Contention That Proposal Should Not Have Been Excluded From the Competitive Range

B-204871: Mar 19, 1982

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Ralph O. White
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Kenneth E. Patton
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A firm protested the National Park Service's (NPS) award of a contract for archeological services to another company. The protester argued that its proposal should not have been excluded from the competitive range and that it should have been given an opportunity to revise and clarify the proposal. The protester also criticized the winning proposal and requested that GAO evaluate and compare its proposal with that of the awardee. In addition, the protester complained about the composition of the technical evaluation committee (TEC) and protested the NPS failure to release the breakdown of the technical evaluation scores of the proposals. The NPS solicitation provided very clear and specific guidelines for the preparation of technical proposals. After evaluating the protester's proposal, TEC determined that it was unacceptable without extensive revision, which, if permitted, would have amounted to the submission of a new proposal. Based upon the TEC evaluation, the contracting officer determined that the protester's proposal was technically unacceptable and outside the competitive range. Regarding the protester's request that GAO evaluate its proposal in comparison to the awardee's, it is neither the function nor the practice of GAO to conduct independent technical evaluations of proposals. GAO determined that the protester's contention that it should have been permitted to revise and clarify its proposal was essentially an objection to being excluded from the competive range, and an agency is not required to hold discussions with an offeror whose proposal has been properly determined to be outside the competitve range. Regarding the protester's complaint about the composition of TEC, GAO has consistently held that the composition of a technical evaluation panel is within the discretion of the contracting agency, and GAO will not object to it in the absence of fraud, bad faith, conflict of interest, or actual bias. Finally, the protester objected to the NPS failure to respond to its requests under the Freedom of Information Act (FOIA) to release information on the technical evaluation point scores; however, GAO has no authority under the FOIA to determine what information must be disclosed by Government agencies. Accordingly, the protest was denied.