TITLE: B-297136.10; B-297136.11, TPL, Inc., June 29, 2006
BNUMBER: B-297136.10; B-297136.11
DATE: June 29, 2006
**************************************************
B-297136.10; B-297136.11, TPL, Inc., June 29, 2006
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: TPL, Inc.
File: B-297136.10; B-297136.11
Date: June 29, 2006
David P. Metzger, Esq., Kristen E. Ittig, Esq., and Michele Mintz Brown,
Esq., Holland & Knight LLP, for the protester.
William R. Stoughton, Esq., Kristen G. Schulz, Esq., David A. Churchill,
Esq., and Kevin C. Dwyer, Esq., Jenner & Block LLP, for General Dynamics
Ordnance and Tactical Systems, Inc., an intervenor.
Robert R. Fleck, Esq., Tara C. Mack, Esq., and Leslie A. Nepper, Esq.,
Department of the Army, for the agency.
Louis A. Chiarella, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. A conflict of interest does not exist merely because the same
contracting agency or contracting agency employees both prepare an
offeror's past performance reference and perform the evaluation of
offerors' proposals.
2. Protest challenging the evaluation of the protester's past performance
is denied where the record establishes that the agency's evaluation was
reasonable and in accord with the stated evaluation criteria.
3. Protest challenging the evaluation of technical proposals is denied
where the record establishes that the agency's evaluation was reasonable
and consistent with the evaluation criteria; a source selection official's
decision not to accept the findings and ratings of agency evaluators is
unobjectionable if otherwise supported by the record.
4. Price/technical tradeoff was reasonable where source selection official
identified technical distinctions between competing proposals and
specifically determined that higher technically rated proposal represented
best value despite higher cost.
5. Protest that the contracting agency was biased against the protester
and conducted the procurement in bad faith is denied where the record does
not contain any evidence of bias or bad faith on the part of the agency.
DECISION
TPL, Inc. protests the award of a contract to General Dynamics Ordnance
and Tactical Systems (GD-OTS) under request for proposals (RFP)
No. W52P1J-04-R-0179, issued by the Army Field Support Command (AFSC),
Army Materiel Command, Department of the Army, for conventional ammunition
demilitarization services. TPL argues that the agency's evaluation of
offerors' proposals was unreasonable, and that the resulting award
decision was improper. TPL also asserts that members of the agency's
evaluation panel had impermissible conflicts of interest because they were
also the source of a past performance reference regarding the offeror.
We deny the protest.
BACKGROUND
The RFP, issued on November 17, 2004, contemplated the award of a
fixed-price contract for conventional ammunition demilitarization and
disposal services for a base year and four 1-year option periods. In
general terms, the statement of work required the contractor to provide
all the necessary material, equipment, property, and personnel to perform
demilitarization and disposal by closed disposal technologies (CDT) for
six families of conventional ammunitions: bombs; cluster bomb units (CBU);
separate loading propelling charges; high explosive, improved conventional
munitions (ICM); high explosive D; and pyrotechnics. Statement of Work
(SOW) sect. C.1.
The RFP set forth the following evaluation factors and subfactors:
+------------------------------------------------------------------------+
|1. Small Business Utilization |
|------------------------------------------------------------------------|
|2. Technical |
|------------------------------------------------------------------------|
| |A. Program Management |
| |---------------------------------------------------|
| |B. Technical Approach |
| |---------------------------------------------------|
| |C. Safety |
| |---------------------------------------------------|
| |D. Environment |
| |---------------------------------------------------|
| |E. Security |
|------------------------------------------------------------------------|
|3. Past Performance |
|------------------------------------------------------------------------|
| |A. Program Management |
| |---------------------------------------------------|
| |B. Schedule/Timeliness |
| |---------------------------------------------------|
| |C. Quality |
| |---------------------------------------------------|
| |D. Small Business Realism |
|------------------------------------------------------------------------|
|4. Price |
+------------------------------------------------------------------------+
RFP sect. M.2.
The solicitation stated that the small business utilization factor was the
most important evaluation criterion, and would be evaluated on a pass/fail
basis. The RFP also stated that the technical factor was less important
than the small business utilization factor, but substantially more
important than past performance, and that price was somewhat less
important than past performance. All nonprice evaluation factors when
combined were significantly more important than price. The RFP also
established that, among the technical subfactors, program management was
somewhat more important than technical approach, and that technical
approach was in turn slightly more important than the safety, environment,
and security subfactors, which were all equal in importance to each other.
Within the past performance evaluation criterion, the program management,
schedule/ timeliness, and quality subfactors were all of equal importance,
and each was significantly more important than small business realism. Id.
Contract award was to be made to the responsible offeror whose proposal
represented the "best value" to the government, based on the consideration
of all evaluation factors. Id. sect. M.1.
Four offerors, including GD-OTS and TPL, submitted written proposals by
the February 4, 2005 closing date; oral presentations regarding each
offeror's technical approach were subsequently held. An Army technical
evaluation team (TET) evaluated offerors' proposals using an adjectival
rating system: excellent, good, satisfactory, marginal, or unacceptable
for the technical factor and subfactors. A separate performance risk
assessment group (PRAG) evaluated offerors under the past performance
evaluation factor and subfactors using the following adjectival rating
system: low performance risk, moderately low performance risk, moderate
performance risk, high performance risk, or neutral.[1]
After the evaluation of offerors' initial proposals, the contracting
officer determined that all offers were in the competitive range. The Army
then held two rounds of discussions, followed by the submission of final
proposal revisions by June 15.[2] The final ratings for GD-OTS and TPL
with regard to the evaluation factors and subfactors were as follows:
+------------------------------------------------------------------------+
| Factor | GD-OTS | TPL |
|--------------------------------+-------------------+-------------------|
|Small Business Utilization | Pass | Pass |
|--------------------------------+-------------------+-------------------|
|Technical | Good | Good |
|--------------------------------+-------------------+-------------------|
|Program Management | Excellent | Excellent |
|--------------------------------+-------------------+-------------------|
|Technical Approach | Good | Good |
|--------------------------------+-------------------+-------------------|
|Safety | Good | Good |
|--------------------------------+-------------------+-------------------|
|Environment | Good | Good |
|--------------------------------+-------------------+-------------------|
|Security | Good | Good |
|--------------------------------+-------------------+-------------------|
|Past Performance | Low | Moderate |
|--------------------------------+-------------------+-------------------|
|Program Management | Moderately Low | Moderate |
|--------------------------------+-------------------+-------------------|
|Schedule/Timeliness | Low | Moderately Low |
|--------------------------------+-------------------+-------------------|
|Quality | Low | Moderately Low |
|--------------------------------+-------------------+-------------------|
|Small Business Realism | Moderate | Moderately Low[3] |
|--------------------------------+-------------------+-------------------|
|Price | $247,373,339 | $211,858,108 |
+------------------------------------------------------------------------+
Contracting Officer's Statement, Sept. 22, 2005, at 7-8.
