TITLE:  M&S Farms, Inc., B-290599, September 5, 2002
BNUMBER:  B-290599
DATE:  September 5, 2002
**********************************************************************
M&S Farms, Inc., B-290599, September 5, 2002

   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:   M&S Farms, Inc.
    
File:            B-290599
    
Date:              September 5, 2002
    
Richard C. Bradley III, Esq., Daniel, Coker, Horton & Bell, for the
protester.
Bryce C. Ruth, Jr., Esq., for Carr's Wild Horse and Burro Center, an
intervenor.
Jeanne A. Anderson, Esq., and Alton E. Woods, Esq., Department of the
Interior, for the agency.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Agency's source selection decision under a *best value* selection plan is
unreasonable where the evaluation and selection decision contain material
defects under all of the evaluation criteria, including price, such that
the agency has not made a cost/technical tradeoff determination that
reasonably considers the relative merits of the proposals.
DECISION
    
M&S Farms, Inc. protests an award to Carr's Wild Horse and Burro Center
under request for proposals (RFP) No. NAR020009, issued by the Department
of the Interior, Bureau of Land Management (BLM), for a wild horse and
burro adoption/holding facility.  M&S Farms protests the agency's
evaluation of proposals and source selection decision.
    
We sustain the protest.
    
The RFP, issued December 19, 2001, contemplated the award of a fixed unit
price, indefinite-delivery/indefinite-quantity contract for 1 year with 2
option years. 
    
The RFP identified a two-step evaluation process.  The first step was an
*initial review* for the proposal's compliance with the general
requirements of the RFP.  RFP S: M.3.  Specifically, proposals were
required to comply with paragraph C.3 of the RFP's statement of work
(SOW), which stated:
    
a.  The Adoption/Holding facility shall be centrally located within the
Eastern States jurisdiction.  Centrally located is defined as an area
between the two districts (Milwaukee, Wisconsin and Jackson,
Mississippi).  Further, the selected facility site shall in no case be
more than 24 hours drive for a loaded livestock semi-truck from Elm Creek,
NE BLM facility, nor shall the selected facility site be more than 24
hours drive for a loaded livestock semi-truck from either Ocala, FL or
Rutland, VT.
b.  Due to the stress on the animals caused by long distances and
significant climatic changes, all areas outside the area specified in
Section C.3.a. will not be considered for an Adoption/Holding Facility.
RFP S: M.3 stated that proposals for locations *that are not in the
boundaries specified will be rejected and not be subject to further
review.* 
    
Proposals found to be in compliance with this and other terms of the RFP
would proceed to the second step of the evaluation process, a *best value*
evaluation considering the following evaluation factors, listed in
descending order of importance:  (1) past performance, (2) objective
suitability, and (3) price.  The RFP further stated that past performance
was *predominant in importance,* and that the non-price factors *when
combined, or alone, are significantly more important than price.*  RFP
S: M.4.
    
Under the past performance factor, the RFP identified three evaluation
criteria of equal importance:  (A) contracts in the last 3 years similar
in size, content, and complexity to the instant acquisition; (B) cost
overruns or underruns, completion delays, performance problems, and
terminations; and (C) responses on past performance questionnaires (to be
submitted by an offeror's customers).  RFP S: M.5.
    
Under the objective suitability factor, the RFP again stated that
proposals not compliant with the boundaries specified at section C.3 would
not be subject to further review, and then identified five criteria for
evaluating proposals under this factor.  In addition, the RFP stated six
sub‑criteria under the first criterion (animal care, facility, and
equipment at facility) and three sub-criteria under the second (personnel
qualifications).  The RFP stated that these criteria and sub-criteria were
listed in *descending order of importance.*[1]  Id.
    
Under the price factor, the RFP stated that price would not be numerically
weighted or scored, but that the agency would evaluate price for
reasonableness and, as necessary, price realism.  For evaluating price
realism, the RFP stated that the agency would apply proposed unit prices
to an abstract of a hypothetical delivery order to ascertain price realism
between competing offers.[2]  Id.
    
