Carter Industries, Inc.

B-270702 Feb 15, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights That is. Higher-priced proposal was reasonable and consistent with the terms of the solicitation. The RFP stated that the award would be made to the responsible offeror whose proposal was deemed to represent the most advantageous proposal to the government. The RFP stated that "[i]f discussions are conducted. Offeror's [sic] will be given an opportunity to address especially unfavorable reports of past performance and the offeror's response. Will be taken into consideration.". The RFP stated that technical evaluation factors were considered more important than price. Technical proposals were evaluated by assigning an adjectival rating of highly acceptable (HA). An offeror's technical proposal was also assigned an overall adjectival rating. View Decision Matter of: Carter Industries, Inc. File: B-270702 Date: February 15, 1996 Where the protester fails to timely protest a defect in the solicitation's initial proposal award provision, that is, the failure of the solicitation to include one of two mandatory alternate clauses which indicate either the agency's intention to conduct discussions prior to making an award or the agency's intention to award without discussions, the agency's decision to award a contract on the basis of initial proposals without discussions to an offeror which submitted a higher technically rated, higher-priced proposal was reasonable and consistent with the terms of the solicitation. Attorneys DECISION Carter Industries, Inc. protests the award of a contract to ORC Industries, Inc. under request for proposals (RFP) No. SPO100-95-R-0148, issued by the Defense Personnel Support Center, Defense Logistics Agency, for quantities of parkas and trousers. Carter argues that the agency improperly awarded the contract on the basis of initial proposals without discussions. We dismiss the protest. The RFP, issued on June 16, 1995, contemplated the award of a firm, fixed-price, indefinite quantity contract for a base period with 2 option periods. The RFP stated that the award would be made to the responsible offeror whose proposal was deemed to represent the most advantageous proposal to the government, technical evaluation factors and price considered. The RFP contained the following technical evaluation factors, listed in descending order of importance: (1) experience/past performance; (2) manufacturing plan; (3) quick response; (4) electronic data interchange; and (5) quality assurance plan. With respect to experience/past performance, the RFP stated that "[i]f discussions are conducted, offeror's [sic] will be given an opportunity to address especially unfavorable reports of past performance and the offeror's response, or lack thereof, will be taken into consideration." The RFP stated that technical evaluation factors were considered more important than price. As reflected in the source selection plan for this procurement, the agency intended to award the contract on the basis of initial proposals without discussions. However, the agency failed to incorporate in the RFP, by marking the appropriate box, the clause at Federal Acquisition Regulation (FAR) Sec. 52.215-16, captioned "Contract Award (Jul 1990) Alternate III (Aug 1991)," which states that "[t]he Government intends to evaluate proposals and award a contract without discussions with offerors. Therefore, each initial offer should contain the offeror's best terms from a cost or price and technical standpoint. However, the Government reserves the right to conduct discussions if later determined by the Contracting Officer to be necessary."[1] Five firms, including Carter and ORC, submitted technical and price proposals by the July 24 amended closing date for receipt of initial proposals. Technical proposals were evaluated by assigning an adjectival rating of highly acceptable (HA), acceptable (A), marginally acceptable (MA), or unacceptable (UA) to each technical evaluation factor. An offeror's technical proposal was also assigned an overall adjectival rating. The technical proposals of Carter and ORC were evaluated as follows: Carter ORC Experience/Past Performance UA A Manufacturing Plan MA A Quick Response MA A Electronic Data Interchange MA HA Quality Assurance Plan A A Overall Rating MA A Carter's price was approximately 1.6 percent less than ORC's price. On November 27, the agency, on the basis of initial proposals without discussions, awarded the contract to ORC whose higher technically rated, higher-priced proposal was determined to represent the most advantageous offer to the government. This protest followed. Carter argues that since the agency did not incorporate in the RFP the clause at FAR Sec. 52.215-16 Alternate III, thereby failing to notify offerors of its intention to award on the basis of initial proposals without discussions, discussions were required prior to making an award. See FAR Sec. 15.610.