Government Telecommunications, Inc.
Highlights
Government Telecommunications, Inc. (GTI) protests the exclusion of its proposal from the competitive range under request for proposals (RFP) No. SSA-RFP-06-1031, issued by the Social Security Administration (SSA) for the agency's telephone systems replacement project (TSRP). GTI contends that the agency's evaluation of its proposal as well as the subsequent determination to exclude its proposal from the competitive range were improper.
B-299542.2, Government Telecommunications, Inc., June 21, 2007
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: Government Telecommunications, Inc.
John C. Person, Esq., Person & Craver LLP, for the protester.
Seth Binstock, Esq., Andrew J. Seff, Esq., and Ellen Rothschild, Esq., Social Security Administration, for the agency.
Louis A. Chiarella, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest challenging contracting agency's evaluation of protester's proposal and exclusion of proposal from competitive range is denied where agency's evaluation and competitive range determination were reasonable and in accordance with the solicitation evaluation criteria.
DECISION
Government Telecommunications, Inc. (GTI) protests the exclusion of its proposal from the competitive range under request for proposals (RFP) No. SSA-RFP-06-1031, issued by the Social Security Administration (SSA) for the agency's telephone systems replacement project (TSRP). GTI contends that the agency's evaluation of its proposal as well as the subsequent determination to exclude its proposal from the competitive range were improper.
BACKGROUND
SSA is a federal government agency staffed by over 65,000 employees. In addition to the agency's headquarters, SSA has a field organization consisting of 10 regional offices, 6 program service centers, and more than 1,500 field offices to provide services at the local level. The TSRP represents SSA's replacement of its current telephone systems with an enterprise voice over internet protocol (VoIP) telephone solution, to support the agency's current and future requirements and the transition to internet protocol (IP) telephone systems. In general terms, the statement of work here required the contractor to provide all hardware, software, and services necessary to engineer, install, and integrate the TSRP solutions with SSA's government-furnished equipment and to remove the legacy telephone systems. Statement of Work (SOW) sect. C.1.
The RFP, issued on
The RFP contained detailed instructions regarding the submission of proposals.[1] Specifically, the technical approach submission was required to demonstrate the offeror's understanding of the solicitation's technical requirements and thoroughly describe the TSRP solution being proposed; the technical approach narrative was also to be sufficiently specific, detailed, and complete so as to clearly and fully demonstrate the techniques and procedures the offeror would employ to meet all SOW requirements. Further, the RFP required an offeror's technical approach to include the operational, performance, and functional details of specific system capability(s) and/or features as explicitly stated in the SOW. Offerors merely proposing to provide supplies and services in accordance with the solicitation would not be eligible for award. RFP sections L.2, L.2.1.
The RFP informed offerors that SSA intended to evaluate proposals and award a contract without conducting discussions; however, the agency also reserved the right to conduct discussions if later determined by the contracting officer to be necessary. RFP sections L.1, L.2.6.
Four offerors, including GTI, submitted proposals by the November 9 closing date. An agency technical evaluation committee (TEC) evaluated offerors' proposals as to the technical factors using an adjectival rating system that was set forth in the RFP: excellent; good; acceptable; marginal; and unsatisfactory. The TEC's evaluation ratings of offerors' proposals were as follows:
Factor |
Offeror A |
Offeror B |
Offeror C |
GTI |
Technical Approach |
Marginal |
Good |
Marginal |
Unsatisfactory |
Past Performance |
Good |
Good |
Good |
Acceptable |
Key Personnel Qualifications |
Acceptable |
Acceptable |
Acceptable |
Acceptable |
Management Approach |
Marginal |
Acceptable |
Marginal |
Marginal |
Technical Overall |
Marginal |
Good |
Marginal |
Unsatisfactory |
Evaluated Price |
$297,094,538 |
$285,651,653 |
$296,494,909 |
$423,313,419 |
AR, Tab 6, TEC Report, at 45; Tab 7, Competitive Range Determination, at 16, 23.
The TEC identified numerous weaknesses and deficiencies in
GTI's proposal as to technical approach.
