Matter of: Symtech Corporation
Date: February 19, 2002
Donald Hirsch, Esq., for the protester.
Mike Colvin, Department of Health and Human Services, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
Protest is sustained where the record fails to establish that contracting officer had a reasonable basis for excluding protester's proposal from the competitive range.
Symtech Corporation protests the exclusion of its proposal from the competitive range and the award of a contract to MasiMax Resources, Inc. under request for proposals (RFP) No. N01DA-1-1106, issued by the Department of Health and Human Services for logistical support of science meetings conducted by the National Institute on Drug Abuse (NIDA).
We sustain the protest.
The RFP, which was issued as a competitive set-aside for small disadvantaged businesses under the Small Business Administration's 8(a) program,  contemplated the award of a cost-reimbursement contract for a base period of 1 year and two option periods of 2 years each. The contractor is to organize and provide logistical support for approximately 33 scientific conferences per year. In addition, it is to develop a variety of drug abuse-related publications.
The RFP provided for award to the offeror whose proposal represented the best value to the government, considering technical factors, cost, and past performance. The solicitation stated that technical factors would receive paramount consideration in the selection of an awardee, but that in the event that two or more offerors were rated as approximately equal in technical ability, the significance of cost would increase. The past performance of offerors whose proposals would not be selected for award based on the results of their evaluation under the other factors was not to be evaluated. Technical evaluation factors (and their weights) were as follows: understanding the project (20 points), technical approach (20 points), key personnel (25 points), management plan (25 points), and facilities (10 points).
Twelve offerors submitted proposals prior to the June 15, 2001 closing date. A technical evaluation panel (TEP) consisting of peer reviewers from outside the agency evaluated the technical proposals. The TEP found nine of the proposals, including those of MasiMax and Symtech, to be technically acceptable, and assigned the former a technical score of 94.7 and the latter a technical score of 89.8, which were the two highest scores awarded. (The other proposals received technical scores ranging from 82.8 to 37.2.) After reviewing the findings of the TEP and offerors' total estimated costs, the contracting officer determined that only Symtech and MasiMax should be included in the competitive range. She then investigated the past performance of the two offerors and determined that both were highly rated by most of their references; accordingly, she concluded that past performance should be regarded as "somewhat of a wash between the two offerors." Contracting Officer's Statement, Dec. 3, 2001, at 11.
The contracting officer initiated discussions with both offerors. Symtech was asked to respond to five technical questions. Upon receipt of Symtech's response to the five questions, the contracting officer determined that the protester's proposal should be eliminated from the competitive range. By letter dated September 13, received by the protester on September 26, the contracting officer notified Symtech of its exclusion from the competitive range. On September 27, the agency awarded a contract to MasiMax.
In her redetermination of the competitive range, the contracting officer explained that she had determined that Symtech's proposal should not be further considered because the protester had not adequately responded to two of the technical questions. Specifically, the contracting officer noted that in response to a discussion question asking Symtech to elaborate on its logistical work and science writing experience,  Symtech had not discussed logistical work that it, as the prime contractor, had performed, but instead had emphasized the logistics-related experience of its proposed project director  and subcontractor. In addition, Symtech had failed to demonstrate that it would furnish science writers with experience in the area of drug abuse. The contracting officer further noted that Symtech had failed to satisfactorily address her concerns regarding its lack of senior level personnel and had failed to offer a back-up plan for the position of project director.  In summary, the contracting officer found as follows:
The lack of logistical experience of the prime contractor, the over reliance on the subcontractor, the questionable mix of senior level labor versus junior level labor, the lack of proposed back up and the offeror's lack of drug abuse/NIH experience make it highly unlikely that this offeror can successfully execute the project without an extensive revision of the proposal.
Redetermination of Competitive Range, Sept. 12, 2001, at 2. Accordingly, she concluded that Symtech's proposal was "unacceptable for award"  and should be eliminated from the competitive range. Contracting Officer's Statement, supra, at 4.
The protester argues that the agency's decision to exclude its proposal from the competitive range was unreasonable.
The determination of whether a proposal is in the competitive range is principally a matter within the reasonable exercise of discretion of the contracting agency, and an agency is not required to retain in the competitive range a proposal that the agency reasonably concludes has no realistic prospect of award. Ervin & Assocs., Inc., B-280993, Dec. 17, 1998, 98-2 CPD ¶ 151 at 3; see Federal Acquisition Regulation (FAR) § 15.306(c)(1). While, in reviewing protests challenging the evaluation and exclusion of proposals from the competitive range, we do not evaluate the proposals anew or substitute our judgment for that of the agency, we will examine the record to determine whether the agency's judgment was reasonable and in accord with the RFP evaluation criteria. Northwest Procurement Inst., Inc., B-286345, Nov. 17, 2000, 2000 CPD ¶ 192 at 5. Because the record here does not support the agency's determination that Symtech's proposal was technically unacceptable, we conclude that the decision to exclude the proposal from the competitive range was improper.
The contracting officer cites four weaknesses in the protester's proposal; as discussed below, we think that each of her findings is unsupported.
