KPMG LLP
Highlights
KPMG LLP, of McLean, Virginia, protests the award of a contract to Deloitte & Touche LLP, of Arlington, Virginia, by the Central Intelligence Agency (CIA) under request for proposals (RFP) No. 2012-11120600005 for accounting and financial services in support of the Office of the Director of National Intelligence (ODNI). KPMG argues that the CIA held misleading discussions, misevaluated the proposals, failed to conduct a proper cost realism analysis, and made an unreasonable source selection decision.
We sustain the protest.
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release.
Decision
Matter of: KPMG LLP
File: B-406409; B-406409.2; B-406409.3; B-406409.4
Date: May 21, 2012
Michael A. Hordell, Esq., Michael R. Golden, Esq., Heather Kilgore Weiner, Esq., and Samuel Jack, Esq., Pepper Hamilton LLP, for the protester.
David S. Cohen, Esq., John J. OBrien, Esq., and Gabriel E. Kennon, Esq., Cohen Mohr LLP, for Deloitte & Touche LLP, an intervenor.
Christopher E. Gagne, Esq., and Arthur L. Passar, Esq., Central Intelligence Agency, for the agency.
Paul N. Wengert, Esq., Glenn G. Wolcott, Esq., and Sharon L. Larkin, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Agency conducted misleading discussions where it advised protester during discussions that it should provide resumes for all proposed personnel for the lifespan of the contract, but now asserts that the RFP did not require such submission of resumes.
2. Agency failed to conduct an adequate cost realism analysis of proposals for cost-plus-fixed-fee level-of-effort contract where the record is devoid of any meaningful analysis by agency evaluators of their basis for accepting as realistic the awardees cost proposal, and record showed that, beginning a year into performance, the firms cost savings depended on replacement of staff whose resumes were relied upon for the awardees higher technical ratings.
DECISION
KPMG LLP, of McLean, Virginia, protests the award of a contract to Deloitte & Touche LLP, of Arlington, Virginia, by the Central Intelligence Agency (CIA) under request for proposals (RFP) No. 2012-11120600005 for accounting and financial services in support of the Office of the Director of National Intelligence (ODNI). KPMG argues that the CIA held misleading discussions, misevaluated the proposals, failed to conduct a proper cost realism analysis, and made an unreasonable source selection decision.
We sustain the protest.
BACKGROUND
The CIA issued the RFP on December 12, 2011, seeking proposals to provide services to assist in the preparation of auditable financial statements for the ODNI. RFP at 1. The RFP anticipated the award of a cost-plus-fixed-fee level-of-effort contract[1] for a base year and four annual option periods[2] to the firm whose proposal offered the best value. Agency Report (AR) at 2; RFP at 10, L-2.[3]
The RFP described the objectives of the contract as producing auditable financial statements each year by November 15, beginning with Fiscal Year 2014. After that, the contractor will support the agencys efforts to resolve audit issues, so that the agency is able to obtain an unqualified opinion on the ODNI financial statements by Fiscal Year 2016. Statement of Work (SOW) at 3-4. The contract tasks were grouped into nine areas: program management, financial analysis, internal controls and compliance, financial statements preparation support, process redesign and policies/procedures, training, documentation support, audit support, and preparation of written products. SOW at 5-9.
Since the RFP stated that the CIA intended to award a cost-reimbursement level-of-effort contract, it provided that the required level of effort for this requirement is fourteen (14) Full Time Equivalents [FTEs] for a period of one year (BASE) with options for an additional four years . . . Id. at 4; RFP at 5. The SOW further allocated the 14 FTEs among three labor categories: program manager/senior technician (2 FTEs), financial support personnel (8 FTEs), and functional support specialist (4 FTEs). SOW at 10-11. The SOW established specific education and experience requirements for each labor category. Id.
Proposal Instructions
The RFP directed offerors to submit proposals addressing, among other things, the firms technical approach, management approach, past performance, security, and cost/price. RFP at L-3. Under the technical volume, the RFP directed offerors to provide a narrative description of the offerors approach, and to include resumes for the proposed Project Manager, full time staff, and any other specialized staff the offeror believes might be required for backup. RFP at L-5. For the management volume, the RFP directed each offeror to describe how its proposed team would be capable of performing the contract requirements, and also to describe the offerors ability to retain and recruit personnel consistent with the SOW. Id. With respect to the security requirements, the RFP directed offerors to describe the firms general approach to complying with the contracts security requirements and to supply specific information about each individual proposed employee, including the individuals full name, date of birth, social security number, background investigation and security clearance, and the date when the individual would begin work on the contract. RFP at L-8.
