B-182848, MAY 6, 1975

B-182848, MAY 6, 1975

1. REJECTION OF PROTESTER'S PROPOSAL FOR OPERATION OF JOB CORPS CENTER AS NOT WITHIN COMPETITIVE RANGE BECAUSE PROPOSAL WAS NOT REASONABLY SUSCEPTIBLE OF BEING MADE TECHNICALLY ACCEPTABLE THROUGH DISCUSSIONS WAS PROPER WHERE THERE WAS NO ABUSE OF ADMINISTRATIVE DISCRETION IN EVALUATION. 2. ALTHOUGH EVALUATION FACTOR OF "RELATIVE PRICE ADVANTAGE" WAS GIVEN SUBSTANTIALLY GREATER WEIGHT IN SCORING THAN INDICATED BY RFP FOR THAT FACTOR, THEREBY INCREASING THE DIFFERENCE IN TOTAL SCORES BETWEEN PROTESTER'S LOWER SCORED PROPOSAL AND SUCCESSFUL OFFEROR'S PROPOSAL, SUCH ACTION DID NOT HAVE ANY SIGNIFICANT IMPACT ON AGENCY'S DETERMINATION TO EXCLUDE THE PROTESTER'S PROPOSAL FROM THE COMPETITIVE RANGE, SINCE THE RECORD SHOWS THAT THE INADEQUACY OF THE PROTESTER'S TECHNICAL PROPOSAL WAS THE REASON FOR ITS EXCLUSION FROM THE NEGOTIATIONS.

EG&G, INC., EDUCATION SYSTEMS DIVISION:

REQUEST FOR PROPOSALS (RFP) NO. JCC-40-75-0028, WAS ISSUED BY THE U.S. DEPARTMENT OF LABOR, MANPOWER ADMINISTRATION, DALLAS, TEXAS, ON AUGUST 19, 1974. THE SOLICITATION, FOR OPERATION OF THE JOB CORPS CENTER IN TULSA, OKLAHOMA, CALLED FOR THE CONTINUED OPERATION OF A COMPREHENSIVE RESIDENTIAL PROGRAM TO PREPARE YOUNG WOMEN, AGES 16 THROUGH 21 YEARS OF ALL ETHNIC GROUPS, FOR MEANINGFUL EMPLOYMENT AND THE RESPONSIBILITIES OF CITIZENSHIP.

IN RESPONSE TO THE SOLICITATION PROPOSALS WERE RECEIVED FROM EG&G, INC., EDUCATION SYSTEMS DIVISION (EG&G), AND RCA SERVICES COMPANY, EDUCATION SERVICES (RCA). AS A RESULT OF EVALUATION OF THE TECHNICAL ASPECTS OF THEIR PROPOSALS, EG&G AND RCA RECEIVED SCORES OF 38.57 AND 57.14 POINTS, RESPECTIVELY. BASED ON THIS DIFFERENCE IN TECHNICAL SCORES, EG&G WAS FOUND NOT TO BE WITHIN THE COMPETITIVE RANGE AND NEGOTIATIONS WERE HELD ONLY WITH RCA TO WHICH AWARD WAS MADE ON FEBRUARY 6, 1975. EG&G PROTESTS AWARD TO RCA, CLAIMING THAT THE MANPOWER ADMINISTRATION'S DETERMINATION EXCLUDING IT FROM THE COMPETITIVE RANGE NEGOTIATIONS WAS IMPROPER.

