Matter of: ASR Management & Technical Services File: B-252611 Date: July 15, 1993
B-252611: Jul 15, 1993
PROCUREMENT Competitive Negotiation Offers Evaluation Organizationl experience Protest that agency improperly evaluated experience of two lower priced offerors is denied where record supports the agency's finding of technical acceptability based upon the proposals submitted by each offeror. PROCUREMENT Bid Protests Dismissal PROCUREMENT Competitive Negotiation Below-cost offers Acceptability Protest that competitor's prices are unreasonably low does not constitute a valid basis for protest since there is no legal basis on which to object to submission of a below-cost offer. Were improperly determined to be technically acceptable under the solicitation's experience criteria. BACKGROUND This solicitation constitutes a reprocurement effort for the remainder of a contract which was improperly awarded to ASR on September 21.
Matter of: ASR Management & Technical Services File: B-252611 Date: July 15, 1993
PROCUREMENT Competitive Negotiation Offers Evaluation Organizationl experience Protest that agency improperly evaluated experience of two lower priced offerors is denied where record supports the agency's finding of technical acceptability based upon the proposals submitted by each offeror. PROCUREMENT Bid Protests Dismissal PROCUREMENT Competitive Negotiation Below-cost offers Acceptability Protest that competitor's prices are unreasonably low does not constitute a valid basis for protest since there is no legal basis on which to object to submission of a below-cost offer.
DECISION ASR Management & Technical Services protests the award of a contract to M-L Computer Technologies under request for proposals (RFP) No. F42610-92-R-0129, issued by the Air Force for configuration management services to support the Minuteman and Peacekeeper technical efforts in the Intercontinental Ballistic Missile (ICBM) Weapon System. ASR contends that both M-L and the second-low offeror under this solicitation--Pacific West Technologies (PWT)--were improperly determined to be technically acceptable under the solicitation's experience criteria. ASR also contends that M-L and PWT submitted below-cost offers.
We deny the protest.
This solicitation constitutes a reprocurement effort for the remainder of a contract which was improperly awarded to ASR on September 21, 1991; the current RFP was issued on October 19, 1992, and--like its predecessor- -was set aside under the Small Business Administration's (SBA) section 8(a) program, which authorizes the SBA to enter into contracts with government agencies and to arrange for performance through subcontracts with socially and economically disadvantaged small business concerns. See 15 U.S.C. Sec. 637(a) (1988 and Supp. III 1991). ASR has been performing these services under a temporary contract arrangement, pending award under the resolicitation effort.
As amended, the RFP sought offers for a base 6-month period and a 1- year option period, and required offerors to submit separate cost and technical proposals; in this regard, offerors were advised that contract award would be made to the lowest priced, technically acceptable offeror on an "all or none" basis.
For their cost proposals, offerors were required to complete and submit the solicitation's "SUPPLIES OR SERVICE AND PRICES/COST" schedule which contained two fixed-price contract line item numbers (CLIN) (for data entry services for "Contract Data Requirements List" (CDRL) forms); four fixed-price level-of-effort CLINs (for configuration management services based on a required minimum of seven individuals performing the Minuteman technical effort and four individuals performing the Peacekeeper technical effort); and eight cost-reimbursable CLINs (for the costs of travel, supplies, and related equipment necessary to perform the services specified in the fixed-price CLINs).
With respect to the agency's technical requirements, the RFP set forth an 8-page statement of work (SOW) which contained an itemized "CONTRACTOR TASKS AND REQUIREMENTS" section; for their technical proposals, offerors were instructed--via a 5-page "PROPOSAL PREPARATION INSTRUCTIONS" section- -that "each technical proposal must include a complete narrative description of how the offer[o]r plans to satisfy each specific requirement of the . . . SOW." In their technical proposals, offerors were also required to provide work histories for the 11 proposed configuration management personnel.
With respect to the evaluation of technical proposals, the solicitation's "PROPOSAL EVALUATION" clause advised offerors that "[t]echnical acceptance will be granted only for proposals that fully describe how the offeror will satisfy each of the requirements of the SOW." In this regard, as set forth in the "SPECIFIC CRITERIA" section of the RFP, "[e]ach technical proposal" was to be evaluated for "capability to perform the requirements" under the categories of "Technical Risk" and "Configuration Management Technical Adequacy."
In order to determine whether offerors were technically acceptable under the "Technical Risk" factor--defined in the RFP "as the likelihood that the offer[o]r may endanger or introduce problems into the existing . . . Configuration Management systems"--the RFP provided that the following experience-related subfactors would be evaluated:
"a. Related experience. Previous experience in successful provision of the type of Configuration Management per the SOW will be evaluated. The approach depicted in the offering should be based on similar experience within the past  years. The offeror must discuss details of its capability and the outcome of similar services previously provided.
