TITLE: B-310797; B-310797.3, CETENAGROUP, February 14, 2008
BNUMBER: B-310797; B-310797.3
DATE: February 14, 2008
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B-310797; B-310797.3, CETENAGROUP, February 14, 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: CETENAGROUP
File: B-310797; B-310797.3
Date: February 14, 2008
Andrew A. Honegger, Esq., Husch & Eppenberger, LLC, for the protester.
Daniel S. Koch, Esq., David P. Shapiro, Esq., and Tracey L. Perrick, Esq.,
Paley, Rothman, Goldstein, Eig & Cooper Chartered, for Lincoln Group, LLC,
the intervenor.
Lt. Col. David Newsome, Jr., Department of the Army, for the agency.
Nora K. Adkins, Esq., Guy R. Pietrovito, Esq., and James A. Spangenberg,
Esq., Office of the General Counsel, GAO, participated in the preparation
of the decision.
DIGEST
An agency's evaluation of technical proposals is a matter within the
agency's discretion since the agency is responsible for defining its needs
and the best methods for accommodating them.
DECISION
CETENAGROUP protests the award of a contract to Lincoln Group, LLC by the
Department of the Army under request for proposals (RFP) No.
W91B4N-07-R-0060 for services supporting the agency's Joint Improvised
Explosive Device Defeat Organization (JIEDDO) information campaign effort.
We deny the protest.
JIEDDO was established to coordinate efforts among agencies to help
eliminate the threat posed by improvised explosive devices. To this end,
the RFP sought proposals for the synchronized and phased dissemination of
approved billboards, flyers, posters, newspaper advertisements, television
advertisements, radio messages, 60-minute television programs, and video
compact discs in Afghanistan; this campaign seeks to, among other things,
separate "the bomb makers and users from the support of the populace" and
to "encourage the local populace to take responsibility for their
communities and report suspicious activities." Contracting Officer's
Statement at 1; RFP, Statement of Work (SOW), at 18.
Issued under the simplified acquisition procedures of Federal Acquisition
Regulation (FAR) Subpart 13.5, the RFP provided for the award of a
fixed-price, indefinite-delivery, indefinite-quantity contract for a
6-month base period and one 6-month option period. Agency Report (AR) at
3. Offerors were informed that award would be made on the basis of a
cost/technical tradeoff, and the following evaluation factors were
identified: past performance, technical capability, Afghan socioeconomic
plan, and price. The non-cost factors were stated to be of equal
importance and when combined to be significantly more important than the
price. Offerors were also informed that the agency intended to make award
without conducting discussions. RFP at 67.
Sixteen offerors, including the protester and awardee, submitted proposals
in response to the RFP. CETENAGROUP's and Lincoln Group's proposals were
evaluated as follows:
+------------------------------------------------------------------------+
| | CETENAGROUP | Lincoln Group |
|------------------------------+--------------------+--------------------|
|Past Performance | High Confidence | High Confidence |
|------------------------------+--------------------+--------------------|
|Technical Capability | Exceptional | Very Good |
|------------------------------+--------------------+--------------------|
|Afghan Socioeconomic Plan | Very Good | Very Good |
|------------------------------+--------------------+--------------------|
|Price | $17.8 million | $14.3 million |
+------------------------------------------------------------------------+
AR, Tab 23, Source Selection Decision, at 11. The source selection
authority (SSA) concluded that although CETENAGROUP's proposal was rated
higher under the technical capability factor than was Lincoln Group's,
this superior technical evaluation rating did not outweigh Lincoln Group's
$3.5 million price advantage. Id. at 12.
Award was made to Lincoln. Following a debriefing, CETENAGROUP filed an
agency-level protest, which the Army denied. AR at 2. This protest to our
Office followed.
CETENAGROUP argues that Lincoln Group's proposal should have been found to
be unacceptable under the technical capability factor, because Lincoln
Group did not specifically provide a dissemination plan for newspaper
advertisements, which the protester argues was required by the RFP.[1]
Supplemental Protest at 1.
