B-219343.3, OCT 4, 1985, 85-2 CPD 380

B-219343.3: Oct 4, 1985

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THE RECORD INDICATES THAT EVEN IF THE OFFEROR WERE AWARDED THE MAXIMUM SCORE FOR THIS CRITERION. PROTEST THAT AN AGENCY'S INCLUSION OF CERTAIN ELEMENTS OF A PROTESTER'S TECHNICAL APPROACH IN AN AMENDMENT TO THE SOLICITATION RESULTED IN AN UNFAIR TECHNICAL TRANSFUSION IS UNTIMELY WHERE THIS CONTENTION. IS NOT RAISED BEFORE THE NEXT CLOSING DATE FOR RECEIPT OF PROPOSALS FOLLOWING THE AMENDMENT. THAT INTERIOR SHOULD HAVE EXCLUDED RECOSOL FROM AWARD DUE TO RECOSOL'S FAILURE TO ACKNOWLEDGE A MATERIAL AMENDMENT TO THE SOLICITATION. 1984 FOR THE CONSTRUCTION OF A TEST SECTION OF A PROPOSED CONCRETE DIAPHRAGM WALL THAT IS DESIGNED TO PREVENT THE POSSIBLE FAILURE OF THE DAM. THESE CRITERIA WERE ASSIGNED MAXIMUM POINT SCORES OF 65.

B-219343.3, OCT 4, 1985, 85-2 CPD 380

CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - DISCUSSION WITH ALL OFFERORS REQUIREMENT - "MEANINGFUL" DISCUSSIONS DIGEST: 1. REQUIREMENT FOR MEANINGFUL DISCUSSIONS DOES NOT OBLIGATE AGENCIES TO IDENTIFY EVERY ASPECT OF A TECHNICALLY ACCEPTABLE PROPOSAL THAT RECEIVES LESS THAN A MAXIMUM SCORE, NOR DOES IT REQUIRE AGENCIES TO ADVISE OFFERORS OF THE RELATIVE STANDING OF THEIR PRICE PROPOSALS. CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - DISCUSSIONS WITH ALL OFFERORS REQUIREMENT - FAILURE TO DISCUSS - SITUATIONS NOT REQUIRING DISCUSSIONS 2. WHERE AN AGENCY DOES NOT DISCUSS CONCERNS ABOUT PROPOSED KEY PERSONNEL, BUT THE RECORD INDICATES THAT EVEN IF THE OFFEROR WERE AWARDED THE MAXIMUM SCORE FOR THIS CRITERION, IN VIEW OF ITS HIGHER PROPOSED PRICE, THE RELATIVE STANDING OF OFFERORS WOULD NOT CHANGE, THE LACK OF DISCUSSIONS PROVIDES NO BASIS TO SUSTAIN THE PROTEST. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - SOLICITATION IMPROPRIETIES - APPARENT PRIOR TO BID OPENING/CLOSING DATE FOR PROPOSALS 3. PROTEST THAT AN AGENCY'S INCLUSION OF CERTAIN ELEMENTS OF A PROTESTER'S TECHNICAL APPROACH IN AN AMENDMENT TO THE SOLICITATION RESULTED IN AN UNFAIR TECHNICAL TRANSFUSION IS UNTIMELY WHERE THIS CONTENTION, WHICH INVOLVES AN ALLEGED SOLICITATION IMPROPRIETY, IS NOT RAISED BEFORE THE NEXT CLOSING DATE FOR RECEIPT OF PROPOSALS FOLLOWING THE AMENDMENT. BIDS - INVITATION FOR BIDS - AMENDMENTS - FAILURE TO ACKNOWLEDGE - WAIVED AS MINOR INFORMALITY AWARDEE'S INADVERTENT FAILURE EXPRESSLY TO ACKNOWLEDGE AN AMENDMENT TO A SOLICITATION ON THE STANDARD FORM ATTACHED TO ITS BEST AND FINAL OFFER DOES NOT AFFECT THE VALIDITY OF THE AWARDEE'S BEST AND FINAL OFFER INCORPORATED THE WORK REQUIRED UNDER THE AMENDMENT.

