TITLE: B-297686, CRAssociates, Inc., March 7, 2006
BNUMBER: B-297686
DATE: March 7, 2006
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B-297686, CRAssociates, Inc., March 7, 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: CRAssociates, Inc.

   File: B-297686

   Date: March 7, 2006

   Devon E. Hewitt, Esq., Pillsbury, Winthrop, Shaw & Pittman, for the
   protester.

   Douglas Kornreich, Esq., Department of Health & Human Services, for the
   agency.

   David A. Ashen, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that agency was required under the provisions of Office of
   Management and Budget Circular A-76, as revised on May 29, 2003, to
   include technically unacceptable private sector offer in the initial
   competitive range under solicitation issued as part of a Circular A-76
   cost comparison study, is denied where solicitation clearly indicated that
   the agency contemplated conducting discussions only with offerors in the
   competitive range, and that not all offerors would be included in the
   competitive range; to the extent that protester believed it should be
   entitled to discussions even if its proposal were excluded from the
   competitive range, it was required to protest on this ground prior to the
   closing date for receipt of proposals.

   DECISION

   CRAssociates, Inc. (CRA) protests the rejection of its proposal as
   technically unacceptable, and the resultant elimination of its proposal
   from the competitive range, under Department of Health & Human Services
   (HHS) solicitation No. A-76Study01(05)AM. The solicitation was issued on
   August 5, 2005 as part of a cost comparison study, conducted pursuant to
   Office of Management and Budget (OMB) Circular A-76, as revised on May 29,
   2003, to determine whether to contract out--rather than continue to have
   performed in-house by HHS's Health Resources and Services Administration
   (HRSA), Division of Immigration Health Services (DIHS) employees--medical
   and support services for detainees in the custody of the Department of
   Homeland Security, Immigration Customs Enforcement (ICE). CRA primarily
   asserts that members of the agency's evaluation panel had impermissible
   conflicts of interest, and that HHS improperly failed to provide the firm
   an opportunity to remedy the evaluated deficiencies in its proposal.

   We deny the protest.

   DIHS provides on-site medical, dental and mental health care to ICE
   detainees coming from more than 100 countries and speaking more than 150
   languages, some of whom are extremely violent and/or display significant
   mental health disorders, and many of whom come from countries with a high
   prevalence of infectious diseases that are of public health importance.
   These detainees are housed in a variety of secure environments, including
   county or local jails, as well as ICE processing centers and contract
   detention facilities. Performance Work Statement (PWS) sect. 1.1.

   The solicitation provided for use of a lowest-cost/technically acceptable
   source selection method. In this regard, the solicitation stated that

     award will comply with the rules of OMB Circular A-76. This includes the
     conduct of a cost comparison between the Agency Tender and the
     low-cost/technically acceptable commercial offer/reimbursable tender.

   RFP sect. M.1. Offerors were generally advised that in order to be
   considered technically acceptable, "all the requirements (services and
   service levels) and standards" in the PWS must be met. Id. The RFP
   specifically provided for the determination of technical acceptability to
   be based upon evaluation of the following factors: (1) technical
   (including criteria for (a) technical approach, (b) management approach,
   including staffing approach and minimizing attrition, (c) transition plan
   and phase-in plan, (d) quality control plan, (e) accreditation plan of
   actions and milestones, (f) medical deployment plan, and (g) key personnel
   resumes); (2) past performance; and (3) price/cost (including criteria for
   (a) realism and balance and (b) business capacity). Offers were to receive
   either an excellent, good, marginal or poor rating under the technical and
   price/cost criteria, or an excellent, good, none, marginal or poor rating
   under the past performance factor. The RFP further provided in this regard
   that to be considered technically acceptable, an offer "must be evaluated
   as good or excellent in all technical criteria, all past performance
   criteria, and all price/cost criteria." RFP sect. M.4.[1]

   An agency tender based upon a most efficient organization (MEO) and a
   proposal from CRA were received in response to the solicitation. The
   agency tender was rated excellent under the transition/phase-in, quality
   control, accreditation and medical deployment criteria, and good under the
   technical approach, management approach, key personnel resumes, and
   price/cost realism and balance criteria, for an overall technically
   acceptable rating. In contrast, CRA's proposal was rated as marginal under
   the quality control, accreditation, and price/cost realism and balance
   criteria, and poor under the technical approach, management approach,
   transition/phase-in, medical deployment plan, and key personnel resumes
   criteria, for an overall unacceptable rating.

