TITLE: B-299542.3; B-299542.4, AT&T Corp., November 16, 2007
BNUMBER: B-299542.3; B-299542.4
DATE: November 16, 2007
*****************************************************
B-299542.3; B-299542.4, AT&T Corp., November 16, 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: AT&T Corp.
File: B-299542.3; B-299542.4
Date: November 16, 2007
Thomas C. Papson, Esq., John G. Horan, Esq., Jason A. Carey, Esq., Matthew
T. Crosby, Esq., and Grant B. Rabenn, Esq., McKenna Long & Aldridge LLP,
for the protester.
Thomas L. McGovern III, Esq., Todd R. Overman, Esq., and Ann M. Lichter,
Esq., Hogan & Hartson LLP, for Nortel Government Solutions, Inc., an
intervenor.
Seth Binstock, Esq., Lucinda Davis, Esq., Ellen Rothschild, Esq., and Uri
Ko, Esq., Social Security Administration, for the agency.
Louis A. Chiarella, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Agency's discussions with protester were not meaningful where the
agency found the protester's staffing plan contained significant
weaknesses but failed to sufficiently identify the scope of the agency's
concerns in discussions.
2. Protest challenging the evaluation of awardee's management approach
proposal (specifically, its proposed staffing plan) is sustained where the
agency subsequently reached conclusions that differed from the underlying
evaluation findings, and provided no explanation for the inconsistency.
3. Protest challenging the evaluation of offerors' technical proposals is
denied where the record establishes that the agency's evaluation was
reasonable and consistent with the evaluation criteria.
4. Protest challenging the evaluation of the protester's past performance
is denied where the record establishes that the agency's evaluation was
reasonable and consistent with the stated evaluation criteria.
DECISION
AT&T Corp. protests the award of a contract to Nortel Government
Solutions, Inc. under request for proposals (RFP) No. SSA-RFP-06-1031,
issued by the Social Security Administration (SSA) for the agency's
telephone systems replacement project (TSRP). AT&T argues that the
agency's evaluation of offerors' proposals and subsequent source selection
decision were improper. AT&T also contends that the agency's discussions
with the protester regarding the offeror's proposed staffing plan were not
meaningful.
We sustain the protest in part and deny it in part.
BACKGROUND
The SSA, the federal government agency charged with administering the
social security trust fund, has a staff of over 65,000 employees. In
addition to the agency's headquarters, SSA has a field organization
consisting of 10 regional offices, 6 program service centers, and more
than 1,500 field offices to provide services at the local level. The TSRP
represents SSA's replacement of its current telephone systems with an
enterprise voice over Internet protocol (VoIP) telephone solution, to
support the agency's current and future requirements and the transition to
Internet protocol (IP) telephones. In general terms, the statement of work
here required the contractor to remove SSA's existing telephone system,
and to provide all hardware, software, and services necessary to engineer,
install, and integrate the TSRP solutions with SSA's government-furnished
equipment.[1] RFP amend. 6, SOW sections C.1.1 -- C.1.3.
The RFP, issued on August 10, 2006, contemplated the award of a
fixed-price, indefinite-delivery/indefinite-quantity (ID/IQ) contract for
a base year together with nine 1-year options.[2] The RFP identified five
evaluation factors: technical approach, past performance, key personnel
qualifications, management approach, and price.[3] The solicitation stated
that the four technical/non-price (hereinafter technical) factors were
listed in descending order of importance and, when combined, were more
important than price. Award was to be made to the responsible offeror
whose proposal was determined to be the "best value" to the government,
all factors considered. RFP amend. 3, sect. M.1.
Four offerors, including AT&T and Nortel, submitted proposals by the
November 9 closing date. An agency technical evaluation team (TET)
evaluated offerors' proposals as to the technical factors using an
adjectival rating system (i.e., excellent, good, acceptable, marginal, and
unsatisfactory) that was set forth in the RFP.[4] The TET's evaluation
ratings of offerors' initial proposals were as follows:
+------------------------------------------------------------------------+
| Factor | AT&T | Nortel | Offeror C | Offeror D |
|------------------+------------+------------+------------+--------------|
|Technical Approach| Marginal | Good | Marginal |Unsatisfactory|
|------------------+------------+------------+------------+--------------|
|Past Performance | Good | Good | Good | Acceptable |
|------------------+------------+------------+------------+--------------|
|Key Personnel | Acceptable | Acceptable | Acceptable | Acceptable |
|------------------+------------+------------+------------+--------------|
|Management | Marginal | Acceptable | Marginal | Marginal |
|Approach | | | | |
|------------------+------------+------------+------------+--------------|
|Overall | Marginal | Good | Marginal |Unsatisfactory|
|------------------+------------+------------+------------+--------------|
|Price |$297,094,538|$285,651,653|$296,494,909| $423,313,419 |
+------------------------------------------------------------------------+
Agency Report (AR), Tab 13, Initial Technical Evaluation Report, at 4-46;
Tab 14, Competitive Range Determination, at 16, 23.
The contracting officer subsequently decided that discussions with
offerors were necessary, and established a competitive range consisting of
the three most highly-rated, lowest-priced proposals. Id., Tab 14,
Competitive Range Determination, at 25-26. The agency conducted written
and oral discussions, followed by the offerors' submission of final
proposal revisions (FPR).[5] The TET then evaluated the offerors' FPRs as
well as responses to discussions and clarifications.[6] The TET's final
evaluation ratings of the AT&T and Nortel proposals were as follows:
+---------------------------------------------------------------+
| Factor | AT&T | Nortel |
|--------------------------+-----------------+------------------|
|Technical Approach | Acceptable | Good |
|--------------------------+-----------------+------------------|
|Past Performance | Good | Good |
|--------------------------+-----------------+------------------|
|Key Personnel | Acceptable | Acceptable |
|--------------------------+-----------------+------------------|
|Management Approach | Acceptable | Good |
|--------------------------+-----------------+------------------|
|Overall | Acceptable | Good |
|--------------------------+-----------------+------------------|
|Price | $224,590,779 | $273,788,464 |
+---------------------------------------------------------------+
AR, Tab 33, Final Technical Evaluation Report, at 3, 9.
After receipt of the final price and technical evaluation reports, the
contracting officer then prepared a detailed best value tradeoff
memorandum recommending award to Nortel.[7] Id., Tab 35, Best Value
Tradeoff Memorandum. Additionally, the agency source selection advisory
council (SSAC) briefed the source selection authority and also recommended
contract award to Nortel. Id., Tab 37, SSAC Award Recommendation. On July
27, 2007, after having received the contracting officer's best value
tradeoff memorandum and the SSAC's award recommendation, the source
selection authority determined that Nortel's higher technically-rated,
higher-priced proposal represented the best value to the government. Id.,
Tab 38, Source Selection Decision. This protest followed.
