TITLE:  Digital Imaging Acquisition Networking Associates, Inc., B-285396.3, November 8, 2000
BNUMBER:  B-285396.3
DATE:  November 8, 2000
**********************************************************************
Digital Imaging Acquisition Networking Associates, Inc., B-285396.3,
November 8, 2000

Decision

Matter of: Digital Imaging Acquisition Networking Associates, Inc.

File: B-285396.3

Date: November 8, 2000

Leonard J. Benyak for the protester.

Vickie L. Audette for Control Telecom, Inc., an intervenor

Barbara H. Vail, Esq., U.S. Customs Service, for the agency.

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

DIGEST

Protest that contracting agency unreasonably evaluated protester's offer is
denied where record supports reasonableness of agency's evaluation and
source selection.

DECISION

Digital Imaging Acquisition Networking Associates, Inc. (DIANA) protests the
award of a contract to Control Telecom, Inc. (CTI) under request for
proposals (RFP) No. CS-00-010, issued by the Department of the Treasury,
U.S. Customs Service (USCS) for mobile x-ray services. DIANA argues that the
agency's evaluation was flawed and that its offer should have been selected
for award.

We deny the protest.

The RFP explains that current procedures require that when USCS officers
have reason to believe that a passenger entering the United States is
carrying contraband such as drugs, concealed in their body, these passengers
are escorted to nearby medical facilities for x-rays. [1] Since these
facilities typically are located away from the USCS officers' duty stations
at international airports, the officers leave their work location, travel to
the medical facility and remain with the passenger until an
x-ray is performed and interpreted by qualified medical personnel. USCS has
determined that the interests of the government would be better served if
screening of passengers suspected of internally carrying illegal narcotics
were performed at the airport terminal. The contractor is to provide
services and mobile equipment to take x-ray photographs. If the contractor
provides an on-site board-certified radiologist, the images will be read at
the airport; otherwise, the x-ray images will be digitally transmitted to a
medical facility for "digital remote read" by board-certified radiologists
there. The x-ray process will take place within a fully equipped mobile
facility capable of being moved among the various terminals at the airport.

The RFP, issued as a total small business set-aside, provided for the award
of a fixed-price contract for a base year with 4 option years. The RFP did
not require submission of a written technical proposal; instead, firms were
asked to submit specified pricing information, a contractor qualifications
statement with references, and other written information such as an
implementation plan, a project management plan, and past performance
information. The RFP called for oral presentations in the form of interviews
and performance demonstrations after the submission of offers and stated
that the "sole purpose of the interview is to test [the offeror's] knowledge
of the requirements of the prospective contract." RFP sect. L.7.3.2. Detailed
instructions were provided for the oral presentation, which was to be
limited to 2 hours. The RFP further provided that the agency would not
engage in discussions, as defined by Federal Acquisition Regulation (FAR)
Part 15, at the oral presentations.

The amended RFP provided for award, without discussions, using a best value
determination based upon (1) the merits of the offer (acceptability and
price reasonableness) and (2) the offeror's capability. An offeror's
capability would be determined based on the firm's organizational
experience, its organizational past performance, its understanding of the
government's requirements, and its compliance with the RFP instructions.
Each of the non-price evaluation factors was stated to be equally important,
and when combined, were significantly more important than price.

Under the organizational experience subfactor, the agency would assess each
firm's relevant experience in providing mobile x-ray services, equipment,
and personnel, to meet the solicitation requirements described in the
statement of work (SOW). For past performance, the RFP required customer
references for no more than 10 prior contracts (government or private
sector) that were related to the work required here and stated that only
some of these customer references would be contacted. The RFP advised that
past performance information for key personnel and proposed subcontractors
with relevant experience would also be considered. Understanding the
government's requirements would be evaluated on the basis of the offerors'
oral presentation/interview during which the offeror would address its
technical approach to providing mobile x-ray services to meet the agency's
drug screening. The RFP indicated that the agency would use its assessment
of an offeror's capability to develop a level of confidence assessment
rating (LOCAR) to reflect how well the firm would comply with the terms and
conditions of the solicitation. In determining the best value, the RFP
provided that an offeror's capability was more important than price, and in
making comparisons between offerors, if one offeror had both the better
capability and the higher price, the agency would determine whether the
difference in capability was worth the difference in price.

