BNUMBER:  B-278659 
DATE:  February 25, 1998
TITLE: Seedburo Equipment Company, B-278659, February 25, 1998
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Matter of:Seedburo Equipment Company

File:     B-278659

Date:February 25, 1998

Tom Runyon for the protester.
Michael F. Kiely, Esq., United States Department of Agriculture, for 
the agency.
Linda S. Lebowitz, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Where the solicitation's evaluation scheme provided that the combined 
weight of the technical evaluation factors was significantly more 
important than price in determining the proposal representing the best 
value to the government, agency reasonably selected the higher 
technically rated, higher-priced proposal for award where the record 
supported the agency's conclusion that this proposal was technically 
superior to the protester's proposal and that the advantages of the 
awardee's proposal warranted the payment of a price premium.

DECISION

Seedburo Equipment Company protests the award of a contract to 
DICKEY-john Corporation under request for proposals (RFP) No. 
54-M-APHIS-97, issued by the Animal and Plant Health Inspection 
Service, United States Department of Agriculture (USDA) for manual and 
automated grain moisture meters.  Seedburo challenges the agency's 
price/technical tradeoff resulting in an award to an offeror 
submitting a higher technically rated, higher-priced proposal.

We deny the protest.

The RFP, issued on May 15, 1997, contemplated the award of a firm, 
fixed-price requirements contract for basic and option quantities of 
manual and automated grain moisture meters.[1]  The RFP provided that 
only those moisture meter models that met all prequalification 
requirements and had a certificate of conformance under the National 
Conference of Weights and Measures, National Type Evaluation Program 
(NTEP) at the time the RFP was issued would be considered for award.  
As stated in section C.1 of the RFP, the intent of this procurement 
was to select a new technology for "official moisture 
measurement/inspection purposes."  The RFP also explained that it is 
not feasible to have more than one official moisture meter because the 
use of "multiple technologies degrades consistency of results even if 
accuracy is comparable."

The agency explains that grain is measured for moisture because, when 
buying grain based on weight, it is important to know what the 
moisture content is so that a buyer knows how many nutrients and 
things other than water are being purchased.  Hearing Transcript (Tr.) 
at 16.[2]  Moisture in grain generally adds no value to the grain as 
an end-use product.  Id.  Basically, the price of grain is adjusted to 
reflect the moisture content.  Id.

As explained during the hearing, to determine the moisture content of 
grain, the moisture meter operator pours a grain sample into the 
instrument and selects the grain type to be analyzed.  The grain 
sample drops into a test cell where weight, temperature, and other 
properties of the grain are determined; the moisture content is then 
displayed on the instrument.  Tr. at 13-14.  By selecting the grain 
type, the operator in essence selects the calibration or mathematical 
equation that will be used to convert the raw data results into 
moisture content for the particular grain type.  Tr. at 15.  Moisture 
content is ultimately expressed as a percentage of total weight of the 
grain sample.  Id.

The RFP stated that proposals would be evaluated in two phases.  The 
first phase involved the evaluation of technical proposals.  The RFP 
provided the following technical evaluation factors and related 
subfactors:  (1) technical design (range of applicability; 
environmental compatibility; and design requirements); (2) quality 
control, standardization, and check-test processes (adequacy of 
quality control plan; completeness of standardization error analysis; 
degree of conformance of production units with USDA regulations based 
on standardization error analysis and production quality control data; 
and completeness, effectiveness, and efficiency of check-test 
processes that assess the instrument's ongoing performance); (3) 
customer feedback on instrument performance; and (4) past performance 
(timeliness of delivery and business relations).  (After the phase I 
technical evaluation, the agency determined the competitive range.)  
The second phase involved physical testing of proposed instruments.  
The RFP provided that the agency would randomly select 5 of the 15 
current users of the offeror's instrument, as previously identified by 
the offeror, for on-site testing of the instrument at the user's 
facility.  The RFP provided that the award would be made to the 
responsible offeror whose proposal was determined to represent the 
best value to the government, technical evaluation factors and price 
considered.  The RFP further provided that the combined weight of the 
technical evaluation factors was significantly more important than 
price, and that the award could be made to other than the 
lowest-priced offeror.

