TITLE:  Finlen Complex, Inc., B-288280, October 10, 2001
BNUMBER:  B-288280
DATE:  October 10, 2001
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Finlen Complex, Inc., B-288280, October 10, 2001

Decision

Matter of: Finlen Complex, Inc.

File: B-288280

Date: October 10, 2001

Frank Taras for the protester.

Phillip E. Johnson, Federal Contract Specialists, Inc., for Best Western
Butte Plaza Inn, an intervenor.

Col. Michael R. Neds, Capt. Ryan M. Zipf, and Matthew W. Bowman, Esq.,
Department of the Army, for the agency.

Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Notwithstanding statement in solicitation that simplified acquisition
procedures were being used and authority at Federal Acquisition Regulation
(FAR) sect. 12.602(a) not to disclose the relative weight of evaluation factors
when using simplified procedures, an agency's failure to disclose the
relative weight of evaluation factors was unreasonable because basic
fairness dictated disclosure of the relative weights where the agency
required offerors to prepare detailed written proposals addressing unique
government requirements.

2. Protester's contention that an agency's decision to assign a weight of 5
percent to a solicitation's past performance evaluation factor violates
FAR sect. 12.206 (providing that past performance should be an important element
of every evaluation) is denied as the FAR provision is discretionary, not
mandatory.

3. Even in a commercial acquisition using simplified procedures, where an
agency requests detailed written proposals, a selection decision is improper
where it lacks a rationale which sets forth a basis for the tradeoffs made,
including an explanation of any perceived benefits associated with
additional costs.

DECISION

Finlen Complex, Inc. protests the award of a contract to the Best Western
Butte Plaza Inn by the Department of the Army's Directorate of Contracting,
Fort Knox, Kentucky, pursuant to request for proposals (RFP) No.
DABT23-01-R-0010, issued to procure meals, lodging, and transportation for
applicants arriving for processing at the Military Entrance Processing
Station (MEPS) in Butte, Montana. Finlen argues that the agency either
unreasonably evaluated its excellent past performance, or improperly
undervalued the past performance evaluation factor. Finlen also contends
that, under the circumstances of this procurement, the agency wrongly
withheld the relative weight of the evaluation factors from the offerors,
and specifically, wrongly withheld the fact that the past performance factor
was worth only 5 percent of the total weight of evaluation factors. Finally,
Finlen contends that the "best value" decision here was improper.

We sustain the protest.

BACKGROUND

The RFP here--issued to implement a procurement described on the
solicitation's cover sheet as a "commercial acquisition, using simplified
acquisition procedures"--anticipated award of a fixed-price,
indefinite-quantity requirements contract, for a base period followed by
four 1-year options, to the offeror whose proposal was considered most
advantageous to the government. RFP at 28. The RFP advised that offers would
"be evaluated on facility quality, food and transportation proposal,
facility location, quality control, past performance and price factors." Id.
The RFP also advised that the "technical/quality factors [would be] more
important than cost or price." Id. Otherwise, the RFP was silent on the
relative weight of the non-price evaluation factors. The RFP was also silent
on the role in the selection decision of any non-price evaluation factor
other than past performance. As for the role of past performance, the
solicitation set forth considerable detail, including how the agency would
use the past performance assessment, and what it would consider. (Although
not disclosed to potential offerors, the relative weights set for this
procurement were: facility quality, 30 percent; food and transportation,
25 percent; facility location, 20 percent; quality control, 20 percent; and
past performance, 5 percent. Agency Report (AR), Tab G.)

In response, the agency received six proposals, including those of Finlen
and Best Western. Finlen, the incumbent contractor for these services,
proposed its hotel, built in 1924, and located in downtown Butte's National
Historical Landmark District, approximately two blocks from the MEPS
facility. Best Western's proposal identified its newer hotel--assessed by
one of the evaluators as approximately 30 years old--located approximately
three miles from the MEPS facility. AR, Tab H.

