TITLE: Cherokee Information Services, Inc., B-291718, March 3, 2003�����������
BNUMBER: B-291718
DATE: March 3, 2003�����������
**********************************************************************
Cherokee Information Services, Inc., B-291718, March 3, 2003
Decision
Matter of: Cherokee Information Services, Inc.
File: B-291718
Date: March 3, 2003
Michael I. Hodges for the protester.
Wilsie Y. Minor, Esq., Corporation for National and Community Services,
for the agency.
Peter Verchinski and James Spangenberg, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that agency failed to make award on the basis of the lowest-priced
proposal that had been included in the competitive range is denied where
this contention is based on the protester's unreasonable interpretation of
the solicitation, which contemplated award on the basis of a
price/technical tradeoff.
DECISION
Cherokee Information Services, Inc. protests the award of a contract to
Information Network, Inc. under request for proposals (RFP) No. HQMWS0215,
issued as a competitive section 8(a) set-aside, by the Corporation for
National and Community Services (CNCS), to provide integrated computer
facility support services. Cherokee argues that CNCS failed to follow the
solicitation requirements when it awarded the contract to an offeror that
had not submitted the lowest-priced proposal in the competitive range.
We deny the protest.
The RFP contemplated the award of a fixed-price, task order contract, with
a time-and-materials component for optional support services. CNCS sought
to consolidate into one contract work that had been performed by the
protester and two other contractors. Among other things, the solicitation
required the contractor to provide support for two separate help lines,
one for internal computer support and another to assist CNCS grantees
through the CNCS's eGrants system.
The RFP, as amended, included three sections explaining how offerors'
proposals would be evaluated. First, section A.17, Evaluation --
Commercial Items, stated that award was to be made to the responsible
offeror whose offer, conforming to the solicitation, would be most
advantageous to the government, price and other factors considered. This
section identified the following evaluation factors: technical, past
performance, price, and other.
Section A.18, Evaluation of Proposals, advised offerors how the technical
factor, the past performance factor, and price factor would be evaluated.
The ratings for each listed technical evaluation criterion of the
technical factor (in section A.19) were to be combined to determine the
overall technical rating, and *the results of the technical evaluation
will be used to determine whether an offeror's proposal will be considered
for inclusion within the competitive range.* Past performance was to be
evaluated based on the quality of the past performance, taking into
consideration the size and complexity of the procurement. Finally, under
the subheading *Price Evaluation,* the section stated that *[p]rice
proposals will be evaluated to determine which proposal offers the lowest
price to the government.* Offerors were also informed that a contract may
be awarded without discussions, and thus the initial proposal *should
reflect the offeror's ability to perform at a reasonable price.*
Section A.19, Evaluation Criteria, identified technical capabilities and
management plan as the technical factor criteria, and stated that the
technical factor was slightly more important than the past performance
factor. The section also stated that award would be based on the proposal
*determined to be in the best interest of the Government, price and other
factors included,* and indicated that this determination would be made
using a *trade-off process,* under which *price could become paramount in
the selection decision* if offerors' proposals were *considered
approximately the same or equal under the non-price factors.*
As conceded by the agency, notably absent from any section of the RFP was
any indication of the relative evaluation weight of price vis-`a-vis the
non-price factors.[1]
Further information regarding how price would be considered in the
evaluation was included in the first amendment, where it stated, at
question 42: *[Q:] Is this a two‑step proposal process? i.e., a.
Technically qualified; b. lowest bid. [A:] No.* The amendment also
stated, at question 105: *[Q:] Since price is the driving factor, what
factors are being used to evaluate best value? Can you describe by
example, the pricing methodology? [A:] The solicitation does not
indicate that price is the driving factor. However, price could become
paramount where offerors['] proposals are considered approximately the
same or equal under the non-price factors. Price will not be scored.*
Thirty-five proposals were submitted in response to the RFP. Four
proposals, including Cherokee's, were included in the competitive range.
CNCS conducted both written and oral discussions with the four firms.
