BNUMBER:  B-281876; B-281876.2      
DATE:  April 22, 1999
TITLE: Marathon Watch Company Limited, B-281876; B-281876.2, April
22, 1999
**********************************************************************

DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective 
Order.  This redacted version has been approved for public release.

Matter of:Marathon Watch Company Limited

File:B-281876; B-281876.2     
        
Date:April 22, 1999

Claude P. Goddard, Jr., Esq., Kilcullen, Wilson and Kilcullen, for the 
protester. 
Philip F. Eckert, Jr., Esq., and Stephen Stastny, Esq., Defense 
Logistics Agency, for the agency. 
Adam Vodraska, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency selection of higher-priced vendor with excellent performance 
history instead of lower-priced vendor, whose performance reflected 
delivery delinquencies, was reasonable and consistent with the 
solicitation's evaluation scheme, which provided that if the vendor 
with the best past performance history did not offer the lowest price, 
the agency would make a tradeoff of price and past performance 
(including such considerations as inventory status and historical 
delivery problems), where there was a low inventory of the solicited 
item and the higher-priced vendor's better performance record 
indicated a lower performance risk.

DECISION

Marathon Watch Company Limited protests the issuance of a purchase 
order by the Defense Logistics Agency, Defense Supply Center Richmond 
(DSCR), to Stocker & Yale, Inc. (S&Y) under request for quotations 
(RFQ) No. SPO440-99-X-L121 for analog navigator wrist watches.[1]  
Marathon challenges the adequacy of the best value determination which 
resulted in the agency's issuance of the purchase order to S&Y.

We deny the protest.

DSCR issued the RFQ on November 30, 1998 for a quantity of 2,000 
watches, National Stock Number 6645-01-364-4042, a "critical 
application item."  RFQ at 1, 3-5.  Delivery of the watches was 
required within 60 days after the vendor's receipt of the order.  Id. 
at 1.  The RFQ stated that the watches must conform to specification 
MIL-W-46374F.  Id. at 3.  The RFQ contained the standard 
"Qualification Requirements" clause, as set forth in Federal 
Acquisition Regulation  sec.  52.209-1, which provides notice that award is 
limited to vendors offering products that have previously been tested 
and approved for inclusion on the applicable qualified products list 
(QPL).  Id. at 8-9.

The RFQ advised that the best value determination would be based on a 
comparative assessment of prices and past performance, which were 
equally weighted.  Id. at 18-19.  The past performance factor 
considered quality performance and delivery performance to be "of 
equal value."  Id. at 18.  If the vendor with the best past 
performance history did not offer the lowest price, the agency would 
make the appropriate tradeoff of price for past performance, and 
listed several considerations such as delivery schedule/inventory 
status and historical delivery/quality problems that could affect the 
tradeoff determination.  Id. at 19.

The RFQ, at 18-19, established that past performance would be 
evaluated in accordance with an automated best value model (ABVM).  
The ABVM is a computerized compilation of data on vendors' past 
performance under DSCR contracts that is converted into numeric scores 
for comparison by the agency for evaluation purposes.  An ABVM score 
ranging from 0 to a perfect score of 100 is assigned on a monthly 
basis to each vendor for a particular Federal Supply Class (FSC) (FSC 
score) and for performance in all FSCs with DSCR (Center score).  An 
offeror may have multiple FSC scores for different items but will have 
only one Center score, which is an average of the offeror's FSC 
scores.  The ABVM score, whether FSC or Center, is a combination of a 
vendor's delivery performance score and quality performance score.  
The ABVM score measures delivery performance during the preceding 15 
months, excluding the most recent 2-month period, and quality 
performance during the past 15 months, excluding the most recent 
month.  The delivery performance score reflects delinquent contract 
line items--shipments that are not shipped and/or received in their 
entirety by the delivery due date.

Negative delivery and quality performance data to be included in the 
ABVM score are made available to each vendor by the 15th day of the 
month on the DSCR electronic bulletin board.  The RFQ advised vendors 
that they could review their negative performance data and challenge 
its accuracy if they disagreed with it.  In this regard, the RFQ 
stated that "[t]he challenge period for the performance data used to 
calculate the ABVM score for a particular month ends the day before 
the new score becomes effective."  RFQ at 18.  Since the posted ABVM 
scores would be used in making best value award decisions, vendors 
were urged to file any challenges to the performance data in a timely 
manner.  The RFQ provided instructions on where and to whom challenges 
should be submitted.

