TITLE: B-297133.3, ManTech Security Technologies Corporation, April 24, 2006
BNUMBER: B-297133.3
DATE: April 24, 2006
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B-297133.3, ManTech Security Technologies Corporation, April 24, 2006

   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: ManTech Security Technologies Corporation

   File: B-297133.3

   Date: April 24, 2006

   Jonathan Aronie, Esq., Anne B. Perry, Esq., and Keith R. Szeliga, Esq.,
   Sheppard Mullin Richter & Hampton LLP, for the protester.

   Andrew Mohr, Esq., and David S. Cohen, Esq., Cohen Mohr LLP, for Siemens
   Government Services, Inc., an intervenor.

   Dennis J. Gallagher, Esq., Department of State, for the agency.

   Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Protester was not prejudiced by the fact that another unsuccessful
   offeror was permitted to have more than 10 persons attend the oral
   presentation, which was assertedly in violation of the terms of the
   solicitation, where the awardee had only 10 persons attend the oral
   presentation.

   2. Agency was not required to discuss relative weaknesses in the
   protester's highly rated proposal that materialized as a result of oral
   presentations based on a comparative evaluation of the proposals by the
   agency, finding that the awardee's proposal had a superior technical
   approach.

   3. Protest against evaluation and source selection is denied where the
   record evidences that the procuring agency reasonably evaluated proposals
   consistent with the RFP's evaluation criteria.

   DECISION

   ManTech Security Technologies Corporation protests the award of a contract
   to Siemens Government Services, Inc. under request for proposals (RFP)
   No. S-AQMPD05-R-1002, issued by the United States Department of State
   (DOS), for engineering and technical support services.

   We deny the protest.

   DOS installs and maintains security equipment at its facilities worldwide
   to protect its personnel and the United States' critical national security
   information from terrorism, mob violence, and technical threats. The RFP,
   issued May 6, 2005, solicited proposals to provide engineering and
   technical support for this function under a combined fixed-price and
   time-and-materials contract for a base year with 3 option years. Because
   the contractor was required to use service employees to perform the work,
   the RFP required compliance with the Service Contract Act of 1965 (SCA)
   and included the appropriate wage determination.

   The RFP provided for award on a "best-value" basis with the following
   evaluation factors listed in descending order of importance:

     Factor 1 - Technical/Management Solution/Approach

     Factor 2 - Performance Measurement and Management Program

     Factor 3 - Past Performance

     Factor 4 - Subcontracting and Socio-Economic Business Participation

     Factor 5 - Price.

   With respect to Factor 1, the RFP indicated that the proposals would be
   evaluated for quality and evidence of the extent to which the offeror's
   solution will achieve the program's desired outcomes, and would include
   assessments of the approach to performing and managing the effort;
   adherence to sound engineering, design and management practices; and
   relevance to the program objectives, environment, and constraints. Several
   examples were listed in the factor as to what was desired, such as a
   "comprehensive performance work statement and work breakdown structure
   that addresses the services to be delivered to meet the program and
   mission requirements set forth in the statement of objectives," a "sound
   technical proposal that clearly demonstrates how implementation of the
   proposed solutions will deliver timely, reliable, responsive, compliant
   and cost effective services to meet the needs of the program
   stakeholders," a "[p]rocess that reflect[s] current industry best
   practices," and "[a]ctive and continuing participation and involvement of
   senior corporate executives in ensuring success of the program." RFP sect.
   M.4.

   The RFP advised that the agency's evaluation ratings would focus on the
   strengths and weaknesses of the offeror's technical and management
   capability and the solution as demonstrated by the written proposal and
   oral presentation. RFP sect. M.5. In this connection, section L.18 of the
   RFP advised that oral presentations/discussions would be conducted with
   all offerors whose proposals had been determined to be in the competitive
   range, and that the sessions would comply with Federal Acquisition
   Regulation sect. 15.306(d). Section L.18 explained that the sessions would
   take an estimated 4 hours, during which the offeror would be allowed to
   describe its proposed solution/approach and pricing structure and to
   address certain subjects identified in the instructions, to help the
   government better understand the proposal. In this regard, offerors were
   informed that government participants could ask questions throughout the
   presentation. The section further explained that it was required that
   individuals presenting be those identified as key personnel and/or senior
   management, and that it was important that the individuals responsible for
   performance of the services present the oral presentation. This section
   also advised that, due to limited space, only 10 people were allowed to
   attend the presentation.

