TITLE: B-299317; B-299317.2; B-299317.3, L-3 Communications Titan Corporation, March 29, 2007
BNUMBER: B-299317; B-299317.2; B-299317.3
DATE: March 29, 2007
**************************************************************************************
B-299317; B-299317.2; B-299317.3, L-3 Communications Titan Corporation, March 29, 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: L-3 Communications Titan Corporation
File: B-299317; B-299317.2; B-299317.3
Date: March 29, 2007
W. Jay DeVecchio, Esq., Donald B. Verrilli, Jr., Esq., Kevin C. Dwyer,
Esq., William M. Hohengarten, Esq., Richard W. Arnholt, Esq., Luke C.
Platzer, Esq., and Edward Jackson, Esq., Jenner & Block LLP, for the
protester.
William L. Walsh, Jr, Esq., J. Scott Hommer, III, Esq., Peter A. Riesen,
Esq., Keir X. Bancroft, Esq., Kristen E. Burgers, Esq., Rebecca E.
Pearson, Esq., and Anthony James Pagano, Esq., Venable LLP, for Global
Linguist Solutions, LLC, an intervenor.
Raymond M. Saunders, Esq., and Capt. Christopher L. Krafchek, Department
of the Army, for the agency.
Glenn G. Wolcott, Esq., and Ralph O. White, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Evaluation record fails to reasonably support the agency's conclusion
that protester's proposal of [deleted] linguists is more likely to create
shortfalls against the solicitation's requirements to fill 7,217 linguist
positions than awardee's proposal of [deleted] linguists.
2. Where solicitation established specific evaluation benchmarks for
evaluation of offerors' experience, and provided for comparative
assessments against those benchmarks, an agency may not substitute a
previously unidentified "threshold of sufficiency" as an evaluation
benchmark against which proposals are evaluated on a pass/fail basis.
3. Evaluation scheme which effectively penalizes one offeror for proposing
[deleted] and effectively rewards a competing offeror for proposing
[deleted] fails to comply with Federal Acquisition Regulation requirement
that evaluation factors must support meaningful comparison and
discrimination between and among competing proposals.
DECISION
L-3 Communications Titan Corporation (L-3) protests the Department of the
Army's 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. L-3 challenges
the agency's evaluation of proposals under each of the solicitation's
evaluation factors, including factors related to fill rate, experience,
and transition.
We sustain the protest.
BACKGROUND
In June 2006, the Army released the solicitation at issue, seeking
proposals to provide linguistic services in Iraq.[1] Agency Report (AR),
Tab 10, at 120-294.[2] The solicitation provided for award of an
indefinite-delivery indefinite-quantity contract for a 5-year period,
during which individual task orders will be issued; offerors were advised
that "[t]he maximum of all orders under the contract is $4.65 Billion."
Id. at 123.
The solicitation identified the linguist staffing levels, by category,[3]
that will 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.[4] Id. at 247-49, 288.
Offerors were advised 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.[5] Id. at 252. 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.[6] Id.
On or before the August 14, 2006 closing date, proposals were submitted by
three offerors, including GLS and L-3.[7] The proposals were evaluated by
a management evaluation team (MET),[8] a cost evaluation team (CET),[9]
and a past performance evaluation team (PPET);[10] thereafter, discussions
were conducted during which various "Items for Discussion" (IFDs) were
sent to each offeror. The offerors provided written responses to the IFDs
and, at the conclusion of the discussion period, each offeror submitted a
final proposal revision (FPR). Following submission of FPRs, the MET's
ratings with regard to the most important management factor were as
follows:
+------------------------------------------------------------------------+
| | GLS | L-3 |
|------------------------------------+-----------------+-----------------|
|Fill Rate | [deleted] | [deleted] |
|------------------------------------+-----------------+-----------------|
|Experience | [deleted] | [deleted] |
|------------------------------------+-----------------+-----------------|
|Sustainment | [deleted] | [deleted] |
|------------------------------------+-----------------+-----------------|
|Staffing | [deleted] | [deleted] |
|------------------------------------+-----------------+-----------------|
|Transition | [deleted] | [deleted] |
|------------------------------------+-----------------+-----------------|
|Small Business | [deleted] | [deleted] |
|------------------------------------+-----------------+-----------------|
|------------------------------------+-----------------+-----------------|
|Overall Mgmt. Rating | [deleted] | [deleted] |
+------------------------------------------------------------------------+
AR, Tab 67, Source Selection Decision, at 4,535.
