TITLE: B-299317.4, Department of the Army--Reconsideration, June 8, 2007
BNUMBER: B-299317.4
DATE: June 8, 2007
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B-299317.4, Department of the Army--Reconsideration, June 8, 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: Department of the Army--Reconsideration

   File: B-299317.4

   Date: June 8, 2007

   DECISION

   The Department of the Army asks that we reconsider our decision in L-3
   Communications Titan Corp., B-299317 et al., Mar. 29, 2007, 2007 CPD
   para. ___, in which we sustained L-3's protest of the award of a contract
   to Global Linguist Solutions, LLC (GLS) under request for proposals (RFP)
   No. W911W4-05-R-0001 to provide interpretation and translation services
   for the U.S. armed forces in Iraq.

   We deny the reconsideration request.

   The RFP provided for award of an indefinite-delivery indefinite-quantity
   contract for a 5-year period, during which individual task orders would be
   issued, and advised offerors that award would be based on the proposal
   offering the best value to the government considering the following
   evaluation factors: management, past performance, and cost. With regard to
   the most important factor, management, the solicitation identified the
   following subfactors: fill rate, experience, sustainment, staffing plan,
   transition plan and small business participation.

   In our decision, we found unreasonable the Army's evaluation under the
   fill rate and experience subfactors, and that the evaluation scheme for
   transition plans did not support meaningful comparison and discrimination
   between competing proposals. In requesting reconsideration, the Army takes
   issue with our findings in all three respects.

   Fill Rate Subfactor

   The RFP identified the linguist staffing levels that would be required
   under the first task order ("task order 1"), and provided that various
   aspects of the offerors' proposals would be evaluated against the task
   order 1 requirements. For that task order, the solicitation required
   offerors to propose enough personnel to fill 7,217 full-time equivalent
   (FTE) linguist positions, and defined an FTE as follows: "an FTE year will
   consist of a total of 3,744 total productive hours (12 hours a day; 6 days
   a week; 52 weeks a year)." Agency Report (AR), Tab 10, at 213.
   Accordingly, the ultimate requirement, pursuant to task order 1, was to
   provide enough linguist personnel to perform 27,020,448 productive hours
   (7,217 FTE x 3,744 productive hours). In this respect, since an FTE was
   based on productive hours, in order to provide that number of productive
   hours an offeror necessarily had to propose to hire more than 7,217
   people, since additional personnel would be needed to accommodate
   situations where linguists were on medical leave, family leave, holiday,
   etc.

   Section L of the solicitation directed offerors to "identify the number of
   Full-Time Equivalent (FTE) linguists proposed to satisfy the positional
   assignments specified in . . . Task Order 1," and section M advised
   offerors that the agency would assess the probability that "the Offeror
   will have available the necessary (Quantity and skill type) of . . .
   linguists to successfully and timely perform the scope of work of [task
   order 1]." AR, Tab 10, at 213, 247.

   In responding to the solicitation's requirement to "identify the number of
   Full-Time Equivalent (FTE) linguists proposed to satisfy the positional
   assignments specified in . . . Task Order 1," GLS stated in its proposal:

     We estimate the number of Full Time Equivalent linguists necessary to
     fill post-transition Task Order (T.O.) 1 will be [deleted], with a total
     number of productive hours being [deleted] hrs/yr.

   AR, Tab 35, at 1,662.

   L-3's proposal, in responding to this section L requirement, stated:

     [T]o . . . meet 100% of Task Order 1 requirements in the future, we
     estimate that [deleted] Full Time Equivalents (FTEs) will be required.

   AR, Tab 14, at 434.

   In evaluating the proposals, the agency criticized L-3's proposal of
   [deleted] "Full Time Equivalents," on the basis that it would create a
   "shortfall" of linguists, stating:

     L-3 . . . proposes a hire rate of [deleted] while at the same time
     recognizing a historic linguist non-availability rate of [deleted].
     Therefore, there is a 1.1% shortfall built into the proposal that
     equates to a shortfall of approximately 70 linguists based on the Task
     Order 1 requirement of approximately 7,000.

   AR, Tab 67, at 4,547.

   Based on this evaluated weakness, the source selection authority (SSA)
   downgraded L-3's proposal, specifically stating in the source selection
   decision that, "[a]s a result of this weakness, I judged L-3 Titan's
   proposal to be second strongest in this [most heavily weighted]
   subfactor." Id.

