B-167609, NOV. 13, 1969

B-167609: Nov 13, 1969

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WHERE UNSUCCESSFUL OFFEROR ALLEGED CONTRACT WAS AWARDED DESPITE PENDING PROTEST AND THAT IMPROPER AWARD RESULTED FROM BIASED SELECTION PANEL MEMBERS. FAILURE TO NOTIFY PROTESTANT OF AWARD IN TIMELY MANNER THERE IS NO LEGAL OBJECTION TO AWARD SINCE ADMINISTRATIVE OFFICE DENIES EXISTENCE OF PROTEST PRIOR TO AWARD AND AS TO DISPUTED FACTS ADMINISTRATIVE REPORT IS ACCEPTED AS CONCLUSIVE WHEN NOT CONVINCINGLY CONTROVERTED. PREJUDICE OR INDICATE THAT TECHNICAL EVALUATION WHICH DID NOT CONSIDER PROTESTANT'S BID WITHIN COMPETITIVE PRICE RANGE WAS ERRONEOUS. MA 69- 13 WAS ISSUED IN CONJUNCTION WITH FOUR OTHER SOLICITATIONS FOR THE PERFORMANCE OF TRAINING AND TECHNICAL ASSISTANCE TO PERSONNEL OF COMMUNITY ACTION AGENCIES LOCATED IN OEO'S MID-ATLANTIC REGION.

B-167609, NOV. 13, 1969

NEGOTIATION--COMPETITION--PRICES UNDER SOLICITATION BY OFFICE OF ECONOMIC OPPORTUNITY FOR TRAINING AND TECHNICAL ASSISTANCE, WHERE UNSUCCESSFUL OFFEROR ALLEGED CONTRACT WAS AWARDED DESPITE PENDING PROTEST AND THAT IMPROPER AWARD RESULTED FROM BIASED SELECTION PANEL MEMBERS, SEPARATE EVALUATION STANDARDS, ACCESS TO SELECTION CRITERIA BY SUCCESSFUL OFFEROR'S EMPLOYEES, NEGOTIATION FOR PRICE WITH ONE OFFEROR, AND FAILURE TO NOTIFY PROTESTANT OF AWARD IN TIMELY MANNER THERE IS NO LEGAL OBJECTION TO AWARD SINCE ADMINISTRATIVE OFFICE DENIES EXISTENCE OF PROTEST PRIOR TO AWARD AND AS TO DISPUTED FACTS ADMINISTRATIVE REPORT IS ACCEPTED AS CONCLUSIVE WHEN NOT CONVINCINGLY CONTROVERTED, AND EVIDENCE OF RECORD DOES NOT SUBSTANTIATE ALLEGATIONS OF USE OF SEPARATE STANDARDS, BIAS, PREJUDICE OR INDICATE THAT TECHNICAL EVALUATION WHICH DID NOT CONSIDER PROTESTANT'S BID WITHIN COMPETITIVE PRICE RANGE WAS ERRONEOUS.

TO PLEDGER AND MAHONEY:

YOUR LETTER OF JULY 30, 1969, PROTESTS ON BEHALF OF COMMUNITY PROGRAMS AND TRAINING CONSULTANTS, INC. (COMMUNITY), AGAINST THE ACTION OF THE OFFICE OF ECONOMIC OPPORTUNITY (OEO) IN AWARDING NEGOTIATED CONTRACTS TO DARDICK, GROSSMAN, HEATH AND ASSOCIATES, INC. (DARDICK), AND TO STERLING INSTITUTE (STERLING) UNDER REQUESTS FOR PROPOSALS (RFP) NOS. MA-69-6 AND MA-69-13, RESPECTIVELY.

THE RECORD SHOWS THAT ON APRIL 17, 1969, REQUEST FOR PROPOSAL NO. MA 69- 13 WAS ISSUED IN CONJUNCTION WITH FOUR OTHER SOLICITATIONS FOR THE PERFORMANCE OF TRAINING AND TECHNICAL ASSISTANCE TO PERSONNEL OF COMMUNITY ACTION AGENCIES LOCATED IN OEO'S MID-ATLANTIC REGION. TO A LESSER EXTENT, THE RFP ALSO PROVIDED FOR TRAINING TO PERSONNEL OF STATE ECONOMIC OPPORTUNITY OFFICES AND OF THE MID-ATLANTIC REGIONAL OFFICE OF OEO.

