BNUMBER: B-277555
DATE: September 12, 1997
TITLE: Jack Faucett Associates, B-277555, September 12, 1997
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Matter of:Jack Faucett Associates
File: B-277555
Date: September 12, 1997
Jack G. Faucett for the protester.
Beverly Maria Russell, Esq., Department of Transportation, for the
agency.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of
the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
Where solicitation states a best value evaluation plan and that the
agency will award from one to three contracts, the agency's decision
to award two contracts to the two undisputed superior offerors is
unobjectionable.
DECISION
Jack Faucett Associates protests the failure of the Department of
Transportation, Federal Highway Administration (FHWA), to make an
award to it under request for proposals (RFP) No. DTFH61-97-R-00010,
for technical and program support services to assist FHWA in
developing and evaluating transportation policy issues.
We deny the protest.
The RFP, issued on February 5, 1997, contemplated award of:
one or more (but most likely not more than three) indefinite
delivery/indefinite quantity (IDIQ) contracts from this
solicitation. Work will be performed under these contracts
through the placement of Task Orders that may be either: firm
fixed price (FFP), cost plus fixed fee (CPFF) or cost plus award
fee (CPAF).
The use of multiple award contracts will allow FHWA to take
continuous advantage [during the placement of task orders] of the
competitive forces of the commercial market place which will
result in lower prices, better quality, and improved contractor
performance in satisfying FHWA requirements.
This requirement is not a small business set-aside.
The RFP also stated a best value evaluation plan with the following
three evaluation factors listed in descending order of importance:
technical, cost, and business factors (i.e., past performance and
subcontracting plan for using disadvantaged and women-owned small
business enterprises and minority institutions). The RFP's statement
of work listed 9 task areas and 79 sub-tasks. The RFP also stated the
competition procedure for placement of task orders among the firms
that receive contract awards under the RFP.
Four offerors, including Faucett, Battelle Memorial Institute, and
KPMG Peat Marwick, submitted proposals in response to the RFP. FHWA
evaluated proposals, conducted discussions, and requested best and
final offers (BAFO). The BAFO evaluations of Battelle's, KPMG's, and
Faucett's BAFOs were:[1]
Offeror Technical Rating
(0-100 points) Price/Cost[2]
Battelle 87.3 $16,612,216
KPMG 80.8 18,491,569
Faucett 64.3 16,844,913
Under past performance, Battelle and KPMG received "excellent" ratings
and Faucett received a "good" rating. Under subcontracting, Battelle
proposed significantly greater participation by disadvantaged and
women-owned small business enterprises and minority institutions than
did the other offerors; KPMG proposed slightly greater participation
than did Faucett. The Evaluation Panel discussed the relative merits
and concerns for each BAFO, and recommended awards to Battelle and
KPMG, the two highest-rated offerors.
The source selection official (SSO) reviewed the evaluation results[3]
and determined that Battelle and KPMG offered significant quantitative
and qualitative advantages over Faucett. Moreover, she determined
that Faucett's proposed team:
[did] not have any capabilities that are not available on the
[Battelle] or KPMG teams, nor do they provide a similar magnitude
of depth and breadth of coverage.
The SSO determined that Faucett's cost advantage over KPMG did not
offset KPMG's significantly greater technical advantage over Faucett.
She determined that the BAFOs of Battelle and KPMG represented the
best value to the government and that two contract awards to these
firms would provide sufficient on-going competition for placing task
orders. On July 3, FHWA awarded contracts to Battelle and KPMG.
After Faucett requested and received a debriefing, it filed this
protest.
Faucett does not protest the awards to Battelle or KPMG. Rather,
Faucett alleges that the agency should have awarded a third contract
to Faucett because it was a small business and its BAFO was the
third-ranked acceptable proposal under the RFP which contemplated
multiple awards.
It is well settled that there is no right to a government contract,
Perkins v. Lukens Steel Co., 310 U.S. 113, 127 (1940); Pegasus Alarm
Assocs., Inc., B-225597.2, May 12, 1987, 87-1 CPD para. 499 at 3, although
of course, firms do have the right to have their bids or offers
considered fairly. Krygoski Constr. Co., 63 Comp. Gen. 367, 371
(1984), 84-1 CPD para. 523 at 6. In reviewing protests against allegedly
improper evaluations and source selection decisions, our Office
examines the record to determine whether the agency's judgment was
reasonable and in accord with the RFP's stated evaluation factors.
Brisk Waterproofing Co., Inc., B-276247, May 27, 1997, 97-1 CPD para. 195
at 3. A protester's mere disagreement with an agency's evaluation and
source selection decision does not render the results unreasonable.
Id.
In response to the protest, FHWA states that the teams proposed by
Battelle and KPMG offered considerable depth and breadth of experience
covering all of the task areas. Although acceptable, Faucett's
proposal was clearly inferior to these two proposals and there was
some concern that Faucett's resources could be overly burdened if it
had to address all of the contract requirements. In addition to the
administrative burden of overseeing a third contract, FHWA determined
that the agency would receive no technical advantage from a third
contract, and that adequate competition on task orders would be
maintained with two competitors. Since the RFP stated that the agency
would award anywhere from one to three contracts and that the
technical area was the most important evaluation factor, we believe
that the agency's decision to award two contracts to the two offerors
submitting the clearly technically superior proposals was reasonable
and consistent with the stated evaluation plan.
Although the protester makes numerous statements disagreeing with the
agency's decision, its allegations are untimely, lack merit, or are
unsupported by facts.
For example, Faucett alleges that the RFP and/or awards did not
provide adequate opportunity for small businesses. However, the RFP
specifically stated that the solicitation was not a small business
set-aside. Thus, to the extent Faucett protests after award the RFP's
failure to restrict at least one contract award for small businesses,
it is an untimely protest of alleged solicitation improprieties
apparent on the face of the RFP which should have been protested prior
to the date for submission of proposals. 4 C.F.R. sec. 21.2(a)(1)
(1997). To the extent Faucett alleges that either Battelle's or
KPMG's proposals do not provide adequate subcontracting opportunities
for small disadvantaged or women-owned small businesses or minority
institutions, the record shows that the allegation lacks merit because
either awardee's proposal offers greater participation from such
subcontracting organizations than that proposed by Faucett.
Moreover, while Faucett generally alleges that its proposal must
represent a better value on certain tasks than either of the two
awardees' proposals, and thus that Faucett should have been awarded a
contract for at least some of the task areas, the protester has not
identified a single task area for which it should have been found
superior to the other offerors. In any case, the RFP did not
contemplate making awards encompassing less than the totality of the
tasks. We have examined all of Faucett's objections to the failure of
the agency to make a third award and find nothing more than mere
disagreement with the agency's determination, which is insufficient to
disturb the agency's source selection decision.
The protest is denied.
Comptroller General
of the United States
1. The fourth offeror submitted the highest cost, lowest-rated BAFO,
and was thus not in contention for an award.
2. The figures shown are proposed costs based on staffing estimates
assuming two awards. The RFP
also provided staffing
estimates and requested
proposed costs assuming one
and three awards.
3. Although Faucett alleges that the agency informed it that the
Evaluation Panel made no award recommendations, the BAFO evaluation
report prepared by that panel and submitted to the SSO shows that the
panel did make award recommendations to the SSO.