Matter of: Advanced Technology and Research Corporation File: B-257451.2 Date: December 9, 1994

B-257451.2: Dec 9, 1994

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Protest against award to other than the low-cost offeror is denied where award to higher-rated. Higher-cost offeror was permissible under solicitation and agency reasonably determined technical superiority justified payment of small cost premium. Which were of equal importance. Were the most important factors for award. Past performance was the least important evaluation factor. The RFP stated the following: ". . . relative cost will be considered in the ultimate award decision. Cost/price proposals will be analyzed to assess realism and probable cost to the Government. Five proposals were received by the November 12 closing date. Were found to be technically acceptable and were included in the competitive range for purposes of discussions.

Matter of: Advanced Technology and Research Corporation File: B-257451.2 Date: December 9, 1994

Protest against award to other than the low-cost offeror is denied where award to higher-rated, higher-cost offeror was permissible under solicitation and agency reasonably determined technical superiority justified payment of small cost premium.



Advanced Technology and Research Corporation (ATR) protests the award of a contract to MiTech, Incorporated under request for proposals (RFP) No. DTFH61-94-R-00008, issued by the Department of Transportation, Federal Highway Administration (FHWA), Office of Safety and Traffic Operations for technical support services for the Federal Outdoor Impact Laboratory (FOIL) located at the Turner-Fairbank Highway Research Center in McLean, Virginia.[1] ATR protests the technical and cost evaluation of proposals.

We deny the protest.

The RFP, issued on October 12, 1993, as a small business set-aside competitive procurement, contemplated award of a time-and-materials contract to the offeror submitting the proposal determined to be the most advantageous to the government. The RFP provided three evaluation factors for award (technical, cost, and past performance) and stated that technical and cost, which were of equal importance, were the most important factors for award. Past performance was the least important evaluation factor. Section M of the RFP listed the factors for evaluation of the "[o]fferor's demonstration of technical competence to perform the work required by the RFP" including adequacy of the principal investigator[2] and proposed support team (in terms of expertise and education), background and experience of the firm in conducting work of the type required, and capability of the offeror to meet the continued schedule of the FOIL without interruption or delay.

Regarding the evaluation of cost proposals, the RFP stated the following:

". . . relative cost will be considered in the ultimate award decision. Cost/price proposals will be analyzed to assess realism and probable cost to the Government. The proposed costs may be adjusted, for the purpose of evaluation, based upon the results of the cost realism assessment."

Five proposals were received by the November 12 closing date. Three proposals, including ATR's and MiTech's, were found to be technically acceptable and were included in the competitive range for purposes of discussions. ATR's initial proposal received the lowest technical score and offered the lowest cost of the proposals included in the competitive range. MiTech's initial proposal, which received the highest technical ranking, was ranked substantially higher than the two other offers and offered the second-lowest cost. Discussions were then held and best and final offers (BAFO) received. The evaluation of BAFOs did not result in any change to the initial technical rankings of the offers. ATR's BAFO was slightly lower priced than MiTech's BAFO. The agency reports that MiTech's superior technical proposal offers 14.5 percent more technical worth for a higher cost of 3.8 percent. Concluding that MiTech offered the proposal most advantageous to the government based upon the determination that MiTech's proposal's substantial technical superiority outweighed the slight cost premium over ATR's lowest-cost proposal, the agency awarded the contract to MiTech on May 27. This protest followed.

ATR is the incumbent contractor for these services; the firm received the prior award under the Small Business Administration's section 8(a) program. As the incumbent, ATR contends that its proposal should have received the highest technical score because it is the only firm with recent experience at the FOIL facility and that it should have received the award since it submitted the lowest-cost proposal. ATR specifically protests the agency's technical evaluation of proposals, arguing that the agency applied evaluation criteria not set forth in the RFP and ignored relevant information in the protester's proposal.

Evaluating the relative merits of competing proposals is a matter within the discretion of the contracting agency since the agency is responsible for defining its needs and the best method of accommodating them, and it must bear the burden resulting from a defective evaluation. Simms Indus., Inc., B-252827.2, Oct. 4, 1993, 93-2 CPD Para. 206. Consequently, we will not reevaluate proposals but instead will examine the agency's evaluation to ensure that it was reasonable and consistent with the stated evaluation factors. Chaffins Realty Co., Inc., B-247910, July 8, 1992, 92-2 CPD Para. 9. The fact that the protester disagrees with the agency's judgment does not render the evaluation unreasonable. As discussed below, we have examined the agency's evaluation here and conclude that it was both reasonable and consistent with the stated evaluation criteria.

