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FAR 15.304 (d):  Importance of factors and significant subfactors in solicitation

Comptroller General - Key Excerpts

Build-to-Budget

Both Bechtel and PCCP complain that CBY was allowed to propose less than the stated build-to-budget amount, despite the agency's instructions that offerors should use the full amount of the stated budget. PCCP's Protest at 32; Bechtel's Protest at 13-14. Both protesters argue that offerors were not permitted to propose a price lower than $700 million. Alternatively, both argue that the clear instructions on price meant the agency could not give evaluation credit to offerors proposing less than $700 million--as was done here. In this regard, the protesters note the RFP language that informed offerors: (1) that the agency "desires to maximize the best value obtainable for [$700 million]," see RFP amend. 5, Preamble, at 6; (2) that "technical/management approaches that seek to trade off performance in favor of costs below the contract budget amount are not desired and will not be rewarded," id.; (3) that "offerors should strive to propose the best technical/management solution within that budget amount," id.; and (4) that in this competition, the Corps "expect[s] our solutions to utilize the full budget available and not focus on providing a low bid design." Id., Questions & Answers, at 514.

In response, the Corps argues that the "best value" language in the RFP should have been sufficient to notify offerors that they would be permitted to propose less than the budgeted amount. See, e.g., Legal Memorandum, B-405036.2, at 6. In contrast to the protesters' argument that the build-to-budget language constrained the flexibility offerors would have in a typical best-value procurement to trade off price against non-price features, the Corps argues that the build-to-budget language in the RFP "simply reinforces the relative importance that the Government placed on the offerors' technical solutions relative to their proposed prices." Id. Further, the Corps argues that the protesters' interpretation of the solicitation would require the agency to make a source selection decision without consideration of price, in violation of the Competition in Contracting Act of 1984 (CICA). Id. at 5.

It is fundamental that offerors should be advised of the basis on which their proposals will be evaluated. C3, Inc., B-241983, B-241983.2, Mar. 13, 1991, 91-1 CPD para. 279 at 3. CICA requires that contracting agencies set forth in a solicitation all significant evaluation factors and their relative importance. 10 U.S.C. sect. 2305(a)(2)(A)(i), (ii) (2006). This standard is not satisfied where offerors are misled as to the manner in which price will be considered in the evaluation.

Here, the record shows that four of the five phase II offerors initially proposed identical prices--i.e., the $700 million budget figure set out in the RFP. This result, despite the general language in the solicitation informing offerors that award would be made on a best-value basis, appears to be tied to the above-quoted language in the RFP advising offerors that the agency expected them to use the full budgeted amount of $700 million for their projects.

Given the results of the competition--where all of the offerors but CBY submitted initial proposals for exactly $700 million--we think it should have been apparent to the Corps that only CBY understood that it was allowed to propose a price below the stated budget amount. In addition, we note that the Corps conducted discussions with the offerors, and never advised them that offers below the build-to-budget amount would be favorably considered. In fact, the Corps has not rebutted Bechtel's allegation that during discussions, the contracting officer initially informed Bechtel that a lower price would be favorably received, but then, after a recess, expressly retracted that statement, advising Bechtel that the prior statement was made in error. See Bechtel's Protest at 13; Bechtel's Comments at 22.

The Corps contends that, even if offerors were misled, this could not result in competitive prejudice to the protesters, because CBY's proposal was rated technically higher than the protesters'. This argument fails for two reasons. First, as discussed above, we have found unreasonable the evaluation of CBY's proposal under the technical approach factor. Second, both Bechtel and PCCP argue that they would have allocated resources differently and submitted different proposals, had they understood that the agency would allow prices lower than $700 million. See Bechtel's Protest at 24; id. at Exh. 3, Declaration of Bechtel's Operations Mgr., at 2; Bechtel's Comments at 24; PCCP's Comments at 37; PCCP's Reply to Agency's Request for Dismissal, Exh. 1, Declaration of PCCP's Proposal Manager, at 2.

