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B-175836, OCT 17, 1972

B-175836 Oct 17, 1972
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A CONTRACTING OFFICER IS JUSTIFIED IN CONSIDERING ONLY THAT AGENCY'S PRIOR EXPERIENCE WITH THE OFFERORS IN THE EVALUATION OF PAST PERFORMANCE/MANAGEMENT CRITERIA WHERE THERE IS AN URGENT NEED TO AWARD THE CONTRACT. EVEN WHERE A CONTRACT CONCEDEDLY SHOULD HAVE BEEN AWARDED ON THE BASIS OF PRICE ALONE. IT IS NOT ARBITRARY OR IN BAD FAITH TO CONTINUE THE PROCUREMENT BASED ON THE OLD CRITERIA WHERE AN URGENT REQUIREMENT EXISTED. INC.: REFERENCE IS MADE TO YOUR TELEFAX OF MAY 1. AUTHORIZING NEGOTIATION WHEN THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING. WAS FOR SHIELDED ROOM ENCLOSURES TO BE INSTALLED FOR THE U. SEPARATE PRICE AND TECHNICAL PROPOSALS WERE REQUIRED. AWARD WAS MADE TO THE RAY PROOF CORPORATION.

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B-175836, OCT 17, 1972

BID PROTEST - PAST PERFORMANCE CRITERIA - URGENT REQUIREMENT DECISION DENYING THE PROTEST OF FILTRON COMPANY, INC., AGAINST REJECTION OF ITS PROPOSAL UNDER AN RFP ISSUED BY THE U. S. ARMY ELECTRONICS COMMAND, WASHINGTON, D. C., FOR SHIELDED ROOM ENCLOSURES. A CONTRACTING OFFICER IS JUSTIFIED IN CONSIDERING ONLY THAT AGENCY'S PRIOR EXPERIENCE WITH THE OFFERORS IN THE EVALUATION OF PAST PERFORMANCE/MANAGEMENT CRITERIA WHERE THERE IS AN URGENT NEED TO AWARD THE CONTRACT. EVEN WHERE A CONTRACT CONCEDEDLY SHOULD HAVE BEEN AWARDED ON THE BASIS OF PRICE ALONE, IT IS NOT ARBITRARY OR IN BAD FAITH TO CONTINUE THE PROCUREMENT BASED ON THE OLD CRITERIA WHERE AN URGENT REQUIREMENT EXISTED.

TO FILTRON COMPANY, INC.:

REFERENCE IS MADE TO YOUR TELEFAX OF MAY 1, 1972, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST REJECTION OF YOUR PROPOSAL UNDER RFP DAAB09-72-R-0036, ISSUED MARCH 29, 1972, BY THE UNITED STATES ARMY ELECTRONICS COMMAND, WASHINGTON, D. C.

THE SOLICITATION, ISSUED PURSUANT TO 10 U.S.C. 2304(A)(2), AUTHORIZING NEGOTIATION WHEN THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING, WAS FOR SHIELDED ROOM ENCLOSURES TO BE INSTALLED FOR THE U. S. ARMY STRATEGY AND TACTICS ANALYSIS GROUP (STAG). SEPARATE PRICE AND TECHNICAL PROPOSALS WERE REQUIRED. WHILE YOU SUBMITTED THE LOW PRICE PROPOSAL OF $61,283, AWARD WAS MADE TO THE RAY PROOF CORPORATION, THE ONLY OTHER OFFEROR, AT A PRICE OF $65,000, ON THE BASIS OF ITS HIGHER PROPOSAL EVALUATION SCORE. YOU PROTESTED ON THE GROUND THAT SINCE YOUR PROPOSAL WAS TECHNICALLY ACCEPTABLE, AWARD TO THE HIGHER PRICED OFFEROR WAS NOT IN THE BEST INTERESTS OF THE GOVERNMENT.

