Matter of: Securiguard, Inc. File: B-249939 Date: December 21, 1992 REDACTED VERSION*

Matter of: Securiguard, Inc. File: B-249939 Date: December 21, 1992 REDACTED VERSION*

Agency did not conduct meaningful and equal discussions with the protester since the protester, the low priced offeror, was not advised during discussions of significant perceived weaknesses in its initial proposal while in contrast the awardee received discussion questions which encompassed the perceived weaknesses in its initial proposal.

Attorneys

DECISION

Securiguard, Inc. protests the award of a contract to MVM, Inc., under request for proposals (RFP) No. JBJMD-92-R-0014, issued by the Department of Justice (DOJ) for guard services at various DOJ facilities in Washington, D.C. The protester argues that the contracting officer failed to conduct meaningful discussions concerning perceived weaknesses in its initial proposal.

We sustain the protest.

The solicitation, issued on February 25, 1992, contemplated the award of a firm, fixed-price contract for a 1-year base period and four 1-year option periods. The solicitation required the submission of separate technical and price proposals and stated that the award would be made to the responsible offeror whose offer, conforming to the solicitation, would be most advantageous to the government, cost or price and other factors as specified in the solicitation considered.

The solicitation contained the following technical evaluation factors and the maximum weighted point values for each factor: (1) qualifications of personnel (400); (2) company management (400); and (3) past related experience and performance (200). Under the qualifications of personnel evaluation factor, offerors were required to detail the law enforcement training and experience qualifications for proposed security officers, supervisors, and contract managers, and to submit signed notices of intent to work from each proposed employee. Under the company management evaluation factor, offerors were required to submit a management plan demonstrating, among other things, an offeror' s understanding of the agency's requirements; an offeror's proposed method for implementing required security services, including the assignment of a sufficient number of supervisors and managers; an offeror's ability to maintain a superior level of supervisory control; and, an offeror's proposed method of contract monitoring, including the method by which the offeror would limit turnover in the security officer and supervisory workforce and the extent to which the offeror had been successful in this regard under prior contracts. Under the past related experience and performance evaluation factor, offerors were required to provide information concerning their previous performance of the same or similar types of contracts, biographical statements of company and contract managers and of supervisors, contract references, and a self-assessment of previous performance, including the annual turnover rate among personnel for each listed prior contract and the reasons for the turnover.

The solicitation stated that between substantially equal technical proposals, price would be the determining factor for award. The solicitation also stated that between acceptable proposals with a significant difference in technical merit, the importance or weight given to price would be substantially less than the importance or weight given to the technical factors in making the award determination.

Eight firms, including the protester and MVM, submitted initial technical and price proposals by the March 27 closing date. Three members of the four-member technical evaluation committee (TEC) individually scored each offeror's technical proposal for each technical evaluation factor. The individual evaluators' scores for each evaluation factor were averaged and then the average ratings were totaled to determine an overall technical consensus score for each offeror. The TEC members also listed the strengths and weaknesses of each offeror's technical proposal. The chairman of the TEC submitted a summary technical consensus report, which included the individual evaluators' rating reports and recommended technical discussion questions, to the contracting officer, who was responsible for evaluating price proposals and who served as the source selection authority.

The contracting officer included the proposals of five offerors, including the protester and MVM, in the competitive range. Out of a possible 1,000 points, the protester received an overall technical consensus score of 692 points and MVM received an overall technical consensus score of 865 points. The protester submitted the lowest price and MVM submitted the third lowest price.

