Mission Essential Personnel, LLC
B-408788: Dec 6, 2013
- Full Report:
Mission Essential Personnel, LLC (MEP), of Columbus, Ohio, protests the award of a contract to WorldWide Language Resources, Inc. (WWLR), of Fayetteville, North Carolina, issued by the Department of the Air Force, U.S. Special Operations Command (SOCOM), under request for proposals (RFP) No. H92222-12-R-0059 for translation and interpretation services. The protester challenges the agency's evaluation of MEP's and the awardee's proposals, and argues that SOCOM failed to conduct meaningful discussions with MEP.
We deny the protest.
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release.
Matter of: Mission Essential Personnel, LLC
Date: December 6, 2013
1. Protest challenging the agencys evaluation of proposals concerning the offerors current capacity to provide linguists is denied where the evaluation was reasonable and consistent with the terms of the solicitation.
2. Protester is not an interested party to challenge the agencys evaluation regarding the awardees proposal where the protester was reasonably found technically unacceptable, and where the protester does not challenge the acceptability of the proposal of an intervening offeror that was also found technically acceptable.
We deny the protest.
The solicitation, which was issued on December 20, 2012, anticipated the award of a fixed-price contract for a base year and four 1-year options to provide linguist services within and outside the continental United States. The RFP stated that award would be made to the offeror whose proposal provided best value, based upon the evaluation of four areas: (1) general and administrative qualifying criteria, (2) technical/management capability, (3) past performance, and (4) price. RFP at 51. The technical/management capability area had two evaluation factors: (1) technical capability, which was comprised of two subfactors (current capacity and transition plan), and (2) management capability, which was comprised of three subfactors (management plan, notional linguist video, and small business plan). Id. Within the technical/management capability area, the RFP stated that the technical capability factor was more important than the management capability factor. Id. at 52. The technical capability subfactors were of equal importance, and the management capability subfactors were listed in descending order of importance. Id. For purposes of award, the solicitation stated that the non-price criteria were more important than price. Id.
As relevant here, the solicitation required an offeror to complete and submit a spreadsheet (attachment J-3 to the solicitation) that would be used to evaluate the offerors current capacity. Attachment J-3 required an offeror to list 27 pieces of information concerning each linguist proposed to meet the solicitations requirements. Along with information such as the linguists name, company, citizenship status, and language proficiency, the RFP required an offeror to submit copies of each linguists [language] test from a certified test agency hyperlinked to Attachment J-3. Id. at 41; attach. J-3. The solicitation stated that all information on attachment J-3 was subject to verification. Id. at 41.
The RFP stated that the evaluation of an offerors current capacity would consider the offerors current capacity to provide linguists that meet the requirements of the SOW [statement of work], as reflected on the offerors attachment J-3. Id. at 54. In this regard, the statement of work required that all linguists have the ability to listen, read, write, and speak in clear and concise grammar and pronunciation, and obtain a minimum score of 3 on the Interagency Language Roundtable (ILR) scale in the required foreign language and English, as tested by an external language testing agency. RFP, Statement of Work, at 66. The solicitation also provided that an offerors capacity would be based upon the offerors ability to utilize individuals currently employed by the company . . . who are available to support FOC [final operating capability] requirements. RFP at 54.
With regard to the transition plan subfactor, the solicitation explained that an offerors transition plan would be evaluated for its approach to meeting the transition schedule. Id. 54-55. An offerors transition plan was required to address its approach to provide the required linguists for each performance site, with minimal risk, at the following milestones: (1) contract award; (2) initial operating capability (IOC); and (3) final operating capability, when 330 linguists were required. Id.