The agency received and evaluated initial proposals, and established a
competitive range that included the proposals of M&S Farms and Carr.  M&S
Farms proposed a facility located near Jackson, Mississippi and Carr (the
incumbent contractor) proposed its facility near Nashville, Tennessee. 
    
The agency conducted discussions with the competitive range offerors. 
Among the discussion items for M&S Farms was a request for more
information about the calculation of drive time to Rutland, Vermont.  The
offeror's initial proposal contained copies of trip directions, compiled
by *AAA Map'n'Go 6.0* software (published by DeLorme), for trips to
Nebraska, Florida and Vermont.  Agency Report, Tab 5, M&S Farms' Initial
Proposal, at 6-8.  These documents stated the trip distance in miles and
the drive time.  The document for the trip to Rutland, Vermont stated a
total distance of 1,387 miles, and a total drive time of 22 hours and
56 minutes.  Id. at 8.  The agency's discussion letter stated that this
*is very close to the limit of 24 hours driving distance* and requested
more details about the basis for this estimate, *i.e. number of breaks and
drivers anticipated.*  Agency Report, Tab 11, Agency's Letter to M&S Farms
(Feb. 14, 2002), at 2.  M&S Farms responded with a copy of an alternate
travel route, generated by *Tripmaker* software (published by Rand McNally
& Co.), using a command to generate the quickest route.  The total
distance for that route was 1,406 miles with a total driving time of 20
hours and 26 minutes.  M&S Farms explained that the drive time was
calculated using the legal speed limit for the roads used, and using two
drivers in accordance with U.S. Department of Transportation
requirements.  The offeror stated that the remaining 3- 1/2 hours could be
used for refueling, eating, and other purposes.  Agency Report, Tab 13,
M&S Farms' Response to Discussion Items (Feb. 26, 2002), at 15-19.  M&S
Farms also responded to all other discussion items.
    
The technical proposal evaluation committee (TPEC) evaluated the responses
of the competitive range offerors and determined that more information was
required from all offerors.  On March 26, 2002, the agency requested final
proposal revisions, which included additional points of discussion for
each offeror.  Included in the request sent to M&S Farms was a statement
that the agency considered the offeror's estimate of drive time to Rutland
to be unrealistic, considering highway construction and traffic delays. 
Agency Report, Tab 18, Agency's Request for Final Proposal Revisions (Mar.
26, 2002), at 1.  M&S Farms again responded to this issue, providing
another alternative route generated by *AAA Map'n'Go 6.0.*  This document
identified the total distance of the trip as 1,408 miles with a total
drive time of 20 hours and 31 minutes.  The offeror also stated that the
route uses the interstate highway system for all but 51 miles and avoids
as many large metropolitan centers as possible.  Agency Report, Tab 20,
M&S Farms' Final Proposal Revisions, at 10-12. 
    
The final evaluated scores under the objective suitability factor were
[DELETED] points for M&S Farms' proposal and [DELETED] points for Carr's. 
The difference in scores was due entirely to slightly lower ratings for
M&S Farms' proposal under two sub-criteria--a [DELETED]-point deduction
under the fourth sub-criterion of the first criterion due to questions
about the drive-time to Rutland,[3] and a [DELETED]-point deduction under
the third sub‑criterion of the second criterion due to the proposal
not describing the specific duties that are to be performed by specific
staff members.[4]  Contrary to the terms of the RFP, the scoring of
proposals was based on all criteria under this factor receiving equal
weight and the sub-criteria under each applicable criterion receiving
equal weight.  Agency Report, Tabs 16 and 17, Final Evaluation Rating
Sheets; Tab 22, Contracting Officer's Memo to File. 
    
