B-182290, DEC 20, 1974

B-182290: Dec 20, 1974

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DISTRICT OF COLUMBIA'S REJECTION OF PROPOSAL TO FURNISH HOMEMAKER SERVICES AS "NONRESPONSIVE" WITHOUT HOLDING DISCUSSIONS WITH OFFEROR WAS PROPER. NOTWITHSTANDING FACT THAT NORMALLY PROPOSALS ARE NOT REJECTED AS NONRESPONSIVE AS ARE BIDS IN FORMALLY ADVERTISED PROCUREMENTS. RECORD SHOWS THAT SOLICITATION WAS NOT AMBIGUOUS AND THAT SCORING SCHEME INVOLVING AWARD OF ZERO POINTS FOR FAILURE TO ACHIEVE STATED REQUIREMENTS WAS NOT IRRATIONAL OR UNREASONABLE. 2. IS MATTER WITHIN DISCRETION OF CONTRACTING AGENCY AND MAY PROPERLY BE USED TO MEASURE ACCEPTABILITY OF PROPOSAL EVEN THOUGH THEY BEAR ON OFFEROR RESPONSIBILITY. PROTEST ON THIS ISSUE IS UNTIMELY SINCE ALLEGEDLY IMPROPER EVALUATION FACTORS MUST BE PROTESTED PRIOR TO RECEIPT OF PROPOSALS. 4 C.F.R. 20.2(A).

B-182290, DEC 20, 1974

1. DISTRICT OF COLUMBIA'S REJECTION OF PROPOSAL TO FURNISH HOMEMAKER SERVICES AS "NONRESPONSIVE" WITHOUT HOLDING DISCUSSIONS WITH OFFEROR WAS PROPER, NOTWITHSTANDING FACT THAT NORMALLY PROPOSALS ARE NOT REJECTED AS NONRESPONSIVE AS ARE BIDS IN FORMALLY ADVERTISED PROCUREMENTS, SINCE DISTRICT, IN EFFECT, FOUND PROPOSAL TO BE OUTSIDE OF COMPETITIVE RANGE, AND DISTRICT REGULATION REQUIRES THAT DISCUSSIONS BE HELD ONLY WITH RESPONSIBLE OFFERORS IN COMPETITIVE RANGE. FURTHERMORE, RECORD SHOWS THAT SOLICITATION WAS NOT AMBIGUOUS AND THAT SCORING SCHEME INVOLVING AWARD OF ZERO POINTS FOR FAILURE TO ACHIEVE STATED REQUIREMENTS WAS NOT IRRATIONAL OR UNREASONABLE. 2. USE OF EVALUATION FACTORS IN SOLICITATION WHICH SET FORTH BOTH EDUCATIONAL AND EXPERIENCE QUALIFICATIONS FOR PROFESSIONAL STAFF, BUT WHICH DID NOT PERMIT BROAD EXPERIENCE TO SUBSTITUTE FOR LACK OF EDUCATIONAL REQUIREMENTS, IS MATTER WITHIN DISCRETION OF CONTRACTING AGENCY AND MAY PROPERLY BE USED TO MEASURE ACCEPTABILITY OF PROPOSAL EVEN THOUGH THEY BEAR ON OFFEROR RESPONSIBILITY. HOWEVER, PROTEST ON THIS ISSUE IS UNTIMELY SINCE ALLEGEDLY IMPROPER EVALUATION FACTORS MUST BE PROTESTED PRIOR TO RECEIPT OF PROPOSALS. 4 C.F.R. 20.2(A).

HOME AND FAMILY SERVICES, INC.:

THIS CASE CONCERNS THE DISTRICT OF COLUMBIA'S REJECTION, AS NONRESPONSIVE, OF A PROPOSAL SUBMITTED BY HOME & FAMILY SERVICES, INC. (HOME), TO PROVIDE HOMEMAKER SERVICES TO DISTRICT RESIDENTS FOR A ONE YEAR PERIOD.

