THIS OPINION, ORIGINALLY ISSUED UNDER PROTECTIVE ORDER, IS RELEASED IN A REDACTED VERSION ON AUGUST 23, 1995 ________________________ GRANTED: August 15, 1995 ________________________ GSBCA 13312-P ADVANCED TECHNOLOGY SYSTEMS, INC./VEDA INCORPORATED, Protester, v. GENERAL SERVICES ADMINISTRATION, Respondent. Donald W. Fowler, William J. Cople III, Robert J. Symon, and Stephen A. Klein of Spriggs & Hollingsworth, Washington, DC; and Daniel B. Abrahams of Epstein Becker & Green, Washington, DC, counsel for Protester. John C. Sawyer, Seth Binstock, and Jody Burton, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges PARKER, NEILL, and VERGILIO. VERGILIO, Board Judge. On July 22, 1995, Advanced Technology Systems, Inc./Veda Incorporated filed this pre-award protest concerning a procurement conducted by the respondent, the General Services Administration, Federal Systems Integration and Management Center (FEDSIM). The protester maintains that aspects of the evaluation of its proposal were contrary to the terms of the solicitation and that the agency improperly excluded it from the competitive range. The protester has demonstrated that the agency acted contrary to the terms of the solicitation in evaluating its proposal. The protester incorrectly asserts that it belonged in the competitive range simply because it submitted an acceptable initial proposal. However, the protester has demonstrated, in making its arguments, that it has a reasonable chance to obtain an award consistent with the terms of the solicitation. Therefore, by not placing the protester in the competitive range, the agency acted improperly. The Board grants the protest. Findings of Fact 1. The agency issued a request for proposals which anticipates award of up to seven indefinite-delivery, indefinite- quantity contracts with provisions for firm-fixed-price and cost- plus-fixed-fee delivery orders. Exhibit 1 at I-7 ( I.3), I-8 ( I.5, FAR 52.216-22 (APR 1984)), L-2 ( L.1.3).[foot #] 1 The procurement seeks to obtain a broad range of high-quality federal information processing (FIP) support services related to the acquisition and development of FIP resources. Id. at C-2 ( C.2, C.3). Evaluation and selection criteria 2. As to the selection criteria, the solicitation provides: The Government anticipates awarding up to seven contracts to those responsible Offerors whose proposals are the most advantageous to the Government, price and other factors considered. Technical proposals will be evaluated based on the factors and subfactors described in Section M.4. The Government is more concerned with obtaining superior technical or management features than with making an award at the lowest overall cost to the Government. Award may be made to other than the lowest priced technically acceptable proposals if another proposal's technical merit justifies the additional cost. Exhibit 1 at M-1 ( M.1). Further, "Any proposals received for less than the total requirement will not be considered further. No waiver will be made for less than the full amount of work." Id. at L-4 ( L.2.8). 3. The technical evaluation criterion consists of three factors: corporate experience (A); corporate organization and management (B); and quality of proposal (C). The weighting is A=4C, B=2C. Exhibit 3 at M-2 ( M.4). The details of only the first and third technical factors are here relevant. "Cost[,] while not a weighted criterion, will be an important evaluation consideration in selecting a contractor under this solicitation." Exhibit 1 at M-1 ( M.3.1). ----------- FOOTNOTE BEGINS --------- [foot #] 1 All referenced exhibits are in the protest file. ----------- FOOTNOTE ENDS ----------- 4. As to the corporate experience factor, the solicitation specifies: Each functional area listed in Section C.4.2 [i.e., software management; communications systems support; satellite communications systems; FIP acquisition support; business process re-engineering; and system integration] will be a subfactor, each of which is of equal importance. Each subfactor will be evaluated according to the following elements, each of which is of approximately equal importance: a. Understanding of the functional area b. Quality of technical approaches and methodologies c. Knowledge of Federal standards, policies, regulations, and laws affecting activities in the functional area d. Similarity of referenced projects to typical FEDSIM projects e. Quality and timeliness of products f. Involvement of Offeror's staff in overall project g. Availability of resources on the project h. Client satisfaction Note: The Government will call references on the project summaries to obtain information or to validate the Offeror's proposal. Exhibit 3 at M-3 ( M.4.1). 5. In section L, the solicitation provides instruction on proposal format and content. Regarding corporate experience, offerors are to provide two recent project summaries. "Use the format in Exhibit L-2. The Government will verify information provided in the project summaries; therefore, names and telephone numbers shall be current and reachable." Exhibit 1 at L-11 ( L.6.1.1). The referenced format requires each summary to specify a "client project manager" (name, title, telephone number) and a "client contracting officer" (name, address, and telephone number). Moreover, the format states: Contact points shall be current and reachable. If the person(s) cited cannot be reached at the telephone number provided, no further attempt will be made to reach that person and the project experience will not be included in the evaluation of the proposal. Id. at L-15 ( 3). 6. Regarding the quality of proposal factor, the solicitation dictates in full: "FEDSIM will be [sic] evaluate the organization, flow, appearance, and grammar of the proposal as an indication of the offeror's ability to prepare the high quality deliverables which will be required under contract DOs [delivery orders]." Exhibit 3 at M-4 ( M.4.3). 