BNUMBER: B-278450
DATE: January 30, 1998
TITLE: American Artisan Productions, Inc., B-278450, January 30,
1998
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Matter of:American Artisan Productions, Inc.
File: B-278450
Date:January 30, 1998
Arthur L. Friedman for the protester.
James L. Weiner, Esq., and Justin P. Patterson, Esq., Department of
the Interior, for the agency.
Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protester is not competitively prejudiced by the confusing evaluation
scheme in a procurement conducted under simplified acquisition
procedures that did not list technical approach as an evaluation
criterion, where the solicitation otherwise reasonably disclosed that
technical approach would be evaluated, the protester does not deny
that the solicitation required it to describe its technical approach,
the awardee's technical approach was reasonably found to be clearly
superior to the protester's technical approach so as to reasonably
offset the protester's modest price advantage, and the agency had a
reasonable basis for finding the awardee's proposal superior to the
protester's under the explicitly identified evaluation criteria.
DECISION
American Artisan Productions, Inc. protests the award of a contract to
Turner Exhibits, Inc., under request for quotations (RFQ) No.
1443-RQ-8530-97-027, issued by the Department of the Interior,
National Park Service, for fabricating museum exhibits for the Loomis
Museum, Lassen Volcanic National Park, California. American Artisan
contends that the Park Service's evaluation was not in accordance with
the stated evaluation factors.
We deny the protest.
The RFQ, issued under simplified acquisition procedures, required the
contractor to fabricate and install a set of seven exhibits related to
volcanic activity to be exhibited at the Loomis Museum, including
necessary labor, materials, professional services, facilities, and
travel. The exhibits were required to be constructed and installed in
accordance with detailed specifications and construction drawings
keyed to each exhibit.
Under section IX.3(1) of the RFQ, the award is to be made on a best
value basis in which the "offeror's quotation will be evaluated under
two areas of consideration; namely, technical and cost." Under
section VIII.7, "INSTRUCTIONS FOR TECHNICAL SUBMITTAL," the RFQ
states:
the offeror shall submit . . . Supplemental Technical Evaluation
Information as indicated in Part IX [EVALUATION FACTORS FOR
AWARD]. Offerors should ensure that their technical responses
are clear, concise, and fully address all of the evaluation
factors listed. The submittal must also fully conform to the
statement of work and clearly define an approach and methodology.
Mere indication of an intent to conform will not be considered as
acceptable.
The technical submittal should be specific, detailed, and
complete enough to clearly and fully demonstrate that you have a
thorough understanding of the effort required and have a valid
and practical plan for performing the work and should be
sufficiently detailed to show how it will comply with the
specification requirements.
Section IX.3(2) states:
BASIS FOR AWARD. Award will be made to the offeror who the
Government determines can best accomplish the necessary work to
satisfy the objectives and requirements set forth in the Request
for Quote Specifications in a manner most advantageous to the
Government. The documentation that is submitted by the offeror
in response to the Request for Quote will receive a thorough
evaluation. Offerors must convey to the Government that the
offeror is able to accomplish the work in a coordinated and
timely fashion such that technical requirements will be achieved.
Finally, section IX.3(4) states:
TECHNICAL EVALUATION CRITERIA. The following paragraphs identify
the criteria. A rating of "unacceptable" for any criteria may
eliminate the offer from further consideration, regardless of
[the] rating for any other criteria. Criteria items and factors
to be considered for evaluation are listed in descending order of
importance, as follows:
A. Past performance: Demonstrated past and recent experience
in fabricating visitor center exhibits.
B. Qualifications: Professional qualifications of the
principals and staff proposed for the award.
The Park Service received seven quotations in response to the RFQ,
ranging in price from $50,022 to $164,992. American Artisan's
quotation price was $81,993 and Turner's price was $85,844. An
evaluation team, after reviewing the quotes, determined that Turner's
quote represented the best value in terms of technical and cost, and
that the quotes priced lower than Turner's quote, including American
Artisan's, were technically inferior to Turner's.
According to the contemporaneous evaluation documentation, labeled
"Technical Evaluation Summary," the agency found that Turner's quote
represented the best value because it:
addresses all of the criteria and exceeds our qualifications in
terms of experience and expertise. The proposal clearly shows
that the contractor took the time to examine each exhibit element
and then specify in the proposal 1) their understanding of how
the exhibit was to look and work and 2) to identify any special
or unusual fabrication requirements . . . .
On the other hand, the agency recorded that American's quote was
technically inferior because it:
fails to discuss any of the technical requirements of any of the
exhibits elements. Therefore, it is not possible to ascertain
exactly what is included in their cost proposal of $81,993, i.e.,
will [American Artisan] provide the proper amount of illumination
and fiberoptics for the Ring of Fire diorama, have they reflected
the fact that one exhibit is a highly mechanical, interactive
exhibit which must also include installation of light emitting
diodes (LEDs), fittings, and hardware, etc.
On September 29, the Park Service issued a purchase order to Turner.
American Artisan initially protested the award to the agency on
October 6. It subsequently requested a debriefing, which was provided
by the agency on October 17. This protest challenging the evaluation
followed. Performance has been withheld pending our decision.
