Agency’s [net monetized opportunity cost benefit value] NMOCBV Analysis

First, DynCorp challenges the agency’s use of the NMOCBV analysis in evaluating and comparing the relative technical merit of the competing offerors’ proposals, complaining that application of this analysis constituted an “unstated criterion for higher flight hour availability” that was “completely inconsistent with the solicitation.”[13] Protest at 12. Next, DynCorp complains that the agency’s NMOCBV calculation failed to consider all of the “limiting factors” affecting aircraft use, such as “number of students” and “weather”; accordingly, DynCorp asserts that the agency’s application of the NMOCBV analysis failed to properly consider whether the offerors’ proposals for increased aircraft availability “actually meet the Army’s needs.” Id. at 13-14. Finally, DynCorp asserts that the agency’s evaluation failed to recognize strengths in DynCorp’s proposal that did not increase aircraft availability. Id. at 14.

The agency first responds that, although the solicitation did not specifically refer to the NMOCBV analysis, that analysis was clearly subsumed within the solicitation’s stated evaluation factors, which advised offerors that the agency would evaluate proposed enhancements. The agency further points out that DynCorp was repeatedly advised of the agency’s application of the NMOCBV and the manner in which it was calculated, and that DynCorp incorporated the agency’s methodology into its proposal. Agency’s Memorandum of Law, Oct. 25, 2017, at 16; see AR, Tab 63.6, DynCorp Interim Evaluation, at 35-40, 68-74; Tab 70, DynCorp FPR, at 7, 10, 12, 16. Next, with regard to DynCorp’s assertion that the NMOCBV calculation failed to include all “limiting factors” that could affect aircraft use, the agency responds that the analysis was not a cost/price evaluation tool, but rather a quantification tool the agency employed in comparing the potential benefits offered by the competing technical approaches. Finally, the agency responds that DynCorp’s proposed strengths that did not increase aircraft availability were, in fact, considered in the evaluation and source selection decision, pointing to specific recognition of such strengths in the evaluation record and the source selection decision. See, e.g., AR, Tab 82, SSDD, at 4, 5-6. In short, the agency maintains that its application of the NMOCBV was reasonable and consistent with the terms of the solicitation. We agree.

It is well-established that a procuring agency is in the best position to determine its own needs and the best method for accommodating them, and our Office will not question that determination absent clear evidence that it is unreasonable. See, e.g., Canaveral Maritime, Inc., B-238356.2, July 17, 1990, 90-2 CPD ¶ 41 at 5; New York Wire Co., B‑235821, Sept. 19, 1989, 89-2 CPD ¶ 246 at 1. Further an agency may properly apply a particular evaluation methodology that is not specifically identified in a solicitation where the methodology is rational and consistent with the solicitation’s stated evaluation criteria. See, e.g., Mission Essential Personnel, LLC, B‑410431.9, B-410431.10, Mar. 18, 2015, 2015 CPD ¶ 109 at 9; Bonner Analytical Testing Co., B-409586.2, Aug. 7, 2014, 2014 CPD ¶ 258 at 4. Finally, an agency’s evaluation of proposals competing to meet its needs is generally a matter within the agency’s discretion, and our Office will not reevaluate proposals but rather, will examine the record to determine whether the agency’s judgments were reasonable and consistent with the terms of the solicitation and applicable statutes and regulations. See, e.g., Booz Allen Hamilton, Inc.; Leidos Inc., B-410032.4 et al., Mar. 16, 2015, 2015 CPD ¶ 108 at 5.

Here, the agency’s application of the NMOCBV calculation was reasonably subsumed within the stated evaluation criteria. As noted above, the solicitation specifically advised offerors from the outset that the agency sought enhancements to the solicitation’s requirements. AR, Tab 13, RFP at 322. Further, during discussions, DynCorp was advised of the agency’s application of this quantification tool and the manner in which it was being calculated, and DynCorp incorporated the agency’s methodology into its own proposal. Further, where, as here, the agency was using the NMOCBV analysis to assist in assessing technical superiority, we find nothing unreasonable in the agency’s consideration of the potential benefits associated with additional aircraft availability without also incorporating all of the variable and/or “limiting factors” that could potentially affect the proposed enhancement and/or the agency’s use of the increased availability. Accordingly, DynCorp’s assertions that the agency applied an unstated evaluation factor and that the agency’s evaluation failed to reasonably consider whether increased availability “meet[s] the Army’s needs” are without merit. Finally, DynCorp’s assertion that the agency failed to recognize strengths in DynCorp’s proposal that did not lead to increased aircraft availability is contrary to the evaluation record. For example, the agency specifically recognized that DynCorp’s “Data Driven Decision Making” approach was a proposal strength, even though that approach did not yield any monetization, and the SSA stated: “not all strengths had a flight hour impact; nonetheless, the strengths were still considered in the trade-off analysis.” AR, Tab 82, SSDD, at 4, 5-6. DynCorp’s challenges to the agency’s use of the NMOCBV analysis in evaluating technical proposals are denied.  (DynCorp International LLC B-415349: Jan 3, 2018)

The protesters raise several challenges to the terms of the solicitation. The primary challenge raised by Sevatec, InfoReliance, and B&E concerns the propriety of the overall evaluation scheme. In this regard, the protesters assert that the agency’s evaluation scheme fails to comply with the Competition in Contracting Act (CICA), 41 U.S.C. § 3306(c)(1)(B), which states that “cost or price . . . must be considered in the evaluation of proposals.” The protesters allege that a price evaluation consisting of a determination that a price is “fair and reasonable,” does not constitute a meaningful consideration of price. The protesters further allege that the agency’s evaluation scheme does not meaningfully consider price because the agency’s evaluation does not consider the price of those offers with technical scores that fall below the top 60.