ATR contends that its proposal was wrongfully downgraded under unstated evaluation criteria, namely, the language abilities of its Junior Engineer, and a perceived lack of detail and innovation in its proposal concerning the firm's capability to provide the required services (e.g., regarding placement of its personnel during periods of closure of the FOIL facility and proposed research at the FOIL facility).

The record does not support the protester's allegation that its proposal was downgraded for its Junior Engineer's language abilities. Although the agency raised a concern with ATR as to the ability of its proposed Junior Engineer to effectively communicate (due to a concern about possible limitations to his English-speaking abilities) with others, the record shows that the agency did in fact, find this individual acceptable and that language had an insignificant, if any, effect upon the proposal's technical score.

ATR's contention that its proposal should have been scored higher than the awardee's because it was the incumbent contractor while MiTech had not previously performed the FOIL contract is predicated on ATR's belief that only firms with experience at the actual FOIL site should be rated highly. However, the RFP's technical evaluation factors provided for consideration of relevant, similar experience, i.e., the offeror was to demonstrate its proposed personnel's ability "to meet all the requirements of the RFP's Statement of Work with regard to the operation and maintenance of the FOIL" and the firm's experience was to be "of the type required to fulfill the needs of this requirement, particularly with regard to facility operations, maintenance, and management."

Although ATR was credited for its successful FOIL contract performance, MiTech's proposal was rated higher than ATR's proposal in the experience area because the evaluators found far more detail in MiTech's proposal regarding offeror knowledge, qualifications, and experience. In this regard, MiTech received high marks for its experience as the contractor performing substantially similar work in maintaining and operating a crash test facility for the Federal Aviation Administration. Each of the evaluators commented upon the detailed, thorough presentation of MiTech's proposal which illustrated that firm's experience, study of the FOIL facility to be serviced, and innovation in its technical proposal of continuing and future research endeavors relating to the operation, maintenance, and improvement of the FOIL activities. ATR's proposal, on the contrary, was found to lack specific detail and innovation regarding ongoing and future research efforts and capabilities despite the firm's knowledge of the agency's stated interest in promoting research products and advancing the studies of the FHWA at the FOIL facility.

Our review of the record supports the agency's conclusion that MiTech's proposal was far more detailed and that this greater detail provided an appropriate basis for scoring the two proposals differently. Further, the agency's needs in terms of advancing FOIL research and operations were evident from the RFP's terms (expressed not only in the RFP's introductory remarks, stated above, but also in the individual performance task requirements for the development of new and improved testing procedures). Since the RFP advised offerors of the importance of such research, and the RFP specifically instructed offerors to submit detailed proposals to perform the RFP's requirements, we believe the agency's lower scoring of the protester's proposal in this area was reasonable.[3] See Landis & Gyr Powers, Inc., B-250354, Jan. 26, 1993, 93-1 CPD Para. 66.

Similarly, the evaluation of ATR's proposal noted a lack of detail regarding retention of qualified personnel during the contemplated closure of the FOIL facility for approximately 2 months of each year. The agency had concerns about the adequacy of ATR's general response in its revised proposal that the firm would find work on other company projects for its FOIL staff during the shutdown period.[4] ATR's response stated that the firm could not yet define the other projects to which all of the personnel would be assigned. Comparatively, the agency found MiTech's proposal in this area more detailed and informative with specific information concerning placement of staff in related issue-area projects; it also proposed relevant training of personnel during this period to directly benefit the work of the FOIL facility. Given the agency's experience during the protester's prior contract of loss of valuable, trained personnel, we see nothing unreasonable with this aspect of the evaluation.[5]

ATR next challenges the agency's evaluation of cost proposals on the bases that the agency unreasonably questioned the firm's initially proposed 2.5- percent escalation rate and improperly "pressured" the firm to apply a 4- percent escalation rate in its BAFO, and that the agency failed to take into account the firm's alternate proposal of a lower-cost Junior Engineer.

We have reviewed the record of the agency's cost evaluation and conclude that it was reasonable and consistent with the RFP's cost realism provisions. The 4-percent rate suggested by the agency as more realistic (particularly, in terms of personnel retention) than the protester's initial lower rate was based upon a comparison to similar agency contracts, recent published rate surveys, and Defense Contract Audit Agency recommended rates for service contracts in the same region. The agency's review of this information showed that escalation rates slightly higher than 4 percent were realistic and reasonable for the RFP's services. Further, there is nothing in the record that shows that the protester was unreasonably "pressured" into the increase; the matter was appropriately discussed by the agency. See The Warner/ Osborn/G&T Joint Venture, B-256641.2, Aug. 23, 1994, 94-2 CPD Para. 76.

As for the contention that the agency improperly precluded the protester from reducing its price by failing to take into account the firm's lower- cost proposal of an alternate engineer, the record supports the reasonableness of the agency's concern that the "lower cost" proposal based on this individual would in fact increase the overall cost to the agency due to the individual's lesser degree of experience and a need for additional training. In any event, the claimed difference in cost was not considered material by the agency, nor is it by our Office, since the savings claimed by the protester for this individual in terms of overall proposal costs is minimal, at best.

ATR in its protest and correspondence responding to the agency's reports on the protest also sets forth multiple other contentions regarding the propriety of the award determination. Many of these, however, such as that the agency predetermined the award prior to evaluation of proposals, permitted "outside influence" to affect the award determination, exercised bias against ATR, and purposefully tried to keep the protester's costs from falling significantly lower than the awardee's, are based on mere inference or supposition without any evidentiary support. Additionally, several of ATR's contentions are based on factually incorrect assumptions. For instance, the protester suggests that because the agency pointed out weaknesses in the firm's response to a particular RFP task, that task must have been assigned a disproportionate weight compared to other tasks; the record, however, shows that there was no such disproportion in weight among the tasks. Based on the record, we find these contentions lack sufficient factual and legal basis, and will not further consider them. Robert Wall Edge--Recon., 68 Comp.Gen. 352 (1989), 89-1 CPD Para. 335. Additionally, several of the protester's challenges, such as those against the RFP's application of a cost ceiling in the evaluation of cost proposals or the terms of certain tasks delineated in the RFP, are untimely filed since they concern alleged solicitation improprieties that should have been filed prior to the initial closing or, where the improprieties were subsequently incorporated into the RFP, prior to the next closing date for the receipt of proposals. 4 C.F.R. Sec. 21.2(a) (1994).

The protest is denied.

1. The FOIL is a research facility to conduct full-scale automobile crash testing and was designed to study the crash's effect on the driver, vehicle, and roadside safety hardware. The RFP's statement of work states, "[m]ore importantly, [the FOIL] is used for research leading to new and improved testing and analysis procedures which are intended to provide a greater degree of safety on our Nation's highways."

2. The RFP's personnel requirements included the proposal of a Test Director, Simulation Engineer (either of which was also to function as the Principal Investigator), a Junior Engineer, Senior Technician, Junior Technician, and administrative support.

3. The protester generally contends in its comments responding to the agency reports that this lack of detail in its proposal was not meaningfully discussed with the firm prior to BAFOs. Agencies are not obligated to afford all-encompassing discussions; agencies are only required to lead offerors into the areas of their proposals considered deficient. We do not find that the agency's assessment of a relative weakness due to a lack of technical detail in the protester's proposal compared to the awardee's proposal relates to the type of technical deficiency required to be discussed with the firm. See Stone & Webster Eng'g Corp., B-255286.2, Apr. 12, 1994, 94-1 CPD Para. 306.

4. Although the protester contends that the agency ignored the firm's response to this concern in its revised proposal (because the information was not repeated in the firm's BAFO), the record shows that the agency did in fact evaluate the protester's response. The agency, however, concluded that the response failed to present sufficient detail to alleviate the agency's concerns in this regard or to justify a change in the proposal's technical score.

5. ATR contends that its BAFO score also should have increased in this area since it otherwise satisfied the agency's concern regarding retention of personnel by increasing its proposed wage escalation rate from 2.5 percent to 4 percent. The agency determined, and we believe reasonably so, that this proposed wage rate increase alone was insufficient to increase ATR's technical proposal score regarding personnel retention since, as ATR concedes, the firm's prior contract practice was to propose wages acceptable to the agency, but to only pay its personnel a portion of that proposed.

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