In sum, we find that offerors were misled as to how price would be considered in this procurement and recommend that the agency amend the solicitation to clarify this matter.  (PCCP Constructors, JV; Bechtel Infrastructure Corporation, B-405036; B-405036.2; B-405036.3; B-405036.4; B-405036.5; B-405036.6, August 4, 2011)  (pdf)
 

RCL asserts that any consideration by the Air Force of the relative amount of an offeror's government contracting experience was improper because the stated evaluation criteria did not expressly include this consideration. This argument is without merit. While solicitations must identify the evaluation factors and significant subfactors, they are not required to identify all areas of each that might be taken into account, provided that any unidentified areas are reasonably related to or encompassed by the stated criteria. Eomax Corp., B-311391, June 23, 2008, 2008 CPD para. 130 at 3; MCA Research Corp., B‑278268.2, Apr. 10, 1998, 98‑1 CPD para. 129 at 8. Here, as noted above, the Evaluation Basis for Award section of the RFP provided with respect to the stated basis for the relevancy ratings that "'magnitude of effort and complexities' in the above definitions denotes not only technical features and characteristics but also programmatic and logistical considerations including but not limited to quantities produced, dollar values, type of contract, length of effort, type and complexity of data provided, etc." RFP, Evaluation Basis for Award, sect. (b). We think the references in this language to "programmatic and logistical considerations," as well as to "type of contract," were sufficient to encompass consideration of whether an offeror had experience performing government contracts. See Aviation Constructors, Inc., B-244794, Nov. 12, 1991, 91-2 CPD para. 448 at 5. Indeed, the reported difficulties and steep learning curve that RCL initially encountered on its only referenced government contract as a result of its inexperience with government contracting demonstrate a valid need for the agency to consider the extent of government contracting experience.

RCL maintains that the SSA's reference to Melton's 10 years of government contracting experience reflects an evaluation inconsistent with the RFP's 3-year relevance period, and inconsistent with the agency's refusal to consider one of RCL's contracts--a $17.5 million, 7-year FedEx contract for the remanufacture of tow tractors and loaders (No. 97-1028). This argument is without merit. The agency notes that performance on one of the contracts listed by Melton, a contract determined to be very relevant, commenced in January 1998 and continued until October 2004. Agency Legal Memorandum at 4-5. Since performance under this contract continued into the 3‑year relevancy period (measured from the August 21, 2007 RFP issuance), under the terms of the solicitation, the contract was eligible for consideration in the past performance evaluation. The SSA's reference to 10 years of government contracting experience therefore was reasonable. As for RCL's FedEx contract No. 97-1028, the agency determined that it was not relevant because RCL's proposal indicated that the contract ended on June 31, 2004, more than 3 years prior to the issuance of the solicitation; the contract thus fell outside the 3-year relevance period established by the RFP, and the agency properly declined to consider it. RFP, Proposal Requirements, sections (c)(1), (c)(3); RCL Proposal Contracts Spreadsheet.  (RCL Components, Inc., B-400175, August 19, 2008)  (pdf)
 


PWC asserts that the solicitation does not adequately describe the basis for award. As noted above, the solicitation divided the requirement into two zones--Zone 1 with an estimated total value of $7.85 billion and Zone 2 with an estimated value of $1.58 billion--with the stated intent to award each zone to a different contractor. Specifically, the RFP provided as follows:

The Government intends to make two awards, one per zone. The intent is to have two different contractors, one for each of the separate zones. In order to ensure that two sources are available and to ensure the continuous availability of reliable sources of supplies, the Government reserves the right to exclude, under the authority of FAR 6.202, the awardee under one of these zones from being eligible for award under the other zone. However, [the] Government reserves the right to make one award for both zones, as necessary to support both zones if it is in the government's best interest.

RFP at 68. PWC asserts that the solicitation improperly fails to set forth the basis for determining which zone an offeror will be awarded in the event that its proposal is found to be most advantageous for both zones.

The Competition in Contracting Act of 1984 (CICA) requires that solicitations "at a minimum" include "a statement of--(i) all significant factors and significant subfactors which the head of the agency reasonably expects to consider . . . ; [and] (ii) the relative importance assigned to each of those factors and subfactors . . . ." 10 U.S.C. sect. 2305(a)(2)(A) (2006).[6] Here, the solicitation generally provides that the agency will "award a contract resulting from this solicitation to the responsible offeror whose offer conforming to the solicitation will be most advantageous to the Government, price and other factors considered"; lists the six technical and two price evaluation factors that will be considered in determining the "most advantageous" proposal; and lists the considerations--to "ensure that two sources are available and to ensure the continuous availability of reliable sources of supplies"--warranting excluding the offeror selected for award for one zone from award for the other zone. RFP at 68, 171. As noted by the protester, however, the solicitation is silent as to the basis for determining which zone an offeror will be awarded where its proposal is found to be most advantageous for both zones. We think this omission is especially significant here, since the estimated value of one zone is nearly five times greater than the value of the other. In our view, this failure to advise offerors of the factors the agency will apply is inconsistent with the requirement in CICA that agencies identify the bases upon which offerors' proposals will be evaluated. Accordingly, we sustain the protest on this ground.  (PWC Logistics Services Company, B-400660, January 6, 2009)  (pdf)