In the cost volume, the RFP directed offerors to provide a complete explanation of the basis for their costs. The RFP provided that ALL of the instructions for the Cost/Price Volume apply to all Offerors, whether Prime or subcontractor. RFP at L-9. The instructions further directed offerors to provide cost or pricing data from the prime and subcontractors, and a basis of estimate for the offerors costs, including a breakdown of the underlying cost elements. RFP at L-9.
Best Value Evaluation Scheme
The RFP provided that proposals would be evaluated under four factors: technical, management, past performance, and cost. RFP at M-2. The RFP explained that award would be made to the firm whose proposal provided the best value, with the technical factor more important than the management factor, which was, in turn, more important than the past performance factor. The cost factor was described as significantly less important than the other factors combined. RFP at M-2 to M-3.
Under the technical factor, the RFP listed two subfactors: personnel qualifications and skills, and technical capability and understanding of the requirements. Id. Under the management factor, the RFP listed one subfactor: staffing and availability. Id. There were no subfactors under the other evaluation factors.
The RFP also established a fifth factor, security, to be evaluated on a pass/fail basis. The RFP stated that firms receiving a rating of fail, or whose security deficiencies were not correctable, would be eliminated from the competition. RFP at M-3 to M-4. The security factor evaluation was to consider the clearance status of the proposed personnel, among other things, and the RFP advised offerors that contractor personnel were required to hold a current ODNI ISSA/TS [Industrial Security Staff Approval/Top Secret] clearance, or be eligible for immediate crossover. RFP at M-4.
Proposal Submission
The CIA received timely proposals from KPMG and Deloitte. Both firms initial proposals offered diminishing resources over the life of the contract; that is, each firm proposed either fewer personnel or less qualified personnel after an initial contract performance period. For example, KPMGs initial proposal offered to provide 14 FTEs during the first [deleted].[4] Thereafter, the proposal stated that the firm anticipated that the services would be less complex, and KPMG proposed to reduce staffing for the [deleted]. AR Binder 2, Tab 4, KPMG Initial Management Proposal, at 3. Similarly, Deloittes proposal indicated that after the base performance period, it would transition to less experienced personnel. Supplemental (Supp.) AR Binder 3, Tab 3, Deloitte Final Proposal Revision, at 1.
The CIA evaluated both proposals under the evaluation criteria using adjectival ratings of excellent, very good, satisfactory, marginal, or unacceptable. The initial technical and management evaluation ratings were as follows:
Factor/Subfactor | Deloitte | KPMG |
Technical Approach |
|
|
1. Personnel Quals & Skills | Very Good | Very Good |
2. Technical Capability | Very Good | Very Good |
Management Approach | Very Good | Very Good |
Supp. AR Binder 3, Tab 8, Final Technical & Management Evaluation Report, at 1.
Discussions
Following its evaluation of initial proposals, the CIA determined that both proposals had weaknesses that should be addressed prior to contract award. Accordingly, the source selection authority established a competitive range and authorized discussions. AR Binder 1, Tab 11, Competitive Range Determination, at 1.
The CIA provided each offeror a written discussion letter. For KPMG, the discussion letter advised the firm, among other issues, that its proposed staffing was unacceptable, stating:
KPMG has failed to propose the required Fourteen (14) FTEs as mandated and has therefore failed to meet the requirements of the solicitation. As a result, the Government does not have a realistic cost estimate based on KPMGs submission. Resumes should be provided for all personnel proposed to perform over the lifespan of the contract.
AR Binder 1, Tab 12, Discussions Letter from CIA to KPMG, at 1.
In discussions with Deloitte, the agency raised a similar concern with Deloittes proposal to transition to less qualified personnel after the initial performance period, stating:
Deloitte should either submit resumes for the less experienced personnel forecasted, or revise the cost proposal to reflect the labor categories for the resumes provided in the initial proposal in order for the Cost and Technical/Management Teams to make a fair cost determination.
Supp. AR Binder 3, Tab 6, Discussions Letter from CIA to Deloitte, Jan. 13, 2012, at 1.
