B-179295, FEB 19, 1974

B-179295: Feb 19, 1974

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ALTHOUGH LOW UNSUCCESSFUL OFFEROR UNDER NEGOTIATED PROCUREMENT CONTENDS THAT REASONS FOR REJECTION OF ITS PROPOSAL WERE MINOR BOTH TECHNICALLY AND AS TO COST AND COULD EASILY HAVE BEEN CORRECTED THROUGH NEGOTIATIONS. GAO FINDS NO BASIS IN RECORD TO DISAGREE WITH PROCURING ACTIVITY DETERMINATION THAT PROTESTER'S PROPOSAL WAS SO TECHNICALLY DEFICIENT AS TO REQUIRE MAJOR REVISION AND WAS NOT THEREFORE WITHIN COMPETITIVE RANGE. THERE WAS NO OBLIGATION UNDER APPLICABLE LAW AND REGULATION TO HOLD DISCUSSIONS TO IMPROVE PROPOSAL. DECISIONS CITED. (2) PROTEST AFTER AWARD THAT SPECIFICATIONS FOR PARTITION SYSTEM WERE UNDULY RESTRICTIVE IS NOT FOR CONSIDERATION ON MERITS BECAUSE UNDER 4 CFR 20.2(A) PROTEST BASED UPON ALLEGED IMPROPRIETIES IN SOLICITATION WHICH ARE APPARENT PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS MUST BE FILED PRIOR THERETO.

B-179295, FEB 19, 1974

(1) ALTHOUGH LOW UNSUCCESSFUL OFFEROR UNDER NEGOTIATED PROCUREMENT CONTENDS THAT REASONS FOR REJECTION OF ITS PROPOSAL WERE MINOR BOTH TECHNICALLY AND AS TO COST AND COULD EASILY HAVE BEEN CORRECTED THROUGH NEGOTIATIONS, GAO FINDS NO BASIS IN RECORD TO DISAGREE WITH PROCURING ACTIVITY DETERMINATION THAT PROTESTER'S PROPOSAL WAS SO TECHNICALLY DEFICIENT AS TO REQUIRE MAJOR REVISION AND WAS NOT THEREFORE WITHIN COMPETITIVE RANGE. THEREFORE, THERE WAS NO OBLIGATION UNDER APPLICABLE LAW AND REGULATION TO HOLD DISCUSSIONS TO IMPROVE PROPOSAL. SEE COMP. GEN. DECISIONS CITED. (2) PROTEST AFTER AWARD THAT SPECIFICATIONS FOR PARTITION SYSTEM WERE UNDULY RESTRICTIVE IS NOT FOR CONSIDERATION ON MERITS BECAUSE UNDER 4 CFR 20.2(A) PROTEST BASED UPON ALLEGED IMPROPRIETIES IN SOLICITATION WHICH ARE APPARENT PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS MUST BE FILED PRIOR THERETO.

TO CONWED CORP.:

ON MAY 22, 1973, REQUEST FOR PROPOSALS (RFP) NO. F33601-73-R-0220 WAS ISSUED BY THE BASE PROCUREMENT BRANCH, WRIGHT-PATTERSON AIR FORCE BASE, OHIO. THE SUBJECT SOLICITATION, AS AMENDED, WAS ISSUED AS A NEGOTIATED PROCUREMENT PURSUANT TO THE AUTHORITY OF 10 U.S.C. 2304(A)(10), AND ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-210.2(XIII), WHICH PERMITS NEGOTIATION WHEN IT IS IMPOSSIBLE TO DRAFT, FOR A SOLICITATION OF BIDS, ADEQUATE SPECIFICATIONS. THE RFP SOLICITED PROPOSALS FOR A PARTITION SYSTEM (PANELS) FOR A BUILDING LOCATED AT WRIGHT-PATTERSON AIR FORCE BASE. THE OFFERS RECEIVED UNDER THE RFP WERE OPENED ON JUNE 22, 1973. TWO OFFERORS SUBMITTED PROPOSALS: FLEX-Y-INDUSTRIES AND CONWED CORPORATION, WITH PRICES OF $385,776.40 AND $303,182.85, RESPECTIVELY. TECHNICAL EVALUATION WAS CONDUCTED AND ON THE BASIS OF THE RESULTS THE CONTRACTING OFFICER MADE A DETERMINATION THAT CONWED'S PROPOSAL WAS TECHNICALLY UNACCEPTABLE AND WAS THEREFORE NOT IN A COMPETITIVE RANGE FOR THE PURPOSE OF NEGOTIATIONS WITHIN THE MEANING OF ASPR 3-805.1(A). ALTHOUGH SOME DISCUSSIONS WERE HELD BETWEEN AIR FORCE AND CONWED PRIOR TO JUNE 22, 1973, NONE WERE HELD AFTER THE DETERMINATION OF TECHNICAL NONACCEPTABILITY WAS MADE. AWARD WAS MADE TO FLEX-Y-INDUSTRIES ON JUNE 30, 1973, FOR OVER $82,000 IN EXCESS OF THE CONWED PROPOSAL.

