B-182018, DEC 26, 1974

B-182018, DEC 26, 1974

1. EVALUATION OF EXPERIENCE OF FIRM SUBMITTING PROPOSAL MAY ONLY BE PROPERLY DONE UNDER EXPERIENCE CRITERIA SPECIFICALLY OUTLINED IN RFP AND FAILURE TO CONSIDER OTHER RELATED EXPERIENCE URGED BY PROTESTER IS NOT NOW PROPER BASIS FOR PROTEST, AS THIS ISSUE IS UNTIMELY RAISED UNDER INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 C.F.R. SEC. 20.2(A). 2. GOVERNMENT COST ESTIMATE, AND CRITERIA COMPRISING BASIS FOR ESTIMATE, ARE NOT SUBJECT TO QUESTION AT THIS TIME, AS PROCURING AGENCY CAN BEST DETERMINE ITS NEEDS AND COSTS RESULTING FROM ACHIEVING THIS END.

NICKUM & SPAULDING ASSOCIATES, INC.:

ON APRIL 10, 1974, REQUEST FOR PROPOSALS (RFP) NO. N00024-74-R 0571(S) WAS ISSUED BY THE NAVAL SHIPS SYSTEMS COMMAND (NAVSHIPS), FOR THE DESIGNING OF THE AUXILIARY REPAIR DRYDOCK, MEDIUM (ARDM), A NEW DRYDOCK TO REPLACE EXISTING NAVY DRYDOCKS. MAY 10, 1974, WAS ESTABLISHED AS THE CLOSING DATE FOR RECEIPT OF PROPOSALS AND FIVE FIRMS SUBMITTED PROPOSALS BY THAT DATE.

IN ACCORDANCE WITH ESTABLISHED NAVSHIPS PROCEDURE, A CONTRACT AWARD REVIEW PANEL WAS ESTABLISHED TO REVIEW PROPOSALS AND TO RECOMMEND A SOURCE SELECTION TO THE CONTRACTING OFFICER. THE REVIEW PANEL, IN TURN, APPOINTED A TECHNICAL EVALUATION PANEL, COMPOSED OF ENGINEERING PERSONNEL FROM THE NAVAL SHIP ENGINEERING CENTER AND THE NAVSHIPS PROJECT OFFICER RESPONSIBLE FOR THE ARDM, TO REVIEW AND EVALUATE THE TECHNICAL PORTION OF THE PROPOSALS.

ALL PROPOSALS WERE EVALUATED IN ACCORDANCE WITH THE CRITERIA AND THEIR RELATIVE ORDER OF IMPORTANCE AS SET FORTH IN SECTION "D" OF THE RFP. THE RESULT OF THE EVALUATION WAS THE CONCLUSION THAT THE PROPOSAL SUBMITTED BY M. ROSENBLATT & SON, INC. (MRS), WAS SO SUPERIOR THAT NO OTHER TECHNICAL PROPOSAL COULD BE IMPROVED, THROUGH DISCUSSIONS, TO THE SAME LEVEL. AS A RESULT, THE EVALUATION PANEL ADVISED THE REVIEW PANEL THAT "*** SO FAR AS TECHNICAL COMPETENCY IS CONCERNED, AWARD OF THE CONTRACT MAY BE MADE TO M. ROSENBLATT & SON, INC. ON THE BASIS OF THEIR HAVING SUBMITTED THE MOST FAVORABLE INITIAL PROPOSAL."

THE REVIEW PANEL CONCURRED IN THIS RECOMMENDATION AFTER EXAMINING THE EVALUATION AND FURTHER FOUND THAT THE MRS PROPOSAL COST WAS BOTH FAIR AND REASONABLE. ACCORDINGLY, THE REVIEW PANEL RECOMMENDED TO THE CONTRACTING OFFICER THAT AWARD BE MADE TO MRS. THE CONTRACTING OFFICER, AFTER REVIEWING THE EVALUATION RECORD AND RECOMMENDATION, AND INASMUCH AS THE TERMS OF THE RFP PROVIDED FOR THE POSSIBILITY OF AWARD WITHOUT DISCUSSIONS, MADE AN AWARD OF THE PROCUREMENT TO MRS ON JULY 19, 1974.

