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B-166052, JUL. 11, 1969

B-166052 Jul 11, 1969
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SINCE RECORD SUPPORTS CONCLUSION AND AS NEW EVIDENCE HAS BEEN PRESENTED TO REFUTE FINDING THAT ALL PROPOSALS WERE EVALUATED ON SAME BASIS PROTEST WAS PROPERLY REJECTED. TO METRON CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 27. SETS FORTH THAT THE CONTRACT WAS NEGOTIATED PURSUANT TO THE PROVISIONS OF 10 U.S.C. 2304 (A) (10). THE DECISION ALSO REFERS TO THE GENERAL RULE THAT IN NEGOTIATED PROCUREMENTS AUTHORIZED BY STATUTE THE RULES OF FORMALLY ADVERTISED COMPETITIVE BIDDING ARE NOT APPLICABLE AND THE NEGOTIATING AUTHORITY MAY LEGALLY TAKE INTO CONSIDERATION ALL FACTORS DEEMED ESSENTIAL TO THE ACCOMPLISHMENT OF THE PARTICULAR PROCUREMENT. WHERE SUCH EVALUATION FORMULA IS TO BE FOLLOWED.

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B-166052, JUL. 11, 1969

BID PROTEST DECISION TO METRON CORPORATION AFFIRMING DECISION OF MAY 20, 1969, REJECTING PROTEST AGAINST NEGOTIATED PROCUREMENT. PROTESTANT QUESTIONS TIME FOR DECIDING MATTER. SINCE RECORD SUPPORTS CONCLUSION AND AS NEW EVIDENCE HAS BEEN PRESENTED TO REFUTE FINDING THAT ALL PROPOSALS WERE EVALUATED ON SAME BASIS PROTEST WAS PROPERLY REJECTED.

TO METRON CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 27, 1969, REQUESTING RECONSIDERATION OF OUR DECISION OF MAY 20, 1969, DENYING YOUR PROTEST AGAINST AWARD TO ANOTHER FIRM UNDER REQUEST FOR QUOTATIONS (RFQ) NO. N00140-69-Q-0047.

THE DECISION OF MAY 20, 1969, SETS FORTH THAT THE CONTRACT WAS NEGOTIATED PURSUANT TO THE PROVISIONS OF 10 U.S.C. 2304 (A) (10), AS IMPLEMENTED BY PARAGRAPH 3-210.2 (VIII) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). THE DECISION ALSO REFERS TO THE GENERAL RULE THAT IN NEGOTIATED PROCUREMENTS AUTHORIZED BY STATUTE THE RULES OF FORMALLY ADVERTISED COMPETITIVE BIDDING ARE NOT APPLICABLE AND THE NEGOTIATING AUTHORITY MAY LEGALLY TAKE INTO CONSIDERATION ALL FACTORS DEEMED ESSENTIAL TO THE ACCOMPLISHMENT OF THE PARTICULAR PROCUREMENT. IN OUR DECISION, AND BY LETTER OF THE SAME DATE TO THE SECRETARY OF THE NAVY, WE EXPRESSED THE VIEW THAT THE REQUEST FOR PROPOSALS IN THIS CASE AND IN FUTURE PROCUREMENTS, SHOULD SET FORTH SPECIFICALLY THE CRITERIA TO BE USED IN EVALUATION OF PROPOSALS, AND THE WEIGHTS TO BE GIVEN TO THE SEVERAL FACTORS, WHERE SUCH EVALUATION FORMULA IS TO BE FOLLOWED. WE CONCLUDED, HOWEVER, THAT NO BASIS EXISTED FOR A FINDING THAT THE CONTRACT AS AWARDED WAS INVALID.

