BNUMBER:  B-262236.2; B-262237.2
DATE:  January 18, 1996
TITLE:  Intown Properties, Inc.

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Matter of:Intown Properties, Inc.

File:     B-262236.2; B-262237.2

Date:     January 18, 1996

Melton Harrell for the protester.
Arnette L. Georges, Esq., Department of Housing and Urban Development, 
for the agency.
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency unreasonably evaluated protester's best and final offer (BAFO) 
submitted in response to solicitations for real estate acquisition 
management services where the protester, in response to discussions 
informing the protester that certain of its personnel were not 
considered qualified, proposed different personnel in its BAFO, but 
the agency did not consider this when determining the protester's 
low-priced BAFO to be unacceptable.

DECISION

Intown Properties, Inc. protests the award of two contracts to Asset 
Management Specialist, Inc., (AMS) under request for proposals (RFP) 
Nos. H02R95064000000 (RFP-40) and H02R95064100000 (RFP-41), issued by 
the Department of Housing and Urban Development (HUD) for real estate 
acquisition management (REAM) services.  Intown, the incumbent 
contractor under RFP-40, argues that the agency's evaluation of its 
proposal and the selection of AMS for the awards were unreasonable.

We sustain the protests.

The RFPs provided for the awards of firm, fixed-price, indefinite 
quantity contracts for the performance of REAM services in the city of 
Camden (RFP-40), and Camden (excluding the city of Camden), 
Burlington, Mercer, and Gloucester counties, New Jersey (RFP-41).[1]  
The contractor(s) under the RFPs will be responsible for preserving 
and protecting single family properties owned or in the custody of HUD 
and located in these areas until the units are sold to the public or 
accepted by nonprofit organizations. 

The RFPs provided that awards would be made to the responsible offeror 
or offerors whose offer or offers, conforming to the solicitations, 
were determined most advantageous to the government, cost and other 
factors considered.  The RFPs stated that technical merit would be 
more significant than price in the award selection, and listed the 
following technical evaluation factors to be evaluated on a 100-point 
scale:

     "1.  Demonstrated experience in the management of single family 
     properties similar to and in the general area as those covered by 
     this solicitation. [25 points]

     "2.  Subfactor A- Demonstrated ability to inspect properties as 
     evidenced by the completion of the HUD-9516[2], and supporting 
     documentation, for one of the following properties:  Case # 
     352-216537 - 316 N. 5th St., Millville, NJ  08332 [or] Case # 
     351-190246 - 1202 N. 26th St., Camden, NJ 08105. [15 points]

     "Subfactor B- Demonstrated experience in developing listings of 
     needed repairs, such as is required by HUD's MPS [minimum 
     property standards] and estimating the cost of repairs. [10 
     points]

     "3.  Demonstrated experience in soliciting repair bids, 
     coordinating and overseeing repair work and inspecting for 
     satisfactory completion.  [15 points]

     "4.  Demonstrated experience in managing a rental program, 
     including establishing fair market rentals and collections from 
     present and former tenants, for single family properties.  [10 
     points]

     "5.  Understanding HUD objectives and required tasks as specified 
     in the solicitation.  [10 points]

     "6.  Evidence of adequately staffed, trained, and equipped office 
     (or the ability to establish such) reasonably located as to 
     provide convenient service to HUD and its clients in the area to 
     be served, and to carry out all duties specified in the 
     solicitation.  [15 points]"

The agency received seven proposals responding to both RFPs, including 
Intown's and AMS', and one proposal which responded to RFP-40 only.  
The proposals were evaluated by a technical evaluation panel (TEP).  
The TEP found in evaluating Intown's proposal that Intown had failed 
to "clearly state the location of [its] office."  The TEP also found 
that two of Intown's key employees had left that company to form AMS, 
and that Intown had not adequately replaced these individuals with 
qualified staff.  Although the agency rated Intown's proposal as 
"good" under this evaluation factor, and awarded it 7 out of 15 
possible points, the agency concluded that Intown needed to address 
the deficiencies in its proposal concerning the location of its 
offices and qualifications of its personnel before its proposal could 
be considered technically acceptable.  Overall, Intown's proposal 
received adjectival ratings of "good" or "excellent" under each of the 
evaluation factors and a total point score of 73.

