B-168190 (1), FEB. 24, 1970

B-168190 (1): Feb 24, 1970

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OFFEROR WHOSE PROPOSAL WAS WITHIN THE COMPETITIVE RANGE PRICE WISE BUT DEFICIENT IN MAJOR ITEMS NEED NOT BE AFFORDED OPPORTUNITY FOR FURTHER DISCUSSION OF THE TECHNICAL PROPOSAL. THEREFORE REJECTION OF PROTESTANT'S PROPOSAL AS "TECHNICALLY UNACCEPTABLE" IS NOT SUBJECT TO QUESTION. A 30-DAY LAPSE BETWEEN CLOSING DATE FOR PROPOSALS AND DATE ON WHICH AWARD WAS MADE AFFORDED PROCURING AGENCY AMPLE OPPORTUNITY TO NOTIFY OTHER OFFEROR OF REASONS WHY PROPOSALS WAS TECHNICALLY UNACCEPTABLE. INC.: FURTHER REFERENCE IS MADE TO A COPY OF YOUR LETTER OF NOVEMBER 20. PRICED PROPOSALS WERE SOLICITED AND THE TECHNICAL PORTION WAS REQUIRED TO BE SUBMITTED SEPARATELY FROM THE PRICING PORTION SO THAT THE FORMER COULD BE EVALUATED STRICTLY ON THE BASIS OF TECHNICAL MERIT.

B-168190 (1), FEB. 24, 1970

BID PROTEST--NEGOTIATION--TECHNICAL EVALUATION DECISION TO ADVAN-TECH, INC; DENYING PROTEST AGAINST AWARD OF NEGOTIATED CONTRACT TO BROWNLINE DIVISION OF TRIDAIR BY AIR FORCE SYSTEMS COMMAND AERONAUTICAL SYSTEMS DIVISION FOR AIRCRAFT CARGO CONTAINERS. OFFEROR WHOSE PROPOSAL WAS WITHIN THE COMPETITIVE RANGE PRICE WISE BUT DEFICIENT IN MAJOR ITEMS NEED NOT BE AFFORDED OPPORTUNITY FOR FURTHER DISCUSSION OF THE TECHNICAL PROPOSAL. SINCE EVALUATION TEAM ACTED IN GOOD FAITH AND DID NOT ABUSE DISCRETION VESTED IN THEM, THEREFORE REJECTION OF PROTESTANT'S PROPOSAL AS "TECHNICALLY UNACCEPTABLE" IS NOT SUBJECT TO QUESTION. A 30-DAY LAPSE BETWEEN CLOSING DATE FOR PROPOSALS AND DATE ON WHICH AWARD WAS MADE AFFORDED PROCURING AGENCY AMPLE OPPORTUNITY TO NOTIFY OTHER OFFEROR OF REASONS WHY PROPOSALS WAS TECHNICALLY UNACCEPTABLE.

TO ADVAN-TECH, INC.:

FURTHER REFERENCE IS MADE TO A COPY OF YOUR LETTER OF NOVEMBER 20, 1969, TO ADVERSE WEATHER AERIAL DELIVERY SPO (ASWK), AFSC AERONAUTICAL SYSTEMS DIVISION, WRIGHT-PATTERSON AIR FORCE BASE, DAYTON, OHIO, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE BROWNLINE DIVISION OF TRIDAIR INDUSTRIES UNDER DEPARTMENT OF THE AIR FORCE REQUEST FOR PROPOSALS (RFP) NO. F33657-69-R-1120.

THE SUBJECT RFP, ISSUED ON JUNE 16, 1969, SOLICITED OFFERS FOR THE DESIGN, TEST, AND SUPPLY OF 150 CARGO CONTAINERS FOR PALLETIZED LOADS AND SUITABLE FOR SEVERAL DESIGNATED TYPES OF AIRCRAFT. PRICED PROPOSALS WERE SOLICITED AND THE TECHNICAL PORTION WAS REQUIRED TO BE SUBMITTED SEPARATELY FROM THE PRICING PORTION SO THAT THE FORMER COULD BE EVALUATED STRICTLY ON THE BASIS OF TECHNICAL MERIT. THE CLOSING DATE FOR RECEIPT OF PROPOSALS WAS JULY 16, 1969.

