B-169645, JUL 24, 1970, 50 COMP GEN 59

B-169645: Jul 24, 1970

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CONTRACTS - NEGOTIATION - EVALUATION FACTORS - CRITERIA A REQUEST FOR PROPOSALS THAT FAILED TO INCLUDE EVALUATION CRITERIA OR INDICATE THE CRITERIA'S RELATIVE IMPORTANCE BECAUSE OF THE ERRONEOUS BELIEF THESE STANDARDS WERE INAPPLICABLE TO CIVILIAN PROCUREMENT WAS DEFECTIVE AND WAS NOT IN ACCORDANCE WITH SOUND PROCUREMENT POLICY AND THE PUBLIC INTEREST. OVERLOOKED THAT A PRIMARY CONSIDERATION IN NEGOTIATED PROCUREMENT IS DISCUSSION WITH ALL OFFERORS IN A COMPETITIVE RANGE AND THAT BORDERLINE CASES SHOULD NOT AUTOMATICALLY BE EXCLUDED FROM CONSIDERATION. AS A RESULT MAXIMUM COMPETITION WAS NOT OBTAINED. THAT AN AWARD SHOULD HAVE BEEN MADE OR THAT AN OFFEROR SHOULD HAVE BEEN INFORMED OF THE UNACCEPTABILITY OF HIS PROPOSAL.

B-169645, JUL 24, 1970, 50 COMP GEN 59

CONTRACTS - NEGOTIATION - EVALUATION FACTORS - CRITERIA A REQUEST FOR PROPOSALS THAT FAILED TO INCLUDE EVALUATION CRITERIA OR INDICATE THE CRITERIA'S RELATIVE IMPORTANCE BECAUSE OF THE ERRONEOUS BELIEF THESE STANDARDS WERE INAPPLICABLE TO CIVILIAN PROCUREMENT WAS DEFECTIVE AND WAS NOT IN ACCORDANCE WITH SOUND PROCUREMENT POLICY AND THE PUBLIC INTEREST. ALSO THE SCORING OF AN OFFER BY COMPARISON WITH A PREDETERMINED SCORE, OVERLOOKED THAT A PRIMARY CONSIDERATION IN NEGOTIATED PROCUREMENT IS DISCUSSION WITH ALL OFFERORS IN A COMPETITIVE RANGE AND THAT BORDERLINE CASES SHOULD NOT AUTOMATICALLY BE EXCLUDED FROM CONSIDERATION, AND AS A RESULT MAXIMUM COMPETITION WAS NOT OBTAINED. THE REQUEST FOR PROPOSALS SHOULD BE AMENDED TO ESTABLISH THE OMITTED CRITERIA AND OFFERORS PERMITTED TO SUBMIT ADDITIONAL INFORMATION OR REVISE PROPOSALS, AND IF WITHIN A COMPETITIVE RANGE, AFFORDED THE OPPORTUNITY FOR DISCUSSION TO THE EXTENT REQUIRED BY SECTION 1-3.802(C) OF THE FEDERAL PROCUREMENT REGULATIONS. CONTRACTS - PROTESTS - FILING BEFORE OR AFTER AWARD UNDER THE PROCEDURE IN 4 C.F.R. 20.1, A BID PROTEST MAY BE FILED WITH THE UNITED STATES GENERAL ACCOUNTING OFFICE BEFORE AS WELL AS AFTER THE AWARD OF A CONTRACT AND, THEREFORE, IN FILING A PROTEST TO AN AWARD UNDER A REQUEST FOR PROPOSALS, THE REGULATION DOES NOT REQUIRE, AS A PREREQUISITE TO STANDING OR TIMELINESS, THAT AN AWARD SHOULD HAVE BEEN MADE OR THAT AN OFFEROR SHOULD HAVE BEEN INFORMED OF THE UNACCEPTABILITY OF HIS PROPOSAL. GENERAL ACCOUNTING OFFICE - DECISIONS - "DICTUM" TO CATEGORIZE THE VIEWS OF THE UNITED STATES GENERAL ACCOUNTING OFFICE CONCERNING AREAS IN AN AGENCY'S PROCUREMENT PRACTICES BROUGHT TO LIGHT BY A PROTEST WHERE REVISIONS ARE DESIRABLE AS "DICTUM" - AN ABBREVIATION OF OBITER DICTUM WHICH MEANS A REMARK OR OPINION UTTERED BY THE WAY - APPEARS FUTILE WHEN IT IS OBVIOUS THAT ANY ADMINISTRATIVE ACTIONS TAKEN THAT ARE CONTRARY TO SUCH STATED POSITIONS MAY RESULT IN THE DISALLOWANCE OF CREDIT IN THE DISBURSING OFFICER'S ACCOUNT.

