TITLE: B-310210, Strategic e-Business Solutions, Inc., November 8, 2007
BNUMBER: B-310210
DATE: November 8, 2007
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B-310210, Strategic e-Business Solutions, Inc., November 8, 2007

   Decision

   Matter of: Strategic e-Business Solutions, Inc.

   File: B-310210

   Date: November 8, 2007

   Howard Folkes for the protester.

   Jeffri Pierre, Esq., Department of Health and Human Services, 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. Agency reasonably concluded that protester had failed to demonstrate
   that it had a subcontracting agreement in place for a required area of
   expertise where purported subcontracting agreement did not describe the
   type of services to be furnished by the subcontractor or the price terms
   and there was no evidence that subcontractor's offer of services had been
   accepted by the protester.

   2. Where agency conducted discussions that reasonably led protester into
   the area of its proposal requiring amplification, agency was not required
   to conduct additional discussions once it determined that proposal, as
   revised, remained informationally deficient.

   DECISION

   Strategic e-Business Solutions, Inc. (SeBS) protests the rejection of the
   proposal that it submitted in response to request for proposals (RFP) No.
   CMS-2007-8A-0006, issued by the Centers for Medicare and Medicaid
   Services, Department of Health and Human Services, for the development of
   materials to be used to train customer service representatives in
   responding to Medicare beneficiary inquiries. The protester takes issue
   with the evaluation of its proposal.

   We deny the protest.

   The RFP provided for an initial screening of proposals on a pass/fail
   basis to determine their compliance with a solicitation requirement
   pertaining to experience.[1] The proposals that passed the factor were
   then to be evaluated on the basis of multiple additional factors
   (technical understanding, management plan, optional tasks, personnel
   qualifications, corporate experience, past performance, and cost/price),
   while the proposals that failed the factor were to be excluded from
   further consideration. The experience factor provided as follows:

     The prime contractor and/or its subcontractors proposing under this
     contract shall demonstrate that it has provided integrated training,
     content, and quality monitoring services in a multi-channel contact
     center servicing Medicare beneficiaries. The contractor shall have
     experience with the current CMS Next Generation Desktop (NGD)
     functionality and an understanding of the build process in order to
     provide actionable recommendations as they relate to the NGD or any of
     its integrated components.

     Note: This requirement may be met with a combination of experience from
     the prime and subcontractor(s) and/or the prime may use experience
     across multiple legal entities that are owned under a single corporate
     umbrella. . . . Subcontracting agreements and the establishment of new
     legal entities must be final at the time of proposal submission.

   RFP at 76. Offerors were instructed to demonstrate their compliance with
   the foregoing requirements by (1) providing a narrative summary explaining
   their compliance, (2) furnishing copies of "formal subcontracting teaming
   agreements" and documentation substantiating any new legal entities, and
   (3) citing specific examples demonstrating their compliance with the above
   requirements. Id. at 66-67.

   SeBS submitted its proposal by the August 2, 2007 closing date. In its
   proposal, the protester represented that "SeBS consultants" (whom it did
   not further identify) had NGD experience. After reviewing SeBS's proposal,
   the contracting officer advised the protester that it had not furnished
   sufficient information to achieve a rating of pass under the experience
   requirement and that it needed to clarify how its team satisfied the
   requirement. Of particular relevance to this protest, the contracting
   officer asked SeBS to clarify its team's experience with NGD functionality
   and to identify the consultants that it would be using to meet the
   requirement for NGD experience. He also asked SeBS to clarify whether the
   consultants were being proposed as part of the SeBS team.

   SeBS responded to the agency's request for additional information by
   noting that it had "negotiated consulting support from" a company with NGD
   experience.[2] Protester's Aug. 16, 2007 Response to the Agency at 7. SeBS
   included with its response a copy of a letter addressed to SeBS by the
   company. The letter, termed a "contracting service agreement," stated
   that, upon award of a contract under the RFP to SeBS, the company
   "offered" to provide the protester with professional services in support
   of the contract "on an as requested basis after discussion and mutual
   agreement on a defined set of services to be delivered by [the company]."
   Id. at 1. The letter further provided that rates and fees would be
   negotiated after the contract had been awarded. The words "Accepted on
   behalf [of] Strategic e-Business Solutions, Inc." had been typed at the
   bottom of the letter, but no signature had been entered in the blank above
   the words.[3]

   After reviewing SeBS's response, the contracting officer advised the
   protester that it had not furnished sufficient information to demonstrate
   that it had NGD experience, and, accordingly, that its proposal had failed
   the initial screening and would not be considered further. In a
   subsequently furnished debriefing, the contracting officer explained that
   it was not the knowledge and experience of SeBS's named proposed
   consultant that the agency questioned, but rather, SeBS's failure to
   demonstrate that it had an "active subcontracting agreement" with the
   company. Debriefing Letter at 3.

