B-237156, Feb 2, 1990, 90-1 CPD 145

B-237156, Feb 2, 1990, 90-1 CPD 145

Procurement - Bid Protests - GAO procedures - Protest timeliness - Apparent soliciation improprieties DIGEST: 1. Protest allegations that agency improperly reopened discussions, and obtained new best and final offers (BAFOs) constituting an auction, are untimely when filed after award. Procurement - Competitive Negotiation - Discussion reopening - Propriety Procurement - Competitive Negotiation - Requests for proposals - Amendments - Notification - Contractors 2. Agency's verbal relaxation of requirement to submit resumes for awardee without advising protester of change does not require that negotiations be reopened where, due to awardee's higher technical score and lower price, award decision would remain the same. Procurement - Competitive Negotiation - Offers - Evaluation errors - Point ratings 3. Where solicitation advises offeror's of the total points available for each evaluation factor but also advises that subfactors would not be assigned points, agency reasonably evaluated each member of offeror's proposed staffs, consistent with stated evaluation criteria, by using a position functions matrix to produce a percentage of the total possible points for the staffing technical factor.

Attorneys

BRC Associates, Inc.:

BRC Associates, Inc., protests the award of a cost-plus-fixed-fee contract to Computer Dynamics, Inc. (CDI), under request for proposals (RFP) No. EOPOA-88-55, issued by the Executive Office of the President. BRC alleges several protest grounds, including the agency's failure to apply the RFP's requirement for staff resumes to all offeror's, thereby failing to treat all offeror's equally.

We sustain the protest.

This solicitation is for the provision of computer facilities management and operational support for the Office of the United States Trade Representative. /1/ The RFP called for separate technical and cost proposals detailing the proposed level of effort and labor rates. Section M of the RFP provided that technical proposals would be evaluated in three areas worth 60 percent of the evaluation as follows:

I. Overall Understanding, Technical 400 points

II. Workplan, Management Plan, Phase-in 450 points

III. Corporate Capabilities 150 points

Various subfactors were not listed in order of importance and did not have points assigned. Cost proposals, worth 40 percent of the evaluation, were to be evaluated for accuracy, realism, reasonableness, and affordability, and were to receive a cost score.

With regard to "staffing," offeror's were advised that "all staff are key staff" and that proposals "shall include resumes for all staff being offered." Offeror's also were required to indicate the position for which each staff member was proposed, and provide evidence of availability and commitment. Among the subfactors listed for the staffing factor was that staff meet or exceed the suggested experience and education guidelines included in the personnel qualifications guidelines section of the RFP. Award was to be based on the evaluation factors and relative orderof importance. Award could be made to other than the offeror with the lowest price or the highest technical evaluation score.

Three offeror's, including CDI and BRC, the incumbent, submitted proposals by the closing date of March 6, 1989. Proposals were evaluated; discussions were conducted with all offeror's; and best and final offers (BAFOs) were requested by June 9. In late July, after evaluating the BAFOs, the agency sought clarifications from the offeror's and discovered that both CDI and BRC intended to substitute certain staff members. The contracting officer noted that since all staff were key, many of whom had been interviewed in the evaluation process, and that since a large number of scoring points were determined by the merits of proposed personnel, changes in personnel could materially affect the evaluation of the contractors. Even though post-award substitutions were allowed by the RFP, the contracting officer determined to reopen discussions with BRC and CDI, the only offeror's in the competitive range.

At the agency's request, BRC and CDI submitted revised proposals on August 14, 1989. With its August 14 proposal, CDI noted that, pursuant to a telephone conversation with the agency on August 10, it was only submitting a position description for its facilities operators, instead of resumes, and promised that all operators would meet or exceed that description. Conversely, BRC submitted seven resumes for these positions. For evaluation purposes, the agency scored the position description for CDI, and combined some of the BRC resumes for a single score.

As to staffing, BRC's final evaluation score was 10 points higher than CDI's on staffing, but its combined technical score of 629.6 points was 105.5 points lower than CDI's score of 735.1 points. Both offeror's were advised that their costs were too high and the agency requested BAFOs. Under the BAFOs, CDI was lower in cost at $1,842,487 than BRC at $1,911,403.51, a difference of $68,916.51. In view of CDI's higher technical score and lower cost, the agency awarded it the contract. After receiving a debriefing, BRC filed a protest with the agency raising a number of grounds. The agency denied that protest and BRC then filed its protest with our Office on September 27.

