B-173099(1), MAY 25, 1972

B-173099(1): May 25, 1972

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THE RFP CLEARLY STATED THAT IT WAS FOR PLANNING PURPOSES ONLY. OFFERORS WERE ALSO ON NOTICE THAT THE GOVERNMENT WAS INTERESTED. AGREES THAT THE PREDETERMINED SCORE METHOD IS POOR. THE EVALUATION WAS MADE IN GOOD FAITH AND WAS NOT PREJUDICIAL SINCE NO AWARDS WERE MADE TO ANY OF THE "ACTIVE" PROPOSERS. WHILE THE PROCUREMENT MIGHT HAVE BEEN CONDUCTED IN A MORE EFFECTIVE AND EXPEDITIOUS MANNER. THE PROTEST IS DENIED. TO ASTROPHYSICS RESEARCH CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF JUNE 15. YOU HAVE SUBMITTED A CLAIM FOR $33. IT WAS ESTIMATED THAT THE PROJECT WOULD COST $1 MILLION. THE PROJECT WAS BASED ON A STUDY WHICH EXAMINED THE FEASIBILITY OF CERTAIN OIL TAGGING TECHNIQUES. IT WAS DETERMINED AT THE OUTSET THAT THE RFP WOULD NOT BE LIMITED SOLELY TO THE STUDY'S RECOMMENDATION AND THAT DIFFERENT CONCEPTS WOULD BE CONSIDERED UPON SUFFICIENT JUSTIFICATION.

B-173099(1), MAY 25, 1972

BID PROTEST - ALLEGED IMPROPER PROCUREMENT - CLAIM FOR PROPOSAL PREPARATION COSTS DECISION DENYING THE PROTEST OF ASTROPHYSICS RESEARCH CORPORATION AGAINST PROCUREMENT PROCEDURES UNDER AN RFP ISSUED BY THE ENVIRONMENTAL PROTECTION AGENCY FOR THE DEVELOPMENT OF SYSTEMS TO IDENTIFY OIL SPILLS. IN COMPLIANCE WITH THE PURPOSE OF FPR 1-1.314, THE RFP CLEARLY STATED THAT IT WAS FOR PLANNING PURPOSES ONLY, SINCE FUNDS FOR THE PROCUREMENT HAD NOT YET BEEN APPROPRIATED. OFFERORS WERE ALSO ON NOTICE THAT THE GOVERNMENT WAS INTERESTED, BUT WOULD NOT NECESSARILY MAKE AWARDS IN ALL TAGGING CATEGORIES. THE COMP. GEN. AGREES THAT THE PREDETERMINED SCORE METHOD IS POOR, BUT IN THIS CASE, THE EVALUATION WAS MADE IN GOOD FAITH AND WAS NOT PREJUDICIAL SINCE NO AWARDS WERE MADE TO ANY OF THE "ACTIVE" PROPOSERS. FINALLY, THERE EXISTS NO EVIDENCE OF BAD FAITH IN THE AGENCY'S FAILURE TO CLARIFY THE PURPOSE OF ITS DISCUSSIONS WITH ASTROPHYSICS. PREPARATION COSTS MAY BE REIMBURSABLE WHERE THE GOVERNMENT HAS BREACHED ITS IMPLIED OBLIGATION TO FAIRLY CONSIDER A BID OR PROPOSAL. KECO INDUSTRIES V UNITED STATES, 428, F.2D 1233 (CT. CL. 1970). HOWEVER, IN THIS CASE, WHILE THE PROCUREMENT MIGHT HAVE BEEN CONDUCTED IN A MORE EFFECTIVE AND EXPEDITIOUS MANNER, THE FACTS DO NOT WARRANT THE SUBJECT CLAIM FOR RELIEF. ACCORDINGLY, THE PROTEST IS DENIED.

TO ASTROPHYSICS RESEARCH CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 15, 1971, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE PROCEDURES USED BY THE ENVIRONMENTAL PROTECTION AGENCY (EPA) IN AWARDING CONTRACTS UNDER REQUEST FOR PROPOSALS (RFP) WA 70-72, FOR THE DEVELOPMENT OF A SYSTEM TO IDENTIFY THE SOURCE OF OIL SPILLS. BY LETTER DATED MARCH 24, 1972, YOU HAVE SUBMITTED A CLAIM FOR $33,011 FOR EXPENDITURES INCURRED WITH RESPECT TO YOUR EFFORTS.

