TITLE:  Century Elevator Inc., B-283822, December 20, 1999
BNUMBER:  B-283822
DATE:  December 20, 1999
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Century Elevator Inc., B-283822, December 20, 1999

Decision

Matter of: Century Elevator Inc.

File: B-283822

Date: December 20, 1999

Brian D. Yoklavich, Esq., Taylor & Yoklavich, for the protester.

Richard P. Fowler, Esq., Proffitt and Fowler, for the John F. Kennedy Center
for the Performing Arts.

Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office of
the General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Where agency reasonably concluded that protester's proposal is not
technically acceptable, agency was not required to consider proposal for
award notwithstanding that protester proposed a lower price than the
awardee.

2. Agency is not required to hold discussions to allow offeror to improve
its proposal where solicitation advises offerors of the possibility of award
without discussions.

DECISION

Century Elevator Inc. protests the rejection of its proposal and the award
of a contract to Millar Elevator Services Company under request for
proposals (RFP)
No. JFKC01-99-R-0007, issued by the John F. Kennedy Center for the
Performing Arts for elevator and escalator maintenance and repair. Century
contends that its proposal should have been selected because it represented
the best value to the government.

We deny the protest.

The RFP, which was issued on April 12, 1999, contemplated the award of a
fixed-price contract, with a time-and-materials portion, for a base and 4
option years. The RFP provided for the evaluation of technical proposals,
past performance, and price, with award to be made to the offeror whose
proposal represented the best value to the government. RFP sect.sect. M.7.1, M.8.1.
Technical subfactors (corporate organization/structure; recruitment of
personnel--training; quality control plan; and resources for additional
personnel and services) were worth 45 points and past performance was worth
55 points. RFP sect.sect. M.7.2.1, M.7.2.2. The RFP stated that price would be
evaluated for reasonableness, realism, and consistency with the offeror's
proposal, but that it would "not be rated because the weight to be accorded
price [could] be determined only after a determination of the relative
merits of the proposal from a past performance/technical standpoint and the
significance of the differences." RFP sect. M.7.2.3. The RFP advised offerors
that the government might award a contract without discussions, and that
their initial proposals should therefore contain their best terms from a
technical and cost or price standpoint. RFP sect. M.8.3.

Six proposals were received by the June 4, 1999 closing date. Because it did
not have staff with the expertise to evaluate the technical proposals
in-house, the Kennedy Center issued a purchase order for the technical
evaluation of proposals
to an outside firm. [1]

After reviewing the technical proposals, the evaluators determined that only
two firms, Millar and Firm A (which was a firm other than Century), had
demonstrated that they were "truly able to provide services that meet the
John F. Kennedy Center contract standards, with [Firm A] lacking in some
areas." Technical Review and Evaluation Report at 3. Millar's proposal was
far more highly rated than Firm A's, receiving 100 percent of the available
technical evaluation points versus 71 percent for Firm A. Id. at 6-7.
Century's technical proposal received only 56 percent of the points
possible, scoring 60 percent or less under all technical evaluation
subfactors. Id. at 8. The evaluators noted that they considered the majority
of Century's responses to the evaluation subfactors "to be marginal in terms
of basic content and level of information the government seeks for
evaluation purposes." Id.

The contracting officer considered the results of the technical evaluation,
along with past performance information and price, in determining which
proposal represented the best value to the government. She determined that
Millar's proposal, which had received both the highest technical score and
the best overall past performance ratings, and which was only 2 percent
higher in price than Firm A's, represented the best value to the government.
Contract Award Memorandum Without Discussions

at 9. On September 22, she awarded a contract to Millar.

Century argues that it should have received the award because its proposal
met or exceeded the technical requirements in the RFP and was lower priced
than the awardee's. [2] As discussed below, however, the record shows that
in fact the agency found that Century's proposal, as submitted, was not
technically acceptable (although it may have been susceptible of being made
acceptable through discussions). As a result, the agency was not required to
consider Century's proposal for award notwithstanding its lower price. ITT
Fed. Servs. Corp.,
B-250096, Jan. 5, 1993, 93-1 CPD para. 6 at 8; Elsinore Aerospace Servs., Inc.,
B-239672.6,
Apr. 12, 1991, 91-1 CPD para. 368 at 6.

