B-243875, Sep 11, 1991

B-243875: Sep 11, 1991

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Contention that evaluation was unreasonable is sustained where the protester's proposal was downgraded in areas where the two successful proposals are similarly deficient but the record contains no evidence that the similar deficiencies in the successful proposals were recognized. Protest is sustained where agency awards contracts on the basis of initial proposals without discussions and the record shows that the protester's acceptable proposal offered lower prices on 4 of 11 line items. Since agency may not accept initial proposal without discussions where it will not result in the lowest overall cost to the government. 3. The General Accounting Office will not review protester's allegations of collusive bidding by awardees to determine if a violation of antitrust laws has occurred since jurisdiction over possible criminal violations is vested in the Attorney General and the federal courts.

B-243875, Sep 11, 1991

DIGEST: 1. Contention that evaluation was unreasonable is sustained where the protester's proposal was downgraded in areas where the two successful proposals are similarly deficient but the record contains no evidence that the similar deficiencies in the successful proposals were recognized, and, in fact, provides no discussion whatsoever of the strengths or weaknesses of the successful proposals. 2. Protest is sustained where agency awards contracts on the basis of initial proposals without discussions and the record shows that the protester's acceptable proposal offered lower prices on 4 of 11 line items, since agency may not accept initial proposal without discussions where it will not result in the lowest overall cost to the government. 3. The General Accounting Office will not review protester's allegations of collusive bidding by awardees to determine if a violation of antitrust laws has occurred since jurisdiction over possible criminal violations is vested in the Attorney General and the federal courts.

Attorneys

TFA, Inc.:

TFA, Inc. protests the award of contracts to SWCA Environmental Consultants and High Desert Research Collective, under request for proposals (RFP) No. 8000-90-23, issued by the U.S. Forest Service, Department of Agriculture, for a survey of Mexican Spotted Owls, and other owls, living in 11 distinct areas in and adjacent to national forests in southern Utah. TFA argues that the Forest Service selected SWCA and High Desert because those firms performed similar surveys for the agency during 1990, and that the agency failed to follow the evaluation criteria in the RFP and otherwise erroneously evaluated TFA's proposal.

We sustain the protest.

BACKGROUND

On March 13, 1991, the Forest Service issued the RFP seeking offerors to conduct a survey of the number of Mexican Spotted Owls (and other owls) in 11 distinct areas. Each survey location constitutes a separate line item in the RFP. Four of the surveys involve recreating a 1990 poll conducted in portions of the Dixie, Fishlake, Toiyabe, and Manti-LaSal National Forests in southern Utah. In addition, the RFP also requires seven new surveys: four surveys to be conducted in other portions of the national forests named above, and three surveys in other areas. The RFP, which seeks firm, fixed-price offers, requests a separate price for each of the 11 line items and reserves the right to consider multiple awards.

The statement of work (SOW) in the RFP includes a detailed protocol of nocturnal outings for conducting owl surveys. During these outings, surveyors are to use tapes of previously-recorded owl hoots, or vocal imitations thereof, to establish contact with owls while traversing preestablished calling routes. Upon making contact, surveyors are required to attempt to obtain a recording of the owl's response, to enter the owl's location in a logbook, to attempt to identify the sex of the owl, and, when possible, to use "mousing" to locate pairs of owls, or nests and roost areas. /1/

Six offerors submitted proposals in response to the RFP. TFA and one other offeror proposed to perform all 11 of the surveys covered by the solicitation; two other offerors proposed to perform only one or two of the surveys; and the two successful offerors, SWCA and High Desert, proposed to perform 5 and 6 line items, respectively. There was no overlap between the line items covered by the SWCA and High Desert proposals: together, the two proposals covered all 11 surveys.

Upon review, the evaluation panel found the proposals submitted by TFA, High Desert, and SWCA to be technically acceptable; SWCA received the highest technical score, while High Desert was second, and TFA was third. Based on the conclusion that the proposals submitted by High Desert and SWCA were the most advantageous to the government and offered the lowest cost, the contracting officer elected not to hold discussions with the offerors in the competitive range. Instead, the agency awarded contracts based on initial proposals to SWCA and High Desert for the portions of the required work for which they submitted offers. This protest followed.