ON JUNE 17, 1970, THE ASSOCIATE COMMISSIONER OF THE FEDERAL WATER QUALITY ADMINISTRATION (FWQA), A PREDECESSOR AGENCY OF EPA, CONCURRED IN A RECOMMENDATION FOR PUBLISHING A REQUEST FOR PROPOSALS FOR OIL SPILL IDENTIFICATION. IT WAS ESTIMATED THAT THE PROJECT WOULD COST $1 MILLION, WOULD LAST 12 MONTHS AND WOULD RESULT IN TWO TO FIVE CONTRACTS. THE PROJECT WAS BASED ON A STUDY WHICH EXAMINED THE FEASIBILITY OF CERTAIN OIL TAGGING TECHNIQUES. IT WAS DETERMINED AT THE OUTSET THAT THE RFP WOULD NOT BE LIMITED SOLELY TO THE STUDY'S RECOMMENDATION AND THAT DIFFERENT CONCEPTS WOULD BE CONSIDERED UPON SUFFICIENT JUSTIFICATION. THE RFP WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY ON JUNE 24, 1970, WHICH BRIEFLY DESCRIBED THE SYSTEMS TO BE CONSIDERED AS "ACTIVE" REQUIRING THE ADDITION OF A UNIQUE TAG OR TAGS TO OIL CARGOS OR "PASSIVE", AN ANALYTICAL TECHNIQUE WHICH RELIES UPON THE INHERENT CHARACTERISTICS OF THE OIL, OR A COMBINATION OF THE TWO.

ON JULY 6, 1970, RFP NO. WA 70-72 WAS ISSUED BY FWQA. PAGE 2 OF THE TRANSMITTAL LETTER DESCRIBED THE EVALUATION CRITERIA. A PROPOSAL COULD BE GIVEN A MAXIMUM OF 80 POINTS FOR TECHNICAL DEVELOPMENT PROGRAM, 10 POINTS FOR PROJECT PERSONNEL AND 10 POINTS FOR COMPANY EXPERIENCE AND FACILITIES. PAGE 5 OF THE TRANSMITTAL LETTER ADVISED AS FOLLOWS:

"THE CONTRACTING OFFICER IS THE ONLY INDIVIDUAL WHO CAN COMMIT THE GOVERNMENT TO THE EXPENDITURE OF PUBLIC FUNDS IN CONNECTION WITH THE PROPOSED PROCUREMENT. THIS RFP DOES NOT COMMIT THE GOVERNMENT TO PAY ANY COSTS INCURRED IN THE SUBMISSION OF THE PROPOSAL NOR TO PROCURE OR CONTRACT FOR SERVICES OR SUPPLIES. AT THE PRESENT TIME FUNDS HAVE NOT BEEN ALLOCATED FOR THIS PROCUREMENT AND ACCORDINGLY IT IS CONSIDERED A PLANNING PURPOSE PROCUREMENT."

THE SCHEDULED CLOSING DATE FOR RECEIPT OF PROPOSALS IN THE RFP WAS AUGUST 10, 1970. BY THE CLOSING DATE 39 PROPOSALS, INCLUDING YOURS, WERE RECEIVED. THE PROPOSALS WERE SUBMITTED TO AN EVALUATION PANEL WHICH DIVIDED THEM INTO ACTIVE AND PASSIVE. A MINIMUM QUALIFYING SCORE FOR EACH CATEGORY WAS ESTABLISHED - 350 FOR PASSIVE TAGGING AND 325 FOR ACTIVE TAGGING. TWO PASSIVE AND TWO ACTIVE TAGGING PROPOSALS RECEIVED SCORES HIGHER THAN THE MINIMUM FOR EACH CATEGORY. EIGHT PASSIVE TAGGING PROPOSALS HAD SCORES BELOW THE MINIMUM. YOUR PROPOSAL WAS ONE OF THE 27 ACTIVE TAGGING PROPOSALS WHICH FELL BELOW THE MINIMUM.

