B-170154(2), MAR 30, 1971

B-170154(2): Mar 30, 1971

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THE CONTRACTING OFFICER WAS NOT OBLIGED TO CONDUCT DISCUSSIONS. FOR THE OFFER WAS NOT AMBIGUOUS OR INDEFINITE. THE PROTEST IS THEREFORE DENIED. TO HOLLANDER ASSOCIATES: REFERENCE IS MADE TO YOUR LETTERS DATED JULY 14 AND 27. THE AIR FORCE REJECTED YOUR PROPOSAL STATING THAT IT WAS UNACCEPTABLE "BECAUSE OF THE INCORPORATION OF PROPRIETARY PROGRAMS WITH THE MODEL AND THE STRONG IMPLICATION OF ADDITIONAL COSTS RESULTING THEREOF.". THIS CONCLUSION WAS SET FORTH BY THE AIR FORCE TECHNICAL EVALUATION PANEL IN ITS REPORT DATED JUNE 12. THIS REJECTION OF HOLLANDER'S PROPOSAL IS BASED UPON THE DATA RIGHTS CLAUSE SET FORTH ON PAGE 4 OF THE COST AND ADMINISTRATIVE INFORMATION SECTION OF THE HOLLANDER OFFER.

B-170154(2), MAR 30, 1971

BID PROTEST - EXCEPTIONS - RIGHTS TO DATA DECISION DENYING PROTEST AGAINST REJECTION OF PROPOSAL UNDER AN RFP ISSUED BY THE AEROSPACE MEDICAL DIVISION, BROOKS AFB, TEXAS, FOR DEVELOPMENT OF COMPUTER-BASED METHODS OF SIMULATING THE REDISTRIBUTION OF AIR FORCE ENLISTED PERSONNEL WITH AN OCCUPATIONAL AREA. PROTESTANT'S PROPOSAL TAKES UNEQUIVOCAL AND DELIBERATE EXCEPTION TO A SIGNIFICANT PROVISION OF THE RFP BY SEEKING TO RESERVE THE RIGHT TO NEGOTIATE FOR TECHNICAL DATA AFTER AWARD IN SPITE OF THE PROVISIONS OF THE RIGHTS IN THE TECHNICAL DATA CLAUSE OF THE RFP. FURTHER, THE CONTRACTING OFFICER WAS NOT OBLIGED TO CONDUCT DISCUSSIONS, FOR THE OFFER WAS NOT AMBIGUOUS OR INDEFINITE. THE PROTEST IS THEREFORE DENIED.

TO HOLLANDER ASSOCIATES:

REFERENCE IS MADE TO YOUR LETTERS DATED JULY 14 AND 27, SEPTEMBER 24, AND NOVEMBER 30, 1970, WITH ENCLOSURES, PROTESTING AGAINST THE CONTEMPLATED AWARD OF A CONTRACT TO ANOTHER OFFEROR UNDER REQUEST FOR PROPOSALS (RFP) NO. F41609-70-R-0047 ISSUED BY THE AEROSPACE MEDICAL DIVISION (AFSC), BROOKS AIR FORCE BASE, TEXAS.

THE SUBJECT SOLICITATION, ISSUED APRIL 20, 1970, COVERS THE DEVELOPMENT OF COMPUTER-BASED METHODS OF SIMULATING THE REDISTRIBUTION OF AIR FORCE ENLISTED PERSONNEL WITHIN AN OCCUPATIONAL AREA. THE RECORD INDICATES THAT HOLLANDER ASSOCIATES SUBMITTED A TIMELY PROPOSAL PRIOR TO THE MAY 20, 1970, DUE DATE FOR RECEIPT OF PROPOSALS. BY LETTER DATED JULY 10, 1970, THE AIR FORCE REJECTED YOUR PROPOSAL STATING THAT IT WAS UNACCEPTABLE "BECAUSE OF THE INCORPORATION OF PROPRIETARY PROGRAMS WITH THE MODEL AND THE STRONG IMPLICATION OF ADDITIONAL COSTS RESULTING THEREOF." THIS CONCLUSION WAS SET FORTH BY THE AIR FORCE TECHNICAL EVALUATION PANEL IN ITS REPORT DATED JUNE 12, 1970.