   In contrast, the agency performed no quantitative analysis regarding
   whether GLS's proposal, in offering [deleted] "Full Time Equivalent
   linguists," would provide the number of linguists needed for [deleted]
   productive linguist hours. Accordingly, we sustained the protest, stating
   (at 9):

     Absent the agency's consideration of this issue, reasonably documented
     and rationally supported by credible data, we are unable to conclude
     that the agency reasonably evaluated L-3's proposal of [deleted]
     linguists as being more likely to create a shortfall against the
     required fill rate than GLS's proposal of [deleted] linguists.

   In requesting reconsideration, the agency asserts that GLS's proposal to
   provide [deleted] "Full Time Equivalent linguists" was materially
   different from L-3's proposal to provide [deleted] "Full Time
   Equivalents." In short, the agency asserts that, in proposing [deleted]
   "Full Time Equivalent linguists," GLS was actually proposing to provide a
   greater number of productive hours than the [deleted] required by task
   order 1. See Recon. Request at 2-4. The record is to the contrary.

   First, as we noted above, and in our initial decision, GLS's proposal
   expressly stated:

     We estimate the number of Full Time Equivalent linguists necessary to
     fill post-transition Task Order (T.O.) 1 will be [deleted], with a total
     number of productive hours being [deleted] hrs/yr. [Emphasis added.]

   AR, Tab 35, at 1,662.

   Further, as we noted in our decision, the agency's contemporaneous
   evaluation record expressly refers to GLS's proposal of [deleted] "Full
   Time Equivalent linguists" as reflecting "extra people being used to fill
   unexpected absences." AR, Tab 64, at 4,379. The evaluation record further
   states: "The hours in the [GLS] cost proposal, annually, are [deleted] to
   cover transit and absence." Id. (Emphasis added.) Finally, GLS's cost
   proposal explains that its proposal of [deleted] FTEs more than the task
   order 1 requirement of 7,217 FTEs [deleted] reflected the fact that GLS
   proposed to provide [deleted], stating "[these linguists will] have
   [deleted] leave and holidays that will require backfill personnel to
   support the mission while the individual linguist is away."[1] AR, Tab 64,
   at 3,290 (emphasis added).

   In sum, as we stated in our initial decision, it is clear that GLS's
   proposal to provide an additional [deleted] "Full Time Equivalent
   linguists" constituted a proposal to account for [deleted] non-productive
   time--just as L-3's proposal, offering to provide an additional [deleted]
   "Full Time Equivalents" [deleted] constituted a proposal to account for
   [deleted] non-productive time. Accordingly, there is no merit in the
   agency's assertion that GLS's proposal to provide [deleted] "Full Time
   Equivalent linguists" reflected an offer to perform a greater number of
   productive hours than the solicitation required. Based on this record, we
   affirm our decision that the agency's evaluation of the offerors'
   proposals regarding the fill rate requirements was not reasonable.

   In any event, even if the record supported the Army's reconsideration
   argument, the agency's evaluation of GLS's proposal would fail to reflect
   a reasonable application of the solicitation's stated evaluation factors.

   As discussed above, section M of the solicitation, under the heading "fill
   rate," advised offerors that the agency would assess whether an offeror
   "will have available the necessary (Quantity . . .) of . . . linguists to
   successfully and timely perform the [task order 1] scope of work"--that
   is, to fill 7,217 FTE positions, or perform 27,020,448 productive linguist
   hours. AR, Tab 10, at 213, 247. In light of the solicitation's definition
   of an FTE as 3,744 productive hours per year, along with the accepted fact
   that in order to get 7,217 FTEs, the contractor needs to hire more than
   7,217 people, it was clearly necessary for the agency to consider the
   number of linguists that each offeror intended to provide, and the amount
   of actual productive time reasonably expected from each linguist--or,
   conversely, the amount of time a linguist would be expected to be in a
   non-productive status. While the agency performed precisely that
   quantitative analysis regarding L-3's proposal--and, as noted above,
   concluded based on the agency's projection of an [deleted]
   "non-availability rate," that L-3's proposal of [deleted] FTEs would
   create a "shortfall,"--the agency performed no similar analysis regarding
   GLS's proposal.[2] As we noted in our decision, absent such analysis the
   record simply cannot support as reasonable the agency's conclusion that
   L-3's proposal was more likely to create a shortfall against the fill rate
   requirements than was GLS's.

