B-181148, NOV 7, 1974

B-181148: Nov 7, 1974

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IRRECONCILABLE CONFLICT BETWEEN AGENCY'S AND PROTESTER'S VERSIONS OF PRECLOSING DATE EVENTS REGARDING ALLEGED REQUESTS FOR ADDITIONAL INFORMATION ABOUT REQUIRED SERVICES UNDER NEGOTIATED PROCUREMENT MUST BE RESOLVED BY ACCEPTANCE OF ADMINISTRATIVE VERSION OF EVENTS (THAT SPECIFIC REQUESTS WERE NOT MADE) IN ABSENCE OF PROBATIVE EVIDENCE (OTHER THAN STATEMENTS FROM EACH SIDE) REGARDING EVENTS IN QUESTION. 2. EXCLUSION OF PROTESTER FROM COMPETITIVE RANGE IS NOT SUBJECT TO QUESTION SINCE REVIEW SHOWS NASA DID NOT UNREASONABLY EXCLUDE PROTESTER'S PROPOSAL. IT WOULD HAVE BEEN IMPROPER FOR NASA TO HAVE GIVEN PROTESTER A HIGHER SCORE BECAUSE OF ITS STATUS AS MINORITY CONCERN. IT IS AXIOMATIC THAT PRINCIPAL EVALUATION FACTORS AND THEIR RELATIVE IMPORTANCE SHOULD BE SET FORTH IN RFP SO THAT OFFERORS WILL BE ABLE TO MAKE ACCURATE AND REALISTIC PROPOSALS.

B-181148, NOV 7, 1974

1. IRRECONCILABLE CONFLICT BETWEEN AGENCY'S AND PROTESTER'S VERSIONS OF PRECLOSING DATE EVENTS REGARDING ALLEGED REQUESTS FOR ADDITIONAL INFORMATION ABOUT REQUIRED SERVICES UNDER NEGOTIATED PROCUREMENT MUST BE RESOLVED BY ACCEPTANCE OF ADMINISTRATIVE VERSION OF EVENTS (THAT SPECIFIC REQUESTS WERE NOT MADE) IN ABSENCE OF PROBATIVE EVIDENCE (OTHER THAN STATEMENTS FROM EACH SIDE) REGARDING EVENTS IN QUESTION. 2. EXCLUSION OF PROTESTER FROM COMPETITIVE RANGE IS NOT SUBJECT TO QUESTION SINCE REVIEW SHOWS NASA DID NOT UNREASONABLY EXCLUDE PROTESTER'S PROPOSAL; MOREOVER, PROTESTER DOES NOT QUESTION NASA'S JUDGMENT THAT PROTESTER HAD SUBMITTED INADEQUATELY WRITTEN PROPOSAL. 3. SINCE RFP DID NOT CONTAIN SPECIFIC EVALUATION FACTOR GIVING PREFERENCE TO MINORITY/OWNED CONCERNS, IT WOULD HAVE BEEN IMPROPER FOR NASA TO HAVE GIVEN PROTESTER A HIGHER SCORE BECAUSE OF ITS STATUS AS MINORITY CONCERN. IT IS AXIOMATIC THAT PRINCIPAL EVALUATION FACTORS AND THEIR RELATIVE IMPORTANCE SHOULD BE SET FORTH IN RFP SO THAT OFFERORS WILL BE ABLE TO MAKE ACCURATE AND REALISTIC PROPOSALS.

PHELPS PROTECTION SYSTEMS INC.:

RFP NO. 51642/033, COVERING A REQUIREMENT FOR SECURITY GUARD SERVICES AT THE GODDARD SPACE FLIGHT CENTER (GSFC) OF THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) WAS ISSUED FEBRUARY 1, 1974. THE RFP PROVIDED THAT: (1) A PREPROPOSAL CONFERENCE WOULD BE HELD FOR OFFERORS ON FEBRUARY 11, 1974; AND (2) THE CLOSING DATE FOR RECEIPT OF PROPOSALS WOULD BE MARCH 1, 1974.

