TITLE: B-298349, PAI Corporation, August 18, 2006
BNUMBER: B-298349
DATE: August 18, 2006
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B-298349, PAI Corporation, August 18, 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: PAI Corporation
File: B-298349
Date: August 18, 2006
Susan W. Ebner, Esq., and Ronald S. Perlman, Esq., and John Jacko, Esq.,
Buchanan Ingersoll & Rooney PC, for the protester.
Richard J. McCarthy, Esq., National Aeronautics and Space Administration,
for the agency.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest that agency was biased against the protester is denied
where record contains no evidence of bias.
2. Protest that agency unreasonably evaluated protester's proposal is
denied where record demonstrates that evaluation was reasonable and in
accordance with stated evaluation criteria.
3. Protest that agency failed to hold meaningful discussions with
protester regarding significant weaknesses or deficiencies in protester's
proposal is denied where items protester asserts should have been
discussed either were discussed adequately, or were not significant
weaknesses or deficiencies, and therefore were not required to be
discussed.
DECISION
PAI Corporation protests the award of a contract to Consolidated Safety
Services, Inc. (CSS) under request for proposals (RFP) No. NNA04055727R,
issued by the National Aeronautics and Space Administration (NASA) for
occupational safety, industrial hygiene, and medical services (OSIHM) at
Ames Research Center. PAI asserts that agency contracting officials were
biased against PAI, and that the agency unreasonably evaluated its
proposal.
We deny the protest.
The solicitation, issued on December 17, 2004, provided for award on a
"best value" basis, with evaluation factors for mission suitability
(comprised of three subfactors, in descending order of importance:
understanding the requirement; management approach, organizational
structure, corporate or company resources, and key personnel; and safety
and health plan), past performance, and cost. Past performance and cost
were of equal weight and were each weighted slightly less than the mission
suitability factor.
Three offerors--CSS, PAI, and Integrated Science Solutions, Inc.
(ISSi)--submitted proposals. Following the evaluation of initial
proposals, NASA placed the three offerors' proposals in the competitive
range, held discussions, and solicited, received and evaluated final
proposal revisions (FPR). In the final evaluation, CSS's, ISSi's, and
PAI's proposals received 968, 904, and 849 (out of 1,000 available)
points, respectively, for mission suitability. With respect to past
performance, CSS and ISSi were rated excellent, and PAI was rated very
good. CSS's proposed cost was $33.6 million, compared to PAI's $32.9
million and ISSi's $31.2 million. Based on these results, the agency
determined that CSS's proposal represented the best value, and made award
to that firm. PAI protests the award decision on several bases.
BIAS
PAI explains that it was the incumbent contractor for the OSIHM services
under a combined OSIHM and Environmental Services (ES) contract. ISSi was
a subcontractor to PAI, and the president of ISSi was the project manager.
In February 2002, PAI fired the project manager because PAI determined
that she was violating a conflict of interest agreement she had signed
with PAI. PAI asserts that the contracting officer's technical
representative (COTR) on that contract was a friend of the project manager
and was angry at PAI for firing her. PAI maintains that this animus
translated into bias against PAI under the current procurement. According
to PAI, evidence of this bias includes the COTR's refusal to approve two
substitute project managers PAI proffered to replace the fired individual
(under the prior contract). Instead, the agency approved a third
substitute, who performed poorly and left the company within 6 months.
Thereafter, NASA approved one of the initially rejected substitutes.
In order for a protester to succeed in a claim of bias on the part of
contracting officials, the record must establish that the officials
intended to harm the protester; government officials are presumed to act
in good faith, and our Office will not attribute unfair or prejudicial
motives to them on the basis of inference or supposition. AllWorld
Language Consultants, Inc., B-291409.3, Jan. 28, 2003, 2003 CPD para. 31
at 2. Moreover, in addition to producing credible evidence of bias, a
protester must show that any bias translated into action that unfairly
affected the protester's competitive position. Id.
