BNUMBER: B-266360
DATE: February 12, 1996
TITLE: Southern Research
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Matter of:Southern Research
File: B-266360
Date: February 12, 1996
Karen G. Wood for the protester.
Nicholas P. Retson, Esq., and Michael J. O'Farrell, Jr., Esq.,
Department of the Army, for the agency.
Paula A. Williams, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Post-award protest challenging the requirements in solicitation
for additional archeological services or staff as vague, indefinite,
or unnecessary is untimely.
2. Protest against award to offeror with a lower-priced, slightly
lower-rated proposal is denied where agency reasonably determined that
cost premium involved in awarding to higher-rated, higher-priced
offeror was not justified.
DECISION
Southern Research protests the award of a contract to Southeastern
Archeological Services, under request for proposals (RFP) No.
DABT10-95-R-0055, issued by the Department of the Army, for
archeological services. Southern argues that the RFP is defective
because the performance work statement (PWS) contains a requirement
for additional services that were "unquantified, vague and
indefinite"; that during discussions the agency effectively requested
the protester to add more personnel than what was required by the
solicitation which caused the protester to increase its overall price;
and that the selection of Southeastern for award was inconsistent with
the award criteria.
We deny the protest.
As amended, the RFP contemplated award of a firm, fixed-price contract
for an archeological survey of approximately 4,406 acres located at
Fort Benning. The PWS called for a contractor to provide personnel,
facilities, equipment, and supplies to perform the required types of
work, including background research, field survey, laboratory
analysis, artifact conservation, documentation and reporting. Among
other things, the PWS stated at section C.5.4.4 that:
"Additional services which may be required during the intensive
survey include written recommendations for mitigation and
alternatives; preparation of time and cost estimates for
mitigation measures; completion of National Register of Historic
Places forms; and preparation and production of special reports."
The solicitation established 12 labor categories, setting forth
minimum educational and experience requirements. The RFP generally
provided that award would be made to the offeror whose proposal can
accomplish the necessary work in a manner most advantageous to the
government. It expressly stated that technical experience and
delivery were more important than price.
On August 16, prior to the time set for receipt of initial proposals,
Southern submitted a written request to the contracting officer to
clarify six technical areas in the RFP, including section C.5.4.4. In
response, the Army issued amendment 0002 on August 25 which revised
four of the six technical areas; however, section C.5.4.4 of the
solicitation was not revised. In follow-up telephone conversations
initiated by the protester with the contracting officer and the
contract specialist, the firm was advised that the two areas not
addressed by amendment 0002 would remain the same.
The agency received four offers, including offers from Southern and
Southeastern, by the September 11 amended closing date. All four
offers were included in the competitive range with the proposals
submitted by Southern and Southeastern receiving the highest technical
rating possible. Based on Southern's greater experience as a
successful contractor for these type services at Fort Benning, its
proposal was ranked first; Southeastern's proposal was ranked second.
Oral discussions were held with the four offerors on September 15, and
best and final offers (BAFO) were submitted on September 19. After
BAFOs were evaluated, the technical ratings and rankings for Southern
and Southeastern remained the same; Southeastern offered a BAFO price
that was $5,100 less than the price offered by Southern. The
contracting officer determined that Southeastern's offer was the most
advantageous to the government on the basis that Southeastern's price
advantage outweighed the protester's slight advantage in experience.
Award was made to Southeastern on September 22. This protest
followed.
We dismiss as untimely the argument that Southern submitted a
higher-priced offer than it otherwise would have because of the
uncertainty created by the vague and indefinite additional services
required by section C.5.4.4. Our Bid Protest Regulations contain
strict rules requiring timely submission of protests. Under these
rules, protests based upon alleged improprieties in a solicitation
which are apparent prior to the time set for receipt of initial
proposals must be filed prior to that closing time. 4 C.F.R. sec.
21.2(a)(1) (1995).
Here, Southern clearly knew of the alleged deficiency in the
solicitation prior to submitting its proposal. In fact, the protester
asserts that it "added to our bid to cover clause C.5.4.4," after the
contracting officer refused to change or otherwise revise section
C.5.4.4. If the protester still believed that the solicitation
contained vague and undefinable requirements for additional services ,
it should have protested on this basis before the September 11 amended
closing date for receipt of initial proposals. Southern's failure to
protest prior to that date precluded the possibility that corrective
action could be taken, if warranted, before the expenditure of
significant time and effort and the exposure of prices. Southern's
post-award protest in this regard is untimely. See Capitol Paving of
D.C., Inc., B-256896, July 5, 1994, 94-2 CPD para. 10.
Southern also complains that the agency acted improperly by imposing
unnecessary and unrelated staffing requirements during discussions.
The protester states that it knew at the time that the agency was
acting improperly but that it nonetheless elected to simply include
the cost for the additional personnel in its BAFO prices. We dismiss
this issue as untimely also. We do not think a vendor can learn of
what it clearly views as improper agency action, and continue to
compete on that basis without objection, and then complain when it is
not selected for award. Southern should have protested this matter
prior to the closing date for BAFOs. 4 C.F.R. sec. 21.2(a)(1).
Finally, Southern argues that the award decision was flawed since the
agency did not fully take into account Southern's evaluated
superiority under the technical factor and cost became the deciding
factor, contrary to the announced criteria in the RFP. Source
selection officials in a negotiated procurement have broad discretion
in determining the manner and extent to which they will make use of
the technical and cost evaluation results; cost/technical tradeoffs
may be made, and the extent to which one may be sacrificed for the
other is governed by the test of rationality and consistency with the
established evaluation factors. Family Realty, B-247772, July 6,
1992, 92-2 CPD para. 6. Even where cost or price is the least important
evaluation factor, an agency may award to an offeror with a
lower-cost, lower-scored proposal if it determines that the cost
premium involved in awarding to a higher-rated, higher-priced offeror
is not justified. Id.; Dayton T. Brown, Inc., B-229664, Mar. 30,
1988, 88-1 CPD para. 321.
The tradeoff here was reasonable. As discussed above, the agency
recognized that Southern's proposal was somewhat more advantageous
under the technical factor, because of its record of successfully
providing the required archeological services under its incumbent
contracts at Fort Benning. The contracting officer determined,
however, that since Southeastern had received the highest technical
rating possible, Southern's advantage in experience did not warrant
award at Southern's higher price. Consequently, in light of the
overall high quality of Southeastern's proposal, we have no basis for
questioning the agency's conclusion that Southern's advantage under
the experience factor was not as significant as Southeastern's price
advantage. While price was the least important evaluation factor, the
agency was not precluded (as Southern's argument suggests) from
ultimately basing the award on the lowest price merely because the
price factor was least important. See Dayton T. Brown, Inc., supra.
The protest is denied.
Comptroller General
of the United States