SWR, Inc., B-284075; B-284075.2, February 16, 2000

SWR, Inc., B-284075; B-284075.2, February 16, 2000 TITLE: SWR, Inc., B-284075; B-284075.2, February 16, 2000 BNUMBER: B-284075; B-284075.2 DATE: February 16, 2000 ********************************************************************** SWR, Inc., B-284075; B-284075.2, February 16, 2000 Decision Matter of: SWR, Inc. File: B-284075; B-284075.2 Date: February 16, 2000 Benjamin M. Bowden, Esq., Albrittons, Clifton, Alverson & Moody, for the protester. A. Neil Stroud, Esq., and Julius Rothlein, Esq., U. S. Marine Corps, for the agency. Peter A. Iannicelli, Esq., and Michael R. Golden, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest is sustained where the contracting agency awarded contract on the basis of a proposal that did not conform to several material solicitation requirements. DECISION SWR, Inc. protests the award of a contract to Stephenson's Appliance by the United States Marine Corps pursuant to request for proposals (RFP) No. M6700199R0004. The protester contends that the Corps should have rejected the proposal submitted by Stephenson's Appliance as unacceptable because the proposal did not meet a number of RFP requirements. The protester also contends that the agency's past performance evaluation was unreasonable and that the agency improperly held discussions solely with the awardee. We sustain the protest. Issued on May 20, 1999, the RFP solicited proposals for repair services to appliances (i.e., refrigerators, stoves/ranges, and dishwashers) in family housing units at Camp Lejeune, North Carolina. The RFP contemplated that the services would be performed on a fixed-price per repair call basis for a basic period of 1 year with options for 4 additional years. RFP sect. B. The RFP stated that the contract would be awarded to the offeror whose proposal was determined to be most advantageous after evaluation of "past performance," "technical proposal," and "price" factors, and that a risk assessment would be perfomed as part of the evaluation of each factor. [1] RFP sect. M. The awardee's technical proposal would become part of the contract specifications. RFP sect. L.6.3.1. Four proposals were received by the June 29 closing date. The agency reports that no discussions were held with any offeror but that it twice contacted Stephenson's Appliance by telephone, once for clarification of a portion of its technical proposal and once to address a clerical error in its prices. Supplemental Agency Report at 1-2. After evaluation, each proposal was given an overall adjectival rating for "past performance," "technical," and "risk assessment"; and the total price of each proposal for the basic contract and all four option periods was noted. The two highest rated proposals were submitted by SWR and Stephenson's Appliance; the agency's best value analysis summarized their evaluations as follows: Offeror Past Technical Risk Total Price Performance Evaluation Assessment Evaluation SWR [Deleted] [Deleted] [Deleted] [Deleted] Stephenson's [Deleted] [Deleted] [Deleted] [Deleted] Appliance Based upon this information, the agency determined that, while there was very little difference in the technical capability of these two offerors, Stephenson's Appliance's superior past performance was worth the additional cost of $116,490. Agency Report, Tab F, Evaluation Summary, at 1. Therefore, the contract was awarded to Stephenson's Appliance on October 26. After a debriefing, SWR filed this protest. SWR primarily protests that Stephenson's Appliance's proposal did not meet a number of RFP requirements and therefore the Corps should have rejected it and awarded SWR the contract. Protest at 2-3; Supplemental Protest at 4-5. SWR asserts that, under the guise of obtaining clarification from Stephenson's Appliance about its proposal, the agency conducted discussions, informed the awardee about some of its proposal's shortcomings, and allowed Stephenson's Appliance to supplement its original proposal. Supplemental Protest at 2-3; Protester's Supplemental Comments at 1-2. The protester argues that such discussions gave the awardee a competitive advantage and that, since no discussions were held with SWR, SWR was deprived of an opportunity to address certain adverse information that the Corps considered in the evaluation of SWR on the past performance factor. Protest at 3-4. In a negotiated procurement, all offerors must be provided a common basis for preparation and submission of proposals. CNA Indus. Eng'g, Inc., B-271034, June 7, 1996, 96-1 CPD para. 279 at 4. Any proposal that does not conform to material terms and conditions of the RFP should be considered unacceptable and may not form the basis for an award. Integrated Sys. Group, B-272336, B-272336.2, Sept. 27, 1996, 96-2 CPD para. 144 at 6.