BAUER OF AMERICA CORP. & RAYMOND INTERNATIONAL BUILDERS, INC., A JOINT VENTURE:

BAUER OF AMERICA CORP. & RAYMOND INTERNATIONAL BUILDERS, INC., A JOINT VENTURE, PROTESTS THE AWARD OF A FIRM-FIXED PRICE CONTRACT TO RECOSOL, INCORPORATED UNDER REQUEST FOR PROPOSALS (RFP) NO. 4-SP-40 02380, ISSUED BY THE BUREAU OF RECLAMATION, DEPARTMENT OF THE INTERIOR. THE CONTRACT ID FOR REPAIR OF FONTENELLE DAM IN LINCOLN COUNTY, WYOMING.

BAUER CONTENDS THAT INTERIOR FAILED TO CONDUCT MEANINGFUL DISCUSSIONS BECAUSE IT DID NOT IDENTIFY DEFICIENCIES IN BAUER'S TECHNICAL AND COST PROPOSALS; THAT THE AGENCY'S INCORPORATION OF CERTAIN ELEMENTS OF BAUER'S PROPOSAL IN AMENDMENTS TO THE SOLICITATION AMOUNTED TO AN IMPROPER TECHNICAL TRANSFUSION; AND THAT INTERIOR SHOULD HAVE EXCLUDED RECOSOL FROM AWARD DUE TO RECOSOL'S FAILURE TO ACKNOWLEDGE A MATERIAL AMENDMENT TO THE SOLICITATION.

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

BACKGROUND

INTERIOR ISSUED THE SOLICITATION ON DECEMBER 3, 1984 FOR THE CONSTRUCTION OF A TEST SECTION OF A PROPOSED CONCRETE DIAPHRAGM WALL THAT IS DESIGNED TO PREVENT THE POSSIBLE FAILURE OF THE DAM. THE RFP SET FORTH THE FOLLOWING TECHNICAL EVALUATION CRITERIA: CONCRETE DIAPHRAGM WALL CONSTRUCTION (PRACTICALITY AND SUITABILITY OF METHODS); KEY PERSONNEL; CORPORATE EXPERIENCE; AND SAFETY. THESE CRITERIA WERE ASSIGNED MAXIMUM POINT SCORES OF 65, 15, 15, AND 5, RESPECTIVELY. PRICE SCORES WERE TO BE ESTABLISHED BY DIVIDING THE LOWEST OFFER BY THE OFFER BEING SCORED AND MULTIPLYING THIS FRACTION BY 100. THE TECHNICAL SCORE COMPRISED 70 PERCENT OF THE TOTAL EVALUATION SCORE, AND THE PRICE SCORE COMPRISED THE REMAINING 30 PERCENT.

INTERIOR RECEIVED INITIAL PROPOSALS FROM SIX FIRMS. THREE WERE DETERMINED TO BE WITHIN THE COMPETITIVE RANGE; OF THESE, BAUER'S RECEIVED THE LOWEST TECHNICAL SCORE, 85.8, AND RECOSOL'S THE HIGHEST, 94.5. TAKING PRICE INTO CONSIDERATION, BAUER'S RANKED THIRD WITH A TOTAL OF 87.96 POINTS, WHILE RECOSOL'S REMAINED HIGH WITH 96.15. (THE SECOND-RANKED PROPOSAL IS NOT AT ISSUE HERE.)

DISCUSSIONS WERE HELD DURING THE LAST 2 WEEKS OF APRIL 1985, AFTER WHICH INTERIOR REQUESTED BEST AND FINAL OFFERS. EXCEPT FOR INCORPORATION BY REFERENCE THE MOST RECENT RFP MODIFICATIONS, NO OFFEROR CHANGED ITS TECHNICAL PROPOSAL, AND PROPOSED PRICES WERE VIRTUALLY THE SAME AS ORIGINALLY SUBMITTED. CONSEQUENTLY, DURING THE FINAL EVALUATION INTERIOR AGAIN RANKED BAUER'S PROPOSAL THIRD. ON MAY 15, INTERIOR AWARDED A CONTRACT TO RECOSOL.

BAUER'S PROTEST

A. ACCESS TO PROCUREMENT INFORMATION

BAUER INITIALLY COMPLAINS THAT INTERIOR HAS DENIED ACCESS TO CERTAIN INFORMATION AND DOCUMENTS THAT IT BELIEVES WOULD BE USEFUL IN THE DEVELOPMENT OF ITS PROTEST. IN PARTICULAR, BAUER REFERS TO THOSE DOCUMENTS THAT INTERIOR SUPPLIED TO OUR OFFICE THAT WERE NOT INCLUDED WITH BAUER'S COPY OF THE ADMINISTRATIVE REPORT.