TWELVE PROPOSALS WERE RECEIVED IN RESPONSE TO THE SOLICITATION AND THE TECHNICAL PORTIONS WERE TURNED OVER TO AN EVALUATION TEAM COMPOSED OF TECHNICAL PERSONNEL FROM THE AERONAUTICAL SYSTEMS DIVISION AND THE MILITARY AIR TRANSPORT COMMAND. THE EVALUATION TEAM CONSIDERED TWO OF THE 12 TECHNICAL PROPOSALS TO BE "CLEARLY SUPERIOR," TWO "ACCEPTABLE" AND EIGHT INCLUDING YOUR FIRM'S PROPOSAL AS UNACCEPTABLE FROM A PURELY TECHNICAL STANDPOINT. THE CONTRACTING OFFICER CONCLUDED THAT THE EIGHT UNACCEPTABLE PROPOSALS WERE NOT WITHIN THE COMPETITIVE RANGE FROM A TECHNICAL ASPECT, AND THAT, THEREFORE, SUCH PROPOSALS COULD NOT BE GIVEN ANY FURTHER CONSIDERATION. THE RECORD INDICATES THAT THE FOUR ACCEPTABLE PROPOSALS WERE PRICED AS FOLLOWS:

OFFEROR PRICE

BROWNLINE DIVISION OF TRIDAIR

INDUSTRIES $192,645

UNITED AIRCRAFT PRODUCTS 419,306 AICO

INDUSTRIES $646,845 ZERO

HONEYCOMB 703,300

IT IS REPORTED THAT SINCE TRIDAIR INDUSTRIES' TECHNICAL PROPOSAL HAD BEEN RATED "CLEARLY SUPERIOR" BY THE EVALUATION TEAM, THE CONTRACTING OFFICER MADE THE AWARD TO THAT FIRM ON OCTOBER 27, 1969, AS BEING IN THE BEST INTEREST OF THE GOVERNMENT. ON THE SAME DAY, YOUR FIRM WAS NOTIFIED OF THE AWARD MADE TO TRIDAIR INDUSTRIES.

BY LETTER DATED NOVEMBER 20, 1969, TO THE PROCUREMENT AGENCY, YOU PROTESTED AGAINST THE AWARD OF A CONTRACT TO TRIDAIR INDUSTRIES. THE BASES OF YOUR PROTEST WERE (1) THAT YOUR FIRM SUBMITTED THE LOWEST PRICED PROPOSAL WHICH, YOU STATE, WAS $22,785 LESS THAN THE AMOUNT OF THE PROPOSAL SUBMITTED BY TRIDAIR INDUSTRIES; (2) THAT MR. HUTCHINS, HEADQUARTERS, AERONAUTICAL SYSTEMS DIVISION, HAD ADVISED A MEMBER OF YOUR FIRM THAT YOUR PROPOSAL HAD BEEN CLASSIFIED "COULD BE ACCEPTABLE"; AND (3) THAT AT NO TIME PRIOR TO THE AWARD OF THE CONTRACT TO TRIDAIR INDUSTRIES WAS YOUR FIRM ADVISED THAT YOUR PROPOSAL WAS UNACCEPTABLE AS REQUIRED BY PARAGRAPH 2-503.1 (F) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) OR COULD BE MADE ACCEPTABLE IN THE MANNER SPECIFIED BY ASPR 2-503.1 (E). THESE REFERENCES ARE NOT APPLICABLE TO THIS PROCUREMENT WHICH WAS "NEGOTIATED," SINCE SUCH CITATIONS RELATE TO TWO STEP "FORMAL ADVERTISING."

SPECIFICALLY, YOU STATE THAT ON NOVEMBER 13, 1969, YOUR REPRESENTATIVE CONTACTED MR. HUTCHINS, GOVERNMENT CONTRACT NEGOTIATOR, TO ASCERTAIN WHY THE CONTRACT WAS AWARDED TO TRIDAIR INDUSTRIES SINCE YOUR FIRM HAD SUBMITTED THE LOWEST PRICED PROPOSAL; THAT MR. HUTCHINS INFORMED YOUR REPRESENTATIVE THAT HE BELIEVED THAT YOUR PROPOSAL WAS ONE CLASSIFIED"COULD BE ACCEPTABLE"; AND THAT SINCE SUCH CLASSIFICATION WAS MADE BY TECHNICAL PERSONNEL, MR. HUTCHINS HAD HIS TECHNICAL REPRESENTATIVE, MR. C. JOHNSON, TALK TO YOUR REPRESENTATIVE. YOU ALLEGE THAT MR. JOHNSON INFORMED YOUR REPRESENTATIVE THAT YOUR PROPOSAL HAD BEEN ACCEPTABLE IN ALL RESPECTS, INCLUDING FACILITIES, EXPERIENCE, PERSONNEL, AND DESIGN CONCEPT, BUT THAT, HOWEVER, YOUR PROPOSAL WAS INSUFFICIENT IN REGARD TO DECOMPRESSION TESTING AND TESTING DATA, WEIGHT, AND THE CUBIC AREA OF THE EQUIPMENT TO BE PROVIDED. YOU CONTEND THAT THE DEFICIENCIES IN YOUR PROPOSAL MENTIONED BY MR. JOHNSON ARE MINOR AND THAT ANY CLARIFICATION OR SUPPLEMENTATION OF THESE MINOR ITEMS WOULD IN NO WAY BASICALLY CHANGE YOUR PROPOSAL AS SUBMITTED.

