B-172261, SEP 13, 1971, 51 COMP GEN 153

B-172261: Sep 13, 1971

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WHERE THE CRITERIA CONTRARY TO PARAGRAPH 3-501(B) OF THE ARMED SERVICES PROCUREMENT REGULATIONS (ASPR) WAS NOT DISCLOSED. WHOSE PRICE WAS NOT THE LOWEST. " WAS NOT THE MOST ADVANTAGEOUS TO THE GOVERNMENT - A REQUIREMENT OF ASPR 3-101. THE TWO MINOR SUBFACTORS SHOULD HAVE BEEN EVALUATED ON A SLIDING SCALE TO ALLOW FOR THE RESPECTIVE CAPABILITIES OF OFFERORS IN A COMPETITIVE RANGE. LOWER SCORED OFFER THAT WOULD MEET THE GOVERNMENT'S NEEDS SHOULD HAVE BEEN SUPPORTED BY A SPECIFIC DETERMINATION OF TECHNICAL SUPERIORITY. CONTRACTS - AWARDS - "GOOD FAITH" EFFECT WHERE THERE IS NO EVIDENCE IN A PROCUREMENT RECORD OF BAD FAITH IN THE AWARD OF A CONTRACT THAT DOES NOT CONTAIN A TERMINATION FOR CONVENIENCE OF THE GOVERNMENT CLAUSE.

B-172261, SEP 13, 1971, 51 COMP GEN 153

CONTRACTS - NEGOTIATION - EVALUATION FACTORS - POINT RATING - PRICE CONSIDERATION UNDER THE POINT RATING CRITERIA - TECHNICAL EFFICACY 40 PERCENT; QUALIFICATIONS 20 PERCENT; REAL COST TO GOVERNMENT 40 PERCENT - ESTABLISHED TO EVALUATE OIL ANALYSIS SERVICES FOR THE NAVY, WHERE THE CRITERIA CONTRARY TO PARAGRAPH 3-501(B) OF THE ARMED SERVICES PROCUREMENT REGULATIONS (ASPR) WAS NOT DISCLOSED, THE AWARD TO THE INCUMBENT CONTRACTOR, WHOSE PRICE WAS NOT THE LOWEST, ON THE BASIS OF A NARROW MARGIN HIGHER SCORE ON THE SUBFACTORS OF "EXTENDED VOYAGES" AND "MSC EXPERIENCE," WAS NOT THE MOST ADVANTAGEOUS TO THE GOVERNMENT - A REQUIREMENT OF ASPR 3-101. SINCE, UNDER ASPR 3-805.1, PRICE MAY NOT BE DISREGARDED, THE TWO MINOR SUBFACTORS SHOULD HAVE BEEN EVALUATED ON A SLIDING SCALE TO ALLOW FOR THE RESPECTIVE CAPABILITIES OF OFFERORS IN A COMPETITIVE RANGE, AND THE ACCEPTANCE OF THE HIGHER PRICED AND HIGHER SCORED OFFER RATHER THAN A LOWER PRICED, LOWER SCORED OFFER THAT WOULD MEET THE GOVERNMENT'S NEEDS SHOULD HAVE BEEN SUPPORTED BY A SPECIFIC DETERMINATION OF TECHNICAL SUPERIORITY. CONTRACTS - AWARDS - "GOOD FAITH" EFFECT WHERE THERE IS NO EVIDENCE IN A PROCUREMENT RECORD OF BAD FAITH IN THE AWARD OF A CONTRACT THAT DOES NOT CONTAIN A TERMINATION FOR CONVENIENCE OF THE GOVERNMENT CLAUSE, IT WOULD NOT BE IN THE INTEREST OF THE GOVERNMENT TO TERMINATE THE CONTRACT. HOWEVER, THE ATTENTION OF THE CONTRACTING AGENCY IS CALLED TO THE DEFICIENCIES IN THE PROCUREMENT WITH THE REQUEST THAT ACTION BE INITIATED TO PRECLUDE RECURRENCE OF SUCH DEFICIENCIES IN FUTURE PROCUREMENTS.

TO SPECTRON, INC., SEPTEMBER 13, 1971:

WE REFER TO YOUR PROTEST, BY LETTER OF DECEMBER 23, 1970, ADDRESSED TO MR. JOHN T. DUNN, OFFICE OF SECRETARY OF DEFENSE, INSTALLATIONS AND LOGISTICS, AGAINST THE AWARD BY THE MILITARY SEALIFT COMMAND (MSC), DEPARTMENT OF THE NAVY, OF CONTRACT N00033 71 D 0004 TO ANALYSTS, INC. (ANALYSTS), FOR THE PERFORMANCE OF OIL ANALYSIS SERVICES FOR THE PERIOD DECEMBER 1, 1970, THROUGH DECEMBER 31, 1972. THE PROCUREMENT SOLICITATION WAS REQUEST FOR QUOTATIONS (RFQ) N00033 71 R 0001, DATED AUGUST 10, 1970.

