BNUMBER: B-270592.2; B-270592.3; B-270592.4; B-270592.5
DATE: March 29, 1996
TITLE: Global Industries, Inc.
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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:Global Industries, Inc.
File: B-270592.2; B-270592.3; B-270592.4; B-270592.5
Date:March 29, 1996
Richard S. Ewing, Esq., James A. Dobkin, Esq., John D. Roesser, Esq.,
Arnold & Porter, for the protester.
S. Gregg Kunzi, Esq., Thomas L. McGovern III, Esq., and David W.
Burgett, Esq., Hogan & Hartson, L.L.P., for Nightingale, Inc., an
intervenor.
C. Joseph Carroll, Esq., and Jonathan Cramer, Esq., Department of
Justice, Federal Bureau of Prisons, for the agency.
Katherine I. Riback, Esq., Glenn Wolcott, Esq., and Paul Lieberman,
Esq., Office of the General Counsel, GAO, participated in the
preparation of the decision.
DIGEST
Agency failed to conduct meaningful discussions in a procurement for
ergonomic chairs where it did not identify evaluated problems with the
comfort of the protester's chairs which were of serious concern to the
agency's evaluators but were considered to be correctable.
DECISION
Global Industries, Inc. protests the award of a contract to
Nightingale, Inc. by Federal Prison Industries, Inc., doing business
under the trade name UNICOR, under request for proposals (RFP) No.
IPI-R-0315-95. Global protests, among other things, that the agency
failed to conduct meaningful discussions.
We sustain the protest.
BACKGROUND
The RFP contemplated the award of a 5-year fixed-price requirements
contract to provide two lines of office chairs, the "Economy
Ergonomic" and the "Medium Range Ergonomic." Within each chair line,
offerors were required to propose specified models, plus a variety of
options, applicable to the different models being offered, such as
soft wheel casters, seat angle adjustment, and adjustable lumbar
support. The chairs were to be purchased from the awardee in the form
of chair kits that would be assembled by inmates, and then marketed by
UNICOR. The RFP required that offerors submit written proposals and
certified test reports showing compliance with various requirements.
In addition, offerors were obliged to make a 90-minute in-person
presentation to UNICOR setting forth their approaches to accomplishing
the requirements of the statement of work. At the presentation,
offerors were required to provide certain production samples for the
agency to evaluate and test.
The RFP provided that award would be made to the responsible offeror
whose proposal represented the best value to the government, taking
into consideration price and technical quality, with the technical
factor being more important than price. As amended, the RFP listed
the following technical subfactors, in descending order of importance:
(1) acceptability of components; (2) aesthetics, comfort level, and
marketability; (3) manufacturing capability and history of production;
(4) vertical integration; (5) product rights; and (6) ease of
assembly.
The agency received five offers in response to the solicitation. Each
offeror made an in-person presentation to UNICOR, which included a
question and answer session and an examination of the sample chairs.
The technical evaluation panel (TEP) members then discussed the
advantages and disadvantages of each proposal and assigned an overall
numerical score to each. In evaluating proposals, the evaluators did
not assign particular ratings (numerical or adjectival) for any of the
six technical factors. Rather, after discussing the strengths and
weaknesses of each proposal, the TEP agreed to an overall numerical
score which was based on the following evaluation framework:
excellent--91 to 100 points (a comprehensive and thorough proposal of
exceptional merit with no or only minor weaknesses); very good--71 to
90 points (a proposal where strengths outweigh existing weaknesses,
and any major weaknesses are correctable); good--51 to 70 points (a
proposal where weaknesses equal strengths, and weaknesses are probably
correctable); fair--31 to 50 points (a proposal where one or more
weaknesses outweighs any strengths, and these weaknesses could
probably be improved, minimized, or corrected); and poor--0 to 30
points (a proposal with one or more major weaknesses that are either
difficult to correct or are not correctable). At the hearing
conducted by our Office in connection with this protest, the TEP chair
testified that the members of the TEP "were aware in our minds of each
level of importance" of the individual subfactors, when calculating
each proposal's total numerical score. In addition, the record
evidences that the first technical subfactor, acceptability of
components, was essentially evaluated on a "go/no go" basis, in that
under this subfactor the TEP primarily examined proffered test reports
to determine whether the offered chairs complied with the required
testing standards.
Following evaluation, three proposals, including Nightingale's and
Global's, were included in the competitive range. The initial
technical scores and proposed costs of the competitive range proposals
were as follows:
Offeror Technical Score (100 points maximum)Total Price
Nightingale [deleted] [deleted]
Offeror A [deleted] [deleted]
Global [deleted] [deleted]
Under the scoring system described above, Global's proposal was rated
"very good" and described as "[a] proposal which demonstrates overall
competence . . . . Any major weaknesses are correctable." Global's
comparatively lower technical rating reflected the TEP's determination
that Global's proposal had certain significant weaknesses under the
aesthetics, comfort level and marketability subfactor. As indicated
above, this subfactor was the most heavily weighted, relatively
evaluated subfactor (i.e., subfactor not evaluated on a go/no go
basis). Specifically, the TEP noted that the overall comfort of the
Economy Ergonomic chairs was compromised by a "bottoming out" of the
seat foam,[1] and, with regard to the Medium Range Ergonomic chairs,
by pressure being placed on the outside of the legs--referred to as
"pressure points." The TEP's initial consensus evaluation of Global
included the following assessment:
"The weaknesses in aesthetics and comfort raises questions about
the marketability of the products and were the primary reason
that this proposal is roughly in the low-middle of the very good
range."
Written discussions were subsequently conducted with each competitive
range offeror. No questions were posed to Global regarding the
agency's concerns under the aesthetics, comfort and marketability
evaluation factor, particularly the "bottoming out" and "pressure
point" concerns.
Best and final offers (BAFO) were subsequently requested and
submitted. The final evaluated scores and proposed prices were as
follows:
Offeror Technical Score Evaluated Price
Nightingale [deleted] [deleted]
Offeror A [deleted] [deleted]
Global [deleted] [deleted]
In selecting Nightingale for award, the contracting officer repeated
the TEP's earlier concerns regarding the comfort of Global's chairs,
stating:
"Global's products were also generally attractive; however, the
comfort of its product lines was mixed. The econo-line's seat
cushions had a tendency to "bottom out" which impacts long-term
comfort. The medium range chairs were fairly comfortable;
however, the seat foam put pressure on the outside of the legs
and would have a negative impact upon long-term comfort.
Global's proposal included many strengths (i.e., manufacturing
capability, vertical integration, product rights) and this is
reflected in their overall technical rating. Additionally,
Global submitted the lowest total price and is a very good value
to the Government."
On November 14, 1995, the agency awarded the contract to Nightingale.
This protest followed. Performance of Nightingale's contract has not
been suspended based on the agency's determination that continued
contract performance is in the best interest of the government.
DISCUSSION
Global protests that by virtue of UNICOR's failure to advise Global of
the agency's concerns regarding the comfort factors associated with
Global's chairs, UNICOR failed to conduct meaningful discussions.
In negotiated procurements, contracting officers generally are
required to conduct discussions with all offerors whose proposals are
within the competitive range. 41 U.S.C. sec. 253b(d)(2) (1994); Federal
Acquisition Regulation (FAR) sec. 15.610. Although the discussions need
not be all-encompassing, discussions must be meaningful; that is, the
agency must lead offerors into the areas of their proposals which
require amplification or revision. Jaycor, B-240029.2 et al., Oct.
31, 1990, 90-2 CPD para. 354. As reflected in FAR sec. 15.610, the
Competition in Contracting Act of 1984 effectively requires agencies
to point out weaknesses, deficiencies or excesses in proposals that
need to be addressed in order for an offeror to have a reasonable
chance of being selected for award. See FAR sec. 15.609(a); Price
Waterhouse, B-222562, Aug. 18, 1986, 86-2 CPD para. 190. In short,
discussions cannot be meaningful unless they lead an offeror into
those aspects of its proposal that must be addressed in order for it
to have a reasonable chance of being selected for award. Eldyne,
Inc., B-250158 et al., Jan. 14, 1993, 93-1 CPD para. 430, recon. denied
Department of the Navy--Recon., 72 Comp. Gen. 221 (1993), 93-1 CPD para.
422.
The agency maintains that it was not required to discuss the
weaknesses in Global's proposal relating to comfort because these
weaknesses did not rise to the level of deficiencies rendering
Global's proposal technically unacceptable. We disagree.
The record shows that "the primary reasons" the agency questioned,
during its evaluation, whether Global's chairs could be successfully
marketed were their tendency to "bottom out" and the problems related
to "pressure points," which adversely impacted on the comfort of the
chairs. At the hearing conducted in connection with this protest, the
TEP chair testified that these weaknesses were "of major importance"
and a "serious concern" to the agency evaluators, that the weaknesses
would be "of major value and concern to the consumers," and that they
would "affect marketability" of the chairs. Thus, regardless of the
label the agency attaches to its concerns, the agency itself made it
clear at the hearing that the problems had a serious impact on the
evaluated comfort and marketability of the chairs. We think it is
well-established that these are exactly the kind of "weaknesses" that
under both the FAR and our decisions should be pointed out during
discussions. See, e.g., Eldyne, Inc., supra.
The agency also argues that it was not required to discuss these
because they were inherent in Global's design, and revision of that
design would have required substantial time and effort. The record
does not support the agency's argument. We first note that the chairs
proposed by Global for this procurement incorporated various aspects
of different existing chair lines; they were not "off-the-shelf"
chairs. At the hearing both the TEP chair and the contracting officer
agreed that the weaknesses in Global's proposal were considered
"correctable." Indeed, the TEP chair testified that these problems
would possibly be easily resolved to the agency's satisfaction by
altering the density, shape, or width of the seat foam, and Global's
representatives testified that Global could have effectively addressed
the agency's comfort concerns by altering the density, shape or width
of the foam used in the seat cushions, or by altering the height of
the chair seat, and that such alterations could have been accomplished
in a matter of days. On this record, we find without merit the
agency's assertion that discussions regarding these matters were not
required because the weaknesses were inherent in Global's product
design.
