TITLE:   American Analytical & Technical Services, Inc., B-282277.3, August 16, 1999
BNUMBER:  B-282277.3
DATE:  August 16, 1999
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American Analytical & Technical Services, Inc., B-282277.3, August 16, 1999

Decision

Matter of: American Analytical & Technical Services, Inc.

File: B-282277.3

Date: August 16, 1999

Robert Martinez, Esq., Williams & Jensen, for the protester.

Kenneth R. Pakula, Esq., Environmental Protection Agency, for the agency.

Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Procuring agency failed to provide a common basis for competition where
it provided the protester with an incorrect version of the solicitation's
evaluation scheme while providing other bidders with the correct version.

2. Agency cannot use evaluation scheme in a sealed bid solicitation that
requires bidders to submit data packages after bid opening to be evaluated
with only the bidders who received scores above the average score of all
bidders which submitted data packages.

DECISION

American Analytical & Technical Services, Inc. protests the rejection of its
bid under invitation for bids (IFB) No. PR-HQ-98-00031, issued by the United
States Environmental Protection Agency (EPA), for laboratory services.
American contends that its bid was improperly rejected because the EPA
provided it an incorrect version of the evaluation scheme incorporated into
the IFB.

We sustain the protest.

The IFB, issued July 22, 1998, was to procure laboratory services to analyze
samples from hazardous waste sites to determine the presence and
concentration of certain organic analytes in aqueous and non-aqueous samples
from multiple contractors under indefinite-quantity contracts. IFB sect. B.1.
The IFB contemplated the award of 19 1-year contracts with two yearly
options, with no more than 3 contracts to be awarded to one bidder, and with
9 of the contracts based on a 100-sample monthly capacity and 10 of the
contracts based on a 300-sample monthly capacity. IFB amend. 3, at 2; amend.
5, at 3, 7.

Under the stated terms in the IFB, bidders were required to meet certain
qualification requirements. IFB amend. 3, sect. L.3, at 10-11; IFB, attach. No.
14, Pre-Award Qualification Requirements. Specifically, the EPA provided
bidders with pre-award performance evaluation samples to be analyzed within
14 days and the bidders' analyses were to be evaluated by EPA in two
sections. Under the IFB's stated evaluation scheme, the bids of the bidders,
which did not meet either the section I or II requirements, were to be
rejected as nonresponsive. Under section I, the bidders' analyses were
evaluated in accordance with a pre-award performance evaluation sample
(PA-PES) scoring sheet included in the IFB; a bidder had to receive a
minimum score of 75 percent to pass this test. IFB attachs. 14, 16.

Under section II of the pre-award qualification requirements, entitled
"Pre-Award Contract Compliance Screening" (CCS), bidders were required to
provide a complete PA-PES data package for evaluation to determine to what
extent the package was fully compliant and complete with respect to all
analytical and reporting requirements of the statement of work. Section II
further advised that the bidders' PA-PES data packages would be evaluated
against the elements and weighting identified on the PA-PES CCS score sheet.
The CCS scoring sheet was contained in attachment No. 18 of the IFB. Only
those bidders whose CCS scores were above the statistical average CCS score
(average of all bidders' CCS scores) would be determined to have met this
qualification requirement. IFB attach. No. 14.

On July 6, prior to issuing the IFB, the EPA published a revised synopsis of
the IFB in the Commerce Business Daily (CBD). Agency Report, Part 35. Among
other things, the notice advised bidders that the IFB and related documents
would be posted on the EPA Internet web site and would be available for
downloading. The notice stated that the anticipated release date of the IFB
was July 22, and that for those bidders without Internet capabilities hard
copies of the IFB and related documents would be provided upon written
request. By letter dated July 8, American requested a hard copy of the
solicitation. Agency Report, Part 46. The EPA states that it downloaded the
IFB from its Internet site and mailed American a copy of the IFB and related
documents on several computer floppy disks between July 23 and 24.

Twenty-three sealed bids were received in response to the IFB by December
12. Fourteen of the bids were eliminated from consideration, including
American's on February 23, 1999. Protest, exh. 8. EPA rejected American's
bid because its CCS score of 4,780 out of 6,000 points was below the average
CCS score of 5,208 points. [1]

On March 4 and 8, 1999, American filed an agency-level protest against the
elimination of its bid, arguing that the EPA had applied unstated evaluation
factors, and deviated from the announced scoring scheme in calculating its
CCS score. Agency Report, Part 49. EPA denied the protest on April 16.
Agency Report, Part 50. American received this letter on April 23. Protest
at 7. Upon receipt of this letter, American states that it became concerned
that its IFB contained a different PA-PES CCS scoring sheet than was
utilized by the agency in evaluating proposals, and on April 26, discussed
this scoring sheet with another bidder, an affiliate of American, and
determined that the Internet version of the IFB contained a different
scoring sheet in attachment No. 18 than the sheet contained in the IFB
provided to American. Protest at 7-8, attach. 3 at 3.

