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B-212962, APR 25, 1984

B-212962 Apr 25, 1984
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AGENCY'S USE OF AVAILABILITY OR COMMITMENT OF LISTED PERSONNEL AS A SUBCRITERION IN EVALUATING PROPOSALS IS NOT IMPROPER. 2. PROTEST THAT AGENCY TECHNICAL EVALUATION WAS DEFECTIVE IS DENIED WHERE PROTESTER HAS NOT SHOWN EVALUATION TO BE ARBITRARY. EXPERIENCE AND CAPABILITIES OF PERSONNEL AND CONSULTANTS THAT WERE TO BE UTILIZED IN PERFORMING THE CONTRACT. THE ARMY IMPROPERLY CONSIDERED THE DEGREE TO WHICH THE PERSONNEL LISTED IN THE PROPOSAL HAD A BUSINESS RELATIONSHIP WITH DEUEL AND THAT THIS EVALUATION FACTOR WAS NOT DISCLOSED IN THE RFP. DEUEL CONTENDS THAT SUCH A SCORE CANNOT BE RECONCILED WITH THE ACTUAL QUALIFICATIONS OF ITS PERSONNEL AND FURTHER SUPPORTS DEUEL'S CONTENTION THAT AVAILABILITY BECAME A PRIME CRITERION WHICH SHOULD HAVE BEEN DISCLOSED.

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B-212962, APR 25, 1984

DIGEST: 1. WHERE RFP REQUIRES OFFERORS TO FURNISH QUALIFICATIONS AND EXPERIENCE OF PERSONNEL TO BE UTILIZED IN PERFORMING CONTRACT, BUT DOES NOT SPECIFICALLY REQUIRE THAT EVIDENCE OF THE AVAILABILITY OR COMMITMENT OF PERSONNEL LISTED BE PROVIDED, AGENCY'S USE OF AVAILABILITY OR COMMITMENT OF LISTED PERSONNEL AS A SUBCRITERION IN EVALUATING PROPOSALS IS NOT IMPROPER. 2. PROTEST THAT AGENCY TECHNICAL EVALUATION WAS DEFECTIVE IS DENIED WHERE PROTESTER HAS NOT SHOWN EVALUATION TO BE ARBITRARY.

DEUEL AND ASSOCIATES, INC.:

DEUEL AND ASSOCIATES, INC. (DEUEL), PROTESTS THE AWARD OF TWO INDEFINITE DELIVERY-TYPE CONTRACTS TO CHAMBERS CONSULTANTS AND PLANNERS (CCP) AND THE OFFICE OF CONTRACT ARCHAEOLOGY (OCA), UNIVERSITY OF NEW MEXICO, UNDER REQUEST FOR PROPOSALS (RFP) NO. DACW47-83-R-0025 ISSUED BY THE DEPARTMENT OF THE ARMY (ARMY) FOR ARCHEOLOGICAL-CULTURAL SERVICES.

PARAGRAPH 1(A) OF SECTION "M," EVALUATION FACTORS FOR AWARD, REQUIRED OFFERORS TO LIST THE PROFESSIONAL QUALIFICATIONS, EXPERIENCE AND CAPABILITIES OF PERSONNEL AND CONSULTANTS THAT WERE TO BE UTILIZED IN PERFORMING THE CONTRACT. DEUEL CONTENDS THAT UNDER THIS EVALUATION FACTOR, THE ARMY IMPROPERLY CONSIDERED THE DEGREE TO WHICH THE PERSONNEL LISTED IN THE PROPOSAL HAD A BUSINESS RELATIONSHIP WITH DEUEL AND THAT THIS EVALUATION FACTOR WAS NOT DISCLOSED IN THE RFP. IN ADDITION, DEUEL POINTS OUT THAT THE CHAIRMAN OF THE TECHNICAL SELECTION COMMITTEE AWARDED DEUEL 0 POINTS OUT OF A POSSIBLE 20 IN EVALUATING THE QUALIFICATIONS OF DEUEL'S PROPOSED PROJECT DIRECTOR AND ALL OTHER TEAM MEMBERS. DEUEL CONTENDS THAT SUCH A SCORE CANNOT BE RECONCILED WITH THE ACTUAL QUALIFICATIONS OF ITS PERSONNEL AND FURTHER SUPPORTS DEUEL'S CONTENTION THAT AVAILABILITY BECAME A PRIME CRITERION WHICH SHOULD HAVE BEEN DISCLOSED.

WE DENY THE PROTEST.

THE RFP LISTED FIVE MAJOR EVALUATION FACTORS:

"A. PROFESSIONAL QUALIFICATIONS, EXPERIENCE, AND CAPABILITIES OF PERSONNEL AND CONSULTANTS WHO WILL BE ASSIGNED TO THIS PROJECT.