DISCUSSION
AT&T's protest raises numerous issues that can be grouped into five
categories. First, the protester contends that the agency failed to engage
in meaningful discussions with the firm regarding its proposed staffing
plan. Second, the protester argues that the agency's evaluation of
offerors' proposals under the management approach factor (specifically,
staffing plans) was improper. Third, AT&T alleges that the agency's
evaluation of offerors' proposals under the technical approach factor was
improper. Fourth, the protester argues that the agency's evaluation of its
past performance was unreasonable. Lastly, AT&T alleges that SSA's best
value tradeoff determination was flawed and unreasonable.[8] As detailed
below, we conclude that the agency failed to conduct meaningful
discussions with AT&T regarding its proposed staffing plan, and that the
agency's evaluation of Nortel's proposal under the management approach
factor was improper. Although we do not here specifically address all of
AT&T's remaining arguments about the evaluation of proposals, we have
fully considered all of them and conclude that they are without merit.
Lack of Meaningful Discussions
AT&T protests that the agency failed to adequately raise the concerns it
had regarding AT&T's staffing plan during the discussions held with the
offeror. AT&T also contends that the agency's discussions were misleading,
because SSA identified one narrow area of the offeror's staffing plan as
lacking sufficient detail and failed to inform AT&T of the true nature and
breadth of the evaluated weaknesses here. The protester argues that the
lack of meaningful discussions was prejudicial to it, since the perceived
weaknesses in AT&T's staffing plan became a major factor in the agency's
subsequent best value tradeoff determination. Protest, Sept. 20, 2007, at
44-51.
When discussions are conducted, they must at a minimum identify
deficiencies and significant weaknesses in each competitive-range
offeror's proposal. Federal Acquisition Regulation (FAR) sect.
15.306(d)(3); Multimax, Inc., et al., B-298249.6 et al., Oct. 24, 2006,
2006 CPD para. 165 at 12; PAI Corp., B-298349, Aug. 18, 2006, 2006 CPD
para. 124 at 8. Discussions must be "meaningful," that is, sufficiently
detailed so as to lead an offeror into the areas of its proposal requiring
amplification or revision. Smiths Detection, Inc., B-298838, B-298838.2,
Dec. 22, 2006, 2007 CPD para. 5 at 12; Symplicity Corp., B-297060, Nov. 8,
2005, 2005 CPD para. 203 at 8. For example, discussions are not meaningful
where the agency fails to apprise an offeror that its staffing levels are
viewed as unreasonably low. Professional Servs. Group, Inc., B-274289.2,
Dec. 19, 1996, 97-1 CPD para. 54 at 4. Further, an agency may not mislead
an offeror--through the framing of a discussion question or a response to
a question--into responding in a manner that does not address the agency's
concerns, or misinform the offeror concerning a problem with its proposal
or about the government's requirements. Multimax, Inc., et al., supra;
Metro Mach. Corp., B-281872 et al., Apr. 22, 1999, 99-1 CPD para. 101 at
6.
Here, with regard to the management approach factor, the RFP stated as
follows:
The Government will evaluate the Offeror's Management Approach to
determine whether it presents an effective means of control and
oversight of the Offeror's and subcontractors' actions during the
performance of the contract. . . . The Offeror is to provide a narrative
description of its Management Approach, as well as provide the
management related plans and documentation detailed in the Instructions
to Offerors (see Section L.2.2.3.1 -- L.2.2.3.6).
RFP amend. 3, sect. M.1.1.4. Among the various management-related plans
that offerors were instructed to submit was a TSRP program plan, which
included the offeror's proposed staffing plan.[9] Id., amend. 6, sect.
L.2.2.3.1.
AT&T submitted its TSRP staffing plan as part of its initial proposal. AR,
Tab 11, AT&T Initial Proposal, Vol. II, Business Factors, at II-112, Table
II.3.1.1.5-1. The TET evaluated AT&T's initial proposal as marginal under
both the management approach factor and program management subfactor, and
identified various strengths and weaknesses supporting its determinations.
Id., Tab 13, Initial Technical Evaluation Report, at 10-11. This first
version of the agency's initial technical evaluation report makes no
reference to AT&T's staffing plan.
The contracting officer then directed the TET to specifically evaluate
offerors' proposed staffing plans.[10] With regard to AT&T, the TET
determined that the offeror's staffing plan indicated a total of [DELETED]
staff years for the entire TSRP project life cycle. AR, Tab 13, Initial
Technical Evaluation Report, app. 5, Evaluation of Proposed Project
Lifecycle Staffing Plans, at 5. The TET also stated:
We analyzed the man-loading charts in the AT&T technical proposal and
found the proposed levels of effort appear to [be] at minimal levels as
outlined in the following observations:
* Staffing, as presented in the proposal, for the [voice network
operations center] VNOC and Help desk personnel at the Durham
[North Carolina] and [national computer center] NCC locations
could not be determined.[11] A final evaluation of staffing and
workloads is dependent upon a response to this clarification.
The proposed staffing at current levels would be considered
inconsistent with the proposed implementation schedule without
a clear understanding of the support personnel. The risk of
implementing a minimal staffing plan as presented could
jeopardize the success of the project.
Id. (emphasis added).
SSA conducted written discussions with each competitive-range offeror.[12]
The agency's discussions with AT&T consisted of 18 pages, broken down by
evaluation factor, that identified weaknesses,[13] items requiring
clarification or additional detail, and erroneous assumptions. The
discussions identified five specific weaknesses in AT&T's proposal
regarding the offeror's management approach, but did not address AT&T's
staffing plan. Id., Tab 15, Discussions with AT&T, at 8-9. Rather, within
the section of the discussions dealing with AT&T's pricing volume, the
agency addressed AT&T's staffing plan as follows:
1.3.7 AT&T Staffing Analysis
The programmatic methods proposed in the Technical Approach Volume by
AT&T appear sufficient to meet the Government's performance and delivery
requirements for managed services; however, the personnel staffing
charts do not provide sufficient information to determine that the
staffing levels are consistent with AT&T's proposed programmatic
methods. Specifically, staffing levels for VNOC and Help Desk problem
intake personnel at the Durham and NCC locations could not be determined
from the staffing charts. This is an area of risk that must be clarified
and/or addressed.
Id. at 13-14.