The protester's initial technical proposal was characterized as overall "conditionally acceptable," i.e., "can be made fully acceptable by clarification, amplification, or modification of the proposal, if given the opportunity." The protester was rated good to superior with respect to the qualifications of personnel evaluation factor; satisfactory to good with respect to the company management evaluation factor; and weak to satisfactory with respect to the past related experience and performance evaluation factor. In the summary technical consensus report, the following specific weaknesses were noted in the protester's technical proposal: (1) the protester did not state whether a number of its proposed contract managers and supervisors met the law enforcement training and experience requirements as outlined in the solicitation; (2) the protester did not clearly describe how it would provide pre- employment training to proposed security officers who were currently working for the DOJ; (3) the protester did not clearly state whether the proposed contract manager was currently working for the firm or had signed a notice of intent to work; (4) a number of the protester's
proposed personnel had not completed some of the required application
forms; (5) the protester did not specify the proposed contract manager
and supervisors currently employed by the firm and some proposed
supervisors appeared to lack direct managerial and supervisory
experience; (6) the protester did not adequately address the
decisionmaking capabilities of the contract manager; (7) the protester
did not clearly state who would be available after normal duty hours to
make decisions if the contract manager were
unavailable; and (8) the protester did not adequately address, as part of
its management plan, its approach for reducing turnover (for which the
TEC noted the range of turnover for listed contracts previously performed
by the protester).
MVM's initial technical proposal was characterized as overall "acceptable
as submitted," i.e., "technically sufficient and in full compliance with
solicitation requirements." MVM was rated good to superior for each of
the technical evaluation factors. The following specific weaknesses were
noted in MVM's technical proposal: (1) MVM appeared to propose a number
of security officers who were currently serving overseas; (2) MVM
currently had only one experienced supervisor, referred to by name; and
(3) MVM proposed the incumbent contractor's contract manager as a
supervisor if MVM were awarded the contract.
By letters dated June 16, the contracting officer conducted written
discussions with the five offerors whose proposals were included in the
competitive range. The discussion questions focused on technical, not
price, matters. The contracting officer posed the following two
discussion questions to the protester:
"1. How. many (by name) of the prospective
Contract Managers and Supervisors are currently
working for the company? If they are not
working[,] how soon would they be available if
the contract is awarded?

"2. Are incumbent DOJ contract Security
Officers to be included in pre-award training?
If so[,] how do you plan to implement this type
of training while the Security Officers are
still working for the incumbent DOJ contractor?"

The contracting officer posed the following four discussion questions
to MVM:

"1. Please clarify the duties of the Assistant
Contract Manager. .

"2. Please clarify the duty status of [named
individuals]. [A]re they currently on board
with MVM? If so, how long and what capacity?

"3. If personnel proposed for the contract are
currently serving overseas, how quickly can
they be returned for contract duty, if
required[?]

"4. How will the company address the apparent
problem that can occur with the former
[contract manager] assigned as a supervisor,
working for a new [contract manager]?"

All offerors, including the protester and MVM, submitted BAFOs addressing
the written technical discussion questions by the June 30 closing date.
The TEC evaluated BAFOs and made no changes to any offeror's overall
technical consensus score.

In making the award determination, the contracting officer calculated a
final composite score for each offeror using a mathematical formula in
which an offeror's overall technical consensus score was weighted at 60
percent and an offeror's BAFO price was weighted at 40 percent. MVM, the
highest technically rated offeror, received the maximum weighted credit
for technical merit; the protester, the offeror which submitted the
lowest price, received the maximum weighted credit for price. The other
offerors received proportionately lower weighted technical and price
credit. The final composite scores show that MVM, which submitted the
third lowest
BAFO price, was ranked first overall for combined technical merit and
price, and the protester, which submitted what the contracting officer
characterized as an "artificially low" price, was ranked second overall
for combined technical merit and price. On August 3, the contracting
officer awarded a contract to MVM, a higher technically rated, higher
priced offeror. The record shows that the major reason the contracting
officer selected MVM for award was his concern that lower priced
offerors, like the protester, would experience greater personnel turnover
problems.