American Artisan protests that the Park Service improperly based its
award selection on an unstated evaluation factor--the relative detail
and contents of the respective offeror's discussion of how the offeror
would fabricate each technical exhibit, that is, technical
approach--because past performance and qualifications were the only
listed technical evaluation factors. The Park Service maintains that
downgrading American Artisan's proposal for not including an
adequately detailed technical approach was reasonable and contemplated
by the RFQ, given that the RFQ instructions request such information
to be submitted by the offerors.
Federal Acquisition Regulation (FAR) sec. 13.106-2 affords contracting
officers using simplified acquisition procedures discretion in
determining how to conduct a procurement and in fashioning suitable
evaluation procedures. This discretion does not permit a failure to
identify significant evaluation factors in the RFQ or evaluating
quotes on the basis of factors not announced in the RFQ. Rather, FAR sec.
13.106-2(a)(1) and 13.106-2(b) specifically require that solicitations
advise potential offerors of the basis upon which award is to be made,
and agencies must conduct evaluations based on the factors set forth
in the solicitations. Forestry, Surveys & Data, B-276802.3, Aug. 13,
1997, 97-2 CPD para. 46 at 2.
The RFQ here was confusing as to whether and how technical approach
would be evaluated. Section IX.3(4), standing alone, would indicate
that technical approach was not a factor to be evaluated, and that
past performance and qualifications would be the only technical
criteria evaluated in making the award selection. That provision also
disclosed the relative weight assigned to the two identified criteria,
but did not indicate how much weight might be assigned to technical
approach. Since technical approach was also evaluated, the agency did
not comply with the requirements in FAR sec. 13.106-2(a)(1) and
13.106-2(b) that the RFQ clearly disclose the basis for award and that
undisclosed factors not be used in the award evaluation. Id.
However, particularly because simplified acquisition procedures were
being used here, we conclude that the defects in this procurement do
not provide a basis for sustaining the protest. In this regard,
section VIII.7 clearly required the offerors to describe a technical
approach addressing how the offeror would conform to the statement of
work requirements that was "specific, detailed, and complete enough to
clearly and fully demonstrate . . . understanding . . . and . . .
sufficiently detailed to show how it will comply with the
specification requirements." Section IX.3(2) describing the "basis
for award" indicates that this submission would "receive a thorough
evaluation" to show that the "work [will be accomplished] in a
coordinated and timely fashion"--which indicates that the technical
approach will be part of the award consideration. Thus, American
Artisan was on notice that its technical approach would be evaluated
and considered in the award selection.
American Artisan does not claim that it was not required to describe
its technical approach, but argues that it submitted all that was
required. From our review, we agree with the agency that Turner's
quote more clearly and thoroughly described how it would accomplish
each of the statement of work requirements than did American Artisan's
quote, which only generally described how certain work tasks would be
performed and contained a preliminary production plan that did not
describe how each exhibit would be constructed. Thus, the agency
reasonably considered Turner's technical approach to be superior to
American Artisan's approach, which did not describe in detail how the
statement of work requirements would be performed, as required by the
proposal instructions.
Moreover, the contracting officer reports that in making the award
selection she and the evaluators considered and discussed Turner's and
American Artisan's relative past performance, as described in the
quotes, and found that Turner's quote demonstrated superior past
performance. While this consideration was not recorded in
contemporaneous documentation,[1] the agency states that it found that
American Artisan's quote did not indicate when it performed its
identified projects, most of which appeared to have been done many
years ago, or clearly show their particular relevance to this work.
In contrast, Turner's quote did date its projects and describe them in
a way that showed their relevance to the present work. From our
review, we cannot find the agency's judgment in this regard to be
unreasonable.
We conclude that the protester was not prejudiced by the consideration
of technical approach, even though it was not explicitly identified in
the RFQ as an evaluation criterion. As explained above, American
Artisan was on notice that technical approach would be considered in
the award evaluation and, while the RFQ gave no indication of the
relative weight that technical approach would be accorded, the
relative weight of the evaluation factors need not be disclosed in
procurements conducted under simplified acquisition procedures. FAR sec.
13.106-2(a)(10). Moreover, Turner's demonstrated past experience--a
clearly stated technical evaluation factor--was reasonably found
superior to American Artisan's. Accordingly, we conclude that
American Artisan was not competitively prejudiced by the agency's
consideration of the vendors' technical approaches in deciding that
Turner's quote represented a better value than American Artisan's
slightly lower-priced quote. Id. Therefore, notwithstanding the
flaws in the procurement, we find no basis to disturb the award. See
McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at 3; see
Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996).
The protest is denied.
Comptroller General
of the United States
1. Although FAR sec. 13.106-2(d)(4) advises that "[d]ocumentation should
be kept to a minimum" in simplified acquisition procedure
acquisitions, we would expect that the documentation that is prepared
to describe the basis for award would address the evaluation criteria
stated in the solicitation (such as the past performance at issue
here). See FAR sec. 13.106-2(b)(1).