TITLE: B-311126, B-311126.2, B-311126.3, B-311126.4, Savannah River Alliance, LLC, April 25, 2008
BNUMBER: B-311126, B-311126.2, B-311126.3, B-311126.4
DATE: April 25, 2008
******************************************************************************************
B-311126, B-311126.2, B-311126.3, B-311126.4, Savannah River Alliance, LLC, April 25, 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: Savannah River Alliance, LLC
File: B-311126, B-311126.2, B-311126.3, B-311126.4
Date: April 25, 2008
Kenneth B. Weckstein, Esq., Tammy Hopkins, Esq., Pamela A. Reynolds, Esq.,
and Amy T. Kingston, Esq., Brown Rudnick Berlack Israels, LLP, for the
protester.
James J. McCullough, Esq., Deneen J. Melander, Esq., Steven A. Alerding,
Esq., and William S. Speros, Esq., Fried, Frank, Harris, Shriver &
Jacobson, LLP, for Savannah River Nuclear Solutions, LLC, an intervenor.
H. Jack Shearer, Esq., Charmaine A. Howson, Esq., Timothy P. Fischer,
Esq., and Jeffrey Galan, Esq., Department of Energy, for the agency.
Sharon L. Larkin, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Agency's selection of higher-priced, higher-rated proposal for award is
reasonable, where the key discriminator between proposals was under the
key personnel factor, which was one of the most heavily weighted factors
in the evaluation and was "critical" to successful performance, and where
the agency reasonably concluded that awardee's superior key personnel were
worth the additional price; protester's disagreement with the evaluation
of multiple other factors and subfactors does not render the evaluation
unreasonable.
2. Allegation that a key personnel reference had a personal conflict of
interest that tainted the evaluation of key personnel is denied, where the
reference was provided by the offeror and did not have an official role in
the procurement, and the information provided by the reference had no
impact on the evaluation.
3. Allegation that organizational conflicts of interest exist due to the
employment of several of the awardee's key personnel is denied, where any
conflict, if it exists, is personal to the employees, and not the
organization, and is too speculative to impute to their employers.
DECISION
Savannah River Alliance, LLC (SRA) protests the award of a contract to
Savannah River Nuclear Solutions, LLC (SRNS), issued by the Department of
Energy (DOE) under request for proposals (RFP) No. DE-RFP09-06SR22470 for
the management and operation of the Savannah River Site, a DOE-owned
facility in South Carolina. SRA alleges myriad evaluation errors.
We deny the protest.
BACKGROUND
The Savannah River Site is a 310-square-mile industrial complex in the
southern part of South Carolina adjacent to the Savannah River. The site
is dedicated to environmental management cleanup, developing and deploying
technologies to support the cleanup mission, providing capability for
supporting the enduring nuclear weapons stockpile, and processing and
storing nuclear materials in support of the United States' nuclear
non-proliferation effort. RFP sect. C-1.1. DOE's Office of Environmental
Management is the landlord for the site and, since 1989, has contracted
with Washington Savannah River Company (WSRC) to manage and operate the
site. Agency Report (AR), Tab B.2, Source Evaluation Board (SEB) Report,
at 2.
The RFP sought to restructure the workscope of the predecessor contract
and implement a performance-based contract, whereby the selected
contractor would provide all of the "personnel, facilities, equipment,
materials, supplies, and services" necessary to manage and operate the
site and its mission activities. RFP sect. C-1.2. Included in the RFP's
scope of work are environmental closure activities (soil and water
remediation, deactivation and decommissioning, solid waste handling, and
nuclear materials management), Savannah River National Laboratory (SRNL)
activities,[1] National Nuclear Security Administration (NNSA)
activities[2] (tritium[3] operations, nuclear nonproliferation, and
radiological assistance), and landlord/site services (environmental,
safety, and health [ES&H], engineering and construction, operations
support, and business services). RFP sect. C-3; AR, Tab E.1, Source
Selection Decision, at 1. The RFP advised offerors to "challenge the
status quo and existing paradigms in formulating and implementing safe,
high quality, timely, and cost-effective programs and operations" at the
site and encouraged the use of "innovative methods of accomplishing this
Scope of Work consistent with the most efficient and effective means of
performance." Safety, also, was identified as an "integral part of mission
accomplishment" and offerors were advised to "systematically integrate
safety, security, and environmental protection into management and work
practices at all levels" of performance. RFP sect. C-1.2.
The RFP provided for the award of a cost-plus-award-fee contract for a
5-year base period with one 5-year option. Id. sect. B-2.3. Award was to
be made on a best-value basis, considering key personnel (worth 25 percent
of the non-price portion of the evaluation), organizational structure and
management approach (25 percent), technical management approach (20
percent), ES&H (15 percent), past performance (7.5 percent), relevant
experience (7.5 percent), and cost and fee. Id. sect. M-2. Key personnel,
which was one of the most important evaluation factors, was to be
evaluated based on written proposal submissions (including resumes,
reference checks, and letters of commitment) and oral presentations during
which the offerors' key personnel would be asked to respond to three
managerial problems. The remaining factors were to be evaluated based on
written proposals. Cost and fee were to be evaluated for reasonableness
and realism, based on the evaluated key personnel compensation costs for
the first 2 years of contract performance and fee for the entire potential
10 years of contract performance. Id. The RFP stated that the non-price
factors were "significantly more important than" price, and advised that
DOE was "more concerned with obtaining a superior [m]anagement and
[b]usiness proposal[4] than making an award at the lowest evaluated
price." Id. sect. M-3.
The RFP required the selected contractor to be devoted entirely to this
contract; the contractor was prohibited from performing any other
commercial or government work for the duration of the contract, and was
required to be established as a separate corporate entity from its parent
company. Id. sect. H-41. To satisfy this requirement, SRA and SRNS were
formed as new corporate entities. SRA was comprised of corporate
affiliates of the incumbent WSRC team: Washington Group International,
Inc.; Bechtel National, Inc.; CH2MHill Constructors, Inc.; BWXT Services,
Inc.; and subcontractor Battelle-Savannah Rivers, LLC. SRNS was comprised
of Fluor Federal Services, Inc.; Newport News Shipbuilding and Drydock
Company (a Northrop Grumman Newport News business unit); Honeywell
International, Inc.; subcontractor teaming partner Lockheed Martin
Services, Inc.; and subcontractor Nuclear Fuel Services, Inc. Contracting
Officer's Statement at 1 n.1; AR, Tab B.2, SEB Report, at 14.
Both offerors submitted proposals in response to the RFP, and their key
personnel participated in oral presentations. The SEB evaluated each
offeror's proposal under each of the evaluation factors, noted a variety
of "significant strengths," "strengths," and "weaknesses" for each
proposal, and assigned proposals the following adjectival ratings:
+------------------------------------------------------------------------+
| | SRA | SRNS |
|----------------------------------------------+------------+------------|
|Key Personnel (25%) | Good | Excellent |
|----------------------------------------------+------------+------------|
|Organizational Structure & Management Approach| Good | Good |
|(25%) | | |
|----------------------------------------------+------------+------------|
|Technical Management Approach (20%)[5] | | |
|----------------------------------------------+------------+------------|
| |EM Closure Activities | Good | Good |
| |--------------------------------------+------------+------------|
| |SRNL Activities | Excellent | Excellent |
| |--------------------------------------+------------+------------|
| |NNSA Activities | Good | Good |
| |--------------------------------------+------------+------------|
| |Landlord Services & Site Support | Good | Good |
|----------------------------------------------+------------+------------|
|ES&H (15%) | Good | Good |
|----------------------------------------------+------------+------------|
|Past Performance (7.5%) | Good | Good |
|----------------------------------------------+------------+------------|
|Relevant Experience (7.5%) | Excellent | Excellent |
|----------------------------------------------+------------+------------|
|Evaluated Price |$424,859,509|$473,146,404|
+------------------------------------------------------------------------+
AR, Tab E.1, Source Selection Decision, at 4.
