B-179259, FEB 14, 1974

B-179259: Feb 14, 1974

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AWARD OF A NEGOTIATED COST TYPE CONTRACT TO LOW OFFEROR WHOSE TECHNICAL RATING WAS 3 POINTS LESS THAN THAT OF PROTESTER WAS PROPER EXERCISE OF ADMINISTRATIVE DISCRETION AS POINT SPREAD DOES NOT AUTOMATICALLY ESTABLISH THAT HIGHER RATED PROPOSAL IS SIGNIFICANTLY SUPERIOR AND WHERE. TWO OFFERORS ARE ESSENTIALLY EQUAL TECHNICALLY PRICE IS PROPERLY DETERMINATIVE CONSIDERATION. 2. RECOMMENDATION OF DIVISION DIRECTOR THAT OF TWO TECHNICAL PROPOSALS RATED SUBSTANTIALLY EQUAL ONE WAS PREFERABLE TO THE OTHER CAN PROPERLY BE CONSIDERED BY CONTRACTING OFFICER ALTHOUGH RECOMMENDATION WAS MADE ON BASIS OF FACTORS NOT SPECIFICALLY LISTED IN RFP. THE PROTEST IS DENIED. FOURTEEN PROPOSALS WERE RECEIVED IN RESPONSE TO THE RFP AND WERE EVALUATED IN ACCORDANCE WITH THE FOLLOWING EVALUATION CRITERIA AS STATED IN THE RFP: A.

B-179259, FEB 14, 1974

1. AWARD OF A NEGOTIATED COST TYPE CONTRACT TO LOW OFFEROR WHOSE TECHNICAL RATING WAS 3 POINTS LESS THAN THAT OF PROTESTER WAS PROPER EXERCISE OF ADMINISTRATIVE DISCRETION AS POINT SPREAD DOES NOT AUTOMATICALLY ESTABLISH THAT HIGHER RATED PROPOSAL IS SIGNIFICANTLY SUPERIOR AND WHERE, AS HERE, TWO OFFERORS ARE ESSENTIALLY EQUAL TECHNICALLY PRICE IS PROPERLY DETERMINATIVE CONSIDERATION. 2. RECOMMENDATION OF DIVISION DIRECTOR THAT OF TWO TECHNICAL PROPOSALS RATED SUBSTANTIALLY EQUAL ONE WAS PREFERABLE TO THE OTHER CAN PROPERLY BE CONSIDERED BY CONTRACTING OFFICER ALTHOUGH RECOMMENDATION WAS MADE ON BASIS OF FACTORS NOT SPECIFICALLY LISTED IN RFP, SINCE FACTORS USED DID NOT CONFLICT WITH OR ADD TO CRITERIA STATED IN RFP.

TO ANALYTIC SYSTEMS, INCORPORATED:

ANALYTIC SYSTEMS, INCORPORATED (ASI), PROTESTS THE AWARD OF A COST TYPE CONTRACT TO APPLIED MANAGEMENT SERVICES (AMS) UNDER REQUEST FOR PROPOSALS (RFP) NO. 73-18, ISSUED BY THE OFFICE OF EDUCATION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, FOR PERFORMANCE OF A SURVEY TO OBTAIN INFORMATION ON NONCOLLEGIATE, POST SECONDARY, CAREER INSTITUTIONS, CONCERNING ENROLLMENTS, TYPES OF PROGRAMS, TRAINING COSTS, AND OTHER SPECIFIC DATA. FOR REASONS DISCUSSED BELOW, THE PROTEST IS DENIED.

FOURTEEN PROPOSALS WERE RECEIVED IN RESPONSE TO THE RFP AND WERE EVALUATED IN ACCORDANCE WITH THE FOLLOWING EVALUATION CRITERIA AS STATED IN THE RFP:

A. ANALYSIS OF PROPOSED WORK. 45 PERCENT

1. DEMONSTRATED UNDERSTANDING OF THE TASKS REQUIRED. (15 POINTS)

2. IMAGINATION AND INSIGHT USED IN DESCRIBING REASONABLE AND WORKABLE PROCEDURES FOR ACCOMPLISHING THE TASKS. (20 POINTS)

