B-161726, NOV. 1, 1967

B-161726, NOV. 1, 1967

BIDS - NEGOTIATION DECISION ON BEHALF OF SEVERAL FOREIGN LANGUAGE SCHOOLS RE PROTEST TO AWARD OF ALL OR NONE REQUIREMENTS TYPE CONTRACT FOR FOREIGN LANGUAGE TRAINING TO CCM (BERLITZ) BY DEFENSE SUPPLY SERVICE. A PERIOD OF 17 DAYS BETWEEN TIME REQUEST FOR PROPOSALS FOR FOREIGN LANGUAGE TRAINING CONTRACT WERE SOLICITED AND TIME FOR RECEIPT OF PROPOSALS DOES NOT VIOLATE ANY REQUIREMENTS OF NEGOTIATED PROCUREMENT AND FURTHER EVEN THOUGH ASPR 2-202.1, RELATING SOLELY TO ADVERTISED PROCUREMENT, PROVIDES 30 DAYS FOR NONSTANDARD PROCUREMENTS, SUCH REQUIREMENT NEED NOT BE OBSERVED IN URGENT CASES NOT PERMITTING DELAY. WHERE OFFERORS ARE NOTIFIED THAT AWARD MAY BE MADE WITHOUT DISCUSSION OF PROPOSALS AND RECORD SHOWS THAT ADEQUATE COMPETITION WAS OBTAINED FACT THAT NO NEGOTIATIONS WERE UNDERTAKEN BY GOVERNMENT, EVEN THOUGH CONTRACT IS NEGOTIATED, DOES NOT PRECLUDE AN OTHERWISE PROPER AWARD. AN AWARD ON AN ALL OR NONE BASIS UNDER AN INVITATION WHICH DID NOT EXPRESSLY PROVIDE FOR NOR PRECLUDE SUCH AN AWARD IS PROPER. A DETERMINATION BY A PROCURING AGENCY AND SMALL BUSINESS ADMINISTRATION THAT A PROCUREMENT WILL NOT BE SET ASIDE FOR SMALL BUSINESS IS WITHIN THE PROVINCE OF THE PROCURING AGENCY AND SBA. 41 COMP. GEN. 351, 362. AN OFFEROR WHO PROPOSED A 22.726 PERCENT ACROSS THE BOARD REDUCTION ON AN ALL OR NONE BASIS FROM ITS BASIC OFFER WHICH CONTAINED SPECIFIC COST QUOTATIONS FOR EACH ITEM IS SUFFICIENTLY DEFINITE AS TO THE INTENDED PRICE TO ELIMINATE THE NECESSITY OF EXTRANEOUS EVIDENCE AND THEREFORE SUCH A PRORATED REDUCTION FOR INDIVIDUAL ITEMS IS NOT LEGALLY OBJECTIONABLE. A SUCCESSFUL OFFEROR WHO, AFTER THE TIME SET FOR RECEIPT OF PROPOSALS, WAS PERMITTED TO SUBMIT SAMPLES THAT WERE THOUGHT TO BE UNNECESSARY BECAUSE OF CERTAIN EXEMPTIONS WAS NOT IMPROPER SINCE IN NEGOTIATED PROCUREMENTS THERE IS NO IMPROPRIETY IN DEVELOPING, AFTER OPENING, FURTHER DATA AS TO ITEMS OFFERED. EVEN IN ADVERTISED PROCUREMENTS, FAILURE TO FURNISH BID DATA DOES NOT REQUIRE REJECTION WHERE PURPOSE OF DATA IS USED TO DETERMINE A BIDDER'S RESPONSIBILITY.

