TITLE: B-298941; B-298941.2, ITS Services, Inc., January 10, 2007
BNUMBER: B-298941; B-298941.2
DATE: January 10, 2007
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B-298941; B-298941.2, ITS Services, Inc., January 10, 2007

   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: ITS Services, Inc.

   File: B-298941; B-298941.2

   Date: January 10, 2007

   William L. Walsh, Jr. Esq., J Scott Hommer, Esq., Keir X. Bancroft, Esq.,
   and Peter A. Riesen, Esq., Venable LLP, for the protester.

   Paul B. Oman, Esq., Department of Homeland Security, for the agency.

   Paula A. Williams, Esq., and Glenn G. Wolcott, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest challenging the issuance of a task order to a higher technically
   rated, higher-priced vendor is denied where the solicitation provided that
   technical merit was more important than price and where the agency record
   provides a reasonable basis for the award decision.

   DECISION

   ITS Services, Inc., a subsidiary of Apogen Technologies, Inc.
   (hereinafter, referred to as "Apogen") protests the issuance of a task
   order to Bart and Associates, Inc. (Bart) under request for quotations
   (RFQ) No. HSBP10-06-Q-0724, issued by the Department of Homeland Security,
   Customs and Border Protection (CBP), for technical and engineering
   services to support CBP's Office of Information and Technology (OIT).
   Apogen, which submitted a lower-priced quotation, protests the evaluation
   of quotations and the resulting selection decision.

   We deny the protest.

   BACKGROUND

   The OIT is responsible for the design, development, programming, testing,
   implementation and maintenance of CBP's automated information systems.
   OIT's Program Integration Division provides architecture and engineering
   guidance and services to CBP. The Architecture & Engineering Branch (AEB),
   one of four Program Integration Division branches, provides architecture,
   network and systems engineering, and data management services, in
   collaboration with the program offices, to develop and implement OIT
   products.

   The Integration Services Branch (ISB) is one of several teams in the AEB.
   The ISB is responsible for identifying and evaluating new infrastructure
   and information technology (IT) solutions for application to the CBP
   automated systems, and performs application testing with regard to
   leading-edge innovative technologies that reduce development time and
   maintenance cost of IT to facilitate the execution of the CBP mission. ISB
   manages and maintains the Integration Laboratory (ILab) and the Open
   Systems Laboratory (OSL), which are mock versions of the CBP network
   infrastructure. RFQ, Statement of Work (SOW), at 1 (July 18, 2006). The
   procurement here is to acquire technical and support services for ISB to
   assist in modernizing and/or improving the CBP enterprise architecture,
   and to operate and maintain an engineering environment, that is,
   laboratories and necessary equipment.[1] RFQ, SOW, at 2-3 (July 18, 2006).

   With regard to contract performance, the SOW set forth specific tasks to
   be performed, including:

     Task 1 -- Operate and maintain OSL and ILab.

     Under this task, the contractor shall provide a combination of highly
     skilled technical and administrative personnel that shall operate
     synergistically to operate and maintain the CBP's OSL and ILab.

     Task 2 -- Conduct IT technology research and studies.

     Under this task, the contractor shall provide a combination of highly
     skilled technical and administrative personnel that shall operate
     synergistically to conduct required IT technology research and studies.

   RFQ, SOW, at 3 (July 18, 2006).

   In June 2006, the CBP issued the RFQ to vendors holding General Services
   Administration Federal Supply Schedule (FSS) contracts for IT services.
   The RFQ contemplated issuance of a labor-hour task order for a base-year
   period and two 1-year option periods, and provided that the task order
   would be issued on the basis of the quotation representing the best value
   to the government.

   The solicitation established the following factors to be considered in
   determining best value:

     I. Technical Factors

     A. Technical Capabilities & Management Approach

       1. Understanding of the work, including thoroughness shown in
       understanding the objectives of the SOW and specific tasks, and
       planned execution of the project.

       2. Evidence of specific methods and techniques for completing each
       discrete task, to include such items as quality assurance, and
       customer service.

