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: LIS, Inc.

File: B-400646.4

Date: January 4, 2010

DIGEST

Agency reasonably evaluated proposals for library and information center services under the experience, past performance and technical approach factors, where it reasonably credited the protester's incumbent experience, but determined that the awardee's proposal was technically superior to the protester's under the technical approach factor because it had more distinguishable strengths and was technically equal to the protester's under the experience and past performance factors, and reasonably made award based on the awardee's lower-priced, technically superior proposal.

LIS, Inc. of Lafayette, Colorado protests the award of a contract to Labat-Anderson, Inc., of McLean, Virginia, under request for proposals (RFP) No. RFPC0B-008, issued by the Department of Justice, Federal Bureau of Prisons, for library and information center services. LIS challenges the evaluation of proposals and source selection decision.

We deny the protest.

The National Institutes of Corrections (NIC) provides leadership and assistance in the field of corrections with regard to training, technical assistance, research and evaluation, policy standards formulation and implementation, and clearinghouse services. The NIC contains an information center that "collect[s], prepar[es], and disseminat[es]" information on corrections, including information on prisons, jails, probation, parole, and community based corrections. The "mission" for these services is to "assist in improving current policies, practices, standards and procedures through support to correction practitioners and policy makers." RFP at 36. A function of the information center is to maintain and operate the Robert J. Kutak Memorial Library in Aurora, Colorado, which houses all of the documents. Id. at 37.

The RFP, issued on June 11, 2008, sought proposals to manage and operate the NIC information center and the Robert J. Kutak Memorial Library. The statement of work (SOW) described the services to be provided by the selected contractor and included requirements for both library and information services. These requirements included library services; website hosting, design and maintenance; information center services; scheduled reports and publications; and unscheduled requirements. Id. at 49-63. The library services required the contractor to perform "all customary tasks of maintaining and operating a small specialized library" and required the contractor to "identify, acquire, maintain, and catalog new correctional materials and relevant management materials;" respond to orders for information; provide reference and research services; and provide "customized search service[s]" for users in need of assistance. Id. at 49, 57-59. With regard to customized searches, the SOW "require[d] Contractor employees conducting searches to be knowledgeable in the corrections field in general; specific NIC divisional program issues; the similarities and differences between local, state, national, and international corrections programs and issues; and the identification of new issues and programs in the corrections field." Id. at 58.

The RFP contemplated the award of a fixed-price contract for a 1-year base period, with 4 option years. Id. at 2-4, 37. The RFP provided for award on a best-value basis, considering the evaluation factors of technical approach, project organization and firm experience, past performance, and cost or price. The RFP stated that the "Technical Factors (A) are more important than Project Organization and Experience (B) and Past Performance (C), and when combined they are significantly more important than Price (D)." Id. at 17-18.

Labat and LIS (the incumbent contractor) submitted proposals by the RFP's July 25 closing date. After the source selection evaluation board (SSEB) completed initial evaluations, the agency held two rounds of discussions, and obtained final price revisions. LIS's final proposal revision had a price of $8,037,361 and Labat's final proposal revision had a price of $5,966,741. Agency Report (AR), Tab 33, Price Analysis, at 1. The SSEB recognized that LIS's technical proposal was slightly better technically than Labat's, but found that this superiority did "not justify paying the premium for an almost technically equal proposal." AR, Tab 13, SSEB Evaluation Review Addendum, at 1-2. On September 22, the source selection authority (SSA) selected Labat's proposal for award.

LIS protested the award on September 29. On October 28, the agency took corrective action, stating that it intended to reevaluate the proposals. On October 30, our Office dismissed the protest as academic. The SSA, with the assistance of the SSEB chairperson, reevaluated the proposals and documented a best-value analysis supporting an award to Labat. Award was made on December 12. On December 18, LIS again protested that the evaluation and source selection were flawed because the agency failed to adhere to the stated evaluation criteria, did not properly consider or compare the relative merits of the proposals, and did not adequately document the evaluation.