A DEBRIEFING WAS HELD WITH REPRESENTATIVES OF ONE OF THE UNSUCCESSFUL OFFERORS, NICKUM & SPAULDING ASSOCIATES, INC. (NS), ON AUGUST 7, 1974. SUBSEQUENTLY, BY LETTER DATED AUGUST 12, 1974, NS PROTESTED THE AWARD OF THE CONTRACT TO MRS TO OUR OFFICE.

ALTHOUGH FOUR ISSUES OF PROTEST HAD INITIALLY BEEN RAISED, AT A CONFERENCE HELD ON THIS MATTER AT OUR OFFICE ON NOVEMBER 21, 1974, IT WAS AGREED BY COUNSEL FOR NS THAT NS'S PROTEST MUST STAND OR FALL ON THE FOLLOWING TWO ISSUES:

(1) NS'S PROPOSAL WAS IMPROPERLY EVALUATED WITH REGARD TO ITS COMMERCIAL DRYDOCK EXPERIENCE AND THE RFP WAS UNDULY RESTRICTIVE IN ITS EVALUATION OF ONLY COMMERCIAL EXPERIENCE;

(2) THE GOVERNEMNT'S COST ESTIMATE FOR THIS PROCUREMENT WAS INFLATED, AND THAT THE GOVERNMENT'S REFUSAL TO RECONSIDER ITS ESTIMATE, DESPITE NS'S LOWER ESTIMATE, WAS UNREASONABLE.

WITH REGARD TO NS'S FIRST CONTENTION, THE RFP STATED THAT EVALUATION OF THE OFFEROR'S EXPERIENCE WOULD BE AS FOLLOWS:

"(F) APPLICABLE EXPERIENCE: EXPERIENCE IN THE DESIGN OF FLOATING DRYDOCKS IS CONSIDERED IMPERATIVE; THEREFORE, DISCUSSION OF THE OFFEROR'S RECENT EXPERIENCE IN THE FIELD OF COMMERCIAL FLOATING DRYDOCKS SHALL BE PROVIDED,

NS CONTENDS THAT THE FAILURE OF NAVSHIPS TO CONSIDER FOR EVALUATION PURPOSES ANY OF ITS OTHER COMMERCIAL EXPERIENCE, OTHER THAN FLOATING DRYDOCKS EXPERIENCE, OR ANY OF ITS NAVY DRYDOCK EXPERIENCE WAS ARBITRARY AND CAPRICIOUS.

IN OUR OPINION, THE ABOVE-CITED PORTION OF THE RFP IS QUITE SPECIFIC WITH REGARD TO WHAT TYPE OF EXPERIENCE WOULD BE USED FOR EVALUATION PURPOSES. HAD NS OR ANY OTHER OFFEROR FELT THAT THE EXPERIENCE REQUIREMENT WAS UNDULY RESTRICTIVE, THIS OBJECTION SHOULD HAVE BEEN RAISED PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS. IT IS NOTED, HOWEVER, THAT NONE OF THE FIVE FIRMS SUBMITTING PROPOSALS OBJECTED TO THIS CRITERIA. THEREFORE, ANY OBJECTION CONCERNING THE ALLEGED RESTRICTIVENESS OF THIS CRITERIA WOULD NOW BE UNTIMELY RAISED (SEE OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 CODE OF FEDERAL REGULATIONS SEC 20.2(A) (1974)), AND THEREFORE, WILL NOT BE CONSIDERED.

AS CONCERNS THE EVALUATION MADE ON THE SPECIFIED EXPERIENCE CRITERIA, THE RECORD BEFORE US SHOWS THAT NS'S PROPOSAL WAS EVALUATED IN ACCORDANCE WITH THE CRITERIA AS SET FORTH IN THE EVALUATION PLAN. ALL OF THE OTHER FIRMS WERE EVALUATED ON THIS SAME CRITERIA. UNDER THIS PROCEDURE, MRS WAS DULY SELECTED FOR AWARD. WE DO NOT FIND THAT THE AWARD MADE WAS CONTRARY TO EXISTING LAW OR REGULATION, OR THAT IT CAN BE CONSIDERED TO BE ARBITRARY OR CAPRICIOUS. SEE MATTER OF AEL SERVICE CORPORATION, ET. AL., B-179703, APRIL 26, 1974, 53 COMP. GEN. .

AS CONCERNS NS'S ALLEGATION THAT THE GOVERNMENT COST ESTIMATE WAS INFLATED, WE FIND THIS POSITION TO BE WITHOUT MERIT.

