B-181826, JAN 27, 1975

B-181826: Jan 27, 1975

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GENERAL ACCOUNTING OFFICE WILL REVIEW CONTESTED AFFIRMATIVE RESPONSIBILITY DETERMINATION. NOTWITHSTANDING GENERAL PROPOSITION THAT AFFIRMATIVE RESPONSIBILITY DETERMINATIONS WILL NOT BE REVIEWED SAVE FOR ALLEGATION OF FRAUD OR BAD FAITH. WAS NONRESPONSIVE TO LITERAL TERMS OF STAFFING PROVISIONS OF RFP CONCERNING NEED FOR IDENTIFYING PROPOSED STAFFING IN OFFEROR'S PROPOSAL. IT IS CLEAR THAT PROVISIONS WERE EFFECTIVELY DELETED WITH RESPECT TO STAFF MEMBERS IN QUESTION WITHOUT FORMAL AMENDMENT CONTRARY TO FPR SEC. 1-3.805-1(D). WHICH WERE OF LEAST IMPORTANCE UNDER PROPOSAL EVALUATION SCHEME. PROPRIETY OF AWARD TO ALLEGEDLY "NONRESPONSIVE" OFFEROR IS NOT SUSPECT. 4. WHEN EXCLUSION OF OFFEROR FROM COMPETITIVE RANGE WAS UPHELD BECAUSE EVALUATION PANEL WAS UNABLE TO EVALUATE QUALIFICATIONS OF PERSONNEL PROPOSED TO BE RECRUITED FOR PART OF WORK.

B-181826, JAN 27, 1975

1. GENERAL ACCOUNTING OFFICE WILL REVIEW CONTESTED AFFIRMATIVE RESPONSIBILITY DETERMINATION, NOTWITHSTANDING GENERAL PROPOSITION THAT AFFIRMATIVE RESPONSIBILITY DETERMINATIONS WILL NOT BE REVIEWED SAVE FOR ALLEGATION OF FRAUD OR BAD FAITH, WHEN DISTRICT COURT, IN CONTEXT OF PENDING LITIGATION RELATING TO PROTEST, INDICATES DESIRE FOR REVIEW. 2. ALTHOUGH FPR SEC. 1-3.805-1(A)(5) ALLOWS PROCURING AGENCY TO TAKE ADVANTAGE OF NONRESPONSIVE OFFER IN NEGOTIATED PROCUREMENT, SUCCESSFUL OFFEROR IN NEGOTIATED PROCUREMENT COULD HARDLY BE FAULTED FOR THINKING IT HAD SUBMITTED OFFER RESPONSIVE TO RFP'S PROPOSED STAFFING PROVISIONS, CONTRARY TO POSITION OF PROTESTING OFFEROR, WHEN PROCURING AGENCY RESPONSIBLE FOR DRAFTING PROVISIONS IN QUESTION ADMITTEDLY CAUSED ANY POSSIBLE NONRESPONSIVENESS IN STAFFING AREA BY INSISTING OFFEROR DELETE CERTAIN INDIVIDUALS FROM PROPOSED STAFF. 3. ASSUMING THAT FINAL OFFER OMITTING NAMES OF CERTAIN STAFF MEMBERS, SUBMITTED BY ULTIMATELY SUCCESSFUL OFFEROR, WAS NONRESPONSIVE TO LITERAL TERMS OF STAFFING PROVISIONS OF RFP CONCERNING NEED FOR IDENTIFYING PROPOSED STAFFING IN OFFEROR'S PROPOSAL, IT IS CLEAR THAT PROVISIONS WERE EFFECTIVELY DELETED WITH RESPECT TO STAFF MEMBERS IN QUESTION WITHOUT FORMAL AMENDMENT CONTRARY TO FPR SEC. 1-3.805-1(D). SINCE PARTIAL DELETION OF PROVISIONS, WHICH WERE OF LEAST IMPORTANCE UNDER PROPOSAL EVALUATION SCHEME, CANNOT BE SEEN AS REASONABLY AFFECTING RELATIVE STANDING OF OFFERORS, BECAUSE OF MARKED SUPERIORITY OF SUCCESSFUL PROPOSAL, PROPRIETY OF AWARD TO ALLEGEDLY "NONRESPONSIVE" OFFEROR IS NOT SUSPECT. 4. CIRCUMSTANCES OF B-173921, FEBRUARY 8, 1972, WHEN EXCLUSION OF OFFEROR FROM COMPETITIVE RANGE WAS UPHELD BECAUSE EVALUATION PANEL WAS UNABLE TO EVALUATE QUALIFICATIONS OF PERSONNEL PROPOSED TO BE RECRUITED FOR PART OF WORK, IS DISTINGUISHED FROM CIRCUMSTANCES OF SUBJECT PROCUREMENT SINCE: (1) STAFFING CRITERION IN CITED CASE HAD GREATEST EMPHASIS UNLIKE SUBJECT PROCUREMENT WHEN IT HAD LEAST EMPHASIS; (2) NO OTHER EMPLOYEE GROUP IN CITED CASE COULD SHARE DUTIES OF UNIDENTIFIED PERSONNEL UNLIKE SUBJECT PROCUREMENT WHEN SUCCESSFUL OFFEROR'S MANAGEMENT APPROACH LESSENED NEED FOR IDENTITY OF ASSISTANT PROJECT DIRECTOR; AND (3) SUBSTANTIAL LEAD TIME FOR RECRUITMENT OF OTHER EMPLOYEES WAS PRESENT IN SUBJECT PROCUREMENT, UNLIKE CITED CASE. 5. SUGGESTION THAT LACK OF IDENTITY OF CERTAIN PROPOSED EMPLOYEES IN SUCCESSFUL OFFEROR'S PROPOSAL MADE IT IMPOSSIBLE FOR PROCURING AGENCY TO PROPERLY ANALYZE OFFEROR'S PROPOSED COSTS IS NOT SUPPORTED BY RECORD WHICH SHOWS SUCCESSFUL OFFEROR INCLUDED ANTICIPATED COSTS FOR UNIDENTIFIED INDIVIDUALS, WHICH SEEM REASONABLE, THEREBY AFFORDING POSSIBILITY OF EFFECTIVE COST ANALYSIS. 6. SINCE OFFEROR DOES NOT CONTEST AGENCY'S ANALYSIS THAT PROTEST CONCERNING AGENCY'S JUDGMENT THAT OFFEROR HAD SUBMITTED INADEQUATE MANNING PROPOSAL IS UNTIMELY FILED UNDER INTERIM BID PROTEST PROCEDURES AND STANDARDS, AND BECAUSE AUGUST 16 ORDER OF UNITED STATES DISTRICT COURT, OTHERWISE INDICATING COURT'S DESIRE FOR GAO REVIEW OF PROTEST, DOES NOT CONTAIN COMMENT ON THIS ASPECT OF PROTEST, GAO MUST DECLINE TO CONSIDER ISSUE. 7. RECOGNIZING CONSIDERABLE RANGE OF DISCRETION ACCORDED CONTRACTING AGENCY IN ARRIVING AT REASONED JUDGMENT AS TO WHETHER PROSPECTIVE CONTRACTOR IS RESPONSIBLE, GENERAL ACCOUNTING OFFICE CANNOT CONCLUDE THAT PROCURING AGENCY'S FINDING - THAT PROSPECTIVE CONTRACTOR HAD "ABILITY TO OBTAIN" PERSONNEL IN QUESTION - LACKS RATIONAL BASIS, NOTWITHSTANDING ABSENCE OF EXPRESS COMMITMENTS FOR PERSONNEL, IN VIEW OF CONCERN'S CORPORATE EXPERIENCE AND ITS EXEMPLARY RECORD ON OTHER CONTRACTS WHEN IT RECRUITED "HIGH QUALITY PERSONNEL" DURING CONTRACT PERFORMANCE.