YOU FIRST COMPLAIN THAT THREE AND ONE-HALF MONTHS WAS MORE THAN ENOUGH TIME FOR US TO CONSIDER THE MERITS OF YOUR PROTEST, AND THAT THE DELAY APPEARS INTENTIONAL TO JUSTIFY NONCANCELLATION OR STOPPAGE OF THE AWARDED CONTRACT. WHILE THE TIME SPENT IN DISPOSING OF YOUR PROTEST WAS BEYOND THE AVERAGE TIME REQUIRED BY OUR OFFICE FOR PROCESSING SUCH MATTERS, YOU CAN BE ASSURED THAT SUCH MATTERS ARE NOT PURPOSELY DELAYED BY OUR OFFICE FOR ANY REASON. CONVERSELY, WE MAKE EVERY EFFORT TO EXPEDITE THE HANDLING OF PROTESTS, FOR WE RECOGNIZE THAT UNDUE DELAYS CAN GREATLY IMPAIR THE EFFECTIVENESS OF OUR ROLE IN SUCH CASES. WE CONTINUALLY URGE THE AGENCIES INVOLVED IN PROTESTS TO TRANSMIT THEIR ADMINISTRATIVE REPORTS TO US AS QUICKLY AS POSSIBLE SO AS NOT TO PRECLUDE US FROM TAKING PROPER REMEDIAL ACTION, WHERE THE FACTS JUSTIFY SUCH ACTION. HAD WE FOUND SUCH ACTION WAS JUSTIFIED IN THE INSTANT CASE WE DO NOT FEEL THAT THE TIME LAPSE INVOLVED WOULD HAVE IN ANY WAY PREVENTED US FROM SO ACTING.

YOU NEXT SUGGEST THAT IT IS OUR RESPONSIBILITY TO FIND IMPARTIAL EXPERTS TO JUDGE THE MERITS OF YOUR PROTEST, BASED ON TECHNICAL COMPETENCE, AND THEN ASK "WHOM DID YOU CONTACT BESIDES THE PERSONNEL WHO INITIALLY REVIEWED OUR ORIGINAL PROPOSAL AND PROTEST? " WHILE WE ATTEMPT TO REACH OUR DECISIONS IMPARTIALLY ON THE BASIS OF THE FACTS BEFORE US, FINAL DETERMINATION OF THE MINIMUM NEEDS OF THE GOVERNMENT IN THIS CASE IS A COMPLEX QUESTION, REQUIRING A THOROUGH KNOWLEDGE OF THE NAVY CALIBRATION PROGRAM. THIS OFFICE DOES NOT EMPLOY PEOPLE QUALIFIED TO PASS UPON SUCH SPECIALIZED FIELDS OF ACTIVITIES. INSTEAD, WHERE THERE IS A CONFLICT OF OPINION ON QUESTIONS OF THIS NATURE, IT IS OUR POLICY TO ACCEPT THE JUDGMENT AND EXPERTISE OF THE TECHNICAL PERSONNEL OF THE PROCURING AGENCY, WHO WERE EMPLOYED FOR THAT SPECIFIC PURPOSE.

