The opinion of the court was delivered by: Judge Pellegrini
BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.
Language Line Services, Inc. (Language Line) appeals from a decision of the Deputy Secretary of the Department of General Services (DGS) denying its bid protest regarding the award of the contract for RFP 34400000537 for Non-English Interpretation, Translation & Authentication Language Services. Finding no error in DGS' decision, we affirm.
On February 1, 2008, DGS issued a Request for Proposals (RFP) to procure statewide interpretation, translation, and language authentication services for Commonwealth executive agencies. The RFP listed the following criteria for selection in order of importance: technical; cost; disadvantaged business participation (DB); enterprise zone small business participation; and domestic workforce utilization. Prior to opening the proposals, the Bureau of Procurement (BOP) established the relative importance of the major evaluation criteria as follows: 50% for the technical submittal, 30% for the cost submittal, and 20% for the DB submittal.*fn1
The RFP was divided into four separate lots*fn2 and offerors were permitted to submit proposals on one or more lots. BOP received six proposals for Lot 1 -- over-the-phone interpretation services, including proposals from Language Line and Language Services Associates (LSA).*fn3 The contract evaluation committee scored the technical proposals, the Bureau of Minority and Women Business Opportunities (BMWBO) scored the disadvantaged business submissions, and BOP then scored the cost portion and combined the offerors' subscores to determine their preliminary overall scores. All of the proposals were deemed to be responsive.
Language Line's proposal tied for first place in the cost category and tied for second in the technical proficiency category, scoring higher than LSA in both areas. However, Language Line's proposal did not include a DB submittal, one of the major categories listed in the RFP, and it received no points in this area. LSA's proposal did include a DB submittal, indicating that it employed 87 full and part-time staff members and that the 4,000 interpreters it utilized were independent contractors rather than employees. Because it employed no more than 100 employees, LSA qualified as a small disadvantaged business*fn4 and received 170 points for its DB submittal. LSA obtained the second highest overall score at 832.01 points and Language Line was fifth at 708.3 points.
BOP then chose to proceed to a "best and final offer" (BAFO) phase of the evaluation process. Section 513(f) of the Procurement Code, 62 Pa. C.S. §513(f), specifically allows DGS to engage in BAFO discussions with responsible offerors and provides as follows:
As provided in the request for proposals, discussions and negotiations may be conducted with responsible offerors for the purpose of clarification and of obtaining best and final offers. Responsible offers shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals.
Offerors were on notice of DGS' intention to enter into such discussions as Section I-20 of the RFP stated, "The Issuing Office will limit any discussions to responsible Offerors (those that have submitted responsive proposals and possess the capability to fully perform the contract requirements in all respects and the integrity and reliability to assure good faith performance) whose proposals the Issuing Office has determined to be reasonably susceptible of being selected for award." (Reproduced Record at 10a).
Because Quantum, Geneva Worldwide and LSA all scored within 100 points of each other, BOP determined they were the offerors whose proposals were "reasonably susceptible of being selected" for the award and only these three offerors were allowed to proceed to the BAFO phase of the evaluation process. DGS sent all three offerors a letter inviting them to submit BAFO's and to improve their technical, cost and DB scores, offering assistance in identifying certified suppliers who may be used in their DB proposals. All three offerors submitted BAFO's and their overall scores were as follows: LSA -- 929.7; Geneva Worldwide -- 909.01; and Quantum -- 901.5. As the highest overall scorer in the BAFO phase, LSA was selected for contract negotiations on Lot 1, and DGS awarded the project to LSA in June 2009.
Language Line filed a timely bid protest claiming LSA's classification of its interpreters as independent contractors rather than employees was improper and, as a result, it employed more than 100 employees making it ineligible to receive credit as a small disadvantaged business in the scoring of the RFP. Language Line also contended that the award was invalid because LSA's proposal did not meet several mandatory RFP requirements. The contract with LSA was stayed pending resolution of Language Line's protest.*fn5
On August 14, 2009, DGS Deputy Secretary Anne Rung (Deputy Secretary) issued a determination denying Language Line's bid protest. She found that LSA did not exercise the degree of control over its interpreters that was required for them to be considered employees, citing the following in support of this finding:
a) Interpreters offer a service that Language Services Associates buys as the need occurs, and interpreters are free to ...