BNUMBER: B-275962.2
DATE: May 30, 1997
TITLE: United Terex, Inc., B-275962.2, May 30, 1997
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Matter of:United Terex, Inc.
File: B-275962.2
Date:May 30, 1997
Robert G. Fryling, Esq., and Edward J. Hoffman, Esq., Blank Rome
Comisky & McCauley, for the protester.
Karl Dix, Jr., Esq., Smith, Currie & Hancock LLP, for Advanced
Aerospace Materials Corporation, an intervenor.
Marc Shepler, Esq., Defense Logistics Agency, for the agency.
Robert C. Arsenoff, Esq., Glenn Wolcott, Esq., and Paul I. Lieberman,
Esq., Office of the General Counsel, GAO, participated in the
preparation of the decision.
DIGEST
Protest challenging the evaluation of proposals is denied where
evaluation was reasonable and in accordance with the evaluation
factors set forth in the solicitation.
DECISION
United Terex, Inc. (UTI) protests the award of a contract to Advanced
Aerospace Materials Corporation (AAMC) under request for proposals
(RFP) No. SPO740-96-R-1702, issued by the Defense Logistics Agency
(DLA) for aircraft towbars fabricated from tubing. UTI alleges that
the proposals were misevaluated.
We deny the protest.
The RFP was issued on July 29, 1996, for 375 towbars identified as
National Stock Number (NSN) 1730-01-101-9061 in Federal Supply Class
(FSC) 1730. It was amended once. As amended, the RFP notified
offerors that DLA was seeking delivery within 350 days but would
evaluate offers of different delivery schedules in accordance with an
FSC-specific Delivery Evaluation Factor (DEF). Offerors were advised
that the offered price would be adjusted by a formula using the DEF so
that shorter-than-required delivery schedules would result in an
evaluated price which was lower than the offered price while
longer-than-required schedules would result in an evaluated price
higher than the offered price. Proposed phased deliveries were to be
evaluated using a weighted average.
In addition to the DEF adjustment, the RFP advised offerors that award
would be made on the basis of the best value to the government as
determined in accordance with an Automated Best Value Model (ABVM), as
outlined in relevant part in clause M23 as follows:
"(a) Award against this solicitation shall be made based on a
comparative assessment of offerors' prices, quoted delivery, and
past performance (quality and delivery). . . .
"(b) Past Performance.
(1) On contracts with the Defense Construction Supply Center,
each offeror will be evaluated on the basis of its past quality
performance over the last 12 month period (excluding the most
recent month) and delivery performance over the last 12 calendar
months (excluding the most recent 2 month period). The
Government will use the following performance indicators:
Delivery Delinquencies
-Number
-Severity
Quality
- Product nonconformances
- Packaging nonconformances
- Laboratory tests
. . . . .
(3) An offeror with no performance history in any FSC procured
by the Center will be identified as a new offeror, and will not
be scored on performance. . . . [T]he desirability of expanding
the supplier base and possible competition enhancement in future
procurements will be considered in the source selection decision
when new offerors are present.
. . . . .
(5) By accessing the DCSC Electronic Bid Board (EBB), each
offeror will be provided the opportunity to review its negative
historical performance data:
(i) For instructions on accessing the EBB and for a point of
contact (POC) concerning questions/requests for information on
data access, refer to DCSC letter, 06 May 94, subject: The DCSC
Electronic Bid Board, which was mailed to all DCSC vendors. For
technical assistance or questions on the EBB, contact: [contact
person list with phone numbers].
(ii) For questions on negative historical performance data,
contact the DCSC ABVM Administrator: [contact office address
with phone numbers].
(6) When a discrepancy between offeror and Government data
occurs, the Government will make every effort to resolve the
discrepancy expeditiously. However, the Government may make an
award decision despite the existence of an unresolved challenge.
The Government is the final authority for resolution of disputed
data and its use in the source selection process.
. . . . .
