B-167302, OCT. 17, 1969

B-167302, OCT. 17, 1969

SPECIFICATIONS--CONFORMABILITY OF EQUIPMENT, ETC; OFFERED--TECHNICAL DEFICIENCIES--ADMINISTRATIVE DETERMINATION CONCLUSIVENESS UNDER REQUEST FOR PROPOSALS FOR MATERIAL AND SERVICES TO REFURBISH LOUNGE AND WARDROOMS ABOARD U.S.S. AMERICA, WITH MINIMUM REQUIREMENTS SET FORTH IN GENERAL TERMS, UNSUCCESSFUL OFFEROR WHO CONTENDS THAT MINISCULE PRICE DIFFERENTIAL IN FAVOR OF LOW OFFEROR, IN LIGHT OF ALLEGED SUPERIOR QUALITY OF PROTESTANT'S PROPOSAL, RESULTED IN UNFAIR EVALUATION, OFFERS NO BASIS FOR OBJECTION SINCE IT IS PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS TO SUPPLY GOVERNMENTAL NEEDS AND TO DETERMINE FACTUALLY WHETHER ARTICLES MEET THOSE SPECIFICATIONS. ABSENT CLEAR SHOWING OF UNREASONABLENESS, FAVORITISM OR VIOLATION OF STATUTES OR REGULATIONS, PROCURING ACTIVITY'S DETERMINATION AS TO WHICH PROPOSAL IS TECHNICALLY SUPERIOR, WILL NOT BE QUESTIONED. IN NEGOTIATED PROCUREMENT PRICE IS NOT SOLE CONSIDERATION.

TO HUNT AND LAKE:

REFERENCE IS MADE TO A TELEGRAM DATED JUNE 23, 1969, FROM YOUR CLIENT, VILLAGE INTERIORS, LTD., PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER SOLICITATION NO. N00189-69-R-0336, ISSUED BY THE NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA, TO COFERS, INC. ON AUGUST 1, 1969, BY TELEPHONE, YOU ADVISED OUR OFFICE THAT ON OR ABOUT AUGUST 18, 1969, YOU WOULD SUBMIT COMMENTS ON THE ADMINISTRATIVE REPORT. BY LETTER DATED SEPTEMBER 5, 1969, OUR OFFICE REQUESTED ADVICE AS TO YOUR INTENTION TO COMMENT ON THE REPORT WITHIN THE NEXT WEEK. TO DATE, WE HAVE RECEIVED NO COMMUNICATION FROM EITHER YOU OR VILLAGE INTERIORS, LTD.; WE THEREFORE ARE CONSIDERING THE PROTEST ON THE RECORD BEFORE US.

THE RECORD DISCLOSES THAT THE REQUEST FOR PROPOSALS, A TOTAL SMALL BUSINESS SET-ASIDE, WAS ISSUED ON MAY 19, 1969, AND SOLICITED OFFERS TO FURNISH MATERIAL AND SERVICES NECESSARY TO REFURBISH THE WARDROOM LOUNGE AND WARDROOMS 1 AND 2 ABOARD THE U.S.S. AMERICA (CVA-66). THE SOLICITATION SCHEDULE SET FORTH IN GENERAL TERMS THE GOVERNMENT'S MINIMUM REQUIREMENTS. OFFERORS WERE REQUIRED TO SUBMIT A WRITTEN ITEMIZED DEFINITIVE LIST OF WHAT THEY PROPOSED TO FURNISH IN DETAIL WITHOUT PRICES AND TO PRICE INDIVIDUAL ITEMS AS SET FORTH IN THE SCHEDULE. ALSO, SCHEMATICS AND ILLUSTRATIONS OF MATERIAL SHOWING FLOOR PLANS, COLORS, ETC., WERE TO BE SUPPLIED, ALONG WITH ILLUSTRATED CATALOGS OF OFFERED FURNITURE ITEMS. OFFERORS WERE URGED AND EXPECTED TO VISIT THE SITE WHERE THE SERVICES WERE TO BE PERFORMED AND TO ATTEND A CONFERENCE ON BOARD THE SHIP ON MAY 22, 1969. THE SOLICITATION PROVIDED THAT MATERIALS FURNISHED WERE TO BE OF FIRST-CLASS MATERIAL AND WORKMANSHIP AND THAT ALL UPHOLSTERY WOULD BE OF FIRST-GRADE QUALITY.

