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World Wide Movers, Inc., [World Wide] protested the notice of intent to award a contract for archival services to AAA Moving & Storage, Inc [AAA]. The procurement officer denied the protest and World Wide appealed. The appeal raises five issues: (1) Whether there is an adequate basis in the proposals for (a) the ratings by the evaluation committee and (b) the decision by the Department of Education to award the contract to AAA Moving & Storage, Inc. [AAA]; (2) (a) whether the record adequately indicates the basis for the evaluators' ratings and (b) whether the evaluators referred to improper criteria; (3) whether AAA's proposal was responsive; (4) whether AAA's proposal adequately demonstrated an ability to perform; and (5) whether the evaluators were biased. A. No Material Facts are at Issue. The record for review consists of the following docwnents: (1) RFP No. 98-0033; (2) the proposals of World Wide and AAA; (3) letter from John Brower, dated June 16, 1997 with attachment; (4) Proposal Evaluation Committee Meeting minutes, dated June 24, 1997, with attached scoring summary, individual evaluation sheets and "Note to the Procurement file"; (5) Notice of Intent to Award dated June 24, 1997, with attachments; (6) contract Award dated July 23, 1997; (7) Division of General Services & Supply lease report, undated; (8) RFP 98-0033 response list, undated. Whether the proposals adequately support the evaluations and the contract award is a question regarding the sufficiency of the evidence. It raises a question of law. Whether the record as a whole adequately indicates the basis of the ratings is similarly a question of law. To the extent that the record was sufficient in those respects, then there is no factual basis for World Wide's assertions that the evaluators "must have" considered improper criteria or been biased. Therefore, unless the record is otherwise insufficient, or on its face shows that unlisted criteria were improperly considered, there is no material fact at issue with regard to those issues. B. Adequate Basis for Evaluations. The Request for Proposals (RFP] assigned numerical weights to five factors: Contract Cost (55%); Alaska Proposer's Preference (10%); Introduction and Statement of Understanding (5%); Management Plan (I 5%); and Experience and Qualifications (I 5%); World Wide argues that the proposals as submitted did not support the evaluation ratings with respect to the latter three factors. The evaluators were provided rating sheets containing a list of questions relevant to the scoring of the proposal on each of those three broad factors. World Wide argues that most of those questions were objective and could be answered yes or no. [App. at 9] It was improper, World Wide contends, to rely on the "subjective" judgment of the evaluators in assigning ratings, rather than adhering to a strictly "objective" process of answering each specific question listed on the evaluation sheets and assigning a score based on the cumulative response totals. [App. at 9-10] World Wide's position that ratings must reflect a tallying of responses to the questions listed on the evaluation sheets is incorrect. When competitive proposals are solicited, the ratings process is intended to be somewhat subjective. See, 2 AAC 12.260(b). The rating given depends on the evaluator's independent judgment as to the adequacy -of the proposal in regard to each broad factor in light of the specific listed criteria. See, 2 AAC 12.260(h). If, as World Wide contends, the rating process amounted to nothing more than a tallying of scores based on objective criteria, then there would be no need for evaluation conunittees. Competitive proposals would be awarded according to objective criteria, just as awards on competitive bids are awarded according to the ob ective criterion of price. In this case, points were awarded according to the broad factors listed in the RFP. Nothing in this particular proposal, or in the competitive proposal process generally, suggests that each of the specific criteria identified by questions listed on the ratings sheet was to be rated and awarded points separately or cumulatively. Cf, King v. Alaska State Housing Authority, 512 P.2d 887, 894 (Alaska 1973) (King 1) (agency's failure to assign specific grade to earthquake risk did not deprive evaluation of proposals of reasonable basis). The questions simply reflect the criteria that the raters were to consider in reaching an inherently subjective judgment regarding the relative merits of the proposals with respect to each broad factor. See, e.g., Waste Management, Inc., v. Wisconsin Solid Waste Recycling Authority, 267 N.W.2d 659, 668 (Wis. 1978). The evaluators' award of points was properly based on their independent judgment of the proposals as a whole with respect to each factor, in light of the listed criteria. While the evaluation of competitive proposals is an inherently subjective process, it remains true that the proposals must provide objective