TITLE: B-299702; B-299702.2, Data Management Services Joint Venture, July 24, 2007
BNUMBER: B-299702; B-299702.2
DATE: July 24, 2007
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B-299702; B-299702.2, Data Management Services Joint Venture, July 24, 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: Data Management Services Joint Venture
File: B-299702; B-299702.2
Date: July 24, 2007
Joseph G. Billings, Esq., for the protester.
Douglas L. Patin, Esq., and Jeremy Becker-Welts, Esq., Bradley Arant Rose
& White LLP, for Alon, Inc., an intervenor.
Gary L. Brooks, Esq., and Stephani L. Abramson, Esq., National Archives &
Records Administration, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
of the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
1. Where, for purposes of evaluation under corporate experience subfactor,
request for quotations (RFQ) defined relevant work as work similar in
scope, magnitude, and nature to solicited effort, it was not consistent
with the terms of the RFQ for the evaluators to consider work of lesser
magnitude relevant; protest is denied, however, where agency had
reasonable basis for viewing efforts not meeting solicitation definition
as relevant, and there is no evidence that protester was prejudiced by the
agency's relaxation of its criteria for determining relevance.
2. Since, to demonstrate an impermissible "bait and switch," a protester
must show not simply that a firm represented that it would rely on
specific personnel whom it did not intend to furnish, but also that the
misrepresentation had a material impact on the evaluation, allegation that
successful vendor intends to substitute equally (or better) qualified
personnel for the individuals specified in its quotation is legally
insufficient since such a substitution could not materially affect the
evaluation results.
3. Protest arguing that successful vendor's Federal Supply Schedule
contract does not contain all required labor categories is denied where
agency reasonably determined that vendor had proposed equivalent labor
categories.
DECISION
Data Management Services Joint Venture (DMSJV) protests the National
Archives & Records Administration's (NARA) issuance of a delivery order to
Alon, Inc. under that firm's General Services Administration (GSA) Federal
Supply Schedule (FSS) contract No. GS-35F-0325R.[1] The order was issued
pursuant to request for quotations (RFQ) No. NAMA-07-Q-0004 for support
staff for NARA's Electronic Records Archives (ERA) Program Management
Office (PMO). The protester argues that the agency erred in its evaluation
of quotations.
We deny the protest.
BACKGROUND
The RFQ, which was issued on November 3, 2006, sought quotations from
firms holding FSS Information Technology Schedule 70 contracts. The
solicitation contemplated the issuance of an order on a time-and-materials
basis for a base period of 12 months, with four option periods of 12
months each. The RFQ included descriptions of, and requested pricing for,
64 labor categories; 13 of the 64 labor categories were designated as core
positions.[2] Vendors were required to submit detailed information
regarding the education and experience of the individuals whom they were
proposing for the 13 core positions.
The RFQ provided for issuance of an order to the vendor whose quotation
was determined to represent the best value to the government, with
quotations to be evaluated on the basis of the following factors:
achievement of socio-economic objectives; personnel; understanding of the
work statement; past performance; and price. The understanding of the work
statement factor, which was to be addressed through an oral presentation,
consisted of two equally weighted subfactors: staff management and
corporate experience. The solicitation explained that in the determination
of best value, the achievement of socio-economic objectives factor would
be significantly more important than the personnel factor, the personnel
factor significantly more important than the understanding of the work
statement factor, and the understanding of the work statement factor and
the past performance factor of equal weight. The solicitation further
explained that the technical evaluation factors, when combined, were
significantly more important than price.
Five vendors submitted quotations by the December 11, 2006 due date. The
agency evaluators rated the quotations under the four technical evaluation
factors as follows:
+------------------------------------------------------------------------+
|Offeror |Socio-Economic|Personnel |Understanding of Work |Past |
| |Objectives | |Statement |Performance|
|---------+--------------+----------+------------------------+-----------|
|Alon |[deleted] |[deleted] |[deleted] |[deleted] |
|---------+--------------+----------+------------------------+-----------|
|DMSJV |[deleted] |[deleted] |[deleted] |[deleted] |
|---------+--------------+----------+------------------------+-----------|
|Offeror A|Acceptable |Acceptable|Outstanding |Acceptable |
|---------+--------------+----------+------------------------+-----------|
|Offeror B|Acceptable |Acceptable|Marginal |Better |
|---------+--------------+----------+------------------------+-----------|
|Offeror C|Acceptable |Acceptable|Marginal |Acceptable |
+------------------------------------------------------------------------+
Vendor Screening Report at 7.[3]
The evaluators determined that the quotations of the two highest-rated
firms, Alon and DMSJV, were essentially equal technically and that price
would therefore play an enhanced role in the determination of best value.
