BNUMBER: B-276878
DATE: July 29, 1997
TITLE: SWR, Inc., B-276878, July 29, 1997
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Matter of:SWR, Inc.
File: B-276878
Date:July 29, 1997
Timothy S. Swindall for the protester.
Michael Briskin, Esq., and Elizabeth M. Grant, Esq., Defense Logistics
Agency, for the agency.
C. Douglas McArthur, Esq., and Christine S. Melody, Esq., Office of
the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
Where solicitation identified price and past performance as equally
weighted evaluation criteria, identified form on which firms were to
provide past performance information, and advised firms of the use to
which the form would be put and the manner in which past performance
would be evaluated, selection of higher-priced quote submitted by firm
with higher past performance rating was reasonable and consistent with
the stated evaluation scheme; protest that form used for past
performance evaluation was insufficient to distinguish between firms
is untimely, since the solicitation clearly described the use to which
the form would be put.
DECISION
SWR, Inc. protests the issuance of a purchase order to Technical
Specialties, Inc. (TSI) under request for quotations (RFQ) No.
SP4700-97-Q-0001, issued by the Defense Logistics Agency (DLA) for
maintenance of computers. SWR asserts that the agency lacked a
reasonable basis for its evaluation of quotes and selection of TSI.
We deny the protest.
This requirement was initially issued on December 31, 1996, as a
request for proposals to supply parts and labor necessary for remedial
and preventative maintenance of government-owned microcomputers and
peripheral equipment located at the DLA headquarters complex at Ft.
Belvoir, Virginia and other DLA-supported activities in the
Washington, D.C. metropolitan area. On January 23, 1997, DLA
converted the solicitation to a small purchase RFQ, in accordance with
Federal Acquisition Regulation (FAR) Part 13. As amended, the RFQ
contemplated the issuance of a fixed-price, time-and-materials
purchase order for a performance period not to exceed either a maximum
funding ceiling of $50,000 or 1 year, whichever occurred earlier. The
RFQ stated that award would be made to the firm submitting the
technically acceptable quotation offering the best value to the
government, based on a "comparative assessment" of past performance
and price, which were ranked as equal factors.
The solicitation described the evaluation of past performance as
follows:
Evaluation of past performance will be a subjective but impartial
assessment based upon a consideration of all relevant facts and
circumstances. It will not be based upon absolute standards.
The Government is seeking to determine whether the offeror has
consistently demonstrated a commitment to customer satisfaction
and timely, quality service in the same or similar acquisitions.
This is a matter of judgment.
The RFQ advised potential quoters that the agency would evaluate past
performance in accordance with a past performance questionnaire
attached to the solicitation. The RFQ instructed quoters to fill in
the first page of three copies of the questionnaires, providing
information on their three most recent similar contracts, and that the
agency would then forward the questionnaires to the activities listed
for an assessment of past performance. This assessment would include
five areas: timeliness of performance, quality of supplies delivered
or services performed, problem identification and resolution, cost
containment/pricing issues, and customer service. While the agency
reserved the right to consider information obtained from other
sources, it advised quoters that primary emphasis would be upon
responses to the past performance questionnaire.
By the March 18 closing date, 12 quotations were received. The
protester submitted the low price; the awardee was second low. Eight
firms, including the awardee, received a past performance rating of
"outstanding." The protester received an overall past performance
rating of "satisfactory." The contracting officer noted that TSI had
received higher ratings from its customers in all five areas of past
performance, historically providing timelier, higher quality, and
overall better customer service. The contracting officer noted that
timelier service would result in less down time (and, therefore, more
productive time) for the customer. Higher quality service would, he
noted, result in fewer repeatable breakdowns. Similarly, he
anticipated that TSI's superior record for identification and
resolution of problems would result in less down time. The
contracting officer determined that, inasmuch as the anticipated price
savings from TSI's higher quality service would outweigh the
relatively small estimated difference between TSI's and SWR's prices,
TSI's quote represented the best value to the government.
Accordingly, on April 21, the agency issued a purchase order to TSI; 1
week later, SWR filed this protest with our Office.
