B-221900.2, AUG 8, 1986, OFFICE OF GENERAL COUNSEL

B-221900.2, AUG 8, 1986, OFFICE OF GENERAL COUNSEL

CONTRACTS - NEGOTIATION - AWARDS - TO OTHER THAN LOW OFFEROR DIGEST: BASED UPON THE RECORD BEFORE GAO, IT APPEARS THAT AWARD TO A HIGHER PRICED, TECHNICALLY SUPERIOR FIRM WAS REASONABLE AND CONSISTENT WITH THE STATED EVALUATION AND AWARD CRITERIA.

THE HONORABLE ROBERT F. SMITH:

HOUSE OF REPRESENTATIVES

WE REFER TO YOUR LETTER DATED MARCH 27, 1986, CONCERNING A PROTEST FILED BY SEE DESIGN & PRODUCTION, INC. (SEE), AGAINST THE AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) NO. R6-85-105N ISSUED BY THE UNITED STATES DEPARTMENT OF AGRICULTURE (USDA) FOR THE CONSTRUCTION OF THE MOUNT SAINT HELENS VISITOR CENTER EXHIBITS.

BY NOTICE DATED MARCH 4, 1986, WE DISMISSED SEE'S PROTEST AGAINST THE RFP BECAUSE ITS PROTEST INVOLVED CERTAIN ALLEGED SOLICITATION IMPROPRIETIES AND WAS RECEIVED IN OUR OFFICE AFTER AWARD WAS MADE. OUR BID PROTEST REGULATIONS REQUIRE THAT PROTEST BASED ON ALLEGED IMPROPRIETIES APPARENT ON THE FACE OF THE SOLICITATION MUST BE FILED WITH THE CONTRACTING AGENCY OR OUR OFFICE BEFORE THE DATE FOR RECEIPT OF INITIAL PROPOSALS. 4 C.F.R. SEC. 21.2(A)(1) (1986).

IN ORDER TO RESPOND TO YOUR LETTER, WE RECEIVED REPORTS FROM THE AGENCY ON MAY 30 AND JULY 14, 1986, RESPONSIVE TO SEE'S ALLEGATIONS NOT RELATED TO THE ALLEGED SOLICITATION IMPROPRIETIES.

SPECIFICALLY, SEE ARGUES THAT OFFERORS WERE URGED TO USE CREATIVITY IN PREPARING PROPOSALS, BUT ALL CREATIVE SUGGESTIONS WERE REJECTED AS NONRESPONSIVE AND AS ATTEMPTS TO "RE-DESIGN" THE PROJECT. SEE ALSO ASSERTS THAT AWARD WAS MADE TO A FIRM AT A HIGHER COST THAN SEE PROPOSED, ALTHOUGH SEE WAS INFORMED PRIOR TO SUBMISSION OF SECOND BEST AND FINAL OFFERS, THAT ALL BEST AND FINAL OFFERS, INCLUDING SEE'S, WERE TECHNICALLY ACCEPTABLE AND THAT A FINAL AWARD DECISION WOULD BE BASED ON COST. SEE ALSO ALLEGES THAT THE AGENCY IMPROPERLY ALLOWED EDELMAN & ASSOCIATES, WHICH SEE ALLEGES HAS LIMITED EXPERIENCE IN VISITOR CENTER EXHIBITRY AND WHICH WAS A SUBCONTRACTOR TO THE PRIME CONTRACTOR WHO WAS RESPONSIBLE FOR DEVELOPING THE SPECIFICATIONS, TO BE INVOLVED IN THE DESIGN OF THE EXHIBITS CENTER AND THE EVALUATION OF PROPOSALS.