Alon's evaluated price was $57,510,665 [deleted]. The evaluators
concluded, after performing a paired comparison of the quotations, that
the difference in price outweighed any difference in technical quality,
and, accordingly, that Alon's quotation represented the best value to the
government. Agency Report (AR), Tab 12, Vendor Screening Report at 54. The
source selection authority agreed and selected Alon to receive the order.
DMSJV was notified of the order to Alon on April 10 and protested to our
Office on April 17.
DISCUSSION
The protester raises various challenges to the evaluation of both Alon's
quotation and its own.
We begin by noting that in the context of an RFQ such as the one here,
where an agency solicits FSS vendor responses and uses an evaluation
approach similar to that used in Federal Acquisition Regulation (FAR) Part
15 negotiated procurements, our Office will review the agency's actions to
ensure that the evaluation of vendors' submissions was reasonable and
consistent with the solicitation's evaluation criteria and applicable
procurement statutes and regulations. Advanced Tech. Sys., Inc., B-298854,
B-298854.2, Dec. 29, 2006, 2007 CPD para. 22 at 8.
Corporate Experience
The protester argues first that Alon should not have received a rating of
[deleted] under the understanding of the work statement factor because it
lacks acceptable corporate experience. Specifically, DMSJV contends that
Alon lacks experience on contracts of the magnitude of the effort
solicited here, as required by the RFQ.
As previously noted, corporate experience was one of two equally-weighted
subfactors under the understanding of the work statement factor. The RFQ
provided for its evaluation as follows:
CORPORATE EXPERIENCE: Demonstrated recent and relevant corporate
experience on work of similar scope, magnitude and nature: experience in
staffing on-site program management support to major systems software
development or integration projects.
RFQ at 74.
The evaluators assigned Alon's quotation ratings of [deleted] under both
the staff management and the corporate experience subfactors, for an
overall rating of [deleted] under the understanding of the work statement
factor. AR, Tab 11, Consensus Evaluator Factor Rating Sheet for Factor 3
pertaining to Alon. With regard to the corporate experience subfactor
specifically, the evaluators found that Alon had demonstrated [deleted]
AR, Tab 12, Vendor Screening Report at 33. The evaluators further observed
that the [deleted] Id.
The protester argues that Alon's contracts with the TSA, NWS, and MDA were
not similar in magnitude to the effort solicited here and thus should not
have been considered relevant work under the corporate experience
subfactor. DMSJV notes in this connection that Alon represented in its
quotation that the MDA contract had a final/present value of $580,000 and
the NWS contract a final/present value of $750,000 (as compared with an
evaluated price for the work here of over $50 million), and that it
furnished no information regarding the value of the TSA contract. The
protester also argues that it was improper for the evaluators to consider
the experience of Alon's "senior staff" under the corporate experience
subfactor.
In response, the agency argues that the RFQ provided for consideration of
not simply the magnitude of vendors' existing and prior contracts, but
also their scope and nature, and that the evaluators reasonably determined
that the similarities between Alon's prior contracts and the effort
solicited here with regard to the scope and nature of the work to be
performed outweighed any differences in magnitude. In support of its
position, the agency cites our decision in Computer Sys. Dev. Corp.,
B-275356, Feb. 11, 1997, 97-1 CPD para. 91, in which we found that a
procuring agency had reasonably determined, in rating proposals under a
corporate experience evaluation factor, that similarity with regard to the
type of work performed outweighed similarity with regard to contract
value. The agency also argues that since DMSJV was not present at Alon's
oral presentation, it has no way of knowing whether Alon conveyed
information regarding the value of its contract with the TSA during the
presentation.
First, the agency's argument that the protester has no way of knowing
whether Alon provided information regarding the value of its TSA contract
at its oral presentation clearly is not dispositive of the issue, given
that the agency has not asserted that Alon did in fact furnish such
information. There simply is no evidence in the record that Alon's TSA
contract (or its MDA or NWS contracts) were similar in magnitude to the
effort here. Accordingly, the issue before us is whether it was consistent
with the terms of the RFQ and reasonable for the evaluators to have
considered relevant Alon's experience on projects that were highly similar
in scope and nature, but not similar in magnitude to the effort solicited
here.
