BNUMBER: B-270354
DATE: February 28, 1996
TITLE: Ogden Support Services, Inc.
**********************************************************************
DECISION 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-270354
Date:February 28, 1996
Ronald K. Henry, Esq., and Mark A. Riordan, Esq., Kaye, Scholer,
Fierman, Hays & Handler, for the protester.
Joel Feidelman, Esq., James J. McCullough, Esq., Catherine E. Pollack,
Esq., and Lawrence E. Ruggiero, Esq., Fried, Frank, Harris, Shriver &
Jacobson, for SSI Services, Inc., an intervenor.
Lisa Miller, Esq., Central Intelligence Agency, for the agency.
Henry J. Gorczycki, Esq., and Guy R. Pietrovito, Esq., Office of the
General Counsel, GAO, participated in the preparation of the
decision., for the protester.
DIGEST
Agency failed to conduct meaningful discussions with the protester
where it did not identify during discussions the significant evaluated
weaknesses and deficiencies in the protester's proposal that needed to
be addressed in order for the protester's proposal reasonably to be
considered for award.
DECISION
Ogden Support Services, Inc. protests the award of a contract to SSI
Services, Inc. under request for proposals (RFP) No. 95-Z06, issued by
the Central Intelligence Agency (CIA) for operations and maintenance
services at the CIA Headquarters, Langley, Virginia, and at 13 other
facilities in the Washington, D.C. metropolitan area. Ogden protests
the CIA's evaluation of proposals, conduct of discussions, and source
selection decision.
We sustain the protest because the agency failed to conduct meaningful
discussions.
The RFP contemplated the award of a cost-plus-award-fee,
level-of-effort contract for a 5-year contract period.[1] A best
value basis for award was stated with technical/management,
experience/past performance, security, and cost identified as the
evaluation factors. The security factor was to be evaluated on a
pass/fail basis. The technical/management factor was said to be three
times more important than experience/past performance factor. The
technical/management factor listed a number of subfactors, of which
the staffing plan subfactor was identified as being substantially more
important than any of the other subfactors. The RFP did not identify
the relative weight of the cost factor, but only stated that cost
would become more important as the difference in technical evaluation
scores decreases and that cost "may become" determinative when
proposals are technically equal.[2]
The agency received seven proposals, of which four, including Ogden's
and SSI's, were included in the competitive range. The initial
technical scores and proposed costs of the competitive range proposals
were:
Offeror Technical Score
(1,000 points maximum)Cost
SSI [DELETED] [DELETED]
Offeror A [DELETED] [DELETED]
Offeror B [DELETED] [DELETED]
Ogden [DELETED] [DELETED]
Ogden's relatively low technical ranking reflected the technical
evaluators' determination that Ogden's staffing plan contained a
number of significant weaknesses and deficiencies, including proposed
organizational structure and overall inadequate staffing.
Written discussions were conducted with each competitive range offeror
based on questions prepared by the technical evaluators. Most of
these questions requested general clarification or additional
information. For example, of the nine questions directed to Ogden
concerning its technical proposal, four were general questions asked
of all four offerors and one identified a typographical error in an
acronym. The remaining questions identified a few staffing
deficiencies, which were similar in all four proposals, such as that
proposed personnel for specifically identified categories fell one or
a few persons below the minimum required level (e.g., electricians,
Central Plant staff), and also requested additional information. No
question to Ogden identified the agency's concerns with Ogden's
overall staffing or organizational structure.
The agency requested and received best and final offers (BAFO), which
were evaluated as follows:
Offeror Technical Score Cost
SSI [DELETED] $87,655,923
Offeror A [DELETED] [DELETED]
Offeror B [DELETED] [DELETED]
Ogden [DELETED] [DELETED]
In selecting SSI for award, the source selection authority (SSA)
found:
"[Ogden's] staffing plan is marginal. Its proposed
organizational structure fragments the trade shops and external
facilities. [DELETED]. The total staff of [DELETED] is less
than the [g]overnment estimate of [DELETED]. Much of this
deficit results from an excessively small management staff
[DELETED]. This creates significant span of control concerns for
many management positions within the organizations. [Ogden's]
major fragmentation of trade shops and its proposed minimum
management staffing contributed to a fourth place ranking.
