BNUMBER: B-274335
DATE: December 4, 1996
TITLE: Harry A. Stroh Associates, 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:Harry A. Stroh Associates, Inc.
File: B-274335
Date:December 4, 1996
Gilbert J. Ginsburg, Esq., and Raymond Fioravanti, Esq., Epstein,
Becker & Green, P.C., for the protester.
Donald E. Barnhill, Esq., and Joan K. Fiorino, Esq., East & Barnhill,
for Ace Maintenance & Services, Inc., an intervenor.
Thomas J. Duffy, Esq., and Terence Cleary, 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
Where a request for proposals sets forth the provisions of Federal
Acquisition Regulation sec. 52.215-16, Alternate II (FAC 90-31), advising
offerors of the agency's intent to award without conducting
discussions, contracting agency may properly do so, provided the
contracting officer reasonably determines that discussions are
unnecessary. Contracting agency reasonably determined to award to the
offeror which submitted the technically superior proposal at a fair
and reasonable price based on initial proposals, despite protester's
arguments that a possibility existed that its inferior technical
proposal could eventually become, through discussions, the best value
proposal.
DECISION
Harry A. Stroh Associates, Inc. (Stroh) protests the award of a
fixed-price contract, on the basis of initial proposals, to Ace
Maintenance & Services, Inc. under request for proposals (RFP) No.
DABT11-96-R-0001, issued by the Department of the Army for complete
housekeeping services at several hospitals and clinics. Stroh
contends that the agency unreasonably failed to conduct discussions by
making award on the basis of initial proposals.[1]
We deny the protest.
The RFP, issued on March 27, 1996, provided that award would be made
to the offeror whose proposal provided the best value to the
government considering the evaluation factors set forth in Section M
of the RFP. The RFP contemplated a base year performance period with
four 1-year option periods. The technical evaluation factors, in
descending order of importance, were as follows: (1) technical
management/organization; (2) staffing; (3) past
performance/experience; (4) business management; and (5)
technical and management transition. The RFP stated that price would
not be assigned a numerical score but would be considered of equal
importance to the combined technical evaluation factors. The RFP also
stated that "[a]ll efforts will be made to evaluate the proposals
without conducting discussions and requesting [b]est and [f]inal
offers."[2]
The agency received 13 proposals by June 5, 1996, the closing date for
receipt of initial proposals. The technical proposals were evaluated
by a source selection evaluation board (SSEB) with the following
results:[3]
Offeror Technical Price
Ace [Deleted] $21.6 million
Offeror A [Deleted] [Deleted]
Stroh [Deleted] [Delteted]
Offeror B [Deleted] [Deleted][4]
Based on the evaluation results, the SSEB made the following
recommendation to the source selection authority (SSA):
"[A] thorough evaluation of all the proposals revealed that Ace
Maintenance Services, Inc. had a technically superior proposal
and should be awarded the contract without discussions.
"[T]he board evaluated all other proposals as not acceptable for
inclusion in the competitive range. The board felt that
deficiencies noted were not correctable within the time frame for
contract award. Therefore, it was unanimously agreed upon by the
Board to not establish a competitive range but to rather make
contract award to the offeror who demonstrated the most complete
understanding of the Government scope of work and [Performance
Work Statement (PWS)] requirements."
The SSA reviewed the evaluation results. With respect to Ace, she
found, among other things, that the firm's procedures manual and
technical proposal were very well organized, structured following the
PWS and the Quality Assurance Surveillance Plan, and clearly
demonstrated a thorough understanding of the PWS and the concept of
total disinfection cleaning vital in hospital housekeeping. She also
determined that Ace's staffing matrix was clear and concise, and "very
close" to the IGE annual hours. In contrast, she determined that
Stroh's procedures manual conflicted with the PWS and that the firm's
Quality Control Program met minimum needs but did not demonstrate a
full understanding of the government's requirements. Further, she
found that Stroh's staffing matrix did not show hours adequate to meet
all requirements since certain "shift leaders" were not shown, and
assignments were not made to cover many areas of the hospital. She
concluded as follows:
"Based on the significant superiority of Ace's proposal and their
price being considered fair and reasonable, it is determined that
it is not to the government's advantage to conduct
discussions."[5]
The agency awarded the contract to Ace on August 16, 1996. This
protest followed.
Where, as here, an RFP sets forth the provisions of FAR sec. 52.215-16,
Alternate II (FAC 90-31), advising offerors of the agency's intent to
award without conducting discussions, the contracting agency may
properly do so, provided the contracting officer reasonably determines
that discussions are unnecessary. See FAR sec. 15.610(a)(3) (FAC 90-31);
see generally Lloyd-Lamont Design, Inc., B-270090.3, Feb. 13, 1996,
96-1 CPD para. 71.
Stroh, in its initial protest, argued, on information and belief, that
the agency could not properly have made an award to Ace based on
initial proposals because "Ace's proposal was found to have contained
deficiencies." Stroh offered no support or explanation for this
allegation. Stroh received the agency report which detailed the
evaluation of Ace's proposal, including the agency's specific
determination that Ace's technical proposal was significantly superior
to Stroh's (and other offerors') proposals.[6] After reviewing the
report, Stroh withdrew the allegation that Ace's proposal contained a
deficiency.
