TITLE: B-298259, Southwest Educational Development Laboratory, July 10, 2006
BNUMBER: B-298259
DATE: July 10, 2006
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B-298259, Southwest Educational Development Laboratory, July 10, 2006

   Decision

   Matter of: Southwest Educational Development Laboratory

   File: B-298259

   Date: July 10, 2006

   Wesley A. Hoover for the protester.

   Jeffrey C. Morhardt, Esq., Department of Education, for the agency.

   Jeanette M. Soares and James A. Spangenberg, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest of evaluation of small business subcontracting plan as not
   consistent with the solicitation is denied where protest is premised upon
   misinterpretation of the solicitation.

   DECISION

   Southwest Educational Development Laboratory (SEDL) protests the award of
   a contract under request for proposals (RFP) No. ED-05-R-0006 to Edvance
   Research Inc. by the Department of Education for the operation of the
   Southwestern Regional Educational Laboratory.

   We deny the protest.

   The RFP, issued on July 15, 2005, was for a 5-year fixed-price, award fee
   contract to operate the laboratory. The evaluation factors were price,
   past performance and technical merit. The technical merit factor had three
   subfactors: soundness and responsiveness of technical plan to statement of
   work and expertise, experience, availability and commitment of relevant
   personnel (90 points); management and organizational experience and
   capability (10 points); and small business subcontracting plan (25
   points). Although price was said to be a substantial factor in the source
   selection, the quality factors, including technical merit and past
   performance, when considered together were significantly more important
   than price.

   On September 20, 2005, the agency issued amendment No. 4 which added the
   following with regard to the small business subcontracting plan subfactor:

     In order to be eligible for contract award, an offeror must propose a
     subcontracting plan with a minimum of 15% of the total contract dollars
     to small business, small disadvantaged business, woman-owned small
     business, HUBZone small business or Service-Disabled Veteran-Owned Small
     Business. An award will not be made to an offeror without a
     subcontracting plan that proposes, at a minimum, 15% of total contract
     dollars going to small businesses by time of award.

     All offerors considered eligible for contract award shall have until
     time of award to finalize small business subcontracting partnerships.

     A subcontracting plan that proposes work in excess of 15% of the total
     contract dollars subcontracted to a small business, small disadvantaged
     business, woman-owned small business, HUBZone small business or
     Service-Disabled Veteran-Owned Small Business will receive up to 25
     points. These points will be added to a technical score to arrive at a
     total evaluated score for purposes of award decision.

     The Department will establish a competitive range based on Technical
     merit and cost, without scoring the subcontracting plan. However, a
     subcontracting plan must be negotiated by time of award, at which time
     the additional points for the subcontracting plan will be added.

   RFP amend. 4, at 6 (emphasis in original).

   The protester and awardee submitted proposals by the October 3, 2005
   closing date. The agency evaluated these proposals and included both
   proposals in the competitive range. The agency opened negotiations with
   both offerors by sending technical and business negotiation questions. In
   one of the questions SEDL received concerning its small business
   subcontracting plan, the agency notified SEDL that its proposed major
   subcontractor was not a small business concern as claimed in the proposal
   and in order to be credited under this subfactor a small business concern
   must be proposed. AR, Tab 22, SEDL First Round of Technical and Business
   Negotiation Questions.

   The offerors' responses to the written negotiation questions and
   corresponding revisions to the proposals became their interim revised
   proposals. In its interim

   revised proposal, SEDL changed its small business subcontracting plan to
   remove the ineligible large business and increase the portion of work
   subcontracted to small businesses to 18.72 percent. AR, Tab 26, SEDL
   Interim Revised Business Proposal, at 7.

   On December 1, 2005, the agency issued amendment No. 5 to the RFP.
   Amendment No. 5 altered the evaluation scheme so that small businesses
   would automatically receive the full 25 points allotted for the small
   business subcontracting plan subfactor and large businesses would receive
   3 points for every percentage point above the 15-percent minimum
   requirement up to the maximum of 25 points. The remainder of the
   evaluation scheme of the small business subcontracting plan subfactor was
   identical to that set forth in Amendment No. 4. RFP amend. 5, at 6.