   The RFP stated that the price evaluation would involve evaluation of
   proposed price/cost, price reasonableness, and price risk. The RFP stated
   that reasonableness would be established by the existence of adequate
   price competition and comparison to factors such as market pricing and
   similar work, and that the price risk evaluation would consider "the risk
   associated with pricing schemes." RFP sect. M.4.

   Seven offerors submitted proposals in response to the RFP by the June 20
   closing date. A seven-member technical evaluation panel (TEP) rated the
   proposals under only Factors 1 and 2 utilizing a qualitative adjectival
   rating scale.[1] Included in the competitive range were the proposals of
   ManTech, the incumbent for most of the services, whose proposal received
   an overall rating of excellent/technically acceptable and was priced at
   $106,711,811; Computer Sciences Corporation (CSC), whose proposal received
   an overall rating of excellent/technically acceptable and was priced at
   $91,376,298; and Siemens, whose proposal received an overall rating of
   good/technically unacceptable, but capable of being made acceptable
   through discussions, and was priced at $98,694,732.

   Following oral presentations, the TEP received final proposal revisions.
   Based upon the oral presentations and proposal revisions, which included
   no price changes, the TEP revised the ratings of the three proposals.
   Siemens's proposal was rated highest with an overall rating of
   excellent/acceptable, while ManTech's and CSC's proposals both were
   downgraded to an overall rating of good/technically acceptable.

   The TEP found Siemens's revised proposal warranted the highest rating
   because during the oral presentation it augmented its written proposal by
   demonstrating its depth of understanding of the technical requirements, it
   had senior corporate executives actively involved, and it clarified
   questions that the TEP had about the innovative approaches in the
   proposal. The TEP found that Siemens validated its ability to make the
   best use of industry practices and substantiated the level of detailed
   knowledge and modernization needed to manage the multifaceted global
   effort. The TEP concluded that Siemens had a convincing and actionable
   plan to globally implement all the required services, and the leadership
   to bring enterprise-wide processes together to improve asset visibility
   and program management. The TEP further found that Siemens's management
   team presented a cohesive approach with many value-added methodologies to
   lower the cost of ownership and improve delivery systems. The TEP noted
   that all significant technical and management challenges, including life
   cycle management and operator training, were clearly identified, and that
   Siemens had designed effective risk mitigation tools and strategies for
   dealing with supply chain data recovery and contract transition. Thus, the
   TEP concluded that Siemens's proposal offered the best overall technical
   solution to achieve the program's objectives and desired outcomes. Agency
   Report, Tab 59, TEP Memorandum, at 2.

   By comparison, the TEP rated ManTech's proposal good based on the firm's
   experience with the work and its clear understanding of what is needed to
   accomplish the task. For example, the TEP found that, as the incumbent for
   many of the services in the predecessor contract, the chance of a seamless
   transition was substantially higher, and that its proposal indicated a
   clear understanding of the operations to be covered by the contract,
   industry best practices and a defined quality control practice. However,
   the TEP downgraded the rating for ManTech's revised proposal following the
   oral presentation to good primarily because "the proposal failed to
   demonstrate the opportunities for service improvement available in the
   proposal rated excellent."[2] The TEP also found that the proposal as
   explained during the oral presentation "did not as aggressively identify
   and apply enterprise-wide services that clearly address the global asset
   management challenges."[3] Id.

   In view of Siemens's superior technical proposal and reasonable price, the
   source selection official determined Siemens's proposal represented the
   best value, after conducting a price/technical trade analysis between the
   proposals. In so doing, the source selection official determined that no
   detailed price/technical consideration of ManTech's high-priced proposal
   vis-`a-vis Siemens's proposal was warranted because ManTech's proposal was
   only slightly technically better than CSC's, which was viewed as having an
   advantage because of its much lower price, and therefore focused on the
   differences between CSC's and Siemens's proposals. As between these two
   proposals, the source selection official found Siemens's proposal to be "a
   well thought-out and applied technical and management approach to the
   Department's critical worldwide security enhancements program that is
   substantially more innovative and promising than that offered by CSC," and
   that this justified the agency paying the associated higher price. Agency
   Report, Tab 60, Cost-Technical Tradeoff and Award Determination, at 4-5.