support for the subjective judgments set forth in the numerical ratings. [1] To utilize World Wide's point by point analysis to determine the adequacy of the objective basis for those judgments, however, would be contrary to the premise that the process itself is inherently, and appropriately, subjective. Furthermore, World Wide's approach would not eliminate disputes over which criteria are "objective" and which are "subjective", nor would it eliminate disputes over the how the proposals should be scored. [2] Rather than engaging in a point by point analysis, therefore, it is appropriate to assess the evidence in its entirety to determine whether "the objective facts... reasonably support evaluations". King v. Alaska State Housing Authority, supra, 512P.2d at 894. 1. Introduction and Statement of Understanding. The evaluators rated AAA at an average score of 4.5 on this factor, for a total of 22.5 points and World Wide at an average score of 4.3 for a total of 21.5 points. Based on the questions listed on the evaluation sheets, the primary focus of this factor was on on the building. Ten of the fourteen listed questions concern the adequacy of the building. The remaining questions deal primarily with the demonstrated understanding of the project. The facility offered by World Wide appears substantially superior to the facility offered by AAA. In fact, World Wide's building currently houses the records and was specifically constructed for the purpose of storage of these very records less than eight years ago. By contrast, the AAA facility is a standard warehouse building, shared with another tenant, with inadequate space for future growth and located in the vicinity of hazardous materials. Any deficiency in World Wide's proposal with respect to the other aspect of this factor (Statement of Understanding) is more than made up for by its superior facility. I conclude that the objective facts do not provide substantial support for the evaluations in regard to this factor. 2. Management Plan.
The evaluators rated AAA at an average score of 13.7 on this factor, for a total of 68.5 points and World Wide at an average score of 11.2 for a total of 56 points. Nine of the 17 questions listed under this factor refer to the services offered, primarily with regard to the computerized tracking system. Since both proposers offered the same system, and indicated similar experience with it, the objective facts support a substantially similar rating for both parties in this regard. Five of the 17 questions dealt with the managerial aspects of the proposals, such as accountability, clear lines of authority, and having an on site Juneau manager. In this regard., AAA's proposal states that Earl Rude, the Anchorage based manager of AAA's existing records storage division, AAA Archive, would come to Juneau to train a local facility manager, "personally oversee the relocation of the records, the conversion of the records to the O'Neil system, staff training and the development of all local procedures and policies." The Juneau facility manager would thereafter operate the facility directly under Mr. Rude's supervision from Anchorage. The Juneau manager of the AAA's overall operations in Juneau, according to the proposal, would not be directly responsible for the management of the facility. This is clearly indicated on the organizational chart and in the narrative. The World Wide proposal, by contrast, does not clearly delineate the role of management during the establishment of the facility. World Wide's Pacific Division manager, James Scholz is given a Hawaii contact telephone number, [Resp. at Tab A] although according to his resume he has a local address and telephone number, and it is unclear from the proposal whether he would be located in Juneau during the setup phase or thereafter. According to the narrative, "The Records Manager reports directly to the Pacific Area Manager of World Wide Movers, Inc., who will set policies and outline the specific procedures for the facility." [Resp. at Tab B] However, its organizational chart indicates that Mr. Scholz's management responsibilities include all of World Wide's operations, not only its records storage operations, and the lines of authority do not clearly indicate that the Juneau records facility manager will report directly and primarily to Mr. Scholz. Taken as a whole, the objective evidence supports a higher rating for AAA in this area, based on an organizational structure including a separate records storage division, the clear commitment to on site supervision during start up, and clear lines of authority thereafter. Three of the questions deal with the disaster plan. On that score, although World Wide's proposal included much more detail, the comments of several evaluators indicate that AAA's plan was superior. [3] The objective facts support a higher rating, for AAA with regard to disaster planning. Taken as a whole, the objective evidence supports the ratings awarded on this factor. 3. Experience & Qualifications.