SOCOM received proposals from seven offerors. Agency Report (AR) at 13. Based upon SOCOMs initial evaluation, the agency established a competitive range of five offerors, including MEP and WWLR. Id. at 14. During discussions, the five remaining offerors received multiple evaluation notices and a summary of the agencys evaluation of their initial proposal. As relevant here, each offeror received specific evaluation notices regarding their technical/management capability area, because the agency found that all offerors were unacceptable in this area. Id. With regard to MEP and WWLR, both offerors received essentially identical evaluation notices for the current capacity subfactor, which stated as follows:
Offeror failed to provide the requisite number of linguists required by the J-1 SOW [statement of work] which represents a deficiency in the proposal. Offerors J-3 Attachment was deficient due to the errors/omissions including missing, incomplete or incorrect entries to include: SSNs [social security numbers], labor categories, languages, and test dates and/or scores. In addition, the Offeror failed to provide enough payroll records, Letters of Commitment (LOC), or names on Attachment J-3 necessary to meet the FTE requirement.
AR, Tab 44, MEP Evaluation Notice, at 3; Tab 45, WWLR Evaluation Notice, at 3. In addition, the evaluation notice for both offerors explained:
Please update the Attachment J-3 to include all required information. Inclusion of any linguist who does not have a test score of 3 or higher from a certified third party test agency within the past 12 months in the target language(s) AND English, an assigned Government Category, or a full SSN (where required) will be disqualified and not counted towards the requirement. Please provide hyperlinks to all test certifications.
The current capacity evaluation notices also informed both MEP and WWLR of the number of linguists that met the requirements of the solicitation after the agencys initial evaluation. Id. at 4. MEP was informed that 118 of its linguists met the requirements, while WWLR was notified that 78 of its linguists met the requirements. Id. at 3.
The agency received final proposals from the five offerors in the competitive range on June 21, 2013. AR at 18. As relevant here, and as discussed below, SOCOM evaluated offerors under the current capacity subfactor of the technical capability factor based on the linguists identified in attachment J-3 to each offerors proposal. The agency considered three primary areas: (1) whether the linguists were qualified, that is, whether the attachment reflected 27 pieces of required information for each linguist; (2) whether the linguists were verified, that is, whether the attachment contained verifiable test certifications demonstrating that each linguist received a minimum score of 3 on all of the required language tests; and (3) whether the attachment reflected acceptable linguists (i.e., qualified and verified) for each of the required 330 positions, that is, a linguist for each required language category. See AR, Tab 103, Source Selection Evaluation Board Recommendation, at 7, 74.
SOCOMs evaluation of MEPs final proposal under the current capacity subfactor found that of the 545 linguists proposed by MEP, only 163 met the solicitations requirements, which was 49 percent of the overall requirement for 330 linguists. AR, Tab 104, Source Selection Decision, at 4. Specifically, the agency found: (1) of the 545 linguists proposed, 311 were qualified because all 27 items on attachment J-3 were complete; (2) of the 311 qualified linguists, 176 were verified because MEP submitted test certifications to demonstrate an ILR test score of 3 or higher for the linguists ability to read, write, listen, and speak in the target language, and in English; and (3) of the 176 qualified and verified linguists, 163 matched the specific language and category requirements of the solicitation (i.e., 13 of the 176 linguists duplicated requirements for positions that were already satisfied). Id. The agency concluded that because MEPs proposal offered only 49 percent of the required number of linguists, it merited a deficiency. Id. at 4-5. In accordance with the solicitations evaluation criteria, the agency assigned MEPs proposal an unacceptable rating for the current capacity subfactor, an unacceptable rating under the technical capability factor, and an overall unacceptable rating for the technical/management capability area. Id. at 3. Since the RFP stated that an unacceptable rating would apply to a proposal that does not meet the requirements and contains one or more deficiencies, and also advised that a proposal with an unacceptable rating would be viewed as unawardable, RFP at 52, the agency concluded that MEPs proposal was ineligible for award. Id. at 8.
SOCOMs evaluation of WWLRs final proposal under the current capacity subfactor found that of the 667 linguists proposed by WWLR, 312 met the solicitations requirements, which was 95 percent of the solicitations requirement of 330 linguists. Id. at 4. The agency concluded that although WWLRs proposal offered less than the solicitation requirement of 330 linguists, the proposal merited a weakness, as opposed to a deficiency, because WWLR provided a large enough number of linguists with complete, verifiable information. Id. For this reason, the agency assigned the awardees proposal a marginal rating for the current capacity subfactor, an acceptable rating for the technical capability factor, and an overall acceptable rating for the technical/management capability area. Id. at 3.
