B-176598, DEC 11, 1972

B-176598, DEC 11, 1972

BID PROTEST - DISCUSSIONS - COMPETITIVE RANGE DECISION DENYING THE PROTEST OF ALTEK ENGINEERING LTD., AGAINST AWARD OF A CONTRACT TO BOOZ-ALLEN APPLIED RESEARCH, INC. UNDER A RFQ ISSUED BY PICATINNY ARSENAL, DOVER, N.J. IT IS GENERALLY REQUIRED THAT DISCUSSIONS MUST BE HELD WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN THE COMPETITIVE RANGE, PRICE AND OTHER FACTORS SUCH AS TECHNICAL ACCEPTABILITY CONSIDERED, 10 U.S.C. 2304(G), ASPR 3-805.1(A). THE DETERMINATION OF THE COMPETITIVE RANGE, PARTICULARLY AS REGARDS TECHNICAL CONSIDERATIONS, IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION WHICH WILL NOT BE DISTURBED ABSENT A CLEAR SHOWING OF ARBITRARY ABUSE OF THIS DISCRETION. B-166052(1), MAY 20, 1969.

TO ALTEK ENGINEERING LTD.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 21, 1972, PROTESTING THE AWARD OF A CONTRACT TO BOOZ-ALLEN APPLIED RESEARCH, INCORPORATED, (BAAR) UNDER REQUEST FOR QUOTATIONS (RFQ) DAAA21-72-Q-0091, ISSUED ON MARCH 10, 1972, BY PICATINNY ARSENAL, DOVER, NEW JERSEY.

THE RFQ ISSUED TO 38 POTENTIAL OFFERORS SOLICITED TECHNICAL AND COST PROPOSALS FOR A COST-PLUS-INCENTIVE-FEE CONTRACT FOR AN ENGINEERING EFFORT FOR THE MODERNIZATION OF MATERIAL HANDLING METHODS IN FIVE GOVERNMENT LOAD, ASSEMBLE AND PACK PLANTS. A PRESOLICITATION CONFERENCE WAS HELD AT PICATINNY ARSENAL ON MARCH 20, 1972, BUT NO REPRESENTATIVE OF ALTEK ENGINEERING LTD. (ALTEK) WAS PRESENT. HOWEVER, MINUTES OF THAT MEETING WERE MAILED TO ALTEK.

PROPOSALS WERE RECEIVED FROM 12 FIRMS AND OPENED ON APRIL 10, 1972. EACH OF THESE PROPOSALS WAS SUBJECTED TO A TECHNICAL EVALUATION CONDUCTED BY 6 EVALUATORS ACTING INDEPENDENTLY ON THE BASIS OF EVALUATION FACTORS SET FORTH IN THE RFQ AND A PREVIOUSLY ESTABLISHED EVALUATION PLAN. CONDUCTING THE TECHNICAL EVALUATION, THE EVALUATORS WERE NOT INFORMED OF THE COST PROPOSALS SUBMITTED BY THE OFFERORS. AS A RESULT OF THE FINAL SCORING OF THE TECHNICAL EVALUATION, A COMPETITIVE RANGE WAS ESTABLISHED CONSISTING OF THE 5 FIRMS OBTAINING THE HIGHEST SCORE AND ALTEK AND 6 OTHER FIRMS WERE ELIMINATED FROM FURTHER COMPETITION. IN THIS REGARD, THE ARMY DETERMINED THAT ALTEK'S PROPOSAL WAS TECHNICALLY UNACCEPTABLE AND THUS WOULD NOT BE ADVANTAGEOUS TO THE GOVERNMENT REGARDLESS OF THE COST. THE TECHNICAL EVALUATION ESTABLISHED THAT ALTEK'S TECHNICAL PROPOSAL FAILED TO MEET ANY OF THE ESTABLISHED MINIMUM REQUIREMENTS OF THE SOLICITATION AND RANKED ALTEK'S PROPOSAL ELEVENTH OUT OF THE TWELVE FIRMS EVALUATED. YOU WERE ADVISED OF THE DETAILS OF THIS EVALUATION IN A DEBRIEFING AT PICATINNY ARSENAL ON SEPTEMBER 19, 1972.

