B-241748, Mar 1, 1991, 91-1 CPD 232

B-241748: Mar 1, 1991

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PROCUREMENT - Bid Protests - Non-prejudicial-allegation - GAO review PROCUREMENT - Competitive Negotiation - Offers - Evaluation errors - Non- prejudicial allegation DIGEST Although agency did not evaluate proposals in accordance with the stated evaluation criteria because an unannounced evaluation factor was point scored. The protest is denied where the record shows that the protester was not prejudiced by the agency's improper evaluation. Inasmuch as the protester's relatively lower technical score was attributable to its low scores for the identified evaluation factors. Danville protests that the State Department did not evaluate proposals in accordance with the stated evaluation criteria and that the evaluation was biased.

B-241748, Mar 1, 1991, 91-1 CPD 232

PROCUREMENT - Bid Protests - Non-prejudicial-allegation - GAO review PROCUREMENT - Competitive Negotiation - Offers - Evaluation errors - Non- prejudicial allegation

DIGEST

Attorneys

Danville-Findorff, Ltd.:

Danville-Findorff, Ltd. /1/ protests the award of a contract to Suomen Teollisuuden Vartionti (STV) under request for proposals (RFP) No. 234-275S, issued by the Department of State, for guard services at the American Embassy in Helsinki, Finland. Danville protests that the State Department did not evaluate proposals in accordance with the stated evaluation criteria and that the evaluation was biased.

We deny the protest.

The RFP contemplated the award of a combined fixed price contract for "standard" guard services and a time and materials contract for "additional or emergency" guard services for a base year and 4 option years. Offerors were informed that award would be made to the responsible offeror whose offer was the most advantageous to the government, price and other factors considered, and that in determining which offer was the most advantageous the agency would use a numerical formula in which technical factors were weighted 60 points and price was weighted 40 points. The RFP set forth the following technical evaluation criteria:

A. Technical Approach (20 points)

1. Management plan

2. Knowledge and familiarity in performing these services

B. Technical Personnel (20 points)

1. Key personnel

2. Other personnel

C. Experience and Past Performance (20 points)

The RFP provided that options would be evaluated by adding the offeror's price for all options to its price for the basic requirement and that the low priced offer would receive 40 points while the other priced offers would receive a percentage of the maximum available points based upon a formula stated in the solicitation. /2/ Of the five offers received in response to the RFP, only the offers of Danville and STV were found to be in the competitive range. Discussions were conducted, and revised proposals received from each offeror. The final evaluation of revised offers was as follows: Offeror Tech Score Price Score Price Total STV 60 35 $3,361,984 /3/ 95 Danville 51 40 $2,940,548 /4/ 91

The State Department awarded a contract to STV based upon its higher overall point score and technical superiority, and this protest followed.

Danville protests that the agency did not evaluate proposals in accordance with the stated evaluation criteria. We agree. The agency in its evaluation of proposals only assigned 40 points to the technical evaluation criteria identified in the RFP as being worth 60 points and assigned another 20 points to an unannounced criterion, "business management approach." /5/ Thus, the agency's evaluation was not consistent with the identified evaluation criteria. Nevertheless, we deny Danville's protest because the record shows that the protester was not prejudiced by the agency's improper evaluation. See Merrick Engineering, Inc., B-238706.3, Aug. 16, 1990, 90-2 CPD Para. 130.

