BNUMBER: B-280113
DATE: August 11, 1998
TITLE: RONCO Consulting Corporation, B-280113, August 11, 1998
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Matter of:RONCO Consulting Corporation
File: B-280113
Date:August 11, 1998
Stephen J. Edelmann for the protester.
Robert A. Mangrum, Esq., and Jason I. Hewitt, Esq., Winston & Strawn,
for Chemonics International, Inc., an intervenor.
Deborah James, Esq., U.S. Agency for International Development, for
the agency.
Jacqueline Maeder, Esq., and Paul Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Where the two highest-scored technical proposals, which received
scores within 5 percentage points of each other, were reasonably
determined to be essentially equal technically, award to the offeror
which submitted the lower cost, lower scored proposal is
unobjectionable notwithstanding the solicitation's emphasis on
technical merit over cost.
DECISION
RONCO Consulting Corporation protests the award of a contract to
Chemonics International, Inc. under request for proposals (RFP) No.
624-97-005, issued by the U.S. Agency for International Development
(USAID) for technical services to assist the USAID/Mali Mission in
increasing production, processing and trade in key economic
sub-sectors.[1] RONCO alleges that the contracting officer improperly
determined that the proposals of RONCO and Chemonics were technically
equivalent and made award to Chemonics primarily on the basis of its
low cost. RONCO also contends that the agency was biased in making
its award determination.
We deny the protest.
The RFP, issued on June 24, 1997, contemplated the award of a
cost-plus-award-fee performance-based contract for short- and
long-term technical assistance support to and provision of
non-academic in-country and third-country workshops, conferences,
training, and observation tours; management of sub-contracts;
administration of necessary commodity procurement and/or logistics;
and all necessary administrative, financial and logistic support
necessary to achievement of performance measures in the contract for a
4.5-year period.
Section M of the RFP provided that the government would evaluate
proposals by assigning numerical ratings to each proposal under the
following four factors worth a total of 1,000 points: (1) program
strategy (300 points); (2) management plan (300 points); (3) work plan
and performance plan (250 points); and (4) resources, experience and
capability (150 points). The RFP stated that cost would not be
point-scored, but would be an important factor in the evaluation. In
particular, the RFP advised that "[t]echnical competence is
significantly more important than cost, however, estimated cost is an
important factor and its importance as an evaluation factor will
increase as the degree of equality of technical competence between
proposals increases." RFP sec. M.3. Award was to be made to the
responsible offeror whose proposal was most advantageous to the
government in accordance with the evaluation criteria set forth in the
RFP. RFP sec. M.4(b).
Five offerors, including RONCO and Chemonics, submitted proposals by
the August 29 closing date. A four-member technical evaluation
committee (TEC) rated the initial proposals by assigning numerical
scores under each evaluation factor in accordance with section M of
the RFP. Narrative discussions of each offeror's strengths and
weaknesses in each of the four evaluation factors were prepared.
RONCO's initial technical proposal received 3,420 points and was
ranked first of the five proposals.[2] Chemonics initial technical
proposal received 3,150 points and was ranked second.
Three proposals, including RONCO's and Chemonics's, were included in
the competitive range. USAID conducted written discussions and
conference calls with each of these three offerors. Responses to
discussions were due by November 25. The responses were reviewed by
the agency evaluators and the TEC submitted a 33-page memorandum which
reviewed in detail the technical proposals for the three offerors in
the competitive range and provided explanatory details concerning the
strengths and weaknesses of the competing proposals. Based on the
evaluation memorandum and conversations with the TEC, the contracting
officer made a determination that the three competitive range offerors
were each technically competent to perform the required work.
By letter dated March 6, USAID requested final offers by March 20.
Because offerors had previously been given the opportunity to revise
their technical proposals and because all offerors were determined
technically competent to perform the contract, the March 6 letters
focused on the offerors' cost proposals. The competitive range
offerors submitted final proposals which were reviewed by the TEC.
The technical scores and final prices for the competitive range
offerors were as follows:
Offeror Technical Score Price
RONCO 3,555 $15,502,323
Chemonics 3,385 $15,003,501
Offeror A 3,355 $15,359,110
In response to an inquiry from the contracting officer, the TEC stated
that it did not have a preference among the offerors; all three were
capable of performing the contract. Although there was no explicit
determination that the three proposals were technically equal, the
record refers to "technical parity" and indicates that cost became the
determining factor in the source selection. Memorandum of Negotiation
at 6, 11. After conducting a cost analysis, as a result of which
Chemonics's and RONCO's proposed costs were both found to be
reasonable, complete, credible and realistic, the contracting officer
determined that, based on its lowest cost, Chemonics's proposal
offered the best value to the government. USAID notified offerors of
the award to Chemonics, and after a May 13 debriefing, RONCO protested
to our Office.
