B-167190, NOVEMBER 14, 1969, 49 COMP. GEN. 309

B-167190: Nov 14, 1969

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

EVEN THOUGH DISCUSSIONS SEEM TO HAVE BEEN IN ORDER FOR THE NEXT GROUP CLASSIFIED AS "TECHNICALLY ACCEPTABLE. 1969: REFERENCE IS MADE TO LETTER KDP-1 DATED SEPTEMBER 11. THERE IS ENCLOSED FOR YOUR INFORMATION A COPY OF OUR DECISION OF TODAY DENYING THE PROTEST. YOUR ATTENTION IS INVITED TO THE FOLLOWING DEFICIENCY IN NEGOTIATION WHICH WE BELIEVE REQUIRES SOME CORRECTIVE ACTION. PROPOSALS WERE OPENED AND THEREAFTER EVALUATED BY A COMMITTEE WHICH ISSUED ITS REPORT ON JULY 19. WERE RANKED FIRST AND SECOND RESPECTIVELY. WERE RATED "SIGNIFICANTLY SUPERIOR" TO THE OTHER 11 PROPOSERS. THE OTHER PROPOSALS WERE NOT CONSIDERED TO BE WITHIN THE COMPETITIVE RANGE. WERE VIOLATED BY ERC SINCE NO DISCUSSIONS WERE HELD WITH SCIENCE SPECTRUM EVEN THOUGH ITS TECHNICAL PROPOSAL WAS EVALUATED "ACCEPTABLE.".

B-167190, NOVEMBER 14, 1969, 49 COMP. GEN. 309

CONTRACTS -- NEGOTIATION -- COMPETITION -- COMPETITIVE RANGE FORMULA TO CATEGORIZE THIRTEEN TECHNICALLY ACCEPTABLE PROPOSALS TO STUDY THE DEVELOPMENT OF A FIRE DETENTION SYSTEM FOR MANNED SPACECRAFT BY DECLINING DEGREES OF ACCEPTABILITY--"SIGNIFICANTLY SUPERIOR," AND THE ONLY GROUP CONSIDERED TO BE WITHIN A COMPETITIVE RANGE FOR THE DISCUSSION REQUIRED BY 10 U.S.C. 2304(G), EVEN THOUGH DISCUSSIONS SEEM TO HAVE BEEN IN ORDER FOR THE NEXT GROUP CLASSIFIED AS "TECHNICALLY ACCEPTABLE," AND THE LAST TWO GROUPS CLASSIFIED "NOT APPARENTLY ADEQUATE FOR OPERATIONAL SPACECRAFT USE," AND "MARGINALLY ACCEPTABLE"- DILUTED THE USUAL MEANING OF THE WORD ACCEPTABLE"--DILUTED THE USUAL MEANING OF THE WORD "ACCEPTABLE" TO A POINT OF MEANINGLESS, AND FURTHER COMPLICATED AND MADE UNCERTAIN THE EXTENT OF "COMPETITIVE RANGE." THE USE OF MISLEADING CLASSIFICATIONS SHOULD BE AVOIDED, AND THE WRITTEN OR ORAL DISCUSSIONS CONTEMPLATED BY 10 U.S.C. 2304(G) CONDUCTED WITH ALL OFFERORS SUBMITTING PROPOSALS WITHIN A COMPETITIVE RANGE.

TO THE ADMINISTRATOR, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, NOVEMBER 14, 1969:

REFERENCE IS MADE TO LETTER KDP-1 DATED SEPTEMBER 11, 1969, FROM THE DIRECTOR OF PROCUREMENT, REPORTING ON THE PROTEST BY SCIENCE SPECTRUM, INC., AGAINST THE AWARD OF A CONTRACT TO GENERAL ELECTRIC COMPANY (GE), UNDER REQUEST FOR PROPOSALS (RFP) NO. ERC/R&D KII-8-00114, ISSUED BY THE ELECTRONICS RESEARCH CENTER (ERC).

THERE IS ENCLOSED FOR YOUR INFORMATION A COPY OF OUR DECISION OF TODAY DENYING THE PROTEST. HOWEVER, YOUR ATTENTION IS INVITED TO THE FOLLOWING DEFICIENCY IN NEGOTIATION WHICH WE BELIEVE REQUIRES SOME CORRECTIVE ACTION.

ON JUNE 3, 1968, ERC ISSUED RFP NO. ERC/R&D KII-8-00114, SEEKING TO PROCURE A STUDY OF SUBMICRON PARTICLE MEASURING TECHNIQUES LEADING TO THE DEVELOPMENT OF A FIRE DETECTION SYSTEM FOR MANNED SPACECRAFT. ON JUNE 26, 1968, PROPOSALS WERE OPENED AND THEREAFTER EVALUATED BY A COMMITTEE WHICH ISSUED ITS REPORT ON JULY 19, 1968. THAT REPORT RANKED SCIENCE SPECTRUM'S PROPOSAL 10TH OUT OF THE 13 PROPOSALS RECEIVED AND TERMED IT "MARGINALLY ACCEPTABLE." THE PROPOSALS OF GE AND METEOROLOGY RESEARCH, INCORPORATED (MRI), WERE RANKED FIRST AND SECOND RESPECTIVELY, AND WERE RATED "SIGNIFICANTLY SUPERIOR" TO THE OTHER 11 PROPOSERS.