7. The proposal format portion of the solicitation ( L.4.1), section L as a whole ("Instructions, Conditions, and Notices to Offerors"), and the solicitation do not explicitly state either that offerors are to prepare proposals in accordance with the FEDSIM Writers Guide or that the evaluators will have a preference for use of active voice. Exhibits 1, 3, 4. However, section L, under a paragraph captioned "quality of proposal," specifies that "offerors shall subject their proposals to the same quality assurance process which would be implemented for a contract resulting from this solicitation and shall certify in the proposal that they have done so." Exhibit 3 at L-13 ( L.6.1.3). And section E--"Inspection and Acceptance"-- contains a paragraph, captioned "Conformance to FEDSIM Writers Guide," which states: "All written deliverables prepared under this contract shall conform to the requirements in the FEDSIM Writers Guide, unless specifically modified in a DO. See Section J." Exhibit 1 at E-1 ( E.3). The Writers Guide does state under "style guidelines" that "FEDSIM encourages using active voice." Id., J, Attachment 1 at 3-1 ( 3, 3.2). Evaluations 8. The agency has not disclosed to the offerors the source selection plan utilized by the source selection evaluation board (SSEB). Transcript at 226-28. Under the plan, [redacted ] Exhibit 2 at 22. [redacted ] Id. corporate experience 9. In scoring the corporate experience factor, the SSEB evaluated each of the six functional areas which were designated as equally rated subfactors. [redacted ] Exhibit 13. 10. Following receipt of initial proposals, the SSEB conducted evaluations, including reference checks. If the person identified in a proposal as a project manager was not available at the telephone number provided, the SSEB inquired if the person was available at another telephone number, or if another project manager was available. The SSEB sought to speak with someone technically knowledgeable about each offeror-identified project. Transcript at 232, 336-37, 339. The contracting officer testified that, given the language in the solicitation, Finding 5, the SSEB did not follow the stated procedure to exclude information if the identified person was not available. Transcript at 206-07, 219-20. 11. In its proposal, under system integration project summary one, the protester identifies the [redacted ] project, with a start and end date of [redacted ] and [redacted ], respectively. Under "client project manager," the proposal identifies a person and provides a telephone number. Exhibit 9 at A.1-325. Two days after receipt of the protester's proposal, the SSEB telephoned the number provided for the person identified. Exhibit 12. The person identified in the proposal was not at the given telephone number at the time of proposal submission or at the time of the reference check. The individual had been reassigned in October 1993--approximately eleven months earlier. Exhibit 22 at 9. 12. The individual responding to the telephone call identified himself and informed the SSEB that the person the SSEB inquired after had been reassigned. The individual identified himself as the project manager on the identified project and as able to provide requested information; the SSEB proceeded to inquire of this individual and conduct its reference check and evaluation. Transcript at 231-32, 236-37. 13. The contacted individual provided a very negative rating, [redacted ], according to one evaluator. Transcript at 241. [redacted ]. Id. at 241, 245-46; Exhibit 12. Although the protester has introduced into the record favorable views regarding the quality of the offeror's work product in the [redacted] project and the satisfaction of some [redacted] personnel with the overall project, the record does not demonstrate that the views of the individual contacted are unsubstantiated or that the SSEB inaccurately interpreted the comments. The protester has introduced into the record testimony of the individual identified in its proposal as the project manager for the reference check; the individual expressed a favorable view of the offeror, but also stated that it had been outside the purview of his job to respond to inquiries regarding the performance of prior contractors; he did not provide answers to such inquiries. Exhibit 22 at 17-19, 22, 24-25. 14. For the corporate experience factor, [redacted ]. The protester received a [redacted] of the six subfactors under corporate experience; it received a [redacted] rating under system integration. Exhibit 11. The SSEB evaluations for the protester state, under system integration: [redacted ] Id. at 3. 15. The cause for the [redacted] rating was the very negative reference received under the first project referenced under systems integration; that is, the evaluators testified that without the negative reference check, the protester's proposal would have received a [] rating for this subfactor and an overall [] rating for the corporate experience factor. Transcript at 245, 488. 16. One member of the SSEB testified that having a negative reference dropped you out of the [] standard for that criteria. That is, a negative reference, even if it were countered by a subsequent positive reference on the same project, would still result in a rating of []. Transcript at 349. "In this case, having a negative reference, even if it was countered by other positive references, would still leave a serious weakness in a functional area." Id. at 350. quality of proposal 17. The SSEB conducted its evaluation for the "quality of proposal" factor, Findings 6, 7. The source selection plan (which has not been released to the offerors) specifies [] elements to be considered in the evaluation. One such element is the use of the active versus passive voice. Exhibit 2 at 75-76. 