3. CAPACITY OF THE OFFEROR TO COMPLETE THIS TASK WITHIN THE SPECIFIED TIME. (10 POINTS)

B. APPRAISAL OF STAFF AND KNOWLEDGE IN THIS AREA. 40 PERCENT

1. KNOWLEDGE AND EXPERIENCE WORKING WITH CAREER SCHOOLS AND THE FIELD OF VOCATIONAL EDUCATION. (10 POINTS)

2. REVIEW OF THE QUALIFICATIONS AND PRIOR EXPERIENCE OF THE PROJECT DIRECTOR, AND THE KEY PERMANENT STAFF. (15 POINTS)

3. REVIEW OF THE TIME, NUMBER, TYPE AND COST OF ALL PERSONNEL PLANNED FOR THIS PROJECT. PERSONNEL ESTIMATES SHOULD BE SHOWN BY TASK. (15 POINTS)

C. ESTIMATE OF COST 15 PERCENT

UPON COMPLETION OF THE TECHNICAL AND COST ANALYSIS OF THE INITIAL PROPOSALS, NEGOTIATIONS WERE CONDUCTED WITH THE SIX OFFERORS DEEMED TO BE WITHIN THE COMPETITIVE RANGE. "BEST AND FINAL" OFFERS WERE REQUESTED FROM THE SIX RESPECTIVE FIRMS BY LETTER OF APRIL 23, 1973. ON THE BASIS OF THE FINAL TOTAL SCORES ATTAINED AS A RESULT OF BOTH THE TECHNICAL AND COST REVIEWS THE SIX OFFERORS WERE RANKED AS FOLLOWS:

TOTAL SCORE

TECHNICAL

AND FINAL

FIRM COST REVIEW RANK OFFER

ANALYTIC SYSTEMS, INC. 86 1 $122,649

APPLIED MANAGEMENT SCIENCES 83 2 118,982

AMERICAN COLLEGE TESTING 78 3103,740

WESTAT 74 4 154,104

EDUCATION SYSTEMS RESOURCES 74 5 153,530

COLUMBIA RESEARCH ASSOCIATION 62 6 99,234

THE TECHNICAL REVIEW PANEL RECOMMENDED THAT EITHER ASI OR AMS BE AWARDED THE CONTRACT SINCE THEIR PROPOSALS RANKED HIGHEST THROUGHOUT THE ENTIRE REVIEWING PROCESS FOR BOTH TECHNICAL COMPETENCY AND AUTOMATIC DATA PROCESSING (ADP) CAPABILITY. (IN THIS CONNECTION, BOTH ASI AND AMS WERE FOUND TO BE SATISFACTORY IN TERMS OF UNDERSTANDING THE ADP REQUIREMENTS, ALTHOUGH ASI RECEIVED A HIGHER SCORE THAN AMS IN THIS AREA.) AFTER "BEST AND FINAL" OFFERS WERE REVIEWED, A RECOMMENDATION FOR AWARD TO AMS WAS MADE TO THE CONTRACTING OFFICER BY THE ASSISTANT COMMISSIONER FOR EDUCATION STATISTICS, WHO BASED HER RECOMMENDATION PRIMARILY ON THE STATED PREFERENCE FOR AMS THAT SHE HAD RECEIVED FROM MR. SIDNEY SHTULMAN, DIRECTOR, DIVISION OF SURVEY PLANNING AND ANALYSIS. THE CONTRACTING OFFICER MADE THE AWARD TO AMS ON THE BASIS OF "THE PROGRAM'S TECHNICAL ADVICE AND RECOMMENDATION AND THE FACT THAT THE COMPANY SELECTED WAS THE LOWER IN COST OF THE TWO MOST HIGHLY RATED TECHNICALLY."

ASI CONTENDS THAT ALTHOUGH ITS PROPOSAL RECEIVED THE HIGHEST RATING FROM THE EVALUATING PANEL, MR. SHTULMAN SELECTED AMS TO RECEIVE THE AWARD ON THE BASIS OF CRITERIA OTHER THAN THOSE SET FORTH IN THE RFP. IN THIS CONNECTION, ASI MAINTAINS THAT THE RFP DOES NOT GIVE THE GOVERNMENT THE "ELASTICITY" TO IGNORE THE 3 POINT DIFFERENCE IN THE RATING ENJOYED BY IT. FURTHERMORE, IT IS CLAIMED THAT THE SELECTION WAS SOLELY MR. SHTULMAN'S DECISION AND THAT AT NO POINT PRIOR TO THE CONTRACT AWARD WAS HIS DECISION CHALLENGED BY ANYONE, INCLUDING THE CONTRACTING OFFICER. ASI ALSO CONTENDS THAT THE THREE PREVIOUS AWARDS AMS RECEIVED FROM THE OFFICE OF EDUCATION DURING THE FINAL QUARTER OF FISCAL YEAR 1973 COULD INTERFERE WITH ITS ABILITY TO FURNISH THE KEY PERSONNEL LISTED IN ITS PROPOSAL AND THAT THIS POSSIBILITY SHOULD HAVE BEEN TAKEN INTO CONSIDERATION DURING EVALUATION OF AMS'S PROPOSAL. FINALLY, ASI REFERS TO A STATEMENT IN MR. SHTULMAN'S MEMORANDUM TO THE EFFECT THAT AN AGENCY STAFF MEMBER WHO HAD PREVIOUSLY WORKED WITH THE PROPOSED AMS PROJECT DIRECTOR FOUND HIM TO BE NONRESPONSIVE AND PERSONALLY OBNOXIOUS, AND QUESTIONS WHETHER MR. SHTULMAN OVERLOOKED THIS FACTOR AND WHETHER THIS CRITICISM WAS MADE KNOWN TO THE REVIEW PANEL.

