Matter of: Lexis-Nexis File: B-260023 Date: May 22, 1995 *REDACTED VERSION[*]

B-260023: May 22, 1995

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That agency's minimum needs would be better served by consolidated procurement for all legal research resources is dismissed where protester does not allege that it cannot supply the services requested nor show that it is economically affected by the specifications. Issue of consolidated procurement is a matter of agency policy choice which General Accounting Office will not review. Protest that solicitation evaluation provisions are vague is without merit where solicitation provides offerors sufficient detail to enable them to compete intelligently and on an equal basis. The protester maintains that there is no rational basis to separately procure CALR from lawbooks and/or CD-ROMs. Since the information content in almost all instances is duplicative.

Matter of: Lexis-Nexis File: B-260023 Date: May 22, 1995 *REDACTED VERSION[*]

Protest that solicitation for computer-assisted legal research resources fails to meet agency's minimum needs for all legal research resources, including lawbooks, which agency procures by separate solicitation, and that agency's minimum needs would be better served by consolidated procurement for all legal research resources is dismissed where protester does not allege that it cannot supply the services requested nor show that it is economically affected by the specifications; issue of consolidated procurement is a matter of agency policy choice which General Accounting Office will not review. Protest that solicitation evaluation provisions are vague is without merit where solicitation provides offerors sufficient detail to enable them to compete intelligently and on an equal basis. PROCUREMENT APPROACH Lexis-Nexis challenges the RFP's limitation to only one legal research media resource--CALR--as failing to meet the federal judiciary's minimum needs and restrictive of competition. According to the protester, the AO's actual minimum needs in this area include a mixture of all legal research media resources, i.e., lawbooks and CD-ROM, in addition to CALR. [4] Instead of separately procuring CALR and other legal research media resources, the protester argues, the AO should consolidate its legal research needs for all media, as well as its corresponding budgetary resources, into a single procurement with "many and varied multiple awards tailored to the individual needs of the user." In this regard, the protester maintains that there is no rational basis to separately procure CALR from lawbooks and/or CD-ROMs, since the information content in almost all instances is duplicative. The protester maintains that a consolidated procurement for all legal research and information media would increase competition and result in cost savings to the government. Under the Competition in Contracting Act of 1984 (CICA), we only consider protests filed by interested parties. See 31 U.S.C. Sec. 3553(a) (1988). An interested party is defined by CICA as "an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract." 31 U.S.C. Sec. 3551(2). This definition is reflected in our Bid Protest Regulations at 4 C.F.R. Sec. 21.0(a) (1995). Lexis-Nexis does not assert that it cannot compete to supply the CALR services here if they are procured on a separate basis; indeed, it has submitted a proposal. Nor has Lexis-Nexis explained--and it is not apparent from the record--how the firm is negatively affected economically by the AO's separate procurement approach for CALR. [5] Thus, while Lexis-Nexis may prefer that the agency use a consolidated procurement approach, we simply see no direct economic interest sufficient to qualify the firm as an interested party for purposes of challenging the agency's approach. See Marine Instrument Co., B-242166, Mar. 29, 1991, 91-1 CPD Para. 336; Mid-Atlantic Serv. & Supply Corp., B-218416, July 25, 1985, 85- 2 CPD Para. 86. In any event, the manner in which an agency seeks to satisfy its needs generally is a matter of agency policy choices that we do not review. Mid-Atlantic Serv. & Supply Corp., supra; see also, QualMed, Inc., B-254397.13; B-257184, July 20, 1994, 94-2 CPD Para. 33. Given the absence of evidence that the agency's approach here has the effect of restricting competition, Lexis-Nexis' protest that the government should procure all legal research media resources in a consolidated procurement concerns an agency policy choice that we would not consider. EVALUATION CRITERIA Lexis-Nexis argues that the solicitation's evaluation criteria for the additional/enhanced data bases, functions, and features are vague and fail to provide sufficient guidance for the preparation and evaluation of proposals at the superior color levels. Specifically, the protester believes the criteria should indicate how many and what combination of data bases, features, and functions must be offered to achieve green and blue ratings. Absent such specificity, Lexis-Nexis maintains, offerors cannot ascertain the point at which additional costs outweigh benefits to the government, resulting in an unacceptable amount of risk and uncertainty. As a general rule, contracting agencies must give offerors sufficient detail in a solicitation to enable them to compete intelligently and on a relatively equal basis. C3, Inc., B-241983.2, Mar. 13, 1991, 91-1 CPD Para. 279. It is also fundamental that offerors should be advised of the basis on which their proposals will be evaluated. Id. In particular, the Federal Acquisition Regulation (FAR), as applicable to this