B-173333, AUG 26, 1971

B-173333: Aug 26, 1971

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EVEN IF PROTESTANT'S CONTENTION THAT IT WAS INFORMED ON SEVERAL OCCASIONS BY PROCUREMENT PERSONNEL THAT ITS PROPOSAL WAS TECHNICALLY ACCEPTABLE IS ACCURATE. INC.: REFERENCE IS MADE TO YOUR LETTER OF JUNE 18. THE SUBJECT CONTRACT IS A COST-REIMBURSEMENT TYPE AND IS FOR THE ESTIMATED PRICE OF $606. YOU STATE THAT THE FINAL PRICE OF THE AWARDED CONTRACT WAS $178. 426 MORE THAN THE PRICE OF YOUR PROPOSAL AND THAT YOUR CONCERN WAS ADVISED ON SEVERAL OCCASIONS BY PROCUREMENT PERSONNEL THAT YOUR PROPOSAL WAS TECHNICALLY ACCEPTABLE. YOU ALSO SAY THAT IT WAS INDICATED TO YOU THAT YOUR PRICE WAS NOT IN A COMPETITIVE RANGE THAT WOULD PERMIT NEGOTIATIONS. SINCE NEGOTIATIONS WERE NOT CONDUCTED WITH YOUR FIRM.

B-173333, AUG 26, 1971

BID PROTEST - NEGOTIATIONS - TECHNICAL ACCEPTABILITY DENYING PROTEST OF OMEGA-T SYSTEMS, INC. AGAINST THE AWARD OF A CONTRACT TO THE MINE SAFETY APPLIANCES COMPANY UNDER AN RFP ISSUED BY THE BUREAU OF MINES FOR DESIGN AND INSTALLATION OF A COMMUNICATIONS SYSTEM. EVEN IF PROTESTANT'S CONTENTION THAT IT WAS INFORMED ON SEVERAL OCCASIONS BY PROCUREMENT PERSONNEL THAT ITS PROPOSAL WAS TECHNICALLY ACCEPTABLE IS ACCURATE, THE IMPARTING OF SUCH INFORMATION COULD NOT AFFECT THE ACTUAL ACCEPTABILITY OF THE PROPOSAL.

TO OMEGA-T SYSTEMS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 18, 1971, PROTESTING THE AWARD OF A CONTRACT TO THE MINE SAFETY APPLIANCES COMPANY BY THE DEPARTMENT OF THE INTERIOR, BUREAU OF MINES, UNDER REQUEST FOR PROPOSALS (RFP) NO. H0110845, ISSUED ON DECEMBER 22, 1970, FOR THE DESIGN, FABRICATION, AND INSTALLATION OF A SURVEILLANCE AND COMMUNICATIONS SYSTEM TO BE INSTALLED AT THE BUREAU'S MINING AND SAFETY RESEARCH CENTER COAL MINE AT BRUCETON, PENNSYLVANIA. THE SUBJECT CONTRACT IS A COST-REIMBURSEMENT TYPE AND IS FOR THE ESTIMATED PRICE OF $606,438.

YOU STATE THAT THE FINAL PRICE OF THE AWARDED CONTRACT WAS $178,426 MORE THAN THE PRICE OF YOUR PROPOSAL AND THAT YOUR CONCERN WAS ADVISED ON SEVERAL OCCASIONS BY PROCUREMENT PERSONNEL THAT YOUR PROPOSAL WAS TECHNICALLY ACCEPTABLE. YOU ALSO SAY THAT IT WAS INDICATED TO YOU THAT YOUR PRICE WAS NOT IN A COMPETITIVE RANGE THAT WOULD PERMIT NEGOTIATIONS. SINCE NEGOTIATIONS WERE NOT CONDUCTED WITH YOUR FIRM, YOU REQUEST THAT THE CONTRACT AWARD BE WITHDRAWN AND THAT NEGOTIATIONS BE REOPENED TO INCLUDE OMEGA-T OR THAT THE PROCUREMENT BE CANCELLED AND RECOMPETED.

