B-167175(2), OCT. 13, 1969

B-167175(2): Oct 13, 1969

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UPON EVALUATION OF PROPOSALS ON BOTH ADJECTIVE RATING AND WEIGHTED RATING SYSTEMS WHICH DETERMINED PROTESTANT'S PROPOSAL WAS 5TH HIGHEST IN PRICE AND LOWEST ON TECHNICAL EVALUATION OF 16 PROPOSALS RECEIVED. WAS PROPERLY DETERMINED UNACCEPTABLE. DETERMINATION OF GOVERNMENT'S NEEDS AND DRAFTING OF SPECIFICATIONS FOR MATERIALS AND SERVICES IS PROPER FUNCTION OF ADMINISTRATIVE AGENCIES. WHICH WILL NOT BE QUESTIONED UNLESS ARBITRARY. UNREASONABLE OR UNAUTHORIZED AND NO ADEQUATE BASIS IS FOUND FOR HOLDING REQUIREMENTS OF SPECIFICATIONS WERE NOT BASED ON BONA FIDE NEEDS OF MILITARY SERVICE AND JUDGMENT OF OFFICIALS. IS NOT SUBJECT TO REVIEW BY GAO. THE PROPOSAL SUBMITTED BY YOU WAS DETERMINED BY THE EVALUATION TEAM APPOINTED TO CONSIDER PROPOSALS TO BE UNACCEPTABLE.

B-167175(2), OCT. 13, 1969

NEGOTIATION--EVALUATION FACTORS--POINT RATING UNDER NEGOTIATED PROCUREMENT FOR AUTOMATION STUDY, UPON EVALUATION OF PROPOSALS ON BOTH ADJECTIVE RATING AND WEIGHTED RATING SYSTEMS WHICH DETERMINED PROTESTANT'S PROPOSAL WAS 5TH HIGHEST IN PRICE AND LOWEST ON TECHNICAL EVALUATION OF 16 PROPOSALS RECEIVED, TOTALING 134.75 OF OF MAXIMUM OF 640, WAS PROPERLY DETERMINED UNACCEPTABLE. DETERMINATION OF GOVERNMENT'S NEEDS AND DRAFTING OF SPECIFICATIONS FOR MATERIALS AND SERVICES IS PROPER FUNCTION OF ADMINISTRATIVE AGENCIES, WHICH WILL NOT BE QUESTIONED UNLESS ARBITRARY, UNREASONABLE OR UNAUTHORIZED AND NO ADEQUATE BASIS IS FOUND FOR HOLDING REQUIREMENTS OF SPECIFICATIONS WERE NOT BASED ON BONA FIDE NEEDS OF MILITARY SERVICE AND JUDGMENT OF OFFICIALS, ABSENT INDICATION OF IMPROPER EXERCISE OF ADMINISTRATIVE AUTHORITY, IS NOT SUBJECT TO REVIEW BY GAO.

TO BERKELEY SCIENTIFIC LABORATORIES, INC.:

BY YOUR LETTER OF JUNE 3, 1969, YOU PROTESTED THE AWARD OF ANY CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) F41609-69-R-0036, ISSUED JANUARY 6, 1969, BY THE AEROSPACE MEDICAL DIVISION, BROOKS AIR FORCE BASE, TEXAS. THE REFERENCED RFP SOLICITED PROPOSALS ON A COST-PLUS FIXED FEE BASIS FOR A 9 MONTHS FEASIBILITY STUDY OF AUTOMATING THE 74 ARMED FORCES ENTRANCE AND EXAMINATION STATIONS (AFEES), PLUS A PROTOTYPE SYSTEM WITH ESTIMATED COST. THE PROPOSAL SUBMITTED BY YOU WAS DETERMINED BY THE EVALUATION TEAM APPOINTED TO CONSIDER PROPOSALS TO BE UNACCEPTABLE, AND YOU CHALLENGE THE REJECTION OF YOUR PROPOSAL AND OBJECT TO THE MANNER IN WHICH THE TECHNICAL EVALUATION OF PROPOSALS UNDER THE RFP WAS PERFORMED.