AT&T submitted its FPR after the completion of discussions. As part of its
revised proposal, AT&T increased its total TSRP lifecycle staffing from
[DELETED] staff years to [DELETED] staff years,[14] and provided
additional details regarding its staffing plan for VNOC and Help Desk
problem intake personnel at the Durham and NCC locations. Id., Tab 23,
AT&T's FPR, Vol. II, Business Factors, at II-115 to II-116, Table
II.3.1.1.5-a. The TET evaluated AT&T's FPR and, as to the management
approach factor, changed AT&T's evaluation rating from "marginal" to
"acceptable," since the offeror's revised proposal was found to have
"satisfactorily addressed a number of issues that were judged to be
weaknesses in the original proposal." Id., Tab 33, TET Final Evaluation
Report, at 6. With regard to AT&T's revised staffing plan, however, the
TET stated:
As presented in the initial RFP proposal, [staffing levels] for the VNOC
and Help desk personnel at the Durham and NCC locations could not be
determined. The FPR provides a listing of each job description within
the NCC and Durham VNOC.
* * * * *
AT&T has presented a conservative staffing plan for CY-1 staffing
levels. The implementation years (CY-1 through CY-4) show staffing
levels for each quarter and appear to be set at minimal and conservative
levels.[15]
Id., app. II, Evaluation of Proposal Project Lifecycle Staffing Plans, at
5-6. The TET also concluded that:
AT&T has not provided sufficient details on staffing and management in
their final revised proposal for the Agency to definitively determine
that they will be able to supply all resources of the proper
qualifications and skill-mix to address the Agency's requirements
regarding implementation, engineering and service provisioning over the
entire life-cycle of the TSRP. This lack of detail represents potential
performance risks if AT&T is unable to staff appropriately.
Id., Tab 33, Final Technical Evaluation Report, at 9.
After completion of the final technical and price evaluations, the
contracting officer prepared a best value tradeoff memorandum, which the
agency source selection authority relied upon and adopted without
exception in making his award determination. In summarizing the strengths
and weaknesses in AT&T's proposal, the contracting officer stated:
[T]here are some weaknesses present related to staffing levels for
certain task areas that could negatively impact the Offeror's ability to
deliver the TSRP system in accordance with the Government's
specifications and delivery schedule, as well as affect the delivery of
managed services over the life of the contract. AT&T details on staffing
and management in their final revised proposal were such that the Agency
was unable to definitely determine that they will be able to supply all
resources of the proper qualifications and skill-mix to address the
Agency's requirements regarding implementation, engineering and service
provisioning over the entire life-cycle of the TSRP. This . . . is a
weakness that cannot be minimized because it has potential performance
risk impacts that must be considered in the trade-off analysis.
AT&T has presented a conservative staffing plan for CY-1 staffing
levels. The implementation years (CY-1 through CY-4) show staffing
levels for each quarter and appear to be set at minimal and conservative
levels. . . . Upon completion of CY-4 AT&T proposes to staff at very
conservative levels to support ongoing "steady state" activities. With
the full burden of supporting all of the Agency's telephone systems, the
level of effort required could represent a risk for the Operations and
Customer Service staff to adequately support the systems throughout the
steady state years of the program.
Id., Tab 35, Best Value Tradeoff Memorandum, at 6 (emphasis added).
Further, in the comparison of offerors' strengths and weaknesses, the
contracting officer stated:
SSA's non-price evaluators feel that AT&T's overall staffing approach
presents the highest level of potential performance risk of the three
proposals, whereas Nortel's staffing approach provides the least degree
of potential performance risk, both through installation/ implementation
and over the steady state/managed services portion of the project.
For AT&T the non-price evaluations revealed the principal weakness and
area of risk related to life cycle staffing levels being so low as to
potentially threaten the ability of the vendor to successfully deliver
the proposed solution in accordance with the Government's delivery
schedule and to support the TSRP user community across the contract term
in a fully satisfactory manner
Id. at 22 (emphasis added).
In its report to our Office, SSA argues that its actions here were proper
for the following reasons: (1) the weaknesses found by the agency in
AT&T's staffing plan were not significant ones, so no discussions were in
fact required here; (2) the agency nevertheless conducted meaningful
discussions with AT&T regarding its staffing plan; and (3) the agency was
not required to re-open discussions with AT&T simply because AT&T's
staffing plan subsequently became a discriminator for source selection
purposes. AR, Oct. 1, 2007, at 1-5, AR, Nov. 2, 2007, at 1-6.
As discussed in detail below, we conclude that the agency's actions were
improper because: (1) the agency's initial technical evaluation regarded
AT&T's staffing plan as a significant weakness; (2) the agency failed to
conduct meaningful discussions with AT&T regarding this significant
weakness; and (3) the agency's substantial reliance on AT&T's staffing
plan in its best value tradeoff determination clearly demonstrates that
the lack of meaningful discussions here was prejudicial to AT&T.
As set forth above, the record reflects that the TET's initial evaluation
of proposals identified two separate concerns with AT&T's proposed
staffing plan. First, the evaluators found that AT&T's staffing appeared
to be at minimal levels in relation to the RFP's requirements. Second, the
TET also believed that AT&T's entire staffing plan lacked sufficient
detail, as exemplified by the offeror's staffing for the VNOC and
help-desk personnel at the Durham and NCC locations. Moreover, the agency
evaluators considered AT&T's staffing plan to be a significant weakness,
as evidenced by the initial evaluation report. Specifically, in addition
to stating that "[t]he proposed staffing at current levels would be
considered inconsistent with the proposal implementation schedule without
a clear understanding of the support personnel," the TET expressly found
that "[t]he risk of implementing a minimal staffing plan as [AT&T]
presented could jeopardize the success of the project." AR, Tab 13,
Initial Technical Evaluation Report, app. 5, Evaluation of Proposed
Project Lifecycle Staffing Plans, at 7. We think that when an agency
finds, as it did here, that the risk associated with a given aspect of an
offeror's proposal may jeopardize the overall success of the project, this
represents a significant weakness. See FAR sect. 15.001 (a "significant
weakness" in an offeror's proposal is a flaw that appreciably increases
the risk of unsuccessful contract performance). Given this finding
regarding the risk associated with AT&T's staffing plan, the fact that SSA
did not expressly characterize the staffing plan as a significant weakness
is not controlling.[16] See Alliant Techsystems, Inc.; Olin Corp.,
B-260215.4, B-260215.5, Aug. 4, 1995, 95-2 CPD para. 79 at 7-8.
Accordingly, we conclude that the agency was required to conduct
discussions with AT&T regarding its staffing plan.[17]
Further, while the record shows that SSA did conduct discussions with AT&T
regarding its staffing plan, we think that these discussions were not
meaningful. As set forth above, the agency provided AT&T with one
discussion item regarding its staffing plan. This item informed AT&T only
of SSA's concern that the staffing plan lacked sufficient detail ("the
personnel staffing charts do not provide sufficient information to
determine that the staffing levels are consistent with AT&T's proposed
programmatic methods," AR, Tab 15, Discussions with AT&T, at 13-14), and
completely failed to mention the agency's equal, if not greater,
independent concern that AT&T's staffing levels were considered too low.
