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B-204550, SEP 13, 1982

B-204550 Sep 13, 1982
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RATHER THAN EXPERIENCE IN PERFORMING ACTUAL WORK CALLED FOR BY CONTRACT TO BE AWARDED IS NOT IMPROPER WHERE EVALUATION CRITERION IS IDENTIFIED AS "QUALIFICATION AND EXPERIENCE. ASSERTION THAT AGENCY WAS INCONSISTENT IN ITS EVALUATION OF PROPOSALS IN TWO PROCUREMENTS FOR THE SAME SERVICES BECAUSE IN ONE CASE TECHNICAL FACTORS ALLEGEDLY WERE EMPHASIZED WHILE COST WAS PARAMOUNT IN THE OTHER IS WITHOUT MERIT WHERE RECORD SHOWS THAT IN BOTH CASES TECHNICAL FACTORS WERE WEIGHTED SUBSTANTIALLY HIGHER THAN COST. IN ONE CASE THERE WAS A TECHNICALLY SUPERIOR PROPOSAL WHICH WARRANTED AWARD AT A HIGHER PRICE WHILE IN THE OTHER CASE THERE WAS NO MEANINGFUL TECHNICAL DISPARITY SO THAT COST BECAME CONTROLLING.

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B-204550, SEP 13, 1982

DIGEST: 1. AGENCY EVALUATION OF ALL ASPECTS OF EXPERIENCE BEARING ON WORK TO BE PERFORMED UNDER A CONTRACT, RATHER THAN EXPERIENCE IN PERFORMING ACTUAL WORK CALLED FOR BY CONTRACT TO BE AWARDED IS NOT IMPROPER WHERE EVALUATION CRITERION IS IDENTIFIED AS "QUALIFICATION AND EXPERIENCE," SINCE AGENCY PROPERLY MAY CONSIDER ANYTHING REASONABLY AND LOGICALLY ENCOMPASSED BY THAT CRITERION. 2. ASSERTION THAT AGENCY WAS INCONSISTENT IN ITS EVALUATION OF PROPOSALS IN TWO PROCUREMENTS FOR THE SAME SERVICES BECAUSE IN ONE CASE TECHNICAL FACTORS ALLEGEDLY WERE EMPHASIZED WHILE COST WAS PARAMOUNT IN THE OTHER IS WITHOUT MERIT WHERE RECORD SHOWS THAT IN BOTH CASES TECHNICAL FACTORS WERE WEIGHTED SUBSTANTIALLY HIGHER THAN COST. IN ONE CASE THERE WAS A TECHNICALLY SUPERIOR PROPOSAL WHICH WARRANTED AWARD AT A HIGHER PRICE WHILE IN THE OTHER CASE THERE WAS NO MEANINGFUL TECHNICAL DISPARITY SO THAT COST BECAME CONTROLLING.

WESTERN ECOLOGICAL SERVICES COMPANY:

WESTERN ECOLOGICAL SERVICES COMPANY PROTESTS AN AWARD TO NORTH STATE RESOURCES UNDER REQUEST FOR PROPOSALS NO. R5-NCZ-81-18 ISSUED BY THE U. S. FOREST SERVICE TO PROCURE AN ORDER II SOIL SURVEY IN THE STANISLAUS NATIONAL FOREST. WESTERN CONTENDS THAT THE FOREST SERVICE DID NOT FOLLOW THE EVALUATION CRITERIA STATED IN THE SOLICITATION AND THAT THE FOREST SERVICE'S SCORING OF PROPOSALS WAS INCONSISTENT WITH THE SCORING IN A PRIOR PROCUREMENT. WE DENY THE PROTEST.