PHELPS PROTECTION SYSTEMS INC. (PHELPS), ONE OF FOUR CONCERNS WHICH ULTIMATELY SUBMITTED PROPOSALS FOR THE REQUIREMENT, ATTENDED THE PREPROPOSAL CONFERENCE FOR THE RFP ON FEBRUARY 11, 1973. AFTER THIS DATE, PHELPH (IN THE COMPANY'S OWN WORDS) RESEARCHED THE PROPOSAL EXTENSIVELY AND FOUND THAT DETAILED INFORMATION WOULD BE REQUIRED TO COMPLETE THE PROPOSAL." CONSEQUENTLY, DURING THE THIRD WEEK OF FEBRUARY, PHELPS ASKED NASA FOR "ANY MATERIAL WRITTEN OR ORAL THAT WOULD ENABLE (PHELPS) TO SUBMIT A MORE INTELLIGENT PROPOSAL ***."

AN EMPLOYEE OF THE PROCURING AGENCY, ACCORDING TO PHELPS, THEN TOLD THE COMPANY THAT "THERE WAS NO WRITTEN MATERIAL AVAILABLE" AND THAT "IF GSFC HAD ANY NEED FOR DETAILS OR CLARIFICATIONS, (PHELPS) WOULD BE GIVEN THE OPPORTUNITY TO RESPOND IN WRITING." ON FEBRUARY 28, THE SAME NASA EMPLOYEE, ACCORDING TO PHELPS, ALSO DENIED THE COMPANY'S REQUEST FOR A ONE -WEEK EXTENSION OF THE PROPOSAL CLOSING DATE.

COPIES OF THE RFP WERE PROVIDED TO 43 COMPANIES. ON MARCH 1, FOUR COMPANIES (PHELPS, ADVANCE SERVICES, INC., TASKPOWER INTERNATIONAL, INC., AND WACKENHUT SERVICES, INC.) SUBMITTED PROPOSALS.

DURING MARCH 1974 PROPOSALS WERE EVALUATED BY NASA'S SOURCE EVALUATION BOARD (SEB). AS A RESULT OF THE EVALUATION, THE SEB DETERMINED THAT PHELPS AND ADVANCE WERE NOT IN THE COMPETITIVE RANGE FOR THE PROCUREMENT. SPECIFICALLY, THE SEB DECIDED THAT TECHNICAL AND BUSINESS DEFICIENCIES IN PHELPS' PROPOSAL WERE SUCH THAT THEY COULD NOT BE CORRECTED WITHOUT THE COMPANY'S ADOPTING A NEW TECHNICAL AND BUSINESS APPROACH. BECAUSE OF THESE DEFICIENCIES, PHELPS' PROPOSAL WAS SCORED THE LOWEST OF THE FOUR PROPOSALS RECEIVED. BY COMPARISON, THE HIGHEST RATED PROPOSAL, WHICH WAS LOWER IN ESTIMATED COST THAN PHELPS' PROPOSAL, RECEIVED MORE THAN TWICE PHELPS' SCORE.

BY LETTER DATED MARCH 28, 1974 (RECEIVED BY PHELPS ON APRIL 5, 1974), THE CONTRACTING OFFICER INFORMED THE PROTESTER THAT ITS PROPOSAL WAS FOUND NOT TO BE IN THE COMPETITIVE RANGE BECAUSE OF DEFICIENCIES, AMONG OTHER THINGS, IN:

OVERALL TECHNICAL APPROACH

MANAGEMENT OF THE ON-SITE PROJECT.

THE LETTER ALSO INFORMED PHELPS OF ITS RIGHT TO HAVE A DETAILED EXPLANATION, OR "DEBRIEFING," OF THE SEB DECISION, IF PHELPS SO DESIRED. PHELPS RECEIVED A DEBRIEFING FROM NASA ON JUNE 21, 1974.