In our view, it was not consistent with the terms of the RFQ, which
essentially provided that prior work efforts had to be similar in scope,
magnitude, and nature to be considered relevant, for the evaluators to
have considered Alon's contracts with the TSA, NWS, and MDA relevant. See
Si-Nor, Inc., B-292748.2 et al., Jan. 7, 2004, 2004 CPD para. 10 at 17. We
think that this case is distinguishable from Computer Sys. Dev. Corp.,
cited by the agency above, in that in the cited case, the solicitation
identified size, complexity, and participation as factors to be considered
in determining the significance of a prior work effort, but did not
require that a project have been similar in all three respects to be
considered significant, whereas here, the RFQ defines relevant work as
work of similar scope, magnitude, and nature, meaning that all three
factors need to be present for a contract to be considered relevant.
That does not end our analysis, however, given that it is the agency's
position that the terms of the RFQ notwithstanding, contracts of lesser
magnitude than the effort here may in fact be relevant where sufficiently
similar in scope and nature. In other words, the agency's position is, in
essence, that the RFQ overstates the agency's requirements pertaining to
prior work effort relevance.
Where an agency takes the position that a solicitation overstates its
requirements, and proposes to evaluate vendor responses on the basis of
its actual, as opposed to its stated, requirements, the relevant inquiry
is whether the protester was prejudiced by the overstatement. Unfair
competitive prejudice from a waiver or relaxation of the terms of the RFQ
exists where the terms were not similarly waived or relaxed for the
protester, or the protester would be able to alter its quotation to its
competitive advantage if it were given the opportunity to respond to the
relaxed terms. See 4-D Neuroimaging, B-286155.2 et al., Oct. 10, 2001 ,
2001 CPD para. 183 at 10. Here, the evaluators considered prior work
efforts of lesser magnitude in their evaluation of both Alon's and DMSJV's
corporate experience; that is, there is no evidence that the evaluators
waived the requirement pertaining to similarity in magnitude for Alon
while failing to waive it for DMSJV. Further, we see no basis to conclude
that DMSJV would have cited different contracts as examples of its own
corporate experience had it recognized that contracts dissimilar in
magnitude might be considered relevant. Indeed, since three of the five
contracts cited by the protester in its quotation as examples of its
corporate experience have present values of less than 5 percent of its
evaluated price for the services here, it appears that the protester, like
the agency and the successful vendor, assumed that contracts dissimilar in
dollar value might nonetheless be considered relevant if sufficiently
similar in other respects. Given the apparent lack of prejudice to DMSJV,
the agency's consideration of Alon's prior contracts despite their
dissimilarity in magnitude provides no basis to object to the evaluation.
The protester argues that, because the RFQ had separate evaluation
criteria for personnel and corporate experience, it was improper for the
evaluators to consider the experience of Alon's "senior staff" under the
corporate experience subfactor. See Dix Corp., B-293964, July 14, 2004,
2004 CPD para. 143 (an agency may consider the experience of key personnel
in evaluating the corporate experience of a new business unless the terms
of the solicitation reasonably preclude such substitution, such as where
the solicitation includes separate evaluation criteria for corporate and
key personnel experience). The agency responds that the reference to the
experience of Alon's "senior staff" was a reference to the experience of
Alon's president and vice-president, that is, Alon's corporate staff.
Since, as NARA contends, the experience of these individuals was not
considered under the personnel factor, we do not think that the evaluators
were barred from considering it under the corporate experience subfactor.
Regarding the protester's argument that if Alon were given credit for the
experience of its corporate staff under the corporate experience
subfactor, then DMSJV should have been given the opportunity to receive
credit for the experience of its corporate staff, the evaluation record
reveals that DMSJV in fact did receive credit for its corporate staff
under the corporate experience subfactor. As discussed below, one of the
evaluators' justifications for rating the protester's quotation as
[deleted] under the corporate experience subfactor was that the "[o]wner
demonstrated good understanding of requirements." AR, Tab 11, Consensus
Evaluator Factor Rating Sheet for Factor 3 pertaining to DMSJV. See also
AR, Tab 12, Vendor Screening Report at 31. Further, regarding the
protester's argument that there is no evidence in the record that the
contracts worked on by Alon's corporate staff were similar in magnitude to
the effort here, as discussed above, we think that the agency could
properly consider such efforts provided the contracts were sufficiently
similar in other respects.
