B-169214, JUN. 11, 1970

B-169214, JUN. 11, 1970

CONTRACTS--NEGOTIATION--EVALUATION FACTORS--POINT RATING--MISSING PAGES IN PROPOSAL BIDDER'S PROTEST ALLEGING THAT AIR FORCE'S LOSS OF "MOST VITAL PORTION" OF BIDDER'S TECHNICAL QUALIFICATION PROPOSAL AND ITS INCORRECT CAPABILITY EVALUATION RESULTED IN AWARD OF TIME AND MATERIALS TYPE CONTRACT AT HIGHER PRICE IS DENIED SINCE ADMINISTRATIVE REPORT IS ACCEPTED WHEN IT CONFLICTS WITH CLAIMANT'S STATEMENT, ABSENT EVIDENCE SUFFICIENTLY CONVINCING TO OVERCOME PRESUMPTION OF CORRECTNESS OF ADMINISTRATIVE REPORT, BECAUSE AWARD ON BASIS OF SELF-SERVING STATEMENTS WOULD BE INCONSISTENT WITH MAINTENANCE OF INTEGRITY OF COMPETITIVE BIDDING SYSTEM. MOREOVER, INCLUSION OF MISSING PAGES WOULD UNDOUBTEDLY HAVE FAILED TO RAISE PROTESTANT'S SCORE TO REQUIRED MINIMUM POINTS. SEE COMP. GEN. DECS. CITED.

TO BECO, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 3, 1970, AND SUBSEQUENT CORRESPONDENCE, WITH ENCLOSURES, PROTESTING AGAINST AWARD OF A CONTRACT TO THE TUMPANE COMPANY OF GEORGIA (TUMPANE) UNDER REQUEST FOR QUOTATIONS (RFQ) NO. F09603-70-Q-3867 (RFQ NO. 3867) ISSUED BY THE WARNER ROBINS AIR MATERIEL AREA (WRAMA), ROBINS AIR FORCE BASE, GEORGIA.

THE PRINCIPAL BASIS OF YOUR PROTEST IS THAT THROUGH THE ALLEGED LOSS BY WRAMA OF "THE MOST VITAL PORTION" OF YOUR TECHNICAL QUALIFICATION PROPOSAL, THE CAPABILITIES OF YOUR FIRM WERE INCORRECTLY EVALUATED. YOU CONTEND THAT THIS RESULTED IN THE AWARD OF THE CONTRACT TO A LESS EXPERIENCED FIRM AT A PRICE $183,181 IN EXCESS OF THAT OFFERED BY YOU.

THE SOLICITATION, ISSUED ON OCTOBER 27, 1969, CONTEMPLATED A TIME AND MATERIALS TYPE CONTRACT FOR THE REPAIR OF VARIOUS MAKES AND MODELS OF PUMPS AND COMPRESSORS. SECTION H-8 OF THE SOLICITATION REQUIRED OFFERORS TO SUBMIT SEPARATE QUALIFICATION AND PRICE PROPOSALS, WHICH WERE TO BE INDEPENDENTLY EVALUATED PURSUANT TO A SYSTEM DISCUSSED MORE FULLY BELOW. BY LETTER OF FEBRUARY 20, 1970, WRAMA INFORMED YOU THAT FOLLOWING THIS EVALUATION, AWARD HAD BEEN MADE TO TUMPANE. YOU THEN WERE GRANTED A CONFERENCE WITH WRAMA PERSONNEL, AT WHICH YOU COMPARED YOUR FILE COPY OF YOUR PROPOSAL WITH THE COPY IN THE GOVERNMENT'S POSSESSION. YOUR COPY CONTAINED FOUR PAGES WHICH WERE NOT IN THE GOVERNMENT'S COPY.

