B-169259, AUG. 18, 1970

B-169259: Aug 18, 1970

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BID PROTEST DENIAL OF PROTEST AGAINST NEGOTIATED AWARD TO TOLIS-CAIN CORPORATION FOR PRODUCTION OF RAIL FREIGHT DATA FILES ON BASIS THAT A COMBINED AWARD WAS MADE FOR WORK ENCOMPASSED BY TWO REQUESTS FOR PROPOSALS. WHERE RECORD SHOWS THAT PROPOSALS UNDER TWO SOLICITATIONS WERE EVALUATED SEPARATELY AND AFTER ALL COMBINATIONS WERE EXAMINED AND SUCCESSFUL OFFEROR WAS LOW UNDER BOTH THAT A COMBINED AWARD WAS MADE. THERE IS NO BASIS TO FIND THAT OFFERORS WERE COMPETING ON UNEQUAL BASIS. CONNER AND CUNEO: REFERENCE IS MADE TO A LETTER DATED MARCH 5. THE PRIMARY BASIS FOR YOUR PROTEST IS THAT THE DEPARTMENT OF TRANSPORTATION (DOT) MADE A "COMBINED AWARD" OF ONE CONTRACT FOR THE WORK ENCOMPASSED BY THE TWO RFP'S.

B-169259, AUG. 18, 1970

BID PROTEST DENIAL OF PROTEST AGAINST NEGOTIATED AWARD TO TOLIS-CAIN CORPORATION FOR PRODUCTION OF RAIL FREIGHT DATA FILES ON BASIS THAT A COMBINED AWARD WAS MADE FOR WORK ENCOMPASSED BY TWO REQUESTS FOR PROPOSALS. WHERE RECORD SHOWS THAT PROPOSALS UNDER TWO SOLICITATIONS WERE EVALUATED SEPARATELY AND AFTER ALL COMBINATIONS WERE EXAMINED AND SUCCESSFUL OFFEROR WAS LOW UNDER BOTH THAT A COMBINED AWARD WAS MADE, THERE IS NO BASIS TO FIND THAT OFFERORS WERE COMPETING ON UNEQUAL BASIS, OTHER CONTENTIONS REVIEWED, DISCUSSED AND HELD INSUFFICIENT TO AFFORD BASIS FOR DISTURBING AWARD.

TO SELLERS, CONNER AND CUNEO:

REFERENCE IS MADE TO A LETTER DATED MARCH 5, 1970, FROM TAURUS ASSOCIATES, AND TO YOUR LETTER OF MAY 22, 1970, ON BEHALF OF TAURUS, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE TOLIS-CAIN CORPORATION (TOLIS-CAIN) UNDER REQUESTS FOR PROPOSALS NOS. DOT-OS-A9 065 AND DOT-OS-A9 -085, ISSUED BY THE DEPARTMENT OF TRANSPORTATION, WASHINGTON, D.C.

THE PRIMARY BASIS FOR YOUR PROTEST IS THAT THE DEPARTMENT OF TRANSPORTATION (DOT) MADE A "COMBINED AWARD" OF ONE CONTRACT FOR THE WORK ENCOMPASSED BY THE TWO RFP'S, NEITHER OF WHICH REFERRED TO THE OTHER. YOU ALSO CONTEND THAT THE TECHNICAL EVALUATION OF PROPOSALS WAS IMPROPER.

REQUEST FOR PROPOSALS NO. DOT-OS-A9-065 ("RFP-065"), FOR SERVICES AND MATERIALS FOR THE PRODUCTION OF RAIL FREIGHT DATA FILES AND TABULATIONS, AND REQUEST FOR PROPOSALS NO. DOT-OS-A9-085 ("RFP-085"), FOR MOTOR FREIGHT FLOW DATA AND TABULATIONS, WERE BOTH ISSUED ON JUNE 15, 1969, WITH A CLOSING DATE FOR RECEIPT OF PROPOSALS OF JUNE 30, 1969. THE RESULTS OF THESE PROCUREMENTS, TOGETHER WITH DATA RELATING TO OTHER MODES OF FREIGHT MOVEMENT, WOULD FORM A COMPREHENSIVE GOVERNMENT-INDUSTRY TRANSPORTATION DATA PROGRAM. THE DATA WOULD BE USED IN ANALYSIS, PLANNING, DEVELOPMENT AND FORECASTING EFFORTS RELATED TO FREIGHT TRANSPORTATION.

THE TWO SOLICITATIONS WERE SYNOPSIZED TOGETHER IN THE COMMERCE BUSINESS DAILY "SYNOPSIS OF U. S. GOVERNMENT PROPOSED PROCUREMENT, SALES AND CONTRACT AWARDS." THE SYNOPSIS OF RFP-065 STATED " *** ALL FIRMS REQUESTING THIS RFP WILL ALSO BE ISSUED RFP DOT-OS-A9-085" AND SIMILARLY, THE SYNOPSIS OF RFP-085 ADVISED "ALL FIRMS THAT HAVE REQUESTED RFP DOT-OS- A9-065 *** WILL AUTOMATICALLY BE ISSUED THE MOTOR FREIGHT RFP DESCRIBED HEREIN." IN ACCORDANCE WITH THE TERMS OF THE SYNOPSIS, 305 SETS OF SOLICITATIONS WERE ISSUED.

TWENTY-ONE FIRMS TIMELY SUBMITTED PROPOSALS WHICH WERE EVALUATED PURSUANT TO A SYSTEM DESCRIBED MORE FULLY BELOW. FOUR OF THESE OFFERORS, ONE OF WHICH WAS TAURUS, SUBMITTED PROPOSALS FOR RFP-085 ONLY, AND 7 OFFERORS SUBMITTED PROPOSALS FOR RFP-085 ONLY. HOWEVER, 10 OF THE 21 OFFERORS, INCLUDING TOLIS-CAIN, SUBMITTED SEPARATE PROPOSALS UNDER BOTH SOLICITATIONS. ADDITIONALLY, TOLIS-CAIN AND ANOTHER OFFEROR WHICH HAD SUBMITTED SEPARATE PROPOSALS, ALSO SUBMITTED PROPOSALS STATING A LOWER, COMBINED PRICE FOR PERFORMANCE OF BOTH THE RAIL AND MOTOR PROJECTS. TOLIS -CAIN'S OFFER TO PERFORM BOTH PROJECTS AT A REDUCTION IN PRICE APPEARED AS AN UNSOLICITED PROPOSAL AT THE END OF EACH OF ITS SEPARATE PROPOSALS.