UNDER THE COMPETITION IN CONTRACTING ACT OF 1984, 31 U.S.C. SEC. 3553(F) (WEST SUPP. 1985), THE PROCURING AGENCY HAS THE PRIMARY RESPONSIBILITY FOR DETERMINING WHICH DOCUMENTS ARE SUBJECT TO RELEASE, AND WE WILL NOT QUESTION THE AGENCY'S DETERMINATION IN THE ABSENCE OF A SHOWING OF FRAUD OR BAD FAITH ON THE PART OF CONTRACTING OFFICIALS. SEE EMPLOYMENT PERSPECTIVES, B-218338, JUNE 24, 1985, 85-1 CPD PARA. 715. NO SUCH SHOWING HAS BEEN MADE HERE. IN ADDITION, WE HAVE REVIEWED THE DOCUMENTS IN QUESTION, AND WE BASE OUR DECISION ON THE ENTIRE RECORD, NOT MERELY THOSE PORTIONS OF IT THAT HAVE BEEN PROVIDED TO THE PROTESTER.

B. ADEQUACY OF DISCUSSIONS

BAUER CONTENDS THAT INTERIOR FAILED TO CONDUCT MEANINGFUL DISCUSSIONS AFTER ITS INITIAL PROPOSAL WAS INCLUDED IN THE COMPETITIVE RANGE. OTHER THAN DISCUSSING TWO MINOR MATTERS REGARDING BAUER'S PRICE PROPOSAL, THE AGENCY DID NOT POINT OUT ANY DEFICIENCIES THAT HAD BEEN IDENTIFIED DURING THE EVALUATION OF BAUER'S PROPOSAL. BAUER MAINTAINS THAT IT THEREFORE WAS MISLED INTO BELIEVING THAT THERE WERE NO WEAKNESSES IN ITS TECHNICAL OR PRICE PROPOSALS, AND, CONSEQUENTLY, IT MADE NO REVISIONS IN ITS BEST AND FINAL OFFER.

AGENCIES GENERALLY MUST CONDUCT WRITTEN OR ORAL DISCUSSIONS WITH ALL RESPONSIBLE OFFERORS WITHIN A COMPETITIVE RANGE, AND THIS INCLUDES ADVISING OFFERORS OF DEFICIENCIES IN THEIR PROPOSALS, SO THAT THEY HAVE AN OPPORTUNITY TO SATISFY THE GOVERNMENT'S REQUIREMENTS. FEDERAL ACQUISITION REGULATION, 48 C.F.R. SEC. 15.610 (1984). THIS REQUIREMENT CAN BE SATISFIED ONLY WHEN DISCUSSIONS ARE MEANINGFUL, WHICH MEANS THAT NEGOTIATIONS SHOULD BE AS SPECIFIC AS PRACTICAL CONSIDERATIONS WILL PERMIT. TRACOR MARINE INC., B-207285, JUNE 6, 1983, 83-1 CPD PARA. 604.

AGENCIES ARE NOT OBLIGATED, HOWEVER, TO AFFORD OFFERORS ALL ENCOMPASSING NEGOTIATIONS. THE CONTENT AND EXTENT OF DISCUSSIONS IN A GIVEN CASE ARE MATTERS OF JUDGMENT PRIMARILY FOR DETERMINATION BY THE AGENCY INVOLVED AND ARE NOT SUBJECT TO QUESTION BY OUR OFFICE UNLESS WITHOUT A REASONABLE BASIS. INFORMATION NETWORK SYSTEMS, B-208009, MAR. 17, 1983, 83-1 CPD PARA. 272. WHERE A PROPOSAL IS CONSIDERED TO BE ACCEPTABLE AND IN THE COMPETITIVE RANGE, THE AGENCY IS UNDER NO OBLIGATION TO DISCUSS EVERY ASPECT OF IT THAT HAS RECEIVED LESS THAN THE MAXIMUM POSSIBLE SCORE. SEE ADP NETWORK SERVICES, INC., B-200675, MAR. 2, 181, 81-1 CPD PARA. 157. MOREOVER, AN AGENCY MAY NOT ADVISE AN OFFEROR OF ITS PRICE STANDING RELATIVE TO OTHER OFFERORS, ALTHOUGH THE AGENCY MAY INFORM AN OFFEROR THAT ITS COST OR PRICE IS CONSIDERED TOO HIGH OR UNREALISTIC. 48 C.F.R.SEC. 15.610(D)(II).

