BNUMBER:  B-281028.2 
DATE:  December 29, 1998
TITLE: Mid-Atlantic Service & Supply Corporation, B-281028.2,
December 29, 1998
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Matter of:Mid-Atlantic Service & Supply Corporation

File:     B-281028.2

Date:December 29, 1998

Wayne Staley for the protester.
Rumu Sarkar, Esq., Agency for International Development, for the 
agency.
Marie Penny Ahearn, Esq. and David Ashen, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that agency failed to give sufficient credit in best value 
determination to protester's allegedly superior technical proposal and 
offer of longer-than-required warranty coverage period is denied where 
solicitation provided for technical evaluation on a pass/fail basis 
and, although warranty was a separate evaluation factor equal in 
weight to price and past performance, the agency reasonably determined 
that protester's longer warranty coverage was not worth the higher 
price (47.7 percent higher) of its proposal.

DECISION

Mid-Atlantic Service & Supply Corporation protests the award of a 
fixed-unit-price, indefinite-quantity contract to CHB Industries, Inc. 
under request for proposals (RFP) No. M/OP-98-1668, issued by the 
Agency for International Development (AID) for installation of 
security/safety window film in the AID-occupied portions of the Ronald 
Reagan Building in Washington, D.C.  Mid-Atlantic argues that the 
award to CHB was improper because (1) the agency failed to make a best 
value determination consistent with the RFP and (2) the awardee cannot 
meet certain specifications which allegedly are impossible to meet.    

We deny the protest.

The solicitation provided for award to the responsible and responsive 
offeror whose proposal represents the best value to the government 
after consideration of past performance, price, and warranty coverage.  
RFP  sec.  M.2 at 37.[1]  Of relevance here, the RFP provided that "[i]f an 
offeror submits an alternate warranty in excess of the required seven 
year coverage, the Government may take such warranty into 
consideration when determining best value."  RFP  sec.  M.4.c at 38.  The 
solicitation further provided that "[t]he Government will determine 
the responsiveness of an offer on a pass/fail basis.  An offer is 
responsive when it manifests assent to all the terms and conditions of 
this . . . RFP . . . , which includes the . . . statement of work" 
(SOW).  RFP  sec.  M.3 at 37.

Four offerors submitted proposals on or before the closing time for 
receipt of proposals on August 28, 1998.  After evaluation, the 
offerors were ranked in the following order, from best to least value:

     Offeror   Performance    Price     Warranty

     CHB       Good to excellent$ 95,150Meets minimum
     Offeror A Average to good$119,100  Exceeds minimum
     Mid-AtlanticGood to excellent$140,520Exceeds minimum
     Offeror B Excellent      $141,840  Meets minimum

AID determined that CHB's offer met all technical requirements and 
offered the best value to the government.  Award was made to CHB on 
September 14, and this protest to our Office followed on September 25.

Mid-Atlantic argues that the agency improperly made award on the basis 
of the low-priced, technically acceptable proposal without regard to 
(1) the RFP provision for consideration of warranty coverage in the 
best value determination, (2) the RFP direction that "[t]he contractor 
shall mount the protective film to the window using the methodology 
providing the greatest security and longest guarantee," RFP SOW,  sec.  C.4 
at 5, and (3) oral advice of agency personnel to "offer the best 
system available."  Mid-Atlantic Comments of November 4, 1998, at 2.  
While recognizing that its price was third low, the protester claims 
that its higher price resulted from its offer of certain 
enhancements--i.e., a window film warranty of 12 years rather than the 
required 7 years and the strongest available caulking for the window 
film mounting (under the technical adhesive requirements)--which the 
agency improperly failed to consider in the evaluation; according to 
the protester, if its enhancements had been considered, its offer 
would have been determined the most advantageous, even with the price 
premium.[2]  

Source selections officials have the discretion to make 
price/technical tradeoffs and the extent of such tradeoffs is governed 
only by the test of rationality and consistency with the evaluation 
criteria.  Best Temporaries, Inc., B-255677.3, May 13, 1994, 94-1 CPD  para.  
308 at 3.  Even where a source selection official does not 
specifically discuss the price/technical tradeoff in the selection 
decision document, we will not object if the tradeoff is supported by 
the record.  Kendall Auto Auction, Inc., B-252474.3, June 10, 1994, 
94-1 CPD  para.  386 at 5.    

