B-311126, B-311126.2, B-311126.3, B-311126.4, Savannah River Alliance, LLC, April 25, 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.
Decision
Matter of:
File: B-311126,
B-311126.2, B-311126.3, B-311126.4
Kenneth B. Weckstein, Esq., Tammy Hopkins, Esq., Pamela A. Reynolds, Esq., and Amy T. Kingston, Esq., Brown Rudnick Berlack Israels, LLP, for the protester.
James J. McCullough, Esq., Deneen J. Melander, Esq., Steven A. Alerding, Esq., and William S. Speros, Esq., Fried, Frank, Harris, Shriver & Jacobson, LLP, for Savannah River Nuclear Solutions, LLC, an intervenor.
H. Jack Shearer, Esq., Charmaine A. Howson, Esq., Timothy P. Fischer, Esq., and Jeffrey Galan, Esq., Department of Energy, for the agency.
Sharon L. Larkin, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Agency’s selection of higher-priced, higher-rated proposal for award is reasonable, where the key discriminator between proposals was under the key personnel factor, which was one of the most heavily weighted factors in the evaluation and was “critical” to successful performance, and where the agency reasonably concluded that awardee’s superior key personnel were worth the additional price; protester’s disagreement with the evaluation of multiple other factors and subfactors does not render the evaluation unreasonable.
2. Allegation that a key personnel reference had a personal conflict of interest that tainted the evaluation of key personnel is denied, where the reference was provided by the offeror and did not have an official role in the procurement, and the information provided by the reference had no impact on the evaluation.
3. Allegation that organizational conflicts of interest exist due to the employment of several of the awardee’s key personnel is denied, where any conflict, if it exists, is personal to the employees, and not the organization, and is too speculative to impute to their employers.
DECISION
Savannah River Alliance, LLC
(SRA) protests the award of a contract to Savannah River Nuclear Solutions, LLC
(SRNS), issued by the Department of Energy (DOE) under request for proposals
(RFP) No. DE-RFP09-06SR22470 for the management and operation of the Savannah River
Site, a DOE-owned facility in
BACKGROUND
The Savannah River Site is a 310-square-mile industrial
complex in the southern part of
The RFP sought to restructure the workscope of the
predecessor contract and implement a performance-based contract, whereby the
selected contractor would provide all of the “personnel, facilities, equipment,
materials, supplies, and services” necessary to manage and operate the site and
its mission activities. RFP sect.
C-1.2. Included in the RFP’s scope of
work are environmental closure activities (soil and water remediation,
deactivation and decommissioning, solid waste handling, and nuclear materials
management), Savannah River National Laboratory (SRNL) activities,[1]
National Nuclear Security Administration (NNSA) activities[2] (tritium[3]
operations, nuclear nonproliferation, and radiological assistance), and
landlord/site services (environmental, safety, and health [ES&H], engineering
and construction, operations support, and business services). RFP sect. C-3; AR, Tab E.1, Source Selection
Decision, at 1. The RFP advised offerors
to “challenge the status quo and existing paradigms in formulating and
implementing safe, high quality, timely, and cost‑effective programs and
operations” at the site and encouraged the use of “innovative methods of
accomplishing this Scope of Work consistent with the most efficient and
effective means of performance.” Safety,
also, was identified as an “integral part of mission accomplishment” and
offerors were advised to “systematically integrate safety, security, and
environmental protection into management and work practices at all levels” of
performance. RFP sect. C-1.2.
The RFP provided for the award of a cost-plus-award-fee
contract for a 5-year base period with one 5-year option.
The RFP required the selected contractor to be devoted
entirely to this contract; the contractor was prohibited from performing any
other commercial or government work for the duration of the contract, and was
required to be established as a separate corporate entity from its parent
company.
Both offerors submitted proposals in response to the RFP, and their key personnel participated in oral presentations. The SEB evaluated each offeror’s proposal under each of the evaluation factors, noted a variety of “significant strengths,” “strengths,” and “weaknesses” for each proposal, and assigned proposals the following adjectival ratings:
SRA |
SRNS |
||
Key Personnel (25%) |
Good |
Excellent |
|
Organizational Structure & Management Approach (25%) |
Good |
Good |
|
Technical Management Approach (20%)[5] |
|||
EM Closure Activities |
Good |
Good |
|
SRNL Activities |
Excellent |
Excellent |
|
NNSA Activities |
Good |
Good |
|
Landlord Services & Site Support |
Good |
Good |
|
ES&H (15%) |
Good |
Good |
|
Past Performance (7.5%) |
Good |
Good |
|
Relevant Experience (7.5%) |
Excellent |
Excellent |
|
Evaluated Price |
$424,859,509 |
$473,146,404 |
AR, Tab E.1, Source Selection Decision, at 4.
The SEB compared proposals under the various factors and subfactors and described several areas of distinction, but concluded overall that the proposals were “substantially equivalent” under all but the key personnel factor. For that factor, the SEB concluded that while the two offerors proposed chief executives and laboratory directors who had “substantially equivalent” experience, the rest of SRNS’s key personnel had more “extensive experience,” which the SEB found “important” to meet the performance expectations in the contract. In addition, the SEB concluded that the SRNS team performed better during the oral presentation; as the SEB stated, “SRA did not function as an integrated team and overall was less interactive than the SRNS team,” whereas the SRNS team performed more “effectively, efficiently[,] and seamlessly together[,] with all personnel engaged in some aspect of problem solving, response development and/or presentation for all three [managerial] problems.” AR, Tab B.2, SEB Report, at 19-20.
The SEB reported its findings to the source selection
authority (SSA), who agreed with most of the SEB’s conclusions. For example, the SSA found “no significant
discriminators” between the two proposals under the organizational structure
and management approach, technical management approach, ES&H, past
performance, or relevant experience factors.
The SSA acknowledged that while there were “differing technical
approaches and strengths” in each proposal, as was documented by the SEB, there
were “no discernable advantages between offerors” under these evaluation
factors. AR, Tab E.1., Source Selection
Decision, at 5.