TWO SETS OF CRITERIA WERE DEVELOPED FOR THE EVALUATION OF PROPOSALS UNDER BOTH SOLICITATIONS. ALTHOUGH THE CRITERIA AND THEIR INDIVIDUAL NUMERICAL WEIGHTING VARIED FOR EACH SOLICITATION, IN BOTH CASES THE SUM OF THE NUMERICAL WEIGHTS WAS 100 AND A MINIMUM SCORE OF 75 WAS ESTABLISHED FOR TECHNICALLY ACCEPTABLE PROPOSALS. EACH MEMBER OF AN EVALUATION TEAM INDEPENDENTLY GRADED EACH PROPOSAL PURSUANT TO THESE CRITERIA. A MEDIAN SCORE WAS DERIVED FROM THE INDIVIDUAL SCORES IN DETERMINING THE TECHNICAL ACCEPTABILITY OF PROPOSALS. UPON COMPLETION OF THEIR INITIAL REVIEW, THE EVALUATION TEAM DESIGNATED THE "TOP FIVE" PROPOSALS UNDER RFP-065 AS THOSE OF SERVICE BUREAU CORPORATION (SBC), TOLIS-CAIN, TAURUS, CONSAD AND FAUCETT, AND THE "TOP FIVE" PROPOSALS UNDER RFP-085 WERE THOSE OF MIDWEST RESEARCH (MRI), CONSAD, TOLIS-CAIN, A. C. ROSANDER AND CREIGHTON-HAMBURG, INC.

FURTHER EVALUATION RESULTED IN SOME CHANGES TO THE SCORES ASSIGNED EACH PROPOSAL. ON SEPTEMBER 19, 1969, THE EVALUATION TEAM CONCLUDED THAT THE "TECHNICALLY SATISFACTORY" PROPOSALS SUBMITTED UNDER RFP-065 WERE THOSE OF SBC, TAURUS, CONSAD, AND TOLIS-CAIN. ALL OF THESE TECHNICALLY SATISFACTORY OFFERORS WERE ASSIGNED MEDIAN SCORES IN EXCESS OF 75, EXCEPT FOR TOLIS-CAIN WHICH WAS ASSIGNED A SCORE OF 74. THE SCORES OF THE TECHNICALLY UNACCEPTABLE OFFERORS RANGED FROM 66 TO 9. WITH REGARD TO RFP -085, THE PROPOSALS OF MRI AND CONSAD, BOTH OF WHICH SCORED MORE THAN 75, WERE DEEMED TECHNICALLY ACCEPTABLE. TOLIS-CAIN RANKED THIRD WITH A MEDIAN SCORE OF 70, AND THE SCORES OF ALL OTHER OFFERORS RANGED FROM 65 TO 27.

CONSIDERATION WAS THEN GIVEN TO THE COST ASPECTS OF THE INITIAL PROPOSALS. THE PRICES OF THE TECHNICALLY ACCEPTABLE OFFERORS UNDER RFP 065 RANGED FROM $110,048 TO $517,690, THE LOWEST PRICE BEING SUBMITTED BY TOLIS-CAIN. THE TECHNICALLY ACCEPTABLE OFFERORS UNDER RFP-085 SUBMITTED PRICES OF $254,350 AND $327,357, WHILE TOLIS-CAIN'S PRICE WAS $111,755. TOLIS-CAIN'S COMBINED PRICE FOR BOTH PROJECTS WAS $218,383. THUS, TOLIS- CAIN WAS TECHNICALLY RANKED 4TH OF 14 FIRMS ON THE RAIL PROJECT, AND ITS PRICE PROPOSAL WAS LOW. ON THE MOTOR PROJECT, IT WAS RANKED 3RD OF 17 FIRMS, AND ITS COST PROPOSAL WAS CONSIDERABLY BELOW ANY OF THE TECHNICALLY ACCEPTABLE FIRMS. IN CONTRAST, THE ONLY OTHER OFFEROR WHICH SUBMITTED A COMBINED PROPOSAL FOR BOTH PROJECTS WAS RANKED MUCH LOWER ON THE TECHNICAL ASPECTS OF ITS PROPOSALS AND HAD SUBMITTED A COMBINED PRICE OF $470,000.

AFTER EXAMINATION OF THE TECHNICAL AND COST PROPOSALS, IT WAS DETERMINED THAT NEGOTIATIONS UNDER RFP-065 WOULD BE CONDUCTED WITH SBC, TAURUS, CONSAD AND TOLIS-CAIN, AND NEGOTIATIONS UNDER RFP-085 WOULD BE HELD WITH MRI, CONSAD AND TOLIS-CAIN. TOLIS-CAIN WAS SELECTED FOR FURTHER NEGOTIATION, EVEN THOUGH IT HAD BEEN SCORED 70 AND 74 ON ITS MOTOR FREIGHT AND RAIL FREIGHT PROPOSALS, RESPECTIVELY, BECAUSE IN THE JUDGMENT OF THE PROCURING ACTIVITY THE DEFICIENCIES IN TOLIS-CAIN'S PROPOSALS WERE MINOR AND THE PROPOSALS WERE MINOR AND THE PROPOSALS COULD BE UPGRADED THROUGH NEGOTIATIONS. FURTHER, TOLIS-CAIN'S PROPOSED PRICES APPEARED TO OFFER POTENTIAL DOLLAR SAVINGS TO THE GOVERNMENT.

