TITLE: B-298282; B-298282.2, Intercon Associates, Inc., August 10, 2006
BNUMBER: B-298282; B-298282.2
DATE: August 10, 2006
****************************************************************
B-298282; B-298282.2, Intercon Associates, Inc., August 10, 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: Intercon Associates, Inc.

   File: B-298282; B-298282.2

   Date: August 10, 2006

   Patrick K. O'Keefe, Esq., and Marianna Lvovsky, Esq., Sidley Austin LLP,
   for the protester.

   Richard L. Moorhouse, Esq., David T. Hickey, Esq., and Andrew J. Belofsky,
   Esq., Greenberg Traurig, LLP, for Information Analysis, Inc., an
   intervenor.

   John E. Cornell, Esq., General Services Administration, for the agency.

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

   DIGEST

   Protest of agency's evaluation of proposals is sustained where record
   shows that agency, in evaluating protester's proposal and making its
   source selection decision, relied upon numerous unreasonable or
   unsupported evaluated weaknesses regarding the protester's proposal.

   DECISION

   Intercon Associates, Inc. protests the General Services Administration's
   (GSA) award of a contract to Information Analysis, Inc. (IAI), under
   request for proposals (RFP) No. GS-00V-06PDC0001, for an automated
   electronic forms system software package, along with software maintenance
   and support services. Intercon asserts that the agency misevaluated
   proposals and made an unreasonable source selection decision.

   We sustain the protest.

   BACKGROUND

   The RFP contemplated the award of a fixed-price,
   indefinite-delivery/indefinite-quantity contract for a base year with four
   1-year options, to provide the agency with a comprehensive electronic
   forms system to replace and upgrade its existing electronic forms
   capability. The contemplated system is required to provide full life-cycle
   services, from the creation of an electronic form to its entry into GSA's
   forms system; include all associated software necessary to allow forms
   users to fill out the forms, electronically "sign" the forms, and transmit
   them back to the government; and allow the government to process the
   information entered in completed forms. Statement of Work (SOW) at 2. For
   other than the incumbent contractor (Intercon), the proposed system also
   is required to convert GSA's existing electronic forms data base from its
   current format to the offeror's proposed format.

   Award was to be made on a "best value" basis considering price and the
   following non-price factors: technical approach, organizational experience
   and past performance, and key personnel. Technical approach was more
   important than the other two technical factors, which were equal in
   importance. RFP at 11-13. The technical factors were more important than
   price. RFP at 14.

   The agency received 11 proposals in response to the solicitation and,
   after conducting an initial evaluation, established a competitive range
   that included 8 of the proposals. The eight offerors in the competitive
   range were asked to conduct an operational demonstration of their
   respective products. After the operational demonstrations were conducted,
   the agency evaluated the proposals as follows:

+-------------------------------------------------------------------------------------------------+
|Offeror  |   IAI    | Intercon |Offeror A |Offeror B |Offeror C |Offeror D |Offeror E |Offeror F |
|---------+----------+----------+----------+----------+----------+----------+----------+----------|
|Combined |  91.27   |[deleted] |[deleted] |[deleted] |[deleted] |[deleted] |[deleted] |[deleted] |
|Technical|          |          |          |          |          |          |          |          |
|Score[1] |          |          |          |          |          |          |          |          |
|---------+----------+----------+----------+----------+----------+----------+----------+----------|
|Total    |$2,380,416|$[deleted]|$[deleted]|$[deleted]|$[deleted]|$[deleted]|$[deleted]|$[deleted]|
|Price    |          |          |          |          |          |          |          |          |
+-------------------------------------------------------------------------------------------------+

   Agency Report, exh. 112, at 2. On the basis of these evaluation results,
   the agency made award to IAI, finding that its proposal represented the
   best value to the government, considering price and the non-price factors.

   OVERVIEW

   Intercon protests virtually every evaluated disadvantage relating to its
   proposal, maintaining that the agency's findings are either unsupported,
   otherwise erroneous, or inconsistent with the terms of the solicitation.