acquisition, [6] requires contracting agencies to set forth in the solicitation, at a minimum, all significant evaluation factors and significant subfactors and their relative importance. FAR Sec. 15.605(e); H.J. Group Ventures, Inc., B-246139, Feb. 19, 1992, 92-1 CPD Para. 203. We have reviewed the evaluation criteria in conjunction with the specifications and find them unobjectionable. The RFP clearly advises offerors of the factors and subfactors that will be considered in the evaluation. Specifically, relevant here, the data bases, functions, and features subfactor is identified as the most important technical subfactor, and the three items within that subfactor (data bases, functions, and features) are identified. Further, the RFP lists numerous minimum required data bases, functions, and features, as well as additional/enhanced data bases and features which offerors may provide and which the government is "interested in receiving." [7] Concerning these additional services, the RFP states that "[o]fferors . . . are encouraged to propose additional and/or enhanced services which exceed the requirements reflected in [the] solicitation." We think this information puts offerors on adequate notice of the agency's needs and what must be proposed to achieve a high evaluation rating. While the RFP does not specify numbers and combinations of data bases and features necessary for a green or blue rating, we do not think this level of detail is required. Rather, we believe the agency legitimately could require offerors to use their own inventiveness to develop their own best combinations to meet the agency's stated needs. This is particularly so since the agency states it is unfamiliar with all of the data bases and features available; providing for certain evaluation ratings for certain services could dissuade offerors from proposing what they believe is the optimal approach to meeting the agency's needs. While this may make it more difficult for offerors to weigh technical advantages against cost in preparing their proposals, such risk is inherent in procurements. Agencies are not required to abandon procurement approaches necessary to meet their needs solely to alleviate the risk to offerors. See generally C3, Inc., supra. The protester also contends that the criteria fail to provide for consideration of the quality of additional/enhanced data bases, features, and functions and, as a result, provide insufficient guidance to evaluators to enable them to ascertain actual best value. This argument is without merit. The RFP states that "the depth, quality, and breadth of coverage provided in the data bases offered and their relevance to the federal judiciary are significant." Thus, offerors are on notice that the agency will consider the quality of the proposed data bases. [8] It is the evaluators' function to apply their expertise in weighing the information provided; the manner in which they do this is not required to be detailed in the RFP beyond the level of description described above. Lexis-Nexis cites the detailed information in the agency's evaluation checklists as evidence that the agency in fact considers certain data bases and features preferable to others, and that it plans to award superior ratings based on these unannounced criteria. For example, the checklists specify [deleted]. [9] We do not agree that the checklists constitute undisclosed evaluation criteria. These checklists provide the evaluators with guidance as to how certain features and data base packages should be evaluated. As such, they constitute an evaluation methodology for the additional/enhanced data bases, functions, and features subfactor, not unstated evaluation factors. Agencies are not required to inform offerors of their specific rating methodology. See Chadwick-Helmuth Co., Inc., supra. Rather, in appropriate circumstances, agencies may establish evaluation standards to provide evaluators with guidelines as to the quality of proposals in certain evaluation areas. See, e.g., P.E. Sys., Inc., B-249033.2, Dec. 14, 1992, 92-2 CPD Para. 409 (undisclosed manning estimate can be used to evaluate proposed staffing levels). The fact that certain packages of features have been identified by the agency as desirable does not require that they be disclosed to offerors, for the reasons discussed above. In any case, the guidelines clearly constitute internal agency evaluation plans; the propriety of an evaluation turns not on these plans, but on whether the evaluation ultimately is carried out in accordance with the stated evaluation criteria. Telos Field Eng'g, B-253492.6, Dec. 15, 1994, 94-2 CPD Para. 240; Young Enters., Inc., B-256851.2, Aug. 11, 1994, 94-2 CPD Para. 159. Lexis-Nexis suggests that the guidelines contained in the checklists are inconsistent with the RFP descriptions of the evaluation subfactors and the specifications thereunder. We see no such inconsistency. Under the above example, for instance, the guidelines provide for a [deleted]. The RFP states nothing different; rather, as already discussed, the RFP is silent as to specific ratings such as this. The protest is dismissed in part and denied in part.

Attorneys

DECISION

Lexis-Nexis, a division of Reed Elsevier, Inc., protests request for proposals (RFP) No. USCA-94-R-009, issued by the Administrative Office of the United States Courts (AO) for on-line computer-assisted legal and information research services. [1] Lexis-Nexis argues that the RFP fails to satisfy the agency's minimum needs and that the solicitation's evaluation criteria are vague and insufficient for proposal preparation.

