B-169773, OCT. 9, 1970

B-169773: Oct 9, 1970

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BID PROTEST - NEGOTIATION - COMPETITIVE RANGE DENIAL OF PROTEST AGAINST REJECTION OF PROPOSAL FOR COST REIMBURSEMENT TYPE CONTRACT FOR (AID) FOR DJAKARTA INTERNATIONAL AIRPORT STUDY ON BASIS THAT PROTESTANT WAS NOT WITHIN COMPETITIVE RANGE. ON BASIS OF RECORD DETERMINATION THAT LOW OFFEROR FOR COST REIMBURSEMENT TYPE CONTRACT WAS NOT WITHIN COMPETITIVE RANGE FOR FURTHER NEGOTIATION WAS NOT ABUSE OF ADMINISTRATIVE DISCRETION AND THEREFORE THERE WAS NO OBLIGATION TO NEGOTIATE FURTHER. TO ASIAPAC-FARGO INC.: THIS IS WITH REFERENCE TO YOUR LETTER OF MAY 14. NOTWITHSTANDING THAT ASIAPAC-FARGO HAD BEEN ADVISED BY AID THAT IT WAS NOT ELIGIBLE TO PARTICIPATE IN THE PROCUREMENT. IT WAS FURNISHED A COPY OF THE RFP ON THE BASIS OF ITS LETTER PRESENTATION OF MARCH 31.

B-169773, OCT. 9, 1970

BID PROTEST - NEGOTIATION - COMPETITIVE RANGE DENIAL OF PROTEST AGAINST REJECTION OF PROPOSAL FOR COST REIMBURSEMENT TYPE CONTRACT FOR (AID) FOR DJAKARTA INTERNATIONAL AIRPORT STUDY ON BASIS THAT PROTESTANT WAS NOT WITHIN COMPETITIVE RANGE. ON BASIS OF RECORD DETERMINATION THAT LOW OFFEROR FOR COST REIMBURSEMENT TYPE CONTRACT WAS NOT WITHIN COMPETITIVE RANGE FOR FURTHER NEGOTIATION WAS NOT ABUSE OF ADMINISTRATIVE DISCRETION AND THEREFORE THERE WAS NO OBLIGATION TO NEGOTIATE FURTHER.

TO ASIAPAC-FARGO INC.:

THIS IS WITH REFERENCE TO YOUR LETTER OF MAY 14, 1970, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT TO ANY FIRM OTHER THAN ASIAPAC-FARGO ON THE BASIS THAT YOUR PROPOSAL SUBMITTED TO THE AGENCY FOR INTERNATIONAL DEVELOPMENT (AID) FOR THE DJAKARTA INTERNATIONAL AIRPORT STUDY REPRESENTED THE BEST OFFER, PRICE AND TECHNICAL APPROACH CONSIDERED.

AID ISSUED A REQUEST FOR PROPOSALS DATED MARCH 23, 1970, TO THOSE FIRMS WHICH HAD BEEN PREVIOUSLY PREQUALIFIED FOR CONSIDERATION AS A RESULT OF RESPONSES RECEIVED FROM AN ANNOUNCEMENT IN THE COMMERCE BUSINESS DAILY OF JANUARY 14, 1970. NOTWITHSTANDING THAT ASIAPAC-FARGO HAD BEEN ADVISED BY AID THAT IT WAS NOT ELIGIBLE TO PARTICIPATE IN THE PROCUREMENT, IT WAS FURNISHED A COPY OF THE RFP ON THE BASIS OF ITS LETTER PRESENTATION OF MARCH 31, 1970.

ASIAPAC-FARGO SUBMITTED TIMELY TECHNICAL AND COST PROPOSALS ON APRIL 17, 1970, TO AID FOR ITS EVALUATION. WE ARE ADVISED THAT 12 OTHER PROPOSALS WERE RECEIVED BY AID BY THAT DATE, ALL OF WHICH PROPOSED TO UNDERTAKE THE STUDY UNDER A COST-REIMBURSABLE BASIS. EVALUATION CRITERIA WERE ESTABLISHED BY AID WHEREUNDER BASE POINTS TOTALING 200 WERE ASSIGNED TO NINE FACTORS OF TECHNICAL AND PERSONNEL REQUIREMENTS. AFTER AN ANALYSIS OF ASIAPAC-FARGO'S TECHNICAL PROPOSAL, IT WAS FOUND THAT ITS PROPOSAL WAS SERIOUSLY DEFICIENT IN THE EXPERIENCE DESIRED, PERSONNEL, AND METHODOLOGY (TECHNICAL UNDERSTANDING AND WORK PLAN). IN VIEW THEREOF, THE CONTRACTING OFFICER DETERMINED THAT THE PROPOSAL OF ASIAPAC-FARGO WAS NOT WITHIN A COMPETITIVE RANGE PRICE AND OTHER FACTORS CONSIDERED. HIS DETERMINATION READS AS FOLLOWS:

" *** THE FACTS SUMMARIZED BELOW INDICATE THAT THE PROPOSAL OF ASIA PAC FARGO, INC., WAS NOT WITHIN A 'COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED.'