   Following the agency's evaluation of the interim revised proposals, the
   protester and awardee received a final round of negotiation questions on
   December 6. The instructions accompanying these questions told offerors to
   submit their responses to the questions as well as final revised technical
   and cost proposals by December 19, 2005. AR, Tab 42, E-mails to/from SEDL,
   at 11. The same day it received the final round of negotiation questions,
   SEDL sought clarification about how fractions of a percentage point would
   be evaluated for the small business subcontracting plan subfactor and
   indicated that it might revise its plan depending on the agency's
   response. AR, Tab 42, E-mails to/from SEDL, at 17.

   The next day SEDL sent the contracting officer a lengthy e-mail expressing
   several concerns with amendment No. 5. The concerns relevant to this
   protest included SEDL's expressed belief that the amendment's evaluation
   scheme unfairly favored small business offerors and that the amendment's
   introduction at this juncture of the competitive process would irreparably
   jeopardize SEDL's opportunity for award. AR, Tab 42, E-mails to/from SEDL,
   at 18. The agency responded by holding a conference call with SEDL on
   December 12. Both parties agree that during this conference call the
   agency confirmed that SEDL would receive 25 points if it increased its
   small business subcontracting plan to 23 percent of the contract dollar
   work.[1] AR at 7; Protest at 2.

   The agency evaluated the final revised proposals and found the protester's
   and awardee's proposals to be essentially equal under the technical merit
   and past performance factors (notwithstanding that SEDL's point score for
   these factors was slightly higher), not counting the small business
   subcontracting plan factor. The offerors also proposed identical prices
   but different award fees; the agency considered these differences
   insignificant.[2] AR, Tab 38, Negotiation Memorandum, at 31. SEDL's
   proposal received 12 of the 25 points allotted for the small business
   subcontracting plan, 3 points for each of the 4 percentage points in small
   business subcontracting that SEDL proposed above 15 percent, while the
   awardee received 25 points because it was a small business concern. Id. at
   32-33. The record indicates that this subfactor was the ultimate award
   discriminator among the proposals.

   SEDL learned about the agency's evaluation of both proposals at its
   debriefing and protested the award to the agency. Following the agency's
   denial of the protest, SEDL filed this protest.

   SEDL alleges that the agency did not follow the evaluation procedure
   delineated in amendment No. 5 to the RFP in evaluating the small business
   subcontracting plans. SEDL contends that under amendment No. 5 the agency
   should have established the competitive range based on the technical and
   past performance ratings without regard to scoring the small business
   subcontracting plan subfactor, then negotiated "the best small business
   subcontracting plan with the top-ranked proposal" and made the award at
   the conclusion of that negotiation.[3] Protest at 2. SEDL asserts that as
   the offeror with the highest-ranked proposal prior to evaluation of the
   small business subcontracting plan, it was prejudiced by the agency's
   failure to hold further negotiations about its plan because that failure
   prevented SEDL from reaching the small business contracting figure of 23
   percent necessary to retain its position as the top-ranked proposal.

   We find the protester's interpretation of the RFP is unreasonable. To be
   reasonable, an interpretation of the solicitation must be consistent with
   the solicitation when read as a whole and in a reasonable manner. M & M
   Ret. Enters., LLC, B-297282, Dec. 15, 2005, 2005 CPD para. 224 at 3. Here,
   the RFP clearly indicates that at the time of award decision (or time of
   award) the agency would evaluate the small business subcontracting plans
   in the offerors' final proposals as part of the total evaluation and would
   then select an awardee based on this evaluation. This is unambiguously
   indicated by the final sentence in the penultimate paragraph of Amendment
   No. 4 (quoted above), which was restated in amendment No. 5 as follows,
   "These points [assigned for the small business subcontracting plan
   subfactor] will be added to a technical score to arrive at a total
   evaluated score for purposes of award decision." The final paragraph in
   amendment No. 4 (quoted above), which was restated in amendment No. 5,
   creates some confusion, given that it suggests that the evaluation points
   for this subfactor would only be added "by time of award." However, that
   final paragraph only indicated that the subcontracting plan would not be
   considered in establishing the competitive range, which in this case was
   already established at the time amendment No. 5 was issued. Consistent
   with that final paragraph, the agency then again provided SEDL with the
   opportunity to amend its small business subcontracting plan to maximize
   its possible points under this subfactor.

