BNUMBER: B-272983.2
DATE: December 5, 1996
TITLE: Executive Court Reporters, Inc.
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Matter of:Executive Court Reporters, Inc.
File: B-272981; B-272982; B-272983; B-272981.2; B-272982.2;
B-272983.2
Date:December 5, 1996
Lawrence J. Sklute, Esq., for the protester.
Roy Goldberg, Esq., Galland, Kharasch, Morse & Garfinkle, for Ann
Riley & Associates, Ltd., and On the Record Reporting, Inc.,
intervenors.
Stanley Shaw, Esq., U.S. Tax Court, for the agency.
Christina Sklarew, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Federal Acquisition Regulation sec. 15.608(a)(2)(iii) (FAC 90-31)
does not require procuring agency to neutralize an experienced
offeror's performance record simply because the firm's experience is
not as directly relevant as another firm's experience.
2. Where protester advocates a cost evaluation method that is not
required by the solicitation and which would not reflect the agency's
anticipated requirement, protester has provided no legal basis to
object to the evaluation; further, where a recalculation of scores
using the evaluation method the protester is advocating results in no
change to the protester's competitive position, protester has shown no
competitive prejudice.
3. Where award is to be made on the basis of best value to the
government, and solicitation provides that technical merit will be
considered "significantly more important than cost," protester has no
basis to object to agency weighting cost as 9 percent of the total
score where protester's competitive position would not place it in
line for award even if cost and technical factors were weighted
equally.
DECISION
Executive Court Reporters protests the award of contracts for court
reporting services by the United States Tax Court under requests for
proposals (RFP)
Nos. 96-2048NE, 96-2049SE, and 96-2050NC. Executive alleges that the
evaluation of competing proposals was improperly performed for each of
these procurements and that the resulting award decisions were flawed.
We deny the protest.
On May 1, 1996, the Tax Court issued 116 solicitations for court
reporting contracts for various geographical regions, including ones
for the Northeast, North Central, and Southeast regions, which are at
issue here. The RFPs generally include identical provisions and
requirements. Each solicitation required electronic court reporting
and verbatim transcript services.
The RFPs listed three technical evaluation criteria, as follows, and
provided that combined, these were to be significantly more important
than cost in the award decision:
(a) Business Experience: Quantity and quality of experience
providing reporting and transcribing services to federal courts,
state courts, administrative agencies and private sector clients.
The company must demonstrate the financial stability to perform
all required tasks as set forth in this RFP.
(b) Past Performance: The company's background and references.
The quality of managing, staffing, and performing similar
reporting contracts with courts, administrative agencies, and
private sector clients.
(c) Technical Capability: Experience, qualifications and
training of managers, reporters, transcribers and other personnel
who would be assigned to this contract. The management plan for
this contract. Equipment inventory for this contract.
Demonstrate understanding of USTC requirements as set forth in
this RFP.
The RFP advised that although the overall cost proposed would be
considered less important than the combined technical evaluation
criteria, cost could become the deciding factor if all proposals were
ranked technically equal or nearly so. The RFP also stated that the
Tax Court intended to award the contract without holding discussions.
The Tax Court received between seven and nine proposals in response to
each of the three RFPs at issue here. Each proposal was reviewed and
point-scored by members of an evaluation committee after which the
committee prepared an evaluation report for each region. At the same
time, a senior contracts specialist prepared a cost evaluation for
each offer. The contracting officer reviewed these evaluation
materials and added the committee's average technical point score for
each proposal to that proposal's cost score. The contracting officer
then ranked the offers and made his award determination based on the
rankings. The ranking for the three regions was as follows:
Southeast Region
Offeror Ave. Tech. Score Cost Score Total Score
On the Record 98 6.3 104.3
(Offeror 2) 93 7.8 100.8
(Offeror 3) 85 10.0 95.0
Executive 85 7.2 92.2
North Central Region
Ann Riley 98 6.2 104.2
(Offeror 2) 93 7.8 100.8
(Offeror 3) 85 10.0 95.0
Executive 85 7.9 92.9
Northeast Region
Ann Riley 98 6.2 104.2
(Offeror 2) 93 7.8 100.8
(Offeror 3) 92 6.7 98.7
(Offeror 4) 85 10.0 95.0
(Offeror 5) 90 4.7 94.7
Executive 83 8.3 91.3
A Tax Court Reporting Advisory Committee reviewed the evaluation
committee's conclusions for each of the regions and concurred with the
award decisions of the contracting officer. Accordingly, Ann Riley
received the awards for the Northeast and North Central regions while
On the Record received the award for the Southeast region.
Following notice of the awards, Executive filed a protest in Our
office based on general allegations of evaluation and source selection
improprieties. The protester then requested and was granted a
debriefing, after which it filed an amended protest.[1] Because of
the timely filing of Executive's initial protest, performance has been
suspended under the awarded contracts, pending resolution of these
protests.
