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1. Nova Technologies, B-403461.3; B-403461.4, February 28, 2011
Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Keywords: Past Performance
General Counsel P.C. Highlight: Where a solicitation requires the evaluation of offerors' past performance, GAO reviews an agency's evaluation only to ensure that it was reasonable and consistent with the solicitation's evaluation criteria and procurement statutes and regulations, because determining the relative merits of offerors' past performance information is primarily a matter within the contracting agency's discretion.
Nova Technologies protests the award of a contract, issued by the Department of the Army, for Digital Training Management System (DTMS) sustainment.
The RFP sought the delivery of training products and training management support to various Army units and organizations. With respect to past performance, the RFP advised that the agency would be assessing risks associated with the offeror's past performance record and that recent performance would be evaluated if it is the "same or similar in nature, size, and complexity to the services/products being procured under this solicitation." Offerors were to go back no further than 36 months. Nova's past performance was rated "good" and the agency considered three of the four contracts, one not reviewed due to the limited period of performance.
Nova challenges the agency's evaluation of the past performance portion of its proposal as "Good," asserting that the agency improperly failed to credit Nova for successful performance of the incumbent contract for a period of approximately 10 weeks before final proposals were submitted. GAO states that where a solicitation requires the evaluation of offerors' past performance, it will examine an agency's evaluation only to ensure that it was reasonable and consistent with the solicitation's evaluation criteria and procurement statutes and regulations, because determining the relative merits of offerors' past performance information is primarily a matter within the contracting agency's discretion. Mere disagreement with an agency's evaluation is not sufficient to render the evaluation unreasonable. Solicitations must identify all significant evaluation factors and any significant subfactors that will be considered in awarding the contract, and the evaluation of proposals must be based on the factors set forth in the solicitation. While agencies are required to identify the major evaluation factors, they are not required to identify all areas of each factor which might be taken into account, provided that the unidentified areas are reasonably related to, or encompassed by, the stated criteria.
The RFP did not state that the agency would consider the length of time that an offeror had performed a contract; it is self-evident that the length or duration of an offeror's prior contract effort logically relates to both the relevance and quality of an offeror's past performance. In evaluating an offeror's likelihood of successful performance, a prior contract effort that is of brief or limited duration is simply not as probative of an offeror's record as a contract for a lengthier period of time. Where, as here, the RFP stated that prior contracts would be assessed to determine whether they were the same or similar in nature, size, and complexity as the requirement being procured under this solicitation, GAO sees nothing unreasonable in the agency's consideration of the length of contract performance in its evaluation of past performance. The protest is denied.
2. Belzon, Inc., B-404416; B-404416.2; B-404416.3, February 9, 2011
Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Keywords: Qualifying Subcontractor Experience
General Counsel P.C. Highlight: Where a solicitation does not provide otherwise, an agency properly may consider subcontractor's experience in its evaluation of experience and past performance. Also an agency may base its evaluation of corporate experience on the experience of a proposed subcontractors when the subcontractors are to do the work to which the experience is applicable, if not prohibited by the solicitation.
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Belzon, Inc. protests the issuance of a task order to Millennium Systems Services, Inc. pursuant to a request for quotations (RFQ), issued by the Department of the Army, Army Contracting Command, for professional services to support the Aviation and Missile Command's (AMCOM's) use of performance-based logistics (PBL) concepts.
The Army originally had established the Expedited Professional and Engineering Support Services (EXPRESS) blanket purchase agreement (BPA) program to procure advisory and assistance services. Under the program, BPAs were issued pursuant to Federal Acquisition Regulation (FAR) subpart 8.4 to teams of contractors that offer professional and technical services through various General Services Administration (GSA) Federal Supply Schedule (FSS) contracts. There are four "domains" within the program: business and analytical; logistics; programmatic; and technical.
