B-176339, AUG 14, 1972

B-176339: Aug 14, 1972

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IS A MATTER OF ADMINISTRATIVE DETERMINATION. THE FINDING THAT PROTESTANT WAS NOT WITHIN THE COMPETITIVE RANGE WILL NOT BE DISTURBED BY GAO. JOHNSON AND ASSOCIATES: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 22. WAS FOR THE DEVELOPMENT OF A NOAA CIVILIAN DIVING MANUAL. SIXTY FIRMS WERE SOLICITED AND 20 RESPONDED BY THE AMENDED CLOSING DATE OF APRIL 24. IT WAS DETERMINED THAT ONLY PRI AND OCEAN SYSTEMS. WERE WITHIN THE COMPETITIVE RANGE. PRI RECEIVED THE HIGHER POINT SCORE AND WAS AWARDED THE CONTRACT ON JUNE 20. 126.70 IN EXCESS OF YOUR OFFER WITHOUT DISCUSSIONS WITH YOUR FIRM WAS ARBITRARY. JOHNSON IS A REGISTERED PROFESSIONAL ENGINEER AND A RETIRED MARINE LIEUTENANT COLONEL WITH EXPERIENCE IN PREPARATION OF NAVAL OCEANOGRAPHIC AND MARINE SCIENCE REPORTS.

B-176339, AUG 14, 1972

BID PROTEST - TECHNICAL EVALUATION - FINDING OF FIRMS IN COMPETITIVE RANGE DECISION DENYING PROTEST OF EDWARD T. JOHNSON AND ASSOCIATES AGAINST AWARD OF A CONTRACT TO POTOMAC RESEARCH INC., UNDER A SOLICITATION ISSUED BY THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, FOR A CIVILIAN DIVING MANUAL. DETERMINATION OF COMPETITIVE RANGE, ESPECIALLY AS REGARDS TECHNICAL CONSIDERATIONS, IS A MATTER OF ADMINISTRATIVE DETERMINATION. AS NO CLEAR SHOWING OF ABUSE OF THIS DISCRETION HAS BEEN MADE, THE FINDING THAT PROTESTANT WAS NOT WITHIN THE COMPETITIVE RANGE WILL NOT BE DISTURBED BY GAO.

TO EDWARD T. JOHNSON AND ASSOCIATES:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 22, 1972, WITH ENCLOSURES, PROTESTING AGAINST THE AWARD OF A CONTRACT TO POTOMAC RESEARCH, INCORPORATED (PRI), UNDER SOLICITATION NO. 2-35390, ISSUED BY THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION (NOAA), UNITED STATES DEPARTMENT OF COMMERCE.

THE SUBJECT SOLICITATION, ISSUED MARCH 6, 1972, WAS FOR THE DEVELOPMENT OF A NOAA CIVILIAN DIVING MANUAL. SIXTY FIRMS WERE SOLICITED AND 20 RESPONDED BY THE AMENDED CLOSING DATE OF APRIL 24, 1972. THE DOLLAR AMOUNTS OF THE PROPOSALS RANGED FROM $10,000 TO $120,000. AFTER TECHNICAL EVALUATION, IT WAS DETERMINED THAT ONLY PRI AND OCEAN SYSTEMS, INCORPORATED (OSI), WERE WITHIN THE COMPETITIVE RANGE, PRICE AND TECHNICAL FACTORS CONSIDERED. AFTER NEGOTIATIONS WITH THOSE TWO FIRMS, PRI RECEIVED THE HIGHER POINT SCORE AND WAS AWARDED THE CONTRACT ON JUNE 20, 1972.

YOU CONTEND THAT THE AWARD OF THIS CONTRACT TO PRI AT A PRICE $31,126.70 IN EXCESS OF YOUR OFFER WITHOUT DISCUSSIONS WITH YOUR FIRM WAS ARBITRARY. IN STATING YOUR QUALIFICATIONS TO DO THE WORK YOU POINT OUT THAT MR. JOHNSON IS A REGISTERED PROFESSIONAL ENGINEER AND A RETIRED MARINE LIEUTENANT COLONEL WITH EXPERIENCE IN PREPARATION OF NAVAL OCEANOGRAPHIC AND MARINE SCIENCE REPORTS, AS WELL AS SCUBA DIVING METHODS, AND THAT YOU OFFERED TO SUPPLEMENT THIS EXPERIENCE WITH TRAINED DIVING SPECIALISTS.

NOAA NOTES THAT UNDER THE TERMS OF PARAGRAPH 35 OF THE SOLICITATION OFFERORS WERE ADVISED THAT THE MOST ADVANTAGEOUS OFFER WOULD BE DETERMINED ON THE BASIS OF COST, TECHNICAL COMPETENCE, PREVIOUS RELATED EXPERIENCE AND INNOVATIVENESS, IN ACCORDANCE WITH SPECIFIED POINT RANGES FOR EACH FACTOR. BASED UPON TECHNICAL EVALUATIONS BY THE MANNED UNDERSEA SCIENCE AND TECHNOLOGY TEAM, YOUR PROPOSAL WAS RANKED TENTH. YOUR FIRM WAS CONSIDERED WEAK IN UNDERWATER SCIENCE KNOWLEDGE AND SATURATION DIVING TECHNIQUES. YOUR IN-HOUSE CAPABILITY FOR THE STANDARD MODES OF DIVING WAS ALSO CONSIDERED GENERALLY WEAK. ALTHOUGH YOU APPEAR TO OFFER AN IMPRESSIVE ARRAY OF CONSULTANTS, IT IS POINTED OUT THAT YOUR BUDGET PROVIDES FOR ONLY ABOUT SEVEN DAYS OF SUCH SERVICES. NOAA NOTES THAT HAD THE SELECTION BEEN MADE ON PRICE ONLY, YOU WOULD HAVE STILL BEEN UNSUCCESSFUL SINCE THE LOWEST OFFER WAS $18,385 BELOW YOURS.

WITH REGARD TO THE REQUIREMENT FOR NEGOTIATIONS TO BE CONDUCTED WITH OFFERORS, FEDERAL PROCUREMENT REGULATIONS (FPR) 1-3.805-1 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." OUR OFFICE HAS HELD THAT A PROPOSAL MUST BE CONSIDERED TO BE WITHIN A COMPETITIVE RANGE SO AS TO REQUIRE NEGOTIATIONS UNLESS IT IS SO TECHNICALLY INFERIOR OR OUT OF LINE WITH REGARD TO PRICE THAT MEANINGFUL NEGOTIATIONS ARE PRECLUDED. WE HAVE ALSO RECOGNIZED THAT THE DETERMINATION OF COMPETITIVE RANGE, PARTICULARLY AS REGARDS TECHNICAL CONSIDERATIONS, IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION WHICH WILL NOT BE DISTURBED IN THE ABSENCE OF A CLEAR SHOWING THAT SUCH DETERMINATION REPRESENTED AN ARBITRARY ABUSE OF DISCRETION. 48 COMP. GEN. 314 (1968). WE CANNOT CONCLUDE THAT THE ADMINISTRATIVE DETERMINATION IN THIS CASE WAS ARBITRARY.

ACCORDINGLY, YOUR PROTEST IS DENIED.