B-182823, APR 29, 1975

B-182823: Apr 29, 1975

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REJECTION OF PROTESTER'S TECHNICAL PROPOSAL AS NOT WITHIN COMPETITIVE RANGE FOR PURPOSES OF NEGOTIATIONS IS PROPER. NOTWITHSTANDING FACT PROTESTER IS INCUMBENT CONTRACTOR AND OTHER ACCEPTABLE OFFERORS PROPOSED TO EMPLOY MEMBERS OF ITS CURRENT STAFF. SINCE SCOPE OF INSTANT CONTRACT IS GREATER THAN PRIOR CONTRACT. NOTWITHSTANDING FACT THAT GSA FORM 2068 WAS NOT UTILIZED OR AN EXEMPTION GRANTED. 3. IT IS RESPONSIBILITY OF AGENCY TO EVALUATE PROPOSALS TO INSURE THAT ULTIMATE AWARD REPRESENTS LOWEST COST TO GOVERNMENT. REGULATION CITED BY PROTESTER AS REQUIRING DEFINITIVE JUSTIFICATION BY GSA THAT AGENCY PROCUREMENT WILL ENSURE ECONOMY AND EFFICIENCY IS NOT APPLICABLE WHERE ONLY ADP SERVICES ARE INVOLVED. 4.

B-182823, APR 29, 1975

1. REJECTION OF PROTESTER'S TECHNICAL PROPOSAL AS NOT WITHIN COMPETITIVE RANGE FOR PURPOSES OF NEGOTIATIONS IS PROPER, NOTWITHSTANDING FACT PROTESTER IS INCUMBENT CONTRACTOR AND OTHER ACCEPTABLE OFFERORS PROPOSED TO EMPLOY MEMBERS OF ITS CURRENT STAFF, SINCE SCOPE OF INSTANT CONTRACT IS GREATER THAN PRIOR CONTRACT, PROPOSAL RECEIVED RELATIVELY LOW SCORE ON THE TECHNICAL EVALUATION IN COMPARISON TO ARRAY OF SCORES ACHIEVED BY OTHER OFFERORS AND EVIDENCE OF RECORD PROVIDES REASONABLE BASIS FOR EVALUATION PANEL'S DETERMINATION OF UNACCEPTABILITY. MOREOVER, UNACCEPTABLE PROPOSAL MAY BE EXCLUDED FROM COMPETITIVE RANGE WITHOUT REGARD TO SUCH OFFEROR'S LOWER ESTIMATED COSTS. 2. GSA'S LETTER AUTHORIZING PROCURING ACTIVITY TO PROCEED WITH COMPETITIVE PROCUREMENT FOR DESIRED ADP SERVICES ISSUED ON BASIS OF ACTIVITY'S REPRESENTATION THAT DIRECT CONTRACT WITH COMMERCIAL SOURCE WOULD RESULT IN LOWEST OVERALL COST TO GOVERNMENT, SATISFIED IN SUBSTANCE, IF NOT IN FORM, ADP SHARING PROCEDURES, NOTWITHSTANDING FACT THAT GSA FORM 2068 WAS NOT UTILIZED OR AN EXEMPTION GRANTED. 3. WHERE GSA ASSENTS TO PROCUREMENT BY ANOTHER AGENCY FOR ADP SERVICES FROM COMMERCIAL SOURCE ON BASIS OF REPRESENTATION THAT IT COULD OBTAIN SUCH SERVICES FROM COMMERCIAL SOURCE FOR CONSIDERABLY LESS THAN GSA'S BILLING RATES, IT IS RESPONSIBILITY OF AGENCY TO EVALUATE PROPOSALS TO INSURE THAT ULTIMATE AWARD REPRESENTS LOWEST COST TO GOVERNMENT. REGULATION CITED BY PROTESTER AS REQUIRING DEFINITIVE JUSTIFICATION BY GSA THAT AGENCY PROCUREMENT WILL ENSURE ECONOMY AND EFFICIENCY IS NOT APPLICABLE WHERE ONLY ADP SERVICES ARE INVOLVED. 4. PROTESTER'S ALLEGATION THAT CONTRACT AWARD PRIOR TO RESOLUTION OF PROTEST WAS CONTRARY TO GAO INTERIM BID PROTEST PROCEDURES AND STANDARDS IS WITHOUT MERIT, SINCE ASSISTANT ADMINISTRATOR OF EPA ISSUED, PRIOR TO AWARD, A WRITTEN FINDING SPECIFYING FACTORS NOT PERMITTING DELAY IN AWARD AND GAO WAS TELEPHONICALLY ADVISED THEREOF PRIOR TO AWARD BUT DID NOT RECEIVE MAILED COPY UNTIL FEW DAYS THEREAFTER. AGENCY SUBSTANTIALLY COMPLIED WITH SPIRIT OF PROCEDURES AND, IN ANY EVENT, GAO HAS NO AUTHORITY TO REGULATE WITHHOLDING OF AWARD.

