B-169645(2), JUL. 24, 1970

B-169645(2): Jul 24, 1970

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FIVE OFFERORS WITH SCORES RANGING FROM 71.4 TO 74.8 WERE PRECLUDED FROM FURTHER NEGOTIATION THERE IS DOUBT THAT THE MAXIMUM PRACTICABLE COMPETITION WAS OBTAINED. A PRIMARY CONSIDERATION IN NEGOTIATED PROCUREMENTS IS DISCUSSIONS WITH ALL OFFERORS WITHIN COMPETITIVE RANGE AND BORDERLINE PROPOSALS SHOULD NOT BE AUTOMATICALLY EXCLUDED IF THEY ARE SUSCEPTIBLE TO BEING MADE ACCEPTABLE BY ADDITIONAL OR CLARIFYING INFORMATION. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTERS OF APRIL 24. YOU MAINTAIN THAT THE STATEMENT OF WORK CONTAINED IN THE SOLICITATION IS VAGUE AND UNCLEAR. THAT NEGOTIATIONS ARE NOT BEING CONDUCTED WITH ALL OFFERORS WITHIN A COMPETITIVE RANGE. THAT THE SOLICITATION IS AMBIGUOUS AS TO THE TYPE OF COST-REIMBURSEMENT CONTRACT TO BE AWARDED THEREUNDER.

B-169645(2), JUL. 24, 1970

BID PROTEST -- NEGOTIATION -- EVALUATION WEIGHTS DECISION TO ECONOMIC SCIENCES CORPORATION, INC., OFFEROR DETERMINED TO BE OUTSIDE COMPETITIVE RANGE, CONCERNING PROTEST AGAINST VAGUE AND UNCLEAR SOLICITATION BY FEDERAL RAILROAD ADMINISTRATION. WHERE UNDER AN EVALUATION SCHEME REQUIRING OFFERORS TO ATTAIN 75 POINTS TO BE CONSIDERED WITHIN COMPETITIVE RANGE, FIVE OFFERORS WITH SCORES RANGING FROM 71.4 TO 74.8 WERE PRECLUDED FROM FURTHER NEGOTIATION THERE IS DOUBT THAT THE MAXIMUM PRACTICABLE COMPETITION WAS OBTAINED. A PRIMARY CONSIDERATION IN NEGOTIATED PROCUREMENTS IS DISCUSSIONS WITH ALL OFFERORS WITHIN COMPETITIVE RANGE AND BORDERLINE PROPOSALS SHOULD NOT BE AUTOMATICALLY EXCLUDED IF THEY ARE SUSCEPTIBLE TO BEING MADE ACCEPTABLE BY ADDITIONAL OR CLARIFYING INFORMATION.

TO THE ECONOMIC SCIENCES CORPORATION, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF APRIL 24, 1970, AND JUNE 3, 1970, PROTESTING AGAINST AN AWARD TO ANY OTHER FIRM UNDER REQUEST FOR PROPOSALS (RFP) NO. DOT-FR-00027, ISSUED BY THE FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF TRANSPORTATION.

YOU MAINTAIN THAT THE STATEMENT OF WORK CONTAINED IN THE SOLICITATION IS VAGUE AND UNCLEAR, THAT NEGOTIATIONS ARE NOT BEING CONDUCTED WITH ALL OFFERORS WITHIN A COMPETITIVE RANGE, THAT THE SOLICITATION IS AMBIGUOUS AS TO THE TYPE OF COST-REIMBURSEMENT CONTRACT TO BE AWARDED THEREUNDER, AND THAT THE SOLICITATION IS DEFICIENT IN THAT IT DOES NOT DISCLOSE THE CRITERIA FOR PROPOSAL EVALUATION AND THEIR RELATIVE IMPORTANCE.

THE INSTANT RFP WAS ISSUED ON DECEMBER 24, 1969, TO FULFILL A REQUIREMENT OF THE OFFICE OF HIGH SPEED GROUND TRANSPORTATION FOR STATISTICAL ANALYTICAL SUPPORT REQUIRED TO MEASURE THE NATURE AND MAGNITUDE OF PUBLIC RESPONSE TO RAIL DEMONSTRATIONS IN THE NORTHEAST CORRIDOR. ENCLOSURE A TO THE SOLICITATION, "BACKGROUND INFORMATION AND GENERAL REQUIREMENTS," STATED THAT:

"THE OBJECTIVE OF THE DEMONSTRATIONS DIVISION (OF THE OFFICE OF HIGH SPEED GROUND TRANSPORTATION) IS TO DETERMINE THE CONTRIBUTIONS THAT HIGH- SPEED GROUND TRANSPORTATION COULD MAKE TO MORE EFFICIENT AND ECONOMICAL INTERCITY TRANSPORTATION SYSTEMS AND TO MEASURE, EVALUATE AND PROJECT PUBLIC RESPONSE TO NEW EQUIPMENT, HIGHER SPEEDS, VARIATIONS IN FARES, IMPROVED COMFORT AND CONVENIENCE, AND MORE FREQUENT SERVICE. THE DIVISION IS AUTHORIZED TO COLLECT DATA AND CONDUCT SURVEYS AND STATISTICAL ANALYSES WHICH WILL CONTRIBUTE TO THE ACCOMPLISHMENT OF THIS OBJECTIVE."

