TITLE:  Maryland Office Relocators, B-291092, November 12, 2002
BNUMBER:  B-291092
DATE:  November 12, 2002
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Maryland Office Relocators, B-291092, November 12, 2002

   Decision
    
    
Matter of:   Maryland Office Relocators
    
File:            B-291092
    
Date:              November 12, 2002
    
D. Cameron Amick for the protester.
Alex Tang, Esq., and Christian S. White, Esq., Federal Trade Commission,
for the agency.
David A. Ashen, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Where solicitation required that an offeror's fixed price for basic moving
services include the cost of all required packing materials, but also
specifically required the offeror to specify how many crates were included
in its fixed price and the cost of additional crates, agency reasonably
adjusted protester's evaluated price upward to reflect its finding that
protester's proposal did not include a sufficient number of crates to
perform the work.
DECISION
    
Maryland Office Relocators (MOR) protests the Federal Trade Commission's
(FTC) award of a contract to Office Movers, Inc. (OMI) under solicitation
No. 29‑2‑Q‑0022, for moving services.  MOR challenges
the evaluation of proposals. [1]
    
We deny the protest.
    
The solicitation provided for award of a contract for transportation and
related moving services to relocate several FTC bureaus and offices,
including a total of approximately 513 employees, from two Washington,
D.C. locations to a third over five phases (essentially five weekends). 
Offerors were required to furnish *a firm fixed price for the
transportation and related move services by move phase for the relocation
of office contents, furniture, equipment, libraries, files, supplies and
common areas.  The price should include cost and volume of all required
packing materials.*  Solicitation at 17.
    
The solicitation advised that *[t]he FTC has determined that a majority of
plastic packing crates will be utilized for this move. . . .  In addition,
a supplement of standard cardboard cartons will also be supplied by the
moving contractor for a small amount of items that must remain packed
beyond the crate rental period.*  Solicitation at 6.  (This reference to a
rental period apparently referred to a separate requirement that the
crates be available no later than 2 weeks prior to the move and for at
least 1 week after the move phase, that is, for approximately 3 weeks.) 
Responding to a preproposal question as to how many crates were requested
per phase and what percentage of containers should be crates versus
cartons, FTC responded in writing that *[w]e have requested that the
movers submit their estimate for packing crates and/or boxes as part of
the RFP.*  Amend. 0002, Question 5.  In a sworn declaration, the FTC
facilities management specialist who coordinated the evaluation of
proposals states that he advised vendors at the pre-bid conference that
*only a handful of the hundreds of FTC employees who were relocating would
be using cardboard boxes.*  FTC Facilities Management Specialist
Declaration at 2. 
    
Offerors were required to specify in the pricing schedule the *[n]umber of
packing crates included in the above price* for the base moving services,
Solicitation at 17; offerors were required to include in their technical
proposals the *[n]umber of cartons or crates included in 'Base Moving
Services,'* id. at 14; and the additional/optional pricing section of the
schedule included the requirement to provide a *[p]rice per additional
crates.*  Id. at 4, 18.  The solicitation elsewhere emphasized that *[t]he
move contractor will provide all crates, cartons, tape, bubble wrap and
other packing materials required for the move.  All quotations should
include the cost and quantity of crates, which are to be furnished by the
Move Contractor.*  Id. at 6. 
    
In order to establish their *qualifications,* offerors were required to
include in their proposals a detailed description of their approach and
qualifications, including resumes of the project manager and assistant
project managers, references for prior moves, a discussion of the physical
approach to moving, a detailed time schedule, a *[d]etailed breakdown of
the number and deployment of supervisors, movers, packers, drivers, and
additional staff,* contingency plans, and a list of required equipment (as
well as hourly rates for extra labor and equipment).  Solicitation
at 13‑14.  Proposals were to be evaluated
    
in terms of Offerors understanding of the desired services, appropriate
methodology, qualifications, and experience with similar projects, cost
proposal and any other factors within the sole discretion of the FTC. 
Cost will be a significant, but not necessarily the only, determining
factor in the decision.  The FTC is not obligated to award a contract
based on the lowest cost proposed.
Solicitation at 15.
    
OMI and MOR submitted proposals.  Although FTC found both to be
acceptable, it determined that OMI's indicated a better understanding of
the scope of work and better experience, while MOR's contained a number of
weaknesses with respect to technical approach, capability, experience, and
resumes.  As a result, OMI's proposal received a significantly higher
technical score (96 of 100 available points) than MOR's (83 points).  Best
Value Memorandum at 1-2; COS at 4-5; FTC Facilities Management Specialist
Declaration at 2-4.  In addition, OMI's evaluated price ($270,420 for base
and option items) was lower than MOR's ($280,411). 
    