Three of the four offerors subsequently submitted final proposal revisions
(FPR). Cherokee decided that its initial proposal, written responses to
questions, and the oral discussions were sufficient, and consequently did
not submit an FPR. After analyzing the FPRs, the technical evaluation
panel gave the proposal of the awardee, Information Network, Inc., the
highest score of the competitive range proposals for the technical factor
(88.25 points). Information Network also received the highest score for
the past performance factor (85.5 points). The protester's proposal
received the lowest total score of the competitive range proposals with a
technical score of 61.5 points and a past performance score of
69.6 points. The panel noted, among other things, that Cherokee's
proposal had failed to address the agency's evaluated concern that
Cherokee would not provide sufficient support for the eGrants help desk,
even though Cherokee had been informed of this inadequacy in the oral
discussions. CNCS awarded the contract to Information Network at a price
of $16,556,802. Shortly thereafter, Cherokee, which had proposed the
lowest price ($14,211,737) of the proposals in the competitive range,
protested.
Cherokee protests that the solicitation required CNCS to award the
contract to the lowest priced proposal found to be in the competitive
range. Since the solicitation failed to specify the relative weight of
price to non-price factors as required, Cherokee argues that offerors were
forced to *look further [in the solicitation] for evaluation methodologies
and importance (weight) of evaluated items.* Protest at 2. Cherokee
states that, if the contract was not awarded before discussions, and the
agency included more than one offeror in the competitive range, then the
statement, *[t]he results of the technical evaluation will be used to
determine whether an offeror's proposal will be considered for inclusion
within the competitive range for the purpose of discussions,* RFP S: A-18,
combined with the statement, *[p]rice proposals will be evaluated to
determine which proposal offers the lowest price to the government,* RFP
S: A-18, required CNCS to use price as the award determining factor in
selecting among the competitive range proposals.[2] Protest at 2-3. We
disagree.
In order for an interpretation of solicitation language to be reasonable,
it must be consistent with the solicitation when read as a whole.
Datacomm Mgmt. Servs., Inc., B-261089, Aug. 8, 1995, 95-2 CPD P: 259 at
5.
In a negotiated procurement, the government is not required to award to
the lowest priced offeror unless the evaluation criteria specify that
price will be the determining factor. D'Wiley's Servs., Inc., B-251912,
May 11, 1993, 93-1 CPD P: 377 at 3. Here, there was no language in the
RFP requiring the government to make an award using price as the
determining factor. As indicated by the context, the sentence in
section A-18, *[p]rice proposals will be evaluated to determine which
proposal offers the lowest price to the government,* only places the
offerors on notice as to how the agency intended to evaluate the price
factor; it did not indicate that price would be the award determinative
factor. Moreover, the protester's assertion, that price would become the
controlling factor once a competitive range is established, is also
essentially contradicted by the agency's response to question No. 105,
which informed the offerors that price would not be the *driving factor,*
and the RFP's statement that price could become paramount if two proposals
were deemed to be essentially equal. Furthermore, the RFP's statements
that the award would be based on a *trade-off process,* and that the award
would be made to an offeror whose proposal was in the *best interests* of
the government, considering price and other factors, clearly indicate that
price would be balanced against the non‑price factors in determining
the awardee.[3]
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] Solicitations are required to disclose the relative weight of price in
the evaluation. 41 U.S.C. S: 253a(c)(1)(C); Federal Acquisition
Regulation (FAR) S: 15.304(e). To the extent that Cherokee protests the
RFP's failure to disclose the relative weight of price, however, this
would constitute an untimely, post-award protest of an impropriety
apparent from the face of the solicitation, which was required to be
protested prior to the closing date for receipt of proposals. 4 C.F.R. S:
21.2(a)(1) (2002).
[2] To the extent that Cherokee may have been confused as to the basis for
award, it should have sought clarification before the proposals were due
or filed a protest contesting what it may have thought was an ambiguity in
the solicitation prior to the closing date for receipt of initial
proposals. 4 C.F.R. 21.2(a)(1).
[3] The statement in section A-18 that the results of the technical
evaluation would be considered in determining which proposals would be
included in the competitive range cannot reasonably be read as permitting
the technical factor evaluation to be considered only in establishing the
competitive range. Such a reading would be inconsistent with the RFP when
read as a whole, inasmuch as the RFP also listed past performance and
price as evaluation factors. All stated evaluation factors, including
price, must be considered in establishing a competitive range. Kathpal
Techs., Inc., Computer & Hi-Tech Mgmt., Inc., B-283137.3, et al., Dec. 30,
1999, 2000 CPD P: 6 at 9-12.