PRIOR TO SUBMITTING YOUR PROTEST TO OUR OFFICE YOU ENGAGED IN AN EXCHANGE OF CORRESPONDENCE WITH THE PROCURING OFFICE, AND ON THE BASIS THEREOF YOU STATE THE BELIEF THAT YOUR PROPOSAL WAS NOT READ WITH ANY SINCERITY DURING EITHER THE INITIAL TECHNICAL EVALUATION OR THE PREPARATION OF THE RESPONSE TO YOUR ORIGINAL PROTEST TO THE CONTRACTING OFFICER. HOWEVER, IN YOUR PROTEST LETTER YOU STATE THAT YOU ARE "NOT PRIMARILY INTERESTED IN RECEIVING A CONTRACT FOR THIS PROCUREMENT AT THIS TIME," AND IN YOUR LETTER OF MAY 26, 1969, TO THE CONTRACTING OFFICER, YOUR PRESIDENT STATED THAT HE WOULD NOT ALLOW THE COMPANY UNDER ANY CIRCUMSTANCES TO ACCEPT THIS CONTRACT.

THE PROCUREMENT RECORD SHOWS THAT AT A PREPROPOSAL BRIEFING HELD ON JANUARY 24, 1969, THE GOVERNMENT REPRESENTATIVES WERE ASKED TO ELABORATE ON THE RATING SYSTEM TO BE USED, AND THE FOLLOWING STATEMENT WAS MADE IN RESPONSE TO THAT REQUEST:

"A RATING SYSTEM FOR EXPLORATORY DEVELOPMENT WILL BE UTILIZED; THAT IS, YOUR CONTRACT WILL BE SENT IN ACCORDING TO THE RFP TO THE CONTRACTING AND PURCHASING OFFICER; THEY WILL IN TURN DELETE ALL DOLLAR FIGURES AND FORWARD THOSE PROPOSALS OR BIDS TO THE EVALUATION COMMITTEE. WE WILL EVALUATE THESE ACCORDING TO THE SOW ON AN ADJECTIVE RATING, IN OTHER WORDS, ALL WORDS. TO GIVE YOU SOME IDEA WHAT SOME OF THE WORDS ARE -- GOOD, BAD AND INDIFFERENT, OF COURSE, WE HAVE NO DATA, UNSATISFACTORY REPORT, AVERAGE, GOOD, EXCELLENT. THOSE ARE THE ADJECTIVES TO BE USED ON SOME OF THE RATINGS. NOW THIS GROUP OF INDIVIDUALS WILL EVALUATE THIS AND TURN IT OVER TO THE PROJECT SCIENTIST WHO WILL HAVE, PREVIOUS TO RECEIVING THESE, WORKED OUT A WEIGHTED RATING SYSTEM WHICH WILL BE IN HIS POSSESSION. WE WILL NOT KNOW WHAT THIS RATING SYSTEM IS; HE WILL THEN APPLY HIS WEIGHTED RATING SYSTEM. THESE TOTALS WILL BE ADDED UP AND, IN TURN, RETURNED TO P&C AND WHAT GOES ON FROM THERE, GENTLEMEN, WE HAVE NO CONTROL OVER; I DO NOT KNOW. THE DOLLARS ARE PUT BACK ON THEM AND THE AIR FORCE IS SUPPOSED TO GET THE MOST EFFORT FOR THE LEAST DOLLARS."

THE RFP, AS AMENDED AFTER THE BRIEFING, CONTAINED THE FOLLOWING PROVISIONS:

"33. SUBMISSION AND EVALUATION OF PROPOSALS

"PROPOSALS SUBMITTED AS A RESULT OF THIS SOLICITATION SHALL BE IN TWO (2) PARTS, THE TECHNICAL PROPOSAL AND THE COST PROPOSAL.