DEVELOPMENT ASSOCIATES, INC.; AMERICAN INSTITUTES FOR RESEARCH:

THIS PROTEST QUESTIONS THE RATIONALE SUPPORTING AN AWARD OF A CONTRACT BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW) FOR A "LARGE-SCALE IMPACT EVALUATION" STUDY. FOR THE REASONS DISCUSSED AT LENGTH IN THE DECISION, IT IS OUR VIEW THAT THE AWARD IS NOT SUBJECT TO QUESTION.

ON MARCH 29, 1974, REQUEST FOR PROPOSALS (RFP) 74-61 WAS ISSUED BY THE OFFICE OF EDUCATION (OE), HEW, FOR A STUDY OF THE EFFECTIVENESS OF SELECTED "BILINGUAL" EDUCATION PROJECTS IN THE UNITED STATES, WITH PRIMARY EMPHASIS ON PROJECTS INVOLVING SPANISH-SPEAKING CHILDREN. THIS EFFORT WAS REFERRED TO AS THE "IMPACT STUDY."

THE RFP ALSO INFORMED PROSPECTIVE OFFERORS OF TWO PROPOSED SUB STUDIES INCIDENT TO THE IMPACT STUDY. THE FIRST SUB-STUDY DESCRIBED IN THE RFP INVOLVED "ISSUES AND CONCERNS RELATED TO NON-SPANISH AND MULTI ETHNIC (BILINGUAL) PROJECTS." IN CONTRAST TO THE FIRST SUB-STUDY, WHICH WOULD BE REQUIRED OF ANY SUCCESSFUL OFFEROR, THE SECOND SUB STUDY, INVOLVING IDENTIFICATION OF "EXEMPLARY (BILINGUAL) PROJECTS" WAS TERMED "OPTIONAL." BECAUSE OF THIS DIFFERENCE, OFFERORS WERE INSTRUCTED TO COST THE SECOND SUB-STUDY SEPARATELY.

ALL OFFERORS WERE ADVISED THAT PROPOSALS WOULD BE EVALUATED IN ACCORDANCE WITH THE TECHNICAL EVALUATION FACTORS SET FORTH IN THE RFP AND THAT THE FACTORS WERE LISTED IN THE ORDER OF GREATEST TO LEAST IMPORTANCE.

