B-169344, JUN. 30, 1970

B-169344: Jun 30, 1970

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NEGOTIATION IS BASED ON 41 U.S.C. 252(C)(10) RELATING TO CONTRACTS FOR WHICH IT IS IMPRACTICABLE TO OBTAIN COMPETITION SINCE IMPOSSIBLE TO DRAFT ADEQUATE SPECIFICATIONS. CONTENDING NEGOTIATION SHOULD HAVE BEEN CONDUCTED WITH HIM (RATED 7TH) OFFERS NO BASIS FOR OBJECTION SINCE ONLY 5 OF 33 PROPOSALS WERE DETERMINED IN COMPETITIVE RANGE AND RECOMMENDED FOR NEGOTIATION. IS PRIMARILY MATTER OF ADMINISTRATIVE DISCRETION. STATED THAT AWARD WOULD BE MADE TO FIRM WHOSE PROPOSAL IS MOST ADVANTAGEOUS TO GOVERNMENT CONSIDERING TECHNICAL ABILITY. UNSUCCESSFUL OFFEROR WHO CONTENDS HE QUALIFIED AS LOWEST RESPONSIVE OFFEROR AND THAT NEGOTIATIONS SHOULD HAVE BEEN CONDUCTED WITH HIM (RATED 7TH) OFFERS NO BASIS FOR OBJECTION SINCE ONLY 5 PROPOSALS WERE DETERMINED IN COMPETITIVE RANGE AND RECOMMENDED FOR NEGOTIATION.

B-169344, JUN. 30, 1970

CONTRACTS--NEGOTIATION--COMPETITION--ADEQUATE-- UNDER REQUEST FOR PROPOSALS FOR SCREENING AND PROCESSING OF VISTA VOLUNTEER APPLICATIONS DURING 1970, NEGOTIATION IS BASED ON 41 U.S.C. 252(C)(10) RELATING TO CONTRACTS FOR WHICH IT IS IMPRACTICABLE TO OBTAIN COMPETITION SINCE IMPOSSIBLE TO DRAFT ADEQUATE SPECIFICATIONS. UNSUCCESSFUL LOW OFFEROR WHO PROTESTS AWARD, CONTENDING NEGOTIATION SHOULD HAVE BEEN CONDUCTED WITH HIM (RATED 7TH) OFFERS NO BASIS FOR OBJECTION SINCE ONLY 5 OF 33 PROPOSALS WERE DETERMINED IN COMPETITIVE RANGE AND RECOMMENDED FOR NEGOTIATION. DETERMINATION OF COMPETITIVE RANGE, INCLUDING PRICE AND TECHNICAL CAPABILITY, IS PRIMARILY MATTER OF ADMINISTRATIVE DISCRETION. CONTRACTS--NEGOTIATION--LIMITATION OR NEGOTIATION--PROPRIETY REQUEST FOR PROPOSALS FOR SCREENING AND PROCESSING VISTA VOLUNTEER APPLICATIONS DURING 1970, STATED THAT AWARD WOULD BE MADE TO FIRM WHOSE PROPOSAL IS MOST ADVANTAGEOUS TO GOVERNMENT CONSIDERING TECHNICAL ABILITY, MOST FAVORABLE PRICING AND OTHER FACTORS. UNSUCCESSFUL OFFEROR WHO CONTENDS HE QUALIFIED AS LOWEST RESPONSIVE OFFEROR AND THAT NEGOTIATIONS SHOULD HAVE BEEN CONDUCTED WITH HIM (RATED 7TH) OFFERS NO BASIS FOR OBJECTION SINCE ONLY 5 PROPOSALS WERE DETERMINED IN COMPETITIVE RANGE AND RECOMMENDED FOR NEGOTIATION. DETERMINATION OF COMPETITIVE RANGE IS PRIMARILY MATTER OF ADMINISTRATIVE DISCRETION WHICH WILL NOT BE DISTURBED ABSENT BAD FAITH.

TO RESEARCH SERVICE BUREAU, INC.:

WE REFER TO YOUR LETTER OF MARCH 16, 1970, PROTESTING AGAINST THE AWARD BY THE OFFICE OF ECONOMIC OPPORTUNITY (OEO) OF A CONTRACT TO KOBA ENTERPRISES, INC. (KOBA), FOR THE SCREENING AND PROCESSING OF VISTA VOLUNTEER APPLICATIONS DURING THE CALENDAR YEAR 1970. THE SOLICITATION IS REQUEST FOR PROPOSALS (RFP) V70-272, DATED NOVEMBER 28, 1969, AND THE CONTRACT IS B00-5095, DATED MARCH 2, 1970.