On March 25, 2009, we issued a decision sustaining LIS's protest because the agency had not performed or documented a reasoned consideration of the relative merits of the proposals but instead provided only general conclusions. LIS, Inc., B-400646.2, B-400646.3, Mar. 25, 2009, 2010 CPD para. __. Among other things, we noted that the record, including hearing testimony, did not explain how Labat addressed the agency's concern expressed in the evaluation of the initial proposals that Labat lacked corrections experience or explain how Labat's experience compared to LIS's experience as the incumbent contractor with more than 30 years of relevant experience under the relevant evaluation factors.[1] Id. at 8. We also found that the agency, in its evaluation, had weighted the evaluation factors in a manner that was inconsistent with the RFP. Id. at 9. We recommended that the agency decide what weight to accord the evaluation factors and amend the solicitation if necessary, and that the agency perform a new evaluation consistent with the decision, reopen discussions, if necessary, and make a new source selection decision. Id.

In response, the BOP decided that it would reevaluate the proposals of Labat and LIS anew with a newly assembled three-member source selection evaluation panel (SSEP), composed of individuals currently employed at NIC, and that it would not use the previous proposal evaluations.[2] See Hearing Transcript (Tr.) at 31, 260-61.[3]

On June 3, after the proposals were evaluated by the SSEP, the agency commenced discussions with each offeror concerning weaknesses found in their respective proposals. Among the areas of concern in LIS's proposal, which were noted by the SSEP and which were brought up in discussions, related to LIS's staffing plan, which was regarded as a proposal weakness because it did not contain sufficient details, and the SSEP's belief that LIS's price was "too high." AR, Tab 18, SSEP Evaluation Review Report (June 1, 2009), at 16, 27; Tab 19, Discussion Letter to LIS (June 3, 2009), at 2-3. Among the areas of concern noted in Labat's proposal and brought up in discussions related to Labat's proposed personnel, given that Labat's proposal named no staff for positions except key personnel. AR, Tab 18, SSEP Evaluation Review Report (June 1, 2009), Tab 20, Discussion Letter to Labat (June 3, 2009). In response, LIS addressed the agency's specific concerns and in order "to reduce the price of services" eliminated some positions from its proposal and reduced its price to $6,998,904. AR, Tab 21, LIS's Discussion Response (June 17, 2009), at 13. Labat also addressed the agency's concerns and increased its price to $6,039,744.72. AR, Tab 22, Labat's Discussion Response (June 22, 2009), at 12.

Because LIS reduced its staff hours by 5,262 hours without revising its staffing plan to identify the specific positions being cut, the BOP conducted further discussions with LIS regarding this change to its proposal to address concerns about LIS's ability to meet the SOW requirements. See Tr. at 43-50. In this regard, the BOP requested LIS, "Provide further information regarding the proposed positions that have been eliminated from your proposal" and "The revised Staffing Plan reflects a reduction of 5,262 staff hours. What effect does this reduction have on [LIS's] ability to meet all of the SOW as proposed in [LIS's] proposal?" AR, Tab 23, Discussion Letter to LIS (June 23, 2009), at 1. In addition, both LIS and Labat were invited to revise their prices to make them more favorable to the government. Id.; AR, Tab 24, Discussion Letter to Labat (June 23, 2009). In response, LIS advised the BOP that the four positions being eliminated were the associate web developer, reference specialist, multimedia specialist, and administrative support staff, but that the contract performance requirements would be met, although LIS's "staff's ability to go 'above and beyond' the scope of the SOW" could be impacted. AR, Tab 25, LIS Discussion Response (June 26, 2009), at 4-5. Neither offeror revised its price.