THE SUBSTANCE OF YOUR PROTEST IS THAT YOU CONSIDER YOURSELF TECHNICALLY SUPERIOR TO ANALYSTS, WHOSE AWARD PRICE WAS HIGHER THAN YOUR PRICE, AND TO FABER SERVICE CORPORATION (FABER), WHO QUOTED THE LOWEST PRICE AND WAS RATED SECOND BY THE MSC EVALUATION COMMITTEE. IN THIS CONNECTION, YOU QUESTION WHETHER ANALYSTS AND FABER WERE EVER CERTIFIED BY THE DEPARTMENT OF DEFENSE EQUIPMENT OIL ANALYSIS PROGRAM ACTIVITY (DOD EOAPA) FOR PERFORMANCE OF THE SERVICES INVOLVED (AS CONTEMPLATED BY DEPARTMENT OF DEFENSE DIRECTIVE 4151.14, DATED MAY 15, 1969, AS AMENDED BY CHANGE NO. 1, DATED SEPTEMBER 14, 1970). IN ADDITION, YOU ASSERT THAT GEOGRAPHIC LOCATION OF LABORATORY FACILITIES WAS MADE AN EVALUATION FACTOR ALTHOUGH THE RFQ DID NOT SO ADVISE OFFERORS.

THE RFQ STATED IN PARAGRAPH 1.2, SECTION 1, OF THE SCHEDULE, THAT THE PURPOSE OF THE USED OIL ANALYSIS IS TO PROVIDE MSC WITH A MEANS OF PREDICTING INCIPIENT FAILURES OF ENGINES (DIESEL, STEAM AND GAS TURBINES) WITH CLOSED LUBE OIL SYSTEMS. IN ADDITION, PROSPECTIVE OFFERORS WERE INFORMED THAT THE CONTRACTOR'S TEST REPORTS SHOULD INCLUDE SPECIFIC RECOMMENDATIONS FOR OVERHAUL, OPERATION AND MAINTENANCE OF EACH INDIVIDUAL UNIT BASED ON DATA OBTAINED FROM THE REQUIRED ANALYSIS; THAT WITH EACH TEST REPORT THERE SHOULD BE PROVIDED A DETERMINATION OF THE INTERNAL WEAR CONDITION OF EACH UNIT; THAT WHEN ABNORMAL OR CRITICAL INTERNAL WEAR IS DETECTED, THE COMPONENTS WEARING EXCESSIVELY SHOULD BE IDENTIFIED IN THE REPORT; AND THAT THE CONTRACTOR IS TO KEEP INDIVIDUAL RECORD CARDS ON THE VARIOUS UNITS IN ORDER THAT THE TRENDS OF EACH UNIT MAY BE WATCHED FOR ANY PERTINENT CHANGES IN DATA FROM SPECTROMETRIC AND PHYSICAL TESTS.

SCHEDULE A OF THE RFQ SPECIFIED THE METHOD AND FREQUENCY OF SAMPLE TESTING AND INCLUDED A LIST OF THE SHIPS TO BE SERVICED UNDER THE CONTRACT; 45 IN THE ATLANTIC AREA, ON WHICH REPORTS ARE TO BE MADE TO MSC, ATLANTIC, BROOKLYN, NEW YORK, AND 85 IN THE PACIFIC AREA, ON WHICH REPORTS ARE TO BE MADE TO MSC, PACIFIC, OAKLAND, CALIFORNIA. THE MINIMUM QUANTITY OF SAMPLES ON WHICH THE SERVICES ARE TO BE ORDERED BY THE GOVERNMENT UNDER THE ENTIRE CONTRACT IS 10 PERCENT OF THE MAXIMUM ESTIMATED QUANTITY SET FORTH IN PARAGRAPH 1.5, SECTION 1, OF THE RFQ, AND IT IS OUR UNDERSTANDING THAT THIS QUOTA HAS ALREADY BEEN FULFILLED.

PARAGRAPH 1.3, SECTION 1, REQUIRES THAT WHEN UNUSUAL WEAR PATTERNS DEVELOP THE CONTRACTOR SHALL PROVIDE TELEPHONIC NOTICE TO THE PERTINENT MSC AREA COMMAND OF THE TEST RESULTS AND SHALL RECOMMEND AN EQUIPMENT TROUBLE CHECK. IN ADDITION, TESTS OF SAMPLES ARE REQUIRED TO BE MADE AND THE RESULTS RECORDED WITHIN 24 HOURS AFTER RECEIPT OF SAMPLES BY THE CONTRACTOR, AND THE CONTRACTOR IS TO RETAIN A RUNNING RECORD OF THE TEST RESULTS AND HAVE A SYSTEM OF QUICK RETRIEVAL OF DATA IN THE EVENT A DETAILED ANALYSIS OF AN ENGINE BECOMES NECESSARY. REPORTS AND ANALYSIS DATA BECOME THE PROPERTY OF THE GOVERNMENT.

