B-181728, NOV 26, 1974

B-181728, NOV 26, 1974

1. WHERE "BORDERLINE" OFFEROR WAS ADVISED OF DEFICIENCIES IN ITS PROPOSAL DURING INITIAL ROUND OF NEGOTIATIONS, AND REVISED PROPOSAL THEREAFTER SUBMITTED REMAINED DEFICIENT IN THOSE SAME RESPECTS, RESULTING IN OFFEROR FAILING TO ATTAIN ACCEPTABLE RATING UPON REEVALUATION, AGENCY WAS NOT OBLIGATED TO CONDUCT SECOND ROUND OF NEGOTIATIONS. 2. UNDER RFP FOR SERVICES FOR CONVERTING MANUAL LICENSE APPLICATION SYSTEM TO AUTOMATED SYSTEM UNSUCCESSFUL OFFEROR'S CONTENTION THAT RFP DID NOT PUT IT ON NOTICE THAT ITS PROPOSAL FOR "USER TRAINING" AND "CONVERSION" WOULD BE CONSIDERED IN EVALUATION IS WITHOUT FOUNDATION. EVALUATION FACTOR ENTITLED, IN PART, "ABILITY TO *** PROVIDE USER TRAINING AND INSURE SUCCESSFUL IMPLEMENTATION OF SYSTEM" CLEARLY PUT OFFERORS ON NOTICE THAT USER TRAINING PROGRAM WOULD BE FACTOR, AND WHERE SERVICES SOUGHT ARE CONVERSION FROM MANUAL SYSTEM, "SUCCESSFUL IMPLEMENTATION" FAIRLY ENCOMPASSES CONVERSION PROPOSAL. 3. WHERE PROPOSAL FOR DEVELOPMENT OF AUTOMATED LICENSE APPLICATION SYSTEM DID NOT ADDRESS ALTERNATIVE APPROACHES TO DATA BASE, BUT WHERE OFFEROR CONTENDS THAT IT ADDRESSED ALTERNATIVES DURING DISCUSSIONS, THIS OFFICE IS NOT IN A POSITION TO ASSESS DEPTH OF ORAL PRESENTATION. SINCE EVALUATION SECTION OF SOLICITATION CLEARLY MADE DEGREE OF FLEXIBILITY AND INGENUITY PROPOSED BY OFFEROR TO APPROACH PROBLEM AND ITS ASSESSMENT OF VIABLE ALTERNATIVES FACTORS FOR EVALUATION, THIS OFFICE CONSIDERS TECHNICAL ASSESSMENT OF PROPOSAL MATTER FOR ADMINISTRATIVE DETERMINATION, WHICH WILL NOT BE DISTURBED IN ABSENCE OF EVIDENCE OF ARBITRARINESS OR UNREASONABLENESS. 52 COMP. GEN. 382 (1972). 4. WHILE OFFEROR'S PREVIOUS EXPERIENCE WITH REGULATORY AGENCIES IN APPLICATIONS RELATED TO THAT SOUGHT BY FEDERAL COMMUNICATIONS COMMISSION UNDER SOLICITATION FOR DEVELOPMENT OF AUTOMATED LICENSE APPLICATION SYSTEM MAY NOT PROVIDE FULL ASSESSMENT OF OFFEROR'S EXPERIENCE, IN VIEW OF FACT THAT EVALUATION FACTOR FOR PAST EXPERIENCE GENERALLY IN DEVELOPMENT OF MANAGEMENT INFORMATION SYSTEMS WAS WEIGHTED TWICE AS HEAVILY AS THAT FOR SPECIFIC EXPERIENCE WITH REGULATORY AGENCIES, AND SUCH EXPERIENCE WAS CONSIDERED, WE CANNOT CONCLUDE THAT FCC GAVE UNDUE WEIGHT TO LACK OF EXPERIENCE WITH REGULATORY AGENCIES. 5. ALTHOUGH CERTAIN OF FACTORS CONSIDERED IN EVALUATION OF UNSUCCESSFUL SMALL BUSINESS' PROPOSAL FOR DEVELOPMENT OF AUTOMATED LICENSE APPLICATION SYSTEM MAY RELATE TO CAPACITY, IN CONTEXT OF NEGOTIATED PROCUREMENT CONSIDERATION OF CERTAIN FACTORS RELATING TO CAPACITY IS PROPER IN DETERMINING TECHNICAL ACCEPTABILITY OF PROPOSALS WHERE, AS HERE, THOSE REASONS ARE NOT SOLE BASIS FOR REJECTION. 6. ALTHOUGH, IN GENERAL, NOTICE TO OFFERORS WHOSE PROPOSALS ARE DETERMINED TO BE UNACCEPTABLE SHOULD BE GIVEN AS SOON AS POSSIBLE AFTER DETERMINATION OF UNACCEPTABILITY, IT DOES NOT APPEAR THAT TWELVE DAY PERIOD BETWEEN FINDING BY EVALUATING TEAM THAT OFFEROR'S PROPOSAL WAS UNACCEPTABLE AND NOTICE OF SUCH DETERMINATION TO OFFEROR, ONE DAY PRIOR TO AWARD, WAS UNDULY PROLONGED. MOREOVER, UNDER SECTION 1-3.805 OF FPR, PROVIDING NOTICE OF UNACCEPTABILITY TO OFFEROR IS NOT MANDATORY AND ANY DELAY IN GIVING SUCH NOTICE IS PROCEDURAL MATTER AND DOES NOT PROVIDE BASIS FOR DISTURBING AWARD. 7. ALTHOUGH REQUEST FOR PROPOSALS IMPROPERLY INCLUDED PREDETERMINED SCORE FOR ACCEPTABILITY OF PROPOSALS, 50 COMP. GEN. 59 (1970), SUCH DEFECT DID NOT AFFECT SUBJECT PROCUREMENT AS "BORDERLINE" PROPOSALS, INCLUDING PROTESTER'S, WERE NOT AUTOMATICALLY REJECTED EVEN THOUGH BELOW CUT-OFF POINT.

