B-173716, DEC 7, 1971

B-173716: Dec 7, 1971

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FAILURE TO NEGOTIATE FURTHER BECAUSE INSECT CONTROL'S PROPOSAL WAS "INFORMATIONALLY DEFICIENT" WAS IMPROPER. PARAGRAPH 9 OF THE GENERAL INSTRUCTIONS TO THE RFP WHICH RESTRICTED NEGOTIATIONS WAS INCONSISTENT WITH THE REQUIREMENTS OF FPR 1-3.805-1(A). RUCKELSHAUS: FURTHER REFERENCE IS MADE TO THE PROTEST OF INSECT CONTROL & RESEARCH. WHICH WAS THE SUBJECT OF REPORTS DATED AUGUST 31 AND OCTOBER 8. WE WILL LIMIT OUR REVIEW TO THE PROCEDURES TAKEN UNDER THAT PROCUREMENT. THE STATEMENT OF WORK SECTION OF THE SUBJECT RFP PROVIDED GENERAL INFORMATION REGARDING THE SUBJECT MATTER OF THE PROCUREMENT AS FOLLOWS: "THIS PARTICULAR CASE STUDY IS CONCERNED WITH THE URBAN USE OF PESTICIDES FOR VECTOR CONTROL.

B-173716, DEC 7, 1971

CONTRACT NEGOTIATIONS - UNREASONABLE RESTRICTIONS DECISION REGARDING THE PROTEST AGAINST THE FAILURE OF THE CONTRACTS MANAGEMENT DIVISION OF THE ENVIRONMENTAL PROTECTION AGENCY TO CONDUCT NEGOTIATIONS WITH INSECT CONTROL & RESEARCH, INC., UNDER AN RFP ISSUED BY THAT AGENCY FOR A STUDY ON THE URBAN USE OF PESTICIDES FOR VECTOR CONTROL. IN ORDER TO PRECLUDE FURTHER NEGOTIATIONS IN THIS TYPE PROCUREMENT, A PROPOSAL MUST BE REGARDED AS BEING SO DEFICIENT OR OUT OF LINE IN PRICE AS TO RENDER FURTHER DISCUSSION MEANINGLESS. IN THIS CASE, FAILURE TO NEGOTIATE FURTHER BECAUSE INSECT CONTROL'S PROPOSAL WAS "INFORMATIONALLY DEFICIENT" WAS IMPROPER. FURTHER, PARAGRAPH 9 OF THE GENERAL INSTRUCTIONS TO THE RFP WHICH RESTRICTED NEGOTIATIONS WAS INCONSISTENT WITH THE REQUIREMENTS OF FPR 1-3.805-1(A).

TO MR. WILLIAM D. RUCKELSHAUS:

FURTHER REFERENCE IS MADE TO THE PROTEST OF INSECT CONTROL & RESEARCH, INC. (INSECT CONTROL), UNDER REQUEST FOR PROPOSALS (RFP) WA 71-570 AND WA 71-571, ISSUED BY THE CONTRACTS MANAGEMENT DIVISION OF THE ENVIRONMENTAL PROTECTION AGENCY ON APRIL 13, 1971, WHICH WAS THE SUBJECT OF REPORTS DATED AUGUST 31 AND OCTOBER 8, 1971, FROM THE ASSISTANT ADMINISTRATOR FOR PLANNING AND MANAGEMENT. SINCE THE PROTESTING CONCERN HAS CONCENTRATED ITS PROTEST ON RFP WA 71-570, WE WILL LIMIT OUR REVIEW TO THE PROCEDURES TAKEN UNDER THAT PROCUREMENT.