The CIA also posed a question to Deloitte regarding the absence of pricing information for Deloittes subcontractors, stating that the initial proposal was incomplete in that regard and requesting that Deloitte submit all required information for subcontractors as specified in [RFP] Section L, [¶] 7.4.1. Id.
Submission of Final Proposal Revisions
In its final proposal revision (FPR), KPMG stated that it was eliminating the staff reductions initially proposed [deleted], and instead would be maintaining its staff at 14 FTEs for all years of contract performance. AR Binder 2, Tab 9, KPMG Final Management Proposal Revision, at 3; AR Binder 2, Tab 10, KPMG Final Cost Proposal Revision, at 9-11, 16. Additionally, KPMG provided resumes for all of its proposed personnel. AR Binder 2, Tab 9, KPMG Final Technical Approach Proposal Revision, at 5-6 & app. A, at A-1 to A-39; KPMG Final Management Proposal Revision, at 4-5.
In contrast, Deloitte responded in its FPR that it is very difficult to provide resumes of specific individuals that we plan to transition into the contract. Supp. AR Binder 3, Tab 5, Deloitte Final Technical Proposal Revision Cover Letter, at 1. Instead, Deloitte stated that it was provid[ing] a representative resume for each labor category, explaining that the resumes were submitted to reflect the types of skills and experience that we envision delivering in the out years. Id. at 1-2.
Deloittes final cost proposal revision included a complex explanation for its labor costs. The proposal stated that the firm followed two practices for its proposed direct costs. First, for the [deleted] key personnel, Deloittes proposed costs were [deleted]. In contrast, for the non-key personnel, Deloitte used blended rates, which were calculated as [deleted]. Supp. AR Binder 3, Tab 5, Deloitte Final Cost Proposal Revision, at VII-66 to VII-70. Deloitte explained that its blended rates were determined by dividing the range of direct labor rates for each labor category into [deleted] (consistent with the forward pricing rate recommendation[5] applicable to the company), and then selecting a [deleted]. Id. at VII-70.
Deloitte also stated that due to the RFPs security clearance requirement, the salaries necessary to attract such personnel are on the higher side of the salary ranges in the survey. However, contrary to that assertion, for [deleted] of the [deleted] blended rates, Deloitte used only rates in the [deleted].[6] Id. These blended rates were then used by Deloitte to calculate its proposed costs for each year of contract performance. Supp. AR Binder 3, Tab 5, Deloitte Final Cost Proposal Revision, at VII-8 through VII-43.
Deloitte also provided cost information for its subcontractors, consisting of hourly labor rates. Supp. AR Binder 3, Tab 5, Deloitte Final Technical Proposal Revision Cover Letter, at 1; Supp. AR Binder 3, Tab 5, Deloitte Final Cost Proposal, at VII-176 to VII-187k.
Evaluation of Final Proposal Revisions
The CIA evaluated the FPRs and concluded that both of the final proposals eliminated the weaknesses the agency identified during discussions. While the evaluators made no changes to KPMGs ratings, they ultimately identified several strengths in the proposal. Specifically, the evaluators assigned two minor strengths to KPMGs final proposal revision under the personnel qualifications subfactor: (1) that personnel proposed for the financial support personnel and the functional support specialist positions exceeded the minimum qualifications in all areas, and (2) that the program manager exceeded all minimum requirements. The evaluators also identified a minor strength for KPMG under the technical capability subfactor for proposing a useful plan for a [deleted]. Under the management factor, the evaluators identified as a significant strength KPMGs comprehensive plan [deleted], and as a minor strength, KPMGs plan for [deleted]. Supp. AR Binder 3, Tab 8, Final Technical & Management Evaluation Report, at 6-7.
The evaluators also identified several strengths in Deloittes final proposal revision. Under the personnel qualifications subfactor, the evaluators assessed two major strengths for Deloitte: (1) for the qualifications of the proposed program manager and senior technician, because the strength of their resumes gave the evaluators confidence in the offerors ability to successfully achieve [deleted]; and (2) that all of the personnel proposed for the financial support personnel and functional support specialist positions exceeded the minimum experience requirements, including [deleted]. Id. at 4. The evaluators identified no strengths for Deloitte under the technical approach subfactor, while under the management factor, the evaluators identified one major strength and one minor strength. The major strength was assessed because Deloittes management approach had been used to obtain [deleted], and the firm had [deleted]. The minor strength was that the firm had a solid approach to [deleted]. Id. at 5.
