TITLE: B-297553, Bio-Rad Laboratories, Inc., February 15, 2006
BNUMBER: B-297553
DATE: February 15, 2006
*******************************************************
B-297553, Bio-Rad Laboratories, Inc., February 15, 2006

   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: Bio-Rad Laboratories, Inc.

   File: B-297553

   Date: February 15, 2006

   John E. Jensen, Esq., and Daniel S. Herzfeld, Esq., Pillsbury Winthrop
   Shaw Pittman LLP, for the protester.

   John G. Horan, Esq., and Jason A. Carey, Esq., McKenna Long & Aldridge
   LLP, for IDEXX Laboratories, Inc., the intervenor.

   Mark G. Garrett, Esq., and Elin M. Dugan, Esq., Department of Agriculture,
   for the agency.

   John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Where a solicitation failed to disclose the relative weight of the
   listed subfactors of the primary technical factor, the subfactors should
   have been considered approximately equal in weight, even though the
   procurement was intended to be conducted using Federal Acquisition
   Regulation (FAR) Part 13 simplified acquisition procedures and FAR
   sect. 13.106-1(a)(2) states that the relative importance of evaluation
   factors and subfactors need not be disclosed in a solicitation, because
   the solicitation did not indicate that the acquisition was being conducted
   under FAR Part 13 and the acquisition was conducted in a manner that was
   not distinguishable from a negotiated acquisition conducted under FAR Part
   15, which requires that the relative weights of the evaluation factors and
   subfactors be stated in the solicitation.

   2. Agency's selection of a proposal for award was unreasonable where the
   solicitation was silent as to the relative weights of the subfactors of
   the primary technical evaluation factor, and the agency, rather than
   treating the subfactors as equal in weight in evaluating the relative
   merits of the competing proposals, considered the subfactors as listed in
   descending order of importance.

   3. Agency failed to evaluate proposals reasonably or in accordance with
   the terms of the solicitation's past performance and organizational
   experience evaluation factor where the undocumented and conclusory
   evaluation evidences that the agency did not meaningfully evaluate the
   organizational experience component of this factor.

   4. Agency's evaluation of the large business awardee's proposal as
   "neutral" or "satisfactory" under the solicitation's evaluation factor
   considering the participation of small disadvantaged businesses and other
   types of small businesses was unreasonable and inconsistent with the
   solicitation, where the proposal stated that there would not be any such
   participation in contract performance.

   DECISION

   Bio-Rad Laboratories, Inc. protests the award of a contract to IDEXX
   Laboratories, Inc., under request for proposals (RFP) No. 061-M-APHIS-04,
   issued by the Animal and Plant Health Inspection Service (APHIS),
   Department of Agriculture, for bovine spongiform encepalopathy (BSE)
   testing systems and test kits.[1] Bio-Rad argues that the agency's
   evaluation of proposals and selection of IDEXX's proposal for award were
   unreasonable.

   We sustain the protest.

   BACKGROUND

   Since the BSE testing system was considered to be a commercial item, the
   RFP was issued as an acquisition for a commercial item incorporating the
   special requirements applicable to the acquisition of commercial items.
   See Federal Acquisition Regulation (FAR) Part 12. The RFP provided for the
   award of a fixed-price contract with both definite-quantity and
   indefinite-quantity line items to the offeror submitting the proposal
   determined to represent the best value to the government, based upon the
   following evaluation factors, listed in descending order of importance:
   technical capability of the item offered to meet the Government
   requirement, past performance and organizational experience, small
   disadvantaged business participation, and price. [2] RFP at 18, 35, 51.

   Offerors were referred to the RFP's proposal preparation instructions for
   information regarding the specifics of the agency's intended evaluation
   under each of the evaluation factors. RFP at 35. In this regard, the
   solicitation included detailed instructions for the preparation of
   proposals, and requested that offerors submit separate technical and
   business proposals. The RFP advised offerors that their technical
   proposals "must present sufficient information to reflect a thorough
   understanding of the requirements and a detailed[] description of the
   techniques, procedures and a program for achieving the objectives of the
   specifications." RFP at 53. The solicitation further requested that
   technical proposals be comprised of three sections, with section I
   addressing technical capability, section II addressing past performance
   and organizational experience, and section III addressing the
   participation of small disadvantaged businesses and other types of small
   businesses. RFP at 54-57.

