BNUMBER: B-270354.2
DATE:
TITLE:
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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-270354.2
Date:October 29, 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., and Catherine E.
Pollack, Esq., Fried, Frank, Harris, Shriver & Jacobson, for SSI
Services, Inc., the intervenor.
Lisa Miller, Esq., Central Intelligence Agency, for the agency.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of
the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
Protest that proposal was misevaluated is denied where the record
shows that the evaluated weaknesses were reasonable and consistent
with the evaluation factors.
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 Compound, Langley, Virginia, and at
13 facilities in the Washington, D.C. metropolitan area. Ogden
contends that the evaluations and source selection decision were
unreasonable.
We deny the protest in part and dismiss it in part.
The agency previously awarded a contract to SSI under this RFP.
Ogden, the incumbent contractor, protested the award on a number of
grounds. Our Office sustained that protest in Ogden Support Servs.,
Inc., B-270354, Feb. 28, 1996, 96-1 CPD para. 175, on the basis that the
CIA failed to conduct meaningful discussions. Our decision also noted
other problems with the procurement: the RFP did not disclose the
relative evaluation weight of cost, and the evaluation documentation
did not support the technical ratings. We recommended that the agency
amend the solicitation, reopen discussions with the competitive range
offerors, request revised best and final offers (BAFO), and make a new
source selection decision based upon the evaluation of the revised
BAFOs.
The CIA subsequently amended the RFP. The amended RFP contemplated
the award of a cost-plus-award-fee, level-of-effort contract for 1
year with 4 option years. The RFP stated a best value basis for award
with all non-cost evaluation factors combined being significantly more
important than cost. The non-cost evaluation factors were
technical/management, experience/past performance, and security.
Security was to be evaluated on a pass/fail basis and
technical/management was three times more important than
experience/past performance. The technical/management factor
contained the following subfactors listed in descending order of
importance: (1) staffing plan; (2) contract phase-in plan; (3)
logistics management plan; (4) training plan; (5) quality control
plan; and (6) health, safety and environmental plan. The
experience/past performance factor contained the following subfactors:
(1) company experience and (2) record of past performance. The RFP
also identified a number of sub-subfactors under each subfactor.
On March 25, 1996, the agency reopened discussions with the four
competitive range offerors. Written discussion questions were sent to
each offeror addressing the weaknesses, deficiencies, and concerns
which the agency had determined to exist in the proposals upon which
the prior source selection was based, and offerors were invited to
submit questions concerning the RFP or the written discussion
questions. All the offerors submitted questions, to which the CIA
responded in writing. The CIA then requested submission of best and
final offers (BAFO) by May 6. BAFOs were to be complete proposals and
not just a statement of revisions to the terms of the previously
submitted proposals. Offerors were advised that CIA intended to
evaluate BAFOs and make award without further discussions unless the
contracting officer determined that further discussions were
necessary.
All four offerors (Ogden, SSI, [DELETED], and [DELETED] submitted
revised BAFOs. The results of the evaluations with weighted
evaluation scores appear below:[1]
Offeror Technical (750)Experience (250)Total
(1,000) Cost
($)
SSI 675 200 875 92,928,753
[DELETED] 630 180 810 94,070,289
[DELETED] 510 200 710 83,310,320
Ogden 488 180 668 88,051,242
The Source Selection Authority (SSA) determined that SSI had submitted
the highest rated proposal representing the best value to the
government, considering both cost and non-cost factors. In this
regard, the SSA found that SSI "clearly . . . submitted the most
technical superior" BAFO; that SSI's higher cost was attributable to
its proposed staffing approach with [DELETED]; and that SSI's proposed
technical approach reflected substantial added value for the evaluated
cost.
With respect to Ogden's proposal, the SSA determined:
"[Ogden's] lower cost is centered in [DELETED]. This approach
provides less service and a higher degree of risk to critical
operations. I believe that the potential cost savings are not
sufficient to justify awarding to a lower rated technical
approach. Ogden's technical rating is lower than [DELETED] and
the proposed cost is higher than [DELETED]. Therefore, the Ogden
proposal is rated fourth."
