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PROCUREMENT - Competitive Negotiation - Offers - Evaluation errors - Evaluation criteria - Application DIGEST Protest that agency evaluated proposals on the basis of factors not explicitly stated in solicitation is denied where the factors used reasonably were related to the stated evaluation criteria. Nova contends that the evaluation of proposals was not conducted in accordance with the solicitation's stated evaluation criteria. The protests are denied. The solicitation stated that award would be made to the offeror whose proposal was most advantageous to the government. Technical proposals were to be evaluated based on four criteria: 1. Have a thorough understanding of cathode ray tube (CRT) computer terminals. b.

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B-242316, B-242316.2, Mar 20, 1991, 91-1 CPD 307

PROCUREMENT - Competitive Negotiation - Offers - Evaluation errors - Evaluation criteria - Application



Nova Technology Services, Inc.:

Nova Technology Services, Inc. has filed two protests against the award of a contract to Megadata Corporation under request for proposals (RFP) No. 263-89-P(89)-0008 issued by the National Institutes of Health (NIH), Department of Health and Human Services, for maintenance services for 1,263 computer terminals. Nova contends that the evaluation of proposals was not conducted in accordance with the solicitation's stated evaluation criteria.

The protests are denied.

The RFP sought offers for a fixed-price, indefinite quantity contract for a 1-year term with 2 option years. The solicitation stated that award would be made to the offeror whose proposal was most advantageous to the government, price and other factors considered. It also advised offerors that paramount consideration would be given to technical factors rather than price. Technical proposals were to be evaluated based on four criteria:

1. Evidence of skilled service technicians who:

(35 points)

a. Have a thorough understanding of cathode ray tube (CRT) computer terminals.

b. Have a thorough understanding of electronics and the components and circuits in the equipment.

c. Submit names of individuals actually to be assigned to service the terminals together with a resume of their experience and educational background.

2.Evidence of organization's qualifications, experience and achievements.(25 points)

3. Evidence of sufficient stock of spare parts and ability to quickly obtain spare parts. (20 points)

4. Evidence of ability to respond to emergency situations. (20 points)

Four offerors submitted proposals by the closing date. After initial evaluation by a technical review committee, only the proposal of Megadata, the incumbent contractor, was deemed technically acceptable. Megadata received an initial technical evaluation score of 100 while Nova received the third highest score of 65.50.

One of the offerors found technically unacceptable filed a protest with the agency and a second offeror filed a protest with the General Services Administration Board of Contract Appeals. After further review, the agency decided to include all four offerors within the competitive range. /1/ As a result, both offerors withdrew their protests.

After written discussions with all offerors, the agency requested best and final offers (BAFO). Nova submitted the low-priced BAFO of $469,728, while Megadata submitted the second lowest priced BAFO of $794,189.37. The technical review committee determined that the BAFOs did not affect the scoring of the proposals. /2/ Megadata's technically superior rated- offer was selected for award. Nova's proposal was much lower rated, as documented by the technical evaluation (and discussed below), and the agency found there was considerable doubt whether Nova could successfully perform the contract. Since Megadata's price for its technically superior proposal was considered reasonable, its proposal was found most advantageous to the government. Award was made to Megadata on October 1.

Nova contends that the evaluation of its proposal was not conducted in accordance with the four stated evaluation criteria. A solicitation must inform all offerors of the basis for evaluation of proposals and the evaluation must in fact be based on the scheme set forth in the solicitation. Jeffrey A. Cantor, B-234250, May 30, 1989, 89-1 CPD Para. 517. While agencies must inform offerors of all major evaluation factors, they need not expressly identify the various aspects of each that might be taken into account, provided that such aspects are reasonably related to or encompassed by the stated criteria. Id.

First, Nova objects to receiving a score of 25.5 out of 35 in the area of skilled service technicians. The protester argues that the agency substituted "experience in providing on-site maintenance" for the actual evaluation factor and subfactors stated in the RFP that stressed technical understanding of computer operations. Nova also questions the agency's related decision to score resumes, which did not demonstrate on-site service experience, lower than those that showed such experience, since the RFP did not state that on-site experience was required. Nova contends that such a scoring system unfairly favors Megadata, the incumbent contractor.

