B-187253, MARCH 15, 1977

B-187253, MARCH 15, 1977

CLAIMANT IS NOT ENTITLED TO RECOVER PROPOSAL PREPARATION COSTS WHERE RECORD DOES NOT SHOW THAT AGENCY'S REJECTION OF OFFEROR'S PROPOSAL WAS DELIBERATE OR ARBITRARY NOTWITHSTANDING DEFICIENCIES NOTED IN AGENCY'S NEGOTIATION PROCEDURES.

AMRAM NOWAK ASSOCIATES, INC.:

THIS DECISION INVOLVES THE CLAIM OF AMRAM NOWAK ASSOCIATES, INC. (NOWAK) FOR BID PREPARATION COSTS IN THE AMOUNT OF $500.00. IN OUR DECISION OF NOVEMBER 29, 1976, 76-2 CPD 454 THIS OFFICE FOUND THAT THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD) HAD ERRED IN NOT CONDUCTING UNDER THE CIRCUMSTANCES THEREIN PRESENTED, MEANINGFUL DISCUSSIONS WITH NOVAK PRIOR TO ACCEPTING ANOTHER PROPOSAL AT A HIGHER PRICE AND THAT ITS SOLICITATION WAS REASONABLY SUBJECT TO DIFFERENT INTERPRETATIONS. HOWEVER, BECAUSE THE CONTRACT HAD BEEN COMPLETED, WAS NOT ILLEGAL AND THE RECORD REFLECTED NO DELIBERATE OR ARBITRARY ATTEMPT TO DISQUALIFY NOWAK, NO REMEDIAL ACTION WAS RECOMMENDED OTHER THAN THAT HUD INSURE THAT SUCH PROCUREMENT DEFICIENCIES NOT BE REPEATED.

THE STANDARD FOR DETERMINING WHETHER TO ALLOW RECOVERY OF PROPOSAL PREPARATION COSTS IS WHETHER THE PROCURING AGENCY'S ACTIONS WERE ARBITRARY AND CAPRICIOUS TOWARD THE REJECTED OFFEROR. T & H COMPANY, B-181261, JUNE 9, 1975, 499 F.2D 633 (CT.CL. 1974). WE THINK THAT THE DEFICIENCIES NOTED IN THIS CASE WERE SIGNIFICANT AND IMPROPER BUT AS THE DECISION OF NOVEMBER 29, 1976 NOTES, WE ARE UNABLE TO FIND A DELIBERATE OR ARBITRARY ATTEMPT TO DISQUALIFY NOWAK. AT WORST, THE HUD EVALUATORS APPEAR TO HAVE BEEN IN ERROR AS TO THE CLARITY OF THE SOLICITATION AND CONFUSED AS TO WHAT CONSTITUTES ORAL OR WRITTEN DISCUSSIONS AS PROVIDED IN FEDERAL PROCUREMENT REGULATIONS SEC. 1-3.805 1(A).

UNDER THE CIRCUMSTANCES, NOWAK'S CLAIM FOR BID PREPARATION COSTS IS DENIED.