B-167364, SEP. 29, 1969

B-167364, SEP. 29, 1969

BID PROTEST - COMPETITION DECISION DENYING PROTEST OF SCIENTIFIC MARKETING ASSOCIATES, ONLY TIMELY OFFEROR, AGAINST CANCELLATION OF NEGOTIATED SOLICITATION FOR FILM FOR NAVY AND THAT RESOLICITATION SHOULD NOT BE PERMITTED. WHERE ONLY ONE TIMELY OFFER WAS RECEIVED AND IT WAS DETERMINED THAT PRICE PROPOSED WAS UNREASONABLE, TECHNICAL QUALIFICATIONS WERE QUESTIONABLE AND POSSIBILITY OF OBTAINING COMPETITION WAS EVIDENT CANCELLATION WAS JUSTIFIED SINCE RECORD SUPPORTS DETERMINATION.

TO SCIENTIFIC MARKETING ASSOCIATES:

REFERENCE IS MADE TO THE LETTERS OF JUNE 25, 1969, AND AUGUST 18, 1969, PROTESTING AGAINST THE CANCELLATION OF NEGOTIATED SOLICITATION NO. N00600- 69-R-5267, ISSUED ON MAY 2, 1969, BY THE UNITED STATES NAVY PURCHASING OFFICE (NPO), WASHINGTON NAVY YARD, WASHINGTON, D.C.THE NEGOTIATING AUTHORITY FOR THIS PROCUREMENT WAS 10 U.S.C. 2304 (A) (10) AND ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-210.2 (VI).

THE PROCUREMENT WAS FOR PREPARATION OF AN UNCLASSIFIED SCRIPT IDENTIFIED AS "THIS YEAR 1969" (MN 10853), WITH AN ESTIMATED SCREEN RUNNING TIME OF 28-1/2 MINUTES. ITEM NO. 1 WAS FOR A TREATMENT OUTLINE FOR THE FILM. ITEM NO. 2 WAS FOR A PRELIMINARY SCRIPT (WITH ONE BLACK AND WHITE STORYBOARD FOR ART SCENES); MASTER SCRIPT (WITH ONE COLOR AND NINE BLACK AND WHITE STORYBOARDS); AND PRODUCTION BREAKDOWNS FOR (MN 10853). SECTION B - DESCRIPTION OR SPECIFICATIONS PROVIDED AS OLLOWS:

"THE PROPOSAL FOR SCRIPTS TO BE FURNISHED HEREUNDER SHALL BE SUBMITTED ON A FIXED PRICE BASIS, BASED ON THE ATTACHED SCRIPT SPECIFICATIONS. THE FOLLOWING INFORMATION AND REQUIREMENTS ARE ALSO APPLICABLE: "APPLICABLE TO ITEM 1:

"THE TREATMENT OUTLINE CONSISTS OF RESEARCH, WRITING AND TYPING. ADDITION, THE COST OF TRANSPORTATION AND PER DIEM RELATED TO ALL RESEARCH LOCATIONS AND SCRIPT CONFERENCES SHOULD BE INCLUDED IN THIS ITEM. LISTED BELOW ARE THE SCRIPT CONFERENCE AND RESEARCH LOCATIONS AND THE APPROXIMATE NUMBER OF DAYS REQUIRED AT EACH LOCATION.

"LOCATION TRIPS DAYS

---------- ----- ---- 1. WASHINGTON, D.C.

3 7 DAYS (TOTAL) 2. NORFOLK, VA. 1 7 DAYS (TOTAL) 3. PEARL HARBOR, HAWAII 1 7 DAYS (TOTAL) "APPLICABLE TO ITEM 2:

"THE PRELIMINARY AND MASTER SCRIPTS SHALL INCLUDE WRITING, STORYBOARDS, PRODUCTION BREAKDOWNS, TYPING, PHOTOSTATS AND ASSEMBLY.' ALSO ATTACHED TO THE SOLICITATION WERE THE SCRIPT SPECIFICATIONS FOR "THIS YEAR 1969".

UNDER THE REQUIRED DELIVERY SCHEDULE ON PAGE 8 OF THE SOLICITATION, DELIVERY OF ALL WORK UNDER ITEM NO. 1 WAS REQUIRED WITHIN 30 DAYS AFTER DATE OF CONTRACT AND ALL WORK UNDER ITEM NO. 2 WAS REQUIRED WITHIN 30 DAYS OF APPROVAL OF ITEM NO. 1.

THE FACTUAL BACKGROUND REGARDING THIS PROCUREMENT IS STATED TO BE AS FOLLOWS IN THE CONTRACTING OFFICER'S REPORT:

"1. NO TIMELY PROPOSALS WERE RECEIVED IN RESPONSE TO (RFP - 5267) FROM THE THREE POTENTIAL SOURCES SOLICITED. ONE LATE PROPOSAL FROM ONE OF THESE SOURCES WAS RECEIVED FIVE DAYS AFTER THE DUE DATE. AN OFFER OF $9,173.70 WAS RECEIVED FROM SCIENTIFIC MARKETING ASSOCIATES (SMA) ON TIME. * * *

