DSDJ, Inc., B-288438; B-288438.2; B-288438.3; B-288438.4, October 24, 2001
B-288438,B-288438.2,B-288438.4,B-288438.3: Oct 24, 2001
DIGEST Exclusion of proposal from competitive range was reasonable where agency reasonably determined that. DSDJ asserts that the evaluation of its proposal was inconsistent with the evaluation scheme set forth in the RFP and was otherwise unreasonable. Or other task orders were to be issued for: (1) management and professional services. Award was to be made to the offerors whose proposals were most advantageous and represented the best value to the government. The solicitation provided that proposals were to be evaluated based on the following factors: (1) past performance. Mission capability and proposal risk were equally important. The three combined were significantly more important than price.
DSDJ, Inc., B-288438; B-288438.2; B-288438.3; B-288438.4, October 24, 2001
DSDJ, Inc. protests the Department of the Air Force's exclusion of its proposal from the competitive range under request for proposals (RFP) No. F44650-01-R0001, for contracted advisory and assistance services (CAAS) in support of the Air Combat Command (ACC) and the Air Force Command and Control Training and Innovation Group (AFC2TIG). DSDJ asserts that the evaluation of its proposal was inconsistent with the evaluation scheme set forth in the RFP and was otherwise unreasonable.
We deny the protest.
As set forth in the solicitation's statement of work (SOW), ACC and AFC2TIG require CAAS (as well as ongoing operational services) to support or improve organizational policy development, decision making capabilities, program and/or project management and administration, technical and analytical tools, and the operation of systems supporting the ACC mission of furnishing air combat forces. RFP Description of Services Sec. 1.2. The RFP provided for award of six indefinite-delivery, indefinite-quantity contracts (three contracts to be awarded on an unrestricted basis and three contracts to be awarded to small business concerns), for a base year, with 4 option years, to meet this requirement. (In preproposal questions and answers, the agency stated that it planned to award six to eight contracts, with half the awards reserved for small business concerns.) Under these CAAS contracts, fixed-price, cost-plus-fixed-fee, labor-hour, or other task orders were to be issued for: (1) management and professional services, including support, assistance, advice or training; (2) studies, analyses, and evaluations; and (3) engineering and technical services, including advice, assistance, and training required to maintain and operate ACC fielded weapon systems, equipment and components at design or required levels of effectiveness.
Award was to be made to the offerors whose proposals were most advantageous and represented the best value to the government. The solicitation provided that proposals were to be evaluated based on the following factors: (1) past performance, evaluated using five references for the most recent and relevant contract efforts (with relevance defined as management and professional support services; studies, analyses and evaluations; and engineering and technical support service experiences, especially those provided to the military at multiple locations); (2) mission capability, with subfactors for management, technical, and proposals for three sample task orders (STO); (3) proposal risk, focusing on the risks and weaknesses associated with the offeror's proposed approach, and assigned at the subfactor level; and (4) price, including reasonableness and realism. Past performance, mission capability and proposal risk were equally important, and the three combined were significantly more important than price.
The Air Force excluded DSDJ's proposal from the competitive range based upon its finding that the proposal was unacceptable due to major deficiencies and inadequacies throughout the proposal such that a major rewrite would be required to render the proposal capable of being accepted. Specifically, although DSDJ received a very good/significant confidence past performance rating, its proposal was rated as unacceptable/high risk under the management and technical subfactors, and as unacceptable/high risk under two of the three STOs and marginal/high risk under the third. Among the deficiencies and inadequacies identified by the agency were the following: (1) although DSDJ's proposal identified education, experience and expertise that might be applied to the contract, it did not include a technical approach or plan for performing the CAAS SOW; (2) DSDJ's proposal indicated that [DELETED]; (3) DSDJ generally failed to establish its ability to furnish qualified staff to meet task order needs; (4) DSDJ's proposal failed to include a technical plan for accomplishing the STOs; (5) DSDJ proposed staff to perform the STOs who were marginally qualified (STO 1) or unqualified (STO 2), and who lacked the requisite security clearance; and (6) DSDJ's proposal failed to address key requirements under STO 3--for assistance to AFC2TIG in training theater and space battle staff in performing their wartime command and control duties of using and administering computer applications in the command and control of aerospace, maritime and ground combat resources--and demonstrated a lack of understanding of AFC2TIG's mission. Upon learning of the exclusion of its proposal from the competitive range, and after receiving a debriefing from the agency, DSDJ filed this protest with our Office.
