Paragon Systems, Inc.

Decision

Matter of:  Paragon Systems, Inc.

File:  B-414515; B-414515.2

Date:  June 29, 2017

DIGEST

1.  Protest that agency waived solicitation's page limit for awardee's proposal is denied where record shows the agency reasonably determined that contents of past performance section of awardee's proposal were properly exempt from the page limit. 

2.  Protest that agency misevaluated both protester's and awardee's management approach proposals, and past performance, is denied where record shows the evaluation was reasonable and consistent with solicitation criteria. 

3.  Protest that agency made an unreasonable source selection decision is denied where source selection decision was consistent with solicitation and demonstrated reasonable judgment that awardee's proposal was higher-rated overall, and that paying its higher evaluated price was justified by identified advantages. 

Paragon Systems, Inc., of Herndon, Virginia, protests the award of a contract to Triple Canopy, Inc., of Reston, Virginia, by the Department of Homeland Security (DHS), Federal Protective Service, under request for proposals (RFP) No. HSHQW9-16-R-00002, for armed protective security officer (PSO) services at federally owned, leased, or occupied facilities, primarily in Northern California.  Paragon, the incumbent contractor, argues that DHS failed to apply the RFP requirements equally, misevaluated both firms' proposals, and made an unreasonable source selection decision. 

We deny the protest. 

BACKGROUND

The RFP, issued as a commercial item solicitation on January 27, 2016, sought fixed-hourly-rate proposals in contemplation of the award of a single indefinite-delivery, indefinite-quantity contract for a base year and four option years.  RFP at 14.  The RFP divided PSO services into basic services, temporary additional services, and emergency security services. 

The contract was to be awarded to the responsible offeror whose proposal provided the best value under three factors:  relevant past performance, management approach, and price.  RFP amend. 2, at 2.  Relevant past performance was more important than management approach, and those two factors when combined were "more important" than price.[1]  Id.  The RFP also provided a separate alternative award scheme labeled "Efficient Competition," under which the agency asserted the authority to evaluate only proposals with the "most competitive" pricing, and if that evaluation resulted in the "highest possible technical adjectival rating" for any of them the agency would not evaluate other proposals.  RFP at 406. 

The management approach factor was divided into three subfactors:  quality assurance, transition, and staffing.  Id. at 406.  The first of those, quality assurance, was divided into two elements[2]:  field level supervision of PSOs, and quality control.  Id.  The third subfactor, staffing, was also divided into two elements:  staffing plan, and relief plan.  Id. 

Offerors were to submit proposals organized in two parts:  a technical proposal and a price proposal.  The instructions specified that "[p]ast [p]erformance shall be provided under a separate cover."  Id. at 402-03.  The RFP directed offerors to submit five copies of the technical proposal, of which three copies of the management approach section were to be redacted to remove all references to the offeror and any subcontractors.  Id. at 402.  Technical proposals were also subject to a page limit of 20 pages, which "exclude[ed] the cover page and past performance forms and questionnaires;"[3] the RFP stated that "[p]ages in excess of this limitation will not be evaluated."  Id. at 403. 

DHS received proposals from six firms, including Paragon and Triple Canopy.  A technical evaluation team (TET) reviewed proposals and past performance information, and prepared a report reflecting its evaluation conclusions.  Overall, the evaluators rated Triple Canopy highly acceptable under both factors, and rated Paragon highly acceptable under the relevant past performance factor and acceptable under the management approach factor.  Agency Report (AR) Tab 8, TET Report, at 29, 35, 46.

In addition to providing a narrative description of the proposals and the evaluators' views supporting the adjectival ratings, the TET also provided a summary comparing the offerors on the basis of their non-price proposals.  Id. at 65-74.  The summary observed that both firms' past performance was highly relevant and favorable, but that Paragon's past performance was more relevant by virtue of being the incumbent contractor.  Id. at 73.  Regarding their management approaches, the TET summarized its view that Triple Canopy's proposal was clearly superior, and had multiple strengths and no weaknesses, while Paragon's had strengths but also multiple weaknesses.  Id. at 73-74.  The TET specifically identified Paragon as having provided an inadequate explanation of its approach to supervising posts in the northern area to be covered by the contract, and as lacking detail regarding the staffing of emergency security services, whereas Triple Canopy provided a better approach to transition than Paragon.  Id.  Altogether, the TET expressed its view that even though the past performance factor was more important than management approach, Paragon's slight advantage in past performance was outweighed by the significant advantage Triple Canopy had under the management approach factor.  Id. at 74. 