   The agency received proposals from four offerors, including Bio-Rad and
   IDEXX, by the RFP's closing date. Contracting Officer's Statement at 2;
   Agency Report (AR), Tab 5, Technical Evaluation Board (TEB) Consensus
   Memorandum, at 1. The proposals were evaluated, two rounds of discussions
   were conducted with each offeror, and final revised proposals were
   requested and received. Contracting Officer's Statement at 2.

   Bio-Rad's proposal was evaluated as "good+" under the technical capability
   factor, "good" under the past performance and organizational experience
   factor, "excellent" under the small disadvantaged business participation
   factor, and "good+" overall, at an evaluated price of $3,181,556.[3] AR,
   Tab 7, Business Clearance Memorandum (BCM), at 25. IDEXX's proposal was
   evaluated as "good+" under the technical capability factor, "satisfactory"
   under the past performance and organizational experience and the small
   disadvantaged business participation factors, and "good" overall, at an
   evaluated price of $2,063,260. Contracting Officer's Statement,
   attach. IV; AR, Tab 7, BCM, at 25.

   The agency, consistent with the terms of the RFP, notified IDEXX "of its
   leading status in the evaluation process," and directed IDEXX to
   "coordinate logistics" with agency personnel to have an IDEXX testing
   system delivered to the agency for "confirmation testing." AR, Tab 7, BCM,
   at 27; see RFP at 54. The record reflects that as a result of what the
   agency characterizes as "minor difficulties" encountered during the
   confirmation tests, the agency "lowered" the rating of IDEXX's proposal
   under the technical capability factor from "good+" to "satisfactory."
   Contracting Officer's Statement at 5; attach. IV; AR, Tab 6, TEB Consensus
   Memorandum, at 2. The source selection authority (SSA) determined that
   IDEXX's proposal, which was now evaluated as "satisfactory" under the
   technical capability, past performance and organizational experience, and
   small disadvantaged business participation factors, and "satisfactory"
   overall, with an evaluated price of $2,063,260, represented the best value
   to the government, and award was made to that firm. AR, Tab 8, Source
   Selection Memorandum, at 4.

   Bio-Rad protests that the agency's evaluation of its and IDEXX's proposals
   under the technical capability, past performance and organizational
   experience, and small disadvantaged business participation factors was
   unreasonable and inconsistent with the terms of the solicitation.

   TECHNICAL CAPABILITY FACTOR

   With regard to the technical capability factor, the solicitation requested
   that offerors respond to 12 specific subparagraphs set forth in the RFP
   that each described a desired or important feature or characteristic of
   the items to be supplied. RFP at 54-56; see AR at 6-7. The agency's SSP
   (not provided to the offerors) stated that proposals would be evaluated
   under the listed "standards" set forth in the 12 subparagraphs, and
   provided for specific ratings or a range of ratings to be assigned under
   each of the 12 subparagraphs.[4] AR, Tab 3, SSP, at 2-5. The specific
   ratings assigned to Bio-Rad's and IDEXX's proposals under each of the
   12 subparagraphs of the technical capability factor and the rating ranges
   established by the SSP were as set out in the following chart:

   +------------------------------------------------------------------------+
   |                |   Bio-Rad   |    IDEXX     |  Possible Rating Range   |
   |----------------+-------------+--------------+--------------------------|
   |Test Turnaround |Satisfactory | Satisfactory |       Excellent to       |
   |                |             |              |      Unsatisfactory      |
   |----------------+-------------+--------------+--------------------------|
   |Retest[5]       |  Excellent  |  Excellent   |   Satisfactory to Poor   |
   |----------------+-------------+--------------+--------------------------|
   |Expediency      |Satisfactory | Satisfactory |    Excellent to Poor     |
   |----------------+-------------+--------------+--------------------------|
   |Inconclusiveness|  Excellent  | Satisfactory |       Excellent to       |
   |                |             |              |      Unsatisfactory      |
   |----------------+-------------+--------------+--------------------------|
   |Ease of Use     |    Good     |     Good     |    Excellent to Poor     |
   |----------------+-------------+--------------+--------------------------|
   |Service/Support |  Excellent  |Satisfactory -|    Excellent to Poor     |
   |----------------+-------------+--------------+--------------------------|
   |Complete Kit    |  Excellent  | Satisfactory |    Excellent to Poor     |
   |----------------+-------------+--------------+--------------------------|
   |Versatility     |  Excellent  |  Excellent   | Excellent to Acceptable  |
   |----------------+-------------+--------------+--------------------------|
   |Multi Testing   |Satisfactory+|Satisfactory+ |   Satisfactory or Poor   |
   |----------------+-------------+--------------+--------------------------|
   |Data Integrity  |Satisfactory |Satisfactory -|    Excellent to Poor     |
   |----------------+-------------+--------------+--------------------------|
   |Throughput      |  Excellent  |  Excellent   |    Excellent to Poor     |
   |----------------+-------------+--------------+--------------------------|
   |Warranty        |  Excellent  |    Good+     |    Excellent to Poor     |
   |----------------+-------------+--------------+--------------------------|
   |OVERALL         |    GOOD+    | SATISFACTORY |                          |
   +------------------------------------------------------------------------+