IN REGARD TO THE ACCEPTABILITY OF YOUR TECHNICAL PROPOSAL, IT IS REPORTED THAT THE EVALUATION TEAM REPORTED TO THE CONTRACTING OFFICER AS FOLLOWS:

"2. THE ADVAN-TECH, INC. PROPOSAL PRESENTED INADEQUATE AND INSUFFICIENT DATA IN THE OPERATIONAL AND TESTING CATEGORIES. IN THE DESIGN CATEGORY, AVAILABLE CUBE SPACE, WEIGHT AND DECOMPRESSION ASPECTS WERE NOT ADEQUATELY COVERED. THE OVERALL TECHNICAL RATING IS UNSATISFACTORY."

CONCERNING YOUR CONTENTION THAT YOUR FIRM SHOULD HAVE BEEN AFFORDED AN OPPORTUNITY TO DISCUSS YOUR TECHNICAL PROPOSAL WITH THE PROCUREMENT AGENCY BEFORE ANY AWARD WAS MADE TO TRIDAIR INDUSTRIES, BOTH 10 U.S.C 2304 (G) AND ASPR 3-805.1 (A) GENERALLY REQUIRE DISCUSSIONS WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED. "OTHER FACTORS" HAS BEEN HELD TO INCLUDE THE TECHNICAL ACCEPTABILITY OF PROPOSALS. 46 COMP. GEN. 606 (1967). IN OUR OPINION, A PROPOSAL MUST BE REGARDED AS BEING WITHIN A COMPETITIVE RANGE UNLESS IT IS SO TECHNICALLY DEFICIENT OR OUT OF LINE IN PRICE AS TO PRECLUDE FURTHER MEANINGFUL NEGOTIATIONS. 45 COMP. GEN. 417 (1966); 47 ID. 252 (1967). PARTICULARLY WITH RESPECT TO TECHNICAL CONSIDERATIONS, HOWEVER, WE RECOGNIZE A REASONABLE DEGREE OF ADMINISTRATIVE DISCRETION IS PERMISSIBLE IN DETERMINING WHETHER A PROPOSAL IS WITHIN THE COMPETITIVE RANGE. B-163024, AUGUST 27, 1968. ALTHOUGH YOUR PROPOSAL WAS WITHIN THE COMPETITIVE RANGE PRICE WISE, AIR FORCE TECHNICAL PERSONNEL HAVE DETERMINED YOUR PROPOSAL TO BE SO TECHNICALLY DEFICIENT THAT MAJOR MODIFICATIONS WOULD BE NECESSARY TO MAKE IT ACCEPTABLE; HENCE, WE ARE UNABLE TO CONCLUDE THAT YOUR PROPOSAL WAS WITHIN A COMPETITIVE RANGE SO AS TO REQUIRE FURTHER DISCUSSION PURSUANT TO ASPR 3-805.1 (A). SEE B-150658, MAY 6, 1963, AND 40 COMP. GEN. 35, 38 (1960).

CONCERNING THE NATURE AND EXTENT OF NEGOTIATIONS TO BE CONDUCTED WITH PROSPECTIVE CONTRACTORS AND THE DETERMINATION AS TO WHETHER INDIVIDUAL PROPOSALS ARE OR ARE NOT WITHIN A "COMPETITIVE RANGE," AND THEREFORE ENTITLED TO NEGOTATION OPPORTUNITY, THE FOLLOWING STATEMENT IS CONTAINED IN 48 COMP. GEN. 314 (1968):

