B-310354.2; B-310354.3, Radiation Oncology Group of WNY, PC, September 18, 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: Radiation Oncology Group of WNY, PC
Todd Whay, Esq., The Whay Law Firm, for the
protester.
Jeffrey Weinstein, Esq., Jeffrey Weinstein, PLLC, for Roswell Park Cancer
Institute, an intervenor.
Dennis Foley, Esq., Department of Veterans
Affairs, for the agency.
Frank Maguire, Esq., and
John M. Melody, Esq., Office of the General Counsel, GAO,
participated in the preparation of the decision.
DIGEST
1.
Protest is sustained where agency permitted awardee to submit additional
support for technical proposal after deadline for submission of final proposal
revisions; agency’s acceptance of information violated solicitation’s late
proposal clause and constituted improper discussions with a single offeror.
2. Contracting
officer’s conclusion that protester’s and awardee’s proposals were technically
equal was unreasonable, and protest is sustained, where determination lacks
adequate supporting explanation or documentation.
DECISION
Radiation Oncology Group of
WNY, PC, (ROG) protests the award of a contract to Roswell Park Cancer
Institute (RPCI) under request for proposals (RFP) No. VA528-07-RP-0047,
issued by the Department of Veterans Affairs (VA) for radiation therapy
services. ROG challenges several aspects
of the agency’s evaluation of its and RPCI’s price and technical proposals.
The RFP was issued on April 1, 2007 for radiation therapy
services for the VA Medical Center in Buffalo, New York. Award was to be made on a “best value” basis,
as determined under three evaluation factors:
technical (including subfactors for quality, geographic location, and
management, experience and equipment, and subcriteria under each subfactor),
past performance, and cost [price]. The
technical and past performance factors, when combined, were worth 20 percent
more than price. RFP at 41. Proposals were due by May 17. AR exhs. 2, 4, 5.
ROG (the incumbent) and RPCI submitted proposals. The technical proposals were evaluated by a
three-member panel. AR exh. 9. Each evaluator rated each technical proposal
with regard to each of 27 technical subcriteria, as exceed/exceptional, exceeds standard, meets
standard, or below standard. Id. Although the rating sheets appear to have
contemplated a narrative explanation only under categories where proposals were
rated exceed/exceptional or below standard, in practice no proposal received
either rating under any subcriterion, and narrative explanations typically were
provided for exceeds standard ratings. Id.
Based on the ratings provided by the evaluation panel, the
contracting officer (the source selection authority) calculated a numerical
percentage score for each proposal. AR
exh. 14, Contracting Officer’s Memorandum, Oct. 11, 2007, Technical Evaluation
Totals. Under the contracting officer’s
scoring mechanism, proposals received a score of 30 percent for each
exceed/exceptional rating (apparently reflecting the fact that technical
proposals were worth 30 percent of an offeror’s total score under the
evaluation scheme), 20 percent for each exceeds standard rating, 10 percent for
each meets standard rating, and zero percent for each below standard
rating. Id. The contracting officer then calculated a cumulative
score by adding the ratings for each offeror:
RPCI’s proposal received 60 points for 3 exceeds standard ratings and
780 points for 78 meets standard ratings, for a total of 840 points. ROG’s proposal received 260 points for 13
exceeds standard ratings and 680 points for 68 meets standard ratings, for a
total of 940 points. Id. The contracting officer then derived an
average subcriterion score for each proposal by dividing each total score by
81. RPCI’s average score was 10.37 and
ROG’s was 11.6. Id.
Although ROG’s average technical score was approximately
12 percent higher than RPCI’s, the contracting officer concluded that the
proposals were essentially equal technically.
AR exh. 14, Contracting Officer’s Memorandum, Oct. 11, 2007; AR exh. 15,
Price Negotiation Memorandum, Aug. 23, 2007.
The contracting officer also found the offerors equal for past
performance. Id. RPCI’s proposed price ($7,564,859.30) was
higher than ROG’s ($6,575,875.00). AR
exh. 14, Estimated Contract Cost. The contracting
officer concluded that, since the proposals were equal under the technical and
past performance factors, ROG’s low price made its proposal the best
value. AR exh. 1, Contracting Officer’s
Narrative, July 7, 2008; AR exh. 15, Price Negotiation Memorandum, Aug. 23,
2007. Award was made to ROG on August
23. AR exh. 16.
RPCI challenged the award in a protest filed in our Office
on September 17, 2007, contending that the agency misevaluated the technical
and price proposals. Subsequently, the
agency advised us that it intended to take corrective action-- by amending the
solicitation, obtaining and evaluating revised proposals, and making a new
source selection decision--and we therefore dismissed the protest as academic
(B‑310354, Oct. 22, 2007).