BACKGROUND

THE FOREST SERVICE ISSUED THIS SOLICITATION AS A SMALL BUSINESS SET ASIDE TO OBTAIN AN ORDER II SOIL RESOURCES INVENTORY OF CERTAIN AREAS WITHIN THE STANISLAUS NATIONAL FOREST. THIS INVENTORY INVOLVES FIELD SAMPLING OF SOILS, ANALYSIS AND CLASSIFICATION OF SOILS, AND THE PREPARATION OF MAPS SHOWING THE LOCATION OF THE VARIOUS SOIL TYPES WITH ACCOMPANYING REPORTS. THE FOREST SERVICE RECEIVED SIX PROPOSALS, FIVE OF WHICH WERE RESPONSIVE AND UNDERWENT TECHNICAL EVALUATION. THE FOREST SERVICE EVALUATORS RANKED WESTERN'S PROPOSAL HIGHEST TECHNICALLY WITH AN AVERAGE SCORE OF 89, WHILE NORTH STATE'S PROPOSAL, WITH A SCORE OF 86, WAS RANKED SECOND HIGHEST. HOWEVER, WHEN COST WAS EVALUATED AND SCORED IN ACCORDANCE WITH THE WEIGHTING FORMULA CONTAINED IN THE SOLICITATION, NORTH STATE'S $32,966 PROPOSAL RANKED HIGHEST OVERALL, WITH A SCORE OF 111, WHILE WESTERN'S $39,231 PROPOSAL RANKED SECOND HIGHEST OVERALL, WITH A SCORE OF 110.

THE FOREST SERVICE AWARDED THE CONTRACT TO NORTH STATE ON THE BASIS OF ITS HIGHEST OVERALL RANKING. SHORTLY THEREAFTER, WESTERN PROTESTED TO THE FOREST SERVICE AND, WHEN THAT PROTEST WAS DENIED, ENTERED A TIMELY PROTEST HERE.

PROTESTER'S POSITION

INITIALLY, WESTERN'S PROTEST FOCUSED UPON TWO CONCERNS. FIRST, WESTERN MAINTAINED THAT THE FOREST SERVICE FAILED TO PLACE EMPHASIS UPON EXPERIENCE IN ORDER II SOIL SURVEYS TO THE EXTENT REQUIRED BY THE EVALUATION CRITERIA. SECOND, WESTERN CONTENDED THAT THE FOREST SERVICE HAS BEEN INCONSISTENT IN SCORING ORDER II SOIL SURVEY PROPOSALS AND CITED AN EARLIER PROCUREMENT WHERE WESTERN'S LOWER PRICED OFFER LOST OUT TO A COMPETITOR'S HIGHER PRICED OFFER BECAUSE OF THE COMPETITOR'S HIGHER TECHNICAL SCORE, WHILE THE OPPOSITE HAPPENED HERE.

AFTER RECEIPT OF THE AGENCY REPORT ON THE PROTEST, WESTERN SUPPLEMENTED ITS PROTEST WITH MORE SPECIFIC ARGUMENTS RELATING TO THE EXPERIENCE OF NORTH STATE AND ITS INDIVIDUAL EMPLOYEES, AS COMPARED TO WESTERN AND ITS INDIVIDUAL EMPLOYEES. IN WESTERN'S VIEW, IT HAD PROPOSED THE MORE QUALIFIED TEAM, WITH MORE EXPERIENCE IN ORDER II SOIL SURVEYS. WESTERN FURTHER CONTENDS THAT EVEN IF OTHER TYPES OF SOIL SURVEYS ARE VIEWED AS RELEVANT, IT IS STILL MORE EXPERIENCED THAN NORTH STATE BY A LARGE MARGIN. FOR THIS REASON, WESTERN CONTENDS THAT THE FOREST SERVICE ACTED UNREASONABLY IN SCORING NORTH STATE'S TECHNICAL PROPOSAL AS ESSENTIALLY EQUAL TO WESTERN'S.

