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.