TITLE: B-299383, Able Business Technologies, Inc., April 19, 2007
BNUMBER: B-299383
DATE: April 19, 2007
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B-299383, Able Business Technologies, Inc., April 19, 2007

   Decision

   Matter of: Able Business Technologies, Inc.

   File: B-299383

   Date: April 19, 2007

   Daniel R. Gilliam for the protester.

   Scott W. Barber, Esq., and Michael D. Harbart, Esq., National Aeronautics
   and Space Administration, for the agency.

   Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
   of the General Counsel, GAO, participated in the preparation of the
   decision.

   DIGEST

   1. Protest is denied where record demonstrates reasonable basis for agency
   findings pertaining to weaknesses in protester's proposal.

   2. Agency was not required to equalize the competition to compensate for
   competitive advantage that one offeror enjoyed as a result of (1) its
   greater knowledge regarding government facility's infrastructure, and (2)
   its own existing facilities.

   DECISION

   Able Business Technologies, Inc. protests the award of a contract to Bell
   South Telecommunications, Inc. under request for proposals (RFP) No.
   NNS060162866R, issued by the John C. Stennis Space Center (SSC), National
   Aeronautics and Space Administration (NASA), for telecommunications
   service to the SCC via a route from the north. Able argues that the
   evaluation of its technical proposal and the evaluation of Bell South's
   past performance were unreasonable. The protester also asserts that Bell
   South had an unfair advantage over other firms in the competition.

   We deny the protest.

   BACKGROUND

   The agency explains that at present, the SSC's telecommunication pathway
   runs along the Gulf Cost, where it is vulnerable to hurricane damage. Most
   notably, in 2005, the SSC suffered a total loss of communications services
   as a result of Hurricane Katrina. NASA has determined that the best way to
   lower the risk of future communications pathway failures is to provide an
   alternate fiber pathway leading north from the SSC to a metropolitan
   service area where multiple inter-exchange carrier points of presence
   (POP) are available, such as Jackson, Mississippi.

   NASA personnel originally believed Bell South to be the only source
   capable of satisfying the agency's requirement and thus did not intend to
   conduct a competitive acquisition. After receiving statements of interest
   from additional firms in response to a notice posted on the Federal
   Business Opportunities website, the contracting officer determined that a
   basis for competition did in fact exist, however. On September 11, 2006,
   the agency issued the subject solicitation.

   The RFP contemplated the award of a 5-year, fixed-price,
   indefinite-quantity contract for the installation and servicing of an
   OC-192 circuit and various channels. The solicitation explained that NASA
   required an OC-192 access service to a northern POP from the demarcation
   point in Building 1201 at the SCC, and that this access service was to
   include channelization at each end to allow the provisioning of multiple
   T1/DS1, DS3, OC3, OC12, and OC48 circuits in various combinations. RFP at
   25. Offerors were instructed that their technical proposals should depict
   the routing of their communications pathway and describe the method of
   routing for each segment (e.g., aerial, direct bury, microwave, or other);
   describe inherent redundancies in the route; describe any approvals
   needed; identify the address of the POP and identify all carriers
   available at the POP; describe emergency facility support; specify a
   timeline for completion of the OC-192 and each circuit; describe the
   procedures for handling trouble calls; and describe the offeror's
   experience with similar projects.

   The RFP provided for award to the offeror whose proposal represented the
   best value to the government. In the determination of best value, price
   was to be worth 50 percent, technical merit 35 percent, and past
   performance 15 percent. Factors to be considered in the evaluation of
   technical merit were the extent to which the offeror's approach exhibited
   understanding of the requirement, was acceptable within industry
   standards, was likely to fulfill the objective, would be timely delivered,
   and reduced the risk of communication disruption.

   Three offerors submitted proposals prior to the October 2, 2006 closing
   date. After evaluation, the contracting officer selected for award the
   proposal of Bell South, which had been assigned a normalized technical
   rating of 35 percent and a past performance rating of 15 percent by the
   evaluators, and which had an evaluated price of $3,331,228. (The
   "normalization" of technical scores involved assigning the maximum
   possible score to the highest-rated proposal (which was Bell South's);
   other proposals were then assigned ratings based on a comparison of their
   point scores to Bell South's score.) Able's proposal received a normalized
   technical rating of 21 percent and a past performance rating of 15
   percent, and its evaluated price was $3,575,500.[1]

   DISCUSSION

   At Able's debriefing, the agency identified four strengths, five
   weaknesses, and one performance risk in the protester's technical
   proposal. Able argues that the agency's findings of weakness and
   performance risk were unjustified.

