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