The RFQ stated that in using the ABVM score for evaluating vendors' 
past performance, the agency would first evaluate each vendor using 
the FSC score for the solicited FSC in effect at the time quotations 
are evaluated.[2]  A vendor without an FSC score for that particular 
FSC would be evaluated on its Center score.

Both Marathon and S&Y submitted quotations to DSCR by the December 2, 
1998, due date.  Marathon submitted the lowest-priced quotation of 
$[DELETED].  S&Y quoted a price of $93,060.  In comparing the relative 
merits of the two quotations, the contracting officer consulted the 
ABVM ratings effective for Marathon and S&Y.  In his "Award 
Justification" document, the contracting officer determined that S&Y's 
higher-priced quotation was the best value based on the following:

     [S&Y] is unscored for the FSC.  S&Y's Center score is [DELETED]% 
     for five contract lines.  Marathon . . . has an FSC score of 
     [DELETED]% with delivery of [DELETED]% and quality of [DELETED]% 
     for 12 contract lines.  Marathon's Center score is [DELETED]% for 
     14 contract lines.  Center delivery for Marathon is [DELETED]% 
     for 14 contract lines.  Although Marathon has a quoted price that 
     is $[DELETED] or [DELETED]% less than [S&Y]'s, award will be made 
     to [S&Y] because of Marathon's poor delivery rating and higher 
     performance risk.  Marathon has demonstrated a poor record of 
     delivery for the FSC and center score which are both well below 
     the FSC average delivery of [DELETED]%.  The minimal savings in 
     price do not offset Marathon's higher performance risk.  [S&Y]'s 
     [ABVM] center score of [DELETED]% indicates an excellent past 
     performance record.
 
The contracting officer also stated in the "Award Justification" 
document that the price/performance tradeoff was influenced by the 
"required delivery schedule and inventory status" of the item.  
Specifically, the contracting officer noted that "[t]his is an Urgent 
and Compelling procurement with delivery required in 60 days," the 
item was out of stock, and there were numerous back orders waiting to 
be filled.  DSCR subsequently issued a purchase order for the watches 
to S&Y on January 4, 1999, in the amount of $93,060.

Marathon contests the agency's price/past performance tradeoff 
resulting in the issuance of the purchase order to S&Y because the 
agency allegedly departed from the RFQ's evaluation scheme by giving 
more importance to past delivery performance than to past quality 
performance or to price.  To support its contention that the agency 
placed undue weight on past delivery performance, Marathon points to 
the following statement made by the contracting officer in response to 
its inquiry about the issuance of the purchase order to S&Y:

     The trade-off in this urgent and compelling acquisition was 
     influenced by the delivery schedule/inventory status and 
     historical delivery problems. . . .  That trade-off consequently 
     gave more weight to delivery ratings as opposed to price.

Letter from Contracting Officer to Protester 2 (Jan. 11, 1999).   

Notwithstanding any imprecision in the wording of the contracting 
officer's statement, the record does not support the protester's view 
that DSCR used only delivery performance as a basis for comparison 
between Marathon and S&Y, or that the agency changed the relative 
importance of delivery performance under the evaluation scheme.

