YORK Building Services, Inc.
B-296948.2,B-296948.3,B-296948.4, Dec 1, 2005
YORK Building Services, Inc., a small business, protests the award of a contract by the United States Department of Agriculture (USDA) under request for proposals (RFP) No. RFP-OPPM-05-R-70 for janitorial services at the Agriculture South Building, the Jamie L. Whitten Building, and the Cotton Annex building, and for recycling services only at the Sydney R. Yates Building, all located in Washington, DC. YORK objects that the evaluation of proposals was inconsistent with the RFP.
We sustain the protest.
B-296948.2; B-296948.3; B-296948.4, YORK Building Services, Inc., November 3, 2005
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.
Protest is sustained where source selection official failed to document rationale for source selection consistent with differential weighting of technical evaluation factors and emphasis on technical superiority as required by solicitation.
YORK Building Services, Inc., a small business, protests the award of a contract by the United States Department of Agriculture (USDA) under request for proposals (RFP) No. RFP-OPPM-05-R-70 for janitorial services at the
The USDA issued the RFP as a small business set-aside on
USDA received 25 proposals, of which it found 23 technically unacceptable; the proposals of YORK and Obsi1, Inc. were the only two deemed technically acceptable. The contracting officer, who served as the source selection official (SSO), included only these two proposals in the competitive range. She conducted discussions with YORK and Obsi1, after which they submitted final proposal revisions. Contracting Officer's (CO) Statement at 1. The SSO noted the results of the evaluation in her source selection decision as follows:
Final Proposal Revisions (based on a 12-month period):
The final proposal revisions, including technical clarifications were timely received May 17. The Evaluation Panel reconvened and conducted follow up evaluations between
Overall Evaluated Total
Company Prior Rating Revised Rating Base Price +Options
a. Obsi1 81 88.0 $3,321,595.37 $16,662,584.10
Agency Report (AR), Tab D, Source Selection Decision, at 2.
The SSO ultimately concluded that the proposals were technically equal and made award to Obsi1 on the basis of its lower price. After a debriefing,
Currently the USDA Headquarters Complex is undergoing major renovations. Approximately 118,500 square feet of space will be under construction during each phase of renovation that should last throughout the entire duration of this contract. Therefore, when submitting offers do not include an amount for the 118,500 square feet of space that is expected to be out of service during the base and option years of this contract.
RFP amend. 1.
As a result, while an offeror could take the square footage deduction into account when calculating its fixed price, as
The agency's actions in this respect were consistent with the price evaluation scheme disclosed in the RFP. RFP at 8.
An agency's obligation to conduct an evaluation consistent with the evaluation scheme set forth in the RFP includes the importance or weighting of the factors. 41 U.S.C. sections 253a(b)(1)(B), 253b(a) (2000); Federal Acquisition Regulation sections 15.204'5(c), 15.304(d), 15.305(a); Dismas Charities, Inc., B-292091,
Although the SSO did discuss each offeror's past performance based on her own review, her consideration of the two most significant factors in the technical evaluation did not go beyond concluding that the YORK and Obsi1 proposals met solicitation requirements and were technically acceptable. With regard to Obsi1's proposal, the SSO stated that
Obsi1, Inc. clarified all technical concerns and submitted final proposal revisions that are inclusive of work statement requirements. Obsi1 proposal score remains slightly above
AR, Tab D, Source Selection Decision, at 3.
York Building Services, Inc. too has responded satisfactorily to the panel concerns and demonstrates its capacity to perform required services and its proposal is substantially equal to Obsi1.
In explaining her selection decision, the SSO states that her determination that both Obsi1, Inc. and York Building Services, Inc. reflect comparable technical superiority was based upon [her] review of the technical proposals and from the Technical Evaluation Panel's report.
Significantly, to the extent that the SSO relied on the technical panel's report, the final technical report is conclusory and suggests an effort to confirm minimal acceptability, rather than to evaluate proposals on a comparative basis, giving the relative weights required by the RFP. The final technical panel report is one page and two lines in length, most of which consists of a summary of the procurement. After noting that these offerors . . . demonstrated a thorough understanding of the Solicitation and at least a minimally acceptable level of experience, and an ability to provide janitorial service, the entire evaluation for each offeror merely noted acceptability and the total score:
Obsi1, Inc. average score -- 88
Overall the Panel found Obsi1 Inc.'s proposal overall acceptable. Obsi addressed all the clarifications to the proposal that were requested. Proposal addressed Environmental Products well overall and provided the list of products intended to be used as required by the PWS. Recycling Plan was clarified and found acceptable. Offeror clarified how they would address service calls.
York Bldg. Services, Inc. average score 87.5
Overall the Panel found York Building Service, Inc.'s proposal overall acceptable.
AR, Tab D, Final Panel Evaluation Report, at 1-2.
Thus, the record reflects that both the evaluation panel and the SSO evaluated final proposal revisions merely to verify their acceptability, rather than to assess relative quality or to evaluate whether either proposal was superior to the other under the evaluation factors and weightings required by the RFP.
The agency essentially argues that
In making these arguments, the agency has attempted to supply in its agency report new rationales, based on a hypothetically correct evaluation, for which there is no support in the contemporaneous record. Our Office will accord little or no weight to such arguments, which have been crafted in the heat of litigation. KEI Pearson, Inc., B'294226.3, B'294226.4, Jan. 10, 2005, 2005 CPD para. 12 at 8 n.13; Boeing Sikorsky Aircraft Support, B'277263.2, B'277263.3, Sept. 29, 1997, 97-2 CPD para. 91 at 15. Although
We conclude that, on this record,
It is not clear from the current record whether the evaluation scheme in the RFP, which emphasizes technical merit over price, reflects the USDA's needs. Therefore, we recommend first that the USDA review the RFP to determine whether its evaluation scheme meets its needs. If not, we recommend that the USDA amend the RFP accordingly and reopen the competition. If the RFP accurately reflects the USDA's needs, we recommend that the USDA reevaluate the proposals consistent with the evaluation factors and the weighting scheme stated in the RFP, and adequately document the reevaluation. After performing its reevaluation, the USDA should make a new source selection. Upon the conclusion of this process, the USDA should either confirm the award to Obsi1 and provide a debriefing to
The protest is sustained.
Anthony H. Gamboa
 The RFP was amended to change the scope of services to be provided at the Cotton Annex building to recycling services only. RFP amend. 1.
 A second round of discussions directed only to an issue involving the pricing of a line item to be used in the event of changes to the square footage was held on May 31. AR, Tab D, Negotiation Memorandum, at 4.
 While acknowledging that an agency is not ordinarily required to conduct a price realism analysis where, as here, the solicitation seeks fixed prices, YORK nevertheless argues that the RFP required the agency to conduct a price realism analysis, because the RFP stated that [t]he Government will evaluate price/cost of all offers included in the technical competitive range. Second Supplemental Protest at 22. The agency did evaluate the prices of both offerors in the competitive range, and found them reasonable. AR, Tab D, Negotiation Memorandum, at 4; AR, Tab D, Source Selection Decision, at 5. We agree with the agency, however, that the cited language did not require it to conduct a price realism analysis, nor would one have been required even if the agency had concluded that the price offered by Obsi1 was below cost.
 In its initial proposal,
 To the extent that there was an apparent conflict in the RFP between the base period term and the price calculation method, the conflict was patent. Rather than changing the pricing schedule in its proposal,
 As a general rule, our Office will recommend reimbursement of costs on all issues pursued, not merely those on which the protester prevailed. Department of the Army--Modification of Remedy, B'292768.5,