The source selection authority concluded that the evaluated superiority of
GD-OTS's proposal under the past performance factor outweighed TPL's price
advantage and, on that basis, selected GD-OTS for award; a contract was
awarded to GD-OTS on August 18.
On September 2, TPL filed a protest with our Office asserting that the
agency's evaluation of offerors' proposals was unreasonable and the best
value tradeoff determination improper.[4] TPL also protested that the Army
had apparently relied upon biased sources of information when evaluating
TPL's past performance, including the awardee GD-OTS.[5] Protest, Sept. 2,
2005.
On October 20, the Army provided notice that it was taking corrective
action in response to TPL's protest by reevaluating offerors' proposals
and making a new source selection decision. Letter from Army to GAO, Oct.
20, 2005; Email from Army to GAO, Oct. 20, 2005. Based on the agency's
announced corrective action, we dismissed TPL's September 2 protest
without rendering a decision on the protest's merits. TPL, Inc.,
B-297136.2, B-297136.4, Oct. 26, 2005.
The Army then reevaluated offerors' technical and past performance
proposals, with final revised ratings for GD-OTS and TPL as follows:
+------------------------------------------------------------------------+
| Factor | GD-OTS | TPL |
|--------------------------------+-------------------+-------------------|
|Small Business Utilization | Pass | Pass |
|--------------------------------+-------------------+-------------------|
|Technical | Good | Good |
|--------------------------------+-------------------+-------------------|
|Program Management | Excellent | Excellent |
|--------------------------------+-------------------+-------------------|
|Technical Approach | Good | Good |
|--------------------------------+-------------------+-------------------|
|Safety | Good | Good |
|--------------------------------+-------------------+-------------------|
|Environment | Good | Good |
|--------------------------------+-------------------+-------------------|
|Security | Good | Good |
|--------------------------------+-------------------+-------------------|
|Past Performance | Low | Moderate |
|--------------------------------+-------------------+-------------------|
|Program Management | Moderately Low | Moderate |
|--------------------------------+-------------------+-------------------|
|Schedule/Timeliness | Low | Moderately Low |
|--------------------------------+-------------------+-------------------|
|Quality | Low | Moderate |
|--------------------------------+-------------------+-------------------|
|Small Business Realism | Moderate | Low |
|--------------------------------+-------------------+-------------------|
|Price | $247,373,339 | $211,858,108 |
+------------------------------------------------------------------------+
Contracting Officer's Statement, Apr. 20, 2006, at 8.
The Army appointed a new agency source selection authority, and that
individual subsequently determined that, notwithstanding the TET's rating
of TPL's proposal as excellent under the program management (technical)
subfactor, TPL's proposal only merited a rating of good.
On February 9, 2006, based upon the reevaluation of proposals, the source
selection authority determined that GD-OTS's superiority under both the
technical and past performance evaluation factors outweighed TPL's lower
price, and that GD-OTS's proposal again represented the best value to the
government. Id. at 11-12. TPL then filed a second protest with our Office,
again challenging the contract award to GD-OTS. Protest, Feb. 25, 2006.
On March 1, the Army again informed our Office that it intended to take
corrective action. The agency stated that the source selection authority
had not been provided with certain information submitted by the offerors
and would reevaluate his award decision based on review of this material.
We then dismissed TPL's February 25 protest. TPL, Inc., B-297136.8,
B-297136.9, Mar. 2, 2006.
On March 17, the Army announced for a third time its decision that
GD-OTS's proposal was the best value to the government and, therefore, was
selected for contract award: the source selection authority, having
reviewed and considered all offerors' submissions, again concluded that
GD-OTS's superiority under the technical and past performance evaluation
factors outweighed TPL's lower price. On March 24, TPL filed its current
protest.
DISCUSSION
TPL's protest raises numerous issues that can be grouped into five
categories. First, the protester alleges that the Army's use of a past
performance reference for TPL prepared by the agency employees who
evaluated offerors' proposals constituted an impermissible conflict of
interest. Second, TPL argues that the agency's evaluation of its past
performance was unreasonable. Third, TPL contends that the Army's
evaluation of TPL's technical proposal was improper. Fourth, the protester
alleges that the Army's best value tradeoff determination was unreasonable
and not adequately documented. Lastly, TPL alleges that the Army was
biased against it, and that the evaluation of proposals and source
selection decision were all conducted with a predetermination to award the
contract to GD-OTS.[6] Although we do not here specifically address all of
TPL's arguments about the evaluation of proposals and other agency
actions, we have fully considered all of them and find that they afford no
basis to sustain the protest of the selection decision here.
Conflict of Interest
TPL first argues that the procurement is fatally flawed by an
impermissible conflict of interest. Specifically, TPL asserts that the
same agency organization (if not the same agency employees) that provided
the past performance evaluation of TPL's performance on the prior ID/IQ I
contract also performed the evaluation of offerors' proposals here upon
which the award decision was based. TPL argues that by providing a past
performance evaluation to itself, instead of soliciting past performance
references from other sources, the agency created an impermissible
conflict of interest.[7]
As relevant here, the Federal Acquisition Regulation (FAR) provides as
follows:
Government business shall be conducted in a manner above reproach and,
except as authorized by statute or regulation, with complete
impartiality and with preferential treatment for none. Transactions
relating to the expenditure of public funds require the highest degree
of public trust and an impeccable standard of conduct. The general rule
is to avoid strictly any conflict of interest or even the appearance of
a conflict of interest in Government-contractor relationships.
FAR sect. 3.101-1.