18. For the quality of proposal factor, the protester received an overall rating of []. The SSEB evaluation for the protester states: [redacted ] Exhibit 11 at 6. The evaluation sheets reveal that the evaluators found a total of [redacted ] in the technical portion of the proposal. Exhibit 11. One SSEB member described his reasons for rating the protester's proposal as [] for this factor: "[redacted ]" Transcript at 489. other offerors 19. For one offeror (within the competitive range), the SSEB identified weaknesses in one of the six functional areas under corporate experience. The weaknesses relate to a negative reference received for one of the two identified projects. The project summary reference check form of one evaluator notes: did not meet original deadlines; many problems; lots of rework; staff--disorganized, not flexible; definitely not satisfied with offeror; not a good value for the money, very expensive. Transcript at 261-63. The weaknesses identified by the SSEB state: "They had a number of problems on the first project. Those deliverables were late and considerable rework was required. Finally, the client would not recommend and would not rehire them." Id. at 258. However, the SSEB rated the offeror as [] in this subfactor, and [] overall for the corporate experience factor. Exhibit 13. 20. Another offeror within the competitive range was rated by the SSEB as having weaknesses under the functional area of business process re-engineering: "They did not discuss applicable standards. They performed less than 50 percent of the work on the second project and their client would not highly recommend them." Transcript at 259-60. An evaluator testified that he viewed the failure to highly recommend as a slightly (or small) negative reference. However, the SSEB rated the offeror as [] in this subfactor, and [] overall for the corporate experience factor. Exhibit 13. Competitive range determination 21. The protester received an overall technical rating of []. For the corporate experience factor it obtained a []; for corporate organization and management it obtained a []; and for quality of proposal it obtained a []. Exhibit 13. [redacted ] offerors received a [] rating for each factor, and, hence, an overall rating of []. Id. 22. [redacted ] Exhibit 13. 23. The contracting officer made the competitive range determination, placing in the competitive range a total of [] offerors. Each of the [] offerors received an overall rating of [] and an overall rating of [] for each of the three technical factors. Exhibit 13. In his memorandum regarding the determination, he notes that the SSEB recommended that the competitive range include only those offerors who received an overall rating of []. The memorandum goes on to state: [redacted ] Exhibit 14. Further, "[redacted ]" Id. 24. The contracting officer testified that the negative reference check played a role in the competitive range determination to not place the protester therein. Transcript at 196-97. Further, "In comparison to all the proposals received, I did not believe they had a reasonable chance to receive a contract award." "What led me to believe that was a comparison of the proposals, both cost and other factors as well as, for instance, in the negative project summary. There was really no way to correct a negative project summary." Id. at 200-01. "Considering the weaknesses identified in the technical evaluation and a comparison of the costs and strengths of other - - and weaknesses of other proposals, I did not believe that [the protester] had a reasonable chance to get an award." Id. at 201. The contracting officer testified more particularly about the effect of the negative reference check: "For one person to say it is outstanding or wonderful and another person to say it was bad, neither one negates the other. They just fold in together. They are not going to be better than acceptable, in my mind." Id. at 218. Thus, "even though they did acceptable work, there are still negative aspects to their performance which have been identified." Id. at 218. Discussion The protester maintains that in evaluating its proposal under the corporate experience factor, the system integration subfactor, and the quality of proposal factor, the agency acted arbitrarily, capriciously, and inconsistently with the evaluation factors set forth in the solicitation. Protest at 14 ( 45), 15 ( 51), 16 ( 55). The protester also contends that the contracting officer improperly failed to include the protester within the competitive range. Id. at 14 ( 46), 15 ( 52), 16 ( 57). Corporate experience The protester objects to the agency's utilization of a negative reference provided by a person not identified in its proposal as the point of contact. The SSEB (and the contracting officer in his competitive range determination) relied upon the input from the individual in deeming the protester's proposal to be entitled to a [] rating (and not []) for the system integration subfactor, and to a [] rating (and not []) for the corporate experience factor. Had the SSEB not relied upon information provided by the unreferenced individual, the SSEB would have rated the protester's proposal as [] for system integration, and as [] for the corporate experience factor. Finding 15. The solicitation establishes the parameters of appropriate procedures for the evaluators to follow in conducting a past performance evaluation of identified projects. Findings 4, 5. In particular, the solicitation requires an offeror to identify a person and a telephone number as a reference for each project reference. Moreover, the solicitation dictates: "If the person(s) cited cannot be reached at the telephone number provided, no further attempt will be made to reach that person and the project experience will not be included in the evaluation of the proposal." Finding 