B-181287, MAR 20, 1975, 54 COMP GEN 775

B-181287, MAR 20, 1975, 54 COMP GEN 775

CONTRACTS - NEGOTIATION - EVALUATION FACTORS - POINT RATING - EVALUATION GUIDELINES STATEMENT THAT AWARDEE WAS GIVEN QUALITY POINTS FOR AREAS OF PROPOSAL CONTAINING ERRORS IS UNFOUNDED AS RECORD SHOWS THAT ALL PROPOSAL DEFICIENCIES WERE RECTIFIED DURING DISCUSSIONS AND THAT AWARDEE WAS DOWNGRADED IN AREAS WHERE ITS PROPOSAL WAS LESS DESIRABLE THAN OTHERS SUBMITTED; MOREOVER, UNSUBSTANTIATED ALLEGATION THAT AWARDEE RECEIVED EXTRA QUALITY POINTS FOR PROPOSAL PRESENTATION IS NOT SUPPORTED BY RECORD, AND THEREFORE, CANNOT BE ACCEPTED. CONTRACTS - PROTESTS - CONTRACTING OFFICER'S AFFIRMATIVE RESPONSIBILITY DETERMINATION - GENERAL ACCOUNTING OFFICE REVIEW DISCONTINUED - EXCEPTIONS - FRAUD ISSUE CONCERNING WHETHER AWARDEE IS NONRESPONSIBLE FOR ALLEGEDLY FAILING TO OFFER FINISHED PRODUCT WHICH MEETS QUALITY OF PRODUCT INITIALLY OFFERED WILL NOT BE CONSIDERED BY GENERAL ACCOUNTING OFFICE, SINCE PRACTICE OF REVIEWING PROTESTS INVOLVING CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY HAS BEEN DISCONTINUED ABSENT SHOWING OF FRAUD IN FINDING. CONTRACTS - NEGOTIATION - EVALUATION FACTORS - PROPRIETY OF EVALUATION QUESTION CONCERNING WHETHER UNSUCCESSFUL OFFEROR'S PROPOSAL WAS UNFAIRLY DOWN-GRADED DOES NOT WARRANT REEVALUATION BY OUR OFFICE SINCE RECORD PRESENTS EVIDENCE IN REBUTTAL TO THIS CONTENTION, AND DETERMINATION OF RELATIVE DESIRABILITY OF PROPOSAL IS PROPERLY FUNCTION OF PROCURING ACTIVITY AND EVALUATION APPEARS TO HAVE NEITHER BEEN ARBITRARY NOR CAPRICIOUS; NOR WILL GENERAL ACCOUNTING OFFICE SUBSTITUTE ITS JUDGMENT FOR CONTRACTING OFFICIAL'S AS TO WHICH AREAS SHOULD BE EVALUATED WITHOUT CLEAR SHOWING OF UNREASONABLENESS, FAVORITISM, OR VIOLATION OF PROCUREMENT STATUTES AND REGULATIONS. CONTRACTORS - ON SITE - COMPETING FOR ADDITIONAL AWARD UNSUCCESSFUL OFFEROR'S STATEMENT THAT ONE OF JOINT VENTURERS AND NAVY WERE INVOLVED IN IMPROPER DISCUSSIONS DURING NEGOTIATION PROCESS IS UNFOUNDED, AS IS CONTENTION THAT ONE OF JOINT VENTURERS PARTICIPATED IN FORMULATION OF REQUEST FOR PROPOSALS FOR DESIGN AND CONSTRUCTION OF FAMILY HOUSING UNITS ON A TURNKEY BASIS. FURTHERMORE, THERE ARE NO REGULATIONS WHICH PROHIBIT ON-SITE CONTRACTOR FROM COMPETING FOR ADDITIONAL AWARD AT SAME LOCATION. CONTRACTS - PROTESTS - TIMELINESS - SOLICITATION IMPROPRIETIES ISSUES REGARDING FAILURE TO INDICATE RELATIVE WEIGHTS OF EVALUATED SUBCRITERIA IN REQUEST FOR PROPOSALS (RFP) AND FAILURE OF RFP TO INDICATE RELATIVE WEIGHT OF COST FACTOR IN RELATION TO TECHNICAL FACTORS ARE UNTIMELY AS SECTION 20.2(A) OF THE INTERIM BID PROTEST PROCEDURES AND STANDARDS REQUIRES THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS BE FILED PRIOR TO CLOSING DATE. CONTRACTS - NEGOTIATION - EVALUATION FACTORS - CRITERIA - CONTRARY TO ASPR USE OF EVALUATION FACTOR, DOLLARS PER QUALITY POINT RATIO, NOT INDICATED IN REQUEST FOR PROPOSALS (RFP), TREATS COST IN MANNER OTHER THAN OFFERORS WERE LED TO BELIEVE UPON READING SECTION 1C.14 "EVALUATION CRITERIA," AND THEREFORE, IS IN CONTRAVENTION OF ARMED SERVICES PROCUREMENT REGULATION 3- 501 WHICH REQUIRES FULL DISCLOSURE IN RFP OF METHOD OF EVALUATION. CONTRACTS - NEGOTIATION - REQUESTS FOR PROPOSALS - DEFICIENT EVEN THOUGH DEFICIENCIES EXIST IN REQUEST FOR PROPOSALS, ANY POSSIBLE PREJUDICE CAUSED BY DEFICIENCIES IS ONLY SPECULATIVE AND QUESTION WHETHER AWARDEE WOULD HAVE BEEN OTHER THAN PARTY SELECTED CANNOT BE APPROPRIATELY RESOLVED; MOREOVER, GIVEN NATURE AND STATE OF PROCUREMENT, TERMINATION FOR CONVENIENCE WOULD NOT BE ECONOMICALLY FEASIBLE AT THIS TIME.

