B-176294, OCT 27, 1972

B-176294, OCT 27, 1972

BID PROTEST - COMPETITIVE RANGE - DEGREE OF OFFER REVISION REQUIRED DENIAL OF PROTEST ON BEHALF OF ALBERT RAMOND AND ASSOCIATES, INC., (AR&A) AGAINST THE REJECTION OF THEIR PROPOSAL UNDER AN RFP ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION FOR A COST-PLUS-FIXED FEE CONTRACT FOR THE EVALUATION OF FIELD CENTER OPERATIONS AND MAINTENANCE MANAGEMENT FUNCTIONS AT SEVERAL LOCATIONS. THE DETERMINATION OF WHETHER A PARTICULAR PROPOSAL IS WITHIN THE COMPETITIVE RANGE SO AS TO REQUIRE "DISCUSSIONS" UNDER 10 U.S.C. 2304(G) IS COMMITTED TO THE SOUND DISCRETION OF THE PROCURING AGENCY. IT HAS BEEN HELD THAT WHERE A PROPOSAL IS SO MATERIALLY DEFICIENT THAT IT CANNOT BE MADE ACCEPTABLE EXCEPT BY MAJOR REVISIONS, THERE IS NO REQUIREMENT TO HOLD DISCUSSIONS WITH THE PROPOSER. B-174125, MARCH 28, 1972. IN VIEW OF THE RECORD PRESENTED HERE, IT CANNOT BE CONCLUDED THAT MINOR REVISIONS WOULD HAVE PLACED AR&A WITHIN THE COMPETITIVE RANGE. CONSEQUENTLY, NO BASIS IS PRESENTED FOR OBJECTING TO THE PROPOSED AWARD OF THE CONTRACT. NG A LEGAL OBJECTION TO THE PROPOSED AWARD.

TO VEDDER, PRICE, KAUFMAN & KAMMHOLZ:

WE REFER TO YOUR LETTER OF SEPTEMBER 28, 1972, AND PRIOR CORRESPONDENCE, PROTESTING THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) REJECTION OF THE ALBERT RAMOND AND ASSOCIATES, INC., (AR&A) PROPOSAL SUBMITTED IN RESPONSE TO REQUEST FOR PROPOSALS (RFP) W-10-11399/DHC-3. SPECIFICALLY, YOU QUESTION THE NASA DETERMINATION THAT THE AR&A PROPOSAL WAS NOT WITHIN THE COMPETITIVE RANGE AND THEREFORE INELIGIBLE FOR NEGOTIATIONS.

THE RFP REQUESTED COST-PLUS-FIXED-FEE PROPOSALS FOR THE EVALUATION OF FIELD CENTER OPERATIONS AND MAINTENANCE MANAGEMENT FUNCTIONS AT GODDARD SPACE FLIGHT CENTER, KENNEDY SPACE CENTER AND LEWIS RESEARCH CENTER AND THE PREPARATION OF A FACILITIES MAINTENANCE HANDBOOK FOR NASA. SEVEN FIRMS RESPONDED BY APRIL 10, 1972, THE CLOSING DATE FOR RECEIPT OF PROPOSALS. AFTER EVALUATION, THREE PROPOSALS WERE DETERMINED TO BE WITHIN THE COMPETITIVE RANGE, AND THE UNSUCCESSFUL OFFERORS WERE NOTIFIED OF THE UNACCEPTABILITY OF THEIR PROPOSALS. AR&A REQUESTED AND RECEIVED A DEBRIEFING. THEREAFTER, ON JUNE 29, 1972, YOU PROTESTED THE DETERMINATION TO OUR OFFICE. THE AWARD OF A CONTRACT TO BOOZ ALLEN APPLIED RESEARCH, INC. & CATALYTIC, INC., IS BEING WITHHELD PENDING RESOLUTION OF THE PROTEST.

FROM OUR REVIEW OF THE RECORD, WE CANNOT CONCLUDE THAT NASA ABUSED ITS DISCRETION IN DETERMINING THAT AR&A WAS UNACCEPTABLE AND NOT ENTITLED TO FURTHER CONSIDERATION.

