B-157156, NOV. 8, 1965

B-157156: Nov 8, 1965

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INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 1. THE PROCUREMENT FOR THE STUDY OF TAERS BY FORMAL ADVERTISING WAS IMPRACTICABLE BECAUSE IT CONTEMPLATED STUDIES OR SURVEYS OTHER THAN THOSE WHICH MIGHT BE NEGOTIATED UNDER ASPR 3-205 OR 3-211. THE RFP WAS ISSUED WITH THE INTENT OF NEGOTIATING A CONTRACT FOR REVIEWING AND EVALUATING ALL THE ARMY EQUIPMENT RECORDS SYSTEM (TAERS) DATA (TM-28-750) FOR COMPLETION WITHIN 27 WEEKS AFTER DATE OF AWARD. NINETEEN PROPOSALS WERE RECEIVED PRIOR TO THE CLOSE OF BUSINESS (4:15 P.M. TECHNICAL EVALUATION OF THE PROPOSALS WAS CONDUCTED FROM JUNE 16. THE PROPOSALS OF EIGHT COMPANIES WERE FOUND TO BE UNACCEPTABLE. ALTHOUGH FOUND TO BE TECHNICALLY QUALIFIED WERE FOUND TO BE UNACCEPTABLE AS TO PRICE.

B-157156, NOV. 8, 1965

TO ELCOM, A DIVISION OF AUDIGER, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 1, 1965, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER REQUEST FOR PROPOSALS (RFP) NO. AMC-36-005-65-12, ISSUED JUNE 1, 1965, BY THE LETTERKENNY ARMY DEPOT.

ON MAY 26, 1965, THE CONTRACTING OFFICER MADE A DETERMINATION IN THIS CASE THAT, PURSUANT TO 10 U.S.C. 2304 (A) (10) AND PARAGRAPH 3/210.2 (VIII) OF THE ARMED SERVICES PROCUREMENT REGULATION, THE PROCUREMENT FOR THE STUDY OF TAERS BY FORMAL ADVERTISING WAS IMPRACTICABLE BECAUSE IT CONTEMPLATED STUDIES OR SURVEYS OTHER THAN THOSE WHICH MIGHT BE NEGOTIATED UNDER ASPR 3-205 OR 3-211.

THE RFP WAS ISSUED WITH THE INTENT OF NEGOTIATING A CONTRACT FOR REVIEWING AND EVALUATING ALL THE ARMY EQUIPMENT RECORDS SYSTEM (TAERS) DATA (TM-28-750) FOR COMPLETION WITHIN 27 WEEKS AFTER DATE OF AWARD. NINETEEN PROPOSALS WERE RECEIVED PRIOR TO THE CLOSE OF BUSINESS (4:15 P.M., E.D.T.), JUNE 15, 1965, THE CLOSING SUBMISSION TIME AS EXTENDED. TECHNICAL EVALUATION OF THE PROPOSALS WAS CONDUCTED FROM JUNE 16, 1965, THROUGH JUNE 18, 1965. THE PROPOSALS OF EIGHT COMPANIES WERE FOUND TO BE UNACCEPTABLE. THREE PROPOSALS, ALTHOUGH FOUND TO BE TECHNICALLY QUALIFIED WERE FOUND TO BE UNACCEPTABLE AS TO PRICE, BASED ON A MAXIMUM ESTABLISHED PRICE OF $80,000.

YOUR BID OF $69,904, RATED SECOND AS TO TECHNICAL PRIORITY, WAS FOUND TO BE SIXTH LOW. THE BID OF TECHNICAL SERVICES CORPORATION IN THE AMOUNT OF $42,708.16, RATED FIFTH AS TO TECHNICAL PRIORITY, RANKED FIRST AS TO PRICE.

IT HAS BEEN REPORTED THAT ON JUNE 23, 1965, DUE TO THE URGENCY OF THE REQUIREMENT, TELEPHONE NEGOTIATIONS WERE CONDUCTED WITH THE NINE BIDDERS WITHIN THE ESTABLISHED PRICE RANGE WHO WERE RATED AS TECHNICALLY QUALIFIED; THAT THESE COMPANIES WERE REQUESTED TO REVIEW THEIR PROPOSALS AND SUBMIT THEIR FINAL ESTIMATED COSTS BY JUNE 25, 1965; THAT SUGGESTED AREAS WHERE REVISIONS MIGHT BE MADE IN YOUR PROPOSAL WERE LABOR AND BURDEN COSTS; THAT ALL BIDDERS WERE INSTRUCTED HOWEVER, THAT ANY REVISIONS WERE TO BE ACCOMPLISHED WITHOUT CHANGING THE LEVEL OF EFFORT; THAT NEGOTIATIONS WERE CONCLUDED JUNE 25, 1965; AND THAT THE LOW TECHNICAL QUALIFIED PROPOSAL WAS SUBMITTED BY TECHNICAL SERVICES CORPORATION WHICH OFFERED TO ACCEPT A FIXED-PRICE CONTRACT AT $42,708.16, PLUS AN ESTIMATED $4,000 FOR ACTUAL ALLOWABLE TRAVEL COSTS.

