PROTESTER'S MOTION FOR SUMMARY RELIEF DENIED: November 6, 1992
GSBCA 12092-P
CBIS FEDERAL INC.,
Protester,
v.
DEPARTMENT OF THE INTERIOR,
Respondent,
and
COMPUTER BASED SYSTEMS, INCORPORATED,
Intervenor.
Rand L. Allen, Stanley R. Soya, Phillip H. Harrington, and
David A. Vogel of Wiley, Rein & Fielding, Washington, DC, counsel
for Protester.
Alton Woods and James L. Weiner, Division of General Law,
Office of the Solicitor, Department of the Interior, Washington,
DC, counsel for Respondent.
J. Patrick McMahon, Vienna, VA, counsel for Intervenor.
Before Board Judges DEVINE, DANIELS, and WILLIAMS.
DANIELS, Board Judge.
CBIS Federal Inc. maintains that the Department of the
Interior's United States Geological Survey (USGS) acted in
violation of law in awarding a contract to Computer Based
Systems, Incorporated. According to the protest, USGS erred in
evaluating technical and price proposals, as well as in balancing
technical merit against cost savings to determine the awardee.
Protester contends further that the awardee should also be denied
the contract because contrary to solicitation requirements, it
has tendered key personnel other than those included in its
proposal.
Protester has filed a motion for summary relief. The premise
of the motion is that documents and statements made by the agency
in discovery establish that --
Either USGS awarded the contract to an
offeror whose proposal did not meet the RFP's
[request for proposal's] stated minimum
requirements, or the RFP did not express
USGS's actual minimum needs; and
The "acceptable/not acceptable" technical
evaluation scheme actually used by USGS was
inconsistent with the "greatest value" scheme
set forth in the RFP.
Although we agree with some of protester's contentions as to
the legal import of solicitation provisions, we are persuaded by
the agency and the awardee (which has intervened in the protest)
that the motion should be denied.
The acronyms generally used to represent the names of the
protester (CBIS) and the awardee (CBSI) are so similar that their
use in this protest has proved confusing. For this reason, in
this opinion, we refer to protester, whose parent is Cincinnati
Bell Information Systems, as "Cincinnati Bell."
Background
1. On May 11, 1992, USGS issued a solicitation requesting
proposals to supply automatic data processing (ADP) facilities
management services to the agency's facility in Reston, Virginia,
over a five-year period. Protest File, Exhibit 1 at 2, 8, 234-
40.
2. The solicitation states two kinds of requirements for
staff positions. First, it lists numerous types of positions
"which are required under this [statement of work]." Protest
File, Exhibit 1 at 13. There are thirteen of these categories,
which bear titles such as "Computer Operations/Production Control
Overall Site Manager," "Shift Supervisor," "Senior Computer
Operator," and "Supervisory Computer Support Specialist." Id. at
15-20, 220-21. For each of the positions, a job description and
statement of minimum required experience is prescribed. Id. As
an example of the statement of experience, for the supervisory
computer support specialist position, the solicitation says:
"This position requires six (6) years ADP experience with two (2)
years as a supervisor in Computer Operations or Production
Control in a mainframe environment." Id. at 17. Additionally,
for all positions other than computer operator trainee, "all
proposed individuals must have received their experience while
working in a large mainframe computer environment similar to the
USGS GPCC [General Purpose Computer Center]." Id. at 13.
3. The second kind of experience requirement contained in
the solicitation does not pertain to any particular individuals.
It states that "contractor personnel shall have" experience in
twelve general and fourteen specific areas. The general areas
include "Data processing," "Large scale third generation computer
systems," and "Production Control work in large data processing
computer centers." The specific areas include "Operation of IBM
370 architecture and analogous systems operating under IBM
Multiple Virtual Storage (MVS)," "Operation of Amdahl 5890
mainframe computer with Multiple Domain Feature [(]MDF)," and
"IBM Job Control Language (JCL) knowledge." Protest File,
Exhibit 1 at 14.
4. Among the thirteen categories of positions, seven --
involving seventeen people -- are designated "key personnel."
Protest File, Exhibit 1 at 79, 229. For evaluation purposes,
each offeror was to supply resum s for individuals proposed to
fill these positions. Id. at 121-23; see also id. at 129. Each
resum was to "be evaluated to determine the Contractor's
compliance with the minimum qualifications for each indicated
skill level as required in the Position Description" (see 2).
Id. at 121. The solicitation goes on to say:
Qualified resumes will be scored for degree
of significant experience. Significant
experience is that specialized experience
which, (1) includes direct, participatory
involvement; (2) was of duration to achieve a
continuing expertise; and, (3) was of a level
of responsibility appropriate to the skill
level for which the resume is offered.
Id.
5. With additional reference to evaluation of proposed
personnel, the solicitation provides, "A college degree, college
course work, specific training, and practical experience is
highly desireable [sic]." Id. at 129. In response to a question
about this statement, the agency said that these items are not
mandatory. Id. at 253.