On January 4, 2008, VA issued
amendment No. 3 to the RFP in order to implement the corrective action. AR exh. 22.
The amendment only called for revised price proposals, which were
received from ROG and RPCI by the February 20 closing date. AR exh.1, Contracting Officer’s Narrative,
July 7, 2008, at 1; AR exhs. 26-27.
RPCI’s revised price ($3,547,144.00) was lower than either of ROG’s two
alternative price proposals ($4,291,368.30, $4,370,349.50) and, noting that the
proposals previously had been determined to be essentially equal under the
non-price factors, the contracting officer determined that RPCI’s proposal now
represented the best value. AR exh. 28,
Abstract of Price Proposals, Feb. 20, 2008; AR exh. 30, Price Negotiation
Memorandum, June 2, 2008. On May 30, VA
notified ROG that it was terminating its contract and making award to
RPCI. AR exh. 31. Award was made to RPCI on May 30. AR exh. 32.
ROG challenges the evaluation of proposals and the award
to RPCI on several grounds raised in an initial and a supplemental
protest. We have considered all of ROG’s
arguments and sustain the protest on two grounds. Specifically, we find that (1) the agency
improperly permitted RPCI to submit additional support for its technical
proposal after the date for submission of proposals, and (2) the contracting
officer’s conclusion that the offerors’ proposals were technically equal lacked
adequate supporting explanation or documentation and, therefore, was
unreasonable. We discuss these issues in
detail below.
LATE RPCI TECHNICAL SUBMISSION
ROG contends that a July 2, 2007 e-mail from RPCI to VA
forwarding additional supporting material regarding its technical proposal
constituted a late proposal modification--since it was received after the
deadline for initial proposal submission --that could not be considered in the
evaluation. Supp. Protest at 2-4. In this regard, the July 2 e-mail transmitted “additional quality/ performance
evaluations” and asked that the information be forwarded “to the committee reviewing
the proposals.” AR exh. 8. The four pages of attachments included an
accreditation certificate from the American College of Radiology (ACR), a
statement of satisfactory performance from the Radiation Therapy Oncology Group
(RTOG) of the ACR, and two pages of RTOG evaluation data, which the e-mail
described as relating to “quality assurance and data management.” Id.
The information was included in the copy of RPCI’s proposal furnished
with the agency’s report.
The material submitted with the July 2 e-mail appears to
support RPCI’s technical proposal with regard to the quality subfactor (under
the technical factor). Id.; RFP
at 37.[1] The agency does not assert that the
information was not material, and we find nothing in the record to indicate that
it was not. Further, the record--which,
as discussed below, is almost completely lacking in narrative discussion of the
source selection decision--does not establish the extent to which the materials
submitted by RPCI were considered in the agency’s technical evaluation.[2] ROG raised this protest ground in its
supplemental protest (filed on July 28) and, in its initial response to the
supplemental protest, the agency did not address whether it had considered the
July 2 material in the evaluation.
Supp. AR at 3. [3] Subsequently, we specifically requested that
the agency address the issue. GAO
Memorandum to the Parties, Aug. 20, 2008.
In its response to our request, the agency still did not assert that it
did not consider the material in the evaluation, and it did not otherwise
address the issue on the merits.
(Rather, the agency asserted only that the argument should be dismissed
as untimely; we find that the argument was timely raised.[4]) VA Letter to GAO, Aug. 25, 2008. Based on this record, we are left to conclude
that the agency considered the material in the evaluation of RPCI’s proposal.
Under Federal Acquisition Regulation (FAR) clause
52.212-1(f), Instructions to Offerors--Commercial Items, incorporated in the
RFP, an offer, modification, or revision
of a proposal is not to be considered (unless it is by the otherwise successful
offeror, which is not the case here) if it is received after the exact time
specified for receipt of offers. See
FAR sect. 15.208. Since RPCI’s additional
materials were submitted on July 2, after the closing time, they were late and
could not properly be considered. See
Sunrise Med. HHG, Inc., B‑310230, Dec. 12, 2007, 2008 CPD para.
7.
The protester also contends, and we agree, that the
agency’s consideration of the late material essentially constituted improper
discussions with only one offeror.
Exchanges between a procuring agency and an offeror, including proposal
revisions, that permit the offeror to materially modify its proposal generally
constitute discussions. Univ. of Dayton Research Inst., B‑296946.6, June 15,
2006, 2006 CPD para. 102. When an agency
permits one offeror to revise its proposal, it must provide all competitive
range offerors with the same opportunity.
Fritz Cos., Inc., B-246736 et al., May 13, 1992, 92-1 CPD
para. 443. Here, ROG was not provided an
opportunity to revise its technical proposal.