THE RECORD INDICATES THAT SEVEN OFFERORS RESPONDED TO THE SOLICITATION AND THE AGENCY DETERMINED THAT FOUR PROPOSALS, INCLUDING THOSE SUBMITTED BY PROMOTION PRODUCTS, INC. (PPI) (THE AWARDEE), AND SEE WERE WITHIN THE COMPETITIVE RANGE. OF THESE, PPI RECEIVED THE HIGHEST ADJECTIVE RATING OF EXCELLENCE AND SEE AN ADJECTIVE RATING OF GOOD. PPI WAS RANKED FIRST AND SEE THIRD. DISCUSSIONS WERE HELD WITH EACH OFFEROR IN THE COMPETITIVE RANGE AND EACH WAS GIVEN A LIST OF CONCERNS, QUESTIONS AND WEAKNESSES COMPILED FROM THE TECHNICAL REVIEW TEAM'S EVALUATION OF THAT OFFEROR'S PROPOSAL. FOLLOWING DISCUSSIONS WITH EACH OFFEROR AND SUBMISSION OF BEST AND FINAL OFFERS ON DECEMBER 13, 1985, THE RELATIVE STANDING AND ADJECTIVE RATINGS FOR PPI WERE UNCHANGED, AND SEE'S REVISED PROPOSAL RECEIVED THE SAME ADJECTIVE RATING AS BEFORE AND WAS RANKED SECOND. EVALUATION OF THE SECOND BEST AND FINAL OFFERS YIELDED THE SAME RESULTS WITH THE EVALUATION TEAM RECOMMENDING AWARD TO PPI. THE AGENCY ADVISED SEE ON FEBRUARY 14, 1986, THAT THE CONTRACT WAS AWARDED TO PPI, WHOSE TECHNICAL PROPOSAL RECEIVED A HIGHER TECHNICAL EVALUATION.

THE RECORD DOES NOT SUPPORT SEE'S CONTENTION THAT USDA REJECTED ITS CREATIVE SUGGESTIONS AS NONRESPONSIVE WHEN DECIDING TO AWARD THE CONTRACT TO PPI. THE RECORD INDICATES THAT USDA RECEIVED AND EVALUATED ALL CREATIVE SUGGESTIONS FOR ALL OFFERORS. THE RECORD FURTHER INDICATES THAT USDA EVALUATORS FOUND THAT SEE'S INITIAL OFFER EMPHASIZED REDESIGN OF A PROJECT FOR WHICH DETAILED DESIGN WORK HAD ALREADY BEEN ACCOMPLISHED BEFORE ISSUING THE SOLICITATION. THE USDA SOUGHT OFFERS TO CONSTRUCT, THAT IS, FURNISH AND INSTALL EXHIBITS, NOT TO DESIGN OR REDESIGN EXHIBITS. THE RECORD SHOWS THAT USDA ADVISED SEE OF THIS PROBLEM AND OTHER WEAKNESSES IN ITS PROPOSAL DURING DISCUSSIONS, AND SEE IMPROVED ITS PROPOSAL CONSIDERABLY IN ITS BEST AND FINAL OFFER AND WAS SECOND RANKED TECHNICALLY BY THE USDA EVALUATORS AFTER EVALUATION OF BEST AND FINAL OFFERS. IN THIS REGARD, WE CANNOT CONCLUDE THAT THE EVALUATION WAS UNREASONABLE OR INCONSISTENT WITH THE STATED EVALUATION CRITERIA.

SEE ALSO ARGUES THAT SINCE ITS PROPOSED COST WAS LOWER THAN THE HIGHEST RANKED OFFER, IT SHOULD HAVE RECEIVED THE AWARD BECAUSE IT WAS ADVISED THAT COST WOULD BE THE DETERMINING FACTOR FOR AWARD. USDA RESPONDS, HOWEVER, THAT THE AWARD WAS CONSISTENT WITH THE STATED AWARD CRITERIA, WHICH ALLOWED THE GOVERNMENT TO ACCEPT OTHER THAN THE LOWEST OFFER, PROVIDED THE OFFER CONFORMED TO THE SOLICITATION REQUIREMENTS AND WAS MOST ADVANTAGEOUS TO THE GOVERNMENT.

INITIALLY, WE NOTE THAT THE RFP ADVISED OFFERORS THAT THE GOVERNMENT WOULD AWARD A CONTRACT TO THE RESPONSIBLE OFFEROR WHOSE PROPOSAL WAS CONSIDERED TECHNICALLY ACCEPTABLE AND WHICH WOULD BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. THE RFP ALSO ADVISED THAT HIGH VALUE WOULD BE PLACED ON TECHNICAL PROPOSALS AND QUALIFICATIONS OF THE OFFERORS.

THUS, THE RFP ADVISED OFFERORS THAT TECHNICAL PROPOSALS AND OFFERORS' QUALIFICATIONS, RATHER THAN COST, WOULD BE EMPHASIZED IN AWARD OF THIS CONTRACT. WE NOTE THAT THE CONTRACTING OFFICER ADVISES THAT THE EVALUATION WAS CONDUCTED IN ACCORDANCE WITH THE RFP AWARD CRITERIA AND THAT, WHILE, IN USDA'S REQUEST FOR REVISED BEST AND FINAL OFFERS, FIRMS WERE ADVISED THAT FUNDS WERE NOT UNLIMITED, THE CONTRACTING OFFICER DENIES THAT HE ORALLY ALTERED THE AWARD CRITERIA TO INDICATE COST WOULD BE THE SOLE CRITERIA FOR AWARD. WE NOTE THE WRITTEN REQUESTS FOR REVISED BEST AND FINAL OFFERS DID NOT INDICATE ANY CHANGE FROM THE RFP AWARD CRITERIA.