However, for the key personnel factor, the SSA disagreed
in part with the SEB’s conclusions.
Specifically, the SSA disagreed with the SEB’s finding that the
experience of the offerors’ chief executives was substantially equivalent. The SSA found a “substantial difference in
the magnitude of [the chief executives’] past responsibilities” that persuaded
the SSA to conclude that SRNS’s chief executive provided a “greater range of
demonstrated performance” when compared to SRA’s chief executive. This, coupled with the “extensive and
diverse” experience of the other members of the SRNS key personnel team, and
the superior performance of the SRNS team during oral presentations, led the
SSA to conclude that the SRNS team would be better able to satisfy the scope of
work and provide the best value to the government.
It is my determination that the superior executive team proposed by SRNS, with their broader level of federal and commercial experience will challenge the status quo, drive innovation[,] and significantly improve overall site productivity. Based on my experience, a highly capable and high performing senior executive management team is a highly significant factor in achieving productivity improvements and successful problem solving on DOE sites. The SRNS leadership team’s ability to bring in relevant lessons learned as a result of their broader experience base increases the likelihood that innovative practices will be successfully implemented that will result in work being accomplished more efficiently.
The [Savannah River Site] is at a critical juncture in its evolution with the implementation of a program strategy that will increase the number of prime contractors on site as well as increase the performance risk for the [management and operations] contractor. Key personnel are critical to successfully and safely manag[ing] the various critical [site] programs and the change ahead for [the site] which requires the best and brightest management team. Consequently, that is why the key personnel criterion was assigned the relatively high weight of 25%. Therefore, I believe the advantages in leadership, innovation, efficiency, and productivity improvements possible through the superior SRNS Key Personnel team as compared to the SRA team more than outweigh the evaluated price differential of $48.3 million over ten years or $4.8 million per year.
DISCUSSION
SRA complains that the agency should have rated SRA’s proposal higher, and SRNS’s proposal lower, under each of the evaluation factors. SRA contends that the assessment of strengths and weaknesses in the SEB report was unreasonable, unfair, and inconsistent with the RFP. SRA asserts that the source selection decision is flawed because the SSA did not fully consider or document the numerous asserted advantages that SRA’s proposal offers over SRNS’s.[6]
In reviewing protests of an agency’s evaluation, our
Office does not reevaluate proposals, but instead examines the record to
determine whether the agency acted reasonably and in accord with the
solicitation’s evaluation criteria and applicable procurement statutes and
regulations. Cherry Road Techs.;
Elec. Data Sys. Corp., B‑296915 et al.,
In its protest, SRA selectively identifies some of the SEB’s comments in the final report, or isolated comments of a technical advisor or evaluator, and contends that these comments should have resulted in lower ratings for SRNS’s proposal and higher ratings for SRA’s proposal. However, as discussed below, these arguments ignore the many other comments that support the agency’s evaluation conclusions. In response to the protest, DOE provided a detailed record of its evaluation and source selection decision, which shows that the agency evaluated the relative merits of the proposals and assessed ratings in a fair and impartial manner consistent with RFP. Although the source selection decision may not have discussed each and every asserted strength and weakness as the protester would have liked, or agreed with the protester as to the significance of certain identified strengths or weaknesses, the record demonstrates that the SEB and SSA considered all of the information available, and issued a well‑reasoned and rational SEB report and source selection decision that fairly highlighted the key discriminators among the offerors’ proposals. SRA disagrees with the conclusions regarding key discriminators, but as noted above, mere disagreement with the agency’s conclusions is insufficient to sustain a protest. Cherry Road Techs.; Elec. Data Sys. Corp., supra, at 6. Based on our review of the record, including the agency’s discussion and assessment of relative advantages and disadvantages associated with the specific content of proposals, we find the evaluation to be reasonable. Specific challenges raised by SRA are discussed more fully below.[7]
Key Personnel Factor
SRA contends that its key personnel should have been rated
superior to SRNS’s. As stated above, the evaluation of key personnel included
the evaluation of the offerors’ written submissions (including resumes,
reference checks, and letters of commitment) and the offerors’ responses to
three managerial problems during oral presentations. The RFP stated that the written submissions
would be evaluated “for the extent of [the key personnel’s] qualifications and
experience with respect to the functions they are proposed to manage.” Oral presentations were to be evaluated to
determine, among other things, “[w]hether the Offeror’s management team
understands the management challenges created in the problems,” the “observed
interaction and participation of the Offeror’s Key Personnel in dealing with
the presented problems as an integrated team,” and the “quality and
effectiveness of communicating the response.”
RFP sect. M-2(a)(1) and (2).
The RFP identified two required key personnel (chief
executive and SRNL director); the selection of all other key personnel was left
to each offeror’s discretion.
As stated above, the SSA concluded that, overall, SRNS’
key personnel were superior to SRA’s, largely because the agency determined that
the broader, more diverse experience of SRNS’s key personnel (especially with
regard to SRNS’s chief executive) was more advantageous to accomplishing the
RFP’s requirements, and the SRNS team performed better during the oral
presentations. AR, Tab E.1, Source
Selection Decision, at 6-8.
SRA protests the SSA’s favorable recognition of the
diverse backgrounds of the SRNS key personnel, especially with regard to the
chief executive position. According to
SRA, the SSA should have given more favorable consideration to DOE and
site-specific experience; “diversity of experience,” the protester argues, is
an unstated evaluation criteria. Protest
at 27-28. However, the RFP did not require
DOE or site-specific experience, or suggest that incumbency would result in
more advantageous evaluation ratings.
Rather, the RFP contemplated a broad scope of work and encouraged
offerors to be “innovative” in their technical approaches, “challenge the
status quo and existing paradigms,” and adopt practices that foster “continuous
improvement.” RFP sections C‑1.2;
C-1.3. Specifically with regard to the
chief executive, where the SSA found breadth of experience to be a significant
discriminator between the proposals, the RFP required consideration of the
“depth and breadth of his/her qualifications in the management and
administration of organizations.”
