TITLE: B-298033.4; B-298033.5, American Systems Consulting, Inc., March 28, 2007
BNUMBER: B-298033.4; B-298033.5
DATE: March 28, 2007
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B-298033.4; B-298033.5, American Systems Consulting, Inc., March 28, 2007
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: American Systems Consulting, Inc.
File: B-298033.4; B-298033.5
Date: March 28, 2007
Daniel A. Bellman, Esq., and William R. Wernet, Esq., Daniel A. Bellman
Law Office, for the protester.
Paul F. Khoury, Esq., and Joseph E. Ashman, Esq., for ManTech Security
Technology Corp., an intervenor.
James W. DeBose, Esq., Defense Information Systems Agency, for the agency.
Sharon L. Larkin, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest challenging technical and cost/price evaluation of proposals for
systems and software engineering support services is denied, where
evaluation record supports agency's findings and award was reasonably made
to an offeror with a higher technically rated, lower priced proposal.
DECISION
American Systems Consulting, Inc. (ASCI) protests the award of a contract
to ManTech Security Technologies Corp. (ManTech) issued by the Defense
Information Technology Contracting Organization under request for
proposals (RFP) No. HC1013-05-R-2026 for systems and software engineering
support services for the Defense Commissary Agency (DeCA). ASCI challenges
the evaluation of proposals and requests reimbursement of the costs of
filing and pursuing previous protests under this solicitation.
We deny the protest and request for costs.
BACKGROUND
DeCA manages commissary operations worldwide for the Department of
Defense. These operations are supported with various systems using
commercial-off-the-shelf, government-off-the shelf, and in-house
applications. The DeCA Interactive Business System (DIBS), the Computer
Assisted Ordering (CAO), and Pick Management System (PkMS) are three
legacy systems currently supporting DeCA.[1] RFP, Performance Work
Statement, at 18. For the past 15 years, ASCI has been the primary support
contractor for these DeCA systems and has been the sole contractor
supporting DIBS and CAO for the past 3 years.
The RFP required systems and software engineering support services for the
three legacy systems (DIBS, CAO, and PkMS) to "maintain the current
baselines." In addition, the RFP required the development of new business
system applications to replace the legacy systems. RFP, Performance Work
Statement, at 18. The RFP provided for award of an
indefinite-delivery/indefinite-quantity (ID/IQ) contract with
firm-fixed-price and time-and-materials delivery orders. Contract
performance was to occur over a 62-month period, consisting of a 2-month
phase-in period, a 1-year base period, and four 1-year option periods. RFP
at 2-13. The RFP identified three evaluation factors, listed in descending
order of importance: technical and management capability, present and past
performance, and cost/price. The technical and management capability
factor included five equally ranked subfactors: technical approach,
software development processes, technical workforce management, delivery
order management, and phase-in plan. The present and past performance
factor included three equally ranked subfactors: cost control, schedule,
and quality of performance and customer satisfaction. RFP at 71.
The RFP stated that cost/price would be evaluated for the "discounted life
cycle cost" (DLCC), which was to be determined based on proposed prices,
hours, and travel entries that offerors were to list in six separate
tables provided with the solicitation. For each table, the RFP identified
an "estimated" period of time applicable to that table (which was
associated with an estimated phase-in, base, or option period) and the
number of hours estimated for various labor categories. Offerors were to
input the location, hourly rate, and price for each of these labor
categories, and sum the totals for all labor categories to obtain an
overall price for the performance period. The total price for each period
(phase-in, base, and option year) was then multiplied by "discount
factors" identified in the RFP, and the sum of these totals resulted in
the DLCC. RFP at 62-68, 76.
The RFP was issued on June 16, 2005. Six offerors responded and four
proposals, including ASCI's and ManTech's, were found to be in the
competitive range. After conducting discussions and evaluating final
proposal revisions from those offerors remaining in the competitive range,
the agency selected ManTech for award in February 2006. On February 27,
ASCI protested the award, raising numerous challenges to the evaluation.