This protest to our Office was filed on May 6 (within 10 days of April 26).
American contends that the reason that it failed the IFB's CCS qualification
requirement was because the EPA provided it a different version of the
PA-PES CCS scoring scheme than was included in attachment No. 18 of the
Internet IFB, which was actually used by EPA to evaluate the bidders' data
packages. American asserts that the Internet attachment No. 18 contained
some specific point deductions for missing/incorrect values and other
deficiencies in the data packages, which were not contained in the version
of attachment No. 18 that American had been provided. American explains in
detail why it lost approximately 950 points that it would not have lost if
it had been informed of the actual scoring system. Protest at 3-8, 11.

The agency responds that it provided American with the same version of the
final IFB that was on the Internet, that the version American referenced in
its protest is a draft version that was on the Internet until July 22, and
that American must have obtained the draft version of the IFB from one of
American's affiliates that downloaded the IFB from the Internet before it
became final on July 22. [2]

Although, as discussed below, we find a fundamental flaw in EPA's use of the
section II test to reject bidders in a sealed bid procurement, American was
competitively disadvantaged because it was provided an incorrect version of
the section II evaluation scheme while other bidders received the correct
version.

It is a fundamental principle of procurement law that bidders must be
treated equally by a procuring activity. An essential element of that
treatment involves providing bidders with the same information concerning
the agency's requirements so as to provide a common basis for the submission
of bids. Marine Research Specialists, B-265869, Jan. 2, 1996, 96-1 CPD para. 1
at 3-4; see Federal Acquisition Regulation (FAR) sect. 14.208(c) (any
information that is furnished to a prospective bidder concerning an IFB must
be promptly furnished to all other prospective bidders as a solicitation
amendment if the information is necessary in submitting a proposal, or if
the lack of such information would be prejudicial).

While the contracting officer believes that she properly downloaded the
disks sent to American from the Internet after the final IFB was loaded on
the Internet and the draft IFB was deleted, [3] the record shows that the
disks provided to American were either copied prior to the time the
contracting officer believed the final IFB was loaded and the draft IFB
deleted, or from an outdated version of the IFB that was still in the
system. [4] See Tr. at 52-53, 56. In this regard, it is significant that the
agency has confirmed that the envelopes and disks provided by the protester
during the course of this protest were those provided by the EPA and does
not allege that the disks were tampered with. Thus, in the absence of any
other reasonable explanation, we find that EPA provided American the draft
attachment No. 18 that did not update the CCS scoring scheme. In this
regard, we note that the EPA did not make copies of the disks that it
downloaded and sent to American. [5] Tr. at 91-92; Agency Report at 4 n.4.
Nor has it provided copies of the disks that were reportedly downloaded at
the same time and sent to other vendors.

Although the agency suggests that the draft IFB may have been obtained by
American from one of its affiliates rather than the EPA, [6] it has
proffered no evidence to support this assertion. American denies that the
disks containing the IFB on which basis it prepared its bid, was provided by
an affiliate. Tr. at 108. In any case, the evidence indicates that these
disks with EPA's handwritten notations pasted to them contained the draft
IFB. The fact that American's affiliates, which had Internet access,
downloaded the draft IFB and used it in preparing their bids, Tr. at 105-06,
does not explain the presence of the draft IFB on the disks provided
American by EPA. While EPA also alleges that American (or its affiliates)
should have known from the Internet index that the IFB it received was only
a draft, American did not have Internet access, the IFB itself was not
marked as being a draft, and American is not charged with the putative
knowledge of other bidders, even if they are affiliates. [7]

Under the circumstances, we conclude that American was treated unequally
since it was not provided the same CCS scoring sheet as the other bidders
that was the basis for the evaluation of the CCS data package. While EPA
asserts that if American had simply complied with the IFB statement of work
in preparing its data package it could have passed the CCS test, and notes
that other bidders passed the test even though they apparently had the draft
attachment No. 18, the record reflects that American's failure to receive
from the agency the updated CCS scoring formula that more precisely
identified how data packages would be evaluated put American at a
competitive disadvantage as compared to those bidders who had the proper
formula. This is so because the proper CCS scoring formula specifically
noted areas in which the bidders' data packages would be evaluated that were
not mentioned on the CCS scoring formula that had been provided American and
American's data package was primarily downgraded in the areas not mentioned
in its scoring formula.

While American was treated unequally, the section II test poses a more
fundamental problem and cannot properly be used to reject bids received
under sealed bid procedures. As noted, the section II analysis data package
was prepared by the bidders on samples they were provided after bid opening,
and the bids of bidders, which failed this test by having a score less than
the average CCS score considering the scores of all bidders which submitted
data packages, were rejected. [8]

Such a test cannot be used to reject bids in the context of a procurement
conducted under sealed bid procedures. Under such procedures, an agency

shall award a contract with reasonable promptness to the responsible source
whose bid conforms to the solcitation and is most advantageous to the United
States, considering only price and the other price related factors included
in the solicitation.

41 U.S.C. sect. 253b(c) (1994). Accordingly, after the evaluation of "price and
the other price related factors," the only other appropriate inquiry is that
of responsibility.