. . . . .
"[Ogden's] technical proposal had some significant weaknesses and
is ranked a distant fourth. [Ogden's] proposed cost is less than
SSI's for the full contract term [DELETED] The significant risks
in [Ogden's] technical proposal are not offset by the prospective
cost savings."
The CIA awarded the contract to SSI, and Ogden protested to our Office
within 5 calendar days of receiving its requested debriefing.
Performance of SSI's contract has not been suspended because the
agency determined that performance was in the best interest of the
government.
Ogden protests, among other things, that discussions were not
meaningful because the CIA did not inform it of the evaluated
weaknesses and deficiencies in its proposal.
In negotiated procurements, contracting agencies generally must
conduct discussions with all offerors whose proposals are within the
competitive range. FAR sec. 15.610; E.L. Hamm & Assocs., Inc., B-250932,
Feb. 19, 1993, 93-1 CPD para. 156. Although discussions need not be
all-encompassing, they must be meaningful; that is, an agency is
required to point out weaknesses, excesses, or deficiencies in a
proposal as specifically as practical considerations permit so that
the agency leads the offeror into areas of its proposal which require
amplification or correction. E.L. Hamm & Assocs., Inc., supra;
Northrop Worldwide Aircraft Servs., Inc., B-262181, Oct. 27, 1995,
95-2 CPD para. 196. Discussions cannot be meaningful if an offeror is not
advised, in some way, of the weaknesses, excesses, or deficiencies in
its proposal that must be addressed in order for the offeror to be in
line for award. Id.
We find that the agency failed to advise Ogden of the weaknesses and
deficiencies in its proposal that prevented Ogden from reasonably
being considered for award, and, accordingly, that the CIA did not
conduct meaningful discussions with Ogden. As stated above, the CIA,
in its initial evaluation, assessed a number of significant weaknesses
or deficiencies, including Ogden's assertedly inadequate overall
staffing, inadequate management staffing resulting in "span of control
concerns," [DELETED], and an organizational structure that allegedly
fragmented the trade shops and external facilities. The written
discussion questions provided to Ogden did not address any of these
significant evaluation concerns. While the CIA informed Ogden that
its proposed electrician staffing and Central Plant staffing were
below the levels required by the RFP, there was no mention of Ogden's
management staffing or overall staffing levels. Nor did the CIA
identify its concern for trade shop fragmentation in Ogden's proposed
organizational structure. As indicated in the above-quoted source
selection statement, these evaluated staffing and organizational
problems were the overriding concerns upon which the SSA relied in
determining that Ogden's lower-cost proposal would not be selected for
award.
SSI argues that the CIA was not required to identify the weaknesses
and deficiencies evaluated in Ogden's proposal because they were so
inherent in Ogden's technical approach that they could not be changed
without a substantial revision of Ogden's proposal. We disagree.
These evaluated weaknesses and deficiencies could be addressed without
substantial revision of Ogden's proposed approach. For example, Ogden
could address the agency's concerns about a minimal number of
management staff by increasing the proposed staff level. See Northrop
Worldwide Aircraft Servs., Inc., supra; Presentations South, Inc.,
B-229842, Apr. 18, 1988, 88-1 CPD para. 374.
Also, with regard to the fragmented trade shops, the agency was
apparently concerned that Ogden's proposed staff organization shows
that [DELETED]. These functions are but one part of a large
organization and all of the functions are already unified under the
same manager, such that any change to Ogden's organization to deal
with the agency's concern would be minor in the context of its overall
proposal.
The agency argues that Ogden was not prejudiced, even assuming
meaningful discussions were not conducted. We disagree.
Competitive prejudice is an essential element of every viable protest.
Lithos Restoration, Ltd., 71 Comp. Gen. 367 (1992), 92-1 CPD para. 379.