Finally, the agency maintains that any weaknesses with regard to the
evaluation factor aesthetics, comfort and marketability were
inappropriate topics for discussions in that such matters generally
reflected the inventiveness of each offeror in the development of its
products, and raising such issues would involve the agency in "product
development." The agency maintains that if such weaknesses had been
brought to Global's attention, the agency would have been required to
discuss similar "product development" matters with other offerors, and
that this would have constituted technical leveling.
We first note that while technical leveling is defined by FAR sec.
15.610(d) as helping an offeror bring its proposal up to the level of
other proposals "through successive rounds of discussions," Global had
only a single round of discussions during which the agency's serious
concerns were not identified. We also fail to see how labeling the
concern a "product development" matter is of any consequence with
respect to the question of whether discussions were required. In any
case, we note that notwithstanding the contracting officer's assertion
that matters regarding aesthetics, comfort and marketability were not
appropriate topics for discussion, the agency's discussion letter to
Nightingale stated:
"Please consider the following list of weaknesses/clarifications
that the evaluation panel has identified as requiring additional
information.
. . . . .
"Aesthetics, Comfort, Marketability
"1. The mechanisms using a 'bolt' type adjustment were wobbly
when unscrewed. Combined with a short screw length, this make
losing the bolts a concern."
While the agency now argues that this weakness was mistakenly
categorized under the aesthetics, comfort and marketability subfactor,
it appears to be similar in kind to the perceived weaknesses in
Global's proposal under this factor; indeed, the agency has offered no
plausible rationale which warrants redefining or
re-categorizing this concern after the fact. Under these
circumstances, the agency should have afforded Global comparable
discussions regarding weaknesses in Global's proposal under the
aesthetics, comfort and marketability subfactor.
We sustain the protest.[2]
RECOMMENDATION
Where, as here, an agency determines that it is in the best interest
of the government to proceed with contract performance in the face of
a protest in our Office, and we sustain the protest, we are required
by the Competition in Contracting Act of 1984, 31 U.S.C. sec. 3554(b)(2),
to make our recommendation for corrective action without regard to any
cost or disruption from termination, recompeting or reawarding the
contract. Accordingly, we recommend that the agency reopen the
negotiations with all competitive range offerors, conduct meaningful
discussions, and request the submissions of BAFOs.[3] If a proposal
other than Nightingale's is determined to offer the best value to the
government, Nightingale's contract should be terminated and award made
to that offeror. In addition, we recommend that Global be reimbursed
for the reasonable costs of filing and pursuing this protest,
including attorneys' fees. Bid Protest Regulations, section
21.8(d)(1), 60 Fed. Reg. 40,737, 40,743 (Aug. 10, 1995) (to be
codified at 4 C.F.R. sec. 21.8(d)(1)). In accordance with section
21.8(f)(1), 60 Fed. Reg. supra (to be codified at 4 C.F.R. sec. 21.8
(f)(1)), Global's certified claim for such costs, including the time
expended and costs incurred, must be submitted directly to the agency
within 90 days after receipt of this decision.
Comptroller General
of the United States
1. That is, a person sitting in the chair could feel the chair bottom
through the foam pad on the chair seat.
2. Global has raised various other issues in connection with this
procurement, the primary one of which is an allegation that
Nightingale's chairs do not meet the RFP requirements regarding
adjustable lumbar support. We have considered this issue and conclude
that Nightingale's chairs do, in fact, meet the solicitation
requirements regarding adjustable lumbar support. We note that
amendment No. 3 states that the chairs submitted with an offeror's
proposal should "emulate" Human Factors Standard (HFS) 100, which
states that "[c]urrent research does not clearly indicate the specific
requirement for lumbar support." Global's representative acknowledges
that HFS 100 fails to specify any minimum requirement for lumbar
support and that this suggests that, if there is some curvature of the
lumbar area of the chair back, then lumbar support, as indicated by
HFS 100, has been provided. The chairs that Nightingale submitted
with its proposal, as demonstrated by cutaways of the chair back
examined at the hearing, show a curvature of approximately 3/8-inch
when the chair is unoccupied, and when a person sits in the chair
against the chair back pressure is exerted against the two "wings" of
the chair, which are slightly closer to each other than the width of
even a small person's back, thus causing forward movement of the
lumbar support mechanism to meet the user's back. Under the
circumstances, the lumbar support provided by Nightingale's chairs
satisfied the RFP's requirements regarding adjustable lumbar support.
We have also considered and rejected the various other allegations
raised in Global's protest including, for example, that the RFP
contained ambiguities and that Nightingale's proposal contained an
incorrect price.
3. Based on the hearing testimony of Global's representatives, it
would appear that this action could be completed in a matter of a few
days.