An agency's belief that an offeror's staffing levels are too low is
materially different from a concern that a staffing plan lacks sufficient
detail; the fact that both involve staffing is not sufficient to conclude
that the agency here provided meaningful notice to AT&T as to the total
scope of its concern. See Andrew M. Slovak, B-253275.2, Nov. 2, 1993, 93-2
CPD para. 263 at 4 (discussions limited to a food menu's item cycle did
not put offeror on notice of the agency's separate concern that the menu
also failed to provide for healthy food items).
Moreover, the discussion item here specified only one particular area of
AT&T's staffing plan as lacking sufficient detail ("[s]pecifically,
staffing levels for VNOC and Help Desk problem intake," id. at 14), when
the agency's real concern was that AT&T's entire staffing plan lacked
sufficient information. See Spherix, Inc., B-294572, B-294572.2, Dec. 1,
2004, 2005 CPD para. 3 at 14 (agency failed to conduct meaningful
discussions when it determined that offeror's entire quality control plan
was a significant weakness, but identified only two specific aspects of
the quality control plan in discussions). In our view, not only was AT&T
inadequately advised of other areas of its staffing plan that lacked
sufficient detail, but the agency's failure to identify the scope of its
concern may have misled the offeror into believing that those areas did
not require further adjustment.[18] Also, unlike other identified
management approach weaknesses, the discussions here did not characterize
AT&T's staffing plan as a significant weakness, or inform the offeror of
the agency's belief that the risk associated with AT&T's minimal staffing
plan could jeopardize the success of the project. See AR, Tab 15, Agency
Discussions with AT&T, at 8, 13-14. Under the circumstances here, we
cannot conclude that AT&T, reviewing the agency's discussions in
conjunction with the material that it had submitted with its proposal,
reasonably could have recognized the total scope of the agency's concerns
regarding both the staffing levels and the lack of detail in AT&T's entire
staffing plan.
The record also reflects that AT&T was prejudiced by the lack of
meaningful discussions regarding its staffing plan. In its final
evaluation report, the TET found that AT&T's staffing levels, while higher
than those proposed originally, were still "minimal and conservative," and
the lack of detail in AT&T's staffing plan (in areas other than VNOC and
Help desk, which AT&T's FPR specifically addressed) represented potential
performance risks if AT&T was unable to staff appropriately. Id., Tab 33,
Final Technical Evaluation Report, at 9, app. II, Evaluation of Proposal
Project Lifecycle Staffing Plans, at 6. The agency's subsequent best value
tradeoff determination then went further, and characterized AT&T's
staffing levels as the offeror's "principal weakness and area of risk,"
since its staffing levels were "so low as to potentially threaten the
ability of the vendor to successfully deliver the proposed solution in
accordance with the Government's delivery schedule and to support the TSRP
user community across the contract term in a fully satisfactory manner."
Id., Tab 35, Best Value Tradeoff Memorandum, at 22. Quite simply, AT&T's
staffing plan, which the agency considered to be a significant weakness
from the time of the initial evaluation, was a material factor in the
agency's source selection determination.[19]
Management Approach Evaluation
AT&T protests the agency's evaluation of proposals under the management
approach factor, specifically, offerors' staffing plans. AT&T alleges that
the agency's final evaluation of its staffing plan was unreasonable
because various findings made by the evaluators were unreasonable and
inadequately explained or documented. The protester also argues that SSA's
evaluation of Nortel's staffing plan was unreasonable. Specifically, AT&T
contends that the TET identified various weaknesses in Nortel's staffing
levels but then ignored its own findings, without explanation, in the
final technical evaluation report. The protester also argues that this
action was prejudicial to it insofar as the agency's subsequent best value
tradeoff determination viewed Nortel's staffing levels to be an
unqualified strength, notwithstanding the various weaknesses identified by
the TET. Protest, Sept. 20, 2007, at 57. We need not address the agency's
evaluation of AT&T's staffing plan in light of our determination that
SSA's discussions with AT&T were not meaningful. However, as detailed
below, we find the agency's evaluation of Nortel's staffing plan was not
reasonable.
In reviewing an agency's evaluation, we will not reevaluate offerors'
proposals; instead, we will examine the agency's evaluation to ensure that
it was reasonable and consistent with the solicitation's stated evaluation
criteria and procurement statutes and regulations. Urban-Meridian Joint
Venture, B-287168, B-287168.2, May 7, 2001, 2001 CPD para. 91 at 2. An
offeror's mere disagreement with the agency's evaluation is not sufficient
to render the evaluation reasonable. Ben-Mar Enters., Inc., B-295781, Apr.
7, 2005, 2005 CPD para. 68 at 7.
As detailed above, the agency evaluated offerors' proposed staffing plans
as part of its management approach factor evaluation. The TET determined
that Nortel's revised staffing plan indicated a total of [DELETED] staff
years for the entire project life cycle, down from an initial count of
[DELETED] staff years. AR, Tab 33, Final Technical Evaluation Report, app.
II, TET Evaluation of Proposed Project Lifecycle Staffing Plans, at 7.
Also, the TET found that Nortel's staffing plan was comprehensive and gave
considerable detail as to how the offeror would perform all contract
requirements.
However, the TET also found that Nortel's Program Management, Operations,
and Customer Relations staffing levels changed little throughout the
entire TSRP program lifecycle (i.e., implementation years 1-4, and
managed-services years 5-10). In this regard, the evaluators stated that
"[w]hile considered disproportionate to the number of sites being
supported in the initial deployment start-up [period], the value of having
a full staff to experience lessons learned, corrective actions, policies
and procedures should be considered `risk insurance.'" Id. Additionally,
the TET found that Nortel's implementation staffing levels continued well
beyond the deployment schedule without explanation, and deemed "Nortel's
continuation of staffing managers, trainers, field engineers, and other
personnel associated with systems implementation beyond the deployment
schedule" to be an apparent "ineffective and uneconomical use of
resources."[20] Id. at 7-8.
Notwithstanding its own determination that Nortel's staffing levels did
not provide value to the government in all instances, the TET's final
evaluation report stated:
Overall, the staffing and management documents in Nortel's FPR indicate
that they will supply sufficient resources of the proper qualifications
and skill-mix to address [the] Agency's requirements regarding
implementation, engineering and service provisioning over the entire
life-cycle of the TSRP. The staffing levels and skill-mix are considered
to be strengths in the Nortel proposal that represent significant
benefits to the Agency.
Id., Tab 33, Final Technical Evaluation Report, at 20.
