TITLE: B-299381, LexisNexis, Inc., April 17, 2007
BNUMBER: B-299381
DATE: April 17, 2007
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B-299381, LexisNexis, Inc., April 17, 2007

   Decision

   Matter of: LexisNexis, Inc.

   File: B-299381

   Date: April 17, 2007

   Gad Epstein for the protester.

   Christopher R. Yukins, Esq., and Kristen E. Ittig, Esq., Arnold & Porter,
   LLP, for West Publishing Corporation, an intervenor.

   William C. Love, Esq., National Transportation Safety Board, for the
   agency.

   Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Protest that agency unreasonably found the protester's proposal
   unacceptable is denied where the record shows that the agency's decision
   was reasonable.

   2. Protest that agency showed favoritism toward awardee by relaxing
   technical requirements is denied where the record shows that the agency
   deleted the requirements only after ascertaining that they were already
   being supplied, through other means, to the end user, and the agency
   allowed the protester to substitute products to meet certain other
   technical requirements.

   3. Protest that agency failed to make available a material amendment to
   the solicitation is denied where the record shows that agency posted the
   amendment to the FedBizOpps website via a hyperlink to another agency
   website.

   DECISION

   LexisNexis, Inc. protests the award of a contract to West Publishing
   Corporation under solicitation No. NTSBQ070001, issued by the National
   Transportation Safety Board (NTSB) for online legal research services.[1]
   The protester alleges that the agency unreasonably found the protester's
   proposal unacceptable, showed favoritism to the awardee by improperly
   relaxing the technical requirements, and failed to make available a
   material amendment to the solicitation containing agency answers to
   questions posed by prospective offerors, including the protester, as well
   as two changes to the technical requirements.

   We deny the protest.

   BACKGROUND

   The RFP, issued November 20, 2006, was published on the Federal Business
   Opportunities (FedBizOpps) website. The contract specialist (CS) states
   that the agency utilizes the Department of Interior, National Business
   Center (DOI/NBC) Electronic Commerce (EC) website to post to FedBizOpps.
   Prospective offerors may access documents and attachments electronically
   through FedBizOpps, via a hyperlink to the DOI/NBC EC website. Agency
   Report (AR), Tab 4, Decl. of CS at 1-2.

   The RFP sought proposals for 1 year of online legal research services with
   four 1-year options. The RFP required that up to two users have access to
   treatises and practice guides, including American Law Reports (ALR),
   "attorney-authored articles that provide an analysis of specific legal
   issue containing detailed discussion of guiding legal principles,
   distinctions, exceptions, applications and contrary approaches," AR, Tab
   2, RFP at 7, and Corpus Juris Secundum (CJS), an encyclopedia of American
   case law. The RFP also required access to sales and use tax licenses.

   The RFP required prospective offerors to submit all questions concerning
   the procurement by December 1. Amendment 1 to the RFP, issued on December
   4, contained questions submitted by prospective offerors (including the
   protester and the eventual awardee, West Publishing) and the agency's
   responses. The contracting officer (CO) states that the individual tasked
   with responding to the questions, the CO's technical representative
   (COTR), had no knowledge of which firm submitted particular questions. AR,
   CO's Statement of Facts, at 2. It is undisputed that questions 6 and 7
   were submitted by West Publishing. Question 6 noted that one of the
   databases listed in the solicitation, the Congressional Quarterly, was not
   among the databases in the incumbent contract and asked whether it was
   required, or merely desirable. AR, Tab 3, amend. 1, at 3. Question 7 posed
   a similar inquiry regarding the Legal Research Index (LRI). Id. at 4. The
   agency responded by deleting both requirements. Id. at 3-4. According to
   the CO, the COTR decided to delete these two requirements only after end
   users reported that they had other means of accessing the required
   information. AR, CO's Statement of Facts, at 3. The CS states that on
   December 4 he posted this amendment to the DOI/NBC EC website; the
   amendment, like the RFP, could be accessed directly on the DOI/NBC EC
   website or through the hyperlink in FedBizOpps to the DOI/NBC EC website.
   AR, Tab 4, Decl. of CS, at 2-3.

   Award was to be made to the offeror providing the best overall value to
   the government, with a proposal's technical approach one of three factors
   to be considered. The closing date for receipt of proposals was December
   8. The protester and the awardee submitted the only proposals. AR, CO's
   Statement of Facts, at 3.

   The LexisNexis proposal offered access to all of ALR for the life of the
   contract for up to two users, as called for by the RFP. In response to the
   sales and use tax licenses requirement, the protester's proposal stated,
   in full:

     LexisNexis does not provide Sales and Use Tax Licenses but we do provide
     various other licenses including those listed below as well as various
     Professional Licenses, Driver's Licenses, Liquor Licenses, Marriage
     Licenses, Divorce Records and AMI Physician Directory, FAA Pilots
     Directory and IRS Tax Practitioners & Enrolled Agents.

   AR, Tab12, at 34.

