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
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[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.