Also relevant here is SOCOMs evaluation of Offeror 3s final proposal under the current capacity subfactor. The agency found that of the 464 linguists proposed, 278 met the solicitations requirements, which was 84 percent of the 330 required linguists. Id. at 4. The agency concluded, as it did with WWLR, that the proposal merited a weakness, and assigned it a marginal rating for the current capacity subfactor, a marginal rating for the technical capability factor, and an overall marginal rating under the technical/management capability area. Id. at 4-5.
A summary of the evaluation results for MEP, WWLR, and Offeror 3 is set forth below:
Notional Linguist Video
Small Business Plan
Id. at 3, 8.
Based upon the agencys evaluation of the revised proposals, the source selection authority concluded that MEPs proposal was ineligible for award because it contained deficiencies relating to its current capacity to provide linguists. Id. at 5, 8. For this reason, MEPs proposal was not included in the best value tradeoff. Id. at 8. The agency conducted its tradeoff decision between the only two technically-acceptable offerors, WWLR and Offeror 3. The agencys evaluation concluded that WWLRs proposal provided the best value, and awarded that firm the contract on August 21. Following a debriefing, MEP filed a protest with our Office on August 28.
MEPs protest challenges many aspects of SOCOMs evaluation of the protesters and awardees proposals. Based upon our review of the record, and as explained in detail below, we conclude that the agency reasonably found the protesters proposal unacceptable under the technical/management capability area, and therefore properly excluded it from award consideration. Since we find that SOCOM reasonably determined that MEPs proposal was unawardable, and because a third offeror was found technically acceptable and therefore in line for award ahead of MEP, we conclude that the protester is not an interested party to challenge the evaluation of the awardees proposal or the award decision.
MEPs Technical/Management Capability Evaluation
MEP asserts that SOCOM unreasonably evaluated its proposal as unacceptable under the current capacity subfactor of the technical capability factor, which led to an overall unacceptable rating under the technical/management capability area. Specifically, the protester argues that the agency unreasonably evaluated the number of linguists offered in MEPs proposal, and improperly assessed a deficiency based on that evaluation. We find no merit to this argument.
In reviewing an agencys evaluation, we will not reevaluate offerors proposals; instead, we will examine the agencys evaluation to ensure that it was reasonable and consistent with the solicitations stated evaluation criteria and procurement statutes and regulations. The Eloret Corp., B-402696, B-402696.2, July 16, 2010, 2010 CPD ¶ 182 at 12. An offerors mere disagreement with the agencys evaluation is not sufficient to render the evaluation unreasonable. Id.
The solicitation stated that, for the current capacity subfactor, the agency would evaluate an offerors current capacity to provide linguists that meet the requirements of the statement of work. RFP at 54. The solicitation required each offeror to complete and submit a spreadsheet (attachment J-3) with its proposal, and hyperlink to the spreadsheet copies of each linguists test from a certified test agency. Id. In this regard, the solicitation required each linguist to obtain a score of 3 or higher on a total of 4 tests (listening, reading, writing, and speaking) for both English and the target language. The solicitation further advised that all information in attachment J-3 was subject to verification. Id. at 41.
As discussed above, the agencys review of MEPs attachment J-3 found that, of the 545 linguists MEP proposed, only 163 linguists were qualified, verified, and matched the solicitations language and category requirements. AR, Tab 104, Source Selection Decision, at 3-4. In this regard, the agency determined that many of MEPs proposed linguists were not qualified, due to attachment J-3 entries that were not complete, or due to test scores that could not be verified because the J-3 spreadsheet was missing hyperlinks to the required test certifications. For example, although MEP indentified 545 linguists on attachment J-3, there were incomplete test certifications for over 300 of those linguists (i.e., certifications demonstrating that each linguist received an ILR test score of 3 or higher regarding the ability to read, write, listen, and speak in the target language and English). Id. For this reason, the agency concluded that MEPs proposal contained a deficiency and rated this subfactor unacceptable. Id.