   Among the numerous evaluated deficiencies and weaknesses in CRA's proposal
   was the omission of required key personnel resumes. In this regard, the
   solicitation specifically required private sector offerors to "[p]rovide
   resumes for all key personnel identified by the Offeror." RFP sect.
   L.2.5.G. The PWS defined key personnel as including, at a minimum, the
   project manager, alternate project manager(s), and "[h]ighest-level
   personnel at each site," and listed 14 medical clinics in various parts of
   the United States (including Puerto Rico). PWS sections 1.4.4.4, 3.2.1. In
   its proposal, however, CRA only named and furnished resumes for the
   corporate project manager, project manager, assistant project manager, and
   medical director. CRA Proposal, Appendix E. CRA stated in its proposal
   that, "[a]lthough CRA agrees that the position of facility Health Services
   Administrator (HSA) should be considered a `Key Personnel' position under
   any resulting contract, we take exception to the RFP requirement to
   provide resumes of proposed key personnel." CRA Proposal, Executive
   Summary. CRA explained its failure to furnish resumes on the basis that
   "it is uncertain whether any of the existing HSAs would be interested in
   continuing their current capacity as a contractor employee," "[t]he short
   proposal due date has made it impractical to conduct a complete search for
   14 qualified candidates," and "many of the best qualified candidates are
   extremely hesitant to sign any commitment letters at this stage for a
   prospective job opportunity that is speculative, at best." Id.

   In view of the deficiencies and weaknesses in CRA's proposal, which led to
   unacceptable ratings under 8 of 10 evaluation criteria and an unacceptable
   rating overall, HHS excluded CRA's proposal from the competitive range.
   According to the agency's competitive range determination, "[m]any of
   [CRA's] weaknesses were considered so substantive (including their
   exception to providing the identity of many key personnel . . .) as to
   preclude the possibility of improving their score to an acceptable level
   without a major rewrite of their proposal which would be tantamount to
   submission of a new proposal." Competitive Range Determination at 1-2.
   Upon learning of the exclusion of its proposal from further consideration,
   CRA filed this protest with our Office.

   CONFLICT OF INTEREST

   CRA asserts that three of the seven evaluators on the agency's Technical
   and Past Performance Review Panel and two of the four evaluators on the
   Cost Evaluation Review Panel were employed within DIHS, and thus had a
   conflict of interest that should have precluded their participation in the
   evaluation. HHS responds that the evaluators in question held positions
   that were inherently governmental, and that therefore were outside the
   scope of the A-76 study.

   In conducting government business, including the evaluation of proposals
   as part of an A-76 study, the general rule is to avoid any conflict of
   interest or even the appearance of a conflict of interest. Federal
   Acquisition Regulation (FAR) sect. 3.101-1. In applying this general
   principle, we have held that at least the appearance of a conflict of
   interest exists where, in an A-76 cost comparison, an evaluator holds a
   position that is within the scope of the study and is subject to being
   contracted out. See DZS/Baker LLC; Morrison Knudsen Corp., B-281224 et
   al., Jan. 12, 1999, 99-1 CPD para. 19 at 5. However, we have also held
   that the appointment of evaluators who hold positions in the function
   under study is not necessarily improper if the positions are not directly
   affected, that is, are not in jeopardy of being contracted out. IT
   Facility Servs.--Joint Venture, B-285841, Oct. 17, 2000, 2000 CPD para.
   177 at 12.

   Circular A-76, as revised, itself specifically provides for the agency to
   appoint an evaluation team, referred to as the Source Selection Evaluation
   Board (SSEB), and specifies that:

     Directly affected personnel (and their representatives) and any
     individual (including, but not limited to, the [Agency Tender Official],
     [Human Resource Advisor], MEO team members, advisors, and consultants)
     with knowledge of the agency tender (including the MEO and agency cost
     estimate) shall not participate in any manner on the SSEB (e.g., as
     members or advisors).

