BNUMBER: B-276457
DATE: June 16, 1997
TITLE: International Code Services, Inc., B-276457, June 16, 1997
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Matter of:International Code Services, Inc.
File: B-276457
Date:June 16, 1997
Richard C. Walters, Esq., Kevin P. Mullen, Esq., and Stanley R. Soya,
Esq., Piper & Marbury, for the protester.
David R. Johnson, Esq., Kathleen C. Little, Esq., and Dennis E.
Wiessner, Esq., McDermott, Will & Emery, for Symtron Systems, Inc., an
intervenor.
Thomas T. Basil, Esq., Department of the Navy, for the agency.
Adam Vodraska, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that multiple awards should be made because this would result
in a lower price to the government is denied where the solicitation
indicated that a single award in the aggregate would be made.
DECISION
International Code Services, Inc. (ICS) protests the award of a
contract to Symtron Systems, Inc., by the Department of the Navy,
Naval Air Warfare Center, Training Systems Division, Orlando, Florida,
under request for proposals (RFP) No. N61339-97-R-0006 for fire
fighting training systems. ICS asserts that the Navy should have made
multiple awards under the RFP with ICS receiving an award for that
portion of the requirement on which its price was low.
We deny the protest.
The RFP, issued on November 19, 1996, contemplated the award of a
firm, fixed-price contract for commercially available, propane-fueled,
fire fighting training systems for use at various Army installations
in the following configurations: 2-floor and 3-floor modular/fixed
structural trainers, mobile structural trainers, and mobile aircraft
rescue/fire fighting trainers. These computer-controlled systems
safely replicate flames, heat, and reduced visibility (using non-toxic
smoke) during fire fighting training exercises. Offers were to
include fabrication and delivery of the trainers, as well as set-up,
testing, training, documentation, and warranty coverage.
The RFP's price schedule consisted of three different lots. Lot I,
the base quantity, requested line item prices for a 3-floor
modular/fixed structural trainer for
Ft. Monmouth, New Jersey; a 2-floor modular/fixed structural trainer
for Ft. Belvoir, Virginia; a 2-floor modular/fixed structural trainer
for Ft. Lewis, Washington; a mobile structural trainer for Ft. Rucker,
Alabama; a mobile aircraft trainer for
Ft. Belvoir; and a mobile aircraft trainer for Ft. Rucker. Lot II
consisted of optional line items for extended warranties for the Lot I
trainers by site, i.e., extended warranties for Ft. Monmouth, Ft.
Belvoir, Ft. Lewis, and Ft. Rucker. Lot III consisted of options for
four 3-floor modular/fixed structural trainers, four 2-floor
modular/fixed structural trainers, nine mobile aircraft trainers, and
12 mobile structural trainers. Besides requesting unit and extended
prices for the different line items, the price schedule requested that
offerors supply total prices by lot.
The RFP listed the following evaluation factors:
1. System Operations
2. System Performance
3. Logistics
4. Past performance--assessed for risk
5. Price (affordability)
The system operations, system performance, and price factors were
equally important; the logistics factor was more important than the
past performance factor, but less important than the system operations
factor. Although all evaluation factors other than price, when
combined, were significantly more important than price, the
solicitation provided that as competing proposals were determined to
be substantially equal in technical merit, past performance and total
evaluated price could become paramount.
The RFP required offerors to propose prices for all requirements and
stated that prices were to be evaluated for the basic system
requirements (Lot I) and the two option quantities (Lot II and Lot
III) by adding the total for all priced line items in Lots I and II
together with the estimated quantities priced in Lot III. Offerors
were also required to complete an "Affordability Pricing Worksheet,"
which essentially replicated the price schedule, but which also asked
for a total proposed price based on the total Lot I, Lot II, and Lot
III prices. This total proposed price was to be evaluated for
completeness and balance and the total evaluated price was to be
assessed for reasonableness. The solicitation stated that award would
be made to the offeror whose acceptable proposal was most advantageous
to the government, technical merit, past performance, and evaluated
price considered.
The RFP included the clause found at Federal Acquisition Regulation
(FAR) sec. 52.212-1, Instructions To Offerors--Commercial Items (OCT
1995), which provides, in relevant part:
"(h) Multiple awards. The Government may accept any item or
group of items of an offer, unless the offeror qualifies the
offer by specific limitations. Unless otherwise provided in the
Schedule, offers may not be submitted for quantities less than
those specified. The Government reserves the right to make an
award on any item for a quantity less than the quantity offered,
at the unit prices offered, unless the offeror specifies
otherwise in the offer."
The Navy received proposals from two offerors--ICS and Symtron.[1]
The Navy determined both proposals to be acceptable; placed them in
the competitive range; conducted discussions; and requested best and
final offers (BAFO), including the offerors' best price terms.
