Computech, Inc.

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.

Decision

Matter of: Computech, Inc.

File: B-409195.2; B-409195.3

Date: July 29, 2014

DIGEST

1. Protest that the agency failed to evaluate the protester’s technical proposal and past performance in accordance with the terms of the solicitation is denied where the record shows the evaluation was reasonably related to the stated evaluation criteria.

2. Agency’s selection of a higher-rated, higher-priced proposal for award is unobjectionable where the agency’s tradeoff decision was reasonable, and where the agency adequately documented the basis for the award.

Computech, Inc., of Bethesda, Maryland, protests the award of a contract to Power Auctions LLC, by the Federal Communications Commission (FCC) under request for proposals (RFP) No. FCC13R0006 for auction bidding software. Computech argues that the agency’s evaluation of its proposal and subsequent award decision were improper.

We deny the protest.

BACKGROUND

The FCC uses competitive bidding to assign spectrum licenses when it accepts mutually-exclusive applications for any initial license or construction permit. RFP, Statement of Work (SOW), at 418.[1] The agency states that the current auction system, the Integrated Spectrum Auction System (ISAS), is at the end of its lifecycle and has limitations for use with advanced auction design formats.[2] Id. The FCC states that it is aggressively pursuing an effort to modernize its auction capabilities to meet its current and anticipated auction process needs and to incorporate design and technology advances.

 

The RFP was issued on August 12, 2013, and contemplated the award of a hybrid fixed-price and time-and-materials (T&M) contract, with a 1-year base period and four 1-year options. Award was to be made on a best-value basis, considering three evaluation factors, which were listed in descending order of importance: technical/management capability, past performance and price/cost.[3] RFP at 555, 559.[4] The technical/management capability factor had five subfactors which were listed in descending order of importance, with the last two subfactors being of equal importance: (1) software and technical support capability, (2) implementation and integration capability, (3) software delivery method, (4) key personnel and staffing, and (5) corporate electronic auction experience. Id. FCC initially awarded the contract to Power Auctions on September 30.[5] Contracting Officer’s Statement (COS) at 4.

 

Computech filed a protest with our Office on October 29, challenging the award to Power Auctions (B-409195). During the course of reviewing documents associated with the protest, the agency found errors in the technical and price evaluations, and also concluded that the award decision was not supported by an adequate basis or sufficient documentation. COS at 4. The agency took corrective action to address these issues, and our Office dismissed the protest as academic. The agency terminated the contract to Power Auctions and reevaluated the offerors’ proposals. Id. at 5; AR, Tab 15, FCC’s Request for Dismissal of B-409195.

 

Of relevance to this protest, the agency issued RFP amendment No. 3, and requested revised proposals. The agency received and evaluated revised proposals from Computech and Power Auctions. The source selection advisory council (SSAC) assigned the following ratings to Power Auction’s and Computech’s revised proposals:

 

	POWER AUCTIONS	COMPUTECH
TECHNICAL/MANAGEMENT CAPABILITY
Software and Technical Support Capability	Good	Good
Implementation and Integration Capability	Good	Fair
Software Delivery Method	Good	Good
Key Personnel and Staffing	Superior	Good
Corporate Electronic Auction Experience	Superior	Good
PAST PERFORMANCE	Superior	Good
PRICE	$16,422,223	$14,063,644.28

AR, Tab 23, Source Selection Memorandum, at 582.

 

Based on the evaluation, the source selection authority (SSA) concluded that Power Auction’s proposal provided the best value to the government. Specifically, the SSA concluded that the strengths of Power Auctions’ proposal under the non‑price factors were more likely to “promote the FCC’s auctions program and management objectives,” as compared to the advantages offered by Computech. Id. at 594. As relevant here, the agency found that Power Auctions’ proposed personnel provided valuable economist support and auction development expertise of a broader nature than that offered by Computech. Id. The FCC noted as well that Power Auctions’ demonstrated ability to deliver more advanced and novel auctions that had not been tried elsewhere was critical to the agency’s effort. Id. The SSA concluded that “the value to the FCC of the attributes of Power Auctions’ superior non-price proposal outweigh[ed] the lower evaluated price offered by Computech.” Id. In contrast, the SSA noted that Computech’s proposal offered “fewer favorable non-price attributes and some not insignificant drawbacks.” Id. On April 3. the agency notified Computech of the award to Power Auctions. Protest at 2. This protest to our Office followed.