REQUEST FOR PROPOSALS (RFP) 305-M WAS ISSUED TO FIVE PROSPECTIVE CONTRACTORS, INCLUDING THE INCUMBENT HOME, IN JUNE 1974. OF THE FIVE RESPONSES RECEIVED, IT IS REPORTED THAT "TWO WERE FOUND TO BE RESPONSIVE TO THE SPECIFICATIONS AS ADVERTISED." BY LETTER OF AUGUST 20, 1974, HOME WAS NOTIFIED THAT "A TENTATIVE SELECTION OF ANOTHER CONTRACTOR HAS BEEN MADE WHO SCORED HIGHER POINTS." SUBSEQUENTLY, ON SEPTEMBER 19, 1974, HOME MET WITH OFFICIALS OF THE DISTRICT'S DEPARTMENT OF HUMAN RESOURCES WHO CONFIRMED THAT HOME'S PROPOSAL HAS BEEN REGARDED AS "NOT FULLY RESPONSIVE." THIS PROTEST FOLLOWED.

THE PROTESTER ALLEGES THAT THE DISTRICT FAILED TO COMPLY WITH THE LAWS AND REGULATIONS APPLICABLE TO NEGOTIATED PROCUREMENTS BECAUSE IT REJECTED PROPOSALS AS NONRESPONSIVE AND BECAUSE IT DID NOT CONDUCT NEGOTIATIONS WITH THE PROTESTER. HOME FURTHER ALLEGES THAT THE PROPOSAL EVALUATION REVEALED AN AMBIGUITY IN THE SOLICITATION WHICH WORKED TO HOME'S PREJUDICE. IN ADDITION, HOME CHALLENGES THE EVALUATION, BOTH BECAUSE "COMPANY EXPERIENCE AND EXPERIENCE OF KEY PERSONNEL" WERE "IGNORED" AND BECAUSE OF THE SCORING SCHEME UTILIZED. THE PROTESTER ALSO SUGGESTS THAT THE PROFESSIONAL STAFF EXPERIENCE REQUIREMENTS OF THE RFP WERE PROPERLY MATTERS BEARING ON OFFERORS' RESPONSIBILITY AND SHOULD NOT HAVE BEEN CONSIDERED FACTORS FOR DETERMINING THE ACCEPTABILITY OF PROPOSALS.

THE RECORD INDICATES THAT THERE MAY WELL BE SOME CONFUSION ON THE PART OF THE DISTRICT'S DEPARTMENT OF HUMAN RESOURCES OVER THE PROPER TERMINOLOGY APPLICABLE TO NEGOTIATED PROCUREMENTS. THE PROTESTER IS CORRECT WHEN IT STATES THAT NORMALLY IN NEGOTIATED PROCUREMENTS PROPOSALS ARE NOT REJECTED FOR NONRESPONSIVENESS, AS ARE BIDS IN FORMALLY ADVERTISED PROCUREMENTS. RATHER, PROPOSALS ARE INITIALLY EVALUATED AND, EXCEPT IN CIRCUMSTANCES PERMITTING AWARD ON THE BASIS OF INITIAL EVALUATION, DISCUSSIONS ARE HELD WITH THOSE OFFERORS WHO SUBMITTED PROPOSALS IN A COMPETITIVE RANGE. SECTION 2641.11 B1, DISTRICT OF COLUMBIA MATERIAL MANAGEMENT MANUAL. PROPOSAL REJECTION OCCURS WHEN IT IS DETERMINED THAT A PROPOSAL IS NOT WITHIN THE COMPETITIVE RANGE OR WHEN, AFTER DISCUSSIONS ARE HELD WITH ALL OFFERORS IN THE COMPETITIVE RANGE AND BEST AND FINAL OFFERS ARE SUBMITTED AND EVALUATED, THE PROPOSAL IS NOT SELECTED FOR AWARD.

NOTWITHSTANDING THE ADMINISTRATIVE LANGUAGE CHARACTERIZING THE PROPOSALS AS RESPONSIVE AND NONRESPONSIVE AND DESPITE THE DISTRICT'S "TENTATIVE SELECTION," SUBJECT TO NEGOTIATIONS, OF THE TWO "RESPONSIVE" OFFERORS FOR AWARD, IT APPEARS THAT THE DISTRICT DID, IN EFFECT, ESTABLISH A COMPETITIVE RANGE AND REJECTED THOSE PROPOSALS NOT WITHIN THAT RANGE. HOME'S PROPOSAL, AS EVALUATED, CLEARLY WAS NOT WITHIN THAT RANGE. THEREFORE, THE DISTRICT'S FAILURE TO CONDUCT NEGOTIATIONS WITH HOME WAS NOT IMPROPER SINCE THE APPLICABLE REGULATION REQUIRES ONLY THAT DISCUSSIONS BE HELD WITH RESPONSIBLE OFFERORS IN THE COMPETITIVE RANGE. SEE, E.G., 49 COMP. GEN. 309 (1969).