IN THE MATTER OF TGI CONSTRUCTION CORPORATION; GALLEGOS CORPORATION; VENTURE BUILDERS CORPORATION, MARCH 20, 1975:

ON JANUARY 17, 1974, REQUEST FOR PROPOSALS (RFP) N62474-74-R-3339 WAS ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, WESTERN DIVISION. THE RFP SOLICITED PROPOSALS FOR THE DESIGN AND CONSTRUCTION OF 800 FAMILY HOUSING UNITS AT THE MARINE CORPS BASE, CAMP PENDLETON, CALIFORNIA, AND 200 FAMILY HOUSING UNITS AT THE MARINE CORPS BASE, TWENTY-NINE PALMS, CALIFORNIA, ON A TURNKEY BASIS.

IN RESPONSE TO THE RFP, SEVEN PROPOSALS WERE RECEIVED, AND ON APRIL 19, 1974, EACH OFFEROR WAS ADVISED OF AREAS OF NONCONFORMITY OF ITS RESPECTIVE PROPOSAL AND WAS OFFERED AN OPPORTUNITY TO CORRECT SAME AS WELL AS TO PROVIDE A BEST AND FINAL OFFER FROM BOTH A PRICE AND TECHNICAL STANDPOINT. THE AREAS OF NONCONFORMITY INDICATED TO EACH OFFEROR INCLUDED BOTH AREAS WHICH FAILED TO MEET THE REQUIREMENTS OF THE RFP AS WELL AS THOSE AREAS WHICH EXCEEDED THE MAXIMUM LIMITATIONS OF THE RFP. ALL OFFERORS RESPONDED IN A TIMELY MANNER, INDICATING THAT ALL DEFICIENCIES WOULD BE REMEDIED.

UPON RECEIPT OF ALL PROPOSALS, THE TECHNICAL PORTIONS OF EACH WERE GIVEN TO THE TURNKEY EVALUATION BOARD (BOARD) IN ACCORDANCE WITH THE PROVISIONS OF THE STANDARD TECHNICAL EVALUATION MANUAL FOR TURNKEY FAMILY HOUSING PROJECTS FOR QUALITY POINT SCORING. ALTHOUGH THE BOARD WAS GIVEN ALL SEVEN PROPOSALS TO SCORE, UNKNOWN TO IT, ONLY TWO OF THE OFFERORS, BOTH OF WHICH WERE JOINT VENTURES, KAISER-AETNA-ECOSCIENCE, INC. (K-A-E), AND TGI CONSTRUCTION CORPORATION, GALLEGOS CORPORATION AND VENTURE BUILDERS CORPORATION (TGI), WERE ELIGIBLE FOR THE AWARD. THE OTHER FIVE OFFERORS HAD SUBMITTED COST PROPOSALS IN EXCESS OF THE STATUTORY COST LIMITATION STATED IN SEC. 1C.4 OF THE RFP.