 

DISCUSSION

 

Computech argues that FCC’s evaluation of its proposal under several of the non-price factors and subfactors was improper. The protester argues as well that the agency’s award decision failed to meaningfully consider the protester’s lower proposed price. Although our decision does not specifically address all of Computech’s arguments, we have fully considered each of them and find that none provides a basis to sustain the protest.

 

Technical/Management Capability Factor

 

Computech challenges its evaluation under three of the four subfactors under the technical/management capability factor. We will address each of the subfactors in turn.

 

The evaluation of an offeror’s proposal is a matter within the agency’s discretion. IPlus, Inc., B-298020, B-298020.2, June 5, 2006, 2006 CPD ¶ 90 at 7, 13. A protester’s disagreement with the agency’s evaluation is not sufficient to render the evaluation unreasonable. Ben-Mar Enters., Inc., B-295781, Apr, 2005, 2005 CPD ¶ 68 at 7. In reviewing protests of an agency’s evaluation of offerors’ technical proposals, our Office does not reevaluate proposals; rather, we review the evaluation to determine if it was reasonable, consistent with the solicitation’s evaluation scheme, as well as procurement statutes and regulations, and adequately documented. Wackenhut Servs., Inc., B-400240, B-400240.2, Sept. 10, 2008, 2008 CPD ¶ 184 at 6. It is an offeror’s responsibility to submit an adequately written proposal that establishes its capability and the merits of its proposed technical approach in accordance with the evaluation terms of the solicitation. Carolina Satellite Networks, LLC; Nexagen Networks, Inc. B-405558 et al., Nov. 22, 2011, 2011 CPD ¶ 257 at 4.

 

Implementation and Integration Capability Subfactor

 

Computech argues that FCC improperly assigned its proposal a “fair” rating under the implementation and integration capability subfactor because that the agency “impermissibly imposed several unstated evaluation criteria” and otherwise unreasonably downgraded its proposal. Protester’s Comments (June 2, 2014) at 5. The protester contests three of the four weaknesses that the TET assigned to Computech under this subfactor.

 

First, Computech argues that the agency penalized its proposal because it contained technical “jargon.” See AR, Tab 23a, TET Report, at 607. The protester contends that the solicitation did not prohibit the use of jargon to describe internal and external software and methodologies, and that the agency unreasonably assigned it a weakness in this area. Protest at 5-6; Protester’s Comments (June 2, 2014) at 7.

 

FCC responds that it did not penalize Computech’s proposal because it contained jargon, per se. COS at 17-18. Instead, as reflected in the agency’s evaluation, FCC found that the protester’s Integration and Implementation Plan relied on “branded internal and external software and methodologies,” which showed an intent to resolve problems through “pre-determined ‘processes’ rather than being handled directly and efficiently.” AR, Tab 23a, TET Report, at 605. The agency cited the branded software and methodologies, such as [DELETED] as shorthanded jargon, which did not provide a “straightforward discussion of the relevant issues and how [the protester] would approach them.” Id. As the contracting officer explains, such “[a] complicated predefined process often cuts off discussions and problem definition and leads to results determined by the contractor’s process, rather than aiming at and achieving the best results directly.” COS at 17. The agency also expressed concern that Computech’s reliance on technical jargon would pose difficulties in its interactions with FCC personnel, many of whom “need to communicate in more standard language, and receive responses in terms that are comprehensible.” AR, Tab 23a, TET Report, at 605.

 

We agree with FCC that this weakness was reasonably related to the evaluation criteria for this subfactor, which required the offeror to, among other things, address “how the software will promote and be used in a flexible and extendable environment capable of interpreting changing auction business rules, ongoing configurations, and modifications to meet the Commission’s objectives.” RFP at 556. The record shows that the agency was concerned that the use of technical jargon in Computech’s proposal, and reliance on its branded information technology processes as shorthand for its technical approach, would adversely affect the protester’s ability to communicate with agency staff and adapt its process for the quickest achievement of the agency’s requirements. See AR, Tab 23a, TET Report, at 605. We therefore find no merit to this argument.