THE RFP PROVIDED THAT THE "AWARD TO BE MADE WILL BE BASED ON THE BEST OVERALL PROPOSAL WITH CONSIDERATION GIVEN TO TECHNICAL PROPOSAL, DELIVERY, PRICE AND PAST PERFORMANCE/MANAGEMENT, IN THAT ORDER OF IMPORTANCE." EVALUATION OF THE TWO PROPOSALS RECEIVED RESULTED IN THE FOLLOWING POINT SCORES:

FILTRON RAY PROOF MAXIMUM

TECHNICAL PROPOSAL 46.62 46.82 50.0

DELIVERY 11.30 10.01 18.0

PRICE CONSIDERATION 17.7

PRICE PROPOSAL 15.00 14.14

USE OF GOVT. PROPERTY 2.70 2.70

PAST PERFORMANCE/MANAGEMENT 14.3

PAST PERFORMANCE 5.57 8.30

MANAGEMENT 4.50 6.00

85.69 87.97

SINCE RAY PROOF RECEIVED THE HIGHER SCORE AND THE CONTRACTING OFFICER DETERMINED THAT THE SUPERIORITY OF ITS PROPOSAL WARRANTED THE EXTRA COST INVOLVED, IT WAS PROPER UNDER THE TERMS OF THE SOLICITATION TO MAKE AWARD TO RAY PROOF NOTWITHSTANDING THE HIGHER PRICE. B-172261, SEPTEMBER 13, 1971 (51 COMP. GEN. 153). THIS IS IN ACCORD WITH THE WELL-SETTLED RULE THAT IN A NEGOTIATED PROCUREMENT A CONTRACT NEED NOT BE AWARDED TO THE LOWEST RESPONSIBLE OFFEROR AND FACTORS OTHER THAN PRICE MAY BE CONSIDERED. B-167374, OCTOBER 6, 1969; B-171349, NOVEMBER 17, 1971; ASPR 3-101.

HOWEVER, YOU CHALLENGE THE PAST PERFORMANCE/MANAGEMENT PORTION OF THE EVALUATION, CLAIMING THAT IT WAS WEIGHTED AGAINST YOU ON THE BASIS OF ERRONEOUS AND INCOMPLETE INFORMATION. YOU DISAGREE WITH THE ARMY'S STATEMENT THAT YOUR RATING WAS BASED ON STAG'S RECENT EXPERIENCE WITH YOUR COMPANY, CLAIMING THAT YOU HAD NO CONTRACT WITH STAG DURING THE TIME REFERRED TO. YOU ALSO TAKE EXCEPTION TO THE ARMY'S ASSERTION THAT YOU WERE DELINQUENT IN THE PERFORMANCE OF A PRIOR CONTRACT ADMINISTERED BY STAG.

IN VIEW OF YOUR ASSERTIONS, WE REQUESTED ADDITIONAL INFORMATION FROM THE ARMY. IN A SUPPLEMENTAL REPORT DATED AUGUST 1, 1972, THE CONTRACTING OFFICER STATES THAT STAG'S RECENT EXPERIENCE WITH FILTRON WAS NOT BASED ON A CONTRACT BETWEEN FILTRON AND STAG, BUT RATHER ON YOUR PERFORMANCE AS A SUPPLIER TO ANOTHER CONTRACTOR. THE REPORT STATES:

"FILTRON HAD BEEN THE SUPPLIER ON TWO (2) SEPARATE TASKS UNDER ENGINEERING CHANGE ORDERS TO A UNIVAC CONTRACT FOR POWER AND SIGNAL FILTERS. UNDER ONE TASK, DELIVERY WAS SCHEDULED 1 FEB 72, DELIVERY WAS MADE 17 APR 72; UNDER THE OTHER TASK, DELIVERY WAS SCHEDULED 9 NOV 71, DELIVERY WAS NOT MADE UNTIL MID-JANUARY 72. THE IMPACT OF THE LATE DELIVERIES WAS SUCH THAT IT CAUSED CONTINUED DISRUPTION OF GOVERNMENT WORK. ESCORTS WERE REQUIRED IN THIS SECURE INSTALLATION EACH TIME WORKERS ENTERED. NOT ONLY WAS THE GOVERNMENT DEPRIVED OF USE OF THE SYSTEM FOR WHICH THE FILTERS WERE INTENDED BUT ADDITIONAL MANPOWER HAD TO BE DIVERTED TO ESCORT ELECTRICIANS WHO INSTALLED THE FILTERS THAT WERE BEHIND SCHEDULE. IN ADDITION, ENVIRONMENTAL PROTECTION FOR A 2 MILLION DOLLAR CAPITAL INVESTMENT WAS DELAYED 45 DAYS BY THE LATE DELIVERIES. THESE POWER AND SIGNAL FILTERS WERE OF A SIMILAR NATURE AS THOSE REQUIRED FOR THE TWO SHIELDED ENCLOSURES UPON WHICH THE PROTESTOR WAS BIDDING. THEREFORE THEIR PERFORMANCE ON THESE TWO (2) TASKS WAS CONSIDERED TO BE UNSATISFACTORY BY USASTAG, AND IT IS APPARENT THAT WHILE THESE TASKS MAY NOT HAVE BEEN ENTERED INTO DURING THE SIX MONTHS PRECEDING THIS PROTESTED AWARD, PERFORMANCE UNDER THEM WAS STILL ON GOING DURING THAT SIX MONTH TIME SPAN."