The best value tradeoff memorandum then adopted essentially verbatim the
language in the TET's final evaluation report regarding Nortel's staffing
levels. The memorandum also characterized Nortel's overall staffing levels
as one of the areas in which Nortel's proposal offered a significant
technical advantage over AT&T's proposal. Id., Tab 33, Final Technical
Evaluation Report, at 20, 23. The memorandum did not address the TET's
finding that Nortel's continued staffing of managers, trainers, field
engineers, and other personnel associated with the TSRP system's
implementation beyond the deployment schedule was an ineffective and
uneconomical use of resources.
AT&T argues that both the TET's final technical evaluation report and the
best value tradeoff memorandum are inconsistent with the evaluators'
findings regarding Nortel's staffing levels. The protester argues that
while the evaluators found that Nortel had proposed excessive staffing
levels throughout the entire contract period--too many management and
operations personnel in the implementation period and too many
implementation personnel in the steady state period--the agency ignored
these findings and instead, without explanation, characterized Nortel's
staffing levels as an unconditional strength. Protest, Sept. 20, 2007, at
27, 57-58.
The agency does not dispute the TET's determination that Nortel's final
proposal contained "some overstaffing," nor deny that the best value
tradeoff memorandum considered Nortel's higher staffing levels to be an
unqualified strength. Rather, SSA argues that under the RFP's best value
evaluation scheme here, the agency set forth its preference for a low risk
technical solution and thus, could properly conclude that a proposal that
reduced risk by exceeding the staffing requirements, even when there is a
price premium, will better satisfy the agency's needs. AR, Oct. 1, 2007,
at 13.
While source selection officials may reasonably disagree with the
evaluation ratings and results of lower-level evaluators, Verify, Inc.,
B-244401.2, Jan. 24, 1992, 92-1 CPD para. 107 at 6-8, they are nonetheless
bound by the fundamental requirement that their independent judgments be
reasonable, consistent with the stated evaluation factors, and adequately
documented. AIU N. Am., Inc., B-283743.2, Feb. 16, 2000, 2000 CPD para. 39
at 8-9 (protest sustained because selection official did not document the
basis for concluding that proposals were technically equal, after the
evaluation panel concluded that one proposal was superior to the other).
As shown above, SSA's best value tradeoff determination reached
conclusions regarding Nortel's staffing levels that were inconsistent with
the underlying evaluation findings. Further, the best value tradeoff
memorandum provides no explanation for its conclusion that Nortel's higher
staffing levels represented an unqualified strength of significant benefit
to the agency, in contrast to the evaluators' determination that certain
aspects of Nortel's staffing plan appeared to be an ineffective and
uneconomical use of resources. In fact, the best value tradeoff memorandum
does not indicate that the contracting officer, who prepared the
memorandum, considered or was even aware of the TET's finding of no
apparent benefit in Nortel's decision to continue implementation staffing
levels beyond the deployment schedule. The record also reflects that this
conclusion regarding the benefits of Nortel's staffing levels was material
to the agency's source selection determination. We recognize that an
agency may properly conclude that a proposal with higher staffing levels
may reduce the offeror's risk of performance. The fact that a proposal has
higher staffing levels does not automatically mean reduced risk, however,
and there has been no showing or explanation offered here as to how
Nortel's continuation of its implementation staffing personnel during the
managed services years would reduce the risk of performance here. In sum,
we cannot find SSA's evaluation of Nortel's management approach to be
reasonable when the agency reached a conclusion regarding the offeror's
staffing plan that was inconsistent with the underlying evaluation
findings and provided no explanation for this inconsistency, and then
relied on this conclusion as a material part of its best value tradeoff
determination.
Technical Approach Evaluation
AT&T protests the agency's evaluation of offerors' proposals with regard
to the technical approach factor. Although we do not specifically address
all of AT&T's arguments here, we have fully considered all of them and
find that they provide no basis upon which to sustain the protest.
For example, AT&T argues that SSA employed an unstated evaluation
criterion when evaluating offerors' proposals. Specifically, the protester
contends that the agency improperly credited Nortel with being the
manufacturer of the TSRP equipment it proposed to install, and downgraded
AT&T for not being an equipment manufacturer, even though the RFP did not
identify manufacturer status as an evaluation criterion. Protest, Aug. 18,
2007, at 16-17. The agency argues that it properly credited Nortel with
being the manufacturer of its proposed equipment because this specific
factor was reasonably related to the RFP's stated evaluation criteria.[21]
AR, Sept. 10, 2007, at 104-05. We agree with the agency.
With regard to the technical approach factor, the RFP stated:
The Government will evaluate the degree to which the technical approach
of the Offeror demonstrates the ability to provide technically compliant
hardware, software, and services solutions to fulfill the requirements
specified in the . . . SOW. This evaluation will assess the proposed
solution's compliance with the stated requirements, conformity and
interoperability with SSA's existing network, and potential risk
factors. The Government will evaluate the Technical Approach . . . to
determine the stated Approach's likelihood for successfully providing
products and services associated with the requirements stated in Section
C of the solicitation in a manner consistent with the Government's
delivery schedule.[22]
RFP amend 3, sect. M.1.1.1.
In its evaluation of Nortel's FPR under the technical approach factor, the
TET found that Nortel's proposed use of a uniform telephone
platform/common configuration provided benefits due to systems
interoperability, configuration management, and standardization of
support, maintenance, and equipment training. AR, Tab 33, Final Technical
Evaluation Report, at 16. In connection therewith, the evaluators also
found that Nortel's status as the product manufacturer and designer of its
proposed equipment could result in benefits to the agency due to
logistical efficiencies, design product compatibility and management
effectiveness. Id. The contracting officer subsequently concluded that
Nortel's status as manufacturer of its proposed system hardware was a
comparative advantage over AT&T's proposal. Id., Tab 35, Best Value
Tradeoff Memorandum, at 8, 18.
Although agencies are required to identify in a solicitation all major
evaluation factors, they are not required to identify all areas of each
factor which might be taken into account in an evaluation, provided that
the unidentified areas are reasonably related to or encompassed by the
stated factors. Chenega Technical Prods., LLC, B-295451.5, June 22, 2005,
2005 CPD para. 23 at 5; STEM Int'l, Inc., B-295471, Jan. 24, 2005, 2005
CPD para. 19 at 7.
Based on our review, we agree with the agency that consideration of
Nortel's status as manufacturer of its proposed equipment as part of its
evaluation of proposals under the technical approach factor was consistent
with the stated evaluation criteria. As set forth above, the RFP
established that the agency would consider offerors' proposed technical
solutions and the potential risks associated with an offeror's proposed
technical approach. The TET then determined that Nortel's status as
product manufacturer and designer of its proposed equipment could reduce
the risk with Nortel's proposed solution by means of logistical
efficiencies, design product compatibility, and management effectiveness.