THE SEPTEMBER 13, 1972, REPORT FROM THE DIRECTOR OF PROCUREMENT, NASA, REVEALS THAT THE EVALUATION OF THE AR&A PROPOSAL, IN ACCORDANCE WITH THE "MISSION SUITABILITY FACTORS" SET FORTH IN THE RFP, RESULTED IN A TECHNICAL SCORE WHICH RANKED AR&A SIXTH OUT OF THE SEVEN PROPOSALS EVALUATED. THE REASONS FOR THE LOW AR&A TECHNICAL SCORE ARE SUMMARIZED BY THE DIRECTOR OF PROCUREMENT AS FOLLOWS:

"THE TECHNICAL EVALUATION TEAM CONSIDERED THAT A 30% AVAILABILITY RATE FOR THE PROJECT MANAGER WAS NOT SUFFICIENT SUPERVISION FOR THE SMALL SURVEY TEAM THAT WOULD BE INVOLVED IN THE MANY AND VARIED ACTIVITIES DURING THE CONDUCT OF THE SURVEYS. THE FACT THAT THE AR&A PROPOSAL CONTAINED A STATEMENT THAT AVAILABILITY OF THE PROJECT MANAGER '... WILL VARY ACCORDING TO THE DESIRES OF NASA' WAS CONSIDERED WEAK. NASA DOES NOT INTEND TO CONTROL THE OPERATION OF THE SURVEY TEAM TO THE EXTENT OF ADVISING THE PROJECT MANAGER OF THE AMOUNT OF TIME THAT HE SHOULD SPEND IN THE FIELD. THE TEAM ALSO QUESTIONED WHETHER THE AR&A PROPOSED PROJECT MANAGER, A VICE PRESIDENT OF THE FIRM, RESPONSIBLE FOR ITS WASHINGTON AREA ACTIVITIES COULD EXPECT TO BE AVAILABLE MORE OFTEN THAN ORIGINALLY SCHEDULED.

"BASED ON THE MATERIAL SUBMITTED IN THE AR&A PROPOSAL, IT WAS DIFFICULT TO DETERMINE THE QUALIFICATIONS OF THE PROPOSED TEAM MEMBERS EXCEPT FOR THE PROJECT MANAGER. THE PROPOSAL CONTAINED ONLY GENERAL STATEMENTS TO THE EFFECT THAT THE LEAD ENGINEER POSSESSED EXTENSIVE EXPERTISE IN CERTAIN MAINTENANCE AREAS AND FAILED TO DISCUSS WHETHER THIS EXPERIENCE WAS GAINED FROM DOING CONSULTING WORK FOR CLIENTS OR AS A MEMBER OF A MANAGEMENT TEAM OPERATING AND MAINTAINING A FACILITY. THE PROPOSAL ALSO FAILED TO DISCUSS THE LEVEL OR DEGREE OF MANAGEMENT EXPERIENCE WHICH THE LEAD ENGINEER POSSESSED; SINCE THIS INDIVIDUAL WAS TO BE RESPONSIBLE FOR THE DAILY ACTIVITIES OF THE TEAM IN THE ABSENCE OF THE PROJECT MANAGER, THIS LACK OF INFORMATION WAS SIGNIFICANT. THE DESCRIPTION OF THE QUALIFICATIONS AND EXPERIENCE OF THE STAFF ENGINEERS WAS EQUALLY VAGUE.

"ALTHOUGH THE PROJECT MANAGER HAD EXTENSIVE EXPERIENCE IN THE AREA OF OPERATIONS AND MAINTENANCE, NEITHER HE NOR THE MEMBERS OF THE ENGINEERING STAFF WERE DESCRIBED AS BEING SPECIALLY QUALIFIED IN THE EVALUATION OF THE OPERATIONS AND MAINTENANCE OF R&D PECULIAR FACILITIES. FURTHERMORE, ALTHOUGH THE RFP REQUESTED INFORMATION REGARDING INDIVIDUALS PROPOSED TO WORK IN THE AREAS OF CRYOGENICS AND FUELS, LARGE AIR HANDLING AND AIR PROCESSING SYSTEMS, CORROSION CONTROL AND CATHODIC PROTESTION, HIGH TEMPERATURE HOT WATER SYSTEMS, SPECIALIZED POWER GENERATION AND POWER REDUNDANCY, WIND TUNNELS, LAUNCH FACILITIES AND WATER COOLING TOWERS, THE AR&A PROPOSAL DID NOT ADDRESS ITSELF TO THESE AREAS. IN ITS LETTER OF PROTEST, ALTHOUGH NOWHERE SPECIFIED IN ITS PROPOSAL, AR&A HAS STATED THAT ITS PROJECT MANAGER IS QUALIFIED IN EACH OF THESE AREAS; IN CONTRAST, BOOZ -ALLEN/CATALYTIC PLANS TO SUPPLEMENT ITS PROJECT TEAM WITH 40 SPECIALISTS, QUALIFIED IN THE ABOVE AREAS, DRAWN FROM THE MANPOWER POOL OF BOTH CORPORATIONS. AR&A APPARENTLY INTENDED TO USE NASA'S EXPERTISE IN THESE UNIQUE AREAS, WHEREAS WHAT WAS DESIRED WAS AN OBJECTIVE ANALYSIS OF THESE OPERATIONS BY CONTRACTOR PERSONNEL.

