B-224017, DEC 8, 1986, 66 COMP.GEN. 121

B-224017: Dec 8, 1986

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WHERE AN OFFEROR'S EXPERIENCE IN A PARTICULAR AGENCY PROGRAM IS THE SINGLE MOST IMPORTANT EVALUATION SUBFACTOR AND IS WORTH MORE THAN FIVE OF THE SIX GENERAL EVALUATION FACTORS. CONTRACTING AGENCY SHOULD HAVE DISCLOSED THE SUBFACTOR IN THE REQUEST FOR PROPOSALS (RFP). EVEN THOUGH THE SUBFACTOR WAS REASONABLY RELATED TO THE GENERAL EXPERIENCE EVALUATION FACTOR LISTED IN THE RFP. PROTESTER IS ENTITLED TO RECOVER PROPOSAL PREPARATION COSTS AND COSTS OF FILING AND PURSUING THE PROTEST WHERE CONTRACTING AGENCY IMPROPERLY INDUCED PROTESTER TO INCUR THE COST OF COMPETING BY FAILING TO DISCLOSE A SIGNIFICANT EVALUATION FACTOR. THE ECONOMIC AND SOCIAL ANALYSIS CALLED FOR BY THE RFP IS ONE PART OF THE CONTRACTING AGENCY'S COPPER RIVER BASIN PLANNING PROGRAM.

B-224017, DEC 8, 1986, 66 COMP.GEN. 121

PROCUREMENT - COMPETITIVE NEGOTIATION - REQUESTS FOR PROPOSALS - EVALUATION CRITERIA - SUBCRITERIA - DISCLOSURE 1. WHERE AN OFFEROR'S EXPERIENCE IN A PARTICULAR AGENCY PROGRAM IS THE SINGLE MOST IMPORTANT EVALUATION SUBFACTOR AND IS WORTH MORE THAN FIVE OF THE SIX GENERAL EVALUATION FACTORS, CONTRACTING AGENCY SHOULD HAVE DISCLOSED THE SUBFACTOR IN THE REQUEST FOR PROPOSALS (RFP), EVEN THOUGH THE SUBFACTOR WAS REASONABLY RELATED TO THE GENERAL EXPERIENCE EVALUATION FACTOR LISTED IN THE RFP. PROCUREMENT - COMPETITIVE NEGOTIATION - OFFERS - PREPARATION COSTS 2. PROTESTER IS ENTITLED TO RECOVER PROPOSAL PREPARATION COSTS AND COSTS OF FILING AND PURSUING THE PROTEST WHERE CONTRACTING AGENCY IMPROPERLY INDUCED PROTESTER TO INCUR THE COST OF COMPETING BY FAILING TO DISCLOSE A SIGNIFICANT EVALUATION FACTOR.

DEVRES, INC.:

DEVRES, INC. PROTESTS THE EXCLUSION OF ITS PROPOSAL FROM THE COMPETITIVE RANGE UNDER REQUEST FOR PROPOSALS (RFP) NO. WNTC-2-86 ISSUED BY THE SOIL CONSERVATION SERVICE (SCS), DEPARTMENT OF AGRICULTURE, FOR A SOCIAL AND ECONOMIC STUDY OF THE COPPER RIVER BASIN IN SOUTHERN ALASKA. DEVRES CONTENDS THAT SCS IMPROPERLY DOWNGRADED ITS PROPOSAL BASED ON AN EVALUATION CRITERION NOT DISCLOSED IN THE RFP. WE SUSTAIN THE PROTEST.