The results of the evaluation report and the price evaluation were as follows:

	Triple Canopy	Paragon
Relevant Past Performance	Highly Acceptable	Highly Acceptable
Management Approach	Highly Acceptable	Acceptable
Total Evaluated Price	$116.3 million	$115.3 million

AR Tab 10, Source Selection Decision Memorandum, at 2. 

The source selection authority (SSA) prepared a decision memorandum that first described the narrative results of the evaluations of Triple Canopy and Paragon, and then explained how the proposals compared to each other under each factor.  Under the relevant past performance factor, the SSA noted that Paragon had more relevant past performance as the incumbent, but that the firms were essentially equal in past performance quality.  Ultimately, while both offerors presented a low risk of unsuccessful performance, the SSA concluded that Paragon's past performance provided a slightly lower risk than Triple Canopy's.  Id. at 5. 

Under the management approach evaluation, the SSA concluded that some of Paragon's strengths under the field level supervision element were partially offset by weaknesses, but again ultimately concluded that Triple Canopy's proposal presented less risk and more benefit to the agency.  Id. at 5-6.  Next, the SSA explained that Triple Canopy's approach to providing performance incentives made its proposal superior under the quality control element.  Id. at 7.  Similarly, the SSA also found that Triple Canopy's proposal was superior under both the transition and staffing subfactors.  Id. at 7-9. 

Finally, the SSA considered Paragon's small advantage in relevant past performance and Triple Canopy's significant advantage in management approach, and determined that Triple Canopy's proposal offered a better value to the agency, and justified incurring the higher price.[4]  Accordingly, the SSA selected Triple Canopy for award.  Id. at 12.  Following notice of award and a debriefing, Paragon filed this protest. 

PROTEST

Paragon argues that the evaluation of proposals was unreasonable, relied on the application of unstated criteria, and treated the offerors unequally.  The protester also argues that Triple Canopy's proposal exceeded the page limit, and that the SSA failed to exercise independent judgment in making the source selection decision.  We have considered all of Paragon's claims and find that they lack merit.  We address a selection of them below. 

Proposal Page Limit

Paragon argues that Triple Canopy's technical proposal exceeded the RFP's page limit.[5]  In particular, Paragon contends that in addition to 20 pages responding to the management approach criteria, Triple Canopy's proposal included an additional 39 pages (much of which is near the front of the proposal), thereby significantly exceeding the page limit.  As a result, Paragon argues that DHS should have disregarded everything past the twentieth page of Triple Canopy's proposal (effectively eliminating the management approach section of its proposal).  While Paragon acknowledges that the RFP provided that past performance forms and questionnaires would not be subject to the page limit, it argues that those terms should be narrowly construed so that other past performance information submitted by Triple Canopy--primarily copies of contractor performance assessment reports (CPAR)[6]--should have been counted.  Protester's Comments at 6-7. 

DHS argues that although Triple Canopy's proposal included more than 20 pages, the agency properly did not count pages that the RFP excluded from the page limit, and also did not count pages that provided a list of past performance sources, copies of CPARs, and another past performance quality report.  Supplemental AR at 2-3.  Additionally, the agency states that it excluded from the evaluation a letter of commendation (on behalf of Triple Canopy's subcontractor) included with Triple Canopy's past performance information.[7]  Id. at 4. 