Specifically, the evaluators found that many of the systems and software
proposed in GTI's solution were not currently available, and that the late
availability dates proposed by the offeror represented significant risk to the
agency.[2] The TEC also found GTI's proposed IP
telephones were not currently available in the
The contracting officer subsequently decided that
discussions with offerors were necessary, and established a competitive range
consisting of the highest-rated, lowest-priced proposals. The agency eliminated GTI's proposal from the
competitive range based on its determination that the firm's proposal had
numerous significant weaknesses that constituted material failures in meeting
the agency's requirements, in areas that increased performance risk to an
unacceptable level. The contracting
officer also believed that the weaknesses in GTI's proposal were ones that
could not be addressed unless major portions of its proposal were
rewritten. The agency also considered
the fact that GTI's evaluated price was more than one-third higher than those
of the other offerors, and that while some reduction in GTI's total price might
be gained through negotiations, any such reduction likely would be in
proportion to reductions that could be expected from the other offerors,
thereby not affecting the comparative price difference between proposals.
DISCUSSION
Where, as here, a protest challenges an agency's
evaluation and exclusion of a proposal from a competitive range, we first
review the propriety of the agency's evaluation of the proposal, and then turn
to the agency's competitive range determination. Americom Gov't Servs., Inc., B-292242,
As explained in detail below, based upon our review of the record, SSA's evaluation of GTI's proposal and the subsequent exclusion of GTI's proposal from the competitive range were reasonable. The record reflects that GTI's technical proposal was downgraded in large part because the information provided either parroted back in whole or in part the RFP's requirements, lacked sufficient information and detail for the agency to determine that GTI would comply with the RFP's requirements, and, in various instances, indicated noncompliance with material requirements of the solicitation. Although we do not here specifically address all of the protester's arguments about the evaluation of its proposal and exclusion from the competitive range, we have fully considered all of them and find that they afford no basis to question the agency's competitive range decision.
GTI argues that the TEC's determination that its proposed
IP telephones were not currently available in the
GTI's argument here reflects a fundamental
misunderstanding of the proposal process.
It is an offeror's responsibility to submit a well-written proposal,
with adequately detailed information, which clearly demonstrates compliance
with the solicitation requirements and allows for a meaningful review by the
procuring agency. CACI Techs., Inc.,
B-296946,
GTI also disputes
the TEC's determination that many of its proposed systems and software
were not currently available and would require additional development activity
to meet the SOW requirements. The
protester states, for example, that while offering an in-phone paging
requirement was not planned by the telephone manufacturer, the feature would be
delivered according to the necessary schedule upon contract award. Similarly, with regard to the softphone
requirement,[6]
GTI contends that while its proposal could have been a little more clear, it
did state that GTI would comply with the SOW requirements. Comments,
In its proposal, while GTI agreed to provide a local in-phone paging system capability at all agency sites, it also stated that [t]his in-phone paging capability will be available in a future upgrade release for the OpenStage SIP phones. AR, Tab 4, GTI's Proposal, Vol. I, Technical Approach, at 132-33. Likewise, the offeror's proposal stated that
GTI will comply with the softphone functions and requirements of [SOW] Section C.4.2.2. An interface will be designed that will work in conjunction with the proposed HiPath 8000 [enterprise communications systems platform]. This application will be developed in compliance with published Assistive Technology standards . . . .
GTI also contends
that, given the ratings assigned its proposal under the individual technical
factors, it was wholly inconsistent for SSA to assign the proposal an overall
technical rating of unsatisfactory.