BOTH COPIES CONTAINED AN UNNUMBERED "TITLE PAGE;" A SECOND PAGE NUMBERED "PAGE 1 OF 3" CONSISTING OF RESUMES OF BECO PERSONNEL; A "PAGE 2 OF 3" LISTING PREVIOUS EXPERIENCE WITH SIMILAR CONTRACTS; AND A "PAGE 3 OF 3," AN ORGANIZATIONAL CHART. HOWEVER, ONLY THE BECO FILE COPY CONTAINS FOUR ADDITIONAL PAGES WHICH INCLUDE QUALITY CONTROL PROCEDURES; A REPAIR AND INSPECTION FLOW CHART; A CHART OF THE ORGANIZATIONAL STRUCTURE UNDER THE GENERAL MANAGER; AND A FLOOR PLAN OF THE BECO FACILITY. THE PAGE OF QUALITY CONTROL PROCEDURES AND THE REPAIR AND INSPECTION FLOW CHART REFER TO RFQ NO. 3867 BUT ARE NOT PAGINATED. THE ORGANIZATION DIAGRAM MAKES NO REFERENCE TO THE INSTANT SOLICITATION AND IS NOT PAGINATED. THE PAGE CONTAINING THE FLOOR PLAN REFERS ONLY TO:

"SECTION I PAGE 2 MARCH 25, 1969" INDICATING IT WAS PREPARED APPROXIMATELY SEVEN MONTHS BEFORE RFQ NO. 3867 WAS ISSUED. EACH PAGE RELATES TO A DISTINCT SUBJECT MATTER AND THERE IS NO TEXTUAL REFERENCE IN THE MATERIAL WITHIN THE GOVERNMENT'S POSSESSION TO THE FOUR ALLEGEDLY MISSING PAGES, NOR WITHIN THE MISSING PAGES TO EACH OTHER.

IN RESPONSE TO YOUR ALLEGATION THAT THE PAGES WERE LOST BY WRAMA, THE AIR FORCE HAS STATED THAT THE PROPOSALS WERE CAREFULLY CONTROLLED AT ALL TIMES AND THAT IT WAS "INCONCEIVABLE" THAT A PORTION OF A PROPOSAL COULD HAVE BEEN LOST UNDER THESE CONTROL PROCEDURES. WHEN THERE IS A CONFLICT BETWEEN THE STATEMENT OF A CLAIMANT AND THE ADMINISTRATIVE REPORT, IT IS A LONG-ESTABLISHED RULE OF THIS OFFICE TO ACCEPT THE LATTER, IN THE ABSENCE OF EVIDENCE SUFFICIENTLY CONVINCING TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF. 37 COMP. GEN. 568 (1958). WHILE YOUR SUBMISSION TO THIS OFFICE INDICATES THAT CERTAIN PAGES WERE PREPARED FOR YOUR PROPOSAL, IT DOES NOT SHOW THAT THOSE PAGES WERE ACTUALLY TRANSMITTED TO THE PROCURING ACTIVITY. UNDER THE PRESENT RECORD, THE PRESUMPTION OF THE CORRECTNESS OF THE ADMINISTRATIVE POSITION HAS NOT BEEN OVERCOME AND WE MUST CONCLUDE THAT THE FOUR PAGES WERE NOT INCLUDED WITH BECO'S ORIGINAL SUBMISSION.