   At the outset, we note that several of Able's objections to the technical
   evaluation of its proposal were not raised in a timely manner. In this
   connection, Able supplemented its January 17, 2007 protest, which was
   timely filed, with a January 23 submission, which was filed more than 10
   days after the protester's January 10 debriefing and thus was not timely.
   See Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(2) (2006). Except in
   limited circumstances not present here, we consider only timely
   protests.[2] 4 C.F.R. sect. 21.5(e). Accordingly, while we will consider
   the arguments raised in Able's January 23 submission to the extent that
   they are encompassed within the arguments raised in its January 17 filing,
   see L-3 Communications Corp., Ocean Sys. Div., B-281784.3, B-281784.4,
   Apr. 26, 1999, 99-1 CPD para. 81 at 9 n.12, we will not consider the
   arguments raised in the January 23 submission that are unrelated to the
   initially advanced grounds of protest.[3]

   Able argues that NASA unreasonably identified the following as a weakness
   in its technical proposal:

     Although [Able] identified a number of field crews to support network
     outages, these crews appeared to be spread from Baton Rouge to Panama
     City with no priority given to the NBR [northbound route] for repairs.
     This could be an issue for NASA where [Defense Information Systems
     Agency] and critical [Department of Defense] customers take precedence
     in needed repairs.

   Able Debriefing at 5. The protester contends that the agency evaluators
   unfairly assumed that because it is a small business (with correspondingly
   fewer field crews), it will be less capable of supporting its proposed
   solution. Able maintains that the assumption that it will be incapable of
   performing is inconsistent with its historical performance. The protester
   notes in this regard that unlike Bell South, it was able to keep its
   network operational in the aftermath of Hurricanes Katrina and Rita. Able
   also points out that while Bell South may have more crews, it also has
   more customers entitled to the highest priority in the restoration of
   service after an outage.

   In reviewing protests against allegedly improper evaluations, it is not
   our role to reevaluate proposals. We will only consider whether the
   agency's evaluation was reasonable and in accord with the evaluation
   criteria listed in the solicitation and applicable procurement laws and
   regulations. AHNTECH, Inc., B-295973, May 11, 2005, 2005 CPD para. 89 at
   3.

   We think that Able's contentions miss the main thrust of the agency
   argument, which is not that the protester offered too few crews in support
   of its proposed solution, but rather that the protester failed to furnish
   assurances in its proposal that repair of the NBR would be a priority for
   these crews in the event of a widespread outage. That is, while Able's
   proposal established that the protester's subcontractor, Southern Light,
   had a number of support technicians available in the general vicinity of
   the SSC, the proposal did not indicate that in the event of a disruptive
   natural disaster (such as a hurricane), restoration of service along the
   NBR would be a top priority for these technicians, who would also be
   addressing the needs of other customers.[4] Since the solicitation
   instructed offerors that one of the factors that would be considered in
   the evaluation of proposals' technical merit was the extent to which an
   offeror's approach reduced the risk of communication disruption, and the
   availability of an offeror's support crews to perform immediate repairs in
   the event of an outage clearly has a bearing on the extent of
   communication disruption, we think that it was both reasonable and
   consistent with the RFP's evaluation criteria for the evaluators to find
   Able's failure to provide for priority repair of the NBR to be a weakness
   in its technical approach.

   Able also takes issue with the agency's identification of the following
   performance risk in its proposal:

     [Able's] subcontractor, Southern Light, has all the expertise and
     capabilities to be used in providing the NBR. If the affiliation between
     [Able] and SL dissolves, there would be a risk that any follow on
     contractor support to [Able] for the NBR would not have the same
     expertise, arrangements, tariffs, etc. Also [Able] appears to have one
     employee and if anything would happen to that one employee, then
     disposition of the contract would be questionable.

   Able Debriefing at 5. The protester argues that it is discriminatory
   toward small businesses for the agency to view reliance upon
   subcontractors as a performance risk given that small businesses are more
   likely to rely upon the services of subcontractors than large businesses.
   Able further argues that it does not have only one employee. The protester
   contends that NASA "gleaned this assumption" from an outdated Dun &
   Bradstreet report that it furnished as part of its proposal. Protester's
   Submission, Jan. 23, 2007, at 9. Able asserts that it has expanded its
   operation since the report was created in late 2005, and that it now has
   "more than one" employee on its payroll. Id.

   First, regarding the protester's complaint that the evaluators incorrectly
   concluded that it had only one employee, the agency relied upon
   information submitted by Able in its proposal in reaching this conclusion.
   An agency may reasonably rely as accurate upon information provided by an
   offeror in its proposal in performing its evaluation, especially where it
   has no reason to question that information. See Apex Marine Ship Mgmt.
   Co., LLC; American V-Ships Marine, Ltd., B-278276.25 et al., Sept. 25,
   2000, 2000 CPD para. 164 at 12-13.

   Turning then to the protester's argument concerning reliance upon its
   subcontractor, we think that the evaluators could reasonably regard Able's
   reliance upon Southern Light as a performance risk for precisely the
   reasons identified in the above excerpt, i.e., that in the event of a
   breakdown in the relationship between Able and Southern Light, there was
   no assurance that Able would be able to locate an equally capable
   subcontractor to perform the services performed by Southern Light. We note
   in this connection that it was not the mere existence of a
   contractor/subcontractor relationship that resulted in the finding of
   performance risk here; it was the fact that Able was almost totally
   reliant upon its sole proposed subcontractor for performance, which
   magnified the risk to performance in the event of a breakdown of the
   relationship, and the fact that Southern Light possessed qualifications
   and capabilities that could not easily be duplicated.

