B-199171, OCTOBER 10, 1980, 60 COMP.GEN. 11

B-199171: Oct 10, 1980

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SYNOPSIS SHOWS PROCUREMENT WILL NOT BE SET ASIDE FOR SMALL BUSINESS. PROTEST THAT PROCUREMENT SHOULD HAVE BEEN SET ASIDE IS UNTIMELY UNLESS FILED PRIOR TO DEADLINE SPECIFIED IN SYNOPSIS FOR RECEIPT OF QUALIFICATION STATEMENT. SERVICES - CONTRACTOR SELECTION BASE - "BROOKS BILL" APPLICATION - EVALUATION PROCESS - DOCUMENTATION AGENCY EVALUATORS MUST DOCUMENT BASIS FOR EVALUATION AND RANKING OF COMPETING A-E FIRMS TO SHOW JUDGMENTS ARE REASONABLE AND CONSISTENT WITH EVALUATION CRITERIA EVEN THOUGH SUCH JUDGMENTS MAY NECESSARILY BE SUBJECTIVE. THE CONTRACT IS FOR A COMPREHENSIVE STUDY TO ASSURE THAT DEVELOPMENT IN AND AROUND THE EL TORO MARINE CORPS AIR STATION IS COMPATIBLE WITH THE NOISE LEVEL AND ACCIDENT POTENTIAL RESULTING FROM AIRCRAFT OPERATIONS.

B-199171, OCTOBER 10, 1980, 60 COMP.GEN. 11

CONTRACTS - ARCHITECT, ENGINEERING, ETC. SERVICES - PROCUREMENT PRACTICES - DEPARTMENT OF DEFENSE - PROTEST TIMELINESS - FAILURE TO SET ASIDE WHERE AGENCY DOES NOT ISSUE SOLICITATION FOR ARCHITECT-ENGINEERING (A-E) SERVICES BUT SYNOPSIZES PROCUREMENT IN COMMERCE BUSINESS DAILY, AND SYNOPSIS SHOWS PROCUREMENT WILL NOT BE SET ASIDE FOR SMALL BUSINESS, PROTEST THAT PROCUREMENT SHOULD HAVE BEEN SET ASIDE IS UNTIMELY UNLESS FILED PRIOR TO DEADLINE SPECIFIED IN SYNOPSIS FOR RECEIPT OF QUALIFICATION STATEMENT. CONTRACTS - ARCHITECT, ENGINEERING, ETC. SERVICES - CONTRACTOR SELECTION BASE - "BROOKS BILL" APPLICATION - EVALUATION PROCESS - DOCUMENTATION AGENCY EVALUATORS MUST DOCUMENT BASIS FOR EVALUATION AND RANKING OF COMPETING A-E FIRMS TO SHOW JUDGMENTS ARE REASONABLE AND CONSISTENT WITH EVALUATION CRITERIA EVEN THOUGH SUCH JUDGMENTS MAY NECESSARILY BE SUBJECTIVE.

MATTER OF: WADELL ENGINEERING CORPORATION, OCTOBER 10, 1980:

WADELL ENGINEERING CORPORATION (WADELL) PROTESTS THE AWARD OF AN ARCHITECT/ENGINEER (A/E) CONTRACT BY THE WESTERN DIVISION, NAVAL FACILITIES ENGINEERING COMMAND (NAVY) TO PRC-R. DIXON-SPEAS ASSOCIATES (DIXON-SPEAS). THE CONTRACT IS FOR A COMPREHENSIVE STUDY TO ASSURE THAT DEVELOPMENT IN AND AROUND THE EL TORO MARINE CORPS AIR STATION IS COMPATIBLE WITH THE NOISE LEVEL AND ACCIDENT POTENTIAL RESULTING FROM AIRCRAFT OPERATIONS.