RONCO argues that, given the solicitation's emphasis on technical
considerations over cost and in light of its proposal's higher
technical score, the selection of Chemonics's lower-rated proposal was
improper. The protester maintains that the "RFP ground rules were not
followed" and that "price became the sole determining factor for the
award." Protest at 1. RONCO does not challenge the technical
evaluation, simply asserting that technical competence was
significantly more important than cost, thus cost was to "play a minor
and insignificant secondary role in awarding a contract." Id. RONCO
points to its higher technical score and the 5 percent differential in
technical scores between the two proposals. RONCO contends that the
contracting officer used an incorrect .02 percent differential when
comparing the technical merit of proposals because the agency report
repeatedly uses the .02-percent figure.[3] The agency now concedes
that the .02 percent is erroneous. The protester asserts that the
incorrect differential "resulted in a clear misinterpretation as to
the closeness of those scores." Comments at 2. RONCO argues that its
5-percent point advantage over Chemonics "does not portray virtual
equality of the technical scores" and that the agency's decision "is
the direct opposite of what the RFP states." Id. at 1-2. RONCO also
alleges that the award decision was biased because the protester was
purportedly told during the debriefing that there was "substantial
pressure" on the contracting officer not to award follow-on contracts
to incumbent contractors.
Contrary to the protester's assertions, a finding of technical
equality need not be based on strict equality in terms of point
scores. The Gerard Co., B-260495, June 22, 1995, 95-1 CPD para. 290 at 2;
WB Inc., B-250954, Feb. 23, 1993, 93-1 CPD para. 173 at 3. The
significance of a given point spread depends upon all the facts and
circumstances surrounding a given procurement; the point scores
themselves are not controlling, reflecting as they do the disparate
subjective judgments of evaluators, but are useful as guides to
intelligent decision-making. Earle Palmer Brown Cos., Inc., B-243544,
B-243544.2, Aug. 7, 1991, 91-2 CPD para. 134 at 10. Proposals have
properly been viewed as essentially equal from a technical standpoint
notwithstanding scoring differentials between proposals of more than
15 percent. Lockheed Corp., B-199741.2, July 31, 1981, 81-2 CPD para. 71
at 6-9; see also Ogilvy, Adams & Rinehart, B-246172.2, Apr. 1, 1992,
92-1 CPD para. 332 at 5-6 (a difference of 6 percent found approximately
equal).
The record here supports a determination that the proposals were
essentially equal technically. Contrary to the protester's
contentions, there is no basis to conclude that the 170-point
difference in overall technical scores assigned the two proposals, by
itself, represents a finding by the TEC of RONCO's technical
superiority. Individual members of the TEC awarded RONCO's best and
final offer (BAFO) scores ranging from 840 to 930 and awarded
Chemonics's BAFO scores ranging from 770 to 960.[4] The evaluation
narratives show that both proposals, despite their distinct approaches
to meeting the RFP requirements, were viewed as presenting many
strengths and clear and thorough explanations for the majority of
issues. The TEC also found that RONCO did not fully address three
issues, and that Chemonics did not fully address four issues raised in
discussions. For example, the TEC felt that RONCO's response to a
question concerning its information and communications system was
unfocused and presented "a list of virtually everything possible that
can be done without presenting a methodical strategy for establishing
a market information system . . . ." Competitive Range Evaluation
Results Memorandum at 9. The TEC also found that while RONCO's BAFO
identified important policy areas, it did not "prioritize the policies
or provide a strategy for affecting policy changes. . . ." Id. at 11.
As for Chemonics's BAFO, the TEC remained unconvinced that Chemonics's
approach for acquiring local short-term technical assistance was
reasonable, id. at 13-14, and concluded that the BAFO did not
adequately identify opportunities that could be immediately exploited
given what is currently known about Mali's agribusiness sector. Id.
at 20. Finally, the contracting officer's record specifically notes
that the evaluators concluded that all three offerors in the
competitive range were qualified and capable of performing the work
and that the evaluators did not have a preference among offerors.
Memorandum of Negotiation at 4. As provided by the RFP, and contrary
to the protester's position that cost was of minor, secondary
importance, the importance of an offeror's price/cost component was to
"increase as the degree of equality of technical competence between
proposals increases." RFP sec. M.3. Thus, the solicitation expressly
recognized that cost could become the determining factor between two
proposals that were determined to be equal technically. Here, based
on the closeness of the technical point scores and the evaluation
narrative which reasonably supports a finding of technical equality,
award based on cost was proper and consistent with the RFP selection
criteria.
