BNUMBER: B-266050
DATE: January 23, 1996
TITLE: Criterion Corporation
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DOCUMENT FOR PUBLIC RELEASE
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:Criterion Corporation
File: B-266050
Date:January 23, 1996
Douglas L. Patin, Esq., Spriggs & Hollingsworth, for the protester.
Antonio R. Franco, Esq., Pamela J. Mazza, Esq., and Philip M. Dearborn
III, Esq., Piliero, Mazza & Pargament, for Phoenix Systems &
Technologies, an interested party.
Col. Nicholas P. Retson and Capt. Bryant S. Banes, Department of the
Army, for the agency.
Behn Miller, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest challenging agency's determination that awardee's proposal
was technically superior is denied where, even though protester's
proposal received a higher technical score than the awardee's under
the past performance technical evaluation factor, the awardee's
proposal received significantly higher scores for three of the
remaining four technical evaluation factors--which were ranked equally
with the past performance technical evaluation factor--resulting in an
overall higher technical score for the awardee.
2. Award to higher priced offeror was proper where agency reasonably
determined that superior technical merit of the awardee's proposal
warranted paying the associated price premium and the solicitation
emphasized that technical merit was more important than price.
DECISION
Criterion Corporation protests the award of a contract to Phoenix
Systems & Technology (PS&T) under request for proposals (RFP) No.
DAHA30-95-R-0005, issued by Department of the Army for operation and
maintenance of the airfield located at Griffiss Air Force Base, Rome,
New York. Criterion contends that the agency's determination that
PS&T's proposal was technically superior to the protester's is
improper since the awardee's past performance is not as strong as the
protester's. Criterion also contends that the agency improperly based
the contract award solely on technical merit, without regard to price.
We deny the protest.
The RFP was issued on June 9, 1995, and contemplated the award of a
firm, fixed-price indefinite quantity contract for a base year period
with 4 option years.
Offerors were required to submit both technical and price proposals.
The RFP provided that technical proposals would be evaluated under the
following five evaluation criteria, which were rated of equal
importance: past performance; quality assurance; organizational
structure; orientation period; and demonstrated understanding of the
statement of work requirements. The RFP further provided that
technical merit was more important than price, and that the "most
advantageous" offer would be selected for award.
By the August 18 closing date, three proposals were received,
including offers from PS&T and the protester. Criterion's proposal
was priced at $17,129,444 and PS&T's proposal was priced at
$19,337,600. By August 23, the technical evaluation panel (TEP) had
completed its evaluation of offerors' technical proposals. While
Criterion's proposal received a higher technical rating than PS&T's
under the past performance technical evaluation factor, it was ranked
second behind PS&T's in overall technical merit. Shortly thereafter,
the TEP advised the contracting officer that because PS&T's "proposal
outlined the best plan to accomplish" the contract, the team had
determined PS&T's proposal was "the technically superior proposal"; by
memorandum dated August 23, the TEP unanimously concluded that because
of the superior technical merit of PS&T's proposal, it provided the
"best value to the [g]overnment."
After comparing the TEP's evaluation results and recommendation with
the results of the agency's price proposal evaluation, the contracting
officer--who was the source selection official for this
procurement--determined that PS&T's technical superiority warranted
paying an approximately $2 million price premium. Consequently, on
August 29, the Army awarded this contract to PS&T. On September 8,
PS&T filed this protest.
Criterion first asserts that its proposal should have been considered
technically superior to PS&T's proposal because of its superior past
performance.
We will examine an agency's technical evaluation to ensure that it was
reasonable and consistent with the evaluation criteria and applicable
statutes and regulations. Information Sys. & Networks Corp., 69 Comp.
Gen. 284 (1990), 90-1 CPD para. 203.
In this case, the agency credited Criterion's proposal for its
superior past performance with 260 points as compared to PS&T's 238
points. However, our review of the record shows that even considering
this technical superiority, PS&T's proposal was reasonably found to be
technically superior because of its higher ratings under three of the
four remaining technical evaluation factors--which were ranked of
equal importance with the past performance factor. Specifically,
PS&T's and Criterion's scores for these 4 factors were as follows:
Evaluation Factor PS&T Criterion
Quality Assurance 354 339
Organizational Structure 356 317
Orientation Period 388 327
Demonstrated Understanding358 378
In total, PS&T received 1,694 points for its technical proposal while
Criterion received 1,621.