Under the past performance factor, [deleted] L-3's and GLS's proposal
received ratings of [deleted]. AR, Tab 66, at 4,459. With regard to cost,
L-3's final evaluated cost was [deleted]; GLS's final evaluated cost was
[deleted] billion. Id. at 4,461.
The evaluation teams' reports were thereafter provided to the SSA and,
following consultations with those teams and the chairs of the SSEB and
SSAC, the SSA made various adjustments to the offerors' management
ratings.[11] AR, Tab 67, at 4,540. Following the SSA's adjustments, the
offerors' management ratings were as follows:
+------------------------------------------------------------------------+
| | GLS | L-3 |
|-----------------------------------+-------------------+----------------|
|Fill Rate |[deleted] | [deleted] |
|-----------------------------------+-------------------+----------------|
|Experience | [deleted] | [deleted] |
|-----------------------------------+-------------------+----------------|
|Sustainment | [deleted] | [deleted] |
|-----------------------------------+-------------------+----------------|
|Staffing | [deleted] | [deleted] |
|-----------------------------------+-------------------+----------------|
|Transition | [deleted] | [deleted] |
|-----------------------------------+-------------------+----------------|
|Small Business | [deleted] | [deleted] |
|-----------------------------------+-------------------+----------------|
|-----------------------------------+-------------------+----------------|
|Overall Mgmt. Rating | [deleted] | [deleted] |
+------------------------------------------------------------------------+
AR, Tab 67, Source Selection Decision, at 4,535.
In lowering L-3's rating under the most important management subfactor,
fill rate, the SSA stated:
I judged L-3 Titan to be [deleted]. . . [T]here 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.
This would perpetuate a significant shortfall and impact Army operations
in Iraq. . . . As a result of this weakness, I judged L-3 Titan's
proposal to be second strongest in this sufactor.
AR, Tab 67 at 4,545.
Thereafter, the SSA selected GLS's proposal for award, again referencing
the solicitation's fill rate requirements, concluding:
The GLS proposal constitutes least risk to the Government with the
greatest assurance of achieving and sustaining required linguist
levels. . . . The GLS proposal was [deleted] the L-3 Titan proposal in
the Past Performance factor and although [deleted] more expensive, I
consider GLS' proposal to be the best of all three proposals and worth
the higher premium price.
AR, Tab 67, at 4,547.
L-3 was subsequently notified of the source selection decision. This
protest followed.
DISCUSSION
L-3 protests the bases for the agency's evaluation regarding each of the
management subfactors, including fill rate, experience, and transition
plan. As discussed below, the agency's evaluations regarding these
subfactors reflect various flaws.
Fill Rate
With regard to fill rate, 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."[12] AR, Tab 10, at 213. Section M of the solicitation advised offerors
that the agency would assess the probability that "the Offeror will have
available the necessary (Quantity and skill type) of CAT I, CAT II and CAT
III linguists to successfully and timely perform the scope of work of
[task order 1]." AR, Tab 10, at 247.
There is no dispute in this record that, in order to meet the task order 1
fill rate requirement of providing 7,217 FTE linguists (that is, providing
3,744 productive hours per linguist per year), it will be necessary to
hire and retain more than 7,217 linguists. Hearing Transcript (Tr.) at
664.[13] Accordingly, in addressing the fill rate requirements, L-3's
proposal provided that, "to . . . meet 100% of Task Order 1 requirements
in the future, we estimate that [deleted] Full Time Equivalents (FTEs)
will be required," specifically adding, "we propose to recruit and deploy
these additional linguists to theater where they will be readily available
to fill positions of linguists on leave [deleted] or absent [deleted]" AR,
Tab 14, at 434.
