B-162192, SEP. 28, 1967

B-162192: Sep 28, 1967

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LOW PROPOSAL WHICH WAS DETERMINED TO BE TECHNICALLY UNACCEPTABLE FOR PROCUREMENT NEGOTIATED UNDER 10 U.S.C. 2304 (A) (10) ON BASIS THAT IT DID NOT CONTAIN ANALYSIS TO THE PROBLEM TO BE STUDIED NOR INFORMATION REGARDING AVAILABILITY AND COMPETENCE OF THE PERSONNEL TO BE USED WAS PROPERLY REJECTED. FACT THAT PRICE WAS LOWEST SUBMITTED DOES NOT AUTOMATICALLY BRING IT WITHIN A COMPETITIVE RANGE IN VIEW OF TECHNICAL UNACCEPTABILITY. STATILE: REFERENCE IS MADE TO YOUR TELEFAX COMMUNICATION DATED AUGUST 3. AS FOLLOWS: "I HEREBY RAISE FORMAL PROTEST TO RFQN00600-67-Q 0339 US NAVY PURCHASING OFFICE MY QUOTATION WAS 9. SINCE I WAS LOW BID I WOULD LIKE TO KNOW WHY I WAS NOT CALLED IN TO DISCUSS THIS PRIOR TO ISSUANCE OF THIS AWARD AND FURTHER WHY I WAS NOT SELECTED DUE TO BEING LOW BID.'.

B-162192, SEP. 28, 1967

BIDS - NEGOTIATION - COMPETITIVE RANGE DETERMINATION DECISION TO PETER J. STATILE CONCERNING REJECTION OF LOW PROPOSAL FOR VESSEL CONVERSION FEASIBILITY STUDY BY NAVAL PURCHASING OFFICE. LOW PROPOSAL WHICH WAS DETERMINED TO BE TECHNICALLY UNACCEPTABLE FOR PROCUREMENT NEGOTIATED UNDER 10 U.S.C. 2304 (A) (10) ON BASIS THAT IT DID NOT CONTAIN ANALYSIS TO THE PROBLEM TO BE STUDIED NOR INFORMATION REGARDING AVAILABILITY AND COMPETENCE OF THE PERSONNEL TO BE USED WAS PROPERLY REJECTED. FACT THAT PRICE WAS LOWEST SUBMITTED DOES NOT AUTOMATICALLY BRING IT WITHIN A COMPETITIVE RANGE IN VIEW OF TECHNICAL UNACCEPTABILITY.

TO MR. PETER J. STATILE:

REFERENCE IS MADE TO YOUR TELEFAX COMMUNICATION DATED AUGUST 3, 1967, AS FOLLOWS: "I HEREBY RAISE FORMAL PROTEST TO RFQN00600-67-Q 0339 US NAVY PURCHASING OFFICE MY QUOTATION WAS 9,7261.00 (SIC) AND FIRM RECEIVING THE AWARD QUOTATION 101940.00. SINCE I WAS LOW BID I WOULD LIKE TO KNOW WHY I WAS NOT CALLED IN TO DISCUSS THIS PRIOR TO ISSUANCE OF THIS AWARD AND FURTHER WHY I WAS NOT SELECTED DUE TO BEING LOW BID.'

THE REQUEST FOR QUOTATION COVERED A FEASIBILITY AND PRACTICALITY STUDY TO CONVERT SALVAGE VESSELS ARSD 1 AND 2 TO SALVAGE BARGES YRSD 1 AND 2. ADDITION, THE SOLICITATION PROVIDED FOR OPTION ITEMS COVERING THE PREPARATION OF PLANS, SPECIFICATIONS, AND DRAWINGS; AND FOR MONITORING AND INSPECTING THE SHIPYARD CONVERSION WORK IN THE EVENT THE CONVERSION PROVED FEASIBLE AND PRACTICAL.

THE CRITERIA FOR EVALUATION OF TECHNICAL PROPOSALS WAS SET OUT IN THE SOLICITATION DOCUMENT, AS FOLLOWS: "CRITERIA FOR EVALUATION "OFFERORS ARE TO SUBMIT A SEPARATE PRICE PROPOSAL, TOGETHER WITH ACCOMPANYING COST/PRICE BREAKDOWN ON DD FORM 633, AND A TECHNICAL PROPOSAL. THE TECHNICAL PROPOSAL SHALL NOT CONTAIN ANY PRICING DATA. IT IS REQUESTED THAT 3 COPIES OF THE TECHNICAL PROPOSALS BE SUBMITTED. THE FOLLOWING CRITERIA WILL BE USED IN EVALUATING TECHNICAL PROPOSALS: 1. THE CONTRACTOR'S UNDERSTANDING OF THE SCOPE OF WORK AS SHOWN BY THE ANALYSIS AND TECHNICAL APPROACH PROPOSED. 2. AVAILABILITY AND COMPETENCE OF TECHNICAL PERSONNEL PROPOSED FOR THIS PROJECT, AS DEMONSTRATED BY THEIR RELATED EXPERIENCE. 3. THE CONTRACTOR'S CAPABILITY TO MEET THE DESIRED DELIVERY SCHEDULE. THE CONTRACTOR'S WILLINGNESS TO DEVOTE HIS RESOURCES TO THE PROPOSED PROJECT.'