FOR YOUR INFORMATION, HOWEVER, EVEN WHERE IT HAS BEEN ESTABLISHED THAT THE BID OR PROPOSAL WAS LOST BY THE GOVERNMENT, THE POSITION OF OUR OFFICE HAS BEEN THAT AWARD ON THE BASIS OF SELF-SERVING STATEMENTS WOULD NOT BE CONSISTENT WITH THE MAINTENANCE OF THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM, WHICH REQUIRES AWARD TO BE MADE TO THAT RESPONSIBLE BIDDER SUBMITTING THE LOW RESPONSIVE BID OR OFFER OF RECORD AT THE TIME OF THE OPENING. B-167369, SEPTEMBER 18, 1969; B-166973, JUNE 26, 1969; B-149981, OCTOBER 25, 1962. MOREOVER, THE AIR FORCE REPORTS THAT WHILE THERE IS LITTLE DOUBT THAT FULLER COMPLIANCE WITH SECTION H-8 WOULD HAVE RAISED YOUR RATING, INCLUSION OF THE SUBJECT PAGES IN THE TECHNICAL EVALUATION WOULD UNDOUBTEDLY HAVE FAILED TO RAISE YOUR SCORE TO THE REQUIRED 199 MINIMUM POINTS, WHICH VIEW DOES NOT SEEM UNREASONABLE CONSIDERING THE NUMBER OF POINTS ASSIGNED TO THE AREA IN QUESTION.

APART FROM THE ISSUE DISCUSSED ABOVE, YOU HAVE ALLEGED THAT AWARD WAS MADE AT A "PRICE" GREATLY IN EXCESS OF THAT QUOTED BY YOU. THE INSTANT CONTRACT WAS NOT LET FOR A FIRM FIXED PRICE BUT ON A TIME AND MATERIALS BASIS, SINCE IT WAS NOT KNOWN WHICH ITEMS WOULD REQUIRE REPAIR, WHAT QUANTITIES WOULD BE INVOLVED, OR TO WHAT EXTENT REPAIRS WOULD BE PERFORMED. THUS, OFFERORS WERE ASKED TO QUOTE STRAIGHT AND OVERTIME HOURLY RATES FOR THE WORK TO BE PERFORMED. HOWEVER, AWARD WAS NOT BASED SOLELY UPON THIS RATE, SINCE THE COST OF PERFORMANCE BY AN INEFFICIENT CONTRACTOR AT A LOW HOURLY RATE COULD EXCEED THAT OF A MORE EFFICIENT FIRM AT A HIGHER RATE. THEREFORE, AN EVALUATION SYSTEM WAS DEVISED TO RELATE OFFERORS' PROBABLE EFFICIENCY TO THEIR HOURLY RATES TO DETERMINE WHICH FIRM COULD PERFORM THE CONTRACT AT THE LOWEST ULTIMATE COST TO THE GOVERNMENT.

OFFERORS WERE REQUIRED TO SUBMIT SEPARATE QUALIFICATION AND PRICE QUOTATIONS. PAGES 20 THROUGH 22 OF RFQ NO. 3867 PROVIDED THAT QUALIFICATION QUOTATIONS WERE TO DESCRIBE OFFERORS' PERSONNEL AND ORGANIZATIONAL STRUCTURE, INCLUDING THE STRUCTURE AND EXPERIENCE OF MANAGEMENT, OPERATIONAL AND SUPPORT PERSONNEL. SUCH QUOTATIONS WERE ALSO TO DESCRIBE OFFERORS' EXPERIENCE AND APPROACHES TO PERFORMANCE OF THE CONTRACT. IN REGARD TO THE LATTER, OFFERORS WERE TO PROVIDE SUPPLY PLANS, DESCRIPTION OF FACILITIES, PLANT LAYOUT AND FLOW CHARTS, SUBCONTRACTING, ENGINEERING, QUALITY CONTROL AND REPORTING SYSTEMS, AND TEST AND ESTIMATING PROCEDURES.