THESE FACTORS WERE SET FORTH ON PAGE 53 OF THE WORK STATEMENT SECTION OF THE RFP AS FOLLOWS:

CRITERIA

1. TECHNICAL APPROACH AND PROMISE IN MEETING OBJECTIVES (LINKAGE BETWEEN THESE AND THE ANALYSIS PLAN)

2. DATA COLLECTION, ANALYSIS AND REPORTING TECHNIQUES

3. SCOPE AND COMPREHENSIVENESS OF THE OVERALL EVALUATION PLAN

4. QUALIFICATIONS OF PROPOSED PROJECT DIRECTOR

5. MANAGEMENT PLAN, STAFF ASSIGNMENTS, AND RELATIONSHIP OF ASSIGNMENTS TO STAFF EXPERTISE

6. STAFF CAPABILITIES AND CORPORATE EXPERIENCE

THE WORK STATEMENT SECTION OF THE RFP STATED THAT "ALL PERSONNEL INCLUDING CONSULTANTS, ADVISORY PANEL MEMBERS AND SUBCONTRACTOR STAFF SHOULD BE IDENTIFIED (IN AN OFFEROR'S PROPOSAL)." THIS WAS FOLLOWED BY A REQUIREMENT THAT PROPOSALS CONTAIN PROFESSIONAL RESUMES FOR ALL STAFF MEMBERS WHICH WOULD SHOW "ALL DIRECTLY RELEVANT EXPERIENCE, MAJOR TASK ASSIGNMENTS FOR THIS STUDY, PERCENTAGE TIME ASSIGNED TO MAJOR TASK ASSIGNMENTS, AND RELATED TECHNICAL PUBLICATION."

SIX PROPOSALS, INCLUDING OFFERS FROM DEVELOPMENT ASSOCIATES, INC. (DA), AND THE AMERICAN INSTITUTES FOR RESEARCH (AIR), WERE RECEIVED BY HEW ON MAY 20, 1974. HEW REPORTS THAT DA, AIR, AND ONE OTHER FIRM SUBMITTED COMPETITIVE-RANGE PROPOSALS. REFLECTING ON THE NEGOTIATIONS HAD WITH AIR, HEW STATES THAT, ALTHOUGH AIR INITIALLY PROPOSED THE NAMES OF ALL PERSONNEL NECESSARY TO DO THE WORK, AIR SUBSEQUENTLY "LOST" ITS PROPOSED ASSISTANT PROJECT DIRECTOR, MAINLY THROUGH HEW'S OWN INTERVENTION IN OFFERING THAT PERSON A JOB. ADDITIONALLY, BECAUSE HEW QUESTIONED THE SOUNDNESS OF AIR'S PROPOSED SUBCONTRACTING APPROACH FOR ACCOMPLISHING DATA GATHERING, AIR FINALLY PROPOSED TO USE UNNAMED MEMBERS OF ITS OWN STAFF TO DO DATA GATHERING.

NEGOTIATIONS WERE THEN HAD WITH EACH OF THE THREE COMPETITIVE-RANGE OFFERORS BETWEEN JUNE 12 AND JUNE 17. THE THIRD OFFEROR WAS THEREAFTER ELIMINATED FROM FURTHER DISCUSSIONS, LEAVING DA AND AIR AS THE REMAINING COMPETITIVE-RANGE OFFERORS. FURTHER NEGOTIATIONS WERE THEN HAD WITH THESE FIRMS. ON JUNE 25, "BEST AND FINAL" OFFERS WERE SOLICITED FROM EACH OFFEROR.

HEW FINALLY DECIDED THAT AIR'S PROPOSAL WAS SUPERIOR TO DA'S PROPOSAL IN TECHNICAL MERIT. THIS MERIT, IN HEW'S JUDGMENT, OFFSET THE ADVANTAGE CONTAINED IN DA'S PROPOSAL BY VIRTUE OF DA'S LOWER PROPOSED COST.

IN NARRATIVE FORM (NUMERICAL SCORING WAS NOT USED FOR FINAL RANKINGS) THE REASONS, IN BRIEF, FOR THE DECISION, AS KEYED TO THE RFP EVALUATION CRITERIA, WERE:

AIR DA

1. TECHNICAL APPROACH

TECHNICALLY SOUND - DEMONSTRATES INADEQUACIES IN PROPOSED MAN DAYS UNDERSTANDING OF ISSUES AND PROPOSES AND IN DISCUSSION OF ISSUES IN ADEQUATE MAN-DAYS TO ACCOMPLISH TASKS SEVERAL TASK AREAS SHOW THAT DA

WOULD NOT BE ABLE TO IMPLEMENT

TECHNICAL APPROACH

2. DATA COLLECTION

MORE EXPERIENCED STAFF AND MORE MAJOR DEFICIENCIES IN ALLOCATION OF REALISTIC ANALYSIS AND REPORTING MAN-DAYS - PERSONS PROPOSED HAD MUCH ALLOCATION OF TIME AND RESOURCES LESS EXPERIENCE THAN AIR IN

