B-173921, FEB 8, 1972

B-173921: Feb 8, 1972

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PROTESTANT'S PRIMARY CONTENTION IS CONTRARY TO THE FACT THAT PROOFREADING IS SPECIFICALLY SET FORTH IN THE RFP AS AN EVALUATION CRITERION. THERE WAS NO OBLIGATION TO CONDUCT FURTHER NEGOTIATIONS PURSUANT TO FPR 1-3.805-1(A). SINCE A DETERMINATION THAT PROTESTANT WAS OUTSIDE THE COMPETITIVE RANGE APPEARS TO HAVE BEEN WELL WITHIN THE CONTRACTING OFFICER'S DISCRETION. IT IS YOUR CONTENTION THAT THE EVALUATION CRITERIA SET FORTH IN THE RFP WERE NOT FOLLOWED IN MAKING THE AWARD. IT IS YOUR OPINION THAT NLM BASED ITS EVALUATION ON A CAPABILITY TO EDIT MEDICAL TERMS. YOU ADD THAT YOU HAVE FOUND NO REQUIREMENT IN THE RFP FOR THE CONTRACTOR TO DO EDITING. 400 JOURNALS RECEIVED BY NLM EACH YEAR ARE SUITABLE FOR INDEXING.

B-173921, FEB 8, 1972

BID PROTEST - NONRESPONSIBILITY - EVALUATION CRITERIA DECISION DENYING PROTEST OF URBADYNE, INC., AGAINST AWARD OF A CONTRACT TO MELOY LABORATORIES UNDER AN RFP ISSUED BY THE NATIONAL LIBRARY OF MEDICINE, PUBLIC HEALTH SERVICE. PROTESTANT'S PRIMARY CONTENTION IS CONTRARY TO THE FACT THAT PROOFREADING IS SPECIFICALLY SET FORTH IN THE RFP AS AN EVALUATION CRITERION. ADDITION, THE CONTRACT REVIEW BOARD FELT THAT AN EXTENSION OF PERSONNEL AND PRODUCTION TRAINING PERIODS WOULD PRECLUDE THE EFFICIENT MANAGEMENT OF START-UP PROCEDURES. THE TECHNICAL REVIEW BOARD REACHED A SIMILAR CONCLUSION WITH REGARD TO PROTESTANT'S PROPOSED RECRUITMENT OF ALL PERSONNEL EXCEPT THOSE IN MANAGEMENT OR SUPERVISORY POSITIONS. IN VIEW OF THESE FACTS, THERE WAS NO OBLIGATION TO CONDUCT FURTHER NEGOTIATIONS PURSUANT TO FPR 1-3.805-1(A), SINCE A DETERMINATION THAT PROTESTANT WAS OUTSIDE THE COMPETITIVE RANGE APPEARS TO HAVE BEEN WELL WITHIN THE CONTRACTING OFFICER'S DISCRETION. ACCORDINGLY, THE PROTEST MUST BE DENIED.

TO URBADYNE, INC.:

WE REFER TO YOUR PROTEST AGAINST AWARD OF A CONTRACT TO ANOTHER FIRM UNDER REQUEST FOR PROPOSAL NO. 72-101, ISSUED BY THE NATIONAL LIBRARY OF MEDICINE (NLM), PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE.

IT IS YOUR CONTENTION THAT THE EVALUATION CRITERIA SET FORTH IN THE RFP WERE NOT FOLLOWED IN MAKING THE AWARD. YOU STATE THAT AS A RESULT OF A DEBRIEFING, IT IS YOUR OPINION THAT NLM BASED ITS EVALUATION ON A CAPABILITY TO EDIT MEDICAL TERMS. YOU ADD THAT YOU HAVE FOUND NO REQUIREMENT IN THE RFP FOR THE CONTRACTOR TO DO EDITING.