The reasons for PS&T's higher point score were memorialized in a
contemporaneous, summary evaluation statement executed by each member
of the TEP. Specifically, the TEP determined that PS&T submitted the
"[b]est [quality control] plan of the three [proposals] with numerous
total quality management (TQM) parts that would be verifiable and lead
to good quality involvement," as well as "the best organizational plan
in terms of manpower and duties for cross-utilizations." The TEP
report documented the reasons why PST's proposed plans were considered
the best and why Criterion's were not. Additionally, the TEP reported
that because PS&T "has so many local personnel on line and has an
extremely specific plan for the orientation period, the team felt that
[PS&T's] orientation plan was the best." Criterion has not shown the
agency's determinations that PS&T's proposal was superior under these
factors was unreasonable.
Thus, the evaluation documentation shows that even considering
Criterion's higher past performance rating, the TEP reasonably
concluded that given PS&T's documented strengths under the quality
assurance, organizational structure, and orientation period factors,
PS&T's technical proposal was significantly stronger than Criterion's
as indicated by the point scores. As noted above, past performance
was only one of five equally ranked technical factors; moreover, the
record shows that although PS&T did not have as strong a performance
background as Criterion, PS&T nonetheless had a clearly applicable
history of similar experience since the firm "was involved in a number
of recent and on-going contracts related to . . . essential airfield
type of operations." Although Criterion disagrees with the agency's
technical conclusions, such disagreement does not render the
evaluation unreasonable. Litton Sys., Inc., B-237596.3, Aug. 8, 1990,
90-2 CPD para. 115.
Criterion also argues that the Army improperly failed to consider
price in its selection decision. Alternatively, Criterion argues that
if price was considered, the record does not contain sufficient
documentation of a contemporaneous price analysis, and consequently
its protest should be sustained on this basis.
Where, as here, the RFP provides that technical considerations will be
more important than price, agency selection officials have broad
discretion in determining the manner and extent to which they will
make use of the technical and price evaluation results in making
price/technical tradeoffs. Red River Serv. Corp.; Mark Dunning
Indus., Inc., B-253671 et al., Apr. 22, 1994, 94-1 CPD para. 385.
A source selection official's judgment must be documented in
sufficient detail to show it is not arbitrary. KMS Fusion, Inc.,
B-242529, May 8, 1991, 91-1 CPD para. 447. The official's failure to
specifically discuss the price/technical tradeoff in the selection
decision does not affect the validity of the decision, if the record
shows that the agency reasonably made its determination. McShade
Gov't Contracting Servs., B-232977, Feb. 6, 1989, 89-1 CPD para. 118. The
fact that the explanation was not contained in the contemporaneous
evaluation record does not provide a basis to disregard it in our
review. Allied-Signal Aerospace Co.; Bendix Communications, Div.,
B-249214.4, Jan. 29, 1993, 93-1 CPD para. 109.
In this case, the record shows that the contracting officer carefully
weighed the superior technical merit of PS&T's proposal and its higher
price against the price savings provided by Criterion's offer.
Although the record does not contain a contemporaneous document
memorializing this price/technical tradeoff analysis, the details of
this analysis are nonetheless clearly spelled out in a memorandum
prepared for our Office's review, responding to the protester's
contentions.
Specifically, the contracting officer found that Criterion's lower
price resulted in part from its technical strategy, which relied on a
cross-utilization of personnel--resulting in the rotation of full-time
personnel to perform other functions during peak work loads and shared
job responsibilities among part-time personnel. The contracting
officer determined that although this staffing strategy was feasible,
it represented a performance risk not present in PS&T's proposal which
offered [deleted] than Criterion and [deleted]. Based on the
technical superiority of PS&T's offer, as well as the noted
performance risks inherent in Criterion's staffing approach, the
contracting officer determined that PS&T's technical strengths
warranted paying the associated price premium of approximately $2
million and that PS&T's proposal offered the "best value" to the Army.
From our review of the record, which as indicated shows that PS&T's
proposal was technically superior, and given that the solicitation
emphasized technical merit was more important to price, we find that
the agency's price/technical tradeoff analysis reasonably justified
the agency's award selection decision. Sociometrics, Inc.,
B-261367.2; B-261367.3, Nov. 1, 1995, 95-2 CPD para. 201; General Research
Corp., B-253866.2, Dec. 17, 1993, 93-2 CPD para. 325.[1]
The protest is denied.
Comptroller General
of the United States
1. Criterion also contends that the agency failed to timely notify it
of the PS&T award, resulting in the protester's failure to obtain a
stay of contract performance when it filed a protest at our Office.
It appears from the record that although the agency timely mailed the
award notice to a local New York corporate location listed in the
protester's proposal, the protester apparently expected to receive
this notice at its Texas headquarters. In any event, since we deny
the protester's challenges to the selection decision and find the
award to be proper, we will not consider this contention further since
the protester was not prejudiced by any delay in notification. See
Main Elec. Ltd., B-224026, Nov. 3, 1986, 86-2 CPD para. 511.