B-219652, DEC 10, 1985, 85-2 CPD 642

CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - DISCUSSION WITH ALL OFFERORS REQUIREMENT - FAILURE TO DISCUSS - ELIMINATION FROM COMPETITIVE RANGE UNJUSTIFIED DIGEST: GAO DOES NOT ACCEPT AGENCY'S ARGUMENT THAT PROTESTER COULD NOT HAVE IMPROVED ITS EVALUATION SCORES IN THE EXPERIENCE, EQUIPMENT AND MANAGEMENT CATEGORIES SINCE PROTESTER'S DEFICIENT PRIOR PERFORMANCE, WHICH WAS FIXED, COULD NOT HAVE BEEN IMPROVED. THE EQUIPMENT AND MANAGEMENT CATEGORIES ARE SUSCEPTIBLE TO IMPROVEMENT THROUGH DISCUSSIONS.

ACME REPORTING COMPANY, INC.:

ACME REPORTING COMPANY, INC. (ACME), PROTESTS THE AWARD OF CONTRACTS TO ON THE RECORD REPORTING (OTR) AND V/ARS, INC. (V/ARS), UNDER THE UNITED STATES TAX COURT'S REQUEST FOR PROPOSALS (RFP) 85-10 FOR ELECTRONIC COURT REPORTING AND TRANSCRIPTION SERVICES.

THE PROTEST IS SUSTAINED.

THE SOLICITATION REQUESTED OFFERS ON PER PAGE RATES FOR REPORTING AND TRANSCRIPTION SERVICES FOR ONE OR MORE OF FIVE GEOGRAPHIC REGIONS OR FOR THE ENTIRE NATION. OFFERS WERE TO BE EVALUATED IN ACCORDANCE WITH THE FOLLOWING AWARD CRITERIA:

I. DOCUMENTED PREVIOUS EXPERIENCE 35 POINTS

II. COST 35 POINTS

III. EQUIPMENT INVENTORY 20 POINTS

IV. EXPERIENCE AND QUALIFICATION

OF MANAGEMENT AND ADMINISTRATIVE

SUPPORT PERSONNEL 10 POINTS

OFFERORS WERE REQUIRED TO PROPOSE RATES FOR REGULAR CASES AND SMALL TAX CASES FOR THE TAX COURT, THE RESPONDENT AND THE PETITIONER AND ALSO FOR "EXTRA" COPIES, ON A STANDARD, EXPEDITED AND DAILY TRANSCRIPT BASIS.

ON JULY 30, 1985, ACME WAS ADVISED BY THE CONTRACTING OFFICER THAT THE TAX COURT INTENDED TO AWARD A CONTRACT FOR THE WESTERN REGION TO V/ARS, A CONTRACT FOR THE SOUTH CENTRAL REGION TO OTR, AND A CONTRACT FOR THE OTHER THREE REGIONS TO ACME. PERFORMANCE UNDER THESE CONTRACTS WAS TO BEGIN ON SEPTEMBER 1. ON AUGUST 5, ACME PROTESTED AGAINST THE INTENDED AWARDS TO V/ARS AND OTR TO THIS OFFICE. BY LETTER DATED AUGUST 7, THE TAX COURT NOTIFIED OUR OFFICE THAT IT WAS PROCEEDING WITH AWARDS TO THE THREE SUCCESSFUL OFFERORS, ACME, V/ARS AND OTR, SINCE URGENT AND COMPELLING CIRCUMSTANCES SIGNIFICANTLY AFFECTING INTEREST OF THE UNITED STATES DID NOT PERMIT WAITING FOR GAO'S DECISION PRIOR TO AWARD.

WHILE THE COURT IS NOT REQUIRED TO ADHERE TO THE FEDERAL ACQUISITION REGULATION (FAR) AS THE COURT IS NOT PART OF THE EXECUTIVE BRANCH, THE TAX COURT HAS STATED IN ITS REPORTING THAT IT DOES, IN FACT, FOLLOW THE FAR. CSA REPORTING CORPORATION, 54 COMP.GEN. 645 (1975), 75-1 CPD PARA. 70.

ACME STATES THAT SINCE IT WAS THE HIGHEST RATED OFFEROR WITH THE LOWEST PRICE FOR BOTH THE WESTERN AND SOUTH CENTRAL REGIONS, IT SHOULD HAVE BEEN AWARDED THOSE CONTRACTS. ACME ALSO CONTENDS THAT IT WAS IMPROPER FOR THE TAX COURT TO HOLD DISCUSSIONS WITH AND TO REQUEST BEST AND FINAL OFFERS FROM V/ARS AND OTR WHILE PROVIDING NO SUCH OPPORTUNITY TO ACME.

OUR REVIEW OF THE EVALUATION SCORES SHOWS THAT ACME RECEIVED A TOTAL SCORE OF 70 FOR ALL OF THE REGIONS ON WHICH IT OFFERED. ACME SCORED 35 POINTS, THE MAXIMUM POSSIBLE, IN THE COST CATEGORY. OTR WAS SELECTED FOR THE SOUTH CENTRAL CONTRACT, AFTER DISCUSSIONS AND ITS BEST AND FINAL OFFER, BASED ON A SCORE OF 70, THE SAME SCORE ACME RECEIVED FOR THAT REGION. V/ARS, AFTER DISCUSSIONS AND ITS BEST AND FINAL OFFER, RECEIVED A FINAL SCORE OF 85 FOR THE WESTERN REGION AND WAS AWARDED THAT CONTRACT.