THE QUALIFICATION QUOTATIONS WERE EXAMINED BY A QUALIFICATION EVALUATION BOARD WHICH SCORED THEM IN ACCORDANCE WITH NUMERICAL EVALUATION WEIGHTS WHICH HAD BEEN ESTABLISHED BEFORE THE DATE SET FOR RECEIPT OF QUOTATIONS. THE RECORD SHOWS THAT BY LETTER OF FEBRUARY 26, 1970, WRAMA FURNISHED YOU THE SCHEME OF SCORING AND THE POINTS ASSIGNED TO YOUR PROPOSAL. POSSIBLE SCORES RANGED FROM ZERO TO 400 POINTS, THE LATTER REPRESENTING THE IDEALLY EFFICIENT FIRM WHICH COULD PERFORM THE CONTRACT IN 132,752 MAN-HOURS. THOSE RECEIVING LESS THAN 199 POINTS WERE DETERMINED NOT CAPABLE OF SATISFACTORILY PERFORMING THE CONTRACT. ALL BUSINESSES RECEIVING 199 POINTS OR HIGHER WERE REFERRED TO A PRICE EVALUATION BOARD. SMALL BUSINESS QUOTATIONS RECEIVING LESS THAN 199 POINTS WERE ADJUSTED UPWARD TO THAT FIGURE FOR THE SOLE PURPOSE OF DETERMINING WHETHER THE RESULTANT RELATIVE STANDING WOULD WARRANT REFERRAL TO THE SMALL BUSINESS ADMINISTRATION.

THE QUALIFICATION EVALUATION BOARD ASSIGNED POINT RATINGS FROM 34.8 TO 325.6 TO THE TWELVE QUOTATIONS RECEIVED. BECO WAS ASSIGNED A SCORE OF 90.2 AND WAS RANKED NINTH OF TWELVE. SIX OF THE FIRMS WERE RATED AT 199 POINTS OR HIGHER, AND THESE SIX, TOGETHER WITH THREE SMALL BUSINESS QUOTATIONS RATED AT LESS THAN 199 POINTS, WERE THEN EVALUATED BY THE PRICE EVALUATION BOARD.

THE PRICE EVALUATION BOARD, IN A MEETING HELD BEFORE THE OPENING OF PRICE QUOTATIONS, ESTABLISHED A FORMULA FOR ADJUSTING THE ESTIMATED MAN HOURS REQUIRED FOR CONTRACT PERFORMANCE IN LIGHT OF THE POINT RATINGS ASSIGNED OFFERORS BY THE QUALIFICATION EVALUATION BOARD. GENERALLY, THIS FORMULA INCREASED THE ESTIMATED MAN-HOURS AS OFFERORS' POINT RATINGS (OR EFFICIENCY) DECREASED. PRICE QUOTATIONS THEN WERE OPENED AND OFFERORS' HOURLY RATES WERE MULTIPLIED BY THE ADJUSTED ESTIMATED MAN-HOURS TO DETERMINE WHICH FIRM COULD PERFORM THE CONTRACT AT THE LOWEST COST. THE LOW EVALUATED OFFEROR WITHDREW ITS QUOTATION ALMOST SIMULTANEOUSLY WITH THE ISSUANCE OF A NEGATIVE PREAWARD SURVEY UPON THAT COMPANY. TUMPANE WAS THE NEXT LOW OFFEROR, AND UPON RECEIPT OF A FAVORABLE PREAWARD SURVEY REPORT, AWARD WAS MADE TO THAT FIRM IN THE ESTIMATED AMOUNT OF $766,033, OF WHICH $711,533 WAS FOR LABOR AND $54,500 WAS FOR THE GOVERNMENT'S ESTIMATE OF MATERIAL.

YOU MAINTAIN THAT THE AWARD TO TUMPANE WAS MADE AT A PRICE OF $183,181 IN EXCESS OF THAT OFFERED BY YOU. THIS CONTENTION MAY BE SUSTAINED ONLY IF BECO'S QUALIFICATION QUOTATION WAS ASSIGNED THE MAXIMUM PERMISSIBLE RATING OF 400 POINTS, AT WHICH THE GOVERNMENT ESTIMATED THE WORK COULD BE PERFORMED IN 132,752 MAN-HOURS BY AN "IDEAL" FIRM. THESE MAN-HOURS, MULTIPLIED BY BECO'S HOURLY RATE OF $3.98, WOULD RESULT IN AN ESTIMATED PRICE OF $528,352.96. HOWEVER, BECO'S QUALIFICATION QUOTATION WAS RATED AT 90.2 POINTS. UNDER THE FORMULA ESTABLISHED BY THE PRICE EVALUATION BOARD, EVEN IF BECO'S QUOTATION WAS RATED AT THE MINIMALLY ACCEPTABLE 199 POINTS, AN ESTIMATED 199,659 MAN-HOURS WOULD BE REQUIRED TO PERFORM THE CONTRACT. THIS ESTIMATE MULTIPLIED BY BECO'S HOURLY RATE OF $3.98 WOULD RESULT IN AN ESTIMATED LABOR PRICE OF $794,642.82, WHICH EXCEEDS BY $83,109.82 THE ESTIMATED LABOR PRICE INCLUDED IN THE AWARD TO TUMPANE.