HTS contends that the agency improperly failed to qualitatively evaluate the offerors’ proposals under technical factor 1, aircraft technical capability, even though the RFP identified it as the most important technical evaluation factor. The agency asserts that the RFP provided that aircraft technical capability would be evaluated on a pass/fail basis, and that it was reasonable to assign all proposals that were rated acceptable or better the same score of two points (acceptable).

Where a dispute exists as to the meaning of solicitation language, we will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all provisions of the solicitation. See Honeywell Regelsysteme GmbH, B-237248, Feb. 2, 1990, 90-1 CPD para. 149 at 5. To be reasonable, an interpretation must be consistent with the solicitation when read as a whole and in a reasonable manner. Id. Here, we conclude that, when taken as a whole, the RFP contemplates the qualitative evaluation of all the technical factors, including factor 1.

As noted above, the solicitation listed all four technical factors and stated that, "when combined, [they were] significantly more important than price." RFP at 189. The solicitation also stated that those four factors were "listed in descending order of importance." Id. The RFP language here is similar to the language at issue in Lithos Restoration, Ltd., B‑247003.2, Apr. 22, 1992, 92-1 CPD para. 379. In that case, the RFP provided that the "combined weight of the technical factors" was more important than price, Lithos Restoration, Ltd., supra at 4, and set forth the technical evaluation factors in descending order of importance. Id. As in Lithos Restoration, Ltd., we think that the RFP here, by listing the four technical factors in descending order of importance and calling for a price/technical trade-off that considered all four factors, clearly contemplated a qualitative evaluation of the technical factors, balanced against price, to determine the offers that are most advantageous to the government. Evaluating proposals under factor 1 on a go/no-go basis, as the agency did, is inconsistent with this announced evaluation scheme because it effectively gives no weight to factor 1 in the trade-off decision and makes the three less important factors the determining factors for award.

The agency argues that making factor 1 a go/no-go criterion does not diminish its importance in the evaluation scheme. We disagree. Assigning all technically acceptable offers the same score for the primary technical factor has essentially the same effect on the evaluation ratings as not ranking the most important factor at all, an action we found improper in Lithos Restoration, Ltd.. Assigning a score of two points to all technically acceptable offers created an evaluation rating floor; all offers would start off with the same points for that factor. This evaluation scheme effectively neutralized the influence of the most important factor and, as noted above, made the evaluation discriminators the three less important technical factors the determining factors for award.  (Helicopter Transport Services LLC, B-400295; B-400295.2, September 29, 2008)  (pdf)