TO MILLER, MCCARTHY, EVANS AND CASSIDY:

REFERENCE IS MADE TO THE LETTER OF JUNE 28, 1967, FROM THE LACAZE ACADEMY OF LANGUAGES, THE HISPANO-AMERICAN LANGUAGE SCHOOL, VOX INSTITUTE OF LANGUAGES, AND THE SANZ SCHOOL OF LANGUAGES, AND YOUR SUBSEQUENT LETTERS WRITTEN IN THEIR BEHALF PROTESTING AGAINST AN AWARD TO CROWELL, COLLIER, AND MACMILLAN (CCM) UNDER REQUEST FOR PROPOSALS (RFP) NO. DAHC 15-67-R- 0093 ISSUED BY THE DEFENSE SUPPLY SERVICE WASHINGTON ON MAY 23, 1967, WITH TIME FOR RECEIPT SET FOR 4:45 P.M., JUNE 9, 1967, WHICH WAS LATER EXTENDED TO 12:00 NOON, JUNE 12, 1967.

THE RFP WAS FOR FOREIGN LANGUAGE TRAINING TO BE PROVIDED IN THE WASHINGTON, D.C. AREA DURING FISCAL YEAR 1968 UNDER A REQUIREMENTS TYPE CONTRACT. ARTICLE I NOTIFIED OFFERORS THAT THERE WAS A POSSIBILITY THAT THE AWARD WOULD BE MADE WITHOUT DISCUSSION OF THE INITIAL OFFERS WITH OFFERORS. ARTICLE VI B PROVIDED THAT FOR THE PURPOSE OF EVALUATING PROPOSALS OFFERORS SHOULD FURNISH A LIST OF TEXTS AND TAPES BY LANGUAGE AND SAMPLE COPIES THEREOF WHICH MUST BE RECEIVED BEFORE THE TIME SET FOR RECEIPT OF PROPOSALS AND THAT FAILURE TO FURNISH TEXTS AND TAPES WOULD REQUIRE REJECTION OF A PROPOSAL, EXCEPT THAT (ARTICLE X) SAMPLE SETS OF FOREIGN SERVICE INSTITUTE AND DEFENSE LANGUAGE INSTITUTE MATERIALS NEED NOT BE SUBMITTED. ARTICLE VI E PROVIDED THAT PRIOR TO RECEIPT OF AWARD, AN OFFEROR SHOULD HAVE AVAILABLE, AS A MINIMUM, SUFFICIENT CLASSROOMS AS DETERMINED BY THE CONTRACTING OFFICER TO SATISFY THE INITIAL PROGRAMMED COURSES. ARTICLE XXVI PROVIDED THAT PROPOSALS WOULD NOT BE CONSIDERED UNLESS THE OFFEROR IS REGULARLY ENGAGED IN THE BUSINESS COVERED BY THESE SPECIFICATIONS. ARTICLE XVI PROVIDED AS FOLLOWS:

"OFFEROR'S ATTENTION IS INVITED TO SCHEDULE D. THIS SCHEDULE DELINEATES NINE LANGUAGE GROUPS UPON WHICH OFFERS WILL BE MADE. AWARDS WILL BE MADE COMPETITIVELY FOR EACH SEPARATE GROUP. EACH GROUP WILL BE AWARDED AS A UNIT.

"FORMS FOR OFFERING PROPOSALS ARE PROVIDED IN SCHEDULE D. OFFERS WILL INCLUDE AN OFFER ON EACH COURSE LENGTH PROGRAMMED FOR EACH LANGUAGE INCLUDED IN THE GROUP/S) ON WHICH AN OFFER IS SUBMITTED AND A COMPOSITE TOTAL OFFER FOR THE GROUP. THE GROUP TOTAL WILL CONSIST OF AN EXTENSION OF THE SECTION COST TIMES THE NUMBER OF PROGRAMMED SECTIONS SHOWN IN SCHEDULE D (AND THE MATERIAL COST PER STUDENT).

"EVALUATION OF OFFERS WILL BE BASED PRIMARILY ON PRICE FOR EACH GROUP AND A DETERMINATION OF RESPONSIBILITY TO BE ESTABLISHED DURING A PRE-AWARD SURVEY TO BE CONDUCTED BY THE CONTRACTING OFFICER.' BY AMENDMENT NO. 1 DATED JUNE 9, 1967, ISSUED PURSUANT TO A PREPROPOSAL CONFERENCE HELD THAT DAY THE WORDS DELINEATED BY BRACKETS, ABOVE, WERE DELETED FROM THE RFP.