   AR, Tab 3, SSP, at 2-5; Tab 7, BCM, at 21, 25.

   The protester argues that the agency failed to properly consider the
   results of the evaluation under the technical capability factor in
   selecting IDEXX's proposal for award. Specifically, Bio-Rad contends that
   although the solicitation was silent as to the relative weight of the 12
   subparagraphs or subfactors comprising the technical capability factor,
   and that these subfactors should thus have received equal weight, the
   agency improperly considered the subfactors as listed in descending order
   of importance. Protester's Comments at 12-13 n.5 and 6; Protester's
   Supplemental Comments at 2-3.

   In considering this aspect of Bio-Rad's protest, we note as an initial
   matter that both the SSP and BCM provided that the procurement was
   conducted under simplified acquisition procedures. AR, Tab 3, SSP, at 1;
   Tab 6, BCM, at 5. Simplified acquisition procedures are designed to, among
   other things, reduce administrative expenses, promote efficiency and
   economy in contracting, and avoid unnecessary burdens for agencies and
   contractors. FAR sect. 13.002; American Artisan Prods., Inc., B-293801.2,
   June 7, 2004, 2004 CPD para. 127 at 3. These procedures provide discretion
   to contracting officers to use one or more of the evaluation procedures in
   FAR Parts 14 and 15. See FAR sect. 13.106-2(b); American Artisan Prods.,
   Inc., supra. Although simplified acquisition procedures require that
   offerors be notified of the basis on which award will be made, they do not
   as a general matter require that solicitations "state the relative
   importance assigned to each evaluation factor and subfactor." FAR
   sect.13.106-1(a)(2); cf. Finlen Complex, Inc., B-288280, Oct. 10, 2001,
   2001 CPD para. 167 at 8-10 (notwithstanding the statement in the
   solicitation that simplified acquisition procedures were being used, an
   agency's failure to disclose the relative weight of evaluation factors was
   unreasonable because basic fairness dictated disclosure of the relative
   weights where the agency required offerors to prepare detailed written
   proposals addressing unique government requirements and the solicitation
   otherwise indicated that one factor would be important but in the
   evaluation the agency treated that factor as the least important one).

   In contrast, where an acquisition utilizes FAR Part 15 negotiated
   procedures, FAR sect. 15.304(d) provides that "[a]ll factors and
   significant subfactors that will affect contract award and their relative
   importance shall be stated clearly in the solicitation." We have
   recognized where a solicitation does not disclose the relative weight of
   evaluation factors or subfactors in a FAR Part 15 procurement, they should
   be considered approximately equal in importance or weight. See Foundation
   Health Fed. Servs., Inc.; Humana Military Healthcare Servs., Inc.,
   B-278189.3; B-278189.4, Feb. 4, 1998, 98-2 CPD para. 51 at 6.

   Here, nothing in the solicitation provided or otherwise informed offerors
   that FAR Part 13 simplified acquisition procedures applied,[6] and as
   indicated above, this procurement was conducted in a manner that was not
   distinguishable from a negotiated acquisition conducted under the rules
   set forth in FAR Part 15.[7] That is, detailed proposals were requested,
   received, and evaluated, discussions were conducted and revised proposals
   were received and evaluated, followed by a second round of discussions,
   the submission and evaluation of final proposal revisions, and a best
   value determination. Contracting Officer's Statement at 1-4. Given that
   the RFP on its face did not notify offerors that FAR Part 13 simplified
   acquisition procedures were being used and otherwise reasonably indicated
   that the procurement was for a commercial item using FAR Part 15
   negotiated procedures, offerors could presume that the Part 13 provisions,
   which gave the agency the authority not to assign weight to the evaluation
   subfactors, were not applicable to this procurement, and that the ordinary
   rules that require the disclosure of the relative weight of factors and
   subfactors were applicable. See Finlen Complex, Inc., supra. Because of
   this and because the solicitation was silent as to the relative importance
   or weight of the 12 subparagraphs constituting the subfactors of the
   technical capability factor, offerors could reasonably presume that the
   12 subfactors were approximately equal in importance or weight. Foundation
   Health Fed. Servs., Inc.; Humana Military Healthcare Servs., Inc., supra.