THE ECONOMIC AND SOCIAL ANALYSIS CALLED FOR BY THE RFP IS ONE PART OF THE CONTRACTING AGENCY'S COPPER RIVER BASIN PLANNING PROGRAM, A PROGRAM CARRIED OUT IN COOPERATION WITH THE STATE OF ALASKA IN ORDER TO ASSIST THE STATE'S PLANNING EFFORTS IN THE REGION. SECTION M-2 OF THE RFP LISTED SIX EVALUATION FACTORS TO BE CONSIDERED IN MAKING AWARD; THE FIRST AND MOST IMPORTANT FACTOR IS "EXPERIENCE IN MULTIDISCIPLINARY NATURAL RESOURCE PLANNING INVOLVING COOPERATIVE INTERAGENCY TEAMS." ACCORDING TO SCS, THE PANEL ESTABLISHED TO REVIEW THE PROPOSALS DEVISED A RATING PLAN WHICH ASSIGNED SPECIFIC WEIGHT TO EACH OF THE SIX MAJOR EVALUATION FACTORS AND DIVIDED EACH INTO SUBFACTORS. THE PANEL ASSIGNED 42 PERCENT OF THE TOTAL SCORE TO THE FIRST EVALUATION FACTOR, EXPERIENCE; THE REMAINING FIVE FACTORS WERE GIVEN WEIGHTS RANGING FROM 21 PERCENT TO 6 PERCENT OF THE TOTAL SCORE. THE RATING PLAN LISTED THE FOLLOWING SUBFACTORS, WORTH A TOTAL OF 100 POINTS, AS COMPRISING THE EXPERIENCE FACTOR:

USDA RIVER BASIN EXPERIENCE-- 60 PTS.

FEDERAL INTERAGENCY TEAMS-- 20 PTS.

INTERAGENCY NONFEDERAL-- 10 PTS.

ALASKA COOPERATIVE INTERAGENCY EXP.-- 10 PTS.

PROPOSALS FROM 10 OFFERORS WERE RECEIVED BY THE DUE DATE OF JULY 9, 1986. ON AUGUST 11, THE REVIEW PANEL DECIDED THAT THE TWO OFFERORS WITH THE HIGHEST SCORES (89 AND 92 POINTS) SHOULD BE INCLUDED IN THE COMPETITIVE RANGE. UNDER THE EVALUATION FACTOR FOR EXPERIENCE, BOTH OFFERORS HAD RECEIVED THE FULL 60 POINTS ASSIGNED TO THE MOST IMPORTANT SUBFACTOR, USDA RIVER BASIN EXPERIENCE.

DEVRES WAS NOTIFIED THAT ITS PROPOSAL HAD NOT BEEN INCLUDED IN THE COMPETITIVE RANGE ON AUGUST 14. THE EVALUATION DOCUMENTS SHOW THAT DEVRES RECEIVED A TOTAL OF 62 POINTS; UNDER THE EXPERIENCE FACTOR, DEVRES RECEIVED ONLY 40 OF 100 TOTAL POINTS BECAUSE IT LACKED ANY USDA RIVER BASIN EXPERIENCE. SCS DOES NOT DISPUTE THAT THE SCORE DEVRES RECEIVED UNDER THE EXPERIENCE EVALUATION FACTOR WAS CRITICAL TO THE DECISION TO EXCLUDE ITS PROPOSAL FROM THE COMPETITIVE RANGE.

DEVRES ARGUES THAT EXPERIENCE WITH THE USDA RIVER BASIN PROJECT WAS A SIGNIFICANT EVALUATION SUBFACTOR NOT REASONABLY RELATED TO THE GENERAL EXPERIENCE FACTOR LISTED IN THE RFP, DEVRES CONTENDS, IT WAS IMPROPER FOR SCS TO APPLY IT IN EVALUATING PROPOSALS. SCS DISAGREES, ARGUING THAT SPECIFIC EXPERIENCE WITH ITS RIVER BASIN PROGRAM. WE FIND THAT WHILE SCS REASONABLY COULD DECIDE THAT AN OFFEROR'S EXPERIENCE WITH THE RIVER BASIN PROGRAM WAS OF SIGNIFICANT VALUE, SCS SHOULD HAVE DISCLOSED THAT SUBFACTOR AND ITS IMPORTANCE IN THE RFP.