SWR challenges the contracting officer's reliance on the information
obtained during the evaluation of past performance. The protester
asserts that the past performance questionnaire, while adequate to
confirm a firm's basic ability to perform, does not provide enough
specific technical information to decide whether the past performance
of any firm warrants payment of a price premium. The determination
here that the awardee might deliver in a more timely manner or might
provide more reliable or higher quality service is, SWR contends,
"speculative." SWR argues that, since it submitted a technically
acceptable quotation and is a responsible contractor,[1] the agency
should have based its selection on the remaining selection criterion
of price.
While SWR may be, as it claims, the responsible firm submitting the
lowest-priced, technically acceptable quote, an agency is free to
reasonably use evaluation criteria to select other than the
responsible firm submitting the lowest-priced, technically acceptable
response to a solicitation, so long as the solicitation disclosed the
evaluation criteria used. See Miltope Corp.; Aydin Corp., B-258554.4
et al., June 6, 1995, 95-1 CPD para. 285 at 14 (same, in context of
negotiated procurement). In a best value procurement, such as the
instant case, an agency may select a higher-rated, higher-priced
quotation or offer for award, where the agency reasonably determines
in accordance with the stated evaluation criteria that the superiority
of the higher-rated quotation or offer outweighs the price advantage
of the lower-rated one. Dynamic Aviation--Helicopters, supra, at 3-4.
As discussed below, the record here supports the evaluation and the
selection of TSI, based on its higher past performance rating relative
to SWR, as both reasonable and consistent with the stated selection
criteria.
The record shows that, from three respondents evaluating the five
areas of past performance indicated on the past performance
questionnaire, SWR received 13 "satisfactories" and 2 "outstandings."
As noted above, the agency evaluated the protester's past performance
as "satisfactory" overall. By contrast, TSI received 2
"satisfactories" and 13 "outstandings," for an overall rating of
"outstanding." Specifically, from those respondents rating the
timeliness of service, TSI received two "outstandings" and a
"satisfactory," while SWR received three "satisfactories." On
portions of the questionnaire relating to the quality of services
provided, TSI received three "outstandings," while SWR received three
"satisfactories." With regard to the containment of costs, TSI
received three "outstandings" while SWR received one "outstanding" and
two "satisfactories." Since TSI scored more highly in all these areas
of the evaluation, we do not find it unreasonable for the agency to
anticipate timelier, higher quality service from TSI. Specifically,
the agency asserts that, considering an average repair time of 1.3
hours, and the lack of productivity for employees when a computer
fails, $6 more per hour is a small price to pay for a speedier and
more reliable resolution to a computer malfunction. As the selection
decision states, the contracting officer determined that SWR's
relatively modest price advantages would be rapidly eroded, were SWR
to prove less efficient in performing repairs or less sparing in
ordering replacement parts. Under these circumstances, we cannot
conclude that the agency's determination that TSI offered the better
value, as between SWR and TSI, was unreasonable.
To the extent that SWR asserts that the questionnaire did not provide
enough information to support the evaluation and selection decision,
or that DLA did not provide adequate criteria for respondents to rank
past performance, its protest is untimely. The questionnaire and
evaluation scheme were clearly set forth in the RFQ; SWR does not deny
that it was aware of the exact contents and format of the
questionnaire prior to submitting its quotation on March 18. Protests
based upon alleged improprieties in an RFQ which are apparent prior to
the time set for receipt of quotations must be filed before that time.
4 C.F.R. sec. 21.2(a)(1) (1997); East West Research, Inc.--Recon.,
B-236994.2, Nov. 22, 1989, 89-2 CPD para. 496 at 2. Since the protest
was not filed until after a purchase order was issued to TSI, any
objection to the agency's use of the questionnaire is untimely.
The protest is denied.
Comptroller General
of the United States
1. We note that the comparative assessment of past performance that
occurred here was not a responsibility determination. An agency may
use traditional responsibility factors, such as experience or past
performance, as technical evaluation factors, where, as here, a
comparative evaluation of those areas is to be made. Advanced
Resources Int'l, Inc.--Recon., B-249679.2, Apr. 29, 1993, 93-1 CPD para.
348 at 2. A comparative evaluation means that competing proposals
will be rated on a scale relative to each other as opposed to a
pass/fail basis. Dynamic Aviation--Helicopters, B-274122, Nov. 1,
1996, 96-2 CPD para. 166 at 3. SWR's responsibility and technical
acceptability--its basic willingness and ability to perform--are not
at issue here.