B-181251, AUG 14, 1974

B-181251: Aug 14, 1974

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REQUEST THAT GAO RULE ON PROPRIETY OF AGENCY DENIAL OF OFFEROR'S REQUEST TO REVIEW SUCCESSFUL PROPOSALS SUBMITTED UNDER STEP ONE OF TWO STEP PROCUREMENT IS DENIED SINCE GAO HAS NO AUTHORITY UNDER THE FREEDOM OF INFORMATION ACT AND IMPLEMENTING REGULATIONS WHICH GOVERN DISCLOSURE OF SUCH RECORDS TO DETERMINE WHAT MUST BE DISCLOSED BY OTHER GOVERNMENT AGENCIES. 2. WHOSE FIRST STEP PROPOSAL WAS REJECTED AS UNACCEPTABLE AND WHO HAS NOT QUESTIONED THE REASONS GIVEN FOR SUCH REJECTION. WHERE QUESTION CONCERNING VALIDITY OF TWO STEP ADVERTISING TECHNIQUE WAS RAISED WITH AGENCY PRIOR TO COMMENCEMENT OF SECOND STEP. MATTER COULD NOT BE CONSIDERED BY GAO SINCE AGNECY TOOK ADVERSE ACTION WHEN IT PROCEEDED WITH SECOND STEP NOTWITHSTANDING OBJECTIONS AND QUESTION WAS NOT PRESENTED TO GAO WITHIN FIVE DAYS OF SUCH ADVERSE AGENCY ACTION. 52 COMP.

B-181251, AUG 14, 1974

1. REQUEST THAT GAO RULE ON PROPRIETY OF AGENCY DENIAL OF OFFEROR'S REQUEST TO REVIEW SUCCESSFUL PROPOSALS SUBMITTED UNDER STEP ONE OF TWO STEP PROCUREMENT IS DENIED SINCE GAO HAS NO AUTHORITY UNDER THE FREEDOM OF INFORMATION ACT AND IMPLEMENTING REGULATIONS WHICH GOVERN DISCLOSURE OF SUCH RECORDS TO DETERMINE WHAT MUST BE DISCLOSED BY OTHER GOVERNMENT AGENCIES. 2. PRESERVATION OF THE INTEGRITY OF THE COMPETITIVE BID SYSTEM DOES NOT REQUIRE THAT OFFEROR, WHOSE FIRST STEP PROPOSAL WAS REJECTED AS UNACCEPTABLE AND WHO HAS NOT QUESTIONED THE REASONS GIVEN FOR SUCH REJECTION, BE PERMITTED TO REVIEW OTHER TECHNICAL PROPOSALS ON THE BASIS OF UNSPECIFIED "SERIOUS QUESTIONS" AS TO THE ACCEPTABILITY OF ANOTHER OFFEROR'S PROPOSAL. 3. WHERE QUESTION CONCERNING VALIDITY OF TWO STEP ADVERTISING TECHNIQUE WAS RAISED WITH AGENCY PRIOR TO COMMENCEMENT OF SECOND STEP, MATTER COULD NOT BE CONSIDERED BY GAO SINCE AGNECY TOOK ADVERSE ACTION WHEN IT PROCEEDED WITH SECOND STEP NOTWITHSTANDING OBJECTIONS AND QUESTION WAS NOT PRESENTED TO GAO WITHIN FIVE DAYS OF SUCH ADVERSE AGENCY ACTION. 52 COMP. GEN. 20 (1972).

POWERS REGULATOR COMPANY SOLICITATION RFTP-WA4M-4-7648:

COUNSEL FOR POWERS HAS REQUESTED THAT OUR OFFICE DETERMINE WHETHER POWERS IS ENTITLED TO REVIEW NON-PROPRIETARY PORTIONS OF TECHNICAL PROPOSALS SUBMITTED BY ITS COMPETITORS IN RESPONSE TO THE REFERENCED SOLICITATION ISSUED BY THE FEDERAL AVIATION ADMINISTRATION AS THE FIRST STEP OF A TWO- STEP PROCUREMENT.

BY TELEFAX DATED MAY 14, 1974, POWERS INFORMED OUR OFFICE THAT IT PROTESTED THE FAA'S REJECTION OF ITS TECHNICAL PROPOSAL "BUT WISHED TO CONFER WITH APPROPRIATE PROCUREMENT OFFICERS TO DISCUSS THIS MATTER FURTHER." SUBSEQUENTLY, POWERS HAS NOT RAISED ANY QUESTION REGARDING THE REASONS FOR THE REJECTION OF ITS PROPOSAL BUT HAS REQUESTED THAT OUR OFFICE DETERMINE THE PROPRIETY OF THE CONTRACTING OFFICER'S DENIAL OF ITS REQUEST TO REVIEW ACCEPTABLE PROPOSALS RECEIVED IN RESPONSE TO THE SUBJECT SOLICITATION. COUNSEL STATES THAT "SERIOUS QUESTIONS" HAVE ARISEN CONCERNING THE DETERMINATION OF ACCEPTABILITY OF THE PROPOSAL SUBMITTED BY JOHNSON SERVICE, WHICH WAS ULTIMATELY REJECTED IN DEFERENCE TO THE LOWER SECOND STEP BID SUBMITTED BY HONEYWELL, INCORPORATED. IN THESE CIRCUMSTANCES COUNSEL ARGUES THAT THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM REQUIRES THAT UNSUCCESSFUL BIDDERS BE ALLOWED TO REVIEW THE ACCEPTABLE PROPOSALS IN ORDER TO MEANINGFULLY EXERCISE THE RIGHT TO PROTEST THE AGENCY DETERMINATION THAT THE PROPOSALS ACCEPTED ARE IN ACCORD WITH THE TECHNICAL REQUIREMENTS SET FORTH IN THE SOLICITATION. MOREOVER, COUNSEL ARGUES THAT THE OUTCOME OF THE SECOND STEP BIDDING, THAT IS, THE LARGE PRICE DIFFERENTIAL OF THE TWO ACCEPTABLE PROPOSALS, RAISES QUESTIONS CONCERNING THE VALIDITY OF EMPLOYING THE TWO-STEP ADVERTISING PROCEDURES IN THIS CASE.