The evaluators rated AAA at an average score of 13.8 on this factor, for a total of 69 points and rated World Wide at an average score of 10.6 points, for a total of 53 points. The questions on this factor refer to the experience and qualifications of both staff and the firm. Both proposals indicate that the firm's experience and qualifications are essentially identical with those of the manager of the firm's records storage operations, Earl Rude for AAA and James Scholz for World Wide. AAA's proposal details Mr. Rude's prior experience with regard to similar projects, including establishing records storage facilities for a major corporation and a major hospital with extensive and highly sensitive records storage needs. The proposal clearly states that the proposer has an existing stand alone records storage center and manages a substantial number of records (9,000 "containers", [Resp. Exp. & Qual.] compared with the state's immediate need for storage of approximately 34,000 storage boxes). It includes letters of recommendation from two major clients. Alaska Regional Hospital's reference indicates that AAA developed an off site records storage system to meet its needs, which included significant "confidentiality and legal requirements for record retention." The narrative states that AAA developed the records management systems for both clients. [Resp., Mgt. Procedures & Experience] The World Wide proposal provides no detail on the nature of the experience of Mr. Scholz or of the firm in general with regard to records storage. Although a Hawaii records storage facility is shown on the organizational chart, no local facility manager is in place at that site and nothing indicates the experience level of the firm at that facility. It is unclear whether World Wide presently operates a stand alone records storage facility in either Hawaii or in Juneau. Although the proposal clearly indicates that World Wide presently is providing records storage services in Juneau, the proposal does not establish how World Wide differentiates its services in this regard from its warehousing and other storage services generally. Although the proposal states that Mr. Scholz has nine years' experience in this area, it provides no indication of where the experience was acquired or its nature. In particular, Mr. Scholz's resume does not contain any indication of prior experience in this area, except to say that he "started record storage division": the resume does not indicate when this division began operation, the volume of business transacted in that area, the nature of the clients served and of the services provided or the location and nature of a separate records storage facility. On the other hand, Mr. Scholz does have university level classes in professional records management, is pursuing professional certification in that area, and has been provided professional training in the O'Neil system. A letter of reference from a local credit union office establishes that the firm has provided highly satisfactory records storage services for that business "for over nine years", but provides no indication of the nature of those services. What is objectively different in the two proposals is the level of detail regarding past experience and qualifications with regard to the key personnel, Mr. Rude and Mr. Scholz, and, by extension, of the firms. The objective facts support a higher rating for AAA with regard to this factor. 4. Contract Award. The ultimate question is whether the objective facts, taken as a whole, support the award of the contract. As indicated above, the objective facts support a higher rating for World Wide with regard to the Introduction and Statement of Understanding, and higher ratings for AAA Aith regard to the factors Management Plan and Experience and Qualifications. Inasmuch as the latter factors were collectively weighted six times more than the Introduction and Statement of Understanding, I conclude that taken as a whole, the objective facts provide adequate support for the award of the contract to AAA. C. Basis for the Evaluations. World Wide argues that the basis for the evaluations is not adequately set forth in the record because the minutes of the procurement committee meeting merely "Report... the purely ministerial act of tallying the committee members scores." [App. at 6] It argues that "we cannot see how the evaluators arrived at their scores based on the answers to the questions posed on the evaluation sheets." [App. at 7] It objects that "The evaluators were not instructed by the Contract Officer to go through the 42 questions one by one and answer them in accordance with the RFP." [App. at I I] World Wide's argument in this regard is a repeat of its position that the evaluations must be reviewed on the basis of a point by point analysis of each listed question. I have previously rejected that view. The appropriate test is whether the written record discloses the basis for the evaluators' ratings and adequately demonstrates that they considered all of the important factors. See generally, King v. Alaska State Housing Authority, 633 P.2d 256, 263 (Alaska 1981) (King III); State, Department of Education v. Nickerson, 711 P.2d 1165, 1169 (Alaska 1985); Lower Kuskokwim School District v. Foundation Services, Inc., 909 P.2d 1383, 1388-89 (Alaska 1996). In this case, the written record