Analogizing to school grading, GTI essentially argues that its overall
evaluation rating should be based upon a straight average of the individual
ratings received.[7] Protest,
As a preliminary matter, GTI ignores the fact that the
technical evaluation factors here were not of equal importance. Rather, as set forth above, the RFP expressly
established that the technical factors were listed in descending order of
importance and that technical approach, where GTI's proposal was found to be
unsatisfactory, was the technical factor of greatest importance.[8] Moreover, where an agency reasonably determines
that an offeror's proposal is unacceptable as to any one evaluation criterion
for failing to conform to material solicitation requirements, it is also
reasonable for the agency to determine that the proposal is unacceptable
overall. See Stewart Distribs.,
B-298975,
GTI also protests that SSA improperly failed to seek clarifications regarding certain technical aspects of its proposal prior to the competitive range determination. The protester argues that the alleged deficiencies found in its proposal related primarily to the TEC's lack of understanding of GTI's technical offering. In such situations, GTI contends, it is incumbent on the agency to seek clarification from the offeror prior to making the competitive range determination.[9]
SSA argues that the deficiencies and significant weaknesses in GTI's proposal were such that they exceeded the permissible scope of clarifications. Further, SSA contends, GTI fails to identify any requirement that the agency provide the offeror with the opportunity to clarify its proposal prior to making the competitive range determination. We agree on both counts.
Federal Acquisition Regulation (FAR) sect. 15.306 describes a
spectrum of exchanges that may take place between a contracting agency and an
offeror during negotiated procurements.
Clarifications are limited exchanges between the agency and offerors
that may occur when contract award without discussions is contemplated; an
agency may, but is not required to, engage in clarifications that give offerors
an opportunity to clarify certain aspects of proposals or to resolve minor or
clerical errors.[10] FAR sect. 15.306(a); Satellite Servs.,
Inc., B-295866; B-295866.2,
As noted above, the informational deficiencies in GTI's technical proposal were significant ones, such that curing them would have involved material changes to the offeror's proposal. Accordingly, such an exchange would have constituted discussions, not clarifications. Lockheed Martin Simulation, Training & Support,
B-292836.8 et
al.,
B-288836,
B-288836.2,
In any event, even assuming, as the protester contends, that GTI could have resolved the many informational deficiencies in its proposal by means of clarifications, whether to seek clarifications is a discretionary decision on the part of the contracting agency, not a right that the offeror possesses; any decision not to seek clarifications here clearly was well within the agency's discretion.[11] Satellite Servs., Inc., supra.
GTI also protests that SSA's decision to exclude its
proposal from the competitive range was unreasonable. The protester argues that a recognized basis
for the establishment of a competitive range is where there is a break or gap
in the offerors' evaluation scores. GTI
contends that no evaluation scoring gap or break existed here between its
proposal and those of Offerors A and C--that the differences between the
technical ratings of Offerors A and C and itself were infinitesimal--such
that SSA's decision to include these offerors' proposals in the competitive
range also mandated the inclusion of GTI's proposal. Comments,
Contracting agencies are not required to retain a proposal
in a competitive range where the proposal is not among the most highly rated or
where the agency otherwise reasonably concludes that the proposal has no
realistic prospect of award. FAR sect. 15.306(c)(1); SDS Petroleum Prods., Inc.,
B-280430,
98-2 CPD para. 59 at 5-6. Where a
proposal is technically unacceptable as submitted and would require major
revisions to become acceptable, exclusion from the competitive range is
generally permissible. CMC &
Maint., Inc., B-290152,
Contrary to GTI's representations, the differences between its technical merit ratings and those of Offerors A and C were in fact substantial. The agency reasonably found that while the technical proposals of Offerors A and C each had a number of weaknesses and areas requiring clarification, the shortcomings were ones that could be readily addressed through proposal revisions. AR, Tab 7, Competitive Range Determination, at 25. By contrast, as detailed above, GTI's technical proposal had numerous significant weaknesses that constituted material failures in meeting the government's requirements, and the deficiencies reasonably could not be addressed without major proposal revisions. Additionally, the protester fails to mention the significant price difference (i.e., more than one-third higher) that existed between its proposal and those of Offerors A and C. Quite simply, GTI's assertion that no evaluation rating gap or break existed between its proposal and those of Offerors A and C is groundless.
More importantly, on this record, there is simply no basis to conclude that the agency was required to find that GTI's lowest-technically rated, highest-priced proposal was among the most highly rated, or that the proposal had any realistic chance of being selection for award. GTI's proposal contained numerous informational deficiencies and other instances of material technical noncompliance which provided a reasonable basis for the agency to exclude the proposal from the competitive range.[12]
The protest is denied.