"b. Specific experience of the person assigned to the project will be evaluated in terms of similar project experience. The employee must have sufficient technical knowledge to insure that problems are identified in all Configuration Management systems, and significant knowledge of data to allow early correction."
With respect to determining whether proposals were technically acceptable under the "Technical Adequacy" factor, the RFP provided that proposals would be evaluated to ascertain whether the proposal "demonstrates understanding of the requirements . . . in the SOW" and to determine whether the "proposed approach meets each and every requirement of the SOW." In this regard, the SOW set forth an experience requirement-- independent of the "Technical Risk" subfactors set forth above--which stated that "these [configuration management] services require a minimum of  years of Silo-Based ICBM configuration management experience."
At the November 30 closing date, offers were received from M-L, PWT and the protester. On January 5, 1993, a three-member technical evaluation panel (TEP) convened and evaluated the technical acceptability of each proposal on a "go/no-go" basis; that is, instead of ranking the pro- posals comparatively--by means of a descriptive narrative or point scores- -the evaluators utilized a "yes/no" evaluation scheme to indicate whether each proposal met a specific technical requirement. On January 7, the TEP concluded its evaluation, and determined that all three proposals were technically acceptable. By letter dated January 14--after discussions were held to verify that each offeror understood that award would be made to the lowest priced, technically acceptable offeror; that there was no requirement for submission of certified cost and pricing data; and "that [such] data would not be evaluated"--the Air Force requested best and final offers (BAFO). On March 3, the Air Force made award to M-L as the lowest priced, technically acceptable offeror. On March 10, ASR filed this protest with our Office, challenging the award as improper.
Configuration management generally refers to a computerized method for monitoring and recording technical design changes in a particular item; the configuration management services required under this RFP call for tracking and transcribing the Air Force's technical modifications, testing and repairs, to the Minuteman and Peacekeeper missile documentation.
The Air Force reports that while the primary purpose of this solicitation is to obtain 11 technically qualified personnel to perform the required configuration management services, its minimum needs are best served by procuring these personnel under the management of an independent prime contractor to reduce the agency's administrative burdens and costs, and to ensure technical oversight and quality control. The record shows that since 1988, the same 11 personnel have been performing the configuration management tasks required here on a "for hire" basis to different prime contractors. When ASR was awarded the predecessor contract for these services in September of 1991, the company hired the 11 employees of the previous prime contractor to fulfill this requirement; similarly, with respect to the competition under the current RFP, each offeror proposed using the same 11 incumbent personnel. In short, the successful contractor under this RFP will act as an administrative liaison between the Air Force's requiring activity and the incumbent personnel.
In its protest, ASR argues that the Air Force conducted a faulty technical evaluation of both the M-L and PWT technical proposals; specifically, ASR contends that the Air Force improperly determined that M -L and PWT have the requisite management and technical experience specified in the RFP. In this regard, ASR argues that although both firms "succeeded in providing resumes of qualified personnel by recruiting" the 11 incumbent employees, the work histories of these employees do not satisfy the RFP's experience requirement for similar corporate experience within the last 5 years, or the SOW's requirement for 3 years of specific ICBM technical experience.
In reviewing protests challenging the propriety of a technical evaluation, we will not evaluate proposals anew and make our own determination as to their acceptability or relative merits, as the evaluation of proposals is the function of the contracting agency; rather, we will examine the record to determine whether the agency's judgment was reasonable and consistent with the evaluation criteria listed in the RFP. Contract Servs., Co., Inc., B-246604.2 et al., June 11, 1992, 92-1 CPD Para. 508. A protester's disagreement with the agency's evaluation is not itself sufficient to establish that the agency acted arbitrarily. Id. Moreover, in reviewing technical evaluations and selection decisions, we look to the entire record, including statements and arguments made in response to the protest, so that we may determine whether they are supportable; we do not limit our review to the question of whether they were properly documented at the time they were made. Hydraudyne Sys. and Eng'g B.V., B-241236; B-241236.2, Jan. 30, 1991, 91-1 CPD Para. 88.