Consequently, we sustain the protest on this ground.
LACK OF ADEQUATE DOCUMENTATION
ROG contends that the agency’s evaluation of technical
proposals, including the contracting officer’s determination that the proposals
were technically equal, lacked adequate documentation.
In reviewing an agency’s evaluation of proposals and
source selection decision, we examine the supporting record to determine
whether the decision was reasonable, consistent with the stated evaluation
criteria and applicable procurement statutes and regulations, and adequately
documented. Univ. Research Co., LLC,
B‑294358 et al., Oct. 28, 2004, 2004 CPD para. 217 at 8. Toward this end, independent judgments of
source selection officials must be adequately documented. Where an agency fails to adequately document
its source selection decision, it bears the risk that we may be unable to determine whether the decision was reasonable
and proper. Johnson Controls World
Servs., Inc., B-289942, B-289942.2, May 24, 2002, 2002 CPD para. 88 at 6; AIU
N. Am., Inc., B-283743.2, Feb. 16, 2000, 2000 CPD para. 39 at 7-9 (protest
sustained because selection official did not document the basis for concluding
that proposals were technically equal, after the evaluation panel concluded
that one proposal was superior).
Here, the record is inadequate to establish that the
contracting officer’s finding of technical equality is reasonable and
proper. As discussed above, the evaluation
record consists of the evaluators’ adjectival ratings for each of the
subcriteria, their narrative comments under several subcriteria, and the
contracting officer’s scoring of the proposals based on the adjectival ratings. The evaluators did not provide the
contracting officer with a comprehensive assessment or listing of the
proposals’ strengths and weaknesses, and the record includes no evidence that
the contracting officer ever considered the actual merits of the proposals in
calculating the scores. Likewise, there
is no indication that the contracting officer considered the actual merits of
the proposals in ultimately determining that, notwithstanding ROG’s proposal’s
approximately 12 percent higher score, it was equal in technical merit to
RPCI’s proposal. The record includes no
explanation of the contracting officer’s rationale for her conclusion that the
approximate 12 percent scoring difference did not translate into actual
technical superiority for RPG’s proposal.
Rather, the record includes only the conclusory statement that “After
performing the evaluation, it was determined that the offers were equal both
technically and in past performance … .”
AR exh. 15, Price Negotiation Memorandum, Aug. 23, 2007. This brief statement is the sole
contemporaneous explanation for the contracting officer’s determination that
the proposals were technically equal, notwithstanding ROG’s proposal’s higher
percentage score.
In reviewing an agency’s evaluation, we may also consider
documentation prepared after the source selection decision was made, although
we will accord greater weight to contemporaneous materials rather than
judgments made in response to protest contentions. Beacon Auto Parts, B-287483, June 13,
2001, 2001 CPD para. 116 at 6. Here, the agency
submitted no contracting officer’s statement in response to the protester’s
supplemental protest, in which ROG’s specific evaluation challenges are raised,
and the post-protest record, like the contemporaneous record, contains no other
support for the contracting officer’s conclusion that the proposals were
technically equal. In a memorandum dated
October 11, 2007, prepared after the filing of RPCI’s prior protest, the
contracting officer concluded that “The combined scoring for Technical and Past
Performance was found to be equal.” AR
exh. 14, Contracting Officer Memorandum, Oct. 11, 2007. Similarly, in the narrative submitted in
response to ROG’s initial protest, the contracting officer merely recites that
she “determined that the offerors were essentially technically equal based on
the technical and past performance factors set forth in the RFP.” AR exh. 1, Contracting Officer’s
Narrative, July 7, 2008, at 1. These
conclusory statements are inadequate to establish the reasonableness of the
contracting officer’s determination that the proposals were technically
equal.
While the agency’s report in response to ROG’s
supplemental protest does not include a statement by the contracting officer,
it does respond to each of the protester’s specific challenges to the
evaluation ratings. However, these
responses were provided by the agency’s legal counsel, with no indication that
the responses reflect the contracting officer’s own rationale for her
evaluation conclusions. In this regard,
the agency’s counsel provides explanations for the various challenged ratings
but, instead of attributing the asserted rationales to the contracting officer,
asserts that the explanations would lead “a reasonable person” to conclude that
the scoring was reasonable. Supp. AR at
5-7. These responses do not constitute
an adequate evaluation record, see York Bldg. Servs., Inc., B‑296948.2
et al., Nov. 3, 2005, 2005 CPD para. 202 at 7 (GAO accords little or no
weight to “new rationales, based on a hypothetically correct evaluation, for
which there is no support in the contemporaneous record.”), and the
supplemental report does not otherwise indicate the considerations that
factored into the contracting officer’s determination that the proposals were
technically equal.
