Comptroller General

United States Government Accountability Office

Washington, DC 20548 

of the United States

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.

Decision 

Matter of: Smart Innovative Solutions

File: B-400323.3 

Date: November 19, 2008 

Joi R. Nolen, Esq., for the protester. 

Sheryl Black for Global Commerce Solutions, an intervenor. 

R. René Dupuy, Esq., Department of Labor, for the agency. 

Cherie J. Owen, Esq., and Ralph O. White, Esq., Office of the General Counsel, GAO,

participated in the preparation of the decision. 

DIGEST

Protester’s contention that its proposal was improperly excluded from the 

competitive range is denied where the protester has not shown that the agency’s 

evaluation was unreasonable or inconsistent with the stated evaluation criteria. 

DECISION

Smart Innovative Solutions (SIS) of Columbia, Maryland, protests the exclusion of its

proposal from the competitive range under request for proposals (RFP) 

No. DOL089RP20495, issued by the Department of Labor for administration of the 

Job Corps National Call Center. SIS argues that its proposal’s exclusion from the 

competitive range was improper because the agency misevaluated its past 

performance and its technical and staffing proposals.

We deny the protest.

BACKGROUND 

This protest involves a procurement where the agency received and evaluated 

21 proposals before concluding that 7 of them would be included in the competitive 

range. The protester--1 of the 14 offerors whose proposals were not included in the 

competitive range--argues that the agency’s evaluation of its proposal, and the 

agency’s subsequent decision to exclude the proposal from further consideration, 

was unreasonable. For the reasons set forth in detail below, we disagree. 
The RFP here was issued on February 27, 2008, and sought offers to operate the Job 

Corps National Call Center. The services contemplated under this contract include 

providing answers to frequently asked questions, referral information, fulfillment of 

product and service requests, and complaint intake. The successful offeror was to

provide services to support web-enabled calling, e-mail, voice and fax 

communication, outbound services, and call transferring. 

The RFP anticipated award to the offeror whose proposal presented the best value 

after evaluation in accordance with the stated factors. RFP at M-6. The evaluation

factors were: (1) technical proposal, (2) staffing resources proposal, (3) past

performance and relevant experience, and (4) cost/price proposal. Id. at M-1. The 

non-price evaluation factors, when combined, were more important than price. Id.

at M-6. 

Twenty-one firms, including the protester, submitted proposals by the due date of

April 4, 2008. The technical evaluation panel (TEP), which consisted of three 

evaluators, evaluated the technical and staffing proposals. Agency Report (AR) at 2. 

The TEP members then presented their scoring sheets to the panel chair. The 

chairperson averaged the point scores assigned by each TEP member to arrive at a 

final TEP finding, and evaluated and verified the offerors’ past performance and 

relevant experience proposals. The chairperson then compiled a final list of

strengths and weaknesses for each offeror, and presented this report to the 

Contracting Officer (CO). CO Statement at 2 & 4. 

The CO used the evaluation report in conjunction with the cost proposals to 

determine the competitive range, which consisted of the top seven ranked proposals. 

CO Statement at 4; AR, Tab 9. The proposal submitted by SIS was ranked eleventh. 

AR, Tab 9. 

With respect to the protester’s proposal, the agency identified several weaknesses. 

Of relevance here, the agency found that SIS’s quality assurance plan lacked 

sufficient detail to determine whether performance outcomes would be met or 

whether the plan was tailored to the Job Corps target population. AR, Tab 7, at 6. 

The agency also found that, with regard to coordination with other Job Corps 

offices, SIS failed to provide a discussion of communication goals, and failed to

provide enough information for the agency to determine the usefulness of SIS’s 

proposed e-newsletter. Id. Further, the agency found that the protester’s proposed 

site manager did not satisfy the educational requirements set forth in the RFP. Id.

at 7. Finally, with regard to the past performance and relevant experience evaluation

factor, the agency awarded SIS 12.5 points, out of a possible 25. The agency 

explained that it had conducted market research which indicated that there are two 

different kinds of call centers: those that only take information from callers on 

incoming calls, and those that handle both incoming and outbound calls. The agency 

considered SIS’s past performance only partially relevant to the services required 

here because SIS had experience running only inbound calling centers, not calling 

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centers that both receive inbound calls and make outbound calls to customers, the 

type of services called for here. AR, Tab 7, at 7, CO Statement at 5. 

By letter dated May 16, the agency notified the protester of the exclusion of its 

proposal from the competitive range. CO Statement at 2. The protester requested a 

debriefing, and the agency provided one on July 6. This protest followed. 