CONWED CONTENDS THAT THE REASONS FOR REJECTION OF ITS PROPOSAL WERE MINOR IN NATURE AND COULD EASILY HAVE BEEN CORRECTED FOR A MINIMAL INCREASE IN COST IF THEY HAD BEEN BROUGHT TO ITS ATTENTION BY THE PROCURING ACTIVITY. IT IS THEREFORE CONTENDED THAT THE PROPOSAL WAS WITHIN THE COMPETITIVE RANGE AND APPLICABLE LAW AND REGULATION REQUIRED DISCUSSION WITH CONWED. CONWED FURTHER CONTENDS THAT THE STABILIZER FOOT AND PANEL THICKNESS REQUIREMENTS WERE IN EXCESS OF THE GOVERNMENT'S MINIMUM NEEDS AND WERE UNDULY RESTRICTIVE OF COMPETITION.

THE PROCURING ACTIVITY HAS FURNISHED OUR OFFICE WITH A STATEMENT OF THE SPECIFIC AREAS IN WHICH THE CONWED PROPOSAL WAS FOUND TO BE TECHNICALLY DEFICIENT. THE DEFICIENCIES ARE THEREIN ILLUSTRATED AS FOLLOWS:

"SPECIFICATIONS CONWED'S PROPOSAL

1. PANEL THICKNESS 1 3/8" - 1 7/8" 2 1/2" THICK

2. REQUIRES CENTER TO BE FILLED MINERAL WOOL, HARDBOARD, AND

WITH FIBERGLASS FIBERGLASS AND WIRE MESH

3. FIBERGLASS NO LESS THAN 3 POUND NO DENSITY FOR FIBERGLASS;

DENSITY 3 POUND FOR MINERAL WOOL

4. RIGID, FABRIC COVERED SOUND SOFT EXTERIOR, NO SIDE RIGIDITY

ABSORBING PANELS

5. PANELS WILL NOT BE ATTACHED TO "RECOMMENDS" THAT BASE OF POSTS

FLOORS OR CEILING SUPPORTING DOORS BE ANCHORED

(IMPLIES THAT THEY NEED TO BE

ANCHORED)

6. FOOT OF POST WILL ALLOW FOR USE NO STABILIZER BASE INDICATED

OF EITHER A STABILIZER OR LEVELER (SAMPLE PROVIDED LATER:

BASE UNSATISFACTORY, PER EVALUATION)

7. BOTH TYPE BASES (STABILIZER OR NO STABILIZER FOOT IN PROPOSAL.

LEVELER) ALLOW AT LEAST 3" HEIGHT SAMPLE PROVIDED DID NOT ALLOW

ADJUSTMENT FOR 3" HEIGHT ADJUSTMENT

8. LEGS OF STABILIZER FOOT WILL LIE NO STABILIZER FOOT IN PROPOSAL.

FLAT ON FLOOR AND WILL NOT EXCEED SAMPLE PROVIDED EXCEEDS 3/8"

3/8" THICKNESS DUE TO BEND IN FOOT WHICH DOES

NOT LIE FLAT TO FLOOR. IF IT

DID, BOLT WOULD DAMAGE FLOOR.