AS A GENERAL RULE, A CONTRACTING AGENCY NEED NOT SPECIFICALLY IDENTIFY THE SUBFACTORS COMPRISING THE EVALUATION CRITERIA IF THE SUBFACTORS ARE REASONABLY RELATED TO THE STATED CRITERIA. WASHINGTON OCCUPATIONAL HEALTH ASSOCIATES, INC., B-222466, JUNE 19, 1986, 86-1 CPD 567. THUS, FOR EXAMPLE, WHERE AN RFP LISTED GENERAL EXPERIENCE AND PERSONNEL QUALIFICATIONS AS AN EVALUATION CRITERION, THE CONTRACTING AGENCY REASONABLY COULD CONSIDER AN OFFEROR'S EXPERIENCE IN THE SPECIFIC SERVICES CALLED FOR UNDER THE RFP; THE RFP DID NOT HAVE TO LIST SPECIFIC EXPERIENCE AS A SEPARATE EVALUATION FACTOR SINCE IT WAS REASONABLY RELATED TO THE GENERAL EXPERIENCE EVALUATION FACTOR. TECHNICAL SERVICES CORP., 64 COMP.GEN. 245 (1985), 85-1 CPD 152.

SIMILARLY HERE, AN OFFEROR'S EXPERIENCE WITH THE RIVER BASIN PROGRAM IS REASONABLY RELATED TO THE EVALUATION FACTOR IN THE RFP WHICH CALLS FOR "EXPERIENCE IN MULTIDISCIPLINARY NATURAL RESOURCE PLANNING INVOLVING COOPERATIVE INTERAGENCY TEAMS," A GENERIC DESCRIPTION OF THE RIVER BASIN PROGRAM. FURTHER, DEVRES HAS SHOWN NO BASIS ON WHICH TO CHALLENGE THE AGENCY'S POSITION THAT EXPERIENCE IN THE PROGRAM WOULD FACILITATE AN OFFEROR'S PERFORMANCE. IN OUR VIEW, HOWEVER, SCS SHOULD HAVE DISCLOSED ITS PLAN TO EVALUATE THE OFFERORS' SPECIFIC PROGRAM EXPERIENCE BECAUSE OF ITS SIGNIFICANCE IN THE OVERALL EVALUATION.

EXPERIENCE IN THE RIVER BASIN PROGRAM WAS BY FAR THE MOST IMPORTANT SUBFACTOR UNDER THE GENERAL EXPERIENCE FACTOR. SPECIFICALLY, THE PROGRAM EXPERIENCE SUBFACTOR WAS WORTH 60 OF 100 POINTS UNDER THE EXPERIENCE FACTOR, WHICH ITSELF WAS WORTH 42 PERCENT OF THE TOTAL SCORE; AS A RESULT, THE PROGRAM EXPERIENCE SUBFACTOR WAS WORTH APPROXIMATELY 25 PERCENT OF THE TOTAL SCORE. NONE OF THE OTHER SUBFACTORS APPROACHED THE IMPORTANCE OF THE RIVER BASIN SUBFACTOR; IN FACT, OF THE OTHER FIVE GENERAL EVALUATION FACTORS LISTED IN THE RFP, THE NEXT CLOSEST IN WEIGHT TO THE RIVER BASIN EXPERIENCE SUBFACTOR ("KNOWLEDGE AND EXPERIENCE IN CONDUCTING NATURAL RESOURCE ECONOMIC EVALUATIONS") WAS WORTH ONLY 21 PERCENT OF THE TOTAL SCORE. ACCORDINGLY, EXPERIENCE IN THE RIVER BASIN PROGRAM WAS NOT ONLY THE SINGLE MOST IMPORTANT SUBFACTOR, BUT WAS WORTH MORE BY ITSELF THAN FIVE OF THE SIX GENERAL EVALUATION FACTORS.

