B-178474, SEP 11, 1973

B-178474, SEP 11, 1973

DENIAL OF BID PROTEST SUBMITTED ON BEHALF OF SITUATION DYNAMICS, INCORPORATED UNDER IFB NO. DABC15-73-B-0042, ISSUED BY THE PURCHASING AND CONTRACTING OFFICE, FORT MCPHERSON, GEORGIA. THE INTENTION TO CANCEL THE SUBJECT INVITATION AND PROCURE THE TRAINING SERVICES ON A COMPETITIVE NEGOTIATED BASIS PURSUANT TO ASPR 3-210.2 (XIII) IS A PROPER EXERCISE OF ADMINISTRATIVE DISCRETION.

TO SITUATION DYNAMICS, INCORPORATED:

IN YOUR LETTERS OF APRIL 25, 1973 AND JUNE 28, 1973, YOU HAVE PROTESTED AGAINST THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. DABC15-73- B-0042, ISSUED ON FEBRUARY 1, 1973, BY THE PURCHASING AND CONTRACTING OFFICE, FORT MCPHERSON, GEORGIA. YOU HAVE ALSO RESPONDED TO THE PROPOSED CANCELLATION OF THAT INVITATION.

AS BACKGROUND, WE NOTE THAT ON JUNE 26, 1972, THE COMMANDING OFFICER, UNITED STATES ARMY THIRD RECRUITING DISTRICT (USA3RD) WAS ADVISED BY HEADQUARTERS THAT APPROVAL HAD BEEN GRANTED FOR CONDUCTING SALES TRAINING PROGRAMS FOR RECRUITING PERSONNEL AT THE DISCRETION OF DISTRICT COMMANDERS. THEREAFTER, FIVE CONCERNS MADE PRESENTATIONS OF THEIR PROGRAMS TO USA3RD DURING THE PERIOD OCTOBER 17 THROUGH OCTOBER 31, 1972. THE PROGRAM OF THE WILSON LEARNING CORPORATION (WILSON), A LECTURE SERIES ON "COUNSELLOR SELLING", AND THE CASSETTE TAPE PROGRAM OF THE NIGHTINGALE- CONANT CORPORATION (NIGHTINGALE), ENTITLED "KEEP IT SIMPLE SALESMAN" (KISS), WERE FOUND SUPERIOR TO THOSE OF THE OTHER FIRMS IN TERMS OF CAPABILITY TO MEET THE IMMEDIATE NEEDS OF THE ACTIVITY. YOUR CONCERN DID NOT MAKE A PRESENTATION DURING THAT PERIOD.

ON DECEMBER 11, 1972, USA3RD REQUESTED PERMISSION FROM FORT MCPHERSON, THE SUPPORTING PROCUREMENT ACTIVITY, TO PURCHASE THE PROGRAMS OF WILSON AND NIGHTINGALE ON A SOLE-SOURCE BASIS. THE PURCHASE OF NIGHTINGALE'S PROGRAM WAS ACCOMPLISHED BY AN ORDER UNDER A FEDERAL SUPPLY SCHEDULE CONTRACT WHICH COVERED THAT ITEM. HOWEVER, SINCE OTHER SOURCES WERE KNOWN FOR THE TYPE OF PROGRAM OFFERED BY WILSON, APPROVAL FOR A SOLE-SOURCE AWARD TO THAT CONCERN WAS DENIED.

BY LETTER OF DECEMBER 21, 1972, USA3RD SENT ITS TRAINING REQUIREMENTS TO FORT MCPHERSON. THEREAFTER, USA3RD APPARENTLY BECAME AWARE THAT FORT MCPHERSON CONTEMPLATED AN ADVERTISED PROCUREMENT FOR THE PROGRAM. LETTER OF JANUARY 15, 1973, USA3RD ATTEMPTED TO DISSUADE THE CONTRACTING OFFICER FROM SUCH ACTION, ARGUING THAT IT WAS NOT THE DOLLAR COST BUT THE QUALITY OF THE PROGRAM THAT WAS OF PRIMARY IMPORTANCE AND THAT IN ANY EVENT THE WORK STATEMENT WHICH HAD BEEN FURNISHED WAS NOT ADEQUATE FOR A FORMALLY ADVERTISED PROCUREMENT.

