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Saturday, September 20, 2014

The key personnel difference between responsiveness and responsibility

Sometimes the difference between contractor responsibility and bid responsiveness can be slippery to catch. This is particularly true when services rather than things are being procured.

Under the ABA Model Procurement Code regime, as adopted on Guam, the determination of responsibility is made by examining certain standards of responsibility. Among relevant inquiries is the judgement of the prospective contractor's ability to perform the contract, or the ability to obtain the necessary requirements to perform when performance comes due. Capability is to be determined before award of contract, and can be assessed through an inquiry process after bids or offers are opened.

Responsiveness, however, means submitting all material requirements to provide the government the exact thing or service that the solicitation demands. Responsiveness is answered from data submitted in the bid or offer, and is not curable by submission of revised bids or offers after opening.

It is fundamental that matters of responsibility cannot be transformed into issues of responsiveness by requiring submission of evidence of responsibility in the bid or offer.

These general principles are often reflected in procurement regimes other than the ABA Model Code, such as the US federal acquisition rules for request for task order proposals ("RTOP"), as the following decision of the GAO indicates. Again, I remind readers to read the original material at the link; that which follows is edited in ways that may distort the actual case, and often excludes additional issues of interest.

Matter of: Paradigm Technologies, Inc., File: B-409221.2; B-409221.3, August 1, 2014
The RTOP was issued pursuant to Federal Acquisition Regulation (FAR) § 16.505 to holders of MDA Engineering and Support Services multiple award contracts. The solicitation provided for the issuance of a cost-plus-fixed-fee task order for various strategic planning and financial support services for a base year and two option years.

Offerors were informed that the task order would be issued on a best-value basis, considering technical, past performance, small business utilization past performance, cost, and small business utilization. The technical factor was considered to be significantly more important than all other factors, and consisted of four, equally-weighted subfactors: approach, labor mix, key personnel, and transition.

As relevant here, with respect to the key personnel subfactor, offerors were required to propose as key personnel a contract program manager and a task order lead. In this regard, offerors were instructed to submit resumes for these two key personnel, as well as for any subject matter experts that were proposed.

MDA received proposals from Paradigm (the incumbent) and Booz Allen, which were evaluated by the agency’s technical evaluation team, past performance evaluator, and cost/price evaluation team. The technical evaluation and past performance teams assigned adjectival ratings under the evaluation factors for each proposal, supported by a narrative that identified strengths, significant strengths, and weaknesses. MDA conducted several rounds of discussions with the offerors, and requested final proposal revisions (FPR). Booz Allen submitted its FPR on July 22, 2013, in which it provided resumes for the contract program manager (Ms. G) and the task order lead.

On August 5, Booz Allen’s proposed contract program manager, Ms. G, notified Booz Allen that she had accepted a position with another firm. On October 23, MDA selected Booz Allen for issuance of the task order, and on October 28, Booz Allen notified the contracting officer of Ms. G’s departure and proposed to provide Mr. H as the new contracts program manager.

Following a debriefing, Paradigm protested to our Office on November 4, arguing, among other things, that Booz Allen proposed a key person, Ms. G, that Booz Allen knew would be unavailable. MDA informed our Office that it would reevaluate proposals and make a new selection decision. We dismissed the protest as academic.

In the reevaluation of FPRs, as relevant here with respect to the evaluation of Booz Allen’s proposal under the key personnel subfactor, the technical evaluation team noted that, “on information and belief,” Booz Allen’s proposed contract program manager, Ms. G, was no longer employed by Booz Allen.

Although the evaluation team did not change Booz Allen’s satisfactory subfactor rating, it assigned a weakness for Booz Allen’s failure to provide one of the two required key personnel. In this regard, the evaluators stated that the risk regarding Booz Allen’s ability to satisfy key personnel requirements “is mitigated to some degree by the fact that [Booz Allen] has the demonstrated ability to recruit and hire qualified personnel to fulfill the Key Personnel ([contract program manager] in this case) duties.”

The selection authority recognized that Paradigm’s proposal was rated higher than Booz Allen’s under the technical and past performance factors, and that the technical factor was significantly more important than any other factor. The selection authority, however, concluded that the difference between the two technical proposals was not as significant as the adjectival ratings implied. In this regard, he also noted that, although Paradigm’s proposal presented virtually no performance risk to the government, Booz Allen’s proposal presented a low to moderate performance risk. The selection authority acknowledged that Paradigm’s highly-rated proposal was worth paying some amount of cost premium, but concluded that the merit of Paradigm’s proposal was not worth the substantial cost premium.

