B-181800, MAY 1, 1975

B-181800, MAY 1, 1975

1. ALTHOUGH SUCCESSFUL OFFEROR FAILED TO RESPOND TO AGENCY ADVERTISEMENT IN COMMERCE BUSINESS DAILY SEEKING INFORMATION FROM ORGANIZATION AS TO THEIR QUALIFICATIONS, IT WOULD HAVE BEEN IMPROPER TO EXCLUDE SUCH OFFEROR FROM COMPETITION AS IT IS PRINCIPAL TENET OF COMPETITIVE SYSTEM THAT BIDS OR PROPOSALS BE SOLICITED TO MAXIMUM EXTENT CONSISTENT WITH SERVICES OR ITEMS TO BE PROCURED. 2. MERE ALLEGATIONS OF BIASED EVALUATION INCONSISTENT WITH RFP EVALUATION CRITERIA AND APPLICABLE REGULATIONS PROVIDE NO BASIS TO INTERFERE WITH AWARD WHERE RECORD REASONABLY SUPPORTS AGENCY'S DETERMINATION AS TO RELATIVE TECHNICAL MERIT OF PROPOSALS.

INSTITUTE FOR SOCIAL CONCERNS:

THE INSTITUTE FOR SOCIAL CONCERNS (ISC) HAS PROTESTED THE AWARD OF A CONTRACT TO THE SOCIAL ACTION RESEARCH CENTER (SARC) UNDER REQUEST FOR PROPOSALS (RFP) NO. ADM-NIDA-74-187, ISSUED BY THE NATIONAL INSTITUTE OF DRUG ABUSE (NIDA).

ON MARCH 26, 1974, THE COMMERCE BUSINESS DAILY, UNDER THE "RESEARCH AND DEVELOPMENT SOURCES SOUGHT" CATEGORY, INCLUDED AN NIDA ADVERTISEMENT SOLICITING INFORMATION FROM ORGANIZATIONS "HAVING THE CAPABILITY TO DELIVER DRUG ABUSE TRAINING TO STATE DRUG ABUSE PERSONNEL; TREATMENT, REHABILITATION, VOCATIONAL, HOSPITAL, AND CORRECTIONS PERSONNEL ***." THE ADVERTISEMENT ALSO ADVISED THAT "THIS IS NOT A REQUEST FOR PROPOSALS ***. ONLY THOSE SOURCES DEEMED BEST QUALIFIED FOR THE WORK UNDER CONSIDERATION WILL BE INVITED TO SUBMIT PROPOSALS ***." SEVERAL ORGANIZATIONS, INCLUDING ISC, ANSWERED THE ADVERTISEMENT, BUT SARC WAS NOT AMONG THOSE RESPONDING. ON APRIL 29, 1974, THE REQUEST FOR PROPOSALS WAS ISSUED WITH A MAY 28, 1974, DUE DATE FOR SUBMISSION OF PROPOSALS. ON MAY 14, 1974, THE DUE DATE WAS EXTENDED TO MAY 31, 1974. RFP'S WERE SENT TO THIRTEEN ORGANIZATIONS, THREE OF WHICH SUBMITTED TIMELY PROPOSALS. SARC WAS ONE OF TWO OF THE THIRTEEN ORGANIZATIONS WHICH RECEIVED RFPS, ALTHOUGH THEY HAD NOT RESPONDED TO THE COMMERCE BUSINESS DAILY ADVERTISEMENT. BOTH OF THESE GROUPS WERE SOLICITED ON THE BASIS OF NIDA'S KNOWLEDGE OF THEIR QUALIFICATIONS TO PERFORM THE PROPOSED WORK.

OF THE THREE ORGANIZATIONS SUBMITTING TIMELY PROPOSALS SARC WAS RATED THE HIGHEST TECHNICALLY WITH A SCORE OF 586 ON A SCALE OF 900. AWARENESS HOUSE RECEIVED A SCORE OF 561 OUT OF THE POSSIBLE 900, AND ISC, THE PROTESTER, ACHIEVED A RATING OF 347 ON THE SAME SCALE. ON JUNE 24, 1974, CONTRACT NO. ADM-45-74-187 WAS AWARDED TO SARC ON A COST REIMBURSEMENT BASIS IN THE ESTIMATED AMOUNT OF $291,957.