Simplified acquisition procedures are designed to, among other things, reduce administrative expenses, promote efficiency and economy in contracting, and avoid unnecessary burdens for agencies and contractors. FAR sect. 13.002; American Artisan Prods., Inc., B‑293801.2, June 7, 2004, 2004 CPD para. 127 at 3. These procedures provide discretion to contracting officers to use one or more of the evaluation procedures in FAR Parts 14 and 15. See FAR sect. 13.106-2(b); American Artisan Prods., Inc., supra. Although simplified acquisition procedures require that offerors be notified of the basis on which award will be made, they do not as a general matter require that solicitations “state the relative importance assigned to each evaluation factor and subfactor.” FAR sect.13.106‑1(a)(2); cf. Finlen Complex, Inc., B-288280, Oct. 10, 2001, 2001 CPD para. 167 at 8-10 (notwithstanding the statement in the solicitation that simplified acquisition procedures were being used, an agency’s failure to disclose the relative weight of evaluation factors was unreasonable because basic fairness dictated disclosure of the relative weights where the agency required offerors to prepare detailed written proposals addressing unique government requirements and the solicitation otherwise indicated that one factor would be important but in the evaluation the agency treated that factor as the least important one). In contrast, where an acquisition utilizes FAR Part 15 negotiated procedures, FAR sect. 15.304(d) provides that “[a]ll factors and significant subfactors that will affect contract award and their relative importance shall be stated clearly in the solicitation.” We have recognized where a solicitation does not disclose the relative weight of evaluation factors or subfactors in a FAR Part 15 procurement, they should be considered approximately equal in importance or weight. See Foundation Health Fed. Servs., Inc.; Humana Military Healthcare Servs., Inc., B-278189.3; B-278189.4, Feb. 4, 1998, 98-2 CPD para. 51 at 6. Here, nothing in the solicitation provided or otherwise informed offerors that FAR Part 13 simplified acquisition procedures applied, and as indicated above, this procurement was conducted in a manner that was not distinguishable from a negotiated acquisition conducted under the rules set forth in FAR Part 15. That is, detailed proposals were requested, received, and evaluated, discussions were conducted and revised proposals were received and evaluated, followed by a second round of discussions, the submission and evaluation of final proposal revisions, and a best value determination. Contracting Officer’s Statement at 1-4. Given that the RFP on its face did not notify offerors that FAR Part 13 simplified acquisition procedures were being used and otherwise reasonably indicated that the procurement was for a commercial item using FAR Part 15 negotiated procedures, offerors could presume that the Part 13 provisions, which gave the agency the authority not to assign weight to the evaluation subfactors, were not applicable to this procurement, and that the ordinary rules that require the disclosure of the relative weight of factors and subfactors were applicable. See Finlen Complex, Inc., supra. Because of this and because the solicitation was silent as to the relative importance or weight of the 12 subparagraphs constituting the subfactors of the technical capability factor, offerors could reasonably presume that the 12 subfactors were approximately equal in importance or weight. Foundation Health Fed. Servs., Inc.; Humana Military Healthcare Servs., Inc., supra. As conceded by the agency, it is clear from the record that the SSA did in fact consider the 12 subparagraphs to be subfactors of the technical capability factor that were listed in descending order of importance. See Agency Supplemental Report at 4 (agency concedes that the subparagraphs “were not accorded equal weight during the . . . evaluation of Technical Capability,” but “[i]nstead were weighted in descending order of importance”). For example, with regard to Bio‑Rad’s proposal, the SSA noted in determining which proposal represented the best value to the government that Bio‑Rad’s proposal “offered a licensed product that was satisfactory in the primary technical areas of consideration, test turnaround and expediency,” and that “[t]he firm was excellent in retest and inconclusiveness, other primary areas of technical consideration.” The SSA also commented here that “[t]he majority of Bio-Rad’s technical assessments were excellent as well,” but concluded that “given [the proposal’s] assessment of satisfactory in some of the primary areas of technical consideration, I did not assess the overall technical proposal as excellent.” AR, Tab 8, Source Selection Memorandum, at 2. The SSA noted with regard to IDEXX’s proposal as evaluated under the technical capability factor that “[t]he firm offered a licensed product that was satisfactory in the primary technical areas of test turnaround, retest, expediency and inconclusiveness.” The SSA went on to state that, even though IDEXX’s proposal had been assigned a rating of “poor in the sixth area of technical consideration, service, I did not find reason to lower IDEXX’s summary assessment below satisfactory given the technical order of significance.” Id. at 4. Thus, the record shows that the SSA focused on the fact that Bio-Rad’s proposal was rated “satisfactory” under some of what the SSA inaccurately viewed as the most heavily weighted subfactors to justify assigning Bio-Rad’s proposal less than an excellent rating under the technical capability factor, while apparently discounting its strengths under the evaluation subfactors that the SSA believed to be less important. Additionally, in discussing IDEXX’s proposal, the SSA focused on the similarity of IDEXX’s ratings to Bio-Rad’s under what the SSA considered to be the three most important subfactors while attaching less importance to IDEXX’s lower ratings under other subfactors. An agency’s evaluation of proposals and source selection cannot be determined reasonable and consistent with the stated evaluation criteria where the weight applied to the evaluation subfactors differs from that in the solicitation. See ProTech Corp., B-294818, Dec. 30, 2004, 2005 CPD para. 73 at 8; see also Foundation Health Fed. Servs., Inc.; Humana Military Healthcare Servs., Inc., supra. On this record, we find that the fact that the SSA weighted the subfactors of the technical capability factor in descending order of importance in making and justifying the award selection, rather than weighting them equally, as implicitly indicated by the solicitation, has undermined the reasonableness of the agency’s conclusions as to the relative merits of the proposals under this factor, including the conclusion that Bio‑Rad’s proposal merited an overall rating of “good+” and IDEXX’s proposal merited a rating a “satisfactory.” Given this misevaluation, we cannot conclude that the award selection based upon this skewed weighting of the subfactors of the technical capability factor was reasonable. (emphasis added)  (Bio-Rad Laboratories, Inc., B-297553, February 15, 2006) (pdf)


