B-155219, DEC. 1, 1964

TO NATIONAL SCIENTIFIC LABORATORIES, INC.:

IN YOUR LETTER OF SEPTEMBER 17, 1964, YOU PROTEST THE PROCUREMENT PROCEDURES EMPLOYED IN THE AWARD OF CONTRACTS PURSUANT TO REQUEST FOR PROPOSALS (RFP) 1Q-65, ISSUED APRIL 20, 1964, FROM WASHINGTON, D.C., BY THE UNITED STATES MARINE CORPS, FOR THE SOLICITATION OF OFFERS TO SUPPLY TECHNICAL NONPERSONAL INSTRUCTION SERVICES NEEDED IN CONNECTION WITH THE USE OF SPECIFIED TYPES OF MARINE CORPS EQUIPMENT AT VARIOUS INSTALLATIONS IN AND OUT OF THE UNITED STATES.

YOUR OFFER TO SUPPLY ITEMS 4/A) AND (B), WHICH CALL FOR THE FURNISHING OF 24 DOMESTIC AND 12 FOREIGN MAN-MONTHS OF SUCH SERVICES ON POWER UNITS, WAS LOWER ON ITEM 4/B) THAN THE PRICE OFFERED BY PHILCO, WHICH OFFEROR RECEIVED CONTRACTS FOR ALL OF ITEM 4 AS WELL AS 60 OTHER MAN-MONTHS OF SERVICE UNDER ITEM 1. ALTHOUGH YOU DO NOT ASSERT ENTITLEMENT TO THE AWARD FOR ITEM 4, YOU CONTEND (1) THAT THE MARINE CORPS SHOULD NOT HAVE REJECTED YOUR OFFER AS NONRESPONSIVE TO SECTION XII (D) OF THE RFP, WHICH REQUIRED BIDDERS TO SUBMIT A "COMPREHENSIVE PLAN OF IMPLEMENTATION OUTLINING THE MANNER IN WHICH THEY WOULD PROVIDE THE NECESSARY TECHNICAL SKILLS; " (2) THAT THE MARINE CORPS WAS NOT ACTING IN ACCORDANCE WITH ASPR 2-408.1 WHEN, AFTER AWARDING ITEMS TO PHILCO ON WHICH YOU HAD OFFERED A LOWER PRICE, IT REFUSED YOUR REQUEST TO SEE PHILCO'S PLAN OF IMPLEMENTATION; (3) THAT THE RFP REQUIREMENT THAT ALL OFFERORS SUBMIT THE RESUMES OF PERSONNEL SELECTED TO FULFILL THE WORK WAS VIOLATIVE OF PROCUREMENT REGULATIONS AND CANNOT BE RECONCILED WITH THE MARINE CORPS INTENTION TO PERMIT THE CONTRACTOR TO SUPPLY PERSONNEL OTHER THAN THOSE ON WHOM RESUMES HAD BEEN SUBMITTED; (4) THAT THE MARINE CORPS SHOULD HAVE CONSIDERED OFFERORS' PRICES FOR PER DIEM ALLOWANCES IN THE PRICE EVALUATION, IN WHICH CASE YOU MIGHT HAVE BEEN LOW FOR ITEM 4 (A) AS WELL AS 4 (B); AND (5), THAT THE PROCUREMENT OF NONTECHNICAL PERSONNEL SERVICES FROM MANUFACTURING COMPANIES VIOLATES ASPR OR PROCUREMENT POLICIES CONCERNING CONFLICTS OF INTEREST.

IN REGARD TO YOUR FIRST CONTENTION, THE MARINE CORPS MAINTAINS THAT SINCE YOUR OFFER DID NOT INCLUDE A "PLAN OF IMPLEMENTATION" IT COULD ASSESS NEITHER YOUR CAPABILITY TO PROMPTLY ASSIGN FIELD PERSONNEL NOR YOUR CAPABILITY TO FURNISH BACK-UP SUPPORT FOR SUCH PERSONNEL. IT ALSO MAINTAINS, AND WE HAVE CONFIRMED, THAT CONTRARY TO THE ALLEGATION IN YOUR LETTER TO US OF SEPTEMBER 17, INFORMATION ON THESE TWO ASPECTS OF CAPABILITY WERE NOT CONTAINED IN THE QUOTED ,MANUAL FOR THE ADMINISTRATION OF INDUSTRIAL AND COMMERCIAL TECHNICAL SERVICES PERSONNEL SERVING UNDER CONTRACT WITH THE MARINE CORPS," THE PROVISIONS OF WHICH WERE ACCEPTED BY EACH OFFEROR.

