B-175876, JUL 24, 1972

B-175876: Jul 24, 1972

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PROTESTANT'S OFFER WAS REJECTED AS NOT WITHIN THE COMPETITIVE RANGE BECAUSE IT DID NOT INCLUDE A COMPREHENSIVE PLAN OF METHODOLOGY. PROTESTANT CONTENDS THAT THE SOLICITATION DID NOT REQUIRE A COMPREHENSIVE PLAN AND THE FAA'S FINDING OF LACK OF EXPERIENCE AND FACILITIES WAS BASED ON MISINFORMATION. THE SUBJECT SOLICITATION WAS ISSUED ON DECEMBER 28. THIS DETERMINATION WAS BASED ON FAA'S CONCLUSION THAT THE ACLS PROPOSAL WAS DEFICIENT IN THREE AREAS. IT WAS FOUND THAT THE PLANNING METHODOLOGY LACKED DETAIL IN RELATION TO SPECIFIC WORK ACTIVITIES AND SCHEDULING. THE PAST CORPORATE EXPERIENCE SET OUT IN THE PROPOSAL WAS NOT ADEQUATE. WHILE THE PROTEST WAS STILL PENDING. IT IS ASSERTED. WAS INCLUDED IN THE ACLS PROPOSAL.

B-175876, JUL 24, 1972

BID PROTEST - CLARITY OF SOLICITATION - FPR 1-3.101(D) CONCERNING PROTEST OF ACLS CORPORATION AGAINST AWARD OF A CONTRACT TO VITRO (AUTOMATION INDUSTRIES) UNDER AN RFP ISSUED BY THE FEDERAL AVIATION ADMINISTRATION, FOR TECHNICAL SUPPORT FOR THE MICROWAVE LANDING SYSTEM. PROTESTANT'S OFFER WAS REJECTED AS NOT WITHIN THE COMPETITIVE RANGE BECAUSE IT DID NOT INCLUDE A COMPREHENSIVE PLAN OF METHODOLOGY, AND AS ACLS DID NOT POSSESS ADEQUATE EXPERIENCE OR FACILITIES. PROTESTANT CONTENDS THAT THE SOLICITATION DID NOT REQUIRE A COMPREHENSIVE PLAN AND THE FAA'S FINDING OF LACK OF EXPERIENCE AND FACILITIES WAS BASED ON MISINFORMATION. ALTHOUGH IT DOES NOT APPEAR THAT THE FAA ABUSED ITS DISCRETION IN FINDING ACLS NOT WITHIN THE COMPETITIVE RANGE, THE SOLICITATION DID LACK SUFFICIENT CLARITY TO INSURE MAXIMUM COMPETITION AS REQUIRED BY FPR 1- 3.101(D). THE COMP. GEN. SUGGESTS THAT CORRECTIVE MEASURES BE TAKEN IN THE FUTURE.

TO MR. SECRETARY:

WE REFER TO A LETTER DATED JUNE 19, 1972, FROM THE ASSOCIATE ADMINISTRATOR FOR ADMINISTRATION TRANSMITTING A REPORT IN CONNECTION WITH THE PROTEST ON BEHALF OF THE ACLS CORPORATION (ACLS) AGAINST FURTHER NEGOTIATIONS OR AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) NO. WA5R-2-0308, ISSUED BY THE FEDERAL AVIATION ADMINISTRATION.

THE SUBJECT SOLICITATION WAS ISSUED ON DECEMBER 28, 1971, FOR TECHNICAL SUPPORT FOR THE MICROWAVE LANDING SYSTEM DEVELOPMENT PROGRAM. IN RESPONSE TO THE SOLICITATION ACLS SUBMITTED A PROPOSAL DATED FEBRUARY 23, 1972. LETTER DATED MARCH 28, 1972, FAA REJECTED THE ACLS PROPOSAL AS NOT WITHIN THE COMPETITIVE RANGE AND THEREFORE INELIGIBLE FOR FURTHER NEGOTIATION. THIS DETERMINATION WAS BASED ON FAA'S CONCLUSION THAT THE ACLS PROPOSAL WAS DEFICIENT IN THREE AREAS. FIRST, IT WAS FOUND THAT THE PLANNING METHODOLOGY LACKED DETAIL IN RELATION TO SPECIFIC WORK ACTIVITIES AND SCHEDULING; SECOND, THE PAST CORPORATE EXPERIENCE SET OUT IN THE PROPOSAL WAS NOT ADEQUATE; AND THIRD, THE PROPOSAL DID NOT DESCRIBE ADEQUATE CORPORATE FACILITIES.

BY LETTER DATED MAY 4, 1972, COUNSEL FOR ACLS PROTESTED THE FAA DETERMINATION. ON JUNE 30, 1972, WHILE THE PROTEST WAS STILL PENDING, FAA AWARDED A CONTRACT TO VITRO (AUTOMATION INDUSTRIES) PURSUANT TO A DETERMINATION AND FINDINGS DATED JUNE 5, 1972.