Four proposals, including those of AMS and Intown, were included in 
the competitive range.  Discussions were held, during which, among 
other things,  Intown was informed of the agency's concerns with 
Intown's personnel and failure to specify office locations.  

Best and final offers (BAFOs) were received and evaluated.  Intown's 
BAFO received a score of 74 points at evaluated unit prices of $798.90 
for RFP-40 and $630.24 for RFP-41, whereas AMS' BAFO received the 
highest technical score of 88 points at an evaluated unit price of 
$914.12 for both RFPs.   

In its BAFO, Intown provided an address at which it would locate an 
office if awarded either or both of the contracts under the RFPs.  
Intown's BAFO also acknowledged the performance problems of its 
current staff (that is, the staff that replaced the key individuals 
who had left Intown), and provided the name and detailed resume of an 
individual who would manage the office. 

The agency, in its evaluation of Intown's BAFO, raised Intown's score 
"by 1 point since the BAFO addressed the TEP's concerns about office 
location."  There is nothing in the record, however, which evidences 
that the agency considered the individual proposed by Intown in its 
BAFO to manage the contract or contracts if awarded.  Although, as 
indicated, the adjectival ratings of Intown's proposal ranged from 
"good" to "excellent" for each evaluation factor, the agency 
concluded, for reasons which are unclear, that Intown's proposal 
remained technically unacceptable.  Because Intown's low-priced 
proposal was found technically unacceptable, it was not considered by 
the agency in its best value determination.

The agency considered the proposals of AMS and another offeror, whose 
less expensive proposal received a lower technical rating, in its best 
value determination, and determined that the AMS proposal's technical 
advantages offset the other proposal's price advantage.  AMS was 
awarded the contracts on July 21.  

On August 1, Intown received a letter from the agency informing it of 
the awards to AMS, and the prices at which the awards were made.  On 
August 4, Intown requested a debriefing from the agency, and after 
receiving no response, filed its protests with our Office on August 
31.  Intown's initial protests to our Office challenged, in general 
terms, the agency's evaluation of its proposal and the awards to AMS 
in light of AMS' significantly higher price.  Based upon information 
provided by the agency in its report, Intown specifically argues that 
the evaluation of its BAFO was unreasonable because the agency failed 
to consider the personnel proposed by Intown in its BAFO.  Intown 
points out that, as demonstrated by their resumes, each of the 
individuals proposed in its BAFO has extensive experience in providing 
REAM services.

As an initial matter, the agency argues that Intown's protests are 
untimely because they were not filed within 10 days of Intown's 
receipt of the agency's letter informing Intown that the awards had 
been made to AMS.  The agency points out that although Intown 
requested a debriefing by letter dated August 4, the debriefing was 
not held until after Intown filed its protests, and Intown did not 
learn anything new between August 1, the date on which it was informed 
that the awards had been made to AMS, and August 31, the date on which 
Intown filed its protests.[3]  

Intown concedes that it did not learn any new information between 
August 1, when it became aware that the contracts had been awarded to 
AMS, and August 31, when it filed its protests.  Intown explains that 
it filed its protests "in general terms" because the agency had not 
acted upon Intown's debriefing request through the time of the 
protests' filing, and because of this, Intown was unaware of its exact 
grounds for protest.