The agency issued the solicitation to six vendors that hold EXPRESS logistics domain BPAs. The solicitation sought professional services in support of AMCOM's use of the PBL method of contracting. Vendors were to quote fixed hourly rates for four labor categories specified in the solicitation. The solicitation announced four evaluation criteria: experience; functional approach; price; and socio-economic support. The solicitation instructed vendors to submit up to three examples of experience in support of all aspects of the proposed work statement.
The source selection authority (SSA) ultimately determined that Millennium's quotation offered the "best value" to the government because paying the price premium associated with Belzon's quotation was not justified given that Millennium's functional approach--the sole area in which Millennium's quotation received a lower rating than Belzon's quotation--was a "low risk for the Government."
Belzon first contends that the agency unreasonably assigned Belzon and Millennium equally high ratings in the area of experience. Belzon argues that as the "de facto incumbent," Belzon had experience with every aspect of the PWS, including the four weapon systems referenced in the solicitation but, Millennium's quotation does not demonstrate experience with any of those four weapons systems.
Here, the record shows that Belzon's quotation included one example of relevant experience, whereas Millennium's quotation included three examples of relevant experience. The protester's argument that its experience as a "de facto incumbent" is entitled to greater weight than the experience of the Millennium team amounts to mere disagreement with the agency's evaluation, which does not render it unreasonable. Moreover, the solicitation neither required experience with the four weapon systems referenced in the solicitation, nor limited the scope of work to AMCOM-specific aviation and missile systems. Rather, the solicitation's scope of work encompassed systems that "may include but are not limited to any aviation or missile system" and "programs and projects [that] may include any Department of Defense weapon or support system."
Next, Belzon contends that the agency's evaluation was unreasonable because each example of experience in Millennium's quotation involved work performed by a Millennium team member as a subcontractor, whereas the example of experience in Belzon's quotation involved work that Belzon performed as a prime contractor. GAO states that where a solicitation does not provide otherwise, an agency properly may consider a vendor's experience as a subcontractor in its evaluation of experience and past performance. Further, an agency may base its evaluation of corporate experience on the experience of a vendor's subcontractors when the subcontractors are to do the work to which the experience is applicable, so long as the solicitation allows for the use of subcontractors and does not prohibit the consideration of a subcontractor's experience in the evaluation. Where a solicitation allows for the use of subcontractors and does not prohibit the consideration of a subcontractor's experience in the evaluation, the significance of, and the weight to be assigned to, a subcontractor's corporate experience is a matter of contracting agency discretion.
Here, the solicitation required vendors to identify whether their examples of experience were "performed by the prime, team member and/or subcontractor." Also, nothing in the solicitation prohibited the agency from considering a vendor's experience as a subcontractor, nor did the solicitation call for any specific weighting of experience or require that a vendor have experience as a prime contractor in each area of the PWS.
Finally, Belzon argues that the agency's best value determination was unreasonable because, in Belzon's view, the record does not support the selection of Millennium's lower-rated, lower-priced quotation over Belzon's higher-rated, higher-priced quotation. The extent to which technical superiority is traded for a lower price is governed only by the test of rationality and consistency with the stated evaluation criteria. Where a price/technical tradeoff is made, the source selection decision must be documented, and the documentation must include the rationale for any tradeoffs made, including the benefits associated with additional costs. Even where a solicitation issued under FAR subpart 8.4 emphasizes technical merit over price, an agency properly may select a lower-priced, lower-rated quotation if the agency reasonably concludes that the price premium involved in selecting a higher-rated, higher-priced quotation is not justified in light of the acceptable level of technical competence available at a lower price.
The record here reflects that the evaluators identified and documented--and the SSA considered--specific, individual strengths regarding the experience and functional approaches described in Belzon's and Millennium's quotations. The SSA's source selection decision accurately acknowledges the higher rating that Belzon's quotation received in the area of functional approach, but concludes that the higher rating does not outweigh Millennium's price advantage, given that Millennium's functional approach is "low risk" for the government. GAO finds that the record adequately supports the agency's source selection. The protest is denied.