PHELPS COMPLAINS THAT NASA DID NOT GIVE IT, DESPITE REPEATED REQUESTS, ENOUGH INFORMATION ON CURRENT OPERATING PROCEDURES DESCRIBING "SECURITY MEHTODS USED AT GSFC, CRITERIA OF RISKS, COST OF LOSSES, AREAS OF VULNERABILITY AND ADDITIONAL SITE AND OPERATIONAL INFORMATION ***." THE LACK OF THIS INFORMATION AND NASA'S REFUSAL TO PERMIT AN ON SITE INSPECTION, PHELPS INSISTS, PREVENTED THE COMPANY FROM PREPARING A "VALID" PROPOSAL.

NASA'S CONTRACTING OFFICER DENIES PHELPS EVER REQUESTED AN ON-SITE INSPECTION OR DETAILED INFORMATION IN THE LISTED AREAS. FURTHER, NASA DENIES THAT IT TOLD PHELPS THAT ANY INFORMATIONAL DEFECTS IN THE COMPANY'S PROPOSAL COULD BE CORRECTED DURING NEGOTIATIONS, AS THE COMPANY FURTHER CONTENDS.

CLEARLY, THERE IS AN IRRECONCILABLE CONFLICT BETWEEN NASA'S AND PHELPS' VERSIONS OF THE EVENTS. WITHOUT ANY PROBATIVE EVIDENCE OTHER THAN THE STATEMENTS FROM EACH SIDE, WE ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE VERSION OF THE FACTS. B-177397, JUNE 27, 1973.

SINCE NO OFFEROR SPECIFICALLY REQUESTED ADDITIONAL INFORMATION FROM NASA ABOUT THE SERVICES PRIOR TO SUBMITTING A PROPOSAL, WE CANNOT AGREE WITH PHELPS' COLLATERAL COMPLAINTS THAT THE LACK OF THIS INFORMATION IMPROPERLY RESTRICTED COMPETITION, OR THAT NASA IMPROPERLY REFUSED TO GIVE PHELPS ADDITIONAL TIME TO OBTAIN UNDEFINED INFORMATION BY NOT POSTPONING THE DATE SET FOR RECEIPT OF PROPOSALS.

PHELPS ALSO SUGGESTS THAT THE REFUSAL TO PROVIDE REQUESTED INFORMATION IS CONFIRMED BY STATEMENTS MADE BY NASA EMPLOYEES AT THE DEBRIEFING CONFERENCE THAT: (1) "GFSC'S *** REASON FOR NOT GIVING OUT SUCH INFORMATION WAS SO THAT THE INCUMBENT WOULD NOT BE AWARE THAT THE MANNER IN WHICH CURRENT OPERATIONS WERE BEING HANDLED WAS WHAT GFSC WAS IN FACT LOOKING FOR"; AND (2) "GFSC *** COULD NOT READILY GIVE PHELPS ANY INFORMATION AS IT WOULD HAVE BEEN NECESSARY TO PROVIDE IT TO ALL BIDDERS *

THE CONTRACTING OFFICER REPLIES THAT THE DEBRIEFING GIVEN PHELPS "CENTERED AROUND QUALIFICATIONS OF KEY PERSONNEL NOT RELATED TO THE INCUMBENT'S PROPOSAL." HE ALSO EMPHASIZES THAT "PHELPS DID NOT RAISE ANY TECHNICAL QUESTIONS PRIOR TO THE RECEIPT OF PROPOSALS."

WE TAKE THE CONTRACTING OFFICER'S STATEMENTS TO MEAN THAT AT THE DEBRIEFING NASA DID NOT ACKNOWLEDGE, AS PHELPS SEEMS TO CONTEND, THAT IT HAD IMPROPERLY WITHHELD REQUESTED INFORMATION FROM ANY OFFEROR. THIS INTERPRETATION IS CONSISTENT WITH NASA'S ALLEGED STATEMENT THAT HAD ANY ADDITIONAL INFORMATION BEEN REQUESTED, THE INFORMATION WOULD HAVE HAD TO HAVE BEEN MADE AVAILABLE TO ALL OFFERORS SINCE THIS STATEMENT MERELY RELATES EXISTING PROCEDURE.