On July 8, both offerors were requested to update their banking information, Labat was requested to update its subcontracting plan, and both offerors were advised that this was their final opportunity to revise their prices to make them more favorable to the government. AR, Tab 27, Discussion Letter to LIS (July 8, 2009); Tab 28, Discussion Letter to Labat (July 8, 2009). The offerors provided the requested information and neither revised its prices.

The SSEP evaluated the proposals and revisions, prepared a well-documented consensus report that discussed in detail the various attributes of each proposal and identified the respective proposals' strengths and weaknesses under each evaluation factor and subfactor. With regard to each of the evaluation factors, subfactors, and sub-subfactors, the SSEP provided color ratings and a detailed comparative analysis of the proposals, and each of the offeror's discussion responses was specifically analyzed.

One of the weaknesses found by the SSEP related to LIS's staffing plan, particularly in view of the staff reductions identified during discussions (discussed above); LIS received a "green/acceptable" rating for the staffing plan subfactor of the technical approach factor as compared to Labat's "blue/very good" rating. AR, Tab 31, SSEP Final Consensus Report, at 26, 38. In addition, while the SSEP assigned both proposals "blue/very good" ratings under the project organization and firm experience factor, it identified the following weakness in LIS's proposal:[4]

[LIS] has only performed services for this one contract. This can limit the contractor from having a broader view of services. NIC is the only experience that [LIS] has [and] could limit their ability to have broad perspective.

Id. at 33.

Both proposals were rated by the SSEP as "blue/very good" overall. Id. at 5. The SSEP consensus report concluded that the proposals were rated "virtually equally," but found that Labat's proposal was technically superior based upon its "stronger ability to manage the web development components of the SOW" because it had an "award winning" subcontractor for web development while LIS was relying on a "single web-developer position." On the other hand, the SSEP recognized that LIS's strength over Labat was for the letters of intent that it had for staff beyond key personnel, although the SSEP believed Labat's strong corporate support ensured its ability to quickly hire and retain qualified staff. Id. at 39.

In making his source selection decision, the record shows that the SSA performed an independent comparative assessment of Labat's and LIS's proposals in which the SSA sometimes disagreed with the ratings, strengths and weaknesses assigned by the SSEP, and explained and documented his evaluation judgments. See AR, Tab 35, Source Selection Decision; Tr. at 157, 219-20. In so doing, the SSA testified that he did not give controlling weight to the color ratings, but considered the SSEP's supporting narratives, including strengths and weaknesses. Tr. at 220.

With regard to the technical approach factor, the SSA agreed with the assessment of the weakness identified by the SSEP with regard to LIS's staffing plan[5] and identified a weakness in Labat's proposal under the personnel subfactor of the technical approach factor for "lack of corrections [experience] in their proposal" that had not been identified as a weakness by the SSEP. These were the only weaknesses identified under the technical approach factor for the proposals, although neither weakness was regarded by the SSA as "significant." These weaknesses were found by the SSA to be offset by the numerous strengths under this factor in these proposals. AR, Tab 35, Source Selection Decision, at 10, 12, 13. While both proposals received "blue/very good" ratings under the technical approach factor, the SSA rated Labat's higher than LIS's under this factor because it had "more distinguishable strengths," including Labat's use of a subcontractor for web development support and "Labat's headquarters has 'scanning and document conversion capabilities to scan over a million pages a week.'" Id. at 14.

The SSA found both proposals were equal under the project organization and firm experience and past performance factors with "blue/very good" ratings. Id. at 20. The SSA concurred and adopted the weakness found in LIS's proposal under this factor that LIS's only experience is with the NIC library and information center. Id. at 15. The SSA identified a weakness in Labat's proposal that was not mentioned in the SSEB report--that it had no correctional experience, one of the subject matters of the NIC Library and Information Center. Id.

Since Labat's price was considered fair, reasonable and realistic,[6] and was lower than LIS's, and since Labat's proposal was considered to be technically superior, the SSA found that no trade-off was necessary and determined that Labat's proposal represented the best overall value. Id.; see AR, Tab 33, Price Analysis; Tab 34, Realism Analysis. The award was made to Labat on September 17. After a debriefing, this protest followed.