The Joint Munitions Command (JMC) is the Army activity charged with
producing, storing, maintaining, and demilitarizing ammunition for all
military services. JMC is in turn a part of AFSC, whose contracting
activity issued the solicitation here. One of JMC's subordinate
organizations is the JMC Demil Team, the office responsible for the actual
demilitarization and disposal of conventional ammunition. It was the JMC
Demil Team that oversaw the performance of the prior demilitarization
contract, ID/IQ I, and will supervise the contract to be awarded here. As
mentioned above, GD-OTS was the prime contractor for ID/IQ I, while TPL
was a major subcontractor to GD-OTS.
When performing the initial evaluation of past performance, the PRAG
considered TPL's performance under the prior ID/IQ I contract by means of
a past performance reference furnished by GD-OTS.[8] As part of its
corrective action in response to the initial protests, the Army decided
not to consider past performance information from sources that were also
competing offerors and, thus, potentially biased.
When reevaluating offerors' proposals, the Army employed a PRAG with a new
chairperson who was not part of the initial evaluation; the new
chairperson was an employee of the AFSC contracting activity, not JMC. AR,
Tab 27, PRAG II Report, at 8. The new PRAG agreed that TPL's performance
under the prior ID/IQ I contract was relevant to the evaluation of the
offeror's past performance here.[9] Id. at 11. In contrast to the original
past performance evaluation, the new PRAG sought an evaluation of TPL's
performance on the ID/IQ I contract from the government "customer"--the
JMC Demil Team.
The agency evaluation of TPL's performance on the prior ID/IQ I contract
was prepared by the JMC Demil Team leader, who was not himself a TET or
PRAG evaluator. Further, while the JMC Demil Team leader was the employee
designated to provide a consolidated agency reference of TPL's performance
for the ID/IQ I contract, he did so by collecting information from nine
JMC Demil Team employees who had worked on the ID/IQ I contract and had
direct dealings with TPL and knowledge of TPL's performance. Of the nine
employees, four were TET evaluators but none were past performance
evaluators.[10] Contracting Officer's Statement, May 19, 2006, at 1-2; AR,
Tab 29b, JMC Past Performance Questionnaire for TPL.
We have recognized that an actual or apparent conflict of interest may
arise when an agency employee has both an official role in the procurement
process and a personal stake in the outcome. For example, we found that at
least the appearance of a conflict of interest existed where, in the
course of a competitive sourcing study conducted pursuant to the
procedures of Office of Management and Budget Circular A-76, 14 of the 16
agency employees who were responsible for evaluating private-sector
proposals also held positions that were subject to the study (and would be
affected by the outcome of their evaluation). See DZS/Baker LLC; Morrison
Knudsen Corp., B-281224 et al., Jan. 12, 1999, 99-1 CPD para. 19 at 5. We
have also determined that conflicts of interest exist when the same agency
employees serve both in roles that require neutrality (such as drafting
the ground rules of a competition) and roles where advocacy is permissible
(such as assisting one side in the ensuing competition). In Department of
the Navy--Recon., B-286194.7, May 29, 2002, 2002 CPD para. 76 at 8, we
affirmed our view that having the same agency employee write both the
performance work statement (PWS) and in-house proposal created an
impermissible conflict of interest. We found in this regard that where one
competitor (i.e., the agency) had established the ground rules applicable
to all competitors by developing and drafting the PWS, there was a
significant risk of at least a perception that the ground rules were
written in a manner that skews the competition. Id.
Contrary to TPL's assertions, we find no conflict of interest present
here. The record reflects that none of the agency personnel who provided
TPL's past performance reference or who evaluated TPL's proposal held a
position that would be affected by the outcome of the procurement.
Additionally, while certain JMC Demil Team employees did serve in multiple
roles in the procurement process here--as both sources of past performance
information and technical evaluators--both roles were ones that required
neutrality and precluded advocacy. TPL has simply not demonstrated that
because of these multiples roles, the agency employees here were somehow
unable or potentially unable to provide impartial evaluations to the
government. Accordingly, there is no basis to conclude that any of the
evaluators should have been precluded from participating in the evaluation
on account of conflicts of interest.
The protester also contends that the proximity between the agency
employees who prepared the past performance reference for the ID/IQ I
contract and those who evaluated that reference as part of the contract
award determination is the source of the conflict of interest. TPL argues
that because JMC is the procuring activity, it cannot avoid having
impaired objectivity when it evaluates its own remarks regarding TPL's
past performance. We disagree.
Evaluators may consider and rely upon their personal knowledge in the
course of evaluating an offeror's past performance.[11] See Del-Jen Int'l
Corp., B-297960, May 5, 2006, 2006 CPD para. 81 at 7; NVT Techs., Inc.,
B-297524, B-297524.2, Feb. 2, 2006, 2006 CPD para. 36 at 5. Thus, we have
found nothing improper in an agency evaluator also serving as an offeror's
past performance reference where there has been no showing of improper
influence on the evaluation or award determination. NVT Techs., Inc.,
supra. We know of no reason why an evaluator is precluded from considering
past performance information whose source is another agency employee in
the same organizational activity: as incumbent contractors usually submit
proposals for follow-on contracts, it is quite common for one agency
employee to evaluate past performance information that another agency
employee in the same organization prepared. See PharmChem, Inc.,
B-292408.2, B-292408.3, Jan. 30, 2004, 2004 CPD para. 60 at 12; Prime
Envtl. Servs. Co., B-291148.3, Mar. 4, 2003, 2003 CPD para. 57 at 3-4. The
fact that a contracting agency takes into account its own knowledge of
offerors, and in effect "furnishes its own reference," simply does not
constitute a conflict of interest and is not otherwise improper, so long
as the agency's judgments are documented in sufficient detail to show that
they are reasonable and not arbitrary. See Omega World Travel, Inc.,
B-271262.2, July 25, 1996, 96-2 CPD para. 44 at 4; G. Marine Diesel;
Phillyship, B-232619, B-232619.2, Jan. 27, 1989, 89-1 CPD para. 90 at 4-5.
Evaluation of TPL's Past Performance
TPL also protests that the agency's evaluation of its past performance was
unreasonable. For example, the protester contends that, in addition to the
alleged conflict of interest, the Army failed to give adequate
consideration to TPL's mostly favorable past performance references in its
evaluation ratings. TPL points to the fact that while there were four
sources of adverse past performance information, there were nine favorable
past performance references. TPL also contends that the Army failed to
adequately consider the "extensive, cogent, [and] detailed" rebuttals it
submitted in response to adverse past performance information. Protest,
Mar. 24, 2006, at 22. The protester argues that had the agency properly
considered all information, TPL should have received a past performance
rating at least equal to that received by GD-OTS.
