Government Telecommunications, 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: Government Telecommunications, Inc.

File: B-299542.2

Date: June 21, 2007

DIGEST

Protest challenging contracting agency's evaluation of protester's proposal and exclusion of proposal from competitive range is denied where agency's evaluation and competitive range determination were reasonable and in accordance with the solicitation evaluation criteria.

Government Telecommunications, Inc. (GTI) protests the exclusion of its proposal from the competitive range under request for proposals (RFP) No. SSA-RFP-06-1031, issued by the Social Security Administration (SSA) for the agency's telephone systems replacement project (TSRP). GTI contends that the agency's evaluation of its proposal as well as the subsequent determination to exclude its proposal from the competitive range were improper.

We deny the protest.

BACKGROUND

SSA is a federal government agency staffed by over 65,000 employees. In addition to the agency's headquarters, SSA has a field organization consisting of 10 regional offices, 6 program service centers, and more than 1,500 field offices to provide services at the local level. The TSRP represents SSA's replacement of its current telephone systems with an enterprise voice over internet protocol (VoIP) telephone solution, to support the agency's current and future requirements and the transition to internet protocol (IP) telephone systems. In general terms, the statement of work here required the contractor to provide all hardware, software, and services necessary to engineer, install, and integrate the TSRP solutions with SSA's government-furnished equipment and to remove the legacy telephone systems. Statement of Work (SOW) sect. C.1.

The RFP, issued on August 10, 2006, contemplated the award of a fixed-price, indefinite-delivery/indefinite-quantity (ID/IQ) contract for a base year together with nine 1-year options. The RFP identified five evaluation factors: technical approach; past performance; key personnel qualifications; management approach; and price. The solicitation stated that the four technical/non-price factors were listed in descending order of importance and, when combined, were more important than price. Award was to be made to the responsible offeror whose proposal was determined to be the –best value— to the government all factors considered. RFP sect. M.1.

The RFP contained detailed instructions regarding the submission of proposals.[1] Specifically, the technical approach submission was required to demonstrate the offeror's understanding of the solicitation's technical requirements and thoroughly describe the TSRP solution being proposed; the technical approach narrative was also to be sufficiently specific, detailed, and complete so as to clearly and fully demonstrate the techniques and procedures the offeror would employ to meet all SOW requirements. Further, the RFP required an offeror's technical approach to include the operational, performance, and functional details of specific system capability(s) and/or features as explicitly stated in the SOW. Offerors merely proposing to provide supplies and services in accordance with the solicitation would not be eligible for award. RFP sections L.2, L.2.1.

The RFP informed offerors that SSA intended to evaluate proposals and award a contract without conducting discussions; however, the agency also reserved the right to conduct discussions if later determined by the contracting officer to be necessary. RFP sections L.1, L.2.6.

Four offerors, including GTI, submitted proposals by the November 9 closing date. An agency technical evaluation committee (TEC) evaluated offerors' proposals as to the technical factors using an adjectival rating system that was set forth in the RFP: excellent; good; acceptable; marginal; and unsatisfactory. The TEC's evaluation ratings of offerors' proposals were as follows:

Factor	Offeror A	Offeror B	Offeror C	GTI
Technical Approach	Marginal	Good	Marginal	Unsatisfactory
Past Performance	Good	Good	Good	Acceptable
Key Personnel Qualifications	Acceptable	Acceptable	Acceptable	Acceptable
Management Approach	Marginal	Acceptable	Marginal	Marginal
Technical Overall	Marginal	Good	Marginal	Unsatisfactory
Evaluated Price	$297,094,538	$285,651,653	$296,494,909	$423,313,419

AR, Tab 6, TEC Report, at 45; Tab 7, Competitive Range Determination, at 16, 23.