NEGOTIATION OF THE PROCUREMENT IS BASED ON THE AUTHORITY, 41 U.S.C. 252(C)(10), RELATING TO PURCHASES AND CONTRACTS FOR WHICH IT IS IMPRACTICABLE TO OBTAIN COMPETITION, AS IMPLEMENTED BY FEDERAL PROCUREMENT REGULATION (FPR) 1-2.210(A)(13), WHICH CITES IMPOSSIBILITY OF DRAFTING ADEQUATE SPECIFICATIONS OR ANY OTHER ADEQUATELY DETAILED DESCRIPTION OF THE REQUIRED PROPERTY OR SERVICES AS A CIRCUMSTANCE JUSTIFYING THE USE OF THE AUTHORITY GRANTED BY 41 U.S.C. 252(C), AND THE CONTRACTING AUTHORITY GRANTED TO THE DIRECTOR, OEO, BY SECTION 602(N) OF THE ECONOMIC OPPORTUNITY ACT OF 1964, 42 U.S.C. 2942(N).

YOU CONTEND THAT YOU QUALIFY AS THE LOWEST RESPONSIVE OFFEROR UNDER THE RFP BY REASON OF THE FACT THAT YOUR UNIT PRICE OF $2.89 IS LOWER THAN THE UNIT PRICE OF $2.90 AT WHICH AWARD WAS MADE TO KOBA, AND BY REASON OF YOUR PAST SATISFACTORY PERFORMANCE OF EVALUATIONS OF VISTA VOLUNTEER APPLICANT FOLDERS UNDER OEO CONTRACT B99-4800. IN THIS CONNECTION, YOU ASSERT THAT THE WORK YOU HAVE PERFORMED UNDER CONTRACT B99-4800 IS TECHNICALLY MORE DIFFICULT THAN THE WORK REQUIRED BY RFP V70-272, AND YOU STATE THAT OEO'S PROCUREMENT DIVISION HAS RECOGNIZED YOUR SATISFACTORY PERFORMANCE.

YOU STATE THAT YOU HAVE BEEN ADVISED THAT OEO RATED YOUR PROPOSAL SEVENTH, AND CONDUCTED NEGOTIATIONS ONLY WITH THE SIX OFFERORS RATED ABOVE YOU. YOU CONTEND THAT THIS IS HARDLY CONSISTENT WITH YOUR PAST PROVEN SATISFACTORY PERFORMANCE, AND YOU SPECIFICALLY REQUEST THAT KOBA'S PROPOSAL BE REVIEWED IN LIGHT OF THE EVALUATION FACTORS SPECIFIED IN THE RFP.

THE RFP INCLUDED THE FOLLOWING PERTINENT LANGUAGE REGARDING EVALUATION OF PROPOSALS AND AWARD:

"AN AWARD WILL BE MADE TO THE FIRM WHOSE PROPOSAL IS DETERMINED TO BE MOST ADVANTAGEOUS TO THE GOVERNMENT AFTER CONSIDERING TECHNICAL ABILITY, THE MOST FAVORABLE PRICING ARRANGEMENT AND OTHER FACTORS. THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY PROPOSAL, AND, AT ANY TIME AFTER THE CLOSING DATE TO CONDUCT NEGOTIATIONS TO THE EXTENT THE GOVERNMENT DEEMS NECESSARY AND APPROPRIATE. HOWEVER, YOUR PROPOSAL SHOULD BE SUBMITTED ON THE MOST FAVORABLE BASIS AS TO PRICE, DELIVERY OR TIME FOR COMPLETION, AND OTHER FACTORS, SINCE THE GOVERNMENT MAY ELECT TO MAKE AN AWARD WITHOUT FURTHER DISCUSSIONS OR NEGOTIATIONS.

"TECHNICAL PROPOSALS WILL BE EVALUATED PURSUANT TO THE FOLLOWING FACTORS:

1. CLARITY OF PROPOSAL AND UNDERSTANDING OF RFP.

2. QUALIFICATIONS OF CONTRACTOR, PROJECT DIRECTOR AND SUPPORT PERSONNEL.

3. APPROACH OF PROPOSAL.

4. REPUTATION OF CONTRACTOR, INCLUDING EFFICIENCY, EFFECTIVENESS, RELIABILITY AND RECORD OF PAST ACHIEVEMENTS IN SIMILAR WORK.