NS CONTENDS THAT ITS TOTAL COST-PLUS-FIXED-FEE FOR THE DESIGN PROJECT IS ONLY ONE-FIFTH OF THE GOVERNMENT ESTIMATE AND THAT THE NAVSHIPS ESTIMATE OF 4,750 MAN-DAYS TO PERFORM THE WORK REQUIRED IS UNDULY HIGH.

GOVERNMENT COST ESTIMATES MAY PROPERLY BE USED IN DETERMINING THE REALISM OF PROPOSED COST AND TECHNICAL APPROACHES. SEE MATTER OF RAYTHEON COMPANY, B-180414, SEPTEMBER 3, 1974, 54 COMP. GEN.

. AND WE HAVE NOTED THAT THE PROCURING AGENCY'S JUDGMENT AS TO THE METHODS USED IN DEVELOPING THE GOVERNMENT'S COST ESTIMATE AND THE CONCLUSIONS REACHED IN EVALUATING PROPOSED COSTS ARE ENTITLED TO GREAT WEIGHT (54 COMP. GEN., SUPRA; B-176311(2), OCTOBER 26, 1973) SINCE THE AGENCIES ARE IN THE BEST POSITION TO DETERMINE REALISM OF COSTS AND CORRESPONDING TECHNICAL APPROACHES AND MUST BEAR THE MAJOR CRITICISMS FOR ANY DIFFICULTIES EXPERIENCED BY REASON OF DEFECTIVE ANALYSIS. 50 COMP. GEN. 390 (1970).

NAVSHIPS INSISTS THAT ITS COST ESTIMATE WAS VALID, THAT MRS WAS WELL WITHIN A REASONABLE RANGE (5 PERCENT) OF THE ESTIMATE, AND THAT THERE IS NO BASIS FOR CONCLUDING THAT IT ACTED UNREASONABLY IN NOT REESTIMATING THE COST AND MAN-DAY EFFORT FOR PERFORMING THE CONTRACT.

FROM THE RECORD BEFORE OUR OFFICE, WE HAVE NO REASON TO CONCLUDE THAT THE GOVERNMENT ESTIMATES FOR THIS PROCUREMENT WERE ARRIVED AT ON OTHER THAN AN INDEPENDENT BASIS. MOREOVER, IT IS NOT OUR FUNCTION TO DECIDE WHETHER AN INDEPENDENT GOVERNMENT ESTIMATE IS VALID OR WHETHER AN OFFEROR'S PROPOSAL FALLS WITHIN A "REASONABLE RANGE" OF THAT ESTIMATE. MATTER OF VINNELL CORPORATION, B-180557, OCTOBER 8, 1974. HOWEVER, WE ARE COGNIZANT OF THE FACT THAT THREE OF THE FIVE FIRMS SUBMITTING PROPOSALS ESTIMATED THE REQUIRED MAN-DAYS WITHIN FIVE PERCENT OF THE GOVERNMENT'S ESTIMATE. MOREOVER, NS HAS STATED THAT IT DETERMINED THAT SOME OF THE REQUIRED STUDIES OR CONCEPT DEVELOPMENTS WERE UNNECESSARILY INCLUDED AMONGST THE CONTRACT DESIGN TASKS (E.G. "STRIPPING SYSTEM") AND, THEREFORE, INCLUDED NEITHER A FEE NOR MAN-DAY REQUIREMENT FOR THESE ITEMS. WHILE WE DO NOT QUESTION THE SINCERITY OF NS'S BELIEF AS TO THE NECESSITY FOR CERTAIN ITEMS, IT HAS CONSISTENTLY BEEN THE POSITION OF OUR OFFICE THAT THE PREPARATION AND ESTABLISHMENT OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE PROCUREMENT AGENCY, TO BE QUESTIONED BY OUR OFFICE ONLY WHEN NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. MATTER OF EAST BAY AUTO SUPPLY, INC., B-180434, APRIL 12, 1974, 53 COMP. GEN. , AND CASES CITED THEREIN. FROM THE RECORD BEFORE US, WE FIND NO BASIS UPON WHICH TO QUESTION NAVSHIPS REQUIREMENTS OR ESTIMATES FOR THIS PROCUREMENT.

ACCORDINGLY, THE PROTEST IS DENIED.