B-223999, NOV 9, 1986, 86-2 CPD 517

B-223999, NOV 9, 1986, 86-2 CPD 517

PROCUREMENT - COMPETITIVE NEGOTIATION - BEST/FINAL OFFERS - EVALUATION ERRORS - ALLEGATION SUBSTANTIATION - EVIDENCE SUFFICIENCY DIGEST: 1. THERE IS NO BASIS TO QUESTION CONTRACTING AGENCY'S TECHNICAL EVALUATION WHERE PROTESTER FAILS TO PROVIDE ANY SPECIFIC SUPPORT FOR GENERAL CONTENTION THAT ITS TECHNICAL PROPOSAL SHOULD HAVE RECEIVED A HIGHER SCORE. PROCUREMENT - COMPETITIVE NEGOTIATION - CONTRACT AWARDS - ADMINISTRATIVE DISCRETION - COST/TECHNICAL TRADEOFFS - TECHNICAL SUPERIORITY 2. CONTRACTING AGENCY'S SELECTION OF HIGHER PRICED, HIGHER RATED OFFEROR IS PROPER WHERE REQUEST FOR PROPOSALS PROVIDED THAT TECHNICAL FACTORS WERE MORE IMPORTANT THAN COST AND PROTESTER PROVIDES NO EVIDENCE TO SHOW PRICE/TECHNICAL TRADEOFF WAS UNREASONABLE. PROCUREMENT - CONTRACTOR QUALIFICATION - RESPONSIBILITY - CONTRACTING OFFICER FINDINGS - AFFIRMATIVE DETERMINATION - GAO REVIEW 3. GENERAL ACCOUNTING OFFICE WILL NOT CONSIDER PROTESTER'S CHALLENGE TO CONTRACTING AGENCY'S AFFIRMATIVE RESPONSIBILITY DETERMINATION WHERE PROTESTER MAKES ONLY GENERAL, UNSUPPORTED ALLEGATION THAT AWARDEE MAY NOT BE A RESPONSIBLE CONTRACTOR. PROCUREMENT - BID PROTEST - GAO PROCEDURES - PREPARATION COSTS PROCUREMENT - COMPETITIVE NEGOTIATION - OFFERS - PREPARATION COSTS 4. PROTESTER IS NOT ENTITLED TO RECOVER PROPOSAL PREPARATION COSTS OR COSTS OF FILING AND PURSUING PROTEST WHERE PROTEST IS FOUND TO BE WITHOUT MERIT.

TECHNOLOGY INCORPORATED:

TECHNOLOGY INCORPORATED (TI) PROTESTS THE AWARD OF A CONTRACT TO PROCESS CONTROL TECHNOLOGY, INC. UNDER REQUEST FOR PROPOSALS (RFP) NO. N68836-86-R -0010, ISSUED BY THE NAVY FOR A JET ENGINE TEST SYSTEM. TI CONTENDS THAT THE NAVY'S EVALUATION OF ITS TECHNICAL PROPOSAL WAS IMPROPER AND THAT AWARD TO A HIGHER RATED OFFEROR AT A HIGHER PRICE THAN OFFERED BY TI WAS NOT JUSTIFIED. WE DENY THE PROTEST.

THE RFP, ISSUED ON NOVEMBER 4, 1985, CALLED FOR FIXED-PRICE PROPOSALS FOR A JET ENGINE TEST SYSTEM, ASSOCIATED TRAINING, AND OPTIONAL EQUIPMENT FOR USE AT THE NAVAL AIR REWORK FACILITY, JACKSONVILLE, FLORIDA. THE RFP REQUIRED OFFERORS TO SUBMIT SEPARATE TECHNICAL AND PRICE PROPOSALS AND PROVIDED THAT TECHNICAL FACTORS WOULD BE APPROXIMATELY ONE AND A HALF TIMES AS IMPORTANT AS PRICE IN THE OVERALL EVALUATION. THE TECHNICAL FACTORS TO BE EVALUATED WERE TECHNICAL MERIT, TECHNICAL EXPERIENCE AND MANAGEMENT APPROACH.

