B-311263; B-311263.2, HydroGeoLogic, Inc., May 27, 2008
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release.
1. In a procurement for architecture-engineer (A-E) services, protest challenging the agency’s decision not to select the protester as the highest-ranked firm with which to negotiate is denied where the record shows that the agency reasonably relied on key discriminators to select the highest-ranked firm.
2. In a procurement for A-E services, protest that the agency conducted inadequate discussions by failing to properly advise the protester on weaknesses in its submission is denied where the questions posed by the agency concerned the offeror’s concepts and methods, consistent with the Federal Acquisition Regulation (FAR) provisions applicable to A-E procurements; FAR provision regarding content of discussions in negotiated procurements does not apply to A-E procurements.
HydroGeoLogic, Inc. (HGL) protests the failure of the Environmental Protection Agency (EPA) to select it as the highest-ranked firm, with whom the EPA would then negotiate an architect-engineer (A-E) contract for professional services to support remedial planning and oversight activities in EPA’s Region 9. HGL alleges that the agency’s evaluation of its submission under certain factors was unreasonable; the agency failed to conduct adequate discussions and unreasonably evaluated the firm’s submission based on the discussions that it did hold; and the most highly-ranked firm was ineligible for award because information contained in its submission indicated that it is incapable of complying with the subcontracting limitation.
This procurement of A-E services is being conducted
pursuant to the procedures set forth in the Brooks Act, 40 U.S.C. sections 1101, 1104
(2002), and its implementing regulations, Federal Acquisition Regulation (FAR)
subpart 36.6. In accordance with those
Firms were advised that their qualifications would be evaluated under six factors, listed in descending order of importance, two of which had subfactors:
· Factor 1: Specialized Experience and Technical Competence
· Sub-Factor 1: Fund-Lead Site Specific Work Areas
· Sub-Factor 2: Enforcement Support Site Specific Work Areas
· Sub-Factor 3: Other Technical Assistance Site Specific Work Areas
· Factor 2: Past Performance
· Factor 3: Knowledge of, and Experience with, Environmental Regulations
· Factor 4: Professional Qualifications
· Sub-Factor 1: Management Personnel
· Sub-Factor 2: Technical Personnel
· Factor 5: Location in the General Geographical Area and Ability to Maintain Appropriate Office and Staff Presence in Region IX
· Factor 6: Capacity to Accomplish the Work in the Required Time
Solicitation at 3-6. Thirty-two work areas--the tasks that would need to be accomplished to complete the statement of work--were listed under the three subfactors in factor 1.
Firms were advised that “[a]t least fifty (50) percent of
the cost of contract performance incurred for personnel shall be expended for
employees of the prime contractor.”
Eight firms, including HGL and Innovative Technical
Solutions, Inc. (
At the conclusion of its second review, which included a
consideration of the oral presentations, the AEEB rated the three firms--in
order of rank,
Each of these firms received an overall rating of
“excellent.” After a review of the
AEEB’s evaluation, the SSO ranked the firms as follows:
By letter dated
HGL challenges the AEEB’s decision on numerous grounds. In reviewing an agency’s selection of a
contractor for A-E services, our function is not to make our own determination
of the relative merits of the submissions, or to substitute our judgment for
that of the procuring agency by conducting an independent examination. Foundation Eng’g Sci., Inc.,
Evaluation under Factor 6--Capacity
As noted above, HGL and
Under factor 6, the agency required offerors to demonstrate their “ability/capacity to staff the contract with experienced trained personnel at the appropriate levels and disciplines in an effective and timely manner. The offeror[s] will be evaluated on current and projected workload commitments.” Solicitation at 6.
The protester’s submission stated as follows:
Assuming an estimated maximum resource requirement of 55 full-time equivalents (FTEs), the over [DELETED] staff from within Region 9 Team offices represents [DELETED] times the amount of the estimated maximum requirement. Currently, the Team has [DELETED]
FTE’s in excess capacity to perform all expected services and accommodate peak workloads in excess of [DELETED] FTEs at any one time. . . . Based on current contracted workload, our key personnel and technical staff will have approximately 50% availability in six months and up to 80% availability within 12 months.