clearly indicates how the ratings were derived. Each evaluator filled out an evaluation sheet with comments. Their comments clearly indicate the basis of their ratings. For example, with respect to the Introduction and Statement of Understanding, several of the evaluators specifically noted that it appeared that World Wide was claiming that it was currently providing records storage services on behalf of the State, whereas in fact it is only the landlord, leading them to rate World Wide lower in this area. Although World Wide vigorously disputed this characterization of its proposal, its objection goes to whether the objective evidence supports the ratings, not to whether the basis for the ratings is adequately set forth. [4] As set forth above, I have independently reviewed the proposals and have determined that the objective evidence provides substantial support for the award of the contract to AAA. Any misunderstanding by the evaluators of the nature of the representation that World Wide intended in this regard was the result of World Wide's own choice of words, for which World Wide must bear the consequences. The clarity of presentation in the proposals inevitably affects the evaluators' ratings. [5] More significantly, the comment sheets clearly demonstrate the basis for the ratings with respect to management and experience, which were the deciding factors in this case. With regard to these factors, three of the five evaluators rated AAA only slightly ahead of World Wide. However, significant difference in ratings by two of the evaluators with respect to these factors essentially determined the overall ratings. [6] The evaluation sheets for those two evaluators on these factors provide ample support for the procurement officer's observation in the protest report that basis for the award was that "AAA ... gave a stronger proposal in the areas of management and ualifications and experience." [7] D. AAA's Bid is Responsive. World Wide argues that AAA's bid should have been rejected as nonresponsive pursua,it to 2 AAC 12.830, which prohibits "[a]ltemate bids or proposals". It objects that AAA referred to multiple facilities, including 5346 Shaune Drive, 2260 Industrial Boulevard, and to four alternatives for future expansion. [App. at 2-3] Section 5.01, page 22 of the RFP states in part:
AAA's bid specifically and unequivocally offered the Shaune Drive facility for the immediate storage needs of the state, as required in the specification. It offered the Industrial Boulevard facility for initial growth requirements and nonconforming container storage. Alternatives for additional future growth were discussed, but not specifically offered. Section 5.01 did not require that specific buildings or space for all foreseeable future growth over the life of the contract be offered in the response. It merely required evidence that such space would be available. AAA's proposal was in the altei-natin,e only with respect to future growth, not with respect to the specific buildings offered. In order to establish an abuse of discretion in deeming a bid responsive as to a particular specification, the protestor must show that the bid varied materially from the specification in question. McBirney & Associates v. State, 753, P.2d 1132, 1136 (Alaska 1988). AAA's proposal was in substantial conformity with the specification set forth in Section 5.01. The procurement officer did not abuse his discretion in deeming the proposal of AAA responsive in this regard. E. AAA Adequately Demonstrated an Abilily to Perform. World Wide alleged in its protest that the Shaune Drive building is not in substantial compliance with the specifications and that it would need alterations in order to be brought into compliance which should have been discussed in the proposal, pursuant to Section 5.01 at page 23. [Pro. at 3] In its appeal it repeats this argument without offering any evidentiary support. [App. at 4] However, the specific defects alleged by World Wide, even if they exist, do not establish that the procurement officer abused his discretion in deeming the proposal responsive. [8] In any event, AAA's proposal specifically represented that both the Shaune Drive and Industrial Boulevard facilities comply in all respects with the RFP. The procurement officer did not abuse his discretion in accepting that certification at face value. Should the buildings fall to be in full compliance at the time of performance, there may be grounds for a claim of breach of contract, but the state was entitled to accept at face value A-AA's bid certification. [9] Similarly, the fact that AAA did not present evidence of present ownership of a building or of a present lease or option does not mean that its proposal must be rejected; it merely means that in the event of nonperformance, AAA would be exposed to liability to the state. Cf, Peninsula Correctional Health Care v. Departnient of Corrections 924 P.2d 425, 429 (Alaska 1996). F. There is no Evidence of Bias. World Wide argued that because the evidence did not support the ratings, in its view, the ratings must have been the result of bias. It presented no evidence suggesting that any of the evaluators was biased against World Wide or in favor of AAA. [10] Since I have concluded that the evidence adequately supports the ratings, it follows that the allegation of bias is without merit.
