BNUMBER: B-278508.4; B-278508.5; B-278508.6
DATE: October 6, 1998
TITLE: Biospherics Incorporated, B-278508.4; B-278508.5; B-278508.6,
October 6, 1998
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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.
Matter of:Biospherics Incorporated
File: B-278508.4; B-278508.5; B-278508.6
Date:October 6, 1998
Steven L. Briggerman, Esq., and Grace Bateman, Esq., Seyfarth, Shaw,
Fairweather & Geraldson, for the protester.
Alan S. Weitz, Esq., Greenstein DeLorme & Luchs, P.C., for Logistics
Applications Inc., an intervenor.
Michael Colvin, Department of Health & Human Services, for the agency.
Linda S. Lebowitz, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protests are sustained where there is no documentation of the agency's
evaluation of final revised proposals, that is, there is no
information in the record regarding proposal strengths and weaknesses
after discussions, and as a result, the reasonableness of the agency's
evaluation upon which the award decision was made cannot be
determined.
DECISION
Biospherics Incorporated protests the award of a contract to Logistics
Applications Inc. under request for proposals (RFP) No. AHCPR-98-0001,
issued by the Agency for Health Care Policy and Research (AHCPR),
Department of Health & Human Services, for the operation of a
publications clearinghouse. Biospherics challenges the agency's
evaluation of proposals and the agency's selection decision.
We sustain the protests.
The RFP, issued on June 5, 1997 as a small business set-aside,
contemplated the award of a cost-plus-fixed-fee contract for the base
period and four 1-year option periods. RFP sec. L.2., at 62. The RFP
described warehousing and distribution (fulfillment) tasks and
automated call center and database management function tasks. The RFP
required the contractor to store and distribute AHCPR publications; to
maintain and manage AHCPR's automated mailing/inventory control
systems; and to manage the storage and shipping of AHCPR exhibits.
The RFP stated that the "Government reserves the right to make an
award to the best advantage of the Government, cost and other factors
considered." RFP sec. M.1.A., at 80. The RFP contained the following
technical evaluation factors and respective weights: (1)
understanding the problem--25 points; (2) technical approach--25
points; (3) management plan--20 points; (4) key personnel--20 points;
and (5) facilities--10 points. RFP sec. M.2.A.--E., at 81-82. The RFP
stated that a peer review technical committee would consider offerors'
proposals in light of these technical evaluation factors and make a
recommendation concerning the technical acceptability/unacceptability
of each proposal. RFP sec. M.2., at 81. Offerors whose proposals were
determined technically acceptable would then be evaluated for past
performance, weighted at 25 points, based on the firm's performance
under existing and prior contracts for similar services. RFP sec.
M.2.F., at 82. The RFP stated that technical proposals would receive
paramount consideration in the selection of the awardee. RFP sec.
M.1.A., at 80. Cost would only become a significant factor if two or
more proposals were determined approximately technically equal. Id.
Three firms, including Biospherics and LAI, submitted proposals by the
amended closing date of July 11, 1997. Under the prior contract, LAI
was the prime contractor performing the warehousing and distribution
tasks, and Biospherics was LAI's subcontractor performing the call
center and database management tasks. For the current procurement,
LAI submitted a proposal to basically perform all required tasks, and
Biospherics submitted a proposal as the prime contractor teamed with
another firm which would serve as a subcontractor for the warehousing
and distribution tasks. The three proposals were evaluated by a peer
review panel made up of six individuals. This panel determined that
two proposals, including that of Biospherics, were technically
acceptable, and that LAI's proposal was technically unacceptable.
Following discussions with Biospherics and the other offeror and the
submission of revised proposals, the agency awarded a contract to
Biospherics.
LAI subsequently protested to our Office, contending among other
things that the peer review panel was biased because two of the six
reviewers were former employees of Biospherics and had failed to
disclose in their conflict of interest certificates their prior
employment relationships with Biospherics. The agency took corrective
action by convening a new peer review panel to reevaluate proposals.