   Experience Subfactor

   In discussing the agency's evaluation under the second most important
   management subfactor, experience, we noted that section M of the
   solicitation provided for an assessment regarding the "extent of [the
   offerors'] experience," and provided:

     Proposals will be evaluated as more advantageous the greater the extent
     to which recent experience reflects the following scope of work
     requirements;

       (a) Interpreters and Translators speaking the required SCRL [specific
       contract required languages].

       (b) Recruiting, Hiring and Retaining of quantities of personnel
       similar to Task Order 1.

       (c) Managing personnel in an environment similar to the Task Order 1.

   AR, Tab 10, at 247.

   At the hearing in our Office on L-3's protest, the SSA acknowledged that
   the extent of L-3's experience with regard to the first requirement was
   greater than that of GLS.[3] With regard to the second, the agency's
   evaluation record identified as a "Strength" in L-3's proposal: "Corporate
   and Key personnel experience in large scale (>[deleted])."[4] AR, Tab 86,
   at 5,549. In the same document, discussing the experience rating for GLS's
   proposal, the agency noted the following "Strength": "Corporate experience
   in large scale (>[deleted] personnel) deployments in partner firms." Id.
   at 5,548.

   Despite the solicitation's provision stating that "[p]roposals will be
   evaluated as more advantageous the greater the extent to which recent
   experience reflects the . . . scope of work requirements," along with the
   fact that L-3's experience with regard to two of the three scope of work
   requirements was nearly identical to the requirements at issue, while
   GLS's was not, the agency evaluated GLS's and L-3's proposal as equal
   under the experience subfactor.

   In discussing this matter at the hearing, the SSA testified that he
   recognized that the scope of work involved more than 7,000 personnel, and
   that the solicitation provided that proposals would be evaluated "as more
   advantageous the greater the extent to which recent experience reflects
   the . . . scope of work requirements." He indicated, however, that the
   evaluation of the two proposals as equal for this factor was reasonable
   because, "in [his] judgment, there was a threshold of sufficiency,"
   elaborating that "I thought, I judged, [deleted] was . . . an adequate
   threshold for experience." Tr. at 152-52.

   We found that the evaluation of the two proposals as equal under the
   experience subfactor reflected an impermissible deviation from the
   solicitation's express provision that proposals would be rated as "more
   advantageous" the greater the extent to which an offeror's recent
   experience reflected the solicitation's stated requirements. In our view,
   the agency effectively applied a materially different evaluation
   criterion, replacing the required assessment with what was essentially the
   SSA's pass/fail assessment of whether an offeror's experience passed a
   "threshold of sufficiency."

   In requesting reconsideration, the agency asserts that our reliance on the
   SSA's responses to GAO's questions was inappropriate; the agency
   references other portions of testimony which, it maintains, refute the
   SSA's testimony regarding a "threshold of sufficiency" and reflect a
   reasoned and reasonable judgment that the firms' proposals were equal
   under the experience subfactor.

   We see no basis to reconsider our conclusion. Our view that the evaluation
   under the experience subfactor was unreasonable was derived from section
   M's advice that there would be a comparative assessment of the offerors'
   experience; the RFP language that proposals would be evaluated "as more
   advantageous the greater the extent to which recent experience reflects
   the following scope of work requirements"; the listing, immediately after
   that language, of three such specific requirements; and the fact that the
   agency's evaluation itself expressly referred to the scope of work in
   terms of the number of people to be deployed, yet made no distinction
   between the offerors in that regard. Indeed, in a testimony excerpt on
   which the agency's reconsideration request relies, the SSA, in explaining
   why GLS's experience with deployments of [deleted] was evaluated as
   equivalent to L-3's experience with [deleted], stated that he viewed the
   solicitation's evaluation criteria as merely establishing a requirement
   for experience with "large numbers" of personnel, testifying that "GLS and
   its component parts had -- has experience in providing large numbers of
   people. [Deleted] people is large numbers to me." Tr. at 45. We simply
   cannot see how an assessment of proposals against this RFP's scope of work
   can reasonably lead to assigning an offeror whose experience directly
   correlates to such scope the same rating as an offeror with experience in
   deployments [deleted] simply because both experiences are with "large
   numbers of people." The agency's reconsideration request on this issue,
   while evidencing the agency's disagreement with our conclusion that the
   SSA did not apply the solicitation's stated evaluation factors with regard
   to experience, does not establish that it was based on any error of fact
   or law.[5]