   As conceded by the agency, it is clear from the record that the SSA did in
   fact consider the 12 subparagraphs to be subfactors of the technical
   capability factor that were listed in descending order of importance. See
   Agency Supplemental Report at 4 (agency concedes that the subparagraphs
   "were not accorded equal weight during the . . . evaluation of Technical
   Capability," but "[i]nstead were weighted in descending order of
   importance"). For example, with regard to Bio-Rad's proposal, the SSA
   noted in determining which proposal represented the best value to the
   government that Bio-Rad's proposal "offered a licensed product that was
   satisfactory in the primary technical areas of consideration, test
   turnaround and expediency," and that "[t]he firm was excellent in retest
   and inconclusiveness, other primary areas of technical consideration." The
   SSA also commented here that "[t]he majority of Bio-Rad's technical
   assessments were excellent as well," but concluded that "given [the
   proposal's] assessment of satisfactory in some of the primary areas of
   technical consideration, I did not assess the overall technical proposal
   as excellent." AR, Tab 8, Source Selection Memorandum, at 2. The SSA noted
   with regard to IDEXX's proposal as evaluated under the technical
   capability factor that "[t]he firm offered a licensed product that was
   satisfactory in the primary technical areas of test turnaround, retest,
   expediency and inconclusiveness." The SSA went on to state that, even
   though IDEXX's proposal had been assigned a rating of "poor in the sixth
   area of technical consideration, service, I did not find reason to lower
   IDEXX's summary assessment below satisfactory given the technical order of
   significance."[8] Id. at 4.

   Thus, the record shows that the SSA focused on the fact that Bio-Rad's
   proposal was rated "satisfactory" under some of what the SSA inaccurately
   viewed as the most heavily weighted subfactors to justify assigning
   Bio-Rad's proposal less than an excellent rating under the technical
   capability factor, while apparently discounting its strengths under the
   evaluation subfactors that the SSA believed to be less important.
   Additionally, in discussing IDEXX's proposal, the SSA focused on the
   similarity of IDEXX's ratings to Bio-Rad's under what the SSA considered
   to be the three most important subfactors while attaching less importance
   to IDEXX's lower ratings under other subfactors. An agency's evaluation of
   proposals and source selection cannot be determined reasonable and
   consistent with the stated evaluation criteria where the weight applied to
   the evaluation subfactors differs from that in the solicitation. See
   ProTech Corp., B-294818, Dec. 30, 2004, 2005 CPD para. 73 at 8; see also
   Foundation Health Fed. Servs., Inc.; Humana Military Healthcare Servs.,
   Inc., supra.

   On this record, we find that the fact that the SSA weighted the subfactors
   of the technical capability factor in descending order of importance in
   making and justifying the award selection, rather than weighting them
   equally, as implicitly indicated by the solicitation, has undermined the
   reasonableness of the agency's conclusions as to the relative merits of
   the proposals under this factor, including the conclusion that Bio-Rad's
   proposal merited an overall rating of "good+" and IDEXX's proposal merited
   a rating a "satisfactory." Given this misevaluation, we cannot conclude
   that the award selection based upon this skewed weighting of the
   subfactors of the technical capability factor was reasonable.[9]

   PAST PERFORMANCE AND ORGANIZATIONAL EXPERIENCE FACTOR

   Bio-Rad next argues that the agency's evaluation of proposals under the
   past performance and organizational experience factor evidences that the
   agency, at best, only evaluated proposals with regard to the past
   performance component of this evaluation factor, and failed to evaluate or
   otherwise consider the proposals with regard to the factor's
   organizational experience component. Protest at 9-10; Protester's Comments
   at 19-21. Bio-Rad contends that it was prejudiced by the agency's error
   here, arguing that "Bio-Rad's test is used to screen 70% of all animals
   tested for BSE throughout the world" and that it therefore has significant
   organizational experience with its BSE testing kits and systems, whereas
   in contrast "IDEXX ha[s] little experience installing a BSE testing system
   and performing contracts." Protester's Comments at 20.