SRA contends, also, that four of SRNS’s proposed key personnel [REDACTED] lacked essential experience for their positions, which should have translated into weaknesses instead of strengths in the evaluation. In contrast, SRA argues that four of its proposed key personnel [REDACTED] should have been credited with significant strengths. Protest at 20-28; SRA’s Comments at 13-44. In failing to assess SRNS’s proposal weaknesses and SRA’s proposal significant strengths, SRA contends, the agency failed to take into account qualitative differences in the proposals,[10] disregarded the evaluation criteria that required consideration of experience as it relates to the function each individual was proposed to manage, and evaluated offerors’ key personnel disparately.
As an initial matter, we note that the record evidences that the agency took into account qualitative distinctions in the proposals. While it may be true that some of SRA’s key personnel are more experienced than SRNS’s in certain areas, in other areas, SRNS’s personnel were found to be more experienced.[11] Although SRA focuses on a few positions in its protest, it does not challenge the many significant strengths and strengths assessed for the many other identified key personnel in both offerors’ proposals, which resulted in SRNS’s proposal receiving nearly twice as many significant strengths as SRA’s proposal. Also, SRA does not challenge the agency’s evaluation of the oral presentation, and the record shows that the SRNS team performed far better as an integrated unit in responding to the managerial problems than did SRA, thus demonstrating “superior leadership” capabilities to the agency.[12] AR, Tab E.1, SSA Decision, at 7. Based on our review of the record, including the oral presentations, we find the agency’s evaluation of key personnel to be reasonable.
For example, SRA asserts that SRNS’s [REDACTED] lacked [REDACTED] experience, which SRA argues should have translated to a weakness in the evaluation and not a strength. The agency disagreed, explaining in the SEB report that the individual had over 25 years of relevant experience, had managed large staffs with budgets [REDACTED], and had participated in [REDACTED]--all of which the SEB found advantageous to performing the functions he was proposed to manage. The SEB explained, nonetheless, that this experience did not rise to the level of a significant strength because most of the individual’s experience was with [REDACTED]; his [REDACTED] experience, the SEB recognized, was “limited.” AR, Tab B.2, SEB Report, app. A, at 10.
In comparison, the SEB assessed SRA’s [REDACTED] a strength
for possessing [REDACTED] experience, but also determined that this individual
did not deserve a significant strength because he “does not have extensive
experience with [REDACTED].”
Similarly, the agency fairly evaluated both offerors’ proposed SRNL directors. For this position, the RFP provided that, in addition to considering experience and qualifications, the agency would consider the individual’s “recognition for scientific or engineering accomplishments and recognition for successfully managing a multidisciplinary nuclear research and development organization.” RFP sect. M-2(a); see also id. sect. L-4(a)(1) (requiring key personnel to identify “Publications, Awards, Honors, and Professional Recognition”). Both offerors’ proposals received strengths for these positions. For SRNS’s director, the SEB favorably considered his PhD in nuclear engineering, his work experience successfully managing a multidisciplinary nuclear research and development organization, his experience establishing consortia with universities and industry, his strong research background, and the extensive professional recognition he had received for his work. However, the SEB did not assign this individual a significant strength because his experience managing a multidisciplinary organization was “at the division level.” AR, Tab B.2, SEB Report, app. A, at 9-10.
Likewise, SRA’s proposed SRNL director was favorably
recognized for his PhD in health sciences, his experience with several national
laboratories, and his work in forming university alliances. However, the individual had received only
“limited recognition for scientific or engineering accomplishments,” which was
a criteria for evaluation of this factor as stated in the RFP.[14]
The record also confirms that the agency properly assessed
strengths, and not significant strengths or weaknesses, to SRNS’s proposed [REDACTED],
and SRA’s proposed [REDACTED], based on each individual’s more limited
experience as relevant to their proposed functions.
Organizational Structure & Management Approach Factor
SRA contends that SRNS’s proposal should have received a lower rating under the organizational structure and management approach factor because [REDACTED] of SRNS’s proposed key personnel are not directly employed by SRNS, but remain employees of SRNS’s team members.
For evaluation under this factor, the RFP required each
offeror to propose a “management approach (functional organization, lines of
authority, roles and responsibilities, and interface with DOE and NNSA) to
safely and seamlessly perform the Statement of Work . . . and to achieve the
safe and efficient accomplishment of [Savannah River Site] missions.” RFP sect. M-2(b).
The RFP stated that the agency would evaluate each approach for, among
other things, “the extent to which it provides an efficient and realistic
approach to meet the general performance expectations.”[16]
The RFP did not require that key personnel be direct employees of the offeror; it required only that each key personnel provide a 2-year commitment to the contract. RFP sections L‑4(a)(1), M(a)(1). All of SRNS’s key personnel provided a 2-year commitment to the contract without any “contingencies or constraints” on their employment.[18] SRNS’s Second Supp. Comments, Tab 4, Key Personnel Commitment Letters. The RFP required, and SRNS provided, the “Name of [the] Company/Partner [each] Key Person will work for,” thus contemplating that entities other than SRNS could remain as the employer for the individual. RFP sect. L-4(a); see also id. sect. L-4(b) (contemplating that teaming arrangements will be used to perform the work). Although SRA contends that section H-41 of the solicitation, which required that a “separate corporate entity must be set up solely to perform this Contract,” mandates that personnel also be employed by the offeror, no such limitation is stated in section H-41 or elsewhere in the solicitation.