With regard to the past performance factor, there is little evidence of
the evaluation.  The report of the TPEC initial consensus evaluation
contains a summary statement that a review of all past performance
information was made with all offers receiving a *satisfactory* rating and
that *[n]o one firm was more impressive than the others.*  Agency Report,
Tab 9, Initial TPEC Report, at 1.  Subsequently, without further
explanation, the competitive range determination made by the contracting
officer, who also served as the source selection authority (SSA), stated
that, though all offerors were found to have had satisfactory past
performance, Carr's proposal was *rated slightly higher due to the number
of* questionnaires received from references.  Agency Report, Tab 10,
Competitive Range Memo, at 13.  The SSA's selection decision stated with
regard to past performance that all offerors had *impressive* credentials
*with Carr's and [another offeror's proposals] being rated slightly higher
than M&S in this category.*  Agency Report, Tab 24, Source Selection
Statement, at 2.  The record contains, and the agency states that there
is, no other documentation of the evaluation under the past performance
factor.  Agency Supplemental Submission (July 30, 2002).
    
Under the price factor, the agency calculated total prices and determined
that Carr proposed the lowest price of $[DELETED], followed by M&S Farms'
price of $[DELETED].  Agency Report, Tab 23, Price Negotiation Memo, at
6.  The SSA determined that Carr's was the highest-rated and lowest-priced
proposal, and selected it for award.  Agency Report, Tab 24, First Source
Selection Statement, (Apr. 9, 2002), at 2.  On April 24, the agency
awarded a contract to Carr.
    
After receiving notice of the award, M&S Farms timely requested a
debriefing. 
The agency could not conduct a debriefing *for some time,* and provided
M&S Farms some pricing information in the interim.  Agency Report at 2. 
On May 10, M&S Farms filed an agency-level protest alleging that the
agency price evaluation contained mathematical errors and that M&S Farms
had submitted the lowest price.
    
On May 15, the SSA issued an amended source selection decision.  The SSA
acknowledged error in the price evaluation and that M&S Farms had actually
proposed the lowest price.  The SSA then stated that Carr's proposal
nevertheless represented the best value.  Under the past performance
factor, the SSA again noted that the agency received more references for
Carr than for M&S Farms, and added that the responses for Carr *were
slightly more positive than those of M&S.*  Agency Report, Tab 30, Source
Selection Statement Addendum, at 1.  Under the objective suitability
factor, the SSA stated that Carr's proposal was rated higher under two
sub-criteria, and that M&S Farms' proposal *was not as technically sound
as* Carr's, specifically because M&S Farms had not adequately established
that its
proposed facility was within a 24-hour drive of Rutland.  The SSA then
cited trip‑mapping tools other than those relied upon by M&S Farms
that estimated the drive time to be greater than 24 hours, and that:
    
[n]either M&S nor the Government's estimate for driving time takes into
account that the horses would need to be rested for an hour or so at a
time for 4 or more times in a 24-hour period so that they could rest their
muscles during the drive.  Another intangible is the fact that during the
summer many of the Interstates across the country routinely undergo road
construction, which would significantly increase the amount of time
required to get from Mississippi to Vermont.
Id. at 2.  Under price, the SSA considered additional costs to the agency
for shipping animals from either M&S Farms' or Carr's facility to various
individual adoption sites, and determined that the additional costs were
lower using Carr's facility by $[DELETED] per year.  Although the amended
source selection decision did not state the actual proposed prices of Carr
and M&S Farms,[5] the agency determined that, considering these additional
shipping costs, Carr's proposal continued to represent the lowest price to
the government.  The SSA stated that, upon this more detailed review of
*all technical, price and other factors . . . this office still recommends
Carr's for award.*  Id. at 2-3.
    
On May 23, the agency conducted the debriefing for M&S Farms.  This
protest followed.  M&S Farms alleges that the agency's evaluation and
source selection decision, even as corrected, are unreasonable and
inconsistent with the evaluation criteria stated in the RFP.
    
In reviewing a protest of an agency's evaluation and source selection
decision, we will not re-evaluate proposals, but will review the record to
determine whether the evaluation and selection decision are reasonable and
consistent with the stated evaluation criteria, and with applicable
procurement laws and regulations.  Gemmo Impianti SpA, B-290427, Aug. 9,
2002, 2002 CPD P: ___ at 3; Duncan Sec. Consultants, Inc., B-290574, Aug.
8, 2002, 2002 CPD P: ___ at 3.  Our review shows that the agency's
evaluation and source selection decision were materially defective under
each evaluation factor.
    