The evaluation of technical proposals is a matter within the agency's
discretion since the agency is responsible for defining its needs and the
best methods for accommodating them. U.S. Textiles, Inc., B-289685.3, Dec.
19, 2002, 2002 CPD para. 218 at 2. Our Office will review a challenge to
an agency's evaluation of a proposal only to determine whether the agency
acted reasonably and in accord with the solicitation's evaluation criteria
and applicable procurement statues and regulations. Manassas Travel, Inc.,
B-294867.3, May 3, 2005, 2005 CPD para. 113 at 2-3. A protester's mere
disagreement with the agency's judgment in its determination of the
relative merits of competing proposals does not establish that the
evaluation was unreasonable. SDS Int'l. Inc., B-291183.4, B-291183.5, Apr.
28, 2003, 2003 CPD para. 127 at 6.
Here, the RFP instructed offerors to address in their proposals under the
technical capability factor the firms' plans to "achieve the widest
dissemination of print, TV, and radio messages." RFP at 65. In this
regard, the SOW described the dissemination of print, radio and television
products. Advertising in a newspaper was but one of the print products
identified in the SOW. SOW at 19-21. In addition to providing a
comprehensive distribution plan, offerors were instructed to provide
product samples of posters, flyers, and newspaper, television, and radio
advertisements. RFP at 68.
The Army found that Lincoln Group's proposal provided a dissemination plan
that addressed print, TV, and radio messages, and in particular exceeded
the RFP's requirements for television media dissemination. The agency also
found that Lincoln Group had provided product samples, including a
newspaper advertisement, which satisfied the RFP requirements. [DELETED].
The SSA also recognized, however, that Lincoln Group did not specifically
address dissemination of newspaper advertisements in its discussion of
print media distribution, which the SSA found was a proposal weakness, and
on this basis assigned Lincoln Group's proposal a "very good" as opposed
to an "excellent" rating under the technical capability factor. AR, Tab
23, Source Selection Decision, at 6.
We find that the agency reasonably evaluated Lincoln Group's proposal in
accordance with the solicitation's evaluation criteria. Although it is
true that Lincoln Group did not specifically address the dissemination of
newspaper advertisements in its print media distribution plan, the firm
otherwise provided a plan that satisfied the solicitation print media
dissemination requirements, including providing an acceptable newspaper
advertisement sample. Therefore, we do not agree with the protester that
the Army acted unreasonably in finding that Lincoln Group's proposal was
acceptable. To the extent that CETENAGROUP believes that Lincoln Group's
proposal should have received a lower evaluation rating under this factor,
we find the protester's arguments to be nothing more than a mere
disagreement with the agency's evaluation, which does not render the
agency's evaluation unreasonable. See SDS Int'l. Inc., supra, at 6.
CETENAGROUP also challenges the Army's evaluation of CETENAGROUP's and
Lincoln Group's proposals under the Afghan socioeconomic plan factor, for
which both proposals received "very good" ratings. CETENAGROUP argues that
its proposal should have been rated superior to Lincoln Group's, because
CETENAGROUP is the "quintessential" Afghan business while Lincoln Group is
an American-owned company that is "0.0% Afghan-owned and has not developed
longstanding business relationships with the Afghan community." Protest at
4.
With respect to this evaluation factor, offerors were instructed to
describe their plans to "maximize the utilization and training of, and
transfer of knowledge, skills and abilities to the Afghan workforce; as
well as the proposed utilization of Afghan subcontractors and businesses."
RFP at 66. In this regard, the solicitation informed offerors that their
proposals would
be evaluated on the planned utilization and training of, and transfer of
knowledge, skills and abilities to the Afghanistan workforce; as well as
the proposed utilization of Afghanistan subcontractors and businesses. The
rating an offeror receives will be determined by the proposal detailing
the combined degree of involvement in the key areas listed below. Offerors
are not required to have involvement in each key area to achieve a
particular rating, and each key area is independent of the others.
