TITLE:  TennierIndustries, Inc., B-286706.2;B-286706.3, March 14,2001
BNUMBER:  B-286706.2;B-286706.3
DATE:  March 14, 2001
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DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective
Order.  This redacted version has been approved for public release.
Decision

Matter of:   TennierIndustries, Inc.

File:            B-286706.2;B-286706.3

Date:              March 14,2001

RuthE. Ganister, Esq., Rosenthal and Ganister, for the protester.
JamesJ. McCullough, Esq., and Steven A. Alerding, Esq., Fried, Frank,
Harris,Shriver & Jacobson, for Tennessee Apparel Corporation, an intervenor.

KatherineA. Day, Esq., Department of Justice, for the agency.
ScottH. Riback, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO,participated in the preparation of the decision.

DIGEST

Protest challenging best valuesource selection decision is sustained where
record shows that agency baseddecision, in part, on considerations not
included in solicitation's evaluationscheme.

DECISION

Tennier Industries, Inc.protests the award of a contract to Tennessee
Apparel Corporation (TAC) underrequest for proposals (RFP) No. TX00000005,
issued by the Federal Bureau ofPrisons (BOP), Department of Justice, for
quantities of laminated camouflagecloth cut into pieces to be used in the
manufacture of trousers.  Tennier maintains that the agencymisevaluated the
offerors' past performance and improperly made its sourceselection decision
based on considerations not set forth in the RFP'sevaluation scheme.

We sustain the protest.

The RFP contemplated the award of anindefinite-delivery/indefinite-quantity
contract for a base year, with two1-year options.  The evaluation was tobe
conducted on a best value basis.  TheRFP listed two non-price evaluation
factors, in descending order of importance:  past performance and
specification statementof work.  RFP sect. M.5.  The solicitation contained no
elaborationregarding what would be encompassed in the agency's review under
these factors,and the agency did not have a source selection plan that
otherwise describedthem.  As for price, for each contractyear offerors were
required to submit fixed unit prices for fabric for ninesizes of trousers,
and also a price for tape used to finish the seams of thetrousers.  RFP sect.
B.  The two non-price factors, when combined,were significantly more
important than price. RFP sect. M.5.

BOP received offers only from TAC and the protester.  After evaluating the
proposals[1],the agency assigned the following point scores:

          Past Perf.      Specif./SOW  Price      Total Score Price
Offeror   (60 avail.      (25 points)  (15 points)
          points)

TAC        [deleted]       [deleted]   [deleted]  [deleted]   [deleted]

Tennier    [deleted]       [deleted]   [deleted]  [deleted]   [deleted]

Based on these evaluation results, the agency selected TACas the firm
submitting the proposal offering the best overall value to thegovernment,
and thus made award to that firm.

PAST PERFORMANCE

Tennier protests the agency's evaluation of its proposalunder the past
performance factor, specifically, that BOP improperly applied theadjectival
standards used in the evaluation, assigning its proposal a ?good?instead of
an ?excellent? rating for each of the three prior contracts that
BOPreviewed.

Our Office does not independently evaluate proposals, butinstead reviews the
agency's evaluation to ensure that it is reasonable andconsistent with the
solicitation's stated evaluation scheme.  Westinghouse Gov't and Envtl.
Servs. Co.,Inc., B-280928 et al., Dec. 4, 1998, 99-1 CPD para. 3 at 5.  When
considering the ratings assigned by anagency to an offeror's proposal we
have consistently taken the position thatevaluation ratings, be they
adjectival, numerical or color, are merely guidesfor intelligent
decision-making in the procurement process.  KBM Group, Inc.,
B-281919,B-281919.2, May 3, 1999, 99-1 CPD para. 118 at 11. The relevant
consideration in our review of an agency's evaluation iswhether the record
demonstrates that the agency reasonably assessed therelative merits of the
proposals in accordance with the stated criteria.  Id.

The record shows that BOP reasonably determined that TAC'spast performance
was superior to Tennier's. In discussing Tennier's performance on two
Defense Supply CenterPhiladelphia (DSCP) contracts, the DSCP representative
stated that there wereno problems noted under either contract, that
deliveries had been timely andquality acceptable, and that he would do
business with Tennier again.  Tennier Past Performance Evaluation
Report,Nov. 20, 2000, at 2.  Similarly,the commenting official for the third
contract (a General ServicesAdministration contract) stated that there were
no quality or other problemswith Tennier's performance, and that the
official would do business with thefirm again.  Id.  These comments not only
are consistent withthe BOP rating scheme--which called for a good rating
where most sources ofinformation state that the offeror's performance was
good or better thanaverage, and that they would willingly do business with
that firm again,Summary of Best Value Reevaluation, Nov. 28, 2000, at
4--but, moreimportantly, when compared to the comments received from TAC's
references,established a reasonable basis for differentiating between the
offerors.  In this regard, TAC's performanceconsistently was described in
more favorable terms, with the officialscommenting that TAC had performed
?with flying colors,? that its ?quality wasgreat,? and that it was an
?excellent company.?  TAC Past Performance Evaluation Report, Nov. 20, 2000,
at 2.  (These comments also are consistent with thestandard articulated for
an excellent rating, which requires the appropriatereviewing officials to
consistently describe the firm's performance assuperior.)  We conclude that
theevaluation in this area was reasonable.