Protester’s SF 330 at 41 (emphasis added).
In its pre-oral presentation evaluation, the AEEB assigned a notable weakness to the protester’s submission under factor 6, stating that the “Offeror did not clearly explain [how] it would adapt to increasing capacity of this contract. The Offeror stated that they would be operating at 50% capacity in 6 months and 80% capacity in 12 months.” AR, Tab 6, AEEB Report, at 6.
As noted above, offerors were
provided at the oral presentations with a list of questions to which they
should respond. The last of HGL’s
questions stated: “The proposal includes
an estimate that key staff will have 50% availability in 6 months and 80%
availability at the end of the year.
Please describe the personnel and companies included in this estimate.”
The protester argues that the agency unreasonably took one sentence in its submission out of context, when the submission, read as a whole, repeatedly asserted that HGL would be prepared to fulfill the contract requirements at the inception of contract performance. We disagree.
An offeror has the
responsibility to submit a well-written proposal, with adequately detailed
information, which clearly demonstrates compliance with the solicitation requirements
and allows a meaningful review by the procuring agency,
In our view, based on the
reference in HGL’s submission to “50% availability in six months and up to 80%
availability within 12 months” of its “key personnel and technical staff,” it
was not unreasonable for the agency to seek confirmation from HGL regarding the
availability of the personnel proposed for the contract. To that end, four of the 15 oral presentation
questions presented to HGL by the agency concerned staffing, including the last
question, quoted above, which was specifically directed at obtaining
clarification of the statement in the protester’s SF 330 regarding staffing
availability. The record shows, however, that the protester
failed to persuade the agency that it would have the key individuals with which
it intended to staff the contract ready at the inception of performance, and
that it was prepared to deal with the staffing contingencies that might
arise. Because HGL did not provide the
confirmation the agency was seeking,
it was reasonable for the agency to characterize this area as a notable
weakness and ultimately rely on it as the primary discriminator between the two
strong submissions from HGL and
While the primary discriminator in the ranking
determination was the personnel staffing issue discussed above, the record
shows that the agency also considered the fact that HGL’s oral presentation was
considered weaker than the other two offerors’ presentations. AR, Tab 12, Ranking Determination, at 30. The specific weaknesses are memorialized in a
contemporaneous written summary of the evaluation of the oral presentations,
where the AEEB noted, for example, that HGL did not present “an in-depth
understanding of the Superfund that was [commensurate] with the written
proposal.” AR, Tab 11, AEEB Final Report,
at 3. While HGL vigorously disputes the
agency’s evaluation, the agency’s contemporaneous evaluation record contains a
detailed summary of why the agency considered HGL’s oral presentation, though
sound, inferior to
On a related point, the protester argues that the oral
presentations did not satisfy the requirement for meaningful discussions in the
FAR. The Brooks Act and its implementing
regulations in FAR subpart 36.6 provide that agencies “shall conduct
discussions with at least 3 firms to consider anticipated concepts and compare
alternative methods for furnishing the services.” 40 U.S.C. sect. 1103(c) (2002); FAR sect. 36.602-3(c). The
protester asserts that the agency’s meetings with the offerors did not
constitute adequate discussions under the Brooks Act because the agency’s
“failure to discuss any potential weaknesses. . . negates any meaningfulness of
any discussions.” Comments,
The questions that the agency
posed to HGL more than adequately probed “concepts and the relative utility of
alternative methods of furnishing the required services,” as provided in FAR sect.
36.602-3(c). Specifically, questions 7
through 13 asked for examples of innovative approaches, methods for
implementing certain processes, and examples of projects where certain
processes were successfully used. Each
of those seven questions, nearly half of the 15 questions asked, dealt with the
relative merits of various methods of delivering services. In our view, this is precisely the kind of
discussion that is contemplated under FAR sect. 36.602-3(c). See
Evaluation under Factor 1: Fund-Lead Projects
The protester challenges the agency’s evaluation of its submission under factor 1, the most important factor, which identified as a significant weakness the fact that HGL “provided some ‘Fund-lead’ example projects which were not ‘Fund-lead’, but rather DOD/PRP lead. This did not demonstrate a clear or complete understanding of what a Fund-lead project is including the associated level of work. This may result in more agency oversight.” AR, Tab 12, Ranking Determination, at 17. The protester asserts that the agency’s assessment of a notable weakness on this basis was unreasonable, and that the protester’s submission instead should have been rated “outstanding,” the highest rating available.
