B-180795, SEP 16, 1974

B-180795: Sep 16, 1974

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RECORD DOES NOT SUPPORT OFFEROR'S CONTENTION THAT PURPOSE OF OBTAINING ADDITIONAL TECHNICAL DATA FROM OFFEROR REGARDING ITS PROPOSAL WAS TO GET BASIS TO DISQUALIFY PROPOSAL. OPPORTUNITY WAS PROVIDED TO ALLOW OFFEROR TO SUBMIT ADDITIONAL DATA TO CORRECT PROPOSAL THROUGH WRITTEN AND ORAL INQUIRIES ADDRESSED TO OFFEROR. 2. PROVIDING OFFEROR OPPORTUNITY TO CLARIFY TECHNICAL ASPECTS OF PROPOSAL AFTER INITIAL SUBMISSION IS NOT INDICATION THAT PROPOSAL IS ACCEPTABLE AND THAT ALL THAT REMAINS IS COST NEGOTIATION. SINCE DETERMINATION THAT PROPOSAL IS WITHIN COMPETITIVE RANGE FOR PURPOSES OF DISCUSSION DOES NOT MEAN THAT PROPOSAL IS FREE OF DEFICIENCIES. 3. GAO WILL NOT EVALUATE TECHNICAL PROPOSALS OR SUBSTITUTE ITS JUDGMENT FOR THAT OF CONTRACTING OFFICIALS BY MAKING INDEPENDENT DETERMINATION AS TO WHICH OFFER SHOULD BE RATED FIRST AND RECEIVE AWARD. 4.

B-180795, SEP 16, 1974

1. RECORD DOES NOT SUPPORT OFFEROR'S CONTENTION THAT PURPOSE OF OBTAINING ADDITIONAL TECHNICAL DATA FROM OFFEROR REGARDING ITS PROPOSAL WAS TO GET BASIS TO DISQUALIFY PROPOSAL, SINCE, WHEN CONTRACTING OFFICER BECAME AWARE THAT OFFEROR HAD BEEN DISQUALIFIED FOR DEFICIENCIES NOT BROUGHT TO ATTENTION DURING DISCUSSIONS OF PROPOSAL, OPPORTUNITY WAS PROVIDED TO ALLOW OFFEROR TO SUBMIT ADDITIONAL DATA TO CORRECT PROPOSAL THROUGH WRITTEN AND ORAL INQUIRIES ADDRESSED TO OFFEROR. 2. PROVIDING OFFEROR OPPORTUNITY TO CLARIFY TECHNICAL ASPECTS OF PROPOSAL AFTER INITIAL SUBMISSION IS NOT INDICATION THAT PROPOSAL IS ACCEPTABLE AND THAT ALL THAT REMAINS IS COST NEGOTIATION, SINCE DETERMINATION THAT PROPOSAL IS WITHIN COMPETITIVE RANGE FOR PURPOSES OF DISCUSSION DOES NOT MEAN THAT PROPOSAL IS FREE OF DEFICIENCIES. 3. GAO WILL NOT EVALUATE TECHNICAL PROPOSALS OR SUBSTITUTE ITS JUDGMENT FOR THAT OF CONTRACTING OFFICIALS BY MAKING INDEPENDENT DETERMINATION AS TO WHICH OFFER SHOULD BE RATED FIRST AND RECEIVE AWARD. 4. GAO IS UNABLE TO PROVIDE COPIES OF EXHIBITS THAT WERE NOT FURNISHED TO PROTESTANT BY CONTRACTING AGENCY BECAUSE AGENCY CONSIDERED DOCUMENTS PRIVILEGED, SINCE DETERMINATION CONCERNING WHAT IS PROTECTED FROM PUBLIC DOMAIN INITIALLY IS THAT OF CONTRACTING AGENCY; HOWEVER, GAO HAS REVIEWED EXHIBITS AND DECISION IS REACHED WITH FULL KNOWLEDGE OF CONTENTS.