WADELL CONTENDS THAT THE CONTRACTING OFFICER ERRONEOUSLY DECIDED NOT TO DESIGNATE THE PROCUREMENT AS A SMALL BUSINESS SET-ASIDE AND THAT THE NAVY DID NOT PROPERLY APPLY THE PUBLISHED EVALUATION CRITERIA IN ITS SELECTION OF THE A/E CONTRACTOR. BECAUSE WE AGREE WITH THE PROTESTER THAT THE REASONABLENESS OF THE AGENCY'S EVALUATION PROCESS IS QUESTIONABLE, THE PROTEST IS SUSTAINED.

UNDER OUR BID PROTEST PROCEDURES, 4 C.F.R.PART 20(1980), WADELL'S FIRST CONTENTION IS UNTIMELY. THESE PROCEDURES REQUIRE THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION THAT ARE APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS BE FILED BEFORE THAT DATE. 4 C.F.R. 20.2(B)(1).

IN THIS CASE, WE BELIEVE THAT THE COMMERCE BUSINESS DAILY (CBD) SYNOPSIS IS TANTAMOUNT TO A SOLICITATION (SINCE A SEPARATE SOLICITATION FOR A-E SERVICES IS NOT ISSUED) AND THAT IT WAS APPARENT FROM THE SYNOPSIS THAT THE PROCUREMENT WAS NOT BEING CONDUCTED AS A SMALL BUSINESS SET-ASIDE. (SEE SECTION 1-1003.9 OF THE DEFENSE ACQUISITION REGULATION (DAR) (1976 ED.) REQUIRING THAT THE SYNOPSIS STATE THAT THE PROCUREMENT IS A SET- ASIDE.) THEREFORE, WE BELIEVE WADELL WAS REQUIRED TO PROTEST BEFORE THE DEADLINE SPECIFIED IN THE SYNOPSIS FOR RECEIPT OF QUALIFICATIONS STATEMENTS. CF. INFORMATION INTERNATIONAL, INC., 59 COMP.GEN.-- (1980), 80-2 CPD 100. SINCE WADELL DID NOT PROTEST UNTIL AFTER IT HAD LEARNED OF THE PROPOSED AWARD TO DIXON-SPEAS, THIS ASPECT OF ITS PROTEST IS UNTIMELY AND IS DISMISSED.

REGARDING WADELL'S OBJECTION TO THE NAVY'S SELECTION PROCESS, WE NOTE THAT THIS WAS A PROCUREMENT OF A/E SERVICES, AND THE NAVY ADVISES THAT IT FOLLOWED THE SELECTION PROCEDURES FOR SUCH SERVICES SET FORTH AT DAR SEC. 18-401 ET SEQ., AND IMPLEMENTED BY THE NAVAL FACILITIES (NAVFAC) CONTRACT MANUAL AT PARAGRAPH 5-303. WE ARE FURTHER ADVISED THAT THESE PROCEDURES ARE ALL IN ACCORDANCE WITH THE BROOKS BILL, 40 U.S.C. 541 ET SEQ. (1976).

GENERALLY, THE BROOKS BILL PRESCRIBES THAT THE REQUIREMENT FOR A/E SERVICES BE PUBLICLY ANNOUNCED. THE CONTRACTING AGENCY THEN REVIEWS STATEMENTS OF QUALIFICATIONS AND PERFORMANCE DATA ALREADY ON FILE AND STATEMENTS SUBMITTED BY OTHER A/E FIRMS RESPONDING TO THE PUBLIC ANNOUNCEMENT. DISCUSSIONS MUST BE HELD WITH "NO LESS THAN THREE FIRMS REGARDING ANTICIPATED CONCEPTS AND THE RELATIVE UTILITY OF ALTERNATE METHODS OF APPROACH" FOR PROVIDING THE SERVICES REQUESTED. THE CONTRACTING AGENCY THEN RANKS IN ORDER OF PREFERENCE, BASED ON ESTABLISHED AND PUBLISHED CRITERIA, NO FEWER THEN THREE FIRMS CONSIDERED MOST QUALIFIED. NEGOTIATIONS ARE HELD WITH THE HIGHEST RANKED FIRM. IF THE PROCURING AGENCY IS UNABLE TO REACH AGREEMENT WITH THAT FIRM ON A FAIR AND EQUITABLE PRICE, NEGOTIATIONS ARE TERMINATED AND THE SECOND-RANKED FIRM IS INVITED TO SUBMIT ITS PROPOSED FEE. RANDOLPH ENGINEERING, INC., B-192375, JUNE 28, 1979, 79-1 CPD 465.