After submitting its report responding to the protests and participating
in a conference call where GAO indicated that a hearing was necessary
primarily because of a lack of evaluation documentation, the agency
decided to take corrective action to include reevaluating the proposals.
The notice of corrective action stated that the agency intended to:
(1) establish a new Performance Risk Analysis Group (PRAG) to include at
least one [Defense Information Systems Agency (DISA)] member, (2)
perform new technical and management capability evaluations and present
and past performance evaluations consistent with the terms of the RFP,
(3) make a new source selection determination based on the offerors'
re-evaluated proposals, and (4) retain all evaluation materials
generated during the re-evaluation.
Protest, Tab A. Based on this notice of corrective action, our Office
dismissed the protest on April 10. ASCI thereafter filed a request for
entitlement to costs, which it later withdrew based on a "settlement
agreement" with the agency that ASCI entered into after we dismissed the
protest.
The agency reevaluated proposals without reopening discussions. The PRAG
(which included a DISA member) evaluated present and past performance, and
the source selection evaluation team (SSET) evaluated technical and
management capability and cost/price. ASCI and ManTech were rated as
follows:
+------------------------------------------------------------------------+
| | ASCI | ManTech |
|----------------------+--------------------------+----------------------|
|Technical & Management| Green/Moderate Risk | Green/Low Risk |
|Capability | | |
|----------------------+--------------------------+----------------------|
| |Technical Approach | Green/Low Risk | Green/Low Risk |
| |--------------------+--------------------------+----------------------|
| |Software Development| Green/Low Risk | Green/Low Risk |
| |Processes | | |
| |--------------------+--------------------------+----------------------|
| |Technical Workforce | Yellow/Moderate Risk | Green/Low Risk |
| |Management | | |
| |--------------------+--------------------------+----------------------|
| |Delivery Order | Green/Low Risk | Green/Low Risk |
| |Management | | |
| |--------------------+--------------------------+----------------------|
| |Phase-In Plan | Green/Low Risk | Green/Low Risk |
|----------------------+--------------------------+----------------------|
|Present and Past | Very Good/ Significant |Very Good/ Significant|
|Performance | Confidence | Confidence |
|----------------------+--------------------------+----------------------|
|Cost/Price (DLCC) | $16,355,447.29 | $16,089,317.38 |
+------------------------------------------------------------------------+
Agency Report, Tab 29, Source Selection Authority (SSA) Decision, at 16.
The SSA agreed with the findings of the SSET and PRAG, which rated both
offers similarly under all evaluation subfactors except for the technical
workforce management subfactor of the technical and management capability
factor. Under this subfactor, the SSA identified two deficiencies that led
to ASCI's yellow/moderate risk rating. First, the SSA found that ASCI's
proposal failed to "adequately explain how the Offeror intends to
integrate the appropriate [team members'] workforce into its [REDACTED].
In addition, the SSA found that ASCI's proposal provided only "minimal
details on how they will manage the technical workforce," and did "not
present[] an adequate plan to minimize the use of [its] direct workforce
for management and administration." Id. at 6. ManTech's proposal, on the
other hand, received a green/low risk rating with an identified strength
under this subfactor for ManTech's [REDACTED]; ManTech's proposal received
no identified weaknesses or deficiencies. Id. at 9.
Under various other technical and management capability subfactors, the
SSA favorably recognized ASCI's 15 years experience with the DeCA business
applications (which included experience with the legacy systems to be
supported under the RFP), the availability of its incumbent workforce to
support the legacy systems, and the shorter phase-in period that ASCI
proposed. Id. at 6, 16. The SSA also favorably recognized ManTech's 14
years of experience with DeCA financial applications and Internet
Technology (IT) support; the availability of its technical workforce,
facilities, and equipment; a "well-defined" user support plan; a
"comprehensive" training plan; and an "integrated" management plan and
schedule. Id. at 9-10, 16-17.
