B-297084, IAP World Services, Inc., November 1, 2005
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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: IAP World Services, Inc.
Michael R. Charness, Esq., and Amy R. Napier, Esq., Vinson & Elkins LLP, for the protester.
William A. Roberts, Esq., Philip J. Davis, Esq., Richard B. O’Keeffe, Esq., Michael S. Caldwell, Esq., and Antonella Karlin, Esq., Wiley Rein & Fielding LLP, for EJB Facilities Services, Inc., an intervenor.
Richard G. Welsh, Esq., and Amy M. Steed, Esq., Naval Facilities Engineering Command, 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. Where solicitation provided for the relative weighting of evaluation factors in the evaluation, rather than mere review for acceptability, agency properly considered extent to which proposals exceeded solicitation requirements.
2. Protest that agency failed to hold meaningful discussions with protester is denied where protester’s proposal was rated at least acceptable under all evaluation categories, and protester does not point to any specific item that agency failed to discuss that kept protester from having a reasonable chance of receiving award.
3. Where agency determined that protester’s price was reasonable, agency was not required to inform protester during discussions that its price was significantly higher than prices of competing offerors and government estimate.
DECISION
IAP World Services, Inc. protests the award of a contract to EJB Facilities Services under request for proposals (RFP) No. N44255-04-R-0003, issued by the Department of the Navy for base operations, security and maintenance for specified facilities in the Navy’s Northwest Region. IAP principally asserts that the agency applied unstated evaluation criteria and failed to provide meaningful discussions.
The solicitation, which included definite-quantity and indefinite-delivery/indefinite-quantity (ID/IQ) items, provided for a “best value” evaluation based on three technical factors--management, past performance/experience, and small business subcontracting (in descending order of importance)--and price (which was approximately equal in weight to the technical factors taken together).
The agency received four proposals, including the
protester’s and the awardee’s. A
technical evaluation board (TEB) evaluated the technical proposals using
adjectival ratings (exceptional, highly acceptable, acceptable, marginal or
unacceptable), and a price evaluation board (PEB) evaluated the price proposals
for overall price, reasonableness, realism and completeness. The TEB and PEB prepared reports for the
source selection board (SSB), which made an award recommendation to the source
selection authority (SSA). Following two
rounds of discussions and the receipt and evaluation of final proposal
revisions, EJB’s proposal was rated highly acceptable for the management and
past performance factors and excellent for small business subcontracting. SSB Report (July 20, 2005) at 2. IAP’s proposal was rated acceptable for
management and small business subcontracting and highly acceptable for past
performance.
UNSTATED EVALUATION CRITERIA
IAP asserts that the Navy improperly applied unstated evaluation criteria in evaluating the technical proposals. Specifically, IAP asserts that, while the RFP provided for technical proposals to be evaluated to ensure that the offeror understands the solicitation requirements, the Navy evaluated the technical proposals based on whether the offeror exceeded the stated requirements or used innovation in responding to them. IAP maintains that this resulted in the improper upgrading of EJB’s proposal evaluation.
Where a solicitation indicates the relative weights of evaluation factors, as opposed to providing for selection of the lowest-priced, technically acceptable proposal, the agency is not limited to determining whether a proposal is merely technically acceptable; rather, proposals may be evaluated to distinguish their relative quality by considering the degree to which they exceed the minimum requirements or will better satisfy the agency’s needs. Israel Aircraft Indus., Ltd., MATA Helicopters Div., B-274389 et al., Dec. 6, 1996, 97-1 CPD para. 41 at 5-6; Meridian Corp., B-246330.3, July 19, 1993, 93-2 CPD para. 29 at 6-7. Here, as the solicitation provided for award on the basis of factors whose relative weights were disclosed, the Navy properly could consider in its evaluation both the extent to which proposals exceeded the RFP requirements and the extent to which offerors used innovative measures to respond to those requirements. The fact that EJB’s proposal received favorable evaluation consideration on these bases thus is unobjectionable.