TECHPLAN CORPORATION:

THE TECHPLAN CORPORATION HAS PROTESTED THE REJECTION OF ITS PROPOSAL UNDER REQUEST FOR QUOTATIONS (RFQ) NO. DAAB07-74-Q-0056, ISSUED BY THE UNITED STATES ARMY ELECTRONICS COMMAND FOR 24 MONTHS OF SYSTEMS ENGINEERING SERVICES TO DEVELOP A TECHNICAL INTERFACE DESIGN PLAN IN SUPPORT OF JOINT CHIEFS OF STAFF DIRECT GROUND AND AMPHIBIOUS MILITARY OPERATIONS.

THE BASIS OF THE TECHPLAN PROTEST ARE:

1. "TECHPLAN CORPORATION HAS BEEN ENCOURAGED TO SUBMIT TECHNICAL DATA OF EXTRAORDINARY DETAIL AND TO THE POINT THAT USAECOM COULD FIND A JUSTIFICATION FOR ITS ORIGINAL INTENT TO DISQUALIFY TECHPLAN."

2. "THE AREAS OF DEFICIENCY CITED IN REFERENCE (G) ARE SO VAGUE AS TO BE INCONTESTABLE AND CONVERSELY, APPLICABLE TO THE TECHNICAL APPROACH OF ANY CORPORATION THAT USAECOM MIGHT CHOOSE TO DISQUALIFY." (REFERENCE (G) IS A LETTER OF JUNE 17, 1974, FROM THE CONTRACTING OFFICER TO TECHPLAN, SETTING FORTH THE BASIS UPON WHICH THE TECHPLAN PROPOSAL WAS DETERMINED TO BE TECHNICALLY UNACCEPTABLE.)

FURTHER, TECHPLAN HAS REQUESTED THAT THE PROCUREMENT BE REVIEWED TO ASCERTAIN WHETHER IT WAS EXCLUDED FROM COMPETITION BECAUSE IT IS A SMALL BUSINESS, THERE WAS A PREDETERMINED PREFERENCE TO CONTRACT WITH ANOTHER OFFEROR, OR THERE WAS A PREFERENCE FOR A TECHNICAL APPROACH PRIOR TO THE ISSUANCE OF THE RFQ WHICH WAS NOT MADE A PART OF THE RFQ. IN ADDITION, TECHPLAN HAS COMPLAINED THAT CERTAIN EXHIBITS SUBMITTED TO OUR OFFICE WITH THE ADMINISTRATIVE REPORT WERE NOT FURNISHED TO IT BY THE ARMY BECAUSE THE ARMY CONSIDERED THE EXHIBITS PRIVILEGED INFORMATION. TECHPLAN STATES THAT THE EXHIBITS MAY HAVE A SUBSTANTIAL BEARING UPON ITS POSITION AND THEREFORE REQUESTS THAT OUR OFFICE FURNISH THE EXHIBITS. FINALLY, SINCE THE RFQ SOLICITED 16 MAN-YEARS OF SYSTEM ENGINEERING SERVICES OVER A 24- MONTH PERIOD, TECHPLAN QUESTIONS WHETHER THE AWARD WAS MADE ON ANY OTHER BASIS.

