B-170890, OCT 5, 1971

B-170890, OCT 5, 1971

BID PROTEST - COMPETITIVE RANGE - SCORING SYSTEM AFFIRMING PRIOR DECISION WHICH DENIED PROTESTANT AGAINST CONTRACTING OFFICER'S DETERMINATION NOT TO CONDUCT DISCUSSIONS WITH TRANS-SONICS, INC. UNDER AN RFP ISSUED BY THE NAVAL AIR SYSTEMS COMMAND. WHILE THE NAVY USED A POINT EVALUATION SCALE IN RATING PROPOSALS WHICH STATED IN PART "3. BELOW STANDARD (SUSCEPTIBLE TO MAKING ACCEPTANCE)," AND PROTESTANT'S PROPOSAL RECEIVED A RATING OF 3.6, THE COMP. GEN. FINDS THAT THE NAVY WAS NOT NECESSARILY BOUND TO CONDUCT DISCUSSIONS WITH OFFERORS WHO RECEIVED A NUMERICAL RATING IN EXCESS OF 3 POINTS SIMPLY BECAUSE OF THE DESCRIPTION EMPLOYED. IN FACT, UNDER PRIOR DECISIONS, 50 COMP. GEN. 59 (1970) AND 49 COMP. GEN. 309 (1969) THE USE OF SUCH A PREDETERMINED SCORING SYSTEM FOR ACCEPTABILITY IS IMPROPER, AND UPON THE PRESENT RECORD, THERE APPEARS TO BE NO BASIS TO ALTER THE CONCLUSION THAT THE NAVY WAS JUSTIFIED IN REJECTING PROTESTANT'S PROPOSAL AS TECHNICALLY DEFICIENT.

TO ISRAEL & MANESS:

WE REFER TO YOUR LETTERS DATED NOVEMBER 30, 1970, AND FEBRUARY 1, 1971, WITH ENCLOSURES, ON BEHALF OF TRANS-SONICS, INCORPORATED, REQUESTING RECONSIDERATION OF OUR DECISION, B-170890, NOVEMBER 18, 1970, WHICH DENIED YOUR PROTEST WITH RESPECT TO REQUEST FOR PROPOSALS NO. N00019-70-Q-0181, ISSUED BY THE DEPARTMENT OF THE NAVY, NAVAL AIR SYSTEMS COMMAND.

OUR DECISION UPHELD THE DEPARTMENT OF THE NAVY'S DETERMINATION NOT TO CONDUCT DISCUSSIONS WITH TRANS-SONICS SINCE IT WAS CONCLUDED THAT ITS PROPOSAL WAS "NOT WITHIN THE COMPETITIVE RANGE, TECHNICAL AND OTHER FACTORS CONSIDERED." OUR DECISION RELIED PRIMARILY ON THE LOW TECHNICAL RATING GIVEN TRANS-SONICS' PROPOSAL UNDER SECTION "A" OF THE EVALUATION CRITERIA, "THE CONTRACTOR'S UNDERSTANDING OF THE SCOPE OF THE WORK AS SHOWN BY THE APPROACH PROPOSED."

YOU STATE THAT THE NAVY USED THE FOLLOWING POINT EVALUATION SCALE IN RATING PROPOSALS:

"1. UNACCEPTABLE (NO FURTHER CONSIDERATION)

3. BELOW STANDARD (SUSCEPTIBLE TO MAKING ACCEPTANCE)

5. MEETS STANDARD

7. EXCEEDS STANDARD

9. EXCEPTIONAL"

YOU STATE FURTHER THAT THE NAVY'S SOURCE SELECTION EVALUATION BOARD (SSEB) AWARDED TRANS-SONICS' PROPOSAL A RATING OF 3.6 FOR EVALUATION CRITERION "A". SINCE THE PROPOSAL WAS, THEREFORE, "SUSCEPTIBLE TO MAKING ACCEPTANCE" IT WAS WITHIN THE COMPETITIVE RANGE, MAKING FURTHER DISCUSSIONS WITH TRANS-SONICS MANDATORY.

WE DO NOT BELIEVE THAT THE NAVY WAS NECESSARILY BOUND TO CONDUCT DISCUSSIONS WITH OFFERORS WHO RECEIVED A NUMERICAL RATING IN EXCESS OF THREE (3) POINTS SIMPLY BECAUSE OF THE DESCRIPTION EMPLOYED. WE HAVE STATED IN PAST DECISIONS THAT THOSE OFFERS WITHIN A COMPETITIVE RANGE MUST BE DECIDED ON THE BASIS OF THE ACTUAL ARRAY OF SCORES ACHIEVED AND NOT ON A PREDETERMINED SCORE FOR ACCEPTABILITY. SEE B-171857, MAY 24, 1971, AND 50 COMP. GEN. 59 (1970). IN THE INSTANT CASE, TRANS-SONICS RECEIVED A NUMERICAL RATING OF LESS THAN ONE-HALF THAT OF THE ACCEPTABLE PROPOSAL. BASED ON THE ARRAY OF SCORES ACHIEVED, WE FIND NO BASIS TO OBJECT TO THE DETERMINATION THAT THE PROPOSAL WAS NOT WITHIN A COMPETITIVE RANGE. CONTRARY TO YOUR ALLEGATION, IT WOULD HAVE BEEN IMPROPER FOR THE NAVY TO DETERMINE THE COMPETITIVE RANGE BASED UPON A RIGID PREDETERMINED SCORING SYSTEM. ACCORDINGLY, WE FIND NO BASIS TO ALTER OUR CONCLUSION THAT THE NAVY WAS JUSTIFIED IN REJECTING TRANS SONICS' PROPOSAL AS TECHNICALLY DEFICIENT.

IN A PRIOR CASE, 49 COMP. GEN. 309 (1969), WE STATED THAT CATEGORIZATION OF PROPOSALS BY DECLINING DEGREES OF ACCEPTABILITY TO A POINT WHERE THE WORD "ACCEPTABLE" BECOMES SO DILUTED AS TO BECOME MEANINGLESS COMPLICATES AND RENDERS UNCERTAIN THE EXTENT OF "COMPETITIVE RANGE." THE SUPPLEMENTAL ADMINISTRATIVE REPORT INDICATES THAT THE USE OF SUCH QUALITATIVE PHRASES AS "SUSCEPTIBLE OF ACCEPTANCE" AND PREDETERMINED WEIGHTED SCORES BELOW WHICH A PROPOSAL WOULD BE CONSIDERED AS "BELOW ACCEPTABLE STANDARD" WILL BE ELIMINATED IN FUTURE PROCUREMENTS.

IN VIEW OF THE FOREGOING, NO PURPOSE WOULD BE SERVED BY CONSIDERING YOUR ALLEGATION THAT OTHER EVALUATION CRITERIA INVOLVED QUESTIONS OF CAPACITY TO PERFORM WHICH MUST BE JUDGED BY THE SMALL BUSINESS ADMINISTRATION. FOR THE REASONS STATED, OUR DECISION OF NOVEMBER 18, 1970, IS AFFIRMED.