The protester also takes issue with the rating of its own quotation as
merely [deleted] under the corporate experience subfactor. DMSJV argues
that its quotation should have received a more favorable rating than
Alon's under this subfactor because it demonstrated both more, and more
relevant, experience than Alon. The protester also argues that the
evaluators improperly downgraded the rating of its quotation under the
corporate experience subfactor based on concerns pertaining to the
percentage of work to be performed by employees of the joint venture.
DMSJV argues that this was improper since such concerns are matters of
responsibility and contract administration.
As noted by the protester, the agency evaluators assigned DMSJV's
quotation a rating of [deleted] under the corporate experience subfactor.
The evaluators furnished the following justification for the rating on
their consensus rating worksheet:
[deleted]
AR, Tab 11, Consensus Evaluator Factor Rating Sheet for Factor 3
pertaining to DMSJV. Similarly, the Vendor Screening Report identified the
following strengths and weaknesses pertaining to DMSJV's corporate
experience:
[deleted]
AR, Tab 12,Vendor Screening Report at 31.
Regarding the protester's argument that it should have received a more
favorable rating than Alon under the corporate experience subfactor
because it has more, and more relevant, experience, we think that the
evaluation record demonstrates a reasonable basis for the assignment of
ratings of [deleted] to both quotations under the subfactor. As explained
above, we see no basis to conclude that the evaluators were required to
assign Alon's quotation a rating lower than better. With regard to DMSJV's
quotation, we think that a rating of [deleted] was justified given that
only two of the five contracts cited by the protester as examples of its
corporate experience were in fact performed by the joint venture (the
other three having been performed by the mentor partner, ASC), and the
present/final value of these two contracts were $584,412 and $1,909,661,
respectively, meaning that both were, like Alon's prior contracts, of a
magnitude considerably smaller than the effort here. Regarding the
protester's complaint that concerns regarding the percentage of work to be
performed by the joint venture should not have been considered a weakness
under the corporate experience factor, we agree; since such concerns do
not pertain to corporate experience, we see no rationale for considering
them weaknesses under the subfactor. Nonetheless, given the above
information pertaining to the number and value of the prior contracts
performed by the joint venture itself, we see no basis to conclude that
but for the wrongly attributed weakness, DMSJV should have received a
rating of [deleted] under the corporate experience subfactor.
Past performance
The protester challenges the evaluation of both its own and Alon's
quotations under the past performance factor. Both quotations received
ratings of [deleted] under the factor.
The RFQ informed vendors that their past performance would be evaluated
"under existing and prior contracts for similar products and services" and
instructed them to submit "no more than five (5) Past Performance
references" for similar efforts. RFQ at 52. The solicitation further
provided that "[i]f the prime Contractor or its subcontractors have no
past performance history in the requisite contract amount, the Offeror may
submit information on past performance at lower dollar levels, providing
that the Offeror adheres to the above limitations as to the number of
chronologically consecutive contracts." Id.
The protester argues that Alon's past performance should have been rated
as unacceptable because Alon "did not have contracts similar in size to
the work of the RFQ and submitted only three contracts that could be
evaluated for past performance."[4] Supplemental Protest at 11.
Regarding the protester's first allegation, the RFQ explicitly permitted
the submission of past performance information on contracts of lower
dollar value than the effort here. To the extent that the protester is
arguing that NARA should not have considered Alon's lower-value contracts
relevant despite the RFQ language explicitly permitting the submission of
past performance information pertaining to such efforts, we disagree; it
would make no sense for the agency to permit vendors to submit information
on lower-value contracts if it did not intend to consider it. With regard
to DMSJV's argument that Alon's past performance should have been rated
unacceptable because the agency received performance surveys pertaining to
only three relevant contracts, the RFQ did not require past performance
information on a specified minimum number of contracts--its only
restriction pertained to the maximum number of projects that could be
submitted for consideration. Moreover, even a total lack of relevant past
performance on the part of a vendor would not have resulted in a rating of
unacceptable for past performance; instead, under the procedures used
here, it would have resulted in the neutral rating of "No Past
Performance."[5]
Regarding the evaluation of its own past performance, DMSJV takes issue
with the evaluators' identification of the following weaknesses in the
Vendor Screening Report:
[deleted]
AR, Tab 12, Vendor Screening Report at 45.
