B-210844, AUG 2, 1983

B-210844, AUG 2, 1983

DIGEST: WHETHER TECHNICAL POINT SPREAD BETWEEN TWO COMPETING PROPOSALS INDICATES SUPERIORITY OF ONE PROPOSAL OVER ANOTHER TO JUSTIFY AWARD AT A HIGHER COST DEPENDS ON THE FACTS AND CIRCUMSTANCES OF EACH CASE AND IS PRIMARILY A MATTER WITHIN THE DISCRETION OF THE PROCURING AGENCY. ALLEGATION THAT PROPOSALS SHOULD HAVE BEEN CONSIDERED ESSENTIALLY EQUAL TECHNICALLY THUS MAKING COST THE DETERMINATIVE AWARD FACTOR IS WITHOUT MERIT WHERE THE AGENCY REASONABLY FOUND THAT THE PROPOSAL RATED 6.25 POINTS (OUT OF 100) HIGHER TECHNICALLY WAS SUPERIOR TO THE PROTESTER'S LOWER-COST PROPOSAL, AND THE RFP STATED THAT TECHNICAL QUALITY WAS MORE IMPORTANT THAN COST.

MIDWEST RESEARCH INSTITUTE:

MIDWEST RESEARCH INSTITUTE PROTESTS THE AWARD OF A COST REIMBURSEMENT CONTRACT TO BATTELLE COLUMBUS LABORATORIES UNDER REQUEST FOR PROPOSALS (RFP) NO. CI 82-0873 ISSUED BY THE ENVIRONMENTAL PROTECTION AGENCY (EPA). THE RFP SOLICITED PROPOSALS FOR THE EVALUATION AND IMPROVEMENT OF TESTING METHODS FOR MEASURING ORGANIC POLLUTANTS IN THE ENVIRONMENT. THE PROTESTER CONTENDS THAT EPA IMPROPERLY AWARDED THE CONTRACT TO A HIGHER- COST OFFEROR WHOSE PROPOSAL WAS ESSENTIALLY EQUAL TO THE PROTESTER'S FROM A TECHNICAL STANDPOINT. WE DENY THE PROTEST.

THE RFP STATED THAT WHILE BOTH TECHNICAL QUALITY AND COST WOULD BE CONSIDERED IN SELECTING A CONTRACTOR, TECHNICAL QUALITY WAS MORE IMPORTANT THAN COST, AND AS PROPOSALS BECAME MORE EQUAL IN THEIR TECHNICAL MERIT, THE EVALUATED COST WOULD BECOME MORE IMPORTANT.

THE TECHNICAL SCORES AND COSTS PROPOSED BY THE THREE FIRMS WITH THE HIGHEST TECHNICAL SCORES (THE OTHER FOUR OFFERORS WERE NOT INCLUDED IN THE COMPETITIVE RANGE) WERE:

TECHNICAL SCORE COST

BATTELLE 82.50 $1,596,147

MIDWEST 76.25 $1,514,836

RADIAN CORPORATION 76.25 $1,543,521 THE AWARD WAS MADE TO BATTELLE AS THE HIGHEST TECHNICALLY RATED OFFEROR ON THE BASIS THAT ITS TECHNICAL SUPERIORITY OUTWEIGHED ANY POTENTIAL COST BENEFITS OFFERED BY THE LOWER- COST FIRMS.

MIDWEST CONTENDS THAT BECAUSE THE TECHNICAL SCORES OF THE THREE HIGHEST RATED PROPOSALS WERE SO CLOSE, THOSE PROPOSALS MUST HAVE BEEN TECHNICALLY EQUAL AND, ACCORDING TO THE EVALUATION CRITERIA, AWARD SHOULD HAVE BEEN MADE TO MIDWEST AS THE LOWEST-COST OFFEROR. WHILE MIDWEST DOES NOT CHALLENGE THE ACTUAL TECHNICAL SCORING, THE FIRM ARGUES THAT NUMERICAL SCORES AWARDED BY AN AGENCY IN THE TECHNICAL EVALUATION OF PROPOSALS MERELY REFLECT AN ATTEMPT TO QUANTIFY AN ESSENTIALLY SUBJECTIVE JUDGMENT AND SHOULD NOT BE USED AS THE ABSOLUTE DETERMINANT OF WHICH FIRM RECEIVES THE CONTRACT AWARD. MIDWEST ALSO SUGGESTS THAT THE EVALUATORS COULD NOT HAVE FOUND A SIGNIFICANT DIFFERENCE AMONG THE TECHNICAL PROPOSALS SINCE EPA IN FACT NEGOTIATED WITH ALL THREE FIRMS.