IT IS ADMINISTRATIVELY REPORTED THAT THE CONTRACTING OFFICER DETERMINED ON MAY 18, 1967, THAT THE USE OF FORMAL ADVERTISING IN THIS INSTANCE WOULD NOT BE FEASIBLE OR PRACTICABLE AND THAT SINCE THE SERVICES TO BE PROCURED ARE FOR EDUCATIONAL TRAINING OF PERSONNEL TO BE RENDERED BY EDUCATIONAL INSTITUTIONS, NEGOTIATION OF THE PROCUREMENT WAS AUTHORIZED BY 10 U.S.C. 2304 (A) (5) AND ASPR 3-205 ENTITLED SERVICES OF EDUCATIONAL INSTITUTIONS.

THE RECORD SHOWS THAT SIX SCHOOLS SUBMITTED PROPOSALS IN THE FORM REQUESTED, NAMELY, SANZ SCHOOL OF LANGUAGES, INSTITUTE OF MODERN LANGUAGES, HISPANO-AMERICAN LANGUAGE SCHOOL, VOX INSTITUTE OF LANGUAGES, LACAZE ACADEMY OF LANGUAGES, AND CCM. CCM HAD PREVIOUSLY PURCHASED THE BERLITZ SCHOOLS OF LANGUAGES WHICH WAS AND HAS BEEN FOR SOMETIME REGULARLY ENGAGED IN THE BUSINESS OF PROVIDING LANGUAGE INSTRUCTION. CCM ALSO SUBMITTED AN "ALTERNATE BID A" ON AN AGGREGATE OR ,ALL-OR-NONE" BASIS, EXPLAINING IT AS FOLLOWS: "THE TOTAL COST TO THE GOVERNMENT IS THUS REDUCED $484,054.02 OR 22.726 PERCENT BY AWARDING THE TOTAL NINE GROUPS IN THIS MANNER.' THAT FIGURE OF $484,054.02 WAS THE DIFFERENCE BETWEEN ITS ALL-OR-NONE OFFER AND THE TOTAL OF ITS INDIVIDUAL GROUP BIDS. THE PROCURING ACTIVITY COMPUTED CCM'S PRICE PER GROUP ON "ALTERNATE A" BY APPLYING THE 22.726 PERCENT TO THE INDIVIDUAL ITEMIZED PRICES QUOTED IN ITS OTHER PROPOSAL.

THE CIRCUMSTANCES SURROUNDING THE DETERMINATION OF THE RESPONSIBILITY OF THE OFFERORS AND THE RATIONALE USED IN ARRIVING AT THE LOWEST RESPONSIBLE OFFEROR IS SET FORTH, IN PART, AS REPORTED BY THE ADMINISTRATIVE AGENCY AS FOLLOWS:

"C. THE FOLLOWING IS A TABULATION BY LANGUAGE GROUP OF THE NUMBER OF AVAILABLE CLASSROOMS NECESSARY FOR AN OFFEROR TO QUALIFY UNDER ARTICLE VI. E. 1. OF THE RFP * * *:

GROUP CLASSROOMS

AFRICAN 4

WESTERN ASIATIC 4

EASTERN ASIATIC 0

SOUTHEAST ASIAN 8

VIETNAMESE 6

MIDDLE EASTERN 1

EASTERN EUROPE 7

WESTERN EUROPE 14

WESTERN HEMISPHERE 1

"E. ON 15 JUNE 1967 A PRE-AWARD SURVEY OF ALL OFFERORS, EXCEPT THE INSTITUTE FOR MODERN LANGUAGES, WAS MADE. IML WAS NOT SURVEYED BECAUSE ITS OFFERED PRICES WERE SO HIGH AS TO MAKE IT UNLIKELY THAT IT WOULD BE CONSIDERED FOR AWARD ON ANY GROUP OF LANGUAGES. * * * "THE FOLLOWING IS A TABULATION OF THE NUMBER OF CLASSROOMS THAT EACH SCHOOL HAD AVAILABLE, EITHER ACTUALLY OR, IN ORDER TO BE AS FAIR AS POSSIBLE THROUGH AN OPTION:

SCHOOL CLASSROOMS

SANZ 36

INST. MOD. LANG. NOT SURVEYED

HISPANO-AMER.