The SEB compared proposals under the various factors and subfactors and
described several areas of distinction, but concluded overall that the
proposals were "substantially equivalent" under all but the key personnel
factor. For that factor, the SEB concluded that while the two offerors
proposed chief executives and laboratory directors who had "substantially
equivalent" experience, the rest of SRNS's key personnel had more
"extensive experience," which the SEB found "important" to meet the
performance expectations in the contract. In addition, the SEB concluded
that the SRNS team performed better during the oral presentation; as the
SEB stated, "SRA did not function as an integrated team and overall was
less interactive than the SRNS team," whereas the SRNS team performed more
"effectively, efficiently[,] and seamlessly together[,] with all personnel
engaged in some aspect of problem solving, response development and/or
presentation for all three [managerial] problems." AR, Tab B.2, SEB
Report, at 19-20.
The SEB reported its findings to the source selection authority (SSA), who
agreed with most of the SEB's conclusions. For example, the SSA found "no
significant discriminators" between the two proposals under the
organizational structure and management approach, technical management
approach, ES&H, past performance, or relevant experience factors. The SSA
acknowledged that while there were "differing technical approaches and
strengths" in each proposal, as was documented by the SEB, there were "no
discernable advantages between offerors" under these evaluation factors.
AR, Tab E.1., Source Selection Decision, at 5.
However, for the key personnel factor, the SSA disagreed in part with the
SEB's conclusions. Specifically, the SSA disagreed with the SEB's finding
that the experience of the offerors' chief executives was substantially
equivalent. The SSA found a "substantial difference in the magnitude of
[the chief executives'] past responsibilities" that persuaded the SSA to
conclude that SRNS's chief executive provided a "greater range of
demonstrated performance" when compared to SRA's chief executive. This,
coupled with the "extensive and diverse" experience of the other members
of the SRNS key personnel team, and the superior performance of the SRNS
team during oral presentations, led the SSA to conclude that the SRNS team
would be better able to satisfy the scope of work and provide the best
value to the government. Id. at 6. As the SSA stated:
It is my determination that the superior executive team proposed by
SRNS, with their broader level of federal and commercial experience will
challenge the status quo, drive innovation[,] and significantly improve
overall site productivity. Based on my experience, a highly capable and
high performing senior executive management team is a highly significant
factor in achieving productivity improvements and successful problem
solving on DOE sites. The SRNS leadership team's ability to bring in
relevant lessons learned as a result of their broader experience base
increases the likelihood that innovative practices will be successfully
implemented that will result in work being accomplished more
efficiently.
The [Savannah River Site] is at a critical juncture in its evolution
with the implementation of a program strategy that will increase the
number of prime contractors on site as well as increase the performance
risk for the [management and operations] contractor. Key personnel are
critical to successfully and safely manag[ing] the various critical
[site] programs and the change ahead for [the site] which requires the
best and brightest management team. Consequently, that is why the key
personnel criterion was assigned the relatively high weight of 25%.
Therefore, I believe the advantages in leadership, innovation,
efficiency, and productivity improvements possible through the superior
SRNS Key Personnel team as compared to the SRA team more than outweigh
the evaluated price differential of $48.3 million over ten years or $4.8
million per year.
Id. at 7-8. Award was made to SRNS and this protest followed.
DISCUSSION
SRA complains that the agency should have rated SRA's proposal higher, and
SRNS's proposal lower, under each of the evaluation factors. SRA contends
that the assessment of strengths and weaknesses in the SEB report was
unreasonable, unfair, and inconsistent with the RFP. SRA asserts that the
source selection decision is flawed because the SSA did not fully consider
or document the numerous asserted advantages that SRA's proposal offers
over SRNS's.[6]
In reviewing protests of an agency's evaluation, our Office does not
reevaluate proposals, but instead examines the record to determine whether
the agency acted reasonably and in accord with the solicitation's
evaluation criteria and applicable procurement statutes and regulations.
Cherry Road Techs.; Elec. Data Sys. Corp., B-296915 et al., Oct. 24, 2005,
2005 CPD para. 197 at 6. A protester's mere disagreement with the agency's
judgment is not sufficient to establish that an agency acted unreasonably.
Id.
In its protest, SRA selectively identifies some of the SEB's comments in
the final report, or isolated comments of a technical advisor or
evaluator, and contends that these comments should have resulted in lower
ratings for SRNS's proposal and higher ratings for SRA's proposal.
However, as discussed below, these arguments ignore the many other
comments that support the agency's evaluation conclusions. In response to
the protest, DOE provided a detailed record of its evaluation and source
selection decision, which shows that the agency evaluated the relative
merits of the proposals and assessed ratings in a fair and impartial
manner consistent with RFP. Although the source selection decision may not
have discussed each and every asserted strength and weakness as the
protester would have liked, or agreed with the protester as to the
significance of certain identified strengths or weaknesses, the record
demonstrates that the SEB and SSA considered all of the information
available, and issued a well-reasoned and rational SEB report and source
selection decision that fairly highlighted the key discriminators among
the offerors' proposals. SRA disagrees with the conclusions regarding key
discriminators, but as noted above, mere disagreement with the agency's
conclusions is insufficient to sustain a protest. Cherry Road Techs.;
Elec. Data Sys. Corp., supra, at 6. Based on our review of the record,
including the agency's discussion and assessment of relative advantages
and disadvantages associated with the specific content of proposals, we
find the evaluation to be reasonable. Specific challenges raised by SRA
are discussed more fully below.[7]
Key Personnel Factor
SRA contends that its key personnel should have been rated superior to
SRNS's. As stated above, the evaluation of key personnel included the
evaluation of the offerors' written submissions (including resumes,
reference checks, and letters of commitment) and the offerors' responses
to three managerial problems during oral presentations. The RFP stated
that the written submissions would be evaluated "for the extent of [the
key personnel's] qualifications and experience with respect to the
functions they are proposed to manage." Oral presentations were to be
evaluated to determine, among other things, "[w]hether the Offeror's
management team understands the management challenges created in the
problems," the "observed interaction and participation of the Offeror's
Key Personnel in dealing with the presented problems as an integrated
team," and the "quality and effectiveness of communicating the response."
RFP sect. M-2(a)(1) and (2).
