B-216508, FEB 7, 1985, 85-1 CPD 156

B-216508: Feb 7, 1985

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GAO WILL NOT OBJECT TO THE AWARD OF A CONTRACT UNDER A REQUEST FOR PROPOSALS (RFP) TO THE HIGHER PRICED OFFEROR RECEIVING A HIGHER TECHNICAL EVALUATION IF THE EVALUATION IS REASONABLE AND IN ACCORDANCE WITH THE EVALUATION CRITERIA IN THE RFP. IS TO PURSUE THE DISCLOSURE REMEDIES PROVIDED BY THE FREEDOM OF INFORMATION ACT. CERTIFICATE OF COMPETENCY (COC) PROCEDURES GENERALLY DO NOT APPLY WHEN A SMALL BUSINESS FIRM'S OFFER IN A NEGOTIATED PROCUREMENT IS FOUND TECHNICALLY DEFICIENT RELATIVE TO OTHER OFFERS. SINCE THE COC PROGRAM IS RESERVED FOR REVIEWING NONRESPONSIBILITY MATTERS. PROTEST THAT PROCUREMENT SHOULD HAVE BEEN FORMALLY ADVERTISED INSTEAD OF NEGOTIATED IS UNTIMELY WHERE FILED AFTER THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS.

B-216508, FEB 7, 1985, 85-1 CPD 156

CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - EVALUATION - TECHNICAL ACCEPTABILITY - SCOPE OF GAO REVIEW DIGESTS: 1. GAO WILL NOT OBJECT TO THE AWARD OF A CONTRACT UNDER A REQUEST FOR PROPOSALS (RFP) TO THE HIGHER PRICED OFFEROR RECEIVING A HIGHER TECHNICAL EVALUATION IF THE EVALUATION IS REASONABLE AND IN ACCORDANCE WITH THE EVALUATION CRITERIA IN THE RFP. FREEDOM OF INFORMATION ACT - DISCLOSURE REQUESTS - RECORDS OF AGENCIES, ETC. OTHER THAN GAO - AUTHORITY OF GAO TO REQUIRE DISCLOSURE 2. GAO HAS NO AUTHORITY TO DETERMINE, IN CONNECTION WITH A BID PROTEST, WHAT INFORMATION MUST BE DISCLOSED BY GOVERNMENT AGENCIES. THE PROTESTER'S RECOURSE, IF IT BELIEVES INFORMATION HAS BEEN WITHHELD IMPROPERLY, IS TO PURSUE THE DISCLOSURE REMEDIES PROVIDED BY THE FREEDOM OF INFORMATION ACT. CONTRACTS - SMALL BUSINESS CONCERNS - AWARDS - SMALL BUSINESS ADMINISTRATION'S AUTHORITY 3. CERTIFICATE OF COMPETENCY (COC) PROCEDURES GENERALLY DO NOT APPLY WHEN A SMALL BUSINESS FIRM'S OFFER IN A NEGOTIATED PROCUREMENT IS FOUND TECHNICALLY DEFICIENT RELATIVE TO OTHER OFFERS, SINCE THE COC PROGRAM IS RESERVED FOR REVIEWING NONRESPONSIBILITY MATTERS, NOT THE COMPARATIVE EVALUATION ON TECHNICAL PROPOSALS. CONTRACTS - PROTESTS - GENERAL ACCOUNTING - OFFICE PROCEDURES - TIMELINESS OF PROTEST - SOLICITATION IMPROPRIETIES - APPARENT PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS 4. PROTEST THAT PROCUREMENT SHOULD HAVE BEEN FORMALLY ADVERTISED INSTEAD OF NEGOTIATED IS UNTIMELY WHERE FILED AFTER THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS.

C.M.P., INC.:

C.M.P., INC. (CMP), PROTESTS THE AWARD OF A CONTRACT TO VION CORP. UNDER REQUEST FOR PROPOSALS (RFP) NO. 84-15-07, ISSUED BY THE DEPARTMENT OF ENERGY'S (DOE) MANAGEMENT AND OPERATING CONTRACTOR FOR THE ARGONNE NATIONAL LABORATORY FOR MAINTENANCE SERVICES ON DISK EQUIPMENT. CMP ALLEGES THAT IT IS ENTITLED TO THE AWARD BECAUSE IT WAS FOUND TECHNICALLY ACCEPTABLE AND OFFERED THE LOWEST PRICE FOR THE FIRST CONTRACT YEAR AND FOR EACH OF THE TWO OPTION YEARS. CMP ALSO ARGUES THAT TO THE EXTEND THERE WERE ANY TECHNICAL WEAKNESSES PERCEIVED IN ITS PROPOSAL, THEY SHOULD HAVE BEEN REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR EVALUATION UNDER THE CERTIFICATE OF COMPETENCY (COC) PROGRAM. FINALLY, CMP ARGUES THAT THE PROCUREMENT SHOULD HAVE BEEN CONDUCTED USING FORMALLY ADVERTISED PROCEDURES RATHER THAN NEGOTIATED ONES.

WE DENY THE PROTEST IN PART AND DISMISS IT IN PART.

THE RFP PROVIDED THAT AWARD WOULD BE MADE TO THE RESPONSIVE, RESPONSIBLE OFFEROR PROPOSING THE LOWEST OVERALL COST TO THE LABORATORY AS DETERMINED THROUGH A COST/BENEFIT EVALUATION. ACCORDING TO THE RFP, AFTER TECHNICAL POINTS WERE AWARDED FOR THE SPECIFIED TECHNICAL FACTORS -- PREVIOUS PERFORMANCE, GUARANTEE OF PERFORMANCE, AND REMEDIAL AND PREVENTIVE MAINTENANCE SERVICE-- THE LABORATORY WOULD ASSIGN DOLLAR VALUES TO THOSE POINTS BASED ON THE ESTIMATED 3-YEAR COST. THE COST/BENEFIT ANALYSIS WOULD BE COMPLETED BY SUBTRACTING AN OFFEROR'S ASSIGNED DOLLAR VALUES FROM THE OFFEROR'S 3-YEAR PRICE, WITH THE LOWEST RESULT REPRESENTING THE LOWEST OVERALL COST.

VION'S TECHNICAL PROPOSAL WAS RATED THE HIGHEST OF THE SIX ACCEPTABLE ONES RECEIVED AND CMP'S THE LOWEST. THUS, WHILE CMP OFFERED A LOWER AGGREGATE PRICE THAN DID VION, ON THE BASIS OF THE COST/BENEFIT ANALYSIS, VION'S OFFER WAS FOUND TO BE THE MORE ADVANTAGEOUS. (CMP'S WAS RATES THIRD.)

IN A NEGOTIATED PROCUREMENT, AN AGENCY MAY AWARD A CONTRACT TO AN OFFEROR WITH A HIGHER TECHNICAL RATING THAN OTHER FIRMS EVEN THOUGH THE OFFEROR'S PROPOSAL IS NOT THE LOWEST COST ONE IF THE AGENCY DETERMINES THAT THE TECHNICAL DIFFERENCE SUFFICIENTLY OUTWEIGHS THE COST DIFFERENCE, AND WE WILL NOT OBJECT TO THE AWARD AS LONG AS THE DECISION IS REASONABLE AND IN ACCORDANCE WITH THE STATED EVALUATION CRITERIA. NATIONAL DESIGNERS, INC., B-214032, JUNE 18, 1984, 84-1 CPD PARA. 637.

OUR IN CAMERA REVIEW OF THE EVALUATION MATERIALS (AS DISCUSSED BELOW, THEY HAVE NOT BEEN RELEASED TO CMP) SHOWS THAT THE EVALUATION WAS PERFORMED IN ACCORDANCE WITH THE CRITERIA SET FORTH IN THE RFP; THAT THE COST/BENEFIT ANALYSIS WAS CONDUCTED IN THE MANNER DESCRIBED TO OFFERORS IN THE SOLICITATION; AND THAT THE LABORATORY SELECTED THE OFFER WHICH, BASED ON THE COST/BENEFIT ANALYSIS, REPRESENTED THE LOWEST OVERALL COST. THE FACT THAT CMP'S OFFERED PRICE WAS LESS THAN VION'S BEFORE THE ANALYSIS WAS CONDUCTED PROVIDES NO REASON TO OBJECT TO THE AWARD, SINCE THE SELECTION BASIS HAD TO BE THE SAME AS THAT ON WHICH THE COMPETITION WAS CONDUCTED. SEE NATIONAL DESIGNERS, INC., B-214032, SUPRA.

CMP COMPLAINS THAT IT HAS NOT BEEN PROVIDED TECHNICAL AND COST EVALUATION MATERIALS THAT DOE CONSIDERS PRIVILEGED INFORMATION. (DOE DID PROVIDE THE MATERIALS TO OUR OFFICE FOR OUR IN CAMERA REVIEW.) CMP'S RECOURSE, HOWEVER, IS TO PURSUE THE DISCLOSURE OF THE INFORMATION BY DOE THROUGH THE FREEDOM OF INFORMATION ACT, 5 U.S.C. SEC. 552 (1982), AND NOT THROUGH THE BID PROTEST FORUM. SPECTRUM LEASING CORP., B-213647.3, SEPT. 10, 1984, 84-2 CPD PARA. 267. OUR OFFICE HAS NO AUTHORITY UNDER THAT STATUTE TO DECIDE WHAT INFORMATION AN AGENCY MUST RELEASE. ID.

CONCERNING WHETHER THERE SHOULD HAVE BEEN A REFERRAL TO THE SBA UNDER THE COC PROCEDURES, THE COC PROGRAM IS RESERVED FOR REVIEWING NONRESPONSIBILITY DETERMINATIONS, THAT IS, CONTRACTING ACTIVITY DECISIONS THAT PARTICULAR SMALL BUSINESS FIRMS LACK THE ABILITY TO PERFORM CONTRACTS AS REQUIRED. 15 U.S.C. SEC. 637(B)(7)(A). CMP, HOWEVER, WAS NOT JUDGED NONRESPONSIBLE, BUT SIMPLY LOST TO A COMPETITOR IN AN EVALUATION, PURSUANT TO THE RFP'S GROUND RULES, OF THE RELATIVE MERITS OF EACH OFFER TO PERFORM THE REQUIREMENT IN A PARTICULAR WAY, USING RESOURCES PRESUMABLY AVAILABLE TO THE OFFEROR FOR THAT PURPOSE.

MOREOVER, TO THE EXTENT THE PROPOSAL EVALUATION DID INCLUDE SOME TYPICAL RESPONSIBILITY FACTORS, WE HAVE RECOGNIZED THAT IT IS APPROPRIATE IN A NEGOTIATED PROCUREMENT TO USE TRADITIONAL RESPONSIBILITY FACTORS AS TECHNICAL EVALUATION CRITERIA AND TO JUDGE PROPOSAL ON THAT BASIS. ANDERSON ENGINEERING AND TESTING CO., B-20863, JAN. 13, 1983, 83-1 CPD PARA. 99. AS LONG AS THOSE FACTORS ARE LIMITED TO AREAS WHICH, WHEN EVALUATED COMPARATIVELY, CAN PROVIDE AN APPROPRIATE BASIS FOR A SELECTION THAT WILL BE IN THE GOVERNMNET'S BEST INTEREST, COC PROCEDURES DO NOT APPLY TO A DEFICIENT TECHNICAL PROPOSAL. /1/ DELTA DATA SYSTEMS CORP., B-213396, APRIL 17, 1984, 84-1 CPD PARA. 430. THE EVALUATION FACTORS USED HERE, WHICH FOCUSED ON PERFORMANCE QUALITY AND THE QUALITY OF REMEDIAL AND PREVENTIVE MAINTENANCE, CLEARLY WERE APPROPRIATE FOR COMPARATIVE EVALUATION IN A NEGOTIATED PROCUREMENT, SO THAT THE COC PROCEDURES WHERE INAPPLICABLE.

FINALLY, CMP PROTESTS THAT THE PROCUREMENT SHOULD HAVE BEEN FORMALLY ADVERTISED INSTEAD OF NEGOTIATED. THIS ISSUE IS UNTIMELY. UNDER OUR BID PROTEST PROCEDURES, 4 C.R.F. SEC. 21.2(A)(1) (1984), THIS MATTER HAD TO BE RAISED BEFORE INITIAL PROPOSALS WERE DUE, SINCE THE PROCUREMENT APPROACH WAS EVIDENT TO CMP WHEN IT RECEIVED THE SOLICITATION. CMP DID NOT PROTEST UNTIL AFTER IT LOST THE COMPETITION, AND WE THEREFORE WILL NOT CONSIDER THE MERITS OF THE ISSUE.

THE PROTEST IS DENIED IN PART AND DISMISSED IN PART.

/1/ SUCH AREAS MAY INCLUDE EXPERIENCE, AVAILABLE FACILITIES, AND PERSONNEL QUALIFICATION, BUT GENERALLY NOT FINANCIAL CAPABILITY. DELTA DATA SYSTEMS CORP., SUPRA.