THE STATEMENT OF WORK SECTION OF THE SUBJECT RFP PROVIDED GENERAL INFORMATION REGARDING THE SUBJECT MATTER OF THE PROCUREMENT AS FOLLOWS:

"THIS PARTICULAR CASE STUDY IS CONCERNED WITH THE URBAN USE OF PESTICIDES FOR VECTOR CONTROL, SUCH AS THAT IN THE NORTHEASTERN UNITED STATES. SUCH LANDS MOSQUITO ABATEMENT PROGRAMS ARE CONDUCTED FOR THE CONTROL OF DISEASE AND NUISANCE AND TO ENHANCE RECREATIONAL AREAS. IN THIS REGION TREATMENT PROGRAMS INCLUDE MANY VALUABLE ESTUARINE AND MARSH AREAS WITHOUT DUE CONSIDERATION OF POSSIBLE DAMAGE TO THE AQUATIC ENVIRONMENT. IT IS IN THESE IMPORTANT ESTUARINE AREAS THAT ALMOST ALL AQUATIC ORGANISMS SPEND SOME PART OF THEIR LIFE CYCLE. IN ADDITION, MOST SALT MARSHES ARE LOCATED ALONG THE FLYWAYS OF MIGRATORY WATERFOWL. DAMAGE TO THE COMMERCIAL FISHING INDUSTRY AND THE PHOTOSYNTHETIC CAPABILITY OF AQUATIC PLANTS IS ALSO OF CONCERN IN THIS AREA WHICH EXHIBITS CHARACTERISTIC PROBLEMS OF APPLICATION TECHNIQUES AND ADVERSE ENVIRONMENTAL IMPACT."

THE RFP ALSO CONTAINED THE FOLLOWING PERTINENT PROVISIONS:

"DETAILED:

"THIS STUDY WILL PROVIDE, USING ALL AVAILABLE INFORMATION, AN IN DEPTH EVALUATION OF THE IMPACT ON THE NATURAL ENVIRONMENT OF PESTICIDES USED FOR CONTROL OF SPECIFIC PESTS IN A PARTICULAR AREA. IN HIS PROPOSAL, EACH BIDDER WILL SUGGEST ONE OR MORE GEOGRAPHIC AREAS OF STUDY BASED ON HIS OWN KNOWLEDGE, AND WILL PROVIDE DOCUMENTATION FOR HIS RECOMMENDATION. CHOICE OF THE STUDY AREA WILL BE MADE BY WQO BASED ON THE AMOUNT OF INFORMATION AVAILABLE TO OBTAIN A COMPLETE CASE STUDY AND ON THE VALUE OF THE STUDY AREA IN TERMS OF ILLUSTRATING A PARTICULAR KIND OF PESTICIDE PROBLEM.

"A FINAL REPORT WILL BE SUBMITTED FOLLOWING THIS OUTLINE AND WILL INCLUDE QUANTITATIVE INFORMATION ON ALL SUBJECTS INDICATED:

"A. INVENTORY OF USES.

"B. APPLICATION TECHNIQUES AND TYPE OF PESTICIDAL MATERIALS BEING USED.

"C. ROUTE OF PESTICIDES INTO THE WATER ENVIRONMENT.

"D. IMPACT OF PESTICIDE POLLUTION ON THE WATER ENVIRONMENT.

"E. DEGRADATION OF PESTICIDES AND METABOLITES IN THE WATER ENVIRONMENT.

"F. APPLICABLE REGULATIONS AND LAWS GOVERNING PESTICIDES USED.

"G. ALTERNATIVES USED IN AREA AND DEGREE OF CONTROL.

"GENERAL INSTRUCTIONS

9. THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY OR ALL PROPOSALS RECEIVED BY THIS REQUEST, OR TO NEGOTIATE SEPARATELY WITH ANY COMPANY WHEN SUCH ACTION SHALL BE CONSIDERED IN THE BEST INTEREST OF THE GOVERNMENT. NOTICE IS ALSO GIVEN OF THE POSSIBILITY THAT AN AWARD MAY BE MADE WITHOUT DISCUSSION OR AFTER LIMITED NEGOTIATIONS. IT IS THEREFORE EMPHASIZED THAT ALL PROPOSALS SHOULD BE SUBMITTED INITIALLY ON THE MOST FAVORABLE TERMS THAT THE OFFEROR CAN SUBMIT.