VOX 3

LACAZE 6

CROW. COL. MAC. (CCM) 45

"F. MATCHING EACH OFFERORS PRICES WITH HIS AVAILABLE FACILITIES (CLASSROOMS), WE ARRIVED AT TWO POSSIBILITIES OF AWARD BY LANGUAGE GROUP: LANGUAGE GROUP CLASSROOMS CONTRACTOR CLASSROOMS PRICE

REQUIRED REMAINING

AVAILABLE ------------- ----------- --------- - ----------- ------ AFRICAN 4 SANZ (32) $167,641.25 W. ASIATIC 4 CCM (41) 329,724.22 E. ASIATIC

0 LACAZE ( 6) 104,250.00 S.E. ASIAN * 8 SANZ

(24) 265,230.00 VIETNAMESE 6 LACAZE ( 0) 152,850.00 MID-EASTERN ** 1 SANZ (23) 224,945.00 E. EUROPE *** 7

SANZ (16) 195,247.50 W. EUROPE **** 14 SANZ ( 2) 144,397.75 W. HEMISPHERE 1VOX ( 2) 88,200.00

TOTAL AGGREGATE $1,672,485.72

"* LOW OFFEROR LACAZE HAS ONLY SIX CLASSROOMS.

** LOW OFFEROR LACAZE HAS NO CLASSROOMS REMAINING AT THIS POINT.

*** LOW OFFEROR VOX HAS ONLY THREE CLASSROOMS. **** LOW OFFEROR VOX HAS ONLY THREE CLASSROOMS, SECOND LOW OFFEROR

HISPANO HAS ONLY FOUR CLASSROOMS. "A SECOND METHOD WHICH WOULD HAVE BEEN WITHIN THE CLASSROOM AVAILABILITY:

AFRICAN-SANZ VIETNAMESE-SANZ

W. ASIATIC-CCM MID-EASTERN-LACAZE

E. ASIATIC-LACAZE E. EUROPE-SANZ

S. E. ASIAN-SANZ W. EUROPE-CCM

W. HEMISPHERE-VOX OR LACAZE "HOWEVER, THIS METHOD WOULD HAVE BEEN MOST COSTLY TO THE GOVERNMENT ($1,712,962.38) AND WAS REJECTED.

"G. AT THIS POINT, AFTER ALLOCATING THE DIFFERENT LANGUAGE GROUPS TO THE LOWEST RESPONSIBLE OFFEROR IN EACH CASE, IT BECOMES EVIDENT THAT THE -ALL OR NONE- OFFER OF CCM IS THE LOWEST - $1,645,915.00.'

THE ADMINISTRATIVE OFFICE FURTHER REPORTS THAT THE REASONABLENESS OF THE CCM OFFER WAS DETERMINED BY ADEQUATE COMPETITION AND AFTER COMPARISON WITH PRIOR YEAR PRICES; THAT A PRE-AWARD CONFERENCE WAS HELD WITH CCM ON JUNE 21, 1967, TO DISCUSS SOME ASPECTS OF THEIR PROPOSAL AND TO INSURE THAT THEY UNDERSTOOD THE GOVERNMENT'SINTERPRETATION OF SOME TERMS OF THE PROPOSED CONTRACT, BUT THAT NO NEGOTIATIONS WERE ENTERED INTO WITH RESPECT TO ANY TERMS OF THE PROPOSAL. IN THIS CONNECTION THE RECORD SHOWS THAT AT THAT CONFERENCE CCM WAS ASKED WHY THEY DID NOT SUBMIT SAMPLES OF MATERIALS, OTHER THAN THOSE OF THE DEFENSE LANGUAGE INSTITUTE AND FOREIGN SERVICE INSTITUTE THAT THEY PROPOSE TO USE, TO WHICH THEY ANSWERED THAT SINCE THE MATERIAL PROPOSED WAS PEACE CORPS MATERIAL, THEY FELT THAT THE EXEMPTION RELATING TO DEFENSE LANGUAGE INSTITUTE AND FOREIGN SERVICE INSTITUTE MATERIALS APPLIED EQUALLY. THEY WERE THEREUPON ADVISED THAT THIS WAS NOT SO, AND THAT IF THEY WANTED TO KEEP THE PROPOSAL OPEN FOR CONSIDERATION THEY WOULD HAVE TO SUBMIT BY NOON, JUNE 23, 1967, SAMPLES OF THE MATERIALS PROPOSED TO BE USED OTHER THAN THE EXEMPTED MATERIALS, OR IF THEY COULD NOT OBTAIN COPIES OF THE MATERIALS PROPOSED TO BE USED THEY COULD DESCRIBE THEM FULLY. AWARD TO CCM WAS MADE ON JUNE 23, 1967.