   SEDL's actions during the procurement demonstrate that it understood, or
   in any event should have understood, the RFP in this respect. The record
   shows that SEDL knew that the agency permitted and expected changes in its
   subcontracting plan between the submission of initial and final proposals.
   In fact, SEDL's interim revised proposal contained changes to its
   subcontracting plan, and amendment No. 5 caused SEDL to consider making
   more changes. See AR, Tab 42, E-mails to/from SEDL, at 17.

   Moreover, the concerns SEDL expressed to the agency about amendment No. 5
   reveal that SEDL knew the subcontracting plan would be evaluated to
   determine which offeror within the competitive range received the award.
   As indicated, SEDL complained to the agency because the amendment's
   evaluation scheme for the subcontracting plan assertedly gave small
   businesses an unfair advantage over SEDL. SEDL's expressed concerns about
   being unable to offer a competitive small business subcontracting plan
   vis-`a-vis a small business is essentially an acknowledgment that the
   agency would evaluate the small business subcontracting plans of all final
   proposals before making an award decision.

   SEDL also challenges Edvance's past performance rating based on the past
   performance rating of Edvance's predecessor company and key personnel,
   because the predecessor company "became a defunct company soon after the
   creation of Edvance Research" and both companies are apparently being
   pursued for "financial and management issues." Protest at 2. This protest
   ground is untimely raised under our Bid Protest Regulations. SEDL learned
   about Edvance's past performance evaluation at its debriefing and,
   presumably, knew about Edvance's financial and management issues at that
   time but did not raise this allegation in its agency-level protest. Thus,
   in order to be timely, SEDL was required to assert this protest ground
   within 10 days of when the basis for protest was known, and SEDL's failure
   to raise this protest ground within 10 days of the debriefing in its
   agency-level protest renders untimely the subsequent raising of this
   protest ground in its protest to our Office.[4] 4 C.F.R. sect. 21.2(a)(2)
   (2006); Foundation Eng'g Scis., Inc., B-292834, B-292834.2, Dec. 12, 2003,
   2003 CPD para. 229 at 3 n.2.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] While the agency also maintains that it encouraged SEDL to increase
   its proposal's competitiveness by changing its small business
   subcontracting plan, AR at 7, the protester denies receiving any such
   encouragement. Protester's Comments at 1. We need not resolve this
   dispute.

   [2] Amendment No. 2 to the RFP included a price range for the total value
   of the contract based on projected Congressional appropriations. The
   agency felt that the offerors' initial price proposals did not adequately
   consider this price range and, in the first round of negotiation
   questions, directed their attention to it. Consequently, in their interim
   revised proposals, both offerors proposed the same price within this
   range, which was also identical to the independent government cost
   estimate. AR, Tab 38, Negotiation Memorandum, at 22.

   [3] SEDL maintains that the agency confirmed this interpretation in the
   December 12 conference call. Nothing in the agency record substantiates
   SEDL's recollection. To the extent SEDL's allegation relies on advice
   given during the conference call, we note that oral advice from an agency
   that is inconsistent with the unambiguous terms of the solicitation is not
   binding on the government, and an offeror relies on oral advice that is
   inconsistent with solicitation terms at its peril. Delphinus Eng'g, Inc.,
   B-296902, B-296906.2, Sept. 20, 2005, 2006 CPD para. 7 at 5.

   [4] In any case, this allegation is without merit. Information regarding
   predecessor companies and key personnel who have relevant experience
   should be taken into account in the past performance evaluation. FAR sect.
   15.305(a)(2)(iii); Trailboss Enters., Inc., B-297742, Mar. 20, 2006, 2006
   CPD para. 64 at 4. Moreover, upon receiving Edvance's protest, the agency
   investigated the protester's allegation and did not find it valid. AR, Tab
   40, Edvance Past Performance Evaluation Report at 8^th -10^th  unnumbered
   pages.