In this regard, MOR's evaluated price reflected an upward adjustment of
$25,350 to its proposed price to reflect FTCs determination that MOR's
proposal did not provide a sufficient number of crates to perform the
work.  In this regard, while FTC estimated that the move would require
between 9,480 and 11,376 plastic crates, and OMI proposed 10,070 crates,
MOR's proposal specified only an *[e]stimated number* of *1,000 crates per
move*‑‑calculated by the agency as 5,000 total crates
(1,000 crates for each of the 5 moves)‑‑and 3,780 totes (that
is, cardboard boxes).  MOR Proposal at 20, 23.  FTC therefore added to
MOR's price the cost of an additional 5,070 crates‑‑that is,
the difference between the 5,000 crates MOR proposed and the 10,070 crates
OMI proposed‑‑calculated at $5.00 per crate, which was MOR's
proposed weekly rate.  FTC did not credit MOR with the proposed cardboard
boxes on the basis that the agency wanted the work performed primarily
with crates and had advised offerors that boxes were to be only a
supplement for a small quantity of items.  (According to the agency,
crates are more reliable than boxes, can be stacked, are not damaged as
easily by water or handling, hold more, and are more secure.)  FTC
Facilities Management Specialist Declaration at 2.  Based on OMI's
technical superiority and lower price, FTC selected OMI's proposal for
award. 
    
MOR argues that it was improper for FTC to adjust its price upward for
purposes of the evaluation.  According to the protester, since the
solicitation required offerors' fixed prices to include the cost of all
required packing materials, it was obligated to furnish all necessary
crates for its offered price.  MOR asserts that its price in fact included
whatever crates might be required.
    
In considering a challenge to an agency's evaluation of proposals and
source selection decision, our review is confined to a determination of
whether the agency acted reasonably and consistent with the stated
evaluation factors and applicable procurement statutes and regulations. 
United Def. LP, B-286925.3 et al., Apr. 9, 2001, 2001 CPD P: 75
at 10‑11; Main Bldg. Maint., Inc., B-260945.4, Sept. 29, 1995, 95-2
CPD P: 214 at 4.  We find no basis to question the award to OMI.
    
Although the solicitation did require that offered prices for the base
moving services include the cost of all required packing materials, it
also specifically required offerors to specify how many crates were
included in their fixed prices.  Specifically, as noted above, the
solicitation required offerors to specify in the pricing schedule the
*[n]umber of packing crates included in the above price* for the base
moving services, Solicitation at 17; to include in their technical
proposal the *[n]umber of cartons or crates included in 'Base Moving
Services,'* id. at 13-14; and to provide in the additional/optional
pricing section of the schedule a *[p]rice per additional crates.*  Id.
at 4, 18.  MOR provided the requested numbers and prices.  In light of
these provisions, we think the solicitation, while inartfully written,
reasonably could be read as providing that, notwithstanding the general
fixed-price nature of the contract, the contractor would be paid for
additional crates (above the number included in the offeror's base price)
found necessary to perform the contract.  Since, under this reading of the
solicitation, the agency would be liable for MOR's price for additional
crates, it follows that there was nothing unreasonable in adjusting MOR's
price to reflect its determination that it would require a substantially
greater number of crates to perform.
    
To the extent MOR believes the quoted provisions should be disregarded,
its argument is untimely.  Even ignoring the interpretation discussed
above, the solicitation was at least ambiguous as to whether the
contractor would be paid (beyond its fixed base price) for additional
crates.  Any ambiguity in this regard was apparent from the face of the
solicitation.  An offeror may not simply make unilateral assumptions
regarding the meaning of patently ambiguous solicitation terms and then
expect relief when the agency does not act in the manner the offeror
assumed; rather, offerors must challenge apparent ambiguities prior to the
time set for receipt of initial proposals.  4 C.F.R. S: 21.2(a)(1) (2002);
American Connecting Source d/b/a Connections, B-276889, July 1, 1997, 97-2
CPD P: 1 at 3; Christie Constructors, Inc., B‑271759; B-271759.2,
July 23, 1996, 96-2 CPD P: 87 at 6.
    
MOR asserts that no additional packing containers will be
required‑‑and that no adjustment to its evaluated price was
necessary--because it in fact intended to furnish 9,000 crates, as well as
3,780 cardboard cartons.  According to MOR, nowhere in its proposal does
it specify 5,000 crates. 
    
MOR's position is not persuasive.  Notwithstanding its claim to the
contrary, given that there were to be 5 moves, the only reasonable
interpretation of its reference to *1,000 crates per move,* was that MOR
was offering a total of 5,000 crates.  Further, MOR does not explain, nor
is it otherwise evident, where in its proposal it indicated that MOR's
base price included 9,000 uses of a crate.  We thus see nothing
unreasonable in the agency's reading of MOR's proposal in this regard.  We
note that offerors are responsible for submitting an adequately written
proposal, and they run the risk that their proposal will be evaluated
unfavorably where they fail to do so.  Carlson Wagonlit Travel, B-287016,
Mar. 6, 2001, 2001 CPD P: 49 at 3. 
    
