TITLE:  Millar Elevator Service Company, B-284870.4, December 27, 2000
BNUMBER:  B-284870.4
DATE:  December 27, 2000
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Millar Elevator Service Company, B-284870.4, December 27, 2000

Decision

Matter of: Millar Elevator Service Company

File: B-284870.4

Date: December 27, 2000

Susan L. Schor, Esq., McManus, Schor, Asmar & Darden, for the protester.

Jeffrey S. Baird, Esq., Bewley, Lassleben & Miller, for Amtech Elevator
Services, an intervenor.

Robert J. McCall, Esq., General Services Administration, for the agency.

Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

  1. Protest that agency was required to reject awardee's proposal for
     failing to

acknowledge a solicitation amendment is denied where awardee's technical
proposal, and the signed price proposal that the awardee submitted in
response to the amendment, obligated the awardee to perform in accordance
with the solicitation as amended.

2. Agency held meaningful discussions with protester where it pointed out
significant weaknesses; other weaknesses were not required to be discussed
because they were either insignificant or introduced into protester's
proposal following discussions.

DECISION

Millar Elevator Service Company protests the award of a contract to Amtech
Elevator Services under solicitation for offers (SFO) No.
GS-03P-CDC-00-0006, issued by the General Services Administration (GSA) for
elevator modernization and maintenance in the Moorhead Federal Building in
Pittsburgh, Pennsylvania. Millar complains that GSA performed an
unreasonable evaluation of its and Amtech's technical proposals, failed to
hold meaningful discussions with Millar, and performed an improper
price/technical tradeoff. [1]

We deny the protest.

The SFO, issued on October 29, 1999, contemplated the award of a fixed-price
contract, on a best-value basis. The evaluation was to be based on six
technical evaluation criteria, listed in descending order of
importance--design; maintenance and performance history; modernization
experience and past performance; schedule, key personnel and staffing plan;
women-owned business, and small disadvantaged business participation in
subcontracting--and price, which was slightly less important than the
technical criteria. SFO vol. 4, pt. 3, para.para. 1.3, 2.2.

Millar and Amtech were the only two offerors that responded to the
solicitation. A source selection board (SSB) evaluated the technical
proposals and the contracting officer evaluated the price proposals. After
two rounds of discussions and the submission of first and second best and
final offers (BAFO), GSA determined that Amtech's proposal represented the
best value, and therefore selected that firm for award. Millar protested the
award decision. Following an "outcome prediction" alternative dispute
resolution conference conducted at the request of the parties, the General
Accounting Office attorney handling the matter advised the parties that
there appeared to be errors in GSA's evaluation. Following the conference,
GSA proposed corrective action that led to our dismissing the protest.
Thereafter, GSA issued amendment No. 4 to make changes to the solicitation,
requested third BAFOs, evaluated those BAFOs, and performed a new best-value
analysis. Contracting Officer's Statement (COS) at 3, 4. Amtech was again
selected for award and Millar now protests the new award decision.

Millar challenges the evaluation on numerous grounds. We have reviewed the
record and find all of Millar's arguments to be without merit. We discuss
Millar's primary arguments below.

ACKNOWLEDGMENT OF AMENDMENT

Millar protests that Amtech's offer should have been rejected as
unacceptable because Amtech did not acknowledge amendment No. 4.

Where an offeror fails to acknowledge an amendment, the agency is not
required to reject the offer if the offeror is otherwise obligated to
perform in accordance with the terms of the solicitation. MR&S/AME, An MSC
Joint Venture, B-250313.2, Mar. 19, 1993, 93-1 CPD para. 245 at 5.

Amendment No. 4 deleted options 1, 2 and 8 and the asbestos abatement work
from the SFO, deleted a requirement for offerors to submit past performance
references from the Pittsburgh area, and required offerors to propose an
alternate premium finish (specified by the solicitation as Corian) for the
elevator cabs. The amendment also requested revised BAFOs, but provided that
the agency would consider an offeror's original proposal if it chose not to
submit a BAFO. Amtech did not submit a revised technical proposal, and since
the amendment had the principal effect of deleting, rather than adding,
work, Amtech remained obligated under its unrevised technical proposal to
perform all of the work required under the SFO as amended. Further, Amtech
did submit a revised price proposal that reflected the work to be performed.
It deleted prices for options 1, 2 and 8, and reduced Amtech's total price
to account for the elimination of the asbestos abatement work. Amtech's
revised price proposal already included a price for the Corian alternate
premium finish for the elevator cabs. (Amtech's original technical proposal
also included Corian as an alternate premium finish.) We conclude that
Amtech's failure to formally acknowledge the amendment did not render its
proposal unacceptable.