First, it is unreasonable for the agency to now suggest, as it does, that
M&S Farms' proposal was unacceptable under the objective suitability
factor on the basis of the length of the drive between the offeror's
proposed facility and Rutland.  On three separate occasions during the
competition, M&S Farms submitted evidence from published travel sources
showing that the location of its proposed facility was within a 24-hour
drive of Rutland.  The agency did not reject the proposal as unacceptable
under the requirement, and, consistent with that, the record shows that
the proposal does satisfy the requirement.[6]
    
Furthermore, while the agency deducted points for M&S Farms' alleged
failure to demonstrate its compliance with this requirement, the RFP did
not provide for evaluating this aspect of the proposals beyond a
*go/no-go* determination under the first step of the evaluation process. 
Not only did the SOW and the stated evaluation plan expressly provide for
evaluating this aspect prior to proceeding to the technical evaluation
under the objective suitability factor, the proposal preparation
instructions stated that this information was to be provided in volume I
of proposals, *Offer and Other Documents,* and not in volume III,
*Objective Suitability.*  RFP S: L.18(b)(3).  Although the sub-criteria
under which the agency downgraded the protester's proposal for driving
time to Rutland might, at a glance, suggest that the agency could evaluate
driving times on a relative basis, such a conclusion would be
unwarranted.  The RFP stated this sub-criterion, the fourth sub-criterion
under the first criterion of the objective suitability factor, as follows:
    
[Criterion] (1)  Animal Care, Facility, and Equipment at the Facility: 
Adequacy of the offeror's discussion on the current capability,
understanding, and ability to document Animal Care, Facility, and
Equipment at the Facility:
.     .     .     .     .
[Sub-criterion] d)  Describe the geographic location of the proposed
facility.  Diagram and relate distances and accessibility to the major
highways and the closest interstate system.  Describe the facility access
(ie. width, type of surface, etc.) and type of road maintenance.
RFP S: M.5.  Based on the information requested, it is apparent that the
sub-criterion addresses only local geography concerning location of nearby
highways, and the capacity and condition of routes leading to them.  The
RFP in no way indicated that the relative drive time to Rutland or to any
other long-distance destination would be evaluated.  Nor did the agency
otherwise attempt to do so, as no proposal was evaluated as having a
strength for drive times significantly less than 24 hours for any of the
three specified destinations.  On this record, the agency had no
reasonable basis under the RFP to downgrade the protester's proposal based
on the driving time to Rutland.
    
There is another defect in the agency's evaluation under the objective
suitability factor.  The RFP stated that the evaluation under this factor
would be under a descending-order-of-importance weighting scheme for both
criteria and sub-criteria.  The agency's evaluation erroneously applied
equal weight to all criteria and sub‑criteria in awarding Carr's
proposal [DELETED] points and M&S Farms' proposal [DELETED] points. 
During the course of this protest, the agency acknowledged this defect and
re-scored the proposals applying the following weights to the criteria:
    
Criterion 1      ---         120 points
Criterion 2      ---           90 points
Criterion 3      ---           80 points
Criterion 4      ---           60 points
Criterion 5      ---           50 points
    
The new technical scores resulted in Carr's proposal still receiving a
higher point score with [DELETED] points as compared to M&S Farms'
proposal with [DELETED] points.  Agency Report at 14-15.  However, the
re-scoring applied equal weight to the sub-criteria under each criterion
that had them.  This re-scoring thus fails to accord sub-criteria
descending weights consistent with the evaluation scheme stated in the
RFP.  Since the sub‑criteria under which the protester's proposal
was scored lower than the awardee's were all at or near the bottom of the
lists of sub-criteria, and thus should be accorded less weight than any of
the evaluation schemes applied by the agency to date, the difference in
overall technical scores (prior to any correction of other defects
identified in this decision) should be less than calculated by the
agency.[7]
    
The protester also alleges that discussions related to the agency's
evaluation under the third sub-criterion of the second criterion of the
objective suitability factor were unequal and resulted in the awardee
receiving an unfair advantage in the agency's evaluation.  We agree.
    