BECAUSE OF THIS MARKED SUPERIORITY OF THE GE AND MRI PROPOSALS, THE OTHER PROPOSALS WERE NOT CONSIDERED TO BE WITHIN THE COMPETITIVE RANGE. SCIENCE SPECTRUM CONTENDS THAT THE PROVISIONS OF 10 U.S.C. 2304(G), REQUIRING THAT WRITTEN OR ORAL DISCUSSIONS BE HELD WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, WERE VIOLATED BY ERC SINCE NO DISCUSSIONS WERE HELD WITH SCIENCE SPECTRUM EVEN THOUGH ITS TECHNICAL PROPOSAL WAS EVALUATED "ACCEPTABLE."

THE BASIS FOR THIS CLAIM IS THE EVALUATION COMMITTEE'S REPORT OF JULY 19, 1968, WHICH EVALUATED 13 PROPOSALS AND STATED THAT ALL WERE "ACCEPTABLE ON A TECHNICAL BASIS." THE PROPOSALS WERE THEN LISTED NUMERICALLY IN DESCENDING ORDER OF MERIT, WITH GE FIRST AND SCIENCE SPECTRUM 10TH OUT OF 13. THE PROPOSALS WERE ALSO DESCRIBED BY THE EVALUATION COMMITTEE AS FOLLOWS: 1 AND 2 AS SIGNIFICANTLY SUPERIOR; 3 5, AS TECHNICALLY ACCEPTABLE BUT CONSIDERABLY LOWER THAN THE FIRST AND SECOND RANKED PROPOSALS; 6-9 AS NOT APPARENTLY ADEQUATE FOR OPERATIONAL SPACECRAFT USE; AND 10-13 AS "MARGINALLY ACCEPTABLE."

SINCE SCIENCE SPECTRUM'S PROPOSAL WAS RATED ONLY 10TH OUT OF 13 AND WAS RANKED IN THE LOWEST AND LEAST ACCEPTABLE OF THE FOUR GROUPINGS AS MARGINALLY ACCEPTABLE, SUCH OFFEROR WAS DETERMINED TO BE NOT WITHIN A COMPETITIVE RANGE FOR NEGOTIATION PURPOSES. ACCORDING TO THE REPORT OF THE COMMITTEE THAT EVALUATED THE TECHNICAL PROPOSALS, THE RANKING OF SCIENCE SPECTRUM WAS BASED UPON THE FACT THAT, "THE ONLY TECHNIQUE CONSIDERED IS AN OPTICAL ONE WHICH IS QUITE SOUND TECHNICALLY BUT NOT STRICLY APPLICABLE." APPARENTLY, ALTHOUGH THE TECHNIQUE IS VALID, IT IS NOT CONSIDERED ADEQUATE FOR OPERATIONAL SPACECRAFT USAGE. WHILE THE TECHNICAL PROPOSALS IN THE NEXT TO LAST GROUPING MAY LIKEWISE BE CONSIDERED INADEQUATE FOR SIMILAR REASONS, IT IS NOT ENTIRELY CLEAR THAT THE TECHNICAL PROPOSALS IN THE SECOND GROUP WERE SO TECHNICALLY INFERIOR AS TO PRECLUDE MEANINGFUL DISCUSSIONS. SEE 45 COMP. GEN. 417 (1966).

WITH REGARD TO THE NATURE AND EXTENT OF NEGOTIATIONS TO BE CONDUCTED WITH OFFERORS, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION PROCUREMENT REGULATIONS 3.805-1, IMPLEMENTING 10 U.S.C. 2304(G), REQUIRES THAT "WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED." WHILE WE HAVE HELD THAT A PROPOSAL MUST BE CONSIDERED TO BE WITHIN A COMPETITIVE RANGE SO AS TO REQUIRE NEGOTIATIONS UNLESS IT IS SO TECHNICALLY INFERIOR THAT MEANINGFUL NEGOTIATIONS ARE PRECLUDED, WE HAVE ALSO RECOGNIZED THAT THE DETERMINATION OF "COMPETITIVE RANGE," PARTICULARLY AS REGARDS TECHNICAL CONSIDERATIONS, IS PRIMARILY A MATTER OF PROCUREMENT DISCRETION WHICH WILL NOT BE DISTRIBUTED IN THE ABSENCE OF A CLEAR SHOWING THAT SUCH DETERMINATION WAS AN ARBITRARY ABUSE OF DISCRETION. 48 COMP. GEN. 314 (1968).

THE CATEGORIZATION OF THE 13 PROPOSALS BY DECLINING DEGREES OF ACCEPTABILITY TO A POINT WHERE THE USUAL MEANING OF THE WORD "ACCEPTABLE" BECOMES SO DILUTED AS TO BECOME MEANINGLESS FURTHER COMPLICATES AND RENDERS UNCERTAIN THE EXTENT OF "COMPETITIVE RANGE."

ACCORDINGLY, APPROPRIATE STEPS SHOULD BE TAKEN TO AVOID THE USE OF MISLEADING CLASSIFICATIONS SUCH AS WERE EMPLOYED IN THIS CASE.

AS REQUESTED, WE ARE RETURNING HEREWITH YOUR FILE IN THIS MATTER.