MANAGEMENT AND ANALYSIS OF DATA IN

LARGE-SCALE IMPACT STUDY

3. SCOPE AND COMPREHENSIVENESS OF THE OVERALL EVALUATION PLAN

SUPERIOR DISCUSSION OF WEAK PROPOSAL EVEN AFTER STRESS ISSUES - ADEQUATE MANPOWER

GIVEN TO AREAS IN NEGOTIATION

4. QUALIFICATIONS OF PROPOSED PROJECT DIRECTOR

THOROUGHLY EXPERIENCED WITH PROBLEMS PERSON FINALLY PROPOSED ACCEPTABLE ATTENDING COLLECTION OF VAST AMOUNTS OF DATA

5. MANAGEMENT PLAN, STAFF ASSIGNMENTS, AND RELATIONSHIP OF ASSIGNMENTS TO STAFF EXPERTISE

CLEARLY DEFINED - (HEW CONSIDERED APPROACH DIFFUSES RESPONSIBILITY THE MANAGEMENT "TEAM" AND PLAN OF AIR WIDELY - PROJECT DIRECTOR WOULD BE TO BE DECIDEDLY SUPERIOR TO THAT OF DA "SORELY TRIED" TO HOLD PROJECT EVEN IN THE ABSENCE OF A NAMED TOGETHER ASSISTANT PROJECT DIRECTOR FROM AIR - SEE DISCUSSION BELOW)

6. STAFF CAPABILITIES AND CORPORATE EXPERIENCE

CLEARLY SUPERIOR IN STUDY DESIGN, CORPORATE EXPERIENCE IN "BILINGUAL/ DATA REDUCTION AND DATA ANALYSIS FOR BICULTURAL" FIELD; BUT PROPOSED POLICY PURPOSES, STATISTICAL SAMPLING; PROJECT AND ASSISTANT PROJECT ACCEPTABLE "BEST AND FINAL" PLAN FOR DIRECTORS WERE NOT PART OF THAT HIRING AND TRAINING "BILINGUAL/ EXPERIENCE BICULTURAL" STAFF

NOTE: (ON BALANCE HEW CONSIDERED AIR'S CORPORATE EXPERIENCE AND STAFF CAPABILITIES IN NATIONAL IMPACT EVALUATIONS AS "MORE RELEVANT" THAN DA'S CORPORATE EXPERIENCE AND STAFF CAPABILITIES IN "BILINGUAL/BICULTURAL" EDUCATION).

BECAUSE THE HEW AWARD PANEL WAS FIRMLY CONVINCED THAT THE TECHNICAL AND STAFFING SUPERIORITY OF THE AIR PROPOSAL WAS SUFFICIENT TO JUSTIFY THE HIGHER COST (APPROXIMATELY $143,000 MORE THAN DA'S PROPOSED COSTS) ASSOCIATED WITH AN AWARD TO THAT COMPANY, AN AWARD FOR THE STUDY WAS MADE TO AIR ON JUNE 29 AT A COST-PLUS-FIXED-FEE CONTRACT PRICE OF $685,000.

THE AWARDED CONTRACT PROVIDED THAT AIR WOULD FURNISH: (1) THE NAME OF THE ASSISTANT PROJECT DIRECTOR ON OR BEFORE AUGUST 31, 1974; (2) THE NAMES OF THE SITE COORDINATORS ON OR BEFORE DECEMBER 31, 1974; AND (3) THE NAMES OF FIELD DATA GATHERERS ON OR BEFORE JUNE 30, 1975. THE CONTRACT FURTHER STATED THAT "EACH OF THE ABOVE PERSONS MUST HAVE BILINGUAL-BICULTURAL EXPERIENCE."

BY COMPLAINT FILED AUGUST 2, 1974, WITH THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA (CIVIL ACTION NO. 74-1179) DA REQUESTED THAT THE COURT DECLARE AIR'S AWARD UNLAWFUL AND THAT THE COURT PERMANENTLY ENJOIN HEW FROM IMPLEMENTING THE CONTRACT. ALTHOUGH THE COURT GRANTED DA'S REQUEST FOR A TEMPORARY RESTRAINING ORDER, IT DENIED, BY MEMORANDUM OF DECISION AND ORDER DATED AUGUST 16, 1974, DA'S MOTION FOR A PRELIMINARY INJUNCTION. THE COURT'S AUGUST 16 MEMORANDUM INDICATES THAT IT DESIRES THE VIEWS OF OUR OFFICE ON THE SUBJECT PROTEST.

THE THRUST OF DA'S PROTEST IS TWOFOLD. ON THE ONE HAND, DA QUESTIONS THE SOUNDNESS OF HEW'S PROPOSAL EVALUATION FINDING THAT AIR WAS "CLEARLY SUPERIOR" IN "STAFF CAPABILITIES" (RFP EVALUATION CRITERION NO. 6) SINCE HEW DID NOT HAVE, PRIOR TO AWARD, THE NAMES OF THE PERSONS PROPOSED TO BE AIR'S ASSISTANT PROJECT DIRECTOR, SITE COORDINATORS, AND FIELD DATA GATHERERS. ON THE OTHER HAND, DA QUESTIONS THE SOUNDNESS OF HEW'S FINDING THAT AIR HAD THE ABILITY TO OBTAIN SUFFICIENTLY QUALIFIED PERSONS FOR THE POSITIONS DURING CONTRACT PERFORMANCE.