     B. Organizational Experience

       1. Evidence the organization has current capabilities for assuring
       performance of this requirement. Evidence of supporting subcontractors
       and business partners will be considered.[2]

     II. Past Performance Factor

     A. Past Performance

       1. The organization's specific past performance on prior similar
       efforts specified within the SOW.[3]

     III. Price[4]

   RFQ, Letter from CBP to Prospective Vendors, at 3-4 (June 27, 2006).

   Vendors were informed that the technical and past performance factors,
   when combined, were "significantly more important" than price. Id.

   Apogen and Bart were among 14 vendors that submitted quotations in
   response to the RFQ. A technical evaluation panel (TEP) evaluated
   quotations by identifying strengths and weaknesses under the technical and
   past performance factors.[5] The consensus evaluation results for Bart's
   and Apogen's quotations were[6]:

   +----------------------------------------------------+
   |                      |    Apogen    |     Bart     |
   |----------------------+--------------+--------------|
   |Technical             |  [DELETED]   |  [DELETED]   |
   |----------------------+--------------+--------------|
   |Past Performance      |  [DELETED]   |  [DELETED]   |
   |----------------------+--------------+--------------|
   |Price   |Base         |  [DELETED]   |  [DELETED]   |
   |        |-------------+--------------+--------------|
   |        |Opt 1        |  [DELETED]   |  [DELETED]   |
   |        |-------------+--------------+--------------|
   |        |Opt 2        |  [DELETED]   |  [DELETED]   |
   +----------------------------------------------------+

   AR exh. 19, TEP Memorandum, at 4; exh. 20, Business Negotiation
   Memorandum, at 6.

   As shown above, [DELETED] under the technical evaluation factor. In
   evaluating Apogen's quotation under this factor, the TEP identified
   [DELETED].[7] Under the past performance factor, the TEP identified
   [DELETED]. As to price, [DELETED]. AR exh. 18, TEP Consensus Evaluation,
   at 1. The evaluators summarized their findings in its report to the CO, as
   follows:

     [DELETED]

   AR exh. 19, TEP Memorandum, at 2.

   In evaluating Bart's quotation under the technical evaluation factor, the
   TEP identified [DELETED].[8] With regard to past performance, the TEP
   identified [DELETED]. AR exh. 17, TEP Consensus Evaluation, at 1-2.
   Overall, the evaluated findings with regard to Bart's quotation were
   summarized as:

     [DELETED][9]

   AR exh. 19, TEP Memorandum, at 1.

   Based on these evaluation findings, the CO determined that Bart's
   [DELETED] quotation represented the best value to the government. In
   reaching this conclusion, the CO found that the benefits associated with
   Bart's solution, specifically including Bart's partnership with [DELETED]
   (which, as noted above, the SOW identified as the manufacturer of
   [DELETED] of CBP's equipment), justified [DELETED]. Subsequently, the task
   order was issued to Bart on the basis of its initial quotation. COS at
   3-4. This protest followed.

   DISCUSSION

   Although Apogen raises various issues regarding the agency's evaluation of
   vendors' quotations, as well as the resulting source selection decision,
   its protest submissions focus on the assertion that Bart was improperly
   given positive evaluation credit for its partnership with [DELETED]--that
   is, what the agency refers to as "reach back" capability. Apogen maintains
   that the agency's consideration of, and reliance on, Bart's "reach back"
   capability constituted application of an unstated evaluation factor. We
   disagree.

   When an agency evaluation is challenged, we will review the agency's
   actions to ensure that they are reasonable and consistent with the
   solicitation's stated evaluation factors, as well as with applicable
   procurement laws and regulations; a protester's mere disagreement with the
   agency's judgment does not establish that the agency acted unreasonably.
   Worldwide Language Res., Inc., B-297210 et al., Nov. 28, 2005, 2005 CPD
   para. 211 at 3; Ben-Mar Enters., Inc., B-295781, Apr. 7, 2005, 2005 CPD
   para. 68 at 7. An agency properly may take into account matters that are
   encompassed by a stated evaluation factor. See STEM Int'l, Inc., B-295471,
   Jan. 24, 2005, 2005 CPD para. 19 at 3; North Am. Military Housing, LLC,
   B-289604, Mar. 20, 2002, 2002 CPD para. 69 at 5.