The SSA found no meaningful discriminators between the two offerors'
proposals under the present and past performance factor, and "[s]ince
ManTech had the lowest proposed DLCC and no offeror submitted a proposal
that exceeded ManTech's in either the Technical and Management Capability
Factor or Past and Present Performance Factor," the SSA determined that
there was "no basis for making a trade-off to a higher priced offeror."
Id. at 19.
The SSA made award to ManTech in December 2006, and on December 28, ASCI
protested this award to our Office. ASCI complained that the agency once
again misevaluated proposals.[2] On January 29, 2007, ASCI reinstated its
request for reimbursement of costs associated with the previously filed
protests (B-298033.1 and B-298033.2) on the grounds that the agency did
not fully implement the corrective action promised in its settlement
agreement with ASCI.
DISCUSSION
ASCI challenges the evaluation of its and ManTech's proposals under three
of the technical and management capability subfactors and under the
cost/price factor.[3] In reviewing such protests, our Office does not
reevaluate proposals, but instead examines the record to determine whether
the agency's judgment was reasonable and in accord with the RFP criteria.
Abt Assocs., Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD para. 223 at 4. A
protester's mere disagreement with the agency's judgment does not
establish that an evaluation was unreasonable. UNICCO Gov't Servs., Inc.,
B-277658, Nov. 7, 1997, 97-2 CPD para. 134 at 7.
ASCI asserts that its proposal should have been rated superior to
ManTech's under the technical approach and phase-in plan subfactors. The
primary thrust of ASCI's argument is that it's proposal deserved more
favorable ratings because ASCI is the long-term incumbent with 15 years of
experience with the DeCA legacy systems, and no other offeror has similar
experience or can conduct the phase-in as quickly or as efficiently.
With regard to the technical approach subfactor, the RFP provided that the
agency would evaluate each proposal to determine whether it
"demonstrate[d] a clear understanding of support requirements and a
comprehensive approach to accomplishing tasks in all the technical areas
identified in the Performance Work Statement," specifically listing the
following five areas: (a) system and software analysis, evaluation,
design, development, and testing; (b) quality improvement; (c) user
support (help desk); (d) software configuration management; and (e) user
training. RFP at 73.
As the agency reasonably explains, although the RFP requires support for
the DeCA legacy systems that ASCI currently supports under its incumbent
contract, the RFP contemplates replacing those systems. As such, the RFP
incorporates "new software development needs, on site support
requirements, performance measures, implementation of [Department of
Defense] mandates and key personnel qualifications" that are "broader in
scope" and "substantially different" from ASCI's incumbent contract. AR at
21-22. Recognizing the difference in scope, the evaluation criteria under
the technical approach subfactor specifically calls out the system and
software analysis, evaluation, design, development, and testing area as
one of the five enumerated technical areas that were to be evaluated.