The section II test is clearly not consistent with 41 U.S.C. sect. 253b(c),
inasmuch as it comparatively evaluates the bidders' responses to determine
which bidders will be considered for award. Moreover, the test cannot be
considered a matter of bid responsiveness, as identified in the IFB, since
responsiveness is determined at the time of bid opening from the face of the
bid documents themselves. The Ryan Co., B-275304, Feb. 6, 1997, 97-1 CPD
para. 62 at 2-3. Nor can a bidder be rejected as nonresponsible where it has the
capacity and ability to perform the contract merely because its ability to
perform the contract is considered inferior to that of the other bidders.
FAR sect. 9.104.

We recommend that the EPA determine whether the section II evaluation is
actually needed and if so recommend that the EPA cancel the solicitation and
resolicit using competitive negotiation procedures. [9] If the EPA
determines that the section II evaluation is not needed, we recommend that
the agency determine whether American and the other eight bidders, which
were determined acceptable under the section I evaluation, are responsible,
and if so include them in the award consideration. American also is entitled
to the cost of filing and pursuing the protest, including reasonable
attorneys' fees. 4 C.F.R. sect. 21.8(d)(1) (1999). The protester should submit
its certified claim for such costs, detailing the time expended and the
costs incurred, directly to the contracting agency within 60 days of
receiving the decision.

The protest is sustained.

Comptroller General
of the United States

Notes

1. In denying the agency-level protest, the agency corrected American's
score to 4,800 points.

2. EPA initially argues that American's protest is untimely either because
the protester should have been aware of its basis from the agency's letter
denying its agency-level protest and American's protest was filed more than
10 days after receipt of the denial of its agency-level protest, or because
the protester had a duty to earlier pursue the information leading to this
protest from its affiliates. Agency Request for Summary Dismissal. We
disagree. First, our review of the agency letter denying American's protest
reveals that the letter did not necessarily reveal that the IFB received by
American contained a different CCS scoring scheme than provided other
bidders. Moreover, there is no evidence that belies the protester's
statement that it first learned of the different CCS scoring formula only
after discussing the denial of its protest with its affiliate on April 26.
Nor did the protester have any duty to earlier compare the IFB it received
with that received by other bidders (even affiliates); it could reasonably
presume that the IFB that it was provided by the government, which was
nowhere marked as a draft document, was the same IFB set forth on the
Internet and provided all bidders.

3. The draft IFB was on the Internet from July 7 through July 22. Hearing
Transcript (Tr.) at 9-10. The index page to the Internet identified this
document as a draft document; however, the document itself was not marked as
a draft. Tr. at 23, 116-19. The contracting officer testified that she and
the EPA Web Master began loading the final IFB on the Internet starting at
approximately 2 p.m. on July 22 and this loading took until after 7 p.m. Tr.
at 10-14. She also testified that the draft IFB was then deleted from the
Internet. Tr. 14-15, 52. She further testified that at approximately 10 a.m.
on July 23, the day after the final IFB was posted, she downloaded copies of
the final IFB (including attachment No. 18 with the revised CCS evaluation
formula) from the EPA's Internet web site to disks, which she mailed to the
four potential offerors, including American, who had requested hard copies
of the IFB. Tr. at 17-21.

4. American has provided the original post-marked envelopes dated July 23
and 24 that contained the disks with the downloaded IFB and attachments that
it was furnished by EPA as well as the disks themselves. Protester's
Comments Tab 1; Tr. at 94-95. One of these discs contained the draft version
of the CCS scoring system that did not include changes made in the final
IFB. At the hearing, the contracting officer confirmed that the envelopes
and disks were indeed those furnished to the protester, as evidenced by the
agency's computer generated and handwritten labels on the envelopes and
handwritten notations of the IFB and attachment numbers on the labels of the
disks. Tr. at 21-22, 43-44, 54, 75. The directory lists on these disks
indicate that the disks were recorded from 11:09 a.m. through 4:52 p.m on
July 22, 1998, not July 23, as testified by the contracting officer. A
standard 3.5 floppy disk, as was utilized by the agency to distribute the
IFB to American, is pre-programmed to record the last date that the
information on the disk was saved or modified, and this date cannot be
easily altered. See Tr. at 42, 71-74.

5. The contracting officer testified that no copies of the draft version of
the IFB were retained after the new IFB was loaded on the Internet. Tr. at
92.

6. American's affiliates did download the draft IFB from the Internet. Tr.
at 105-06; Protester's Response to Agency Dismissal Request.

7. We reject EPA's allegation that American should have known the IFB it
received was only a draft because it contained two versions of one of the
IFB attachments. We fail to see how this would lead a bidder to conclude
that another IFB attachment was only a draft.

8. As noted above, the IFB indicated that the basis for the rejection of
bids whose bidders failed this test was nonresponsiveness, although the
letter to American only stated that the bid "will no longer be considered
for award." Protest, exh. 8.

9. We believe the section I test could be considered a special standard of
responsibility judged by objective criteria. FAR sect. 9.104-2(a).