TO THE SECRETARY OF TRANSPORTATION, JULY 24, 1970:

REFERENCE IS MADE TO A LETTER DATED MAY 22, 1970, FROM THE ADMINISTRATOR, FEDERAL RAILROAD ADMINISTRATION, FURNISHING A REPORT IN RESPONSE TO THE PROTEST OF THE ECONOMIC SCIENCES CORPORATION, INC. (ESC), AGAINST ANY AWARD UNDER REQUEST FOR PROPOSALS (RFP) NO. DOT-FR 00027.

THE ADMINISTRATOR RECOMMENDED THAT THE PROTEST BE DENIED AS UNTIMELY SINCE:

AT THE PRESENT TIME NO AWARD HAS BEEN MADE, NOR HAVE THOSE OFFERORS WHOSE PROPOSALS WERE NOT TECHNICALLY ACCEPTABLE BEEN SO INFORMED. THUS, IT WOULD APPEAR THAT THE COMPLAINANT'S PROTEST IS UNTIMELY, AND THERE IS SOME DOUBT THAT HE LACKS ANY STANDING AT THIS TIME.

IN THIS REGARD, OUR BID PROTEST REGULATIONS PROVIDE AT 4 CFR 20.1:

AN INTERESTED PARTY WISHING TO PROTEST THE PROPOSED AWARD OF A CONTRACT, OR THE AWARD OF A CONTRACT, BY ANY AGENCY OF THE FEDERAL GOVERNMENT WHOSE ACCOUNTS ARE SUBJECT TO SETTLEMENT BY THE U.S. GENERAL ACCOUNTING OFFICE MAY DO SO BY ADDRESSING A TELEGRAM OR LETTER TO THE COMPTROLLER GENERAL OF THE UNITED STATES *** .

THE ABOVE REGULATION DOES NOT REQUIRE, AS A PREREQUISITE TO STANDING OR TIMELINESS, THAT AWARD BE MADE OR THAT AN OFFEROR BE INFORMED OF THE UNACCEPTABILITY OF HIS PROPOSAL.

WHILE WE HAVE REJECTED IN OUR DECISION OF TODAY TO ESC, ESC'S CONTENTIONS THAT THE STATEMENT OF WORK CONTAINED IN THE SOLICITATION IS VAGUE AND UNCLEAR, AND THAT THE SOLICITATION IS AMBIGUOUS AS TO WHETHER A NORMAL COST-REIMBURSEMENT CONTRACT WAS TO BE AWARDED THEREUNDER, WE BELIEVE THERE IS CERTAIN MERIT IN OTHER PORTIONS OF THE PROTEST.

AS INDICATED IN OUR DECISION, 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 IS 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. CF. B-167417(2), SEPTEMBER 12, 1969.

