B-173218(2), NOV 16, 1971

B-173218(2): Nov 16, 1971

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AWARD WAS PROPER AT A HIGHER PRICE IN A NEGOTIATED PROCUREMENT. ALTHOUGH PROTESTANT WAS LOW OFFEROR. IT WAS SECOND LOWEST FROM A TECHNICAL STANDPOINT (45 POINTS) AND THIS FACTOR MAY BE RELIED ON BY THE CONTRACTING AGENCY IN DETERMINING WHO SHOULD RECEIVE THE AWARD. THE PROTEST IS DENIED. TO ANALYTICAL SYSTEMS CORPORATION: REFERENCE IS MADE TO YOUR LETTER DATED JULY 1. QUOTED BELOW: " *** THIS FACTOR IS THE ONLY ONE IN THE CONTRACT TO BE PAID ON A COST REIMBURSEMENT BASIS. A FACT WHICH INDICATES THAT THE GOVERNMENT DOES NOT KNOW HOW MUCH TRAVEL WILL BE GENERATED BY THE CONTRACT. THERE IS NO PRECEDENT UPON WHICH TO ESTIMATE PROBABLE TRAVEL. NEW ENGLAND IS THE SMALLEST AREA GEOGRAPHICALLY AND CONSEQUENTLY EASIER TO SERVICE ON A DAY- TRIP BASIS.

B-173218(2), NOV 16, 1971

BID PROTEST - NEGOTIATED PROCUREMENT - TECHNICAL SUPERIORITY DECISION DENYING PROTEST AGAINST AWARD OF A CONTRACT TO THE PACE GROUP UNDER A PORTION OF A NEGOTIATED SOLICITATION (REGION I) ISSUED BY THE SMALL BUSINESS ADMINISTRATION. WHERE SUCCESSFUL OFFEROR HAS SCORED 90 OUT OF A POSSIBLE 100 POINTS, AWARD WAS PROPER AT A HIGHER PRICE IN A NEGOTIATED PROCUREMENT. ALTHOUGH PROTESTANT WAS LOW OFFEROR, IT WAS SECOND LOWEST FROM A TECHNICAL STANDPOINT (45 POINTS) AND THIS FACTOR MAY BE RELIED ON BY THE CONTRACTING AGENCY IN DETERMINING WHO SHOULD RECEIVE THE AWARD. THEREFORE, THE PROTEST IS DENIED.

TO ANALYTICAL SYSTEMS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 1, 1971, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE PACE GROUP (PACE) UNDER THE REGION I PORTION OF NEGOTIATED SOLICITATION NO. SBA -406-MA-71-RFP-1, ISSUED BY THE SMALL BUSINESS ADMINISTRATION (SBA) ON APRIL 16, 1971.

YOU ALLEGE THAT THE AWARDEE DID NOT MEET THE RFP REQUIREMENTS CONCERNING PAST EXPERIENCE IN DEALING WITH DISADVANTAGED FIRMS. OUR REVIEW OF THE TECHNICAL EVALUATION SHEET REVEALS THAT PACE RECEIVED 90 OUT OF A POSSIBLE 100 POINTS AND, OF PARTICULAR SIGNIFICANCE, SCORED 20 OUT OF 25 POINTS REPRESENTING RAPPORT WITH THE ELIGIBLE INDIVIDUALS AND ENTERPRISES TO BE SERVED. FURTHERMORE, YOU ALLEGE THAT PACE'S ESTIMATE FOR TRAVEL AND PER DIEM OF $4,000 INDICATES A LACK OF UNDERSTANDING OF THE RFP'S FIELD REQUIREMENTS. WE DO NOT AGREE AND CONCUR WITH SBA'S POSITION IN THE MATTER, QUOTED BELOW:

" *** THIS FACTOR IS THE ONLY ONE IN THE CONTRACT TO BE PAID ON A COST REIMBURSEMENT BASIS, A FACT WHICH INDICATES THAT THE GOVERNMENT DOES NOT KNOW HOW MUCH TRAVEL WILL BE GENERATED BY THE CONTRACT. NEW ENGLAND HAS NOT HAD SUCH A CONTRACT BEFORE; CONSEQUENTLY, THERE IS NO PRECEDENT UPON WHICH TO ESTIMATE PROBABLE TRAVEL. FURTHERMORE, NEW ENGLAND IS THE SMALLEST AREA GEOGRAPHICALLY AND CONSEQUENTLY EASIER TO SERVICE ON A DAY- TRIP BASIS. MOST SMALL BUSINESS CONCERNS ARE CONCENTRATED IN THREE HEAVILY POPULATED CONTIGUOUS STATES, MASSACHUSETTS, RHODE ISLAND, AND CONNECTICUT, MOST PARTS OF WHICH ARE WITHIN A FEW HOURS DRIVE OF HARTFORD. FURTHERMORE, PACE MAY HAVE CONTEMPLATED SUBCONTRACTING A SIGNIFICANT AMOUNT OF WORK TO MANAGEMENT CONSULTANT FIRMS REAR THE CLIENTS. THEREFORE, THE TRAVEL AND PER DIEM ESTIMATE OF PACE IS CONSIDERED TO BE REASONABLE. IT IS NOTED THAT ONE OTHER OFFEROR *** ALSO ESTIMATED THE COST OF TRAVEL AND PER DIEM TO BE $4,000."

IN ADDITION, YOU ASCRIBE AN IMPROPER CONNOTATION TO THE FACT THAT THE TECHNICAL EVALUATION COMMITTEE OF SIX PERSONS DID NOT PARTICIPATE EXCLUSIVELY IN THE EVALUATION OF ALL PROPOSALS, POINTING OUT THAT A TOTAL OF 11 PERSONS PARTICIPATED AT VARIOUS TIMES. WHILE THIS MAY BE TRUE, WE HAVE FOUND NOTHING IN OUR REVIEW WHICH INDICATES THAT THE TECHNICAL EVALUATIONS WERE CONDUCTED ON AN UNEQUAL BASIS IN A MANNER INCONSISTENT WITH THE EVALUATION OF PROPOSALS FROM OTHER OFFERORS OR THE TERMS OF THE SOLICITATION. SEE B-171030, JUNE 22, 1971.

YOU FURTHER CLAIM THAT THE AWARD WAS NOT MADE TO YOUR FIRM AS THE LOWEST RESPONSIBLE OFFEROR. IN SUPPORT THEREOF, YOU STATE THAT YOUR PROPOSAL IS RESPONSIVE AND THAT SBA NEVER NOTIFIED YOUR FIRM THAT ITS PROPOSAL WAS TECHNICALLY UNACCEPTABLE. SBA REPORTS THAT YOUR FIRM, ALONG WITH THREE OTHERS WITH 45 POINTS, ALTHOUGH NOT DETERMINED TO BE UNACCEPTABLE, WAS IN THE SECOND LOWEST POSITION, FROM A TECHNICAL STANDPOINT, OF THE 17 PROPOSALS RECEIVED IN RESPONSE TO THE REGION I PORTION OF THE SOLICITATION. FURTHERMORE, SBA SUPPORTED ITS AWARD TO PACE AT A HIGHER PRICE BY CITING THE TECHNICAL SUPERIORITY OF THAT FIRM (90 POINTS) AND BY TAKING THE POSITION THAT THE LOWEST PRICE NEED NOT BE THE DECIDING FACTOR IN THE AWARD OF A NEGOTIATED PROCUREMENT. WE AGREE. SEE OUR DECISION B- 171580, JUNE 21, 1971, WHICH STATES, IN PERTINENT PART, AS FOLLOWS:

"THE SELECTION OF THE CONTRACTOR BEST QUALIFIED FOR AWARD IN A NEGOTIATED PROCUREMENT IS TO BE MADE BY THE ADMINISTRATIVE OFFICE CONCERNED IN THE EXERCISE OF ITS SOUND JUDGMENT AS TO THE BEST INTEREST OF THE GOVERNMENT. B-149344, DECEMBER 26, 1962. UNDER FORMALLY ADVERTISED PROCUREMENTS AWARD MAY BE MADE ONLY TO THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER; HOWEVER, THIS RULE IS NOT NECESSARILY APPLIED TO NEGOTIATED PROCUREMENTS. IN THE LATTER SITUATION, THE CONTRACTING AGENCY IN ITS DISCRETION MAY RELY UPON FACTORS OTHER THAN PRICE. SEE B 155983, MARCH 31, 1965. OUR OFFICE HAS SPECIFICALLY UPHELD THE AWARD OF A NEGOTIATED CONTRACT ON THE BASIS OF FACTORS OTHER THAN PRICE. B 159032, AUGUST 1, 1966."

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.

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