After determining that two of the proposals were unacceptable, a
three-member technical evaluation team conducted a detailed evaluation of
the remaining four proposals, and inspected each offeror's lodging and
dining facilities. The results of their evaluation and inspection are set
forth on more than 85 pages of handwritten notes and completed forms
included in the agency report. AR, Tabs I-J. Two of the three members of the
technical evaluation team assigned point scores to the proposals; the third
evaluator did not score the proposals. The two evaluators who scored
proposals used different scales--one rated proposals on a 100-point scale,
the other used a 115-point scale. Affidavit of the MEPS First Sergeant,
Sept. 17, 2001. At the conclusion of their review, the three evaluators met
to discuss their assessments and develop a consensus rating, which was
memorialized in a document entitled "Justification for Rating of Hotels."

The final consensus ratings assigned to Finlen's and Best Western's
proposals (on a 100-point scale) were 77 (satisfactory) and 89 (good),
respectively. Best Western's price (the award price) was $1.46 million,
while Finlen's price was significantly lower. Agency Report, Tabs J-K. For
the record, the remaining two proposals were evaluated as follows: one,
submitted by Offeror A, was priced higher than Best Western's, but with a
similar score; the other, while initially considered acceptable, was viewed
by the evaluators as unacceptable, and was not considered for award. Id.

Based on the results above, the contracting officer's representative (who
was also an evaluator) prepared a selection recommendation for the signature
of the MEPS Commander in the format of a memorandum to the contracting
officer. This document, dated April 13, recommends award to Best Western on
the basis that "this facility best meets the criteria of the "Best
Value' selection process and, further, best meets the requirements and
criteria of the Statement of Work in regards to this contract." AR, Tab J.
The memorandum notes that Offeror A "also has exceptionally strong
attributes in its ability to fulfill the obligations of the contract and is
the source selection board's second choice for award." With respect to
Finlen, the memorandum acknowledges that "[w]hile [Finlen] can meet the
requirements, it is the opinion of the source selection board that it is in
the best interests of the applicants and the Butte MEPS to award to either
[Best Western] or [Offeror A]." The memorandum makes no mention of any
offeror's price.

In a document dated May 7, the contracting officer accepted the
recommendation of the MEPS Commander in his memorandum of April 13. The
totality of her explanation for selecting the higher-rated, higher-priced
proposal of Best Western, set forth in Tab K of the agency report, is as
follows:

The committee recommended award to either [Best Western] or [Offeror A].
Both locations have exceptionally strong attributes in its ability [sic] to
fulfill the obligations of the contract. [Best Western] submitted a total
price of $1,462,385.50 for base and 4 option years and [Offeror A] submitted
a total price of $1,566,407.50 for base and 4 option years.

DETERMINATION

Based on the above, it is determined to be in the best interest of the
Government to award a contract to Best Western Butte Plaza Inn, best offer,
technical and cost factors considered.

On May 15, the agency notified Finlen of the award to Best Western (AR, Tab
L), and on May 21, Finlen filed an agency-level protest challenging the
award decision. By letter dated June 20, the Army denied Finlen's
agency-level protest, and this protest followed.

DISCUSSION

Overview

Finlen's initial protest to our Office challenged several facets of its
evaluation that, given the development of this protest, are no longer
relevant to the outcome of this decision, and need not be specifically
addressed. [1] Instead, upon receipt of the agency report, Finlen first
learned that the past performance evaluation factor was worth only 5
percent. In response, Finlen argued that the solicitation was misleading
about the relative weight of past performance. In defending the weight
assigned past performance, and urging that Finlen could not reasonably claim
to have been misled by this solicitation, the Army pointed out that the
solicitation, on its face, advised offerors that the agency was using
simplified acquisition procedures. In addition, the Army argued that
pursuant to Federal Acquisition Regulation (FAR) sect.sect. 12.602(a) and
13.106-1(a)(2), agencies are not required to advise offerors of the relative
weight of evaluation factors when using simplified acquisition procedures.
As a result, the Army argued that Finlen's protest, in essence, was a
challenge to the solicitation's use of simplified procedures and should be
dismissed as untimely.

