B-169671(1), AUG 31, 1970

B-169671(1): Aug 31, 1970

Additional Materials:

Contact:

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

 

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

ADMINISTRATIVE DETERMINATION THAT OFFEROR HAD SUBMITTED A TECHNICALLY DEFICIENT OFFER SO THAT FIRM WAS NOT WITHIN COMPETITIVE RANGE FOR FURTHER NEGOTIATION IS UPHELD ON THE BASIS OF THE RECORD. THE FIRST REFERENCED SOLICITATION WAS FOR A FIXED PRICE CONTRACT FOR 3 TH -57A HELICOPTER SYSTEMS DISPLAY PANEL TRAINING AIDS. THE SECOND REFERENCED PROCUREMENT WAS FOR A FIXED PRICE CONTRACT FOR A TH-57A HELICOPTER FLIGHT CONTROL AND SYSTEMS TRAINER. THE FIRST SOLICITATION WAS ISSUED TO 22 FIRMS. THE COST PROPOSALS OF THE 4 FIRMS WHOSE PROPOSALS WERE RECEIVED BY DECEMBER 1. WERE AS FOLLOWS: PROGRESS INDUSTRIES $51. 792 THE TECHNICAL PROPOSALS WHICH WERE EVALUATED IN ACCORDANCE WITH A PREVIOUSLY ESTABLISHED EVALUATION PLAN.

B-169671(1), AUG 31, 1970

BID PROTEST -- BIDDER CAPABILITY DENIAL OF PROTEST AGAINST REJECTION OF PROPOSAL FOR FURNISHING HELICOPTER SYSTEMS TRAINING AIDS FOR NAVAL TRAINING DEVICE CENTER. ADMINISTRATIVE DETERMINATION THAT OFFEROR HAD SUBMITTED A TECHNICALLY DEFICIENT OFFER SO THAT FIRM WAS NOT WITHIN COMPETITIVE RANGE FOR FURTHER NEGOTIATION IS UPHELD ON THE BASIS OF THE RECORD.

TO FISHERMEN'S BOAT SHOP, INC.:

WE REFER TO YOUR TWO LETTERS OF APRIL 20, 1970, PROTESTING AGAINST THE AWARD OF CONTRACTS TO OTHER FIRMS UNDER REQUEST FOR PROPOSALS (RFP) NO. N61339-70-R-0077 AND N61339-70-R-0061, ISSUED ON OCTOBER 17 AND 20, 1969, RESPECTIVELY, BY THE NAVAL TRAINING DEVICE CENTER, ORLANDO, FLORIDA.

THE FIRST REFERENCED SOLICITATION WAS FOR A FIXED PRICE CONTRACT FOR 3 TH -57A HELICOPTER SYSTEMS DISPLAY PANEL TRAINING AIDS, DEVICES 2A33/1 3, TO INCLUDE RELATED TECHNICAL DATA AND INFORMATION, INTERIM REPAIR PARTS AND CONTRACTOR-CONDUCTED, ON-SITE TRAINING PROGRAMS. THE SECOND REFERENCED PROCUREMENT WAS FOR A FIXED PRICE CONTRACT FOR A TH-57A HELICOPTER FLIGHT CONTROL AND SYSTEMS TRAINER, DEVICE 2A35, TO INCLUDE TECHNICAL DATA AND INFORMATION, A CONTRACTOR-CONDUCTED ON-SITE TRAINING COURSE FOR THE TRAINER AND INTERIM REPAIR PARTS. BOTH SOLICITATIONS REQUESTED SEPARATE TECHNICAL AND COST PROPOSALS.

THE FIRST SOLICITATION WAS ISSUED TO 22 FIRMS. THE COST PROPOSALS OF THE 4 FIRMS WHOSE PROPOSALS WERE RECEIVED BY DECEMBER 1, 1969, THE CLOSING DATE SET FOR RECEIPT OF PROPOSALS, WERE AS FOLLOWS:

PROGRESS INDUSTRIES $51,500

FISHERMEN'S BOAT SHOP, INC. 51,740

BURTEK, INC. 69,861

DISPLAY SALES, INC. 93,792

THE TECHNICAL PROPOSALS WHICH WERE EVALUATED IN ACCORDANCE WITH A PREVIOUSLY ESTABLISHED EVALUATION PLAN, WERE ASSIGNED THE FOLLOWING TECHNICAL RATINGS BY THE PROJECT ENGINEER:

TECHNICAL IMPL. OVERALL

APPROACH PLAN ILS SCORE BURTEK, INC. 83 100 96 93.0 DISPLAY SALES, INC. 72 89 80 83.33 FISHERMEN'S BOAT SHOP, INC. 46 41 64 50.33 PROGRESS INDUSTRIES, INC. 14 0 20 10.0

NEGOTIATIONS WITH BURTEK, INC., CONSIDERED THE LOWEST ACCEPTABLE OFFEROR, BY THE PROCURING ACTIVITY, WERE CONDUCTED DURING THE WEEK OF MARCH 2, 1970. ON MARCH 2, 1970, CONTRACT NO. N61339-70-C-0191 WAS AWARDED TO BURTEK, INC., IN THE AMOUNT OF $64,700.