THE COURT ADMITS THAT IT CONDUCTED PRICE DISCUSSIONS WITH V/ARS AND OTR AND RECEIVED THEIR BEST AND FINAL OFFERS WHEREIN BOTH FIRMS REDUCED THEIR PROPOSED PRICES AND ACCORDINGLY INCREASED THEIR SCORES. THE COURT ARGUES, HOWEVER, THAT ACME WAS NOT PREJUDICED BY THE COURT'S FAILURE TO HOLD DISCUSSIONS OR TO REQUEST A BEST AND FINAL OFFER FROM ACME BECAUSE ACME COULD NOT HAVE IMPROVED ITS SCORE AFTER ITS INITIAL OFFER AND, THUS, COULD NOT HAVE WON THE WESTERN OR SOUTH CENTRAL REGIONS. THE COURT STATES THAT ACME RECEIVED THE MAXIMUM POINT SCORE ON COST AND, ACCORDINGLY, COULD NOT HAVE IMPROVED ITS SCORE. WITH REGARD TO THE EVALUATION SCORES FOR EXPERIENCE, EQUIPMENT AND MANAGEMENT, THE COURT ARGUES THAT, ALTHOUGH ACME DID NOT SCORE THE MAXIMUM POINTS, DISCUSSIONS AND A REQUEST FOR A BEST AND FINAL OFFER FROM ACME WOULD HAVE BEEN FUTILE SINCE ACME COULD NOT HAVE IMPROVED ITS SCORE. THE TAX COURT STATES THAT ACME LOST POINTS IN EXPERIENCE, EQUIPMENT AND MANAGEMENT BECAUSE OF ITS POOR PAST PERFORMANCE. THE COURT CONTENDS THAT IN VIEW OF THIS PAST DEFICIENT PERFORMANCE, ACME HAD NO POSSIBILITY OF CORRECTING THESE DEFICIENCIES AND IMPROVING ITS SCORES AT THE TIME THE PROCUREMENT WAS CONDUCTED.

AGENCIES MUST CONDUCT DISCUSSIONS WITH ALL RESPONSIBLE OFFERORS WITHIN A COMPETITIVE RANGE PRIOR TO AWARDING A CONTRACT. FAR SEC. 15.610 (B) (APRIL 1, 1985).

THE TAX COURT'S ARGUMENT THAT ACME COULD NOT HAVE IMPROVED ITS SCORE AND, THEREFORE, DISCUSSIONS WERE NOT REQUIRED IS MERELY CONCLUSORY. ALTHOUGH THE COURT CONTENDS THAT ACME'S EXPERIENCE SCORE COULD NOT BE CHANGED BECAUSE IT WAS BASED ON THE IMMUTABLE HISTORY OF ACME'S PAST PERFORMANCE FOR THE TAX COURT, DISCUSSIONS MIGHT HAVE LED TO IMPROVEMENT IN ACME'S SCORE IN THE EQUIPMENT AND MANAGEMENT EVALUATION CATEGORIES, IN WHICH ACME SCORED, RESPECTIVELY, 10 AND 5 OUT OF A POSSIBLE 20 AND 10 POINTS.

FURTHER, WHILE ACME MAY HAVE HAD POOR PERFORMANCE IN CERTAIN REGIONS IN THE PAST, WE NOTE THAT IT WAS AWARDED THREE OF THE FIVE REGIONS HERE. ALSO, FROM THE RECORD BEFORE OUR OFFICE, IT APPEARS THE CONTRACTING OFFICER NEVER FOUND ACME'S PAST PERFORMANCE SO POOR THAT HE CONSIDERED MAKING A NONRESPONSIBILITY DETERMINATION.

ACCORDINGLY, WE SUSTAIN ACME'S PROTEST. WE RECOGNIZE THE TAX COURT HAS A CONTINUING NEED FOR THE REPORTING SERVICES. THEREFORE, WE RECOMMEND THAT THE COURT RESOLICIT ITS NEEDS FOR THE SOUTH CENTRAL AND WESTERN REGIONS AS SOON AS PRACTICABLE BUT, UNTIL SUCH TIME AS AWARDS ARE MADE UNDER A NEW SOLICITATION, THE INCUMBENT CONTRACTORS MAY CONTINUE TO PROVIDE THE SERVICES.

ACME ALSO PROTESTS THAT V/ARS AND OTR'S PROPOSALS FAILED TO COMPLY WITH THE SOLICITATION'S MANDATORY REQUIREMENT THAT THE RATE OFFERED TO THE TAX COURT FOR REGULAR CASE SERVICE "MUST BE TWENTY PERCENT LESS THAN THE COMMON RATE PAID BY THE PARTIES." THE TAX COURT CONTENDS THAT THE 20 PERCENT DIFFERENTIAL WAS MERELY A POLICY OF THE COURT'S WHICH IT DID NOT INTEND TO MAKE MANDATORY AND FOR THAT REASON THE POLICY WAS ONLY STATED IN A COVER LETTER ACCOMPANYING THE RFP BUT WAS NOT STATED IN THE RFP ITSELF.

IT IS UNNECESSARY TO RULE HERE WHETHER THE 20 PERCENT DIFFERENTIAL WAS MANDATORY BECAUSE OF THE RECOMMENDATION THAT THE TAX COURT RESOLICIT ITS NEEDS. IN A RESOLICITATION, WE RECOMMEND, HOWEVER, THAT THE TAX COURT SHOULD MAKE IT CLEAR WHETHER OR NOT THE DIFFERENTIAL IS MANDATORY TO AVOID AND CONFUSION ON THE PART OF OFFERORS.

THE PROTEST IS SUSTAINED.