Here, in evaluating the organizational structure and management approach factor, the SEB evaluated each offeror’s management organization, lines of authority, roles and responsibilities, and how the team members would function together as a seamless unit. AR, Tab B.2, SEB Report, at 21-22; id., app. B. As part of this evaluation, the SEB considered the key personnel commitments, corporate guarantees, and the corporate governance structure proposed by SRNS. Contracting Officer’s Statement at 29. Based on this, the SEB found no risks to seamless operation and, instead, reasonably concluded that SRNS’s approach warranted many significant strengths and strengths in the evaluation. Among other things, the SEB found that SRNS’s approach established clear “lines of authority,” “detailed roles and responsibilities,” and a “functional organizational structure” that the agency determined “increases the probability of successful contract performance.”[19] AR, Tab B.2, SEB Report, app. B, at 5. SRA disagrees with this assessment, but has not shown it to be unreasonable.[20]
Technical Management Factor
SRA protests the evaluation of three of the equally-weighted subfactors under the technical management factor: EM closure activities, SRNL activities, and landlord services and site support.[21]
1.
EM Closure Activities
EM closure activities, as described in the statement of
work, include soil and water remediation efforts, deactivation and
decommissioning of facilities and structures, solid waste handling and removal,
and nuclear materials management. RFP sect.
C-3. Offerors’ overall technical
management approaches were to be evaluated “to ensure EM Closure Activities are
conducted in a safe, secure, environmentally sound and fiscally responsible
manner and fully comply with all applicable law, regulations, DOE directives,
and terms and conditions of the contract.”
Each offeror’s proposal was rated “good” under this
subfactor. The SEB found that both
offerors’ proposed approaches, overall, were “substantially equivalent,” even
though proposals “differ[ed] in some areas and in the level of detail
provided.” For example, the SEB noted
that both offerors “demonstrated excellent fiscal responsibility,” but that
SRA’s proposal provided more detail than SRNS’s as to “how all current
nuclear material activities will be conducted in a secure manner.” AR, Tab B.2, SEB Report, at 23-24. With regard to the offerors’ four proposed
innovations, the SEB noted that all “had sound strategies for implementation,”
but that SRA’s two innovations were “more feasible” than SRNS’s. The SEB noted, however, that SRNS’s [REDACTED]
was an “order of magnitude higher [than SRA’s proposed innovations] with
respect to challenging the status quo and could facilitate dramatic change at
[the Savannah River Site].”
SRA contends that the agency’s concerns regarding the
“feasibility” of SRNS’s proposed innovations and the lack of detail in
addressing how nuclear material activities will be conducted in a “secure”
manner (both of which were reflected as weaknesses in the evaluation of SRNS’s
proposal) should have resulted in SRNS’s proposal receiving a lower rating
under the EM closure activities factor, given that feasibility and security
were two elements of the evaluation criteria.
Protest at 33-40. However, the
agency convincingly explains that these weaknesses were not fatal to the
viability of SRNS’s proposed approach.
For example, contrary to SRA’s characterizations, SRNS’s proposal did not
completely fail to address nuclear material security; the proposal simply was
not as detailed as the agency would have liked and was less detailed than SRA’s
proposal. SRNS’s proposal did, however, generally
address security issues in connection with EM closure activities. See Contracting Officer’s Statement at
32; SRNS’s Comments at 68-69. With
regard to the agency’s expressed concerns regarding the feasibility of SRNS’s
proposed innovations, the agency explains that these concerns did not reflect a
lack of viability of SRNS’s proposed innovations, but instead pertained to
scheduling (whether SRNS’s [REDACTED] could be implemented “in the proposed
timeframe”) or issues for which there were possible solutions (SRNS’s [REDACTED]).[23] Supp. Contracting Officer’s Statement
at 14, 17; AR, Tab B.2, SEB Report, app. C, at 8-9.
In any event, the agency considered these weaknesses and
reasonably determined that they were outweighed by numerous other strengths and
significant strengths identified in the evaluation of SRNS’s proposal under
this factor. For example, the SEB found
numerous strengths because SRNS’ proposed approach to EM closure activities was
“safe and fiscally responsible,” “safe and disciplined,” “environmentally sound
and compliant,” and “cost effective”[24] AR, Tab B.2, SEB Report, app. C, at 6-7. In addition, SRNS’s proposed innovations
received significant strengths because they “significantly challeng[ed] the
status quo”[25]
and had “great potential to positively impact” the EM closure workscope.[26]
2.
SRNL Activities
As stated above, the SRNL is a DOE operated and federally funded research and development laboratory. RFP sect. C-1.1. The RFP provided that proposals would be evaluated under the SRNL subfactor for “completeness, balance, and feasibility” to develop the SRNL “into a multi-program world class National Laboratory while operating safely and maintaining the technical expertise to address emerging DOE scientific challenges.” This evaluation was to include, among other things, consideration of the offeror’s approach to “building external collaborations, and employing innovative or best-in-class approaches.” RFP sect. M‑2(c)(2).
Each offeror’s proposal was rated “excellent” under this subfactor. Both were found to “provide a good plan for improving [the] SRNL and positioning it for the future,” both “identified excellent potential external collaborations,” and both proposed to position the SRNL as a “distinct business unit.” Although the SEB noted differences in the management approaches, overall it determined that the proposals were “substantially equivalent” under the SRNL subfactor. AR, Tab B.2, SEB Report, at 25‑26.
SRA contends that its proposal should have been rated
superior to SRNS’s under the SRNL subfactor because SRA’s approach to “building
external collaborations” included an “already existing university consortium”
supported by [REDACTED]. First Supp.
Protest at 33. In contrast, SRA argues,
SRNS only offered “plans to form . . . consortiums in the future.”
3. Landlord Services & Site Support
Landlord services and site support activities include
providing engineering and construction management, operations support, and
business services.[28] RFP sect. C-3.4.
For this subfactor, the RFP stated that the agency would
evaluate “the comprehensiveness and feasibility of the Offeror’s proposed plan
to interface with other site contractors and tenant site entities both as it
performs its own work and as it provides landlord services to others in
accordance with Section C-4 of the [statement of work].”
Both proposals were rated “good” under this evaluation
subfactor and were found to be “substantially equivalent.” Both were found to provide a “very well
structured approach to interface with other site contractors and tenants,” and
both reflected a “good understanding of the complexities of the [site]
interfaces in the future as new DOE contracting strategies are
implemented.” AR, Tab B.2, SEB Report,
at 27-28. Both proposals received a significant strength and a strength, and only SRA’s proposal received a weakness. This weakness was assessed because SRA’s
proposal “fail[ed] to discuss how it would fit DOE into” its interface plan,
which was important because “SRA’s direct interface with DOE prime contractors
will have to be coordinated with DOE.”
