BNUMBER: B-272182
DATE: September 9, 1996
TITLE: Heimann Systems, 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:Heimann Systems, Inc.
File: B-272182
Date:September 9, 1996
Sam Zalman Gdanski, Esq., for the protester.
Paul F. Khoury, Esq., Rand L. Allen, Esq., and Mark H. Neblett, Esq.,
Wiley, Rein & Fielding, for EG&G Astrophysics Research Corporation, an
intervenor.
Joni M. Gibson, Esq., Department of Justice, for the agency.
Jeanne W. Isrin, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest that evaluation of technical and price proposals was
improper is denied where the record shows that the evaluation was
reasonable and consistent with the solicitation's evaluation criteria.
2. Use of price scoring formula in the evaluation of proposals is not
objectionable merely because the solicitation did not inform offerors
that the formula would be used.
DECISION
Heimann Systems, Inc. protests the award of a contract to EG&G
Astrophysics Research Corporation under request for proposals (RFP)
No. MS-96-R-0006, issued by the United States Marshals Service (USMS),
Department of Justice, for the acquisition and installation of x-ray
security screening systems.
We deny the protest.
The RFP contemplated award of a fixed-price, indefinite quantity,
indefinite delivery contract for 1 base year, with four 1-year
options. Offerors were required to submit technical and price
proposals, plus a sample x-ray screening unit for testing and
evaluation. The technical proposals and samples were to be evaluated
under the following criteria: meeting specifications (60 of 100
available points); degree to which system's performance and features
exceed specifications, especially "resolution" and "penetration" (20
points); execution plan, resumes, corporate overview, and corporate
references (10 points); and past performance (10 points). The
technical evaluation was worth 60 percent of the overall score, and
the price evaluation 40 percent, with award to be made on a best value
basis.
Of six proposals received by the closing date, two--Heimann's and
EG&G's--were included in the competitive range. These proposals were
scored as follows[1]:
Offeror Raw Technical ScoreNormalizedTechnical Score
Price Score
Price
Total Score
Heimann 96.6 57.99 31.78 $8,703,620 89.74
EG&G 76.2 43.80 40.00 $6,915,850 83.80
Discussions were held with Heimann and EG&G. Heimann was informed
that its proposal was technically acceptable, with no deficiencies,
but two weaknesses were identified, only one of which is relevant
here. The sample units were required to undergo a "power supply
interruption" test, the purpose of which was to determine how long it
would take for a unit to automatically power-up and resume functioning
should power be cut. Heimann was advised that, during the test, black
lines (vertical bands) appeared across the monitor of Heimann's unit
following the restoration of power. In addition, Heimann was told
that its price was considered "somewhat excessive." EG&G, whose
proposal was found conditionally technically acceptable, was informed
of two deficiencies and two weaknesses in its proposal. Both offerors
were advised that they would be given 4 days to make any repairs or
changes to their sample units, after which best and final offers
(BAFO) were to be submitted.
Based on the BAFOs and retesting, EG&G's unit was found technically
acceptable because all cited deficiencies and weaknesses had been
corrected. Although Heimann's unit passed the power interruption
test, as it had before, the black lines which appeared on the screen
following restart still appeared. Heimann corrected the other cited
weakness in its proposal and reduced its price. The BAFO scoring was
as follows:
Offeror Raw Technical ScoreNormalizedTechnical Score
Price Score
Price
Total Score
Heimann 99 59.40 35.36 $7,824,240 94.76
EG&G 91.6 54.96 40.00 $6,915,850 94.96
Because EG&G's proposal received a higher total overall score, and
offered a significantly lower evaluated price than Heimann's, it was
judged the best value to the government, and award was made to EG&G on
May 21.
Heimann challenges both the technical and price evaluations. In
reviewing protests against allegedly improper evaluations, it is not
our role to reevaluate proposals. Rather, our Office examines the
record to determine whether the agency's judgment was reasonable and
in accord with the RFP's stated evaluation criteria. All Star
Maintenance, Inc., B-271119, June 17, 1996, 96-1 CPD para. 278.
HEIMANN'S TECHNICAL SCORE
Heimann maintains that since it was told in discussions that its
proposal contained no deficiencies, only weaknesses, and Heimann
corrected the weaknesses in its BAFO, its proposal, which received 99
raw score points, should have received the maximum possible score of
100 (60 normalized) points. This 1-point raw score increase would
raise Heimann's total normalized score to 95.36, higher than EG&G's,
and, Heimann asserts, thus would entitle Heimann to award.
This argument is without merit. There is no basis to conclude that
Heimann's technical proposal was entitled to a perfect score, since
the "black lines" problem with its monitor was not resolved in
Heimann's BAFO. In this regard, although Heimann asserts that it
corrected all weaknesses in its BAFO, its BAFO letter stated with
respect to the "black lines" problem only that:
". . . our technical personnel have analyzed this problem and
have identified the solution. This problem being fairly
minor, we have decided not to implement it on the test unit
but a viable solution is available should USMS decide this to
be mandatory to meet the minimum requirement."
The agency determined that Heimann's proposal was technically
acceptable notwithstanding this weakness, but Heimann's failure to
correct it reasonably justified a 1-point reduction in Heimann's raw
score.
UNDISCLOSED PRICE SCORING FORMULA
The price scores were determined as follows: USMS assigned the
maximum 40 points to the lowest-priced proposal in the
competitive range (EG&G's), and then divided EG&G's price by
Heimann's and multiplied by 40 to arrive at Heimann's score of 35.36.