BY LETTER DATED JUNE 23, 1967, ATTACHING A CERTIFICATE OF URGENCY EXECUTED BY THE CONTRACTING OFFICER AND SUPPORTING DOCUMENTS, THE DEFENSE SUPPLY SERVICE-WASHINGTON ADVISED THE SMALL BUSINESS ADMINISTRATION (SBA) THAT IT HAD REJECTED, BECAUSE AS EVIDENCED BY THE RESULTS OF PRE-AWARD SURVEYS, THE OFFERORS DID NOT POSSESS ADEQUATE FACILITIES (CLASSROOMS), THE OFFERS OF LACAZE ACADEMY OF LANGUAGES WITH RESPECT TO THE S.E. ASIAN, MID-EASTERN, AND W. HEMISPHERE LANGUAGE GROUPS; VOX INSTITUTE OF LANGUAGES WITH RESPECT TO E. EUROPEAN AND W. EUROPEAN LANGUAGE GROUPS AND THE HISPANO-AMERICAN LANGUAGE SCHOOL WITH RESPECT TO THE W. EUROPEAN LANGUAGE GROUP. WHILE ASPR 1-705.4 (C) PROVIDES GENERALLY THAT IF A PROPOSAL OF A SMALL BUSINESS CONCERN IS TO BE REJECTED SOLELY BECAUSE THE CONTRACTING OFFICER HAS DETERMINED THE CONCERN TO BE NONRESPONSIBLE AS TO CAPACITY OR CREDIT, THAT MATTER SHOULD BE REFERRED TO THE SBA FOR POSSIBLE CERTIFICATION THEREBY AS TO CAPACITY AND CREDIT, SUBSECTION IV THEREOF PROVIDES THAT:

"A REFERRAL NEED NOT BE MADE TO SBA IF THE CONTRACTING OFFICER CERTIFIES IN WRITING THAT THE AWARD MUST BE MADE WITHOUT DELAY, INCLUDES SUCH CERTIFICATE AND SUPPORTING DOCUMENTATION IN THE CONTRACT FILE, AND PROMPTLY FURNISHES A COPY TO THE SBA REPRESENTATIVE.'

IN THIS RESPECT THE CERTIFICATE EXECUTED BY THE CONTRACTING OFFICER READS AS FOLLOWS:

"I HEREBY CERTIFY THAT IN ORDER FOR THE FIRST CONTRACT TRAINING COURSES TO BEGIN ON 10 JULY 1967, FOR THE DEFENSE LANGUAGE INSTITUTE, DELIVERY ORDERS MUST BE ISSUED TO THE SUCCESSFUL CONTRACTOR BY 23 JUNE 1967. PERSONNEL TO ATTEND THESE COURSES HAVE BEEN ORDERED BY THE MILITARY DEPARTMENTS TO REPORT TO DLI BY 6 JULY 1967. MANY OF THESE PERSONNEL ARE ENROUTE. AWARD OF THE FISCAL YEAR 1968 CONTRACT MUST BE MADE BY 23 JUNE 1967.'