ENCLOSURE

"THE STATISTICAL ANALYTICAL TASKS TO BE PERFORMED BY THE CONTRACTOR IN SUPPORT OF THE ACCOMPLISHMENT OF THE DEMONSTRATIONS DIVISION'S OBJECTIVES SHALL INCLUDE BUT NOT BE LIMITED TO THE FOLLOWING:

"1. CONDUCT A COMPREHENSIVE BUT EXPEDITIOUS REVIEW OF THE NATURE, UTILITY AND LIMITATIONS OF EACH OF THE DATA SETS.

"2. INTEGRATE THE STATISTICS FROM THE MULTIPLE SOURCES INTO A COORDINATED DATA BASE. IDENTIFY, QUANTIFY AND RECONCILE OR ADJUST FOR DIFFERENCES AMONG THE DATA SETS.

"3. DEVELOP MATHEMATICAL AND STATISTICAL TECHNIQUES TO ANALYZE THE DATA IN ORDER TO MEASURE THE NATURE AND MAGNITUDE OF PUBLIC RESPONSE TO THE DEMONSTRATIONS. DESIGN AND IMPLEMENT THE APPROPRIATE STATISTICAL ANALYTICAL PROGRAMS AND INVESTIGATIONS. THESE PROGRAMS WILL MAXIMIZE THE CAPABILITIES OF COMPUTERS FOR INFORMATION RETRIEVAL AND ANALYSES OF THE DATA AND THEIR COMPLEX INTERRELATIONSHIPS.

"4. STRATIFY, AGGREGATE AND ARRAY THE RELEVANT DATA IN TABULAR AND CHART FORMAT FOR EVALUATION AND INTERPRETATION BY THE DEMONSTRATIONS DIVISION. THE MATERIAL WILL DEPICT THE IMPACT OF THE DEMONSTRATIONS ON THE NORTHEAST CORRIDOR TRAVEL MARKET; I.E., THE RELATIONSHIP BETWEEN THE CHANGES IN TRANSPORTATION MODE ALTERNATIVES AND THE CHANGES IN TRAVEL VOLUME, MODEL SPLIT, TRAVELLER SOCIO-ECONOMIC CHARACTERISTICS AND TRAVEL PATTERN CHARACTERISTICS.

"5. SELECT AND APPLY APPROPRIATE STATISTICAL TESTS AND TECHNIQUES TO CALCULATE NUMERICAL ESTIMATES OF SAMPLING VARIABILITY, CONFIDENCE LIMITS AND STATISTICAL SIGNIFICANCE THAT MAY BE ATTACHED TO THE QUANTITIVE DATA ANALYSES AND SURVEY RESULTS.

"6. DESIGN AND EXECUTE A STATISTICAL PROGRAM (1) TO PROJECT THE RESULTS OF FURTHER IMPROVEMENTS IN NORTHEAST CORRIDOR RAIL SERVICE AND (2) TO PROJECT THE RESULTS OF THE NORTHEAST CORRIDOR DEMONSTRATIONS TO OTHER PARTS OF THE COUNTRY. THIS TASK MAY INCLUDE THE CONDUCT OF A MARKOV-TYPE CHAIN PROCESS ANALYSIS OF MODE SWITCHING BEHAVIOR COMPARABLE TO THE BRAND SWITCHING ANALYSES CONDUCTED BY CONSUMER PRODUCTS AND SERVICES COMPANIES FOR PROJECTING EXPECTED VOLUME.

"7. PREPARE PERIODIC REPORTS AND SUMMARIES OF THE STATISTICAL ANALYSES OF THE CONTINUING DATA COLLECTION PROGRAMS AND SURVEYS OF DEMONSTRATION RESULTS. THESE REPORTS AND SUMMARY TABULATIONS WILL BE PREPARED MONTHLY PRIMARILY FOR INTERNAL (DEPARTMENT OF TRANSPORTATION) REVIEW AND QUARTERLY FOR BROAD PUBLIC DISTRIBUTION. THE SECTIONS OF THESE REPORTS INVOLVING INTERPRETATION AND EVALUATION OF THE DATA AND CONCLUSIONS AND RECOMMENDATIONS WILL BE PREPARED BY (OR IN CLOSE COORDINATION WITH) THE DEMONSTRATIONS DIVISION." THE SOLICITATION ALSO PROVIDED:

"THE GOVERNMENT CONSIDERS THE MAGNITUDE OF THE EFFORT TO BE PERFORMED UNDER THE CONTRACT TO BE APPROXIMATELY 34 TO 38 MAN MONTHS OF PROFESSIONAL EFFORT. THIS FIGURE IS FOR THE OFFEROR'S GUIDANCE ONLY AND SHOULD NOT BE CONSIDERED AS FIXED FOR PROPOSAL PURPOSES. THE OFFEROR SHOULD QUOTE ON THE BASIS OF THE EFFORT REQUIRED TO ACCOMPLISH THE PROJECT REQUIREMENTS."