GALLER ASSOCIATES, INCORPORATED:

BY LETTER OF JULY 5, 1974, GALLER ASSOCIATES, INCORPORATED, (GAI), PROTESTS THE FEDERAL COMMUNICATIONS COMMISSION'S (FCC) AWARD OF A CONTRACT TO PLANNING RESEARCH CORPORATION, INFORMATION SCIENCES COMPANY (PRC/ISC), UNDER RFP 74-43, SOLICITING SERVICES FOR THE DEVELOPMENT OF A BROADCAST LICENSE APPLICATIONS PROCESSING SYSTEM.

SECTION D OF THE RFP, ENTITLED "EVALUATION FOR AWARD FACTORS", PROVIDED AS A CONDITION OF ELIGIBILITY FOR SELECTION THAT OFFERORS ATTAIN AN OVERALL SCORE OF 80 PERCENT IN THE EVALUATION OF THEIR PROPOSALS BASED ON THE FACTORS AND WEIGHTS SET FORTH THEREIN. IN ADDITION, SPECIFIED MINIMUM RATINGS ON SIX SPECIFIC CRITERIA OF THE TEN ENUMERATED AT SECTION D, WERE MADE A CONDITION OF ELIGIBILITY FOR SELECTION.

THE FIVE PROPOSALS RECEIVED WERE FORWARDED TO THE TECHNICAL EVALUATION TEAM ON MAY 28, 1974, AND THREE OF THE PROPOSALS WERE FOUND TO BE EITHER "ACCEPTABLE" OR "BORDERLINE". TECHNICAL DISCUSSIONS WERE HELD WITH GAI, PRC/ISC AND A THIRD OFFEROR, TOUCHE ROSS. AS A RESULT OF THOSE DISCUSSIONS TOUCHE ROSS ELECTED TO WITHDRAW ITS OFFER WHILE GAI AND PRC/ISC REVISED THEIR TECHNICAL PROPOSALS. ON JUNE 7, 1974, THOSE REVISED PROPOSALS WERE FORWARDED TO THE TECHNICAL EVALUATION TEAM WHICH COMPLETED ITS FURTHER REVIEW AND EVALUATION ON JUNE 13, 1974. BASED ON THE TECHNICAL EVALUATION OF ITS REVISED PROPOSAL, GAI SCORED 72 PERCENT OVERALL--LESS THAN THE MINIMUM OF 80 PERCENT REQUIRED TO ESTABLISH ELIGIBILITY AND ATTAINED LESS THAN THE MINIMUM SCORE ON EVALUATION FACTOR 1.2, ONE OF THE SIX "MANDATORY" EVALUATION CRITERIA. AS A RESULT, CONTRACT NO. FCC-0118 IN THE TOTAL FIXED PRICE AMOUNT OF $209,990 WAS AWARDED TO PRC/ISC ON JUNE 26, 1974. (GAI'S OFFER HAD BEEN IN THE AMOUNT OF $178,708.)

FOLLOWING A DEBRIEFING CONFERENCE ON JULY 2, 1974, BY THE AGENCY, GAI PROTESTED THE AWARD TO OUR OFFICE. IN ITS LETTER OF JULY 5, 1974, EXPLAINING THE BASIS FOR ITS PROTEST, GAI PROVIDES THE FOLLOWING SUMMARY OF ITS OBJECTIONS TO THE PROCUREMENT:

"THAT, DURING THE INITIAL TECHNICAL DISCUSSION, GAI REPRESENTATIVES WERE INFORMED (LED TO BELIEVE) THAT AFTER CERTAIN ASPECTS OF ITS PROPOSAL WERE ADDRESSED, IT WOULD HAVE COMPLIED WITH THE REQUIREMENTS OF THE RFP IN ALL RESPECTS***.