THREE PROPOSALS WERE RECEIVED IN RESPONSE TO THE SOLICITATION AT THE FOLLOWING PRICES, UTILIZING APPLICABLE DISCOUNTS:

COFERS, INC. $30,163.07

VILLAGE INTERIORS, LTD. 30,329.80

THE HARMON HOUSE, INC. 38,425.00

THE THREE PROPOSALS WERE SUBMITTED TO THE SHIP FOR TECHNICAL EVALUATION WITHOUT ADVICE AS TO PRICES OR THE RELATIVE STANDING OF OFFERORS. ALTHOUGH COFERS' PROPOSAL DID ENUMERATE PRICES ON ITS ITEMIZED LIST, THE RECORD DISCLOSES THAT, IN FACT, THE SHIP WAS NOT SUPPLIED WITH THE PRICES. HOWEVER, EVEN IF PRICES WERE DISCLOSED TO THE EVALUATORS, WE SEE NO BASIS TO RAISE A QUESTION IN THAT REGARD. BY MEMORANDA DATED JUNE 13, 1969, THE SHIP RECOGNIZED THE ADEQUACY FROM THEIR STANDPOINT OF THE PROPOSALS FROM BOTH VILLAGE INTERIORS AND COFERS, BUT EXPRESSED A PREFERENCE FOR THE LATTER. IN LIGHT OF THE "KEENLY COMPETITIVE" NATURE OF THE NEGOTIATION, AND TAKING INTO ACCOUNT THE $40,000 GOVERNMENT ESTIMATE, NO ADDITIONAL PRICE NEGOTIATIONS WERE CONDUCTED, AND AWARD WAS MADE TO COFERS ON JUNE 20, 1969, AT ITS LOW OFFERED PRICE.

FIRST, IT IS MAINTAINED THAT DESPITE SEVERAL REQUESTS, YOUR CLIENT HAS NEVER BEEN PERMITTED TO SEE THE PROPOSAL OF THE SUCCESSFUL OFFEROR, ALTHOUGH A REPRESENTATIVE OF YOUR CLIENT HAS OFFERED TO PAY FOR A COPY OF SUCH PROPOSAL. SECOND, IT IS CONTENDED THAT THE PROPOSAL SUBMITTED BY COFERS WAS NONRESPONSIVE TO THE SOLICITATION, CITING ITS FAILURE TO MAKE A SCALED SKETCH; THE INABILITY OF THE CONTRACT AREA TO ACCOMMODATE MATERIAL OFFERED IN THE ARRANGEMENT PROPOSED; AND THE FAILURE TO SPECIFICALLY COMPLY WITH THE REQUIREMENT THAT MATERIAL BE OF FIRST GRADE QUALITY. THIRD, YOU CONTEND THAT YOUR CLIENT HAS BEEN RELIABLY INFORMED THAT THE FURNITURE OFFERED BY COFERS IS OF GREATLY INFERIOR QUALITY THAN THAT OFFERED BY YOUR CLIENT, FURTHER REFERRING TO YOUR CLIENT'S SUPERIOR MURALS, PANELING AND DECOR. IN LIGHT OF THE ABOVE, AS TO THE DESIRABILITY OF HIGH QUALITY, YOU CONTEND YOUR CLIENT WAS MISLED INTO UPGRADING HIS SUBMISSION, WHEN, IN FACT, THE PROCUREMENT ACTIVITY INFORMED HIM THAT "MINIMUM ACCEPTABLE QUALITY" AND PRICE DIFFERENTIAL WERE THE CRITERIA TO BE APPLIED. YOU CONCLUDE THAT THE MINISCULE PRICE DIFFERENTIAL IN FAVOR OF COFERS, IN LIGHT OF THE ALLEGED SUPERIOR QUALITY OF YOUR CLIENT'S PROPOSAL, RESULTED IN AN UNFAIR EVALUATION.

WITH RESPECT TO YOUR FIRST CONTENTION, THE ADMINISTRATIVE REPORT STATES THAT TO THE BEST OF THE BUYER'S RECOLLECTION, VILLAGE INTERIORS NEITHER ASKED TO SEE COFERS' PROPOSAL NOR OFFERED TO PAY FOR IT. WE ARE CONSTRAINED, IN THE ABSENCE OF SUBSTANTIAL EVIDENCE TO THE CONTRARY, TO ACCEPT THE STATEMENT OF THE REPORT AS TO THIS DISPUTED STATEMENT OF FACT. 40 COMP. GEN. 178, 180; 11 ID. 473; 16 ID. 1105.

WITH RESPECT TO YOUR SECOND CONTENTION, IT SHOULD BE UNDERSTOOD THAT IT IS THE PROVINCE OF ADMINISTRATIVE OFFICERS NOT ONLY TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS, BUT TO DETERMINE FACTUALLY WHETHER ARTICLES MEET THOSE SPECIFICATIONS. 17 COMP. GEN. 554, 557. WE HAVE CONSISTENTLY HELD THAT WE MUST ORDINARILY RELY ON THE JUDGMENT AND EXPERTISE OF THE PROCURING ACTIVITY IN THE FACTUAL EVALUATION OF AN OFFEROR'S RESPONSIVENESS TO SPECIFICATIONS. B-165871, MARCH 13, 1969.

AS TO THE FAILURE OF COFERS TO PRESENT A SCALE MODEL OF THE CONTRACT AREA, THE SOLICITATION DID REQUIRE SCHEMATICS SHOWING FLOOR PLAN, BUT DID NOT REQUIRE DRAWINGS TO SCALE. IN LIGHT OF THE GENERAL NATURE OF THE SOLICITATION, THE SKETCHES SUPPLIED WITH THE REQUEST FOR PROPOSALS WERE NOT DRAWN TO SCALE. AS THE NAVY REPORT STATES,"THEY WERE FURNISHED MERELY TO GIVE A BROAD IDEA OF THE REQUIREMENT AND GENERAL ARRANGEMENT, AND REFERENCES TO THE SKETCHES IN THE SOLICITATION SUBSTANTIATE THIS FACT.'