 

Next, Computech argues that FCC unreasonably assessed a weakness for failing to propose an “out of the box” software solution. See AR, Tab 23a, TET Report, at 605. The protester argues that the solicitation “explicitly” required out of the box software, that is, an existing, working solution. Protest at 5. The protester further contends that its [DELETED] software was an out of the box solution, and that the agency failed to evaluate whether that software met the solicitation requirements.

 

FCC responds that the RFP did not require an “out of the box” solution. COS at 13. Rather, the RFP stated that software and other solutions proposed were required to be “designed to satisfy the minimum functionality,” but also “shall be configured or modified to meet the Commission’s needs for various types of auctions, set forth in the SOW” and provide “[f]lexibility for modifications to support other novel auction designs.” RFP, SOW §§ 2.1, at 418 (Purpose of Procurement and 2.2 (Objectives)). The agency states that its criticism of Computech’s proposal was that it would deploy an unmodified “out of the box” solution first, and then develop and implement the required modifications, and determine how to deploy that “as-modified” software after the fact--rather than assessing the requirement, modifying the software and then deploying the modified software as part of the initial deployment. AR, Tab 23a, TET Report, at 605.

 

We find that the agency reasonably assigned Computech a weakness in this area in accordance with the evaluation criteria, which stated that FCC would consider the “appropriateness of all proposed methodologies” regarding how an offeror would “perform the implementation and integration services.” RFP § 7.1.3, at 556. We therefore find no merit to this argument.

 

Finally, Computech contends that FCC unfairly evaluated its proposal under this subfactor by assigning it a weakness to its implementation process because the protester made “too many claims without setting realistic expectations of what limitations the FCC can expect in the implementation process,” noting that “[w]e have experience with Computech doing this in other contexts.” AR, Tab 23a, TET Report, at 605. The protester contends that the agency’s “rejection of Computech’s approach--and insistence that Computech address ‘limitations’--represents an unstated evaluation criterion.” Protester’s Comments (June 2, 2014) at 6-7.

 

FCC responds that the RFP clearly advised offerors that the agency would consider not only the offeror’s plan to accomplish the effort, but also whether the plan was “practical” and “include[d] recognition of potential difficulties in performance.” RFP § 7.1.3(B), at 556. In light of the solicitation’s requirement that an offeror’s implementation plan address potential performance difficulties, we think that the agency was reasonably concerned that the awardee did not address the limitations of its proposed plan.

 

Key Personnel and Staffing

 

The protester received a rating of “good” under the key personnel and staffing subfactor and received five weaknesses. Computech challenges three of these weaknesses, arguing that the agency applied unstated unevaluation criteria and failed to give examples to support the weaknesses.

 

First, Computech contends that the agency applied an unstated evaluation criterion by assigning its proposal a weakness for failing to propose “new blood,” as part of its staffing plan. Protester’s Comments (June 2, 2014) at 9. Computech’s plan was to staff the effort with employees already working for the FCC under the agency’s large Programming Services BPA. AR, Tab 46b, Computech Proposal, Vol. II, at 1163-64. The agency notes that while this staffing plan “conveys a certain strength,” it goes onto state that “the absence of ‘new blood’ may result in not having new perspectives to see improved ways of performing auctions.” AR, Tab 23a, TET Report, at 607.

 

FCC explains that the principal objective of this procurement is “to replace the functionality of the current auction bidding system . . . with a more flexible software solution that shall accommodate newer and more complicated auction designs and that shall allow rapid auction design changes.” COS at 20; RFP, SOW § 2.2, at 419. FCC contends that because the RFP’s goal was to obtain a newer and more flexible approach to auction design--as compared to the solution provided by the protester under the incumbent contract--it was reasonable for the agency to assess whether an offeror proposed staff with the capability to provide new and creative solutions. COS at 20. In this regard, the agency notes that while Computech’s proposal states that “the two key personnel named here are backed by an exceptionally deep bench of staff experienced with [DELETED] [software] and with FCC auction systems,” the majority of the personnel proposed have worked mainly with the FCC auctions systems, not the protester’s [DELETED] software. AR, Tab 46b, Computech Technical Proposal, Vol. II, at 1164; COS at 20 n.17. On this record, we have no reason to question the agency’s evaluation in this regard.

