B-169653(1), JUL. 29, 1970

B-169653(1): Jul 29, 1970

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

AFTER PREAWARD SURVEY WAS DETERMINED TO LACK UNDERSTANDING AS TO SCOPE OF SPECIFICATIONS. WHICH WAS ALSO THE CASE WITH SEVERAL OTHER FIRMS RESULTING IN CANCELLATION OF PORTION OF SOLICITATION. MUST HAVE PROTEST AGAINST ACTION DENIED SINCE SPECIFICATIONS WERE INADEQUATE AND DID NOT SET FORTH REQUIRED SERVICES. INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAMS OF APRIL 27 AND MAY 14. LOT II IS NOT INVOLVED IN YOUR PROTEST. FOURTEEN PROPOSALS WERE RECEIVED. THE RECORD INDICATES THAT THE LOW PROPOSAL WAS REJECTED BECAUSE A PREAWARD SURVEY REPORT DISCLOSED THAT THE OFFEROR LACKED. THE RECORD INDICATES THAT OTHER OFFERORS WERE ALSO CONTACTED AS TO THEIR UNDERSTANDING OF SPECIFICATIONS AND THAT IT WAS DISCOVERED THAT THESE OFFERORS HAD ALSO UNDERESTIMATED THE NUMBER OF MAN- HOURS NECESSARY FOR THE REQUIRED TAILBOOM REPAIR WORK.

B-169653(1), JUL. 29, 1970

BID PROTEST -- NEGOTIATION -- SPECIFICATION DEFICIENCY DECISION TO I.C.E.S., INC., DENYING PROTEST AGAINST CANCELLATION OF PORTION OF REQUEST FOR PROPOSALS FOR REPAIR OF HELICOPTER TAILBOOMS AND ASSEMBLIES FOR NAVAL AIR STATION. SECOND LOW OFFEROR WHO, AFTER PREAWARD SURVEY WAS DETERMINED TO LACK UNDERSTANDING AS TO SCOPE OF SPECIFICATIONS, WHICH WAS ALSO THE CASE WITH SEVERAL OTHER FIRMS RESULTING IN CANCELLATION OF PORTION OF SOLICITATION, MUST HAVE PROTEST AGAINST ACTION DENIED SINCE SPECIFICATIONS WERE INADEQUATE AND DID NOT SET FORTH REQUIRED SERVICES.

TO I.C.E.S., INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAMS OF APRIL 27 AND MAY 14, 1970, PROTESTING THE ACTION OF THE NAVAL AIR STATION, CORPUS CHRISTI, TEXAS, IN CANCELING LOT I OF DEPARTMENT OF THE NAVY REQUEST FOR PROPOSALS (RFP) NO. N00216-70-R-0079, AS AMENDED. LOT II IS NOT INVOLVED IN YOUR PROTEST.

THE RFP REQUESTED PROPOSALS UNDER LOT I FOR FURNISHING THE NECESSARY SERVICES AND MATERIALS FOR THE REPAIR OF UH-1 AND AH-1G HELICOPTER TAILBOOMS AND ASSEMBLIES. FOURTEEN PROPOSALS WERE RECEIVED, THE PRICES RANGING FROM A LOW OF $315,200 TO A HIGH OF $2,742,608. YOUR FIRM SUBMITTED THE SECOND LOWEST PROPOSAL. THE RECORD INDICATES THAT THE LOW PROPOSAL WAS REJECTED BECAUSE A PREAWARD SURVEY REPORT DISCLOSED THAT THE OFFEROR LACKED, AMONG OTHER THINGS, THE TECHNICAL CAPABILITY AND PRODUCTION CAPABILITY NECESSARY FOR MEETING THE REQUIRED DELIVERY SCHEDULE.

