B-176593, NOV 17, 1972

B-176593, NOV 17, 1972

BID PROTEST - TECHNICAL CRITERIA - PREPROPOSAL CONFERENCE CONCERNING THE DENIAL OF PROTEST BY AUDIO PRODUCTIONS, AGAINST THE AWARD OF A NEGOTIATED CONTRACT TO HEARST METROTONE NEWS BY HEW, SOCIAL AND REHABILITATION SERVICE, FOR THE PRODUCTION AND DISTRIBUTION OF 12 TELEVISION NEWS-FEATURE MINI-DOCUMENTARIES. A BID SPECIFYING THE CRITERIA FOR CONTRACTOR SELECTION TO BE A 50% EMPHASIS ON PRICE AND A 50% EMPHASIS ON TECHNICAL FACTORS WILL BE AWARDED TO THE LOW BIDDER IN THE EVENT THAT ALL PROPOSALS ARE TECHNICALLY ACCEPTABLE. FURTHER, THE FAILURE OF HEARST TO PARTICIPATE IN A PREPROPOSAL CONFERENCE, ATTENDED BY AUDIO, FURNISHES NO BASIS TO RENDER HEARST'S BID NONRESPONSIVE. SEE 50 COMP. GEN. 355 (1970). SINCE THE PRICE PROPOSALS AND THE SUBSEQUENT COST PROJECTION UTILIZED BY HEW DID NOT LEAVE AUDIO PRODUCTIONS WITH ANY COMPETITIVE DISADVANTAGE, THE PROTEST IS ACCORDINGLY DENIED.

TO AUDIO PRODUCTIONS:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 21, 1972, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF NEGOTIATED CONTRACT NO. SRS-72-78 TO HEARST METROTONE NEWS BY THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE (HEW), SOCIAL AND REHABILITATION SERVICE (SRS), WASHINGTON, D.C.

FOR THE REASONS HEREINAFTER STATED, THE PROTEST IS DENIED.

PURSUANT TO A PROCUREMENT REQUEST BY THE SRS OFFICE OF PUBLIC AFFAIRS, THE SRS CONTRACT BRANCH ADVERTISED IN THE COMMERCE BUSINESS DAILY OF JUNE 21, 1972, FOR PROPOSALS TO PRODUCE AND DISTRIBUTE APPROXIMATELY 12 TELEVISION NEWS-FEATURE MINI-DOCUMENTARIES ON SRS SUPPORTED PROJECTS AROUND THE COUNTRY DURING THE NEXT 12-MONTH PERIOD. THE ADVERTISEMENT SET FORTH A DESCRIPTION OF THE DOCUMENTARIES TO BE PRODUCED AND THE INTENDED USE. IN ADDITION, THE ADVERTISEMENT DETAILED 5 TECHNICAL EVALUATION FACTORS AND ADVISED THAT THE CRITERIA FOR CONTRACTOR SELECTION WOULD BE PRICE (50%) AND TECHNICAL FACTORS (50%). PROSPECTIVE OFFERORS WERE APPRISED OF A PREPROPOSAL CONFERENCE WHICH TOOK PLACE AS SCHEDULED ON JUNE 26, 1972.

AT THE CONFERENCE, ALL PROSPECTIVE OFFERORS WERE BRIEFED ON SRS REQUIREMENTS, GIVEN AN OPPORTUNITY TO DISCUSS THE PROCUREMENT, AND FURNISHED A COST SHEET. IT IS REPORTED THAT, AT THE CONCLUSION OF THE CONFERENCE, ALL PROSPECTIVE CONTRACTORS AGREED TO THE FOLLOWING POINTS: (1) THE COMMERCE BUSINESS DAILY ADVERTISEMENT AND THE COST SHEET WOULD SERVE AS THE REQUEST FOR PROPOSALS; (2) THE BASIS OF AWARD WOULD BE IDENTICAL TO THAT CONTAINED IN THE ADVERTISEMENT; AND (3) PROPOSALS WERE DUE BY JUNE 28, 1972.

SUBSEQUENT TO THE TIMELY RECEIPT OF PROPOSALS, SRS CONDUCTED A TECHNICAL EVALUATION WITHOUT THE BENEFIT OF PRICING INFORMATION, WHICH RESULTED IN 3 FIRMS BEING RATED TECHNICALLY ACCEPTABLE IN THE FOLLOWING ORDER: HEARST METROTONE NEWS, AUDIO PRODUCTIONS, AND MERCURY NEWSFILM. ON JUNE 29, 1972, THE PRICING PROPOSALS OF THE 3 TECHNICALLY ACCEPTABLE FIRMS WERE SUBJECTED TO AN SRS EVALUATION. BECAUSE A COMPARISON WAS HINDERED BY THE LACK OF UNIFORMITY OF THE PRICE PROPOSALS, THE SRS PROJECT OFFICER CONTACTED REPRESENTATIVES OF ALL 3 FIRMS TO OBTAIN CLARIFYING INFORMATION THAT WOULD PROVIDE A COMMON BASIS FOR PRICE PROPOSAL EVALUATION. AFTER TOTAL COST ANALYSIS, HEARST METROTONE NEWS, (RATED FIRST TECHNICALLY), WAS DETERMINED TO BE THE LOW OFFEROR. AWARD WAS MADE TO THAT FIRM ON JUNE 30, 1972. NO WORK HAS BEEN PERFORMED UNDER THE CONTRACT PENDING OUR DECISION ON YOUR PROTEST.