MEP first argues that SOCOM unreasonably concluded that its proposal did not offer the required number of linguists. In this regard, MEP asserts that the solicitation contained an ambiguity since it was not clear that an agency would exclude a linguist from consideration if an offeror failed to provide hyperlinks to test certifications in all four functional language testing areas (reading, writing, listening, and speaking) in the target foreign language and English. The protester notes that while attachment J-3 required offerors to provide hyperlinks to test certifications for the linguists, the spreadsheet only contained space for an offeror to identify the lowest score for each linguist target foreign language and English. See RFP, attach. J-3. For example, if a linguists target foreign language reading ability was rated 3, and its writing, listening, and speaking abilities were rated 4, an offeror would enter a single score of 3 in the required spreadsheet column to represent the lowest of the four functional testing area scores. Id. MEP contends, therefore, that because the attachment required that offerors list only the lowest score for each linguist in both its target foreign language and English, the requirement to hyperlink the test certification for purposes of verification should have been interpreted to require offerors to hyperlink only that single (lowest) test certification, rather than the test certifications for all four functional areas in English and the target language. We disagree.
The solicitations statement of work required that all linguists have the ability to listen, read, write, and speak in clear and concise grammar and pronunciation, and obtain a minimum score of 3 on the ILR scale in the required foreign language and English as tested by an external language testing agency. The RFP required offerors to submit copies of each linguists language test from a certified test agency hyperlinked to attachment J-3, which was subject to verification by the agency. See RFP at 41. While MEP is correct that the attachment J-3 spreadsheet contained only two entry spaces for offerors to submit the lowest test score of the four functional areas for the target language and English, the solicitation clearly stated that all information would be verified by the agency to ensure that each linguist had a 3 or higher rating in all of the required areas. See id.
As SOCOM explains, the requirement to include only the lowest test score on the attachment J-3 spreadsheet was for ease of evaluation to ensure the linguist met the minimum threshold of the solicitation (i.e., was not rated below a score of 3), prior to performing a full verification of each score (via the hyperlinked test certifications). Supp. AR (Oct. 24, 2013) at 13-14. The agency argues, however, that the requirement to enter only the lowest score achieved on the attachment J-3 spreadsheet did not make ambiguous the requirement to provide hyperlinks to test certifications for all of the relevant tests so that the agency could verify the test results. In short, we agree with the agency that the solicitation was not ambiguous as to the requirement to submit test certifications for each functional area.
Moreover, even if the solicitation was initially ambiguous with regard to the test certification requirement, the agencys evaluation notice to the protester made clear that MEP was to provide hyperlinks to all test certifications within its attachment J-3. See AR, Tab 44, MEP Evaluation Notice, at 3. Thus, MEP was clearly on notice that it was required to provide hyperlinks to all test certifications--for each functional testing area--not simply one of the four. In fact, as the agency notes, MEPs proposal identified 218 linguists for whom it provided hyperlinks to all test certifications (i.e., certifications for all four functional areas of the target language and English). See Technical Team Chief Declaration (Sept. 25, 2013), at 1. Because we conclude that there was no ambiguity in the solicitation, we find that the agencys evaluation of MEPs proposal was reasonable.
Next, MEP argues that SOCOMs evaluation was unreasonable because the agency applied an overly-mechanical evaluation standard that improperly focused solely on attachment J-3, and did not reasonably consider the protesters overall capacity to provide linguists. In this regard, MEP asserts that its proposal presented its vast experience in providing these services and offered hundreds of additional linguists with largely complete J-3 entries. Protest at 17. MEP contends that SOCOM failed to give any consideration to the explanation in its proposal that due to their deployment to austere environments and their mission critical roles, many qualified linguists are unable to sign letters of commitment or refresh their language test scores. Id. The protester further argues that the agency failed to consider MEPs offer to supplement the attachment J-3 information after award. Id.