In negotiated procurements, contracting agencies generally must conduct
discussion with all offerors whose proposals are within the competitive
range.  41 U.S.C. S: 253b(d)(1)(A) (2000); Federal Acquisition Regulation
(FAR) S: 15.306(d)(1).  Where discussions are held they must be
meaningful, that is, sufficient information must be furnished to offerors
in the competitive range as to the areas in which their proposals are
believed to be weak so that offerors have a reasonable opportunity to
address those areas of weakness that could have a competitive impact. 
DevTech Sys., Inc., B-284879, B-284879.2, June 16, 2000, 2000 CPD P: 200
at 5.  An agency has not satisfied its obligation to conduct meaningful
discussion if it misleads an offeror or conducts prejudicially unequal
discussions.  National Med. Staffing, Inc., B‑259402, B-259402.2,
Mar. 24, 1995, 95‑1 CPD P: 163 at 3-4.
    
The RFP stated the following with regard to this sub-criterion:
    
[Criterion] (2)  Adequacy of the offerors discussion on the qualifications
of both the firm's corporate officials and the individuals who will be
working on this contract . . .
[Sub-criterion] c)  State the names (if available) of each individual who
will be involved and what each will do and provide a resume [c]iting as a
minimum:  The background and experience of each individual in handling
livestock particularly ungentled or wild and unbroken horses, previous
employers, length of tenure, and references.
RFP S: M.5 (emphasis added).  The agency's initial evaluation under this
sub-criterion downgraded M&S Farms' proposal for not identifying what each
individual would do, and downgraded Carr's proposal to the same degree
because its resumes did not list references.  Agency Report, Tab 7,
Initial Rating Sheets for M&S Farms' Proposal, at 51, 109; Tab 8, Initial
Rating Sheets for Carr's Proposal, at 22, 51.  Discussions with M&S Farms
did not include a question regarding this sub-criterion, or otherwise
identify the concern for which M&S Farms' proposal was downgraded,[8]
Agency Report, Tab 11, Discussions with M&S Farms, but discussions with
Carr did include a question that disclosed the agency's concern under this
sub-criterion.  Agency Report, Tab 12, Discussions with Carr (Feb. 14,
2002), at 2.  Carr then provided the requested references and the agency
increased Carr's score to the maximum points available under the
sub-criterion, which accounts for the majority of the difference in
technical scores between these proposals.  Agency Report, Tab 14, Carr's
Response to Discussions, at 34; Tab 17, Revised Rating Sheets for Carr's
Proposal, at 3.  The agency thus treated the offerors unequally on this
point, with the awardee receiving a prejudicial competitive advantage as a
result.
    
Another example of unreasonable evaluation is apparent in the agency's
evaluation under the past performance factor.  Prior to the competitive
range determination and source selection decisions, the only mention of
the past performance evaluation was in the initial TPEC report, which
rated all proposals satisfactory; the TPEC report did not describe the
evaluation that was performed under any of the three criteria for this
factor stated in the RFP, although it states that no offeror was more
impressive than the others.  Agency Report, Tab 9, Initial TPEC Report, at
1.  Neither the competitive range determination nor the selection
decisions stated that the SSA had re-evaluated past performance, yet the
SSA stated that all proposals were *impressive* and that Carr's proposal
was slightly higher rated than that of M&S Farms.  The SSA also stated
that Carr's proposal was higher rated than M&S Farms' due to more
questionnaire responses and to slightly more positive responses on those
questionnaires.[9]  Agency Report, Tab 10, Competitive Range Memo, at 13;
Tab 30, Source Selection Statement Addendum, at 1. 
    
As indicated above, the evaluation documentation regarding past
performance is sparse and conclusory.  Where an agency fails to document
or retain evaluation materials, it bears the risk that there will be
inadequate supporting rationale in the record for the evaluation and
source selection decision and that we will not conclude that the agency
had a reasonable basis for the decision.  Kathpal Techs., Inc.; Computer &
Hi-Tech Mgmt., Inc., B-283137.3 et al., Dec. 30, 1999, 2000 CPD P: 6 at
12.  In addition to the lack of documentation supporting the past
performance evaluation, the SSA's stated conclusions in the evaluation
documentation in this area were unreasonable or unsupported by the record.
    