TWO OFFERORS SUBMITTED PROPOSALS, PROCESS CONTROL AND TI. AFTER AN INITIAL EVALUATION OF THE TECHNICAL PROPOSALS ON MARCH 14, 1986, THE NAVY REVIEW PANEL FOUND THE PROPOSALS TECHNICALLY ACCEPTABLE. /1/ OF A TOTAL OF 100 POINTS, THE PANEL GAVE PROCESS CONTROL A SCORE OF 91.25 AND TI A SCORE OF 77.53.

ON JUNE 27, THE PANEL REVIEWED THE TECHNICAL PROPOSALS AGAIN IN LIGHT OF REPORTS PREPARED BY THE DEFENSE CONTRACT AUDIT AGENCY REGARDING THE OFFERORS' PROPOSED WORKHOURS AND MATERIALS. AS A RESULT OF THIS REVIEW, PROCESS CONTROL'S SCORE WAS REDUCED TO 90.75, TI'S SCORE TO 66.06. THE REVIEW PANEL'S SCORES WERE RECORDED ON SUMMARY SHEETS WITHOUT A NARRATIVE DESCRIPTION OF THE PANEL'S VIEWS. ACCORDING TO THE NAVY, AFTER THE SECOND EVALUATION ROUND, THE CHAIRMAN OF THE REVIEW PANEL MET WITH THE CONTRACTING OFFICER TO ADVISE HIM ORALLY OF THE SPECIFIC AREAS OF CONCERN IN THE PROPOSALS AND QUESTIONS TO BE POSED TO THE OFFERORS DURING DISCUSSIONS.

DISCUSSIONS WERE CONDUCTED WITH BOTH OFFERORS BY TELEPHONE ON JULY 9, FOLLOWED BY LETTERS LISTING THE AREAS TO BE ADDRESSED BY EACH OFFEROR IN ITS BEST AND FINAL OFFER. BOTH OFFERORS SUBMITTED BEST AND FINAL OFFERS BY JULY 21. AFTER REVIEWING THE FINAL TECHNICAL PROPOSALS, THE EVALUATION PANEL INCREASED PROCESS CONTROL'S SCORE SLIGHTLY FROM 90.75 TO 91 POINTS; TI'S SCORE WAS REDUCED FROM 66.06 TO 56.18 POINTS. PROCESS CONTROL'S FINAL PRICE WAS $2,642,526, A DECREASE OF APPROXIMATELY $41,000 FROM ITS INITIAL PROPOSAL. TI'S FINAL PRICE WAS $2,319,599, AN INCREASE OF APPROXIMATELY $200,000 FROM ITS INITIAL PROPOSAL. BECAUSE TI PROPOSED THE LOWER PRICE, IT RECEIVED THE MAXIMUM NUMBER OF POINTS FOR PRICE AVAILABLE UNDER THE EVALUATION SCHEME; PROCESS CONTROL RECEIVED A PROPORTIONATELY LOWER SCORE FOR PRICE. AFTER THE TECHNICAL AND PRICE SCORES WERE COMBINED USING A WEIGHTED FORMULA, PROCESS CONTROL'S FINAL SCORE WAS 87.11, TI'S SCORE, 73.71. AWARD THEN WAS MADE TO PROCESS CONTROL ON AUGUST 8. /2/