Gary L. Kepplinger
General Counsel
[1] The RFP required each proposal to consist of three separate volumes--technical approach, business factors, and price factors. The technical approach volume was, in turn, to be structured as follows: 1) TSRP solution architecture and configuration; 2) TSRP solution features; 3) TSRP solution operations and management capability; and 4) TSRP system supplementary features. The solicitation also set forth tables of requirements (cross-referenced to sections of the SOW) that offerors' proposals were to explicitly address. RFP sect. L.2.1.
[2]
The TEC cited, for example, that GTI's proposed TSRP technical solution
required additional development activity in the areas of softphones, management
information system, service observation, in-phone paging, and
multi-conferencing, in order to meet the SOW requirements. The evaluators also noted that GTI's proposal
did not include a clear timetable for these development activities, so the
exact dates when these features would be implemented and operational were
undefined.
[3]
For example, the TEC found that GTI's proposal did not address the SOW minimum
voice service performance parameters when encryption capability was invoked,
did not indicate a built-in wall mount unit (or wall mount kit availability)
for its proposed IP telephone, stated that the intercom in-phone paging
requirement would be available in a future release, did not address the
requirements for a non-locking hold button or for station-to-station calling
with abbreviated dialing, and did not support key features such as call park,
direct call pick-up, and in-phone paging.
[4] GTI proposed the use of OpenStage session initiation protocol (SIP) telephones, manufactured by Siemens Corp. AR, Tab 4, GTI's Proposal, Vol. I, Technical Approach, at 18.
[5]
GTI explains that the proposed OpenStage telephones were in a pre-release phase
with select customers and that, for competitive reasons, the phone's
manufacturer did not announce the availability of the proposed equipment (or
make detailed specifications of the equipment available) until a predetermined
worldwide launch announcement. Comments,
[6] The term softphone refers to the telephone equipment and solution for designated users that require assistive technology, so as to comply with the accessibility standards for individuals with disabilities imposed by section 508 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. sect. 794d (2000), and its implementing regulations.
[7] Using the protester's analogy, GTI's proposal here received grades of F, two C's, and a D for the technical approach, past performance, key personnel qualifications, and management approach factors, respectively, and an F overall. AR, Tab 7, Competitive Range Determination, at 16.
[8] Likewise, GTI's assertion that SSA engaged in disparate treatment by rounding up Offeror B's individual evaluation ratings as part of the firm's overall technical rating (i.e., two goods and two acceptables resulted in an overall technical rating of good) but failed to do the same, or even employ a straight average of the individual evaluation ratings, for GTI, Comments, May 14, 2007, at 8, is also premised on the protester's disregard of the relative weightings of the technical evaluation factors.
[9]
In support of its position, the protester argues that it cannot be charged with
knowledge of the level of sophistication of the evaluation team and should not be
penalized by having its proposal excluded from the competitive range simply
because one or more of the agency evaluators did not understand the offeror's
proposal. Protest,
[10] Similarly, communications are limited exchanges between the agency and offerors after receipt of proposals leading to the establishment of the competitive range. An agency is required to hold communications with offerors whose past performance information is the determining factor preventing their proposals from being placed in the competitive range; otherwise, an agency may, but is not required to, engage in communications with offerors whose exclusion from, or inclusion in, the competitive range is uncertain. FAR sect. 15.306(b)(1); Americom Gov't Servs., Inc., supra at 6. As with clarifications, communications are not to be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, and/or otherwise revise the proposal. FAR sect. 15.306(b)(2).
[11]
GTI also argues that SSA's decision to exclude its proposal from the
competitive range involved disparate treatment, based on the agency's expressed
willingness to seek technical revisions from Offerors A and C as part of the
post-competitive range discussions process but unwillingness to seek technical
revisions from GTI prior to making the competitive range determination. Comments,
[12]
GTI also complains that SSA failed to conduct a proper debriefing. Protest,
B-297374.2,