BNUMBER: B-270012.4
DATE: October 3, 1996
TITLE: Ogden Support Services, Inc.
**********************************************************************
DOCUMENT FOR PUBLIC RELEASE
A protected decision was issued on the date below and was subject to a
GAO Protective Order. This version has been redacted or approved by
the parties involved for public release.
Matter of:Ogden Support Services, Inc.
File: B-270012.4
Date:October 3, 1996
Ronald K. Henry, Esq., and Mark A. Riordan, Esq., Kaye, Scholer,
Fierman, Hays & Handler, for the protester.
Dennis J. Riley, Esq, and Joseph G. Billings, Esq., Riley & Artabane,
P.C., an intervenor.
Diane Florkowski, Esq., Central Intelligence Agency , for the agency.
Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency had no reasonable basis to give a near perfect score for past
performance to the proposal of the awardee of a contract for mail
courier services where the record reflects the awardee had limited
past performance in this area while the protester's proposal, with
clearly superior past performance, was given only a slightly higher
score.
DECISION
Ogden Support Services, Inc. protests the award of a contract to
American Systems Corporation (ASC) under request for proposals (RFP)
No. 95-W001, issued by the Central Intelligence Agency (CIA), Office
of Information Technology, for mail and courier services.
We sustain the protest.
This award was the subject of our decision in Ogden Support Servs.,
Inc., B-270012.2, Mar. 19, 1996, 96-1 CPD para. 177, in which we sustained
Ogden's protest against the award to ASC on the basis that the high
evaluation rating of ASC's past performance was unsupported and thus
the determination that ASC's and Ogden's proposals were technically
equal, upon which the selection of ASC's lower evaluated cost proposal
was based, was not justified. Specifically, we found that the record
contained insufficient information and analysis justifying ASC's near
perfect rating for past performance because ASC's proposal reflected
only limited experience in mail and courier and/or similar
administrative support services.
(The RFP called for information from offerors that "demonstrated
successful performance on similar efforts" and defined"similar
experience" as "providing support to similar type mail and courier
efforts and/or administrative support service type efforts.") We
recommended that the CIA reevaluate ASC's and Ogden's technical
proposals in this respect and then determine and document whether they
in fact were technically equal.[1]
The CIA did not request reconsideration. Neither did it obtain
additional information from the offerors before reevaluating their
past performance or, if it believed that the description in the RFP of
experience to be considered in evaluating past performance was too
narrow, revise the RFP and request revised proposals. Instead, it
instructed its same evaluators (who were not provided a copy of our
decision) to reevaluate proposals, to consider only the existing
documentation of past performance, and to consider experience on
contracts for "maintenance, janitorial, and facilities-type services"
as "similar administrative services." In accordance with these
instructions, the evaluators simply confirmed ASC's near perfect score
for past performance; based on the fact that the point scores did not
change and that "the TMET [Technical Management Evaluation Team]
report identified neither distinguishing strengths nor any weaknesses
related to past performance," the CIA then confirmed the award to ASC
based on ASC's and Ogden's technically equal proposals and ASC's lower
evaluated cost.
We sustain this protest because the CIA's actions here ignore our
prior decision, the thrust of which was that the record did not
support ASC's high point score for past performance and the resulting
conclusion that the competing proposals were essentially equal
technically. There is no new information in the record, and no new
meaningful rationale to support the ASC 's past performance score or
the ultimate technical equality determination. The CIA in essence did
no more than reiterate its earlier conclusions. As before, we find
that these conclusions lack a reasonable basis.
As noted by the TMET, the mail and courier service in ASC's referenced
prior contracts was only peripheral and "unlike that of the effort
defined in the SOW." Moreover, as stated in our prior decision as well
as the prior TMET report, only two of ASC's contracts included any
meaningful mail or courier service; indeed, the prior TMET report
identified this as one of the two weaknesses in ASC's proposal.
