TITLE: B-310564, Gap Solutions, Inc., January 4, 2008
BNUMBER: B-310564
DATE: January 4, 2008
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B-310564, Gap Solutions, Inc., January 4, 2008

   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: Gap Solutions, Inc.

   File: B-310564

   Date: January 4, 2008

   Lars E. Anderson, Esq., Peter A. Riesen, Esq., Keir X. Bancroft, Esq., and
   Patrick R. Quigley, Esq., Venable LLP, for the protester.

   Jerome S. Gabig, Esq., for Total Solutions, Inc., an intervenor.

   Elise Harris, Esq., Department of Health and Human Services, for the
   agency.

   Scott H. Riback, Esq., David A. Ashen, Esq., and John M. Melody, Esq.,
   Office of the General Counsel, GAO, participated in the preparation of the
   decision.

   DIGEST

   Protest that agency's point scoring scheme was not sufficiently sensitive
   to highlight the distinctions among technical proposals is denied where
   record shows source selection decision was based on detailed narrative
   evaluation materials that reflected relative strengths and weaknesses of
   competing proposals, and protester raises no substantive challenge to
   agency's evaluation findings; point scores are merely guides to
   intelligent decision making and, absent a legitimate challenge to agency's
   underlying substantive findings, there is no basis to object to evaluation
   on basis of the point scoring.

   DECISION

   GAP Solutions, Inc. (GAP) protests the award of a contract to Total
   Solutions, Inc. under request for proposals (RFP) No. 2006-N-09171, issued
   by the Centers for Disease Control and Prevention for domestic technical,
   operational and professional services. GAP maintains that the technical
   evaluation scheme used by the agency improperly failed to highlight the
   distinctions among the proposals, and that the agency misevaluated the
   awardee's price proposal.

   We deny the protest.

   The RFP contemplated the award of an
   indefinite-delivery/indefinite-quantity, firm-fixed price labor hours
   contract (with cost reimbursable line items to cover other direct costs
   (ODC) such as travel) to perform various services for the Coordinating
   Center for Global Health for a period of 5 years from the date of award.
   The RFP advised that the agency intended to make award on a "best value"
   basis, with technical factors being given greater consideration than
   price. The RFP further advised, however, that, if the technical proposals
   were determined to be essentially equal, price would govern the agency's
   source selection decision. For evaluation purposes, the RFP provided that
   proposals would be scored using a 420 point scale, with 100 points
   allocated to the evaluation of the proposal overall,[1] 100 points
   allocated to the offerors' responses to each of three task orders,[2] and
   20 points allocated to past performance. RFP sect. M (as amended by
   Amendment 3).

   For price evaluation purposes, offerors were required to prepare pricing
   sheets for each of the three sample task orders that showed proposed
   direct labor costs, fringe benefit costs, overhead costs, general and
   administrative (G&A) costs, and fee or profit. RFP attach. J.8 (as amended
   by Amendment 3). For purposes of preparing their business (price)
   proposals, the offerors also were provided prescribed ODC that were to
   reflect the cost reimbursable elements of their prices; for task order No.
   1, the ODC specified was $250, for task order No. 2, the ODC was $12,000,
   and for task order No. 3, the ODC was $10,000. RFP attach. J.5-J.7 (as
   amended by Amendment 3). Notwithstanding the required detail in the task
   order pricing that was to be submitted, the RFP advised that the agency
   would evaluate proposed prices using price analysis, which the RFP defined
   as the process of examining and evaluating a proposed price without
   evaluating its separate cost elements and proposed profit. RFP sect. M (as
   amended by Amendment 3).

