BNUMBER: B-276064
DATE: May 7, 1997
TITLE: Analytical & Research Technology, Inc., B-276064, May 7, 1997
**********************************************************************
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:Analytical & Research Technology, Inc.
File: B-276064
Date:May 7, 1997
Douglas L. Patin, Esq., Spriggs & Hollingsworth, for the protester.
Maj. Michael O'Farrell, Esq., Department of the Army, for the agency.
Katherine Riback, Esq. and Paul Lieberman, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency did not conduct misleading discussions where the protester
unreasonably interpreted agency's explanation regarding staffing
requirements as permitting an approach that was inconsistent with the
solicitation requirements.
DECISION
Analytical & Research Technology, Inc. (ART) protests the Department
of the Army's proposed award of a contract to J.G. Van Dyke &
Associates, Inc. to provide computer network integration and automated
data processing (ADP) operations support for the National Ground
Intelligence Center (NGIC) under request for proposals (RFP) No.
DAHC90-95-R-0036. ART contends that the Army conducted misleading
discussions with ART.
We deny the protest.
The RFP contemplates the award of a labor hours contract for a base
year with four 1-year option periods to provide the NGIC with routine
ADP technical assistance and hardware maintenance, installation and
deinstallation of ADP support. The RFP provided that offerors were
permitted to propose any mix of labor categories to perform the
required tasks provided that the proposed individuals "have the
requisite years of experience in each of the skill areas listed below
for the labor category for which they are proposed." (Emphasis
added.) The skill areas were as follows:
"Skill Area # 1- Experience in UNIX operating systems software
design, development and configuration management and specific
experience in Solaris 1.X and 2.X.
"Skill Area # 2- Experience in Client-Server Relational Databases
and Software Applications and specific experience in Sybase,
Progress, and Oracle.
"Skill Area # 3- Experience in Imagery Exploitation Software
Applications and specific experience in DIEPS.
"Skill Area # 4- Experience in Asynchronous Transfer Mode (ATM),
TCP/IP, Cisco and Newbridge Routers and Network Management
Software Applications and specific experience in Wollongon
Pathway.
"Skill Area # 5- Experience in DEC OSF/1, installation,
utilities, configuration and specific experience in MIS, NFS, and
C2.
"Skill Area # 6- Experience in Hardware/Software Configuration
Management and Software Applications and specific experience in
Autocad, Netcensus, Progress, Oracle, Applix-ware, and
Wordperfect for UNIX, cc:mail for UNIX.
"Skill Area # 7- Experience in ADP systems operations and
specific experience in UNIX/Novell Fileservers, IBM/VM Mainframe,
Network Management Systems, Communications Security (COMSEC).
"Skill Area # 8- Experience in MAC OS and Electronic Publishing
Software Applications and specific experience in MOSAIC, Web
Servers, Framemaker, QUARK, UNIX CorelDraw.
"Skill Area # 9- Experience in Computer Security Support,
Computer Trusted Systems and Accreditations."
The skill areas required by the RFP for each of the proposed labor
categories were as follows:
Proposed Labor Category Skill Area(s)
Systems Analyst 1, 2, and 3
Computer Specialist 1, 2, 3, 5, and 8
Communications Technician 4
Communications Engineer 1, 4, 7
Systems Administrator 1, 2, 4
Configuration Management Specialist6
Computer Security Analyst 9
Computer Shift Operator 7
The RFP provided that award would be made to the responsible offeror
whose proposal represented the best value to the government, taking
into consideration price and technical quality, with the technical
factors being more important than price. The RFP listed the following
technical factors, in descending order of importance: (1) technical
skills, qualifications, and experience-personnel, (2) technical
skills, qualifications, and experience-corporate, (3) technical
approach, and (4) cost.
On May 30, 1996, the agency received initial proposals from four
offerors. Each proposal included a labor category matrix for key
personnel and corresponding resumes for individuals proposed to comply
with the RFP's experience requirements. ART's labor category matrix
for its proposed key personnel indicated that ART interpreted the RFP
as requiring that an individual proposed for a particular labor
category had to be qualified in all of the skill areas and the
applicable subskill areas listed for that particular labor category.
