B-222311, MAY 23, 1986, 86-1 CPD 485

B-222311, MAY 23, 1986, 86-1 CPD 485

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - SOLICITATION IMPROPRIETIES - APPARENT PRIOR TO BID OPENING/CLOSING DATE FOR PROPOSALS DIGEST: 1. PROTEST FILED AFTER AWARD ALLEGING THAT EVALUATION METHOD FOR PROPOSALS WAS UNFAIR BECAUSE IT PLACED TOO MUCH EMPHASIS ON PAST EXPERIENCE IS UNTIMELY, SINCE IT IS AN ALLEGATION OF A SOLICITATION IMPROPRIETY WHICH WAS APPARENT PRIOR TO THE INITIAL CLOSING DATE FOR RECEIPT OF PROPOSALS. CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - EVALUATION - NOT FOR SBA REVIEW 2. SMALL BUSINESS ADMINISTRATION (SBA) CERTIFICATE OF COMPETENCY PROCEDURES DO NOT APPLY, AND A REFERRAL THEREUNDER IS NOT REQUIRED, WHEN A SMALL BUSINESS FIRM'S OFFER TO PERFORM COST STUDIES UNDER OFFICE OF MANAGEMENT AND BUDGET CIRCULAR A-76 IS DOWNGRADED UNDER TECHNICAL EVALUATION CRITERIA RELATING TO PAST EXPERIENCE. THE SBA REVIEWS MATTERS THAT PERTAIN TO THE NONRESPONSIBILITY OF SMALL BUSINESS CONCERNS, NOT THE EVALUATION OF THEIR TECHNICAL PROPOSALS.

TERRY B. ARMENTROUT ENGINEERING & BUSINESS CONSULTING:

TERRY B. ARMENTROUT ENGINEERING AND BUSINESS CONSULTING (ARMENTROUT) PROTESTS THE AWARD OF A CONTRACT TO MANAGEMENT CONSULTANTS ASSOCIATES UNDER REQUEST FOR PROPOSALS (RFP) DACW45-86-R-0001 ISSUED BY THE OMAHA DISTRICT OF THE ARMY CORPS OF ENGINEERS. THE SOLICITATION REQUESTED OFFERS FOR THE PERFORMANCE OF OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR A-76 COST STUDIES FOR MAINTENANCE FUNCTIONS AT SIX DESIGNATED OMAHA DISTRICT RECREATION AREAS. THE A-76 STUDIES WERE TO BE CONDUCTED TO DETERMINE WHETHER IT WOULD BE LESS EXPENSIVE TO CONTRACT OUT THE MAINTENANCE WORK THAN TO CONTINUE ITS PERFORMANCE BY GOVERNMENT EMPLOYEES. EIGHT PROPOSALS WERE RECEIVED BY JANUARY 16, 1986, THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS.

IN ITS PROTEST, FILED IN OUR OFFICE ON MARCH 18, ARMENTROUT FIRST CONTENDS THAT THE RFP'S EVALUATION METHOD WAS UNFAIR BECAUSE IT PLACED TOO MUCH EMPHASIS ON THE OFFEROR'S PREVIOUS EXPERIENCE IN PERFORMING OMB CIRCULAR A-76 STUDIES. THE PROTESTER MAINTAINS THAT THE SOLICITATION REQUIREMENT FOR PREVIOUS EXPERIENCE IN CONDUCTING OMB A-76 STUDIES IS "AN ARTIFICIAL AND UNNECESSARY BARRIER TO NEW FIRMS TRYING TO ENTER THIS MARKET." FOR EXAMPLE, ARMENTROUT STATES, HIS FIRM RECEIVED "LITTLE OR NO" POINTS UNDER THE "PREVIOUS EXPERIENCE" CRITERION EVEN THOUGH HIS PROJECT MANAGER HAS MORE THAN 11 YEARS "DIRECT ENGINEERING AND MANAGEMENT EXPERIENCE WITH OPERATION AND MAINTENANCE ACTIVITIES AT CORPS OF ENGINEERS MULTIPLE PROJECTS."

