B-206228, JUN 28, 1982

B-206228: Jun 28, 1982

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DIGEST: DETERMINATION THAT PROPOSAL IS NOT TECHNICALLY ACCEPTABLE AND. NOT WITHIN THE COMPETITIVE RANGE IS WITHIN PROCURING AGENCY'S DISCRETION AND WILL NOT BE DISTURBED WHERE THE RECORD INDICATES THAT THE PROPOSAL DID NOT COMPLY WITH MANDATORY REQUIREMENTS OF SOLICITATION. THE RFP WAS FOR AN INVESTIGATION OF THE CAUSES. THE CONTRACTOR WAS REQUIRED TO FURNISH A REPORT ON THE INVESTIGATION AND TO GIVE TESTIMONY AT THE APPEAL OF ETC'S DELAY CLAIM BEFORE THE ARMED SERVICES BOARD OF CONTRACT APPEALS. TECHDYN'S PROPOSAL WAS THE LOWEST PRICE PROPOSAL SUBMITTED. THE SECOND LOW PROPOSAL WAS SUBMITTED BY TOUCHE ROSS & COMPANY (TOUCHE). AFTER TECHNICAL EVALUATION DLA NOTIFIED TECHDYN THAT ITS PROPOSAL WAS NOT WITHIN THE COMPETITIVE RANGE.

B-206228, JUN 28, 1982

DIGEST: DETERMINATION THAT PROPOSAL IS NOT TECHNICALLY ACCEPTABLE AND, THEREFORE, NOT WITHIN THE COMPETITIVE RANGE IS WITHIN PROCURING AGENCY'S DISCRETION AND WILL NOT BE DISTURBED WHERE THE RECORD INDICATES THAT THE PROPOSAL DID NOT COMPLY WITH MANDATORY REQUIREMENTS OF SOLICITATION. FACT THAT SOLICITATION DID NOT STATE PROPOSALS WOULD BE TECHNICALLY EVALUATED DOES NOT ALTER DECISION.

TECHDYN SYSTEMS CORPORATION:

TECHDYN SYSTEMS CORPORATION (TECHDYN) PROTESTS THE EXCLUSION FROM THE COMPETITIVE RANGE OF ITS PROPOSAL SUBMITTED IN RESPONSE TO REQUEST FOR PROPOSALS (RFP) NO. DLA 710-82-R-0008 ISSUED BY THE DEFENSE LOGISTICS AGENCY (DLA), COLUMBUS, OHIO.

THE RFP WAS FOR AN INVESTIGATION OF THE CAUSES, DURATION AND COSTS OF PRODUCTION DELAYS ENCOUNTERED BY ENVIRONMENTAL TECTRONICS CORPORATION (ETC) UNDER CONTRACT DLA 700-73-C-9495. UNDER THE RFP, THE CONTRACTOR WAS REQUIRED TO FURNISH A REPORT ON THE INVESTIGATION AND TO GIVE TESTIMONY AT THE APPEAL OF ETC'S DELAY CLAIM BEFORE THE ARMED SERVICES BOARD OF CONTRACT APPEALS.

TECHDYN'S PROPOSAL WAS THE LOWEST PRICE PROPOSAL SUBMITTED. THE SECOND LOW PROPOSAL WAS SUBMITTED BY TOUCHE ROSS & COMPANY (TOUCHE). AFTER TECHNICAL EVALUATION DLA NOTIFIED TECHDYN THAT ITS PROPOSAL WAS NOT WITHIN THE COMPETITIVE RANGE. AFTER NEGOTIATIONS WITH OFFERORS WITHIN THE COMPETITIVE RANGE, AWARD WAS MADE TO TOUCHE.

THE PROTESTER CONTENDS THAT DLA'S TECHNICAL REVIEW OF THE OFFERS WAS NOT PROPER BECAUSE THE RFP CONTAINED NO EVALUATION FACTORS BUT MERELY STATED THAT AWARD WOULD BE MADE TO THE LOW RESPONSIVE RESPONSIBLE OFFEROR. CONTENDING THAT IT WAS THE LOW RESPONSIVE AND RESPONSIBLE OFFEROR, THE PROTESTER REQUESTS CANCELLATION OF THE TOUCHE CONTRACT AND AWARD TO TECHDYN.

WE FIND NO BASIS TO QUESTION DLA'S COMPETITIVE RANGE DETERMINATION AND DENY THE PROTEST.

SECTION "C," PARTS I, II AND III OF THE RFP, DESCRIBES THE REQUIRED SERVICES. SECTION "C," PART V, ENTITLED "ADDITIONAL REQUIREMENTS (NOT EVALUATION FACTORS)," LISTS FOUR MANDATORY REQUIREMENTS. DLA EXPLAINS THAT THE PARENTHETICAL LANGUAGE WAS TO ALERT OFFERORS THAT A SCORING SYSTEM, NORMALLY USED IN PROFESSIONAL SERVICE SOLICITATIONS, WOULD NOT BE USED. PART VA)(3) REQUIRES OFFERORS TO INCLUDE EVIDENCE ESTABLISHING AT LEAST 4 YEARS EXPERIENCE IN PERFORMING SERVICES SIMILAR TO THOSE REQUIRED IN THE SOLICITATION AND EVIDENCE ESTABLISHING PERFORMANCE OF SIMILAR SERVICES ON AT LEAST FOUR PRIOR OCCASIONS. AFTER TECHNICAL EVALUATION, THE CONTRACTING OFFICER DETERMINED THAT THE INDIVIDUAL PROPOSED BY TECHDYN TO INVESTIGATE, REPORT AND TESTIFY DID NOT AND COULD NOT MEET THE EXPERIENCE REQUIREMENT. THEREFORE, TECHDYN'S PROPOSAL WAS DETERMINED NOT TECHNICALLY ACCEPTABLE AND OUTSIDE THE COMPETITIVE RANGE.