IN SUPPORT OF ITS POSITION THAT ITS PROPOSAL WAS MOST ADVANTAGEOUS TO THE GOVERNMENT, MIDWEST POINTS TO A TECHNICAL/COST RATIO THAT EPA DEVELOPED AS AN AID IN ANALYZING THE PROPOSALS. THE RESULTS OBTAINED BY EPA WERE AS FOLLOWS:

TECHNICAL/COST RATIO MIDWEST BATTELLE

50/50 88.13 88.70

60/40 85.75 87.46

70/30 83.38 86.22 EPA USED THIS ANALYSIS TO SHOW THAT BATTELLE'S OFFER IS THE MOST ADVANTAGEOUS EVEN IF MIDWEST'S LOWER COST IS CONSIDERED AS IMPORTANT AS BATTELLE'S TECHNICAL SUPERIORITY. MIDWEST, HOWEVER, ASSERTS THAT THIS ANALYSIS DOES NOT INCLUDE CONSIDERATION OF A $26,000 COST REDUCTION OFFERED BY MIDWEST IN RESPONSE TO AN AGENCY REQUEST AFTER BEST AND FINAL OFFERS FOR CONFIRMATION OF CONTINUED AVAILABILITY OF CERTAIN KEY PERSONNEL NAMED IN THE OFFERORS' PROPOSALS. ACCORDING TO THE PROTESTER, CONSIDERATION OF ITS COST REDUCTION PROPOSAL RESULTS IN ITS PROPOSAL BEING RATED HIGHER THAN BATTELLE'S PROPOSAL UNDER EPA'S ANALYSIS IF A 50/50 OR 51/49 TECHNICAL/COST RATIO IS EMPLOYED.

IT IS PRECISELY BECAUSE POINT SCORES ARE OFTEN THE COMPOSITE RESULT OF DISPARATE JUDGMENTS OF TECHNICAL EVALUATORS THAT WE HAVE HELD THAT POINT RATINGS, WHILE USEFUL AS GUIDES FOR INTELLIGENT DECISION-MAKING, SHOULD NOT IN EVERY CASE DETERMINE THE OUTCOME OF THE EVALUATION. BUNKER RAMO CORPORATION, 56 COMP.GEN. 712, 716 (1977), 77-1 CPD 427; WHEELER INDUSTRIES, INC., B-193883, JULY 20, 1979, 79-2 CPD 41. WHETHER A GIVEN POINT SPREAD BETWEEN COMPETING PROPOSALS INDICATES A SIGNIFICANT SUPERIORITY OF ONE OVER ANOTHER, HOWEVER, IS A MATTER PRIMARILY WITHIN THE DISCRETION OF THE CONTRACTING AGENCY. GREY ADVERTISING, INC., 55 COMP.GEN. 1111 (1976), 76-1 CPD 325. THUS, WE HAVE UPHELD AN AWARD TO A HIGHER-COST PROPOSAL JUDGED TECHNICALLY SUPERIOR BY THE CONTRACTING AGENCY DESPITE A TECHNICAL POINT SCORE SPREAD OF ONLY THREE POINTS. 52 COMP.GEN. 358 (1972); SEE ALSO BELLMORE JOHNSON TOOL COMPANY, B-179030, JANUARY 24, 1974, 74-1 CPD 26, WHERE THE HIGHER COST PROPOSAL WAS RATED ONLY FOUR POINTS HIGHER THAN THE LOW-COST OFFEROR BUT NEVERTHELESS PROPERLY WAS FOUND TO BE TECHNICALLY SUPERIOR AND ACCEPTED.

