B-310424.2; B-310424.3; B-310424.4, International Business & Technical Consultants, Inc., September 23, 2008
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.
Matter of: International Business & Technical Consultants, Inc.
File: B-310424.2; B-310424.3; B-310424.4
John S. Pachter, Esq., Jonathan D. Shaffer, Esq., Mary Pat Gregory, Esq., and Matthew L. Haws, Esq., Smith Pachter McWhorter, PLC; and Robert Sonenthal, Esq., and Nina G. Nathani, Esq., Sonenthal and Overall, PC, for the protester.
John E. Jensen, Esq., Daniel S. Herzfeld, Esq., and Orest J. Jowyk, Esq., Pillsbury Winthrop Shaw Pittman LLP, for The QED Group, LLC, an intervenor.
Warren D. Leishman, Esq., Adam J. Bushey, Esq., and Elizabeth A. Ransom, Esq., Agency for International Development, for the agency.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest challenging agency’s evaluation of protester’s technical proposal is denied where record demonstrates that evaluation was reasonable and consistent with stated evaluation criteria.
2. Protest that agency failed to hold meaningful discussions with protester is denied where record shows that discussions either were adequate to lead protester into areas of its proposal with which agency was concerned, or that allegations concern minor weaknesses that agency was not required to discuss.
3. Raising limited cost-related questions with awardee during second round of discussions, while requesting protester’s revised proposal without further questions, did not constitute improper disparate discussions; agency conducted detailed initial discussions with both offerors and found revised proposals acceptable, and only remaining questions concerned matters unique to awardee’s cost proposal.
DECISION
International Business & Technical Consultants, Inc. (IBTCI)
protests the award of a contract to The QED Group under request for proposals
(RFP) No. M-OAA-DCHA-DOFDA-06-1568, issued by the Agency for International
Development (AID) for contractors to implement anticorruption programs pursuant
to AID’s Encouraging Global Anticorruption and Good Governance Efforts (ENGAGE)
program. IBTCI asserts that the agency
improperly evaluated its technical proposal and failed to provide it with
meaningful discussions.
The solicitation
provided for the award of up to five contracts, including one set aside for
small business concerns, the award in issue here. The solicitation provided that award under the
set-aside would be made on a “best value” basis considering the following
evaluation factors: technical understanding
(with subfactors for technical soundness of analysis/proposed programmatic
strategies, inclusion of innovative approaches, understanding of different
strategic approaches, and understanding of issues through discussion of
specific relevant experiences); institutional capability (ability to evaluate
country conditions, ability to implement and manage multiple complex
international governmental integrity and anticorruption projects, ability to
maintain relationships with host country counterparts, and ability to monitor
implementation and impact of multiple complex projects); personnel (background,
skills, and experience of proposed management personnel, the senior technical
advisor and the contract manager, and background skills and experience of candidates
proposed in each functional labor category); past performance; small
disadvantaged business (SDB) participation program; and price. RFP sect. M.
Three small
business offerors submitted proposals and, following discussions and the
submission and evaluation of final proposal revisions, QED’s proposal was
ranked first technically with a score of 62.69 and a price of $5,771,170, and
IBTCI’s was ranked second with a score of 57.14 and a price of $5,646,280. The agency performed a best value analysis
and selected QED for award. IBCTI
protests that decision.
TECHNICAL
EVALUATION
IBTCI raises
numerous challenges to the evaluation of its technical proposal under each
factor. In reviewing a protest against
an agency’s proposal evaluation, our role is limited to ensuring that the
evaluation was reasonable and consistent with the terms of the solicitation and
applicable statutes and regulations. Phillips
Med. Sys. N. Am. Co., B-293945.2,
Inclusion of
Innovative Approaches Subfactor
Under the
inclusion of innovative approaches subfactor (under the technical understanding
factor), proposals were evaluated, among other things, based on approaches
responsive to complex anticorruption strategies and programming challenges with
regard to political corruption. RFP sect. M
at 12. The agency assigned IBTCI’s
proposal a weakness based on the technical evaluation committee’s (TEC) finding
that “[t]he revised proposal responds . . . with a complete and nuanced
discussion of political corruption and program approaches to address it . . . ,
[but] there is still very little specificity about what programs in the three
categories would look like.” Final Proposal
Evaluation at 3.
IBTCI asserts that,
since the TEC found that its discussion of “political corruption and the
program approaches to address it” was “complete and nuanced,” it was
inconsistent and unreasonable for AID to assign the proposal a weakness for its
discussion of the approaches to addressing political corruption. Protester Comments at 19.
This argument is
without merit. While the agency found
that IBTCI’s proposal provided a complete discussion of political corruption
and program approaches addressing that corruption, it downgraded the proposal
for failing to discuss the details of actual programs that would be implemented. For example, the proposal lists as one type
of program addressing political corruption, “those aimed at creating an
informed, demanding, and democratically oriented electorate.” Revised Proposal at 4. IBTCI’s proposal goes on to state that this
type of program addresses the demand end of the corruption equation, and describes
the benefits of these programs and provides general information about them; for
example, it states that “[m]ost interventions of this kind are carried out in
collaboration with civil society organizations. . . .”
