B-172395, JUL 7, 1971

B-172395: Jul 7, 1971

Additional Materials:

Contact:

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

 

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

SUCH AN AWARD WILL NOT BE UPSET EXCEPT UPON A SHOWING THAT IT WAS ARBITRARILY MADE. ROBERT PIERCE: REFERENCE IS MADE TO LETTER OF JUNE 21. SINCE NO AWARD HAS BEEN MADE AND A NEGOTIATED PROCUREMENT IS INVOLVED. OUR OFFICE IS RESTRICTED IN ITS RECITATION OF THE FACTS. NEGOTIATION OF THIS PROCUREMENT WAS AUTHORIZED UNDER 10 U.S.C. 2304(A)(11). THE PROCUREMENT WAS A 100-PERCENT SET-ASIDE FOR SMALL BUSINESS CONCERNS. ELEVEN PROPOSALS WERE RECEIVED AND EVALUATED BY A TECHNICAL TEAM. IT IS REPORTED THAT ONLY FIVE OF THE PROPOSALS. WERE FOUND TO BE TECHNICALLY ACCEPTABLE. NEGOTIATIONS WERE SUBSEQUENTLY CARRIED ON WITH THE FIVE SUCCESSFUL FIRMS AND THE FINAL REVISED PROPOSALS WERE AGAIN RATED FROM A TECHNICAL ASPECT BUT THE RELATIVE STANDING OF EACH FIRM REMAINED UNCHANGED.

B-172395, JUL 7, 1971

BID PROTEST - NEGOTIATIONS - BASIS FOR AWARD DENYING PROTEST OF ANALYSIS & COMPUTER SYSTEMS, INC., AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER A RFQ ISSUED BY THE ELECTRONIC SYSTEMS DIVISION, HANSCOM FIELD, BEDFORD, MASS. FOR COMPUTER PROGRAMMING TASKS TO SUPPORT AIRCRAFT MOCK-UP AND REMOTE STATION DEVELOPMENT ACTIVITIES. A NEGOTIATED CONTRACT NEED NOT BE AWARDED SOLELY ON THE BASIS OF PRICE. SUCH AN AWARD WILL NOT BE UPSET EXCEPT UPON A SHOWING THAT IT WAS ARBITRARILY MADE.

TO MR. ROBERT PIERCE:

REFERENCE IS MADE TO LETTER OF JUNE 21, 1971, FROM ANALYSIS & COMPUTER SYSTEMS, INC. (ACSI), AND PRIOR CORRESPONDENCE FROM YOU AND ACSI, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER REQUEST FOR QUOTATIONS (RFQ) NO. F19628-71-Q-0177, ISSUED BY THE ELECTRONIC SYSTEMS DIVISION (PPR), LAURENCE G. HANSCOM FIELD, BEDFORD, MASSACHUSETTS.

SINCE NO AWARD HAS BEEN MADE AND A NEGOTIATED PROCUREMENT IS INVOLVED, OUR OFFICE IS RESTRICTED IN ITS RECITATION OF THE FACTS. PARAGRAPH 3- 507.2 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). 49 COMP. GEN. 98 (1969).

THE SUBJECT RFQ, ISSUED ON DECEMBER 9, 1970, SOLICITED TECHNICAL PROPOSALS ON A COST-PLUS-FIXED-FEE (CPFF) BASIS FOR COMPUTER PROGRAMMING TASKS TO SUPPORT AIRCRAFT MOCKUP AND REMOTE STATION DEVELOPMENT ACTIVITIES WITHIN THE POSITION LOCATION, REPORTING, AND CONTROL OF TACTICAL AIRCRAFT (PLRACTA) ADVANCED DEVELOPMENT PROGRAM. NEGOTIATION OF THIS PROCUREMENT WAS AUTHORIZED UNDER 10 U.S.C. 2304(A)(11), AS IMPLEMENTED BY ASPR 3-211 WHICH AUTHORIZES NEGOTIATION OF CONTRACTS THAT THE HEAD OF THE AGENCY DETERMINES TO BE FOR EXPERIMENTAL, DEVELOPMENTAL OR RESEARCH WORK, OR FOR MAKING OR FURNISHING PROPERTY FOR EXPERIMENT, TEST, DEVELOPMENT OR RESEARCH. THE PROCUREMENT WAS A 100-PERCENT SET-ASIDE FOR SMALL BUSINESS CONCERNS.