SECONDLY, THE PROTESTER CONTENDS THAT BECAUSE IT IS A SMALL BUSINESS AND WAS THE LOW OFFEROR, THE CONTRACTING OFFICER SHOULD NOT HAVE DOWNGRADED ITS PROPOSAL IN THE AREA OF PREVIOUS EXPERIENCE WITHOUT FIRST OBTAINING A CERTIFICATE OF COMPETENCY (COC) FROM THE SMALL BUSINESS ADMINISTRATION (SBA) TO DETERMINE ARMENTROUT'S CAPABILITY TO PERFORM THE CONTRACT.

THE PROTEST IS DISMISSED IN PART AND DENIED IN PART.

IN SECTION "M" (EVALUATION FACTORS), THE RFP SET FORTH THE MANNER IN WHICH PROPOSALS WOULD BE EVALUATED, AND LISTED THE EVALUATION FACTORS FOR AWARD AND THE RELATIVE IMPORTANCE OF EACH, AS FOLLOWS:

PREVIOUS EXPERIENCE 35%

PRICE 35%

TECHNICAL 20%

COMPLETION SCHEDULE 10%

PARAGRAPH 6 OF SECTION "M" FURTHER PROVIDED:

"A. AWARD SHALL BE MADE TO THAT RESPONSIBLE OFFEROR WHOSE OFFER, ... IS WITHIN A TECHNICAL/PRICE COMPETITIVE RANGE AS DETERMINED BY THE CONTRACTING OFFICER AND HAS BEEN EVALUATED AS MOST ADVANTAGEOUS TO THE GOVERNMENT, TECHNICAL, PRICE, AND OTHER FACTORS CONSIDERED.

"B. THE RIGHT IS RESERVED TO ACCEPT OTHER THAN THE LOWEST OFFER. ..."

SINCE THE SOLICITATION STATED THE EVALUATION FACTORS AND THEIR RELATIVE WEIGHTS, ARMENTROUT'S PROTEST THAT THE EVALUATION OF PROPOSALS WAS UNFAIR BECAUSE IT OVEREMPHASIZED PAST EXPERIENCE CONSTITUTES AN ALLEGATION OF A SOLICITATION IMPROPRIETY THAT WAS APPARENT BEFORE THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS. OUR BID PROTEST REGULATIONS REQUIRE THAT A PROTEST BASED UPON ALLEGED IMPROPRIETIES IN A SOLICITATION MUST BE FILED PRIOR TO THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS. 4 C.F.R. SEC. 21.2(A)(1) (1985). SINCE ARMENTROUT'S PROTEST OF THE EVALUATION SCHEME WAS RAISED AFTER THE CLOSING DATE, IT IS UNTIMELY. THE CHESAPEAKE AND POTOMAC TELEPHONE CO., B-220512, OCT. 11, 1985, 85-2 CPD PARA 408. THE PROTEST IS DISMISSED ON THIS BASIS.

IN REVIEWING PROTEST AGAINST ALLEGEDLY IMPROPER EVALUATIONS, OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING AGENCY, BUT WILL EXAMINE THE RECORD TO DETERMINE WHETHER THE AGENCY'S JUDGMENT WAS REASONABLE AND IN ACCORDANCE WITH THE EVALUATION CRITERIA SET FORTH IN THE SOLICITATION AND WHETHER THERE WERE ANY VIOLATIONS OF PROCUREMENT STATUTES AND REGULATIONS. SEE ADVANCED TECHNOLOGY SYSTEMS, B-221068, MAR. 17, 1986, 86-1 CPD PARA. 260 AT 4.

THE EVALUATION CRITERION OF "PREVIOUS EXPERIENCE" WAS DIVIDED INTO FOUR ELEMENTS OR SUBFACTORS WHICH, IN DESCENDING ORDER OF IMPORTANCE, WERE:

"A. PAST EXPERIENCE OF THE COMPANY. ... THE OFFEROR WILL ONLY LIST THOSE STUDIES THAT SHOW FAMILIARITY WITH OMB CIRCULAR A-76 POLICIES AND PROCEDURES AND ARE SIMILAR IN NATURE TO THIS REQUIREMENT. ...