THE BOARD THEN ASSIGNED QUALITY POINTS TO EACH OF THE SEVEN PROPOSALS SUBMITTED. K-A-E, WHILE NOT RECEIVING THE HIGHEST TECHNICAL QUALITY POINT SCORE, OUTSCORED TGI. WHEN QUALITY POINT SCORES AND COST PROPOSALS WERE COMPARED BETWEEN K-A-E AND TGI, THE BOARD "*** UNANIMOUSLY AGREED THAT THE PROPOSAL SUBMITTED BY K-A-E OFFERED THE BEST PROJECT FROM AN ENGINEERING, ARCHITECTURAL AND COST/QUALITY RATIO VIEWPOINT." SINCE K-A-E'S PROPOSAL WAS WITHIN THE FUNDS AVAILABLE AND WITHIN THE STATUTORY COST LIMITATION, AWARD WAS RECOMMENDED BY THE BOARD TO K-A-E IN THE AMOUNT OF $24,710,000. AWARD IN THAT AMOUNT WAS MADE TO K-A-E ON MAY 20, 1974.

BY TELEGRAM OF MAY 20, 1974, TGI PROTESTED THE MAKING OF THE AWARD TO K-A -E ON THE BASIS THAT IT MET ALL OF THE QUALIFICATIONS REGARDING DESIGN AND THAT IT WAS THE "*** LOW RESPONSIBLE BIDDER UNDER THE RFP." THROUGH SUBSEQUENT CORRESPONDENCE FROM COUNSEL FOR TGI, NUMEROUS OTHER POINTS OF PROTEST HAVE BEEN RAISED, WHICH WILL BE DISCUSSED, INFRA.

INITIALLY, TGI CONTENDS THAT THERE WERE SIGNIFICANT ERRORS IN K-A-E'S PROPOSAL IN THE AREAS OF DWELLING UNIT DESIGN, SITE DESIGN AND ENGINEERING. WHILE THE INDIVIDUAL ALLEGATIONS ARE TOO NUMEROUS TO MENTION, WE MUST BEGIN WITH THE PREMISE THAT ALL AREAS OF K-A-E'S PROPOSAL THAT WERE BEYOND THE LIMITS OF THE SPECIFICATIONS WERE BROUGHT TO K-A-E'S ATTENTION THROUGH THE REVIEW COMMENTS. AS STATED ABOVE, ALL OF THESE DEFICIENCIES NOTED WERE RECTIFIED BEFORE SUBMISSION OF K-A-E'S BEST AND FINAL OFFER. GIVEN THIS BACKGROUND, OUR REVIEW OF THE INDIVIDUAL QUALITY POINTS ASSIGNED FOR ALL OF THE AREAS IN QUESTION SHOWS THAT K-A-E WAS IN FACT DOWNGRADED IN THOSE AREAS WHERE ITS PROPOSAL WAS LESS DESIRABLE THAN THE OTHER DESIGNS SUBMITTED. IN ADDITION, IT IS INTERESTING TO NOTE THAT IN NONE OF THE CATEGORIES EVALUATED WAS K-A-E'S PROPOSAL CONSIDERED TO BE THE BEST. IT WAS, HOWEVER, CONSISTENTLY THOUGHT TO BE AMONG THE BETTER PROPOSALS IN EACH AREA. BASED UPON THE COMMENTS MADE BY THE EVALUATORS AND THE RESPECTIVE SCORES ASSIGNED, WE FIND NO REASON TO BELIEVE THAT ANY SIGNIFICANT ERRORS EXISTED IN K-A-E'S PROPOSAL OR THAT ANY DEVIATIONS DID NOT RESULT IN A PROPORTIONATE DOWNGRADING.