As an initial matter, DSDJ asserts that the solicitation included inadequate information concerning the agency's requirements--including a failure to set forth the experience and education needed by staff selected to perform the STOs, a failure to specify the level of detail required for requested work breakdown statements, and a failure to include an adequate description of AFC2TIG--and that, when the agency was questioned by offerors seeking clarification and additional information, the response was inadequate. Further, DSDJ asserts that the agency initially led offerors to believe that there would not be an STO based upon the AFC2TIG requirements, but then in fact included such an STO (STO 3). This was significant, according to the protester, because STO 3 "was unrepresentative of historical CAAS requirements and was so unique and complex that no offeror other than the incumbent could adequately address it in a proposal." Protest at 27. DSDJ also maintains that other STOs were similarly unduly restrictive of competition, and concludes that the solicitation made no provision for ofsetting the competitive advantage enjoyed by the incumbents. DSDJ Comments, Oct. 8, 2001, at 2.
Under our Bid Protest Regulations, protests such as this, which are based upon alleged improprieties in a solicitation which are apparent prior to the time set for receipt of initial proposals, must be filed prior to that time. 4 C.F.R. Sec. 21.2(a)(1) (2001). he primary purpose of this timeliness rule is to afford parties a fair opportunity to raise objections to the terms of a solicitation without unduly disrupting or delaying the procurement. Atlantic Coast Contracting, Inc., B-259082.3, July 17, 1995, 95-2 CPD Para. 21 at 4. Because DSDJ did not raise these alleged solicitation deficiencies prior to the closing time, this aspect of its protest is untimely.
DSDJ asserts that we should consider this aspect of its protest under the "significant issue" exception to our timeliness requirements. 4 C.F.R. Sec. 21.2(c). However, we will invoke this exception only where the matter raised is of widespread interest to the procurement community and has not been considered on the merits in a previous decision. Oceaneering Int'l, Inc., B-287325, June 5, 2001, 2001 CPD Para. 95 at 6. The protest issues here--whether the solicitation furnished adequate information to afford offerors a fair and reasonable opportunity to compete and whether it was unduly restrictive of competition--are not issues of first impression and, in any case, there is no reason to believe they would be of widespread interest to the procurement community. See, e.g., ACH Food Cos., Inc., B-286794, Feb. 12, 2001, 2001 CPD Para. 47 at 4; Baxter Healthcare Corp., B-259811.4, Sept. 28, 1995, 95-2 CPD Para. 151 at 6. We therefore decline to consider these untimely allegations.
DSDJ asserts that the evaluation was inconsistent with the stated evaluation criteria and was otherwise unreasonable.
The competitive range generally consists of the most highly rated proposals, based on evaluation of the information submitted in each proposal against the stated evaluation criteria. United Hous. Servs., Inc., B-281352.14, May 7, 1999, 99-1 CPD Para. 80 at 3. In this regard, an offeror must submit an initial proposal that is adequately written and that affirmatively states its merits, or run the risk of having its proposal rejected as technically unacceptable. Agencies may exclude proposals with significant informational deficiencies from further consideration, whether the deficiencies are attributable to omitted or merely inadequate information addressing fundamental factors. Generally, proposals that are technically unacceptable as submitted and would require major revisions to become acceptable are not required to be included in the competitive range for discussion purposes. Essex Electro Eng'rs, Inc., B-284149, B-284149.2, Feb. 28, 2000, 2000 CPD Para. 72 at 6. In reviewing protests of competitive range determinations, we will not reevaluate proposals; rather, we will review the record to ensure that the evaluation and competitive range determination were reasonable and consistent with the terms of the solicitation. NCLN20, Inc., B-287692, July 25, 2001, 2001 CPD Para. 136 at 2.
As noted above, the Air Force downgraded DSDJ's proposal under the technical capability and STO subfactors of the mission capability factor based in part on DSDJ's failure to set forth a technical approach to or plan for performing the CAAS SOW and task orders and accomplishing the STOs. We find this determination reasonable.
