TITLE:   Infrared Technologies Corporation, B-282912, September 2, 1999
BNUMBER:  B-282912
DATE:  September 2, 1999
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Infrared Technologies Corporation, B-282912, September 2, 1999

Decision

Matter of: Infrared Technologies Corporation

File: B-282912

Date: September 2, 1999

Carlos Ghigliotty for the protester.

Ben Hall for Systems Energy Audit Company, Inc., an intervenor.

David W. Beale, Esq., Department of the Navy, Military Sealift Command, for
the agency.

Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency reasonably made award to the offeror whose proposal was substantially
lower-priced and was found technically superior where the record shows that
the evaluation was reasonable and consistent with the stated evaluation
criteria.

DECISION

Infrared Technologies Corporation (ITC) protests the award of a contract to
Systems Energy Audit Company, Inc. (SEA) under request for proposals (RFP)
No. N32205-99-R-6086, issued by the Department of the Navy, Military Sealift
Command (MSC), for thermographic inspection services onboard MSC vessels.
ITC, among other allegations, contends that the evaluation of proposals was
improper.

We deny the protest.

The RFP, issued on March 30, 1999, as a small business set-aside, sought
proposals for the thermographic inspection of shipboard equipment, involving
the use of infrared photography to detect system anomalies, such as excess
heat or wear. The RFP contemplated the award of a fixed-price
indefinite-delivery, indefinite-quantity contract for a base year and 4
option years. RFP sect.sect. B, L-4. Section M-1 of the RFP provided that award
would be made to the offeror whose proposal was determined to provide the
best overall value to the government. Section M-1 also advised offerors that
"[all] evaluation factors other than cost or price when combined, are
approximately equal to cost or price. The Government may award to a higher
priced proposal if it affords the Government greater overall benefit."

The RFP listed the following evaluation criteria, in descending order of
importance: past performance; equipment and capabilities; personnel
(resumes, training, and experience); and customer satisfaction. Id. sect. M-4.
The RFP instructed offerors as to the information that was required to be
included in the proposals for evaluation under each of the stated criteria
and provided that:

technical proposals submitted by offerors will be evaluated to determine the
offeror's ability to satisfactorily perform the requirements of this
solicitation. . . .

* * * * *

Omissions and/or inaccurate or inadequate responses will have a negative
effect on the overall evaluation and technical proposal rating.

Id., attach. J-1, para.para. 1, 3. The RFP, through incorporation by reference of
Federal Acquisition Regulation (FAR) sect. 52.215-1, provided that, since the
agency intended to evaluate proposals and make award without discussions,
each offeror's initial proposal was to contain that offeror's best terms
from a cost or price and technical standpoint. Id. sect. L-1.

ITC and SEA submitted the two proposals received by MSC by the scheduled
April 30 closing time. SEA, the incumbent contractor for these services,
submitted the lower-priced proposal, at $500,655.50. SEA's technical
proposal, which received a score of 90.75 (out of 100 points), was
considered excellent overall and found to be technically superior to ITC's
substantially higher-priced proposal. Source Selection Results Memorandum,
May 10, 1999, at 1. SEA's technical proposal was rated higher than the
protester's proposal under each of the evaluation factors for award. Id.

ITC's proposal was rated satisfactory overall, with a technical merit score
of 75.24. Id. The evaluators concluded that the proposal indicated that ITC
was qualified to perform the infrared inspection services, but that
insufficient information was provided in the proposal to warrant a higher
technical rating. The evaluators downgraded the ITC proposal, for instance,
for its failure to sufficiently address the following: the quality of the
offeror's past contract performance (e.g., regarding schedule adherence);
the offeror's familiarity with certain MSC-specific systems; certain
proposal statements regarding personnel (e.g., concerning the availability
and qualifications of additional personnel); and ITC's only generally stated
assertions of customer satisfaction. Id. at 2-3. Consequently, the ITC
proposal was found to present minimal to moderate performance risk. Id. The
SEA proposal, on the other hand, was evaluated as presenting no performance
risk based on its detailed demonstration of the awardee's qualifications,
and substantially similar experience, as well as its documented high level
of customer satisfaction. The evaluators also had knowledge of SEA's
successful performance of its prior contract with the agency for these
services. Id.