THE REPORT ALSO STATES THE FOLLOWING WITH RESPECT TO YOUR PRIOR CONTRACT WITH STAG:

"THIS CONTRACT WAS PLACED ON 8 AUGUST 1968 BY THE WASHINGTON PROCUREMENT OFFICE WITH A SCHEDULED COMPLETION DATE OF 31 DECEMBER 1968. THERE WERE FIVE (5) REVISIONS TO THE COMPLETION SCHEDULE AND THE CONTRACT WAS FINALLY COMPLETED ON 1 FEBRUARY 1970. THE BASIS OF MY STATEMENTS AS TO THE PROTESTOR'S DELINQUENCIES AND MANAGEMENT WAS BASED ON A REVIEW OF THE CONTRACTUAL DOCUMENTATION AND INFORMATION FURNISHED BY THE CONTRACT ADMINISTRATOR OF THAT SPECIFIC CONTRACT. IT IS TRUE THAT THE CONTRACT WAS SATISFACTORILY COMPLETED; HOWEVER, THE FILE CONTAINED DOCUMENTATION CONCERNING THE CONTRACTOR'S DELINQUENT STATUS FROM TIME TO TIME AND ALSO EVIDENCE THAT THE PROTESTOR HAD BEEN SO ADVISED. THERE WAS ALSO DOCUMENTATION RELATIVE TO UNDEFINITIZED CHANGE ORDERS OVER 120 DAYS, DUE TO THE PROTESTOR'S FAILURE TO PROPERLY FURNISH NECESSARY DATA. THE FILE ALSO REVEALED DOCUMENTATION CONCERNING PROBLEMS ASSOCIATED WITH DEFECTIVE EQUIPMENT AND DELINQUENCY ***. THIS INFORMATION DOCUMENTED IN THE FILE WAS EXPANDED EVEN GREATER FROM THE INTERVIEW WITH MR. ROBERT KLASE, THE CONTRACT ADMINISTRATOR OF THIS CONTRACT. IN ADDITION, MR. A. BOUDREAU, THE COR UNDER THIS CONTRACT, SUPPLIED INFORMATION THAT IN SPITE OF THE CONTRACT BEING COMPLETED SATISFACTORILY, THE MANAGEMENT OF THE PROTESTOR UNDER THIS CONTRACT WAS CONSIDERED POOR."

YOU INDICATE IN YOUR LETTERS THAT YOU HAVE SATISFACTORILY COMPLETED CONTRACTS FOR THE DEPARTMENT OF STATE AND OTHER GOVERNMENT AGENCIES, THAT THIS INFORMATION WAS INCLUDED IN YOUR PROPOSAL, AND THAT THIS SHOULD HAVE BEEN CONSIDERED IN ACCORDANCE WITH THE RFP, WHICH STATED THAT IN EVALUATING PAST PERFORMANCE, "STRONG EMPHASIS WILL BE PLACED ON THE OFFEROR'S RECORD OF PAST PERFORMANCE FOR JOBS OF COMPARABLE COMPLEXITY" AND REQUIRED THE INCLUSION IN ALL PROPOSALS OF A SUMMARY OF SIMILAR OR RELATED WORK PERFORMED DURING THE PREVIOUS THREE YEARS. THE RECORD REVEALS THAT THE EVALUATION WAS BASED ON STAG'S EXPERIENCE WITH YOU, BUT THAT EVIDENCE OF YOUR PAST PERFORMANCE WITH OTHER AGENCIES WAS NOT CONSIDERED. THE CONTRACTING OFFICER JUSTIFIES LIMITING THE EVALUATION TO STAG'S OWN PRIOR EXPERIENCE WITH YOU ON THE BASIS OF LACK OF TIME TO INVESTIGATE FURTHER CONSIDERING THE URGENT NEED TO AWARD A CONTRACT. SHE POINTS OUT THAT RAY PROOF WAS ALSO EVALUATED ON THE SAME BASIS, AND THAT ADDITIONAL INFORMATION OBTAINED FROM THE STATE DEPARTMENT AFTER RECEIPT OF YOUR PROTEST LETTER WOULD NOT HAVE CHANGED THE RESULT OF THE EVALUATION.