YOU ALLEGE SEVERAL IMPROPRIETIES IN THE CONDUCT OF THIS PROCUREMENT INCLUDING, INTER ALIA, THE FACT THAT NO FORMAL REQUEST FOR PROPOSALS WAS EVER ISSUED; THE RESULTANT ORAL CHARACTER OF THE PROCUREMENT; THE MANNER IN WHICH THE PREPROPOSAL CONFERENCE WAS CONDUCTED; AND THE FAILURE OF THE EVENTUAL AWARDEE TO ATTEND THE CONFERENCE.

THE CONTRACTING OFFICER DISAGREES WITH YOUR ASSERTION THAT A REPRESENTATIVE OF THE CONTRACTOR DID NOT ATTEND THE CONFERENCE. ASIDE FROM THIS FACTUAL DISPUTE, WE HAVE HELD THAT THE FAILURE OF A PROSPECTIVE CONTRACTOR TO ATTEND SUCH A CONFERENCE, EVEN WHERE REQUIRED BY NEGOTIATED SOLICITATION DOCUMENTS, FURNISHES NO BASIS TO DENY THAT CONTRACTOR AN OPPORTUNITY TO PARTICIPATE IN THE PROCUREMENT. SEE 50 COMP. GEN. 355 (1970). AS FOR THE CONDUCT OF THE PREPROPOSAL CONFERENCE BY SRS PERSONNEL, WE FIND NO EVIDENCE IN THE RECORD THAT ANY PROSPECTIVE OFFEROR WAS DENIED FULL AND ACTIVE PARTICIPATION IN THE PROCUREMENT. SEE B- 170884, JULY 2, 1971.

AS FAR AS THE INFORMALITY OF THE PROCUREMENT IS CONCERNED, SRS ADVISES THAT NO FORMAL PROCUREMENT DOCUMENTS WERE ISSUED DUE TO SEVERE TIME RESTRICTIONS REQUIRING AN AWARD BY JUNE 30, 1972. OUR OFFICE WILL NOT QUESTION AN AWARD MADE PURSUANT TO AN ORAL OR OTHER THAN FORMAL SOLICITATION UNLESS THERE IS EVIDENCE THAT OFFERORS WERE NOT GIVEN AN EQUAL OPPORTUNITY TO COMPETE OR THAT AWARD WAS NOT OTHERWISE IN THE BEST INTERESTS OF THE GOVERNMENT. SEE B-174723, FEBRUARY 18, 1972, AND B- 175635, AUGUST 9, 1972. HERE, ALL OFFERORS WERE FURNISHED IDENTICAL INFORMATION AS TO THE SRS REQUIREMENTS AND CRITERIA FOR AWARD IN THE FORM OF EVALUATION FACTORS AND WEIGHTS. ALSO, ALL OFFERORS WERE GIVEN IDENTICAL TIME PERIODS WITHIN WHICH TO SUBMIT INITIAL TECHNICAL AND PRICE PROPOSALS AND THERE WAS AN EQUAL OPPORTUNITY FOR OFFERORS IN A COMPETITIVE RANGE TO CLARIFY PRICE PROPOSALS.

KEEPING THIS IN MIND AND THE COVER LETTER TO THE AUDIO PRODUCTIONS PROPOSAL WHICH READS, INTER ALIA, "WE WOULD LIKE TO STATE THAT WE FIND OURSELVES IN COMPLETE AGREEMENT WITH THE SPECIFICATIONS, AS THEY ARE CLEARLY STATED IN YOUR RFP IN THE COMMERCE BUSINESS DAILY," WE FIND NO LEGAL OBJECTION TO THE INFORMAL CONDUCT OF THIS PROCUREMENT.

ANOTHER BASIS OF PROTEST CONCERNS THE ALLEGED IMPROPER COST ANALYSIS AND EVALUATION OF THE AUDIO PRODUCTIONS PRICE PROPOSAL. YOU CLAIM THAT, IN YOUR RESPONSE TO THE PROJECT OFFICER'S JUNE 29 PHONE CALL, YOU STATED THAT YOUR PRICE OF $3,560 REPRESENTED THE TOTAL COST OF PRODUCING A SINGLE DOCUMENTARY, BROKEN DOWN INTO THE VARIOUS SERVICES REQUIRED TO EFFECT SUCH PRODUCTION. IN CONTRAST, THE PROJECT OFFICER STATES THAT HE ASKED FOR AND RECEIVED FROM YOU VARIOUS PRICES TOTALLING $3,560 REPRESENTING THE COST PER DAY FOR CERTAIN SERVICES TO BE PERFORMED IN THE PRODUCTION OF THE DOCUMENTARY AND NOT THE COST OF PRODUCING AN ENTIRE DOCUMENTARY, NORMALLY REQUIRING 2 TO 3 DAYS.