The RFP required that STO proposals "[c]learly explain the technical solution for performing the task order"; "include[e] resumes for the key personnel (defined as those technical personnel actually performing the work of the task order)"; and "[e]xplain your proposed program management and systems engineering procedures for task order performance." RFP Sec. L, Preparation of Proposals, Preparation of Task Order Proposals. Further, under the STO subfactor of the mission capability evaluation factor, the RFP provided for evaluation of "the offeror's technical approach including innovative procedures/processes which offer benefit to the government," and of whether the proposal demonstrates "[a] complete and logical approach towards task accomplishment, including sufficient detail to show where the offeror's efforts would be concentrated in task accomplishment." RFP Sec. M, Evaluation Criteria, Mission Capability, STO Subfactor.
STO 1 required that the contractor help determine quantitative civil engineering requirements for assigned and planned systems and support equipment identified in mission needs statements and operational requirements documents; analyze current mission capabilities, core mission area requirements, and the impact of future civil engineering systems on mission capabilities; continually interface with a wide range of users, developers, industry, major command staffs, Air Staff, and other agencies to ensure modernization planning efforts are aligned with the overall direction of the Agile Combat Support Mission Area Plan; be knowledgeable on the full range of program requirements surrounding Combat Air Forces civil engineering; and provide technical and analytical analyses of long-term projects, as well as reacting on short notice to critical, time-sensitive issues that are within the scope of this task order. RFP STO 1 at 1-2. The STO indicated that the contractor should establish an efficient management structure, review ACC and Department of Defense (DOD) organization requirements documentation, conduct investment strategy planning, and track and analyze trends. Id.
Although DSDJ generally indicated in its proposal that it would establish an efficient management structure for its team, review ACC and DOD regulations and documentation, conduct investment strategy planning, and track and analyze trends, it furnished little detail as to its approach in performing the task order beyond a restatement of the STO requirements. Instead, DSDJ stated in its proposal that "our technical approach would be to assign a [DELETED]." DSDJ Proposal, Vol. 3, STO 1, at 1. The Air Force reasonably determined that this response was noncompliant with the solicitation requirement for a complete and logical approach to task accomplishment.
STO 2 required that the contractor revise, coordinate, ensure publication of, and distribute ACC combat crew communication procedures and policies; support ACC combat crew communication and provide inputs to headquarters communication assessments and tests; support ACC combat crew communication at conferences and the ACC Strategic Nuclear Action Group meetings; and support ACC on the Nuclear Surety Staff Assistance Visit and ACC Command and Control Review teams, and ensure compliance, and make recommendations on issues discovered during team visits. DSDJ conceded in its proposal that "[w]e would like to have a detailed understanding of this task, but the fact is this is a very unique requirement and this task does not appear to be a previous CAAS tasking." DSDJ Proposal, Vol. 3, STO 2, at 1. Rather than describe a complete and logical approach to task accomplishment, DSDJ's discussion then went on to focus on the firm's corporate experience and on the staff proposed to perform the STO. In this regard, according to DSDJ, "[o]ur Technical approach is to provide ACC [DELETED]." Id. at 3. The Air Force reasonably determined that this discussion did not satisfy the solicitation requirement for a complete and logical approach towards task accomplishment. The agency also reasonably concluded, we find, that DSDJ's proposal of [DELETED], id. at 1--was a significant shortcoming which, in conjunction with the lack of a technical plan, represented a significant risk to successful performance. /1/
STO 3 required that the contractor assist AFC2TIG in training theater and space battle staff in performing their wartime command and control duties of using and administering computer applications in the command and control of aerospace, maritime and ground combat resources. Essentially, DSDJ's proposed approach was to [DELETED]. As DSDJ conceded in its proposal, "[o]ur approach does not demonstrate the typical nuts and bolts of accomplishing the AFC2TIG tasking. The [Air Force] has delineated the task order in the sample task and our assumption is that this parallels the current operation." DSDJ Proposal, Vol. 3, STO 3, at 3-5. DSDJ went on to state that "we will change nothing until we know the current operation." Id. at 5. As noted by the agency, DSDJ's STO 3 proposal not only did not include the required complete and logical approach towards task accomplishment, but affirmatively indicated DSDJ's lack of knowledge of AFC2TIG's operations. Further, DSDJ's assumption of a 5-year duration of the task order was inconsistent with the stated 1-year period of the task. The agency reasonably concluded that DSDJ's response to STO 3 therefore did not satisfy the RFP requirements. In addition, we find reasonable the agency's determination that DSDJ's assumption that it could [DELETED], without offering a detailed, specific plan for [DELETED] (and without offering evidence to show that it could [DELETED], represented a significant shortcoming in its proposal that increased the risk to the agency.