We acknowledge that the evaluation of price or cost in the award of an ID/IQ "umbrella" contract can be challenging, particularly in the procurement of services, because the more meaningful price competition may take place at the time individual task or delivery orders are to be issued. Nonetheless, in our view, the way in which sample tasks are to be evaluated under this solicitation does not satisfy the legal requirement to consider cost to the government. Here, the RFP does not require offerors to propose the transaction and management fees that an awardee will ultimately charge the government under the ID/IQ contract. The agency has not advanced a rationale for not requesting and evaluating binding transaction and management fees from offerors in a manner similar to other ID/IQ umbrella contracts where, for example, fixed hourly rates are requested and evaluated. The agency instead argues that, notwithstanding the lack of binding transaction and management fees, several features of the RFP allow the agency to meaningfully evaluate cost to the government. The agency contends there are sufficient indicia of the reliability of proposed fees because offerors are required to submit explanations for their pricing assumptions, and the agency will evaluate proposals for price realism and reasonableness. Id. at 6-7. We find this argument without merit. Requesting information to support proposed transaction and management fees for the purpose of evaluating price reasonableness and realism presumes that the offerors have proposed fees that will be used during contract performance, a presumption that cannot be made here. Because the sample task pricing is not binding, a price realism and reasonableness analysis based on that pricing provides no meaningful assessment of the likely cost to the government of an offeror's proposal. The agency additionally argues that, because price is the least important of all evaluation factors, "the low relative importance of price in the published evaluation scheme tends to prevent the non-selection of an offeror proposing costs based on its best estimates solely because other offerors propose low prices that they may have not intention of replicating at the task order level." Agency Supplemental Responses, June 17, 2005, at 6. This argument also lacks merit because, no matter what weight is assigned cost or price in an evaluation, as discussed above, the evaluation scheme must provide some reasonable basis for evaluating or comparing the relative costs of offerors' proposals. The MIL Corp. , B-294836, Dec. 30, 2004, 2005 CPD Paragraph 29 at 9-10 . The statutory requirement that cost to the government be considered in the evaluation and selection of proposals for award is not satisfied by the promise that cost or price will be considered later, during the award of individual task orders. S.J. Thomas , supra , at 4; The MIL Corp. , supra , at 9-10. To the contrary, an agency may not eliminate a proposal from consideration for award of an ID/IQ task order contract without taking into account the relative cost of that proposal to the government. S.J. Thomas , supra , at 4; The MIL Corp. , supra , at 9-10. (CW Government Travel, Inc.--Reconsideration; CW Government Travel; B-295530.2; B-295530.3; B-295530.4, July 25, 2005) (pdf)


Furthermore, even the contracting officer’s post-protest trade-off analysis rests upon the incorrect assumption that technical factors were entitled to considerably greater weight than price in determining best value under this solicitation. In this regard, the contracting officer states as follows:

Based on the order of importance of the evaluation factors for an award, technical factors are of paramount consideration; it is clear to the Contracting Officer that the difference in costs did not outweigh Topaz’s technical superiority to Locus.

