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