Matter of: Caldwell Consulting Associates File: B-252590 93-2 CPD 94 Date: July 13, 1993

B-252590: Jul 13, 1993

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PROCUREMENT Competitive Negotiation Offers Competitive ranges Exclusion Administrative discretion Contracting agency properly excluded from the competitive range a quotation which the agency properly concluded had no reasonable chance for award since technically it was ranked 11 out of the 12 quotations submitted and it was only the fifth low in price. The agency terminated that contract because the award was improperly made on an initial proposal basis to other than the low priced offeror in violation of Federal Acquisition Regulation (FAR) Sec. 15.610(a)(3). The RFQ states that award is to be made to the firm whose quotation. Is determined to be in the best interests of the government. Caldwell's quotation was given a total combined score (technical and price) of 346.43 compared to scores of 422.74 to 465.85 for the four quotations included in the competitive range.

Matter of: Caldwell Consulting Associates File: B-252590 93-2 CPD 94 Date: July 13, 1993

PROCUREMENT Competitive Negotiation Offers Competitive ranges Exclusion Administrative discretion Contracting agency properly excluded from the competitive range a quotation which the agency properly concluded had no reasonable chance for award since technically it was ranked 11 out of the 12 quotations submitted and it was only the fifth low in price.

Attorneys

DECISION Caldwell Consulting Associates protests the rejection of its quotation submitted in response to request for quotations (RFQ) No. 433- 93010, issued by the Federal Bureau of Prisons (BOP) for development and production of a self-study manual.

We deny the protest.[1]

The BOP first attempted to meet this requirement by issuing request for proposals (RFP) No. 433-0001 and awarding a contract to Creative Courseware, Inc. After a protest by Caldwell, the agency terminated that contract because the award was improperly made on an initial proposal basis to other than the low priced offeror in violation of Federal Acquisition Regulation (FAR) Sec. 15.610(a)(3). The BOP then issued the RFQ which includes the same statement of work as the RFP and permitted offerors under the original solicitation to resubmit their proposals or to submit revised quotations.

The RFQ states that award is to be made to the firm whose quotation, conforming to the solicitation, is determined to be in the best interests of the government, price and other factors considered. The RFQ includes the following nonprice evaluation factors, listed in descending order of importance: organizational experience, capability to perform, personnel qualifications and experience, and quality control plan. The RFQ also states that "[t]echnical content comprises 65 percent of the total points possible" and "[p]rice comprises 35 percent of the total points possible."

The BOP received 12 quotations in response to the RFQ. The agency created a competitive range consisting of four firms, not including Caldwell. Caldwell's quotation was given a total combined score (technical and price) of 346.43 compared to scores of 422.74 to 465.85 for the four quotations included in the competitive range. Based on its total score, Caldwell's quotation was ranked 7 out of the 12 submitted. Technically, Caldwell was ranked 11 out of the 12 firms and its price was the fifth low.

The agency reports that it excluded Caldwell from the competitive range as a result of weaknesses in its technical quotation and as a result of the overall superiority of the four quotations included in the competitive range. According to the agency, the evaluators concluded that Caldwell's quotation was superficial and generally lacked detailed responses to the requirements of the solicitation. The agency also notes that Caldwell took exception to the delivery date specified in the statement of work by offering completion of the project in 120 days instead of the required 90 days. The agency evaluators also were concerned that Caldwell submitted a minimal number of work samples with its quotation.

Caldwell primarily argues that its quotation should not have been excluded from the competitive range since the same technical submission had not been excluded from the competition under the preceding RFP. Caldwell notes that the proposal it submitted in the preceding procurement had received an overall score of 393.93, compared to a score of 417.92 for the original awardee; Caldwell also notes that, in the prior procurement, its overall score was the fourth highest of the 25 proposals submitted. Caldwell states that it submitted the same proposal in this procurement that it had submitted under the preceding RFP, along with updated supporting materials, and argues that it is unreasonable for the agency to now exclude its quotation from consideration.

