B-187397(1), FEBRUARY 4, 1977

B-187397(1): Feb 4, 1977

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PROTEST AGAINST ALLEGED IMPROPRIETIES IN RFP NOT FILED PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS WITH EITHER CONTRACTING AGENCY OR GAO IS UNTIMELY. 2. PROTEST FILED WITHIN 10 WORKING DAYS AFTER DEBRIEFING IS TIMELY SINCE CONTRACTING AGENCY DID NOT STATE ALL GROUNDS FOR UNACCEPTABILITY OF PROPOSAL ON RFP UNTIL DEBRIEFING. 3. CONTRACTING AGENCY'S INTERPRETATIONS OF STATEMENTS IN PROPOSAL ON RFP ARE FOLLOWED WHERE REASONABLE ALTHOUGH MAYBE NOT IN ACCORDANCE WITH INTENTION OF OFFEROR. 4. IT IS NOT FOR GAO TO MAKE THAT EVALUATION. DOT-OST-017 WAS ISSUED BY THE DEPARTMENT OF TRANSPORTATION (DOT) TO PROCURE THE SERVICES OF EXPERTS TO MAKE ECONOMIC STUDIES TO BE USED IN THE PREPARATION OF TESTIMONY AND EXHIBITS INVOLVING THE REGULATION OF INTERNATIONAL AND DOMESTIC AIR ROUTES.

B-187397(1), FEBRUARY 4, 1977

1. PROTEST AGAINST ALLEGED IMPROPRIETIES IN RFP NOT FILED PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS WITH EITHER CONTRACTING AGENCY OR GAO IS UNTIMELY. 2. PROTEST FILED WITHIN 10 WORKING DAYS AFTER DEBRIEFING IS TIMELY SINCE CONTRACTING AGENCY DID NOT STATE ALL GROUNDS FOR UNACCEPTABILITY OF PROPOSAL ON RFP UNTIL DEBRIEFING. 3. CONTRACTING AGENCY'S INTERPRETATIONS OF STATEMENTS IN PROPOSAL ON RFP ARE FOLLOWED WHERE REASONABLE ALTHOUGH MAYBE NOT IN ACCORDANCE WITH INTENTION OF OFFEROR. 4. ALTHOUGH PROTESTER DISAGREES WITH CONTRACTING AGENCY EVALUATION OF PROPOSALS AS TO ADEQUACY OF PERSONNEL OFFERED BY PROTESTER AND SUCCESSFUL OFFEROR IN PROPOSALS ON RFP, IT IS NOT FOR GAO TO MAKE THAT EVALUATION.

SYSTEMS ANALYSIS AND RESEARCH CORPORATION:

REQUEST FOR PROPOSALS (RFP) NO. DOT-OST-017 WAS ISSUED BY THE DEPARTMENT OF TRANSPORTATION (DOT) TO PROCURE THE SERVICES OF EXPERTS TO MAKE ECONOMIC STUDIES TO BE USED IN THE PREPARATION OF TESTIMONY AND EXHIBITS INVOLVING THE REGULATION OF INTERNATIONAL AND DOMESTIC AIR ROUTES. LETTER DATED JUNE 21, 1976, DOT ADVISED SYSTEMS ANALYSIS AND RESEARCH CORPORATION (SARC) THAT ITS PROPOSAL WAS NOT IN THE COMPETITIVE RANGE WITH RESPECT TO TECHNICAL FACTORS. ON JUNE 22, 1976, SARC WAS ADVISED BY TELEPHONE THAT ITS PROPOSAL WAS DETERMINED TO BE TECHNICALLY UNACCEPTABLE BECAUSE IN INTERNATIONAL STUDIES IT PROPOSED HEAVY USE OF CAB INTERNATIONAL ORIGINATION AND DESTINATION SURVEYS SUPPLEMENTED BY CARRIER REPORTS WHICH HAD BEEN FOUND UNRELIABLE IN THE PAST. BY LETTER DATED JUNE 23, 1976, SARC REQUESTED A DEBRIEFING. THE DEBRIEFING WAS POSTPONED UNTIL SEPTEMBER 8, 1976, WHEN SARC WAS ADVISED BY TELEPHONE OF THE ADDITIONAL BASES UPON WHICH ITS PROPOSAL WAS DETERMINED TO BE UNACCEPTABLE. AWARD ALSO WAS MADE ON SEPTEMBER 8, 1976. SARC FILED A PROTEST WITH THIS OFFICE ON SEPTEMBER 10, 1976, ON THE FOLLOWING GROUNDS:

1. THE RFP WAS DEFECTIVE BY USING AMBIGUOUS EVALUATION CRITERIA.

2. THE SARC PROPOSAL WAS NOT PROPERLY EVALUATED.

THE FIRST ALLEGATION GOES TO THE ADEQUACY OF THE RFP. IN THIS REGARD, SECTION 20.2(B)(1) OF THE BID PROTEST PROCEDURES, 4 C.F.R.PART 20 (1976), PROVIDES IN PERTINENT PART:

"PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS SHALL BE FILED PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS. * * * "

THE ALLEGED AMBIGUITIES IN THE EVALUATION CRITERIA WERE APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS. SINCE SARC'S PROTEST WAS NOT FILED WITH EITHER DOT OR THIS OFFICE UNTIL AFTER THE CLOSING DATE FOR THE RECEIPT OF PROPOSALS, IT IS UNTIMELY AND NOT FOR CONSIDERATION ON THE MERITS.

DOT HAS QUESTIONED THE TIMELINESS OF THE PROTEST WITH REGARD TO THE ALLEGATION THAT SARC'S PROPOSAL WAS NOT PROPERLY EVALUATED, SINCE SARC ADMITS IT WAS ADVISED BY TELEPHONE ON JUNE 22 OF THE BASIS FOR BEING FOUND TECHNICALLY UNACCEPTABLE. HOWEVER, SARC WAS NOT ADVISED OF THE COMPLETE BASIS AT THAT TIME. IT IS CLEAR FROM THE RECORD THAT THERE WERE TWO ADDITIONAL REASONS FOR REJECTING THE SARC PROPOSAL AS TECHNICALLY UNACCEPTABLE AND THAT THESE BASES WERE NOT DISCLOSED TO SARC UNTIL THE SEPTEMBER 8 DEBRIEFING. IN THE AGENCY REPORT, IT IS STATED THAT SARC'S PROPOSAL WAS "SUBMARGINAL IN THREE MAJOR AREAS" AND "EACH ACTED TO REINFORCE THE OTHERS." THUS, IN OUR VIEW, THE DISCLOSURE OF ONE, WITHOUT THE OTHERS, IS NOT CONSIDERED TO BE A COMPLETE DISCLOSURE. SARC COULD NOT HAVE FULLY AND INTELLIGENTLY PROTESTED THE REJECTION BASED ON THE INFORMATION OBTAINED IN JUNE. IN THAT CONNECTION WE HAVE HELD THAT A PROTESTER COULD REASONABLY WITHHOLD FILING A PROTEST UNTIL IT HAD A DEBRIEFING FROM THE PROCURING AGENCY EXPLAINING ITS POSITION. LAMBDA CORPORATION, 54 COMP.GEN. 468 (1974), 74-2 CPD 312. THIS IS TO BE DISTIN0ISHED FROM SINGER COMPANY, B-186547, DECEMBER 14, 1976, 56 COMP.GEN. . . . , AND POWER CONVERSION, INC., B-186719, SEPTEMBER 20, 1976, 76-2 CPD 256, WHERE THE PROTESTERS PREVIOUSLY HAD BEEN GIVEN ALL THE REASONS WHY THEIR PROPOSALS WERE REJECTED, WHICH IS NOT THE CASE HERE.

ACCORDINGLY, BECAUSE SARC PROTESTED HERE WITHIN 10 WORKING DAYS FROM THE DATE OF THE DEBRIEFING, WE CONSIDER THE PROTEST TO HAVE BEEN TIMELY FILED ON THE ISSUE OF REJECTION OF THE PROPOSAL.

IN ITS DISCUSSION OF THE STATISTICAL ANALYSIS OF TRAFFIC, SARC STATED "THE SOURCE WILL BE THE ORIGINATION AND DESTINATION AIRLINE TRAFFIC SURVEYS PRODUCED BY CAB, AS SUPPLEMENTED BY CARRIER REPORTS." DOT CONTENDS THIS STATEMENT ASSUMES THAT FOREIGN CARRIER TRAFFIC DATA WOULD BE FURNISHED TO SARC BY THE FOREIGN CARRIERS. DOT STATES THAT IS NOT THE CASE. SARC RESPONDS THAT DOT MADE AN INCORRECT ASSUMPTION AS IT DID NOT INDICATE THAT IT EXPECTED TO GET THE REPORTS DIRECTLY FROM THE CARRIERS. HOWEVER, WHILE IT MAY NOT HAVE BEEN SARC'S INTENTION TO INDICATE THAT THE DATA WOULD BE OBTAINED FROM THE CARRIERS, WE ARE UNABLE TO CONCLUDE THAT THE STATEMENT DID NOT REASONABLY PERMIT THAT INTERPRETATION.