Our Office has not previously considered the question of whether an agency may properly structure a solicitation using a “highest technically rated [ ] with a fair and reasonable price” evaluation scheme. Based on the arguments presented by protesters and our review of the relevant statutes and regulations we find that the protesters have not established that GSA’s source selection process, as defined by this solicitation, is improper.

Highest Technically Rated Source Selection Process

As an initial matter, we note that the Federal Acquisition Regulation (FAR) does not expressly identify a “highest technically rated [ ] with a fair and reasonable price” type evaluation scheme as reflected in the agency’s solicitation. In this regard, FAR subpart 15.1, Source Selection Processes and Techniques, specifically provides for a “lowest price technically acceptable” (LPTA) source selection process, and a “tradeoff” process. FAR §§ 15.101-1, 15.101-2. Nevertheless, the FAR explicitly recognizes that these two processes are not the only source selection processes available to the agency, as FAR § 15.100 provides that the two processes are only “some” of the processes available. Further, FAR § 1.102(d) states that the agency:

may assume if a specific strategy, practice, policy, or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order, or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority.

The FAR also specifies a “best value continuum” in FAR § 15.101, which provides that the “less definitive the requirement . . . the more technical or past performance considerations may play a dominant role in the selection.” Section § 15.101‑1(a) of the FAR also states, with regard to the tradeoff selection process, that a tradeoff “is appropriate when it may be in the best interests of the Government to consider award to other than the lowest priced offeror or other than the highest technically rated offeror.” Under this FAR provision, the FAR envisions at least two other source selection processes other than a tradeoff: a process that results in award to the “lowest priced offeror,” and a process that results in award to “the highest technically rated offeror.” We thus find no basis in the FAR to object to a proposed source selection process that contemplates award to the highest technically rated offerors without using a tradeoff process.

Consideration of Price

The protesters allege that the consideration of cost/price in the RFP’s “highest technically rated [ ] with a fair and reasonable price” source selection process violates CICA. We find that, under the circumstances here, CICA does not provide a basis for finding the agency’s approach improper. In this regard, 41 U.S.C. § 3306(c) states that

(c) Evaluation factors

(1) In general. In prescribing the evaluation factors to be included in each solicitation for competitive proposals, an executive agency shall . . .

(B) include cost or price to the Federal Government as an evaluation factor that must be considered in the evaluation of proposals

The protesters argue that our Office has found, citing this statute, that agencies are required to include cost or price as a “significant evaluation factor that must be considered in the evaluation of proposals,” and that a “nominal consideration of price” is not sufficient to have complied with the statute. See Electronic Design, Inc., B‑279662.2 et al., Aug. 31, 1998, 98-2 CPD ¶ 69 at 8 (citing to 10 U.S.C. §§ 2305(a)(2)(A), (a)(3)(A)(ii)). The protesters argue that the RFP’s price evaluation, which only considers whether a top 60 offeror’s price is fair and reasonable, improperly reduces price to a nominal evaluation factor, and is thus inconsistent with prior decisions of our Office. See Kathpal Techs., Inc.; Computer & Hi-Tech Mgmt. Inc., B‑283137.3 et al., Dec. 30, 1999, 2000 CPD ¶ 6 at 9. The protesters further assert that the price evaluation scheme here is improper because, for those offerors whose proposals are not among the 60 highest technically rated, the agency will not conduct any type of price evaluation.

In response to the protester’s contention that the agency is not conducting a meaningful price evaluation of the successful offerors’ proposals by considering whether an offeror’s price is fair and reasonable, the agency asserts that its price evaluation will be “multivariate, detailed, and meaningful.” Supplemental Memorandum of Law (Supp. MOL) (Nov. 18, 2016) at 2. The agency points out that it will

evaluate price for a variety of cost factors, including direct labor rates for thirty‑one categories at four different skill levels. Fairness and reasonableness of those rates are measured against a range for each separate labor category and skill level developed from historical data from the Department of Labor (DOL) Bureau of Statistics (BLS). The government will also separately evaluate the fairness and reasonableness of an Offeror’s fringe benefits, general and administrative costs, overhead, and profit. Moreover, the offerors must provide a narrative explanation regarding the methodology used in computing the direct labor rate composite, the indirect costs, and, if applicable, provisional billing rates and forwarding pricing agreements. . . . Failure to establish fairness and reasonableness on any one of these aspects may result in disqualification for award.

Id. at 2. In response to the protester’s argument that the price evaluation is improper because some offerors will have their proposals eliminated from the competition without their prices being evaluated, the agency argues that those offerors falling below the top 60 are “technically unacceptable,” and that there is nothing improper with an agency excluding a technically unacceptable proposal from consideration without evaluating its price. MOL at 17.

Based on the facts before us, we find nothing improper about the agency’s price evaluation. As explained by the agency, this procurement does not involve a tradeoff and the agency’s price evaluation will consist of determining the fairness and reasonableness of multiple aspects of the highest rated offerors’ proposed rates. Those decisions cited by the protesters where our Office has found that considering only the reasonableness of an offeror’s price proposal is an insufficient consideration of price, involved post-award protests under solicitations that used tradeoff source selection processes, not present here. See e.g. Kathpal Techs., Inc.; Computer & Hi-Tech Mgmt., Inc., supra.

In a tradeoff source selection process, the agency cannot so minimize the impact of price as to make it merely a “nominal evaluation factor” because the essence of the tradeoff process is an evaluation of price in relation to the perceived benefits of an offeror’s proposal. FAR § 15.101-1(c). The solicitation here expressly states that there will be no tradeoffs in the source selection. RFP at 250. Source selection will be made based solely on a “highest technically rated [ ] with a fair and reasonable price” evaluation scheme, with no comparison of an offeror’s price relative to the benefits of the proposal. Id. The relatively low importance of price in an evaluation scheme that does not contemplate tradeoffs, as is the case here, is unobjectionable.