DISCUSSION 

SIS raises several challenges to the agency’s evaluation of its proposal. First, it 

argues that the agency’s technical evaluation was flawed because the TEP failed to 

produce a consensus report and because weaknesses noted in the evaluation report 

appeared to conflict with statements on the scoring sheets of an individual TEP 

member. SIS also argues that the agency improperly imposed an evaluation criterion 

that was not set forth in the solicitation. Further, SIS maintains that the agency’s 

evaluation of its staffing proposal was flawed; specifically, SIS claims that it should 

not have been downgraded for proposing a site manager without a bachelor’s degree, 

because the RFP did not require that the site manager have a degree. Finally, the 

protester argues that the agency incorrectly downgraded its proposal under the past

performance and relevant experience evaluation factor because, although SIS has 

operated a call center, it has no experience with outbound calling services. 

Technical Evaluation

With respect to the evaluation of its technical proposal, SIS maintains that because 

the TEP did not produce a consensus report, the agency’s evaluation is flawed. SIS 

also argues that the unreasonableness of the agency’s evaluation is evidenced by the 

fact that the evaluation report appears to contradict certain statements in one TEP 

member’s scoring sheets. 

The determination of whether a proposal is in the competitive range is principally a 

matter within the reasonable exercise of discretion of the procuring agency. FosterMiller, Inc., B-296194.4, B-296194.5, Aug. 31, 2005, 2005 CPD ¶ 171 at 6. In reviewing 

an agency’s evaluation of proposals and subsequent competitive range 

determination, we will not evaluate the proposals anew in order to make our own 

determination as to their acceptability or relative merits; rather, we will examine the 

record to determine whether the documented evaluation was fair, reasonable, and 

consistent with the evaluation criteria. Ervin & Assocs., Inc., B-280993, Dec. 17, 

1998, 98-2 CPD ¶ 151 at 3. As with any evaluation review, our chief concern is 

whether the record supports the evaluators’ conclusions. Innovative Logistics

Techniques, Inc., B-275786.2, Apr. 2, 1997, 97-1 CPD ¶ 144 at 9. 

As an initial matter, we are aware of no statute or regulation that requires an agency 

to create a consensus report in evaluating proposals, nor is there any requirement 

that every individual evaluator’s scoring sheet track the final evaluation report. See

Andrulis Corp., B-281002.2, June 2, 1999, 99-1 CPD ¶ 105 at 5 (a consensus score 

Page 3 B-400323.3 
need not be the same score as initially scored by the individual evaluators). In short, 

these matters alone will not lead our office to conclude that there was an 

impropriety in the agency’s evaluation or a violation of procurement law or 

regulation. 

More importantly, we have reviewed the record here, and, in our view, there is 

support for the weaknesses the agency noted in the protester’s technical proposal. 

For example, offerors were asked to address how they would coordinate with Job 

Corps regional offices, outreach admissions, career transition services centers, the 

Job Corps data center, and the Job Corps media contractor. Offerors were also

asked to address the challenges they could anticipate and identify strategies to

address those challenges. In its evaluation, the agency noted as a weakness the fact 

that the proposal identified the project manager as the main point of contact for 

coordination, but failed to describe communication goals. AR, Tab 7, at 6. The 

agency also found that, while SIS proposed to use an e-newsletter to provide 

information about the call center, SIS did not provide enough information about the 

newsletter for the evaluators to assess its usefulness. Id. 

As indicated above, we see no basis in the record to disagree with these 

assessments. The SIS proposal provided little information on how its e-newsletter 

would be used to help keep stakeholders informed. Further, the proposal stated that 

the Project Manager (PM) would be responsible for coordinating with stakeholders, 

but contained little explanation of how the PM would do so, other than to state that

she would work to establish a schedule for meetings and reviews. AR, Tab 3, SIS 

Technical Proposal, at 15. Moreover, the proposal’s response to explaining what

challenges it anticipated in coordinating with other Job Corps entities was

particularly unenlightening. The proposal simply stated that “one of the biggest 

challenges to coordinating with so many groups is the coordination of so many 

groups.” Id. 

To the extent that SIS also complains that the agency has imposed an unannounced

evaluation criterion because two of its evaluated weaknesses involve its failure to 

address communication strategies, even though the RFP did not list communication 

as an evaluation factor, we disagree. 

A solicitation must inform offerors of the basis for proposal evaluation, and the 

evaluation must be based on the factors and significant subfactors set forth in the 

solicitation. Federal Acquisition Regulation (FAR) § 15.304(d); Akal Sec., Inc., 

B-271385, B-271385.3, July 10, 1996, 96-2 CPD ¶ 77 at 3. Agencies are required to 

identify evaluation factors and significant subfactors, but they are not required to 

identify all areas of each which might be taken into account provided that any 

unidentified areas are reasonably related to or encompassed by the stated criteria. 

MCA Research Corp., B-278268.2, Apr. 10, 1998, 98-1 CPD ¶ 129 at 8. 

Here, we agree with the agency that how an offeror would communicate with the 

various organizations within the Job Corps was reasonably encompassed by the 

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stated requirement of coordination with other Job Corps offices, since it is unclear 

from the record how there could be coordination with other Job Corps offices

without some communication. 