To the extent ASR contends that neither M-L nor PWT has the requisite corporate experience required under the "Technical Risk"/"related experience" evaluation subfactor set forth above, our in camera review of the M-L and PWT proposals clearly demonstrates otherwise. With respect to M-L's qualifications, that firm's proposal shows that M-L has been certified as an 8(a) firm since 1988 and has performed comparable "document control, material management, human resource, and safeguard systems" contracts for a variety of private and government clients. PWT's proposal demonstrates similar corporate experience; that firm has been certified as an 8(a) participant since 1990 and has performed analogous technical management contracts "in civil engineering, water and environmental science, information/computer systems, and facility management support." In light of the general nature of the "corporate" management specifications set forth in the RFP--which, as noted above, essentially seek an administrative coordinator and supervisor for the 11 technical personnel performing the configuration management services--we find no basis to question the technical acceptability of either the M-L or the PWT proposals with respect to this particular experience subfactor.
With regard to ASR's contention that both M-L and PWT lack the 3 years of ICBM technical experience specified in paragraph 3.2.2 of the SOW, ASR argues that the RFP contemplated evaluation of the "contractor's" experience, apparently referring to the offerors' corporate experience. This contention is without merit. Where, as here, the purpose of a particular experience requirement is to ascertain a company's technical capability, an agency properly may consider the cumulative experience of a firm's personnel. See General Offshore Corp., B-246824, Apr. 1, 1992, 92-1 CPD Para. 335; Homequity, Inc., B-223997, Dec. 19, 1986, 86-2 CPD Para. 685. That is precisely what the agency did here; the agency's technical evaluation worksheets clearly demonstrate that to determine whether each offeror satisfied the 3-year ICBM experience requirement, the TEP examined each offeror's proposal to determine whether it "contain[ed] work histories of employees with at least  years of [ICBM] configuration management experience." ASR does not contend that the employees proposed by M-L and PWT lacked the required experience; on the contrary, ASR itself, like the other two offerors, offered to satisfy the ICBM experience requirement with the 11 incumbent personnel. To the extent that ASR argues that the agency's consideration of the individual employees' experience should have been limited to each offeror's current, rather than proposed, employees, this interpretation is clearly unreasonable; since the agency's purpose was to assess the offeror's ability to perform the work called for under the RFP, the evaluation properly focused on the qualifications of those proposed to perform under the prospective contract.
ASR also alleges that the M-L and PWT proposals are below-cost and constitute improper attempts to "buy into" this requirement. There is no legal basis on which to object to the submission of a below-cost offer. Esilux Corp., B-234689, June 8, 1989, 89-1 CPD Para. 538. To the extent ASR claims the lower prices show these firms are nonresponsible, we will not review affirmative determinations of an offeror's responsibility, absent evidence of fraud or bad faith by government officials, or misapplication of definitive responsibility criteria--circumstances which are not alleged or otherwise evident from this record. See id.
The protest is denied.
1. In addition to the Peacekeeper and Minuteman technical efforts, the prior solicitation also required configuration management services for the Strategic Missile Test Center (SMTC) technical effort. On September 20, 1991, ASR was awarded the predecessor contract; however, due to the contractor's inability to provide a qualified candidate for the SMTC position, the SMTC requirement was deleted from ASR's contract by means of an October 18 no-cost settlement agreement. On October 29, after learning of the SMTC contract deletion, the second low offeror under the predecessor procurement filed a protest with this Office, challenging the ASR award as improper; by notice received December 12, the Air Force informed us that it had improperly awarded the contract to ASR and would resolicit the requirement--and terminate ASR's contract if ASR was not the successful offeror under the reprocurement. On December 16, ASR filed a protest with this Office challenging the Air Force's proposed termination and decision to resolicit; by decision dated April 23, 1992, we determined that the termination and resolicitation were proper since the record showed that in awarding the contract to ASR, the Air Force had waived the SMTC mandatory experience requirement. ASR Mgmt. & Tech. Servs., B-244862.3; B-247422, Apr. 23, 1992, 92-1 CPD Para. 383. Because of its complexity, the SMTC technical effort has been separately competed under another solicitation.
2. Initially, the RFP requested proposals for a base period of 1 year; by amendment No. 0001--issued on October 29--the base period was reduced to 6 months.
3. Per the proposal preparation instructions, the technical proposals did not contain any identifying offeror information.
4. In the RFP's amendment No. 0001, the agency had simultaneously "ADDED" and "DELETED" a requirement to submit certified cost and pricing data.
5. Apparently, each offeror has obtained employment commitments from these individual personnel contingent upon the offeror's receiving contract award.
6. Because each offeror's compliance with the similar corporate experience requirement was so evident from the face of each proposal, the TEP did not execute a specific evaluation worksheet for this experience subfactor.
7. In any event, we see no evidence to suggest that the prices are unreasonably low since M-L's and PWT's prices are close and the difference between their prices and ASR's is relatively small.