TGI NEXT CONTENDS THAT K-A-E'S ELABORATE PROPOSAL PRESENTATION RESULTED IN EXTRA QUALITY POINTS BEING ASSIGNED TO IT. HOWEVER, NO FIRM EVIDENCE HAS BEEN PRESENTED TO SUBSTANTIATE THIS ALLEGATION, NOR HAS OUR OFFICE'S INDEPENDENT INVESTIGATION UNCOVERED SUCH EVIDENCE THAT WOULD LEAD US TO ACCEPT THE VALIDITY OF THIS ALLEGATION. THE RFP, AT SEC. 1C.11, WARNED OFFERORS THAT

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. ***

AND NONE OF THE EVALUATION COMMENTS MENTION K-A-E'S METHOD OF PRESENTATION. ACCORDINGLY, WITHOUT FURTHER PROOF, OUR OFFICE CANNOT CONCLUDE THAT K-A-E RECEIVED BONUS QUALITY POINTS BASED ON ITS METHOD OF PRESENTATION.

ADDITIONALLY, TGI CONTENDS THAT K-A-E HAS A REPUTATION FOR FAILING TO OFFER A FINAL PRODUCT THAT MEETS THE QUALITY OF THE PRODUCT INITIALLY OFFERED WHICH, IN EFFECT, CALLS INTO QUESTION THE RESPONSIBILITY OF K-A E.OUR OFFICE, HOWEVER, HAS DISCONTINUED THE PRACTICE OF REVIEWING BID PROTESTS INVOLVING A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR. THE DETERMINATION OF RESPONSIBILITY IS LARGELY WITHIN THE DISCRETION OF THE PROCUREMENT OFFICIALS WHO MUST BEAR ANY DIFFICULTIES EXPERIENCED BY REASON OF A CONTRACTOR'S NONRESPONSIBILITY. IF THE CONTRACTING OFFICER FINDS AN OFFEROR RESPONSIBLE, WE DO NOT BELIEVE THE FINDING SHOULD BE DISTURBED ABSENT FRAUD. MATTER OF EASTERN HOME BUILDERS AND DEVELOPERS, INC., B 182218, NOVEMBER 29, 1974.

NEXT, TGI CONTENDS THAT THERE IS NO REASONABLE BASIS OF SUPPORT FOR THE EVALUATOR'S CRITICISMS OF ITS PROPOSAL OR FOR THE EVALUATION PROCESS BY WHICH IT WAS DETERMINED THAT A 12 PERCENT QUALITY POINT DIFFERENTIAL EXISTED BETWEEN ITS AND K-A-E'S PROPOSAL. MOREOVER, TGI, CITING 52 COMP. GEN. 686 (1973), STATES THAT "*** THE MERE FACT THAT A QUALITY POINT DIFFERENTIAL EXISTS BETWEEN TGI AND K-A-E IS NO INDICATION THAT K-A-E'S PROPOSAL IS SUPERIOR TO TGI'S ESPECIALLY AS REGARDS SATISFACTION OF THE NAVY'S MINIMUM NEEDS. ***"

ALTHOUGH THE INDIVIDUAL CRITICISMS ARE TOO NUMEROUS TO MENTION, THE INDIVIDUAL EVALUATOR'S SCORING AND REVIEW COMMENTS, OBTAINED BY OUR FIELD OPERATIONS DIVISION, LOS ANGELES, AND INCORPORATED INTO THE RECORD BEFORE US, PRESENTS EVIDENCE IN REBUTTAL TO THIS CONTENTION. DETERMINATION OF THE RELATIVE DESIRABILITY OF THE RESPECTIVE PROPOSALS IS PROPERLY A FUNCTION OF THE PROCURING ACTIVITY AND OUR OFFICE HAS NOT ATTEMPTED TO MAKE AN INDEPENDENT REEVALUATION IN THIS RESPECT. HOWEVER, WE HAVE MADE A THOROUGH REVIEW OF THE MANY VOLUMES DETAILING THE EVALUATIONS, FINDINGS, AND SCORING OF THESE HIGHLY COMPLEX AND DETAILED PROPOSALS. IN ESSENCE, THE INDIVIDUAL SCORES GIVEN TGI'S PROPOSAL REFLECT THE EVALUATOR'S BELIEF THAT ITS PROPOSAL RANGED FROM MOST DESIRABLE IN ONE FACET TO LEAST DESIRABLE IN ANOTHER, WITH THE REMAINING AREAS OF EVALUATION FALLING INTO THE MIDDLE RANGE OF DESIRABILITY. WHAT THIS INDICATES IS THAT THE NAVY, IN MAKING ITS AWARD DECISION, DID NOT INDICATE THAT TGI'S PROPOSAL WAS "UNDESIRABLE," BUT ONLY THAT OTHER PROPOSALS WERE VIEWED AS "MORE DESIRABLE" FOR THE PURPOSE OF THE INSTANT PROCUREMENT. FROM OUR REVIEW, WE ARE SATISFIED THAT THE EVALUATIONS WERE NOT ARBITRARY OR CAPRICIOUS, AS CONTENDED, BUT WERE COMPREHENSIVE AND OBJECTIVE AND PROVIDED A REASONABLE BASIS FOR SELECTING THE MOST ADVANTAGEOUS PROPOSAL. SEE 51 COMP. GEN. 621 (1972); B-178295, OCTOBER 18, 1973.