The record shows that Triple Canopy's technical proposal consisted of a cover page, a cover letter, a table of contents, and 39 pages of past performance information, followed by 20 numbered pages responding to the management approach criteria, and a completed field level supervision exhibit.  See generally, AR Tab 4, Triple Canopy Management Approach Proposal; Supplemental AR Tabs 16 and 16b, Triple Canopy Relevant Past Performance Proposal.  The 39 pages of past performance information consisted of five past project forms (three for Triple Canopy, and two for a subcontractor) followed by corresponding CPARs, and one letter of commendation.  Triple Canopy also submitted a narrative concerning its teaming arrangement and its teaming agreement.  See generally, AR Tab 16 and 16b, Triple Canopy Past Performance Submission. 

In our view, DHS reasonably determined that Triple Canopy's proposal complied with the RFP page limits, except for the letter of commendation, which the agency properly disregarded.  Although Paragon argues that the RFP only permitted the agency to exclude from the page limit the completed past project forms and past performance questionnaires, and was required to count the pages of Triple Canopy's CPARs against the 20-page limit, we do not read the RFP to require that result.  Rather, DHS reasonably concluded that since it could retrieve CPARs itself, those pages should not be counted against the page limit.  Nor do we regard as unreasonable the agency's decision that the 20-page limit should be applied to the clearly-marked management approach section of the technical proposal, and thus the agency could (and did[8]) reasonably disregard the letter of commendation in Triple Canopy's proposal.  In short, we see no error in the application of the page limit. 

Management Approach Evaluation of Paragon

Paragon argues that its proposal was unreasonably downgraded under the field level supervision of PSOs element of the quality assurance subfactor.  In particular, Paragon argues that DHS should not have assessed a weakness against the proposal for providing an inadequately detailed plan for providing supervision of PSOs at posts in remote locations, primarily in the northern area of the contract area.  Paragon argues that the RFP only required that offerors complete the RFP's Field Level Supervision Exhibit, and therefore providing additional information was plainly optional (that is, merely to "enhance the Government's understanding of their proposal").  Protest at 4 (citing RFP at 408).  Paragon asserts that the evaluators would not have considered Paragon's field supervision of PSOs to be a weakness if they had reviewed the information provided in its proposal in the Field Level Supervision Exhibit, and had considered the area to be covered and the firm's established practices as the incumbent contractor.  Protester's Comments at 35-36. 

DHS argues that its evaluators reasonably evaluated Paragon's proposal as having both a strength in the firm's implementation of [DELETED] technology to allow its supervisors to be more effective, and a weakness because the proposal did not provide sufficient details on how supervision would be provided at remote posts.  AR Tab 8, TET Report, at 51.  DHS notes that many PSO posts are not at the [DELETED] locations, and that while [DELETED] was the more northern of Paragon's supervisor locations, it was nevertheless in the southern portion of the contract area.  The agency argues that assessing a weakness was reasonable because Paragon's proposal did not indicate how adequate supervision would be achieved at more remote posts in the northern portion of the contract area.  AR at 8.  To the extent that Paragon argues that the agency failed to credit the firm's use of an "[DELETED]" to oversee remote posts, DHS argues that the proposal did not provide that information, and also did not explain whether or how a supervisor with "[DELETED]" duties would cover northern posts.  Id. at 9.  Since Paragon's proposal located its supervisors in [DELETED], and lacked further explanation in this regard, DHS argues that the evaluators had valid concerns that Paragon's approach to providing supervision of posts in the northern portion of the contract area was inadequate.  Id. 

In reviewing a protest against an agency's evaluation of proposals, our Office will not reevaluate proposals, but instead will examine the record to determine whether the agency's judgment was reasonable and consistent with the stated evaluation criteria and applicable procurement statutes and regulations.  ManTech Advanced Sys. Int'l, Inc., B-413717, Dec. 16, 2016, 2016 CPD ¶ 370 at 3.  It is an offeror's obligation to submit an adequately written proposal for the agency to evaluate, and a protester's disagreement with that evaluation, without more, does not demonstrate that the evaluation was unreasonable.  Castle-Rose, Inc., B-407122, Nov. 13, 2012, 2012 CPD ¶ 317 at 2.  Our review of the record provides us no basis to question the evaluation of Paragon's proposal under the field level supervision element. 