The protesters further assert that, based on our prior decisions, the proposed evaluation scheme is improper because an agency cannot eliminate a technically acceptable proposal from consideration for award without taking into account the relative cost of the proposal to the government, see Kathpal Techs., Inc.; Computer & Hi-Tech Mgmt., Inc., supra at 9. The protesters note that the RFP’s evaluation scheme does not result in the lower-rated proposals (ranked 61st or below) being technically unacceptable; instead, those proposals simply have a lower technical rating. Thus, the protesters argue that it is improper for the agency to use a source selection process that excludes lower-rated, acceptable, and possibly lower-priced proposals from the competition without considering their prices.

While we agree with the protesters that, under this evaluation scheme, offerors below the top 60 will not have necessarily been found technically unacceptable, we nevertheless find nothing improper about the agency’s source selection methodology. The scenarios cited, where our Office found it improper to exclude technically acceptable proposals from the competition without considering price, consisted of post-award protests under solicitations that used tradeoff source selection processes, also not present here. See e.g. Kathpal Techs., Inc.; Computer & Hi-Tech Mgmt., Inc., supra, at 2.

When using a tradeoff selection process, if the agency excludes acceptable offerors without considering an offeror’s price, the agency has failed to conduct the essence of a tradeoff, which requires the agency to consider and trade off offerors’ higher (or lower) prices in relation to the perceived benefits of the proposal. Furthermore, the express language in 41 U.S.C. § 3306(c) states that “[i]n prescribing the evaluation factors to be included in each solicitation for competitive proposals, an executive agency shall . . . include cost or price to the Federal Government as an evaluation factor that must be considered in the evaluation of proposals.” Thus, while not every offeror will have its price evaluated under the proposed evaluation scheme (indeed, every firm ranked 61st or lower), the agency will evaluate the price (or cost) “to the government” of every awardee.

Under the circumstances here, the RFP’s source selection methodology--which only considers the prices of the highest-rated offerors, and considers the prices insofar as they are “fair and reasonable”--conforms with the agency’s requirements to consider price under CICA. Insofar as the proposed source selection process considers the price of every awardee (and rejects those firms that lack fair and reasonable pricing), the agency has satisfied its requirement to consider price to the government.

Mechanical Application of Points

The protesters argue that the source selection process here is improper because the scheme “relies on a mechanical application of point scores,” with no comparison of the offerors’ strengths and weaknesses and no “looking behind” the scores of an offeror’s proposal. B&E Protest at 9. The protesters assert that this evaluation scheme fails to take into consideration offerors that rank below the top 60, but nevertheless offer technical advantages or lower prices. The protesters argue that, under prior decisions of our office, such an evaluation scheme is unreasonable. See West Coast Gen. Corp., B‑411916.2, Dec. 14, 2015, 2015 CPD ¶ 392, at 12.

We disagree. Here, the agency has structured its solicitation such that there are no underlying “strengths” or “weaknesses” to be evaluated. Indeed, the RFP has provided for an “objective” point scoring system, where there will be no tradeoff of proposal benefits relative to the proposed price. In those scenarios where our Office has found the mechanical application of point scores to be unreasonable, this is because the agency was required to conduct a qualitative assessment (i.e., consideration of strengths and weaknesses) of the proposals. As the solicitation here expressly does not envision a qualitative assessment beyond the review and verification of the point scores, we find no basis to sustain the protesters’ challenge to the agency’s source selection process.  (Sevatec, Inc.; InfoReliance Corporation; Enterprise Information Services, Inc.; Buchanan & Edwards, Inc. B-413559.3, B-413559.4, B-413559.6, B-413559.7: Jan 11, 2017)

Patriot Solutions asserts that UNICOR improperly failed to perform a best-value tradeoff as provided in the solicitation, and instead admitted in the debriefing that it converted the procurement to LPTA. Protest at 1-2. UNICOR acknowledges that its debriefing document stated that it selected the lowest-priced, technically acceptable offers, but argues that the debriefing document contained a “typographical error” and that the contracting officer did in fact perform a best-value tradeoff. AR, Memorandum of Law at 5-8. During the course of this protest, the agency contends that because the offers were equally rated, price became the determining factor in the selection decision. Id. at 3.

In reviewing an agency’s source selection decision, we examine the supporting record to determine if it was reasonable and consistent with the solicitation’s evaluation criteria and applicable procurement statutes and regulations.The SI Organization, Inc., B-410496, B-410496.2, Jan. 7, 2015, 2015 CPD ¶ 29 at 14. Where a solicitation provides for a tradeoffbetween the price and non-price factors, even where price is the least important evaluation factor, as here, an agency properly may select a lower-priced, lower-rated proposal if the agency reasonably concludes that the price premium involved in selecting a higher-rated, higher-priced proposal is not justified in light of the acceptable level of technical competence available at a lower price. i4 Now Solutions, Inc., B-412369, Jan. 27, 2016, 2016 CPD ¶ 47 at 15. However, a tradeoff analysis that fails to furnish any explanation as to why a higher-rated proposal does not in fact offer technical advantages or why those technical advantages are not worth a price premium does not satisfy the requirement for a documented tradeoff rationale, particularly where, as here, price is secondary to technical considerations under the RFP’s evaluation scheme. Blue Rock Structures, Inc., B-293134, Feb. 6, 2004, 2004 CPD ¶ 63 at 6; Universal Building Maintenance, Inc., B-282456, July 15, 1999, 99-2 CPD 32 at 4.