 

Next, the protester argues that the agency unreasonably found that an employee, identified as a key person “had trouble at times effectively communicating with other FCC contractors and FCC staff with respect to Computech’s progress on software development projects.” AR, Tab 23a, TET Report, at 607. The protester argues that this evaluation was unreasonable, and that the agency failed to document the basis for the weakness. Protester’s Comments (June 2, 2014) at 9.

 

FCC notes that the evaluation criteria for this subfactor specifically advised offerors that that the agency could consider “information from any other sources available to the Government” in evaluating proposed personnel. RFP § 7.1.3, at 557. In this instance, the contracting officer explains that the FCC had first-hand information regarding the capabilities of the proposed key person cited in the evaluation, and that some of the evaluators had day-to-day experience with this individual’s work for various FCC requirements. COS at 20-21. The agency explains that the individual worked as an information technology architect on a simulator to test incentive auction designs, which was an effort that required up-front design inquiries from which an architect would gain working knowledge. Id. The agency states that this individual did not make the requisite inquires to perform the work as required, and that as a consequence, the work was “bogged down,” and was eventually transferred to Power Auctions to avoid further delay. Id. at 21. We conclude that the agency reasonably evaluated the protester’s proposed key personnel based on information personally known to the evaluators.

 

Finally, the agency assessed a weakness because Computech’s proposal “seems to equate auction design expertise with computational and data skills” and “suggests a lack of recognition that economics/game theory is an essential component of auction design.” AR, Tab 23a, TET Report, at 607. The agency concluded that the protester did not propose a team with the requisite expertise in these areas. Id. Computech argues that the agency imposed an unstated evaluation criterion because the RFP did not specifically require offerors to propose economics/game theory experts. Protester’s Comments (June 2, 2014) at 8. The protester also contends that, even if offerors were required to demonstrate that their staff had experience with economics/game theory, the protester “employs mathematicians with proven knowledge of advanced auction design” and has “worked closely with numerous auction theorists to deliver auctions for multiple spectrum regulators.” AR, Tab 46b, Computech Proposal, Vol. II, Technical Proposal, at 1124.

 

FCC notes that the contractor is expected to provide “professional services [ ], including consulting and training services for the initial implementation and potential future configurations or modifications of the software to provide for more advanced auction designs.” RFP, SOW § 2.1, at 418. The agency contends that auction design is the underlying requirement for the solicitation, and that this procurement is being conducted because “[t]he current auction system is at the end of its lifecycle and has limitations for use with advanced auction design formats.” RFP, SOW § 1, at 418; COS at 18. As discussed above, however, the protester’s proposal stated that it employs mathematicians and has worked with auction theorists. AR, Tab 46b, Computech Proposal, Vol. II, Technical Proposal, at 1124.

 

Even if we were to conclude here that FCC’s evaluation failed to reasonably consider whether the protester had proposed staff to meet the agency’s understanding of the requirement, we conclude that there could not be any possible prejudice to the protester. Competitive prejudice is an essential element of a viable protest, and where the protester fails to demonstrate prejudice, our Office will not sustain a protest. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD ¶ 54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577 (Fed. Cir. 1996). Here, even if Computech prevailed on its challenge to the FCC’s evaluation with regard to this issue, there is no basis to conclude that this alleged error would have meaningfully increased the protester’s chances for award. As stated above, the agency assessed five weaknesses to the protester’s proposal under this subfactor, three of which were challenged in the protest. In contrast, the awardee received a superior rating for this subfactor, as well as numerous other strengths under other evaluation factors and subfactors that were the basis for the award decision. The record does not show that removal of the weakness here creates a reasonable possibility that, but for the agency’s actions, Computech would have been in line for award ahead of Power Actions.

