TITLE: Duncan Security Consultants, Inc.
BNUMBER: B-290574
DATE: August 8, 2002
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Duncan Security Consultants, Inc. , B-290574, August 8, 2002
Decision
Matter of: Duncan Security Consultants, Inc.
File: B-290574
Date: August 8, 2002
Nancy O. Dix, Esq., and Leonard L. Anthony, Esq,. Gray Cary Ware &
Freidenrich, for the protester.
Mary E. Clarke, Esq., Defense Logistics Agency, for the agency.
Jacqueline Maeder, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency reasonably selected low-priced, technically acceptable
proposal--without considering relative technical merits of proposals--where,
although solicitation included standard evaluation provision stating that
award would be based on offer "most advantageous to the government, price
and other factors considered," it did not include technical evaluation
factors, but instead stated that award would be based upon a proposal
meeting all terms and conditions of the solicitation.
DECISION
Duncan Security Consultants, Inc. protests the award of a contract to Nu-Way
Security and Private Investigations under request for proposals (RFP) No.
MDA113-02-R-0006, issued by the Defense Logistics Agency (DLA), Television
Audio Support Activity for security and armed guard services. Duncan
principally argues that the agency improperly made award on the basis of low
price rather than a comparative evaluation of the proposals.
We deny the protest.
The RFP, issued March 6, 2002 as a competitive section 8(a) set aside,
contemplated the award of a fixed-price contract for a base year, with 4
option years. The RFP included Federal Acquisition Regulation (FAR) �
52.212-2, Evaluation--Commercial Items, which provides for award to the
responsible offeror whose offer conforming to the solicitation will be most
advantageous to the government, price and other factors considered. At the
end of the provision is the statement "[t]he following factors will be used
to evaluate offers[.]" RFP at 13. However, instead of evaluation factors,
the RFP then set forth the following language:
Award will be based upon a proposal that [meets] all the terms
and conditions of the solicitation, together with a
determination
by the Contracting Officer that the price is considered fair and
reasonable and that the offeror is responsible within the meaning
of governing regulations.
DLA received three offers by the amended April 17 closing date. Agency
Report (AR) at 4-5. DLA found all three offers to be technically
acceptable, AR at 5, and
Nu-Way's price was low at $3,450,356.20, while Duncan's was second-low at
$3,875,988.12. AR, Tab T, Price Negotiation Memorandum, at 2. After
finding that Nu-Way was responsible, DLA made award to that firm.
Duncan asserts that the RFP required the agency to make award to the offeror
whose proposal represented the "best value" to the government, and that ,
instead of conducting a comparative assessment of the relative strengths and
weaknesses of the proposals, DLA improperly awarded the contract based only
on Nu-Way's "apparent low price, technically-acceptable offer." Protester's
Comments at 3, 5.
This argument is without merit. While the RFP included standard "best
value" evaluation language providing for award based on the "most
advantageous" proposal, it did not go on to establish any evaluation factors
or a scheme for conducting a comparative evaluation. To the contrary, in
lieu of evaluation factors, the RFP stated only that proposals had to
"[meet] all the terms and conditions of the solicitation," that the offeror
had to be responsible, and that the price had to be considered fair and
reasonable. Consistent with these limited evaluation considerations, the
RFP required offerors to provide only a "technical description of the items
being offered in sufficient detail to evaluate compliance with the
requirements in the solicitation." RFP at 10. Reading these provisions
together, there was no basis for the agency to conduct a comparative
evaluation; rather, notwithstanding inclusion of the standard "best value"
evaluation language, it was sufficiently clear from the RFP that the award
was to be made to the low-priced offeror that demonstrated compliance with
the RFP requirements, i.e., acceptability.[1] See Vistron, Inc., B-277497,
Oct. 17, 1997, 97-2 CPD � 107 at 4. Award to Nu-Way on this basis therefore
was consistent with the RFP.
