, the solicitation established that the agency would arrange for
the actual removal of the gray water.