   Our Office does not reevaluate proposals; rather, we examine the record to
   determine whether the agency's evaluation judgments and conclusions were
   reasonable and consistent with the terms of the RFP and applicable
   procurement statutes and regulations. Century Envtl. Hygiene, Inc.,
   B-279378, June 5, 1998, 98-1 CPD para. 164 at 4. In order for us to review
   the agency's evaluation and source selection, the agency must have
   adequate documentation to support its decision. Id.

   We have reviewed the record here and conclude that the evaluation is not
   adequately supported. We note at the outset that the evaluation record
   here is brief, comprised only of the initial evaluation scoring sheets
   prepared by the individual evaluators (for example, the record does not
   include the consensus source selection evaluation report contemplated by
   the source selection plan, AR, exh. 103, at 8); a brief summary of
   advantages and disadvantages observed during the operational
   demonstrations; and a brief source selection document. (In this regard,
   the advantages and disadvantages observed during the operational
   demonstration are identical to the advantages and disadvantages included
   in the source selection document.) We find that the evaluation judgments
   are, in many instances, either factually incorrect, internally
   contradictory, or so cryptic that we are unable to discern either the
   basis for the evaluators' concerns or how their concerns related to the
   solicitation's evaluation criteria. We discuss our principal findings
   below.

   TECHNICAL APPROACH

   Intercon challenges all six of the evaluated disadvantages noted in the
   source selection decision regarding its proposal. Our review confirms that
   five of the six evaluated disadvantages are unreasonable or otherwise
   unsupported.

   Forms Creation Tool

   In its source selection decision, GSA criticized Intercon's proposal for
   not offering a "true" forms creation tool. AR, exh. 112, at 4. In its
   agency report, GSA elaborates on this observation, explaining that
   Intercon's technical approach requires the production of a paper form that
   is scanned to create an electronic image of the form, which is then
   overlayed with fields into which data may be entered. AR at 6-9. The
   agency maintains that Intercon's proposed forms creation tool, [deleted],
   while suitable for creating a paper form that is then scanned to create
   the electronic form, is not the "tool of choice" for creating electronic
   forms. Id.

   Intercon challenges the agency's conclusion, asserting that its technical
   approach in fact does not require the creation of a paper form that is
   then scanned. The protester asserts, with references to its proposal, that
   [deleted], in conjunction with [deleted] other modules of the proposed
   Intercon solution [deleted], function together to create true electronic
   forms. Initial Protest at 13-14; Supp. Protest at 15-17; Comments, June
   19, 2006, at 4; Supp. Comments, July 11, 2006, at 13; Intercon Technical
   Proposal at 1, 10-11. Intercon also asserts that, in any case, its
   proposed technical solution does not require use of [deleted], but instead
   can use any file type created by any Windows-based software to create an
   electronic form. Id.

   We find GSA's determination that Intercon's technical approach requires
   the creation of paper forms, and that Intercon's forms creation tool thus
   does not create a true electronic form, is not supported by the record.
   Intercon's technical proposal specifically described a forms creation
   process which involves the creation of a new electronic form image using
   [deleted]. Intercon Proposal at 10-11. Moreover, Intercon's proposal
   specifically distinguished this process from another, alternative, process
   that does involve the use of a paper form. Id. Thus, our review of the
   Intercon proposal confirms the protester's assertion that its proposed
   forms creation approach does not require the use of a paper form as a
   starting point for the forms creation process. Under these circumstances,
   it is not apparent on what basis the agency concluded that the forms
   creation tool proposed by Intercon was not a "true" forms creation tool,
   or that Intercon's proposed forms creation tool is not the "tool of
   choice" for creating electronic forms. (For that matter, the record is
   devoid of any explanation regarding why the forms creation tool offered by
   the protester is less advantageous than the forms creation tool offered by
   the awardee.) We therefore find this aspect of the agency's evaluation to
   be unreasonable.[2]