On February 10, 2000, the extended closing date, five offers were received,
of which two were from large businesses that were ineligible for award under
this small business set-aside. Oral presentations were scheduled, and all
three small business offerors made presentations. Each offeror's written
documentation and oral presentation was separately evaluated and scored by
each of the three members of a technical evaluation team (TET). [2] The TET
prepared an evaluation matrix for the contracting officer, who served as the
source selection official, which included the average of the scores assigned
by the evaluators and a summary of the strengths and weaknesses of each
offer. Agency Report (AR) exh. 9B, Technical Evaluation Team Summary; and
exh. 9C, Individual Evaluator Score Sheets.

CTI's offer received the second-highest total score of 91.3 out of 100
points, [3] with
an evaluated total price of $32,839,074. CTI's evaluation score reflected
the evaluators' judgment that CTI offered a number of strengths including
its documented experience in providing mobile x-ray units across the
country, its highly successful past performance record, and its oral
presentation/interview which addressed every aspect of the RFP and reflected
CTI's clear understanding of the government's requirements. [4] In contrast,
DIANA's offer received a total evaluation score of 71.1 points and its
evaluated total price was $42,902,078.20. DIANA's evaluation score was based
on the evaluators' finding that there were a number of weaknesses in DIANA's
offer. Among other things, the evaluators considered the protester's lack of
mobile diagnostic experience a significant weakness, noting that USCS would
be the firm's first mobile equipment customer; they also considered DIANA's
proposed equipment layout poor and not conducive to an efficient flow of
personnel. In addition, the protester's oral presentation was evaluated as
weak and its offer was downgraded under this capability subfactor because
there was some doubt that the firm understood the solicitation's
requirements. More specifically, the evaluators noted that the firm's
representatives "had a poor understanding of [the] requirement," that their
approach to "maintain[ing] [the] transporter was vague," that their answers
to questions were not specific or not pertinent, and that the firm's
representatives "asked us a lot of questions." AR exh. 9C, Individual
Evaluator Score Sheets.

The contracting officer reviewed the evaluation results and in making
comparisons between CTI and DIANA, she determined that CTI's capability was
better and its offer was lower in price. [5] Accordingly, the contracting
officer concluded that CTI's offer represented the best overall value to the
government and selected CTI for award based on initial offers. A preaward
survey was performed to ensure that CTI was financially capable of
performing the contract and a recommendation for award was made on June 5.
Thereafter, on June 26, prior to receiving the notice of proposed award,
DIANA submitted an unsolicited price proposal in which the firm reduced its
initial price from $42,902,078.21 to $27,515,164. The contracting officer
did not consider DIANA's unsolicited price reduction because it was
submitted after the closing date for receipt of offers and DIANA was not in
line to receive the contract award. On June 30, DIANA was notified of the
proposed award to CTI and DIANA filed an initial protest prior to receiving
a debriefing; our Office dismissed the protest as premature. DIANA filed
this supplemental protest after its scheduled debriefing.

DIANA generally protests that the evaluation of its technical solution was
arbitrary and inconsistent with the SOW, which the protester reads as
requiring a different level of performance than that described at the
debriefing. According to the protester, it learned at the debriefing that
the agency "intended this specification to be a screening such as baggage
screening and/or passenger clothing screening," yet the minimum requirements
in the SOW for the mobile x-ray unit--such as the requirement for image
storage, image printing, and upgraded resolution--indicate that the
solicitation called for more than "mere screening" of passengers.
Supplemental Protest at 2. From this DIANA speculates that the agency did
not evaluate its technical capability under the SOW requirements as written,
or relaxed the SOW requirements for the other offerors.

