TITLE: B-299582.4; B-299582.5, Korrect Optical, Inc., September 7, 2007
BNUMBER: B-299582.4; B-299582.5
DATE: September 7, 2007
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B-299582.4; B-299582.5, Korrect Optical, Inc., September 7, 2007
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: Korrect Optical, Inc.
File: B-299582.4; B-299582.5
Date: September 7, 2007
Kristen E. Ittig, Esq., and Caitlin K. Cloonan, Esq., Arnold & Porter LLP,
for the protester.
Dennis Foley, Esq., Department of Veterans Affairs, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
of the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
1. Protest that awardee's proposal failed to comply with material
solicitation requirement and thus could not form the basis for an award is
denied where record demonstrates that awardee's proposal did comply with
the requirement.
2. Where solicitation provided for award to the proposal determined most
advantageous to the government, price and other factors considered, and
agency reasonably determined proposals to be essentially equivalent with
regard to the non-price factors, selection of the awardee's proposal based
on its lower price was reasonable.
DECISION
Korrect Optical, Inc. protests the award of a contract to Safe-Lite
Optical Company under request for proposals (RFP) No. VA-246-07-RP-0002,
issued by the Department of Veterans Affairs (VA) to provide eyeglasses to
eligible veterans at VA Medical Centers in Veterans Integrated Service
Network 6. The protester contends that Safe-Lite's proposal was materially
deficient for failing to offer the required number of frame styles. The
protester also takes issue with the evaluation of its own proposal and the
agency's determination that all proposals were essentially equal
technically.[1]
We deny the protest.
BACKGROUND
The RFP contemplated the award of a fixed-price requirements contract for
eyeglasses incorporating various different types of lenses (e.g., single
vision, bifocal, progressive, trifocal, and high index), which are to be
fabricated upon receipt of prescriptions furnished by the VA clinics.[2]
The solicitation provided for award to the offeror whose proposal was
determined to be most advantageous to the government, price and other
factors (defined in the RFP as technical capability/quality and past
performance) considered, with the non-price factors of greater importance
than price.
Nine proposals were received by the February 1, 2007 closing date. Two of
the nine were immediately excluded from further consideration because the
offerors had failed to include sufficient technical information. A
technical evaluation panel (TEP) rated the remaining seven technical
proposals under 15 criteria pertaining to product quality, five criteria
pertaining to technical capability, a single criterion pertaining to
quality assurance, and four criteria pertaining to past
performance/experience.[3] The proposal that received the highest overall
point score for the product quality factors was assigned 35 points; each
of the other proposals was then assigned a point score reflecting the
percentage of the highest score that its score represented. For example,
because its technical point score was 78 percent of the highest score
received, Korrect's proposal was assigned a technical score of 27.3 (78
percent of 35). In like fashion, the proposal that received the highest
point score for technical capability was assigned 15 points, the proposal
that received the highest point score for quality assurance plan was
assigned 5 points, and the proposal that received the highest point score
for past performance was assigned 10 points, with the other proposals
receiving proportionately fewer points based on the relationship of their
scores to the highest score received.
Offeror point scores and evaluated prices were as follows:
+------------------------------------------------------------------------+
|Offeror |Product|Technical |Quality |Overall |Past |Price |
| |Quality|Capability |Assurance|Technical|Performance| |
|---------+-------+-----------+---------+---------+-----------+----------|
|Safe-Lite|33.25 |13.65 |3.5 |50.4 |10 |$4,873,141|
|---------+-------+-----------+---------+---------+-----------+----------|
|Korrect |27.3 |14.25 |4.75 |46.3 |9.7 |$6,638,915|
|---------+-------+-----------+---------+---------+-----------+----------|
|Offeror A|31.85 |15 |5 |51.85 |10 |[deleted] |
|---------+-------+-----------+---------+---------+-----------+----------|
|Offeror B|32.2 |14.1 |5 |51.3 |9.6 |[deleted] |
|---------+-------+-----------+---------+---------+-----------+----------|
|Offeror C|28.35 |13.05 |3.5 |44.9 |8.8 |[deleted] |
|---------+-------+-----------+---------+---------+-----------+----------|
|Offeror D|35 |14.7 |4 |53.7 |8.9 |[deleted] |
|---------+-------+-----------+---------+---------+-----------+----------|
|Offeror E|27.65 |13.2 |3.5 |44.35 |7.9 |[deleted] |
+------------------------------------------------------------------------+
Price Negotiation Memorandum at 3-5; Contracting Officer's Statement of
Record at 2. The contracting officer selected Safe-Lite's proposal for
award and notified other offerors of his decision. Following a debriefing,
Korrect protested the award to our Office. We dismissed the protest as
academic after the agency notified us that it would review the evaluation
of proposals and prepare a revised source selection decision.
