Date: August 22, 1989
P.S. Protest No. 89-27
SERVICE AMERICA CORPORATION
Solicitation No. 249990-89-A-0054
DECISION
Service America Corporation protests the award of a contract to Canteen Company for vending food services under Solicitation No. 249990-89-A-0054. The protester questions the fairness of the evaluation of its proposal.
Solicitation No. 24990-89-A-0054 was issued by the Woburn, Massachusetts, Procurement and Materiel Management Service Office on January 16, 1989, with an offer due date of February 27. The solicitation which listed the evaluation factors on P.S. Form 7291.
Of the proposals received, Canteen Company was given the highest evaluated score. Service America received the second highest score. The rankings were as follows:
Factor Maximum Service Canteen
Score America CompanyReputation, Experience, 200 126 156
and Resources
Sanitation Practices 150 100 118
Personnel Staffing and 175 123 153
Management
Menu Prices, Portion Sizes, 175 175 1 144
and Management Controls
Menu Variety 175 150 159
Budget (pro forma), 125 98 103
Accounting System, and
Controls
Satellite Vending 100 100 67
TOTAL 1100 872 900
Service America protested the award, based upon information received at its debriefing, alleging that in those categories where the competitors were scored according to a formula, Service America was granted the highest possible number of points. In the other categories, which the protester calls "discretionary", the protester asserts that, although the members of the evaluation committee "had no negative comments", it was awarded lower scores than Canteen. The protester broadly implies that the evaluation committee was biased.
The contracting officer states that, while Service America was given the maximum number of points in two categories, it scored lower than Canteen in the other categories. He states that there is no basis for any objection to the evaluation. The contracting officer contends that the lack of negative comments on the part of the evaluation committee indicates that Service America's offer was merely satisfactory. It does not mean that the evaluation committee found no fault with Service America's proposal; they did not memorialize the facts which downgraded the proposal. The evaluation committee found Canteen's proposal to
be superior to that of Service America in certain categories. The granting of Canteen a higher score is not inconsistent with no negative comments about Service America's proposal.
In a conference held with this office, the protester emphasized that the contracting officer adjusted upward its score in the category "Menu Prices, Portion Sizes, and Management Controls" to the maximum points allowed, while Canteen's score was unchanged. It contends that as the contracting officer adjusted Service America's score upward, Canteen's score should have been decreased.
Canteen submitted comments in response to the protest. Their thrust is that the criteria used to evaluate the proposals were applied fairly and consistently to all offerors, and that these "tried and proven" evaluation criteria should not be re-examined.
Discussion
It is well settled that the evaluation or scoring of proposals is the procuring activity's responsibility, and procuring officials have a reasonable degree of discretion in that regard. 2 Apec Technology, Limited, P.S. Protest No. 88-23, June 30, 1988; Cohlmia Airline, Inc., P.S. Protest No. 87-118, April 13, 1988; see also Falcon Systems, Inc., et al., P.S. Protest Nos. 86-31, 86-33, and 86-35, July 25, 1986; F. R. and Lee Mackercher, P.S. Protest No. 85-45, September 17, 1985. Our review of the technical evaluation of proposals is limited, Computer Systems & Resources, Inc., P.S. Protest No. 86-04, March 27, 1986; Chamberlain Manufacturing Corporation, P.S. Protest No. 85-83, February 14, 1986, and we will not substitute our judgment for that of the evaluators or disturb the evaluation unless it is shown to be arbitrary or in violation of procurement regulations. Canteen Company, P.S. Protest No. 89-15, March 22, 1989; Evergreen International Airlines, Inc., P.S. Protest No. 86-07, May 5, 1986; H & B Telephone, Systems, P.S. Protest No. 83-61, February 6, 1984. The protester bears the burden of proof in this regard. Apec Technology Limited, supra.
While the record evidences disagreement between Service America and the contracting officer concerning its evaluation, it does not provide a basis upon which we may conclude that the evaluation of the protester's proposal was arbitrary or unreasonable. Cf. Apec Technology Limited, supra; Concepts Office Furnishings, Inc., P.S. Protest No. 85-59, November 18, 1985; Garden State Copy Company, P.S. Protest No. 84-31, July 5, 1984.
Service America's contention is that since the evaluators did not state negative comments, its offer in the categories in which it did not receive the maximum score must have been at least as good as the awardee's. Our review of the worksheets of the evaluation committee reveals that the numerical scores assigned to Canteen are supported by the evaluators' comments. 3
Finally, Service America broadly alleges that the evaluation committee was biased against it. To prevail in this regard, the protester must show, by sufficient affirmative evidence, Good & Good Contractor, P.S. Protest No. 81-16, August 27, 1981, virtually irrefutable proof that the evaluators had a specific and malicious intent to harm the protester. Prejudicial motives will not be attributed to evaluators on the basis of inference or supposition. OSM Corporation, P.S. Protest No. 88-36, August 18, 1988; I. C., Inc., P.S. Protest No. 86-06, April 25, 1986. Here, the protester's allegations consist merely of its own view of the evaluation of its proposal, and are insufficient to meet the required burden of proof of impermissible bias.
The determination of the evaluators is supported in the record, which affords no basis on which it may be overturned. Minnesota Vikings Food Service, P.S. Protest No. 86-86, October 31, 1986.
The protest is denied.
William J. Jones
Associate General Counsel
Office of Contracts and Property Law
[checked against original JLS 5/21/93]
1/The contracting officer increased the score of Service America in the category "Menu Prices, Portion Sizes, and Management Controls" to 175 because its score did not adequately reflect the pricing and commissions set forth in Service America's proposal. While Service America complains that the score of Canteen Company in this category was not adjusted downward, there is nothing in the record to indicate that the "unadjusted" score of Canteen Company in this category, as originally set forth, is unreasonable. The fact of this adjustment indicates that care was taken in the proposal evaluation, and does not buttress Service America's position that the evaluation was not properly undertaken. Even as adjusted, Service America's proposal was not the most advantageous to the Postal Service.
2/
In its written comments, the protester quotes from Procurement Manual (PM) 2.1.6 c.5 that "when there are known sources capable of meeting the Postal Service's requirements with products of sufficient quality, price will normally be the determining factor." The protester asserts that the quoted regulation was not applied to this solicitation, and, therefore, the solicitation is flawed. This analysis warrants two comments. First, it is an untimely raised objection to the evaluation scheme, PM 4.5.4 b.1. Second, the protester neglects to refer to the remainder of that provision, which provides that price would be construed as the determining factor only in those cases in which "technical superiority at additional cost would be of no benefit" to the Postal Service. PM 2.1.6 c.5. The evaluation criteria in the solicitation obviously reflect the significance of the limited technical factors.3/
To the extent that Service America asserts that its failure to obtain the award of this contract is similar to its attempt to receive the award in 1988 of a six-month contract for food services at the General Mail Facility in Boston, that allegation is not supported by the record. There is no evidence that the Postal Service failed to follow the evaluation criteria of that solicitation in awarding that contract, nor is there evidence that the contracting officer responsible for that contract and for the contract subject to protest was the same.