AS CONCERNS THE EVALUATION PROCESS UTILIZED, WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING OFFICIALS' BY MAKING AN INDEPENDENT DETERMINATION AS TO WHAT AREAS SHOULD BE CONSIDERED DURING EVALUATION AND THEREBY INFLUENCE WHICH OFFEROR SHOULD BE RATED FIRST AND RECEIVE AWARD. SUCH DETERMINATIONS WILL BE QUESTIONED BY OUR OFFICE ONLY UPON A CLEAR SHOWING OF UNREASONABLENESS OR FAVORITISM OR UPON A CLEAR SHOWING OF A VIOLATION OF THE PROCUREMENT STATUTES AND REGULATIONS. SEE B-164552, FEBRUARY 24, 1969. THE RECORD BEFORE US SHOWS THAT TGI'S PROPOSAL WAS EVALUATED IN ACCORDANCE WITH THE CRITERIA SET FORTH IN THE EVALUATION PLAN. ALL OF THE OTHER FIRMS WERE EVALUATED ON THESE SAME CRITERIA. UNDER THIS PROCEDURE, K-A-E WAS DULY SELECTED FOR AWARD. WE DO NOT FIND THAT THE AWARD MADE WAS CONTRARY TO EXISTING LAW OR REGULATION. MATTER OF AEL SERVICE CORPORATION, 53 COMP. GEN. 800 (1974).

TGI'S CITATION TO 52 COMP. GEN., SUPRA, IS CORRECT IN ESTABLISHING THE POSITION THAT THE FACT THAT THERE IS A POINT SPREAD BETWEEN TWO PROPOSALS DOES NOT AUTOMATICALLY ESTABLISH THAT THE HIGHER RATED PROPOSAL IS MATERIALLY SUPERIOR. READING FURTHER, HOWEVER, THAT DECISION STATES:

*** WE BELIEVE THAT TECHNICAL POINT RATINGS ARE USEFUL AS GUIDES FOR INTELLIGENT DECISION-MAKING IN THE PROCUREMENT PROCESS, BUT WHETHER A GIVEN POINT SPREAD BETWEEN TWO COMPETING PROPOSALS INDICATES THE SIGNIFICANT SUPERIORITY OF ONE PROPOSAL OVER ANOTHER DEPENDS UPON THE FACTS AND CIRCUMSTANCES OF EACH PROCUREMENT AND IS PRIMARILY A MATTER WITHIN THE DISCRETION OF THE PROCURING AGENCY. ***

IN THE INSTANT SITUATION, THE RECORD DOES NOT ESTABLISH THAT THE NAVY RELIED SOLELY ON THE QUALITY POINT SCORES AS THE BASIS FOR AWARD. TO THE CONTRARY, THE NAVY COMPARED THE QUALITY POINT SCORES OF EACH OFFEROR WITH THE PRICES OFFERED IN EACH PROPOSAL. ONLY AFTER IT HAD BEEN DETERMINED WHICH OFFER REPRESENTED THE LEAST COST PER QUALITY POINT WAS AN AWARD RECOMMENDED. THEREFORE, A CHOICE OF THIS NATURE DOES NOT APPEAR TO HAVE BEEN AN ABUSE OF DISCRETION ON THE PART OF THE PROCURING ACTIVITY NOR CAN WE SAY THAT THIS PROCUREMENT WAS IN CONTRAVENTION OF OUR HOLDING IN 52 COMP. GEN., SUPRA.