Where a solicitation requires the evaluation of offerors' past
performance, we will examine an agency's evaluation only to ensure that it
was reasonable and consistent with the solicitation's evaluation criteria
and procurement statutes and regulations, since determining the relative
merits of offerors' past performance information is primarily a matter
within the contracting agency's discretion. The MIL Corp., B-297508,
B-297508.2, Jan. 26, 2006, 2006 CPD para. 34 at 10; Hanley Indus., Inc.,
B-295318, Feb. 2, 2005, 2005 CPD para. 20 at 4. A protester's mere
disagreement with the agency's judgment is not sufficient to establish
that the agency acted unreasonably. Birdwell Bros. Painting & Refinishing,
B-285035, July 5, 2000, 2000 CPD para. 129 at 5. Our review of the record
leads us to conclude that the agency's evaluation of TPL's past
performance here was both reasonable and consistent with the RFP's
evaluation terms.
The RFP required offerors to submit past performance information as
follows:
Past performance data is required for the offeror, individual team or
joint venture members, and major subcontractors performing critical
functions/tasks (critical functions/tasks are defined as
demilitarization operations). Relevancy will be determined by contracts
of similar size, scope and complexity covering resource recovery,
reutilization, recycling, neutralization, incineration, or any other
treatment process used for munitions, propellant, pyrotechnics,
explosives, or energetics. The time standards for relevant contracts
that must be included are those 1) awarded within five years of the
closing date of this solicitation, or 2) awarded more than five years
ago, but completed within one year of the closing of this solicitation,
and/or 3) ongoing contracts. All relevant Federal Government contracts
meeting the stated time standards shall be included. State and local
Government contracts and/or commercial contracts may be included if the
Federal Government contracts do not demonstrate adequate relevant
experience in all phases of this project.
RFP sect. L.5.2. Regarding the evaluation of offerors' past performance,
the RFP stated:
The PRAG will assess the relative risks associated with an offeror's
likelihood of success in performing the solicitation's requirements, as
indicated by that offeror's record of past performance. When assessing
performance risk, the PRAG will focus its inquiries on the offeror's
record of performance as it relates to the performance of solicitation
requirements. The Government will conduct a performance risk assessment
based on the quality, relevancy and recentness of the offeror's past
performance, as well as that of its major or critical subcontractors, as
it relates to the probability of successful accomplishment of the
required effort. . . . A negative finding under any element may result
in an overall high risk rating.
Id. sect. M.4.2.
The revised PRAG considered a total of 21 references for TPL (13
references for TPL itself and 8 references for proposed subcontractors)
when evaluating the offeror's past performance; this included additional
references received from agency sources when the PRAG deemed the original
past performance reference to be potentially biased. On those occasions
when past performance references contained adverse information, the PRAG
provided TPL with an opportunity to comment, and then took TPL's rebuttals
into consideration in its evaluation. AR, Tab 27, PRAG II Report,
at 26-28. The ratings that the PRAG assigned to TPL's proposal were:
moderate risk as to the program management subfactor; moderately low risk
as to the schedule/ timeliness subfactor; moderate risk as to the quality
subfactor; low risk as to the small business realism subfactor; and
moderate risk overall. Id. at 28.
The PRAG prepared a detailed report with narratives for the past
performance ratings it assigned. For example, with regard to the
evaluation of TPL under the program management subfactor, the PRAG noted
that all but one of the "good" and "excellent" ratings that TPL had
received were for smaller demilitarization contracts, while the "fair"
ratings which TPL had received were for its two largest referenced
contracts. The PRAG found that TPL did not have experience in managing a
series of projects over a period of time of the magnitude required here.
This caused the evaluators some concern that TPL would have difficulty
managing the scope and complexity of the current solicitation. Id., App.
C, at 125. The PRAG's report contained similar detailed narratives for its
ratings of TPL under the schedule/ timeliness subfactor, the quality
subfactor, as well as the overall past performance factor. Id. at 126-33.
We find that the agency's evaluation of TPL's past performance, under all
subfactors as well as overall, was sufficiently documented to show that it
was reasonable and consistent with the stated evaluation criteria.
TPL argues that the PRAG gave insufficient weight to the favorable past
performance references (or conversely, excessive weight to the adverse
past performance references). The protester points out that 9 of the 13
references it received provided a majority of "good" and "excellent"
ratings, but that the positive references were outweighed in the agency's
evaluation by sources that provided "fair" or "marginal" ratings. TPL
argues that by improperly weighting the adverse references, the PRAG's
rating of TPL under the past performance factor and subfactors was
unreasonably low. We disagree.
It is reasonable for an agency to give differing weight to an offeror's
prior contracts based upon their similarity or relevance to the required
effort. See Chenega Tech. Prods., LLC, B-295451.5, June 22, 2005, 2005 CPD
para. 123 at 6; SWR, Inc.--Protests & Costs, B-294266.2 et al., Apr. 22,
2005, 2005 CPD para. 94 at 6. An agency may thus reasonably give less
weight to prior contracts that are found to be less relevant, and greater
weight to prior contracts that are found to have greater relevance. Court
Copies & Images, Inc., B-277268, B-277268.2, Sept. 24, 1997, 97-2 CPD
para. 85 at 5.
As set forth above, the RFP established that the agency's evaluation would
focus on both the quality and the relevance of an offeror's past
performance as it related to the probability of successful performance of
the required effort. RFP sect. M.4.2. The record here reflects that the
PRAG considered the relevance and quality of each of TPL's references when
performing its past performance evaluation. In most instances the PRAG
considered TPL's prior contracts to be smaller in scope than (but
nonetheless relevant to) the SOW here. By contrast, the PRAG considered
TPL's largest reference--the ID/IQ I contract, valued at $23 million--to
be of the "same size, scope and complexity" as the SOW here. The PRAG also
found TPL's second largest reference--contract No. N00164-98-C-0063 for
the reuse of gun propellant, valued at $2.9 million--relevant to the
solicitation. The PRAG gave greater weight in its evaluation to these two
references. We find nothing unreasonable about the PRAG's decision to give
greater weight to the references it reasonably found more relevant.