The SSA had similar concerns about [DELETED]'s proposal and determined
that even at the lowest proposed and evaluated cost, the potential
cost savings were not sufficient to justify selecting this offeror's
lower-rated technical approach over the superior approach of SSI. On
July 18, CIA awarded the contract to SSI. This protest followed with
allegations concerning the evaluation of both Ogden's and SSI's
proposals and a contention that meaningful discussions were not
conducted.
The evaluation of proposals is primarily a matter within the
contracting agency's discretion, since it is responsible for defining
its needs and for deciding on the best methods of accommodating them.
Smith Bright Assocs., B-240317, Nov. 9, 1990, 90-2 CPD para. 382. In
reviewing protests of agency evaluations, our Office will not question
an agency's evaluation unless the record shows that it is unreasonable
or inconsistent with the RFP's evaluation criteria. Cubic Defense
Sys., Inc. and Metric Sys. Corp., B-248649.2; B-248649.3, Sept. 25,
1992, 92-2 CPD para. 205. The protester bears the burden of proving that
an evaluation is unreasonable; mere disagreement with the agency does
not render the evaluation unreasonable. ESCO, Inc., 66 Comp. Gen. 404
(1987), 87-1 CPD para. 450. Ogden has not met its burden here.
Ogden makes numerous allegations of unreasonable or improper
assessments of specific aspects of its proposal. These include
allegations that the agency unreasonably evaluated as proposal
weaknesses the qualifications of specific personnel, the trade
staffing skill mix, the contract phase-in plan, the logistics
management plan, the training plan, and the record of Ogden's past
performance. Ogden also asserts that the evaluation of its proposal
was unreasonable because, as the incumbent contractor with an
excellent record of award fee performance, its proposal should not
receive lower scores than those of other offerors. While we do not
discuss herein all of Ogden's allegations, we have reviewed them all
and, as illustrated by the following examples, find that the record
(with one immaterial exception)[2] supports the agency's technical
evaluation of Ogden's proposal.
For example, Ogden alleges that the CIA unreasonably determined that
the person Ogden proposed for the position of MIS System Administrator
had limited applicable experience in operation/administration of a
MAXIMO/LAN[3] system. Ogden's BAFO stated the responsibilities of the
system administrator position and that the person proposed for this
position:
"has three years' experience using MAXIMO and has completed
training courses in Arcserve Ver.5x, MAXIMO Report Writer School,
MAXIMO Series 5 System Administrator School, MAXIMO Series 5
Basic Training, PC Support Specialist MAXIMO Series 3 Basic
Training."
Since Ogden's BAFO did not list any actual system administration
experience for this person, the CIA could reasonably find this
person's relevant experience was limited in this respect. While Ogden
contends that the CIA could not expect all experience of this
individual to be described in the proposal, the RFP stated under the
most important evaluation subfactor--staffing plan--that "years of
experience for key personnel" would be evaluated and the record shows
that the CIA informed Ogden during discussions that the agency
considered this position to be key:
"Provide updated resumes for all on-site key personnel including,
but not limited to . . . MIS Administrator and staff, if any."[4]
In sum, the agency reasonably determined that this person lacked
experience relevant to the position of MIS system administrator, and
the evaluation of this as a weakness was consistent with the staffing
plan subfactor.
A second example concerns the evaluation under the second most
important technical evaluation subfactor--contract phase-in plan. CIA
found as a weakness that Ogden's "major restructuring of trade skill
mix [was] not documented in [the] transition plan." The protester
essentially alleges that, as the incumbent, all of its personnel were
already on board, so no delays in hiring personnel would occur. Thus,
Ogden asserts that the weakness did not exist and, moreover, it was
not given credit for the fact that its proposal would not have hiring
delays.