YOU CONTEND YOUR QUOTATION DID NOT DESCRIBE YOUR OPERATIONS IN DETAIL SINCE YOU FELT THAT WRAMA WAS IN POSSESSION OF YOUR PREVIOUS POLICIES AND PROCEDURES FROM PRIOR CONTRACTS. THEREFORE, YOU SUBMITTED ONLY THAT MATERIAL WHICH YOU THOUGHT NECESSARY TO UPDATE WRAMA'S RECORDS. HOWEVER, SECTION H-8 OF RFQ NO. 3867 CONTAINED THE FOLLOWING PROVISION:

"CAUTION:THE QUALIFICATIONS QUOTATION IS TO BE SUBMITTED IN A MANNER THAT DOES NOT REFLECT PRICE. QUOTERS MUST FURNISH COMPLETE INFORMATION. MERE REFERENCE (WITHOUT FULL EXPLANATION) TO WORK OR INFORMATION PREVIOUSLY SUBMITTED WILL NOT BE CONSIDERED IN EVALUATION OF QUALIFICATIONS QUOTATIONS. OTHER THAN IN THE AREA OF GOVERNMENT EXPERIENCE WITH THE CONTRACTOR, ONLY INFORMATION SUBMITTED WITH THE QUALIFICATIONS QUOTATION WILL BE CONSIDERED."

WE BELIEVE THAT THIS PROVISION PROVIDED CLEAR NOTICE TO OFFERORS TO SUBMIT COMPLETE INFORMATION OR EXPLANATION CONCERNING THEIR QUALIFICATIONS IN THE AREAS SPECIFIED EVEN THOUGH THEY MAY HAVE SUBMITTED PRIOR MATERIAL TO THE GOVERNMENT.

YOU ALSO CONTEND THAT THE TECHNICAL EVALUATION SHOULD HAVE INCLUDED A PREAWARD SURVEY OF EVERY OFFEROR AND SHOULD NOT HAVE BEEN LIMITED TO CONSIDERATION OF THE QUOTATIONS. THE RESPONSE OF THE AIR FORCE TO THIS CONTENTION IS THAT NEITHER THE TIME NOR THE TRAVEL FUNDS WERE AVAILABLE FOR THE PURPOSE OF SURVEYING THE FACILITIES OF ALL TWELVE OFFERORS, ALTHOUGH PREAWARD SURVEYS WERE CONDUCTED ON THOSE OFFERORS CONSIDERED FOR AWARD. IN OUR OPINION, OFFERORS WERE ADEQUATELY INFORMED THAT THE INFORMATION SUBMITTED WITH THEIR QUOTATIONS WOULD BE THE BASIS FOR EVALUATION, AND WE FIND NO LEGAL BASIS FOR OBJECTING TO THE PROCEDURE WHEREBY OFFERORS ARE REQUIRED TO PROVIDE THE FUNDAMENTAL INFORMATION UPON WHICH THEIR PROPOSALS WILL BE EVALUATED.

