TITLE: B-297084, IAP World Services, Inc., November 1, 2005
BNUMBER: B-297084
DATE: November 1, 2005
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B-297084, IAP World Services, Inc., November 1, 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: IAP World Services, Inc.

   File: B-297084

   Date: November 1, 2005

   Michael R. Charness, Esq., and Amy R. Napier, Esq., Vinson & Elkins LLP,
   for the protester.

   William A. Roberts, Esq., Philip J. Davis, Esq., Richard B. O'Keeffe,
   Esq., Michael S. Caldwell, Esq., and Antonella Karlin, Esq., Wiley Rein &
   Fielding LLP, for EJB Facilities Services, Inc., an intervenor.

   Richard G. Welsh, Esq., and Amy M. Steed, Esq., Naval Facilities
   Engineering Command, for the agency.

   Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1.      Where solicitation provided for the relative weighting of
   evaluation factors in the evaluation, rather than mere review for
   acceptability, agency properly considered extent to which proposals
   exceeded solicitation requirements.

   2.      Protest that agency failed to hold meaningful discussions with
   protester is denied where protester's proposal was rated at least
   acceptable under all evaluation categories, and protester does not point
   to any specific item that agency failed to discuss that kept protester
   from having a reasonable chance of receiving award.

   3.      Where agency determined that protester's price was reasonable,
   agency was not required to inform protester during discussions that its
   price was significantly higher than prices of competing offerors and
   government estimate.

   DECISION

   IAP World Services, Inc. protests the award of a contract to EJB
   Facilities Services under request for proposals (RFP) No.
   N44255-04-R-0003, issued by the Department of the Navy for base
   operations, security and maintenance for specified facilities in the
   Navy's Northwest Region. IAP principally asserts that the agency applied
   unstated evaluation criteria and failed to provide meaningful discussions.

   We deny the protest.

   The solicitation, which included definite-quantity and
   indefinite-delivery/indefinite-quantity (ID/IQ) items, provided for a
   "best value" evaluation based on three technical factors--management, past
   performance/experience, and small business subcontracting (in descending
   order of importance)--and price (which was approximately equal in weight
   to the technical factors taken together).

   The agency received four proposals, including the protester's and the
   awardee's. A technical evaluation board (TEB) evaluated the technical
   proposals using adjectival ratings (exceptional, highly acceptable,
   acceptable, marginal or unacceptable), and a price evaluation board (PEB)
   evaluated the price proposals for overall price, reasonableness, realism
   and completeness. The TEB and PEB prepared reports for the source
   selection board (SSB), which made an award recommendation to the source
   selection authority (SSA). Following two rounds of discussions and the
   receipt and evaluation of final proposal revisions, EJB's proposal was
   rated highly acceptable for the management and past performance factors
   and excellent for small business subcontracting. SSB Report (July 20,
   2005) at 2. IAP's proposal was rated acceptable for management and small
   business subcontracting and highly acceptable for past performance. Id.
   EJB's evaluated price ($405,270,348) was low, and IAP's ($451,341,289)
   third low. Id. at 30. The agency ranked EJB's proposal first overall and
   IAP's fourth based on the technical and price proposals. SSA Decision
   at 4. The SSB recommended EJB for award; the SSA concurred and made award
   to EJB.

   UNSTATED EVALUATION CRITERIA

   IAP asserts that the Navy improperly applied unstated evaluation criteria
   in evaluating the technical proposals. Specifically, IAP asserts that,
   while the RFP provided for technical proposals to be evaluated to ensure
   that the offeror understands the solicitation requirements, the Navy
   evaluated the technical proposals based on whether the offeror exceeded
   the stated requirements or used innovation in responding to them. IAP
   maintains that this resulted in the improper upgrading of EJB's proposal
   evaluation.

   Where a solicitation indicates the relative weights of evaluation factors,
   as opposed to providing for selection of the lowest-priced, technically
   acceptable proposal, the agency is not limited to determining whether a
   proposal is merely technically acceptable; rather, proposals may be
   evaluated to distinguish their relative quality by considering the degree
   to which they exceed the minimum requirements or will better satisfy the
   agency's needs. Israel Aircraft Indus., Ltd., MATA Helicopters Div.,
   B-274389 et al., Dec. 6, 1996, 97-1 CPD para. 41 at 5-6; Meridian Corp.,
   B-246330.3, July 19, 1993, 93-2 CPD para. 29 at 6-7. Here, as the
   solicitation provided for award on the basis of factors whose relative
   weights were disclosed, the Navy properly could consider in its evaluation
   both the extent to which proposals exceeded the RFP requirements and the
   extent to which offerors used innovative measures to respond to those
   requirements. The fact that EJB's proposal received favorable evaluation
   consideration on these bases thus is unobjectionable.

   DISCUSSIONS

   IAP asserts that the Navy's discussions with IAP were not meaningful
   because it failed to discuss proposal weaknesses and deficiencies that
   left IAP's proposal rated only acceptable for seven of nine subfactors
   under the management factor. IAP further asserts that the Navy improperly
   failed to inform the firm that its proposal failed to provide innovative
   solutions or to exceed the solicitation requirements. IAP cites one
   specific item in this latter regard--its excessive staff, which, according
   to IAP, substantially inflated its proposed price.