AS TO THE NEGOTIATIONS CONDUCTED WITH ELCOM IT HAS BEEN REPORTED THAT ON JUNE 23, 1965, YOUR MR. HAMILTON SEELEY WAS ADVISED BY TELEPHONE THAT AN EFFORT WAS BEING MADE TO NEGOTIATE A FINAL OFFER; THAT BY LETTER AND TELETYPE BOTH DATED JUNE 23, 1965, ELCOM ADVISED THAT IT WOULD REDUCE ALL DIRECT LABOR COSTS, AS SET FORTH IN ITS PROPOSAL BY TENPERCENT; THAT SINCE THIS NEGOTIATION WAS SPECIFIED AS A FINAL OFFER AND THE REDUCTION WAS NOT WITHIN RANGE OF THE LOW BID, NEGOTIATIONS WITH ELCOM WERE CONCLUDED; AND THAT SINCE TECHNICAL SERVICES CORPORATION WAS DEEMED TO HAVE SUBMITTED THE PROPOSAL MOST ADVANTAGEOUS TO THE GOVERNMENT, AWARD WAS MADE TO THAT BIDDER AFTER IT HAD BEEN DETERMINED TO BE A RESPONSIBLE BIDDER PURSUANT TO THE REQUIREMENT OF THE ARMED SERVICES PROCUREMENT REGULATION, SECTION 1 903.

YOUR LETTER OF JULY 14, 1965, TO THE CONTRACTING OFFICER INDICATES THAT YOUR PROTEST IS BASED PRIMARILY ON TWO CONTENTIONS, NAMELY, (1) ELCOM WAS ASSURED BY RESPONSIBLE PERSONS (MR. HARRING, LIEUTENANT COLONEL THORNTON, COLONEL BENJAMIN, MR. C. O. DILL, MR. W. A. CHANCE, AND MR. J. GRAHAM) THAT IT WOULD BE AWARDED THE CONTRACT ON A SOLE SOURCE BASIS WHICH ASSURANCE RESULTED IN THE EXPENDITURE OF CONSIDERABLE TIME AND MONEY IN THE PREPARATION OF A PROPOSAL SUBMITTED BY ELCOM PRIOR TO THE ISSUANCE OF THE RFP AND (2) THAT ELCOM FEELS THAT THE SHORT LEAD TIME ALLOWED BY THE RFP (JUNE 1, 1965, TO JUNE 15, 1965) PRECLUDED ALL OTHER COMPANIES FROM PLANNING, ANALYZING IN DEPTH, MANNING AND SUBMITTING A MEANINGFUL PROPOSAL FOR THE PROGRAM.