"THAT, AFTER HAVING SUBMITTED THE CHANGES (SUPPLEMENTAL INFORMATION), NO CONTACT WAS MADE BY FCC TO GAI REGARDING ANY FURTHER QUESTIONING OF ITS REVISED PROPOSAL. GAI QUITE PROPERLY ASSUMED IT WAS IN THE ZONE OF CONSIDERATION, IN RESPECT NOT ONLY AS TO PRICE, BUT OTHER FACTORS, SUCH AS REVISIONS SUBMITTED WHICH WOULD INFLUENCE THE POINT OR VALUE SELECTION CRITERIA EVALUATION SET FORTH IN THE RFP.

"THAT, DUE TO THE FCC'S FAILURE TO IMPLEMENT THE NEGOTIATION PROCESSES REFERENCED IN THE PARAGRAPH ABOVE, GAI WAS DENIED AN OPPORTUNITY TO DISCUSS ANY POTENTIAL PROBLEMS AT THE BASIC NEGOTIATOR LEVEL OR, FOR THAT MATTER, WITH THE CONTRACTING OFFICER AND, THEREFORE; WAS DENIED THE OPPORTUNITY TO FILE AN OFFICIAL PROTEST PRIOR TO AWARD, HAD IT CHOSEN SUCH A COURSE OF ACTION.

"THAT, HAVING ADDRESSED ITSELF TO ALL THE REQUIREMENTS EXPRESSED BY VARIOUS FCC PERSONNEL, AND HAVING NOT BEEN FURNISHED ANY NOTIFICATION OF UNACCEPTABILITY (UNTIL AFTER AWARD), GAI FELT SECURE IN COMPETING ON PRICE. IN THE ABSENCE OF ANY OFFICIAL CONTACT UNTIL AFTER AWARD, GAI BELIEVES THAT THE CRITERIA FOR SELECTION OF OFFERORS FOR NEGOTIATION AND AWARD AS EXPRESSED IN PARAGRAPH 1-3.805 OF THE CODE OF FEDERAL REGULATIONS HAVE BEEN ABROGATED."

ESSENTIALLY, WE UNDERSTAND GAI AS URGING THAT FURTHER NEGOTIATIONS SHOULD HAVE BEEN CONDUCTED. OUR REVIEW OF THE DOCUMENTS FURNISHED BY THE FCC, AND IN PARTICULAR THE MEMORANDUM OF DISCUSSIONS WITH GAI, INDICATES THAT THOSE DISCUSSIONS COVERED ESSENTIALLY THE SAME TECHNICAL DEFICIENCIES IN GAI'S PROPOSAL THAT WERE THE BASIS ON WHICH ITS REVISED PROPOSAL WAS ULTIMATELY FOUND TO BE UNACCEPTABLE. WE HAVE HELD THAT WHERE TECHNICAL DEFICIENCIES WERE POINTED OUT IN INITIAL DISCUSSIONS AND WHERE THE REVISED PROPOSAL WAS DEFICIENT IN THE SAME RESPECTS, THE AGENCY WAS NOT REQUIRED TO CONDUCT FURTHER NEGOTIATIONS. 51 COMP. GEN. 433 (1972); 49 ID. 309 (1969). MOREOVER, WE HAVE RECOGNIZED THAT THE CONTENT AND EXTENT OF DISCUSSIONS NEEDED TO SATISFY THE REQUIREMENT FOR MEANINGFUL DISCUSSIONS IS PRIMARILY FOR DETERMINATION BY THE PROCURING ACTIVITY. 51 COMP. GEN. 621 (1972), 52 ID. 166 (1972). WHERE, AS HERE, THE CONTENTS OF FURTHER DISCUSSIONS WOULD BE MERELY TO REITERATE THE DEFICIENCIES POINTED OUT IN THE INITIAL ROUND OF DISCUSSIONS, IT MAY IN FACT BE UNFAIR TO OTHER OFFERORS TO ENGAGE IN SUCCESSIVE ROUNDS OF COMPETITION TO BRING A REVISED INADEQUATE PROPOSAL UP TO THE LEVEL OF ADEQUACY BY ASSISTING THAT OFFEROR TO OVERCOME WEAKNESSES THAT ARE A RESULT OF HIS OWN LACK OF DILIGENCE, COMPETENCE OR INVENTIVENESS IN PREPARING HIS INITIAL OR REVISED PROPOSAL. 51 COMP. GEN. 621, SUPRA.

A NUMBER OF ALLEGATIONS CONTAINED IN GAI'S LETTER OF PROTEST RELATE PRIMARILY TO THE FAIRNESS AND PROPRIETY OF THE TECHNICAL EVALUATION ACCORDED ITS PROPOSAL. BASICALLY, GAI MAINTAINS THAT THE REASONS FURNISHED IT AT THE DEBRIEFING CONFERENCE FOR ITS FAILURE TO ACHIEVE AN ACCEPTABLE RATING DO NOT JUSTIFY THE LOW RATING GIVEN ITS PROPOSAL.