WHILE IT IS TRUE THAT ASI'S PROPOSAL DID RECEIVE THE HIGHEST RATING, THE POINT SPREAD BETWEEN ASI'S SCORE OF 86 AND THE AMS SCORE OF 83 WAS NOT CONSIDERED TO BE OF SUFFICIENT MAGNITUDE TO INDICATE THAT ASI'S PROPOSAL WAS TECHNICALLY SUPERIOR. CONSEQUENTLY, THE TECHNICAL REVIEW PANEL CONCLUDED THAT THESE TWO PROPOSALS WERE OF EQUAL MERIT AND RECOMMENDED THAT THE CONTRACT BE AWARDED TO EITHER ASI OR AMS.

OUR OFFICE HAS HELD THAT RELATIVELY SMALL POINT DIFFERENCES RESULTING FROM THIS TYPE OF SCORING PROCEDURE SHOULD NOT NECESSARILY DETERMINE WHICH OFFEROR SHOULD BE AWARDED THE CONTRACT SINCE A POINT EVALUATION REFLECTS A QUANTIFICATION OF SUBJECTIVE JUDGMENTS WHICH MAY OR MAY NOT BE DRAWN WITH THE PRECISION EVIDENCED BY THE POINT SCORES. B-173427, MARCH 14, 1972. IN 52 COMP. GEN. 686 (1973) WE UPHELD THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION'S PROPOSED AWARD TO AN OFFEROR WHOSE PROPOSAL RECEIVED A FINAL TECHNICAL SCORE OF 730 OUT OF A POSSIBLE 1000 POINTS, WHICH WAS 81 POINTS LESS THAN THE TECHNICAL SCORE ATTAINED BY THE PROTESTING OFFEROR. WE STATED THE FOLLOWING IN THAT DECISION:

"THE FACT THAT THERE IS A SPREAD OF 81 POINTS BETWEEN THE TWO PROPOSALS DOES NOT AUTOMATICALLY ESTABLISH THAT THE HIGHER RATED PROPOSAL IS MATERIALLY SUPERIOR. WE BELIEVE THAT TECHNICAL POINT RATINGS ARE USEFUL AS GUIDES FOR INTELLIGENT DECISION-MAKING IN THE PROCUREMENT PROCESS, BUT WHETHER A GIVEN POINT SPREAD BETWEEN TWO COMPETING PROPOSALS INDICATES THE SIGNIFICANT SUPERIORITY OF ONE PROPOSAL OVER ANOTHER DEPENDS UPON THE FACTS AND CIRCUMSTANCES OF EACH PROCUREMENT AND IS PRIMARILY A MATTER WITHIN THE DISCRETION OF THE PROCURING AGENCY."

SEE ALSO 52 COMP. GEN. 738 (1973).