CAAS SOW Task Orders
DSDJ argues that the downgrading of its proposal for failure to include a technical approach to or plan for performing task orders under the CAAS SOW was inconsistent with the stated evaluation approach. According to the protester, the agency's focus on technical approach or plan was inconsistent with the reference to "Technical Capability" in the RFP's description of the technical subfactor of the mission capability factor, which read as follows:
a. Personnel Education and Experience: This subfactor will evaluate the [offeror's] plan, including resumes (of key personnel only), to ensure their corporation/team possesses or can readily obtain appropriate levels of education, experience, and expertise to accomplish the range of tasks described in accordance with the Statement of Work, paragraphs 2.1, 2.2, and 2.3.
b. Technical Capability: The government will evaluate the offeror's ability to accomplish the tasks defined in SOW paragraphs 2.1, 2.2, and 2.3, including any innovative processes/procedures.
RFP Sec. M, Evaluation Criteria, Mission Capability, Technical Subfactor. DSDJ maintains that "technical plan" is not encompassed by the term "technical capability."
While procuring agencies are required to identify the significant evaluation factors and subfactors in a solicitation, they are not required to identify the various aspects of each factor which might be taken into account, provided that such aspects are reasonably related to or encompassed by the RFP's stated evaluation criteria. NCLN20, Inc., supra, at 2. Here, although there was no express reference to a technical plan or approach, we think it was implicit that, in order for an agency to evaluate an offeror's "ability to accomplish the tasks," the offeror would have to provide some explanation of how it planned to accomplish the tasks. Further, we think the concept of a plan or approach is consistent with both the RFP reference to innovative processes and procedures, RFP Sec. M, Evaluation Criteria, Mission Capability, Technical Subfactor, subsection (b), and with the RFP's general direction that an offeror's mission capability volume be specific and detailed, and should clearly demonstrate the offeror has a thorough understanding of the actions required to accomplish this effort. Statements that the offeror understands, can, or will comply with the SOW, and phrases such as 'standard procedures will be employed,' or 'well known techniques will be used' etc., will be considered unacceptable.
RFP Sec. L, Preparation of Proposals, Preparation of Mission Capability Volume. /2/ We conclude that the agency reasonably downgraded DSDJ's proposal for offering only minimal, inadequate detail concerning its technical plan or approach to performing task orders under the CAAS SOW.
Upon reviewing DSDJ's STO volume, the Air Force discovered that DSDJ had proposed [DELETED] to perform the task orders. Specifically, the Air Force noted that DSDJ had proposed to use the following [DELETED] personnel, [DELETED], to work on the STOs full-time ([DELETED] hours per year) or nearly full time: (1) its [DELETED] was proposed to work [DELETED] proposed hours on STO 1; (2) its [DELETED] was proposed to work [DELETED] proposed hours for STO 2; and (3) its [DELETED] was proposed to work [DELETED] hours on STO 3. /3/ (In addition, DSDJ's [DELETED] was proposed to work [DELETED] hours on STO 3.) The Air Force concluded that the fact that DSDJ had found it necessary to use [DELETED] in performing the STOs called into question its ability to recruit for or otherwise staff any task orders it might receive, and called into question [DELETED]. Accordingly, the agency downgraded the proposal under the management subfactor.
Although DSDJ seems to assert that [DELETED], DSDJ's proposal did not clearly explain how this would occur when [DELETED]. Given the importance placed by the solicitation on ensuring continuity of services, RFP Sec. M, Evaluation Criteria, Mission Capability, Management Plan Subfactor; see RFP Sec. L, Preparation of Proposals, Mission Capability Volume, we see nothing unreasonable in the agency's attributing a materially higher risk to this approach. More importantly, we think the agency could reasonably determine that DSDJ's reliance on [DELETED] called into question DSDJ's ability to staff task orders it might receive without undue delay and disruption. Taken together, these concerns reasonably warranted a significant downgrading of DSDJ's proposal under the management subfactor.
