Evaluation factors-Continued
Performance-type specifications
Appropriateness of Navy's failure to conduct discussions with offerors
within competitive range in fixed price "turnkey" family housing pro-
curements and its award on initial proposal basis is questionable, in
view of many varied acceptable approaches of meeting "turnkey"
projects' performance-type specifications, since fact that offeror is
highest rated does not mean it is offering such "fair and reasonable"
price that oral or written discussions would not be required, even if there
are several competitive offerors...
Advantage to Government award basis
Whether difference in point scores assigned to competing technical
proposals is significant is for determination on basis of what difference
might mean in performance and what it would cost Government to take
advantage of it. Therefore, agency decision to award contract to less
costly offeror despite competing offeror's higher technical point rating is
proper exercise of discretion by selection officials...
Competitive range formula
Although use of predetermined cut-off score to establish competitive
range is not in accord with sound procurement practice, it is not preju-
dicial to offeror eliminated from competitive range in view of offeror's
low technical score of 44.8 points on 100-point scale in relation to scores
of proposals included in competitive range (96.3, $2.1 and 88.2)__.
Determination of competitive range on basis of three highest tech-
nically evaluated proposals without consideration of price and relative
weight vis-a-vis technical is improper since competitive range should
be determined from array of scores of all proposals submitted and with
regard to price. Although award will not be disturbed, agency is advised
to preclude recurrence of such deficiency in future procurements. 49
Comp. Gen. 402, overruled...
Incumbent protests against request for proposals (RFP) for aircraft
maintenance services requiring offerors to insert hourly rate multiplied
by estimated 600 man-hours for over and above work (11 percent of
contract) because it does not provide for recognition of incumbent's
experience and award to any other firm will not result in lowest cost.
Protest is denied because no wide discrepancies in performance are ex-
pected as RFP contains stringent experience responsibility requirements,
Government has significant control over man-hours to be expended, and
man-hours estimate is reasonable. Moreover, recognition of experience
is speculative and incumbent's suggested evaluation formulas would have
no effect on competitive standing of offerors_
Since question of whether given point spread between two competing
proposals as result of technical evaluation indicates significant superiority
of one proposal over another is primarily within discretion of procuring
agency and where point spread is 18 points out of 1,000, no basis exists
to object to agency's determination that proposals were essentially
equal_ _ _
CONTRACTS-Continued
Negotiation-Continued
Evaluation factors-Continued
Point rating-Continued
Evaluation guidelines
"Normalization" methodology used to compute dollar value of tech-
nical point spread between proposals did not conform to established
relative weights and produced misleading result which could have
affected source selection decision. Therefore, Comptroller General recom-
mends that source selection decision be reconsidered on basis of appro-
priate computation__.
Even if offeror's score for mission suitability should have been adjusted
downward for its improper escalation of Davis-Bacon Act wage rates,
impact on scoring would not be sufficient to make situation one where
given point spread between competing proposals indicates significant
superiority of one proposal over another___.
Source selection officials' determination that competing proposals are
technically equal, despite point spread of 47 out of 1000 and lower
echelon requiring activity's conclusion that higher rated proposal is
superior, is not subject to objection since point scores are only guides
for decision-making-.
Whether difference in point scores assigned to competing technical
proposals is significant is for determination on basis of what difference
might mean in performance and what it would cost Government to take
advantage of it. Therefore, agency decision to award contract to less
costly offeror despite competing offeror's higher technical point rating is
proper exercise of discretion by selection officials...
Agency improperly assigned maximum points for cost in evaluating
offerors' cost proposals where costs were not considered to be realistic
without making independent cost projection of offerors' estimated costs_
Price consideration not mandatory
If agency, in determining minimum needs, does not treat potential
suppliers fairly or inform them as fully as possible of what is needed, it
may reflect on reasonableness of minimum needs determination. Army
machine gun selection process, by which MAG58 was found to be mini-
mum need, was fair and although Army did not specifically set forth
bases on which weapons would be evaluated prior to side-by-side tests,
all parties realized weapon operational reliability was paramount per-
formance characteristic, and that cost was secondary in importance_-
Price elements for consideration
Where award on basis of initial proposal substantially varying from
RFP requirements has changed specifications and substantial uncer-
tainties in initial proposals and improper acceptance of late price modi-
fication required written or oral discussions with all offerors in competi-
tive range, protest is sustained. GAO recommends competition be re-
newed through discussions with offerors based on actual minimum
requirements, disclosing information showing relative importance of
price as evaluation factor. Depending on competition results, existing
contract should be terminated for convenience, or, if contractor remains
successful, contract should be modified pursuant to final proposal.
Modified in part by 55 Comp. Gen 972.
CONTRACTS-Continued
Negotiation-Continued
Evaluation factors-Continued
Price elements for consideration-Continued
Although cost was listed as least important of four evaluation factors
used in evaluation of proposals leading to award of fixed price contracts,
protester's claim that cost was ignored by agency is incorrect, since cost
was considered both in computation of numerical scoring and again in
source selection process. Since negotiated procurement was involved,
award may be made to technically superior offeror, notwithstanding
that offeror's higher price..
Contention that price was given undue weight is not supported where
evaluation provision stated that award would be made on basis of lowest
price of three highest technically acceptable proposals.