"EVALUATION CRITERIA

MAXIMUM - 50

A. TECHNICAL PROGRAM DEVELOPMENT - WEIGHT: MINIMUM - 25

THIS EVALUATION WILL BE BASED ON THE ACCURACY WITH WHICH THE BIDDER TRANSLATES THE STATEMENT OF WORK INTO STEPS LEADING TO A SATISFACTORY FINAL PRODUCT. KEY POINTS IN THE EVALUATION WILL BE THE DOCUMENTATION OF RECOMMENDED CASE STUDY AREAS AND PROCEDURES FOR COLLECTING INFORMATION.

MAXIMUM - 35

B. PROJECT PERSONNEL - WEIGHT: MINIMUM - 15

THE ABILITY AND COMPETENCE OF THE TECHNICAL PERSONNEL ASSIGNED TO THIS PROJECT WILL BE JUDGED. THIS EVALUATION WILL BE BASED ON EDUCATION, BACKGROUND AND EXPERIENCE IN SIMILAR PROJECTS, PERCENTAGE OF TIME TO BE DEVOTED TO THE PROJECT, STATUS WITHIN THE ORGANIZATION, AND NATURE OF ANY CONSULTANTS PROPOSED FOR USE DURING THE CONTRACT.

MAXIMUM - 15

"C. ORGANIZATION'S EXPERIENCE - WEIGHT: MINIMUM - 5

THE ABILITY AND COMPETENCE OF MANAGEMENT PERSONNEL ASSIGNED TO THIS PROJECT WILL BE JUDGED, ALONG WITH THE OFFEROR'S PAST PERFORMANCE AND EXPERIENCE IN SIMILAR PROJECTS AND FACILITIES AVAILABLE TO CARRY OUT THE PROPOSED PROJECT PLAN. IN ADDITION, THE ADEQUACY OF THE PROPOSED ORGANIZATION TO ACCOMPLISH OBJECTIVES WILL BE JUDGED, ALONG WITH THE FIRM'S APPARENT TECHNICAL CAPABILITY TO PERFORM THE REQUIRED WORK, ABILITY TO MEET SCHEDULE COMMITMENTS AND PERFORMANCE SPECIFICATIONS IN PREVIOUS CONTRACTS, TECHNICAL EXPERIENCE IN THE AREAS REQUIRED FOR THIS WORK, AVAILABILITY OF ADEQUATE FACILITIES, AND THE MANAGEMENT CONTROL PROPOSED."

RESPONSIVE PROPOSALS WERE RECEIVED IN RESPONSE TO THE SUBJECT RFP FROM INSECT CONTROL AND ARTHUR D. LITTLE, INC. INSECT CONTROL PROPOSED TO EXAMINE THE ENVIRONMENTAL EFFECTS OF MOSQUITO CONTROL PROGRAMS ALONG THE DELAWARE COAST AND ARTHUR D. LITTLE, INC. (LITTLE), PROPOSED TO CONDUCT A SIMILAR STUDY WITH RESPECT TO MOSQUITO ABATEMENT PROGRAMS ALONG THE MASSACHUSETTS COAST. SUBSEQUENTLY, THE PROPOSALS WERE ANALYZED BY A REVIEW TEAM CONSISTING OF A BIOLOGIST, AN AGRICULTURAL ECONOMIST AND A SANITARY ENGINEER IN ACCORDANCE WITH A PRE-ESTABLISHED SCORING SYSTEM WHICH REFLECTED THE RELATIVE EMPHASIS OF THE EVALUATION CRITERIA SET FORTH IN THE RFP, AND WERE RATED AS FOLLOWS:

"ARTHUR D. LITTLE, INC. 88

INSECT CONTROL & RESEARCH, INC. 74"

IN THIS REGARD IT IS STATED THAT THE EVALUATION TEAM RATED THE PROPOSAL OF INSECT CONTROL LOWER THAN THAT OF THE OTHER CONCERN BECAUSE THE COMPANY'S TECHNICAL APPROACH DID NOT ADDRESS ITSELF DIRECTLY TO THE URBAN USE OF PESTICIDES, BUT WAS DIRECTED TO MOSQUITO CONTROL ON THE DELAWARE COAST. FURTHERMORE, THE TEAM FOUND CERTAIN OTHER SPECIFIC AREAS WHERE INSECT CONTROL'S PROPOSAL WAS CONSIDERED DEFICIENT AS FOLLOWS:

"INVENTORY OF USES

THE RFP ASKS FOR AN INVENTORY OF USES IN THE PROPOSED STUDY AREA. THEIR PROPOSAL CONTAINED NO INFORMATION REGARDING HOW THE NECESSARY WORK WAS TO BE ACCOMPLISHED OR WHAT RESOURCE LEVEL WOULD BE USED IN DEVELOPING THIS INFORMATION.

