BNUMBER: B-271899
DATE: August 28, 1996
TITLE: Quality Elevator Company, Inc.
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Matter of:Quality Elevator Company, Inc.
File: B-271899
Date:August 28, 1996
George W. Ash, Esq., William J. Lewandowski, Esq., and William H.
Carroll, Esq., Dykema Gossett, for the protester.
Gerald F. Ivey, Esq., Wilson, Elser, Moskowitz, Edelman & Dicker, for
Elevator Control Service, an intervenor.
Cecelia R. Jones, Esq., Department of Commerce, for the agency.
Katherine I. Riback, Esq., and Paul Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Allegation that agency improperly evaluated protester's proposal
is denied where evaluation documentation shows that the ratings
assigned to the proposal were reasonable and reflected the
solicitation's stated evaluation criteria.
2. Allegation that agency failed to conduct meaningful discussions
with protester is denied where discussion questions directly led
protester into areas of its technical proposal that required
amplification.
DECISION
Quality Elevator Company, Inc. protests the award of a contract to
Elevator Control Service (Elcon), under request for proposals (RFP)
No. 52-SAAA-6-00011, issued by the Department of Commerce. Quality
argues that the agency failed to conduct meaningful discussions, and
that the proposals were improperly evaluated.
We deny the protest.
The RFP, issued on November 30, 1995, requested proposals for a
fixed-price contract for a base year with 3 option years to provide
labor, equipment, tools, and materials to perform inspection, testing,
maintenance, and repairs services on elevators in the Herbert C.
Hoover Building in Washington, D.C. Technical factors were stated to
be more important than price. The RFP contained the following
technical evaluation factors and associated points: (1) preventative
maintenance plan (150 points); (2) management plan (200 points); (3)
organization and control (100 points); (4) level of effort (50
points); (5) continuity of service (150 points);
(6) personnel (150 points); and (7) past performance (200 points), for
a maximum possible total of 1,000 points.
The agency received five proposals and after evaluation of initial
proposals, established a competitive range of four proposals,
including those of Quality and Elcon. Written discussions were
conducted with all competitive range offerors, and all four submitted
best and final offers (BAFO) by the March 13, 1996, closing date. The
BAFOs were evaluated as follows:[1]
Offeror Technical Score Life Cycle Price
Elcon 852.5 $840,128.13
Offeror "A" 637.5 $776,130.00
Offeror "B" 630 $803,600.00
Quality 467.5 $645,750.00
The agency concluded that Elcon's proposal represented the best
overall value to the government and made award to Elcon on April 19.
This protest followed.
TECHNICAL EVALUATION OF PROPOSALS
Quality raises numerous arguments to the effect that the technical
evaluation was improper, and that the resulting source selection
therefore was invalid. We have reviewed the record and conclude that
these arguments are without merit.
The evaluation of technical proposals is a matter within the
discretion of the contracting agency since the agency is responsible
for defining its needs and the best methods of accommodating them.
Marine Animal Prods. Int'l, Inc., B-247150.2, July 13, 1992, 92-2 CPD para.
16. In reviewing an agency's evaluation, we will not reevaluate
technical proposals but instead will examine the agency's evaluation
to ensure that it was reasonable and consistent with the
solicitation's stated evaluation criteria. MAR Inc., B-246889, Apr.
14, 1992, 92-1 CPD para. 367.
Past Performance
The RFP requested that each offeror submit a minimum of four
references knowledgeable about its past performance, but the RFP did
not state any number of references that the agency would contact as
part of the evaluation. The technical evaluation panel (TEP)
contacted one reference from each offeror's proposal, visited the
associated site and interviewed the contract administrator. In
evaluating Quality's past performance, the agency received input from
the contracting officer's technical representative (COTR) for
Quality's current contract, who was also on the TEP, concerning
Quality's maintenance of the elevators at the Department of Commerce's
Herbert C. Hoover Building. Quality received a "very good" score of
120 out of a possible 200 points to reflect the agency's conclusion
that Quality, the incumbent contractor, was currently operating at an
acceptable level but, citing the COTR's comment that Quality's level
of service over the past 3 months had deteriorated, the TEP concluded
that Quality's performance in servicing the elevators to be maintained
under this contract warranted a score of only "very good."
In our view, this assessment of the protester was reasonable.
Agencies evaluating proposals may properly consider their own past
experience with an offeror's performance where the solicitation
contains past performance as an evaluation factor. George A. and
Peter A. Palivos, B-245878.2; B-245878.3, Mar. 16, 1992, 92-1 CPD para.
