Decision 

Matter of: Health and Human Services Group 

File: B-402139.2 

Date: April 8, 2010 

Brian J. Donovan, Esq., Jones & Donovan, for the protester. 

Danielle N. Raymond, Esq., and John Sabatino, Esq., Department of Homeland 

Security, Bureau of Customs and Border Protection, for the agency. 

Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, 

participated in the preparation of the decision. 

DIGEST 

Protest that agency unreasonably evaluated protester’s proposal is denied where 

record shows that evaluation was consistent with solicitation’s evaluation criteria, 

and was not otherwise improper. 

DECISION 

Health and Human Services Group (HHSG), of Mission Viejo, California, protests the 

award of a contract to EAP Consultants, Inc., of Marietta, Georgia, under request for 

proposals (RFP) No. CBP-HSBP1008R1618, issued by the Department of Homeland 

Security (DHS), Bureau of Customs and Border Protection, for employee assistance 

services. HHSG asserts that the agency unreasonably evaluated its technical 

proposal. HHSG also asserts that the agency unreasonably evaluated EAP’s 

experience and past performance, and the realism of its offered price. 

We deny the protest. 

The solicitation provided for award on a “best value” basis considering several 

factors: technical approach/general knowledge, personnel qualifications/staffing 

plan, project management plan, quality assurance plan, transition plan, past 

performance, and price. 1

 RFP at 48-49. Following the submission and evaluation of 

 

(continued...) 

United States Government Accountability Office

Washington, DC 20548 

Comptroller General

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. 

1

 While the solicitation also referred to award based on low price and technical 

acceptability, this reference was only in the context of possible bases for award. 

RFP at 50. The solicitation otherwise made it clear that DHS would evaluate 
initial proposals, discussions, and the submission and evaluation of final proposal 

revisions (FPR), EAP’s proposal was ranked highest and HHSG’s third highest. 

EAP’s proposal received a technical score of 95.5 (of 100 available) points--37 (of 40) 

for technical approach/general knowledge, 15 (of 15) for personnel 

qualifications/staffing plan, 9.5 (of 10) for project management plan, 10 (of 10) for 

quality assurance plan, 4 (of 5) for transition plan, and 20 (of 20) for past 

performance. Source Selection Decision (SSD) at 2. HHSG’s proposal received a 

technical score of 82.5 points--36.5 for technical approach/general knowledge, 8.5 for 

personnel qualifications/staffing plan, 6 for project management plan, 8 for quality 

assurance plan, 3.5 for transition plan, and 20 for past performance. Id. EAP’s price 

was low and HHSG’s third low. EAP was selected for award based on its highest 

technical score and lowest price. 

DISCUSSION 

HHSG challenges the evaluation of its technical proposal under each evaluation 

factor. In reviewing a protest challenging an agency’s proposal evaluation, it is not 

our role to reevaluate proposals. Rather, we will consider only whether the 

evaluation was reasonable and consistent with the terms of the solicitation and 

applicable statutes and regulations. Anwar Al-Anduols, B-401550, B-401550.3, 

Sept. 22, 2009, 2009 CPD ¶ 188. We have reviewed HHSG’s arguments and find that 

they do not warrant questioning the award. We discuss several of those arguments 

below. 

Technical Approach/General Knowledge 

DHS assigned a weakness to HHSG’s proposal under the technical approach/general 

knowledge factor based on a finding that it did not demonstrate that HHSG had 

experience with EAPA (Employee Assistance Professional Association) standards, 

and did not otherwise indicate that HHSG would comply with them. Best and Final 

Offer Evaluation (BAFO Eval.) at 3. HHSG asserts that this weakness was 

unwarranted because the RFP did not require compliance with EAPA standards. 

This argument is without merit. Contrary to HHSG’s assertion, the statement of 

work (SOW) advised offerors that the agency was seeking a program “grounded in 

EAP Core Technology,” SOW at 9 (which, the agency explains, refers to program

standards set by the EAPA, Lead Technical Evaluator Statement at 4), and the 

solicitation expressly provided that the agency would evaluate, among other things, 

“Demonstrated experience . . . consistent with EAPA standards for assessment. . . .” 