DAR SEC. 18-402.2(G) (1976 ED.) REQUIRES THAT THE SELECTION OF A/E FIRMS BE IN ACCORDANCE WITH THE POLICY ESTABLISHED BY THE BROOKS BILL AND THE EVALUATION CRITERIA ESTABLISHED IN ADVANCE FOR THE SELECTION. THE NAVFAC CONTRACT MANUAL AT PARAGRAPH 5-303.2 ALSO REQUIRES THAT, IN ACCORDANCE WITH THE BROOKS BILL, A/E REQUIREMENTS BE PUBLICIZED IN A NOTICE SETTING FORTH THE SIGNIFICANT SPECIFIC EVALUATION FACTORS TO BE APPLIED.

HERE, NOTICE OF THE PROJECT APPEARED IN THE CBD IN AN ANNOUNCEMENT WHICH SPECIFIED THE FOLLOWING EVALUATION CRITERIA:

PROFESSIONAL QUALIFICATIONS OF THE STAFF TO BE ASSIGNED TO THE PROJECT; RECENT SPECIALIZED EXPERIENCE OF THE FIRM IN PREPARATION OF AIR INSTALLATION COMPATIBLE USE ZONES (AICUZ) REPORTS; PAST EXPERIENCE OF THE FIRM WITH RESPECT TO PERFORMANCE ON DEPARTMENT OF DEFENSE CONTRACTS; PROFESSIONAL QUALIFICATIONS OF THE FIRM TO ACCOMPLISH THE CONTEMPLATED WORK WITHIN A MINIMUM REASONABLE TIME LIMIT; LOCATION OF THE FIRM IN THE GENERAL GEOGRAPHICAL AREA OF THE PROJECT; VOLUME OF WORK PREVIOUSLY AWARDED TO THE FIRM BY THE WESTERN DIVISION NAVAL FACILITIES ENGINEERING COMMAND.

NINE FIRMS RESPONDED BY SUBMITTING STATEMENTS OF THEIR QUALIFICATIONS ON STANDARD FORM 255, "ARCHITECT-ENGINEER AND RELATED SERVICES QUESTIONNAIRE FOR SPECIFIC PROJECT." FOLLOWING EVALUATION OF THESE FORMS, THE NAVY'S PRE-SELECTION BOARD RECOMMENDED THAT WADELL AND THREE OTHER FIRMS BE CONSIDERED FOR THE PROJECT.

THE NAVY'S SELECTION BOARD THEN INTERVIEWED EACH FIRM AND ON THAT BASIS EVALUATED THEIR EXPERIENCE AND CAPABILITIES. AFTER CONCLUDING INDIVIDUAL REVIEWS AND EVALUATIONS, A SECRET BALLOT BY THE VOTING MEMBERS OF THE BOARD RESULTED IN THE ELIMINATION OF WADELL FROM THE COMPETITION AND THE SELECTION OF DIXON-SPEAS AS THE MOST QUALIFIED OF THE THREE REMAINING FIRMS. THE RECOMMENDATION OF THE SECTION BOARD WAS APPROVED ON APRIL 17, 1980.

WADELL MAINTAINS THAT THE NAVY IMPROPERLY APPLIED THE EVALUATION CRITERIA. IN THIS REGARD, THE PROTESTER QUESTIONS THE AGENCY'S JUDGMENT THAT DIXON-SPEAS IS MORE QUALIFIED THAN WADELL IN TERMS OF EXPERIENCE, PROFESSIONAL STAFF, ABILITY TO PERFORM THE WORK WITHIN THE DESIGNATED TIME PERIOD, AND GEOGRAPHICAL LOCATION OF THE FIRM'S OFFICES IN PROXIMITY TO THE PROJECT SITE.