PARAGRAPH 1.7, SECTION 1, RELATING TO AWARD AND EVALUATION OF OFFERS, READS AS FOLLOWS:

1.7 AWARD WILL BE MADE TO A RESPONSIBLE FIRM OFFERING TO PERFORM THE SERVICES PRESCRIBED IN SCHEDULE A IN THE MANNER AND UNDER THE TERMS FOUND BY THE CONTRACTING OFFICER TO BE IN THE BEST INTEREST OF THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. EVALUATION CRITERIA WILL CONSIST OF THREE PRINCIPAL FACTORS:

A. TECHNICAL EFFICACY OF THE PROPOSED ANALYSIS SYSTEM.

B. QUALIFICATIONS OF THE OFFEROR'S LABORATORY AND ORGANIZATION, AND CAPACITY TO MONITOR THE SYSTEM IN THE MSC TYPE OPERATION, INCLUDING DEMONSTRATED CAPABILITY TO MAKE SOUND ENGINEERING RECOMMENDATIONS FOR MAINTENANCE AND REPAIR.

C. COST TO THE GOVERNMENT.

PARAGRAPH 1.9, SECTION 1, INFORMED OFFERORS THAT OFFERS SHOULD INCLUDE, AMONG OTHER INFORMATION, A STATEMENT AS TO THE METHOD BY WHICH SAMPLES WILL BE HANDLED FOR BOTH EAST COAST AND WEST COAST AND SPEED OF RESPONSE BY LABORATORY BASED ON UNITED STATES POSTAL SERVICE AS WELL AS A STATEMENT OF THE OFFEROR'S EXPERIENCE IN PERFORMING SIMILAR SERVICES, INCLUDING THE NAMES OF FIRMS TO WHICH SERVICES WERE PROVIDED AND A DESCRIPTION OF THE SERVICES.

ON SEPTEMBER 16, 1970, THE CONTRACTING OFFICER APPOINTED AN AD HOC COMMITTEE TO EVALUATE THE OFFERS RECEIVED IN RESPONSE TO THE RFQ ON THE BASIS OF EVALUATION CRITERIA TO BE ESTABLISHED PRIOR TO EXAMINATION OF OFFERS.

ON SEPTEMBER 17, THE COMMITTEE ISSUED A STATEMENT SETTING FORTH THE EVALUATION CRITERIA AND THE APPLICABLE NUMERICAL WEIGHTS AS FOLLOWS:

FACTOR WEIGHT TOTAL

I. TECHNICAL EFFICACY

A. SYSTEM FOR ANALYSIS 20

B. SERVICE PERSONNEL 5

C. PAPERWORK 10

D. EXTENDED VOYAGES

(FAR EAST SHIPS, ETC.) 5 40

II. QUALIFICATIONS

A. MANAGEMENT PERSONNEL 4

B. LABORATORY (EQUIPMENT

QUALIFICATION AND PERSONNEL) 8 C. ORGANIZATION

2 D. MSC EXPERIENCE

6 20

III. REAL COST TO GOVERNMENT 40

TOTAL SCORE 100

THIS INFORMATION WAS NOT GIVEN TO OFFERORS.

FIVE FIRMS RESPONDED TO THE RFQ BY OCTOBER 9, THE FINAL DATE FOR SUBMISSION OF OFFERS. OF THE SIX OFFERS RECEIVED, ONE EACH FROM ANALYSTS, FABER, AND YOUR FIRM WAS CONSIDERED TO BE WITHIN A COMPETITIVE RANGE, AND NEGOTIATIONS WERE ACCORDINGLY CONDUCTED WITH THESE FIRMS UNTIL OCTOBER 22, 1970, THE DATE SET FOR SUBMISSION OF BEST AND FINAL OFFERS.

IN A DISCUSSION OF OCTOBER 20, 1970, BETWEEN YOUR MR. KINCAID AND A MEMBER OF THE AD HOC EVALUATION PANEL, MR. KINCAID DISCLOSED THAT YOUR SPECTROMETER DID NOT INCLUDE CAPABILITY TO TEST FOR PHOSPHORUS AND BARIUM, AS REQUIRED BY THE RFQ TEST SPECIFICATION (PAGE 2, SCHEDULE A), BUT DECLINED TO HAVE THE EQUIPMENT MODIFIED FOR SUCH PURPOSE UNLESS YOU WERE ASSURED THAT YOU WOULD RECEIVE THE MSC CONTRACT. MR. KINCAID IS ALSO REPORTED AS HAVING DECLINED TO MAKE ANY FURTHER REVISION IN YOUR PRICES.