The mere fact that the contracting officer compared the ABVM delivery 
performance ratings of S&Y and Marathon does not mean he improperly 
allotted delivery performance more weight than was allowed under the 
RFQ's evaluation scheme.  Rather, as described above in the "Award 
Justification" document, the contracting officer considered delivery 
performance in the context of Marathon's and S&Y's overall ABVM past 
performance ratings (including quality performance) and prices.  
Because Marathon and S&Y had the same quality performance scores 
([DELETED]), it was the differences in their scores for delivery 
performance that distinguished their past performance.  Since S&Y had 
the best past performance history under the ABVM, but had not offered 
the lowest price, the contracting officer, as provided for by the RFQ 
at 19, determined that the appropriate tradeoff of price for past 
performance would include delivery schedule/inventory status and 
historical delivery problems.  The contracting officer decided that, 
given these tradeoff considerations, Marathon's lower price was not 
worth the increased performance risk associated with its past delivery 
delinquencies, and that award to S&Y, with a slightly higher price but 
an excellent performance history, was justified to ensure timely 
delivery and represented the best value to the government.  The 
contracting officer's conclusion was consistent with the RFQ's 
evaluation scheme and the discretion afforded the contracting officer 
in making the tradeoff decision.[3]  See Phillips Indus., Inc., 
B-280645, Sept. 17, 1998, 98-2 CPD  para.  74 at 5; USA Elecs., B-275389, 
Feb. 14, 1997, 97-1 CPD  para.  75 at 4.

The protester nonetheless argues that the agency had insufficient data 
on S&Y's past delivery performance record to make any valid comparison 
with Marathon's.  In this regard, the protester argues that S&Y has 
not established a history of meeting delivery dates for production 
runs (large quantities) of the watches, and that its deliveries of 
small quantities of other types of items do not support the agency's 
conclusion that S&Y has an excellent past performance record, or that 
it represented a lower performance risk than Marathon.

Even if, as Marathon contends, S&Y has not provided any watches under 
FSC 6645 to DSCR, and has only delivered small quantities of other 
items under other FSCs, the protester has failed to show that the 
agency's evaluation of S&Y's past performance was inconsistent with 
the RFQ's past performance evaluation scheme or that the agency 
unreasonably concluded that S&Y had an excellent past performance 
history.  While the RFQ states that vendors will first be evaluated 
using the FSC score for the solicited FSC, and that the contracting 
officer could consider the volume of business on which an FSC score is 
based "as a measure of confidence in the score's indication of 
performance risk," the RFQ also specifically contemplates that where, 
as here, a vendor such as S&Y does not have an FSC score for the item 
solicited, the vendor will be evaluated on its Center score.  RFQ at 
19.  As described above, a vendor's Center score includes its past 
performance score for all FSCs, including other types of items than 
the item solicited.  S&Y may have delivered only small quantities of 
these items, but its delivery performance score, under the ABVM, is 
based on contract lines, not on the quantities of the items shipped.  
Because all the items S&Y had delivered to DSCR under other FSCs were 
delivered or sent by their delivery due dates, S&Y properly received a 
Center ABVM score of [DELETED].

Moreover, notwithstanding Marathon's previous deliveries of large 
quantities of watches and related items, its delivery performance 
score for FSC 6645 was below the ABVM average, as was its Center 
delivery performance score.  Considering Marathon's lower-than-average 
delivery performance for this and other FSCs, and S&Y's excellent 
delivery performance for the FSCs comprising its Center score, the 
agency's comparison of the vendors' past performance was reasonable 
and consistent with the RFQ.[4]  To the extent Marathon protests that 
the RFQ's evaluation scheme should have favored a vendor's past 
delivery performance history for this particular FSC in terms of the 
item or quantity shipped, its protest of the ABVM past performance 
evaluation scheme after issuance of the purchase order is untimely.  
Bid Protest Regulations, 4 C.F.R.  sec.  21.2(a)(1) (1998); Rotair Indus., 
Inc., B-276435.2, July 15, 1997, 97-2 CPD  para.  17 at 4-5.

The protester points out that the ABVM data for Marathon did not 
include several contract lines that reflected timely deliveries of 
substantial orders of watches and other items.  Marathon maintains 
that had these contract lines been included in its ABVM data, as they 
should have been, its past performance score would have increased 
enough so that S&Y's price premium could no longer be reasonably 
justified.[5]  

