B-203166, AUG 5, 1981

B-203166, AUG 5, 1981

DIGEST: 1. DETERMINATION OF HOW MANY AND WHICH MEMBERS OF EVALUATION PANEL WILL EVALUATE EACH PROPOSAL IS WITHIN DISCRETION OF CONTRACTING AGENCY. 2. DETERMINATION OF RELATIVE MERITS OF TECHNICAL PROPOSALS IS RESPONSIBILITY OF PROCURING OFFICIALS AND GAO WILL NOT DISTURB THEIR JUDGMENT UNLESS SHOWN TO BE ARBITRARY OR IN VIOLATION OF PROCUREMENT STATUTES OR REGULATIONS.

DATA RESOURCES, INC.:

DATA RESOURCES, INC. (DRI) PROTESTS THE AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) NO. USDA/ESS- 6-81 ISSUED BY THE DEPARTMENT OF AGRICULTURE, ECONOMICS AND STATISTICS SERVICE. THE RFP SOUGHT A CONTRACT TO GIVE THE AGENCY ACCESS TO COMPUTERIZED INFORMATION SYSTEMS CAPABLE OF PROVIDING, AMONG OTHER THINGS, DETAILED FORECASTS OF CERTAIN ECONOMIC VARIABLES. THE RFP LISTED FOUR SUCH SYSTEMS, AND DRI SUBMITTED AN OFFER ON TWO OF THEM - THE MACROECONOMICS SERVICE AND THE U. S. AGRICULTURAL SERVICE. DRI COMPLAINS THAT THE AGENCY CHANGED THE EVALUATING PROCEDURES AFTER PROPOSALS WERE RECEIVED, AND UNREASONABLY CONCLUDED THAT THE DRI MODEL DOES NOT FORECAST AS ACCURATELY AS THE AWARDEE'S MODEL DOES.

THE PROTEST IS DENIED.

DRI, WHICH INITIALLY FILED A PROTEST WITH THE AGENCY, CITES THE CONTRACTING OFFICER'S LETTER DENYING THE PROTEST AS SUGGESTING THAT THE AGENCY CHANGED THE EVALUATION CRITERIA AFTER PROPOSALS WERE SUBMITTED. THE LETTER STATED: "THE FACT THAT THIS PROCUREMENT REQUIRED FOUR SEPARATE PARTS *** REQUIRED A DIFFERENT APPROACH THAN THE CITED EVALUATION PROCESS."

IN RESPONSE, THE AGENCY REPORTS THAT IT NEVER CHANGED THE EVALUATION CRITERIA BUT MERELY REVISED THE PROCEDURE FOR EVALUATING PROPOSALS. INITIALLY, THE CONTRACTING OFFICER WROTE A MEMORANDUM TO THE CHAIRMAN OF THE EVALUATION PANEL INSTRUCTING HIM AS FOLLOWS:

"A TECHNICAL EVALUATION BOARD OF THREE OR MORE MEMBERS SHOULD BE APPOINTED THAT WILL EVALUATE ALL PROPOSALS. *** EACH BOARD MEMBER MUST EVALUATE EACH PROPOSAL UTILIZING THE TECHNICAL EVALUATION MATRIX IN THE RFP."

HOWEVER, BECAUSE NOT ALL OF THE PANEL MEMBERS WERE EXPERTS ON EACH OF THE FOUR SYSTEMS LISTED IN THE RFP, THE CONTRACTING OFFICER ADJUSTED THIS PROCESS TO ALLOW FOR THE EVALUATION OF EACH SYSTEM BY ONLY THOSE MEMBERS PROFICIENT IN THE AREA.

THE RECORD DOES NOT INDICATE ANY INSTANCE WHERE THE AGENCY DEVIATED FROM THE EVALUATION CRITERIA LISTED IN THE RFP. THE CONTRACTING OFFICER SIMPLY CHANGED HIS ORIGINAL INSTRUCTIONS AS TO THE COMPOSITION OF THE EVALUATION PANEL, INCLUDING THE NUMBER OF MEMBERS TO REVIEW EACH PART OF A PROPOSAL. THE DECISION AS TO HOW MANY AND WHICH MEMBERS OF AN EVALUATION PANEL WILL REVIEW EACH PROPOSAL, AS WELL AS THE CHOICE OF EVALUATORS, IS WITHIN THE DISCRETION OF THE CONTRACTING AGENCY. SEE MAXIMUS, B-195806, APRIL 15, 1981, 81-1 CPD 285. WE FIND NO REASON TO OBJECT IN THIS CASE.