AS FOR TWO OF THE REASONS RELIED ON BY THE FCC FOR THE LOW COMPOSITE SCOPE, GAI STATES THAT IT WAS NOT MADE AWARE OF THE FACT THAT THOSE FACTORS WOULD BE CONSIDERED IN THE EVALUATION. SPECIFICALLY, GAI STATES THAT IT WAS NOT INFORMED THAT IT WAS EXPECTED TO PROPOSE SPECIFIC TRAINING COURSES OR THAT THE PROPOSAL WAS TO INCLUDE A DETAILED METHODOLOGY FOR CONVERSION. HOWEVER, EVALUATION FACTOR 3.4, ENTITLED "ABILITY TO PRODUCE HIGH QUALITY TECHNICAL DOCUMENTATION, PROVIDE USER TRAINING AND INSURE SUCCESSFUL IMPLEMENTATION OF THE SYSTEM", WAS SUFFICIENTLY CLEAR IN ADVISING OFFERORS THAT THEIR PROPOSALS FOR PROVIDING USER TRAINING WILL BE A FACTOR IN EVALUATION. GAI'S FAILURE TO ADDRESS THE TYPE OF TRAINING TO BE PROVIDED USER PERSONNEL AS OPPOSED TO AUTOMATED DATA PROCESSING PERSONNEL OR TO ALLOCATE ANY TIME FOR THAT FUNCTION APPEARS REASONABLY TO HAVE BEEN TAKEN INTO CONSIDERATION BY THE FCC IN ARRIVING AT THE RATING THAT IN THE CONTEXT OF THE PARTICULAR REQUIREMENT - TO CONVERT FROM A MANUAL TO AN AUTOMATED SYSTEM - AN OFFEROR'S UNDERSTANDING OF AND METHODOLOGY FOR CONVERSION FROM THE EXISTING MANUAL SYSTEM WAS APPROPRIATELY CONSIDERED IN ASSESSING POTENTIAL FOR SUCCESSFUL IMPLEMENTATION.

AT THE DEBRIEFING CONFERENCE, GAI WAS ADVISED THAT ITS PROPOSAL WAS LESS THAN SATISFACTORY, IN PART, BECAUSE OF ITS FAILURE TO SUFFICIENTLY ADDRESS THE VARIOUS APPROACHES WHICH MIGHT BE TAKEN TO DATA BASE STRUCTURES. APPARENTLY, THIS DEFICIENCY WAS POINTED OUT DURING TECHNICAL DISCUSSIONS, BUT IN FCC'S VIEW GAI'S REVISED PROPOSAL NONETHELESS REMAINED LACKING IN AN IN-DEPTH ANALYSIS OF ALTERNATIVE APPROACHES. GAI ASSERTS THAT IN THE COURSE OF TECHNICAL DISCUSSIONS IT DID POINT OUT THE VARIOUS STRENGTHS AND WEAKNESSES OF SEVERAL SYSTEMS AND CAUTIONED FCC AGAINST LOCKING IN TO ANY PARTICULAR HARDWARE SYSTEM. IN REGARD TO THIS POINT, GAI FURTHER POINTS OUT THAT ITS PROPOSAL DID INCLUDE A PRESENTATION OF ITS PARTICULAR SUCCESSFUL APPROACH TO DATA BASE DESIGN AND IMPLEMENTATION.

WE ARE NOT IN A POSITION TO ASSESS THE DEPTH OF GAI'S ORAL PRESENTATION OF THE ALTERNATIVES AVAILABLE AND, IN THE ABSENCE OF ARBITRARINESS OR UNREASONABLENESS, THE TECHNICAL ASSESSMENT OF GAI'S PROPOSAL IS A MATTER FOR ADMINISTRATIVE DETERMINATION. 52 COMP. GEN. 382 (1972). IN THIS REGARD, WE NOTE THAT EVALUATION FACTOR 3.1 DOES IN FACT MAKE THE AGENCY'S TECHNICAL ASSESSMENT OF THE OFFEROR'S APPROACH A FACTOR FOR EVALUATION. THAT FACTOR SEEKS TO EVALUATE THE "DEGREE OF FLEXIBILITY AND INGENUITY PROPOSED TO APPROACH THE PROBLEM, ASSESS VIABLE ALTERNATIVES AND CARRY OUT THE WORK REQUIRED FOR ITS SOLUTION". GIVEN THE FAILURE OF GAI TO ADDRESS SUCH ALTERNATIVES IN ITS PROPOSAL, WE ARE UNABLE TO CONCLUDE THAT THE RATING OF 8 POINTS OUT OF A POSSIBLE 10 WAS UNREASONABLE OR UNWARRANTED. SIMILARLY, WE ARE WITHOUT ANY BASIS TO QUESTION THE FCC'S TECHNICAL CONCLUSIO5 THAT THE APPROACH TO DATA DESIGN AND IMPLEMENTATION PRESENTED BY GAI WARRANTED A SCORE OF NO MORE THAN THE ALLOCATED 7 POINTS OUT OF A POSSIBLE 10 FOR EVALUATION FACTOR 3.3, ENTITLED "METHODOLOGY PROPOSED TO THE GATHERING, CORRELATION, VISIBILITY AND STRUCTURING OF THE DATA REQUIRED FOR THE SYSTEM". 52 COMP. GEN. 382, SUPRA.

