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.