   Next, Able argues that Bell South received an unreasonably high rating for
   past performance. The protester requests that "an unbiased
   individual/organization" (presumably our Office) evaluate and rate Bell
   South's performance. Protester's Comments, Feb. 17, 2007, at 2.

   It is not the function of our Office to perform de novo evaluations of
   offerors' past performance. Our role is confined to reviewing the
   evaluation performed by the contracting agency to ensure that it was
   reasonable and consistent with the solicitation and applicable statutes
   and regulations. See Kathpal Tech., Inc., B-291637.2, Apr. 10, 2003, 2003
   CPD para. 69 at 5. Here, the agency relied on favorable responses that it
   received from Bell South's references in assigning the awardee the maximum
   possible score for past performance. While information pertaining to the
   evaluation of Bell South's past performance was not furnished to the
   protester because it is source selection sensitive, we have examined it in
   camera and find that it provides a reasonable basis for the rating
   assigned.[5]

   Finally, Able argues that Bell South enjoyed an unfair advantage over its
   competitors in responding to the RFP here in that (1) Bell South had
   greater knowledge of the SSC's existing conduit/duct infrastructure due to
   its prior work at the facility, and (2) Bell South already had a fiber
   pathway in place that it could use in its solution, which enabled Bell
   South to propose a less extensive, and thus less costly, approach than its
   competitors.

   First, regarding the protester's complaint that Bell South possessed
   greater knowledge than its competitors regarding the SSC's existing
   infrastructure due to its prior work there, a particular offeror may
   possess unique advantages and capabilities due to its prior experience
   under a government contract or otherwise, and the government is not
   required to attempt to equalize competition to compensate for it, unless
   (unlike in this case) there is evidence of preferential treatment or other
   improper action. Holiday Inn--Laurel, B-290364, June 10, 2002, 2002 CPD
   para. 96 at 5. The existence of this advantage, by itself, does not
   constitute preferential treatment by the agency, nor does it otherwise
   represent an unfair competitive advantage. Id.

   Moreover, the agency did in fact take steps to mitigate any advantage that
   Bell South might have had by virtue of its greater knowledge of the
   existing infrastructure. Specifically, the agency permitted the protester
   to view a map of the infrastructure located in the contract specialist's
   office. (The agency explains that Able was not permitted to take the map
   with it due to security issues.) In addition, the agency maintains that at
   the site visit, it informed prospective offerors that they could perform
   physical inspections of the existing conduit, but that Able never took
   advantage of the opportunity.

   With regard to the protester's complaint that Bell South was able to offer
   a less extensive, less costly solution than other offerors because it
   could use a fiber pathway that it already had in place, again the rule is
   that the government is not required to equalize the competition to
   compensate for a competitive advantage that one particular offeror may
   enjoy unless that advantage resulted from preferential treatment of that
   offeror or other unfair action by the government. Halifax Eng'g, Inc.,
   B-219178.2, Sept. 30, 1985, 85-2 CPD para. 559 at 3; Universal Alarm
   Servs., B-214022, Mar. 5, 1984, 84-1 CPD para. 267 at 2. Here, any
   advantage that Bell South may have enjoyed due to its existing fiber
   network was not the result of preference or unfair action by the
   government.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] Because they are not relevant to the protest issues raised, the third
   offeror's ratings are not discussed.

   [2] Our regulations do permit us to consider an untimely protest "for good
   cause shown" or where we determine that a protest raises issues
   significant to the protest system. 4 C.F.R. sect. 21.2(c). Neither
   circumstance applies here.

   [3] Arguments raised by the protester in its January 23 submission that we
   dismiss as untimely are as follows: (1) the agency unreasonably identified
   as a weakness in the protester's proposal Able's failure to describe its
   entire route and method of routing; (2) the agency unreasonably identified
   as a weakness in Able's proposal the protester's failure to identify
   redundancies or emergency back-up facilities; (3) the agency unreasonably
   identified as a weakness in Able's proposal the protester's failure to
   describe any preventive maintenance in support of the circuit; and (4) the
   agency incorrectly interpreted Able's proposed timeline for
   implementation.

   [4] While the protester points out that Federal Communications Commission
   regulations require that certain categories of customer receive priority
   in the restoration of service, it is unclear from its comments whether
   service to NASA along the NBR falls within the highest priority category.
   In addition, it is unclear how many other Southern Light customers fall
   within the highest priority category.

   [5] The protester proceeded with its protest pro se and therefore did not
   have an attorney representing it who could obtain access, pursuant to the
   terms of a protective order, to nonpublic information submitted by the
   agency in response to the protest. Accordingly, our discussion of the
   agency's evaluation of the awardee's proposal is necessarily general in
   nature to avoid reference to nonpublic information. Our conclusions,
   however, are based on our review of the entire record, including the
   nonpublic information.