IN DISCUSSIONS OF OCTOBER 20 AND 22, 1970, BETWEEN FABER AND ANOTHER MEMBER OF THE AD HOC EVALUATION PANEL, FABER STATED THAT IN ADDITION TO ITS LABORATORY IN LOS ANGELES, WHICH IS EQUIPPED TO MAKE BOTH PHYSICAL TESTS AND SPECTROMETRIC ANALYSIS OF LUBE OIL SAMPLES, FABER HAS A LABORATORY IN NEW YORK CITY AT WHICH PHYSICAL TESTS MAY BE MADE. FABER STATED, HOWEVER, THAT THE USE OF THE TWO LABORATORIES COULD BE DISADVANTAGEOUS SINCE SUPERVISION OF TEST RESULTS AND RECORDS SHOULD BE "LEFT UNDER ONE HEAD," AND FABER DID NOT REGARD DISTANCE AS A FACTOR ON THE BASIS THAT DELIVERY OF OIL SAMPLES FROM BALTIMORE TO LOS ANGELES IS FASTER THAN DELIVERY FROM BALTIMORE TO NEW JERSEY. (IN ITS PROPOSAL FABER HAD INCLUDED INFORMATION TO THE EFFECT THAT PARCEL POST BETWEEN NEW YORK CITY AND LONG ISLAND OR NEW JERSEY REQUIRED AT LEAST 3 DAYS BUT MORE OFTEN 4 DAYS WHEREAS AIR MAIL BETWEEN LOS ANGELES AND NORFOLK (VIRGINIA), BALTIMORE OR BOSTON TOOK ONLY 2 DAYS.)

IN ADDITION, THE RECORD INCLUDES A MEMORANDUM OF A TELEPHONE CONVERSATION BETWEEN A MEMBER OF THE EVALUATION COMMITTEE AND THE UNITED STATES COAST GUARD PERTAINING TO FABER'S PERFORMANCE OF SIMILAR SERVICES FOR THE COAST GUARD, WHICH INDICATES THAT FABER WAS REGARDED AS CAPABLE AND THAT NO PROBLEMS WERE ENCOUNTERED IN THE PERFORMANCE OF THE SERVICES FOR THE EAST COAST OF THE UNITED STATES.

ON OCTOBER 26, THE EVALUATION COMMITTEE ISSUED A MEMORANDUM RECOMMENDING AWARD TO ANALYSTS AS THE OFFEROR WHOSE OFFER WAS DETERMINED BY THE COMMITTEE TO BE MOST ADVANTAGEOUS TO THE GOVERNMENT. THE MEMORANDUM INCLUDED THE FOLLOWING PERTINENT STATEMENTS:

THE RECOMMENDATION OF CONTRACT AWARD TO ANALYSTS, INC. IS, IN PART, BASED ON A MAXIMUM RATING FOR TECHNICAL EFFICACY IN THAT ANALYSTS, INC. HAS LABORATORY FACILITIES ON BOTH THE EAST AND WEST COASTS WHICH WILL PROVIDE A MORE RAPID RESPONSE COVERING TEST RESULTS AS CALLED FOR BY PARAGRAPH 1.3 OF THE SOLICITATION. THE OTHER BIDDERS HAVE ONE TESTING LABORATORY EACH WHICH WOULD PROHIBIT THEIR BEING AS RESPONSIVE TO VESSELS OPERATING FROM THE OPPOSITE COAST FROM WHICH THE LABORATORY IS LOCATED. ALSO, ANALYSTS, INC. SHOWS A HIGHER SCORE FOR MSC EXPERIENCE UNDER THE CATEGORY OF QUALIFICATIONS SINCE THEY ARE CURRENTLY PROVIDING SIMILAR SERVICES UNDER MSC AREA COMMAND CONTRACTS AND THEY NOW HAVE A DATA BANK ON MSC VESSELS WHICH OTHER FIRMS DO NOT HAVE.

THE EVALUATION ANALYSIS SUPPORTING THE COMMITTEE'S MEMORANDUM SHOWED THAT IN ALL BUT THREE AREAS, REAL COST TO THE GOVERNMENT, EXTENDED VOYAGES, AND MSC EXPERIENCE, ALL THREE COMPETITIVE RANGE OFFERORS HAD RECEIVED EQUAL SCORES.

UNDER REAL COST TO THE GOVERNMENT, A MAJOR EVALUATION FACTOR LISTED IN THE RFQ, THE EVALUATION WORKSHEET SHOWS THAT TO THE PRICES QUOTED BY YOU AND BY FABER THERE WERE ADDED AMOUNTS SUFFICIENT TO COVER THE COST OF THE ESTIMATED NUMBER OF LONG DISTANCE TELEPHONE CALLS CONCERNING UNUSUAL WEAR PATTERNS BETWEEN YOUR RESPECTIVE LABORATORIES AND THE TWO MSC AREA COMMANDS. FOR EACH COMMAND THE NUMBER OF CALLS WAS ESTIMATED AT 425, OR 850 CALLS FOR BOTH COMMANDS, FOR THE CONTRACT PERIOD. NO SUCH ITEM WAS ADDED TO ANALYSTS' PRICE IN VIEW OF THE FACT THAT ONLY LOCAL TELEPHONE CALLS WOULD BE INVOLVED BETWEEN ANALYSTS' LABORATORIES IN NEW YORK CITY AND OAKLAND AND THE MSC AREA COMMANDS IN BROOKLYN AND OAKLAND. EVEN WITH CONSIDERATION OF THE TELEPHONE COST FACTOR, HOWEVER, FABER WAS LOWEST, YOU WERE SECOND, AND ANALYSTS WAS THIRD. ACCORDINGLY, USING THE FORMULA 40 (MAXIMUM NUMBER OF POINTS FOR REAL COST TO GOVERNMENT) X LOWEST PRICE (FABER'S EVALUATED PRICE) OVER OFFEROR'S EVALUATED PRICE, FABER WAS CREDITED WITH 40 POINTS, YOUR FIRM WITH 39.18 POINTS, AND ANALYSTS WITH 32.69 POINTS.