   SeBS protested to our Office on September 7, arguing that the agency had
   applied an unstated evaluation criterion in rejecting its proposal for
   failing to furnish a fully-negotiated subcontracting agreement. SeBS
   maintains that all that the solicitation required was a written agreement
   to enter into a subcontract (as opposed to a partnership or joint venture)
   with its proposed consultant, not a "fully negotiated subcontract with
   prices." Comments at 4.

   Contrary to the protester's position, the RFP required more than written
   evidence of an agreement to enter into a subcontract; the RFP language
   quoted above clearly provided that any subcontracting agreements on which
   an offeror relied to establish the required experience had to be "final"
   at the time of proposal submission. The letter from the consultant
   provided by SeBS failed to furnish any detail whatsoever regarding the
   services to be delivered, stating only that the consultant would provide
   "professional services" to SeBS in support of the contract "after
   discussion and mutual agreement on a defined set of services to be
   delivered" by the consultant. Similarly, the letter left open the price
   terms of any agreement, stating that the consultant's "rates and fees will
   be negotiated once the contract has been awarded." Further, as noted
   above, the version of the letter furnished by the protester to the agency
   did not contain a signature by an SeBS representative; thus, there was no
   evidence that the two parties had in fact entered into an agreement. Given
   the general nature of the letter and its lack of specificity regarding
   basic terms, we think that the agency reasonably concluded that SeBS
   failed to demonstrate that it had a final subcontracting agreement in
   place to establish the required NGD experience that SeBS itself was
   missing, as required by the RFP.

   Next, the protester argues that the agency failed to conduct meaningful
   discussions with it by failing to advise it that the documentation that it
   had submitted was insufficient to establish that it had entered into a
   subcontracting agreement covering NGD expertise. The protester is in
   essence arguing that after notifying it that it had not adequately
   addressed the issue of NGD experience in its initial proposal and giving
   it the opportunity to submit additional information, the agency had an
   obligation to notify it and permit it to submit still more information
   once the agency determined that the additional information submitted by
   the protester was still insufficient.

   We disagree. While it is true that when an agency engages in discussions
   with an offeror, those discussions must be meaningful, meaning that they
   must lead the offeror into the areas of its proposal requiring correction
   or amplification, the requirement for meaningful discussions does not
   obligate an agency to continue to conduct successive rounds of discussions
   until all proposal defects have been corrected. Metson Marine Servs.,
   Inc., B-299705, July 20, 2007, 2007 CPD para. 159 at __; Metro Mach.
   Corp., B-295744, B-299744.2, Apr. 21, 2005, 2005 CPD para. 112 at 19.
   Here, the questions posed by the agency were clearly sufficient to place
   the protester on notice that it needed to furnish further information
   regarding the consultant(s) that it would be using to meet the requirement
   for NGD experience and their status vis-`a-vis the SeBS team. Once the
   agency had determined that the additional information furnished by the
   protester in response to its questions was still insufficient to
   demonstrate that SeBS had entered into a subcontracting agreement for NGD
   expertise, the agency was under no obligation to give the protester
   another opportunity to cure the informational deficiency. See OMV Med.,
   Inc., B-281490, Feb. 16, 1999, 99-1 CPD para. 38 at 7.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] The solicitation contemplated the award of a cost-plus-fixed-fee
   contract for a 3-month transition period, a 15-month base period, and four
   1-year option periods.

   [2] The protester named the company in its response, but we have not
   included this information in our decision because the protester has
   identified it as confidential.

   [3] SeBS furnished a copy of the subcontractor's letter to our Office as
   an attachment to its protest; this version of the letter does contain a
   signature in the blank over the words "Accepted on behalf of Strategic
   e-Business Solutions, Inc." Since the signature did not appear on the
   version of the letter furnished to the agency, we can only conclude that
   the signature was entered after the protester had furnished the agency
   with a copy of the letter.