TPL also argues that the PRAG's key conclusion, that "some doubt" existed
about the offeror's ability to successfully perform project management,
was erroneous. The protester contends that the record plainly demonstrated
its ability to simultaneously perform multiple multi-million dollar
contracts successfully. TPL essentially argues that because it had ably
performed multiple, smaller contracts simultaneously, the PRAG was
required to conclude that this was the same as having managed the
performance of a contract of the size, scope, and complexity of the SOW
here. In our view, this amounts to mere disagreement with the agency's
evaluation, which does not render it unreasonable. Birdwell Bros. Painting
& Refinishing, supra.
TPL also argues that the PRAG failed to adequately consider the rebuttals
it submitted in response to adverse past performance references. The
protester alleges that the rebuttals it submitted effectively and
definitively addressed all the adverse past performance references. TPL
contends that by failing to adequately consider its rebuttals, the PRAG's
evaluation findings and ratings were unreasonable.[12]
Contracting agencies are required to provide an offeror with an
opportunity to address adverse past performance information to which the
offeror has not previously had an opportunity to respond. See FAR sect.
15.306(a)(2). There exists no requirement, however, that the agency find
an offeror's rebuttals conclusive. See ACS State Healthcare, LLC et al.,
B-292981 et al., Jan. 9, 2004, 2004 CPD para. 57 at 41.
The PRAG report here indicates that, although it received many positive
comments from TPL's references, it also received some negative comments
demonstrating deficient performance by TPL in several functional areas
required in the RFP. The past performance questionnaires from TPL's
references show that TPL received a number of positive comments, which the
PRAG identified as strengths in TPL's past performance. See AR, Tab 29,
Past Performance Questionnaires for TPL. The PRAG also received a number
of negative comments; for example, one reference stated that TPL had
problems with the ability to conduct continuous improvement processes
("past experience and survey results indicates that they make improvements
and then slip back, i.e., same safety findings noted on different
occasions"), and another stated that "TPL appeared to experience
difficulty in hiring and retaining qualified safety managers. This led to
periods where little or no safety management existed at the operating
location." Id., Tab 29c, Defense Contract Management Agency (Phoenix
Office) Past Performance Questionnaire for TPL, Tab 29b, JMC Past
Performance Questionnaire for TPL.
TPL was given an opportunity during the competition to specifically
comment upon its adverse past performance information. AR, Tab 30,
Clarifications of Offerors' Past Performance Information. The PRAG found
that although TPL offered a number of explanations and reasons for the
negative comments of its references, it did not always refute the
existence of the weaknesses identified by the PRAG and in some instances
the information provided by TPL actually substantiated the circumstances
where TPL's past performance was less than acceptable. For example, the
PRAG noted that, in response to the negative comments regarding safety
manager staffing, TPL admitted that safety managers were on site "80% of
the time" during the life of the contract, and that, as it was the
responsibility of the prime contractor to make sure that subcontractor TPL
was in compliance, it was appropriate to blame the prime and not TPL for
TPL's noncompliance. AR, Tab 27, PRAG II Report, at C-126. We see no basis
to object to the PRAG's conclusion that TPL's rebuttals did not refute the
existence of the identified problems and, therefore, we conclude that the
agency's assessment of TPL's past performance was reasonable.
Evaluation of TPL's Technical Proposal
TPL also argues that the agency's evaluation of its technical proposal was
improper. For example, the protester contends that the decision by the SSA
not to accept the TET's rating of TPL's proposal as excellent under the
program management subfactor, and to downgrade the protester's proposal
here to a rating of good, was unreasonable. TPL points to the fact that
the Army did not solicit any additional technical information from
offerors when performing its reevaluation of proposals, and lacking any
new information, there was no basis for the new SSA to come to a different
conclusion than both the technical evaluators and original SSA.
In reviewing an agency's evaluation, we will not reevaluate offerors'
proposals; instead, we will examine the agency's evaluation to ensure that
it was reasonable and consistent with the solicitation's stated evaluation
criteria and procurement statutes and regulations. Urban-Meridian Joint
Venture, B-287168, B-287168.2, May 7, 2001, 2001 CPD para. 91 at 2. An
offeror's mere disagreement with the agency's evaluation is not sufficient
to render the evaluation reasonable. Ben-Mar Enters., Inc., B-295781, Apr.
7, 2005, 2005 CPD para. 68 at 7.
As set forth above, the RFP informed offerors of the evaluation criteria,
the agency's adjectival evaluation rating scheme, and the narrative
definitions of the ratings themselves. With regard to the program
management (technical) subfactor, the solicitation defined the criteria
for an excellent rating as follows:
The offeror's proposed program management plan thoroughly identifies how
program management will integrate all processes, procedures and
management tools necessary to manage risk and schedule, and perform
demil of conventional ammunition in accordance with the statement of
work. . . . The plan thoroughly describes technical program planning and
implementation including quality programs and continuous improvement; .
. . and program and process control measures and/or plans (addressing
integrated program schedule, quality and performance) . . . The
offeror's proposed program management system is capable of effective
management as indicated by its exceptional program management experience
in performing demil operations. In summary, the solicitation
requirements are thoroughly addressed and the proposal exceeds specified
performance or capability and offers significant strengths, innovative
approaches leading to enhanced performance, or overall superior
understanding and management approach; and is coupled with very little
risk and no deficiencies.
RFP sect.M.2.2.1. By contrast, the RFP defined the criteria for a rating
of good under the program management (technical) subfactor as follows:
The offeror's proposed program management plan substantially identifies
how program management will integrate all processes, procedures and
management tools necessary to manage risk and schedule, and perform
demil of conventional ammunition in accordance with the statement of
work. . . . The plan substantially describes technical program planning
and implementation including quality programs and continuous
improvement; . . . and program and process control measures and/or plans
(addressing integrated program schedule, quality and performance) . . .
The offeror's proposed program management system is capable of effective
management as indicated by its superior program management experience in
performing demil operations. In summary, the solicitation requirements
are substantially addressed and the proposal has a high probability of
meeting specified performance or capability and offers strengths, some
innovative approaches leading to enhanced performance, or overall
commendable understanding and management approach; and is coupled with
low risk and no deficiencies.
