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.