World Wide's appeal rests in substance on a contention that the evaluators awarded AAA too many points for its building, [11] and awarded World Wide too few points in the areas of management and experience. However, the objective evidence provides ample support for the conclusion that AAA has greater and more relevant experience in the area of archival services and records storage. Any misunderstanding of World Wide's proposal by the evaluators in that regard is attributable to its own presentation, not to any misconduct, negligence or unfairness on the part of the evaluators. The appeal process is not intended to provide an opportunity to clarify proposals as submitted and it would be inappropriate to do so. I conclude that the award of the contract to AAA should be affirmed.
Some of the questions listed as "objective" in World Wide's analysis could be categorized as 44 subjective", e.g., Management Q14 (this question is directed to management problem,;, which are relatively "subjective"). World Wide assumes that each question had equal weight, when in fact that the weight assigned was subject to independent judgment. Also, the answer to a seemingly "objective" question may be a matter of judgment and opinion, e.g., Introduction and Statement of Understanding Q4 (AAA identified multiple long-term alternative possibilities for future growth; however, the Section 5.01 of the RFP requires only that the proposer identify a specific building for the immediate needs of the department); Q8 (the AAA building is represented to have 24 hour intrusion alarm to a "central" location, possibly meaning "otT-site"); QIO (World Wide"s floor plan shows no more detail with respect to viewing, staging and destruction of records than does AAA's); Experience & Qualifications Ql (both proposals indicate that the Juneau archives center will be managed by a staff person to be retained and that the proposer's existing staff personnel with relevant experience will not be the on site manager); Q2 (James Scholz is pursuing, but does not yet have, certification); Q6 (neither proposal asserts the proposer has a, "training program in place"; both assert their current staff will train the Juneau records center manager). One significant difference, noted by evaluators #I, #3 and #5 is that World Wide's plan did not indicate a role for ARMS, the state archival personnel, and AAA's did. In addition, evaluator #2 noted that it did not appear that World Wide's local manager would have a role in disaster response, which was, deemed inappropriate. World Wide argues that it "plainly stated that it currently manages the State Records Center as landlord. Nowhere does [World Wide] claim that it provides complete records center services to the State ofA@ka." [Comment at 6-7] Section A of World Wide's proposal, which is the portion specifically addressing this factor, states: "[World Wide's] Pacific Division Manager is James Scholz who has, for the past 9 years, managed the State of Alaska Record Center and the Alyeska Central School warehouse on Channel Drive in Juneau." A subsequent portion of the proposal, Section E, addressing another factor, states: "[World Wide] currently manages the existing State Records Center and the State Alyeska Central School Warehouse as the landlord." Since it is apparent on the face of the proposal that the state had been managing the records center itself, it was obvious to all of the evaluators that Mr. Scholz and World Wide had not been managing the center. World Wide contends that the consideration of inappropriate criteria is established by its point by point analysis of the answers to the questions listed on the evaluation sheets. [App. at 8, I 0- I I] Inasmuch as there is no specific evidence that improper criteria were considered, and I have rejected World Wide's point-by-point analysis, this appeal point is without merit. Evaluators 1, 2, and 4 awarded World Wide an average rating of 12.8 points, for a total of 77 points on these factors and awarded AAA an average rating of 14. 1, for a total of 84.5 points. On the same two factors, evaluators 3 and 5 awarded World Wide an average rating of 8.0 points, for a total of 32 points, and awarded AAA an average of 13.2 points, for a total of 53 points. The ratings by these two evaluators on these two factors account for 21 of the total overall differential of 25.5 points. 