THE TECHNICAL EVALUATION TEAM HAD ADVISED THAT ALL THE TECHNICALLY ACCEPTABLE PROPOSALS REQUIRED CLARIFICATION, AND THEREFORE TECHNICAL DISCUSSIONS WITH THE OFFERORS WERE NECESSARY TO RESOLVE AND CLARIFY THE DIFFERENCES AMONG THE PROPOSALS. DURING OCTOBER AND NOVEMBER 1969, THE DOT PROJECT OFFICE PERFORMED STUDIES OF ALL THE ACCEPTABLE TECHNICAL PROPOSALS AND PREPARED THE GOVERNMENT POSITION FOR EACH WITH RESPECT TO DEFINING THE SUBTASKS TO BE PERFORMED AND THE MANNING REQUIREMENTS BY SUBTASK. TECHNICAL NEGOTIATIONS WERE HELD IN THE FOLLOWING SEQUENCE:

"FIRM RFP DATE

MRI DOT-OS-A9-085 (MOTOR) DEC. 5, 1969

CONSAD DOT-OS-A9-065 (RAIL) DEC. 9, 1969

CONSAD DOT-OS-A9-085 (MOTOR) DEC. 10, 1969

SBC (DOT)-OS-A9-065 (RAIL) DEC. 11, 1969

TAURUS DOT-OS-A9-065 (RAIL) DEC. 16, 1969

TOLIS-CAIN DOT-OS-A9-085 (MOTOR) DEC. 17, 1969

TOLIS-CAIN DOT-OS-A9-065 (RAIL) DEC. 18, 1969." THE PROJECT OFFICER FOR THE PROCUREMENTS HAD PREPARED A SERIES OF QUESTIONS TO BE ASKED OF ALL OFFERORS, THE RESPONSES TO WHICH WERE USED IN FURTHER EVALUATION OF THE TECHNICAL PROPOSALS. ALL OFFERORS FOR RFP-085 WERE REQUIRED TO SUBMIT REFINED TECHNICAL AND PRICE PROPOSALS BY DECEMBER 19, 1969, AND REFINED PROPOSALS FOR RFP-065 WERE TO BE SUBMITTED BY DECEMBER 23, 1969.

ALL OFFERORS TIMELY SUBMITTED REFINED PROPOSALS, THE TECHNICAL PORTIONS OF WHICH WERE EVALUATED BY THE PROJECT OFFICER. DURING EARLY JANUARY 1970, THE PROCURING ACTIVITY ALSO DEVELOPED THE PRICING OBJECTIVES OR TARGET PRICES FOR THE NEGOTIATIONS. NEGOTIATIONS WERE CONDUCTED WITH ALL FIRMS DURING THE LATTER HALF OF JANUARY 1970. FINAL OFFERS ON RFP-085 WERE DUE JANUARY 26, 1970, AND JANUARY 30, 1970, WAS SET AS THE TIME FOR SUBMISSION OF FINAL OFFERS ON RFP-065.

IN REGARD TO THE FINAL OFFERS MADE UNDER RFP-065, THE FOLLOWING MEMORANDUM DATED JANUARY 28, 1970, WAS SENT BY THE PROJECT OFFICER TO THE CONTRACTING OFFICER:

"I HAVE RECEIVED THE FOLLOWING REFINED TECHNICAL PROPOSALS DATED DECEMBER 23, 1969:

SBC

TAURUS ASSOCIATES

CONSAD CORPORATION

TOLIS-CAIN CORPORATION

"MY COMMENTS ARE SUMMARIZED AS FOLLOWS:

"(A) THE REFINED PROPOSALS SUBMITTED BY SBC, CONSAD CORPORATION AND TOLIS -CAIN CORPORATION ARE TECHNICALLY ACCEPTABLE. THE MINIMUM TECHNICAL REQUIREMENTS AS DISCUSSED DURING THE NEGOTIATIONS ARE INCORPORATED AND PROPERLY DESCRIBED. THE GRAND TOTALS OF THE LEVEL OF EFFORT OFFERED AND MODIFIED DURING THE PRICE NEGOTIATIONS ARE ACCEPTABLE. THE PROPOSED COMPUTER CONFIGURATIONS AND RELATED COMPUTER TIME ARE ACCEPTABLE AS OFFERED. SBC'S ADP COST REDUCTION AS SUBMITTED AT THE JANUARY 23RD PRICE NEGOTIATIONS IS REASONABLE.

"(B) TAURUS ASSOCIATES DID NOT REFINE THEIR JUNE 30 TECHNICAL PROPOSAL BUT MERELY MADE AFFIRMATIVE RESPONSES TO THE TECHNICAL QUESTIONS POSED IN THE DECEMBER 16, 1969, TECHNICAL NEGOTIATIONS.

"(C) TAURUS ASSOCIATES CUT THE PROFESSIONAL LEVEL OF EFFORT FROM THE JUNE 30 8036 HOURS TO 5223 HOURS; AS WELL, THE CLERICAL HOURS FROM THE ORIGINAL 9500 HOURS OFFERED ON JUNE 30 TO 7017 HOURS IN THE REFINED PRICE PROPOSAL.

"(D) THE DEFICIENCY OF THE REDUCED LEVEL OF EFFORT CAN BEST BE SEEN ON A TASK BY TASK BASIS AND BY COMPARING WITH DOT'S APPRAISAL WHICH WAS ACCEPTED BY ALL FIRMS, EXCEPT TAURUS ASSOCIATES.

