B-178001, MAY 14, 1974, 53 COMP GEN 860

B-178001, MAY 14, 1974, 53 COMP GEN 860

CONTRACTS - NEGOTIATION - COMPETITION - DISCUSSION WITH ALL OFFERORS REQUIREMENT - DEFICIENCIES IN PROPOSALS RULE IN 53 COMP. GEN. 593 (1974), REQUIRING THAT OPPORTUNITY BE GIVEN OFFEROR TO SUBMIT REVISED PROPOSAL BEFORE ITS PROPOSAL INITIALLY IN COMPETITIVE RANGE CAN BE ELIMINATED FROM CONSIDERATION, IS MODIFIED TO ALLOW ELIMINATION FROM COMPETITIVE RANGE OF PROPOSALS INCLUDED BECAUSE THEY MIGHT HAVE BEEN SUSCEPTIBLE TO BEING MADE ACCEPTABLE OR BECAUSE THERE WAS DOUBT AS TO WHETHER THEY WERE IN COMPETITIVE RANGE AND DISCUSSIONS RELATING TO AMBIGUITIES OR OMISSIONS MAKE CLEAR THAT PROPOSALS SHOULD NOT HAVE BEEN INCLUDED IN COMPETITIVE RANGE INITIALLY. OTHERWISE PROPOSALS INITIALLY DETERMINED TO BE WITHIN COMPETITIVE RANGE SHOULD NOT BE REJECTED WITHOUT PROVIDING OFFERORS AN OPPORTUNITY TO SUBMIT REVISED PROPOSALS.

IN THE MATTER OF OPERATIONS RESEARCH, INC., MAY 14, 1974:

THE NAVY HAS REQUESTED RECONSIDERATION OF OUR DECISION 53 COMP. GEN. 593 (1974), IN WHICH WE CONCLUDED THAT OPERATIONS RESEARCH, INC. HAD BEEN IMPROPERLY DENIED AN OPPORTUNITY TO SUBMIT A REVISED PROPOSAL AFTER IT HAD BEEN FOUND TO BE IN THE COMPETITIVE RANGE. THE BASIS FOR THAT CONCLUSION WAS OUR HOLDING THAT ONCE AN OFFEROR IS DETERMINED TO BE IN THE COMPETITIVE RANGE, THE OFFEROR MUST BE GIVEN AN OPPORTUNITY TO SUBMIT A REVISED PROPOSAL BEFORE IT CAN BE ELIMINATED FROM THE COMPETITIVE RANGE. THE NAVY URGES THAT WE CLARIFY AND REVISE THIS HOLDING IN VIEW OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-805 AS REVISED BY DEFENSE PROCUREMENT CIRCULAR (DPC) #110.

THE NEW ASPR 3-805.2(A) PROVIDES THAT:

*** WHEN THERE IS DOUBT AS TO WHETHER A PROPOSAL IS WITHIN THE COMPETITIVE RANGE, THAT DOUBT SHALL BE RESOLVED BY INCLUDING IT. THE INITIAL NUMBER OF PROPOSALS CONSIDERED AS BEING WITHIN THE COMPETITIVE RANGE MAY BE REDUCED WHEN, AS A RESULT OF THE WRITTEN OR ORAL DISCUSSIONS, ANY SUCH PROPOSAL HAS BEEN DETERMINED TO NO LONGER HAVE A REASONABLE CHANCE OF BEING SELECTED FOR AWARD.

ALTHOUGH THE PROCUREMENT INVOLVED IN THIS CASE OCCURRED PRIOR TO THE EFFECTIVE DATE OF DPC #110, THE NAVY ARGUES THAT OUR HOLDING CANNOT BE APPLIED PROSPECTIVELY WITHOUT COMING INTO CONFLICT WITH THE REVISED ASPR 3 -805.2(A), WHICH DOES NOT EXPLICITLY REQUIRE SUBMISSION OF A REVISED PROPOSAL AS A CONDITION PRECEDENT TO ELIMINATING AN OFFEROR FROM THE COMPETITIVE RANGE.