ON JUNE 26, 1974, ISC SENT A LETTER TO THE GENERAL ACCOUNTING OFFICE AND TO THE NIDA CONTRACTING OFFICER PROTESTING THE AWARD OF THE CONTRACT TO SARC. ISC SUBSEQUENTLY SENT A SECOND LETTER TO OUR OFFICE PURPORTING TO DETAIL THE BASIS OF ITS PROTEST OF THE CONTRACT AWARD. ALTHOUGH THESE TWO LETTERS LIST MANY GROUNDS FOR PROTEST, THEY FALL WITHIN THE FOLLOWING GENERAL CATEGORIES:

"1. SARC DID NOT RESPOND TO THE COMMERCE BUSINESS DAILY ADVERTISEMENT AND SUBMIT ITS QUALIFICATIONS AS REQUIRED;

"2. THE EVALUATION OF PROPOSALS WAS NOT CONDUCTED IN A FAIR AND IMPARTIAL MANNER AS SARC RECEIVED SUBSTANTIAL INFORMATION AND OTHER FAVORABLE CONSIDERATION NOT AVAILABLE TO OTHER OFFERORS BECAUSE THERE WAS A CLOSE PERSONAL AND PROFESSIONAL RELATIONSHIP BETWEEN CERTAIN SARC STAFF AND RELATIVES OF THE STAFF AND A MEMBER OF THE BRANCH OF THE AGENCY AWARDING THE CONTRACT, WHEREAS MEMBERS OF THE EVALUATING COMMITTEE WERE SELECTED TO INSURE BIAS IN THE EVALUATION OF ISC'S PROPOSAL AND THE COMMITTEE WAS FURNISHED FALSE AND UNFAVORABLE INFORMATION CONCERNING ISC'S PAST PERFORMANCE; ERROR AND OMISSION IN THAT IT DID NOT COMPLY WITH THE RFP EVALUATION CRITERIA AND VARIOUS CITED MANDATORY PROVISIONS OF THE PROCUREMENT REGULATIONS, SARC WAS NOT THE MOST QUALIFIED OFFEROR, AND THE AMOUNT OF THE AWARD WAS APPROXIMATELY 20 PERCENT MORE THAN THAT PROPOSED BY ISC."

THE CONTRACTING OFFICER HAS STATED IN RESPONSE TO ISC'S FIRST GROUND OF PROTEST THAT:

"*** SINCE IT IS KNOWN THAT NOT ALL POTENTIAL CONTRACTORS SUBSCRIBE TO THE COMMERCE BUSINESS DAILY, IT IS A WELL ESTABLISHED CUSTOM FOR FEDERAL PROCUREMENT OFFICES TO SOLICIT AND ACCEPT FROM SPONSORING PROGRAM OFFICES THE NAMES OF ORGANIZATIONS KNOWN TO BE QUALIFIED TO PARTICIPATE IN NEGOTIATED PROCUREMENTS. THE SUCCESSFUL OFFEROR WAS ONE OF TWO SUCH ORGANIZATIONS NAMED BY THE SPONSORING PROGRAM DIVISION."

NIDA DID NOT ACT IMPROPERLY IN SENDING AN RFP TO SARC, EVEN THOUGH SARC DID NOT RESPOND TO THE COMMERCE BUSINESS DAILY ADVERTISEMENT. IN FACT, TO HAVE EXCLUDED SARC AND OTHER POTENTIAL OFFEROR'S FROM THE COMPETITION ON THE BASIS OF FAILURE TO RESPOND TO THE ADVERTISEMENT, OR BECAUSE OF FAILURE TO MEET THE QUALIFICATION CRITERIA STATED THEREIN, WOULD HAVE BEEN IN DEROGATION OF THE PRINCIPAL TENET OF THE COMPETITIVE SYSTEM THAT BIDS OR PROPOSALS BE SOLICITED IN SUCH A MANNER AS TO PERMIT THE MAXIMUM AMOUNT OF COMPETITION CONSISTENT WITH THE NATURE AND EXTENT OF THE SERVICES OR ITEMS TO BE PROCURED. 54 COMP. GEN. , MATTER OF METIS CORPORATION, B- 181387, JANUARY 24, 1975.

