TITLE: B-299798.2, Council for Adult & Experiential Learning, August 28, 2007
BNUMBER: B-299798.2
DATE: August 28, 2007
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B-299798.2, Council for Adult & Experiential Learning, August 28, 2007

   Decision

   Matter of: Council for Adult & Experiential Learning

   File: B-299798.2

   Date: August 28, 2007

   John R. Zappa for the protester.

   Thomas P. Humphrey, Esq., Amy Laderberg O'Sullivan, Esq., and Adelicia
   Cliffe Taylor, Esq., Crowell & Moring LLP, for IBM Global Business
   Services, an intervenor.

   Maj. Geraldine R. Chanel, Department of the Army, for the agency.

   Jonathan L. Kang, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Post-award challenges to solicitation terms are dismissed as untimely and
   challenges to agency's evaluation of proposals are denied because they are
   based on untimely allegations and fail to specifically identify flaws with
   the agency's evaluation.

   DECISION

   The Council for Adult & Experiential Learning (CAEL) protests the award of
   a contract to IBM Global Business Services under request for proposals
   (RFP) No. W74V8H-06-R-0007, issued by the Department of the Army, Army
   Continuing Education System (ACES), for integration and other technical
   services for the GoArmyEd program. The protester contends that the terms
   of the solicitation created a competition that was biased in favor of IBM,
   the award to IBM was tainted by organizational conflicts of interest
   (OCI), and the agency unreasonably evaluated the offerors' proposals.

   We dismiss in part and deny in part the protest.

   BACKGROUND

   The GoArmyEd program offers active duty soldiers "anytime, anywhere"
   access to educational opportunities from accredited postsecondary
   education institutions through an online web-based portal. The program
   allows soldiers to select a degree program, enroll in and access courses,
   obtain education counseling, and access financial aid and other support
   services. The program also provides infrastructure and logistical support
   for schools and education service providers. GoArmyEd is intended to fully
   replace the existing eArmyU program, under which soldier education
   services have been previously provided, and which now provides certain
   limited services. IBM is the incumbent contractor for eArmyU.

   The agency issued the RFP on September 29, 2006, seeking proposals to
   provide lead integration and other technical services required to ensure
   continuous availability and reliability of the GoArmyEd web portal and
   associated infrastructure. The performance work statement (PWS) included
   requirements to complete the transition from the eArmyU program to
   GoArmyEd, maintain the GoArmyEd web portal, provide technical, management
   and logistic support for the education service providers, and provide
   support for future expansion of the GoArmyEd program.[1]

   The RFP anticipated award of an indefinite-delivery/indefinite-quantity
   (ID/IQ) contract with a 1-year base term, and nine 1-year options. The
   work under the contract will be performed through the issuance of firm
   fixed-price and time-and-materials task orders.

   The RFP identified five non-cost/price evaluation factors, listed here in
   descending order of importance: technical approach, management
   capabilities and approach, corporate recent and relevant experience, small
   business participation plan, and past performance. RFP sect. M-2. The RFP
   stated that "[t]he non-Price Factors, when combined, are significantly
   more important than the Price/Cost factor." Id. sect. M.1. Offerors were
   informed that their proposals must receive a rating of at least
   "acceptable" under the first three evaluation factors in order to be
   eligible for award. Id. The RFP also stated that offerors' proposed prices
   would be evaluated for price realism and reasonableness. Id.

   Three offerors submitted proposals in response to the solicitation: IBM,
   Savantage Solutions, and CAEL.[2] CAEL's proposal included the
   participation of a subcontractor, AutoDP, Inc. The RFP stated that the
   Army intended to make an award based on offerors' initial proposals,
   without conducting discussions, RFP sect. L.2.a; consistent with this
   provision, the agency did not conduct discussions with offerors. As
   relevant to the protest, the agency evaluated the offerors' proposals as
   follows:

   +------------------------------------------------------------------------+
   |                                           |   IBM    |      CAEL       |
   |-------------------------------------------+----------+-----------------|
   |1. Technical Approach[3]                   |Excellent |  Unacceptable   |
   |-------------------------------------------+----------+-----------------|
   |2. Management Capabilities and Approach    |Excellent |  Unacceptable   |
   |-------------------------------------------+----------+-----------------|
   |3. Corporate Recent and Relevant Experience|Excellent |  Unacceptable   |
   |-------------------------------------------+----------+-----------------|
   |4. Small Business Participation Plan       |Acceptable|Not applicable[4]|
   |-------------------------------------------+----------+-----------------|
   |5. Past Performance                        | Low Risk |     Unknown     |
   |-------------------------------------------+----------+-----------------|
   |Overall Rating                             |Excellent |  Unacceptable   |
   +------------------------------------------------------------------------+

   AR, Tab 14, Source Selection Decision (SSD), at 6.

