TITLE: B-297444.2, Low & Associates, Inc., April 13, 2006
BNUMBER: B-297444.2
DATE: April 13, 2006
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B-297444.2, Low & Associates, Inc., April 13, 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: Low & Associates, Inc.
File: B-297444.2
Date: April 13, 2006
Daniel S. Koch, Esq., and Bibi M. Berry, Esq., Paley Rothman Goldstein
Rosenberg Eig & Cooper, for the protester.
Sandra M. Wozniak, National Science Foundation, for the agency.
Glenn G. Wolcott, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency is required to perform its evaluation and make its source selection
decision on the basis of the criteria and requirements stated in the
solicitation, and may not alter or relax those criteria and requirements
without amending the solicitation and permitting all contractors an
opportunity to compete on an equal basis.
DECISION
Low & Associates, Inc. (LAI) protests the National Science Foundation's
(NSF) award of a contract to Dynamic Research Corporation (DRC) to provide
visual information support services pursuant to solicitation No. DCCA
050054. LAI protests, among other things, that the agency waived material
solicitation requirements.[1]
We sustain the protest.
BACKGROUND
In May 2005, the agency issued request for quotations (RFQ) No. DCCA
050054 to obtain visual information support services for a base-year
period and four 1-year option periods.[2] The requirements being sought
reflected a combination of requirements previously performed under two
expiring contracts. LAI was the incumbent for one of these expiring
contracts; DRC was the incumbent for the other.
Section M of the solicitation advised offerors that award would be based
on the quotation that "offers the best value to the National Science
Foundation based on technical merit, past performance, and cost," and
further established that technical merit was more important than
cost/price, which was more important than past performance. RFQ at 30.
With regard to technical merit, the solicitation established two
subfactors: qualifications of proposed personnel and technical approach.
RFQ at 30-31. With regard to the qualifications of proposed personnel,
contractors were directed to "include resumes and certification of
availability" for all personnel proposed and were advised that the agency
would assess specified qualifications of the proposed personnel. [3] RFQ
at 27, 30.
Section L of the solicitation directed offerors to submit a "combined
technical and cost quotation for services as required and described in the
SOW [statement of work]." RFQ at 27. Under the heading "Level of Effort,"
the SOW stated:
[i]t is envisioned that, over a period of 12 months, the office will
require two full-time graphic artists (4,160 hours), 1 graphic
artist/animator (2080 [hours]), two full-time web page designers/page
developers (4,160 hours) and the equivalent of two full-time image
research assistants (4,160 hours). . . .
It is expected that at least six of the seven contract staff personnel
(two graphics designers/scientific illustrators, two web
designer[s]/page developers, one graphic artist/animator and one image
researcher) will be located on site.
RFQ at 11-12.
In short, the solicitation provided that the agency sought quotations for
specifically identified personnel to fill a total of seven personnel
positions--two graphic artists, one graphic artist/animator, two web page
designers/developers, and two image research assistants--and stated that
the personnel filling all of these positions, except for one of the two
image researcher positions, were expected to be located on-site at NSF's
facility in Arlington, Virginia.
In June 2005, LAI and DRC each submitted quotations responding to the
solicitation.[4] DRC's proposal, under the heading "Staff Location,"
clearly stated that one of the two web page designer/developer positions
would be filled by a combination of two individuals working "from their
office in New York," [5] elaborating that "[the [deleted] principals']
office in New York provides access to cutting-edge multimedia resources
with no draw on the NSF space." AR, Tab 8, DRC Proposal (June 20, 2005),
at 6.
In evaluating DRC's submission, it is clear the agency evaluators
understood that DRC was planning for the [deleted] principals to perform
one of the web page designer/developer positions off-site. Specifically,
two of the agency evaluators listed this aspect of DRC's proposed approach
under the heading "Minor Weaknesses," stating "2 top personnel off site"
and "[deleted] principals are located in NY." AR, Tab 31, Evaluator
Worksheets, at 2, 11. Nonetheless, in evaluating the qualifications of
DRC's proposed personnel, the agency specifically identified the overall
qualifications of DRC's web page designers/developers as constituting a
"significant strength." AR, Tab 31, Agency Evaluation Worksheets, at 8,
13, 20, 26, 29, 33.