AT THE DEBRIEFING GAI WAS APPARENTLY ADVISED THAT A FACTOR CONTRIBUTING TO ITS LOW SCORE WAS ITS LACK OF PREVIOUS RELATED EXPERIENCE WITH REGULATORY AGENCIES (FACTOR 1.3). IN URGING THE UNFAIRNESS OF THE FCC'S RELIANCE ON THIS FACTOR GAI STATES THAT THERE IS NOTHING COMPLICATED ABOUT THE FCC'S REQUIREMENT FOR A MANAGEMENT INFORMATION SYSTEM AND THAT IT HAS PERFORMED RELATED SERVICES MANY TIMES. WHILE GAI ADMITS THAT IT LISTED ONLY TWO PREVIOUS CONTRACTS WITH REGULATORY AGENCIES, IT URGES THAT THIS FACT DOES NOT SUPPORT THE CONCLUSION THAT IT IS WITHOUT EXPERIENCE IN ADMINISTERING AND PERFORMING CONTRACTS SIMILAR IN SCOPE, DURATION AND APPLICATION. IN FACT GAI STATES THAT ITS PROPOSAL AT SECTION 2.1.2 AND AT FIGURE 2.1 DOES FURNISH A DISCUSSION OF ITS PRIOR EXPERIENCE. WHILE WE RECOGNIZE THAT ITS LACK OF RELATED EXPERIENCE WITH REGULATORY AGENCIES MAY NOT PROVIDE A FAIR AND FULL ASSESSMENT OF GAI'S RELEVANT EXPERIENCE, WE NOTE THAT EVALUATION FACTOR 1.3, ENTITLED "PREVIOUS EXPERIENCE WITH REGULATORY AGENCIES IN RELATED APPLICATIONS", IS NOT THE ONLY CRITERION ADDRESSED TO THE FACTOR OF EXPERIENCE. WE NOTE THAT EVALUATION FACTOR 2.3, ENTITLED "PAST CONTRACT PERFORMANCE IN THE DEVELOPMENT OF MANAGEMENT INFORMATION SYSTEMS OF THIS SCOPE AND NATURE", IS WEIGHTED TWICE AS HEAVILY AS THE EVALUATION FACTOR PERTAINING ONLY TO REGULATORY AGENCY CONTRACT EXPERIENCE, AND THAT OTHER CONTRACTUAL EXPERIENCE CITED BY THE PROTESTER WAS CONSIDERED. THUS, GAI'S LACK OF SUBSTANTIAL EXPERIENCE IN CONTRACTS WITH REGULATORY AGENCIES WAS NOT THE ONLY CONSIDERATION TO SUPPORT A FINDING AS TO GAI'S LACK OF RELEVANT EXPERIENCE.

GAI ALSO QUESTIONS THE FAIRNESS AND IMPARTIALITY OF THE FCC'S EVALUATION OF EVALUATION FACTOR 2.1, ENTITLED "DEGREE OF QUALIFICATION AND EXPERIENCE OF PERSONNEL PROPOSED TO WORK ON THE SYSTEM, TO INCLUDE EDUCATIONAL BACKGROUND, WORK EXPERIENCE AND COMPOSITION OF THE TEAM". TO BE ELIGIBLE FOR SELECTION A PROPOSAL MUST HAVE SCORED A MANDATORY MINIMUM OF 12 POINTS OUT OF A POSSIBLE 15 POINTS ON THIS PARTICULAR FACTOR. GAI'S PROPOSAL ACHIEVED A SCORE OF ONLY 7 POINTS.

IN EXPLAINING TO GAI THE BASIS FOR ITS LOW SCORE ON THIS PARTICULAR FACTOR, THE FCC POINTED FIRST TO THE FACT THAT GAI'S RESUME FOR SENIOR PROGRAMMER/ANALYST INDICATED A LACK OF EXPERIENCE IN COBOL AND LIMITED EXPERIENCE WITH THE PARTICULAR EQUIPMENT TO BE USED. THE FCC REPORTS THAT EVEN THOUGH THIS INSUFFICIENT EXPERIENCE WAS ADDRESSED DURING TECHNICAL DISCUSSIONS THE REVISED RESUME PRESENTED BY GAI WITH ITS REVISED PROPOSAL FAILED TO REFLECT THE IN-DEPTH EXPERIENCE FELT TO BE NEEDED. IN ADDITION, THE FCC VIEWED GAI AS LACKING THE IN-DEPTH AVAILABLE STAFFING REQUIRED FOR BACK-UP IN THE EVENT THAT PERSONNEL REPLACEMENTS BECAME NECESSARY AND CONSIDERED ITS THEN EXISTING CONTRACTUAL COMMITMENTS AS SPREADING ITS PERSONNEL RESOURCES UNDULY THIN.

