B-215290, OCT 26, 1984, 84-2 CPD 469
Highlights
THE GENERAL ACCOUNTING OFFICE WILL CONSIDER A PROTEST THAT A PROPOSAL HAS BEEN IMPROPERLY EVALUATED UNDER AN RFP EVEN THOUGH THE RESULT MAY BE A SOLE-SOURCE PROCUREMENT. OUR OFFICE WILL NOT QUESTION A CONTRACTING OFFICER'S TECHNICAL EVALUATION OF A PROPOSAL IN THE ABSENCE OF A SHOWING THAT THE EVALUATION WAS ARBITRARY. OUR OFFICE WILL CONSIDER THE PROTEST. THE PROTEST IS NOT THAT THE PROCUREMENT SHOULD BE SOLE SOURCE. IT WAS UNACCEPTABLE UNDER THE RFP. THE TERMINAL DETERMINATION WAS INFLUENCED BY THE FACT THAT A FORMER CHIEF ENGINEER OF THE PRIOR SUPPLIER OF THE PRODUCT IS NOW WITH AQW. CONTRACTING OFFICERS HAVE CONSIDERABLE DISCRETION IN THE EVALUATION OF PROPOSALS AND OUR OFFICE WILL NOT DISTURB THE EVALUATION IN THE ABSENCE OF SHOWING THAT THE EVALUATION WAS ARBITRARY.
B-215290, OCT 26, 1984, 84-2 CPD 469
CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - EVALUATION - GENERAL ACCOUNTING OFFICE REVIEW DIGEST: 1. THE GENERAL ACCOUNTING OFFICE WILL CONSIDER A PROTEST THAT A PROPOSAL HAS BEEN IMPROPERLY EVALUATED UNDER AN RFP EVEN THOUGH THE RESULT MAY BE A SOLE-SOURCE PROCUREMENT. CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - EVALUATION - TECHNICAL ACCEPTABILITY - SCOPE OF GAO REVIEW 2. OUR OFFICE WILL NOT QUESTION A CONTRACTING OFFICER'S TECHNICAL EVALUATION OF A PROPOSAL IN THE ABSENCE OF A SHOWING THAT THE EVALUATION WAS ARBITRARY, UNREASONABLE OR CONTRARY TO PROCUREMENT LAWS OR REGULATIONS.
AERO-DRI CORPORATION:
AERO-DRI CORPORATION (AERO-DRI) PROTESTS THE AWARD OF A CONTRACT TO AQW, INC. (AQW), UNDER REQUEST FOR PROPOSALS (RFP) NO. DLA700-84-R-0667 ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER (DCSC), DEFENSE LOGISTICS AGENCY (DLA), FOR CARTRIDGES USED IN DEHYDRATING AIR IN AIRBORNE PNEUMATIC SYSTEMS, IDENTIFIED AS AERO-DRI PART NO. 91000.
WE DENY THE PROTEST.
DLA CONTENDS, FIRST, THAT OUR OFFICE SHOULD NOT REVIEW THE MERITS OF THIS PROTEST, WHICH, IN EFFECT, REQUESTS AN AWARD TO THE PROTESTER ON A SOLE- SOURCE BASIS.
OUR OFFICE WILL CONSIDER THE PROTEST. THE PROTEST IS NOT THAT THE PROCUREMENT SHOULD BE SOLE SOURCE, BUT THAT, BECAUSE THE ALTERNATE PRODUCT OFFERED COULD NOT BE PROPERLY EVALUATED BY DLA, IT WAS UNACCEPTABLE UNDER THE RFP. CF. WORTHINGTON GROUP, MCGRAW-EDISON COMPANY, B-207504, JULY 12, 1982, 82-2 CPD PARA. 41.
AERO-DRI CONTENDS THAT AQW DOES NOT QUALIFY FOR AN AWARD UNDER THE PRODUCTS OFFERED CLAUSE OF THE RFP BECAUSE AQW HAS NEVER MANUFACTURED THE ALTERNATE ITEM OFFERED AND THE GOVERNMENT HAS NOT FURNISHED ANY DETAILED SPECIFICATIONS OR OTHER DATA FOR TECHNICAL EVALUATION.
THE PRODUCTS OFFERED CLAUSE PROVIDES THAT THE OFFEROR MAY EITHER THE EXACT PRODUCT LISTED IN THE SCHEDULE OR AN ALTERNATE PRODUCT WHICH MUST BE ACCOMPANIED BY DRAWINGS, SPECIFICATIONS OR OTHER DATA NECESSARY TO DESCRIBE CLEARLY THE CHARACTERISTICS AND FEATURES OF THE PRODUCT BEING OFFERED.
DLA STATES THAT AQW FURNISHED DRAWINGS. DLA ALSO STATES THAT EVALUATION OF THE DRAWINGS, IN CONJUNCTION WITH DATA IN DCSC'S POSSESSION, SATISFIED DCSC'S TECHNICAL OPERATIONS DIVISION THAT THE ALTERNATE ITEM PROPOSED BY AQW WOULD SATISFY THE REQUIREMENTS OF DCSC. THE TERMINAL DETERMINATION WAS INFLUENCED BY THE FACT THAT A FORMER CHIEF ENGINEER OF THE PRIOR SUPPLIER OF THE PRODUCT IS NOW WITH AQW.
CONTRACTING OFFICERS HAVE CONSIDERABLE DISCRETION IN THE EVALUATION OF PROPOSALS AND OUR OFFICE WILL NOT DISTURB THE EVALUATION IN THE ABSENCE OF SHOWING THAT THE EVALUATION WAS ARBITRARY, WITHOUT A REASONABLE BASIS, OR CONTRARY TO PROCUREMENT LAWS AND REGULATIONS. LITTON SYSTEMS, INC., ELECTRON TUBE DIVISION, B-215106, SEPT. 18, 1984, 63 COMP.GEN. ---, 84-2 CPD PARA. 317.
AERO-DRI HAS NOT PRESENTED ANY EVIDENCE IN SUPPORT OF ITS CONTENTION THAT APPROVAL OF AQW'S ITEM WAS INFEASIBLE OR UNREASONABLE. THE ALLEGED IMPROPER RELIANCE ON THE ROLE OF THE FORMER CHIEF ENGINEER DOES NOT AFFECT OUR VIEW THAT THE PROTESTER'S UNSUPPORTED ALLEGATIONS DO NOT SHOW AN IMPROPER EVALUATION UNDER THE ABOVE STANDARD. (WE NOTE THAT THE CONTRACTING OFFICER AND THE AWARDEE INDICATE THAT SUBSTANTIAL QUANTITIES HAVE BEEN DELIVERED.)