Despite the agency’s insistence that the debriefing document included a typographical error indicating that selection was made on a LPTA basis, the contemporaneous record does not support this contention. In both award decision memoranda, the contracting officer states that because “past performance and technical ratings are acceptable among the evaluated offerors, price became the determining factor. . . . No Trade-Offs were used.” AR, Tab 1, Award Decision Memo dated August 15, 2016, at 4; AR, Tab 2, Award Decision Memo dated September 1, 2016, at 4. The agency protest official states in her decision: “As past performance and technical ratings were equal among the evaluated offerors, however, price became the determining factor.” AR, Tab 4, Agency Protest Decision, at 1.

With respect to experience, evaluated as part of past performance, Patriot Solutions received a rating of more relevant for its experience, a rating that is higher than the rating of relevant assigned to Wonder State Box Company, the awardee for group 1. AR, Tab 2, Award Decision Memo dated September 1, 2016, at 2-3. Specifically, Patriot Solutions received a rating of more relevant because it is the incumbent. Id. at 2. Wonder State received a rating of relevant because it has past experience with government contracts, including UNICOR. Id. at 2. To that end, the RFP explicitly stated: “More relevant past performance will be considered performance with less risk potential to the agency.” RFP at 20.

By treating all offerors as acceptable, without any comparative evaluation, the agency effectively negated any potential advantage in past performance that Patriot Solutions’ proposal had over the others. See Technical Support Services, Inc., B-279665, B-279665.2, July 8, 1998, 98-2 CPD ¶ 26 (protest sustained where agency disregarded RFP’s best-value scheme and awarded to offeror on LPTA basis). Here, if a tradeoff analysis had been performed, UNICOR might reasonably have determined that Patriot Solutions’ more relevant experience warranted payment of Patriot Solutions’ higher proposed price. Competitive prejudice is an essential element of a viable protest; we resolve any doubts regarding prejudice in favor of a protester since a reasonable possibility of prejudice is a sufficient basis to sustain a protest. Intelsat General Corp., B-412097, B-412097.2, Dec. 23, 2015, 2016 CPD ¶ 30 at 19-20. On the record before us, we find a reasonable probability that the protester was prejudiced by the agency’s failure to follow the solicitation and sustain the protest.  (Patriot Solutions, LLC B-413779: Dec 22, 2016)

WWC maintains that the Navy is improperly using a lowest-priced, technically-acceptable (LPTA) evaluation scheme to obtain the required services. WWC argues that the activities to be performed under the RFQ--creating drafts of new work procedures and gathering and analyzing data--are not the kind of activities that are deemed appropriate in Defense Department directives and memoranda concerning the use of LPTA. WWC contends that the work to be performed is complex, specific to the Navy, and requires the exercise of judgment, and thus an LPTA evaluation scheme is not appropriate. WWC also contends that the Navy’s prior use of LPTA has resulted in the selection of vendors that could not provide qualified personnel in the timely manner. Protest at 3.

A contracting agency has the discretion to determine its needs and the best method to accommodate them, and we will not question an agency’s determination of its needs unless that determination has no reasonable basis. See Womack Mach. Supply Co., B-407990, May 3, 2013, 2013 CPD ¶ 117 at 3. Disagreement with the agency’s judgment concerning the agency’s needs and how to accommodate them does not show that the agency’s judgment is unreasonable. Grant Thornton, LLP, B-408464, Sept. 25, 2013, 2013 CPD ¶ 238 at 5.

The Navy states that the work is routine administrative and analytical work that does not require highly specialized knowledge or extensive experience, such as creating drafts; reviewing agency instructions, financial and other data, and performance metrics; developing a handbook and tracking tool; and preparing reports from templates. Contracting Officer’s Statement at 2. The agency acknowledges that some past procurements have experienced difficulties, but states that contractors other than WWC have successfully provided analyst services for the Fleet Logistics Center under an LPTA evaluation scheme. Id. at 1. The Navy also states that the RFQ requires resumes, contingency hire letters, and past performance information, that will allow the agency to address the problems that WWC claims resulted from using LPTA in the past. Agency Report (AR) Legal Memorandum at 6.

In our view, the protester has not shown that the agency’s judgment is unreasonable. The solicitation appears to address the potential for a vendor’s inability to supply qualified individuals by requiring resumes that demonstrate the necessary educational and experience requirements, as well as some type of commitment on the part of proposed analyst. See RFQ at 7, 17. Similarly, the solicitation requires each vendor to provide past performance information on contracts similar in scope, magnitude, and complexity. To the extent the protester argues that the Navy has not entered negative past performance information related into the Contractor Performance Assessment Reporting System (CPARS), a firm’s performance of a contract is a matter of contract administration that is not for our review. 4 C.F.R. § 21.5(a); see ProActive Techs., Inc.; CymSTAR Servs., LLC, B‑412957.5 et al., Aug. 23, 2016, 2016 CPD ¶ 244 at 11 n.6 (contents of past performance ratings are matters of contract administration).

With respect to the protester’s argument that tasks to be performed under the resulting contract are inappropriate for contract award based on an LPTA evaluation scheme, we find no basis to sustain the protest. The RFQ indicates that the work supports the administrative and business operations of the Fleet Logistics Center, which the Navy states are not complex. For example, as discussed above, the PWS requires the vendor to update existing documents, gather and analyze data related to administrative functions such as staffing, training, and compliance requirements; and prepare briefings. See PWS at 5-7. Although WWC disagrees with the agency’s characterization, none of the information provided by the protester demonstrates that the agency’s judgment is unreasonable. Finally, to the extent that WWC argues that the Navy is not complying with Defense Department directives and memoranda, these documents are internal agency policy, rather than mandatory procurement regulations; accordingly, the Navy’s compliance with these policies is not subject to our review. Grant Thornton, LLP, supra, at 5 n.4.  (Wittenberg Weiner Consulting, LLC B-413460: Oct 31, 2016)

WWC argues that the 6-month period of performance is unreasonable given the long-term nature of the requirement and will substantially hurt the agency’s mission because it provides insufficient time to place personnel in-country, transition the work, and begin working effectively.[6] Protester Comments at 7.

