B-240290, Nov 2, 1990, 90-2 CPD ***

B-240290: Nov 2, 1990

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PROCUREMENT - Competitive Negotiation - Offers - Evaluation errors - Non- prejudicial allegation DIGEST: Protest that damage caused by dropping furniture bid sample while it was in agency control created the deficiencies which ultimately resulted in determination of technical unacceptability is denied where the record clearly demonstrates that evaluators were notified of damage and instructed to disregard deficiencies thereby caused. The evaluation documents show that deficiencies noted were not the result of damage. Designe Tech contends that the defects cited by the GSA as warranting the determination that Designe Tech's proposal was technically unacceptable were principally the direct result of damage to its samples which occurred due to GSA mishandling.

B-240290, Nov 2, 1990, 90-2 CPD ***

PROCUREMENT - Competitive Negotiation - Offers - Evaluation errors - Non- prejudicial allegation DIGEST: Protest that damage caused by dropping furniture bid sample while it was in agency control created the deficiencies which ultimately resulted in determination of technical unacceptability is denied where the record clearly demonstrates that evaluators were notified of damage and instructed to disregard deficiencies thereby caused, and the evaluation documents show that deficiencies noted were not the result of damage.

Attorneys

Designe Tech:

Designe Tech protests the rejection of its proposal as technically unacceptable under request for proposals (RFP) No. FCNO-89-M601-N-1-18 90 issued by the General Services Administration (GSA) for executive contemporary, wood full panel, office furniture. Designe Tech contends that the defects cited by the GSA as warranting the determination that Designe Tech's proposal was technically unacceptable were principally the direct result of damage to its samples which occurred due to GSA mishandling.

We deny the protest.

The solicitation, issued November 17, 1989, sought offers for 34 items for delivery within three zones. Offerors were required to submit prices and descriptive data for all 34 items, and were informed that an aggregate award would be made for all items and all zones. The solicitation required offerors to submit four bid samples: item 6, an executive height L-unit workstation with adjustable keyboard shelf and either a left or a right L-unit; item 17, lateral file cabinet; item 20, a conference table; and item 34, an overhead storage unit. These samples were considered as representative of all of the items listed, and acceptance or rejection of the samples would be applicable to all of the items under the solicitation.

The solicitation provided for an evaluation procedure consisting of two steps. Initially, GSA's procurement, engineering and quality assurance personnel evaluated the samples to determine whether they conformed with all of the characteristics listed in the statement of work. If an initial bid sample failed this first evaluation, then offerors were given 15 business days to correct the deficiencies in the sample and to provide a corrected sample for reevaluation, or a letter that described the corrective action that would be taken to insure that the deficiencies did not occur during actual production if the deficiencies were of a limited nature. If a resubmitted sample also was found technically deficient, then it was subject to "final rejection." On the other hand, if the bid samples were found to be conditionally acceptable, then they would be evaluated by a user panel made up of customer agency representatives.

The initial technical evaluation began on January 30 and by a letter dated February 14 Designe Tech was advised of the deficiencies found in its bid samples, including 28 deficiencies under item 6; 17 deficiencies under item 17; 6 deficiencies under item 34; 2 deficiencies under item 20.

As a result of this initial evaluation, Designe Tech was required to resubmit corrected samples for items 6 and 17, and a certification letter for items 22 and 34 which outlined specifically how the firm would correct the deficiencies. The certification letter for items 22 and 34 was determined to be acceptable. On April 2, when GSA unpacked Designe Tech's resubmitted samples for the other two items, it was discovered that item 6, the executive workstation, was damaged, the origin of which is unknown. The contract specialist immediately notified the protester of the damage and provided it with an opportunity to repair it before the users panel convened to evaluate the product on April 4. Designe Tech personnel arrived at GSA on April 3 and attempted to repair the damage which appeared to have been caused by the item being dropped on the right side. GSA contracting officials assured the protester that all technical evaluators would be informed of the damages and directed not to discredit Designe Tech for them.

At the April 4 review of the samples the evaluators were informed of the obvious damages to Designe Tech's desk, and were told to disregard these damages, as well as any additional ones that they felt would have been caused by dropping the desk. The panel noted nine deficiencies in Designe Tech's resubmitted desk sample, three of which they determined could have been attributable to damage, but all of which were either similar or identical to those cited in the first evaluation. The contracting officer determined that the following six deficiencies were not attributable to the damage: (1) file drawer partition not easily removable; (2) file drawer and box drawers on desk do not stop on cushioned instops on suspensions; (3) top drawer in attachment does not operate smoothly; (4) end of wood base on approach side of desk attachment and panel not flush with end of panel; (5) front end (approach side of desk) of wood base on desk left end panel not flush with edge end panel; and (6) file drawer does not stop evenly on suspension at stops when pulled out to full extension. In addition to the deficiencies cited for the desk and attachment, the evaluation personnel found four new deficiencies on the resubmitted lateral file cabinet bid sample. These deficiencies were:(1) drawers do not stop evenly on suspension out stops when fully extended; (2) lock is difficult to latch; (3) drawer suspensions make a squeaking and scraping sound when opening and closing; and (4) two pulls provided per drawer are not acceptable because a single pull was required by the specifications.

