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