B-181741, DEC 6, 1974

B-181741: Dec 6, 1974

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PROCURING ACTIVITY'S REJECTION OF PROTESTER'S PROPOSAL AS NOT WITHIN TECHNICAL COMPETITIVE RANGE WAS PROPER WHERE THERE IS NO EVIDENCE OF RECORD THAT PROPOSAL WAS REASONABLY SUSCEPTIBLE OF BEING MADE TECHNICALLY ACCEPTABLE THROUGH DISCUSSIONS. AS SUCH DETERMINATION IS MATTER OF ADMINISTRATIVE DISCRETION WHICH WILL NOT BE DISTURBED ABSENT CLEAR SHOWING OF ABUSE. LOWER ESTIMATED COSTS NEED NOT BE CONSIDERED CONTROLLING WHEN TECHNICAL PROPOSAL IS UNACCEPTABLE AND COST REIMBURSEMENT TYPE CONTRACT IS INVOLVED. N00024-74-R-7386 (S) WAS ISSUED BY THE NAVAL SHIP SYSTEMS COMMAND (NSSC). THE CLOSING DATE FOR SUBMISSION OF PROPOSALS WAS SET FOR MARCH 4. THE TECHNICAL PROPOSALS WERE FORWARDED TO THE TECHNICAL EVALUATION BOARD (TEB) FOR EVALUATION IN ACCORDANCE WITH THE CRITERIA SET FORTH IN THE SOLICITATION.

B-181741, DEC 6, 1974

PROCURING ACTIVITY'S REJECTION OF PROTESTER'S PROPOSAL AS NOT WITHIN TECHNICAL COMPETITIVE RANGE WAS PROPER WHERE THERE IS NO EVIDENCE OF RECORD THAT PROPOSAL WAS REASONABLY SUSCEPTIBLE OF BEING MADE TECHNICALLY ACCEPTABLE THROUGH DISCUSSIONS, AS SUCH DETERMINATION IS MATTER OF ADMINISTRATIVE DISCRETION WHICH WILL NOT BE DISTURBED ABSENT CLEAR SHOWING OF ABUSE. MOREOVER, LOWER ESTIMATED COSTS NEED NOT BE CONSIDERED CONTROLLING WHEN TECHNICAL PROPOSAL IS UNACCEPTABLE AND COST REIMBURSEMENT TYPE CONTRACT IS INVOLVED. SEE DECISIONS CITED.

NATIONAL DESIGNERS, INC.:

ON JANUARY 31, 1974, REQUEST FOR PROPOSALS (RFPNO. N00024-74-R-7386 (S) WAS ISSUED BY THE NAVAL SHIP SYSTEMS COMMAND (NSSC), DEPARTMENT OF THE NAVY FOR 2,500 MANHOURS OF NAVAL ARCHITECTURAL, ENGINEERING AND OTHER SUPPORT SERVICES (PLUS THREE OPTIONS FOR A TOTAL ADDITIONAL 12,500 MANHOURS). THE RFP CALLED FOR A COST-PLUS-FIXED-FEE TYPE CONTRACT. THE CLOSING DATE FOR SUBMISSION OF PROPOSALS WAS SET FOR MARCH 4, 1974, AND NATIONAL DESIGNERS, INCORPORATED (NDI), ALONG WITH FOUR OTHER CONCERNS SUBMITTED A PROPOSAL.

THE TECHNICAL PROPOSALS WERE FORWARDED TO THE TECHNICAL EVALUATION BOARD (TEB) FOR EVALUATION IN ACCORDANCE WITH THE CRITERIA SET FORTH IN THE SOLICITATION. THE RFP, SECTION D, AT PAGE 21, STATED IN PERTINENT PART THAT, "THE TECHNICAL PROPOSAL WILL BE A PRIMARY FACTOR IN DETERMINING AWARD." WEIGHTING FACTORS WERE ASSIGNED PRIOR TO RECEIPT OF PROPOSALS TO EACH OF THE EVALUATION CRITERIA DELINEATED IN SECTION D.

ON APRIL 8, 1974, THE TEB REVIEWED THE RESULTS OF THE INDIVIDUAL EVALUATIONS AND ARRIVED AT A SCORE FOR EACH OF THE EVALUATION AREAS IN THE RESPECTIVE PROPOSALS. THE WEIGHTING FACTORS WERE APPLIED TO THESE SCORES AND EACH PROPOSAL WAS RATED ON A SCALE OF 0-100 AS FOLLOWS:

RANK FIRM SCORE % OF TOP SCORE

1 WASHINGTON TECHNOLOGICAL ASSOCIATES 80.5 --

2 THE STANWICK CORPORATION 63.0 78%

3 NDI 57.2 71%

4 O.E.D. SYSTEMS, INCORPORATED 56.9 71%

5ART ANDERSON ASSOCIATES 52.8 66%

THE TEB IN ITS REPORT DATED APRIL 22, 1974, TO THE CONTRACTING OFFICER, DETERMINED THAT ONLY WASINGTON TECHNOLOGICAL ASSOCIATES (WTA) WAS WITHIN THE TECHNICAL COMPETITIVE RANGE. THE RECORD FURTHER INDICATES THAT THE TEB EXAMINED THE MERITS AND DEFICIENCIES OF EACH OF THE OTHER PROPOSALS TO DETERMINE WHETHER THERE WAS ANY PROPOSAL REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE FOR AWARD THROUGH DISCUSSIONS. AFTER SUCH EXAMINATION, THE TEB CONCLUDED THAT THE REMAINING FIRMS WERE NOT TECHNICALLY COMPETITIVE AND THAT REQUESTING ADDITIONAL INFORMATION OF THE NATURE INITIALLY REQUESTED IN THE RFP WOULD NOT BRING THE OTHER OFFERORS WITHIN THE COMPETITIVE RANGE WITHOUT DESTROYING THE BASIS FOR COMPETITION BY LIMITING THE GOVERNMENT'S ABILITY TO MEASURE THE INGENUITY, EXPERIENCE, AND UNDERSTANDING OF EACH OFFEROR. THE TEB THEN RECOMMENDED THAT NEGOTIATIONS FOR AWARD WITH WTA BE INITIATED. ACCORDINGLY, THE CONTRACTING OFFICER REQUESTED THAT WTA SUBMIT A "BEST AND FINAL" OFFER. WTA WHILE NOT MODIFYING ITS TECHNICAL PROPOSAL, DID REDUCE ITS ESTIMATED COSTS WHICH RESULTED IN A LOWER AVERAGE DOLLAR PER MANHOUR RATE. IN ITS REPORT DATED MAY 31, 1974, THE TEB REITERATED ITS PREVIOUS DETERMINATION THAT WTA WAS THE ONLY TECHNICALLY COMPETITIVE OFFEROR AND THAT ITS OVERALL PRICE WAS REASONABLE. IT FURTHER RECOMMENDED THAT AWARD BE MADE TO THE FIRM AND REQUESTED THE ESTABLISHMENT OF A CONTRACT AWARD REVIEW PANEL (CARP). THE RECORD INDICATES THAT A CARP WAS FORMED AND AFTER A COMPLETE REVIEW OF THE ENTIRE EVALUATION PROCESS, INCLUDING TEB'S RECOMMENDATIONS, CONCLUDED THAT IT WAS MOST ADVANTAGEOUS TO THE GOVERNMENT TO MAKE AWARD TO WTA. ACCORDINGLY, WTA WAS AWARDED THE CONTRACT ON JUNE 25, 1974.

IN A LETTER DATED JULY 3, 1974, NDI PROTESTED THE REJECTION OF ITS PROPOSAL. NDI CONTENDS THAT ITS PAST AND PRESENT EXPERIENCE IN AIRCRAFT SUPPORT SERVICES, WEAPONS HANDLING AND STORAGE, AND REPLENISHMENT, IS COMPARABLE TO ANYONE IN THE FIELD AND QUALIFIES IT TO PERFORM THE REQUIRED SERVICES. FURTHERMORE, THE PROTESTER ALLEGES THAT ITS PERSONNEL ARE EMINENTLY QUALIFIED WITH THE SPECIFIC EXPERIENCES REQUIRED BY THE RFP, AND THAT THESE FACTORS VIEWED IN CONJUNCTION WITH ITS LOWER COST PROPOSAL REQUIRE THAT ITS TECHNICAL PROPOSAL, QUALIFICATIONS AND PROPOSED COST BE RE-EVALUATED.

FOR THE REASONS STATED BELOW THE PROTEST IS DENIED. ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-805.1(A)(1974) REQUIRES DISCUSSIONS ONLY WITH RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED. THE TERM "OTHER FACTORS" HAS BEEN HELD TO INCLUDE THE TECHNICAL ACCEPTABILITY OF PROPOSALS. SEE 46 COMP. GEN. 606, 610 (1967). WE HAVE HELD THAT BORDERLINE PROPOSALS SHOULD NOT AUTOMATICALLY BE EXCLUDED FROM CONSIDERATION IF REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE. B 179160, MARCH 13, 1974. HOWEVER, IT IS NOT THE FUNCTION OF OUR OFFICE TO EVALUATE PROPOSALS AND WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING OFFICIALS BY MAKING AN INDEPENDENT DETERMINATION AS TO WHICH OFFEROR IN A NEGOTIATED PROCUREMENT SHOULD BE RATED FIRST AND THEREBY RECEIVE AN AWARD. B-181696, OCTOBER 8, 1974. THE OVERALL DETERMINATION OF WHETHER A PROPOSAL IS TECHNICALLY ACCEPTABLE AND WITHIN THE COMPETITIVE RANGE IS A MATTER OF ADMINISTRATIVE DISCRETION WHICH WILL NOT BE DISTURBED ABSENT A CLEAR SHOWING THAT THE DETERMINATION WAS ARBITRARY OR UNREASONABLE. B-179263, APRIL 17, 1974.