   Here, the solicitation expressly advised vendors that, in evaluating
   quotations under the technical evaluation factors, the agency would
   consider a vendor's understanding of the work and further advised vendors
   that "[e]vidence of supporting subcontractors and business partners will
   be considered." RFQ, Letter from CBP to Prospective Vendors, at 3 (June
   27, 2006). Accordingly, Bart's partnership with [DELETED], a firm listed
   in the SOW as a manufacturer of [DELETED] portion of the CBP equipment to
   be maintained, is clearly relevant to Bart's understanding of the work to
   be performed; as such, consideration of Bart's relationship with [DELETED]
   was clearly within the scope of the solicitation's stated evaluation
   criteria. Accordingly, we have no basis to question the agency's
   consideration of, and reliance on, the experience and availability of
   [DELETED] personnel in concluding that Bart's enhanced access to such
   personnel by virtue of its partnership with [DELETED] would provide added
   benefit to the agency, and we reject Apogen's assertion that consideration
   of that relationship was inappropriate.

   Further, Apogen asserts that, even if consideration of Bart's relationship
   with [DELETED] was appropriate, it was unreasonable for the agency to
   conclude that it provided any meaningful benefit. We disagree. Here, the
   RFQ's requirements were primarily stated in terms of functional or
   performance requirements which permitted a vendor to propose its own
   unique approach. While the solicitation thus left it to the vendor to
   propose what it believed to be the best approach for satisfying the RFQ
   requirements, there was no guarantee that the agency would consider
   different approaches to be equally effective. Based on the tasks
   contemplated for performance under this task order, including maintenance
   of [DELETED] amount of equipment manufactured by [DELETED], the agency
   reasonably concluded that Bart's solution, including its relationship with
   [DELETED] was more advantageous to the government than that of Apogen,
   based on the agency's conclusion that Bart's personnel would be more
   knowledgeable regarding a significant portion of the work to be
   performed.[10]

   Next, Apogen protests the agency's evaluation of quotations with regard to
   the past performance factor. In this regard, Apogen raises various
   arguments to support its view that its quotation should have received a
   more favorable past performance assessment, and that Bart's quotation
   should have received a less favorable assessment. We have reviewed
   Apogen's various contentions, along with the agency's evaluation record as
   discussed below, and find no basis to question the agency's evaluation.

   The evaluation of past performance, including the agency's determination
   of the relevance and scope of the vendor's performance history to be
   considered, is a matter of agency discretion, which we will not question
   unless it is unreasonable or inconsistent with the solicitation criteria
   or with procurement statutes or regulations. National Beef Packing Co.,
   B-296534, Sept. 1, 2005, 2005 CPD para. 168 at 4.

   Here, in reaching its conclusion regarding the differences between the two
   quotations under the past performance factor, the TEP identified
   [DELETED]. Although the agency was able to obtain past performance
   information from only two of the three references provided by Bart,[11]
   each reference provided [DELETED]. For example, one reference noted that
   [DELETED]. The other reference provided [DELETED]. AR exh. 17, Technical &
   Past Performance Ratings for Bart, at 3-4. Thus, based on the information
   reported by references and the past performance summaries included in the
   vendor's quotation, the agency concluded that Bart's quotation merited
   [DELETED]. Id. at 1.

   [DELETED]. AR exh. 18, Technical & Past Performance Ratings for Apogen, at
   2. Another past performance reference stated that [DELETED]. Id. at 3.
   Accordingly, the agency rated Apogen's quotation as [DELETED] under the
   past performance evaluation factor. Based on our review of the entire
   record, including the information provided by both Bart's and Apogen's
   references, we find no basis to question the agency's past performance
   evaluation.

   Finally, Apogen challenges the agency's best value determination, arguing
   that [DELETED]. Where, as here, the solicitation indicates that technical
   and past performance considerations factors were "significantly more
   important" than price in determining the best value to the government
   [DELETED]. See DDD Co., B-276708, July 16, 1997, 97-2 CPD para. 44 at 3.
   Consequently, although the CO recognized [DELETED], she determined that
   Bart's solution, including its partnership with [DELETED], was
   significantly more beneficial to the government. Our review of the record
   provides no basis to conclude that the agency's determination in this
   regard was unreasonable.

