B-182193, DEC 24, 1974

B-182193: Dec 24, 1974

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THERE IS NO REQUIREMENT TO EXTEND CLOSING DATE FOR RECEIPT OF PROPOSALS MERELY TO EQUALIZE PROPOSAL PREPARATION PERIOD FOR ALL OFFERORS. CUT-OFF DATE FOR RECEIPT OF BEST AND FINAL OFFERS MUST BE COMMON AND MAY NOT BE "SEQUENTIAL" MERELY TO EQUALIZE TIME FOR SUBMISSION OF REVISED PROPOSALS AFTER NEGOTIATIONS: AND SINCE GAO WILL NOT "SECOND GUESS" AGENCY EVALUATION OF MERITS OF SUCCESSFUL OFFEROR'S TECHNICAL PROPOSAL IN ABSENCE OF EVIDENCE OF ARBITRARINESS. INCORPORATED: REQUEST FOR PROPOSALS (RFP) 4-3663 WAS ISSUED JANUARY 23. THE SUCCESSFUL OFFEROR WAS EXPECTED TO PROVIDE AT LEAST 1100 MAN-DAYS OF PROFESSIONAL CONSULTANT SERVICES TO MINORITY BUSINESSES. THE REQUIREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY (CBD) ON JANUARY 25.

B-182193, DEC 24, 1974

PROTEST BY UNSUCCESSFUL OFFEROR DENIED SINCE NO LEGAL RIGHTS CONFERRED BY DELAY IN CONDUCTING POST-AWARD DEBRIEFING CONFERENCE FOR OFFEROR; RECORD DOES NOT INDICATE ANY IMPROPRIETY IN NUMBER OF SOLICITATIONS DISTRIBUTED OR SOURCES SOLICITED; THERE IS NO REQUIREMENT TO EXTEND CLOSING DATE FOR RECEIPT OF PROPOSALS MERELY TO EQUALIZE PROPOSAL PREPARATION PERIOD FOR ALL OFFERORS; CUT-OFF DATE FOR RECEIPT OF BEST AND FINAL OFFERS MUST BE COMMON AND MAY NOT BE "SEQUENTIAL" MERELY TO EQUALIZE TIME FOR SUBMISSION OF REVISED PROPOSALS AFTER NEGOTIATIONS: AND SINCE GAO WILL NOT "SECOND GUESS" AGENCY EVALUATION OF MERITS OF SUCCESSFUL OFFEROR'S TECHNICAL PROPOSAL IN ABSENCE OF EVIDENCE OF ARBITRARINESS.

INNOCEPT, INCORPORATED:

REQUEST FOR PROPOSALS (RFP) 4-3663 WAS ISSUED JANUARY 23, 1974, BY THE DEPARTMENT OF COMMERCE'S RESEARCH AND TECHNICAL ASSISTANCE BRANCH, WASHINGTON, D.C., SETTING FORTH A REQUIREMENT FROM THE OFFICE OF MINORITY BUSINESS ENTERPRISE (OMBE), REGION 5, FOR TECHNICAL ASSISTANCE SERVICES FOR THE LATTER'S DALLAS HEADQUARTERS. THE SUCCESSFUL OFFEROR WAS EXPECTED TO PROVIDE AT LEAST 1100 MAN-DAYS OF PROFESSIONAL CONSULTANT SERVICES TO MINORITY BUSINESSES. THE REQUIREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY (CBD) ON JANUARY 25, 1974, AND FEBRUARY 25, 1974 WAS SET AS THE CLOSING DATE FOR RECEIPT OF PROPOSALS.

THE RECORD SHOWS THAT PROPOSALS WERE RECEIVED FROM 10 FIRMS, AND EACH WAS INDEPENDENTLY EVALUATED AND SCORED BY FIVE MEMBERS OF THE OMBE REGION 5 STAFF IN ACCORDANCE WITH THE NUMERICALLY WEIGHTED EVALUATION FACTORS SET FORTH IN THE SOLICITATION. FOUR FIRMS' PROPOSALS WERE DETERMINED TECHNICALLY ACCEPTABLE, WITH THE FOLLOWING RATINGS, AND WARRANTING FURTHER CONSIDERATION:

J. A. REYES ASSOCIATES 92

INNOCEPT, INC. 67

DEVELOPMENT ASSOCIATES, INC. 65

LESLIE BROOKS AND ASSOCIATES, INC. 58

NEGOTIATIONS WERE CONDUCTED WITH THE ABOVE OFFERORS ON APRIL 10 AND 11, 1974, AT WHICH TIME WEAKNESSES AND ESTIMATED COSTS OF THE PROPOSALS WERE REPORTEDLY DISCUSSED. EACH OF THE OFFERORS WAS ADVISED TO SUBMIT ANY PROPOSAL REVISIONS BY 5:00 P.M., APRIL 16, 1974.

