B-181921, MAR 19, 1975

B-181921: Mar 19, 1975

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WHERE SOLICITATION WAS SUFFICIENTLY CLEAR AS TO THE GOVERNMENT'S PRIMARY INTERESTS. THERE IS NO VALID BASIS FOR IMPOSING AN OBLIGATION ON THE AGENCY TO ADVISE OFFERORS OF ANY OR ALL TECHNICAL APPROACHES WHICH WOULD RESULT IN A TECHNICALLY UNACCEPTABLE PROPOSAL. 2. AGENCY PRACTICE OF VERIFYING RESUMES SUBMITTED WITH TECHNICAL PROPOSALS ONLY WHERE AGENCY IS NOT FAMILIAR WITH OFFEROR OR WHERE INCONSISTENT INFORMATION IS KNOWN IS REASONABLE. TECHNICAL EXPERTISE AND EXPERIENCE WAS TO BE USED TO GENERATE DRAFTS OF SEVERAL POTENTIAL EXPERIMENTS TO BE CONDUCTED BY THE DEPARTMENT AND A COOPERATING REGULATORY AGENCY. THE CONTRACTS WERE TO PROVIDE A MECHANISM FOR THE STAFF OF ETIP TO INFORMALLY DISCUSS EXPERIMENTS WITH DISINTERESTED PERSONS WHO HAVE INSIGHT AND EXPERIENCE IN THE APPROPRIATE REGULATORY FIELD.

B-181921, MAR 19, 1975

1. WHERE SOLICITATION WAS SUFFICIENTLY CLEAR AS TO THE GOVERNMENT'S PRIMARY INTERESTS, THERE IS NO VALID BASIS FOR IMPOSING AN OBLIGATION ON THE AGENCY TO ADVISE OFFERORS OF ANY OR ALL TECHNICAL APPROACHES WHICH WOULD RESULT IN A TECHNICALLY UNACCEPTABLE PROPOSAL. 2. AGENCY PRACTICE OF VERIFYING RESUMES SUBMITTED WITH TECHNICAL PROPOSALS ONLY WHERE AGENCY IS NOT FAMILIAR WITH OFFEROR OR WHERE INCONSISTENT INFORMATION IS KNOWN IS REASONABLE.

DGS ASSOCIATES:

THIS MATTER INVOLVES THE PROTEST BY DGS ASSOCIATES AGAINST THE AWARD OF CONTRACTS BY THE DEPARTMENT OF COMMERCE, EXPERIMENTAL TECHNOLOGY INCENTIVES PROGRAM (ETIP), UNDER SOLICITATION NO. 4-35961.

THE SOLICITATION CONTEMPLATED A NEGOTIATED PROCUREMENT FOR TWO COST PLUS- FIXED-FEE CONTRACTS FOR THE DESIGN AND ANALYSIS OF REGULATORY EXPERIMENTS. THE DEPARTMENT SOUGHT TO OBTAIN COMPREHENSIVE BACKGROUND INFORMATION REGARDING AN AGENCY OR INDUSTRY FROM A FIRM WITH THE NECESSARY EXPERIENCE AND TECHNICAL CAPABILITIES TO PROVIDE INFORMATION ON SHORT NOTICE. TECHNICAL EXPERTISE AND EXPERIENCE WAS TO BE USED TO GENERATE DRAFTS OF SEVERAL POTENTIAL EXPERIMENTS TO BE CONDUCTED BY THE DEPARTMENT AND A COOPERATING REGULATORY AGENCY. (THE DRAFTS WOULD BE USED TO BEGIN DISCUSSIONS WITH AN AGENCY TO DETERMINE ITS INTEREST IN COOPERATING WITH AN EXPERIMENT.) THE CONTRACTS WERE TO PROVIDE A MECHANISM FOR THE STAFF OF ETIP TO INFORMALLY DISCUSS EXPERIMENTS WITH DISINTERESTED PERSONS WHO HAVE INSIGHT AND EXPERIENCE IN THE APPROPRIATE REGULATORY FIELD.

UNDER ONE CONTRACT THE EXPERIMENTS TO BE DRAFTED WERE TO BE WITH AGENCIES WHICH REGULATE A PARTICULAR, DEFINABLE AND LIMITED SEGMENT OF THE PRIVATE SECTOR, SUCH AS THE INTERSTATE COMMERCE COMMISSION, THE FEDERAL COMMUNICATION COMMISSION OR THE FEDERAL POWER COMMISSION. THE EXPERIMENTS TO BE PROPOSED UNDER THE OTHER CONTRACT WERE TO BE WITH AGENCIES WHOSE AUTHORITY EXTENDS OVER SEVERAL DIVERSE SEGMENTS OF THE PRIVATE SECTOR, SUCH AS THE ENVIRONMENTAL PROTECTION AGENCY, THE OCCUPATIONAL HEALTH AND SAFETY ADMINISTRATION OR THE ANTITRUST DIVISION OF THE DEPARTMENT OF JUSTICE.

THE RECORD SHOWS THAT THE PROPOSAL SUBMITTED BY DGS DEALT WITH THE DEVELOPMENT OF EXPERIMENTS IN THE GENERAL AREA OF GOVERNMENT PROCUREMENT REGULATIONS. HOWEVER, THE DEPARTMENT VIEWED THIS APPROACH AS BEING TOO LIMITED AND INCONSISTENT WITH THE SOLICITATION PROVISIONS DEALING WITH THE INFLUENCE OF REGULATORY AGENCIES ON TECHNOLOGICAL ADVANCEMENT IN THE PRIVATE SECTOR. THE DEPARTMENT BELIEVES IT SHOULD HAVE BEEN CLEAR TO DGS FROM THE SOLICITATION THAT THE DEVELOPMENT OF EXPERIMENTS BASED PRIMARILY ON PROCUREMENT REGULATIONS WOULD NOT SATISFY THE NEEDS OF THE PROGRAM. CONSEQUENTLY, THE DGS PROPOSAL RECEIVED THE LOWEST TOTAL POINT SCORE (30 OUT OF A POSSIBLE 100) PURSUANT TO THE EVALUATION CRITERIA IN THE SOLICITATION AND IT WAS NOT CONSIDERED TO BE IN A COMPETITIVE RANGE TO JUSTIFY NEGOTIATIONS WITH THE FIRM.

DGS ARGUES THAT THE DEPARTMENT'S SPECIFICATION WAS DEFECTIVE IN THAT THE GOVERNMENT ACTUALLY INTENDED TO EXCLUDE CONSIDERATION OF PROCUREMENT REGULATIONS AS A BASIS FOR THE DESIGN OF EXPERIMENTS. IT BELIEVES THE GOVERNMENT IMPROPERLY FAILED TO MAKE THIS PREDILECTION EXPLICIT IN THE SOLICITATION. MOREOVER, DGS STATES IT WAS ADVISED BY THE DEPARTMENT AFTER ITS OFFER WAS REJECTED THAT OTHER ETIP STUDIES ARE EXAMINING THE AREA PROPOSED BY DGS AND THE PROTESTER OBJECTS TO THE FAILURE TO ADVISE OFFERORS OF THIS FACT IN THE SOLICITATION.

AS A GENERAL RULE THIS OFFICE HAS HELD THAT A DETERMINATION OF THE NEEDS OF THE GOVERNMENT AND OF THE METHOD OF ACCOMMODATING SUCH NEEDS IS PRIMARILY THE RESPONSIBILITY OF THE PROCURING AGENCY AND IN THE ABSENCE OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR THE ACTION TAKEN WE ARE NOT REQUIRED TO OBJECT. 40 COMP. GEN. 35 (1960). HOWEVER, SOLICITATIONS WHICH DO NOT PROVIDE OFFERORS WITH SUFFICIENT INFORMATION TO ENABLE THEM TO PREPARE AND SUBMIT COMPETITIVE PROPOSALS ARE SUBJECT TO OBJECTION. COMP. GEN. 314 (1968).

IN THIS CASE WE ARE INCLINED TO AGREE WITH THE AGENCY'S POSITION THAT IT WAS SUFFICIENTLY CLEAR FROM THE SOLICITATION THAT IT WAS PRIMARILY INTERESTED IN POSSIBLE EXPERIMENTS WITH REGULATORY AGENCIES, SUCH AS THOSE CITED IN THE SOLICITATION. THE SOLICITATION REPEATEDLY EMPHASIZED THE DEPARTMENT'S INTEREST IN DEALING WITH REGULATORY AGENCIES FOR THE PURPOSE OF TRACKING THE ECONOMIC AND TECHNOLOGICAL EFFECTS OF THEIR ACTIONS UPON THE PRIVATE SECTOR. THE GOVERNMENT'S PROCUREMENT REGULATIONS, ON THE OTHER HAND, WOULD AFFECT THE PRIVATE SECTOR ONLY INSOFAR AS A FIRM MAY CHOOSE TO CONTRACT WITH THE GOVERNMENT AND WAS NOT CONSIDERED AN ACCEPTABLE APPROACH. WE FIND NO BASIS TO DISAGREE WITH THIS EVALUATION. IN THE CIRCUMSTANCES, WE FEEL THE AGENCY WAS NOT REQUIRED TO ADVISE OFFERORS OF ANY OR ALL APPROACHES WHICH WOULD RESULT IN A TECHNICALLY UNACCEPTABLE PROPOSAL. SEE 46 COMP. GEN. 606, 609 (1967).

DGS'S SECOND CONTENTION IS THAT ETIP USES AN INAPPROPRIATE SOURCE SELECTION PROCEDURE, THAT IS, THAT ETIP LACKS A RESUME VERIFICATION PROCEDURE WHICH PERMITS FRAUDULENT OR OVERSTATED PERSONNEL REPRESENTATIONS TO GO UNCHECKED. DGS ALLEGES THAT SINCE MOST OF THE TECHNICAL EVALUATION CRITERIA LISTED IN THE SOLICITATION ARE CONCERNED WITH THE QUALITY AND EXPERIENCE OF PERSONNEL PROPOSED TO BE ASSIGNED TO CARRY OUT THE CONTRACT, FAILURE TO VERIFY RESUMES IS CONTRARY TO THE PRINCIPAL OBJECTIVE OF THE ETIP.

THE POSITION OF THE DEPARTMENT IS THAT RESUMES SUBMITTED ARE CONSIDERED VALID IN THE ABSENCE OF INFORMATION TO THE CONTRARY AND THAT VERIFICATION WOULD BE INDICATED WHERE THE DEPARTMENT WAS NOT FAMILIAR WITH EITHER THE FIRM OR THE CONTRACTOR'S STAFF. IN OUR OPINION THIS POSITION IS REASONABLE AND THE PROTEST BY DGS ON THIS GROUND IS DENIED.

INASMUCH AS WE HAVE DENIED THE PROTEST WE FIND NO BASIS FOR CONSIDERING THE FIRM'S REQUEST FOR PAYMENT OF BID PREPARATION AND RELATED COSTS.