Consistent with this evaluation scheme, the record shows that the SSA
recognized as a strength under the technical approach subfactor ASCI's 15
years of experience at DeCA supporting its business applications,
specifically noting ASCI's "substantial" knowledge of the "DIBS, CAO and
PkMS day-to-day operations and DeCA infrastructure." AR, Tab 29, SSA
Decision, at 6. However, the SSA also found that ManTech had 14 years of
experience supporting and maintaining DeCA financial applications and
operations support, including Internet Technology (IT) support, and, in
addition to other notable strengths, ManTech demonstrated how the
integration of certain processes would "enhance [ManTech's] ability to
deliver quality software analysis and development." Id. at 9. ManTech's 14
years of experience supporting DeCA systems included providing "systems
engineering, design, integration, deployment and training, operations, and
systems maintenance activities," which are relevant to the activities
required here. AR, Tab 5, ManTech Proposal, at 2. ManTech's proposal also
demonstrated the firm's familiarity with the "data structures, programming
languages, operating systems, interfaces and sources of malfunctions in
the legacy systems."[4] ManTech Comments (Feb. 22, 2007) at 8-9; AR, Tab
5, ManTech Proposal, at 17-21. In addition, ManTech has been instrumental
in migrating other DeCA systems to a more modern architecture. E.g., AR,
Tab 5, ManTech Proposal, at 2, 4. Thus, while ASCI's more extensive legacy
system experience was positively considered under this evaluation
subfactor, ManTech's experience was also properly found to be relevant and
was reasonably considered in a favorable manner such that both proposals
were deserving of a green/low risk rating under the technical approach
subfactor.[5]
Similarly, under the phase-in plan subfactor, both ASCI's and ManTech's
proposal were reasonably evaluated. The SSA credited ASCI's proposal for
offering a "shorter phase-in period"[6] and the "use of currently
available workforce to assume the support of the legacy applications." AR,
Tab 29, SSA Decision, at 7. ManTech's proposal was also reasonably
assessed strengths for including the "use of [its] available technical
workforce, office facility and equipment [which was] already in place" and
for having "dedicate[d] corporate resources during the phase-in period."
Id. at 10. Although ASCI disagrees with the ratings assigned to each
proposal, it has not shown that the rating assessments, or the rationale
supporting these assessments, were unreasonable.
ASCI next complains that its proposal was unreasonably assessed two
weaknesses under the technical workforce management subfactor of the
technical and management capability factor, which led to the proposal's
yellow/moderate risk rating under this subfactor. The two
"inadequacies/deficiencies" in ASCI's proposal identified by the SSA were
that
[ASCI] proposed the use of a [REDACTED] for the management of contract
and technical work. The [REDACTED] attached as an appendix displays the
[REDACTED], but does not adequately explain how the Offeror intends to
integrate the appropriate [REDACTED] workforce into its [REDACTED].
and that
[ASCI] has provided minimal details on how they will manage the
technical workforce but has not presented an adequate plan to minimize
the use of this direct workforce for management and administration.
AR, Tab 29, SSA Decision, at 6. The SSA went on to say, in assessing risk,
that "more than usual oversight" would be required to correct the
inadequacies, specifically noting that
Program schedule delays could result from the lack of an integrated
technical workforce and increased costs and schedule delays could result
from use of technical workforce to perform administrative duties
requiring additional government oversight.
Id. at 7.
As the record shows, the agency raised both inadequacies with ASCI during
discussions and fully considered ASCI's responses, but reasonably
concluded from ASCI's responses that the proposal "did not convey an
adequate clarification" to resolve the agency's concerns.[7] AR, Tab 28,
Final Evaluation Report, at 38; see also AR, Tab 6, Evaluation Notices, at
6, 10; Tab 8, ASCI Response, at 31, 35. Thus, the "lack of a clear plan"
to integrate the proposed workforces and to minimize the use of direct
support personnel for management and administration resulted in ASCI's
proposal receiving a yellow/moderate risk rating for this subfactor. AR,
Tab 28, Final Evaluation Report, at 38. Although ASCI disagrees with this
assessment, it has not shown it to be unreasonable. UNICCO Gov't Servs.,
Inc., supra, at 7.
Next, ASCI protests the agency's cost/price evaluation. It asserts that an
"ambiguity exists in the Solicitation as to what pricing applies" given
the fact that "so much time has passed" from when offerors submitted their
pricing proposals back in 2005. ASCI Comments (Feb. 5, 2007) at 18. ASCI
argues that because some areas of the solicitation specifically associate
dates with the phase-in, base, and option periods of performance, while
other areas of the solicitation do not, it became unclear as time passed
which contract year pricing should be considered in the evaluation.
Accordingly, ASCI asserts, the agency should amend the solicitation and
reopen discussions to allow for revised cost proposals.
