B-160739, MAY 2, 1967

B-160739: May 2, 1967

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TO ADVANCED FOUNDATION ENGINEERING INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 17. WE ARE ADVISED THAT THE EVALUATION BOARD FOUND THAT ALL THREE OF THE RESPONDING FIRMS WERE PROFESSIONALLY QUALIFIED TO PERFORM THE SUBJECT CONTRACT. NIKOLA WAS RECOMMENDED AS THE FIRST CHOICE FOR AWARD BECAUSE: 1. THE TECHNICAL APPROACH SUGGESTED IN NIKOLA'S PROPOSAL WAS BETTER ORGANIZED AND PRESENTED. THE CONTRACTING OFFICER COMMENCED NEGOTIATIONS WITH NIKOLA WHICH CULMINATED IN THE AWARD OF THE SUBJECT PURCHASE ORDER AT A PRICE THAT WAS DETERMINED TO BE FAIR AND REASONABLE. YOUR PROTEST RAISES A QUESTION IN REGARD TO THE LEGALITY OF THE EVALUATION BOARD'S SELECTION OF NIKOLA AS BEST QUALIFIED PROPOSER INASMUCH AS THAT DECISION WAS NOT BASED UPON AN APPLICATION OF THE USUAL CRITERIA USED TO DETERMINE THE QUALIFICATIONS OF PROSPECTIVE CONTRACTORS.

B-160739, MAY 2, 1967

TO ADVANCED FOUNDATION ENGINEERING INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 17, 1967, PROTESTING AGAINST THE PROCUREMENT AND EVALUATION TECHNIQUES UTILIZED BY THE LOS ANGELES AREA OFFICE OF THE FEDERAL AVIATION AGENCY, AND THE SUBSEQUENT AWARD OF PURCHASE ORDER NO. 67-15745 TO H.C. NIKOLA ASSOCIATES, INCORPORATED. THE PURCHASE ORDER DATED OCTOBER 7, 1966, PROVIDED FOR SOIL ANALYSIS IN CONNECTION WITH THE CONSTRUCTION OF AN AIR TRAFFIC CONTROL TOWER IN LONG BEACH, CALIFORNIA, AT A FIXED PRICE OF $1,615, OR $365 MORE THAN YOUR OFFER.

IT HAS BEEN REPORTED TO US THAT AS A RESULT OF INQUIRIES MADE DURING THE WEEK OF AUGUST 22, 1966, THREE ENGINEERING FIRMS, INCLUDING YOURS SUBMITTED PROPOSALS STATING WITH VARYING DEGREES OF SPECIFICITY THE AMOUNT AND TYPE OF WORK ANTICIPATED TO BE NECESSARY FOR SUCCESSFUL COMPLETION OF THE SOIL ANALYSIS. A PANEL COMPRISED OF FOUR GOVERNMENT ENGINEERS AND THE CONTRACTING OFFICER EVALUATED THESE PROPOSALS ON THE BASIS OF THE FOLLOWING CRITERIA:

1. TECHNICAL APPROACH TO THE PROBLEM;

2. PROFESSIONAL QUALIFICATIONS AND BACKGROUND;

3. GENERAL APPEARANCE OF FACILITIES; AND

4. EXPERIENCE.

WE ARE ADVISED THAT THE EVALUATION BOARD FOUND THAT ALL THREE OF THE RESPONDING FIRMS WERE PROFESSIONALLY QUALIFIED TO PERFORM THE SUBJECT CONTRACT, HOWEVER, NIKOLA WAS RECOMMENDED AS THE FIRST CHOICE FOR AWARD BECAUSE:

1. THE TECHNICAL APPROACH SUGGESTED IN NIKOLA'S PROPOSAL WAS BETTER ORGANIZED AND PRESENTED; AND

2. DOCTOR H. C. NIKOLA HAS A PH.D. IN ENGINEERING AND 14 YEARS EXPERIENCE IN AIRPORT DESIGN.

PURSUANT TO THE RECOMMENDATION OF THE EVALUATION BOARD, THE CONTRACTING OFFICER COMMENCED NEGOTIATIONS WITH NIKOLA WHICH CULMINATED IN THE AWARD OF THE SUBJECT PURCHASE ORDER AT A PRICE THAT WAS DETERMINED TO BE FAIR AND REASONABLE.

YOUR PROTEST RAISES A QUESTION IN REGARD TO THE LEGALITY OF THE EVALUATION BOARD'S SELECTION OF NIKOLA AS BEST QUALIFIED PROPOSER INASMUCH AS THAT DECISION WAS NOT BASED UPON AN APPLICATION OF THE USUAL CRITERIA USED TO DETERMINE THE QUALIFICATIONS OF PROSPECTIVE CONTRACTORS. SPECIFICALLY, YOU CONTEND THAT (1) YOU OFFERED TO PERFORM MORE WORK IN CONNECTION WITH THE PERFORMANCE OF THE CONTRACT THAN DID NIKOLA; (2) YOUR FIRM IS LOCATED ADJACENT TO THE CONTRACT SITE, WHEREAS NIKOLA IS SEVERAL MILES AWAY; AND (3) YOUR COST ESTIMATE WAS TWENTY-NINE PERCENT LOWER THAN THE AWARDED CONTRACT PRICE.

SECTION 302 (C) (3) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 41 U.S.C. 252 (C) (3), PROVIDES THAT AGENCIES MAY NEGOTIATE PURCHASES AND CONTRACTS WITHOUT ADVERTISING IF THE AGGREGATE AMOUNT DOES NOT EXCEED $2,500. UNDER THIS AUTHORITY, CONTRACTING OFFICIALS MAY AWARD CONTRACTS OR PURCHASE ORDERS IN AMOUNTS NOT EXCEEDING $2,500 TO THE BEST ADVANTAGE OF THE GOVERNMENT, AND FACTORS OTHER THAN PRICE OR MERE ABILITY TO PERFORM THE CONTRACT PROPERLY MAY BE TAKEN INTO CONSIDERATION. SEE FEDERAL PROCUREMENT REGULATIONS 1-3.6 WHICH PRESCRIBES THE PROCEDURES FOR SMALL PURCHASES.

BECAUSE OF THE NATURE OF THE PURCHASE ORDER, IT WAS FELT THAT NIKOLA WAS THE BEST QUALIFIED, WITHIN REASON AS TO PRICE, OF THE INTERESTED FIRMS. THEREFORE, PRICE ALONE WAS PROPERLY NOT CONSIDERED BY THE EVALUATION BOARD TO BE THE OVERRIDING FACTOR. THE OTHER TWO BASES OF YOUR PROTEST--- LOCATION, AND SCOPE OF WORK--- WERE ALSO CONSIDERED, BUT THEY WERE NOT DEEMED TO BE SUFFICIENT TO OVERCOME THE DETERMINATION THAT NIKOLA WAS THE BEST QUALIFIED TO PERFORM THE WORK.

IN THE INSTANT CASE, THE CONTRACTING OFFICIALS EVALUATED THE PROPOSALS AND AWARDED THE PURCHASE ORDER IN A MANNER THAT THEY FELT WAS MOST ADVANTAGEOUS TO THE GOVERNMENT. INASMUCH AS THE SELECTION OF THE CONTRACTOR WAS MADE PURSUANT TO THE CITED STATUTORY PROVISIONS AND TO PROCEDURES WHICH UNDER THE CIRCUMSTANCES WERE FAIR AND REASONABLE, WE FIND NO BASIS TO QUESTION THE AWARD MADE.