TITLE:   Johnson Controls, Inc., B-282326, June 28, 1999
BNUMBER:  B-282326
DATE:  June 28, 1999
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Johnson Controls, Inc., B-282326, June 28, 1999

Matter of: Johnson Controls, Inc.

File: B-282326

Date: June 28, 1999

Kathleen C. Little, Esq., David R. Johnson, Esq., James R. Farnsworth, Esq.,
and Suzanne D. Reifman, Esq.,Vinson & Elkins, for the protester.

Gena E. Cadieux, Esq., Department of Energy, for the agency.

Peter A. Iannicelli, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Protest challenging technical evaluation of protester's proposal for
energy savings services and the adequacy of the agency's discussions with
the protester is denied, where the evaluation was reasonable and the
discussions were adequate to lead the protester into those areas of its
proposal that were considered deficient.

2. Protest challenging the agency's award decisions is denied where
selections were based upon a technical evaluation and price analysis that
were both reasonable and consistent with the request for proposals' stated
evaluation scheme.

DECISION

Johnson Controls, Inc. protests the award of six energy savings performance
contracts (ESPC) by the Department of Energy (DOE) pursuant to request for
proposals (RFP) No. DE-RP01-98EE73584. Essentially, the protester contends
that the evaluation of its proposal was unreasonable, that discussions with
it were inadequate, and that the evaluation did not result in selection of
the most advantageous offers. Protest at 2.

We deny the protest.

The DOE's Federal Energy Management Program (FEMP), under the Office of
Energy Efficiency and Renewable Energy, is charged with reducing the cost of
government by advancing energy efficiency and the use of solar and other
renewable energy. To help federal agencies reduce energy use, Title VIII,
sect. 801 of the National Energy Conservation Policy Act, 42 U.S.C. sect. 8287(a)(1)
(1994), authorizes agencies to enter into ESPCs. FEMP has divided the
country into six regions and awarded a set of multiple-award ESPCs, one for
each region. Any federal agency may order from those contracts. [1] Agency
Report at 1-2.

Under an ESPC, the contractor typically provides for financing, design,
construction, operation, and maintenance for energy saving devices and
systems. The contractor recoups its costs out of the energy cost savings and
reduced maintenance costs generated by the energy saving devices and systems
the contractor has installed. Through private financing, contractors
provide, at no capital cost to the government, all labor, materials, and
equipment necessary to reduce energy consumption at specific sites covered
by delivery orders placed against their indefinite-delivery/
indefinite-quantity ESPCs. The contractor must guarantee a certain level of
energy savings. The total of contractor payments and post-installation
energy costs cannot exceed the amount that the agency would have paid for
utilities without an ESPC. Id.

Issued on November 25, 1997, the RFP requested offers for providing energy
saving services to federal agencies in the Mid-Atlantic region on the basis
of a fixed-price, indefinite-delivery/indefinite-quantity contract. RFP
Cover Letter at 1; RFP sect. B.4. The RFP contemplated multiple contract awards
(i.e., as many as six) and stated that services would be provided in
response to delivery orders issued by the contracting officer on either a
competitive or noncompetitive basis, depending upon the circumstances. RFP
Cover Letter at 4; RFP sect.sect. H.13, L.24.

Offers were to include plans for implementing energy conservation measures
(ECM) at two specified sites--the National Gallery of Art and the National
Agricultural Library. RFP sect.sect. L.22, L.29.2. The RFP incorporated a site data
package for each site, describing the conditions (such as energy use and
existing equipment), upon which offers were to be based. The RFP specified
that offers should include narratives addressing the technical approach for
the required technology categories and specified facilities within the site
data packages only, using technical data packages obtained from the
technical library exclusively. RFP Cover Letter at 5; RFP sect. 29.2. The RFP
stated that work at the two sites would be required under the first delivery
orders placed against the indefinite-delivery/indefinite-quantity contracts.
RFP Cover Letter at 4. The site data packages identified required technology
categories that the offerors were to consider. For each ECM proposed, offers
were to include a detailed description, identifying the proposed equipment
and annual energy savings, an analysis of the expected energy savings, and
the proposed price. Offers were also to include the rationale for proposing
each ECM, as well as a description of any required technology categories for
which the offeror concluded that an ECM would not be cost-effective. Agency
Report at 2.

The RFP stated that contracts would be awarded to firms whose offers were
considered most advantageous to the government, after consideration of
technical and price factors, and that technical factors were considered more
important than price factors. RFP sect.sect. M.1, M.3. The RFP stated that the
technical aspects of proposals would be evaluated on the following factors:
(1) past performance; (2) ECMs and related technical capability;
(3) regional projects management approach; (4) ECM descriptions and
projected energy savings; (5) energy baseline and ECM performance
measurement; and (6) site management approach. RFP sect. M.2.