A cost evaluation team (CET) was assigned to assess the realism of the offerors proposed costs. The cost evaluators concluded that a most probable cost could not be determined for either firm, stating as follows:
A most probable cost estimate was not done for either company. KPMG, LLP proposed . . . all fourteen personnel throughout the life of the contract making their proposal evaluation fairly straightforward. Deloittes pricing decreases in the option years due to their strategy of providing higher priced, higher qualified personnel in the early years of the effort . . . and then replacing them with less expensive, but still qualified personnel in the later years. Deloitte does not provide an exact date when this will occur, but states that it will take place when experience and innovation allow them to transition personnel. When the technical evaluation team . . . reviewed the representative resumes for proposed personnel who may be used in the out years, it gave them a high degree of confidence that their qualifications still exceeded the minimum asked for in the SOW. Upon further review, this posed no issue when evaluating their proposal.
AR Tab 16, CET Final Report, at 4.
The CET report then made identical brief statements that each offerors proposed costs were realistic because they were consistent with the firms technical proposal, and were consistent with the Government Cost Estimate.[7] Id. at 5 (KPMG) & 7 (Deloitte).
An auditors notes, which were attached to the cost evaluation report, contained specific concerns regarding Deloittes final cost proposal revision. Among these was the concern that Deloitte failed to provide cost or pricing data for the firms subcontractors, as required by both RFP ¶ L.7.3 and the agencys discussion questions. Id. at 10.[8] The auditors notes also observed that, although Deloittes pricing decreased in the option years by transitioning personnel to lower-cost replacement staff,
Deloitte does not provide an exact date when this will occur, but states that it will take place when experience and innovation allow them to transition personnel. As such the decrease in pricing is not assured as it is based on an intangible occurrence.
Id.
The auditor concluded that there was [n]o reasoning to compute a [most probable cost] and therefore the most probable cost was each offerors actual costs. Id. The auditor further observed that a comparison of the offerors labor rates to publicly available data was problematic because available data was dated, and was not based on a survey of rates for personnel with security clearances. Finally, the auditor suggested that a comparison of rates between the two offerors would be more relevant, but observed that there were significant rate differences between the two proposals which were attributable largely to Deloittes proposal strategy. In conclusion, the auditor simply noted that the total proposed costs for both firms were lower than the government estimate.[9] Id. at 10.
The source selection decision listed the final evaluation results as follows:
Factor/Subfactor | Deloitte | KPMG |
Technical Approach | Very Good | Very Good |
1. Personnel Quals./Skills | Exceptional | Very Good |
2. Technical Capability | Satisfactory | Very Good |
Management Approach | Very Good | Very Good |
Past Performance | Exceptional | Exceptional |
Security | Pass | Pass |
Cost | $15.4 million | $16.2 million |
AR Binder 1, Tab 18, Source Selection Decision, at 2-3.
Source Selection Decision
In reviewing the evaluation results, the source selection authority noted the excellence of KPMGs staffing at the program manager position, and the capabilities of Deloittes senior technician and the staff proposed for its financial support personnel positions. Id. at 3. The selection authority then repeated the CET evaluation of Deloittes costs, noting that the firm had proposed to replace the original staff with less experienced, less expensive personnel, and that Deloitte had described this transition as dependent on the firms experience and innovation. Despite this observation, the selection authority reiterated the CETs view that this presented no issue for evaluation. Id. at 4.
The selection decision then addressed which firms proposal offered the best value. The selection authority observed that Deloitte had received slightly higher evaluation ratings than KPMG; he also stated that while KPMG had several strengths [for particular labor categories] and a slightly better Technical Approach, Deloittes proposal had more important strengths, particularly . . . in the most heavily-weighted Personnel Qualifications and Skills [sub]factor, that would be more beneficial to the program. Id. While noting that the cost factor was less important, the selection authority concluded that Deloittes proposal offered a significant cost savings compared to KPMGs proposal. Id. at 5. Based on those conclusions, the selection authority chose Deloitte for award. Id. This protest followed.