   The agency received nine proposals. After evaluation of the initial
   proposals, the agency included four in the competitive range. Thereafter,
   the agency engaged in discussions with the competitive range offerors and
   obtained final proposal revisions (FPR). After evaluating the FPRs, the
   agency assigned the proposals the following scores:

   +------------------------------------------------------------------------+
   |    Offeror    |Technical Score/Percentage|Adjectival Rating|   Price   |
   |               |   of Available Points    |                 |           |
   |---------------+--------------------------+-----------------+-----------|
   |Offeror A      |325/77.38 percent         |Technically      |$563,292.00|
   |               |                          |Acceptable       |           |
   |---------------+--------------------------+-----------------+-----------|
   |GAP Solutions  |322.5/76.79 percent       |Technically      |$387,997.20|
   |               |                          |Acceptable       |           |
   |---------------+--------------------------+-----------------+-----------|
   |Offeror B      |318.33/75.79 percent      |Technically      |$398,429.32|
   |               |                          |Acceptable       |           |
   |---------------+--------------------------+-----------------+-----------|
   |Total Solutions|314.16/74.8 percent       |Technically      |$380,105.68|
   |               |                          |Acceptable       |           |
   +------------------------------------------------------------------------+

   Agency Report (AR), Legal Memorandum, at 4. Finding that all four
   competitive range proposals were technically equal, the agency made award
   to Total Solutions on the basis of its low price. After receiving a
   debriefing, GAP protested to our Office.[3]

   GAP asserts that the agency's proposal scoring scheme was flawed in that
   it essentially "negated" the technical distinctions among the proposals.
   In this respect, the record shows that the agency evaluated proposals by
   assigning numeric scores between 0 and 5 points for each of the 13
   evaluation subfactors, and then multiplied the raw score by the weight
   assigned to each of the subfactors to arrive at weighted scores. According
   to the protester, because all of the acceptable proposals (that is,
   proposals that it describes as likely to have been included in the
   competitive range) would in practice be assigned raw numeric scores of
   either 3 or 4, the effect was to artificially narrow the range of possible
   total scores, such that it would appear from the numeric scores that all
   of the proposals were technically equal. According to the protester, this
   effectively left the source selection to be based on low price rather than
   on technical considerations which were to have received paramount
   consideration under the terms of the RFP.

   This argument is without merit. It is well established that ratings, be
   they numerical, adjectival, or color, are merely guides for intelligent
   decision making in the procurement process. Business Consulting Assocs.,
   LLC, B-299758.2, Aug. 1, 2007, 2007 CPD para.134 at 4. Where the
   evaluators and source selection official reasonably consider the
   underlying bases for the ratings, including advantages and disadvantages
   associated with the specific content of competing proposals, in a manner
   that is fair and equitable and consistent with the solicitation, a
   protester's disagreement over the actual adjectival or numeric ratings
   assigned essentially is inconsequential in that it does not affect the
   reasonableness of the judgments made in the source selection decision. Id.

   The record here shows that the agency performed an evaluation of the
   proposals consistent with the RFP evaluation factors and prepared detailed
   narrative materials reflecting the evaluators' findings. AR exhs. D12,
   D19. The record also shows that those findings were specifically
   considered in detail by the agency's source selection official in making
   the agency's award decision. Indeed, because the scoring was so close
   among the four proposals, the source selection official expressly queried
   the evaluators "to determine if there was a proposal that contained
   technical aspects that would clearly set it apart from any of the other
   ones." AR exh. G7, Source Selection Decision, at 8. The technical panel
   concluded that no proposal had technical advantages or discrepancies that
   would set it apart from the other proposals and, as a result, the
   proposals were determined to be technically equal.

   GAP does not challenge any of the agency's underlying substantive findings
   with respect to the relative merits of the competing proposals. The
   protester does not, for example, allege that the agency unreasonably
   failed to identify strengths that were present in its proposal or
   unreasonably identified weaknesses that were not present; nor does it
   challenge the agency's underlying findings with respect to the other
   proposals in the competitive range, including the awardee's. Moreover, GAP
   also has not alleged or demonstrated that it should have been assigned
   higher numeric scores, or that the awardee should have been assigned lower
   numeric scores, based upon the strengths or weaknesses identified by the
   agency in its evaluation. In these circumstances, given the absence of any
   substantive challenge to the agency's detailed narrative evaluation
   findings, we simply have no basis to question the agency's evaluation
   results. We therefore deny this aspect of GAP's protest.