Staffing Proposal 

SIS also protests DOL’s evaluation of its staffing proposal. In this regard, the RFP 

required that the proposed site manager have “a bachelor’s degree and a minimum of 

three years related experience in communications systems and business 

administration or five years related experience.” The protester argues that this 

provision means that the site manager must have either: (1) a bachelor’s degree and 

a minimum of 3 years related experience in communications systems and business 

administration, or (2) 5 years related experience. Because SIS proposed to provide a 

site manager with 15 years of related professional experience, SIS contends that it 

satisfied the requirement, and that the agency improperly downgraded its staffing 

proposal because the site manager did not have a bachelor’s degree.

The agency, however, reads the requirements of the RFP differently. Under the 

agency’s reading of the specification, the site manager was required to have a 

bachelor’s degree plus a minimum number of years of experience--either 3 years of 

experience in communications systems and business administration, or 5 years of 

related experience. Because SIS proposed a site manager who did not have a 

bachelor’s degree, the agency argues that it was proper to downgrade the protester’s 

staffing proposal. 

While we think the agency’s interpretation of this request is more persuasive than the

protester’s, to the extent that SIS disagrees with the agency’s interpretation of the 

educational requirements required by the solicitation, we view the solicitation as 

patently ambiguous. See Pitney Bowes, Inc., B-294868; B-294868.2, Jan. 4, 2005, 2005 

CPD ¶ 10 at 5. Where a solicitation contains a patent ambiguity, an offeror has an 

affirmative obligation to seek clarification prior to the first due date for responding 

to the solicitation following introduction of the ambiguity into the solicitation. 

4 C.F.R. § 21.2(a)(1) (2008); see Dix Corp., B-293964, July 13, 2004, 2004 CPD ¶ 143 

at 3. Where a patent ambiguity is not challenged prior to such submissions, we will 

dismiss as untimely any subsequent protest assertion that is based on an alternative 

interpretation. Kellogg Brown & Root, Inc., B-291769, B-291769.2, Mar. 24, 2003, 2003 

CPD ¶ 96 at 8; Bank of Am., B-287608, B-287608.2, July 26, 2001, 2001 CPD ¶ 137 

at 10. Our rule that protests of patent ambiguities must be filed prior to responsive 

submissions is intended to facilitate clarification of legitimate questions prior to 

preparation of submissions. Pitney Bowes, Inc., supra, at 5. Since this solicitation 

requirement could be read two ways--and since the ambiguity was apparent from the 

face of the solicitation--SIS may not now assert that the only permissible 

interpretation of this requirement is its own. We therefore think the agency 

reasonably downgraded SIS’s proposal of a site manager who lacks a bachelor’s 

degree. 

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Past Performance and Relevant Experience 

With respect to the evaluation of the past performance and relevant experience 

factor, SIS maintains that it was improper for the agency to downgrade its proposal 

in this area because its past performance included only inbound calling centers, 

rather than centers that also provided outbound follow-up calls. The protester 

argues that the RFP does not indicate that the agency would distinguish between the 

two types of calling centers, and therefore it was improper for the agency to 

differentiate between the two. Protester’s Comments at 7. 

An agency is required to consider the similarity or relevance of an offeror's past 

performance information as part of its evaluation of past performance. See FAR 

§ 15.305(a)(2) (the relevance of past performance information shall be considered); 

DRS C3 Syst., LLC, B-310825, B-310825.2, Feb. 26, 2008, 2008 CPD ¶ 103 at 27; see 

also United Paradyne Corp., B-297758, Mar. 10, 2006, 2006 CPD ¶ 47 at 6. As noted 

above, the agency’s market research indicated that there are two different kinds of 

call centers: those that only take information from callers on incoming calls, and 

those that handle both incoming and outbound calls. 

The Statement of Work (SOW) contained in the RFP here explained that the 

contractor for the Job Corps call center would be required to provide more than just 

“intake” services. CO Statement at 5. The SOW specified that, in addition to

responding to inbound telephone inquiries, certain outbound calling services would 

be required. These include performing outbound callbacks to: follow up with callers

whose inquiries were not answered during the initial call; verify problem resolution; 

discuss with Job Corps partners issues that could not be resolved during initial 

contact with the customer; perform customer surveys and measure customer 

satisfaction; and return calls from customers using TDD/TTY [Telecommunications 

Device for the Deaf/Teletypewriter] devices. AR, Tab 2, at C-8. 

Because SIS’s prior experience involved only the first type of calling center, the 

agency concluded that SIS’s past performance references were less relevant than 

references for other offerors with the broader experience operating call centers that

perform both inbound and outbound calling services. While we recognize that the 

agency’s evaluation in this regard was somewhat harsh, since there is no evidence 

that this approach was applied inconsistently, and the evaluation reflects a 

reasonable business judgment by DOL, we think the agency’s evaluation was 

unobjectionable. 

The protest is denied. 

Gary L. Kepplinger 

General Counsel 

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