B-181248, APR 9, 1975

B-181248: Apr 9, 1975

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DETERMINATION TO EXCLUDE SMALL BUSINESS PROPOSAL FROM COMPETITIVE RANGE IS SUPPORTED BY THE RECORD WHICH DISCLOSED LACK OF QUALIFIED PERSONNEL AND PAST EXPERIENCE IN RELATED STUDIES AND THEREFORE WAS REASONABLE EXERCISE OF BROAD ADMINISTRATIVE DISCRETION IN DETERMINING COMPETITIVE RANGE AND REFERRAL TO SBA FOR COC WAS NOT REQUIRED. SEC. 20.4 (1974) AND FPR SEC. 1-2.407-8(B)(3) AND (4) MAY NOT HAVE LITERALLY COMPLIED WITH CITED REGULATIONS. THERE IS NO BASIS TO QUESTION AWARD SINCE OMISSIONS DID NOT PREJUDICE PROTEST BEFORE GAO AND THERE IS NO REASON TO BELIEVE A COURT WOULD HAVE DECIDED ISSUES DIFFERENTLY ON THE MERITS. 3. PROTESTER'S PRAYERS FOR LOST PROFITS AND FOR AWARD OF FUTURE CONTRACT ON SOLE-SOURCE BASIS ARE MOOT BECAUSE OF GAO'S DENIAL OF TIPS' PROTEST ON MERITS.

B-181248, APR 9, 1975

1. DETERMINATION TO EXCLUDE SMALL BUSINESS PROPOSAL FROM COMPETITIVE RANGE IS SUPPORTED BY THE RECORD WHICH DISCLOSED LACK OF QUALIFIED PERSONNEL AND PAST EXPERIENCE IN RELATED STUDIES AND THEREFORE WAS REASONABLE EXERCISE OF BROAD ADMINISTRATIVE DISCRETION IN DETERMINING COMPETITIVE RANGE AND REFERRAL TO SBA FOR COC WAS NOT REQUIRED. FPR SEC. 1-1.708-2(C). 2. ALTHOUGH AGENCY'S FAILURE TO FURNISH WRITTEN FINDING OF URGENCY TO GAO PRIOR TO CONTRACT AWARD PURSUANT TO 4 C.F.R. SEC. 20.4 (1974) AND FPR SEC. 1-2.407-8(B)(3) AND (4) MAY NOT HAVE LITERALLY COMPLIED WITH CITED REGULATIONS, THERE IS NO BASIS TO QUESTION AWARD SINCE OMISSIONS DID NOT PREJUDICE PROTEST BEFORE GAO AND THERE IS NO REASON TO BELIEVE A COURT WOULD HAVE DECIDED ISSUES DIFFERENTLY ON THE MERITS. 3. PROTESTER'S PRAYERS FOR LOST PROFITS AND FOR AWARD OF FUTURE CONTRACT ON SOLE-SOURCE BASIS ARE MOOT BECAUSE OF GAO'S DENIAL OF TIPS' PROTEST ON MERITS.

TRANSPORTATION IMPROVEMENT PLANNING SYSTEMS, INC.:

ON FEBRUARY 8, 1974, THE FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, WASHINGTON, D.C., ISSUED REQUEST FOR PROPOSALS (RFP) WA5R- 4-0510 FOR A STUDY ON AIRPORT DEVELOPMENT. THE RFP LISTED IN DESCENDING ORDER OF IMPORTANCE THREE AREAS TO BE EVALUATED IN THE CONSIDERATION OF PROPOSALS: (1) UNDERSTANDING OF THE PROBLEMS POSED AND THE APPROACH TO THEIR SOLUTION; (2) THE BACKGROUND AND EXPERIENCE OF THE CONTRIBUTORS TO THE STUDY; AND (3) THE PROPOSER'S PAST EXPERIENCE IN THE FIELD.

TWELVE COMPANIES SUBMITTED PROPOSALS. THE PROPOSALS WERE EVALUATED BY A THREE-MEMBER TEAM OF EXPERIENCED PERSONNEL. EACH MEMBER RATED THE PROPOSALS ON A RAW SCALE OF 1 TO 10 FOR EACH EVALUATION CRITERION. EACH MEMBER'S RATINGS WERE MULTIPLIED BY WEIGHTING FACTORS AND A TOTAL RATING REACHED. A COMPOSITE OF THE THREE DIFFERENT TOTALS WAS THE FINAL SCORE ASSIGNED TO EACH PROPOSAL.

ON MAY 3, 1974, THE PROTESTER, TRANSPORTATION IMPROVEMENT PLANNING SYSTEMS, INC. (TIPS), RECEIVED A MEMORANDUM FROM THE CONTRACTING OFFICER NOTIFYING IT THAT ITS PROPOSAL WAS BEING REJECTED. THE MEMO STATED IN PART AS FOLLOWS:

"YOUR PROPOSAL IN RESPONSE TO THE SUBJECT SOLICITATION HAS BEEN DETERMINED TO BE UNACCEPTABLE BECAUSE OF LACK OF QUALIFIED PERSONNEL AND THE LACK OF PAST EXPERIENCE IN RELATED STUDIES."