THE ALLEGED SOLICITATION AMBIGUITY CONCERNS THE FOLLOWING LANGUAGE IN SECTION IV OF THE RFP:

"B. QUALIFICATIONS OF PROFESSIONAL STAFF

"1. PROFESSIONAL STAFF RESPONSIBLE FOR SUPERVISION AND TRAINING OF HOMEMAKERS AND *** CASE ASSESSMENT SHALL INCLUDE PERSONS WITH:

"A. A CURRENT LICENSE TO PRACTICE AS A REGISTERED PROFESSIONAL NURSE, PLUS ONE YEAR OF RELATED EXPERIENCE, OR

"B. A BACHELOR'S DEGREE IN SOCIAL WORK, HOME ECONOMICS OR CLOSELY RELATED FIELD, PLUS ONE YEAR OF RELATED EXPERIENCE.

"3. *** THE CONTRACTOR'S PROFESSIONAL STAFF SHALL INCLUDE AT LEAST ONE PERSON WHO MEETS THE REQUIREMENTS IN 1-A ABOVE, AND AT LEAST ONE WHO MEETS THE REQUIREMENTS IN 1-B ABOVE."

THE PROTESTER ALLEGES THAT THE GOVERNMENT INTERPRETED THE PARAGRAPH AS LIMITING PROFESSIONAL STAFF PERSONNEL TO REGISTERED NURSES AND THOSE WITH THE REQUISITE BACHELOR'S DEGREE, BUT THAT THE PROTESTER PROPERLY READ THIS PARAGRAPH "AS MEANING THAT ITS STAFF WOULD HAVE TO INCLUDE AT LEAST ONE PERSON WITH EACH OF THE LISTED QUALIFICATIONS, BUT THAT THE PROPOSERS' PROFESSIONAL STAFF COULD ALSO INCLUDE OTHER QUALIFIED PERSONS." THE PROTESTER'S PROPOSAL IDENTIFIED AS ITS PROFESSIONAL STAFF AN UNNAMED REGISTERED NURSE AND UNNAMED SOCIAL WORKER, BOTH TO BE HIRED LATER, AND THREE OFFICERS OF THE COMPANY. THESE OFFICERS HAD VARYING DEGREES OF EXPERIENCE IN FURNISHING HOMEMAKER SERVICES, BUT DID NOT HAVE THE QUALIFICATIONS SET FORTH IN SECTION IV OF THE RFP. PROTESTER'S PROPOSAL WAS REGARDED AS NOT PROVIDING THE REQUIRED PROFESSIONAL STAFF AND IT THEREFORE WAS RATED ZERO IN THE AREA OF PROFESSIONAL STAFF, AND IN OTHER RELATED AREAS DEPENDENT UPON AN ADEQUATE STAFF.

WE DO NOT AGREE THAT THE DISTRICT INTERPRETED THE RFP AS THE PROTESTER SUGGESTS. THE RFP ITSELF INDICATED THAT THE PROFESSIONAL STAFF WAS NOT LIMITED TO REGISTERED NURSES OR TO THOSE WITH BACHELOR DEGREES. PARAGRAPH B-2 OF SECTION IV PROVIDED:

"2. WHEN THE PERSON RESPONSIBLE FOR SUPERVISION, TRAINING, OR CASE ASSESSMENT MEETS THE EDUCATION BUT NOT THE EXPERIENCE REQUIREMENT, OR WHEN THE PERSON MEETS THE EXPERIENCE BUT NOT THE EDUCATION REQUIREMENT, HE/SHE MUST REPORT DIRECTLY TO A PERSON WITH HIGHER EDUCATIONAL QUALIFICATIONS (E.G. MASTERS DEGREE IN SOCIAL WORK, NURSING, HOME ECONOMICS, OR CLOSELY RELATED FIELD)."