Twenty-two firms submitted initial offers, which were evaluated by the
technical evaluation committee (TEC). Agency Report at 3-6. Johnson
Controls, whose proposal ranked seventh on technical merit, was one of the
10 firms included in the competitive range. Agency Report, Tab 23, Final TEC
Report, at 8, 9. Discussions were held and best and final offers (BAFO)
received and evaluated. The TEC, which ranked Johnson Controls' BAFO seventh
on technical merit, reported its findings to the source selection official
(SSO). After reviewing the final TEC report, the competitive price
post-negotiation memorandum, and BAFOs, the SSO determined that the BAFOs of
the six firms rated highest on technical merit were the most advantageous to
the government, and awarded contracts to those firms. [2] Agency Report, Tab
25, Source Selection Statement, at 14. After a debriefing, Johnson Controls
filed this protest. [3]

Johnson Controls contends that the agency unreasonably downgraded its
technical proposal in the evaluation of the ECM descriptions and projected
energy savings factor. Specifically, the protester contends that the TEC
incorrectly perceived weaknesses concerning: (1) the ultraviolet (UV)
characteristics of proposed lighting; (2) the software proposed to simulate
anticipated energy usage; (3) the information supporting its
"[deleted]"software; and (4) proposed use of [deleted] at the National
Gallery of Art. Protest at 7-10. Johnson Controls further asserts that DOE's
discussions of perceived weaknesses related to the UV characteristics of the
lighting at the National Agricultural Library and use of [deleted] at the
National Gallery of Art were inadequate. [4] Protest at 13-14.

Our Office will question an agency's evaluation of proposals only if it
lacks a reasonable basis or is inconsistent with the RFP's stated evaluation
criteria. DAE Corp., Ltd., B-257185, Sept. 6, 1994, 94-2 CPD para. 95 at 4.
Agencies are not obligated to afford all-encompassing discussions, but are
only required to lead offerors into the areas of their proposals that are
considered deficient. Stone & Webster Eng'g Corp., B-255286.2, Apr. 12,
1994, 94-1 CPD para. 306 at 11. We conclude that DOE's discussions with Johnson
Controls were meaningful and that its evaluation was reasonable.

The protester contends that the TEC incorrectly found that it did not
document that the lighting proposed for the National Agricultural Library
met the requirement for low UV emissions when, in fact, it did. Protest
at 8. Johnson Controls argues that its proposal included (1) a spectral
graph showing that its lights met the UV requirement; (2) the product
numbers for the lights, thus allowing the agency evaluators to verify
compliance; and (3) assurance throughout the proposal that Johnson Controls
would comply with all requirements. Protester's Comments at 12. The
protester also contends that discussions with it on this weakness did not
adequately inform it that the agency needed additional documentation to show
that the UV requirement would be met. Protest at 13-14.

The RFP required offers to identify the proposed equipment and include
manufacturers' literature and specifications. RFP sect. L.29.2, at 165. The RFP
stated that suitability of selected equipment would be one of the elements
evaluated under the ECM descriptions and projected energy savings factor.
RFP sect. M.2.A.4. The RFP stated that the only "unusual requirement" for
National Agricultural Library lighting was that lamps in the book storage
and reading areas must have low UV emissions to prevent exposure of books.
Agency Report, Tab 11, National Agricultural Library Site Data Package para. 4.5
and app. 5.1, sect. L.4, at 20.

The record shows that Johnson Controls' initial proposal did not include
manufacturers' literature for any equipment and it was downgraded for this
deficiency by the TEC. Agency Report Tab 16, Initial TEC Report, at 110.
While the proposal did contain some information about lighting, it did not
include any information regarding the UV characteristics of the lights.
Agency Report at 8. Therefore, TEC concluded it was impossible to evaluate
the UV characteristics of the proposed lights. Agency Report, Tab 16,
Initial TEC Report, at 110.

