B-159032, AUG. 1, 1966

B-159032, AUG. 1, 1966

TO RADIATION TECHNOLOGY, INC.:

REFERENCE IS MADE TO A COPY OF YOUR LETTER OF APRIL 20, 1966, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE TRAVELERS RESEARCH CENTER, INC., UNDER REQUEST FOR PROPOSALS (RFP) NO. 66-23, FOR ABSTRACTING MEDICAL INFORMATION FROM SOURCE DOCUMENTS, AND TRANSPOSING THE INFORMATION TO CODE SHEETS IN ACCORDANCE WITH FOOD AND DRUG ADMINISTRATION (FDA) SPECIFICATIONS DATED FEBRUARY 1, 1966. THE RFP WAS ISSUED ON FEBRUARY 9, 1966, BY THE FDA, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, AND THE REQUIREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY ON FEBRUARY 3, 1966.

THE RFP SPECIFICALLY PROVIDED THAT THE RESPONSIVENESS OF PROPOSALS WOULD BE DETERMINED BY THE SUBMISSION OF AN ACCEPTABLE STATEMENT OF FACTS IN DETAIL AS TO PREVIOUS EXPERIENCE OF THE OFFEROR IN PERFORMING SIMILAR OR COMPARABLE WORK IN THE BIOLOGICAL OR MEDICAL FIELD AND AS TO HIS HAVING A COMPETENT BUSINESS AND TECHNICAL ORGANIZATION, FINANCIAL RESOURCES, AND FACILITIES TO PERFORM THE CONTEMPLATED WORK. IN ADDITION, PROSPECTIVE CONTRACTORS WERE REQUESTED TO ANSWER ALL QUESTIONS ON FORM HEW-333, CONTRACTOR'S PROPOSAL.

TEN PROPOSALS WERE RECEIVED PRIOR TO THE CLOSING DATE OF MARCH 8, 1966. A FOUR-MEMBER REVIEW COMMITTEE, WHICH INCLUDED THE PROJECT OFFICER WAS ESTABLISHED FOR EVALUATION OF THE 10 SUBMITTED PROPOSALS.

AMONG THE FACTORS CONSIDERED IN EVALUATING PROPOSALS WERE: (1) TECHNICAL COMPETENCE OF ORGANIZATION; (2) GENERAL UNDERSTANDING OF THE TASK; (3) PEOPLE TO DO THE WORK; (4) COMPETENCE OF STAFF DOING JOB AND (5) COST. THE 10 PROPOSALS RECEIVED, YOUR PROPOSAL WAS RATED EIGHTH.

THE RFP PROVIDED THAT "IT IS CONTEMPLATED THAT A CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE OFFEROR WHOSE PROPOSAL WILL BE THE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. THE RIGHT IS RESERVED TO ACCEPT OTHER THAN LOWEST PROPOSAL AND TO REJECT ANY OR ALL PROPOSALS.' YOUR PROPOSAL WAS DETERMINED TO BE NONRESPONSIVE TO THE RFP BECAUSE IT LACKED SUFFICIENT DETAIL. IT IS STATED THAT YOUR PERSONNEL STATEMENT WAS NOT SUFFICIENT AND YOUR COST ESTIMATE UNREALISTICALLY LOW. THE EVALUATION COMMITTEE THOUGHT THAT IF YOUR PROPOSAL WAS ACCEPTED, SERIOUS DOUBT WOULD EXIST AS TO THE QUALITY OF WORK PERFORMED.

THE RECORD BEFORE US INDICATES THAT THE CAPABILITY OF THE CONTRACTOR TO PERFORM THE WORK WAS OF PRIMARY CONCERN. AT THE OFFERORS' MEETING HELD ON FEBRUARY 24, 1966, WHICH WAS ATTENDED BY A REPRESENTATIVE OF YOUR COMPANY, IT WAS STATED THAT PRICE IS SECONDARY AS COMPARED TO CONTRACTOR CAPABILITY. IT IS REPORTED THAT BECAUSE OF THE NATURE AND CHARACTER OF THE REQUIRED SERVICES, IT WAS NECESSARY TO SELECT A COMPETENT ORGANIZATION WITH EXPERIENCED PERSONNEL TO PERFORM THOSE SERVICES. AN EXAMINATION OF THE REQUIRED SERVICES INDICATES THE PARTICULAR NEED FOR ACCURACY AND QUALITY CONTROL IN THE PERFORMANCE OF THE WORK. AS POINTED OUT IN THE SPECIFICATIONS ATTACHED TO THE RFP, THE FOOD AND DRUG ADMINISTRATION IS ESTABLISHING A COMPUTERIZED SCIENCE INFORMATION SYSTEM. IT IS REPORTED THAT INACCURACIES IN THE ABSTRACTING AND CODING OF INFORMATION FROM REPORTS OF ADVERSE DRUG REACTIONS WOULD OBVIOUSLY IMPAIR THE UTILITY AND THE VALIDITY OF THIS SYSTEM; DISTORTED STATISTICS WOULD BE PRODUCED FROM INACCURATE INFORMATION, AND IMPORTANT DECISIONS MIGHT BE MADE ON THE BASIS OF ERRONEOUS DATA. THE SIGNIFICANCE OF AVOIDING ERRORS IN THE WORK WAS STRESSED AT THE OFFERORS' MEETING REFERRED TO ABOVE.