The agency summarized the qualifications of DRC's proposed personnel,
stating: "[A]ll candidates proposed by DRC are highly qualified with
recent and relevant experience." AR, Tab 28, Selection Statement, Sept.
27, 2005, at 3. The final ratings with regard to the technical factor,
average point scores, and evaluated costs were as follows: [6]
+------------------------------------------------------------------------+
| | DRC | LAI |
|----------------------------------+------------------+------------------|
|Technical Merit[7] | Very Good | Good |
| | | |
|(maximum 100 pts.) |([deleted] pts.) | ([deleted] pts.) |
|----------------------------------+------------------+------------------|
|--Qualifications of Personnel | [deleted] pts. | [deleted] pts. |
| | | |
| (maximum 60 pts.) | | |
|----------------------------------+------------------+------------------|
|--Technical Approach | [deleted] pts. | [deleted] pts. |
| | | |
| (maximum 40 pts.) | | |
|----------------------------------+------------------+------------------|
|Evaluated Cost/Price | $5,193,281 | $[deleted] |
+------------------------------------------------------------------------+
AR, Technical Evaluation Documents, Tabs 25, 28, 33.
Based on the evaluation, the contracting officer concluded that the
evaluated superiority of DRC's quotation under the technical merit factor
outweighed LAI's cost/price advantage and, on that basis, selected DRC for
award; a contract was awarded to DRC on September 28. During a debriefing
conducted with LAI on October 4, the agency advised LAI that proposed
personnel had been, in the agency's words, a "Major Discriminator" in the
source selection decision. AR, Tab 29, Agency's Debriefing Notes, at 3.
On October 14, LAI filed a protest with this Office asserting that
although NSF had selected DRC's quotation on the basis of the evaluated
superiority of DRC's proposed personnel, a majority of the individuals DRC
had proposed were not performing under the contract. Further LAI protested
that the agency had apparently relaxed, for DRC, the mandatory
solicitation requirements regarding on-site performance for six of the
seven required positions. Protest, Oct. 14, 2005, at 4, 6.[8]
By letter to our Office dated November 7, the agency stated that it was
taking corrective action in response to LAI's October 14 protest,
explaining:
After reviewing the protest and in light of the issues raised, it is the
decision of NSF to voluntarily take corrective action by reevaluating
all offerors' proposals and to make award based on the new
evaluations. . . . As the agency anticipates that this reevaluation will
address the concerns raised in the protest, we request the protest be
dismissed.
Letter from NSF to GAO (Nov. 7, 2005). Based on the agency's pending
corrective action, this Office dismissed LAI's October 14 protest. Low &
Assocs., Inc., B-297444, Nov. 15, 2005. In that decision, we noted that,
following completion of the agency's corrective action, LAI could again
seek review of any previously-raised issues that were not resolved by the
agency's corrective action. Id.
Thereafter, the agency reevaluated DRC's and LAI's quotations. The overall
effect of that reevaluation was to increase DRC's technical scores,
decrease LAI's technical scores, and slightly decrease DRC's evaluated
cost/price.[9] In reevaluating DRC's proposed personnel, the agency again
characterized DRC's proposed webpage designers/developers as constituting
the first of only two "Significant Strengths." AR, Tab 18, Technical
Evaluation Report, at 4.[10] Following reevaluation, the final ratings
were as follows:
+------------------------------------------------------------------------+
| | DRC | LAI |
|--------------------------------+-------------------+-------------------|
|Technical Merit | Very Good | Good |
| | | |
|(maximum 100 pts.) | ([deleted] pts.) |([deleted] pts.) |
|--------------------------------+-------------------+-------------------|
|--Qualifications of Personnel | [deleted] pts. | [deleted] pts. |
| | | |
| (maximum 60 pts.) | | |
|--------------------------------+-------------------+-------------------|
|--Technical Approach | [deleted] pts. | [deleted] pts. |
| | | |
| (maximum 40 pts.) | | |
|--------------------------------+-------------------+-------------------|
|Evaluated Cost/Price | $5,160,961 | $[deleted] |
+------------------------------------------------------------------------+
AR, Tab 18, Technical Evaluation Report, at 3-7; AR, Tab19, Business
Report, at 2.