The RFP identified two required key personnel (chief executive and SRNL
director); the selection of all other key personnel was left to each
offeror's discretion. Id. sect. M-2(a)(1). SRA proposed [REDACTED] key
personnel, and SRNS proposed [REDACTED]. SRA's key personnel consisted of
persons that possessed DOE and site-specific experience; some had worked
at the site under the incumbent contract. SRNS's key personnel had a
broader range of experience managing projects and programs with broad
scopes and complexity, including projects at DOE, in the commercial
sector, and other government agencies. AR, Tab B.2, SEB Report, at 20. In
accordance with the RFP, the SEB evaluated each position and specifically
discussed elements of each person's background and experience in its
report. The SEB identified 6 significant strengths and 8 strengths for
SRA's key personnel, and 11 significant strengths and 4 strengths for
SRNS's key personnel. The SEB did not assess any formal weaknesses to
either offeror's key personnel under this factor, but noted weaknesses
throughout its report to explain why a particular key personnel position
was rated only a strength instead of a significant strength.[8]
As stated above, the SSA concluded that, overall, SRNS' key personnel were
superior to SRA's, largely because the agency determined that the broader,
more diverse experience of SRNS's key personnel (especially with regard to
SRNS's chief executive) was more advantageous to accomplishing the RFP's
requirements, and the SRNS team performed better during the oral
presentations. AR, Tab E.1, Source Selection Decision, at 6-8.
SRA protests the SSA's favorable recognition of the diverse backgrounds of
the SRNS key personnel, especially with regard to the chief executive
position. According to SRA, the SSA should have given more favorable
consideration to DOE and site-specific experience; "diversity of
experience," the protester argues, is an unstated evaluation criteria.
Protest at 27-28. However, the RFP did not require DOE or site-specific
experience, or suggest that incumbency would result in more advantageous
evaluation ratings. Rather, the RFP contemplated a broad scope of work and
encouraged offerors to be "innovative" in their technical approaches,
"challenge the status quo and existing paradigms," and adopt practices
that foster "continuous improvement." RFP sections C-1.2; C-1.3.
Specifically with regard to the chief executive, where the SSA found
breadth of experience to be a significant discriminator between the
proposals, the RFP required consideration of the "depth and breadth of
his/her qualifications in the management and administration of
organizations." Id. M-2(a). Thus, based on the RFP's expressed desire for
innovation and improvement, rather than the status quo, coupled with the
specific reference to broad experience (at least for the chief executive),
we find reasonable the SSA's determination that the more diverse
experience of SRNS's key personnel was deserving of a higher rating.[9]
SRA contends, also, that four of SRNS's proposed key personnel [REDACTED]
lacked essential experience for their positions, which should have
translated into weaknesses instead of strengths in the evaluation.
In contrast, SRA argues that four of its proposed key personnel [REDACTED]
should have been credited with significant strengths. Protest at 20-28;
SRA's Comments at 13-44. In failing to assess SRNS's proposal weaknesses
and SRA's proposal significant strengths, SRA contends, the agency failed
to take into account qualitative differences in the proposals,[10]
disregarded the evaluation criteria that required consideration of
experience as it relates to the function each individual was proposed to
manage, and evaluated offerors' key personnel disparately.
As an initial matter, we note that the record evidences that the agency
took into account qualitative distinctions in the proposals. While it may
be true that some of SRA's key personnel are more experienced than SRNS's
in certain areas, in other areas, SRNS's personnel were found to be more
experienced.[11] Although SRA focuses on a few positions in its protest,
it does not challenge the many significant strengths and strengths
assessed for the many other identified key personnel in both offerors'
proposals, which resulted in SRNS's proposal receiving nearly twice as
many significant strengths as SRA's proposal. Also, SRA does not challenge
the agency's evaluation of the oral presentation, and the record shows
that the SRNS team performed far better as an integrated unit in
responding to the managerial problems than did SRA, thus demonstrating
"superior leadership" capabilities to the agency.[12] AR, Tab E.1, SSA
Decision, at 7. Based on our review of the record, including the oral
presentations, we find the agency's evaluation of key personnel to be
reasonable.
For example, SRA asserts that SRNS's [REDACTED] lacked [REDACTED]
experience, which SRA argues should have translated to a weakness in the
evaluation and not a strength. The agency disagreed, explaining in the SEB
report that the individual had over 25 years of relevant experience, had
managed large staffs with budgets [REDACTED], and had participated in
[REDACTED]--all of which the SEB found advantageous to performing the
functions he was proposed to manage. The SEB explained, nonetheless, that
this experience did not rise to the level of a significant strength
because most of the individual's experience was with [REDACTED]; his
[REDACTED] experience, the SEB recognized, was "limited." AR, Tab B.2, SEB
Report, app. A, at 10.
In comparison, the SEB assessed SRA's [REDACTED] a strength for possessing
[REDACTED] experience, but also determined that this individual did not
deserve a significant strength because he "does not have extensive
experience with [REDACTED]." Id. at 5. Since the RFP expressly identified
activities involving [REDACTED], see RFP sect. C-3.3(a), we find no error
or inconsistency in the agency's evaluation of either offeror's proposed
[REDACTED] key personnel under this factor.[13]
Similarly, the agency fairly evaluated both offerors' proposed SRNL
directors. For this position, the RFP provided that, in addition to
considering experience and qualifications, the agency would consider the
individual's "recognition for scientific or engineering accomplishments
and recognition for successfully managing a multidisciplinary nuclear
research and development organization." RFP sect. M-2(a); see also id.
sect. L-4(a)(1) (requiring key personnel to identify "Publications,
Awards, Honors, and Professional Recognition"). Both offerors' proposals
received strengths for these positions. For SRNS's director, the SEB
favorably considered his PhD in nuclear engineering, his work experience
successfully managing a multidisciplinary nuclear research and development
organization, his experience establishing consortia with universities and
industry, his strong research background, and the extensive professional
recognition he had received for his work. However, the SEB did not assign
this individual a significant strength because his experience managing a
multidisciplinary organization was "at the division level." AR, Tab B.2,
SEB Report, app. A, at 9-10.
Likewise, SRA's proposed SRNL director was favorably recognized for his
PhD in health sciences, his experience with several national laboratories,
and his work in forming university alliances. However, the individual had
received only "limited recognition for scientific or engineering
accomplishments," which was a criteria for evaluation of this factor as
stated in the RFP.[14] Id. at 4. Thus, even though SRA's proposed SRNL
director had managed multidisciplinary organizations above the division
level, he had not received the scientific and engineering-related awards
and recognition that SRNS's proposed SRNL director had received, and thus
the agency reasonably determined that SRA's director also was not
deserving of a significant strength under the evaluation criteria.[15]
The record also confirms that the agency properly assessed strengths, and
not significant strengths or weaknesses, to SRNS's proposed [REDACTED],
and SRA's proposed [REDACTED], based on each individual's more limited
experience as relevant to their proposed functions. Id. at 4, 10. SRA
disagrees with the agency's conclusions and contends that the areas where
SRNS's key personnel lack experience are more critical to performing
"primary" functions than the areas where SRA's key personnel lack
experience, and that this should have resulted in discriminators in favor
of SRA. E.g., SRA's Comments at 23-24, 40. However, this reflects only
SRA's disagreement with the assessment of significant discriminators
in the evaluation. The record here is well-reasoned and shows that the
agency reasonably considered experience relative to proposed function and
did not evaluate the offerors unequally.
Organizational Structure & Management Approach Factor
SRA contends that SRNS's proposal should have received a lower rating
under the organizational structure and management approach factor because
[REDACTED] of SRNS's proposed key personnel are not directly employed by
SRNS, but remain employees of SRNS's team members.
For evaluation under this factor, the RFP required each offeror to propose
a "management approach (functional organization, lines of authority, roles
and responsibilities, and interface with DOE and NNSA) to safely and
seamlessly perform the Statement of Work . . . and to achieve the safe and
efficient accomplishment of [Savannah River Site] missions." RFP sect.
M-2(b). The RFP stated that the agency would evaluate each approach for,
among other things, "the extent to which it provides an efficient and
realistic approach to meet the general performance expectations."[16] Id.