Ability To
Evaluate Country Conditions
Under the ability
to evaluate country conditions subfactor (under the institutional capability
factor), proposals were evaluated based on, among other things, the offeror’s demonstrated
ability to draw on subcontractors and other institutions for expertise and to
develop innovative program approaches to address emerging issues in
anticorruption and government integrity.
RFP sect. M at 12. The agency downgraded
IBTCI’s proposal on the basis that, while it provided information regarding the
experience of its consortium members, their experience was in complementary
program areas, not in comprehensive anticorruption assessments. Final Proposal Evaluation at 4.
IBTCI argues that,
since the RFP did not specifically require offerors to provide examples of
comprehensive anticorruption assessments, it was improper for the agency to
downgrade its proposal for this reason.
The protester also argues that, since the evaluation factor concerns
institutional capability, experience performing any type of comprehensive
assessment should have been given the same evaluation credit as anticorruption
assessments.
The evaluation in
this area was reasonable. First, while
the RFP did not expressly require examples of anticorruption assessment
experience of “subcontractors and other institutions,” such experience clearly
was relevant to addressing the factor as described in the RFP--demonstrated
ability to draw on subcontractors and other institutions for expertise and to
develop innovative program approaches to address emerging issues in
anticorruption and government integrity.
RFP sect. M at 12. The fact that an
RFP does not explicitly provide for considering certain information does not
preclude the agency from considering it where, as here, the information is
reasonably related to or encompassed by the stated criteria. See
MCA Research Corp., B-278268.2,
Background,
Skills, and Experience Subfactor
Under the
personnel factor, the subfactor concerning management personnel called for offerors
to demonstrate the quality and appropriateness of the background, skills, and
experience of, among others, the proposed senior technical advisor (STA),
including professional experience. RFP sect.
M at 13. The RFP advised that overall
credentials and developing country experience would be considered.
AID explains that,
notwithstanding the STA’s physical location, it is important for the STA to
have long-term, on-the-ground experience because the agency believes it
provides useful insights, strengthens capabilities, and broadens understanding
regarding the complexities of working in different cultural and political
contexts, as well as with the unique and varied challenges international
development implementers may face on the ground dealing with sensitive issues
of corruption, government transparency, and imposing oversight mechanisms. Supplemental Agency Report at 2. More specifically, the agency believes that
such experience will aid the STA in designing and providing advice regarding
implementation programs by exposing the STA to many management and relationship
building challenges that are part of implementing long-term, on-the-ground
programs in foreign countries.
In response, the
protester argues that the nature of the experience, not the length of the
experience, should dictate its value.
The protester also argues that, since the agency states that certain
skills and experience “may” rather than “shall” arise from long-term
assignments, the agency itself recognizes that there is no basis for
distinguishing between long- and short-term experience.
The evaluation was reasonable. First,
while the RFP did not specifically distinguish long- from short-term experience,
there was nothing improper in the agency’s considering all experience of the proposed
STA. Again, agencies are required to
identify the evaluation factors and significant subfactors, but they are not
required to identify all areas of each that might be taken into account,
provided that any unidentified areas are reasonably related to or encompassed by the stated criteria. MCA Research Corp., supra. Further, the protester’s semantic argument
based on the agency’s use of the term “may” is disingenuous. The question, in our view, is not whether a
proposed individual definitely would benefit from certain experience, but
whether the agency has established a reasonable nexus between the required
experience and the tasks the individual will perform under the contract. As noted, the agency has fully explained the specific
benefits it believes are to be gained from long-term experience in management
and relationship-building challenges, and the protester has not established
that there is no reasonable nexus between the experience and the contract. While it is implicit, we think, that, as
IBTCI asserts, the nature of the experience is important, that fact does not establish
that the length of the experience is not a valid consideration.
Past Performance
AID evaluated IBTCI’s
past performance on a project in the
This argument is
without merit. The agency explains that
the CTO prepared a draft CPR during IBTCI’s performance of the contract and
sent it to IBTCI for comments. SAR at
9. The CTO took the protester’s
comments, including its dispute of negative ratings, into consideration,
adjusted the ratings, provided a response to the comments, and forwarded the
material to the contracting officer.
SDB Participation Program
Factor
Under the SDB
participation program factor, proposals were evaluated based on the extent to
which SDB concerns were specifically identified, the extent of commitment to using
SDB concerns, the complexity and variety of the work SDB concerns are to
perform, past performance in complying with goals for SDB concerns, monetary
targets for SDB participation, and the extent of SDB participation in terms of
the value of the total acquisition. RFP
sect. M at 14-15. IBTCI questions why its
proposal did not receive full credit under this factor, since it offered a
participation target rate of [DELETED] percent of the total contract value--which
was higher than the target in its initial proposal and addressed a question
under this factor raised by the agency during discussions--and was not assessed
any weaknesses or deficiencies.
