TITLE: SOS Interpreting, Ltd., B-287477.2, May 16, 2001
BNUMBER: B-287477.2
DATE: May 16, 2001
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SOS Interpreting, Ltd., B-287477.2, May 16, 2001
Decision
Matter of: SOS Interpreting, Ltd.
File: B-287477.2
Date: May 16, 2001
J. Patrick McMahon, Esq., and William T. Welch, Esq., Barton, Baker, McMahon
& Tolle, LLP, for the protester.
J. Michael Sawyers, Esq., Drug Enforcement Administration, for the agency.
Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Agency was not required to conduct discussions with protester aimed at
lowering its proposed price below the awardee's, even though award was
ultimately based on lowest price, where agency determined that protester's
price was reasonable and comparable to other offerors' prices.
2. Allegation that evaluation of proposals was flawed is denied where,
although the agency applied unequally weighted evaluation subfactors, in
view of the minimal differences between the assumed equal weights and actual
weights assigned, and the protester's high total price, there is virtually
no possibility that the protester was prejudiced in the evaluation.
DECISION
SOS Interpreting, Ltd. (SOS) protests the award of a contract to
Comprehensive Technologies, Inc. (CTI) under request for proposals (RFP) No.
DEA-00-R-0013, issued by the Drug Enforcement Administration (DEA) for
translation and technical support services. SOS argues that the agency did
not conduct meaningful discussions with the firm regarding its proposed
price, and maintains that the agency improperly applied unequally weighted
evaluation subfactors.
We deny the protest.
The RFP, issued on April 14, 2000, contemplated the award of a fixed-price,
indefinite-delivery/indefinite-quantity contract for a base year with up to
four 1-year option periods. RFP sect.sect. B.2, B.8, L.4. Offerors were required to
submit proposals in separate volumes--a technical proposal and a business
management proposal. Id. sect. L-6.1(3). For each contract period, offerors were
required to submit unit and extended hourly labor rates for estimated
quantities of 12 different labor categories. Id. amend. No. 4, sect. B. The RFP
listed the following technical evaluation factors (maximum possible number
of points for each factor shown in parentheses): furnishing qualified
personnel (35), quality control plan (25), management plan (10),
subcontracting plan (10), and past performance/risk assessment (20), for a
maximum possible total of 100 points. Id. sect. M.5. Although price was not to
be numerically scored, the RFP explained that its degree of importance would
increase as proposals were considered equal in relation to technical
factors. Id. sect. M.4.B, at M-3. The RFP stated that technical factors combined
were substantially more important than price. Id. sect. M.2.B. Award was to made
on the basis of the proposal deemed to represent the best value to the
government. Id. sect. M.2.A.
Nine firms, including SOS and CTI, responded to the RFP by the time set on
June 21, for receipt of proposals. On July 10, the agency convened a
technical evaluation panel (TEP) to evaluate technical proposals. Prices
were separately evaluated. The contracting officer (CO) determined that the
TEP's initial evaluation was inadequate, set aside these evaluations, and
convened a different panel to evaluate proposals. CO Statement, Apr. 26,
2001, at 4. Based on the results of these evaluations, the CO excluded three
proposals from further consideration, established a competitive range
comprised of the remaining six proposals, conducted discussions with these
six firms, and requested and received final proposal revisions (FPR). The
TEP reevaluated proposals based on FPRs. The following table shows the
results of the final evaluations.
Offeror Pers. Qual. Mgmt. Sub. Past Total Price
Perf.
Cont. Plan Plan Score
CTI 33 24 7 9 18 91 $26,872,408
A 33 24 8 8 16 89 28,616,442
B 33 22 9 8 20 92 29,399,225
C 33 23 9 9 19 93 30,154,638
D 33 23 9 9 16 90 30,635,358
SOS 32 22 9 9 15 87 31,442,927
Agency Report (AR), exh. 5, Final Technical Evaluation Report, Jan. 31,
2001; exh. 8 Price Analysis.
Based on the results of the final technical and price evaluation, the CO
awarded the contract to CTI. This protest followed a debriefing.
SOS argues the agency failed to conduct meaningful discussions because,
except for raising questions regarding the prices of SOS's proposed
subcontractors, DEA never advised SOS that its price was too high. SOS
argues that it was prejudiced by the agency's allegedly flawed discussions
because, since the CO selected CTI primarily on the basis of that firm's
lower price, DEA should have informed SOS during discussions that its total
price was higher than CTI's. This argument is without merit.