"A. THE TECHNICAL PROPOSAL SHALL BE SUBJECT TO EVALUATION IN ACCORDANCE WITH AFSCM 80-10, TECHNICAL PROPOSAL EVALUATION PROCEDURES, BY A DULY SELECTED PANEL OF QUALIFIED GOVERNMENT PERSONNEL. GREATEST EMPHASIS SHALL BE PLACED ON THE FOLLOWING CRITERIA IN THE ORDER LISTED:

"(1) THE SCOPE OF THE TECHNICAL PROPOSAL SHALL BE SUFFICIENT TO DEMONSTRATE RECOGNITION OF THE BASIC DIFFICULTIES OF THE PROBLEM, AND TO SHOW THE GENERAL APPROACH TOWARD STUDYING AND SOLVING EACH. THIS SHOULD INCLUDE PRELIMINARY WORKING CONCEPTS, AND SUFFICIENT DISCUSSION OR RATIONALE WHERE NEEDED TO PERMIT EVALUATION OF PROPOSER'S UNDERSTANDING AND SOUNDNESS OF APPROACH TOWARD PROBLEM AREAS.

"(2) NAMES OF PERSONS TO BE ASSIGNED FOR DIRECT WORK ON THE PROJECT AND AS DIRECT SUPERVISORS, PLUS:

"(A) THEIR EXPERIENCE IN SIMILAR OR RELATED WORK.

"(B) THEIR GENERAL QUALIFICATIONS, INCLUDING EDUCATION AND SPECIFIC ACCOMPLISHMENTS.

"(C) PERCENT OF TOTAL TIME EACH WILL BE AVAILABLE FOR THIS PROJECT FOR THE DURATION ESTIMATED BY THE OFFEROR.

"(3) STATEMENT OF ADDITIONAL ENGINEERING PERSONNEL REQUIRED FOR FULL EMPLOYMENT, SUBCONTRACT OR CONSULTATION, OR SOURCES WHICH THEY WILL BE OBTAINED. STATEMENT OF ASSURANCE THAT PROPOSED ADDITIONAL PERSONNEL WILL BE AVAILABLE FOR WORK ON THIS CONTRACT AS SPECIFIED ON THE PROPOSAL. ALTERNATE PERSONNEL SOURCES SHOULD BE LISTED IF ASSURANCE OF AVAILABILITY CANNOT BE STATED.

"(4) DEGREE OF SUCCESS EXPECTED AND MAJOR DIFFICULTIES ANTICIPATED.

"(5) PERIOD OF PERFORMANCE PROPOSED FOR PROJECT IN MONTHS, BY PHASES, OR STEPS, IF APPLICABLE, AND DELIVERY SCHEDULE OF ALL ITEMS.

"(6) SPECIFIC CONCURRENCE IN REQUIREMENTS FOR REPORTS."

THE RECORD FURTHER SHOWS THAT 16 PROPOSALS WERE RECEIVED AND THAT AS A RESULT OF EVALUATION, IN ACCORDANCE WITH THE ABOVE PROVISIONS AND THE STATEMENT AT THE PREPROPOSAL BRIEFING, 13 WERE DETERMINED TO BE UNACCEPTABLE. NO PROTEST OR OBJECTION HAS BEEN RECEIVED FROM ANY OF THE OTHER 12 REJECTED OFFERORS.

WE HAVE EXAMINED THE ENTIRE RECORD, INCLUDING THE EVALUATORS' SCORING OF PROPOSALS, AND FIND NO INDICATION THAT THE RESULTS WERE NOT BASED UPON THE BONA FIDE IMPARTIAL JUDGMENT OF THE MEMBERS OF THE EVALUATION TEAM. THE ABSENCE OF CLEAR PROOF TO THE CONTRARY, WE MUST ASSUME THAT THE INDIVIDUALS IN WHOM THE ADMINISTRATIVE DEPARTMENTS OF THE GOVERNMENT HAVE VESTED THE AUTHORITY TO MAKE SUCH JUDGMENTS ARE COMPETENT, AND OUR OFFICE DOES NOT HAVE THE TECHNICAL EXPERTISE IN SUCH FIELDS WHICH WOULD ENABLE US TO QUESTION THEIR TECHNICAL OR SCIENTIFIC DETERMINATIONS ON THEIR MERITS.