IT IS STATED ON BEHALF OF THE PROTESTING BIDDERS THAT SUFFICIENT TIME WAS NOT ALLOWED BY THE GOVERNMENT AFTER ISSUANCE AND DELIVERY OF SOLICITATIONS FOR THE OFFERORS TO STUDY, PREPARE, AND FILE THEIR OFFERS, NOTWITHSTANDING THAT NEW, VARIOUS, AND COMPLICATED SPECIFICATIONS WERE CONTAINED THEREIN AND THAT THE EXTENSION OF TIME FOR FILING GRANTED AFTER THE PRESOLICITATION CONFERENCE WAS INSUFFICIENT. IN THIS REGARD THE RECORD SHOWS THAT A TOTAL PERIOD (INCLUDING THE EXTENSION) OF 17 DAYS ELAPSED BETWEEN THE TIME THE RFP WAS SOLICITED AND THE TIME SET FOR RECEIPT OF PROPOSALS. IN OUR VIEW THAT PROCEDURE DID NOT VIOLATE ANY OF THE REQUIREMENTS OF NEGOTIATED PROCUREMENTS. FURTHERMORE EVEN THOUGH ASPR 2- 202.1, RELATING SOLELY TO ADVERTISED PROCUREMENT, PROVIDES GENERALLY THAT BIDDING TIME SHALL NOT BE LESS THAN 30 CALENDAR DAYS WHEN PROCURING OTHER THAN STANDARD COMMERCIAL ARTICLES OR SERVICES, THAT SECTION STATES THAT THIS RULE NEED NOT BE OBSERVED IN SPECIAL CIRCUMSTANCES WHERE, AS HERE, THE URGENCY FOR THE SERVICES DOES NOT PERMIT SUCH DELAY.

IT IS FURTHER STATED THAT NO NEGOTIATIONS WERE UNDERTAKEN BY THE GOVERNMENT ALTHOUGH THE CONTRACT WAS DESIGNATED A NEGOTIATED ONE. IN THIS RESPECT YOUR ATTENTION IS INVITED TO ARTICLE I OF THE RFP WHICH PROVIDED THAT THERE WAS A POSSIBILITY THAT THE AWARD WOULD BE MADE WITHOUT DISCUSSION OF THE INITIAL OFFERS WITH OFFERORS AND TO ASPR 3 805.1 WHICH STATES THAT WRITTEN OR ORAL DISCUSSIONS NEED NOT NECESSARILY BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE WHERE IT CAN CLEARLY BE DEMONSTRATED FROM THE EXISTENCE OF ADEQUATE COMPETITION THAT ACCEPTANCE OF THE MOST FAVORABLE INITIAL PROPOSAL WITHOUT DISCUSSION WOULD RESULT IN A FAIR AND REASONABLE PRICE AND THAT ALL OFFERORS, AS HERE, HAVE BEEN NOTIFIED OF THE POSSIBILITY THAT AWARD MAY BE MADE WITHOUT DISCUSSION OF PROPOSALS RECEIVED. THESE PROVISIONS ARE SPECIFICALLY AUTHORIZED BY 10 U.S.C. 2304 (G), AND IN THIS INSTANCE IT IS APPARENT FROM THE RECORD THAT THERE WAS ADEQUATE COMPETITION. IT IS PROTESTED THAT A TOTAL AWARD WAS MADE TO ONE BIDDER FOR THE ENTIRE CONTRACT WITHOUT REFERENCE TO AND WITHOUT DISTINGUISHING THE VARIOUS LANGUAGE GROUPS, NOTWITHSTANDING THE PROVISIONS OF ARTICLE XVI QUOTED ABOVE. IN THIS RESPECT IT SHOULD BE POINTED OUT THAT WHILE THE RFP DID NOT STATE THAT AWARD WOULD BE MADE ON AN ALL-OR-NONE BASIS, NEITHER DID IT EXPRESSLY PRECLUDE SUCH A PROPOSAL. AN ALL-OR-NONE BID HAS NEVER BEEN CONSIDERED AN ALTERNATE BID, AND IN THE ABSENCE OF A SPECIFIC PROVISION TO THE CONTRARY AWARD OF ALL LOTS TO ONE BIDDER ON AN ALL-OR NONE BID, WHERE NO MORE ADVANTAGEOUS PRICE MAY BE OBTAINED OTHERWISE, HAS BEEN HELD PROPER BY OUR OFFICE. SEE 35 COMP. GEN. 383 AND CASES CITED THEREIN; SEE ALSO 36 COMP. GEN. 177, IN WHICH WE HELD THAT IT WAS NOT PROPER FOR A CONTRACTING OFFICER TO REFUSE TO CONSIDER SUCH A BID.

