B-206271, OCT 29, 1982

B-206271, OCT 29, 1982

DIGEST: 1. RFP WHICH STATED THAT TECHNICAL PROPOSALS WOULD BE EVALUATED ON A COMPETITIVE BASIS PUT OFFERORS ON CLEAR NOTICE THAT AGENCY WOULD DIFFERENTIATE QUALITATIVELY AMONG PROPOSALS ON BASIS OF TECHNICAL MERIT AND THAT PROPOSALS WHICH ONLY MINIMALLY SATISFIED RFP WOULD NOT BE RANKED AS HIGH AS PROPOSALS WHICH EXCEEDED MINIMUM REQUIREMENTS. PROTEST PREMISED ON UNDERLYING ASSUMPTION THAT MINIMALLY ACCEPTABLE RESPONSE TO RFP WAS ENTITLED TO HIGH RANKING IN TECHNICAL EVALUATION IS WITHOUT MERIT. 2. PROTEST THAT AGENCY COULD NOT "DOWNGRADE" PROPOSAL FOR FAILURE TO REFLECT UNDERSTANDING OF PROJECT, BASED ON FAILURE TO RECOMMEND OR DISCUSS ALTERNATIVE METHODS OF STUDY, IS WITHOUT MERIT. RFP SPECIFICALLY ESTABLISHED UNDERSTANDING OF PROJECT AS AN IMPORTANT EVALUATION CRITERIA FOR WHICH DISCUSSION OR RECOMMENDATION OF ALTERNATIVE METHODS WAS AN IMPORTANT INDICATOR. 3. AGENCY REASONABLY CONCLUDED THAT PROTESTER'S MOST EXPERIENCED SCIENTIFIC INVESTIGATOR, A CONSULTANT, WOULD NOT BE AVAILABLE IMMEDIATELY AFTER AWARD TO PERFORM ANALYTICAL FUNCTIONS BECAUSE CONCLUSION WAS BASED ON EXPLICIT STATEMENT IN PROTESTER'S PROPOSAL THAT CONSULTANT WOULD PRIMARILY BE ENGAGED IN TRAINING IN INITIAL STAGES OF STUDY. 4. CONTENTION THAT AGENCY IMPROPERLY EVALUATED PROTESTER'S QUALITY ASSURANCE PROGRAM AND PROPOSED METHOD OF TAKING OCEAN BOTTOM PHOTOGRAPHS IS WITHOUT MERIT. RFP EMPHASIZED TECHNICAL QUALITY OF PROPOSAL AS AN EVALUATION FACTOR. AGENCY'S EVALUATION REFLECTS REASONABLE JUDGMENT THAT PROTESTER'S PROPOSAL, WHICH DID NOT FULLY EXPLAIN APPLICATION OF GENERALIZED QUALITY ASSURANCE MANUAL TO SPECIFIC STUDY AND PROPOSED SINGLE CAMERA METHOD OF BOTTOM PHOTOGRAPHY, WAS MINIMALLY ACCEPTABLE, BUT NOT EXCEPTIONAL.

MARINE RESEARCH, INC.:

MARINE RESOURCES, INC. (MRI), PROTESTS THE AWARD OF A CONTRACT BY THE BUREAU OF LAND MANAGEMENT (BLM) TO BATTELLE MEMORIAL INSTITUTE (BATTELLE) FOR AN ENVIRONMENTAL STUDY ON GEORGES BANK. MRI CONTESTS BLM'S EVALUATION OF TECHNICAL PROPOSALS. WE DENY THE PROTEST.

IN LATE 1981, BLM ISSUED REQUEST FOR PROPOSALS (RFP) NO. AA851-RP1 28, FOR "GEORGES BANK BENTHIC INFAUNA MONITORING" AS PART OF BLM'S ECOLOGICAL RESPONSIBILITIES FOR OFFSHORE MINERAL LEASING ON THE OUTER CONTINENTAL SHELF. (BENTHIC INFAUNA REFERS TO ANIMALS LIVING IN OR ON THE SEA BOTTOM.) THE STUDY REQUIRED THAT BOTTOM SAMPLES PICKED UP ON A SEASONAL BASIS FROM SPECIFIED SITES WOULD BE SIEVED AND THE BENTHIC INFAUNA CATALOGUED AND ANALYZED ON A PRE- AND POST-DRILLING BASIS TO DETERMINE THE EFFECTS, IF ANY, OF OFFSHORE OIL DRILLING ON THE GEORGES BANK BENTHIC COMMUNITY; PHOTOGRAPHS OF THE SAMPLE SITES WERE ALSO TO BE TAKEN AS AN ADDITIONAL ANALYTICAL TOOL. THE NUMEROUS SPECIFIC SERVICES TO BE PROVIDED WERE OUTLINED IN PART "B" OF THE RFP, WHICH ALSO STATED THAT OFFERORS COULD PROPOSE AND/OR DISCUSS ALTERNATIVE PROCEDURES WHICH MIGHT CONTRIBUTE TO THE PROGRAM. THE CONTRACTOR WAS TO BEGIN BY ANALYZING A SUBSTANTIAL BACKLOG OF SAMPLES ALREADY COLLECTED BY BLM.