   GAP asserts that the agency misevaluated Total Solutions's business
   proposal in that it failed to account for certain costs for which Total
   Solutions is likely to bill the government under the contract. According
   to the protester, the Total Solutions business proposal expressly provides
   for application of the firm's G&A rate to the cost reimbursable ODC
   component of the contract, as well as to the rates billed by its
   subcontractors. GAP also asserts that the Total Solutions proposal
   contemplates application of a [deleted] percent fee or profit, as well as
   the inclusion of fees it may have to pay to travel agents or recruiters to
   find qualified personnel. The protester concludes that the price advantage
   identified by the agency in favor of Total Solutions is illusory.

   We dismiss this aspect of the protest. As noted, the RFP directed offerors
   to use preestablished amounts for ODC in preparing their responses to the
   sample task orders. In addition, the RFP pricing form for each sample task
   order required submission of a single total loaded labor rate (including
   the fringe, overhead, G&A and profit components of that rate) for the
   single labor category to be furnished under each task order, with no
   provision in the form for differentiating prime contractor from
   subcontractor labor rates. Moreover, the RFP expressly provided that the
   agency would confine its evaluation to price analysis techniques,
   specifically stating that "cost/price will be evaluated on the basis of
   price analysis which is defined as the process of examining and evaluating
   a proposed price without evaluating its separate cost elements and
   proposed profit." RFP, sect. M1 (as amended by Amendment 3. The record
   shows that the agency evaluated the business proposals in a manner that
   was consistent with the terms of the RFP, which did not provide for an
   evaluation of the individual cost components of the proposals, as
   advocated by GAP. To the extent that GAP thought such an evaluation
   approach was inappropriate, it should have raised the matter prior to the
   deadline for submitting proposals, since our Bid Protest Regulations
   require that protests based upon solicitation improprieties must be filed
   prior to the deadline for submitting proposals. 4 C.F.R. sect. 21.2(a)(1)
   (2007).

   In its comments responding to the agency's supplemental report, GAP
   asserted for the first time that the agency misevaluated Total Solutions's
   proposal by failing to take into account the fact that its technical
   proposal contemplates the use of subcontractors, but its business proposal
   did not include any costs for subcontractors. According to the protester,
   Total Solutions was given credit in the agency's technical evaluation for
   its use of subcontractors, even though its business proposal appears not
   to have included the costs for those subcontractors.

   This aspect of GAP's protest is untimely. GAP received Total Solutions's
   entire proposal, as well as the record of the agency's evaluation, when
   the agency submitted its initial report; consequently, any assertions
   arising from those materials had to be filed within 10 days of GAP's
   receipt of the agency report. 4 C.F.R. sect. 21.2(a)(2). Since GAP did not
   raise this assertion until it filed its supplemental comments, more than
   10 days after its receipt of these materials, we dismiss this aspect of
   its protest as untimely.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] The 100 points allocated to the proposal overall were equally divided
   among four subfactors: technical approach/understanding of the
   requirement, personnel expertise/management plan, corporate
   experience/capabilities, and financial capabilities. RFP sect. M (as
   amended by Amendment 3).

   [2] Each task order evaluation factor included three subfactors: technical
   approach/understanding of the requirement (worth up to 25 points),
   personnel expertise/management plan (worth up to 25 points), and corporate
   experience/capabilities (worth up to 50 points). RFP sect. M (as amended
   by Amendment 3).

   [3] In its initial protest, GAP asserted that the agency failed to adhere
   to the stated evaluation criteria because it did not give paramount weight
   to the technical considerations, in contravention of the terms of the RFP;
   that the agency misevaluated proposals; and that the agency did not engage
   in adequate discussions with GAP. The agency responded to these assertions
   in its report. In its comments on the report, GAP made no mention of any
   of these assertions and instead advanced two new arguments (discussed
   below). We therefore deem the above original assertions abandoned. Citrus
   College; KEI Pearson, Inc., B-293543 et al., Apr. 9, 2004, 2004 CPD para.
   104 at 8 n.4.