There is no evidence of bias here. Rather, PAI merely recites agency
actions in connection with the prior contract and concludes that the
COTR's and other officials' actions must have been motivated by a desire
to deny PAI the award here. There is no basis for reaching this
conclusion. The contracting officer and COTR both deny that they were or
are biased against PAI or took any purposeful action to deny PAI the
award. Declaration of Contracting Officer at 3; Declaration of COTR at 1,
2. The COTR specifically denies that she had any relationship, other than
a professional relationship, with the fired program manager, and explains
that she was upset when PAI fired the program manager solely due to her
concern with the continued efficient running of the program. Declaration
of COTR at 2. NASA concedes that agency officials should not have been
actively involved in selecting the replacement project manager, but echoes
the COTR's explanation that her involvement reflected her concern for the
program. NASA Response to Agency-Level Protest at 12. PAI has not shown
that the COTR had other than a work relationship with the fired program
manager, that the COTR harbored animus toward PAI, or that any bias
(assuming that it did exist) translated into unreasonable or otherwise
improper action to PAI's disadvantage during the current procurement.[1]
EVALUATION
PAI challenges the evaluation of its proposal on numerous grounds. In
reviewing a protest against a procuring agency's proposal evaluation, our
role is limited to ensuring that the evaluation was reasonable and
consistent with the terms of the solicitation and applicable procurement
statutes and regulations. National Toxicology Labs., Inc., B-281074.2,
Jan. 11, 1999, 99-1 CPD para. 5 at 3. We have reviewed the record and find
PAI's arguments to be without merit. We discuss several of PAI's principal
arguments below.[2]
Understanding the Requirement
Much of the protest is based on PAI's view that the agency applied
different standards in evaluating its proposal than it applied in
evaluating the two other offerors' proposals, both of which are ranked
higher than PAI's.[3] PAI complains, for example, that, under the
understanding the requirement subfactor, CSS's proposal was assigned two
significant strengths--one for hygiene, safety, health unit emergency
response, and computer systems supporting technical requirements, and a
second for thorough understanding of federal and state regulatory
framework and proposed effective system to ensure timely identification
and communication of new requirements to the government ensuring on-time
regulatory submittals. In contrast, PAI complains, its proposal was
assigned only one significant strength for a thorough understanding of all
of the technical requirements and the federal and state regulatory
framework. PAI asserts that equal treatment dictated that this one
strength be broken into two individual strengths.
NASA responds that the proposals were evaluated differently because CSS's
two strengths reflected a finding of both a thorough understanding of the
requirements and proposed mechanisms to ensure timely identification of
new requirements, while PAI's one strength was based on a single finding
of an understanding of the requirements. Based on this explanation, the
evaluation in this area appears reasonable; PAI has not shown otherwise.
Management Approach
PAI complains that, under the management approach subfactor, its proposal
was assigned a significant strength for offering nine key personnel that
exceeded the solicitation requirements, while ISSi's received a
significant strength for offering three key personnel that exceeded the
solicitation's statement of requirements (SOR). PAI asserts that its
greater number of personnel exceeding the requirements warranted assigning
its proposal greater credit in this area than ISSi's. NASA responds that,
in evaluating the proposals, it did not compare proposals to each other
but, rather, considered only how each proposal compared to the SOR; it
concluded that, since both proposals listed key personnel that exceeded
the SOR, each should be assigned a strength. We find nothing improper in
the agency's evaluation approach. There is no basis for precluding the
agency from assigning maximum evaluation credit to a proposal that exceeds
the solicitation requirements solely on the basis that another proposal
may exceed the requirements to a greater extent, absent an evaluation
criterion to that effect. Since both proposals exceeded the terms of the
RFP, the agency reasonably could assign them the same rating.
Integrated Team Approach
PAI complains that its proposal should have been assigned a significant
strength for proposing an integrated team approach. In this regard, PAI's
initial proposal offered MACTEC and El Camino as teaming partners, and was
assigned a significant strength for offering an integrated team approach
with its major subcontractors. When, during discussions, the agency
expressed concern about MACTEC's past performance, PAI removed MACTEC as a
teaming partner and instead proposed the firm as a bench resource from
which services would be ordered, if needed, using a blanket purchase
agreement. NASA removed the significant strength from PAI's evaluation in
this area, finding that this arrangement would not be as beneficial to the
government because MACTEC would not share in the award fee pool and thus
could be less committed to being available to perform.
PAI asserts that removal of the strength was not warranted since, whether
MACTEC is a teaming partner or a subcontractor, MACTEC specialists can be
deployed at prearranged prices as they are needed. PAI further asserts
that the agency incorrectly found that MACTEC would not participate in the
award fee pool--in fact, MACTEC would be a 10 percent partner in the
pool--and ignored the fact that PAI still has a teaming agreement with El
Camino hospital.
This argument is without merit. In its FPR, PAI's technical proposal
removed MACTEC as a teaming partner, and the cost section of PAI's FPR
stated only that teaming partners would share in the award fee pool, with
no mention of other subcontractors sharing in the pool. Final Proposal
Revision at 1, 11, S-1, S-2. Given the language of PAI's proposal, NASA
reasonably concluded that MACTEC was not proposed to share in the award
fee pool. The agency could reasonably conclude from this that MACTEC might
not be as committed to the contract, and that PAI might need to find a
replacement during performance. While PAI's teaming arrangement with El
Camino remained, we see nothing unreasonable in the agency's deciding that
PAI's less favorable approach following discussions (i.e., the elimination
of one of its originally proposed teaming partners) did not warrant a
significant strength.
