Davos Francois

Decision

Matter of:  Davos Francois

File:  B-419973

Date:  October 14, 2021

DIGEST

Protest that agency improperly required the protester to demonstrate an active certification as a condition for selection is denied.  Rather, because the solicitation expressly established that “an ideal candidate” would have an active certification, the agency reasonably considered whether the protester maintained an active certification as part of its qualitative evaluation of the protester’s credentials. 

Davos V. Francois (Francois), of Miramar, Florida, protests its nonselection under solicitation (Soln.)[1] No. PSC-21-044-INL, issued by the Department of State (DOS) for a contracting officer representative (COR) position in Haiti.  The protester contends it was improperly penalized for not having an active certification.  The protester argues that this error resulted in its nonselection.[2] 

We deny the protest.

BACKGROUND

The solicitation was issued on April 7, 2021, by the DOS, Bureau of International Narcotics and Law Enforcement Affairs (INL) at the U.S. Embassy in Port-au-Prince, Haiti.  INL’s mission is to support the Haitian National Police’s development as a professional and accountable institution capable of managing Haiti’s internal security.  Soln. at 4.[3]  The stated objective of the procurement is for an individual to serve as the COR responsible for providing expert advice, guidance, and direction in the administration of multiple INL contracts, grants, and letters of agreement.  These INL contracts encompass a value of approximately $5 million annually with over 25 personnel on assignment throughout Haiti.  Id. at 4-7.

The solicitation listed minimum qualification (education/experience) requirements associated with the COR position.  Id. at 10-11.  As relevant here, one such requirement is for the applicant to possess a “Contracting Officer’s Representative (FAC-COR) [Federal Acquisition Certification for Contracting Officer’s Representatives] Level II Certification[4] or two years’ experience as a Contracting Officer.”  Id. at 11.  In addition, the solicitation listed training and distance learning requirements for the COR to include the following: 

[c]ompletes the Contracting Officer Representative (COR) distance-learning course through Foreign Service Institute (FSI) within 120 [days] prior to [sic] of arriving at Post.  Obtains/maintains Federal Acquisition Certification Level II - Contracting Officer’s Representative (FAC-COR) Level III Certification within 120 days of arriving at Post. 

Id. at 7.

The solicitation’s instructions to applicants required the submission of a completed Standard Form 171, a resume, evaluation factor responses,[5] and three professional references.  Id. at 3.  The solicitation stated that resumes should be clear, specific, and include sufficient detail for effective evaluation and determination that the applicants possess the experience, education, and qualifications for the position, including job-related training courses, job-related skills, or job-related honors, awards or accomplishments.  Id. at 1-2. 

The solicitation provided that applications would be point-scored under three evaluation factors, with a maximum total score of 70 points:  (1) program oversight (25 points); (2) overseas experience (25 points); (3) technical expertise (20 points).  Id. at 11-12.  In further describing the evaluation scheme, the solicitation stated that the most qualified applicants would be interviewed and the agency would assign a maximum score of 30 points based on the interview performance of each applicant.  Id. at 12. 

The solicitation identified the various attributes that were required and/or desired under each evaluation factor.  For instance, under the program oversight factor, the solicitation contemplated evaluation of an applicant’s:  (1) experience in providing contractor oversight on high dollar and complex contracts; (2) experience in ensuring contract requirements are being fulfilled; and (3) experience in evaluating and documenting contractor performance, especially through a well-developed quality assurance surveillance plan.  The solicitation stated that the “ideal candidate has experience overseeing both construction and non-construction projects.”  Id. at 11. 

Under the overseas experience factor, the solicitation contemplated evaluation of the applicant’s ability to work effectively in Haiti or other similar overseas environments.  The solicitation stated that the “ideal candidate has professional working proficiency in French and/or Creole and demonstrated experience managing U.S. government assistance programs overseas.”  Id.  Under the technical expertise factor, the solicitation contemplated evaluation of the applicant’s comprehensive understanding of contract administration principles, policies, regulations and procedures, including the Federal Acquisition Regulations (FAR).  The solicitation stated that the “ideal candidate has an active FAC-COR Level III certification or five years’ experience as a contracting officer and experience in INL subject areas such as corrections and law enforcement capacity building.”  Id. 