YOU OBJECT TO OUR FINDING THAT THE AWARD WAS MADE IN GOOD FAITH, AND THE ACTION TAKEN CONSUMMATED A VALID AND BINDING CONTRACTUAL OBLIGATION. THE RECORD SHOWS THAT 15 PROPOSALS WERE RECEIVED BY THE NAVY PURCHASING OFFICE, BROOKLYN, NEW YORK, ALL OF WHICH WERE EVALUATED BY AN EVALUATION COMMITTEE. PRICE WAS ONLY ONE FACTOR CONSIDERED BY THE COMMITTEE. OTHER FACTORS WHICH WERE EVALUATED WERE TECHNICAL APPROACH TO THE TASK AND EXPERIENCE. EACH PROPOSAL WAS EVALUATED ON A POINT BASIS FOR EACH FACTOR. THE COMMITTEE DECIDED, AFTER FINDING THE HIGHEST EVALUATED PROPOSER WAS AN UNACCEPTABLE SOURCE, THAT ON THE TOTAL POINT BASIS ITT, SECOND HIGHEST, HAD THE MOST FAVORABLE OVERALL PROPOSAL. YOUR COMPANY'S PROPOSAL RECEIVED RELATIVELY HIGH RATINGS ON TWO FACTORS, BUT IT DID NOT RATE WELL ON THE EXPERIENCE FACTOR. THE NET RESULT WAS THAT YOUR COMPANY'S PROPOSAL WAS TIED FOR THIRD IN THE RANKING. WHILE YOU INDICATE THAT THE GOVERNMENT FAILED TO GIVE AN HONEST EVALUATION OF METRON'S EXPERIENCE, EVEN IF YOU ARE CORRECT IN THAT REGARD, AND WE HAVE NO EVIDENCE THAT YOU ARE, WE HAVE NO WAY OF KNOWING THAT YOUR PROPOSAL WOULD HAVE RANKED SIGNIFICANTLY BETTER IF THE CIRCUMSTANCES WERE OTHERWISE, SINCE IT APPEARS THAT THE EVALUATORS DECIDED THAT ALL THINGS CONSIDERED THE SUCCESSFUL PROPONENT'S PROPOSAL WAS SUPERIOR TO ANY OTHER PROPOSAL RECEIVED. WE REITERATE, IT IS NOT THE FUNCTION OF OUR OFFICE TO TECHNICALLY EVALUATE THE PROPOSALS OR TO MAKE AN INDEPENDENT DETERMINATION WHETHER YOUR COMPANY SHOULD HAVE BEEN RATED HIGHER. WHILE WE HAVE NO BASIS TO QUESTION YOUR ASSERTIONS THAT YOUR COMPANY IS EXPERIENCED IN ALL AREAS CALLED FOR IN THE RFQ, IT MUST BE BORNE IN MIND THAT FAILUE OF A PROPOSAL TO BE ACCEPTED FOR AWARD DOES NOT NECESSARILY MEAN THAT SUCH PROPOSAL IS SERIOUSLY DEFICIENT IN ALL AREAS OF EVALUATION, BUT SIMPLY MEANS THAT ANOTHER PROPOSAL IS CONSIDERED TO BE MORE ADVANTAGEOUS TO THE GOVERNMENT. WE CANNOT SAY THAT THE EVALUATORS' CONCLUSIONS WERE MADE IN BAD FAITH, OR WERE NECESSARILY UNREASONABLE UNDER APPLICABLE LAW AND REGULATIONS. IN THIS CONNECTION, IT MUST BE NOTED THAT THE COURT OF CLAIMS HAS CONCLUDED THAT APPLICABLE PROCUREMENT STATUTES AND REGULATIONS CONFER BROAD DISCRETION ON THE CONTRACTING OFFICER; THAT THE AWARD OF A CONTRACT SHOULD BE UPHELD IF THE CONTRACTING OFFICER HAS ACTED IN GOOD FAITH AND IF SUCH ACTION IS REASONABLE UNDER THE LAW AND REGULATIONS; AND THAT A CONTRACT SHOULD BE CANCELLED AS VOID AB INITIO ONLY IF ITS ILLEGALITY IS CLEAR OR PALPABLE. SEE JOHN REINER AND COMPANY V UNITED STATES, 163 CT. CL. 381, 325 F.2D 438, CERT. DENIED, 377 U.S. 931; BROWN AND SON ELECTRICAL COMPANY V UNITED STATES, 163 CT. CL. 465, 325 F.2D 446. THE RECORD SHOWS NO EVIDENCE OF BAD FAITH ON THE PART OF THE PROCURING AGENCY, AND THE OFFERS APPEAR TO HAVE BEEN SUBMITTED AND EVALUATED IN STRICT ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE SOLICITATION. IN VIEW THEREOF, WE CANNOT CONCLUDE THAT THE NOTED DEFECTS ARE PALPABLE, OR THAT THE SUBJECT CONTRACT CAN BE CONSIDERED VOID AB INITIO.