   File Size

   The source selection decision identified as a further disadvantage of
   Intercon's proposed technical approach that the file size of its
   electronic forms is larger than the file size of the electronic forms
   created using other formats. The protester maintains that the agency is
   factually incorrect, and that in fact, the file size of Intercon's
   electronic forms is actually smaller than the file size of the forms
   offered by IAI. (IAI offered a product developed by Adobe Systems, Inc.,
   using portable document format (PDF) files.) In support of its position,
   the protester points to the agency's current forms library, which in some
   cases includes both the protester's format of a given form (known as the
   Accessible FormNet format) and a PDF version of the same form; the
   protester asserts that a comparison of the two formats shows that files in
   its proposed file format are smaller than the corresponding PDF files.
   (For illustrative purposes, the protester references, Standard Form (SF)
   278 and Office of Personnel Management (OPM) Form 71, the two forms used
   by Intercon in its operational demonstration. Supp. Protest, exh. C.) The
   protester maintains that file size thus cannot serve as a reasonable basis
   to downgrade its proposal.

   The record supports Intercon's position. The Accessible FormNet version of
   SF 278 is 407.6 kilobytes (kb), while the PDF version of the form is
   1799.3 kb. Similarly, the Accessible FormNet version of OPM 71 is 75.8 kb,
   while the PDF version of the form is 186.2 kb. Supp. Protest, exh. C. (We
   note as well that, notwithstanding the above file size criticism in the
   source selection decision, two of the three technical evaluators noted as
   an advantage of the Intercon proposal that it offered a "small file
   footprint." AR, exhs. 105, at 5, 106, at 5.) The agency does not rebut
   this aspect of the protest. We conclude that this criticism of the
   protester's proposal was unreasonable.

   Wizard Function

   The protester's product offered three possible methods for end users to
   enter data into an electronic form. First, the user can type information
   directly into the fields of the form as it appears on the screen. Second,
   the user can use what the protester refers to as its [deleted] function,
   which is designed to enable visually impaired users to fill out forms
   through the use of verbal prompts and responses; the protester's software
   works in conjunction with verbal prompt/response software that is employed
   by visually impaired users. Finally, using the "wizard function," the user
   sees a split screen, a portion of which displays the form being filled out
   and a portion of which displays a written prompt/response text window; the
   user types responses to questions and the data automatically appears in
   the appropriate field of the form. Intercon Proposal at 1-2, 12, 19-20.

   The agency's source selection decision criticized Intercon's proposed
   wizard function on the basis that "[t]he wizard looks weird when the form
   is above it." AR, exh. 112, at 4. Intercon asserts that this negative
   observation is unexplained in the record and bears no relationship to the
   requirements of the RFP and the evaluation criteria.

   We agree with the protester. Agencies are required to evaluate proposals
   based solely on the factors identified in the solicitation, and must
   adequately document the reasons for their evaluation conclusions. Computer
   Info. Specialist, B-293049, B-293049.2, Jan. 23, 2004, 2004 CPD para. 1 at
   3-4. There is nothing in the RFP's evaluation scheme that calls for an
   evaluation of, or relates to, the on-screen appearance of an offeror's
   product. Moreover, it is not clear what the evaluators meant in commenting
   that the protester's wizard function looked "weird." There is nothing in
   the evaluation or protest record that even attempts to define this term.
   Furthermore, we note that the evaluators made favorable observations about
   Intercon's wizard function elsewhere in the evaluation materials. Indeed,
   immediately above the criticism noted above, the source selection decision
   itself notes that Intercon's product offered a "nice wizard function." AR,
   exh. 112, at 4; see also AR, exhs. 104, at 5, 105, at 5, 106, at 5. We
   therefore conclude that this criticism of Intercon's proposed wizard
   function as looking "weird" did not serve as a reasonable basis for
   downgrading the protester's proposal.

