B-175953, JUL 21, 1972

B-175953, JUL 21, 1972

BID PROTEST - SOLE SOURCE PROCUREMENT - PROPRIETY OF AWARD DENIAL OF PROTEST BY THE ARCTIC COMPANY, LTD., AGAINST THE AWARD OF A CONTRACT BY THE MARITIME ADMINISTRATION TO THE ARCTIC INSTITUTE OF NORTH AMERICA FOR A STUDY TO "DETERMINE REQUIREMENTS FOR MARINE TRANSPORTATION SERVICE, PORT FACILITIES AND RELATED COMMUNITY SERVICES IN SUPPORT OF ARCTIC COMMERCE." IN DETERMINING THE PROPRIETY OF AN AWARD UNDER A SOLE-SOURCE SOLICITATION, THE STANDARD TO BE APPLIED IS ONE OF REASONABLENESS AND UNLESS IT IS SHOWN THAT THE CONTRACTING OFFICER ACTED ARBITRARILY, THERE IS NO LEGAL BASIS TO QUESTION THE AWARD. ACCORDINGLY, THE PROTEST MUST BE DENIED.

TO THE ARCTIC COMPANY, LTD.:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 11, 1972, WITH ENCLOSURE, PROTESTING THE AWARD OF A CONTRACT BY THE UNITED STATES DEPARTMENT OF COMMERCE, MARITIME ADMINISTRATION (MARITIME) TO THE ARCTIC INSTITUTE OF NORTH AMERICA (ARCTIC INSTITUTE) FOR A STUDY TO "DETERMINE REQUIREMENTS FOR MARINE TRANSPORTATION SERVICE, PORT FACILITIES AND RELATED COMMUNITY SERVICES IN SUPPORT OF ARCTIC COMMERCE."

BEGINNING IN 1970, MARITIME UNDERTOOK THE DEVELOPMENT OF A PROGRAM FOR ARCTIC RESEARCH AND DEVELOPMENT. SEVERAL UNSOLICITED PROPOSALS WERE RECEIVED BUT WERE REJECTED DUE TO MARITIME'S BELIEF THAT PRIVATE INDUSTRY WOULD NOT COOPERATE BECAUSE OF THEIR PREVIOUS LACK OF PARTICIPATION AND BECAUSE THE INFORMATION OBTAINED BY MARITIME INDICATED THAT PRIVATE INDUSTRY WOULD NOT AGREE TO A JOINT FINANCING OF AN ARCTIC STUDY.

IN JANUARY 1972, MARITIME RECEIVED FROM THE ARCTIC INSTITUTE AN UNSOLICITED PROPOSAL WHICH DEMONSTRATED THE ABILITY TO ACCOMPLISH MARITIME'S OBJECTIVES BY ASSEMBLING A DIVERGENT AND COMPETITIVE PRIVATE INDUSTRY GROUP OF OFFICIALS TO WORK TOGETHER ON THE PROPOSED STUDY. THE ARCTIC INSTITUTE HAD OBTAINED FIRM COMMITMENTS FROM THE OFFICIALS TO VOLUNTEER TIME AND EFFORT AT NO COST TO THE GOVERNMENT. BASED UPON PAST EXPERIENCE IN TRYING TO OBTAIN INDUSTRIAL COOPERATION ON AN ARCTIC STUDY, MARITIME VIEWED THE ARCTIC INSTITUTE'S PROPOSAL AS DEMONSTRATING A UNIQUE ABILITY TO ACCOMPLISH THE STUDY. ACCORDINGLY, MARITIME OFFICIALS RECOMMENDED A SOLE-SOURCE AWARD TO THE ARCTIC INSTITUTE. ON APRIL 12, 1972, THE PROPOSED AWARD OF CONTRACT WAS PUBLISHED IN THE COMMERCE BUSINESS DAILY.

YOU PROTESTED TO MARITIME AGAINST THE PROPOSED AWARD AND YOU WERE ALLOWED TO MAKE A PRESENTATION OF YOUR CAPABILITIES AND RESOURCES TO PERFORM THE ARCTIC STUDY. YOUR PRESENTATION WAS EVALUATED AND IT WAS ADMINISTRATIVELY DETERMINED THAT YOU DID NOT HAVE THE EXPERIENCE TO PERFORM THE STUDY. PURSUANT TO THE AUTHORITY GRANTED IN 41 U.S.C. 252(C)(10), WHICH PROVIDES FOR THE NEGOTIATION OF CONTRACTS OR SERVICES FOR WHICH IT IS IMPRACTICABLE TO OBTAIN COMPETITION BY FORMAL ADVERTISING, A CONTRACT WAS AWARDED ON MAY 5, 1972, TO THE ARCTIC INSTITUTE AND YOUR PROTEST TO THIS OFFICE FOLLOWED.

YOU CONTEND THAT A SOLE-SOURCE PROCUREMENT WAS NOT NECESSARY AND COMPETITIVE PROPOSALS SHOULD HAVE BEEN SOLICITED. IN THIS CONNECTION, YOU STATE THAT YOU HAVE PERFORMED SEVERAL TRANSPORTATION STUDIES AND THAT YOU CAN OFFER COMPETENT EXPERTS TO PERFORM AN ARCTIC STUDY.

IN DETERMINING THE PROPRIETY OF AN AWARD UNDER A SOLE-SOURCE SOLICITATION, THE STANDARD TO BE APPLIED IS ONE OF REASONABLENESS AND UNLESS IT IS SHOWN THAT THE CONTRACTING OFFICER ACTED ARBITRARILY, THERE IS NO LEGAL BASIS TO QUESTION THE AWARD. AS NOTED, MARITIME CONSIDERED THAT THE PROPOSAL DEMONSTRATED A "UNIQUE" CAPABILITY. YOUR CAPABILITIES AND RESOURCES WERE EXAMINED AND FOUND WANTING IN RELATION TO THE RESOURCES WHICH THE INSTITUTE BRING TO BEAR ON THE PROJECT. AN ANALYSIS OF THE RECORD MAKES CLEAR THAT THE CONTRACTING OFFICER ACTED REASONABLY AND IN GOOD FAITH.

YOU ALSO ALLEGE THAT "A QUASI-PUBLIC ORGANIZATION WAS GIVEN FAVORED TREATMENT OVER A SMALL BUSINESS CONCERN." IT IS REPORTED THAT THE ARCTIC INSTITUTE IS A NONPROFIT, SCIENTIFIC AND EDUCATIONAL INSTITUTION AND BASED ON THE RECORD BEFORE US, WE CANNOT CONCLUDE THAT THE ARCTIC INSTITUTE IS A QUASI-PUBLIC ORGANIZATION OR THAT THEY WERE GIVEN FAVORED TREATMENT.

CONSEQUENTLY, YOUR PROTEST MUST BE DENIED.