IT IS FOR THESE REASONS THAT THE RFP SPECIFICALLY PROVIDED THAT THE RESPONSIVENESS OF PROPOSALS WOULD BE DETERMINED BY THE SUBMISSION OF ACCEPTABLE STATEMENTS OF FACTS IN DETAIL AS TO THE EXPERIENCE OF THE OFFEROR, INCLUDING QUALIFICATIONS OF THE KEY PERSONNEL WHO WOULD BE ASSIGNED TO THE CONTRACT WORK, IN PERFORMING SIMILAR WORK IN THE BIOLOGICAL OR MEDICAL FIELDS.

IT IS FURTHER REPORTED THAT YOUR PROPOSAL WAS TECHNICALLY INADEQUATE IN THAT YOU FAILED TO SUBMIT SUFFICIENT DETAIL TO ENABLE THE CONTRACTING OFFICER TO DETERMINE WHETHER YOUR COMPANY WAS COMPETENT TO PERFORM THE REQUIRED SERVICES. YOUR PROPOSAL PROVIDED THAT THE WORK WOULD BE PERFORMED UNDER THE SUPERVISION OF MR. NORMAN C. WITBECK, DIRECTOR OF LITERATURE SERVICES, ASSISTED BY DR. JAMES A. MOCK AND DR. FRANKLIN T. BRAYER. THE ONLY DESCRIPTION OF THE BACKGROUND OF THESE INDIVIDUALS CONTAINED IN YOUR PROPOSAL WAS THAT MR. WITBECK HAD 20 YEARS OF PROFESSIONAL EXPERIENCE IN THE "FIELD OF LITERATURE SERVICES" AND THAT DR. MOCK AND DR. BRAYER WERE "WELL KNOWN IN LOCAL MEDICAL CIRCLES.' THE PHRASE "FIELD OF LITERATURE SERVICES" WAS CONSIDERED TOO BROAD A TERM TO ENABLE A DETERMINATION TO BE MADE AS TO WHETHER SUCH SERVICES INCLUDE EXPERIENCE AND COMPETENCE IN COMPARABLE WORK IN THE BIOLOGICAL OR MEDICAL FIELDS AS REQUIRED BY THE RFP.

IT WAS ADMINISTRATIVELY DETERMINED THAT THE EXHIBITS SUBMITTED WITH YOUR PROPOSAL FAIL TO SUBSTANTIATE YOUR ALLEGATION THAT YOUR FIRM HAS PERFORMED EXACTLY EQUIVALENT WORK IN THE PAST UNDER GOVERNMENT CONTRACT, A REVIEW OF YOUR EXHIBITS INDICATING THAT THE EXPERIENCE OF YOUR COMPANY AND ITS KEY PERSONNEL IS NOT IN ABSTRACTING AND CODING OF INFORMATION IN THE BIOLOGICAL OR MEDICAL FIELDS. EXHIBIT "A" TO YOUR PROPOSAL WAS CONSIDERED TO BE MERELY A HANDBOOK OF MEDICAL RADIOISOTOPE PROCEDURES WHICH CLEARLY DID NOT INVOLVE ABSTRACTING AND CODING OF DATA, EXHIBIT "B" IS SIMPLY A NUMBER OF ACCIDENT REPORT FORMS AND EXHIBIT "C" APPARENTLY INVOLVED THE ABSTRACTING OF ENGINEERING DATA. THUS, THE CONTRACTING OFFICER CONCLUDED THAT THESE EXHIBITS FAIL TO ESTABLISH, AS REQUIRED BY THE RFP, THAT YOUR COMPANY WAS EXPERIENCED IN ABSTRACTING AND CODING DATA IN THE BIOLOGICAL OR MEDICAL FIELDS.