POTOMAC RESEARCH INCORPORATED:

POTOMAC RESEARCH INCORPORATED (POTOMAC) HAS FILED A PROTEST UNDER REQUEST FOR PROPOSALS (RFP) DU-75-B029, ISSUED BY THE ENVIRONMENTAL PROTECTION AGENCY (EPA), FOR OFF-SITE COMPUTER PROGRAMMING AND DATA REDUCTION SERVICES IN SUPPORT OF THE COMMUNITY HEALTH AND ENVIRONMENTAL SURVEILLANCE STUDIES (CHESS) PROGRAM DATA BASE. ESSENTIALLY THE FIRM OBJECTS TO THE DETERMINATION THAT ITS TECHNICAL PROPOSAL WAS UNACCEPTABLE AND TO THE AGENCY'S REFUSAL TO NEGOTIATE WITH THE FIRM. IT FURTHER ARGUES THAT EPA HAS FAILED TO OBTAIN VALID AUTHORIZATION FROM THE GENERAL SERVICES ADMINISTRATION (GSA) TO PROCEED WITH THE PROCUREMENT.

THE RECORD INDICATES THAT SINCE DECEMBER 1972, GSA HAS PROVIDED THE REQUISITE SYSTEMS ANALYSIS, COMPUTER AND DATA PROCESSING SUPPORT FOR THE CHESS DATA BASE UNDER AN ARRANGEMENT WITH EPA. THE PROTESTER PROVIDED THE CHESS SUPPORT AT EPA'S FACILITY DURING NOVEMBER AND DECEMBER 1974 UNDER CONTRACT WITH GSA. HOWEVER, AFTER BEING ADVISED BY GSA IN JULY 1974, OF THE INCREASES IN GSA'S RATES TO BE CHARGED FOR THE SUPPORT SERVICES, EPA CONCLUDED THAT OFF-SITE SERVICES USING GOVERNMENT FURNISHED EQUIPMENT COULD BE SECURED AT A CONSIDERABLE SAVINGS BY DIRECTLY CONTRACTING WITH A COMMERCIAL SOURCE.

THE RFP CONTEMPLATED AWARD OF A COST-PLUS-FIXED-FEE CONTRACT. OFFERORS WERE REQUESTED TO SUBMIT A COMPLETE TECHNICAL PROPOSAL AND A PRICE OR COST BREAKDOWN. OFFERS WERE RECEIVED FROM TEN FIRMS, INCLUDING POTOMAC. EACH TECHNICAL PROPOSAL WAS EVALUATED AGAINST CRITERIA ESTABLISHED IN THE RFP AND RANKED BY A TECHNICAL EVALUATION PANEL. NUMERICAL WEIGHTING FACTORS WERE ASSIGNED TO EACH OF THE CRITERIA USED IN THE EVALUATION OF THE TECHNICAL PROPOSALS.