On May 28, based on its comparative evaluation of the proposals, MSC awarded
a contract under the RFP to SEA, based on its technically superior,
substantially lower-priced proposal. ITC's protest of the evaluation of
proposals was filed subsequent to a debriefing by MSC. [1]

In reviewing a protest challenging an agency's technical evaluation of
proposals, we examine the record only to ensure that the agency's evaluation
was reasonable and consistent with the stated evaluation criteria, since the
determination of the relative merit of competing proposals is primarily a
matter within the contracting agency's discretion. See Advanced Tech. and
Research Corp., B-257451.2, Dec. 9, 1994, 94-2 CPD para. 230 at 3. As discussed
below, we have examined the agency's evaluation record, as well as the
offerors' proposals, and conclude that the evaluation and award
determination were both reasonable and consistent with the stated evaluation
criteria.

Past Performance

ITC first challenges the evaluation of its proposal under the past
performance evaluation factor, the most important technical evaluation
factor for award. For the evaluation of past performance, the RFP instructed
offerors as follows:

Provide offeror's history on quality of services/products delivered for the
past three years. Offerors should specifically address the services/products
required by this solicitation. List contracts performed and points of
contact (with telephone number) with customer.

RFP, attach. J-1, para. 3. As stated above, the RFP specifically cautioned
offerors that proposal omissions and inadequate responses would warrant a
downgrade in proposal rating. Id. In response to the past performance
information requirement, ITC stated in its proposal that it believed it
"would be unrealistic" for ITC to provide past performance information for
the hundreds of infrared inspections it has performed over the past 3 years.
ITC Proposal, Apr. 30, 1999, Tab 1. Rather, ITC chose to identify two
companies for which it had performed infrared inspection services. ITC
briefly explained that the infrared inspections for these companies
concerned static interruptible power supply systems at data centers and
cellular phone sites, and commercial repair work; however, ITC provided no
additional performance-related details about the actual contract
requirements, work performed, or equipment involved. The ITC past
performance proposal also did not provide any information, as required,
about the quality of the services provided or the similarities to the
current performance requirements. ITC did provide a point of contact at each
of the two companies, apparently assuming that the agency would contact the
references to obtain the information necessary for evaluation of the firm's
past performance. See ITC Comments, July 19, 1999, at 8. The third reference
listed in the ITC past performance proposal was a United States Coast Guard
shipyard, but again, no description of the work performed or the quality of
that work was provided. The only other information provided in the firm's
past performance proposal was ITC's identification of a fourth reference, an
organization from which ITC's lead thermographer had received training and
certification.

The ITC proposal was evaluated as satisfactory for past performance. In
particular, the evaluators credited the proposal for ITC's shipboard
experience, and the firm's experience in various work environments and with
government agencies. The evaluators noted that ITC failed to provide
information demonstrating the quality of its past performance in terms of
schedule adherence and customer satisfaction; however, the proposal was
credited under the past performance factor for ITC's statement elsewhere in
the proposal that the firm had a 96-percent level of repeat business from
its customers. Consequently, the evaluators, who decided not to contact any
offeror's references, rated the ITC past performance proposal as
satisfactory, with minimal to moderate risk. Source Selection Results
Memorandum at 2. The evaluators concluded that a higher rating was not
warranted due to the proposal's informational omissions and inadequacies.

The SEA proposal, on the other hand, was evaluated as providing a solid
demonstration of the firm's proven history of quality work provided to the
agency and other customers for substantially similar shipboard-specific
infrared inspection services. Id. A significant amount of prior contract
work for directly related requirements was provided in the firm's proposal,
with statements by SEA of the relevance and successful performance of those
contracts.

It is an offeror's obligation to submit an adequately written proposal. See
Educational Computer Corp., B-227285.3, Sept. 18, 1987, 87-2 CPD para. 274 at 3.
Our review of the evaluation record and proposals here supports the
reasonableness of the agency's determination that the protester's proposal
warranted the reduced score it received under the past performance
evaluation factor for its failure to provide the detailed information
required for evaluation. In short, our review confirms that, in terms of the
quantity and quality of documented, directly relevant experience, the
information provided in the SEA proposal far outweighs that provided in the
ITC proposal, and, as reflected in the evaluation record, the proposals were
properly rated accordingly.

