B-182469, JAN 6, 1975

B-182469: Jan 6, 1975

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THAT RFP SPECIFICATIONS WERE DRAFTED AROUND COMPETITOR'S SALES LITERATURE. IS NOT FOR CONSIDERATION ON MERITS WHERE NOT PROTESTED PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS. IS DENIED IN ABSENCE OF CLEAR SHOWING THAT PROPOSAL EVALUATION AND SUBSEQUENT REJECTION WAS ERRONEOUS OR ARBITRARY. 10603 WAS ISSUED AUGUST 28. THE RECORD SHOWS THAT FOUR PROPOSALS WERE RECEIVED ON SEPTEMBER 13. THAT AN AWARD WAS MADE TO SOFTWARE SCIENCES. WHICH WAS THE LOWEST PRICED OFFEROR. ADAMS' PROPOSAL WAS DETERMINED TECHNICALLY UNACCEPTABLE. OF WHICH 3 YEARS WERE UNDER OS/360 MVT/HASP. THE AGENCY STATES THAT THE DATA SYSTEMS SERVICE CONSIDERED PRACTICAL EXPERIENCE ON THE SPECIFIC EQUIPMENT ESSENTIAL TO ASSURE THAT INSTRUCTORS WERE SUFFICIENTLY AWARE OF OPERATING PROBLEMS WHICH WOULD BE ENCOUNTERED IN AN OS/MVT/HASP OPERATING ENVIRONMENT FOR WHICH SOLUTIONS DID NOT ALWAYS APPEAR IN THE PERTINENT MANUALS.

B-182469, JAN 6, 1975

1. PROTEST AGAINST INCLUSION OF EXPERIENCE REQUIREMENT IN RFP AS BEING RESTRICTIVE OF COMPETITION, AND THAT RFP SPECIFICATIONS WERE DRAFTED AROUND COMPETITOR'S SALES LITERATURE, IS NOT FOR CONSIDERATION ON MERITS WHERE NOT PROTESTED PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS. C.F.R. 20.2(A). 2. PROTEST BY UNSUCCESSFUL OFFEROR, WHO PROPOSED TO SUBSTITUTE "EQUIVALENT" MANAGERIAL AND PROFESSORIAL EXPERIENCE FOR EXPRESS REQUIREMENT OF RFP FOR STIPULATED PERIOD OF PRACTICAL OPERATING EXPERIENCE ON COMPUTERS, IS DENIED IN ABSENCE OF CLEAR SHOWING THAT PROPOSAL EVALUATION AND SUBSEQUENT REJECTION WAS ERRONEOUS OR ARBITRARY.

ADAMS ASSOCIATES:

REQUEST FOR PROPOSALS (RFP) 10602, 10603 WAS ISSUED AUGUST 28, 1974, BY THE U.S. GOVERNMENT PRINTING OFFICE (GPO), SOLICITING OFFERS TO PROVIDE "OS TRAINING FOR COMPUTER OPERATORS AND PROGRAMMERS" IN ACCORDANCE WITH ATTACHED SPECIFICATION REQUIREMENTS. THE RECORD SHOWS THAT FOUR PROPOSALS WERE RECEIVED ON SEPTEMBER 13, 1974, AND THAT AN AWARD WAS MADE TO SOFTWARE SCIENCES, THE SECOND LOWEST PRICED OFFEROR, ON OCTOBER 17, 1974, PRIOR TO THE PROTEST BY ADAMS, WHICH WAS THE LOWEST PRICED OFFEROR.

ADAMS' PROPOSAL WAS DETERMINED TECHNICALLY UNACCEPTABLE, FOLLOWING CLARIFICATION DISCUSSIONS ON OCTOBER 3, 1974, FOR FAILURE TO COMPLY WITH TWO STATED REQUIREMENTS OF THE RFP.

SECTION C, TECHNICAL REQUIREMENTS, REQUIRED A MINIMUM OF 5 YEARS OPERATING EXPERIENCE IN AN OS/360 MVT/HASP ENVIRONMENT FOR INSTRUCTORS FOR OPERATORS' TRAINING, AND A MINIMUM OF 5 YEARS PRACTICAL PROGRAMMING EXPERIENCE, OF WHICH 3 YEARS WERE UNDER OS/360 MVT/HASP, FOR INSTRUCTORS FOR PROGRAMMER/ANALYST TRAINING. THE AGENCY STATES THAT THE DATA SYSTEMS SERVICE CONSIDERED PRACTICAL EXPERIENCE ON THE SPECIFIC EQUIPMENT ESSENTIAL TO ASSURE THAT INSTRUCTORS WERE SUFFICIENTLY AWARE OF OPERATING PROBLEMS WHICH WOULD BE ENCOUNTERED IN AN OS/MVT/HASP OPERATING ENVIRONMENT FOR WHICH SOLUTIONS DID NOT ALWAYS APPEAR IN THE PERTINENT MANUALS. ON THE BASIS OF THE RESUMES OF PROPOSED INSTRUCTORS SUBMITTED WITH ADAMS' PROPOSAL, AND AFTER THE DISCUSSION BETWEEN ADAMS' REPRESENTATIVES AND GPO PERSONNEL ON OCTOBER 3, 1974, IT WAS DETERMINED THAT ADAMS DID NOT COMPLY WITH THE REFERENCED REQUIREMENTS AND THE PROPOSAL WAS REJECTED ACCORDINGLY.