Executive's amended protest challenges the three award decisions on
identical grounds. The protester alleges that the technical
evaluations were improper because the agency downgraded Executive's
proposal based on its lack of experience with Federal or state courts
under both the experience and past performance evaluation factors.
The protester believes that the evaluation violated the Federal
Acquisition Regulation (FAR), which requires that firms lacking a
relevant past performance history be given a neutral evaluation for
past performance.[2] Executive later protested that the agency had
deviated from the weights that were to be assigned to various factors
and subfactors in the technical evaluation, and that the selection of
the awardee as representing the best value to the government was
improper because it was based on an improper evaluation of costs.
Executive argues that the agency was required to evaluate past
performance in a manner consistent with the applicable provisions of
the FAR. FAR sec. 15.608(a) (2)(ii) (FAC 90-31) provides that:
"Where past performance is to be evaluated, the solicitation
shall afford offerors the opportunity to identify Federal, state
and local government, and private contracts performed by the
offerors that were similar in nature to the contract being
evaluated, so that the Government may verify the offerors' past
performance on these contracts . . . . The source and type of
past performance information to be included in the evaluation is
within the broad discretion of agency acquisition officials and
should be tailored to the circumstances of each acquisition."
FAR sec. 15.608(a)(2)(iii), which Executive cites, provides that "[f]irms
lacking relevant past performance history shall receive a neutral
evaluation for past performance."
Executive argues that the agency equated "experience" with "past
performance" and, by citing the protester's lack of experience in
federal and state courts as a weakness in its technical evaluation,
failed to neutralize Executive's lack of relevant past performance
history as required by the FAR.
We disagree. The evaluation record shows that experience and past
performance were, in fact, separately considered and separately
scored, consistent with the evaluation terms of the RFP. In this
regard, under "business experience," the evaluation score sheet lists
"quantity and quality of prior experience" and "contractor's financial
stability," and describes the standards under which point scores would
be assigned. For example, to earn the maximum points available for
the experience subfactor, the offeror should have "had Federal Courts
and Agencies along with private sector reporting contracts which have
been fulfilled to clients' satisfaction"; for the next highest
available score, the offeror should have "had only Federal Agencies
and private sector reporting contracts which have been fulfilled to
clients' satisfaction." Under Past Performance, on the other hand,
the score sheet lists "Contractor's references" and "Quality of
managers, staffing and performance of similar contracts." Thus,
while the factors of "past performance" and "experience" are
necessarily related, the evaluation record shows that differing
criteria were considered when each of these factors was scored.
Pursuant to this scoring scheme, Executive's proposal received fewer
than the maximum number of points available under "business
experience," reflecting the fact that although the firm has extensive
experience providing court reporting services before administrative
agencies, its experience does not include contracts for reporting in
federal courts. Under "past performance," Executive also received
slightly fewer points than the highest available score, based on the
quality of the firm's references (which included a "mixed satisfied
and very satisfied" reference) and the level of successful performance
that was demonstrated under its other contracts (which took into
consideration the level of similarity in the type of contract that
Executive had performed). While the protester argues at length that
contemporary evaluation sheets show a number of points were deducted
from Executive's score based on its lack of experience in federal
courts and concludes that this resulted in an improperly low score for
past performance, the "experience" evaluation to which the protester
refers is separate from the "past performance" evaluation. In short,
the record does not support Executive's allegation.
Moreover, while Executive argues that it should not have lost
evaluation points since "a fundamental purpose of FAR sec.
15.608(a)(2)(iii) is to allow firms that lack past performance history
to fairly compete," Executive is not a first-time offeror or a new
firm lacking relevant past performance history. In its proposal,
Executive lists more than 15 years of experience in the electronic
court reporting business. The relevant experience and references
included in Executive's proposal earned it respectable scores under
both the experience and the past performance evaluation factors.
Since Executive had relevant past performance history, the FAR
provision cited by Executive simply did not apply.
Executive also alleges that the agency deviated from the RFP's
evaluation scheme "that required equal treatment of the factors and
subfactors." The RFP listed the three evaluation criteria--business
experience, past performance, and technical capability--and stated
that they were not listed in any order of importance. The protester
asserts that the three factors should therefore have been given equal
weight in the evaluation. Since the three technical evaluation
criteria combined were scored on a 100-point scale, Executive reasons
that each criterion should have been worth 33-1/3 points. Since the
agency allotted 35 points to each of the first two criteria and 30
points to the last one, Executive contends that "the entire evaluation
scheme was flawed."