Stroh, in its comments, for the first time argues that the agency
could not properly have made an award based on initial proposals
because Ace's technical proposal received a rating of only
"satisfactory" in one subfactor and that under the source selection
plan (SSP), the agency was required to conduct discussions
notwithstanding the explicit terms of the RFP permitting award on the
basis of initial proposals.[7]
We find this argument to be untimely. To be considered timely,
protest issues must be raised not later than 10 days of when the basis
for protest was or should have been known. Bid Protest Regulations, sec.
21.2(a)(2), 61 Fed. Reg. 39039, 39043 (1996) (to be codified at 4
C.F.R. sec. 21.2(a)(2)). Accordingly, this protest ground will not be
considered. Stroh was aware of this basis of protest not later than
when it received the agency report, but first raised the matter in its
comments on the agency report which were filed more than 10 calendar
days after Stroh received the report.[8]
Finally, Stroh argues that it should have received the award based on
its initial proposal because its proposal was acceptable and lower in
price, or that the agency should have conducted discussions with
offerors. The RFP here specifically advised offerors that the
government intended to evaluate proposals and award a contract without
discussions and that each initial proposal should contain the
offeror's best terms. Based on the initial proposals received, the
agency determined that Ace's proposal represented the best value to
the government based on its technical superiority and reasonable
price. We do not think that the mere possibility that an inferior
initial proposal could eventually become, through discussions, the
best value proposal precludes the agency from awarding the contract to
the offeror with the clearly best value proposal based on initial
proposals. Concerning Stroh's argument that its proposal did not
contain the deficiencies found by the agency and was acceptable, Stroh
does not argue that its proposal (even absent these deficiencies) was
technically equal to Ace's proposal and does not contest the agency's
determination that Ace's proposal was clearly superior. Under these
circumstances, we have no basis to object to the agency's award
without discussions to Ace. Compare Information Spectrum, Inc.,
B-256609.3; B-256609.5, Sept. 1, 1994, 94-2 CPD para. 251 (discussions
were not necessary where the agency could reasonably determine which
offer represented the best value to the government) with The Jonathan
Corp.; Metro Mach. Corp., B-251698.3; B-251698.4, May 17, 1993, 93-2
CPD para. 174 (discussions were necessary where the agency could not
reasonably determine which proposal represented the best value to the
government, given the significant discrepancy between the agency's
cost realism estimate and the cost proposals received and the
closeness of the competition); see also TRW, Inc., B-254045.2, Jan.
10, 1994, 94-1 CPD para. 18.
The protest is denied.[9]
Comptroller General
of the United States
1. In its comments on the agency report, the protester withdrew
certain other issues initially raised in its original protest.
2. Section L of the RFP incorporated by reference Federal Acquisition
Regulation (FAR) sec. 52.215-16 (FAC 90-31), entitled "CONTRACT AWARD
(OCT 1995)--Alternate II," which provides that the government "intends
to evaluate proposals and award a contract without discussions. . . .
Therefore, each initial offer should contain the offeror's best terms
from a cost or price and technical standpoint."
3. The SSEB used a numeric scale of [deleted]. We show the results
for the four highest ranked offerors.
4. The independent government estimate (IGE) was [deleted]. Although
a fixed-price contract was
contemplated, the RFP did
require certain price
support data from offerors
to validate whether proposed
prices were consistent with
the technical proposals.
The agency conducted a price
analysis which included a
comparison of Ace's price to
the current contract as
adjusted for additional
requirements, general and
administrative rates, profit
rates and a comparison to
other offerors' prices and
the IGE.
5. The contracting officer states, contrary to arguments advanced by
the protester in its comments, that no competitive range determination
was made by the agency. The agency simply selected the best value
offeror based on initial proposals. The record supports this view.
6. Counsel for the protester also received Ace's entire technical and
price proposals under a protective order issued by our Office.
7. The SSP stated that a rating of "satisfactory" indicates that the
proposal "[m]eets minimum requirements of the solicitation; [deleted];
[a]ward made with detailed discussion and revised proposal."
[Deleted].
8. Stroh requested and received an extension for filing its comments
with our Office; this does not toll the requirement to timely file any
additional basis or bases of protest that are revealed by the agency
report. See Dial Page, Inc., B-256210,
May 16, 1994, 94-1 CPD para. 311. Additionally, we note that a
contracting agency's failure to follow an SSP does not provide a basis
for questioning the validity of an award selection because the SSP is
an internal agency instruction and, as such, does not give outside
parties any rights. See Johnson Controls World Servs., Inc., 72 Comp.
Gen. 91 (1993), 93-1 CPD para. 72.
9. Stroh also alleged that the award was not preceded by a
cost/technical tradeoff. While the contracting officer did not execute
any formal document denominated as a cost/technical tradeoff or
otherwise explicitly set forth a tradeoff determination, it is clear
from the record that in determining that discussions were not
necessary the contracting officer did determine that Ace's significant
technical superiority was worth its price, even though that price was
appropriately 10-percent higher than the protester's.