TITLE:  A&D Fire Protection Inc., B-288852, December 12, 2001
BNUMBER:  B-288852
DATE:  December 12, 2001
**********************************************************************
Decision

Matter of: A&D Fire Protection Inc.

File: B-288852

Date: December 12, 2001

Andrew R. Otero, for the protester.

Phillipa L. Anderson, Esq., Department of Veterans Affairs, for the agency.

Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest challenging the agency's "best value" selection, which was to
consider both technical factors and price, is sustained where the agency
failed to consider the technically acceptable protester's lower proposed
price.

DECISION

A&D Fire Protection Inc. protests the award of a contract to Stronghold
Engineering, Inc. under request for proposals (RFP) No. 101-AC-0189, issued
by the Department of Veterans Affairs (VA), for design and construction
services at the National Cemetery, San Diego, California. A&D contends that
its low price was not considered in the award selection.

We sustain the protest.

The RFP was restricted to firms certified under the Small Business
Administration's section 8(a) set-aside program and provided for the award
of a fixed-price contract for the design and construction of columbarium
niches at the National Cemetery in San Diego, California. [1] The
solicitation stated that award would be made "on the basis of both cost and
technical considerations most advantageous to the government." The RFP
listed the following evaluation factors, in descending order of importance:
(1) price, (2) construction management including experience,
(3) past performance with projects of similar scale and scope, and
(4) schedule. Offerors were further informed that all technical factors
combined were approximately equal in importance to price. RFP at 5. Offerors
were also informed that the agency intended to make award without conducting
discussions. RFP at 00101-4.

The VA received six proposals, including those of A&D and Stronghold, which
were evaluated as follows:

 Offeror             Overall Technical        Price
                     Score

                     (of 100 maximum
                     points)

 A                   73.6                     $3,675,000

 Stronghold          72.4                     $3,398,124

 B                   72.4                     $4,660,605

 A&D                 66.2                     $3,250,000

 C                   56.4                     $4,122,249

 D                   40.8                     $3,563,063

Agency Report, Tab I, Technical Proposal Evaluation Memorandum (July 9,
2001), at 1; Tab J, Price Proposal Evaluation Memorandum (July 9, 2001), at
1.

Under the construction management/experience technical factor (which the RFP
stated had a weight of 50 points), the proposals of Stronghold and A&D
received identical scores of 35.8 points. The VA noted that both firms
proposed to use the same design firm, which had considerable experience in
cemetery work with the VA. Neither firm had direct experience performing
cemetery work for VA, but Stronghold's construction experience was found to
more closely relate to cemetery construction than did A&D's. Agency Report,
Tab M, Memorandum of Evaluation Team Leader (Oct. 16, 2001), at 1-2.

Under the past performance factor (which had a weight of 25 points), the
proposals of Stronghold and A&D received scores of 17.8 and 14.8 points,
respectively. Stronghold's 3-point advantage reflected the evaluators'
judgment that although each firm had demonstrated client satisfaction,
Stronghold had provided "[s]everal highly innovative examples of past
partnering and communication with both the client and the community" while
A&D's "information presented . . . standard practices." Id.

Under the scheduling factor (which had a weight of 25 points), the proposals
of Stronghold and A&D received scores of 18.8 and 15.6 points respectively.
Each firm demonstrated its understanding of the required schedule and the
agency's needs. Stronghold's 3.2-point higher score reflected Stronghold's
offer to accelerate the performance schedule. Id.

The results of the technical evaluation were presented to the contracting
officer with the team's recommendation that the proposals of A&D and
offerors C and D be eliminated from further consideration on the basis of
those firms' proposals' lower technical scores. The evaluation team also
stated that the proposals of Stronghold and offerors A and B were
technically equivalent, and recommended that these firms' proposals be
retained in the competition. Agency Report, Tab I, Technical Proposal
Evaluation Memorandum (July 9, 2001), at 2.

