complete a short two page analysis of the case study that includes the following elements:
Kevin P. Mullen, Esq., and David E. Fletcher, Esq., Piper, Rudnick, for the protester.
Mike Colvin, Department of Health and Human Services, for the agency.
Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO,
participated in the preparation of the decision.
DIGEST
Protest that agency misevaluated proposals is sustained where record shows that
agency’s evaluation conclusions with respect to protester’s proposal were either
unrelated to the evaluation criteria or without a factual basis, and agency failed to
note two deficiencies in awardee’s proposal.
DECISION
Computer Information Specialist, Inc. (CIS) protests the award of a contract to Open
Technology Group, Inc. (OTG) under request for proposals (RFP) No. NLM-03-
101/SAN, issued by National Library of Medicine, National Institutes of Health (NIH)
to acquire telecommunications support services at the agency’s Bethesda, Maryland
campus. CIS maintains that the agency misevaluated proposals and made an
unreasonable source selection decision.
We sustain the protest.
The solicitation contemplated the award of a requirements contract with fixed
hourly rates to perform telecommunications support services for a base year, with
four 1-year options. The RFP advised that the agency intended to make award on a
“best value†basis, with several non-price factors, collectively, being significantly
more important than price. RFP at 66. The non-price criteria (and their point values,
out of 100 possible points) were: qualifications and availability of personnel (30
points), past performance (30 points), technical competence (20 points), and
management approach (20 points). RFP at 66-67. For pricing purposes, offerors
were to submit fully-loaded, fixed hourly rates for various labor categories, RFP at
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.
Page 2 B-293049; B-293049.2
62; evaluated prices were derived by multiplying the proposed hourly rates by
estimated quantities stated in the solicitation. RFP at 51.
The agency received numerous proposals and, after an initial evaluation, established
a competitive range of four firms, including the protester and the awardee. Agency
Report (AR), exh. 6, at 1-3. The agency conducted discussions with the competitive
range offerors and solicited and obtained revised proposals. The final evaluation
results were as follows:
Offeror Technical Score Estimated Price Acceptability
OTG [deleted] [deleted] [deleted]
Offeror A [deleted] [deleted] [deleted]
Offeror B [deleted] [deleted] [deleted]
CIS [deleted] [deleted] [deleted]
AR, exh. 18 at 2. On the basis of these evaluation results, the agency made award to
OTG, the firm submitting what the agency deemed the highest-ranked, lowest-priced
proposal. Following a debriefing, CIS filed this protest in our Office, asserting that
the agency misevaluated both its and the awardee’s proposals.
In reviewing protests against an agency’s evaluation of proposals, we do not
reevaluate the proposals. Rather, we consider only whether the evaluation was
reasonable and consistent with the terms of the solicitation and applicable statutes
and regulations. CWIS, LLC, B-287521, July 2, 2001, 2001 CPD ¶ 119 at 2. On the
basis of the record here, we find the agency’s evaluation conclusions with respect to
both proposals unreasonable.
CIS
The evaluation record is limited, consisting solely of narrative materials prepared by
the evaluators. Of five evaluators, four prepared only cursory narrative comments to
support their scoring of the initial or revised CIS proposals. The comments that
were prepared during the initial evaluation criticized the proposal principally for not
offering personnel that met all of the solicitation’s minimum personnel experience
requirements.1 This was brought to CIS’s attention during discussions, and CIS
revised its proposal in this area. CIS asserts that it cured this deficiency, and that it
therefore was unreasonable for the final evaluation to reflect a downgrading of the
proposal in the area of personnel qualifications and availability.
1 The RFP divided the contract requirements into seven task areas, six of which
included experience requirements, expressed in terms of years of experience, for the
various personnel categories. For example, under task area 1, program manager, the
proposed program manager was required to have at least 5 years of relevant
experience. RFP, Statement of Work (SOW), at 4.
CLICK HERE TO GET MORE ON THIS PAPER.....Page 3 B-293049; B-293049.2
We agree with CIS. In evaluating the revised CIS proposal, four of the five evaluators
again prepared only cursory narrative materials. In terms of scoring, three of these
four evaluators raised CIS’s score by [deleted] points; the agency’s final consensus
technical evaluation report states that two of the three evaluators increased their
scores based on their conclusion that the CIS proposal now met the personnel
experience requirements, and that the third increased his score based on CIS’s
providing “additional information†in its revised proposal. AR, exh. 7, at 5-6. Among
these four evaluators, two assigned a final overall technical score of [deleted] points
and two assigned a score of [deleted] points. Id. at 7.
