B-210204, MAY 16, 1983

B-210204: May 16, 1983

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DIGEST: ALTERATION OF EVALUATION PLAN AFTER RECEIPT OF INITIAL PROPOSALS BY ISSUANCE OF AN AMENDMENT TO THE REQUEST FOR PROPOSALS WAS PROPER SINCE ALL OFFERORS WERE INFORMED OF THE CHANGE AND GIVEN AN OPPORTUNITY TO RESTRUCTURE THEIR TECHNICAL PROPOSALS TO REFLECT THE CHANGE. THE RFP STATES THAT "OFFERS WHICH MEET THE MANDATORY REQUIREMENTS WILL BE EVALUATED ON THE BASIS OF LOWEST OVER-ALL COST TO THE GOVERNMENT. IT ALSO DISCLOSES THAT THE EVALUATION WILL BE CONDUCTED IN TWO STEPS. THE FIRST STEP CONSISTS OF TECHNICAL EVALUATION AND LIFE CYCLE REVIEW AND THE SECOND IS A PRICE COMPETITION. CONTRACTOR EXPERIENCE (20 PERCENT) WE BELIEVE THAT THIS EVALUATION AND SELECTION PLAN WAS AMBIGUOUS: IT IS NOT CLEAR WHETHER AWARD WOULD BE MADE TO THE LOWEST PRICED TECHNICALLY ACCEPTABLE OFFEROR UNDER A PROCEDURE SIMILAR TO TWO-STEP FORMAL ADVERTISING.

B-210204, MAY 16, 1983

DIGEST: ALTERATION OF EVALUATION PLAN AFTER RECEIPT OF INITIAL PROPOSALS BY ISSUANCE OF AN AMENDMENT TO THE REQUEST FOR PROPOSALS WAS PROPER SINCE ALL OFFERORS WERE INFORMED OF THE CHANGE AND GIVEN AN OPPORTUNITY TO RESTRUCTURE THEIR TECHNICAL PROPOSALS TO REFLECT THE CHANGE.

GALLER ASSOCIATES, INC.:

GALLER ASSOCIATES, INC. PROTESTS THE AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS NO. DLAH00-82-R-0220 ISSUED BY THE DEFENSE LOGISTICS AGENCY (DLA) FOR AUTOMATIC DATA PROCESSING SYSTEMS ENGINEERING AND TECHNICAL SUPPORT SERVICES. GALLER CONTENDS THAT DLA IMPROPERLY ALTERED THE EVALUATION SCHEME AFTER THE RECEIPT AND EVALUATION OF INITIAL PROPOSALS. WE DENY THE PROTEST.

THE RFP STATES THAT "OFFERS WHICH MEET THE MANDATORY REQUIREMENTS WILL BE EVALUATED ON THE BASIS OF LOWEST OVER-ALL COST TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED." IT ALSO DISCLOSES THAT THE EVALUATION WILL BE CONDUCTED IN TWO STEPS. THE FIRST STEP CONSISTS OF TECHNICAL EVALUATION AND LIFE CYCLE REVIEW AND THE SECOND IS A PRICE COMPETITION. THE RFP LISTS THE FOLLOWING EVALUATION FACTORS: F

(A.) PRICE/COST (20 PERCENT) (B.) TECHNICAL APPROACH AND DELIVERY (20 PERCENT) (C.) MANAGEMENT (20 PERCENT) (D.) CONTRACTOR TEAM PERSONNEL (20 PERCENT) (E.) CONTRACTOR EXPERIENCE (20 PERCENT)

WE BELIEVE THAT THIS EVALUATION AND SELECTION PLAN WAS AMBIGUOUS: IT IS NOT CLEAR WHETHER AWARD WOULD BE MADE TO THE LOWEST PRICED TECHNICALLY ACCEPTABLE OFFEROR UNDER A PROCEDURE SIMILAR TO TWO-STEP FORMAL ADVERTISING, OR TO THE OFFEROR THAT RECEIVED THE HIGHEST RATING WITH COST WEIGHTED 20 PERCENT AND TECHNICAL FACTORS WEIGHTED 80 PERCENT.

PRIOR TO THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS, DLA ISSUED FOUR AMENDMENTS TO THE SOLICITATION. AMENDMENT NO. 4, WHICH CONSISTED OF QUESTIONS AND ANSWERS, STATED THAT OF THE FIVE EVALUATION FACTORS, "THE LATER FOUR CRITERIA APPLY TO THE FIRST STEP OF THE EVALUATION," AND "PRICE/COST WILL APPLY TO BOTH THE FIRST AND SECOND STEPS." THE AMENDMENT ALSO ADVISES THAT "THE SECOND STEP WILL CONSIDER ONLY OFFERORS THAT HAVE SUCCESSFULLY PASSED THE FIRST STEP AND SHALL CONSIST OF A PRICE COMPETITION."

THIS AMENDMENT TEMPORARILY RESOLVED THE AMBIGUITY THAT EXISTED IN THE RFP BY ESTABLISHING THAT THOSE OFFERORS DEEMED TECHNICALLY ACCEPTABLE IN STEP ONE WOULD PARTICIPATE IN STEP TWO, A COMPETITION BASED EXCLUSIVELY ON COST. RELATIVE TECHNICAL MERIT WOULD NOT BE A FACTOR IN SELECTING ACCEPTABLE OFFEROR WITH THE LOWEST LIFE CYCLE COST.