"TASK DOT ESTIMATE TAURUS REDUCED FINAL OFFER

PROF. HRS. CLERICAL HRS. PROF. HRS. CLERICAL HRS. A. REVIEW OF THE ICC PROGRAM 400 - 315 - B. STATISTICAL EVALUATION OF

ICC DATA PROGRAM 100 - 0 - C. DEVELOPMENT OF FORMATS

AND PROCEDURES FOR A

MASTER FILE 1110 - 430 - D. REPORTS ON DECENTRALIZED

PROGRAM PLAN 1135 - 0 - E. DEVELOPMENT OF COMPUTER

SOFTWARE 3380 - 1855 2017 F G. REDUCTION OF 1969 AND

1967 FILES AND TABLES 3700 13,315 2583 5000

GRAND TOTAL 9825 13,315 5223 7017

"(E) DURING THE PRICE NEGOTIATIONS CONDUCTED JANUARY 26, 1970, TAURUS WAS ADVISED THAT THE GOVERNMENT'S POSITION WAS THAT TAURUS COULD NOT PERFORM THE WORK AS REQUIRED, WITH THEIR DRASTICALLY REDUCED PROPOSED LEVEL-OF- EFFORT. WHEN ASKED TO JUSTIFY THEIR POSITION, THE TAURUS' REPRESENTATIVES OFFERED NO ACCEPTABLE EXPLANATION FOR THEIR ACTIONS IN THE REDUCTION OF MANPOWER. AS A RESULT OF THE TAURUS NEGOTIATION, THE FINAL PROPOSAL (JUNE 30 ORIGINAL TECHNICAL PROPOSAL AND THE DECEMBER 1969 PRICE PROPOSAL) IS TECHNICALLY UNSATISFACTORY.

THIS OFFICE, THEREFORE RECOMMENDS AWARD OF THE RAIL CONTRACT TO TOLIS CAIN CORPORATION." ATTACHED TO THE MEMORANDUM WAS A TABLE ENTITLED "ANALYSIS OF RAIL PRICES AND MAN/HOURS":

"FINAL PROPOSAL

PROFESSIONAL CLERICAL

JUNE 30 PRICE FINAL PRICE HOURS HOURS

TAURUS $285,825 $192,600 5,223 7,017

TOLIS-CAIN $110,048 $234,70011,450 12,160

SBC $275,970 $319,000 10,776 11,960

GOVERNMENT

ESTIMATE $300,000 $300,000 9,825 13,315."

THE RECORD SHOWS THAT A COMPARISON WAS THEN MADE OF ALL POSSIBLE COMBINATIONS OF OFFERORS AND CONTRACT TYPES FOR PERFORMANCE OF THE RAIL AND MOTOR PROJECTS. EVERY OFFEROR WAS PAIRED WITH EVERY OTHER OFFEROR AND TO THE EXTENT POSSIBLE, PRICES OF THESE COMBINATIONS WERE COMPARED ON THE BASIS OF FIRM-FIXED-PRICE, COST-PLUS-FIXED-FEE (CPFF), CPFF WITH CEILING, AND CPFF WITH COST-SHARING TYPE CONTRACTS. THE CONTRACTING OFFICER CONCLUDED FROM THIS COMPARISON THAT TOLIS-CAIN WAS FIRST IN CONSIDERATION FOR AWARDS UNDER BOTH RFP-065 AND RFP-085, SINCE IN BOTH INSTANCES THAT FIRM HAD PROPOSED THE LOWEST PRICE OF ANY TECHNICALLY ACCEPTABLE FIRM. ADDITION TO ITS SEPARATE PROPOSALS, TOLIS-CAIN HAD SUBMITTED A "COMBINED" PROPOSAL IN WHICH IT OFFERED TO PERFORM BOTH PROJECTS FOR A REDUCTION IN CONTRACT PRICE OF $60,000. THEREFORE, THE CONTRACTING OFFICER AWARDED TOLIS-CAIN ONE CONTRACT FOR THE WORK TO BE PERFORMED UNDER BOTH SOLICITATIONS. IT IS THE ADMINISTRATIVE POSITION THAT THE "NEXT BEST ALTERNATIVE WOULD HAVE BEEN TO MAKE SEPARATE AWARDS TO TOLIS-CAIN AT A HIGHER (TOTAL) PRICE."

THE PRINCIPAL BASIS OF YOUR PROTEST IS THAT IT WAS IMPROPER TO AWARD ONE CONTRACT PURSUANT TO TWO SEPARATE SOLICITATIONS, NEITHER OF WHICH REFERRED TO THE OTHER. YOU STATE IN YOUR LETTER OF MAY 22, 1970, THAT THERE IS NO INDICATION IN RFP-065, TO WHICH TAURUS RESPONDED, THAT TO BE CONSIDERED FOR THE AWARD THEREUNDER, "A CONTRACTOR WHO SUBMITS A BID UNDER RFP-065 MUST ALSO SUBMIT ONE UNDER RFP-085." YOU CONTEND THAT DOT, BY FAILING TO INFORM OFFERORS THAT THE BASIS FOR THE AWARD HAD BECOME THE TOTAL PRICE FOR PERFORMANCE OF BOTH PROJECTS, DID NOT OBTAIN THE MAXIMUM PRACTICABLE COMPETITION ENVISIONED BY FEDERAL PROCUREMENT REGULATIONS (FPR) 1-3.101(C) AND FPR 1-3.101(D). FURTHER, YOU MAINTAIN THAT IN NOT INCLUDING IN RFP- 065 THE NOTIFICATION THAT A COMBINED PROPOSAL UNDER BOTH RFP-065 AND RFP- 085 WOULD BE CONSIDERED, DOT FAILED TO COMPLY WITH FPR 1-3.802(C) WHICH REQUIRES THAT: "REQUESTS FOR PROPOSALS SHALL CONTAIN THE INFORMATION NECESSARY TO ENABLE A PROSPECTIVE OFFEROR TO PREPARE A QUOTATION PROPERLY."

NEITHER SOLICITATION REFERS TO THE OTHER. HOWEVER, AS RELATED PORTIONS OF A LARGER DOT PROGRAM, THE SOLICITATIONS WERE ISSUED AND PROCESSED CONCURRENTLY. IN RESPONSE TO YOUR ARGUMENT, IT IS ADMINISTRATIVELY REPORTED:

"ALL THROUGH THE PROCUREMENT PROCESS BOTH PROCUREMENTS, -065 AND 085, WERE HANDLED AS SEPARATE PROCUREMENTS AND THERE WAS NO CONTEMPLATION ON THE PART OF THE GOVERNMENT TO MAKE A COMBINED AWARD UNLESS AND UNTIL IT WAS DETERMINED THAT A COMBINED AWARD WOULD NOT WORK TO THE DETRIMENT OF ANY OFFEROR."