The fifth evaluator scored CIS’s revised proposal dramatically differently, reducing
CIS’s score from [deleted] total points initially to [deleted] points on reevaluation.
Unlike the other four evaluators, he prepared extensive narrative materials during
his rescoring of the proposal, AR, exh. 4, at 25-26, and his unedited comments were
ultimately incorporated into the final consensus technical evaluation report, along
with a summary of the other evaluators’ limited comments. AR, exh. 7, at 5. The
agency’s source selection decision document, AR, exh. 18, does not reflect any
critical or independent analysis or evaluation of the proposals by the source
selection official (SSO); instead, it relies entirely upon the numeric scores for
purposes of the agency’s source selection decision. This being the case, the
comments of the fifth evaluator regarding deficiencies in CIS’s proposal represent
the sole support in the evaluation record for the relatively low ranking of CIS’s
revised proposal. This is problematic for the agency because we find that the
conclusions expressed by the fifth evaluator are unreasonable.
The first paragraph of the fifth evaluator’s comments states as follows:
I was dismayed and unfavorably impressed with both the tone and the
substance of the proposer’s response for answers to technical
questions and for additional information. I was shocked with the
pedantry and the profound lack of intellect actually written in the
response. I was disappointed with the visible disregard for manners
and with the actual lack of respect written into and appearing in the
lines of the response. In conscience I cannot recommend that the
government take this proposer or the material presented as a serious
attempt to gain a contract. And I certainly would not wish upon any
government representative the responsibility of confronting or dealing
with any proposer who allows or perhaps promotes such attitudes or
such behavior.
AR, exh.7, at 5.
It is axiomatic that agencies are required to evaluate proposals based solely on the
evaluation factors identified in the solicitation, 41 U.S.C. § 253b(a) (2000), Federal
Acquisition Regulation § 15.305, and that they must adequately document the reasons
for their evaluation conclusions. Future-Tec Mgmt. Sys., Inc.; Computer & Hi-Tech
Page 4 B-293049; B-293049.2
Mgmt., Inc., B-283793.5, B-283793.6, Mar. 20, 2000, 2000 CPD ¶ 59 at 7. The
evaluation factors in the RFP here did not provide for downgrading a proposal based
on the tone of the proposal or the offeror’s manners, attitudes or behavior, and there
is nothing in the minimal evaluation record identifying the criterion applied or
otherwise explaining the basis for the evaluator’s statements. Moreover, having read
the proposal, we are at a loss to understand the basis for the evaluator’s
observations. For example, we are unable to identify any area or aspect of the
proposal that could reasonably be said to demonstrate a “lack of respect†(and, since
the evaluation apparently was based solely on the written submissions, there would
appear to be no other basis for the evaluator’s views). We conclude that this portion
of the fifth evaluator’s comments did not provide a reasonable basis for downgrading
CIS’s proposal.
CLICK HERE TO GET MORE ON THIS PAPER.....The comments next observe that, on page three of the revised proposal, CIS offered
[deleted] in task area 2 (task order management) two individuals who do not meet
the RFP’s experience requirements; the comments go on to reference page 18 of the
proposal in support of the observation that these two individuals are being offered in
task area 2. A review of the proposal language, however, establishes that this
observation is simply incorrect. In this regard, page 3 of CIS’s revised proposal–
responding to the agency’s discussion question relating to the experience of its
proposed personnel– specifically states [deleted]. AR, exh. 15, at 2. These two
individuals are mentioned again on page 18, but only for purposes of describing the
current–as opposed to the proposed–team performing the contract (CIS is the
incumbent for this requirement). We conclude that this aspect of the evaluation
record does not reflect the contents of CIS’s proposal, and thus did not provide a
reasonable basis for downgrading the proposal.