THE OFFERORS WERE PERMITTED TO SUBMIT PROPOSALS ON ONE OR ANY COMBINATION OF THE FIVE SOLICITATIONS. SOLICITATIONS NOS. MA-69-4, -5, -6 AND -11 WERE CONTAINED IN ONE DOCUMENT WHILE THE SOLICITATION FOR MA 69-13, WHICH IS THE SUBJECT OF YOUR PROTEST, WAS SET FORTH SEPARATELY. THIRTEEN FIRMS RESPONDED TO MA-69-13. STERLING WAS RATED HIGHEST TECHNICALLY WITH A RATING OF 87 ON A SCALE OF 100. AFTER STERLING, THE PROPOSALS OF THREE OTHER ORGANIZATIONS WERE RATED ABOVE COMMUNITY, WITH A FOURTH OFFEROR RECEIVING THE SAME RATING AS COMMUNITY, BUT OFFERING A LOWER PRICE. STERLING WAS DETERMINED TO HAVE SUBMITTED THE ONLY PROPOSAL WITHIN THE COMPETITIVE RANGE. AFTER APPROPRIATE NEGOTIATIONS, CONTRACT NO. B99-4993 DATED JUNE 30, 1969, WHICH COMBINED MA-69-5 AND 13, WAS AWARDED TO STERLING ON A COST-PLUS-A-FIXED-FEE BASIS IN THE ESTIMATED AMOUNT OF $441,995.

UNDER SOLICITATION MA-69-6, DARDICK SUBMITTED THE MOST FAVORABLE PROPOSAL. DARDICK RECEIVED THE HIGHEST TECHNICAL RATING AT 89.55 WITH STERLING CLOSELY BEHIND AT 88.8. COMMUNITY WAS RANKED NINTH AT 51.9 OUT OF 10 PROPOSALS SUBMITTED. AMONG THE FIRMS WITHIN THE COMPETITIVE RANGE, DARDICK SUBMITTED THE LOWEST PRICE AT $56,450, WHILE COMMUNITY, HAVING AN UNACCEPTABLE TECHNICAL PROPOSAL, SUBMITTED A PRICE OF $67,743. OEO THEREFORE ENTERED INTO CONTRACT NO. B99-4951 WITH DARDICK ON JUNE 30, 1969, IN THE AMOUNT OF $88,050 FOR THE PERFORMANCE OF RFP'S MA-69-6 AND - 11.

IN YOUR LETTER OF JULY 30, 1969, YOU ALLEGE THAT THE AWARDS OF THE CONTRACTS WERE MADE DESPITE A PROTEST OF COMMUNITY PRIOR TO THE AWARDS. YOU STATE THAT ON JUNE 28, 1969, AN ORAL PROTEST WAS MADE TO THE CONTRACTING OFFICER AND THAT THIS CONFIRMED OBJECTIONS RAISED IN A LETTER DATED JUNE 26, 1969, TO THE DIRECTOR OF COMMUNITY ACTION PROGRAMS, CONCERNING REQUEST MA-69-13. YOU ALSO ALLEGE THAT OEO FAILED TO NOTIFY COMMUNITY PROMPTLY WHEN THE CONTRACTS WERE AWARDED. YOU CONTEND THAT EMPLOYEES OF BOTH CONTRACTORS, DARDICK AND STERLING, HAD ACCESS TO SELECTION CRITERIA BY VIRTUE OF THEIR SPECIAL RELATIONSHIPS WITH OEO. THAT REGARD, YOU STATE THAT MR. BRUDER AND MR. WILCOX, EMPLOYEES OF DARDICK, WERE EMPLOYED AS CONSULTANTS TO OEO TO EVALUATE OTHER CONTRACTORS' PERFORMANCE UNDER SIMILAR TRAINING CONTRACTS AS THOSE INVOLVED HERE. ALSO, YOU STATE THAT MR. BRAILSFORD AND MR. WILSON WERE EMPLOYED BY OEO UNTIL THEY WERE HIRED BY STERLING A SHORT TIME PRIOR TO THE AWARD OF THE CONTRACTS. YOU POINT OUT THAT INFORMATION HAS NOT BEEN MADE AVAILABLE TO YOU TO SHOW THE EXTENT THAT THESE FOUR PERSONS PARTICIPATED IN THE DEVELOPMENT OF THE CRITERIA FOR THE SELECTION OF CONTRACTORS AND/OR PARTICIPATED IN THE PREPARATION OF PROPOSALS SUBMITTED BY THE SUCCESSFUL CONTRACTORS. YOU FURTHER ALLEGE THAT THE GOVERNMENT CONTRACTOR SELECTION PANEL WAS BIASED BECAUSE ONE OF ITS MEMBERS, MR. MCDONALD, HAD BEEN REJECTED FOR EMPLOYMENT BY COMMUNITY. IN ADDITION, YOU ALLEGE THAT COMMUNITY'S PROPOSALS WERE JUDGED BY SEPARATE OR ADDITIONAL STANDARDS NOT APPLIED TO THE PROPOSALS OF THE OTHER BIDDERS; THAT OEO NEGOTIATED FOR THE PRICE WITH ONLY ONE CONTRACTOR PRIOR TO THE AWARD OF EACH CONTRACT; AND THAT THE BIDS SUBMITTED BY DARDICK AND STERLING WERE NOT COMPETITIVE IN PRICE WITH THE OTHER BIDS.