SRA contends that because SRNS's key personnel are not directly employed
by SRNS, they cannot "seamlessly" perform the work like SRA can, whose key
personnel ([REDACTED][17]) are directly employed by SRA. Protest at 29.
The RFP did not require that key personnel be direct employees of the
offeror; it required only that each key personnel provide a 2-year
commitment to the contract. RFP sections L-4(a)(1), M(a)(1). All of SRNS's
key personnel provided a 2-year commitment to the contract without any
"contingencies or constraints" on their employment.[18] SRNS's Second
Supp. Comments, Tab 4, Key Personnel Commitment Letters. The RFP required,
and SRNS provided, the "Name of [the] Company/Partner [each] Key Person
will work for," thus contemplating that entities other than SRNS could
remain as the employer for the individual. RFP sect. L-4(a); see also id.
sect. L-4(b) (contemplating that teaming arrangements will be used to
perform the work). Although SRA contends that section H-41 of the
solicitation, which required that a "separate corporate entity must be set
up solely to perform this Contract," mandates that personnel also be
employed by the offeror, no such limitation is stated in section H-41 or
elsewhere in the solicitation.
Here, in evaluating the organizational structure and management approach
factor, the SEB evaluated each offeror's management organization, lines of
authority, roles and responsibilities, and how the team members would
function together as a seamless unit. AR, Tab B.2, SEB Report, at 21-22;
id., app. B. As part of this evaluation, the SEB considered the key
personnel commitments, corporate guarantees, and the corporate governance
structure proposed by SRNS. Contracting Officer's Statement at 29. Based
on this, the SEB found no risks to seamless operation and, instead,
reasonably concluded that SRNS's approach warranted many significant
strengths and strengths in the evaluation. Among other things, the SEB
found that SRNS's approach established clear "lines of authority,"
"detailed roles and responsibilities," and a "functional organizational
structure" that the agency determined "increases the probability of
successful contract performance."[19] AR, Tab B.2, SEB Report, app. B, at
5. SRA disagrees with this assessment, but has not shown it to be
unreasonable.[20]
Technical Management Factor
SRA protests the evaluation of three of the equally-weighted subfactors
under the technical management factor: EM closure activities, SRNL
activities, and landlord services and site support.[21]
1. EM Closure Activities
EM closure activities, as described in the statement of work, include soil
and water remediation efforts, deactivation and decommissioning of
facilities and structures, solid waste handling and removal, and nuclear
materials management. RFP sect. C-3. Offerors' overall technical
management approaches were to be evaluated "to ensure EM Closure
Activities are conducted in a safe, secure, environmentally sound and
fiscally responsible manner and fully comply with all applicable law,
regulations, DOE directives, and terms and conditions of the contract."
Id. sect. M-2(c)(1). Under this subfactor, each offeror was required to
propose two "innovative" approaches that were to "challenge the status
quo" in performing EM closure activities; these proposed innovations were
to be evaluated for "strategy for implementation," "feasibility," and
"resultant benefits."[22] Id.
Each offeror's proposal was rated "good" under this subfactor. The SEB
found that both offerors' proposed approaches, overall, were
"substantially equivalent," even though proposals "differ[ed] in some
areas and in the level of detail provided." For example, the SEB noted
that both offerors "demonstrated excellent fiscal responsibility," but
that SRA's proposal provided more detail than SRNS's as to "how all
current nuclear material activities will be conducted in a secure manner."
AR, Tab B.2, SEB Report, at 23-24. With regard to the offerors' four
proposed innovations, the SEB noted that all "had sound strategies for
implementation," but that SRA's two innovations were "more feasible" than
SRNS's. The SEB noted, however, that SRNS's [REDACTED] was an "order of
magnitude higher [than SRA's proposed innovations] with respect to
challenging the status quo and could facilitate dramatic change at [the
Savannah River Site]." Id. at 24.
SRA contends that the agency's concerns regarding the "feasibility" of
SRNS's proposed innovations and the lack of detail in addressing how
nuclear material activities will be conducted in a "secure" manner (both
of which were reflected as weaknesses in the evaluation of SRNS's
proposal) should have resulted in SRNS's proposal receiving a lower rating
under the EM closure activities factor, given that feasibility and
security were two elements of the evaluation criteria. Protest at 33-40.
However, the agency convincingly explains that these weaknesses were not
fatal to the viability of SRNS's proposed approach. For example, contrary
to SRA's characterizations, SRNS's proposal did not completely fail to
address nuclear material security; the proposal simply was not as detailed
as the agency would have liked and was less detailed than SRA's proposal.
SRNS's proposal did, however, generally address security issues in
connection with EM closure activities. See Contracting Officer's Statement
at 32; SRNS's Comments at 68-69. With regard to the agency's expressed
concerns regarding the feasibility of SRNS's proposed innovations, the
agency explains that these concerns did not reflect a lack of viability of
SRNS's proposed innovations, but instead pertained to scheduling (whether
SRNS's [REDACTED] could be implemented "in the proposed timeframe")
or issues for which there were possible solutions (SRNS's [REDACTED]).[23]
Supp. Contracting Officer's Statement at 14, 17; AR, Tab B.2, SEB Report,
app. C, at 8-9.
In any event, the agency considered these weaknesses and reasonably
determined that they were outweighed by numerous other strengths and
significant strengths identified in the evaluation of SRNS's proposal
under this factor. For example, the SEB found numerous strengths because
SRNS' proposed approach to EM closure activities was "safe and fiscally
responsible," "safe and disciplined," "environmentally sound and
compliant," and "cost effective"[24] AR, Tab B.2, SEB Report, app. C, at
6-7. In addition, SRNS's proposed innovations received significant
strengths because they "significantly challeng[ed] the status quo"[25] and
had "great potential to positively impact" the EM closure workscope.[26]
Id. at 8. Similarly, the agency considered the numerous strengths,
significant strengths, and weaknesses of SRA's different approach and
innovations, and concluded that any advantages or disadvantages between
SRA's and SRNS's proposals were not significant. SRA has not shown that
the agency's comprehensive evaluation was flawed.
2. SRNL Activities
As stated above, the SRNL is a DOE operated and federally funded research
and development laboratory. RFP sect. C-1.1. The RFP provided that
proposals would be evaluated under the SRNL subfactor for "completeness,
balance, and feasibility" to develop the SRNL "into a multi-program world
class National Laboratory while operating safely and maintaining the
technical expertise to address emerging DOE scientific challenges." This
evaluation was to include, among other things, consideration of the
offeror's approach to "building external collaborations, and employing
innovative or best-in-class approaches." RFP sect. M-2(c)(2).
Each offeror's proposal was rated "excellent" under this subfactor. Both
were found to "provide a good plan for improving [the] SRNL and
positioning it for the future," both "identified excellent potential
external collaborations," and both proposed to position the SRNL as a
"distinct business unit." Although the SEB noted differences in the
management approaches, overall it determined that the proposals were
"substantially equivalent" under the SRNL subfactor. AR, Tab B.2, SEB
Report, at 25-26.
SRA contends that its proposal should have been rated superior to SRNS's
under the SRNL subfactor because SRA's approach to "building external
collaborations" included an "already existing university consortium"
supported by [REDACTED]. First Supp. Protest at 33. In contrast, SRA
argues, SRNS only offered "plans to form . . . consortiums in the future."
