B-241056.3, Jan 7, 1991, 90-2 CPD 15

B-241056.3: Jan 7, 1991

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Protest against technical evaluation of protester's proposal is untimely where protester is advised of specific deficiencies in its proposal at debriefing. Higher-cost offeror was proper where price and technical factors were of equal importance and where agency reasonably determined that the technical advantage associated with the proposal was worth the difference in cost. An agency is not required to equalize competition with respect to an advantage accruing to an offeror due to its prior involvement in related contracts provided that such advantage is not the result of unfair government action. The stated evaluation factors were technical. The combined scores of management and technical were to result in a merit rating.

B-241056.3, Jan 7, 1991, 90-2 CPD 15

PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - 10 day rule - Adverse agency actions DIGEST: 1. Protest against technical evaluation of protester's proposal is untimely where protester is advised of specific deficiencies in its proposal at debriefing, but does not file protest concerning these matters until more than 10 working days after the debriefing. Offer by protester, in its initial protest, to provide point-by-point rebuttal to evaluation does not constitute protest of these specific deficiencies. PROCUREMENT - Competitive Negotiation - Contract awards - Administrative discretion - Cost/technical tradeoffs - Technical superiority 2.Award to higher-rated, higher-cost offeror was proper where price and technical factors were of equal importance and where agency reasonably determined that the technical advantage associated with the proposal was worth the difference in cost. PROCUREMENT - Competitive Negotiation - Competitive advantage - Contractors - Prior contract 3. An agency is not required to equalize competition with respect to an advantage accruing to an offeror due to its prior involvement in related contracts provided that such advantage is not the result of unfair government action.

Attorneys

Sach Sinha and Associates, Inc.:

Sach Sinha and Associates, Inc. (SSA) protests the award of a contract to Honeywell, Inc. under request for proposals (RFP) No. DAAA21-90-R-0016, issued by the Army Armament, Munitions and Chemical Command, Picatinny Arsenal, for technical services for the development, testing, and production of an improved volcano anti-tank mine incorporating a redesigned electronics assembly. SSA challenges the rating it received and also the award to a higher-cost offeror.

We deny the protest in part and dismiss it in part.

The RFP provided for the award of a cost-plus-fixed-fee contract to the offeror capable of meeting the requirements on a timely and cost effective basis. The RFP specifically provided that the government reserved the right to award a contract to other than the lowest price offeror or the offeror with the highest merit rating. The stated evaluation factors were technical, management, and cost. The combined scores of management and technical were to result in a merit rating. The RFP stated that the technical area was significantly more important than management and that cost would be subject to a cost realism analysis. The RFP, in descending order of importance, listed electronics design, development system and electronic sensor, algorithm performance, and 3 other areas as technical factors. The RFP further provided that the merit rating was of equal importance to probable cost.

The Army received four proposals. The proposals were evaluated and assigned a merit rating. SSA received a merit rating of 38.32 and Honeywell a merit rating of 83.66. The highest number of points possible was 100.

All proposals were found technically acceptable and included in the competitive range. However, all proposals were found to have significant weaknesses. Discussions were held with all offerors, and the firms were subsequently requested to submit best and final offers (BAFOs). After final evaluation, Honeywell had a merit rating of 95.5 at a cost of $4,351,014. SSA had a merit rating of 61.0 at a cost of $3,128,197.

Based on the technical evaluation of BAFOs, it was determined to be in the best interest of the government to award the contract to Honeywell because of the technical superiority of Honeywell's proposal. Award was made to Honeywell on August 31, 1990. On October 1, SSA was given a debriefing by the agency. SSA filed this protest with our Office on October 3.

SSA, in its initial protest to our Office, argued that the evaluation of its BAFO was flawed and that it was prepared to offer a point-by-point rebuttal to the final evaluation of its proposal. In its report on the protest, filed in our Office on November 1, the agency argued that the protest should be dismissed because SSA failed to cite any specific instance in which the evaluation of its technical proposal was incorrect. The agency also defended its evaluation of SSA's proposal.

In its comments on the agency report filed with our Office on November 20, SSA discussed in detail areas of its proposal that, according to information it received at the debriefing, the Army found deficient in some respect. SSA disputes the Army's conclusion regarding some of those deficiencies and contends that others could have been resolved after contract award.