THE DOCUMENTS WHICH COUNSEL WISHES TO REVIEW WERE SOLICITED, OBTAINED AND CONSIDERED AND ARE RETAINED BY THE PROCURING AGENCY. THE FREEDOM OF INFORMATION ACT, 5 U.S.C. 552 AS IMPLEMENTED BY 49 CFR 7 GOVERNS THE RELEASE OF SUCH DOCUMENTS TO THE PUBLIC BY THE FAA. WE HAVE NO AUTHORITY UNDER THE ACT OR THE REGULATIONS TO DETERMINE WHAT MUST BE DISCLOSED BY OTHER GOVERNMENT AGENCIES.

B-165617, MARCH 6, 1969.

MOREOVER, WE CANNOT AGREE WITH COUNSEL'S ARGUMENT THAT POWERS SHOULD BE PERMITTED TO REVIEW ALL PROPOSALS IN ORDER TO MAINTAIN THE INTEGRITY OF THE COMPETITIVE PROCUREMENT SYSTEM. THIS OFFICE REVIEWS PROPOSALS SUBMITTED IN NEGOTIATED AND TWO STEP PROCUREMENTS REVIEWS ARE NECESSARY IN CONNECTION WITH A BID PROTEST REQUIRING A DETERMINATION AS TO THE PROPRIETY OF THE EVALUATION PROCESS. IN THE CIRCUMSTANCES DESCRIBED BELOW IT WOULD NOT BE NECESSARY FOR THIS OFFICE TO CONDUCT SUCH A REVIEW HERE, EVEN IF WE WERE TO CONSTRUE COUNSEL'S CONTENTIONS AS A PROTEST TO THIS OFFICE.

ALTHOUGH POWERS WAS GIVEN A "DEBRIEFING" CONFERENCE BY THE PROCURING AGENCY ON MAY 24, 1974, REGARDING THE REJECTION OF ITS PROPOSAL, THE FIRM HAS NOT QUESTIONED THE ADEQUACY OF THE DEBRIEFING; THE PROPRIETY OF THE AGENCY'S REASONS FOR REJECTING ITS PROPOSAL; OR THE PROPRIETY OF THE DETERMINATION CONCERNING THE ACCEPTABILITY OF THE SUCCESSFUL BIDDER'S (HONEYWELL) PROPOSAL. IT IS ARGUED THAT POWERS IS ENTITLED TO REVIEW THE PROPOSALS BECAUSE "SERIOUS QUESTIONS HAVE ARISEN CONCERNING THE ACCEPTABILITY OF" JOHNSON'S TECHNICAL PROPOSAL. HOWEVER, NO FACTUAL BASIS HAS BEEN ADVANCED TO SUPPORT THE ARGUMENT AND IN THE CIRCUMSTANCES WE WOULD FIND NO REASON FOR PURSUING SUCH A PROTEST.

AS TO THE COUNSEL'S QUESTIONS REGARDING THE VALIDTY OF EMPLOYING THE TWO STEP ADVERTISING TECHNIQUES BECAUSE OF THE SECOND STEP BIDDING RESULTS, IT IS SIGNIFICANT THAT PRIOR TO THE COMMENCEMENT OF THE SECOND STEP POWERS RAISED QUESTIONS WITH THE PROCURING ACTIVITY REGARDING THE USE OF THIS PROCUREMENT TECHNIQUE. IT APPEARS THAT THE AGENCY TOOK ADVERSE ACTION WHEN IT PROCEEDED WITH THE SECOND STEP NOTWITHSTANDING POWERS' OBJECTIONS AND IN SUCH CIRCUMSTANCES WE WOULD NOT CONSIDER ANY PROTEST FILED HERE MORE THAN FIVE DAYS AFTER SUCH ADVERSE AGENCY ACTION. SEE SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 CFR 20.2(A)) AND 52 COMP. GEN. 20 (1972). SINCE THE QUESTION OF THE PROPER PROCUREMENT TECHNIQUE WAS FIRST PRESENTED HERE IN COUNSEL'S LETTER OF JUNE 25, 1974, THE PROTEST WOULD BE UNTIMELY FILED AND WOULD NOT BE CONSIDERED.