BAUER'S PROPOSAL, WHILE NOT RECEIVING A PERFECT SCORE FOR EACH CRITERION, WAS RATED HIGHLY BY INTERIOR. THE TECHNICAL EVALUATION PANEL GAVE IT RELATIVELY HIGH SCORES FOR THREE OF FOUR EVALUATION CRITERIA, NAMELY, CONCRETE DIAPHRAGM WALL CONSTRUCTION, CORPORATE EXPERIENCE, AND SAFETY. FOR 16 OF 17 SUBCRITERIA IN THESE AREAS, BAUER RECEIVED SCORES THAT AVERAGED ONE POINT OR LESS BELOW THE MAXIMUM POSSIBLE. THUS, WEAKNESSES IN THREE AREAS WERE MINOR, AND WE BELIEVE THAT INTERIOR WAS NOT OBLIGATED TO ADVISE BAUER OF THEM. SEE DYNALECTRON CORP.-- PACORD, INC., B-217472, MAR. 18, 1985, 85-1 CPD PARA. 321.

IT IS ARGUABLE THAT THE AGENCY SHOULD HAVE ADVISED BAUER THAT IT WAS CONCERNED THAT PROPOSED KEY PERSONNEL LACKED EXPERIENCE IN THE SPECIFIC TYPE OF CONSTRUCTION NECESSARY FOR THE WORK ON FONTENELLE DAM. OF 15 POSSIBLE POINTS FOR THIS CRITERION, BAUER RECEIVED ONLY 9.2 (61 PERCENT), WHILE RECOSOL RECEIVED 14.8 (99 PERCENT). HOWEVER, EVEN IF BAUER HAD RECEIVED THE MAXIMUM POSSIBLE POINTS FOR KEY PERSONNEL, IN VIEW OF ITS HIGHER PROPOSED PRICE, ITS COMPOSITE SCORE (92.02) WOULD HAVE REMAINED BELOW RECOSOL'S (96.15). THUS, INTERIOR'S FAILURE TO DISCUSS THIS ASPECT OF BAUER'S PROPOSAL PROVIDES NO BASIS FOR SUSTAINING THE PROTEST. CF. SOUTHWEST MARINE, INC., B-198701, B-198701, AUG. 15, 1980, 80-2 CPD PARA. 123 (WHERE DISCUSSIONS AND AN OPPORTUNITY TO CORRECT A PARTICULAR DEFICIENCY WILL NOT CHANGE THE RELATIVE POSITION OF OFFERORS, WE WILL NOT CONSIDER AGENCY'S ALLEGED IMPROPER FAILURE TO POINT OUT THE DEFICIENCY).

BAUER ALSO CONTENDS THAT INTERIOR FAILED TO CONDUCT MEANINGFUL DISCUSSIONS WITH RESPECT TO ITS PRICE PROPOSAL. THE PROTESTER STATES THAT SINCE THE CONTRACT WAS TO BE AWARDED ON A FIRM-FIXED PRICE BASIS, IT SHOULD HAVE BEEN ADVISED WHETHER OR NOT IT USED REALISTIC COST ESTIMATES IN CALCULATING ITS PRICE.

INTERIOR CONSIDERED THE PRICE PROPOSALS OF ALL THREE OFFERORS IN THE COMPETITIVE RANGE TO BE QUITE COMPETITIVE AND, THEREFORE, REASONABLE. THE AGENCY ALSO HAD NO MAJOR CONCERNS ABOUT INDIVIDUAL LINE ITEMS. THE HIGHEST PRICE PROPOSAL (BAUER'S) AND THE LOWEST (RECOSOL'S) DIFFERED BY LESS THAN 1 PERCENT. UNDER THE CIRCUMSTANCES, WE BELIEVE THAT INTERIOR ACTED REASONABLY IN NOT DISCUSSING BAUER'S PRICE PROPOSAL.

