TITLE: B-299433; B-299433.2, Weidlinger Associates, Inc., May 7, 2007
BNUMBER: B-299433; B-299433.2
DATE: May 7, 2007
**************************************************************
B-299433; B-299433.2, Weidlinger Associates, Inc., May 7, 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: Weidlinger Associates, Inc.

   File: B-299433; B-299433.2

   Date: May 7, 2007

   Daniel B. Abrahams, Esq., Howard A. Wolf-Rodda, Esq., and Pamela A.
   Reynolds, Esq., Epstein Becker & Green PC, for the protester.

   Pamela J. Mazza, Esq., Philip M. Dearborn, Esq., and Isaias Alba, IV,
   Esq., Piliero Mazza, PLLC, for Merrick & Company, an intervenor.

   Blane B. Lewis, Esq., Defense Threat Reduction Agency, 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. Agency properly evaluated awardee's technical/management approach as
   "exceptional," and protester's as "acceptable," where awardee's proposed
   approach offered evaluated strengths that exceeded the solicitation
   requirements and protester's proposed approach met, but did not exceed,
   the requirements.

   2. Agency properly considered all of the past performance information
   submitted by protester, including information submitted prior to
   solicitation amendment that revised and provided additional detail
   regarding past performance evaluation criteria.

   3. Agency properly concluded that protester's proposal did not offer the
   lowest evaluated cost/price where solicitation provided that the proposed
   costs for two sample tasks would constitute the evaluated cost/price, and
   protester's proposal for the sample tasks offered higher costs than the
   awardee's proposal.

   DECISION

   Weidlinger Associates, Inc. (WAI) protests the Defense Threat Reduction
   Agency's (DTRA) award of a contract to Merrick & Company for engineering
   services pursuant to request for proposals (RFP) No. HDTRA2-06-R-0001. WAI
   protests that the agency erred in evaluating various aspects of WAI's
   proposal.

   We deny the protest.

   BACKGROUND

   In March 2006, the agency issued this solicitation, seeking professional
   engineering services to support DTRA's testing activities.[1] Agency
   Report (AR), vol. 1-6, RFP, at 286.[2] The solicitation contemplates award
   of an indefinite-delivery/indefinite-quantity contract with a 5-year base
   period and a 5-year option period, with a maximum value of $10 million
   over 10 years. Section M of the solicitation provided for award on a "best
   value" basis and established the following three evaluation factors:
   mission capability, past performance, and cost/price. Id. at 279, 280.

   With regard to mission capability, the solicitation initially established
   the following subfactors: personnel qualifications, technical/management
   approach, sample task 1,[3] sample task 2,[4] and sample task 3.[5] Id. at
   280. Of relevance to this protest, the solicitation provided that offerors
   "shall identify their team structure, team member roles, responsibilities,
   and experience for the area of work they will perform," and that, under
   the technical/management approach subfactor, the agency would assess
   whether an offeror's proposal offered, among other things, an "[e]ffective
   management organization that defines responsibilities, staffing and
   percentage of work of prime and key subcontractors, and prime field and
   home offices" and a "[c]omplete and clear description of the methods and
   means planned to accomplish effort under each of the required work areas."
   AR, vol. 1-6, RFP, at 267, 282.

   With regard to past performance, the solicitation directed offerors to
   submit past performance references, but also provided, "Offerors are
   cautioned that the Government will use . . . data obtained from other
   sources in the evaluation of past and present performance."[6] Id. at 269.

   With regard to cost/price, RFP section L, as amended, advised offerors
   that "sample task 1 and 3 cost proposals will be used for the cost
   evaluation," and RFP section M, as amended, provided: "The proposed total
   costs for recurring requirements (Sample Task 3, Work Area 2[[7]]) and
   Sample Task 1 will constitute the evaluated cost." AR, vol. 1-7j, RFP
   amend. No. 10, at 329. Accordingly, each offeror was required to propose
   appropriate labor categories, along with applicable labor rates, to
   perform the sample tasks.[8] AR, vol. 1-6, RFP, at 270-71. In evaluating
   an offeror's proposed approach to performance of the sample tasks, the
   solicitation further provided that the agency would assess whether the
   offeror had proposed a "cost effective comprehensive plan outlining the
   technical and management approach, labor mix, schedule, and personnel
   (that meet the appropriate skill levels) for the sample task[s] in
   accordance with the SOW." Id. at 282.