THEREAFTER, NEGOTIATIONS WERE CONDUCTED WITH THE 5 FIRMS WITHIN THE COMPETITIVE RANGE AND THEY WERE PERMITTED TO REVISE THEIR COST OR TECHNICAL PROPOSALS UNTIL MAY 31, 1972, WHEN THEIR FINAL AND BEST OFFERS WERE DUE. THE FINAL OFFERS WERE SUBJECTED TO A "BEST BUY ANALYSIS" WHICH INVOLVED AN ANALYSIS OF BOTH TECHNICAL AND ESTIMATED COST PROPOSALS TO DETERMINE WHICH PROPOSAL WOULD BE MOST ADVANTAGEOUS TO THE GOVERNMENT. THIS BASIS BAAR WAS RECOMMENDED BY THE EVALUATORS AS HAVING THE PROPOSAL MOST ADVANTAGEOUS TO THE GOVERNMENT AND WAS AWARDED THE CONTRACT ON JUNE 28, 1972, AT A TOTAL ESTIMATED COST OF $282,172.

YOUR CONTENTION IS THAT SINCE THE ESTIMATED COST TO THE GOVERNMENT OF THE AWARD TO BAAR EXCEEDS ALTEK'S COST PROPOSAL OF $120,825 BY $161,347, NEGOTIATIONS SHOULD HAVE BEEN CONDUCTED WITH ALTEK IF FOR NO OTHER REASON THAN TO PROVIDE A BETTER BASIS FOR DETERMINING ALTEK'S RESPONSIBILITY AND RESPONSIVENESS.

BOTH 10 U.S.C. 2304(G) AND PARAGRAPH 3-805.1(A) OF THE ARMED SERVICES PROCUREMENT REGULATION GENERALLY REQUIRE THAT DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED. IN THIS REGARD, OUR OFFICE HAS HELD THAT THE TERM "OTHER FACTORS" INCLUDES THE TECHNICAL ACCEPTABILITY OF PROPOSALS AND THAT A PROPOSAL SHOULD BE REGARDED AS IN THE COMPETITIVE RANGE UNLESS IT IS SO TECHNICALLY DEFICIENT OR OUT OF LINE IN PRICE AS TO PRECLUDE FURTHER MEANINGFUL NEGOTIATIONS. B-170616, FEBRUARY 23, 1971. FURTHERMORE, WE HAVE HELD THAT THE DETERMINATION OF A COMPETITIVE RANGE, PARTICULARLY AS REGARDS TECHNICAL CONSIDERATIONS, IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION WHICH WILL NOT BE DISTURBED ABSENT A CLEAR SHOWING OF ARBITRARY ABUSE OF THIS DISCRETION. -166052(1), MAY 20, 1969, AND B 175331, MAY 10, 1972. ALTHOUGH WE BELIEVE THAT PRICE SHOULD BE CONSIDERED IN DETERMINING THE MOST ADVANTAGEOUS PROPOSAL FOR THE GOVERNMENT, WE HAVE RECOGNIZED THAT A PROPOSAL PROPERLY MAY BE CONSIDERED UNACCEPTABLE FOR NEGOTIATIONS BECAUSE OF FACTORS OTHER THAN PRICE, SUCH AS TECHNICAL UNACCEPTABILITY. SEE B-171305, JUNE 5, 1971. SINCE THE ARMY DETERMINED THAT ALTEK'S PROPOSAL DID NOT MEET ANY OF THE ESTABLISHED MINIMUM CRITERIA AND THE RECORD DOES NOT EVIDENCE, NOR HAVE YOU ALLEGED ANY ARBITRARINESS OR LACK OF GOOD FAITH ON THE PART OF THE ARMY, WE CANNOT CONCLUDE THAT ITS DETERMINATION THAT FURTHER NEGOTIATIONS WITH ALTEK WOULD NOT BE MEANINGFUL WAS IMPROPER.

IN ACCORDANCE WITH THE FOREGOING, YOUR PROTEST IS DENIED.