286. Here, while taking cognizance of Quality's experience in
performing as the incumbent, the agency also took into consideration
its direct knowledge of Quality's recent performance problems. We
find without merit the protester's argument that the agency's
evaluation of its past performance was improper because the agency
only contacted one of its references. There is no legal requirement
that all references listed in a proposal be checked. Questech, Inc.,
B-236028, Nov. 1, 1989, 89-2 CPD para. 407.
Quality argues that Elcon could not properly receive a higher rating
for past performance since it lacked experience in maintaining the
elevators to be maintained under this contract. Elcon received an
"excellent" score of 180 points under this factor largely due to the
excellent report that the TEP received from one of Elcon's references
at the State Department. This person stated that he would recommend
Elcon as a possible contractor for elevator maintenance without
reservation.[2] In our view, the agency could reasonably rate Elcon
as it did in light of this unreserved positive recommendation since
nothing in the RFP indicated that specific experience with the
elevators to be maintained was to be a consideration under this
evaluation factor.
Continuity of Service
Under this evaluation factor, offerors were to discuss all actions
that would be taken to mobilize for performance along with other
plans, such as its strike contingency plan, phase out plan, and an
emergency disaster plan. Quality's proposal received an "acceptable"
score of 60 points for this factor. The TEP noted that Quality's
revised proposal was lacking in specifics and failed to include an
emergency disaster plan. Quality responds that its revised proposal
contained three pages devoted to this factor and that the copy of its
revised proposal that it submitted to the agency was missing a page
that described its emergency disaster plan. Quality maintains that
had the agency properly evaluated its proposal, it would have
discovered that Quality's revised proposal was missing a page.
The agency responds that the pages of Quality's revised proposal were
not numbered and that there were no apparent breaks in the material;
therefore, according to the agency, it had no way of knowing that a
page was missing from Quality's revised proposal. We find that the
agency reasonably evaluated Quality's proposal under this factor.
From our review of the record it appears that not only did Quality's
proposal fail to include an emergency disaster plan but that the two
pages that Quality submitted for this factor were lacking in detail.
The offeror has the burden of submitting an adequately written
proposal, see MAR Inc., supra, and on this record we see no basis for
faulting the agency for not realizing that Quality's revised proposal
was missing a page or for not evaluating the proposal higher than it
did under this factor.
Organization and Control
With respect to this evaluation factor, offerors were asked to
provide: (1) a quality control program (75 points), which included a
description of the contractor's inspection system covering all
services to be provided under the contract and the contractor's
methods of identifying and correcting deficiencies in the quality of
services performed, and (2) a detailed approach for managing
day-to-day operations performed by the on-site work force (25 points).
Quality's proposal received 15 out of 75 points for the quality
control program subfactor and received 7.5 out of 25 points for the
day-to-day operations subfactor, for a total score of 22.5 points for
this factor. The TEP noted that Quality's proposal "lacked substance
and provided only a 'general' mention of the requirements." The
evaluators found, and our review confirms, that Quality's proposal did
not address all of the requirements that were to be addressed. For
example, Quality's proposal contained no discussion of the sampling
techniques that would be used to identify deficiencies. In addition,
Quality's proposal did not describe the procedures it would utilize to
report deficiencies to the agency that were discovered during quality
control inspections. The agency's concerns about the brevity and the
omissions in Quality's proposal and its evaluation of Quality's
organization and control appear reasonable and consistent with the
solicitation criteria.[3]
Elcon's proposal received 60 out of 75 points for its quality control
program, and 17.5 out of 25 points for its day-to-day operations plan
for a low "excellent" total score of 77.5 points for this factor. The
TEP viewed favorably the fact that Elcon intended to use a quality
control inspector to monitor Elcon's performance under this contract,
but it reduced Elcon's score from 67.5 to 60 points due to the reduced
amount of time that the inspector would spend monitoring the contract
after the first quarter. Regarding Elcon's day-to-day operations
plan, the TEP raised Elcon's score from 15 to 17.5 points because, in
response to a question asked during discussions, Elcon provided
additional details concerning the supervision of its on-site
employees. We see no basis to object to this assessment.
Management Plan
Under this evaluation factor, offerors were to submit a management
plan which described in detail the methods and procedures that they
plan to employ in performing the seven work tasks described in the
SOW. Quality received a score of 40 out of 200 points for this
evaluation factor. The TEP noted that Quality's proposal failed to
address in detail the management of the following three work tasks:
routine service calls, maintenance repairs, and reimbursable repairs.
Regarding maintenance repairs, Quality stated only that "[d]ay to day
maintenance activities and repair work will be handled in accordance
with good maintenance practices by the personnel assigned to this
project." The only reference in Quality's management plan to
reimbursable repairs was the following: "[i]n the event that it
appears that the repair will exceed the specified dollar limitation
the Project Manager will provide the COTR with a cost and time
estimate as required." The agency concluded that Quality's proposal
failed to describe the differing management needs of the various work
tasks and stated that Quality's proposal overall lacked substantive
information.
