B-161990, AUG. 29, 1967

B-161990: Aug 29, 1967

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OFFEROR WHOSE PROPOSAL WAS RATED EIGHTH AMONG 10 ACCEPTABLE PROPOSALS AND WAS 100 PERCENT LOWER IN PRICE THAN SUCCESSFUL OFFEROR (EBS MANAGEMENT. MUST HAVE PROTEST DENIED IN ABSENCE OF ANY EVIDENCE OF IMPROPER ACTION IN CONNECTION WITH EVALUATION OF PROPOSALS OR BASIS FOR QUESTIONING NEGOTIATION PROCEDURES. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 7. AS RELATED TO THE BUDGETARY LIMITATION OF THE RESEARCH AND DEVELOPMENT PROGRAM" THE CLOSING DATE FOR THE RECEIPT OF PROPOSALS WAS MAY 15. A PREPROPOSAL MEETING WAS HELD ON MAY 1. TO WHICH ALL PROSPECTIVE OFFERORS WERE INVITED. REPRESENTATIVES OF 19 ORGANIZATIONS ATTENDED THE MEETING WHICH WAS HELD TO DISCUSS THE REQUIREMENTS AND ANSWER QUESTIONS REGARDING THE PROPOSED PROCUREMENT.

B-161990, AUG. 29, 1967

BIDS - NEGOTIATION - REJECTION - JUSTIFICATION DECISION TO C-E-I-R, INC. PROTESTING REJECTION OF PROPOSAL FOR DESIGN OF NATIONAL TRAFFIC SAFETY DATA CENTER BY FEDERAL HIGHWAY ADMINISTRATION. OFFEROR WHOSE PROPOSAL WAS RATED EIGHTH AMONG 10 ACCEPTABLE PROPOSALS AND WAS 100 PERCENT LOWER IN PRICE THAN SUCCESSFUL OFFEROR (EBS MANAGEMENT, INC.) MUST HAVE PROTEST DENIED IN ABSENCE OF ANY EVIDENCE OF IMPROPER ACTION IN CONNECTION WITH EVALUATION OF PROPOSALS OR BASIS FOR QUESTIONING NEGOTIATION PROCEDURES.

TO C-E-I-R, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 7, 1967, PROTESTING THE AWARDS MADE UNDER REQUEST FOR PROPOSALS (RFP) NO. 127, ISSUED ON APRIL 21, 1967, BY THE FEDERAL HIGHWAY ADMINISTRATION, UNITED STATES DEPARTMENT OF TRANSPORTATION.

THE SUBJECT RFP SOLICITED PROPOSALS FOR THE PROJECT DEFINITION PHASE OF A STUDY ON THE DESIGN OF THE NATIONAL TRAFFIC SAFETY DATA CENTER. THE RFP CONTAINED THE FOLLOWING EVALUATION CRITERIA:

"A. GENERAL QUALITY AND RESPONSIVENESS OF PROPOSAL

1. COMPLETENESS AND THOROUGHNESS

2. RECOGNITION OF OVERALL CONCEPT AND OBJECTIVE

3. RESPONSIVENESS TO REQUIREMENTS, TERMS CONDITIONS, AND TIME OF PERFORMANCE

4. CONSIDERATION OF RELATED FACTORS

5. PHYSICAL FACILITIES, IF APPLICABLE

"B. THE QUALIFICATIONS OF STAFF TO BE ASSIGNED TO THE PROJECT

"C. COSTS

1. AS RELATED TO LEVEL OF EFFORT

2. AS RELATED TO THE OVERALL RESEARCH AND DEVELOPMENT

3. AS RELATED TO THE BUDGETARY LIMITATION OF THE RESEARCH AND DEVELOPMENT PROGRAM" THE CLOSING DATE FOR THE RECEIPT OF PROPOSALS WAS MAY 15, 1967, A PREPROPOSAL MEETING WAS HELD ON MAY 1, TO WHICH ALL PROSPECTIVE OFFERORS WERE INVITED. REPRESENTATIVES OF 19 ORGANIZATIONS ATTENDED THE MEETING WHICH WAS HELD TO DISCUSS THE REQUIREMENTS AND ANSWER QUESTIONS REGARDING THE PROPOSED PROCUREMENT. ELEVEN PROPOSALS WERE RECEIVED AND DURING THE EVALUATION PROCESS, TEN PROPOSALS WERE DETERMINED TO BE VALID IN VARYING DEGREES OF ACCEPTABILITY AND ONE PROPOSAL WAS UNACCEPTABLE. OF THE ACCEPTABLE PROPOSALS, THREE WERE FOUND TO BE SUPERIOR, FIVE WERE RATED ACCEPTABLE, AND TWO WERE RATED MARGINAL. AWARDS WERE MADE TO EBS MANAGEMENT, INC. IN THE SUM OF $199,775 AND TO THE SYSTEMS DEVELOPMENT CORPORATION IN THE AMOUNT OF $92,200, BECAUSE THEIR PROPOSALS WERE CONSIDERED TO BE FAIR AND REASONABLY PRICED AND WERE RATED TECHNICALLY MOST ACCEPTABLE BY THE EVALUATION PANEL.