DISCUSSION

TFA protests that the agency failed to scrutinize the SWCA and High Desert proposals as closely as the agency scrutinized TFA's proposal. support of this argument, TFA cites several criticisms of its proposal that it says should also have been applied to the proposals submitted by SWCA and High Desert. TFA claims that the reason for such alleged preferential treatment is that SWCA and High Desert were the firms that performed the 1990 owl surveys and the Forest Service wanted to use the same firms it used the year before. TFA also argues that the agency evaluation of its proposal failed to follow the evaluation criteria and was erroneous.

As TFA correctly argues, evaluations and award decisions in negotiated procurements must be in accordance with the terms of the RFP. Environmental Techs. Group, Inc., B-235623, Aug. 31, 1989, 89-2 CPD Para. 202. In reviewing protests against allegedly improper evaluations, we examine the record to determine whether the agency's judgment was reasonable and consistent with stated evaluation criteria and applicable statutes and regulations. ESCO, Inc., 66 Comp.Gen. 404 (1987), 87-1 CPD Para. 450. Based on our review of TFA's proposal, as well as the proposals submitted by SWCA and High Desert, the evaluation materials, the agency report, and TFA's response, we find that the evaluation conclusions lacked a rational basis, and that the agency's award decisions violated the statutory requirement that agencies not award contracts based on initial proposals without ensuring that the proposals offer the lowest cost to the government. These findings are discussed in detail below.

Evaluation of TFA's Proposal

TFA cites several instances where its proposal is criticized by the evaluation panel, while similar deficiencies in the awardees' proposals appear to have been overlooked. /2/As discussed below, the agency's evaluation record is so glaringly inadequate that it is difficult to tell how the proposals were evaluated. Nevertheless, we have reviewed each of TFA's claims in this regard, and in some areas, have found evidence of disparate evaluation of the proposals.

For example, the Forest Service notified TFA by letter dated April 26, that, among other things, TFA's proposal was deficient because it "did not list an adequate description of the survey equipment that would normally be used in performing this type of survey work." /3/ Although TFA specifically challenged this conclusion in its initial protest, the agency report, in essence, merely repeated the criticism and added no further substance. As TFA argues in its comments-- and as is clear from our own review of the three proposals included in the competitive range-- TFA's proposal provides the same level of detail and information about the use of equipment during surveys as the two successful proposals.

Although the fact that the two successful proposals each contained the same deficiency as TFA, does not-- standing alone-- render the evaluation unreasonable, we cannot determine from the evaluation materials presented in the agency report whether the two successful proposals were similarly downgraded. Specifically, the Forest Service has provided no discussion whatsoever of the strengths and weaknesses of the two successful proposals, only a discussion of those proposals not accepted for award. This lack of documentation of the agency's award decision makes it impossible to determine whether the Forest Service fairly concluded that the two awardees were technically superior, or even what considerations formed the basis for its award of contracts to the two technically superior, but higher-priced, offerors.

Federal Acquisition Regulation (FAR) Sec. 15.612(d)(2) requires that the documentation supporting selection decisions show the relative differences among proposals; their strengths, weaknesses and risks; and the basis and reasons for the decisions. This required explanation provides protesters and this Office a basis upon which to judge the reasonableness of the agency's decision and, ultimately, its compliance with the procurement statutes and regulations. Where, as here, the record does not support the agency's technical evaluation, or even its selection decision, the evaluation is unreasonable. Amtec Corp., B-240647, Dec. 12, 1990, 90-2 CPD Para. 482, recon. denied, B-240647.2, Feb. 26, 1991, 91-1 CPD Para. 211.

Award Based on Initial Proposals

The contracting officer apparently believed that TFA was the lowest priced offeror on only the first and fourth line items (described by the Forest Service as surveys A and D). In fact, TFA also submitted the lowest price for line items B and C. /4/ Thus, for 4 of the 11 line items, TFA was the low-priced offeror; nevertheless, the contracting officer, without holding discussions, awarded contracts to the two higher- rated offerors based on their initial proposals.