   The Army determined that CAEL's proposal, which received ratings of
   "unacceptable" for the first three evaluation factors, was not eligible
   for award. Id. at 48-49. The agency concluded that IBM's proposal "offered
   a superior technical proposal that contained merit significantly greater
   than either Savantage Solutions or [CAEL]," and that it "provides the best
   solution for completing the requirement and there is very low risk of
   unsuccessful completion of the contract." Id. at 49. The agency advised
   CAEL of the award to IBM on May 10, 2007, and provided a debriefing
   regarding the source selection on May 16. This protest followed.

   DISCUSSION

   CAEL raises numerous challenges to the agency's award to IBM. An
   overarching theme of CAEL's protest is that the competition was skewed to
   favor IBM as a result of a flawed RFP and OCIs. However, as discussed in
   detail below, the bulk of these challenges are untimely because they
   relate to the terms of the solicitation or terms of the competition that
   were known to offerors prior to the time proposals were due. The balance
   of CAEL's arguments relate to the evaluation of offerors' proposals and
   miscellaneous collateral issues; many of these challenges are also
   untimely. We conclude that none of CAEL's allegations warrant sustaining
   the protest.

   Untimely Solicitation Challenges

   CAEL argues that the Army refused to provide information regarding IBM's
   performance of the eArmyU contract, which the protester argues was
   required to permit non-incumbent offerors a reasonable opportunity to
   compete. This challenge is untimely because it relates to the terms of the
   solicitation.

   Our Bid Protest Regulations contain strict rules for the timely submission
   of protests. They specifically require that a protest based on alleged
   improprieties in a solicitation that are apparent prior to bid opening be
   filed before that time. 4 C.F.R. sect. 21.2(a)(1) (2007). Our timeliness
   rules reflect the dual requirements of giving parties a fair opportunity
   to present their cases and resolving protests expeditiously without unduly
   disrupting or delaying the procurement process. Dominion Aviation,
   Inc.--Recon., B-275419.4, Feb. 24, 1998, 98-1 CPD para. 62 at 3.

   Here, CAEL argues that the Army unreasonably refused to provide technical
   specifications and legacy information regarding the eArmyU contract, and
   did not provide adequate details regarding the performance work statement
   (PWS) and statement of work (SOW). The protester argues that the lack of
   information regarding the existing ACES systems and requirements left an
   offeror with insufficient information to address the RFP's requirement to
   submit a detailed proposal outlining its approach to the requirements.
   CAEL argues that offerors were placed "in the awkward position of having
   to make their best guess" as to how to respond to the solicitation.
   Protest at 55.

   All of CAEL's allegations regarding the Army's failure to provide
   information are untimely because they constitute challenges to the terms
   of the solicitation. Additionally, with regard to the various types of
   technical data sought by the protester, the Army specifically advised
   offerors that this information would not be provided. As the Army notes,
   amendment 2 to the solicitation addressed numerous questions submitted by
   offerors. With regard to much of the information now sought by the
   protester, the Army stated in amendment 2 that the agency either could not
   release the requested information because it was IBM proprietary data or
   that the information would be provided to the successful contractor after
   award. See, e.g., RFP amend. 2, Question and Answer Nos. 41, 46, 47, 48a,
   49a, 57, 60. The protester was therefore on notice that the information
   would not be provided; consequently, the protester's post-award challenges
   are untimely.

   The protester also contends that the agency improperly refused to provide
   information regarding training and informational meetings between IBM and
   ACES officials during the performance of the incumbent contract. CAEL
   requested to participate in those meetings, which took place both before
   and after the solicitation was issued, but was not allowed to attend.
   Protest at 49. CAEL also requested minutes, notes and other data, from
   those meetings, but was not provided this information. Protest at 49. CAEL
   argues that the meetings may have discussed ACES's current and future
   requirements, and therefore the agency was obligated to provide offerors
   any information that would have been relevant to the competition. These
   allegations are also untimely because they relate to the terms of the
   solicitation--information not furnished with the RFP--and CAEL did not
   raise them prior to the time for receipt of proposals.

   Organizational Conflicts of Interest

   CAEL next argues that the competition was tainted by OCIs. As discussed
   below, we conclude that the record does not support CAEL's allegations.