   In reviewing protests against allegedly improper evaluations, it is not
   our role to reevaluate proposals. Rather, our Office examines the record
   to determine whether the agency's judgment was reasonable and in accord
   with the RFP's stated evaluation criteria. In order for us to review an
   agency's selection determination, an agency must have adequate
   documentation to support that decision. While adjectival ratings and/or
   point scores are useful as guides to decision-making, they generally are
   not controlling, but, rather, must be supported by documentation of the
   relative differences between proposals, their weaknesses and risks, and
   the basis for the selection decision. Biospherics Inc., B-278504.4 et al.,
   Oct. 6, 1998, 98-2 CPD para. 96 at 4.

   The RFP's proposal preparation instructions for the past performance and
   organizational experience factor stated with regard to the past
   performance component of the factor that "[t]he Government's assessment of
   past performance will be subjective, and based mainly on offeror
   reputations with customers and others," and that "[t]he Government will
   evaluate the performance data obtained from multiple sources." The RFP
   specified that "[o]fferors should submit references for recent and
   relevant contracts," and that "[t]he Government will contact these
   references for past performance information on the offeror." The
   solicitation explained with regard to the organizational experience
   component of the factor that "[o]rganizational experience is the
   opportunity to learn by doing," and that [a]n offeror's experience is
   relevant when they have been confronted with the kinds of challenges that
   will confront them under the contract contemplated by this RFP." Offerors
   were informed with regard to the organizational experience component of
   the factor that "[t]his evaluation will consider the breadth, depth and
   relevance of offeror work performed since 2001 in the BSE testing arena,"
   and stated that to facilitate this evaluation "[f]irms shall provide a
   written narrative detailing organizational experience with BSE on a
   domestic and international basis." RFP at 56-57.

   The proposals of both Bio-Rad and IDEXX included detailed descriptions of
   their past performance and organizational experience. For example, both
   proposals included lengthy customer/client lists and descriptions of
   contracts performed, with Bio-Rad's proposal including a section expressly
   addressing its organizational experience with its BSE testing systems and
   kits. AR, Tab 13, IDEXX's Technical Proposal, at 12-17; Tab 17, Bio-Rad's
   Technical Proposal, at 423-33.

   The contemporaneous record, however, includes completed scoring sheets for
   this factor for IDEXX's and Bio-Rad's proposals from only a single
   evaluator, with the scoring sheets for both IDEXX and Bio-Rad stating "no
   background" under the two criteria relevant to the past performance
   component of this factor,[10] and "excellent based on documentation" in
   the area of "[b]readth of relevant experience in several related
   projects." AR, Tab 24, Evaluator Scoring Sheets, at 1,074, 1,085. The only
   other indications in the contemporaneous record of the evaluation of
   Bio-Rad's proposal under this factor are statements set forth in the TEB
   Consensus Memorandum and BCM that essentially parrot back the definitional
   language from the past performance and organizational experience scoring
   sheets that were to be completed by the evaluators. Specifically, the
   scoring sheets defined the rating of "good" for this factor as follows:

     Record of performance more favorable than unfavorable and/or the offeror
     has a breadth of relevant experience in several related projects.
     Offeror has generally satisfied previous customers and not violated laws
     and regulations.

   AR, Tab 3, SSP, at 11. The TEB Consensus Memorandum and BCM contain the
   following statement with regard to the agency's evaluation of Bio-Rad's
   proposal under this factor:

     The firm has a "Good" record of performance that's more favorable than
     unfavorable and the offeror has breadth of relevant experience in
     several related projects. Previous customers are generally satisfied and
     the firm has followed applicable regulations.

   AR, Tab 6, TEB Consensus Memorandum, at 10; Tab 7, BCM, at 21. This latter
   comment (which was also made verbatim with regard to the two other
   proposals that received "good" ratings under the past performance and
   organizational experience factor) and the scoring sheet entries detailed
   above represent the totality of the contemporaneous record of the agency's
   evaluation of Bio-Rad's proposal under this evaluation factor.[11]

   Additionally, the contracting officer's statement submitted in response to
   the protest includes the following additional explanation with regard to
   the evaluation of Bio-Rad's proposal under the past performance and
   organizational experience factor:

     In reviewing Past Performance I searched online federal past performance
     databases and questioned Agency contracting personnel with knowledge of
     Bio-Rad from previous contracts. The review of online past performance
     systems did not identify any information, positive or negative. However,
     individuals within the Agency with Bio-Rad acquisition familiarity were
     available for comment./blockquote>

       In addition, Past Performance data on Bio-Rad was available from the
       Technical Evaluators['] personal knowledge of previous federal work
       with Bio-Rad. Given the Agency's knowledge of Bio-Rad from previous
       awards and business interactions, Bio-Rad was rated "Good" in the area
       of Past Performance. The firm had recent and relevant experience in
       similar projects in size and scope. The firm did not receive the
       highest possible rating of "Excellent" since the Agency had
       experienced difficulties with Bio-Rad in the past concerning
       administrative issues on previous awards such as correctly submitting
       quotation prices in accordance with shipping instructions and
       supplying subcontracting plan data.

