TITLE: B-298421.2; B-298421.3, Metcalf & Eddy Services, Inc., November 29, 2006
BNUMBER: B-298421.2; B-298421.3
DATE: November 29, 2006
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B-298421.2; B-298421.3, Metcalf & Eddy Services, Inc., November 29, 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: Metcalf & Eddy Services, Inc.
File: B-298421.2; B-298421.3
Date: November 29, 2006
Michael R. Charness, Esq., Suzanne D. Reifman, Esq., and Amanda J.
Dietrick, Esq., Vinson & Elkins LLP, for the protester.
Kenneth B. Weckstein, Esq., and Shlomo D. Katz, Esq., Epstein Becker &
Green, PC, for CDM International, Inc., an intervenor.
Warren D. Leishman, Esq., Agency for International Development, for the
agency.
Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest challenging agency's evaluation of protester's presentation is
denied where record shows that evaluation was consistent with terms of
solicitation and instructions provided to competitors.
DECISION
Metcalf and Eddy Services, Inc. (M&E) protests the U.S. Agency for
International Development's (AID) selection of CDM International, Inc. for
cost negotiations under solicitation No. 263-06-017, issued to acquire
engineering services for various small-scale infrastructure projects in
Egypt. M&E maintains that the agency misevaluated the firms' presentations
and failed to provide adequate discussions.
We deny the protest.
The acquisition was conducted under the authority of the Brooks Act, 40
U.S.C. sections 1101-1104 (2002), which, together with the applicable
implementing regulations, Federal Acquisition Regulation (FAR) part 36,
provides for the acquisition of architectural-engineering (A-E) services.
The solicitation called for the submission of expressions of interest and
prequalification information from interested concerns. The agency received
four submissions and invited all four concerns to make oral presentations
supported by written materials. These invitations included a draft
statement of work, a statement of the minimum qualifications of key
personnel, a list of applicable documents and drawings for projects
contemplated for performance under the contract, and a statement of the
evaluation criteria, which were as follows: experience with the type of
services required (20 of 100 available points); organizational structure
and qualification of personnel (20 points); familiarity with the locality
where the projects are situated (20 points); past performance (15 points);
cost effectiveness (approaches to reducing and controlling costs) (10
points); and technical approach and timeline (15 points).
Based on the firms' submissions and oral presentations, the agency
selected M&E for final cost negotiations. CDM challenged the selection
decision in a protest filed with our Office, alleging that the agency
improperly had failed to engage in discussions. In response, the agency
advised our Office that it intended to take corrective action by providing
discussions, and we dismissed the protest as academic (B-298421, July 6,
2006).
By letter dated July 2, the agency advised the four firms that they would
be allotted 3 hours for their presentations--2 hours for making the
presentation and 1 hour for questions from the agency's technical
evaluators. Agency Report (AR), exh. 4, at 2. The firms were further
advised that they were free to make any desired changes to their original
written presentation materials, that the agency would make its selection
decision based on the revised presentations, and that an entirely new
technical evaluation panel would evaluate the revised presentations. Id.
Each firm's letter also included the evaluation scores assigned by the
agency during the original presentations (M&E's score was 92.6 points),
and also narratives that discussed each firm's strengths and areas for
improvement. By follow-up letter dated July 18, the agency further advised
the firms that they should anticipate making any desired changes to their
written presentation materials in response to the discussions during the
oral presentation.
The agency conducted presentations with three firms (one firm declined to
participate further) and accepted written presentation materials from them
at the conclusion of those presentations. The agency then evaluated the
firms as follows:
+------------------------------------------------------------------------+
| | CDM | M&E[1] |Offeror A|
|--------------------------------------------+--------+--------+---------|
| Experience of firm and subcontractors | 20 |19.33333| 18.5 |
|--------------------------------------------+--------+--------+---------|
|Organizational structure & qualifications of|18.66667| 17.2 | 19.1 |
| personnel | | | |
|--------------------------------------------+--------+--------+---------|
| Familiarity with the locality of projects |19.33333| 20 |16.33333 |
|--------------------------------------------+--------+--------+---------|
| Past performance | 15 | 15 | 14.3 |
|--------------------------------------------+--------+--------+---------|
| Cost effectiveness | 10 | 8.9 | 9.2 |
|--------------------------------------------+--------+--------+---------|
| Technical approach and timeline | 15 | 15 | 14.2 |
|--------------------------------------------+--------+--------+---------|
| Total Score | 98 |96.08333|92.16667 |
+------------------------------------------------------------------------+
On the basis of these evaluation results, the agency selected CDM for cost
negotiations as the most highly ranked firm. M&E was advised of the
agency's decision by letter dated August 16; by letter dated August 17,
M&E was provided its point scores, as well as a list of the strengths and
weaknesses found in its presentation.