Under this subfactor, the RFP identified two evaluation
sub-subfactors--staff hiring plan and transition plan. The agency
evaluated the weakness as existing in the transition plan, not in the
hiring plan. In its evaluation of the hiring plan, the agency
specifically noted as proposal strengths Ogden's retention of current
staff, the continuity of Ogden's service, and Ogden's brief hiring
period. Thus, the agency did credit Ogden's proposal for not having
hiring delays. However, quite apart from hiring new personnel, Ogden
proposed to reorganize its trade staffing patterns such that
[DELETED]. Ogden's proposed phase-in plan did not provide details
about the transition of this restructured skill mix and its impact on
performance upon the contract start. Thus, the CIA could reasonably
find that this was a weakness in Ogden's transition plan.
Ogden contends that the agency improperly double or triple counted
specific weaknesses under more than one evaluation subfactor. It is
improper for an agency to exaggerate the stated importance of any one
evaluation criterion by considering an element of that criterion under
one or more other evaluation criteria. See J.A. Jones Management
Servs., Inc., B-254941.2, Mar. 16, 1994, 94-1 CPD para. 244. However, an
agency is not precluded from considering an element, such as an
offeror's experience, under more than one evaluation criteria where
the element is relevant and reasonably related to each criterion under
which it is considered. Teledyne Brown Eng'g, B-258078; B-258078.2,
Dec. 6, 1994, 94-2 CPD para. 223. Here, the alleged examples of double or
triple counting were not improper because the agency legitimately
considered elements which were relevant and reasonably related to the
various evaluation subfactors under which they were considered.
For instance, Ogden alleges that the CIA evaluated the experience and
education of its proposed Quality Control, Safety and Environmental
Manager as a weakness under the staffing plan, the quality control
plan, and the health, safety and environmental plan subfactors, thus
improperly triple counting the weakness. Ogden's proposal designated
as a key personnel one manager responsible for the duties under both
the quality control area and the health, safety and environmental
area, and the CIA considered this individual's experience under three
subfactors. The applicable sub-subfactors stated for these subfactors
were:
"Years of experience for key personnel and completeness of
resumes" (staffing plan),
"Staff dedicated to quality assurance" (quality control plan),
"Procedures for health, safety and environmental compliance
reporting and inspections" (health, safety and environmental
plan).
Thus, the RFP provided that the experience of key personnel would be
evaluated under the staffing plan subfactor and that the staff
dedicated to quality assurance would be evaluated under the quality
control plan subfactor. In addition, inasmuch as Ogden's proposed
health, safety and environment plan specifically stated that this
manager [DELETED] it was apparent that this individual was integral to
Ogden's procedures for health, safety and environmental compliance
reporting and inspections, which the RFP stated would be evaluated
under the health, safety and environmental plan subfactor. Thus, the
evaluation of the proposed manager's experience under each subfactor
was legitimately related to that subfactor and did not constitute
improper multiple counting of an evaluation criterion. See id.
Ogden contends that the overall scoring of its BAFO was unreasonable
because, although the CIA told Ogden during a debriefing that its BAFO
had improved to some degree over its prior proposal, its score
allegedly decreased rather than increased. We find no merit to this
argument. The allegation is based on Ogden's computation and
comparison of the mathematical average of the evaluators' scores of
its prior proposal and its BAFO. However, the agency did not use
average scores; the evaluators met as a group to discuss their
individual ratings and arrived at a consensus score.[5] Ogden's
consensus score increased from 593 for its prior proposal, to the
present score of 668 for its BAFO. Thus, we see no merit to this
contention.
Ogden also alleges that the CIA used "risk" as an unstated evaluation
factor, citing the SSA's statements that Ogden's proposed approach
presented higher risks than SSI's proposed approach. However, an
agency is not precluded from considering any proposal risk arising
from an offeror's approach or demonstrated lack of understanding that
is intrinsic to the stated evaluation factors. 4th Dimension
Software, Inc.; Computer Assocs. Int'l, Inc., B-251936; B-251936.2,
May 13, 1993, 93-1 CPD para. 420. Here, the SSA specifically stated that
the risk in Ogden's proposal involved "critical operations" and arose
from [DELETED]. Thus, the SSA's assessed the risk in Ogden's proposal
arising from the offerors staffing approach. Since staffing plan was
the most important subfactor under the most important
factor--technical/management-- consideration of risk here was
intrinsic to the stated evaluation factors and was thus proper.