ON DECEMBER 6, 1974, THE PANEL REVIEWED THE RESULTS OF THE INDIVIDUAL EVALUATIONS AND ARRIVED AT A MEAN AVERAGE NUMERICAL SCORE FOR EACH OF THE RESPECTIVE PROPOSALS. EACH PROPOSAL WAS SCORED ON A SCALE OF 0-100 AND ASSIGNED AN ADJECTIVE RATING AS FOLLOWS:

PROPOSER EVAL. SCORE ADJECTIVE RATING

PLANNING RES. 84.5 ACCEPTABLE

C.S.C. 82. ACCEPTABLE

D.P. ASSOC. 80. ACCEPTABLE

SPERRY UNIVAC 80. ACCEPTABLE

SDC/ISSI 76.25 ACCEPTABLE

SYSTEMS SCIENCES 63.5 UNACCEPTABLE

GEN. TEL. & 57.5 UNACCEPTABLE

ELECTRONICS

POTOMAC 56.75 UNACCEPTABLE

RAYCOMM 47. UNACCEPTABLE

ROCKWELL 42.75 UNACCEPTABLE

BASED ON THE RESULTS OF THE EVALUATION PANEL, THE CONTRACTING OFFICER DETERMINED THAT THE TOP FIVE PROPOSALS WERE IN THE COMPETITIVE RANGE OF ACCEPTABILITY. THE RECORD INDICATES THAT NEGOTIATIONS WERE CONDUCTED WITH EACH OF THE FIVE OFFERORS CONSIDERED TO BE WITHIN THE COMPETITIVE RANGE AND BEST AND FINAL OFFERS WERE REQUESTED AND RECEIVED. ON THE BASIS OF THESE DISCUSSIONS, AND THE RECOMMENDATION OF ITS TECHNICAL REVIEW COMMITTEE, EPA CONCLUDED THAT IT WAS IN THE BEST INTERESTS OF THE GOVERNMENT TO MAKE AWARD TO SPERRY UNIVAC.

THE PROTESTER CONTENDS THAT IT SHOULD HAVE BEEN CONSIDERED TO BE WITHIN THE COMPETITIVE RANGE. IN THIS CONNECTION, POTOMAC REFERS TO THE STATEMENT IN THE SOLICITATION THAT A NEW CONTRACTOR SHOULD ATTEMPT TO RETAIN AS MANY OF THE EXISTING STAFF AS POSSIBLE. SINCE OTHER OFFERORS PROPOSED TO EMPLOY MEMBERS OF POTOMAC'S STAFF AND WERE CONSIDERED TO BE WITHIN THE COMPETITIVE RANGE, IT IS ARGUED THAT POTOMAC, AS THE INCUMBENT CONTRACTOR, SHOULD HAVE BEEN AFFORDED AN OPPORTUNITY TO NEGOTIATE AND UPGRADE ITS PROPOSAL. IN ADDITION, POTOMAC CONTENDS THAT ITS ESTIMATED COST WAS BELOW THAT OF OTHER ACCEPTABLE PROPOSALS WHICH OFFERED TO UTILIZE MEMBERS OF ITS STAFF AND THAT THIS FACT SHOULD HAVE CAUSED THE CONTRACTING OFFICER TO NEGOTIATE WITH POTOMAC.

THE FOLLOWING NARRATIVE DESCRIPTION OF THE DEFICIENCIES AND WEAKNESSES OF THE POTOMAC TECHNICAL PROPOSAL WAS PROVIDED BY THE EPA EVALUATION PANEL TO SUPPORT THE TECHNICAL EVALUATION SCORING AND THE DETERMINATION THAT POTOMAC WAS NOT WITHIN THE COMPETITIVE RANGE:

"POTOMAC RESEARCH, INCORPORATED HAS PROPOSED (NAME DELETED) AS THE PROGRAM MANAGER FOR THIS CONTRACT. NEITHER (NAME DELETED) BACKGROUND NOR EXPERIENCE QUALIFIES HIM TO MANAGE AN EFFORT OF THIS NATURE AND SIZE. PARTICULAR, HE HAS NO EXPERIENCE IN THE MANAGEMENT OF AN INTEGRATED DATA PROCESSING EFFORT INVOLVING LARGE-SCALE SYSTEMS DESIGN, PROGRAMMING AND PRODUCTION ACTIVITIES.