DSCR concedes that the contract lines at issue should have been 
included in Marathon's ABVM data for the rating period but were 
inadvertently omitted.  DSCR has now revised Marathon's ABVM score to 
reflect this omitted data.  According to the agency, Marathon's FSC 
score would still be close to what its original score was, had the 
omitted lines been included in the first place.  Specifically, 
Marathon's FSC score increased from [DELETED] to [DELETED] (this 
includes an increase in Marathon's FSC delivery performance score from 
[DELETED] to [DELETED]).  The agency advises that Marathon's Center 
score increased from [DELETED] to [DELETED] (this includes an increase 
in Marathon's Center delivery performance score from [DELETED] to 
[DELETED]).  This adjusted Center score, however, includes not only 
the adjustment for the inadvertently omitted data, but also ABVM data 
regarding two additional contract lines from subsequent orders 
unrelated to the error.  As a result, while the exact impact of the 
erroneous omission is not clear, it cannot exceed the [DELETED]-point 
increase in the Center score.  The agency represents that the 
contracting officer reviewed Marathon's revised ABVM scores, but after 
comparing these new scores "to the other rating and the evaluation 
criteria . . . advised [that] he did not consider that the increases 
were significant enough to justify a change in his award decision, and 
that the decision [award to S&Y] therefore would remain the same."[6]  
Letter from Mr. Stastny to Mr. Goddard 2 (Mar. 26, 1999).

We disagree with Marathon's assertion that the contracting officer's 
reconsideration of his price/past performance tradeoff should be given 
no weight because it is a "redetermination prepared in the heat of an 
adversarial process," as we stated in our decision in Boeing Sikorsky 
Aircraft Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD  para.  
91 at 15.  There is nothing in the record here to support a conclusion 
that the resulting increase in Marathon's ABVM scores, standing alone, 
would alter the contracting officer's price/past performance tradeoff 
decision.  Instead, the resulting increase of less than [DELETED] 
points on a 100-point scale in both Marathon's FSC and Center scores 
is so small a change that it alone does not compel us to sustain 
Marathon's protest.  See Advanced Data Concepts, Inc., B-277801.4, 
June 1, 1998, 98-1 CPD  para.  145 at 5.  Although the almost
[DELETED]-point increase in Marathon's FSC and Center delivery 
performance scores (which are components of the FSC and Center scores, 
respectively) may not itself be de minimis, both Marathon's revised 
FSC ([DELETED]) and Center ([DELETED]) delivery performance scores 
remain below the Center average ([DELETED]) for delivery performance 
under this FSC.  As described above, Marathon's below-average delivery 
performance was determinative in the contracting officer's price/past 
performance tradeoff, and since Marathon's delivery performance is 
still below average, even with its revised ABVM scores, the 
contracting officer's conclusion that he still would have selected 
S&Y, rather than Marathon, is reasonable.

The protester also argues that in considering Marathon's revised ABVM 
scores, the contracting officer failed to take into account 
information provided by Marathon in a February 10, 1999 agency-level 
challenge to the inclusion of S&Y's watch on the QPL for alleged 
nonconformance with specification MIL-W-46374F.  According to the 
protester, the contracting officer's failure to consider this 
information, which it states has a direct bearing on S&Y's ability to 
deliver compliant products on time, renders his revised price/past 
performance tradeoff unreasonable.  This allegation is untimely.  Our 
Bid Protest Regulations do not contemplate the unwarranted piecemeal 
presentation of protest issues, and a protester may not introduce a 
new issue in its comments that it could have raised in its initial 
submission to our Office.  OHM Remediation Servs. Corp., B-274644 et 
al., Dec. 23, 1996, 97-1 CPD  para.  4 at 9.  The information forming the 
basis of Marathon's contention was apparently first known to the 
protester as early as December 23, 1998, the date on which it received 
a report from a consultant documenting the alleged deficiencies based 
on testing of one of S&Y's navigator watches.  The protester did not 
convey this information to DSCR until February 10, in its challenge to 
S&Y's QPL status,[7] or raise this allegation with our Office until 
April 7, in its comments in response to the contracting officer's 
revised tradeoff determination.  Since Marathon did not raise the 
allegation concerning S&Y's QPL status in its protests filed in our 
Office on January 12 and February 12, despite already knowing the 
basis for its allegation, and has offered no reason for the delay, we 
will not consider this new ground of protest.