   DOS awarded the contract to Siemens on August 29. However, a protest filed
   by ManTech led DOS to take corrective action, after it realized that the
   agency's evaluation failed to include Factors 3 and 4. As part of the
   corrective action, the TEP rated the three proposals excellent for Factor
   3. For Factor 4, CSC's proposal received an excellent rating, while both
   Siemens's and ManTech's proposals received good ratings.

   A new price/technical tradeoff decision was made that mirrored in many
   respects the previous rationale for why Siemens's proposal represented the
   best value as between the Siemens and CSC proposals. This second decision
   also included a specific discussion as to why ManTech's proposal was not
   selected. While recognizing and discussing the strengths of ManTech's
   proposal, the decision found that "ManTech's proposal failed to
   demonstrate the opportunities for service improvement available in
   Siemens's proposal, and did not as aggressively identify and apply
   enterprise-wide services that clearly address the global asset management
   challenges," and that its proposal rating had been lowered to good because
   of the absence of "innovative or comprehensive approaches" in its oral
   presentation. Agency Report, Tab 66, Revised Cost-Technical Tradeoff and
   Award Determination, at 5-6. DOS affirmed the award to Siemens on January
   11, 2006. This protest followed.[4]

   ManTech challenges the fairness of the oral presentation, given that the
   agency relaxed for CSC the 10-person limitation on those who could attend
   the oral presentation. ManTech argues that had it been permitted to bring
   more than 10 persons to its oral presentation it could have addressed the
   agency's concerns with regard to service improvements and how it would
   address global asset management and demonstrated the commitment of its
   senior executive personnel to this contract.[5]

   The record here reflects that in response to a request made by CSC, DOS
   permitted CSC to rotate presenters into the room, which resulted in it
   utilizing more than 10 persons to make its oral presentation (although
   only 10 were in the room at any one time). See Agency Report at 5, 40.
   However, the awardee, Siemens, like ManTech, only had 10 persons
   participate in the oral presentation. Id. at 5. Since CSC was not selected
   for award, the fact that CSC had more than 10 persons participate in the
   oral presentation was not prejudicial to ManTech and therefore does not
   provide a basis to sustain the protest.[6] See Interactive Data Corp.,
   B-188964, Nov. 23, 1977, 77-2 CPD para. 397 at 6; McDonald-Bradley,
   B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at 3; Statistica, Inc. v.
   Christopher, 103 F.3d 1577, 1581 (Fed Cir. 1996).

   ManTech next contends that it was improper for DOS not to have made
   ManTech aware, during or subsequent to the oral presentation, of the
   perceived weaknesses in its proposal that caused it to be rated good
   rather than excellent.

   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 review the adequacy of discussions to ensure that agencies
   point out weaknesses that, unless corrected, would prevent an offeror from
   having a reasonable chance for award. An agency is not required to afford
   offerors all-encompassing discussions, or to discuss every aspect of a
   proposal that receives lower 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. American
   Ordnance, LLC, B-292847 et al., Dec. 5, 2004, 2004 CPD para. 3 at 4-5.

   Here, the weaknesses found by the agency resulted from the oral
   presentations of Siemens and ManTech, which, in the agency's view, after
   reevaluating the proposals considering the initial proposals, oral
   presentations and final proposal revisions, demonstrated that Siemens had
   a superior technical approach. The reason that ManTech's proposal
   ultimately was rated good and Siemens's was rated excellent was not
   because ManTech's proposal was deficient (in fact it was rated highly),
   but rather that Siemens's proposal, as amplified by the oral presentation,
   contained a number of strengths that warranted its superior rating that
   were not present in ManTech's proposal, as amplified by the oral
   presentation. Thus, the agency had no duty to conduct discussions on a
   point that became apparent after the proposals were comparatively
   evaluated and Siemens' was found superior on this point to ManTech's. Id.

   Next, ManTech raises a multiplicity of arguments challenging the agency's
   conclusion that ManTech's proposal warranted only a good rating because it
   failed to optimally demonstrate the opportunities for service improvements
   (as compared to Siemens) and did not aggressively identify and apply
   enterprise-wide services that clearly address the global asset management
   challenges.