On April 11, the contracting officer sent letters to conditionally acceptable offerors, Designe Tech included, requesting that best and final offers (BAFOs) be submitted by April 20. The contracting officer also sent a letter to Designe Tech notifying it of the deficiencies in items 6 and 17, and requesting that Designe Tech submit a certified letter identifying the corrective actions Designe Tech proposed to undertake. Designe Tech submitted the required letter outlining the steps it was prepared to take to ensure compliance with the specifications. The GSA engineering office reviewed this letter and determined that the majority of the solutions were unsatisfactory and as a result Designe Tech's proposal was rejected as technically unacceptable.

Designe Tech filed a protest in our Office challenging the agency's rejection of its proposal as technically unacceptable. Designe Tech alleges that the deficiencies in its desk sample that were cited by the GSA were the direct and exclusive result of the damage done to its sample by the GSA. The protester alleges that this problem was compounded by the fact that the contracting officer failed to inform the technical evaluators of the damage, and refused to allow Designe Tech to submit a new and undamaged sample. /1/ In its comments to the agency report, Designe Tech also challenges the agency's determination that its lateral file is technically unacceptable and alleges that those deficiencies probably were the result of it being damaged as well.

We are not persuaded that the deficiencies found in Designe Tech's resubmitted samples which led to the rejection of its proposal as technically unacceptable were the direct and exclusive result of the damage. The protester's allegations in this regard constitute a challenge to the agency's technical evaluation. Our Office will review an allegedly improper technical evaluation to determine whether the evaluation was fair and reasonable and consistent with the evaluation criteria. International Television Prods., B-233147, Dec. 28, 1988, 88-2 CPD Para. 639.

As a result of our review of the technical evaluation materials, we conclude that Designe Tech's proposal was reasonably determined to be technically unacceptable because its samples failed to comply with the specifications, and such nonconformances were not the result of the damage sustained to its desk sample. As a general matter, the record reveals that not only were the technical evaluators informed of the damage, and instructed specifically not to downgrade the protester's sample for deficiencies which might have been the result of the damage, but, also, the evaluation reflects these instructions.

The protester responds to each cited deficiency of its desk sample and essentially disputes the GSA's conclusion that the deficiencies were not caused by the damage. Designe Tech explains that the problems with the drawers and separation of the parts were caused when the unit was dropped because this twisted the desk wedging in drawers and caused the ends to be misaligned. The protester alleges that when its personnel completed the repairs, the contracting officer stated that everything appeared to be fine, and that it was only later that any deficiencies were found. Designe Tech contends that this shows there were no real deficiencies.

GSA provided Designe Tech with three separate opportunities to comply with the sample requirement, the initial sample submissions, resubmitted samples and then a certified letter to explain corrections, two of which had no connection with the damaged desk sample. Regardless of what the contracting officer's cursory review of the desk revealed, the later evaluation by the appropriate technical personnel is the relevant evaluation for technical acceptability reasons. Not only were there deficiencies in the desk sample, but also deficiencies were found in the lateral file, and as previously stated, in order to be technically acceptable, all four samples had to be acceptable. /2/ Moreover, a majority of the deficiencies cited in the resubmitted desk sample are the same or similar to those cited in the undamaged initial sample of the desk. The damage incurred to the desk does not account for some material problems which led to the rejection of Designe Tech's proposal, problems such as the improper dimensioning of materials or misalignment of components during assembly. For example, GSA found that the failure of the wood base to be flush with the end of the desk panel was due to the improper dimensioning of materials-- a workmanship problem-- not to damage. Similarly, the failure of desk drawers to stop on the cushioned instops, GSA attributes to a failure to properly install the drawer suspensions front-to-back in the desk pedestal during manufacture, and not to damage, since the drawer fronts were not misaligned and the drawers operated smoothly.

The protester contends that the deficiencies in the lateral file were all different than previously cited and that after the protester responded to each deficiency GSA provided an unreasonable response. We glean from these statements that Designe Tech is alleging bad faith on the part of the contracting officials. A protesting party must present convincing evidence that government officials had a specific and malicious intent to injure the protester, and we will not attribute unfair or prejudicial motives to the contracting agency on the basis of a protester's inference or supposition. Tri-Way Security Escort Serv., Inc.-- Recon., B-238115.2, Apr. 10, 1990, 90-1 CPD Para. 380. There is no evidence that the agency damaged Designe Tech's samples, nor that it gave the protester other than a fair and unprejudiced opportunity to correct the deficiencies in its bid samples.

Since we have found that the agency fairly and in good faith evaluated Designe Tech's proposal, and reasonably found it technically unacceptable, we deny the protest.

/1/ To the extent that Designe Tech is challenging the agency determination to refuse the firm's request to submit a new undamaged desk sample, its protest is untimely. Designe Tech was notified of the damage on April 2 and actually saw the damage on April 3, and was told at that time of the agency's position; therefore, to be timely, Designe Tech should have filed within 10 working days thereafter. 4 C.F.R. Sec. 21.2(a)(2)(1990).

/2/ Although the protester alleges that the deficiencies in its lateral file sample that were cited by GSA were probably the result of its being damaged, there is no indication or evidence that in fact any damage was done to the lateral file sample.