During discussions, the agency asked L-3 to provide additional information
regarding this aspect of its proposal, requesting that L-3: "Provide
detailed information on how the additional linguists [deleted] will be
used when not deployed and identify where the costs are contained in your
cost proposal." AR, Tab 46, at 3,062. L-3 responded to this request,
stating:
In response to the challenge to maintain 100% fill, we recommend hiring
[deleted] above the Level of Effort (LOE) specified in the solicitation.
At any one time, approximately [deleted] of L-3 Titan's linguist
population is in a status that places the linguist "out of theater."
[deleted]
In order to meet 100% of the contract's "Boots on the Ground" number,
L-3 Titan will be required to "replace" linguists that enter non-direct
support categories with linguists that directly support the contract.
This is an ongoing process. As a result, the contract-required LOE
[level of effort] will remain as close to 100% as possible, [deleted].
Current examples for L-3 Titan's Iraq-based Delivery Order 59
demonstrate the following: [deleted].
Whereas [deleted] linguists are in Iraq providing support to the INSCOM
linguist contract, [deleted] are in a non-direct support category. Over
the past two years, personnel in non-direct support categories have
remained at the [deleted] rate.
AR, Tab 46, at 3,062.
In summary, L-3's proposal, and its response to this IFD, stated that, at
any point in time, approximately [deleted] of L-3's linguists are expected
to be in a non-productive status. The record establishes that the agency
understood this concept and understood that L-3 was proposing to hire
[deleted] linguists, that is, [deleted] over and above the 7,217 FTEs
required by task order 1. Tr. at 89, 541-42. Further, the record is clear
that the agency understood that [deleted] these costs are recovered in
L-3's cost proposal [deleted]. AR, Tab 90, at 5579; Tr. at 550-53, 604-06,
662-63, 666-67.
Nonetheless, the agency criticized L-3's proposed approach on the basis
that the data in the delivery order provided by L-3 in its response to the
agency's IFD (that asked L-3 to discuss "how the additional linguists . .
. will be used when not deployed") indicated that [deleted] of L-3's
linguists were in a non-productive status under that delivery order--as
compared to the slightly lower [deleted] additional linguists that L-3
proposed to hire. Accordingly--based on the agency's projection of the
single delivery order to the total task order 1 requirements--the agency
concluded, "there is a 1.1% shortfall built into [L-3's] 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 4,545. Based
on this projection, the agency assigned a weakness to L-3's proposal, and
the SSA concluded in his source selection decision that "[a]s a result of
this weakness, I judged L-3 Titan's proposal to be second strongest in
this subfactor." Id.
In addressing the fill rate requirement, GLS similarly stated that it was
proposing to hire additional linguists above the 7,217 task order 1
requirements. However, GLS proposed to hire [deleted] fewer additional
linguists, stating:
The timely commitment of linguists to theater is essential to the
success of this effort. 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.
Further, the record is clear that the additional linguists proposed by GLS
are to be used in the same manner as the additional linguists proposed by
L-3--that is, to compensate for linguists that are in a non-productive
status. Specifically, the agency's contemporaneous evaluation record
includes a notation by the CET that states the additional hours proposed
by GLS are "to cover transit and absence." AR, Tab 64, at 4,379. Further,
the specific language of GLS's proposal, quoted above, provides that,
although it intends to hire [deleted] linguists, it is only proposing "a
total number of productive hours [of] [deleted]"--which is [deleted].
Notwithstanding the similarity of approach taken by both offerors, the
agency viewed GLS's proposal of [deleted] linguists as more likely to meet
the solicitation's fill rate requirements than L-3's proposal of [deleted]
linguists.