THE RFP CALLED FOR PROPOSALS FOR PROVIDING KEYBOARDING SERVICES FOR A PERIOD OF ONE YEAR TO PROVIDE MACHINE-READABLE INPUT TO THE MEDICAL LITERATURE ANALYSIS AND RETRIEVAL SYSTEM. OVER 220,000 ARTICLES FROM APPROXIMATELY 20,000 ISSUES OF MORE THAN 2,400 JOURNALS RECEIVED BY NLM EACH YEAR ARE SUITABLE FOR INDEXING. THE RFP CALLED FOR THE CONTRACTOR TO PICK UP A SHIPMENT OF 7,000 CITATIONS FOR START-UP PURPOSES AND THEREAFTER TO PICK UP AN AVERAGE OF 5,000 CITATIONS PER WEEK. THE RFP STATED THAT NLM WILL PROVIDE ONE WEEK OF TRAINING OF THREE CONTRACTOR PERSONNEL IN NLM PROCEDURES FOR THE KEYBOARDING OF CITATION INPUT.

THE CRITERIA FOR EVALUATION OF PROPOSALS WERE SET FORTH IN PARAGRAPH 3.8 OF THE RFP AS FOLLOWS:

"3.8 CRITERIA FOR EVALUATION OF PROPOSALS

1. GENERAL BACKGROUND, EXPERIENCE, AND QUALIFICATION OF THE PROPOSED CONTRACTOR.

2. QUALIFICATIONS AND RECENT EXPERIENCE WITH SIMILAR EQUIPMENT AND/OR SIMILAR APPLICATION OF THE FIRM/PERSONNEL WHO WILL BE ASSIGNED FOR DIRECT WORK ON THIS PROJECT.

A. SIMILAR EXPERIENCE OR APPLICATIONS ARE DEFINED AS:

1) ENCODING OR ENCODED DOCUMENTS

2) BIBLIOGRAPHIC DATA

3) VARIABLE LENGTH FIELDS

4) LANGUAGES AND DIALIACS AND TRANSLITERATIONS

5)NON-MACHINE EDITING (PROOFREADING) FOR SUBSEQUENT CORRECTIONS.

3. EVIDENCE OF GOOD ORGANIZATIONAL AND MANAGEMENT PRACTICE.

4. BIDDERS RESPONSIVENESS TO TERMS, CONDITIONS AND TIME OF PERFORMANCE.

5. DISPLAY OF SOLVENCY OF THE PROPOSED CONTRACTOR.

6. PRICE."

THE REPORT FROM THE CONTRACT MANAGEMENT OFFICER, NLM, STATES THAT RELIABILITY AND ABILITY TO MEET THE TIGHT SCHEDULE WERE STRESSED AS IMPORTANT FACTORS IN THE FINAL SELECTION AT A PREPROPOSAL CONFERENCE WHICH YOUR FIRM DID NOT ATTEND. THE IMPORTANCE OF THESE FACTORS WAS RELATED TO YOU, HOWEVER, WHEN YOUR FIRM CALLED SEVERAL DAYS LATER AND ASKED FOR A VERBAL SUMMARY OF WHAT HAD BEEN PRESENTED AT THE CONFERENCE.

EIGHT PROPOSALS WERE RECEIVED IN RESPONSE TO THE SOLICITATION. A CHECK WAS MADE OF ALL THE PREVIOUS WORK LISTED UNDER "EXPERIENCE" IN THOSE PROPOSALS. IN YOUR CASE, THE ONLY EXPERIENCE LISTED WAS A PROJECT FOR THE PATENT OFFICE. THE PROJECT OFFICER AT THE PATENT OFFICE ADVISED THAT YOUR FIRM HAD CONSIDERABLE DIFFICULTY GETTING STARTED AND THERE WAS A FIVE- MONTH DELAY IN COMMENCEMENT OF THE PROJECT. THIS INFORMATION WAS FURNISHED TO THE TECHNICAL REVIEW BOARD ALONG WITH THE RESULTS OF THE INQUIRIES ABOUT THE OTHER OFFERORS' EXPERIENCE.