TI'S PRINCIPAL CONTENTION IS THAT THE NAVY REVIEW PANEL SCORED TI'S TECHNICAL PROPOSAL TOO LOW. TI FAILS TO DISCUSS SPECIFIC AREAS IN WHICH ITS PROPOSAL WAS IMPROPERLY EVALUATED, HOWEVER; TI STATES ONLY THAT IT IS WELL-QUALIFIED TO PROVIDE THE REQUIRED SYSTEM SINCE IT PROVIDED THE SYSTEM CURRENTLY IN PLACE AT THE USING ACTIVITY AND THAT THE NAVY IMPROPERLY DOWNGRADED ITS TECHNICAL PROPOSAL IN ORDER TO MAKE AWARD TO PROCESS CONTROL. WE FIND THAT TI HAS FAILED TO SHOW ANY BASIS ON WHICH TO QUESTION THE NAVY'S TECHNICAL EVALUATION. CONTRACTING AGENCIES HAVE A CONSIDERABLE RANGE OF DISCRETION IN CONDUCTING A TECHNICAL EVALUATION AND OUR REVIEW OF THEIR TECHNICAL DETERMINATIONS DOES NOT INCLUDE OUR CONDUCTING AN INDEPENDENT EVALUATION OF THE PROPOSALS, BUT IS LIMITED TO CONSIDERING WHETHER THE EVALUATION WAS FAIR AND REASONABLE AND CONSISTENT WITH THE EVALUATION CRITERIA. A&A REALTY, INC., B-222139, JUNE 20, 1986, 86-1 CPD PARA. 575. THE PROTESTER'S MERE DISAGREEMENT WITH THE AGENCY'S CONCLUSION DOES NOT ESTABLISH THAT THE EVALUATION WAS UNREASONABLE, PARTICULARLY WHERE, AS HERE, THE PROTESTER OFFERS NO SUPPORT FOR ITS POSITION BEYOND BARE ALLEGATIONS THAT ITS PROPOSAL SHOULD HAVE BEEN SCORED HIGHER. KOLLMORGEN CORP., B-221709.5, JUNE 24, 1986, 86-1 CPD PARA. 580.

TI STATES THAT IT IS HAMPERED IN PRESENTING ITS ARGUMENT BECAUSE OF THE LACK OF EXPLANATION IN THE RECORD OF THE REVIEW PANEL'S SUMMARY SCORES. ALTHOUGH THE NAVY STATES THAT THE PANEL DID NOT PREPARE A NARRATIVE DESCRIBING THE PANEL'S SCORING OF THE INITIAL PROPOSALS, THE NAVY DID INCLUDE IN ITS REPORT ON THE PROTEST A MEMORANDUM DESCRIBING WHY TI'S SCORE WAS REDUCED BASED ON ITS BEST AND FINAL OFFER. SPECIFICALLY, THE MEMORANDUM LISTS THREE AREAS IN WHICH TI'S PROPOSAL WAS FOUND NOT TO CONFORM TO SPECIFICATIONS IN THE RFP AND ALSO STATES THAT THE WARRANTY OFFERED BY TI DID NOT COMPLY WITH THE REQUIREMENTS SET OUT IN THE FEDERAL ACQUISITION REGULATION. TI DID NOT RESPOND TO THESE FINDINGS IN ITS COMMENTS ON THE NAVY REPORT. THE ONLY SPECIFIC CONTENTION TI MAKES IS THAT IT IMPROPERLY RECEIVED A LOWER SCORE THAN PROCESS CONTROL FOR ITS TECHNICAL EXPERIENCE, EVEN THOUGH TI'S PAST PERFORMANCE ON SIMILAR PROJECTS IS SUPERIOR TO PROCESS CONTROL'S. PROCESS CONTROL'S PROPOSAL, HOWEVER, LISTED VARIOUS PRIOR PROJECTS IT HAS PERFORMED AND TI DOES NOT EXPLAIN WHY IT CONSIDERS PROCESS CONTROL'S EXPERIENCE ON THESE PROJECTS INFERIOR TO ITS OWN.