"B. PHYSICAL AND TECHNICAL RESOURCES, PRIOR EXPERIENCE AND CAPABILITIES OF THE FIRM AND SUBCONTRACTORS TO ACCOMPLISH CONTEMPLATED WORK WITHIN TIME REQUIRED.

"C. TECHNICAL QUALITY OF RESEARCH STRATEGY FOR UNDATED LITHIC SITES.

"D. PRICE.

"E. LOCATION OF FIRM WITH RESPECT TO LOCATION RELATIVE TO ALBUQUERQUE, NEW MEXICO."

A PROPOSAL COULD RECEIVE A MAXIMUM OF 25 POINTS FOR EACH OF THE FIRST THREE FACTORS, PRICE WAS ASSIGNED 20 POINTS AND THE LOCATION OF THE FIRM WAS WORTH 5 POINTS.

A TECHNICAL SELECTION COMMITTEE WAS CONVENED TO EVALUATE PROPOSALS. THE SCORES OF THE TOP THREE FIRMS WERE AS FOLLOWS:

TECHNICAL PRICE TOTAL

CCP 68.5 20 88.5

OCA 69.5 6 75.5

DEUEL 61.5 13 74.5 THE RFP INDICATED THAT CONTRACTS WERE TO BE AWARDED TO THE TWO PROPOSALS ACCRUING THE HIGHEST NUMBER OF POINTS AND AWARD WAS MADE TO CCP AND OCA.

FOR EVALUATION PURPOSES, THE MAJOR CRITERIA WERE SUBDIVIDED. UNDER PROFESSIONAL QUALIFICATIONS, THE SUBCRITERIA UTILIZED AND THE POINTS ASSIGNED TO EACH WERE AS FOLLOWS:

1. PERSONNEL QUALIFICATIONS (25 POSSIBLE)

(A) PRINCIPLE INVESTIGATOR (5)

(B) PROJECT DIRECTOR (5)

(C) ALL OTHERS (15) THE CONTRACTING OFFICER ACKNOWLEDGES THAT IN EVALUATING PROPOSALS IN THIS AREA, THE CHAIRMAN OF THE TECHNICAL SELECTION COMMITTEE INSTRUCTED COMMITTEE MEMBERS TO PLACE GREAT EMPHASIS ON THE LEVEL OR KIND OF AFFILIATION BETWEEN PERSONNEL NAMED IN THE PROPOSAL AND OFFERORS. THE ARMY CONTENDS THAT ALTHOUGH THE DEGREE OF ACTUAL AVAILABILITY OR COMMITMENT TO THE OFFEROR WAS NOT SPECIFICALLY LISTED AS AN EVALUATION FACTOR, AVAILABILITY IS A SUBFACTOR WHICH IS REASONABLY RELATED TO THE CAPABILITY OF THE FIRM TO ACCOMPLISH THE REQUIRED WORK WITHIN THE ESTABLISHED TIMEFRAME AND, AS A RESULT, NEED NOT BE DISCLOSED. IN ADDITION, THE ARMY ARGUES THAT PARAGRAPH 3 OF SECTION "C," WHICH STATES THAT SUFFICIENT TECHNICAL, SUPERVISORY AND ADMINISTRATIVE PERSONNEL MUST BE PROVIDED TO ENSURE TIMELY PERFORMANCE, PLACES OFFERORS ON NOTICE THAT THE AVAILABILITY OF PERSONNEL WOULD BE CONSIDERED.

THE ARMY ALSO CONTENDS THAT THE SCORING OF DEUEL'S PROPOSAL WAS CONSISTENT WITH THIS EVALUATION SCHEME. THE NARRATIVES INDICATE THAT COMMITTEE MEMBERS WERE CONCERNED WITH THE AVAILABILITY OF THE PERSONNEL LISTED BY DEUEL AND THAT THE SCORING OF DEUEL'S PROPOSAL REFLECTS THIS CONCERN. THE ARMY ARGUES THAT DEUEL WAS NOT PENALIZED DURING THE SCORING PROCESS. HOWEVER, OFFERORS THAT, IN THE COMMITTEE'S VIEW, HAD ACCESS TO A POOL OF REGULARLY UTILIZED PERSONNEL WERE SEEN AS HAVING A FAR GREATER CAPABILITY OF EFFECTIVELY PROVIDING SERVICES TO THE ARMY AND WERE SCORED ACCORDINGLY.