Based on this reevaluation, the agency again selected DRC for award on
December 22, 2005. On January 3, 2006, LAI filed this protest.
DISCUSSION
LAI again protests, among other things, that DRC submitted its quotation
relying on personnel whom DRC did not intend to perform under the contract
and/or who failed to comply with the solicitation requirements regarding
on-site performance.
Following submission of LAI's January 2006 protest, this Office requested
that the agency identify each individual who was performing under the
contract, identify the date that performance began, and state whether
performance was on-site or off-site. The agency responded by acknowledging
that, of the seven positions for which the solicitation required that
specific personnel be proposed and certifications of availability be
submitted, only three positions were filled with the personnel DRC had
proposed. Further, with regard to the personnel DRC proposed to perform
the two web page designers/developer positions under this contract, none
of the proposed personnel has ever performed on-site.[11] Agency Response
to GAO Request for Information, Mar. 1, 2006, at 3. In pursuing this
protest, LAI has asserted that, had it been permitted to similarly propose
off-site web page designers/developers, it could have proposed more highly
qualified personnel. Declaration of LAI Vice-President, Mar. 28, 2006
at 3.
In a competitive procurement, a proposal that fails to conform to one or
more of the solicitation's material requirements is technically
unacceptable and cannot form the basis for an award. See Farmland Nat'l
Beef, B-286607, B-286607.2, Jan. 24, 2001, 2001 CPD, para. 31 at 8.
Similarly, an agency may not make an award, then immediately modify or
waive material requirements included in the solicitation which formed the
basis of the competition; rather, awards must be based on the requirements
and criteria disclosed in the solicitation. See, e.g., Universal Yacht
Servs., Inc., B-287071, B-287071.2, Apr. 4, 2001, 2001 CPD para. 74.
As noted above, the solicitation expressly provided:
It is expected that at least six of the seven contract staff personnel
(two graphics designers/scientific illustrators, two web
designer[s]/page developers, one graphic artist/animator and one image
researcher) will be located on site.
RFQ at 11-12.
Nonetheless, in responding to LAI's protest, the agency references another
portion of the solicitation, under the heading "Web Site Page and Feature
Design," which stated: "fulfilling these needs will require the contractor
to supply two full-time design and page-development personnel, at least
one of whom must work on-site at NSF." RFQ at 7. Relying on the statement
that "at least one" of the web page designer/developers must work on-site,
the agency maintains that the solicitation contained "contradictory
language" regarding the number of web page designers/developers required
to work on-site. We disagree.
When faced with a potential inconsistency between solicitation terms, this
Office will resolve the matter by reading the solicitation as a whole and
in a manner that gives effect to all of the provisions of the
solicitation. Fox Dev. Corp., B-287118.2, Aug. 3, 2001, 2001 CPD para. 140
at 2; Dr. Carole J. Barry, B-271248, June 28, 1996, 96-1 CPD 292 at 4. In
this regard, a specific solicitation provision must properly prevail over
a more general one. SeaSpace, B-239295, July 13, 1990, 90-2 CPD para. 33
at 3-5 (agency's reading of general solicitation requirement in a manner
that was inconsistent with a more specific requirement resulted in
contract award that effectively waived the specific solicitation
requirement to the competitive disadvantage of another offeror).
Here, the solicitation's general provision that "at least one" of the two
web page designers/developers must work on-site at NSF is entirely
consistent with the more specific provision that lists the particular
positions that will be required and specifically identifies those for
which on-site performance is necessary, including the positions of "two
web page designer/developers." RFQ at 11-12. Accordingly, we do not view
these provisions as containing "contradictory language" as the agency
asserts; rather, it is clear the solicitation required that both web page
designer/developer positions be performed by on-site personnel.
As discussed above, DRC clearly stated in its quotation that it did not
intend to comply with the on-site requirement for at least one of the web
page designer/developer positions, and the record establishes that the
agency clearly recognized this aspect of DRC's quotation; yet, the agency
evaluated the personnel proposed to fill these positions as constituting a
"Significant Strength." Further, in performing the contract, none of the
personnel DRC proposed to perform either of the two web page
designer/developer positions has ever performed on-site. Finally, as noted
above, LAI maintains that, had it been permitted to similarly propose
off-site personnel to fill these positions, it could have proposed more
qualified personnel.
