TITLE: B-297215; B-297215.2; B-297215.3; B-297215.4, Systems Plus, Inc., December 16, 2005
BNUMBER: B-297215; B-297215.2; B-297215.3; B-297215.4
DATE: December 16, 2005
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B-297215; B-297215.2; B-297215.3; B-297215.4, Systems Plus, Inc., December 16, 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: Systems Plus, Inc.

   File: B-297215; B-297215.2; B-297215.3; B-297215.4

   Date: December 16, 2005

   David Kasanow, Esq., Thomas C. Papson, Esq., Alison L. Doyle, Esq., Dana
   Pashkoff, Esq., and Karri Garrett, Esq., McKenna, Long & Aldridge LLP, for
   the protester.

   Robert E. Gregg, Esq., Steven Tibbets, Esq., and Margaret L. Maciulla,
   Esq., Squire, Sanders & Dempsey LLP, for Aquilent, Inc., an intervenor.

   Dennis Adelson, Esq., Department of Labor, and Kenneth Dodds, Esq., Small
   Business Administration, for the agencies.

   Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest of agency's evaluation of quotations and selection decision is
   denied where record shows they were reasonable and consistent with
   solicitation.

   DECISION

   Systems Plus, Inc. protests the award of a blanket purchase agreement to
   Aquilent, Inc. under request for quotations (RFQ) No. DOL059RQ20030,
   issued by the Department of Labor (DOL) for information technology
   services. The protester contends that the selection of Aquilent's
   higher-rated, higher-priced quotation was inconsistent with the evaluation
   scheme in the solicitation.

   We deny the protest.

   The RFQ, issued on April 29, 2005, as a small business set-aside, sought
   quotations from Federal Supply Schedule (FSS) contractors for information
   technology software development services. The solicitation advised that
   award could be made to other than the lowest-priced vendor, and that the
   award would be made to the vendor submitting the quotation determined to
   be in the best interest of the government. RFQ at 1, 32. The RFQ
   specifically advised that the agency's determination of which quotation
   represents the best value to the government was to be based upon
   consideration of three evaluation factors: technical (with subfactors for
   understanding, statement of work, performance requirements summary,
   qualifications, availability of staff, institutional experience, and
   project management), past performance, and price; the RFQ did not state
   that any of the three factors was more important than any other of the
   factors. Id. at 32. Technical quotations were to demonstrate an
   understanding of the RFQ's statement of work, objectives, performance
   measures, and staffing needs. Id. at 33. The evaluation of past
   performance was to include a review of past performance reference surveys
   for contracts described in the firms' quotations, as well as any other
   information available to the contracting officer. Id. For evaluation
   purposes, vendors were to quote a total price, based on multiplying
   estimated hours by fixed hourly rates by labor category; the use of
   service-disabled veteran-owned small businesses would also be considered
   by the agency in making its "overall best value determination." Id.

   Five vendors submitted quotations. Aquilent's quotation was rated highest
   for technical merit (under both the technical and past performance
   factors). Specifically, the Aquilent quotation received a rating of
   "strong" under five of the six subfactors of the technical factor, and a
   rating of "exceptional" for past performance. Aquilent's quoted price, the
   second-highest received, was $17,275,979. The protester's quotation
   received a rating of "weak" under five of the six subfactors of the
   technical factor; for past performance, the quotation was rated as
   "satisfactory." The protester submitted the second-lowest price,
   $14,655,430.40.[1] The source selection official considered the strengths
   of the Aquilent quotation under both the technical and past performance
   factors and noted that the lower-priced vendors, including Systems Plus,
   received lower technical and past performance ratings.[2] Weighing the
   additional value of Aquilent's "very good solution for meeting the needs
   and objectives of the program," as well as "the higher level of
   confidence" in the firm's performance at a price in line with the
   government estimate, the source selection official concluded that
   selection of Aquilent on the basis of that firm's substantially
   technically superior quotation warranted payment of an estimated
   15-percent price premium associated with it. Award Documentation, Aug. 24,
   2005, at 5. This protest followed.[3]