The agency reports that because the weakness was broad, concerning a lack of
manufacturers' information for all equipment, a broad discussion question
was asked, as follows: "Please provide further details for the proposed
equipment identified for all ECMs." Agency Report, Tab 18, Discussions
Letter from Contracting Officer to Protester attach. 1, at 2nd unnumbered
page (Oct. 8, 1998). Johnson Controls responded by providing more than 100
pages of manufacturers' literature for the many pieces of equipment it was
proposing. Agency Report, Tab 19, Protester's Response to Discussions
Questions (Oct. 23, 1998). According to the protester, included in the
manufacturers' literature it submitted were several pages of spectral
distribution information that it believed would resolve the agency's
concerns regarding the capabilities of its proposed lighting. Protester's
Comments at 20. However, the agency reports (and has provided confirming
copies of the protester's manufacturers' literature) that the spectral
distribution graphs were completely unreadable (i.e., they were entirely
black) because of the manner in which they were photocopied, and, therefore,
the UV characteristics of the lights could not be determined from the
proposal. Agency Report at 8. Since much of the required manufacturers'
literature and specifications was received, the TEC's concern was reduced;
but since the spectral distribution graphs were unreadable, the weakness
relating to the UV emission requirement remained. Agency Report at 28.
Accordingly, the TEC downgraded Johnson Controls' proposal. Agency Report,
Tab 23, Final TEC Report, at 83.

Here, the TEC reasonably downgraded Johnson Controls' proposal for failing
to include manufacturer's literature or otherwise to show that the proposed
lights were of the low UV type. As noted above, the RFP emphasized that low
UV lighting was required for the book storage and reading areas, that this
was an unusual requirement, and that low UV emissions were necessary to
prevent exposure of books. Moreover, the RFP specifically required
manufacturers' literature and specifications for all equipment and stated
that the suitability of equipment would be one of the elements evaluated
under the ECM descriptions and projected energy savings factor. In spite of
these RFP provisions, Johnson Controls failed to include literature
regarding the lights' UV emissions, among other things, in its proposal.
Even after the agency asked Johnson Controls to provide further details
about all of the proposed equipment, the literature submitted regarding the
spectral distribution of the proposed lamps was unreadable and could not be
evaluated. An agency's evaluation is dependent upon information furnished in
a proposal, and it is the offeror's burden to submit an adequately written
proposal for the agency to evaluate. Chant Eng'g Co., Inc., B-279049,
B-279049.2, Apr. 30, 1998, 98-2 CPD para. 65 at 7. Furthermore, Johnson
Controls' general statements of compliance with all requirements were
insufficient, especially since the RFP required specific information
describing the equipment that would be utilized and stated that equipment
suitability would be evaluated. EAP Consultants, B-238103, Apr. 4, 1990,
90-1 CPD para. 358 at 4. Although the protester contends that the TEC could have
verified, using product numbers, that the UV emissions were sufficiently
low, it is the offeror's responsibility to provide, within the four corners
of its proposal, the information for evaluation. Chant Eng'g Co., Inc.,
supra, at 7.

We do not agree that the discussions question, quoted above, was too broad.
In view of the fact that no manufacturers' literature or specifications for
any of the proposed equipment were included in the initial proposal, we
think that the broad request for more details on all equipment was
appropriate. Furthermore, in its comments on the agency's report, the
protester stated that it responded to the discussion question by submitting
spectral distribution information that it believed would satisfy concerns
regarding lighting capabilities. Protester's Comments at 20. Thus, it is
clear that Johnson Controls was aware of the agency's need for information
regarding the lighting's characteristics. Since the question reasonably led
the protester to the very area of its proposal that was considered
deficient, the discussions were adequate.

The protester next asserts that the TEC incorrectly determined that Johnson
Controls did not adequately document the software (i.e., [deleted]) used to
calculate anticipated energy savings for ECM 3.1, a [deleted]. Johnson
Controls argues that [deleted] is a widely used commercial product [deleted]
and, under the terms of the RFP, it was sufficient for Johnson Controls to
include only the engineering assumptions and inputs it used in performing
the energy savings calculations with that program. Therefore, the protester
contends that its proposal should not have been downgraded for failing to
provide any additional information. Protest at 8-9.

The RFP required offers to include a detailed energy analysis documenting
the proposed annual energy savings performance of each proposed ECM. RFP
sect. 29.2, at 165-166. Among other things, the energy analysis was to include
(1) energy savings calculations, using formulas and procedures based on
accepted engineering principles and (2) cite references used for data,
assumptions or empirical formulas. Id. at 166. In evaluating the ECM
descriptions and projected energy savings factor, the RFP stated that
offerors would be evaluated on their demonstrated ability to accurately
project energy savings and that one of the elements of the evaluation would
be verification that the energy analysis was based on sound assumptions and
engineering principles. RFP sect. M.2.A.4, at 181. The RFP, which was amended to
include offerors' questions and DOE's responses, specifically addressed the
requirement for formulas to back up the energy analysis, stating:

Outputs from computer programs are not sufficient in themselves to
demonstrate the reasonableness of the proposed energy savings. First the
proposed computer program must be identified. If the computer program is a
widely-used national standard such as DOE 2, then the engineering
assumptions and inputs should be provided and explained in such a way as to
allow evaluators to conclude that the analysis is based on sound assumptions
and engineering principles. Using the information provided by the offeror,
the DOE should be able to duplicate the offerors results. Users of
proprietary software need to explain the algorithms used and demonstrate to
evaluators that the programs can produce consistently sound results.

