BNUMBER: B-270988
DATE: May 7, 1996
TITLE: R&A Technical Services
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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:R&A Technical Services
File: B-270988
Date:May 7, 1996
J. William Bennett for the protester.
Matthew D. Thomason III, Esq., and Charles Frew, Esq., Department of
the Army, 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
1. Where contracting agency reasonably rated protester's and
awardee's proposals as technically equal, contracting officer properly
made award of a fixed-price contract to the lower-priced offeror.
2. Agency performed appropriate price analysis under solicitation
which contemplated award of a fixed-price contract where the agency
determined that the awardee's price was reasonable on the basis of a
comparison to the other prices offered and the independent government
price estimate.
DECISION
R&A Technical Services protests the award of a contract to Mellor
Engineering Corporation under request for proposals (RFP) No.
DACA87-95-R-0101, issued as a competitive section 8(a) set-aside by
the U.S. Army Engineering and Support Center, Huntsville, Alabama for
general analysis, detection and monitoring services of a chemical
stockpile located at Tooele Army Depot. The protester principally
contends that the Army failed to make a proper price/technical
tradeoff in selecting the lower priced, lower technically rated
offeror for award.
We deny the protest.
The RFP stated the agency would award a contract that would represent
the best value to the government, based on the evaluation of technical
and price factors.[1] The RFP, contemplating the award of a fixed
price contract for a base year and 4 option years, required the
submission of technical and price proposals by each offeror. The RFP
listed the following technical evaluation criteria: (1) experience;
(2) personnel; (3) management; (4) past performance; and (5) technical
approach. The RFP stated that technical approach was the most
important factor, followed by, in descending order of importance,
experience, personnel, management and past performance.[2] The RFP
contained a list of 10 recommended staffing categories of skilled
personnel, including, for example, chemist, gas chromatograph
specialist, and technical editor. For each category, the RFP
contained a description of staffing duties.
Concerning price, the RFP stated that price would not be a scored
factor, but would be evaluated as to reasonableness and
affordability.[3] The RFP advised offerors that the total price for
the base and option years would be evaluated. The RFP also required
offerors to submit a contract pricing proposal which showed the
"rationale followed in development of direct labor, overhead, G&A and
profit." The RFP contained a Service Contract Act (SCA) Wage
Determination and cautioned offerors that their employee base rates
had to conform with this wage determination.
Six firms submitted initial proposals by the closing date of November
16, 1995. The agency's Technical/Management Evaluation Board
evaluated initial proposals. On December 6, the evaluators reported
their findings to the contracting officer.[4] The numerical rankings
and prices were as follows:
Offeror Technical/Management ScorePrice[5]
R&A [DELETED] [DELETED]
Offeror A [DELETED] [DELETED]
Mellor [DELETED] [DELETED]
The evaluators' narrative report noted as follows:
"[R&A's] proposal was complete and addressed [all] technical and
management criteria required by the RFP [and was the best overall
proposal]. [Mellor and Offeror A] were scored lower than R&A
because they did not fully address or demonstrate their abilities
to satisfy all the requirements of the RFP. . . . Recommendation:
R&A has the highest Technical/Management score and is ranked
first. [R&A] submitted a proposal with no deficiencies, or
weaknesses/disadvantages. [Its] proposal was best overall
because [it] provided more detailed information than the other
offerors. [Offeror A] submitted an excellent proposal and had no
deficiencies with a few weakness/disadvantages. . . . [Mellor]
provided an excellent proposal [and] provided a proposal with no
deficiencies and only a couple of weakness or disadvantages. The
board felt that any one of these three highly qualified firms
could satisfactorily perform all technical and management work
required by this contract without further discussions,
information or submission[s]."
Based upon the findings of the evaluators, the contracting officer
included the offers of these three firms in the competitive range.
The contracting officer requested best and final offers (BAFO) from
these firms in a letter which also stated that "[t]here were no
deficiencies or discrepancies noted in your technical or price
proposal." BAFOs were received and evaluated. None of the offerors
made changes in their technical proposals; prices proposed by the
three offerors also remained the same except for a minimal price
adjustment by Offeror A.
Based on the evaluation of BAFOs, the agency's evaluators found that
all three firms were "highly qualified and technically acceptable to
perform the work." Further, although R&A had provided "more detailed
information," the evaluators found that Offeror A's and Mellor's
proposals were "excellent with few weaknesses/disadvantages" and that
all three firms were "technically equal." The evaluators also noted
that all three firms proposed to use many of the same personnel. The
evaluators concluded as follows:
"Mellor has perfect scores in personnel and management and a
nearly perfect score in experience. Mellor scored excellent
in the criteria for past performance. All sources stated they
would hire [Mellor] for future projects if the occasion arose.
[Mellor] is the most advantageous to the government [as the
lowest priced offeror]."
Based on the evaluators' technical determination that the three firms
were technically equal, the contracting officer proceeded to award the
contract to Mellor, the low offeror. This protest followed.
The protester argues that it scored higher than Mellor and contends
that, contrary to the agency's view, its higher scores reflect actual
technical superiority and that the agency did not have a valid basis
for its decision to make award to a lower rated offeror at an
insignificant price savings. The protester also argues that the award
decision is improper because the record does not adequately document
the basis for the agency's evaluation and selection decision.