While it is true that offerors should assume, in the absence of
contrary information in the solicitation, that stated evaluation
factors are of substantially equal importance, see North-East Imaging,
Inc., B-256281, June 1, 1994, 94-1 CPD para. 332, it is also true that
competitive prejudice is an essential element of a viable protest.
Lithos Restoration Ltd., 71 Comp. Gen. 367 (1992), 92-1 CPD para. 379.
Where no prejudice is shown or is otherwise evident, our Office will
not disturb an award, even if some technical deficiency in the award
process arguably may have occurred. Merrick Eng'g, Inc., B-238706.3,
Aug. 16, 1990, 90-2 CPD para. 130. In order to show prejudice, Executive
would have to show that the slightly unequal weighting of the three
factors in the evaluation had a material effect on Executive's
proposals' score and resulting competitive position. However, the
impact of this deviation on the scores at issue was de minimus. A
comparison of the evaluation scores as they were calculated by the
agency and as they would be calculated if equal weight were given to
the three criteria demonstrates that Executive's competitive position
would not have changed and, thus, we find no harm resulting in
competitive prejudice in this instance.[3]
Executive also alleges that the agency failed to weight the
"subfactors" equally, and that this distorted the scores. However,
there were no subfactors listed in the evaluation scheme that was
established in the RFP. The RFP listed the technical evaluation
criteria, followed by a few sentences generally describing what each
criterion included. The "subfactors" to which Executive now refers
first appeared on the evaluation score sheets as guidelines for
awarding points for the three technical evaluation criteria. In our
view, these served much as an agency's source selection plan would,
and are part of the internal process of the evaluation; these
internal agency guidelines do not give outside parties any rights.
Quality Sys., Inc., B-235344; B-235344.2, Aug. 31, 1989, 89-2 CPD para.
197. Rather, the agency is required to follow the evaluation scheme
set forth in the RFP for the information of potential offerors, and to
conduct its evaluation in a manner that will reach a rational result.
Id. Here, it is clear from the record that Executive's proposal was
reasonably evaluated pursuant to the evaluation factors set forth in
the RFP. While Executive argues that it assumed that the factors and
subfactors would be treated equally and prepared its proposal
accordingly, in fact, none of the offerors had any knowledge of the
"subfactors" and therefore, no expectation that they would be weighted
in any particular way.
Similarly, Executive alleges that the agency deviated from the RFP's
evaluation scheme for evaluating costs. The protester contends that
the RFP required that the agency treat the transcripts' cost per page
for standard, expedited, and daily transcripts on an equal basis, yet
the agency estimated its requirements as
95 percent standard delivery, 4 percent expedited delivery, and 1
percent daily delivery transcripts when it evaluated proposed prices.
We find no requirement in the RFP for the evaluation method Executive
cites. In section M, the RFP establishes the evaluation factors that
will be considered for award. It lists the technical evaluation
criteria, as discussed above, and cost. For cost, it states only that
"[a]lthough the overall cost proposed is less important than the
combined technical evaluation criteria, it could be the deciding
factor if all proposals are ranked technically equal or nearly so."
There is simply no provision describing how the offered prices for the
various types of transcripts will be evaluated.[4] The RFP disclosed
the number of transcript pages that had been ordered in the previous 2
years, as well as the current contract year per-page rates for each of
the delivery types, but did not include any historical information
regarding the amounts of pages that were ordered for each of the
different delivery categories. Executive submitted its unit prices
for the three types of delivery and did not question the RFP's lack of
information regarding estimated quantities, either before the closing
date for receipt of proposals or in its protest. Rather, Executive
bases its objections on the method of evaluation that the agency used,
notwithstanding that the RFP did not provide for the method of
evaluation that the protester now advocates. Executive has not argued
(much less shown) that the 95/4/1 allotment does not accurately
reflect the agency's anticipated requirements. Moreover, Executive
has not provided any calculations in support of its arguments or
otherwise demonstrated that its competitive position would have
changed meaningfully under the evaluation method it is suggesting.
Thus, even if we accepted Executive's contentions regarding the method
of cost evaluation here, we could not conclude that it would then be
in line for award.