"B. EXPERIENCE OF MANAGEMENT PERSONNEL EXPECTED TO SUPERVISE THE COST STUDIES UNDER THIS CONTRACT. ...

"C. EXPERIENCE OF PERSONNEL EXPECTED TO PERFORM JOB ANALYSES, DATA/COLLECTION, INTERVIEW, AND OTHER TASKS USED IN THE FORMULATION OF THE COST STUDIES. ...

"D. ... OTHER INFORMATION THAT WILL FURTHER SUBSTANTIATE THE FIRM'S ABILITY TO PROSECUTE ALL WORK IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS RFP."

ALTHOUGH ARMENTROUT'S PROPOSAL DID RECEIVE POINTS UNDER SUBFACTORS "B." AND "C." RELATING TO PERSONNEL EXPERIENCE, IT RECEIVED NO POINTS UNDER "A.", THE MOST IMPORTANT SUBFACTOR, WHICH EMPHASIZED THE NEED FOR A FIRM TO SHOW THAT IT HAD PREVIOUS EXPERIENCE WHICH PROVIDED IT WITH FAMILIARITY WITH SIMILAR CIRCULAR A-76 STUDIES.

THE PROTESTER'S PROPOSAL AND SUPPORTING DOCUMENTS BEAR NO INDICATION THAT THE FIRM HAS ANY PREVIOUS EXPERIENCE OF THE TYPE DESIGNATED IN THE SOLICITATION AS MOST IMPORTANT. WE, THEREFORE, DO NOT FIND THAT THE CORPS WAS UNREASONABLE IN DOWNGRADING ARMENTROUT'S PROPOSAL IN THE CATEGORY OF PAST EXPERIENCE. SERVICE VENTURES, INC., B-221261, APR. 16, 1986, 86-1 CPD PARA. ***.

CONCERNING ARMENTROUT'S CONTENTION THAT THE CORPS IMPROPERLY FAILED TO REFER IT TO THE SBA FOR THE POSSIBLE ISSUANCE OF A COC BEFORE DOWNGRADING ITS PROPOSAL IN THE AREA OF EXPERIENCE, A CONTRACTING AGENCY IS REQUIRED TO REQUEST A COC FROM THE SBA ONLY WHEN THE CONTRACTING OFFICER FINDS A SMALL BUSINESS TO BE NONRESPONSIBLE. IN A NEGOTIATED PROCUREMENT, IT IS NOT IMPROPER TO INCLUDE TRADITIONAL RESPONSIBILITY FACTORS, SUCH AS EXPERIENCE, AMONG TECHNICAL EVALUATION CRITERIA IF THOSE FACTORS ARE LIMITED TO AREAS WHICH, WHEN EVALUATED COMPARATIVELY, CAN PROVIDE AN APPROPRIATE BASIS FOR A SELECTION THAT WILL BE IN THE GOVERNMENT'S BEST INTEREST. SEE WICKMAN SPACECRAFT AND PROPULSION CO., B-219675, DEC. 20, 1985, 85-2 CPD PARA. 690 AT 3. WHERE, AS IN THIS CASE, THE CONTRACTING AGENCY DOES NOT FIND THE FIRM NONRESPONSIBLE, BUT RATHER, DETERMINES ITS PROPOSAL TO BE TECHNICALLY DEFICIENT UNDER THE EVALUATION CRITERIA FOR EXPERIENCE AS SET FORTH IN THE SOLICITATION, THE SBA COC PROCEDURES ARE NOT APPLICABLE, AND REFERRAL IS NOT REQUIRED. SERVICE VENTURES, INC., B-221261, SUPRA, 86-1 CPD PARA. *** AT 6.

THE PROTEST IS DISMISSED IN PART AND DENIED IN PART.