As for the number of additional crates that MOR would require, we think
FTC reasonably relied on the number proposed by OMI (10,070 crates).  This
number was at the lower end of the range previously estimated by the
agency (9,480 to 11,376  crates); MOR has asserted in its comments that it
in fact was estimating that a total of 12,780 containers (9,000 crates and
3,780 cardboard cartons) would be required, MOR Comments, Sept. 6, 2002,
at 1; MOR Comments, Oct. 24, 2002, at 1; and MOR has pointed to nothing in
its proposal that demonstrated that it could perform with some lesser
number of crates.  The 3,780 cardboard cartons MOR proposed were not a
substitute for an adequate number of crates.  This number of cartons was
inconsistent with the solicitation statement that cartons were meant only
to be *a supplement . . . for a small amount of items that must remain
packed beyond the crate rental period.*  Solicitation at 6.  In these
circumstances, FTC's determination to include the cost of an additional
5,070 crates (for a total of 10,070 evaluated crates) in MOR's evaluated
price was reasonable.  It follows that FTC reasonably evaluated MOR's cost
as higher than OMI's.
    
In any case, given the technical superiority of OMI's proposal, the
evaluated significant weaknesses in MOR's proposal, and OMI's consequent
higher score (96 versus 83 points), there is no basis for concluding that
MOR would have had a reasonable chance for award had the agency not
adjusted its price for purposes of the evaluation.  In this regard, the
solicitation did not provide that price would be more important than the
stated technical factors (understanding, appropriate methodology,
qualifications, and experience), or otherwise indicate the relative
importance of the factors; in these circumstances, it must be presumed
that they were of equal weight.  Forestry, Surveys & Data, B-276802.3,
Aug. 13, 1997, 97-2 CPD P: 46 at 2 n.1; Carol Solomon & Assocs., B-271713,
July 19, 1996, 96-2 CPD P: 28 at 2 n.2.  Since price was only one of five
factors, even if MOR had a price advantage, it would be entitled to
significantly less weight than OMI's evaluated technical superiority.
    
Although MOR generally asserts that the evaluation of its technical
proposal was unreasonable, it furnishes no basis to question FTC's
determination that its proposal included a number of weaknesses such that,
when considered with OMI's evaluated strengths, OMI's proposal was
technically superior.  For example, FTC found that MOR's proposal failed
to include the required detailed staffing plan, Solicitation at 13-14; FTC
noted that, while the solicitation specified 5 moves with significantly
varying numbers of employees being moved (including moves of 131, 99, 78,
131 and 74 employees), MOR proposed the same staffing level for each
move.  In addition, FTC determined that, not only were there gaps in MOR's
proposed staffing, but MOR's overall staffing level (4,340 labor hours)
was less advantageous than OMI's (5,534 labor hours). 
    
Although MOR maintains that its proposed staffing levels were more
accurate than OMI's, MOR essentially conceded in its initial protest that
its proposed staffing was inadequate when it indicated that it was unable
to furnish the required estimate of labor hours for moving FTC's
high‑density shelving and for the packing and unpacking of areas;
according to the protester, *MOR's proposal lacked OMI's proposal by
man-hours associated with the above items only.*  Protest at 4.  Further,
the fact that MOR proposed the same staffing for each move irrespective of
the number of employees to be moved offers no basis for confidence in the
reliability of its staffing estimates.  In any case, we find no basis for
concluding that it was unreasonable for FTC to evaluate OMI's larger
proposed staff as a benefit to the agency, such that it warranted
according OMI's proposal a relative strength in this regard. 
    
Under these circumstances, and in view of MOR's failure to propose
sufficient crates and to furnish a detailed staffing plan responsive to
the characteristics of each move, we find that FTC reasonably determined
that OMI's proposal indicated a superior understanding of the
requirements.  In addition, MOR has not rebutted FTC's determination that
OMI proposed a more detailed, superior schedule and approach, and had
superior experience with moving computers.  Accordingly, the agency
reasonably evaluated OMI's proposal as technically superior to MOR's.
    
MOR asserts that consultants retained by FTC in connection with the
procurement were biased against MOR.  However, in order to establish bias,
the protester must show both that the procurement official in question
specifically intended to harm the protester, and that this translated into
action that unfairly affected the protester's competitive position.  NLX
Corp., B‑288785, B-288785.2, Dec. 7, 2001, 2001 CPD P: 198 at 10
n.3; Arctic Slope World Servs., Inc., B‑284481, B-284481.2, Apr. 27,
2000, 2000 CPD P: 75 at 12. Where, as here, the record establishes that
the evaluation was reasonable, there is no basis to conclude that the
protester's competitive position was affected by any alleged bias.
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    
    

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

   [1] Although the solicitation was termed an *RFQ* in block 14 of Standard
Form 1449, it was elsewhere described as a request for proposals and the
agency views it as such.  Solicitation at 13-15, Amend. No. 2, Mover RFP
Questions; see Contracting Officer's Statement (COS), at 1; Memorandum of
Law at 1.  The proper designation is not relevant to our discussion here.