   The Federal Acquisition Regulation (FAR) generally requires contracting
   officers to avoid, neutralize or mitigate potential significant conflicts
   of interest so as to prevent unfair competitive advantage or the existence
   of conflicting roles that might impair a contractor's objectivity. FAR
   sections 9.504, 9.505; Snell Enters., Inc., B-290113, B-290113.2, June 10,
   2002, 2002 CPD para. 115 at 3. The situations in which OCIs arise, as
   addressed in FAR subpart 9.5 and the decisions of our Office, can be
   broadly categorized into three groups: biased ground rules, unequal access
   to non-public information, and impaired objectivity. Contracting officers
   must exercise "common sense, good judgment, and sound discretion" in
   assessing whether a potential conflict exists and in developing
   appropriate ways to resolve it; the primary responsibility for determining
   whether a conflict is likely to arise, and the resulting appropriate
   action, rests with the contracting agency. FAR sect. 9.505; Science
   Applications Int'l Corp., B-293601.5, Sept. 21, 2004, 2004 CPD para. 201
   at 4.

   CAEL argues that the award to IBM was tainted as a result of two instances
   of unequal access to information.[5] The protester argues that IBM had
   exclusive access to information that was required for offerors to submit
   competitive proposals as a result of IBM's performance of the incumbent
   eArmyU contract. The protester also contends that IBM's participation in
   the training and informational meetings with the ACES officials cited
   above gave rise to an OCI because other offerors were not allowed to
   participate in the meetings or receive information from those meetings.

   It is well-settled that a particular offeror may posses unique advantages
   and capabilities due to its prior experience under a government contract
   or otherwise and the government is not required to attempt to equalize
   competition to compensate for it, unless there is evidence of preferential
   treatment or other improper action. Gonzales Consulting Servs., Inc.,
   B-291642.2, July 16, 2003, 2003 CPD para. 128 at 7. The existence of this
   advantage, as alleged here, does not by itself constitute preferential
   treatment by the agency, nor does it otherwise represent an unfair
   competitive advantage. Government Bus. Servs. Group, B-287052 et al., Mar.
   27, 2001, 2001 CPD para. 58 at 10.

   Further, both of CAEL's OCI allegations pertain to the same types of
   information that the protester argues should have been made available to
   offerors in the solicitation. Thus, to the extent that CAEL's arguments
   posit an OCI based on unequal access to information that was not disclosed
   in the RFP, these arguments are untimely. Dominion Aviation, Inc.--Recon.,
   supra. Specifically, the protester knew that the agency refused to
   disclose the information and was not otherwise taking actions to address
   what CAEL now argues was IBM's unequal access to information.

   Technical Proposal Evaluation

   CAEL next argues that the agency unreasonably evaluated the offerors'
   technical proposals. The protester fails to specifically challenge the
   Army's evaluations, however, and instead relies on generalizations and
   thus provides no basis to sustain the protest.

   As discussed above, the Army determined that CAEL's proposal was
   unacceptable with regard to the following three evaluation factors:
   technical approach, management capabilities and approach, and corporate
   recent and relevant experience. AR, Tab 14, SSD, at 6. These evaluations
   were based on numerous material deficiencies in CAEL's proposal under each
   of the evaluation factors. For example, our review of the record shows
   that CAEL failed to submit required elements of the proposal, such as a
   draft transition order and letters of commitment for its proposed key
   personnel, and also failed to demonstrate the requisite corporate
   experience as to the full range of PWS requirements. AR, Tab 14, SSD, at
   13, 22, 32. Based on the protester's failure to receive ratings of at
   least acceptable for these three evaluation factors, the agency reasonably
   determined that its proposal was ineligible for award. Id. at 48-49.

   The protester contends that CAEL and AutoDP are the most experienced
   contractors in certain of the areas of the solicitation requirements, and
   argues that CAEL's proposal would have been beneficial to the GoArmyEd
   program. Protest at 52-54; Protest's Comments on AR at 16-17. CAEL's
   arguments regarding its and AutoDP's capabilities are general, however,
   and the protester does not challenge any of the specific areas in which
   the Army found its proposal technically unacceptable. In sum, the protest
   does not meaningfully challenge the agency's evaluation of CAEL's proposal
   or the agency's determination that the proposal was ineligible for award.

   CAEL also argues that the agency unreasonably evaluated the offerors'
   proposals because CAEL would have required less research and development
   effort as compared to IBM. The protester argues that it currently
   possesses the capability to provide functions that the RFP anticipated
   would be developed by the contractor during contract performance. Protest
   at 54-55. The protester does not argue, and the RFP does not state,
   however, that the functionalities that CAEL claims that IBM lacks were
   requirements that an offeror needed to demonstrate in its proposal in
   order to be technically acceptable. Stated differently, even if the
   protester were correct that IBM will need to develop additional
   capabilities during contract performance that it does not currently
   possess, this allegation does not demonstrate that IBM's proposal was
   technically unacceptable. Thus, this allegation provides no basis to
   challenge the award to IBM.