The RFP required offerors to complete the field level supervision exhibit to clearly delineate and establish the minimum level of field/onsite supervision.  The RFP stated that the agency would "assess the level of oversight offered by the contractor," and expressly invited offerors to "at their discretion" provide a narrative explaining the rationale for the proposed staffing, labor mix, and geographic placement of the supervisors, as well as the processes, procedures, and methods to ensure supervision was "provided contract-wide."  RFP at 408-09.  

Our review confirms that the DHS evaluation of Paragon under the field level supervision element was reasonable.  Paragon's proposal described the firm's field supervision as a [DELETED]-person staff located in [DELETED], but did not indicate whether or how those supervisors would oversee distant posts.  AR Tab 5, Paragon Management Approach Proposal, at 8.  Instead, Paragon generally stated that the supervisors would have [DELETED] schedules to provide supervisory coverage during [DELETED] shifts on weekdays and during "various shifts" on weekends, and further, that its supervisors would be "on call 24x7."  Id.  While Paragon also stated that one [DELETED] supervisor had "additional [DELETED] supervisory duties," the proposal did not explain or provide meaningful detail about what was being proposed.  Id.  The field level supervision exhibit provided essentially the same information.  Id., attach. 1, at 1 (field level supervision exhibit).  

Next, Paragon argues that under the staffing plan element of the staffing subfactor, the evaluators improperly assigned a weakness because the proposed approach to staffing emergency security services lacked important details.  Protest at 8-9.  Paragon argues that its proposal showed that it had an ample staff of PSOs, and that it proposed a further [DELETED] percent reserve force, which would be more than adequate to provide the maximum of 16,500 hours of emergency security services.  Id.  Paragon also argues that the weakness was unreasonable in light of DHS's recognition of the firm's excellent staffing on the incumbent contract.  Id. at 9-10.  DHS responds that Paragon's proposal did not provide an approach to utilizing its staffing resources to meet emergency requirements, such as explaining from where the personnel would be drawn, or addressing the practical aspects of deploying them in emergency circumstances.  AR at 13-14.  DHS argues that Paragon failed to submit a well-written proposal responding to the RFP requirements, so the evaluation of a weakness under the staffing subfactor was reasonable.  Id. at 14-15. 

An offeror is responsible for submitting a well-written proposal with adequately detailed information that allows for meaningful review by the procuring agency.  Abacus Tech. Corp.; SMS Data Prods. Group, Inc., B-413421 et al., Oct. 28, 2016, 2016 CPD ¶ 317 at 19.  The evaluation by DHS here reasonably concluded that Paragon's proposal should be assessed a weakness for failing to provide any meaningful detail about how the firm would ensure adequate staffing for emergency security services requirements.  The record shows that Paragon described its staffing level as sufficient to ensure "full staffing."  AR Tab 5, Paragon Management Approach Proposal, at 18.  It then stated that its staffing level included "the maintenance of a [DELETED]% reserve force," and that the added capacity provided "a strong foundation for staffing both Basic PSO Service hours and Temporary Additional Services (TAS) hours."  Id. at 19.  Although the proposal thus addressed basic and TAS requirements, with respect to emergency security services, the substance of Paragon's proposal stated simply that the firm recognized the challenges of staffing emergency security requirements, and that it would "have [DELETED] PSOs to support those needs as well."  Id.  Again, Paragon's proposal did not provide any meaningful detail.  As a result, Paragon has not provided a basis for our Office to question the reasonableness of the evaluation of a weakness in this regard.[9] 

Past Performance Evaluation of Triple Canopy

Paragon challenges the evaluation of Triple Canopy under the relevant past performance factor on several grounds.  We address the more substantive challenges.  First, Paragon argues that Triple Canopy unreasonably received past performance credit for contracts that are unlike the RFP here:  a much smaller contract for services in Oklahoma; a contract for services at Camp Leatherneck, in Afghanistan; and a contract under which performance began only recently.  Protester's Comments at 13-14.  Next, Paragon argues that DHS improperly credited Triple Canopy with past performance under a contract performed by a different entity--a joint venture in which Triple Canopy was a participant.  Id. at 16-17.  Finally, Paragon argues that published reports and litigation show that Triple Canopy has been accused of falsifying records, and that the firm's listing in the System for Award Management (also known as sam.gov) database indicates that the firm has an unsatisfied debt to the government.  Protest at 20-21.  As a result of these alleged errors, Paragon argues that Triple Canopy's past performance could not reasonably be given the highest adjectival rating of highly acceptable.  Id. at 21. 