   Transition Subfactor

   The solicitation established a 90-day transition period and required that,
   at the end of this period, the awardee had to be performing at the full
   task order 1 level. L-3, as the incumbent contractor, proposed to provide
   [deleted]; in contrast, GLS proposed what the cost evaluation team (CET)
   described as [deleted]. Tr. at 613. Specifically, GLS [deleted].
   Consistent with the materially different levels of effort being offered,
   GLS's evaluated cost for the transition period was [deleted], and L-3's
   evaluated cost for the transition period was [deleted]. AR. Tab 66, at
   4,461.

   We noted that the government's actual requirements for linguists during
   the transition period were not expected to differ in any material way from
   the task order 1 requirements. GLS's proposal to provide [deleted]
   linguist hours during the transition period thus would result in increased
   costs to the government outside of the contract, in order to [deleted]. In
   contrast, L-3's proposal of a [deleted] during the transition period
   resulted in less costs the government would incur outside of the contract,
   because [deleted]. In short, the offerors' different approaches to
   transition--which had a material effect on their respective evaluated
   costs--would have little effect on the costs the government will actually
   incur for the required linguistic services during the transition
   period.[6]

   In our decision, we noted that GLS's approach to performance during the
   transition period was "different" from L-3's only in that GLS [deleted],
   and that the agency had not identified any aspect of GLS's approach that
   was otherwise beneficial to the government. We concluded that where, as
   here, the agency had placed significant importance on the offerors'
   capabilities to successfully provide 100% of the required linguists during
   the contract performance period, an evaluation scheme that effectively
   penalized one offeror for proposing to provide the required linguists
   [deleted] and, conversely, effectively rewarded a competing offeror for
   proposing [deleted]--particularly when the costs associated with [deleted]
   accrue to the government--did not appear to be rational or reasonable.
   Accordingly, we stated that the evaluation scheme failed to comply with
   the requirement in Federal Acquisition Regulation sect. 15.304(b) that
   evaluation factors support meaningful comparison and discrimination
   between competing proposals.

   In requesting reconsideration, the Army points out that since the RFP
   provided for a transition period, and stated that "the most probable cost
   to the Government to perform" task order 1 would be evaluated, the agency
   was compelled by the solicitation's terms to include both offerors'
   transition costs in the evaluation. The agency further argues that it
   would have been improper to consider costs outside of the contract since
   the RFP did not provide for such consideration; the Army argues: "There is
   no good cause, legal support, or precedent for the GAO to step in and
   prohibit the evaluation of transition costs, or, alternatively, mandate
   what costs outside the procurement must be evaluated." Recon. Request at
   16. The agency further notes that even though L-3, [deleted]. Id. at
   16-17.[7]

   In our decision, we determined that in order to remedy the Army's failure
   to properly evaluate the proposals under the solicitation's fill rate and
   experience subfactors, discussions needed to be reopened, revised
   proposals submitted, and a new selection decision made. With respect to
   transition costs, the evaluation record evidenced the importance that the
   Army placed on an offeror providing all required linguists throughout the
   contract period; the agency's need for linguists existed, and would need
   to be paid for by the government, during the transition period; and the
   agency evaluators themselves realized that GLS's proposed transition
   efforts did not reflect the government's actual costs, but concluded that
   there was no way of dealing with that anomaly as the RFP was structured.
   See n.5, supra. Our decision should not be read to "prohibit the
   evaluation of transition costs, or, alternatively, mandate what costs
   outside the procurement must be evaluated" (in the words of the Army's
   reconsideration request)--we simply intended to point out that what the
   Army did in this case did not make sense. Indeed, in addressing transition
   costs in the context of our recommendation, we were expressly mindful of
   the Army's view that it had to evaluate transition costs under this RFP,
   and could not use extra-procurement costs in evaluating the proposals--we
   stated (at 14), "it appears the terms of the solicitation . . . are
   perceived by the agency as precluding a reasonable evaluation of proposals
   . . . ." Our point was that in remedying the procurement, the agency
   should address that perception, and thereby ensure a meaningful cost
   evaluation--in our view, it would make little sense for the Army to
   reopen, reevaluate, and re-select while leaving in place an evaluation
   scheme that failed to do so. That remains our position.