   Our Office reviews challenges to an agency's evaluation of proposals only
   to determine whether the agency acted reasonably and in accord with the
   solicitation's evaluation criteria and applicable procurement statutes and
   regulations. A protester's mere disagreement with the agency's judgment is
   not sufficient to establish that an agency acted unreasonably. Cherry Road
   Techs.; Elec. Data Sys. Corp., B-296915 et al., Oct. 24, 2005, 2005 CPD
   para. 197 at 6.

   ManTech first argues that rating its proposal based on a comparison to
   Siemens's proposal as to whether it demonstrated optimum opportunities for
   service improvements and aggressively identified enterprise-wide services
   addressing global asset management challenges were unstated evaluation
   factors. This argument is meritless.

   We first note that section C.4.2 of the statement of objectives in the RFP
   specifically advises that "the goal [at the various sites] is to lower the
   cost to the government and or provide improved services." In addition, the
   evaluation criteria specifically indicated that credit would be given to a
   proposal that reflected current industry best practices. RFP sect. M.4.
   Thus, ManTech was specifically put on notice that the agency sought to
   improve the current services and that proposals that demonstrated how this
   could be done would be credited for such innovations.

   Moreover, an agency may properly rate one proposal higher than another for
   exceeding the RFP requirements where the RFP seeks detailed technical
   proposals and sets forth weighted evaluation criteria to enable the agency
   to make comparative judgments about the relative merits of competing
   proposals. Under these circumstances, an offeror is on notice that the
   agency will make qualitative distinctions between proposals under the
   various evaluation factors. In making such distinctions, the agency may
   properly consider specific matters, albeit not expressly identified, that
   logically relate to the stated evaluation criteria. See RAI, Inc.; The
   Endmark Corp., B-250663, et al., Feb 16, 1993, 93-1 CPD para. 140 at 6.

   Here, as discussed above, the agency found that Siemens's technical
   proposal, as supplemented by its oral presentation, separated it from the
   other proposals, including ManTech's, on matters that were covered by, or
   logically related to, the evaluation criteria. In fact, the record
   indicates that because of these strengths the TEP found that Siemens
   solidified its proposal with a strong oral presentation whereas ManTech's
   oral presentation lessened the impact of its written proposal. See Agency
   Report, Tab 59, attach. 2, Consolidated Rating and Narrative, at 1-11.
   This was the reason that Siemens's proposal received an excellent rating
   and the other proposals only received good ratings.

   For example, one evaluator stated that while his initial impression was
   that Siemens's written proposal was "theoretical," Siemens "came to their
   orals with detailed, factual information . . . with clear information of
   how these areas would be implemented." He found that Siemens's
   "innovative, comprehensive" "presentation on warehousing and logistics far
   exceeded that of the other two companies"; that "their proposed solution
   for providing lab facilities and their entire approach to technology
   development were fresh and innovative"; and "their presentation included
   senior managers that participated in the discussions." This evaluator
   found that ManTech, in contrast to Siemens, after the oral presentation
   and final proposal revisions, had not demonstrated as "thorough [an]
   understanding of the challenges pertaining to logistics and technology
   development" and had left the "impression that as the incumbent, they
   would continue business as usual." The evaluator also observed that "in
   the area of Network management their partner was not present and they did
   not give a convincing presentation that proved they had a plan to meet
   those required objectives [and that ManTech's] senior managers in
   attendance were notably silent." Agency Report, Tab 59, attach. 2,
   Consolidated Rating and Narrative, at 3-4.

   While ManTech asserts that the agency's evaluation did not properly
   account for ManTech's excellent written technical proposal, which offered
   many improvements to the current services, such as [DELETED] our review of
   the record indicates that the agency's evaluation conclusions that
   Siemens's proposal warranted an excellent rating and ManTech's a good
   rating are supported by the record and are consistent with the RFP's
   evaluation scheme. It is apparent that recognizing an offeror's particular
   innovation and creativity under the comparative technical evaluation is
   inherent in any competition between competing proposals, and ManTech's
   belief that its proposed innovations were not properly accounted for here
   reflect mere disagreement that does not demonstrate that the agency's view
   that Siemens's proposal was the more innovative of the two highly-rated
   proposals was unreasonable. Moreover, given that the evaluation criteria
   specifically indicated that offerors would be credited for "[a]ctive and
   continuing participation and involvement of senior corporate executives in
   ensuring success of the program," RFP sect. M.4, the agency properly took
   into account the active participation by Siemens's senior personnel, in
   contrast to the perceived passive participation by ManTech's senior
   personnel, in rating the respective proposals.