UPON REVIEWING ALL ADDITIONAL SUBMISSIONS ON THE BASIS OF THE SAME EVALUATION CRITERIA, A FINAL RANKING OF THE FOUR OFFERORS IN THE COMPETITIVE RANGE REVEALED THAT NOTWITHSTANDING INNOCEPT'S ABILITY TO INCREASE ITS TECHNICAL RATING TO 83 THROUGH THE NEGOTIATION PROCESS, REYES REMAINED THE HIGHEST RATED OFFEROR AT 92, AND ITS ESTIMATED COST OF $244,500 WAS THE LOWEST OF THE FOUR. ACCORDINGLY, IT WAS DETERMINED THAT A CONTRACT SHOULD BE AWARDED TO REYES (UNDER THE AWARD CRITERIA OF PAGE 6 OF THE RFP) AS THAT OFFEROR POSSESSING THE TECHNICAL/COST RELATIONSHIP MOST ADVANTAGEOUS TO THE GOVERNMENT. THE AWARD WAS EXECUTED MAY 7, 1974, AND UNSUCCESSFUL OFFERORS WERE SO NOTIFIED BY LETTER OF THE SAME DATE.

SUBSEQUENT TO RECEIVING A REQUESTED DEBRIEFING ON SEPTEMBER 4, 1974, INNOCEPT PROTESTED THE FOLLOWING TO OUR OFFICE:

(1) THE DELAY INVOLVED IN OBTAINING THE SEPTEMBER 4 DEBRIEFING;

(2) THE FACT THAT IT WAS UNABLE TO OBTAIN A COPY OF THE RFP UNTIL FEBRUARY 14, AND WAS COMPELLED TO ACQUIRE SAID COPY THROUGH THE REGIONAL OFFICE;

(3) THE AGENCY'S REFUSAL TO EXTEND THE DATE FOR RECEIPT OF PROPOSALS, WHICH IT IS CONTENDED PLACED INNOCEPT AT A RELATIVE DISADVANTAGE TO FIRMS WHICH HAD ALLEGEDLY BEEN ON A PRE-SELECTED MAILING LIST, PERMITTING EARLIER RECEIPT OF THE RFP AND MORE TIME TO PREPARE THEIR PROPOSALS. THIS REGARD, IT IS ALLEGED THAT THE MAILING LIST DISCRIMINATED AGAINST NONMINORITY FIRMS SUCH AS INNOCEPT TO THE ADVANTAGE OF MINORITY-OWNED CONCERNS OR RECIEPIENTS OF PRIOR SOLE SOURCE CONTRACTS OR GRANTS;

(4) THE NEGOTIATION PERIOD WHICH IT IS CONTENDED WAS PREJUDICIAL TO INNOCEPT IN THAT IT CONSUMED ONLY 2 DAYS AND THAT INNOCEPT HAD LESSER TIME THAN OTHER OFFERORS TO SUBMIT PROPOSAL REVISIONS BECAUSE ITS NEGOTIATIONS WERE CONDUCTED ON THE SECOND DAY;

(5) EVALUATION PROCEDURES WHICH IT IS CONTENDED FAVORED OFFERORS WHO PREVIOUSLY HELD OMBE CONTRACTS AS SUCH EXPERIENCE WAS UNDULY WEIGHTED. INNOCEPT CONTENDED THAT THE CONTRACTING AGENCY SHOULD HAVE MITIGATED THE EFFECTS OF SUCH BIAS BY CONSULTING THE SMALL BUSINESS ADMINISTRATION, WITH WHOM INNOCEPT HELD PRIOR CONTRACTS, AS TO THE CAPABILITIES OF THE RESPECTIVE OFFERORS, AND THE FAILURE TO DO SO WAS ALLEGEDLY PREJUDICIAL TO INNOCEPT;

(6) INNOCEPT REFERS TO AN EXCHANGE AT THE SEPTEMBER 4 DEBRIEFING DURING WHICH IT WAS ALLEGEDLY INFORMED THAT AN AVERAGE OF 3 MAN-DAYS FOR EACH BUSINESS EVALUATION WAS DEEMED UNDULY HIGH SINCE MOST OFFERORS HAD ESTIMATED 2 DAYS OR LESS. IN THIS REGARD, IT IS INNOCEPT'S CONTENTION THAT ITS PROPOSAL WAS UNFAIRLY EVALUATED SINCE THE 3 MAN-DAY ESTIMATE WAS PREDICATED UPON ITS SUPERIOR EXPERIENCE IN PERFORMING BUSINESS EVALUATION TASKS FOR SBA; AND

(7) THAT THE SUCCESSFUL OFFEROR WAS PRE-SELECTED BY VIRTUE OF WHAT INNOCEPT CONSIDERS AN UNDULY AND ARTIFICIALLY HIGH TECHNICAL RATING IN RELATION TO THE OTHER OFFERS.

