B-181539, DEC 13, 1974

B-181539: Dec 13, 1974

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WHERE COMPREHENSIVE TECHNICAL EVALUATION WAS MADE IN ACCORDANCE WITH CRITERIA SET FORTH IN REQUEST FOR PROPOSALS FOR THE OPERATION OF JOB CORPS CENTER. ABSENT SHOWING THAT EVALUATION WAS CONDUCTED IN BAD FAITH. NO EVIDENCE COULD BE FOUND TO SUPPORT OFFEROR'S ALLEGATION THAT EVALUATION WAS BASED ON CRITERIA OTHER THAN THOSE PUBLISHED IN THE RFP OR THAT FACTORS USED FOR THE EVALUATION WERE NOT EQUALLY APPLIED TO BOTH PROPOSALS . 2. AFTER EVALUATION PANEL'S INDIVIDUAL SCORE SHEETS WERE PREPARED. BEFORE SUMMARY OF EVALUATION WAS PROVIDED CONTRACTING OFFICER. EVALUATION PROCEDURE WAS DEFICIENT IN THAT IT DID NOT STATE THE RATIONALE FOR LEAVING SCORE UNCHANGED AFTER CONCEPT WAS DELETED. SINCE SUCCESSFUL OFFEROR'S SELECTION IS SUPPORTED BY REMAINING SCORES.

B-181539, DEC 13, 1974

1. WHERE COMPREHENSIVE TECHNICAL EVALUATION WAS MADE IN ACCORDANCE WITH CRITERIA SET FORTH IN REQUEST FOR PROPOSALS FOR THE OPERATION OF JOB CORPS CENTER, ABSENT SHOWING THAT EVALUATION WAS CONDUCTED IN BAD FAITH, IT CANNOT BE CONSIDERED ARBITRARY OR CAPRICIOUS. FURTHERMORE, NO EVIDENCE COULD BE FOUND TO SUPPORT OFFEROR'S ALLEGATION THAT EVALUATION WAS BASED ON CRITERIA OTHER THAN THOSE PUBLISHED IN THE RFP OR THAT FACTORS USED FOR THE EVALUATION WERE NOT EQUALLY APPLIED TO BOTH PROPOSALS . 2. AFTER EVALUATION PANEL'S INDIVIDUAL SCORE SHEETS WERE PREPARED, BUT BEFORE SUMMARY OF EVALUATION WAS PROVIDED CONTRACTING OFFICER, AGENCY DECIDED NOT TO IMPLEMENT ONE CONCEPT IN SUCCESSFUL OFFEROR'S PROPOSAL WHICH PANELISTS GENERALLY FAVORED. EVALUATION PROCEDURE WAS DEFICIENT IN THAT IT DID NOT STATE THE RATIONALE FOR LEAVING SCORE UNCHANGED AFTER CONCEPT WAS DELETED. HOWEVER, SINCE SUCCESSFUL OFFEROR'S SELECTION IS SUPPORTED BY REMAINING SCORES, THE DEFICIENCY IN QUESTION PROVIDES NO BASIS FOR DISTURBING THE AWARD. 3. PROTESTER'S CONTENTION THAT SECTION IN RFP SETTING OUT EVALUATION CRITERIA LACKS SUFFICIENT DETAIL OR EXPLANATION IS UNTIMELY UNDER SECTION 20.2(A) OF GAO'S INTERIM BID PROTEST PROCEDURES, BECAUSE PROTEST BASED UPON ALLEGED IMPROPRIETIES IN SOLICITATION WHICH ARE APPARENT PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS MUST BE FILED PRIOR THERETO.

TRAINING CORPORATION OF AMERICA, INC.:

REQUEST FOR PROPOSALS (RFP) RFP-R7-74-2 WAS ISSUED ON MARCH 15, 1974, BY THE MANPOWER ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR. THE RFP SOLICITED PROPOSALS FOR THE OPERATION OF THE EXCELSIOR SPRINGS JOB CORPS CENTER FOR THE PERIOD JULY 1, 1974 THROUGH JUNE 30, 1976. THE OPERATION OF THE CENTER PROVIDES A COMPREHENSIVE RESIDENTIAL PROGRAM TO PREPARE YOUTH SIXTEEN THROUGH TWENTY-ONE YEARS OF AGE FOR MEANINGFUL EMPLOYMENT AND THE RESPONSIBILITIES OF CITIZENSHIP. PROSPECTIVE OFFERORS WERE ADVISED BY THE RFP THAT A COST REIMBURSEMENT TYPE CONTRACT WAS ANTICIPATED.