IN URGING THAT THE MANPOWER ADMINISTRATION'S DETERMINATION NOT TO INCLUDE IT IN THE CONDUCT OF NEGOTIATIONS WAS IMPROPER, EG&G POINTS OUT THAT THE PROPOSAL IT SUBMITTED WAS SIMILAR IN STYLE TO THAT SUBMITTED SUCCESSFULLY ON FOUR PREVIOUS OCCASIONS AND THAT IT HAS SATISFACTORILY ADMINISTERED THE TULSA JOB CORPS CENTER FOR FOUR SUCCESSIVE YEARS UNDER PRIOR CONTRACTS. WHILE NOT CLAIMING THAT THESE FACTORS ESTABLISH THE ADEQUACY OF ITS PROPOSAL, THE PROTESTER DOES FEEL THAT THEY RAISE A QUESTION AS TO WHETHER EG&G'S PROPOSAL WAS IN FACT SO TECHNICALLY INFERIOR THAT MEANINGFUL NEGOTIATIONS WERE PRECLUDED. EG&G ALSO CHALLENGES THE PROPRIETY OF THE MANPOWER ADMINISTRATION'S METHOD OF EVALUATING ITS PROPOSAL. ITS QUESTION IN THIS REGARD ARISES AS A RESULT OF THE CONTRACTING OFFICER'S LETTER ADVISING EG&G THAT ITS PROPOSAL "RANKED BELOW THE COMPETITIVE NEGOTIATION RANGE IN TOTAL WEIGHTED SCORE FOR PROGRAM CONTENT WHICH IS THE MOST CRITICAL ELEMENT OF THE RFP." SINCE THE EVALUATION SECTION OF THE RFP SETS FORTH NO FACTOR IDENTIFIED AS "PROGRAM CONTENT", EG&G URGES THAT EVALUATION OF ITS PROPOSAL MAY HAVE BEEN CONDUCTED IN DISREGARD OF THE EVALUATION CRITERIA SET FORTH IN THE RFP. IN ADDITION, EG&G POINTS OUT THAT THE EVALUATION TEAM INCLUDED ONE MEMBER FROM OUTSIDE THE DEPARTMENT OF LABOR CONTRARY TO ADVICE SET FORTH IN THE SOLICITATION.

PART I, SECTION D OF THE RFP, ENTITLED "EVALUATION AWARD FACTORS", AS AMENDED, PROVIDES AS FOLLOWS:

"PROSPECTIVE OFFERORS ARE ADVISED THAT THE SELECTION OF AN OFFEROR FOR CONTRACT AWARD IS TO BE MADE AFTER A CAREFUL EVALUATION OF THE PROPOSALS RECEIVED, BY A PANEL OF SPECIALISTS WITHIN THE DEPARTMENT. EACH PANELIST WILL EVALUATE THE PROPOSALS FOR ACCEPTABILITY WITH EMPHASIS ON THE VARIOUS FACTORS ENUMERATED BELOW, ASSIGNING TO THAT FACTOR A NUMERICAL WEIGHTING WITHIN THE RANGE SHOWN FOR EACH OF THOSE FACTORS. THE SCORES WILL THEN BE AVERAGED TO SELECT AN OFFEROR OR DEVELOP A LIST OF OFFERORS.

"THE PROPOSAL WILL BE EVALUATED ON THE FOLLOWING BASIS:

"A. THE DEGREE TO WHICH THE PROPOSAL

DEMONSTRATED UNDERSTANDING OF THE OBJECTIVES OF THE PROGRAM (DESIGN OF PROGRAM) (1 TO 10 POINTS)

"B. PLACEMENT AND RECRUITMENT SUPPORT (1 TO 10 POINTS)

"C. BASIC EDUCATION (1 TO 20 POINTS)

"D. VOCATIONAL TRAINING (1 TO 10 POINTS)

"E. RESIDENTIAL LIVING (1 TO 20 POINTS)

"F. CORPS MEMBER AND ADMINISTRATIVE SUPPORT

SERVICES (1 TO 10 POINTS)

"G.RELATIVE PRICE ADVANTAGE TO THE GOVERNMENT (1 TO 10 POINTS)

"H. RELATIVE EXPERIENCE IN OPERATING

EDUCATIONAL AND TRAINING PROGRAM (1 TO 10 POINTS)"

EVALUATION OF THE PROPOSALS WAS CONDUCTED BY A FOUR MEMBER TEAM. WHILE ONE OF THOSE FOUR TEAM MEMBERS WAS FROM A GOVERNMENT AGENCY OTHER THAN THE DEPARTMENT OF LABOR, WE FIND NO BASIS TO CONCLUDE THAT THIS FACT IN ANY WAY PREJUDICED EG&G OR AFFECTED THE OUTCOME OF THE EVALUATION. THE TEAM EVALUATED BOTH PROPOSALS USING THE EVALUATION FACTORS SET FORTH IN THE SOLICITATION AND A RATING SCHEME OF 1 TO 5. BASED ON THAT REVIEW, EG&G'S AND RCA'S PROPOSALS RECEIVED THE FOLLOWING SCORES:

EVALUATION FACTOR EG&G RCA

A. PROGRAM DESIGN 2 5

B. PLACEMENT AND RECRUITMENT 3 5

C. BASIC EDUCATION 4 4

D. VOCATIONAL TRAINING 3 4

E. RESIDENTIAL LIVING 2 5

F. SUPPORT SERVICES 3 5

G. RELATIVE PRICE ADVANTAGE 2 4

H. RELATED EXPERIENCE 4 3

THE RESPECTIVE SCORES WERE THEN MULTIPLIED BY THE RELATIVE WEIGHTS OF 10 POINTS FOR FACTORS A, B, D, F, G AND H, AND 20 POINTS FOR FACTORS C AND E AS INDICATED IN THE RFP. THE WEIGHTED SCORES FOR ALL FACTORS, EXCEPT FACTOR G, RELATIVE PRICE ADVANTAGE, WERE TOTALED AND THAT TOTAL DIVIDED BY SEVEN, THE NUMBER OF FACTORS CONSIDERED, GIVING EG&G AND RCA SCORES OF 38.57 AND 57.14, RESPECTIVELY, FOR THE TECHNICAL ASPECTS OF THEIR PROPOSALS. TO ARRIVE AT AN EVALUATED SCORE REFLECTING BOTH THE TECHNICAL MERIT OF THE PROPOSALS AND PRICE, THE ENTIRE WEIGHTED SCORES FOR FACTOR G WERE ADDED TO THE ABOVE-INDICATED TECHNICAL SCORES, GIVING EG&G AND RCA COMPOSITE SCORES OF 58.57 AND 97.14, RESPECTIVELY.

A REVIEW OF THE RECORD OF THE EVALUATION PROCESS REFUTES EG&G'S CONTENTION THAT THE MANPOWER ADMINISTRATION CONSIDERED FACTORS OTHER THAN THOSE SET FORTH IN THE RFP AS CRITERIA FOR EVALUATION. WHILE THE DEPARTMENT'S LETTER NOTIFYING THE PROTESTER OF ITS EXCLUSION FROM THE COMPETITIVE RANGE DOES INDICATE THAT EG&G'S PROPOSAL WAS DEFICIENT IN THE AREA OF "PROGRAM CONTENT" THAT REFERENCE IS MERELY TO THOSE EVALUATION FACTORS RELATING TO THE TECHNICAL MERIT OF ITS PROPOSAL AND NOT TO SOME INDEPENDENT CRITERION.

AS STATED, THE EVALUATION TEAM EVALUATED BOTH THE COST AND TECHNICAL PROPOSALS OF THE TWO FIRMS. IN THIS REGARD, UNDER THE EVALUATION PLAN DESCRIBED IN THE RFP, IT APPEARS TO US THAT THE WEIGHTED SCORE FOR FACTOR G, RELATIVE PRICE ADVANTAGE, SHOULD HAVE BEEN INCLUDED IN TOTALING THE WEIGHTED SCORES FOR ALL FACTORS AND THAT THIS TOTAL SHOULD HAVE BEEN DIVIDED BY EIGHT, THE TOTAL NUMBER OF EVALUATION FACTORS, IN ORDER TO PRESERVE THE RELATIVE WEIGHTS OF ALL FACTORS. INSTEAD, AS INDICATED ABOVE, THE ENTIRE WEIGHTED SCORES FOR FACTOR G WERE ADDED TO THE TECHNICAL SCORES. THIS RESULTED IN EG&G'S AND RCA'S RECEIPT OF SCORES OF 58.57 AND 97.14, RESPECTIVELY, WHEREAS APPROPRIATE WEIGHTING OF ALL FACTORS YIELDS LESS DIFFERENTIATED SCORES OF 36.25 AND 55.00, RESPECTIVELY.

