B-215638.2, OCT 24, 1984, 84-2 CPD 461

B-215638.2, OCT 24, 1984, 84-2 CPD 461

CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - EVALUATION - TECHNICAL ACCEPTABILITY - ADMINISTRATIVE DETERMINATION DIGEST: 1. AWARD TO FIRM WITH THE BEST TECHNICAL PROPOSAL AND OVERALL LOWEST WEIGHTED COST WHEN TECHNICAL CONSIDERATIONS ARE FACTORED IN WAS NOT IMPROPER SIMPLY BECAUSE ANOTHER FIRM OFFERED A LOWER PRICE, SINCE AGENCY EVALUATION WAS REASONABLE AND RFP INDICATED THAT AWARD WOULD BE MADE BASED ON LOWEST WEIGHTED COST RATHER THAN ON LOWEST OFFERED COST. CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - EVALUATION - EVALUATORS - SELECTION 2. SELECTION OF EVALUATORS IS WITHIN THE CONTRACTING AGENCY'S DISCRETION AND GAO WILL NOT OBJECT IN THE ABSENCE OF EVIDENCE OF FRAUD, BAD FAITH, CONFLICT OF INTEREST OR ACTUAL BIAS.

HAWORTH, INC.:

HAWORTH, INC. (HAWORTH), PROTESTS THE AWARD OF A CONTRACT TO THE AMERICAN SEATING COMPANY (ASC) UNDER REQUEST FOR PROPOSALS (RFP) NO. 84A-291 ISSUED BY THE CENTRAL INTELLIGENCE AGENCY (CIA) FOR FURNITURE. HAWORTH CONTENDS THAT THE AWARD TO ASC CANNOT BE SUPPORTED IN VIEW OF THE FACT THAT HAWORTH'S PRICE WAS 9.75 PERCENT LOWER THAN ASC'S. IN ADDITION, HAWORTH COMPLAINS THAT ALLIED MAINTENANCE COMPANY, A FIRM HIRED BY THE CIA TO ASSIST THE AGENCY IN THE EVALUATION.

WE DENY THE PROTEST.

THE RFP STATED THAT AWARD WOULD BE MADE TO THAT RESPONSIBLE OFFEROR WHOSE OFFER WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, COST AND OTHER FACTORS CONSIDERED. THE EVALUATION CRITERIA LISTED 15 SPECIFIC CATEGORIES WHICH WOULD BE EVALUATED BY THE TECHNICAL EVALUATION TEAM. UNDER THE EVALUATION SCHEME, EACH CATEGORY RECEIVED A SCORE BETWEEN ZERO AND TWO, WHICH WAS THEN MULTIPLIED BY THE WEIGHT WHICH WAS ASSIGNED FOR THAT PARTICULAR CATEGORY. THE WEIGHTED POINT SCORES WERE TOTALED AND THAT FIGURE BECAME THE PERCENTAGE WHICH WAS UTILIZED BY THE CIA TO ADJUST EACH OFFEROR'S PRICE PROPOSAL IN ORDER TO ARRIVE AT A WEIGHTED COST FOR EACH PROPOSAL. THE RFP INDICATED THAT AWARD WOULD BE MADE TO THE OFFEROR WHOSE WEIGHTED COST WAS DETERMINED TO BE LOW.

WITH REGARD TO THE PRICE DIFFERENCE BETWEEN PROPOSALS, THERE IS NO REQUIREMENT IN A NEGOTIATED PROCUREMENT THAT THE AWARD BE MADE ON THE BASIS OF LOWEST PRICE OR COST TO THE GOVERNMENT. BLURTON, BANKS & ASSOCIATES, INC., B-211702, OCT. 12, 1983, 83-2 CPD PARA. 454. RATHER, THE PROCURING AGENCY HAS THE DISCRETION TO SELECT A MORE HIGHLY RATED TECHNICAL PROPOSAL IF DOING SO IS IN THE GOVERNMENT'S BEST INTERESTS AND IS CONSISTENT WITH THE EVALUATION SCHEME SET FORTH IN THE SOLICITATION. ELECTRONIC DATA SYSTEMS FEDERAL CORPORATION, B-207311, MAR. 16, 1983, 83-1 CPD PARA. 264.