As set forth below, we address first our conclusion that Finlen's
expectations regarding the relative weight of past performance in this
solicitation were reasonable, although we deny Finlen's contention that the
5 percent weight assigned the past performance evaluation factor violated
the terms of the FAR. We then turn to the issues raised by the Army's
defense of Finlen's challenge, including our conclusion that even if
Finlen's challenge, as alleged by the agency, is untimely, Finlen's
complaint should be reviewed under the "significant issue" exception to our
timeliness rules. Finally, we conclude that, in the circumstances of this
procurement, by requiring offerors to prepare detailed proposals addressing
several non-price evaluation factors, fairness dictated that the agency
reveal to the offerors the relative weight of the evaluation factors that
would be used to assess those proposals.

Weight of Past Performance Factor

Finlen argues that it reasonably expected that past performance would play a
greater role in the selection decision here, given the terms and conditions
of the solicitation, and that the solicitation was therefore misleading. The
Army argues that Finlen cannot claim to have been misled because the
solicitation was silent about the relative weight of evaluation factors, and
accordingly, there was nothing in the solicitation to support the
expectation upon which Finlen now relies. For the reasons set forth below,
we disagree with the Army's position.

Our review of this solicitation shows that while it contains nothing labeled
as section M (as is found in the standard uniform contract format for
negotiated procurements (see FAR sect. 15.204-1)), it nonetheless advises
offerors of the bases for the agency's selection decision in a full page and
a half of single-spaced narrative, under the heading "Award." RFP at 28-29.
After two brief paragraphs identifying the evaluation factors and advising
that the technical and quality factors would be more important than price,
RFP at 28, the majority of this narrative is dedicated to six paragraphs and
subparagraphs explaining how the agency will assess past performance, how it
will use this assessment, and what it will consider. At no point does this
award narrative offer any explanation, definition, or information of any
kind, on any non-price evaluation factor but past performance. In short, we
cannot square the attention devoted to past performance in this solicitation
with the agency's decision to make past performance by far the least
important factor, worth only 5 percent of its non-price assessment. Thus, we
think it was reasonable for Finlen to expect that the agency would give past
performance significant weight.

In addition, we think Finlen's expectations are buttressed by the language
in the FAR encouraging agencies to make past performance an important
element in the evaluation of commercial items, although we deny Finlen's
contention that the agency violated the FAR by not doing so. In this regard,
Finlen argues that the 5 percent weight assigned the past performance
evaluation factor is inconsistent with FAR sect. 12.206, which provides that
"[p]ast performance should be an important element of every evaluation and
contract award for commercial items."

In response, the Army argues that there is nothing inherently improper in
assigning a weight of 5 percent to a past performance factor. Specifically,
the Army contends that FAR sect. 12.206 is not mandatory, but discretionary;
that the requirements of the FAR are met by including past performance as an
evaluation factor; and that past performance, in fact, was an important
element here because it could have been the determining factor in award in a
close competition. Agency Supplemental Response at 2-3.

Our review of FAR sect. 12.206 leads us to agree with the Army's contention that
this provision is not mandatory. Section 12.206 is set forth within FAR
subpart 12.2, entitled "Special Requirements for the Acquisition of
Commercial Items." The introductory paragraph within this subpart explains
that

Public Law 103-355 establishes special requirements for the acquisition of
commercial items intended to more closely resemble those customarily used in
the commercial marketplace. This subpart identifies those special
requirements as well as other considerations necessary for proper planning,
solicitation, evaluation and award of contracts for commercial items.