RFP at 48. Given these RFP provisions, since HHSG’s proposal did not demonstrate 

 

(...continued) 

proposals in accordance with the criteria on page 48 of the RFP, and make award on 

a best value basis. RFP at 40. 

Page 2 B-402139.2 
experience with EAPA standards, or otherwise indicate that HHSG would comply 

with them, the evaluation was reasonable.2

 

Personnel Qualifications/Staffing Plan 

The personnel qualifications/staffing plan factor encompassed consideration of, 

among other things, whether proposed key personnel, including a project manager, 

met or exceeded specified requirements. RFP at 49. HHSG’s proposal was assigned 

a weakness under this factor based on the agency’s finding that the project manager 

would be involved in clinical activities but did not have a clinical license. BAFO 

Eval. at 3. 

HHSG maintains that this weakness was unwarranted because the RFP did not 

require the proposed project manager to have a clinical license. The protester 

further asserts that, in any case, its proposed project manager in fact will not have 

any clinical responsibilities. 

While conceding that the solicitation did not require the project manager to have a 

clinical license, the agency reports that it assigned the weakness based on the 

following statement in HHSG’s FPR: 

[The project manager] will review, on a monthly basis, all clinician case 

management and billing forms, including clinical consultations, trauma 

response, formal referrals, and training. This review will be based on a 

peer review matrix that will include various types of information 

related to clinical services performed by the Affiliate Counselor. . . . 

FPR at 47. The agency concluded from this statement that the project manager 

would be involved in clinical oversight and clinical quality control activities, and that 

he would need a clinical license to be qualified to perform these activities; his lack of 

a license therefore was considered a weakness. Supplemental Affidavit at 2. 

HHSG does not disagree that the project manager will have some role in managing 

the clinical operations. It argues, however, that nothing in its proposal suggests that 

the project manager would be involved in the daily operations of the clinic, so as to 

require a clinical license, and notes that the agency has not identified any benefits 

that would derive from a license. 

 

2

 The protester asserts that its proposal did demonstrate compliance with EAPA 

standards. However, HHSG’s proposal addressed the matter with one limited 

reference to staffing levels, FPR at 65, and the proposal did not otherwise 

demonstrate that HHSG had experience complying with EAPA standards. 

Page 3 B-402139.2 
HHSG has not shown that the evaluation was unreasonable. While it may be that the 

project manager would not have daily involvement with clinical matters, the quoted 

language from the proposal clearly shows that he is intended to have involvement in 

clinical activities, in the form of reviewing “all clinician case management and billing 

forms, . . . clinical consultations, trauma response, formal referrals, and training.” 

FPR at 47. The agency determined that this description indicated involvement in 

clinical activities at a level that would require a license, and the protester has not 

established some clear delineation between the proposed activities and those 

performed by a clinical director, or those that otherwise would require a license. 

There certainly is nothing in the language of the proposal that would preclude the 

agency’s finding that the identified activities are clinical in nature, and HHSG has not 

otherwise shown that this conclusion was unwarranted. We conclude that there is 

no basis to question the evaluation in this area. 

Transition Plan 

The agency assigned HHSG’s proposal 3.5 of the 5 possible points under the 

transition plan factor on the basis that the proposal did not fully demonstrate the 

steps needed for smooth transition. HHSG asserts that it was unreasonable to 

downgrade its proposal for failing to provide a more detailed discussion of the 

transition steps because the solicitation did not require a detailed transition plan 

until after award. In response, the agency explains that it assigned the proposal 

fewer than the maximum points under this factor because it only minimally 

addressed the RFP’s transition plan requirements; in the agency’s view, while the 

proposal provided a good discussion of what was required of the agency during 

transition, it did not provide similar information describing HHSG’s transition 

responsibilities. Technical Evaluation Report at 9. The agency states that, in any 

case, it did not downgrade the proposal; it simply assigned it a fully acceptable 

average rating. Lead Technical Evaluator Statement at 9. 

The evaluation in this area was reasonable. The protester is correct that the RFP did 

not require the submission of a detailed transition plan until after award. However, 

the RFP did require offerors to 

[d]escribe the strategy and approach to full implementation and 

assumption of full responsibilities for all requirements contained in the 

solicitation requirements. This assessment will include an evaluation 

of the sufficiency of the offeror’s mobilization, training, and orientation 

of the work force. 