EVALUATION

Elimination of Options

The solicitation as initially issued, and the contract originally awarded to
Amtech, included the basic work plus option items. SFO app. C at 3-4. As
discussed above, amendment No. 4 deleted the asbestos abatement work plus
option items 1 and 2 from the SFO; this was because this work would be
completed by Amtech by the time the new evaluation and award took place. COS
at 3. Noting that the award document for the new award to Amtech (following
the reevaluation) refers to option items 1 and 2, Millar asserts that the
award improperly exceeds GSA's minimum needs, since it includes deleted
work.

These assertions are without merit. GSA explains that, following the
reevaluation, it did not award a new contract to Amtech; it merely
reaffirmed the original award, leaving in place Amtech's contract, which
included option items 1 and 2. COS at 4. The award document refers to option
items 1 and 2, not because the work is to be performed again, but because
Amtech already has performed the work under its original contract and will
be entitled to payment for that work. Agency Report (AR) at 4-5. There is no
basis for questioning the agency's explanation.

Cab Finish

The solicitation as initially issued required offerors to propose a deluxe
and a premium finish for the elevator cabs. COS at 1. The premium finish was
specified as marble, although offerors could also offer an alternate premium
finish. See SFO vol. 3, sect. 40.1(c). Amendment No. 4 made it mandatory for
offerors to propose Corian as an alternate premium finish. Amend. No. 4 at
3. Millar asserts that, notwithstanding these provisions requiring that
premium finishes be offered, GSA improperly considered only the deluxe
finish in evaluating BAFOs under the technical design factor. This argument
is without merit. GSA concedes that it evaluated only the deluxe finish, but
explains that this is because the SFO prescribed the premium and alternate
premium finishes, so there was no design effort on the part of the
contractor for the agency to evaluate with regard to these finishes. COS at
7. Amtech has not rebutted the agency's position by explaining what it
believes GSA was required to evaluate with regard to the premium finishes,
and we find the agency's position reasonable.

References

Millar furnished new past performance references in its BAFO in response to
amendment No. 4. Millar maintains that GSA improperly failed to contact
three of these references, and that this was contrary to the terms of the
SFO. This argument is without merit. The SFO did not provide that the agency
would contact any specific number of references; rather, it required
offerors to include past performance references and simply stated that the
agency would evaluate past performance. The source selection evaluation plan
did provide for contacting three references, but this plan is an internal
agency document that provided guidance in the evaluation and award process;
unlike the solicitation, this plan did not confer any rights on offerors,
and therefore does not provide a basis for challenging the evaluation.
General Sec. Servs., Corp., B-280388, B-280388.2, Sept. 25, 1998, 99-1 CPD para.
49 at 6. [2]

DISCUSSIONS

Millar asserts that GSA improperly failed to address a number of evaluated
proposal weaknesses during discussions. Although discussions must address at
least deficiencies and significant weaknesses identified in proposals, the
scope and extent of discussions are largely a matter of the contracting
officer's judgment; they need not address every area of a proposal where the
ratings could be improved. MCR Fed., Inc., B-280969, Dec. 14, 1998, 99-1 CPD
para. 8 at 11; Consolidated Eng'g Servs., Inc., B-279565.5, Mar. 19, 99-1 CPD para.
76 at 9. Nor is an agency required to reopen discussions to raise a weakness
or deficiency that an offeror introduced into a BAFO. Joint Threat Servs.,
B-278168, B-278168.2, Jan. 5, 1998, 98-1 CPD para. 18 at 10.

GSA has responded to each allegation of alleged inadequate discussions by
explaining that the weakness was pointed out during discussions, or that
discussions were unnecessary because the weakness was insignificant or first
introduced in Millar's BAFO. In most cases, Millar has not substantively
responded to GSA's position, but instead has simply repeated the statements
it made in its protest. Based on our review of the record, we find that the
discussions were adequate. We discuss specific examples below.

Millar asserts that the agency did not discuss its concerns regarding
whether Millar included everything in its proposed price, the rumored
retirement of its [deleted] and the competence of its proposed [deleted].
However, the record shows that the agency did discuss with Millar its
proposed pricing and the rumored retirement of its [deleted} and that, in
fact, these issues were not considered weaknesses during the final
evaluation. See AR at 4-8. GSA also raised (during January discussions and
at the firm's oral presentation) its concern that Millar's [deleted] was
unable to [deleted] specified by the solicitation. COS at 11. Millar does
not dispute this, but asserts that its cab manufacturer did develop a design
by the time Millar submitted its February BAFO, and that the agency should
have discussed any concerns that remained following this BAFO. This argument
is without merit. The fact that the [deleted] eventually came up with a
[deleted] did not eliminate all of the agency's legitimate concerns; the
agency reasonably could question the level of competence of the [deleted]
given the time it took to develop [deleted]. Since GSA put Millar on notice
of its concern, it was not required to raise this matter again. See OMV
Med., Inc., B-281490, Feb. 16, 1999, 99-1 CPD para. 38 at 7 (agency is not
required to conduct successive rounds of discussions until omissions are
corrected).