THE PROTESTANT'S CONTENTION, THAT THE RFP IS DEFICIENT IN THAT IT DOES NOT DISCLOSE THE CRITERIA FOR PROPOSAL EVALUATION AND THEIR RELATIVE IMPORTANCE, IS BASED UPON A SERIES OF DECISIONS BY OUR OFFICE IN WHICH WE HAVE STATED THAT SOUND PROCUREMENT POLICY DICTATES THAT OFFERORS BE INFORMED OF ALL EVALUATION FACTORS AND OF THE RELATIVE IMPORTANCE OR WEIGHT OF EACH FACTOR. 49 COMP. GEN. 229 (1969); 48 COMP. GEN. 314, 318 (1968); 47 COMP. GEN. 252, 262-263 (1967); 44 COMP. GEN. 439, 442 (1965); B-167867, JANUARY 20, 1970; B-167508, DECEMBER 8, 1969; B-167473, NOVEMBER 13, 1969; B-166213, JULY 18, 1969; B-166233, JUNE 17, 1969; B-166052, MAY 20, 1969. ESC PLACES PARTICULAR RELIANCE UPON OUR LETTER TO THE SECRETARY OF THE AIR FORCE, 49 COMP. GEN. 229, IN WHICH WE OBSERVED:

WHILE WE HAVE NEVER HELD, AND DO NOT NOW INTEND TO DO SO, THAT ANY MATHEMATICAL FORMULA IS REQUIRED TO BE USED IN THE EVALUATION PROCESS, WE BELIEVE THAT WHEN IT IS INTENDED THAT NUMERICAL RATINGS WILL BE EMPLOYED OFFERORS SHOULD BE INFORMED OF AT LEAST THE MAJOR FACTORS TO BE CONSIDERED AND THE BROAD SCHEME OF SCORING TO BE EMPLOYED. WHETHER OR NOT NUMERICAL RATINGS ARE TO BE USED, WE BELIEVE THAT NOTICE SHOULD BE GIVEN AS TO ANY MINIMUM STANDARDS WHICH WILL BE REQUIRED AS TO ANY PARTICULAR ELEMENT OF EVALUATION, AS WELL AS REASONABLY DEFINITE INFORMATION AS TO THE DEGREE OF IMPORTANCE TO BE ACCORDED TO PARTICULAR FACTORS IN RELATION TO EACH OTHER.

RFP NO. DOT-FR-00027 DID NOT INCLUDE THE EVALUATION CRITERIA OR AN INDICATION OF THEIR RELATIVE IMPORTANCE, AND IT MAY BE SIGNIFICANT THAT ONLY TWO OF THE 26 PROPOSALS RECEIVED WERE RATED AS ACCEPTABLE UNDER THE CRITERIA AND WEIGHTS USED BY THE EVALUATION PERSONNEL. HOWEVER, IT IS THE ADMINISTRATIVE POSITION THAT AMENDMENT OF THE SOLICITATION TO INCLUDE SUCH CRITERIA AND THEIR RELATIVE IMPORTANCE IS NOT WARRANTED FOR SEVERAL REASONS. IT IS ARGUED THAT THE ABOVE-QUOTED PORTION OF OUR DECISION 49 COMP. GEN. 229, IS MERELY "DICTA." IN AN ANALOGOUS SITUATION, WE ADVISED THE SECRETARY OF THE ARMY THAT AN ADMINISTRATIVE REPORT FURNISHED THIS OFFICE HAD INFORMED US:

*** THAT WHILE THE CORPS HAS FOLLOWED THE SPECIFIC "DECISIONS" IN THE ABOVE-CITED CASES (PRESUMABLY IN IDENTICAL FACTUAL SITUATIONS), THE VIEWS OF THIS OFFICE AS EXPRESSED IN OUR LETTER TO YOU AND TO THE SECRETARY OF THE NAVY CONCERNING THE UNDESIRABLE SITUATIONS EVIDENCED BY THOSE PROTESTS HAVE NOT BEEN FOLLOWED FOR THE REASON THAT SUCH LETTERS WERE CONSIDERED TO BE "DICTUM" ACCOMPANYING THE DECISIONS.