After performing a review of the evaluation documentation, the contracting
officer determined that none of the proposals contained significant
weaknesses or deficiencies and that none had demonstrated a "qualitative
technical superiority;" accordingly, he considered them essentially
equivalent technically and again selected Safe-Lite's proposal for award
on the basis of its lowest price. After receiving notification of the
award and a debriefing, Korrect again protested to our Office.
DISCUSSION
Korrect argues that Safe-Lite's proposal failed to comply with a material
solicitation requirement pertaining to the number of frame styles offered
and thus was ineligible for award. In this connection, a proposal
submitted in response to an RFP that fails to conform to one or more of
the solicitation's material requirements is technically unacceptable and
cannot form the basis for an award. Farmland Nat'l Beef, B-286607,
B-286607.2, Jan. 24, 2004, 2004 CPD para. 31 at 8.
The item in question provided as follows:
SPECIAL NOTE -- FRAME SELECTION --Provide with your offer frame samples
in the following styles: twenty-five 25 Men's Frames, fifteen 15 Women's
Frames, 15 Unisex Frames, and 5 Safety Frames (Unisex Frames) in
available temple, eye and bridge sizes and colors. Frame selection will
include a mix of metals with plastic, spring hinges, and a minimal [sic]
of five (5) large frame sizes (54-60).
RFP at A-7. The protester maintains that it is clear from the debriefing
letter, which identified a total of 37 frame models offered by the
awardee, that Safe-Lite offered only 37 frame selections, rather than the
required total of 60.
The VA explains in response that although it was not apparent from the
debriefing letter, which identified only the make and model of the frames
offered by Safe-Lite, the awardee did in fact furnish a total of 60 sample
frames. The contracting officer explains that the discrepancy between the
number of models identified in the debriefing letter (37) and the number
of samples requested (60) is attributable to variations in materials,
special features, and sizes among the samples submitted by Safe-Lite; that
is, as we understand the agency's explanation, Safe-Lite's samples
included more than one variation of certain model numbers. The agency
further argues that the above-cited provision regarding the number of
frames to be furnished was intended not as a requirement, but rather as
guidance as to the "suggested number of frames to allow the TEP to
evaluate the overall quality of the frames being offered." Contracting
Officer's Statement of Record at 5.
We need not address the latter argument because we agree with the agency
that the RFP did not include a requirement that each frame sample be of a
different model, which is in essence what the protester is arguing. That
is, the RFP did not preclude offerors from submitting, or the agency from
considering, multiple versions of a particular frame model--for example,
frames of the same model composed of different materials--as separate
samples. While, as the protester asserts, this means that an offeror could
comply with the instruction for 60 samples by offering a limited number of
different models, each in multiple variations, the extent to which such an
approach resulted in a desirable range of frame choices would be a matter
for the agency's consideration in its technical evaluation.
Next, the protester argues that the contracting officer unreasonably
determined offerors' proposals to be essentially equivalent technically.
The protester asserts that the proposals were not equal to one another,
but were in fact quite different, each with its own technical strengths
and weaknesses.