     Contracting Officer's Statement at 3-4.[12]

     As set forth above, the contemporaneous record is devoid of any
     meaningful documentation of the agency's evaluation of Bio-Rad's
     proposal under the past performance and organizational experience
     factor. The unsupported and unexplained conclusion by one evaluator that
     both offerors' "breadth of experience" was "excellent," and the
     paraphrasing of the SSP's definition of "good" by the TEB Consensus
     Memorandum and the BCM, are insufficient to support the reasonableness
     of the agency's evaluation of the proposals under this factor. See
     Biospherics Inc., supra, at 4-5. The contracting officer's statement
     evidences that at best the agency gave some consideration to Bio-Rad's
     past performance, but no meaningful consideration to the offerors'
     organizational experience "in the BSE testing arena."[13] See RFP at 56.
     On this record, we agree with the protester that the agency failed to
     evaluate proposals in accordance with the terms of the RFP, in that the
     agency failed to meaningfully consider the merits of the competing
     proposals under the organizational experience component of the past
     performance and organizational experience factor. In sum, based on our
     review, we cannot find that the agency's evaluation of this factor was
     reasonable or in accordance with the RFP.[14]

     SMALL DISADVANTAGED BUSINESS PARTICIPATION FACTOR

     Bio-Rad finally argues that the agency's evaluation of IDEXX's proposal
     as "satisfactory" under the small disadvantaged business participation
     factor was unreasonable.

     The proposal preparation instructions stated with regard to the small
     disadvantaged business participation factor that offerors "[s]hall
     identify in this section of the technical proposal specific large
     business, small business, HUBZone small business, small disadvantaged
     business, [WOSB], [VOSB], and HBCU/MI and Service Disabled Veteran-owned
     small business subcontract participation in contract performance." RFP
     at 56. The RFP concluded here that "[t]he proposed participation of
     subcontractors will be evaluated based on the information submitted in
     the Subcontractor Information Sheet," a copy of which was provided as an
     attachment to the solicitation. RFP at 57.

     The section of IDEXX's technical proposal addressing the small
     disadvantaged business participation factor consists of one sentence,
     which states that "[t]here is no subcontract participation in the
     contract performance."[15] AR, Tab 13, IDEXX's Technical Proposal, at
     18. The Subcontractor Information Sheet attached to IDEXX's proposal
     contained a single notation of "-NA-." Id. at 19.

     The agency evaluated IDEXX's proposal under the small disadvantaged
     business participation factor as follows:

       [IDEXX] does not propose any subcontracting under this contract and
       did not submit a subcontracting plan. Therefore, the firm is
       technically neutral in this area and will receive a "Satisfactory"
       rating.

     AR, Tab 6, TEB Consensus Memorandum, at 11; Tab 7, BCM, at 23. The
     Source Selection Memorandum provides some explanation as to the
     reasoning behind this aspect of the agency's evaluation, stating:

       The firm did not intend to subcontract any portion of the subject
       contractor to large or small business entities if it received award.
       Therefore, in accordance with the [FAR] and the [SSP] I found the firm
       satisfactory in the area of small business subcontracting.

     AR, Tab 8, Source Selection Memorandum, at 4.

     In responding to Bio-Rad's protest, the agency does not defend the
     propriety of its evaluation of IDEXX's proposal under the small
     disadvantaged business participation factor as "satisfactory." With that
     said, we note that contrary to the apparent belief of the SSA, there is
     no provision in the FAR that either requires or allows an agency, under
     the circumstances here, to evaluate a proposal as "neutral" and thus
     "satisfactory" under a factor designed to evaluate the participation of
     small disadvantaged businesses and the other types of small businesses,
     where the proposal expressly provides that there will be no
     participation by such businesses if the offeror is awarded the contract.
     Additionally, and contrary to the view of the SSA, there is nothing in
     the SSP or RFP providing or otherwise indicating that the evaluation of
     IDEXX's proposal as "satisfactory" under the circumstances here was
     appropriate, particularly given that firm's large business status.[16]
     Accordingly, the agency's evaluation of IDEXX's proposal under the small
     disadvantaged business participation factor as "satisfactory" was not
     reasonably based.