SRA complains that the assessed weakness reflects consideration of unstated evaluation criteria. According to SRA, the RFP required only coordination with site contractors and did not specify that consideration would be given to “how DOE fit[s] into the interfacing process.” Protest at 48. However, the RFP, in section C-4, clearly contemplates DOE involvement, and thus we find no merit to this protest ground.
ES&H Factor
The RFP required offerors to “conduct a comprehensive
ES&H program that provides for the protection of workers, the public, and
the environment,” and to implement a “program that will ensure that nuclear
safety requirements are implemented consistently across [the site].” RFP sect. C‑3.4(a)(1) and (2). Section M of the solicitation advised
that the agency would evaluate each offeror’s proposed approach “to enhance the
existing ISMS [Integrated Safety Management Systems] for all work on the [site]
and ensure continual improvement in ES&H performance.” In addition, the agency would evaluate
the offeror’s plan for managing the site’s “nuclear safety program.”
Both offerors’ proposals were rated “good” and were found
to have “comparable good approaches” to enhancing the existing ISMS,
implementing ES&H requirements across the site, and managing the site’s
nuclear safety program. After
considering the various strengths, significant strengths, and weaknesses
associated with each proposal, the agency found both proposals to be “substantially
equivalent.” AR, Tab B.2, SEB
Report, at 28-29.
SRA complains that SRNS’s proposal should have been rated lower because the evaluators found that the proposal “lacked understanding” of the implementation of the ISMS and DOE’s hierarchy of controls for safety systems, which SRA asserts “inherently are basic elements of the evaluation criterion for the ES&H factor.” Protest at 54-55. However, SRA misinterprets and mischaracterizes both the evaluation record and SRNS’s proposal. As the agency explains, the SEB identified two weaknesses in SRNS’s proposal under the ES&H factor, both relating to proposal statements that were inconsistent with the RFP. This led the SEB to assess weaknesses because these proposal inconsistencies called into question the offeror’s “complete understanding” of the RFP requirements in particular areas. AR, Tab B.2, SEB Report, app. D, at 5-6. The agency further explains, however, that its review of SRNS’s entire proposal did not evidence a complete lack of understanding, as suggested by SRA. Rather, the proposal included “comprehensive details” and “demonstrated a good understanding” of the requirements, which in fact is reflected in the numerous assigned strengths and significant strengths. Contracting Officer’s Statement at 43-45; AR, Tab B.2, SEB Report, app. D, at 3-5. Nevertheless, the inconsistencies were found to pose a risk to performance, which was duly noted by the SEB in the evaluation.[29] AR, Tab B.2, SEB Report, app. D, at 5. Based on our review of the record, we find no error in the agency’s judgment.
SRA also contends that SRNS failed to provide a plan for managing the site nuclear safety program. Protest at 55. Again, SRA is factually inaccurate. The SEB report noted (as “[n]either a [s]trength nor a [w]eakness”) that SRNS’s proposal “will take the first 30 days of transition to evaluate the [incumbent contractor’s] work scope to prepare a transition plan.” AR, Tab B.2, SEB Report, app. D, at 6. However, contrary to SRA’s characterization, the proposal did include a plan to ensure that nuclear safety work will continue without interruption or reduction of quality, as required by the solicitation. See AR, Tab D.1, SRNS’s Proposal, at 166‑69. Given that the contract transition period is 90 days and SRNS’s proposal meets the RFP requirements, we see no reason why the agency was required to assess a weakness to SRNS’s proposal.
Past Performance & Relevant Experience Factors
SRA challenges the evaluation of past performance and relevant experience, essentially arguing that its performance history and experience were deserving of higher ratings than SRNS’s.
The RFP provided that the agency would evaluate each
offeror’s past performance “to determine the degree to which the quality of the
past performance demonstrates [the offeror’s] ability to successfully perform
the [statement of work].” RFP sect. M‑2(e). Relevant experience was to be evaluated “to
determine the degree to which the similarity and extent of that experience
demonstrates the ability to successfully perform the mission areas of the
[statement of work].”
Because both SRA and SRNS are newly formed entities, the
agency considered the past performance and relevant experience of each of the
team members and, where relevant, their corporate parents. For past performance, the SEB considered
ES&H data (e.g., information on workplace fatalities, and accident
and injury data), past performance questionnaire responses, performance history
in achieving socioeconomic goals, whether prior contracts had been terminated,
and performance evaluations. The SEB
considered both the positive and negative past performance of all of the team
members, and documented its analysis in the SEB report. For relevant experience, the SEB noted
differences in the types of experience for individual team members and major
subcontractors, but concluded that “cumulatively both Offerors overall have
demonstrated extensive experience managing contracts similar to or greater in
size to” the contract requirements here.
AR, Tab B.2, SEB Report, at 33.
With regard to the evaluation of past performance, SRA complains that the agency failed to recognize SRA’s superior team record of ES&H performance as a discriminator in favor of SRA. Second Supp. Protest at 41-47. However, the SEB did, in fact, recognize that SRA’s safety data was superior to SRNS’s. AR, Tab B.2, SEB Report, at 30. Although both offerors’ proposals received strengths for ES&H data because both offerors’ records were “trending positively toward the DOE averages,” Id. at 30; id., app. E, at 2,6, SRNS also received a weakness in recognition of the unfavorable ES&H data concerning one of its team members. AR, Tab B.2, SEB Report, app. E, at 7. Thus, the record shows that the agency recognized differences in ES&H data in the evaluation. In any event, there were numerous other aspects of the agency’s comprehensive past performance evaluation that revealed strengths and weaknesses and an overall record of performance that was “more favorable than unfavorable” for both offerors. AR, Tab B.2, SEB Report, at 33. When all of this information was considered, the agency reasonably found no significant discriminator between proposals under the past performance factor.[30]
With regard to the evaluation of relevant experience, SRA
contends that it has more extensive experience than SRNS in each of the mission
areas of the statement of work, based on the SRA team members’ experience on
the incumbent contract. Protest at
65. The SEB recognized several
significant strengths in the evaluation of SRA’s proposal based on the site‑specific
experience of SRA’s team members from the incumbent contract. AR, Tab B.2, SEB Report, app. F, at 1-4. However, since site‑specific experience
was not required by the RFP, see RFP sect. L-4(f), the agency reasonably
found that the experience of SRNS’s team members was also “highly relevant,” of
“similar scale,” reflected experience in “core competencies,” and thus was
deserving of significant strengths in the evaluation. AR, Tab B.2, SEB Report, app. F, at 5-6. These conclusions were reasonably supported
by detailed explanations in the SEB report identifying the relevant experience
of both offerors’ team members and explaining why the agency believed that the
experience increased the probability of successful performance.
SRA also asserts that the agency improperly considered the
“corporate resources, experience, and past performance” of [REDACTED], because
neither company is a member of the SRNS team.[32] Second Supp. Protest at 64-65; SRA’s First
Supp. Comments at 46‑49; SRA’s Second Supp. Comments at 10-16. This argument is a red herring. While it is true that [REDACTED] is the
signatory to the operating agreement that formed SRNS, SRNS’s proposal makes
clear that [REDACTED] play significant roles in providing resources and
performing work for this contract.
Accordingly, the agency properly considered the experience of both. Cobra Techs., Inc., B-280475 et al.,
Alleged Conflicts of Interest
SRA contends that the key personnel evaluation is tainted by personal and organizational conflicts of interest (OCI) involving an evaluation reference, SRNS’s proposed SRNL director, and several of SRNS’s other key personnel.
SRA first argues that the evaluation was tainted in that one of the individuals who provided references to the SEB in connection with two proposed key personnel provided biased information because she had a personal conflict of interest: at the time of the evaluation, she was married to an employee of one of SRNS’s team members.
The RFP required each proposed key personnel to provide a
reference, and stated that these “reference checks” would be part of the
key personnel evaluation. RFP sect. M‑2(a)(1). One of SRA’s key personnel and one of SRNS’s
key personnel identified a DOE employee as a reference. As was known by SRA at the time of its
proposal submission and during the evaluation, but was not known to the SEB or
SSA, this DOE employee was married to an employee of one of SRNS’s team
members.
During the evaluation, the SEB noted that, with regard to
the one SRA key personnel, the negative reference was inconsistent with the
other positive references, and thus the agency requested additional references,
all of which were positive. As a result,
the SEB “discounted” the negative reference, concluded that the reference
checks for this SRA individual were “[f]avorable,” and rated this SRA
individual a strength in the key personnel evaluation.
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” and a “personal stake in the outcome.” TPL, Inc., B-297136.10, B-297136.11,
SRA also complains that several of SRNS’s proposed key personnel create the potential for OCIs. Specifically, it contends that the SRNL director’s role as the president and owner of a consulting firm “conflicts” with his role as SRNL director for SRNS, and that the director could use information obtained during performance for the competitive advantage of his company and clients in the future. SRA’s Comments at 87. SRA also contends that [REDACTED] of SRNS’s proposed key personnel have “divided loyalty” because they are employed by SRNS’s member companies and not SRNS itself. SRA’s Comments at 83. As discussed below, we do not agree with SRA that the situations it describes with regard to SRNS’s key personnel present the potential for OCIs.
It is true that contracting officers have a duty to avoid,
neutralize, or mitigate potential significant OCIs so as to prevent unfair
competitive advantage or the existence of conflicting roles that might impair a
contractor’s objectivity. Federal
Acquisition Regulation (FAR) sections 9.504(a), 9.505; Aetna Gov’t Health
Plans, Inc.; Found. Health Fed. Servs., Inc., B‑254397.15 et al.,
SRA has not alleged, nor does the record evidence, any facts showing that SRNS or its team member organizations have impaired objectivity or that these entities serve multiple, or conflicting, roles that could lead to an impaired objectivity OCI; nor has SRA alleged that SRNS or its team member organizations had unequal access to information that would render this competition unfair. Rather, SRA argues merely that the individual employees are not adequately committed to SRNS and may use their positions to benefit their employing team member companies, or, in the case of the SRNL director, that he will use information in the future that will benefit his own company.
With regard to the SRNL director, the individual’s
ownership of a consulting business does not appear to “conflict” with his role
as SRNS’s proposed SRNL director, as SRA asserts. The individual has divested himself of all of
his consulting work, except for one unrelated contract which he is performing
as a means of income until this protest is resolved. Declaration of SRNS’s SRNL director para. 5. He and
the other [REDACTED] key personnel have signed commitment letters to work
solely on the Savannah River Site project without any “contingencies or
constraints” on their positions. SRNS’s
Second Supp. Comments, exh. 4, SRNS Key Personnel Commitment Letters. To the extent that SRA asserts that the SRNL
director or others may use information learned during performance to benefit
themselves or their employers in future endeavors, this is speculative and
insufficient to impute any conflict of interest on these individuals or their
employers. See American Mgmt.
Sys., Inc., B‑285645,
In addition, we see no significant potential for OCIs
arising out of the fact that [REDACTED] of SRNS’s key personnel will
remain employees of the team member companies rather than become direct
employees of SRNS. Given that the
employers are team members of SRNS working together to perform the site work,
we agree with the agency that there is unlikely to be any divergence of
interest. Under the incumbent contract,
currently performed by SRA’s team members, the key personnel are employed by
the team members and not the prime contractor, WSRC. OCIs have not arisen under that situation,
and as the agency reasonably explains, OCIs are unlikely to happen here. Contracting Officer’s Statement at 56. The contracting officer here reviewed SRNS’s
disclosures regarding potential OCIs, and reasonably determined that there was
no basis to question these disclosures.
In sum, the evaluation record evidences a comprehensive and well-documented analysis of proposals under each of the evaluation factors, which supports the SSA’s determination that SRNS’s proposal presented the best value to the government, notwithstanding its higher evaluated price. As the SSA explained, key personnel were “critical” to successful performance and implementation of program strategy, which is why SRNS’s superior-rated key personnel were worth the additional cost.
AR, Tab E.1, Source Selection Decision, at 8. Based on our review of the record, we find the SSA’s determination to be reasonable.
The protest is denied.
Gary L. Kepplinger
General Counsel
[1] The SRNL is a DOE operated and federally funded research and development laboratory. RFP sect. C-1.1.
[2]
The NNSA is responsible for supporting the nuclear weapons stockpile programs
and nonproliferation activities on the site.
RFP sect. C-1.1.
[3] Tritium is a radioactive isotope of hydrogen.
[4]
The management and business proposals addressed the non-price factors. RFP sect. L‑4.
[5]
The SEB did not assign overall ratings for the technical management approach
factor.
[6] Several of the protest grounds were raised as supplemental protests, based on information contained in the SEB report and source selection decision that the agency provided in response to the protest. The intervenor requested dismissal of these grounds, arguing that they were untimely raised. The intervenor asserts that SRA had reviewed unredacted copies of the SEB report and source selection decision during the debriefing, and thus SRA was required to raise its protest grounds based on these documents in its initial protest. SRNS’s Request for Partial summary Dismissal, at 2. While it is true that SRA’s representative were allowed to review unredacted copies of the SEB report and source selection decision during the debriefing, the agency limited the review to 3 hours and only permitted five representatives to review the documents. Those representatives were prohibited from taking notes; were not allowed to bring pens, pencils, recording devices, or personal belongings into the review room; and were not allowed to take any materials with them at the end of the 3-hour time frame. Considering that the two documents exceeded 135 single‑spaced pages in length, we do not find that SRA was sufficiently on notice of its bases of protest contained in these documents, from the limited review allowed, so as to give rise to an obligation to protest within 10 days.
[7]
Although we do not discuss each and every argument raised by SRA, we have
considered all of SRA’s arguments and find them to be without merit.
[8]
For example, the SEB assigned SRA’s proposed [REDACTED] a strength and not a significant
strength because, although he posed 25 years of experience in [REDACTED],
including experience at the site, his experience “was for scopes of lesser
complexity than that of the proposed position.”
AR, Tab B.2, SEB Report, app. A, at 4.
[9]
Based on our review of the record, we also find reasonable the SSA’s
determination that SRNS’s proposed chief executive had broader, more diverse
experience than SRA’s proposed chief executive.
[10]
For example, SRA contends that its [REDACTED] is more experienced than SRNS’s [REDACTED],
its SRNL director is more experienced than SRNS’s director, and its [REDACTED] is
more experienced than SRNS’s [REDACTED].
[11]
For example, SRNS’s proposed [REDACTED] was assessed a significant strength and
SRA’s proposed [REDACTED] was assessed a strength, based, in part, on the fact
that SRA’s manager comparatively had fewer years of relevant experience and his
experience was for “scopes of lesser complexity” than that of the proposed
effort. AR, Tab B.2, SEB Report, app. A,
at 4, 9.
[12]
Ultimately, as noted above, oral presentation performance (which was part of
the stated evaluation criteria) became a key discriminator between proposals
under the key personnel factor.
[13]
Although SRA contends that tritium experience is more critical to performance
than budget, real estate, and personnel experience, SRA’s Comments at 30-31,
the agency explains (and the RFP notes) that tritium operations must be
operated as a “defined, severable cost center,” and budget, real estate, and
personnel experience are specifically identified in the RFP as being necessary
to operating a center in this manner. Contracting
Officer’s Statement at 23; see also RFP sect. C‑3.3(a). In addition, SRNS proposed [REDACTED], which
the agency evaluated in accordance with the key personnel evaluation
criteria. See AR, Tab B.2, SEB
Report, app. A, at 7 (giving a significant strength to SRNS’s proposed [REDACTED]
for, in part, his “over 40 years of experience” in support of [REDACTED]); AR,
Tab D.1, SRNS’s Proposal, at 8 ([REDACTED]). SRA complains that the agency did not
similarly evaluate, or give credit for, SRA’s proposed [REDACTED], who
possessed experience that SRA’s key personnel lacked, e.g., First Supp. Protest
at 14, 19-20; SRA’s Comments at 31, but the RFP did not require the evaluation
of [REDACTED] since they were not proposed as key personnel, and SRA did not
provide the information required under the key personnel evaluation criteria
for the agency to evaluate such individuals.
[14]
Although SRA correctly notes that the resume of its SRNL director reflects some
scientific accomplishments, we agree with the agency’s assessment that the vast
majority of the accomplishments are “management focused.” Contracting Officer’s Statement at 18; AR,
Tab C.2, SRA’s Key Personnel Resumes, at 32-34.
[15]
To the extent that SRA complains that the weakness assessed to its SRNL
director was less critical to performance than the weakness assessed to SRNS’s
director, this argument is contrary to the RFP, which specifically stated
that SRNL directors would be evaluated for scientific accomplishments and
recognitions in addition to their qualifications and experience. See RFP sect. M‑2.2(a)(1).
[16]
Also evaluated under the organizational structure and management approach
factor was the offeror’s approach to involving small businesses and
implementing contractor assurance requirements.
RFP sect. M-2(b).
[17]
[REDACTED].
[18]
We find no merit to SRA’s argument that SRNS’s Limited Liability Company
Operating Agreement rendered meaningless the key personnel commitments and was
inconsistent with the solicitation. SRA
contends, in this regard, that the Operating Agreement allows for SRNS’s team
members to “remove” key personnel from SRNS at any time “without approval of
DOE.” SRA’s Third Supp. Protest and
First Supp. Comments at 57-59. This is
not the case. The operating agreement
does not reflect an intention that key personnel will be removed from the
contract, and does not suggest that removal can occur over the objection of
DOE. To the contrary, we find nothing in
the operating agreement that is inconsistent with the solicitation, which
allows for the substitution of key personnel during performance with
contracting officer approval.
[19]
Although the key personnel oral presentation was not considered in evaluating
the organizational structure and management approach factor, we note that SRA’s
management team was less “integrated” and performed less “efficiently and
seamlessly” than SRNS’s team during the oral presentation, which tends to
contradict SRA’s argument that direct employment by the contracting entity
necessarily translates into more “seamless[]” performance. AR, Tab B.2, SEB Report, at 20.
[20]
To the extent that SRA contends that the key personnel evaluation also is
flawed because the agency did not adequately consider the fact that [REDACTED] of
SRNS’s key personnel were not directly employed by SRNS, we similarly find the
protest to be without merit.
[21]
SRA did not protest the fourth subfactor--NNSA activities.
[22]
SRA’s proposed innovations were its “[REDACTED]” and “[REDACTED].” SRNS’s proposed innovations were its “[REDACTED]”
and “[REDACTED].” AR, Tab. B.2, SEB
Report, at 24.
[23]
The agency points out that SRA also received weaknesses for its proposed
innovations. AR, Tab B.2, SEB Report,
app. C, at 4, 6. Although SRA contends
that the weaknesses its proposal received for innovations were less severe than
SRNS’s proposal weaknesses, SRA’s arguments rely on a strict comparison of only
weaknesses and omit any consideration of the variety of strengths and
significant strengths that each offeror’s proposal received, many of which the
protester did not challenge. Considered together, the record supports the
agency’s conclusion that there were no significant discriminators between
proposals under this evaluation subfactor.
[24]
The record does not support SRA’s complaint that the agency did not consider
its proposed cost savings under the technical factor and subfactors, including
EM closure activities. In myriad places,
the agency gives credit to both offerors’ proposals for proposed cost
efficiencies or savings, except where the agency found the savings to be
“speculative” or “unsubstantiated.” See
Contracting Officer’s Statement at 51-55.
The record further shows that both offerors’ proposals were evaluated
similarly in this regard.
[25]
Although SRA contends that the agency should not have given SRNS’s proposed
innovations credit for challenging the status quo, especially since the agency
identified weaknesses based on feasibility, as discussed above, challenging the
status quo was an important objective of the statement of work, and thus was
reasonably considered, and feasibility was only one aspect of the evaluation
under the EM closure activities subfactor.
RFP sections C-1.2, M-2(c)(1).
[26] SRA contends that some of the touted benefits of SRNS’s proposed innovations were unrelated to, or broader than, EM closure activities workscope, and therefore should not have been credited with strengths or significant strengths. Protest at 35‑40; Second Supp. Protest at 33-38. However, the agency has explained, and our review of the record confirms, that each of the benefits credited in the evaluation are related in some way to the broad scope of work for EM closure activities, and thus these benefits were properly considered in the evaluation. To the extent that the agency also credited SRNS’s innovations because, in addition to benefiting EM closure activities, they more broadly benefited other DOE activities, we find nothing in the solicitation that prohibits consideration of the additional benefits, especially where, as here, offerors were encouraged to be “innovative” and “challenge the status quo and existing paradigms” in implementing programs and operations. RFP sect. C-1.2.
[27]
SRA complains that the agency failed to properly consider four items proposed
by SRA under the SRNL subfactor: [REDACTED]. First Supp. Protest at 34 n.17. However, SRA does not explain, and we are
unable to determine, why these should have resulted in a higher rating under
the SRNL subfactor.
[28]
Landlord services and site support also include ES&H activities, but these
activities were evaluated under a separate evaluation factor in the
solicitation.
[29]
SRA’s proposal was similarly assessed a weakness based on proposal
inconsistencies with regard to contractor oversight. SRA contends that these inconsistencies were
mere “clerical errors,” but the agency reasonably considered the proposal
statements to be discrepancies in the proposal and not clerical errors. Contracting Officer’s Statement at
46-48.
[30] SRA also complains that the agency improperly considered negative past performance of one of SRA’s team members regarding allegations of [REDACTED], failed to consider negative past performance of one of SRNS’s team members with regard to a licensing issue, and did not sufficiently downgrade SRNS’s proposal for the negative past performance of one of its team members relating to socioeconomic programs. The record shows that the agency reasonably considered the information before it; we find no error in these aspects of the evaluation.
[31] SRA points to two tables attached to the SEB report that, for each offeror, listed the team members’ prior contracts and then identified how many of the statement of work activities that each of those contracts had covered. Protest at 65. Because the SRA team members comprised the incumbent contractor, SRA had more “checked boxes” than SRNS in the tables. However, as the agency reasonably explains, the number of checked boxes is not indicative of who has more relevant experience. In this regard, the agency looked at each prior contract to determine whether it was relevant to the activities that the team member was proposed to perform. Where, for example, a team member of SRNS was proposed only to perform a specific activity, it was not penalized because its prior experience did not include other statement of work activities for which it was not proposed. Thus, even though many of SRA’s team member contracts encompassed multiple areas to a greater extent than SRNS’s team member contracts, this properly was not considered to indicate that SRNS’s team members had less relevant experience. See Supp. Contracting Officer’s Statement at 37-38.
[32]
[REDACTED]. E-Mail from Agency Counsel
to GAO (
[33] Another favorable reference for one of SRNS’s proposed key personnel mentioned to the agency that he was “somewhat concerned about a potential conflict of interest between himself and the proposing contractors.” AR, Tab B.6, Key Personnel Reference Worksheet, at 59. However, we agree with the agency that no conflict existed since the reference was not a federal employee or evaluator, and he did not have a role in the procurement. The information provided was consistent with all other references for this key personnel, does not evidence bias, and was properly considered by the agency.
[34]
A third type of OCI involves “biased ground rules,” which is not at issue in
this case.