FAR sect. 12.201. In several instances the sections within subpart 12.2 use
mandatory language--i.e., contracting officers "shall" use a standard form
1449 in certain circumstances (sect. 12.204); agencies "shall" use fixed-price
contracts, or a variation thereof with economic price adjustment features,
when acquiring commercial items (sect. 12.207); and commercial software "shall"
be acquired under licenses customarily provided to the public (sect. 12.212). In
contrast, section 12.206 uses the word "should" in urging that past
performance be an important element of every evaluation and contract award
for commercial items. Thus, while the Army's approach is perhaps
inconsistent with the exhortation of the FAR, and with the general emphasis
on past performance in all federal procurements, it does not violate FAR
sect. 12.206.

Disclosure of Relative Weights of Evaluation Factors

As indicated above, the Army recasts Finlen's arguments about the weight of
past performance as a challenge to its use of simplified acquisition
procedures, and contends that, as such, Finlen's protest is untimely. On the
merits, the Army points out that FAR sect.sect. 12.602(a) and 13.106-1(a)(2) provide
that agencies are not required to advise offerors of the relative weight of
evaluation factors when using simplified procedures. In the Army's view,
since this solicitation, on its face, was identified as a commercial item
procurement using simplified acquisition procedures, the withholding of the
relative weight of evaluation factors is authorized by the last sentence of
FAR sect. 12.602(a), and no further analysis is needed. For the reasons set
forth below, we disagree.

With respect to the issue of timeliness, we recognize that Finlen's
arguments can be termed a challenge to the agency's use of simplified
procedures, even though Finlen's underlying complaint is that the
now-revealed weight of past performance is inconsistent with the weight it
reasonably expected. Assuming, arguendo, this ground of protest is untimely,
however, we view the issues raised here as appropriate for resolution
pursuant to the exception to our timeliness rules for protests raising
issues significant to the procurement system. 4  C.F.R. sect. 21.2(c) (2001).
Specifically, this case presents important issues regarding the treatment of
offerors participating in procurements that, although labeled as
acquisitions using simplified procedures, are conducted in a manner
virtually indistinguishable from any other negotiated procurement under FAR
part 15.

With respect to the merits, in 1994, Congress passed the Federal Acquisition
Streamlining Act (FASA) authorizing the use of simplified acquisition
procedures for purchases not exceeding $100,000. 10 U.S.C. sect.sect. 2304(a)(1)(A),
(g)(1), (g)(3) (1994 & Supp. IV 1998). In general terms, the simplified
procedures authorized by FASA permit the use of expedited and streamlined
evaluation and selection procedures for the award of smaller contracts. [2]
In 1996, Congress authorized a test program that permits enhanced discretion
and flexibility, as well as the use of the simplified procedures described
in FASA, for purchases of commercial items exceeding the $100,000 threshold
for simplified acquisition procedures, but not exceeding $5 million. 10
U.S.C. sect.sect. 2304(g)(1)(B), 2305(a)(2) (Supp. IV 1998). The regulations
implementing this authority are set forth at FAR Subpart 13.5, Test Program
for Certain Commercial Items.

The implementing regulations for the test program for commercial item
purchases valued up to $5 million permit agencies to use any simplified
acquisition procedure in FAR part 13, subject to applicable dollar
limitations, to test whether the additional flexibility "maximizes
efficiency and economy and minimizes burden and administrative costs for
both the Government and industry." FAR sect. 13.500(a). In addition, the
regulations authorizing the test program incorporate the requirements of FAR
part 12, Acquisition of Commercial Items. FAR sect. 13.500(c). FAR part 12
addresses general and special requirements for the acquisition of commercial
items (subparts 12.1 and 12.2); sets forth solicitation provisions, unique
terms and conditions, and the applicability of other statutes to these
procurements (subparts 12.3 through 12.5); and identifies "optional
procedures" (sect. 12.601) for the solicitation and evaluation of commercial
items (subpart 12.6).