Millar also argues that the agency did not discuss with Millar its concern
over Millar's proposed use of the [deleted] device and an ambiguity in its
proposal with respect to whether the [deleted] controller it proposed had
predictive call assignment. Prior to submitting its May BAFO, Millar
proposed to install the [deleted] device, and offered the [deleted] device
as an optional item GSA could select. COS at 13. GSA had concerns with the
[deleted] device, but did not discuss them with Millar because it did not
intend to select the [deleted] device. In its May BAFO, Millar eliminated
the [deleted] device and proposed only the [deleted device. Millar maintains
that the agency was required to discuss any concerns it had with the
[deleted] device. We disagree. Since the [deleted] device originally was
only offered as an option, and the agency did not intend to select it, the
agency had no reason to evaluate it or to discuss its concerns about it with
Millar. Only when Millar introduced the device as a nonoptional item in its
final BAFO did the agency's concerns become relevant. However, GSA was not
required to reopen discussions at that juncture to raise its concern. Joint
Threat Servs., supra, at 10. Similarly, the agency was not required to
discuss the ambiguity with respect to the predictive call assignment of the
[deleted] controller, since this ambiguity also was first introduced in the
firm's May BAFO.

Millar asserts that the agency failed to point out several additional items,
including concern over its proposed [deleted] and [deleted]. However, these
were minor matters that the agency was not required to discuss. For example,
while the score sheets are not broken down specifically for each design
feature, Millar lost only [deleted] points for the entire conceptual design
area, COS at 9 and Scoresheets for BAFO 3, and the agency's concerns with
the proposed [deleted] and [deleted] did not play any role in the agency's
best-value determination. Again, an offeror is not entitled to discussions
simply because it did not receive the maximum available points for a certain
factor. See MCR Fed., Inc., supra.

Millar asserts that, because there was only a [deleted] point difference
between its and Amtech's technical scores, any weakness could have affected
the award decision; therefore, all of the evaluated weaknesses were
significant and should have been raised in discussions. This argument is
without merit. We will not find that an agency improperly failed to advise
an offeror of a weakness reasonably viewed during the evaluation as minor
merely because, as the competition played out, the weakness could have been
a determinative factor in choosing between two closely ranked proposals.
Brown & Root, Inc. and Perini Corp., a joint venture, B-270505.2,
B-270505.3, Sept. 12, 1996, 96-2 CPD para. 143 at 6.

Best-Value Determination

Millar argues that it was unreasonable for GSA to pay a price premium of
[deleted] for Amtech's proposal based on its [deleted] point technical
scoring advantage.

Price/technical tradeoffs may be made in deciding between competing
proposals; the propriety of such a tradeoff turns, not on the difference in
technical scores or ratings per se, but on whether the agency's judgment
concerning the significance of the difference was reasonable and adequately
justified in light of the evaluation scheme. SEEMA, Inc., B-277988, Dec. 16,
1997, 98-1 CPD para. 12 at 6. In this regard, evaluation scores are merely
guides for the selection official, who must use his or her judgment to
determine what the technical difference between competing proposals might
mean to contract performance. Id.

Here, the record shows that GSA's award decision was based, not on the point
scores, but on the identified strengths and weaknesses of the technical
proposals balanced against the difference in price. AR at 14-16. In the
final analysis, the agency chose Amtech's proposal over Millar's because
Amtech's technical proposal was viewed as superior to Millar's under both
the design and modernization experience factors--the most important and
third most important factors--and offered a significantly higher level of
elevator maintenance. Id. Given that price was less important than technical
factors in the award decision, GSA reasonably could determine that the
superiority of Amtech's proposal was worth its higher price.

The protest is denied.

Anthony H. Gamboa

Acting General Counsel

Notes

1. Millar has filed a supplemental protest (B-284870.5) that is pending and
which we intend to address in a separate decision.

2. Millar asserts that the agency improperly downgraded its proposal under
the design factor for failure to propose a graphical user interface (GUI)
based on the Microsoft Windows™ operating system, since the SFO did
not require the GUI to be Windows™-based. Under our Regulations,
allegations such as this must be raised no later than 10 days after they
were known. 4 C.F.R. sect. 21.2(a)(2) (2000). GSA reports, and Millar does not
dispute, that it told Millar during its March debriefing that its [deleted]
GUI was a weakness. Id. This being the case, since Millar did not raise this
issue until more than 10 days after its debriefing, the argument is now
untimely. In any case, GSA notes that, while the SFO did not require that
the GUI be Windows™-based, it did specify a "preference" for a
Windows™-based GUI. SFO vol. 3, para. 23.10, COS at 8. We have recognized
that an evaluation properly may take into account whether an offeror has
proposed to perform in accordance with preferences listed in the
solicitation. See HG Properties A, L.P., B-284170 et al., Mar. 3, 2000, 2000
CPD para. 36 at 8.