B-224212, DEC 8, 1986, 86-2 CPD 653

B-224212, DEC 8, 1986, 86-2 CPD 653

PROCUREMENT - COMPETITIVE NEGOTIATION - OFFERS - EVALUATION - TECHNICAL ACCEPTABILITY PROCUREMENT - COMPETITIVE NEGOTIATION - OFFERS - TECHNICAL ACCEPTABILITY - NEGATIVE DETERMINATION - PROPRIETY DIGEST: IN NEGOTIATED PROCUREMENTS, SINCE THE AGENCY'S TECHNICAL EVALUATION IS BASED UPON INFORMATION SUBMITTED WITH THE PROPOSAL, THE BURDEN IS CLEARLY ON THE OFFEROR TO SUBMIT AN ADEQUATELY WRITTEN PROPOSAL. THEREFORE, PROPOSAL WITH MATERIAL TECHNICAL INFORMATIONAL DEFICIENCIES MAY BE REJECTED AS TECHNICALLY UNACCEPTABLE WHERE THE PROPOSAL DEMONSTRATES THAT THE OFFEROR DID NOT MAKE THE EFFORT TO ADEQUATELY ADDRESS THE SOLICITATION'S REQUIREMENTS.

DOD CONTRACTS, INC.:

DOD CONTRACTS, INC. (DCI) PROTESTS ITS EXCLUSION FROM THE COMPETITIVE RANGE UNDER REQUEST FOR PROPOSALS (RFP) NO. N62467-86-R 4744, ISSUED BY THE NAVAL AIR REWORK FACILITY, NAVAL AIR STATION, JACKSONVILLE, FLORIDA FOR CUSTODIAL SERVICES. ALTHOUGH THE NAVY HAS NOT RELEASED ANY DETAILED INFORMATION TO THE PROTESTER CONCERNING THE EVALUATION OF PROPOSALS, BECAUSE IT BELIEVES THIS INFORMATION TO BE PRIVILEGED, DCI NEVERTHELESS CONTENDS THAT ITS PROPOSAL WAS THE MOST ADVANTAGEOUS TO THE GOVERNMENT AND THAT THE NAVY'S EVALUATION WAS UNREASONABLE AND INCONSISTENT WITH THE SOLICITATION'S EVALUATION CRITERIA. /1/

WE DENY THE PROTEST.

THE RFP PROVIDED THAT THE SELECTION OF THE SUCCESSFUL OFFEROR WOULD BE MADE ON THE BASIS OF PRICE AND OTHER FACTORS; THE GOVERNMENT RESERVED THE RIGHT TO AWARD A CONTRACT TO OTHER THAN THE OFFEROR SUBMITTING THE LOWEST TOTAL PRICE AND TO AWARD THE CONTRACT TO THE OFFEROR WHOSE PROPOSAL WAS THE MOST ADVANTAGEOUS TO THE GOVERNMENT. THE RFP CONTEMPLATED THE SUBMISSION OF SEPARATE TECHNICAL AND PRICE PROPOSALS. THE SOLICITATION'S INSTRUCTIONS FOR PREPARATION OF TECHNICAL PROPOSALS CAUTIONED OFFERORS THAT TECHNICAL PROPOSALS SHOULD BE "PRECISE, FACTUAL, AND COMPLETE," AND SHOULD ADDRESS IN SUFFICIENT DETAIL THE STATED EVALUATION FACTORS. FURTHER, TECHNICAL PROPOSALS WERE REQUIRED TO INCLUDE, WHERE APPLICABLE, ORGANIZATIONAL CHARTS AND OTHER ILLUSTRATIONS CLEARLY ADDRESSING THE SPECIFIED EVALUATION FACTORS.