THE RFP SPECIFICALLY ADVISED OFFERORS THAT BLM WOULD EVALUATE PROPOSALS COMPETITIVELY, USING THE FOLLOWING THE EVALUATION CRITERIA:

I. SCIENTIFIC APPROACH 70 POINTS A. UNDERSTANDING/CAPABILITY 35 B. QUALITY OF ANALYSIS 35 II. SCIENTIFIC AND TECHNICAL PERSONNEL 70 POINTS A. EXPERIENCE 36 B. KEY PERSONNEL TIME 17 C. OVERALL EXPERTISE 17 III. MANAGEMENT 30 POINTS A. COMMITMENT/PLANNING/RESOURCES 20 B. COMMUNICATIONS/COORDINATION 10 IV. COST PROPOSAL 30 POINTS REALISM AND COST EFFECTIVENESS

BLM RECEIVED SEVEN PROPOSALS FROM WHICH BLM SELECTED FIVE FOR DISCUSSIONS AND THE SUBMISSION OF REVISED TECHNICAL PROPOSALS. BLM RANKED MRI FOURTH OUT OF THE FIVE FINALISTS. THE CONTRACT WAS AWARDED TO BATTELLE ON THE BASIS THAT THE HIGHEST RANKED OFFEROR AND BATTELLE, THE SECOND RANKED OFFEROR, WERE SUBSTANTIALLY EQUAL IN TECHNICAL MERIT AND BATTELLE'S PROJECTED COSTS WERE CONSIDERABLY LOWER.

MRI CONTENDS THAT BLM DID NOT EVALUATE ITS PROPOSAL IN ACCORDANCE WITH THE EVALUATION CRITERIA. MRI ALLEGES THAT BLM DOWNGRADED MRI FOR NOT PROVIDING INFORMATION NOT REQUIRED BY THE RFP AND ALSO ASSERTS THAT BLM DREW UNFOUNDED INFERENCES FROM MRI'S PROPOSAL. MRI STATES THAT ITS PROPOSAL RESPONDED TO EACH OF THE NUMEROUS SERVICES OUTLINED IN PART "B" OF THE RFP, WHICH IS ALL THAT THE RFP REQUIRED, AND ARGUES THAT BLM'S DOWNGRADING WAS THEREFORE ARBITRARY AND INCONSISTENT WITH THE RFP.

AS AN INITIAL MATTER, WE NOTE THAT IT IS NEITHER OUR FUNCTION NOR PRACTICE TO DETERMINE INDEPENDENTLY THE ACCEPTABILITY OR RELATIVE TECHNICAL MERIT OF PROPOSALS. OUR REVIEW IS LIMITED TO EXAMINING WHETHER THE AGENCY'S EVALUATION WAS FAIR AND REASONABLE. WE WILL QUESTION CONTRACTING OFFICIALS' ASSESSMENTS OF THE TECHNICAL MERITS OF PROPOSALS ONLY UPON A CLEAR SHOWING OF UNREASONABLENESS, ABUSE OF DISCRETION, OR VIOLATION OF PROCUREMENT STATUTES OR REGULATIONS. JOULE TECHNICAL CORPORATION, B-197249, SEPTEMBER 3, 1980, 80-2 CPD 231; JOSEPH LEGAT ARCHITECTS, B-187160, DECEMBER 13, 1977, 77-2 CPD 458.

THE GENERAL TENOR OF MRI'S PROTEST, AND PARTICULARLY MRI'S USE OF THE TERM "DOWNGRADED," SUGGESTS STRONGLY THAT MRI'S PROTEST IS PREMISED ON A MISUNDERSTANDING OF THE WAY IN WHICH PROPOSALS WERE TO BE EVALUATED. THE RFP EXPLICITLY STATED THAT TECHNICAL PROPOSALS WOULD BE EVALUATED ON A COMPETITIVE BASIS AND, IN SO DOING, PUT OFFERORS ON CLEAR NOTICE THAT BLM WOULD DIFFERENTIATE AMONG PROPOSALS ON THE BASIS OF TECHNICAL MERIT AS MEASURED BY THE EVALUATION CRITERIA STATED IN THE RFP. IN THESE CIRCUMSTANCES, IT SHOULD HAVE BEEN APPARENT TO MRI THAT PROPOSALS WOULD BE GRADED ON THE QUALITY OF THE RESPONSES TO THE RFP AND THAT PROPOSALS WHICH ONLY MINIMALLY SATISFIED THE REQUIREMENTS OF THE RFP WOULD NOT BE RATED AS HIGHLY AS PROPOSALS WHICH EXCEEDED THE MINIMUM.