BRC's first three grounds of protest concern the propriety of the agency's failure to award the contract after evaluation of the June 9 BAFOs and its reopening discussions. These grounds are untimely and not for consideration since our Bid Protest Regulations require that protests based upon alledged improprieties incorporated into a solicitation must be filed not later than the next closing date for receipt of proposals following the incorporation. 4 C.F.R. Sec. 21.2(a)(1) (1989). BRC was aware of the reopening of discussions on August 9, and participated in the negotiations, submitted its BAFO, and waited until after award to file its protest. See Space Applications corp., B-233143.3, Sept. 21, 1989, 89-2 CPD Para. 255; ABC Appliance Repair Serv., B-221850, Feb. 28, 1986, 86-1 CPD Para. 215.

In a related protest ground, BRC alleges that the agency conducted discussions with CDI between August 9 and 14, indicating a meeting scheduled between CDI and the agency. This protest ground is also untimely and not for consideration since, under our Bid Protest Regulations, a party must file its protest within 10 working days after its basis of protest is known or should have been known. 4 C.F.R. Sec. 21.2(a)(2). BRC first raised this allegation on September 27 when it filed its protest with our Office.

BRC next contends that the agency failed to apply the RFP requirement for resumes equally to it anc CDI, by allowing CDI to submit a standard position description without providing the same opportunity to BRC. Despite the agency's assertion that it advised both offerors of the alternative of submitting a position description BRC denies receiving any such advice.

It is a fundamental principal of government procurement that all offeror's be treated equally. Generally, where an offeror is orally informed of an agency's change in requirements during negotiations, notwithstanding its absence in the solicitation, the offeror is on notice of the change. See I.E. Levick and Assocs., B-214648, Dec. 26, 1984, 84-2 CPD Para. 695. However, it is rudimentary that an oral change or modification to a solicitation should usually be followed by a written amendment verifying the oral advice given. Id. We have held that an agency's failure to issue a written amendment confirming prior oral advice given to offeror's constitutes a prejudicial defect where an offeror denies having been orally advised of a material change in the solicitation. CoMone, Inc., 65 Comp.Gen. 66 (1985), 85-2 CPD Para. 555.

We believe the change of requirements regarding resumes was material and the agency's action waived the requirement for CDI. The RFP advised that all staff were "key" and required resumes be submitted for all proposed staff. The materiality of this requirement is evidenced by the agency's decision, notwithstanding the RFP's allowance of post award substitutions, to reopen negotiations when the offerors notified it of planned substitutions in proposed staff. The importance of the requirement is also highlighted by the fact that BRC had proposed the replacement of a single, lower level employee, and that the agency made this determination due in part to its belief that changes in staffing could materially affect the evaluations.

This case is distinguishable from Columbia Research Corp., B-227802, Sept. 24, 1987, 87-2 CPD Para. 295; Columbia Research Corp.-- Request for Reconsideration, B-227802.2, Feb. 18, 1988, 88-2 CPD Para. 164, where we found no prejudice from the relaxation of a requirement for a certain number of resumes where the difference in cost was $2.65 million. Here, BRC was prejudiced by the agency's action. First, BRC notes that it would not have obtained commitment letters for proposed staff had it been informed that position descriptions would be acceptable. In this regard, we note that the government awarded virtually the same score to CDI's position description as to BRC's six resumes. Second, since the difference in final costs is less than $69,000 in a procurement worth close to $2 million, the waiver of requirements for CDI may have had an effect on the award decision. Accordingly, we sustain the protest on this basis. /3/

In view of the agency's waiver of a material requirement without notifying all offeror's, we recommend (1) that the agency determine its actual minimum requirements with respect to resumes and position descriptions; (2) amend the solicitation, if necessary, to reflect any changes in requirements; (3) conduct another round of best and final offers; and (4) if the outcome of the competition changes, terminate CDI's contract for the convenience of the government. BRC is not entitled to its claimed proposal preparation costs, since BRC will have the opportunity to compete for the contract. Hydro Research Science, Inc.-- Claim for Costs, B-238501.3, June 19, 1989, 89-1 CPD Para. However, BRC is entitled to the costs of filing and pursuing the protest. 4 C.F.R. Sec. 21.6(d)(1). The protest is sustained.

/1/ A separate and discrete section of the solicitation was for office automation and systems development, but BRC did not submit a proposal for this function.

/2/ At that time, CDI's technical proposal was the highest scored at 767 points and CDI was the lowest cost offeror at $1,404,146, while BRC's proposal was scored at 625 points with a cost of $1,509,968.70.

/3/ In a related argument, BRC contends that the agency's stated " best value" award basis is inappropriate, and that a low, technically acceptable offeror basis would be better. This ground of protest was evident on the face of the solicitation and thus is untimely since it was not raised until after the closing date for receipt of initial proposals. 4 C.F.R. Sec. 21.2(a)(1). To the extent BRC would argue that the inappropriateness only became evident during the August discussions and BAFO requests, its failure to raise this issue within 10 working days, likewise makes this ground untimely. 4 C.F.R. Sec. 21.2(a)(2).