The Navy states that, based on discussions with the Commander, Navy Region Europe and Southwest Asia liaison concerning near and long term requirements for analyst services, the contracting officer determined that a 6-month period of performance will give it time to develop a longer term solution for analyst services that would be competed among the more than 2,200 vendors under the General Services Administration’s MOBIS schedule. The Navy further stated that such a long-term solution based on a greater scope of competition than the current BPA holders would provide the services on a more cost-effective basis. Agency Report (AR) Legal Memorandum at 6-7.

The protester has not demonstrated that the agency’s judgment is unreasonable. Here, the Navy chose a 6-month period of performance for the BPA calls to allow time to develop a solicitation for a longer period of performance that would be competed among a larger pool of vendors. AR at 7. Since the purpose of our bid protest function is to ensure that agencies obtain full and open competition to the maximum extent practicable, we will generally favor otherwise proper actions--like this one--which are taken to increase competition. Northrop Grumman Tech. Servs., Inc., B-286012; B-286012.2, Nov. 1, 2000, 2000 CPD ¶ 181 at 8. While the protester maintains that the Navy has obtained ample competition from the four BPA holders, the protester’s disagreement with the agency’s judgment concerning the agency’s needs and how to accommodate them does not show that the agency’s judgment is unreasonable. Grant Thornton, LLP, B-408464, Sept. 25, 2013, 2013 CPD ¶ 238 at 5.  (Wittenberg Weiner Consulting, LLC B-413457, B-413458, B-413459: Oct 31, 2016)

Award was to be made to the offeror whose proposal represented the best value to the government, considering price, past performance, and management approach. The technical factors, when combined, were significantly more important than price. RFP at 453. The RFP included an “efficient competition” provision, as follows:

[O]fferors are advised that the Government may not evaluate the technical proposals of all offerors under this RFP. The government will first review the total evaluated price of all proposals received. The technical proposals of those offerors whose pricing is determined by the Contracting Officer to be most competitive may be reviewed prior to, or instead of, other technical proposals received. Based on the initial review of these technical proposals, the government may not evaluate the technical proposals of other offerors, whose total evaluated pricing was higher than that of one already evaluated and already assigned the highest possible technical rating. This would occur when the Contracting Officer determines that any possible technical superiority of an unevaluated (and higher priced) technical proposal, over (a lower priced) one that was already evaluated and assigned the highest possible technical rating, would not warrant any additional price premium.

RFP at 454-455.

DHS received 19 proposals. To determine which proposals were the most competitive in accordance with the “efficient competition” provision, the contracting officer ranked all proposals by the total evaluated price, then considered the mean ($40,501,995) and median ($42,752,035.66) prices, and compared total evaluated prices to the government estimate ($47,217,000) and to the price of the lowest-priced offeror. The contracting officer concluded that the eight proposals offering a total evaluated price of less than $40,500,000 were the most competitive and would be evaluated by the technical evaluation team (TET). Agency Report (AR), Tab 13, Business Memorandum, at 5‑6. COGAR’s proposal was the 11th lowest in price, and therefore was not evaluated.

The table below shows the ranking (from lowest to highest price) and adjectival ratings assigned by the TET:

DISCUSSION

COGAR maintains that the agency’s determination to evaluate only proposals offering prices below $40,500,000 was unreasonable and violated the terms of the efficient competition provision. COGAR states that the prices of six proposals, ranging from the 6th lowest-priced to the 11th lowest-priced,[4] were “virtually identical” and were substantially below the government’s estimates. COGAR argues that given these facts, the agency could not reasonably have determined that only those below the cutoff represented the most competitive proposals. First Supp. Protest at 3-5.

An agency’s method for evaluating the relative merits of competing proposals is a matter within the agency’s discretion, since the agency is responsible for defining its needs and the best method for accommodating them. Advanced Tech. & Research Corp., B-257451.2, Dec. 9, 1994, 94-2 CPD ¶ 230 at 3. Where an evaluation is challenged, our Office will not reevaluate proposals but instead will examine the record to determine whether the agency’s judgment was reasonable and consistent with the stated evaluation criteria and applicable statutes and regulations. Lear Siegler Servs., Inc., Inc., B-280834, B-280834.2, Nov. 25, 1998, 98-2 CPD ¶ 136 at 7. The fact that the protester disagrees with the agency’s judgment does not render the evaluation unreasonable. Crofton Diving Corp., B-289271, Jan. 30, 2002, 2002 CPD ¶ 32 at 10.

The record before us provides no basis to sustain the protest on this ground. The RFP’s efficient competition provision put offerors on notice that, although non-price factors together would be more important than price, the government might not evaluate all technical proposals. The RFP further advised offerors that this could occur if the contracting officer determined that any possible technical advantage of an unevaluated, higher-priced proposal would not warrant an additional price premium over a lower-priced proposal that had been assigned the highest possible technical rating. RFP at 454-455.

As explained above, the contracting officer established an initial pool of proposals to be evaluated based on consideration of median and mean prices, the government estimate, and the percentage by which each total evaluated price exceeded the lowest evaluated price. After reviewing the evaluation results of the technical proposals, the contracting officer determined that, in accordance with the terms of the efficient competition provision, since two proposals received the highest possible adjectival rating, any higher-priced proposal would not offer a technical advantage that would warrant a price premium, and therefore it was unnecessary to evaluate additional proposals. AR, Tab 13, Business Memorandum, at 28. While the agency’s approach might deprive it of receiving a better value at a slightly higher price, we conclude that the agency’s actions implementing the efficient competition provision complied with the terms of the solicitation. The fact that the protester might have chosen a larger pool of proposals to evaluate does not render the agency’s decision not to evaluate additional proposals inconsistent with the solicitation’s terms or unreasonable.  (The COGAR Group, Ltd. B-413004, B-413004.3, B-413004.4: Jul 22, 2016)

PDL, the incumbent contractor, protests the terms of the solicitation. It argues that the use of the lowest-price, technically-acceptable source selection process is not appropriate for this acquisition, and it maintains that the Navy should employ a tradeoff process. The protester also argues that because the inherent risk of unsuccessful contract performance is high, the agency should conduct a comparative assessment of the offerors' past performance. Lastly, the protester contends that the agency has improperly omitted several husbanding services that are provided under an existing contract for husbanding services in Australia.

An agency has the discretion to determine its needs and the best way to meet them. USA Fabrics, Inc., B-295737; B-295737.2, Apr. 19, 2005, 2005 CPD para. 82 at 4. Agency acquisition officials have broad discretion in the selection of the evaluation criteria that will be used in an acquisition, and we will not object to the absence or presence of a particular evaluation criterion so long as the criteria used reasonably relate to the agency's needs in choosing a contractor or contractors that will best serve the government's interest. King Constr. Co. Inc., B-298276, July 17, 2006, 2006 CPD para. 110 at 3.

The record here reflects that the agency reasonably determined that it could meet its needs using a low-priced, technically-acceptable approach to evaluate offers with an acceptable or neutral record of past performance. The contracting officer states that this decision was based on the fact that the requirement was relatively noncomplex, and there was relatively little performance risk. In addition, there was a substantial amount of information provided to the offerors in the solicitation, including estimated quantities for each line item by port. Contracting Officer's Statement at 2. While the protester disagrees with the agency's conclusions, the protester's disagreement does not render the agency's determinations unreasonable.  (PDL Toll, B-402970, August 11, 2010)  (pdf)

The RFP, issued as a service-disabled veteran-owned small business set-aside, sought proposals for the award of a fixed-price contract for construction services, including architectural, mechanical, electrical, utility, fire alarm, and fire protection systems work, and asbestos and lead abatement services. RFP at 1. Offerors were advised that the evaluation and award selection would be “made on the basis of both cost and technical considerations most advantageous to the Government,” that the technical evaluation factors combined (construction management, past performance, and schedule, listed in descending order of importance) were “approximately equal in importance to cost or price,” and that “if the technical proposals are essentially equal, the award will be made on the basis of lowest cost.” Id. at 2-3. Cost/price was to be evaluated “on the basis of its realism and acceptability to the Government.” Id.

In reviewing a protest against an agency’s evaluation of proposals and award, including a tradeoff determination, we examine the record to determine whether the agency’s judgment was reasonable and consistent with the solicitation’s evaluation criteria and applicable statutes and regulations. Ostrom Painting & Sandblasting, Inc., B-285244, July 18, 2000, 2000 CPD para. 132 at 4. Generally, in a negotiated procurement, an agency may properly select a lower-rated, lower-priced proposal where it reasonably concludes that the price premium involved in selecting a higher-rated proposal is not justified in light of the acceptable level of technical competence available at a lower price. Bella Vista Landscaping, Inc., B-291310, Dec. 16, 2002, 2002 CPD para. 217 at 4. A protester’s mere disagreement with the agency’s determinations does not establish that the evaluation or source selection was unreasonable. Weber Cafeteria Servs., Inc., B‑290085.2, June 17, 2002, 2002 CPD para. 99 at 4. Our review of the record here confirms the reasonableness of the agency’s evaluation of the proposals and its tradeoff determination.

(section deleted)

To the extent McGoldrick argues that the agency’s award to SPD on the basis of its lower-rated, lower-priced proposal violates the RFP’s terms, which McGoldrick interprets as permitting award on that basis only if the proposals were essentially equal in technical merit, the protester’s position is based on an unreasonable interpretation of the RFP, since, as stated above, the RFP clearly permitted a tradeoff between equally weighted technical and price factors. See Angel Menendez Envtl. Servs., Inc., supra, at 3-4. The agency reports, and our review of the record confirms, that the contracting officer, as the source selection authority, considered the evaluation narratives and worksheets and found no significant advantages or disadvantages between the proposals to justify the payment of the price premium associated with McGoldrick’s proposal ($1 million), given the level of technical competence available at SPD’s substantially lower price. McGoldrick simply has not provided any persuasive basis to question the reasonableness of the agency’s award to SPD on the basis of its lower-rated, substantially lower-priced proposal.  (McGoldrick Construction Services Corporation, B-310340.3; B-310340.4, May 16, 2008) (pdf)

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.  (DIT-MCO International Corporation, B-311403, June 18, 2008) (pdf)

LEADS challenges the agency’s determination that EIS’s quotation represents the best value to the government, arguing that in selecting EIS’s lower-rated, lower‑priced proposal for award, the agency placed undue emphasis on price and essentially converted the basis for award from a determination of “best value” to one of “lowest-cost, technically acceptable.” Protest at 9, 12. The protester also asserts that the agency’s source selection decision is not adequately documented, and that it misrepresents the relative merits of LEADS’s and EIS’s quotations.  Source selection officials have broad discretion in determining the manner and extent to which they will make use of the technical and cost/price evaluation results; tradeoffs may be made, and the extent that technical superiority may be sacrificed for a cost/price advantage is governed by the test of rationality and consistency with the established evaluation factors. Joppa Maint. Co., Inc., B-281579; B-281579.2, Mar. 2, 1999, 2000 CPD para. 2 at 7. A protester’s mere disagreement with the source selection decision does not show that the source selection was not reasonably based or was otherwise inconsistent with the solicitation’s award language. Financial & Realty Servs., LLC, B-299605.2, Aug. 9, 2007, 2007 CPD para. 161 at 5-6. In addition, our Office has also long recognized that an agency, in making a source selection, may properly conclude that a technical scoring advantage based primarily on incumbency does not indicate an actual technical superiority that would warrant paying a cost premium. EDAW, Inc., B-272884, Nov. 1, 1996, 96-2 CPD para. 213 at 7; Sparta, Inc., B‑228216, Jan. 15, 1988, 88-1 CPD para. 37 at 4.