IT WAS ONLY AFTER THE TECHNICAL REVIEW PANEL DETERMINED THAT THE PROPOSALS OF AMS AND ASI WERE OF SUBSTANTIALLY EQUAL TECHNICAL MERIT THAT MR. SHTULMAN, AS DIRECTOR OF THE DIVISION OF SURVEY PLANNING AND ANALYSIS, WAS CONSULTED AND RECOMMENDED THAT AMS BE AWARDED THE CONTRACT. HE BASED THIS RECOMMENDATION ON A COMPARISON OF THE TWO PROPOSALS WITH REGARD TO FIVE FACTORS: SAMPLE, ANALYSIS PLAN, FOLLOW UP, PERSONNEL, AND SURVEY PROCESSING. IT IS APPARENT THAT THESE FIVE FACTORS WERE NOT SPECIFICALLY STATED AS SUCH IN THE LIST OF EVALUATION CRITERIA THAT APPEARED IN THE RFP. HOWEVER, IT IS EQUALLY APPARENT THAT A VALID ANALYSIS OF THE VARIOUS PROPOSALS BASED ON THE SPECIFIC EVALUATION CRITERIA STATED IN THE RFP WOULD NECESSARILY REQUIRE CAREFUL CONSIDERATION OF THE FIVE FACTORS MR. SHTULMAN APPLIED IN HIS REVIEW. FOR EXAMPLE, CONSIDERING MR. SHTULMAN'S "SAMPLE" FACTOR, THE EVALUATION CRITERIA MERELY STATED IN ITEMS A(1) AND A(2) THAT A "DEMONSTRATED UNDERSTANDING OF THE TASKS REQUIRED" AND THE "IMAGINATION AND INSIGHT USED IN DEVELOPING REASONABLE AND WORKABLE PROCEDURES FOR ACCOMPLISHING THE TASKS" WOULD BE CONSIDERED DURING PROPOSAL EVALUATION. HOWEVER, PAGE 7 OF THE DESCRIPTION OF "PROPOSAL REQUIREMENTS" THAT WAS INCLUDED IN THE RFP DESCRIBED ONE OF THE REQUIRED TASKS IN THE FOLLOWING MANNER:

"1. DEVELOP FINAL SAMPLING PLAN, WITH SAMPLING SIZES BY TYPE OF SCHOOL TO BE SPECIFIED BY USOE. ***OFFERORS SHOULD INDICATE THE APPROACH TO THE SAMPLE DESIGN THEY WOULD PROPOSE TO USE. ***"

OBVIOUSLY, ANALYSIS UNDER ITEMS A(1) AND A(2) OF THE EVALUATION CRITERIA WOULD NECESSITATE REVIEW OF EACH OFFEROR'S SAMPLING PLAN. SIMILARLY, THE INFORMATION INCLUDED IN THE "PROPOSAL REQUIREMENTS" INFORMED ALL OFFERORS OF THE IMPORTANCE OF THE OTHER FACTORS MR. SHTULMAN CONSIDERED IN HIS ANALYSIS.

THUS, IT APPEARS THAT WHILE MR. SHTULMAN'S EVALUATION DID NOT LITERALLY FOLLOW THE CRITERIA AS LISTED AND WEIGHTED IN THE RFP, THE FACTORS MR. SHTULMAN EMPLOYED IN HIS REVIEW DID NOT CONFLICT WITH OR ADD TO THE LIST OF CRITERIA STATED IN THE RFP BUT MERELY REPRESENTED A RESTATEMENT OF WHAT HE CONSIDERED THE MOST SIGNIFICANT CRITERIA OF THOSE APPEARING IN THE RFP.

FURTHERMORE, DESPITE ASI'S CONTENTION TO THE CONTRARY, THERE IS NO INDICATION THAT MR. SHTULMAN'S REVIEW AND SUBSEQUENT RECOMMENDATION WAS THE ONLY OR PRIMARY BASIS FOR THE CONTRACTING OFFICER'S DECISION TO AWARD THE CONTRACT TO AMS. ACCORDING TO THE CONTRACTING OFFICER'S STATEMENT OF FACTS, HE MADE THE AWARD TO AMS "*** IN THE RELIANCE UPON THE PROGRAM'S TECHNICAL ADVICE AND RECOMMENDATION AND THE FACT THAT THE COMPANY SELECTED WAS THE LOWER IN COST OF THE TWO MOST HIGHLY RATED TECHNICALLY ***." ALTHOUGH ASI HAS STATED THAT THERE IS SOME DOUBT AS TO WHETHER THE PROPOSALS WERE SUFFICIENTLY CLEAR AS TO COSTS, IT HAS FURNISHED NO EVIDENCE TO INDICATE THAT THE COST EVALUATIONS WERE ERRONEOUS. THEREFORE, THERE IS NO BASIS FOR OUR OFFICE TO TAKE EXCEPTION TO THE CONTRACTING OFFICER'S CONCLUSION WITH RESPECT TO THIS FACTOR. IN THIS CONNECTION, WE HAVE STATED:

"WHERE, AS HERE, TWO OFFERORS ARE ESSENTIALLY EQUAL AS TO TECHNICAL ABILITY AND RESOURCES TO SUCCESSFULLY PERFORM A RESEARCH AND DEVELOPMENT EFFORT, THE ONLY CONSIDERATION REMAINING FOR EVALUATION IS PRICE. IN SUCH A SITUATION, WE BELIEVE THE LOWER PRICED OFFER REPRESENTS AN ADVANTAGE TO THE GOVERNMENT WHICH SHOULD NOT BE IGNORED."