First of all, basing the evaluation on the raw number of questionnaires
received  appears to be a tenuous basis for rating the relative quality of
an offeror's past performance.  This is particularly so here because all
of the questionnaires received for Carr were from personnel under the same
contract, some of who may lack knowledge of the contractor's performance
sufficient to provide a meaningful evaluation.  Indeed, one of the
awardee's references, who, in declining to respond to a question asking if
she would recommend the contractor for another award, stated that she had
only limited experience with the contractor.[10]  Agency Report, Tab 6,
Carr's Proposal, Questionnaires.
    
Furthermore, and perhaps more significantly, the SSA's determination that
the responses for Carr *were slightly more positive than* for M&S Farms is
also not supported by the record.  Indeed, three of the questionnaires
rated the awardee [DELETED].  Agency Report, Tab 6, Carr's Proposal,
Questionnaires.  In contrast, one of these respondents, [DELETED], also
submitted a questionnaire for M&S Farms, where [DELETED] rated M&S Farms
[DELETED].  Agency Report, Tab 5, M&S Farms' Proposal, Questionnaires. 
    
In sum, this record provides no reasonable basis to rate Carr slightly
higher than M&S Farms under the questionnaire criterion of, or overall
under, the past performance factor.
    
Finally, the agency's price evaluation was also materially defective for
two reasons (even after the agency corrected its mistaken calculation of
prices and rightly recognized M&S Farms' proposal as offering the lowest
price). 
    
First, as noted by the protester, the agency, in the revised source
selection statement determined that the cost of Carr's proposal was
actually lower than M&S Farms' lower-priced proposal by adding to the
offerors' proposed prices the estimated costs of shipping animals between
the proposed facilities and individual adoption sites (including return
shipping costs for unadopted animals).  Agency Report at 19-20; Tab 30,
Source Selection Statement Addendum, at 2‑3.  However, the
contracting officer admits that the RFP does not contain a requirement for
delivery of animals to any site.  Contracting Officer's Statement at 11. 
Moreover, the RFP does not indicate in any way that the cost of such
deliveries would be considered in the price evaluation, or otherwise
indicate that price would be evaluated based on location of a proposed
facility.[11]  It is improper for an agency to evaluate price based on an
evaluation scheme not set forth in the RFP.  See P.G. Elecs., Ltd.,
B-261883, Nov. 1, 1995, 95-2 CPD P: 202 at 5; Department of the Air Force
et al., B 253278.3 et al., Apr. 7, 1994, 94-1 CPD P: 247 at 13;
Environmental Techs. Group, Inc., B‑235623, Aug. 31, 1989, 89-2 CPD
P: 202 at 4.
    
The agency states that it considered these transportation costs as part of
its price realism analysis.  Even though price realism is not ordinarily
considered in the context of a competition for a fixed-price contract, a
solicitation properly may (and did here) provide for the agency to
consider price realism.  See Star Mountain, Inc., B‑285883, Oct. 25,
2000, 2000 CPD P: 189 at 4.  The nature and extent of a price analysis are
matters within the agency's sound exercise of discretion; in appropriate
circumstances, a price analysis may include a reasonable review of an
offeror's cost and pricing data or risks of additional costs to the
government unique to a given proposal.  See Cardinal Scientific, Inc.,
B-270309, Feb. 12, 1996, 96-1 CPD P: 70 at 4-5 (consideration of cost and
pricing data); Allied-Signal Aerospace Co., B-250822, B‑250822.2,
Feb. 19, 1993, 93-1 CPD P: 201 at 10-14 (consideration of risk of
increased costs unique to a proposed approach).  Here, however, the agency
did neither a price nor a cost realism analysis, but only added to the
proposal prices the cost of services not within the scope of the RFP and
not implicated by either offeror's proposal.  This improper action has
nothing to do with price realism, and the term *price realism* cannot
properly be used as a talisman to defend it.
    