CONTRACTING AGENCIES ARE REQUIRED BY STATUTE TO INCLUDE IN SOLICITATIONS ALL SIGNIFICANT EVALUATION FACTORS AND THEIR RELATIVE IMPORTANCE. U.S.C. 253A(B)(1) (SUPP. III 1985). FURTHER, THE FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. 15.605(E) (1985), REQUIRES THAT SOLICITATIONS DISCLOSE "ANY SIGNIFICANT SUBFACTORS" TO BE CONSIDERED IN THE AWARD DECISION. HERE, THE RIVER BASIN SUBFACTOR CLEARLY CONSTITUTED A SIGNIFICANT SUBFACTOR WITHIN THE MEANING OF THE FAR IN LIGHT OF ITS RELATIVE WEIGHT IN THE EVALUATION SCHEME.

IN ADDITION, BY PUTTING A SIGNIFICANT PREMIUM OF RIVER BASIN PROGRAM EXPERIENCE, SCS IN EFFECT NARROWED THE FIELD OF COMPETITORS TO THOSE WITH SUCH EXPERIENCE. IN FACT, DEVRES STATES THAT IT WOULD NOT HAVE SUBMITTED A PROPOSAL HAD IT KNOWN THAT PROGRAM EXPERIENCE WAS SO IMPORTANT. ACCORDINGLY, WE FIND THAT SCS WAS REQUIRED UNDER THE FAR TO DISCLOSE IN THE RFP THAT EXPERIENCE IN THE USDA RIVER BASIN PROGRAM WOULD BE THE MOST SIGNIFICANT FACTOR IN THE EVALUATION.

AS RELIEF, DEVRES HAS REQUESTED THAT SCS BE REQUIRED TO EVALUATE THE PROPOSALS WITHOUT CONSIDERING ANY OFFEROR'S EXPERIENCE IN THE RIVER BASIN PROGRAM. THIS IS NOT A APPROPRIATE REMEDY; HOWEVER; DEVRES HAS NOT SHOWN THAT IT WAS UNREASONABLE FOR SCS TO REGARD PROGRAM EXPERIENCE AS VALUABLE, AND SCS IS NOT REQUIRED TO EVALUATE PROPOSALS WITHOUT TAKING INTO ACCOUNT A SUBFACTOR IT REASONABLY REGARDS AS IMPORTANT TO THE AWARD DECISION. RESOLICITATION ALSO IS INAPPROPRIATE SINCE THE PROGRAM EXPERIENCE SUBFACTOR IN EFFECT NARROWS THE FIELD OF COMPETITION AND THERE THUS IS LITTLE REASON TO ANTICIPATE AN INCREASE IN THE NUMBER OF COMPETITORS IF THE SUBFACTOR IS DISCLOSED AND A NEW COMPETITION IS HELD. INSTEAD, WE FIND THAT DEVRES IS ENTITLED TO RECOVER ITS PROPOSAL PREPARATION COSTS AND THE COSTS OF FILING AND PURSUING THE PROTEST SINCE SCS IMPROPERLY INDUCED DEVRES TO INCUR THE COST OF COMPETING BY FAILING TO DISCLOSE THE PROGRAM EXPERIENCE SUBFACTOR. SEE BID PROTEST REGULATIONS, 4 C.F.R. 21.6(D), (E) (1986); TANDEM COMPUTERS, INC., B-221333, APR. 14, 1986, 65 COMP.GEN. 490, 86-1 CPD 362. DEVRES SHOULD SUBMIT ITS CLAIMS FOR SUCH COSTS DIRECTLY TO THE AGENCY. 4 C.F.R. 21.6(F).

THE PROTEST IS SUSTAINED.

Nov 22, 2017

Nov 21, 2017

  • A-P-T Research, Inc.
    We deny the protest in part and dismiss the protest in part.
    B-414825,B-414825.2

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Nov 16, 2017

  • HBI-GF, JV
    We deny the protest.
    B-415036
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    We dismiss the protest because it raises a matter of contract administration over which we do not exercise jurisdiction.
    B-414410.4

Nov 15, 2017

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