The evaluation in
this area was reasonable. First, as noted
above, the evaluation under this factor encompassed a number of considerations,
not just the SDB participation target rate; thus, the fact that IBTCI offered a
particular participation target rate, by itself, does not call into question
the rating under the factor. Moreover,
there is no requirement that a proposal that meets requirements without any
weaknesses receive all available evaluation credit. See Roy F. Weston, Inc., B‑274945
et al.,
DISCUSSIONS
IBTCI asserts that the discussions provided by AID were
inadequate in several respects.
Discussions, when conducted, must be meaningful; that is,
they may not mislead offerors and must identify deficiencies and significant
proposal weaknesses that could reasonably be addressed in a manner to
materially enhance the offeror’s potential for receiving award. Lockheed Martin Corp., B-293679 et
al.,
We have reviewed all of the protester’s arguments and find
them to be without merit. We discuss
several of those arguments below.
Discussion Of Political Corruption
During the initial evaluation, the TEC was concerned with the
adequacy of IBTCI’s discussion of political corruption, and therefore informed IBTCI
during discussions that “[t]he proposal does not adequately address the problem
of political corruption. Please provide
additional discussion of responses to political corruption.” Discussion Questions at 1. In its revised proposal, IBTCI addressed the
question by discussing three categories of political corruption; however, the
agency found that the proposal failed to include details about what anticorruption
programs in the three categories would look like, and assessed a weakness on
this basis. Final Proposal Evaluation at
3. IBTCI asserts that the agency was
required to point out this weakness during discussions. However, it is clear that, by advising the
protester that its proposal “does not adequately address the problem of
political corruption. Please address
additional discussion of responses to political corruption,” the agency led IBTCI
into the area of its concern--the discussion of political corruption. This is all the agency was required to do; it
was not required to point out to IBTCI during a successive round of discussions
that it was not completely satisfied with its response. See Portfolio Disposition Mgmt.
Group, LLC, supra.
Adverse Past Performance Information
IBTCI argues that the discussions were not meaningful
because the agency did not provide the protester with the opportunity to
respond to adverse past performance information concerning the
On
IBTCI argues that
the agency held disparate discussions with it and QED because it pointed out
weaknesses or deficiencies to QED that were in its proposal during the second
round of discussions, but did not similarly point out any weaknesses or
deficiencies to IBTCI.
We find that the discussions were not objectionable. Following the first round of discussions, although the scores of both the awardee (62.69) and the protester (57.14) remained relatively low, the agency considered both proposals technically acceptable for award. Negotiation Memorandum at 10. This being the case, the agency was under no obligation to revisit the issues that had already been addressed when it reopened discussions. See Professional Perf. Dev. Group, B-279561.2 et al., supra. At 5 n.3 (when agency reopens discussions it is not required to advise offerors of continuing concerns in areas that have already been subject of adequate discussions).
In its January 28 letter to QED, the agency asked four
questions related to two cost issues.
The first three questions concerned a new negotiated indirect cost rate
agreement (NICRA) that had not been finalized when QED submitted its revised
proposal. Discussion Letter,
The fourth question raised with QED, which stated that
“Your proposed
The protest is denied.
Gary L. Kepplinger
General Counsel
[1] Under the strategic approach subfactor (under the technical approach factor), AID found that IBTCI’s proposal failed to discuss the impact of weak institutions in rebuilding states. Final Evaluation at 3. In its report, the agency acknowledges that this comment was inaccurate based on an oversight brought about by the poor organization of the protester’s proposal, but maintains that this correction would have no real effect on the overall evaluation of IBTCI’s proposal. AR at 6. As this was only one of several evaluated weaknesses in IBTCI’s proposal under this subfactor, based on the record, there is no reason to believe that it impacted the overall evaluation.
[2]
IBTCI also argues that it was improper for the TEC to rely on the e-mail from
the CTO because the individual had been the CTO for only a short time, and
there is no evidence in the record that she had personal knowledge of the
events on which she based her evaluation or that she consulted with someone
with personal knowledge of the events.
The protester also asserts that the
[3]
IBCTI challenges the point scores its proposal received under various
subfactors. However, since the RFP did
not provide an objective scale under which certain scores would be assigned for
certain proposal elements, this amounts to no more than a disagreement with the
agency’s judgment; this is not sufficient to show that the evaluation was
unreasonable. I.S. Grupe, Inc.,
B-278839,
[4] IBTCI argues that the agency improperly identified as a weakness that its proposed team seemed to be put together on speculation, with team members that have little or no past affiliation with the protester. The agency reports, however, and our review confirms, that this was not considered a major weakness or deficiency in the protester’s proposal. Accordingly, the agency was not required to raise this matter during discussions. See MarLaw-Arco MFPD Mgmt., supra.