   On May 8, Merrick and WAI timely submitted proposals, which were
   thereafter evaluated by the agency.[9] In evaluating WAI's initial
   proposal, the agency expressed concern regarding the extent to which WAI's
   proposal relied on subcontractors for contract performance.[10] More
   specifically, the agency noted in its contemporaneous evaluation
   documentation that, while WAI's substantial reliance on multiple
   subcontractors could be beneficial in providing a broader range of
   capabilities, it also constituted a weakness in that it could "complicate
   reporting, allegiance and chain of command," as well as "increase
   management costs." AR, vol. 3-10a, Preliminary Price Competition
   Memorandum, at 380. The agency's evaluation documentation further
   reflected specific concern that WAI's proposal offered a subcontractor
   employee to fill the key position of in-house design technician, required
   by sample task 3. The agency noted that reliance on a subcontractor to
   fill this position could create "problems with technical direction." Id.

   Following its evaluation of initial proposals, the agency conducted
   discussions with the offerors. In conducting discussions with WAI, the
   agency questioned WAI regarding the concerns identified above.
   Specifically, in one written evaluation notice (EN), the agency asked WAI
   to: "Please explain your plan to control the large number of
   subcontractors to avoid complications in reporting, allegiance, chain of
   command, and potentially increased management costs." AR, vol. 3-11c, at
   214. In another EN, the agency asked WAI to: "Please explain why the
   in-house technician is sourced from a subcontractor rather than the prime,
   and subsequently how you intend to avoid complicating issues since the
   government does not have privity with the subcontractor while the in-house
   technician directly work[s] on-site with DTRA personnel." Id. at 213.

   Following discussions, the agency requested final proposal revisions
   (FPR), which Merrick and WAI submitted on December 1. In its FPR, WAI
   provided additional information regarding its proposed reliance on
   subcontractors,[11] but did not alter its technical/management approach in
   any significant way.

   Thereafter, the agency evaluated Merricks and WAI's FPRs under the mission
   capability factor as follows:[12]

   +------------------------------------------------------------------------+
   |                                |      Merrick      |        WAI        |
   |--------------------------------+-------------------+-------------------|
   |Personnel Qualifications        |    Exceptional    |    Exceptional    |
   |--------------------------------+-------------------+-------------------|
   |Technical/Mgmt. Approach        |    Exceptional    |    Acceptable     |
   |--------------------------------+-------------------+-------------------|
   |Sample Task 1                   |    Acceptable     |    Acceptable     |
   |--------------------------------+-------------------+-------------------|
   |Sample Task 3                   |    Acceptable     |    Acceptable     |
   +------------------------------------------------------------------------+

   AR, vol. 4-13, Source Selection Decision, at 2.

   As shown, both offerors received the same ratings for each mission
   capability subfactor, except technical/management approach--under which
   WAI's proposal was rated "acceptable," and Merrick's proposal was rated
   "exceptional." In rating WAI's FPR "acceptable" under this subfactor, the
   agency repeated its earlier concerns that WAI's "large number of
   subcontractors with large percentage of work may complicate reporting,
   allegiance and chain of command, and increase management costs," and again
   noted that WAI's continued reliance on a subcontractor to provide the
   required in-house design technician could create "problems with technical
   direction." Id.; AR, vol. 4-13, Source Selection Evaluation Board
   Briefing, at 19. In rating Merrick's proposal "exceptional" under this
   evaluation subfactor, the agency identified various strengths in Merrick's
   technical/management approach that the agency viewed as exceeding the
   solicitation requirements, summarizing those strengths as follows:

     [deleted].

   AR, vol. 4-13, Source Selection Decision, at 2.