MRI STATES THAT BLM EXPRESSED CONCERN THAT MRI LACKED UNDERSTANDING OF THE PROGRAM OBJECTIVES AND REDUCED ITS SCORE BECAUSE OF MRI'S FAILURE TO RECOMMEND OR DISCUSS MORE EFFECTIVE ALTERNATIVE PROCEDURES AND THE RATIONALE THEREFOR. MRI CONTENDS THAT DISCUSSION OF ALTERNATIVES WAS OPTIONAL AND THAT MRI'S PROPOSAL COMPLETELY RESPONDED TO EACH OF THE SPECIFIC REQUIRED SERVICES.

THE RFP SPECIFICALLY ESTABLISHED HOW WELL AN OFFEROR DEMONSTRATED AN UNDERSTANDING OF THE PROGRAM OBJECTIVES AS AN IMPORTANT EVALUATION SUBCRITERION. WE FIND THAT BLM'S ASSESSMENT OF MRI'S PROPOSAL REFLECTS A REASONABLE JUDGMENT THAT MRI'S RESPONSE DOES NOT DEMONSTRATE AS COMPREHENSIVE AN UNDERSTANDING OF THE PROJECT AS MIGHT HAVE BEEN SHOWN IN A DISCUSSION OF POTENTIALLY MORE EFFECTIVE ALTERNATE PROCEDURES.

BLM CONCLUDED FROM MRI'S PROPOSAL THAT INITIATION OF THE PROGRAM, PARTICULARLY THE ANALYSIS OF THE RETAINED SAMPLES BACKLOG, WOULD BE UNACCEPTABLY DELAYED. BLM SO CONCLUDED BECAUSE THIS EFFORT REQUIRED THE MOST EXPERIENCED PERSONNEL AND MRI'S MOST EXPERIENCED SCIENTIFIC INVESTIGATOR, A CONSULTANT, WOULD BE TRAINING MRI'S PERSONNEL AND BE UNABLE TO PARTICIPATE FULLY IN ANALYSIS IMMEDIATELY AFTER CONTRACT AWARD. MRI ASSERTS THAT THERE IS NO BASIS FOR THIS CONCLUSION IN ITS PROPOSAL. MRI ALSO CONTENDS THAT BLM'S ACCEPTANCE OF BATTELLE'S PROPOSAL CONSTITUTED AN IMPLICIT APPROVAL OF BATTELLE'S INTENT TO HIRE INEXPERIENCED PERSONNEL, SUGGESTING THAT BLM DID NOT TREAT MRI AND BATTELLE EQUALLY.

BLM RECOGNIZED THE CREDENTIALS OF MRI'S PROPOSED CONSULTANT AND ACKNOWLEDGED MRI'S EXPERIENCE IN BENTHIC STUDIES. BLM WAS CONCERNED, HOWEVER, THAT THIS STUDY WOULD USE A SMALLER SIEVE THAN HAD BEEN USED IN MOST OF MRI'S PRIOR WORK, YIELDING MORE AND SMALLER INFAUNAL SAMPLES, WHICH ARE MORE DIFFICULT TO ANALYZE AND CLASSIFY, WITH THE CONCOMITANT CONCERN THAT EVEN MRI'S EXPERIENCED PERSONNEL WOULD REQUIRE ADDITIONAL TRAINING. MRI'S PROPOSAL STATES SPECIFICALLY THAT "MOST OF THE CONSULTANT'S FIRST AND SOME OF HIS SECOND WORK PERIOD AT MRI WILL BE DEDICATED TO INSTRUCTION AND EVALUATION" CONCERNING MRI'S ANALYTIC EFFORTS. GIVEN MRI'S EXPRESSED INTENT TO USE THIS CONSULTANT TO TRAIN MRI'S STAFF, WE FIND BLM'S ASSESSMENT OF THE CONSULTANT'S AVAILABILITY TO PARTICIPATE ACTIVELY IN THE INITIAL ANALYSIS TO BE REASONABLE. WITH RESPECT TO MRI'S SUGGESTION OF UNEQUAL TREATMENT OF MRI AND BATTELLE, WE NOTE ONLY THAT BATTELLE'S PROPOSAL IS SILENT CONCERNING BATTELLE'S HIRING PRACTICES AND THAT BATTELLE HAD MORE EXPERIENCE IN STUDIES USING THE SMALLER SIEVE.