Specifically, the protester notes that the evaluators found "specific
and apparently quantifiable differences between the offerors" but
concluded, without any detailed reasoned analysis, that the proposals
were technically equal. According to the protester, there was "[n]o
analysis of the actual point differential, or anything else pertinent
to the solicitation requirements and the offers received." The
protester concludes that the agency's finding of "technical equality"
among the three proposals was defective.
A contracting agency properly may award a contract to a lower priced,
lower technically scored offeror if it decides that the price premium
involved in awarding to a higher rated, higher priced offeror is not
justified given the acceptable level of technical competence available
at the lower cost. Dayton T. Brown, Inc., B-229664, Mar. 30, 1988,
88-1 CPD para. 321. Evaluation scores are merely guides for the selection
official, who must use his judgment to determine what the technical
difference between competing proposals might mean to contract
performance, and who must consider what it would cost to take
advantage of it. Grey Advertising, Inc., 55 Comp. Gen. 1111 (1976),
76-1 CPD para. 325. The relevant considerations in such a case are
whether the award decision was reasonable in light of the RFP
evaluation scheme, and whether the selection official adequately
documented the basis for his selection. Dayton T. Brown, Inc., supra;
DynCorp, 71 Comp. Gen. 129 (1991), 91-2 CPD para. 575.
Our review of the record shows that the agency reasonably found the
proposals technically equal and selected the lower priced offeror. As
shown by the technical point scores [DELETED], both Mellor's and the
protester's proposals were considered excellent with minor evaluated
differences between them. The contracting officer states that the
major difference between the protester's and Mellor's technical
proposals was that in the technical approach area the protester
"provided more detailed information concerning activities it would
conduct within specific time frames." He further states that Mellor's
technical proposal reflected similar activities but "tended to be more
general in its approach." The contracting officer also states that
both firms proposed to employ the same personnel in many positions;
consequently, many of the same personnel would be performing the work
regardless of which firm was awarded the contract. The contracting
officer concludes that it was therefore reasonable for him to select
the lower priced offeror.
The protester, in its comments on the agency report, notes only one
allegedly superior feature of its technical approach which resulted in
a "perfect" score under the technical approach factor--"this
difference was because the contract activities were more specifically
detailed and more specific performance time was set out in [the
protester's proposal]." However, we think that the agency reasonably
could decide that the protester's furnishing of more specifics and
details under the technical approach factor did not necessarily
reflect a superior technical advantage relative to Mellor's proposal
which contained a similar approach. Further, the protester has failed
to identify any deficiency or weakness in Mellor's proposal to show
that Mellor's proposal was other than technically equal from a
substantive standpoint. We have also confirmed the contracting
officer's statement that both offerors proposed to use many of the
same personnel to perform the work. Accordingly, we have no basis to
object to the contracting officer's conclusion that the proposals were
essentially equal technically.
The protester also argues that the contracting officer failed to make
an adequate price reasonableness determination.[6] We find no merit
to this argument.
Where, as here, the RFP contemplates award of a fixed-price contract,
the contracting agency is not required to conduct a detailed cost or
cost realism analysis. See PHP Healthcare Corp.; Sisters of Charity
of the Incarnate Word, B-251799 et al., May 4, 1993, 93-1 CPD para.
366. An agency may properly make a determination on the
reasonableness of prices based upon a comparison of such prices with
the government estimate and other offered prices. See Astro Pak
Corp., B-256345, June 6, 1994, 94-1 CPD para. 352. Here, the agency
conducted a price analysis which consisted of a comparison of the
awardee's price with the other prices proposed and a comparison of the
awardee's price with the independent government estimate. Based on
these comparisons, the agency concluded that Mellor's price was
realistic and reasonable. We have no reason to question the agency's
determination.
The protest is denied.
Comptroller General
of the United States
1. The agency states that while there was no statement in the RFP
concerning the relative importance of technical and price
considerations, offerors should have known that technical and price
considerations would "be approximately equal in weight." The
protester agrees with the agency's position. In any event, even if
technical considerations were stated by the RFP to be more important
than price, this would not affect in any way our decision here.
2. The RFP advised offerors that an "ideal proposal" would achieve a
maximum total score of 100 points. The RFP did not further break down
the scoring weights among each technical evaluation factor.
3. The RFP's schedule requested monthly unit prices for the services;
equipment costs, operating supplies and travel were not separately
priced.
4. We limit our discussion to the top three firms as found by the
evaluators.
5. The independent government price estimate was approximately $9.1
million.
6. In this regard, the protester argues that the contracting officer
failed to make an adequate analysis of Mellor's price proposal which
allegedly did not contain sufficient information to show that Mellor's
labor rates met SCA requirements. The protester's argument is not
that Mellor took exception to any SCA wage rate in its BAFO; rather,
the protester argues Mellor should have provided more cost information
to substantiate its compliance with the SCA wage rate. In a
fixed-price contract, we are unaware of any requirement to do so.
There is nothing in Mellor's BAFO which would indicate any intent to
modify its commitment to any SCA wage rates. See Carolina
Stevedoring Co., B-260006, May 18, 1995, 95-2 CPD para. 3.