B-218255.3, AUG 19, 1985, 85-2 CPD 191
Highlights
OF PROTESTER'S COST BREAKDOWN FOR CERTAIN CONTRACT SERVICES IS NOT A BASIS FOR REVERSING PRIOR DECISION DENYING THE PROTEST WHERE. THE OUTCOME OF THE COMPETITION WOULD NOT HAVE CHANGED. AGENCY IS NOT REQUIRED TO ASSURE THAT ALL OFFERORS PROPOSE USING THE SAME NUMBER OF WORD PROCESSORS. WE FOUND PETRO'S OBJECTIONS TO THE SOLICITATION SPECIFICATION UNTIMELY SINCE THE FACTS ON WHICH THE ALLEGATIONS WERE BASED SHOULD HAVE BEEN APPARENT PRIOR TO EITHER THE INITIAL OR FINAL CLOSING DATE BUT WERE NOT RAISED UNTIL AFTER AWARD TO WBEC. PETRO'S BEST AND FINAL OFFER WAS ALMOST 20 PERCENT (APPROXIMATELY $700. 000 WAS AVAILABLE FOR RESERVOIR ENGINEERING COMPUTER SERVICES AND ASSOCIATED HARDWARE. BOTH COMPANIES QUESTIONED WHETHER THE FULL AMOUNT WAS NECESSARY.
B-218255.3, AUG 19, 1985, 85-2 CPD 191
CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED DIGEST: 1. AGENCY'S ALLEGED DISCLOSURE-- IN A BEST AND FINAL OFFER REQUEST SENT TO A COMPETITOR-- OF PROTESTER'S COST BREAKDOWN FOR CERTAIN CONTRACT SERVICES IS NOT A BASIS FOR REVERSING PRIOR DECISION DENYING THE PROTEST WHERE, EVEN IF THE COMPETITOR ADJUSTED ITS PROPOSAL BASED ON THE DISCLOSED INFORMATION, THE OUTCOME OF THE COMPETITION WOULD NOT HAVE CHANGED. CONTRACTS - NEGOTIATION - REQUESTS FOR PROPOSALS - SPECIFICATIONS - ADEQUACY - SCOPE OF WORK-SUFFICIENCY OR DETAIL 2. WHERE SOLICITATION DOES NOT REQUIRE THAT THE SPECIFIED SERVICES BE PERFORMED USING A CERTAIN NUMBER OF WORD PROCESSORS, AGENCY IS NOT REQUIRED TO ASSURE THAT ALL OFFERORS PROPOSE USING THE SAME NUMBER OF WORD PROCESSORS.
PETRO ENGINEERING, INC.-- RECONSIDERATION:
PETRO ENGINEERING, INC. (PETRO) REQUESTS RECONSIDERATION OF OUR DECISION IN PETRO ENGINEERING, INC., B-218255.2, JUNE 12, 1985, 85-1 CPD PARA. 677, DENYING THE COMPANY'S PROTEST AGAINST THE AWARD OF A COST- REIMBURSEMENT CONTRACT FOR TECHNICAL SERVICES AND TRAINING FOR THE GOVERNMENT OF MOROCCO'S OIL INDUSTRY TO WILLIAMS BROTHERS ENGINEERING COMPANY (WBEC) UNDER REQUEST FOR PROPOSALS (RFP) NO. 01,OCCO-84-001, ISSUED BY THE AGENCY FOR INTERNATIONAL DEVELOPMENT (AID). WE AFFIRM OUR PRIOR DECISION.
IN OUR PRIOR DECISION, WE FOUND PETRO'S OBJECTIONS TO THE SOLICITATION SPECIFICATION UNTIMELY SINCE THE FACTS ON WHICH THE ALLEGATIONS WERE BASED SHOULD HAVE BEEN APPARENT PRIOR TO EITHER THE INITIAL OR FINAL CLOSING DATE BUT WERE NOT RAISED UNTIL AFTER AWARD TO WBEC. WE ALSO FOUND NO MERIT IN PETRO'S CHALLENGE TO AID'S EVALUATION OF THE PROPOSALS. AID FOUND PETRO'S PROPOSAL IMPRESSIVE, BUT FOUND WBEC'S PROPOSAL STRONGER, AND PETRO'S BEST AND FINAL OFFER WAS ALMOST 20 PERCENT (APPROXIMATELY $700,000) MORE THAN WBEC'S.