We disagree with the protester that the agency failed to adequately document its source selection, placed undue emphasis on price in selecting EIS’s quotatation for award, and essentially changed the basis for award from “best value” to “lowest-cost, technically acceptable.” In this regard, the agency’s source selection statement (which totals six pages) provides a summary of each quotation’s strengths and weaknesses, as well as the reasoning for the evaluation ratings received under each of the evaluation factors. The source selection statement continues by comparing the ratings of each of the quotations, providing an overall ranking of the quotations as evaluated under the non-price factors, and provides a table of the evaluated prices and summary of the agency’s review of the prices quoted. The source selection statement accurately acknowledges LEADS’s evaluated technical advantages, but concludes that the protester’s higher technical rating does not outweigh EIS’s price advantage. We find that the agency’s source selection decision is adequately documented, and given the specific price/technical merit tradeoff made in selecting EIS’s quotation for award, see no indication in the record that the agency, in making its source selection, placed undue emphasis on price or made award on a “lowest-cost, technically acceptable” basis.  We also do not agree with the protester that the agency’s source selection decision misrepresents the relative merits of LEADS’s and EIS’s quotations. In this regard, LEADS primarily complains that the statement in the source selection decision that LEADS’s quotation’s higher technical rating under the evaluation factors of experience and transition plan was due to LEADS’s status as the incumbent, which assertedly indicated that the source selection decision failed to reflect the actual advantages of LEADS’s quotation under these factors. Specifically, the protester contends with regard to the experience evaluation factor that its rating of “excellent” was not “merely by virtue of its status as the incumbent,” but was also, for example and as recognized by the evaluators, due to the “relevance, depth and scope of LEADS’ experience.” Protester’s Comments at 5. The protester also argues that its quotation should have been viewed as significantly superior to EIS’s under the experience factor (despite EIS’s “good” rating), given that the evaluators noted that a “chart” provided in EIS’s quotation “referenced vaguely relevant and similar experience in the RFQ.”   Supplemental Protest at 9. We agree with the protester that the agency, in assigning LEADS’s quotation an “excellent” rating under the experience factor, identified numerous strengths with regard to LEADS’s “experience,” and that these strengths are related to the relevance, depth and scope of LEADS’s experience. However, the agency also found that the vast majority of these strengths were in the context of LEADS’s 12-year record of performance as the incumbent contractor. We find no basis in this record to conclude that the agency did not reasonably assess the merits of LEADS’s quotation under this factor.  (LEADS Corporation, B-311002; B-311002.2, March 26, 2008) (pdf)

In any event, the protester’s argument is unpersuasive as it reflects an unreasonable interpretation of the RFP. To be reasonable, an interpretation of solicitation language must be consistent with the solicitation when read as a whole and in a manner that gives effect to all of its provisions. Stabro Labs, Inc., B-256921, Aug. 8, 1994, 94-2 CPD para. 66 at 4. The protester’s interpretation that the RFP does not permit the agency to find that a lower-rated, lower-priced proposal represents the best value to the agency unless the proposals are found to be technically equal, is unreasonable because it renders meaningless the RFP’s clear instruction to all offerors that all technical factors combined were to be approximately equal in importance to price. Contrary to the protester’s position, the solicitation permitted a tradeoff between technical and price factors and did not prohibit an award to an offeror that submitted a lower-rated, lower-priced proposal. (Angel Menendez Environmental Services, Inc., B-310340.2, April 11, 2008) (pdf)

Where, as here, the RFP states a best value evaluation plan--as opposed to selection of the lowest priced, technically acceptable offer--evaluation of proposals is not limited to determining whether a proposal is merely technically acceptable; rather, proposals should be further differentiated to distinguish their relative quality under each stated evaluation factor by considering the degree to which technically acceptable proposals exceed the stated minimum requirements or will better satisfy the agency’s needs. See The MIL Corp., B-294836, Dec. 30, 2004, 2005 CPD para. 29 at 8; Johnson Controls World Servs., Inc.; Meridian Mgmt. Corp., B-281287.5 et al., June 21, 1999, 2001 CPD para. 3 at 8. In fact, we have long stated that evaluation ratings should be merely guides for intelligent decision-making, see Citywide Managing Servs. of Port Washington, Inc., B‑281287.12, B-281287.13, Nov. 15, 2000, 2001 CPD para. 6 at 11, and that therefore evaluators and SSAs should reasonably consider the underlying bases for ratings, including the advantages and disadvantages associated with the specific content of competing proposals, in a manner that is fair and equitable and consistent with the terms of the solicitation. See MD Helicopters, Inc.; AgustaWestland, Inc., B-298502 et al., Oct. 23, 2006, 2006 CPD para. 164 at 15. Indeed, as indicated above, the FAR requires that agencies sufficiently document their judgments, including documenting the relative strengths, deficiencies, significant weakness, and risks supporting their proposal evaluations. See FAR sections 4.801(b), 15.305(a), 15.308; Century Envtl. Hygiene, Inc., supra, at 4. Here, given the nearly complete absence in the record of any assessment of the firms’ different approaches under the mission capability and proposal risk subfactors (as noted above, the SSET did assess Jacobs’s proposed “seamless team” approach and lack of OCIs as proposal strengths, justifying a blue/excellent rating with low risk under the management practices subfactors), we find that the SSET failed to evaluate the firms’ proposals under these subfactors consistent with the RFP, which we find prevented the SSA from meaningfully weighing the relative merits of the offerors’ proposals. In this regard, the SSA indicated in his testimony that it was his practice in making selection decisions to look beyond the color/adjectival ratings in weighing the offerors’ proposals, see Tr. at 323-25, and the contemporaneous record evidences that the SSA attempted to look beyond the adjectival ratings here to ascertain the relative quality of the firms’ technical proposals. See, AR, Tab 50, Memorandum for Record, Jan. 30, 2007. However, we do not find that the SSA was provided with a reasonable opportunity to do so here, given the SSET’s failure to qualitatively assess the merits of the offerors’ proposals, as required by the RFP. See Tr. at 330-39. Accordingly, since the record evidences that the agency did not evaluate the proposals under the mission capability and proposal risk subfactors in a way that reasonably distinguished their relative merits in accordance with the RFP’s evaluation scheme, we sustain the protests.  (Systems Research and Applications Corporation; Booz Allen Hamilton, Inc., B-299818; B-299818.2; B-299818.3; B-299818.4, September 6, 2007) (pdf)