EVALUATION
M&E protests various aspects of the agency's evaluation of the
presentations. In reviewing an agency's selection of a contractor for A-E
services, our function is not to make our own determination of the
relative merits of the submissions, or to substitute our judgment for that
of the procuring agency by conducting an independent examination. Rather,
our review is limited to examining whether the agency's evaluation and
selection were reasonable and in accordance with the published evaluation
criteria. Pickering Firm Inc., B-277396, Oct. 9, 1997, 97-2 CPD para. 99
at 4. The evaluation and selection here were reasonable.
Consideration of First and Second Presentation
M&E maintains that the agency improperly considered only information
included in its second written and oral presentations, and did not
consider information from their first presentation. According to the
protester, the agency did not advise firms that only the second
presentation would be evaluated for purposes of the agency's source
selection decision.
This argument is without merit. The agency's letters inviting firms to
participate in the second presentation stated as follows:
The revised presentation will be used for the final selection of the
firm for conducting the work as a result of RFP 263-06-017. Firms are
free to add, subtract, or make any other changes to any of the
information presented originally. Please note that we will constitute a
new Evaluation Board, none of whose members will have been at the
original presentations.
AR, exh. 4, at 2. The same letter went on to state that "[t]he following
commentary [a statement of the strengths and areas for improvement] on
M&E's [first] Presentation may be of help in preparing for the final
presentation." Id. at 3. It is clear from this letter that the second
presentation would be the principal source of evaluation information, but
it is also clear from the inclusion of the "commentary" that the
evaluation would be conducted with reference to the identified strengths
and weaknesses from the first presentations. It appears that the
evaluation panel adhered to the terms of the letter; it clearly considered
the second presentation, and also considered at least the extent to which
the second presentation improved on the first. See AR, exh. 1, at 6-8.
There was nothing unreasonable or otherwise improper in the agency's
considering the oral presentation information in this manner.
Oral Presentation
M&E also maintains that the agency improperly failed to consider the
firm's oral presentation at all, and instead based its evaluation solely
on its written presentation materials. In this regard, the protester notes
that, in responding to its protest, the agency refers only to its written
presentation materials to support the reasonableness of its evaluation,
and that some of the evaluators' worksheets are either undated or dated
several days after its presentation. To illustrate its point, the
protester cites the agency's evaluation conclusion that it was "[n]ot
clear who will perform archeological monitoring, no affiliation with
prominent archeologist highlighted." AR, exh. 10, at 5. The protester
states that, in fact, its written materials identified an archeological
firm and a particular prominent archaeological architecture specialist who
would be used to perform, and that it mentioned the firm and the names of
the individuals at the oral presentation. Protester's Comments, Sept. 29,
2006, exh. 1, at 2.
This allegation is without merit. The agency's technical evaluation team
chairman states in an affidavit that the evaluators considered both the
oral and written presentation materials, and there is nothing in the
record establishing otherwise. Agency Motion to Dismiss, Oct. 11, 2006,
exh. 1, at 2. The fact that the evaluators' worksheets memorializing their
observations from the oral presentations were prepared some time after the
presentations--the chairman states that there was a 1 or 2-day delay,
id.--does not establish that the agency failed to consider the oral
presentations.