THE PROTESTER HAS OFFERED NO SUPPORT FOR ITS POSITION, EXCEPT FOR ITS RELIANCE ON THE CLOSE POINT SPREAD (76.25 POINTS TO 82.50 POINTS), THAT ITS PROPOSAL IS TECHNICALLY EQUAL TO THAT SUBMITTED BY BATTELLE. ON THE OTHER HAND, THE RECORD INDICATES THAT EPA VIEWED BATTELLE'S PROPOSAL AND HIGHER TECHNICAL RATING AS REFLECTING A TECHNICAL SUPERIORITY THAT OUTWEIGHED ANY POTENTIAL COST BENEFIT OF ACCEPTING MIDWEST'S PROPOSAL. FOR EXAMPLE, THE CONTRACTING OFFICER STATES THAT, IN HIS JUDGMENT, BATTELLE'S TECHNICAL PROPOSAL CLEARLY DEMONSTRATED A SUPERIOR UNDERSTANDING OF EPA REGULATORY AND MONITORING REQUIREMENTS. THE RFP ADVISED OFFERORS THAT TECHNICAL QUALITY WAS MORE IMPORTANT THAN COST, AND MIDWEST'S BARE DISAGREEMENT WITH THE SIGNIFICANCE OF THE DIFFERENCE IN TECHNICAL SCORES PROVIDES NO LEGAL BASIS FOR OUR OFFICE TO QUESTION THE CONTRACTING AGENCY'S JUDGMENT THAT BATTELLE'S 8-PERCENT HIGHER TECHNICAL SCORE INDICATES A TECHNICAL SUPERIORITY WORTH THE 5 PERCENT EXTRA COST ASSOCIATED WITH THE PROPOSAL.

AS TO THE RESULTS OF EPA'S TECHNICAL/COST ANALYSIS IF MIDWEST'S $26,000 COST REDUCTION IS CONSIDERED, WE FIRST NOTE THAT THE FIRM SUBMITTED THE REDUCTION AFTER BEST AND FINAL OFFERS, SO THAT IT COULD NOT BE CONSIDERED IN THE SELECTION DECISION, SEE REAL FRESH, INC., B-204604, DECEMBER 31, 1981, 81-2 CPD 522 (ALTHOUGH THE RECORD SHOWS THAT EPA DID ANALYZE THE REDUCED-COST OFFER THE SAME WAY IT ANALYZED THE BEST AND FINAL OFFERS). IN ANY EVENT, MIDWEST'S SHOWING THAT WITH THE $26,000 REDUCTION ITS OFFER IS MORE ADVANTAGEOUS THAN BATTELLE'S OFFER IF TECHNICAL QUALITY AND COST ARE CONSIDERED ALMOST EQUAL DOES NOT MAKE THE SELECTION OF BATTELLE WRONG. THE REASON IS THAT THE RFP CLEARLY ASSIGNED GREATER WEIGHT TO TECHNICAL FACTORS, AND IN THAT CASE COST GENERALLY BECOMES THE DETERMINATIVE FACTOR ONLY IF, UNLIKE HERE, THE AGENCY FINDS THAT THE TECHNICAL PROPOSALS ARE ESSENTIALLY EQUAL. SEE APPLIED FINANCIAL ANALYSIS, LTD., B-194388.2, AUGUST 10, 1979, 79-2 CPD 113. AS STATED ABOVE, THE RECORD DOES NOT SUPPORT MIDWEST'S CONTENTION, WHICH IS BASED ONLY ON THE 6.25 POINT TECHNICAL SCORE DIFFERENCE, THAT THE PROPOSALS WERE ESSENTIALLY EQUAL TECHNICALLY.

IN OUR VIEW EPA REASONABLY JUDGED BATTELLE'S PROPOSALS MORE ADVANTAGEOUS TO THE GOVERNMENT DESPITE ITS HIGHER COST, A JUDGMENT THAT CONFORMED TO THE RFP'S EVALUATION SCHEME. CONSEQUENTLY, WE REJECT MIDWEST'S ARGUMENT THAT IT SHOULD HAVE RECEIVED THE AWARD BASED ON ITS LOWER COST. THE PROTEST IS DENIED.