DISCUSSION
While KPMG raises various allegations, our decision focuses on two, which we conclude have merit and were prejudicial to KPMG. First, the CIA misled KPMG during discussions by informing it that the firm should provide resumes for all personnel for the lifespan of the contract, yet subsequently declined to hold Deloitte to the same standard. As discussed below, this difference in approach required KPMG to base its costs on specific highly-trained personnel who had obtained security clearances, while Deloitte was permitted to estimate lower costs after the base period for personnel not yet identified--but presumed to be less costly than the personnel Deloitte would use for the base period. Second, the CIA conducted a cursory and inadequate cost realism analysis, failed to assess whether either offerors cost approach corresponded to its technical approach, and failed to reasonably assess a most probable cost for either offeror.[10]
Misleading Discussions
KPMG first notes that, consistent with the RFP requirement that offerors must include a professional resume for all proposed personnel, RFP at L-5, the CIA instructed KPMG during discussions that it must propose 14 FTEs in each contract year, and that [r]esumes should be provided for all personnel proposed to perform over the lifespan of the contract. AR Binder 1, Tab 12, Discussions Letter from CIA to KPMG, at 1. As quoted above, KPMG notes that the CIAs discussions with Deloitte provided essentially the same instruction (Deloitte should either submit resumes for the less experienced personnel forecasted, or revise the cost proposal to reflect the labor categories for the resumes provided . . .). Supp. AR Binder 3, Tab 6, Discussions Letter from CIA to Deloitte, Jan. 13, 2012, at 1. Yet, the agency thereafter found Deloittes submission of a single representative resume for each of the three labor categories to be acceptable. On this record, KPMG argues that it was misled by the agency during discussions and/or subsequently treated unequally, because although KPMG complied with the agencys direction, Deloitte did not--and, indeed, Deloittes noncompliance formed the basis for effectively lowering its evaluated costs.
The CIA responds that the RFP did not require resumes for employees that were proposed to perform beyond the initial performance period, that the agencys discussions question to KPMG did not reflect a mandatory requirement, and that KPMG bears the responsibility for its voluntary decision to submit resumes of existing employees for the full term of the contract. CIA Response to Third Supplemental Protest, at 4-6. The CIA further asserts that, even if the RFP, or the agencys discussions, required KPMGs submission of additional resumes, the agency could waive the requirement, and if it has done so here, the agencys actions did not prejudice KPMG. We disagree.
In negotiated procurements, whenever discussions are conducted by an agency, they are required to be meaningful, equitable, and not misleading. Metro Mach. Corp., B-295744, B-295744.2, Apr. 21, 2005, 2005 CPD ¶ 112 at 19. In conducting discussions with offerors, agency personnel also may not engage in conduct that favors one offeror over another. FAR § 15.306(e)(1). Thus, agencies may not engage in what amounts to disparate treatment of the competing offerors. Front Line Apparel Group, B-295989, June 1, 2005, 2005 CPD ¶ 116 at 3-4. Where the manner in which an agency communicates with an offeror during discussions misleads an offeror into responding in a way that does not address the agencys concerns, the discussions are inadequate. Metro Mach. Corp., B-281872 et al., Apr. 22, 1999, 99-1 CPD ¶ 101 at 6-7. Thus, for example, where an agency advises an offeror in discussions to revise its proposal in a way that does not reflect the agencys evaluation, the discussions are misleading. SeKON Enter., Inc.; Signature Consulting Group, B-405921, B-405921.2, Jan. 17, 2012, 2012 CPD ¶ 26 at 7 (protest sustained where agency discussions advising protester to increase staffing level were not based on initial evaluation, and agency gave no consideration to increased staffing level in evaluation of revised proposal).
Here, as discussed above, the agency clearly advised KPMG that it should provide personnel resumes for all personnel proposed to perform over the lifespan of the contract. In the context of the CIAs current position that the RFP did not require submission of resumes for personnel that were proposed to perform beyond the initial performance period, the agencys discussions with KPMG were clearly misleading.[11] Further, in cases such as this, we need not establish with certainty what the protesters approach would have been if the discussions had been meaningful; rather, a protesters reasonable assertion of a claim that it could have improved its competitive position is sufficient to demonstrate prejudice. Hughes STX Corp., B-278466, Feb. 2, 1998, 98-1 CPD ¶ 52 at 11. In this regard, KPMG has reasonably maintained that the agencys misleading discussions precluded the firm from proposing its own cost-saving approach. See Second Supp. Protest (Mar. 26, 2012) at 20-22; Third Supp. Protest (Apr. 16, 2012) at 24, 31. We find this sufficient to establish prejudice. Accordingly, we sustain the protest on this basis.