5. METHODOLOGY FOR CARRYING OUT REQUIRED WORK AND ASSURING QUALITY CONTROL.

6. ABILITY TO DELIVER VOLUME REQUIREMENTS WITHIN TIME CONSTRAINTS."

THE RFP SCHEDULE INCLUDED AS A WORK ESTIMATE 20,000 TO 35,000 APPLICATIONS TO BE SCREENED AND PROCESSED; ADVISED PROSPECTIVE OFFERORS THAT THE APPLICATIONS, WHICH WOULD ORIGINATE IN SEVEN REGIONAL OEO OFFICES, WOULD BE MAILED OR PICKED UP DAILY FROM SUCH OFFICES; AND STATED THAT THE CONTRACTOR MIGHT ELECT EITHER TO ESTABLISH REGIONAL OFFICES OR TO OPERATE FROM A SINGLE CENTRAL LOCATION. THE CONTRACTOR IS RESPONSIBLE FOR SELECTING PERSONNEL WHO ARE PERSONALLY AND PROFESSIONALLY QUALIFIED TO PERFORM THE WORK IN QUESTION.

THE CONTRACTING OFFICER REPORTS THAT 99 SOURCES WERE SOLICITED, AND 33 PROPOSALS WERE RECEIVED. AN ABSTRACT OF THE PROPOSALS SHOWS THAT THE PRICES QUOTED RANGED FROM A LOW OF ?50 PER UNIT TO A HIGH OF $15 PER UNIT.

IT IS REPORTED THAT THE PROPOSALS WERE FIRST EVALUATED BY A CONTRACT EVALUATION PANEL, WHICH CONSIDERED ALL OF THE FACTORS SET FORTH IN THE RFP AND RATED THE PROPOSALS IN ORDER OF THEIR MERIT UNDER THE STATED FACTORS, WITHOUT CONSIDERATION OF PRICE.

FIVE PROPOSALS, INCLUDING KOBA'S, RECEIVED SCORES RANGING FROM 69.3 TO 90.8, AND WERE DETERMINED TO BE IN A COMPETITIVE RANGE AND RECOMMENDED BY THE EVALUATION PANEL FOR NEGOTIATIONS. ALL OTHER PROPOSALS, INCLUDING YOUR PROPOSAL, WHICH RANKED SEVENTH WITH A SCORE OF 67.7 POINTS, WERE CLASSED AS UNACCEPTABLE AND WERE NOT CONSIDERED FOR NEGOTIATIONS.

IN THE NEGOTIATIONS CONDUCTED WITH THE FIVE TOP RATED OFFERORS, PRINCIPAL EMPHASIS WAS PLACED BY OEO ON PRICING AND TECHNICAL COMPETENCY, AND ALL OFFERORS WERE AFFORDED AN OPPORTUNITY TO SUBMIT REVISED PRICING SCHEDULES ON A QUANTITY OF 25,000 APPLICATIONS. KOBA'S REVISED OFFER WAS LOWEST AT $2.90 PER UNIT WITH NO MINIMUM OR MAXIMUM GUARANTEES.

AS TO KOBA'S QUALIFICATIONS, THE CONTRACTING OFFICER ASSEMBLED PERTINENT INFORMATION AND DETERMINED, AS REQUIRED BY FEDERAL PROCUREMENT REGULATION (FPR) 1-1.31006, THAT KOBA IS A RESPONSIBLE PROSPECTIVE CONTRACTOR. THE SUPPORT FOR SUCH DETERMINATION INCLUDED EVIDENCE WHICH INDICATED THAT KOBA IS TECHNICALLY QUALIFIED TO PERFORM THE PROPOSED CONTRACT; THAT KOBA RENDERED A VERY SATISFACTORY AND TIMELY PERFORMANCE OF OEO CONTRACT B99- 4948; AND THAT KOBA HAS AN EXCELLENT CREDIT RATING AND ADEQUATE AVAILABLE FINANCING. ITS PROPOSAL WAS SCORED AT 76.8 BY THE EVALUATION PANEL, PLACING IT THIRD AMONG THE FIVE PROPOSALS APPROVED FOR NEGOTIATION, AND ITS PRICE, AS REVISED DURING NEGOTIATION, WAS THE LOWEST OF THE FIVE. THE CONTRACT NEGOTIATOR RECOMMENDED AWARD TO KOBA AT ITS REVISED PROPOSAL PRICE, AND THE CONTRACTING OFFICER APPROVED THE AWARD ON FEBRUARY 27, 1970.

