B-172836(1), SEP 29, 1971

B-172836(1): Sep 29, 1971

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BECAUSE PROTESTANT'S OFFER WAS NOT REJECTED FOR LACK OF RESPONSIBILITY. THE MATTER WAS NOT FOR REFERRAL TO THE SMALL BUSINESS ADMINISTRATION. THE FACT THAT PROTESTANT AND OTHERS WERE APPRISED OF THE BUREAU'S INTENT AT THE TECHNICAL CLARIFICATION SESSION. MITIGATES ANY PREJUDICE WHICH MAY HAVE RESULTED FROM THE VAGUENESS IN THE LANGUAGE. TO NUCLEONICS DEVELOPMENT COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JULY 8. INDICATES THAT FIFTEEN PROPOSALS WERE RECEIVED. THE REPORT STATES THAT NDC WAS ASKED TO CONFIRM THIS INTENT IN WRITING AND THAT IT FAILED TO DO SO. THE NDC PROPOSAL WAS ULTIMATELY DETERMINED TO BE NONRESPONSIVE. THE NDC PROPOSAL WAS EVALUATED ON THE BASIS ORIGINALLY SUBMITTED AND WAS RANKED THIRD WITH A SCORE OF 700 POINTS.

B-172836(1), SEP 29, 1971

BID PROTEST - BID RESPONSIVENESS - VAGUE LANGUAGE DECISION DENYING PROTEST AGAINST AWARD OF A CONTRACT TO ANY OTHER OFFEROR UNDER AN RFP ISSUED BY THE BUREAU OF MINES, DEPARTMENT OF THE INTERIOR, FOR FIVE "SELF-CONTAINED" PROTOTYPE METERS FOR MEASURING THE INCOMBUSTIBLE CONTENT OF MINE DUST. BECAUSE PROTESTANT'S OFFER WAS NOT REJECTED FOR LACK OF RESPONSIBILITY, THE MATTER WAS NOT FOR REFERRAL TO THE SMALL BUSINESS ADMINISTRATION. FURTHER, WHILE THE COMP. GEN. FEELS THAT THE TERM "SELF-CONTAINED" DOES NOT NECESSARILY CONNOTE A ONE-PIECE UNIT, THE FACT THAT PROTESTANT AND OTHERS WERE APPRISED OF THE BUREAU'S INTENT AT THE TECHNICAL CLARIFICATION SESSION, MITIGATES ANY PREJUDICE WHICH MAY HAVE RESULTED FROM THE VAGUENESS IN THE LANGUAGE. THE PROTEST MUST THEREFORE BE DENIED.

TO NUCLEONICS DEVELOPMENT COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JULY 8, 1971, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER OFFEROR UNDER REQUEST FOR PROPOSALS (RFP) NO. H0110836, ISSUED BY THE BUREAU OF MINES, DEPARTMENT OF THE INTERIOR.

THE RFP SOLICITED OFFERS FOR A COST-TYPE CONTRACT FOR THE DESIGN, FABRICATION AND DELIVERY OF FIVE PROTOTYPE METERS FOR MEASURING THE INCOMBUSTIBLE CONTENT OF MINE DUST USING BACKSCATTER OF LOW ENERGY GAMMA RAYS. THE RFP STATED VARIOUS EVALUATION CRITERIA AND ADVISED OFFERORS THAT AWARD WOULD BE MADE TO THE OFFEROR SUBMITTING THE MOST ADVANTAGEOUS OFFER CONSIDERING THE CRITERIA, "COST, FEE AND OTHER FACTORS." AS TO THE INSTRUMENT ITSELF, THE RFP REQUIRED IT TO BE A "SELF-CONTAINED" BATTERY POWERED MODEL.

