TITLE:   Opti-Lite Optical, B-281693.2, July 15, 1999
BNUMBER:  B-281693.2
DATE:  July 15, 1999
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Opti-Lite Optical, B-281693.2, July 15, 1999

Decision

Matter of: Opti-Lite Optical

File: B-281693.2

Date: July 15, 1999

Jeffrey L. Sachs for the protester.

Phillipa L. Anderson, Esq., Merilee D. Rosenberg, Esq., and Philip Kauffman,
Esq., Department of Veterans Affairs, for the agency.

Linda C. Glass, Esq., and Paul I. Lieberman, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Where General Accounting Office (GAO) sustained a protest against a
contract award based on the inadequacy of the agency's documentation of its
price/technical tradeoff analysis and recommended that the agency perform
and document a proper tradeoff analysis, subsequent protest alleging that
the reevaluation was improper because the agency used the original
evaluators is denied. Where an agency's corrective action involves
reevaluating proposals, there is no requirement that the evaluators be
replaced, and the corrective action recommendation did not call for such
replacement.

2. In reevaluating proposals pursuant to GAO recommendation, contracting
agency properly evaluated proposals in accordance with the solicitation
criteria and made a documented award determination based on a reasonable
tradeoff; this award decision did not involve a matter of responsibility
which would have been subject to the Small Business Administration
certificate of competency procedures.

DECISION

Opti-Lite Optical protests the award decision of the Department of Veterans
Affairs (VA) under request for quotations (RFQ) No. 663-56-98, following
VA's reevaluation of proposals under that solicitation. Opti-Lite had
earlier protested VA's award of a contract to Classic Optical Laboratories,
Inc. under this RFQ, and our Office sustained that protest. Opti-Lite
Optical, B-281693, Mar. 22, 1999, 99-1 CPD para. 61. In response to our
decision, the VA reevaluated the proposals using the original technical
evaluation committee and determined that Classic's proposal represented the
best value to the government. Opti-Lite protests that VA's reevaluation was
improper because the original evaluators were used and because the VA failed
to refer the matter to the Small Business Administration (SBA) for review
under its certificate of competency (COC).

We deny the protest.

The solicitation contemplated the award of an indefinite-delivery,
indefinite-quantity requirements contract to supply prescription eyeglasses
on an as-needed basis to listed participating VA facilities. [1] The stated
technical evaluation criteria consisted of methodology of approach,
personnel qualifications and past performance. RFQ Part IV at 103. The
solicitation further provided that technical and past performance combined
were approximately equal in weight to price. Id. at 105.

In our earlier decision, we sustained the protest on the basis that VA's
source selection decision was purely mechanical and not adequately
documented, and recommended that VA perform and document a proper tradeoff
analysis. We also determined that the agency's contemporaneous concern about
Opti-Lite's price reasonableness was in reality a concern about its
responsibility and recommended that if the agency found Opti-Lite
nonresponsible, the matter was for referral to the SBA for review under its
COC procedures because Opti-Lite was a small business.

In response to our recommendation, VA reconvened the original evaluation
panel and conducted a de novo technical evaluation of all proposals. The
agency used the same price evaluation that was performed initially. The
reevaluation resulted in the following new ratings for the two proposals (of
the total of six) at issue here:

Offeror Technical Price Total

Classic 91 90 181

Opti-Lite 53 100 153

Award Memorandum (Apr. 8, 1999).

The agency found Classic's technical approach to be significantly superior
to that of all other offerors. The agency concluded that Classic provided an
excellent plan to furnish a high quality product and fitting service and
demonstrated extensive experience in filling high volume contracts outside
of its geographical area. Classic provided detailed information on which
staff and resources would be utilized to meet the VA's needs. It provided a
detailed organization chart that exhibited both depth and experience of key
individuals. It provided detailed information demonstrating that critical
equipment and suppliers were in place and exhibiting long-term working
relationships with key suppliers. It provided detailed subcontractors'
information for fitting service, which demonstrated that the subcontractors
were licensed dispensing opticians with extensive experience in this type of
work. Id. at 2.

On the other hand, the agency determined that Opti-Lite's proposal failed to
provide a plan to demonstrate how it planned to perform the work. The
evaluators found that Opti-Lite's proposal demonstrated a lack of depth and
qualifications of key staff. For example, Opti-Lite provided information for
an individual who has an education as an optician, but it was unclear if
this individual was a licensed dispensing optician. Opti-Lite provided no
organizational chart, although it did provide information for five key
individuals. However, Opti-Lite failed to demonstrate whether these key
individuals had relevant on-the-job training. Additionally, the evaluators
found that Opti-Lite did not demonstrate any experience in high volume
contracts nor did it appear that any of its contracts were outside its
geographical area. Id. at 2-3.

Based on this reevaluation, the agency determined to award the contract to
Classic on the basis that Classic's proposal was more advantageous because
it was superior to Opti-Lite's in the areas of methodology, approach,
management, personnel and experience. The agency determined that these
advantages were critical to meeting the VA's needs and were worth the
associated price premium. Id. at 3. Award was made to Classic on April 13.
On April 16, Opti-Lite requested a debriefing and by letter dated April 21,
1999, the contracting officer sent a written debriefing by certified mail to
Opti-Lite. This protest was filed with our Office on April 23.