"(e) General Basis for Award. Award will be made to the offeror
whose proposal conforms to the terms and conditions of the
solicitation and which represents the best value to the
Government. In making the best value determination, the
Government will make a comparative assessment of the proposals.
Where the offeror with the best performance history has not also
offered the lowest price, the Government will determine the
appropriate trade-off of price for past performance. The
following considerations may affect the trade-off determination:
. . .
- Industrial base
- Benefits from obtaining new sources
- Difference in price."
AAMC proposed a unit price of $459.00 and offered 180-day delivery.
AAMC's total offered price was $172,125.00. UTI proposed a unit price
of $554.00 and offered the first 60 items delivered in 70 days and the
remaining 315 items delivered within 110 days of award. UTI's total
offered price was $207,750.00. Thus, before the application of the
DEF, AAMC was the low offeror by $35,625.00--the actual savings to DLA
if AAMC were to receive the entire award.
AAMC, which had not previously delivered FSC 1730 items, did not have
an ABVM score for past performance. The agency calculated UTI's ABVM
score at 85.5 (the procurement center average being 80). The
contracting officer's initial DEF calculation resulted in UTI's being
found the low offeror by a margin of $857.54. The contracting officer
determined that UTI had the low evaluated price, offered faster
delivery, and represented a lesser performance risk than AAMC, which
was unscored under the ABVM for FSC 1730. Accordingly, award was made
to UTI for all 375 towbars.
On January 13, 1997, AAMC protested the award decision to this Office.
In preparing to respond to that protest, DLA discovered that it had
improperly calculated UTI's evaluated price because it had not used an
average weighted delivery as called for in the RFP when phased
deliveries were proposed. The corrected evaluated price for UTI
resulted in a determination that AAMC was the low evaluated offeror by
$7,951.42. The agency concluded that its best value determination,
which had in part been predicated on UTI's submitting the low
evaluated price, had been compromised.
DLA reports that it then conducted a reevaluation. In that
reevaluation, AAMC was credited with a lower evaluated price; UTI was
credited with a better delivery schedule. Thus, the discriminating
factor became past performance which was evaluated as follows:
"1. ABVM scores--As a new provider AAMC did not have an ABVM
score for past performance in FSC 1730. UTI had an ABVM past
performance score of 85.5.
"2. Volume of business--UTI had successfully completed one
contract for 35 units, NSN 1730-01-101-9061 in October 1996,
while AAMC was a new provider for NSN 1730-01-101-9061.
"3. Measure of Confidence--The volume of business on which UTI's
ABVM score was based as a measure of confidence in the score as
an indication of performance risk. In this case UTI's ABVM score
is based on one contract line item for the delivery of 35 NSN
1730-01-101-9061.
"4. Expansion of Supplier Base--Because AAMC is a new offeror the
contracting officer considered the desirability of expanding the
supplier base for future procurements.
"5. Competition Enhancement--Because AAMC is a new offeror the
contracting officer considered possible competition enhancements
to be gained from award to a new source."
Based on the reevaluation, the contracting officer "determined that
AAMC's lower offered price represented the best value to the
government" and concluded that
AAMC should be "put in line" for award contingent upon a successful
responsibility check. AAMC agreed to accept an award contingent upon
the successful check for 315 items, allowing UTI to deliver 60 items.
Based on this corrective action agreement, AAMC withdrew its protest,
whereupon UTI filed this protest.
The protester's objections to the reevaluation fall into three
categories: (1) the agency's newfound reliance on expansion of the
supplier base contradicts the agency's earlier position and is nothing
more than an "after-the-fact" rationalization to support the
settlement with AAMC; (2) the ABVM analysis is incorrect in limiting
consideration to FSC 1730; and (3) the agency improperly calculated
UTI's ABVM score as 85.5.