ON THE SUBFACTOR OF EXTENDED VOYAGES, WHICH CARRIED A MAXIMUM SCORE OF 5 POINTS, THE COMMITTEE STRESSED THE NEED FOR PROMPT AND FAST MAIL SERVICE TO CONVEY SAMPLES TO THE CONTRACTOR AND TO RETURN ANALYSIS RESULTS TO THE SHIPS INVOLVED. THE COMMITTEE CONCLUDED THAT ANALYSTS, WITH LABORATORIES ON EACH COAST OF THE UNITED STATES, WAS IN A MORE FAVORABLE POSITION THAN EITHER FABER OR YOU TO RECEIVE THE SAMPLES, MAKE ANALYSES, AND RETURN THE RESULTS TO THE APPROPRIATE MSC COMMAND. ACCORDINGLY, ON THIS SUBFACTOR ANALYSTS RECEIVED 5 POINTS, FABER 2.5 POINTS IN VIEW OF THE LOCATION OF ITS LABORATORY IN LOS ANGELES, AND YOUR FIRM ONLY 1.5 POINTS FOR YOUR LABORATORY IN PUERTO RICO. THE PARENTHETICAL NOTATION, "WITH INHERENT MAIL DELAY," APPEARS IN THE COMMITTEE COMMENTS ON THE LOCATION OF YOUR LABORATORY.

ON THE SUBFACTOR MSC EXPERIENCE, WHICH CARRIED A MAXIMUM SCORE OF 6 POINTS, THE COMMITTEE NOTED THAT ANALYSTS HAD ACQUIRED A BACKGROUND OF EXPERIENCE IN LUBE OIL MAINTENANCE TECHNIQUE UNDER ITS PAST MSC CONTRACTS, WHICH NEITHER FABER NOR YOU POSSESSED. ACCORDINGLY, ANALYSTS WAS AWARDED 6 POINTS FOR THIS FACTOR, AND NO POINTS WERE AWARDED TO FABER OR TO YOU.

THE TOTAL SCORES WERE ANALYSTS 92.69 POINTS; FABER 91.50 POINTS; AND YOUR FIRM 89.68 POINTS. AWARD WAS THEREFORE MADE TO ANALYSTS ON NOVEMBER 5, 1970, AND NOTIFICATIONS WERE ISSUED TO FABER AND TO YOU ON NOVEMBER 10 BY LETTER, WHICH FURNISHED THE FOLLOWING INFORMATION AS TO THE AWARD:

*** THIRTEEN FIRMS WERE SOLICITED AND SIX PROPOSALS WERE RECEIVED. THE CONTRACT WAS AWARDED TO ANALYSTS, INC., 820 EAST ELIZABETH AVENUE, LINDEN, NEW JERSEY AT AN ESTIMATED PRICE OF $172,085 FOR A TWENTY-FIVE MONTH PERIOD. THE AWARD WAS EVALUATED AS MOST ADVANTAGEOUS TO THE GOVERNMENT AFTER CONSIDERATION OF (1) TECHNICAL EFFICACY OF THE PROPOSED ANALYSIS SYSTEM, (2) QUALIFICATIONS OF THE OFFEROR'S LABORATORY AND ORGANIZATION AND CAPACITY TO MONITOR THE SYSTEM IN THE MSC TYPE OPERATION, AND (3) REAL COST TO THE GOVERNMENT.

