B-172324, AUG 11, 1971

B-172324: Aug 11, 1971

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ADVISE THAT WHEN TWO PROPOSALS ARE OF EQUAL TECHNICAL EXCELLENCE PRICE SHOULD BE THE DETERMINING FACTOR IN MAKING AN AWARD AND THAT WHENEVER THERE IS A MATERIAL DEPARTURE IN THE SOLICITATION BEFORE AWARD. PERTINENT PORTIONS OF THE REPORT WERE MADE AVAILABLE TO AMPEX FOR COMMENT AND BY LETTER DATED MAY 26. THAT ALL OFFERS WERE IMPARTIALLY EVALUATED DURING THE COURSE OF NEGOTIATIONS AND THAT THE EVALUATION CRITERIA WERE CONSISTENTLY APPLIED. WE BELIEVE THAT SOME COMMENT ON THE EVALUATION CRITERIA USED IN DETERMINING WHICH OFFER WAS MOST ADVANTAGEOUS TO THE GOVERNMENT IS APPROPRIATE. ALTHOUGH THE CONTRACTING OFFICER WAS LEGITIMATELY CONCERNED WITH THE TECHNICAL ABILITY OF THE OFFERORS TO CONFIGURE THE EQUIPMENT IN THE VANS AND THEIR SELECTION OF COMPONENTS.

B-172324, AUG 11, 1971

CONTRACTS - TECHNICAL REQUIREMENT - CHANGE IN SOLICITATION CONCERNING PROTEST, SUBSEQUENTLY WITHDRAWN, OF AMPEX CORPORATION AGAINST AWARD OF CONTRACT BY UNITED STATES MARINE CORPS TO RADIO CORPORATION OF AMERICA FOR TWO MOBILE TV PRODUCTION VANS. ADVISE THAT WHEN TWO PROPOSALS ARE OF EQUAL TECHNICAL EXCELLENCE PRICE SHOULD BE THE DETERMINING FACTOR IN MAKING AN AWARD AND THAT WHENEVER THERE IS A MATERIAL DEPARTURE IN THE SOLICITATION BEFORE AWARD, ALL OFFERORS WITHIN COMPETITIVE RANGE MUST BE AFFORDED EQUAL OPPORTUNITY TO RESPOND TO THE CHANGES.

TO GENERAL CHAPMAN:

BY LETTER DATED MAY 11, 1971, WITH ENCLOSURES, THE QUARTERMASTER GENERAL FURNISHED OUR OFFICE AN ADMINISTRATIVE REPORT ON THE PROTEST OF THE AMPEX CORPORATION AGAINST THE AWARD OF A CONTRACT TO THE RADIO CORPORATION OF AMERICA UNDER MARINE CORPS REQUEST FOR PROPOSALS M00027 71-R-0019.

PERTINENT PORTIONS OF THE REPORT WERE MADE AVAILABLE TO AMPEX FOR COMMENT AND BY LETTER DATED MAY 26, 1971, IT WITHDREW ITS PROTEST. FROM OUR REVIEW OF THE RECORD, WE MUST CONCLUDE, AS AMPEX DID, THAT ALL OFFERS WERE IMPARTIALLY EVALUATED DURING THE COURSE OF NEGOTIATIONS AND THAT THE EVALUATION CRITERIA WERE CONSISTENTLY APPLIED. HOWEVER, UNDER THE CIRCUMSTANCES OF THIS CASE, WE BELIEVE THAT SOME COMMENT ON THE EVALUATION CRITERIA USED IN DETERMINING WHICH OFFER WAS MOST ADVANTAGEOUS TO THE GOVERNMENT IS APPROPRIATE.

THE SOLICITATION AS ISSUED ACCORDED TECHNICAL COMPETENCE A WEIGHT OF 75 PERCENT AND COST A WEIGHT OF 25 PERCENT. THE TWO MOBILE TV PRODUCTION VANS SOLICITED ON A FIXED-PRICE BASIS REQUIRED ESSENTIALLY OFF-THE-SHELF EQUIPMENT, ALTHOUGH THE CONTRACTING OFFICER WAS LEGITIMATELY CONCERNED WITH THE TECHNICAL ABILITY OF THE OFFERORS TO CONFIGURE THE EQUIPMENT IN THE VANS AND THEIR SELECTION OF COMPONENTS. NEVERTHELESS, WE WERE INFORMALLY ADVISED BY THE CONTRACTING OFFICER THAT AFTER TECHNICAL EVALUATION, THE PROPOSALS OF RCA AND AMPEX WERE CONSIDERED TO BE ESSENTIALLY EQUAL TECHNICALLY. THIS ADVICE WOULD APPEAR TO BE BORNE OUT BY THE TECHNICAL SCORES RECEIVED. OUT OF A POSSIBLE TECHNICAL SCORE OF 75 POINTS, RCA RECEIVED THE MAXIMUM AND AMPEX RECEIVED 74.1. IF, AS IS APPARENTLY THE SITUATION HERE, IT CAN BE SAID THAT THERE IS, IN THE JUDGMENT OF THE CONTRACTING AGENCY, NO SUBSTANTIAL BASIS FOR DISTINGUISHING BETWEEN THE TECHNICAL EXCELLENCE OF TWO PROPOSALS MEETING THE GOVERNMENT'S REQUIREMENTS, WE BELIEVE THAT PRICE SHOULD THEN BECOME THE CONTROLLING FACTOR. CF. 50 COMP. GEN. (B-169148, OCTOBER 6, 1970). ON THE OTHER HAND, IF THE TECHNICAL DIFFERENCE BETWEEN A HIGHER RATED PROPOSAL AND A LOWER RATED AND LOWER PRICED PROPOSAL IS OF SOME SIGNIFICANCE, A SPECIFIC DETERMINATION SHOULD BE MADE THAT THE TECHNICAL SUPERIORITY OF THE HIGHER PRICED PROPOSAL WARRANTS THE ADDITIONAL COST INVOLVED IN THE AWARD OF A CONTRACT TO THAT OFFEROR.

FINALLY, WE MUST REJECT THE QUARTERMASTER GENERAL'S SUGGESTION ARGUENDO THAT AFTER THE CLOSING DATE FOR NEGOTIATIONS AND BEFORE AWARD "MATERIAL" CHANGES IN THE SOLICITATION COULD BE DISCUSSED WITH AND AGREED TO BY RCA TO THE EXCLUSION OF ALL OTHER OFFERORS BECAUSE RCA WAS THE "OTHERWISE SUCCESSFUL OFFEROR" AFTER BEST AND FINAL OFFERS. IN OUR OPINION, WHERE THERE IS A MATERIAL DEPARTURE FROM THE SOLICITATION PRIOR TO AWARD, ALL OFFERORS WITHIN A COMPETITIVE RANGE SHOULD BE AFFORDED AN EQUITABLE OPPORTUNITY TO RESPOND TO THE CHANGES.