Furthermore, neither of these contracts was exclusively for mail or
courier
services--one was an engineering and technical support services
contract which expressly included mail pickup delivery services and
the other was for support services in support of a command, control
and communications system which included the transportation of
classified documents between various locations. The other four
referenced contracts considered by the evaluators as providing
"similar experience" did not include any significant mail or courier
services. One involved the installation of computer hardware, where
presumably the hardware and documentation was delivered to job-sites;
a second was for maintenance of classified electronic equipment, with
no indication that mail courier services were involved; a third was
for the installation of cable, which involved the delivery of material
to different locations; and the fourth was to acquire and integrate
electronic equipment, which included the shipment of classified
equipment. Furthermore, we question whether these latter four
contracts can even be considered "maintenance, janitorial and
facilities-type services" under the CIA's relaxed definition of
"similar experience."
The CIA does not explain why positive experience in "maintenance,
janitorial, and facilities-type services" or other services that only
peripherally involve mail or courier service, such as the contracts
performed by ASC, justifies an excellent rating for past performance,
and nothing in the record indicates how ASC's past performance on such
contracts could justify such a rating.[2] In this regard, since the
RFP indicated that proposals would be qualitatively evaluated, it
follows that a proposal reflecting more relevant successful past
performance should be rated higher than a proposal reflecting clearly
less relevant past performance. See Fidelity Technologies Corp.,
B-258944, Feb. 22, 1995, 95-1 CPD para. 112. Ogden's referenced contracts
were for highly relevant mail and courier services, for which it
received a perfect score for past performance. Had ASC's past
performance been reasonably evaluated in accordance with the RFP, in
light of its significantly more limited, albeit successful, experience
it should not have received anything close to a near perfect score.
Awarding ASC a near perfect score for past performance effectively
removed the evaluation weight assigned the past performance criterion.
See Trijicon, Inc., 71 Comp. Gen. 41 (1991), 91-2 CPD para. 375.
We further note that under the agency's source selection plan, an
"excellent" score should be awarded a proposal for:
"a comprehensive and thorough presentation of exceptional merit
with one or more identified major strengths. There are all
strong points and no weaknesses or deficiencies identified."
The record indicates no "identified major strengths" that would
support such a rating for ASC's past performance.
In sum, the record still does not reasonably support ASC's past
performance score; therefore, the CIA did not have a proper basis upon
which to conclude that Ogden's and ASC's proposals were technically
equal overall.
We again recommend that the CIA properly evaluate ASC's past
performance and then determine whether ASC's and Ogden's proposals
are, in fact, technically equal or whether Ogden's proposal is
actually technically superior as is suggested by the record. We
further recommend that the contract awarded to ASC be terminated for
convenience and award made to Ogden unless the CIA can reasonably
determine, in accordance with this decision, that the proposals are
technically equal or that any superiority in Ogden's proposal does not
offset ASC's cost advantage.[3] If this determination cannot be made,
inasmuch as the first year of contract performance almost has been
completed, we recommend that Ogden be reimbursed its proposal
preparation costs. 4 C.F.R. sec. 21.8(d)(2) (1996). Alternatively, if
the agency finds that the RFP defined "similar experience" too
narrowly, it may amend the RFP accordingly, obtain revised proposals,
and make award as appropriate. In any case, we recommend that the
protester be reimbursed its costs of filing and pursuing the protest,
including reasonable attorneys' fees. 4 C.F.R. sec. 21.8(d)(1). The
protester should submit its certified claim for costs to the
contracting agency within 90 days of receiving this decision. 4
C.F.R. sec. 21.8(f)(1).
The protest is sustained.
Comptroller General
of the United States
1. In our decision, we found the other issues raised by the protester
relating to the technical evaluation and conduct of discussions to be
without merit. Thus, to the extent Ogden again raises these issues
they will not be considered. See Ogden Support Servs., Inc.,
B-270012.3, Apr. 24, 1996, 96-1 CPD para. 291.
2. As stated in our prior decision, ASC's near perfect past
performance rating could not reasonably be justified "without
additional information and analysis" in the record; there is no
further information or analysis presented here.
3. As indicated in our prior decision, the agency should properly
calculate the amount of ASC's cost advantage since the record contains
no documents that reflect ASC's actual advantage.
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