FOR AWARD PURPOSES, THE SOLICITATION LISTED THE FOLLOWING MAJOR EVALUATION FACTORS:

1. EXPERIENCE IN CUSTODIAL CONTRACTS

2. QUALIFICATIONS OF KEY MANAGEMENT AND SUPERVISORY PERSONNEL

3. MANAGEMENT AND ADMINISTRATION

4. COMPREHENSION OF SPECIFICATION REQUIREMENTS

5. METHOD OF OPERATION

6. PRICE PROPOSAL

OF THE ABOVE SIX LISTED FACTORS, FACTOR 6 (PRICE PROPOSAL) WAS STATED TO BE THE MOST IMPORTANT. THE REMAINING FACTORS WERE RANKED IN THE FOLLOWING ORDER OF IMPORTANCE: FACTOR 4, FACTORS 3 AND 5 (EQUAL IN IMPORTANCE), FACTOR 2, AND, FINALLY, FACTOR 1. WHILE THE SOLICITATION DID NOT INCLUDE NUMERICAL WEIGHTS FOR THE EVALUATION FACTORS, THE NAVY EVALUATORS DID ASSIGN NUMERICAL RATINGS (QUALITY POINTS) TO THE PROPOSALS PURSUANT TO AN INTERNAL "TECHNICAL PROPOSAL EVALUATION AND SOURCE SELECTION GUIDE," WHICH CONTAINED THE PROPOSED METHODS AND PROCEDURES FOR THE EVALUATION BY THE NAVY, AND WHICH ALSO CONTAINED NUMERICAL WEIGHTS FOR THE EVALUATION FACTORS THAT REFLECTED THE NARRATIVE WEIGHTS IN THE SOLICITATION.

ELEVEN PROPOSALS WERE RECEIVED IN RESPONSE TO THE RFP AND WERE EVALUATED BY THE NAVY. DCI RECEIVED A TOTAL TECHNICAL SCORE OF 342 POINTS OF A POTENTIAL 750 POINTS (PRICE WAS RATED SEPARATELY AND WAS ASSIGNED A WEIGHT OF 250 POINTS), WHILE THE TECHNICAL SCORES OF THE TWO HIGHEST-RATES OFFERORS WERE 724 AND 558. /2/ THE NAVY STATES THAT THE REASON FOR DCI'S LOW TECHNICAL RATING WAS THAT DCI'S PROPOSAL FAILED TO ADDRESS SEVERAL MAJOR AREAS REQUIRED BY THE RFP. SINCE THE NAVY RECEIVED TWO OTHER PROPOSALS WITH TECHNICAL SCORES OF APPROXIMATELY 500, AND SINCE DCI WAS TECHNICALLY RATED EIGHTH OF ELEVEN OFFERORS, AND BECAUSE DCI WAS NOT THE LOWEST-PRICED OFFEROR EVEN WHEN COMPARED TO SOME OF THE TECHNICALLY HIGHEST-RATED OFFERORS, THE NAVY EXCLUDED DCI FROM THE COMPETITIVE RANGE. THIS PROTEST FOLLOWED.

DCI STATES THAT IS HAS EXTENSIVE EXPERIENCE IN CUSTODIAL AND JANITORIAL SERVICES FOR THE GOVERNMENT AND ENJOYS AN EXCELLENT REPUTATION FOR THE PERFORMANCE OF THESE SERVICES. DCI FURTHER STATES THAT THE PRICE PROPOSAL IT SUBMITTED WAS "AS LOW AS POSSIBLE" FOR ANY OFFEROR PROPOSING TO PROVIDE THE MINIMUM NUMBER OF HOURS REQUIRED FOR PERFORMANCE UNDER THE SOLICITATION. DCI THEREFORE SUGGESTS THAT ITS PROPOSAL MUST HAVE BEEN MISEVALUATED. IN THIS REGARD, DCI REFERS TO AN ORAL STATEMENT BY THE CONTRACTING OFFICER DURING A TELEPHONE CONVERSATION IN WHICH HE ALLEGEDLY STATED THAT PRICE RECEIVED ONLY A 20 PERCENT WEIGHTING, WHILE TECHNICAL MERIT RECEIVED AN 80 PERCENT WEIGHTING, WHICH DCI CONTENDS IS IN CONTRAVENTION OF THE ANNOUNCED EVALUATION CRITERIA.