Under the Competition in Contracting Act of 1984, 41 U.S.C. Sec. 253b(d)(1)(B) (1988), an agency may make award on the basis of initial proposals where the solicitation advises offerors of that possibility and the competition or prior cost experience demonstrates that acceptance of an initial proposal will result in the lowest overall cost to the government. Where, however, it appears that acceptance of an initial proposal will not result in the lowest overall cost to the government, the agency is not free to award contracts based on initial proposals, but instead must conduct discussions in an attempt to obtain the lowest overall cost or to otherwise determine the proposal most advantageous to the government. /5/ Training and Info. Servs., Inc., 66 Comp.Gen. 327 (1987), 87-1 CPD Para. 266.

We fail to understand the contracting officer's statement in the record that award to SWCA and High Desert resulted in the lowest overall cost to the government. The record clearly indicates that award to TFA on the 4 of 11 line items where it submitted the lowest price could have resulted in a savings of approximately 10 percent of the total price paid for the surveys. Under these circumstances, the contracting officer, before awarding a contract for these line items to an offeror other than TFA, was required by statute to hold discussions with competitive range offerors and give them a chance to submit best and final offers. Instead, the contracting officer, in essence, conducted an impermissible cost/technical tradeoff based on initial proposals.

Collusive Bidding

TFA also alleges that SWCA and High Desert engaged in collusion in the preparation of their offers. TFA makes this claim because, in its view, SWCA and High Desert-- the firms that performed the four surveys in 1990-- appear to have divided the RFP's surveys into two approximately equal groupings. Specifically, SWCA proposed to perform surveys A, D, G, J and K; while High Desert proposed to perform surveys B, C, E, F, H and I. As stated above, in no instance did SWCA and High Desert propose to perform the same survey.

Collusion occurs when: (1) an offeror has, for the purpose of restricting competition, consulted, communicated, or agreed with any other offeror or competitor relating to (i) prices in its proposal, (ii) intention to submit a proposal, or (iii) methods or factors used to calculate the prices in the proposal; (2) the prices in the proposal have been or will be knowingly disclosed by the offeror, directly or indirectly, to any other offeror or competitor before the proposal due date or contract award; or (3) an attempt has been or will be made by the offeror to induce any other concern to submit or not to submit a proposal for the purpose of restricting competition. See FAR Sec. 52.203-2; King-Fisher Co., B-228316; B-228309, Oct. 13, 1987, 87-2 CPD Para. 353.

Under 41 U.S.C. Sec. 253b(e), contracting officers are required to report evidence of suspected antitrust violations, such as collusive bidding, to the Attorney General for review. FAR subpart 3.3 elaborates further on this requirement, and specifically directs contracting officers to bring such matters to the attention of the Assistant Attorney General, Antitrust Division, Department of Justice. FAR Sec. 3.303(f).

When allegations of collusion are raised in a protest, we do not review them to determine if an actual violation of the antitrust laws has occurred, since jurisdiction over possible criminal violations is vested in the Attorney General and the federal courts. Columbus Marble Works, Inc., B-193754, Aug. 21, 1979, 79-2 CPD Para. 138. However, we have recognized that such allegations should be considered by the contracting officer in the context of a responsibility determination, International Alliance of Sports Officials, B-211831, Mar. 6, 1984, 84-1 CPD Para. 271, and should be considered for referral to the Attorney General. Columbus Marble Works, Inc., supra. Since the surveys required by this contract have already been performed, it is the contracting officer's responsibility here to consider whether sufficient evidence of collusion exists to warrant a referral to the Attorney General. In addition, there is no barrier to the protester itself referring the information to the Attorney General. Id.

CONCLUSION AND RECOMMENDATION

For the reasons set forth above, we find the Forest Service conducted an unreasonable evaluation of technical proposals and violated the statutory prohibition on awarding contracts based on initial proposals-- i.e., without discussions-- to other than the offeror proposing the lowest overall cost to the government.