   Systems Plus generally challenges the agency's evaluation of Aquilent's
   past performance. The protester alleges that, although the agency received
   two reference surveys rating the firm's past performance as exceptional,
   the agency should have lowered the rating based on its alleged knowledge
   of a recent computer system failure at a DOL facility for which Aquilent
   was responsible, according to Systems Plus. As support for its assertion,
   Systems Plus points to e-mail correspondence between agency personnel and
   information technology vendors then servicing the agency. Our review of
   the e-mail exchange provided by the protester about the system failure,
   however, indicates that the correspondence fails to identify Aquilent as
   the cause of the problem. Moreover, the agency points out that both the
   event and the e-mail exchange referenced by the protester took place after
   the past performance reference surveys had been submitted and reviewed,
   and that, in any event, the problem concerned a system overload from an
   unusually high volume of user activity which could not reasonably be
   attributed to a single contractor, since there were several vendors
   servicing the system at the time. The protester has not refuted the
   agency's rationale for its conclusion that the system failure does not
   provide any basis to question the awardee's otherwise exceptional past
   performance. Accordingly, the record provides no basis to question the
   propriety of the past performance evaluation.

   Next, Systems Plus protests that the evaluation of quotations was
   inconsistent with the RFQ's terms. The protester states that although
   vendors "reasonably should have assumed that the three evaluation factors
   would be given equal weight by the evaluators," they were not.[4]
   Protester's Third Supplemental Protest Comments, Nov. 14, 2005, at 6.
   According to Systems Plus, in determining best value, the technical factor
   was given significantly more weight than the price factor.

   In reviewing protests of alleged improper evaluations and source
   selections, our Office examines the record to determine whether the
   agency's judgment was reasonable and in accord with the stated evaluation
   criteria and applicable procurement laws. See Abt Assocs., Inc.,
   B-237060.2, Feb. 26, 1990, 90-1 CPD para. 223 at 4. In a best value
   procurement where price is only one factor for consideration, price is not
   necessarily controlling and a price/technical tradeoff may be required to
   determine if one proposal's (or here, one quotation's) technical
   superiority is worth the higher price; such a tradeoff must be consistent
   with the terms of the solicitation's evaluation scheme. See H.F. Henderson
   Indus., B-275017, Jan. 17, 1997, 97-1 CPD para. 27 at 2.

   The protester generally argues that the technical factor was given more
   weight than the price factor. Our review of the record does not support
   the protester's contention. For instance, the protester argues that, since
   there is more discussion in the evaluation record and source selection
   decision dedicated to the technical merit of the quotations, compared to
   the vendors' prices, the technical factor must have been given more
   weight. Protester's Third Supplemental Protest Comments, Nov. 14, 2005, at
   6. We cannot conclude that the additional documentation under one
   evaluation factor means that it was improperly given additional weight.
   Rather, it is clear that the difference in the degree of discussion in the
   evaluation and source selection records dedicated to each evaluation
   factor reflects the number of subfactors and requirements listed in the
   RFQ for each evaluation criterion. For evaluation under the technical
   factor, for instance, vendor responses under six subfactors (regarding
   compliance with a detailed statement of work and objectives) were to be
   considered; conversely, for price, only hourly rates by labor category, to
   be multiplied by estimated hours to calculate the total evaluated price,
   were to be provided. In short, despite the protester's suggestion
   otherwise, the record shows the additional documentation for the technical
   factor was reasonably related to the terms of the solicitation itself and
   does not demonstrate that the agency unreasonably gave additional weight
   to the technical factor.

   As noted above, the RFQ here permitted award to other than the low-priced
   vendor where that vendor's quotation was found to represent the best value
   based on consideration of three evaluation factors (technical, past
   performance, and price). Systems Plus has not challenged the underlying
   evaluation findings regarding the determination of Aquilent's substantial
   technical superiority, the reasonableness of that firm's price, or the
   reasonableness of the source selection authority's decision that specific
   strengths in the Aquilent quotation, along with its better past
   performance, warranted the payment of that firm's higher price. Under
   these circumstances, the agency's decision that the price premium
   associated with selecting Aquilent's quotation was warranted does not
   demonstrate that the agency failed to give equal weight to each of the
   evaluation factors.[5]