Also, as pointed out by the protester, the agency failed to consider costs
to government for line items for which the offerors actually proposed unit
prices in their proposals.  Specifically, the price schedule at line item
0001H (and corresponding line items for the option years) required
offerors to propose a unit price per day for providing additional labor at
adoption events.[12]  Although the RFP price schedule only provided space
to insert a proposed unit price on the item said to be supplied on an *as
required* basis, and did not state an estimated quantity or provide a
space for total proposed price per contract year for that line item, the
RFP nevertheless elsewhere identified the level of work that the agency
anticipated--the SOW stated that approximately one adoption event would be
held each month, and that each event would require the contractor to keep
its facility open to the public and provide full staffing necessary to
facilitate the adoption event for 9 hours a day for 3 consecutive
days.[13]  RFP S: C.8(a), (c).  The total prices evaluated by the agency,
which the SSA relied upon in the source selection decision, did not
include proposed prices for this item.  However, since an estimate of this
item was identified in the SOW, there is a reasonable basis to determine
the associated total cost that the agency will incur under each proposal
for this item.  Thus, we think the terms of the RFP entitled the offerors
to assume that the proposed prices for providing labor at adoption events
would be considered in determining total evaluated price.  See Aurora
Assocs., Inc., B-215565, Apr. 26, 1985, 85-1 CPD P: 470 at 3.
    
The agency's evaluation of additional costs not identified in the stated
evaluation scheme and the failure to consider all proposed prices were
prejudicial to the protester.  In fact, as is apparent in the SSA's
revised selection decision, the effect of the agency (improperly)
considering additional shipping costs and failing to consider the price
for line item 0001H, was to make M&S Farms' proposal price appear higher
than that of Carr's.  Agency Report, Tab 30, Source Selection Statement
Addendum, at 3. 
    
Because of the material evaluation defects discussed above, the agency has
not performed a proper cost/technical tradeoff based on a reasonable
evaluation consistent with the terms of the RFP and the actual cost to the
government of the proposals.  We recommend that the agency review its
actual needs and amend the solicitation as appropriate, reopen
discussions, request and evaluate revised proposals, and make a new source
selection decision consistent with the terms of the RFP and this
decision.  If an offeror other than Carr is selected for award, the agency
should terminate the contract previously awarded to that firm.  We also
recommend that the agency reimburse the protester its cost of pursuing
this protest, including reasonable attorney's fees.  4 C.F.R. S: 21.8(d)
(2002).  The protester should
    
    
    
submit its certified claim for costs, detailing the time expended and the
costs incurred, directly to the contracting agency within 60 days of
receipt of this decision.  4 C.F.R. S: 21.6(f)(1).
    
The protest is sustained.
    