BY MEMORANDUM DATED OCTOBER 7, 1970, THE BOARD'S FINDINGS WERE TRANSMITTED TO THE CONTRACT NEGOTIATOR ADVISING THAT THEY NEEDED ANSWERS TO SOME QUESTIONS FROM THE TWO QUALIFYING PASSIVE TAGGING SOURCES BEFORE SUBMITTING A REQUEST TO NEGOTIATE CONTRACTS WITH THE ACCEPTABLE SOURCES FOR PASSIVE AND ACTIVE TAGGING. THE CONTRACT NEGOTIATOR WAS ADVISED THAT THE TECHNICAL ACTIVITY HAD NO FURTHER INTEREST IN ANY OF THE OTHER PROPOSALS RECEIVED, AND REQUESTED THAT THE OTHER OFFERORS BE SO ADVISED. HOWEVER, NO SUCH ADVICE WAS GIVEN TO THE OTHER OFFERORS AT THAT TIME.

YOU STATE THAT ON OR ABOUT OCTOBER 23, 1970, YOU WERE INFORMALLY ADVISED THAT YOUR PROPOSAL WAS TECHNICALLY DEFICIENT. AS A RESULT OF SEVERAL ROUNDS OF CORRESPONDENCE A MEETING WAS ARRANGED BETWEEN YOUR REPRESENTATIVES AND THE AGENCY ON FEBRUARY 3, 1971, AT WHICH, YOU CONTEND, IT WAS AGREED THAT ASTROPHYSICS COULD SUBMIT AN ADDENDUM WHICH WOULD BE CONSIDERED PART OF ITS PROPOSAL. THIS ADDENDUM WAS HAND CARRIED TO THE CONTRACTING OFFICER ON FEBRUARY 16, 1971. THEREAFTER YOU HAD SEVERAL CONTACTS WITH AGENCY REPRESENTATIVES AND ON APRIL 9, 1971, YOU SUBMITTED CERTAIN ADDITIONAL COST DATA. YOU INDICATE THAT YOU RECEIVED A REVISED WORK STATEMENT ON APRIL 15, 1971, TO WHICH YOU RESPONDED ON MAY 4, 1971. HOWEVER, UPON INQUIRY YOU ASCERTAINED THAT THERE HAD BEEN NO EVALUATION OF YOUR REVISED TECHNICAL PROPOSALS. YOU STATE THAT ON OR ABOUT MAY 21, 1971, YOU WERE ADVISED THAT THE AGENCY WAS NOT PROCEEDING WITH AWARDS FOR THE ACTIVE TAGGING TECHNIQUE.

EPA ADMITS THE MEETING OF FEBRUARY 3, THAT YOU SUBMITTED A REVISED COST PROPOSAL ON APRIL 9 AND THAT YOU AND THE OTHER OFFERORS IN THE ACTIVE TAGGING CATEGORY WERE SOLICITED FOR REVISED PROPOSALS ON APRIL 15, 1971. THE EPA REPORT STATES THE FOLLOWING:

"FUNDS COVERING THE PROJECT WERE APPROPRIATED ON FEBRUARY 25, 1971. NEGOTIATIONS WITH THE TWO TOP-RATED OFFERORS IN THE PASSIVE CATEGORY *** CULMINATED IN CONTRACTS DATED MAY 14, 1971 AND APRIL 15, 1971, RESPECTIVELY. A LETTER DATED APRIL 15, 1971 *** WAS SENT TO EACH ACTIVE CATEGORY OFFEROR, STATING REQUIREMENTS IN ADDITION TO THOSE OF THE RFP AND EXTENDING TO EACH OFFEROR THE OPTION OF SUBMITTING REVISED TECHNICAL AND FINANCIAL DATA. RESPONSES WERE DUE BY MAY 6, 1971. ASTROPHYSICS' RESPONSE IS ATTACHED *** .