DESPITE THIS ADVICE, FORT MCPHERSON ISSUED AN ADVERTISED SOLICITATION ON FEBRUARY 1, 1973 FOR AN INSTRUCTOR SALES TRAINING PROGRAM ENTITLED "COUNSELLOR SELLING" FOR RECRUITING PERSONNEL AT USA3RD. THREE PAGES OF SPECIFICATIONS WERE INCLUDED AS PART II-SECTION F. THE SPECIFICATIONS OUTLINED THE OBJECTIVES IN SUCH TERMS AS "ASSIST RECRUITING PERSONNEL TO GROW IN SELF-UNDERSTANDING" AND "HELP RECRUITING PERSONNEL DISCOVER AND DEVELOP A VIEW OF SELLING AS A PROCESS OF BUILDING RELATIONSHIPS WITH PEOPLE." THE SPECIFICATIONS ALSO REQUIRED THAT TECHNIQUES MUST BE INCORPORATED INTO THE LEARNING PROCESS IN SUCH A WAY THAT RECRUITERS CAN PRACTICE WHAT THEY LEARN; THAT THE RECRUITER MUST BE FURNISHED WITH THE MEANS HE WILL NEED TO CRITIQUE HIS OWN PERFORMANCE; AND THAT A MINIMUM OF 110 COMMAND SUPERVISORY PERSONNEL MUST BE TRAINED AT ONE CENTRAL LOCATION. THE SPECIFICATIONS PROVIDED THAT THERE MUST BE A MINIMUM OF 10 INTERRELATED TRAINING UNITS PRESENTED OVER A FIVE-DAY, FORTY-HOUR PERIOD. THE SPECIFICATIONS THEN DESCRIBED TEN MINIMUM IDEAS AND CONCEPTS THAT MUST BE ADDRESSED IN EACH FORTY-HOUR TRAINING PHASE. THE SPECIFICATIONS FURTHER PROVIDED THAT THINKING SHOULD BE STIMULATED BY A VARIETY OF AUDIO- VISUAL PRESENTATIONS SUCH AS FILMSTRIPS, FLIP CHARTS, AND AUDIO TAPES. THE INVITATION DID NOT REQUIRE THAT BIDDERS FURNISH THEIR PROPOSED PROGRAMS WITH THE BIDS.

BIDS WERE OPENED ON FEBRUARY 20, 1973, AND FIVE BIDS WERE RECEIVED, TWO OF WHICH WERE DETERMINED TO BE NONRESPONSIVE. THE THREE OTHER BIDS INCLUDED YOUR BID AT $18,511, THE BID OF INTEGRO, INCORPORATED (INTEGRO), AT $33,935, BEFORE DISCOUNT, AND WILSON AT $37,070.

ON MARCH 20, 1973, ABOUT ONE MONTH AFTER BID OPENING, YOU WERE INVITED TO MAKE A PRESENTATION OF YOUR PROGRAM TO THE PROCURING ACTIVITY, SINCE YOU HAD NOT DONE SO PREVIOUSLY AND YOU HAD NOT INCLUDED SUCH A PROGRAM WITH YOUR BID. AFTER EVALUATION, THE PROCURING ACTIVITY DETERMINED THAT YOUR PROGRAM WAS DEFICIENT IN A NUMBER OF AREAS AND THAT YOUR BID SHOULD BE REJECTED. BRIEFLY, THE ARMY FOUND THAT THE SPECIFICATIONS DID NOT CONTEMPLATE USING SEMINAR TIME FOR SUCH MATTERS AS DEVELOPING, DISCUSSING AND ANALYZING NEEDS, SOCIAL STYLES AND INDIVIDUAL PROFILES, WHILE YOUR PROGRAM PROPOSED SPENDING ABOUT ONE AND ONE-HALF DAYS ON THESE ITEMS. THE ARMY CONCLUDED THAT THIS WOULD WASTE A CONSIDERABLE NUMBER OF SEMINAR HOURS. SECOND, THE ARMY FOUND THAT YOUR CONCEPTUALIZATION OF THE MOTIVATION THEORY WAS INCOMPATIBLE WITH WHAT THE ARMY DEEMED WAS THE ESSENCE OF THE PROGRAM. THIRD, IT WAS CONCLUDED THAT YOUR PROGRAM WAS INCOMPLETE WITH RESPECT TO ROLE-PLAYING MATERIALS AND THAT THE ARMY WOULD HAVE TO ASSIST YOU IN THIS PHASE. ALSO, THE ARMY WAS NOT SATISFIED WITH THE QUALITY OF YOUR TRAINING AIDS WHICH IT FELT WOULD DETRACT FROM THE MOTIVATION OF THE STUDENTS TO LEARN THE MATERIAL PRESENTED.

