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.