Although there were shortcomings and omissions in proposal of
awardee under Navy negotiated fixed price "turnkey" family housing
procurement and relatively minor inconsistencies and errors in technical
evaluation of protester's and awardee's proposal, determination by Navy,
in its broad discretion, that awardee had highest technically evaluated
proposal had reasonable basis, and initial proposal award based upon
lowest dollar per technical quality point ratio to awardee, who had higher
priced, higher technically rated proposal, was reasonable despite pro-
tester's over $600,000 lower offered price. -
Where prices of proposed lease plan for automatic data processing
equipment were effective through only 4 months of 96 months' systems
life, plan should have been rejected. RFP required that fixed or deter-
minable prices throughout systems life be offered. Fact that other lease
plans included in contract cover remainder of systems life is immaterial,
because RFP allowed only one plan to be considered in evaluation, and
unacceptable plan was only plan actually evaluated. Therefore, awards
were made without reasonable assurance of lowest overall cost to Gov-
ernment..
Fact that protester would have to absorb all direct costs exceeding its
ceiling price in fixed price incentive contract does not negate evaluator's
legitimate concern for anticipated costs over ceiling considering per-
formance and administration problems which reasonably can be expected
to result from contractor's loss position___.
Proposals v. firm commitments
Agency erred in merely accepting, without more, offeror's proposed
use of specific minority subcontractor, then using this fact as significant
basis for award decision. Evaluation of resources which offeror merely
proposes without contractual control or commitment is "patently irra-
tional." Agency must be reasonably assured that resources are firmly
committed to offeror, especially where consideration of factor in evalua-
tion may be determinative of award.
Since determinations of technical acceptability are within discretion
of procuring agency, in absence of clear evidence that agency acted arbi-
trarily, and record in this case is devoid of any evidence which would
justify our Office concluding that technical evaluations were without
reasonable basis, there is no basis to take exception to awards____
CONTRACTS-Continued
Negotiation-Continued
Evaluation factors-Continued
Superior product offered
Where procuring activity believes one proposal is superior to another,
determination made by higher echelon within agency that proposals are
technically equal is not subject to objection since higher level personnel
were acting within the scope of their authority for procurement involved. 1111
Failure to discuss all areas
Weaknesses v. deficiencies
Where agency did not discuss certain areas in proposals simply because
they were considered "weaknesses," in that they received less than
maximum number of evaluation points, as opposed to "deficiencies,"
which would not satisfy Govt.'s requirements, and agency also changed
award evaluation cost factors without communicating information to
offerors, it is recommended that option in contract not be exercised and
that requirement for option years be resolicited. Overruled by 56 Comp.
Gen. (B-187489, Mar. 29, 1977).
Fixed-price
Adjustment
Reimbursement
Failure of procuring activity to inform competing offeror in negotiated
procurement for fixed-price contract that Govt. would directly reimburse
contractor for interest on borrowings to finance plant expansion when
reimbursement is prohibited by agency procurement regulation denied
such offeror opportunity to compete on equal basis_ _
Cost data, etc. (See CONTRACTS, Negotiation, Cost, etc., data)
Government-furnished property
Allegation that Govt. permitted successful offeror to use public
research vessel in performance of contract but did not make vessel avail-
able to others is denied since record shows that assistance in obtaining
vessels was not provided to any offeror and successful offeror acquired
vessel in question 10 years ago under grant from entity which is unrelated
to procuring agency.
Conduct of negotiations with only firm considered to be in competitive
range does not require additional D&F to support sole source award
where procurement was negotiated pursuant to D&F justifying use of
negotiation authority under FPR 1-3.210(a) (8) relating to procurement
of studies and surveys...
Notwithstanding desired use of negotiated award method for given
procurement or range of procurements, negotiation must be objectively
justified in view of statutory preference (41 U.S.C. 252 (c)) for formal
advertising-
Late proposals and quotations
Although protest issues going to solicitation defects were filed after
closing date for receipt of proposals and are therefore untimely raised,
General Accounting Office will consider them because of interest of
U.S. District Court in GAO decision....
Late proposals and quotations-Continued
Hand carried
Protester's proposal, hand-delivered after time specified as closing
date for receipt of proposals, was properly not considered since it did not
fall within one of exceptions in applicable late proposal clause in RFP
which would permit its consideration. Protester's delay in obtaining
documents until before closing date for receipt of proposals, which
allegedly caused lateness of proposal, is deemed significant intervening
cause of lateness___.
Where proposal package was received in proper office by required
time, and such receipt was verified by procurement personnel in response
to offeror's telephone call, but without reference to offeror's mislabeling
of package with non-existent RFP number, proposal may be considered
timely received, notwithstanding return of package to offeror unopened
as result of incorrect labeling, and subsequent resubmission after closing
date for submission of proposals but before award-
Modification of proposal
Price increase
Contracting agency's position that late price increase submitted by
successful offeror upon extending its proposal did not involve late
modification to proposal or any unequal treatment to other offerors is
without merit. Decision is affirmed that late price increase was late
modification within meaning of RFP late proposals clause, and that
agency's acceptance amounted to conduct of irregular discussions with
successful offeror, since no discussions were held with other offerors
within competitive range-
None of the exceptions to formal advertising (as set forth in 41 U.S.C.
252(c)(1)–(15)) expressly authorizes use of negotiations only to secure
desired level of quality of janitorial services or to obtain incentive-type
contract. Moreover, analysis of legislative history of Federal Property
and Administrative Services Act (40 U.S.C. 471), under which questioned
negotiated award of services was made, shows that Congress specifically
rejected proposal to permit negotiation to secure desired level of quality
of supplies or services--
Minimum needs
Potential suppliers
Fair treatment
If agency, in determining minimum needs, does not treat potential
suppliers fairly or inform them as fully as possible of what is needed, it
may reflect on reasonableness of minimum needs determination. Army
machine gun selection process, by which MAG58 was found to be mini-
mum need, was fair and although Army did not specifically set forth
bases on which weɛpons woud be evaluated prior to side-by-side tests,
all parties realized weapon operational reliability was paramount per-
formance characteristic, and that cost was secondary in importance_----
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