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University of Massachusetts Donahue Institute, B-400870.3, July 15, 2009

  • By GCPC GovCon Legal Team
  • July 15, 2009
  • DebriefingTimeliness of Protest

Link:   GAO Opinion

Agency:          Department of Health and Human Services

Disposition:  Protest dismissed in part, denied in part.

__________________________________________________________________________________________________________________

GAO Digest:

 1. Post-award protest challenging agency’s elimination of proposal for region-wide consortium approach that was filed more than 3 months after protester received notice of the proposal’s elimination is not timely where protester received all of the information on which the protest is based at the time the proposal was eliminated; exception to timeliness rules based on receipt of a debriefing is inapplicable where protester chose to delay debriefing regarding the eliminated proposal until after award.

2. Selection of higher-rated, higher-priced proposals is unobjectionable where the agency reasonably determined that various aspects of awardee’s proposals, that established their technical superiority, outweighed the protester’s price advantages.

General Counsel P.C. Highlight:

University of Massachusetts Donahue Institute (UMDI), protests the actions of the U.S. Department of the Interior, National Business Center Acquisition Services Directorate (AQD), in connection with four contracts awarded to Education Development Center, Inc. (EDC), on behalf of the U.S. Department of Health and Human Services (HHS), to provide training and technical assistance services for HHS grantees in the states of Massachusetts, Connecticut, Rhode Island and Maine pursuant to a request for proposals (RFP). GAO dismisses the protest in part and denies it in part.

UMDI first argues that, in obtaining the statutorily required input from the grantees, the agency improperly permitted the grantees to assess UMDI’s particular proposed approach and, therefore, the agency evaluators improperly abdicated their evaluation decision to the grantees. GAO states that the bid protest timeliness rules provide that protests, other than those based on alleged solicitation improprieties, shall be filed not later than 10 days after the basis of the protest is known or should have been known. Although an exception to this rule exists with regard to protests challenging a procurement under which a debriefing is requested and, when requested, is required, this exception is inapplicable where a protester’s proposal is eliminated from a competition prior to award, and the protester chooses to delay receipt of a debriefing regarding that elimination until after award.

Here, more than three months prior to the time UMDI protested the agency’s elimination of its six-state consortium proposal, UMDI clearly knew, or should have known, all of the information on which that portion of its protest is based. Since UMDI expressly chose to delay receipt of a debriefing regarding elimination of that proposal until after award, the exception to GAO’s timeliness rules based on receipt of a required debriefing is inapplicable. Accordingly, UMDI’s protest challenging the agency’s elimination of the six-state consortium proposal from the competition is not timely filed; that portion of the protest is dismissed.

UMDI also challenges the agency’s source selection decisions leading to award of contracts to EDC for the states of Massachusetts, Connecticut, Rhode Island, and Maine. UMDI notes that each of its individual state proposals offered a lower price than the competing proposals offered by EDC, and asserts that the agency failed to perform an adequate or reasonable price/technical tradeoff analysis in selecting EDU’s higher-priced proposals for award. GAO states that in reviewing protests of allegedly flawed best value determinations, GAO will examine the record to determine whether the agency’s judgments were reasonable and consistent with the solicitation’s stated evaluation criteria and applicable procurement laws. Where, as here, a solicitation provides that technical factors are more important than price, source selection officials have broad discretion in determining whether one proposal’s technical superiority is worth its higher price. In this regard, a protester’s mere disagreement with the agency’s judgments provides no basis to question the reasonableness of those judgments, and GAO will not disturb awards based on higher-rated, higher-priced proposals, so long as the agency’s decision is reasonable, consistent with the solicitation’s stated criteria, and adequately documented. Further, in the context of price/technical tradeoffs, offerors should not attach unwarranted significance to an agency’s application of adjectival ratings, since such ratings are merely guides to intelligent decision-making, and the actual qualitative differences between proposals, as reflected in the agency’s supporting documentation, are considerably more significant in determining whether an agency’s source selection decisions were reasonable; that is, the essence of an evaluation is reflected in the evaluation record itself, not the adjectival ratings.

With regard to the individual state proposals for Massachusetts, EDC’s proposal received an overall technical rating of Excellent, with an evaluated price of $3,903,842, while UMDI’s proposal received an overall technical rating of Very Good, with an evaluated price of $3,642,606. In evaluating EDC’s proposal for Massachusetts, the agency found no weaknesses under any evaluation factor, and identified multiple strengths. In evaluating UMDI’s proposal, the agency identified certain strengths, but also identified weaknesses applicable to every technical evaluation factor. Regarding proposed prices, the evaluation record reflects the agency’s consideration of each offeror’s proposed labor rates, the total number of labor hours on which each price is based, and the amount of travel costs each proposed price reflects.

With regard to the individual proposals for Connecticut, EDC’s proposal received an overall technical rating of Excellent, with an evaluated price of $3,069,044, while UMDI’s proposal received an overall technical rating of Very Good, with an evaluated price of $2,381,258. In evaluating EDC’s proposal, the agency evaluators identified and documented various strengths. In evaluating UMDI’s proposal, the agency identified certain strengths, but also identified various weaknesses. With regard to the offerors’ proposed prices for Connecticut, the agency’s evaluation record reflects its consideration of each offeror’s proposed labor rates, the total number of labor hours on which each price is based, and the amount of travel costs each proposed price reflects.

With regard to the individual proposals for Rhode Island, EDC’s proposal received an overall technical rating of Excellent, with an evaluated price of $2,428,495, while UMDI’s proposal received an overall technical rating of Very Good, with an evaluated price of $1,961,525. In evaluating EDC’s proposal for Rhode Island, the agency identified various strengths. In evaluating UMDI’s proposal for Rhode Island, the agency identified various strengths, but also multiple weaknesses. With regard to proposed prices for Rhode Island, the agency’s evaluation record reflects consideration of each offeror’s proposed labor rates, the total number of labor hours on which each price is based, and the amount of travel costs.

With regard to the individual proposals for Maine, EDC’s proposal received an overall technical rating of Very Good, with an evaluated price of $2,449,859, while UMDI’s proposal also received a technical rating of Very Good, with an evaluated price of $1,978,601. In evaluating EDC’s proposal for Maine, the agency concluded that it reflected various strengths. In evaluating UMDI’s proposal for Maine, the agency acknowledged various strengths, but also identified multiple weaknesses. Based on the various weaknesses identified in UMDI’s proposal, the evaluation record stated that the risk to the government is considered moderate to high. With regard to proposed prices for Maine, the agency’s evaluation record reflects its consideration of each offeror’s proposed labor rates, the total number of labor hours on which each price is based, and the amount of travel costs each proposed price reflects.

Based on the agency’s comprehensive evaluation record GAO finds no merit in UMDI’s assertions that the agency failed to adequately consider UMDI’s lower prices in selecting EDC’s proposals for the four protested contract awards. To the contrary, the agency record clearly establishes that the agency specifically considered the price differences between the proposals, performed various analyses regarding the basis for those differences and, in the context of EDC’s technically superior proposals, reasonably concluded that various aspects of that technical superiority outweighed the higher prices. The protest is denied.

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