While DIANA's argument is not entirely clear, its point seems to be that the
evaluation should have been weighted more toward "law enforcement issues"
rather than technical and medical issues, in accordance with the language of
the SOW and oral instructions allegedly given by the contracting officer's
representative at the pre-proposal conference. As support, DIANA identifies
four "law enforcement issues" allegedly required by the SOW--body cavity
search procedures, evidence tampering, protection of the evidence once
obtained, and transportation of the evidence to the interpretation facility.
Protest at 7. The protester maintains that its offer would have been
selected for award had the agency properly evaluated its offer (rather than,
presumably, "relaxing" the requirements to focus on technical and medical
issues), since the protester, in its view, offered the only known solution
that would meet USCS's law enforcement requirements. Id.

We find the protester's reading of the solicitation unreasonable. The SOW
does not identify any specific law enforcement requirements and nothing in
the RFP commits or requires the agency to consider any "law enforcement
issues" in evaluating an offeror's technical capability. [6] As stated in
the solicitation, "the purpose of [the procurement] is to enable USCS to
perform effective and efficient inspection of personnel for contraband such
as drugs. The services shall be capable of detecting contraband concealed in
the torso of persons . . . ." RFP sect. C.1.2. We see no evidence that the
agency deviated from the solicitation's terms or relaxed the requirements in
selecting the awardee.

Moreover, DIANA has not, in fact, produced any specific allegations of
impropriety in the evaluation process. Although the protester received a
formal debriefing and the agency report in response to the protest contained
material and documents setting forth and supporting the agency's position
that the evaluation was in accordance with applicable statute and
regulation, as well as the evaluation factors listed in the solicitation,
DIANA elected not to file a substantive response to the agency report. In
accordance with our Bid Protest Regulations, 4 C.F.R. sect. 21.3 (i) (2000),
DIANA has requested that our Office consider its protest on the basis of the
existing record--the materials supplied by the agency and DIANA's protest
submissions. We have reviewed the record to ensure that the evaluation was
reasonable and consistent with the stated evaluation factors and applicable
statute and regulation. Similarly, to the extent DIANA contends that the
agency relaxed the SOW requirements or otherwise treated the awardee more
favorably than DIANA, we have reviewed the record to determine whether there
was unfair treatment.

We focus our discussion on the evaluation of technical responses under the
understanding the government's requirements (oral interview) evaluation
subfactor since, based on the evaluation points assigned under that
subfactor, DIANA was rated weakest in relation to the other offers. Section
L.7.3.2 provided detailed instructions concerning the oral presentation; for
example, offerors were allocated 15 minutes to discuss their design of the
mobile x-ray unit describing its major elements such as the transporter,
medical x-ray source/detector and housing subsystem and to address their
proposed personnel, indicating where they would be located, how the x-rays
would be read and by whom. According to the contemporaneous evaluation
documentation, the evaluators found DIANA's oral presentation to be "very
weak," "not specific" and "not effective." As described earlier, the
evaluators' score sheets contain numerous critical comments about the
protester's oral presentation.

The record indicates that most of the evaluation criticisms were
attributable to DIANA's failure to describe in detail its approach to
meeting the SOW requirements in its oral presentation as required by the RFP
instructions. In essence, the agency found that DIANA's presentation failed
to adequately demonstrate why the agency should have confidence in DIANA's
understanding of the solicitation requirements, and the protester has
offered no meaningful rebuttal of the agency's position. We therefore find
reasonable the agency's conclusion that the protester's oral presentation
was weak, especially in comparison to the awardee's, which was judged
comprehensive and which more clearly described how the awardee would
accomplish the SOW requirements.