IN JUSTIFICATION OF THE METHOD OF EVALUATION, MSC STATES THAT THE CONTRACTING OFFICER WAS OF THE OPINION THAT A PROPER EVALUATION OF OFFERS HAD TO TAKE INTO ACCOUNT THE ABILITY OF OFFERORS TO PERFORM IN A TIMELY MANNER AND THE ABILITY, OR LACK OF ABILITY, TO RECOGNIZE A TREND OF WEAR FOR AT LEAST THE FIRST SEVERAL MONTHS OF THE CONTRACT PERIOD. HE WAS ALSO OF THE OPINION THAT APPROPRIATE WEIGHTS COULD BE ASSIGNED TO SUCH FACTORS WITHOUT PRECLUDING QUALIFIED OFFERORS FROM EFFECTIVELY COMPETING FOR THE CONTRACT. ACCORDINGLY, WHILE MSC CONCEDES THAT SUCH CRITERIA FAVORED THE CURRENT CONTRACTOR (ANALYSTS), MSC VIEWS THE 5- AND 6-POINT VALUES ASSIGNED TO EXTENDED VOYAGES AND MSC EXPERIENCE, RESPECTIVELY, AS RELATIVELY LOW. FURTHER, MSC'S COUNSEL RELATES THE MSC EXPERIENCE FACTOR TO THE ABILITY OF OFFERORS TO COLLATE NEW ANALYSIS DATA WITH DATA GATHERED FROM EARLIER ANALYSES AND STATES THAT SINCE ONLY ANALYSTS HAS A DATA BANK, ANALYSTS RECEIVED THE FULL 6 POINTS FOR THIS SUBFACTOR WHILE FABER AND YOUR FIRM RECEIVED NO POINTS. ON THE MATTER OF CERTIFICATION OF ANALYSTS AND FABER UNDER THE DEPARTMENT OF DEFENSE EQUIPMENT OIL ANALYSIS PROGRAM, THE CONTRACTING OFFICER STATES THAT IT WAS NOT UNTIL AFTER THE AWARD HAD BEEN MADE TO ANALYSTS THAT MSC BECAME AWARE THAT UNDER CHANGE NO. 1, DATED SEPTEMBER 14, 1970, TO DEPARTMENT OF DEFENSE DIRECTIVE 4151.14, DATED MAY 15, 1969, SUCH CERTIFICATION OF CONTRACTORS CONDUCTING OIL ANALYSIS FOR DEPARTMENT OF DEFENSE ACTIVITIES WAS REQUIRED. ON THE BASIS, HOWEVER, OF A PRESOLICITATION STATEMENT BY A DOD EOAPA REPRESENTATIVE THAT ANALYSTS, AS WELL AS YOUR FIRM AND A THIRD FIRM (WHICH DID NOT COMPETE FOR THIS CONTRACT), WAS WELL QUALIFIED TO PROVIDE THE SERVICES IN QUESTION, AND IN LIGHT OF A DETERMINATION BY MSC, BASED ON PREVIOUS MSC EXPERIENCE OF ANALYSTS AND OTHER INFORMATION, THAT ANALYSTS WAS WELL QUALIFIED TECHNICALLY AND ADMINISTRATIVELY TO PERFORM THE CONTRACT, THE CONTRACTING OFFICER STATES THAT CERTIFICATION (POST AWARD) WAS NOT DEEMED NECESSARY.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-501(B) REQUIRES THAT SOLICIATIONS CONTAIN THE INFORMATION NECESSARY TO ENABLE A PROSPECTIVE OFFEROR TO PREPARE A PROPOSAL OR QUOTATION PROPERLY, AND THAT SUCH INFORMATION BE SET FORTH IN FULL IN THE SOLICITATIONS, EXCEPT FOR CERTAIN STANDARD PROCUREMENT FORMS WHICH MAY BE INCORPORATED IN THE SOLICITATIONS BY REFERENCE.

IN APPLYING ASPR 3-501(B) TO PROCUREMENTS IN WHICH POINT EVALUATION FORMULAS ARE USED IN THE EVALUATION PROCESS, WE HAVE STATED THAT SOUND PROCUREMENT POLICY DICTATES THAT OFFERORS BE INFORMED AS TO THE EVALUATION FACTORS AND THE RELATIVE IMPORTANCE TO BE ATTACHED TO EACH FACTOR. COMP. GEN. 336, 342 (1967); 44 ID. 439 (1965). WHILE WE HAVE NEVER HELD THAT ANY MATHEMATICAL FORMULA NEED BE USED IN THE EVALUATION PROCESS, WE BELIEVE THAT WHEN NUMERICAL RATINGS ARE USED OFFERORS SHOULD BE INFORMED, AT THE LEAST, OF THE MAJOR FACTORS TO BE CONSIDERED AND THE BROAD SCHEME OF SCORING TO BE EMPLOYED. FURTHER, WHETHER OR NOT NUMERICAL RATINGS ARE USED, IT IS OUR VIEW THAT OFFERORS SHOULD BE GIVEN NOTICE OF ANY MINIMUM STANDARDS TO BE REQUIRED AS TO ANY PARTICULAR ELEMENT OF EVALUATION TOGETHER WITH REASONABLY DEFINITE INFORMATION AS TO THE DEGREE OF IMPORTANCE TO BE ACCORDED TO PARTICULAR FACTORS IN RELATION TO EACH OTHER. 49 COMP. GEN. 229 (1969).

IN THE INSTANT CASE, THE RFQ, AS INDICATED ABOVE, SET FORTH THREE MAJOR EVALUATION FACTORS IN GENERAL TERMS AND ALSO DELINEATED CERTAIN AREAS IN WHICH OFFERORS WERE REQUIRED TO FURNISH DETAILED INFORMATION. SUBSEQUENTLY, SPECIFIC CRITERIA, OR SUBFACTORS, WERE ESTABLISHED BY MSC FOR EACH OF THE MAJOR EVALUATION FACTORS TOGETHER WITH A NUMERICAL SCORING SYSTEM. HOWEVER, NO INFORMATION WAS GIVEN TO OFFERORS AS TO SUCH CRITERIA OR THE RELATIVE IMPORTANCE TO BE ATTACHED THERETO. FURTHER, SINCE TWO OF THE SUBFACTORS INVOLVED, EXTENDED VOYAGES AND MSC EXPERIENCE, ACCOUNT FOR THE NARROW MARGIN BY WHICH ANALYSTS OUTPOINTED BOTH FABER AND YOUR FIRM, IT IS APPARENT THAT KNOWLEDGE OF SUCH SUBFACTORS WAS IMPORTANT TO OFFERORS AND THAT OFFERORS SHOULD HAVE BEEN SPECIFICALLY ADVISED OF THEIR CONSIDERATION IN EVALUATING PROPOSALS.