BEFORE CONSIDERING THE ISSUES RAISED BY DA, WE DIGRESS TO CONSIDER AN ASSERTION MADE BY HEW CONCERNING OUR RECENTLY ANNOUNCED POSITION NOT TO CONSIDER PROTESTS INVOLVING AFFIRMATIVE RESPONSIBILITY DECISIONS WHEN FRAUD HAS NOT BEEN ALLEGED. SEE, FOR EXAMPLE, MATTER OF UNITED HATTERS, B -177512, JUNE 7, 1974, 53 COMP. GEN. . HEW ASSERTS THAT THIS POSITION SHOULD BE APPLIED HERE TO DENY REVIEW OF THE SECOND ISSUE RAISED BY DA CONCERNING AIR'S ABILITY TO OBTAIN QUALIFIED PERSONS FOR THE LISTED POSITIONS.

BY IMPLICATION, HEW CONCEDES THAT EXISTING GAO PRECEDENT STILL SUPPORTS OUR RIGHT TO REVIEW THE SOUNDNESS OF ITS ASSESSMENT OF AIR'S PROPOSED STAFFING AS EVIDENCED BY THE RECORD OF PROPOSAL EVALUATION. PRESUMABLY, THIS CONCESSION IS MOTIVATED BY THE ADMITTED DIFFERENCE BETWEEN THE "RELATIVE ASSESSMENT" APPROACH PRIMARILY REQUIRED IN PROPOSAL EVALUATION (THAT IS, HOW WELL DO THE QUALIFICATIONS OF AN OFFEROR'S PROPOSED STAFF COMPARE WITH THE QUALIFICATIONS OF OTHER OFFEROR'S PROPOSED STAFFING AND HOW WELL DO THEY MEET APPLICABLE RFP CRITERIA) AS CONTRASTED WITH THE "ABSOLUTE" APPROACH REQUIRED IN RESPONSIBILITY DETERMINATIONS (THAT IS, EITHER AN OFFEROR HAS, OR HAS THE ABILITY TO OBTAIN, QUALIFIED STAFFING TO DO THE WORK AND BE FOUND RESPONSIBLE, OR IT DOES NOT).

RECOGNIZING THE DISTINCTION IN APPROACH, WE THINK IT WOULD BE INAPPROPRIATE NOT TO REVIEW THE CONTESTED RESPONSIBILITY DETERMINATION WHEN THE AUGUST 16 ORDER OF THE DISTRICT COURT, IN WHICH THE COURT INDICATES THAT IT DESIRES THE VIEWS OF OUR OFFICE ON THE PROTEST, CONTAINS COMMENT ON THIS ASPECT OF THE PROTEST.

QUESTIONING THE SOUNDNESS OF HEW'S EVALUATION FINDING THAT AIR WAS "CLEARLY SUPERIOR" IN "STAFF CAPABILITIES" (THE SIXTH, AND LEAST IMPORTANT EVALUATION CRITERION) LEADS DA TO THE CONCLUSION THAT THE ULTIMATE AWARD DECISION WAS NOT RATIONALLY FOUNDED. THIS IS BASED ON THE ARGUMENT THAT AIR'S FAILURE, PRIOR TO AWARD, TO PROPOSE THE NAMES OF "KEY" EMPLOYEES (ASSISTANT PROJECT DIRECTOR, SITE COORDINATORS, FILED DATA GATHERERS) WAS SUCH THAT AIR'S PROPOSAL MUST BE CONSIDERED EITHER "NONRESPONSIVE" (TO THE RFP REQUIREMENT THAT "ALL PROPOSED PERSONNEL SHOULD BE IDENTIFIED") OR "NONCOMPETITIVE," THAT IS, NOT WITHIN THE COMPETITIVE RANGE FOR THE PROCUREMENT, PRICE AND OTHER FACTORS CONSIDERED.

HEW REJECTS THE SUGGESTION THAT AIR SUBMITTED A NONRESPONSIVE OFFER. SINCE AIR DID NAME ALL ESSENTIAL PERSONNEL IN ITS INITIAL PROPOSAL, HEW INSISTS THAT AIR'S PROPOSAL COULD "PROPERLY BE FOUND 'RESPONSIVE' OR WITHIN THE COMPETITIVE RANGE."

THE NEGOTIATED METHOD OF PROCUREMENT EMPLOYED HERE, UNLIKE THE FORMAL ADVERTISING METHOD, IS DESIGNED TO BE FLEXIBLE AND INFORMAL; CONSEQUENTLY, THE PROCURING AGENCY CONCERNED IS ENTITLED TO DO THINGS IN THE AWARDING OF A NEGOTIATED CONTRACT THAT WOULD NOT BE PERMITTED IN AWARDING A FORMALLY ADVERTISED CONTRACT. THIS IS SHOWN BY FEDERAL PROCUREMENT REGULATIONS (FPR) SEC. 1-3.805-1(A)(5) WHICH ALLOWS THE PROCURING AGENCY TO TAKE ADVANTAGE OF A NONRESPONSIVE OFFER SUBMITTED DURING A NEGOTIATED PROCUREMENT. THE PROVISION READS:

"*** ALSO, WHEN THE PROPOSAL MOST ADVANTAGEOUS TO THE GOVERNMENT INVOLVES A MATERIAL DEPARTURE FROM THE STATED REQUIREMENTS, CONSIDERATION SHALL BE GIVEN TO OFFERING THE OTHER FIRMS WHICH SUBMITTED PROPOSALS AN OPPORTUNITY TO SUBMIT NEW PROPOSALS. ***"