RFP amend. 003, attach. 1, at 2nd unnumbered page (emphasis added).

In its initial proposal, Johnson Controls proposed to install [deleted] at
National Agricultural Library (ECM 3.1). Agency Report, Tab 14, Johnson
Controls' Initial Technical Proposal, vol. IIB, at MA-II-2-19. The
proposal's energy savings calculations section stated only that "[deleted]
software was utilized to determine the savings from [deleted]." Id.
at MA-II-2-22. Johnson Controls' proposal also stated, "Supporting input and
output from [deleted] software not included." Agency Report, Tab 14, Johnson
Controls Initial Technical Proposal, vol. IIB, app. C, at 2nd unnumbered
page.

The TEC concluded that Johnson Controls' proposal did not include sufficient
detailed information regarding the energy savings analysis for ECM 3.1 for
evaluation purposes. Agency Report Tab 16, Initial TEC Report, at 110.
During discussions, DOE asked Johnson Controls to provide further details of
the energy analysis documenting the annual energy savings for its proposed
[deleted]. Agency Report, Tab 18, Discussions Letter from Contracting
Officer to Protester attach. 1, at 2nd unnumbered page (Oct. 8, 1998). In
response to this question, Johnson Controls provided many pages of tables,
without any explanation, showing a host of numbers apparently related to the
[deleted] associated with all of its proposed [deleted]. Agency Report,
Tab 19, Protester's Response to Discussions Questions vol. IIB, criterion 4,
at 2-28 (Oct. 23, 1998); Agency Report, Tab 21, Johnson Controls' BAFO,
vol. IIB, criterion 4, at 3-28. The TEC again downgraded the proposal
because it contained no details for evaluation of the energy savings
analysis of ECM 3.1 and the computer output was poorly documented. Agency
Report, Tab 23, Final TEC Report, at 83.

We think that the TEC reasonably downgraded Johnson Controls' proposal for
failing to show how the energy savings for ECM 3.1 were calculated using
[deleted] software. As noted above, the RFP required offerors to provide a
detailed analysis--including calculations, formulas, and procedures used.
Amendment 0003 to the RFP emphasized that output information from computer
programs was not sufficient to demonstrate the reasonableness of proposed
energy savings and that engineering assumptions and inputs should be
explained so as to allow evaluators to conclude that the analysis was based
on sound assumptions and principles. Most significantly, amendment 0003
specifically required users of proprietary software to explain algorithms
used and to demonstrate that the program produces consistently sound
results. Johnson Controls' proposal stated that a proprietary software
program (i.e., [deleted]) was used but, even after the agency asked the firm
to provide additional details of the energy analysis, Johnson Controls
failed to explain how it had performed the calculations or to provide
formulas and/or algorithms used in the analysis. Instead, Johnson Controls'
BAFO included pages of tables of what the agency characterizes as "software
outputs" listing [deleted]. Agency Report at 13. The BAFO includes no
explanation whatsoever of how the multitude of numbers included in the
tables were calculated or how they can be used to calculate the proposed
energy savings for ECM 3.1. While Johnson Controls' states that it assumed
it was not necessary to provide its calculations since it assumed that DOE
was familiar with [deleted] software, Protester's Comments at 23, in light
of the RFP's express statements that outputs from computer programs were not
sufficient to demonstrate the reasonableness of proposed energy savings and
that users of proprietary software needed to explain algorithms used, we
think that the TEC reasonably concluded that the proposal contained
insufficient detail and that the computer output was poorly documented.

The protester also contends that the TEC unreasonably concluded that its
proposal contained insufficient information to evaluate a Johnson Controls
software product, known as "[deleted]" that the firm used to calculate
energy savings for ECM 8.2, [deleted], and ECM 8.3, [deleted]. Johnson
Controls contends that its proposal included the assumptions and algorithms,
as well as a detailed calculation spreadsheet printout, needed to evaluate
its proprietary software. Protest at 9-10.