In response, the agency asserts that it evaluated MEPs proposal in accordance with the solicitation criteria, and properly considered MEPs current capacity based upon the offerors ability to utilize individuals currently employed by the company who met the solicitations requirements, including current test certifications. SOCOM argues that the evaluation documents show that the test certification requirement was not waived or relaxed for any offeror. In fact, during the question and answer period, an offeror expressed the exact concern now raised by MEP--i.e., that deployed linguists could not update their test scores--to which the agency responded, language test scores are required at proposal submission per the RFP. AR, Tab 6, Question and Answers, at 1. Thus, offerors were aware that all information had to be provided within their proposals, not after award. On this record, we conclude that the agencys actions were reasonable and in accordance with the solicitation.
Finally, MEP contends that the agency failed to treat offerors equally because although neither MEP nor WWLR met the solicitations requirement for 330 linguists, only MEP received an unacceptable rating. The protester asserts that the agency failed to mitigate the effects of its low linguist numbers by looking at its transition approach, as it did for WWLR. MEP also contends that the agencys evaluation of the offerors current capacity created a pass/fail scheme.
Our review of the record shows that the agencys evaluation did not, as the protester alleges, consider any offerors transition plan in its evaluation of the offerors current capacity. While MEP believes that the agency should have considered its additional capacity available after award during transition, the agency was not required to do so by the terms of the solicitation for the reasons discussed above.
To the extent the protester argues that the agency applied the evaluation ratings in an inconsistent or unequal manner, we disagree. As discussed above, the agency concluded that MEPs proposal contained a deficiency for demonstrating a current capacity of only 49 percent (163 linguists) of the required 330 linguists; in contrast, the agency found that WWLRs proposal contained a weakness for demonstrating a current capacity of 95 percent (312 linguists) to meet the required 330 linguists, and Offeror 3s proposal contained a weakness for proposing a current capacity of 84 percent (278 linguists). We find that the agencys evaluation did not, as the protester argues, create an arbitrary pass/fail scheme, but instead appropriately rated the offerors on the adjectival scale described in the solicitation. In this regard, it was within the agencys discretion under the solicitations evaluation scheme to find that MEPs current capacity of 163 linguists was too low and merited a deficiency and an unacceptable rating. It was also within the agencys discretion to find that the awardees current capacity of 312 linguists and Offeror 3s current capacity of 278 linguists were sufficiently close to the required level of 330 linguists so as to merit weaknesses, which resulted in marginal--but not unacceptable--ratings for each offerors proposal. Accordingly, we conclude that the agencys evaluation and unacceptable rating for MEPs current capacity, as well as its unacceptable technical/management capability rating, was reasonable and in accordance with the solicitation.
Other Protest Challenges
MEP raises numerous other challenges concerning SOCOMs evaluation of MEPs proposal, the evaluation of the awardees proposal, and the award decision. For the reasons discussed below, in light of the agencys reasonable rejection of the protesters proposal as unacceptable, we need not address the protesters other arguments concerning the evaluation of its proposal. Additionally, we also find that the protester is not an interested party to challenge the agencys evaluation of the awardees proposal or the award decision.
The protester argues that, notwithstanding its unacceptable rating under the current capacity subfactor, if the agency had assigned its proposal a higher rating under the transition plan subfactor, its proposal might have merited an other than unacceptable rating under the higher-level technical factor. In this regard, the protester notes that the solicitation stated that the current capacity subfactor and the transition plan subfactor would be rolled-up into the technical capability factor, which would then be rolled up into the technical/management capability area.
The protesters argument is inconsistent with the terms of the solicitation. The solicitation stated that for the technical/management capability area, as well as the factors and subfactors for that area, offerors proposals would be evaluated on a rating scale from outstanding to unacceptable. The solicitation additionally clarified that an unacceptable rating would be applied to a proposal that contains one or more deficiencies. RFP at 52. With a deficiency, there was only one applicable rating MEP could receive in accordance with the solicitations terms--an unacceptable rating. Thus, even if MEP were to receive a higher rating under the transition plan subfactor, as it asserts, such a rating would not make its proposal acceptable under the technical capability factor or the overall technical/management capability area. Accordingly, even if MEPs other arguments regarding the evaluation of its proposal had merit, the protester was not prejudiced by any alleged errors in those areas--i.e., its proposal would still be rated unacceptable under the technical capability factor, and would be ineligible for award under the solicitations evaluation scheme. See ITT Corp.-Electronic Sys., B-402808, Aug. 6, 2010, 2010 CPD ¶ 178 at 7 (prejudice is an essential element of every viable protest, and where none is shown or otherwise evident, we will not sustain a protest, even where a protester may have shown that an agencys actions arguably were improper.)