THUS, THE SOLICITATION PROVIDED THAT MEMBERS OF THE PROFESSIONAL STAFF MUST EITHER POSSESS THE REQUISITE QUALIFICATIONS OR ELSE REPORT DIRECTLY TO SOMEONE WITH THE SPECIFIED HIGHER EDUCATIONAL QUALIFICATIONS. THE NARRATIVE EVALUATION OF PROTESTER'S PROPOSAL INDICATES THAT THE PROTESTER'S PROFESSIONAL STAFF WAS RATED ZERO BECAUSE ITS ADMINISTRATIVE ORGANIZATION CHART SHOWED ALL STAFF MEMBERS REPORTING DIRECTLY TO THE COMPANY PRESIDENT, WHO DID NOT HAVE THOSE HIGHER EDUCATIONAL QUALIFICATIONS. IT APPEARS THAT THE DISTRICT CONSIDERED AS PART OF THE PROTESTER'S PROFESSIONAL STAFF THE TWO UNNAMED INDIVIDUALS BUT NOT THE OTHER PROPOSED STAFF MEMBERS BECAUSE THESE LATTER INDIVIDUALS DID NOT HAVE THE REQUIRED QUALIFICATIONS AND WOULD NOT BE REPORTING TO SOMEONE WHO DID. ACCORDINGLY, WE BELIEVE THAT HOME'S LOW RATING WAS DUE TO THE MAKEUP AND ORGANIZATION OF ITS STAFF, RATHER THAN TO A DIFFERENT INTERPRETATION BY THE DISTRICT OF AN RFP PROVISION.

WITH RESPECT TO THE EVALUATION OF PROPOSALS, SECTION IV OF THE RFP SET FORTH A "WEIGHTED VALUE RATING SYSTEM" AND LISTED SEVEN EVALUATION AREAS WITH THE RANGE OF POINTS (0-10, 0-15, OR 0-20) THAT COULD BE ATTAINED IN EACH. THE RFP STATED THAT PROPOSALS NOT MEETING "THE MINIMUM QUALIFICATIONS" FOR SIX OF THE AREAS (THE OMITTED AREA WAS COST) "WILL NOT BE CONSIDERED," AND FURTHER STATED THAT THE SPECIFICATIONS OF SECTION IV AND V OF THE RFP IDENTIFIED THE "MINIMUM REQUIREMENTS FOR POINT AWARD." THE ADMINISTRATIVE REPORT INDICATES THAT PROPOSALS WERE EVALUATED IN THE FOLLOWING MANNER:

1. ONE-FOURTH OF THE MAXIMUM VALUE FOR AN EVALUATION AREA WAS DEDUCTED WHENEVER THE PROPOSAL "WAS VAGUE AND LED TO A CONFUSING INTERPRETATION."

2. ONE-HALF OF THE MAXIMUM VALUE WAS DEDUCTED "WHENEVER THE FULL INTENTION OF THE EVALUATION FACTOR COULD NOT BE DETERMINED."

3.THE TOTAL VALUE WAS DEDUCTED "WHENEVER IT WAS CLEARLY EVIDENCED THAT THE EVALUATION FACTOR COULD NOT BE ACHIEVED."

UNDER THIS EVALUATION METHOD, THE PROTESTER RECEIVED THE MAXIMUM POSSIBLE POINTS IN ONE CATEGORY, BUT RECEIVED NO POINTS IN THE OTHER FIVE CATEGORIES. THE PROTESTER CLAIMS THAT THIS "WAS NOT POINT DISTRIBUTION ACROSS THE RANGE CONTEMPLATED BY THE RFP AND, FOR THAT MATTER, BY ANY RATIONAL EVALUATION SYSTEM." WE CANNOT AGREE. THE SCORING SYSTEM UTILIZED, WHILE SOMEWHAT UNUSUAL IN THAT IT WOULD TEND NOT TO REFLECT SMALL BUT NOTICEABLE DIFFERENCES AMONG PROPOSALS, IS NOT AN UNREASONABLE METHOD OF IMPLEMENTING THE EVALUATION SCHEME SET FORTH IN THE RFP. THUS, WE THINK THAT A ZERO RATING IS CONSISTENT WITH THE RFP'S WARNING THAT SPECIFIED MINIMUM REQUIREMENTS HAD TO BE MET IN ORDER FOR A PROPOSAL TO RECEIVE CONSIDERATION. THESE MINIMUM REQUIREMENTS, IN ADDITION TO THE QUALIFICATIONS AND ORGANIZATION OF THE PROFESSIONAL STAFF, INCLUDED A 1 TO 15 RATIO OF PROFESSIONAL STAFF MEMBER TO HOMEMAKER, 40 HOURS OF FORMAL HOMEMAKER TRAINING AND ADDITIONAL ONGOING TRAINING, AND VARIOUS ASPECTS OF CASE ASSESSMENT AND HOMEMAKER RECRUITMENT, STAFFING, AND SUPERVISION. THE PROTESTER'S ZERO RATINGS RESULTED IN LARGE PART BECAUSE OF THE INADEQUACY OF ITS PROPOSED PROFESSIONAL STAFF TO COMPLY WITH THESE REQUIREMENTS. SEE NOTHING IRRATIONAL OR UNREASONABLE ABOUT THIS SCORING.