We think that consideration of the fact that Nortel was the manufacturer
of the equipment it proposed to install was reasonably related to
determining the risk associated with the offeror's proposed technical
approach.[23] Accordingly, we find that the agency did not apply an
unstated evaluation criterion in its evaluation.
Past Performance Evaluation
AT&T protests the agency's evaluation of offerors' past performance.
Again, although we do not here specifically address all of AT&T's
arguments, we have fully considered each of them and find that they
provide no basis upon which to sustain the protest.
For example, AT&T argues that SSA's decision to assign the protester a
past performance rating of "good" was inconsistent with the agency's own
underlying evaluation findings. The protester contends that all of its
past performance references were determined by the agency to be "highly
similar" to the work being performed here, and all the reference responses
expressed a high level of satisfaction with AT&T's prior performance. AT&T
argues that, in light thereof, the agency's decision to rate its past
performance as "good" was inconsistent with the RFP's stated evaluation
criteria. The protester also contends that, regardless of the ultimate
evaluation rating assigned to its proposal, the agency should have found
AT&T's past performance to be superior to that of Nortel.
Where a solicitation requires the evaluation of offerors' past
performance, we will examine an agency's evaluation to ensure that it was
reasonable and consistent with the solicitation's evaluation criteria and
procurement statutes and regulations. The MIL Corp., B-297508, B-297508.2,
Jan. 26, 2006, 2006 CPD para. 34 at 10. 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 para. 222 at 3. A
protester's mere disagreement with the agency's judgment does not
establish that an evaluation was improper. Id. As detailed below, our
review of the record leads us to conclude that the agency's past
performance evaluation was unobjectionable.
The RFP required offerors to provide three past performance references
from prior and/or current contracts that were similar in scope and
complexity to the work being performed here.[24] RFP amend. 6, sect.
L.2.2.1. The solicitation also stated:
The evaluation of past performance will consist of a qualitative
assessment of the Offeror's demonstrated corporate experience and
success, using the adjectival ratings listed below, in the performance
of previous and/or ongoing contracts of similar size, scope, and
complexity to the requirement of this solicitation. Evaluation of past
performance will be based upon consideration of all relevant facts and
circumstances. The Government will evaluate the relevance of the cited
past performance reference information to the requirements stated in
this solicitation as well as the quality of the Offeror's past
performance and determine each Offeror's probability of success on the
proposed contract based upon this record of past performance. . . . For
cited references, the Government will make only 2 attempts to contact a
relevant reference for obtaining past performance information.
RFP amend. 3, sect. M.1.1.2.
Relevant to the protest here, the solicitation also set forth the
following past performance adjectival ratings and definitions:
+------------------------------------------------------------------------+
|Excellent |Past performance is highly similar and relevant to the stated|
| |requirements in size, scope, and complexity. Past performance|
| |record is entirely favorable and there are no unfavorable |
| |comments from references. The past performance record |
| |possesses exceptional strengths. |
|----------+-------------------------------------------------------------|
|Good |Past performance is similar and relevant to the stated |
| |requirements in size, scope, and complexity. Past performance|
| |record is more favorable than unfavorable. Unfavorable |
| |references, if any, are minor and are more than offset by |
| |favorable references. |
|----------+-------------------------------------------------------------|
|Acceptable|Past performance is somewhat similar and relevant to the |
| |stated requirements in size, scope, and complexity. Has |
| |favorable and unfavorable references. Unfavorable references |
| |are generally offset by favorable references. |
+------------------------------------------------------------------------+
Id.
AT&T's proposal included three past performance references for prior
telephone system replacement projects: (1) Bank of America; (2) the
Department of the Treasury; and (3) the Ford Motor Company. AR, Tab 4,
AT&T Proposal, Vol. II, Business Factors, at II-12 to II-21. The agency
contacted AT&T's references and received responses from Bank of America
and the Treasury Department; the agency made multiple attempts to contact
AT&T's third reference, Ford, without success. Id., Tab 13, Initial
Technical Evaluation Report, at 6. Nortel's proposal also included three
references regarding its own past performance: (1) American Airlines; (2)
the Defense Information Systems Agency (DISA); and (3) the Department of
Homeland Security (DHS). Id., Tab 12, Nortel's Proposal, Vol. II, Business
Factors, at 30-47. The agency contacted and received responses from all
Nortel references. Id., Tab 13, Initial Technical Evaluation Report, at
25.
The TET then evaluated the offerors' past performance references, both
individually and overall, for relevance and quality as follows:[25]
+------------------------------------------------------------------------+
|AT&T's References | Relevance | Quality | Rating |
|----------------------+-----------------+--------------------+----------|
|Bank of America | Highly Similar | High Satisfaction | Good |
|----------------------+-----------------+--------------------+----------|
|Treasury Department | Highly Similar | High Satisfaction | Good |
|----------------------+-----------------+--------------------+----------|
|Ford | Highly Similar | No Response | Neutral |
|----------------------+-----------------+--------------------+----------|
|Overall | | | Good |
+------------------------------------------------------------------------+
+------------------------------------------------------------------------+
|Nortel's References | Relevance | Quality | Rating |
|----------------------+-------------------+--------------------+--------|
|American Airlines | Highly Similar | High Satisfaction | Good |
|----------------------+-------------------+--------------------+--------|
|DISA | Highly Similar | High Satisfaction | Good |
|----------------------+-------------------+--------------------+--------|
|DHS | Somewhat Similar | High Satisfaction | Good |
|----------------------+-------------------+--------------------+--------|
|Overall | | | Good |
+------------------------------------------------------------------------+
Id., Tab 13, Initial Technical Evaluation Report, at 6-9, 25-30. The TET
concluded that both AT&T and Nortel had provided strong references, the
projects were similar in size and complexity to TSRP, the feedback
consistently indicated that the offerors had done a good job on prior
projects, and no significant weaknesses had been identified. Importantly,
the evaluators also found no exceptional strengths in either offeror's
past performance. Id.
AT&T argues that, based on the agency's findings that all three of its
references were highly similar, and the fact that the two references that
responded expressed high levels of satisfaction with the firm's prior
performance (the protester agrees that the third reference's failure to
respond rendered that reference "neutral"), it should have received
"excellent" ratings for its first two references as well as an "excellent"
rating overall. Protest, Sept. 20, 2007, at 65-66. The agency argues that
its evaluation of AT&T's past performance was reasonable and consistent
with the stated evaluation criteria--the TET found no exceptional
strengths that warranted an "excellent" rating--and that its treatment of
offerors was fair, insofar as the TET applied the same standards when
rating Nortel's past performance. AR, Sept. 10, 2007, at 105-08. We agree.