FOR YOUR INFORMATION, THE RECORD SHOWS ALSO THAT ON THE BASIS OF PRICE YOUR PROPOSAL WAS FIFTH HIGHEST OF THE 16 RECEIVED, AND WAS SUBSTANTIALLY HIGHER THAN TWO OF THE THREE PROPOSALS WHICH WERE CONSIDERED TECHNICALLY ACCEPTABLE. ON THE TECHNICAL EVALUATION IT WAS RATED LOWEST OF THE 16, RECEIVING A SCORE OF 134.75 OF A MAXIMUM OF 640, AGAINST SCORES IN EXCESS OF 500 FOR THE THREE ACCEPTABLE PROPOSALS.

IN THE CIRCUMSTANCES, CONSIDERING YOUR EXPRESSED UNWILLINGNESS TO ACCEPT AN AWARD IN ANY EVENT, AND THE ABSENCE OF OBJECTION BY ANY OTHER OFFEROR WHOSE PROPOSAL WAS REJECTED, WE DO NOT FEEL THAT WE WOULD BE JUSTIFIED IN INTERPOSING AN OBJECTION AT THIS POINT TO AWARD OF A CONTRACT ON THE BASIS OF THE CONTRACTING OFFICER'S DETERMINATION OF THE BEST INTERESTS OF THE GOVERNMENT IN ACCORDANCE WITH THE TERMS OF THE RFP.

HOWEVER, INASMUCH AS IT APPEARS FROM OUR REVIEW THAT THE DIFFERENCES BETWEEN YOU AND THE PROCURING ACTIVITY ARE PRIMARILY THE RESULT OF A MISUNDERSTANDING OF THE REQUIREMENTS OF THE RFP, WE ARE RECOMMENDING TO THE SECRETARY OF THE AIR FORCE THAT IN FUTURE SIMILAR PROCUREMENTS EFFORTS SHOULD BE MADE TO FURNISH A MORE SPECIFIC STATEMENT OF WHAT THE PROCURING ACTIVITY WISHES TO BE INCLUDED IN PROPOSALS AND THE BASES UPON WHICH THEY WILL BE EVALUATED.

YOU ALSO STATED IN YOUR LETTER THAT YOU QUESTION THE WISDOM OF THE AIR FORCE'S PROCUREMENT AND WHETHER OR NOT IT IS IN THE BEST INTERESTS OF THE GOVERNMENT. THE DETERMINATION OF THE GOVERNMENT'S NEEDS, AND THE DRAFTING OF SPECIFICATIONS FOR MATERIALS AND SERVICES TO MEET THEM, ARE PROPER FUNCTIONS OF THE ADMINISTRATIVE AGENCIES, WHOSE ACTIONS IN RESPECT THERETO WILL NOT ORDINARILY BE QUESTIONED BY OUR OFFICE UNLESS OBVIOUSLY ARBITRARY OR UNREASONABLE OR UNAUTHORIZED. 17 COMP. GEN. 554. AS TO THIS PROCUREMENT, WE FIND NO ADEQUATE BASIS FOR HOLDING THAT THE REQUIREMENTS STATED IN THE SPECIFICATIONS WERE NOT BASED UPON A BONA FIDE DETERMINATION OF THE PRESENT NEEDS OF THE MILITARY SERVICES. IN THE ABSENCE OF ANY INDICATION OF IMPROPER EXERCISE OF THE ADMINISTRATIVE AUTHORITY THE JUDGMENT OF THE OFFICIALS AUTHORIZED TO ACT IN SUCH MATTERS IS NOT SUBJECT TO REVIEW BY THIS OFFICE. SEE B 164384(1), JANUARY 31, 1969.