As noted above, Century's technical proposal scored 60 percent or lower on
all of the technical evaluation subfactors. According to the scoring
guidelines, [3] a score of 60 percent signified (1) that "[t]he offeror
ha[d] demonstrated an approach which fail[ed] to meet the stated
requirements;" (2) that "[t]he response [was] considered marginal in terms
of the basic content and level of information the Government [sought] for
evaluation;" and (3) that "there [were] deficiencies, but they [were]
susceptible to correction through discussions." Letter from Contracting
Officer to Firm Selected to Perform Technical Evaluation attach. 1 (June 18,
1999). Among the deficiencies and weaknesses noted by the evaluators were
the failure of the proposal to elaborate on the depth of the offeror's
service teams; to "address training, personnel, logistics or operations of
elevator/escalator team"; [4] and to demonstrate that the offeror could
furnish additional personnel when necessary. Technical Review and Evaluation
Report at 8-9. The evaluators also noted that the offeror's proposed quality
control plan was conflicting in that it provided for the on-site mechanic to
ride each unit and examine all major components of each elevator plant
daily; according to the evaluators, "[t]he proximity and number of units
involved [made] this impractical as it would leave little or no time to
perform recommended ‘check chart' preventive maintenance services."
Id. Based on these findings, both the technical evaluators and the
contracting officer concluded that Century's proposal was not technically
acceptable. See id. at 3, 8; Contract Award Memorandum Without Discussions
at 9; Contracting Officer's Statement at 8.

Century does not take issue with the evaluators' criticisms of its proposal
or the scores that it received under the various technical evaluation
subfactors, and we see no basis in the record to question the agency's
findings. Accordingly, given its conclusion that Century's proposal was not
technically acceptable, the agency was under no obligation to consider the
proposal for award. ITT Fed. Servs. Corp., supra; Elsinore Aerospace Servs.,
Inc., supra.

Although Century does not challenge the scores its proposal received, it
does argue that its proposal should not have been excluded from
consideration because it was susceptible of being made acceptable through
discussions. This argument is without merit.

The solicitation here advised offerors that the government intended to
evaluate proposals and might award a contract without discussions, and that
their initial proposals should therefore contain their best terms from a
technical and cost or price standpoint. RFP sect. M.8.3. There is no requirement
that the agency hold discussions where the solicitation advises offerors of
the possibility of award without discussions. FAR sect. 15.306(a)(3); Kahn
Instruments, Inc., B-277973, Dec. 15, 1997, 98-1 CPD para. 11 at 8. In such
circumstances, the burden is on the offeror to submit an initial proposal
containing sufficient information to demonstrate its merits, and an offeror
failing to do so runs the risk of having its proposal rejected. Kahn
Instruments, Inc., supra. Moreover, an agency is not precluded from awarding

on an initial proposal basis merely because an unacceptable lower offer
could be made acceptable through discussions. Integration Techs. Group,
Inc.,
B-274288.5, June 13, 1997, 97-1 CPD para. 214 at 6.

The protest is denied.

Comptroller General
of the United States

Notes

1. The evaluation of past performance was not contracted out; it was
performed by the contracting officer.

2. Century also asserts that the RFP improperly failed to set forth the
relative importance of price and non-price factors. Solicitations must
disclose the relative weights of price and other factors. See 41 U.S.C.
sect. 253a(c)(1)(C) (1994); Federal Acquisition Regulation (FAR) sect. 15.304(e).
The RFP here, however, provided that the weight to be accorded price could
be determined "only after a determination of the relative merits of the
proposal from a past performance/technical standpoint and the significance
of the difference." RFP sect. M.7.2.3. Although the RFP was thus defective, the
defect was patent; accordingly, any protest of the impropriety was required
to be filed prior to the time set for receipt of initial proposals, when the
issue could easily have been resolved. Bid Protest Regulations, 4 C.F.R.
sect. 21.2(a)(1) (1999); Meridian Corp., B-246330.3, July 19, 1993, 93-2 CPD
para. 29 at 5. Any protest of the terms of the solicitation is now untimely. Id.
In any event, there is no basis to conclude that Century was prejudiced by
this defect since, as explained further above, the agency reasonably found
its proposal technically unacceptable and thus not eligible for award.

3. The contracting officer provided guidelines to the evaluators to use in
scoring proposals. The 100 total points available were broken down into
20-point increments with corresponding definitions. Specifically, 100
percent of the points were to be awarded to a proposal with no deficiencies;
80 percent if there were no deficiencies and any weaknesses were minor and
could be readily corrected; 60 percent if there were deficiencies, but they
were susceptible to correction through discussions; 40 percent if the
deficiencies were so extensive that a major revision to the proposal would
be necessary to correct them; and 20 percent if the "offeror's failure is
certain." Letter from Contracting Officer to Firm Selected to Perform
Technical Evaluation attach. 1 (June 18, 1999).

4. The RFP instructed that: "The contractor must be able to demonstrate that
management personnel are experienced and have received the appropriate
training. The management team should demonstrate its ability to deal with
personnel, logistics, and operations of an elevator/escalator team." RFP
sect. L.17.3.1.2, at 81.