SINCE THE RFQ GAVE THE LOCATIONS BY AREA FOR EACH OF THE SHIPS TO BE SERVICED UNDER THE CONTACT, STRESSED THE NEED FOR PROMPT TESTING OF SAMPLES AND QUICK COMMUNICATION OF RESULTS TO THE GOVERNMENT, AND SPECIFICALLY SOLICITED INFORMATION FROM OFFERORS AS TO METHOD OF HANDLING SAMPLES FOR BOTH THE EAST AND WEST COASTS AND SPEED OF RESPONSE BY LABORATORY BASED ON UNITED STATES POSTAL SERVICE, WE BELIEVE THAT OFFERORS SHOULD HAVE EXPECTED THAT LOCATION OF LABORATORY FACILITIES AND SPEED OF MAIL SERVICE WOULD BE CONSIDERED IN THE EVALUATION PROCESS. FURTHER, SINCE THE TWO COASTAL LABORATORIES POSSESSED BY ANALYSTS OBVIOUSLY ENABLE ANALYSTS TO PROVIDE MORE EXPEDITIOUS SERVICE THAN EITHER FABER OR YOUR FIRM CAN PROVIDE FROM THEIR SINGLE LABORATORIES, AND SINCE YOUR LABORATORY IS FARTHER REMOVED FROM THE RESPECTIVE MSC AREA COMMANDS THAN EITHER ANALYSTS' OR FABER'S LABORATORIES, WE DO NOT VIEW THE SCORING ON THIS SUBFACTOR AS UNREASONABLE.

ON THE EVALUATION OF THE MSC EXPERIENCE SUBFACTOR, HOWEVER, WE HAVE SEVERAL SERIOUS OBJECTIONS. FIRST, THE RFQ, BY REQUESTING THE NAMES OF FIRMS FOR WHOM OFFERORS HAD RENDERED SIMILAR SERVICES, IMPLIED THAT COMMERCIAL EXPERIENCE WOULD BE CONSIDERED BY MSC IN SELECTING THE MOST ADVANTAGEOUS OFFERS. NO INDICATION WAS GIVEN TO OFFERORS THAT ONLY MSC EXPERIENCE WOULD BE CONSIDERED IN THE EVALUATION PROCESS. SECOND, IF (AS MSC'S COUNSEL HAS EXPLAINED IN HIS LETTER OF APRIL 16) THIS SUBFACTOR RELATES MERELY TO THE ABILITY OF OFFERORS TO COLLATE NEW ANALYSIS DATA WITH PREVIOUSLY RECORDED MSC ANALYSIS DATA, THEN THE TERM "MSC EXPERIENCE" IS A MISNOMER, THE TRUE SUBFACTOR BEING "ABILITY TO COLLATE ANALYSIS DATA." THIRD, SINCE IT IS OUR UNDERSTANDING THAT THE PREVIOUS SIMILAR MSC CONTRACTS WITH ANALYSTS INCLUDED LANGUAGE SUCH AS APPEARS IN PARAGRAPH 1.3, SECTION 1, OF THIS RFQ, MAKING ALL REPORTS AND ANALYSIS DATA THE PROPERTY OF THE GOVERNMENT, IT APPEARS THAT MSC COULD HAVE REQUIRED ANALYSTS TO MAKE SUCH DATA AVAILABLE TO THE GOVERNMENT IN THE EVENT OF AWARD OF THE CURRENT CONTRACT TO ANOTHER OFFEROR.

IN LINE WITH THE FOREGOING, WHILE IT IS CONCEIVABLE THAT ANALYSTS, BY REASON OF ITS FAMILIARITY WITH THE PREVIOUSLY AMASSED DATA, MIGHT BE CAPABLE OF MORE QUICKLY COLLATING NEW DATA AND RECOGNIZING TRENDS IN MACHINERY WEAR THAN A NEW CONTRACTOR, WE QUESTION THE ABSENCE OF ANY POINT CREDIT TO OTHER RESPONSIBLE OFFERORS FOR ABILITY TO COLLATE THE NEW DATA WITH THE EXISTING DATA. WE SUGGEST, THEREFORE, THAT AS IN THE EVALUATION OF THE SUBFACTOR OF EXTENDED VOYAGES, A SLIDING SCALE COULD HAVE BEEN USED TO ALLOW FOR THE RESPECTIVE ABILITIES OF ALL OFFERORS IN THIS REGARD. THIS IS PARTICULARLY SIGNIFICANT IN VIEW OF THE FACT THAT ANALYSTS' TOTAL SCORE WAS BUT 1.19 POINTS HIGHER THAN THE TOTAL SCORE OF FABER AND 3.01 POINTS THAN THE SCORE OF YOUR FIRM, BOTH OF WHOM QUOTED SUBSTANTIALLY LOWER PRICES THAN ANALYSTS.