OUR REVIEW OF AN AGENCY'S JUDGMENT IN THESE MATTERS IS LIMITED TO EXAMINING WHETHER THE SELECTION OF THE A/E CONTRACTOR IS REASONABLE, BASED ON PUBLISHED CRITERIA AND IN ACCORD WITH THE POLICY EXPRESSED IN THE BROOKS BILL. SEE GRUZEN/GERSIN, B-195439, NOVEMBER 19, 1979, 79-2 CPD 362. IN THIS CASE, WE AGREE WITH THE PROTESTER THAT THE NAVY'S EVALUATION PROCESS IS SUBJECT TO QUESTION.

ALTHOUGH THE NAVY REPORTS THAT IT HAS PRESENTED US WITH A COMPLETE DESCRIPTION OF THE EVALUATION, AND THAT THE PROCEDURES EMPLOYED BY THE SELECTION BOARD MET THE REQUIREMENTS FOR A/E PROCUREMENTS, THE RECORD DOES NOT DEMONSTRATE THAT THE SELECTION WAS REASONABLE AND IN ACCORDANCE WITH THE ESTABLISHED AND PUBLISHED CRITERIA. WHILE THE CONTRACTING OFFICER'S "DETERMINATION AND FINDINGS" STATES GENERALLY THAT EVALUATION WAS BASED ON THE SELECTION CRITERIA, THERE IS NO DOCUMENTATION OF THE EVALUATORS' REASONS FOR SELECTING AND RANKING THE FIRMS WHICH APPEAR ON THE FINAL SLATE.

WE ARE ADVISED BY THE NAVY THAT SINCE THE SLATING AND SELECTION PROCEDURE INVOLVES INDIVIDUAL EVALUATION OF FIRMS TO BE SLATED AND A LISTING IN ORDER OF PRIORITY OF THE FIRMS FOR SELECTION, ALL DONE BY SECRET BALLOT, "SCORING SHEETS" OR DOCUMENTS OF THAT NATURE WILL NOT BE FOUND. THE NAVY CONTENDS THAT BECAUSE THE SLATING AND SELECTION ARE DONE BY ARCHITECTS AND ENGINEERS WHO ARE CALLED UPON TO EXERCISE THEIR PROFESSIONAL JUDGMENT IN APPLYING THE CRITERIA ANNOUNCED IN THE CBD, THE PROCESS IS NECESSARILY A HIGHLY SUBJECTIVE ONE WHICH DOES NOT LEND ITSELF TO REASONED STATEMENTS OF THE BASIS ON WHICH THE SELECTION IS MADE.

WE HAVE RECOGNIZED THAT TECHNICAL JUDGMENTS BY THEIR NATURE ARE OFTEN SUBJECTIVE; NONETHELESS, THE EXERCISE OF THESE JUDGMENTS IN THE EVALUATION OF PROPOSALS MUST BE REASONABLE AND MUST BEAR A RATIONAL RELATIONSHIP TO THE ANNOUNCED EVALUATION CRITERIA UPON WHICH COMPETING OFFERS ARE TO BE SELECTED. SEE BUNKER RAMO CORPORATION, 56 COMP.GEN. 712 (1977), 77-1 CPD 427. WE FAIL TO SEE THE DISTINCTION BETWEEN THE EXERCISE OF THESE JUDGMENTS IN THE SELECTION OF A-E CONTRACTORS AND THE SELECTION OF OTHER CONTRACTORS WHERE THE SUBJECTIVE JUDGMENTS OF AGENCY EVALUATORS ARE NECESSARILY INVOLVED.

IMPLICIT IN THE FOREGOING IS THAT THESE JUDGMENTS MUST BE DOCUMENTED IN SUFFICIENT DETAIL TO SHOW THAT THEY ARE NOT ARBITRARY. IN THIS REGARD, WE NOTE THAT THE NAVFAC CONTRACT MANUAL AT PARAGRAPH 5-303.5(E) REQUIRES THAT THE SELECTION BOARD'S RECOMMENDATION OF A PARTICULAR FIRM FOR SELECTION INCLUDE AN EXPLANATION OF THE REASONING ON WHICH SUCH RECOMMENDATION IS BASED. WE THEREFORE FIND NO MERIT TO THE NAVY'S POSITION.