Quality contends that the evaluation of its proposal's management plan
was unreasonable, and that its proposal met the solicitation
requirements. Quality argues that there is little need for management
planning to assure adequate performance, because the RFP calls for
on-site personnel to provide the necessary elevator servicing.
Therefore, Quality argues, personnel is the critical important
evaluation factor. Quality points out that it received a high "very
good" for the personnel factor and contends that somehow this score
should be used to increase Quality's score under the management plan
factor. Quality also argues that the agency unfairly downgraded its
proposal under this factor because the protester had followed the
solicitation instruction to be "as concise and specific as is
practicable."
Elcon's proposal received an "excellent" score of 180 points. The TEP
noted that Elcon's proposal contained a separate detailed description
of each of the methods and procedures that it would use to manage each
of the seven work tasks. For example, regarding routine service
calls, Elcon's management plan separately addressed service calls that
would be placed verbally by stating that such calls should be directed
to its home office, and providing the phone number, and service calls
that were submitted in writing (Elcon specified that such orders
should be placed at a predetermined location and that Elcon's on-site
technicians would pick up these orders twice daily). Additionally,
the TEP noted that it particularly liked Elcon's plan for maintaining
a stock of commonly used parts and supplies.
The agency reasonably determined that Elcon's detailed eight-page
management proposal was superior to the nonspecific three-page
management proposal submitted by Quality. Contrary to the protester's
assertions, an offeror's blanket offer of compliance is not an
adequate substitute for detailed and complete technical information in
a proposal establishing what the firm proposes will meet the
government's needs. Whittaker Elec. Sys., B-246732.2, Sept. 10, 1992,
92-2 CPD para. 161. An agency may downgrade a proposal for lack of detail
pertaining to the requirements of an RFP, or consider a more detailed
proposal superior. See ICONCO/NATIONAL Joint Venture, B-240119, Oct.
16, 1990, 90-2 CPD para. 296.
We find without merit the protester's argument that its qualified
personnel made up for its otherwise deficient management plan because
on-site personnel were the critical factor in the performance of this
contract. The RFP made the management plan one of the most heavily
weighted factors, and specifically required that offerors include in
their management plans a detailed description of the methods and
procedures that it plans to employ in performing the work. The fact
that the RFP required on-site personnel, and that Quality's proposal
received a high "very good" rating under the personnel factor does not
have anything to do with the requirement for a management plan or the
rating under the management plan factor. Further, the provision of
the RFP that encourages offerors to structure their proposals in a
"concise and specific" manner cannot be read to obviate the clearly
expressed requirements to submit specified information with the
proposal. TLC Sys., B-243220, July 9, 1991, 91-2 CPD para. 37. Based on
our review of the record, we find that the agency reasonably concluded
that Elcon's management plan was superior to Quality's management
plan, in part because Elcon's management plan was significantly more
detailed.
MEANINGFUL DISCUSSIONS
Quality next argues that the agency failed to provide it with
meaningful discussions with regard to its past performance, the
organization and control, and the management plan sections of its
proposal.
Agencies are required to conduct meaningful discussions with all
competitive range offerors. Stone & Webster Eng'g Corp., B-255286.2,
Apr. 12, 1994, 94-1 CPD para. 306. In order for discussions to be
meaningful, contracting officials must advise offerors of deficiencies
in their proposals and afford offerors an opportunity to revise their
proposals to satisfy the government's requirements. Id. This does
not mean that offerors are entitled to all-encompassing discussions.
Agencies are only required to lead offerors into areas of their
proposals that require amplification. Caldwell Consulting Assocs.,
B-242767; B-242767.2, June 5, 1991, 91-1 CPD para. 530. The degree of
specificity required in conducting discussions is not constant and is
primarily a matter for the procuring agency to determine. JCI Envtl.
Servs., B-250752.3, Apr. 7, 1993, 93-1 CPD para. 299.
Past Performance
Quality argues that it should have been offered an opportunity to
rebut the perceived weaknesses during the past 3 months on the current
contract. We disagree. Agencies must point out in discussions
weaknesses that, unless corrected, would prevent an offeror from
having a reasonable chance for award. Department of the Navy--Recon.,
72 Comp. Gen. 221 (1993), 93-1 CPD para. 422. Where, as here, the
evaluators rated the proposal as "very good" in this area, and the
agency's decision not to award a contract to Quality was not based on
Quality's past performance, there was no requirement that the matter
be the subject of discussions. See Stone & Webster Eng'g Corp.,
supra.