Id. The essential distinction between the ratings here was the level of
thoroughness and detail in the offeror's program management plan: an
excellent rating was warranted where a proposal thoroughly identified and
addressed all aspects of program management, while a good rating was
warranted where an offeror's program management plan substantially
identified and addressed all program management aspects.
Offerors submitted their technical proposals by means of oral
presentations, which included the use and submission of slides. The TET
then evaluated each offeror's proposal against the stated evaluation
criteria. The TET rated TPL's proposal as excellent as to the program
management subfactor, good as to the technical approach, safety,
environment, and security subfactors, and good overall. AR, Tab 24, TET
Report (July 2005). The original SSA accepted all of the TET's ratings
here as part of his source selection decision. The agency subsequently
conducted a reevaluation of offerors' technical proposals in response to
earlier protests. The TET's ratings of TPL's technical proposal remained
unchanged. Id., TET Report (Jan. 26, 2006).
As set forth above, the agency utilized a new SSA as part of its
reevaluation of offerors' proposals. The new SSA has a master's degree in
procurement and acquisition management and additional post-graduate level
training specifically in program management.[13] AR, Apr. 20, 2006, at 26;
Declaration of New SSA, Apr. 13, 2006, at 1. While the new SSA adopted the
TET's conclusions regarding TPL's proposal under the technical approach,
safety, environment, and security subfactors, he rejected the TET's views
as to the program management subfactor. AR, Tab 10, Source Selection
Decision, at 30. Regarding that factor, the SSA stated:
This assigned rating [of good] differs from the technical team's rating
based on the limited information provided regarding program and process
control measures and/or plans as well as the level to which TPL
demonstrated that they were capable of effective, efficient program
management. For example, TPL provided a notional Integrated Master
Schedule (IMS) as part of their supplemental proposal, but did not go
into detail as to its constituency, standards to which it will be
developed and updated, and how it will be used as a program management
tool. Furthermore, there were several discrepancies in both demil task
durations and start/finish times noted between the IMS and the
individual family schedules provided by TPL's subcontractors. In
addition, TPL scheduled "PMRs" on the IMS, but did not indicate if these
were indeed Program Management Reviews, nor did they indicate if there
would be participation by the Government, nor did they provide any other
detail as to what constituted the PMR and how it would be used as a
program management tool. TPL made mention of a Demil data management
program, however they did not go into detail as to what its capabilities
are and how it will be used as a program management tool. Further, in
their supplemental proposal, TPL documented that they do not yet have
the program in place. TPL also indicated that they will use Microsoft
Project as a scheduling tool, but did not demonstrate that they, or
their subcontractors, are currently capable of using it. . . . Further,
while TPL addresses continual improvement, they indicated that they do
not yet have Six Sigma Process Improvement plan in place. . . . In
accordance with the solicitation criteria for a rating of Good, the
solicitation requirements have been addressed, but not thoroughly
addressed, the risks are low, any weaknesses are manageable without
Government oversight, and there are no deficiencies.
Id. at 5.
In its protest TPL argues that the SSA improperly disregarded the TET's
evaluation of its technical proposal and unreasonably lowered its rating
under the program management subfactor. The protester contends that its
numerous slides provided a detailed discussion of program and process
control measures. TPL argues that the SSA's unilateral reduction of its
rating here, which differed from the careful review of proposals performed
by the TET, lacks a valid rationale.[14]
Adjectival ratings and point scores are but guides to, and not substitutes
for, intelligent decision making. SAMS El Segundo, LLC, supra, at 17. They
are tools to assist source selection officials in evaluating proposals;
they do not mandate automatic selection of a particular proposal. Jacobs
COGEMA, LLC, supra, at 31; PRC, Inc., B-274698.2, B-274698.3, Jan. 23,
1997, 97-1 CPD para. 115 at 12. Those officials have broad discretion in
determining the manner and extent to which they will make use of, not only
the adjectival ratings or point scores, but also the written narrative
justification underlying those technical results, subject only to the
tests of rationality and consistency with the evaluation criteria.
Development Alternatives, Inc., B-279920, Aug. 6, 1998, 98-2 CPD para. 54
at 9; Midwest Research Inst., B-240268, Nov. 5, 1990, 90-2 CPD para. 364
at 4. Where, as here, a higher-level official determines that the
lower-level evaluators' ratings do not reflect the actual technical value
of proposals and the selection decision is protested, the agency must show
that its ultimate determination is reasonable, with sufficient detail to
permit our Office to review the determination for reasonableness.[15] See
KPMG Consulting LLP, B-290716, B-290716.2, Sept. 23, 2002, 2002 CPD para.
196 at 13; Chemical Demilitarization Assocs., B-277700, Nov. 13, 1997,
98-1 CPD para. 171 at 6.
Contrary to the protester's assertions, we find that the SSA's decision
here to rate TPL's technical proposal as good under the program management
subfactor was reasonable and consistent with the stated evaluation
criteria. Under most of the RFP's technical evaluation criteria, SSA
determined that the TET's evaluation ratings accurately reflected the
relative merits of TPL's proposal. As to the program management subfactor,
the SSA provided a detailed written explanation for his decision not to
accept the TET's rating of TPL's technical proposal. The SSA properly
looked behind the adjectival ratings to determine whether the identified
strengths reasonably supported the assigned rating, and whether the
offeror's proposal reasonably supported the identified strengths. The SSA
reasonably determined that TPL's proposal did not have the level of detail
necessary to warrant an excellent rating. While TPL argues that its
proposal did set forth the level of detail necessary to warrant an
excellent rating, and that the deficiencies identified by the SSA in
certain areas (e.g., its Integrated Master Schedule, PMRs, Microsoft
Project capability, and lack of an existing Six Sigma Process Improvement
Plan) were all insignificant ones, in our view, this amounts to mere
disagreement with the agency's evaluation, which does not render it
unreasonable.[16]
The Best Value Determination
TPL also challenges the Army's source selection decision. The protester
asserts that the agency failed to perform a meaningful price/technical
tradeoff as required by the solicitation. In support of its position, TPL
contends that GD-OTS's "miniscule" technical superiority over TPL, as
demonstrated by the evaluation factor and subfactor ratings, failed to
justify the $35 million (or 17 percent) price advantage TPL had over
GD-OTS. The protester also contends that the Army's source selection
decision fails to document why the supposed technical superiority of
GD-OTS's higher-priced proposal warranted the additional cost involved.