The protester argues that the agency should not have considered it a
weakness that only two of the contracts that it submitted were for the
joint venture itself (as opposed to the large business partner). DMSJV
acknowledges that our Office has held that in evaluating past performance,
an agency may appropriately consider the experience of the individual
members of a joint venture and, at the same time, consider the lack of
experience of the joint venture, see, e.g., Transventures Int'l, Inc.,
B-292788, Nov. 4, 2003, 2003 CPD para. 195 at 7; ITT Federal Servs. Int'l
Corp., B-283307, B-283307.2, Nov. 3, 1999, 99-2 CPD para. 76 at 14, but
urges us to reconsider these decisions. We see no basis for departing from
our precedent. Since it is the joint venture that will be performing the
work here, we see no reason that the agency could not properly have
considered the extent of its experience in its evaluation.
DMSJV also takes issue with the evaluators' finding that the NARA
references disclosed weaknesses in overall customer satisfaction. The
protester argues that all of the negative comments cited by the evaluators
are attributable to a single reference, and that this reference made
positive, as well as negative, comments regarding customer satisfaction
with its performance, but that the evaluators picked up on the negative
comments only.
The reference's comments indicated that the government staff was satisfied
with the performance of some ASC employees and dissatisfied with the
performance of others.[6] We think that the evaluators could reasonably
have regarded customer dissatisfaction with a portion of the contractor
workforce as a weakness.
Bait and switch
DMSJV argues that Alon does not intend to hire some of the individuals
whom it identified in its quotation as key personnel, and that it has thus
engaged in an impermissible "bait and switch." In its initial protest, the
protester cited as evidence of Alon's purported intention to switch
personnel, conversations between government contracting personnel and
several employees of the incumbent, ASC, during the course of which the
government personnel allegedly encouraged the ASC employees to seek
employment with Alon. In commenting on the agency report, DMSJV cited as
further evidence that Alon intended to hire incumbent personnel for
certain core positions (and thus did not intend to rely upon the personnel
whom it had identified in its quotation) an excerpt from one of Alon's
oral presentation slides that stated that Alon had [deleted] AR, Tab 15,
Alon Quotation, Oral Presentation Slides.
As previously noted, the RFQ identified 64 labor categories and designated
13 of them as core positions. Vendors were required to submit a Personnel
Data Form for each individual proposed for a core position. The
solicitation provided that "[t]he [c]ontractor agrees to assign to the
task order those key persons whose Personnel Data Forms were submitted as
required to fill the core requirements of the task order." RFQ at 79. The
RFQ further provided that "the qualifications of the proposed personnel
for whom Personnel Data Forms are submitted will become the minimum
qualifications for any contractor personnel who may replace those
personnel when performing under the affected labor category." Id. at 52.
To establish an impermissible "bait and switch," a protester must show
that a firm either knowingly or negligently represented that it would rely
on specific personnel that it did not expect to furnish during contract
performance, and that the misrepresentation was relied on by the agency
and had a material effect on the evaluation results. Advanced Tech. Sys.,
Inc., supra, at 10.
Even assuming for the sake of argument that there is evidence of an
intention to switch here, the protester's argument that an impermissible
"bait and switch" occurred must fail because there is no evidence of
baiting. In this connection, DMSJV has not alleged that Alon intends to
replace the individuals designated in its quotation with less qualified
ones; its allegation is that Alon intends to substitute for the
individuals named in the quotation equally (or better) qualified employees
of the incumbent. Since the substitution of equally qualified individuals
for the ones designated in a quotation could not have had a material
effect on the evaluation results, such a substitution does not constitute
an impermissible "bait and switch."[7]
Evaluation of Personnel
DMSJV argues that it was unreasonable for the agency evaluators to assign
Alon's quotation a rating of [deleted] under the personnel evaluation
factor given that they identified the following deficiency pertaining to
Alon's proposed senior risk management specialist:
Candidate has the following deficiency: [deleted].
AR, Tab 12, Vendor Screening Report at 12. The protester notes that the
Vendor Screening Plan defined a deficiency as follows:
A "Deficiency" is a material failure of the quote to meet a requirement or
a combination of significant weaknesses that increase the risk of
unsuccessful performance to an unacceptable level.