FURTHER, TGI CONTENDS THAT THIS PROCUREMENT WAS IMPROPER DUE TO THE ALLEGED PARTICIPATION OF K-A-E IN THE FORMULATION OF THE INSTANT RFP AND DISCUSSIONS BETWEEN K-A-E AND THE NAVY SUBSEQUENT TO THE TIME OF THE NAVY'S INTERMEDIARY LETTERS TO ALL BIDDERS OF APRIL 19, 1974. THE NAVY HAS RESPONDED TO THIS POINT BY STATING THAT K-A-E IN NO MANNER PARTICIPATED IN ANY ASPECT OF THE FORMULATION OF THE RFP, AND ANY CONTACTS BETWEEN K-A-E AND THE NAVY WERE SIMPLY "NORMAL CONTACTS" BETWEEN THE PARTIES WHICH OCCURRED UNDER AN ONGOING CONTRACT.

IT SHOULD BE NOTED THAT NEITHER EVALUATORS NOR MEMBERS OF THE SELECTION BOARD WERE AWARE OF THE IDENTITY OF THE OFFERORS UNTIL THE SELECTION PROCESS WAS COMPLETED. MOREOVER, TGI HAS NOT SUBMITTED ANY CONCRETE EVIDENCE WHICH INDICATES ANY IMPROPRIETY ON THE NAVY'S PART, OR ANY SPECIFIC INSTANCE OF IMPROPER EXCHANGE OF INFORMATION. FINALLY, WE CAN FIND NO REGULATION WHICH WOULD PROHIBIT A CONTRACTOR THAT IS PRESENTLY PERFORMING UNDER AN AWARD AT A PARTICULAR INSTALLATION FROM COMPETING FOR AN ADDITIONAL AWARD AT THAT SAME LOCATION. ACCORDINGLY, WE FIND THIS CONTENTION TO BE WITHOUT MERIT. SEE MATTER OF BDM SERVICES COMPANY, B- 180245, MAY 9, 1974.

TGI ALSO CONTENDS THAT K-A-E RECEIVED BONUS QUALITY POINTS FOR ITS PROPOSAL IN CONTRAVENTION OF AMENDMENT 0002, ISSUED JANUARY 4, 1974, IN CERTAIN SPECIFIC AREAS. THE NAVY, IN TURN, HAS RESPONDED THAT NO BONUS POINTS WERE AWARDED FOR EXCEEDING THE BASIC REQUIREMENTS OF THE RFP, THAT ANY VIOLATIONS OF THE RFP SPECIFICATIONS (OVER OR UNDER THE STATED REQUIREMENTS) WERE BROUGHT TO THE ATTENTION OF K-A-E DURING NEGOTIATIONS AND SUBSEQUENTLY REMEDIED, AND FINALLY, THE RFP, WHILE OFFERING NO BONUS QUALITY POINTS FOR EXCEEDING THE BASIC FLOOR AREAS, DOES NOT PROHIBIT AN OFFEROR FROM EXCEEDING BASIC SQUARE FOOTAGES UP TO THE MAXIMUM SQUARE FOOTAGES STATED.

OUR REVIEW OF THE ADMINISTRATIVE RECORD CONVINCES OUR OFFICE THAT NO BONUS QUALITY POINTS WERE, IN FACT, AWARDED FOR EXCEEDING THE RFP REQUIREMENTS AND THAT K-A-E DID RECTIFY ANY DEFICIENCIES (INCLUDING EXTRA FLOOR SPACE) THAT WERE BROUGHT TO ITS ATTENTION DURING NEGOTIATIONS. MOREOVER, OUR INTERPRETATION OF THE SPECIFICATIONS LEADS US TO BELIEVE THAT AN OFFEROR MAY SUBMIT A PROPOSAL WHICH EXCEEDS CERTAIN "BASIC NET" FLOOR AREAS, AS LONG AS THE REQUIREMENTS OF SEC. 2A.2.D ARE COMPLIED WITH. THE RFP STATES A RANGE OF ACCEPTABLE SQUARE FOOTAGE, WARNING ONLY THAT:

*** DESIGNS WHICH PROVIDE LESS THAN THE MINIMUM OR GREATER THAN THE MAXIMUM NET SQUARE FEET INDICATED ARE NOT ACCEPTABLE.

ACCORDINGLY, WE FIND NO VIOLATION OF THE TERMS OF AMENDMENT 0002.