   With regard to past performance, both Merrick's and WAI's FPRs were rated
   "very good/significant confidence,"[13] and the agency concluded that
   "little doubt exists that [either] offeror will successfully perform the
   required effort." Id. at 3.

   With regard to cost/price, the offerors' evaluated costs for sample tasks
   1 and 3, which the solicitation expressly provided "will constitute the
   evaluated cost," were as follows:

   +------------------------------------------------------------------------+
   |                           |       Merrick       |         WAI          |
   |---------------------------+---------------------+----------------------|
   |Sample Task 1              |      [deleted]      |      [deleted]       |
   |---------------------------+---------------------+----------------------|
   |Sample Task 3              |      [deleted]      |      [deleted]       |
   |---------------------------+---------------------+----------------------|
   |Total                      |      [deleted]      |      [deleted]       |
   +------------------------------------------------------------------------+

   Id.

   In addition to reviewing each offeror's proposed costs to perform the
   sample tasks, the agency also reviewed the labor categories and rates the
   offerors proposed to provide during the base and option periods, noting
   that WAI's proposed labor rates were generally higher than Merrick's
   proposed rates.[14] Id. at 3-4. The agency also performed an analysis of
   WAI's proposed labor mix, comparing it to an internal government estimate,
   finding that WAI had proposed three times more senior staff than the
   agency estimated to be appropriate, and concluding that WAI's proposed
   labor mix was "disproportionately skewed toward Senior Staff positions (as
   well as subcontracted work) which likely accounts for their higher cost
   per labor hour." AR, vol. 4-14, at 43-44.

   Based on the evaluation discussed above, the source selection official
   concluded, "I find the benefits associated with the Merrick proposal
   represent the best value to the Government," and selected Merrick's
   proposal for contract award. AR, vol. 4-13, Source Selection Decision, at
   4. WAI was thereafter notified of Merrick's selection; this protest
   followed.

   DISCUSSION

   WAI first protests that it was unreasonable for the agency to evaluate
   WAI's proposal as merely "acceptable" under the technical/management
   approach subfactor, complaining that the agency "ignored" WAI's responses
   to issues raised by the agency during discussions. WAI further asserts
   that its FPR "provided a detailed explanation of its approach to project
   and organization management" and that it had "clarified the relationship
   between the parties" with regard to the in-house design technician, but
   complains that the agency's evaluation "failed to account for or even
   react to WAI's proposal revisions" and "applied ill-defined evaluation
   criteria." Finally, WAI asserts that the "acceptable" rating "cannot
   reasonably be reconciled with elements of [WAI's] proposal." Protest at
   20-21. WAI's arguments are without merit.

   In reviewing a protester's challenge to an agency's evaluation of
   proposals, our Office will not reevaluate proposals, but rather, will
   examine the record to determine whether the agency's judgment was
   reasonable and in accord with the RFP criteria. Abt Assocs., Inc.,
   B-237060.2, Feb. 26, 1990, 90-1 CPD para. 223 at 4. A protester's mere
   disagreement with the agency's judgment does not establish that an
   evaluation was unreasonable. UNICCO Gov't Servs., Inc., B-277658, Nov. 7,
   1997, 97-2 CPD para. 134 at 7.

   As noted above, the solicitation specifically advised offerors that their
   proposals should "identify their team structure, team member roles,
   responsibilities and experience for the area of work they will perform,"
   and that the agency would assess whether an offeror's proposal offered an
   "effective management organization that defines responsibilities, staffing
   and percentage of work of prime and key subcontractors," and provided a
   "clear description of the methods and means planned to accomplish effort
   under each of the required work areas." AR, vol. 1-6, RFP, at 267, 282.
   Here, the agency concluded that WAI's substantial reliance on multiple
   subcontractors to perform the contract requirements, including the key
   position of in-house design technician, met, but did not exceed, the
   solicitation requirements. Further, the agency specifically advised WAI of
   its concerns during discussions and, although WAI responses discussed
   those concerns, WAI did not substantially alter its approach, nor did it
   provide detailed information to assist the agency in determining the
   extent to which WAI would, itself, perform the contract requirements or
   the extent to which the requirements would be performed by a
   subcontractor. Accordingly, the agency concluded that WAI's proposal met,
   but did not exceed the solicitation requirements. [15]