It is true that schedule B of the solicitation described the phase-in
period as being from "1 Aug 2005 thr[ough] 30 Sep 2005," the base period
of performance as being from "1 Oct 2005 thr[ough] 30 Sep 2006," and the
option periods as running from October 1 through September 30 of
subsequent years. RFP at 2, 4, 6, 8, 10, 12; see also id. at 47
(incorporating FAR sect. 52.216-18, which specifies an end date of
contract performance as "30 Sep 2010"). However, elsewhere in the
solicitation, including in sections L and M, the RFP made clear that the
cost/price evaluation was to be conducted based on estimated contract
years. For example, the cost/price evaluation factor in section M refers
to "Evaluation Tables 1-6" contained in section L of the RFP, and these
tables all state that the dates associated with periods of performance are
"estimated" dates only. Id. at 62-68. Section M also identifies the
"discount factors" generically as "CY1," "CY2," etc. (which refers to
contract years) and not specific dates. Id. at 76. In our view, the
cost/price evaluation criteria was clear and not ambiguous in describing
how proposal pricing would be evaluated, and adequately informed offerors
that the evaluation would be based on estimated and not fixed performance
dates. The record shows that both offerors were evaluated in a fair
manner, using this evaluation scheme. To the extent that ASCI asserts that
offerors' pricing is now outdated, it has not demonstrated that it has
been prejudiced as a result, since both offerors were evaluated using the
same contract year pricing tables.[8] McDonald-Bradley, B-270126, Feb. 8,
1996, 96-1 CPD para. 54 at 3; see Statistica, Inc. v. Christopher,
102-F.3d 1577, 1681 (Fed. Cir. 1996).
In addition, ASCI asserts that the agency "amended" the solicitation
requirements when it awarded the contract to ManTech because it extended
the overall duration of the contract beyond the initial specified dates in
the RFP. ASCI Comments (Feb. 5, 2007) at 19. We do not agree that the
duration of the overall contract performance has been extended. The RFP
included FAR sect. 52.211-9200 which identified the "Period of Contract"
as commencing on the date of contract award and continuing for 62
months--which consists of a phase-in period, a base year, and four 1-year
options--and ManTech's contract does not extend beyond this duration. RFP
at 42. Furthermore, when the solicitation is read as a whole, we think it
is clear that the dates of performance for each period are estimated dates
based on the date of award, and not fixed dates as described by ASCI.
Therefore, we find no basis to sustain the protest on this ground.
Finally, ASCI requests that we "reinstate" its request for reimbursement
of protest costs incurred during the previous round of protests
(B-298033.1 and B-298033.2). The bases for ASCI's request is that the
agency did not conduct a "new" evaluation,[9] and did not exert its "best
efforts" to include a DISA representative on the SSET, which breached the
settlement agreement that the parties entered into and resulted in ASCI
accepting a reduction in costs.
Our Bid Protest jurisdiction is limited to deciding protests "concerning
an alleged violation of a procurement statute or regulation." 31 U.S.C.
sect. 3552 (2004). Thus, in cases such as this, we will not consider an
argument concerning compliance with a settlement agreement except to the
extent that the protest asserts that the alleged breach resulted in a
prejudicial violation of procurement law or regulation. U-Tech Servs.
Corp.; K-Mar Indus., Inc., B-298418.3, B-2984183.4, Oct. 6, 2000, 2002 CPD
para. 78 at 3. ASCI has not shown that the agency's alleged breach
resulted in such a violation.
In any event, there is no basis on the merits to provide ASCI with
additional protest costs. Our Office may recommend reimbursement of
protest costs if we sustain a protest, or where the agency unduly delays
taking corrective action in the face of a clearly meritorious protest. 4
C.F.R. sect. 21.8(d), (e) (2006). In this case, we did not sustain the
protest, and even though the agency took corrective action in the previous
bid protest proceedings after filing its agency report, that protest was
not clearly meritorious. As our Office indicated at the time, a hearing
was going to be necessary to further develop the record to decide the
merits of the case. Thus, we believe that the protest was a close call and
not clearly meritorious. Accordingly, ASCI has not met the standard of
demonstrating entitlement to additional protest costs as a result of its
earlier filed protests. Overlook Sys. Tech., Inc.--Costs, B-298099.3, Oct.