In its initial proposal, Johnson Controls proposed to [deleted] at the
National Gallery of Art with [deleted] (ECM 8.2). Agency Report, Tab 14,
Johnson Controls' Initial Technical Proposal, vol. IIB, at MA-II-2-75.
Johnson Controls also proposed to [deleted] of the National Gallery of Art's
[deleted] as well as most [deleted] (ECM 8.3). Id. at MA-II-2-79. For each
of these ECMs, the proposal included a different energy savings equation
that it stated was found in the [deleted] software package. Id.
at MA-II-2-78, MA-II-2-82. For ECM 8.2, the proposal contained a chart
listing the [deleted] and including several different categories of
information for each ([deleted]). Agency Report, Tab 14, Johnson Controls
Initial Technical Proposal, vol. IIB, app. F, at 8th unnumbered page. The
proposal did not explain how the figures included in each information
category were calculated for ECM 8.2. Other than the formula, the proposal
did not include any information at all for ECM 8.3.

The TEC considered the failure to include information that would allow it to
evaluate the [deleted] software a weakness and, during discussions, DOE
asked the firm to provide further details documenting the savings for both
ECMs. Agency Report, Tab 16, Initial TEC Report, at 111; Agency Report,
Tab 18, Discussions Letter from Contracting Officer to Protester attach. 1,
at 2nd unnumbered page (Oct. 8, 1998). In response, Johnson Controls
provided additional tables that included figures for the same information
categories that were originally included for ECM 8.2 and two new tables of
information for ECM 8.3. Agency Report, Tab 19, Protester's Response to
Discussions Questions vol. IIB, criterion 4, at 35-40 (Oct. 23, 1998). The
TEC was not satisfied with Johnson Controls' response since it did not
include the assumptions upon which the figures in the tables were based or
any other information that would enable DOE to verify that the [deleted]
output figures included in the tables were reliable. Agency Report at 16.
The TEC concluded that the weakness still existed and downgraded the
proposal because there was no information provided for evaluation of
software. Agency Report, Tab 23, Final TEC Report, at 83.

We conclude that the TEC reasonably downgraded Johnson Controls' proposal
for failing to provide adequate supporting information on how it calculated
energy savings for ECMs 8.2 and 8.3. The RFP, quoted above, specifically
stated that outputs from computer programs were not sufficient to
demonstrate the reasonableness of proposed energy savings. RFP amend. 003,
attach. 1, at 2nd unnumbered page. The RFP also specifically required
offerors not only to identify the computer programs used, but also to
provide engineering assumptions and inputs used in their calculations, and
stated that users of proprietary programs, such as [deleted], needed to
explain the algorithms used and to demonstrate to evaluators that the
programs could produce consistently sound results. Thus, the RFP placed a
heavy burden on offerors to demonstrate how they calculated their proposed
energy savings. Johnson Controls' proposal simply did not meet this burden.
For example, the agency points out that in several instances, Johnson
Controls' proposed energy savings were premised upon the [deleted]; Johnson
Controls' proposal did not explain why its input data were different from
the site data package information nor how it computed the new, revised
[deleted]. Agency Report at 14-15. In other instances, the agency states
that the [deleted] used by Johnson Controls did not match [deleted] of the
site data package for the same [deleted]. Id. at 15. Johnson Controls
proposal did not explain these discrepancies or state how it calculated the
figures used in its proposal. [5] Moreover, while Johnson Controls included
two different energy savings equations (one for each ECM) in its proposal,
the proposal did not explain how the two equations were related. Id. at 16.
Despite being asked for additional details documenting the proposed savings
for both ECMs, Johnson Controls left these and other questions about its
energy savings computations unanswered, and therefore DOE reasonably did not
accept the use of [deleted].

The protester further objects to DOE's downgrading of its proposal for using
the National Gallery of Art's non-functioning [deleted] as part of its
technical solution for ECM 5.2. [6] The protester states that, while touring
the National Gallery of Art site, a DOE guide pointed out the existence of
the [deleted] to it. The protester argues that using the [deleted] will save
the government more money than installing one and there was nothing in the
site data package prohibiting use of the [deleted]. Protest at 10. The
protester also contends that it was misled by DOE's discussion question,
which asked it to "verify" the interface with government equipment for this
ECM. Id. at 14.