DOS received timely applications from 16 individuals, including Francois, by the May 6 due date.  Contracting Officer Statement at 1.  The agency’s technical evaluation panel (TEP) evaluated applications utilizing the numerical values for the three evaluation factors and prepared a consensus report for the contracting officer.  Agency Report (AR) exh. 2, TEP’s Selection Memorandum at 3-5.  Francois’s application received a score of 60.3 points out of a maximum 70 points.  Id. at 4.  The agency established a competitive range comprised of the four most qualified applicants, including Francois, conducted interviews with each applicant, and assigned points based on their interview performance.  Id. 

Upon completion of the interviews and reference checks, Francois’s application received a final total score of 86 points out of a maximum 100 points.  Id. at 6.  In its report, the TEP summarized its findings, as follows:

[Francois] served as a program manager and COR for INL Port-au-Prince.  He worked on several contracts in that position, including for electrical systems for police facilities, but did not provide information about the total value of the contracts or specific accomplishments related to contract oversight.  He has significant experience in Haiti and speaks Creole.  He held a FAC-COR level II certification, although it is no longer active.  In his interview, the applicant displayed a familiarity with working in Haiti and managing Haitian contractors.  He did not cite many examples of contracts, but did have a good understanding of basic practices to manage contractor performance and ensure paperwork for files is received, including taking a hands-on approach and not accepting delays in paperwork.  He described his willingness to bring flexibility and adaptability to the job, bridge cultural differences, approach the work diplomatically, and think about the big picture.

Id. at 6.

The TEP recommended that the agency negotiate a PSC for the COR position with the highest-rated candidate, who received a total score of 96.7 points out of a maximum 100 points.  Contracting Officer Statement at 8. 

On July 2, the agency notified Francois that his application was not selected and provided a written debriefing on July 6.  Protest exh. 3, Agency Debrief.  In the debriefing, the agency informed Francois that his “application materials fully demonstrated the minimum qualifications outlined in the solicitation” and the agency provided Francois with the TEP’s evaluative findings.  Id.  This protest followed. 

DISCUSSION

The crux of Francois’s protest is that the agency improperly penalized Francois for failing to have an active FAR-COR Level II certification.[6]  Protest at 4.  In support of its allegation, the protester points out that the solicitation only requires applicants to possess a FAC-COR Level II certificate or equivalent past experience as a contracting officer to be considered for the solicited COR position.  Id.  DOS responds that it reasonably evaluated applications and assigned numerical scores in accordance with the stated evaluation factors.  The agency explains that the evaluators made note of Francois’s expired FAC-COR Level II certificate because it was a relevant element of the technical expertise evaluation factor.  The agency further explains that it did not assign the maximum 20 points to the protester’s application because, in its judgment, an applicant who did not possess an active FAC-COR certification might not have the most current knowledge of contract administration principles, policies, regulations, and procedures.  Memorandum of Law at 7-8.

In reviewing protests of an agency’s evaluation of technical proposals, our Office will not reevaluate proposals or substitute our judgment for that of the agency, as the evaluation of proposals is a matter within the agency’s discretion.  Rather, we will review the record to determine whether the agency’s evaluation was reasonable and consistent with the stated evaluation criteria as well as applicable procurement statutes and regulations.  AECOM Mgmt. Servs., Inc., B‑417639.2, B‑417639.3, Sept. 16, 2019, 2019 CPD ¶ 322 at 9.  A protester’s disagreement with the agency’s judgment, without more, is not sufficient to establish that the agency acted unreasonably.  Vertex Aerospace, LLC, B‑417065, B‑417065.2, Feb. 5, 2019, 2019 CPD ¶ 75 at 8. 

Here, Francois’s disagreement with the evaluators’ decision not to assign the maximum 20 points to its application under the technical expertise factor is without merit.  As the agency correctly notes, under the technical expertise factor, the solicitation required an applicant to demonstrate its understanding of contract administration principles, policies, regulations and procedures.  See Soln. at 11.  Although Francois implies that the agency imposed a minimum requirement for applicants to have an active FAC-COR Level II certification, Francois’s argument is factually unsupported by the record. 