5, 2006, 2006 CPD para. 184 at 7.
The protest and request for costs are denied.
Gary L. Kepplinger
General Counsel
------------------------
[1] DIBS and CAO are in-house developed and maintained systems that
provide support for commissary business processes such as ordering,
receiving, warehousing, and inventory management. PkMS is a
commercial-off-the-shelf system that provides warehousing functions with
DeCA distribution centers in Europe. RFP, Performance Work Statement, at
18.
[2] In its comments on the agency report, ASCI for the first time asserted
that ManTech made a material misrepresentation in its proposal that should
have disqualified the firm from competition. By decision dated March 9,
2007, we dismissed that protest allegation as untimely. ASCI has requested
reconsideration of that dismissal, which will be the subject of a future
decision.
[3] ASCI also initially challenged the evaluation of proposals under the
present and past performance factor, and protested that the agency
improperly weighted the evaluation criteria. Protest at 4-5, 8-9. However,
ASCI abandoned these arguments when it failed to comment on these issues
in response to the agency report, which fully addressed these issues.
Knowledge Connections, Inc., B-297986, May 18, 2006, 2006 CPD para. 85 at
2 n.2.
[4] Thus, contrary to ASCI's assertions, it is not the only firm with
relevant experience with the legacy systems.
[5] ASCI asserts that ManTech has less experience in providing user
support (help desk) and user training--two of the tasks considered under
the technical approach subfactor--for the DeCA legacy systems, but the
record shows that ManTech has user support and training skills sufficient
to support its green/low risk rating under the technical approach
subfactor. See AR, Tab 5, ManTech Proposal, at 13-16, 18-21. The record
does not support ASCI's belief that its proposal was deserving of a higher
blue rating.
[6] The RFP required that the phase-in period be concluded "not later than
60 days after contract award." RFP at 74. ASCI asserts that "some
portions" of ManTech's proposal extend beyond the 60 days. This
mischaracterizes ManTech's proposal, which only indicates that some of the
phase-in activities would also be "referenced or included in other
segments of the operation" because certain areas identified in the
phase-in plan are also "critical to ongoing areas of support for the
[systems and software engineering support services] contract." AR, Tab 5,
ManTech Proposal, at A5-20.
[7] ASCI claims that ManTech received more specific guidance during
discussions regarding workforce management concerns which, according to
ASCI, evidences unequal treatment. Comments at 17-18. However, we find
that the discussions held with each offeror were meaningful and not
unequal or unfair. ASCI's other complaints of inadequate discussions under
the technical management capability factor were abandoned when ASCI failed
to comment on these issues in response to the agency report, which fully
addressed these issues. Knowledge Connections, Inc., supra, at 2 n.2.
[8] ASCI asserts that had the agency reopened discussions, it would have
kept its 2005 pricing as its 2007 pricing and that ManTech would not;
however, ASCI's self-serving statements are not adequately supported by
the record and do not demonstrate that ManTech's proposed pricing would
have been higher than ASCI's.
[9] ASCI complains that dates on the team summary reports show that
"individual evaluators knew what they were going to do before they even
started their individual evaluation on ASCI's proposal" and that the
"agency appears to have simply created documents to support its earlier
evaluation" instead of conducting a new evaluation. ASCI Comments (Feb. 5,
2007) at 22. This supposition and innuendo does not evidence a flawed
evaluation or that the agency acted with improper motives. United Med.
Sys.--DE, Inc., B-298438, Sept. 27, 2006, 2006 CPD para. 148 at 4. As
discussed above, we find the agency's evaluation to be well reasoned and
supported by the contemporaneous record.