   Filler Application

   The source selection decision criticized Intercon's proposed system on the
   basis that Intercon's separate form filler application is required in
   order for an end user to use Intercon's proposed electronic forms product.
   Elsewhere, the evaluators criticized Intercon's product because its form
   filler application must be downloaded to a user's computer, AR, exh. 104,
   at 5, and is not available to most government agencies. AR, exhs. 105, at
   5, 106, at 5. We find the evaluation in this regard to be unreasonable.
   The protester notes, and the agency does not dispute, that all of the
   offered electronic forms products require some type of form filling
   application to be downloaded in order to use the product; for example, an
   Adobe Reader and various reader extensions must be downloaded in order to
   use the awardee's product. AR, exh. 102, at 20. Indeed, the RFP
   specifically contemplated that end users using a form filler tool might be
   required to download a software product. SOW at 5. Further, as noted by
   the protester, contrary to the agency's criticism that its form filler
   tool is not widely available to most government agencies, it appears that
   Intercon's form filler tool in fact is widely distributed, as demonstrated
   by a list (furnished by the protester) showing that some 37 different
   federal agencies or entities have installed in excess of 77,000 copies of
   its form filler tool. Supp. Protest, exh. B. We therefore conclude that
   this aspect of the agency evaluation was unreasonable.

   External Digital Certificates

   The source selection decision further criticized Intercon's product
   because it requires the use of external digital certificates.[3] Intercon
   maintains that this is not a legitimate basis of criticism for two
   reasons. First, according to the protester, its product allows for
   identification of the user [deleted] to an e-form, or through the use of
   an external digital certificate; thus, external digital certificates are
   not, in fact, required in all cases. Second, according to the protester,
   all electronic forms products must use digital certificates at certain
   security levels, but the solicitation did not specify a preference for
   digital certificates that are issued and managed internally versus those
   that are issued and managed externally, as offered by the protester.[4]

   As an initial matter, we note that the agency has not responded
   substantively to the protester's detailed challenge to this criticism of
   its proposal as requiring the use of external digital certificates. In any
   case, it appears from the record, as well as from publicly available
   materials (such as OMB Letter M04-04 and NIST Special Publication 800-63)
   that the protester is correct in both of its assertions. Its proposal
   clearly indicated that its product provides for use of either [deleted] or
   digital certificates, depending upon the level of authentication required.
   Intercon Proposal at 8-10. Moreover, neither the specifications, nor the
   stated evaluation criteria, indicate a preference for internally issued
   and managed digital certificates as opposed to externally issued and
   managed digital certificates. Additionally, we note that the awardee's
   proposal stated, without elaboration, that its approach meets the
   e-authentication requirements [deleted]. AR, exh. 102, at 20. As indicated
   above, at certain security levels digital certificates are required; there
   is no way to determine from the record what type of digital certificates
   ([deleted]) IAI will use, or whether its proposal differs from the
   protester's in this regard. We conclude that this criticism did not
   provide a reasonable basis for downgrading Intercon's proposal.

   In sum, we find that the agency relied on unreasonable and otherwise
   unsupported criticisms of Intercon's proposed technical approach in
   reaching its source selection decision.

   KEY PERSONNEL

   Although not expressly identified as a discriminator in the agency's
   source selection decision, the record shows that the evaluators assigned
   [deleted] numeric scores[5] to Intercon's proposal under the key personnel
   evaluation criterion; this, in turn, contributed to the firm's [deleted]
   overall numeric score. Intercon challenges these scores, maintaining that
   the narrative materials in the evaluation record for key personnel
   indicate that the agency's concerns in this area were unrelated to the
   evaluation criterion specified in the RFP, and therefore cannot support
   the low scores.

   For purposes of evaluating the offerors' key personnel, the RFP provided
   as follows:

     The offeror's responses contained in this factor shall reflect an
     in-depth and mature understanding of the requirement scope. This will be
     evidenced in the offeror's ability to demonstrate an awareness of the
     managerial challenges, risks, and responsibilities involved in
     performing a contract of this type and scope. Offerors should also note
     that the Government is interested in the stability of the employment of
     key personnel as well as their quality. This factor shall be evaluated
     on the following elements which are of equal importance:

     Recruitment, retention and workforce

     Organizational structure and lines of authority

     Availability and qualifications of the proposed staff, their experience
     in similar projects and their capability to fully and professionally
     accomplish the objectives stated herein

     Ability of proposed staff to develop proposals and plans, including
     goals, justifications, objectives, milestones, and progress charts;
     develop time frame projections and resource requirements; establish
     budgets and coordinate projects to ensure their timely completion

     Ability to communicate both orally and in writing with both technical
     staff and project managers; and

     Consideration of the required knowledge, skills and abilities as
     specified in the RFP.