3. Northrop Grumman Information Technology, Inc., B-404263.6, March 1, 2011
Link: GAO Opinion
Agency: General Services Administration
Disposition: Protest denied.
Keywords: Corrective Action
General Counsel P.C. Highlight: Agencies have broad discretion to take corrective action where the agency has determined that such action is necessary to ensure fair and impartial competition. The details of implementing the corrective action are within the sound discretion and judgment of the contracting agency, and GAO will not object to any particular corrective action, so long as it is appropriate to remedy the concern that caused the agency to take corrective action.
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Northrop Grumman Information Technology, Inc. protests the corrective action taken in connection with a task order request (TOR), issued by the General Services Administration (GSA), to acquire, on behalf of the Department of Homeland Security (DHS), information technology support services.
The solicitation, which was issued to all contract holders under GSA's Alliant Government-Wide Acquisition Contract, sought the services of a single contractor to design, procure, configure/install, test, and maintain a seamless, integrated transport infrastructure. The TOR provided for the issuance of a task order for an initial five-year base period, followed by a two-year option period and a second, three-year, option period.
The agency evaluated proposals and, on the basis of initial offers, selected Northrop for the issuance of a task order. After being advised of the agency's selection decision and receiving debriefings, four unsuccessful contractors filed protests alleging various improprieties in connection with the agency's conduct of the acquisition. In response to those protests, GSA advised that it intended to take corrective action. Specifically, GSA advised that it was terminating the task order issued to Northrop and preparing a revised solicitation that would include any updates to the agency's requirements. After learning of the agency's corrective action and our dismissal of the protests, Northrop filed the instant protest.
Northrop asserts that the agency's corrective action is overly broad and unreasonable given the prior protest allegations and the fact that its price has been exposed. The earlier protests challenged the adequacy of the agency's evaluation of proposals and its failure to conduct discussions. Northrop further asserts that there has been no showing that the agency's requirements have changed so significantly that cancellation of the earlier solicitation and issuance of a new solicitation is warranted. Northrop requests that we recommend that the agency reinstate the task order previously issued to it.
GAO states that as a general rule, agencies have broad discretion to take corrective action where the agency has determined that such action is necessary to ensure fair and impartial competition. The details of implementing the corrective action are within the sound discretion and judgment of the contracting agency, and GAO will not object to any particular corrective action, so long as it is appropriate to remedy the concern that caused the agency to take corrective action.
GAO finds that it has no basis to object to GSA's proposed corrective action. The agency explains that it determined from the results of the original competition that its requirements may not have been adequately defined. In this regard, after it issued the original TOR, the agency amended the solicitation to add a significant requirement for optional operations and maintenance (O&M) work to be performed. Specifically, section B of the solicitation was amended to add optional CLINs 004B, 1004B and 2004B (each of these CLINS has several sub-CLINs representing annual requirements for each year of the multi-year periods of performance). While the CLINs included ceiling dollar value amounts (totaling $1,080,000,000), there was no further narrative description of the requirement in this section of the TOR.
The lack of detail in the TOR resulted in two bidder questions and answers, but the agency's answers did not provide any further specific elaboration concerning the agency's substantive requirements. The record also shows that the offerors diverged widely in their responses to the O&M requirement. GAO finds the agency's decision to take corrective action in these circumstances reasonable. Given the wide divergence in proposed levels of effort for the O&M requirement, as well as the relative lack of detail in the solicitation regarding this work, the agency reasonably concluded that it had failed adequately to convey its requirements to the offerors in a manner that would allow them to compete intelligently and on a relatively equal basis. The protest is denied.
4. ProActive, LLC, B-403545, November 18, 2011
Link: GAO Opinion
Agency: Nuclear Regulatory Commission
Disposition: Protest denied.
Keywords: Proposal Evaluation
General Counsel P.C. Highlight: An offeror has the responsibility to submit a well-written proposal, with adequately detailed information that clearly demonstrates compliance with the solicitation requirements and allows a meaningful review by the procuring agency.