OUR REVIEW OF AN AGENCY'S TECHNICAL EVALUATION IS LIMITED TO CONSIDERING WHETHER THE EVALUATION WAS FAIR AND REASONABLE AND CONSISTENT WITH THE EVALUATION CRITERIA. HOLMES AND NARVER, INC., B-206138, JANUARY 11, 1983, 83-1 CPD 27. IN ADDITION, WE GENERALLY WILL NOT OBJECT TO THE USE OF EVALUATION FACTORS NOT SPECIFICALLY STATED IN THE RFP WHERE THEY ARE REASONABLY RELATED TO THE SPECIFIED CRITERIA. DIVERSIFIED DATA CORPORATION, B-204949, AUGUST 18, 1982, 82-2 CPD 146. OUR CONCERN IN CONSIDERING WHETHER SUCH A REASONABLE RELATIONSHIP EXISTS IS WHETHER THE CORRELATION WAS SUFFICIENT TO PUT OFFERORS ON NOTICE OF THE ADDITIONAL CRITERIA TO BE APPLIED. INTERACTIVE SCIENCES CORPORATION, B-192807, FEBRUARY 23, 1979, 79-1 CPD 128.

ALTHOUGH THE LEVEL OF AVAILABILITY OR COMMITMENT OF THE PERSONNEL WAS NOT SPECIFICALLY INCLUDED AS AN EVALUATION FACTOR, WE SEE NOTHING IMPROPER IN THE ARMY'S CONSIDERATION OF AVAILABILITY AS A SUBCRITERIA. THE ARMY CLEARLY INDICATED THAT THE QUALIFICATIONS, EXPERIENCE AND CAPABILITIES OF THE INDIVIDUALS WHO WOULD BE ASSIGNED TO THE PROJECT WOULD BE EVALUATED. THE PROTESTER ITSELF ACKNOWLEDGES THAT GIVEN THE INDEFINITE DELIVERY TYPE CONTRACT INVOLVED AND THE NATURE OF THE WORK, IT WAS NOT FEASIBLE TO EXPECT THE OFFEROR TO PROVIDE PERSONNEL COMMITMENTS. AS DEUEL INDICATES, THE ARMY COULD NOT EXPECT OFFERORS TO PROVIDE PERSONNEL COMMITMENTS "WITH NO ASSURANCE THAT THERE WOULD BE ANY WORK FOR THE PERSONNEL EVEN IF THE CONTRACT WAS AWARDED." THEREFORE, WE THINK THE ARMY'S CONSIDERATION OF THE AFFILIATION BETWEEN THE PERSONNEL NAMED IN THE PROPOSAL AND THE OFFEROR AND OF THE AVAILABILITY OF THE LISTED PERSONNEL TO THE OFFEROR IS ENCOMPASSED BY THE STATED CRITERIA AND COULD PROPERLY BE CONSIDERED BY THE TECHNICAL EVALUATION COMMITTEE IN SCORING THE PROPOSALS.

OUR REVIEW OF THE RECORD INDICATES THAT THE ARMY'S TECHNICAL EVALUATION WAS CONSISTENT WITH THE STATED EVALUATION CRITERIA. OVERALL, DEUEL'S PROPOSAL RECEIVED A SUPERIOR RATING FROM THE TECHNICAL STANDPOINT BUT WAS RATED LOWER THAN THE TWO AWARDEE FIRMS. ALTHOUGH DEUEL ARGUES THAT THE SCORING PROCESS WAS DEFECTIVE, THE RECORD INDICATES THAT THE SCORING MERELY REFLECTED DIFFERENCES IN THE NUMBER OF PERMANENT EMPLOYEES ASSOCIATED WITH EACH FIRM AND THE POOL OF PAST EMPLOYEES THAT HAD A REGULAR RELATIONSHIP WITH THE FIRM AND WOULD, THEREFORE, BE MORE ABLE TO RESPOND IN A TIMELY MANNER. WHILE WE RECOGNIZE THAT THE CHAIRMAN OF THE EVALUATION COMMITTEE GAVE DEUEL A VERY LOW RATING IN CERTAIN AREAS, THE CHAIRMAN CONSISTENTLY SCORED PROPOSALS LOWER COMPARED TO OTHER TEAM MEMBERS. THE FACT THAT DEUEL DISAGREES WITH THE SCORING OF ITS PROPOSAL DOES NOT ESTABLISH THAT THE EVALUATION HAD NO REASONABLE BASIS. DIVERSIFIED DATA CORPORATION, B-204969, AUGUST 18, 1982, 82-2 CPD 146. BASED ON THE RECORD, WE CANNOT FIND THAT THE ARMY EVALUATION LACKED A REASONABLE BASIS. ACCORDINGLY, THE PROTEST IS DENIED.

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