THE SELECTION OF THE CONTRACTOR BEST QUALIFIED FOR AWARD IN A NEGOTIATED PROCUREMENT IS TO BE MADE BY THE ADMINISTRATIVE OFFICE CONCERNED IN THE EXERCISE OF ITS SOUND JUDGMENT AS TO THE BEST INTERESTS OF THE GOVERNMENT. B-149344, DECEMBER 26, 1962. THE LAW PERTAINING TO FORMALLY ADVERTISED COMPETITIVE BIDDING REQUIRING THAT A CONTRACT BE AWARDED TO THE LOWEST RESPONSIBLE BIDDER IS NOT REQUIRED TO BE APPLIED TO NEGOTIATED PROCUREMENT. IN THE LATTER SITUATION, THE CONTRACTING AGENCY IN ITS DISCRETION HAS AUTHORITY TO RELY UPON FACTORS OTHER THAN PRICE AND TO MAKE AN AWARD TO OTHER THAN THE LOWEST RESPONSIBLE BIDDER. SEE B-155983, MARCH 31, 1965. OUR OFFICE HAS UPHELD THE AWARD OF A NEGOTIATED CONTRACT TO A PROPONENT OTHER THAN THE PROPONENT WHO SUBMITTED THE BEST PRICE ON THE BASIS OF OTHER FACTORS. B-147394, SEPTEMBER 4, 1962.

THE ADMINISTRATIVE REPORT INDICATES THAT YOUR PRICE OF $18,000 WAS UNREASONABLY LOW. ON THE BASIS OF THE FDA'S ESTIMATE, BASED UPON IN HOUSE EXPERIENCE, THAT 2 TO 2 1/2 REPORTS PER HOUR COULD BE ABSTRACTED AND CODED BY EXPERIENCED PERSONNEL, IT WAS ESTIMATED THAT THE COST OF LABOR ALONE FOR ACCOMPLISHING THE REQUIRED WORK WAS $27,000, TO WHICH MUST BE ADDED SUCH ITEMS AS OVERHEAD AND PROFIT. FDA'S ESTIMATE OF THE PRICE OF THE CONTRACT TO BE AWARDED WAS, THEREFORE, APPROXIMATELY $54,000. THE PROPOSALS RECEIVED RANGED FROM A LOW OF $18,000 TO A HIGH OF $128,493.53 AND THERE IS NO EVIDENCE THAT THE PRICE PROPOSED BY THE TRAVELERS RESEARCH CENTER, C., WAS EXCESSIVE. YOUR PROPOSAL DID NOT CONTAIN A DETAILED BREAKDOWN OF YOUR COSTS, AS REQUIRED ON PAGE 5 OF FORM HEW-333. IN LIEU THEREOF, YOU STATED THAT A DETAILED BREAKDOWN OF YOUR COSTS, TOGETHER WITH A CERTIFICATE OF CURRENT COST AND PRICING DATA, WOULD BE PROVIDED DURING ANY NEGOTIATIONS SUBSEQUENT TO EVALUATION OF YOUR PROPOSAL. YOUR ATTENTION IS DIRECTED TO THE PROVISION IN THE RFP WHICH PROVIDES THAT "THE GOVERNMENT RESERVES THE RIGHT TO MAKE AN AWARD WITHOUT DISCUSSION OF PROPOSALS RECEIVED. PROPOSALS SHOULD, THEREFORE BE SUBMITTED ON THE MOST FAVORABLE TERMS TO THE GOVERNMENT FROM PRICE AND TECHNICAL STANDPOINTS.' THIS STATEMENT IS IN CONFORMITY WITH SECTION 1-3.805-1 (A) (5) OF THE FEDERAL PROCUREMENT REGULATIONS. ACCORDINGLY, YOU WERE ON NOTICE THAT AN AWARD MIGHT BE MADE WITHOUT DISCUSSION OF PROPOSALS RECEIVED. YOU CONTEND THAT THE WORK COVERED BY THIS PROCUREMENT CONSTITUTES A RELATIVELY ROUTINE CODING OF INFORMATION FOR DATA PROCESSING AND THAT IT WAS SO WELL DEFINED IN THE WORK SPECIFICATION THAT THE PROCUREMENT MIGHT WELL HAVE BEEN CONDUCTED BY FORMAL ADVERTISING. THE CONTRACTING OFFICER, IN HIS FINDINGS AND DETERMINATION, STATED THAT THE PROPOSED CONTRACT WAS FOR SERVICES FOR WHICH IT WAS IMPRACTICABLE TO SECURE COMPETITION BY FORMAL ADVERTISING, AND THEREFORE THE SERVICES MAY BE CONTRACTED FOR BY NEGOTIATION PURSUANT TO 41 U.S.C. 252 (C) (10) AS IMPLEMENTED BY SECTION 1-3.210 OF THE FEDERAL PROCUREMENT REGULATIONS. THE CONTRACTING OFFICER STATED THAT IT WAS IMPOSSIBLE TO DRAFT FOR FORMAL ADVERTISING SPECIFICATIONS WHICH WOULD ASSURE THE NECESSARY HIGH QUALITY AND RELIABILITY OF THE WORK. THEREFORE, IN VIEW OF THE CONTRACTING OFFICER'S FINDING AND THE FACT THAT ADEQUATE COMPETITION WAS OBTAINED, NO BASIS EXISTS TO QUESTION THE ADMINISTRATIVE DETERMINATION TO NEGOTIATE THE CONTRACT. SEE 40 COMP. GEN. 508; B-146237, AUGUST 29, 1961.