WE UNDERSTAND THAT ASPR 3-805.2(A) WAS PROMULGATED PARTIALLY IN RESPONSE TO OUR DECISION REPORTED AT 52 COMP. GEN. 198 (1972), IN WHICH WE HELD THAT A CONTRACTING AGENCY SHOULD NOT BE REQUIRED TO HOLD DISCUSSIONS WITH AN OFFEROR ONCE IT IS DETERMINED THAT THE OFFEROR'S PROPOSAL, INITIALLY WITHIN THE COMPETITIVE RANGE, IS NO LONGER WITHIN THE ACCEPTABLE RANGE. HOWEVER, AS WE POINTED OUT IN OUR PRIOR DECISION IN THIS CASE, IT WAS THE EXAMINATION OF THE PROTESTER'S REVISED PROPOSAL WHICH REVEALED SERIOUS DEFICIENCIES AND WHICH LED THE CONTRACTING AGENCY TO VIEW THE PROPOSAL AS NO LONGER IN THE COMPETITIVE RANGE. WE DID NOT HOLD THEN, NOR DO WE BELIEVE NOW, THAT CONTRACTING OFFICIALS IN GENERAL SHOULD BE FREE TO REJECT PROPOSALS ONCE CONSIDERED ACCEPTABLE WITHOUT PROVIDING THE OFFEROR AN OPPORTUNITY TO SUBMIT REVISED PROPOSALS.

HOWEVER, IN VIEW OF DPC #110, WE AGREE WITH THE NAVY THAT UNDER CERTAIN CIRCUMSTANCES IT WOULD NOT BE INAPPROPRIATE FOR CONTRACTING OFFICERS TO ELIMINATE PROPOSALS FROM THE COMPETITIVE RANGE WITHOUT THE BENEFIT OF SUBMISSION OF REVISED PROPOSALS. WE ARE IN FAVOR OF THE BROAD APPROACH EXPRESSED IN DPC #110, WHICH CALLS FOR THE RESOLUTION OF DOUBTS IN FAVOR OF ALLOWING PROPOSALS INTO THE COMPETITIVE RANGE, BECAUSE IT TENDS TO MAXIMIZE COMPETITION. UNDER THIS APPROACH, WE UNDERSTAND THAT PROPOSALS MAY BE CONSIDERED TO BE IN THE COMPETITIVE RANGE BECAUSE THEY MAY BE SUSCEPTIBLE TO BEING MADE ACCEPTABLE OR BECAUSE DOUBTS AS TO WHETHER THE PROPOSALS SHOULD BE IN THE COMPETITIVE RANGE ARE TO BE RESOLVED IN FAVOR OF THE PROPOSALS. HOWEVER, IN THE COURSE OF WRITTEN OR ORAL DISCUSSIONS, IT MAY WELL BECOME CLEAR THAT THE PROPOSALS DO NOT BELONG IN THE COMPETITIVE RANGE. AS THE NAVY POINTS OUT, "THE DISCUSSION PROCESS ITSELF IS FREQUENTLY FAR MORE REVEALING THAN A BARE READING OF TECHNICAL PROPOSALS, AND CAN DEMONSTRATE THAT A DETERMINATION TO INCLUDE A GIVEN PROPOSAL WITHIN THE COMPETITIVE RANGE WAS ERRONEOUS ***." ACCORDINGLY, IN THOSE SITUATIONS WHERE DISCUSSIONS RELATING TO AN AMBIGUITY OR OMISSION MAKE CLEAR THAT A PROPOSAL SHOULD NOT HAVE BEEN IN THE COMPETITIVE RANGE INITIALLY, WE BELIEVE IT WOULD BE PROPER TO DROP THE PROPOSAL FROM THE COMPETITIVE RANGE WITHOUT ALLOWING THE SUBMISSION OF A REVISED PROPOSAL. IN ALL SUCH CASES, THE REASONS FOR THE REVISED DETERMINATION SHOULD BE MADE CLEAR TO THE OFFERORS WHOSE PROPOSALS ARE ELIMINATED. TO THE EXTENT OF THE FOREGOING, OUR DECISION AT 53 COMP. GEN. 593 (1974) IS MODIFIED.

HOWEVER, WE REMAIN OF THE VIEW THAT IN GENERAL A PROPOSAL INITIALLY INCLUDED IN THE COMPETITIVE RANGE SHOULD NOT BE REJECTED WITHOUT GIVING THE OFFEROR AN OPPORTUNITY TO SUBMIT A REVISED OR BEST AND FINAL PROPOSAL TO SERVE AS THE BASIS FOR AWARD OR ESTABLISHING A NEW COMPETITIVE RANGE.