THE PROTESTER ALSO DECRIES THE EVALUATION BECAUSE "THE GOVERNMENT IN ITS EVALUATION CRITERIA COMPLETELY IGNORED COMPANY EXPERIENCE AND EXPERIENCE OF KEY PERSONNEL." AS INDICATED ABOVE, PARAGRAPH B OF SECTION IV OF THE SOLICITATION SET FORTH CERTAIN EDUCATIONAL AND EXPERIENCE REQUIREMENTS FOR PROFESSIONAL STAFF MEMBERS, AND FURTHER PROVIDED THAT PERSONNEL WITHOUT THE EDUCATION SPECIFIED MUST REPORT TO SOMEONE WITH HIGHER EDUCATIONAL QUALIFICATIONS. PURSUANT TO THESE PROVISIONS, EXPERIENCE ALONE, REGARDLESS OF HOW EXTENSIVE, COULD NOT BE REGARDED AS A SUBSTITUTE FOR COMPLIANCE WITH THE STATED REQUIREMENTS. WE DO NOT AGREE THAT THE CRITERIA ARE THEREBY "EVEN MORE IRRATIONAL THAN THEY OTHERWISE" WOULD BE. THE SELECTION OF EVALUATION FACTORS IS PROPERLY WITHIN THE SOUND DISCRETION OF THE PROCURING ACTIVITY. 47 COMP. GEN. 252 (1967). FURTHERMORE, ALTHOUGH HOME ALSO SUGGESTS THAT THE EVALUATION FACTORS REGARDING PROFESSIONAL STAFF SHOULD HAVE BEEN TREATED AS BEARING ON OFFEROR RESPONSIBILITY RATHER THAN PROPOSAL ACCEPTABILITY, WE HAVE RECOGNIZED THAT IN NEGOTIATED PROCUREMENTS MATTERS ORDINARILY GOING TO QUESTIONS OF RESPONSIBILITY PROPERLY MAY BE REGARDED AS AREAS OF COMPLIANCE WITH THE GOVERNMENT'S STATED REQUIREMENTS. 53 COMP. GEN. 388 (1973). IN ANY EVENT, HOME'S OBJECTIONS TO THE EVALUATION CRITERIA SHOULD HAVE BEEN RAISED PRIOR TO THE DATE SET FOR RECEIPT OF PROPOSALS, AND ITS FAILURE TO DO SO RENDERS THIS PORTION OF THE PROTEST UNTIMELY. 4 C.F.R. 20.2(A); 52 COMP. GEN. 500 (1973F 52 ID. 905 (1973); 53 ID. 676, 693 (1974).

FINALLY, THE PROTESTER CLAIMS THAT IT HAS BEEN PREJUDICED BY THE DISTRICT'S FAILURE TO COMPLY WITH ITS OWN REGULATIONS. THIS FAILURE INVOLVED A DETERMINATION TO AWARD CONTRACTS BY THE CONTRACTING OFFICER RATHER THAN BY THE DISTRICT'S MATERIAL MANAGEMENT OFFICER OR HIS DEPUTY, AND THE TAKING OF MORE THAN 20 DAYS BY THE DISTRICT TO FURNISH US A REPORT ON THE PROTEST. THESE ARE PROCEDURAL MATTERS WHICH, IN VIEW OF OUR CONCLUSIONS HEREIN, CANNOT BE REGARDED AS HAVING PREJUDICED THE PROTESTER.

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED. HOWEVER, WE ARE CALLING THE ATTENTION OF THE COMMISSIONER OF THE DISTRICT OF COLUMBIA TO THE CONTRACTING AGENCY'S FAILURE TO DISTINGUISH BETWEEN FORMALLY ADVERTISED AND NEGOTIATED PROCUREMENTS.