WE DO, HOWEVER, AGREE WITH THE SIGNIFICANCE YOU PLACE ON THE FACT THAT YOUR LOWER OFFER WAS FOR THE SERVICES OF ONLY ONE MAN, WHILE PHILCO'S OFFER ENCOMPASSED THE TOTAL PROCUREMENT OF 672 MAN-MONTHS, AND RESULTED IN AN AWARD COVERING THE ANNUAL SERVICES OF 8 MEN. THE RECORD DISCLOSES THAT THE NEXT SMALLEST QUANTITY OFFERED WAS 180 MAN MONTHS, AND WE HAVE BEEN INFORMALLY ADVISED BY THE CONTRACTING OFFICER THAT YOUR OFFER WAS THE ONLY ONE WHICH WAS NOT CONSIDERED BECAUSE IT DID NOT INCLUDE A "PLAN," OR OUTLINE OF THE DESIGN FOR PROVIDING SPECIFIED SERVICES WITH PERSONNEL OF SPECIFIED MINIMUM QUALIFICATIONS. THE RFP DISCLOSES NO AMPLIFICATION OF THE PHRASE "PLAN OF IMPLEMENTATION" BY WHICH OFFERORS OF SMALL QUANTITIES WOULD LEARN THAT THEY WERE REQUIRED TO DEMONSTRATE THEIR ASSIGNMENT AND BACK-UP SUPPORT CAPABILITIES WITHIN THE CONFINES OF A GENERAL OUTLINE, WHICH THEY MAY HAVE CONSIDERED NECESSARY ONLY FOR OFFERS OF QUANTITIES LARGE ENOUGH TO CONSTITUTE A COMPLEX NETWORK OF SERVICES. WITHOUT KNOWLEDGE OF THE SPECIFIC PURPOSE OR CONTENT OF THE REQUIRED "PLAN," WE THINK SUCH OFFERORS REASONABLY MAY HAVE ASSUMED THAT THEIR CAPABILITIES WOULD BE DETERMINED FROM INFORMATION ON PAST SIMILAR EXPERIENCE, WHICH INFORMATION THEY WERE REQUIRED TO SUBMIT AS "PROOF OF CAPABILITY," AND/OR FROM A CAPABILITY SURVEY, PROVIDED FOR IN PARAGRAPH (A) (2) OF SECTION XIII.

IN VIEW OF THESE CIRCUMSTANCES, IT WOULD NOT APPEAR TO HAVE BEEN INAPPROPRIATE OR UNDULY BURDENSOME FOR THE MARINE CORPS, IF IT COULD NOT OTHERWISE DETERMINE THE RESPONSIBILITY OR CAPABILITY OF YOUR FIRM, TO HAVE DISCUSSED WITH YOUR WASHINGTON OFFICE THE QUESTIONS OF HOW FAST YOU COULD ASSIGN ONE TECHNICIAN AND HOW YOU WOULD PROVIDE HIM WITH "BACK-UP SUPPORT.' HOWEVER, SINCE THE CONTRACT HAS ALREADY BEEN AWARDED TO PHILCO AND SINCE THERE IS NO MEANS TO DETERMINE WHAT COMPETITIVE RATING THE MARINE CORPS WOULD HAVE ASSIGNED YOUR OFFER, IF IT HAD BEEN CONSIDERED FOR EVALUATION, WE CANNOT CONCLUDE THAT THE AWARD WAS NOT MADE TO THE BEST ADVANTAGE OF THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. SEE ASPR 3-101.