THE CONTRACTING AGENCY REPORTS THAT INNOCEPT'S REQUEST FOR A DEBRIEFING CONFERENCE, SET OUT IN ITS LETTER OF MAY 21, 1974, TO THE CONTRACTING OFFICER, WAS NOT RECEIVED BY THE CONTRACTS BRANCH UNTIL JUNE 21, 1974, AND SUCH DELAY WAS ATTRIBUTED TO AN APPARENT INADEQUATE ADDRESS. IT IS REPORTED THAT AN IMMEDIATE DEBRIEFING COULD NOT BE CONDUCTED DUE TO A HEAVY WORKLOAD, BUT THAT ONE WAS SCHEDULED FOR AUGUST 8 IN DALLAS AND WAS FURTHER DELAYED UNTIL SEPTEMBER 4 DUE TO WORKLOAD COMMITMENTS AND SCHEDULED VACATIONS.

REGARDING THE DELAY IN THE DEBRIEFING CONFERENCE, FEDERAL PROCUREMENT REGULATIONS (FPR) 1-3.103(B) (JUNE 1964 ED.) PROVIDES THAT UPON REQUEST, UNSUCCESSFUL OFFERORS WHOSE OFFERED PRICES WERE LOWER THAN THE SUCCESSFUL CONTRACTOR'S SHALL BE FURNISHED THE REASONS WHY THEIR PROPOSALS WERE NOT ACCEPTED. IN THE INSTANT CASE, INNOCEPT'S OFFERED PRICE WAS HIGHER THAN THE SUCCESSFUL CONTRACTOR'S. ACCORDINGLY, IT WOULD APPEAR THAT THE GRANTING OF THE CONFERENCE IN THE INSTANT CASE WAS AN ACT OF ADMINISTRATIVE COMITY IN RESPONSE TO INNOCEPT'S REQUEST AND THE DELAY INVOLVED, WHILE UNFORTUNATE, APPEARS ATTRIBUTABLE PRIMARILY TO BONA FIDE ADMINISTRATIVE DIFFICULTIES RATHER THAN ANY EFFORT TO IMPEDE INNOCEPT'S ACCESS TO A DETAILED EXPLANATION OF ITS PROPOSAL'S EVALUATION. CONSEQUENTLY, WE FIND NOTHING LEGALLY OBJECTIONABLE WITH REGARD TO THE TIME LAPSE.

CONCERNING INNOCEPT'S DIFFICULTIES IN OBTAINING A COPY OF THE SOLICITATION, IT IS REPORTED THAT THE CONTRACTS BRANCH FURNISHED PROPOSALS TO 39 FIRMS AND WAS UNABLE TO FURNISH A COPY TO INNOCEPT DUE TO EXHAUSTION OF THE SUPPLY. THE SYNOPSIS OF THE PROCUREMENT PLACED IN THE CBD SPECIFICALLY REFERRED TO A NOTE THEREIN TO THE EFFECT THAT THE AVAILABILITY OF THE RFP WAS LIMITED AND WOULD BE FURNISHED ON A FIRST REQUESTED, FIRST DISTRIBUTED BASIS. WHILE SECTION 1-3.208(B)(2) OF FPR (JUNE 1964 ED.) REQUIRES MAXIMUM COMPETITION, WE HAVE HELD, WITH RESPECT TO A SIMILAR PROVISION APPLICABLE TO THE ARMED SERVICES, THAT SUCH REQUIREMENT DOES NOT OBLIGATE THE GOVERNMENT TO FURNISH UNLIMITED COPIES OF SOLICITATIONS TO PROSPECTIVE OFFERORS. B-178032, JUNE 26, 1973. IT IS OUR VIEW THAT A SUFFICIENT NUMBER OF RFPS WERE DISTRIBUTED ON AN EQUITABLE BASIS TO SATISFY THE STATUTORY REQUIREMENT. IT IS NOTED, FURTHERMORE, THAT INNOCEPT WAS IN FACT ABLE TO OBTAIN A COPY FROM THE OMBE DALLAS OFFICE.