Although ITC contends that the agency should have contacted its references
for any additional past performance information necessary for ITC to have
received a higher proposal score, there was no requirement for the agency to
do so. While the RFP requested point-of-contact reference information from
the offerors, it did not state that references would be contacted.
Accordingly, it was each offeror's responsibility--not the agency's--to
provide sufficient information in its initial proposal in response to the
RFP's specific request for information regarding the quality and relevance
of the firm's past performance to enable a meaningful review of the
offeror's past performance. See Deva & Assocs., P.C., B-281393, Feb. 1,
1999, 99-1 CPD para. 41 at 3-4; Geographic Resource Solutions, B-260402, June
19, 1995, 95-1 CPD para. 278 at 4. ITC, in an exercise of its own business
judgment, and to its detriment, chose not to provide the detailed past
performance information required for a more favorable evaluation, and its
proposal was reasonably downgraded because of it.

ITC also asserts that it was unfair for the evaluators to consider their
knowledge of SEA's successful past performance as the incumbent contractor
for these services, and that, because the evaluators used that knowledge,
the evaluators were obligated to contact ITC's references for the past
performance information ITC omitted from its proposal. There is no
requirement that an agency equalize a competitive advantage that a firm may
enjoy because it gained experience under a prior government contract, which
experience was known to the evaluators, provided those advantages do not
result from a preference or unfair action by the government. See Information
Ventures, Inc.; Harris Consultive Servs., B-219989, B-219989.2, Dec. 16,
1985, 85-2 CPD para. 668 at 3. Further, since the evaluation record shows that
the SEA past performance proposal was evaluated as excellent based primarily
upon the quality of that proposal's documentation of its successful,
relevant past performance--whereas ITC simply failed to provide the required
information--ITC's challenge regarding the evaluators' knowledge of SEA's
prior performance provides no basis to question the propriety of the
evaluation. [2]

Customer Satisfaction

ITC also challenges the evaluation of its proposal under the customer
satisfaction criterion. For evaluation under this factor, offerors were
required to submit the following information in their proposals:

Identify point(s) of contact to address customer's technical questions and
complaints. . . .

Provide the level of satisfaction of offeror's customers services/products
delivered for the last three years. Provide copies of letters from the
offeror's customers evaluating services/products delivered during this
period.

RFP, attach. J-1,para. 3.

In its proposal, ITC provided point-of-contact information for its lead
thermographer (the sole thermographer identified in the proposal) and stated
only that:

ITC has a 96 [percent] repeatability of [its] customers requesting
additional services, therefore ITC has never had a need to send letters to
our customers evaluating our services. The individuals ITC has provided in
[the past performance proposal section] can be used to confirm our claim.

ITC Proposal, supra, Tab 4.

ITC provided no customer satisfaction letters. The evaluators rated the ITC
proposal as marginal under the customer satisfaction criterion, with
moderate risk. The evaluators noted that, since the sole point of contact
for company complaints was the lead thermographer performing the work, there
was a concern as to whether complaints would be readily resolved. Although
the proposal was credited slightly for ITC's statement of customer
satisfaction in terms of its repeat business from its customers, the
proposal was downgraded under this factor for the failure to provide any
letters of customer satisfaction, as required by the RFP. [3] Source
Selection Results Memorandum, supra, at 3.

Our review of the record provides no basis to question the propriety of the
evaluation of the ITC proposal under the customer satisfaction factor.
Although information regarding the offeror's complaint procedures was not
specifically requested by the RFP, the ITC proposal provided no information
for the agency to evaluate its customers' satisfaction with the resolution
of complaints, and thus, we find it reasonable for the agency to have
questioned the proposal on the basis of a reasonable concern regarding the
potential risk in this area. Moreover, although the evaluators gave some
credit to the proposal for its unsupported statement regarding repeat
business, there is no reason to conclude that a higher rating was warranted
given that the protester simply did not provide the requisite documentation
of customer satisfaction. As stated above, it is the offeror's obligation to
submit an adequately written proposal. Education Computer Corp., supra. Our
review of the record also confirms that SEA's proposal, in contrast,
included a substantial number of letters attesting to high levels of
customer satisfaction, and that that proposal was reasonably evaluated as
excellent based on the quality of the submission. Source Selection Results
Memorandum, supra, at 3.