   The protest is denied. [12]

   Gary L. Kepplinger
   General Counsel

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

   [1] The SOW included a separate listing of all existing operating systems,
   software products and hardware products to provide guidance as to which
   products and systems the successful vendor would be modernizing and
   maintaining. RFQ, SOW, app. A (July 18, 2006).

   [2] The RFQ specified that the vendor's quotation should describe the
   vendor's corporate capabilities and history, to demonstrate that both the
   vendor's organization and proposed key personnel can successfully meet the
   requirements of the SOW. In addition, quotations were required to include
   a staffing plan, resumes for key personnel, and a description of the
   vendor's current personnel resources for this requirement. RFQ, Letter
   from CBP to Prospective Vendors, at 3 (June 27, 2006).

   [3] In order to evaluate quotations under the past performance factor, the
   RFQ required vendors to identify three contracts/task orders under which
   the firm has provided relevant services within the past 3 years and which
   demonstrate the success of the vendor's technical approach with relevant
   past performance. RFQ, Letter from CBP to Prospective Vendors, at 4 (June
   27, 2006).

   [4] With regard to price, vendors were directed to submit quotations on a
   labor hour basis, detailing the number of labor hours per labor category.
   RFQ, SOW, at 4 (July 18, 2006).

   [5] The agency's evaluation plan provided that the TEP would assign
   adjectival ratings of either "outstanding," "highly satisfactory,"
   "satisfactory," "marginal" and "unsatisfactory" under the non-price
   factors. AR exh.4, Evaluation Plan, at 5. A rating of "outstanding" was
   assigned to a quotation that:

     significantly exceeds objectives (or expectations) in ways that provide
     tangible benefits to the Government or meets objectives (or
     expectations) and contains one or more enhancing feature(s) that
     significantly benefit the Government. Weaknesses, if any, are extremely
     minor and are offset by the enhancing feature(s) and/or other strengths.

   Similarly, a rating of "highly satisfactory" was assigned to a quotation
   that:

     exceeds objectives (or expectations) in ways that benefit the Government
     or meets objectives (or expectations) and contains at least one
     enhancing feature that provides a benefit to the Government. Weaknesses
     are minor and may be offset by the enhancing feature or other strengths.

   Id.

   [6] The agency reports that a competitive range was not established
   because the contracting officer (CO), who served as the source selection
   official, determined that discussions were unnecessary. Contracting
   Officer Statement (COS) at 3. The other vendors' submissions, and the
   agency's evaluation of those submissions, are not relevant to resolution
   of Apogen's protest; accordingly they are not discussed.

   [7] [DELETED]. AR exh. 18, TEP Consensus Evaluation, at 1.

   [8] [DELETED]. AR exh. 17, TEP Consensus Evaluation, at 1-2.

   [9] As noted above, the solicitation listed all existing operating
   systems, software precuts and hardware that the successful vendor will be
   required to maintain. RFQ SOW, app. A (July 18, 2006).

   [10] Apogen complains it has [DELETED] which were not given comparable
   credit. AR exh. 16, Apogen's Quotation, at 5. However, Apogen does not
   persuasively explain how its [DELETED] would provide meaningful benefit to
   the government in a manner equal to or greater than the benefit provided
   by Bart's relationship with [DELETED].

   [11] The contemporaneous record includes a past performance survey
   memorandum from a member of the agency's TEP and the contract specialist
   documenting their efforts to obtain information from the third reference.
   In this regard, there is no legal requirement that all past performance
   references be included in a valid past performance evaluation. See N. Am.
   Aerodynamics, Inc., B-285651, Sep. 15, 2000, 2000 CPD para. 160; Lynwood
   Mach. & Eng'g., Inc., B-285696, Sep. 18, 2000, 2001 CPD para. 113.

   [12] In pursuing this protest, Apogen has raised various collateral
   issues. We have considered all of Apogen's arguments and find no basis for
   sustaining its protest.