SOURCE SELECTION DECISION

Tennier maintains that the agency's source selectiondecision was improper
because it articulates several benefits associated withthe TAC proposal that
were not specified in the solicitation as evaluationconsiderations.  The
agency respondsthat the additional elements considered (discussed below),
while not expresslyidentified in the RFP, nonetheless were properly
considered as logicallyencompassed by the past performance evaluation
factor.

While agencies have broad discretion in making sourceselection decisions,
their decisions must be rational and consistent with thesolicitation's
stated evaluation scheme; an agency may not announce one basisfor evaluation
and award in the RFP and then evaluate proposals and make awardon a
different basis.  Marquette Med.Sys., Inc., B-277827.5, B-277827.7, Apr. 29,
1999, 99-1 CPD para. 90 at 5-6.

The source selection decision document articulates threeconsiderations other
than past performance that formed the basis for theagency's decision to
select TAC's higher-priced offer for award.[2]  None of these considerations
is eitheridentified in the RFP as an evaluation criterion, or logically
encompassedwithin the stated criteria.  The firstof these considerations is
reflected in the source selection statement asfollows:

The past services received from [TAC] for prompt exchangesfor customer
return are outstanding. The technical assistance provided to [the agency]
was outstanding.  The technical assistance would be worth morethan [the
price difference between the proposals].
Price Analysis After Reevaluation at 1.  The basis for this statement is
notclear.  Neither the RFP nor the agency'spast performance evaluation
materials make any reference to either ?pastservices received for prompt
exchanges? or ?technical assistance provided tothe agency.?  Moreover, there
is nothingin TAC's proposal or in the past performance references that
refers to theseconsiderations, and the agency has not explained the basis
for its conclusionin its report in response to the protest. Thus, even if we
agreed with the agency that these findings arelogically encompassed within
the past performance factor, we would have nobasis for finding that the
agency's conclusion with respect to TAC wasreasonable.[3]

The other two considerations similarly lack support in therecord.  The
source selection decisionsets forth the second consideration as follows:

The cut parts will be exact to the DSCP specification.  Therefore, there
will be far less rejects,and sewing and taping parts together will take less
time.  Less time would be more savings for [theagency].
Price Analysis After Reevaluation at 1.  However, there is no mention of
thisconsideration in either the evaluation criteria outlined in the RFP,
theagency's evaluation materials, or TAC's proposal materials.  Finally, the
source selection decisionstates that:

The exact cuts produced by [TAC] will result in using lessmaterial.  The
material is currently at$28.00 a yard.  It will takeapproximately two yards
to make one pair of pants.  We would estimate that the saving would be
approximately $1.50per trouser by using computerized automated machine.  The
contract is for approximately 225,000 pairs, so the savingsover 3 years
would be at $337,500.
Price Analysis After Reevaluation at 2.  Again, there is nothing in the RFP
or theevaluation materials referring to cost savings attributable to
cuttingprecision, and there is nothing in TAC's proposal relating to
thisconsideration.  Moreover, the agency'sfinding appears to be invalid on
its face. While the agency identifies cost savings to the government
fromefficiencies in TAC's cutting method, as noted above, the
solicitationcontemplated the award of a fixed unit price contract; thus, to
the extent thatTAC's technical approach will result in using less material,
the savings, ifany, will accrue to TAC, not the government. Accordingly, we
sustain Tennier's protest.[4]

RECOMMENDATION

We recommend that, to the extent that the agency wants toconsider the
elements outlined above in connection with its award decision, itamend the
RFP to clearly state the basis upon which proposals will be evaluatedand
award will be made.  If, on theother hand, the agency concludes that the
elements discussed above areunnecessary to meet its requirements, it should
reevaluate the proposals andmake a source selection decision consistent with
our decision.  We further recommend that the agencyreimburse Tennier the
reasonable costs of filing and pursuing its protest, includingreasonable
attorneys' fees, to the extent that those costs were incurred inconnection
with its assertion that the agency improperly considered elementsoutside the
stated evaluation scheme.  4C.F.R. sect. 21.8(d)(1) (2000). Tennier's certified
claim for costs, detailing the time spent and thecosts incurred, must be
submitted to the agency within 60 days of receivingthis decision.
4 C.F.R.sect. 21.8(f)(1).

The protest is sustained.

Anthony H. Gamboa
General Counsel

-------------------------

[1] Theseresults are from a reevaluation conducted by the agency in response
to anearlier protest, which was withdrawn after the agency represented that
it wouldreevaluate proposals and make a new source selection decision.
B-286706, Nov. 17, 2000.  This protest concerns only the reevaluationand new
source selection decision.
[2]Specifically, the document states, ?Based on the above [three
considerations],along with the past performance evaluation information, it
is determined by theContracting Officer that award be made to [TAC].?  Price
Analysis After Reevaluation at 2.
[3] Similarly,the RFP did not mention these considerations under the
specification andstatement of work factor--as indicated, there was no
description or elaborationprovided for this factor; nothing in any of TAC's
submissions makes referenceto these considerations; and the agency did not
prepare any narrative materialsin assigning the two proposals identical
perfect scores for this factor.
[4] The agencystates in its report that it would have made award to TAC even
if it had notconsidered the three additional elements. Agency Report, Jan.
12, 2001 at 20. However, since the record shows that the agency's decision
was expresslybased, in part, on those three elements, we find it
inappropriate to accordthis statement, made in the heat of litigation, any
significant weight.  See Boeing Sikorsky AircraftSupport, B-277263.2,
B?277263.3, Sept. 29, 1997, 97-2 CPD para. 91 at 15.