FINALLY YOU REQUEST THE FOLLOWING RELIEF:

(1) THAT A LETTER BE ISSUED TO METRON BY THE APPROPRIATE GOVERNMENT OFFICE STATING THAT METRON WAS QUALIFIED FOR THE CONTRACT UNDER PROTEST.

(2) RECOMPENSE BE MADE TO YOUR FIRM FOR LOSS OF PROFIT AND TIME REQUIRED FOR PROPOSAL PREPARATION AND PROTEST ACTION.

WITH RESPECT TO YOUR FIRST REQUEST, YOU ARE IN ESSENCE ASKING AGAIN FOR A REVERSAL OF THE CONCLUSIONS REACHED BY THE NAVY AND OUR OFFICE. WE THINK THE RECORD REFLECTS THAT AFTER YOUR COMPANY SUBMITTED ITS PROPOSAL IT WAS CONSIDERED A QUALIFIED SOURCE, AND ITS PROPOSAL WAS EVALUATED. WE HAVE NO REASON TO DOUBT THAT YOUR FIRM WILL AGAIN BE CONSIDERED A QUALIFIED SOURCE ON SIMILAR PROCUREMENTS IN THE FUTURE. AS STATED EARLIER, THE REASON METRON DID NOT RECEIVE THE AWARD WAS THAT ANOTHER PROPOSAL WAS CONSIDERED TO BE MORE ADVANTAGEOUS TO THE GOVERNMENT.

WITH REFERENCE TO YOUR SECOND REQUEST, IT IS WELL SETTLED THAT A CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED BY A BIDDER OR OFFEROR IN PREPARING ITS OFFER MAY NOT BE ALLOWED FOR THE REASONS THAT THE FEDERAL PROCUREMENT STATUTES CONFER NO LITIGABLE RIGHTS ON OFFERORS IN THE EVENT THEIR OFFER IS NOT ACCEPTED. SEE PERKINS V LUKENS STEEL COMPANY, 310 U.S. 113; COLORADO PAVING COMPANY V MURPHY, 78 F.28. ACCORDINGLY, THERE IS NO RELIEF WHICH THE COURTS OR OUR OFFICE COULD ACCORD YOUR COMPANY IN THE CIRCUMSTANCES.

THE REBUTTAL ATTACHED TO YOUR LETTER OF MAY 27, 1969, IS FOR THE MOST PART A FURTHER RESPONSE TO THE NAVY REPORT RELIED UPON BY OUR OFFICE IN REACHING OUR EARLIER DECISION. WHILE WE WILL RECONSIDER OUR DECISIONS IF A MATERIAL MISTAKE OF LAW OR FACT IS ALLEGED AND PROVEN, THERE IS NO SHOWING IN YOUR REBUTTAL THAT OUR PRIOR DECISION INVOLVED ANY MISTAKE OF FACT, NOR ARE THERE ANY LEGAL AUTHORITIES OR PRECEDENTS CITED TO ESTABLISH ANY ERRORS OF LAW THEREIN; RATHER, YOU CONTINUE TO TAKE ISSUE WITH THE REASONS GIVEN BY NAVY FOR ITS EVALUATION OF YOUR EXPERIENCE. THERE IS NO NEW EVIDENCE PRESENTED TO REFUTE OUR FINDING THAT ALL PROPOSALS WERE EVALUATED ON THE SAME BASIS, USING THE SAME CRITERIA, OR THAT NAVY'S EVALUATION OF YOUR EXPERIENCE WAS PATENTLY WRONG OR IN ERROR.

THEREFORE, WE FIND NO BASIS FOR CONCLUDING THAT THE CONTRACT WAS NOT AWARDED IN GOOD FAITH, AND WE REMAIN OF THE OPINION THAT NO VALID BASIS EXISTS ON WHICH WE COULD DISTURB THE AWARD. THE DECISION OF MAY 20, 1969, DENYING YOUR PROTEST IS THEREFORE AFFIRMED.

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