"THE EVALUATION AND EXPERIENCE OF THE PROGRAMMING AND SYSTEMS ANALYSIS PERSONNEL ARE NOT ADEQUATE FOR THE LEVEL OF WORK CONTEMPLATED BY THIS PROCUREMENT. SPECIFICALLY, THE PROPOSAL USES THE FOLLOWING LANGUAGE ON PAGE 2-2:

"... THE STRUCTURE OF A DATA BASE INCLUDING THE ORGANIZATION OF DATA ELEMENTS INTO RECORDS-RECORDS TO FILES AND FILES INTO HIERARCHICALLY STRUCTURED DATA BASES REQUIRES SPECIAL AND EXPERIENCED DESIGN PERSONNEL AS DO PROCESSING METHODS FOR DATA BASE CONSTRUCTION AND MODIFICATION ...

"DESPITE THIS STATEMENT IN THE PROPOSAL, NONE OF THE PROPOSED PERSONNEL MEASURE UP TO THE ADJECTIVES 'SPECIAL' AND 'EXPERIENCED.'

"OF THE THREE DATA CLERK SUPERVISORS PROPOSED BY POTOMAC RESEARCH INCORPORATED, EPA CONSIDERS ONLY ONE (NAME DELETED) TO BE OF THE CALIBER NECESSARY TO MANAGE PRODUCTION AND DATA CLINICAL EFFORTS ANTICIPATED BY THIS PROCUREMENT.

"THE PROPOSED ORGANIZATION STRUCTURE IS THAT OF THE INCUMBENT CONTRACTOR. IT DOES NOT RECOGNIZE THE NEED FOR OVERALL DIRECTION OF THE PRODUCTION AND DATA CLERICAL EFFORTS. NOR DOES IT EFFECTIVELY ABSORB THE INCREASED REQUIREMENTS OF SYSTEMS ANALYSIS AND DESIGN. ALL INTERGRATION OF THE WORK EFFORT IS REQUIRED TO BE DONE AT THE PROGRAM MANAGER LEVEL, A SITUATION WHICH ACCENTUATES OUR COMMENTS ABOUT THE LACK OF EXPERIENCE OF (NAME DELETED).

"ON PAGE 2-4 THE PROPOSAL DISCUSSES A SEPARATE QUALITY CONTROL FUNCTION BUT THE PROPOSED ORGANIZATION DOES NOT REFLECT THIS INTENT. THIS OBSERVATION LEADS TO THE CONCLUSION THAT THE REQUIREMENTS OF THIS PROCUREMENT HAVE NOT BEEN SERIOUSLY ADDRESSED BY THE PROPOSAL OF POTOMAC RESEARCH INCORPORATED.

"STAFFING PLANS PROPOSED ARE DEEMED INADEQUATE. THE TOTAL STAFFING PLAN HINGES ON PLANS TO ACQUIRE THE INCUMBENT STAFF WITH NO SPECIFICITY AS TO ADDITIONAL STAFF MEMBERS. NO REAL SYSTEMS ANALYSIS CAPABILITY IS EVIDENCED AMONG THOSE PROPOSED.

"ORGANIZATION AND MANAGEMENT PLANS ARE NOT ADEQUATE. THEY HAVE REALLY NOT DEVELOPED OR PRESENTED ANY PLANS FOR COST AND/OR SCHEDULE CONTROL.

"THE PROPOSAL PRESENTS NO FIRM INDICATION THAT THE FACILITIES REQUIRED FOR PERFORMANCE WILL BE AVAILABLE. THE MATTER OF FACILITIES AVAILABILITY IS GLOSSED OVER IN THE PROPOSAL.