The fact that each of the proposals had its own strengths and weaknesses
does not mean that the contracting officer could not reasonably have
determined the proposals to be essentially equivalent technically overall.
The agency does not assert that there were no technical differences
whatsoever among the proposals; its position is that none of the proposals
offered technical advantages or disadvantages sufficient to distinguish it
from the other proposals for purposes of the source selection
determination. One of the determinations to be made by agency source
selection officials is whether differences in technical merit among
proposals are significant, and there is nothing inherently unreasonable in
a selection official determining that they are not. See NKF Eng'g, Inc.;
Stanley Assocs., B-232143, B-232143.2, Nov. 21, 1988, 88-2 CPD para. 497
at 7. In any event, we fail to see how the protester was prejudiced by the
contracting officer's determination that its proposal, which had received
a lower overall technical rating than Safe-Lite's, was essentially
equivalent to Safe-Lite's technically.
Next, Korrect takes issue with the evaluation of its own offer, arguing
that its proposal should have received higher point scores under the
evaluation criteria pertaining to variety of frame styles, sizes, and
materials.
To the extent that the protester is arguing that based on the selection of
frames that it offered, its proposal should have been regarded as not
simply equivalent to Safe-Lite's proposal technically, but as superior to
it, it is clear from the record that the contracting officer did not
regard frame selection as an area in which it would be possible for any
proposal to be so significantly superior to the others as to have an
impact on the source selection determination. In this connection, the
contracting officer observed in his contemporaneous addendum to the Price
Negotiation Memorandum that even assuming that any of the offerors had
"maxed out in scoring" on the evaluation subfactors pertaining to variety
of frame styles, sizes, and materials, "that would not have been enough to
impact source selection." Addendum to the Price Negotiation Memorandum at
2. We do not find unreasonable the contracting officer's position that
frame variety was simply not a significant enough consideration, in the
context of the numerous subfactors relating to product quality, to have a
meaningful impact on source selection.
Next, the protester asserts that the agency failed to perform an adequate
evaluation of offerors' past performance. Korrect argues that the
contracting officer represented in the Price Negotiation Memorandum that
past performance data were used only to confirm past performance and to
determine whether any vendor had encountered any serious problems or
deficiencies. The protester contends that this implies that the agency
used the past performance data only to confirm that each offeror had a
"clean" past performance record, which was inconsistent with its
responsibility under the FAR to perform a comparative assessment of
offerors' past performance.
We think that the protester has mischaracterized the contracting officer's
statements. In the Price Negotiation Memorandum, the contracting officer
represented that the TEP, as discussed more fully below, had evaluated and
rated each firm's past performance, and that he had then sought to confirm
the absence of negative performance on the part of any offeror by sending
performance surveys to each offeror's references. In other words, the
contracting officer did not represent that the TEP had confined its
evaluation to determining whether offerors had encountered serious
problems; what he represented was that he had sought additional past
performance information, which he had used only to confirm that none of
the offerors had encountered serious problems, as indicated by the
agency's initial evaluation.[4] Accordingly, the record does not support
the protester's assertion that the agency used past performance
information only to confirm that offerors had a "clean" record of
performance.
Korrect further argues that the contracting officer represented in his
statement that since responses to his requests for past performance
surveys were "light" and no adverse information pertaining to any of the
offerors was received, "the past performance rating was generally high for
each of the seven vendors." Id. The protester contends that if the agency
did not receive past performance surveys pertaining to all offerors, all
of them should not have received high past performance ratings; rather,
the protester argues, the offerors for whom no information was received
should have received ratings of neutral.