SECTION D2 OF THE RFQ SETS FORTH THE BASIS FOR AWARD OF CONTRACT AS FOLLOWS:

"2. BASIS FOR AWARD OF CONTRACT (COST REIMBURSEMENT CONTRACTS). DETERMINING TO WHOM THE CONTRACT RESULTING FROM THIS SOLICITATION SHALL BE AWARDED, THE LOWEST PROPOSED COST, THE LOWEST PROPOSED FEE, OR THE PROPOSED LOWEST TOTAL ESTIMATED COST, PLUS PROPOSED FEE OR PROPOSED LOWEST TOTAL PRICE SHALL NOT BE CONTROLLING. THE CONTRACTING OFFICER SHALL CONSIDER ALL OTHER PERTINENT FACTORS INCLUDING TECHNICAL COMPETENCE, MANAGEMENT CAPABILITIES, COST CONTROLS INCLUDING THE NATURE AND EFFECTIVENESS OF ANY COST REDUCTION PROGRAM (SEE ASPR 3-101(VIII)) AND PAST PERFORMANCE IN ADHERING TO CONTRACT REQUIREMENTS WEIGHING EACH FACTOR IN ACCORDANCE WITH THE REQUIREMENTS OF THIS PROCUREMENT (SEE ASPR 1-903). THE CONTRACT SHALL BE AWARDED TO THAT CONTRACTOR WHICH THE CONTRACTING OFFICER DEEMS CAN PERFORM THE CONTRACT IN A MANNER MOST ADVANTAGEOUS TO THE GOVERNMENT." ELEVEN PROPOSALS WERE RECEIVED AND EVALUATED BY A TECHNICAL TEAM. IT IS REPORTED THAT ONLY FIVE OF THE PROPOSALS, INCLUDING THAT OF ACSI, WERE FOUND TO BE TECHNICALLY ACCEPTABLE. NEGOTIATIONS WERE SUBSEQUENTLY CARRIED ON WITH THE FIVE SUCCESSFUL FIRMS AND THE FINAL REVISED PROPOSALS WERE AGAIN RATED FROM A TECHNICAL ASPECT BUT THE RELATIVE STANDING OF EACH FIRM REMAINED UNCHANGED. BASED ON EXTENSIVE DISCUSSIONS WITH MEMBERS OF THE EVALUATION TEAM, THE CONTRACTING OFFICER CONCLUDED THAT AWARD SHOULD BE MADE TO THE FIRM RECEIVING THE HIGHEST TECHNICAL RATING NOTWITHSTANDING THE FACT THAT ITS ESTIMATED COST (CPFF) WAS 10 PERCENT HIGHER THAN THE LOWEST OF THE FIVE FIRMS.

THE PRIME BASIS OF YOUR PROTEST IS BASED ON YOUR CONTENTION THAT YOU WERE NOT GIVEN ADEQUATE AND FAIR OPPORTUNITY TO SUBMIT PERTINENT DATA DURING COMPETITIVE RANGE NEGOTIATIONS HELD IN THIS PROCUREMENT. IN THIS VEIN, YOU CONTEND THAT THE INFORMATION PROVIDED BY ACSI DURING NEGOTIATIONS DID NOT CHANGE THE TECHNICAL RATING GIVEN BY THE EVALUATION TEAM. WITH RESPECT TO THIS CONTENTION, FACTORS TO BE CONSIDERED IN THE EVALUATION AND AWARD OF RESEARCH AND DEVELOPMENT CONTRACTS ARE STATED IN ASPR 4-106.4 WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"4-106.4 EVALUATION FOR AWARD.

"(A) GENERALLY, RESEARCH AND DEVELOPMENT CONTRACTS SHOULD BE AWARDED TO THOSE ORGANIZATIONS, INCLUDING EDUCATIONAL ORGANIZATIONS, WHICH HAVE THE HIGHEST COMPETENCE IN THE SPECIFIC FIELD OF SCIENCE OR TECHNOLOGY INVOLVED. HOWEVER, AWARDS SHOULD NOT BE MADE FOR RESEARCH OR DEVELOPMENT CAPABILITIES THAT EXCEED THOSE NEEDED FOR THE SUCCESSFUL PERFORMANCE OF THE WORK.

"(B) BEFORE DETERMINING THE TECHNICAL COMPETENCE OF PROSPECTIVE CONTRACTORS, AND RECOMMENDING TO THE CONTRACTING OFFICER THE CONCERN OR CONCERNS THAT THEY CONSIDER MOST TECHNICALLY COMPETENT, COGNIZANT TECHNICAL PERSONNEL SHALL CONSIDER THE FOLLOWING:

(I) THE CONTRACTOR'S UNDERSTANDING OF THE SCOPE OF THE WORK AS SHOWN BY THE SCIENTIFIC OR TECHNICAL APPROACH PROPOSED;

(II) AVAILABILITY AND COMPETENCE OF EXPERIENCED ENGINEERING, SCIENTIFIC, OR OTHER TECHNICAL PERSONNEL;

(III) AVAILABILITY, FROM ANY SOURCE, OF NECESSARY RESEARCH, TEST, AND PRODUCTION FACILITIES;

(IV) EXPERIENCE OR PERTINENT NOVEL IDEAS IN THE SPECIFIC BRANCH OF SCIENCE OR TECHNOLOGY INVOLVED; AND

(V) THE CONTRACTOR'S WILLINGNESS TO DEVOTE HIS RESOURCES TO THE PROPOSED WORK WITH APPROPRIATE DILIGENCE.