TI ALSO CHALLENGES THE NAVY'S DECISION TO MAKE AWARD TO A HIGHER PRICED OFFEROR THAN TI. AS DISCUSSED ABOVE, PROCESS CONTROL'S TECHNICAL SCORE (91 POINTS) WAS CONSIDERABLY HIGHER THAN TI'S (56.18 POINTS); PROCESS CONTROL'S PRICE WAS APPROXIMATELY $300,000 HIGHER THAN TI'S PRICE. WHEN A CONTRACTING AGENCY MAKES PRICE/TECHNICAL TRADEOFFS, THE AWARD DECISION NEED ONLY BE RATIONALLY BASED AND CONSISTENT WITH THE EVALUATION CRITERIA. GRAY ADVERTISING, INC., 55 COMP.GEN. 1111 (1976), 76-1 CPD PARA. 325. WE WILL QUESTION THE CONTRACTING OFFICIALS' JUDGMENT REGARDING THE SIGNIFICANCE OF THE DIFFERENCE IN TECHNICAL MERIT ONLY UPON A CLEAR SHOWING OF UNREASONABLENESS. FAIRCHILD WESTON SYSTEMS, INC., B-218470, JULY 11, 1985, 85-2 CPD PARA. 39. HERE, THE NAVY'S SELECTION OF PROCESS CONTROL, THE HIGHER RATED, HIGHER PRICED OFFEROR, WAS CONSISTENT WITH THE EVALUATION SCHEME IN THE RFP, WHICH PROVIDED THAT TECHNICAL FACTORS WERE APPROXIMATELY ONE AND A HALF TIMES MORE IMPORTANT THAN PRICE. SINCE TI HAS OFFERED NO EVIDENCE TO SHOW THE SELECTION WAS UNREASONABLE, WE SEE NO BASIS ON WHICH TO OBJECT TO THE NAVY'S DECISION.

FINALLY, IN ITS INITIAL SUBMISSION TI STATED THAT A "THOROUGH EXAMINATION OF PROCESS CONTROL MAY REVEAL THAT IT DOES NOT MEET ALL THE STANDARDS REQUIRED OF A RESPONSIBLE CONTRACTOR." TI DID NOT ELABORATE ON THIS CONTENTION, AND, IN ANY EVENT, WE DO NOT REVIEW CHALLENGES TO AFFIRMATIVE RESPONSIBILITY DETERMINATIONS EXCEPT IN CIRCUMSTANCES NOT APPLICABLE HERE. BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.3(F)(5) (1986).

TI REQUESTS THAT IT BE AWARDED ITS PROPOSAL PREPARATION COSTS AND THE COSTS OF FILING AND PURSUING PROTEST. RECOVERY OF SUCH COSTS IS ALLOWED ONLY WHERE THE PROTEST IS FOUND TO HAVE MERIT. COMPETITION ON CONTRACTING ACT OF 1984, 31 U.S.C. SEC. 3554(C)(1) (SUPP. III 1985); 4 C.F.R. SEC. 21.6(D). SINCE WE HAVE DENIED THE PROTEST, WE ALSO DENY TI'S REQUEST FOR COSTS.

THE PROTEST IS DENIED.

/1/TI SUBMITTED TWO PROPOSALS, A BASIC PROPOSAL AND AN ALTERNATE. THE NAVY REJECTED THE ALTERNATE PROPOSAL AS TECHNICALLY UNACCEPTABLE. TI DOES NOT CHALLENGE THE NAVY'S FINDING WITH REGARD TO ITS ALTERNATE PROPOSAL; THE PROTEST CONCERNS ONLY THE EVALUATION OF TI'S BASIC PROPOSAL.

/2/ THE AWARD TO PROCESS CONTROL WAS AT A PRICE OF $2,168,588. NONE OF THE OPTION ITEMS WAS INCLUDED IN THE AWARD, AND THE FINAL PRICE WAS BASED ON A LATE MODIFICATION OF ITS PROPOSAL WHICH WAS ACCEPTED PURSUANT TO FEDERAL ACQUISITION REGULATION, 48 C.F.R. SEC. 52.215-10 (1985), AFTER THE AWARD SELECTION.