SEE 50 COMP. GEN. 246 (1970). SEE ALSO B-173137, OCTOBER 8, 1971. SINCE THE PROPOSALS OF AMS AND ASI WERE DETERMINED TO BE SUBSTANTIALLY EQUAL IN TECHNICAL MERIT IT WAS THEREFORE PROPER TO AWARD THE CONTRACT TO AMS ON THE BASIS OF ITS LOWER COST PROPOSAL.

MOREOVER, IT IS CERTAINLY PERMISSIBLE FOR A CONTRACTING OFFICER TO SEEK AND ACCEPT ADVICE OR RECOMMENDATIONS FROM OFFICIAL SOURCES BEFORE HE MAKES A FINAL DECISION. THUS, PARAGRAPH 1-3.801-2 OF THE FEDERAL PROCUREMENT REGULATIONS STATES THE FOLLOWING:

"(A) CONTRACTING OFFICERS, ACTING WITHIN THE SCOPE OF THEIR APPOINTMENTS (AND IN SOME CASES ACTING THROUGH THEIR AUTHORIZED REPRESENTATIVES) ARE THE EXCLUSIVE AGENTS OF THEIR RESPECTIVE AGENCIES TO ENTER INTO AND ADMINISTER CONTRACTS ON BEHALF OF THE GOVERNMENT IN ACCORDANCE WITH AGENCY PROCEDURES. EACH CONTRACTING OFFICER IS RESPONSIBLE FOR PERFORMING OR HAVING PERFORMED ALL ADMINISTRATIVE ACTIONS NECESSARY FOR EFFECTIVE CONTRACTING. THE CONTRACTING OFFICER SHALL EXERCISE REASONABLE CARE, SKILL, AND JUDGMENT AND SHALL AVAIL HIMSELF OF ALL OF THE ORGANIZATION TOOLS (SUCH AS THE ADVICE OF SPECIALISTS IN THE FIELDS OF CONTRACTING, FINANCE, LAW, CONTRACT AUDIT, ENGINEERING, TRAFFIC MANAGEMENT, AND COST OR PRICE ANALYSIS) NECESSARY TO ACCOMPLISH THE PURPOSE AS, IN HIS DISCRETION, WILL BEST SERVE THE INTERESTS OF THE GOVERNMENT."

CONCERNING THE ALLEGATION QUESTIONING AMS'S ABILITY TO PROVIDE THE KEY PERSONNEL REQUIRED BY THE CONTRACT, IN LIGHT OF THE THREE OTHER AWARDS THEY HAD RECEIVED, THERE IS NO BASIS IN THE RECORD UPON WHICH WE CAN CONCLUDE THAT AMS WILL BE UNABLE TO COMPLY WITH THIS REQUIREMENT. THE REPORT FROM THE OFFICE OF EDUCATION STATES THAT THE CONTRACTING OFFICER PROVIDED VERBAL ASSURANCES THAT THE AVAILABILITY OF SUCH PERSONNEL WAS CONSIDERED PRIOR TO AWARD AND CONSTITUTED NO PROBLEM. THE ADMINISTRATIVE REPORT ALSO SAYS THAT "PERSONNEL ASSIGNMENTS UNDER THE THREE OTHER CONTRACTS WITH AMS ARE SUCH AS TO MAKE ASSIGNMENTS UNDER THE INSTANT CONTRACT FEASIBLE."

FINALLY, WITH REGARD TO THE MATTER OF THE PROPOSED AMS PROJECT DIRECTOR, WE NOTE THAT THIS WAS APPARENTLY VIEWED BY MR. SHTULMAN AS A RELATIVELY INSIGNIFICANT MATTER AS HE OBSERVED THAT WHILE ONE OF THE AGENCY STAFF MEMBERS DID NOT GET ALONG WITH THIS INDIVIDUAL, TWO OTHER STAFF MEMBERS WERE "QUITE PLEASED WITH HIM." WHILE THE RECORD DOES NOT REFLECT WHETHER THIS MATTER WAS CONSIDERED BY THE REVIEW PANEL, WE DO NOT VIEW THIS FACTOR AS HAVING A SIGNIFICANT BEARING ON THE VALIDITY OF THE AWARD.

ACCORDINGLY, THERE IS NO BASIS FOR OUR OFFICE TO DISTURB THE AWARD.