B-171305, SEP 2, 1971

B-171305, SEP 2, 1971

BID PROTEST - COMPETITIVE RANGE - TECHNICAL ACCEPTABILITY REAFFIRMING PRIOR DECISION DENYING PROTEST OF DEVELOPMENTS AND APPLICATIONS, INC., AGAINST THE AWARD OF A CONTRACT FOR LABOR & SUPPLIES FOR A HIGH ALTITUDE PLATFORM STUDY UNDER AN RFQ ISSUED BY THE ARMY SAFEGUARD SYSTEM COMMAND, HUNTSVILLE, ALABAMA TO ANOTHER FIRM AND THE REJECTION OF ITS PROPOSAL AS TECHNICALLY UNACCEPTABLE. THE COMP. GEN. FINDS NO REASON TO TAKE ISSUE WITH THE DETERMINATION THAT PROTESTANT'S PROPOSAL WAS TECHNICALLY UNACCEPTABLE AND, THEREFORE, WAS NOT WITHIN THE COMPETITIVE RANGE. COPIES OF THIS DECISION HAVE BEEN SENT TO SEN. JAMES L. BUCKLEY AND REP. WILLIAM F. LENT.

TO MR. LEWIS FELDMAN:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 23, 1971, REQUESTING RECONSIDERATION OF OUR DECISION OF JUNE 8, 1971, WHICH DENIED YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER REQUEST FOR QUOTATIONS (RFQ) NO. DAHC60-70-Q-0180, ISSUED BY THE UNITED STATES ARMY SAFEGUARD SYSTEM COMMAND, HUNTSVILLE, ALABAMA.

IN OUR PRIOR DECISION WE CONCLUDED THAT NO LEGAL BASIS EXISTED TO DISAGREE WITH THE DETERMINATION OF THE PROCUREMENT ACTIVITY THAT YOUR PROPOSAL WAS TECHNICALLY UNACCEPTABLE AND, HENCE, INELIGIBLE FOR AWARD. WHILE YOU STILL TAKE ISSUE WITH THIS DETERMINATION, AS CONFIRMED BY AN ENGINEER ON OUR STAFF, WE FIND NO REASON, UPON A CAREFUL RE-REVIEW OF THE RECORD, TO DISAGREE WITH THE DETERMINATION THAT YOUR FIRM WAS NOT WITHIN A COMPETITIVE RANGE AND, THUS, NOT ENTITLED TO NEGOTIATION OPPORTUNITY AS A PROSPECTIVE CONTRACTOR. IN THIS RESPECT, WE AGAIN DRAW YOUR ATTENTION TO B-169671(1) OF AUGUST 31, 1970, COPY HEREWITH, CITED ON PAGE 3 OF THE DECISION.

CONCERNING THE PROPOSED UTILIZATION OF NATIONAL AERONAUTICS AND SPACE ADMINISTRATION TEST FACILITIES BY NIELSEN ENGINEERING & RESEARCH, INC., WE MUST OBSERVE THAT UNDER THE PRINCIPLES OF COMPETITIVE NEGOTIATION IT IS PROPER TO DEVIATE FROM THE STRICT LANGUAGE OF THE RFQ DEALING WITH GROUND TEST REQUIREMENTS IF ALL OFFERORS IN A COMPETITIVE RANGE ARE GIVEN AN OPPORTUNITY TO RESPOND TO THE CHANGED TEST REQUIREMENTS. THERE IS NOTHING IN THE RECORD WHICH INDICATES THAT THE TWO ELIGIBLE OFFERORS (TELEDYNE RYAN AERONAUTICAL AND NIELSEN) WERE TREATED UNEQUALLY INSOFAR AS TEST FACILITIES ARE CONCERNED. IN ANY EVENT, NO PREJUDICE RESULTED TO YOUR FIRM SINCE ITS PROPOSAL WAS NOT WITHIN A COMPETITIVE RANGE FOR NEGOTIATION PURPOSES.

FURTHER, WE CANNOT AGREE THAT THE FAILURE TO TIMELY NOTIFY YOUR FIRM OF THE ACCEPTABILITY OF ITS PROPOSAL, AS CONTEMPLATED BY PARAGRAPH 3 805.2 OF THE ARMED SERVICES PROCUREMENT REGULATION, PREVENTED AN AWARD TO YOUR FIRM. AS STATED PREVIOUSLY, YOUR FIRM WAS NOT ELIGIBLE FOR AWARD AND ITS INELIGIBILITY WAS UNAFFECTED BY AN ADMINISTRATIVE FAILURE TO TIMELY COMPLY WITH THE PROCEDURAL NOTICE REQUIREMENT.

ACCORDINGLY, UPON REVIEW, WE FIND NO BASES TO CONCLUDE THAT OUR PRIOR DECISION WAS ERRONEOUS IN FACT OR LAW.