THIS REJECTION OF HOLLANDER'S PROPOSAL IS BASED UPON THE DATA RIGHTS CLAUSE SET FORTH ON PAGE 4 OF THE COST AND ADMINISTRATIVE INFORMATION SECTION OF THE HOLLANDER OFFER. IT PROVIDED AS FOLLOWS:

"DATA CLAUSE. THE RESEARCH TO BE CONDUCTED UNDER THIS STUDY WILL BENEFIT FROM EXTENSIVE PROPRIETARY RESEARCH CONDUCTED BY THE STAFF OF HOLLANDER ASSOCIATES IN THE FIELD OF SYSTEM EVALUATION AND OPTIMIZATION. OUR PROPRIETARY METHODOLOGY IS STILL IN A DEVELOPMENTAL STAGE, AND WE DO NOT WISH TO PUBLISH IT UNTIL THE RESULTS HAVE BEEN FULLY VALIDATED. THEREFORE, IT SHALL BE UNDERSTOOD THAT OUR PROPRIETARY METHODOLOGY IS NOT PART OF THIS PROCUREMENT AND THAT THE DATA CLAUSE DOES NOT APPLY TO IT.

"HOLLANDER ASSOCIATES WILL DELIVER ALL THE RESULTS OBTAINED DURING THIS STUDY. HOWEVER, WHEN OUR PROPRIETARY TECHNOLOGY IS USED AS A TOOL, IT SHALL NOT BE PART OF THIS PROCUREMENT UNLESS ESSENTIAL TO DEMONSTRATE OUR CONCLUSIONS.

"WHERE IT BECOMES NECESSARY PER THE ABOVE PARAGRAPH TO DISCLOSE PROPRIETARY INFORMATION, HOLLANDER ASSOCIATES SHALL BE PLEASED TO NEGOTIATE LIMITED DISCLOSURE OF SUCH INFORMATION IN APPROPRIATE REPORTS WITH LIMITED CIRCULATION. WE CONFIDENTLY EXPECT THAT MOST OF THE RESULTS FROM THIS STUDY WILL BE ENTIRELY UNLIMITED."

HOLLANDER ASSOCIATES ALLEGES THAT ANY DOUBT OR MISUNDERSTANDING CAUSED BY THE ABOVE CLAUSE WAS NOT GROUNDS FOR THE CONTRACTING OFFICER'S REJECTION OF THEIR PROPOSAL. IN THIS REGARD, THE CONTRACTING OFFICER STATES IN HIS STATEMENT OF FACTS AND FINDINGS INCLUDED IN THE ADMINISTRATIVE REPORT AS FOLLOWS:

"B. THE GENERAL PROVISIONS OF THE REQUEST FOR PROPOSAL CONTAINED (BY REFERENCE) ASPR 7-104.9(A) - RIGHTS IN TECHNICAL DATA. THE HOLLANDER ASSOCIATE PROPOSAL COVERAGE OF DATA IS SUCH THAT IT OBVIOUSLY REPRESENTS AN ALTERNATE PROPOSAL TO THE GOVERNMENT'S REQUIREMENT IN THIS AREA. WHILE HOLLANDER ASSOCIATES IS POSSIBLY CORRECT IN ITS STATEMENT THAT THIS SITUATION COULD HAVE BEEN RESOLVED DURING NEGOTIATION, THE CONTRACTING OFFICER IS UNDER NO OBLIGATION TO NEGOTIATE WITH A SOURCE WHICH HAS SUBMITTED SUCH AN ALTERNATE PROPOSAL. THIS IS ESPECIALLY TRUE WHEN A SUBSTANTIAL NUMBER OF OTHER SOURCES HAVE NOT FOUND IT NECESSARY TO MAKE A SIMILAR QUALIFICATION OF THEIR PROPOSAL, AND FULL COMPETITION CAN BE FOUND WITHOUT NEGOTIATING THE QUALIFIED PROPOSAL INTO AN ACCEPTABLE STATE.