   Under our Bid Protest Regulations, to obtain reconsideration the
   requesting party must show that our prior decision contains errors of fact
   or law that warrants reversal or modification of our decision. 4 C.F.R.
   21.14(a)(2007). As discussed above, the agency's reconsideration request
   fails to make that showing.

   The request for reconsideration is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] [Deleted].

   [2] The agency asserts that it considered GLS's proposed recruiting
   processes, and that its consideration of these matters adequately met its
   obligations to evaluate whether GLS will provide the necessary quantity of
   linguists to perform the contract. Nothing in the agency's consideration
   of GLS's recruiting processes, however, addressed the quantity of
   linguists that GLS would provide, or whether that quantity would be
   sufficient to perform the contract requirements.

   [3] Specifically, the following colloquy took play between protester's
   counsel and the SSA:

     Q.    Okay lets take the first of the three [scope of work
     requirements,] subfactor A.
     A.     Right.
     Q.    It's experience in interpreters and translators speaking the
     required SCRL; right? So that's experience in providing linguists;
     right?
     A.     That's correct.
     Q.    Okay. Now, you graded L-3 and GLS as equal with respect to that;
     correct?
     A.     Yes.
     Q.    Okay. Could I ask you to look at the sentence that immediately
     precedes the three subfactors there, the sentence that says "proposals
     will be evaluated as more advantageous the greater the extent to which
     recent experience reflects the following scope of work requirements."
     A.     Right.
     Q.    The L-3 recent experience reflects the scope of work of providing
     linguists to a much greater degree than the GLS recent experience does;
     correct?
     A.     The quantity of linguists under - that the incumbent is providing
     right now is higher than that of the competitor, that's correct.
     Q.    Right. It's a greater extent?
     A. It's a higher number, yeah, you could use "greater extent."

   Tr. at 142-43.

   [4] As noted above, task order 1 contemplates hiring over 7,000 personnel.

   [5] The agency also suggests that its evaluation of experience should be
   considered reasonable on the basis that the resumes of various GLS key
   personnel indicated experience with managing people who, when added
   together, aggregate to more than [deleted] people. However, the resumes on
   which the agency relies reflect experience managing the same people.
   Applying the agency's theory, an offeror with 7 key personnel, each of
   whom had experience managing the same 1,000 people would properly be
   credited with experience managing 7,000 people. The agency's argument
   regarding the aggregated experience of GLS's key personnel is without
   merit, and provides no basis for reconsideration of our decision.

   [6] At the GAO hearing, the CET chair acknowledged that, during the source
   selection process, the agency evaluators recognized that the [deleted]
   evaluated cost associated with GLS's proposed transition efforts failed to
   reflect the actual cost to the government, but concluded that "given the
   way the RFP was structured, we had no way of dealing with that particular
   issue." Tr. at 640-43.

   [7] The Army also maintains that it was unfair of our Office to address
   the transition cost issue because L-3's protest never properly and timely
   raised it. L-3 plainly raised the issue. See Protest at 36 ("[the]
   incremental costs to GLS of ramping up to get to where L-3 already is
   necessarily would be - - if properly evaluated for cost realism - in
   excess of [deleted]."); Supplemental Protest at 94 (under the heading "The
   Army Failed Even to Evaluate the Basis for GLS's [deleted] Transition Cost
   Advantage": "[The] wide disparities in proposed [deleted] cried out for a
   realism analysis to ascertain why such a [deleted] difference in proposed
   [deleted] exists."); Comments on Supplemental Protest at 36 ("The Army's
   evaluation is flawed also because it failed to appreciate the cost
   implications of L-3's and GLS's different transition approaches, resulting
   in a [deleted] but illusory cost difference between L-3's and GLS's costs
   during the transition period."). As to the matter's timeliness, as we
   stated in our decision we do not have to resolve that issue in light of
   our conclusions regarding the fill rate and experience subfactors.