Inadequate Cost Realism Analysis
KPMG also argues that the CIA failed to conduct a reasonable cost realism analysis as required by the RFP and, instead, accepted the offerors proposed costs without any meaningful analysis. Protest at 38; First Supplemental (Supp.) Protest at 5-8.
Upon reviewing Deloittes proposal under the terms of our Offices protective order, KPMG argued that the evaluators apparently failed to recognize several anomalies in Deloittes cost proposal. For example, KPMG contends that Deloittes cost proposal was based on less-well-qualified replacement personnel beginning at the first option year, in February 2013; that Deloittes cost proposal used labor costs for a subcontractor that were not based on the rate in the subcontractors accompanying cost proposal; and that Deloittes own labor costs were not based on specific personnel, but instead reflected [deleted] rates for personnel--apparently without security clearances. Second Supp. Protest at 16, 38-51; Third Supp. Protest at 23-26 & 46-53; Protesters Final Comments, at 5-15. KPMG further notes that, to the extent the CIA evaluators performed any cost realism analysis on Deloittes proposal, they expressed the view that Deloittes cost savings were not assured and intangible. Under these circumstances, KPMG argues that Deloittes proposed cost could not provide a reasonable basis for the source selection decision here. Second Supp. Protest at 38-42. We agree.
When an agency evaluates proposals for the award of a cost-reimbursement contract, an offerors proposed costs are not controlling since such costs may not accurately reflect the actual costs the government will incur. FAR § 15.404-1(d). While, in conducting an adequate cost analysis, an agency is not required to verify each and every variable, it must reasonably consider the extent to which the costs reflected in the offerors technical approach reflect what the contract should cost, assuming reasonable economy and efficiency. ATLIS Fed. Servs., Inc., B-275065.2, B-275065.3, Feb. 12, 1997, 97-1 CPD ¶ 84 at 8, 10. In this regard, we will review an agencys judgment to see that the agencys cost realism evaluation was reasonable, not arbitrary, and adequately documented. Honeywell Tech. Solutions, Inc., B-400771, B-400771.2, Jan. 27, 2009, 2009 CPD ¶ 49 at 17; Jacobs COGEMA, LLC, B-290125.2, B-290125.3, Dec. 18, 2002, 2003 CPD ¶ 16 at 26. Thus, we will sustain a protest where the cost realism analysis was not adequately documented. E.g., National City Bank, B-287608.3, Aug. 7, 2002, 2002 CPD ¶ 190 at 12-13 (record lacked documentation that technical evaluation board had considered whether awardees proposed staffing reductions realistically conformed to its technical approach).
Here, the CIA asserts that it only needed to consider the realism of the offerors rates, and that it did so. The CIA further maintains that the evaluators statement that Deloittes lower costs were not assured and intangible did not mean that they were unrealistic. Supp. AR (Apr. 5, 2012) at 12-15. The CIA also argues that Deloittes proposed blended direct labor cost rates were permitted by the RFP and were, therefore, realistic. Second Supp. AR (Apr. 24, 2012) at 17-20. Finally, in response to KPMGs challenge that the cost evaluation failed to detect that Deloitte had used lower rates for a subcontractor than the subcontractor itself proposed, the CIA argues that the error is insignificant. Id. at 20-21.
In our view, the record here reflects no meaningful agency consideration of when--or if--Deloittes proposal to transition to less experienced personnel, and the cost reductions associated with that approach, would actually occur. To the contrary, the agency expressly acknowledged that this critical event is not assured and intangible and, because of that, a most probable cost estimate was not done. AR, Tab 16, CET Final Report, at 4. Not only did the agency bypass this issue, but the record indicates that the technical evaluators merely concluded that Deloittes staffing approach posed no issue, and that the cost evaluators took no exception to either offerors direct, indirect, overhead, and general and administrative costs. AR Binder 1, Tab 17, Source Selection Evaluation Board Report, at 3; AR Binder 1, Tab 18, Source Selection Decision, at 4. In short, the agency failed to provide any reasonable basis for estimating the probable costs it will incur under the contract it awarded--a prerequisite to the award of every cost-reimbursement contract by the federal government. See Advanced Research Projects Agency--Recon., B-259479.3, July 18, 1995, 95-2 CPD ¶ 26 at 4; see also FAR § 15.404-1(d)(2).