4. This language permits an offeror to identify a project manager (and contracting officer) on a given project (whether on-going or completed) with the assurance that the agency will not utilize a reference from a person not specified in the proposal. Such language, which apparently was not challenged during the procurement process, enables an offeror, should the situation arise, to chose the project manager of a project with the more favorable comments. The SSEB could not, consistent with the plain language of the solicitation, utilize in the evaluation process the comments of the individual not specified as a project reference. The contracting officer appears to have recognized this during his testimony. Finding 10. As a result of the explicit directions provided in the solicitation, the SSEB conducted an evaluation contrary to the terms of the solicitation. Moreover, the SSEB did not evaluate proposals consistently. For the protester, the SSEB deemed a negative reference as precluding a rating of greater than [] because the negative rating constituted a serious weakness and the SSEB determined that positive references could not remove or outweigh such a weakness. Finding 16. However, for another offeror, the SSEB rated a subfactor as [] and the corporate experience factor as [], despite a negative reference; the SSEB did not consider the negative reference to be a significant weakness which would preclude an evaluated rating of []. Findings 19, 8. Had the SSEB not utilized the reference provided by a non-designated person, the protester's proposal could have received a [] subfactor rating and [] factor rating. Findings 15, 20. Quality of proposal In accordance with the source selection plan, the SSEB considered as an evaluation element of the quality of proposal factor the use of active and passive voice in each proposal. Finding 17. Although the solicitation specifies that the agency will evaluate organization, flow, appearance, and grammar, it does not state that proposals be prepared using active voice, nor does the solicitation identify such a preference for the proposal. The solicitation does not explicitly identify the voice of a proposal as an evaluated sub-factor. Findings 6, 7. The Writers Guide encourages use of active voice in writing; however, this guideline is not specified as a requirement. Hence, contrary to the assumption of the SSEB, the solicitation does not indicate that active voice should be a concern of the "quality assurance process" for purposes of proposal preparation. Because the focus on the voice of the proposal goes beyond the solicitation-identified evaluation factors and sub-factors, the SSEB rated the proposals on other than the solicitation factors and sub-factors, thereby violating statute and regulation. Without the passive voice weakness, the evaluated quality of the protester's proposal clearly improves and becomes more competitive for purposes of a best value analysis consistent with the terms of the solicitation. Competitive range Regulation dictates that the "competitive range shall be determined on the basis of cost or price and other factors that were stated in the solicitation and shall include all proposals that have a reasonable chance of being selected for award." 48 CFR 15.609(a) (1994). Moreover, it is recognized that a "contracting officer has broad discretion in determining [a] competitive range, and such decisions are not disturbed unless clearly unreasonable. However, the FAR does not allow a contracting officer to eliminate competitors from the initial competitive range if there is any 'reasonable chance' that they will be selected." Birch & Davis International, Inc. v. Christopher, 4 F.3d 970, 973 (Fed. Cir. 1993) (citations omitted). To the extent that the protester contends that simply because it submitted an acceptable proposal it should have been placed in the competitive range (with the benefits of discussions), the protester misinterprets statute and regulation, as well as case law. In the exercise of discretion, a contracting officer is to determine the competitive range. Some articulable rationale must support a determination that various offerors have a reasonable chance for award and that other offerors do not have a reasonable chance for award. The rationale must be consistent with the terms of the solicitation-- in terms of the evaluation criteria and the selection criteria. As determined in the preceding sections, the evaluations were not consistent with the evaluation factors and sub-factors identified in the solicitation, and were not consistent from offeror to offeror. Accordingly, the contracting officer's reliance upon the specific evaluation results taints the competitive range determination. However, the competitive range analysis of the contracting officer is fundamentally flawed in another respect. [redacted ] The general approach employed by the contracting officer ([redacted ]) does not begin to support the conclusion that the awards will be most advantageous to the Government and that the excluded protester lacks a reasonable chance for award. With adjustments made for evaluation improprieties, [redacted ] it has a reasonable chance for award under the selection criteria of the solicitation. Decision The Board GRANTS the protest. The Board revises the procurement authority of the agency as follows: The agency is required to place the protester within the competitive range. The agency remains obligated to follow statute and regulation in proceeding with the procurement. 40 U.S.C. 759(f)(5)(B) (1988). The Board's order of June 28, 1995, suspending the agency's applicable procurement authority lapses by its terms. _________________________ JOSEPH A. VERGILIO Board Judge We concur: _________________________ _________________________ ROBERT W. PARKER EDWIN B. NEILL Board Judge Board Judge