WE HAVE REVIEWED THE RECORD BEFORE OUR OFFICE AND ARE UNABLE TO FIND THAT THE PURPOSE OF OBTAINING ADDITIONAL TECHNICAL DATA FROM TECHPLAN WAS TO GET A BASIS TO DISQUALIFY TECHPLAN FROM THE PROCUREMENT. RATHER, THE RECORD SHOWS THAT WHEN IT CAME TO THE ATTENTION OF THE CONTRACTING OFFICER THAT TECHPLAN HAD BEEN DISQUALIFIED FROM COMPETITION FOR DEFICIENCIES THAT HAD NOT BEEN BROUGHT TO ITS ATTENTION DURING THE PERIOD THAT IT HAD BEEN ALLOWED TO FURNISH ADDITIONAL TECHNICAL DATA TO CORRECT ITS PROPOSAL, IT WAS PROVIDED A FURTHER OPPORTUNITY TO IMPROVE UPON THE PROPOSAL. IN THAT CONNECTION, OF THE SEVEN PROPOSALS RECEIVED ORIGINALLY IN RESPONSE TO THE RFQ, THREE WERE DETERMINED TO BE UNACCEPTABLE AND FOUR "SUSCEPTIBLE TO BECOMING ACCEPTABLE." TECHPLAN RECEIVED THE LATTER RATING. A RATING OF "SUSCEPTIBLE TO BECOMING ACCEPTABLE" IS NOT INDICATIVE OF AN INTENT TO DISQUALIFY THE PROPOSAL. IN FACT, THE CONTRACTING OFFICER SEEMS TO HAVE ACTED OUT OF AN ABUNDANCE OF CAUTION TO PROVIDE TECHPLAN WITH AN OPPORTUNITY TO CURE THE PROPOSAL DEFICIENCIES AND BRING THE PROPOSAL UP TO AN ACCEPTABLE LEVEL BY REOPENING DISCUSSIONS THROUGH WRITTEN AND ORAL INQUIRIES. DISCUSSIONS ALSO WERE HELD WITH THE OTHER OFFERORS WHO WERE RATED THE SAME AS TECHPLAN INITIALLY AND WHO WERE RATED "ACCEPTABLE" AFTER THE FIRST ROUND OF DISCUSSIONS. AS A RESULT OF THAT PROCEDURE, THERE WAS A CHANGE IN THE ORDER OF SUPERIORITY OF PROPOSALS. IN THE CIRCUMSTANCES, THE REOPENING OF DISCUSSIONS AFTER TECHPLAN'S PROTEST THAT IT WAS IMPROPERLY DISQUALIFIED FROM NEGOTIATIONS DOES NOT APPEAR TO HAVE BEEN FOR ANY PURPOSE OTHER THAN TO PERMIT TECHPLAN AND OTHER OFFERORS IN A COMPETITIVE RANGE TO IMPROVE UPON THEIR PROPOSALS.

FROM A REVIEW OF TECHPLAN PROTEST CORRESPONDENCE, IT APPEARS THAT IT IS LABORING UNDER THE MISCONCEPTION THAT, SINCE IT WAS PROVIDED AN OPPORTUNITY TO CLARIFY TECHNICAL ASPECTS OF THE PROPOSAL AFTER THE INITIAL SUBMISSION, ALL THAT REMAINED WAS COST NEGOTIATION. HOWEVER, AS INDICATED ABOVE, THE INITIAL PROPOSAL AFTER EVALUATION WAS RATED AS "SUSCEPTIBLE TO BECOMING ACCEPTABLE." ASPR 3-805.1 PROVIDES FOR WRITTEN OR ORAL DISCUSSIONS WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE. ALTHOUGH THE CONDUCT OF DISCUSSIONS IS AN INDICATION THAT THE PROPOSAL HAS BEEN DETERMINED TO BE WITHIN THE "COMPETITIVE RANGE," THAT IS NOT AN INDICTION THAT COST NEGOTIATION IS THE ONLY REMAINING ITEM. ASPR 3-805.3 PROVIDES FOR DISCUSSIONS OF DEFICIENCIES WITH ANY OFFEROR WHO SUBMITS A PROPOSAL WITHIN A COMPETITIVE RANGE AND A REASONABLE OPPORTUNITY FOR THE OFFEROR TO CORRECT THEM. IN 51 COMP. GEN. 431, 433 (1972), IT WAS STATED:

"IT IS A WELL-ESTABLISHED PRINCIPLE IN NEGOTIATED PROCUREMENTS THAT SUCH DISCUSSIONS MUST BE MEANINGFUL AND FURNISH INFORMATION TO ALL OFFERORS WITHIN THE COMPETITIVE RANGE AS TO THE AREAS IN WHICH THEIR PROPOSALS ARE DEFICIENT SO THAT COMPETITIVE OFFERORS ARE GIVEN AN OPPORTUNITY TO FULLY SATISFY THE GOVERNMENT'S REQUIREMENTS. A BASIC PURPOSE OF SUCH PROCUREMENTS IS NOT TO DISCARD INITIAL PROPOSALS, BECAUSE THEY MAY NOT BE FULLY RESPONSIVE TO STATED SPECIFICATIONS, BUT TO DETERMINE WHETHER SUCH DEFICIENT PROPOSALS ARE REASONABLY SUBJECT TO BEING MADE ACCEPTABLE THROUGH DISCUSSIONS."

