BNUMBER: B-274996; B-274996.2
DATE: January 16, 1997
TITLE: LTR Training Systems, Inc.
**********************************************************************
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:LTR Training Systems, Inc.
File: B-274996; B-274996.2
Date:January 16, 1997
Katheryn Bradley, Esq., Partnow Sharrock & Tindall, for the protester.
Jeff M. Sajdak, Esq., United States Customs Service, Department of the
Treasury, for the agency.
Linda C. Glass, Esq., and Paul I. Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that agency improperly determined that technical proposals
were equal where protester's proposal was allegedly clearly superior
is denied where record establishes that the agency reasonably
evaluated the respective technical proposals and that this evaluation
supports the source selection authority's determination that the
proposals were substantially equal technically. As a result, the
agency properly made the award on the basis of the lower proposed
price.
DECISION
LTR Training Systems, Inc. protests the award of a contract to
Emergency Response Institute (ERI) under request for proposals (RFP)
No. CS-I-96-010, issued by the United States Customs Service,
Department of the Treasury, for an aviation survival training course.
LTR, the incumbent contractor, alleges that the agency's evaluation of
proposals was unreasonable and inconsistent with the RFP criteria and
that the agency improperly made price the most important evaluation
factor for award, contrary to the RFP evaluation scheme.
We deny the protest.
The solicitation contemplated the award of a fixed-price, indefinite
delivery, indefinite quantity contract for the development of an
aviation survival training course and an aviation survival refresher
course. The RFP stated that technical merit would be more important
than price in the award decision, but noted that price would become
the deciding factor if proposals were found to be substantially equal.
The RFP further provided that among acceptable proposals with a
significant difference in technical merit, the importance or weight
given price would be substantially less than the importance or weight
given to technical factors in the award selection. The RFP also
provided that the contracting officer would determine whether
technical proposals were substantially equal or whether any
differences in the technical assessments were significant for purposes
of evaluating the overall merit of proposals.
The technical evaluation factors, listed in descending order of
importance, were technical approach, personnel resources, and
contractor past performance. Within the technical approach category,
section M identified five criteria of equal importance: (1) aviation
survival training course; (2) proposed course materials; (3) practical
exercise; (4) course completion standards; and (5) required equipment.
Within the personnel resources criterion, three subcriteria of equal
importance were listed: (1) instructor qualifications; (2) instructor
certifications; and (3) staffing plan. Within the contractor past
performance category, three criteria were identified: (1) quality of
product or service; (2) overall customer satisfaction; and (3) quality
certifications and awards. Quality of product or service was
significantly more important than the other two factors which were of
equal importance.
Six firms submitted initial proposals by the March 28, 1996, closing
date. The source selection evaluation team (SSET) consisted of four
evaluators, each of whom evaluated the proposals and assigned them a
numerical rating. The four ratings were then averaged and the
proposals categorized as unacceptable (U), susceptible to being made
acceptable (S), or acceptable (A). The initial evaluation results
were as follows:
Offeror Score Rating
LTR 95.3 A
ERI 69.0 S
Offeror #3 54.5 U
Offeror #4 51 U
Offeror #5 48.5 U
Offeror #6 43 U
The SSET found LTR's proposal to be acceptable as submitted, except
for an issue concerning the number of instructors to be provided
during the refresher training. ERI's proposal was determined to be
susceptible to being made acceptable, but the evaluation panel
concluded that ERI needed to address issues concerning its equipment,
instructors, and past performance. After considering proposed prices,
the contracting officer found that all six proposals were either
acceptable or capable of being made acceptable and included all
proposals in the competitive range.
Discussions were held with all offerors, and best and final offers
(BAFO) were requested. A new evaluation panel reviewed the BAFOs.
The new panel was advised of certain concerns the contract
administrator had with the conclusions of the first evaluation panel,
which she felt resulted from the failure of the panel to familiarize
itself with the statement of work (SOW). The contract administrator
cited the following examples of discrepancies in the evaluation of
initial proposals:
1. Two contractors proposed two instructors for the refresher
course when the SOW required three, but the contractors were not
penalized in this area;
2. One contractor, although not submitting certifications for
three of its instructors and providing no evidence these
instructors taught two out of the last five years as required by
the RFP, received high marks in the area; and
3. Only one instructor was required per class by the RFP as an
advanced first aid instructor or an Emergency Medical Technician
(EMT), but several evaluators said one instructor for a large
class was not enough.
After a technical review of the BAFOs by the new panel, four proposals
were excluded from the competitive range. LTR's BAFO, with technical
score of 87.34, and ERI's BAFO, with a technical score of 78.34, were
found to be acceptable, but because of unresolved issues with both,
the contracting officer decided to reopen discussions. After the
second round of discussions was conducted, LTR and ERI were again
requested to submit BAFOs. The contracting officer determined that
the second BAFOs clarified the unresolved issues for both offerors and
concluded that ERI's and LTR's proposals were substantially equal. As
a result, the contracting officer awarded the contract to ERI whose
proposed price was $339,912 less than LTR's.
LTR essentially argues that the agency failed to adequately address
the difference in technical merit between the two proposals and failed
to provide a rational reason for awarding the contract to a
technically inferior offeror.[1]
In a negotiated procurement, contracting officials have broad
discretion in determining the manner and extent to which they will
make use of technical and price evaluation results. TRW, Inc., 68
Comp. Gen. 511 (1989), 89-1 CPD para. 584. In reviewing an agency's
source selection decision, we will examine the evaluation supporting
that decision to ensure that the evaluation was reasonable and
consistent with the stated evaluation criteria. Contel Fed. Sys., 71
Comp. Gen. 11 (1991), 91-2 CPD para. 325. The source selection official,
however, is not bound by the recommendation of lower-level evaluators,
Verify, Inc., 71 Comp. Gen. 158 (1992), 92-1 CPD para. 107; accordingly,
in determining whether the award decision was reasonable and
consistent with the solicitation evaluation criteria, we review the
decision, not of lower-level evaluators, but of the source selection
authority. Id. Consequently, the appropriate question is simply
whether the contracting officer, who was the source selection
authority, had a reasonable basis to conclude that the two proposals
were substantially equal technically. We conclude that he did.