SECTION H-8(B) II B. (1) OF THE SOLICITATION REQUIRED OFFERORS TO "EXPLAIN IN DETAIL," THEIR SUPPLY PLAN, INCLUDING METHOD OF SUBMITTING REQUISITIONS, FLOW OF MATERIAL, PLANS FOR MAINTENANCE OF RECORDS, AND PURCHASING SYSTEM. YOU WERE ASSIGNED ZERO POINTS ON THIS ASPECT OF YOUR PROPOSAL BECAUSE YOU FAILED TO FURNISH SUCH A PLAN. YOU STATE THAT YOU DID NOT SUBMIT YOUR SUPPLY PLAN, A COPY OF WHICH YOU HAVE ENCLOSED WITH YOUR PROTEST, FOR FEAR OF VIOLATING SECTION F-9 OF THE SOLICITATION WHICH IS AS FOLLOWS:

"UNNECESSARILY ELABORATE CONTRACTOR'S PROPOSALS (1965 AUG):

"UNNECESSARILY ELABORATE BROCHURES OR OTHER PRESENTATIONS BEYOND THAT SUFFICIENT TO PRESENT A COMPLETE AND EFFECTIVE PROPOSAL ARE NOT DESIRED AND MAY BE CONSTRUED AS AN INDICATION OF THE OFFEROR'S LACK OF COST CONSCIOUSNESS. ELABORATE ART WORK, EXPENSIVE PAPER AND BINDINGS AND EXPENSIVE VISUAL AND OTHER PRESENTATION AIDS ARE NEITHER NECESSARY NOR WANTED."

THIS SECTION CLEARLY INDICATES THAT BROCHURES OR OTHER PRESENTATIONS SHOULD BE SUFFICIENT TO PRESENT A COMPLETE AND EFFECTIVE PROPOSAL. ALTHOUGH THE SECTION IS DESIGNED TO MINIMIZE THE COST OF AN OFFEROR'S PROPOSAL BY DISCOURAGING THE USE OF ELABORATE ART WORK AND UNNECESSARILY EXPENSIVE BINDINGS AND PAPER, WE DO NOT BELIEVE THAT SECTION F-9 MAY REASONABLY BE CONSTRUED AS PROVIDING JUSTIFICATION FOR FAILURE TO SUBMIT A DETAILED SUPPLY PLAN AS SPECIFIED BY SECTION H-8.

YOU FURTHER OBJECT TO THE AWARD TO TUMPANE ON THE BASIS THAT THAT FIRM HAS "NO PREVIOUS EXPERIENCE." IT IS ADMINISTRATIVELY REPORTED THAT WHILE TUMPANE HAS NOT PREVIOUSLY OVERHAULED THE SPECIFIC EQUIPMENT INVOLVED IN THIS PROCUREMENT, THAT FIRM HAS FOR MANY YEARS SATISFACTORILY OVERHAULED INDUSTRIAL PRODUCTION EQUIPMENT FOR THE AIR FORCE UNDER TIME AND MATERIALS CONTRACTS. IT IS FURTHER REPORTED THAT THE OPERATIONS INVOLVED IN BOTH FIELDS ARE COMPARABLE, SINCE THE REQUIRED SKILLS ARE SUBSTANTIALLY THE SAME, AND THAT TUMPANE HAS EARNED AN EXCELLENT REPUTATION FOR GOOD QUALITY WORK WITH A MINIMUM EXPENDITURE OF MAN-HOURS.

THE SELECTION OF CRITERIA FOR THE EVALUATION OF PROPOSALS AND THE EVALUATION OF PROPOSALS UNDER THOSE CRITERIA ARE THE PRIMARY RESPONSIBILITY OF THE PROCURING ACTIVITY. WE HAVE, HOWEVER, CAREFULLY REVIEWED THE PROCEDURES EMPLOYED IN THE INSTANT CASE, AND FIND NO LEGAL BASIS FOR QUESTIONING THE AWARD TO TUMPANE. IN VIEW OF THE FOREGOING, YOUR PROTEST IS DENIED.