Id. at 34. The SEB recognized this distinction and gave SRA's proposal a
significant strength for its approach based on the existing relationships
and [REDACTED], and gave SRNS's proposal a strength because it also
proposed partnerships that were found to be advantageous to the
government. AR, Tab B.2, SEB Report, at 26, app. C, at 10-11, 14. The
record does not evidence that SRNS proposed only future plans to build
collaborations as SRA contends; rather, SRNS's proposal identifies several
"existing collaborative relationships," for which the agency properly gave
SRNS credit. AR, Tab D.1. SRNS's Proposal, at 110-11. Thus, the record
shows that, on the issue of forming collaborations, SRA's proposal was
rated higher than SRNS's due, in part, to having [REDACTED]; but
considering the other strengths and significant strengths identified in
each offeror's proposal under this subfactor, the agency found no
significant discriminator between proposals. Although SRA disagrees with
this assessment, it has not shown it to be unreasonable.[27]
3. Landlord Services & Site Support
Landlord services and site support activities include providing
engineering and construction management, operations support, and business
services.[28] RFP sect. C-3.4.
For this subfactor, the RFP stated that the agency would evaluate "the
comprehensiveness and feasibility of the Offeror's proposed plan to
interface with other site contractors and tenant site entities both as it
performs its own work and as it provides landlord services to others in
accordance with Section C-4 of the [statement of work]." Id. sect.
M-2(c)(4). Section C-4 required, "[w]ithin 60 days after the start of
transition," that the contractor develop a [site] "Interface Management
Plan (IMP) to identify and manage all site interfaces and to provide site
landlord services to DOE, NNSA, DOE/NNSA contractors, and tenant entities
engaged in onsite activities" Id. sect. C-4.
Both proposals were rated "good" under this evaluation subfactor and were
found to be "substantially equivalent." Both were found to provide a "very
well structured approach to interface with other site contractors and
tenants," and both reflected a "good understanding of the complexities of
the [site] interfaces in the future as new DOE contracting strategies are
implemented." AR, Tab B.2, SEB Report, at 27-28. Both proposals received a
significant strength and a strength, and only SRA's proposal received a
weakness. This weakness was assessed because SRA's proposal "fail[ed] to
discuss how it would fit DOE into" its interface plan, which was important
because "SRA's direct interface with DOE prime contractors will have to be
coordinated with DOE." Id., app. C, at 23.
SRA complains that the assessed weakness reflects consideration of
unstated evaluation criteria. According to SRA, the RFP required only
coordination with site contractors and did not specify that consideration
would be given to "how DOE fit[s] into the interfacing process." Protest
at 48. However, the RFP, in section C-4, clearly contemplates DOE
involvement, and thus we find no merit to this protest ground.
ES&H Factor
The RFP required offerors to "conduct a comprehensive ES&H program that
provides for the protection of workers, the public, and the environment,"
and to implement a "program that will ensure that nuclear safety
requirements are implemented consistently across [the site]." RFP
sect. C-3.4(a)(1) and (2). Section M of the solicitation advised that the
agency would evaluate each offeror's proposed approach "to enhance the
existing ISMS [Integrated Safety Management Systems] for all work on the
[site] and ensure continual improvement in ES&H performance." In addition,
the agency would evaluate the offeror's plan for managing the site's
"nuclear safety program." Id. sect. M-2(d).
Both offerors' proposals were rated "good" and were found to have
"comparable good approaches" to enhancing the existing ISMS, implementing
ES&H requirements across the site, and managing the site's nuclear safety
program. After considering the various strengths, significant strengths,
and weaknesses associated with each proposal, the agency found both
proposals to be "substantially equivalent." AR, Tab B.2, SEB Report, at
28-29.
SRA complains that SRNS's proposal should have been rated lower because
the evaluators found that the proposal "lacked understanding" of the
implementation of the ISMS and DOE's hierarchy of controls for safety
systems, which SRA asserts "inherently are basic elements of the
evaluation criterion for the ES&H factor." Protest at 54-55. However, SRA
misinterprets and mischaracterizes both the evaluation record and SRNS's
proposal. As the agency explains, the SEB identified two weaknesses in
SRNS's proposal under the ES&H factor, both relating to proposal
statements that were inconsistent with the RFP. This led the SEB to assess
weaknesses because these proposal inconsistencies called into question the
offeror's "complete understanding" of the RFP requirements in particular
areas. AR, Tab B.2, SEB Report, app. D, at 5-6. The agency further
explains, however, that its review of SRNS's entire proposal did not
evidence a complete lack of understanding, as suggested by SRA. Rather,
the proposal included "comprehensive details" and "demonstrated a good
understanding" of the requirements, which in fact is reflected in the
numerous assigned strengths and significant strengths. Contracting
Officer's Statement at 43-45; AR, Tab B.2, SEB Report, app. D, at 3-5.
Nevertheless, the inconsistencies were found to pose a risk to
performance, which was duly noted by the SEB in the evaluation.[29] AR,
Tab B.2, SEB Report, app. D, at 5. Based on our review of the record, we
find no error in the agency's judgment.
SRA also contends that SRNS failed to provide a plan for managing the site
nuclear safety program. Protest at 55. Again, SRA is factually inaccurate.
The SEB report noted (as "[n]either a [s]trength nor a [w]eakness") that
SRNS's proposal "will take the first 30 days of transition to evaluate the
[incumbent contractor's] work scope to prepare a transition plan." AR, Tab
B.2, SEB Report, app. D, at 6. However, contrary to SRA's
characterization, the proposal did include a plan to ensure that nuclear
safety work will continue without interruption or reduction of quality, as
required by the solicitation. See AR, Tab D.1, SRNS's Proposal, at 166-69.
Given that the contract transition period is 90 days and SRNS's proposal
meets the RFP requirements, we see no reason why the agency was required
to assess a weakness to SRNS's proposal.
Past Performance & Relevant Experience Factors
SRA challenges the evaluation of past performance and relevant experience,
essentially arguing that its performance history and experience were
deserving of higher ratings than SRNS's.
The RFP provided that the agency would evaluate each offeror's past
performance "to determine the degree to which the quality of the past
performance demonstrates [the offeror's] ability to successfully perform
the [statement of work]." RFP sect. M-2(e). Relevant experience was to be
evaluated "to determine the degree to which the similarity and extent of
that experience demonstrates the ability to successfully perform the
mission areas of the [statement of work]." Id. sect. M-2(f). The RFP
further stated, however, that "experience need not be directly associated
with DOE programs and facilities" to be favorably considered. Rather,
"[o]perational, engineering, research and development, facilities and
business experience that from a technical perspective is reasonably
similar to the types of work identified in the [statement of work] is
acceptable." Id. sect. L-4(f).
Because both SRA and SRNS are newly formed entities, the agency considered
the past performance and relevant experience of each of the team members
and, where relevant, their corporate parents. For past performance, the
SEB considered ES&H data (e.g., information on workplace fatalities, and
accident and injury data), past performance questionnaire responses,
performance history in achieving socioeconomic goals, whether prior
contracts had been terminated, and performance evaluations. The SEB
considered both the positive and negative past performance of all of the
team members, and documented its analysis in the SEB report. For relevant
experience, the SEB noted differences in the types of experience for
individual team members and major subcontractors, but concluded that
"cumulatively both Offerors overall have demonstrated extensive experience
managing contracts similar to or greater in size to" the contract
requirements here. AR, Tab B.2, SEB Report, at 33.