 

Corporate Electronic Auction Experience

 

Under the corporate electronic auction experience subfactor, Computech received a rating of “good,” and was assigned two weaknesses. The protester challenged one of these weaknesses in its protest. Protest at 8. The agency responded to this issue in its agency report, COS at 21‑23, and Computech did not address the agency’s arguments in its comments. As a result, we conclude that Computech has abandoned this protest ground and we will not consider it further. IntelliDyne, LLC, B-409107 et al., Jan. 16, 2014, 2014 CPD ¶ 34 at 3 n.3. To the extent that Computech argues that it raised a different aspect of this protest issue in its supplemental protest (Supp. Protest at 12-13), we find this issue is untimely as the supplemental protest issue was filed more than 10 days after the protester knew or should have known about the basis of protest. 4 C.F.R. § 21.2(a)(2) (2014) (protests of other than alleged solicitation improprieties shall be filed not later than 10 days after the basis of protest is known or should have been known).

 

Past Performance

 

FCC assigned Computech a rating of good under the past performance evaluation factor, based on five strengths and six weaknesses for the protester’s performance record. The protester contests one of the weaknesses, which concerns the agency finding that Computech had a history of missing internal FCC timelines, and that the protester’s performance record should be discounted because it benefitted from the lower risk of performing under T&M contracts. The protester contends that internal agency deadlines are not contractual requirements, that the FCC failed to document these alleged failures, and that there is no basis to criticize its work based on the type of contract performed.[6] Protester’s Comments (June 2, 2014) at 10.

An agency’s evaluation of past performance, like the evaluation of other aspects of an offeror’s proposal, will not be disturbed unless the evaluation was unreasonable or inconsistent with the terms of the solicitation or applicable statutes and regulations. See Jacobs COGEMA, LLC, B-290125.2, B-290125.3, Dec. 18, 2002, 2003 CPD ¶ 16 at 23. The agency contends that its consideration of Computech’s performance in meeting internal FCC timelines was appropriate under this factor because the evaluation stated that the agency would consider, among other things, “the [o]fferor’s adherence to contract schedules, including the administrative aspects of performance.” RFP at 558.

The agency states that Computech’s history of missing internal FCC deadlines “is particularly true for FCC projects where new and novel auction designs are tested.” AR, Tab 23a, TET Report, at 610. The agency’s evaluation cited an example of Computech’s past actions in this regard, which was based on the knowledge of the agency evaluators regarding the planned FCC incentive auctions. The agency stated that while Computech created key inputs into the auction platform, a few elements of the simulation platform that it developed had to be transferred to another contractor so that the work could be timely completed. Id.

Our Office has held that an evaluator’s personal knowledge of an offeror may be properly considered in a past performance evaluation. Omega World Travel, Inc., B-271262.2, July 25, 1996, 96-2 CPD ¶ 44 at 4. We therefore find that the agency evaluators reasonably considered their personal knowledge of the history of Computech’s performance under FCC task orders.

With regard to the agency’s related concern regarding the protester’s performance of T&M contracts, the contracting officer explains that Computech had a history of failing to meet deadlines on T&M task orders relating to the incentive auction, and as a result, schedules had to be adjusted. COS at 24-25. The agency states that these failures have “impeded the orderly progress of work on the task orders . . . and have led to . . . additional costs.” Id. The TET’s concern regarding the protester’s performance on T&M contracts was based on the difference between that form of contract, wherein the contractor is reimbursed by the government for the work it actually performs, as compared to a fixed-price contract, wherein the contractor is paid a fixed amount and therefore incurs the risk of cost overruns. Id. at 25-26. The contracting officer explains that because the solicitation involves both fixed-price and T&M contracts, the agency was concerned that the protester’s performance record did not clearly reflect the ability to meet deadlines under the requirements of a fixed-price contract, which impose more risk on the contractor. We think that the agency was within its discretion to consider the type of work performed by the protester, and therefore find no basis to sustain the protest.