WE BELIEVE THE RECORD SUPPORTS THE ADMINISTRATIVE POSITION THAT THE SUBMISSION OF A PROPOSAL UNDER RFP-085, OR A "COMBINED PROPOSAL," WAS NOT A PREREQUISITE FOR AWARD UNDER RFP-065. IN THIS REGARD, WE NOTE THAT ALL PROPOSALS UNDER BOTH SOLICITATIONS WERE EVALUATED AND TECHNICALLY RANKED SEPARATELY. AMONG THE FIRMS SELECTED FOR FINAL NEGOTIATIONS WERE SBC, TAURUS AND MRI, EACH OF WHICH SUBMITTED A PROPOSAL UNDER ONLY ONE OF THE SOLICITATIONS. IN CONTRAST, THE SOLE FIRM OTHER THAN TOLIS-CAIN WHICH SUBMITTED A "COMBINED PROPOSAL" INITIALLY, WAS ELIMINATED FROM FURTHER NEGOTIATIONS IN VIEW OF ITS RELATIVELY LOW TECHNICAL RANKING. FINALLY, ALL CONCEIVABLE COMBINATIONS OF OFFERORS AND CONTRACT TYPES WERE EXAMINED BEFORE THE CONCLUSION WAS REACHED THAT TOLIS-CAIN WAS IN LINE FOR SEPARATE AWARDS UNDER BOTH SOLICITATIONS. ONLY THEN WAS THE DECISION MADE TO AWARD ONE CONTRACT TO TOLIS-CAIN FOR BOTH PROJECTS. UNDER THESE CIRCUMSTANCES, AND IN VIEW OF THE NUMBER OF SOLICITATIONS ISSUED AND RESPONSES RECEIVED, WE ARE UNABLE TO CONCLUDE THAT DOT FAILED TO OBTAIN THE MAXIMUM PRACTICABLE COMPETITION FOR THESE PROCUREMENTS. FURTHER, BECAUSE THE AWARD OF A SINGLE CONTRACT TO TOLIS-CAIN WAS PRECEDED BY THE DETERMINATION THAT THAT FIRM WOULD HAVE RECEIVED AWARDS UNDER THE SEPARATE SOLICITATIONS, WE DO NOT BELIEVE THAT THE OFFERORS WERE COMPETING ON AN UNEQUAL BASIS.

DURING THE DECEMBER 1969 NEGOTIATIONS, TAURUS OFFERED TO SUBMIT A PROPOSAL UNDER RFP-085. YOU HAVE OBJECTED TO THE REFUSAL BY DOT TO ACCEPT SUCH A PROPOSAL. RFP-085 ESTABLISHED JUNE 30, 1969, AS THE CLOSING DATE FOR RECEIPT OF PROPOSALS, AND INCORPORATED PARAGRAPH 8 OF STANDARD FORM 33A, JULY 1966, WHICH PROHIBITS THE CONSIDERATION OF OFFERS RECEIVED AFTER SUCH DATE, WITH CERTAIN EXCEPTIONS NOT RELEVANT HERE. IT IS THEREFORE OUR OPINION THAT DOT PROPERLY REJECTED YOUR OFFER TO SUBMIT SUCH A PROPOSAL IN DECEMBER 1969.

YOUR SECOND CONTENTION IS THAT THE TECHNICAL EVALUATION OF PROPOSALS WAS IMPROPER IN SEVERAL RESPECTS, AND LED TO THE ERRONEOUS CONCLUSION THAT TOLIS-CAIN'S PROPOSALS UNDER BOTH SOLICITATIONS WERE ACCEPTABLE WHILE TAURUS' PROPOSAL WAS UNACCEPTABLE. YOU MAINTAIN THAT TOLIS-CAIN SHOULD HAVE BEEN ELIMINATED FROM CONSIDERATION FOR AWARD OF THE CONTRACT WHEN ITS PROPOSALS FAILED TO RECEIVE THE SCORE OF 75 ESTABLISHED BY THE EVALUATION TEAM FOR MINIMALLY ACCEPTABLE TECHNICAL PROPOSALS. IN 50 COMP. GEN. (B- 169645(1), JULY 24, 1970), OUR OFFICE COMMENTED UPON A SIMILAR SCORING SYSTEM AS FOLLOWS:

" *** IT APPEARS THAT THE ADMINISTRATOR CONCLUDED THAT ESC WAS NOT ENTITLED TO A NEGOTIATION OPPORTUNITY INASMUCH AS ITS PROPOSAL FAILED TO ATTAIN THE 75 POINTS ESTABLISHED FOR AN ACCEPTABLE PROPOSAL, AND THEREFORE WAS NOT WITHIN A COMPETITIVE RANGE. ALTHOUGH ESC'S PROPOSAL MAY, OR MAY NOT, HAVE BEEN WITHIN A COMPETITIVE RANGE OF THE TWO ACCEPTABLE PROPOSALS, WE HAVE SERIOUS RESERVATIONS THAT A DECISION IN SUCH RESPECT BASED ON A COMPARISON OF AN OFFEROR'S SCORE WITH A PREDETERMINED SCORE FOR ACCEPTABILITY CONSTITUTES A PROPER METHOD OF DETERMINING WHICH PROPOSALS ARE WITHIN A 'COMPETITIVE RANGE,' OR THAT SUCH A METHOD IS CONDUCIVE TO OBTAINING THE MAXIMUM PRACTICABLE COMPETITION CONTEMPLATED BY THE STATUTES AND REGULATIONS. THIS WOULD APPEAR TO BE ESPECIALLY APPLICABLE IN SITUATIONS SUCH AS THE INSTANT PROCUREMENT IN WHICH FIVE OFFERORS WITH SCORES RANGING FROM 71.4 TO 74.8 WERE CONSIDERED OUTSIDE THE COMPETITIVE RANGE. IN THIS CONNECTION, IT MUST BE BORNE IN MIND THAT THE PRIMARY CONSIDERATION IN NEGOTIATED PROCUREMENTS IN DISCUSSIONS WITH ALL OFFERORS WITHIN A COMPETITIVE RANGE, AND BORDERLINE PROPOSALS SHOULD NOT BE AUTOMATICALLY EXCLUDED FROM CONSIDERATION IF THEY ARE REASONABLY SUSCEPTIBLE TO BEING MADE ACCEPTABLE BY ADDITIONAL OR CLARIFYING INFORMATION. COMPARE B 167417(2), SEPTEMBER 12, 1969."