"APPLICATION TECHNIQUES AND TYPES OF PESTICIDAL MATERIALS BEING USED

INSUFFICIENT INFORMATION WAS INCLUDED IN THE PROPOSAL REGARDING HOW THEY PLANNED TO ACCOMPLISH THIS. NO MENTION WAS MADE IN THE PROPOSAL ABOUT HOW TECHNIQUES OF APPLICATION COULD MAXIMIZE OR MINIMIZE RUNOFF PROBLEMS. THE PROPOSAL MERELY STATES THAT A 'STUDY WOULD BE MADE OF THE TECHNIQUES OF PESTICIDE APPLICATION AND OF OTHER CONTROL METHODS AND THE EFFECTS OF THESE ON THE ECOSYSTEM. THIS WOULD INCLUDE AERIAL PESTICIDE-SPRAYING, GROUND PESTICIDE-APPLICATION, DRAINAGE AND OTHER MANIPULATION, AND CONTROL OF WATER.'

ROUTE OF PESTICIDES INTO THE WATER ENVIRONMENT

THE PROPOSAL DOES NOT INDICATE WHERE THIS INFORMATION ON THE ENVIRONMENTAL IMPACT OF PESTICIDES WILL BE OBTAINED OTHER THAN A REFERENCE IN AN EARLIER SECTION.

APPLICABLE REGULATIONS AND LAWS GOVERNING PESTICIDES USED

IN DESCRIBING THE PROPOSED WORK ON APPLICABLE PESTICIDE REGULATIONS AND LAWS, THE PROPOSAL IS VERY GENERAL AND NO INFORMATION WAS GIVEN ABOUT HOW THE WORK WOULD BE DONE. ALSO, THE PROPOSAL DID NOT MENTION WHAT LOGICAL SEQUENCE OF DEVELOPMENT WOULD BE USED.

ALTERNATIVES USED IN AREA AND DEGREE OF CONTROL

THE DISCUSSION OF ALTERNATIVES USED IS INADEQUATE, IN THAT IT DOES NOT CONSIDER CULTURAL, GENETIC MANIPULATION, AND MECHANICAL METHODS OF CONTROL."

IN VIEW OF THE ABOVE ANALYSIS, IT WAS DECIDED THAT DISCUSSIONS SHOULD ONLY BE CONDUCTED WITH LITTLE. ON JUNE 15, 1971, NEGOTIATIONS WERE CONDUCTED WITH THAT CONCERN AND, SUBSEQUENTLY, A CONTRACT WAS CONSUMMATED WITH THE COMPANY FOR A COST-PLUS-FIXED-FEE AWARD TOTALING $51,295, OR NEARLY $20,000 DOLLARS MORE THAN INSECT CONTROL PROPOSED FOR THE STUDY.

THEREAFTER, ON JULY 9, 1971, INSECT CONTROL WAS GIVEN A DEBRIEFING CONCERNING THE AWARD OF THE SUBJECT PROCUREMENT. IN THIS REGARD THE CONTRACTING OFFICER STATES THAT THE CONCERN WAS TOLD THAT ITS PROPOSAL WAS SKETCHY AND, IN SOME PARTS, PARAPHRASED THE RFP.

THE ESSENTIAL THRUST OF THE PROTEST SUBMITTED BY INSECT CONTROL INVOLVES THE PROPOSITION THAT IT WAS IMPROPER NOT TO CONDUCT DISCUSSIONS WITH THAT CONCERN, CONSIDERING THE LOWER COST OF ITS PROPOSAL. THE COMPANY ALSO QUESTIONS THE ABSENCE OF AN ENTOMOLOGIST ON THE REVIEW COMMITTEE FOR THE AWARD.

