B-166327, MAY 14, 1969

B-166327, MAY 14, 1969

TO AUTODATA, INC.:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 23, 1969, REQUESTING RECONSIDERATION OF OUR DECISION B-166327, MARCH 20, 1969, WHEREIN WE DENIED YOUR PROTEST OF THE AWARD OF A COST-PLUS-A-FIXED-FEE CONTRACT UNDER ARMY MOBILITY EQUIPMENT RESEARCH AND DEVELOPMENT CENTER REQUEST FOR QUOTATIONS DAAK02-69-Q-0010 TO SYSTEMS GENERAL CORPORATION FOR A TOTAL ESTIMATED AMOUNT OF $72,650 EVEN THOUGH YOUR FIRM HAD OFFERED A FIXED- PRICE PROPOSAL OF $67,800. YOUR PROTEST WAS DENIED ON THE BASIS THAT YOUR TECHNICAL PROPOSAL WAS UNACCEPTABLE TO THE PROCURING ACTIVITY AND BECAUSE OF THE PROVISIONS OF 10 U.S.C. 2310 (B) WHICH RENDERED THE DETERMINATION AND FINDING UNDER 10 U.S.C. 2306 (C) TO CONTRACT ON A COST-PLUS-A-FIXED- FEE BASIS FINAL AND NOT SUBJECT TO LEGAL OBJECTION BY OUR OFFICE.

YOUR REQUEST FOR RECONSIDERATION IS PREDICATED ON THREE ARGUMENTS SET FORTH IN YOUR LETTER OF APRIL 23 AS FOLLOWS: "1. THE RANGE OF PROPOSALS RECEIVED, AS STATED IN * * * (THE MARCH 20 DECISION), FROM A LOW OF $12,799 TO A HIGH OF $79,653 WOULD AUTOMATICALLY, IN THE MIND OF ANY RESPONSIBLE PROCUREMENT INDIVIDUAL IN INDUSTRY GIVE RISE TO THE QUESTION OF AMBIGUITY IN THE WORK STATEMENT OF THE RFQ, AND CERTAINLY CALL FOR VERY CAREFUL CONSIDERATION OF THE LOWER-RANGE PROPOSALS. "2. THE SUBMISSION OF A FIXED-PRICE PROPOSAL WHICH APPARENTLY WAS WELL WITHIN RANGE OF A PREDETERMINED INTERNAL ESTIMATE OR BUDGET, WOULD AUTOMATICALLY AND WITHOUT EXCEPTION REQUIRE EXTENSIVE EXPLORATION BY ANY RESPONSIBLE PROCUREMENT INDIVIDUAL IN INDUSTRY BEFORE A DECISION NOT TO PROCURE FROM THE OFFEROR WAS FINALLY MADE. "3. * * * (THE CONTRACTING OFFICER-S) LETTER DID NOT, NOR DID ANY OTHER CORRESPONDENCE, INFER OR STATE THAT THE AUTODATA, INC. PROPOSAL WAS TECHNICALLY UNACCEPTABLE. IN THIS REGARD I REMIND YOU THAT THE REQUIREMENT WAS FOR A MANAGEMENT SYSTEM, NOT AN AIRBORNE VEHICLE. THE TECHNICAL LATITUDES IN MEETING A SPECIFIC NEED ARE QUITE DIFFERENT.'

STANDING ALONE, THE WIDE RANGE OF QUOTED PRICES SUBMITTED IN RESPONSE TO THE SOLICITATION COULD POSSIBLY GIVE RISE TO THE QUESTION PRESENTED IN YOUR FIRST POINT. HOWEVER, IN THE PRESENT CASE, A CAREFUL REVIEW OF ALL THE RESPONSES TO THE SOLICITATION DISCLOSED A LOGICAL CORRELATION BETWEEN THE PRICES QUOTED BY THE SEVERAL OFFERORS AND THEIR UNDERSTANDING AND PROPOSED SOLUTIONS TO THE PROBLEM. FOR EXAMPLE, THE TWO OFFERORS SUBMITTING THE LOWEST PRICES, GREATLY UNDERESTIMATED THE CONTEMPLATED ENGINEERING AND MANPOWER EFFORT NECESSARY TO MEET THE REQUIREMENTS OF THE PROCURING ACTIVITY. THE WIDE RANGE OF PRICES DISCLOSED TO THE CONTRACTING OFFICIALS IN THE PARTICULAR CIRCUMSTANCES OF THIS CASE WAS THEREFORE NOT INDICATIVE OF ANY FAILURE OF THE WORK STATEMENT IN THE SOLICITATION TO MEET THE REQUISITE DEGREE OF CERTAINTY OR CLEARNESS, BUT WAS DUE TO THE TECHNICAL UNDERSTATEMENTS IN THE OFFERS.