Opti-Lite challenges the reevaluation of its proposal on the basis that the
agency's use of the original technical evaluation committee without
requiring new data to reevaluate technical proposals was prejudicial to
Opti-Lite. Opti-Lite essentially argues that the contracting officer and
evaluation committee cannot conduct an objective reevaluation. [2]

The details of implementing our protest decision recommendations for
corrective action are within the sound discretion and judgment of the
contracting agency. DynaLantic Corp., B-274944.5, Aug. 25, 1997, 97-2 CPD
para. 75 at 4. Our Office will not question an agency's ultimate manner of
compliance, so long as it remedies the procurement impropriety that was the
basis for the decision's recommendation. QuanTech, Inc., B-265869.2, Mar.
20, 1996, 96-1 CPD para. 160 at 2. In our decision, we recommended that the
agency perform and document a proper tradeoff analysis because the agency
failed to document the reasonableness of its tradeoff analysis and not
because of any finding of bias. Here, while Opti-Lite questions whether the
same evaluation committee that conducted the initial inadequate evaluation
could perform a fair reevaluation, where an agency's corrective action
involves reevaluating proposals, there is no requirement that the reviewing
personnel be replaced, Arco Management of Washington, D.C., Inc.,
B-248653.2, Oct. 13, 1992, 92-2 CPD para. 241 at 2, and Opti-Lite has provided
no evidence that these individuals acted improperly in the reevaluation.

Government officials are presumed to act in good faith and, where a
protester contends that contracting officials acted in bad faith, it must
provide convincing proof since this Office will not attribute unfair or
prejudicial motives to procurement officials on the basis of inference or
supposition. ACS Sys. & Eng'g, Inc., B-275439.3, Mar. 31, 1997, 97-1 CPD para.
126 at 5. Opti-Lite has provided no evidence to support its speculation in
this regard. In fact, Opti-Lite does not specifically challenge the agency's
reevaluation of its technical proposal or the agency's determination that
Opti-Lite failed to demonstrate an understanding of the VA's needs and
failed to provide evidence of how it intended to provide service to the VA's
patients, nor has Opti-Lite indicated how being provided with an opportunity
to provide additional data or information would have altered this
assessment. In short, there is no basis to question the manner in which the
agency conducted its reevaluation in response to our recommendation.

Opti-Lite next argues that the agency disregarded our recommendation to have
the SBA perform a COC evaluation. Opti-Lite contends that the agency's
initial evaluation placed great emphasis on the VA's concerns about
Opti-Lite's ability to perform at its proposed price and objects to the fact
that this issue was ignored by the agency in its reevaluation.

Opti-Lite misconstrues the decision language with respect to possible
referral of the matter to the SBA for a COC determination. In our initial
decision, we noted that the contemporaneous analysis of the contracting
officer demonstrated that the contracting officer had concerns about
Opti-Lite's financial capability to perform the contract at its low price,
which in reality concerns Opti-Lite's responsibility. We recommended that if
the agency believed that Opti-Lite was nonresponsible, the matter should be
referred to the SBA for COC consideration. In its reevaluation, the agency
performed a de novo evaluation of the proposals and found weaknesses in
Opti-Lite's proposed methodology and approach, as well as in its
documentation of the qualifications of its personnel. Additionally, the
contracting officer used experience and past performance to assess the
comparative ability of the offerors to manage a high volume multi-state
contract. The contracting officer evaluated Classic's past performance and
experience more highly than Opti-Lite's because Classic demonstrated the
kind of experience necessary to perform the requirement. An agency may use
traditional responsibility factors, such as experience or past performance,
as technical evaluation factors, where, as here, a comparative evaluation of
those areas is to be made. Dynamic Aviation--Helicopters, B-274122, Nov. 1,
1996, 96-2 CPD para. 166 at 3. Accordingly, the reevaluation was not tantamount
to a finding of nonresponsibility and consequently referral to the SBA for
COC consideration was not necessary, nor was it called for by the terms of
our recommendation. The record shows that the agency simply determined that
Opti-Lite's proposal was significantly weaker technically than Classic's, as
a result of which Classic's proposal was found to represent the best value,
notwithstanding the associated price premium.

The current tradeoff analysis is fully documented and the record supports
the selection of Classic as reasonable and consistent with the selection
criteria in the solicitation. Classic's price was second low overall, next
to Opti-Lite's, and its proposal was ranked first technically. Given that
the solicitation provided for equal consideration of price and technical
factors, the record contains no basis for concluding that the selection of
Classic's much higher-rated proposal over Opti-Lite's somewhat lower-priced
one was either unreasonable or inconsistent with the solicitation. [3] Dawco
Constr., Inc., B-278048.2, Jan. 2, 1998, 98-1 CPD para. 32 at 5.

The protest is denied.

Comptroller General

of the United States

Notes

1. Further details concerning the procurement are set forth in our earlier
decision. As noted there, while the solicitation is denominated as an RFQ,
the agency treated it as a negotiated procurement and the entire record,
including the RFQ provisions, speaks in terms of the submission and
evaluation of proposals/offers and the resulting award of a contract. For
the sake of consistency, we continue in this decision to use the negotiated
procurement terminology.

2. In its initial submission, Opti-Lite argued that there was no
contemporaneous evaluation documentation and that the agency refused to
provide it a debriefing. In its report submitted in response to the protest,
the agency responded to these allegations. Since the protester's comments
did not respond to the agency's explanation we deem those allegations
abandoned. TMI Servs., Inc., B-276624.2, July 9, 1997, 97-2 CPD para. 24 at 4
n.3.

3. Opti-Lite also complains that the agency failed to issue a stop work to
Classic after Opti-Lite filed this protest. Our Office does not review the
propriety of an agency's determination to proceed with performance of a
contract notwithstanding the pendency of a protest. Mark Group Partners and
Beim & James Properties III, Joint Venture, B-255762 et al., Mar. 30, 1994,
94-1 CPD para. 224 at 5-6.