RFP at 47. Thus, while a detailed transition plan was not required until after award, 

offerors were required to address their strategy and approach for performing during 

the transition period. Since HHSG’s proposal only minimally addressed these 

requirements, and did not discuss HHSG’s responsibilities during the transition 

period, there was nothing unreasonable in the agency’s assigning HHSG’s proposal a 

Page 4 B-402139.2 
fully acceptable rating under the transition plan factor. In this regard, there is 

nothing unreasonable in an agency’s assigning a proposal less than the maximum 

rating where it meets, but does not exceed, solicitation requirements. See MINACT, 

Inc., B-400951, Mar. 27, 2009, 2009 CPD ¶ 76 at 6. 

Project Management Plan 

HHSG challenges the evaluation of its proposal under the management plan factor, 

where it received 6 of the 10 possible points. However, even if we agreed with HHSG 

that its proposal should have received the full 10 available points,3

 its proposal 

would remain only third-ranked technically, with 86.5 points versus the awar

95.5 points, and its price would remain third low. SSD at 2. Thus, HHSG was not 

prejudiced by any improper evaluation in this area. 

dee’s 

Evans Sec. Solutions, Inc., 

B-311035, Mar. 19, 2008, 2008 CPD ¶ 58 at 2. 

Evaluation of EAC’s Proposal 

HHSG asserts that the agency unreasonably evaluated EAC’s proposal under the 

technical approach and past performance factors, and failed to evaluate the realism 

of its price. 

The award of a contract under a federal procurement may be challenged only by an 

interested party; that is, an actual or prospective offeror whose direct economic 

interest would be affected by the award of or failure to award a contract. Bid Protest 

Regulations, 4 C.F.R. § 21.0(a) (2009). Where, as here, there is an intervening offeror 

that would be in line for award if the protester’s challenge to the award were 

sustained, we consider the protester’s interest to be too remote to qualify it as an 

interested party. Evans Sec. Solutions, Inc., supra. The record shows that, of the 

four proposals received and evaluated, HHSG’s was ranked third for the combined 

technical and past performance factors and third as to price. SSD at 2. Another 

offeror’s proposal was ranked second both technically and as to price. Id. This 

being the case, that offeror, not HHSG, would be next in line for award if this aspect 

of HHSG’s protest were sustained. Accordingly, HHSG is not an interested party to 

challenge the award to EAP. 

Untimely Arguments 

In its March 8 comments on the agency report, HHSG argues for the first time that 

DHS failed to hold meaningful discussions regarding its technical proposal, and that 

 

3

 It is unlikely that HHSG’s proposal would have received the maximum score, since 

HHSG does not even challenge all of the weaknesses the agency assigned under this 

factor. 

Page 5 B-402139.2 
Page 6 B-402139.2 

the scores assigned its proposal under the technical evaluation factors were 

unreasonable due to inconsistencies in the scoring by different evaluators. 

Under our Regulations, a protest based on other than an apparent solicitation 

impropriety must be filed within 10 calendar days after the protester knows or 

should have known the basis of protest. 4 C.F.R. § 21.2(a)(2). Where, as here, a 

protester raises supplemental protest grounds, each new ground must independently 

satisfy the timeliness requirements. QualMed, Inc., B-257184.2, Jan. 27, 1995, 

95-1 CPD ¶ 94 at 12-13. The arguments raised in HHSG’s comments are based on 

documents HHSG received from the agency no later than February 23. Since HHSG 

did not raise these arguments until March 8, more than 10 days later, they are 

untimely and will not be considered. HHSG’s comments also include arguments 

challenging the evaluation of its proposal on additional specific grounds--for 

example, it asserts that the agency unreasonably concluded that two of its proposed 

counselors were not qualified. These arguments, too, are untimely. While HHSG 

raised several specific challenges to the evaluation of its proposal in its original 

protest, these new specific challenges were not raised. As noted above, specific 

alleged evaluation defects each must independently satisfy our timeliness rules, 

QualMed, Inc., supra; a staggered presentation of examples of alleged defects is not 

permitted by those rules. FR Countermeasures, Inc., B-295375, Feb. 10, 2005, 

2005 CPD ¶ 52 at 9. 

The protest is denied. 

Lynn H. Gibson 

Acting General Counsel