THE FOLLOWING NARRATIVE DESCRIPTION OF THE STRENGTH AND WEAKNESSES OF THE NDI TECHNICAL PROPOSAL WAS PROVIDED BY THE TEB TO SUPPORT THE TECHNICAL EVALUATION SCORING AND ITS DETERMINATION THAT NDI WAS NOT WITHIN THE COMPETITIVE RANGE:

"PERSONNEL

"THE KEY PERSONNEL PRESENTED BY NDI WERE RATED AS AVERAGE. PERSONNEL HAVE HAD SOME EXPERIENCE IN AIRCRAFT SUPPORT (CEI-2 CATAPULT, SASI PROGRAM), IN WEAPON SYSTEMS (CAW SYSTEM, FIREYE WEAPON SYSTEM), BUT NONE IDENTIFIED IN UNDERWAY REPLENISHMENT AREAS. EIGHT OF THE FIRST TEN PERSONNEL (ELEVEN RESUMES WERE PROVIDED) HAVE GRADUATE DEGREES AND FOUR HAVE HAD PRIOR NAVY EXPERIENCE.

"BACKGROUND AND EXPERIENCE

"NDI'S EXPERIENCE IN AIRCRAFT SUPPORT SYSTEMS APPEARS TO RUN FROM 1969 TO THE PRESENT. THEY HAVE IDENTIFIED THIRTEEN STUDIES FOR NAEC AND NAVAIR. THE SUPPORT COVERS AIRCRAFT CARRIERS AND OTHER SURFACE SHIPS (LPH AND SES) AND BOTH FIXED WING AND HELICOPTER AIRCRAFT. NDI'S EXPERIENCE IN WEAPON SUPPORT SYSTEMS RANGES FROM 1966 TO THE PRESENT. THIRTEEN STUDIES HAVE BEEN PERFORMED FOR NAEC. WEAPON SYSTEMS, HOWEVER, APPEAR LIMITED TO AVIONICS WEAPONS AND TO AIRCRAFT CARRIERS. (OTHER SYSTEMS ARE IDENTIFIED BY NAME IN A SUMMARY PAGE BUT NO INFORMATION IS PROVIDED CONCERNING THE NATURE OF STUDIES IF ANY). NDI DOES NOT APPEAR TO HAVE EXPERIENCE IN HANDLING AND STORAGE SYSTEMS. (AGAIN TITLES APPEAR IN THE SUMMARY PAGE, BUT NO SUBSTANTIVE INFORMATION IS GIVEN ELSEWHERE.) NDI ALSO PROVIDES NO INFORMATION ON STUDIES RELATING TO UNDERWAY REPLENISHMENT, ALTHOUGH IT IS ASSUMED THAT THEY HAD SOMETHING TO DO WITH IRRP AND AALW. OVERALL, NDI WAS RATED AS AVERAGE IN THEIR EXPERIENCE IN THE AREAS OF INTEREST FOR THIS PROPOSAL.

"TASK ESTIMATION

"NDI'S ABILITY TO ASSESS AND ESTIMATE THE THREE SAMPLE TASKS DESCRIBED IN THE RFP WAS RATED AS AVERAGE, NDI PRESENTED A REASONABLE APPROACH, PROFESSIONAL SKILLS WITH ASSOCIATED MANHOURS, END PRODUCTS AND COST ESTIMATES FOR EACH TASK. END PRODUCTS FOR THE TASK ON AIRCRAFT SUPPORT SYSTEMS COULD HAVE BEEN MORE DEFINITIVE.

"UNDERSTANDING

"NDI'S UNDERSTANDING OF THE FOUR AREAS IDENTIFIED IN THE RFP WAS RATED AS AVERAGE. INPUTS, OUTPUTS AND TYPES OF ANALYSIS WERE IDENTIFIED FOR THREE OF THE AREAS. THE AREA ADDRESSING WEAPON SUPPORT WAS NOT ADDRESSED ALTHOUGH IT APPEARED TO BE MIXED IN TO THE DESCRIPTION OF HANDLING AND STORAGE SYSTEMS.