   Although discussions must address at least deficiencies and significant
   weaknesses identified in proposals, the scope and extent of discussions
   are largely a matter of the contracting officer's judgment. In this
   regard, we will review the discussions provided to ensure that the agency
   pointed out weaknesses that, unless corrected, would prevent the offeror
   from having a reasonable chance of receiving the award. An agency is not
   required to afford offerors all encompassing discussions or to discuss
   every element that receives less than the maximum score, and is not
   required to advise an offeror of a minor weakness that is not considered
   significant, even where the weakness subsequently becomes a determinative
   factor in choosing between two closely ranked proposals. MarLaw-Arco MFPD
   Mgmt., B-291875, Apr. 23, 2003, 2003 CPD para. 85 at 4.

   IAP does not point to any weakness or deficiency that prevented its
   proposal from being considered fully acceptable or otherwise from having a
   reasonable chance of receiving the award. Nor does our review of the
   record show that any such weaknesses or deficiencies existed. Rather, the
   evaluation record reveals that in the final evaluation the TEB found only
   one minor weakness (regarding pre-final inspections) in TEB's entire
   technical proposal.[1] TEB Report, attach. 3, at 3-7. Regarding IAP's
   belief that the agency should have discussed its excessive staffing, the
   agency did not find the staffing level excessive or a weakness or
   deficiency; rather, it found that IAP's staffing level was realistic. SSB
   Report at 19. The award  was ultimately made to EJB, not because IAP's 
   proposal was deficient, but because EJB's contained several elements that
   the agency found superior, that is, advantageous to the government. SSB
   Report at 32-34; SSA Decision at 1-7. Thus, since there were no weaknesses
   or deficiencies that kept IAP's proposal from being fully acceptable, or
   from otherwise having a reasonable chance of being selected for award, the
   agency was not required to provide more extensive discussions; it was not
   obligated to discuss additional areas simply because the proposal did not
   receive the highest possible rating in those areas. American Ordnance,
   LLC, B-292847 et al., Dec. 5, 2003, 2004 CPD para. 3 at 5.

   IAP also complains that the Navy improperly failed to inform IAP that its
   proposed price was too high. In this regard, IAP notes that its proposed
   price was substantially higher than both the government estimate (by 34
   percent) and EJB's price (by 21 percent) for the definite-quantity
   elements of the RFP, and 39 percent higher than EJB's price for the ID/IQ
   elements.[2]

   Where an offeror's price is high in comparison to competitors' prices or
   the government estimate, the agency may, but is not required to, address
   the matter during discussions. Grove Resource Solutions, Inc., B-296228,
   B-296228.2, July 1, 2005, 2005 CPD para. 133 at 5 n.5. Thus, if an
   offeror's price is not so high as to be unreasonable and unacceptable for
   contract award, the agency reasonably may conduct discussions without
   advising the offeror that its prices are not competitive. Id.; cf.
   Creative Info. Tech., Inc., B-293073.10, Mar. 16, 2005, 2005 CPD para. 110
   at 7 (price nearly 7 times the government estimate and 4.6 and 9 times
   competitors' prices is unreasonable on its face). Here, the agency
   determined that IAP's overall price was reasonable for the work to be
   performed and for what IAP proposed, SSB Report at 19, and the price
   difference, even as calculated by IAP, is not of a magnitude that suggests
   that IAP's price was unreasonable on its face. See Grove Resource
   Solutions, Inc., supra (agency not required to discuss protester's high
   price where awardee's price was about 40 percent lower). Under these
   circumstances, the Navy was not required to raise the matter of IAP's
   higher price during discussions.

   ADDITIONAL ISSUES

   IAP also challenges EJB's past performance and price realism evaluations,
   arguing in the latter regard that a proper evaluation would have
   demonstrated that both EJB's proposal and the second lowest priced
   proposal were unrealistic. However, since IAP's proposal was ranked only
   fourth overall, and its arguments concern only EJB and one of the
   intervening offerors, the other intervening offeror (whose price was
   higher than IAP's, and thus not subject to IAP's realism argument) would
   be in line for award ahead of IAP even if we found merit in these
   arguments.

   Under these circumstances, IAP is not an interested party to raise these
   issues. See 4 C.F.R. sect. 21.1(a); JAVIS Automation & Eng'g, Inc.,
   B-290556.2, Aug. 9, 2002, 2002 CPD para. 145 at 6.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] In the comments IAP submitted on September 30 in response to the
   agency report, IAP for the first time asserts that the Navy should have
   discussed with IAP its concern regarding IAP's willingness to accept
   pre-final inspections more than 30 days before a programmed vacancy. Since
   IAP learned of this concern on August 11, when the agency supplied IAP
   with an advance copy of its debriefing, but did not raise the issue until
   more than 10 working days after the debriefing, this argument is untimely.
   See 4 C.F.R. sect. 21.2(a)(2) (2005). In any case, as noted, the agency
   considered this concern to be only a minor weakness.

   [2]The agency computes a smaller price difference: 23 and 15 percent
   higher than the government estimate and EJB's proposed price,
   respectively, for the definite-quantity elements, and 8 and 6 percent
   higher for the ID/IQ items.