9. TRIM OF PANELS TO BE METAL PANELS HAVE PLASTIC EDGE

MOLDING INSTEAD OF METAL"

ASPR 3-805.1(A) REQUIRES DISCUSSIONS ONLY WITH RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED. THE TERM "OTHER FACTORS" HAS BEEN HELD TO INCLUDE THE TECHNICAL ACCEPTABILITY OF PROPOSALS. SEE 46 COMP. GEN. 606, 610 (1967). WITH RESPECT TO TECHNICAL CONSIDERATIONS, WE RECOGNIZE THAT A REASONABLE DEGREE OF ADMINISTRATIVE DISCRETION IS PERMISSIBLE IN DETERMINING WHETHER A PROPOSAL IS WITHIN THE COMPETITIVE RANGE. B 174125, MARCH 28, 1972. THIS CONNECTION, WE SAID IN THAT CASE:

"*** IF AN INITIALLY UNACCEPTABLE PROPOSAL IS SUBJECT TO BEING MADE ACCEPTABLE, AN OPPORTUNITY TO SATISFY THE REQUIREMENTS OF THE GOVERNMENT SHOULD BE PERMITTED THROUGH THE USE OF DISCUSSIONS. SEE 51 COMP. GEN. (B- 173522, JANUARY 25, 1972).

"HOWEVER, THERE ARE SOME EXCEPTIONS. *** THERE IS NO OBLIGATION TO HOLD DISCUSSIONS IN ORDER TO IMPROVE AN OTHERWISE UNACCEPTABLE PROPOSAL WHERE ACCEPTABILITY CAN ONLY BE OBTAINED THROUGH A MAJOR REVISION OF THE PROPOSAL. SEE 51 COMP. GEN. (B-173522), SUPRA. IN THE INSTANT CASE, NTDC DETERMINED THAT MDEC'S PROPOSAL WAS TECHNICALLY UNACCEPTABLE AND NOT WITHIN THE COMPETITIVE RANGE FOR FAILURE TO CONFORM TO AN ESSENTIAL AND CLEARLY SPECIFIED REQUIREMENT OF THE RFP. MOREOVER, IT CONCLUDED THAT ONLY A MAJOR REVISION OF THE PROPOSAL WOULD MAKE IT ACCEPTABLE. IN SUCH CIRCUMSTANCES, AND KEEPING IN MIND THAT THE DETERMINATION OF COMPETITIVE RANGE IS A MATTER OF JUDGMENT, WE CANNOT SAY ON THE RECORD BEFORE US THAT MDEC'S PROPOSAL WAS WITHIN THE COMPETITIVE RANGE SO AS TO HAVE REQUIRED FURTHER DISCUSSIONS WITH THAT FIRM."

THE RECORD IN THE INSTANT CASE INDICATES THAT CONWED'S PROPOSAL WAS CAREFULLY CONSIDERED AND, AS NOTED ABOVE, THE DEFICIENCIES THEREIN WERE DOCUMENTED IN DETAIL BY THE EVALUATION PERSONNEL WHICH CONCLUDED THAT ITS PROPOSAL COULD NOT BE MADE ACCEPTABLE WITHOUT MAJOR REVISION. IN VIEW OF THE NUMBER OF DEVIATIONS FROM SPECIFIC REQUIREMENTS WE CANNOT CONCLUDE THAT THE EVALUATORS DID NOT HAVE SUBSTANTIAL SUPPORT FOR THEIR CONCLUSION, OR THAT THE DEFICIENCIES IN CONWED'S PROPOSAL WERE MINOR AND SHOULD HAVE BEEN RESOLVED IN NEGOTIATIONS. ALTHOUGH CONWED'S PROPOSAL WAS WITHIN THE COMPETITIVE RANGE PRICE WISE, IT WAS DETERMINED SO TECHNICALLY DEFICIENT THAT WE PERCEIVE OF NO BASIS TO OBJECT TO THE AGENCY'S DECISION NOT TO CONDUCT NEGOTIATIONS WITH CONWED. SEE B 168190, FEBRUARY 24, 1970, AND B- 171030, JUNE 22, 1971.

WITH REGARD TO THE CONTENTION THAT CERTAIN OF THE SPECIFICATIONS WERE RESTRICTIVE, SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 CFR 20.2(A), STATES IN PART THAT:

"*** PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS *** SHALL BE FILED PRIOR TO *** THE CLOSING DATE FOR RECEIPT OF PROPOSALS."

SINCE THE ALLEGED RESTRICTIVENESS OF THE SPECIFICATIONS WAS OR SHOULD HAVE BEEN APPARENT TO CONWED PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS, THE PROTEST AFTER AWARD WAS CLEARLY UNTIMELY AND IS THEREFORE NOT FOR CONSIDERATION ON THE MERITS.