IN YOUR LETTER OF JULY 7, YOU STATE THAT YOU SUBMITTED A TIMELY AND TECHNICALLY RESPONSIVE PROPOSAL AT A PRICE OF $99,578. THEREFORE, YOU CONTEND THAT SINCE THE AWARD MADE TO EBS MANAGEMENT, INC. WAS AT A PRICE IN EXCESS OF 100 PERCENT OF THE PRICE OFFERED BY YOU, THE REJECTION OF YOUR PROPOSAL WAS IMPROPER AND NOT IN THE BEST INTEREST OF THE GOVERNMENT.

THE ADMINISTRATIVE OFFICE HAS INFORMED US THAT YOUR PROPOSAL WAS RATED EIGHTH AMONG THE GROUP OF 10 ACCEPTABLE PROPOSALS RECEIVED, FALLING LAST WITHIN THE GROUP OF FIVE PROPOSALS RATED AS ACCEPTABLE. IT IS REPORTED THAT THE PROPOSED TREATMENT BY YOU OF THE ANALYTICAL AND SYSTEM ASPECTS OF THE REQUIREMENT WAS NOT AS EXTENSIVE AS THAT PROPOSED BY HIGHER RATED PROPOSALS. ALSO, YOUR STAFFING WAS RATED AS ONLY MODERATELY ACCEPTABLE. IT IS ALSO REPORTED THAT THE AWARDS WERE NOT MADE ON THE BASIS OF A CERTAIN NUMBER OF MAN-MONTHS OF EFFORT ALONE. ALTHOUGH THE RFP ESTIMATED 35 MAN-MONTHS OF EFFORT WOULD BE NEEDED TO ACCOMPLISH THE WORK THE ADMINISTRATIVE OFFICE WAS NOT SEEKING THAT SPECIFIC LEVEL OF EFFORT PER SE, WITHOUT REGARD FOR ADEQUATE APPROACHES TO THE PROBLEM AND PROBABILITY OF SUCCESS OF THE METHODOLOGY OFFERED.

WHILE PRICE IS A FACTOR FOR EVALUATION, AS ADMITTED BY YOU, IT IS NOT NECESSARILY THE DOMINANT FACTOR FOR CONSIDERATION IN MAKING AN AWARD OF A NEGOTIATED CONTRACT FOR THE TYPE OF SERVICE HERE INVOLVED. IN THIS PROCUREMENT, A COMPREHENSIVE TECHNICAL EVALUATION WAS PERFORMED AND A POINT SYSTEM OF EVALUATION CRITERIA WAS ESTABLISHED TO WEIGH THE PROPOSALS AGAINST THE REQUIREMENTS OF THE RFP. A PANEL COMPOSED OF FIVE NATIONALLY KNOWN EVALUATORS INDEPENDENTLY RATED EACH OF THE PROPOSALS AND THE PANEL WAS UNANIMOUS IN RANKING EBS MANAGEMENT, INC. AS NUMBER ONE. ALTHOUGH THE PROPOSAL OF YOUR FIRM WAS WITHIN THE ACCEPTABLE TECHNICAL RANGE IT WAS FOUND THAT IT DID NOT OFFER AS MUCH DEPTH, QUALITY AND PROMISE AS DID THE PROPOSALS WHICH WERE ACCEPTED.

IN NEGOTIATED PROCUREMENTS, THE RULES OF FORMALLY ADVERTISED COMPETITIVE BIDDING, SUCH AS THE REQUIREMENT FOR AWARD TO THE LOWEST RESPONSIVE BIDDER, ARE NOT APPLICABLE AND THE NEGOTIATION AUTHORITY MAY LEGALLY TAKE INTO CONSIDERATION ALL FACTORS DEEMED ESSENTIAL TO THE ACCOMPLISHMENT OF A PROCUREMENT. 40 COMP. GEN. 508.

THERE HAS NOT BEEN PRESENTED INFORMATION WHICH COULD BE REGARDED AS EVIDENCING ANY IMPROPER ACTION ON THE PART OF THE CONTRACTING OFFICE IN CONNECTION WITH ITS EVALUATION OF PROPOSALS UNDER THE RFP, AND WE DO NOT FIND ANYTHING IN THE RECORD BEFORE OUR OFFICE WHICH WOULD WARRANT OUR QUESTIONING THE NEGOTIATION PROCEDURES USED OR THE AWARDS MADE TO THE TWO PROPOSERS WHOSE PROPOSALS WERE DETERMINED TO BE MOST ADVANTAGEOUS TO THE GOVERNMENT.

SINCE THE AWARDS WERE MADE IN GOOD FAITH IT MUST BE CONCLUDED THAT THE CONTRACTS ARE VALID AND BINDING AND, THEREFORE, YOUR PROTEST IS DENIED.