PROPOSALS WERE RECEIVED FROM THE INCUMBENT CONTRACTOR, TRAINING CORPORATION OF AMERICA (TCA) AND FROM THE SINGER COMPANY-EDUCATION DIVISION, AND BOTH WERE EVALUATED AND SCORED IN ACCORDANCE WITH THE CRITERIA STATED IN THE RFP BY A PANEL OF SPECIALISTS FAMILIAR WITH MANPOWER PROGRAM ADMINISTRATION. EACH OF THE FIVE PANEL MEMBERS SCORED EACH PROPOSAL ON SIX TECHNICAL CRITERIA, ASSIGNING FOR EACH CRITERION A NUMERICAL WEIGHTING WITHIN A GIVEN RANGE FOR EACH FACTOR. THE SCORES THEN WERE AVERAGED TO SELECT ONE OFFEROR FOR AWARD. THE TECHNICAL CRITERIA AND THE WEIGHT ASSIGNED TO EACH WERE DESCRIBED AS FOLLOWS IN THE RFP:

"A.THE DEGREE TO WHICH THE PROPOSAL DEMONSTRATED UNDERSTANDING OF THE OBJECTIVES OF THE PROGRAM (DESIGN OF PROGRAM) (1 TO 13 POINTS)

"B. RECRUITMENT AND PLACEMENT SUPPORT (1 TO 12 POINTS)

"C. EDUCATION AND TRAINING SERVICES (1 TO 30 POINTS)

"D. RESIDENTIAL LIVING (1 TO 20 POINTS)

"E. CORPS MENBER AND ADMINISTRATIVE SUPPORT

SERVICES (1 TO 15 POINTS)

"F. THE RELATIVE PRICE ADVANTAGE

TO THE GOVERNMENT (1 TO 10 POINTS)"

PART II, THE BUSINESS MANAGEMENT PROPOSAL, INCLUDED A PROJECTED BUDGET ALONG WITH A NARRATIVE EXPLANATION SHOWING THE MANNER IN WHICH ITS COMPONENTS WERE DETERMINED. PART III, THE TRANSITION PROPOSAL, CONTAINED BUDGET INFORMATION AND AN EXPLANATION OF COSTS EXPECTED TO BE INCURRED AS A POSSIBLE RESULT OF A CONTRACT AWARD TO A NEW CONTRACTOR WHO WOULD BE TAKING OVER AN EXISTING OPERATING CENTER. PARTS II AND III WERE REVIEWED INDEPENDENTLY OF PART I SO THAT THE EVALUATION OF PART I COULD BE MADE SOLELY ON THE BASIS OF TECHNICAL MERIT.

THE CONTRACT WAS AWARDED TO THE SINGER COMPANY-EDUCATION DIVISION (SINGER), THE FIRM THAT HAD ATTAINED THE HIGHEST SCORE ON THE TECHNICAL ANALYSIS AND HAD PROPOSED THE LOWEST CONTRACT PRICE.

TCA PROTESTED THE DEPARTMENT OF LABOR DECISION TO AWARD THE CONTRACT TO SINGER, ASSERTING THAT THE TECHNICAL EVALUATION WAS ARBITRARY AND UNREASONABLE, AND THAT CRITERIA OTHER THAN THOSE PUBLISHED IN THE RFP WERE USED IN THE FINAL AWARD DECISION. FURTHERMORE, TCA QUESTIONS WHETHER THE COMPONENT FACTORS USED FOR THE EVALUATION WERE EQUALLY APPLIED TO BOTH PROPOSALS. FOR THE REASONS STATED BELOW WE MUST DENY THE PROTEST.