Our Office dismissed LAI's protest as academic in light of the
agency's corrective action.
The agency's new peer review panel, made up of three individuals,[1]
convened on March 23, 1998. This panel reviewed the three technical
proposals as initially submitted, that is, none of the offerors was
permitted to revise its proposal at this time. All three proposals
were determined technically acceptable. The panel then considered the
project officer's evaluation of each offeror's past performance which
was based on questionnaires completed by references listed in each
offeror's proposal. As relevant to these protests, Biospherics and
LAI received the following scores:
Biospherics LAI
Technical [deleted] [deleted]
Past Performance [deleted] [deleted]
TOTAL [deleted] [deleted]
Technical scores were supported by narratives of the strengths and
weaknesses in each offeror's technical proposal. At this time, the
proposed cost of Biospherics was [deleted] than LAI's proposed cost
[deleted].
The proposals of Biospherics and LAI (as well as that of the third
offeror) were included in the competitive range. Following
discussions with each competitive range offeror, which focused on
technical and cost issues, the offerors submitted final revised
proposals. The agency made no adjustments to the technical scores of
any of the offerors, and therefore, as relevant to these protests, the
final scores for the revised proposals of Biospherics and LAI remained
as reflected in the above chart. The agency produced no documentation
reflecting an analysis of the offerors' revised proposals. With
respect to cost, the Biospherics proposed cost now was [deleted] than
LAI's proposed cost. The agency selected LAI as the most advantageous
offeror since it submitted the highest technically rated, [deleted]
proposed cost proposal.
Biospherics challenges the agency's evaluation of its proposal,
contending that its proposal should have been rated technically
superior to LAI's proposal. Biospherics further challenges the
agency's decision to award a contract to LAI as a technically superior
offeror.
In reviewing protests against allegedly improper evaluations, it is
not our role to reevaluate proposals. Rather, our Office examines the
record to determine whether the agency's judgment was reasonable and
in accord with the RFP's stated evaluation criteria. Engineering and
Computation, Inc., B-261658, Oct. 16, 1995, 95-2 CPD para. 176 at 2-3. In
order for us to review an agency's selection determination, an agency
must have adequate documentation to support that decision. Arco
Management of Washington, D.C., Inc., B-248653, Sept. 11, 1992, 92-2
CPD para. 173 at 3. While adjectival ratings and point scores are useful
as guides to decision-making, they generally are not controlling, but
rather, must be supported by documentation of the relative differences
between proposals, their weaknesses and risks, and the basis and
reasons for the selection decision. FAR sec. 15.608(a)(3), 15.612(d)(2)
(June 1997); Century Envtl. Hygiene, Inc., B-279378, June 5, 1998,
98-1 CPD para. 164 at 4; Engineering and Computation, Inc., supra, at 3.
Here, the record is devoid of any documentation of the agency's
evaluation of final revised proposals. There is no indication of an
analysis of the revised proposals, no information in the record
regarding proposal strengths and weaknesses after discussions, and no
discussion as to why the strengths and weaknesses from the initial
evaluation remained the same.[2] In the absence of such
documentation, we are unable to determine the reasonableness of the
agency's evaluation upon which the selection of LAI for award was
made.
In responding to these protests, the agency states:
The [Biospherics] proposal, as amended [by its final revised
proposal], was considered improved (though no rescoring was
performed), but not enough to be considered technically equal
with LAI. The judgment of the source selection official that
LAI's proposal was superior was not based on a numerical
rescoring, but rather on a comprehensive look at the final
results of the technical, cost and past performance evaluations.
Agency Report, letter dated August 17, 1998, at 1-2.
In view of the inadequacy of this conclusory statement that LAI's
proposal was technically superior to Biospherics' proposal, we asked
the agency to point out where the record documented a "comprehensive
look at the final results of the technical, cost and past performance
evaluations." The agency responded, again with conclusory statements,
in a letter dated August 27, 1998:
The Source Selection Memorandum (Tab Q) represents the
"comprehensive" assessment of the three major factors of cost,
technical and past performance. Before preparing this document,
the contract specialist had a comprehensive discussion with the
project officer, during which the relative technical strengths
and weaknesses of the offerors were reviewed. Also covered in
that discussion was the weight to be afforded to estimated cost
and past performance. This oral discussion was not reduced to
writing directly except, as mentioned above, as it is reflected
in the Source Selection Memorandum. As the contracting officer
has stated in her most recent submission, Biospherics would not
have been selected for award even if its technical merit had been
considered equal to LAI's (which was not the case), since LAI was
more highly ranked in both estimated cost and past performance.
The record shows that the agency's source selection memorandum
consisted of a chronology of the procurement; a listing of the
technical evaluation factors; the technical, past performance, and
total scores for each offeror; the offerors' proposed costs before and
after discussions; a statement that all three proposals were included
in the competitive range because the three offerors submitted
technically acceptable proposals and were determined capable to
perform the RFP requirements; a statement repeating that the RFP
required paramount consideration to be given to technical quality
rather than cost, unless the proposals were determined essentially
technically equal; and the contracting officer's statement that the
proposal of LAI scored highest for the technical evaluation factors
and past performance and represented the best value (highest technical
score and [deleted] proposed cost).
The source selection memorandum, however, contained no discussion of
the results of the evaluation of the Biospherics and LAI revised
proposals after discussions. In the absence of such narratives, we
cannot discern the basis for the agency's conclusion that LAI's
proposal was technically superior to that of Biospherics or, in other
words, that the Biospherics proposal was, essentially, technically
inferior to LAI's proposal.
In sum, the evaluation and source selection record furnished to our
Office--numerical scores and a blanket determination of acceptability,
no post-discussion narratives, and the source selection memorandum
which contains no explanation of how the revised proposals affected
the initial evaluation--is insufficient for our Office to determine
the reasonableness of the agency's evaluation of proposals and the
reasonableness of the agency's selection decision. See, e.g.,
Labat-Anderson Inc., B-246071, B-246071.2, Feb. 18, 1992, 92-1 CPD para.
193 at 5-8.
We recommend that the agency, in accordance with the applicable FAR
provisions, reevaluate the proposals, document its evaluation, and
make a new selection decision. If after reevaluation the agency
believes further discussions with offerors are warranted, it may
reopen discussions and request another round of revised proposals. If
the agency decides that LAI is no longer in line for award, the agency
should terminate the award to LAI and make another award. We also
recommend that Biospherics be reimbursed its costs of filing and
pursuing the protests, including reasonable attorneys' fees. Bid
Protest Regulations, 4 C.F.R. sec. 21.8(d)(1) (1998). Biospherics should
submit its certified claim, detailing the time expended and costs
incurred, directly to the contracting agency within 60 days of receipt
of this decision. 4 C.F.R. sec. 21.8(f)(1).
The protests are sustained.
Comptroller General
of the United States
1. This panel consisted of a registered nurse with a Ph.D. degree who
teaches nursing theory and research and is a freelance technical
writer; an individual who is a freelance editor/writer, owns his own
publications company, and teaches college-level mass communications
and communications studies; and an individual who owns his own company
dealing with corporate communications. The protester contends that
the selection of these individuals for the panel demonstrates the
agency's bad faith. While these individuals may not have had direct
publications clearinghouse experience, Biospherics has presented no
evidence that these individuals lacked the competence and skills
necessary to reasonably evaluate proposals. In fact, we agree with
the agency that the collective expertise of these individuals in the
areas of communications, publications, health services research, and
information technology provided relevant and appropriate background
for them to be able to reasonably evaluate proposals.
2. The materials provided to Biospherics as part of its debriefing
included a statement of the strengths and weaknesses resulting from
the initial evaluation.