Duncan challenges the evaluation of Nu-Way's proposal as acceptable, arguing
that it did not address the requirement that employees be able to obtain and
maintain secret clearances, or explain its procedures for protecting
classified materials. Protester's Comments at 6. In this regard, Nu-Way's
proposal specified minimum personnel qualification standards, and stated
that it would "take care during the interview, screening, and hiring process
to ensure that all contemplated-for-hire security personnel meet the minimum
qualifications of our client's contract prior to hire commitment," NU-Way
Proposal at 26, but did not otherwise explain how it would comply with the
provisions cited by Duncan.
In reviewing an agency's technical evaluation, we will not reevaluate the
proposal, but will examine the record of the evaluation to ensure that it
was reasonable and in accordance with the evaluation criteria, and
consistent with procurement laws and regulations. Oceaneering Int'l, Inc.,
B-278126, B-278126.2, Dec. 31, 1997, 98-1 CPD
� 133 at 6.
The evaluation here was unobjectionable. The RFP did not call for detailed
technical proposals and, more specifically, did not require offerors to
submit a detailed explanation of the manner in which they intended to obtain
clearances, protect classified materials, or perform other aspects of the
RFP's Performance Work Statement (PWS), which set forth the contract
requirements. While the "technical description" provision noted above
imposed some burden on offerors to set forth details of their approach to
performing the contract, neither this language, nor anything else in the
RFP, indicated that a paragraph-by-paragraph, detailed explanation of
precisely how the offeror planned to accomplish every requirement under the
PWS was necessary for an offer to be found acceptable. The absence of
evaluation factors or any definition of what would be deemed an acceptable
"technical description" reinforces the view that such comprehensive
descriptive material was not contemplated. This being the case, we find
that the agency reasonably determined that Nu-Way's proposals was
acceptable, despite its failure to explain how it intended to perform in the
areas in question.
Duncan challenges the agency's evaluation of Nu-Way's price as reasonable,
arguing that Nu-Way failed to escalate its prices for the option years and
that the awardee's total price is more than $800,000 below the government
estimate. Protester's Comments at 6-7. This argument is based on a
misunderstanding of the concept of price reasonableness. The purpose of a
price reasonableness review is to determine whether the prices offered are
higher--as opposed to lower--than warranted. WorldTravelService,
B-284155.3, Mar. 26, 2001, 2001 CPD � 68 at 4 n.2. Since Duncan asserts
that Nu-Way's prices are too low, not too high, there is no reason to
question Nu-Way's prices on the basis of price reasonableness.
Duncan seems to be arguing that Nu-Way's price is unrealistically low. This
argument is without merit. Where, as here, an RFP contemplates the award of
a fixed-price contract, the agency is not required to conduct a realism
analysis, because a fixed-price (as opposed to a cost-type) contract places
the risk and responsibility for loss on the contractor. WorldTravelService,
supra, at 3. An agency may provide for a price realism analysis for the
limited purpose of measuring offerors' understanding of the requirements or
to assess the risk inherent in an offeror's proposal, id., but there is no
requirement that it do so. Here, the RFP did not provide that the agency
would conduct a realism analysis, or otherwise assess technical
understanding with reference to the offered prices. Consequently, since the
agency determined that Nu-Way is responsible and, thus, that it can perform
at its offered price, Nu-Way's low price does not provide a basis for
questioning the award.[2] M-Cubed Info. Sys., Inc., B-284445, B-284445.2,
Apr. 19, 2000, 2000 CPD � 74 at 9.
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] To the extent that Duncan argues that the evaluation scheme outlined in
the solicitation is ambiguous, any ambiguity was obvious, and the protest is
untimely. Protests based upon alleged solicitation improprieties must be
filed prior to the time set for receipt of initial proposals. 4 C.F.R. �
21.2(a)(1) (2002).
[2] Duncan complains that the agency failed to notify the Small Business
Administration of the award to Nu-Way. Such a failure is a procedural
deficiency and does not prejudice the protester or affect the validity of an
otherwise properly awarded contract. See Telos Corp., B-279493.3, July 27,
1998, 98-2 CPD � 30 at 11 n.8