FAR 12.602:  Streamlined Evaluation of Offers

Comptroller General - Key Excerpts

In the context of an RFQ, when an agency chooses to employ competitive procedures similar to those used in a Federal Acquisition Regulation (FAR) Part 15 negotiated procurement, and when a protest is filed challenging the outcome of the competition, we will review the record to ensure that the agency’s evaluation of the vendors’ submissions was reasonable and consistent with the terms of the RFQ. Computer Assocs. Int’l, Inc.--Recon., B-292077.6, May 5, 2004, 2004 CPD para. 110 at 3; COMARK Fed. Sys., B-278343, B-278343.2, Jan. 20, 1998, 98-1 CPD para. 34 at 4-5. While the provisions of FAR Part 15, which govern contracting by negotiation, do not directly apply here, we will analyze Sytronics’ contentions by the standards applied to negotiated procurements. Labat‑Anderson, Inc., B-287081 et al., Apr. 16, 2001, 2001 CPD para. 79 at 5-6; Digital Sys. Group, Inc., B-286931, B-286931.2, Mar. 7, 2001, 2001 CPD para. 50 at 6. (Sytronics, Inc., B-297346, December 29, 2005) (pdf)

Under FAR subpart 12.6, Streamlined Procedures for Evaluation and Solicitation for Commercial Items, the contracting officer is required to [s]elect the offer that is most advantageous to the Government based on the factors contained in the solicitation, and to [f]ully document the rationale for selection of the successful offeror including discussion of any trade-offs considered. FAR 12.602(c). Although the FAR does not specify what is required for compliance with the mandate that the contracting officer [f]ully document the rationale for the source selection, the fundamental principle of government accountability dictates that an agency maintain a record adequate to allow for meaningful review. Checchi and Co. Consulting, Inc. , B-285777, Oct. 10, 2000, 2001 CPD 132 at 6; Matrix Intl Logistics, Inc. , B-272388, B-272388.2, Dec. 9, 1996, 97-2 CPD 89 at 5. An agency which fails to adequately document the rationale for its source selection, including any trade-offs considered, bears the risk that its determinations will be considered unsupported, and that absent such support, our Office may lack a basis to find that the agency had a reasonable basis for its determinations. Matrix Intl Logistics, Inc. , supra ; see Universal Bldg. Maint., Inc. , B-282456, July15, 1999, 99-2 CPD 32 at 5.

Here, the contemporaneous record of the evaluation of the five quotations and the agencys source selection consists of a 1 page evaluation determination memorandum, and a matrix setting forth the past performance ratings of the vendors as reported by their respective references. We find that these documents fail to adequately explain the basis for the agencys source selection or any trade-offs the agency considered in selecting B&Es lower-priced quotation for award.

The evaluation determination memorandum provides, with regard to three of the vendors, including Tiger, only that all three received favorable past performance ratings. However, the past performance matrix demonstrates that Tigers references uniformly rated Tigers past performance as excellent overall, while one of the other vendors received mostly good past performance ratings, and the other vendor received one marginal rating. The record does not include any narrative explanation regarding the references ratings of the vendors past performance, or the agencys evaluation of the vendors past performance. In light of the fact that Tigers references gave Tiger significantly higher ratings than the other vendors received from their references, we agree with the protester that the record does not support the evaluation of all of these vendors under the past performance factor as favorable. Additionally, with regard to the source selection decision, the contemporaneous record provides only that [a]ll evaluation factors were met by all proposals submitted, and that because [p]rice is the most important factor . . . B&E Management appears to be the apparent successful offeror. Evaluation Determination at 1. These statements fail to adequately explain whether and on what basis the agency determined that the price advantage associated with B&Es quotation outweighed Tigers apparent advantage under the past performance factor. Indeed, given the statement in the record that [a]ll evaluation factors were met by all proposals submitted, it appears that the agency may have made award to B&E as the vendor submitting the low-priced, technically acceptable quotation, thereby abandoning the solicitations stated best value approach to selecting the awardee. See Johnson Controls World Servs., Inc.; Meridian Mgmt. Corp. , B281287.5 et al. , June 21, 1999, 2001 CPD 3 at3-4 (an agency must conduct the evaluation in accordance with the terms of the solicitation; it does not have discretion to announce in the solicitation that one evaluation scheme will be used and then follow another in the actual evaluation). In sum, the record here does not adequately explain the bases for the agency's source selection or any trade-offs the agency considered in selecting B&Es lower-priced quote for award, and we sustain the protest on this basis. (Tiger Enterprises, Inc., B-293951, July 26, 2004) (pdf)