With regard to the evaluation of past performance, SRA complains that the
agency failed to recognize SRA's superior team record of ES&H performance
as a discriminator in favor of SRA. Second Supp. Protest at 41-47.
However, the SEB did, in fact, recognize that SRA's safety data was
superior to SRNS's. AR, Tab B.2, SEB Report, at 30. Although both
offerors' proposals received strengths for ES&H data because both
offerors' records were "trending positively toward the DOE averages," Id.
at 30; id., app. E, at 2,6, SRNS also received a weakness in recognition
of the unfavorable ES&H data concerning one of its team members. AR, Tab
B.2, SEB Report, app. E, at 7. Thus, the record shows that the agency
recognized differences in ES&H data in the evaluation. In any event, there
were numerous other aspects of the agency's comprehensive past performance
evaluation that revealed strengths and weaknesses and an overall record of
performance that was "more favorable than unfavorable" for both offerors.
AR, Tab B.2, SEB Report, at 33. When all of this information was
considered, the agency reasonably found no significant discriminator
between proposals under the past performance factor.[30]
With regard to the evaluation of relevant experience, SRA contends that it
has more extensive experience than SRNS in each of the mission areas of
the statement of work, based on the SRA team members' experience on the
incumbent contract. Protest at 65. The SEB recognized several significant
strengths in the evaluation of SRA's proposal based on the site-specific
experience of SRA's team members from the incumbent contract. AR, Tab B.2,
SEB Report, app. F, at 1-4. However, since site-specific experience was
not required by the RFP, see RFP sect. L-4(f), the agency reasonably found
that the experience of SRNS's team members was also "highly relevant," of
"similar scale," reflected experience in "core competencies," and thus was
deserving of significant strengths in the evaluation. AR, Tab B.2, SEB
Report, app. F, at 5-6. These conclusions were reasonably supported by
detailed explanations in the SEB report identifying the relevant
experience of both offerors' team members and explaining why the agency
believed that the experience increased the probability of successful
performance. Id. at 5-8, see also Contracting Officer's Statement at
33-42. Again, SRA disagrees with the agency's assessment, but has not
shown it to be unreasonable.[31]
SRA also asserts that the agency improperly considered the "corporate
resources, experience, and past performance" of [REDACTED], because
neither company is a member of the SRNS team.[32] Second Supp. Protest at
64-65; SRA's First Supp. Comments at 46-49; SRA's Second Supp. Comments at
10-16. This argument is a red herring. While it is true that [REDACTED] is
the signatory to the operating agreement that formed SRNS, SRNS's proposal
makes clear that [REDACTED] play significant roles in providing resources
and performing work for this contract. Accordingly, the agency properly
considered the experience of both. Cobra Techs., Inc., B-280475 et al.,
Oct. 6, 1998, 98-2 CPD para. 98 at 4-5.
Alleged Conflicts of Interest
SRA contends that the key personnel evaluation is tainted by personal and
organizational conflicts of interest (OCI) involving an evaluation
reference, SRNS's proposed SRNL director, and several of SRNS's other key
personnel.
SRA first argues that the evaluation was tainted in that one of the
individuals who provided references to the SEB in connection with two
proposed key personnel provided biased information because she had a
personal conflict of interest: at the time of the evaluation, she was
married to an employee of one of SRNS's team members.
The RFP required each proposed key personnel to provide a reference, and
stated that these "reference checks" would be part of the key personnel
evaluation. RFP sect. M-2(a)(1). One of SRA's key personnel and one of
SRNS's key personnel identified a DOE employee as a reference. As was
known by SRA at the time of its proposal submission and during the
evaluation, but was not known to the SEB or SSA, this DOE employee was
married to an employee of one of SRNS's team members. Supp. Contracting
Officer's Statement at 2-3. The evaluators had no reason to suspect bias
on the part of this reference, given that it was SRA that identified this
DOE individual as a key personnel reference, and presumably SRA would not
have identified a reference that could be biased against it. Id. at 5. The
DOE employee reference gave the SRA individual a somewhat negative
reference, and gave the SRNS individual a positive reference.
During the evaluation, the SEB noted that, with regard to the one SRA key
personnel, the negative reference was inconsistent with the other positive
references, and thus the agency requested additional references, all of
which were positive. As a result, the SEB "discounted" the negative
reference, concluded that the reference checks for this SRA individual
were "[f]avorable," and rated this SRA individual a strength in the key
personnel evaluation. Supp. Contracting Officer's Statement at 6; AR,
Tab B.2, SEB Report, app. A, at 5, 11. With regard to the one SRNS key
personnel, the DOE reference was found to be consistent with other
"[f]avorable" references, and the SRNS individual was also given a
strength in the evaluation. Supp. Contracting Officer's Statement at 6;
Tab B.2, SEB Report, app. A, at 5, 11.
We have recognized that an actual or apparent conflict of interest may
arise when an agency employee has both an "official role in the
procurement" and a "personal stake in the outcome." TPL, Inc.,
B-297136.10, B-297136.11, June 29, 2006, 2006 CPD para. 104 at 8 (citing
examples). Here, however, the DOE reference in question did not have an
official role in the procurement--she was not involved in drafting,
reviewing or approving the RFP; evaluating proposals; or reviewing or
approving the award. She merely provided a personnel reference for two
individuals because she was identified by the offerors as a person to
contact as a reference check. We have found that a conflict of interest
does not necessarily exist, even where the same agency employee provides a
reference and performs the evaluation, absent a showing (which has not
been made here) of improper influence on the evaluation. Id. at 9. Based
on this record, we find that the evaluators acted reasonably in dealing
with this reference's comments.[33] In any event, even if the DOE
reference were biased or had a conflict of interest, the record shows that
this had no impact on the evaluation and thus SRA was not prejudiced as a
result. See Laerdal Med. Corp., B-297321, B-297321.2, Dec. 23, 2005, 2005
CPD para. 12 at 7 (prejudice is not established where, even if a conflict
of interest or bias exists, it has no impact on the evaluation).
SRA also complains that several of SRNS's proposed key personnel create
the potential for OCIs. Specifically, it contends that the SRNL director's
role as the president and owner of a consulting firm "conflicts" with his
role as SRNL director for SRNS, and that the director could use
information obtained during performance for the competitive advantage of
his company and clients in the future. SRA's Comments at 87. SRA also
contends that [REDACTED] of SRNS's proposed key personnel have "divided
loyalty" because they are employed by SRNS's member companies and not SRNS
itself. SRA's Comments at 83. As discussed below, we do not agree with SRA
that the situations it describes with regard to SRNS's key personnel
present the potential for OCIs.
It is true that contracting officers have a duty to avoid, neutralize, or
mitigate potential significant OCIs so as to prevent unfair competitive
advantage or the existence of conflicting roles that might impair a
contractor's objectivity. Federal Acquisition Regulation (FAR)
sections 9.504(a), 9.505; Aetna Gov't Health Plans, Inc.; Found. Health
Fed. Servs., Inc., B-254397.15 et al., July 27, 1995, 95-2 CPD para. 129
at 12-13. As FAR Subpart 9.5 explains, OCIs that must be avoided include
situations where a company has divided loyalties that impair its ability
to render impartial advise to the government ("impaired objectivity"), or
where the company has access to information that its competitors do not
that could lead to a competitive advantage for the firm ("unequal access
to information").[34] FAR sect. 9.5; Aetna Gov't Health Plans, Inc.;
Found. Health Fed. Servs., Inc., supra, at 12-13. It must be noted,
however, that there is a distinction between an OCI and a personal
conflict of interest: with an OCI, the conflicted party is the
organization; with a personal conflict of interest, the conflict is with
the individual. See Daniel I. Gordon, Organizational Conflicts of
Interest: A Growing Integrity Challenge, 35 Pub. Cont. L.J. 25, 29 (Fall
2005) (distinguishing personal from organizational conflicts of
interests); see also FAR sections 3.101-1, 9.505, 9.508. The facts here,
at most, give rise to personal conflicts of the individual SRNS employees
and are not OCIs.