FURTHER, DA DOES NOT CONTEST HEW'S VIEW THAT AIR SUBMITTED AN INITIAL PROPOSAL WHICH WAS RESPONSIVE TO THE RFP'S REQUIREMENTS (AS AIR INTERPRETS THOSE REQUIREMENTS) FOR PROPOSED STAFFING. NOR DOES DA QUESTION HEW'S VIEW THAT ANY POSSIBLE NONRESPONSIVENESS IN AIR'S FINAL OFFER IN PROPOSED STAFFING WAS DUE TO: (1) HEW'S HIRING OF ONE OF DA'S PROPOSED EMPLOYEES; (2) HEW'S INSISTENCE THAT AIR'S PROPOSED SUBCONTRACTOR FOR DATA GATHERING BE DROPPED; AND (3) HEW'S ADVICE THAT IT WAS PERMISSIBLE FOR AIR TO ENTER INTO THE CONTRACT SO LONG AS PROVISION WAS MADE FOR EVENTUAL HIRING OF THE STAFF IN QUESTION.

AIR COULD HARDLY HAVE BEEN FAULTED FOR THINKING IT HAD SUBMITTED A RESPONSIVE OFFER (AT LEAST RESPONSIVE TO THE WISHES OF THE DRAFTERS OF THE RFP) IN THESE CIRCUMSTANCES. ASSUMING THAT ITS FINAL OFFER WAS, NEVERTHELESS, NONRESPONSIVE TO THE LITERAL TERMS OF THE STAFFING PROVISIONS CONCERNING THE NEED FOR IDENTIFYING PROPOSED STAFFING IN AN OFFEROR'S PROPOSAL, IT IS CLEAR THAT THOSE PROVISIONS WERE EFFECTIVELY DELETED WITH RESPECT TO THE POSITIONS IN QUESTION BY HEW WITHOUT FORMAL AMENDMENT CONTRARY TO FPR SEC. 1-3.805-1(D). WERE THE ASSUMED DEFECT SUFFICIENT TO RAISE DOUBT THAT THE RELATIVE RANKING OF DA AND AIR WOULD HAVE BEEN UPSET HAD THE STAFFING-IDENTITY PROVISIONS BEEN FORMALLY DELETED, THE PROPRIETY OF THE AWARD WOULD BE SUSPECT. BUT THE STAFFING IDENTITY CRITERION WAS OF LEAST IMPORTANCE UNDER THE EVALUATION SCHEME, SO THAT ITS FORMAL DELETION, WITH RESPECT TO THE INVOLVED POSITIONS, WOULD NOT REASONABLY CHANGE THE STANDING OF THE OFFERORS, GIVEN AIR'S SUPERIOR RANKING IN THE OTHER EVALUATION CRITERIA.

TO BUTTRESS DA'S RELATED POINT THAT AIR'S PROPOSAL WAS NOT WITHIN THE COMPETITIVE RANGE FOR THE PROCUREMENT, PRICE AND OTHER FACTORS CONSIDERED, DA CITES B-173921, FEBRUARY 8, 1972, WHEN WE UPHELD THE EXCLUSION OF A CONCERN FROM THE COMPETITIVE RANGE IN ANOTHER NEGOTIATED PROCUREMENT BECAUSE IT PROPOSED TO RECRUIT PERSONNEL FOR THE EDITING PORTION OF THE CONTRACT IN QUESTION. UNDER THESE CIRCUMSTANCES WE AGREED THAT IT WAS IMPOSSIBLE FOR THE TECHNICAL EVALUATION BOARD TO EVALUATE THE QUALIFICATIONS AND EXPERIENCE OF THESE PERSONNEL AND THAT IT WOULD ADVERSELY AFFECT THE WORK TO USE "ALL NEW PRODUCTION PERSONNEL." IN THAT PROCUREMENT, UNLIKE THE CASE HERE, HOWEVER, THE "QUALIFICATIONS AND EXPERIENCE" EVALUATION CRITERION WAS LISTED FIRST OF ALL THE EVALUATION CRITERIA, AND, PRESUMABLY, CARRIED GREATEST EVALUATION WEIGHT. FURTHER, UNLIKE THE ASSUMED CIRCUMSTANCE HERE, THE PROCURING AGENCY IN THE CITED CASE DID NOT ACT TO EFFECTIVELY DELETE THE NEED FOR OFFERORS TO IDENTIFY THE PERSONNEL IN QUESTION.

WE ALSO RECOGNIZE MERIT IN HEW'S SUGGESTIONS THAT THE PRESENT PROCUREMENT IS FURTHER DISTINGUISHED FROM THE CITED CASE SINCE: (1) AIR'S STRESS ON MIDDLE MANAGEMENT LESSENED THE ASSISTANT PROJECT DIRECTOR'S BURDEN OF RESPONSIBILITY, THEREBY EASING CONCERN ABOUT THE IDENTITY OF THAT INDIVIDUAL, UNLIKE THE CITED CASE WHEN NO OTHER EMPLOYEE GROUP WOULD HAVE BEEN ABLE TO SHARE THE DUTIES OF THE PRODUCTION PERSONNEL IN QUESTION; (2) THE DATA GATHERING FUNCTION HERE, WHICH IS SCHEDULED TO BE PERFORMED BY UNNAMED AIR EMPLOYEES, IS TO BE PERFORMED MORE THAN A YEAR AFTER AWARD, THEREBY ALLOWING TIME FOR RECRUITMENT OF QUALIFIED PERSONNEL, UNLIKE THE CITED CASE WHEN THE UNIDENTIFIED PRODUCTION EMPLOYEES APPARENTLY WERE TO BEGIN WORK IMMEDIATELY AFTER AWARD.