6. The solicitation states that "[a]ward shall be made to
that offeror whose proposal, conforming to this solicitation, is
determined to be most advantageous to the Government, cost or
price and other factors considered." Protest File, Exhibit 1 at
130. The principal "other factor" is "[t]he offeror's technical
evaluation and score;" within that factor, "Personnel and
Experience" was the most important subfactor. Id. at 129, 130.
The solicitation explains:
In determining which proposal offers the
greatest value or advantage to the
Government, overall technical merit will be
considered more important than price or cost.
The degree of importance of price or cost as
an evaluation factor will increase with the
degree of equality in the technical merits of
the proposals. Between acceptable proposals
with a significant difference in technical
rating, a determination will be made as to
whether the additional technical merit or
benefits reflected by a higher priced
proposal warrants payment of the additional
price or cost.
Id. at 130.
7. Cincinnati Bell and CBSI both submitted proposals in
response to this solicitation. Protest File, Exhibit 2a.
Cincinnati Bell received the maximum possible number of points
for its technical proposal. CBSI received slightly less; it was
given less than the maximum for its proposed personnel. Id. at
305-08. Cincinnati Bell's evaluated price was slightly higher
than CBSI's evaluated price of $8,857,927. Id., Exhibit 5 at
626-28, 631. USGS awarded the contract to CBSI after determining
that there was no significant difference between the proposals in
terms of technical merit. Id. at 631; Respondent's Answers to
Protestor's First Set of Interrogatories and Request for
Production of Documents at 5 ( 2(b)).
8. In response to a request by Cincinnati Bell, USGS has
admitted that "USGS awarded maximum points to proposals that met
the RFP's minimum requirements for required staff positions."
Government's Responses to Protestor's First Request for
Admissions at 3-4 ( 9).
9. The evaluators' scoresheets show that all three
evaluators rated several of CBSI's proposed key personnel at less
than the maximum possible score. Protest File, Exhibit 2b at
329-30, 428-31, 540-41. Based solely on our deciphering of the
scoresheets, however, we cannot conclude that the evaluators'
concerns relate specifically to the requirements described in
paragraph 2 above. Rather, they appear to relate to the
requirements described in paragraph 3 above. The technical
evaluation committee's report states that CBSI's proposed
personnel "meet and some exceed the criteria" expressed in the
solicitation. Id., Exhibit 2a at 307.
10. Some of the evaluators' scoresheets contain comments
that portions of Cincinnati Bell's technical proposal exceeded
the solicitation's minimum requirements. Protest File, Exhibit
2b at 349, 459, 462. The technical evaluation committee's report
states that Cincinnati Bell's proposed personnel "either meet or
exceed the criteria." Id., Exhibit 2a at 305.
11. Four other firms also submitted proposals in this
procurement. Protest File, Exhibit 5 at 612. Two of the
technical proposals were considered acceptable by USGS. Id.
Neither of these was rated as highly as Cincinnati Bell or CBSI.
Id., Exhibits 2a, 5 at 613.
12. The solicitation provides that "[d]uring the first 90
days of performance, the Contractor shall make no substitutions
of key personnel unless the substitution is necessitated by
illness, death, or termination of employment." Protest File,
Exhibit 1 at 79. The contract was awarded on September 28. Id.,
Exhibit 9 at 1. On October 7, CBSI asked USGS for permission to
substitute purportedly better-qualified individuals for five of
the people named in the firm's proposal as key personnel. The
contractor stated, "If these are not satisfactory replacements,
CBSI will provide the individuals that were originally proposed."
Respondent's Production of Documents, Exhibit 8 (supplied by
protester).
Discussion
Cincinnati Bell asks us to conclude from the facts stated
above that CBSI was ineligible for award because some of the
individuals it proposed as key personnel did not meet minimum
mandatory requirements. The principal reason suggested for
reaching this result is that USGS admitted it "awarded maximum
points to proposals that met the RFP's minimum requirements for
required staff positions;" some of CBSI's proposed personnel
received less than maximum scores from the agency's evaluators;
and CBSI's overall personnel score in the technical evaluation
was less than optimum. See Background, 7-9.
USGS responds that the citation to the agency admission is
misleading, and CBSI says that the admission itself should be
disregarded because it is contrary to fact. USGS argues further:
None of the stated qualifications were
mandatory requirements or qualifications but
set forth general qualifications to be met by
the offeror's personnel. Government
witnesses will testify that if an offeror did
not meet the stated qualifications [it]
simply received less points in this category.
However, [it was] not in any way disqualified
from receiving the award.
Government's Opposition to Protester's Motion for Summary
[Relief] at 4.
In our judgment, all three parties have misunderstood the
situation. The admission is a red herring; Cincinnati Bell and
CBSI have read it to say that the agency awarded maximum points
to all proposals that met the minimum requirements, but the word
"all" is clearly not present. The statement can just as easily
be read to say merely that some of the proposals that met minimum
requirements got maximum scores -- and on protester's motion for
summary relief, we must give it this reading. A. B. Chance Co.
v. RTE Corp., 854 F.2d 1307, 1310-11 (Fed. Cir. 1988); Armco,
Inc. v. Cyclops Corp., 791 F.2d 147, 149 (Fed. Cir. 1986) (on
such a motion, all reasonable inferences to be drawn in favor of
non-movant). Indeed, the fact that two other firms' proposals
were considered acceptable, though they received lesser scores
than either Cincinnati Bell or CBIS, indicates that the second
interpretation is likely correct. See Finding 11. Consequently,
the fact that CBSI did not receive maximum points for its
proposed personnel does not render its proposal ineligible for
award.