   In contrast, as noted above, the agency identified various strengths in
   Merrick's technical/management approach that exceeded the solicitation
   requirements. WAI's protest has not identified any error in the agency's
   evaluation of Merrick's evaluated strengths, but WAI argues that various
   aspects of its own proposal should also have been evaluated as strengths
   exceeding the solicitation requirements; the agency disagrees. We have
   reviewed all of WAI's arguments in this regard, and conclude that they
   represent mere disagreement with the agency's judgment. Based on our
   review of the record we find nothing unreasonable in the agency's
   evaluation of either WAI's or Merrick's proposal with regard to the
   technical/management approach subfactor.

   Next, WAI asserts that the agency's evaluation of past performance was
   flawed, complaining that the agency "improperly amended the evaluation
   criteria for the past performance factor after receipt of the initial
   proposals," and then improperly considered the past performance
   information submitted by WAI both before and after the solicitation
   amendment. Protester's Comments, Mar. 16, 2007, at 19-20. WAI asserts that
   the agency should have considered only the past performance information
   WAI submitted with its FPR, and that consideration of all the information
   WAI submitted unreasonably "diluted the overall evaluation score."[16] Id.
   at 20. WAI concludes that, if the agency had properly limited its review
   to only the past performance information submitted with its FPR, WAI's
   proposal would have received a higher past performance rating than
   Merrick's proposal.

   Where a solicitation contemplates the evaluation of offerors' past
   performance, the agency has the discretion to determine the scope of the
   performance history to be considered, provided all proposals are evaluated
   on the same basis and the evaluation is consistent with the terms of the
   RFP. USATREX Int'l., Inc., B-275592, B-275592.2, Mar. 6, 1997, 98-1 CPD
   para. 99 at 3. In this regard, an agency is not generally precluded from
   considering any relevant past performance information, regardless of its
   source, see, e.g., NVT Techs., Inc., B-297524, B-297524.2, Feb. 2, 2006,
   2006 CPD para. 36 at 5, and, in fact, in some circumstances has an
   affirmative obligation to consider past performance information that is
   "close at hand." See, e.g., International Bus. Sys., Inc., Mar. 3, 1997,
   97-1 CPD para.114 at 5; G. Marine Diesel, B-232619.3, Aug. 3, 1989, 89-2
   CPD para. 101 at 5-6. Regarding the relative merits of offerors' past
   performance information, this matter is generally within the broad
   discretion of the contracting agency, and our Office will not substitute
   our judgment for that of the agency. See, e.g., Clean Harbors Envtl.
   Servs., Inc., B-296176.2, Dec. 9, 2005, 2005 CPD 222 at 3. A protester's
   mere disagreement with the agency's judgment does not establish that an
   evaluation was improper. Id.

   Here, the record shows that the offerors provided past performance
   information with their initial proposals and that, thereafter, the
   solicitation was amended to provide more detail regarding the relative
   relevance of previously performed tasks and subtasks to the solicitation
   requirements.[17] With its FPR, WAI provided additional past performance
   information that had not been submitted with its initial proposal, and
   asserts that the agency was precluded from considering anything other than
   that information. We disagree.

   As discussed above, an agency is not generally precluded from considering
   any relevant past performance information. As also noted above, WAI does
   not argue that the past performance information it initially submitted was
   not relevant, as defined by the terms of the solicitation[18]--only that
   it was less relevant than the past performance information submitted with
   its FPR.[19] WAI maintains that, because its past performance for most of
   its "highly relevant" contracts was rated "exceptional," the agency was
   required to rate WAI's overall past performance as "exceptional." We
   disagree. As noted above, the agency properly considered all of the past
   performance information WAI submitted for multiple contracts, some of
   which indicated WAI's past performance was "exceptional" and some of which
   indicated WAI's past performance was "very good." We decline to apply what
   might be described as a "mathematical calculation" to the agency's
   discretionary past performance assessment and, on the record here, we find
   no basis to conclude that WAI's rating of "very good" was
   unreasonable.[20] See, e.g., University Research Co., LLC, B-294358.6,
   B-294358.7, Apr. 20, 2005, 2005 CPD para. 83 at 16 (protester's argument
   that its most highly relevant past performance ratings were improperly
   diluted when averaged with other relevant performance ratings was denied;
   GAO held there is no per se requirement than an agency weight differently
   the ratings given offerors based on an assessment of the relative
   relevance of the offerors' prior contracts).