THE ARMY THEN EVALUATED INTEGRO'S BID AND THE MATERIALS SUBMITTED THEREWITH AND FOUND THAT IT COULD NOT BE DETERMINED WHETHER INTEGRO HAD TAKEN EXCEPTIONS TO THE SPECIFICATIONS OR HAD MERELY ELABORATED ON THEM. A MEETING WAS ARRANGED FOR THE LATTER PART OF APRIL 1973 TO GIVE INTEGRO THE OPPORUNITY TO MAKE A PRESENTATION; HOWEVER, ON APRIL 11, 1973, INTEGRO REQUESTED THAT ITS BID BE WITHDRAWN FROM FURTHER CONSIDERATION. THE PROCURING ACTIVITY THEREUPON PROPOSED MAKING AN AWARD TO WILSON. YOU CONTACTED THE CONTRACTING OFFICER ON APRIL 19, 1973, AT WHICH TIME YOU WERE ADVISED OF THE PROPOSED AWARD TO WILSON. YOU PROTESTED TO THE PROCURING ACTIVITY ON APRIL 20 AND ON APRIL 25 YOU PROTESTED TO OUR OFFICE.

UPON RECEIPT OF YOUR PROTEST THE ARMY'S OFFICE OF THE JUDGE ADVOCATE GENERAL (JAG) REVIEWED THE MATTER AND IN A REPORT TO THE ASSISTANT SECRETARY OF THE ARMY (I&L), DATED JUNE 7, 1973, JAG ADVISED THAT THE SPECIFICATIONS, WHICH HAD BEEN WRITTEN AROUND THE EARLIER PROPOSAL SUBMITTED BY WILSON, WERE RESTRICTIVE AND NOT OTHERWISE ADEQUATE FOR PURPOSES OF A FORMALLY ADVERTISED SOLICITATION. THE REPORT RECOMMENDED CANCELLATION OF THE INVITATION. FURTHER IT WAS RECOMMENDED THAT A RESOLICITATION BE ON A NEGOTIATED BASIS AFTER REVISING AND REFINING THE SPECIFICATIONS, AND AFTER DEVELOPING EVALUATION CRITERIA EMPHASIZING THAT FACTORS OTHER THAN PRICE ARE OF PRIMARY IMPORTANCE.

BY LETTER OF JUNE 14, 1973, THE ASSISTANT SECRETARY OF THE ARMY (I&L) ADVISED US THAT THE PROCURING ACTIVITY HAS BEEN DIRECTED TO CANCEL THE SUBJECT SOLICITATION AND, IF THE REQUIREMENT STILL EXISTS, A NEW SOLICITATION WILL BE ISSUED UTILIZING A NEGOTIATED FORM OF PROCUREMENT. AS OF THE PRESENT TIME APPARENTLY NO DECISION HAS BEEN MADE AS TO WHEN A NEW SOLICITATION WILL BE ISSUED.

YOUR LETTER OF JUNE 28, 1973, COMMENTING ON THE ARMY'S REPORT TAKES ISSUE WITH THE PROPOSED CANCELLATION. YOU CONCEDE THAT THE ARMY'S SPECIFICATIONS WERE UNREALISTICALLY PARTICULAR AND NARROW, PRECLUDING ALL REASONABLE COMPETITION AND WERE BASED ON WILSON'S PROPOSAL SUBMITTED PRIOR TO ISSUANCE OF THE SOLICITATION; HOWEVER, IT IS URGED THAT NEVERTHELESS YOUR BID SHOULD BE ACCEPTED SINCE IT MET ALL OF ARMY'S LEGITIMATE NEEDS. YOUR COMMENTS ON THE TECHNICAL DEFICIENCIES FOUND IN YOUR PROGRAM ARE THAT THE ARMY FAILED TO COMPREHEND YOUR APPROACH; THAT THE ARMY HAS ADHERED RIGIDLY TO THE PRECISE OUTLINE SUBMITTED BY WILSON; AND THAT THE SPECIFICATIONS DID NOT REQUIRE THAT "CONCRETE PRODUCTS" BE IN EXISTENCE OR AVAILABLE FOR INSPECTION AT THE TIME THE BIDS WERE OPENED.