Based on our review of the record, we find that the price/technical 
tradeoff is reasonable and consistent with the RFP.  Contrary to the 
protester's argument that only price was considered in the award 
determination, the record shows that in addition to price, the 
non-price factors of past performance and warranty also were 
considered.  Mid-Atlantic's and CHB's offers were rated equal on past 
performance, both receiving a "good to excellent" rating, while on 
warranty Mid-Atlantic's offer was rated as "exceeds minimum" and CHB's 
offer was rated "meets minimum."  The record indicates that CHB's 
offer was determined to represent the best value to the government, 
based on its demonstrated positive past performance history, 
acceptable warranty, and low price.  Negotiation Memorandum, September 
14, 1998, at 5.  While the contemporaneous evaluation record does not 
specifically address this point, the agency reports that it determined 
that the additional 5 years of  warranty coverage offered by 
Mid-Atlantic was not worth the higher price ($45,370 or 47.7 percent 
higher) of Mid-Atlantic's proposal.  Agency Report at 7.  The 
protester has not shown this conclusion to be either unreasonable or 
inconsistent with the RFP evaluation scheme (which in effect assigned 
equal weight to warranty, past performance and price).
    
Although Mid-Atlantic argues that evaluation credit should have been 
given to its allegedly superior adhesive/caulking in accordance with 
the general SOW direction to mount the film using a methodology 
providing the greatest security and longest guarantee, the RFP 
specifically provided that the technical requirements would be 
evaluated on a pass/fail basis.  To the extent that the protester 
believes that the agency personnel misled the firm concerning the best 
value determination, oral advice, even if given, does not operate to 
amend the solicitation or otherwise legally bind the agency.  Nomura 
Enter., Inc., B-271215, May 24, 1996, 96-1 CPD  para.  253 at 4; Materials 
Management Group, Inc., B-261523, Sept. 18, 1995, 95-2 CPD  para.  140 at 
3-4.  Consequently, the protester's reliance on any oral advice was at 
its own risk.
 
Next, Mid-Atlantic argues that it is impossible for CHB to meet the 
"break/safe" requirements that the window film completely contain all 
window glass fragments against a blast generating up to either 4 or 10 
pounds of pressure per square inch (PSI), depending on the type of 
film installation to the window.  RFP SOW,  sec.  C.3.d(4).  According to 
the protester, "no company has test results that shows they pass the . 
. . 10 PSI and 4 PSI requirements. . . .  We contend that meeting the 
test requirements called for in the specification is not possible. . . 
.  [N]o bidder can produce the required test results and therefore 
none can meet the requirements."  Comments at 5.  

Although presented as a challenge to the agency's determination that 
CHB met the RFP requirements, the crux of Mid-Atlantic's position is 
that the specifications are impossible for any offeror to meet.  This 
is essentially a challenge to the specifications as stated in the RFP, 
which the protester previously protested to our Office, and we 
dismissed as an untimely basis of protest because it was filed after 
the closing date for receipt of initial proposals.  Mid-Atlantic 
Commercial Window Shield, B-281028, Sept. 16, 1998, 98-2 CPD  para.  ___; 
see 4 C.F.R.  sec.  21.2(a)(1) (1998); Fraser-Volpe Corp., B-237617, Mar. 
12, 1990, 90-1 CPD para.  263 at 3.  This basis for protest remains 
untimely.[3]  In any case, even if neither offeror satisfied the 
requirements at issue, it appears that both offerors were treated 
equally, i.e., neither proposal was rejected on this basis.  Under 
these circumstances, we find no basis for sustaining Mid-Atlantic's 
protest.  See C3, Inc., B-233742.9, Mar. 1, 1991, 91-1 CPD  para.  230 at 9. 

The protest is denied.

Comptroller General 
of the United States

1. Since the RFP did not assign relative weights to the evaluation 
factors, it must be presumed that they were of equal weight.  
Forestry, Surveys & Data, B-276802.3, Aug. 13, 1997, 97-2 CPD  para.  46 at 
2 n.1.

2. The relevant adhesive requirement is for film to be installed using 
a 100-percent polymer-based construction silicone of a minimum 5/16 
bead and tensile strength of 20 pounds per square inch (PSI).  RFP, as 
amended,  sec.  C.4.  While the protester contends that "there is no 
caulking currently capable of meeting the . . . requirement," it 
states that it proposed "the best and strongest construction caulking 
material on the market."  Protest at 2.  The agency determined that 
Mid-Atlantic met the requirement.  AID Evaluation Documents at 2.

3. While Mid-Atlantic states that it objected to the specifications in 
its proposal, this does not constitute a timely pre-closing protest to 
the agency, since there is no requirement that an agency open or read 
proposals on or before the closing date.  Tower Corp., B-254761.3, 
Mar. 8, 1994, 94-1 CPD  para.  186 at 4.