AFTER ITS EXAMINATION OF INITIAL PROPOSALS, THE EVALUATION TEAM CONCLUDED THAT TOLIS-CAIN'S PROPOSAL UNDER RFP-065 WAS TECHNICALLY ACCEPTABLE AT A SCORE OF 74, WHICH PLACED IT FOURTH OF 14 OFFERORS TECHNICALLY, AND AT A PRICE OF $110,048. UNDER RFP-085, TOLIS-CAIN RECEIVED A SCORE OF 70, AND WAS RANKED THIRD OF 17 OFFERORS, AT A PRICE OF $111,755. IN VIEW OF TOLIS -CAIN'S TECHNICAL AND PRICE POSITION AMONG ALL THE OFFERORS, WE FIND NO LEGAL BASIS FOR OBJECTING TO THE AGENCY'S FAILURE TO ADHERE TO THE PREDETERMINED FIGURE OF 75 POINTS AS A CUT OFF FIGURE FOR TECHNICALLY ACCEPTABLE PROPOSALS, OR TO THE RESULTING DETERMINATION TO NEGOTIATE WITH TOLIS-CAIN AS A FIRM WITHIN THE COMPETITIVE RANGE.

YOU FURTHER ARGUE THAT THE EVALUATION OF PROPOSALS WAS DEFICIENT IN THAT THE TECHNICAL EVALUATION TEAM EXAMINED AND SCORED THE INITIAL PROPOSALS, BUT DID NOT REEVALUATE THOSE PROPOSALS WHICH WERE SUBSEQUENTLY REVISED AS A RESULT OF NEGOTIATIONS. YOU OBSERVE THAT THE EVALUATION TEAM CONCLUDED TAURUS' INITIAL PROPOSAL WAS TECHNICALLY ACCEPTABLE AND TOLIS-CAIN'S INITIAL RAIL PROPOSAL WAS ACCEPTABLE AT A SCORE OF 74 AND ITS MOTOR PROPOSAL WAS UNACCEPTABLE. YET, AT THE TIME OF CONTRACT AWARD, TAURUS' PROPOSAL WAS DETERMINED TO BE UNACCEPTABLE WHILE BOTH OF TOLIS-CAIN'S PROPOSALS WERE ACCEPTABLE. YOU QUESTION THE PROPRIETY OF THESE DETERMINATIONS SINCE THEY WERE NOT MADE IN CONJUNCTION WITH A COMPLETE REEVALUATION OF THE REVISED PROPOSALS BY THE TECHNICAL EVALUATION TEAM.

THE EVALUATION TEAM EXAMINED THE INITIAL PROPOSALS, GRADED THEM UNDER ESTABLISHED CRITERIA, ORDERED THEM BY TECHNICAL RANKING, PROVIDED NARRATIVE COMMENTS UPON THEM IDENTIFYING STRENGTHS AND WEAKNESSES, AND STATED WHICH PROPOSALS WERE TECHNICALLY ACCEPTABLE IN ITS JUDGMENT. WHEN REVISED PROPOSALS WERE RECEIVED AS A RESULT OF NEGOTIATIONS, THEY WERE REEVALUATED BY THE PROJECT OFFICER FOR THE PROCUREMENTS, WHO INFORMALLY CONSULTED WITH TECHNICAL PERSONNEL WITHIN DOT. THE DEVELOPMENT OF TARGET PRICES FOR THE NEGOTIATIONS AND PRICE ANALYSES WAS PERFORMED BY THE CHIEF OF THE FEDERAL AVIATION ADMINISTRATION PRICING STAFF. THE CONCLUSION THAT TAURUS' REVISED PROPOSAL WAS TECHNICALLY UNSATISFACTORY WAS EXPRESSED IN THE MEMORANDUM DATED JANUARY 28, 1970, QUOTED ABOVE, FROM THE PROJECT OFFICER TO THE CONTRACTING OFFICER.

THE CONTRACTING OFFICER, AS THE AGENT OF THE GOVERNMENT AUTHORIZED TO ENTER INTO AND ADMINISTER CONTRACTS ON BEHALF OF THE GOVERNMENT, BEARS THE RESPONSIBILITY FOR "PERFORMING OR HAVING PERFORMED ALL ADMINISTRATIVE ACTIONS NECESSARY FOR EFFECTIVE CONTRACTING." FPR 1 3.801-2(A). IN THE EXERCISE OF THIS RESPONSIBILITY, THE CONTRACTING OFFICER IS EXPECTED TO CONSULT WITH AND OBTAIN THE ADVICE OF SPECIALISTS UPON THE DEPARTMENT'S STAFF. FPR 1-3.801-2(A) AND (B). HOWEVER, THE CONTRACTING OFFICER MAY NOT TRANSFER HIS RESPONSIBILITIES TO THESE SPECIALISTS, AND THE EXTENT TO WHICH SUCH ADVICE IS SOUGHT AND THE FORM IN WHICH IT IS RECEIVED IS LARGELY FOR THE DISCRETION OF THE CONTRACTING OFFICER.