The solicitation, under subfactor c of the skilled service technicians factor, requested resumes detailing the experience and educational background of the personnel proposed. Although the solicitation did not explicitly state that on-site maintenance experience was desirable, we think that since this procurement is for such maintenance, it is reasonable for the agency to rate an offeror who proposed personnel with experience in providing on-site maintenance higher than an offeror who proposed personnel without this experience. The record shows Nova was downgraded in this area because the on-site technicians it proposed had limited experience, only 1 year above a junior field engineer level. Moreover, we see no evidence that these personnel with limited experience have superior understanding of the CRT terminals as Nova apparently contends. In contrast, Megadata proposed more experienced personnel with greater demonstrated understanding. Whether or not Megadata may have an advantage in this area because it is the incumbent, an agency is not required to equalize competition with respect to this advantage so long as this advantage does not result from unfair action by the government. PECO Enters., Inc., B-232307, Oct. 27, 1988, 88-2 CPD Para. 398. There is no evidence in the record that the agency acted unfairly here or misevaluated this evaluation criterion.

With respect to the second evaluation factor, evidence of the organization's qualifications, experience and achievements, where Nova received 14.75 out of a possible 25 points, the protester argues that the agency incorrectly evaluated the "quality" of Nova's experience. Nova contends that the agency should instead have simply evaluated whether Nova had successfully performed repair and maintenance contracts in the past.

The record shows that Nova was downgraded in this area primarily because of the lack of detail in both its proposal and BAFO as requested by the RFP and during discussions, and because one of the contracts Nova listed as evidence of its experience was a prior NIH contract where the agency had found performance to be unreliable with spare part shortages and problems with the availability of technicians. The protester in this instance appears to view the evaluation criterion as a minimum requirement, which if met, should entitle the offeror to the maximum points possible. This interpretation is unreasonable; the evaluation of technical proposals is generally utilized to allow the agency to evaluate the relative quality of the services or products being offered. Therefore, the quality of Nova's prior performance and related problems, as well as a lack of requested details regarding this experience, were properly considered by the agency in evaluating this criterion.

Under the third evaluation criterion, evidence of sufficient spare parts, where Nova received 12 of 20 points, the record shows that the agency was concerned with Nova's apparent plan to purchase whole computer terminals and disassemble them for parts and because Nova appeared completely dependent on Megadata for spare parts. The agency considered Nova's approach to be inefficient and risky. Nova complains that the agency failed to consider the firm's proposed purchase of spare parts, which was noted in several paragraphs in its proposal. Our review of the paragraphs referenced by Nova shows that although they all indicate that spare parts will be provided, nothing is specifically stated about how these parts will be acquired, except through purchase of entire units from Megadata, apparently with a plan to cannibalize them as necessary.

Under the fourth evaluation factor, evidence of ability to respond to emergency situations, where Nova received 13.25 of 20 points, the record shows that the agency downgraded Nova's proposal because the firm stated that users should report emergency problems to an office in Hanover, Maryland, which would then relay the information to the appropriate technician. The agency determined that this arrangement may delay response time compared to the current system, provided by Megadata, where calls are made directly to the technician's on-site office. Nova argues that the Hanover call center was simply an additional method for the agency to obtain service.

While it is true that Nova proposes on-site personnel, Nova's BAFO also specifically states "all trouble calls are received through our central dispatch in Hanover." More importantly, significant maintenance was proposed to be done at off-site facilities. In contrast, Megadata had the general capability to perform emergency maintenance on site. Thus, we think the agency reasonably found Nova's proposal offered a less than desirable response to emergency problems. Moreover, the agency reasonably believed that Nova may have problems in timely acquiring spare parts, which detracts from its emergency response capabilities. Therefore, the agency reasonably evaluated this criterion.

Based on the foregoing, Nova has not provided any basis to challenge the source selection.

Lastly, Nova asserts, in its comments on the agency report, that it was not timely informed of the award of the contract to Megadata until 57 days after the award. Since the protester was aware of this basis of protest on approximately November 27, its protest of this issue, filed with our Office on February 4, more than 10 days after the basis was known, is untimely. 4 C.F.R. Sec. 21.2(a)(2) (1990). In any event, although we agree with the protester that the delay was excessive, such a failure on the agency's part does not affect the validity of a contract which, as here, was otherwise properly awarded. DH Indus., B-232963, Jan. 25, 1989, 89-1 CPD Para. 80.

The protests are denied.

/1/ The technical evaluation committee did not change any offeror's initial evaluation scores but revised its determination of what constituted a technically acceptable rating and included all in the competitive range.

/2/ An agency's failure to rescore revised proposals generally is not a matter for objection by this Office, provided the record otherwise shows the proposals were reasonably reevaluated. Information Mgmt., Inc., B-212358, Jan. 17, 1984, 84-1 CPD Para. 76; CRC Sys., Inc., B-207847, May 2, 1983, 83-1 CPD Para. 462.

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