As a preliminary matter, we note that the agency's past performance rating
definitions contained multiple and independent characteristics, and thus,
it was possible for an offeror's past performance to meet some but not all
aspects of a certain rating. For example, if an offeror's past performance
was determined to be highly relevant and entirely favorable, but was found
not to possess any exceptional strengths, then it did not fall squarely
into any of the established adjectival rating definitions.
We find the agency's evaluation of AT&T's past performance to be
reasonable and consistent with the stated evaluation criteria. As set
forth above, the TET found all three of AT&T's references to be highly
relevant, and the two references that responded did express high levels of
satisfaction with AT&T's performance. However, the evaluators also found
no exceptional strengths with AT&T's past performance, a determination
that AT&T does not dispute. Since the "excellent" rating was, by
definition, reserved for past performance that was found to be highly
relevant, entirely favorable, and which possessed exceptional strengths,
we find the agency's decision to rate AT&T's past performance as "good" to
be reasonable.
Moreover, we agree with the agency that the TET was even-handed in its
evaluation of the offerors' past performance. As detailed above, the
evaluators found that Nortel, like AT&T, had two references that were
found to be both highly relevant and which had high levels of customer
satisfaction. As with AT&T, Nortel also received "good" ratings for these
references as well as a "good" rating overall. Quite simply, the record
shows that SSA applied the same standard to the evaluation of both
offerors' past performance.
AT&T also argues that the agency should have found AT&T's past performance
to be superior to that of Nortel, irrespective of the ultimate ratings
assigned to the offerors' proposals. The protester argues that because it
had more references than Nortel that were deemed to be highly similar, the
agency's decision to view the offerors' past performance as equal was
unreasonable. Comments, Sept. 20, 2007, at 66. We disagree. As detailed
above, the record reflects that the agency properly took into account the
relevance of each contract reference as part of its evaluation of
offerors' past performance. For example, the TET recognized that Nortel's
DHS reference was "somewhat similar" to the work being performed here,
while its remaining references were found to be "highly similar."[26]
There is simply no requirement that offerors have an equal number of
relevant references in order to receive equal ratings. Paragon Sys., Inc.,
B-299548.2, Sept. 10, 2007, 2007 CPD para. 178 at 11.
Source Selection Decision
AT&T argues that SSA's price/technical tradeoff decision was flawed and
unreasonable. In light of our conclusion that the agency's evaluation of
proposals was unreasonable and that a new evaluation and source selection
decision are necessary, we need not address this issue.
RECOMMENDATION
We conclude that the agency failed to conduct meaningful discussions with
AT&T regarding its proposed staffing plan, which the evaluators regarded
as a significant weakness, and that the agency's evaluation of Nortel's
proposal was unreasonable because the best value tradeoff determination
without explanation reached conclusions regarding the awardee's staffing
plan that were inconsistent with the evaluators' underlying findings.
We recommend that the agency reopen discussions with the offerors
consistent with our conclusions above, request and evaluate revised
proposals, and then rely on that revised evaluation in making a new source
selection determination. If, upon reevaluation of proposals, AT&T is
determined to offer the best value to the government, SSA should terminate
Nortel's contract for the convenience of the government and make award to
AT&T. We also recommend that AT&T be reimbursed the costs of filing and
pursuing the protest, including reasonable attorneys' fees, limited to the
costs relating to the grounds on which we sustain the protest. 4 C.F.R.
sect. 21.8(d)(1) (2007). AT&T should submit its certified claim for costs,
detailing the time expended and costs incurred, directly to the
contracting agency within 60 days after receipt of this decision. 4 C.F.R.
sect. 21.8(f)(1).
The protest is sustained in part and denied in part.
Gary L. Kepplinger
General Counsel
------------------------
[1] The statement of work (SOW) also included a performance schedule
comprised generally of an implementation period during which the
contractor would engineer, furnish, and install the TSRP system and a
"managed services" period (also referred to as the "steady state" period)
in which the contractor would manage, administer, and maintain the VoIP
solution. SOW sect. C.1.3.
[2] The contract line item numbers (CLIN) within each performance period,
also fixed-price in nature, consisted of specific products and/or SOW
tasks (e.g., site implementation of medium-sized field office).
[3] The RFP did not expressly identify evaluation subfactors. However, the
solicitation did instruct offerors that their technical approach
submissions were to be structured as follows: 1) TSRP solution
architecture and configuration; 2) TSRP solution features; 3) TSRP
solution operations and management capability; and 4) TSRP system
supplementary features. RFP amend. 6, sect. L.2.1. Similarly, with regard
to the management approach factor, offerors were instructed that their
proposals were to be organized according to, and address, the following
areas: 1) program management requirements; 2) quality and test
requirements; and 3) training requirements. The solicitation also set
forth tables of requirements, cross-referenced to sections of the SOW,
that offerors' proposals were to explicitly address. Id., sect. L.2.3.
[4] The solicitation also included narrative descriptions for each of the
adjectival ratings under each evaluation factor, as well as for the
overall rating of offerors' technical proposals. RFP amend. 3, sect. M.1.1
- M.1.1.4.
[5] Prior to the submission of FPRs, SSA also amended the solicitation and
changed the TSRP implementation period from 3 years (calendar year (CY)-1
through CY-3) to 4 years (CY-1 through CY-4). RFP amend. 9, sect. C.1.3.
The agency also sought technical and price clarifications from offerors
after the submission of FPRs.
[6] The proposal of the third offeror included in the competitive range is
not relevant to the protest here and will not be discussed further.
[7] The contracting officer found that Nortel's proposal was technically
superior to AT&T's under both the technical approach and management
approach factors. Under the management approach factor, the contracting
officer cited, among a number of identified proposal strengths, Nortel's
staffing plan (both its staffing levels and labor mix). By contrast, the
contracting officer stated that the agency's evaluation had revealed that
AT&T's staffing plan represented the offeror's principal weakness and area
of risk insofar as its proposed staffing levels were so low as to
potentially threaten the ability of the offeror to successfully perform.
Id., Tab 35, Best Value Tradeoff Memorandum, at 22-26.
[8] AT&T's original protest also raised two additional issues: (1) that
SSA's evaluation of offerors' proposals under the key personnel factor was
unreasonable; and (2) that the agency's evaluation of offerors' proposals
under the management approach factor in areas other than staffing plans
was improper. AT&T subsequently withdrew these protest issues. Comments,
Sept. 20, 2007, at 3-4.
[9] The staffing plan submitted by an offeror as part of its proposal was
a notional one. That is, the contract to be awarded under the RFP here
requires the contractor to perform identifiable tasks for fixed prices.
Thus, the offerors were not required to commit to perform the work with
the level or mix of labor actually identified in their staffing plans, and
the agency was not entitled to actually receive the level or mix of labor
that offerors identified in their staffing plans. However, the agency
evaluated offerors' staffing plans to assess the understanding and risk
associated with each offeror's proposal under the management approach
factor.