We conclude that the contracting officer’s determination that ROG’s and RPCI’s proposals were technically equal lacked adequate supporting explanation or documentation and, therefore, was unreasonable. See Magellan Health Servs., B‑298912, Jan. 5, 2007, 2007 CPD para. 81 (protest challenging adequacy of agency’s source selection decision sustained where evaluation record was insufficient to establish reasonableness of the selection official’s determination that offers were technically equal, notwithstanding protester’s proposal’s higher technical rating); Midland Supply, Inc., B‑298720, B‑298720.2, Nov. 29, 2006, 2007 CPD para. 2 (award decision not reasonable where there is no documentation or explanation and agency makes its award decision based strictly on a mechanical comparison of the offerors’ total point scores)Accordingly, we sustain the protest on this ground.
RECOMMENDATION
Based on the foregoing, we recommend that the agency
reopen the procurement in order to provide both offerors an opportunity to
revise their technical and price proposals.
We further recommend that the agency reevaluate the revised proposals
consistent with this decision, and make a new award decision. The agency should fully document its
evaluation and award decision. If, upon
reevaluation, ROG’s proposal is determined to be the best value, VA should
terminate RPCI’s contract for the convenience of the government and make award
to ROG. We also recommend that ROG be
reimbursed the costs of filing and pursuing this protest, including reasonable
attorneys’ fees. 4 C.F.R. sect.
21.8(d)(1). ROG should submit its
certified claim for costs, detailing the time expended and cost incurred,
directly to the contracting agency within 60 days after receipt of this
decision. 4 C.F.R. sect. 21.8(f)(1).
The protest is sustained.
Gary L. Kepplinger
General Counsel
[1] The material submitted by RPCI on July 2 appears to address the quality control/quality improvement subcriterion and the accreditation subcriterion. RPCI’s proposal received an exceeds standard rating from each of the evaluators on the quality control/quality improvement subcriterion. While RPCI’s proposal received only a meets standard rating from each of the evaluators under the accreditation subcriterion, RPCI’s July 2 submission includes an updated ACR accreditation that appears to supplant an expired ACR accreditation included in the original proposal; it is not clear from the record how this expired accreditation may have affected the evaluation.
[2] RPCI contends that the record shows that the July 2 information was not considered by the evaluators. According to RPCI, the information related to the “quality control/quality improvement” subcriterion (under the quality subfactor), RPCI Comments on Supp. AR, Aug. 19, 2008; RFP at 37, under which RPCI’s proposal received an exceeds standard rating from each of the three evaluators, two of whom provided narrative comments. AR exh. 9. RPCI asserts that the narrative comments do not mention the July 2 material, and that this indicates that VA did not consider the material in the evaluation. RPCI Comments on Supp. AR, Aug. 19, 2008. RPCI concludes that ROG suffered no prejudice as a result of the late submission. We find this argument unpersuasive. While RPCI is correct that the narratives do not mention the additional July 2 information, the narratives are brief and conclusory in nature, and there is no indication in the record that they were intended to be comprehensive explanations of all considerations that went into a particular rating. The evaluators’ failure to discuss the July 2 information thus does not support a conclusion that the information was not considered in the evaluators’ ratings.
[3] We note that RPCI submitted updated technical information with its February 19 revised price proposal that was substantially similar to the July 2 information. AR exh. 26. In contrast to the agency’s failure to address whether it considered the July 2 information, the agency specifically states that it did not evaluate the additional information submitted with RPCI’s revised price proposal. AR exh. 1, Contracting Officer’s Narrative, July 7, 2008, at 1; Supp. AR at 3.
[4]
The agency asserts that this argument is untimely because it was based on
information provided by the agency in response to allegations in ROG’s initial
protest that the agency claims failed to state a valid basis of protest
regarding the technical evaluation.
Supp. AR at 3-4. However, under
our Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(2) (2008), a protest
argument is timely when raised within 10 days after the basis for the argument
was or should have been known. ROG
learned of the grounds for this protest argument from the evaluation documents
and raised the argument within 10 days after receiving the documents. The fact that the agency believes the
documents furnished related to an invalid protest ground in the original
protest did not preclude the protester from raising new arguments based on
those documents. The agency also argues
that the argument should be deemed untimely because ROG could have obtained the
underlying information if it had requested a debriefing on the initial award
(to itself) or intervened in RPCI’s protest.
However, the agency could not have furnished RPCI’s proposal information
to ROG had there been a debriefing, and since the record in RPCI’s protest was
not developed prior to the agency’s taking corrective action, ROG would not
have received the relevant information had it intervened in RPCI’s
protest. Thus, there is no basis to
conclude that ROG could have obtained the information earlier.