   ManTech also argues that DOS conducted a flawed price evaluation. ManTech
   maintains that more price risk should have been attached to Siemens's
   proposal because it was based on hiring ManTech's incumbent staff but
   included labor rates lower than ManTech's current salary levels, which
   should have raised questions as to whether Siemens would be able to
   attract and retain a qualified staff. In addition, ManTech argues that the
   price evaluation was unreasonable because the agency's evaluation did not
   include an "analysis of the elements of offerors' proposed prices,
   including for example, whether offerors were proposing rates that complied
   with the SCA for the correct labor categories, whether they were proposing
   labor rates that reflected the level of expertise and skill required by
   the Solicitation, whether the offerors' rates were consistent with the
   Independent Government Estimate, or whether an offeror who was proposing
   to capture and retain the incumbent staff proposed rates that reasonably
   could accomplished the proposed approach." Protester's Comments at 21.

   Although ManTech's essential complaint is that DOS's analysis should have
   been more exhaustive, our review confirms that the price evaluation that
   was conducted by DOS was reasonable and consistent with the RFP. The
   record shows that in conducting the price evaluation, the agency compared
   offerors' prices to each other for each contract line item for the base
   and option years and to the government estimate ($150,000,000) for the
   work, considered whether the offerors' prices were unbalanced, and found
   that price reasonableness was established by adequate price competition
   that reflected approximately a 5-percent differential between the three
   lowest-priced proposals of CSC, Siemens, and ManTech. See Agency Report,
   Tab 42, Price Analysis Memorandum, at 2-6; Tab 65, Evaluation of Factor 5,
   at 1. This is fully consistent with what the RFP stated would be done in
   evaluating price reasonableness.

   Also, the agency found that all three offerors followed the pricing scheme
   set forth in the RFP and that although there were some differences in the
   schemes, there were no substantial price risks associated with any of the
   three offerors' proposals. This is consistent with the limited price risk
   evaluation contemplated by the RFP. While the protester apparently
   believes that price realism was required to be evaluated, the RFP did not
   contemplate any such evaluation. Absent an RFP provision in a solicitation
   for a fixed-priced contract requiring a price realism analysis, no such
   analysis is required. Cherry Road Techs.; Elec. Data Sys. Corp., supra, at
   18. Although ManTech claims that DOS should have considered whether
   Siemens satisfied the SCA, it has not pointed to any areas where Siemens'
   proposal was deficient, or where Siemens took exception to the SCA.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] The adjectival ratings were excellent, good, fair, poor, and
   unsatisfactory.

   [2] The evaluation documents reflect that an excellent rating was to be
   assigned by the TEP if, for example, the offeror's "proposed solution is
   clearly explained and offers value-added methodologies for improving
   service that benefits the government," whereas a good rating was warranted
   if, for example, the offeror's "proposed solution might be effective but
   fail[s] to offer the opportunities for service improvement available in a
   proposal rated excellent." Agency Report, Tab 59, TEP Memorandum, attach.
   1.

   [3] CSC's proposal was downgraded because "the proposal lacked the
   expected level of compelling evidence within both the Technical Security
   Project Management and Engineering Program, and the Test Evaluation
   Program to meet the standards of an excellent rating." Agency Report, Tab
   59, TEP Memorandum, at 3.

   [4] We focus only on the issues discussed below, since the other arguments
   raised in ManTech's initial protest were not addressed in its comments on
   the agency report and therefore are deemed to be abandoned.

   [5] ManTech has not pursued its other complaints about the conduct of the
   oral presentation.

   [6] In any case, we think that the agency's decision to allow CSC to
   utilize a rotation of personnel to make its oral presentation was not a
   basis to question the fairness of the oral presentation process. The RFP
   did not specifically restrict offerors to 10 persons, but merely put
   offerors on notice that only 10 persons could be accommodated in the room
   due to the space limitations. Although ManTech is complaining here that it
   was treated unequally because of the accommodation that the agency made
   for CSC, ManTech does not claim that at the time it made its presentation
   the agency precluded it from allowing more than 10 persons to participate.
   There is also no reason to believe that had ManTech made a similar request
   as CSC the agency would not have accommodated ManTech.