With regard to the the quality of M&E's archaeological team, the
chairman's affidavit states: "Although M&E's presentation and materials
were on the whole excellent, we felt that they could have been a little
clearer about their . . . archeological expert." Agency Motion to Dismiss,
Oct. 11, 2006, exh. 1 at 2. This representation is consistent with M&E's
written presentation materials; the slide detailing the firm's
archaeological monitoring subcontractor, [deleted], describes the concern
as a [deleted] but makes no mention of the firm's role in performing
archaeological monitoring, Protest, exh. I, and the slide relating to
M&E's use of particular well-known archaeologists states only that the
firm intended to use a "[deleted]," id. at exh. H, with no mention of who
these individuals would be. While the protester claims it provided
specifics during its oral presentation, it is not clear why it did not
incorporate this information into its written materials. In this regard,
the agency's instructions to the firms made clear it anticipated that
firms would make written changes to their final submissions so that they
were consistent with their oral presentations. Those instructions
specifically provided:
It is our intention that in order for the exchange between the
Presenters and the government to be as meaningful as possible, that the
Presenters will be given the opportunity to make adjustments to the
presentation and the materials left behind for the government to conduct
their final evaluation.
* * * * *
In the event that the Presenters wish to make any changes to the
materials left behind for the evaluation, then these changes should be
made simultaneously with-in (or during) the presentation time period of
three hours. With four presenters, it seems that there will be
sufficient resources in the room to make these adjustments, if needed.
The oral presentation and any written presentation, changes or otherwise
must be consistent.
AR, exh. 4, Letter from USAID to M&E, July 18, 2006, at 1-2 (emphasis
added).
In light of M&E's failure to comply with these explicit instructions by
amending its written materials during the oral presentation, M&E ran the
risk that its materials would be viewed as somewhat inconsistent or
confusing, given that its written materials did not include the specific
information M&E maintains it presented orally. Certainly, the agency's
approach to evaluating this aspect of M&E's materials in no way evidences
a general failure by the agency to consider M&E's oral presentation
information. (In any case, M&E's proposal was only nominally downgraded
for this weakness--it received 19.33333 of 20 possible points under the
relevant criterion (experience of the firm and subcontractor)).
Job Descriptions
M&E takes issue with the agency's evaluation conclusion that the firm did
not provide detailed job descriptions for all of its personnel. In this
connection, the record shows that the agency specifically noted this as an
"area for improvement" in its invitation to M&E to participate in the
second presentation. M&E states that it supplemented its presentation
materials in response to this commentary. This argument is without merit.
The record shows that, as the agency found, M&E included information in
its written presentation materials [deleted]. AR, exh. 5, at unnumbered
pages 14-21. The agency therefore reasonably assessed this as a weakness
in M&E's presentation materials.
Principal-In-Charge
M&E asserts that the agency improperly downgraded its presentation for
being unclear as to the role of its principal-in-charge. The agency's
evaluation materials state in this respect: "Role of the
`Principal-in-Charge' not clearly defined in the presentation. Having both
a Principal-in-Charge and Chief of Party redundant." AR, exh. 10, at 5.
M&E states that it was unreasonable to downgrade its presentation for this
reason, since both its first and second presentations included information
showing that the principal-in-charge, [deleted].
The evaluation in this area was reasonable. As noted by the agency, M&E's
presentation materials identified [deleted]. AR, exh. 5, at 14-15. The
agency reasonably could conclude from these multiple designations that the
role of the the principal-in-charge was not clearly defined.
Moreover, an examination of the [deleted]. AR, exh. 5, at 14-15. The
[deleted], AR, exh. 5 at 15-16, issues which would appear to be
encompassed by [deleted].
Design/Engineering Manager
The agency assessed M&E a weakness based on the fact that its
design/engineering manager was [deleted], and its view that it might be
unnecessary to use [deleted] manager given the availabilty of qualified
local design and engineering specialists. M&E takes issue with this
finding, explaining that, during its first oral presentation (as well as
during the firm's initial cost negotiations with the agency after that
presentation) the agency had insisted that M&E [deleted]; in response, it
had agreed with the agency that it would use [deleted] design/engineer
manager.