WE DO NOT BELIEVE THAT THE RESPONSIVENESS OF YOUR BID IS THE REAL ISSUE IN THIS CASE, BUT RATHER THE PROPRIETY OF THE AGENCY'S INTENTION TO REJECT ALL BIDS, CANCEL THE INVITATION, AND RESOLICIT AS A COMPETITIVE NEGOTIATED PROCUREMENT. IN THIS REGARD, SEE 50 COMP. GEN. 464, 469 (1970), WHERE WE STATED THE FOLLOWING:

"IT HAS CONSISTENTLY BEEN HELD THAT AN INVITATION FOR BIDS DOES NOT IMPORT ANY OBLIGATION ON THE GOVERNMENT TO ACCEPT ANY OF THE OFFERS RECEIVED, AND THAT ALL BIDS MAY BE REJECTED UNDER VARIOUS CIRCUMSTANCES, INCLUDING THOSE INSTANCES WHEN IT IS DETERMINED TO BE IN THE BEST INTERESTS OF THE GOVERNMENT TO DO SO; WHERE THE BIDS RECEIVED ARE NONRESPONSIVE; OR WHERE THE SPECIFICATIONS ARE INADEQUATE OR AMBIGUOUS TO SUCH AN EXTENT AS TO PREVENT A BIDDER FROM SUBMITTING A RESPONSIVE BID. 17 COMP. GEN. 554 (1938); 26 ID. 49 (1946); 37 ID. 760 (1958). MOREOVER, UNDER PARAGRAPH 10(B) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, THE GOVERNMENT EXPRESSLY RESERVED THE RIGHT TO REJECT ANY AND ALL BIDS RECEIVED UNDER THE INVITATION. SEE 10 U.S.C. 2305(C) TO THE SAME EFFECT. ALSO, PARAGRAPHS 2-404.1(B)(I) AND (VIII) OF THE ARMED SERVICES PROCUREMENT REGULATION RECOGNIZE THE AUTHORITY OF THE CONTRACTING OFFICER TO REJECT ALL BIDS AFTER OPENING AND PRIOR TO AWARD WHERE HE DETERMINES THAT THE PARTICULAR INVITATION INCLUDES INADEQUATE OR AMBIGUOUS SPECIFICATIONS OR WHERE IT IS IN THE BEST INTERESTS OF THE GOVERNMENT TO DO SO. FROM THE FOREGOING, IT IS CLEAR THAT THE REJECTION OF ALL BIDS AND THE READVERTISING OF A PROCUREMENT IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION."

ALSO, SEE B-177660, APRIL 24, 1973.

WE BELIEVE THAT THE RECORD IN THE INSTANT CASE AMPLY DEMONSTRATES THAT THE NATURE OF THE SERVICES REQUIRED MAKE IT VERY DIFFICULT, AT BEST, TO DEVELOP SPECIFICATIONS SUITABLE FOR FORMAL ADVERTISING.

FOR THE SERVICES BEING PROCURED HERE SUCH FACTORS AS INSTRUCTOR PERSONALITY AND EXPERIENCE, SEMINAR QUALITY, MANNER OF PRESENTATION, AND OVERALL QUALITY AND APPROACH OF THE PROPOSED TRAINING PROGRAM ARE OF GREATER IMPORTANCE THAN PRICE AND REQUIRE SOME DISCUSSION TO PROPERLY EVALUATE IN ACCORDANCE WITH THEIR RELATIVE IMPORTANCE. THEREFORE, IT IS OUR VIEW THAT THE INTENTION TO CANCEL THE SUBJECT INVITATION AND PROCURE THE SERVICES ON A COMPETITIVE NEGOTIATED BASIS PURSUANT TO ASPR 3- 210.2(XIII) IS A PROPER EXERCISE OF ADMINISTRATIVE DISCRETION.

FOR THESE REASONS YOUR PROTEST IS DENIED.