TITLE: B-299931; B-299931.2, GlassLock, Inc., October 10, 2007
BNUMBER: B-299931; B-299931.2
DATE: October 10, 2007
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B-299931; B-299931.2, GlassLock, Inc., October 10, 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: GlassLock, Inc.
File: B-299931; B-299931.2
Date: October 10, 2007
Robert S. Brams, Esq., and Elizabeth M. Gill, Esq., Patton Boggs LLP, for
the protester.
Jonathan S. Baker, Esq., Environmental Protection Agency, for the agency.
Katherine I. Riback, Esq., and James A. Spangenberg, Esq., Office of
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Under a solicitation for competitive quotations issued under the
Federal Supply Schedule program that only provided for vendors to submit
prior experience/past performance references for the past 5 years, an
agency improperly considered and awarded strengths, based on information
provided by the successful vendor with its quotation, for projects that
were completed more than 5 years ago.
2. Agency failed to evaluate quotations reasonably or in accordance with
the solicitation where strengths relating to the successful vendor's
experience and past performance were assigned under the project
plan/schedule technical factor, which did not encompass evaluation of the
vendor's experience and past performance, and where the solicitation
contained a separate evaluation factor for experience/past performance
under which the successful vendor received consideration for its
experience/past performance.
3. Under solicitation for competitive quotations issued under the Federal
Supply Schedule program that provided for a tradeoff analysis with
technical factors being more important than price, agency improperly based
issuance of an order on the lowest-priced, technically acceptable
quotation.
DECISION
GlassLock, Inc. protests the award of a task order to Commercial Window
Shield (CWS) under request for quotations (RFQ) No. RFQ-DC-07-00168,
issued by the Environmental Protection Agency (EPA) for the procurement
and installation of window retrofits for window glass fragment retention
in 15 EPA facilities in the United States and Puerto Rico.[1] GlassLock
argues that the agency's evaluation of CWS's quotation and the selection
of that quotation for award were unreasonable.
We sustain the protests.
BACKGROUND
The RFQ contemplated the award of a fixed-priced order based upon a
competition among Federal Supply Schedule (FSS) vendors. The solicitation
stated that award would be made to the vendor representing the "best
value," and listed, in descending order of importance, prior
experience/past performance on similar projects, project plan/schedule,
and organization and staffing as the technical evaluation factors; the
technical factors combined were said to be more important than price.[2]
RFQ at 1-3. The solicitation requested that vendors provide price offers
on two different options: (1) security film with attachment systems and
(2) security film only; the RFQ stated that the EPA would choose the
option it determined to be the best value to the Government. RFQ at 1.
The agency received quotations from three vendors, including CWS and
GlassLock, by the RFQ's closing date. GlassLock's quotation was evaluated
as [DELETED] by the TEP under each of the three technical factors and
overall, with a total price for option No. 2 of [DELETED] AR, Tab 5, TEP
Report, at 2-4; Tab 6, Source Selection Decision, at 3. CWS's quotation
received from the TEP an [DELETED] rating for the prior experience/past
performance on similar projects factor, an [DELETED] rating for the
project plan/schedule factor, and an [DELETED] rating for the organization
and staffing factor, with an overall rating of "above average" and a total
price for option No. 2 of [DELETED][3] AR, Tab 5, TEP Report, at 5-7; Tab
6, Source Selection Decision, at 3. Because of the "huge cost difference
between" the vendors' option No. 2 prices, the agency contacted CWS to
review its pricing, ensure there were no errors, and provide a price
breakdown to account for these differences. Based on its review of the
information provided and after a further conversation with one of CWS's
references, the agency determined that CWS could successfully perform the
work at its quoted price. AR, Tab 6, Source Selection Decision, at 3-4.
The agency determined that because of budget constraints option No. 2 met
the agency's needs, and given that both GlassLock and CWS were
"technically acceptable," CWS's low-priced quotation represented the best
value to the government.[4] Id.
GlassLock protests that the agency's evaluation of CWS's quotation under
every one of the evaluation factors was unreasonable and inconsistent with
the terms of the solicitation, and that the source selection was made on a
"lowest-priced, technically acceptable determination," in violation of the
RFQ's evaluation scheme that provided for a tradeoff analysis between
technical factors and price.