To the contrary, the TEP decided that Francois was one of four most qualified applicants, included Francois’s application in the competitive range, and conducted an interview with Francois.  To the extent the agency noted that Francois’s certification was not current, this comment was reasonably in relation to the solicitation’s evaluation criteria, providing that the “ideal candidate” would have “an active FAC-COR Level III certification.”  Id.  On this record, we find the agency’s consideration of the status of Francois’s Level II certification to be reasonable and consistent with the terms of the solicitation.  While the protester disagrees, such disagreement without more, does not establish that the agency’s subjective judgment was unreasonable.  Accordingly, we deny this ground.  See Glacier Tech. Solutions, LLC, B-412990.3, Mar. 15, 2017, 2017 CPD ¶ 91 at 7. 

Alternatively, Francois argues that the evaluation revealed a latent ambiguity between the FAR-COR Level II certification and alternative 2-year experience requirement and that of the FAC-COR Level III certification and alternative 5-year experience requirement.  Specifically, the protester argues there is a latent ambiguity because “‘an ideal candidate will have an active FAC-COR Level III certification’ or equivalent experience, [yet,] the [s]olicitation explicitly says that candidates only have to ‘obtain/maintain’ FAC-COR Level II and III certification.”  Protester’s Comments at 2.  According to the protester, “[i]t does not make sense that the Agency would justify its actions by stating an ideal candidate would already have the certification if the Solicitation only states that the candidate only needs to obtain/maintain the certification.”  Id. 

Our decisions provide that an ambiguity exists where two or more reasonable interpretations of the terms or specifications of the solicitation are possible.  Red Heritage Medical, Inc., B-418934, Oct. 19, 2020, 2020 CPD ¶ 348 at 2; Desbuild Inc., B-413613.2, Jan. 13, 2017, 2017 CPD ¶ 23 at 5; Colt Def., LLC, B-406696, July 24, 2012, 2012 CPD ¶ 302 at 8.  A patent ambiguity exists where the solicitation contains an obvious, gross, or glaring error, while a latent ambiguity is more subtle.  Id.  Where there is a latent ambiguity, both parties’ interpretation of the provision may be reasonable.  Id.; see also SunGard Data Sys., Inc., B-410025, Oct. 10, 2014, 2014 CPD ¶ 304 at 6.  A solicitation requirement is only considered ambiguous when it is susceptible to two or more reasonable interpretations.  Plum Run, B-256869, July 21, 1994, 94-2 CPD ¶ 38 at 4.  The mere allegation that a solicitation is ambiguous or restrictive does not make it so.  Skyline Indus., Inc., B-257340, Sept. 22, 1994, 94-2 CPD ¶ 111 at 4. 

Here, there is no reasonable basis for the protester’s argument that the solicitation contained a latent ambiguity.  The solicitation provisions at issue are not inconsistent and do not yield inconsistent evaluation results, as suggested by the protester, because they serve separate and distinct purposes.  The solicitation established minimum certification levels the selectee must obtain or maintain, and also separately established an evaluation preference for a certain certification or level of experience.  As noted above, the solicitation stated that an applicant for the COR position must possess either a FAC‑COR Level II certification or 2-years’ experience as a contracting officer.  These were the minimum acceptable qualification requirements, i.e., education and experience requirements, necessary to perform the duties and responsibilities associated with the COR position. 

Additionally, the solicitation established that after award, the selectee must “[o]btain/[m]aintain[]” a FAC-COR Level II certification or Level III certification within 120 days of arrival.  Soln. at 7.  For purposes of evaluation, however, the solicitation established that an ideal candidate would have an active FAC-COR Level III
certification, or 5-years of experience as a contracting officer.  These ideal attributes set the benchmark for what the agency considered desirable for the purpose of selecting the most qualified candidate.  Because the different provisions served different purposes, we reject the protester’s argument that the solicitation contained a latent ambiguity. 

The protest is denied.

Edda Emmanuelli Perez
General Counsel