Executive also argues that the agency's best value determination was
improper because proposed costs were not given sufficient weight in
relation to technical merit. The protester points out that the RFP
established that the technical evaluation criteria would be considered
"significantly more important than cost," and argues that instead,
technical merit was treated as "overwhelmingly more important" than
cost. Executive contends that cost scores improperly accounted for
only 9 percent of the overall point score.[5] Even assuming,
arguendo, that a legal distinction could be made between the terms
"significantly" and "overwhelmingly," we point out that, again,
Executive fails to discuss with any particularity how this alleged
impropriety prejudiced its competitive position. While Executive has
provided some calculations in its final submission through which it
purports to demonstrate that weighting costs at 27 percent and
technical merit at 73 percent of the total score would place its total
score within 1 percent of the awardee's score for the Northeast
region, Executive's argument completely ignores the fact that such
recalculation would place its score 20 points below the offeror whose
proposal was in second place under the original evaluation. Overall,
such recalculation would worsen Executive's competitive position,
placing it in fifth place based on total scores. Given the relative
proximity of the price scores and the disparity of the technical
scores (which scoring we have found to be consistent with the RFP's
terms, as discussed above), Executive's overall score would still not
place it in line for award even if cost and technical factors were
each weighted at 50 percent--a formula which clearly falls short of
weighting the technical factor "significantly more important than
cost,"[6] as the RFP required. Furthermore, as the agency report
points out, cost would have become more significant and could even
have been determinative if competing proposals had been rated
technically equal, or nearly so, under the RFP's terms.
Executive argues that the evaluation was unequal and lists three
instances in which the protester believes its own proposal was held to
a higher standard than was the awardee's proposal. We have reviewed
the proposals and the evaluation record for each of the three areas at
issue, and find no merit to these allegations . For example,
Executive complains that the agency should have downgraded the
awardees' proposals for allegedly failing to describe the training
methods they would use for continuing employees since the requirement
was "strictly applied" to Executive's proposals. However, we find
that, contrary to Executive's arguments, the awardees' proposals
described the methods each would use to keep employees current with
new technology, including the use of workshops, manuals, frequent
feedback, pairing up with senior staff, and daily meetings.
Executive's own proposal, on the other hand, simply asserts that its
employees "are already highly trained," and that it "do[es] not
foresee any problems with training." While it appears to us that
Executive, in fact, submitted the weaker proposal in this area, it was
scored slightly higher or equal with the awardee's proposals for this
factor. While not discussed here, we reach the same conclusion
following our review of the other two instances in which Executive
alleges unequal evaluation treatment.
The protest is denied.
Comptroller General
of the United States
1. This protest is not subject to the revised timeliness rules of our
Bid Protest Regulations published in the Federal Register on July 26,
1996 and applicable to protests filed on or after August 8, 1996, 61
Fed. Reg. 39039, 39047 (to be codified at 4 C.F.R. Part 21) because it
was filed on August 2. Therefore, our current requirement that a
protester not file its protest in this circumstance until after the
debriefing does not apply.
2. Executive's amended protest also included allegations involving the
evaluation of its compliance with an equipment requirement, a training
method requirement, and the agency's "best value" determination;
however, these three protest grounds were expressly withdrawn in
Executive's comments on the agency report.
3. Although Executive has not provided any figures to support its
allegation that the impact of the deviation had a significant effect,
we have recalculated the scores. We recalculated average scores for
the three technical criteria by averaging the individual scores on the
evaluators' scoresheets and then weighted these scores equally by
multiplying the 35-point scale scores by 35/33.33 and the 30-point
scale scores by 30/33.33. These calculations did not alter
Executive's competitive position.
4. Although indefinite quantity contracts should reveal the estimated
quantities that will be needed, in order to permit offerors to prepare
their offers intelligently and to avoid unbalanced pricing, see Price
Bros. Co., B-228524, Feb. 22, 1988, 88-1 CPD para. 180, the agency's
failure to reveal its estimated quantities or the relative weight that
each of the different prices would have in the cost evaluation was
never protested. Executive must have known, when it completed its
proposal, that the RFP did not include estimated quantities of the
various types of transcripts, but it did not protest this apparent
impropriety in the solicitation. Any such objection at this point
would be untimely. 4 C.F.R. sec. 21.2(a)(1); Engelhard Corp., B-237824,
Mar. 23, 1990, 90-1 CPD para. 324.
5. While we have, as the protester asserts, questioned in certain
circumstances whether an evaluation formula allotting only a small
portion of the total evaluation score to price is consistent with the
requirement under the Competition in Contracting Act that price be one
of the significant factors in the evaluation of proposals, see, e.g.,
Video Ventures, Inc., B-240016, Oct. 19, 1990, 90-2 CPD para. 317, we have
not found such formula improper per se. Here, we need not decide the
minimum weight that should have been given to cost, since the
evaluation formula resulted in no competitive prejudice to the
protester, as discussed in the decision.
6. Although the Tax Court states in a supplemental filing that its
calculations show that in one region that it uses as an example, "the
protester would prevail only if the Court were to change the value
assigned to cost relative to technical factors so that more than 40
percent of the total score is attributable to cost," our calculations
show that, in fact, the protester would not prevail even if cost were
valued at 50 percent of the total score. Increasing the cost score
for each offeror by a factor of 10 (to convert the 10-point cost score
to a 100-point score) and adding it to the technical score (which is
already on a 100-point scale), Executive's position in the Northeast
region would only change from fourth position to third.