THE ADMINISTRATIVE REPORT, A COPY OF WHICH HAS BEEN PROVIDED TO YOU, INDICATES THAT FIFTEEN PROPOSALS WERE RECEIVED. SIX OF THE OFFERORS SUBMITTING PROPOSALS, INCLUDING NUCLEONICS DEVELOPMENT COMPANY (NDC), ATTENDED "TECHNICAL CLARIFICATION SESSIONS" WITH BUREAU PERSONNEL. THE BUREAU CONTENDS THAT DISCUSSION OF THE NDC PROPOSAL CENTERED AROUND THE FACT THAT NDC OFFERED A TWO-PIECE INSTRUMENT WHILE THE BUREAU INTERPRETED THE RFP TO REQUIRE A ONE-PIECE UNIT. ALTHOUGH NDC INDICATED THAT IT WOULD PROVIDE A ONE-PIECE UNIT, THE REPORT STATES THAT NDC WAS ASKED TO CONFIRM THIS INTENT IN WRITING AND THAT IT FAILED TO DO SO. AS A CONSEQUENCE, THE NDC PROPOSAL WAS ULTIMATELY DETERMINED TO BE NONRESPONSIVE. IT APPEARS, HOWEVER, THAT NOTWITHSTANDING THIS ULTIMATE DETERMINATION, THE NDC PROPOSAL WAS EVALUATED ON THE BASIS ORIGINALLY SUBMITTED AND WAS RANKED THIRD WITH A SCORE OF 700 POINTS. THE OFFEROR RECEIVING THE AWARD RECEIVED AN EVALUATION SCORE OF 914 POINTS.

NDC'S ORIGINAL LETTER OF PROTEST, WRITTEN AT A TIME WHEN THE FIRM WAS WITHOUT DEFINITE INFORMATION AS TO WHY IT DID NOT RECEIVE AN AWARD, CONTENDED (1) THAT IT SHOULD HAVE RECEIVED THE AWARD IN VIEW OF THE FACT THAT ITS PROPOSAL WAS $20,000 LESS THAN THE SUCCESSFUL OFFEROR'S, (2) THAT IF IT WAS REJECTED FOR LACK OF RESPONSIBILITY, THE MATTER SHOULD HAVE BEEN REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA), AND (3) THAT IN VIEW OF THE $20,000 DIFFERENCE PREVIOUSLY MENTIONED, IT APPEARED THAT THE SUCCESSFUL OFFEROR'S PROPOSAL INCLUDED FEATURES BEYOND THOSE SET OUT IN THE RFP AND THAT NOTICE OF SUCH FEATURES SHOULD HAVE BEEN GIVEN OTHER OFFERORS BY AMENDING THE RFP. AFTER REVIEWING A COPY OF THE ADMINISTRATIVE REPORT, NDC FURTHER CONTENDED THAT THE BUREAU HAD FAILED TO USE COST AS A FACTOR IN THEIR POINT EVALUATION, AND THAT THE REPORT CLEARLY INDICATED THE FIRM TO BE WITHIN THE COMPETITIVE RANGE. IT IS THEN URGED THAT THE NDC PROPOSAL SHOULD NOT HAVE BEEN REJECTED FOR NONRESPONSIVENESS.

WHILE WE BELIEVE THAT THIS PROCUREMENT IN SOME RESPECTS FALLS SHORT OF GOOD PROCUREMENT PRACTICE, WE DO NOT BELIEVE THAT THERE IS A LEGAL BASIS TO DISTURB THE AWARD. ACCORDINGLY, FOR THE REASONS WHICH FOLLOW, THE PROTEST IS DENIED.

NDC WAS NOT REJECTED FOR LACK OF RESPONSIBILITY AND THEREFORE THE MATTER WAS NOT FOR REFERRAL TO SBA. WITH RESPECT TO NDC'S CONTENTION THAT THE BUREAU FAILED TO UTILIZE COST IN THEIR POINT EVALUATION, IT IS TO BE NOTED THAT THE EVALUATION FACTORS TO WHICH POINTS WERE ASSIGNED ALL HAVE REFERENCE TO THE TECHNICAL ASPECTS OF THE PROPOSALS. CONSEQUENTLY, IT DOES NOT APPEAR THAT THE TECHNICAL EVALUATION SCORES WOULD REFLECT AN ELEMENT FOR COST. WE HAVE BEEN INFORMALLY ADVISED, HOWEVER, THAT COST WAS A CONSIDERATION IN DETERMINING THE COMPETITIVE RANGE OF PROPOSALS AND WHICH PROPOSAL WOULD BE ACCEPTED FOR AWARD. B 171857(1) AND (2), MAY 24, 1971, WHICH ARE CITED BY NDC IN SUPPORT OF THE CONTENTION WITH RESPECT TO COST CONSIDERATION, ARE THUS DISTINGUISHABLE FROM THE INSTANT CASE AND, THEREFORE, INAPPOSITE. HOWEVER, EVEN THE CITED CASES RECOGNIZE THAT IN COST-TYPE PROCUREMENTS PRICE IS NOT THE CONTROLLING FACTOR IN DETERMINING WHAT PROPOSAL IS MOST ADVANTAGEOUS TO THE GOVERNMENT. SEE ALSO 50 COMP. GEN. (B 171663, APRIL 19, 1971), AND DECISIONS CITED THEREIN. THE FACT, THEN, THAT THE NDC PROPOSAL WAS $20,000 LOWER THAN THAT OF THE SUCCESSFUL OFFEROR WOULD NOT NECESSARILY REQUIRE AWARD TO NDC.