"SUBSEQUENTLY, TECHNICAL OFFICIALS HAD DOUBTS AS TO WHETHER FURTHER AWARDS UNDER THE RFP WERE WARRANTED, PARTICULARLY IN VIEW OF CHANGES IN THE GOVERNMENT'S TECHNICAL REQUIREMENTS, AND CHANGES IN THE STATE OF THE ART, WHICH APPEARED TO DICTATE CANCELLATION OF THE ORIGINAL RFP AND ISSUANCE OF A NEW RFP (THUS ALLOWING NEW OFFERORS THE OPPORTUNITY TO PRESENT PROPOSALS). ADDITIONALLY, THE DELAYS DESCRIBED ABOVE LED TO A SITUATION IN WHICH IT WAS IMPOSSIBLE TO AWARD ANY CONTRACT FOR DEVELOPMENT OF ACTIVE TAGGING CONCEPTS WHICH WOULD UTILIZE FY 71 FUNDS; TIME REQUIRED FOR PRE-AWARD AUDIT, CLEARANCES, AND NEGOTIATIONS WAS GREATER THAN THE TIME REMAINING PRIOR TO THE END OF FY 71, AND NO TECHNICAL REEVALUATION OF THE PROPOSALS AS AMENDED HAD YET BEEN CONDUCTED. AN ADMINISTRATIVE DECISION WAS MADE TO CONCENTRATE AGENCY EFFORTS ON WORK WHICH WAS REQUIRED ON OTHER PROCUREMENT ACTIONS TO BE FUNDED WITH FY 71 FUNDS. DECISION WAS DELAYED ON THE QUESTION OF WHETHER THE RFP WOULD BE CANCELLED, OR FUNDED WITH FY 72 APPROPRIATIONS WHEN AVAILABLE. ON JULY 21, 1971, A MEMORANDUM FROM THE TECHNICAL OFFICE CONCERNED*** INFORMED THE PROCUREMENT OFFICE THAT THE RFP SHOULD BE CANCELLED."

IT IS YOUR CONTENTION THAT ACTIVE TAGGING HAS MORE MERIT AS A CONCEPT THAN PASSIVE TAGGING. YOU ALSO CONTEND THAT THE FAILURE TO OBTAIN CLARIFICATIONS OF YOUR PROPOSAL WAS CONTRARY TO THE REQUIREMENT THAT DISCUSSIONS SHOULD BE HELD WITH ALL OFFERORS IN THE COMPETITIVE RANGE AND THAT IF SUCH DISCUSSIONS HAD BEEN HELD, CERTAIN TECHNICAL QUESTIONS ON YOUR PROPOSAL COULD HAVE BEEN RESOLVED. YOU QUESTION THE VALIDITY OF SPLITTING THE PROCUREMENT INTO ACTIVE AND PASSIVE CATEGORIES WITHOUT NOTIFICATION TO PROSPECTIVE OFFERORS. YOU ALSO QUESTION THE SCORING PROCEDURE WHICH PERMITTED EVALUATION OF TWO DIFFERENT CATEGORIES. YOU FURTHER CONTEND THAT THE MEETING OF FEBRUARY 3 AND EVENTS TRANSPIRING THEREAFTER CONSTITUTED PRECONTRACT NEGOTIATIONS WITH THE UNDERSTANDING THAT A CONTRACT WOULD BE FORTHCOMING TO YOUR CONCERN. FINALLY, YOU URGE THAT ISSUING AN RFP WHEN FUNDS HAVE NOT BEEN ALLOCATED IS CONTRARY TO FPR 1-1.314 UNLESS THE SOLICITATION CONTAINS A QUALIFYING STATEMENT THAT THE GOVERNMENT DOES NOT INTEND TO AWARD A CONTRACT.

EPA ACKNOWLEDGES THAT THIS SOLICITATION AND THE SUBSEQUENT ACTIONS SHOULD HAVE BEEN UNDERTAKEN IN A MORE EXPEDITIOUS MANNER. IT INTENDS TO TAKE STEPS TO PREVENT A RECURRENCE OF THE DIFFICULTIES THAT AROSE HERE. THUS EPA REPORTS THAT IT PROPOSES TO REVIEW THE FOLLOWING AREAS:

"(A) STATEMENTS OF SCOPE OF WORK, AND SEPARATION OF DIFFERENT TYPES OF WORK INTO DIFFERENT RFPS.

"(B) AGENCY PRACTICE REGARDING INFORMAL ADVICE TO OFFERORS ON THE STATUS OF PROCUREMENT ACTIONS.

"(C) THE NECESSITY OF INSURING THAT THE BASIS OF SELECTION OF RECOMMENDED AWARDEES CORRESPONDS TO THE RFP."

HOWEVER, EPA DOES NOT BELIEVE THAT THE CIRCUMSTANCES HERE JUSTIFY AN AWARD OR ANY OTHER RELIEF TO YOUR FIRM.