Subsequent to the filing of this protest by TFA, the Forest Service determined in accordance with 31 U.S.C. Sec. 3553(d)(2)(A)(ii) (1988) that urgent circumstances required the agency to proceed with these owl surveys because the surveys need to be completed during the summer months when the Forest Service states the potentially endangered Mexican Spotted Owls are most easily detected. Since the surveys are now mostly completed, termination of the awards and reevaluation is not feasible. However, a portion of the line items contain options for additional performance during the 1992 surveying season. We recommend that the Forest Service refrain from exercising these options, and instead conduct a new procurement for the 1992 effort. In addition, we find that TFA is entitled to recover its proposal preparation costs and the costs of filing and pursuing its protest. 4 C.F.R. Sec. 21.6(d) (1991). TFA should submit its claim for such costs directly to the agency. We sustain the protest. The Honorable Edward Madigan

Secretary of Agriculture

Mr. Secretary:

Enclosed is a copy of our decision of today sustaining the protest filed by TFA, Inc. against the award of contracts to SWCA, Inc. Environmental Consultants and High Desert Research Collective under request for proposals (RFP) No. 8000-90-23, issued by the U.S. Forest Service, Department of Agriculture, for surveys of Mexican Spotted Owls, and other owls, in 11 areas in and adjacent to 4 national forests in southern Utah.

We have sustained the protest because we find that the Forest Service conducted an unreasonable evaluation of technical proposals and violated the statutory prohibition at 41 U.S.C. Sec. 253b(d)(1)(B) (1988) on awarding contracts based on initial proposals-- i.e., without discussions- - to other than the offeror proposing the lowest overall cost to the government.

Since the agency made a determination pursuant to 31 U.S.C. Sec. 3553(d)(2)(A)(ii) (1988) that urgent circumstances required it to proceed with these surveys, which are now mostly completed, termination of the contracts and reevaluation is not feasible. Accordingly, we recommend that the Forest Service refrain from exercising any options under these contracts, and instead conduct a new procurement for any surveys anticipated during the 1992 survey season. We also find that the protester is entitled to recover its proposal preparation costs and the costs of filing and pursuing its protest.

Since the enclosed decision contains a recommendation for corrective action, we direct your attention to 31 U.S.C. Sec. 3554(e)(1), which requires that the head of the procuring activity responsible for the solicitation report to our Office if the agency has not fully implemented our recommendations within 60 days of receipt of our decision. Please advise us in any case of the action taken on the recommendation.

/1/ "Mousing," as the name suggests, is the use of mice as a lure. The assumption is that an adult male owl will take amouse to a nesting female, or directly to young owls, thus revealing the location of the nest.

/2/ Immediately after filing its protest here, TFA apparently filed a Freedom of Information Act (FOIA) request for copies of the proposals of the two awardees. For reasons that are unclear, the Forest Service provided the SWCA and High Desert proposals to TFA in response to that FOIA request. Our Office generally does not provide protesters with proposals submitted by other parties except where a protective order has been issued, and individuals admitted to the protective order agree that no dissemination or improper use of protected material will be made in the future. See Bid Protest Regulations, 56 Fed.Reg. 3,759 (1991) (to be codified at 4 C.F.R. Sec. 21.3(d)).

/3/ This criticism was also one of the eight remarks noted about TFA's proposal in the evaluation summary provided with the agency report.

/4/ The Forest Service awarded surveys B and C-- the resurvey of the Fishlake and Manti-Lasal National Forest areas polled in 1990-- to High Desert, which submitted one price for the two line items. High Desert's combined price of $80,181.13 is higher than the total of the separate prices proposed by TFA: $39,287.50 for line item B and $40,580.83 for line item C. Thus, TFA bid a total of $79,868.33.

/5/ This requirement was recently rescinded for procurements covered by Title 10 of the United States Code. Specifically, 10 U.S.C. Sec. 2305(b)(4)(A) was amended by the National Defense Authorization Act for Fiscal Year 1991, Pub.L. 101-510, Sec. 802(d)(3)(A), 104 Stat. 1485, 1589 (1990), to delete the requirement that award based on initial proposals must be made to the lowest-priced offeror. See Raytheon Co. - Recon., B-240333.2, Mar. 28, 1991, 91-1 CPD Para. 334. To date, no similar change has been made to the corresponding statute in Title 41 governing procurements made by civilian agencies.