DISCUSSIONS
IAP asserts that the Navy’s discussions with IAP were not meaningful because it failed to discuss proposal weaknesses and deficiencies that left IAP’s proposal rated only acceptable for seven of nine subfactors under the management factor. IAP further asserts that the Navy improperly failed to inform the firm that its proposal failed to provide innovative solutions or to exceed the solicitation requirements. IAP cites one specific item in this latter regard--its excessive staff, which, according to IAP, substantially inflated its proposed price.
Although discussions must address at least deficiencies and
significant weaknesses identified in proposals, the scope and extent of
discussions are largely a matter of the contracting officer’s judgment. In this regard, we will review the discussions
provided to ensure that the agency pointed out weaknesses that, unless
corrected, would prevent the offeror from having a reasonable chance of
receiving the award. An agency is not
required to afford offerors all encompassing discussions or to discuss every
element that receives less than the maximum score, and is not required to
advise an offeror of a minor weakness that is not considered significant, even
where the weakness subsequently becomes a determinative factor in choosing
between two closely ranked proposals. MarLaw-Arco
MFPD Mgmt., B-291875,
IAP does not point to any weakness or deficiency that
prevented its proposal from being considered fully acceptable or otherwise from
having a reasonable chance of receiving the award. Nor does our review of the record show that
any such weaknesses or deficiencies existed.
Rather, the evaluation record reveals that in the final evaluation the
TEB found only one minor weakness (regarding pre-final inspections) in TEB’s
entire technical proposal.[1] TEB Report, attach. 3, at 3-7. Regarding IAP’s belief that the agency should
have discussed its excessive staffing, the agency did not find the staffing
level excessive or a weakness or deficiency; rather, it found that IAP’s
staffing level was realistic. SSB Report
at 19. The award was ultimately made to EJB, not because IAP’s proposal was deficient, but because EJB’s contained several
elements that the agency found superior, that is, advantageous to the
government. SSB Report at 32-34; SSA
Decision at 1-7. Thus, since there were
no weaknesses or deficiencies that kept IAP’s proposal from being fully
acceptable, or from otherwise having a reasonable chance of being selected for
award, the agency was not required to provide more extensive discussions; it was
not obligated to discuss additional areas simply because the proposal did not
receive the highest possible rating in those areas. American Ordnance, LLC,
B-292847 et al.,
IAP
also complains that the Navy improperly failed to inform IAP that its proposed
price was too high. In this regard, IAP
notes that its proposed price was substantially higher than both the government
estimate (by 34 percent) and EJB’s price (by 21 percent) for the definite-quantity
elements of the RFP, and 39 percent higher than EJB’s price for the ID/IQ
elements.[2]
Where
an offeror’s price is high in comparison to competitors’ prices or the
government estimate, the agency may, but is not required to, address the matter
during discussions. Grove Resource
Solutions, Inc., B-296228, B-296228.2,
ADDITIONAL
ISSUES
IAP
also challenges EJB’s past performance and price realism evaluations, arguing
in the latter regard that a proper evaluation would have demonstrated that both
EJB’s proposal and the second lowest priced proposal were unrealistic. However, since IAP’s proposal was ranked only
fourth overall, and its arguments concern only EJB and one of the intervening
offerors, the other intervening offeror (whose price was higher than IAP’s, and
thus not subject to IAP’s realism argument) would be in line for award ahead of
IAP even if we found merit in these arguments.
Under
these circumstances, IAP is not an interested party to raise these issues.
See 4 C.F.R. sect. 21.1(a); JAVIS Automation &
Eng’g, Inc., B‑290556.2,
The
protest is denied.
Anthony H. Gamboa
General Counsel
[1] In the comments IAP submitted on September 30 in response to the agency report, IAP for the first time asserts that the Navy should have discussed with IAP its concern regarding IAP’s willingness to accept pre-final inspections more than 30 days before a programmed vacancy. Since IAP learned of this concern on August 11, when the agency supplied IAP with an advance copy of its debriefing, but did not raise the issue until more than 10 working days after the debriefing, this argument is untimely. See 4 C.F.R. sect. 21.2(a)(2) (2005). In any case, as noted, the agency considered this concern to be only a minor weakness.
[2]The
agency computes a smaller price difference:
23 and 15 percent higher than the government estimate and EJB’s proposed
price, respectively, for the definite-quantity elements, and 8 and 6 percent
higher for the ID/IQ items.