7 Comments on World Wide's proposal regarding Management include these: "Local manager has no records ctr management experience. They are not currently operating a records center & would have to hire outside consultant to assist w/ setup .... Alternate contact lives in Hawaii - communications & response problems-...Weak staff training on operations/security - could be long leaming curve especially on new automated system - No one in house currently" (#3); "Location of Records Mgr unclear - seems to indicate a local manager (position vacant) but references qualifications of their Pacific Division, Mgr .... Employee security & records handling training not clear - security seems to focus on computer system & building systems." (#5). Comments on AAA's proposal regarding the same factor include these: "Presently operating a similar type records center - current mgr has experience specifically in Archival systems - Good transition oversite [sic] & training - Willing to relocate personnel as necessary to set up & train. will utilize & train in house staff - Better safeguards & controls" (#3); "Very detailed plan for relocating cartons from both Salmon Creek & Willoughby buildings (#5). Comments on World Wide's proposal regarding Experience and Qualifications include: "No actual archivist experience or certifications presently - Good warehouser but no actual archive/records center operational experience. We would be the test case[.] References were more for warehousing & storage of freight/fumiture etc - weak overall" (93); "Difficult to evaluate staff experience as all positions (mgr & records handlers) are currently vacant ... Experience as a full-se@-vice records center also difficult to evaluate" (#5). With regard to AAA: "Current mgr is operating a system ,n Anchorage presently - will relocate & setup & train staff while still maintaining mgmt function ... More depth in specific archive type work areas ... Good solid records/archive references." (#3); "Shows concern with providing security at all levels....Has a proposed manager with good experience in all phases of records center operations & management.""(#5).
The specific problems alleged by World Wide were: (1) widows opening into stack areas [Pro. at 3]; (2) flammable materials possibly stored in adjacent tenant's space [id.]; (3) it 'appears' that no security system is in place.[id.] Of these matters, only the windows could possibly be deemed to warrant building alterations. However, the procurement officer could reasonably conclude that the failure to provide specific information regarding such alterations is not material. An intentional material misrepresentation in a proposal is a serious violation of law that is wholly abhorrent to the procurement process. it can subject the proposer to criminal penalties, forfeiture of all claims under the procurement and voiding of the contract awarded. See, AS 36.30.687; 2 AAC 12.690.
World Wide speculated that the fact that AAA's owner was formerly the chair of the state Democratic Party may have effected the evaluation. There is no evidence that any of the evaluators had any knowledge of the owner's former position, or that any of them was even a member of that political party, let alone that any of the matter had any effect on their decision. It was apparent on the face of the solicitation that the evaluation criteria would substantially eliminate any competitive advantage held by World Wide by virtue of its status as the landlord of the existing building, since only 5% of the points would be awarded based on criteria addressing the building. If World Wide believed that the buildings should have been given more consideration in the rating@ process, it was incumbent upon it to raise this matter in advance of the due date for proposals. Indeed, World Wide could have sought to maintain the status quo by requesting that the bid for archival services be separated from the bid for storage space. In fact, if legal and practicable, and if all the parties agreed, substitution even at this late date of World Wide building for the Shaune Drive building might be in the best interests of AAA, World Wide and the State, if substitution would reduce AAA's costs, provide World Wide with a tenant, avoid the necessity for a move, and eliminate potential problems posed by use of the Shaune Drive building.
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