BNUMBER: B-265698.2
DATE: February 7, 1996
TITLE: DuVALL Services Company
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REDACTED DECISION
A protected decision was issued on the date below and was subject to a
GAO Protective Order. This version has been redacted or approved by
the parties involved for public release..
Matter of:DuVALL Services Company
File: B-265698.2
Date:February 7, 1996
Richard L. Moorhouse, Esq., and Craig A. Holman, Esq., Holland &
Knight, for the protester.
Mike Colvin, Department of Health & Human Services, for the agency.
Andrew T. Pogany, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Contracting agency's determination to exclude protester's low-rated
proposal from a revised competitive range was reasonable where
protester, which proposed a higher price than the proposed awardee at
the time of its exclusion, only offered staffing amounting to
approximately [deleted] of the staffing offered by the proposed
awardee even after contracting agency sent the protester a discussion
item questioning the adequacy of its staffing.
DECISION
DuVALL Services Company (DSC) protests the exclusion of its proposal
from the competitive range under request for proposals (RFP) No.
263-95-P(BB)-0109, issued by the National Institutes of Health, for
maintenance and repair services for government-owned Dupont/Sorvall
scientific instruments.
We deny the protest.
The requirement was for on-site full service maintenance, including
preventive maintenance, inspection, and emergency repair of the
scientific instruments located at Bethesda, Maryland, and Research
Triangle Park, North Carolina.[1] The RFP was issued on February 24,
1995, and contemplated the award of a fixed-price requirements
contract for one year with four 1-year options at the Bethesda site.
The RFP required emergency repairs to be completed within 48 hours.
Technical proposals were required to be evaluated based on the
following criteria: (1) qualification of service personnel (30 of 100
possible points);[2] (2) the organization's qualifications (25
points); emergency response (25 points); and availability of spare
parts (20 points). The RFP stated that evaluation of technical
proposals would be of "paramount consideration" in the award decision
and that price would become significant only in the event that two or
more offerors were rated approximately equal technically.
Four proposals, including the proposals of DSC and E.I. Dupont de
Nemours Co., Inc., were received by the May 2, 1995, closing date. On
May 25, initial proposals were evaluated by the agency's technical
evaluation panel (TEP), which submitted a report on May 30 setting
forth the strengths and weaknesses of each proposal. The TEP rated
Dupont acceptable; DSC and another firm were rated marginally
acceptable, and the remaining offeror was rated unacceptable. On June
9, the agency established a competitive range of three offers
consisting of the acceptable and marginally acceptable offers. The
protester's proposal was higher priced than Dupont's proposal
[deleted].[3] In making her competitive range determination, the
contracting officer stated as follows concerning DSC's initial
technical proposal:
"[Deleted] technicians resumes were provided with [deleted]
specific evidence of training with Dupont/Sorvall equipment.
[This offeror] appears to have missed or ignored the size and
scope of the instruments to be maintained. [The firm] propose[s]
to have [deleted] available . . . [and appears] to be contesting
the intent and content of the RFP. . . . There is no tangible
plan or evidence cited that a 48 hour repair time will be
met if multiple failures occur in parallel with [deleted]
technicians available."[4]
As a result, the contracting officer sent the protester the following
discussion question:
"Do you believe that [deleted] is enough to perform the
requirements as stated in the RFP?"
The agency received revised technical responses from the offerors to
the discussion questions on June 16. Revised prices were not
solicited or received.
In its revised technical proposal, the protester stated
"[y]es, we do believe that [deleted] is enough to perform the
requirements. . . . By this we mean that [deleted] would be
assigned . . . to handle emergency service calls and preventive
maintenance visits and [deleted] will be assigned to assist with
emergency service and preventive maintenance as required."
The protester further stated that [deleted] would be required only to
support both sites solicited by the RFP but that it was "bidding" on
only the Bethesda location. The protester then proceeded to explain
that the average number of emergency repair requests previously at the
Bethesda location was three per day; that the average repair time was
1.5 hours per call; and that the average preventive maintenance visit
took 1 hour to complete. The protester concluded
"From this [data] we can deduce that it will take 22.5 man hours
per week for emergency service. This leaves 17.5 man hours per
week for preventive maintenance. Based on a 48 week work year
one man could also perform 840 preventive maintenance visits per
year."[5]
The TEP reconvened on July 12 to evaluate the revised technical
submissions. Dupont received a technical score of [deleted]; the
protester received a score of [deleted]. On July 26, the contracting
officer made a revised competitive range determination in which she
excluded the protester's proposal from the competition. This revised
competitive range determination resulted in only Dupont remaining in
the competition for the Bethesda location.