The selection authority again selected Booz Allen to receive the task order. After a debriefing, Paradigm protested to our Office.

As explained below, we sustain Paradigm’s challenge to the agency’s evaluation of Booz Allen’s contract program manager.

Paradigm argues that Booz Allen’s FPR was technically unacceptable, complaining that MDA in its reevaluation of proposals knew that Booz Allen’s proposed contract program manager, Ms. G, was no longer employed by the firm and would not be available to perform under the task order. Protest at 22. Paradigm contends that, because offerors were required to propose a contract program manager as a key person, Booz Allen’s lack of a contract program manager failed to satisfy a material solicitation requirement. Paradigm also argues, in the alternative, that MDA allowed Paradigm after the submission of FPRs to substitute a new contract program manager, in effect reopening discussions with only Booz Allen.

It is a fundamental principle in a negotiated procurement that a proposal that fails to conform to a material solicitation requirement is technically unacceptable and cannot form the basis for award.

The proposal of a contract program manager is a material solicitation requirement, as offerors were required to identify a specific individual for this key position by submitting a resume. When Ms. G left Booz Allen’s employment, Booz Allen’s FPR no longer satisfied this material requirement.

Although MDA considered this failure to be a weakness [affecting responsibility], it was in fact a deficiency. A weakness generally reflects a proposal flaw that increases the risk of unsuccessful performance, while a deficiency reflects the failure of a proposal to meet a material requirement.

Our concern here is with MDA’s failure to recognize that Booz Allen’s revised proposal could not be viewed as satisfying the solicitation’s key personnel requirements. That is, having been informed prior to its reevaluation of proposals and making a new selection decision that Booz Allen’s FPR no longer satisfied requirements concerning a key person, MDA could not simply accept Booz Allen’s revised proposal and consider the matter a weakness.

We recommend that MDA either reject Booz Allen’s proposal as unacceptable or reopen discussions, obtain revised proposals, and make a new selection decision. If Booz Allen’s proposal is rejected or Paradigm’s proposal is found to offer the best value to the government, the agency should terminate Booz Allen’s task order for the convenience of the government and issue a task order to Paradigm. We also recommend that the protester be reimbursed its reasonable costs of filing and pursuing the protest, including attorneys’ fees.
This case reflects that, just as a solicitation cannot convert a matter of responsibility into an issue of responsiveness, nor can an evaluator convert a material specification factor into a matter of responsibility.

The key to understanding this case is to focus first on what it was that the government demanded to receive. Here, the government demanded a particular service. It sought to acquire "various strategic planning and financial support services." Having sought services, it set parameters for the services it specifically wanted. This was not a case where the services were merely incidental to what was required. These services were precisely what the government wanted to acquire. Responsiveness speaks to the question, does this bid or offer give the government what it wants. Responsibility speaks to the question, does this bidder or offeror have the capability and integrity to give the government what it wants under the contract terms required for performance.

Thus, when the government described the specific services it wanted, it wanted to know who that service provider was and the qualifications of that person. When that person was not identified in the request for final proposals, the proposal was unacceptable, which is to say nonresponsive. 

The award was then made to the nonresponsive offeror anyway, because the agency changed focus, saying that while the offeror failed to have the thing needed at the time of submission of final proposals (the functional equivalent to bid opening), the offeror had the ability to obtain that requirement later.  

Having the ability to become capable of performance when it is required is an element of responsibility, however, not responsiveness.  It was error to treat an issue of responsiveness in the manner of determining responsibility. Weaknesses in evidence of responsibility can be cured after bid opening, up to time of award, or even required performance in some cases, whereas acceptability, that is responsiveness, is determined at bid opening and cannot be cured afterwards.

The GAO stated the obvious (but perhaps not so obviously): that a nonresponsive bid cannot be cured with a responsibility analysis.
"The proposal of a contract program manager is a material solicitation requirement [in a solicitation for "for various strategic planning and financial support services"], as offerors were required to identify a specific individual for this key position by submitting a resume. ... Although MDA considered this failure to be a weakness [affecting responsibility], it was in fact a deficiency. A weakness generally reflects a proposal flaw that increases the risk of unsuccessful performance, while a deficiency reflects the failure of a proposal to meet a material requirement."

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