Danville's technical proposal was downgraded an average 8.5 points out of 40 available points under the experience and technical personnel criteria because the firm and the proposed local manager lacked experience in providing guard or security services. On the other hand, Danville received an average technical score of 19.5 of the 20 points available under the business management approach factor. Thus, Danville's relatively lower technical score was based upon the evaluation of the protester's proposal under the identified evaluation factors and not under the unstated business management approach factor. If the offerors' proposals were rescored solely under the stated evaluation criteria, STV would still be the highest scored offeror with a combined technical/price score of 95 points while Danville would only have received a score of 91.5. /6/ From our review of the offerors' proposals, we find that the agency reasonably concluded that STV's higher technical scores reflected actual technical superiority. STV's proposal showed significant security and guard service experience throughout Finland while Danville's proposal showed only minimal related experience. The protester, which is a newly formed corporation, has no security or guard services experience. Danville-Findorff, Inc., with which Danville is affiliated, is primarily a construction firm with limited experience, primarily involving the security of construction sites in the United States. Also, Danville's proposed local manager, who would be responsible for the firm's daily performance of the contract, had extremely limited experience as a member of the Finnish armed services performing unspecified "base guard duties" for a period of 6 months. Under the circumstances, the agency properly determined in accordance with the RFP evaluation formula, which accounted for Danville's low price, that STV was entitled to the award on the basis of its high total point score. See Harrison Systems Ltd., 63 Comp.Gen. 379 (1984), 84-1 CPD Para. 572.

Danville also contends that the agency's evaluators were not impartial since the two evaluators were in charge of the guard services at the embassy and favored STV, the incumbent contractor. There is no evidence in the record of bias or bad faith on the part of the evaluators, and Danville offers no such evidence. Prejudicial motives will not be attributed to contracting officials on the basis of unsupported allegations, inference or supposition. Systems Processes Eng'g Corp., B-232100, Nov. 15, 1988, 88-2 CPD Para. 478.

Danville finally contends that since it is an American corporation it should receive an evaluation preference as a domestic source under the Balance of Payments program. This contention has no merit. Danville's offer is for "foreign services," not "domestic services" as defined under the Balance of Payments program. See Federal Acquisition Regulation (FAR) Sec. 25.301. Therefore, Danville is not entitled to any evaluation preference under this program. See FAR Sec. 25.303.

Further, we find that Danville is not entitled to an evaluation preference for United States contractors for local guard contracts abroad under the diplomatic security program.

The Foreign Relations Authorization Act, Fiscal Years 1990 and 1991, Pub.L. No. 101-246, Sec. 136, 104 Stat. 33 (1990), requires that the State Department give a preference to "United States persons" in the competition for local guard services abroad. In pertinent part, the Act defines a "United States person" to be an American corporation that was incorporated or legally organized in the United States two years prior to the issuance of the solicitation and has performed security services similar in complexity to the services solicited. As noted above, Danville is a newly formed corporation with no security or guard services experience.

The protest is denied.

/1/ Danville-Findorff, Ltd. is a newly-formed American corporation, which is affiliated with Danville-Findorff, Inc., an existing American corporation. Danville-Findorff, Inc. holds 17 percent of the stock in Danville-Findorff, Ltd. while two Finnish citizens hold the remaining 83 percent of the stock.

/2/ Offerors' price scores were determined according to the following formula: Lowest offeror's price divided by offeror's price multiplied by 40 points = offeror's price score.

/3/STV's offer was made in Finnish markkas, which were converted at the rate of 3.7 markkas to the dollar.

/4/ The State Department states that Danville's revised price was $2,836,119. We find from our review, however, that Danville's total revised price was actually $2,940,548.

/5/ Under business management approach, the agency evaluated the offeror's financial condition and the experience of its management (as opposed to technical) personnel.

/6/ This "best case scenario" recalculation of the Danville's technical/price score is based upon the scoring sheets of the agency's two evaluators. This recalculation assumes that Danville receives the maximum 40 points for its low priced offer and that 8.5 points (the average point deduction by the evaluators from the RFP listed technical criteria: experience and technical personnel) are deducted from the 60 points available for the technical evaluation criteria, to arrive at a total score of 91.5. This is a "best case scenario" because the evaluators deducted an average 8.5 points from these criteria when they were only weighted 40 points. STV's technical score would not change since it received perfect scores for the technical evaluation factors.

/1/ To the extent that BFD protests the Coast Guard's employment of Hamilton Sorter catalog numbers in the RFQ or that the specifications were otherwise overly restrictive, this contention is untimely under our Bid Protest Regulations, since it was not raised prior to the closing date for receipt of proposals. 4 C.F.R. Sec. 21.2(a)(1) (1990); Herman Miller, Inc., B-234704, July 10, 1989, 89-2 CPD Para. 25.