"6. IN SUMMARY, THE HOLLANDER ASSOCIATES PROPOSAL IDENTIFIES A REQUIREMENT FOR SPECIAL RIGHTS IN DATA COVERAGE. IT FURTHER PROVIDES AN OFFER TO NEGOTIATE LIMITED RIGHTS FOR THE GOVERNMENT, ALTHOUGH THE GOVERNMENT DESIRES UNLIMITED RIGHTS. THE PROTEST ALLEGES THAT ALL DIFFERENCES COULD HAVE BEEN RESOLVED IF THE QUESTIONS HAD BEEN SUBMITTED TO NEGOTIATION. WHETHER OR NOT THIS IS TRUE, THE CIRCUMSTANCES DID NOT REQUIRE AN EFFORT ON THE PART OF THE GOVERNMENT TO NEGOTIATE."

SECTION 2304(G) OF 10 U.S.C. PROVIDES, IN PART, AS FOLLOWS:

"IN ALL NEGOTIATED PROCUREMENTS IN EXCESS OF $2,500 IN WHICH RATES OR PRICES ARE NOT FIXED BY LAW OR REGULATION AND IN WHICH TIME OF DELIVERY WILL PERMIT, PROPOSALS, INCLUDING PRICE, SHALL BE SOLICITED FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES CONSISTENT WITH THE NATURE AND REQUIREMENTS OF THE SUPPLIES OR SERVICES TO BE PROCURED, AND WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE, AND OTHER FACTORS CONSIDERED: *** "

PART 8 OF PARAGRAPH III, ASPR, "PRICE NEGOTIATION POLICIES AND TECHNIQUES," SPELLS OUT THE ABOVE REQUIREMENTS IN GREATER DETAIL. UNDER THE STATUTE AND REGULATIONS, NO REQUIREMENT EXISTS FOR THE GOVERNMENT TO CONDUCT DISCUSSIONS WITH AN OFFEROR WHOSE PROPOSAL IS NOT "WITHIN A COMPETITIVE RANGE."

IN THE INSTANT CASE, WE BELIEVE THE AIR FORCE'S EXCLUSION OF THE HOLLANDER PROPOSAL FROM FURTHER DISCUSSIONS WAS REASONABLE. YOUR PROPOSAL TAKES UNEQUIVOCAL AND DELIBERATE EXCEPTION TO A SIGNIFICANT PROVISION OF THE RFP AND SOUGHT TO RESERVE THE RIGHT TO NEGOTIATE FOR TECHNICAL DATA AFTER AWARD IN SPITE OF THE PROVISIONS OF THE RIGHTS IN TECHNICAL DATA CLAUSE. UNDER THE CIRCUMSTANCES, WE DO NOT BELIEVE THAT THE CONTRACTING OFFICER WAS OBLIGED TO CONDUCT DISCUSSIONS WITH HOLLANDER TO DETERMINE IF IT WOULD ALTER ITS POSITION. THIS IS NOT A CASE WHERE THE OFFER WAS AMBIGUOUS OR INDEFINITE, MAKING CLARIFICATION DESIRABLE; RATHER IN THIS CASE THE OFFEROR HAS TAKEN DELIBERATE AND DEFINITE EXCEPTION TO A MATERIAL PROVISION OF THE RFP. IN VIEW OF THE FACT THAT ADEQUATE COMPETITION UNDER THIS PROCUREMENT OTHERWISE EXISTS, WE BELIEVE THE CONTRACTING OFFICER'S EXCLUSION OF THE HOLLANDER PROPOSAL FROM FURTHER DISCUSSIONS WAS NOT UNREASONABLE.

ACCORDINGLY, FOR THE REASONS STATED, YOUR PROTEST IS DENIED.