The record shows that it is the contracting officer's assertion that the
past performance ratings for each of the seven vendors were "generally
high" that is misleading. The reason that all of the past performance
ratings were on the upper end of the rating scale is not that all of the
proposals received generally high ratings under the evaluation subfactors
pertaining to past performance/experience; the reason that all of the
point scores were on the upper end of the scale is that, as previously
explained, the agency's rating methodology involved assigning the proposal
(or proposals) that received the highest overall point score under the
past performance/experience subfactors the maximum possible score of 10,
and then assigning other proposals point scores based on the percentage of
the highest score that their scores represented. In other words, a high
score under the past performance/experience factor did not necessarily
indicate that an offeror had received generally high ratings with regard
to past performance and experience; all that it indicated was that the
offeror's overall point score for the factor was among the highest
received. Here, the highest point score received for the past
performance/experience factor was 75 (of 100), and the other scores ranged
from 59 to 73.[5] We do not think that such scores can reasonably be
termed high. Moreover, the majority of the scores assigned under each of
the two subfactors pertaining to past performance specifically (as opposed
to experience) were in fact 3s, the mid-point on the rating scale of 1-5,
and the highest average score under the two past performance subfactors
was 3.6. In other words, the record does not support a finding that as a
result of a lack of adequate past performance information, the evaluators
simply assigned all offerors high scores for past performance.
Finally, Korrect argues that the contracting officer failed to document
adequately the basis for his source selection decision. We disagree. It is
clear from the record that the basis for his decision was that all of the
proposals were essentially equivalent technically and that price was
therefore the determinative factor in the selection of an awardee.
The protest is denied.
Gary L. Kepplinger
General Counsel
------------------------
[1] In its initial protest, Korrect also alleged that Safe-Lite's prices
were materially unbalanced. The agency responded that while Safe-Lite had
proposed pricing lower than its competitors on several items, it had
proposed a significantly higher price on only a single item (i.e., glass
progressive lenses) for which the estimated quantity was only one per
year. Consistent with the requirements of Federal Acquisition Regulation
(FAR) sect. 15.404-1(g)(2), the contracting officer considered the risks
associated with Safe-Lite's pricing, and concluded that, given that the
overall difference between Safe-Lite's price and the next low price was
$1.7 million, there was no risk that Safe-Lite's high pricing on this one
item would result in Safe-Lite's overall price not being low. In its
comments on the agency report, the protester stated that it would not
further pursue this ground of protest. Protester's Comments, July 23,
2007, at 7 n. 2.
[2] While the RFP clearly contemplated that the contractor would furnish
eyeglass frames with the lenses (see, e.g., RFP sect. 5.11, which provides
in relevant part that "[w]hen fulfilling prescriptions, the contractor
shall provide completely assembled eyeglass frames"), it requested unit
prices for lenses, lens treatments, and lens cases only; that is, it did
not request separate unit pricing for frames.
[3] Each of five evaluators rated each proposal under each criterion on a
scale of 1 (representing unacceptable) to 5 (representing excellent). The
criteria pertaining to product quality were conformance to prescription;
prescription verification; delivery verification; lens strengthening; lens
coating; lens variety; lens materials; ANZI Z80 standards; frame style
variety; frame size variety; frame material variety; frame styles updated;
frame durability; frame comfort; and frame adaptability. The criteria
pertaining to technical capability were ability to meet 14-day delivery
standard; ability to make expedited deliveries; ability to make
adjustments to eyeglasses; management team; and safeguarding patient
healthcare information. The criterion pertaining to quality assurance was
overall quality assurance plan, while the criteria pertaining to past
performance and experience were record of past VA performance; record of
past non-VA performance; number of years of experience as a company; and
number of years of experience of staff.
[4] The contracting officer explained in a statement submitted in response
to this protest that the TEP had based its evaluation on information
bearing on past performance contained in the offerors' proposals and
information known to them personally. Contracting Officer's Statement of
Record at 2.
[5] The proposals of Safe-Lite and Offeror A each received scores of 75;
accordingly, each proposal was assigned the maximum possible score of 10.
Korrect's proposal received a point score of 73, which represented 97
percent of the maximum score (of 75) received; accordingly, its proposal
was assigned a past performance score of 9.7. The lowest-rated proposal
received a point score of 59, which represented 79 percent of the maximum
score attained; thus, the proposal was assigned a rating of 7.9