Heimann objects to the use of this scoring method on the basis that it
was not disclosed in the solicitation. This argument is without
merit. While the Federal Acquisition Regulation (FAR) requires that
price and technical evaluation factors, and their relative importance,
be set forth in the solicitation, see FAR sec. 15.605(d)(1) and (2) (FAC
90-31), it does not require agencies to disclose the price evaluation
formula that will be applied. The use of the type of price scoring
formula that the agency utilized here, without disclosure in the RFP
of the agency's intention to use it, is relatively common and is not
objectionable. See Centex Constr. Co., Inc., B-238777, June 14, 1990,
90-1 CPD para. 566; Didactic Sys., Inc., B-190507, June 7, 1978, 78-1 CPD para.
418.
Heimann argues that the final price score computation should have
included two proposals that were eliminated from the competitive
range; since one was priced lower than EG&G's proposal, Heimann
concludes that doing so would have reduced EG&G's price score
sufficiently to make Heimann's proposal the highest rated. This
argument is specious. It clearly would be irrational to base the
scoring of BAFOs on a comparison with initial offers that were
rejected before reaching the BAFO stage of the competition.[2]
Utilization of an otherwise acceptable scoring approach that produces
an irrational result in a given case is inappropriate. Francis &
Jackson, Assocs., 57 Comp. Gen. 244 (1978), 78-1 CPD para. 79.
WARRANTY
Heimann maintains that its offered warranty--3 years on the screening
unit and 5 years on the x-ray generator--went beyond the
required 1-year warranty, but that this was not reflected in the
technical and price evaluations. Heimann argues that the value of the
additional warranty it offered is $139,181, based on repair services
required on the current incumbent contract; subtracting $139,181 from
Heimann's BAFO price would result in a high overall score of 95.40.
This argument is without merit. The technical evaluation report
clearly shows that Heimann's warranty was considered a strength under
the technical evaluation criterion for qualities that exceed
specifications. Further, there was no basis for factoring the value
of the extended warranty into Heimann's price, since the RFP did not
provide for consideration of the value of an extended warranty in the
price evaluation. See North Am. Automated Sys. Co., Inc., B-216561,
Feb. 15, 1985, 85-1 CPD para. 203. Heimann raises other arguments
concerning the warranty which are without merit, and do not warrant
discussion.
PAST PERFORMANCE INTERPRETATION
The RFP, section L-2 (5), "Corporate References/Past Performance,"
required that offerors provide "a minimum of five (5) current, or
previous clients who are receiving, or have received 'like'
supplies/services to the USMS requirement." Heimann argues that this
provision should have been construed as requiring client references
who have received the exact unit offered, and that, since EG&G's unit
is not the precise unit previously furnished, EG&G's proposal should
have been downgraded in this area. Heimann's strict reading of the
term "like" is unwarranted.
USMS states that its intention was to obtain references from previous
clients who had purchased the same or similar equipment, and the word
"like," as relevant here, is defined as "the same or nearly the same,"
"having the characteristics of," and "similar to."[3] Given that the
RFP did not elsewhere require that the references be based on the
identical unit, there was no basis for downgrading EG&G's proposal in
this area.
Heimann also argues that EG&G's proposal was deficient because its
sample unit was a prototype rather than a production model, which
Heimann read the RFP as requiring. There was no requirement that the
sample be a production model. Section L-21 of the RFP required as a
sample "one (1) X-ray System with Dual Energy Color System Option as
proposed by the offeror"; it did not state that the sample must
currently be in production or commercially available. Where the
solicitation does not require that the item to be procured be a
production model, there is no basis to object to the offering of a
prototype. See generally Agema Infrared Sys., B-222623, June 4, 1986,
86-1 CPD para. 524.[4]
ALLEGED IMPROPER MODIFICATION OF EG&G'S SAMPLE UNIT
Heimann maintains that EG&G was improperly permitted to repair or
modify its sample unit after the BAFO deadline for doing so. This
argument is refuted by the record. EG&G's sample unit initially
failed the power supply interruption test. Following discussions,
EG&G corrected the problem by installing an uninterruptible power
source (UPS) on the unit. When EG&G's unit was subsequently retested
after BAFOs, the unit was found to be unplugged, and it would only
start after being plugged in for approximately 30 minutes. Once
started, the unit passed the power supply interruption test. Four
days later, the contracting officer contacted EG&G and requested
clarification as to how to start the unit. EG&G informed him of the
installation of the UPS and stated that the reason for the 30-minute
start-up delay was either that the UPS battery had not been fully
charged, or had become discharged when the unit was disconnected from
AC power. EG&G stated that this would not happen if the machine were
plugged in so the battery could sustain a charge of at least 50
percent; the battery then would remain charged and the unit could
easily be started. The unit was subsequently retested and started
after being unplugged from AC power for 30 minutes. As EG&G's unit
was not defective in any way, and did not require repairing or
modifying, Heimann's argument is without merit.[5]
The protest is denied.
Comptroller General
of the United States
1. The raw technical score was "normalized" by multiplying it by 60
percent in order to attain the proper weighted score required under
the RFP. The price score was derived by assigning the maximum 40
points to the lowest price and proportionately fewer points to the
higher-priced proposal based on the amount of the price difference.
2. Heimann raises additional arguments which are equally without
merit, and do not warrant discussion.
3. Webster's Ninth New Collegiate Dictionary, 1983.
4. USMS states that EG&G's sample unit, model 215, is an upgraded
model of an earlier version of Linescan X-ray machines produced by
EG&G and used by USMS under a prior contract.
5. Heimann claims that it could have rectified its unit's "black
lines" problem had it been given the same extra time given EG&G to
correct its unit's start-up delay problem. However, as we found
above, unlike Heimann's unit, the problem with EG&G's unit did not
reflect any defect and EG&G's actions did not constitute repair or
modification. Moreover, Heimann's BAFO statement that it would
correct the problem only if mandatory indicated that it had no
intention to fix the problem in its BAFO; there is no indication that
the problem would have been addressed had more time been granted.