The protester contends that the contracting officer failed to conduct
meaningful discussions concerning perceived weaknesses in its initial
proposal and-- as a result, the protester was improperly denied the
opportunity to demonstrate that it was fully capable of satisfying the
agency's requirements. Accordingly, the protester argues that the
agency's evaluation of proposals was flawed and that the award to MVM, a
higher technically rated, 27 percent higher priced offeror, was
unreasonable.

In response, the agency states that it satisfied its obligation to
conduct meaningful discussions, arguing that it was not required to
discuss every element of the protester's conditionally acceptable
proposal that received less than the maximum possible score. The agency
maintains that the protester was not prejudiced by its failure to discuss
all perceived weaknesses in its proposal. As discussed below, we think
the discussions conducted by the agency were flawed and that the
protester was prejudiced by the agency's improper actions.

In negotiated procurements, contracting officers generally are required
to conduct discussions with all offerors whose proposals are within the
competitive range. 41 U.S.C. Sec. 253b(d) (2) (1988); Federal
Acquisition Regulation (FAR) Sec. 15.610. Although the discussions need
not be allencompassing, discussions are required to be meaningful; that
is, the agency is required to point out weaknesses, excesses, or
deficiencies in proposals unless doing so would result in technical
leveling. FAR Sec. 15.610(c),(d); Manekin Corp., B-249040, Oct. 19,
1992, 92-2 CPD Para. ___; Mikalix & Co., 70 Comp.Gen. 545 (1991), 91-1
CPD Para. 527. 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. See id.; Price Waterhouse, 65 Comp.Gen. 205 (1986), 86-1 CPD
Para. 54, aff'd, B-220049.2, Apr. 7, 1986, 86-1 CPD Para. 333.

Here, the record shows that the protester's initial technical proposal
was characterized as overall "conditionally acceptable," which by the
agency's own definition meant that the proposal "[could] be made fully
acceptable by clarification, amplification, or modification, . . . if
given the opportunity." Thus, this is not a case where the agency
evaluators believed the protester's initial technical proposal was
acceptable or did not raise concerns which required discussions. In
fact, as stated above, the evaluators listed eight perceived-weaknesses
in the protester's initial technical proposal. Despite the eight areas
of concern identified during the initial evaluation, the contracting
officer asked the protester only two technical discussion questions.
These questions focused on two of the perceived weaknesses in its initial
technical proposal, specifically, the current availability of its
proposed contract managers and supervisors and pre-employment training of
proposed incumbent security officers.

There was no discussion of the protester's perceived weaknesses involving
proposed employee compliance with the solicitation's law enforcement
training and experience requirements, proposed employee completion of all
required application forms, and proposed employee managerial,
supervisory, and decisionmaking experience and capabilities. There was
also no discussion of the protester's failure to clearly state the
individual who would be responsible for making decisions if the
protester's contract manager were unavailable after normal duty hours or
the inadequacy of the
protester's management approach for reducing turnover.

It is not clear from the record why the DOJ chose to ask questions about
two areas of weakness in the protester's initial technical proposal but
not to ask questions about any of the other six areas. One of the
weaknesses not discussed--the potential for turnover--ultimately became
the primary basis for the nonselection of the protester's proposal.

Specifically, the record shows that the evaluators and contracting
officer were particularly concerned that the successful offeror present a
specific management plan and price its proposal to minimize the problem
of turnover. The TEC found that the protester's management approach with
respect to plans and procedures for effectively reducing turnover was
general and lacked specific details. In making his award determination,
the contracting officer stated that the protester's price (which the
protester reduced by only a de minimis amount in its BAFO) for this firm,
fixed-price contract, considering salaries and benefits over the full
term of the contract, was "artificially low," and would cause personnel
turnover problems. Thus, while the issue of turnover clearly played a
major, if not determinative, role in the award decision, the contracting
officer did not ask the protester to provide more information concerning
its management approach for limiting turnover or, having knowledge of the
protester's low price, the impact of the protester's pricing scheme on
turnover. [1]

In contrast to how the protester was treated during discussions, the
record shows that the contracting officer asked MVM technical discussion
questions which specifically corresponded to all of the perceived
weaknesses in its "acceptable as submitted" initial technical proposal.
As stated above, three weaknesses were identified in MVM's initial
technical proposal, and all three weaknesses were encompassed in the
discussion questions asked of that firm. We find no explanation in the
record for why the contracting officer did not conduct the same detailed
discussions with the protester, a "conditionally acceptable" offeror, and
under these circumstances, we therefore conclude that the discussions
with the protester were neither meaningful nor equivalent to those
conducted with the awardee.