In a supplemental agency report, the contracting officer furnished a
declaration in which he elaborated upon the reasons for his source
selection decision.[2] Specifically, the contracting officer stated
that he reviewed both SSET reports and the responses received from
both offerors during discussions and conducted his own independent
review, which led him to conclude that despite the SSET scoring, the
two proposals were essentially equal.
While the protester complains that the contracting officer failed to
consider its clearly demonstrated technical superiority and
erroneously concluded that LTR and ERI were technically equal, the
record shows that the contracting officer reasonably determined that
both offerors, in their second BAFO, equally demonstrated the ability
to successfully fulfill the solicitation requirements. For example,
the RFP required the successful offeror to have personnel with
requisite medical certifications. Offerors could meet this
requirement by providing a currently certified advanced first aid
instructor or EMT with current certification. The contracting officer
concluded that ERI's plan to make three certified EMTs current within
3 months after contract award was acceptable and reasonably met this
requirement. LTR's proposed plan to provide Red Cross training to all
its instructors was also determined to be responsive to the RFP
medical requirement. The record shows that each offeror proposed to
take substantially comparable additional measures in order to qualify
its available proposed staff to adequately meet the medical
requirement, and that neither offeror's plan in this regard was
superior.
The contracting officer also determined that ERI and LTR both deserved
the maximum points under past performance. The contracting officer
concluded ERI had a demonstrated record of conforming to contract
requirements, goothat d standards of workmanship, and experience in
teaching survival or related courses [deleted]. The contracting
officer also concluded that LTR had demonstrated a history of
performing a very high quality of services on the same or similar
contracts and demonstrated compliance with the contracts, accuracy of
administrative functions and technical excellence. The record shows
that both proposals contained extensive documentation demonstrating a
history of high quality performance under similar contracts. While
the protester contends that the ERI contracts were not of the
magnitude or complexity of the current solicitation, the requirement
was to demonstrate experience in meeting contract requirements and in
teaching survival courses. ERI clearly documented that it had
performed several similar contracts and had received outstanding
recommendations for its performance, which the contracting officer
could reasonably view as warranting a maximum score.
Similarly, with respect to the second element of contractor past
performance, overall customer satisfaction, the contracting officer
again concluded that both LTR and ERI deserved the maximum points for
this evaluation factor. Our review shows that both offerors' records
of overall customer satisfaction were well-documented with letters and
memorandums which demonstrated the overall customer satisfaction on
the same or similar contracts, and that there was no basis to assess
one offeror as demonstrably different from the other in this regard.
Under the Quality Certifications and Awards evaluation factor,
offerors were to be evaluated on the demonstrated receipt of any
widely recognized quality of service awards or certificates of
achievement on similar survival training projects. Both ERI and LTR
were highly regarded in this area; however, the contracting officer
concluded that ERI provided more relevant information demonstrating
that it had been recognized for its effort in aviation safety and
survival education by two national organizations [deleted]. ERI also
received wide acclaim for its book, "Survival Sense for Pilots and
Passengers." While the protester disagrees and maintains that it
should have been rated superior in this area, the record simply does
not support the protester's position. In fact, as explained above,
ERI provided more relevant information in this area. LTR now argues
that it could have provided similar information if it had known what
the agency required. However, the RFP clearly described the
information needed, and having failed to provide all of the allegedly
available information in its proposal, LTR is not now entitled to
augment this information for consideration after the conclusion of the
evaluation.
The protester, in contesting the contracting officer's determination
that the two proposals were technically equal, focuses on the
differences in the scoring of the two evaluation panels; however, as
explained above, the contracting officer did not rely upon the points
of either panel, but independently assessed the technical merit of
each proposal in detail. This independent assessment provided a
reasonable basis, consistent with the RFP evaluation criteria, to find
that LTR's and ERI's proposals were substantially equal technically.
That being so, award was properly made on the basis of lower price,
notwithstanding that the evaluation criteria assigned price less
importance than technical considerations. Prospect Assocs. Ltd.,
B-249047, Oct. 20, 1992, 92-2 CPD para. 258.
The protest is denied.
Comptroller General
of the United States
1. In its comments to the agency report filed with our Office on
December 3, 1996, the protester raised two additional issues: that
the agency evaluated LTR's proposal based on improper criteria, and
that the scoring of LTR's proposal by the two technical evaluation
teams was inconsistent. We dismiss these protest allegations, which
were first raised in the protester's comments on the agency's report,
as untimely since they were filed more than 10 calendar days after LTR
should have known their basis. Bid Protest Regulations, section
21.2(a)(2), 61 Fed. Reg. 39039, 39043 (1996) (to be codified at 4
C.F.R. sec. 21.2(a)(2)). The protester learned of these bases for
protest, at the latest, when it received the agency report on November
15. While the protester was granted an extension of time for filing
its comments, this did not toll the time for timeliness purposes with
respect to raising additional issues.
2. LTR objects to our consideration of this declaration because it is
not contemporaneous with the selection decision. However, while we
generally give more weight to contemporaneous records than to those
prepared after the fact, we consider all documents of record,
including explanations for evaluations and selection decisions
furnished in response to a protest. Benchmark Sec., Inc.,
B-274655.2, Feb. 4, 1993, 93-1 CPD para. 133.