THE DEPARTMENT OF LABOR SET FORTH IN ITS REPORT TO OUR OFFICE THE FINDINGS UPON WHICH THE EVALUATORS' SCORES WERE BASED. ALTHOUGH TCA'S PROPOSAL WAS REGARDED BY THE EVALUATORS AS MEETING THE BASIC RFP REQUIREMENTS, ITS SCORES WERE REDUCED TO REFLECT WHAT THE EVALUATORS THOUGHT WERE WEAKNESSES IN THE PROPOSAL. TCA HAS DISCUSSED IN DETAIL THE EVALUATORS' NEGATIVE COMMENTS, WHICH IT GENERALLY REGARDS AS BASELESS. HAVE READ THE PROPOSALS IN LIGHT OF EACH PARTY'S COMMENTS, WHICH WE HAVE NOT RECITED IN DETAIL FOR NO USEFUL PURPOSE WOULD BE SERVED THEREBY.

INITIALLY, WE SHOULD POINT OUT THAT IT IS NOT OUR FUNCTION TO EVALUATE THESE PROPOSALS IN ORDER TO DETERMINE WHICH PROPOSAL SHOULD HAVE BEEN SELECTED FOR THE AWARD. SOURCE SELECTION IS THE RESPONSIBILITY OF THE CONTRACTING AGENCY SINCE IT MUST BEAR THE MAJOR CRITICISM FOR ANY DIFFICULTIES OR EXPENSES EXPERIENCED BY REASON OF A DEFECTIVE ANALYSIS. THEREFORE, IT IS OUR VIEW THAT THE ADMINISTRATIVE JUDGMENT IN THESE MATTERS IS ENTITLED TO GREAT WEIGHT AND SHOULD NOT BE DISTURBED ABSENT A CLEAR SHOWING THAT THE AGENCY ACTED ARBITRARILY OR UNREASONABLY. 52 COMP. GEN. 198, 205 (1972); B-176077(5), JANUARY 26, 1973. WHILE IT IS CLEAR THAT THERE IS STRONG DISAGREEMENT BETWEEN TCA AND MANPOWER AS TO THE VALIDITY OF THE ALLEGED DEFICIENCIES RAISED BY THE EVALUATION PANEL, IT IS GENERALLY NOT THE FUNCTION OF OUR OFFICE TO RESOLVE TECHNICAL DISPUTES OF THIS NATURE. 46 COMP. GEN. 606, 609 (1967) AND B-167508, DECEMBER 8, 1969.

THE RECORD INDICATES THAT A COMPREHENSIVE TECHNICAL EVALUATION OF PROPOSALS WAS MADE IN ACCORDANCE WITH THE CRITERIA SET FORTH IN PART II OF THE RFP. EACH MEMBER OF THE EVALUATION PANEL NUMERICALLY RATED EACH PROPOSAL ON THE FIVE GENERAL EVALUATION FACTORS SET FORTH IN THE RFP OTHER THAN PRICE. WHEN THESE RATINGS WERE AVERAGED, SINGER SCORED HIGHER THAN TCA IN FOUR AREAS WHILE IN ONE INSTANCE THE TWO OFFERORS RECEIVED IDENTICAL SCORES. THE NARRATIVE COMMENTS MADE BY EACH MEMBER OF THE EVALUATION PANEL PROVIDED HIS OR HER OPINION OF THE STRENGTHS AND WEAKNESSES OF EACH PROPOSAL AND SUGGESTED AREAS FOR DISCUSSION DURING NEGOTIATION. AS FINALLY COMPUTED, BOTH THE SINGER AND TCA PROPOSALS WERE RATED TECHNICALLY ACCEPTABLE, ALTHOUGH SINGER'S PROPOSAL WAS SCORED APPROXIMATELY 12 PERCENT HIGHER THAN THE TCA PROPOSAL. WE DO NOT FIND ANYTHING IN THE RECORD WHICH SUGGESTS THAT THE EVALUATION WAS BASED ON CRITERIA OTHER THAN THOSE PUBLISHED IN THE RFP OR THAT THE FACTORS USED FOR THE EVALUATION WERE NOT EQUALLY APPLIED TO BOTH PROPOSALS.