Four offerors, including Seedburo and DICKEY-john, submitted initial 
proposals by the closing time on June 18.  Seedburo proposed its model 
GMA 128 "grain moisture analyzer," and DICKEY-john proposed its GAC 
2100 "grain analysis computer."  Only the proposals submitted by 
Seedburo and DICKEY-john were included in the competitive range.  Both 
of the proposed moisture meters had NTEP certificates of conformance.  
(With respect to DICKEY-john, its certificate also referenced the 
predecessor model, the GAC 2000 NTEP version.)[3]  Following 
discussions with Seedburo and DICKEY-john and the physical testing of 
their respectively proposed instruments, the agency requested the 
submission of best and final offers.  Out of a possible total of 100 
points, Seedburo's proposal received 63 points and DICKEY-john's 
proposal received 68 points.  Based on physical testing of the 
proposed instruments, Seedburo's instrument was rated "good," and 
DICKEY-john's instrument was rated "excellent."  Over the term of the 
contract, Seedburo's prices were approximately 9 to 18 percent lower 
than DICKEY-john's prices.  Despite this price differential, the 
agency determined to award the contract to DICKEY-john, the offeror 
submitting the technically superior, higher-priced proposal as 
representing the best value to the government.

The protester challenges the agency's selection of a higher 
technically rated, higher-priced proposal for award.

In a negotiated procurement, an agency has the discretion to make 
award to an offeror whose proposal is higher technically rated and 
higher priced where the agency reasonably determines that the price 
premium is justified considering the technical superiority of the 
offeror's proposal and the result is consistent with the RFP's 
evaluation scheme.  Marion Composites, B-274621, Dec. 20, 1996, 96-2 
CPD  para.  236 at 6.

The agency concluded that DICKEY-john's proposal was technically 
superior to Seedburo's proposal.  Noting the differential between 
DICKEY-john's and Seedburo's prices, the agency considered the 
technical differences in the proposals and ultimately concluded that 
the technical superiority of DICKEY-john's moisture meter warranted 
the payment of a price premium to that firm.

More specifically, the agency determined that DICKEY-john's proposal 
contained strengths in each of the four technical areas and for 
physical testing of its proposed instrument.  With respect to the 
technical design evaluation factor, the agency determined that the 
DICKEY-john instrument demonstrated accurate performance (moisture 
measurements) on a significant number of grain types (with 
corresponding calibrations) and demonstrated the potential to develop 
other grain calibrations.  Tr. at 64.  In addition, the DICKEY-john 
instrument was easy to operate (for example, speed of operation and 
analysis of grain types) and DICKEY-john outlined required 
modifications to timely deliver an automated moisture meter.  Tr. at 
65.  (The only two weaknesses with respect to DICKEY-john's proposal 
were listed under this evaluation factor.  First, DICKEY-john did not 
demonstrate calibration accuracy for 1996 crop corn and soybeans, 
although these calibrations were subsequently adjusted and improved 
upon, and second, the firm's proposed instrument did not appear 
well-suited for use as a test weight device because of its use of a 
smaller sample size.  Tr. at 65-66.  The agency did not believe these 
weaknesses were significant in light of standardization and physical 
testing strengths for DICKEY-john's proposed instrument.  See Tr. at 
70.)

With respect to the quality control, standardization, and check-test 
processes evaluation factor, the agency considered a strength of the 
DICKEY-john proposal that the firm was certified by an international 
standards organization as having in-house quality control production 
processes, thus providing the agency with assurances that it would 
receive a quality product from that firm.  Tr. at 66; see also Tr. at 
52.  Further, DICKEY-john demonstrated a very good understanding of 
how various intermediate measurements would affect the final moisture 
result and demonstrated in a well-organized and detailed manner the 
steps that would be necessary to standardize the instruments before 
they left the factory.  Tr. at 66-67.  DICKEY-john also provided a 
good plan for check-test processes in the field against the agency's 
control instruments.  Tr. at 67.  DICKEY-john's test procedures were 
outlined in great detail and provided a check-test that the instrument 
was performing accurately for all grain types and across applicable 
moisture ranges.