SARC HAS STATED THAT IF THERE WAS ANY QUESTION IN THIS REGARD, DOT COULD HAVE REQUESTED CLARIFICATION AT THE SAME TIME IT CLARIFIED THE ISSUE WITH THE SUCCESSFUL OFFEROR. HOWEVER, THE SUCCESSFUL OFFEROR WAS NOT REQUESTED TO CLARIFY ITS PROPOSAL. ALTHOUGH IT DID NOT REVEAL IN ITS PROPOSAL THE SOURCE DATA IT WOULD USE, IT WAS NOT REQUIRED TO DO SO BY THE RFP. NEVERTHELESS, WE HAVE ASCERTAINED THAT IN PERFORMING UNDER THE CONTRACT, BESIDE THE CAB SURVEYS, IT HAS USED THE FOLLOWING ADDITIONAL SOURCES OF DATA: (1) INTERNATIONAL CIVIL AVIATION ORGANIZATION (ICAO) SECTOR FLOW DATA, (2) IMMIGRATION AND NATURALIZATION SERVICE FORM I92 AND (3) FOREIGN CARRIER FILINGS - CAPACITY LIMITATION AGREEMENTS. AS DOT HAS INDICATED, SARC WAS NOT REQUIRED TO INDICATE THE SOURCE DATA IT WOULD USE EITHER, BUT ONCE IT DID IN THE PROPOSAL, DOT COULD NOT IGNORE THE INFORMATION.

THE TWO ADDITIONAL REASONS WHY THE SARC PROPOSAL WAS REJECTED WERE:

A. SARC'S PROPOSAL DEMONSTRATED A MISUNDERSTANDING OF DOT'S OBJECTIVES IN ROUTE CASES.

B. SARC'S ORGANIZATION INDICATED A TOP-HEAVY STAFFING SITUATION WITH WEAKNESS IN MIDDLE LEVEL PEOPLE.

WITH RESPECT TO POINT "A," DOT STATES IT WAS THE PURPOSE OF THE RFP TO OBTAIN ECONOMIC STUDIES IN SUPPORT OF SPECIFIC POLICY OBJECTIVES AND THAT SARC SOUGHT TO PROVIDE MAJOR INPUT IN DOT POLICY MATTERS AND THE OVERALL CONSIDERATION OF COMPLEX ISSUES. DOT RELIES UPON THE FOLLOWING STATEMENT IN SARC'S PROPOSAL TO SHOW THAT SARC PROPOSED TO ASSIST IN POLICY FORMATION:

"SARC ALSO APPRECIATES THE IMPORTANCE OF ASSISTING THE DEPARTMENT IN UNDERSTANDING THE RAMIFICATIONS OF ITS PROPOSED ACTIONS ON THE TRAVELING PUBLIC, THE SHIPPERS, THE PUBLIC CARRIERS, AND THE GENERAL PUBLIC. THE INTERFACING OF OUR NATIONAL CONCERNS, GOALS AND PRIORITIES WITH TRANSPORTATION POLICIES AND PROGRAMS IS AN AREA IN OR OUT OF GOVERNMENT. EVEN WITHIN THE TRANSPORTATION FIELD, THE INTERRELATIONSHIPS BETWEEN THE DEMAND FOR TRANSPORTATION SERVICES, THE AVAILABILITY OF SUITABLE TRANSPORTATION EQUIPMENT, THE NECESSARY SUPPORT FACILITIES AND SERVICE, THE ECONOMIC REGULATIONS, THE SAFETY CONTROLS, AND THE ENVIRONMENTAL CONTROLS, ARE FOR THE MOST PART DEVELOPED INDEPENDENT OF EACH OTHER.

"OUR APPROACH, THEREFORE, WOULD BE TO HELP DOT DEVELOP AND SUPPORT DEFENSIBLE POSITIONS FOR ECONOMIC REGULATION WHICH STRIKE A REASONABLE BALANCE BETWEEN THE BROADER CONCERNS AND PRIORITIES OF THE NATION FOR THE CONSERVATION OF OUR NATURAL RESOURCES, THE PROTECTION OF OUR ENVIRONMENT AND THE PROTECTION OF THE TRANSPORTATION SHIPPER AND PASSENGER, ON THE ONE HAND, AND ON THE OTHER HAND, THE NATIONAL CONCERNS AND PRIORITIES FOR ASSURING ECONOMIC PROGRESS, A FAVORABLE COMPETITIVE POSITION BOTH AT HOME AND ABROAD AND AN ECONOMICALLY VIABLE PUBLIC TRANSPORTATION INDUSTRY.