WITH REFERENCE TO THE EVALUATION OF YOUR PROPOSAL, THE CHAIRMAN OF THE TECHNICAL EVALUATION PANEL MAKES THE FOLLOWING PERTINENT STATEMENTS:

" *** RSB'S PROPOSAL SCORE BEING 67.7 WAS DEFINITELY UNSATISFACTORY, AND, CONSEQUENTLY, THE FIRM WAS NOT RECOMMENDED FOR NEGOTIATIONS LEADING TO FINAL SELECTION AND AWARD.

"THE PROPOSAL FROM RSB DID NOT FULLY ADDRESS ITSELF TO THE COMPLEXITY AND VOLUME REQUIREMENTS OF THE PROCESSING OF 20-35,000 APPLICATIONS STATED IN THE RFP. INSTEAD, THEIR APPROACH IS QUITE OVERSIMPLIFIED WITHOUT GIVING SUFFICIENT CONSIDERATION TO DEMANDS OF THE APPLICANT PROCESSING OPERATION AS IT CONTRIBUTES TO THE EFFECTIVENESS OF THE VISTA PROGRAM. THEY TEND TO DESCRIBE THE MECHANICAL ASPECTS, OR THE SPECIFIC CLERICAL TASKS TO BE PERFORMED AND SHOW LITTLE CONCERN IF ANY FOR THE VOLUNTEER'S INTEREST AND SENSITIVITY BEHIND THE PAPER VOLUME. ALSO THERE IS NO MENTION AS TO HOW THEY WOULD IMPLEMENT THE WORK OR HOW THEY WOULD COPE WITH POTENTIAL PROBLEMS OF COORDINATION WITH THE OFFICES IN THE REGIONS OR OFFICES IN THE HEADQUARTERS.

"THEY APPEAR TO BE QUITE UNREALISTIC ESPECIALLY WITH RESPECT TO IMPLEMENTATION OF PROCESSING OF THE EXPECTED VOLUME OF FOLDERS STATED IN THE RFP. THUS, ALTHOUGH THEY CLAIM THEY WILL PROVIDE THE MANPOWER REQUIRED TO CARRY THE WORKLOAD ACCURATELY AND COMPLETELY, THEY PROPOSE TO DO THE JOB WITH ONLY 6 CLERKS AND ONE SUPERVISOR. THIS IS VERY INADEQUATE, AS ON THE BASIS OF OUR PREVIOUS EXPERIENCE, IT WOULD TAKE 16 PERSONS TO HANDLE THIS VOLUME. FURTHERMORE, RSB DOES NEITHER IDENTIFY THE PERSONS TO BE EMPLOYED AS TO WHETHER THEY WILL BE FULL TIME OR PART-TIME PEOPLE, NOR DO THEY DESCRIBE THEIR BACKGROUNDS AND QUALIFICATIONS OR ACCESSIBILITY STATUS.

"ADDITIONALLY, THEY GAVE NO DETAILS TO SUPPORT THEIR CLAIM OF HAVING PREVIOUS EXPERIENCE IN HANDLING A PROJECT SIMILAR TO VISTA APPLICANT PROCESSING. INSTEAD, THEY REFER TO THEIR PREVIOUSLY HELD APPLICANT EVALUATION CONTRACT WITH VISTA AS QUALIFIED RELEVANT EXPERIENCE. HOWEVER, THIS IS NOT RELEVANT TO THE PRESENT PROCESSING CONTRACT, WHICH INVOLVES PRIMARILY SUCH TASKS AS EFFICIENT AND ACCURATE COUNTING AND FILING OF REFERENCES AND APPLICATIONS AND STATUS CHECKS AND GENERAL CORRESPONDENCE WITH APPLICANTS. THESE TASKS ARE QUITE DIFFERENT FROM THOSE OF THE EVALUATION CONTRACT, WHICH INVOLVES PRIMARILY JUDGMENTAL, ASSESSMENT AND EVALUATIVE TASKS. BUT EVEN IF THE ASSESSMENT CONTRACT WAS SIMILAR AND RELEVANT TO THE APPLICANT PROCESSING CONTRACT, JUDGING FROM THEIR PREVIOUS PERFORMANCE ON THEIR ASSESSMENT CONTRACT THEIR CONSISTENCY OF QUALITY WAS QUESTIONABLE. IN FACT THEY WERE FORTUNATE IN BEING ABLE TO HIRE THE PREVIOUS CONTRACTOR'S SUPERVISOR (DAVID LAWSON) WHO MANAGED TO HELP THEM OUT AFTER THEY LOST THEIR PROPOSED SUPERVISORS GIVEN IN THEIR PROPOSAL.