SRA has not alleged, nor does the record evidence, any facts showing that
SRNS or its team member organizations have impaired objectivity or that
these entities serve multiple, or conflicting, roles that could lead to an
impaired objectivity OCI; nor has SRA alleged that SRNS or its team member
organizations had unequal access to information that would render this
competition unfair. Rather, SRA argues merely that the individual
employees are not adequately committed to SRNS and may use their positions
to benefit their employing team member companies, or, in the case of the
SRNL director, that he will use information in the future that will
benefit his own company.
With regard to the SRNL director, the individual's ownership of a
consulting business does not appear to "conflict" with his role as SRNS's
proposed SRNL director, as SRA asserts. The individual has divested
himself of all of his consulting work, except for one unrelated contract
which he is performing as a means of income until this protest is
resolved. Declaration of SRNS's SRNL director para. 5. He and the other
[REDACTED] key personnel have signed commitment letters to work solely on
the Savannah River Site project without any "contingencies or constraints"
on their positions. SRNS's Second Supp. Comments, exh. 4, SRNS Key
Personnel Commitment Letters. To the extent that SRA asserts that the SRNL
director or others may use information learned during performance to
benefit themselves or their employers in future endeavors, this is
speculative and insufficient to impute any conflict of interest on these
individuals or their employers. See American Mgmt. Sys., Inc., B-285645,
Sept. 8, 2000, 2000 CPD para. 163 at 6 (possible benefit from current
procurement to a contractor is too speculative and remote to establish a
significant OCI).
In addition, we see no significant potential for OCIs arising out of the
fact that [REDACTED] of SRNS's key personnel will remain employees of the
team member companies rather than become direct employees of SRNS. Given
that the employers are team members of SRNS working together to perform
the site work, we agree with the agency that there is unlikely to be any
divergence of interest. Under the incumbent contract, currently performed
by SRA's team members, the key personnel are employed by the team members
and not the prime contractor, WSRC. OCIs have not arisen under that
situation, and as the agency reasonably explains, OCIs are unlikely to
happen here. Contracting Officer's Statement at 56. The contracting
officer here reviewed SRNS's disclosures regarding potential OCIs, and
reasonably determined that there was no basis to question these
disclosures. Id. SRA's arguments do not call into question the
reasonableness of the contracting officer's judgment.
In sum, the evaluation record evidences a comprehensive and
well-documented analysis of proposals under each of the evaluation
factors, which supports the SSA's determination that SRNS's proposal
presented the best value to the government, notwithstanding its higher
evaluated price. As the SSA explained, key personnel were "critical" to
successful performance and implementation of program strategy, which is
why SRNS's superior-rated key personnel were worth the additional cost.
AR, Tab E.1, Source Selection Decision, at 8. Based on our review of the
record, we find the SSA's determination to be reasonable.
The protest is denied.
Gary L. Kepplinger
General Counsel
------------------------
[1] The SRNL is a DOE operated and federally funded research and
development laboratory. RFP sect. C-1.1.
[2] The NNSA is responsible for supporting the nuclear weapons stockpile
programs and nonproliferation activities on the site. RFP sect. C-1.1.
[3] Tritium is a radioactive isotope of hydrogen.
[4] The management and business proposals addressed the non-price factors.
RFP sect. L-4.
[5] The SEB did not assign overall ratings for the technical management
approach factor.
[6] Several of the protest grounds were raised as supplemental protests,
based on information contained in the SEB report and source selection
decision that the agency provided in response to the protest. The
intervenor requested dismissal of these grounds, arguing that they were
untimely raised. The intervenor asserts that SRA had reviewed unredacted
copies of the SEB report and source selection decision during the
debriefing, and thus SRA was required to raise its protest grounds based
on these documents in its initial protest. SRNS's Request for Partial
summary Dismissal, at 2. While it is true that SRA's representative were
allowed to review unredacted copies of the SEB report and source selection
decision during the debriefing, the agency limited the review to 3 hours
and only permitted five representatives to review the documents. Those
representatives were prohibited from taking notes; were not allowed to
bring pens, pencils, recording devices, or personal belongings into the
review room; and were not allowed to take any materials with them at the
end of the 3-hour time frame. Considering that the two documents exceeded
135 single-spaced pages in length, we do not find that SRA was
sufficiently on notice of its bases of protest contained in these
documents, from the limited review allowed, so as to give rise to an
obligation to protest within 10 days.
[7] Although we do not discuss each and every argument raised by SRA, we
have considered all of SRA's arguments and find them to be without merit.
[8] For example, the SEB assigned SRA's proposed [REDACTED] a strength and
not a significant strength because, although he posed 25 years of
experience in [REDACTED], including experience at the site, his experience
"was for scopes of lesser complexity than that of the proposed position."
AR, Tab B.2, SEB Report, app. A, at 4.
[9] Based on our review of the record, we also find reasonable the SSA's
determination that SRNS's proposed chief executive had broader, more
diverse experience than SRA's proposed chief executive.
[10] For example, SRA contends that its [REDACTED] is more experienced
than SRNS's [REDACTED], its SRNL director is more experienced than SRNS's
director, and its [REDACTED] is more experienced than SRNS's [REDACTED].
[11] For example, SRNS's proposed [REDACTED] was assessed a significant
strength and SRA's proposed [REDACTED] was assessed a strength, based, in
part, on the fact that SRA's manager comparatively had fewer years of
relevant experience and his experience was for "scopes of lesser
complexity" than that of the proposed effort. AR, Tab B.2, SEB Report,
app. A, at 4, 9.
[12] Ultimately, as noted above, oral presentation performance (which was
part of the stated evaluation criteria) became a key discriminator between
proposals under the key personnel factor.
[13] Although SRA contends that tritium experience is more critical to
performance than budget, real estate, and personnel experience, SRA's
Comments at 30-31, the agency explains (and the RFP notes) that tritium
operations must be operated as a "defined, severable cost center," and
budget, real estate, and personnel experience are specifically identified
in the RFP as being necessary to operating a center in this manner.
Contracting Officer's Statement at 23; see also RFP sect. C-3.3(a). In
addition, SRNS proposed [REDACTED], which the agency evaluated in
accordance with the key personnel evaluation criteria. See AR, Tab B.2,
SEB Report, app. A, at 7 (giving a significant strength to SRNS's proposed
[REDACTED] for, in part, his "over 40 years of experience" in support of
[REDACTED]); AR, Tab D.1, SRNS's Proposal, at 8 ([REDACTED]). SRA
complains that the agency did not similarly evaluate, or give credit for,
SRA's proposed [REDACTED], who possessed experience that SRA's key
personnel lacked, e.g., First Supp. Protest at 14, 19-20; SRA's Comments
at 31, but the RFP did not require the evaluation of [REDACTED] since they
were not proposed as key personnel, and SRA did not provide the
information required under the key personnel evaluation criteria for the
agency to evaluate such individuals.