     The agency does argue with regard to its evaluation of proposals under
     the small disadvantaged business participation factor that Bio-Rad's
     proposal, which received a rating of "excellent," should have in fact
     received a lower rating. Agency Supplemental Report at 11. The agency
     points out here that Bio-Rad's proposal "failed to identify specific
     subcontractors for this evaluation factor." Id. at 9. The agency thus
     argues that the protester was not prejudiced by any alleged error in its
     evaluation of IDEXX's proposal as "satisfactory" under the small
     disadvantaged business participation factor because "Bio-Rad should have
     received a lower score--the same score for this factor as IDEXX." Id. at
     11.

     We are not persuaded by the agency's argument that there was no
     reasonable possibility of prejudice. While we consider the entire
     record, including statements and arguments in response to a protest in
     determining whether an agency's selection decision is supportable, we
     accord greater weight to contemporaneous evaluation and source selection
     materials rather than judgments, such as the agency's argument here,
     made in response to protest contentions. Boeing Sikorsky Aircraft
     Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD para. 91 at
     15. Here, the agency does not acknowledge that it erred with regard to
     its evaluation of IDEXX's proposal under the small disadvantaged
     business participation factor. Rather, we are faced with an agency's
     efforts to defend, in the face of a bid protest, its prior source
     selection through submission of new analysis regarding the relative
     merits of competing proposals under an evaluation factor and its effect
     on the source selection.[17] The lesser weight we accord the agency's
     post-protest reevaluation of only Bio-Rad's proposal reflects the
     concern that, because it was prepared in the heat of the adversarial
     process, it may not represent the fair and considered judgment of the
     agency, which is a prerequisite of a rational evaluation and source
     selection process. Here, not only does the protester dispute the merits
     of the agency's after-the-fact evaluation, but that post-protest
     evaluation also conflicts with the initial evaluation of Bio-Rad's
     proposal.

     CONCLUSION

     We sustain the protest. We recommend that the agency amend the
     solicitation to state the relative weights of the 12 subfactors of the
     technical capability evaluation factor. The agency should reopen
     discussions in any event, request and evaluate revised proposals in a
     manner consistent with the terms of the solicitation.[18] If upon
     reevaluation the agency determines that Bio-Rad or another offeror's
     proposal represents the best value to the government, the agency should
     terminate IDEXX's contract for convenience and award a contract to the
     appropriate offeror. We also recommend that Bio-Rad be reimbursed the
     costs of filing and pursuing its protest, including reasonable
     attorney's fees. Bid Protest Regulations, 4 C.F.R. sect. 21.8(d)(1)
     (2005). Bio-Rad's certified claim for costs, detailing the time and
     costs incurred, should be submitted within 60 days after receipt of this
     decision.

     The protest is sustained.

     Anthony H. Gamboa
     General Counsel

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

   [1] BSE is commonly known as "mad cow disease."

   [2] The small disadvantaged business participation factor was to consider
   not only small disadvantaged business participation, but also "specific
   large business, small business, HUBZone [historically underutilized
   business zone] small business, small disadvantaged business, woman-owned
   small business (WOSB), veteran-owned small business (VOSB), and HBCU/MI
   [historically black colleges and universities and minority institutions]
   and Service Disabled Veteran-owned small business subcontract
   participation in contract performance." RFP at 57.

   [3] The Source Selection Plan (SSP) provided that proposals could receive
   overall ratings of excellent, good, satisfactory, or poor under the
   technical capability, past performance and organizational experience, and
   small disadvantaged business participation factors. AR, Tab 3, SSP, at
   5-6, 10.

   [4] For example, the RFP provided that proposals would be evaluated under
   the "test turnaround" subparagraph "on an adjectival range of `Excellent'
   to `Unsatisfactory,'" and that "[a]ny firm evaluated as `Unsatisfactory'
   will not be further evaluated and will not be considered for award." AR,
   Tab 3, SSP, at 2. As indicated on the following chart, the SSP assigned
   different ranges of possible ratings for different subparagraphs.

   [5] The proposals of Bio-Rad and IDEXX received ratings for "retest" that
   exceeded the applicable adjectival rating scale set forth in the SSP. We
   also note that in the SSP and the solicitation, the "retest" subparagraph
   is actually listed just below the "expediency" subparagraph, but the
   evaluation documentation lists "retest" just above "expediency."