ANALYSIS

IT IS NOT THE FUNCTION OF THIS OFFICE TO EVALUATE PROPOSALS. JOANELL LABORATORIES, INC., 56 COMP.GEN. 291 (1977), 77-1 CPD 51. MOREOVER, IN CONSIDERING PROTESTS OF A PROCURING AGENCY'S EVALUATION OF TECHNICAL PROPOSALS, WE RECOGNIZE THAT THE DETERMINATION OF THE RELATIVE DESIRABILITY OF PROPOSALS IS PRIMARILY THE RESPONSIBILITY OF THE PROCURING AGENCY, IS LARGELY SUBJECTIVE, AND IS NOT SUBJECT TO OBJECTION BY OUR OFFICE UNLESS SHOWN TO BE UNREASONABLE, ARBITRARY OR VIOLATIVE OF LAW. SEE MOSHMAN ASSOCIATES, INC., B-192008, JANUARY 16, 1979, 79-1 CPD 23. FURTHER RECOGNIZE THAT NUMERICAL POINT SCORES, WHILE USEFUL AS GUIDES FOR INTELLIGENT DECISION-MAKING, ARE NORMALLY NOT CONTROLLING BECAUSE THEY THEMSELVES REFLECT THE SUBJECTIVE AND SOMETIMES DISPARATE JUDGMENTS OF THE EVALUATORS. SEE BUNKER RAMO CORP., 56 COMP.GEN. 712 (1977), 77-1 CPD 427, AFFIRMED B-187645, AUGUST 17, 1977, 77-2 CPD 124.

HERE, THE SOLICITATION PROVIDED THAT IN PROPOSAL EVALUATION TECHNICAL EXCELLENCE WAS TO BE PARAMOUNT TO COST, WITH EVALUATION FACTORS AND THEIR WEIGHTS IDENTIFIED AS FOLLOWS:

QUALIFICATION AND EXPERIENCE 45

METHODOLOGY AND SCHEDULE 40

RELATED SPECIALIZED EXPERIENCE 15

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

IN ESSENCE, THE PROTESTER'S CONCERN IS WITH THE RELATIVE ASSESSMENT MADE OF THE TWO PROPOSALS UNDER THE FIRST EVALUATION FACTOR. WESTERN BELIEVES IT IS ENTITLED TO A SIGNIFICANTLY HIGHER SCORE THAN NORTH STATE BECAUSE IT BELIEVES IT HAS MORE EXTENSIVE EXPERIENCE, PARTICULARLY IN CONNECTION WITH ORDER II INVENTORIES. THE AGENCY, ON THE OTHER HAND, EXPLAINS THAT ALL KINDS OF RELATED EXPERIENCE BEARING ON THE ABILITY TO DO THE REQUIRED WORK WAS TAKEN INTO ACCOUNT, AND THAT IT CONSIDERED NOT ONLY YEARS OF EXPERIENCE BUT ALSO HOW MUCH WAS DONE (I.E., NUMBER OF ACRES MAPPED) DURING THE TIME EXPERIENCE WAS BEING ACQUIRED.

WE FIND NOTHING IMPROPER WITH THIS EVALUATION. THE SOLICITATION DID NOT SPECIFY ANY PARTICULAR TYPE OR LENGTH OF EXPERIENCE THAT WOULD BE EVALUATED - IT MERELY IDENTIFIED "QUALIFICATION AND EXPERIENCE" AS THE MOST IMPORTANT EVALUATION FACTOR. UNDER THAT BROAD CRITERION, THE AGENCY PROPERLY COULD CONSIDER ANYTHING REASONABLY AND LOGICALLY RELATED TO OR ENCOMPASSED BY QUALIFICATION AND EXPERIENCE. SEE THE OHIO STATE UNIVERSITY RESEARCH FOUNDATION, B-190530, JANUARY 11, 1979, 79-1 CPD 15. THUS, IT WAS NOT REQUIRED TO EMPHASIZE YEARS OF EXPERIENCE OR ORDER II INVENTORY EXPERIENCE TO THE EXCLUSION OF OTHER EXPERIENCE WHICH IS RATIONALLY RELATED TO THE WORK TO BE PERFORMED UNDER THE CONTRACT.

WE HAVE EXAMINED THE COMPETING PROPOSALS, AND WE BELIEVE THE EVALUATORS RATIONALLY COULD HAVE APPRAISED THEM AS THEY DID. WHILE WESTERN OBVIOUSLY DISAGREES WITH THAT ASSESSMENT, THAT DOES NOT RENDER THE EVALUATION UNREASONABLE. COMMONWEALTH RESEARCH GROUP, INC., B-202536.2, OCTOBER 6, 1981, 81-2 CPD 281. SINCE WE FIND A RATIONAL BASIS FOR THE EVALUATION, AND SINCE THE EVALUATION WAS CONSISTENT WITH THE ESTABLISHED CRITERIA, THE PROTEST MUST FAIL ON THIS GROUND.