PETRO NOW CONTENDS THAT WE ERRED IN OUR PRIOR DECISION IN FINDING NO SUPPORT FOR ANOTHER OF ITS ALLEGATIONS: THAT AID'S PROCUREMENT OFFICIALS IMPROPERLY DISCLOSED SOME OF PETRO'S COST DATA TO WBEC WHEN AID REQUESTED BEST AND FINAL OFFERS FROM THE TWO COMPANIES. BRIEFLY, THE RFP STATED THAT A SUM OF $140,000 WAS AVAILABLE FOR RESERVOIR ENGINEERING COMPUTER SERVICES AND ASSOCIATED HARDWARE, AND INSTRUCTED OFFERORS TO INCLUDE THIS AMOUNT IN THEIR PROPOSALS. PETRO AND WBEC DID INCLUDE THE $140,000 IN THEIR INITIAL PROPOSALS, BUT BOTH COMPANIES QUESTIONED WHETHER THE FULL AMOUNT WAS NECESSARY. DURING DISCUSSIONS, WBEC AND AID AGREED TO A REDUCTION IN THESE COSTS TO $115,000, AND PETRO AND AID AGREED TO A TOTAL OF $110,000. PETRO'S REDUCED TOTAL WAS BASED ON A BREAKDOWN PETRO PROPOSED DURING DISCUSSIONS: $10,000 FOR A COMPUTER PLUS PERIPHERALS; $30,000 FOR WORD PROCESSORS; $40,000 FOR SOFTWARE; AND $30,000 FOR OFFICE SUPPLIES. WBEC APPARENTLY DID NOT OFFER A COST BREAKDOWN FOR ITS $115,000 TOTAL.
AID'S REQUEST FOR WBEC'S BEST AND FINAL OFFER SET FORTH AS AMOUNTS NOT TO BE EXCEEDED THE ESTIMATED COSTS FOR THE FOUR CATEGORIES AS AGREED TO IN THE DISCUSSIONS WITH PETRO, RATHER THAN THE $115,000 TOTAL PRICE NEGOTIATED WITH WBEC. PETRO ALLEGES THAT THE INCLUSION OF THIS BREAKDOWN IN AID'S REQUEST FOR WBEC'S BEST AND FINAL OFFER CONSTITUTED AN IMPROPER DISCLOSURE OF PETRO'S COST ESTIMATES FOR THE COMPUTER SERVICES AND HARDWARE. THIS ARGUMENT DOES NOT PROVIDE A BASIS FOR REVERSING OUR DECISION.
WE FAIL TO SEE, AND PETRO DOES NOT EXPLAIN, HOW ANY DISCLOSURE OF PETRO'S CATEGORIZED PRICES FOR THIS REQUIREMENT COULD HAVE PREJUDICED PETRO BY ALTERING THE OUTCOME OF THE COMPETITION. PETRO'S BEST AND FINAL OFFER WAS APPROXIMATELY $700,000 HIGHER THAN WBEC'S, AND THE DIFFERENCE BETWEEN THE TWO FIRMS' TOTAL COSTS NEGOTIATED FOR THIS REQUIREMENT PRIOR TO THE ALLEGED DISCLOSURE IN THE BEST AND FINAL OFFER REQUEST WAS ONLY $5,000 ($115,000 VERSUS $110,000). THE ALLEGED DISCLOSURE THEREFORE OBVIOUSLY DID NOT CHANGE THE RELATIVE STANDING OF THE OFFERORS. SEE DELTA SUPPORT SERVICES, INC., B-214639.2, NOV. 26, 1984, 84-2 CPD PARA. 350.
PETRO ALSO SEEMS TO REQUEST RECONSIDERATION BASED ON THE FACT THAT IN REQUESTING BEST AND FINAL OFFERS, AID SPECIFIED THAT PETRO WAS TO PROVIDE THREE WORD PROCESSORS FOR $30,000 WHILE ASKING WBEC TO PROVIDE ONLY TWO WORD PROCESSORS FOR $20,000. WE FIND NOTHING IMPROPER IN THIS. IT IS THE OFFEROR'S RESPONSIBILITY, NOT THE AGENCY'S TO DETERMINE, AND THEN DEMONSTRATE IN ITS PROPOSAL, HOW IT WILL MEET THE GOVERNMENT'S REQUIREMENTS. SEE GENERALLY ANDERSON ENGINEERING AND TESTING CO., B-208632, JAN. 31, 1983, 83-1 CPD PARA. 99. THE RFP DID NOT REQUIRE THAT A CERTAIN NUMBER OF WORD PROCESSORS BE USED. THE RECORD SHOWS THAT DURING DISCUSSIONS, WBEC STATED TO AID THAT IT COULD PERFORM THE WORK USING TWO WORD PROCESSORS. IN DISCUSSIONS WITH PETRO, PETRO STATED THAT IT WOULD NEED THREE WORD PROCESSORS TO PERFORM. AID OBVIOUSLY WAS SATISFIED THAT EACH OFFEROR COULD PERFORM WITH THE PROPOSED NUMBER OF WORD PROCESSORS. AGAIN, MOREOVER, THE $10,000 IN COST REPRESENTED BY AN ADDITIONAL WORD PROCESSOR WOULD NOT HAVE CHANGED THE RELATIVE STANDING OF THE OFFERORS.
OUR DECISION IS AFFIRMED.