In reviewing an agency's evaluation, we will not reevaluate offerors'
proposals; rather, we will examine the agency's evaluation to ensure that
it was reasonable and consistent with the solicitation's stated evaluation
criteria and procurement statutes and regulations. E.g., Urban-Meridan
Joint Venture, B-287168, B-287168.2, May 7, 2001, 2001 CPD para. 91 at 2.
Although we will not substitute our judgment for that of the agency, we
will question the agency's conclusions where they are not reasonably
based, inconsistent with the solicitation criteria or undocumented.
Sonetronics, Inc., B-289459.2, Mar. 18, 2002, 2002 CPD para. 48 at 3.
Where there is inadequate support for an agency's judgments, we are unable
to conclude that the agency had a reasonable basis for its source
selection decision. Southwest Marine, Inc.; American Sys. Eng'g Corp.,
B-265865.3, B-265865.4, Jan. 23, 1996, 96-1 CPD para. 56 at 10.
Here, it is clear that the critical criterion for assessing how many
additional linguists will be needed to successfully meet the task order 1
fill rate requirements for annual productive hours is the amount of time
an offeror's linguists are expected to be in a non-productive status.
Accordingly, it appears the only logical basis for the agency's conclusion
that GLS's proposal of [deleted] linguists is more likely to meet the fill
rate requirements than L-3's proposal of [deleted] linguists would be a
rationally supported conclusion that GLS's [deleted] linguists are likely
to spend [deleted] less time in a non-productive status than are L-3's
[deleted] linguists. The record, however, is devoid of any meaningful
analysis addressing that issue. Indeed, at the GAO hearing, the MET chair
testified that the agency gave no consideration to whether the additional
personnel proposed by GLS will be sufficient to compensate for its
linguists' scheduled holidays and sick leave. Tr. at 526. Consistent with
this testimony the record reflects no agency consideration of whether
GLS's linguists will spend more or less time in a non-productive status,
either scheduled or unscheduled, than L-3's linguists--nor has the agency
represented that such analysis was performed. 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.
Experience
With regard to the second most important management subfactor, experience,
section M of the solicitation provided for a comparative assessment
regarding the "extent of [the offerors'] experience," stating:
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.[14]
In evaluating the proposals, the agency recognized that the scope of work
reflected in L-3's performance of the incumbent contract was nearly
identical to the scope of work here; in contrast, the scope of work
reflected in GLS's performance of prior contracts was less similar. At the
GAO hearing, the SSA expressly acknowledged that the extent of L-3's
experience with "interpreters and translators speaking the required SCRL"
was greater than that of GLS. Tr. at 142-43.
Similarly, with regard to "Recruiting, Hiring and Retaining quantities of
personnel similar to Task Order 1," the agency's evaluation record
identifies the following "Strength" in L-3's proposal:
o Corporate and Key Personnel experience in large scale
(>[deleted])[[15]]
AR, Tab 86, at 5,549. I
In the same document, discussing the experience rating for GLS's proposal,
the following "Strength" is noted:
o Corporate experience in large scale (>[deleted] personnel)
deployments in partner firms
Id. at 5,548.
Despite the solicitation's evaluation criteria 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 record discussed above indicating that L-3's performance of the
incumbent contract was nearly identical to the scope of work 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 GAO hearing, the SSA testified that,
rather than applying the criteria established in the solicitation, he
applied a "threshold of sufficiency." Specifically, the SSA testified as
follows:
Q. . . . I'm looking for the [solicitation] language here, "the
proposals will be evaluated as more advantageous the greater the extent
to which recent experience reflects the scope of work requirements." The
scope of work requirements here are 7,000 personnel, am I right?
A. That's correct . . . .
Q. The GLS proposal was based on [deleted]; correct?
A. That's correct. . . .
Q. . . . yet they were evaluated equally . . .
A. In my judgment, there was a threshold of sufficiency. And I thought,
I judged, [deleted] was there. . . . And I thought that was the -- that
was an adequate threshold for experience. So I don't -- that was my
thinking.