In large part, LIS's protest of the reasonableness of the current evaluation and source selection is based upon statements and conclusions of prior evaluations and testimony of the SSA concerning those evaluations at the GAO hearing on the prior protest. LIS essentially argues that because LIS's proposal was previously recognized as technically superior and to contain certain discriminating strengths, and because the corrections experience possessed by LIS was regarded as important, the agency's current evaluation that reached different results should be regarded as unreasonable. For example, the protester references a note by a prior evaluator who found "unmatched" level of detail in LIS's technical approach as compared to Labat's, yet Labat's technical approach was now evaluated as superior to LIS's, and the SSA's testimony at the hearing on the prior protest that 30 years of corrections experience was more useful or relevant than no corrections experience.

However, the prior protest was sustained because the agency failed to adequately document or explain its source selection decision, including how certain weaknesses in Labat's proposal, such as its lack of corrections experience, were resolved and/or considered. As discussed below, our review of the record does not establish that the evaluation and source selection suffered from the same deficiency here. Instead, as noted above, the agency evaluated the proposals anew and the award was based solely on the reevaluation. Tr. at 31, 260-61. Therefore, we find the prior evaluation and the SSA's prior testimony regarding that evaluation are not relevant here. See MW-All Star Joint Venture, B-291170.4, Aug. 4, 2003, 2004 CPD para. 98 at 2 n.2.

Turning to the LIS's remaining contentions, the crux of LIS's protest is that LIS's proposal should have been rated more favorably than Labat's proposal under the project organization and firm experience and past performance factors because it has over 30 years of direct NIC library and information center experience whereas Labat has no library experience in the field of corrections, and that the agency's evaluation did not reasonably give sufficient weight to this fact.

Our Office examines an agency's evaluation of experience and past performance to ensure that it was reasonable and consistent with the stated evaluation criteria and applicable statutes and regulations; however, determinations regarding the relative merits of offerors' proposals are primarily matters within the contracting agency's discretion. JVSCC, B-311303.2, May 13, 2009, 2009 CPD para. 138 at 5; Kay & Assocs., Inc., B-291269, Dec. 11, 2002, 2003 CPD para. 12 at 4. In this regard, our Office will not question an agency's determinations absent evidence that those determinations are unreasonable or contrary to the stated evaluation criteria. JVSCC, supra. Moreover, a protester's mere disagreement with the agency's judgment does not establish that an evaluation was unreasonable. UNICCO Gov't Servs., Inc., B-277658, Nov. 7, 1997, 97-2 CPD para. 134 at 7. Based on our review of the record, we find no basis to object to the SSEP's and SSA's evaluation of the proposals as equal under these two factors.

Under the project organization and firm experience factor, the RFP stated that proposals would be evaluated for "whether contractors have performed similar work before" and further stated that "[t]he Project Organization will be evaluated for reasonableness, allocation of authority and responsibility and usefulness to NIC." The factor referenced the SOW,[7] and stated that the subfactors that would be evaluated in this area were "[t]he description of the offeror's background and personnel expertise . . . relative to performing the proposed project" and "the offeror['s], including any subcontractor relationships . . . capab[ility] of developing, managing, and controlling this type of project." RFP at 18.

The SSA considered LIS's and Labat's proposals to be equal under the project organization and firm experience factor with "blue/very good" ratings. The SSA did not find a significant distinction between LIS's 30 years of experience of only operating the NIC library and information center and Labat's broad experience operating numerous library and information centers. In this regard, the SSA noted that Labat is one of the largest commercial firms in the library support industry and its experience was found to include 29 years of experience providing services for federal library and information centers during which it supported 58 federal government libraries and information centers, including four federal contracts involving the same basic tasks required in the RFP SOW. AR, Tab 31, SSEP Final Consensus Report, at 34; Tab 35, Source Selection Decision, at 14-16. The agency found that Labat's varied network of libraries in other federal agencies would allow for state-of-the art operations and knowledge and the integration of innovative approaches and best practices. AR, Tab 31, Final Consensus Report, at 34; Tab 35, Source Selection Decision, at 14-16. This was a strength when compared to LIS's experience under one highly relevant contract, which the agency found "would limit the contractor from having a broader view of the services." See AR, Tab 35, Source Selection Decision, at 15. The SSA concluded that "although [LIS] is the incumbent and their experience is considered a strength, it is no more a strength [than] Labat's vast experience with the numerous projects that they offered." Id. at 15‑16.

While LIS argues that it was unreasonable for the agency to assign its proposal a weakness here because the RFP evaluation factors did not indicate that other than corrections experience was required, the fact is that the SOW described a library and information center services contract and the agency could reasonably find that LIS's limited experience (that is, only on the incumbent contract) was a relative weakness, particularly as compared to Labat, which has a broad range of library experience, which could be reasonably regarded as "useful" to the agency and considered to be a strength. See Tr. at 135-36, 203-04. Although the protester maintains that it should have received a higher rating than Labat because it has the direct experience of operating the NIC information center and library, which should have been considered more similar and useful to the NIC than Labat's experience, neither the RFP nor this evaluation factor required the agency to assign greater weight to the proposal on this basis alone. See University Research Co., LLC, B‑294358.6, B‑2944358.7, Apr. 20, 2005, 2005 CPD para. 83 at 16. In this regard, we agree with the BOP that the fact that the RFP emphasized corrections experience and that the RFP SOW included many tasks related to corrections did not preclude the agency's determination that other experience performing "similar work," including other library experience on federal contracts involving the same basic tasks as required by this SOW, would be "useful" to the NIC and could be considered in the evaluation of the project organization and firm experience factor. See Tr. at 136, 139, 203-04.

LIS argues that the evaluation of its contracts operating the NIC library and information center should have warranted a higher rating under the past performance factor, alleging that Labat not only lacked corrections experience but its contracts did not cover all of the services required by the SOW and the contemplated NIC library and information center contract.

The critical question in evaluating proposals under the past performance factor is whether the evaluation was conducted fairly, reasonably, and in accordance with the stated evaluation terms, and whether it is based upon relevant information sufficient to make a reasonable determination of the offeror's overall past performance rating. University Research Co., LLC, supra, at 14.

The RFP stated that past performance would be evaluated to determine "how well the contractors performed the work before." RFP at 18. Here, the record evidences that the SSA, who performed the past performance evaluation, first focused on the overall relevance of the contracts as they related to the solicitation, and then considered how well the contractors performed the work before, and how the ratings on prior contracts would correlate to the NIC library and information center services contract. Contracting Officer's Statement at 7. The SSA testified that he determined Labat's contracts to be relevant because "[he] evaluated what we have in the RFP [in the SOW] and . . . looked at the projects that [Labat] offered and . . . found them to be relevant because the services that we have in the RFP are similar to the services that Labat does" under the contracts that were listed by Labat as past performance references. Tr. at 94-95. The SSA admitted that they were not "identical" services but stated "they [are] in the realm of library and information center services as far as acquisition of materials and cataloging materials and doing the basic thing that libraries do." Tr. at 94-95, 103-04, 113-14. The SSA also testified that he did not use corrections experience as a means of determining relevancy, that he interpreted relevance to be contracts that involved services that were similar to the library and management services outlined in the SOW, and that the RFP did not define relevance as "highly relevant versus lowly relevant." Tr. at 118-21. Since both Labat and LIS had successfully performed on their relevant contracts, the SSA assigned equal ratings to the proposals for past performance.