GAI STATES THAT THE FCC'S FINDING AS TO THE INSUFFICIENCY OF ITS PERSONNEL RESOURCES AND STAFFING REFLECTS A PREJUDICIAL ATTITUDE ON THE COMMISSION'S PART. SINCE GAI HAS OFFERED NO EVIDENCE IN SUPPORT OF THIS ALLEGATION WE HAVE NO BASIS TO QUESTION THE CORRECTNESS OF THE ADMINISTRATIVE FINDING.

AS TO THE FCC'S FINDING THAT GAI'S SENIOR PROGRAMMER/ANALYST'S TECHNICAL BACKGROUND WAS INSUFFICIENT TO THE TASK REQUIRED, GAI'S OBJECTIONS ARE MORE SPECIFICALLY STATED. IT IS URGED FIRST THAT UNDUE WEIGHT WAS ACCORDED THIS FACT INASMUCH AS THE ANALYST'S UNACCEPTABILITY WAS IMPROPERLY FOUNDED, AT LEAST IN PART, ON A REFERENCE OBTAINED TELEPHONICALLY FROM THE NAVAL SHIPS SYSTEM COMMAND FROM AN INDIVIDUAL WHO GAI CHARGES WAS NOT SUFFICIENTLY FAMILIAR WITH THE ANALYST'S CAPABILITIES OR WITH THE FCC'S PARTICULAR REQUIREMENTS. LASTLY, WITH RESPECT TO THIS POINT, GAI STATES THAT THE FCC DID NOT PROVIDE A DEFINITIVE LIST OF PERSONNEL CATEGORIES AS PART OF THE RFP AND AT NO TIME ADVISED GAI THAT ANY INDIVIDUAL'S QUALIFICATIONS WERE UNACCEPTABLE.

THE FCC TAKES EXCEPTION TO GAI'S STATEMENT THAT IT WAS NOT ADVISED OF INSUFFICIENCIES IN THE QUALIFICATIONS OF ITS PERSONNEL, AND POINTS OUT THAT PERSONNEL QUALIFICATIONS WERE IN FACT THE TOPIC OF LENGTHY DISCUSSIONS. AND, IN FACT, THE FCC'S MEMORANDUM AND NOTES PERTAINING TO THE SUBSTANCE OF THOSE DISCUSSIONS SUPPORT THE CONTENTION THAT NOT ONLY PERSONNEL QUALIFICATIONS IN GENERAL BUT THOSE OF GAI'S SENIOR ANALYST IN PARTICULAR WERE DISCUSSED. AS SUGGESTED BY FCC, THIS IS FURTHER CONFIRMED BY GAI'S OWN ACTION IN SUBMITTING ADDITIONAL AND UPGRADED RESUMES WITH ITS REVISED PROPOSAL. WHOSE EFFORTS ARE TO BE FURNISHED UNDER THE TERMS OF GAI'S PROPOSAL AND HENCE THAT HER PARTICULAR QUALIFICATIONS WERE GIVEN UNDUE WEIGHT, WE NOTE THAT SHE WAS IN FACT ONE OF THE TWO PRINCIPAL EMPLOYEES PROPOSED BY GAI AND WAS THE SECOND MOST RESPONSIBLE OF THE TOTAL OF SEVEN EMPLOYEES PROPOSED. FURTHER, WE POINT OUT THAT SHE WAS TO PROVIDE FROM ONE QUARTER TO ONE FIFTH OF THE TOTAL CONTRACTUAL EFFORT IN TERMS OF MAN HOURS. IN VIEW OF THE SENIOR ANALYST'S IMPORTANCE TO THE TOTAL CONTRACT EFFORT WE ARE UNABLE TO CONCLUDE THAT THE FCC'S RELIANCE ON THE ANALYST'S LACK OF BACKGROUND IN THE AREA WAS UNREASONABLE. WHILE WE HAVE LITTLE INFORMATION AS TO THE SUBSTANCE OF THE FCC'S CONTRACT WITH NAVAL SHIPS SYSTEM COMMAND PERSONNEL, WE FAIL TO SEE THE IMPROPRIETY OF THIS MANNER OF VERIFICATION OF AN INDIVIDUAL'S QUALIFICATIONS AS REFLECTED IN THE RESUMES PROVIDED BY AN OFFEROR. NEXT, GAI CITES SECTION 1-1.703 OF THE FEDERAL PROCUREMENT REGULATIONS TO THE EFFECT THAT IT IS THE POLICY OF THE GOVERNMENT TO AID SMALL BUSINESS CONCERNS AND TO PLACE A FAIR PROPORTION OF THE TOTAL GOVERNMENT PURCHASE AND CONTRACTS WITH SUCH SMALL CONCERNS. GAI SUBMITS GENERALLY THAT THE SPIRIT AND INTENT OF THIS REGULATION WERE NOT FOLLOWED AND STATES MORE SPECIFICALLY:

"THE STATEMENTS MADE BY THE FCC PRESENTED ABOVE ALL APPEAR TO BE ARBITRARY AND CAPRICIOUS AND IMPLY THAT EMPHASIS WAS PLACED ON THE SIZE OF THE COMPANY SUBMITTING THE PROPOSAL. IN THE FIRST CASE, THE QUESTION OF "CREDIT AND CAPACITY" CAN ONLY BE RESOLVED BY THE SBA, AND THIS AGENCY SHOULD HAVE REQUESTED TO REVIEW THE CREDIT AND CAPACITY OF GAI TO DETERMINE IF INDEED GAI COULD NOT SUPPORT ANY REQUIRED BACK-UP STAFFING. SECONDLY, GAI HAD DETERMINED ITS OWN ABILITY TO ASSIGN PERSONNEL RESOURCES TO THE PROPOSED CONTRACT, AND HAD IDENTIFIED EMPLOYEES AS 'KEY PERSONNEL'. NO SMALL BUSINESS CAN AFFORD THE LUXURY OF MAINTAINING A STABLE OF EXCESS EMPLOYEES ON OVERHEAD AND GAI IS NO EXCEPTION. HOWEVER, GAI HAS BEEN ABLE TO ATTRACT HIGHLY QUALIFIED PROFESSIONALS WHENEVER QUICK REACTION TO CLIENT NEEDS WAS NECESSARY. THE THIRD POINT REVEALS A LACK OF FCC'S INTEREST IN FOLLOWING THE SPIRIT OF FPR 1-1.702."

IN PARTICULAR, IT APPEARS THAT GAI'S CONCERN IS WITH THE FACT THAT EVALUATION FACTOR 2.1 ENTITLED "DEGREE OF QUALIFICATIONS AND EXPERIENCE OF PERSONNEL PROPOSED TO WORK ON SYSTEM, ETC ***" DISCUSSED ABOVE, RELATES TO ITS CAPACITY TO PERFORM THE WORK INVOLVED. AS IS SUGGESTED, DETERMINATION OF THE CREDIT OR CAPACITY OF A SMALL BUSINESS IS REQUIRED TO BE MADE BY THE SMALL BUSINESS ADMINISTRATION (SBA) IN ACCORDANCE WITH THE REQUIREMENT THEREFOR AT SECTION 1-1.708-2 OF THE FEDERAL PROCUREMENT REGULATIONS. AND, IN GENERAL, WE CONCUR WITH GAI'S VIEW THAT CERTAIN OF THE EVALUATION CRITERIA IN THE RFP, EVALUATION FACTORS 2.1, 2.2 AND 2.3 IN PARTICULAR, DO RELATE TO THE MATTER OF CAPACITY. HOWEVER, IN THE CONTEXT OF NEGOTIATED PROCUREMENTS, WE HAVE RECOGNIZED THAT CONSIDERATION OF CERTAIN FACTORS THAT GENERALLY RELATE TO CAPACITY AND CREDIT IS PROPER IN DETERMINING TECHNICAL ACCEPTABILITY OF PROPOSALS WHERE, AS HERE, THOSE REASONS ARE NOT THE SOLE BASES FOR REJECTION, 46 COMP. GEN. 893 (1967), B-177822, JULY 16, 1973, AND B 179089, DECEMBER 28, 1973.

ANOTHER OF GAI'S OBJECTIONS IS THAT THE FCC IMPROPERLY FAILED TO NOTIFY IT PRIOR TO AWARD THAT ITS PROPOSAL WAS TECHNICALLY UNACCEPTABLE. THIS OBJECTION IS PREDICATED ON THE LANGUAGE OF SECTION 1-3.805-1(B) OF THE FEDERAL PROCUREMENT REGULATIONS, WHICH, INSOFAR AS PERTINENT HERE, PROVIDES:

"*** IN ADDITION, ALL SUCH OFFERORS SHALL BE INFORMED THAT AFTER THE SPECIFIED DATE FOR THE CLOSING OF NEGOTIATIONS, NO INFORMATION (OTHER THAN PRE-AWARD NOTICE OF UNACCEPTABLE PROPOSALS AND OFFERS) WILL BE FURNISHED TO ANY OFFEROR UNTIL AWARD HAS BEEN MADE ***."

THE FCC HAS INDICATED THAT ITS FINAL EVALUATION OF GAI'S REVISED PROPOSAL AND THE FINDING THAT IT WAS TECHNICALLY UNACCEPTABLE WAS MADE ON JUNE 13, 1974, WHILE NOTICE TO THIS EFFECT WAS GIVEN TO GAI BY FCC'S LETTER OF JUNE 25, 1974. IN RESPONDING TO GAI'S CONTENTION THAT IT UNDULY DELAYED THE GIVING OF NOTICE, FCC POINTS OUT THAT THE ABOVE REFERENCED LETTER WAS DISPATCHED ONE DAY PRIOR TO AWARD. GAI CONTENDS THAT THE FCC'S FAILURE TO NOTIFY IT OF THE DETERMINATION OF UNACCEPTABILITY AT AN EARLIER DATE DENIED IT AN OPPORTUNITY TO DISCUSS POTENTIAL PROBLEMS AND TO FILE AN OFFICIAL PROTEST PRIOR TO AWARD.