Following its evaluation of the discussion responses and BAFOs, the
Navy rated Symtron's proposal higher overall than ICS' for the
technical evaluation factors, but determined "after comparing both
proposals together and taking into consideration the different
benefits and disadvantages of all the required trainer configurations
(as a whole)" that "paying an extra premium price [for technical
merit] would not be justified." On past performance, the Navy rated
both Symtron and ICS as acceptable (low risk). Symtron's total
evaluated price for the basic contract and the option quantities was
slightly lower than ICS' total price, although ICS' prices were lower
for some of the line items. The Navy regarded the total evaluated
prices from both offerors as reasonable. Based on the foregoing, the
Navy made award to Symtron, determining its offer to be most
advantageous to the government, technical factors and price
considered.
ICS alleges that the Navy considered its proposal as essentially
technically equal to Symtron's because the Navy concluded that there
were no discriminating characteristics between the two proposals that
would have merited the payment of a price premium. ICS thus asserts
that the determining factor for award should have been price and that
because the RFP reserves the right to the agency to make multiple
awards, ICS was entitled to award of that portion of the total RFP
quantity which would result in the lowest cost to the government. In
this regard, ICS offered lower prices in Lot I for the 3-floor
modular/fixed structural trainer for
Ft. Monmouth and the 2-floor modular/fixed structural trainers for Ft.
Belvoir and Ft. Lewis, as well as for these configurations of trainers
in Lot III.[2] ICS contends that the Navy could realize almost $2.9
million in savings over Symtron's aggregate $15,394,568 evaluated
price if the Navy awarded ICS the line items for which its price was
low, and that if ICS had realized an aggregate award would be made it
would have submitted a lower overall price.
The basic premise of ICS' protest is flawed since the RFP basically
contemplated one award in the aggregate rather than multiple
awards.[3] Other than the clause reserving the government's right to
make multiple awards, every relevant statement in the RFP suggested
that a single award would be made, e.g., the term "award" is used in
the singular. See Knoxville Glove Co., B-251598, Apr. 21, 1993, 93-1
CPD para. 339 at 4. More significantly, the RFP evaluation methodology
addressed proposals in the aggregate and did not provide for proposal
evaluation on a separate line item or lot basis, so as to indicate
that multiple awards were contemplated. Specifically, under the terms
of the solicitation's evaluation scheme, the offerors' total prices
for all of the line items, rather than prices for individual line
items, were to be considered in the award selection and price was not
the only evaluation factor, or even the most important factor,
specified by the RFP. Moreover, the Lot II options for extended
warranties for the Lot I trainers are by site, not by trainer
configuration or line item, and two of the sites will receive two
different types of trainers; it thus follows that the requirements are
not severable and must be provided by the same contractor.[4]
Where, as here, a solicitation contemplates a single award for the
requirement, the contracting agency should generally award on that
basis, even where the RFP
reserves the right to the agency to make multiple awards. See
Knoxville Glove Co.,
supra at 3-4. Because the RFP here contemplated an aggregate award,
ICS was not
entitled to award of individual line items.
The protest is denied.
Comptroller General
of the United States
1. Neither offeror qualified its proposal on an "all or none" basis.
2. ICS also had a slightly lower price than Symtron for the Lot I
mobile structural trainer for Ft. Rucker, but a higher price than
Symtron for the additional quantities of this configuration of trainer
in Lot III. In Lot II, ICS' price for the extended warranty for the
Ft. Lewis site in Lot I was lower than Symtron's. Otherwise,
Symtron's line item prices were lower than ICS'.
3. We note that prior to the issuance of the final RFP, the Navy
posted the following response to a query about the draft RFP:
Question: "Will the Government entertain proposals for
individual systems versus the entire project? For
instance, the [aircraft rescue/fire fighting] mobile
trainer only?"
Answer: "No."
The RFP actually issued was not materially different from the draft
RFP in this respect. Had the Navy instead contemplated making
multiple awards under the RFP, it should have included in the RFP the
provision at FAR sec. 52.215-34, "Evaluation of Offers for Multiple
Awards," as required by FAR sec. 15.407(h); that provision, which was not
included in the RFP, assumes administrative costs for each contract
issued in determining whether multiple awards would result in the
lowest aggregate cost to the government.
4. Under its scenario for multiple awards, ICS suggests that the Navy
could merely deduct ICS' extended warranty price (which is
determinable per trainer) from Symtron's for sites where both ICS and
Symtron would supply different configurations of trainer. However,
this arrangement is not feasible because Symtron priced the extended
warranty line items taking into account the cost savings resulting
from providing the extended warranty coverage at sites with multiple
trainers based on its reasonable understanding that the solicitation
contemplated a single award.