For the customer feedback on instrument performance and past 
performance evaluation factors, the agency received favorable comments 
from customers surveyed.  These customers were positive about the 
performance (accuracy, consistency, and reliability) of the 
DICKEY-john instrument and for repairs made by the firm in the field.  
Tr. at 67.  The customers also favorably commented on DICKEY-john's 
very extensive service organization.  Id.

Finally, with respect to physical testing of DICKEY-john's proposed 
instrument, the agency compared moisture content results for five 
randomly selected DICKEY-john GAC 2000 instruments included in the 
field study to moisture content results obtained on an NTEP 
DICKEY-john GAC 2100 calibration instrument using the same samples.  
The agency determined that the field performance of the DICKEY-john 
instruments was excellent--the moisture results of the field 
instruments agreed with the NTEP calibration instrument, consistent 
with USDA tolerances and across grain types.  In other words, the 
agency "had a high degree of confidence that [it] could send out a 
single grain-type sample for the check test, line up instruments for 
that grain type that would be lined up for other grain types [the 
agency would] have to measure."  Tr. at 68-69.

In sum, the agency determined that DICKEY-john's proposal demonstrated 
clear strengths in the areas of instrument standardization, customer 
satisfaction, and instrument service and support--all of these 
strengths supported by the results of the physical testing of 
DICKEY-john's instrument.

With respect to Seedburo, the agency determined that its proposal was 
overall technically acceptable.  For the technical design evaluation 
factor, the agency determined that the Seedburo instrument had a wide 
range of applicability for measuring moisture content across grain 
types and demonstrated the potential to develop other grain 
calibrations.  Tr. at 49-50; see also Tr. at 65.  In addition, 
Seedburo's instrument could measure grain for properties other than 
moisture content, for example, test weight, because it uses a larger 
sample size.  Tr. at 50; see also Tr. at 66.  Seedburo's instrument 
was easy to operate (e.g., selecting a calibration, entering a 
calibration coefficient, and speed of analysis), Tr. at 50-51, and it 
performed well on 1996 crop samples, including corn and soybeans.  Tr. 
at 50.  Seedburo demonstrated its ability to timely deliver an 
automated moisture meter.  Tr. at 51.  These items constituted the 
strengths in Seedburo's proposal.

With respect to the quality control, standardization, and check-test 
processes evaluation factor, the agency listed no strengths in 
Seedburo's proposal.  Among the weaknesses listed for this evaluation 
factor were that Seedburo was not certified by an international 
standards organization as having in-house quality control production 
processes which would help to assure the agency that it would receive 
a quality product.  Tr. at 52.[4]  Seedburo did not demonstrate a 
standardized error analysis, that is, the ability to manufacture and 
adjust instruments such that "a system of a hundred instruments would 
all provide the same reading as opposed to just the two" instruments 
the agency tested.  Tr. at 52-53.  Seedburo emphasized analysis of 
grain samples to verify that instruments were properly adjusted, 
rather than taking adequate steps to ensure standardization of 
individual measurement characteristics or that standardization 
procedures applied across a wide range of grain types or moisture 
content levels.  Tr. at 53.  In addition, Seedburo did not provide a 
detailed plan for check-test processes in the field against the 
agency's control instrument.  Id.  The agency also did not believe 
that Seedburo's proposed field check-test procedure could be conducted 
using a single grain type.

For the customer feedback and past performance evaluation factors, the 
agency received neither positive nor negative comments from customers 
surveyed with respect to Seedburo.  Tr. at 55.