The next portion of the narrative observes that CIS’s past performance is limited in
terms of overall experience, years of experience and number of contracts requiring
similar performance. This observation is made in conclusory terms, with no
supporting detail from the firm’s past performance information. The record shows
that CIS initially cited two prior contracts for purposes of demonstrating its past
performance, one of which was the prior contract for this requirement. During
discussions, the agency asked for additional past performance information, and CIS
provided information about three additional contracts. In each instance, CIS
organized the information by describing the work performed in terms of its
relevance to the seven task areas outlined in the RFP, and included in each of the
listings information relating to each of the seven task areas. CIS’s revised proposal
thus included five past performance references spanning the timeframe 1996 to the
present (approximately 8 years). Since the RFP requested only a list of the last two
contracts performed during the past 3 years, as well as those currently being
performed, RFP at 56-57, CIS appears to have presented information relating to an
adequate number of contracts that appear relevant to the requirement being
solicited. In the absence of some explanation for the fifth evaluator’s conclusory
Page 5 B-293049; B-293049.2
observations indicating why he found otherwise, we find no reasonable basis for the
downgrading of CIS’s proposal in this area.2
The balance of the narrative is devoted to criticism of proposed enhancements
offered by CIS in terms of [deleted]. The narrative criticizes these proposed
enhancements for three principal reasons: the enhancements were not provided
under the firm’s predecessor contract; any efficiencies achieved will benefit the
contractor’s employees, as opposed to government employees; and the proposal
does not state that these enhancements currently exist or explain when they will be
implemented during contract performance. The narrative in this area concludes by
stating: “Therefore, all of that information is no more than a pipe dream, mere vapor
to be disbursed with one’s next breath.†AR, exh. 7, at 5.
Again, these statements are not supported by the record. First, to the extent that the
evaluation criticizes CIS for not providing these enhancements under the
predecessor contract, there is nothing in the record showing that CIS offered the
same enhancements in its previous proposal, or that they were otherwise required
under the earlier contract.
Similarly, nothing in the proposal suggests that these enhancements will not actually
be provided at the commencement of performance. In this regard, the proposed
enhancements are based on CIS’s providing [deleted]. CIS’s proposal addresses the
enhancements as follows:
[deleted]
AR, exh. 13, at 5. Elsewhere, the proposal states:
[deleted]
AR, exh. 13, at 132. As with the areas discussed above, absent some explanation in
the record for the fifth evaluator’s conclusions regarding CIS’s proposed
enhancements, those conclusions are unsupported, and therefore unreasonable.
OTG
CIS asserts that the agency also misevaluated the OTG proposal. According to the
protester, the agency improperly accepted the proposal for award notwithstanding
that it failed to meet two solicitation requirements: the requirement to provide
2 This observation is all the more confusing given that, during the initial proposal
evaluation, the fifth evaluator identified CIS’s past performance as a strength and
stated: “Good experience, especially with NIH.†AR, exh. 4, Initial Evaluation
Worksheet of the Fifth Evaluator.
Page 6 B-293049; B-293049.2
letters of commitment for all of its proposed personnel, and the requirement to
provide a security program plan.
We agree with CIS. Regarding letters of commitment, the RFP provided: “For all
proposed personnel who are not currently members of the offeror’s staff, a letter of
commitment or other evidence of availability is required. A resume does not meet
this requirement.†RFP at 59. OTG proposed 14 individuals not currently employed
by OTG. AR, exh. 8, at 25-52. However, OTG presented only 10 letters of
commitment for these 14 individuals; OTG did not submit letters of commitment for
the other 4 proposed employees.
CLICK HERE TO GET MORE ON THIS PAPER.....The agency asserts that it relied on other language in the OTG proposal in
concluding that OTG had satisfied the requirement for evidence of availability.
Specifically, the agency cites the following language: “Finally we have requested and
received letters of intent from our proposed staff (see Attachment C).†AR, exh. 8,
at 2. This representation did not satisfy the requirement. The statement itself is no
more than a self-serving representation, and in relying on it the agency ignored the
fact that Attachment C to the OTG proposal includes only the 10 letters of
commitment referenced above; Attachment C does not include any evidence of the
availability of the other 4 proposed employees. Under these circumstances, we find
that OTG failed to meet this solicitation requirement.3
As noted, CIS also asserts that the OTG proposal did not include an adequate
security program plan. The agency responds that CIS’s assertion in this respect is
simply disagreement with the agency’s evaluation conclusion, asserting that it
reviewed the information in the OTG proposal and, in its discretion, concluded that
it satisfied the security program plan requirement.
The evaluation in this area was unreasonable. The RFP required offerors to submit a
detailed outline (commensurate with the size and complexity of the statement of
work) of its present and proposed information technology systems security program,
demonstrating compliance with the statement of work’s security requirements, as
well as various statutory and regulatory provisions relating to computer security.
RFP at 61. The RFP cautioned offerors as follows:
3 The agency, in a supplemental report, asserts, without supporting evidence, that the
protester failed to document the availability of three of its proposed employees.
However, the record shows that all three are current employees of CIS; there thus
was no requirement to furnish evidence of availability for these individuals. We note
in any event that CIS’s proposal included a signed letter from each of its proposed
employees–including the three employees mentioned by the agency–in which the
employees commit to their continued availability to perform the requirement in the
event that CIS is awarded the contract. AR, exh. 14, attach. 8.