COUNSEL FOR ACLS DISPUTES THE FIRST DEFICIENCY ON THE GROUNDS THAT SOLICITATION DID NOT REQUIRE THE SUBMISSION OF COMPREHENSIVE PLANS FOR THE EXECUTION OF TASKS NO. 1 AND NO. 2, BUT ONLY CALLED FOR A LESS DETAILED DESCRIPTION OF THE METHODOLOGY FOR THE DEVELOPMENT OF SUCH PLANS WHICH, IT IS ASSERTED, WAS INCLUDED IN THE ACLS PROPOSAL. BASED ON THIS INTERPRETATION, COUNSEL FOR ACLS CONTENDS THAT THE ACLS PROPOSAL DID IN FACT MEET THE REQUIREMENTS OF THE RFP.

NOTE 1, PART I OF THE SOLICITATION ORIGINALLY PROVIDED IN PERTINENT PART AS FOLLOWS:

"IN RESPONDING TO THIS RFP, THE OFFEROR WILL:

(1) UTILIZE THE TASK PLANNING FORMAT, REFLECTED IN ARTICLE 1 OF STATEMENT OF WORK, PARAGRAPH 6.0 F AND PREPARE A COMPREHENSIVE PLAN FOR (SEE ATTACHMENT 1):

(I) TASK #1 - COMPONENT DEVELOPMENT

(II) TASK #2 - SIGNAL PROCESSOR."

PARAGRAPH 6.0F, REFERRED TO IN THE ABOVE QUOTATION, PROVIDED:

"CONTRACTOR'S TASK PLANNING: FOR EACH ASSIGNED TASK IN RESPONSE TO A TASK SPECIFICATION, THE CONTRACTOR SHALL PROVIDE A DEVELOPMENT/MANAGEMENT PLAN FOR APPROVAL (PRIOR TO THE START OF WORK EFFORT) WHICH WILL IDENTIFY THE PROGRAM REQUIRED IN ACCORDANCE WITH THE FOLLOWING FORMAT:

I. APPROACH

II. MAJOR PHASES

III. SPECIFIC WORK ACTIVITIES

A. TECHNICAL AUDIT OF PRESENT 'ON-GOING' ACTIVITIES

B. DETAILED TECHNICAL PROGRAM PLAN

IV. SCHEDULE

V. APPROVAL/DECISIONS/REDIRECTION POINTS

VI. DELIVERABLE ITEMS

VII. RESOURCES REQUIREMENTS

A. MAN-YEARS EFFORT

B. COST"

SUBSEQUENTLY THE SOLICITATION WAS AMENDED BY ADDING THE FOLLOWING PROVISION TO NOTE I, PART I, AS QUOTED ABOVE.

"THE TWO PLANS TO BE PRESENTED BY THE OFFEROR IN HIS PROPOSAL SHALL DESCRIBE THE METHODOLOGY WHICH THE OFFEROR INTENDS TO USE IN THE DEVELOPMENT OF COMPLETE PLANS FOR THE TOTAL EXECUTION OF TASKS #1 AND #2. THE ACTUAL DEVELOPMENT OF THE PLANS WILL REPRESENT THE INITIAL TASKS TO BE PERFORMED BY THE SELECTED CONTRACTOR AFTER CONTRACT AWARD."

FINALLY, PARAGRAPH 9.0 A OF THE STATEMENT OF WORK ENTITLED "TASK SPECIFICATION," AS AMENDED PROVIDED IN PART:

"THE PURPOSE OF EACH TASK SPECIFICATION, WHICH WILL BE PREPARED BY THE GOVERNMENT, IS TO DELINEATE THE OBJECTIVES AND REQUIREMENTS OF SPECIFIC TASK EFFORT DESIRED OF THE CONTRACTOR AND TO ESTABLISH THE PRIORITIES, PLANNING, PHASING, AND SCHEDULING REQUIREMENTS FOR EACH PARTICULAR TASK. UPON RECEIPT OF THIS TASK ASSIGNMENT DOCUMENT, THE CONTRACTOR SHALL PREPARE A DEVELOPMENT/MANAGEMENT PLAN. ***"

A CAREFUL READING OF THESE PROVISIONS, PARTICULARLY THE AMENDMENT TO NOTE I, PART I, WHICH CLEARLY RESTRICTS THE SCOPE OF THE INITIAL PLAN REQUIREMENT, APPEARS TO CALL FOR OFFERORS TO SUBMIT FOR EVALUATION SOMETHING LESS DETAILED THAN THE TASK PLAN SPECIFIED IN PARAGRAPH 6.0 F TO BE PROVIDED BY THE CONTRACTOR AFTER AWARD. HOWEVER, BASED ON THE DEFINITION AND STANDARDS STATED, THE EVALUATION CRITERIA USED IN JUDGING THE ADEQUACY OF THIS PORTION OF THE PROPOSALS ARE NEARLY IDENTICAL TO THE TASK PLAN FORMAT SET FORTH IN PARAGRAPH 6.0 F. THIS FORMAT, PURSUANT TO PARAGRAPH 9.0 A (CITED ABOVE), WAS TO BE USED IN PREPARING THE COMPLETED PLAN IN ACCORDANCE WITH A TASK SPECIFICATION TO BE FURNISHED BY THE GOVERNMENT AFTER AWARD.