For example, ART's initial proposal reflected ART's understanding that
an individual proposed as a systems analyst must be qualified in all
of the skill areas required for that labor category--that is, skill
areas 1, 2, and 3, and each of the subskill areas contained
thereunder. In instances where ART could not find individuals that
met the RFP requirements, it proposed individuals that most nearly
satisfied the requirements in order to receive a portion of the
available points.
Van Dyke's proposal received the highest technical score of 150 points
out of 350; FC Business's proposal received the second highest score
of 120.9 points; ART's proposal received the third highest score of
117.5 points; and a fourth offeror received the lowest technical score
of 108.4 The source selection evaluation panel (SSEP) determined that
all of the proposals were unacceptable with high risk ratings, but
felt that each could be made acceptable with additional information.
In evaluating proposals, the SSEP did not award any points for
proposed individuals who did not meet all of the required skill areas
for a particular labor category. On February 29, the agency issued
amendment No. 4, which changed the skill areas required for systems
analyst from "1, 2 or 3" to "1, 2 and 3," and for computer specialist
from "1, 2, 3, 5, or 8" to "1, 2, 3, 5, and 8." (Emphasis added.)
Offerors were requested to submit revised proposals. The SSEP
reconvened to evaluate the revised proposals responding to amendment
No. 4. The SSEP found the proposal of Van Dyke to be the technically
superior proposal and recommended that award be made to that firm.
However, the contracting officer rejected the SSEP's recommendation on
the basis that any one of the three remaining offerors could be made
capable of being awarded the contract if discussions were held.[1]
The agency conducted written discussions in which each offeror
received a list of clarifications and deficiencies concerning its
initial and revised proposal. The SSEP Chairman and the contract
specialist then conducted telephone discussions with each offeror.
ART's written discussion letter reflected the fact that various key
personnel it proposed were not qualified in all of the required skill
areas. During oral discussions, the RFP requirements regarding key
personnel requirements were addressed. The specific content of the
discussions with ART is the issue in this protest. ART's main
contention is that the SSEP Chairman expressly introduced a "team
concept" during oral discussions, specifically informing ART that it
was permitted to propose various individuals who each met some, but
not all, of the skill area requirements for a particular labor
category, and that together these individuals could constitute an
acceptable "team" for that particular labor category.
Best and final offers were subsequently requested and submitted. ART
fundamentally revised its BAFO based on its understanding of the oral
discussions. The final evaluated scores and proposed prices were as
follows:
Offerors Technical Score (350 points maximum)Price
ART 143.5 $17,551,097
FC Business Systems129.2 $9,976,940
Van Dyke 218 $13,069,300
Concluding from these results that Van Dyke's proposal represented the
best value to the government, the Army made award to Van Dyke. This
protest followed.
As discussed above, ART contends that the agency affirmatively misled
it during discussions, maintaining that it was informed during
discussions that it was permissible to utilize a "team approach" to
fulfill, in the aggregate, the experience requirements for each labor
category. ART contends that it was told that more than one individual
could be proposed for a particular labor category in order to meet
all of the skill area requirements for that labor category.
ART also argues that neither the solicitation nor the discussion
questions alerted it to the fact that the agency intended to give no
evaluation credit for personnel who were qualified in some, but not
all, of the required skill areas. In this regard, ART contends that
the agency conducted unequal discussions in that the agency informed
Van Dyke that individuals that did not meet all of the skill area
requirements would not receive any scoring credit.
At a hearing held in connection with this protest, ART's President
testified regarding the specific content of the oral discussions. He
stated that, during discussions, he communicated to the agency
representatives that ART had found it very difficult to find
individuals with the requisite experience in all of the required skill
and subskill areas required for many of the labor categories. Video
Transcript (VT) 14:56:44. ART's President testified that he then
asked the SSEP Chairman, "[i]s that what we are supposed to do?" VT
14:57:01. According to ART's President, the SSEP Chairman replied
that it would be impossible to find one individual who met all of the
skill area and subskill area requirements for a certain labor
category, and went on to explain that offerors were permitted to meet
the requirements of a particular labor category with a team.