IN REPLY TO THE COMPLAINT THAT AN ETOMOLOGIST SHOULD HAVE BEEN ON THE REVIEW COMMITTEE IT IS THE POSITION OF YOUR AGENCY THAT THE THRUST OF THE STUDY WAS DIRECTED TOWARD THE IMPACT OF PESTICIDES ON ORGANISMS OTHER THAN THOSE TOWARDS WHICH THEIR LETHAL AFFECTS ARE DIRECTED IN APPLICATION; THAT A PARTICULAR CONCERN IN THE STUDY IS WITH THE EFFECTS OF PESTICIDES ON AQUATIC LIFE AFTER THE PESTICIDES ARE CARRIED INTO WATERCOURSES; THAT THE EVALUATION TEAM HERE HAS WIDE EXPERIENCE IN POLLUTION PROBLEMS IN GENERAL AND IN PESTICIDES AND RUNOFF WASTE PROBLEMS IN PARTICULAR; AND THAT AN ETOMOLOGIST, WHOSE QUALIFICATIONS WOULD BE DIRECTED TOWARD THE CHARACTERISTICS OF INSECTS ONLY, COULD CONTRIBUTE LITTLE TOWARD THE EVALUATION OF PROPOSALS FOR A STUDY WHICH IS ONLY INCIDENTALLY RELATED TO INSECTS. WE CONCUR WITH THIS ANALYSIS, AND, THEREFORE, CANNOT CONCLUDE THAT AN ETOMOLOGIST SHOULD HAVE BEEN ON THE REVIEW COMMITTEE FOR THIS PROCUREMENT AS INSECT CONTROL MAINTAINS.

WITH RESPECT TO THE COMPLAINT THAT DISCUSSIONS SHOULD HAVE BEEN CONDUCTED WITH INSECT CONTROL IT IS STATED THAT THE RFP SPECIFICALLY INFORMED OFFERORS THAT THE PROCURING AGENCY RESERVED THE RIGHT TO REJECT ANY OR ALL PROPOSALS RECEIVED IN RESPONSE TO THE RFP, OR TO NEGOTIATE SEPARATELY WITH ANY COMPANY WHEN SUCH ACTION WOULD BE CONSIDERED IN THE BEST INTEREST OF THE GOVERNMENT, AND THAT ALL PROPOSALS SHOULD BE SUBMITTED INITIALLY ON THE MOST FAVORABLE TERMS THAT AN OFFEROR COULD SUBMIT. FURTHERMORE, IT IS STATED THAT THE GOVERNMENT DID NOT CONTEMPLATE EXERCISING THE RIGHT TO DISCUSS TECHNICAL ASPECTS OF ANY PROPOSAL WHICH WAS CONSIDERED TO BE MATERIALLY DEFICIENT OR SUBSTANTIALLY INCOMPLETE, SUCH AS THE PROPOSAL SUBMITTED BY INSECT CONTROL.

IN THIS CONNECTION, IT IS SIGNIFICANT TO NOTE THAT FEDERAL PROCUREMENT REGULATIONS (FPR) 1-3.805-1(A) REQUIRE THAT DISCUSSIONS IN NEGOTIATED PROCUREMENTS BE CONDUCTED WITH ALL OFFERORS WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED, AS FOLLOWS:

"1-3.805-1(A)

(A) AFTER RECEIPT OF INITIAL PROPOSALS, WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMITTED PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED, *** ."