WITH REGARD TO THE REQUESTED EXTENSION OF THE OPENING DATE, WE DO NOT BELIEVE IT WAS AN ABUSE OF DISCRETION TO DENY SUCH REQUEST SINCE THERE IS NO EVIDENCE OF ANY DELIBERATE INTENT TO EXCLUDE INNOCEPT FROM THE COMPETITION AND AN ADEQUATE NUMBER OF PROPOSALS HAD BEEN DISTRIBUTED TO INSURE ADEQUATE COMPETITION.

REGARDING INNOCEPT'S ALLEGATION OF A PRE-SELECTED MAILING LIST FAVORING MINORITY-OWNED FIRMS, THE CONTRACTING AGENCY REPORTS THAT THE CONTRACTING OFFICER WAS FURNISHED A SUGGESTED SOURCE LIST OF 15 FIRMS, AND 24 SOLICITATIONS WERE TRANSMITTED TO FIRMS WHICH REQUESTED THEM AS A RESULT OF THE SYNOPSIS APPEARING IN THE CBD. THERE IS NOTHING IN THE RECORD TO INDICATE ANY BIAS IN SELECTING THE SUGGESTED SOURCE LIST FURNISHED THE CONTRACTING OFFICER.

CONCERNING THE ARGUMENT THAT THE CLOSING DATE FOR RECEIPT OF PROPOSAL REVISIONS SHOULD HAVE BEEN EXTENDED FOR INNOCEPT SINCE NEGOTIATIONS WERE NOT CONDUCTED WITH THAT FIRM UNTIL THE AFTERNOON OF THE LAST DAY OF THE TWO-DAY NEGOTIATION PERIOD, OUR OFFICE HAS OBJECTED TO "SEQUENTIAL" CUT- OFF DATES FOR THE PURPOSE OF PERMITTING RESPECTIVE OFFERORS EQUAL TIME TO REVISE PROPOSALS. WE HAVE TAKEN THE POSITION THAT THERE MUST BE A COMMON CUT-OFF DATE AS AN INCIDENT TO THE PROPER CLOSING OF NEGOTIATIONS. SEE B- 172836(2), SEPTEMBER 29, 1971; ALSO 50 COMP. GEN. 117, 124-125 (1970). FURTHERMORE, SINCE NEGOTIATIONS WERE CLOSED ON APRIL 11 AND REVISIONS WERE NOT REQUIRED UNTIL APRIL 16, WE SEE NO BASIS FOR CONCLUDING THAT INNOCEPT WAS THEREBY PREJUDICED.

CONCERNING THE CONTENTION THAT THE SOLICITATION FAVORED PRIOR OMBE CONTRACTORS, WE NOTE THAT "PRIOR EXPERIENCE" WAS THE MOST HEAVILY WEIGHTED OF ALL THE EVALUATION FACTORS. THE SUBCRITERIA PLACED EMPHASIS UPON THE EXTENT AND QUALITY OF PRIOR EXPERIENCE IN ASSESSING THE NEEDS OF, AND PROVIDING SERVICES FOR, MINORITY COMMUNITIES IN THE REGION TO BE SERVED. WE SEE NO BASIS FOR CONCLUDING THAT SUCH FACTOR WAS AN UNREASONABLE CONSIDERATION IN VIEW OF THE SERVICES BEING PROCURED. FURTHERMORE, WE FIND NO EVIDENCE IN THE RECORD TO SUGGEST THAT INNOCEPT'S PRIOR EXPERIENCE WAS NEGLECTED. TO THE CONTRARY, THE TECHNICAL EVALUATION SUMMARY SHEETS SET FORTH POSITIVE AND NEGATIVE FACTORS IN NARRATIVE SUMMARY FOR EACH OFFEROR, AND ONE OF INNOCEPT'S "POSITIVE FACTORS" WAS STATED AS FOLLOWS:

"THIS ORGANIZATION IS VERY AWARE OF SBA, 406 CONSULTING CONTRACTING PROCEDURE AND HAS DONE A VERY EXCELLENT JOB FOR SBA."

IN VIEW THEREOF, WE ARE UNABLE TO CONCLUDE THAT THE CONTRACTING AGENCY DISCRIMINATED AGAINST INNOCEPT BY OVERLOOKING OR DISREGARDING ITS SBA EXPERIENCE.