"WITHIN THIS CONTEXT SARC WOULD ASSIST THE DEPARTMENT THROUGH ANALYSIS OF THE ISSUES AND PREPARATION OF SUITABLE MATERIAL FOR USE IN THE PROCEEDINGS OF THE TRANSPORTATION ECONOMIC REGULATORY BODIES, PARTICULARLY THE CAB. * * " (EMPHASIS SUPPLIED BY DOT.)

SARC AGREES THAT IT IS FOR DOT TO DEVELOP TRANSPORTATION POLICIES AND STATES THAT DOT HAS INTERPRETED THE FOREGOING STATEMENT TOO BROADLY. HOWEVER, IT IS AGAIN A MATTER OF HOW THE PROPOSAL IS TO BE INTERPRETED. WE DO NOT FIND THAT THE STATEMENT REASONABLY PRECLUDED THE MEANING WHICH DOT DERIVED FROM IT.

WITH REGARD TO POINT "B," DOT HAS CONCLUDED THAT SARC WAS TOP-HEAVY IN HIGH LEVEL PEOPLE AND THAT TWO OF THE MIDDLE LEVEL PEOPLE HAD LITTLE BACKGROUND AND EXPERIENCE IN AIR TRANSPORTATION OR TRAFFIC ANALYSIS. SARC DISAGREES THAT IT IS TOP-HEAVY, BUT IS SILENT ON THE TWO MIDDLE LEVEL PEOPLE. FURTHER, SARC ALLEGES THAT ITS STAFF RESOURCES EXCEED THAT OF THE SUCCESSFUL OFFEROR.

IT IS NOT OUR FUNCTION TO EVALUATE PROPOSALS IN ORDER TO DETERMINE WHICH SHOULD HAVE BEEN SELECTED FOR AWARD. TGI CONSTRUCTION CORPORATION, ET AL., 54 COMP.GEN. 775 (1975), 75-1 CPD 167; TECHPLAN CORPORATION, B-180795, SEPTEMBER 16, 1974, 74-2 CPD 169; DECISION SCIENCES CORPORATION, B-182558, MARCH 24, 1975, 75-1 CPD 175. THE OVERALL DETERMINATION OF THE RELATIVE MERITS OF PROPOSALS IS THE RESPONSIBILITY OF THE CONTRACTING AGENCY, SINCE IT MUST BEAR THE MAJOR BURDEN FOR ANY DIFFICULTIES INCURRED BY REASON OF A DEFECTIVE EVALUATION. TRAINING CORPORATION OF AMERICA, B-181539, DECEMBER 13, 1974, 74-2 CPD 337. ACCORDINGLY, WE HAVE CONSISTENTLY HELD THAT PROCURING OFFICIALS ENJOY "A REASONABLE RANGE OF DISCRETION IN THE EVALUATION OF PROPOSALS AND IN THE DETERMINATION OF WHICH OFFER OR PROPOSAL IS TO BE ACCEPTED FOR AWARD," AND THAT SUCH DETERMINATIONS ARE ENTITLED TO GREAT WEIGHT AND MUST NOT BE DISTURBED UNLESS SHOWN TO BE ARBITRARY OR IN VIOLATION OF THE PROCUREMENT STATUES AND REGULATIONS. PRC COMPUTER CENTER, INC., ET AL., 55 COMP.GEN.60 (1975), 75-2 CPD 35; METIS CORPORATION, 54 COMP.GEN. 612, 614-5 (1975), 75-1 CPD 44; RIGGINS & WILLIAMSON MACHINE COMPANY, INC., 54 COMP.GEN. 783 (1975), 75-1 CPD 168; B-178220, DECEMBER 10, 1973. THUS, WHILE SARC DISAGREES WITH DOT'S EVALUATION OF PROPOSALS AS TO THE ADEQUACY OF PERSONNEL OFFERED BY SARC AND THE SUCCESSFUL OFFEROR, IT IS NOT FOR OUR OFFICE TO MAKE THAT EVALUATION. MOREOVER, DOT'S DETERMINATION DOES NOT APPEAR TO BE WITHOUT ANY SUPPORT.

ADDITIONALLY, SARC CONTENDS THAT, NOTWITHSTANDING THE ALLEGED TECHNICAL DEFICIENCIES IN ITS PROPOSAL, ITS LOW-COST OFFER JUSTIFIED ITS INCLUSION IN THE COMPETITIVE RANGE. HOWEVER, WHERE, AS HERE, A PROPOSAL HAS BEEN FOUND TO BE SO TECHNICALLY INFERIOR THAT MEANINGFUL NEGOTIATIONS ARE PRECLUDED, IT MAY BE ELIMINATED FROM THE COMPETITIVE RANGE WITHOUT REGARD TO ITS LOW COST. 52 COMP.GEN. 382, 388 (1972).

ACCORDINGLY, THE PROTEST IS DENIED.