A PROTESTER HAS THE BURDEN OF PROVING THAT THE AGENCY'S EVALUATION WAS UNREASONABLE. ROBERT WEHRLI, B-216789, JAN. 16, 1985, 85-1 CPD PARA. 43. IN REVIEWING PROTESTS CONCERNING PROPOSALS WHICH HAVE BEEN REJECTED DUE TO INFORMATION DEFICIENCIES, THIS OFFICE LOOKS AT THE EXTENT TO WHICH THE SOLICITATION CALLED FOR DETAILED INFORMATION. WE ALSO CONSIDER WHETHER THE OMISSIONS SHOW THAT THE OFFEROR DID NOT UNDERSTAND WHAT IT WOULD BE REQUIRED TO DO UNDER THE CONTRACT, AND WHETHER THE PROPOSAL AS SUBMITTED WAS EITHER INFERIOR BUT SUSCEPTIBLE OF BEING MADE ACCEPTABLE OR SO DEFICIENT THAT AN ENTIRELY NEW PROPOSAL WOULD BE NEEDED. /3/ FINALLY, WE LOOK AT THE NUMBER OF OTHER OFFERORS IN THE COMPETITIVE RANGE AND AT THE POTENTIAL COST SAVINGS OFFERED BY THE REJECTED PROPOSAL. ELECTROSPACE SYSTEM, INC., 58 COMP.GEN. 415 (1979), 79-1 CPD PARA. 264; INFORMATICS, INC., B-194926, JULY 2, 1980, 80-2 CPD PARA. 8.

HERE, AS WE HAVE ALREADY INDICATED, THE RFP CALLED FOR PRECISE, FACTUAL AND COMPLETE TECHNICAL PROPOSALS WHICH WERE REQUIRED TO ADDRESS EACH OF THE SOLICITATION'S EVALUATION FACTORS. AFTER AN EXAMINATION OF DCI'S PROPOSAL, WE SEE NOTHING UNREASONABLE IN THE NAVY'S DETERMINATION TO EXCLUDE IT FROM FURTHER CONSIDERATION. FOR EXAMPLE, UNDER THE CRITERION, "COMPREHENSION OF SPECIFICATION REQUIREMENTS," THE MOST IMPORTANT TECHNICAL CRITERION FOR PROPOSAL ACCEPTABILITY, AND ITS SUBFACTORS, DCI'S PROPOSAL ENTIRELY FAILED TO SUBSTANTIVELY ADDRESS THIS REQUIREMENT, UNDER WHICH OFFERORS WERE REQUIRED TO DEMONSTRATE THEIR UNDERSTANDING OF THE SCOPE OF WORK BY ILLUSTRATING THEIR PROPOSED ALLOCATION OF RESOURCES, INCLUDING STAFFING, SUPERVISION, VEHICLES AND EQUIPMENT, AND FACILITIES.

INSTEAD, DCI PRESENTED A CURSORY DISCUSSION (13 SENTENCES) OF ITS PROPOSED METHOD OF OPERATION WHICH PROPERLY PERTAINED TO THE CRITERION, "METHOD OF OPERATION," UNDER WHICH OFFERORS WERE REQUIRED TO DESCRIBE HOW THEIR PROPOSED ORGANIZATION WOULD MANAGE AND PERFORM THE REQUIREMENTS, INCLUDING INTERFACE WITH THE CURRENT GOVERNMENT-OPERATED CUSTODIAL PROGRAM, PLANS AND PROCEDURES TO ACCOMPLISH WORK REQUIREMENTS, WORK CONTROL AND SCHEDULING SYSTEM, QUALITY CONTROL AND OTHER MATTERS. THE NAVY CONSIDERED THIS CURSORY DISCUSSION VAGUE AND INCOMPLETE AND STATES THAT DCI'S FAILURE TO ADEQUATELY ADDRESS THESE TWO MAJOR TECHNICAL AREAS RESULTED IN THE FIRM RECEIVING VIRTUALLY NO CREDIT IN EITHER OF THESE AREAS AND RESULTED IN THE FIRM'S EXCLUSION FROM THE COMPETITIVE RANGE. AFTER REVIEWING THE SCORING, WE AGREE WITH THE NAVY.