The agency responds that, under the terms of the RFP, offers were to be
based solely upon the information contained in the National Gallery of Art
site data package, which indicated that there were no [deleted]. Agency
Report at 17-18. The agency asserts that Johnson Controls, however,
unreasonably assumed that it could base its proposal upon information it had
gleaned from a site tour instead of the information contained in the site
data package. Id. at 17. The agency states that, even after DOE asked
Johnson Controls about this issue, Johnson Controls simply reiterated its
view that there was a [deleted] available for recommissioning, when, in
fact, there was none; therefore, Johnson Controls' proposal contained a
weakness and was downgraded in the evaluation. Id. at 18-20. Even though the
agency asserts that the express terms of the RFP and the site data package
are dispositive, the agency reports that, upon inquiry, it found no DOE or
National Gallery of Art employee who remembers pointing out or stating to
Johnson Controls during the site visit that there were [deleted]. The agency
also argues that none of the DOE employees who attended the site visit would
have had any knowledge about the existence of [deleted] and that, even if a
National Gallery of Art employee did point out or state that such [deleted]
were available, no National Gallery of Art employee was authorized to amend
the terms of the RFP or the site data package. Id. at 20.

The RFP cautioned offerors that, even though they would be afforded site
tours, proposals were to be based on the information contained in the site
data packages. The RFP stated:

"[A]ll site specific . . . proposals must be based on the technical data
library information (explained below) only. . . . Specifically, the RFP is
based on real sites, but in order to properly evaluate the proposals we have
limited the scope and site conditions to those defined in the RFP. This has
the effect of detaching the proposals from site conditions which may differ,
or have changed, from those described in the RFP; but is necessary to ensure
bids that can be evaluated with optimum objectivity.

RFP Cover Letter at 5 (emphasis added). The RFP also stated: "Since all site
specific proposals are based solely on the technical data package
information any discrepancies between the site and the data package will be
settled by the information in the data package." RFP sect. L.20.

In its initial proposal, Johnson Controls proposed to [deleted] at the
National Gallery of Art. Johnson Controls assumed that the [deleted] to
complete this ECM. Agency Report, Tab 14, Johnson Controls' Initial
Technical Proposal, vol. IIB, at MA-II-2-59. The TEC considered the proposed
use of existing [deleted] a weakness, stating:

Offeror's assumption that [deleted] are available for tie-in is not correct
because there is no information in the [site data package] that [deleted]
exist in the areas under consideration for lighting retrofits. In reality,
there are no [deleted] in those areas.

Agency Report Tab 16, Initial TEC Report, at 111.

During discussions, DOE asked Johnson Controls to "Please verify the ECM
interface with Government equipment for ECM 5.2 ([deleted])." Agency Report,
Tab 18, Discussions Letter from Contracting Officer to Protester attach. 1,
at 2nd unnumbered page (Oct. 8, 1998). In its BAFO, Johnson Controls
continued to propose on the basis of using the [deleted] and emphasized the
savings that would result. Agency Report, Tab 21, Johnson Controls' BAFO,
vol. IIB, criterion 4, at MA-II-2-61. Since the weakness still remained, the
TEC downgraded the proposal in the evaluation of the ECM descriptions and
projected energy savings factor. Agency Report, Tab 23, Final TEC Report,
at 83.

We have no basis to object to the evaluation. The site data package for the
National Gallery of Art building included a "lighting profile" that stated:
"This building has incandescent and T-12 magnetic lighting without controls
other than wall switches and time clocks." Agency Report, Tab 12, National
Gallery of Art Site Data Package, at 9 (emphasis added). In view of the
RFP's express warnings, quoted above, that offerors should propose and the
evaluations would be based exclusively upon the site conditions set forth in
the site data package, it should have been clear to all offerors that their
offers were to be based upon there being no [deleted] in the National
Gallery of Art building. Regardless of what Johnson Controls observed during
its site visit, Johnson Controls should have been aware that for an offer to
use the building's [deleted] was in direct conflict with the site data
package's statement that the building was without [deleted]. We note that,
even though the RFP allowed offerors to ask questions of DOE in writing, and
DOE responded to questions from offerors in the form of several RFP
amendments, Johnson Controls never asked DOE whether the [deleted] it says
it observed during the site visit were available and in working condition or
whether it could properly propose on the basis of using them. RFP sect. L.43;
Agency Report at 18. Furthermore, in view of the RFP's clear directions to
rely only upon the site conditions described in the RFP's site data package
when proposing, we think that the agency's request that Johnson Controls
verify the interface with government equipment for this particular ECM
reasonably should have led Johnson Controls to reexamine the site data
package's very brief lighting profile, which described the [deleted] at the
National Gallery of Art site--the exact area of its proposal that was
considered deficient. Accordingly, we conclude that the evaluation was
reasonable and consistent with the RFP and that the discussion question was
meaningful.