"WITH REGARD TO THE NATURE AND EXTENT OF NEGOTIATIONS TO BE CONDUCTED WITH OFFERORS, ASPR 3-805.1, IN IMPLEMENTATION OF 10 U.S.C. 2304 (G), REQUIRES THAT 'WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE, AND OTHER FACTORS CONSIDERED.' ALSO, ASPR 3 805.1 (A) (V) REQUIRES THAT 'IN ANY CASE WHERE THERE IS UNCERTAINTY AS TO THE PRICING OR TECHNICAL ASPECTS OF ANY PROPOSALS, THE CONTRACTING OFFICER SHALL NOT MAKE AWARD WITHOUT FURTHER EXPLORATION AND DISCUSSION PRIOR TO AWARD.' WHILE OUR OFFICE HAS HELD THAT A PROPOSAL MUST BE CONSIDERED TO BE WITHIN A COMPETITIVE RANGE SO AS TO REQUIRE NEGOTIATIONS UNLESS IT IS SO TECHNICALLY INFERIOR OR OUT OF LINE WITH REGARD TO PRICE THAT MEANINGFUL NEGOTIATIONS ARE PRECLUDED, WE HAVE ALSO RECOGNIZED THAT THE DETERMINATION OF COMPETITIVE RANGE, PARTICULARLY AS REGARDS TECHNICAL CONSIDERATIONS, IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION WHICH WILL NOT BE DISTURBED IN THE ABSENCE OF A CLEAR SHOWING THAT SUCH DETERMINATION WAS AN ARBITRARY ABUSE OF DISCRETION. SEE B-164313 DATED JULY 5, 1968.

"THERE IS VEHEMENT DISAGREEMENT ON THE PART OF THE PROTESTANTS WITH REGARD TO THE TECHNICAL CONCLUSIONS REACHED BY THE EVALUATION TEAM. HOWEVER, IN VIEW OF THE TECHNICAL NATURE OF THE DETERMINATIONS, OUR LACK OF EXPERTISE IN THIS AREA, AND THE WIDE RANGE OF DISCRETION VESTED IN THE CONTRACTING OFFICIALS, WE CANNOT CONCLUDE THAT THE DETERMINATION THAT ONLY ONE PROPOSAL WAS ACCEPTABLE CONSTITUTED A CLEAR ABUSE OF DISCRETION."

WE BELIEVE THAT THE ABOVE REASONING APPLIES EQUALLY HERE. THE RECORD INDICATES THAT THE PROJECT MANAGER ESTABLISHED STANDARDS, BOTH TECHNICAL AND MANAGEMENT, AGAINST WHICH EACH TECHNICAL PROPOSAL WAS EVALUATED; THAT NUMERICAL RATINGS WERE ESTABLISHED FOR THE VARIOUS STANDARDS FOR THE PURPOSE OF ARRIVING AT A MINIMUM ACCEPTABLE RATING; AND THAT ALL PROPOSALS WERE GRADED AGAINST THE RATINGS. NO QUESTION AS TO THE GOOD FAITH OF THE EVALUATION TEAM WOULD SEEM TO EXIST NOR HAS ONE BEEN RAISED. ACCORDINGLY, SINCE THE RECORD INDICATES THAT THE EVALUATION TEAM ACTED IN GOOD FAITH AND DID NOT ABUSE THE DISCRETION VESTED IN THEM, WE CONCLUDE THAT THE REJECTION OF YOUR FIRM'S PROPOSAL AS "TECHNICALLY UNACCEPTABLE" IS NOT SUBJECT TO QUESTION.

IN REGARD TO YOUR ALLEGATION THAT MR. HUTCHINS, GOVERNMENT NEGOTIATOR, INFORMED A REPRESENTATIVE OF YOUR FIRM THAT YOUR PROPOSAL HAD BEEN CLASSIFIED "COULD BE ACCEPTABLE," MR. HUTCHINS HAS STATED THAT HE DOES NOT RECALL MAKING SUCH A STATEMENT. SEE 37 COMP. GEN. 568, 570 (1958). AS TO YOUR CONTENTION THAT YOUR FIRM WAS NOT NOTIFIED PRIOR TO THE AWARD OF THE CONTRACT TO TRIDAIR INDUSTRIES OF THE UNACCEPTABILITY OF YOUR PROPOSAL AS REQUIRED BY ASPR 3-508.2, IT IS OUR OPINION THAT THE RECORD DOES NOT JUSTIFY THE PROCURING ACTIVITY'S FAILURE TO INFORM YOU OF ITS REASON FOR FINDING YOUR PROPOSAL UNACCEPTABLE UNTIL AFTER YOUR PROTEST WAS LODGED IN OUR OFFICE. ASPR 3-508.2 PROVIDES AS FOLLOWS:

"(A) IN ANY PROCUREMENT IN EXCESS OF $10,000 IN WHICH IT APPEARS THAT THE PERIOD OF EVALUATION OF PROPOSALS IS LIKELY TO EXCEED 30 DAYS OR IN WHICH A LIMITED NUMBER OF SUPPLIERS HAVE BEEN SELECTED FOR ADDITIONAL NEGOTIATION (SEE 3-805.1), THE CONTRACTING OFFICER, UPON DETERMINATION THAT A PROPOSAL IS UNACCEPTABLE, SHALL PROVIDE PROMPT NOTICE OF THAT FACT TO THE SOURCE SUBMITTING THE PROPOSAL. SUCH NOTICE NEED NOT BE GIVEN WHERE THE PROPOSED CONTRACT IS TO BE AWARDED WITHIN A FEW DAYS AND NOTICE PURSUANT TO 3-508.3 BELOW WOULD SUFFICE. IN ADDITION TO STATING THAT THE PROPOSAL HAS BEEN DETERMINED UNACCEPTABLE, NOTICE TO THE OFFEROR SHALL INDICATE, IN GENERAL TERMS, THE BASIS FOR SUCH DETERMINATION AND SHALL ADVISE THAT, SINCE FURTHER NEGOTIATION WITH HIM CONCERNING THIS PROCUREMENT IS NOT CONTEMPLATED, A REVISION OF HIS PROPOSAL WILL NOT BE CONSIDERED.

"(B) IN ANY PROCUREMENT INVOLVING A SMALL BUSINESS SET-ASIDE TO BE PLACED THROUGH CONVENTIONAL NEGOTIATION, UPON FINAL COMPLETION OF NEGOTIATIONS AND DETERMINATIONS OF RESPONSIBILITY BUT PRIOR TO AWARD, THE CONTRACTING OFFICER SHALL INFORM EACH UNSUCCESSFUL OFFEROR BY WRITTEN NOTICE OF THE NAME AND LOCATION OF THE APPARENTLY SUCCESSFUL OFFEROR (S). EACH APPARENTLY UNSUCCESSFUL OFFEROR SHOULD BE ADVISED THAT ANY SUBSEQUENT REVISIONS OF HIS PROPOSAL WILL NOT BE CONSIDERED, SINCE NO FURTHER NEGOTIATIONS ARE CONTEMPLATED, AND NO FURTHER CONTACT WITH THE CONTRACTING OFFICER NEED BE MADE REGARDING THE INSTANT PROCUREMENT UNLESS THE UNSUCCESSFUL OFFEROR HAS GROUNDS TO CHALLENGE THE SMALL BUSINESS SIZE STATUS OF THE APPARENTLY SUCCESSFUL OFFEROR (S). THIS NOTIFICATION PROCEDURE SHALL NOT APPLY TO PROCUREMENTS EXEMPT BY 3-508.1 ABOVE OR TO ANY URGENT PROCUREMENT ACTION WHICH THE CONTRACTING OFFICER DETERMINES IN WRITING MUST BE AWARDED WITHOUT DELAY TO PROTECT THE PUBLIC INTEREST. THE CONTRACTING OFFICER'S DETERMINATION SHALL BE PLACED IN THE CONTRACT FILE."

THE CLOSING DATE FOR RECEIPT OF PROPOSALS WAS JULY 16, 1969, AND IT APPEARS THAT YOUR PROPOSAL WAS EVALUATED AS "TECHNICALLY UNACCEPTABLE" BY AN EVALUATION REPORT DATED AUGUST 4, 1969, AND BY A SUPPLEMENTAL EVALUATION REPORT DATED OCTOBER 23, 1969. HOWEVER, IT APPARENTLY WAS NOT UNTIL AFTER THE CONTRACT WAS AWARDED TO TRIDAIR INDUSTRIES ON OCTOBER 27, 1969, THAT YOU LEARNED OF THE REASONS WHY YOUR PROPOSAL HAD BEEN EVALUATED AS "TECHNICALLY UNACCEPTABLE." SINCE THE RECORD INDICATES THAT THE PERIOD BETWEEN THE CLOSING DATE FOR RECEIPT OF PROPOSALS AND THE DATE ON WHICH AN AWARD WAS MADE TO TRIDAIR INDUSTRIES EXCEEDED 30 DAYS, THE PROCURING ACTIVITY HAD ADEQUATE OPPORTUNITY TO HAVE NOTIFIED YOUR FIRM OF THE UNACCEPTABILITY OF ITS PROPOSAL AS REQUIRED BY ASPR 3-508.2, SUPRA. IT IS REGRETTABLE THAT YOUR FIRM WAS NOT ACCORDED THE TREATMENT CONTEMPLATED BY THE PROCUREMENT REGULATIONS; HOWEVER, SINCE THIS NOTICE REQUIREMENT OF ASPR IS PROCEDURAL IN NATURE AND DOES NOT GO TO THE ESSENCE OF THE AWARD, THERE IS NO LEGAL BASIS FOR DISTURBING THE AWARD MADE TO TRIDAIR INDUSTRIES. 47 COMP. GEN. 373,377 (1968); B-166237, AUGUST 15, 1969.

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