AR, Tab 8, Vendor Screening Plan at 12. DMSJV contends that in view of the
deficiency in experience and expertise pertaining to a key employee,
Alon's quotation should have been rated as unacceptable under the
personnel factor and its risk of nonperformance considered high.
In response, the agency explains that "when the [evaluators] stated that
one of the candidates proposed by Alon for one of the key positions had a
deficiency, the [evaluators] did not mean a `deficiency' in the technical
sense as a material failure," rather, "the [evaluation team] was noting
that the candidate was deficient [deleted] Agency Reply/Report on the
Supplemental Protest at 22. The agency observes that it was an
"unfortunate use of the word." Id. While the protester disputes the
agency's explanation, it seems reasonable to us. The RFQ defined desired,
as opposed to required, qualifications for the position of senior risk
management specialist, and we do not see how a failure to offer desired
qualifications could be termed a failure to meet a solicitation
requirement.
Mapping to FSS Schedule
Each vendor was required to furnish as part of its quotation a pricing
table identifying for each labor category described in the RFQ the
corresponding labor category from the vendor's FSS contract. The protester
argues that three of the labor categories identified by Alon in its table
are not equivalent to the labor categories described in the RFQ and that
Alon's FSS contract thus does not contain all required labor categories.
Specifically, DMSJV contends that Alon has not identified an equivalent
labor category for the core positions of senior risk management
specialist, facilities and operations specialist, and senior
organizational development specialist.
The FSS program, directed and managed by GSA, gives federal agencies a
simplified process for obtaining commonly used commercial supplies and
services. FAR
sect. 8.401(a). The procedures established for the FSS program satisfy the
requirement for full and open competition. 41 U.S.C. sect. 259(b)(3)
(2000); FAR sect. 6.102(d)(3); Tarheel Specialties, Inc., B-298197,
B-298197.2, July 17, 2006, 2006 CPD para. 140 at 3. Non-FSS products and
services may not be purchased using FSS procedures; instead, their
purchase requires compliance with the applicable procurement laws and
regulations, including those requiring the use of competitive procedures.
American Sys. Consulting, Inc., B-294644, Dec. 13, 2004, 2004 CPD para.
247 at 3. Accordingly, where an agency announces its intention to order
from an FSS contractor, all items are required to be within the scope of
the vendor's (or, if not prohibited by the solicitation, its
subcontractors') FSS contract(s).[8] Altos Fed. Group, Inc., B-294120,
July 28, 2004, 2004 CPD para. 172 at 4.
The RFQ identified the function to be performed by, and the desired
qualifications of, the senior risk management specialist as follows:
FUNCTION: Implements ERA Risk Program including support to the Risk Review
Boards and Risk Review Teams. Facilitates formal Risk Management meetings.
Manages operations of risk management tools. Develops risk scenarios and
assesses impact on schedule, cost and program mission. Reviews ERA risk
related deliverables from ERA PSI Contractor. Writes or updates ERA
Program Management Risk Plans, procedures, and processes. Performs other
tasks as directed.
DESIRED EDUCATION: Bachelor's Degree (BA/BS) in Business Administration,
Public Administration, Engineering or related field. Eight years
progressively responsible experience with increasingly more complex or
difficult assignments may be substituted for educational requirement.
DESIRED GENERAL EXPERIENCE: Twelve years experience in planning or
performing project or program risk analysis and management efforts.
DESIRED SPECIALIZED EXPERIENCE: Two years experience in facilitating risk
review meetings and in applying currently available risk management tools
such as @Risk and Risk Radar on project plans, technical approaches,
project schedule or cost estimation.
RFQ at 16.
In its pricing table, Alon identified the labor category from its FSS
contract that was equivalent to the above category as senior requirements
analyst. Alon's FSS contract included the following description of that
position:
Minimum/General Experience: 10 years experience gathering requirements for
business and technical solutions. Must have strong writing and
communications skills and the ability to interface with senior and
executive management. Must be knowledgeable with the implementation of
applicable Government mandates such as the President's Management Agenda
and the Federal Acquisition Regulation (FAR). Master's degree is
equivalent to two (2) years experience.
Functional Responsibility: Duties may include conducting process or
requirements analyses, supporting IT systems development with subject
matter knowledge, assisting in IT procurement, performing system audits,
conducting training, and assisting in the preparation of management and
financial reports and presentations.
