B-204990, JAN 19, 1982

B-204990: Jan 19, 1982

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30 PERCENT PRICE EVALUATION FORMULA IN HIS FINAL EVALUATION WAS CONTRARY TO THE STATEMENT OF THE EVALUATION CLAUSE THAT PRICE WOULD NOT BE WEIGHTED. THE EVALUATION WAS NONETHELESS REASONABLE BECAUSE THE CLAUSE ALSO INDICATED THAT AWARD WOULD BE MADE TO OTHER THAN THE LOWEST PRICED OFFEROR ONLY IF A HIGHER PRICED PROPOSAL WAS RATED SIGNIFICANTLY HIGHER IN QUALITY. THAT WAS NOT THE CASE HERE. THE PROTEST IS DENIED. THE SOLICITATION WAS ISSUED ON JULY 24. SUBSECTIONS 3 AND 4 OF SECTION "D" STATED THAT PRICE WILL BE OF LESSER IMPORTANCE THAN TECHNICAL FACTORS AND THAT AN AWARD "MAY OR MAY NOT BE MADE TO THE OFFEROR WITH THE LOWEST PRICE PROPOSAL. SINCE QUALITY PERFORMANCE IS CONSIDERED VITAL TO SUCCESSFUL COMPETITION.

B-204990, JAN 19, 1982

DIGEST: WHILE THE CONTRACTING OFFICER'S USE OF A 70-PERCENT TECHNICAL, 30 PERCENT PRICE EVALUATION FORMULA IN HIS FINAL EVALUATION WAS CONTRARY TO THE STATEMENT OF THE EVALUATION CLAUSE THAT PRICE WOULD NOT BE WEIGHTED, THE EVALUATION WAS NONETHELESS REASONABLE BECAUSE THE CLAUSE ALSO INDICATED THAT AWARD WOULD BE MADE TO OTHER THAN THE LOWEST PRICED OFFEROR ONLY IF A HIGHER PRICED PROPOSAL WAS RATED SIGNIFICANTLY HIGHER IN QUALITY, AND THAT WAS NOT THE CASE HERE.

ADCOCK AND ASSOCIATES, INC.:

ADCOCK AND ASSOCIATES, INC. (ADCOCK), PROTESTS THE AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) NO. YA-553-RFPI-54 TO THE LOWEST PRICED OFFEROR. THE SOLICITATION, A SMALL BUSINESS SET-ASIDE, SOLICITED OFFERS FOR A FIRM, FIXED-PRICE, NEGOTIATED CONTRACT FOR THE GATHERING OF SECONDARY ECONOMIC DATA AT THE CHACO/SAN JUAN COAL BASIN, BY THE DEPARTMENT OF THE INTERIOR, BUREAU OF LAND MANAGEMENT.

ADCOCK ALLEGES THAT THE EVALUATION METHOD USED IN AWARDING THE CONTRACT DID NOT COMPLY WITH THAT SET FORTH IN THE SOLICITATION. FOR THE REASONS STATED BELOW, THE PROTEST IS DENIED.

THE SOLICITATION WAS ISSUED ON JULY 24, 1981. THE DEPARTMENT OF THE INTERIOR RECEIVED TWO OFFERS BY THE CLOSING DATE OF AUGUST 24, 1981 - ONE FROM ADCOCK AND ONE FROM REGIONAL ANALYTICS (REGIONAL).

SECTION "D" OF THE SOLICITATION SET FORTH THE EVALUATION AND AWARD FACTORS, WITH THE RELATIVE IMPORTANCE OF EACH TECHNICAL FACTOR INDICATED BY POINT TOTALS AND A STATEMENT TO THE EFFECT THAT PRICE WOULD NOT BE A WEIGHTED FACTOR. SUBSECTIONS 3 AND 4 OF SECTION "D" STATED THAT PRICE WILL BE OF LESSER IMPORTANCE THAN TECHNICAL FACTORS AND THAT AN AWARD "MAY OR MAY NOT BE MADE TO THE OFFEROR WITH THE LOWEST PRICE PROPOSAL. SINCE QUALITY PERFORMANCE IS CONSIDERED VITAL TO SUCCESSFUL COMPETITION, THE GOVERNMENT RESERVES THE RIGHT TO AWARD A CONTRACT ON OTHER THAN THE LOWEST PRICE BASIS IF A HIGHER PRICED PROPOSAL IS RATED SIGNIFICANTLY HIGHER IN QUALITY."