IN A REPORT DATED JULY 22, 1971, THE DEPARTMENT OF THE INTERIOR RESPONDS TO YOUR STATEMENTS REGARDING THE INFORMATION GIVEN TO YOUR CONCERN BY THE PROCUREMENT OFFICE DURING THE EVALUATION CYCLE AS FOLLOWS:

"2. TECHNICAL ACCEPTABILITY: OMEGA-T CONTENDS THAT THERE WAS 'EXPRESSED ACCEPTABILITY' OF ITS PROPOSAL DURING THE EVALUATION CYCLE, AND THAT IT HAD BEEN ADVISED ON SEVERAL OCCASIONS THAT THE PROPOSAL WAS, INDEED, ACCEPTABLE. UNDER OUR PROCUREMENT PROCEDURES, NO INFORMATION IS AVAILABLE TO ANY OFFERORS PRIOR TO AWARD. THIS IS SPELLED OUT IN THE RFP, WHICH STATES, 'NO PREAWARD INFORMATION CONCERNING THE STATUS OF THIS PROCUREMENT WILL BE FURNISHED AFTER RECEIPT OF PROPOSALS OTHER THAN TO ORGANIZATIONS CONTACTED FOR NEGOTIATIONS.' AS A MATTER OF FACT, THE ONLY INFORMATION GIVEN TO OMEGA-T BY THE PROCUREMENT OFFICE WAS THAT THE PROCUREMENT WAS IN TECHNICAL EVALUATION AND THAT NO AWARD HAD BEEN MADE.

"3. PRICE OUT OF COMPETITIVE RANGE: THE ONLY TYPE OF INFORMATION GIVEN TO ANY UNSUCCESSFUL OFFEROR PRIOR TO AWARD IS THAT INDICATED IN 2. ABOVE. BECAUSE OMEGA-T WAS NOT CONTACTED FOR NEGOTIATION, COST WAS NEVER DISCUSSED WITH THAT FIRM. UNDER NO CIRCUMSTANCES IS ANY OFFEROR TOLD THAT HIS PRICE IS NOT IN THE COMPETITIVE RANGE, PARTICULARLY WHEN SUCH A STATEMENT WOULD BE AN UNTRUTH."

IT IS APPARENT THAT YOU AND THE AGENCY HAVE DIFFERENT ACCOUNTS AS TO THE INFORMATION GIVEN YOUR FIRM. HOWEVER, WE DO NOT CONSIDER A RESOLUTION OF THE MATTER ESSENTIAL TO THE DISPOSITION OF YOUR PROTEST SINCE, EVEN IF YOUR VERSION WAS ACCEPTED, THE IMPARTING OF SUCH INFORMATION TO YOUR FIRM COULD NOT AFFECT THE ACTUAL ACCEPTABILITY OR NONACCEPTABILITY OF YOUR PROPOSAL. IN THIS REGARD, THE DEPARTMENT STATES THAT YOUR PROPOSAL WAS CONSIDERED TO BE TECHNICALLY UNACCEPTABLE FOR THE FOLLOWING REASONS:

"SOME AREAS OF THE PROPOSED INSTALLATION WERE QUESTIONABLE. FOR EXAMPLE, THERMAL CONDUCTIVITY MEASUREMENTS WERE TO BE USED TO MEASURE HYDROGEN CONCENTRATION, BUT THERE WAS NO PROVISION FOR REMOVING OTHER CONTAMINANT GASES. IF METHANE, CARBON DIOXIDE, OR WATER VAPOR WERE PRESENT, A THERMAL CONDUCTIVITY CELL WOULD RESPOND TO THESE GASES ALSO, THUS GIVING FALSE VALUES FOR THE CONCENTRATION OF HYDROGEN.

"THE MANNER IN WHICH MEASUREMENTS AND DATA TRANSMISSION (AS WELL AS COMMUNICATION) WERE TO BE ACCOMPLISHED WAS DESCRIBED IN DETAIL BUT THERE WAS AN INCONSISTENCY. MENTION WAS MADE OF DATA BEING INTERRUPTED BY VOICE COMMUNICATION, AND YET OMEGA-T STATED IN ANOTHER PORTION OF ITS PROPOSAL THAT SEPARATE LINES WERE TO BE USED FOR VOICE COMMUNICATION. IF SEPARATE LINES WERE TO BE USED, THEN THERE WOULD BE NO DATA INTERRUPT.

"THE USE OF INFRARED GAS ANALYZERS FOR CH4 AND CO IS QUESTIONABLE. SINCE TWO OF THE SPECIFIED SENSOR STATIONS ARE TO BE LOCATED IN EXPLOSION TEST ZONES, THESE ANALYZERS WOULD BE SUBJECT TO CONSIDERABLE SHOCK AND MAY NOT MAINTAIN THEIR CALIBRATION.