Minimum Education: Bachelor's Degree in Computer Science. Eight (8) years
of experience is equivalent to a Bachelor's Degree.
AR, Tab 15, Alon FSS Contract at 21-22.
The protester argues that the functions to be performed by an Alon senior
requirements analyst do not encompass the functions required to be
performed by a senior risk management specialist, as defined by the RFQ.
DMSJV further argues that 12 years of experience are required for the
position described in the RFQ, whereas Alon's "equivalent" position
requires only 10 years of experience.
The agency responds that the only risks that the senior risk management
specialist here will need to address are the risks associated with the
development and implementation of the IT systems being acquired--that is,
the only risks that will need to be addressed are those associated with
the development and implementation of the system requirements--and that a
senior requirements analyst is thus perfectly suited for the position. We
think that the agency's position is reasonable. With regard to the
argument concerning the number of years of experience, the RFQ did not
state that 12 years of experience were required; it stated that 12 years
of experience were desired. Since the RFQ did not define 12 years of
experience as a requirement, we do not think that it was inconsistent with
the position description for Alon to identify only 10 years of experience
in its position description.
Turning to DMSJV's argument that Alon did not identify an equivalent labor
category for the position of facilities and operations specialist, the RFQ
included the following description of this position:
FUNCTION: Review substantive and complex technical documents related to
ERA implementation, including documents and artifacts related to
logistics, physical security, facilities planning, network and
telecommunications planning, operations and maintenance planning, and
installation. Performs other tasks as directed.
DESIRED EDUCATION: Bachelor of Science Degree in Electrical Engineering,
Information Technology, Computer Science or related field. Eight years
progressively responsible experience with increasingly more complex or
difficult assignments may be substituted for educational requirement.
DESIRED GENERAL EXPERIENCE: Ten years experience supporting large systems
installations.
DESIRED SPECIALIZED EXPERIENCE: Eight years experience in area of
expertise.
RFQ at 31.
Alon identified the position in its FSS contract equivalent to the above
position as subject matter expert I. Alon's FSS contract described the
position of subject matter expert I as follows:
Minimum/General Experience: Requires ten years experience in information
systems, including five years of specialized experience providing
state-of-the-art solutions in information systems technology. If the area
of expertise is new state-of-the-art technology, experience must be
consistent with the age of the technology. Vendor certification in RDBMS,
development language, or telecommunication technology may be substituted
for advanced degree or experience requirements.
Functional Responsibility: Duties may include providing expert services
and leadership in specialized technical areas, generally providing
technical expertise in state-of-the-art technology.
Minimum Education: Master's Degree or other equivalent degree program (or
an additional 2 years general IT experience).
AR, Tab 15, Alon FSS Contract at 23.
DMSJV argues that the functions to be performed by a facilities and
operations specialist, as defined by the RFQ, are distinct from those to
be performed by a subject matter expert I, as defined in Alon's FSS
contract. In this connection, the protester asserts that "[a] Facilities
and Operations Specialist is responsible for the operation of the system
and the facility where the system is located," whereas "[a] subject matter
expert tells the requirements analyst what needs to be done by the
computer system." Protester's Comments, May 29, 2007, at 37.
As noted above, the RFQ defined the function of a facilities and
operations specialist as "[r]eview[ing] substantive and complex technical
documents related to ERA implementation;" it did not contain the
definition advanced by DMSJV. We think that it was reasonable for the
agency to conclude that the functions to be performed by an Alon subject
matter expert I--i.e., providing expert services and leadership in
specialized technical areas--are consistent with this function.
Finally, with regard to the protester's argument that Alon did not propose
an appropriate equivalent labor category for the position of senior
organizational development specialist, the RFQ described that position as
follows:
FUNCTION: Identify and use methodologies and tools to assess user
acceptance issues and requirements relative to a transformational
information system such as ERA. Develop and execute strategies to
facilitate and promote user acceptance of the ERA system. Identify
opportunities and approaches for securing and expanding internal and
external stakeholder involvement in the ERA program.
DESIRED EDUCATION: Masters Degree in Industrial or Organizational
Psychology, Business or Public Administration, Human Resource Management
or extensive study into human factors as part of an Information
Technology, or related field. Fifteen years progressively responsible
experience with increasingly more complex or difficult assignments may be
substituted for educational requirement.