COLLATERAL TO DA'S FIRST ARGUMENT IS THE COMPANY'S SUGGESTION THAT THE LACK OF IDENTITY OF AIR'S ASSISTANT PROJECT DIRECTOR, SITE COORDINATORS, AND DATA GATHERERS PREVENTED PROPER COST ANALYSIS OF AIR'S COST PROPOSAL.

AIR'S FINAL PROPOSAL SHOWS THAT THE COMPANY INCLUDED PROPOSED, ANTICIPATED COSTS FOR THE UNIDENTIFIED INDIVIDUALS IN QUESTION. FOR EXAMPLE, DA PROPOSED AN HOURLY WAGE RATE FOR ITS UNIDENTIFIED ASSISTANT PROJECT DIRECTOR AMOUNTING TO 20% LESS THAN THE WAGE RATE PROPOSED FOR ITS IDENTIFIED PROJECT DIRECTOR. SINCE COSTS WERE ANTICIPATED FOR THE UNIDENTIFIED EMPLOYEES AND THE ANTICIPATED DOLLAR COST OTHERWISE SEEMS REASONABLE, WE CANNOT CONCLUDE THAT THE POSSIBILITY OF EFFECTIVE COST ANALYSIS WAS PRECLUDED AS DA SUGGESTS.

DA RAISES ONE OTHER ISSUE COLLATERAL TO PROPOSAL EVALUATION. IT CONTESTS HEW'S FINDING THAT ITS PROPOSED MANNING ESTIMATES WERE DEFICIENT. IT SAYS IT LEARNED OF THIS FACT "AFTER ALL NEGOTIATIONS WITH OE HAD BEEN CONCLUDED AND THE CONTRACT AWARDED TO AIR." DA ASSERTS THAT IT HAD NO REASON TO DOUBT THE ADEQUACY OF MAN-YEARS PROPOSED, FOR THEY FELL WITHIN THE "LEVEL OF EFFORT" RANGE (15-17 MAN YEARS) STATED ON P. 53 OF THE WORK STATEMENT SECTION OF THE RFP. FURTHER, DA MAINTAINS THAT AIR'S PROPOSED MANNING EXCEEDED BY 33% THE ESTIMATED MANNING LEVEL SET FORTH IN THE RFP. CONSEQUENTLY, DA ASSERTS THAT IT, TOO, SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO PROPOSE AT THE MANNING LEVEL OFFERED BY AIR.

HEW SUBMITS THAT DA'S PROTEST COVERING MANNING ALLOCATIONS PROPOSED BY DA AND AIR IS UNTIMELY FILED UNDER GAO'S INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 C.F.R. SEC. 20 (1974), SINCE THIS PART OF THE PROTEST, RECEIVED BY GAO ON SEPTEMBER 13, 1974, WAS NOT FILED WITHIN 5 DAYS AFTER DA HAD BEEN PROVIDED WITH: (1) A DEBRIEFING (FURNISHED TO DA ON AUGUST 6, 1974) IN WHICH DA WAS TOLD THAT ITS ALLOTMENT OF MAN-YEARS WAS INADEQUATE; AND (2) A COPY OF AIR'S TECHNICAL PROPOSAL (FURNISHED TO DA NO LATER THAN AUGUST 12).

DA DOES NOT DENY HEW'S SUGGESTION THAT THIS ASPECT OF ITS PROTEST IS UNTIMELY. CONSEQUENTLY, AND RECOGNIZING THAT THE AUGUST 16 ORDER OF THE DISTRICT COURT IN WHICH THE COURT INDICATES THAT IT DESIRES THE VIEWS OF OUR OFFICE ON THE PROTEST DOES NOT CONTAIN COMMENT ON THIS ASPECT OF THE PROTEST, WE MUST DECLINE TO CONSIDER THE ISSUE.

AS CONTRASTED WITH THE RIGHT OF HEW TO DELETE THE NEED FOR OFFERORS TO IDENTIFY CERTAIN PROPOSED EMPLOYEES IN THEIR PROPOSALS, HEW HAS ACKNOWLEDGED THAT IT COULD NOT WAIVE THE REQUIREMENT IN FPR SEC. 1 1.1203- 2(A)(1) FOR AIR TO DEMONSTRATE THAT IT AT LEAST HAD THE "ABILITY TO OBTAIN" A QUALIFIED ASSISTANT PROJECT DIRECTOR, SITE COORDINATORS, AND DATA GATHERERS IN ORDER THAT THE FIRM MIGHT BE CONSIDERED A RESPONSIBLE PROSPECTIVE CONTRACTOR. THE CITED FPR SEC. 1-1.1203 2(A)(1) READS, AS PERTINENT:

"*** (*** IN OTHER PROCUREMENTS AS APPROPRIATE), A PROSPECTIVE CONTRACTOR MUST:

(1) HAVE THE NECESSARY ORGANIZATION, EXPERIENCE, *** OR THE ABILITY TO OBTAIN THEM."