   Finally, WAI protests that its proposal should have been evaluated as
   offering the lowest evaluated cost/price due to the fact that its proposal
   for the base period and option period reflected fewer total hours than
   that of Merrick's, and accordingly, reflected a lower total cost for the
   base and option periods.[21] WAI's protest regarding the agency's
   cost/price evaluation ignores the express language of the solicitation.

   As noted above, solicitation amendment No. 10 expressly amended RFP
   section L to advise offerors that "sample task 1 and 3 will be used for
   the cost evaluation," and amended RFP section M to state: "The proposed
   total costs for recurring requirements (Sample Task 3, Work Area 2) and
   Sample Task 1 will constitute the evaluated cost." AR, vol. 1-7j, RFP
   amend. No. 10, at 329. As discussed above, WAI's proposed cost/price for
   sample tasks 1 and 3 was [deleted], while Merrick's proposed cost/price
   for the sample tasks was [deleted]. Accordingly, pursuant to the express
   provisions of the solicitation, Merrick's proposal was properly evaluated
   as offering the lowest evaluated cost/price.

   The protest is denied.[22]

   Gary L. Kepplinger
   General Counsel

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

   [1] DTRA is responsible for fielding and conducting effects testing of
   high explosives, phenomenology, electromagnetic, chemical, biological, and
   thermal radiation.

   [2] The agency report responding to WAI's protest employed a pagination
   system frequently referred to as "Bates stamping"; this decision's
   citations to specific page number refer to the "Bates stamped" numbers.

   [3] Pursuant to sample task 1, offerors were required to "prepare a 35%
   tunnel design package . . . to include preliminary construction drawings,
   specifications, construction cost estimates, material take-offs, and
   design support calculations." Id. at 290.

   [4] Sample task 2 was subsequently deleted from the solicitation's
   requirements, and the tasks contemplated thereunder were acquired under a
   separate contract with WAI.

   [5] Pursuant to sample task 3, the solicitation directed offerors to
   "prepare a cost proposal to provide a single full-time engineering design
   technician to DTRA for up to 5 years," identified this as a "key
   position," and stated that the design technician would be "co-located" and
   work "side by side" with DTRA personnel. AR, vol. 1-6, RFP, at 295.

   [6] In June 2006, the solicitation was amended to provide more detailed
   criteria regarding evaluation of offerors' past performance. AR, vol.
   1-7h, RFP amend. No. 8, at 325-26.

   [7] The solicitation identified five work areas: (1) engineering design;
   (2) design technician, construction drawing and drafting; (3) survey; (4)
   construction inspection; and (5) materials properties determination and
   testing. Id. at 298-88. As noted above, sample task 3 required a "single
   full-time engineering design technician"--that is, work area 2.

   [8] Offerors were also required to propose labor categories and applicable
   labor rates that would be generally available to perform other, as yet
   undefinitized, task orders during the 5-year base period and the 5-year
   option period. AR, vol. 1-6, RFP, at 270-71.

   [9] A third offeror submitted a proposal after the closing date; that
   proposal was not evaluated by the agency and is not relevant to this
   protest.

   [10] WAI proposed to use [deleted] subcontractors, and the agency's
   evaluators expressed concern that the subcontractors would be performing a
   majority of the contract effort. AR, vol. 3-10a, Technical Evaluation, at
   360, 362.

   [11] For example, WAI's FPR represented that, together, WAI and one of its
   subcontractors "will perform over [deleted]% of the work on this
   contract," but did not further identify the amount of work to be performed
   by WAI or the amount to be performed by the subcontractor.