SINCE YOUR FIRM SUBMITTED THE NEXT LOWEST PROPOSAL ON LOT I, THE CONTRACTING OFFICER REQUESTED THAT A PREAWARD SURVEY BE MADE OF YOUR PLANT AND FACILITIES. THE NAVY REPORT INDICATES THAT THE NAVAL AIR SYSTEMS COMMAND PLANT REPRESENTATIVE AT BROWNSVILLE, TEXAS, CONDUCTED THE PREAWARD SURVEY AND THAT THIS SURVEY RESULTED IN FINDINGS THAT REPRESENTATIVES OF YOUR FIRM DID NOT UNDERSTAND THE SCOPE OF THE SPECIFICATIONS, EXHIBITS AND TECHNICAL DATA REQUIREMENTS AND THAT AS A RESULT OF A MISUNDERSTANDING OF THE SPECIFICATIONS, YOUR FIRM DID NOT ALLOW SUFFICIENT MAN-HOURS TO ACCOMPLISH THE TAILBOOM REPAIR WORK AS DEFINED BY TECHNICAL PERSONNEL OF THE ARMY AERONAUTICAL DEPOT MAINTENANCE CENTER (ARADMAC), THE REQUISITIONING ACTIVITY. THE RECORD INDICATES THAT OTHER OFFERORS WERE ALSO CONTACTED AS TO THEIR UNDERSTANDING OF SPECIFICATIONS AND THAT IT WAS DISCOVERED THAT THESE OFFERORS HAD ALSO UNDERESTIMATED THE NUMBER OF MAN- HOURS NECESSARY FOR THE REQUIRED TAILBOOM REPAIR WORK. THE PRE-AWARD SURVEY REPORT RECOMMENDED THAT NO AWARD ON LOT I BE MADE TO YOUR FIRM. THE SURVEY REPORT INDICATES THAT THE "NO AWARD" RECOMMENDATION WAS BASED ON THE CONCLUSION THAT THE BID PACKAGE DID NOT FURNISH SUFFICIENT TECHNICAL DATA FOR A SOUND BID BY YOUR FIRM AND THAT SUCH RECOMMENDATION WAS NOT BASED ON YOUR FIRM'S DEFICIENCIES OR CAPABILITIES.

IT IS REPORTED THAT SINCE IT APPEARS THAT, IN ADDITION TO YOUR FIRM, SEVERAL OTHER FIRMS DID NOT UNDERSTAND THE SPECIFICATIONS, THE CONTRACTING OFFICER DETERMINED THAT LOT I OF THE RFP PERTAINING TO THE REPAIR OF THE TAILBOOMS SHOULD BE CANCELED AND THAT THE TAILBOOM REPAIR WORK REQUIREMENTS SHOULD BE RETURNED TO THE REQUISITIONING ACTIVITY, ARADMAC, WITH A REQUEST THAT THE ACTIVITY OBTAIN A BETTER PURCHASE DESCRIPTION AND SPECIFICATIONS AS REQUIRED BY PARAGRAPH 2-404.1(B)(I) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). THE RECORD INDICATES THAT BY LETTER DATED MAY 22, 1970, THE CONTRACTING OFFICER ADVISED YOUR FIRM THAT LOT I OF THE SUBJECT SOLICITATION WAS NOT AWARDED TO ANY OFFEROR BECAUSE THE SOLICITATION CONTAINED A DEFECTIVE PURCHASE DESCRIPTION WHICH PREVENTED ADEQUATE PRICE COMPETITION, AND THAT THE REPAIR WORK COVERED BY LOT I WOULD BE READVERTISED AFTER RECEIPT OF THE REVISED SPECIFICATIONS FROM THE REQUISITIONING ACTIVITY. IT IS REPORTED THAT THE PURCHASE DESCRIPTION FOR THE WORK COVERED BY LOT I PROVED TO BE DEFECTIVE IN MANY WAYS, SOME OF WHICH WERE CONCERNED WITH A LACK OF INFORMATION REGARDING PRESHOP ANALYSIS, WORKBOOKS, USE OF JIGS AND FIXTURES, PAINTING, PRIMING, WHAT CONSTITUTES CRASH DAMAGE AND BATTLE DAMAGE, AND WHAT WOULD NOT BE CONSIDERED CRASH AND/OR BATTLE DAMAGE.