Tr. at 152-53.[16]
While the evaluation of proposals is primarily within the discretion of
the contracting agency, an agency may not announce in the RFP that one
evaluation scheme will be used, and then follow another; once offerors are
informed of the criteria against which their proposals will be evaluated,
the agency must adhere to those criteria in evaluating proposals and
making its award decision. Preferred Sys. Solutions, Inc., B-292322 et
al., Aug. 25, 2003, 2003 CPD para. 166 at 6; Trijicon, Inc., B-244546,
Oct. 25, 1991, 91-2 CPD para. 375 at 5.
Here, contrary to the solicitation's express provisions that proposals
would be comparatively evaluated against the task order 1 requirements,
and would be evaluated as "more advantageous" the greater the extent to
which an offeror's recent experience reflected those requirements, the
agency applied materially different evaluation criteria, replacing the
solicitation's comparative assessments with what was essentially the SSA's
pass/fail assessment as to whether an offeror's experience was more than
"trivial" or was greater than a previously unidentified "threshold of
sufficiency."[17] Accordingly, the agency failed to apply the
solicitation's stated evaluation criteria with regard to experience.
Transition
Finally, with regard to transition, the solicitation established a 90-day
transition period and required that, at the end of this period, the
awardee must be performing at the full task order 1 requirements level.
AR, Tab 10, at 217, 248. In addressing the proposals to perform during the
transition period, GLS and L-3 took what the CET chair described as
"different approaches." Tr. at 613. More specifically, as the incumbent
contractor, L-3's proposal offered to provide [deleted]; in contrast, GLS
proposed what the CET chair described as [deleted]. Tr. at 613.
Specifically, GLS [deleted]. Tr. at 639. Consistent with the materially
different levels of effort being provided, 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.
There is no dispute that the U.S. government's actual requirements for
linguists during the transition period is not expected to differ in any
material way from the task order 1 requirements. Similarly, there is no
dispute that GLS's proposal to provide [deleted] during the transition
period results in increased costs to the government, outside of the
contract, in order to [deleted]. In contrast, L-3's proposal of [deleted]
during the transition period, results in decreased costs the government
will incur, outside of the contract, to [deleted]. In short, the offerors'
"different approaches" to transition--which have a material effect on
their respective evaluated costs under this procurement--have virtually no
effect on the costs the government will actually incur for the required
linguistic services during the transition period.
During the GAO hearing, the CET chair testified on this issue as follows:
Q. . . . [I]n terms of actually providing interpreters/linguists to
the warfighter, those requirements are not going to be any different
during the transition period than during the contract performance
period. Am I correct?
A. That's correct. . .
* * * * *
Q. So . . . in terms of the cost to the taxpayer, the [deleted] level
of effort and the [deleted] cost associated with GLS's proposal does not
reflect . . . the costs to the taxpayer. Am I correct
A. Yes. There's a differential between the two of them.
* * * * *
Q. Was there any discussion . . . in the source selection process of
the fact that the [deleted] cost proposed by GLS did not reflect the
cost to the taxpayer?
A. That was an issue that had been decided prior to the release of
the RFP.
Q. That wasn't my question. Was -- during the source selection
process, was this issue discussed?
A. Was it discussed informally among -- on the cost team? Yes, we
had discussion. I mean, we recognized that that was a true statement,
yes.
Q. And was there any discussion as to whether or not this was, in a
sort of layman's term, fair?
A. What we looked at was . . . can we deal with that issue within
the structure of the RFP? And what we concluded was that given the way
the RFP was structured, we had no way of dealing with that particular
issue.
Tr. at 640-43.
Based on the perception that there was "no way of dealing with" this
issue, the agency simply incorporated each offeror's evaluated costs for
the transition period into the total evaluated costs on which the source
selection decision was based.
To summarize, it appears that, due in large part to its incumbency, L-3
was effectively penalized, with regard to its evaluated costs, for
proposing to provide [deleted] to the government during the transition
period and, conversely, GLS was effectively rewarded for proposing
[deleted] during the transition period.
We have long held that any source selection decision must rest upon a
rational basis. Grey Advertising, Inc., B-184825, May 14, 1976, 76-1 CPD
para. 325. Further, it is a fundamental principle of government
procurement that a contracting agency must provide a common basis for
competition and may not disparately evaluate offerors with regard to the
same requirements. See, e.g., Lockheed Martin Info. Sys., B-292836 et al.,
Dec. 18, 2003, 2003 CPD para. 230 at 11-12; Rockwell Elec. Commerce Corp.,
B-286201 et al., Dec. 14, 2000, 2001 CPD para. 65 at 5. Finally, the
Federal Acquisition Regulation (FAR) provides that evaluation factors and
significant subfactors must "support meaningful comparison and
discrimination between and among competing proposals." FAR sect.
15.304(b).
Here, it appears that GLS's "different approach" to performance during the
transition period was "different" only in that it [deleted]. In this
regard, the agency has not identified any aspect of GLS's "different
approach" that is otherwise beneficial to the government. Where, as here,
the agency has placed significant importance on the offerors' capabilities
to successfully provide 100% of the required linguists during the contract
performance period, we do not view as rational or reasonable an evaluation
scheme which effectively penalizes one offeror for proposing to provide
the required linguists [deleted] and, conversely, effectively rewards a
competing offeror for proposing to [deleted]--particularly when the costs
associated with [deleted] accrue to the government; as such the evaluation
scheme fails to comply with the FAR requirement that it support meaningful
comparison and discrimination between the competing proposals.[18] See FAR
sect. 15.304(b).
The protest is sustained.
RECOMMENDATION
As discussed above, it appears the terms of the solicitation fail to
reflect the agency's actual requirements with regard to experience and,
with regard to transition, are perceived by the agency as precluding a
reasonable evaluation of proposals against the same requirements.
Accordingly, we recommend that the agency consider revising the terms of
the solicitation with regard to experience and transition to reflect its
actual requirements and to ensure that the offerors are being meaningfully
evaluated against the same requirements. In any event, we recommend that
the agency reopen discussions with all competitive range offerors, obtain
revised proposals, and award a contract on the basis of the proposal
offering the best value to the government, consistent with the
solicitation. If an offeror other than GLS is selected for award, the
agency should terminate GLS's contract and award to that offeror. We also
recommend that the agency reimburse the protester for its costs of filing
and pursuing the protest, including reasonable attorneys' fees. Bid
Protest Regulations, 4 C.F.R. sect. 21.8(d)(1) (2006). L-3's certified
claim for costs, detailing the time expended and costs incurred, must be
submitted directly to the agency within 60 days of receiving this
decision. 4 C.F.R. sect. 21.8(f)(1).
Gary L. Kepplinger
General Counsel
------------------------
[1] The solicitation describes the scope of contract requirements as
"services necessary to rapidly and securely recruit and deploy foreign
language interpretation and translation services in support of United
States Army . . . attached forces, combined forces, and joint elements who
are executing the military mission known as Operation Iraq Freedom. . . .
The interpreters and translators will be required to accompany military
units during military missions. . . . This effort requires skilled
contract linguists with various foreign language capabilities to support
current intelligence efforts." AR, Tab 10, at 126-27.
[2] The agency report responding to L-3's protest was submitted with each
page consecutively numbered, employing a system commonly referred to as
"Bates stamping." Our citations to particular pages within the agency
report refer to the "Bates stamped" pagination.
[3] The solicitation identified three categories of linguists to be
provided under the contract: category I (CAT I) linguists are non-U.S.
citizens and do not require security clearances; category II (CAT II)
linguists must be U.S. citizens who have been screened and granted interim
secret security clearances; category III (CAT III) linguists must be U.S.
citizens who either possess top secret security clearances or who, after
prescribed counterintelligence screening, have been granted interim top
secret clearances. AR, Tab 10, at 130-31.
[4] The solicitation stated that, under task order 1, a total of 7,217
full-time equivalent (FTE) linguist positions (6,130 CAT I, 952 CAT II,
and 135 CAT III) must be filled, and further provided that "an FTE year
will consist of a total of 3744 total productive hours (12 hours a day; 6
days a week; 52 weeks a year)." Id. at 213, 288
[5] The solicitation provided that management was more important than past
performance, which was more important than cost. Id. at 252.
[6] The solicitation provided that the fill rate subfactor was
significantly more important than the experience subfactor, which was more
important than the remaining subfactors, which were all of equal
importance. Id.
[7] The third offeror's proposal is not relevant to resolution of this
protest, and is not further discussed.
[8] Under the management factor and its subfactors, the MET assigned
adjectival ratings of "Excellent," "Good," "Adequate," "Marginal," or
"Poor." AR, Tab 7, at 67.
[9] With regard to evaluation of cost, the solicitation stated, "All cost
proposal information . . . will be evaluated based on: (a) Reasonable and
realistic data; (b) Offeror having a clear understanding of the
requirements; and (c) Appropriate number of hours and skill levels that
accurately reflects the proposed staffing plan." This section of the
solicitation also provided that "[t]he evaluated cost will be determined
by adjusting each Offeror's proposed cost, and fee when appropriate, to
reflect any additions or reductions in cost elements to realistic levels
when compared to the Offeror's proposed approach." AR, Tab 10, at 251.
[10] The evaluation teams, in the aggregate, formed the source selection
evaluation board (SSEB) and reported, through the source selection
advisory council (SSAC), to the source selection authority (SSA).
[11] The SSA did not make any changes to the past performance ratings or
to the offerors' evaluated costs.
[12] As noted above, task order 1 required a total of 7,217 FTEs and
defined an FTE as "3,744 productive hours (12 hours a day; 6 days a week;
52 weeks a year)." AR, Tab 10, at 213, 288.
[13] In resolving this protest, GAO conducted a 2-day hearing, during
which testimony was provided by the SSA, the SSAC chair, the MET chair,
and the CET chair. At the hearing, the CET chair testified: "There's no
question that in order to get 7217 FTEs, you will need to hire more than
7217 people. You'll have to have more heads." Id.
[14] This section of the solicitation further provided that "To the extent
that an Offeror and its subcontractors have limited experience regarding
some or all the above, but have key personnel who will be playing a
significant role in this effort who do have applicable experience, the
experience of the individuals may be considered in the Government's
evaluation." Id.
[15] As noted above, task order 1 contemplates hiring over 7,000
personnel.
[16] Similarly, despite acknowledging that L-3 had a "greater extent" of
experience with regard to interpreters and translators speaking the
required languages, the SSA testified as follows:
Q. Well, but you didn't give them any benefit with respect to this
subfactor, did you?
A. We noted the differences in the scope of work that was provided.
My judgment was that although different, that the scope that GLS - the
numbers of translators that GLS was providing was substantial, not
trivial . . . and that the experience level was substantive and
therefore on a par.
Tr. at 143-44.
[17] In defending against this protest, the agency notes that one of the
key personnel proposed by GLS has experience in managing [deleted]
personnel. Even if we viewed the management experience of GLS's key
personnel as an appropriate proxy for GLS's corporate experience,
[deleted] personnel is still significantly less than the task order 1
benchmark of over 7,000 personnel established by the solicitation.
[18] We recognize that the agency has argued that L-3 was required to have
raised this matter prior to submitting its proposal and, therefore, that
the issue is not properly for GAO's consideration pursuant to our
timeliness rules. See 4 C.F.R. 21.2(a)(1) (2006). We also recognize that,
in order to have raised this issue prior to submitting its proposal, L-3
would have had to have known: 1) GLS's proposed transition approach and 2)
that the agency would conclude it "had no way of dealing with" the
offerors' materially different approaches. Here, we need not resolve the
timeliness issue in light of our conclusions, discussed above, that the
agency's evaluations with regard to fill rate and experience, the two most
heavily-weighted evaluation subfactors, were unsupported by the record and
inconsistent with the stated evaluation criteria.