WITH RESPECT TO THE ALLEGED INCONSISTENCY BETWEEN THIS EVALUATION AND THE EVALUATION OF PROPOSALS IN A PRIOR PROCUREMENT, WE POINT OUT THAT THE FOREST SERVICE DID NOT INTEND THE EVALUATION IN THE TWO PROCUREMENTS TO BE EXACTLY THE SAME. IN THE EARLIER PROCUREMENT, COST WAS WEIGHTED AT 10 PERCENT OF THE TOTAL AVAILABLE EVALUATION POINTS (SEE WESTERN ECOLOGICAL SERVICES COMPANY, B-201097, APRIL 30, 1981, 81-1 CPD 333), WHILE IN THIS CASE COST WAS ASSIGNED 20 PERCENT OF THE TOTAL POINTS AVAILABLE. THUS, IT SHOULD HAVE BEEN EVIDENT TO WESTERN THAT COST WOULD COUNT SOMEWHAT MORE IN THIS PROCUREMENT THAN IT DID IN THE PRIOR ONE; IF WESTERN VIEWED THIS EVALUATION APPROACH AS IMPROPER, IT SHOULD HAVE PROTESTED PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS. 4 C.F.R. SEC. 21.2(B)(1) (1982).

MOREOVER, IT IS NOT READILY APPARENT TO US THAT THE TWO EVALUATIONS WERE MATERIALLY INCONSISTENT. IN BOTH CASES TECHNICAL CONSIDERATIONS WERE WEIGHTED SIGNIFICANTLY GREATER THAN COST; IN BOTH CASES THE AGENCY UTILIZED POINT SCORING TO EVALUATE BOTH THE TECHNICAL AND COST ASPECTS OF PROPOSALS; AND IN BOTH CASES THE AGENCY CHOSE TO MAKE AWARD (IT WAS NOT REQUIRED TO - SEE TELECOMMUNICATIONS MANAGEMENT CORP., 57 COMP.GEN. 251 (1978), 78-1 CPD 80) ON THE BASIS OF THE HIGHEST OVERALL POINT SCORE ATTAINED. IN THE EARLIER PROCUREMENT, THE DISPARITY IN TECHNICAL SCORE BETWEEN WESTERN AND THE ULTIMATE AWARDEE WAS SUCH THAT WESTERN'S HIGHER SCORE FOR ITS LOWER PRICE WAS INSUFFICIENT TO OVERCOME THE OTHER FIRM'S TECHNICAL ADVANTAGE. IN THIS PROCUREMENT, WESTERN RECEIVED A HIGHER TECHNICAL SCORE THAN NORTH STATE BUT THE DIFFERENCE IN SCORES WAS SIGNIFICANTLY LESS THAN IN THE PRIOR PROCUREMENT, SO THAT NORTH STATE'S LOWER PRICE ENABLED IT TO ATTAIN A SLIGHTLY HIGHER OVERALL SCORE. ALTHOUGH WESTERN BELIEVES COST WAS PARAMOUNT HERE WHILE TECHNICAL CONSIDERATIONS, PRIMARILY EXPERIENCE, WERE CONTROLLING IN THE PRIOR PROCUREMENT, THE FACT IS THAT TECHNICAL MATTERS WERE MOST IMPORTANT IN BOTH PROCUREMENTS; COST ENDED UP BEING CONTROLLING IN THIS CASE SIMPLY BECAUSE THE EVALUATORS DID NOT FIND A SIGNIFICANT TECHNICAL DISPARITY BETWEEN THE TWO PROPOSALS. AS WE HAVE OFTEN POINTED OUT, PRICE OR COST WILL BECOME CONTROLLING WHEN TECHNICAL EVALUATIONS REVEAL LITTLE DISPARITY BETWEEN COMPETING PROPOSALS OR WHEN SUCH PROPOSALS ARE VIEWED AS ESSENTIALLY EQUAL. SEE TELECOMMUNICATIONS MANAGEMENT CORP., SUPRA, AND CASES CITED.

THE PROTEST IS DENIED.

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