Anthony H. Gamboa
General Counsel
    

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

   [1] The RFP also stated that the evaluation under the objective
suitability factor would be point scored and erroneously stated that the
points associated with each criterion or sub-criterion were listed in the
RFP; no points were listed for any criterion or sub‑criterion.
[2] The agency developed no such hypothetical delivery orders to evaluate
price realism.
[3] An undated memo to the file from the contracting officer states that
the technical evaluation score for M&S Farms' proposal did not change as a
result of the discussions.  Agency Report, Tab 22, Contracting Officer's
Memo to File.
[4] The only comments in the evaluation document that provide any
explanation for the lowered score under the third sub-criterion of the
second criterion were in the TPEC's initial evaluation worksheets.  One
evaluator stated that a discussion question should be asked of M&S Farms
regarding *who will do what,* and another evaluator stated a single
weakness:  *A little unclear as to exact responsibilities of personnel.* 
Agency Report, Tab 7, Initial Evaluation of M&S Farms' Proposal, at 51,
109.
[5] Spreadsheets (which the agency states were prepared June 4 (after the
protest was filed)) identify the proposed prices as $[DELETED] for Carr
and $[DELETED] for M&S Farms, exclusive of proposed unit prices for
contract line items for which no estimated quantities were stated on the
price schedule; the total prices inclusive of all line items for which
proposed unit prices were required were identified as $[DELETED] for Carr
and $[DELETED] for M&S Farms.  Agency Report, Tab 39, Price Abstract; Tab
41, Price Abstract With All Costs.
[6] Although the agency provided information from published travel sources
showing that the drive from Jackson to Rutland was longer that 24 hours,
this information was generated after the initial award decision, and the
agency never used it to determine that M&S Farms' proposal was technically
unacceptable.  Agency Report, Tabs 42, 43, 44, 45, 46 (Travel Route
Descriptions).  Even so, one of the agency's sources calculated that the
drive time was less than 24 hours.  Agency Report, Tab 46, Rand McNally
Travel Route Description.  We note that the RFP does not identify, as
either a requirement or preference, any source or method for determining
driving time.  Nor does the agency show that any of the sources submitted
by M&S Farms was unacceptable under the RFP.  Also, while the agency
references other considerations, such as unknown delays due to traffic
congestion, road construction and refueling, it has not attempted to
quantify the effect of these considerations on drive time.  The record
does not otherwise show a basis for applying such considerations to all
proposals, nor did the agency attempt to do so.  Moreover, while the SSA's
amended selection decision states that M&S Farms' calculation of driving
time to Rutland does not consider four separate hour-long stops for
resting the horses, the agency has since stated that this was only the
topic of a recent symposium, was not a requirement, and was not an
appropriate consideration in the calculation of driving time.  Contracting
Officer's Statement at 12.   The agency's difficulty in establishing
driving time suggests that the requirement, as stated in the RFP, is not
clear enough for the purpose of meeting the agency's actual minimum needs
and for providing offerors with a common basis for preparing proposals. 
Indeed, M&S Farms states that if it had been adequately advised of a more
restrictive requirement than that stated in the RFP, it could have located
its facility nearer to Rutland.  Protester's Comments at 7.
[7] This scoring scheme is also suspect because it was devised only after
the protest was filed, and it works to disproportionately increase the
score advantage of the awardee's proposal under the first criterion (even
though, as discussed above, this advantage was not supported by the
record).  See Boeing Sikorsky Aircraft Support, B-277263.2, B-277263.3,
Sept. 29, 1997, 97-2 CPD P: 91 at 15 (reevaluation in the heat of an
adversarial process may not represent the fair and considered judgment of
the agency, and it is inappropriate to accord it any significant weight).
[8] Under the second sub-criterion, which dealt with identifying who would
handle and feed the horses, the agency also downgraded M&S Farms' proposal
and the agency did ask M&S Farms a corresponding discussion question. 
Agency Report, Tab 11, Discussions with M&S Farms (Feb. 14, 2002), at 2. 
M&S Farms responded to this question, and the agency increased its score
under that sub-criterion to the maximum points available.  Agency Report,
Tab 13, M&S Farms' Response to Discussions, at 5; Tab 16, Revised Rating
Sheets for M&S Farms' Proposal, at 3.
[9] We note that this distinction only relates to one of three equally
important past performance criteria; there is no discussion of the other
two criteria in the record.
[10] This respondent indicated that her relationship and time involved
with the contractor concerned satellite adoptions for approximately 1
year.  Although the agency's defense of the past performance evaluation
during this protest stated, as an apparent basis for giving responses for
Carr more weight, that all of the questionnaires for the awardee were
based on relationships with that contractor of 3 or more years,
Contracting Officer's Statement at 8, the record shows that this is not
correct for two of Carr's respondents.  We also note that a third
respondent indicated that her experience with the contractor was for 3
years, but stated under a question regarding her working relationship with
the contractor that she had *sporadic contact* with the contractor, and on
another question she stated that she was *only on site 6 weekends per
year.*  Agency Report, Tab 6, Carr's Proposal, Questionnaires.
[11] The protester states that, prior to preparing a proposal, it asked
the agency if there was any preference for location of a facility, as the
protester was prepared to relocate if there was.  The agency informed M&S
Farms that, other than satisfying the RFP's requirement for being
centrally located, there was no preference based on location of a proposed
facility.  Protest at 4.
[12] M&S Farms proposed a lower price than Carr for this line item.
[13] An explanation in the RFP for line item 0001H stated that prices were
to cover all work *with the full intent of the specifications relating to
the holding of adoption events for the time period specified,* and that it
was the offeror's responsibility to review the specifications.  RFP at
B-2.