Of relevance here, one of the optional procedures for the streamlined
evaluation of offers of commercial products provides, at FAR sect. 12.602(a):

When evaluation factors are used, the contracting officer may insert a
provision substantially the same as the provision at 52.212-2,
Evaluation--Commercial Items, in solicitations for commercial items or
comply with the procedures in 13.106 if the acquisition is being made using
simplified acquisition procedures. When the provision at 52.212-2 is used,
paragraph (a) of the provision shall be tailored to the specific acquisition
to describe the evaluation factors and relative importance of those factors.
However, when using the simplified acquisition procedures in Part 13,
contracting officers are not required to describe the relative importance of
evaluation factors.

The referenced clause at FAR sect. 52.212-2 advises that award will be made to
the offeror whose proposal is considered most advantageous to the
government, considering price and other factors, and includes several blank
lines to permit tailoring of the clause as described above--i.e., by
identifying evaluation factors and their relative weights. In contrast, the
referenced procedures at FAR sect. 13.106 provide that:

When soliciting quotations or offers, the contracting officer shall notify
potential quoters or offerors of the basis on which award will be made
(price alone or price and other factors, e.g., past performance and
quality). Contracting officers are encouraged to use best value.
Solicitations are not required to state the relative importance assigned to
each evaluation factor and subfactor, nor are they required to include
subfactors.

FAR sect. 13.106-1(a)(2).

The contrasting approaches to soliciting and evaluating offers for
commercial products permitted by FAR sect.12.602(a)--and echoed by
sect. 13.106-1(a)(2)--must be viewed within the discretion allowed contracting
officers conducting simplified acquisitions. In conducting a simplified
acquisition under FAR part 13, contracting officers have discretion to
choose among a continuum of procedures, from the most informal (such as oral
solicitations), through evaluation procedures drawn from FAR part 14 (sealed
bids), to the more formal and complex procedures available for negotiated
acquisitions set forth in FAR part 15. FAR sect. 13.106-2(b); see also FAR
sect. 12.203 (providing the same discretion for commercial item procurements).
While the FAR provides some guidance as to when different procedures are
appropriate (for example, FAR sect. 13.106-1(c) addresses the circumstances
where oral solicitations may be appropriate), contracting officers are left
with considerable discretion in selecting the procedures applicable to each
procurement. Where an agency's decisions in this regard are challenged in a
protest, our Office will review the agency's actions for reasonableness. See
Intellectual Properties, Inc., B-280803.2, May 10, 1999, 99-1 CPD para. 83 at
5-6 (broad grants of agency discretion in numerous areas are nonetheless
subject to the test of reasonableness).

With respect to the Army's contention that since this solicitation, on its
face, is identified as a commercial item procurement using simplified
acquisition procedures, no further analysis is needed, we disagree. We look
to the substance of an agency's actions, rather than the form. In our view,
the labeling of a procurement as "simplified" does not absolve the agency
from its obligation to treat vendors fairly. See COMARK Fed. Sys., B-278343,
B-278343.2, Jan. 20, 1998, 98-1 CPD para. 34 at 4-5 (agency's use of a
negotiated procurement approach, rather than a simple Federal Supply
Schedule purchase, triggered requirement to provide for a fair and equitable
competition).

While there is no dispute here that the procurement of meals and
locally-available hotel rooms for MEPS applicants appears to fall squarely
within the reach of a "commercial item," as that term is defined at FAR
sect. 2.101, there is little about the procedures used in this procurement that
can reasonably be called simplified. For example, the agency elected to use
a request for proposal format that requires the commercial offerors
here--hotels, specifically--to prepare proposals addressing five non-price
evaluation factors, including one factor, quality control, for which
offerors had to develop and submit a unique quality control plan requiring
contracting officer approval of plan changes throughout the life of the
contract. [3] Upon receipt of offers, agency personnel conducted a
full-scale evaluation, inspected offerors' premises, developed consensus
scores, and made a written selection recommendation to the MEPS commander,
who, in turn, recommended a selection decision to the contracting officer,
who, in turn, made and documented the selection. [4]