WHILE IT APPEARS THAT THE RFP PROVISION COULD REASONABLY BE INTERPRETED TO COVER ALL RELATED PERFORMANCE DURING THE PREVIOUS THREE YEARS, SEE B- 172261, SUPRA, WE DO NOT BELIEVE THAT THE CONTRACTING OFFICER'S ACTIONS WERE IMPROPER UNDER THE CIRCUMSTANCES. IN VIEW OF THE URGENCY INVOLVED IN THE PROCUREMENT AND THE FACT THAT STAG HAD PRIOR EXPERIENCE WITH BOTH OFFERORS, WE THINK THE EVALUATION REASONABLY COULD BE BASED SOLELY ON THAT EXPERIENCE.

YOU CLAIM THAT THE 5.72 PERCENT DIFFERENCE BETWEEN YOUR PRICE AND RAY PROOF'S RESULTED IN ONLY A .0573 PERCENT DIFFERENCE IN EVALUATION POINTS. THE DIFFERENCE BETWEEN THE 15 POINTS AWARDED TO YOU AND THE 14.14 AWARDED TO RAY PROOF COMPUTES TO 5.72 PERCENT IN PRICE EVALUATION. THE METHOD USED TO EVALUATE PRICE REFLECTED THE RELATIVE DIFFERENCE BETWEEN THE TWO PROPOSALS FOR THE SPECIFIC EVALUATION FACTOR INVOLVED. ACCORDINGLY, WE CANNOT AGREE THAT THE EVALUATION WAS IMPROPER.

YOU ALSO REFER TO "UNUSUAL PROCEDURES" AND CITE AN ATTEMPT TO MAKE A SOLE -SOURCE AWARD TO RAY PROOF PRIOR TO ISSUANCE OF THIS SOLICITATION. THE CONTRACTING OFFICER HAS REPORTED THAT RAY PROOF WAS ORIGINALLY SOLICITED ON A SOLE-SOURCE BASIS BECAUSE IT WAS BELIEVED THAT IT WAS THE ONLY FIRM CAPABLE OF MEETING A REQUIRED DELIVERY DATE OF TWO WEEKS AFTER AWARD. WHEN THE CONTRACTING OFFICER SUBSEQUENTLY LEARNED THAT THE USING AGENCY WAS NO LONGER REQUIRING TWO WEEKS DELIVERY, THE SOLE SOURCE SOLICITATION WAS CANCELLED AND THIS COMPETITIVE RFP WAS ISSUED. WE THINK THIS ACTION WAS CLEARLY IN ACCORDANCE WITH APPLICABLE PROCUREMENTS LAWS AND REGULATIONS AND DOES NOT REPRESENT AN UNUSUAL OR IMPROPER PROCEDURE.

WHILE THE RECORD BEFORE US AFFORDS NO BASIS FOR SETTING ASIDE THE AWARD MADE, WE THINK THE ARMY WAS CORRECT IN RECOGNIZING, SUBSEQUENT TO ISSUANCE OF THE RFP, THAT IT WOULD HAVE BEEN MORE APPROPRIATE TO AWARD A CONTRACT ON THE BASIS OF PRICE ALONE SINCE ADEQUATE DETAILED SPECIFICATIONS WERE AVAILABLE. HOWEVER, SINCE A PRIOR SOLICITATION HAD BEEN CANCELLED AND AN URGENT REQUIREMENT EXISTED, WE CANNOT FIND THAT THE DECISION TO CONTINUE THE PROCUREMENT IN ACCORDANCE WITH THE PROVISIONS OF THE ISSUED RFP WAS ARBITRARY OR INDICATIVE OF BAD FAITH.

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