"GREAT EMPHASIS WAS PLACED UPON THE METHOD OF DATA TRANSMISSION, INTERROGATING STATIONS, AND DISPLAYING MEASUREMENTS AND FAULTS, BUT THERE APPARENTLY WAS LITTLE STUDY DONE ON THE SENSORS TO BE USED FOR THE MEASUREMENTS TO BE ACCOMPLISHED. THE IMPRESSION WAS THAT THE OFFEROR HAS ASSUMED THAT 'OFF-THE-SHELF' SENSORS COULD BE USED WITH RELATIVELY LITTLE MODIFICATION. THE TECHNICAL EVALUATION COMMITTEE CONCLUDED THAT THERE WOULD NOT BE SUFFICIENTLY EXPERIENCED PERSONNEL AVAILABLE TO ADAPT THE SENSORS FOR USE IN MINES, AS REQUIRED BY THE RFP."

IN ADDITION, YOUR PROPOSAL, AFTER BEING FULLY EVALUATED IN ACCORDANCE WITH THE CRITERIA SET OUT IN THE SOLICITATION, RECEIVED A SCORE OF ONLY 533 OUT OF A POSSIBLE 1000, WHEREAS MINE SAFETY APPLIANCES COMPANY SCORED 908 AND WAS RATED CLEARLY SUPERIOR TO ALL OTHERS IN EVERY CATEGORY.

FEDERAL PROCUREMENT REGULATIONS (FPR) 1-3.805.1(A) REQUIRES THAT AFTER RECEIPT OF INITIAL PROPOSALS, WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED. "OTHER FACTORS" HAS BEEN HELD TO INCLUDE THE TECHNICAL ACCEPTABILITY OF PROPOSALS. COMP. GEN. 606 (1967). PARTICULARLY WITH RESPECT TO TECHNICAL CONSIDERATIONS, WE RECOGNIZE THAT A REASONABLE DEGREE OF ADMINISTRATIVE DISCRETION IS PERMISSIBLE IN DETERMINING WHETHER A PROPOSAL IS WITHIN THE COMPETITIVE RANGE. B-163024, AUGUST 27, 1968. ALSO, IT IS OUR POLICY NOT TO QUESTION SUCH ADMINISTRATIVE DETERMINATIONS IN THE ABSENCE OF A CLEAR SHOWING OF ARBITRARY ABUSE OF DISCRETION. 48 COMP. GEN. 314 (1968).

IN THE INSTANT CASE THE PROCURING ACTIVITY DETERMINED THAT YOUR OFFER WAS TECHNICALLY UNACCEPTABLE AND OUR REVIEW OF THE RECORD SHOWS THAT YOUR PROPOSAL WAS EVALUATED IN A MANNER CONSISTENT WITH THE EVALUATION OF THE PROPOSALS OF THE OTHER OFFERORS. WE DO NOT CONSIDER THAT YOU HAVE PRESENTED A CLEAR SHOWING THAT THE AGENCY WAS ARBITRARY IN REJECTING YOUR PROPOSAL, AND SINCE WE DO NOT POSSESS THE DEGREE OF TECHNICAL COMPETENCE TO CATEGORICALLY STATE THAT YOUR PROPOSAL WAS WITHIN A COMPETITIVE RANGE OF THE OTHER PROPOSALS, OR THAT THE DEFICIENCIES IN YOUR PROPOSAL WERE MERELY MINOR MATTERS WHICH SHOULD HAVE BEEN RESOLVED IN NEGOTIATIONS, WE WILL NOT OBJECT TO THE AGENCY'S DECISION NOT TO CONDUCT NEGOTIATIONS WITH YOUR FIRM. SEE B-168190, FEBRUARY 24, 1970, AND B-171030, JUNE 22, 1971.

IN THIS CONNECTION, PRICE WAS NOT A CONTROLLING FACTOR FOR AWARD OF THE SUBJECT CONTRACT, PARTICULARLY SINCE THE CONTRACT WAS TO BE MADE ON A COST -PLUS-FIXED-FEE BASIS AND THE AMOUNTS STATED IN THE PROPOSALS WERE MERELY ESTIMATES OF COST. SEE FPR 1-3.805-2 AND B-167573, SEPTEMBER 11, 1969.

IN VIEW OF THE FOREGOING, WE SEE NO LEGAL BASIS ON WHICH THIS OFFICE COULD REQUIRE CANCELLATION OF THE SUBJECT CONTRACT AND YOUR REQUEST THAT WE DO SO MUST THEREFORE BE DENIED.