With regard to the agencys evaluation of the awardees proposal and award decision, we conclude that MEP is not an interested party. See VariQ Corp., B-407193, Nov. 27, 2012, 2013 CPD ¶ 233 at 4-5. As discussed above, the agency reasonably found the protesters proposal ineligible for award, and found that both WWLR and a third offeror were technically acceptable. The agency conducted a price-technical tradeoff between these two acceptable offerors proposals. AR, Tab 104, Source Selection Decision, at 9. The protester did not challenge the evaluation of the third offerors proposal, aside from arguing that the agency had improperly found WWLRs and the third offerors proposed level of linguists to be technically acceptable--an argument which, as discussed above, we find has no merit. Consequently, even if MEPs arguments concerning the evaluation of WWLRs proposal or the award decision had merit, Offeror 3, rather than MEP, would be in line for award. For this reason, MEP is not an interested party to challenge the award. See Coley & Assocs., Inc., B-404034 et al., Dec. 7, 2010, 2011 CPD ¶ 6 at 7.
The protest is denied.
Susan A. Poling
 For the record, area one, general and administrative qualifying criteria, was to be evaluated on a pass/fail basis. RFP at 51. Area two, technical/management capability, was to be evaluated based upon the following rating scale: outstanding, good, acceptable, marginal, and unacceptable. Id. at 51-52. Area three, past performance, was to be assigned a confidence rating as follows: substantial confidence, satisfactory confidence, limited confidence, no confidence, and unknown confidence. Id. at 52. Area four, price, was to be evaluated to ensure fair and reasonable pricing. Id. at 57.
 The ILR scale is a 0-5 rating scale of language ability.
 The agency verified test scores using the hyperlinks provided by the offerors to each test certification.
 The RFP stated that a marginal rating applied where a proposal does not clearly meet the requirements and has not demonstrated an adequate approach . . . [and] has one or more weaknesses which are not offset by strengths. RFP at 52.
 Offeror 3 did not receive a small business plan subfactor rating because the firm is classified as a small business. AR, Tab 104, Source Selection Decision, at 8.
 The other two offerors were found to be unacceptable and ineligible for award due to deficiencies in their proposals under the current capacity evaluation subfactor. AR, Tab 104, Source Selection Decision, at 8.
 Any protest with regard to an ambiguity in the evaluation notice would have to have been filed by the time for receipt of final proposals. See 4 C.F.R § 21.2(a) (2013).
 The protester also argues that the agency failed to engage in meaningful discussions with MEP because the agency failed to explain that MEP was required to provide a linguists test certification for each of the four functional areas. For the reasons set forth above, we disagree. The agencys evaluation notice to MEP informed the protester of its duty to provide all test certifications for the linguists on the attachment J-3. In this regard, the agencys evaluation notice informed MEP that its attachment J-3 was deficient due to errors/omissions including missing, incomplete or incorrect entries to include: SSNs [social security numbers], labor categories, languages, and test dates and/or scores. AR, Tab 44, MEP Evaluation Notice, at 3. The agencys evaluation notice also informed MEP that all test certifications were to be provided via hyperlink to the J-3 attachment. Id. Thus, we find no merit to MEPs assertion that the agency failed to raise this issue during discussions. See Vizada, Inc., B-405251 et al., Oct. 5, 2011, 2011 CPD ¶ 235 at 11.
 In addition to MEP challenges regarding the current capacity evaluation subfactor, the protester argues that the agency did not reasonably evaluate its proposal under the transition plan, management capability, and past performance factors and subfactors.