WHERE, AS IN THIS CASE, THE RECORD BEFORE US IS DEVOID OF ANY SUPPORTING RATIONALE FOR THE SELECTION DECISION IN A NEGOTIATED PROCUREMENT, WE ARE UNABLE TO CONCLUDE THAT THE AGENCY HAD ANY RATIONAL BASIS FOR ITS DECISION. SEE, E.G., NATIONAL HEALTH INSURANCE, INC., B-186186, JUNE 23, 1976, 76-1 CPD 401. AS NOTED ABOVE, THE RECORD CONTAINS NOTHING MORE THAN A STATEMENT THAT THE EVALUATION WAS BASED ON THE PUBLISHED CRITERIA; WE SEE NO EXPLANATION AS REQUIRED BY THE NAVFAC MANUAL AND THE NAVY ADVISES THAT THERE IS IN FACT NO DOCUMENTATION IN EXISTENCE WHICH EXPLAINS THE EVALUATORS' REASONS FOR SELECTING AND RANKING THE FIRMS APPEARING ON THE FINAL SLATE. WE THEREFORE HAVE NO BASIS TO CONCLUDE THAT THE AGENCY'S SELECTION PROCESS WAS REASONABLE AND BASED ON THE PUBLISHED CRITERIA. ACCORDINGLY, THIS BASIS OF PROTEST IS SUSTAINED.

WADELL HAS STATED THAT THE AWARD OF THE CONTRACT, IN ITS OPINION, SHOULD HAVE BEEN MADE TO IT. HOWEVER, THE RECORD HAS NOT ESTABLISHED THAT WADELL WOULD HAVE BEEN ENTITLED TO THE AWARD BUT FOR THE NAVY'S FAILURE TO ESTABLISH A RATIONAL BASIS FOR THE SELECTION THAT WAS MADE. IT MAY BE, FOR EXAMPLE, THAT AN APPROPRIATELY DOCUMENTED RECORD WOULD SHOW THAT THE SELECTION WAS REASONABLE AND CONSISTENT WITH THE ANNOUNCED EVALUATION CRITERIA. MOREOVER, THERE ARE A NUMBER OF FACTORS INVOLVED IN OUR CONSIDERATION OF WHETHER TO RECOMMEND CORRECTIVE ACTION WHICH MIGHT ENTAIL TERMINATION OF AN IMPROPERLY AWARDED CONTRACT. SEE COHU, INC., 57 COMP.GEN. 759(1978), 78-2 CPD 175. THESE FACTORS INCLUDE THE EXTENT OF CONTRACT PERFORMANCE AND THE COST TO THE GOVERNMENT WHICH MIGHT RESULT FROM A TERMINATION. EMI MEDICAL, INC., 59 COMP.GEN. 269(1980), 80-1 CPD 153. HERE, APPROXIMATELY 40 PERCENT OF THE PERFORMANCE PERIOD HAS ALREADY ELAPSED AND THUS A SUBSTANTIAL PORTION OF THE $78,000 CONTRACT PRICE HAS ALREADY BEEN INCURRED. IN ADDITION, RECOMPETITION AT THIS TIME COULD ONLY DELAY THE COMPLETION OF THE PROJECT, AND WOULD LIKELY INCREASE THE COSTS AS A RESULT. WE THEREFORE DO NOT BELIEVE THAT THERE IS ANY PRACTICAL WAY WE CAN AFFORD ANY MEANINGFUL RELIEF IN THIS CASE. COHU, INC., SUPRA. WE ARE, NEVERTHELESS, RECOMMENDING TO THE NAVY BY LETTER OF TODAY THAT APPROPRIATE ACTION BE TAKEN ON THE BASIS OF THIS DECISION WITH RESPECT TO FUTURE PROCUREMENTS.