[10] In a conference call held by GAO with all parties, the agency stated
that after completing the initial evaluation of proposals but before
making the competitive range determination, the contracting officer
requested that the TET take a more detailed look at offerors' staffing
plans. This resulted in the development of the "TET Evaluation of Proposed
Project Lifecycle Staffing Plans," which was appended to the initial
technical evaluation report.
[11] The statement of work required the contractor to establish a
multi-site VNOC--with one site located at SSA's NCC in Baltimore,
Maryland, and the second site at the agency's alternate data center in
Durham, North Carolina--that would perform TSRP network operations and
help desk functions. SOW sect. C.6.4.1.
[12] The agency subsequently held oral discussions with each offeror as
well. The record does not reflect that the agency's oral discussions with
AT&T regarding the offeror's staffing plan went beyond the written
discussion items. AR, Tab 20, Record of Negotiation with AT&T.
[13] The agency's discussion items also generally characterized the
identified weaknesses (e.g., "significant weakness," "major weakness").
Id., Tab 15, Discussions with AT&T, at 1-9.
[14] The protester contends that that increase in its staffing was
primarily related to the change in the TSRP implementation period from 3
years to 4 years. Comments, Sept. 20, 2007, at 20.
[15] The TET also identified three new weaknesses in AT&T's revised
staffing plan: 1) the staffing levels for field engineers and technicians
were inconsistent (i.e., they increased and decreased quarterly) during
the implementation years; 2) AT&T was using a subcontracted staffing
approach to accomplish training in the field, using a dispersed network of
field training personnel; and 3) AT&T's operations and customer support
staffing levels during the "steady state" years represented a performance
risk because the levels were the same as those proposed for the
implementation years. Id., Tab 33, Final Technical Evaluation Report, app.
II, Evaluation of Proposal Project Lifecycle Staffing Plans, at 6.
[16] The agency argues that because AT&T's initial proposal received a
management approach rating of "marginal," and the rating here was defined
as an approach having weaknesses that are not offset by strengths, AT&T's
staffing plan could not, by definition, have been a "significant
weakness." AR, Nov. 2, 2007, at 5. We note that, following this logic, the
other management approach weaknesses that SSA expressly identified in its
discussions with AT&T as significant weaknesses would not in fact be so.
In any event, an agency's assigned evaluation rating is also not
controlling of whether the offeror's proposal contains significant
weaknesses that must be identified if discussions are conducted.
[17] AT&T argues that the "new" weaknesses identified by the TET in its
revised staffing plan were also apparent in its initial staffing plan, and
should also have been raised in discussions. Protest, Sept. 20, 2007, at
22, 48-49. Where, after discussions are completed, an agency identifies
significant weaknesses or deficiencies pertaining to the proposal as it
was prior to discussions, the agency is required to reopen discussions in
order to raise the concerns with the offeror. Al Long Ford, B-297807, Apr.
12, 2006, 2006 CPD para. 67 at 8. Here, the record reflects that the first
and third additional weaknesses identified in AT&T's revised staffing
plan--the inconsistent field engineer and technician staffing levels
during the implementation years, and the operations and customer support
staffing levels during the steady state years being the same levels as
during the implementation years--should have been apparent to the agency
prior to discussions. Nevertheless, the record does not establish that SSA
considered these weaknesses to be significant ones. See AR, Tab 33,
Revised Technical Evaluation Report, at 8-9, Tab 35, Best Value Tradeoff
Memorandum, at 6. Also, the record shows that the remaining new weakness
identified--AT&T's use of a subcontracted staffing approach to accomplish
field training--was one that the offeror introduced in its
post-discussions FPR. Accordingly, we have no basis to conclude on this
record that SSA had to raise any of these additional weaknesses in
discussions with AT&T.
[18] We note that AT&T's FPR addressed the specific area of its staffing
plan where the agency identified a lack of detail, but not its staffing
plan as a whole. See AR, Tab 33, Final Technical Evaluation Report, at 9,
app. II, Evaluation of Proposal Project Lifecycle Staffing Plans, at 5.
[19] We recognize, as the agency argues, that where a weakness is minor in
nature and does not render a proposal unacceptable, but "ultimately
becomes a discriminator for source selection purposes among closely ranked
proposals," the failure by an agency to raise the matter in discussions is
unobjectionable. PWC Logistics Servs., Inc., B-299820, B-299820.3, Aug.
14, 2007, 2007 CPD para. 162 at 7. Here, however, as discussed above, the
agency's initial evaluation of proposals found AT&T's staffing plan was a
significant weakness when it determined that the risk associated with
AT&T's minimal staffing plan could jeopardize the success of the project.
Because the resulting discussions regarding AT&T's staffing plan were not
meaningful, the offeror was not provided an adequate opportunity to
respond to the agency's concerns.
[20] The TET did not, however, quantify what portion of Nortel's proposed
staffing levels it believed to be of no apparent value. Id. at 7-8.
[21] The agency also argues that, contrary to the protester's assertions,
AT&T's proposal did not receive a lower technical approach evaluation
rating because it was not a manufacturer to its proposed equipment, AR,
Sept. 10, 2007, at 105, and the record fails to show that AT&T was in fact
downgraded here.
[22] The RFP also set forth tables of requirements, cross-referenced to
sections of the SOW, that offerors' proposals were to explicitly address,
including systems interoperability, configuration management,
standardization, logistical efficiencies, and management effectiveness.
RFP amend. 6, sect. L.2.1.
[23] To the extent that AT&T believes that Nortel's status as product
manufacturer is not of value to the agency, see Comments, Sept. 20, 2007,
at 69-70, we find this amounts to mere disagreement with the agency's
evaluation, which does not render it unreasonable. See Birdwell Bros.
Painting & Refinishing, B-285035, July 5, 2000, 2000 CPD para. 129 at 5.
[24] The requirement to provide three references also extended to each
subcontractor that the offeror planned to utilize. RFP amend. 6, sect.
L.2.2.1.
[25] The TET also evaluated the references of AT&T's and Nortel's proposed
subcontractors as part of its evaluation of offerors' past performance.
AR, Tab 13, Initial Technical Evaluation Report, at 6-9, 25-30. Neither
the protester nor the agency contend that SSA's evaluation of the
subcontractors' past performance is relevant to the protest issue here.
See Comments, Sept. 20, 2007, at 64-66; AR, Sept. 10, 2007, at 105-08.
[26] The record also reflects that, in accordance with the terms of the
solicitation, SSA's past performance evaluations were also based on a
determination of the quality of offerors' references; Nortel had a greater
number of references than AT&T that were found to have a high level of
satisfaction.