WITH RESPECT TO YOUR SECOND AND THIRD POINTS, IT IS TRUE THAT THE REGULATIONS GOVERNING THE PROCUREMENT FUNCTIONS OF THE VARIOUS DEPARTMENTS OF THE GOVERNMENT FAVOR THE USE OF FIRM FIXED-PRICE CONTRACTS OVER COST- REIMBURSABLE CONTRACTS FOR REASONS OUTLINED IN ASPR 3-402 (B) (1) AND 3- 404.2. HOWEVER, THE CONTRACTING OFFICER NEED NOT NEGOTIATE WITH ANY OFFEROR IF ITS FIXED-PRICE PROPOSAL IS SO TECHNICALLY INFERIOR THAT MEANINGFUL NEGOTIATION IS PRECLUDED. SEE 48 COMP. GEN. ---- (B-164434, NOVEMBER 13, 1968), AND B-164313, JULY 5, 1968. IN THIS REGARD, THE CONTRACTING OFFICER'S STATEMENT, DATED FEBRUARY 10, 1969, ENCLOSED WITH THE FEBRUARY 27, 1969, ADMINISTRATIVE REPORT FURNISHED TO OUR OFFICE BY THE ACTING DEPUTY DIRECTOR OF PROCUREMENT AND PRODUCTION, HEADQUARTERS UNITED STATES ARMY MATERIEL COMMAND, IN RESPONSE TO YOUR INITIAL PROTEST, REPORTED THAT YOUR PROPOSAL WAS TECHNICALLY UNACCEPTABLE, AND HENCE, DID NOT PROVIDE A PROPER BASIS TO EVEN COMMENCE NEGOTIATIONS WITH YOUR FIRM FOR THE FOLLOWING TWO REASONS:

"/1). THEIR PROPOSAL DID NOT MEET THE REQUIREMENTS OF THE RFQ IN THAT THE PROPOSED METHOD OF DISPLAY ALLOWED A MAXIMUM OF TWO (2) 3 FEET X 4 FEET PANELS TO BE DISPLAYED AT ANY ONE TIME. THE FIRST SENTENCE OF PARAGRAPH A.1.A. REQUIRES THE FABRICATION AND INSTALLATION OF THIRTY (30) 3 FEET X 4 FEET MOVABLE DISPLAY BOARDS AND PARAGRAPH F-2 STATES THAT THE GOVERNMENT WILL PROVIDE A DISPLAY AREA -WALL SURFACE 8 FEET HIGH X 24 FEET LONG FOR INSTALLATION OF DISPLAY BOARDS-, WHICH CLEARLY SHOWS A REQUIREMENT TO DISPLAY TWELVE (12) SEPARATE PANELS AT ONE TIME. SUCH A DISPLAY IS NECESSARY TO MEET THE REQUIREMENTS OF THE SECOND SENTENCE OF PARAGRAPH A.1.A. NEVERTHELESS, AUTODATA PROPOSED TO FURNISH A DISPLAY OF ONLY TWO (2) 3 FEET X 4 FEET BOARDS AT ANYONE TIME AND THEIR PROPOSAL WAS SO WRITTEN.

"/2). THEIR PROPOSAL FAILED TO GIVE SPECIFIC DETAILS OF THEIR TECHNICAL APPROACH OR PROPOSED METHOD OF ACCOMPLISHMENT AS REQUIRED BY PARAGRAPH H.1.F. OF THE RFQ. THEIR PROPOSAL WAS NOTHING MORE THAN A RESTATEMENT OF THE TECHNICAL REQUIREMENTS FOR DATA ANALYSIS AND ASSEMBLY AS SET OUT IN THE RFQ. IT GAVE NO METHOD OF APPROACH OR TECHNICAL ACCOMPLISHMENT THAT WOULD ALLOW ADEQUATE TECHNICAL EVALUATION OF THEIR PROPOSED METHODS OR ABILITY TO PERFORM.'

ACCORDINGLY, AND IN VIEW OF THE FACT THAT WE MUST ASCRIBE FINALITY TO ADMINISTRATIVE DETERMINATIONS REGARDING THE TECHNICAL ACCEPTABILITY OF PROPOSALS SUBMITTED IN RESPONSE TO PARTICULAR SOLICITATION, OUR PRIOR DECISION OF APRIL 23, 1969, IS AFFIRMED. SEE B-164313, SUPRA. MOREOVER, SINCE WE HAVE FULLY CONSIDERED ALL OF THE FACTS AND CIRCUMSTANCES SURROUNDING THE PROTESTED AWARD, NO FURTHER ACTION WILL BE TAKEN BY OUR OFFICE WITH RESPECT THERETO.