We do not consider the protest untimely.  At the time Intown was 
apprised of the award it was uncertain as to whether it had a basis to 
protest because the agency had not yet advised it of why its proposal 
was not accepted.  Intown therefore promptly requested a debriefing 
within 3 days of its receipt of the award letter.  Protesters may 
generally delay filing a protest in such circumstances until after a 
receipt of information in response to a diligently pursued debriefing.  
PRC, Inc., B-247036, Apr. 27, 1992, 92-1 CPD  para.  396; S-Cubed, a Div. of 
Maxwell Labs., Inc., B-242871, June 17, 1991, 91-1 CPD  para.  571.  A 
disappointed offeror may not, however, await indefinitely for a 
response.[4]  Where an agency does not respond to a debriefing or 
information request within a reasonable period of time, a protester 
must reiterate its request or file on the basis of whatever 
information it has.  See John W. Gracey, B-232156.2, Jan. 23, 1989, 
89-1 CPD  para.  50; Marine Hydraulics Int'l, Inc., B-219683, Nov. 26, 1985, 
85-2 CPD  para.  602.  Here, Intown protested within four weeks of its 
debriefing request, and such a 4-week wait for a promptly requested 
debriefing is not in our view unreasonable.  See Lawrence H. Suid, 
B-255546, Mar. 9, 1994, 94-1 CPD  para.  187.  Under the circumstances, we 
consider Intown's protest to be timely filed.
    
With regard to the merits of Intown's protests, while the evaluation 
of technical proposals is a matter within the discretion of the 
contracting agency because the agency is responsible for defining its 
needs and the best method of accommodating them, Marine Animal Prods. 
Int'l, Inc., B-247150.2, July 13, 1992, 92-2 CPD  para.  16, the record here 
does not support the reasonableness of the agency's evaluation of 
Intown's BAFO.  Specifically, there is no recognition in the TEP's 
evaluation, or anywhere else in the record, of the individual proposed 
by Intown in its BAFO to manage the Intown office that would be 
responsible for either or both of the contracts.  Indeed, the 
contracting officer, in her report on the protests, expressly states 
that Intown "did not identify any permanent Intown employees" in 
response to the agency's expressed concerns, raised during 
discussions, about Intown's personnel.  Since this is clearly belied 
by a review of Intown's BAFO, we conclude that this portion of the 
evaluation was unreasonable.  Jaycor, B-240029.2 et al., Oct. 31, 
1990, 90-2 CPD  para.  354.  

Further, the record does not support the agency's conclusion that 
Intown's BAFO was technically unacceptable.  As mentioned previously, 
there is no clear explanation in the record as to why the agency 
reached this conclusion while rating Intown's proposal as "good" or 
"excellent" under each of the six evaluation factors.  Additionally, 
the record suggests that the agency's determination that Intown's BAFO 
was technically unacceptable was premised on the agency's failure to 
consider the individual proposed in Intown's BAFO to manage the office 
responsible for the contract or contracts.  

Because the agency's evaluation of Intown's BAFO was unreasonable, and 
its conclusion that Intown's BAFO was technically unacceptable is 
unsupported, the agency's consequent exclusion of Intown's 
significantly lower-priced proposal from its best value determination, 
and selection of AMS for the awards, were unreasonable.  NITCO, 
B-246185, Feb. 21, 1992, 92-1 CPD  para.  212.  

We recommend that the agency reevaluate the BAFOs.  If after the 
reevaluation the agency concludes that Intown's BAFO is technically 
acceptable, the agency should consider Intown's BAFO in a new best 
value determination.  If the agency finds that Intown should have 
received award under either or both of the solicitations, the 
appropriate contract or contracts should be terminated, and the award 
or awards made to Intown.  We also find that Intown is entitled to the 
reasonable costs of filing and pursuing its protests.  4 C.F.R.  sec.  
21.6(d)(1).  The protester should submit its certified claim for costs 
directly to the agency within 60 working days of its receipt of this 
decision.  4 C.F.R.  sec.  21.6(f)(1).

The protests are sustained.

Comptroller General 
of the United States 

1. The RFPs are identical except for the different geographic 
locations.

2. HUD 9516 is a standard form, the completion of which requires the 
entry of specified information concerning the condition of the 
property.

3. Intown's protests are dated August 28, but were not received by our 
Office, and therefore filed, until August 31.

4. While in the cited cases the protesters obtained information on 
which their protests were based through their respective debriefings 
or FOIA requests, it would be anomalous to consider Intown's untimely, 
merely because in Intown's case the agency chose not to act upon 
Intown's debriefing request; as Intown points out, such a decision by 
our Office would permit an agency to avoid a protest "through the 
simple use of ignoring a request for a debriefing until the time for 
protest expired."