SEE ALSO B-174125, MARCH 28, 1972.

ALTHOUGH TECHPLAN HAS CONTENDED THAT THE LETTER THAT REJECTED ITS PROPOSAL ON THE BASIS THAT IT WAS UNACCEPTABLE LACKED SPECIFICITY AND HAS REQUESTED OUR OFFICE TO REVIEW THE TECHNICAL EVALUATION TO DETERMINE IF TECHPLAN WAS DISQUALIFIED ON VALID TECHNICAL GROUNDS, IT IS NOT THE FUNCTION OF OUR OFFICE TO EVALUATE TECHNICAL PROPOSALS OR TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING OFFICIALS BY MAKING AN INDEPENDENT DETERMINATION AS TO WHICH OFFER SHOULD BE RATED FIRST AND RECEIVE AWARD. SUCH DETERMINATIONS WILL BE QUESTIONED BY OUR OFFICE ONLY UPON A CLEAR SHOWING OF UNREASONABLENESS OR FAVORITISM, OR UPON A CLEAR SHOWING OF A VIOLATION OF THE PROCUREMENT STATUTES AND REGULATIONS. SEE 53 COMP. GEN. (B-179703, APRIL 26, 1974); B 164552, FEBRUARY 24, 1969. THEREFORE, IN VIEW OF THE JUDGMENTAL MATTER INVOLVED, WE ARE UNABLE TO CONCLUDE ON THE RECORD BEFORE US THAT TECHPLAN WAS IMPROPERLY PRECLUDED FROM CONSIDERATION FOR AWARD.

THE RECORD INDICATES THAT THE TECHPLAN PROPOSAL WAS REJECTED BECAUSE OF THE DEFICIENCIES NOTED IN THE LETTER OF UNACCEPTABILITY THAT WAS SENT TO TECHPLAN ON JUNE 17, 1974. THERE IS NOTHING TO INDICATE THAT TECHPLAN'S SMALL BUSINESS STATUS ENTERED INTO THE DETERMINATION TO REJECT ITS PROPOSAL. FURTHER, THERE DOES NOT APPEAR TO HAVE BEEN A PREDETERMINED PREFERENCE TO CONTRACT WITH A PARTICULAR OFFEROR, SINCE, AFTER THE REOPENING OF DISCUSSIONS GENERATED BY TECHPLAN'S PROTEST, THE ORDER OF SUPERIORITY OF PROPOSALS CHANGED. MOREOVER, WE FIND NOTHING IN THE RECORD TO INDICATE THAT THE CONTRACTING AGENCY WAS WEDDED TO ANY PARTICULAR TECHNICAL APPROACH BEFORE THE RELEASE OF THE RFQ. ALSO, THE CONTRACT AWARDED DID NOT PROVIDE LESS THAN 16 MAN-YEARS OF SERVICE OVER 24 MONTHS.

WE ARE UNABLE TO PROVIDE COPIES OF THE EXHIBITS THAT WERE NOT FURNISHED TO TECHPLAN BY THE ARMY, SINCE THE DETERMINATION CONCERNING WHAT IS PROTECTED FROM THE PUBLIC DOMAIN INITIALLY IS THAT OF THE CONTRACTING AGENCY. 53 COMP. GEN. (B-178684, MARCH 21, 1974). HOWEVER, WE HAVE REVIEWED THE EXHIBITS AND THE DECISION IS REACHED WITH FULL KNOWLEDGE OF THE CONTENTS.

IN VIEW OF THE FOREGOING, THE REJECTION OF THE TECHPLAN PROPOSAL IS NOT SUBJECT TO OBJECTION BY OUR OFFICE. ACCORDINGLY, THE PROTEST IS DENIED.