Under Federal Acquisition Regulation (FAR) sect. 15.306(e)(3), "the [CO] may
inform an offeror that its price is considered by the Government to be too
high, or too low, and reveal the results of the analysis supporting that
conclusion." This language clearly gives the CO discretion to inform the
offeror that its price is too high, but does not require that the CO do so,
especially where, as here, the agency does not consider the price a
significant weakness or deficiency that the offeror could alter or explain
to enhance the proposal's potential for award. National Projects, Inc.,
B-283887, Jan. 19, 2000, 2000 CPD para. 16 at 5; see also KBM Group, Inc.,
B-281919, B-281919.2, May 3, 1999, 99-1 CPD para. 118 at 8-9 (agency did not
mislead protester during discussions, even though award was ultimately made
based on price and agency did not inform protester that its price was higher
than awardee's price, where agency did not believe that protester's price
was too high for the approach taken).
Here, the record shows that the agency conducted a price analysis of
proposed prices pursuant to FAR sect. 15.404-1(b)(2), and determined that SOS's
price was reasonable---a determination that SOS does not contest.
Specifically, a comparison of all offerors' direct labor rates for all labor
categories revealed that they were all competitive and comparable. Further,
although the CO recognized in her analysis that CTI proposed lower labor
rates for some categories than other offerors, she determined that all
offeror's rates were comparable. See AR exh. 8, Price Analysis, Feb. 23,
2001. Since the CO reviewed proposed prices and determined that SOS's price
was competitive and not unrealistically high, DEA had no duty to advise SOS
during discussions that its price was high compared to that of CTI's. [1]
See Cherokee Info. Servs., B-287270, Apr. 12, 2001, 2001 CPD para. ___.
SOS argues that the evaluation of its proposal in the past performance area
was improper based on the unequal weighting of the subfactors. In evaluating
proposals under this factor, the TEP applied the following three subfactors
and weights--relevancy (10 points), performance improvements (5 points), and
past performance surveys (5 points). The protester contends that since the
RFP did not list the subfactors' relative weights, offerors were entitled to
assume that they would be considered of equal in importance. The protester
maintains that it was prejudiced in the evaluation because it would have
prepared its proposal differently had it known of the actual weighting
scheme the TEP applied.
SOS is correct that, where the relative weights of subfactors are not
disclosed in the RFP, the subfactors are understood to be of equal
importance to each other. North-East Imaging, Inc., B-256281, June 1, 1994,
94-1 CPD para. 332 at 2. However, competitive prejudice is an essential element
of every viable protest. Geonex Corp., B-274390.2, June 13, 1997, 97-1 CPD para.
225 at 4. Our Office will not sustain a protest unless the protester
demonstrates a reasonable possibility that it was prejudiced by the agency's
actions, that is, unless the protester demonstrates that, but for the
agency's actions, it would have had a substantial chance of receiving the
award. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at 3; see
Statistica, Inc. v. Christopher, 102 F.3d. 1577, 1581 (Fed. Cir. 1996).
Although SOS asserts that it was competitively prejudiced as a result of the
agency's unequal weighting of the past performance subfactors, it is not
apparent how different weights would have affected the manner in which SOS
prepared its proposal. In particular, there is no reason to believe that SOS
would have provided any more or different information concerning its
performance history had the agency applied equal weights to the subfactors.
Moreover, the point differences between the actual evaluation weighting of
the three subfactors and the equal weighting assumed by the protester (6.66
points for each subfactor), in the assessment of past performance, is so
minimal that this difference, when considered with SOS's high price, renders
the potential for prejudice virtually nonexistent. In fact, had the TEP
weighted the past performance subfactors equally, SOS's proposal would have
earned 13.98 points in this area, while CTI's proposal would have earned
17.32 points. [2] The relative standing of the protester's and the awardee's
proposals, therefore, would remain unaffected.
The protest is denied.
Anthony H. Gamboa
General Counsel
Notes
1. To the extent that SOS argues that discussions concerning its price were
ambiguous, its argument is meritless. The record shows that during oral
discussions, SOS "was reminded that this was a competitive environment and
that proposed pricing was considered high." AR exh. 7, CO's Memo to File,
Dec. 8, 2000. SOS apparently ignored DEA's reminder and increased its total
price more than $350,000 in its FPR.
2. We calculated these scores by converting the actual scores assigned the
proposals for each past performance subfactor to their equivalent of the
assumed weights. SOS's proposal earned 9, 4, and 2 points, for the past
performance subfactors, respectively. Assuming equal weights, these scores
convert to 5.99, 5.33, and 2.66 points, for a total score of 13.98 points
for past performance. CTI's proposal earned 10, 4, and 4 points in this
area, which convert to 6.66, 5.33, and 5.33 points, for each of the three
subfactors, for a total score of 17.32 points for past performance.