The protester next contends that the agency's evaluation methodology was
irrational because, after the TEC arrived at a consensus adjectival rating
for each offer in each of the six evaluation factors, the TEC then converted
the adjectival ratings into pre-determined percentages of the total
available points for each factor. For example, every proposal that received
a very good rating on an evaluation factor received 80 percent of the points
available for that factor. Using a purely hypothetical example, the
protester contends it would be possible for an inferior offer to receive a
higher overall technical point total, since the TEC did not give slightly
higher (or lower) point totals for proposals that were slightly superior (or
inferior). Protest at 15-18.

This protest ground is based on hypothetical facts that bear no resemblance
to the actual evaluation record and therefore had no effect on the outcome
of the competition. We do not consider hypothetical questions. See Republic
Steel Corp.; Centex Constr. Co., Inc., B-203379, B-203379.2, Sept. 20, 1982,
82-2 CPD para. 235 at 1; J & A Inc., B-210056, May 16, 1983, 83-1 CPD para. 513
at 5. Furthermore, we think it is disingenuous of Johnson Controls, a firm
which received five ESPC awards from DOE under this evaluation methodology,
now to complain that the methodology was fatally flawed only in the
competition under which it was not awarded a contract.

In any event, our review of the evaluation record finds that the TEC reports
upon which the SSO based his selection decisions included adjectival ratings
and narrative discussions of the strengths and weaknesses of each offer, as
well as point scores, for each evaluation factor. The record shows that the
point scores given by the TEC are consistent with the TEC's discussions of
strengths and weaknesses. That is, proposals that were recognizably superior
based on the narrative evaluation that identified strengths and weaknesses
received greater point scores. For example, in evaluating the "ECMs and
related technical capability" factor, the TEC determined that the sixth
ranked BAFO (i.e., Siebe's) had [deleted], while Johnson Controls' BAFO had
just [deleted] consistent with those adjectival ratings and narratives, the
TEC gave Siebe's BAFO an "outstanding" rating of [deleted] out of a possible
250 points and Johnson Controls' BAFO a "very good" rating of [deleted]
points for this factor. Agency Report, Tab 23, Final TEC Report, at 68, 79.
Thus, the protest allegation provides no basis for finding the evaluation
methodology irrational.

Finally, the protester contends that the agency's selection decisions were
inconsistent with the RFP's statement that awards would be made to firms
whose offers were most advantageous to the government. Specifically, the
protester asserts that DOE failed to consider the proposed energy savings to
the government or the total prices of the offers--factors that the protester
believes were critical to determining which offers were most advantageous.
Protest at 18-19. After examining the complete evaluation record, we find
that the price analysis and award decisions were reasonable and consistent
with the RFP's evaluation scheme, and we therefore deny this protest ground.

The RFP stated that price proposals would be evaluated for: (1) completeness
and realism, (2) reasonableness, and (3) verification that for each year the
proposed guaranteed cost savings would exceed the proposed price. RFP
sect. M.2.C. The record shows that the agency performed a price analysis of all
BAFOs. DOE analyzed each offer to determine: (1) whether savings would
exceed price for both sites; (2) the consistency of mark-ups and interest
rates; (3) whether the offeror proposed on all required technology
categories or justified its decision not to propose on economic feasibility
grounds; (4) completeness of the proposed price; and (5) reasonableness and
competitiveness of price. Agency Report, Tab 24, Competitive Price
Post-Negotiation Memorandum, at 3-16. As part of the price analysis, DOE
compared each offer's estimated annual savings and overall price to those of
the other offerors, and DOE compared each offeror's estimated total annual
cost savings to a government estimate. Id. Thus, the agency's price analysis
considered both the amount of energy savings to the government and the total
proposed prices and was consistent with the stated scheme.

The SSO reviewed the price analysis, the final TEC report, and all BAFOs.
The SSO noted, among other things, that the price analysis verified that the
level of cost savings exceeded the proposed price for each site specific
proposal and that the overall prices proposed by all offerors were
reasonable and realistic. Agency Report, Tab 25, Source Selection Statement,
at 10. The SSO also discussed at some length the fact that his review of
BAFOs revealed wide variations in proposed prices and that this had been
anticipated when the RFP was drafted and the government estimate developed.
[7] In essence, the SSO stated that the RFP allowed great flexibility in
developing creative technical approaches. The SSO noted that some offerors
had proposed several ECMs within a particular technology category while
others had elected not to propose any ECMs at all in that category, and that
this was allowed by the RFP. The SSO also stated that he understood that the
number of ECMs proposed was not necessarily the determining factor as to the
acceptability of a proposal, but that the quantity and the nature of the
proposed ECMs--offerors were encouraged to take innovative approaches and,
in fact, significantly different technical approaches were received--had a
significant impact on price, resulting in a broad range of prices. For
example, the SSO pointed out that one offeror elected to replace all boilers
and chillers while another only elected to make improvements to existing
boilers and chillers. Id. at 9-10.