A PROPOSAL FOR A NEGOTIATED CONTRACT MAY BE EXCLUDED FROM THE COMPETITIVE RANGE WHEN IT HAS NO REASONABLE CHANCE OF BEING MADE ACCEPTABLE THROUGH NEGOTIATIONS. PETER J. T. NELSON, B-194728, OCTOBER 29, 1979, 79-2 CPD 302. THE DETERMINATION OF WHETHER A PROPOSAL IS WITHIN THE COMPETITIVE RANGE IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION. COMMONWEALTH RESEARCH GROUP, INC., B-202536.2, OCTOBER 6, 1981, 81-2 CPD 281. JGMA DEVELOPMENT CORPORATION, B-200754, MARCH 30, 1981, 81-1 CPD 234. WE WILL NOT DISTURB AN AGENCY'S DECISION ON COMPETITIVE RANGE ABSENT A CLEAR SHOWING OF UNREASONABLENESS, ARBITRARY ABUSE OF DISCRETION OR VIOLATION OF PROCUREMENT STATUTES AND REGULATIONS. NESHAMING VALLEY INFORMATION PROCESSING, INC., B-201336, JULY 20, 1981, 81-2 CPD 52; JOULE TECHNICAL CORPORATION, B-197249, SEPTEMBER 30, 1980, 80-2 CPD 231.

WE FIND NO MERIT IN THE PROTESTER'S ARGUMENT THAT THE TECHNICAL EVALUATION WAS NOT PROPER. ALTHOUGH THE RFP PARENTHETICAL LANGUAGE "NOT EVALUATION FACTORS" WAS AN UNFORTUNATE CHOICE OF LANGUAGE, WE WILL NOT APPLY THE INTERPRETATION SUGGESTED BY TECHDYN WHICH ELEVATES FORM OVER SUBSTANCE. DLA CLEARLY INTENDED TO CONDUCT A NEGOTIATED PROCUREMENT. GENERALLY, THE CONCEPT OF RESPONSIVENESS, WHETHER A BID CONFORMS WITH ALL MATERIAL TERMS AND CONDITIONS OF A FORMALLY ADVERTISED SOLICITATION, DOES NOT APPLY DIRECTLY TO NEGOTIATED PROCUREMENTS. HOWEVER, THE TERM RESPONSIVENESS MAY BE USED IN A NEGOTIATED PROCUREMENT TO INDICATE THAT CERTAIN TERMS AND CONDITIONS ARE MATERIAL AND THAT A PROPOSAL THAT FAILS TO CONFORM TO THEM MAY BE CONSIDERED UNACCEPTABLE. CENTER FOR EMPLOYMENT TRAINING, B-203555, MARCH 17, 1982, 82-1 CPD 252. TO BE RESPONSIVE AN OFFEROR HAD TO MEET THE RFP'S ADDITIONAL REQUIREMENTS. UNDER THE RFP IN QUESTION THE PROTESTER FAILED TO SATISFY THE MANDATORY EXPERIENCE REQUIREMENTS. IF AN OFFEROR'S PROPOSAL DOES NOT CLEARLY ESTABLISH THAT WHAT IT PROPOSES WILL MEET THE GOVERNMENT'S NEEDS, THEN THAT OFFEROR SHOULD NOT EXPECT TO BE CONSIDERED FOR AWARD. MUTUAL OF OMAHA INSURANCE COMPANY, B-201710, JANUARY 4, 1982, 82-1 CPD 2.

IN JOULE TECHNICAL CORPORATION, SUPRA, THE RFP INCLUDED A LICENSE REQUIREMENT IN A STATEMENT OF THE MINIMUM EXPERIENCE AND EDUCATION NECESSARY FOR CREW MEMBERS OF A NAVAL TEST RANGE. THE LICENSE REQUIREMENT WAS USED TO DETERMINE THE TECHNICAL ACCEPTABILITY OF THE PERSONNEL PROPOSED. WE HELD THAT THE FAILURE TO PROPOSE PERSONNEL MEETING THE LICENSE REQUIREMENT WAS A LEGITIMATE BASIS FOR THE ASSESSMENT OF A DEFICIENCY AND EXCLUSION FROM THE COMPETITIVE RANGE. HERE, DLA DETERMINED THAT BECAUSE TECHDYN DID NOT AND COULD NOT MEET THE EXPERIENCE REQUIREMENT OF THE RFP, IT DID NOT HAVE A REASONABLE CHANCE OF BEING SELECTED FOR THE FINAL AWARD. THE FAILURE OF TECHDYN TO PROPOSE PERSONNEL MEETING THE EXPERIENCE REQUIREMENT PROVIDED A RATIONAL BASIS FOR THE AGENCY'S DECISION TO EXCLUDE THE PROTESTER'S PROPOSAL FROM THE COMPETITIVE RANGE.

WE BELIEVE THAT THE RFP PROVISIONS WERE SUFFICIENT TO PUT PROSPECTIVE OFFERORS ON NOTICE THAT A PROPOSAL WHICH DID NOT MEET THE EXPERIENCE REQUIREMENT WOULD NOT BE "RESPONSIVE," AND WOULD BE EXCLUDED FROM COMPETITION. WE CANNOT CONCLUDE THAT THE AGENCY'S EVALUATION THAT THE PROTESTER WAS NOT WITHIN THE COMPETITIVE RANGE WAS UNREASONABLE.

WE DENY THE PROTEST.

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