B-201487, JUN 2, 1981

B-201487: Jun 2, 1981

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ALLEGATION THAT PROTESTER'S PROPOSAL WAS IMPROPERLY DETERMINED TECHNICALLY UNACCEPTABLE IS DENIED WHERE RECORD DEMONSTRATES THAT AGENCY DETERMINATION WAS REASONABLE SINCE PROTESTER'S PROPOSAL DID NOT RESPOND ADEQUATELY TO RFP REQUIREMENTS. 2. PROTESTER'S LOWER COST IS NOT BASIS TO CONSIDER ITS TECHNICALLY UNACCEPTABLE OFFER. SINCE ONCE OFFER IS PROPERLY ELIMINATED AS TECHNICALLY UNACCEPTABLE. IT IS IRRELEVANT WHETHER IT MIGHT PROVIDE LOWER COST. DYNAMIC ALSO CONTENDS THAT IT WAS IN THE GOVERNMENT'S INTEREST TO AWARD TO DYNAMIC AT ITS PRICE WHICH WAS LOWER THAN THAT OFFERED BY REHAB. WE HAVE HELD THAT PROCURING OFFICIALS ENJOY A REASONABLE DEGREE OF DISCRETION IN THE EVALUATION OF PROPOSALS AND SUCH DISCRETION MUST NOT BE DISTURBED UNLESS SHOWN TO BE ARBITRARY OR IN VIOLATION OF PROCUREMENT STATUTES AND REGULATIONS.

B-201487, JUN 2, 1981

DIGEST: 1. ALLEGATION THAT PROTESTER'S PROPOSAL WAS IMPROPERLY DETERMINED TECHNICALLY UNACCEPTABLE IS DENIED WHERE RECORD DEMONSTRATES THAT AGENCY DETERMINATION WAS REASONABLE SINCE PROTESTER'S PROPOSAL DID NOT RESPOND ADEQUATELY TO RFP REQUIREMENTS. 2. PROTESTER'S LOWER COST IS NOT BASIS TO CONSIDER ITS TECHNICALLY UNACCEPTABLE OFFER, SINCE ONCE OFFER IS PROPERLY ELIMINATED AS TECHNICALLY UNACCEPTABLE, IT IS IRRELEVANT WHETHER IT MIGHT PROVIDE LOWER COST.

DYNAMIC KEYPUNCH INCORPORATED:

DYNAMIC KEYPUNCH INCORPORATED (DYNAMIC) PROTESTS THE REJECTION OF ITS PROPOSAL BY THE FEDERAL TRADE COMMISSION (FTC) FOR THE ALLEGED FAILURE OF DYNAMIC TO ADEQUATELY RESPOND TO REQUEST FOR PROPOSALS (RFP) 11-80, ISSUED BY THE FTC, AND THE AWARD OF THE CONTRACT TO ANOTHER OFFEROR, REHAB GROUP, INC. (REHAB).

DYNAMIC ARGUES THAT IT SUBMITTED AN ACCEPTABLE PROPOSAL. DYNAMIC ALSO CONTENDS THAT IT WAS IN THE GOVERNMENT'S INTEREST TO AWARD TO DYNAMIC AT ITS PRICE WHICH WAS LOWER THAN THAT OFFERED BY REHAB. DYNAMIC'S PROTEST ESSENTIALLY CHALLENGES THE FTC'S TECHNICAL EVALUATION THAT DYNAMIC'S BEST AND FINAL OFFER DID NOT SATISFY THE RFP REQUIREMENTS.

WITH RESPECT TO THE TECHNICAL EVALUATION, WE HAVE HELD THAT PROCURING OFFICIALS ENJOY A REASONABLE DEGREE OF DISCRETION IN THE EVALUATION OF PROPOSALS AND SUCH DISCRETION MUST NOT BE DISTURBED UNLESS SHOWN TO BE ARBITRARY OR IN VIOLATION OF PROCUREMENT STATUTES AND REGULATIONS. PACIFIC CONSULTANTS, INC., B-198706, AUGUST 18, 1980, 80-2 CPD 129. OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE PROCURING AGENCY BY MAKING AN INDEPENDENT DETERMINATION. JOHN M. COCKERHAM & ASSOCIATES, INC.; DECISION PLANNING CORPORATION, B-193124, MARCH 14, 1979, 79-1 CPD 180. ADDITIONALLY, THE BURDEN IS ON THE OFFEROR TO CLEARLY DEMONSTRATE THE MERITS OF ITS PROPOSAL OR RUN THE RISK OF HAVING THE PROPOSAL REJECTED. LOGICON, INC., B-196105, MARCH 25, 1980, 80-1 CPD 218.

DYNAMIC DISAGREES WITH THE FTC'S CONCLUSION THAT IT DID NOT MEET THE RFP REQUIREMENTS AND STATES THAT ITS PROPOSAL ADEQUATELY DEMONSTRATED ITS ABILITY TO PERFORM THE WORK. DYNAMIC CONTENDS THAT ALTHOUGH ITS RESPONSES WERE BRIEF, THEY WERE TO THE POINT.

FTC REFERS TO SEVEN RFP REQUIREMENTS TO WHICH DYNAMIC FAILED TO ADEQUATELY RESPOND. THE RECORD INDICATES THAT THE FOLLOWING FOUR RFP REQUIREMENTS WERE NOT ADDRESSED AT ALL IN DYNAMIC'S PROPOSAL: (1) THE REQUIREMENT FOR THE PREPARATION OF OR NEED FOR KEYING INSTRUCTIONS; (2) THE PROVISION FOR ENSURING THE CONFIDENTIALITY AND SECURITY OF DATA; (3) A DISCUSSION OF ANY POTENTIAL CONFLICT OF INTEREST CONCERNING THE VENDOR'S WORK; AND (4) THE REQUIREMENT TO ENSURE QUALITY CONTROL. UNDER THESE CIRCUMSTANCES, WE CANNOT SAY THAT THE FTC'S DECISION TO REJECT DYNAMIC'S PROPOSAL WAS UNREASONABLE. THE FACT THAT THE PROTESTER DOES NOT AGREE WITH THE AGENCY'S EVALUATION OF ITS PROPOSAL DOES NOT RENDER THE EVALUATION UNREASONABLE. DEL RIO FLYING SERVICE, INC., B-197448, AUGUST 6, 1980, 80-2 CPD 92.

WITH REGARD TO THE ALLEGATION THAT THE AWARD TO REHAB RESULTED IN GREATER COST TO THE GOVERNMENT FOR THE WORK, OUR OFFICE HAS HELD THAT, ONCE AN OFFER HAS PROPERLY BEEN DETERMINED TO BE TECHNICALLY UNACCEPTABLE, A LOWER PRICE WHICH THAT OFFER MIGHT PROVIDE IS IRRELEVANT SINCE THE OFFER CANNOT BE CONSIDERED FOR THE AWARD. LOGICON, INC., SUPRA. THUS, THIS ALLEGATION IS WITHOUT MERIT.

THE PROTEST IS DENIED.