HERE, ALTHOUGH HAWORTH'S PRICE WAS LOWER THAN ASC'S, THE RECORD REFLECTS THAT ASC'S PROPOSAL RECEIVED A SIGNIFICANTLY HIGHER TECHNICAL SCORE, WHICH UNDER THE EVALUATION SCHEME EMPLOYED BY THE CIA MORE THAN OFFSET THE PRICE DIFFERENCE BETWEEN THE TWO PROPOSALS. IN THAT CONNECTION, IT IS NEITHER OUR FUNCTION NOR PRACTICE TO CONDUCT A DE NOVO REVIEW OF TECHNICAL PROPOSALS AND MAKE AN INDEPENDENT DETERMINATION OF THEIR ACCEPTABILITY OR RELATIVE MERIT. THE EVALUATION OF PROPOSALS IS THE FUNCTION OF THE PROCURING AGENCY REQUIRING THE EXERCISE OF INFORMED JUDGMENT AND DISCRETION. OUR REVIEW IS LIMITED TO EXAMINING WHETHER THE CONTRACTING AGENCY'S EVALUATION WAS FAIR AND REASONABLE AND CONSISTENT WITH THE STATED EVALUATION CRITERIA. ALCOA MARINE CORPORATION, B-196721, MAY 9, 1980, 80-1 CPD PARA. 335. FROM OUR IN CAMERA REVIEW IN THIS CASE, WE CONCLUDE THAT THE CIA EVALUATION HAD A REASONABLE BASIS AND WAS IN CONFORMITY WITH THE EVALUATION PROVISIONS OF THE RFP.

WITH RESPECT TO HAWORTH'S ALLEGATION THAT THE CONSULTANT FIRM HIRED BY THE CIA TO ASSIST IN EVALUATING PROPOSALS WAS NOT QUALIFIED OR MAY HAVE UNDULY INFLUENCED THE EVALUATION, WE NOTE THAT THE COMPOSITION OF A TECHNICAL EVALUATION PANEL IS WITHIN THE DISCRETION OF THE CONTRACTING AGENCY, AND WE WILL NOT OBJECT IN THE ABSENCE OF EVIDENCE OF FRAUD, BAD FAITH, CONFLICT OF INTEREST OR ACTUAL BIAS. CROWN POINT COACHWORKS AND R&D COMPOSITE STRUCTURES; NORTH AMERICAN RACING COMPANY, B-208694; B-208694.2, SEPT. 29, 1983, 83-2 CPD PARA. 386. ADDITIONALLY, IT IS THE PROTESTER'S RESPONSIBILITY TO PRESENT EVIDENCE SUFFICIENT TO AFFIRMATIVELY ESTABLISH ITS POSITION. BLURTON, BANKS & ASSOCIATES, INC., B-211702, SUPRA. HAWORTH HAS PRESENTED NO PROBATIVE EVIDENCE TO SUPPORT ITS ALLEGATION IN THIS RESPECT AND WE THEREFORE FIND THAT HAWORTH HAS FAILED TO MEET ITS BURDEN OF PROOF.

FINALLY, HAWORTH COMPLAINS THAT THE CIA'S DEBRIEFING WAS INADEQUATE SINCE THE CIA REFUSED TO RELEASE EITHER HAWORTH'S OR ASC'S TECHNICAL SCORES. HOWEVER, UNDER DEFENSE ACQUISITION REGULATION (DAR) SEC. 3 508.4(C), REPRINTED IN 32 C.F.R. PTS. 1-39 (1983), AGENCIES ARE ONLY REQUIRED TO INFORM UNSUCCESSFUL OFFERORS OF THE AREAS IN WHICH THEIR TECHNICAL PROPOSALS WERE WEAK OR DEFICIENT. SOUTHWEST MARINE, INC., B-210101.2, JULY 11, 1983, 83-2 CPD PARA. 72. THERE IS NO REQUIREMENT, UNDER THIS PROVISION, THAT THE EVALUATION SCORES OF EACH OFFEROR BE RELEASED. IN ANY EVENT, THE CONDUCT OF THE DEBRIEFING CONCERNS ONLY AN AFTER-THE-FACT EXPLANATION OF THE SELECTION, NOT THE VALIDITY OF THE SELECTION ITSELF. THE FARALLONES INSTITUTE RURAL CENTER, B-211632, NOV. 8, 1983, 83-2 CPD PARA. 540.