THE INITIAL RFP ADVISED THAT THE PROCUREMENT WAS BEING ISSUED FOR PLANNING PURPOSES AND THAT THE GOVERNMENT WAS COMMITTED NEITHER TO PAY ANY COSTS INCURRED IN THE SUBMISSION OF A PROPOSAL NOR TO PROCURE OR CONTRACT FOR SERVICES OR SUPPLIES. OFFERORS WERE SPECIFICALLY INFORMED BY THE RFP THAT THE PROCUREMENT WAS CONTINGENT UPON THE FUTURE AVAILABILITY OF FUNDS. IN OUR VIEW THE RFP WAS IN COMPLIANCE WITH THE POLICY OF FPR 1- 1.314 WHICH STATES THAT WHEN RFPS ARE ISSUED FOR INFORMATIONAL OR PLANNING PURPOSES, THE REQUEST SHOULD CLEARLY SET FORTH THIS INTENTION.

THE RFP ALSO ADVISED THAT PROPOSALS WERE BEING SOLICITED FOR ACTIVE OR PASSIVE TAGGING TECHNIQUES OR A COMBINATION OF BOTH. AS NOTED, EPA INTENDS IN THE FUTURE TO SEPARATE DIFFERENT TYPES OF WORK INTO DIFFERENT RFPS. BE THAT AS IT MAY, WE THINK OFFERORS WERE SUFFICIENTLY ON NOTICE THAT THE GOVERNMENT WAS INTERESTED IN PROPOSALS FOR VARIOUS TAGGING TECHNIQUES BUT WAS NOT IN A POSITION (DUE TO FUNDING LIMITATIONS) TO NECESSARILY MAKE AWARDS FOR ANY OR ALL CATEGORIES OF TAGGING.

THE RECORD INDICATES THAT THE INITIAL TECHNICAL EVALUATION WAS CARRIED OUT IN GOOD FAITH. WE FIND NO INDICATION OF ANY ATTEMPT TO DISCRIMINATE AGAINST YOUR PROPOSAL. WHILE WE DO NOT AGREE WITH THE PREDETERMINED SCORE METHOD FOR DETERMINING WHICH PROPOSALS FALL WITHIN A COMPETITIVE RANGE, ITS USE IN THIS CASE TO RANK THE VARIOUS ACTIVE TAGGING PROPOSALS WAS NOT PREJUDICIAL SINCE NO AWARDS WERE MADE FOR THAT TECHNIQUE.

FUNDS COVERING THE PROJECT BECAME AVAILABLE IN LATE FEBRUARY 1971. THEREAFTER, AWARDS WERE MADE ON THE PASSIVE TAGGING TECHNIQUE. IT IS REPORTED THAT DURING THIS PERIOD (APRIL AND MAY 1971) THE DECISION NOT TO AWARD ANY CONTRACT FOR ACTIVE TAGGING HAD NOT YET BEEN TAKEN, AND THAT DISCUSSIONS AND CORRESPONDENCE WERE CONDUCTED WITH YOUR FIRM DURING THIS PERIOD BECAUSE THE AGENCY WAS INVESTIGATING THE POSSIBILITY OF MAKING AWARDS FOR ACTIVE TAGGING. EPA IN EFFECT ACKNOWLEDGES THAT THE PURPOSE OF THESE DISCUSSIONS COULD HAVE BEEN EXPLAINED MORE CLEARLY TO YOUR FIRM. HOWEVER, WE FIND NO EVIDENCE OF BAD FAITH ON THE PART OF THE CONTRACTING OFFICIALS. NOR CAN WE CONCLUDE THAT THE AGENCY ACTED ARBITRARILY IN REGARD TO ITS PREFERENCE FOR PASSIVE TAGGING OVER ACTIVE TAGGING.

IT HAS BEEN HELD THAT BID OR PROPOSAL PREPARATION COSTS MAY BE REIMBURSABLE WHERE THE GOVERNMENT HAS BREACHED ITS IMPLIED OBLIGATION TO FAIRLY CONSIDER A BID OR PROPOSAL. SEE KECO INDUSTRIES V UNITED STATES, 428 F. 2D 1233 (CT. CL. 1970); CONTINENTAL BUSINESS ENTERPRISES, INC. V UNITED STATES, CT. CL. NO. 160-69, DECIDED DECEMBER 10, 1971. IN THIS CASE, WHILE THE EPA ADMITS THAT THE EXAMINATION OF PROPOSALS WAS NOT CONDUCTED IN THE MOST EFFECTIVE AND EXPEDITIOUS MANNER, WE DO NOT FIND THAT THE FACTS WARRANT A CLAIM FOR PROPOSAL PREPARATION COSTS OR FOR ANY OTHER FORM OF RELIEF.

ACCORDINGLY, YOUR PROTEST IS DENIED.