Contracting Officer’s Statement at 11. This is contrary to our well-settled rule that where, as here, a solicitation fails to specify the relative weights of technical and price factors, it must be presumed that they are of equal weight. Intermagnetics Gen. Corp., B-286596, Jan. 19, 2001, 2001 CPD ¶ 10 at 8, n. 7. (Locus Technology, Inc., B-293012, January 16, 2004)  (pdf)


In a negotiated procurement, the government is not required to award to the lowest priced offeror unless the evaluation criteria specify that price will be the determining factor. D'Wiley's Servs., Inc., B-251912, May 11, 1993, 93-1 CPD ¶ 377 at 3. Here, there was no language in the RFP requiring the government to make an award using price as the determining factor. As indicated by the context, the sentence in section A-18, "[p]rice proposals will be evaluated to determine which proposal offers the lowest price to the government," only places the offerors on notice as to how the agency intended to evaluate the price factor; it did not indicate that price would be the award determinative factor. Moreover, the protester's assertion, that price would become the controlling factor once a competitive range is established, is also essentially contradicted by the agency's response to question No. 105, which informed the offerors that price would not be the "driving factor," and the RFP's statement that price could become paramount if two proposals were deemed to be essentially equal. Furthermore, the RFP's statements that the award would be based on a “trade-off process,” and that the award would be made to an offeror whose proposal was in the “best interests” of the government, considering price and other factors, clearly indicate that price would be balanced against the non‑price factors in determining the awardee.  (Cherokee Information Services, Inc., B-291718, March 3, 2003)  (pdf)  (txt version)


With respect to the Army's contention that since this solicitation, on its face, is identified as a commercial item procurement using simplified acquisition procedures, no further analysis is needed, we disagree. We look to the substance of an agency's actions, rather than the form. In our view, the labeling of a procurement as "simplified" does not absolve the agency from its obligation to treat vendors fairly. See COMARK Fed. Sys., B-278343, B-278343.2, Jan. 20, 1998, 98-1 CPD para. 34 at 4-5 (agency's use of a negotiated procurement approach, rather than a simple Federal Supply Schedule purchase, triggered requirement to provide for a fair and equitable competition). While there is no dispute here that the procurement of meals and locally-available hotel rooms for MEPS applicants appears to fall squarely within the reach of a "commercial item," as that term is defined at FAR sect. 2.101, there is little about the procedures used in this procurement that can reasonably be called simplified. For example, the agency elected to use a request for proposal format that requires the commercial offerors here--hotels, specifically--to prepare proposals addressing five non-price evaluation factors, including one factor, quality control, for which offerors had to develop and submit a unique quality control plan requiring contracting officer approval of plan changes throughout the life of the contract. Upon receipt of offers, agency personnel conducted a full-scale evaluation, inspected offerors' premises, developed consensus scores, and made a written selection recommendation to the MEPS commander, who, in turn, recommended a selection decision to the contracting officer, who, in turn, made and documented the selection. Despite the "simplified" label, this procurement is very similar to any other negotiated acquisition conducted under the rules set forth in FAR part 15. Those rules require that when offerors are asked to prepare detailed proposals, those offerors must be advised of the weight of all factors and significant subfactors that will affect the contract award. FAR sect. 15.304(d). When our Office asked the Army to address why it would want to withhold this basic information from offerors preparing proposals, the agency answered "that revealing the relative importance of factors may result in offerors skewing their proposals to the more important factors." Agency Supp. Report at 7. In addition, the Army argued that revealing the relative weight of factors in the solicitation would hinder the agency's ability to change the weight of those factors during the course of its evaluation. Id. In our view, neither of these considerations is appropriate under the circumstances of this, or any other, procurement, nor are they advisable for the integrity of the public procurement process. 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.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) (pdf)


The agency also states that the single subfactor, bioengineered slope protection, is the key consideration in the overall evaluation of experience, "as it will make or break this project," Agency Report, Tab 7, Evaluation and Award Determination Summary, at 1 (italics in original). Consistent with this statement, bioengineered slope protection, though the term does not appear anywhere in the RFP, is the single-most important technical criterion, carrying more weight in the unstated evaluation plan--40 out of 100 overall capability points--than past performance, which was stated to be the most important evaluation factor, or the weight assigned in the solicitation to the entire experience factor. This is a significant evaluation subfactor that, by statute and regulation, must be clearly stated in the RFP along with its relative importance, even assuming it was considered reasonably related to the general experience factor stated in the RFP. See Kumasi Ltd./Kukawa Ltd., et al., supra, at 6 (subfactor four times more important than reasonably apparent from the RFP must be disclosed in RFP); Devres, Inc., B-224017, Dec. 8, 1986, 86-2 CPD para. 652 at 3 (subfactor worth more than any other technical factor is "significant"); cf. Bulova Techs., LLC, B-281384, B-281384.2, Feb. 3, 1999, 99-1 CPD para. 99, at 7-8 (agencies can properly take into consideration specific, albeit not expressly identified, experience in making qualitative distinctions between competing proposals, so long as the specific experience is logically encompassed by or related to the RFP's requirements and stated basis for evaluation).  (Lloyd H. Kessler, Inc., B-284693, May 24, 2000)