   As part of the evaluation process, the offerors made oral presentations to
   the COTR, who served as the technical evaluator. The COTR noted that in
   lieu of the required CJS database, the protester's proposal offered Lexis
   Search Advisor; the COTR accepted the offered substitution as comparable
   to CJS. LexisNexis also offered another substitution of comparable sources
   that was accepted. As noted, the LexisNexis proposal had offered to supply
   the ALR database to up to two users. Between the time of proposal
   submission and the oral presentation, however, LexisNexis learned that it
   would be unable to offer ALR beyond December 31, 2007,[2] and alerted the
   agency to this fact. The agency claims that at the oral presentation the
   protester did not offer anything comparable to take the place of ALR, and
   there is nothing in the record to indicate that after the oral
   presentation LexisNexis offered any substitution in writing. With regard
   to the requirement for access to sales and use tax licenses, the COTR
   states as follows:

     [w]hile the [six and a half] pages of licenses listed in Protester's
     March 12, 2007comments concerning Sales and Use Tax Licenses may have
     been included in the proposal at Appendix 1, LexisNexis did not provide
     such a listing in its  response concerning Sales and Use Tax License
     information and, likewise, did not identify which, if any, of the
     databases it provided the NTSB could use to provide the Sales and Use
     Tax information required in the RFP.[3]

   Agency's Response, Mar. 23, 2007, Supp. Decl. of COTR, at 6.

   The agency concluded that LexisNexis had failed to offer ALR for the term
   of the contract, as well as sales and use tax licenses, as specified in
   the RFP. As a result, the agency rated the protester's proposal
   unacceptable, and award was made to West Publishing on January 4, 2007.

   ANALYSIS

   The protester argues that the agency unreasonably found its proposal
   unacceptable. We disagree.

   Where a protester challenges an agency's evaluation of a proposal's
   technical acceptability, our review is limited to considering whether the
   evaluation is reasonable and consistent with the terms of the RFP and
   applicable procurement statutes and regulations. National Shower Express,
   Inc.; Rickaby Fire Support, B-293970, B-293970.2, July 15, 2004, 2004 CPD
   para. 140 at 4-5. As with any evaluation review, our chief concern is
   whether the record supports the agency's conclusions. Innovative Logistics
   Techniques, Inc., B-275786.2, Apr. 2, 1997, 97-1 CPD para. 144 at 9.
   Clearly stated RFP technical requirements are considered material to the
   needs of the government, and a proposal that fails to conform to such
   material terms is technically unacceptable and may not form the basis for
   award. National Shower Express, Inc.; Rickaby Fire Support, supra.

   The agency rated the protester's proposal unacceptable for failure to
   offer ALR for the term of the contract and sales and use tax licenses. The
   protester disputes the agency's claim that it failed to offer those
   required materials, asserting that it "explained to the audience at the
   demonstration . . . that the proposal included hundreds of comparable
   sources and services to ALR including SearchAdvisor, law reviews and
   more." Protester's Response, Mar. 29, 2007, at 1. The agency was unaware
   that the sources of information offered by the protester were comparable
   to the RFP requirements, the protester argues, because the COTR lacked
   "the expertise to compare and contrast the LexisNexis offering to ALR and
   the sales tax source listed in the RFP."[4] Protester's Comments on AR,
   Feb. 26, 2007, at 2.

   It is an offeror's responsibility to submit a well-written proposal, with
   adequately detailed information, which clearly demonstrates compliance
   with the solicitation requirements and allows a meaningful review by the
   procuring agency. CACI Techs., Inc., B-296946, Oct. 27, 2005, 2005 CPD
   para. 198 at 5. An offeror is responsible for affirmatively demonstrating
   the merits of its proposal and risks the rejection of its proposal if it
   fails to do so. HDL Research Lab, Inc., B-294959, Dec. 21, 2004, 2005 CPD
   para. 8 at 5.

   Here, in the two instances where the protester's proposal clearly
   articulated alternative sources of information offered to meet the
   requirements of the RFP, the agency considered the offer and accepted the
   sources as comparable. In contrast, with respect to the ALR and the sales
   and use tax licenses, the protester asserts that the agency should have
   found various lists of information sources in the appendix to be
   comparable to the requirement in the RFP; the agency is under no such
   obligation to parse the protester's proposal to try to determine whether
   the proposal offers comparable sources of information. Even assuming that
   the information offered in the proposal's appendix is comparable to the
   required databases, by placing the information in the appendix and
   requiring the agency to piece together the proposal's content, the
   protester failed in its responsibility to clearly demonstrate compliance
   with the RFP requirements. The record supports the reasonableness of the
   agency's evaluation--its decision to find the proposal unacceptable for
   failure to meet two technical requirements of the RFP--and the protester's
   mere disagreement with the agency's judgment does not establish that the
   agency acted unreasonably. CACI Techs., Inc., supra, at 5-6.

   The protester also alleges that the agency showed favoritism to the
   awardee by improperly relaxing the RFP's technical requirements. As
   discussed above, in response to questions posed to the agency, the COTR,
   without knowledge of which offeror posed particular questions, deleted two
   requirements of the RFP after ascertaining that the end users had other
   access to the information. The protester does not assert that the
   deletions were unreasonable, merely that in making the deletions the
   agency showed favoritism to the awardee.