"IN COST-REIMBURSEMENT-TYPE CONTRACTS, PRICE IS NOT CONTROLLING, AND 'THE PRIMARY CONSIDERATION IN DETERMINING TO WHOM THE AWARD SHALL BE MADE IS: WHICH CONTRACTOR CAN PERFORM THE CONTRACT IN A MANNER MOST ADVANTAGEOUS TO THE GOVERNMENT.' (FPR SEC 1-3.805-2). ON OTHER FACTORS, AS WELL AS ON PRICE, ASIA-PAC FARGO, INC., WAS JUDGED TO BE THE LOWEST.

--ASIA-PAC FARGO, INC., WAS RANKED BY EACH A.I.D. MEMBER OF THE SELECTION PANEL, AND BY THE REPRESENTATIVE OF THE GOVERNMENT OF INDONESIA, THIRTEENTH OUT OF THIRTEEN FIRMS WHICH SUBMITTED PROPOSALS, ON THE BASIS OF THEIR PROFESSIONAL QUALIFICATIONS TO DO THE STUDY.

--AN ANALYSIS OF THE TECHNICAL EVALUATION FORMS FOR ASIA-PAC FARGO, INC., INDICATES THAT THE FIRM WAS RANKED SIGNIFICANTLY LOWER IN ALL CATEGORIES OF PROFESSIONAL QUALIFICATIONS THAN ANY OF THE OTHER FIRMS EVALUATED. THUS, IN SUCH CATEGORIES AS RELEVANT EXPERIENCE ON OTHER JOBS, QUALITY OF THE IN-HOUSE STAFF, AND THE WORK PLAN PROPOSED, ASIA PAC FARGO, INC., WAS JUDGED TO BE LESS QUALIFIED FOR THE STUDY THAN THE OTHER FIRMS EVALUATED.

--IT IS ALSO SIGNIFICANT THAT ASIA-PAC FARGO'S OVERALL SCORE WAS ALMOST 10 POINTS LESS THAN THE NEXT RANKED FIRM, AND ITS SCORE WAS 27 POINTS LESS THAN THE THIRD RANKED FIRM (ON A MAXIMUM SCALE OF 200).

"DETERMINATION

"IN LIGHT OF THESE FACTORS, I CONCLUDE THAT ASIA-PAC FARGO, INC. IS NOT WITHIN A 'COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED,' *** ."

SINCE IT WAS DETERMINED THAT THE PROPOSAL OF ASIAPAC-FARGO WAS NOT WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED, NO REGULATORY REQUIREMENT EXISTED TO EXTEND NEGOTIATION OPPORTUNITY TO YOUR FIRM.

SECTION 1-3.805-1(A) OF THE FEDERAL PROCUREMENT REGULATIONS PROVIDES IN PERTINENT PART:

"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, *** ."

WE HAVE HELD THAT A PROPOSAL MUST BE CONSIDERED TO BE WITHIN A COMPETITIVE RANGE SO AS TO REQUIRE NEGOTIATION OPPORTUNITY UNLESS IT IS SO TECHNICALLY INFERIOR OR OUT OF LINE WITH REGARD TO PRICE THAT MEANINGFUL NEGOTIATIONS ARE PRECLUDED. ALSO, WE HAVE RECOGNIZED THAT THE DETERMINATION OF "COMPETITIVE RANGE," PARTICULARLY AS REGARDS TECHNICAL CONSIDERATIONS, 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. 48 COMP. GEN. 314, 317-318 (1968). FROM OUR REVIEW OF THE RECORD, WE CANNOT CONCLUDE THAT THE DETERMINATION MADE CONSTITUTED AN ABUSE OF DISCRETION.

SINCE WE CONCLUDE THAT THE PROCUREMENT AGENCY WAS NOT REQUIRED TO FAVORABLY CONSIDER YOUR RESPONSES TO THE RFP, WE WILL NOT CONSIDER THE OTHER MATTERS RAISED IN YOUR LETTER WHICH DO NOT AFFECT THE PROPRIETY OF THE ACTIONS TAKEN BY AID.

ACCORDINGLY, YOUR PROTEST IS DENIED.