Finally, Marathon contends that S&Y's ABVM delivery data does not 
support the agency's conclusion that S&Y "is capable of meeting a 
production requirement of 2,000 watches."  However, in making this 
assertion, Marathon appears to be challenging S&Y's responsibility, 
and the RFQ, at 19, advised that "ABVM scores shall not be used to 
make determinations of responsibility."  There is no indication that 
the agency used the ABVM scores for other than their intended 
purpose--for comparison of past performance among vendors.  The 
protester also asserts that the contracting officer failed to take 
into account Marathon's present ability to deliver the solicited 
watches on time.  The contracting officer did not question whether 
Marathon would be able to deliver the watches within 60 days or 
conclude that Marathon was not a responsible vendor.  Instead, the 
contracting officer, reasonably and consistently with the RFQ, 
considered in his tradeoff determination that Marathon's past delivery 
performance record (as reflected by the ABVM scores) presented an 
increased performance risk not worth its slightly lower price.

The protest is denied.

Comptroller General
of the United States

1. Marathon, a Canadian corporation, was joined in this protest by the 
Canadian Commercial Corporation (CCC), which endorsed Marathon's 
quotation.  Pursuant to the Defense Federal Acquisition Regulation 
Supplement (DFARS)  sec.  225.870, contracts with Canadian firms generally 
are to be made with the CCC, which then subcontracts performance of 
the contract to a specific firm.  However, where, as here, simplified 
acquisition procedures are used, the small purchase is handled 
directly with the Canadian firm, not through the CCC.  DFARS  sec.  
225.870-1(c)(3), 225.870-2(e).

2. The watches solicited here are in FSC 6645.

3. The protester disputes the urgency of the requirement but has 
failed to show that the agency improperly considered the requirement 
urgent at the time of the tradeoff determination.

4. Although Marathon maintains that the agency failed to consider the 
fact that some of its late deliveries were not significantly late, 
that some portions of these shipments were delivered on time, and that 
other shipments were delivered early, Marathon has not demonstrated 
that the agency was required to separately consider such factors 
beyond what was already accounted for in the ABVM system or that 
consideration of such factors was required by the RFQ's ABVM 
evaluation scheme.

5. The agency cites Dayton-Granger, Inc.--Recon., B-279553.3, Oct. 2, 
1998, 98-2 CPD  para.  90 to suggest that this protest ground should be 
dismissed as untimely because Marathon had a responsibility to 
contemporaneously check its ABVM scores to ensure the scores' 
accuracy.  As described above, the ABVM system provides vendors with 
information on the negative delivery data used to compute their scores 
and a procedure for challenging such negative data.  We held in 
Dayton-Granger that a protest challenging an ABVM score based on the 
agency's inclusion of erroneous negative data was properly dismissed 
as untimely where it was not filed prior to the closing time for 
receipt of offers.  Here, however, the agency omitted positive 
delivery data but the ABVM system apparently does not provide vendors 
with information on the positive data used to compute their scores or 
a procedure for bringing to the agency's attention the omission of 
such data.  Accordingly, we do not view this issue as untimely.

6. In response, the protester complains that it was unreasonable for 
DSCR to rely on the ABVM data because the ABVM system is materially 
deficient in that it omitted positive delivery data for Marathon and 
does not have the capability to take into account all positive data.  
We need not consider this contention here because DSCR, once informed 
of the omitted data, proceeded to revise Marathon's ABVM scores 
accordingly, and the contracting officer reconsidered his tradeoff 
decision based on this information.  Likewise, notwithstanding the 
technical inability of the ABVM system to record one particular 
on-time shipment for Marathon, the contracting officer nonetheless 
considered this shipment along with the other omitted data in 
reconsidering his tradeoff decision.  The agency states that it will 
flag Marathon's ABVM file so that Marathon is credited for this 
particular shipment in future ABVM evaluations, and, when feasible, 
actually include the data for this shipment in Marathon's ABVM score.

7. Because Marathon's agency-level challenge to S&Y's QPL status was 
not filed until a month after the issuance of the purchase order at 
issue here, and did not specifically protest the qualification of 
S&Y's watch for this purchase order (raising instead a blanket 
challenge to any potential contract award to S&Y for this type of 
watch), we do not construe the February 10 challenge as a timely 
agency-level protest of the issuance of the purchase order to S&Y.