Where an agency conducts a formal competition under the FSS program, as is
the case here, we will review the agency's actions to ensure that the
evaluation was fair and reasonable and consistent with the solicitation.
COMARK Fed. Sys., B-278343, B-278343.2, Jan. 20, 1998, 98-1 CPD para. 34
at 4-5. Based on our review, we find that the agency's evaluation under
the prior experience/past performance on similar projects factor and
project plan/schedule factor was unreasonable and inconsistent with the
announced evaluation criteria, and that the award decision was not in
accordance with the solicitation, which gave greater weight to the
technical factors.
PRIOR EXPERIENCE/PAST PERFORMANCE ON SIMILAR PROJECTS FACTOR
With regard to the prior experience/past performance on similar projects
factor, the solicitation required that vendors provide a narrative that
discussed five projects that most closely represented the project elements
of similar scope, size and complexity, and that "must have been
substantially completed within the past five years." The RFQ stated that
this evaluation factor would measure the extent and relevance of the
offeror's prior experience as well as whether the vendor "delivered high
quality work in a positive and professional partnership with the client."
RFQ at 1-2.
The protester argues that in evaluating CWS's experience and past
performance the agency not only considered the five projects that CWS had
performed within the past 5 years that it had listed in its quotation, but
also considered certain other past performance of the firm that were
discussed in an introductory letter to its quotation, most of which
occurred more than 5 years ago, for example, a 1998 project at the Federal
Bureau of Investigation Headquarters; a project at the Pentagon prior to
the attacks of September 11, 2001; a project in 2000 for the Department of
Energy headquarters; and a project in 2001 at the United States Capitol.
Supp. Protest at 2; see AR, Tab 4, CWS Proposal, Introductory Letter, at
1-2.
The agency responds that CWS's introductory letter was not the basis for
the TEP's evaluation of CWS's past performance. Supp. AR at 3. This agency
contention is contradicted by the TEP Report and the source selection
document.
As stated above, the agency gave CWS an [DELETED] rating for the prior
experience/past performance on similar projects factor. In so doing, the
TEP Report listed four strengths and no weaknesses. Two of the four noted
strengths for this factor refer to the information in CWS's introductory
letter:
o Extensive, documented experience in this field. (Intro, pp. 1-2;
Past Experience, pp. 1-6).
o Impressive work on previous projects for the Capitol Building and
other nearby government facilities.[5] Reflects capability to work
in a high-security environment.
AR, Tab 5, TEP Report, at 5. The source selection document stated the
following regarding CWS's quotation and the prior experience/past
performance on similar contracts factor:
The TEP noted that the strengths of Commercial Window Shield was its
extensive, documented experience in this field; numerous, similar
projects, i.e., attachments/framing and film, or film only; impressive
work on previous projects for the Capitol Building and other nearby
government facilities, as this reflects capability to work in a
high-security environment; and outstanding customer feedback via letters
of recommendation. No weaknesses or risks were noted.
AR, Tab 6, Source Selection Decision, at 2. Thus, the record shows that,
contrary to the RFQ requirements, CWS provided in the introductory letter
of its quotation experience/past performance references on projects that
CWS had performed more than 5 years ago, and that these projects were
recognized as strengths and were a significant part of the agency's
evaluation of this evaluation factor and source selection decision.
It is a fundamental principle of government procurement that competition
must be conducted on an equal basis, that is, offerors must be treated
equally and be provided with a common basis for the preparation of their
proposals. This principle is violated where, as here, an offeror provides
past performance references beyond those allowed by the solicitation and
the agency considers those references in evaluating proposals. See
Electronic Design, Inc., B-279662.2 et al., Aug. 31, 1998, 98-1 CPD para.
69 at 10-11. Thus, the agency's evaluation of CWS's proposal under this
factor was improper and we sustain the protests on this basis.[6]
PROJECT PLAN/SCHEDULE FACTOR
The project plan/schedule factor required that vendors provide a project
schedule for execution of the project from award of the task order to
completion and acceptance of the buildings. The solicitation provided that
project schedules that included specific details of the activities for
each location and that were organized in a realistic and achievable order
would be judged more favorably. RFQ at 2.