THE TERM "DICTUM" IS GENERALLY USED AS AN ABBREVIATION OF "OBITER DICTUM" WHICH MEANS A REMARK OR OPINION UTTERED BY THE WAY. 21 C.J.S. PAGE 311. WE FIND A DISTINCTION AS TO THE EFFECT (FOR ADMINISTRATIVE PURPOSES) BETWEEN THE ACTUAL DECISION TO A PROTESTING BIDDER IN A PARTICULAR CASE AND OUR LETTER TO THE HEAD OF THE AGENCY, CONCERNING AREAS IN THE AGENCY'S PROCUREMENT PRACTICES BROUGHT TO LIGHT BY THE PROTEST WHERE REVISIONS ARE CONSIDERED DESIRABLE, TO BE SOMEWHAT NOVEL. TO HAVE THE POSITIONS OF THIS OFFICE AS STATED IN SUCH LETTERS DISREGARDED BY A FEDERAL ORGANIZATION MERELY BY CATEGORIZING THEM AS DICTUM SEEMS PARTICULARLY FUTILE WHEN IT IS OBVIOUS THAT ADMINISTRATIVE ACTIONS TAKEN CONTRARY TO SUCH STATED POSITIONS MAY RESULT IN THE DISALLOWANCE OF CREDIT IN THE DISBURSING OFFICER'S ACCOUNTS. 47 COMP. GEN. 236, 249-250 (1967).

IT IS ALSO INDICATED IN THE ADMINISTRATIVE REPORT THAT THE FAILURE TO DISCLOSE EVALUATION CRITERIA AND THEIR RELATIVE IMPORTANCE MAY BE OBJECTIONABLE IN PROCUREMENTS BY THE MILITARY DEPARTMENTS AND YET UNOBJECTIONABLE IN CIVILIAN PROCUREMENTS, BECAUSE SUCH FAILURE VIOLATES A PROVISION OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WHICH HAS NO COUNTERPART IN THE FEDERAL PROCUREMENT REGULATIONS (FPR). IN THIS CONNECTION, IT SHOULD BE NOTED THAT OUR INITIAL DECISION ON THE DISCLOSURE OF EVALUATION FACTORS PRECEDED FORMALIZATION OF THE ARMED SERVICES REGULATIONS ON THE DISCLOSURE OF EVALUATION FACTORS, AND SUCH DECISIONS WERE, WE BELIEVE, INSTRUMENTAL TO PROMULGATION OF REGULATIONS ON THIS POINT. FURTHER, OUR SUBSEQUENT DECISIONS TO THE MILITARY DEPARTMENTS HAVE EMPHASIZED THE REQUIREMENT OF ASPR 3-501(A) THAT "SOLICITATIONS SHALL CONTAIN THE INFORMATION NECESSARY TO ENABLE A PROSPECTIVE OFFEROR OR QUOTER TO PREPARE A PROPOSAL OR QUOTATION PROPERLY." VIRTUALLY THE SAME LANGUAGE APPEARS AT FPR 1-3.802(C). OUR LETTER B-167054(2), JANUARY 14, 1970, TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, ILLUSTRATES THAT WE REGARD THE SAME POLICY OF INFORMING OFFERORS OF THE EVALUATION FACTORS AND THEIR RELATIVE WEIGHT AS APPLICABLE TO BOTH MILITARY AND CIVILIAN DEPARTMENTS.