IT IS A WELL-ESTABLISHED TECHNIQUE TO PROVIDE TECHNICAL ADVICE TO THE CONTRACTING OFFICER BY THE CREATION OF A TEAM OF EVALUATORS WHO GRADE PROPOSALS AGAINST A SET OF CRITERIA. HOWEVER, WE ARE AWARE OF NO PROVISION IN THE FPR OR THE DEPARTMENT OF TRANSPORTATION PROCUREMENT REGULATIONS (DOTPR) WHICH REQUIRES THAT TECHNICAL EVALUATIONS MUST BE MADE BY THE TEAM METHOD, OR THAT ALL SUBSEQUENT REVISIONS OF SUCH PROPOSALS MUST BE EVALUATED BY THAT METHOD IF INITIAL PROPOSALS ARE EVALUATED BY A TEAM. PROCEDURES FOR THE EVALUATION OF PROPOSALS RECEIVED UNDER RFP'S - 065 AND -085 WERE ALSO ESTABLISHED BY A MEMORANDUM FROM THE DIRECTOR, OFFICE OF SYSTEMS REQUIREMENTS, PLANS AND INFORMATION, DEPARTMENT OF TRANSPORTATION. IN REGARD TO THE USE OF AN EVALUATION TEAM, PARAGRAPHS AND 4 OF THE MEMORANDUM PROVIDED:

"3. THE FIRST REVIEW OF THE PROPOSALS SHOULD BE DONE INDEPENDENTLY BY EACH MEMBER OF THE EVALUATION TEAM.

"4. FOLLOWING THE INITIAL INDEPENDENT REVIEW, THE ENTIRE EVALUATION TEAM SHOULD MEET, EXCHANGE VIEWPOINTS AND JUDGMENTS, AND SELECT CANDIDATES DESERVING FURTHER CONSIDERATION BECAUSE OF THEIR TECHNICAL SUPERIORITY. SUBSEQUENT REVIEWS MAY BE HELD AT THE DISCRETION OF THE EVALUATION TEAM." THUS, WHILE IT APPEARS THAT THE EVALUATION TEAM COULD CONDUCT MORE THAN ONE REVIEW OF THE INITIAL PROPOSALS UNDER THE PROCEDURES GOVERNING THE INSTANT PROCUREMENTS, THERE WAS NO REQUIREMENT THAT REVISED PROPOSALS BE EVALUATED BY THE TEAM.

YOU ALSO CLAIM THE CONCLUSION THAT TAURUS' REVISED PROPOSAL WAS UNACCEPTABLE WAS ERRONEOUS, BECAUSE THE REDUCTION IN PRICE AND MAN/HOURS OF EFFORT MADE IN THE PROPOSAL WAS ATTRIBUTABLE TO: (1) THE ELIMINATION OF THE PREPARATION OF A MILING TABLE; (2) THE SUBSTITUTION OF A LARGER AND MORE EFFICIENT COMPUTER; AND (3) THE APPLICATION OF A LOWER OVERHEAD RATE AS DETERMINED BY GOVERNMENT AUDIT. IT IS YOUR POSITION THAT TAURUS' REVISED PROPOSAL DID NOT SUBSTANTIALLY DIFFER FROM THE INITIAL PROPOSAL WHICH WAS DEEMED ACCEPTABLE BY THE TECHNICAL EVALUATION TEAM.

WE UNDERSTAND THAT YOU PRESENTED THESE EXPLANATIONS DURING THE FINAL NEGOTIATIONS. HOWEVER, THE REPORT FURNISHED OUR OFFICE BY THE DEPARTMENT OF TRANSPORTATION PROVIDED THE FOLLOWING EXPLANATION FOR THE REJECTION OF TAURUS' REVISED PROPOSAL:

"TAURUS' FINAL PROPOSAL WAS DETERMINED TO BE TECHNICALLY DEFICIENT IN THAT THE LEVEL OF EFFORT PROPOSED CLEARLY SHOWED A LACK OF UNDERSTANDING ON TAURUS' PART OF THE NATURE AND SCOPE OF THE PROJECT BEING CONTRACTED FOR. DESPITE DOT EFFORTS DURING NEGOTIATION TO POINT OUT DEFICIENCIES IN THEIR PROPOSAL TO TAURUS, THE TAURUS REPRESENTATIVES WERE NEVER ABLE TO APPRECIATE FULLY THE EFFORT BEING CONTRACTED FOR, AND IT WAS THEREFORE NECESSARY TO CONCLUDE THAT THE FINAL TAURUS PROPOSAL WAS UNSATISFACTORY. THIS IS DOCUMENTED IN THE JANUARY 28, 1970 MEMORANDUM (FROM THE PROGRAM OFFICER). THE MEMORANDUM CONCLUDES THAT TAURUS WAS OFFERING TO PERFORM IN 5,223 PROFESSIONAL AND 7,017 CLERICAL MAN/HOURS, TASKS ESTIMATED BY OUR PROGRAM OFFICE TO REQUIRE 9,825 PROFESSIONAL AND 13,315 CLERICAL MAN/HOURS. SIGNIFICANTLY, AFTER THE CONCLUSION OF THE TECHNICAL MEETINGS, THE OTHER OFFERORS CONSIDERABLY INCREASED THE MAN/HOUR ESTIMATES AND THE PRICES SET FORTH IN THEIR ORIGINAL PROPOSALS. THE TABLE (ATTACHMENT 3) ILLUSTRATES THAT THE OTHER FIRMS UNDERSTOOD AND REACTED TO THE DOT ASSESSMENT OF THE REQUIREMENT AND THAT TAURUS, WHICH DROPPED ITS ORIGINAL OFFER FROM $285,825 TO $192,600, WAS THE ONLY FIRM THAT DID NOT RECOGNIZE THE MAGNITUDE OF THE REQUIREMENT."

WE REGARD THE DETERMINATION OF WHETHER THE MAN/HOURS OF EFFORT PROPOSED ARE ADEQUATE FOR CONTRACT PERFORMANCE AS A FACTUAL QUESTION OF A TECHNICAL NATURE, AND WE DO NOT QUESTION THE ADMINISTRATIVE JUDGMENT ON SUCH MATTERS ABSENT A CLEAR SHOWING OF ARBITRARINESS. SEE B-167307, MARCH 30, 1970, AND CASES CITED THEREIN. WE DO NOT FIND SUCH A SHOWING IN THE PRESENT RECORD.