Our Office will not question an agency's evaluation of proposals
unless the agency deviated from the solicitation criteria or the
evaluation was otherwise unreasonable. The fact that a protester
disagrees with the agency's judgment does not establish that the
evaluation was unreasonable. Porter/Novelli, B-258831, Feb. 21, 1995,
95-1 CPD para. 101 at 4. While documents prepared in response to a protest
reflecting an evaluation or source selection rationale may be accorded
less weight than contemporaneous documentation, we consider the entire
record including statements and arguments made in response to a
protest in reviewing an agency's evaluation and source selection.
Solid Waste Integrated Sys. Corp., B-258544, Jan. 17, 1995, 95-1 CPD para.
23 at 5 n.4.
Supplier Base
Pointing to the earlier evaluation record and the post-protest advice
of one agency staff member, UTI notes that the subject of improving
the supplier base was never considered by the agency until its
rationale for the award to AAMC was articulated in the agency report,
or if it was considered, the agency believed it to be of little or no
importance in comparison to the advantages to be gained by an award to
UTI--the only successful supplier of the towbars in question. UTI
urges that we not consider the agency's rationale that an award to
AAMC would enhance the supplier base.
Enhancement of the supplier base must, by the terms of the RFP, be
considered in the evaluation if there are new offerors. The agency in
its reevaluation did nothing more than consider the factor as
required. This is in strict accord with the evaluation criteria and
therefore unobjectionable. The fact that a contracting officer might
not have considered the factor in an earlier evaluation, or may have
considered it differently, or may disagree with an agency staff
member, does not render the reevaluation unreasonable.
Limiting ABVM to FSC 1730
UTI objects to the agency's limiting the ABVM analysis to UTI's record
of supplying FSC 1730 items, maintaining that it has provided
virtually identical items under another FSC. The applicable ABVM
clause in the RFP states at paragraph (b)(2):
"An offeror's past performance is an indicator of performance
risk and will be scored on the basis of past performance in the
same Federal Supply Class as the supplies being solicited [i.e.,
FSC 1730]."
Accordingly, the limitation to which UTI now objects is apparent from
the face of the solicitation; this aspect of the protest is untimely
because our Bid Protest Regulations require that such protests be
filed prior to the time set for the receipt of initial proposals. 4
C.F.R. sec. 21.2(a)(1) (1997).
Incorrect ABVM Score
In its comments on the agency report, UTI for the first time disputes
its ABVM score, contained on the EBB as of the time of the first
evaluation, which was calculated by the agency to be 85.5 by reference
to historical data. UTI asserts that the score should be 100.
The RFP explicitly informed offerors that the EBB was established to
provide offerors with an opportunity to review historical performance
data and provided a way to expeditiously resolve perceived
discrepancies. Offerors were also cautioned that awards could be made
notwithstanding a pending dispute in this regard. This solicitation
scheme paralleled advice given to offerors in writing at the
initiation of the ABVM program in 1994 and 1995, which encouraged
regular review of the EBB and timely challenges if necessary. The
overall purpose of the program is obvious--to give offerors a
continuing and timely opportunity to access and seek amendment of the
performance records that the agency announced it would rely on in
future procurements unless discrepancies were brought to its
attention.
In this case, UTI waited until its comments on the agency
report--filed well after the proposed award to AAMC--to challenge its
ABVM score. Since the protester had ample opportunity to access the
disputed information from the EBB and did not do so, the protester
failed to diligently pursue the information on which it bases the
challenge to its score. USA Elecs., B-275389, Feb. 14, 1997, 97-1 CPD para.
75 at 3 n.4. Although UTI states that it had no reason to check the
EBB for scores it calculated to be perfect, this line of argument is
without merit since it is essentially based on the premise that an
offeror is free to ignore the EBB system established by the agency.
On the contrary, the reason offerors are advised that ABVM scores will
be used in proposal evaluations is to encourage them to regularly
access their performance information when participating in a
procurement to ensure that their data is accurate or can be amended in
a timely manner.
The protest is denied.
Comptroller General
of the United States