WE BELIEVE THAT THE LACK OF CLARITY IN THIS REGARD IS NOT CONSISTENT WITH THE REQUIREMENT IN FPR 1-3.101(D) THAT NEGOTIATED PROCUREMENTS BE MADE ON A COMPETITIVE BASIS TO THE MAXIMUM PRACTICAL EXTENT AND COULD HAVE JUSTIFIED QUESTIONING THE VALIDITY OF THE PROCUREMENT ACTION IF THE CITED FACTOR HAD BEEN EITHER THE SOLE OR DETERMINATIVE REASON FOR FINDING THAT THE ACLS PROPOSAL WAS NOT WITHIN THE COMPETITIVE RANGE. HOWEVER, IT APPEARS FROM THE RECORD THAT OF THE THREE REMAINING EVALUATION CRITERIA SET FORTH IN THE SOLICITATION, ACLS RECEIVED THE LOWEST SCORE ON TWO, CORPORATE EXPERIENCE AND FACILITIES. IN ADDITION, ACLS RECEIVED THE LOWEST OVERALL TECHNICAL SCORE. ALTHOUGH COUNSEL FOR ACLS ALLEGES THAT ITS LOW RATING UNDER THE CORPORATE EXPERIENCE FACTOR WAS DUE PURELY TO A DEFECT IN INFORMATION, IT IS APPARENT THAT THE RATING RESULTED FROM ACLS'S RELATIVELY, SHORT EXISTENCE AS A CORPORATE ENTITY. ALSO, WE FIND NO BASIS TO QUESTION THE RATING WITH RESPECT TO CORPORATE FACILITIES.

BASED ON THE ABOVE AND IN VIEW OF THE FACT THAT ALL PROPOSALS WERE EVALUATED IN ACCORDANCE WITH THE SAME CRITERIA, WE CANNOT CONCLUDE THAT THE AGENCY ABUSED ITS ADMINISTRATIVE DISCRETION IN DETERMINING THE ACLS PROPOSAL TO BE OUTSIDE THE COMPETITIVE RANGE. SEE B-174056, JUNE 1, 1972, AND CASES CITED THEREIN.

IN ADDITION TO THE DEFICIENCY ALREADY NOTED, A PRE-DETERMINED CUT-OFF SCORE WAS USED FOR DETERMINING COMPETITIVE RANGE. THIS OFFICE HAS HELD MANY TIMES THAT A COMPETITIVE RANGE DETERMINATION BASED SOLELY ON A COMPARISON WITH AN ARBITRARY, INFLEXIBLE PREDETERMINED SCORE FOR TECHNICAL ACCEPTABILITY IS NOT CONDUCIVE TO OBTAINING THE MAXIMUM COMPETITION OR FLEXIBILITY CONTEMPLATED BY THE PROCUREMENT STATUTES AND REGULATIONS. SEE B-174003, FEBRUARY 10, 1972. HOWEVER, IN VIEW OF THE SCORES ACTUALLY RECEIVED WE CANNOT CONCLUDE THAT THE USE OF THE IMPROPER PROCEDURE AFFECTED THE RESULT.

NEXT, COUNSEL FOR ACLS ALLEGES THAT FAA'S REFUSAL TO NEGOTIATE MAY HAVE BEEN INFLUENCED BY AGENCY ACTION TAKEN IN CONNECTION WITH CERTAIN INFORMATION REGARDING A PROSPECTIVE EMPLOYEE SUBMITTED PURSUANT TO THE ACLS PROPOSAL. THE RECORD INDICATES THAT THE AGENCY BROUGHT THE MATTER TO THE ATTENTION OF THE PROSPECTIVE ACLS EMPLOYEE'S THEN PRESENT EMPLOYER DUE TO THE POSSIBLE EXISTENCE OF A CONFLICT-OF-INTEREST. THERE IS NO EVIDENCE IN THE RECORD WITH WHICH TO SUPPORT A CONCLUSION THAT THE INCIDENT HAD ANY BEARING ON THE EVALUATION OF THE ACLS PROPOSAL.

FINALLY, WE THINK IT IS APPROPRIATE TO NOTE THAT THE URGENCY OF THE PROCUREMENT WAS NOT REFLECTED IN THE 30 WORKING DAYS WHICH ELAPSED BETWEEN THE TIME FAA WAS NOTIFIED OF THE PROTEST AND OUR RECEIPT OF THE ADMINISTRATIVE REPORT.

WE TRUST THAT THE DEFICIENCIES DISCUSSED WILL NOT BE PERMITTED TO RECUR IN FUTURE PROCUREMENTS.