TITLE: B-311403, DIT-MCO International Corporation, June 18, 2008
BNUMBER: B-311403
DATE: June 18, 2008
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B-311403, DIT-MCO International Corporation, June 18, 2008

   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: DIT-MCO International Corporation

   File: B-311403

   Date: June 18, 2008

   Drew W. Marrocco, Esq., Sonnenschein Nath & Rosenthal LLP, for the
   protester.
   James H. Roberts, III, Esq., and Carrol H. Kinsey, Jr., Esq.,Van Scoyoc
   Kelly PLLC, for the intervenor.
   Howard B. Rein, Esq., Department of the Navy, for the agency.
   Scott H. Riback, Esq., and David A. Ashen, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that agency failed to conduct an adequate best value analysis is
   denied where award was made to the lower priced of two technically equal
   proposals and the protester does not timely challenge either the
   underlying technical or price evaluations; in a negotiated procurement
   with a best value evaluation award methodology, where selection officials
   reasonably regard proposals as being essentially equal technically, price
   properly may become the determining factor in making award,
   notwithstanding that the solicitation assigned price less importance than
   technical factor.

   DECISION

   DIT-MCO International Corporation protests the Department of the Navy's
   award of a contract to Eclypse International Corporation, under request
   for proposals (RFP) No. N68335-06-R-0133, for automatic wire test sets
   (AWTS). DIT-MCO asserts that the agency failed to conduct an adequate best
   value analysis in connection with its award decision.

   We deny the protest.

   The solicitation provided for award of an
   indefinite-delivery/indefinite-quantity contract, with an ordering period
   of 5 years, to the offeror whose proposal was determined to represent the
   "best value" when evaluated under four factors: technical, past
   performance, experience and price. Technical was slightly more important
   than past performance, which was slightly more important than experience;
   technical, past performance and experience together were "significantly
   more important than price." RFP at 60. However, the RFP further advised
   that the importance of price "will increase with the degree of equality of
   the proposals in relation to the other factors on which selection is
   based." Id.

   Four timely proposals were received in response to the RFP, including
   those of the protester and the awardee. After conducting discussions with
   the offerors and obtaining final proposal revisions, the Navy determined
   that Eclypse's proposal represented the best value. In this regard, while
   the agency evaluated Eclypse's and DIT-MCO's proposals as essentially
   equal under the non-price factors, with both proposals receiving overall
   technical ratings of satisfactory/low risk, as well as very low risk
   ratings for past performance and experience, the agency initially
   calculated the price of DIT-MCO's proposal as $29,605,110, nearly $6
   million higher than the $23,668,807 evaluated price of Eclypse's proposal.
   Agency Report (AR) exh. 4, Source Selection Evaluation Board Memorandum;
   AR exh. 5, Source Selection Advisory Council Memorandum; AR exh. 6, Source
   Selection Authority Memorandum, Feb. 6, 2007; AR exh. 8, Source Selection
   Authority Memorandum, Mar. 12, 2008. Consistent with the best value
   determination, the Navy made award to Eclypse.

   Subsequently, during the Navy's February 12, 2008 post-award debriefing of
   DIT-MCO, the protester questioned the agency's price evaluation. When the
   agency then reexamined the proposed prices, it determined that the
   evaluated price of Eclypse's proposal in fact should have been
   $21,402,727, while that of DIT-MCO's proposal should have been
   $22,050,300. Since, however, the Navy continued to view both proposals as
   essentially equal under the non-price factors, and the evaluated price of
   Eclypse's proposal remained low even after the recalculation of prices,
   the agency determined that Eclypse's proposal continued to represent the
   best value. AR exhs. 4, 5, 6.

   On February 19, DIT-MCO filed an agency-level protest with the Navy,
   maintaining that the agency's best value source selection decision was
   arbitrary because the initial decision had been based on an inaccurate,
   much larger price difference, and the agency had failed to perform an
   adequate best value determination after recalculating the evaluated
   prices. In connection with its review of the protest, the agency prepared
   another source selection document that affirmed its award to Eclypse. AR
   exh. 8. After its agency-level protest was denied on March 12, DIT-MCO
   filed this protest with our Office on March 20.