We find the agency's evaluation of past performance to be reasonable. As noted, the RFP did not define relevance or otherwise provide for the evaluation of relative degrees of relevance, and the evaluation factor only provided that the evaluation would consider how well the contractor had performed. While LIS disagrees with the agency's determination that Labat's submitted contracts were relevant, we find the agency could reasonably determine that library and information center service contracts that included many of the same tasks required by this RFP were relevant for considering the offeror's past performance. Where, as here, both offerors have relevant past performance, an agency is not required to further differentiate between the past performance ratings unless the RFP provides that relative relevance be considered. See S4 Inc., B-299817, B-299817.2, Aug. 23, 2007, 2007 CPD para. 164 at 9; University Research Co., supra, at 16. Since the SSA reasonably found that Labat had successfully performed relevant projects, he was not required to draw any further distinctions between LIS's and Labat's proposals under this factor.

LIS also argues that it deserved a higher rating than Labat under the technical approach factor because it had incumbent staff that had the requisite experience performing the tasks required by the SOW, such as customized searches, whereas Labat only proposed to hire staff with corrections experience to meet the SOW requirements. This issue relates to the personnel subfactor, one of the four subfactors of the technical approach factor. The SSA identified the lack of corrections experience as a weakness in Labat's proposal, while identifying the letters of commitment provided in LIS's proposal from its proposed staff (not just key personnel) as a strength in LIS's proposal, and awarded Labat a green/acceptable rating for this subfactor as compared to LIS's "blue/very good" rating. AR, Tab 35, Source Selection Decision, at 12. The SSA also found that Labat's weakness here should not hinder contract performance in view of other information provided by Labat identifying how this lack of experience can be addressed by "various common commercial techniques," offering "right of first refusal to incumbent staff," and other methods. Id. at 13. Moreover, the record shows that LIS's advantage under this subfactor was offset by its weakness under the staffing plan subfactor (discussed above) and by the fact that "Labat had more distinguishable strengths than" LIS under the technical approach factor, such that Labat's proposal was considered superior to LIS's under this factor. Id. at 14. Since the area for which LIS complains it should have received a higher rating was given due consideration by the agency under the technical approach factor, we find no basis to question the agency's evaluation here.

LIS finally argues that the agency conducted misleading discussions with it concerning LIS's proposal to reduce the price of services and eliminate staffing positions. LIS argues that it was lulled into believing that its proposal did not have any weaknesses with regard to staffing, when the agency on July 8 in its last request for final proposal revisions only asked for banking information and invited further price reductions. LIS argues that by this action the BOP misled LIS to believe that that it had sufficiently justified its staffing levels in its June 26 response.

Discussions, when conducted, must be meaningful; that is, they may not mislead offerors and must identify proposal deficiencies and significant weaknesses that could reasonably be addressed in a manner to materially enhance the offeror's potential for receiving award. Lockheed Martin Corp., B-293679 et al., May 27, 2004, 2004 CPD para. 115 at 7. Here, the agency specifically advised LIS of the weakness in its proposal with regard to the staffing plan. The agency then afforded LIS the opportunity to respond to the agency's specific concerns after LIS made the business decision to revise its proposal by lowering its price and its staffing level without an adequate explanation in the staffing plan. We find the discussions to be meaningful because the agency specifically advised the protester of the areas of concern. Where an agency has adequately advised an offeror of an area of concern, there is no legal requirement that it raise the issue again in a subsequent round of discussions, even where the issue continues to be of concern to the agency.[8] USFilter Operating Servs., Inc., B-293215, Feb. 10, 2004, 2004 CPD para. 64 at 3; cf. Price Waterhouse, B‑254492.2, Feb. 16, 1994, 94-1 CPD para. 168 at 11 (agency failed to conduct meaningful discussions when it twice requested best and final offers without advising an offeror of a disqualifying deficiency in its proposal).

In sum, we find that the agency's evaluation and source selection is reasonably supported by the record here.

The protest is denied.

Lynn H. Gibson
Acting General Counsel