DIANA also claims that the evaluators were biased against it. DIANA claims
the bias is established by the contracting officer's request prior to oral
presentations that DIANA withdraw its offer because the contracting officer
considered the protester's price to be very high and her subsequent refusal
to consider DIANA's unsolicited price reduction. Protest at 9; Supplemental
Protest at 3. Government officials are presumed to act in good faith; we
will not attribute unfair or prejudicial motives to procurement officials on
the basis of inference or supposition. Trataros/Basil, Inc., B-260321, May
30, 1995, 95-1 CPD para. 265 at 3. In addition to producing credible evidence
showing bias, the protester must demonstrate that the agency bias translated
into action that unfairly affected the protester's competitive position.
Pearl Properties, Inc., B-277250.2, Sept. 18, 1997, 97-2 CPD para. 80 at 5.

Here, there is no evidence of bad faith or bias. The agency explains that
the contracting officer gave DIANA the option to withdraw its offer before
it incurred the expense of attending the oral presentation because the
firm's price was 19% higher than the average price proposed by its
competitors and the agency intended to make award without discussions. The
contracting officer's action was reasonable under the circumstances. As
discussed above, the record establishes the propriety of the agency's
evaluation of DIANA's offer, and there is simply no basis to support DIANA's
allegation that the evaluation was biased.

In particular, we find without merit the protester's argument that the
agency's failure to consider its unsolicited price reduction indicates bias
on the part of the agency. Under FAR sect. 15.208(b)(2), a modification of an
offer which is received after the exact time specified for receipt of offers
will not be considered, except, as relevant here, where it is "a late
modification of an otherwise successful proposal, that makes its terms more
favorable to the Government." Here, DIANA was on notice that the agency
would make award on the basis of initial offers and the record shows that
the protester's price reduction was submitted on June 26, more than 4 months
after the February 10 closing date for receipt of offers. By the time DIANA
submitted its price reduction, the contracting officer already had made her
determination to award the contract to CTI; that is, the otherwise
successful offeror was CTI, not DIANA. Accordingly, the contracting officer
had no legal basis to accept DIANA's price reduction. See Schuerman Dev.
Co., B-238464, Apr. 25, 1990, 90-1 CPD para. 423 at 5-6.

The protest is denied.

Anthony H. Gamboa
Acting General Counsel

Notes

1. The agency explains that smugglers swallow pellets containing narcotics
or in other ways hide packets of narcotics in their bodies.

2. Contrary to the solicitation requirements, CTI and DIANA each submitted
written technical proposals. The agency reports that the contracting officer
removed all material in the written proposals except for the information
required by the RFP and that the evaluators reviewed only this required
material. AR exh. 10, Addendum to Technical Evaluation Team's Summary, at 1.

3. The capability subfactors--experience, past performance, and
understanding the government's requirements--were averaged to calculate the
LOCAR; the resulting LOCAR was then multiplied by 10 to arrive at a total
point score based on a 100-point scale. AR exh. 9B, Technical Evaluation
Team Summary, at 1.

4. DIANA was not represented by counsel, and our Office therefore did not
issue a protective order. DIANA was provided only redacted versions of the
agency report and supporting documents. However, in resolving the protest,
we reviewed in camera unredacted copies of all evaluation and source
selection documents in light of the protest arguments raised by DIANA. As
much of the information reviewed by our Office is source selection sensitive
and proprietary in nature, our discussion of the evaluation will necessarily
be limited. For example, our decision here is deliberately general in
describing the actual contents of CTI's offer because of its proprietary
nature.

5. Although the third small business offeror received the highest evaluation
score, with the lowest evaluated price, the agency found this firm was
nonresponsible and the Small Business Administration declined to issue a
certificate of competency (COC) under its COC procedures.

6. To the extent the protester believes that something the agency personnel
said at the pre-proposal conference misled the firm, oral advice, even if
given, does not operate to amend the solicitation or otherwise legally bind
the agency. Nomura Enter., Inc., B-271215, May 24, 1996, 96-1 CPD para. 253 at
4; Materials Management Group, Inc., B-261523, Sept. 18, 1995, 95-2 CPD para.
140 at 3-4. Consequently, the protester's reliance on any oral instructions
was at its own risk.