"NO INFORMATION WAS PROVIDED ON COST AND SCHEDULE PERFORMANCE ON PREVIOUS RELATED CONTRACTS. THE CONTRACTOR'S PREVIOUS EXPERIENCE UNDER COST REIMBURSEMENT CONTRACTS SEEMS LIMITED."

SECTION 1-3.805.1(A) (1964 ED.) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) REQUIRES DISCUSSIONS ONLY WITH RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED. WE HAVE RECOGNIZED THAT THE USE OF A POINT RATING SYSTEM FOR EVALUATING PROPOSALS, AS HERE, IS AN APPROPRIATE METHOD FOR DETERMINING WHICH PROPOSALS ARE WITHIN THE COMPETITIVE RANGE. SEE 47 COMP. GEN. 252 (1967) AND B-176077(1), JANUARY 26, 1973. A PROPOSAL RECEIVING A LOW SCORE COMPARED TO THE ARRAY OF SCORES ACHIEVED BY OTHER PROPOSALS NEED NOT BE CONSIDERED WITHIN THE COMPETITIVE RANGE. SEE 52 COMP. GEN. 382, 387 (1972). MOREOVER, AS A GENERAL RULE, AN UNACCEPTABLE TECHNICAL PROPOSAL MAY BE REJECTED WITHOUT CONSIDERATION OF PRICE, PROVIDED PRICES PROPOSED BY QUALIFIED OFFERORS WHO SUBMIT ACCEPTABLE PROPOSALS ARE CONSIDERED PRIOR TO THE CONTRACT AWARD. SEE 52 COMP. GEN. 382, 388, SUPRA. WHETHER THE POINT SPREAD BETWEEN COMPETING PROPOSALS INDICATES SIGNIFICANT SUPERIORITY OF ONE PROPOSAL OVER ANOTHER DEPENDS UPON THE FACTS AND CIRCUMSTANCES OF EACH PROCUREMENT AND IS PRIMARILY A MATTER WITHIN THE DISCRETION OF THE PROCURING ACTIVITY. SEE 52 COMP. GEN. 686 (1973).

IN CONSIDERING THIS PROTEST WE HAVE REVIEWED THE ABOVE-QUOTED NARRATIVE ANALYSIS OF POTOMAC'S PROPOSAL TOGETHER WITH THE ANALYSES MADE OF OTHER OFFERORS' PROPOSALS. IN OUR OPINION THE EVALUATION PANEL'S SCORING OF POTOMAC'S PROPOSAL PROVIDES A REASONABLE BASIS FOR THE DETERMINATION OF UNACCEPTABILITY NOTWITHSTANDING THE FIRM'S PRIOR INVOLVEMENT IN THE CHESS PROGRAM. POTOMAC CONTENDS IT WAS ADVISED BY EPA SHORTLY AFTER COMMENCEMENT OF PERFORMANCE UNDER ITS GSA CONTRACT THAT ITS PROGRAM MANAGER AND STAFF WERE PERFORMING WELL. HOWEVER, IT DOES NOT APPEAR THAT THE EXPERIENCE AND QUALIFICATIONS OF POTOMAC'S EMPLOYEES WERE CONSIDERED BY EPA FOR PURPOSES OF THE INSTANT PROCUREMENT UNTIL POTOMAC'S PROPOSAL WAS EVALUATED. IT IS ALSO APPARENT THAT THE SCOPE OF THE INSTANT CONTRACT IS CONSIDERABLY GREATER THAN THE PERFORMANCE RENDERED BY POTOMAC UNDER ITS GSA CONTRACT. IN ADDITION, EPA WAS INTERESTED IN RETAINING THE EXISTING STAFF IN ORDER TO MINIMIZE TRANSITIONAL PROBLEMS. EPA DID NOT INTEND TO INDICATE THAT USE OF EXISTING PERSONNEL WOULD ASSURE ACCEPTABILITY OF AN OFFEROR'S PROPOSAL.