ALTHOUGH THE INFORMATION RECEIVED FROM THE PATENT OFFICE RAISED SOME DOUBTS AS TO THE ABILITY OF YOUR FIRM TO MANAGE THE START-UP PROCEDURES IN A TIMELY AND EFFICIENT MANNER, THE CONTRACT REVIEW BOARD FOUND THAT YOUR PROPOSAL ITSELF LED TO THE SAME CONCLUSION. THE RFP STATED THAT ONE WEEK OF TRAINING WOULD BE PROVIDED, WHILE YOUR PROPOSAL STATED THAT TWO WEEKS OF TRAINING WOULD BE REQUIRED AT NLM. IN ADDITION, YOU PROPOSED AN ADDITIONAL FIVE WEEKS OF PRODUCTION TRAINING AND STATED THAT SUSTAINED ACCEPTABLE PRODUCTION RATES WOULD NOT BE MET UNTIL THE FIFTH WEEK OF PRODUCTION. THE PROPOSED MILESTONE CHART ON PAGE 17 OF YOUR PROPOSAL SHOWED THAT YOUR PRODUCTION WOULD REACH A RATE OF 1,000 PER DAY AT THE END OF SEVEN WEEKS AFTER AWARD AND WOULD LEVEL OFF AT AROUND 1,100 PER DAY. THE TECHNICAL REVIEW BOARD FOUND A SECOND MAJOR DEFICIENCY IN YOUR PROPOSAL IN THAT YOU PROPOSED TO RECRUIT ALL PERSONNEL FOR THE PROJECT EXCEPT THOSE IN MANAGERIAL OR SUPERVISORY POSITIONS. THE BOARD FELT THAT USING ALL NEW PRODUCTION PERSONNEL WOULD ADVERSELY AFFECT THE NONMACHINE EDITING (PROOFREADING) PORTION OF THE WORK.

THE CONTRACTING OFFICER STATES THAT BOTH OF THESE POINTS WERE COVERED AT THE DEBRIEFING WHICH YOU ATTENDED. SINCE THERE WAS CONSIDERABLE DISCUSSION AT THE DEBRIEFING CONCERNING NONMACHINE EDITING AND THE MAJOR PORTION OF YOUR PROTEST RELATED TO YOUR ASSERTION THAT EDITING IS NOT REQUIRED BY THE RFP, IT IS THE OPINION OF THE CONTRACTING OFFICER THAT YOU WERE UNDER THE IMPRESSION THAT LIBRARY PERSONNEL WERE TALKING ABOUT EDITING FOR CITATION CONTENT. THE CONTRACTING OFFICER AGREES THAT EDITING FOR CITATION CONTENT IS BEYOND THE SCOPE OF THE CONTRACT. HOWEVER, CONTRARY TO YOUR ASSERTION, NONMACHINE EDITING (PROOFREADING) IS SET FORTH IN THE RFP AS AN EVALUATION CRITERION IN ITEM 2.A.5, PARAGRAPH 3.8, AND PROCEDURES FOR PERFORMING THIS FUNCTION ARE DESCRIBED IN APPENDIX C.

THE REPORT RELATES THAT THE STATED EVALUATION CRITERIA WERE USED IN A TECHNICAL EVALUATION OF THE EIGHT PROPOSALS RECEIVED. THREE PROPOSALS, WERE EVALUATED AS BEING CLEARLY TECHNICALLY SUPERIOR TO THE OTHER FIVE PROPOSALS WHICH WERE CONSIDERED TO BE UNACCEPTABLE AND NOT CAPABLE OF BEING MADE ACCEPTABLE THROUGH NEGOTIATIONS. FIVE OFFERORS, INCLUDING YOUR FIRM, WERE ELIMINATED FROM FURTHER CONSIDERATION SINCE THEIR OFFERS WERE NOT WITHIN THE COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED, ESTABLISHED BY THE OFFERS OF THE FIRMS SUBMITTING THE SUPERIOR PROPOSALS. A FINAL ROUND OF NEGOTIATION WAS CONDUCTED WITH THESE THREE FIRMS, AND THE CONTRACT WAS AWARDED TO MELOY LABORATORIES, WHOSE PRICE WAS LOWEST AFTER NEGOTIATIONS. WORK UNDER THE CONTRACT IS PROGRESSING ON SCHEDULE.