FINALLY, PHELPS INSISTS THAT ITS EXPERIENCE AND QUALIFICATIONS WERE SUFFICIENT FOR NASA TO HAVE FOUND THAT ITS PROPOSAL WAS WITHIN THE COMPETITIVE RANGE, INDEPENDENT OF THE CONTENTS OF ITS PROPOSAL, AND THAT NO CONSIDERATION WAS GIVEN TO ITS STATUS AS A MINORITY-OWNED FIRM.

NASA PROCUREMENT REGULATION SEC. 3-805.1(A) (1970 ED.) REQUIRES THAT AFTER RECEIPT OF INITIAL PROPOSALS, WRITTEN OR ORAL DISCUSSIONS SHALL BE HAD WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND "OTHER FACTORS" CONSIDERED. COMPETITIVE RANGE DETERMINATIONS NECESSARILY REQUIRE THE EXERCISE OF A CONSIDERABLE DEGREE OF DISCRETION BY PROCURING OFFICIALS GIVEN THE COMPLEXITY OF REQUIREMENTS USUALLY ACQUIRED IN NEGOTIATED PROCUREMENTS. CONSEQUENTLY, OUR OFFICE WILL NOT QUESTION COMPETITIVE RANGE DETERMINATIONS UNLESS THEY ARE WITHOUT A REASONABLE BASIS. 48 COMP. GEN. 314 (1968). BASED ON OUR REVIEW OF THE RECORD OF THE SEB PROCEEDINGS, WE CANNOT CONCLUDE THAT PHELPS' PROPOSAL WAS UNREASONABLY EXCLUDED FROM THE COMPETITIVE RANGE, NOTWITHSTANDING PHELPS' ASSERTIONS THAT IT IS A COMPETENT AND EXPERIENCED MINORITY-OWNED CONCERN.

WE ASSUME, FOR THE PURPOSE OF DISCUSSION, THAT PHELPS IS A COMPETENT MINORITY-OWNED CONCERN. COMPETITIVE RANGE DETERMINATIONS MUST BE MADE, HOWEVER, ON THE DEGREE TO WHICH AN OFFEROR'S WRITTEN PROPOSAL ADEQUATELY ADDRESSES THE PROPOSAL EVALUATION FACTORS STATED IN THE RFP. NO MATTER HOW CAPABLE A CONCERN MAY BE, IF IT DOES NOT SUBMIT AN ADEQUATELY WRITTEN PROPOSAL, IT WILL NOT BE CONSIDERED IN THE COMPETITIVE RANGE OR IN LINE FOR FURTHER DISCUSSIONS IN A NEGOTIATED PROCUREMENT.

NASA DECIDED THAT PHELPS HAD FAILED, AMONG OTHER THINGS, TO SUBMIT AN ADEQUATELY WRITTEN TECHNICAL PROPOSAL. WE THINK THIS FACT ALONE SUPPORTS NASA'S FINDING THAT PHELPS HAD NOT SUBMITTED A COMPETITIVE RANGE PROPOSAL. INDEED, PHELPS DOES NOT DISAGREE WITH THIS FINDING BUT ATTRIBUTES THE DEFICIENCY TO NASA'S ALLEGED FAILURE TO HAVE GIVEN IT ENOUGH INFORMATION. WE CANNOT AGREE, HOWEVER, THAT NASA DENIED PHELPS INFORMATION.

FURTHER, SINCE THE RFP DID NOT CONTAIN A SPECIFIC EVALUATION FACTOR GIVING PREFERENCE TO MINORITY-OWNED CONCERNS, IT WOULD HAVE BEEN IMPROPER TO HAVE GIVEN PHELPS A HIGHER SCORE BECAUSE OF ITS STATUS AS A MINORITY- OWNED COMPANY. IT IS AXIOMATIC THAT PRINCIPAL EVALUATION FACTORS AND THEIR RELATIVE IMPORTANCE MUST BE SET FORTH IN THE RFP SO THAT OFFERORS WILL BE ABLE TO MAKE ACCURATE AND REALISTIC PROPOSALS. SEE MATTER OF AEL SERVICE CORPORATION, B-179703, APRIL 26, 1974, 53 COMP. GEN.

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.