PROTEST IS ALSO MADE THAT THIS PROCUREMENT WAS NOT SET ASIDE FOR SMALL BUSINESS CONCERNS. IN THIS REGARD THE DEFENSE SUPPLY SERVICE WASHINGTON REPORTS AS FOLLOWS:

"4. THE DSS-W SMALL BUSINESS SPECIALIST DETERMINED ON 5 MAY 1967 THAT SPECIAL CONSIDERATION TO SMALL BUSINESS FIRMS IN THIS INSTANCE WOULD NOT BE PRACTICABLE * * *. A TOTAL SET-ASIDE WAS REJECTED BECAUSE IT WAS NOT BELIEVED THAT ANY SMALL BUSINESS FIRM HAD THE CAPABILITY OF HANDLING THE TOTAL REQUIREMENT. A PARTIAL SET-ASIDE OF A CERTAIN GROUP OR GROUPS OF LANGUAGES WAS CONSIDERED BUT IN ORDER TO QUALIFY AS A SMALL BUSINESS A SCHOOL WOULD HAVE TO MEET THE CRITERIA OF ASPR 1 701.1 (A) (2) D.1. WHICH STATES THAT THE AVERAGE ANNUAL SALES OR RECEIPTS OF THE CONCERN AND ITS AFFILIATES FOR THE PRECEDING THREE FISCAL YEARS MUST NOT EXCEED $1 MILLION. FROM OUR KNOWLEDGE OF THE AMOUNT OF BUSINESS PLACED WITH SOME OF THESE FIRMS UNDER OUR CONTRACTS, WE WERE NOT SURE HOW MANY COULD NOW QUALIFY AS -SMALL-. THE TOTAL NUMBER OF SCHOOLS IN THE WASHINGTON AREA ON OUR BIDDERS LIST IS ONLY EIGHT. LAST YEAR SIX PROPOSALS WERE SUBMITTED. IT WAS ALSO NOTED THAT LAST YEAR'S PROCURING OFFICE, THE ARMY MATERIEL COMMAND, HAD NOT SET-ASIDE ANY PORTION OF THE FY 1967 REQUIREMENT. THUS, THE DSS-W SMALL BUSINESS SPECIALIST DETERMINED, SO AS NOT TO FURTHER LIMIT COMPETITION, THAT THE PROCUREMENT SHOULD BE MADE WITHOUT A SET-ASIDE, BUT THAT ALL SMALL BUSINESSES ON OUR LIST FOR THESE SERVICES SHOULD BE SOLICITED.'

THE DECISION AS TO WHETHER A PROCUREMENT SHOULD BE SET ASIDE IN WHOLE OR IN PART FOR SMALL BUSINESS CONCERNS IS WITHIN THE PROVINCE OF THE ADMINISTRATIVE AGENCY AND THE SMALL BUSINESS ADMINISTRATION. THE GENERAL POLICY OF THE DEPARTMENT OF DEFENSE REGARDING THE PLACEMENT OF CONTRACTS WITH SMALL BUSINESS CONCERNS IS CONTAINED IN PART 7 OF SECTION 1 OF THE ARMED SERVICES PROCUREMENT REGULATION. NEITHER THIS REGULATION NOR THE PROVISIONS OF THE SMALL BUSINESS ACT MAKE IT MANDATORY THAT THERE BE SET ASIDE FOR SMALL BUSINESS ANY PARTICULAR PROCUREMENT. IN VIEW THEREOF NO LEGAL BASIS EXISTS FOR OBJECTION BY OUR OFFICE TO THE ACTION TAKEN. COMP. GEN. 351, 362.