DISPUTES EXIST BETWEEN NDC AND THE BUREAU AS TO WHETHER THE TERM "SELF- CONTAINED" MEANS A ONE- OR TWO-PIECE UNIT AND WHETHER NDC WAS EVER REQUESTED TO CONFIRM IN WRITING ITS INTENTION TO SUPPLY A ONE PIECE UNIT OR EXTENDED THE OPPORTUNITY TO AMEND OR CLARIFY ITS ORIGINAL PROPOSAL. ALTHOUGH WE TEND TO AGREE WITH NDC THAT THE TERM "SELF CONTAINED" DOES NOT NECESSARILY CONNOTE A ONE-PIECE UNIT, THE FACT THAT NDC AND OTHERS WERE APPRISED OF THE BUREAU'S INTENT AT THE "TECHNICAL CLARIFICATION SESSION" MITIGATES ANY PREJUDICE WHICH MAY HAVE RESULTED FROM THE VAGUENESS IN THE LANGUAGE.

ALTHOUGH NDC DENIES THAT IT WAS REQUESTED TO AMEND OR CLARIFY ITS PROPOSAL, WE CANNOT CONCLUDE THAT BECAUSE OF SUCH DENIAL THAT REQUEST WAS NOT MADE. FURTHER, WE FIND NOTHING IN THE RECORD THAT OVERCOMES THE ADMINISTRATIVE REPORT THAT NDC WAS REQUESTED ORALLY TO CONFIRM THE INTENT TO OFFER A ONE-PIECE UNIT. IN VIEW OF THE IMPORTANCE OF SUCH A REQUEST, WE ARE RECOMMENDING BY SEPARATE LETTER TO THE SECRETARY OF THE INTERIOR THAT IN THE FUTURE SIMILAR REQUESTS BE WRITTEN.

FINALLY, WITH RESPECT TO THE NDC CONTENTION THAT THE $20,000 DIFFERENCE BETWEEN ITS PROPOSAL AND THE SUCCESSFUL PROPOSAL INDICATES THAT THE SUCCESSFUL OFFEROR PROPOSED FEATURES NOT INCLUDED IN THE RFP, THE ADMINISTRATIVE REPORT ACKNOWLEDGES THAT THE SPECIFICATIONS IN THE CONTRACT ARE IN SOME INSTANCES STRICTER THAN THOSE IN THE ORIGINAL RFP, BUT THAT ALL OFFERORS WERE ADVISED OF THE REQUIREMENTS AT THE TECHNICAL CLARIFICATION SESSIONS. ALTHOUGH THE CHANGE IN SPECIFICATIONS SHOULD HAVE BEEN COMMUNICATED BY WRITTEN AMENDMENT AS REQUIRED BY FEDERAL PROCUREMENT REGULATIONS (FPR) 1-3.805-1(D), THE FAILURE TO COMPLY WITH THE PROCEDURAL REQUIREMENT DOES NOT RENDER THE PROCUREMENT ACTION LEGALLY DEFECTIVE IN THE CIRCUMSTANCES. HOWEVER, WE ARE ALSO RECOMMENDING TO THE SECRETARY OF THE INTERIOR THAT THE FPR BE FOLLOWED IN THE FUTURE.

A COPY OF THE LETTER TO THE SECRETARY OF THE INTERIOR IS ENCLOSED FOR YOUR INFORMATION.