ProActive, LLC, a small business, protests the award of a contract, by the Nuclear Regulatory Commission (NRC) under a request for proposals (RFP) for custodial, waste removal, and pest control services at NRC buildings.
The NRC issued the RFP as a set-aside for service-disabled veteran owned small business concerns (SDVOSBC). The RFP instructed each offeror to submit a technical proposal demonstrating an understanding of the requirement, showing relevant past performance and corporate experience, and presenting the qualifications of its key personnel. The RFP required that the offeror and each proposed subcontractor provide past performance questionnaires from at least three references on a specific past performance questionnaire form. With respect to corporate experience, the RFP requested identification of similar work performed by the firm, along with both the estimated annual value of the contract, the identification of which services the offeror had obtained from subcontractors, and the estimated value of the subcontracted services. With respect to key personnel, the RFP specified that the offeror identify as key personnel a contract manager and an alternate. Award was to be made to the firm offering the best value.
ProActive's proposal contained past performance surveys for both ProActive and Olympus, a subcontractor. One of the references for Olympus criticized the firm's quality control efforts and recurring problems with its recycle program, and so the NRC advised ProActive of that issue during discussions. In its response, ProActive substituted a different past performance questionnaire for Olympus, which had been prepared for a different federal agency, on that agency's form, and therefore it addressed different issues than those in the questionnaire specified in the RFP. The evaluators concluded that ProActive should be downgraded half a point.
With respect to the corporate experience information in ProActive's proposal, the firm identified contracts under which it and its team member Olympus had demonstrated similar work, but it did not identify the value of the work that had been performed by subcontractors for each reference. ProActive's proposal was downgraded one point for a lack of information.
For its key personnel, in its initial proposal, ProActive listed its president and vice president, and as on-site personnel, a contract manager, and a supervisor. In its final proposal, under the heading of "KEY PERSONNEL (Factor 4)," ProActive submitted a new resume for a person described as the back-up to its contract manager. However, that resume did not state the individual's formal education and training. The evaluators determined that the lack of this information for someone identified as key personnel justified downgrading ProActive's final proposal half a point under the key personnel factor.
ProActive asserts that its proposal should not have been downgraded, should have received a perfect score, and therefore should have merited a tradeoff in favor of paying its higher price. GAO states that in reviewing an agency's evaluation, it will not reevaluate technical proposals. GAO will examine the agency's evaluation to ensure that it was reasonable and consistent with the solicitation's stated evaluation criteria and procurement statutes and regulations. An offeror's mere disagreement with the evaluation is not sufficient to render the evaluation unreasonable.
With respect to the past performance evaluation, GAO's review of the record confirms that the NRC had a reasonable basis for its concern over the adverse performance. One reference reported unfavorable ratings for Olympus's quality control and recycle program. When the agency raised this issue during discussions, ProActive's response did not address the adverse past performance. Accordingly, GAO finds that the NRC's evaluation of a weakness under the past performance factor, which was then reflected in the lower point score, was reasonable.
For the corporate experience factor, GAO finds that the NRC reasonably assigned a weakness to ProActive's proposal because the corporate experience information in its proposal did not identify the value of the subcontracted work. The RFP specifically required offerors to identify, in their technical proposals, the estimated value of the subcontracted services for each corporate reference provided by the prime contractor and its subcontractors. Since ProActive provided corporate references for its team member Olympus, to demonstrate experience of the prime contractor, those references should have presented the information required by the RFP. An offeror has the responsibility to submit a well-written proposal, with adequately detailed information that clearly demonstrates compliance with the solicitation requirements and allows a meaningful review by the procuring agency.
With respect to the evaluation of key personnel, regardless of whether the RFP required the submission of a back-up contract manager, ProActive submitted a resume for a back-up contract manager, and it specifically identified the submission as part of its key personnel response. The RFP required a resume for all proposed key personnel, identifying all formal education and training. Given that ProActive submitted this resume as part of its key personnel response, GAO finds that the NRC reasonably considered the absence of that information for the back-up contract manager as a proposal weakness. Taken together, the record here demonstrates that the NRC reasonably downgraded ProActive's proposal for weaknesses under three of the four evaluation criteria. The protest is denied.