While the agency notes that after the evaluation of BAFOs no technical
consensus score was increased, we think it is clear that the selection of
MVM was based, in part, on its satisfactory responses to the discussion
questions which resolved the remaining weaknesses in its proposal. It is
also clear from the record that the contracting officer's failure to
identify in discussions weaknesses involving the protester's proposed
personnel and its management plan, especially concerning the turnover
issue, deprived the protester, whose price was low, of an opportunity to
be selected for award since the issues which were important to the
selection decision were never identified in discussions. Simply stated,
offerors cannot be expected to improve the technical merit of their
proposals when they do not know which areas in their proposals need to be
clarified and addressed in greater detail. We thus find the lack of
meaningful discussions was prejudicial. [2] See SeaSpace, 70 Comp.Gen.
268 (1991), 91-1 CPD Para. 179; E.H. Pechan & Assocs., Inc., B-221058,
Mar. 20, 1986, 86-1 CPD Para. 278.

We sustain the protest. By letter of today, we are recommending that the
agency reopen discussions with all firms, including the protester, whose
proposals are considered to be in the competitive range, conduct
appropriate discussions with those offerors, and evaluate revised
proposals in accordance with the solicitation's evaluation criteria. If
MVM is no longer considered the most advantageous offeror, the agency
should terminate MVM's contract for the convenience of the government and
award the contract to the most advantageous offeror. We also find that
the protester is entitled to recover the costs it incurred in filing and
pursuing the protest. Bid Protest Regulations, 4 C.F.R. Sec. 21.6(d) (1)
(1992).

The protest is sustained.

*The decision, issued on December 21, 1992, contained proprietary information and was subject to the terms of a General Accounting Office protective order. The decision was released to the parties admitted to the protective order. The parties have agreed that the decision should be released in its entirety; the decision is now removed from the coverage of the protective order.

1. Turnover also was a consideration under the past related experience and performance evaluation factor in which offerors were required to give a self-assessment of previous performance, including the annual turnover rate among personnel for each listed contract and the reasons for the turnover. We agree with the agency that pure historical turnover, based on an offeror's previous experience, cannot be improved as a result of discussions. See, e.g., Veco/ Western Alaska Constr., B-243978, Sept. 9, 1991, 91-2 CPD Para. 228. However, since the protester's range of historical turnover was referenced in the summary technical consensus report in the section listing perceived weaknesses in the protester's initial proposal, we believe that any questions the TEC had regarding the reasons for turnover on particular contracts previously performed by the protester could have appropriately been the subject of discussions. We note that in its protest, the protester has provided information which suggests that depending on how the range of historical turnover is calculated, there may not be any significant difference between the protester's and MVM's ranges of historical turnover.

2. In making the final award selection, the contracting officer relied on a mathematical formula in which an offeror's overall technical consensus score was weighted at 60 percent and an offeror's BAFO price was weighted at 40 percent. Given the protester's low price, if meaningful discussions had been conducted and the protester would have increased its overall technical consensus score by less than 20 points, its final composite score for technical merit and price would have been higher than MVM's composite score for technical merit and price and the protester would have been ranked first overall.

3. It appears from the record that discussions with some of the other competitive range offerors also were not meaningful. The contracting officer failed to conduct specific discussions, advising them of perceived weaknesses in their initial technical and price proposals.