CONTRARY TO GAI'S SUGGESTION, THE FUNCTION OF THE NOTICE PROVISION OF SECTION 1-3.805-1 IS NOT TO EXTEND AN ADDITIONAL RIGHT TO UNACCEPTABLE OFFERS TO DISCUSS OR REMEDY INSUFFICIENCIES IN THEIR PROPOSALS. INDICATED ABOVE, AGENCIES MAY PROPERLY TERMINATE DISCUSSION WITH AN UNACCEPTABLE OFFEROR AT SUCH POINT AS THEY DEEM APPROPRIATE. RATHER, THE PRIMARY FUNCTION OF THE NOTICE REQUIREMENT IS TO ASSURE THAT OFFERORS DO NOT NEEDLESSLY EXPEND EFFORTS IN FURTHERING PROPOSALS WHICH HAVE ALREADY BEEN DEEMED UNACCEPTABLE. WHILE WE GENERALLY CONSIDER THAT THE NOTICE REQUIRED BY 1-3,805-1(B) SHOULD BE GIVEN AS SOON AS POSSIBLE AFTER A DETERMINATION OF UNACCEPTABILITY HAS BEEN MADE, IT DOES NOT APPEAR THAT THE 12 DAY PERIOD FROM THE FINDING OF TECHNICAL ACCEPTABILITY BY THE TECHNICAL EVALUATION TEAM ON JUNE 13 TO JUNE 25, THE DATE ON WHICH GAI WAS GIVEN NOTICE TO THAT EFFECT, WAS UNDULY PROLONGED. MOREOVER, WE HAVE CONSTRUED THE LANGUAGE OF SECTION 1-3.805 1(B) AS PERMITTING, BUT NOT REQUIRING, NOTIFICATION TO AN OFFEROR THAT A TECHNICAL PROPOSAL HAS BEEN DETERMINED UNACCEPTABLE SO AS TO PRECLUDE MEANINGFUL NEGOTIATIONS, AND WE HAVE RECOGNIZED THAT THAT NOTICE REQUIREMENT IS PROCEDURAL AND THAT THE FAILURE TO NOTIFY AN UNSUCCESSFUL OFFEROR PROVIDES NO LEGAL BASIS FOR DISTURBING AN AWARD. B-177822, JULY 16, 1973.

FOR THE FOREGOING REASONS, THE PROTEST OF GALLER ASSOCIATES, INCORPORATED, IS DENIED. IN VIEW OF THIS DETERMINATION, WE FIND NO PREJUDICE TO GAI AS A RESULT OF ITS INABILITY TO FILE A PROTEST PRIOR TO AWARD AS A RESULT OF ANY DELAY IN FURNISHING NOTICE OF THE UNACCEPTABILITY OF ITS PROPOSAL.

HOWEVER, WE NOTE ONE DEFECT IN THE SUBJECT REQUEST FOR PROPOSALS WHICH WE ARE CALLING TO THE ATTENTION OF THE AGENCY TO PREVENT A RECURRENCE IN FUTURE SOLICITATIONS. AS NOTED ABOVE, THE EVALUATION PROVISION OF THE RFP REQUIRED AS A CONDITION OF ELIGIBILITY FOR SELECTION THAT OFFERORS ATTAIN AN OVERALL SCORE OF 80 PERCENT AND ACHIEVE A MINIMUM PERCENTAGE RATING ON CERTAIN CRITERIA. WE HAVE HELD THAT THE USE OF A PREDETERMINED SCORE FOR ACCEPTABILITY CONSTITUTES AN IMPROPER METHOD OF DETERMINING COMPETITIVE RANGE AS SUCH METHOD IS NOT CONDUCIVE TO MAXIMIZING COMPETITION. 50 COMP. GEN. 59 (1970). IN THAT CASE WE NOTED THAT THE PRIMARY CONSIDERATION IN NEGOTIATED PROCUREMENTS IS DISCUSSION WITH ALL OFFERORS WITHIN THE COMPETITIVE RANGE, AND THAT BORDERLINE PROPOSALS SHOULD NOT BE AUTOMATICALLY EXCLUDED FROM CONSIDERATION IF THEY ARE REASONABLY SUSCEPTIBLE TO BEING MADE ACCEPTABLE BY ADDITIONAL OR CLARIFYING INFORMATION. ALTHOUGH THE SOLICITATION WAS DEFECTIVE IN REGARD TO INCLUDING PREDETERMINED SCORES FOR ACCEPTABILITY, THE ACTUAL EVALUATION WAS NOT OBJECTIONABLE BECAUSE "BORDERLINE" PROPOSALS, INCLUDING THAT OF THE PROTESTER, WERE NOT AUTOMATICALLY REJECTED.