As indicated, CWS's proposal was rated [DELETED] under this factor. In so
doing, the TEP assigned CWS's proposal two strengths, the only strengths
that it received for this factor, for completing projects on schedule and
for completing "projects under challenging conditions requiring greater
flexibility and adaptability to customer constraints." The TEP also
assigned CWS's proposal two weaknesses under the factor: (1) absence of
detail in the narrative explanation of the activities to be conducted and
(2) no evidence of measures to ensure close and continuous coordination
with the government. The TEP also found a risk that CWS "[m]ay not provide
for sufficient planning and coordination to minimize problems associated
with this variety of facilities included in the project." AR, Tab 5, TEP
Report, at 6.
GlassLock maintains that the evaluated strengths under the project
plan/schedule factor properly belonged under the prior experience/past
performance on similar contracts factor, and that for the agency to
consider this same information under both factors amounted to "double
counting," and therefore CWS's quotation should not have received an
[DELETED] rating under this factor. Supp. Protest at 3.
The agency does not rebut or otherwise specifically respond to the
protester's contention, but states that the "TEP noted some strengths and
some weaknesses/risks associated with CWS under this evaluation factor and
reasonably rated its project plan/schedule as [DELETED]" Supp. AR at 4.
We agree with the protester that the agency essentially "double counted"
CWS's past performance information by assigning strengths in addition to
evaluating them under the specific factor that addressed experience and
past performance. See J.A. Jones Mgmt. Servs., Inc., B-254941.2, Mar. 16,
1994, 94-1 CPD para. 244 at 6. As stated above, the project plan/schedule
factor was for the agency to evaluate each vendor's proposed project
schedule, that is, how the vendor would perform the work, and to judge
whether each vendor adequately described the flow of activities at each
site from the award of the task order to acceptance of the buildings, and
did not indicate that a vendor's experience/past performance would be
considered. RFQ at 2. As CWS's only two strengths under the project
plan/schedule factor were for matters not for consideration under this
factor, we cannot find that the agency's evaluation of CWS's proposal was
consistent with the RFP's evaluation criteria. We thus sustain this
protest basis.
ORGANIZATION AND STAFFING FACTOR
The organization and staffing factor required that each vendor provide a
project organization chart, which at a minimum should "address project
management, project superintendence, quality assurance/control, and
project controls." RFQ at 2-3. The TEP assigned CWS's quotation an
[DELETED] rating for this factor. AR, Tab 5, TEP Report, at 7. In support
of this rating, the TEP assigned the following strength: "Proposed project
organization adequately addresses principal elements- preparation,
supply/logistics, installation, and quality control. (Org. & Staffing p.
1)." Id.
The protester contends that the agency incorrectly evaluated CWS's
quotation under this factor because the TEP assigned CWS's quotation the
strength, even though page 1 of the quotation assertedly failed to address
project management, quality assurance/control, and project controls, as
was indicated by the TEP Report. Supp. Protest at 4.
While the first page of the organization and staffing portion of CWS's
quotation did not reference quality control, it did contain an
organizational chart that pertained to project controls and project
management, and a narrative describing the responsibilities of the
proposed key personnel relating to project controls and project management
(which discussion continued to the next page of this portion of the
quotation). AR, Tab 4, CWS's Quotation, at 68-60. Page three of the same
section describes CWS's plan for quality control. Id. at 70. In our view,
GlassLock has provided no basis to question the agency's evaluation of
this factor.
PRICE
As stated above, CWS's total price for option No. 2 of $406,644 was
considerably lower than the other vendors' prices, and it was for this
reason that the agency obtained a greater price breakdown to confirm that
CWS could perform the work at the price quoted.
GlassLock contends that CWS's price was unreasonable and unrealistic, and
failed to include adequate documentation to support its price, and that
the agency improperly allowed CWS to supply a further breakdown of its
price. Supp. Protest at 4.
The RFQ contained no provision that required quoted prices to be evaluated
for realism. Nevertheless, when the agency ascertained that CWS's price
was much lower than the other vendors' prices, the agency appropriately
took steps to ensure the price was not a mistake and that CWS was capable
of performing the work at the quoted price. In furnishing the price
information, CWS did not change its price. Based on this further breakdown
and after a further conversation with CWS's reference, the agency
determined that CWS could perform the work at the price proposed. We find
the agency's evaluation of CWS's price unobjectionable.
