B-170650, DEC. 1, 1970

B-170650: Dec 1, 1970

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AWARD OF A CONTRACT MAY BE LIMITED TO THOSE FIRMS MEETING THE MORE EXACTING REQUIREMENTS OF A SPECIALIZED FIELD WITHOUT VALIDATING CHARGES THAT THE RFP IS RESTRICTIVE OF COMPETITION OR DISCRIMINATES AGAINST SMALL AND MINORITY BUSINESS. TO HAL KIRN ASSOCIATES: FURTHER REFERENCE IS MADE TO YOUR PROTEST UNDER REQUEST FOR PROPOSALS NO. 70-54. YOU CONTEND THAT THE RFP IS RESTRICTIVE OF COMPETITION. THE RFP WAS ISSUED ON JUNE 10. IT IS REPORTED THAT 149 COMPANIES REQUESTED COPIES OF THE RFP. 68 WERE SMALL BUSINESS CONCERNS. 42 WERE TO SMALL BUSINESS CONCERNS. THERE WERE 12 CONTRACTS AWARDED IN THE WASHINGTON. 11 OF THOSE WERE TO SMALL BUSINESSES. THE OFFICE OF EDUCATION ADVISES US THAT THE SPECIFICATIONS CONTAINED IN THE RFP WERE PREPARED OVER A PERIOD OF YEARS BY EXPERT FILM PRODUCERS REPRESENTING MANY GOVERNMENT AGENCIES.

B-170650, DEC. 1, 1970

BID PROTEST - BIDDER RESPONSIBILITY - RESTRICTIVE REQUIREMENTS DENIAL OF PROTEST OF HAL KIRN ASSOCIATES AGAINST THE RESTRICTIVE NATURE OF THE REQUEST FOR PROPOSALS ISSUED BY THE OFFICE OF EDUCATION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE FOR FURNISHING, ON A CALL BASIS, MOTION PICTURE PRODUCTION AND OTHER PHOTOGRAPHIC SERVICES. WHERE THE AUDIENCE SERVED BY THE PROCUREMENT CONSISTS OF DEAF, HARD OF- HEARING, AND OTHER PHYSICALLY HANDICAPPED PERSONS REQUIRING A HIGH QUALITY FILM PRODUCT, AWARD OF A CONTRACT MAY BE LIMITED TO THOSE FIRMS MEETING THE MORE EXACTING REQUIREMENTS OF A SPECIALIZED FIELD WITHOUT VALIDATING CHARGES THAT THE RFP IS RESTRICTIVE OF COMPETITION OR DISCRIMINATES AGAINST SMALL AND MINORITY BUSINESS.

TO HAL KIRN ASSOCIATES:

FURTHER REFERENCE IS MADE TO YOUR PROTEST UNDER REQUEST FOR PROPOSALS NO. 70-54, ISSUED BY THE OFFICE OF EDUCATION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, YOU CONTEND THAT THE RFP IS RESTRICTIVE OF COMPETITION, AND DISCRIMINATES AGAINST SMALL AND MINORITY BUSINESS. SPECIFICALLY, YOU OBJECT TO THE EVALUATION CRITERIA UNDER ITEMS 1, 3, AND 4.

THE RFP WAS ISSUED ON JUNE 10, 1970, PURSUANT TO THE AUTHORITY OF 41 U.S.C. 252(C)(15), AND PUBLIC LAW 89-258, 42 U.S.C. 2491, ET SEQ., AS AMENDED, FOR PROPOSALS ON FURNISHING, ON A CALL BASIS, MOTION PICTURE PRODUCTION AND OTHER PHOTOGRAPHIC SERVICES. THE RFP PROVIDED FOR MULTIPLE AWARDS ON A REGIONAL BASIS. IT IS REPORTED THAT 149 COMPANIES REQUESTED COPIES OF THE RFP, AND 77 COMPANIES SUBMITTED PROPOSALS. OF THE 77 COMPANIES THAT RESPONDED, 68 WERE SMALL BUSINESS CONCERNS. OF THE 51 CONTRACTS AWARDED, 42 WERE TO SMALL BUSINESS CONCERNS. THERE WERE 12 CONTRACTS AWARDED IN THE WASHINGTON, D.C. AREA, AND 11 OF THOSE WERE TO SMALL BUSINESSES.