Where solicitations provide for award on a "best value" or "most
advantageous to the government" basis, it is the function of the source
selection authority to perform a price/technical tradeoff, that is, to
determine whether one proposal's technical superiority is worth the higher
price, and the extent to which one is sacrificed for the other is governed
only by the test of rationality and consistency with the stated evaluation
criteria. Remington Arms Co., Inc., B-297374, B-297374.2, Jan. 12, 2006,
2006 CPD para. 32 at 15; Chenega Technical Prods., LLC, B-295451.5, June
22, 2005, 2005 CPD para. 123 at 8. Where a price/technical tradeoff is
made, the source selection decision must be documented, and the
documentation must include the rationale for any tradeoffs made, including
the benefits associated with the additional costs.[17] FAR sections
15.101-1(c), 15.308; All Star-Cabaco Enter., Joint Venture, B-290133,
B-290133.2, June 25, 2002, 2002 CPD para. 127 at 8-9.
In conducting the tradeoff here, the SSA first premised his determination
upon review of the relative importance of the RFP's evaluation criteria,
including that all nonprice factors, when combined, were significantly
more important than price. AR, Tab 10, Source Selection Decision, at 3.
The SSA then reviewed the evaluation findings and ratings of the offerors'
proposals under all stated evaluation factors and subfactors. As set forth
above, the SSA accepted the evaluation findings and ratings in most
instances, and on certain occasions (e.g., TPL's proposal under the
program management (technical) subfactor) the SSA reached a different
determination. Id. at 3-29.
The SSA then performed a head-to-head comparison of the highest
technically-rated proposal (GD-OTS) against each of the three other
proposals. In comparing GD-OTS to TPL, the SSA found that GD-OTS's
proposal went into far more detail in the program management (technical)
subfactor, and demonstrated a better grasp of the tools and techniques
required to manage a series of projects over time than did TPL's. Id. at
32. In terms of past performance, the SSA found that GD-OTS's proposal
demonstrated the offeror's effectiveness in managing complex,
multi-faceted projects over time while TPL's proposal demonstrated that it
was challenged by such endeavors. Id. at 34. The SSA concluded as follows:
[T]he GD-OTS proposal was technically superior and offers less
performance risk than does that of TPL. GD-OTS has a more detailed and
thorough program management plan, which is of significant value in
monitoring the status and health of the program in order to perform on
schedule and at cost. In addition, GD-OTS has demonstrated their ability
to manage a complex demil program over time with an enviable delivery
record of 99.5% on time. In contrast, TPL has had problems managing some
of their more complex programs in the past, and have had schedule
problems caused by staffing issues. Further, they have received multiple
safety and security violations at their facility. All of these are
indicators that TPL may require more government oversight to say on
schedule and at cost, which we are not currently staffed to do. In
summary, GD-OTS provides both superior program management effectiveness
and efficiency as well as a much higher probability of program success
as demonstrated by their past performance. In my opinion, this merits
the 17% price premium over TPL's price.
Id. at 35-36.
Contrary to TPL's assertions, we find that the source selection decision
adequately documented the agency's rationale for the tradeoff made,
including the benefits associated with the higher price. The propriety of
such a price/technical tradeoff decision turns not on the difference in
the technical scores or ratings per se, but on whether the source
selection official's judgment concerning the significance of the
difference was reasonable and adequately justified in light of the RFP's
evaluation scheme. Remington Arms Co., Inc., supra, at 16-17; Johnson
Controls World Servs., Inc., B-289942, B-289942.2, May 24, 2002, 2002 CPD
para. 88 at 6. Here, the SSA properly looked behind the evaluation ratings
and considered the underlying qualitative merits that distinguished the
offerors' proposals--program management ability and performance risk.
Consistent with the RFP's provision that nonprice factors when combined
were significantly more important than price, the SSA reasonably concluded
that the price premium associated with GD-OTS's proposal was justified by
its greater technical merit. Under these circumstances, we see no basis to
question the agency's decision to make award to GD-OTS.
TPL's Allegations of Agency Bias
Throughout its protest TPL alleges that the Army was biased against it. In
support thereof, TPL points to an internal agency email message written
prior to the issuance of the RFP, where the JMC Demil Team leader set
forth the problems (e.g., environmental, cash-flow, instances of
non-demilitarized ammunition rounds being shipped as scrap) previously
encountered by small business prime contractors, including TPL, when
recommending that the procurement not include a partial small business
set-aside.[18] TPL Comments, May 19, 2006, exh. A, JMC Email Regarding
Draft Solicitation, at 2. Based upon this email message, TPL contends the
agency intentionally sought out adverse and biased sources of past
performance information for TPL (and when it could not obtain them,
furnished them itself), intentionally manipulated the evaluation record
and evaluation ratings, intentionally created artificial distinctions
between the proposals of GD-OTS and TPL in order to justify the $35
million price premium associated with an award to GD-OTS, and undertook
the reevaluation of offerors' proposal with a predetermined outcome (i.e.,
maintaining the original award to GD-OTS). Protest at 3-4, 12, 14, 16, 28.
Government officials are presumed to act in good faith; we will not
attribute unfair or prejudicial motives to procurement officials on the
basis of inference or supposition. Saturn Landscape Plus, Inc.,
B-297450.3, Apr. 18, 2006, 2006 CPD para. 70 at 3; Pride Mobility Prods.
Corp., B-292822.5, Dec. 6, 2004, 2005 CPD para. 72 at 5. Further, where a
protester alleges bias, it not only must provide credible evidence clearly
demonstrating a bias against the protester or for the awardee, but also
must demonstrate that this bias translated into action that unfairly
affected the protester's competitive position. ABIC Ltd., B-286460, Jan.
12, 2001, 2001 CPD para. 46 at 7-8; Advanced Scis., Inc., B-259569.3, July
3, 1995, 95-2 CPD para. 52 at 17.
TPL has furnished no evidence to support its allegations; it merely infers
bias based on its assumption that one agency official who disfavored small
business concerns as prime contractors improperly skewed the entire
procurement process against TPL based on that opinion. The record
indicates that the JMC employee who authored the email upon which TPL
relies entirely as its proof of bias was not a TET or PRAG evaluator (nor
was he the initial or ultimate SSA) and played no part in the evaluation
of TPL's proposal. Contracting Officer's Statement, May 19, 2006, at 1.