ADAMS HAS PROTESTED THE DETERMINATION OF PROPOSAL UNACCEPTABILITY, CHARGING THE EXISTENCE OF BIAS AGAINST THE PROPOSED INSTRUCTORS BECAUSE THEIR PROFESSIONAL CREDENTIALS WERE CONSIDERED EXCESSIVELY ACADEMIC AND INSUFFICIENTLY PRACTICAL. IN THIS REGARD, IT IS CONTENDED THAT PRACTICAL EXPERIENCE, WHILE IMPORTANT AS AN EVALUATION FACTOR FOR INSTRUCTORS, "PALES IN SIGNIFICANCE" WHEN COMPARED WITH ACTUAL TEACHING EXPERIENCE. ACCORDINGLY, IT IS CONTENDED THAT GPO SHOULD HAVE ACCEPTED THE PROFESSIONAL EXPERIENCE OF DR. STONE AS AN OPERATIONS MANAGER AND INSTRUCTOR IN OPERATOR TRAINING AS "EQUIVALENT" TO THE TECHNICAL LEVEL EXPERIENCE REQUIREMENT SET FORTH IN THE RFP. OTHERWISE, IT IS CONTENDED THAT SUCH REQUIREMENT IS UNDULY RESTRICTIVE AND DISCRIMINATORY AGAINST QUALIFIED INSTRUCTORS HAVING ADVANCED DEGREES WHO WOULD NOT NORMALLY HAVE TAKEN TECHNICIAN-LEVEL EMPLOYMENT DURING THEIR CAREERS. FURTHER BIAS IS CHARGED TO GPO FOR FAILURE TO CONDUCT PERSONAL INTERVIEWS WITH THE PROPOSED INSTRUCTORS, OR TO CONDUCT SIMULATED TEACHING SESSIONS WHICH IT IS CONTENDED WOULD HAVE VALIDATED THE FACT THAT ADAMS POSSESSED THE REQUISITE PRACTICAL KNOWLEDGE TO CONDUCT THE CLASSES EFFECTIVELY. FINALLY, IT IS ALLEGED THAT THE SPECIFICATIONS OF THE RFP WERE ESSENTIALLY A VERBATIM COPY OF INFORMATION APPEARING IN SOFTWARE'S STANDARD SALES LITERATURE AND CATALOGUES, AND WERE BELOW ACCEPTABLE STANDARDS AND REQUIRED MAJOR CHANGES.

PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN A SOLICITATION WHICH ARE APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS MUST BE FILED PRIOR TO SUCH DATE. 4 C.F.R. 20.2(A). SINCE THERE IS NO EVIDENCE IN THE RECORD THAT ADAMS PROTESTED THE REQUIREMENTS CONCERNING INSTRUCTOR EXPERIENCE PRIOR TO THE SEPTEMBER 13 CLOSING DATE, BUT RATHER SUBMITTED A PROPOSAL OFFERING EXPERIENCE WHICH IT CONTENDS IS "EQUIVALENT" TO THOSE REQUIREMENTS, THIS ASPECT OF THE PROTEST IS UNTIMELY AND NOT FOR CONSIDERATION ON THE MERITS.

WITH REGARD TO THE CONTENTION OF BIAS IN THE EVALUATION OF THE CREDENTIALS OF THE PROPOSED INSTRUCTORS, WE HAVE EXAMINED THE RESUMES OF THE PERSONNEL IN QUESTION. WITH REGARD TO THE PROPOSED INSTRUCTOR FOR PROGRAMMERS/ANALYST TRAINING, THERE IS A DISPUTE AS TO WHETHER HE POSSESSED THE REQUISITE 5 YEARS OF "PRACTICAL PROGRAMMING EXPERIENCE." THIS MATTER WAS THE SUBJECT OF CLARIFICATION DISCUSSIONS AND WHILE THE AGENCY CONCLUDED THAT THE PROPOSED INSTRUCTOR DID NOT HAVE THE REQUISITE EXPERIENCE, ADAMS CONTENDS THAT THE INDIVIDUAL'S EXPERIENCE AS A PROGRAMMER IN A U.S. ARMY DATA PROCESSING CENTER IN VIETNAM IN 1967-68, PLUS ADDITIONAL EXPERIENCE AS A SYSTEMS ENGINEER WITH IBM IN 1966-67, AN ASSISTANT HEAD-INSTRUCTOR AT STRAYER COLLEGE 1969-70, A DATA PROCESSING MANAGER FOR A LOCAL CORPORATION, AND AS AN ASSISTANT PROFESSOR AT FEDERAL CITY COLLEGE MEETS THIS REQUIREMENT. BASED UPON OUR REVIEW OF THE PROPOSED INSTRUCTOR'S RESUME, WHILE HIS CREDENTIALS ARE IMPRESSIVE, THEY DO NOT INDICATE WITH ANY DEGREE OF CERTAINTY THAT THE RFP REQUIREMENT OF 5 YEARS OF PRACTICAL PROGRAMMING EXPERIENCE IS FULFILLED. RATHER, IT APPEARS THAT THE EXPERIENCE HAS BEEN PRIMARILY MANAGERIAL AND PROFESSORIAL. THEREFORE, WE ARE WITHOUT AN ADEQUATE BASIS TO CONCLUDE THAT GPO'S EVALUATION WAS CLEARLY ERRONEOUS OR ARBITRARY WITH REGARD TO THE PROPOSED INSTRUCTOR'S EXPERIENCE.