Despite the "simplified" label, this procurement is very similar to any
other negotiated acquisition conducted under the rules set forth in FAR part
15. Those rules require that when offerors are asked to prepare detailed
proposals, those offerors must be advised of the weight of all factors and
significant subfactors that will affect the contract award. FAR sect. 15.304(d).
When our Office asked the Army to address why it would want to withhold this
basic information from offerors preparing proposals, the agency answered
"that revealing the relative importance of factors may result in offerors
skewing their proposals to the more important factors." Agency Supp. Report
at 7. In addition, the Army argued that revealing the relative weight of
factors in the solicitation would hinder the agency's ability to change the
weight of those factors during the course of its evaluation. Id. In our
view, neither of these considerations is appropriate under the circumstances
of this, or any other, procurement, nor are they advisable for the integrity
of the public procurement process.

We recognize that CICA exempts solicitations in procurements using
simplified procedures from the requirement that the relative importance of
evaluation factors be disclosed. 10 U.S.C. sect. 2305(a)(2). Moreover, we are
sensitive to the fact that the thrust of FAR parts 12 and 13 is to avoid the
use of procedures that constrict and complicate the acquisition process, and
that FAR sect.sect. 12.602(a) and 13.106-1(a)(2) do not, on their face, limit a
contracting officer's discretion to disclose, or not disclose, the relative
weight of evaluation criteria in a commercial item procurement conducted
using simplified procedures. Nonetheless, basic principles of fair play are
a touchstone of the federal procurement system, and those principles bound
even broad grants of agency discretion. See Intellectual Properties, Inc.,
supra. In addition, even when using simplified procedures--and before them,
when using small purchase procedures--federal procurements must be conducted
with the concern for a fair and equitable contest that is inherent in any
competition. Discount Mach. and Equip., Inc., B-220949, Feb. 25, 1986, 86-1
CPD para. 193 at 3.

Here, where the agency required the commercial offerors to prepare detailed
proposals addressing unique government requirements, withholding the
relative weight of evaluation factors denied the offerors one of the basic
tools used to develop the written, detailed proposals called for in the
solicitation. The failure to disclose was particularly unfair here because
of the contrast between the indications in the RFP that past performance
would be a significant evaluation factor, and the agency's actual intent to
make it, by far, the least important one (worth only one quarter of the
second-least important factor). While there are certainly circumstances in
which agencies need not disclose the relative weight of evaluation factors
when conducting a simplified acquisition, this procurement, in our view, is
not one of them. Given these circumstances, we believe that fairness
dictated that the Army disclose the relative weight of its evaluation
criteria to offerors. See Krygoski Constr. Co., Inc. v. United States, 94
F.3d 1537, 1543 (Fed. Cir. 1996), cert. denied, 520 U.S. 1210 (1997) (the
overarching principle codified in the Competition in Contracting Act is that
agencies provide impartial, fair, and equitable treatment for each
contractor); Dubinsky v. United States, 43 Fed. Cl. 243, 259 (1999) (making
offerors aware of the rules of the game in which they seek to participate is
fundamental to fairness and open competition).

Best Value

Finlen lastly argues that the selection decision here was improper. Based on
our review, we agree. As set forth above, neither the selection
recommendation of the MEPS commander to the contracting officer, nor the
contracting officer's determination, includes any explanation or rationale
for the benefits associated with choosing the higher-priced proposal of Best
Western over the lower-priced proposal of Finlen. In our view, such an
assessment was required here to determine whether an offeror's technical
superiority justifies the cost premium. See FAR sect.sect. 12.602(c), 13.501(b)(3);
Universal Bldg. Maint., Inc., B-282456, July 15, 1999, 99-2 CPD para. 32 at 4.

In addition, the problems in the source selection decision here are not
limited to those raised by Finlen. Even in the statement that purports to
represent a selection between the higher-priced proposal of offeror A and
the proposal of Best Western, there is no qualitative assessment whatsoever
of the technical differences between those offers, or alternatively, a
conclusion that the proposals are technically equivalent, and a
corresponding decision that there are no benefits in Offeror A's proposal
that justify paying its higher price. Without such assessments, the
selection decision here is not reasonable.