THERE APPEARS FROM THE RECORD TO BE A FACTUAL DISPUTE AS TO WHAT INNOCEPT WAS TOLD AT THE SEPTEMBER 4 DEBRIEFING CONFERENCE REGARDING THE ALLEGEDLY EXCESSIVE MAN-DAY ESTIMATES. THE CONTRACTING AGENCY SUBMITS THAT INNOCEPT MISUNDERSTOOD THE DISCUSSION; THAT THE AVERAGE OF 3 MAN-DAYS FOR BUSINESS EVALUATIONS WAS NOT DEEMED EXCESSIVELY HIGH; THAT WHILE SOME OFFERORS PROPOSED 2 MAN-DAYS, THE AVERAGE REQUIREMENT FOR ALL REGIONS WAS 3 MAN- DAYS; AND THAT THE FIRM SELECTED FOR AWARD PROPOSED AN AVERAGE OF 3 MAN- DAYS PER BUSINESS EVALUATION. INNOCEPT VEHEMENTLY DISPUTES THIS, CONTENDING THAT IT WAS TOLD THAT THE DIFFERENCES BETWEEN 3 AND 2 DAYS WAS "ONE OF THE MAIN DIFFERENCES IN COSTING."

OUR OFFICE, NOT BEING A PARTY TO THE DISCUSSION, IS NOT IN A POSITION TO ESTABLISH WHAT WAS REPRESENTED OR UNDERSTOOD TO BE REPRESENTED AT THE CONFERENCE. AS FOR INNOCEPT'S ARGUMENT THAT THE "DECISION *** TO USE 2, 3 OR ANY OTHER NUMBER OF DAYS" SHOULD HAVE BEEN CONVEYED TO ALL OFFERORS, AND AN OPPORTUNITY PROVIDED TO ADJUST THEIR COST PROPOSALS ACCORDINGLY, OUR REVIEW OF THE SOLICITATION REVEALS NO INDICATION OF ANY REQUIRED "LEVEL OF EFFORT" FOR BUSINESS EVALUATIONS THAT WOULD HAVE REQUIRED AMENDING THE SOLICITATION TO SET FORTH SPECIFIED MANNING LEVELS AS AN EVALUATION FACTOR. OFFERORS WERE FREE TO PROPOSE THE LEVEL OF EFFORT THEY DEEMED APPROPRIATE TO ACCOMPLISH THE JOB, AND THE EVALUATORS PROPERLY CONSIDERED THIS FACTOR AND ITS EFFECT ON BOTH PERFORMANCE AND COST.

FINALLY, WE HAVE REVIEWED THE TECHNICAL SCORING SHEET FOR REYES, AS WELL AS THOSE OF THE OTHER OFFERORS, AND THAT SCORING SHEET REVEALS THAT LIKE THE OTHER THREE OFFERS IN THE COMPETITIVE RANGE, REYES' TECHNICAL PROPOSAL WAS SCORED ON THE SAME EIGHT EVALUATION CATEGORIES AS SET OUT IN THE SOLICITATION, AND BY FIVE EVALUATORS ACTING INDIVIDUALLY ON EACH CATEGORY. WHILE REYES ADMITTEDLY FARED WELL, THERE IS NO BASIS IN THE RECORD FROM WHICH TO CONCLUDE THAT THE SCORING REFLECTED OTHER THAN BONA FIDE PROPOSAL STRENGTHS. THE MERE FACT THAT THERE WAS ONE NEGATIVE FACTOR WITH REGARD TO THE LACK OF "ACTUAL BUSINESS EXPERIENCE" OF THE MAJORITY OF PERSONNEL FOR WHOM RESUMES WERE SUBMITTED MUST BE BALANCED BY THE LISTING OF FIVE POSITIVE FACTORS, ONE OF WHICH STATED:

"THIS CONTRACTOR HAS A VERY HIGH QUALITY STAFF THAT HAS 10 YEARS OF EXPERIENCE IN WORKING WITH MINORITY BUSINESS."

IT IS NOT THE FUNCTION OF THIS OFFICE TO RESOLVE DISPUTES AS TO THE TECHNICAL MERITS OF A PARTICULAR PROPOSAL. SUCH DETERMINATIONS ARE MATTERS OF ADMINISTRATIVE JUDGMENT WHICH WE WILL NOT DISTURB ABSENT A CLEAR SHOWING THAT THE AGENCY ACTED ARBITRARILY OR UNREASONABLY. 52 COMP. GEN. 382, 385 (1972). FINDING NO SUCH MANIFESTATION IN THE INSTANT CASE, THERE IS NO BASIS FOR OUR OFFICE TO OBJECT TO THE SELECTION OF REYES.

ACCORDINGLY, THE PROTEST IS DENIED.