The RFP did not disclose the relative importance of the significant evaluation considerations. Although the solicitation stated that the seven major technical factors were listed in descending order of importance, an offeror could not ascertain from the solicitation the relative weight of each task/subfactor.  (Foundation Health Federal Services, Inc.; Humana Military, B- 278189.3; B-278189.4, February 4, 1998)

Comptroller General - Listing of Decisions

For the Government For the Protester
RCL Components, Inc., B-400175, August 19, 2008 (pdf) PCCP Constructors, JV; Bechtel Infrastructure Corporation, B-405036; B-405036.2; B-405036.3; B-405036.4; B-405036.5; B-405036.6, August 4, 2011  (pdf)
Cherokee Information Services, Inc., B-291718, March 3, 2003  (pdf)  (txt version) PWC Logistics Services Company, B-400660, January 6, 2009  (pdf)
  Helicopter Transport Services LLC, B-400295; B-400295.2, September 29, 2008  (pdf)
  Bio-Rad Laboratories, Inc., B-297553, February 15, 2006 (pdf)
  CW Government Travel, Inc.--Reconsideration; CW Government Travel; B-295530.2; B-295530.3; B-295530.4, July 25, 2005 (pdf)
  Locus Technology, Inc., B-293012, January 16, 2004)  (pdf)
  Finlen Complex, Inc., B-288280, October 10, 2001 (pdf)
  Lloyd H. Kessler, Inc., B-284693, May 24, 2000
  Foundation Health Federal Services, Inc.; Humana Military, B- 278189.3; B-278189.4, February 4, 1998

U. S. Court of Federal Claims - Key Excerpts

TAPE attacks the Army's evaluation scheme in two ways. First, TAPE contends that the solicitation lacked any indication of how the Army would translate its evaluation of each factor and subfactor into adjectival/color ratings. Pl.'s Mot. J. Administrative R. ("TAPE Mot.") 18. Second, TAPE asserts that the entire administrative record is devoid of a "description of how the Government would conduct a comparative analysis of the different offerors." Id. at 18-19. Neither argument has merit. As an initial matter, the court notes that the Army was not required to describe its "rating method" in the solicitation. FAR§15.304(d). Instead, federal regulations require that the Army conduct a "comparative assessment of proposals against all source selection criteria in the solicitation," id.§15.308, document the "relative strengths, deficiencies, significant weaknesses, and risks" of the evaluated proposal, id.§15.305(a), and describe its "rationale for any business judgments and tradeoffs made or relied on," id.§15.308. Thus, to the extent that the rating method described in the Source Selection Plan is consistent with the terms of the solicitation, in that it requires the Army to consider only the factors identified in the solicitation and to afford those factors the weights indicated in the solicitation, the Army has acted within the bounds of the relevant statutes and regulations. See, e.g., Dismas Charities, Inc. v. United States, 61 Fed. Cl. 191, 205-06 (2004) (finding that the scoring scheme set forth in the Source Selection Plan was consistent with the terms of the solicitation and was therefore not arbitrary and capricious). In the instant solicitation, the Army properly described the factors and subfactors it intended to evaluate, indicated the weight it would ascribe each factor and subfactor, and provided that it would evaluate each proposal against the evaluation criteria. The solicitation therefore complied with the relevant regulations.