As a final matter--and related to our view that the best value decision here
was improper--the agency argues that this protest should be denied as Finlen
cannot claim to be prejudiced by the agency's withholding of the relative
weight of evaluation factors because none of the other offerors were aware
of the weights, and because, even if the scores are recalculated as if each
of the factors were weighted equally, Finlen would not be in line for award.
We disagree.

The agency is correct in noting that our Office will not sustain a protest
unless there is a reasonable possibility of prejudice, that is, but for the
agency's actions, the protester would have had a substantial chance of
receiving the award. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para. 54
at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir.
1996). On the other hand, we accord lesser weight to "reevaluations and
redeterminations prepared in the heat of the adversarial process" since
"they may not represent the fair and considered judgment of the agency,
which is a prerequisite of a rational evaluation and source selection
process." Boeing Sikorsky Aircraft Support, B-277263.2, B-277263.3,
Sept. 29, 1997, 97-2 CPD para. 91 at 15. Here, under the agency's rescoring
approach, the difference in the point scores between these offerors closes
from 12 points between the proposals of Finlen and Best Western, to less
than 3 points. Under these circumstances, the contracting officer would need
to form a judgment about whether to select Best Western's (or Offeror A's)
higher-priced proposal, rather than Finlen's slightly lower-rated,
lower-priced proposal. It is precisely this new judgment that should not be
made in the heat of litigation. Moreover, as noted above, this judgment
requires a reasoned consideration of any benefits the contracting officer
might view as justifying the higher-priced proposal of Best Western (or
Offeror A) over the lower-priced proposal of Finlen, not a cursory
comparison of point scores.

RECOMMENDATION

As indicated above, we conclude that it was unreasonable, under the
circumstances of this procurement, to withhold from offerors the relative
weight of evaluation factors. Since the record here indicates that the
agency concluded that a relative weight of 5 percent for past performance
would meet its needs, we recommend that the agency amend the solicitation to
advise offerors of the evaluation factors and their relative weights, and
resolicit proposals. Upon conclusion of its new evaluation, we recommend
that the agency make a new selection decision, taking care to explain any
benefits associated with any tradeoff decision. If Best Western is not the
successful offeror after the revised selection decision, the Army should
terminate its contract. We also recommend that the protester be reimbursed
the reasonable cost of filing and pursuing its protest, including reasonable
attorneys' fees. 4 C.F.R. sect. 21.8(d)(1). The protester should submit its
certified claim for such costs, detailing the time expended and the cost
incurred, directly to the contracting agency within 60 days after receipt of
this decision.

The protest is sustained.

Anthony H. Gamboa

General Counsel

Notes

1. We note for the record that Finlen's initial protest filing surmised that
either its past performance was unreasonably assessed, or the past
performance factor was improperly weighted; Finlen also questioned, among
other things, how its close location to the MEPS facility was considered
under the facility location evaluation factor.

2. Prior to FASA, the Competition in Contracting Act of 1984 (CICA), 10
U.S.C. sect.sect. 2304(a)(1), (g)(1) (1988), similarly excepted procurements
conducted under small purchase procedures from the full and open competition
requirements, and from the procedures needed to meet those requirements.
Bosco Contracting, Inc., B-270366, Mar. 4, 1996, 96-1 CPD para. 140 at 2 n.1.

3. RFP at 11-12.

4. Although it is not the role of our bid protest function to recommend that
the agency use, or not use, a particular approach to procuring lodging and
meals for MEPS applicants, our Office has expressed concerns that the test
program to date is not including an assessment of the extent to which, among
other things, the time required to award contracts is being reduced, or
administrative costs are being reduced. Contract Management: Benefits of
Simplified Acquisition Test Procedures Not Clearly Demonstrated, GAO-01-517
(Apr. 2001), at 6. The approach that the Army adopted here would not appear
to have furthered either of those goals of the test program.