B-172836(2), SEP 29, 1971

B-172836(2): Sep 29, 1971

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WHERE PROTESTANT WAS RANKED FOURTEENTH OUT OF FIFTEEN PROPOSALS AND WAS THUS DETERMINED NOT TO BE WITHIN A COMPETITIVE RANGE. SUCH DECISION WILL NOT BE DISTURBED BY GAO ABSENT A CLEAR SHOWING THAT IT WAS AN ARBITRARY ABUSE OF DISCRETION. PRICE IS NOT THE CONTROLLING FACTOR IN DETERMINING WHICH PROPOSAL IS MOST ADVANTAGEOUS TO THE GOVERNMENT AND THE FACT THAT PROTESTANT'S PRICE WAS SOME 50% LESS THAN THAT OF THE SUCCESSFUL OFFEROR WOULD NOT. SECRETARY: ENCLOSED ARE COPIES OF OUR DECISIONS OF TODAY TO NUCLEONICS DEVELOPMENT COMPANY (NDC) AND GENERAL MEANS. THESE PROTESTS WERE THE SUBJECT OF REPORTS DATED JUNE 21 AND JULY 15. NDC WAS DETERMINED TO BE "NONRESPONSIVE" AND ITS PROPOSAL WAS DOWNGRADED DURING EVALUATION BECAUSE IT FAILED TO COMPLY WITH AN ORAL REQUEST TO CONFIRM IN WRITING ITS INTENT TO FURNISH A ONE-PIECE UNIT.

B-172836(2), SEP 29, 1971

BID PROTEST - EVALUATION FACTORS - COMPETITIVE RANGE 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 NON- COMBUSTIBLE CONTENT OF MINE DUST. WHERE PROTESTANT WAS RANKED FOURTEENTH OUT OF FIFTEEN PROPOSALS AND WAS THUS DETERMINED NOT TO BE WITHIN A COMPETITIVE RANGE, SUCH DECISION WILL NOT BE DISTURBED BY GAO ABSENT A CLEAR SHOWING THAT IT WAS AN ARBITRARY ABUSE OF DISCRETION. FURTHER, IN COST-TYPE CONTRACTS, PRICE IS NOT THE CONTROLLING FACTOR IN DETERMINING WHICH PROPOSAL IS MOST ADVANTAGEOUS TO THE GOVERNMENT AND THE FACT THAT PROTESTANT'S PRICE WAS SOME 50% LESS THAN THAT OF THE SUCCESSFUL OFFEROR WOULD NOT, IN AND OF ITSELF, QUALIFY PROTESTANT FOR AWARD.

TO MR. SECRETARY:

ENCLOSED ARE COPIES OF OUR DECISIONS OF TODAY TO NUCLEONICS DEVELOPMENT COMPANY (NDC) AND GENERAL MEANS, INC., DENYING THEIR RESPECTIVE PROTESTS REGARDING REQUEST FOR PROPOSALS NO. H0110836, ISSUED BY THE BUREAU OF MINES. THESE PROTESTS WERE THE SUBJECT OF REPORTS DATED JUNE 21 AND JULY 15, 1971, FROM THE DEPUTY ASSISTANT SECRETARY FOR ADMINISTRATION.

IN THE COURSE OF OUR REVIEW OF THE PROCUREMENT SEVERAL MATTERS BEARING ON PROCUREMENT TECHNIQUE CAME TO LIGHT WHICH REQUIRE COMMENT. NDC WAS DETERMINED TO BE "NONRESPONSIVE" AND ITS PROPOSAL WAS DOWNGRADED DURING EVALUATION BECAUSE IT FAILED TO COMPLY WITH AN ORAL REQUEST TO CONFIRM IN WRITING ITS INTENT TO FURNISH A ONE-PIECE UNIT. IN VIEW OF THE IMPORTANCE ATTACHED TO THE REQUEST BY BUREAU OF MINES PERSONNEL AND THE EFFECT OF NONCOMPLIANCE, THIS REQUEST AND ALL OTHER REQUESTS OF SIMILAR SIGNIFICANCE SHOULD HAVE BEEN CONVEYED TO NDC IN WRITING. FURTHERMORE, BECAUSE OF ITS SIGNIFICANCE, ADVICE TO OFFERORS CONCERNING THE SUBMISSION OF THEIR "BEST AND FINAL" OFFERS ALSO SHOULD HAVE BEEN IN WRITING AND NOT MERELY ORAL AS WE UNDERSTAND WAS THE PRACTICE IN THIS CASE.

IT IS ALSO OUR UNDERSTANDING THAT THE "BEST AND FINAL" PROPOSALS OF VARIOUS OFFERORS WERE NOT SUBMITTED BY THE SAME COMMON CUTOFF DAY. HAVE BEEN INFORMALLY ADVISED THAT ALL FIRMS WERE GIVEN AN EQUAL AMOUNT OF TIME FROM THE DATE OF THEIR RESPECTIVE "TECHNICAL CLARIFICATION SESSIONS" TO SUBMIT REVISED PROPOSALS SINCE IT WAS FELT THAT THIS WAS THE ONLY WAY TO GIVE OFFERORS EQUAL TIME TO REVISE. WE HAVE OBJECTED TO "SEQUENTIAL" CUTOFF DATES FOR CLOSING NEGOTIATIONS AND WE HAVE INTERPRETED SECTION 1- 3.805-1(B) OF THE FEDERAL PROCUREMENT REGULATIONS TO REQUIRE A COMMON CUTOFF DATE AS AN INCIDENT TO THE PROPER CLOSING OF NEGOTIATIONS. SEE 50 COMP. GEN. (B-169429, AUGUST 21, 1970). THE PROCEDURE FOLLOWED IN THIS PROCUREMENT OBVIOUSLY WAS NOT IN CONSONANCE WITH THAT INTERPRETATION.

FURTHER, WE HAVE FOUND THAT CHANGES TO THE RFP WERE NOT COMMUNICATED IN WRITING AS REQUIRED BY FPR 1-3.805-1(D).

THE ABOVE DEFICIENCIES IN PROCEDURES ARE BROUGHT TO YOUR ATTENTION WITH THE SUGGESTION THAT APPROPRIATE STEPS BE TAKEN TO PREVENT THEIR RECURRENCE IN FUTURE PROCUREMENTS UNDER COMPETITIVE NEGOTIATION METHODS.