IN REGARD TO YOUR CONTENTION THAT YOU WERE ENTITLED TO SEE PHILCO'S "PLAN OF IMPLEMENTATION," WE MUST ADVISE YOU THAT ASPR 2-408.1 IS APPLICABLE ONLY IN FORMALLY ADVERTISED PROCUREMENTS, WHEREAS THIS WAS A PROCUREMENT NEGOTIATED UNDER THE AUTHORITY OF 10 U.S.C. 2304 (A) (10) AND ASPR 3- 210.2. SECTION 3-507/B) OF ASPR, WHICH IS APPLICABLE TO NEGOTIATED PROCUREMENTS, REQUIRES ONLY A GENERAL EXPLANATION OF THE BASIS FOR REJECTING A PROPOSAL, AND, UPON THE OFFEROR'S REQUEST AND SUBJECT TO CERTAIN RESTRICTIONS," ADDITIONAL INFORMATION" ON THE REJECTION.

IN OUR OPINION, THE INTENT OF ASPR 3-507 IS TO PROVIDE AN UNSUCCESSFUL OFFEROR WITH A MEANS OF OBTAINING SUFFICIENTLY DETAILED INFORMATION TO ASCERTAIN WHY ITS PROPOSAL WAS REJECTED. IT CONFERS NO RIGHT UPON AN OFFEROR TO INVESTIGATE A COMPETITOR'S PROPOSAL IN ORDER TO QUESTION THE ACCEPTABILITY OF SUCH PROPOSAL. THAT THE MARINE CORPS STATED THE REASONS FOR REJECTING YOUR PROPOSAL WITH SUFFICIENT PARTICULARITY DOES NOT APPEAR OPEN TO DISPUTE, SINCE THE BASIS OF YOUR PROTEST IS NOT THAT YOU WERE UNABLE TO UNDERSTAND SUCH REASONS, BUT THAT THEY WERE INADEQUATE TO JUSTIFY THE REJECTION OF YOUR OFFER FOR ONLY 12 MAN-MONTHS OF SERVICE.

IN REGARD TO YOUR COMMENTS ON THE IMPROPRIETY OF THE RFP REQUIRING RESUMES OF ALL OF AN OFFEROR'S PERSONNEL SELECTED FOR THE JOB, THE MARINE CORPS REPORTS THAT THIS INFORMATION WAS REQUIRED IN ORDER TO EVALUATE THE OFFEROR'S CAPABILITY. IN THIS CONNECTION, WE ARE PERSUADED BY THE FURTHER ARGUMENT THAT IF OFFERORS WERE REQUIRED TO FURNISH THE IDENTICAL PERSONNEL ON WHOM RESUMES WERE SUBMITTED, THEY WOULD ALSO HAVE TO MAINTAIN SUCH PERSONNEL IN A STAND-BY STATUS FROM THE DATE THEIR OFFERS WERE SUBMITTED UNTIL THE DATE OF CONTRACT AWARD, AND SUCH A REQUIREMENT WOULD PLACE AN UNDUE BURDEN ON ALL OFFERORS. ALTHOUGH THE UTILITY OF THE REQUIRED RESUMES IS DIMINISHED BY THE FACT THAT THE CONTRACTOR IS NOT CONTRACTUALLY LIMITED TO THE USE OF PERSONNEL ON WHOM RESUMES HAVE BEEN SUBMITTED WITH THE PROPOSAL, WE KNOW OF NO REGULATION WHICH WOULD MAKE IT IMPROPER TO REQUIRE SUCH RESUMES. MOREOVER, WE HAVE ALREADY OBSERVED THAT UNDER THE PROVISIONS OF THE RFP, AN OFFEROR'S CAPABILITY WAS NOT MEASURED SOLELY BY THE "PLAN OF IMPLEMENTATION" AND THE RESUMES OF EMPLOYEES, BUT ALSO BY INFORMATION ON PREVIOUS EXPERIENCE IN FURNISHING SIMILAR TECHNICAL SERVICES AND POSSIBLY BY CAPABILITY SURVEYS. WE CANNOT AGREE THAT THERE IS A NECESSARY INCONSISTENCY IN REQUIRING AN OFFEROR TO SUBMIT RESUMES ON PERSONNEL HE INTENDS TO USE FOR FULFILLING THE SPECIFIED WORK REQUIREMENTS, AND AT THE SAME TIME PROVIDING THAT AS CONTRACTOR HE MAY, SUBJECT TO APPROVAL OF THE COMMANDANT OF THE MARINE CORPS, SELECT, REPLACE OR TRANSFER THE ACTUAL PERSONNEL AT THE TIME SERVICES ARE ORDERED OR DURING THEIR PERFORMANCE. SEE PARAGRAPH G OF SECTION II OF THE RFP.