ISC HAS FAILED TO DOCUMENT ITS CHARGES THAT THE PROCUREMENT PROCESS WAS A BIASED ONE. THE PROTESTER HAS FURNISHED NO EVIDENCE OTHER THAN MERE ALLEGATIONS CONCERNING THE SELECTION OF A BIASED EVALUATION COMMITTEE OR THE FURNISHING OF FALSE AND UNFAVORABLE INFORMATION TO THE COMMITTEE. WITH REGARD TO THE ALLEGED FAVORITISM SHOWN SARC, THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE'S (HEW) OFFICE OF INVESTIGATIONS AND SECURITY (OIS) CONDUCTED AN INVESTIGATION INTO ISC'S CHARGES IN THIS MATTER, AND THE INVESTIGATOR REPORTED ON JANUARY 23, 1975, THAT ISC HAD NO "PROVABLE ACCUSATIONS AGAINST THE SUCCESSFUL BIDDER OR ANY PERSONNEL AT NIH. THEY COULD OFFER NO DOCUMENTARY PROOF AND HAD NO DOCUMENTS IN THEIR POSSESSION AT THE TIME OF THE INTERVIEW." BASED ON A MEMORANDUM IN THE RECORD FROM THE HEW INVESTIGATOR TO THE CHIEF OF THE OPERATIONS BRANCH OF HEW'S OIS, IT SEEMS THAT AT LEAST SOME OF ISC'S ALLEGATIONS ARE BASED ON INFORMATION WHICH ISC'S DIRECTOR AND DEPUTY DIRECTOR RECEIVED FROM AN ISC MEMBER WHOSE WHEREABOUTS WERE NO LONGER KNOWN ON JANUARY 7, 1975, WHEN AN INTERVIEW WAS CONDUCTED BETWEEN THE HEW INVESTIGATOR AND ISC'S DIRECTOR AND DEPUTY DIRECTOR. THE RECORD DOES REVEAL THAT THE MANPOWER AND TRAINING BRANCH CHIEF KNEW THE PRESIDENT OF SARC SOME FIFTEEN YEARS BEFORE THE AWARD OF THIS CONTRACT, BUT THERE IS NO EVIDENCE THAT THIS RELATIONSHIP AFFECTED THE PROCUREMENT PROCESS. THE BRANCH CHIEF HAS STATED:

"AT THE TIME THE SOURCES SOUGHT WAS PUBLISHED, I DID NOT KNOW THAT THERE EXISTED ON THE WEST COAST AN ORGANIZATION BY THE NAME OF THE SOCIAL ACTION RESEARCH CENTER. FURTHERMORE, NEITHER DID I PERSONALLY, NOR STAFF OF THIS OFFICE PROVIDE THAT POTENTIAL BIDDER WITH ANY INFORMATION CONCERNING THE POTENTIAL CONTRACT WHICH HAD NOT BEEN PROVIDED ANY OTHER BIDDER.

"DR. DOUGLAS GRANT, PRESIDENT OF THE SOCIAL ACTION RESEARCH CENTER FIRST CAME TO MY ATTENTION AS A PROFESSIONAL RESEARCH PSYCHOLOGIST IN 1963 AS A DIRECTOR OF RESEARCH FOR THE DEPARTMENT OF CORRECTIONS, STATE OF CALIFORNIA, WHERE HIS AREA OF RESEARCH IN THE FIELD OF NEW CAREERS PARALLELED THAT OF MY OWN. THROUGH THE INTERVENING YEARS, THERE WAS NO CONTINUING CONTACT WITH DR. GRANT."

THE LAST CATEGORY OF ALLEGATIONS RELATES TO CONFORMANCE OF THE EVALUATION PROCESS TO THE RFP EVALUATION CRITERIA AND CITED REGULATIONS, AS WELL AS THE RELATIVE QUALIFICATIONS OF THE PROTESTER AND SARC, AND THE AMOUNT OF THE CONTRACT AWARD. ALTHOUGH ISC WAS FURNISHED A COPY OF THE ADMINISTRATIVE REPORT RESPONSIVE TO ITS PROTEST, IT HAS FAILED TO PROVIDE ANY PARTICULARS AS TO ANY NONCONFORMANCE OF THE EVALUATION PROCESS WITH THE RFP EVALUATION CRITERIA, OR AS TO ITS CONTENTION THAT IT IS MORE QUALIFIED THAN SARC TO PERFORM THE CONTRACT. FURTHERMORE, ALL BUT THREE OF THE REGULATIONS CITED BY ISC PERTAIN TO FORMALLY ADVERTISED PROCUREMENTS. THE CITED REGULATIONS APPLICABLE TO THIS PROCUREMENT ARE SECTIONS 1-3.101, 1 3.102, AND 1-3.103 OF THE FEDERAL PROCUREMENT REGULATIONS (1964 ED.), WHICH SET FORTH THE GENERAL REQUIREMENTS, FACTORS TO BE CONSIDERED, AND DISSEMINATION OF PROCUREMENT INFORMATION RELATIVE TO NEGOTIATED PROCUREMENTS. ISC HAS PROVIDED NO INFORMATION AS TO HOW THESE REGULATIONS WERE VIOLATED. NEVERTHELESS, WE HAVE EXAMINED THE RECORD OF THE EVALUATION IN LIGHT OF THE EVALUATION CRITERIA AND APPLICABLE REGULATIONS. THE RECORD INDICATES THAT ALL PROPOSALS WERE EVALUATED IN ACCORDANCE WITH THE EVALUATION CRITERIA SET FORTH IN THE RFP AND THE APPLICABLE REGULATIONS, AND THE SARC PROPOSAL WAS DETERMINED TECHNICALLY SUPERIOR TO THE OTHER PROPOSALS RECEIVED AND THE ONLY PROPOSAL WITHIN THE COMPETITIVE RANGE.