CONCERNING THE ALLEGED UNREASONABLENESS OF THE AGENCY'S EVALUATION, DRI REFERS TO THE EVALUATION STATEMENT THAT ITS OFFERED MACROECONOMICS SYSTEM IS "NOT USEFUL IN ASSISTING OUTLOOK EVALUATION." DRI INTERPRETS THIS TO MEAN THAT ITS SYSTEM WAS VIEWED AS INACCURATE, AND CONTENDS THAT AN INDEPENDENT ORGANIZATION'S REVIEW OF THE FORECASTS FOR FOUR OF THE SYSTEM'S KEY VARIABLES SHOW THAT DRI'S MODEL ACTUALLY IS MORE ACCURATE THAN THE AWARDEE'S.

THE AGENCY EXPLAINS THAT IT DID NOT QUESTION THE ACCURACY OF THE FORECASTS FOR THE FOUR VARIABLES, BUT FOUND THAT THE ACCOMPANYING ANALYSES WERE NOT PRESENTED IN A MANNER WHICH WOULD BE HELPFUL TO THE AGENCY. THE EVALUATION INDICATES THAT DRI TAKES LONGER TO FORECAST TRENDS THAN THE AWARDEE AND TAKES "A MIDDLE OF THE ROAD APPROACH RATHER THAN BOLDLY ATTEMPTING TO IDENTIFY NEW TRENDS." THE EVALUATION SURMISES THAT THE LONG FORECAST TIME RESULTS FROM DRI'S DELAYING DEFINITE CONCLUSIONS UNTIL IT CAN EVALUATE DATA OVER A LONGER TIME FRAME. THE EVALUATORS DETERMINED THAT SUCH A CAUTIOUS AND DELIBERATE APPROACH TO THE FORECASTS WAS NOT AS HELPFUL AS THE APPROACH TAKEN BY THE AWARDEE.

IT IS NOT OUR FUNCTION TO MAKE DETERMINATIONS AS TO THE ACCEPTABILITY OR RELATIVE MERITS OF TECHNICAL PROPOSALS. THOSE DETERMINATIONS ARE THE RESPONSIBILITY OF THE CONTRACTING AGENCY, AND PROCURING OFFICIALS THUS ENJOY A REASONABLE DEGREE OF DISCRETION IN EVALUATING PROPOSALS. WE WILL NOT DISTURB THEIR JUDGMENT UNLESS IT IS SHOWN TO BE ARBITRARY OR IN VIOLATION OF PROCUREMENT STATUTES OR REGULATIONS. SEE PANUZIO/REES ASSOCIATES, B-197516, NOVEMBER 26, 1980, 80-2 CPD 395.

WE BELIEVE THE PROTESTER, WHICH HAS THE BURDEN TO PROVE ITS CASE, PANUZIO/REES ASSOCIATES, SUPRA, HAS FAILED TO SHOW THAT THE AGENCY'S EVALUATION WAS UNREASONABLE. THE PROTESTER'S CONTENTIONS GO TO THE ACCURACY OF ITS FORECASTS, WHICH THE AGENCY DOES NOT REFUTE. THE PROTESTER HAS NEVER ADDRESSED THE AGENCY'S BASIS FOR SCORING DRI'S PROPOSAL LOWER THAN ITS COMPETITOR, I.E., THE TIME LAG IN MAKING FORECASTS AND DRI'S "MIDDLE OF THE ROAD APPROACH." IN THIS RESPECT, THERE IS NO QUESTION THAT THESE FACTORS WERE APPROPRIATE FOR CONSIDERATION UNDER THE RFP'S SCHEME FOR EVALUATING PROPOSALS.

THE PROTEST IS DENIED.