   RFP at 13-14.

   Based upon our review of the evaluation record in this area (a record
   that, as with other aspects of the evaluation, includes only a minimal
   narrative documenting the evaluation), we find the overall evaluation of
   Intercon's key personnel to be unsupported and to bear little relationship
   to the basis for evaluation set forth in the solicitation.

   One of the evaluators criticized Intercon's proposal on the basis that
   Intercon's key personnel had "[deleted]." AR, exh. 104, at 6. The stated
   evaluation criterion, however, did not expressly provide for consideration
   of [deleted] or [deleted], nor has GSA explained how these considerations
   are reasonably related to the stated evaluation criterion. Indeed, the
   only specific RFP reference to key employee experience indicates that the
   agency is interested in obtaining key personnel who have experience in
   using the offeror's proposed methodologies and tools. RFP at 3. Since all
   of Intercon's proposed key personnel have experience in using the firm's
   proposed methodologies and tools (as noted, Intercon is the incumbent),
   the evaluator's criticism does not appear to be consistent with the
   solicitation.

   The remaining two evaluators observed that Intercon's key personnel have
   "[deleted]." AR, exhs. 105, at 6, and 106, at 6. Again, these observations
   appear to be unrelated either to the stated evaluation criterion, or to
   the indication in the RFP that the agency was interested in key personnel
   that had experience with the methodologies and tools proposed. Indeed,
   these observations arguably could be viewed as advantages to the extent
   that they recognize that Intercon's key personnel are intimately familiar
   with their proposed product and are "[deleted]." (One of these evaluators
   also noted that Intercon's key personnel had "[deletetd]." AR, exh. 105,
   at 6. While a [deleted] could legitimately be a basis under the stated
   criterion for downgrading Intercon's proposal in this area, there is no
   basis to conclude on this record that this criticism, standing alone,
   would serve as a justification for rating the firm's key personnel
   [deleted] overall.)

   We conclude that the agency's assignment of [deleted] scores to Intercon's
   proposal for key personnel was unreasonable.

   BIAS

   Intercon asserts that at least one, and possibly two, of the three
   technical evaluators were biased against it. In support of its assertion,
   the protester directs our attention to the results of the evaluation,
   maintaining that the striking similarity of the narrative materials in the
   evaluation worksheets for two of the evaluators show that they were biased
   against Intercon. In addition, Intercon directs our attention to several
   e-mails prepared by one of the evaluators that it maintains show that he
   was biased against the firm. (Intercon also references comments allegedly
   made at various times by this individual that it maintains show that he is
   biased against Intercon.)

   We have no basis to make a finding of bias on the record before us.
   Government officials are presumed to act in good faith and, where a
   protester contends that contracting officials are motivated by bias or bad
   faith, it must provide convincing proof, since our Office will not
   attribute unfair or prejudicial motives to procurement officials on the
   basis of inference or supposition. WorldWide Language Res., Inc.,
   B-297210, et al., Nov. 28, 2005, 2005 CPD para. 211 at 4.

   Regarding the identity of findings in the narrative materials of the two
   evaluators, there simply is nothing inherently improper in there being
   similarity among the findings of two or more evaluators; this shows little
   more than that these evaluators may have discussed--and agreed upon--their
   evaluation findings. In fact, had the agency prepared the consensus
   evaluation report contemplated by the source selection plan, the findings
   of all three evaluators would effectively have been identical.