"AR&A'S PROPOSED PLAN FOR CONDUCTING A SURVEY WAS NOT AS HIGHLY RATED AS THAT OF BOOZ-ALLEN. AR&A PLANNED TO USE ITS STANDARD FORM, THE MAINTENANCE MANAGEMENT SURVEY DATA FORM, AS A GUIDE IN CONDUCTING THE SURVEY AND AS A METHOD OF IDENTIFYING POTENTIAL PROBLEMS. AR&A HAS STATED THAT ITS PROPOSAL EXPRESSLY PROVIDED FOR A THOROUGH SURVEY AND ANALYSIS OF FUNCTIONS BY THE FIRM USING THE INFORMATION AND DATA COLLECTED AND COLLATED THROUGH THE USE OF THE FORM. HOWEVER, NO DETAILED PLAN WAS PRESENTED, ONLY A BREAKDOWN OF KEY AREAS INTO TWO FUNCTIONAL AREAS. THE FIRM DID NOT ADEQUATELY DEFINE AN INDIVIDUAL APPROACH FOR NASA'S UNIQUE R&D FUNCTIONS WHICH DIFFER FROM CENTER TO CENTER. THIS OMISSION WAS SIGNIFICANT SINCE AR&A HAD CITED AS BEING OF COMPARABLE EXPERIENCE, SURVEYS PERFORMED AT TEN GENERAL PURPOSE MILITARY BASES, NONE OF WHICH WAS SIMILAR IN COMPLEXITY TO THE THREE NASA CENTERS.

"CERTAIN SECTIONS OF THE AR&A PROPOSAL LED THE EVALUATION TEAM TO CONCLUDE THAT THE FIRM DID NOT ACCURATELY UNDERSTAND THE SCOPE OF THE WORK. DURING THE DEBRIEFING AR&A PERSONNEL WERE ADVISED THAT THERE ARE NO FAMILY HOUSING UNITS AT ANY OF THE CENTERS TO BE SURVEYED NOR IS THERE AN AIRFIELD AT ANY OF THESE LOCATIONS. THE AIRFIELD MENTIONED IN THE AR&A LETTER OF PROTEST IS PROBABLY THAT LOCATED AT CAPE KENNEDY AIR FORCE STATION, WHICH IS A U.S. AIR FORCE INSTALLATION. THE RFP DID NOT SUGGEST THAT THE CONTRACTOR WAS TO SURVEY ADJACENT OR NEARBY INSTALLATIONS OF OTHER GOVERNMENT AGENCIES.

"ANOTHER ELEMENT OF THE PROPOSAL WHICH SUPPORTED THE CONCLUSION OF A LACK OF UNDERSTANDING WAS THE LOW LEVEL OF PLANNED MAN-HOURS VERSUS THE SIZE OF THE JOB AND THE PROPOSED DIVISION OF THE TIME AMONG THE CENTERS TO BE SURVEYED. AR&A PLANNED NINE WEEKS AT GSFC (GODDARD SPACE FLIGHT CENTER), A RELATIVELY UNCOMPLEX INSTALLATION, WHILE SEVEN WEEKS WERE PLANNED FOR LERC (LEWIS RESEARCH CENTER), WHICH CONSISTS OF TWO SEPARATE INSTALLATIONS, WITH MANY DIVERSIFIED ACTIVITIES. BOOZ-ALLEN HAD ALLOTTED SIX WEEKS FOR GSFC AND NINE WEEKS FOR LERC.

"AR&A PROPOSED THE LEAST NUMBER OF MAN-HOURS, 4,680, WHICH WAS BELOW THE NASA ESTIMATE OF 12,000 HOURS AND THOSE OF THE OTHER SIX FIRMS. WHICH RANGED FROM 5,916 TO 12,720. THE PLANNED UTILIZATION OF ONLY 4,680 MAN- HOURS INDICATED A LACK OF ADEQUATE MANPOWER TO PERFORM THE SURVEY IN THE DETAIL DESIRED BY NASA."

IN REPLY TO THE NASA REPORT, YOU URGE IN YOUR LETTER OF SEPTEMBER 28, 1972, THAT THE NASA DOWNGRADING OF AR&A CAPABILITY RESULTS FROM THE FAILURE TO GIVE PROPER CONSIDERATION TO THE EXPERTISE OF THE PROPOSED AR&A PROJECT MANAGER. YOU ALSO MAINTAIN THAT IF NASA HAD ANY QUESTIONS WHETHER THE PROJECT MANAGER COULD BE AVAILABLE MORE OFTEN THAN SCHEDULED IN VIEW OF HIS OTHER RESPONSIBILITIES, IT SHOULD HAVE IN FAIRNESS INQUIRED FURTHER BEFORE REJECTING THE AR&A PROPOSAL.