   Other issues

   In addition to the protest grounds discussed above, CAEL has raised
   various other arguments. Although we discuss three additional issues
   below, we have reviewed all of the issues raised by CAEL in its protest,
   and find no merit in them.

   CAEL argues that the agency's decision to award the contract without
   discussions was improper, and that discussions would have allowed CAEL to
   address the agency's concerns regarding its proposal. The RFP, however,
   stated that the agency intended to award without discussions, and further
   advised that "Offerors are cautioned to examine this solicitation in its
   entirety and to ensure that their proposal contains all necessary
   information, provides all required documentation, and is complete in all
   respects." RFP sect. L.2.a. The agency's decision not to conduct
   discussions was consistent with the RFP language, and, on this record, the
   protester provides no basis to challenge the agency's decision.

   CAEL next contends that a donation of software by IBM to the government
   may have created a conflict of interest that affected the competition. The
   protester claims that an "announcement was heard on the national news
   media by CAEL staff" in early April 2007, prior to award, that IBM would
   "donat[e] $45 million worth of software to the Army for GoArmyEd." Protest
   at 58. The agency notes, however, that the protester incorrectly
   characterized the donation: a news article on April 3 stated that IBM
   intended to donate "10,000 copies of its speech translation software to
   the U.S. government for use in humanitarian settings in Iraq." AR, Tab 18,
   "IBM Donates Translation Software to US Military," IDG News Service, Apr.
   3, 2007. Because CAEL's allegations regarding the nature of the donation
   are inaccurate, and because the protester presents only a vague inference
   of impropriety regarding the donation, we conclude that this protest issue
   does not have merit. In this regard, government officials are presumed to
   act in good faith, and our Office will not attribute unfair or prejudicial
   motives to them on the basis of inference or supposition. PAI Corp.,
   B-298349, Aug. 18, 2006, 2006 CPD para. 124 at 2-3.

   Finally, the protester argues that certain patents owned by its
   subcontractor AutoDP will be violated by IBM and the Army in the
   performance of the contract and the GoArmyEd program, generally. A
   potential claim for patent infringement does not provide a basis for
   sustaining a protest. Odetics, Inc., B-246008, Feb. 13, 1992, 92-1 CPD
   para. 185 at 3-4. The exclusive remedy for a patent holder who claims
   patent infringement by the government or by a government contractor who
   acts with the authorization or consent of the government is a suit against
   the government in the United States Court of Federal Claims. Lab Prods.,
   Inc., B-252452, Mar. 19, 1993, 93-1 CPD para. 250 at 4. Therefore, our
   Office will not consider this issue.

   The protest is dismissed in part and denied in part.

   Gary L. Kepplinger
   General Counsel

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

   [1] The actual provision of educational, counseling, and financial aid
   services is separate from the requirements sought under this solicitation.
   RFP, PWS, at 14.

   [2] Our office did not issue a protective order in connection with this
   protest because CAEL elected not to retain counsel. A redacted version of
   the agency report was furnished to CAEL regarding the agency's evaluation
   of its proposal, and a redacted evaluation was provided to counsel for IBM
   regarding the evaluation of its proposal. Certain portions of the source
   selection decision, including the offerors' overall evaluation scores,
   were provided to both parties. Consequently, our discussion regarding the
   agency's evaluation of offerors' proposals is general in nature because
   information in those evaluations and the source selection decision
   reference materials in the vendors' quotations that may be proprietary to
   the offerors. Additionally, our decision does not further discuss the
   proposal submitted by Savantage, which was not a party to the protest
   (Savantage filed its own protest, which we denied on August 22, 2007). We
   have reviewed the entire unredacted record in camera, including all of the
   agency's evaluation materials and the proposals submitted by CAEL and IBM.

   [3] For the first four evaluation factors, the agency used an evaluation
   scheme of excellent, good, acceptable, marginal, and unacceptable. Past
   performance was evaluated on the basis of low, moderate, high or unknown
   risk.

   [4] CAEL is a small business, and was therefore not evaluated under this
   factor.

   [5] In its initial protest, CAEL also argued that the participation of
   Army contractors and other entities in the evaluation of proposals gave
   rise to an OCI. Although the Army responded to this allegation in its
   agency report, CAEL did not address this response in its comments.
   Accordingly, we consider this issue abandoned. See Citrus College; KEI
   Pearson, Inc., B-293543 et al., Apr. 9, 2004, 2004 CPD para. 104 at 8 n.4.
   In any event, as the agency notes, the participation of the parties
   alleged to have an OCI was disclosed in the solicitation, RFP sect. L.11,
   PWS sect. J.4, and the protester raised no objection to their
   participation until CAEL lost the competition.