B-173218(4), NOV 16, 1971

B-173218(4): Nov 16, 1971

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PROTESTANT'S OFFER RECEIVED THE SECOND LOWEST TECHNICAL RATING (25 POINTS) WHILE ZAIRE WAS RATED HIGHEST WITH 80 OUT OF 100 POINTS. SINCE 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 JUDGEMENT AS TO THE BEST INTERESTS OF THE GOVERNMENT. THE PROPOSALS SUBMITTED IN RESPONSE TO THE SOLICITATION WERE FORWARDED TO AN EVALUATION COMMITTEE FOR TECHNICAL EVALUATION AND A DETERMINATION AS TO WHETHER THE VARIOUS PROPOSERS' PRICES WERE ACCEPTABLE OR REASONABLE. AWARD WAS MADE TO ZAIRE ASSOCIATES. YOU HAVE PROTESTED TO OUR OFFICE THAT "SINCE WE HAVE NO REASON TO BELIEVE THAT OUR PROPOSAL WAS NOT RESPONSIVE TO THE ADVERTISED REQUIREMENTS.

B-173218(4), NOV 16, 1971

BID PROTEST - NEGOTIATED PROCUREMENT - TECHNICAL SUPERIORITY DECISION DENYING PROTEST AGAINST AWARD OF A CONTRACT TO ZAIRE ASSOCIATES, INC., UNDER A PORTION OF A NEGOTIATED SOLICITATION (REGION II) ISSUED BY THE SMALL BUSINESS ADMINISTRATION. ALTHOUGH PROTESTANT SUBMITTED THE LOWEST EVALUATED PRICE OF $134,776 AS OPPOSED TO $151,541 SUBMITTED BY SUCCESSFUL OFFEROR, PROTESTANT'S OFFER RECEIVED THE SECOND LOWEST TECHNICAL RATING (25 POINTS) WHILE ZAIRE WAS RATED HIGHEST WITH 80 OUT OF 100 POINTS. SINCE 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 JUDGEMENT AS TO THE BEST INTERESTS OF THE GOVERNMENT, THE PROTEST MUST BE DENIED.

TO COMPUTEST CONTROL, DIVISION OF DIGICOM INC.:

WE REFER TO YOUR LETTER OF SEPTEMBER 7, 1971, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ZAIRE ASSOCIATES, INC., UNDER THE REGION II PORTION OF NEGOTIATED SOLICITATION NO. SBA-406-MA-71- RFP-1, ISSUED BY THE SMALL BUSINESS ADMINISTRATION (SBA), ON APRIL 16, 1971.

THE SOLICITATION, ISSUED IN IMPLEMENTATION OF SECTION 406 OF THE ECONOMIC OPPORTUNITY ACT OF 1964, AS AMENDED (42 U.S.C. 2906B), COVERED THE PROCUREMENT OF THE PROFESSIONAL SERVICES OF CONSULTANT FIRMS TO PROVIDE TECHNICAL AND MANAGEMENT ASSISTANCE TO INDIVIDUALS AND ENTERPRISES ELIGIBLE FOR ASSISTANCE UNDER SECTION 402 OF THE ACT, WITH SPECIAL ATTENTION TO SMALL BUSINESS CONCERNS LOCATED IN URBAN OR RURAL AREAS OF HIGH PROPORTIONS OF UNEMPLOYMENT OR LOW INCOME INDIVIDUALS. THE PROPOSALS SUBMITTED IN RESPONSE TO THE SOLICITATION WERE FORWARDED TO AN EVALUATION COMMITTEE FOR TECHNICAL EVALUATION AND A DETERMINATION AS TO WHETHER THE VARIOUS PROPOSERS' PRICES WERE ACCEPTABLE OR REASONABLE. THE EVALUATION COMMITTEE SELECTED ZAIRE ASSOCIATES, INC., AS SUBMITTING THE PROPOSAL WHICH, IN ITS OPINION, PROMISED THE GREATEST VALUE TO THE GOVERNMENT FROM A TECHNICAL AND PRICE STANDPOINT. THEREFORE, BY TELEGRAM OF JUNE 15, 1971, AWARD WAS MADE TO ZAIRE ASSOCIATES, INC.

YOU HAVE PROTESTED TO OUR OFFICE THAT "SINCE WE HAVE NO REASON TO BELIEVE THAT OUR PROPOSAL WAS NOT RESPONSIVE TO THE ADVERTISED REQUIREMENTS, AND SINCE OUR BID WAS SUBSTANTIALLY LOWER THAN THE WINNING BID, WE BELIEVE THAT OUR COMPANY SHOULD HAVE BEEN AWARDED THE ABOVE CONTRACT." THE RECORD DISCLOSES THAT ONLY ONE FIRM OF THE 23 PROPOSERS RESPONDING TO THE REGION II PORTION OF THE SOLICITATION RECEIVED A LOWER TECHNICAL RATING THAN YOUR FIRM. MORE SPECIFICALLY, THE AWARDEE SCORED 80 POINTS OUT OF A POSSIBLE 100, WHILE YOUR FIRM ATTAINED A RATING OF ONLY 50. YOU CORRECTLY STATE THAT YOUR FIRM SUBMITTED A LOWER EVALUATED PRICE THAN THE EVENTUAL AWARDEE, $134,776 AS OPPOSED TO $151,541.

SBA JUSTIFIED AN AWARD OF THE CONTRACT TO ZAIRE ASSOCIATES, INC., ON THE BASIS OF DECISIONS OF OUR OFFICE WHICH, QUOTING, FOR EXAMPLE, FROM B- 171580, JUNE 21, 1971, STATE:

"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 THAT LANGUAGE, THE PROTEST IS DENIED.