Page 7 B-293049; B-293049.2
Proposals which merely offer to conduct a program in accordance with
the requirements of the Government’s scope of work will not be
eligible for award. The offeror must submit an explanation of the
proposed technical approach in conjunction with the tasks to be
performed in achieving the project objectives.
CLICK HERE TO GET MORE ON THIS PAPER.....RFP at 59.
The OTG proposal fails to provide the level of detail required by the solicitation. The
firm’s proposed security program is outlined in a half-page portion of its proposal
that is comprised of four short paragraphs. The first paragraph states that OTG and
its subcontractor understand that their personnel may require access to sensitive
data and systems, and that access to these systems and data may require their
personnel to submit to and pass “various levels of investigation before employment
with the government.†AR, exh. 8, at 64. The next paragraph–which includes the
language the agency states it relied upon in finding the OTG proposal acceptable–
states in its entirety:
The OTG/Verizon Team agrees to comply with the AIS (Automated
Information Systems) security requirements set forth in the statement
of work upon receipt of the government furnished DHHS Automated
Information Systems Security Program (AISSP) Handbook. OTG
further agrees to include compliance to these security guidelines in any
subcontract awarded pursuant to the Prime contract.
Id. The next paragraph of the proposal reiterates that OTG understands that its
employees working on the contract will be subject to various background checks,
and the final paragraph states that OTG agrees to adhere to all established security
training and awareness requirements, that its employees will maintain the integrity,
confidentiality, authenticity, availability and nonrepudiation of data processed,
transmitted or stored on systems in use by NIH, and that it agrees to be monitored to
ensure compliance with all security requirements. Id. (OTG, in its revised proposal,
also stated that it understood that its employees would be required to complete
online NIH computer security awareness training, and also that they will be required
to review and become familiar with any security information supplied by the
government during employee orientation. AR, exh. 10, at 16.)
This language does not set forth a technical approach or an explanation of such an
approach, as expressly required by the RFP; it is entirely lacking in any detail
relating to OTG’s information technology security program, and fails to demonstrate
or describe how OTG plans to comply with the various security requirements
(statutes, regulations and agency guidance) called out in the RFP. Rather, the
proposal does little more than agree to conduct a security program in accordance
with the terms of the statement of work; this is precisely the kind of blanket
statement that the RFP cautioned offerors against. Accordingly, we find that there
was no reasonable basis for the agency’s evaluation of the OTG proposal in this area.
Page 8 B-293049; B-293049.2
In view of the foregoing, we conclude that the agency misevaluated the proposals of
both CIS and OTG. We also find that the agency’s misevaluation was prejudicial to
CIS, since there is a reasonable possibility that, but for the agency’s errors, CIS might
have been selected for award notwithstanding its higher price. See McDonald-
Bradley, B-270126, Feb. 8, 1996, 96-1 CPD ¶ 54 at 3; see also Statistica v. Christopher,
102 F.3d 1,577, 1,581 (Fed. Cir. 1996). We therefore sustain CIS’s protest. 4
RECOMMENDATION
We recommend that the agency at a minimum reevaluate the proposals of the
competitive range offerors and make a new source selection decision. However, in
light of our finding that the OTG proposal may have been technically unacceptable,
the agency also may elect to reopen discussions and obtain revised proposals.
Should the agency find that another offeror is properly in line for award, we
recommend that the agency terminate the contract awarded to OTG for the
convenience of the government and make award to the firm found to be in line for
award.5 We further recommend that CIS be reimbursed the costs associated with
filing and pursuing its protest, including reasonable attorneys’ fees. 4 C.F.R.
§ 21.8(d)(1) (2003). CIS’s certified claim for costs, detailing the time spent and the
costs incurred, must be submitted to the agency within 60 days of receiving of our
decision. 4 C.F.R. § 21.8(f)(1).
The protest is sustained.
Anthony H. Gamboa
General Counsel
4 CIS also alleges that OTG and its subcontractor Verizon have an organizational
conflict of interest because of prior or current contractual relationships that the two
concerns have with the agency. This aspect of the protest is academic in light of our
recommendation (discussed below) that the agency reevaluate proposals and make a
new source selection decision.
5 The agency executed a determination and finding to continue performance of the
OTG contract notwithstanding CIS’s protest on grounds that urgent and compelling
circumstances significantly affecting the interests of the government would not
permit it to suspend performance of the contract. See 31 U.S.C. § 3553(c)(2) (2000).
Nonetheless, because of the ongoing nature of the requirement, we believe the
agency can implement our recommendation and continue to meet its need for these
services without disruption.