IN THE CIRCUMSTANCES, WE FIND THAT THE REJECTION OF POTOMAC'S PROPOSAL RESULTED FROM THE EXERCISE OF REASONABLE JUDGMENT BY EPA'S TECHNICAL PANEL. WE BELIEVE THAT THE SELECTION PROCEDURES FOLLOWED BY EPA CONFORMED TO THE PERTINENT PROCUREMENT REGULATIONS AND PRIOR DECISIONS OF THIS OFFICE CITED ABOVE.

THE PROTESTER ALSO ARGUES THAT EPA WAS NOT AUTHORIZED TO CONTRACT FOR THE REQUIRED SERVICES. POTOMAC STATES THAT THE PROVISIONS OF THE BROOKS ACT, 40 U.S.C. 759 (1970) CONSTITUTE GSA AS THE MANAGER OF THE GOVERNMENT'S DATA PROCESSING RESOURCES. IN PERTINENT PART THE LAW AUTHORIZES THE ADMINISTRATOR, GSA, TO ACQUIRE AND TO MAINTAIN EQUIPMENT FOR USE BY GOVERNMENT AGENCIES, TO TRANSFER EQUIPMENT BETWEEN AGENCIES AND TO PROVIDE FOR ITS JOINT UTILIZATION BY MORE THAN ONE AGENCY. FURTHERMORE, THE ADMINISTRATOR IS AUTHORIZED TO DELEGATE AUTHORITY TO OPERATE ADP POOLS AND ADP CENTERS AND TO LEASE, PURCHASE OR MAINTAIN ADP SYSTEMS OR CENTERS WHEN SUCH ACTION IS DETERMINED TO BE NECESSARY FOR THE ECONOMY AND EFFICIENCY OF OPERATION.

GSA REGULATIONS FOR MANAGEMENT OF EQUIPMENT ARE SET OUT IN FEDERAL PROPERTY MANAGEMENT REGULATIONS (FPMR) SEC. 101-32. THE PROTESTER ARGUES THAT PURSUANT TO FPMR SEC. 101-32.203-1, EPA IS REQUIRED TO OBTAIN ADP SERVICES AVAILABLE FROM GSA UNLESS IT HAS BEEN AUTHORIZED TO DO OTHERWISE. THIS REGULATION PROVIDES, IN PART, AS FOLLOWS:

"SEC. 101-32.203-1 ADP SHARING PROCEDURES.

"(A) FEDERAL AGENCIES SHALL FIRST ATTEMPT TO SATISFY REQUIREMENTS FOR ADP SERVICES BY SCREENING RESOURCES OF OTHER ADP UNITS IN THEIR IMMEDIATE VICINITY. IF THE RESULT OF THE SCREENING IS UNSUCCESSFUL, THE REQUIREMENT SHALL BE REFERRED TO THE APPROPRIATE ADP SHARING EXCHANGE FOR ASSISTANCE. REQUESTS FOR ASSISTANCE MAY BE MADE BY MAIL, TELEPHONE, TELETYPE, OR PERSONAL CONTACT. GSA FORM 2068, REQUEST FOR ADP SERVICES (ILLUSTRATED AT SEC. 101-32.4902-2068), SHOULD BE USED FOR MAIL REQUESTS."

POTOMAC ARGUES THAT EPA WAS REQUIRED UNDER THE ABOVE-CITED LAW AND REGULATION TO OBTAIN AUTHORITY TO PROCURE BY COMPLETING A GSA FORM 2068 OR BY OBTAINING AN EXEMPTION PURSUANT TO FPMR SEC. 101-32.203-3. THE PROTESTER BELIEVES EPA DID NEITHER AND THAT THE SERVICES SHOULD HAVE BEEN ACQUIRED THROUGH GSA UNDER THE PROTESTER'S CONTRACT.