DHS counters that its evaluation of Triple Canopy's past performance was reasonable.  The agency argues that the RFP expressly provided for considering past performance in the aggregate--that is, by combining separate past performance references together.  Using this approach, the agency concluded that Triple Canopy's past performance involved projects that exceeded the size and scope of the RFP here.  While the agency acknowledges that the record erroneously refers to the Camp Leatherneck contract as being at Rock Island, Illinois, it explains that the evaluators nevertheless recognized that this contract involved performance overseas, and reasonably concluded that the contract was sufficiently relevant to include it in Triple Canopy's evaluation.  Regarding Paragon's argument that the agency overlooked negative past performance information about Triple Canopy, the agency argues that the information related to incidents occurring more than 3 years earlier, making it not relevant under the standard identified in the RFP.  

An agency's evaluation of past performance, including its consideration of the relevance, scope, and significance of an offeror's performance history, is a matter of agency discretion which we will not disturb unless the agency's assessments are unreasonable or inconsistent with the solicitation criteria.  SIMMEC Training Sols., B-406819, Aug. 20, 2012, 2012 CPD ¶ 238 at 4.  Where a protester challenges an agency's past performance evaluation, we will review the evaluation to determine if it was reasonable and consistent with the solicitation's evaluation criteria and procurement statutes and regulations, and to ensure that the agency's rationale is adequately documented.  DynCorp Int'l LLC, B-406523.2, B-406523.3, Dec. 16, 2013, 2014 CPD ¶ 7 at 6.[10]  Notwithstanding Paragon's challenges, the record supports the reasonableness of the evaluation of Triple Canopy's past performance.  Although Paragon points out differences between Triple Canopy's past performance and the requirements of the RFP (such as performance of some contracts overseas, smaller scope for some, and a short history of performance in one instance), we find reasonable DHS's assessment of the record as a whole as showing a positive performance record on relevant contracts by Triple Canopy and its subcontractor. 

Second, Paragon argues that DHS improperly considered past performance for Triple Canopy under a contract held by a joint venture--where Triple Canopy was the 70 percent majority participant--without ascertaining that the assets of the joint venture would be used to perform the requirements of this RFP.  This argument lacks a valid legal basis.  Where an offeror relies on past performance of the firm as a participant in a joint venture, the agency may consider the performance on the basis that the offeror had a sufficient role in the joint venture to make the performance relevant.  Ashland Sales & Serv. Co., B-408010.6, B-408010.7, Mar. 28, 2014, 2014 CPD ¶ 113 at 13.  Absent specific facts calling into question the extent of the offeror's role in the joint venture, our role in reviewing protests does not require an agency to show that it has specifically investigated the performance of the offeror under the joint venture to ascertain the extent of joint venture resources to be employed in the performance of the contract at issue.[11] 

Paragon also challenges the past performance evaluation of Triple Canopy on the basis that published reports and litigation indicate that the firm has submitted false information and claims to a federal agency, and has an unpaid debt to the federal government.  Protest at 20-21.  Paragon argues that DHS should have considered these circumstances, and assigned a lower past performance rating for Triple Canopy.  Id. at 20.  DHS responds that the litigation and reports identified by Paragon fall outside the 3-year range for considering past performance set forth in the RFP.  AR at 4-6.  Similarly, the agency argues that Paragon mischaracterizes the delinquent debt reflected in Triple Canopy's sam.gov record.  DHS points out that the delinquent debt indicator expressly does not preclude award of a contract; rather, it informs agency officials not to pay such a contractor using a government purchase card.  AR at 6 (citing Federal Acquisition Regulation § 32.1108). 