WHERE, AS HERE, THERE IS A CONFLICT BETWEEN A FACTUAL STATEMENT BY A PROTESTOR AND THE REPORT OF THE ADMINISTRATIVE OFFICE, IT IS A LONG ESTABLISHED RULE OF OUR OFFICE TO BASE OUR DETERMINATION ON THE FACTS OF RECORD AND, UPON REVIEW, WE FIND NO REASON TO CONCLUDE THAT THE FACTS ARE OTHER THAN AS ADMINISTRATIVELY REPORTED AND DOCUMENTED. SEE B-173522(2), JANUARY 25, 1972; AND 50 COMP. GEN. 281, 289 (1970). IN THIS REGARD, OUR REVIEW OF THE PRICING OR COST ANALYSIS OF YOUR PROPOSAL BY SRS OFFICIALS UTILIZING YOUR FIGURES QUOTED AS REPRESENTING 1 DAY, NOT TOTAL DOCUMENTARY PRICES, DOES NOT EVIDENCE AN IMPROPRIETY IN THE PROCUREMENT PROCESS.

YOU HAVE ALLEGED THAT AUDIO PRODUCTIONS RECEIVED UNFAIR TREATMENT IN THE EVALUATION OF PROPOSALS IN THAT SRS USED ARBITRARY NUMBERS OF DAYS AND HOURS IN ESTIMATING THE COST OF PERFORMANCE OF THE VARIOUS SERVICES REQUIRED. IN THAT CONNECTION, IT IS STATED THAT A CONTRACTOR HAS CONSIDERABLE LEEWAY IN CONTROLLING THE AMOUNT OF TIME NECESSARY TO PERFORM THE SERVICES AND THAT SUCH FIGURES SHOULD HAVE EITHER BEEN REQUESTED OR ESTIMATED, NOT ARBITRARILY FIXED WITHOUT DISCUSSION OR NEGOTIATION.

THE SRS CONTRACTING OFFICER ADVISES THAT THE EVALUATION OF PRICE PROPOSALS WAS ACCOMPLISHED BY TAKING THE VARIOUS SERVICE PRICES PROPOSED BY OFFERORS AND PROJECTING OUT A TOTAL COST BASED ON A SINGLE DAY'S WORK FOR EACH MEMBER OF THE FILM CREW, EQUIPMENT RENTAL FOR ONE DAY, THE COST OF A ROLL OF FILM, AN HOURLY RATE FOR EDITING, DUPLICATION OF SCRIPTS AND ALL SERVICES RELATING TO RELEASING 300 PRINTS AND ALL PROCESSING, AND LAB COSTS FOR ONE SPOT OR DOCUMENTARY. THIS PROJECTION, IT WAS BELIEVED, PROVIDED FOR A UNIFORM AND EQUAL EVALUATION OF PRICE PROPOSALS. HEARST METROTONE NEWS WAS THE LOW OFFEROR ON THAT BASIS.

SRS DID NOT REQUEST OFFERORS TO PROPOSE HOURS OR DAYS FOR VARIOUS SERVICES BECAUSE OF THE MANY VARIABLES EXTANT IN THE PRODUCTION OF THIS TYPE OF DOCUMENTARY. IT IS REPORTED THAT MANY COSTS INVOLVED IN PRODUCTION WOULD FLUCTUATE, SUCH AS THE NUMBER OF DAYS NECESSARY TO COMPLETE FILMING, THE NUMBER OF FEET OF FILM NEEDED AND THE NUMBER OF EDITING HOURS NECESSARY. THAT BEING THE CASE, WE PERCEIVE NO OBJECTION TO THE SRS UTILIZATION OF A COMMON DENOMINATOR TO BE APPLIED TO ALL PROPOSERS EQUALLY. ALSO, IT WAS NOT UNTIL AFTER THE COMPUTATION OF THE COSTS BASED ON THE SRS COMMON DENOMINATOR THAT SRS PROJECTED TOTAL CONTRACT COSTS BASED ON DAYS AND HOURS NOT MADE KNOWN TO OFFERORS. ALTHOUGH IT WOULD HAVE BEEN PREFERABLE TO HAVE ADVISED THE PROSPECTIVE CONTRACTORS IN THE SOLICITATION OF THE METHOD OF PRICE EVALUATION, IT IS NOT APPARENT THAT AUDIO PRODUCTIONS SUFFERED ANY COMPETITIVE DISADVANTAGE.

YOUR PROTEST, UPON REVIEW, IS DENIED.