AFSI's protest
challenges the agency's determination that AFSI's proposal was
technically unacceptable. The protester further maintains that
the agency improperly excluded AFSI's proposal from the
competitive range following discussions, that the agency's
discussions were not meaningful, and that the agency was biased
in its conduct of this procurement.
Technical Unacceptability
In protesting the agency's determination of technical
unacceptability, AFSI asserts that its proposal "provided all of
the information required by the [s]olicitation and the PWS" and
that, "[h]ad the agency properly and fairly evaluated AFSI's
[revised proposal], the proposal would have been deemed
acceptable." Protest at 12-13. More specifically, AFSI
challenges the agency's various assessments of deficiencies and
significant weaknesses.
By way of example, AFSI challenges the agency's basis for
assessing a deficiency regarding AFSI's failure to include
procedures to address each of the seven types of cleaning
services identified in the PWS. In this regard, AFSI's initial
protest asserts: "The evaluation criteria and the PWS did not
require the [offeror's] procedures manual to include specific
cleaning procedures that individually addressed seven types of
services." Protest at 10. AFSI is mistaken.
Agencies are required to evaluate offers in accordance with a
solicitation's stated requirements and evaluation criteria. The
Boeing Co., B-311344 et al., June 18, 2008, 2008 CPD para. 114
at 38. Where a dispute exists as to the actual requirements of a
solicitation, we will first examine the plain language of the
solicitation. See, e.g., Carthage Area Hosp., Inc., B-402345,
Mar. 16, 2010, 2010 CPD para. 90 at 5 n.7; W. Gohman Constr.
Co., B-401877, Dec. 2, 2009, 2010 CPD para. 11 at 3-4.
As noted above, under the heading "Technical Acceptability," the
solicitation expressly directed offerors to "[p]rovide a
Procedures Manual or equivalent that includes all of the
elements in the PWS." RFP amend. 3, at 270. Further, section
1.7.2.2 of the PWS provided that the procedures manual "shall .
. . describe the Contractor's cleaning methodologies using best
commercial and industry practices appropriate for the types of
cleaning required, [and] detail how the Contractor accomplishes
each function of specialized, routine, and project work." Id. at
215. Finally, section 5.8.1 of the PWS stated, "The Government
has defined seven (7) types of services for areas to be cleaned.
The seven (7) types of services are defined below." Id. at 244.
Directly following this provision, PWS sections 5.8.1.1 through
5.8.1.7 contained substantive descriptions for each of the seven
required services. Id. at 244-47.
On the record here, we find no merit in AFSI's assertion that
the agency's assessment of a deficiency was improper because the
solicitation "did not require" AFSI's procedures manual to
individually address the procedures to be employed for the seven
types of required services. To the contrary, upon review of the
solicitation provisions discussed above--including the
requirements to "describe the Contractor's cleaning
methodologies . . . for the types of cleaning required" and to
"detail how the Contractor accomplishes each function of
specialized, routine, and project work"--it is difficult to
imagine how AFSI's obligation could have been more clear.
Accordingly, AFSI's assertion that the solicitation "did not
require" AFSI to address each required PWS service is without
merit.
Next, AFSI challenges the agency's assessment of deficiencies
flowing from AFSI's failure to provide performance standards and
metrics that are applicable to the various PWS services. In this
regard, AFSI asserts that it "provided detailed performance
standards and performance metric reporting procedures throughout
its revised Technical Proposal." Protest at 10.
The evaluation of technical proposals is a matter within the
agency's discretion, since the agency is responsible for
defining its needs and for identifying the best methods for
accommodating those needs. U.S. Textiles, Inc., B-289685.3, Dec.
19, 2002, 2002 CPD para. 218 at 2. In this regard, our Office
will not reevaluate technical proposals; rather, we will review
a challenge to an agency's evaluation to determine whether the
agency acted reasonably and in accord with the solicitation's
evaluation criteria and applicable procurement statutes and
regulations. Id. A protester's mere disagreement with the
agency's judgments does not render the evaluation unreasonable.
SDS Int'l, Inc., B-291183.4, B‑291183.5, Apr. 28, 2003, 2003 CPD
para. 127 at 6.
As noted above, under the heading "Technical Acceptability," the
solicitation directed offerors to "[p]rovide a Procedures Manual
or equivalent that includes all elements in the PWS." RFP amend.
3, at 270-71. With regard to performance standards and metrics,
the solicitation specifically stated:
The Procedures Manual or equivalent shall . . . demonstrate[]
meaningful and measurable performance metrics that meet or
exceed the AHE [American Healthcare Environmental] Practice
Guidance for Healthcare Environmental Cleaning standards.
* * * * *
The Contractor shall establish performance standards aligned
with industry's voluntary consensus standards (VCS) and in
compliance with SAMMC-N Pam[phlet] 40-2, Infection Control
Manual to meet the PWS requirements.
Id. at 215.
AFSI asserts that its proposal "is replete with performance
standards and metrics." AFSI Comments, May 2, 2011, at 11.
However, in supporting this assertion, AFSI relies on provisions
in its proposal that relate to its quality control
procedures--that is, procedures AFSI will employ to preclude or
correct deficiencies in its contract performance. In this
regard, AFSI states, [deleted]. Id. at 14. Similarly, AFSI
refers to provisions in its proposal that indicate AFSI will
[deleted]. Id.; AR, Tab 15, AFSI Revised Technical Proposal, at
8. AFSI maintains that these proposal provisions met the
requirement to submit performance standards and metrics.