The TEC identified numerous weaknesses and deficiencies in GTI's proposal as to technical approach. Specifically, the evaluators found that many of the systems and software proposed in GTI's solution were not currently available, and that the late availability dates proposed by the offeror represented significant risk to the agency.[2] The TEC also found GTI's proposed IP telephones were not currently available in the United States, and did not fully meet all the feature requirements identified in the solicitation.[3] Further, in the area of TSRP solution operations and management capability, the TEC found that GTI's proposal did not provide details on many requirements (e.g., missing information on how automatic call distribution equipment would be monitored and data archived), ignored or omitted information on many requirements (e.g., no evidence or discussion concerning many of the maintenance requirements in the management information area), or merely –echoed back— text from the solicitation (e.g., the voice network operations center requirement). The TEC concluded that the weaknesses and deficiencies in GTI's technical approach were such that it failed to meet the performance and capability standards set forth in the solicitation and warranted a rating of unsatisfactory. Id., Tab 6, TEC Report, at 13-16, Tab 5, TEC Consensus Summary of GTI, at 1-18.

The contracting officer subsequently decided that discussions with offerors were necessary, and established a competitive range consisting of the highest-rated, lowest-priced proposals. The agency eliminated GTI's proposal from the competitive range based on its determination that the firm's proposal had numerous significant weaknesses that constituted material failures in meeting the agency's requirements, in areas that increased performance risk to an unacceptable level. The contracting officer also believed that the weaknesses in GTI's proposal were ones that could not be addressed unless major portions of its proposal were rewritten. The agency also considered the fact that GTI's evaluated price was more than one-third higher than those of the other offerors, and that while some reduction in GTI's total price might be gained through negotiations, any such reduction likely would be in proportion to reductions that could be expected from the other offerors, thereby not affecting the comparative price difference between proposals. Id., Tab 7, Competitive Range Determination, at 25-26. This protest followed.

DISCUSSION

Where, as here, a protest challenges an agency's evaluation and exclusion of a proposal from a competitive range, we first review the propriety of the agency's evaluation of the proposal, and then turn to the agency's competitive range determination. Americom Gov't Servs., Inc., B-292242, Aug. 1, 2003, 2003 CPD para. 163 at 4. In reviewing such protests, we do not conduct a new evaluation or substitute our judgment for that of the agency, but examine the record to determine whether the agency's judgment was reasonable and in accordance with the terms of the solicitation and applicable procurement statutes and regulations. Wahkontah Servs., Inc., B-292768, Nov. 18, 2003, 2003 CPD para. 214 at 4. An offeror's mere disagreement with the agency's evaluation is not sufficient to render the evaluation unreasonable. Ben-Mar Enters., Inc., B-295781, Apr. 7, 2005, 2005 CPD para. 68 at 7.

As explained in detail below, based upon our review of the record, SSA's evaluation of GTI's proposal and the subsequent exclusion of GTI's proposal from the competitive range were reasonable. The record reflects that GTI's technical proposal was downgraded in large part because the information provided either parroted back in whole or in part the RFP's requirements, lacked sufficient information and detail for the agency to determine that GTI would comply with the RFP's requirements, and, in various instances, indicated noncompliance with material requirements of the solicitation. Although we do not here specifically address all of the protester's arguments about the evaluation of its proposal and exclusion from the competitive range, we have fully considered all of them and find that they afford no basis to question the agency's competitive range decision.

GTI argues that the TEC's determination that its proposed IP telephones were not currently available in the United States was improper.[4] The protester contends that its proposal made no representation with respect to the availability dates for its OpenStage telephones,[5] and, as a result, the agency evaluators could not reasonably conclude that GTI's proposed telephones were unavailable without first confirming the matter with either GTI or the telephone's manufacturer. Comments, May 14, 2007, at 9.

GTI's argument here reflects a fundamental misunderstanding of the proposal process. It is an offeror's responsibility to submit a well-written proposal, with adequately detailed information, which clearly demonstrates compliance with the solicitation requirements and allows for a meaningful review by the procuring agency. CACI Techs., Inc., B-296946, Oct. 27, 2005, 2005 CPD para. 198 at 5. An offeror is responsible for affirmatively demonstrating the merits of its proposal and risks the rejection of its proposal if it fails to do so. HDL Research Lab, Inc., B-294959, Dec. 21, 2004, 2005 CPD para. 8 at 5. Here, since it was GTI's responsibility to establish the timely availability of its proposed IP telephones--not, as the protester argues, the evaluators' responsibility to establish unavailability--and GTI admittedly failed to do so, we find the agency's evaluation to be entirely reasonable.