"(C) IN DETERMINING TO WHOM THE CONTRACT SHALL BE AWARDED, THE CONTRACTING OFFICER SHALL CONSIDER NOT ONLY TECHNICAL COMPETENCE, BUT ALSO ALL OTHER PERTINENT FACTORS INCLUDING MANAGEMENT CAPABILITIES, COST CONTROLS, AND PAST PERFORMANCE IN ADHERING TO CONTRACT REQUIREMENTS, WEIGHING EACH FACTOR IN ACCORDANCE WITH THE REQUIREMENTS OF THE PARTICULAR PROCUREMENT (SEE 1-903). THE CONTRACTING OFFICERS SHALL NOTIFY THOSE SOURCES WHOSE PROPOSALS OR OFFERS HAVE BEEN DETERMINED TO BE UNACCEPTABLE OF THAT DECISION IN ACCORDANCE WITH 3 508."

WE ALSO NOTE THAT ASPR 4-106.5 PROVIDES IN PART THAT WHILE PRICE SHOULD NOT BE DISREGARDED IN THE SELECTION OF A CONTRACTOR, NEITHER SHOULD IT BE THE CONTROLLING FACTOR IN SELECTING A CONTRACTOR FOR RESEARCH AND DEVELOPMENT.

WE HAVE REVIEWED THE RECORD SUBMITTED HERE CONCERNING THE NEGOTIATIONS CONDUCTED IN THIS PROCUREMENT AND WE FIND NO EVIDENCE OF IMPROPRIETY REGARDING THE NEGOTIATIONS CONDUCTED WITH ACSI. IN FACT, CONTRARY TO ACSI'S CONTENTION, ITS SCORE WAS RAISED BY THE EVALUATION TEAM AFTER NEGOTIATIONS AND ITS PROPOSAL WAS CONSIDERED TECHNICALLY ACCEPTABLE BUT THE FACT REMAINS THAT ANOTHER FIRM'S WAS CONSIDERED MORE TECHNICALLY ACCEPTABLE. GENERALLY, WE HAVE RECOGNIZED IN SIMILAR CASES THAT THE FINAL SELECTION OF A CONTRACTOR UNDER NEGOTIATING PROCEDURES IS LARGELY A MATTER OF JUDGMENT AND, IN THE ABSENCE OF A CLEAR SHOWING THAT A DETERMINATION REGARDING TECHNICAL MERIT OF A PROPOSAL WAS AN ARBITRARY ABUSE OF DISCRETION OR MADE IN BAD FAITH, OUR OFFICE DOES NOT QUESTION A DEPARTMENT'S DECISION TO RATE ONE PROPOSAL OVER ANOTHER BASED ON A TECHNICAL EVALUATION. IN VIEW OF THE TECHNICAL NATURE OF THE DETERMINATION THAT ANOTHER PROPOSAL WAS PREFERRED TO ACSI'S, THE IMPORTANCE ATTACHED TO FACTORS OTHER THAN PRICE IN RESEARCH AND DEVELOPMENT CONTRACTS, AND THE DISCRETION VESTED IN THE CONTRACTING OFFICIALS, WE CANNOT CONCLUDE FROM OUR REVIEW OF THE RECORD THAT THE PROCURING AGENCY ABUSED ITS DISCRETION IN SELECTING A PROPOSED CONTRACTOR FOR THIS RESEARCH AND DEVELOPMENT PROGRAM. SEE 46 COMP. GEN. 885 (1967).

CONCERNING THE CONTENTION THAT THIS PROCUREMENT IS NOT A TRUE RESEARCH AND DEVELOPMENT EFFORT, THE RECORD SUBMITTED HERE CONTAINS A DETERMINATION THIS PROCUREMENT UNDER THE AUTHORITY OF 10 U.S.C. 2304(A)(11). UNDER 10 U.S.C. 2310(B), THE D&F UNDER 10 U.S.C. 2304(A)(11) IS MADE FINAL AND IS THEREFORE NOT SUBJECT TO QUESTION BY OUR OFFICE.

WITH RESPECT TO THE CONTENTION IN ACSI'S LETTER OF JUNE 21, 1971, THAT THE PROPOSED AWARDEE IN THIS PROCUREMENT IS TRYING TO HIRE PERSONNEL FROM ACSI FOR USE ON THE CONTRACT WHEN AWARDED, WE HAVE BEEN ADVISED BY THE DEPARTMENT OF THE AIR FORCE THAT THE FIRM IN QUESTION IS NOT SOLICITING ACSI PERSONNEL FOR USE ON THIS PROCUREMENT AND INTENDS UTILIZING ITS OWN PERSONNEL AS LISTED IN ITS PROPOSAL FOR USE ON THE CONTRACT. IN ANY EVENT, THE EVALUATION OF THE APPARENTLY SUCCESSFUL CONTRACTOR'S PROPOSAL WAS MADE ON THE BASIS OF UTILIZING PERSONNEL OTHER THAN ACSI'S AND WE FIND NO BASIS FROM THE PRESENT RECORD TO DISAGREE WITH THE TECHNICAL EVALUATION OF THE PROPOSALS IN THIS CASE.

ACCORDINGLY, THE PROTEST IS DENIED.