First, regarding the contracting officer's citation of Symtech's lack of corporate experience in performing logistics contracts as a weakness, corporate experience was not an evaluation factor under this RFP, nor is it logically encompassed within any of the stated technical factors (understanding the project, technical approach, key personnel, management plan, and facilities). Moreover, even to the extent that experience is logically encompassed within past performance, we see no reasonable basis for the contracting officer's unwillingness to attribute the experience of Symtech's proposed project director and subcontractor to Symtech. The Federal Acquisition Regulation (FAR) instructs that the evaluation of past performance should take into account past performance information regarding predecessor companies, key personnel who have relevant experience, or subcontractors that will perform major or critical aspects of the requirement when such information is relevant to the instant acquisition, which it clearly was here. FAR § 15.305(a)(2)(iii).
Even if we assumed, though, for the purpose of this analysis that the agency had a reasonable basis for declining to attribute the project director's and subcontractor's experience to Symtech, the resulting lack of experience could not properly have led to a negative past performance rating for Symtech. The FAR instructs that in the case of an offeror without a record of relevant past performance or for whom information on past performance is not available, the offeror may not be evaluated favorably or unfavorably on past performance, FAR § 15.305(a)(2)(iv), meaning that the contracting officer could not have evaluated Symtech's past performance as weak based on its lack of corporate experience in performing logistics contracts.
Regarding the contracting officer's finding that Symtech's proposal failed to offer the services of a health science writer with experience in drug abuse, this criticism is simply unsupported by the record. In its proposal, Symtech offered as a science writer the services of an employee of its proposed subcontractor with extensive experience writing on drug abuse issues. Symtech Proposal at 108-09. Symtech also offered, as a supplement to its proposed project team, a resource pool comprised of staff members assigned to other projects, but available on an as-needed basis to support this contract. Id. at 90. Several of these individuals are science writers/editors with experience in the area of drug abuse. Accordingly, we find no basis for this criticism of the protester's proposal.
Further, we fail to see a reasonable basis for the contracting officer's conclusion that Symtech had offered predominantly junior-level staff. In its proposal, Symtech identified the members of its proposed project staff and their years of experience as follows:
Id. at 105-09. Moreover, in response to the discussion question regarding the ability of Symtech's proposed staff to perform high quality work (see footnote 4 above), Symtech emphasized that its senior conference manager/subcontract manager, writer/editor, and graphics/desktop publisher all had substantial NIDA-related experience directly related to the positions for which they were proposed. Based on the foregoing, it appears to us that the only arguably "junior-level" staffer proposed by Symtech was the conference coordinator, who was, commensurate with her level of experience, assigned only "junior-level" responsibilities. 
We also see no basis for the conclusion that Symtech had proposed no back-up for the position of project director. In the section of its proposal summarizing the roles and responsibilities of its project team members, Symtech stated that its proposed senior conference manager would serve as acting project manager in the project manager's absence.  Id. at 110. To the extent that the contracting officer is objecting to Symtech's proposal of an employee of its subcontractor as back-up for the project director, so long as the solicitation itself does not prohibit performance by subcontractor employees (and the RFP here did not), we are aware of nothing that would preclude a prime contractor from proposing an employee of its subcontractor for a key position under a contract.
In sum, based on our review of the record here, we find that the agency lacked a reasonable basis for determining Symtech's proposal technically unacceptable and excluding it from the competitive range. We recommend that the agency include Symtech's proposal in the competitive range and reevaluate proposals. If, as a result of the reevaluation, Symtech's proposal is determined to be the best value to the government, we recommend that the agency terminate the contract awarded to MasiMax and make award to Symtech. We also recommend that the agency reimburse the protester for its costs of filing and pursuing the protest, including attorneys' fees. Bid Protest Regulations, 4 C.F.R. § 21.8(d)(1) (2001). In accordance with section 21.8(f) of our Regulations, Symtech's claim for such costs, detailing the time expended and the costs incurred, must be submitted directly to the agency within 60 days after receipt of the decision.
The protest is sustained.
Anthony H. Gamboa
1. Section 8(a) of the Small Business Act, 15 U.S.C. § 637(a) (2000), authorizes the Small Business Administration to enter into contracts with government agencies and to arrange for the performance of such contracts by letting subcontracts to socially and economically disadvantaged small business concerns.
2. The question read as follows:
One contract with logistic aspects is noted in the proposal. Please elaborate on the logistical work you have done, including science writing and include samples of this writing including the author's name and affiliation.
Contracting Officer's Letter to Symtech, Sept. 5, 2001.
3. This individual was the project director on the previous contract; Symtech proposed to hire her if it was awarded the contract under the RFP at issue in the protest.
4. The contracting officer's September 5 question raising concerns regarding the protester's lack of senior level personnel read as follows:
The prime contractor has named only one senior level person. The personnel named in the subcontract are mostly junior level personnel. We are concerned that the quality of work may suffer due to the lack of senior level personnel. How can you assure us that the service will be at a high quality level, if the staffing is predominantly junior level personnel?
5. According to the agency, this was essentially a determination of technical unacceptability. Agency Report, Dec. 7, 2001, at 2 n.1.
6. Symtech described this individual's responsibilities as including the following: planning and coordinating food and lodging, mailings, room setups, data collection, and hospitality; monitoring and coordinating logistical, clerical, and administrative support to the conference team; arranging onsite registration, monitoring adherence to the conference schedule, and assisting in training the conference staff; and preparing conference mailings, premeeting materials, and logistical duties related to NIDA conferences. Id. at 110.
7. As indicated above, this individual has more than 10 years experience in conference/event planning and management.