FINALLY, TGI CONTENDS THAT THE RFP IS DEFECTIVE IN TWO SIGNIFICANT FEATURES. FIRST, TGI CONTENDS THAT THE NAVY HAS FAILED TO INDICATE ANYWHERE WITHIN THE RFP THE RELATIVE IMPORTANCE OF THE INDIVIDUAL DESIGN EVALUATION FACTORS VIS-A-VIS EACH OTHER AND OVERALL PRICE, AND THAT THE RFP FAILED TO DISCLOSE THE RELATIVE WEIGHT OF THE COST FACTOR. TGI, RELYING PRIMARILY UPON MATTER OF AEL SERVICE CORPORATION, SUPRA, STATES THAT THE RFP DOES NOT PROVIDE PROPOSERS WITH ANY GUIDANCE AS TO THE MANNER IN WHICH THE ACTUAL EVALUATION WOULD BE MADE BY NAVY PERSONNEL, FAILS TO INDICATE THE RELATIVE WEIGHTS OF THE FACTORS LISTED AMONG THE PRINCIPAL CRITERIA, AND FAILS TO SPECIFY RELATIVE WEIGHTS OF THE SUBCRITERIA. HOWEVER, UNDER SEC. 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, PUBLISHED AT 4 CODE OF FEDERAL REGULATIONS, PART 20, PROTESTS AGAINST ALLEGED IMPROPRIETIES CONTAINED IN A SOLICITATION, APPARENT UPON THE FACE OF THE RFP, MUST BE FILED PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS. IN THE INSTANT PROTEST, TGI RAISES THE ABOVE ALLEGATIONS AGAINST THE PROPRIETY OF CERTAIN PORTIONS OF THE RFP, BUT THESE ALLEGATIONS HAVE FIRST BEEN RAISED AFTER THE CLOSING DATE FOR RECEIPT OF PROPOSALS. ACCORDINGLY, THESE ALLEGATIONS ARE UNTIMELY AND WILL NOT BE CONSIDERED ON THEIR MERITS.

SECONDLY, AND MORE IMPORTANTLY, TGI CONTENDS THAT THE RFP FAILED TO DISCLOSE THE FACT THAT A DOLLARS PER QUALITY POINT ($/Q.P.) RATIO WOULD BE ESTABLISHED TO EVENTUALLY DETERMINE WHICH PROPOSAL WAS, IN ACTUALITY, MOST ADVANTAGEOUS TO THE GOVERNMENT.

IN THE INSTANT SOLICITATION, SEC. 1C.14 "EVALUATION CRITERIA" STATED ONLY THAT:

A. EVALUATION WILL BE MADE ON THE BASIS OF SITE DESIGN, SITE ENGINEERING, DWELLING UNIT DESIGN, AND DWELLING UNIT ENGINEERING AND SPECIFICATIONS, AND COST. ***

AND, SEC. C1.7, "BASIS OF AWARD," STATED THAT:

THE NAVY RESERVES THE RIGHT *** TO AWARD A CONTRACT TO OTHER THAN THE PROPOSER SUBMITTING THE LOWEST PRICE OFFER; AND, TO AWARD A CONTRACT TO THE PROPOSER SUBMITTING THE PROPOSALS DETERMINED BY THE NAVY TO BE THE MOST ADVANTAGEOUS TO THE GOVERNMENT. ***

NOWHERE IN THE RFP IS THE USE OF THE $/Q.P. RATIO INDICATED.

CONCERNING THE USE OF THE $/Q.P. RATIO, THE NAVY ADVISES:

*** A COST QUALITY RATIO, EASILY DETERMINED BY DIVIDING THE DOLLARS PROPOSED INTO THE QUALITY POINTS ASSIGNED, IS A SIMPLE AND NON PREJUDICIAL METHOD OF DETERMINING WHICH OFFEROR WITHIN THE STATUTORY COST LIMITATIONS, WAS OFFERING THE BEST COMBINATION OF QUALITY OF HOUSING AND PRICE. ***