THE DETERMINATION OF WHETHER A PARTICULAR PROPOSAL IS WITHIN THE COMPETITIVE RANGE FOR THE PURPOSE OF CONDUCTING "WRITTEN OR ORAL DISCUSSIONS" REQUIRED BY 10 U.S.C. 2304(G) IS COMMITTED TO THE SOUND DISCRETION OF THE CONTRACTING AGENCY. IN OUR VIEW, THE REASONS FOR REJECTING THE AR&A PROPOSAL ARE SUPPORTED BY THE RECORD BEFORE OUR OFFICE AND DO NOT CONSTITUTE A BASIS FOR CONCLUDING THAT THE NASA DECISION CONSTITUTED AN ABUSE OF THE BROAD DISCRETION IN THIS AREA. IN THIS REGARD, WE CANNOT CONCLUDE FROM OUR REVIEW THAT NASA FAILED TO ACCORD ADEQUATE WEIGHT TO THE EXPERIENCE OF THE PROPOSED AR&A PROJECT MANAGER. IN ANY EVENT, THE AVAILABILITY AND EXPERIENCE OF THE PROJECT MANAGER WAS NOT THE ONLY FACTOR INVOLVED IN THE NASA DETERMINATION. NASA ALSO CONCLUDED THAT THE AR&A PROPOSAL DID NOT REFLECT, IN RELATIVE TERMS, AN UNDERSTANDING OF THE SCOPE OF THE WORK. THE TERMS OF THE RFP REQUIRED OFFERORS TO INDICATE THEIR UNDERSTANDING OF THE SCOPE OF THE WORK AND SUGGEST AN OVERALL APPROACH FOR PERFORMING THE REQUIRED CONTRACT SERVICES. CONTRARY TO YOUR SUGGESTION, THE CONTRACTING AGENCY IS ENTITLED TO JUDGE THE MERITS OF THE PROPOSAL AS SUBMITTED AND INFORMATIONAL DEFICIENCIES MAY PROPERLY BE CONSIDERED IN DETERMINING WHETHER A PROPOSAL WARRANTS FURTHER CONSIDERATION. WE HAVE HELD, IN THIS CONNECTION, THAT WHERE A PROPOSAL IS SO MATERIALLY DEFICIENT THAT IT COULD NOT BE MADE ACCEPTABLE EXCEPT BY MAJOR REVISIONS, THERE IS NO REQUIREMENT THAT DISCUSSIONS BE CONDUCTED WITH THE PROPOSER. 52 COMP. GEN. (B-175004, OCTOBER 12, 1972); B-174125, MARCH 28, 1972; AND SEE ALSO PARAGRAPH III.B., NASA PROCUREMENT DIRECTIVE 70-15, DECEMBER 1, 1970, EFFECTIVE AT THE TIME OF EVALUATION, AND PARAGRAPH III.C., NASA PROCUREMENT DIRECTIVE 70-15 (REVISED), SEPTEMBER 15, 1972, PRESENTLY IN EFFECT. IN VIEW OF THE RECORD BEFORE US, WE ARE UNABLE TO CONCLUDE THAT MINOR REVISIONS WOULD HAVE BEEN SUFFICIENT TO PLACE AR&A WITHIN THE COMPETITIVE RANGE.