Ogden also alleges that the CIA did not conduct meaningful discussions
consistent with the recommendation in our prior decision. We
disagree. In the previously protested selection process, the CIA had
compiled an extensive list of weaknesses and deficiencies for each
proposal, but failed to identify almost all of these items during
discussions; we found that these discussions were inadequate. In
response to our recommendation, the CIA reopened discussions and
provided each offeror a detailed set of questions identifying the
evaluated weaknesses and deficiencies it had previously documented.
Since the discussions identified all significant weaknesses and
deficiencies in the proposals, they were clearly meaningful.[6] To
the extent Ogden alleges that the agency should have reopened
discussions because of the evaluated weaknesses in its BAFO, we note
that the RFP announced that no further discussions were contemplated
after the submission of BAFOs and that an agency need not reopen
discussions to resolve technical deficiencies first introduced in an
offeror's BAFO. IPEC Advanced Sys., B-232145, Oct. 20, 1988, 88-2 CPD para.
380.
Ogden also protests the evaluation of SSI's proposal. However, Ogden
is not an interested party for the purpose of protesting the
evaluation of SSI's proposal as there is an intervening offeror with a
higher technical rating and a lower cost (i.e., [DELETED] in line for
award ahead of Ogden. Our Bid Protest Regulations, 4 C.F.R. sec.
21.1(a) and 21.0(a) (1996), require a protester to be an actual or
prospective bidder or offeror whose direct economic interest would be
affected by the award of a contract or the failure to award a
contract. Determining whether a party is interested involves
consideration of a variety of factors, including the nature of issues
raised, the benefit of relief sought by the protester, and the party's
status in relation to the procurement. Black Hills Refuse Serv., 67
Comp. Gen. 261 (1988), 88-1 CPD para. 151. A protester is not an
interested party where it would not be in line for contract award were
its protest to be sustained. ECS Composites, Inc., B-235849.2, Jan.
3, 1990, 90-1 CPD para. 7. Ogden has not challenged the technical
evaluation of [DELETED]'s higher-rated, lower cost BAFO; to the
contrary, Ogden's protest frequently referenced [DELETED]'s BAFO as
technically similar to Ogden's in order to lend credence to Ogden's
assertion that its proposed approach was technically sound. Ogden is
thus not an interested party for the purposes of protesting issues
concerning the evaluation and selection of SSI's proposal, and we
therefore dismiss the remainder of Ogden's protest. See Amcare
Medical Servs., Inc., B-271595, July 11, 1996, 96-2 CPD para. 10.
The protest is denied in part and dismissed in part.
Comptroller General
of the United States
1. All four proposals passed under the security factor.
2. We found one immaterial instance of unreasonable evaluation with
respect to Ogden's past performance under a contract with the General
Accounting Office (GAO). Although the evaluators noted as a weakness
Ogden's failure to provide past performance data for the GAO contract,
the record shows that Ogden's BAFO provided a detailed description of
its performance under that contract. However, even if Ogden's
proposal received the 20 additional points for this subfactor that
Ogden states that it lost because of this misevaluation (or even the
maximum possible score for this subfactor--an additional 40 points),
its score would still be the lowest technical score given the four
proposals.
3. MAXIMO is an integrated facilities management software package used
by the agency. LAN means local area network.
4. Ogden unpersuasively contends that, since the offeror determines
who its key personnel are, this discussion question only advised it to
submit a resume if it proposed the system administrator as a key
personnel, which Ogden did not do. We think the question clearly
indicated that the agency considered this on-site personnel position
to be a key personnel position, for which a resume was expected to be
submitted.
5. As subjective judgments of individual evaluator's may vary greatly,
there is nothing improper with this method of consensus scoring. See
Syscon Servs., Inc., 68 Comp. Gen. 698 (1989), 89-2 CPD para. 258.
6. We find no merit to Ogden's allegations of misleading discussions.
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