The protester contends that the contracting officer and SSA improperly converted the procurement to one based on low price among technically acceptable offers instead of following the RFP’s provision that technical superiority was to be significantly more important than price. As explained below, we conclude that the record shows that the evaluation and selection decision here were reasonable and consistent with the RFP. Based on the record here, we find the tradeoff determination and award reasonably based. Our review, as discussed further below, confirms not only the SSA’s view of the comparable technical merit of the proposals, but also the reasonableness of the determination that, given the level of technical merit available at a significantly lower price, an award to Crown based on its slightly higher-rated proposal was not warranted. The evaluation record here is clear. As the contracting offficer points out in her analysis of the TEP report, both firms’ proposals presented comparable strengths under each evaluation factor. For instance, under the prior experience factor, where both firms were rated “excellent,” each was credited for extensive experience with HUD and other property closings at similar volumes and in similar geographic areas. For the technical and management factor, both firms met state licensing requirements, provided comprehensive quality control plans, set out detailed work strategies, and have several offices in the area. Given the similarity in the noted strengths for both proposals, we find reasonable the contracting officer’s conclusion that the difference in technical ratings assigned for the factor (“excellent” for Crown and “good” for Lawyers) does not reflect any material difference in technical merit. For past performance, Crown’s proposal was rated “excellent” and Lawyers’ was rated “good.” While there is little explanation of the difference in past performance ratings in the record, our review shows that at least two past performance references rated Lawyers “excellent” under each subfactor. Additionally, while one evaluator apparently noted some negative performance information for the firm, the same evaluator also cited numerous strengths for the firm. For the final technical factor, personnel qualifications, the record also supports the SSA’s conclusion that the two firms’ proposals were comparable in technical merit. Both firms’ staff resumes and biographies showed that all proposed key personnel met or exceeded the RFP’s experience requirements and that the level of effort proposed was satisfactory for successful performance of the work. While Crown was credited (and rated “excellent”) for having personnel committed solely to this project, it is also clear in the evaluation record that Lawyers (rated “good” for the personnel factor) was found to have fully staffed the effort with qualified, experienced personnel, for which its proposal was rated favorably. (Crown Title Corporation, B-298426, September 21, 2006) (pdf)

ATI misunderstands the nature of this acquisition. Where, as here, a solicitation calls for detailed technical proposals and sets forth weighted evaluation criteria that enable the agency to make comparative judgments about the relative merits of competing submissions, the agency properly may rate one submission higher than another based on its exceeding the solicitation’s stated requirements. ManTech Sec. Tech. Corp., B-297133.3, Apr. 24, 2006, 2006 CPD para. 77 at 7; see also Chicago Dryer Co., B-293940, June 30, 2004, 2004 CPD para. 137 at 4 (protest that agency should have selected protester’s technically acceptable, lower-priced proposal over awardee’s technically superior, higher-priced proposal that exceeded solicitation’s minimum requirements was denied where solicitation provided for comparative evaluation of technical proposals, which indicated that qualitative distinction would be made between competing submissions). Here, the record shows that the agency rated Brown’s quotation higher than the protester’s primarily because Brown’s provided several features that exceeded the minimum requirements of the solicitation in ways deemed beneficial to the agency. For example, the record shows that Brown’s test stand had a component that was larger than required under the specifications, which the agency deemed desirable because it would enhance the ease of operating the device. In comparison, ATI’s quotation did little more than reiterate the specifications verbatim; it provided nothing that exceeded the minimum requirements of the RFQ. Since firms were specifically advised that the agency was conducting this acquisition on a best value (as opposed to low price, technically acceptable) basis, there was nothing improper in the agency’s making these qualitative distinctions between the quotations, and selecting the higher-priced Brown quotation as providing the most advantageous product considering price and non-price factors; this is especially so in light of the fact that the RFQ advised firms that the non-price factors were significantly more important than price. (Aviation Technology, Inc., B-298313.2, September 21, 2006) (pdf)

In a competitive procurement under the Federal Supply Schedule program in which the solicitation announced that award would be made on a best value basis and that technical factors were more important than price, the agency improperly selected the awardee to receive the order based upon the awardee's technically acceptable, lowest-priced quote.  (Computer Products, Inc., B-284702, May 24, 2000)