The contracting officer eliminated the protester's proposal from the
revised competitive range because she did not believe that [deleted]
constituted adequate staffing, and because she believed that the
protester's explanation and analysis of the requirements were "flawed
as [the protester's submission] considers only average values over
periods of time rather than the possibility for multiple failure
events in succession requiring a greater level of service efforts over
an acute period of time." She also again found that the protester had
not submitted any "tangible plan or evidence" that it could meet the
48-hour repair time requirement. This protest followed.
In a negotiated procurement, the purpose of a competitive range
determination is to select those offerors with which the contracting
agency will hold written or oral discussions. Everpure, Inc.,
B-226395.2; B-226395.3, Sept. 20, 1988, 88-2 CPD para. 264. The
competitive range is to be determined on the basis of cost or price
and other factors that were stated in the solicitation and should
include only proposals that have a reasonable chance of being selected
for award. Id. Even a proposal that is technically acceptable as
submitted need not be included in the competitive range when, relative
to other acceptable offers, it is determined to have no reasonable
chance of being selected for award. Wordpro, Inc., B-242100.2, Apr.
24, 1991, 91-1 CPD para. 404; see Hummer Assocs., B-236702, Jan. 4, 1990,
90-1 CPD para. 12. This "relative" approach to determining the
competitive range, that is, comparing one offeror's proposal to those
of other offerors, may be used even where it results in a competitive
range of one. Everpure, Inc., supra; Systems Integrated, B-225055,
Feb. 4, 1987, 87-1 CPD para. 114.
The evaluation of proposals and the determination of whether a
proposal is in the competitive range are principally matters within
the contracting agency's discretion, since agencies are responsible
for defining their needs and for deciding the best method of meeting
them. Advanced Sys. Technology, Inc.; Engineering and Professional
Servs., Inc., B-241530; B-241530.2, Feb. 12, 1991, 91-1 CPD para. 153.
Hence, it is not the function of our Office to evaluate proposals de
novo, and while we closely scrutinize an agency decision which
results, as in this case, in a competitive range of one, we will not
disturb that determination absent a clear showing that it was
unreasonable or in violation of procurement laws or regulations.
Institute for Int'l Research, B-232103.2, Mar. 15, 1989, 89-1 CPD para.
273. If the agency's evaluation of proposals is reasonable, and not
violative of law or regulation, there is nothing improper in the
agency's making more than one competitive range determination and
dropping a firm from further consideration. Labat-Anderson Inc.,
B-246071.4, Oct. 9, 1992, 92-2 CPD para. 244.
We think the agency here properly excluded the protester's revised
proposal from the competitive range because it did not have a
reasonable chance for award. First, upon being questioned by the
agency about the adequacy of its staffing, DSC merely offered an
analysis of certain historical data to demonstrate the need for
[deleted] that consisted entirely of "average" usage and experience
over long periods of time rather than the possibility of multiple
failures in succession requiring acute levels of service.[6] We find
reasonable the agency's determination that this analysis of work load
by the protester, based solely on "averages" over a long period of
time, was meaningless for ascertaining a firm's capabilities for
responding to surge requirements. Second, even if we find that the
protester's proposal was not unacceptable on its face, the protester's
continued insistence in its revised proposal to provide the agency
with only one primary service technician with [deleted] (at a higher
price than Dupont's) represented, as the agency reasonably found, a
level of effort greatly inferior to Dupont's approach. In our view,
the agency therefore reasonably concluded that the protester's
inferior technical approach, along with its higher price, resulted in
the firm not having a reasonable chance for award.
The protest is denied.
Comptroller General
of the United States
1. Under the terms of the RFP, offerors could submit proposal for one
or both sites. [Deleted].
2. This evaluation criterion (qualification of service personnel)
required "evidence" of the "necessary qualified skill[s]" of service
technicians, including the submission of "three (3) to four (4) names
of individuals actually to be assigned to service the instruments
[specified] together with a resume of their experience and educational
backgrounds."
3. The protester proposed a price of [deleted]; Dupont proposed a
price of [deleted].
4. In contrast, Dupont proposed [deleted] technicians and also
provided in its proposal a very specific methodology for [deleted].
5. In its comments on the agency report, the protester argues that the
agency's discussion question was inadequate and misleading. However,
simply from our reading of the protester's technical response to the
discussion question, we find that the protester was reasonably advised
of this area of concern (lack of adequate staffing) by the agency. As
the protester concedes, "discussions need not be all-encompassing and
should not become a 'spoon feeding' exercise." See Acumen
Eng'g/Analysis, Inc., B-260102, May 11, 1995, 95-1 CPD para. 240.
6. The protester argues that it submitted the resume [deleted]. The
TEP had concerns regarding this individual [deleted]. In any event,
the fact remains that the protester's substantive technical approach
consisted of [deleted], while Dupont firmly proposed [deleted].