BNUMBER:  B-278650 
DATE:  February 20, 1998
TITLE: USA TODAY, B-278650, February 20, 1998
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DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective 
Order.  This redacted version has been approved for public release.
Matter of:USA TODAY

File:     B-278650

Date:February 20, 1998

Trisa J. Thompson, Esq., Kelly P. Doran, Esq., and G. Mathew Koehl, 
Esq., Seyfarth, Shaw, Fairweather & Geraldson, for the protester.
David R. Johnson, Esq., Theodore J. Boutrous, Jr., Esq., and James C. 
Dougherty, Esq., Gibson, Dunn & Crutcher, for Miller Advertising 
Agency, Inc., an intervenor.
John A. Krump, Esq., Department of Justice, for the agency.
Michael R. Golden, Esq., Office of the General Counsel, GAO, 
participated in the preparation of the decision.

DIGEST

Where agency reasonably decides that technical proposals are 
essentially equal, agency properly may award to low-priced offeror.

DECISION

USA TODAY protests the Federal Bureau of Investigation's (FBI) award 
of a fixed- price, indefinite delivery, indefinite quantity contract 
to Miller Advertising Agency, Inc. under request for proposals (RFP) 
No. 7116 for advertising services.  USA TODAY argues that the FBI 
failed to evaluate proposals consistent with the stated evaluation 
criteria and, as a result, performed a flawed price/technical tradeoff 
analysis.

We deny the protest.

The RFP is intended to provide advertising to meet the FBI's statutory 
requirement to provide public notice of seized properties subject to 
forfeiture.  The RFP provided that award would be made to that offeror 
whose proposal, conforming to the solicitation, was determined to be 
in the best interests of the government.  The RFP stated that 
proposals would be evaluated for technical capabilities, price, and 
past performance and that these evaluation areas were listed in order 
of importance.  Technical criteria consisted of the following areas 
for evaluation:

     The Offeror must demonstrate how th[e] proposal addresses 
     requirements and specifications of the Statement of Work and the 
     practicalness and probable effectiveness of those methods.

     The Offeror must provide detailed documentation that 
     substantiates that the specific requirement that their newspaper 
     has general circulation in all the Judicial Districts of the 
     United States and its Territories.

     The Offeror must clearly demonstrate their ability to receive 
     data electronically (or manually if necessary) accurately and 
     completely and publish that same information accurately.  Methods 
     to be used to validate data received and published must be 
     clearly explained.

The RFP also explained in detail how past performance would be 
evaluated.

Further, of relevance here, by amendment No. 1, the agency responded 
as follows to a question asked by USA TODAY prior to the initial 
closing time:

     QUESTION:  What is the minimum circulation a newspaper must 
     deliver in each Judicial District to be considered a newspaper of 
     "general circulation?"

     ANSWER:  Property seized for purposes of federal forfeiture laws 
     must be published in a newspaper of general circulation in the 
     judicial district where the property was seized or where the 
     forfeiture action is brought.  See Title 19, Code of Federal 
     Regulations, Section 162.45(b); Title 21, Code of Federal 
     Regulations, Section 1316.75; and Title 28, Code of Federal 
     Regulations, Section 8.8(c).  The term "general circulation" is 
     not defined in the governing statute or enabling legislation.  
     The FBI conducted a review of case law attempting to define a 
     newspaper of "general circulation in a judicial district" which 
     would satisfy the statutory-and regulatory requirements.  The 
     following legal factors must be considered:

        1.  That the publications be a "newspaper"

        2.  That the newspaper be published at a minimum on a weekly 
        basis

        3.  That the newspaper be readily available in all judicial 
        districts to anyone who wishes to obtain it (demonstrated by 
        circulation figures in that judicial district - both 
        subscription and newsstand)

        4.  That the content of the newspaper contain news or 
        information of a general character and of a general interest, 
        appeals to public generally and reaches a diverse readership

        5.  That the newspaper advertise in such a manner as to bring 
        legal advertisements or official notices to the attention of 
        the general public 

        6.  That the newspaper have at least one newspaper in 
        circulation by subscription per 4,000 people in that judicial 
        district (FBI's threshold of de minimus circulation)

        7.  That the newspaper have a national circulation

The FBI received proposals from eight firms including USA TODAY and 
Miller, which proposed to advertise in The New York Times.  The 
proposals were evaluated by the FBI's Advertising Services Committee 
(ASC).  Using a rating worksheet, the ASC rated each proposal for five 
technical criterion reflecting the technical requirements in the 
statement of work and one criterion regarding a firm's prior 
experience in publishing electronically and accurately.  The five 
criteria reflecting the technical requirements were as follows:

     Must provide advertisement once a week for three consecutive 
     weeks in publication of general circulation, . . . .

     Must substantiate newspaper has a general circulation in all 
     judicial districts.

     Must publish advertisement in newspaper published weekly and must 
     accept the text for the ad publication five working days prior to 
     publication.

     Must substantiate ability to receive data through electronic 
     means accurately and publish same information accurately.

     Must provide draft copies of each weekly advertisement to the FBI 
     so that data may be examined for accuracy before advertisement is 
     published . . . .

The ASC panel members individually rated each offeror's proposal in 
accordance with the factors described above, and completed evaluator 
worksheets with comments.  The ASC prepared a memorandum which 
contained the results of the ASC's evaluation.  Although the record 
contains no indication that the panel members actually point-scored 
proposals, the memorandum ranked offerors "in descending numerical 
order of technical acceptability."  Each offeror's evaluation was then 
described in a narrative synopsis.  USA TODAY was listed first; Miller 
was listed second.  The memorandum also included an attachment which 
showed a letter rating for each evaluation criterion.  Of relevance 
here, the second highest rating, "check," indicated that the vendor 
met the criteria in the referenced RFP section.  The highest rating 
was a "plus" rating which meant that the vendor exceeded the 
criterion.  USA TODAY and Miller received identical ratings--an 
[deleted].  Miller was the low-priced offeror based on initial 
proposals.