YOU CONTEND THAT THE OBJECTIVES OF THE DEMONSTRATIONS DIVISION ARE STATED IN VERY BROAD TERMS WHICH PROVIDE LITTLE GUIDANCE FOR OFFERORS. FURTHER, YOU MAINTAIN THAT THE STATEMENT OF WORK IS INDEFINITE IN THAT IT INFORMS OFFERORS THAT THE WORK "SHALL INCLUDE BUT NOT BE LIMITED TO" SEVEN TASKS IN SUPPORT OF THESE OBJECTIVES. IN CONTRAST, YOU NOTE THAT "THE RFP CONTAINS A RATHER PRECISE ESTIMATE THAT THE EFFORT WILL ENTAIL 34 TO 38 MAN MONTHS OF PROFESSIONAL EFFORT." YOUR ARGUMENT IMPLIES THAT THE PROCURING ACTIVITY POSSESSED DETAILED INFORMATION ON THE WORK TO BE PERFORMED WHICH IT CHOSE NOT TO DISCLOSE TO OFFERORS.

IN RESPONSE TO YOUR ARGUMENTS, THE PROCURING AGENCY OBSERVED THAT BECAUSE OF THE EXPERIMENTAL NATURE OF THE CONTRACT, THE WORK STATEMENT WAS NECESSARILY GENERAL AND IMPRECISE. IT IS ALSO ADMINISTRATIVELY REPORTED:

"EACH PROPOSAL WAS EVALUATED ONLY ON ITS PROPOSED PERFORMANCE OF THE 7 ENUMERATED TASKS. NO CONSIDERATION WAS GIVEN IN THE EVALUATION PROCESS TO DIFFERENT OR ADDITIONAL TASKS WHICH WERE CONTAINED IN ANY PROPOSAL. THE PHRASE IN THE RFP THAT THE WORK 'SHALL INCLUDE BUT NOT BE LIMITED TO' THE 7 ENUMERATED TASKS WAS INCLUDED IN RECOGNITION OF THE FACT THAT EVERY STEP AND PROCEDURE CANNOT ALWAYS BE KNOWN WITH TOTAL PRECISION AT THE OUTSET OF A PROJECT OF THIS NATURE. ON OCCASION, AS WORK PROGRESSES, PROBLEMS AND REQUIREMENTS ARE ENCOUNTERED WHICH REQUIRE A DIFFERENT ANALYTICAL PROCEDURE THAN ORIGINALLY ANTICIPATED."

IT IS ALSO THE ADMINISTRATIVE POSITION THAT THE STATEMENT IN THE RFP THAT THE PERFORMANCE PERIOD WOULD BE 34 TO 38 MAN MONTHS IS ONLY AN ESTIMATE PROVIDED TO AID OFFERORS IN COMPUTING THEIR COSTS, AND IS NOT A WORK REQUIREMENT OF THE CONTRACT. WE BELIEVE THIS IS AN ACCURATE DESCRIPTION OF THE SOLICITATION PROVISION, AND THAT UNDER THE CIRCUMSTANCES THE WORK STATEMENT PROVIDED A REASONABLE DESCRIPTION OF THE TASKS INVOLVED.