THE OFFICE OF EDUCATION ADVISES US THAT THE SPECIFICATIONS CONTAINED IN THE RFP WERE PREPARED OVER A PERIOD OF YEARS BY EXPERT FILM PRODUCERS REPRESENTING MANY GOVERNMENT AGENCIES. THESE CONTRACTS WERE AWARDED PRIMARILY FOR THE USE OF THE DIVISION OF EDUCATIONAL SERVICES, MEDIA SERVICES AND CAPTIONED FILMS BRANCH, BUREAU OF EDUCATION FOR THE HANDICAPPED, PURSUANT TO THE AUTHORITY OF PUBLIC LAW 89-258, SUPRA. BECAUSE THE AUDIENCE TO BE SERVED BY THE PROCUREMENT CONSISTS OF DEAF, HARD-OF-HEARING, AND OTHER PHYSICALLY HANDICAPPED PERSONS, A HIGH QUALITY FILM PRODUCT IS REQUIRED.

FOR THIS REASON, THE RFP PROVIDED FOR EVALUATION OF AN OFFEROR'S QUALIFICATIONS IN ACCORDANCE WITH CERTAIN CRITERIA, INCLUDING THOSE SPECIFIED UNDER ITEMS 1, 3, AND 4. ITEM 1 RELATED TO THE NUMBER OF YEARS A COMPANY HAD BEEN IN THE BUSINESS, AND PROVIDED FOR ONE POINT FOR EACH YEAR UP TO 15 YEARS. ITEM 3, FOR A MAXIMUM OF 25 POINTS, PROVIDED FOR EVALUATION OF THE VARIETY OF SKILLS POSSESSED BY THE OFFEROR'S STAFF. ITEM 4 ALSO PROVIDED FOR A MAXIMUM OF 25 POINTS, BASED ON VARIOUS EQUIPMENT OWNED BY THE OFFEROR.

OUR OFFICE HAS HELD THAT THE AWARD OF A CONTRACT MAY BE LIMITED TO THOSE FIRMS MEETING SPECIFIED QUALITATIVE AND QUANTITATIVE EXPERIENCE REQUIREMENTS IN A SPECIALIZED FIELD WHERE THE EVALUATION CONDITIONS SO PROVIDE AND A DETERMINATION HAS BEEN MADE THAT THE INTERESTS OF THE GOVERNMENT WOULD BE SERVED THEREBY. SEE 37 COMP. GEN. 196 (1957). WHILE QUALIFICATION REQUIREMENTS MAY BE RESTRICTIVE OF COMPETITION, WE HAVE HELD THAT LEGITIMATE RESTRICTIONS ON COMPETITION ARE PROPER WHEN THERE IS NO REASONABLE ASSURANCE THAT THE NEEDS OF THE AGENCY WILL BE MET IN THE ABSENCE OF SUCH RESTRICTIONS. SEE 36 COMP. GEN. 809 (1957). WHETHER THE RESTRICTIONS IN THE SUBJECT RFP WERE ABSOLUTELY NECESSARY TO ASSURE PROPER CONTRACT PERFORMANCE CANNOT BE DETERMINED BY OUR OFFICE. SINCE THESE REQUIREMENTS RELATE DIRECTLY TO THE RESPONSIBILITY OF OFFERORS, THAT IS, WHETHER THEY CAN PERFORM IN A TIMELY AND EFFICIENT MANNER, AND SINCE THE PROCURING AGENCY IS IN THE BEST POSITION TO DETERMINE THE MEASURES REQUIRED TO ASSURE AWARD TO THOSE OFFERORS WHO CAN PERFORM MOST SATISFACTORILY, WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THEIRS. COURSE, ANY DECISION TO REJECT A PARTICULAR OFFEROR FOR FAILURE TO QUALIFY UNDER THESE SPECIFIED CRITERIA MUST BE SUPPORTED BY A DEFINITIVE DETERMINATION OF NONRESPONSIBILITY IN ACCORDANCE WITH APPLICABLE REGULATIONS, INCLUDING THOSE APPLICABLE TO SMALL BUSINESS CONCERNS. SEE B -168396, FEBRUARY 2, 1970; B-170890, NOVEMBER 18, 1970. IN ADDITION, WE BELIEVE IT SHOULD BE NOTED THAT IN VIEW OF THE COMPETITION GENERATED UNDER THE RFP IT DOES NOT APPEAR THAT THE QUALIFICATION REQUIREMENTS WERE UNDULY RESTRICTIVE.

ACCORDINGLY, YOUR PROTEST IS DENIED.