   OMB Circular A-76, attach. B, sect. D.2.c (May 29, 2003). Circular A-76
   defines "Directly Affected Government Personnel" as "[g]overnment
   personnel whose work is being competed in a streamlined or standard
   competition." OMB Circular A-76, attach. D.

   Here, the record indicates that four of the seven evaluators on the
   agency's Technical and Past Performance Review Panel, and two of the four
   evaluators on the Cost Evaluation Review Panel occupy positions outside
   DIHS, the organization whose functions are under study. In addition,
   according to HHS, while the remaining evaluators on the panels occupy
   positions within DIHS, these positions are inherently governmental and
   thus not within the scope of the A-76 study. Specifically, the four
   reportedly inherently governmental evaluators (one individual served on
   both panels) are members of the U.S. Public Health Service Commissioned
   Corps, and occupy the following, managerial, DIHS positions: DIHS Chief
   Pharmacist and Telehealth Coordinator, Associate Director for Management
   and Budget for DIHS, program manager for the DIHS Detention Management and
   Control Program, and DIHS Information Technology Manager. Agency Comments,
   Jan. 24, 2006, at 2-3, Declaration of DIHS Competitive Sourcing Management
   Analyst.

   CRA challenges HHS's characterization of these four evaluators' positions
   as inherently governmental, asserting that the agency's claim is
   inconsistent with HHS's 2004 inventory of positions, published as required
   under the Federal Activities Inventory Reform (FAIR) Act of 1998, 31
   U.S.C.A. sect. 501 note, which directs federal agencies to issue annually
   an inventory of all commercial activities performed by federal employees.
   Specifically, CRA argues, since the 2004 FAIR Act inventory indicates
   (without specifying the specific position in question) that only 10
   positions within all of DIHS are inherently governmental, and a number of
   these inherently governmental positions undoubtedly are those of the DIHS
   director, deputy director, chief of staff, and various branch chiefs, it
   is unlikely that the positions held by the evaluators here also were
   inherently governmental.

   HHS responds by explaining that the mission of DHIS was enlarged in fiscal
   year 2005, resulting in an increase in the number of FTEs assigned to
   DIHS, and that, in preparation for the 2005 inventory, the process used to
   define the functions performed within HHS was revised. As a result, the
   number of inherently governmental positions within DIHS reported in the
   draft 2005 inventory increased significantly above the number in the 2004
   inventory, to approximately 35 positions. HHS Comments, Feb. 3, 2006.

   Having reviewed a copy of the relevant worksheet of inherently
   governmental positions within DIHS, as included in HHS's submission of the
   2005 inventory to OMB for review, we find no basis to question HHS's
   assertion that the four evaluators occupy inherently governmental
   positions and thus are outside the scope of the A-76 study. In this
   regard, we note that the worksheet for the 2005 inventory specifically
   identified the positions held by the four evaluators in question as
   inherently governmental. Id. Accordingly, there is no basis to conclude
   that a number of the evaluators should have been precluded from
   participating in the evaluation on account of conflicts of interest.

   PROPOSAL DEFICIENCIES

   CRA asserts that HHS was required under Circular A-76 to afford it an
   opportunity to remedy the evaluated deficiencies in its proposal. In this
   regard, CRA cites the following:

     If the [contracting officer] perceives that a private sector offer,
     public reimbursable tender, or agency tender is materially deficient,
     the [contracting officer] shall ensure that the [Agency Tender
     Official], private sector offeror, or the public reimbursable tender
     official receives a deficiency notice. The [contracting officer] shall
     afford the [Agency Tender Official], the private sector offeror, or the
     public reimbursable tender official a specific number of days to address
     the material deficiency and, if necessary, to revise and recertify the
     tender or offer. . . . If the [contracting officer] determines that a
     private sector offeror or public reimbursable tender official has not
     corrected a material deficiency, the SSA may exclude the private sector
     offer or public reimbursable tender from the standard competition.

