B-170750(2), FEB 22, 1971

B-170750(2): Feb 22, 1971

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GAO FINDS THAT WHILE A NUMERICAL SCORING SYSTEM WAS USED IN THE EVALUATION. OFFERORS WERE NOT INFORMED OF THE MAJOR FACTORS TO BE CONSIDERED AND THE BROAD SCHEME OF SCORING TO BE EMPLOYED. THE TECHNICAL EVALUATORS SHOULD NOT HAVE HAD ACCESS TO PRICE PROPOSALS DURING THEIR REVIEW OF THE TECHNICAL ASPECTS OF THE PROPOSAL. AS PRESCRIBED BY SECTION 1-3.805-1 OF THE FEDERAL PROCUREMENT REGULATIONS WAS NOT FOLLOWED. SECRETARY: HEREWITH IS A COPY OF OUR DECISION OF TODAY TO COMPUTER AND LOGISTICS TECHNOLOGY CORPORATION (CALTECH) DENYING ITS PROTEST AGAINST THE AWARD OF A CONTRACT TO SDA CORPORATION UNDER REQUEST FOR PROPOSALS (RFP) NO. 281. THE PROTEST WAS THE SUBJECT OF A REPORT (REFERENCE 48-30) DATED OCTOBER 21.

B-170750(2), FEB 22, 1971

BID PROTEST - EVALUATION PROCEDURES DECISION CONCERNING DEFICIENCIES IN PROCUREMENT PROCEDURES INCIDENT TO THE EVALUATION OF PROPOSALS FOR PROCUREMENT OF DATA CONVERSION SERVICES FOR THE NATIONAL DRIVER REGISTRATION SERVICE AND AWARD OF A CONTRACT ISSUED BY THE FEDERAL HIGHWAY ADMINISTRATION TO SDA CORPORATION. GAO FINDS THAT WHILE A NUMERICAL SCORING SYSTEM WAS USED IN THE EVALUATION, OFFERORS WERE NOT INFORMED OF THE MAJOR FACTORS TO BE CONSIDERED AND THE BROAD SCHEME OF SCORING TO BE EMPLOYED; THE TECHNICAL EVALUATORS SHOULD NOT HAVE HAD ACCESS TO PRICE PROPOSALS DURING THEIR REVIEW OF THE TECHNICAL ASPECTS OF THE PROPOSAL. THE REQUIREMENT TO CONDUCT DISCUSSIONS WITH ALL OFFERORS WITHIN A COMPETITIVE RANGE, AS PRESCRIBED BY SECTION 1-3.805-1 OF THE FEDERAL PROCUREMENT REGULATIONS WAS NOT FOLLOWED. APPROPRIATE ACTION SHOULD BE TAKEN TO PREVENT THE RECURRENCE OF THESE EVENTS IN THE FUTURE.

TO MR. SECRETARY:

HEREWITH IS A COPY OF OUR DECISION OF TODAY TO COMPUTER AND LOGISTICS TECHNOLOGY CORPORATION (CALTECH) DENYING ITS PROTEST AGAINST THE AWARD OF A CONTRACT TO SDA CORPORATION UNDER REQUEST FOR PROPOSALS (RFP) NO. 281, ISSUED BY THE FEDERAL HIGHWAY ADMINISTRATION ON BEHALF OF THE NATIONAL HIGHWAY SAFETY BUREAU. THE PROTEST WAS THE SUBJECT OF A REPORT (REFERENCE 48-30) DATED OCTOBER 21, 1970, FROM THE CONTRACTING OFFICER.

WE ARE INFORMALLY ADVISED THAT THE CONTRACTING OFFICER WHO SUBMITTED THE REPORT DID NOT BECOME INVOLVED IN THIS PROCUREMENT UNTIL AFTER THE EVALUATION OF PROPOSALS HAD BEEN COMPLETED. WHEN HE DID BECOME INVOLVED, THE CONTRACTING OFFICER, IN HIS CAPACITY AS CHIEF, CONTRACTS AND PROCUREMENT DIVISION, DIRECTED A MEMORANDUM DATED JULY 2, 1970, TO THE ACTING ASSOCIATE DIRECTOR FOR RESEARCH AND DEVELOPMENT, IN WHICH HE SET FORTH SEVERAL AREAS OF CONCERN WITH RESPECT TO THE PROCEDURES USED IN THE EVALUATION OF PROPOSALS.

SPECIFICALLY, HE NOTED THAT SDA CORPORATION HAD RECEIVED THE HIGHEST RATING FROM ALL THE EVALUATORS BECAUSE OF ITS PAST AND PRESENT PERFORMANCE UNDER THE THEN CURRENT CONTRACT FOR THE SAME SERVICES. THE CONTRACTING OFFICER INTIMATED THAT THIS FACTOR IS NOT APPROPRIATE FOR CONSIDERATION DURING THE TECHNICAL EVALUATION; RATHER, IT WOULD SEEM TO RELATE TO A PROSPECTIVE CONTRACTOR'S RESPONSIBILITY WHICH ORDINARILY IS DETERMINED AFTER TECHNICAL EVALUATION. SECONDLY, HE NOTES THAT NO "ZONE OF CONSIDERATION" WAS EVER ESTABLISHED AND THAT IF ALL TECHNICAL EVALUATION SCORES HAD BEEN NORMALIZED AGAINST THE HIGHEST, ALL PROPOSALS CONCEIVABLY WOULD HAVE BEEN WITHIN A COMPETITIVE RANGE. HE THEN NOTES THAT EACH OFFEROR'S PRICE PROPOSAL HAD BEEN MADE AVAILABLE TO THE TECHNICAL EVALUATORS PRIOR TO THE COMPLETION OF THE EVALUATION AND THAT THIS INFORMATION HAD AN IMPACT ON THEIR EVALUATION, JUDGING FROM THE COMMENTS APPEARING ON THEIR RESPECTIVE EVALUATION SHEETS. FINALLY, THE CONTRACTING OFFICER NOTES THAT POSSIBLE STARTUP COSTS HAD BEEN CONSIDERED TO SOME EXTENT BY AN EVALUATOR EVEN THOUGH THE RFP WAS SILENT IN THIS RESPECT.