Given the protester's unrebutted account of its dealings with the agency
on this point, the basis for the agency's concern is not clear. The record
shows, however, that the agency did not deduct any points from M&E's score
for this reason; the evaluation worksheets show that each of the
evaluators assigned M&E the maximum score for the subfactor of maximum use
of well-qualified local personnel (5 points) (under the factor of
organizational structure and qualification of personnel). AR, exh. 9, at
7, 24, 41, 58, 75. Since CDM ultimately was selected on the basis of its
higher score, there is no indication that this agency concern had any
impact on the selection decision. Consequently, M&E was not prejudiced by
any improper evaluation in this area. GS Servs., Ltd. P'ship, B-298102,
B-298102.2, June 14, 2006, 2006 CPD para. 96 at 7-8 (prejudice is an
essential element of every viable protest, and where none is evident, we
will not sustain a protest even if the agency's actions arguably were
improper).
Disparate Treatment
M&E asserts that it was evaluated disparately because the agency deducted
four points from its final score while deducting only two from CDM's,
despite the fact that the weaknesses identified in CDM's presentation
(allegedly) were more serious than those in M&E's presentation. This
argument is without merit. The evaluation reflected both strengths and
weaknesses, and while the agency identified the same number of weaknesses
for both firms, it identified significantly more strengths (12 versus 8)
for CDM than it did for M&E. Thus, the agency reasonably evaluated CDM as
superior and there is no basis to assume--as the protester's argument
necessarily does--that the precise difference in point scores reflected
disparate consideration of the firms' weaknesses rather than the greater
number of strengths assigned CDM.
DISCUSSIONS
M&E asserted in its initial protest submission that the agency failed to
provide M&E with "meaningful discussions" during its oral presentation
because it did not bring identified weaknesses to M&E's attention and
permit the firm to address them. In support of this argument, M&E cited
decisions from our Office concerning the requirement for meaningful
discussions under FAR part 15. The agency responded by asserting that,
because this procurement was governed by the A-E services regulations
under FAR part 36, the discussions requirements under FAR part 15 did not
apply. In response to the agency's position, M&E asserted for the first
time (in its comments on the agency report) that the agency failed to
provide discussions as required under FAR part 36.
Under our Bid Protest Regulations, protests must be filed no later than 10
days after the protester knew or should have known its bases of protest. 4
C.F.R. sect. 21.2(a)(2) (2006). M&E's assertion that it was not afforded
adequate discussions within the meaning of FAR part 36 is based on
information of which it was aware more than 10 days before its comments
were filed. Specifically, as evidenced by M&E's letter of protest, the
firm was well aware that the acquisition was being conducted under the
authority of FAR part 36; thus, to the extent M&E believed it had not been
afforded adequate discussions under FAR part 36, M&E was required to
protest on this basis at least at the time it filed its initial protest.
Because it did not do so, this aspect of the protest is untimely and will
not be considered. [2]
The protest is denied.
Gary L. Kepplinger
General Counsel
------------------------
[1] The total scores for M&E and offeror A, as presented in the agency's
source selection document contain mathematical errors; the sum of M&E's
evaluation factor scores is 95.43333 and the sum of offeror A's evaluation
factor scores is 91.63333. We do not consider this error significant,
since in both cases the total score presented to the source selection
official was higher than the mathematically correct sum; therefore,
neither firm was prejudiced by the agency's calculation error.
[2] Although we do not decide here whether the agency was required to
conduct more extensive discussions, we note that, in contrast to FAR part
15, the Brooks Act and its implementing regulations in FAR part 36 provide
that agencies "shall conduct discussions with at least 3 firms to consider
anticipated concepts and compare alternative methods for furnishing the
services." 40 U.S.C. sect. 1103(c) (2002); FAR sect. 36.602-3(c). In
explaining this requirement, Congress stated the expectation that the
source selection authority:
through discussions with an appropriate number of the firms interested
in the project, will obtain sufficient knowledge as to the varying
architectual and engineering techniques that, together with the
information on file with the agency, will make it possible for him to
make a meaningful ranking.
S. Rep. No. 92-1219 at 8 (1972), reprinted in 1972 U.S.C.C.A.N., 4767,
4774; see also, Mounts Eng'g; Dept. of the Interior--Request for Advance
Decision, B-218489 et al., Aug. 16, 1985, 85-2 CPD para. 181 at 6.