AFSI's reliance on its proposed quality control procedures as a
basis for challenging the agency's deficiency assessment misses
the point. That is, while these procedures address AFSI's
actions to preclude or correct contract performance that has
been or would be considered deficient, its proposal did not
establish standards or metrics for determining the level of
performance that will constitute deficient performance--which is
precisely what the PWS provisions quoted above required.
Accordingly, AFSI's various protest submissions provide no basis
for challenging the agency's determination that AFSI's proposal
failed to provide performance metrics and performance standards
against which AFSI's actual performance of the various PWS
requirements could be meaningfully measured.
We have further reviewed the agency record regarding all of the
assessed deficiencies and significant weaknesses, and we find no
basis to question any of the agency's assessments. As noted
above, the solicitation expressly advised offerors that, to be
evaluated as technically acceptable, a proposal must "contain[]
no deficiencies or significant weaknesses," further warning that
"any aspect of the proposal judged to be unacceptable may render
the entire proposal unacceptable." RFP amend. 3, at 264-65, 80.
Accordingly, based on the multiple deficiencies and significant
weaknesses in AFSI's proposal, the agency reasonably concluded
that the proposal was technically unacceptable. Further, in
light of AFSI's failure to meaningfully address the multiple
proposal flaws identified during discussions, the agency
reasonably excluded AFSI from further consideration. See, e.g.,
Bannum, Inc., B-291847, Mar. 17, 2003, 2003 CPD para. 74 at 2-3;
Moreland Corp., B‑291086, Oct. 8, 2002, 2002 CPD para. 197 at
3-4. (Ahtna Facility Services,
Inc., B-404913; B-404913.2, June 30, 2011) (pdf)
Given that the evaluation of the two proposals appears
reasonable, we now turn to the question of the competitive range
determination. While it is true that a competitive range of one
means that the competition is at an end, as noted above, we will
not question a determination to establish a competitive range of
one where the contracting officer had a reasonable basis to find
that the excluded proposals lacked a reasonable chance of being
selected for award. SDS Petroleum Prods., Inc., supra. From our
review of the record, we find that the contracting officer met
that standard here. As explained above, the record supports the
agency's determination that the Alliance proposal was
significantly technically superior compared to ISTC's proposal
and offered a substantially lower price. The weaknesses
identified in Alliance's proposal included minor matters,
whereas the agency had significant concerns about ISTC's
staffing and understanding of the work. We therefore see no
basis to question the contracting officer's conclusion that
ISTC's proposal had no reasonable chance of being selected for
award. (Information Systems
Technology Corporation, B-291747, March 17, 2003)
(pdf)
The decision to exclude Bannum's proposal from the competitive
range was reasonable. The solicitation specifically required
offerors to provide documentation showing community support for
the proposed site, RFP
§
L.8(i); an environmental assessment where, as in Bannum's case,
new construction was contemplated, RFP
§§
L.13, J, att. 2; an agreement with a hospital for 24-hour
emergency service, statement of work (SOW) at 91; and a staff
position to supervise offenders 24 hours a day, 7 days a week.
SOW at 11. Clearly stated RFP requirements are considered
material to the needs of the government, and a proposal that
fails to conform to material terms is unacceptable and may not
form the basis for award. Beckman Coulter, B-281030,
B‑281030.2, Dec. 21, 1998, 99-1 CPD ¶ 9 at 6. (The agency
also has explained why the requirements are material, pointing
out, for example, that it required a hospital agreement because
it wanted assurance that inmates would have appropriate access
to emergency medical services. Agency Report at 7-8.) Despite
the clearly stated requirements, and despite being told in each
of two rounds of discussions (one in the case of the
environmental assessment) that its proposal did not meet the
requirements, Bannum never submitted a compliant proposal.[3]
Under these circumstances, BOP's decision to eliminate Bannum's
proposal from the competitive range was reasonable. (Bannum,
Inc., B-291847, March 17, 2003) (txt
version)
As quoted above, the protester was specifically advised during
written negotiations to address its low operating expenses and
to specifically explain in detail how it would maintain the
facility. The record further shows that the protester did not
address the agency's concerns in writing in its revised
proposal. Based on the agency's detailed e-mail request, it
should have been reasonably clear to Moreland that the oral
discussions had not resolved the agency's concerns. The record
shows that not until the protester filed its comments to the
agency report for this protest did it furnish any detailed
written explanation of its operation and maintenance plan and
the reasonableness of its operating expenses. Since agencies are
required to evaluate proposals based on the content of the
proposal itself, an offeror in a negotiated procurement must
demonstrate its capabilities within the four corners of its
proposal. Northwestern Travel Agency, Inc., B-244592, Oct. 23,
1991, 91-2 CPD P: 363 at 6. Since the protester's proposal
failed to address the adequacy of its operations and maintenance
plan as required by the SFO or to establish the reasonableness
of its operating expenses, the agency reasonably eliminated the
proposal from the competitive range. (Moreland
Corporation, B-291086, October 8, 2002) (pdf)
OVC's initial proposal did not offer to perform a number of
tests required under the RFP which the agency reasonably
believed were crucial to show understanding and ability to
produce the LME. During discussions, in response to the agency's
question in this regard, OVC specifically refused to offer to
perform the required testing. Accordingly, the agency reasonably
rejected OVC's proposal as technically noncompliant. (Outdoor
Venture Corporation, B-288894.2, December 19, 2001) |