GTI also disputes the TEC's determination that many of its proposed systems and software were not currently available and would require additional development activity to meet the SOW requirements. The protester states, for example, that while offering an in-phone paging requirement was not planned by the telephone manufacturer, the feature would be delivered according to the necessary schedule upon contract award. Similarly, with regard to the softphone requirement,[6] GTI contends that while its proposal could have been a –little more clear,— it did state that GTI would comply with the SOW requirements. Comments, May 14, 2007, at 9-10.

In its proposal, while GTI agreed to provide a local in-phone paging system capability at all agency sites, it also stated that –[t]his in-phone paging capability will be available in a future upgrade release for the OpenStage SIP phones.— AR, Tab 4, GTI's Proposal, Vol. I, Technical Approach, at 132-33. Likewise, the offeror's proposal stated that

GTI will comply with the softphone functions and requirements of [SOW] Section C.4.2.2. An interface will be designed that will work in conjunction with the proposed HiPath 8000 [enterprise communications systems platform]. This application will be developed in compliance with published Assistive Technology standards . . . .

Id. at 87. As the quoted language makes clear, GTI's proposal in these areas conceded that the required telephone features were not currently available or would require development. In view of the conditional nature of the representations in the offeror's proposal, the TEC's determination that many of the GTI's proposed systems and software were not currently available and would require additional development activity clearly was reasonable.

GTI also contends that, given the ratings assigned its proposal under the individual technical factors, it was wholly inconsistent for SSA to assign the proposal an overall technical rating of unsatisfactory. Analogizing to –school grading,— GTI essentially argues that its overall evaluation rating should be based upon a straight average of the individual ratings received.[7] Protest, Apr. 2, 2007, at 6. We find the agency's decision to rate GTI's proposal as technically unsatisfactory overall was reasonable and consistent with the stated evaluation criteria.

As a preliminary matter, GTI ignores the fact that the technical evaluation factors here were not of equal importance. Rather, as set forth above, the RFP expressly established that the technical factors were listed in descending order of importance and that technical approach, where GTI's proposal was found to be unsatisfactory, was the technical factor of greatest importance.[8] Moreover, where an agency reasonably determines that an offeror's proposal is unacceptable as to any one evaluation criterion for failing to conform to material solicitation requirements, it is also reasonable for the agency to determine that the proposal is unacceptable overall. See Stewart Distribs., B-298975, Jan. 17, 2007, 2007 CPD para. 27 at 3-4; National Shower Express, Inc.; Rickaby Fire Support, B-293970, B-293970.2, July 15, 2004, 2004 CPD para. 140 at 4-5. There is simply no requirement, as GTI argues, that an agency's overall rating of an offeror's proposal be a straight average of the individual factor ratings where, as here, the proposal fails to conform to material solicitation requirements. As the agency reasonably determined that GTI's proposal was unsatisfactory as to technical approach--the most important technical factor--for failing to conform to material RFP terms, SSA's decision to rate GTI's proposal as technically unsatisfactory overall also was reasonable.

GTI also protests that SSA improperly failed to seek clarifications regarding certain technical aspects of its proposal prior to the competitive range determination. The protester argues that the alleged deficiencies found in its proposal related primarily to the TEC's lack of understanding of GTI's technical offering. In such situations, GTI contends, it is incumbent on the agency to seek clarification from the offeror prior to making the competitive range determination.[9]

SSA argues that the deficiencies and significant weaknesses in GTI's proposal were such that they exceeded the permissible scope of clarifications. Further, SSA contends, GTI fails to identify any requirement that the agency provide the offeror with the opportunity to clarify its proposal prior to making the competitive range determination. We agree on both counts.

Federal Acquisition Regulation (FAR) sect. 15.306 describes a spectrum of exchanges that may take place between a contracting agency and an offeror during negotiated procurements. Clarifications are limited exchanges between the agency and offerors that may occur when contract award without discussions is contemplated; an agency may, but is not required to, engage in clarifications that give offerors an opportunity to clarify certain aspects of proposals or to resolve minor or clerical errors.[10] FAR sect. 15.306(a); Satellite Servs., Inc., B-295866; B-295866.2, Apr. 20, 2005, 2005 CPD para. 84 at 2 n.2. By contrast, discussions--which are to occur after establishment of the competitive range--involve the agency indicating to each offeror the significant weaknesses, deficiencies, and other aspects of its proposal that could be altered or explained to materially enhance the proposal's potential for award. FAR sect. 15.306(d)(3). The –acid test— for deciding whether discussions have been held is whether it can be said that an offeror was provided the opportunity to modify its proposal. National Beef Packing Co., B-296534, Sept. 1, 2005, 2005 CPD para. 168 at 11; Park Tower Mgmt. Ltd., B-295589, B-295589.2, Mar. 22, 2005, 2005 CPD para. 77 at 7.