Where an agency violates procurement requirements, a reasonable
possibility of prejudice is a sufficient basis for sustaining a
protest, and we will resolve any doubts concerning the prejudicial
effect of the agency's action in favor of the protester. Foundation
Health Fed. Servs., Inc.; QualMed, Inc., B-254397.4 et al., Dec. 20,
1993, 94-1 CPD para. 3; The Jonathan Corp.; Metro Mach. Corp., B-251698.3;
B-251698.4, May 17, 1993, 93-2 CPD para. 174, aff'd, Moon Eng'g Co.,
Inc.--Recon., B-251698.6, Oct. 19, 1993, 93-2 CPD para. 233. Where, as
here, an impropriety in the conduct of discussions is found, it must
be clear from the record the protester was not prejudiced before we
will deny the protest. Alliant Techsystems, Inc.; Olin Corp.,
B-260215.4; B-260215.5, Aug. 4, 1995, 95-2 CPD para. 79; National Medical
Staffing, Inc., B-259402; B-259402.2, Mar. 24, 1995, 95-1 CPD para. 163.
The CIA alleges that even assigning the maximum possible evaluation
points in the areas in which Ogden's proposal was downgraded and for
which Ogden had not received meaningful discussions, the impact on its
overall technical score would be negligible and that an intervening
offeror with a higher-rated, lower-cost BAFO would be in line for
award ahead of Ogden. However, the agency's calculation of the effect
of its failure to conduct meaningful discussions ignores virtually all
of the weaknesses/deficiencies that are the basis for our finding that
the CIA did not conduct meaningful discussions; the CIA's calculation
is limited to four other undisclosed "deficiencies" which are minor in
the overall evaluation. This does not show that the protester was not
prejudiced by the agency's failure to conduct meaningful discussions,
such that the protest should be denied. Alliant Techsystems, Inc.;
Olin Corp., supra. Furthermore, our review shows that, had the agency
disclosed during discussions the significant evaluated
weaknesses/deficiencies found in Ogden's proposal, Ogden would have
had an opportunity to improve its score by more than [DELETED]
points--to a level approaching SSI's score--and its proposal may well
have remained low in cost. Thus, the record evidences a reasonable
possibility that, but for the deficient discussions, Ogden could have
been in line for award and was therefore prejudiced. Id. We sustain
Ogden's protest on this basis.
Given our finding above and our recommendation to reopen the
competition, Ogden's protest of the CIA's evaluation of proposals and
source selection decision are academic. Nevertheless, the protester
has raised some valid concerns about the agency's evaluation of
proposals that warrant the agency's attention upon reevaluation. In
particular, the CIA's evaluation is not sufficiently documented to
support the technical evaluation consensus scores. While the
individual evaluators' worksheets document the individual evaluators'
scores, the consensus scores are not reasonably related to the
individual evaluators' scores. In fact, the consensus scoring of
SSI's proposal is inexplicably higher than any of the individual
evaluators' scores, while the consensus scoring of Ogden's proposal is
inexplicably lower than any of the individual evaluators' scores. The
agency should adequately document all aspects of its future evaluation
and source selection process. See Southwest Marine, Inc.; Am. Sys.
Eng'g Corp, B-265865.3; B-265865.4, Jan. 23, 1996, 96-1 CPD para. ___.
We recommend that the CIA amend the RFP to state the relative weight
of cost, reopen discussions with the competitive range offerors,
request revised BAFOs, and make a new source selection decision based
upon the evaluation of revised BAFOs. If the CIA determines that
award to an offeror other than SSI is appropriate, the agency should
terminate the contract with SSI and make another award. We also
recommend that the protester be reimbursed its costs of filing and
pursuing its protest, including reasonable attorneys' fees. Bid
Protest Regulations, sec. 21.8(d)(1), 60 Fed. Reg. 40,737, 40,743 (Aug.
10, 1995) (to be codified at 4 C.F.R. sec. 21.8). The protester should
submit its certified claim for costs to the contracting agency within
90 days of receiving this decision. Bid Protest Regulations, sec.
21.8(f)(1).
The protest is sustained.
Comptroller General
of the United States
1. This RFP combined the requirements from several contracts, for
which Ogden was the incumbent contractor.
2. This scheme fails to state the relative importance of the cost
factor as required by Federal Acquisition Regulation (FAR) sec.
15.605(e). Where a solicitation fails to explicitly state the
relative weight of cost in the evaluation scheme, it must be presumed
that cost and technical considerations will be accorded equal weight
and importance in the evaluation. Meridian Corp., B-246330.3, July
19, 1993, 93-2 CPD para. 29.
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