THE RECORD SHOWS THAT AFTER A SERIES OF DISCUSSIONS, EPA REQUESTED, AND BY LETTER DATED OCTOBER 25, 1974, RECEIVED, AUTHORIZATION FROM THE DIRECTOR, GSA REGION IV, AGENCY SERVICES COORDINATING DIVISION, TO PROCEED WITH A COMPETITIVE PROCUREMENT FOR THE DESIRED ADP SERVICES. APPARENTLY THE PROTESTER RECEIVED A COPY OF GSA'S LETTER ON DECEMBER 30, 1974, FROM A SOURCE OTHER THAN THE PROCURING AGENCY AND THEN RAISED THE AUTHORITY ISSUE WITH THIS OFFICE. HOWEVER, NO REASON IS GIVEN FOR POTOMAC'S FAILURE TO INQUIRE INTO THIS THRESHOLD MATTER OF EPA'S AUTHORITY PRIOR TO THE OFFEROR'S ACTIVE PARTICIPATION IN THE PROCUREMENT. WHILE WE HAVE RESERVATIONS ABOUT THE PROTESTER FIRST RAISING SUCH AN ISSUE AFTER AWARD TO A COMPETITOR, WE THINK THE CONTRACTING AGENCY'S EFFORTS TO SATISFY THE APPLICABLE REGULATORY REQUIREMENTS MERIT DISCUSSION.

IT APPEARS THAT WHILE GSA REMAINED CONVINCED THAT ITS REVISED BILLING RATES, EFFECTIVE NOVEMBER 1, 1974, WERE REASONABLE, ITS LETTER OF OCTOBER 25 STATED THAT EPA COULD PROCEED WITH THE PROCUREMENT ON THE BASIS OF EPA'S REPRESENTATION THAT A DIRECT CONTRACT WITH A COMMERCIAL SOURCE WOULD RESULT IN THE LOWEST OVERALL COST TO THE GOVERNMENT. HOWEVER, GSA ADVISED THAT PRIOR TO AWARD EPA SHOULD DETERMINE WHETHER THE AWARD REPRESENTED THE LOWEST OVERALL COST TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. IN OUR OPINION, THE ABOVE ACTIONS TAKEN BY EPA, TOGETHER WITH GSA'S LETTER OF OCTOBER 25, SATISFY, IN SUBSTANCE IF NOT IN FORM, THE ADP SHARING PROCEDURES REQUIRED BY FPMR SEC. 101 32.203-1. THE PROTESTER FURTHER CONTENDS THAT GSA'S LETTER OF OCTOBER 25 IMPROPERLY DELEGATES GSA'S RESPONSIBILITY TO DETERMINE WHETHER ECONOMY AND EFFICIENCY OF OPERATIONS WOULD BE SERVED BY EPA'S PROCUREMENT FROM A COMMERCIAL SOURCE AND THAT SUCH DELEGATION IS INVALID. POTOMAC CONTENDS THAT GSA'S AUTHORIZATION DOES NOT JUSTIFY PROCUREMENT FROM A COMMERCIAL SOURCE TO THE DEGREE CONTEMPLATED BY FPMR SEC. 101-32.203-3(B), BUT IN FACT CONCLUDES THE OPPOSITE.

WE NOTE IT IS EPA'S POSITION THAT A DELEGATION OF PROCUREMENT AUTHORITY WAS NOT REQUIRED UNDER THE CIRCUMSTANCES OF THIS CASE. HOWEVER, WE DO NOT THINK IT IS NECESSARY TO RESOLVE THIS QUESTION SINCE IN THIS CASE EPA SOUGHT TO COMPLY WITH RELEVANT PROVISIONS OF THE FPMR. WE THINK THE RECORD IS REASONABLY CLEAR THAT ALTHOUGH GSA FELT THAT ITS BILLING RATES WERE REASONABLE, IT NEVERTHELESS AUTHORIZED EPA TO PROCEED WITH A COMPETITIVE PROCUREMENT ON THE BASIS OF REPRESENTATIONS THAT EPA COULD OBTAIN SERVICES FROM COMMERCIAL SOURCES FOR CONSIDERABLY LESS THAN GSA'S BILLING RATES. EPA HAS ADVISED THAT THE PROPOSALS RECEIVED CONFIRM THE REPRESENTATIONS MADE TO GSA.