Finally, with respect to physical testing of Seedburo's proposed 
instrument, the agency compared moisture content results for five 
randomly selected Seedburo GMA 128 instruments included in the field 
study to moisture content results obtained on an NTEP GMA 128 
calibration instrument using the same samples.  The agency determined 
that the field performance of the Seedburo instruments was good, but 
noted that the current level of instrument standardization, both 
between instruments and grain types, may not adequately meet the 
agency's requirements for measuring moisture content.  In this regard, 
the agency explained that if the field instrument were properly 
aligned for a single grain type, then the field instrument should be 
properly aligned for other grain types.  Tr. at 56.  However, this was 
not the case for Seedburo's field-tested instruments.  Id.  In other 
words, the agency wanted to be able to check instrument 
standardization by using one grain type and "feel comfortable that the 
instrument then would be aligned for . . . other grain types."  Id.

In sum, the agency determined that while Seedburo's proposal 
demonstrated strengths for the technical design evaluation factor, its 
proposal had weaknesses in the areas of quality control processes, 
standardization error analysis, and proposed check-test processes.  
These weaknesses were highlighted during the physical testing of 
Seedburo's instrument.[5]

Under the RFP's evaluation scheme, the combined weight of the 
technical evaluation factors was significantly more important than 
price in determining the proposal representing the best value to the 
government.  The RFP also provided that the award could be made to 
other than the lowest-priced offeror.  Although DICKEY-john's price 
was higher than Seedburo's price, the agency determined that 
DICKEY-john's proposed instrument was technically superior to 
Seedburo's proposed instrument based on strengths for all technical 
areas (particularly standardization and check-test processes) and for 
physical testing of the instrument, as discussed above.  See also Tr. 
at 69-71.  In light of the strengths associated with DICKEY-john's 
moisture meter, we conclude that the agency could reasonably determine 
that DICKEY-john's technically superior instrument was worth the 
payment of a price premium.

The protest is denied.[6]

Comptroller General
of the United States

1. Amendment No. 0001 of the RFP, issued on May 19, stated that the 
procurement was a total small business set-aside.

2. The transcript citations in this decision refer to the transcript 
of the hearing conducted by our Office in connection with this 
protest.

3. In response to Seedburo's concern that the DICKEY-john GAC 2100 
moisture meter was not eligible for award, the agency explained during 
the hearing that the DICKEY-john GAC 2100 moisture meter was, in 
accordance with the terms of the RFP, section C.3, "the same type as 
the original NTEP-certified model [the GAC 2000 NTEP version] and the 
modified model [was] included with the same model on the current NTEP 
Certificate of Conformance."  Tr. at 36-38.  The protester did not 
file any post-hearing comments, and so did not refute the agency's 
position in this regard.

4. In its protest, Seedburo challenged several RFP provisions such as 
those addressing certification by an international standards 
organization, procedures for physical testing, and minimum sample 
size.  These issues, filed after award, are untimely as they 
constitute alleged solicitation improprieties which were apparent 
prior to the closing time for receipt of initial proposals.  Bid 
Protest Regulations, 4 C.F.R.  sec.  21.2(a)(1) (1997); Engelhard Corp., 
B-237824, Mar. 23, 1990, 90-1 CPD  para.  324 at 7.

5. During the hearing, Seedburo was afforded an opportunity to ask 
questions or to make comments regarding the agency's explanation of 
the strengths and weaknesses in its proposal.  Other than asking a 
question about a particular specification requirement involving sample 
sizes, Seedburo asked no questions and made no comments concerning the 
evaluation of its proposal.  Tr. at 58-59.  As noted above, the 
protester also filed no post-hearing comments.

6. In its protest, Seedburo alleged that the chairman of the agency's 
acquisition planning team for this procurement (an individual who 
signed a procurement integrity certificate) exercised undue influence 
in the selection of DICKEY-john's proposal for award.  The individual 
in question formerly was a research and development engineer for 
DICKEY-john (more than 10 years ago) and contributed to the design 
development of the predecessor model of the proposed DICKEY-john 
moisture meter.  At the hearing, GAO conducted in-depth questioning of 
this individual regarding any interest--financial or otherwise--that 
he may still have had in DICKEY-john.  There was no evidence that this 
individual had any interest in DICKEY-john or that he was involved in 
the evaluation and source selection process for this procurement.  Tr. 
at 16-47.  Seedburo did not challenge this individual's testimony 
during the hearing and, as noted previously, Seedburo filed no 
post-hearing comments.