YOU CONTEND THAT LOT I OF THE SOLICITATION SHOULD NOT HAVE BEEN CANCELED; THAT THE PROPOSAL OF YOUR FIRM WAS VALID ON THE REFERENCED REQUEST FOR PROPOSALS AND THAT A CONTRACT BASED ON THAT PROPOSAL SHOULD BE NEGOTIATED WITH YOUR FIRM; AND THAT ANY INCREASE IN THE SCOPE OF THE WORK OR THE QUANTITIES SHOULD BE NEGOTIATED AS A MODIFICATION OF THE CONTRACT RESULTING FROM THE ORIGINAL RFP. YOU STATE THAT BY APPLYING YOUR FIRM'S QUOTED PRICES FOR THE WORK SCOPE CONTAINED IN THE ORIGINAL RFP FOR LOT I AND THAT BY NEGOTIATING AS "OVER AND ABOVE" THE ADDITIONAL WORK REQUIREMENTS USING THE WORK REQUEST AS A BASIS FOR NEGOTIATIONS, SUCH ACTION WOULD RESULT IN A BETTER CONTRACT FOR THE GOVERNMENT THAN A CONTRACT WHEREBY ALL WORK WOULD BE COVERED BY A SINGLE FIXED PRICE. YOU ALLEGE THAT THE NATURE OF THE WORK INVOLVED IS NOT CONDUCIVE TO A SINGLE FIXED PRICE WITH NO PROVISION FOR ADDITIONAL "OVER AND ABOVE" WORK. YOU POINT OUT THAT THE SUBJECT PROCUREMENT WAS PREVIOUSLY ADVERTISED UNDER AN INVITATION FOR BIDS WHICH WAS CANCELED BECAUSE OF A CHANGE IN THE SPECIFICATIONS. IN THIS CONNECTION, OUR RECORDS INDICATE THAT THE SUBJECT PROCUREMENT WAS PREVIOUSLY ADVERTISED UNDER NAVY INVITATION FOR BIDS NO. N00216-70-B-0052 AND THAT SUCH INVITATION WAS CANCELED BECAUSE THE SPECIFICATIONS WERE INADEQUATE FOR THE PROCUREMENT. BY DECISION B-169101 DATED APRIL 14, 1970, OUR OFFICE APPROVED THE ACTION OF THE PROCURING ACTIVITY IN CANCELING SUCH INVITATION.

PARAGRAPH 10(B) OF THE "SOLICITATION INSTRUCTIONS AND CONDITIONS" OF THE SOLICITATION PROVIDES THAT THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY AND ALL OFFERS. IN B-159291, AUGUST 2, 1966, WHICH ALSO INVOLVED A NEGOTIATED PROCUREMENT, IT WAS STATED AS FOLLOWS:

" *** THE AUTHORITY TO REJECT ALL BIDS (OFFERS) IS EXTREMELY BROAD, INVOLVING PRIMARILY A MATTER OF ADMINISTRATIVE JUDGMENT, AND WE WILL NOT UNDERTAKE TO QUESTION ITS EXERCISE HERE IN THE ABSENCE OF A CLEAR SHOWING OF ABUSE OF DISCRETION. *** "

THE ABOVE RULE WOULD BE EQUALLY APPLICABLE TO THIS CASE. IN THE PRESENT CASE IT IS UNCONTRADICTED THAT THE SPECIFICATIONS FOR LOT I DID NOT ADEQUATELY DESCRIBE THE REQUIRED SERVICES. THE RECORD INDICATES THAT THE RANGE OF THE OFFERS RECEIVED ON LOT I WAS VERY WIDE. THIS WIDE RANGE OF THE OFFERS RECEIVED APPEARS TO ESTABLISH THE FACT THAT THE SPECIFICATIONS DID NOT CLEARLY SET FORTH THE REQUIRED SERVICES. IN THESE CIRCUMSTANCES, AND IN VIEW OF THE BROAD DISCRETION VESTED IN ADMINISTRATIVE AGENCIES IN SUCH MATTERS, WE CANNOT CONCLUDE THAT THE REJECTION OF ALL OFFERS RECEIVED ON LOT I WAS ARBITRARY OR CAPRICIOUS.

FOR THE REASONS STATED, YOUR PROTEST IS DENIED.