DESIRED GENERAL EXPERIENCE: Six years experience in developing and
implementing organizational development plans, strategies and activities.
DESIRED SPECIALIZED EXPERIENCE: Three years experience facilitating
meetings, seminars, workshops or similar events addressing information
technology human factors, or user acceptance of new technologies.
RFQ at 32. Alon identified its equivalent labor category as information
systems engineer IV, a position that its FSS contract described as
follows:
Minimum/General Experience: Requires ten years experience. Relevant
experience includes, but is not limited to, analysis and design of complex
systems applications, such as web-based systems; use of programming
languages; knowledge of database management systems; and software
development management experience.
Functional Responsibility: Duties may include performing, leading, and
coordinating activities for the development of complex systems in one or
more of the following areas: requirements analysis, design analysis,
design, programming, software integration, documentation, test and
evaluation, and other technical tasks.
Minimum Education: Bachelor's Degree or other equivalent degree program
(or an additional 4 years general IT experience).
AR, Tab 15, Alon FSS Contract at 25-26.
DMSJV maintains that the positions are not equivalent in that the function
of a senior organizational development specialist is to facilitate the
adaptation of stakeholders to a system, whereas an Alon information
systems engineer IV "is involved primarily in developing systems
applications, programming languages and software." Protester's Comments,
May 29, 2007, at 39.
The protester's argument overlooks the fact that the functional
responsibilities described in Alon's FSS contract for the position of
information systems engineer IV include the testing and evaluation of
complex systems, as well as leading and coordinating such activities. We
think that the functions to be performed by the senior organizational
development specialist in connection with the work effort here--i.e.,
assessing and promoting user acceptance of the ERA--may reasonably be
viewed as encompassed within the Alon position description.
Pricing
DMSJV argues that NARA should have found Alon's proposed pricing
unreasonable because Alon intends to hire incumbent personnel to fill some
of the core positions, but has proposed to pay these individuals at rates
lower than their current salaries. The protester bases its allegation that
Alon intends to hire incumbent employees on the previously-cited excerpt
from Alon's quotation stating that it [deleted] DMSJV bases its allegation
that Alon intends to pay these individuals at rates lower than their
current salaries on the fact that Alon proposed hourly rates for the core
positions lower than its own proposed rates, which the protester claims
are based on the salaries that ASC is currently paying.
There is no indication in Alon's quotation as to the salaries that it
intends to pay its employees; the quotation indicates only the hourly
rates at which the services are offered. Thus, there is no evidence in the
record (and DMSJV offers none) to show that Alon intends to compensate its
employees at rates lower than the rates paid by the incumbent, ASC. As
noted by the agency, Alon's lower prices might be due to lower overhead or
profit margin--or even to Alon's willingness to take a loss on certain
positions.
The protest is denied.
Gary L. Kepplinger
General Counsel
------------------------
[1] DMSJV is a partnership between Data Management Services, an 8(a),
woman-owned, Historically Underutilized Business Zone company, and
American Systems Corporation (ASC), a large business. Protest at 1. ASC is
the incumbent contractor for the services being solicited.
[2] The RFQ included separate line items for the core and the non-core
labor categories, with the line items corresponding to the latter
identified as optional.
[3] Quotations were to be rated as either acceptable or unacceptable under
the achievement of socio-economic objectives factor; as outstanding,
better, acceptable, marginal, or unacceptable under the personnel and
understanding of the work statement factors; and as outstanding, better,
acceptable, marginal, or no past performance under the past performance
factor. AR, Tab 8, Vendor Screening Plan at 12-14.
[4] While, consistent with the RFQ instruction that directed vendors to
submit five references, Alon submitted information on five contracts, the
evaluators determined one of the contracts to be not relevant; in
addition, the point of contact on another failed to return the performance
survey.
[5] The Vendor Screening Plan noted that a rating of "No Past Performance"
meant that the "[q]uote receives no merit or demerit for this factor." AR,
Tab 8, Vendor Screening Plan at 14.
[6] The comments made by the individual reference were as follows:
[deleted]
Contractor Past Performance Evaluation Document at 3.
[7] We also note that NARA has protected itself against the possibility of
a "bait and switch" by the successful vendor by including in the RFQ the
above-cited language providing that the qualifications of proposed key
personnel will become the minimum qualifications for those proposed to
replace them.
[8] The RFQ here did in fact require that all items be on the vendor's own
schedule.