   OMB Circular A-76, attach. B, sect. D.5.c(3).

   Here, the agency acted consistently with the terms of the solicitation. As
   noted by HHS, the solicitation set forth the following FAR provision,
   included in section L, "Instructions, Conditions, and Notices to Offerors
   or Quoters":

     The Government intends to evaluate proposals and award a contract after
     conducting discussions with Offerors whose proposals have been
     determined to be within the competitive range. If the Contracting
     Officer determines that the number of proposals that would otherwise be
     in the competitive range exceeds the number at which an efficient
     competition can be conducted, the Contracting Officer may limit the
     number of proposals in the competitive range to the greatest number that
     will permit an efficient competition among the most highly rated
     proposals. Therefore, the Offeror's initial proposal should contain the
     Offeror's best terms from a price and technical standpoint.

   FAR sect. 52.215-1, Instructions to Offerors--Competitive Acquisition,
   Alternate I (Oct. 1997). We agree with HHS that this solicitation
   provision clearly indicated that the agency contemplated conducting
   discussions only with offerors in the competitive range, and that not all
   offerors would be included in the competitive range.

   Our Bid Protest Regulations contain strict rules requiring timely
   submission of protests. These rules specifically require that protests
   based upon alleged improprieties in a solicitation that are apparent prior
   to the time set for receipt of proposals be filed prior to that time. 4
   C.F.R. sect. 21.2(a)(1) (2005). At best, there was a patent ambiguity in
   the solicitation between the Circular A-76 requirement that a private
   sector offeror be provided an opportunity to address material proposal
   deficiencies (arguably incorporated into the solicitation by the statement
   that "award will comply with the rules of OMB Circular A-76," RFP sect.
   M.1), and the clear notice in the solicitation instructions that not all
   proposals would be included in the competitive range for discussion
   purposes. Such an ambiguity constitutes a solicitation impropriety; thus,
   if CRA believed it should be entitled to discussions even if its proposal
   were excluded from the competitive range, it was required to protest on
   this ground prior to the closing date for receipt of proposals. Because
   CRA did not protest until after its proposal was rejected, its protest in
   this regard is untimely and will not be considered. See University
   Research Co., LLC, B-294358.6, B-294358.7, Apr. 20, 2005, 2005 CPD para.
   83 at 19 n.17. [2]

   In any case, our Office will not sustain a protest absent a showing of a
   reasonable possibility of prejudice, that is, unless the protester
   demonstrates that, but for the agency's actions, it would have had a
   substantial chance of receiving the award. McDonald Bradley, B-270126,
   Feb. 8, 1996, 96-1 CPD para. 54 at 3; see Statistica, Inc. v. Christopher,
   103 F.3d 1577, 1581 (Fed. Cir. 1996). We find no prejudice from the
   agency's failure to conduct discussions with CRA. Although CRA was
   furnished with the nine-page list of proposal deficiencies and weaknesses
   during its debriefing, see CRA Protest at 5, 9, CRA has made no showing
   that it would or could have remedied the numerous shortcomings in its
   proposal through discussions. This is especially significant since: (1) by
   admission in its proposal, it was unable to meet the solicitation
   requirement for resumes for the "[h]ighest-level personnel" at each of the
   14 medical clinic sites, notwithstanding that it agreed with the agency
   that such "facility Health Services Administrator[s] should be considered
   a `Key Personnel' position," PWS sections 1.4.4.4, 3.2.1; CRA Proposal,
   Executive Summary; and (2) it was required under the terms of the
   solicitation to raise each of its eight marginal or poor evaluation
   ratings to good or excellent in order for its proposal to be considered
   acceptable. RFP sect. M.4.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] The agency tender was not required to include resumes for key
   personnel, and was not to be evaluated under the past performance factor
   or business capacity criterion of the price/cost factor. RFP sections
   L.2.G, M.3.

   [2] Given the solicitation language here, we need not address what the
   significance of the Circular A-76 language cited by CRA would be in other
   circumstances.