Personnel and Equipment/Capabilities

ITC also protests the evaluation of its technical proposal under the
personnel and equipment/capabilities factors. Additionally, ITC contends
that the agency failed to evaluate the "miscellaneous section" of the ITC
proposal (including information regarding additional capabilities,
equipment, and descriptive literature) under the personnel and
equipment/capabilities factors. We need not review these contentions,
however, in light of the above findings regarding the reasonableness of the
evaluation of the ITC proposal under the past performance and customer
satisfaction factors. The record shows that, even if the ITC proposal had
been awarded the maximum amount of points available under both of these
remaining evaluation factors, ITC's proposal simply would not have had a
higher overall technical score than that received by the SEA proposal. Thus,
under the RFP's evaluation scheme, ITC would not otherwise be in line for
award, since the protester proposed a substantially higher price than SEA.
Id. at 1; Source Selection Plan, Jan. 8, 1999, at 4. Competitive prejudice
is a critical element of any viable protest. Lithos Restoration, Ltd.,
B-247003.2, Apr. 22, 1992, 92-1 CPD para. 379 at 5-6. ITC has not shown, nor
does the record show, that, but for the agency's action in evaluating its
proposal under the personnel and equipment/capabilities factors, ITC would
have a substantial chance of receiving the award. [4] See McDonald-Bradley,
B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at 3; Statistica, Inc. v. Christopher,
102 F.3d 1577, 1581 (Fed. Cir. 1996).

In any event, we have reviewed each of the allegations raised by the
protester, and the evaluation record, including the proposals, and we note
briefly that our findings show that the agency's downgrading of the
protester's proposal, and assignment of a higher rating to the awardee's
proposal under the personnel and equipment/capabilities factors, were
reasonably based. For instance, under the personnel factor, the agency
reasonably credited the ITC proposal for its sole resume (submitted by ITC
for the lead thermographer) due to that individual's documented extensive
experience with infrared inspections. However, the proposal reasonably did
not warrant a higher rating for personnel due to the protester's failure to
provide resumes for evaluation of the additional two thermographers ITC
stated it could provide in the event that performance at concurrent work
sites would be required, as contemplated under the RFP. Our review of the
record also confirms that SEA's proposal, on the other hand, included
detailed resumes documenting the qualifications and experience of its
proposed thermographers (including information as to the individuals'
extensive experience and availability for concurrent work under the
contract) for which it reasonably received a higher technical rating for
personnel.

Additionally, under the capabilities factor, our review of the record,
including a comparison of the proposals, shows that SEA's extensive
MSC-specific experience, and documented capabilities as the incumbent for
these services, reasonably warranted a higher evaluation rating than that
received by the ITC proposal. As stated above, an incumbent's experience may
offer genuine benefits to an agency, and therefore may reasonably be
considered in the evaluation of proposals, especially, as here, in
distinguishing the proposal from one offering less specifically related
experience. [5] See Dr. Carole J. Barry, B-271248, June 28, 1996, 96-1 CPD
para. 292 at 3.

The protest is denied.

Comptroller General
of the United States

Notes

1. In its protest, ITC also challenges several terms of the RFP, including
performance requirements (e.g., regarding certain required inspections) and
proposal preparation requirements (e.g., regarding instructions for the
offeror to include customer satisfaction letters). ITC contends that the RFP
terms were ambiguous or otherwise improper, and unfairly favored the
incumbent contractor. Under our Bid Protest Regulations, 4 C.F.R.
sect. 21.2(a)(1) (1999), a bid protest which is based upon alleged improprieties
apparent from a solicitation, must be filed prior to the closing time for
the receipt of initial proposals. Teleport Communications Group, B-277926.2,
Sept. 17, 1998, 98-2 CPD para. 72 at 6 n.6; Imagineering Sys. Corp., B-228434.2,
Feb. 4, 1988, 88-1 CPD para. 109 at 2. Here, ITC orally informed the contract
specialist of its concerns regarding these RFP provisions on April 29, 1 day
prior to the scheduled closing time. Such communication to the agency,
however, does not satisfy the requirement for a written protest, and does
not serve in any way to toll our timeliness requirements. Mantech Technical
Servs. Corp.--Recon., B-244240.5, Dec. 6, 1991, 91-2 CPD para. 517 at 3-4. ITC's
challenges against the terms of the solicitation, filed after award, are
therefore untimely and will not be considered further.