Organization and Control
Quality argues that the agency conducted unequal discussions because
it posed two specific questions to Elcon regarding its "very good"
day-to-day operations, and only one question to Quality regarding its
"unacceptable" day-to-day plan.
Contracting agencies have wide discretion in determining the nature
and scope of negotiations. While discussions must provide offerors
with an equal opportunity to revise their proposals, the content and
extent of discussions are within the discretion of the contracting
officer. See Tritech Field Eng'g, Inc., B-255336.2,
Apr. 13, 1994, 94-1 CPD para. 261. Since the number and type of
deficiencies, if any, will vary among proposals, there is no
requirement that all offerors receive the same number or type of
discussion questions. Textron Marine Sys., B-255580.3, Aug. 2, 1994,
94-2 CPD para. 63. Rather, the agency should individualize the evaluated
deficiencies of each offeror in its conduct of discussions. Pan Am
World Servs., Inc., et al., B-231840 et al., Nov. 7, 1988, 88-2 CPD para.
446. Because the degree of deficiencies in proposals will vary, the
amount of specificity or detail of discussions will also vary among
the offerors. Pope Maintenance Corp., B-206143.3, Sept. 9, 1982, 82-2
CPD para. 218.
The record clearly shows that Elcon and Quality were each presented
with questions that were tailored to the specific deficiencies
identified in their written day-to-day plans. The TEP determined that
Quality's quality control program did not address all of the
requirements of Section C.140.1. During discussions, the agency
advised Quality, "[y]our Quality Control plan does not specifically
address all of the requirements of Section C.140.1, please revise."
This statement clearly conveys the agency's concerns about Quality's
quality control program. The fact that Quality was presented with one
statement regarding this factor and Elcon was presented with two
statements simply reflects particulars of the evaluation of the two
proposals and does not betoken any inequality in the treatment of the
two offerors. All offerors, including Quality, were afforded the same
opportunity to respond to the agency's concerns raised in discussions
in revised proposals and BAFOs. The fact that Quality's responses to
the agency's discussion statement concerning its day-to-day operation
did not overcome the agency's concerns sufficiently to raise its score
does not establish that the discussions were inadequate.
Management Plan
Quality argues that the agency did not conduct meaningful discussions
in that the agency question was a "mere paraphrasing" of the RFP and
did not convey to Quality that the agency considered its management
plan deficient because it did not deal with each work task separately
and in detail.
Again, we disagree. The record reflects that the agency asked Quality
to address the work tasks in detail and asked Quality to "[p]lease
provide a detailed description of the methods and procedures you plan
to employ to perform the work tasks in Section C.200." This statement
clearly conveys the agency's concerns with the fact that Quality's
management proposal did not address each work task in detail, and
afforded the protester a reasonable opportunity to satisfy the
government's requirements through the submission of a revised
proposal. Quality failed to respond to this question with adequate
detail and the agency reasonably concluded that Quality's management
plan did not adequately specify the methods and procedures that it
would employ to perform each of the seven work tasks in the SOW.
COST/TECHNICAL TRADEOFF
Quality contends that the agency conducted an improper and
unreasonable cost/technical tradeoff. Quality bases this argument on
its allegation that the technical advantages cited by the agency in
Elcon's proposal were not supported by the record, and that,
therefore, there were no significant technical differences between its
proposal and Elcon's higher-priced proposal. However, as detailed
above, the record supports both Elcon's "excellent" rating and
Quality's substantially lower rating; hence, Quality's argument is
based on a mistaken premise. On this record, we have no reason to
find the award determination unreasonable or inconsistent with the
evaluation criteria set forth in the RFP. See JSA Healthcare Corp.,
B-252724, July 26, 1993, 93-2 CPD para. 54.
The protest is denied.
Comptroller General
of the United States
1. In addition to the life-cycle prices, there are certain unit labor
prices representing what the agency will have to pay for labor once
the contractor reaches a designated threshold. These prices are not
relevant to the protest issues.
2. This State Department employee also mentioned that Elcon had
replaced Quality and corrected the problems that the agency had
experienced with Quality. The TEP noted that these comments did not
affect Quality's score.
3. Quality also contends that the agency downgraded its proposal for
not addressing each of the seven minimum standards of performance
listed in section C.300 of the statement of work (SOW), but did not
downgrade Elcon's proposal for the same omission. (The minimum
standards of performance lay out the response time for each of the
seven work tasks.) Contrary to Quality's assertions, Elcon's proposal
commits the offeror to responding to the various work tasks within the
various time frames laid out in the minimum standards of performance
in its management plan.