   [12] The solicitation advised offerors that adjectival ratings of
   "exceptional," "acceptable," "marginal," and "unacceptable" would be
   assigned. AR, vol. 1-6, RFP, at 280-81. Of relevance here, the
   solicitation defined an "exceptional" rating as applicable to a proposal
   that "exceeds specified requirements in a way beneficial to the Government
   by providing strengths with significant merit," and an "acceptable" rating
   as applicable to a proposal that "meets specified requirements necessary
   for acceptable contract performance, and any identified weaknesses are not
   significant and are readily correctable." Id.

   [13] The solicitation provided that adjectival ratings of
   "exceptional/high confidence," "very good/significant confidence,"
   "satisfactory/confidence," "neutral/unknown confidence," "marginal/little
   confidence," or "unsatisfactory/no confidence" would be assigned under the
   past performance factor. AR, vol. 1-6, RFP at 283.

   [14] In comparing the two offerors' rates, the agency calculated an
   average hourly rate for the two offeors. WAI's average hourly rate was
   calculated as [deleted]; Merricks' average hourly rate was calculated as
   [deleted]. Id. at 4.

   [15] WAI argues that the agency was precluded from considering whether the
   prime or a subcontractor would perform the various contract requirements
   due to a solicitation provision regarding teaming arrangements that
   indicated an offeror and subcontractor would be considered as a whole
   where teaming agreements had been executed. AR, vol. 1-6, RFP, at 280. We
   do not view the solicitation's provisions regarding teaming arrangements
   as effectively eliminating the RFP requirements, noted above, that
   required the offerors to disclose their team members' respective roles,
   nor to preclude the agency from concluding that WAI's substantial reliance
   on subcontractors constituted a management approach that met, but did not
   exceed, the solicitation requirements.

   [16] WAI does not argue that the past performance information it initially
   submitted was not relevant, as defined by the terms of the
   solicitation--only that it was less relevant than the past performance
   information submitted with its FPR.

   [17] For example, the amended solicitation stated that: "Engineering
   design includes general and experiment specific design work for test bed
   and test facilities," and, similarly, "Design Tech, Construction Drawing
   and Drafting includes initiation, development, production, and
   distribution of construction drawings." AR, vol. 1-7j, RFP amend. No. 8,
   at 326.

   [18] The solicitation provided definitions with regard to past performance
   that was considered "highly relevant," "relevant," "somewhat relevant,"
   and "not relevant." AR, vol. 1-6, RFP, at 283-84; AR, vol. 1-7h, RFP
   amend. No. 18, at 325-26.

   [19] The record shows that the agency considered both offerors' prior
   performance on multiple contracts that were designated "highly relevant,"
   "relevant," or "somewhat relevant," and that their prior performance of
   these contracts were nearly all rated either "very good" or "exceptional."
   AR, vol. 4-13, Source Selection Decision, at 3.

   [20] Following receipt of the agency report, WAI identified a minor
   clerical error in the source selection decision document with regard to
   the number of contracts the agency considered to be "highly relevant,"
   "relevant," or "somewhat relevant." The record supports the agency's
   explanation that this error did not exist in the briefing documents
   presented to the source selection official on which the decision was
   based. In any event, based on our review of the entire record, we do not
   view the error as material.

   [21] The solicitation advised offerors that the maximum value of the
   contract would be $5 million for the base period and $5 million for the
   option period, and asked that offerors submit a "Labor Mix Table" for each
   period, in which the offeror identified a total number of hours offered
   per labor category, along with associated labor rates. WAI's Labor Mix
   Tables reflected fewer total hours, but generally higher rates, than
   Merrick's proposal.

   [22] In its protest submissions, WAI presented various additional
   arguments, including assertions that the agency failed to conduct
   meaningful discussions, the agency evaluators were biased, the deletion of
   sample task 2 from the solicitation requirements was improper, and the
   agency was required to submit a size protest to the Small Business
   Administration challenging Merrick's size status. We have reviewed all of
   WAI's assertions and find no basis for sustaining its protest.