AS FOR THE PROPOSED INSTRUCTOR FOR OPERATOR TRAINING, IT IS CONTENDED THAT BY VIRTUE OF HIS SUPERVISORY EXPERIENCE AND "BACKGROUND IN THE MACHINE ROOM ENVIRONMENT," AND SUCCESSFUL TEACHING EXPERIENCE AT LOCAL INSTITUTIONS, SUCH EXPERIENCE SHOULD HAVE BEEN CONSIDERED THE "EQUIVALENT" OF OPERATING EXPERIENCE AT THE TECHNICAL LEVEL. SINCE IT IS WITHIN THE PREROGATIVE OF THE ADMINISTRATIVE AGENCY TO ESTABLISH THE QUALIFICATIONS FOR TECHNICAL ACCEPTABILITY, WE HAVE NO BASIS FOR CONCLUDING THAT "EQUIVALENT" EXPERIENCE SHOULD HAVE BEEN ACCEPTABLE. AS NOTED PREVIOUSLY, ANY DISAGREEMENT WITH THIS REQUIREMENT SHOULD HAVE BEEN MADE KNOWN PRIOR TO PROPOSAL SUBMISSION. ACCORDINGLY, WE CANNOT CONCLUDE THAT THE QUALIFICATIONS OF THIS PROPOSED INSTRUCTOR WERE NOT EVALUATED ACCORDING TO THE EXPRESS REQUIREMENTS OF THE RFP, OR THAT THE DETERMINATION OF GPO PERSONNEL THAT HE DID NOT MEET THE STIPULATED OPERATING EXPERIENCE REQUIREMENT WAS ARBITRARY OR CAPRICIOUS. IN THE ABSENCE OF A CLEAR SHOWING OF ARBITRARINESS, OUR OFFICE WILL NOT DISTURB AN AGENCY'S JUDGMENT OF WHETHER OR NOT A PROPOSAL IS TECHNICALLY ACCEPTABLE. 52 COMP. GEN. 382, 385 (1972). FURTHERMORE, IN THE ABSENCE OF AN APPROPRIATE PROVISION IN THE RFP, WE DO NOT BELIEVE IT INCUMBENT UPON THE AGENCY TO HAVE CONDUCTED PERSONAL INTERVIEWS AND/OR SIMULATED TEACHING SESSIONS TO DETERMINE WHETHER THE PROPOSED INSTRUCTORS POSSESSED "THE PRACTICAL KNOWLEDGE NECESSARY TO CONDUCT THE CLASSES EFFECTIVELY."

WITH REGARD TO THE ALLEGATION THAT THE SPECIFICATIONS WERE DRAFTED UPON THE BASIS OF SOFTWARE'S SALES BROCHURES AND CATALOGUES, GPO REPORTS THAT THE SOLICITATION FOLLOWED THE SOFTWARE MANUAL TO A DEGREE BUT WAS MODIFIED TO MEET AGENCY NEEDS.

OUR REVIEW OF THE RECORD INDICATES THAT ADAMS FIRST RAISED THIS MATTER IN THE COURSE OF THE CLARIFICATION DISCUSSIONS OF OCTOBER 3, 1974, AT WHICH TIME ADAMS PERSONNEL PRODUCED THE SOFTWARE SALES LITERATURE AND DEMONSTRATED THIS POINT WITH RESPECT TO A PORTION OF THE SPECIFICATIONS IN THE RFP. SINCE IT APPEARS FROM THE RECORD THAT ADAMS PERSONNEL WERE COGNIZANT OF THIS MATTER PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS, BUT FAILED TO PROTEST THE ALLEGED IMPROPRIETY PRIOR THERETO, THIS ASPECT OF THE PROTEST IS UNTIMELY. NEVERTHELESS, WE NOTE THAT THIS ALLEGED IMPROPRIETY HAD NO AFFECT ON ADAMS' TECHNICAL UNACCEPTABILITY, AND ADAMS HAS ACKNOWLEDGED THAT SUCH ALLEGED IMPROPRIETY DID NOT PREVENT IT FROM SUBMITTING A COMPETITIVE PROPOSAL.

ON THE BASIS OF THE FOREGOING, THE PROTEST IS DENIED.