The record shows that the SSO examined the various strengths and weaknesses
of all of the BAFOs in making his determination that six offers were most
advantageous to the government. Id. at 10-14. The record also shows Johnson
Controls' BAFO ranked seventh with an overall technical score of [deleted]
out of a possible 1000 points and its total price for both sites was
approximately $[deleted] million, while Siebe's overall technical score was
[deleted] points and its total price was approximately $[deleted] million.
Agency Report, Tab 24, Competitive Price Post-Negotiation Memorandum,
at 1, 3. In making his technical/price tradeoff analysis, the SSO stated:

Overall, Johnson Controls proposal fell short of the other more technically
superior proposals and did not offer the myriad of significant strengths
found in the higher rated proposals. This was particularly true within the
two most significant criteria (2 and 4) ["ECMs and related technical
capability" and "ECM descriptions and projected energy savings"], which
accounted for half of all possible points. Johnson rated [deleted] in
Criterion 2 and [deleted] within Criterion 4. Additionally, there is no
price benefit to the Government which would outweigh its lower technical
standing. Siebe Government Services is the firm immediately in front of
Johnson Controls. In addition to a total score which is [deleted] points
(approximately [deleted]%) higher than Johnson's, Siebe's overall price is
lower than Johnson's total price.

Agency Report, Tab 25, Source Selection Statement, at 13.

The RFP stated that technical factors were more important than price, and
Siebe's proposal received a higher technical rating and its total price was
lower than Johnson Controls'. Since, as discussed above, both the technical
evaluation of Johnson Controls' proposal and the price analysis of all BAFOs
were reasonable and consistent with the stated evaluation scheme, we
conclude that the award decisions were reasonable. [8]

The protest is denied.

Comptroller General of the United States

Notes

1. Johnson Controls was awarded contracts in five of the six regions (all
except the Mid-Atlantic region). Agency Report at 3 n.2. Johnson Controls
protests only the award of contracts for the Mid-Atlantic region.

2. The six firms receiving awards were ERI Services, Inc.; EUA Cogenex
Corp.; Honeywell, Inc.; Northeast Energy Services; HEC, Inc.; and Siebe
Government Services.

3. The parties raised a number of arguments in support of their positions.
While we carefully considered every argument and examined the entire record
in light of them, we will address only the most significant arguments here.
Also, the protester initially alleged that DOE unreasonably downgraded its
proposal in evaluating the "energy baseline and ECM performance measurement"
factor. Protest at 11-13. DOE's protest report responded to the allegation,
but Johnson Controls did not reply to the agency's response. We therefore
consider the allegation abandoned. Trijicon, Inc., B-244546, Oct. 25, 1991,
91-2 CPD para. 375 at 4 n.3.

4. In its comments on DOE's protest report, the protester alleged for the
first time that the agency's discussions regarding Johnson Controls' energy
analyses for four specific ECMs were also inadequate. Protester's Comments
at 22-24. However, the initial protest shows that Johnson Controls was aware
that the TEC considered its analyses for these ECMs to be weaknesses, but
Johnson Controls did not assert at that time that discussions on them were
inadequate. Protest at 8-10. As Johnson Controls was aware of this protest
basis when it filed its initial protest, but did not raise it until after
the agency filed a report, the issue is untimely. 4 C.F.R. sect. 21.2(a)(2)
(1999); see Management Sys. Applications, Inc., B-259628, B-259628.2,
Apr. 13, 1995, 95-1 CPD para. 216 at 11.

5. Johnson Controls has not refuted the agency's assertions of
discrepancies.

6. A [deleted]. Agency Report at 17.

7. Among the awardees, total prices ranged from approximately $1.2 million
to $5.8 million. Agency Report, Tab 24, Competitive Price Post-Negotiation
Memorandum, at 3.

8. While the protester asserts that the large energy savings that it
proposed should have been taken into account in the source selection, as
explained above, the RFP provided that energy savings were to be evaluated
under the ECM descriptions and projected energy savings technical factor,
and we found that the evaluation of the protester's proposal under that
factor was reasonable. To the extent that the protester believes that
proposed energy savings should have been taken into account as a cost
savings in a cost/technical tradeoff, we note that the RFP provided that, if
a tradeoff were undertaken, technical merit would be weighed against the
proposed price to the government (not projected energy cost savings). RFP
sect. M.3. Johnson Controls did not protest the RFP's evaluation scheme before
the due date for submission of proposals and any challenge to it now would
be untimely.