SOURCE SELECTION DECISION
Finally, the protester asserts that the agency abandoned its RFQ
evaluation scheme, which provided for a tradeoff analysis between the
technical factors and price with the technical factors being more
important than price, and instead made award based on the lowest-priced
quotation. Supp. Protest at 5.
Agencies cannot announce in a solicitation an evaluation scheme that
provides for a tradeoff analysis with the technical factors being
considered more important than price and then disregard the evaluation
scheme and make award based on the lowest-priced, technically acceptable
submission. See Trijicon, Inc., B-244546, Oct. 25, 1991, 91-2 CPD para.
375 at 5, 7.
Here, the source selection decision reported the factor ratings of the
quotations, from which it concluded that "[b]ased on the technical
evaluations, both GlassLock and [CWS] were impressive," that both "would
be able to effectively perform the required work," and that both
quotations were "technically acceptable." AR, Tab 6, Source Selection
Decision, at 3-4. Then after acknowledging that the technical factors were
more important than price, it determined that CWS's quotation represented
the best value without any further comment. Id. at 4. Absent from the
decision is any analysis, determination or even statement that CWS's lower
price offset the technical advantages that could result from GlassLock's
quotation's higher technical ratings. Thus, we agree with the protester
that the source selection decision was improperly made based on the
lowest-priced, technically acceptable quotation and we sustain this
protest ground.
RECOMMENDATION
We recommend that the agency reevaluate quotations in accordance with the
terms of the solicitation, giving each evaluation factor its appropriate
weight. Following the evaluation, the agency should determine which
quotation is most advantageous to the government in accordance with the
RFQ. In the event that the protester's quotation is determined to be most
advantageous to the government, the agency should terminate the order
issued to CWS and award to the protester. We also recommend that the
protester be reimbursed the cost of filing and pursuing the protest,
including reasonable attorneys' fees. Bid Protest Regulations, 4 C.F.R.
sect. 21.6(d)(1) (2007). In accordance with 4 C.F.R. sect. 21.6(f), the
protester's certified claim for such costs, detailing the time expended
and costs incurred, must be submitted directly to the agency within 60
days after receipt of this decision.
The protests are sustained.
Gary L. Kepplinger
General Counsel
------------------------
[1] We recognize that this protest involves an RFQ; however, the agency
throughout its procurement record uses language appropriate to
procurements under a request for proposals, including references to
offerors and to an award. We have retained the language used by the agency
in some instances for consistency with the underlying record.
[2] With regard to the non-price evaluation factors, the technical
evaluation panel (TEP) assigned adjectival ratings of "outstanding,"
"above average," "average," "below average," and "unsatisfactory."
Supplemental Agency Report (Supp. AR), Tab 1, Technical Evaluation
Information (May 21, 2007), at 3.
[3] The prices offered for option No. 1 ranged from [DELETED] to
[DELETED]. The prices offered for option No. 2 ranged from [DELETED] to
[DELETED]. AR, Tab 6, Source Selection Decision, at 3.
[4] The third vendor proposed GlassLock as subcontractor to perform the
work and its highest-priced quotation was not considered for award.
[5] This refers to the projects discussed in CWS's introductory letter,
inasmuch as none of the five projects performed in the last 5 years
identified in the experience/past performance section of CWS's proposal
were performed in or around Washington, D.C.
[6] The protester also argues that the agency's evaluation under this
factor was improper because the projects that CWS had performed were not
multi-site projects, and therefore not sufficiently similar to the scope,
size, and complexity to the solicited work. We disagree. We first note
that the RFQ did not identify experience in "multi-site" projects as a
specific indicia of project comparability with regard to scope, size or
complexity. We also note that CWS listed as a project that it had
performed within the past 5 years, work that it had performed at the
Merrill Lynch Headquarters in New York, which involved working on two
buildings simultaneously. AR, Tab 4, CWS's Quotation, at 28. Based on this
project, and the other four projects that CWS listed that it had performed
within the past 5 years, the TEP reasonably determined that CWS's past
performance references were relevant and not inconsistent with an
[DELETED] rating under this factor. We have no reason to question the
agency's evaluation in this regard, although for the reasons stated above,
the TEP's and Source Selection Decision's reliance on projects submitted
by CWS outside the 5-year period specified by the RFQ was improper.