We can conclude as a matter of law that the solicitation
established minimum mandatory requirements for key individuals.
Sysorex Information Systems, Inc., GSBCA 10642-P et al., 90-3 BCA
23,181, at 116,371-72, 1990 BPD 193, at 20, aff'd, sub nom.
SMS Data Products Group, Inc. v. Austin, 940 F.2d 1514 (Fed. Cir.
1991). USGS's statement that no such requirements existed is
plainly refuted by the language of the document itself. The
requirements were of two varieties -- specific qualifications
which each individual had to meet (Background, 2) and other
prerequisites which the proposed key personnel had to meet as a
team (Background, 3). As to the second category, we note that
the qualifications are for "contractor personnel," not any
particular (or each) position, and that there are so many areas
listed (twenty-six, of which twelve are highly specific) that
expecting each person to have experience in all of them would be
unreasonable.
Based on the scoresheets to which Cincinnati Bell points us,
we find that the evaluators had concerns about whether various
members of the CBSI team had the kinds of experience which the
team as a whole had to have. Background, 9. This is not
enough to establish that any of the individuals was inadequate
under the agency's standards. If this is all that USGS means
when it says that "if an offeror did not meet the stated
qualifications [it] simply received less points in this category
. . . [but was] not in any way disqualified from receiving the
award," the evaluation of resum s may have been proper. If the
agency truly evaluated proposals under the impression that the
solicitation did not mandate minimum requirements, however, it
was not following its own rules.
Cincinnati Bell would also have us believe that its
technical proposal should have received a considerably higher
score than CBSI's because the evaluators thought that Cincinnati
Bell's proposed personnel "either meet or exceed the criteria" of
the solicitation. See Background, 10. The reason that
Cincinnati Bell is so concerned about the relative merit of
technical proposals is that although protester's technical
proposal was rated slightly preferable to CBSI's, its proposal
was also higher priced, and the solicitation makes clear that
award will go to the lower-priced offeror unless the technical
difference is significant. See Background, 6-7.
In response to Cincinnati Bell's contention, CBSI points us
to another evaluators' statement, that CBSI's personnel "meet and
some exceed the criteria." See Background, 9. We agree with
Cincinnati Bell that the solicitation indicates that resum s will
be qualitatively scored -- the document says so expressly in at
least two places (Background, 4, 5) and implicitly by
indicating that a technical proposal may be superior to another
even if both meet minimum standards (Background, 6). We have
been given no reason to believe, however, that Cincinnati Bell's
proposed personnel were materially superior to CBSI's; the record
as established thus far shows only that Cincinnati Bell's people
were considered by USGS to be a bit better. The evaluation of
resum s of an offeror's key personnel is highly subjective, and
we must consequently give deference to the agency in this matter.
Computer Sciences Corp., GSBCA 11497-P, 92-1 BCA 24,703, at
123,297, 1992 BPD 6, at 32. For Cincinnati Bell to prevail as
to this allegation, it must prove that USGS's evaluation was
clearly erroneous -- an abuse of discretion demonstrating a
"gross disparity or unfairness." Corporate Jets, Inc., GSBCA
11049-P, 91-2 BCA 23,998, at 120,118, 1991 BPD 111, at 17;
Health Systems Technology Corp., GSBCA 10920-P, 91-2 BCA
23,692, at 118,643, 1991 BPD 20, at 13-14.
In the motion for summary relief, Cincinnati Bell states as
a material fact the existence of a CBSI letter proposing to
substitute for key personnel after award. Background, 12.
Protester does not offer argument as to this matter, but we
assume it placed the fact before us for the purpose of seeking a
ruling as to a count of the protest. The solicitation required
that with limited exceptions, key personnel stay on the job for
the first ninety days of contract performance. Id. CBSI asked
USGS for an exception from this rule, but told the agency very
clearly that if the exception was not granted, CBSI would live up
to its contractual obligations. Id. Without more, this is
insufficient to establish the existence of the sort of "bait and
switch" scheme that taints a contract award. See Electronic Data
Systems Federal Corp., GSBCA 9869-P, 89-2 BCA 21,655, 1989 BPD
69, reconsideration denied, 89-2 BCA 21,778, 1989 BPD 111,
aff'd in part, vacated in part, sub nom. Planning Research Corp.
v. United States, 971 F.2d 736 (Fed. Cir. 1992).
Decision
Protester's motion for summary relief is DENIED.
_________________________
STEPHEN M. DANIELS
Board Judge
We concur:
_________________________ _________________________
DONALD W. DEVINE MARY ELLEN COSTER WILLIAMS
Board Judge Board Judge