The FAR provides that the competitive range must include all proposals that have a reasonable chance of being selected for award and that any doubt as to whether a proposal is in the competitive range should be resolved by inclusion. FAR Sec. 15.609(a). The determination of whether a proposal is in the competitive range is principally a matter within the reasonable exercise of discretion of the procuring agency. National Sys. Mgmt. Corp., 70 Comp.Gen. 443 (1991), 91-1 CPD Para. 408. Generally, a proposal is to be included in the competitive range if it is technically acceptable or reasonably susceptible to being made acceptable through discussions. ALM, Inc.; Technology Inc., B-217284; B-217284.2, Apr. 16, 1985, 85-1 CPD Para. 433. Nonetheless, even a proposal which is technically acceptable or susceptible of being made acceptable may be excluded from the competitive range if, based upon a comparison of all offers received, the proposal does not stand a realistic chance of being selected for award. Id.

Here, we conclude that the BOP reasonably excluded Caldwell from the competitive range based on various weaknesses and deficiencies in its quotation and based on the fact that Caldwell did not have a reasonable chance for award. As explained, the evaluators were concerned that Caldwell submitted a minimal number of work samples with its quotation and noted that Caldwell took exception to the required delivery schedule. Further, Caldwell's quotation was technically ranked 11 out of the 12 quotations submitted and was ranked fifth on the basis of price; all four of the quotations which were included in the competitive range were ranked higher than Caldwell technically and were lower in price. On this record, we conclude that the agency reasonably determined that Caldwell did not stand a real chance for award.

The agency's treatment of Caldwell's proposal under the earlier RFP does not require that its quotation be included in the competitive range. According to Caldwell, since its proposal was acceptable under the RFP and it submitted the same proposal under the RFQ, its quotation should have been considered acceptable and included in the competitive range. However, the scores assigned to Caldwell under the RFP and its ranking under that solicitation have no bearing on the competitive range under the RFQ. While Caldwell did not change its proposal, the relative standing of that proposal (and whether or not it has a realistic chance for award) depends upon the competing technical and price proposals received under the new solicitation. Each acquisition stands on its own, and the evaluation and relative ranking under the earlier procurement do not govern competitive standing under this procurement. Renic Corp., Gov't Sys. Div., B-248100, July 29, 1992, 92-2 CPD Para. 60.

Caldwell also argues that the BOP violated applicable regulations by failing to advise the firm of deficiencies and weaknesses in its proposal. Caldwell notes that FAR Sec. 15.610(c) requires the contracting officer to advise an offeror of deficiencies in its quotation and attempt to resolve any technical uncertainties. As explained, Caldwell's quotation was properly excluded from the competitive range since it did not have a real chance for award. There is no obligation to conduct discussions with an offeror whose quotation is properly excluded from the competitive range. Zell Partners, Ltd., B-248489, Aug. 31, 1992, 92-2 CPD Para. 141.

Finally, Caldwell argues that BOP contracting officials should not have solicited Caldwell since they did not intend to consider the firm for award. Caldwell states that nothing changed in its submission from the RFP and argues that contracting officials must have known based on Caldwell's submission in the earlier procurement that they would not consider Caldwell for award. Caldwell argues that agency officials acted in bad faith since they failed to notify Caldwell at the earliest possible time that it was not eligible for award.

Prejudicial motives will not be attributed to contracting officials on the basis of unsupported allegations, inference and supposition. Systems & Processes Eng'g Corp., B-232100, Nov. 15, 1988, 88-2 CPD Para. 478. Here, agency officials solicited Caldwell and evaluated its quotation as they were required. Although Caldwell argues that BOP officials had no intention of awarding a contract to Caldwell, there is no evidence in the record of any bias against Caldwell or in favor of any other offeror. Caldwell merely infers bias and bad faith based on the exclusion of its quotation from the competitive range. Such inference and supposition is insufficient to prove Caldwell's claim. Monarch Enters., Inc., B-233303 et al., Mar. 2, 1989, 89-1 CPD Para. 222.

The protest is denied.

1. Since award has not yet been made, our discussion of the evaluation and of the quotations submitted by other firms is necessarily limited.