IN FURTHER SUPPORT OF THE ADMINISTRATIVE POSITION THE ADMINISTRATOR CITED SEVERAL DECISIONS OF OUR OFFICE IN WHICH WE DID NOT DIRECT CONTRACT CANCELLATION OR RESOLICITATION, EVEN THOUGH THE SOLICITATIONS HAD NOT INCLUDED EVALUATION CRITERIA OR AN INDICATION OF THEIR RELATIVE IMPORTANCE. IN THIS CONNECTION, IT MAY BE GENERALLY STATED THAT OUR OFFICE DIRECTS CANCELLATION OF A CONTRACT ONLY IF THE CONTRACT IS CLEARLY CONTRARY TO THE PUBLIC INTEREST OR IN VIOLATION OF LAW. CONVERSELY, WE REGARD THE FAILURE TO INFORM OFFERORS OF THE CRITERIA FOR EVALUATION OF THEIR PROPOSALS AND THE RELATIVE IMPORTANCE OF SUCH CRITERIA AS NOT IN ACCORDANCE WITH SOUND PROCUREMENT POLICY AND THE PUBLIC INTEREST, EVEN THOUGH THERE MAY NOT BE A MANDATORY REQUIREMENT OF SUCH INFORMATION IN THE APPLICABLE REGULATION. WE HAVE NOT REGARDED SUCH FAILURES AS JUSTIFYING OUR INTERVENTION AS A STANDARD PROCEDURE WITHOUT CONSIDERATION OF THE PRACTICAL ASPECTS INVOLVED IN EACH INDIVIDUAL CASE.

THE INSTANT PROTEST WAS MADE BEFORE AWARD AND OUR OFFICE HAS NOT BEEN INFORMED OF ANY BASIS UPON WHICH TO CONCLUDE THAT THE DELAY INCIDENT TO THE OBSERVANCE OF PROPER PROCEDURES IN THIS PROCUREMENT WOULD IRREPARABLY INJURE OR AFFECT THE PUBLIC INTEREST. THEREFORE, WE BELIEVE THAT RFP NO. DOT-FR-00027 SHOULD BE AMENDED TO INFORM ALL OFFERORS OF THE EVALUATION CRITERIA APPLICABLE TO THEIR PROPOSALS AND OF THE RELATIVE IMPORTANCE OF THOSE CRITERIA; THAT OFFERORS SHOULD BE PERMITTED TO SUBMIT ADDITIONAL MATERIAL OR REVISED PROPOSALS IN LIGHT OF SUCH INFORMATION; THAT A DETERMINATION OF THE TECHNICAL COMPETITIVE RANGE THEREAFTER BE MADE; AND THAT CONSIDERATION THEN BE GIVEN TO CONDUCTING DISCUSSIONS WITH ALL OFFERORS WITHIN SUCH RANGE, TO THE EXTENT THAT SUCH DISCUSSIONS ARE REQUIRED BY THE FPR.

WITH REGARD TO THE "RELATIVE IMPORTANCE" OF THE CRITERIA, THE ADMINISTRATIVE REPORT INCLUDED A "PROPOSAL EVALUATION FORM" FOR THE INSTANT PROCUREMENT, WHICH DISCLOSED THE NUMERICAL WEIGHT ATTACHED TO EACH OF THE SEVEN EVALUATION CRITERIA. THIS FORM WAS FURNISHED THE PROTESTANT WITH THE PERMISSION OF YOUR DEPARTMENT. THUS, ONLY THE PROTESTANT OF ALL THE OFFERORS POSSESSES SUCH INFORMATION. IN VIEW OF THIS CIRCUMSTANCE, UNIQUE TO THE INSTANT CASE, IF THE SAME CRITERIA AND NUMERICAL WEIGHTS ARE APPLICABLE TO THE RESOLICITATION THE NUMERICAL WEIGHTS SHOULD BE PROVIDED ALL OFFERORS SO THEY MAY COMPETE ON AN EQUAL BASIS. HOWEVER, IF THE EVALUATION CRITERIA OR NUMERICAL WEIGHTS DIFFER UPON RESOLICITATION, WE BELIEVE THAT OFFERORS NEED BE PROVIDED ONLY A REASONABLE INDICATION OF THE RELATIVE IMPORTANCE OF EACH EVALUATION CRITERION.

THE FILE TRANSMITTED WITH THE LETTER OF MAY 22 IS RETURNED.