On this record, it is clear that the agency permitted DRC to propose to
perform the contract requirements on a basis that was materially different
than that required by the solicitation. That is, the agency effectively
relaxed the solicitation's stated requirements for on-site performance
without providing an opportunity for the other competing firms to submit
quotations on a similar basis. See SeaSpace, supra. It is also clear that
the agency's relaxation of this requirement was detrimental to, and
prejudiced, LAI's competitive position.
The protest is sustained.
RECOMMENDATION
Based on the record, it appears that the solicitation's stated
requirements for on-site performance may not reflect the agency's actual
needs. Accordingly, we recommend that the agency review its needs. In the
event the agency determines that on-site performance is required as stated
in the solicitation, DRC's contract should be terminated and award made to
a contractor whose quotation complied with the solicitation requirements.
In the event the agency determines that the solicitation's requirements
for on-site performance are not necessary, the agency should amend the
solicitation to reflect its actual requirements, reopen negotiations with
all competitive range offerors, and award a contract on the basis of the
quotation offering the best value to the government, consistent with the
amended solicitation. If a contractor other than DRC is selected for
award, the agency should terminate DRC's contract and award to that
contractor. We also recommend that the agency reimburse the protester for
its costs of filing and pursuing the protest, including reasonable
attorneys' fees. Bid Protest Regulations, 4 C.F.R. sect. 21.8(d)(1)
(2005). LAI's certified claim for costs, detailing the time expended and
costs incurred, must be submitted directly to the agency within 60 days of
receiving this decision. 4 C.F.R. sect. 21.8(f)(1).
Anthony H. Gamboa
General Counsel
------------------------
[1] Although this procurement was conducted as a federal supply schedule
(FSS) purchase under Federal Acquisition Regulation (FAR) Part 8, the
terms used in the solicitation itself, as well as those employed by the
agency in conducting the procurement, frequently reflect terms that are
used in negotiated procurements conducted under FAR Part 15. Accordingly,
in summarizing various agency actions under the procurement, our decision
incorporates certain terms, as used by the agency, that are consistent
with FAR Part 15 procurements.
[2] The solicitation elaborated that, "[NSF] requires the services of a
contractor possessing demonstrated high-level expertise in creation of
original graphics depicting science and engineering subjects, and in
devising visually exciting page designs and other ways to display those
subjects on the web and in other contexts." RFQ at 5.
[3] The solicitation identified various qualifications that would be
assessed for each position. RFQ at 30-31.
[4] A quotation was also submitted by a third offeror. That quotation, and
the agency's evaluation of it, has no relevance to LAI's protest and is
not further discussed in this decision.
[5] DRC proposed to fill one of the web page designer/developer positions
by combining the time of two "principals in the firm of [deleted] [a DRC
subcontractor]." AR, Tab 8, DRC Proposal (June 20, 2005), at 6.
[6] With regard to past performance, the contracting officer concluded:
"The Past Performance results offered no clear basis for distinguishing
between the offerors and were not a discriminator." AR, Tab 28, Selection
Statement, at 5.
[7] In evaluating quotations under the technical merit factor, the agency
employed an evaluation system that applied the following adjectival
ratings and associated numerical scores: Excellent (91-100), Very Good
(71-90), Good (51-70), Fair (31-50) and Poor (0-30). AR, Tab 17, Technical
Evaluation Rating Guidelines, at 3.
[8] Because LAI's protest was filed more than 5 days after the debriefing
and more than 10 days after contract award, the agency was not required to
suspend contract performance.
[9] With regard to past performance, both DRC and LAI received ratings of
"Excellent," and the source selection official again concluded that "Past
Performance offered no clear basis for distinguishing between these two
offeror[s] and therefore was not a discriminator in my decision-making."
AR, Tab 21, Selection Statement, Dec. 22, 2005, at 9.
[10] DRC's proposed artists/illustrators were referred to as constituting
the other "Significant Strength."
[11] As noted above, DRC proposed to fill one of the web page
designer/developer positions with a combination of personnel located in
New York City. The individual proposed to fill the other web page
designer/developer position is located in the area, but has never worked
on-site at NSF.