B-182765, APR 8, 1975

B-182765: Apr 8, 1975

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PROCURING ACTIVITY'S DETERMINATION THAT PROTESTER'S PROPOSAL WAS NOT WITHIN COMPETITIVE RANGE WAS PROPER WHERE RECORD INDICATES THAT PROPOSAL WAS NOT REASONABLY SUSCEPTIBLE OF BEING MADE TECHNICALLY ACCEPTABLE THROUGH DISCUSSIONS WITHOUT MAJOR REVISION. 2. PROTEST AFTER SELECTION OF SUCCESSFUL OFFEROR BASED UPON FAILURE OF AGENCY TO INITIATE SMALL BUSINESS SET-ASIDE UNDER SECTION 8(A) OF SMALL BUSINESS ACT AND CONTENTION THAT OFFEROR WAS MISLED BECAUSE SOLICITATION DID NOT CONTAIN SUFFICIENT INFORMATION FOR PROPER PROPOSAL FORMULATION IS UNTIMELY AND NOT FOR CONSIDERATION ON MERITS SINCE UNDER 4 C.F.R. 20.2(A) PROTEST BASED UPON ALLEGED IMPROPRIETIES IN SOLICITATION WHICH ARE APPARENT PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS MUST BE FILED PRIOR THERETO.

B-182765, APR 8, 1975

1. PROCURING ACTIVITY'S DETERMINATION THAT PROTESTER'S PROPOSAL WAS NOT WITHIN COMPETITIVE RANGE WAS PROPER WHERE RECORD INDICATES THAT PROPOSAL WAS NOT REASONABLY SUSCEPTIBLE OF BEING MADE TECHNICALLY ACCEPTABLE THROUGH DISCUSSIONS WITHOUT MAJOR REVISION. 2. PROTEST AFTER SELECTION OF SUCCESSFUL OFFEROR BASED UPON FAILURE OF AGENCY TO INITIATE SMALL BUSINESS SET-ASIDE UNDER SECTION 8(A) OF SMALL BUSINESS ACT AND CONTENTION THAT OFFEROR WAS MISLED BECAUSE SOLICITATION DID NOT CONTAIN SUFFICIENT INFORMATION FOR PROPER PROPOSAL FORMULATION IS UNTIMELY AND NOT FOR CONSIDERATION ON MERITS SINCE UNDER 4 C.F.R. 20.2(A) PROTEST BASED UPON ALLEGED IMPROPRIETIES IN SOLICITATION WHICH ARE APPARENT PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS MUST BE FILED PRIOR THERETO.

SANITOR BUILDING MAINTENANCE:

ON SEPTEMBER 20, 1974, REQUEST FOR PROPOSALS (RFP) NO. 9-BB52-58-5 4P, A TOTAL SMALL BUSINESS SET-ASIDE, WAS ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), JOHNSON SPACE CENTER (JSC), HOUSTON, TEXAS. THE RFP SOLICITED COST-PLUS-FIXED-FEE PROPOSALS FOR FURNISHING CUSTODIAL SUPPORT SERVICES AT THE CENTER AND SELECTED BUILDINGS AT ELLINGTON AIR FORCE BASE FOR THE PERIOD JANUARY 1, 1975, THROUGH DECEMBER 31, 1975, WITH A PROVISION FOR NEGOTIATION OF AS MANY AS TWO SUCCESSIVE ONE-YEAR EXTENSIONS. THE CLOSING DATE FOR SUBMISSION OF PROPOSALS WAS SET FOR OCTOBER 21, 1974, AND SANITOR BUILDING MAINTENANCE (SANITOR) WAS ONE OF SIX FIRMS THAT SUBMITTED A PROPOSAL.

THE PROPOSALS WERE FORWARDED TO A SOURCE EVALUATION BOARD (SEB) FOR EVALUATION AGAINST THE CRITERIA SET FORTH IN THE SOLICITATION. THE SEB CONCLUDED THAT THE PROPOSAL SUBMITTED BY SANITOR WAS UNACCEPTABLE FROM A TECHNICAL VIEWPOINT BECAUSE IT CONTAINED BASIC SUBSTANTIVE DEFICIENCIES. THE CONTRACTING OFFICER'S LETTER OF NOVEMBER 21, 1974, ADVISING SANITOR THAT ITS PROPOSAL WAS DETERMINED UNACCEPTABLE AND NOT WITHIN THE COMPETITIVE RANGE FOR PURPOSES OF NEGOTIATIONS, DESCRIBED THE PRINCIPAL AREAS IN WHICH THE PROPOSAL WAS CONSIDERED DEFICIENT. NASA REPORTS THAT SANITOR'S WEAKNESSES WERE OF SUCH A NATURE THAT ITS PROPOSAL HAD NO POTENTIAL FOR SIGNIFICANT IMPROVEMENT OR CHANCE FOR EVENTUAL AWARD SELECTION WITHOUT MAJOR REVISIONS.