The record also indicates that while the JMC employee here compiled the
JMC Demil Team reference of TPL's performance on the prior ID/IQ I
contract, he did so without adding or deleting any of the comments he
received from those agency employees with first-hand knowledge, and did
not add any comments or scores of his own. Id.; Declaration of JMC Demil
Team Leader, May 9, 2006, at 1. We conclude that TPL has presented no
evidence that the identified individual was motivated by bias against it,
or that any bias was somehow translated into prejudicial action. In sum,
TPL's repeated allegations of agency bad faith in the conduct of the
procurement here are no more than inferences, which do not rise to the
level of proof required to demonstrate that the agency was biased against
it.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] The agency's technical and past performance evaluation rating schemes,
as well as narrative definitions of the ratings themselves, were set forth
in the solicitation.
[2] The other two offerors' proposals are not relevant to the protest here
and will not be discussed further.
[3] The source selection authority subsequently changed TPL's ratings
under the small business realism subfactor from moderately low to neutral,
and the offeror's overall past performance rating from moderate to
moderately low. Contracting Officer's Statement, Sept. 22, 2005, at 9-10.
[4] A second unsuccessful offeror also filed a protest with our Office of
the original contract award to GD-OTS.
[5] TPL was a major subcontractor to GD-OTS under the prior Army
conventional ammunition demilitarization contract, commonly referred to as
"ID/IQ I."
[6] TPL's original protest also raised two additional issues: (1) that the
Army never provided TPL with an adequate opportunity to address the
adverse past performance references; and (2) that the Army's discussions
with TPL regarding the technical aspects of its proposal were not
meaningful. In a conference call conducted with all parties, TPL
subsequently informed our Office that these issues had been abandoned.
[7] TPL also alleges that the Army was motivated by bad faith and bias
regarding both the past performance information furnished and the agency's
evaluation of proposals. Our review of TPL's allegations of agency bias is
set forth separately below.
[8] The PRAG was aware that GD-OTS was also a competitor here, but
considered TPL's performance on ID/IQ I to be relevant to the evaluation
of the offeror's past performance. We note that TPL's proposal listed
GD-OTS as both its customer and point of contact for the work performed on
the ID/IQ I contract. AR, Tab 7, TPL's Proposal, Vol. III, at 17.
[9] TPL's proposal indicated the dollar value of its ID/IQ I contract to
be $23 million, while its next largest past performance reference was less
than $3 million. AR, Tab 7, TPL's Proposal, Vol. III, at 17. By contrast,
TPL's proposed price under the RFP here was $211 million.
[10] TPL also originally argued that the PRAG's consideration of a past
performance reference provided by the Tooele Army Depot (TEAD) constituted
an impermissible conflict of interest because TEAD was an actual
competitor to TPL for demilitarization work. In its report to our Office
responding to the protest, the agency provided the evaluation record,
indicating that the PRAG elected not to use TEAD's reference for TPL (the
PRAG believed that because TEAD had been a subcontractor for GD-OTS under
the ID/IQ I contract, there was a potential for bias in its rating). AR,
Tab 27, PRAG II Evaluation Report, at 33. In its comments to the agency
report, TPL failed to address the agency's response. As a result, we
consider this issue to be abandoned and will not address it. See
Symplicity Corp., B-297060, Nov. 8, 2005, 2005 CPD para. 203 at 5 n.6.
[11] Indeed, in certain circumstances we have concluded that evaluators
are prohibited from ignoring past performance information of which they
are personally aware. See GTS Duratek, Inc., B-280511.2, B-280511.3, Oct.
19, 1998, 98-2 CPD para. 130 at 14; International Bus. Sys., Inc.,
B-275554, Mar. 3, 1997, 97-1 CPD para. 114 at 5 (past performance
information that was personally known to the evaluator but not within an
offeror's proposal was "simply too close at hand" to be ignored in the
agency's evaluation of proposals).
[12] The protester also argues that the SSA failed to acknowledge all of
its "definitive rebuttals" in the source selection decision. Protest, Mar.
24, 2006, at 22. There is no requirement, however, that an SSA restate
each of an offeror's strengths or past performance rebuttals when
comparing proposals and making an award determination. See SAMS El
Segundo, LLC, B-291620, B-291620.2, Feb. 3, 2003, 2003 CPD para. 44 at 18;
Jacobs COGEMA, LLC, B-290125.2, B-290125.3, Dec. 18, 2002, 2003 CPD para.
16 at 22. The record here indicates that, in considering whether any of
the evaluation findings and ratings of the offerors' proposals amounted to
discriminators, the SSA reviewed the PRAG report, which described TPL's
rebuttals. The source selection decision also evidences that the SSA was
fully aware of TPL's rebuttals. Quite simply, the SSA did not fail to take
this aspect of TPL's proposal into account; instead, he found it
unnecessary to restate every rebuttal when accepting the PRAG's findings
and ratings of TPL's past performance and making his award determination.
[13] This individual was also certified by the Department of Defense in
program management and his experience included serving as an assistant
program manager for several major systems acquisitions. Id.
[14] TPL also argues that the SSA failed to credit TPL for program
management strengths it shared with GD-OTS for which the awardee received
recognition. In support thereof, TPL points to the SSA's recognition of
GD-OTS's senior management commitment to the contract, but not that of
TPL. Protest, May 1, 2006, at 22-23. We find the single instance cited by
TPL here does not evidence unequal treatment such that the agency's
evaluation of proposals was unreasonable.
[15] The mere fact that a source selection official's determination is
different from that of the agency evaluators (or even a prior source
selection official's determination) does not by itself make it
unreasonable or improper.
[16] We have also considered TPL's challenges to the agency's evaluation
of proposals under the other technical evaluation subfactors and find them
to be without merit.
[17] This explanation can be given by the source selection authority in
the award decision, or it can be evidenced from the documents on which the
source selection decision is based. TRW, Inc., B-260788.2, Aug. 2, 1995,
96-1 CPD para. 11 at 4.
[18] The email message also stated, "Knowing the past, the program manager
does not want to return to the situation where these small businesses with
problems in the past are once again prime contractors." Id.