ALTHOUGH THE CONTRACTING OFFICER HAS STATED, FROM A POST-AWARD PERSPECTIVE, THAT INSECT CONTROL'S PROPOSAL WAS UNACCEPTABLE BECAUSE IT WAS MATERIALLY DEFICIENT, SUCH CATEGORIZATION WAS NOT APPLIED TO THE PROPOSAL DURING THE INITIAL EVALUATION BY THE PROCUREMENT PERSONNEL. THUS, THE NARRATIVE ACCOMPANYING THE REVIEW-TEAM'S SCORING INDICATES THAT INSECT CONTROL'S PROPOSAL WAS INITIALLY CONSIDERED TO BE "FAIR" FROM THE STANDPOINT OF THE "CREATIVITY AND COMPLETENESS" OF ITS APPROACH. FURTHERMORE, DISCUSSIONS WERE RECOMMENDED TO BE CONDUCTED WITH ONLY LITTLE, WHOSE PROPOSAL WAS RATED "GOOD" FROM THE STANDPOINT OF "CREATIVITY AND COMPLETENESS", BECAUSE OF THE "TECHNICAL REVIEW AND THE RESULTANT 14 POINT SPREAD IN THE TWO PROPOSALS", AND NOT PURSUANT TO A DETERMINATION THAT INSECT CONTROL'S PROPOSAL WAS OUTSIDE THE COMPETITIVE RANGE FOR THE PROCUREMENT, PRICE AND OTHER FACTORS CONSIDERED. IN VIEW THEREOF, IT WOULD APPEAR THAT THE REFUSAL TO NEGOTIATE WITH INSECT CONTROL WAS NOT PRIMARILY ON THE BASIS THAT ITS PROPOSAL WAS UNACCEPTABLE, BUT BECAUSE IT WAS INFORMATIONALLY DEFICIENT IN CERTAIN AREAS AND LITTLE'S PROPOSAL WAS CONSIDERED SUPERIOR.

IN THIS CONNECTION, IT HAS BEEN OUR OPINION THAT A PROPOSAL MUST BE REGARDED AS BEING WITHIN A COMPETITIVE RANGE UNLESS IT IS SO DEFICIENT OR OUT OF LINE IN PRICE AS TO PRECLUDE FURTHER MEANINGFUL NEGOTIATIONS. THUS, IN B-167291, DECEMBER 1, 1969, WE CONCLUDED THAT THE LOW OFFER SHOULD NOT HAVE BEEN REJECTED IN THE ABSENCE OF AN "AFFIRMATIVE EFFORT TO ASCERTAIN, AND OBTAIN, THE PRECISE INFORMATION NEEDED TO ESTABLISH THE ACCEPTABILITY OR UNACCEPTABILITY" OF THE PROPOSAL." ADDITIONALLY, IN 45 COMP. GEN. 417 (1966) WE CRITICIZED THE FAILURE TO CONDUCT DISCUSSIONS WITH A CONCERN WHEN WE FOUND THAT THE "FAILURE TO NEGOTIATE WITH AAI WAS NOT ON THE BASIS THAT ITS TECHNICAL PROPOSAL WAS UNACCEPTABLE BUT BECAUSE IT WAS DEFICIENT IN TECHNICAL DETAIL." IN VIEW OF THE ABOVE, WE BELIEVE THAT NEGOTIATION SHOULD HAVE BEEN CONDUCTED WITH INSECT CONTROL TO OBTAIN THE INFORMATION NEEDED TO ESTABLISH THE ACCEPTABILITY OR UNACCEPTABILITY OF ITS PROPOSAL.

ADDITIONALLY, WE BELIEVE THAT PARAGRAPH 9 OF THE GENERAL INSTRUCTIONS TO THE RFP, QUOTED ABOVE, WHEREIN THE PROCURING ACTIVITY IMPLICITLY RESERVED AN UNQUALIFIED OPTION TO DENY NEGOTIATION OPPORTUNITY TO AN OFFEROR "WHEN SUCH ACTION SHALL BE CONSIDERED IN THE BEST INTEREST OF THE GOVERNMENT" WAS INCONSISTENT WITH THE STATED REQUIREMENTS OF FPR 1 3.805-1(A), QUOTED ABOVE.

SINCE THE CONTRACTOR WAS REQUIRED TO FURNISH THE FINAL REPORT ON THE STUDY BY SEPTEMBER 30, 1971, WE SEE NO OPPORTUNITY FOR REMEDIAL ACTION IN THE MATTER. HOWEVER, WE RECOMMEND THAT ACTION BE TAKEN TO PREVENT A REPETITION OF THESE CIRCUMSTANCES IN THE FUTURE.

THE FILES FORWARD WITH THE REPORTS ARE RETURNED.