Here, the RFP technical evaluation criterion required offerors to provide “a technical description of the items being offered in sufficient detail to evaluate compliance with the requirements in the solicitation.”  This is the specific streamlined language that FAR Part 12 references for use as the technical evaluation criterion in a negotiated solicitation for a commercial item.  FAR § 12.301(b)(1).  Consistent with FAR § 12.602(b), the RFP evaluation provision at issue here does not specify predetermined evaluation subfactors; the nine items which the protester posits as the evaluation subfactors are a list of the data that offerors were required to submit, as applicable, in conjunction with their technical descriptions, to enable the agency to perform a technical evaluation.  In this regard, the first such required data item was “[c]oncept drawings of buoy, anchoring, and platform systems showing major components and their configuration.”  RFP § 14(a)(1). 
The solicitation describes the item's intended use in detail.  The statement of work includes the government's performance requirements for the OMS, among which are: “The systems shall be small and light enough to be easily towed from the ship into atoll lagoons and deployed with the use of small boats (5-7m).  Offerors are encouraged to design systems that are as small and unobtrusive as possible. . . . The vendor shall incorporate structural components and provide any associated packaging, bracing and/or apparatus necessary to safely handle each monitoring station and anchor assembly during dockside operations, ship loading/unloading, transit to remote [P]acific islands, and towing to the final mooring location.”  RFP attach. 1, at 3,6.  The RFP further states that:  “Offerors are encouraged to implement hardware appropriate for the conditions that the instruments are expected to encounter.  Ease of deployment by field personnel should also be considered.”  RFP amend. 1, at 2.  (InterOcean Systems, Inc., B-290916, October 8, 2002)  (pdf)

We recognize that CICA exempts solicitations in procurements using simplified procedures from the requirement that the relative importance of evaluation factors be disclosed. 10 U.S.C. sect. 2305(a)(2). Moreover, we are sensitive to the fact that the thrust of FAR parts 12 and 13 is to avoid the use of procedures that constrict and complicate the acquisition process, and that FAR sect.. 12.602(a) and 13.106-1(a)(2) do not, on their face, limit a contracting officer's discretion to disclose, or not disclose, the relative weight of evaluation criteria in a commercial item procurement conducted using simplified procedures. Nonetheless, basic principles of fair play are a touchstone of the federal procurement system, and those principles bound even broad grants of agency discretion. See Intellectual Properties, Inc., supra. In addition, even when using simplified procedures--and before them, when using small purchase procedures--federal procurements must be conducted with the concern for a fair and equitable contest that is inherent in any competition. Discount Mach. and Equip., Inc., B-220949, Feb. 25, 1986, 86-1 CPD para. 193 at 3.

Here, where the agency required the commercial offerors to prepare detailed proposals addressing unique government requirements, withholding the relative weight of evaluation factors denied the offerors one of the basic tools used to develop the written, detailed proposals called for in the solicitation. The failure to disclose was particularly unfair here because of the contrast between the indications in the RFP that past performance would be a significant evaluation factor, and the agency's actual intent to make it, by far, the least important one (worth only one quarter of the second-least important factor). While there are certainly circumstances in which agencies need not disclose the relative weight of evaluation factors when conducting a simplified acquisition, this procurement, in our view, is not one of them. Given these circumstances, we believe that fairness dictated that the Army disclose the relative weight of its evaluation criteria to offerors. See Krygoski Constr. Co., Inc. v. United States, 94 F.3d 1537, 1543 (Fed. Cir. 1996), cert. denied, 520 U.S. 1210 (1997) (the overarching principle codified in the Competition in Contracting Act is that agencies provide impartial, fair, and equitable treatment for each contractor); Dubinsky v. United States, 43 Fed. Cl. 243, 259 (1999) (making offerors aware of the rules of the game in which they seek to participate is fundamental to fairness and open competition).  (Finlen Complex, Inc., B-288280, October 10, 2001)

Comptroller General - Listing of Decisions

For the Government For the Protester
InterOcean Systems, Inc., B-290916, October 8, 2002  (pdf) Sytronics, Inc., B-297346, December 29, 2005 (pdf)
  Tiger Enterprises, Inc., B-293951, July 26, 2004 (pdf)
  Finlen Complex, Inc., B-288280, October 10, 2001


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