NEARLY 4 MONTHS AFTER THE SUBMISSION OF INITIAL PROPOSALS, BUT PRIOR TO THE SUBMISSION OF BEST AND FINAL THE CONTRACTOR. RATHER, AWARD WOULD BE MADE TO THE TECHNICALLY OFFERS, DLA ISSUED AMENDMENT NO. 5. THE AMENDMENT CANCELED THE "EVALUATION OF OFFERS" SECTION OF THE RFP AND THE PORTIONS OF AMENDMENT NO. 4 CONCERNING THE EVALUATION SCHEME AND REPLACED THESE PROVISIONS WITH A NEW "EVALUATION OF OFFERS" SECTION. THE NEW PROVISION DISCLOSED THAT THE CRITERIA PRICE/COST, TECHNICAL APPROACH AND DELIVERY, MANAGEMENT, TEAM PERSONNEL, AND EXPERIENCE "WILL BE RATED FOR EACH PROPOSAL AND THE PROPOSAL THAT RECEIVES THE HIGHEST TOTAL RATING WILL BE SELECTED FOR AWARD." THE PROVISION ALSO ADVISED THAT:

"THE FIRST STEP OF THE EVALUATION SHALL CONSIST OF TECHNICAL EVALUATION AND LIFE CYCLE COST REVIEW. *** OFFERS WHICH ARE DETERMINED TO BE TECHNICALLY ACCEPTABLE AND WITHIN THE COMPETITIVE RANGE WILL BE REQUESTED TO PARTICIPATE IN THE SECOND STEP OF THE EVALUATION. *** STEP TWO OF THE EVALUATION WILL UTILIZE THE RESULTS OF THE TECHNICAL EVALUATION OF STEP ONE ALONG WITH THE OFFERORS' PRICES AND COSTS SUBMITTED FOR STEP TWO EVALUATION."

IN OUR VIEW, AMENDMENT NO. 5 CHANGED THE EVALUATION METHODOLOGY FROM A PROCESS SIMILAR TO TWO-STEP FORMAL ADVERTISING TO A MORE CONVENTIONAL NEGOTIATION TECHNIQUE IN WHICH A COMPETITIVE RANGE IS ESTABLISHED, NEGOTIATIONS ARE CONDUCTED, BEST AND FINAL OFFERS ARE SUBMITTED, AND AWARD IS MADE ON THE BASIS OF COST AND TECHNICAL RATINGS. GALLER ARGUES THAT THIS CHANGE IN THE METHOD OF EVALUATION AND AWARD, ISSUED 4 MONTHS AFTER THE SUBMISSION OF INITIAL PROPOSALS, IS IMPERMISSIBLE.

WE FIND, HOWEVER, THAT DLA'S ACTIONS WERE PROPER. A CONTRACTING AGENCY HAS BROAD DISCRETION TO ESTABLISH AN EVALUATION PLAN THAT IS BEST SUITED TO ITS NEEDS. AUGMENTATION, INC., B-186614, SEPTEMBER 10, 1976, 76-2 CPD 235. ALTHOUGH IT IS IMPROPER TO ANNOUNCE ONE EVALUATION PLAN IN A SOLICITATION AND THEN FOLLOW ANOTHER IN THE ACTUAL EVALUATION, AN AGENCY MAY DEPART FROM THE ANNOUNCED EVALUATION PLAN IF IT INFORMS ALL OFFERORS OF THE CHANGE AND PROVIDES THEM AN OPPORTUNITY TO RESTRUCTURE THEIR PROPOSALS IN LIGHT OF THE NEW EVALUATION SCHEME. SEE COLUMBIA RESEARCH CORPORATION, 61 COMP.GEN. 194 (1982), 82-1 CPD 8.

IN THIS CASE, AMENDMENT NO. 4 ESTABLISHED A TWO-STEP EVALUATION WITH AWARD ULTIMATELY TO BE MADE ON THE BASIS OF COST. INITIAL PROPOSALS WERE SUBMITTED ON THIS BASIS. WE FIND NOTHING IMPROPER IN DLA'S SUBSEQUENTLY ALTERING THE EVALUATION APPROACH BY PROVIDING FOR AWARD BASED ON AN OVERALL RATING FOR COST AND TECHNICAL FACTORS. DLA INFORMED THE OFFERORS OF THE CHANGE BY ISSUING AMENDMENT NO. 5 PRIOR TO THE CUT-OFF DATE FOR BEST AND FINAL OFFERS. SINCE IN NEGOTIATED PROCUREMENTS OFFERORS MAY REVISE ANY ASPECT OF THEIR PROPOSALS UNTIL NEGOTIATIONS ARE CLOSED, ELECTRONIC COMMUNICATIONS, INC., 55 COMP.GEN. 636 (1976), 76-1 CPD 15, GALLER COULD HAVE REVISED ITS PROPOSAL TO REFLECT THE NEW EVALUATION SCHEME HAD IT CHOSEN TO DO SO. SEE SYSTEMS GROUP ASSOCIATES, INC., B-198889, MAY 6, 1981, 81-1 CPD 349. ALTHOUGH GALLER MAY HAVE BEEN INCONVENIENCED BY THE CHANGE OR MAY, FOR ITS OWN REASONS, PREFER THE METHOD OF EVALUATION DESCRIBED BY AMENDMENT NO. 4, IT HAS NOT DEMONSTRATED THAT DLA UNREASONABLY EXERCISED ITS DISCRETION TO ESTABLISH OR ALTER AN EVALUATION PLAN. WE FIND NO BASIS UPON WHICH TO QUESTION THE AWARD.

THE PROTEST IS DENIED.

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