AFTER REVIEWING THE RECORD, WE BELIEVE THE CONTRACTING OFFICER'S OBSERVATIONS OF THE EVALUATION PROCESS ARE WORTHY OF FURTHER COMMENT. APPEARS THAT, IN EVALUATING THE VARIOUS PROPOSALS, CRITERIA OTHER THAN THOSE SET FORTH IN THE RFP WEIGHED HEAVILY IN FAVOR OF SDA CORPORATION. IT ALSO APPEARS THAT A NUMERICAL SCORING SYSTEM WAS USED IN THE EVALUATION OF PROPOSALS BUT THERE WAS NOTHING IN THE RFP WHICH INFORMED OFFERORS OF "THE BROAD SCHEME OF SCORING TO BE EMPLOYED" OR WHICH GAVE "REASONABLY DEFINITE INFORMATION AS TO THE DEGREE OF IMPORTANCE TO BE ACCORDED TO PARTICULAR FACTORS IN RELATION TO EACH OTHER." AS A MATTER OF SOUND PROCUREMENT POLICY, WE BELIEVE OFFERORS SHOULD BE GIVEN THE FOREGOING INFORMATION. 49 COMP. GEN. 229, 230-231 (1969). IN THAT DECISION WE SAID:

" *** AS TO THE EVALUATION PROCESS, WE HAVE SEVERAL TIMES STATED THAT WHEN A POINT EVALUATION FORMULA IS TO BE USED, SOUND PROCUREMENT POLICY DICTATES THAT OFFERORS SHOULD BE INFORMED AS TO THE EVALUATION FACTORS AND THE RELATIVE WEIGHT OR IMPORTANCE TO BE ATTACHED TO EACH FACTOR. SEE B- 166213(2), JULY 18, 1969; B-166052(2), MAY 20, 1969; 44 COMP. GEN. 493 (1965); 47 ID. 252 (1967); ID. 336 (1967).

" *** WHILE WE HAVE NEVER HELD, AND DO NOT NOW INTEND TO DO SO, THAT ANY MATHEMATICAL FORMULA IS REQUIRED TO BE USED IN THE EVALUATION PROCESS, WE BELIEVE THAT WHEN IT IS INTENDED THAT NUMERICAL RATINGS WILL BE EMPLOYED OFFERORS SHOULD BE INFORMED OF AT LEAST THE MAJOR FACTORS TO BE CONSIDERED AND THE BROAD SCHEME OF SCORING TO BE EMPLOYED. *** "

MOREOVER, WE DO NOT BELIEVE THAT THE TECHNICAL EVALUATORS SHOULD HAVE HAD ACCESS TO PRICE PROPOSALS DURING THEIR REVIEW OF THE TECHNICAL ASPECTS OF THE PROPOSALS. THE POSSIBLE EFFECT IN PROVIDING PRICING INFORMATION DURING THE TECHNICAL EVALUATION PROCESS WAS COMMENTED UPON BY THE CONTRACTING OFFICER IN HIS MEMORANDUM AS FOLLOWS: "I BELIEVE THAT PRICES IN THE HANDS OF THE MOST OBJECTIVE EVALUATORS MAY CREATE UNJUST BIAS."

SECTION 1-3.805-1 OF THE FEDERAL PROCUREMENT REGULATIONS REQUIRES DISCUSSIONS WITH ALL OFFERORS WITHIN A COMPETITIVE RANGE UNLESS AWARD IS MADE ON THE BASIS OF INITIAL PROPOSALS WITHOUT DISCUSSIONS. THERE IS NOTHING IN THE RECORD BEFORE US, HOWEVER, WHICH INDICATES THAT A COMPETITIVE RANGE WAS EVER ESTABLISHED. IN THE ABSENCE OF A COMPETITIVE RANGE DETERMINATION, WE MAY REASONABLY CONCLUDE FROM THE EVALUATION RECORD THAT MOST, IF NOT ALL, OF THE PROPOSALS WERE TECHNICALLY ACCEPTABLE AND, AS SUCH, SHOULD HAVE BEEN AFFORDED EQUAL NEGOTIATION OPPORTUNITY. IN ANY EVENT, IF THE OTHER PROPOSALS MAY, IN RETROSPECT, BE CONSIDERED AS TECHNICALLY ACCEPTABLE, NO BASIS THEN EXISTED TO JUSTIFY AN AWARD ON AN INITIAL PROPOSAL BASIS TO SDA CORPORATION WITHOUT COMPETITIVE NEGOTIATION SINCE IT DID NOT OFFER THE LOWEST PRICED PROPOSAL.

THESE MATTERS ARE BEING BROUGHT TO YOUR ATTENTION SO THAT APPROPRIATE ACTION MAY BE TAKEN TO PREVENT THEIR REOCCURRENCE IN THE FUTURE. IN THIS CONNECTION, WE ARE INFORMALLY ADVISED THAT THE CONTRACTING OFFICER HAS TAKEN ACTION WITH RESPECT TO SOME OF THE DEFICIENCIES DISCUSSED ABOVE.