IN ADDITION, PARAGRAPH 3 OF THE SPECIFICATIONS PROVIDED THAT "EACH TECHNICAL PROPOSAL SUBMITTED SHALL CONTAIN THE NAMES AND EXPERIENCE OF KEY PERSONNEL AVAILABLE TO BE ASSIGNED TO THIS PROJECT. A TIME SCHEDULE RELATING TO MAJOR MILESTONE OBJECTIVES SHOWING THE TIMELY COMPLETION SHALL ALSO BE A PART OF THE PROPOSAL.' THE SOLICITATION WAS ISSUED ON MAY 1, 1967, AND REQUIRED THAT SEPARATE COST/PRICE PROPOSALS AND TECHNICAL PROPOSALS BE SUBMITTED TO THE NAVAL PURCHASING OFFICE, WASHINGTON, D.C., ON OR BEFORE CLOSE OF BUSINESS ON MAY 31, 1967.

THE SUBJECT PROCUREMENT WAS A NEGOTIATED PROCUREMENT UNDER THE AUTHORITY OF 10 U.S.C. 2304 (A) (10), AND NOT A FORMALLY ADVERTISED PROCUREMENT. 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 PROCUREMENTS. 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. B-155983, MARCH 31, 1965. IF EVALUATION IS NOT MADE ON THE BASIS OF PRICE ALONE, IT IS NOT IMPROPER. 40 COMP. GEN. 508. OUR OFFICE HAS UPHELD THE AWARD OF A NEGOTIATED CONTRACT TO A PROPOSAL OTHER THAN THE PROPONENT WHO SUBMITTED THE BEST PRICE ON THE BASIS OF OTHER FACTORS. B-147394, SEPTEMBER 4, 1962.

IT IS REPORTED THAT NINE PROPOSALS WERE RECEIVED AND OPENED ON JUNE 1, 1967. THE TECHNICAL PROPOSALS WERE FORWARDED TO THE NAVAL RESEARCH AND DEVELOPMENT CENTER FOR THEIR TECHNICAL EVALUATION. FOUR OF THE NINE TECHNICAL PROPOSALS WERE CONSIDERED WORTHY OF FURTHER CONSIDERATION AND CONFERENCES WERE HELD WITH THE FOUR OFFERORS TO DISCUSS THEIR PROPOSALS. AFTER FINAL EVALUATION AND NEGOTIATION, A FIRM FIXED PRICE CONTRACT WAS EXECUTED ON JULY 28, 1967, WITH JOHN J. MCMULLEN ASSOCIATES, INC., IN THE AMOUNT OF $38,840 WITH A TOTAL CONTRACT PRICE OF $101,940 IF OPTION ITEMS ARE CONSIDERED.

IT IS ALSO ADMINISTRATIVELY REPORTED THAT:

"ON COMPLETION OF THE TECHNICAL EVALUATION, MR. STATILE'S PROPOSAL WAS FOUND TO BE TECHNICALLY UNACCEPTABLE AS IT DID NOT CONTAIN AN ANALYSIS OR TECHNICAL APPROACH TO THE PROBLEM. MANY AREAS CONSIDERED CRITICAL TO THE STUDY WERE NOT DISCUSSED. FURTHER, THE TECHNICAL PROPOSAL DID NOT CONTAIN INFORMATION REGARDING THE AVAILABILITY AND COMPETENCE OF TECHNICAL PERSONNEL PROPOSED FOR THE PROJECT. IN VIEW OF THE MANY AREAS NOT COVERED IN THE TECHNICAL PROPOSAL SUBMITTED BY MR. STATILE, HIS PROPOSAL WAS NOT CONSIDERED FURTHER AS IT WOULD HAVE REQUIRED A MAJOR REVISION IN ORDER TO MAKE IT ACCEPTABLE.'

ASIDE FROM TECHNICAL CONSIDERATIONS IT MAY BE STATED HERE THAT YOUR PROPOSAL, FROM THE RECORD BEFORE US, DID NOT CONTAIN A RECITATION OF THE EXPERIENCE OF KEY PERSONNEL AND ONLY BY IMPLICATION IDENTIFIED SUCH KEY PERSONNEL. NOR WAS A PROJECTED TIME TABLE FOR COMPLETION OF THE WORK SET FORTH AS REQUIRED BY THE SPECIFICATION.

THE PROCURING OFFICE CONSIDERED YOUR PROPOSAL TECHNICALLY UNACCEPTABLE. HENCE YOUR PROPOSAL WAS NOT WITHIN A COMPETITIVE RANGE AND THERE WAS NO REQUIREMENT TO INCLUDE YOU AMONG THE FIRMS WITH WHOM NEGOTIATIONS WERE CONDUCTED. SEE 10 U.S.C. 2304 (G). THE FACT THAT YOUR PRICE PROPOSAL MAY HAVE BEEN THE LOWEST SUBMITTED DOES NOT AUTOMATICALLY BRING IT WITHIN A COMPETITIVE RANGE IN VIEW OF THE TECHNICAL UNACCEPTABILITY OF YOUR PROPOSAL.