Specifically, ART's President testified that he was advised that ART
could propose three individuals under the systems analyst labor
category, one person that met all of the requirements for skill area 1
(such as experience in 3 out of the last 5 years with UNIX operating
systems, and specific experience in Solaris 1.X and 2.X.), but had no
experience in skill areas 2 and 3, and another individual that met all
of the requirements for skill area 2 (such as experience in Sybase,
Progress and Oracle), but had no experience in skill areas 1 and 3,
and a third individual who had all of the experience required in skill
area 3 (which called for imagery exploitation software applications
and specific experience in DIEPS), but had no experience in skill
areas 1 and 2, and that these three individuals would form the
"systems analyst team." ART's President further testified that ART's
representatives ran through several scenarios to ensure that they
understood the teaming approach just introduced. VT 15:02:45.
Finally, ART's President testified that this team approach, as
explained by the SSEP Chairman, clarified everything for them because
this way the government would get all of the skill areas and subskill
areas in a particular labor category, although not with a single
person. Based on the discussions, ART restructured its BAFO to
reflect the permissible "team approach." Due to its revisions, 17 of
ART's proposed employees did not receive scoring credit.
The agency takes the position that the language in the solicitation,
combined with the clarification/deficiency comments, clearly put the
offerors on notice that the solicitation required that individuals
proposed for a labor category must have at least 3 years of experience
in the last 5 years in each of the skill areas listed for a particular
labor category, and that individuals who were proposed for a labor
category who did not have the requisite experience for each skill area
listed would not receive credit. Regarding the language of the
solicitation, the agency points to the language of amendment No. 1
which states: "[t]he individuals proposed must have the requisite
years of experience in each of the skill areas listed below for the
labor category for which they are proposed." (Emphasis added.) The
agency also points to amendment No. 4 which changed the word "or" to
"and" in the listing of skill areas for Systems Analyst and Computer
Specialist, as further evidence of the agency's consistent position
that individuals proposed for a given labor category must have at
least 3 years of experience in the last 5 years in each of the skill
areas listed for that labor category. The agency maintains that the
written clarification/deficiency questions provided to ART prior to
oral discussions, which were the basis for oral discussions,
specifically informed ART of deficiencies in skill areas 3 and 8. For
example, the agency notified ART of the following deficiency during
written discussions:
"8. Skill Area 8:
Deficiency - No individuals proposed for this skill area.
(Fowler cannot be counted for this skill area due to inadequate
recency of experience for skill area 5.)"
The agency views the written discussion questions as adequately
advising ART that each individual proposed must be qualified in all of
the listed skill areas in order to receive scoring credit. Therefore,
the agency contends the written clarifications/deficiency questions
addressed to ART reinforced what was already stated in the RFP in
amendment No. 1 requiring that "[t]he individuals proposed must have
the requisite years of experience in each of the skill areas listed
below for the labor category for which they are proposed."
Regarding oral discussions, the SSEP Chairman states: "[n]othing in
the oral discussion negated or amended the written guidance in section
L.21b(1) (amendment 0001) which stated that `[t]he individuals
proposed must have the requisite years of experience in each of the
skill areas listed below for the labor category for which they are
proposed.'" At the hearing, the SSEP Chairman testified:
"I do not know how the question of individual employees versus
team contributions arose, I do not recollect, but it became
necessary to restate that first an employee, in accordance with
L.21(b), had to first have the requisite years of experience in
each of the skill areas identified in the solicitation for their
labor category, that, when we proceeded to actually do the
evaluation as set out in M.3 the evaluation would then look at
the composite or the team of individuals who were contributing to
skill area 1." VT 11:01:05.[2]
The SSEP Chairman acknowledged that he introduced the concept of a
"team approach" during oral discussions and that this concept did not
appear in the RFP or in the written discussion materials. VT
11:01:29.[3]
Discussions, when they are conducted, must be meaningful and must not
prejudicially mislead offerors or be unequal. Federal Acquisition
Regulation, sec. 15.610(c); Nova Research Co., B-270092; B-270092.2, Feb.
8, 1996, 96-1 CPD para. 52 at 5. In this case, the record establishes
that the oral discussions were not misleading, and that the
protester's interpretation of the agency's remarks stemmed from its
own misunderstanding of the solicitation requirements. See Peckham
Vocational Indus., Inc., B-257100, Aug. 26, 1994, 94-2 CPD para. 81 at 8.