In light of the clear impact on projected costs of Deloittes approach to performing this contract, as well as the agencys misleading discussions with KPMG regarding its staffing approach, we find the agencys documentation purporting to support its cost evaluation to be inadequate. Accordingly, we sustain the protest on this basis.
RECOMMENDATION
We recommend that the CIA reopen the record; perform a reasonable cost realism analysis regarding the existing proposals; and hold meaningful discussions with both offerors. During discussions, the agency should identify any concerns about the realism of the proposed costs, and clarify whether resumes are required for all personnel over the life of the contract. (We think that clarifying the agencys position on resumes is particularly important since the agency indicated to KPMG during discussions that resumes were required, waived the requirement for Deloitte, and argued here that resumes were not required.) Following the conclusion of discussions, the CIA should request a new round of final proposals, evaluate them (including assessing cost realism), and make a new source selection decision. If KPMG is selected for award, we recommend that the contract awarded to Deloitte be terminated. Finally, we recommend that the CIA reimburse KPMGs costs of filing and pursuing its protest. 4 C.F.R. § 21.8(d)(1). KPMGs certified claim for costs, detailing the time expended and costs incurred, must be submitted to the CIA within 60 days after this decision. 4 C.F.R. § 21.8(f)(1).
The protest is sustained.
Lynn H. Gibson
General Counsel
[1] See generally Federal Acquisition Regulation (FAR) §§ 16.306(d)(2), (4).
[2] The base contract period was to run from February 1, 2012, to January 31, 2013, and similarly for each of the four option years. RFP at 9.
[3] Both sections L and M of the RFP were page numbered separately. To avoid ambiguity, our citations to pages in those sections will be L-[page number] (as above) or M-[page number], respectively.
[4] Specifically, KPMGs proposal provided resumes for [deleted], whose efforts provided a total of 14 FTEs during [deleted]. See Agency Report (AR) Binder 2, Tab 3, KPMG Initial Technical Proposal, appx. A, at A-1 to A-33.
[5] A forward pricing rate recommendation is defined as a rate set unilaterally by the administrative contracting officer for use by the Government in negotiations or other contract actions when forward pricing rate agreement negotiations have not been completed or when the contractor will not agree to a forward pricing rate agreement. FAR § 2.101.
[6] Specifically, [deleted] was factored into only one labor category, while the [deleted] was not used in any of the labor categories. Id.
[7] The government estimate comparison in the record compares each offerors total annual proposed cost to a single total annual government estimate for each year. Id. at 9. The record contains no more detailed government estimate.
[8] Since the attached auditors notes are not numbered, we have continued the numbering from the cost evaluation report, in order to cite to the notes.
[9] As noted above the government estimate in the record consists of annual amounts. It appears this statement refers to the total 5-year cost estimate.
[10] We do not address several of KPMGs arguments because correcting the errors identified above will require the CIA to conduct meaningful discussions, obtain revised proposals, evaluate the revised proposals, and perform an appropriate cost realism analysis. During the course of this protest, the CIA and Deloitte sought dismissal of certain issues. After considering the parties arguments, we informed the parties that two of KPMGs assertions would be dismissed as follows: (1) the assertion that the agency improperly required KPMG to propose 14 FTEs during each year of contract performance is dismissed as an untimely challenge to the terms of the RFP; and, (2) KPMGs challenges to the agencys ratings assigned to Deloittes proposal under the two technical subfactors (which KPMG argued were inherently inconsistent) are dismissed as speculative and lacking a sufficient factual basis. 4 C.F.R. §§ 21.2(a)(1), (f) (2012).
[11] The CIAs assertion, that its use of the word should did not convey a mandatory requirement, is wholly unpersuasive. In the context of the discussions at issue, a reasonable offeror would understand that the agencys discussions established a duty; that is, if KPMG wished to be considered compliant with the RFP, it was required to submit resumes for all proposed personnel for all 5 years of contract performance. As we have noted previously, terms like may and should are capable of expressing a mandate. USIA Underwater Equip. Sales Corp., B-292827.2, Jan. 30, 2004, 2004 CPD ¶ 32 at 4 (solicitation statement that offered item should meet particular standards was a statement of a mandatory term, thus protesters proposal was properly rejected as unacceptable).