YOU STATE THAT NO UNIQUE TECHNICAL APPROACH WAS INVOLVED IN THIS PROCUREMENT, THAT NONE WAS REQUESTED IN THE SOLICITATION, AND THE INTRODUCTION OF ANY SUCH FACTOR IN THE EVALUATION OF THE PROPOSALS RECEIVED WOULD CONSTITUTE IMPROPER CONTRACTING PROCEDURE. ALTHOUGH A METHOD OF APPROACH WAS NOT REQUIRED BY THE RFP, PROSPECTIVE CONTRACTORS WERE REQUIRED TO SUBMIT SUFFICIENT INFORMATION TO ENABLE THE CONTRACTING OFFICER TO DETERMINE WHETHER AN OFFEROR WAS COMPETENT TO PERFORM THE REQUIRED SERVICES. EIGHT OF THE TEN OFFERORS CHOSE TO SUBMIT A METHOD OF APPROACH OR PLAN OF OPERATION FOR ACCOMPLISHING THE REQUIRED SERVICES, APPARENTLY FOR THE PURPOSE OF AIDING THE CONTRACTING OFFICER IN DETERMINING THE COMPETENCE OF THE OFFERORS. THERE IS NO EVIDENCE THAT YOUR PROPOSAL WAS REJECTED FOR FAILURE TO SUBMIT A METHOD OF OPERATION.

YOU STATE THAT A REPRESENTATIVE OF YOUR COMPANY WAS GIVEN INFORMATION INDICATING THAT EVALUATION OF PROPOSALS WAS COMPLETED WITHIN 2 DAYS AFTER RECEIPT. YOU THEREFORE QUESTION WHETHER OR NOT AN ADEQUATE AND IMPARTIAL EVALUATION WAS CONDUCTED. THE FACTS INDICATE THAT EVALUATION WAS NOT COMPLETED UNTIL MARCH 18, 10 DAYS AFTER RECEIPT OF ALL PROPOSALS. THE TECHNICAL EVALUATION BY A TEAM OF FOUR PROFESSIONAL PERSONNEL WAS BEGUN ON MARCH 8 AND WAS COMPLETED ON MARCH 15; THE CONTRACTING OFFICER'S EVALUATION WAS COMPLETED ON MARCH 18. THE RECORD INDICATES THAT YOUR REPRESENTATIVE WAS TOLD ON OR ABOUT MARCH 10, THAT EVALUATION WAS IN PROGRESS AND NOT THAT IT HAD BEEN COMPLETED. THERE IS NO INDICATION THAT THE TIME TAKEN IN EVALUATING THE PROPOSALS WAS INADEQUATE OR THAT THE EVALUATION WAS CONDUCTED IN OTHER THAN AN IMPARTIAL MANNER.

SINCE THIS PROCUREMENT WAS MADE UNDER NEGOTIATED PROCEDURES PERMITTING PROCUREMENT PERSONNEL A BROAD RANGE OF DISCRETION, WE SEE NO LEGAL OBJECTION TO THE AWARD MADE. ACCORDINGLY, YOUR PROTEST IS DENIED.