DCI HAS NOT EXPLAINED WHY IT FAILED TO SUBSTANTIVELY ADDRESS THE MOST IMPORTANT TECHNICAL EVALUATION AREA AND WHY IT PRESENTED ONLY A CURSORY DISCUSSION OF ITS PROPOSED METHOD OF OPERATION, A SECOND MAJOR TECHNICAL AREA. APPARENTLY, DCI SIMPLY RELIED UPON ITS REPUTATION IN THE INDUSTRY AND ITS EXTENSIVE EXPERIENCE IN CUSTODIAL SERVICES RATHER THAN SUBMITTING A DETAILED TECHNICAL PROPOSAL FULLY RESPONSIVE TO THE SOLICITATION'S TECHNICAL EVALUATION CRITERIA. HOWEVER, AN AGENCY'S TECHNICAL EVALUATION IS DEPENDENT UPON THE INFORMATION FURNISHED IN THE PROPOSALS, AND THE BURDEN IS CLEARLY UPON THE OFFEROR TO SUBMIT AN INITIAL PROPOSAL THAT IS ADEQUATELY WRITTEN. SEVRITE INTERNATIONAL, LTD., B-187197, OCT. 8, 1976, 76-2 CPD PARA. 325. SINCE THE RFP CLEARLY SOUGHT A DETAILED TECHNICAL RESPONSE, WE THINK THAT DCI'S APPARENT RELIANCE ON ITS EXPERIENCE AND REPUTATION WAS MISPLACED. ACCORDINGLY, WE FIND THAT AN OVERALL VIEW OF DCI'S PROPOSAL DEMONSTRATES THAT THE NAVY REASONABLY FOUND THAT THE FIRM DID NOT MAKE THE EFFORT TO ADEQUATELY ADDRESS THE SOLICITATION'S REQUIREMENTS, AND THUS IT IS APPARENT THAT A VIRTUALLY NEW PROPOSAL WOULD HAVE BEEN NECESSARY. INFORMATICS, INC., B-194926, SUPRA. WE THEREFORE DENY THIS PROTEST GROUND.

NEXT, DCI ALLEGES THAT THE CONTRACTING AGENCY FAILED TO FOLLOW THE ANNOUNCED EVALUATION CRITERIA BY NOT AFFORDING SUFFICIENT WEIGHT TO DCI'S PRICE IN THE EVALUATION. THE FIRM'S POSITION IS WITHOUT MERIT. WE NOTE THAT, AS INDICATED ABOVE, DCI WAS NOT THE LOWEST-PRICED OFFEROR EVEN WHEN COMPARED TO FIRMS IN THE COMPETITIVE RANGE. FURTHER, THE PURPOSE IN HAVING PRICE AS AN EVALUATION FACTOR IN A NEGOTIATED PROCUREMENT IS TO INSURE THAT THE PRICES PROPOSED BY QUALIFIED OFFERORS WHO SUBMIT ACCEPTABLE PROPOSALS WILL BE TAKEN INTO ACCOUNT PRIOR TO MAKING OF AWARDS TO HIGHER PRICED OFFERORS ON THE BASIS OF TECHNICAL SUPERIORITY CONSIDERATIONS ALONE. THAT PURPOSE DOES NOT EXTEND TO CONSIDERING THE OFFERED PRICES OF FIRMS WHOSE PROPOSALS ARE WHOLLY UNACCEPTABLE. COMP.GEN. 1 (1973). MOREOVER, OUR REVIEW OF THE RECORD INDICATED THAT THE NAVY DID EVALUATE PROPOSALS IN ACCORDANCE WITH THE ANNOUNCED EVALUATION CRITERIA.