Id. at 69. The solicitation identified evaluation ratings from "excellent"
to "unsatisfactory" that a proposal could receive under this factor, and
stated that, a "very good" rating would reflect a proposal that
demonstrated
substantial present and future Afghan participation. Key areas include
Afghan: business ownership, senior and mid-level management, labor,
employee training, and subcontracting. The proposal contains substantial
detail of the various key areas indicated above.
Id.
In its evaluation of proposals, the agency recognized that CETENAGROUP is
wholly Afghan-owned and that Lincoln Group is not, but also recognized
that Lincoln Group had proposed as a team member, [DELETED]. See Lincoln
Group Technical Capability Proposal at 6. CETENAGROUP does not dispute
that [DELETED] in Afghanistan but argues that the Army should nevertheless
not have rated Lincoln Group's proposal as "very good" under this factor
because "subcontracting" was identified as only one of five key areas to
be considered to receive this rating.
We find no basis to object to the agency's evaluation. The agency found
that Lincoln Group's proposal was replete with information demonstrating
its substantial present and future Afghan participation. Not only is
Lincoln Group's teaming partner, [DELETED]. The Army also found that
Lincoln Group's proposal provided detailed information on its [DELETED].
See AR, Tab 23, Source Selection Decision, at 10. Since there is nothing
in the RFP that limits the prime contractor's use of a teaming partner or
subcontractor to satisfy the solicitation requirements, see RFP amend. 2,
at 2, question 4 ("Teaming and/or partnerships are highly encouraged"), we
find that the agency's assignment of "very good" to Lincoln Group's
proposal was reasonable.
CETENAGROUP also complains that it was misled when, before the receipt of
proposals, the Army amended the RFP to reduce the stated maximum contract
value from $20 million to $11 million.[2] See RFP amend. 2, at 5, question
18. CETENAGROUP contends that it was informed by the Army, in response to
CETENAGROUP's inquiry, that reducing the maximum contract value should
have no impact on the offeror's pricing, and that this caused CETENAGROUP
to not propose a lower price. Protest at 8-10. CETENAGROUP also complains
that the Army unreasonably did not "mold its evaluation to accommodate its
last minute change in reducing the maximum to $11 million." Comments at 4.
We find, even viewing the protester's arguments in a light most favorable
to CETENAGROUP, that CETENAGROUP fails to demonstrate a reasonable
possibility of prejudice, which is a requirement of every viable protest.
See Joint Mgmt. & Tech. Servs., B-294229, B-294229.2, Sept. 22, 2004, 2004
CPD para. 208 at 7. Here, CETENAGROUP has provided nothing more than a
general assertion that it could have lowered its proposed price by some
unspecified amount. Given Lincoln Group's $3.5 million price advantage, we
find that this does not satisfy the protester's obligation to show a
reasonable possibility that it was competitively prejudiced.
To the extent that the protester contends that the agency failed to adjust
the RFP's price evaluation scheme to conform to the reduced contract
value, this argument is untimely. As noted above, RFP amend. 2, which
reduced the maximum contract value from $20 million to $11 million, was
issued prior to the closing date for the receipt of initial proposals. Our
Bid Protest Regulations require that a protest based upon alleged
improprieties in a solicitation that are apparent prior to the closing
time for receipt of initial proposals be filed before that time. 4 C.F.R.
sect. 21.2(a)(1) (2007).
The protest is denied.
Gary L. Kepplinger
General Counsel
------------------------
[1] CETENAGROUP also challenged the agency's assignment of a "high
confidence" rating for Lincoln's past performance. Because the agency
responded to these allegations in its report and the protester did not
address the Agency's response in the firm's comments, we consider this
protest ground to be abandoned. Dynamic Instruments, Inc., B-291071, Oct.
10, 2002, 2002 CPD para. 183 at 4.
[2] FAR sect. 13.500(e) provides that simplified acquisition procedures
may be used for acquisitions that do not exceed $11 million where the
acquisition is for commercial items that, as determined by the head of the
agency, are to be used in support of a contingency operation or to
facilitate the defense against or recovery from nuclear, biological,
chemical, or radiological attack.