WHILE ISC STRONGLY DISAGREES WITH SUCH DETERMINATION, IT HAS FAILED TO PROVIDE ANY EVIDENCE TO SUPPORT ITS POSITION. OUR OFFICE WILL NOT OVERTURN DISCRETIONARY JUDGMENTS OF CONTRACTING AGENCIES ABSENT A CLEAR SHOWING OF UNREASONABLENESS, AN ARBITRARY ABUSE OF DISCRETION, OR A VIOLATION OF THE PROCUREMENT STATUTES AND REGULATIONS. AS WE STATED IN MATTER OF APPLIED SYSTEMS CORPORATION, B-181696, OCTOBER 8, 1974:

"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. 164552(1), FEBRUARY 24, 1969. THE OVERALL DETERMINATION OF THE RELATIVE DESIRABILITY AND TECHNICAL ADEQUACY OF PROPOSALS IS PRIMARILY A FUNCTION OF THE PROCURING AGENCY, AND IN THIS REGARD WE HAVE RECOGNIZED THAT THE CONTRACTING OFFICER ENJOYS A REASONABLE RANGE OF DISCRETION IN THE EVALUATION OF PROPOSALS AND IN THE DETERMINATION OF WHICH OFFER OR PROPOSAL IS TO BE ACCEPTED FOR AWARD AS IN THE GOVERNMENT'S BEST INTEREST. B-178887(2), APRIL 10, 1974; B-176077(6), JANUARY 26, 1973. SINCE DETERMINATIONS AS TO THE NEEDS OF THE GOVERNMENT ARE THE RESPONSIBILITY OF THE PROCURING ACTIVITY CONCERNED, THE JUDGMENT OF SUCH ACTIVITY'S SPECIALISTS AND TECHNICIANS AS TO THE TECHNICAL ADEQUACY OF PROPOSALS SUBMITTED IN RESPONSE TO THE AGENCY'S STATEMENT OF ITS NEEDS ORDINARILY WILL BE ACCEPTED BY OUR OFFICE. B 175331, MAY 10, 1972."

IN THE INSTANT CASE, WE FIND NO BASIS FOR DISAGREEING WITH THE AGENCY'S DETERMINATION.

FINALLY, ISC STATES THAT THE AWARD GRANTED SARC WAS APPROXIMATELY 20 PERCENT HIGHER THAN ITS OFFER AND THE AWARD WAS DETRIMENTAL TO THE GOVERNMENT SINCE SARC REQUIRED AN APPROXIMATELY NINETY DAY PERIOD OF INACTION WHILE ISC WAS PREPARED TO ACT IMMEDIATELY.

UNLIKE FORMAL ADVERTISING, COST-REIMBURSEMENT TYPE CONTRACTS AWARDED UNDER NEGOTIATION PROCEDURES ARE NOT REQUIRED TO BE AWARDED SOLELY ON THE BASIS OF PROPOSED COST TO THE GOVERNMENT, AS FACTORS OTHER THAN PRICE MAY BE CONSIDERED AND GIVEN APPROPRIATE WEIGHT IN THE EVALUATION. FPR SEC. 1- 3.805-2 (1964 ED.). THE FACT THAT ISC'S ESTIMATED COSTS WERE SOMEWHAT LOWER THAN SARC'S IS NOT CONCLUSIVE, ESPECIALLY BECAUSE ISC'S PROPOSAL WAS FOUND TO BE TECHNICALLY UNACCEPTABLE. 54 COMP. GEN. 60 (1974); B-180771, AUGUST 7, 1974; B 181409, OCTOBER 16, 1974. ISC'S ALLEGATION THAT IT WAS PREPARED TO ACT IMMEDIATELY ON THE CONTRACT WHILE SARC REQUIRED A 3-MONTH WAITING PERIOD IS UNFOUNDED. THE PROPOSALS OF THE OFFERORS WERE RECEIVED BY MAY 31, 1974, THE CONTRACT WAS AWARDED ON JUNE 25, 1974, AND CONTRACT PERFORMANCE BEGAN IMMEDIATELY.

ACCORDINGLY, THE PROTEST IS DENIED.