FPR 1-3.805-1(A) PROVIDES THAT WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMITTED PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED. ALTHOUGH WE HAVE HELD THAT A PROPOSAL MUST BE CONSIDERED TO BE WITHIN A COMPETITIVE RANGE UNLESS IT IS SO TECHNICALLY INFERIOR OR OUT OF LINE WITH REGARD TO PRICE THAT MEANINGFUL NEGOTIATIONS ARE PRECLUDED, WE HAVE ALSO RECOGNIZED THAT A REASONABLE DEGREE OF ADMINISTRATIVE DISCRETION IS PERMISSIBLE WITH RESPECT TO TECHNICAL CONSIDERATIONS IN DETERMINING WHETHER A PROPOSAL IS WITHIN A COMPETITIVE RANGE. 48 COMP. GEN. 314 (1968). WE WILL NOT DISTURB SUCH ADMINISTRATIVE DETERMINATION IN THE ABSENCE OF A CLEAR SHOWING OF ARBITRARY ABUSE OF DISCRETION. B-169773, OCTOBER 9, 1970.

IN THE PRESENT CASE, WE HAVE CAREFULLY EXAMINED YOUR PROPOSAL IN THE LIGHT OF THE ABOVE PRINCIPLES. IT WOULD APPEAR THAT THE TWO MAJOR AREAS IN WHICH THE TECHNICAL REVIEW BOARD HAD BASIC DOUBTS ABOUT YOUR ABILITY TO PERFORM IN ACCORDANCE WITH THE RFP AROSE FROM A SINGLE DEFICIENCY IN YOUR PROPOSAL. YOU PROPOSED TO RECRUIT PERSONNEL TO PERFORM THE EDITING (PROOFREADING) FUNCTION. THIS FACT MADE IT IMPOSSIBLE FOR THE TECHNICAL EVALUATION BOARD TO EVALUATE THE QUALIFICATIONS AND EXPERIENCE OF PERSONNEL TO BE ASSIGNED FOR DIRECT WORK ON THIS MATTER, AS CALLED FOR IN ITEM 2.A.5 OF THE EVALUATION CRITERIA SET FORTH IN PARAGRAPH 3.8 OF THE RFP. IT WOULD ALSO APPEAR THAT YOUR PROPOSED RECRUITMENT LED TO THE EXTENDED TRAINING PERIOD SET FORTH IN THE CHART ON PAGE 17 OF YOUR PROPOSAL, WHICH SHOWS THAT YOU WOULD NOT ACHIEVE THE REQUIRED PRODUCTION RATE OF 5,000 CITATIONS PER WEEK UNTIL THE END OF THE SEVENTH WEEK AFTER AWARD. WITH A START-UP DELIVERY OF 7,000 CITATIONS AND 5,000 ADDITIONAL CITATIONS DELIVERED EACH WEEK, IT IS CLEAR THAT A SUBSTANTIAL BACKLOG OF WORK WOULD HAVE DEVELOPED BEFORE YOUR PRODUCTION REACHED A RATE EQUALLING THE INCOMING DELIVERIES OF CITATIONS. MOREOVER, WITH YOUR PRODUCTION RATE SHOWN AS LEVELING OFF AT APPROXIMATELY 5,500 PER WEEK, THERE WOULD BE NO WAY FOR YOU TO REDUCE THE BACKLOG OF CITATIONS AND GET ON A CURRENT BASIS UNTIL NEAR THE END OF THE CONTRACT PERIOD OF ONE YEAR.

THE RECORD BEFORE US CONTAINS NOTHING TO INDICATE THAT YOU COULD HANDLE THE WORK SPECIFIED IN THE RFP BY ANY MEANS OTHER THAN RECRUITING THE PERSONNEL TO BE ASSIGNED FOR DIRECT WORK ON THE PROJECT, NOR DOES IT APPEAR THAT NEGOTIATION WOULD CURE THIS DEFECT. IN VIEW THEREOF, WE DO NOT BELIEVE THE RECORD ESTABLISHES AN ARBITRARY ABUSE OF DISCRETION SO AS TO PROVIDE THIS OFFICE WITH A PROPER BASIS FOR DISTURBING THE ADMINISTRATIVE DETERMINATION THAT YOUR OFFER WAS NOT WITHIN A COMPETITIVE RANGE AND THAT FURTHER NEGOTIATION WITH YOUR FIRM WAS NOT REQUIRED PURSUANT TO FPR 1-3.805-1(A).

ACCORDINGLY, YOUR PROTEST IS DENIED.