YOUR FINAL CONTENTION IS THAT THE PROCURING ACTIVITY IMPROPERLY DISCLOSED INFORMATION SUBMITTED BY TAURUS IN CONFIDENCE, BY SUGGESTING TO TOLIS-CAIN THAT THEY OBTAIN THE SERVICES OF A CONSULTANT WHICH WAS UNDER "EXCLUSIVE" CONTRACT TO TAURUS. ENCLOSURE 1 TO RFP-065, ENTITLED "REQUIREMENTS & EVALUATION OF TECHNICAL PROPOSALS," PROVIDED IN PARAGRAPH II (C) THEREOF:

"(C) INCLUDE RESUMES OF PROPOSED PERSONNEL WHO ARE NOT FULL-TIME CONTRACTOR EMPLOYEES. KEY EACH RESUME TO ITEMS 1 AND 2 DESCRIBED IN ARTICLE I OF THE PROPOSAL, AND STATE ACCURATELY THE PARTICIPATION OF THAT INDIVIDUAL IN EACH PROJECT. EACH RESUME OF NON FULL-TIME PERSONNEL, IN THIS PART, MUST BE ACCOMPANIED BY A SIGNED STATEMENT OF INTENT FROM THE PERSON PROPOSED, AFFIRMING HIS INTENTION TO PARTICIPATE IN THE PROJECT ACCORDING TO HIS DESCRIBED FUNCTION AND THE AMOUNT OF TIME HE WILL DEVOTE TO THE PROJECT."

IN COMPLIANCE WITH THIS REQUIREMENT, TAURUS' INITIAL PROPOSAL INCLUDED A DOCUMENT, DATED JUNE 28, 1969, IN WHICH A PROMINENT STATISTICIAN AGREED THAT IF TAURUS WAS AWARDED THE CONTRACT UNDER RFP 065, THE STATISTICIAN WOULD WORK AS A CONSULTANT TO TAURUS FOR THE CONTRACTUAL PERIOD.

TOLIS-CAIN'S INITIAL PROPOSAL UNDER RFP-065 STATED THAT IF THAT FIRM WERE AWARDED THE CONTRACT, IT WOULD ATTEMPT TO OBTAIN THE SERVICES OF ANOTHER WELL-KNOWN CONSULTANT. HOWEVER, THIS INDIVIDUAL WAS NOT REPRESENTED AS THEN BEING A CONSULTANT TO TOLIS-CAIN AND NO AGREEMENT FROM HIM WAS SUBMITTED, IN VIEW OF HIS PRACTICE OF NOT COMMITTING HIMSELF TO ANY PROPOSAL IN ADVANCE. SUBSEQUENTLY, TOLIS-CAIN DECIDED TO ULILIZE THE SERVICES OF THE SAME STATISTICIAN ENGAGED BY TAURUS, AND IN A LETTER DATED DECEMBER 2, 1969, THE STATISTICIAN ADVISED TOLIS-CAIN "THAT I WOULD BE MOST HAPPY TO SERVE AS A CONSULTANT TO TOLIS-CAIN CORPORATION IN THE DESIGN OF THE NATIONAL MOTOR FREIGHT OR RAIL FREIGHT FLOW DATA SYSTEM."

TAURUS' LETTER OF PROTEST DATED MARCH 5, 1970, STATES THAT TOLIS-CAIN HAD, ON A NUMBER OF OCCASIONS, ATTEMPTED TO OBTAIN THE SERVICE OF TAURUS' CONSULTANT. TAURUS ALSO ALLEGED THAT THIS CONSULTANT'S "NAME AND QUALIFICATIONS WERE RELEASED TO OUR COMPETITION BY THE CONTRACTING OFFICE OF THE DEPARTMENT OF TRANSPORTATION" AND THAT "THE RELEASE OF THIS INFORMATION WAS AN UNFAIR ACT AND *** VIOLATES THE CONTRACTING OFFICER/CONTRACTOR RELATIONSHIP WHICH MUST BE MAINTAINED." TAURUS APPARENTLY REGARDS AS PROPRIETARY TO IT ANY INFORMATION CONCERNING THE IDENTITY AND QUALIFICATIONS OF ITS CONSULTANT. IN THIS CONNECTION, TAURUS' PROPOSAL OF JUNE 30, 1969, PROVIDES THAT THE DATA SUBMITTED WITH THE PROPOSAL "SHALL NOT BE DISCLOSED OUTSIDE THE GOVERNMENT OR BE DUPLICATED, USED OR DISCLOSED IN WHOLE OR IN PART FOR ANY PURPOSE OTHER THAN TO EVALUATE THE PROPOSAL." THIS PROVISION CONCLUDES: "THIS RESTRICTION DOES NOT LIMIT THE GOVERNMENT'S RIGHT TO USE THE INFORMATION CONTAINED IN SUCH DATA IF IT IS OBTAINED FROM ANOTHER SOURCE."

THE DEPARTMENT OF TRANSPORTATION CONCEDES THAT IT DISCUSSED THE QUALIFICATIONS OF SEVERAL CONSULTANTS, INCLUDING THE INDIVIDUAL UNDER AGREEMENT TO TAURUS, WITH TOLIS-CAIN AND THE OTHER OFFERORS. HOWEVER, DOT OBSERVES THAT TAURUS' CONSULTANT WAS EXTREMELY WELL KNOWN IN THE FIELD OF STATISTICS RELATED TO THE INSTANT PROCUREMENTS, THAT HE HAD OFFERED HIS SERVICES AS A CONSULTANT TO DOT, AND THAT HE HAD SUBMITTED PROPOSALS FOR PERFORMING PORTIONS OF THE WORK UNDER BOTH RFP-065 AND RFP-085. THEREFORE, THE PROCURING ACTIVITY WAS WELL AWARE OF THIS CONSULTANT AND HIS QUALIFICATIONS FROM SOURCES OTHER THAN TAURUS' PROPOSAL. UNDER THESE CIRCUMSTANCES, WE SEE NO IMPROPRIETY IN DISCUSSING DURING NEGOTIATIONS THE POSSIBILITY OF THE USE OF THIS CONSULTANT BY OTHER OFFERORS.