   DIT-MCO asserts that the Navy improperly failed to perform an adequate
   source selection analysis using the recalculated evaluated prices. Noting
   that the agency's original source selection decision was based on the
   mistaken understanding that Eclypse's price was approximately 25 percent
   lower than DIT-MCO's, when in fact the actual price difference was only
   approximately 3 percent in favor of Eclypse, the protester maintains that
   the agency then improperly failed to make "a best value analysis that
   weighed, compared and assessed the technical, past performance and
   experience benefits and weaknesses of each offer against the price" as
   correctly recalculated. Protester Comments, Apr. 28, 2008, at 1. DIT-MCO
   asserts that the agency's actions had the effect of giving
   disproportionate weight to price--the least important evaluation
   factor---in the award decision.

   We find the protester's position to be without merit. Again, the record
   reflects that the Navy determined Eclypse's and DIT-MCO's proposals to be
   essentially equal under the non-price factors, with "[t]he technical
   evaluation team [finding] nothing during their review of the proposals
   that would distinguish between DIT-MCO and Eclypse based on the [AWTS]
   unit that they are offering." AR exh. 4, at 2.

   Although the record indicates that DIT-MCO was advised by the Navy during
   the February 12 postaward debriefing that both its proposal and Eclypse's
   had received the same ratings under the non-price factors, with no
   discernible technical differences in the proposed equipment, Agency
   Report, Apr. 17, 2008, at 4, the protester did not challenge the technical
   evaluation results in its initial, agency-level protest. Rather, DIT-MCO
   first challenged the technical evaluation in its March 20 protest to our
   Office, when it asserted that the awardee's proposed product failed to
   meet the RFP requirements relating to size and weight, and that the
   evaluation improperly failed to account for DIT-MCO's advantages in this
   area and with respect to AC dielectic testing. Under our Bid Protest
   Regulations, however, protests other than those based on alleged
   solicitation improprieties generally must be filed no later than 10
   calendar days after the protester knew, or should have known, of the basis
   for protest, whichever is earlier. 4 C.F.R. 21.2(a)(2) (2008). Since
   DIT-MCO has made no showing that its challenge to the technical evaluation
   was based on new information learned after the debriefing and thus could
   not have been raised in its agency-level protest, its failure to raise
   this protest ground within 10 days of the debriefing in its agency-level
   protest renders untimely the subsequent assertion of this protest ground
   in its protest to our Office. Foundation Eng'g Scis., Inc., B-292834,
   B-292834.2, Dec. 12, 2003, 2003 CPD para. 229 at 3 n.2.

   While the protester is correct that agencies must adequately document
   cost/technical tradeoff decisions, detailing the relative strengths and
   weaknesses of the various proposals and explaining the reasons underlying
   a cost/technical tradeoff, Johnson Controls World Servs., Inc., B-289942,
   B-289942.2, May 24, 2002, 2002 CPD para. 88 at 6-7, no cost/technical
   tradeoff was required here, since the proposals were determined to be
   technically equal and the agency made award to the offeror submitting the
   lowest priced proposal. Further, the award was consistent with the terms
   of the solicitation. Although the RFP provided that the non-price
   evaluation factors were significantly more important than price, it also
   provided that, as proposals became more equal under the non-price factors,
   the importance of price would increase. RFP at 60. In this regard, in a
   negotiated procurement with a best value evaluation methodology, where
   selection officials reasonably regard proposals as being essentially equal
   technically, price properly may become the determining factor in making
   award, notwithstanding that the solicitation assigned price less
   importance than technical factors. Synergetics, Inc., B-299904, Sept. 14,
   2007, 2007 CPD para. 168 at 7. In these circumstances, in the absence of a
   timely challenge to either the technical or cost evaluation results, we
   find the award to Eclypse on the basis of its lowest priced, technically
   equal proposal to be unobjectionable.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel