B-177008(2), JAN 31, 1973

B-177008(2): Jan 31, 1973

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AS WELL AS THE DRAFTING OF SPECIFICATIONS TO MEET THOSE NEEDS ARE WITHIN THE BROAD DISCRETION OF THE AGENCY. TO GLOBAL MARINE ENGINEERING COMPANY: REFERENCE IS MADE TO YOUR TELEFAX MESSAGE OF SEPTEMBER 23. THE WORK WAS TO BE ORDERED UNDER A TIME AND MATERIAL INDEFINITE QUANTITY TYPE OF CONTRACT FOR A PERIOD OF ONE YEAR. THE MINIMUM QUALIFICATIONS FOR CERTAIN REQUIRED PERSONNEL WERE LISTED IN F-3.2 AS FOLLOWS: "A. PROPOSALS WERE RECEIVED FROM SIX FIRMS AND AFTER INITIAL EVALUATION. WERE FOUND TO BE IN THE COMPETITIVE RANGE. YOU WERE ADVISED THAT AMONG THE ELEMENTS OF YOUR PROPOSAL. WAS OF PRINCIPAL CONCERN. YOU WERE ALSO ADVISED THAT ADDITIONAL DATA WOULD BE REQUIRED IN ORDER TO EVALUATE YEARS OF EXPERIENCE OF ALL OF YOUR PERSONNEL EXCEPT THREE NAVAL ARCHITECTS AND ONE ENGINEERING TECHNICIAN.

B-177008(2), JAN 31, 1973

BID PROTEST - EXPERIENCE AND EDUCATION REQUIREMENTS DECISION DENYING THE PROTEST OF GLOBAL MARINE ENGINEERING COMPANY AGAINST AWARD OF A CONTRACT UNDER AN RFP ISSUED BY THE U.S. NAVAL REGIONAL PROCUREMENT OFFICE, LOS ANGELES, CALIF., FOR SHIP REPAIRS. THE DETERMINATION OF THE NEEDS OF AN AGENCY, INCLUDING MINIMUM EXPERIENCE AND EDUCATIONAL REQUIREMENTS FOR CONTRACTOR PERSONNEL, AS WELL AS THE DRAFTING OF SPECIFICATIONS TO MEET THOSE NEEDS ARE WITHIN THE BROAD DISCRETION OF THE AGENCY. ANY OBJECTIONS CONCERNING THESE DETERMINATIONS MUST BE MADE PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS. 4 CFR 20.2(A).

TO GLOBAL MARINE ENGINEERING COMPANY:

REFERENCE IS MADE TO YOUR TELEFAX MESSAGE OF SEPTEMBER 23, 1972, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS N00123-72-R-2869 (HEREAFTER RFP), ISSUED BY THE UNITED STATES NAVAL REGIONAL PROCUREMENT OFFICE (NRPOLA), LOS ANGELES, CALIFORNIA.

THE RFP REQUESTED PROPOSALS FOR THE DESIGN AND DEVELOPMENT OF PLANS, PLAN SCHEDULES, AND SPECIFICATIONS NECESSARY FOR THE ACCOMPLISHMENT OF REPAIRS, ALTERATIONS AND IMPROVEMENTS TO NAVAL SHIPS. THE WORK WAS TO BE ORDERED UNDER A TIME AND MATERIAL INDEFINITE QUANTITY TYPE OF CONTRACT FOR A PERIOD OF ONE YEAR. PARAGRAPH C-25.3 OF THE RFP REQUIRED THAT PROPOSALS INCLUDE INFORMATION AS TO THE EXPERIENCE, EDUCATION, QUALIFICATIONS AND LEVEL OF SECURITY FOR ALL ENGINEERING AND TECHNICAL PERSONNEL PROPOSED FOR ASSIGNMENT TO THE CONTRACT. PARAGRAPH C-36 SPECIFICALLY STATED THAT MEMBERS OF THE OFFEROR'S PROPOSED PERFORMANCE TEAM MUST POSSESS THE QUALIFICATIONS SET FORTH IN PARAGRAPH F-3. THE MINIMUM QUALIFICATIONS FOR CERTAIN REQUIRED PERSONNEL WERE LISTED IN F-3.2 AS FOLLOWS:

"A. ENGINEERING GROUP

1. SENIOR DESIGN ENGINEER

(A) BACHELOR OF SCIENCE DEGREE IN ENGINEERING OR NAVAL ARCHITECTURE AS APPROPRIATE TO ASSIGNED COGNIZANCE.

(B) MINIMUM OF TEN (10) YEARS PRACTICAL EXPERIENCE, AT A PROFESSIONAL LEVEL, IN RESPONSIBLE ENGINEERING DUTIES, INCLUDING THE FOLLOWING WHICH MAY BE GAINED CONCURRENTLY:

(I) MINIMUM OF TWO (2) YEARS PROGRESSIVE DESIGN EXPERIENCE IN SHIP DESIGN FIELD.

(II) TWO (2) YEARS EXPERIENCE INVOLVING DESIGN AND WORKING PLAN DEVELOPMENT FOR CONSTRUCTION, CONVERSION OR MODERNIZATION OF U.S. NAVAL SHIPS (DOES NOT INCLUDE MARITIME SHIP DESIGN) IN THE SPECIALTY REQUIRED HEREIN.

2. ENGINEER

(A) BACHELOR OF SCIENCE IN ENGINEERING OR NAVAL ARCHITECTURE (AS APPROPRIATE TO COGNIZANCE).

(B) MINIMUM OF SIX (6) YEARS PRACTICAL EXPERIENCE, AT A PROFESSIONAL LEVEL, IN RESPONSIBLE ENGINEERING DUTIES, INCLUDING THE FOLLOWING WHICH MAY BE GAINED CONCURRENTLY:

(I) MINIMUM OF ONE (1) YEAR PROGRESSIVE DESIGN EXPERIENCE IN THE SHIP DESIGN FIELD.

(II) ONE (1) YEAR EXPERIENCE INVOLVING DESIGN AND WORKING PLAN DEVELOPMENT FOR CONSTRUCTION, CONVERSION OR MODERNIZATION OF U.S. NAVAL SHIPS (DOES NOT INCLUDE MARITIME SHIP DESIGN) IN THE SPECIALTY REQUIRED HEREIN."

PROPOSALS WERE RECEIVED FROM SIX FIRMS AND AFTER INITIAL EVALUATION, FIVE FIRMS, INCLUDING YOUR FIRM, WERE FOUND TO BE IN THE COMPETITIVE RANGE. LETTER OF AUGUST 9, 1972, REQUESTING YOUR BEST AND FINAL OFFER, YOU WERE ADVISED THAT AMONG THE ELEMENTS OF YOUR PROPOSAL, WHICH HAD BEEN DISCUSSED PREVIOUSLY IN TELEPHONE CONVERSATIONS, THE LACK OF QUALIFIED SENIOR MECHANICAL, ELECTRICAL, AND ELECTRONICS ENGINEERS, AND THE LACK OF QUALIFIED ENGINEERS IN ALL CATEGORIES, WAS OF PRINCIPAL CONCERN. YOU WERE ALSO ADVISED THAT ADDITIONAL DATA WOULD BE REQUIRED IN ORDER TO EVALUATE YEARS OF EXPERIENCE OF ALL OF YOUR PERSONNEL EXCEPT THREE NAVAL ARCHITECTS AND ONE ENGINEERING TECHNICIAN. YOUR ATTENTION WAS INVITED TO PARAGRAPHS C-36 AND F-3.2 OF THE RFP AND YOU WERE ADVISED THAT ANY PROPOSAL WHICH DID NOT OFFER PERSONNEL MEETING THE MINIMUM QUALIFICATIONS WOULD BE REJECTED AS UNACCEPTABLE.

YOU STATE THAT BY LETTER OF SEPTEMBER 13, 1972, WHICH NOTIFIED YOU THAT YOUR PROPOSAL WAS UNACCEPTABLE AND THAT THE AWARD WAS MADE TO ANOTHER FIRM, THE CONTRACTING OFFICER IDENTIFIED ONLY TWO PERSONNEL CATEGORIES AS LACKING CERTAIN REQUIRED QUALIFICATIONS, I.E., THE SENIOR MECHANICAL ENGINEER AND THE ELECTRONICS ENGINEER. IT IS YOUR CONTENTION THAT YOUR PROPOSED SENIOR MECHANICAL ENGINEER HAS THE NECESSARY EDUCATIONAL REQUIREMENTS. YOU STATE THAT HE WAS ISSUED A NATIONAL CERTIFICATE BY THE RUTHERFORD COLLEGE OF TECHNOLOGY IN NEWCASTLE, ENGLAND, AND THAT THIS CERTIFICATE IS THE "TECHNICAL EQUIVALENT" OF A BACHELOR OF SCIENCE DEGREE IN ENGINEERING. IN REGARD TO YOUR PROPOSED ELECTRONICS ENGINEER, YOU STATE THAT HIS PRACTICAL EXPERIENCE EQUALS OR EXCEEDS THE SOLICITATION REQUIREMENTS.

IT IS THE NAVY'S POSITION THAT THE BRITISH NATIONAL CERTIFICATE IS EQUIVALENT TO ONLY AN ASSOCIATE DEGREE IN THE UNITED STATES AND THAT SUCH CERTIFICATE DOES NOT MEET THE MINIMUM REQUIREMENT OF A BACHELOR OF SCIENCE DEGREE IN ENGINEERING AS IS SPECIFIED IN THE RFP. IT IS REPORTED THAT FOR THE SAME REASON THE OTHER HOLDERS OF NATIONAL CERTIFICATES IN YOUR PROPOSAL - THE NAVAL ARCHITECT, THE MECHANICAL ENGINEER AND THE ELECTRICAL ENGINEER - WERE ALSO DISQUALIFIED. YOU DO NOT CONTEND THAT THE BRITISH NATIONAL CERTIFICATE IS THE ACTUAL EQUIVALENT OF A BACHELOR OF SCIENCE DEGREE IN ENGINEERING, BUT ONLY THAT IT IS THE "TECHNICAL EQUIVALENT" OF SUCH A DEGREE. YOU SAY THAT MARINE ENGINEERS EDUCATED IN GREAT BRITAIN, AND POSSESSING DEGREES NO HIGHER THAN THE NATIONAL CERTIFICATE HOLD FULLY RESPONSIBLE ENGINEERING POSITIONS THROUGHOUT THE UNITED STATES SHIPBUILDING INDUSTRY. YOU ALSO SUBMIT A COMPARISON OF THE APPROPRIATE NUMBER OF CLASSROOM HOURS REQUIRED FOR A NATIONAL CERTIFICATE, AND FOR A BACHELOR OF SCIENCE IN MECHANICAL ENGINEERING AT THE CALIFORNIA STATE UNIVERSITY IN SAN DIEGO, TO DEMONSTRATE THAT THE ENGINEERING EDUCATION OF YOUR PROPOSED SENIOR MECHANICAL ENGINEER IS "TECHNICALLY EQUIVALENT, "FOR ALL PRACTICAL PURPOSES, TO THAT REQUIRED FOR THE DEGREE AT CALIFORNIA STATE UNIVERSITY. WHILE YOU DO NOT EXPLAIN PRECISELY WHAT YOU MEAN BY THE TERM "TECHNICALLY EQUIVALENT" AS IT IS USED IN YOUR PROTEST, WE ARE NOT CONVINCED THAT THE COMPARISON INDICATES THAT THE NATIONAL CERTIFICATE EVIDENCES AN EDUCATION EQUAL TO THAT SHOWN BY THE BACHELOR OF SCIENCE DEGREE SINCE WE NOTE THAT THE COMPARISON SHOWS SUBSTANTIALLY MORE CLASS WORK IS REQUIRED FOR THE DEGREE THAN IS REQUIRED FOR THE NATIONAL CERTIFICATE.

SINCE A BACHELOR OF SCIENCE DEGREE WAS CLEARLY STATED IN THE RFP AS A MINIMUM REQUIREMENT FOR ALL ENGINEERS, THE EFFECT OF YOUR CONTENTION IS THAT NAVY OVERSTATED ITS MINIMUM NEEDS IN SUCH RESPECT AND THAT THE LESSER EDUCATIONAL LEVEL OF A NATIONAL CERTIFICATE FOR THE ENGINEERS WAS ADEQUATE FOR THE AGENCY'S ACTUAL NEEDS. IT IS WELL ESTABLISHED THAT THE DETERMINATION OF THE NEEDS OF AN AGENCY, AND THE DRAFTING OF SPECIFICATIONS DESIGNED TO MEET THOSE NEEDS, ARE RESPONSIBILITIES OF THE PARTICULAR AGENCY CONCERNED. HERE, NAVY HAS EXERCISED THAT RESPONSIBILITY BY DETERMINING THAT A BACHELOR OF SCIENCE DEGREE WAS THE MINIMUM LEVEL OF EDUCATION PERMITTED FOR ALL ENGINEERS ENGAGED IN THE PERFORMANCE OF THE WORK. SINCE, IT IS OUR VIEW THAT YOU HAVE NOT CLEARLY DEMONSTRATED THAT THE SPECIFIED REQUIREMENT FOR A BACHELOR OF SCIENCE DEGREE ACTUALLY EXCEEDS THE AGENCY'S MINIMUM NEEDS, AND IT IS RECOGNIZED THAT A WIDE RANGE OF DISCRETION IS VESTED IN THE AGENCY IN DETERMINING ITS NEEDS, WE FIND NO BASIS ON WHICH TO OBJECT TO THE REJECTION OF YOUR OFFER FOR PROPOSING THE USE OF SOME ENGINEERS WHO HAD LESSER EDUCATIONAL QUALIFICATIONS THAN THOSE SPECIFIED. IN ANY EVENT, SINCE YOU DID NOT OBJECT TO THE REQUIREMENTS FOR THE DEGREE UNTIL AFTER THE AWARD OF THE CONTRACT, RELIEF BY THIS OFFICE WOULD BE PRECLUDED BY OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 CFR 20.2(A), WHICH REQUIRE THAT COMPLAINTS AGAINST PROVISIONS OF AN RFP THAT ARE APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS BE FILED PRIOR TO THAT DATE.

INASMUCH AS WE HAVE CONCLUDED FOR THE REASONS STATED ABOVE THAT THE RECORD AFFORDS NO BASIS FOR OBJECTION BY THIS OFFICE TO THE REJECTION OF YOUR PROPOSAL, THE OTHER ASPECTS OF YOUR PROTEST REGARDING THE SUFFICIENCY OF YOUR PROPOSAL AND THE QUALIFICATIONS OF OTHER PROPOSED PERSONNEL, ARE CONSIDERED TO BE ACADEMIC.

WITH RESPECT TO YOUR CONTENTION THAT YOU WERE NOT GIVEN AN OPPORTUNITY TO NEGOTIATE IN CONFERENCE ON ANY OF THE POINTS CONSIDERED TO BE QUESTIONABLE OR NONRESPONSIVE, THERE IS NO MANDATORY REQUIREMENT THAT DISCUSSIONS OF AN OFFEROR'S PROPOSAL BE CONDUCTED IN AN ACTUAL SIT DOWN CONFERENCE WITH PROCUREMENT OFFICIALS. HOWEVER, WE ARE CALLING YOUR CONTENTION TO THE ATTENTION OF THE SECRETARY OF THE NAVY SINCE THE RECORD DOES NOT INDICATE THAT CIRCUMSTANCES PRECLUDED SUCH CONFERENCES WITH THOSE OFFERORS IN THE COMPETITIVE RANGE, OR THAT SUCH CONFERENCES DETAILING THE SPECIFIC DEFICIENCIES IN PROPOSALS MIGHT NOT HAVE FINALLY RESULTED IN A GREATER NUMBER OF ACCEPTABLE PROPOSALS.

FOR THE REASONS SET OUT ABOVE, YOUR PROTEST IS DENIED.