In re Toomer
| Decision Date | 29 September 1981 |
| Docket Number | B-201969 |
| Parties | MATTER OF: Edwin G. Toomer |
| Court | Comptroller General of the United States |
DIGEST:
1. Allegations of solicitation improprieties which were apparent from solicitation as issued are untimely when not filed until after closing date for receipt of initial proposals.
2. Agency could reasonably conclude that Service Contract Act does not apply to procurement the primary purpose of which is to secure use of seagoing vessel and incidental purpose is to secure services of captain and two crew members.
3. In procurement for use of seagoing vessel, evaluation of offeror's vessel from recollection of evaluation officials where officials were familiar with vessel from predecessor contract, rather than by physical inspection, is proper where protester does not allege improvement of vessel in interim between completion of contract and new procurement.
4. Award of technical evaluation points for equipment which was not installed on vessel at time proposal was submitted but is readily available to offeror is proper where firm unconditionally promises in proposal to install equipment.
5. Technical evaluation of offeror's research and fishing experience will not be reviewed by GAO absent showing of unreasonableness or inconsistency with established evaluation factors.
6. Where agency does not find any technical deficiencies or weaknesses in proposal, call for best and final offers meets requirement for meaningful discussions.
7. Whether difference in point scores assigned to competing technical proposals indicates actual superiority of one proposal depends on facts and circumstances of each procurement, and is matter primarily for contracting agency's determination.
Edwin G. Toomer protests the award of a contract to John H. Miller under request for proposals (RFP) FSE43-81123-23 issued by the National Oceanic and Atmospheric Administration (NOAA) Department of Commerce. Toomer objects to several RFP provisions, NOAA's failure to request Service Contract Act wage determinations from the Department of Labor to apply to the contract, and NOAA's evaluation of proposals. We conclude that the award was proper.
The RFP is for the charter of a vessel for marine investigations. NOAA received four proposals, three of which it found to be in the competitive range. After final technical evaluation NOAA determined that the proposals of Miller and Toomer were technically superior to that submitted by the third offeror in the competitive range, and technically equal to each other. The RFP provides that when offers receive approximately equal technical ratings, award will be based on the lowest price offered. NOAA concluded that total price of Miller's proposal, including estimated reimbursement for fuel costs and per diem allowance for crew, was $280, 784 and the total price of Toomer's proposal was $288, 110. Therefore, NOAA awarded the contract to Miller.
Toomer alleges that several provisions of the RFP are improper. Toomer contends that the evaluation criteria set out by the RFP are vague and ill-defined and fail to adequately disclose the relative importance of certain evaluation categories. Toomer also argues that the RFP should not require that firms submit information relating to the cost of fuel, a reimbursable item. The protester further complains that certain RFP provisions conflict because they delegate to different NOAA personnel overlapping contract administration functions.
Each of these alleged improprieties was apparent from the face of the solicitation. Our Bid Protest Procedures, 4 C.F.R. Part 21 (1981), require that protests based upon alleged improprieties in a solicitation which are apparent prior to the closing date for receipt of initial proposals must be filed before that date. 4 C.F.R. § 21.2(b)(1). The closing date for receipt of initial proposals was January 13 1981. Toomer did not file a protest with our Office until January 29, 1981. Therefore, we find that these allegations were untimely filed, and they will not be considered.
Toomer points out that although the RFP states that any resultant contract is subject to the Service Contract Act (SCA), 41 U.S.C. § 351 et seq. (1976), NOAA failed to submit to the Department of Labor (DOL) an "SF 98 -Notice of Intention to Make a Service Contract" as required by the Federal Procurement Regulations. The submission of an SF 98 provides DOL with the opportunity to render a wage determination for the services required by a solicitation. Toomer argues that the failure to submit the form precludes award to any offeror.
The record indicates, however, that NOAA did not intend to incorporate the SCA clause. The SCA applies to contracts "to furnish services * * * through the use of service employees." 41 U.S.C. § 351. NOAA determined that the principal purpose of the contemplated contract is not to secure the services of service employees, but rather to secure the use of a vessel; the services of the few contractor personnel to be provided merely are incidental to the furnishing of a vessel. Therefore, NOAA did not submit an SF 98 to DOL.