WHILE WE ARE NOT DISTURBED BY THE FACT THAT THE $/Q.P. RATIO WAS NOT SPECIFICALLY DISCLOSED TO THE OFFERORS, WE DO BELIEVE THAT OFFERORS ARE ENTITLED TO BE APPRISED IN THE RFP AS TO THE MANNER IN WHICH COST WILL BE COMPARED TO THE OTHER EVALUATION CRITERIA IN DETERMINING THE EVENTUAL AWARDEE. TO THIS EXTENT, SEC. 1C.14 "EVALUATION CRITERIA" ONLY DISCLOSED THE FACT THAT THERE WERE FIVE PRINCIPAL EVALUATION FACTORS WITHOUT GIVING ANY INDICATION OF THEIR RELATIVE ORDER OF IMPORTANCE. THIS, WE BELIEVE, WOULD LEAD OFFERORS TO THE CONCLUSION THAT EACH EVALUATION FACTOR WAS RELATIVELY EQUAL IN VALUE, OR WORTH APPROXIMATELY 20 PERCENT OF THE TOTAL EVALUATION POINTS. ALTHOUGH ATTACHMENT "G" REVEALED THAT THE FOUR TECHNICAL CRITERIA WERE IN FACT WEIGHTED IN RELATION TO ONE ANOTHER, THERE WAS NO INDICATION TO DISPEL THE BELIEF THAT THE TECHNICAL FACTORS WOULD BE GIVEN FOUR TIMES THE WEIGHT OF THE COST FACTOR. THE EFFECT OF THE $/Q.P. RATIO IS TO MAKE A DIRECT COMPARISON OF COST TO TECHNICAL EXCELLENCE WHICH DOES NOT GIVE COST ANY DISCERNIBLE EVALUATION WEIGHT. THEREFORE, WE FIND THAT SEC. 1C.14 WAS MISLEADING TO THE OFFERORS AND THAT CORRECT INFORMATION EITHER DISCLOSING THE SPECIFIC $/Q.P. RATIO OR INFORMING OFFERORS OF THE GENERAL MANNER IN WHICH COST WOULD BE EVALUATED SHOULD HAVE BEEN INCLUDED IN THE RFP. A DISCLOSURE OF THIS INFORMATION WAS REQUIRED BY ASPR SEC. 3-501 ET SEQ., AND ITS ABSENCE WAS A DEFICIENCY RELATING TO PROPOSAL EVALUATION AND THE RESULTS FOLLOWING THEREFROM.

GIVEN THIS DEFICIENCY, WE MUST NOW DETERMINE WHETHER CORRECTIVE ACTION IS WARRANTED. THERE ARE NO STATEMENTS IN THE PROCUREMENT FILE ESTABLISHING K -A-E'S PROPOSAL AS BEING TECHNICALLY SUPERIOR TO TGI'S. WHILE THERE ARE STATEMENTS IN THE RECORD TO THE EFFECT THAT TGI WAS NOT A STRONG CONTENDER FOR AWARD ON THE BASIS OF QUALITY DESIGN, THERE ARE COUNTERBALANCING STATEMENTS THAT TGI'S PROPOSAL WAS STRONGER THAN K-A E'S IN CERTAIN AREAS OF ENGINEERING. THE ONLY OTHER COMPARATIVE STATEMENTS ARE THOSE WHICH ESTABLISH K-A-E AS SUBMITTING A STRONGER OVERALL PROPOSAL. WE MAY NOT SPECULATE AS TO THE TECHNICAL SUPERIORITY OF EITHER PROPOSAL. SINCE THERE WAS NO ACTUAL DETERMINATION OF TECHNICAL SUPERIORITY IN THE RECORD BEFORE US, WE CANNOT UNEQUIVOCALLY STATE WHETHER THE AWARD TO K-A-E WAS IMPROPER.

MORE IMPORTANTLY, WE MUST RECOGNIZE THE NATURE OF THIS PROCUREMENT AND ITS STATE OF PERFORMANCE. THE AWARD BEING FOR DESIGN AND CONSTRUCTION OF HOUSING AND THE HOUSES BEING PARTIALLY COMPLETED, IT WOULD NOT BE ECONOMICALLY FEASIBLE TO RECOMMEND TERMINATION FOR CONVENIENCE OF THE GOVERNMENT AT THIS TIME. WE ARE, HOWEVER, BRINGING THE ABOVE-MENTIONED PROCUREMENT DEFICIENCY TO THE ATTENTION OF THE SECRETARY OF THE NAVY.