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] Systems Plus initially protested its evaluation ratings, but the firm
   failed to respond to the agency's comprehensive report in support of the
   evaluation. Accordingly, we consider the challenge abandoned. The Big
   Picture Co., Inc., B-220859.2, Mar. 4, 1986, 86-1 CPD para. 218 at 5.
   Similarly, in its third supplemental protest, the protester challenged its
   past performance evaluation, but did not respond to the agency's report on
   this issue; we consider this matter to be abandoned as well. Id. In
   addition, in its first supplemental protest, Systems Plus argued that the
   agency had improperly assumed that the firm's employees would be available
   to a successor contractor and that the agency had improperly interfered
   with the protester's employment relationships with its employees. In
   response to the agency's report on these issues, the protester withdrew
   these allegations.

   [2] The contracting officer's tradeoff analysis initially focused on a
   comparison of the two quotations with the highest technical and past
   performance ratings (including Aquilent's), which were similar in price
   and substantially higher-rated than the other three quotations. Aquilent's
   quotation, slightly higher-rated and slightly lower-priced than the other
   of the two technically strong quotations, was then compared to the other
   lower-priced, lower-rated quotations. The contracting officer found that
   the third highest-rated quotation, the fourth highest-rated quotation
   (submitted by Systems Plus), and the lowest-rated quotation (which all
   quoted prices approximately 15 percent lower than the awardee's price)
   "were at best weak and would not provide a comfortable level of confidence
   for good performance in this program, placing success, in the opinion of
   the evaluators and contracting officer, at risk." Award Documentation,
   Aug. 24, 2005, at 5.

   [3] To the extent Systems Plus contends that the RFQ improperly failed to
   identify the relative weight of the evaluation factors, the matter is
   untimely as it concerns an apparent impropriety in the solicitation that
   should have been challenged prior to the closing date. Bid Protest
   Regulations, 4 C.F.R. sect. 21.2(a)(1) (2005). In any event, as discussed
   below, Systems Plus in fact acknowledges that all vendors "reasonably
   should have assumed that the three evaluation factors would be given equal
   weight by the evaluators." Protester's Third Supplemental Protest
   Comments, Nov. 14, 2005, at 6. The protest is also untimely to the extent
   the protester contended for the first time in a supplemental protest filed
   on October 24 that it interpreted the RFQ to contemplate selection of the
   technically acceptable, low-priced vendor. The record shows that as early
   as August 31 the protester was provided an explanation of the selection
   decision that specifically advised the firm that although the Systems Plus
   price was lower than the awardee's, the protester's quotation received
   relatively low technical and past performance ratings, and the agency had
   determined that Aquilent's quotation represented the best value
   considering all of the factors for award--technical, past performance, and
   price. See 4 C.F.R. sect. 21.2(a)(2) (to be timely, a protest against
   other than a solicitation impropriety must be filed within 10 days of when
   the protester knew or should have known its basis of protest). Further,
   contrary to the protester's contention, this matter does not warrant
   application of the significant issue exception to our timeliness rules,
   since it does not concern a novel issue of widespread importance to the
   procurement community; the adequacy of evaluation terms in FSS
   procurements is a matter we have previously reviewed. See, e.g., Finlen
   Complex, Inc., B-288280, Oct. 10, 2001, 2001 CPD para. 167; COMARK Fed.
   Sys., B-278343, B-278343.2, Jan. 20, 1998, 98-1 CPD para. 34.

   [4]As the agency reports, and the protester agrees, where a solicitation
   fails to indicate the relative importance of price and technical factors,
   it is reasonable to assume the factors are approximately equal in weight.
   See Beneco Enters., Inc., B-283154, Oct. 13, 1999, 99-2 CPD para. 69 at 9.

   [5]In its second supplemental protest, Systems Plus asserted that the
   agency improperly failed to terminate the award to Aquilent after the
   Small Business Administration (SBA) determined the firm was not a small
   business. DOL reports that there are intervening vendors in line for award
   before the protester in the event its protest on this ground were
   sustained; accordingly, Systems Plus is not an interested party to pursue
   the protest. See 4 C.F.R. sect. 21.0(a); Medical Info. Servs., B-287824,
   July 10, 2001, 2001 CPD para. 122 at 5-6; Childers Constr., Co.,
   B-243379.2, 91-2 CPD para. 300 at 2-3.