DOL has the primary responsibility for administering and enforcing the SCA. B. B. Saxon Company, Inc., 57 Comp.Gen. 501 (1978), 78-1 CPD 410. The regulations promulgated by DOL envision that the initial determination as to whether the SCA may apply to a specific procurement will be made by the contracting agency. See 29 C.F.R. § 4.4 (1980); 53 Comp.Gen. 412 (1973). In reviewing these agency determinations, we will uphold the agency's position unless that position is unreasonable. 53 Comp.Gen. 412, supra; A&C Building and Industrial Maintenance Corporation, B-193047, April 13, 1979, 79-1 CPD 265. One way we consider the reasonableness of the agency's determination is to consider whether the agency reasonably should have believed that the procurement might be subject to the SCA. Thus, for example, where the record indicated that the Air Force had no reasonable basis for believing the SCA might apply to a particular procurement prior to the contract award, we did not object to the Air Force's failure to submit an SF 98. 53 Comp.Gen. 412, supra. On the other hand, when the record indicated that the Air Force should have been aware of the SCA's possible applicability, we held that the Air Force was required to submit the SF 98 to DOL and to incorporate in the solicitation whatever wage determination DOL might find to be applicable. B. B. Saxon Company, Inc., supra; Hewes Engineering Company, Inc., B-179501, February 28, 1974, 74-1 CPD 112.
From the record before us, which shows only that NOAA inadvertently included the SCA clause in the RFP and that the technical evaluation encompassed captain and crew experience, we cannot conclude that the determination by NOAA that whatever services might be involved were incidental to the primary purpose of the contract was unreasonable. Consequently, we find no merit to this protest allegation.
The RFP requires all offerors to make their vessels available for inspection. NOAA did not physically inspect Toomer's vessel, but did conduct an on-site inspection of the vessels of the other two offerors in the competitive range. Contracting officials deemed such an inspection unnecessary because they had become familiar with Toomer's vessel during the negotiation and performance of the predecessor contract held by Toomer. Thus, the "inspection" of Toomer's vessel in effect was conducted by memory rather than by physical observation.
Toomer alleges that reliance on the recollections of Government personnel for inspection was improper. Toomer contends that he was prejudiced by the failure to physically inspect since his preliminary technical evaluation score of 51 was lowered after the inspection process to a final score of 49.
We do not believe that Toomer has demonstrated that NOAA's actions were improper or that he was prejudiced. The record shows that during the negotiation and performance of the previous contract the NOAA evaluators became very familiar with Toomer's vessel. Toomer does not allege that in the interim between the completion of the predecessor contract and the evaluation period he improved the condition or capabilities of the vessel or installed any equipment which would affirmatively affect the outcome of the technical evaluation. Nor does Toomer, after an opportunity to examine documents generated by NOAA during the course of the technical evaluation, allege that the recollections of the contracting officials were inaccurate in any specific way.
The RFP does not promise each offeror an inspection as Toomer suggests. The RFP merely requires that each offeror make its vessel available if NOAA desired to inspect it. We know of no requirement that a procuring activity inspect facilities offered in response to an RFP. Rather, the procuring activity simply must treat all offerors fairly and equally. See Servo Corporation of America, B-193240, May 29, 1979 79-1 CPD 380. Moreover, the fact that Toomer's final score was two points lower than the initial score does not in itself, constitute a basis upon which to question the evaluation. The purpose of the initial evaluation is merely to determine which offerors are in the competitive range. The procuring activity is not bound to fix each offeror's score at that level. See Buffalo Organization for Social and Technological Innovation, Inc., B-196279, February 7, 1980, 80-1 CPD 107. We believe it was within NOAA's discretion to conclude, after further analysis and consideration, that a score of 49 points was a more accurate assessment of Toomer's proposal than was 51 points. We also point out that Miller's initial score was also...
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