YOU FURTHER MAINTAIN THAT WE SHOULD RECOMMEND CANCELLATION OF THE RFP IN VIEW OF THE DISPARITY BETWEEN THE NASA ESTIMATE OF THE NUMBER OF MAN HOURS NECESSARY TO PERFORM THE SURVEY AND PREPARE THE MANUAL AND THE ESTIMATE OF AR&A AND OTHER OFFERORS, POINTING TO THE CORRELATION BETWEEN THE TECHNICAL SCORE OF A PROPOSAL AND THE PROPOSAL'S PROXIMITY TO THE NASA ESTIMATE, YOU CONTEND THAT NASA MADE AN UNWARRANTED PREDETERMINATION OF THE NUMBER OF MAN-HOURS NECESSARY. YOU ALSO CONTEND THAT THE DISPARITY IN ESTIMATES SUGGESTS THAT NASA AND THE SELECTED CONTRACTOR HAVE OVERESTIMATED THE DIFFICULTY AND NUMBER OF MAN HOURS REQUIRED TO ACCOMPLISH THE PROJECT. WHILE YOU RECOGNIZE THE POSSIBILITY THAT AR&A AND OTHERS MAY HAVE UNDER- ESTIMATED THE WORK REQUIRED, YOU CONTEND THAT IT IS ALSO POSSIBLE THAT FEWER MAN HOURS WOULD BE REQUIRED IF THE CONTRACTOR UTILIZED BASIC INFORMATION FURNISHED BY NASA PERSONNEL - THE APPROACH TAKEN BY AR&A AND DOWNGRADED BY NASA. IN VIEW OF THE NASA REJECTION OF YOUR POSITION, YOU MAINTAIN THAT THE DIFFERENCE SHOULD BE RESOLVED BY RESOLUTION AND THAT IF A DIVERGENCE OF APPROACH STILL EXISTS, NASA SHOULD DETERMINE THE REASON FOR THE DIVERGENCE TO SEE IF THERE IS A REALISTIC BASIS ON WHICH THE PROJECT COULD BE ACCOMPLISHED WITH LESS MAN-HOURS AND CORRESPONDINGLY LOWER OVERALL COST.

FROM THE RECORD THERE IS NO BASIS TO CONCLUDE THAT AN OFFEROR'S PROXIMITY TO THE NASA ESTIMATE WAS THE PRIME FACTOR IN THE TECHNICAL EVALUATION. THE THREE "MISSION SUITABILITY FACTORS," THE SECOND IN ORDER OF IMPORTANCE (WITH AN ASSIGNED WEIGHT OF 270 OUT OF A POSSIBLE 800 POINTS FOR ALL FACTORS) WAS "COMPANY APPROACH AND UNDERSTANDING OF CONTRACT RESPONSIBILITY." OF THE THREE SUBFACTORS COMPRISING THE SECOND CRITERIA, ONLY THE SECOND SUBFACTOR, "ADEQUACY OF THE STAFFING PATTERN AND MANPOWER DISTRIBUTION," RELATES DIRECTLY TO THE NASA ESTIMATE AND THIS SUBFACTOR WAS ASSIGNED A WEIGHT OF 80 POINTS. OUR REVIEW OF THE NASA EVALUATION MEMORANDA INDICATES THAT THIS SUBFACTOR WAS APPLIED CONSISTENTLY IN THE EVALUATION OF ALL PROPOSALS.

WITH RESPECT TO THE SOURCE AND BASIS OF THE NASA ESTIMATE, THE FOLLOWING COMMENT CONTAINED IN THE TECHNICAL EVALUATION COMMITTEE MEMORANDUM IN REPLY TO YOUR PROTEST IS PERTINENT:

"IT SHOULD BE NOTED THAT THE NASA PERSONNEL WHO HAD PROPOSED THE CONTRACT TO CONDUCT THE SURVEYS HAD ENGAGED IN SIMILAR IN-HOUSE SURVEYS OVER THE PAST SEVERAL YEARS AT THESE SAME CENTERS. THE GOVERNMENT'S ESTIMATE OF MAN-HOURS REQUIRED WAS BASED ON AN INTIMATE FAMILIARITY WITH EACH CENTER AND LONG EXPERIENCE IN ACCOMPLISHING SUCH AUDITS IN THE PAST."

GIVEN THIS BACKGROUND, WE CAN UNDERSTAND WHY NASA WOULD TEND TO VIEW THOSE PROPOSALS APPROXIMATING ITS ESTIMATE AS A CONFIRMATION OF THE GENERAL CORRECTNESS OF THE ESTIMATE. MOREOVER, IN THIS CONTEXT, THE EXISTENCE OF THE DISPARITY AND THE IDENTIFICATION OF A NUMBER OF POSSIBLE EXPLANATIONS ARE, IN OUR OPINION, INADEQUATE BASES FOR CONCLUDING THAT THE ESTIMATE IS ERRONEOUS.

IF IN THE CASE OF THE AR&A PROPOSAL WE CONCEDE THAT THE DISPARITY IS DUE TO THE AR&A APPROACH, WE ARE DEALING NOT SO MUCH WITH THE ADEQUACY OF THE NASA ESTIMATE AS WE ARE WITH THE NASA RIGHT TO DEFINE THE SCOPE OF THE WORK REQUIRED. IN THIS POSTURE, THE REASONS ADVANCED IN SUPPORT OF THE NASA EVALUATION OF THE AR&A APPROACH PRECLUDE US FROM CONCLUDING THAT NASA ABUSED ITS DISCRETION BY REQUIRING GREATER DEPTH AND DETAIL.

CONSEQUENTLY, NO BASIS IS PRESENTED FOR INTERPOSI ..END :