AS TO THE ALLEGED INABILITY OF THE CONTRACT AREA TO ACCOMMODATE THE FURNISHINGS CONTEMPLATED BY COFERS' PROPOSAL, THE REPORT INDICATES THAT ITS PROPOSAL ARRANGEMENTS COULD BE ACCOMMODATED IN AREAS TO BE DECORATED.

GENERALLY, AS TO THE CONTENTION OF THE INFERIOR QUALITY OF THE SELECTED OFFEROR'S PROPOSAL, THE REPORT STATES, IN PERTINENT PART, AS FOLLOWS: "* * * SECTION 2.9 OF THE SOLICITATION * * * CITES THE STANDARD, -TO BE OF FIRST-CLASS MATERIALS AND WORKMANSHIP.- QUITE NATURALLY, HIS CLIENT, AN INTERIOR DESIGNER, FEELS STRONGLY ABOUT THE SUPERIORITY OF WHAT HE WOULD FURNISH AND WHAT OTHERS PROPOSED TO FURNISH. IT WOULD APPEAR, HOWEVER, THAT THIS IS NOTHING MORE THAN AN OPINION. THERE IS EVERY REASON TO BELIEVE THAT FURNISHINGS AND WORKMANSHIP FURNISHED BY COFERS WILL BE EQUAL IN ALL QUALITY RESPECTS TO THAT PROPOSED BY VILLAGE INTERIORS, AND WILL BE OF FIRST-CLASS MATERIAL AND WORKMANSHIP. * * *

* * * * * * * "* * * PERSONNEL AT COFERS, INC., ARE CONSIDERED EQUALLY TALENTED IN INTERIOR DESIGN AS THOSE OF VILLAGE INTERIORS, LTD. THIS WAS ESTABLISHED BY THEIR SEPARATE TECHNICAL PRESENTATIONS WITH THEIR PROPOSALS. * * *"

THE RECORD INDICATES THAT THE ABOVE STATEMENTS WERE BASED OR SUPPORTED IN FACT BY THE RECOMMENDATION OF THE AMERICA. IN MAKING THEIR RECOMMENDATION, THE EVALUATORS STATED: "1. SUBJECT PROPOSALS HAVE BEEN EVALUATED UNDER THE CRITERIA OF QUALITY, DURABILITY, AND AESTHETICS. ALTHOUGH THE PROPOSALS RECEIVED FROM COFERS AND VILLAGE INTERIORS ARE BOTH ADEQUATE, THE COFERS PROPOSAL IS PREFERABLE FROM A TECHNICAL STANDPOINT.'"1. AMERICA HAS EVALUATED ALL PROPOSALS RECEIVED UNDER SUBJECT REQUEST. ALTHOUGH THE PROPOSALS MADE BY COFERS AND BY VILLAGE INTERIORS ARE BOTH ADEQUATE, AMERICA PREFERS THE COFERS OFFERING AS REPORTED IN REFERENCE (A). AMERICA ESPECIALLY PREFERS THE WARDROOM II PORTION OF THE COFERS PROPOSAL SINCE IT PROVIDES THE BEST THEME CONTINUITY BETWEEN ADJACENT WARDROOM SPACES. AT THE SAME TIME IT APPEARS TO MEET THE SHIP'S OBJECTIVE OF OBTAINING A NOTICEABLE HABITABILITY IMPROVEMENT IN WARDROOM II AT A RELATIVELY INEXPENSIVE PRICE.'

IT IS NOT THE FUNCTION OF OUR OFFICE TO EVALUATE PROPOSALS OR TO SUBSTITUTE OUR JUDGMENT FOR THAT OF CONTRACTING OFFICIALS BY MAKING AN INDEPENDENT FACTUAL DETERMINATION IN EACH CASE. IN THE ABSENCE OF A CLEAR SHOWING OF UNREASONABLENESS, FAVORITISM, OR A VIOLATION OF PROCUREMENT STATUTES, OR REGULATIONS, SUCH DETERMINATIONS AS TO WHICH PROPOSAL IS TECHNICALLY SUPERIOR WILL NOT BE QUESTIONED BY OUR OFFICE. B-167259, SEPTEMBER 12, 1969; B-161480, JULY 5, 1967; B-166052, JULY 11, 1969.

IT SHOULD BE NOTED THAT THE SMALL DIFFERENCE IN PRICES WAS A FACTOR OF SOME RELEVANCE, BUT NOT THE SOLE CONSIDERATION IN MAKING THE AWARD. NEGOTIATED PROCUREMENTS, ALL FACTORS DEEMED ESSENTIAL TO THE ACCOMPLISHMENT OF A PROCUREMENT ARE TAKEN INTO CONSIDERATION IN EFFECTING AWARDS OF CONTRACTS. 40 COMP. GEN. 508. PARAGRAPH 3-101 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES THAT IN PROCUREMENTS BY NEGOTIATION AWARD SHALL BE MADE TO THE BEST ADVANTAGE OF THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.