Individual/Consensus Ratings

The protester argues that the individual evaluator rating sheets concerning both Computech and Power Auctions were not consistent with the consensus ratings that were assigned to both of the proposals.[7] Supp. Protest at 13, 15. Regarding Power Auctions’ proposal, the protester notes that several individual evaluators assessed Power Auctions a rating of “fair” under at least two subfactors, yet the agency assigned a consensus rating of “good” and “superior.” Supp. Protest at 14. The protester also notes that although no individual evaluator assigned its proposal a rating lower than “good” under subfactor B, Implementation and Integration Capability, the agency assigned Computech a consensus rating of “fair.” Id. at 15.

We recognize that it is not unusual for individual evaluator ratings to differ from one another, or from the consensus ratings eventually assigned.; Systems Research and Applications Corp.; Booz Allen Hamilton, Inc., B-299818 et al., Sept. 6, 2007, 2008 CPD ¶ 28 at 18. Indeed, the reconciling of such differences among evaluators’ viewpoints is the ultimate purpose of a consensus evaluation. J5 Sys., Inc., B-406800, Aug. 31, 2012, 2012 CPD ¶ 252 at 13; Hi-Tec Sys., Inc., B-402590, B-402590.2, June 7, 2010, 2010 CPD ¶ 156 at 5. The overriding concern for our purposes is not whether an agency’s final evaluation conclusions are consistent with earlier evaluation conclusions (individual or group), but whether they are reasonable and consistent with the stated evaluation criteria, and reasonably reflect the relative merits of the proposals. See, e.g., URS Fed. Tech. Servs., Inc., B‑405922.2, B-405922.3, May 9, 2012, 2012 CPD ¶ 155 at 9 (a consensus rating need not be the same as the rating initially assigned by the individual evaluators).

We find no basis to find that the consensus evaluations were unreasonable, simply because they differ from the individual evaluators’ preliminary findings. As noted above, there is no requirement that agencies document why evaluation judgments changed during the course of the evaluation process. Rather, agencies are required to adequately document the final evaluation conclusions on which their source selection decision was based, and we review the record to determine the rationality of the final evaluation conclusions. SRA Int’l, Inc., B-407709.5, B‑407709.6, Dec. 3, 2013, 2013 CPD ¶ 281 at 10-11. The protester here does not challenge the reasonableness of the consensus evaluations, apart from the apparent revision to the evaluator’s initial adjectival rating. For this reason, we find no basis to sustain the protest.

Cost/Technical Tradeoff

Finally, Computech protests the FCC’s award decision. Specifically, the protester contends that the agency failed to meaningfully consider price as part of its evaluation and that Power Auctions’ proposal does not represent the best value because “Computech received an adjectival rating of ‘Good’ in all but one technical [sub]factor.” Protest at 10. For this reason, the protester argues that “the FCC cannot justify spending more than $2.3 million additional dollars--a price premium of almost 17% percent over Computech’s [total evaluated price].” Id.

As discussed above, the RFP stated that price was the least important of the three evaluation factors. FCC contends that its tradeoff analysis specifically considered “the evaluated price premium of $2,358,558.72” but found that the numerous benefits associated with Power Auctions’ higher-rated proposal were worth more than the evaluated price premium even without considering some of the price risks associated with Computech’s proposal. AR, Tab 23, Source Selection Memorandum, at 594; COS at 29.

We think that the FCC’s award decision reasonably explains the basis for selecting Power Auction’s higher-rated, higher-priced, proposal. In this regard, the agency found that Power Auctions’ proposal offers meaningful benefits to the FCC, such as the flexibility of its software to support novel auction designs; the availability of in-house economist support and broader auction software development expertise; broader and deeper experience with regard to the type of auctions that are likely to be conducted by the FCC; and a record of past performance that provides the FCC with a high level of confidence of success for the procurement. See AR, Tab 23, Source Selection Memorandum, at 594. The protester does not specifically challenge any of the agency’s findings concerning the benefits of the awardee’s proposal. To the extent the protester simply disagrees with the agency’s judgment about the value of the awardee’s higher-rated proposal, we find no basis to sustain the protest.

The protest is denied.

Susan A. Poling
General Counsel