ON MAY 10, TIPS FILED A PROTEST WITH OUR OFFICE. THE PROTEST ALLEGED THAT TIPS' PROPOSAL WAS REJECTED BECAUSE OF A DETERMINATION THAT TIPS LACKED THE CAPACITY TO PERFORM THE CONTRACT. TIPS CONTENDED THAT, THEREFORE, THE CONTRACTING OFFICER VIOLATED SECTION 1-1.708 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) BY FAILING TO REFER THE QUESTION OF ITS CAPACITY TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR A CERTIFICATE OF COMPETENCY (COC) PROCEEDING. TIPS FURTHER ALLEGED THAT THE AGENCY HAD DISCRIMINATED AGAINST IT AND OFFERED AS EVIDENCE THE FACT THAT THE AGENCY FIRST OFFERED TO HOLD A TECHNICAL DEBRIEFING ON REQUEST, THEN REFUSED TO DO SO UNTIL AFTER THE CONTRACT AWARD. THE PROTEST REQUESTED THAT THE CONTRACT NOT BE AWARDED PENDING A COC DETERMINATION.

IN A LETTER DATED JUNE 24, 1974, FAA NOTIFIED GAO THAT THE CONTRACT WOULD BE AWARDED PENDING GAO'S DECISION BECAUSE OF THE URGENCY OF THE CONTRACT REQUIREMENT. THE LETTER WAS RECEIVED JUNE 26, 1 DAY AFTER CONTRACT AWARD. ON JUNE 27, OUR OFFICE RECEIVED FAA'S REPLY TO THE ALLEGATIONS MADE BY TIPS. THE REPLY STATED THAT THE TIPS PROPOSAL WAS REJECTED IN PART BECAUSE OF DEFICIENCIES IN THE BACKGROUNDS OF THE PROPOSED STUDY PERSONNEL AND THE FIRM'S LACK OF EXPERIENCE IN THE FIELD, AND IN PART BECAUSE THE PROPOSAL SHOWED A POOR UNDERSTANDING OF THE PROBLEMS AND THE TECHNIQUES FOR SOLVING THEM. THE FAA CONTENDED THAT THE PROPOSAL WAS REJECTED BECAUSE IT WAS TECHNICALLY UNACCEPTABLE AND NOT BECAUSE TIPS LACKED CAPACITY. FAA ALSO EXPLAINED THAT ITS UNWILLINGNESS TO DEBRIEF TIPS WAS THE RESULT OF A CHANGE IN AGENCY POLICY AND NOT DISCRIMINATION AGAINST THE COMPANY.

THE RESPONSE FROM TIPS, DATED JULY 11, TOOK ISSUE WITH THE COMMENTS BY FAA AND PROTESTED THE AWARD OF THE CONTRACT BEFORE RESOLUTION OF THE PROTEST. TIPS ALLEGED THAT FAA EITHER HAD MISSTATED ITS REASONS IN THE FIRST MEMO OR ELSE HAD STATED ITS FULL REASONS AND SUBSEQUENTLY CHANGED THEM TO SUIT THE SITUATION. MOREOVER, TIPS ALLEGED THAT THE BELATED NOTICE OF AWARD PREVENTED IT FROM EXERCISING THE OPTION OF SEEKING A COURT INJUNCTION. IN CONCLUSION, TIPS REQUESTED THAT GAO DIRECT FAA TO NEGOTIATE A CONTRACT OF EQUAL VALUE WITH TIPS AS A SOLE-SOURCE, COMPENSATE TIPS FOR LOST PROFITS IN THE AMOUNT OF $8,807.20, AND CONDUCT AN IMMEDIATE TECHNICAL DEBRIEFING WITH TIPS.

ALTHOUGH IT MAY APPEAR THAT REJECTION OF TIPS PROPOSAL BECAUSE OF A LACK OF QUALIFIED PERSONNEL AND PAST EXPERIENCE IN RELATED STUDIES IMPLIES THAT ITS RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR WAS A FACTOR, WE HAVE HELD THAT A DETERMINATION OF THIS NATURE RELATES TO THE QUESTION OF WHETHER THE PROPOSAL IS TECHNICALLY ACCEPTABLE AND WITHIN A COMPETITIVE RANGE FOR NEGOTIATION PURPOSES AND DOES NOT INVOLVE MATTERS OF CAPACITY AND CREDIT WHICH, IN A CASE INVOLVING A SMALL BUSINESS FIRM, MUST BE JUDGED BY THE SBA. SEE MATTER OF MEI-CHARLTON, INC., B 179793, FEBRUARY 26, 1974, AND CASES CITED THEREIN. FURTHERMORE, THE REGULATIONS RELATIVE TO NEGOTIATED PROCUREMENTS INVOLVING SMALL BUSINESSES ALSO PROVIDE IN PERTINENT PART AS FOLLOWS:

"NOTHING IN THIS SECTION SHALL BE CONSTRUED TO PREVENT A CONTRACTING OFFICER FROM SELECTING, IN THE FIRST INSTANCE, THE SOURCE OF SUPPLY OFFERING THE HIGHEST COMPETENCE OBTAINABLE OR THE BEST SCIENTIFIC APPROACH WHERE SUCH SOURCE IS NEEDED IN CERTAIN NEGOTIATED PROCUREMENTS OF RESEARCH AND DEVELOPMENT, HIGHLY COMPLEX EQUIPMENT, OR PERSONAL OR PROFESSIONAL SERVICES. ***" (FPR SEC. 1-1.708-2(C) (1964 ED. AMEND 119 SEPT. 1973)).