Subsequently, the evaluation team leader reported to the contracting officer
that Stronghold's proposal had offered the lowest overall price of the
proposals retained in the competition, and recommended that award therefore
be made to Stronghold. Agency Report, Tab K, Memorandum of Evaluation Team
Leader (July 11, 2001), at 1. The contracting officer accepted the
evaluation team leader's recommendation, and award was made to Stronghold on
the basis of initial proposals, without conducting discussions. Agency
Report at 8. This protest followed.

A&D complains that although the RFP stated that price was "the most
important factor," its overall low price was not considered by the agency in
the source selection. Protester's Comments at 1.

Cost or price to the government must be included in every RFP as an
evaluation factor, and agencies must consider cost or price to the
government in evaluating competitive proposals. 10 U.S.C. sect.
2305(a)(3)(A)(ii) (2000); FAR sect. 15-304(c)(1); S.J. Thomas Co., Inc.,
B-283192, Oct. 20, 1999, 99-2 CPD para. 73 at 3. This requirement means that an
agency cannot eliminate a technically acceptable proposal from consideration
for award without taking into account the relative cost of that proposal to
the government. Beacon Auto Parts, B-287483, June 13, 2001, 2001 CPD para. 116
at 6-7.

In its report, VA states that it eliminated, without any consideration of
price, the offers of those proposals, including A&D's, that the agency
judged to be not "sufficiently technically capable to perform the project."
Agency Report at 9-10. The agency states that it could first eliminate the
lower technically related proposals and consider the prices of only the more
highly rated offerors. Id. The elimination of technically acceptable
proposals without meaningful consideration of price is inconsistent with the
agency's obligation to evaluate proposals under all of the solicitation's
criteria, including price. [2] See Kathpal Tech., Inc.; Computer & Hi-Tech
Mgmt., Inc., B-283137.3 et al., Dec. 30, 1999, 2000 CPD para. 6 at 9, 12.

VA provides with the agency report a memorandum of the evaluation team
leader that, in addition to explaining the contemporaneous evaluation,
suggests that Stronghold's proposal would have been selected over A&D's
proposal, even if the firm's low overall price had been considered. As
indicated above, the record shows that the selection official (who is not
the author of the memorandum) did not consider A&D's low overall price
during the source selection. We give no weight to this part of the
evaluation team leader's memorandum, which at best represents a post hoc
cost/technical tradeoff, since such post-protest judgments prepared in the
heat of the adversarial process may not reflect the fair and considered
judgment of the agency. Boeing Sikorsky Aircraft Support, B-277263.2,
B-277263.3, Sept. 29, 1997, 97-2 CPD para. 91 at 15.

The protest is sustained.

We recommend that the agency perform a cost/technical tradeoff in accordance
with the terms of the RFP. If a firm other than Stronghold is selected for
award, the agency should terminate Stronghold's contract and make award to
that firm. We also recommend that the VA reimburse A&D the reasonable costs
of filing and pursuing the protest. 4 C.F.R. sect. 21.8(d)(1) (2001). A&D's
certified claim for costs, detailing the time spent and costs incurred, must
be submitted to the agency within 60 days of receiving this decision. 4
C.F.R. sect. 21.8(f)(1).

Anthony H. Gamboa

General Counsel

Notes

1. Columbarium niches are recesses designed to contain urns of ashes.

2. The VA appears to suggest (but does not explicitly state) in its report
that the proposal of A&D was not technically acceptable. This suggestion is
belied by the contemporaneous evaluation record that does not report that
A&D's proposal was technically unacceptable, but indicates only that A&D's
proposal was eliminated from the competition because the proposal was viewed
as being not "technically competitive." See Agency Report, Tab J, Memorandum
of Technical Team Leader (July 9, 2001), at 2. Indeed, from our review of
the record, it does not appear that A&D's proposal could be reasonably
viewed as technically unacceptable.