As noted above, the informational deficiencies in GTI's technical proposal were significant ones, such that curing them would have involved material changes to the offeror's proposal. Accordingly, such an exchange would have constituted discussions, not clarifications. Lockheed Martin Simulation, Training & Support,

B-292836.8 et al., Nov. 24, 2004, 2005 CPD para. 27 at 8; Priority One Servs., Inc.,

B-288836, B-288836.2, Dec. 17, 2001, 2002 CPD para. 79 at 5.

In any event, even assuming, as the protester contends, that GTI could have resolved the many informational deficiencies in its proposal by means of clarifications, whether to seek clarifications is a discretionary decision on the part of the contracting agency, not a right that the offeror possesses; any decision not to seek clarifications here clearly was well within the agency's discretion.[11] Satellite Servs., Inc., supra.

GTI also protests that SSA's decision to exclude its proposal from the competitive range was unreasonable. The protester argues that a recognized basis for the establishment of a competitive range is where there is a break or gap in the offerors' evaluation scores. GTI contends that no evaluation scoring gap or break existed here between its proposal and those of Offerors A and C--that the differences between the technical ratings of Offerors A and C and itself were –infinitesimal—--such that SSA's decision to include these offerors' proposals in the competitive range also mandated the inclusion of GTI's proposal. Comments, May 14, 2007, at 7. We disagree.

Contracting agencies are not required to retain a proposal in a competitive range where the proposal is not among the most highly rated or where the agency otherwise reasonably concludes that the proposal has no realistic prospect of award. FAR sect. 15.306(c)(1); SDS Petroleum Prods., Inc., B-280430, Sept. 1, 1998,
98-2 CPD para. 59 at 5-6. Where a proposal is technically unacceptable as submitted and would require major revisions to become acceptable, exclusion from the competitive range is generally permissible. CMC & Maint., Inc., B-290152, June 24, 2002, 2002 CPD para. 107 at 2. Proposals with significant informational deficiencies may also be excluded, whether the deficiencies are attributable to omitted or merely inadequate information addressing fundamental factors. Wahkontah Servs., Inc., supra. While an agency may determine whether a natural break or gap exists in offerors' merit ratings as part of its competitive range determination, it is the competitive range procedures published in the FAR that set the standard for establishing such ranges. See Wilson 5 Serv. Co., Inc., B-285343.2, B-285343.3,

Oct. 10, 2000, 2000 CPD para. 157 at 4.

Contrary to GTI's representations, the differences between its technical merit ratings and those of Offerors A and C were in fact substantial. The agency reasonably found that while the technical proposals of Offerors A and C each had a number of weaknesses and areas requiring clarification, the shortcomings were ones that could be readily addressed through proposal revisions. AR, Tab 7, Competitive Range Determination, at 25. By contrast, as detailed above, GTI's technical proposal had numerous significant weaknesses that constituted material failures in meeting the government's requirements, and the deficiencies reasonably could not be addressed without major proposal revisions. Additionally, the protester fails to mention the significant price difference (i.e., more than one-third higher) that existed between its proposal and those of Offerors A and C. Quite simply, GTI's assertion that no evaluation rating gap or break existed between its proposal and those of Offerors A and C is groundless.

More importantly, on this record, there is simply no basis to conclude that the agency was required to find that GTI's lowest-technically rated, highest-priced proposal was among the most highly rated, or that the proposal had any realistic chance of being selection for award. GTI's proposal contained numerous informational deficiencies and other instances of material technical noncompliance which provided a reasonable basis for the agency to exclude the proposal from the competitive range.[12]

The protest is denied.

Gary L. Kepplinger
General Counsel