TITLE: B-299931; B-299931.2, GlassLock, Inc., October 10, 2007
BNUMBER: B-299931; B-299931.2
DATE: October 10, 2007
*******************************************************
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.