IN A LETTER DATED NOVEMBER 25, 1974, SANITOR PROTESTED THE REJECTION OF ITS PROPOSAL. SANITOR CONTENDS THAT ITS PROPOSAL WAS REJECTED ON THE BASIS OF "CONCOCTED PETTY REASONS" AND THAT IT SHOULD HAVE BEEN ADVISED OF ANY DEFICIENCIES IN ITS PROPOSAL OR REQUESTED TO SUBMIT ADDITIONAL INFORMATION PRIOR TO RECEIVING THE CONTRACTING OFFICER'S NOTICE OF REJECTION. THE PROTESTER FURTHER ALLEGES THAT THE RFP PROVIDED INSUFFICIENT INFORMATION TO INTELLIGENTLY PREPARE A PROPOSAL AND, SPECIFICALLY, "NO INFORMATION WAS PROVIDED TO HELP DETERMINE ESTIMATES OR EXISTING MANPOWER DEMANDS AS RELATED TO ASSIGNMENTS OF CURRENT PERSONNEL, UNION MEMBERSHIP, ETC." FINALLY, SANITOR QUESTIONS THE DETERMINATION TO CONDUCT THE PROCUREMENT AS A TOTAL SMALL BUSINESS SET-ASIDE RATHER THAN UNDER THE SMALL BUSINESS ADMINISTRATION'S SECTION 8(A) CONTRACT PROGRAM. IN THIS REGARD, THE PROTESTER ALLEGES THAT MOST OF THE MINORITY AND SMALL BUSINESS CONTRACTORS INVITED TO PARTICIPATE IN THE PROCUREMENT WERE "USED" AND IMPROPERLY ELIMINATED FROM COMPETITION PRIOR TO FULL NEGOTIATIONS, AND THAT THE RFP WAS DESIGNED TO FAVOR ONE FIRM.

IN CONTRAST TO THE GENERAL ALLEGATIONS MADE BY THE PROTESTER, NASA, IN ITS ADMINISTRATIVE REPORT OF MARCH 5, 1975, FURNISHED OUR OFFICE A DETAILED REPORT, INCLUDING THE SEB'S EVALUATION OF THE SANITOR PROPOSAL, TO SUPPORT ITS DETERMINATION THAT SANITOR WAS NOT WITHIN THE COMPETITIVE RANGE. THE FOLLOWING NARRATIVE DESCRIPTION OF THE STRENGTH AND WEAKNESSES OF THE SANITOR PROPOSAL IS A SUMMARY OF THE SEB'S FINDINGS WHICH WAS ENCLOSED WITH THE CONTRACTING OFFICER'S LETTER OF NOVEMBER 21, 1974 TO SANITOR:

"THE ORGANIZATION PLAN SUBMITTED FOR THE REQUIREMENT WAS ADEQUATE IN THAT IT DEPICTED THE APPOINTMENT OF SUFFICIENT MANAGEMENT PERSONNEL TO PROPERLY ADMINISTER THE CONTRACT EFFORT. A SPECIFIC STRENGTH OF THIS ORGANIZATION PLAN IS THE ASSIGNMENT OF AREA FOREMEN BY FUNCTIONAL RESPONSIBILITY AND THE BALANCED ASSIGNMENT OF THE TWO PROPOSED SUPERINTENDENTS. HOWEVER, IT WAS NOT CLEAR WHETHER OR NOT THE PROJECT MANAGER HAS AUTONOMOUS CONTRACT AUTHORITY SINCE YOUR PROPOSAL STATES THAT VOUCHERS, STATUS REPORTS, AND OFFICIAL CORRESPONDENCE WILL BE SUBMITTED THROUGH THE SANITOR HOME OFFICE. THE PLAN SUBMITTED FOR ACTUAL ACCOMPLISHMENT OF THE WORK WAS VAGUE, AND, ON OCCASION, CERTAIN REQUIREMENTS OF THE RFP WERE NOT ADDRESSED AT ALL. THE PLAN FAILED TO BREAK OUT ASSIGNMENTS OF WORK FOR AREA FOREMEN, WORK LEADERS, AND SERVICE WORKERS TO SPECIFIC GEOGRAPHICAL AREAS OF RESPONSIBILITY. THIS WAS ONE OF THE REQUIREMENTS OF THE RFP (SPECIFIC INSTRUCTIONS, PARAGRAPH F.1.F.), AND WAS IN THE OPINION OF THE BOARD, INSTRUMENTAL TO INSURE EFFICIENT WORK FLOW. THE PLAN DID NOT ADDRESS THE RFP REQUIREMENT TO PROVIDE A DISCUSSION OF WORKING RELATIONSHIPS AND MANAGEMENT CONTROL TECHNIQUES FOR MAINTAINING CONTRACT INTERFACE WITHIN YOUR ORGANIZATION, JSC, AND OTHER APPROPRIATE REGULATORY AGENCIES. THE PLAN SUBMITTED FOR ASSURING QUALITY OF WORKMANSHIP IDENTIFIES AUTHORITIES AND RESPONSIBILITIES; HOWEVER, LITTLE DETAIL IS PROVIDED REGARDING ACTUAL INSPECTION METHODS AND DOCUMENTATION. KEY PERSONNEL PROPOSED HAVE STRONG BACKGROUNDS AND PAST PERFORMANCE IN THEIR CURRENT RESPECTIVE FIELDS IS CREDITABLE; HOWEVER, THEIR EXPERIENCE AND OVERALL CAPABILITY RELEVANT TO A CUSTODIAL EFFORT IS CONSIDERED INAPPROPRIATE. FURTHER, NONE OF THE RESUMES SUBMITTED INDICATE THAT THE INDIVIDUAL HAS BEEN CONTACTED AND IS COMMITTED TO THE POSITION PROPOSED. ONLY LIMITED MAJOR EQUIPMENT IS ON HAND WITHIN YOUR COMPANY. ACQUISITION DATA FOR EQUIPMENT TO BE PURCHASED IS EXTREMELY SKETCHY (I.E., NO VENDOR DATA OR DELIVERY DATES). ALTHOUGH YOUR PROPOSAL STATES THAT DIRECT LABOR REQUIREMENTS WILL BE MET THROUGH EXISTING MANPOWER, NO PRECONTRACT EMPLOYMENT ACTIVITIES WERE DISCUSSED WHICH WOULD FURTHER DEMONSTRATE YOUR COMPANY'S ABILITY TO ACCOMPLISH THIS RECRUITMENT STATEMENT. YOUR PROPOSED ESTIMATED COST AND FEE WAS SIGNIFICANTLY HIGHER THAN THE LOWEST COST PROPOSAL RECEIVED."

IT APPEARS FROM THE RECORD THAT THE PROPOSAL WAS EVALUATED IN ACCORDANCE WITH THE SPECIFICATIONS AND THE STATED EVALUATION CRITERIA, AND WAS FOUND TO BE TECHNICALLY UNACCEPTABLE AND NOT REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE WITHOUT MAJOR REVISIONS ON THE BASIS OF A COMPREHENSIVE EVALUATION, SUPPORTED BY A 15 PAGE DETAILING OF SPECIFIC DEFICIENCIES. A RESULT OF THE EVALUATION OF ALL PROPOSALS, THE TWO PROPOSALS DETERMINED WITHIN THE COMPETITIVE RANGE RECEIVED SCORES OF 942 AND 906 OUT OF A POSSIBLE 1000, AS COMPARED TO SANITOR'S SCORE OF 483. IN ADDITION, SANITOR'S COST PROPOSAL, AS EVALUATED, WAS THE SECOND HIGHEST. WE SEE NOTHING IN THE RECORD WHICH INDICATES THAT THIS EVALUATION WAS IMPROPER OR UNFAIR OR THAT THE CONTRACTING AGENCY ABUSED ITS DISCRETION IN FINDING THE SANITOR PROPOSAL UNACCEPTABLE AND NOT WITHIN THE COMPETITIVE RANGE. WHILE SANITOR OBVIOUSLY DOES NOT AGREE WITH THE SEB'S EVALUATION OF ITS PROPOSAL, THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE REJECTION OF THE SANITOR PROPOSAL WAS THE RESULT OF ANYTHING OTHER THAN THE REASONABLE JUDGMENT OF NASA'S EVALUATORS. WE DO NOT BELIEVE IT IS APPROPRIATE FOR THIS OFFICE TO QUESTION NASA'S TECHNICAL JUDGMENT WHEN THE JUDGMENT HAS A REASONABLE BASIS MERELY BECAUSE THERE MAY BE DIVERGENT OPINIONS AS TO THE ACCEPTABILITY OF A PROPOSAL. THEREFORE, SINCE WE ARE UNABLE TO CONCLUDE ON THE RECORD BEFORE US THAT THE SANITOR PROPOSAL WAS READILY SUSCEPTIBLE OF BEING MADE ACCEPTABLE THROUGH DISCUSSIONS, NASA WAS UNDER NO OBLIGATION TO ENTER INTO DISCUSSIONS WITH THE PROTESTER. 52 COMP. GEN. 382 (1972).