Management Approach/Key Personnel
PAI challenges the agency's assigning its proposal a significant weakness
under the management approach/key personnel factor based on the finding
that its offered industrial hygienist/technical lead person did not meet
the experience requirements listed in the SOR. In this regard, the
solicitation required technical leaders to have, among other things, a
minimum of 10 years of experience in the discipline of their functional
area. SOR at 44-45. During the initial evaluation, NASA determined that
PAI's proposed industrial hygienist/technical lead did not meet this
requirement, and brought this matter to PAI's attention during
discussions. In response, PAI provided information regarding the position,
but NASA ultimately found that the information presented showed that the
proposed individual had only 7.5 years of relevant experience. More
specifically, NASA found that positions held by the individual under three
prior contracts--two as an environmental scientist and one as a state air
quality inspector--listed to demonstrate experience involved professional
environmental experience, rather than the required experience in the field
of industrial hygiene.
The evaluation in this area was reasonable. First, with respect to the
environmental scientist positions, PAI listed the individual's duties as
including, among other things, solid waste management and yard waste
composting. PAI Response to Discussion Questions at 8. PAI asserts that
this experience should have been deemed relevant because the solicitation
lists "[m]anaging, packaging, transporting and disposing of radioactive
waste and `mixed waste streams'" as part of the industrial hygiene
function. PAI Supp. Response, July 20, 2006, at 10. The protester's
characterization of the solicitation is incorrect. Our review of the SOR
shows that the quoted waste management function is not listed as a
function of the industrial hygienist; rather, it is listed in a different
section of the SOR, as a matter related to radiation protection to be
performed by a certified health physicist. SOR para. 2.2.2.1. Thus, the
agency reasonably concluded that these two prior positions did not
demonstrate relevant experience for the industrial hygienist/technical
lead.
PAI listed the responsibilities for the individual's air quality inspector
position as: review of air pollution permits, inspection of air pollutant
sources and asbestos abatement projects, and technical management of
NESHAP compliance. PAI Response to Discussion Questions at 8. NASA states
that it did not regard this position as relevant experience because,
whereas an air quality inspector inspects pollution sources for compliance
with permit conditions and with environmental regulations--that is, from
an environmental standpoint--an industrial hygienist working for a state
air quality control department typically would be engaged in activities
such as monitoring indoor air quality for the department's workers, or
would act as a toxicologist, conducting human health risk assessments to
determine the impact of specific air pollution sources on community
health. Supp. Declaration of COTR, July 13, 2006, at 1. We find no basis
for questioning this distinction.
We also note that the SOR includes tasks that concern indoor air
quality--e.g., the contract calls for program development, implementation,
coordination and training for programs, including indoor air quality, SOR
para. 2.2.1.1, and also states that the industrial hygiene group must be
appropriate for managing key NASA facilities programs, such as indoor air
quality. SOR para. 6.4.1, at 45. PAI's proposal did not state that the
proposed individual's experience as an air quality inspector dealt with
indoor air quality. PAI asserts that the nature of the experience as
concerning indoor versus outdoor air quality does not affect its
relevance, but we see no reason why the agency could not make this
distinction given the specific solicitation references.
Past Performance
PAI argues that it unreasonably was assigned a weakness under the past
performance factor for having a relatively high turnover of key personnel.
PAI maintains that this downgrading was unfair, since NASA is partially
responsible for past turnover due to its involvement in replacing the
fired program manager, and since the project manager, who was fired for
violating a conflict of interest agreement, also contributed to the
turnover issue. The evaluation in this area was reasonable. First, the
record shows that the weakness assigned reflected not only the turnover in
project managers, but also turnover in business managers and other non-key
personnel. Agency Report at 17. In any case, regardless of any agency
involvement in replacing the fired program manager, there was nothing
unreasonable in the agency's holding PAI responsible for the need to
replace its employee under the contract.[4]
PAI complains that it improperly was treated differently from CSS, because
it was assigned a weakness for employee retention, while CSS, with a
reported turnover rate of 18 and 19 percent (for professional and medical
personnel, respectively), was not assigned a weakness. As noted above,
however, PAI's assigned weakness was based on turnover of key personnel as
well as high turnover of other personnel. In contrast, CSS was found to
have a very low turnover in key personnel and 18 and 19 percent turnover
of other personnel. We find nothing unreasonable in NASA's view--and
resulting assessment of a minor weakness against only PAI--that PAI's high
turnover in key personnel could be more disruptive to contract performance
than turnover of non-key personnel. Agency Response, July 25, 2006, at 2.