   As for the referenced e-mails, there is nothing included in them that
   reflects bias; at most, they suggest that the evaluator's in-house
   information technology personnel (the evaluator is from an agency other
   than GSA) might have concerns over the installation of Intercon's form
   filler application in the agency's computing environment. This does not
   rise to the level of convincing proof that this evaluator was biased
   against Intercon. Accordingly, we deny this aspect of Intercon's
   protest.[6]

   CONCLUSION

   As noted, the record shows that the agency's source selection decision was
   based upon numerous criticisms of the protester's proposal which were
   unreasonable or unsupported, and that Intercon's numeric score was lower
   because of these findings. Given these evaluation errors, as well as
   Intercon's significant [deleted], we conclude that the protester was
   prejudiced by the agency's misevaluation of its proposal; that is, in the
   absence of the agency's errors, it appears that Intercon would have had a
   substantial chance of receiving award. McDonald-Bradley, B-270126, Feb. 8,
   1996, 96-1 CPD para. 54 at 3; see Statistica, Inc. v. Christopher, 102
   F.3d 1577, 1581 (Fed. Cir. 1996). We therefore sustain Intercon's protest.

   RECOMMENDATION

   We recommend that the agency reevaluate the proposals and make a new
   source selection decision. In its reevaluation, the agency should
   thoroughly document its evaluation findings and source selection decision,
   consistent with the requirements of Federal Acquisition Regulation
   sect.15.305. If, at the conclusion of the reevaluation, the agency
   determines that a firm other than IAI is in line for award, we further
   recommend that the agency terminate IAI's contract for the convenience of
   the government, and make award to the other offeror, if otherwise proper.
   Finally, we recommend that GSA reimburse Intercon the costs associated
   with filing and pursuing its bid protest, including reasonable attorneys'
   fees. 4 C.F.R. sect. 21.8 (d)(1) (2006). Intercon's certified claim for
   costs, detailing the time spent and the costs incurred, must be submitted
   to the agency within 60 days of receiving our decision. 4 C.F.R. sect.
   21.8 (f)(1).

   The protest is sustained.

   Gary L. Kepplinger

   General Counsel

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

   [1] The record shows that in arriving at these combined final evaluation
   scores, the agency improperly assigned a weight of 10 percent to the key
   personnel factor and 30 percent to the organizational experience and past
   performance factor, rather than weighting them equally as specified in the
   RFP. During the course of the protest, the agency recalculated the scores
   using an equal weight for the two factors; the recalculation resulted in
   only a minimal change to the offerors' combined scores and did not affect
   the ranking of the proposals.

   [2] One of the technical evaluators also criticized Intercon's use of
   [deleted] as its forms creation tool because, according to the evaluator,
   use of the product can be difficult when application updates occur, and
   because the tool was not readily available to users because it would be
   provided to the agency on compact disc. AR, exh. 104, at 5. GSA, however,
   has not explained how Intercon's proposed forms creation tool is less
   advantageous in this regard than the other offerors' tools, which
   presumably also require periodic updates, or how the medium of
   distribution (compact disc) used by Intercon would limit its availability
   to the user community.

   [3] A digital certificate is part of the infrastructure needed to verify
   electronically the identity of an individual submitting information.
   Digital certificates are issued and managed either by the organization
   providing the service (for example, by an offeror such as the protester or
   the awardee), or by a third party such as the government (as in the case
   of GSA's access certificate for e-services (ACES) program) or some
   commercial concerns (several of which are mentioned in the protester's
   proposal).

   [4] For a detailed discussion of the various security levels and the
   requirements relating to each level, see Office of Management and Budget
   (OMB) Letter M04-04 and National Institute of Standards and Technology
   (NIST) Special Publication 800-63. Briefly, there are four levels of
   authentication and, at a minimum, digital certificates are required at
   levels 3 and 4.

   [5] The evaluators assigned scores of [deleted] and [deleted] respectively
   to the Intercon proposal for key personnel. AR exh. 108. The source
   selection plan defined a [deleted] score as any score between [deleted]
   and [deleted] points. AR, exh. 103, attach. 5.

   [6] Intercon challenges other aspects of the evaluation of both its
   proposal and the awardee's. We need not consider these arguments because
   we find that the evaluation errors discussed above are sufficient to call
   into question the reasonableness of the source selection, and because we
   recommend below that the agency thoroughly reevaluate the proposals.