CONCERNING YOUR ALLEGATION THAT THE CONTRACTS WERE AWARDED DESPITE A PENDING PROTEST MADE BY COMMUNITY, IT IS REPORTED THAT WHILE COMMUNITY DID DISCUSS THE SOLICITATIONS WITH THE CONTRACTING OFFICER BEFORE THE CONTRACTS WERE AWARDED, COMMUNITY DID NOT INDICATE THAT IT INTENDED TO PROTEST THE AWARDS. FURTHER, IT IS REPORTED THAT THE LETTER OF JUNE 26, 1969, REFERRED TO BY YOU, DOES NOT INDICATE A DESIRE ON THE PART OF COMMUNITY TO PROTEST ANY AWARD BUT RATHER REFLECTS COMMUNITY'S CONCERN THAT ITS THEN CURRENT CONTRACT WITH OEO WOULD NOT BE RENEWED. SINCE NO EVIDENCE HAS BEEN FURNISHED TO SHOW THAT THE ADMINISTRATIVE REPORT IS INCORRECT IN THIS RESPECT, THERE IS FOR APPLICATION THE WELL ESTABLISHED RULE OF OUR OFFICE THAT THE ADMINISTRATIVE VERSION OF DISPUTED FACT WILL BE ACCEPTED AS CONCLUSIVE WHEN NOT CONVINCINGLY CONTROVERTED. SEE 37 COMP. GEN. 568, 570 (1958).

REGARDING THE FAILURE OF OEO TO NOTIFY COMMUNITY OF THE CONTRACT AWARDS IN A MORE TIMELY MANNER, IT IS REPORTED THAT THE DELAY WAS CAUSED BY THE LARGE NUMBER OF CONTRACTS AWARDED IN JUNE 1969. SINCE, HOWEVER, THE NOTICE TO THE UNSUCCESSFUL OFFERORS IS SENT AFTER THE CONTRACT IS AWARDED, WE CANNOT SEE HOW THE DELAY IN NOTIFYING COMMUNITY COULD HAVE POSSIBLY PREJUDICED IT.

WITH RESPECT TO YOUR CONTENTION THAT CERTAIN EMPLOYEES OF THE TWO SUCCESSFUL CONTRACTORS HAD ACCESS TO SELECTION CRITERIA BY VIRTUE OF SPECIAL RELATIONSHIPS TO OEO, WE ARE ADVISED THAT MR. BRUDER AND MR. WILCOX, EMPLOYEES OF DARDICK, WERE EMPLOYED AS CONSULTANTS TO ANOTHER OEO CONTRACTOR TO PROVIDE OEO WITH INFORMATION CONCERNING THE PERFORMANCE OF TWO GRANTEES UNDER AN OEO GRANT. THE WORK CONDUCTED BY THESE EMPLOYEES WAS NOT RELATED TO THE DEVELOPMENT OF EVALUATION CRITERIA FOR THE SELECTION OF CONTRACTORS. MOREOVER, THE PERFORMANCE CRITERIA FOR THE GRANTEES DIFFERED SUBSTANTIALLY FROM THE WORK STATEMENTS UNDER MA-69-6 AND -13. IN ADDITION, WE ARE ADVISED THAT MR. BRAILSFORD AND MR. WILSON, FORMER EMPLOYEES OF OEO AND NOW EMPLOYEES OF STERLING, DID NOT PARTICIPATE IN, PREPARE, OR HAVE ACCESS TO, THE SELECTION CRITERIA FOR THE PROPOSALS.

IN REGARD TO YOUR ALLEGATION THAT THE CONTRACTOR SELECTION PANEL WAS BIASED BECAUSE ONE OF ITS MEMBERS, MR. MCDONALD, HAD BEEN REJECTED FOR EMPLOYMENT BY COMMUNITY, IT IS REPORTED THAT MR. MCDONALD REJECTED COMMUNITY'S OFFER OF EMPLOYMENT. IT IS ALSO REPORTED THAT THERE IS NO EVIDENCE TO SHOW THAT MR. MCDONALD WAS BIASED OR BORE MALICE TOWARD COMMUNITY. IN VIEW OF THE REPORT OF THE RESULTS OF THE INVESTIGATION MADE BY OEO, WE CAN ONLY CONCLUDE THAT THE PRESENCE OF MR. MCDONALD ON THE SELECTION PANEL DID NOT PREJUDICE COMMUNITY.