DISCUSSIONS
PAI argues that the agency failed to hold adequate discussions with it in
a number of areas where its proposal was assigned significant weaknesses.
For example, PAI asserts that NASA should have advised PAI that it had
concerns about the responses of PAI's proposed industrial hygienist to a
pop quiz given during the PAI's oral presentation, and should have told
PAI that it did not have to offer as many key personnel who exceeded the
SOR in order to receive a high rating in that area. In this latter regard,
PAI states that it would have been able to offer personnel with less
experience at a lower cost.
Discussions, when conducted, must be meaningful; that is, discussions may
not mislead offerors and must identify deficiencies and significant
weaknesses in each offeror's proposal that could reasonably be addressed
in a manner to materially enhance the offeror's potential for receiving
award. Lockheed Martin Corp., B-293679 et al., May 27, 2004, 2004 CPD
para. 115 at 7. There is no requirement, however, that discussions be all
encompassing or extremely specific in describing the extent of the
agency's concerns; agencies need only lead offerors into the areas of
their proposals that require amplification. Professional Performance Dev.
Group, Inc., B-279561.2 et al., July 6, 1998, 99-2 CPD para. 29 at 5.
The discussions here were adequate. First, of the several items PAI
identifies as significant weaknesses or deficiencies, only one, the
qualifications of the industrial hygienist, was identified by the agency
as a significant weakness in PAI's proposal. NASA did not find PAI's key
personnel to be a weakness or deficiency, and did not consider PAI's price
unreasonable, and therefore was not required to raise this with PAI during
discussions. With respect to the industrial hygienist, as discussed above,
NASA specifically advised PAI that it had concerns about the proposed
individual's qualifications. NASA was not required to specify that it was
not satisfied with her response to the pop quiz.[5]
The protest is denied.
Gary L. Kepplinger
General Counsel
------------------------
[1] PAI also maintains that bias is demonstrated by NASA's decision to
separate the OSHIM and ES contracts into two contracts, and the fact that
a representative of the contracting officer replied affirmatively to a
vendor who inquired whether NASA contemplated changing contractors.
However, an agency's separating a requirement into two separate contracts,
without evidence of any improper motivation, does not demonstrate bias,
nor does an agency remark that it foresees a change in contractors. In any
case, it remains that PAI has not shown how any evidence of bias
translated into action that unfairly affected its competitive position.
[2] Many of PAI's arguments are untimely. For example, PAI asserts that
its proposal improperly was assigned a weakness for procurement and
storage controls under the safety and health plan subfactor, that it was
not credited with a number of accomplishments under the past performance
factor, that its employee turnover was improperly criticized as high. A
protest issue that does not involve a solicitation impropriety must be
raised within 10 days after the protester knows or should know the basis
of protest. 4 C.F.R. 21.2(a)(2) (2006), Ti Hu, Inc., B-284360, Mar. 31,
2000, 2000 CPD para. 62 at 3. Here, during its debriefing, PAI was given
the evaluation documents for its own proposal, as well as the source
selection decision document explaining the award decision and listing the
evaluated weaknesses and strengths for each proposal. In its comments on
the agency report, PAI raised certain evaluation arguments (including
those listed above) for the first time. Because these arguments were based
on information disclosed at the debriefing, they are untimely. Similarly,
PAI's protest that CSS medical director was not certified in advanced
cardiac life support is untimely because the issue was evident from the
agency report, but PAI did not raise it until more than 10 days later in
supplemental comments.
[3]In some instances PAI challenges the initial evaluation; for example,
it notes that the agency initially questioned ISSi's and CSS's experience.
However, the record shows that the agency resolved the experience issue
with the offerors during discussions. Where concerns raised during an
initial evaluation have been resolved by the final evaluation, the initial
evaluation generally is immaterial. See American Indian Sci. and Eng'g
Soc'y, B-232217, Dec. 12, 1988. Similarly, we generally will not address
evaluation challenges based on comments of individual evaluators, rather
than the consensus evaluation, since the consensus evaluation is the basis
for the award decision. Instrument Control Serv., Inc., B-285776, Sept. 6,
2000, 2000 CPD para. 186 at 3 n.6.
[4] PAI complains that the agency unfairly did not penalize ISSi in the
evaluation, even though its president was the program manager responsible
for violating the conflict of interest agreement that led to her
dismissal. However, ISSi did not have a prior contract with a high
turnover rate, so NASA had no basis for assigning ISSi a weakness for high
turnover.
[5] PAI argues that NASA also failed to address with CSS all significant
weaknesses found in its proposal. We fail to see how any error in the
agency's conduct in this regard could reasonably be viewed as prejudicial
to PAI.