Given DSDJ's unacceptable or marginal ratings under the technical and STO subfactors, as well as the associated high risk ratings, the Air Force's determination to exclude DSDJ's proposal from the competitive range was reasonable. /4/
By letter of April 26, 2001, DSDJ reported to the contracting officer that on April 23, shortly after the April 19 closing time, it had learned that the identities of the offerors and the members of the source selection evaluation team had been disclosed to one of the incumbent contractors by a subcontractor. In addition, DSDJ reported that on April 25 it had learned that its offer had been discussed with other third parties. DSDJ Letter to the Agency, April 26, 2001. DSDJ claims that an evaluator representing [DELETED], and whose identity had been revealed to the above incumbent contractor, was known to that contractor through his work as the government's [DELETED] overseeing the incumbent's CAAS contract. DSDJ asserts that this evaluator unfairly and unreasonably evaluated DSDJ's proposal.
The disclosure does not furnish a basis to question the exclusion of DSDJ's proposal from the competitive range. An investigation by the Air Force Office of Special Investigations was inconclusive; however, the contracting officer concluded that since the disclosure occurred after the receipt of initial proposals, none of the offerors could have obtained an unfair competitive advantage in preparing their proposals. Agency Report, Contracting Officer's Statement of Facts, at 4-5; Agency Comments, Aug. 21, 2001, at 3-4; Agency Comments, Aug. 31, 2001, attach. 4, OSI Notes. There is no evidence in the record showing that the agency's conclusion was incorrect.
Further, while the protester would have us conclude that the disclosure led to a biased evaluation, we will not attribute bias in the evaluation of proposals on the basis of inference and supposition, Five-R Co., B-288190, Sept. 10, 2001, 2001 CPD Para. 163 at 4; without strong evidence to support such a conclusion, we will not assume that agency employees act in bad faith. Communication Techs., Inc., B-283491, B-283491.2, Nov. 30, 1999, 99-2 CPD Para. 104 at 7. The record here contains no evidence--beyond the protester's speculation--of bias or bad faith. The only evidence at all on the point is a sworn declaration executed by the AF2CTIG evaluator, in which he explains that his relationship with the incumbent contractor and its employees was solely in his official capacity as the government's quality assurance evaluator, and that his evaluation was based on his professional judgment rather than bias against DSDJ or favoritism towards any other offeror. In any case, since we have found that the agency's evaluation of DSDJ's proposal and the resulting exclusion of the proposal from the competitive range were reasonable, there is no basis here for a finding of bias. See Fox Dev. Corp., B-287118.2, Aug. 3, 2001, 2001 CPD Para. 140 at 2-3; Red Road Inc., B-283713.2, Mar. 14, 2001, 2001 CPD Para. __ at 4; see generally ECC Int'l Corp., B-277422, B-277422.2, Oct. 14, 1997, 98-1 CPD Para. 45 at 5 n.4 (even where bias is shown, it provides no basis to sustain a protest where the bias did not translate into action and the evaluation is otherwise reasonable).
The protest is denied.
Anthony H. Gamboa General Counsel
1. Although DSDJ also noted that its team included a [DELETED] with the capability to address the nuclear requirements of this task, it stated that "[a]s bid, this task order does not call for [DELETED]," and it did not include any [DELETED] hours in its STO 2 response. DSDJ Proposal, Vol. 3, STO 2, at 1-2.
2. In any case, it is not apparent that DSDJ in fact was misled by the RFP's terminology under the technical subfactor, since DSDJ also offered little detail as to technical approach in its STO volume, notwithstanding the RFP's explicit statement that the technical approach to performing the STOs would be evaluated.
3. DSDJ proposed using [DELETED]. DSDJ Proposal, Mission Capability Volume Sec. 2.1.2.
4. DSDJ asserts that its proposal should have received an excellent rating, rather than the very good rating it received, for past performance; according to the protester, it failed to receive the higher rating only because the agency improperly gave undue weight to its performance on its only cited Air Force contract, for which it received a very good reference, and failed to give adequate weight to its performance on four Navy contracts, for three of which it received excellent references. Given our conclusion that the evaluation of its proposal under the mission capability evaluation factor, along with the associated risk ratings, supported the exclusion of the proposal from the competitive range, we need not address the challenge to the past performance rating.