2. ITC also contends that the agency improperly used undisclosed criteria
for evaluation of past performance (e.g., schedule adherence) and
double-counted under that factor some of the same weaknesses found in its
proposal (e.g., the omission of any customer satisfaction documentation)
under the customer satisfaction evaluation factor. Neither of these
contentions provides a valid basis to question the evaluation. First, since
the alleged undisclosed evaluation factors are reasonably within the scope
of the past performance evaluation factor, they serve as logical and related
aspects of assessing and distinguishing between the proposals, even though
the RFP did not list them as specific subfactors of the past performance
factor for review. See TESCO, B-271756, June 24, 1996, 96-1 CPD para. 284 at 2.
Second, an agency is not precluded from considering an element of a proposal
under more than one evaluation criterion where the element is relevant and
reasonably related to each criterion under which it is considered. Source
One Management, Inc., B-278044.4, B-278044.6, June 12, 1998, 98-2 CPD para. 11
at 6. Accordingly, since documented customer satisfaction is a relevant
indicator of the quality of performance, it was a proper element in the
evaluation of past performance, as well as in the evaluation of the proposal
under the customer satisfaction factor.

3. ITC challenges the RFP requirement for the submission of customer
satisfaction letters; that challenge, however, is untimely filed, since
apparent improprieties in a solicitation must be protested prior to the
closing time for submission of proposals. 4 C.F.R. sect. 21.2(a)(1). ITC also
argues that, if the agency perceived weaknesses in the protester's proposal
regarding a lack of documentation or otherwise, it should have conveyed that
to ITC for correction or supplementation. However, an agency generally has
no obligation to conduct discussions where, as here, the solicitation
authorizes award without discussions. See FAR sect. 15.306(a)(3); Robotic Sys.
Tech., B-278195.2, Jan. 7, 1998, 98-1 CPD para. 20 at 11-12. While the
contracting officer's discretion to make award on the basis of initial
proposals is not unfettered, it is quite broad and has been expanded in
recent years. Robotic Sys. Tech., supra. Here, there is no basis to object
to the agency's decision not to conduct discussions, particularly in view of
the technical superiority of SEA's proposal and its substantially lower
price.

4. The agency reports that it cannot locate the supplemental proposal
information submitted by both offerors, including the ITC proposal's
miscellaneous section. The agency states, however, that the supplemental
information was received by the agency at the time of closing, and, based
upon the post-protest recollection of the evaluators, was reviewed. Agency
Supplemental Report, Aug. 3, 1999, at 1-2. Given the above discussion
showing that, even if the ITC proposal were given the maximum amount of
points available under the personnel and equipment/capabilities evaluation
factors, it still would not be in line for award, we do not see how ITC
could have been prejudiced by the alleged failure of the agency to credit
its proposal under these factors for information contained in its proposal's
miscellaneous section.

5. ITC contends generally that the agency unfairly favored SEA in awarding
that firm the contract. Because government officials are presumed to act in
good faith, we do not attribute unfair or prejudicial motives to them on the
basis of inference or supposition. Ameriko Maintenance Co., B-253274,
B-253274.2, Aug. 25, 1993, 93-2 CPD para. 121 at 5-6. Here, as discussed above,
the evaluation of proposals is reasonably supported by the record and there
is no credible evidence of bias. Although ITC alleges that the contracting
officer was not truthful in statements he allegedly made to ITC (regarding
when he would award the contract, the source of the information to be
included in the agency's answers to ITC's post-debriefing questions, and
regarding his possession of the offerors' proposals during the debriefing),
we do not see how these allegations regarding actions subsequent to the
award determination present valid bases to challenge the award to SEA in a
protest to our Office.