IN THE INSTANT CASE, THE FAA WAS SEEKING PROFESSIONAL SERVICES OF "HIGHEST COMPETENCE" OFFERING THE "BEST SCIENTIFIC APPROACH." THE COMPETITIVE RANGE WAS DETERMINED BY HAVING A PANEL OF EXPERTS RATE THE PROPOSALS ACCORDING TO THE THREE CRITERIA, THEN PLACE THE COMPANIES IN THREE GROUPS - THOSE CONSIDERED WELL QUALIFIED TO PERFORM, THOSE WHOSE PROPOSALS WERE "TECHNICALLY ACCEPTABLE BUT OFFERED NO NEW APPROACH TO PROBLEM," AND THOSE WHOSE PROPOSALS WERE CONSIDERED UNACCEPTABLE. HOWEVER, ONLY MEMBERS OF GROUP I WERE NEGOTIATED WITH AND, THUS, IN SPITE OF THE LABELS, THE COMPETITIVE RANGE COMPRISED ONLY THOSE COMPANIES IN GROUP I. EVEN HAD TIPS BEEN JUDGED BY THE FIRST CRITERION ALONE - "UNDERSTANDING OF THE PROBLEMS POSED" - THE RAW SCORES INDICATE THAT IT WOULD ONLY HAVE QUALIFIED FOR GROUP II. AS IT WAS, THE EVALUATIONS DONE ON THE BASIS OF ALL THREE CRITERIA PLACED TIPS IN THE LOWEST GROUP.

WE HAVE REVIEWED THE REASONS NOTED ABOVE TO SUPPORT THE CONTRACTING OFFICER'S DETERMINATION TO EXCLUDE TIPS FROM THE COMPETITIVE RANGE AND WE CANNOT CONCLUDE THAT THERE WAS NOT A RATIONAL BASIS FOR HIS ACTIONS. COMP. GEN. 718 (1973); 48 ID. 314 (1968).

TIPS' ALLEGATIONS OF BAD FAITH ON THE PART OF THE AGENCY ARE ALSO NOT SUPPORTED BY THE RECORD. THE EVALUATION OF THE PROPOSALS WAS DONE APPROXIMATELY MARCH 25 THROUGH 28, BEFORE THE CONTRACTING OFFICER'S NOTIFICATION OF REJECTION WAS SENT TO TIPS. ALTHOUGH THE MEMORANDUM COULD HAVE BEEN MORE COMPLETE, IT WAS NOT INACCURATE, NOR IS THERE ANY EVIDENCE THAT IT WAS WRITTEN WITH INTENT TO MISLEAD.

FURTHERMORE, THE AGENCY'S REFUSAL TO DEBRIEF THE COMPANY PRIOR TO AWARD WAS CONSISTENT WITH THE POLICY SET FORTH IN FPR SEC. 1-3.805-1(B) (1964 ED.) THAT NO INFORMATION OTHER THAN PREAWARD NOTICE OF UNACCEPTABLE OFFERS WILL BE FURNISHED PRIOR TO AWARD. IN ANY CASE, THE REQUESTED DEBRIEFING HAS BEEN PROVIDED.

ALTHOUGH THE FAA'S FAILURE TO FURNISH A WRITTEN FINDING OF URGENCY TO GAO PRIOR TO CONTRACT AWARD PURSUANT TO 4 C.F.R. SEC. 20.4 (1974) AND FPR SEC. 1-2.407-8(B)(3) AND (4) (1964 ED. AMEND. 68 JAN. 1970) MAY NOT HAVE BEEN IN LITERAL COMPLIANCE WITH THE CITED REGULATIONS, IN VIEW OF GAO'S DENIAL OF TIPS' CLAIM ON THE MERITS, IT WOULD APPEAR THAT THE OMISSION DID NOT PREJUDICE TIPS' PROTEST BEFORE GAO. WHILE TIPS' RIGHT TO SEEK A COURT INJUNCTION PRIOR TO AWARD MAY HAVE BEEN PREJUDICED, WE DO NOT BELIEVE THIS TO BE A SUFFICIENT BASIS TO QUESTION THE LEGALITY OF AWARD SINCE THERE IS NO REASON TO BELIEVE THAT A COURT WOULD HAVE HELD DIFFERENTLY THAN THIS OFFICE ON THE MERITS.

TIPS' PRAYERS FOR LOST PROFITS AND FOR AWARD OF A FUTURE CONTRACT ON A SOLE-SOURCE BASIS ARE MOOT BECAUSE OF OUR DENIAL OF TIPS PROTEST ON THE MERITS.

FOR THE REASONS STATED ABOVE, THE PROTEST IS DENIED.