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