BNUMBER: B-281241.2
DATE: January 25, 1999
TITLE: Ritchie Sawyer Corporation, B-281241.2, January 25, 1999
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Matter of:Ritchie Sawyer Corporation
File: B-281241.2
Date:January 25, 1999
Thomas J. Ritchie for the protester.
Calvin D. Trowbridge III, Esq., U.S. Trade and Development Agency, for
the agency.
Robert C. Arsenoff, Esq., and Paul I. Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest against agency technical evaluation is denied where protester
merely disagrees with the agency evaluators' conclusions, the
reasonableness of which are supported by the record.
DECISION
Ritchie Sawyer Corporation (RSC) protests the award of a contract to
Ghenene & Associates under request for proposals (RFP) No.
TDA-98-Q-064, issued as a total small business set-aside by the U.S.
Trade and Development Agency (TDA) for a program audit of a central
African grant which had been awarded in 1995 to perform a feasibility
study to develop a cellular/telecommunications switching system, and
of a subsequent follow-up contract to a U.S. company. The protester
primarily alleges that the agency failed to properly consider the
protester's low price in making the award determination and otherwise
misevaluated the protester's technical proposal.
We deny the protest.
The RFP, issued on August 6, 1998, contemplated the award of a
fixed-price contract for a program audit to be completed by January
30, 1999. Award was to be made to the offeror whose technically
acceptable proposal offered the technical/price relationship that was
determined to be most advantageous to the government. RFP sec. M.2, at
29. The solicitation further provided that price was "secondary to
technical" and that award would not necessarily be made to the
lowest-priced offeror. Id. Offerors were cautioned that they should
submit initial proposals on their most favorable terms as award might
be made without discussions. Id.
Technical merit was to be evaluated using two factors: (1) Company
and Engagement Team Qualifications (up to 80 points); and (2) Proposal
(up to 20 points). These factors were subdivided into weighted
subfactors. The Qualifications factor was divided as follows: (a)
education, training and auditing;
(b) demonstrated experience in providing accounting, auditing and
management services; (c) education and training in telecommunications
systems engineering;
(d) demonstrated international business experience with an emphasis on
African business experience; and (e) demonstrated editorial
experience. The Proposal factor was divided as follows: (a)
demonstration of a clear understanding of the scope of the contract,
demonstration of the qualifications of the company and staff, and full
description of the proposed approach and procedures for completing the
program audit; and (b) demonstration through the writing of a well
written proposal that offeror is capable of delivering a high quality
final report. RFP sec. M.1, at 28.
The RFP required the submission of a detailed employee biographical
data sheet for each individual proposed to directly perform under the
contract. RFP sec. J.1, at 20.
Also, the proposal instructions prescribed the submission of a table
detailing and demonstrating each team member's experience in providing
services similar to those for the contract to be awarded; in
particular, the table required offerors to identify the member's
assignment worked, the contract under which it was worked, the
specific tasks performed and the hours worked and date of engagement.
RFP sec. L.7, at 26.
Six proposals were received by the August 27 closing date.
Evaluations were conducted, as a result of which the following
consensus assessment was reported on August 31:
Subfactor ScoresTotal Tech. Price
Offeror 1(a) 1(b) 1(c) 1(d) 1(e) 2(a) 2(b)
Ghenene 15 19 14 18 10 14 5 95 $ 52,750
Offeror A 14 19 13 17 9 13 5 90 $135,907
Offeror B 14 19 14 12 9 13 5 86 $157,580
Offeror C 13 14 12 17 8 10 2 76 $ 59,300
RSC 13 16 0 0 4 7 2 42 $ 38,410
Offeror D 12 15 0 0 0 1 1 29 $ 57,261
Agency Report, Tab 9.
In her September 14 award analysis, the contracting officer (CO)
stated:
The lowest [priced] proposal from [RSC] was not technically
acceptable and promised to add required expertise if awarded.
Though this is a fixed price contract, it is not inconceivable
that this contractor could ask for additional funding to
successfully complete the scope of work required to TDA's
satisfaction. Even if no additional funding was granted,
considerable time would most likely be lost in bringing the
report up to TDA's expectations for this work.
Agency Report, Tab 10. In addition, the CO "determined that the
Ghenene bid of $52,750 was the lowest [priced] technically acceptable
offer." Id. Award was subsequently made to Ghenene and, following a
debriefing, RSC filed this protest.