IN REGARD TO YOUR POSITION THAT THE MARINE CORPS SHOULD HAVE CONSIDERED PRICES OFFERED FOR PER DIEM ALLOWANCES IN ITS COST EVALUATION, THE CONTRACTING OFFICER HAS INFORMALLY ADVISED US THAT THE RFP DID NOT PROVIDE FOR THE CONSIDERATION OF SUCH PRICES BECAUSE THE PAST USE OF PERSONNEL UNDER CIRCUMSTANCES REQUIRING PAYMENT OF PER DIEM ALLOWANCES HAS BEEN UNCOMMON AND ERRATIC. CONSEQUENTLY, NO REASONABLE WEIGHT COULD BE ASSIGNED TO THIS FACTOR FOR PURPOSES OF EVALUATION. IN VIEW OF THE EXPRESS PROVISION IN SECTION V/H) OF THE SCHEDULE THAT THE COMPENSATION RATES QUOTED SHOULD NOT CONTAIN ANY AMOUNT FOR PER DIEM OR SUBSISTENCE, IT MAY BE OPEN TO QUESTION WHETHER YOUR OFFER TO REQUIRE NO REIMBURSEMENT FOR SUCH ITEMS WAS STRICTLY IN ACCORDANCE WITH THE INTENT OF THE SOLICITATION, ALTHOUGH IT MIGHT PERHAPS HAVE BEEN PREFERABLE FOR THE GOVERNMENT TO STIPULATE A UNIFORM PER DIEM ALLOWANCE RATHER THAN TO PERMIT OFFERORS TO PROPOSE THEIR OWN.

IN REGARD TO YOUR CONTENTION THAT THE AWARD OF THIS CONTRACT TO A MANUFACTURING COMPANY CREATES A CONFLICT OF INTEREST PROHIBITED BY ASPR OR PROCUREMENT POLICY, IT IS THE POSITION OF THE MARINE CORPS THAT SUCH AWARD DOES NOT VIOLATE APPENDIX G OF ASPR. IN ADDITION, IT POINTS OUT THAT DEPARTMENT OF DEFENSE DIRECTIVE 3232.8 (VI/A ESTABLISHES THE FOLLOWING CRITERIA FOR THE SELECTION OF CONTRACTORS TO PROVIDE TECHNICAL SERVICES:

"A. GENERAL

"1. THE CONTRACTOR SHOULD BE A MANUFACTURER OF EQUIPMENT OR SYSTEMS FOR THE DEPARTMENT OF DEFENSE, OR

"2. THE CONTRACTOR SHOULD BE A FIRM OF DESIGN, MAINTENANCE, OR CONSULTING ENGINEERS ENGAGED IN DEFENSE OR COMMERCIAL EQUIPMENT ENGINEERING PROJECTS.'

IN VIEW OF THE NATURE OF THE SERVICES CALLED FOR UNDER THIS PROCUREMENT WE SEE NO IMPROPRIETY IN CONSIDERING EQUIPMENT MANUFACTURERS AS ELIGIBLE; IN FACT WE CAN SEE A POSSIBILITY THAT ELIMINATION OF SUCH MANUFACTURERS MIGHT IN SOME INSTANCES MAKE IT DIFFICULT TO OBTAIN SATISFACTORY SERVICES OF THE NATURE REQUIRED.

A COPY OF THIS LETTER HAS BEEN SENT TO THE COMMANDANT, UNITED STATES MARINE CORPS, FOR CONSIDERATION IN CONNECTION WITH ANY FUTURE PROCUREMENTS OF THE SAME TYPE.