While the FBI sent clarification questions to several offerors, the 
agency had no questions concerning the proposals of USA TODAY and 
Miller.  After evaluation of the clarification responses, three firms 
including USA TODAY and Miller received a [deleted].  The FBI 
requested best and final offers (BAFO); Miller remained the 
lowest-priced offeror.  The FBI's price evaluation for the base year 
and options showed that Miller's evaluated BAFO price was more than 
[deleted] below USA TODAY's price.   The contract specialist prepared 
a memorandum to her unit chief.  She noted that the final technical 
ranking indicated that "Miller [was] virtually the same technically as 
the number one ranked proposal (USA TODAY)."  She stated that "[i]n 
view of the [deleted] difference between the evaluated price of [these 
two offerors, it] is determined that Miller offers the best value 
overall to the FBI."  She recommended award to Miller.  The unit chief 
made the same recommendation to the chief contracting officer based on 
Miller's [deleted] lower price.  The contract review board 
subsequently approved the award.

USA TODAY challenges the FBI's decision to award to Miller primarily 
because it believes that, under the evaluation criteria, its own 
proposal is technically superior, not technically equal, to Miller's 
proposal because its circulation is greater than the circulation of 
The New York Times.  USA TODAY believes it should have been awarded a 
significantly higher technical evaluation score or rating because of 
its greater circulation.  To establish its technical superiority, the 
protester relies on the amendment discussed above which listed "legal 
factors" to be considered in defining a newspaper of "general 
circulation in a judicial district."  The protester argues that the 
FBI did not evaluate these factors and, based solely on circulation 
figures submitted in its proposal, USA TODAY was superior with regard 
to these factors--being available in all judicial districts, having at 
least one newspaper in circulation by subscription per 4,000 people in 
each judicial district (subscription factor), having a national 
circulation, appealing to the public generally, and having diverse 
readership.

The FBI concedes it did not specifically evaluate whether each 
newspaper met the subscription factor identified in amendment No. 1.  
The FBI asserts it looked to this factor as one of many factors which 
would indicate whether a newspaper was one of "general 
circulation"--that is, that the newspaper had a national circulation, 
had at least some circulation in each judicial district, and was a 
newspaper of general interest.  The FBI points out that, based on 
circulation figures nationally and by districts and other information 
contained in the proposals, USA TODAY and The New York Times met the 
"general circulation in a judicial district" requirement.  The FBI 
also points out that the RFP did not specifically ask for, and that no 
offeror provided, circulation information indicating the number of 
subscriptions per judicial district.  The FBI asked for and was 
provided both newspapers' gross circulation figures by judicial 
district.  The FBI acknowledges the one statement in the ASC initial 
evaluation memorandum that numerically ranked USA TODAY first based on 
initial proposals.  However, it notes that the subsequent evaluation 
record shows that the agency's contracting officials viewed the 
proposals of USA TODAY and Miller as technically equal and did not 
identify USA TODAY's proposal as technically superior.  Given the 
[deleted] price premium associated with the proposal of USA TODAY, the 
FBI maintains that its decision to award to Miller, even if USA TODAY 
should have been higher rated, would have been reasonable in any 
event.

Initially, we agree with the agency that amendment No. 1 did not set 
forth minimum, mandatory requirements for "general circulation in a 
judicial district."  By its own terms, the amendment provided that for 
defining a newspaper of "general circulation in a judicial district," 
"the following factors must be considered."  The factors were listed 
as factors to be considered--nowhere were they described as mandatory 
minimums.  Further, in amendment No. 1, the answer to the question 
concerning minimum circulation required in a judicial district to be 
considered a newspaper of general circulation was not described as 
amending the statement of work or evaluation criteria in the RFP.  In 
our view, the answer is reasonably read as further guidance to the 
vendors as to what factors the FBI would consider in deciding whether 
a newspaper would be considered one of general circulation.  Nothing 
in the RFP or the amendment indicated that a newspaper failing to meet 
one of these factors could not still be considered as one having a 
general circulation and as being technically acceptable.  Further, to 
the extent USA TODAY argues that the FBI improperly failed to consider 
the subscription factor, the FBI has argued, and our review of the 
record confirms, that neither USA TODAY (nor Miller) furnished the 
information necessary to evaluate whether the offerors' circulation 
figures met this requirement.  Thus, it is reasonable to conclude that 
neither USA TODAY nor Miller read this requirement as a minimum 
requirement which had to be satisfied.[1]  

In view of our conclusion, the dispositive issue is whether or not the 
FBI reasonably concluded the proposals were technically equal.  As 
explained above, the evaluators concluded that both proposals met the 
requirements that the proposed newspaper be one of general 
circulation.  Both offerors provided circulation figures to establish 
their position that they had general circulation in all judicial 
districts.  Although the ASC initially may have ranked USA TODAY 
higher than Miller, the agency evaluators ultimately did not conclude 
that the proposal presentations regarding circulation was a meaningful 
discriminator between the USA TODAY and Miller proposals.  Based on 
our review of the evaluation record, we find the agency's conclusion 
that the two proposals were technically equal to be reasonable.  Since 
the agency reasonably found the two proposals technically equal, 
selection of the lower-priced proposal was proper, even though the RFP 
assigned less weight to price than to technical capabilities.  Ogilvy, 
Adams & Rinehart, B-246172.2, Apr. 1, 1992, 92-1 CPD  para.  332 at 5.

The protest is denied.

Comptroller General
of the United States
   
1.[deleted]