In its protest, RSC challenges what it terms the technical/price
"tradeoff" represented by the award to Ghenene based on its
higher-ranked, higher-priced proposal; in this regard, the protester
argues that the agency failed to give proper consideration to RSC's
low price. RSC also challenges the evaluation of its own proposal in
various respects.
With respect to the challenge to the "tradeoff," while the material
prepared for the cover letter to the agency report suggests that some
consideration was given to the significance of RSC's lower price, the
contemporaneous record is clear that no preaward tradeoff analysis
transpired. What the agency in fact concluded was that, as quoted
above, the RSC proposal "was not technically acceptable." Because,
consistent with section M.2 of the RFP, technical acceptability was a
prerequisite to any award, if RSC's proposal was reasonably determined
to be unacceptable, RSC could not properly have been considered for
the award irrespective of its price. A proposal that is technically
unacceptable cannot be considered for award, even where it is the
lowest-priced proposal and thus would offer cost savings to the
government. Spectrum Controls Sys., Inc., B-275505, Feb. 27, 1997,
97-1 CPD para. 89 at 3-4. Because Ghenene offered the lowest priced
technically acceptable proposal, there was no need for a
price/technical tradeoff, and the contemporaneous record shows that
none occurred.
Accordingly, the appropriate question here is whether the record
supports the agency's finding that RSC's proposal was technically
unacceptable. The evaluation of technical proposals is a matter
within the discretion of the contracting agency since the agency is
responsible for defining its needs and the best way of accommodating
them. In reviewing an agency's evaluation, we will not reevaluate
proposals, but instead will examine the agency's evaluation to ensure
it was reasonable and consistent with the solicitation's stated
evaluation criteria. An offeror's mere disagreement with the agency
does not render the evaluation unreasonable. Teleport Communications
Group, B-277926.2, Sept. 17, 1998, 98-2 CPD para. 72 at 3.
Although the evaluators found that RSC had good accounting and audit
experience, they found that the proposal did not provide details
regarding education in telecommunications systems engineering. They
further found that RSC's proposal lacked a demonstrated international
business experience, particularly on telecommunications projects.
They downgraded the proposal for failing to identify a professional
editor, failing to provide the required detailed biographic data
sheets and merely providing cursory biographical material, and failing
to provide a detailed table of experience as required by the RFP.
Finally, they found that the technical proposal merely parroted the
RFP's scope of work without demonstrating an understanding of what was
required or clearly demonstrating RSC's approach to the project.
With respect to telecommunications systems education and training, RSC
concedes that its proposed engineer has no such credentials, takes
issue with the need for such specific expertise, and argues that,
should the need arise during performance for a trained engineer with
this expertise, the firm has the ability to retain an expert. With
respect to international business experience, and African experience
in particular, the protester refers to its conceded lack of such
experience and argues that this requirement is minor in nature insofar
as most of the work will not be performed overseas.
With respect to the failure to identify a professional editor in its
proposal, RSC again characterizes this as minor and notes that its
management proposal stated that it would hire an editor upon contract
award. With respect to the failure to submit detailed biographical
data sheets, RSC essentially disagrees with the agency's conclusion
that the materials submitted in lieu of the sheets were insufficiently
detailed.
With respect to the failure to submit a detailed table of experience,
RSC simply points out that, as it stated in its proposal, a lack of
time precluded it from gathering the necessary information to complete
the table and that, also as the proposal stated, the firm would be
prepared to do so if retained in the competitive range for further
consideration. Finally, RSC does not deny that its proposal parroted
the RFP's scope of work.
If we view the protester's objections as essentially taking the
position that the RFP requirements which it failed to satisfy were
unnecessary or overly restrictive, RSC's post-award protest is not
timely because protests based on alleged improprieties in a
solicitation which are apparent prior to the time set for receipt of
initial proposals must be filed prior to that time. Bid Protest
Regulations, 4 C.F.R. sec. 21.2(a)(1) (1998).
In the alternative, RSC's assertions merely reflect its disagreement
with the evaluators regarding the significance of the shortcomings in
RSC's proposal. RSC does not dispute that the requirements that its
proposal failed to satisfy were clear, with assigned weights in the
RFP. Rather, the protester simply characterizes the conceded and
obviously material shortcomings in its proposal as minor in nature, or
as matters that it could later rectify; this subjective disagreement
simply does not provide any basis to conclude that the agency
evaluation was unreasonable. Teleport Communications Group, supra.
The protest is denied.
Comptroller General
of the United States