YOU HAVE ALSO CONTENDED THAT DISCUSSIONS WERE NOT CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMITTED PROPOSALS WITHIN A COMPETITIVE RANGE, IN VIOLATION OF FEDERAL PROCUREMENT REGULATIONS (FPR) 1-3.805-1 (A). THIS CONNECTION, THE RECORD INDICATES THAT 25 OFFERORS SUBMITTED SEPARATE PRICE AND TECHNICAL PROPOSALS. EACH MEMBER OF A FIVE-MAN BOARD EVALUATED THE TECHNICAL PROPOSALS AGAINST SEVEN CRITERIA, RANGING IN WEIGHT FROM 5 TO 30 POINTS, THE SUM OF WHICH WAS 100 POINTS. THE SCORES ASSIGNED EACH PROPOSAL BY THESE INDIVIDUALS WAS THEN AVERAGED, AND PROPOSALS WHICH RECEIVED AN AVERAGE SCORE OF 75 OR ABOVE WERE CONSIDERED TECHNICALLY ACCEPTABLE AND APPEAR TO HAVE BEEN ELIGIBLE FOR FURTHER NEGOTIATIONS. NEGOTIATIONS WERE NOT CONDUCTED WITH THOSE FIRMS, SUCH AS YOURS, RECEIVING AN AVERAGE SCORE BELOW 75 POINTS. THE MINIMUM SCORE OF 75 POINTS FOR AN ACCEPTABLE PROPOSAL WAS BASED ON THE ADMINISTRATION'S EXPERIENCE IN THE EVALUATION OF PRIOR TECHNICAL PROPOSALS, AND TWO OFFERORS EXCEEDED THE MINIMUM SCORE. IT IS REPORTED THAT SINCE IT WAS ANTICIPATED THAT THE PROPOSED CONTRACT WOULD BE A COST-REIMBURSEMENT TYPE CONTRACT, THE EVALUATION OF OFFERS WAS BASED ON THE POLICY STATED IN FPR 1-3.805-2 (APPARENTLY AS TO THE MOST ADVANTAGEOUS MANNER OF PERFORMANCE). IT IS FURTHER REPORTED THAT INASMUCH AS YOUR PROPOSAL WAS NOT TECHNICALLY ACCEPTABLE, IT WAS NOT WITHIN A "COMPETITIVE RANGE" AND, THEREFORE, YOU WERE NOT ENTITLED TO A NEGOTIATION OPPORTUNITY. WHILE WE CANNOT CONCLUDE THAT YOU WERE ENTITLED TO A NEGOTIATION OPPORTUNITY, BY LETTER OF TODAY TO THE SECRETARY OF TRANSPORTATION, COPY ENCLOSED, WE HAVE QUESTIONED THE BASIS USED FOR DETERMINING WHETHER PROPOSALS WERE WITHIN A COMPETITIVE RANGE.

YOU FURTHER MAINTAIN THAT THE SOLICITATION IS AMBIGUOUS AS TO WHETHER THIS IS A NORMAL COST-REIMBURSEMENT CONTRACT OR A COST CONTRACT WITH A FIRM CEILING PRICE. PAGE ONE OF THE RFP CONTAINED THE GENERAL STATEMENT THAT THE "GOVERNMENT CONSIDERS A COST-TYPE CONTRACT APPROPRIATE FOR THIS AWARD." ENCLOSURE B TO THE SOLICITATION, "SAMPLE CONTRACT WITH GENERAL PROVISIONS," PROVIDED IN ARTICLE IV FOR CONSIDERATION AND PAYMENT UNDER THE CAPTION "COST-PLUS-A-FIXED-FEE" (CPFF). ALTHOUGH IT WAS STATED THEREIN THAT THE CONTRACTOR WOULD BE REIMBURSED "IN AN AMOUNT NOT TO EXCEED," ARTICLE VIII (GENERAL PROVISIONS) ALSO INCORPORATED BY REFERENCE A "LIMITATION OF COST (CPFF)" CLAUSE. IT IS REPORTED THAT THE SAMPLE CONTRACT AND GENERAL PROVISIONS WERE INTENDED TO INDICATE THE TYPE OF TERMS THAT WOULD BE INCLUDED IN THE CONTRACT, SUBJECT TO NEGOTIATION WITH THE SUCCESSFUL OFFEROR. WE BELIEVE THE RFP ADEQUATELY DEMONSTRATED THAT A NORMAL COST REIMBURSEMENT CONTRACT WAS CONTEMPLATED, AND THERE IS NO INDICATION IN THE RECORD THAT THE LANGUAGE TO WHICH YOU REFER OPERATED TO YOUR DETRIMENT.

ALTHOUGH THE APPROPRIATE TIME FOR YOU TO HAVE QUESTIONED THE ADEQUACY OF THE RFP WAS PRIOR TO THE SUBMISSION OF YOUR PROPOSAL, WE RECOGNIZE THE MERIT TO YOUR ARGUMENT THAT THE SOLICITATION IS MATERIALLY DEFICIENT IN THAT IT DOES NOT DISCLOSE THE CRITERIA FOR PROPOSAL EVALUATION AND THE RELATIVE IMPORTANCE OF SUCH CRITERIA. ACCORDINGLY, BY OUR LETTER OF TODAY WE ARE ADVISING THE SECRETARY OF TRANSPORTATION, THAT THE SOLICITATION SHOULD BE AMENDED TO INFORM OFFERORS OF THE SPECIFIC EVALUATION CRITERIA AND THE RELATIVE IMPORTANCE OR WEIGHTS ASSIGNED TO THOSE CRITERIA, AND THAT OFFERORS BE PERMITTED TO SUBMIT ADDITIONAL MATERIAL OR REVISED PROPOSALS IN LIGHT OF SUCH INFORMATION.