We dismiss the protest in part and deny it in part.

The solicitation is for the procurement of computer-assisted legal research (CALR) and support services for the federal judiciary. [2] The stated purpose of the solicitation is "to provide the judiciary the broadest possible selection of information, as described in [the] solicitation, available on-line at a reasonable price." To this end, the RFP requests offerors to submit fixed-price indefinite quantity proposals for 1 year and 4 option periods.

The RFP describes a best value evaluation scheme, with award to be made based on the best overall value to the government, price and other factors considered. The technical factor and subfactors were as follows (in descending order of importance):

"I. Technical and Corporate Capabilities 1. Data Bases, Functions, and Features [3] 2. User Support 3. Software Support 4. Corporate Capabilities a. Performance and Experience b. Key Personnel c. Quality Control."

Proposals are to be evaluated by color scoring, based on the offeror's ability to meet or exceed the government's requirements: red--does not meet the government's requirements; yellow--meets the government's requirements; green--"result[s] in some additional benefit/value to the government"; and blue--"enhanced performance and/or service level which will result in significant benefit/value to the government." Technical merit is more important than price, although price becomes more important as technical merit becomes more equal.

* The decision issued on May 22, 1995, contained proprietary information and was subject to a General Accounting Office protective order. This version of the decision has been redacted. Deletions are indicated by "[deleted]."

1. The AO is subject to the bid protest provisions of the Competition in Contract Act (CICA) because it falls within the definition of "federal agency" to which those provisions apply. See 31 U.S.C. Sec. 3551(1) and (3) (1988).

2. The AO currently contracts for CALR services under sole-source contracts with Lexis-Nexis and West Publishing Company.

3. At issue here is the data bases, function, and features subfactor, which the solicitation states will be evaluated on the basis of the descriptive specification paragraphs of the three data bases areas which offerors may submit proposals--legal research; newspaper and journals; and people and public record services--plus all subparagraphs thereunder, as follows:

C.5 Legal Research Services C.5.1. Legal Research Data Bases C.5.2 Private Judiciary Data Bases C.5.3 Citation Checking Functions C.5.4 Research and Retrieval Function C.5.5 Additional Capabilities C.5.5.1 Additional Data Bases C.5.5.2 Additional Cite Checking Functions C.5.5.3 Additional Search and Retrieval Functions

C.6 Newspaper and Journal Services C.6.1 Newspaper and Journal Data Bases C.6.2 Search and Retrieval Function C.6.3 Additional Capabilities C.6.3.1 Additional Data Bases C.6.3.2 Additional Function C.7 People and Public Record Services C.7.1 People and Public Record Data Bases C.7.2 Search and Retrieval Function C.7.3 Additional Capabilities C.7.3.1 Additional Data Bases C.7.3.2 Additional Functions

4. The protester's conclusions are based on a survey of federal judiciary personnel concerning CALR and lawbook use, which indicated that a majority of judges and law clerks use a combination of CALR and lawbooks in their research.

5. While the protester argues that "if all legal research media were consolidated in one procurement competitive market pressures on all vendors would increase . . . to the financial benefit of the AO," this does not establish Lexis-Nexis' own economic interest.

6. Although the AO, as an arm of the judicial branch, is not generally subject to the FAR, the Federal Information Resources Management Regulation (FIRMR) provides that "federal agencies not otherwise subject to FAR shall use the FAR in conjunction with the FIRMR when acquiring [federal information processing resources]," as here. 41 C.F.R. Sec. 201-3.102(b).

7. As examples of the requirements, under the legal research data bases area, the RFP specifies that offerors must provide at a minimum access to numerous listed resources including, for example, federal case law, state case law, and federal agency decisions. The listed resources are further detailed to include applicable requirements such as specific courts and agencies, years of coverage, and/or quantity. For the additional legal data bases, the RFP lists 12 "typical examples of additional data bases relevant to the federal judiciary's legal research needs" including, for example, federal agency decisions and items, such as opinions of the attorney general and legal dictionary, not specified under the minimum data bases.

8. Moreover, offerors are on notice that qualitative distinctions will be made among proposals where, as here, technical factors are part of the competitive evaluation. See Chadwick-Helmuth Co., Inc., 70 Comp.Gen. 88 (1990), 90-2 CPD Para. 400.

9. In another example, the checklists specify [deleted].