"ASSURED CAPABILITY

"NDI APPEARS TO PLEDGE UP TO 60 PERSONNEL TO THIS WORK. THIS IS MANY TIMES MORE THAN IS ANTICIPATED FOR THIS EFFORT (ABOUT FIFTEEN IS CONSIDERED SUFFICIENT). NDI IS RATED AS VERY GOOD. NDI WILL ASSIGN AN UNIDENTIFIED PROGRAM MANAGER (PROJECT ENGINEER?) FOR ALL WORK UNDER THE CONTRACT. LIAISON WITH THE NAVSEC TPOC APPEARS TO BE ACCOMPLISHED BY THE PROGRAM MANAGER, THUS INTRODUCTING AN UNDERSIRABLE FILTER INTO THE LIAISON. NO INFORMATION IS PROVIDED ON SUBCONTRACTING POLICY OF NDI. APPARENTLY THEY DO NOT CONSIDER PERSONAL SERVICES OF SUFFICIENT IMPORTANCE TO DISCUSS. NDI'S MANAGEMENT AS DESCRIBED IN THIS PROPOSAL WAS RATED AS AVERAGE.

"PROPOSAL

"NDI'S PROPOSAL WAS RATED AS AVERAGE."

BASED ON OUR REVIEW OF THE RECORD, PARTICULARLY THE POINT SCORE EVALUATIONS MADE BY THE TEB AND THE ABOVE NARRATIVE ANALYSIS OF NDI'S PROPOSAL, WE ARE UNABLE TO CONCLUDE THAT NSSC ACTED UNREASONABLY IN ITS DETERMINATION THAT NDI'S PROPOSAL WAS NOT WITHIN THE TECHNICAL COMPETITIVE RANGE FOR THE SUBJECT PROCUREMENT. IN THIS CONNECTION, IT WAS DETERMINED THAT PROPOSALS NOT SCORING WITHIN 15 PERCENT OF THE TOP RATED PROPOSAL WOULD NOT BE CONSIDERED WITHIN THE COMPETITIVE RANGE FROM A TECHNICAL STANDPOINT. ALTHOUGH NDI'S PROPOSAL WAS RATED "AVERAGE", IT WAS SCORED 29 PERCENT BELOW THE HIGHEST RATED PROPOSAL. WHILE NDI HAS EXPRESSED GENERAL DISAGREEMENT WITH THE RATING OF ITS PROPOSAL, IT HAS FAILED TO PROVIDE ANY SPECIFIC EVIDENCE INDICATING UNREASONABLENESS IN THIS REGARD. MOREOVER, THE TEB CONCLUDED THAT A REQUEST FOR ADDITIONAL INFORMATION WOULD NOT BRING NDI WITHIN THE COMPETITIVE RANGE. SINCE WE ARE UNABLE TO CONCLUDE ON THE RECORD BEFORE US THAT THE NDI PROPOSAL WAS READILY SUSCEPTIBLE OF BEING MADE TECHNICALLY ACCEPTABLE THROUGH DISCUSSIONS, NSSC WAS UNDER NO OBLIGATION TO ENTER INTO TECHNICAL DISCUSSIONS WITH THE PROTESTER. COMP. GEN. 382, SUPRA.

FINALLY, NDI HAS STRESSED THE FACT THAT ITS PROPOSAL WAS LOW AS TO ESTIMATED COSTS IN COMPARISON TO WTA'S COST PROPOSAL. IN THIS REGARD, IT MUST BE NOTED THAT THE COMPETITIVE RANGE IN A NEGOTIATED PROCUREMENT ENCOMPASSES BOTH PRICE AND TECHNICAL CONSIDERATIONS. 50 COMP. GEN. 1 (1970). WHILE EITHER FACTOR CAN BE DETERMINATIVE OF WHETHER AN OFFER IS WITHIN THE COMPETITIVE RANGE, WE HAVE FREQUENTLY RECOGNIZED THAT WHEN AN OFFEROR SUBMITS AN UNACCEPTABLE TECHNICAL PROPOSAL, SUCH OFFEROR MAY BE EXCLUDED FROM THE COMPETITIVE RANGE WITHOUT REGARD TO ITS LOWER PROPOSED COSTS. B-179263, SUPRA; B-179793, FEBRUARY 26, 1974. SINCE NSSC DETERMINED THAT NDI'S PROPOSAL DID NOT MEET THE ESTABLISHED MINIMUM TECHNICAL CRITERIA, THERE WAS NO REQUIREMENT FOR DISCUSSIONS EVEN THOUGH ITS COST ESTIMATE WAS LOWER THAN WTA'S. IN THIS CONNECTION, ESTIMATED COSTS AND PROPOSED FEES ARE NOT CONTROLLING IN SELECTING A CONTRACTOR FOR A COST-REIMBURSEMENT TYPE CONTRACT. ASPR 3-803(C)(1974).

FOR THE FOREGOING REASONS, THE PROTEST IS DENIED.