IT HAS ALSO BEEN CONTENDED THAT THE ALTERNATE OFFER OF CCM WAS NONRESPONSIVE IN THAT WHILE IT GAVE AN AGGREGATE TOTAL TO EACH OF THE NINE LANGUAGE GROUPS, IT DID NOT CONTAIN A SECTION BY SECTION BREAKDOWN THEREOF. WE ARE OF THE VIEW THAT IT IS ESSENTIAL TO A VALID BID OR OFFER THAT IT BE SUFFICIENTLY DEFINITE TO ENABLE THE OFFEREE TO ACCEPT IT WITH CONFIDENCE THAT THE CONTRACT SO MADE CAN BE INTERPRETED AND ENFORCED WITHOUT RESORT TO EXTRANEOUS EVIDENCE. IN THIS INSTANCE, HOWEVER, WE SEE NO SUCH AMBIGUITY IN CCM'S OFFER AS TO REQUIRE EXTRANEOUS EVIDENCE TO ESTABLISH ITS INTENT WITH RESPECT THERETO. IT IS CLEAR FROM THE RECORD THAT CCM OFFERED A 22.726 PERCENT ACROSS THE BOARD REDUCTION FROM ITS BASIC OFFER WHICH CONTAINED SPECIFIC SECTION COST QUOTATIONS, AND THAT THERE IS NO QUESTION AS TO THE ENFORCEABILITY OF AN AWARD ON THE BASIS OF PRO-RATING THE REDUCTION TO EACH INDIVIDUAL ITEM. SEE 36 COMP. GEN. 177, 178.

OBJECTION IS ALSO MADE TO THE FACT THAT AFTER THE TIME SET FOR RECEIPT OF PROPOSALS CCM WAS PERMITTED TO SUBMIT SAMPLES OR DESCRIPTIONS OF THE PEACE CORPS MATERIALS IT INTENDED TO USE. THE RECORD SHOWS THAT THE RFP EXEMPTED FROM THE SAMPLE REQUIREMENTS DEFENSE LANGUAGE INSTITUTE AND FOREIGN SERVICE INSTITUTE MATERIALS, AND CCM'S INTERPRETATION OF SUCH EXEMPTION TO BE SIMILARLY APPLICABLE TO PEACE CORPS MATERIALS DOES NOT APPEAR TO HAVE BEEN ENTIRELY UNREASONABLE, SINCE THEY WERE ALSO GENERATED BY THE GOVERNMENT. IT IS WELL ESTABLISHED THAT IN NEGOTIATED PROCUREMENTS, THERE GENERALLY IS NO IMPROPRIETY IN DEVELOPING, AFTER OPENING OF PROPOSALS, FURTHER DATA AS TO THE ITEMS OFFERED BY THE SUCCESSFUL OFFEROR. B-149438, MARCH 26, 1963. EVEN IN FORMALLY ADVERTISED PROCUREMENT WE HAVE REPEATEDLY HELD THAT A BID MAY NOT PROPERLY BE REJECTED FOR FAILURE TO FURNISH WITH THE BID DATA REQUIRED BY THE INVITATION, WHERE IT APPEARS THAT THE PURPOSE OF THE DATA WAS, AS IT APPARENTLY WAS IN THIS INSTANCE, TO DETERMINE THE BIDDER'S RESPONSIBILITY. SEE 39 COMP. GEN. 247; ID. 665; ID. 881; 41 COMP. GEN. 555; 42 COMP. GEN. 464.

IN VIEW OF THE FOREGOING WE DO NOT FEEL THAT WE CAN PROPERLY REFUSE TO REGARD THE AWARD MADE AS A VALID AND PROPER ONE. ACCORDINGLY, THE PROTEST MUST BE DENIED.