   [6] Similarly, there is no evidence in the record outside of the
   solicitation that the offerors were otherwise informed (for example, in a
   synopsis) that this procurement was to be conducted under FAR Part 13
   simplified acquisition procedures.

   [7] The fact that the procurement was for a commercial item does not mean
   the simplified acquisition procedures apply. While FAR Subpart 12.6
   provides for the "optional" use of the streamlined procedures of FAR Part
   13 in the acquisition of commercial items, commercial items can also be
   acquired under FAR Part 14 or Part 15. In fact, FAR sect. 12.602(a)
   provides that while disclosure of the relative importance of evaluation
   factors is not required where commercial items are acquired under FAR Part
   13, the disclosure of the relative importance of evaluation factors is
   required for the acquisition of commercial items under other than FAR
   Part 13 simplified acquisition procedures.

   [8] In fact, the record shows that that the SSEB rated IDEXX's proposal
   "satisfactory -" for service/support. AR, Tab 7, BCM, at 15, 21. The
   referenced quote from the source selection statement was to illustrate
   that the SSA did not give great weight to IDEXX's rating and weaknesses
   under this subfactor because he regarded it as the sixth most important
   subfactor.

   [9] Bio-Rad also protests that the agency unjustifiably rated Bio-Rad's
   proposal less than excellent under some of the technical capability
   subfactors and that its proposal should have received a higher overall
   rating than "good+" under the factor. Bio-Rad also protests that the
   agency should have assigned lower ratings to IDEXX's proposal under
   certain of the subfactors. We need not consider these issues, given our
   conclusion that the agency failed to evaluate proposals in accordance with
   the terms of the solicitation under the technical capability factor, and
   as explained below, under the past performance and organizational
   experience and small disadvantaged business participation factors, and our
   recommendation that the agency reopen discussions, request and evaluate
   revised proposals, and make a new source selection.

   [10] The two criteria not evaluated by this (or apparently any other)
   evaluator concerned the offeror's record of conforming to the
   specifications and adherence to contract schedules.

   [11] In responding to Bio-Rad's challenge to the propriety of the agency's
   evaluation of proposals under the past performance and organizational
   experience factor, including the protester's assertion that the agency
   failed to consider "organizational experience" as provided for by the RFP,
   the agency points only to the above-quoted language from the TEB Consensus
   Memorandum and BCM as evidence that the agency's evaluation of proposals
   under this evaluation was reasonable and complete. AR at 11.

   [12] There is no contemporaneous documentation of this evaluation by the
   contracting officer.

   [13] The contracting officer's statement also does not indicate, and the
   record does not evidence, that he performed any similar evaluation of
   IDEXX's past performance, which was rated satisfactory. The record also
   contains no details, but only conclusory comments, regarding why this
   rating was assigned. See AR, Tab 6, TEB Consensus Memorandum, at 10; Tab
   7, BCM, at 21.

   [14] Bio-Rad also argues here that the agency failed to conduct
   discussions with it regarding the adverse past performance described in
   the contracting officer's statement. Again, we need not consider this
   additional basis of protest given our conclusion that the agency failed to
   evaluate proposals in accordance with the terms of the solicitation, and
   our recommendation that the agency reopen discussions and request and
   evaluate revised proposals.

   [15] Both IDEXX and Bio-Rad are large businesses. AR, Tab 12, IDEXX's
   Business/Cost Proposal, at 163; Tab 16, Bio-Rad's Business Proposal, at
   366.

   [16] As noted above, the SSP contemplated an adjectival range of excellent
   to poor for this factor. AR, Tab 3, SSP, at 6.

   [17] We note that there is no supporting documentation for the agency's
   new analysis, and nothing in the record reflecting that it was either made
   or reviewed by any of the evaluators, the contracting officer, or the SSA.
   Rather, the record explicitly associates only agency counsel with the
   agency's reevaluation of Bio-Rad's proposal during the course of this
   protest under the small disadvantaged business participation factor as
   well as its resultant conclusion that Bio-Rad was not prejudiced by any
   allegedly improper evaluation of IDEXX's proposal.

   [18] Given our recommendation that the agency reopen discussions, we need
   not consider the protester's argument that because the agency was aware
   after its receipt of final revised proposals that the protester had
   lowered its prices for BSE test kits, the agency was required to reopen
   discussions. Protest at 11.