THE ONLY DEFICIENCY WHICH WE OBSERVED IN THE SELECTION PROCEDURE RELATED TO THE EVALUATION OF SINGER'S PROPOSAL UNDER CRITERION A, "DESIGN OF PROGRAM." THE RFP STATED THAT THE "CHILD CARE" VOCATIONAL CLUSTER WAS BEING DELETED FROM THE CENTER'S PROGRAM, AND OFFERORS WERE GIVEN THE OPTION OF DISTRIBUTING THOSE TRAINING SLOTS AMONG THE REMAINING OFFERINGS OR SUBSTITUTING A NEW PROGRAM WITH A LIKE NUMBER OF SLOTS. THE PROTESTER CHOSE THE FIRST OPTION. SINGER PROPOSED TO INVEST APPROXIMATELY $100,000 TO EQUIP AND SUPERVISE A SMALL PRODUCTION SHOP, LOCATED ON OR NEAR THE CENTER, WHERE CORPS WOMEN WOULD ASSEMBLE A COMMERCIALLY SALABLE PRODUCT AS PART OF AN ELECTRO-MECHANICAL ASSEMBLY CLUSTER SUBSTITUTED FOR THE "CHILD CARE" CLUSTER.

WITH ONE EXCEPTION, THE EVALUATORS COMMENTED FAVORABLY UPON THIS ASPECT OF SINGER'S PROPOSAL WHICH ACHIEVED A TOTAL SCORE OF 56 UNDER CRITERION A. WE UNDERSTAND, HOWEVER, THAT AFTER THE EVALUATORS' INDIVIDUAL SCORE SHEETS WERE PREPARED, THE AGENCY HAD DOUBTS CONCERNING THE LEGALITY OF SINGER'S ASSEMBLY PLANT CONCEPT WHICH PRECLUDED ITS IMPLEMENTATION. THIS IS INDICATED BY THE AGENCY'S "SUMMARY OF INDIVIDUAL OFFEROR PROPOSAL RATINGS," WHICH STATES AS PART OF THE RATIONALE FOR SINGER'S SCORE OF 56 UNDER CRITERIA A: "WILLING TO MAKE CORPORATE FINANCIAL COMMITMENT EVEN THOUGH IT IS NOT APPLICABLE."

IT THEREFORE APPEARS THAT SINGER'S NUMERICAL SCORE REMAINED UNCHANGED EVEN THOUGH A CONCEPT IN ITS PROPOSAL WHICH ELICITED FAVORABLE NARRATIVE COMMENTS FROM THE EVALUATORS WAS NOT TO BE IMPLEMENTED. WE DO NOT KNOW WHAT PORTION, IF ANY, OF THE SCORE WAS ATTRIBUTABLE TO THE ASSEMBLY PLANT CONCEPT, THEREFORE, THE SCORE WOULD NOT NECESSARILY BE ADJUSTED DOWNWARD WHEN THE CONCEPT WAS NOT IMPLEMENTED. THE DEFICIENCY WHICH WE FIND IS THAT THE EVALUATION PANEL DID NOT PROVIDE IN ITS RECOMMENDATION A RATIONALE FOR LEAVING THE SCORE UNCHANGED.

WE DO NOT BELIEVE, HOWEVER, THAT THIS DEFICIENCY PROVIDES A BASIS FOR DISTURBING SINGER'S CONTRACT. SINCE SINGER'S SCORE ON ONE OTHER TECHNICAL CRITERION WAS EQUAL TO THE PROTESTER'S; SINGER'S SCORES ON THE REMAINING THREE TECHNICAL CRITERIA EXCEEDED THE PROTESTER'S; AND SINGER OFFERED THE LOWEST COST PROPOSAL, WE CANNOT CONCLUDE THAT THE DECISION TO AWARD THE CONTRACT TO SINGER WAS UNREASONABLE.

FINALLY, TCA PROTESTS THE LACK OF DETAIL OR EXPLANATION PROVIDED BY PART II OF THE RFP, "CRITERIA FOR EVALUATING PROPOSALS." WE BELIEVE THAT TCA'S CONTENTIONS CONCERNING THE ADEQUACY OF THE DETAILS PROVIDED BY THE EVALUATION CRITERIA SECTION OF THE RFP ARE UNTIMELY UNDER SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS SINCE THE ALLEGED DEFICIENCY WAS APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS. ALSO, SEE 50 COMP. GEN. 565, 576 (1971); B-177278, APRIL 19, 1973.

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.