FURTHERMORE, CONCERNING THE PROTESTER'S ALLEGATION THAT MOST OF THE MINORITY AND SMALL BUSINESS CONTRACTORS INVITED TO PARTICIPATE IN THE PROCUREMENT WERE "USED" AND THAT THE PROCUREMENT WAS DESIGNED FOR A PARTICULAR CONTRACTOR, WE ARE UNABLE TO CONCLUDE FROM THE RECORD THAT THE EVALUATION PROCESS WAS PREJUDICIAL TO ANY OFFEROR OR THAT THE ELIMINATION FROM AWARD CONSIDERATION OF ANY PROPOSAL WAS THE RESULT OF BAD FAITH OR PREFERENTIAL TREATMENT ON THE PART OF THE CONTRACTING OFFICER OR OTHER NASA PERSONNEL. IN THIS CONNECTION, WE NOTE THAT THE PROTESTER HAS NOT SUBMITTED ANY PROBATIVE EVIDENCE TO CONTROVERT THE ADMINISTRATIVE POSITION THAT THE PROCUREMENT WAS CONDUCTED IN A COMPETITIVE ENVIRONMENT, AND THAT NO OFFEROR RECEIVED FAVORED TREATMENT EITHER IN ESTABLISHING THE SOLICITATION'S REQUIREMENTS OR IN THE CONDUCT OF THE EVALUATION.

REGARDING THE PROTESTER'S OBJECTION TO THE DETERMINATION OF THE PROCURING ACTIVITY NOT TO CONDUCT THE SUBJECT PROCUREMENT UNDER THE SBA SECTION 8(A) PROGRAM, SANITOR'S FAILURE TO RAISE THIS POINT OF PROTEST PRIOR TO THE DATE SET FOR RECEIPT OF PROPOSALS RENDERS THIS PORTION OF THE PROTEST UNTIMELY AND NOT FOR CONSIDERATION BY OUR OFFICE UNDER SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 C.F.R. 20.2(A)) WHICH REQUIRES IN PERTINENT PART THAT PROTESTS MUST BE FILED PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS WHEN THE PROTEST, AS HERE, CONCERNS MATTERS APPARENT BEFORE THE CLOSING DATE. HOWEVER, SECTION 8(A) OF THE SMALL BUSINESS ACT (15 U.S.C. 637(A) (1970)) AUTHORIZES THE SBA TO ENTER INTO CONTRACTS WITH THE GOVERNMENT AGENCY HAVING PROCUREMENT POWERS, AND THE CONTRACTING OFFICER OF SUCH AGENCY IS AUTHORIZED "IN HIS DISCRETION" TO LET THE CONTRACT TO SBA UPON SUCH TERMS AND CONDITIONS AS MAY BE AGREED UPON BETWEEN SBA AND THE PROCURING AGENCY. IT IS CLEAR, THEREFORE, THAT THE DETERMINATION TO INITIATE A SET-ASIDE UNDER SECTION 8(A) IS A MATTER WITHIN THE SOUND DISCRETION OF THE SBA AND THE CONTRACTING AGENCY, MATTER OF ALPINE AIRCRAFT CHARTERS, INC., B-179669, MARCH 13, 1974, AND SUCH ACTION WAS CONSIDERED BY THE TWO AGENCIES AND REJECTED.

FINALLY, SANITOR'S CONTENTION THAT IT WAS MISLED IN THE PREPARATION OF ITS PROPOSAL BECAUSE THE INFORMATION IN THE SOLICITATION WAS INSUFFICIENT FOR PROPER PROPOSAL FORMULATION INVOLVES A DEFECT APPARENT IN THE SOLICITATION PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS AND, SINCE THE PROTEST WAS FILED AFTER THE EVALUATION OF PROPOSALS, WE ALSO CONSIDER THIS ASPECT OF THE PROTEST UNTIMELY. NEVERTHELESS, WE NOTE THAT THE SPECIFIC DEFICIENCY REFERRED TO REGARDING MANPOWER REQUIREMENTS DOES NOT SEEM TO BE WELL TAKEN SINCE THE RFP INCLUDED SPECIFIC INFORMATION SUCH AS LABOR CLASSIFICATION, MANHOURS REQUIRED, PERSONNEL CURRENTLY COVERED BY UNION AGREEMENT, AND THE APPLICABLE WAGE DETERMINATION.

FOR THE FOREGOING REASONS, THE PROTEST IS DENIED.