THE TECHNICAL PROPOSAL EVALUATION COMMITTEE (TPEC) EVALUATED THE TECHNICAL PROPOSALS AND, AFTER ALSO EVALUATING RESPONSES TO CLARIFICATION QUESTIONS, SENT ITS FINAL SCORES TO THE CONTRACTING OFFICER ON SEPTEMBER 15, 1981. ADCOCK SCORED 92 POINTS, COMPARED TO REGIONAL'S SCORE OF 82.67 POINTS. THE TPEC FINAL REPORT RECOMMENDED AWARD OF THE CONTRACT TO ADCOCK IF IT REDUCED ITS PRICE IN ITS BEST AND FINAL OFFER.

IN THE BEST AND FINAL OFFERS, ADCOCK SUBMITTED A PRICE OF $37,500 AND REGIONAL SUBMITTED A PRICE OF $22,975. THE CONTRACTING OFFICER STATES THAT HE DID NOT CONSIDER ADCOCK'S FINAL TECHNICAL RATING SIGNIFICANTLY HIGH TO AWARD AT A PRICE $14,525 ABOVE REGIONAL'S PRICE WITHOUT FURTHER EVALUATION. THEREFORE, USING A 70-PERCENT TECHNICAL AND A 30-PERCENT PRICE EVALUATION FORMULA, HE ASSIGNED 100 POINTS TO THE LOWEST PRICED OFFER (REGIONAL) AND 61 POINTS TO THE HIGHEST PRICED OFFER (ADCOCK). THEN COMBINED THE 70-PERCENT TECHNICAL PRICE FACTOR WITH THE PRICE SCORES. AS A RESULT, ADCOCK RECEIVED 82.21 POINTS AND REGIONAL RECEIVED 87.82 POINTS. THE DEPARTMENT OF THE INTERIOR AWARDED THE CONTRACT TO REGIONAL ON THIS BASIS.

ADCOCK HAS PROTESTED THE AWARD TO REGIONAL CONTENDING THAT IT WAS ENTITLED TO THE AWARD ON THE BASIS OF ITS HIGHER TECHNICAL SCORE AND THAT IT WAS IMPROPER TO USE THE EVALUATION FORMULA EMPLOYED BY THE CONTRACTING OFFICER SINCE IT WAS NOT STATED IN THE SOLICITATION.

THE EVALUATION OF PROPOSALS IS THE FUNCTION OF THE CONTRACTING AGENCIES. IN A NEGOTIATED PROCUREMENT, AN AGENCY'S DETERMINATIONS ARE ENTITLED TO GREAT WEIGHT. UNLESS AN AGENCY'S EVALUATION RESULTS ARE CLEARLY SHOWN TO HAVE NO REASONABLE BASIS, THEY WILL BE UPHELD. SEE JOSEPH LEGAT ARCHITECTS, B-187160, DECEMBER 13, 1977, 77-2 CPD 458, AND DECISIONS CITED THEREIN.

CLEARLY, THE REQUEST FOR PROPOSALS MUST SET FORTH THE EVALUATION FACTORS AND THE RELATIVE IMPORTANCE OF EACH. 51 COMP.GEN. 272 (1971); AUTOMATED SYSTEMS CORPORATION, B-184835, FEBRUARY 23, 1976, 76-1 CPD 124. AND THE CONTRACTING OFFICER'S DECISION SHOULD BE CONSISTENT WITH THE EVALUATION FACTORS. EPSCO, INCORPORATED, B-183816, NOVEMBER 21, 1975, 75-2 CPD 338.

IN THE CASE BEFORE US, THE EVALUATION FACTORS AND THEIR ASSIGNED POINTS WERE SET OUT IN THE SOLICITATION. SINCE THE EVALUATION CLAUSE OF THE SOLICITATION EXPLICITLY EXCLUDED THE WEIGHTING OF PRICE, WE AGREE WITH ADCOCK THAT THE USE OF THE 70/30 FORMULA WAS CONTRARY TO THIS STATEMENT OF THE CLAUSE. HOWEVER, AS NOTED ABOVE, THIS PROVISION ALSO INDICATED THAT AWARD WOULD BE MADE TO OTHER THAN THE LOWEST PRICED OFFEROR ONLY IF A HIGHER PRICED PROPOSAL WAS RATED "SIGNIFICANTLY HIGHER IN QUALITY." CLEARLY, THEN, THE CONTRACTING OFFICER ACTED WITHIN HIS DISCRETION IN AWARDING THE CONTRACT TO A LOWER PRICED OFFEROR WHERE HE FOUND THE TECHNICAL RATING OF ADCOCK NOT SO SIGNIFICANTLY HIGH AS TO JUSTIFY AWARD AT A PRICE $14,525 ABOVE THE LOW OFFER.

WE DENY THE PROTEST.