[14] Although SRA correctly notes that the resume of its SRNL director
reflects some scientific accomplishments, we agree with the agency's
assessment that the vast majority of the accomplishments are "management
focused." Contracting Officer's Statement at 18; AR, Tab C.2, SRA's Key
Personnel Resumes, at 32-34.
[15] To the extent that SRA complains that the weakness assessed to its
SRNL director was less critical to performance than the weakness assessed
to SRNS's director, this argument is contrary to the RFP, which
specifically stated that SRNL directors would be evaluated for scientific
accomplishments and recognitions in addition to their qualifications and
experience. See RFP sect. M-2.2(a)(1).
[16] Also evaluated under the organizational structure and management
approach factor was the offeror's approach to involving small businesses
and implementing contractor assurance requirements. RFP sect. M-2(b).
[17] [REDACTED].
[18] We find no merit to SRA's argument that SRNS's Limited Liability
Company Operating Agreement rendered meaningless the key personnel
commitments and was inconsistent with the solicitation. SRA contends, in
this regard, that the Operating Agreement allows for SRNS's team members
to "remove" key personnel from SRNS at any time "without approval of DOE."
SRA's Third Supp. Protest and First Supp. Comments at 57-59. This is not
the case. The operating agreement does not reflect an intention that key
personnel will be removed from the contract, and does not suggest that
removal can occur over the objection of DOE. To the contrary, we find
nothing in the operating agreement that is inconsistent with the
solicitation, which allows for the substitution of key personnel during
performance with contracting officer approval.
[19] Although the key personnel oral presentation was not considered in
evaluating the organizational structure and management approach factor, we
note that SRA's management team was less "integrated" and performed less
"efficiently and seamlessly" than SRNS's team during the oral
presentation, which tends to contradict SRA's argument that direct
employment by the contracting entity necessarily translates into more
"seamless[]" performance. AR, Tab B.2, SEB Report, at 20.
[20] To the extent that SRA contends that the key personnel evaluation
also is flawed because the agency did not adequately consider the fact
that [REDACTED] of SRNS's key personnel were not directly employed by
SRNS, we similarly find the protest to be without merit.
[21] SRA did not protest the fourth subfactor--NNSA activities.
[22] SRA's proposed innovations were its "[REDACTED]" and "[REDACTED]."
SRNS's proposed innovations were its "[REDACTED]" and "[REDACTED]." AR,
Tab. B.2, SEB Report, at 24.
[23] The agency points out that SRA also received weaknesses for its
proposed innovations. AR, Tab B.2, SEB Report, app. C, at 4, 6. Although
SRA contends that the weaknesses its proposal received for innovations
were less severe than SRNS's proposal weaknesses, SRA's arguments rely on
a strict comparison of only weaknesses and omit any consideration of the
variety of strengths and significant strengths that each offeror's
proposal received, many of which the protester did not challenge.
Considered together, the record supports the agency's conclusion that
there were no significant discriminators between proposals under this
evaluation subfactor.
[24] The record does not support SRA's complaint that the agency did not
consider its proposed cost savings under the technical factor and
subfactors, including EM closure activities. In myriad places, the agency
gives credit to both offerors' proposals for proposed cost efficiencies or
savings, except where the agency found the savings to be "speculative" or
"unsubstantiated." See Contracting Officer's Statement at 51-55. The
record further shows that both offerors' proposals were evaluated
similarly in this regard.
[25] Although SRA contends that the agency should not have given SRNS's
proposed innovations credit for challenging the status quo, especially
since the agency identified weaknesses based on feasibility, as discussed
above, challenging the status quo was an important objective of the
statement of work, and thus was reasonably considered, and feasibility was
only one aspect of the evaluation under the EM closure activities
subfactor. RFP sections C-1.2, M-2(c)(1).
[26] SRA contends that some of the touted benefits of SRNS's proposed
innovations were unrelated to, or broader than, EM closure activities
workscope, and therefore should not have been credited with strengths or
significant strengths. Protest at 35-40; Second Supp. Protest at 33-38.
However, the agency has explained, and our review of the record confirms,
that each of the benefits credited in the evaluation are related in some
way to the broad scope of work for EM closure activities, and thus these
benefits were properly considered in the evaluation. To the extent that
the agency also credited SRNS's innovations because, in addition to
benefiting EM closure activities, they more broadly benefited other DOE
activities, we find nothing in the solicitation that prohibits
consideration of the additional benefits, especially where, as here,
offerors were encouraged to be "innovative" and "challenge the status quo
and existing paradigms" in implementing programs and operations. RFP
sect. C-1.2.
[27] SRA complains that the agency failed to properly consider four items
proposed by SRA under the SRNL subfactor: [REDACTED]. First Supp. Protest
at 34 n.17. However, SRA does not explain, and we are unable to determine,
why these should have resulted in a higher rating under the SRNL
subfactor.
[28] Landlord services and site support also include ES&H activities, but
these activities were evaluated under a separate evaluation factor in the
solicitation.
[29] SRA's proposal was similarly assessed a weakness based on proposal
inconsistencies with regard to contractor oversight. SRA contends that
these inconsistencies were mere "clerical errors," but the agency
reasonably considered the proposal statements to be discrepancies in the
proposal and not clerical errors. Contracting Officer's Statement at
46-48.
[30] SRA also complains that the agency improperly considered negative
past performance of one of SRA's team members regarding allegations of
[REDACTED], failed to consider negative past performance of one of SRNS's
team members with regard to a licensing issue, and did not sufficiently
downgrade SRNS's proposal for the negative past performance of one of its
team members relating to socioeconomic programs. The record shows that the
agency reasonably considered the information before it; we find no error
in these aspects of the evaluation.
[31] SRA points to two tables attached to the SEB report that, for each
offeror, listed the team members' prior contracts and then identified how
many of the statement of work activities that each of those contracts had
covered. Protest at 65. Because the SRA team members comprised the
incumbent contractor, SRA had more "checked boxes" than SRNS in the
tables. However, as the agency reasonably explains, the number of checked
boxes is not indicative of who has more relevant experience. In this
regard, the agency looked at each prior contract to determine whether it
was relevant to the activities that the team member was proposed to
perform. Where, for example, a team member of SRNS was proposed only to
perform a specific activity, it was not penalized because its prior
experience did not include other statement of work activities for which it
was not proposed. Thus, even though many of SRA's team member contracts
encompassed multiple areas to a greater extent than SRNS's team member
contracts, this properly was not considered to indicate that SRNS's team
members had less relevant experience. See Supp. Contracting Officer's
Statement at 37-38.
[32] [REDACTED]. E-Mail from Agency Counsel to GAO (Mar. 28, 2008). The
RFP specifically contemplated consideration of the past performance and
corporate guarantees of parent corporations where, as here, the offeror
was a new entity formed solely to perform this contract. RFP sect. L-4(e).
[33] Another favorable reference for one of SRNS's proposed key personnel
mentioned to the agency that he was "somewhat concerned about a potential
conflict of interest between himself and the proposing contractors." AR,
Tab B.6, Key Personnel Reference Worksheet, at 59. However, we agree with
the agency that no conflict existed since the reference was not a federal
employee or evaluator, and he did not have a role in the procurement. The
information provided was consistent with all other references for this key
personnel, does not evidence bias, and was properly considered by the
agency.
[34] A third type of OCI involves "biased ground rules," which is not at
issue in this case.