"ALSO RSB'S PROPOSAL SHOWS LITTLE AWARENESS OR DETAILS REGARDING IMPLEMENTATION OF QUALITY CONTROL DESPITE THEIR CLAIM THAT THEY HAVE PERFORMED WELL IN THE PREVIOUS SIMILAR (?) CONTRACT WITH US. THE FACT IS, HOWEVER, THAT REGARDING THAT CONTRACT THEIR QUALITY HAS BEEN TENUOUS AS THEIR SUPERVISOR PARTICIPATED SPORADICALLY ON A PART-TIME BASIS. THEIR CONSULTANT PROVED TO BE MERE WINDOW DRESSING WITHOUT REAL FUNCTION, AS HE WAS NEVER USED DESPITE VERBAL WARNINGS FOR IMPROVED QUALITY.

"RAPID TURNOVER OF EVALUATORS (75 EVALUATORS IN 1 YEAR TO DO THE WORK OF 5-10 PEOPLE) NECESSITATED CONSTANT MONITORING AND AN ENORMOUS AMOUNT OF REPETITIVE CORRECTIONS WITH RESULTANT ADDITIONAL EXPENSE ON OUR PART IN VISTA SELECTION. AT TIMES, EVEN PICK-UP AND DELIVERY SERVICE WAS INEFFICIENT. *** "

FPR 1-3.805, RELATING TO SELECTION OF OFFERORS FOR NEGOTIATION AND AWARD, READS, IN PART, AS FOLLOWS:

"1-3.805-1 GENERAL.

"THE PROCEDURES SET FORTH IN THIS SECTION 1-3.805-1 ARE GENERALLY APPLICABLE TO NEGOTIATED PROCUREMENT. HOWEVER, THEY ARE NOT APPLICABLE WHERE THEIR USE WOULD BE INAPPROPRIATE, AS MAY BE THE CASE, FOR EXAMPLE, WHEN PROCURING RESEARCH AND DEVELOPMENT OR SPECIAL SERVICES (SUCH AS ARCHITECT-ENGINEER SERVICES) OR WHEN COST-REIMBURSEMENT TYPE CONTRACTING IS ANTICIPATED *** . WHILE THE LOWEST PRICE OR LOWEST COST TO THE GOVERNMENT IS PROPERLY THE DECIDING FACTOR IN SOURCE SELECTION IN MANY INSTANCES, AWARD OF A CONTRACT PROPERLY MAY BE INFLUENCED BY THE PROPOSAL WHICH PROMISES THE GREATEST VALUE TO THE GOVERNMENT IN TERMS OF POSSIBLE PERFORMANCE, ULTIMATE PRODUCIBILITY, GROWTH POTENTIAL, AND OTHER FACTORS.

"(A) AFTER RECEIPT OF INITIAL PROPOSALS, WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMITTED PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED *** ."

THE DETERMINATION OF COMPETITIVE RANGE, WHICH ENCOMPASSES BOTH PRICE AND TECHNICAL CAPABILITY, IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION WHICH WILL NOT BE DISTURBED IN THE ABSENCE OF A CLEAR SHOWING THAT SUCH DETERMINATION WAS AN ARBITRARY ABUSE OF DISCRETION.

ON THE BASIS OF THE FACTS REPORTED BY OEO, WHICH WE MUST ACCEPT AS CORRECT IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THEIR CORRECTNESS, WE ARE UNABLE TO CONCLUDE THAT THE DETERMINATION BY OEO THAT YOUR PROPOSAL WAS NOT ACCEPTABLE AND THEREFORE NOT WITHIN THE COMPETITIVE RANGE WAS IMPROPER.

IN THE CIRCUMSTANCES, AND ABSENT ANY INDICATION OF RECORD THAT THE NEGOTIATIONS WITH THE FIVE TOP RATED OFFERORS WHOSE PROPOSALS WERE ULTIMATELY DEEMED TO BE WITHIN A COMPETITIVE RANGE, OR THE DETERMINATIONS THAT THE REMAINING 28 PROPOSALS WERE TECHNICALLY UNACCEPTABLE, WERE NOT MADE IN GOOD FAITH, WE SEE NO SUPPORT FOR A CONCLUSION THAT THE AWARD TO KOBA, WHO SUBMITTED THE LOWEST PRICED ACCEPTABLE PROPOSAL AS A RESULT OF THE NEGOTIATIONS, WAS NOT IN THE INTEREST OF THE GOVERNMENT AS CONTEMPLATED BY THE PROCUREMENT STATUTE AND FPR 1-3.805-1. YOUR PROTEST IS THEREFORE DENIED.