AS TO YOUR FIRST CONTENTION, IT HAS BEEN REPORTED THAT AN INVESTIGATION DISCLOSED THAT WHILE ELCOM HAD BEEN FURNISHED CERTAIN INFORMATION ABOUT TAERS AND HAD BEEN ALLOWED TO VISIT CERTAIN GOVERNMENT INSTALLATIONS TO STUDY VARIOUS ASPECTS OF TAERS, THESE CONCESSIONS WERE MADE TO ELCOM AT ITS REQUEST; THAT SUCH CONCESSIONS DEFINITELY WERE NOT MADE AT THE REQUEST OF THE GOVERNMENT; THAT EACH INDIVIDUAL NAMED IN YOUR LETTER OF JULY 14, 1965, AS THE SOURCE OF ADVICE THAT YOUR COMPANY WOULD BE APPROVED AS SOLE- SOURCE CONTRACTOR HAS ASSERTED, IN EFFECT, THAT THE ORIGINAL PROPOSAL SUBMITTED BY YOU WAS UNSOLICITED; THAT NO ASSURANCE COULD BE MADE REGARDING THE AWARD OF A CONTRACT, SINCE THIS WAS THE SOLE RESPONSIBILITY OF THE CONTRACTING OFFICER; AND THAT NO STATEMENT WAS MADE THAT YOUR PROPOSAL WOULD BE HANDLED FOR CONTRACT PURPOSES AS A SOLE-SOURCE BASIS. IN THIS REGARD, COLONEL BENJAMIN IN A SIGNED STATEMENT DATED AUGUST 20, 1965, REFERRING TO TELEPHONE CONVERSATIONS WITH YOUR REPRESENTATIVES STATED THAT HE MADE IT A SPECIFIC POINT IN NEARLY EVERY CONVERSATION THAT THERE WAS NO ASSURANCE THAT THE CONTRACT WOULD BE CONSUMMATED AND THAT IF CONSUMMATED IT COULD GO TO OTHER CONTRACTORS. IN A SIGNED STATEMENT DATED AUGUST 6, 1965, LIEUTENANT COLONEL THORNTON STATED THAT THE MATTER OF SUBMITTING A PROPOSAL WAS DISCUSSED WITH YOUR REPRESENTATIVES; THAT WHILE HE POSED NO OBJECTION THERETO, HE SUGGESTED THAT INASMUCH AS THE ARMY MAINTENANCE BOARD, THE PRINCIPAL PROPONENT OF TAERS, WAS THEN ENGAGED IN A TAERS EVALUATION STUDY, SUCH A PROPOSAL MIGHT BE USED AS PART OF A FINAL EVALUATION BY THE BOARD. COLONEL THORNTON SPECIFICALLY STATED HOWEVER, THAT "I DID NOT STATE THAT THE PROPOSAL WOULD BE HANDLED AS THE SOLE SOURCE FOR CONTRACT PURPOSES.'

IN A STATEMENT DATED AUGUST 10, 1965, MR. MICHAEL G. HARRING, TECHNICAL DIRECTOR, MAINTENANCE READINESS DIVISION, IN REFERRING TO CONVERSATIONS WITH YOUR MR. CAWOOD AND MR. HAGERMAN STATED THAT THEY "WERE REPEATEDLY INFORMED THAT IF THE ARMY DECIDED TO OBTAIN OUTSIDE ASSISTANCE ON PROJECT TAERS THAT IT WOULD BE REQUIRED BY REGULATION TO BE ADVERTISED FOR BIDS.'

IN ANOTHER SIGNED STATEMENT DATED AUGUST 20, 1965, MR. CHARLES D. DILL, CHIEF, USAMB LIAISON OFFICE, IN REFERRING TO CONVERSATIONS WITH YOUR MR. CAWOOD AND MR. HAGERMAN STATED THAT "AT NO TIME DID ISUGGEST OR INFER THE POSSIBILITY OF A SOLE SOURCE CONTRACT WITH ELCOM NOR DID I AT ANY TIME LEND ANY ENCOURAGEMENT TO THEIR PROPOSAL THAT THEY BE CONSIDERED AS A SOLE SOURCE FOR THIS SERVICE" AND THAT "I, ALSO, ADVISED THESE MEN THAT THE DETERMINATION AS TO OBTAINING A CONTRACT WOULD HAVE TO BE MADE BY A CONTRACTING OFFICER.'

IN A SIGNED STATEMENT DATED AUGUST 11, 1965, MR. JAMES GRAHAM, JR., SPECIAL PROJECTS OFFICER, UNITED STATES ARMY MAINTENANCE BOARD, IN REFERRING TO DISCUSSIONS EARLY IN JANUARY 1965 WITH YOUR MR. HAGERMAN STATED THAT "AT NO TIME WAS MR. HAGERMAN TOLD THAT ELCOM WOULD BE REQUESTED TO PERFORM THE STUDY ON A SOLE SOURCE BASIS," BUT THAT "MR. HAGERMAN WAS INFORMED THAT THE USAMB WOULD RECOMMEND TO USASMC THAT SUCH A STUDY BE PERFORMED AND THAT ELCOM COULD BE LISTED AS A SUGGESTED SOURCE.'

MR. WAYNE A. CHANCE, SPECIAL PROJECTS OFFICER, IN A WRITTEN STATEMENT DATED AUGUST 6, 1965, STATED THAT WHILE ON OR ABOUT FEBRUARY 22, 1965, HE HAD BEEN INTRODUCED TO A REPRESENTATIVE OF ELCOM HE HAD NO DISCUSSION WITH ELCOM CONCERNING THIS CONTRACT OR ANY OTHER PROJECT OR CONTRACT.