AND HEW ARGUES FURTHER THAT IT PROPERLY FOUND THAT AIR HAD THE "ABILITY TO OBTAIN" QUALIFIED PERSONS TO FILL THE CITED POSITIONS BECAUSE OF: "AIR'S CORPORATE EXPERIENCE, ITS EXEMPLARY PERFORMANCE ON OTHER CONTRACTS WHERE IT HAD TO RECRUIT PERSONNEL DURING THE PERFORMANCE THEREOF, AND THE ATTRACTION OF HIGH QUALITY PERSONNEL TO AIR." THE CORPORATE EXPERIENCE REFERENCED INVOLVED AIR'S EXPERIENCE IN "LARGE-SCALE IMPACT EVALUATIONS" AND AIR STAFF EXPERIENCE IN HEW'S "CURRENT STUDY OF THE 'RIGHT-TO-READ' PROGRAM." FURTHER, HEW SAYS THAT ITS PREAWARD JUDGMENT IS CONFIRMED BY AIR'S POST AWARD RECRUITMENT OF A HIGHLY QUALIFIED PERSON TO BE ITS ASSISTANT PROJECT DIRECTOR.

DA ARGUES THAT THE REFERENCED CORPORATE EXPERIENCE WAS NOT SUFFICIENT TO JUSTIFY A FINDING THAT AIR HAD ABILITY TO OBTAIN THE "HIGHLY PARTICULARIZED BICULTURAL, AS WELL AS BILINGUAL EXPERTISE" REQUIRED OF THE DATA GATHERERS. BUT IT DOES NOT DISPUTE HEW'S ASSERTION THAT AIR'S ASSISTANT PROJECT DIRECTOR IS WELL-QUALIFIED.

FPR SEC. 1-1.1203-4 DEFINES ACCEPTABLE EVIDENCE OF "ABILITY TO OBTAIN" NEEDED PERSONNEL AS "NORMALLY *** A COMMITMENT OR EXPLICIT ARRANGEMENT, WHICH IS IN EXISTENCE AT THE TIME THE CONTRACT IS TO BE AWARDED, FOR THE *** ACQUISITION OF SUCH *** PERSONNEL."

ALTHOUGH THE CITED PROVISION CLEARLY CONTEMPLATES THAT A FIRM ARRANGEMENT FOR PERSONNEL USUALLY CONSTITUTES ACCEPTABLE EVIDENCE OF "ABILITY TO OBTAIN" PERSONNEL, THE USE OF THE WORD "NORMALLY" IN THE PROVISION OBVIOUSLY IMPLIES THAT SOMETHING OTHER THAN AN EXPRESS COMMITMENT FOR PERSONNEL MAY CONSTITUTE ACCEPTABLE EVIDENCE OF "ABILITY TO OBTAIN" PERSONNEL. THUS, IN B-179193, APRIL 1, 1974, INVOLVING INTERPRETATION OF A SIMILAR PROVISION IN THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), WE CONCLUDED THAT THE EXISTENCE OF A POOL OF AVAILABLE LABOR, INCLUDING A HISTORY OF TURNOVER OF SKILLED EMPLOYEES FROM INCUMBENT CONTRACTORS TO CURRENT CONTRACTORS, COUPLED WITH A 1 MONTH PHASE-IN PERIOD DURING WHICH PERSONNEL COULD BE HIRED, PRESENTED ADEQUATE REASONS TO SUPPORT AN AGENCY'S FINDING THAT A CONCERN HAD THE "ABILITY TO OBTAIN" NEEDED PERSONNEL, NOTWITHSTANDING THE ABSENCE OF A FIRM COMMITMENT FOR THOSE PERSONNEL AT TIME OF AWARD.

RECOGNIZING THE CONSIDERABLE RANGE OF DISCRETION ACCORDED THE CONTRACTING AGENCY IN ARRIVING AT A REASONED JUDGMENT AS TO WHETHER A PROSPECTIVE CONTRACTOR IS RESPONSIBLE, WE CANNOT CONCLUDE THAT HEW'S FINDING - THAT AIR HAD "ABILITY TO OBTAIN" THE PERSONNEL IN QUESTION, NOTWITHSTANDING THE ABSENCE OF EXPRESS COMMITMENTS FOR THOSE PERSONNEL LACKS A RATIONAL BASIS IN VIEW OF: (1) AIR'S PRIOR SUCCESSFUL RECRUITING EXPERIENCE ON OTHER CONTRACTS; AND (2) THE LENGTHY "LEAD TIMES" WITHIN WHICH AIR IS CONTRACTUALLY PERMITTED TO OBTAIN THE EMPLOYEES IN QUESTION.

SUPPORTING THIS CONCLUSION IS AIR'S SUCCESS IN RECRUITING A HIGHLY QUALIFIED PERSON TO BE ITS ASSISTANT PROJECT DIRECTOR. THIS CURRENT SUCCESS, IN OUR VIEW, TENDS TO REBUT DA'S ASSERTION THAT THE MANPOWER REQUIRED FOR PERFORMANCE OF THE CONTRACT IS IN "EXTREMELY LIMITED SUPPLY."

CONSEQUENTLY, THE PROTEST IS DENIED.