Further, if the court construes TAPE's arguments as an attack of the development or implementation of the Source Selection Plan, they still fall short. It is well within the Army's discretion to determine how to implement the provisions of the solicitation. See E.W. Bliss Co., 77 F.3d at 449 (indicating that the "minutiae of the procurement process in such matters as technical ratings and the timing of various steps in the procurement" constitute "discretionary determinations of procurement officials that a court will not second guess"). It also bears noting that TAPE has not cited any statute or regulation that the Army violated in using its Source Selection Plan. Accordingly, the court cannot conclude that the Army acted arbitrarily, capriciously, or not in accordance with the law.  (Femme Comp Inc., Technical and Project Engineering, LLC, L-3 Services, Inc., Data Systems Analysts, Inc., and Bearingpoint, Inc., v. U. S. and Savantage Financial Services, Inc., and Booz Allen Hamilton Inc., Nos. 08-409C, 08-419C, 08-432C, 08-454C, and 08-474C, September 30, 2008) (pdf)


A review of the cases cited by the intervenors demonstrates that the Solicitation here is, indeed, less explicit regarding the relative weight of technical versus pricing factors than other solicitations in which the relative weights of these factors has been deemed equal. For example, in CardioMetrix, supra, the GAO afforded technical and price approximately equal weight even though the request for proposals stated that “the [g]overnment is more concerned with obtaining superior technical features than with making an award at the lowest overall price to the [g]overnment.” Id. The GAO came to a similar conclusion in Actus Corp, supra, noting that while the RFP specified the relative weights of technical factors, it did not similarly specify the relative weights of price and technical. Such, of course, is precisely the case here. Thus, this court concludes that under this Solicitation, price and technical factors were to be rated approximately equal. The contracting officer thus did not violate the Solicitation in determining best value here.  (Banknote Corporation of America, Inc., and Guilford Gravure, Inc., v. U. S., Nos. 03-709C, 3-761C, May 9, 2003, Reissued: May 14, 2003) 

U. S. Court of Federal Claims - Listing of Decisions
For the Government For the Protester
Femme Comp Inc., Technical and Project Engineering, LLC, L-3 Services, Inc., Data Systems Analysts, Inc., and Bearingpoint, Inc., v. U. S. and Savantage Financial Services, Inc., and Booz Allen Hamilton Inc., Nos. 08-409C, 08-419C, 08-432C, 08-454C, and 08-474C, September 30, 2008 (pdf)  
Banknote Corporation of America, Inc., and Guilford Gravure, Inc., v. U. S., Nos. 03-709C, 3-761C, May 9, 2003, Reissued: May 14, 2003  (pdf)  

U. S. Court of Appeals for the Federal Circuit - Key Excerpts

The question remains whether the contracting officer’s decision to weigh technical and price factors equally had a rational basis in view of the solicitation’s silence regarding the relationship between the technical and price evaluations. It is well-established that contracting officers have a great deal of discretion in making contract award decisions, particularly when, as here, the contract is to be awarded to the bidder or bidders that will provide the agency with the best value. See TRW, Inc. v. Unisys Corp., 98 F.3d 1325, 1327-28 (Fed. Cir. 1996); E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996); Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d 955, 958-89 (Fed. Cir. 1993). The issue here is whether the contracting officer acted within the scope of that discretion. The trial court cited a number of GAO bid protest cases holding that when “a solicitation indicates that price will be considered, without explicitly indicating the relative weight to be given to price versus technical factors, price and technical considerations will be accorded approximately equal weight and importance in the evaluation.” CardioMetrix, B-258108, 94-2 C.P.D. 191 (1994); see also Logicon RDA, B-252031, 93-2 C.P.D. 179 (1993); B-233384, 89-1 C.P.D. 240 (1989); Actus Corp./Michael O. Hubbard, B-225455, 87-1 C.P.D. 209 (1987). While neither the USPS nor this court is bound by those decisions, we conclude that they provide a reasonable interpretation of a solicitation that does not explicitly state the relative weights of technical and price factors. In view of those decisions, the contracting officer in this case made a reasonable judgment when he considered price and technical to be approximately equal and ultimately concluded that the additional cost of Guilford’s proposal would not offset its strong technical evaluation. (Banknote Corporation of America, Inc. and Guilford Gravure, inc., v. U. S. and Avery Dennison Corporation Security Printing Division, Inc, and Sennett Security Products, LLC, and Ashton-Potter (USA), Ltd., No. 03-5104, April 26, 2004)  (MS Word)
U. S. Court of Appeals for the Federal Circuit - Listing of Decisions
For the Government For the Protester
Banknote Corporation of America, Inc. and Guilford Gravure, inc., v. U. S. and Avery Dennison Corporation Security Printing Division, Inc, and Sennett Security Products, LLC, and Ashton-Potter (USA), Ltd., No. 03-5104, April 26, 2004  (MS Word)  
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