C. TECHNICAL TRANSFUSION

BAUER NEXT ALLEGES THAT INTERIOR'S INCORPORATION OF CERTAIN ELEMENTS OF ITS PROPOSAL IN AMENDMENTS TO THE SOLICITATION PRESENTED TO OFFERORS DURING DISCUSSIONS RESULTED IN AN UNFAIR TECHNICAL TRANSFUSION OF AN INNOVATIVE APPROACH INCLUDED IN BAUER'S PROPOSAL. BAUER STATES THAT ONE OF THE AMENDMENTS INCORPORATED ITS TESTING TECHNIQUE FOR PLOTTING EXCAVATIONS. BY INCLUDING THIS TECHNIQUE IN THE SOLICITATION, BAUER ARGUES, INTERIOR GAVE THE OTHER OFFERORS GUIDANCE FOR ASSURING QUALITY CONTROL AND, CONSEQUENTLY, MADE IT POSSIBLE FOR THEM TO LOWER THEIR PRICES.

THIS BASIS OF PROTEST IS UNTIMELY. UNDER OUR BID PROTEST REGULATIONS, PROTESTS BASED UPON ALLEGED IMPROPRIETIES THAT DO NOT EXIST IN AN INITIAL SOLICITATION BUT WHICH ARE SUBSEQUENTLY INCORPORATED MUST BE PROTESTED NO LATER THAN THE NEXT CLOSING DATE FOR RECEIPT OF PROPOSALS FOLLOWING THEIR INCORPORATION. 4 C.F.R. SEC. 21.2(A)(I) (1985). THEREFORE, BAUER'S PROTEST CONCERNING THE CONTENT OF THE AMENDMENT SHOULD HAVE BEEN FILED BEFORE THE MAY 8 CLOSING DATE FOR RECEIPT OF BEST AND FINAL OFFERS. SEE THE ADVANTECH CORP., B-207793, JAN. 3, 1983, 83-1 CPD PARA. 3. SINCE BAUER DID NOT FILE ITS PROTEST UNTIL JUNE 4, WELL AFTER THIS DATE, WE DISMISS THIS BASIS FOR PROTEST.

D. FAILURE TO ACKNOWLEDGE AMENDMENT

BAUER'S FINAL GROUND OF PROTEST IS THAT RECOSOL FAILED TO ACKNOWLEDGE AMENDMENT 6 ON STANDARD FORM 1442, THE COVER SHEET SUBMITTED WITH ITS BEST AND FINAL OFFER. ALTHOUGH THERE IS NO DISPUTE THAT RECOSOL ACKNOWLEDGED THIS AMENDMENT WHEN SUBMITTING ITS INITIAL PROPOSAL, BAUER QUESTIONS WHETHER RECOSOL IS LEGALLY BOUND TO PERFORM THE WORK REQUIRED BY THIS AMENDMENT. BAUER ADDITIONALLY QUESTIONS WHETHER ITS AND RECOSOL'S BEST AND FINAL OFFERS WERE FOR THE SAME WORK.

THE RECORD SHOWS THAT RECOSOL'S INITIAL PROPOSAL WAS INCORPORATED IN ITS BEST AND FINAL OFFER AND THAT CHANGES IN BOTH THE SCOPE AND SCHEDULE OF WORK COVERED BY THE AMENDMENT WERE INCLUDED IN THAT OFFER. THUS, RECOSOL'S SIGNATURE ON THE BEST AND FINAL OFFER ENSURES THAT INTERIOR'S ACCEPTANCE OF IT OBLIGATES THE FIRM TO PERFORM IN ACCORD WITH THE TERMS OF THE SOLICITATION, INCLUDING THOSE SET FORTH IN AMENDMENT 6. CF. FIRST FEDERAL DATA SERVICES, B-216487, DEC. 21, 1984, 84-2 CPD PARA. 685 (BIDDER'S FAILURE TO ACKNOWLEDGE AMENDMENT FORMALLY MAY BE WAIVED WHEN BID CLEARLY INDICATES THAT THE FIRM RECEIVED IT). THEREFORE, RECOSOL'S INADVERTENT FAILURE TO EXPRESSLY ACKNOWLEDGE THIS AMENDMENT ON THE COVER SHEET OF ITS BEST AND FINAL OFFER DOES NOT AFFECT THE VALIDITY OF THE AWARD.

WE DISMISS THE PROTEST WITH REGARD TO ALLEGED TECHNICAL TRANSFUSION AND DENY THE REMAINDER.