Regarding discussions, ART appears to have misapplied the "team
approach," as it was explained by the agency. The record indicates
that the "team approach" described by the SSEP Chairman during
discussions reflected the view that individuals from different labor
categories could form a team to fulfill the requirements of a
particular skill area, and that ART misunderstood this concept as
outlined above.[4]
On the basis of the record before us, it is clear that the "team
approach," as explained by the agency, is consistent with the terms of
the solicitation, specifically the solicitation provision that
personnel would only be evaluated by skill areas, not by labor
categories. Nowhere in the solicitation are labor categories
mentioned, except as a mechanism to "categorize" a proposed individual
at a specific labor rate. The record before us demonstrates that the
agency has been consistent throughout the evaluation process in its
interpretation of the experience requirements for labor categories.
For example, amendment No. 4 which changed the word "or" to "and" in
the listing of skill areas for certain labor categories, demonstrates
that the agency interpreted the solicitation to require that
individuals proposed for a given labor category must have experience
in each of the skill areas listed for a particular labor category.
ART's stated interpretation of the "team approach" is directly
contrary to the solicitation's requirements regarding experience for
each of the listed skill areas for given labor categories.
Moreover, ART has failed to demonstrate that it was prejudiced by the
alleged misleading discussions. Our Office will not sustain a protest
unless the protester demonstrates a reasonable possibility that it was
prejudiced by the agency's actions, that is, unless the protester
demonstrates that, but for the agency's actions, it would have had a
substantial chance of receiving the award. McDonald-Bradley,
B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at 3; see Statistica, Inc. v.
Christopher, No. 96-1148, slip op. __ (Fed. Cir. Dec. 19, 1996). At
the hearing ART's President specifically testified that ART could not
provide many of the personnel which met what it originally understood
to be the RFP's stated requirements. In its protest ART states that
when it submitted its BAFO it relied on the "team approach" concept
that was introduced by the agency during oral discussions by replacing
personnel originally proposed who were "very expensive" due to their
extensive experience, with several "significantly less expensive"
individuals whose combined experience met the requirements of the RFP.
In these circumstances, it is only reasonable to conclude
that, in order for ART to have provided the more highly skilled and
experienced personnel necessary to meet the actual RFP requirements,
ART's already high price, well above that offered by Van Dyke, would
have further increased.[5]
The protest is denied.
Comptroller General
of the United States
1. One proposal was determined to be unacceptable and excluded from
the competitive range after the evaluation of revised proposals,
leaving a competitive range of three offers.
2. In other words, under the teaming concept, as explained by the SSEP
Chairman at the hearing, the agency required that one individual
satisfy the skill area requirements for a particular labor category,
but that individual did not have to meet every subskill requirement
for each skill area. The agency would then examine all of the
individuals that were proposed for various labor categories that
required a particular skill area, for example skill area 2, which
required specific experience in Sybase, Progress, and Oracle. The
systems analyst, computer specialist, and systems administrator labor
administrator labor categories all require skill area 2. An offeror
could proposed a systems analyst with Sybase experience, a proposed
computer specialist with Oracle experience, and a systems
administrator with Progress experience. Then the agency would look
and see that, as a team, these individuals met all of the various
requirements of skill area 2.
3. The contracting specialist, who also participated in the
discussions with ART, could not recollect any of the technical
discussions between the SSEP Chairman and ART. VT 14:35:40.
4. At the hearing, ART also introduced testimony from a representative
of FC Business indicating that he, too, misunderstood the
solicitation's requirements.
5. ART also argues that the agency improperly failed to score a
certain employee who was proposed for the systems analyst labor
category. This allegation is factually incorrect. This individual
was scored under the skill areas 1, 2, and 3 to support his
designation as a systems analyst. However, the employee's score for
skill area 3 was downgraded because the agency determined that he
lacked the required three years of experience in DIEPS to satisfy the
DIEPS portion of the requirements for skill area 3. Even if this
individual had received the maximum score under skill area 3, there
would have been no material effect in the outcome of this procurement.
|
NEWSLETTER
|
|
Join the GlobalSecurity.org mailing list
|
|
|