The protester agues that, besides the funding source
distinction between Fund-lead and non-Fund-lead projects, which the protester
argues is inconsequential, the various types of projects are functionally
equivalent because they are governed by the same statutes and “[a]ny work that
the DoD would undertake pursuant to Superfund using its appropriated funds
would be the equivalent of an EPA Fund-lead action.” Comments,
Even assuming the regulatory framework is the same for Fund-lead and non-Fund-lead projects, as the protester argues, it does not necessarily follow that the methods by which different agencies oversee such projects are the same, and we cannot find unreasonable the agency’s assertion that the protester’s apparent failure to appreciate this distinction might require additional agency supervision during contract performance. In our view, the agency reasonably assessed the protester’s submission a notable weakness when it concluded in its evaluation that the protester may have misunderstood that distinction and may have failed to appreciate the administrative ramifications of which agency had contracted for the remediation services.
Further, even assuming the agency unreasonably assessed
the protester’s submission a notable weakness under factor 1, we see no
resulting prejudice to the protester. Our
Office will not sustain a protest absent a showing of competitive prejudice,
that is, unless the protester demonstrates that, but for the agency’s actions,
it would have a substantial chance of being the highest-ranked firm. McDonald-Bradley, B-270126,
Adequacy of the Evaluation Documentation
The protester asserts that the agency failed to sufficiently document its evaluation, because the agency did not comment on the strength of each SF 330 at the level of the 32 work areas in factor 1, nor did the evaluators engage in a point-by-point comparison of the SF 330s, tallying up each of the instances where the offerors’ SF 330s claimed to show experience relevant to the 32 work areas.
It is clear from the final evaluation conducted by the
agency, which included an assessment of each submission under each evaluation
factor, including the subfactors under factors 1 and 4, that the SSO was aware
of the strengths and weaknesses of each offeror’s SF 330. A selection official’s judgment must be
documented in sufficient detail to show it is not arbitrary, but a failure to
discuss the SF 330s in the detail that the protester argues is necessary does
not affect the validity of the decision where, as here, the record shows that
the agency’s ranking was reasonable. See
Carmon Constr., Inc., B-292387.3,
The protester makes several allegations that, under certain
factors, its SF 330 was better than
In its original protest, HGL argued that
The protester subsequently renewed this protest ground,
arguing that the information contained in
The protest is denied.
Gary L. Kepplinger
The protester raised several issues in its comments on the supplemental agency
report, including, for example, a challenge to the agency’s assessment of a
notable weakness under factor 5.
Comments on Supplement AR,
Other related questions included:
“6. If you are awarded
See, in particular, questions four (“Considering that you have other
 The protester states that it reached the last question with only 2 minutes remaining in the time allotted to respond to questions during its oral presentation, and unlike with other questions, the agency did not ask follow-up questions or for additional clarifications. The ground rules of the oral presentation were clear, and the fact that HGL apparently had only a short time left in which to respond to the question at issue provides no basis to question the agency’s evaluation of its submission in this area.
 As the agency uses the terms, Fund-lead projects are those projects funded by the EPA. The term “Fund” is a shorthand reference to “Superfund.” The term “DOD/PRP” refers to the Department of Defense (DOD) or a “potential responsible party” (PRP).
 The protester argues for the first time in its May 1 comments that the agency disparately treated offerors in its evaluation under factor 1. This protest ground is based on information contained in the agency report that was produced more than 10 days prior to those comments, and it is therefore untimely. See 4 C.F.R. sect. 21.2(a)(2).
 The solicitation defines a “poor” submission as one which addresses the factor, “but contains deficiencies and/or weaknesses.” AR, Tab 5, Evaluation Factors, at 5.
 In the evaluation of HGL’s submission under factor 2, for example, the agency cited no notable weaknesses in the protester’s submission but nevertheless rated the submission “excellent” rather than “outstanding.”
To arrive at its position that, on its face,