We agree that the agency was not required to consider these issues in its past performance evaluation.  DHS properly did not consider allegations of poor performance by Triple Canopy that occurred more than 3 years before this procurement, and the delinquent debt flag in sam.gov did not provide evidence of performance problems.  Accordingly, we deny Paragon's challenges to the evaluation of Triple Canopy's past performance.[12] 

Best-Value Tradeoff

Finally, Paragon argues that the SSA failed to exercise independent judgment, document the tradeoff rationale, or make a reasonable selection decision.  Protest at 22-23; Protester's Comments at 38-41.  Paragon argues that the SSA's decision improperly copied elements of the technical evaluation verbatim, and argues that the SSA should have relied on personal knowledge, gained through overseeing Paragon's incumbent contract, to refute the evaluation of Paragon's proposal as inferior to Triple Canopy's under the management approach factor.  Id. at 38-39.  DHS responds that the record demonstrates appropriate consideration of the evaluation record by the SSA, and a properly-documented and reasonable exercise of judgment by the SSA in selecting Triple Canopy's proposal for award. 

The contemporaneous record reflects that the contracting officer, contract specialist, and the SSA prepared a pre-award business memorandum, which bears the same signature date as the SSA's source selection decision document.  The pre-award memorandum analyzed the conclusions of the evaluators, compared the evaluation of Paragon and Triple Canopy under each subfactor, and expressed judgments about the reasons and extent to which one offeror's proposal was more advantageous than the other.  For example, the memorandum explained that under the relevant past performance factor, Paragon was slightly superior to Triple Canopy under the experience subfactor; the firms were essentially equal under the quality subfactor; and that overall Paragon's past performance would provide a slightly lower level of performance risk.  AR Tab 9, Pre-Award Business Memorandum at 17-19.  On the other hand, under the management approach factor the SSA identified advantages for Triple Canopy under each subfactor.  Id. at 19-23.  After considering the $1 million evaluated price advantage for Paragon, the memorandum referred to the source selection decision for the tradeoff rationale.  Id. at 57. 

While the SSA's source selection decision document contains much of the same information as the pre-award business memorandum, the document also explains that the SSA's views agreed with the memorandum.  AR Tab 10, Source Selection Decision, at 9-11.  The tradeoff section of the document then explained the SSA's view that although Paragon had a slight advantage in the more-important relevant past performance factor, Triple Canopy's advantages under the less-important management approach factor nevertheless made its proposal superior under the non-price factors.  The SSA's document then explained that Triple Canopy's non-price advantage was sufficient to justify paying its price; that is, that Triple Canopy's proposal had advantages worth the additional $1 million over Paragon's evaluated price.  Id. at 11-12.  Accordingly, the SSA selected Triple Canopy's proposal for award. 

In a best-value procurement, it is the function of the SSA to perform a tradeoff between price and non-price factors, to determine whether one proposal's superiority under the non-price factor is worth a higher price.  Even where, as here, price is stated to be of less importance than the non-price factors, an agency must meaningfully consider cost or price to the government in making its source selection decision.  e-LYNXX Corp., B-292761, Dec. 3, 2003, 2003 CPD ¶ 219 at 7.  Before an agency can select a higher-priced proposal that has been rated technically superior to a lower-priced but acceptable one, the award decision must be supported by a rational explanation of why the higher-rated proposal is, in fact, superior, and explaining why its technical superiority warrants paying a price premium.  J.R. Conkey & Assocs., Inc., B-406024.4, Aug. 22, 2012, 2012 CPD ¶ 241 at 9. 

The record reflects that the SSA recognized the advantages of both proposals and the relative weights of the factors.  The SSA explained the basis for determining that Paragon's advantages under the past performance factor and price were overcome by the proposal's more significant advantages under the management approach factor.  In short, the source selection decision is reasonable, consistent with the evaluation criteria, and reflects independent judgment by the SSA.  Accordingly, we have no basis to sustain Paragon's challenge to the award to Triple Canopy. 

The protest is denied. 

Susan A. Poling
General Counsel

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