FINALLY, DCI ALSO COMPLAINS THAT IT WAS NOT PROVIDED DURING THE BID PROTEST PROCEEDINGS WITH TECHNICAL AND COST EVALUATION MATERIALS THAT THE NAVY CONSIDERED PRIVILEGED. DCI'S RECOURSE, HOWEVER, IS TO PURSUE THE DISCLOSURE OF THE INFORMATION BY THE NAVY THROUGH THE FREEDOM OF INFORMATION ACT (FOIA), 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, SPECTRUM LEASING CORP., B-213647.3, SUPRA AND WHILE INFORMATION IN AN AGENCY REPORT WHICH THE AGENCY BELIEVES IS EXEMPT FROM DISCLOSURE UNDER FOIA WILL BE CONSIDERED BY OUR OFFICE IN REACHING A DECISION ON THE MERITS OF THE PROTEST, WE WILL NOT DISCLOSE IT OUTSIDE THE GOVERNMENT. INTASA, B-191877, NOV. 15, 1978, 78-2 CPD PARA. 347. FURTHER, ALTHOUGH THE COMPETITION IN CONTRACTING ACT OF 1984 (CICA), 31 U.S.C. SEC. 3551-3556 (SUPP. III, 1985) ALSO REQUIRES EACH FEDERAL AGENCY TO PROVIDE AN INTERESTED PARTY ANY DOCUMENT RELEVANT TO A PROTESTED PROCUREMENT ACTION THAT WOULD NOT GIVE THE PARTY A COMPETITIVE ADVANTAGE AND THAT THE PARTY IS OTHERWISE AUTHORIZED BY LAW TO RECEIVE, THE CONTRACTING AGENCY CLEARLY HAS THE PRIMARY RESPONSIBILITY FOR DETERMINING WHICH DOCUMENTS ARE SUBJECT TO RELEASE UNDER CICA. THEREFORE, WE WILL NOT QUESTION THE AGENCY DETERMINATION IN THE ABSENCE OF A SHOWING OF FRAUD OR BAD FAITH ON THE PART OF CONTRACTING OFFICIALS. EMPLOYMENT PERSPECTIVES, B-218338, JUNE 24, 1985, 85-1 CPD PARA. 715. NO SUCH SHOWING HAS BEEN MADE HERE.

THE PROTEST IS DENIED.

/1/ OUR OFFICE, HOWEVER, HAS BEEN FURNISHED THE EVALUATION REPORTS AND OTHER RELEVANT EXHIBITS CONCERNING THIS PROTEST BY THE NAVY, WHICH STILL HAS NOT SELECTED A SUCCESSFUL OFFEROR. ALTHOUGH WE ARE UNABLE TO REVEAL TECHNICAL AND COST DETAILS CONCERNING THE EVALUATION, OUR DECISION IS BASED ON A REVIEW OF ALL RELEVANT REPORTS AND EXHIBITS SUBMITTED TO OUR OFFICE BY THE NAVY.

/2/ THESE ARE ESSENTIALLY THE ONLY POINT SCORES THE NAVY HAS REVEALED TO THE PROTESTER IN THE AGENCY REPORT ON THE PROTEST FILED WITH OUR OFFICE.

/3/ EVEN A PROPOSAL WHICH IS TECHNICALLY ACCEPTABLE OR SUSCEPTIBLE OF BEING MADE ACCEPTABLE MAY BE EXCLUDED FROM THE COMPETITIVE RANGE IF, RELATIVE TO ALL PROPOSALS RECEIVED, IT DOES NOT STAND A REAL CHANCE FOR AWARD. HITTMAN ASSOCIATES, INC., 60 COMP.GEN. 120 (1980), 80-2 CPD PARA. 437.