We do not find the initial protest sufficient to constitute a timely protest against the specific deficiencies in the firm's technical proposal of which SSA was advised at the debriefing on October 1. During the debriefing, the Army discussed in detail the scoring of SSA's proposal and very specifically explained to SSA exactly why SSA's BAFO was determined to be technically weak in certain areas. Our Bid Protest Regulations require that protests against other than alleged deficiencies which are apparent from the solicitation be filed within 10 working days after the basis for protest is known or should have been known. 4 C.F.R. Sec. 21.2(a)(1) (1990). SSA was advised of the specific deficiencies in its proposal at the October 1 debriefing and knew the specific bases for protest at that time. Since SSA waited more than 10 working days after the debriefing to raise specific objections to the Army evaluation, these issues are dismissed as untimely. Bell Technical Operations Corp., B-225819; B-225819.2, May 21, 1987, 87-1 CPD Para. 534; Blue Cross-Blue Shield of Tennessee, B-210227, May 23, 1983, 83-1 CPD Para. 555.

SSA also contends that it should have been awarded the contract because it submitted a technically acceptable proposal at a lower cost than that of Honeywell.

In a negotiated procurement, the government is not required to make award to the firm offering the lowest price unless the RFP specifies that price will be the determinative factor. University of Dayton Research, Inst., B-227115, Aug. 19, 1987, 87-2 CPD Para. 178. Here, the RFP did not require award on the basis of the lowest cost, technically acceptable proposal. The RFP stated that merit rating and cost would have equal weight and that award would be made in the best interest of the government.

Since the RFP did not provide for award on the basis of the lowest priced technically acceptable proposal, the agency had the discretion to determine whether the technical advantage associated with Honeywell's proposal was worth its higher price, even where price and technical factors were of equal weight. See ADI Facilities Management, Inc., B-236122.2, Dec. 12, 1989, 89-2 CPD Para. 541. Award to a technically superior, higher-priced offeror is proper so long as that result is consistent with the evaluation criteria and the procuring agency has reasonably determined that the technical difference is sufficiently significant to outweigh the price difference. Id.

The Army found that, although SSA proposed a price 28 percent lower than Honeywell, its proposal was marginally acceptable, its approach had a high risk and was susceptible to cost growth. The evaluators found that SSA's proposed electronic design was generic, omitted required components and lacked detail and thus SSA did not show that its design would meet requirements. The evaluators also found that SSA's algorithm design theory in its BAFO conflicted with its original offer and its proposed sensor lacked specifics. Thus, SSA's proposal was considered to not offer a fully developed technical approach.

Honeywell's higher-priced proposal was given a 36 percent higher merit rating and was found technically superior by the agency. In contrast to SSA's offer, the Army found that Honeywell presented an algorithm design methodology and approach which demonstrated a high probability of meeting and exceeding the RFP requirements. For example, its sensor design was found highly producible and offered high expectation of performance. The record reasonably supports the Army's view that Honeywell's proposal was significantly superior to that offered by SSA and offset the lower price proposed by SSA. Thus, we find the Army reasonably concluded that Honeywell's higher-cost proposal offered the best value to the government.

SSA further argues that Honeywell had an inherent advantage in developing a technical proposal because of its prior involvement on related contracts.

There is no requirement that an agency equalizes competition with respect to advantages a contractor may have so long as the advantage does not result from unfair action by the government. See generally PECO Enters., Inc., B-232307, Oct. 27, 1988, 88-2 CPD Para. 398. There is nothing in the record to establish that the agency showed a particular preference for Honeywell or acted unfairly toward SSA.

Finally, SSA complains that the agency did not provide it prompt notification of the award. SSA contends that by failing to inform it of the award within 10 days of the award date, the agency denied it the opportunity to invoke the stay provisions of the Competition in Contracting Act of 1984, 31 U.S.C. Sec. 3553(d) (1988). While agencies are required to provide prompt notice of contract awards, we generally view delay in notifying unsuccessful offerors as a procedural defect that does not affect the validity of contract award. Vista Scientific Corp., B-231966.2, Dec. 27, 1988, 88-2 CPD Para. 625. In any event, since we have found the award decision reasonable, SSA was not harmed by this delay.

Accordingly, the protest is denied in part and dismissed in part.