   On the record, we see no reason to question the agency's action. Although
   the protester, unlike other potential offerors, did not take the
   opportunity to question any of the RFP requirements through the question
   and answer process, the other firms' use of the process was proper.
   Moreover, as noted above, when the protester offered clearly identified
   comparable sources of information in lieu of the CJS and one other
   requirement, the agency accepted the alternate sources--behavior on the
   agency's part that undermines any allegation of favoritism toward the
   awardee.

   The protester argues, essentially, that the agency acted in bad faith. The
   protester has neither rebutted the agency's detailed explanation for why
   it deleted these two requirements, nor provided any evidence to support
   its speculation of improper action in these areas, especially in light of
   the agency's willingness to accept as comparable other sources of
   information from the protester. Accordingly, since a protester's mere
   inference and speculation is insufficient to establish a valid basis of
   protest, we will not give further consideration to these unsupported
   allegations of impropriety. Computers Universal, Inc., B-296501, Aug. 18,
   2005, 2005 CPD para. 161 at 2, n.3.

   Finally, the protester asserts that the agency failed to post online
   amendment 1 to the RFP, and because that amendment deleted two
   requirements of the RFP and contained the agency's responses to questions
   posed by the protester, the agency effectively evaluated proposals using
   undisclosed evaluation factors and failed to respond to the protester's
   questions. The record does not support the allegation that the agency
   failed to post the amendment.

   The agency's posting on the FedBizOpps website had a clearly identified
   hyperlink to additional information, including amendments. The agency has
   explained at length when and how it posted the amendment to both the
   DOI/NBC EC website and, through the hyperlink, to FedBizOpps.[5] Further,
   to the extent the protester points to the fact that the amendment was not
   accessible online through either website during the course of the protest,
   the agency has explained that under the standard procedures governing such
   postings, amendments are no longer available online after the time set for
   receipt of proposals. Specifically, the agency states that the RFP and
   related information, such as amendments, are archived after the proposal
   due date and thereafter are not accessible on the FedBizOpps or DOI/NBC EC
   websites. Thus, the fact that the amendment was not accessible during the
   course of the protest provides no basis to question the agency's assertion
   that the amendment was posted and available on the websites before the
   time set for receipt of proposals. In sum, we find no support in the
   record for the protester's allegation that the agency failed to post the
   amendment as required.[6] See Federal Acquisition Regulation sections
   5.101(a)(1), 5.102(a)(2), 5.210 (regarding the requirements for
   publicizing solicitations on FedBizOpps).

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] Although the solicitation is identified on its cover page as a request
   for quotations (RFQ), the term "proposals" and acronym "RFP," for request
   for proposals, repeatedly appear in, among other things, the
   solicitation's descriptions of the evaluation factors and award scheme.
   Given this, and the fact that whether the solicitation is properly
   considered an RFQ or RFP does not affect the outcome of this protest, we
   refer to the solicitation in this decision as an RFP and the firms'
   submissions as proposals for the sake of clarity.

   [2] ALR is proprietary to West Publishing, and West is not renewing
   LexisNexis' license to offer this source of information beyond December
   31. Protester's Response, Mar. 29, 2007 at 1.

   [3] As noted above, the protester's proposal offered "various other
   licenses" as comparable sources of information.

   [4] The selection of individuals to serve as evaluators is a matter within
   the discretion of the agency. Accordingly, we will not review allegations
   concerning the qualifications of evaluators or the composition of
   evaluation panels absent a showing of fraud, conflict of interest, or
   actual bias on the part of evaluation officials. CAE USA, Inc.,
   B-293002.2, Jan. 12, 2004, 2004 CPD para. 25 at 10-11, n.8. No such
   showing has been made here.

   [5] In this regard, we note that the awardee states that it found the
   amendment the day it was posted by "carefully monitor[ing] both FedBizOpps
   and the [DOI/NBC EC] website for any postings." Intervenor's Response to
   GAO Questions, Mar. 5, 2007, at 2.

   [6] Even assuming that the agency failed to post the amendment and thereby
   answer the protester's questions, that protest ground is untimely. The
   protester knew as of the closing date for submission of proposals,
   December 8, that the questions, if not already posted, would not be timely
   answered. The protester waited over a month to file this protest ground
   with this office. To be timely, this protest should have been filed prior
   to the submission deadline. 4 C.F.R. sect. 21.2(a)(1); Federal Contracting
   Corp., B-240947.2, Jan. 3, 1991, 91-1 CPD para. 5 at 2-3; REL, B-228155,
   Jan. 13, 1988, 88-1 CPD para. 25 at 5. Nor did the protester claim that it
   was prejudiced in any way, meaning that but for the protester's lack of
   knowledge of the content of the answers the protester would have had a
   substantial chance of receiving the award. A showing of competitive
   prejudice is necessary for any protest. NV Servs., B-284119.2, Feb. 25,
   2000, 2000 CPD para. 64 at 18. Here, the two sources of information that
   were deleted from the requirements were proprietary to the protester.
   There is nothing in the record to suggest that, if the protester had seen
   the amendment before submitting its proposal, the protester would have
   altered its proposal in any way.