As to RONCO's belief that the contracting officer's mathematical error
"totally changed the technical outcome/cost outcome balance," Comments
at 2, because the contracting officer used the incorrect .02 percent
differential in making his award determination, the record does not
show that the contracting officer relied on the incorrect .02 percent
differential in the selection decision. Indeed, no percentage
differential between the proposals was given in the agency's
contemporaneous evaluation documents; rather, the agency's analysis
provides, as noted above, the strengths and weaknesses in each of the
competitive range proposals, the total point scores for each proposal
and the cost evaluation results. Further, the contracting officer has
acknowledged this mathematical error and stated that the 5 percent
differential in technical scores "does not change my conclusion that
there was no significant difference among the technical proposals in
the competitive range . . . ." Declaration of Contracting Officer at
1. On this record, we conclude that the award determination is
unobjectionable.
The protester also alleges agency bias against the protester, stating
that the contracting officer told the protester at its debriefing that
there was "substantial pressure" on him not to award a follow-on
contract to the incumbent. Protest at 3.
Government officials are presumed to act in good faith; we will not
attribute unfair or prejudicial motives to procurement officials on
the basis of inference or supposition. Triton Marine Const. Corp.,
B-250856, Feb. 23, 1993, 93-1 CPD para. 171 at 6. In addition to
producing credible evidence showing bias, the protester must
demonstrate that the agency bias translated into action that unfairly
affected the protester's competitive position. Id. RONCO has
furnished no credible evidence to support its allegation, and the
contracting officer denies having made the alleged statement. Because
the record supports the reasonableness of USAID's award determination,
it provides no basis upon which to question the motives of the
evaluators or the contracting officer.
Finally, the protester complains that, after award, Chemonics
substituted a new chief of party for the individual originally
proposed for this position and asserts that because this is a key
position, the agency should reopen the competition. Protester's July
17 Submission at 1.
Substitution of key personnel after contract award generally is not
objectionable unless the offeror intentionally misrepresented the
availability of personnel or was aware of the unavailability of
personnel during the procurement process. Unisys Corp., B-242897,
June 18, 1991, 91-1 CPD para. 577 at 3-4. For example, where the offeror
provides firm letters of commitment and the names are submitted in
good faith with the consent of the respective individuals (that is,
the offeror is not proposing personnel it has no intention of
providing), the fact that the offeror, after award, provides
substitute personnel does not make the award improper. Id.
RONCO explicitly states that it is not alleging that Chemonics engaged
in a "bait-and-switch" endeavor here. Protester's July 17 Submission
at 1. The record shows that the name of Chemonics's proposed chief of
party was submitted in good faith and that the awardee had no idea
that this individual would fail to follow through on his commitment.
Specifically, Chemonics's proposal contains a signed letter of
commitment from the proposed chief of party. The proposed chief of
party visited Chemonics's home office and was interviewed by members
of the awardee's management. The proposed individual also
participated in proposal preparation. A copy of a May 19, 1998 e-mail
message indicated that the proposed chief of party intended to attend
home office orientation on June 1. However, 2 days later, on May 21,
the proposed individual notified Chemonics that he would not serve as
chief of party under this contract and, on the following day,
Chemonics notified USAID that its proposed chief of party had
withdrawn. The agency has advised our Office that it has approved
Chemonics's proposed replacement. Nothing in the RFP prohibits
substitution of personnel, and by itself, substitution after contract
award provides no basis to conclude that the award was improper or
that the agency should reopen the competition where, as here, there is
nothing in the record to suggest that Chemonics acted in bad faith in
proposing its chief of party or misrepresented its proposed personnel.
Whether any substituted personnel are qualified to fill the vacated
position is a matter of contract administration which our Office will
not review. 4 C.F.R. sec. 21.5(a) (1998).
The protest is denied.
Comptroller General
of the United States
1. The contractor is to provide technical services to the Sustainable
Economic Growth (SEG) core team in meeting defined performance
increases in production/processing/trade in cereals, livestock, and
alternative commodities.
2. Scores assigned by each of the four TEC members were added to
arrive at a total score, out of a possible total score of 4,000.
3. RONCO's notes from its debriefing indicate that the agency stated
there that the difference in technical scores was 0.2 percent.
4. The four scores for RONCO's proposal were 840, 860, 925 and 930,
resulting in an average score of 888.75; the four scores for
Chemonics's proposal were 770, 800, 855 and 960, resulting in an
average score of 846.25.