THE SECOND SOLICITATION WAS ISSUED TO 11 FIRMS AND THE COST PROPOSALS OF THE 3 FIRMS WHOSE PROPOSALS WERE RECEIVED BY NOVEMBER 26, 1969, THE CLOSING DATE SET FOR RECEIPT OF PROPOSALS, WERE AS FOLLOWS:

FISHERMEN'S BOAT SHOP, INC. $ 93,000

HYDROSYSTEMS, INC. 116,429

BURTEK, INC. 146,551

THE TECHNICAL PROPOSALS EVALUATED IN ACCORDANCE WITH A PREVIOUSLY ESTABLISHED EVALUATION PLAN WERE ASSIGNED THE FOLLOWING TECHNICAL RATINGS BY THE PROJECT ENGINEER:

TECHNICAL IMPL. OVERALL

APPROACH PLAN ILS SCORE HYDROSYSTEMS, INC. 91 9490 91.66 BURTEK, INC. 90 91 93 91.33 FISHERMEN'S BOAT SHOP, INC. 37 51 44 44.00

NEGOTIATIONS WITH HYDROSYSTEMS, INC., CONSIDERED THE LOWEST ACCEPTABLE OFFEROR BY THE PROCURING ACTIVITY, WERE CONDUCTED DURING THE PERIOD MARCH 6-13, 1970. ON MARCH 26, 1970, CONTRACT NO. N61339-70-C 0176 WAS AWARDED TO HYDROSYSTEMS, INC., IN THE AMOUNT OF $115,280.

YOUR PRIMARY COMPLAINT CONCERNS THE FAILURE OF THE CONTRACTING OFFICER TO CONDUCT NEGOTIATIONS WITH YOUR FIRM ON EITHER OF THE SOLICITATIONS. YOU EMPHASIZE THAT DURING CONFERENCES WITH THE CONTRACTING OFFICER AT YOUR PLANT ON JANUARY 6 AND 7, 1970, YOU WERE INFORMED THAT YOUR PROPOSALS WERE RESPONSIVE AND WERE BEING EVALUATED. YOU CLAIM YOU WERE THEN DENIED ANY OTHER INFORMATION UNTIL MARCH 30, 1970, WHEN YOU RECEIVED NOTICE OF AWARDS TO THE OTHER FIRMS AT HIGHER PRICES THAN YOU HAD PROPOSED, AND YOU CONTEND THAT THE CONTRACTING OFFICER AWARDED THE CONTRACTS TO THESE FIRMS WITHOUT SERIOUS CONSIDERATION OF YOUR PROPOSAL. YOU CLAIM THIS SAME CONTRACTING OFFICER DELIBERATELY CAUSED EXCESSIVE COST OVERRUNS AND THEN DEFAULTED YOUR FIRM ON APRIL 4, 1970, ON CONTRACT NO. N61339-69-C-0211, WITHOUT DESCRIBING ANY ACTS OR OMISSIONS ON YOUR PART, WITHOUT REQUESTING A SHOW CAUSE LETTER AND WITHOUT ALLOWING YOUR FIRM SUFFICIENT TIME TO CORRECT ALLEGED DEFICIENCIES, IN ORDER TO JUSTIFY THE AWARD OF THESE NEW CONTRACTS TO BURTEK AND HYDROSYSTEMS.

BOTH 10 U.S.C. 2304(G) AND PARAGRAPH 3-805.1(A) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) GENERALLY REQUIRE DISCUSSIONS WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED. WE HAVE HELD THAT THE TERM "OTHER FACTORS" INCLUDES THE TECHNICAL ACCEPTABILITY OF PROPOSALS, 46 COMP. GEN. 606 (1967), AND WE HAVE ALSO HELD THAT A DETERMINATION OF WHAT CONSTITUTES A "COMPETITIVE RANGE", PARTICULARLY WITH RESPECT TO THE EVALUATION OF TECHNICAL PROPOSALS, IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION WHICH WILL NOT BE DISTURBED BY THIS OFFICE IN THE ABSENCE OF A CLEAR SHOWING THAT SUCH DETERMINATION WAS AN ARBITRARY EXERCISE OF DISCRETION. SEE 48 COMP. GEN. 314, 317-318 (1968); B 164313, JULY 5, 1968.

THE RECORD SHOWS THAT IN THE FIRST SOLICITATION YOUR TECHNICAL RATING OF 50.33 DID NOT COMPARE FAVORABLY WITH THE SCORES OF 83 AND 93 OF THE HIGHER RATED PROPOSALS. SIMILARLY, ON THE SECOND SOLICITATION YOUR TECHNICAL RATING OF 44.00 DID NOT COMPARE FAVORABLY WITH THE SCORE OF 91 GIVEN EACH OF THE OTHER PROPOSALS RECEIVED. UNDER THESE CIRCUMSTANCES, WE SEE NO JUSTIFIABLE BASIS FOR DISAGREEING WITH THE DETERMINATION OF THE PROCURING ACTIVITY THAT YOUR PROPOSALS WERE SO TECHNICALLY DEFICIENT AS TO MAKE THEM UNACCEPTABLE; HENCE, WE ARE UNABLE TO CONCLUDE THAT YOUR TECHNICAL PROPOSAL WAS WITHIN A COMPETITIVE RANGE SO AS TO REQUIRE DISCUSSION PURSUANT TO ASPR 3 805.1(A).

IN REGARD TO YOUR CONTENTION THAT THE CONTRACTING OFFICER TERMINATED YOUR CONTRACT NO. N61339-69-6-0211 FOR DEFAULT WITHOUT ADEQUATE CAUSE, YOU HAVE PRESENTED NO EVIDENCE TO SHOW ANY DELIBERATE ACTION OF THAT NATURE ON THE CONTRACTING OFFICER'S PART IN REGARD TO THAT CONTRACT, NOR DOES THE RECORD INDICATE ANY ACTION OF THAT NATURE.

FOR THE ABOVE REASONS, YOUR PROTEST MUST BE DENIED.