MORE IMPORTANT THAN SUCH DEFICIENCIES IN THE RFQ, HOWEVER, FOR THE REASONS DISCUSSED BELOW WE ARE UNABLE TO CONCUR WITH THE POSITION OF THE PROCURING ACTIVITY THAT THE AWARD TO ANALYSTS RESULTED IN THE CONTRACT WHICH WAS MOST ADVANTAGEOUS TO THE GOVERNMENT.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-101, RELATING TO NEGOTIATION AS DISTINGUISHED FROM FORMAL ADVERTISING, CONTEMPLATES THAT IN A COMPETITIVELY NEGOTIATED PROCUREMENT THE AWARD SHALL BE MADE TO THE BEST ADVANTAGE OF THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. ASPR 3- 805.1, CONSISTENT WITH 10 U.S.C. 2304(G), REQUIRES THE CONDUCT, AFTER RECEIPT OF INITIAL PROPOSALS, OF DISCUSSIONS WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED, WITH CERTAIN EXCEPTIONS NOT HERE PERTINENT.

UNDER SUCH PROVISIONS, IT IS APPARENT THAT PRICE IS A FACTOR WHICH MAY NOT BE DISREGARDED IN THE MAKING OF THE AWARD. THIS IS PARTICULARLY TRUE WHERE, AS HERE, MORE THAN ONE ACCEPTABLE OFFER FROM A TECHNICALLY QUALIFIED SOURCE REMAINS FOR CONSIDERATION AFTER CONDUCT OF THE NEGOTIATIONS CONTEMPLATED BY ASPR 3-805.1(A). NOR DO WE BELIEVE THAT, WHERE A FIXED-PRICE CONTRACT IS CONTEMPLATED, THE USE FOR EVALUATION PURPOSES OF A NUMERICAL RATING IN WHICH COST TO THE GOVERNMENT IS ASSIGNED POINTS ALONG WITH OTHER FACTORS IN ITSELF JUSTIFIES ACCEPTANCE OF THE OFFER WITH THE HIGHEST NUMBER OF POINTS WITHOUT REGARD TO PRICE. (SEE 44 COMP. GEN. 439 (1965).) RATHER, IT IS OUR VIEW THAT IF A LOWER PRICED, LOWER SCORED OFFER MEETS THE GOVERNMENT'S NEEDS, ACCEPTANCE OF A HIGHER PRICED, HIGHER SCORED OFFER SHOULD BE SUPPORTED BY A SPECIFIC DETERMINATION THAT THE TECHNICAL SUPERIORITY OF THE HIGHER PRICED OFFER WARRANTS THE ADDITIONAL COST INVOLVED IN THE AWARD OF A CONTRACT TO THAT OFFEROR.

THE RECORD INDICATES THAT THE AWARD TO ANALYSTS WAS BASED ON ITS HIGH SCORE. THERE IS NO INDICATION THAT ANY DETERMINATION WAS MADE THAT NEITHER FABER NOR YOUR FIRM COULD HAVE SATISFACTORILY MET THE GOVERNMENT'S REQUIREMENTS. CONVERSELY, ADVICE INCLUDED IN A LETTER DATED JANUARY 14, 1971, FROM THE CONTRACTING OFFICER TO YOUR FIRM TO THE EFFECT THAT YOUR OFFER MET THE CRITERIA REQUIRED BY THE RFQ AND STATING THE DESIRE OF MSC THAT YOU COMPETE FOR FUTURE MSC PROCUREMENTS MAY BE CONSTRUED AS EVIDENCE THAT YOUR OFFER WAS ACCEPTABLE. IN THE CIRCUMSTANCES, ABSENT EVIDENCE OF ANY BASIS FOR DISQUALIFICATION OF EITHER FABER OR YOUR FIRM, IT IS OUR OPINION THAT THE RECORD DOES NOT SUPPORT THE CONCLUSION OF MSC THAT AWARD TO ANALYSTS WAS MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED, AS CONTEMPLATED BY THE PROCUREMENT REGULATIONS.

THERE IS NO EVIDENCE IN THE RECORD, HOWEVER, OF ANY BAD FAITH ON THE PART OF THE CONTRACTING ACTIVITY IN THE CONDUCT OF THE PROCUREMENT. IN THE CIRCUMSTANCES, WE ARE UNABLE TO CONCLUDE THAT THE AWARD IS ILLEGAL. VIEW THEREOF, AND SINCE THERE IS NO TERMINATION FOR CONVENIENCE OF THE GOVERNMENT CLAUSE IN THE CONTRACT, WE DO NOT BELIEVE THAT IT WOULD BE IN THE INTERESTS OF THE GOVERNMENT TO NOW TERMINATE THE CONTRACT. YOUR PROTEST IS THEREFORE DENIED.

FOR YOUR INFORMATION, WE ARE CALLING THE ATTENTION OF THE DEPARTMENT OF THE NAVY TO THE DEFICIENCIES IN THE PROCUREMENT WITH THE REQUEST THAT ACTION BE INITIATED TO PRECLUDE RECURRENCE OF SUCH DEFICIENCIES IN FUTURE PROCUREMENTS.