THE FOREGOING STATEMENTS ARE IN DIRECT CONFLICT WITH YOUR STATEMENTS CONCERNING EXPENDITURES MADE BY YOU INCIDENT TO SENDING YOUR PERSONNEL TO LEXINGTON AND FORT KNOX AT THE REQUEST OF USASMC AND UNITED STATES ARMY MAINTENANCE PERSONNEL AND THE AWARD OF A CONTRACT TO YOUR CONCERN ON A SOLE-SOURCE BASIS. IN THIS REGARD, WE HAVE CONSISTENTLY HELD THAT WHERE THERE ARE DISPUTED QUESTIONS OF FACT, IN THE ABSENCE OF EVIDENCE SUFFICIENTLY CONVINCING TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF THE ADMINISTRATIVE REPORT, THIS OFFICE WILL ACCEPT THE ADMINISTRATIVE REPORT AS ACCURATELY REFLECTING THE DISPUTED FACTS. 37 COMP. GEN. 568; 41 ID. 47; ID. 266; 42 ID. 124, 134. SEE, ALSO, ON THIS POINT LONGWILL V. UNITED STATES, 17 CT.CL. 288 AND CHARLES V. UNITED STATES, 19 CT.CL. 316. INASMUCH AS YOUR STATEMENTS AND CONTENTIONS WITH RESPECT TO THE FOREGOING MATTERS ARE UNSUPPORTED BY ANY EVIDENCE WE FEEL THAT THE PRESUMPTION IN FAVOR OF THE FACTS AS ADMINISTRATIVELY REPORTED HAS NOT BEEN OVERCOME. FURTHERMORE, WE BELIEVE IT WOULD HAVE BEEN IMPROPER FOR ANY OF SUCH OFFICIALS TO HAVE GIVEN YOU ANY "SOLE-SOURCE" ASSURANCE.

AS TO YOUR SECOND CONTENTION IT HAS BEEN REPORTED THAT YOUR COMPANY'S REPRESENTATIVE ATTENDED THE PROPOSAL BRIEFING AT WHICH TIME ALL INTERESTED COMPANIES WERE ADVISED OF THE URGENCY IN GETTING THE STUDY UNDER WAY. ELCOM, OF COURSE, WAS MADE AWARE OF SUCH URGENCY BY THE SHORT DEADLINE ALLOWED FOR SUBMISSION OF PROPOSALS; IN ADDITION ELCOM SHOULD HAVE KNOWN THAT A LARGE NUMBER OF COMPANIES WOULD PROBABLY BE INTERESTED IN SECURING THE CONTRACT BECAUSE OF THE LARGE NUMBER OF COMPANY REPRESENTATIVES PRESENT AT THE PROPOSAL BRIEFING; AND THEREFORE, ELCOM SHOULD HAVE SUBMITTED ITS BEST PROPOSAL INITIALLY WITHOUT EXPECTING A LOT OF NEGOTIATING ON PRICE AND OTHER CONDITIONS. IN THIS REGARD THE RFP PROVIDED THAT:

"AWARD MAY BE MADE WITHOUT DISCUSSION OF PROPOSALS RECEIVED; THEREFORE OFFEROR'S ARE CAUTIONED THAT PROPOSALS SHOULD BE SUBMITTED INITIALLY ON THE MOST FAVORABLE TERMS FROM A PRICE AND TECHNICAL STANDPOINT, WHICH THE OFFEROR CAN SUBMIT TO THE GOVERNMENT.'

AS TO YOUR COMPLAINT CONCERNING THE NEGOTIATIONS BY TELEPHONE IT WAS STATED IN 38 COMP. GEN. 861, 863, THAT:

"* * * WE ARE UNAWARE OF ANY REQUIREMENT, WHETHER BY STATUTE, REGULATION, OR OTHERWISE, WHICH WOULD IMPOSE UPON THE CONTRACTING OFFICER THE DUTY OF CONDUCTING NEGOTIATIONS IN PERSON ACROSS A TABLE FROM THE PROSPECTIVE CONTRACTOR.'

THE CONTRACTING OFFICER'S DUTY IN CONDUCTING NEGOTIATIONS IS TO OBTAIN THE BEST CONTRACT FOR THE UNITED STATES AND THERE IS NO INDICATION THAT THE CONTRACTING OFFICER FAILED TO GIVE ANY OF THE BIDDERS REASONABLE OPPORTUNITY TO SUBMIT THEIR BEST PROPOSAL.

AFTER CAREFUL CONSIDERATION OF YOUR CONTENTIONS AND THE ADMINISTRATIVE REPORTS IN THIS MATTER, WE FIND NO ERROR IN THE PROCUREMENT PROCEDURES. THE PROCUREMENT WAS IN ACCORD WITH THE REGULATIONS CONCERNED IN NEGOTIATED CONTRACT MATTERS AND THE DETERMINATION TO NEGOTIATE IS FINAL.

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