MRI CRITICIZES BLM'S ASSESSMENT OF MRI'S QUALITY ASSURANCE PROGRAM AND BLM'S EVALUATION OF MRI'S PROPOSED METHOD OF TAKING BOTTOM PHOTOGRAPHS. MRI POINTS OUT THAT ITS PROPOSAL INCLUDED ITS CORPORATE QUALITY ASSURANCE MANUAL AND INCORPORATED A PROPOSED METHOD OF TAKING BOTTOM PHOTOGRAPHS. MRI CONTENDS THAT THESE TWO EXAMPLES PROVIDE FURTHER EVIDENCE OF BLM'S IMPROPER EVALUATION.

BLM NOTED THAT MRI'S QUALITY ASSURANCE PROGRAM MANUAL WAS INCLUDED WITH MRI'S PROPOSAL, BUT NOTED ALSO THAT IT WAS GENERALIZED AND THAT MRI FAILED TO ADDRESS HOW IT WOULD APPLY SPECIFICALLY TO THIS STUDY. BLM ALSO DETERMINED THAT MRI PROPOSED AN ACCEPTABLE SINGLE CAMERA METHOD OF BOTTOM PHOTOGRAPHY, BUT THAT OTHER METHODS, SUCH AS THE USE OF TWO CAMERAS, WOULD PROVIDE MORE COMPREHENSIVE PHOTOGRAPHIC COVERAGE. IN EACH OF THESE INSTANCES, BLM VIEWED MRI'S PROPOSAL AS ACCEPTABLE - BUT NOT EXCEPTIONAL - AND RATED IT ACCORDINGLY. WE FIND NO IMPROPRIETY HERE.

IN ITS INITIAL PROTEST TO OUR OFFICE, MRI ALLEGED ADDITIONAL IMPROPRIETIES IN BLM'S EVALUATION OF ITS PROPOSAL WHICH MRI HAS NOT PURSUED ACTIVELY. THEREFORE, WE MERELY NOTE THAT THESE CONTENTIONS EVIDENCE THE SAME MISAPPREHENSION AS MRI'S PRINCIPAL CONTENTIONS, DISCUSSED ABOVE, THAT ACCEPTABLE PROPOSALS WOULD RECEIVE THE HIGHEST RATING. AS AN EXAMPLE, BLM FOUND THAT MRI'S PROPOSAL SHOWED A LACK OF EXPERTISE IN SELECTING A VESSEL FOR THE SPRING 1982 CRUISE; MRI STATES THAT THE RFP ONLY REQUIRED AN OFFEROR TO SELECT A VESSEL AND PROVIDE A COST BREAKDOWN AND POINTS OUT THAT MRI IDENTIFIED TWO CANDIDATES AND RECOMMENDED USING THE LOWER COST VESSEL. HOWEVER, MRI'S PROPOSAL DID NOT OTHERWISE DIFFERENTIATE BETWEEN THE TWO VESSELS BEYOND NOTING THAT ONE WAS REPORTEDLY A "ROLLER" IN HIGH SEAS. WE SHARE BLM'S VIEW THAT THIS WAS ONLY A MINIMAL RESPONSE GIVEN MRI'S ALMOST TOTAL LACK OF DISCUSSION OF THE POTENTIAL OPERATIONAL ADVANTAGES OR DISADVANTAGES OF EACH VESSEL WITH REGARD TO THEIR RESPECTIVE CAPABILITIES, FACILITIES AND EQUIPMENT AS THESE FACTORS MIGHT AFFECT THE STUDY.

IN OUR VIEW, THESE ADDITIONAL CONTENTIONS ESTABLISH ONLY THAT MRI MAY HAVE BEEN ENTITLED TO THE ACCEPTABLE - OR SLIGHTLY MORE THAN ACCEPTABLE - RANKING WHICH BLM GAVE THESE ASPECTS OF MRI'S PROPOSAL; THERE IS NO DEMONSTRATION THAT BLM ARBITRARILY DENIED MRI A SUPERIOR RATING. IN SUM, WE FIND THAT BLM'S EVALUATION OF MRI'S PROPOSAL WAS REASONABLE AND CONSISTENT WITH THE EVALUATION CRITERIA.

THE PROTEST IS DENIED.