NEVERTHELESS, WE DO NOT FIND THAT THE DEPARTMENT'S ACTION IN ACCORDING FACTOR G SUBSTANTIALLY GREATER WEIGHT IN THE SCORING THAN INDICATED BY THE RFP HAD ANY SIGNIFICANT IMPACT ON THE DETERMINATION OF COMPETITIVE RANGE OR ON THE AWARD SELECTION. CONSISTENT WITH THE DEPARTMENT'S LETTER INFORMING EG&G OF ITS EXCLUSION FROM THE COMPETITIVE RANGE, THE RECORD SHOWS THAT EG&G WAS EXCLUDED FROM THAT RANGE BECAUSE OF THE INADEQUACY OF ITS TECHNICAL PROPOSAL. A "MEMORANDUM OF NEGOTIATIONS" PREPARED BY THE CONTRACTING OFFICER STATES IN THIS REGARD AS FOLLOWS:

"DUE TO THE WIDE SPREAD IN THE TOTAL WEIGHTED SCORE, IT WAS DETERMINED BY THE CONTRACTING OFFICER THAT EG&G, INC. WAS NOT IN THE COMPETITIVE AREA FOR NEGOTIATION. THIS DETERMINATION WAS BASED ON THE VAST DIFFERENCE IN THE TECHNICAL PROPOSAL WHICH IS THE MOST CRITICAL ELEMENT OF THE RFP.

"TO ALLOW EG&G, INC. AN OPPORTUNITY TO REWRITE THEIR TECHNICAL PROPOSAL WOULD TEND TO ALLOW A SECOND CHANCE AND WOULD BE AN ADVANTAGE OVER RCA. BOTH CONTRACTORS ARE EXPERIENCED IN JOB CORPS CONTRACTS AND HAVE BEEN IN COMPETITION ON PRIOR CONTRACTS. THEREFORE, THIS DETERMINATION IS MADE IN THE BEST INTEREST OF THE GOVERNMENT TO NEGOTIATE WITH THE HIGHEST RANKING PROPOSER."

FEDERAL PROCUREMENT REGULATIONS SEC. 1-3.805.1(A) (1964 ED.) REQUIRES DISCUSSIONS ONLY WITH RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED. THE TERM "OTHER FACTORS" INCLUDES THE TECHNICAL ACCEPTABILITY OF PROPOSALS, AND A PROPOSAL MAY PROPERLY BE DETERMINED OUTSIDE THE COMPETITIVE RANGE AND THE OFFEROR EXCLUDED FROM NEGOTIATIONS WHERE THE PROPOSAL IS TECHNICALLY UNACCEPTABLE AND IT WOULD REQUIRE MAJOR REVISIONS TO MAKE IT ACCEPTABLE. 46 COMP. GEN. 606, 610 (1967); 52 ID. 382, 388 (1972). IN OUR REVIEW, THE ADMINISTRATIVE DETERMINATION TO EXCLUDE EG&G'S PROPOSAL FROM THE COMPETITIVE RANGE, BASED UPON AN APPROXIMATE 40 PERCENT DIFFERENCE IN TECHNICAL SCORE AND NARRATIVE CHARACTERIZATION QUOTED ABOVE, WAS PROPER.

WHILE WE RECOGNIZE THAT THE PROTESTER STRONGLY DISAGREES WITH THE TECHNICAL EVALUATION AND CHARACTERIZATION OF ITS PROPOSAL IT IS NOT THE FUNCTION OF OUR OFFICE TO EVALUATE PROPOSALS AS THE OVERALL DETERMINATION OF WHETHER A PROPOSAL IS TECHNICALLY ACCEPTABLE AND WITHIN THE COMPETITIVE RANGE IS A MATTER OF ADMINISTRATIVE DISCRETION WHICH WILL NOT BE DISTURBED ABSENT A CLEAR SHOWING THAT THE DETERMINATION WAS ARBITRARY OR UNREASONABLE. MATTER OF PIONEER PARACHUTE CO., INC., B-179263, APRIL 17, 1974. SINCE OUR EXAMINATION OF THE RECORD INDICATES THAT THE EVALUATION WAS IN ACCORDANCE WITH THE STATED EVALUATION CRITERIA, AND EG&G HAS NOT PROVIDED ANY CONTROVERTING EVIDENCE, THERE IS NO BASIS FOR OUR OFFICE TO CONCLUDE THAT THE ADMINISTRATIVE AGENCY ABUSED ITS DISCRETION.

ACCORDINGLY, THE PROTEST IS DENIED.