5. OLBN Architectural Services, Inc., B-402444.4; B-402444.5, October 4, 2010
Link: GAO Opinion
Agency: Department of Health and Human Services
Disposition: Protest denied.
Keywords: Competitive Range Determination
General Counsel P.C. Highlight:
OLBN Architectural Service, Inc. protests the evaluation and subsequent non-selection of its qualification statement for negotiation of an architect/engineering (A/E) services contract, pursuant to a solicitation, issued by the Department of Health and Human Services, National Institutes of Health (NIH), for general A/E services.
In acquiring A/E services, a contracting agency must publicly announce its requirements, evaluate the A/E performance data and qualifications statements on file as well as those submitted in response to the announcement, and select at least three firms for discussions without considering price. Negotiations concerning price are then conducted with the highest-ranked firms.
The qualifications statement of OLBN was ranked ninth-best, and determined to be outside of the competitive range. OLBN filed a protest, challenging the exclusion of its qualifications statement from the competitive range. In response to the protest, the agency stated that it would take corrective action by reevaluating OLBN's qualifications statement as well as those of each firm whose statement received a higher score than OLBN. GAO dismissed the protest. The technical evaluation panel (TEP) reconvened and determined that OLBN would again be excluded from competition.
OLBN protests its exclusion from the list of firms being further considered for awards, arguing that the agency failed to accord its submission appropriate credit and treated the offerors unequally. GAO states that in reviewing a protest of an agency's selection of a contractor for A/E services, it will not substitute its judgment for that of the agency evaluators. Rather, the evaluation of offerors' qualifications statement is within the discretion of the agency, and GAO's review examines whether the agency's selection was reasonable and in accordance with the published criteria.
Under the professional qualifications and project team organization factor, OLBN received 17 out of a possible 25 points. In evaluating this factor the agency found a weakness because "[t]he resumes for three of the firm's prime key persons show no previous work history with OLBN." GAO states that in evaluating proposals or qualifications statements, an agency properly may take into account specific matters that are logically encompassed by, or related to, the stated evaluation criteria, even when they are not expressly identified as evaluation criteria. Here, the evaluation factor involved an examination of the qualifications of the project team members (prime and sub-consultants), key personnel, and project team organization. GAO agrees with the agency that consideration of the working relationship between proposed key personnel experience and OLBN, the prime contractor, was logically related to the consideration of "professional qualifications" and "project team organization" and so did not constitute use of an unstated evaluation criterion.
Under the second evaluation factor, specialized experience and technical competence, OLBN received 17 out of a possible 25 points. In evaluating this factor the agency noted that OLBN itself did not participate with any of the example LEED projects and relies solely on the knowledge, experience, and expertise of its subcontractors to manage and coordinate this major portion of the work. GAO states that the agency reasonably viewed LEED accreditation as within the scope of the stated evaluation criterion of "specialized experience and technical competence" with regard to matters such as "energy conservation, pollution prevention, waste reduction, and the use of recovered materials." To the extent that the agency had a concern with OLBN's lack of experience as a prime contractor with LEED projects, as distinct from the experience of its subcontractor personnel with such projects, GAO finds this judgment was a matter within the agency's discretion and was consistent with the evaluation criteria.
Under the third evaluation factor, "capacity to accomplish the work in the required time including capacity to accomplish multiple simultaneous task orders," OLBN received 7.5 out of a possible 15 points. The agency noted that, although OLBN listed four projects, the protester "was a subcontractor to the lead/prime construction contractor for three of these projects and only three members of the OLBN staff participated on all four of these projects." GAO finds that the agency had a reasonable basis for distinguishing between the records of the competitive range offerors and the protester. Based on the evaluation of these three factors, GAO denies the protest.