IN THIS CONNECTION, THE PROTESTER HAS CONTENDED THAT GSA, NOT EPA, SHOULD HAVE DETERMINED WHETHER THE PROPOSED AWARD TO SPERRY-UNIVAC WAS IN THE BEST INTERESTS OF THE GOVERNMENT. WE FIND NO BASIS IN LAW OR REGULATION FOR SUCH A CONCLUSION. ONCE GSA ASSENTED TO EPA'S PROCUREMENT, WE BELIEVE THAT EPA HAD THE RESPONSIBILITY TO EVALUATE THE PROPOSALS AND TO SELECT AN APPROPRIATE CONTRACTOR FOR ITS REQUIREMENT. ALTHOUGH POTOMAC HAS CITED FPMR SEC. 101-32.203-3(B) AS REQUIRING DEFINITIVE JUSTIFICATION THAT THE EPA PROCUREMENT WILL ENSURE ECONOMY AND EFFICIENCY, THE PROVISION DOES NOT APPEAR TO BE APPLICABLE HERE SINCE IT IS, BY ITS TERMS, APPLICABLE "WHEN FEDERAL AGENCIES DESIRE TO EXEMPT ADP EQUIPMENT" FROM THE REQUIREMENTS FOR SHARING, WHEREAS THIS PROCUREMENT COVERS ESSENTIALLY ADP SERVICES.

FINALLY, POTOMAC CONTENDS THE AWARD TO SPERRY-UNIVAC PRIOR TO RESOLUTION OF ITS PROTEST IS ILLEGAL SINCE THE AGENCY FAILED TO COMPLY WITH THE PROVISIONS OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 C.F.R. SEC. 20.4 (1974).

THE CITED PROCEDURE PROVIDES THAT AWARD SHALL NOT BE MADE PRIOR TO A RULING ON THE PROTEST BY THE COMPTROLLER GENERAL, UNLESS THERE HAS FIRST BEEN FURNISHED TO THE GENERAL ACCOUNTING OFFICE A WRITTEN FINDING BY THE HEAD OF THE AGENCY, HIS DEPUTY OR AN ASSISTANT SECRETARY (OR EQUIVALENT), SPECIFYING THE FACTORS WHICH WILL NOT PERMIT A DELAY IN THE AWARD UNTIL ISSUANCE OF A RULING BY THE COMPTROLLER GENERAL. THE RECORD SHOWS THAT THE ASSISTANT ADMINISTRATOR FOR PLANNING AND MANAGEMENT, THE EQUIVALENT OF AN ASSISTANT SECRETARY, MADE THE NECESSARY WRITTEN FINDING AND APPROVAL ON DECEMBER 27, 1974 (PRIOR TO AWARD), ON WHICH DATE THIS OFFICE WAS TELEPHONICALLY ADVISED OF EPA'S INTENTION TO PROCEED WITH CONTRACT AWARD. WHILE THE WRITTEN DETERMINATION WAS FORWARDED TO THIS OFFICE ON DECEMBER 31, 1974, AND NOT RECEIVED UNTIL A FEW DAYS AFTER THE AWARD, WE BELIEVE THE AGENCY SUBSTANTIALLY COMPLIED WITH THE SPIRIT OF OUR PROCEDURE. ANY EVENT, WE HAVE RECOGNIZED THAT WE HAVE NO AUTHORITY TO REQUIRE THE WITHHOLDING OF AN AWARD PENDING A DECISION BY OUR OFFICE ON A BID PROTEST. 51 COMP. GEN. 787, 792 (1972).

ACCORDINGLY, THE PROTEST IS DENIED.