WE CANNOT AGREE WITH YOUR CONTENTION THAT COMMUNITY'S PROPOSALS WERE JUDGED BY SEPARATE OR ADDITIONAL STANDARDS NOT APPLIED TO ALL BIDDERS. THE PROCUREMENT OFFICE HAS FURNISHED US THE CRITERIA USED IN EVALUATING THE PROPOSALS WHICH WAS NEITHER UNIQUE NOR EXTRAORDINARY. RATHER, THE CRITERIA USED IN CONTRACTOR SELECTION REPRESENTED FACTORS WHICH WERE READILY ASCERTAINABLE BY ALL CONTRACTORS, PARTICULARLY COMMUNITY, SINCE IT PREVIOUSLY HAD BEEN AWARDED AN OEO TRAINING CONTRACT FOR A SIMILAR EFFORT.

REGARDING YOUR ALLEGATION THAT OEO NEGOTIATED FOR THE PRICE WITH ONLY ONE CONTRACTOR PRIOR TO AWARD OF EACH CONTRACT AND THAT THE BIDS OF STERLING AND DARDICK WERE NOT COMPETITIVE IN PRICE WITH OTHER BIDS, WE HAVE BEEN ADVISED AS FOLLOWS BY THE ADMINISTRATIVE OFFICE:

"UNDER MA69-13, IT IS CORRECT THAT STERLING DID NOT SUBMIT THE LOWEST PRICE TO PERFORM THE CPFF CONTRACT. HOWEVER, THE CONTRACTING OFFICER DETERMINED, IN CONJUNCTION WITH THE OEO TECHNICAL STAFF, THAT STERLING'S PROPOSAL WAS THE ONLY ONE WITHIN THE COMPETITIVE RANGE, PRICE AND TECHNICAL FACTORS CONSIDERED, SINCE THE ONLY OTHER OFFEROR WITH AN ACCEPTABLE PROPOSAL AFTER STERLING WAS DARDECK (DARDICK) WHO SUBMITTED A PRICE THAT WAS CONSIDERABLY HIGHER THAN STERLING, AND, THEREFORE, WAS OUT OF THE COMPETITIVE RANGE FOR PURPOSES OF NEGOTIATION. DARDECK WAS BEING CONSIDERED, ALSO, FOR THE AWARD OF MA-6 AND MA-11 AT THIS TIME, AND IT WAS CONSIDERED THAT THIS AWARD WOULD OVER-EXTEND ITS FACILITIES AND CAPABILITIES. DARDECK DID NOT OBJECT TO THIS DECISION. IN ANY EVENT, THE PROTESTOR CANNOT BE HEARD TO COMPLAIN BECAUSE ITS TECHNICAL PROPOSAL, RANKING SIXTH, COULD NOT HAVE BEEN UPGRADED SUFFICIENTLY TO BE CONSIDERED WITHIN THE COMPETITIVE RANGE, AND HAVING THE FOURTH HIGHEST PRICING PROPOSAL CLEARLY WAS OUTSIDE OF THE ZONE OF CONSIDERATION FOR NEGOTIATION PURPOSES. IT SHOULD BE OBSERVED THAT THE PROTESTOR WAS AWARDED A TRAINING CONTRACT IN THE PREVIOUS FISCAL YEAR WHICH, ALTHOUGH NOT TERMINATED, WAS HIGHLIGHTED BY A CONTINUING INABILITY TO DELIVER TRAINING OF THE QUALITY REQUIRED.

"UNDER RFP MA-6, DARDECK AT THE FOURTH LOWEST PRICE AND HIGHEST TECHNICAL RATING WAS CLEARLY THE ONLY FIRM WITH WHICH TO NEGOTIATE. THE THREE ORGANIZATIONS WITH PRICES LOWER THAN DARDECK SUBMITTED TECHNICAL PROPOSALS THAT WERE EVALUATED SO LOW THAT THERE WAS NO POSSIBLE WAY TO UPGRADE THEM, NOR COULD THEY, THEREFORE, BE CONSIDERED TO BE WITHIN THE COMPETITIVE RANGE. THE ONLY OTHER ORGANIZATION WITHIN THE RANGE TECHNICALLY WAS STERLING; BUT IT RANKED EIGHTH IN PRICE. THE PROTESTOR AGAIN WAS COMPLETELY OUT OF THE NEGOTIATING RANGE WITH A RANKING OF NINTH OUT OF TEN PROPOSALS TECHNICALLY AND A PRICE THAT WAS SIXTH HIGHEST.' IN VIEW OF THE FOREGOING, WE SEE NO LEGAL OBJECTION TO THE AWARD ACTIONS TAKEN. ACCORDINGLY, YOUR PROTEST IS DENIED.