FURTHER, WE NOTE THAT THE RFP INCORPORATED BY REFERENCE THE ADVICE TO OFFERORS THAT ORAL EXPLANATIONS GIVEN BEFORE THE AWARD OF THE CONTRACT WOULD NOT BE BINDING ON THE AGENCY. WHEN A SOLICITATION EXPRESSLY CAUTIONS OFFERORS AGAINST RELYING UPON ORAL ADVICE FROM AGENCY PERSONNEL, OFFERORS WHO RELY UPON ALLEGED ERRONEOUS ADVICE WHICH CONFLICTS WITH SPECIFIC LANGUAGE IN THE SOLICITATION DO SO AT THEIR OWN RISK. EVEN IF THE PROTESTER WAS MISLED TO ITS DETRIMENT, SUCH ALLEGED ERRONEOUS ADVICE NEITHER BIDS THE AGENCY NOR REQUIRES THE SUBMISSION OF NEW OFFERS. ACKCO, INC., B-220849, FEB. 28, 1986, 86-1 CPD PARA. 209.

WITH REGARD TO SEE'S QUESTIONING THE FACT THAT AWARD WAS MADE TO A HIGHER PRICED OFFEROR, WE HAVE CONSISTENTLY HELD THAT IN NEGOTIATED PROCUREMENTS, THERE IS NO REQUIREMENT THAT AWARD BE MADE ON THE BASIS OF THE LOWEST COST. THE PROCURING AGENCY HAS THE DISCRETION TO SELECT A HIGHER RATED TECHNICAL PROPOSAL INSTEAD OF A LOWER RATED, LOW COST PROPOSAL IF DOING SO IS CONSISTENT WITH THE EVALUATION SCHEME IN THE SOLICITATION. LITTON SYSTEM, INC., ELECTRON TUBE DIVISION, 63 COMP.GEN. 585 (1984), 84-2 CPD PARA. 317.

IN THIS CASE, THE AGENCY DETERMINED THAT THERE WAS A SIGNIFICANT DIFFERENCE IN TECHNICAL MERIT AMONG THE OFFERORS AND IN ITS CONSIDERED JUDGMENT AWARD TO PPI WAS IN THE BEST INTERESTS OF THE GOVERNMENT. THE RECORD SHOWS THAT THE USDA RATED THE AWARDEE'S EXPERIENCE AND QUALIFICATIONS HIGHER THAN SEE'S AND CONCLUDED THAT THE AWARDEE'S WORK WOULD BE SIGNIFICANTLY BETTER IN QUALITY, REQUIRES LESS MAINTENANCE, WOULD BE MORE DURABLE AND PROVIDE THE GREATEST VALUE TO THE GOVERNMENT. THE USDA SPECIFICALLY DETERMINED THE AWARDEE'S OFFER WAS WORTH THE EXTRA COST TO USDA. OUR OFFICE WILL QUESTION THAT JUDGMENT ONLY UPON A CLEAR SHOWING OF UNREASONABLENESS. SEE HAS NOT SHOWN THE EVALUATION WAS UNREASONABLE.

FINALLY, WITH REGARD TO SEE'S ALLEGATION THAT EDELMAN & ASSOCIATES MAY HAVE PLAYED AN IMPROPER ROLE IN EVALUATION OF THE TECHNICAL PROPOSALS, USDA REPORTS THAT A FORMER EMPLOYEE OF EDELMAN & ASSOCIATES WAS HIRED AS A TECHNICAL CONSULTANT TO THE CONTRACTING OFFICER, BUT ONLY FOREST SERVICE EMPLOYEES CONDUCTED THE EVALUATION OF PROPOSALS SUBMITTED IN RESPONSE TO THE SOLICITATION. BASED ON THIS RECORD, WE HAVE NO BASIS TO CONCLUDE EDELMAN & ASSOCIATES HAD ANY UNFAIR OR PREJUDICIAL IMPACT ON THE AWARD DECISION.

BASED UPON THE RECORD BEFORE US, IT APPEARS THAT USDA HAD A RATIONAL BASIS FOR SELECTING PPI, AND THE AWARD CONFORMED TO THE STATED EVALUATION AND AWARD CRITERIA.