"2. * * * A REPRESENTATIVE OF SMA VISITED THIS OFFICE, AT OUR REQUEST, ON 27 MAY 1969, AND BOTH THIS OFFICE AND THE NAVAL AIR SYSTEMS COMMAND (NASC) ON 7 JUNE 1969, AND WERE NOT ABLE TO PROVIDE ANY CONVINCING INFORMATION AS TO THEIR CAPABILITIES FOR FURNISHING A SCRIPT FOR A NEWS TYPE FILM. THIS FIRM APPEARS TO BE ENGAGED PRIMARILY IN TECHNICAL (HARDWARE) WRITING RATHER THAN IN THE NEWS REPORTING CATEGORY NEEDED FOR THIS REQUIREMENT. ON 27 MAY 1969 MR. POTOCNAK (SMA) VISITED THIS OFFICE AND BROUGHT IN TWO PAGES OF ONE AND THREE PAGES OF ANOTHER SCRIPT EXCERPT WHICH THEY CLAIMED TO HAVE WRITTEN. NASC PERSONNEL STATED THAT THEY WERE EXAMPLES OF - HARDWARE TYPE- PROJECTS WHICH GAVE NO INDICATION THAT THEY COULD WRITE FOR A NEWSREEL TYPE PROJECT. MR. POTOCNAK STATED THAT HE HAD A PERSON IN HIS EMPLOY WHO WAS QUALIFIED TO DO A NEWS TYPE SCRIPT. HE WAS REQUESTED TO PROVIDE A RESUME ON THIS INDIVIDUAL. HE WAS ALSO TOLD THAT HIS PRICE APPEARED TO BE TOO HIGH. * * *

"3. * * * SMA WAS AGAIN REQUESTED TO PROVIDE THIS OFFICE WITH SCRIPT AND FILM PRINT SAMPLES TO SUBSTANTIATE THEIR CAPABILITY TO PROVIDE THIS REQUIREMENT AND TO MAKE ANY DESIRED PRICE REVISIONS. (SMA HAD PROMISED TO PROVIDE SUCH INFORMATION ON 3 JUNE 1969, BUT HAD NOT DONE SO.)

"4. * * * MR. POTOCNAK AND MR. GARGANTY (SIC) OF SMA VISITED THIS OFFICE AND NASC ON 5 JUNE 1969. THEY DID NOT FURNISH A RESUME OF THEIR SCRIPT WRITER AND FURTHER STATED THAT THE WRITER REFERRED TO UNDER PARAGRAPH 2 WAS NO LONGER AVAILABLE FOR THIS PROJECT. THEY WERE ASKED TO PROVIDE A COPY OF SOME COMPLETE SCRIPTS WHICH THEY HAD WRITTEN. THEY STATED THAT THEY DID NOT HAVE ACCESS TO ANY AS THE SCRIPTS WERE THE PROPERTY OF THE CUSTOMER. IT WAS SUGGESTED THAT THE NAME OF A CUSTOMER BE FURNISHED AND THAT THIS OFFICE WOULD TACTFULLY REQUEST TO SEE A FILM BASED ON SCRIPTS THEY HAD WRITTEN. SMA FAILED TO FURNISH THE NAME OF A PREVIOUS CUSTOMER. SMA AGAIN WAS TOLD THAT THE PRICE PROPOSED WAS TOO HIGH. AFTER THIS MEETING, SMA REDUCED THEIR PRICE BY $1,250.00 * * * AND STATED THAT THEY WOULD NOT SPEND ANY MORE TIME ON TECHNICAL DISCUSSION AND HOPED THAT THE INFORMATION PREVIOUSLY PROVIDED REGARDING WORK SAMPLES WAS SUFFICIENT.

"5. * * * NASC STATED THAT SMA'S PROPOSAL WAS TECHNICALLY UNACCEPTABLE FOR THE FOLLOWING REASONS:

"A. SMA FAILED TO SUBMIT A SCRIPT ADEQUATE TO ILLUSTRATE THEIR CAPABILITY OF FURNISHING A NEWS TYPE SCRIPT.

"B. SMA FAILED TO FURNISH A RESUME OF A NEWS TYPE SCRIPT WRITER.

"C. SMA REPRESENTS A HIGH PRICED UNFAVORABLE RISK TO THE NAVY.

"6. THE ORIGINAL SOLICITATION WAS CANCELLED ON 20 JUNE 1969 FOR THE REASON THAT IT WAS CLEARLY IN THE BEST INTERESTS OF THE GOVERNMENT, IN THAT THE PRICE PROPOSED WAS UNREASONABLE, THE TECHNICAL QUALIFICATIONS OF THE OFFEROR WERE QUESTIONABLE, AND THAT IT WAS NOT PROPER FOR THE GOVERNMENT TO CONTINUE THE PROCUREMENT WITH ONE DOUBTFUL SOURCE WHEN THERE WAS A POSSIBILITY OF OBTAINING COMPETITION FROM KNOWN QUALIFIED SOURCES.

"7. ON 20 JUNE 1969, MR. GARGANTY (SMA) TELEPHONED MR. MACATEE (NPO) COMPLAINING ABOUT -UNFAIR TREATMENT-. AFTER DISCUSSION WITH MRS. ANDERSON, THE ASSISTANT HEAD OF THE PURCHASE DIVISION (NPO), MR. MACATEE WAS INSTRUCTED TO INFORM MR. GARGANTY THAT THE PREVIOUS SOLICITATION WAS BEING CANCELLED AND THAT A NEW SOLICITATION WAS BEING FORWARDED TO HIM * * *. THE DUE DATE WAS EXTENDED FROM 25 JUNE 1969 TO 3 JULY 1969.'

ON JUNE 18, 1969, NPO ISSUED NEGOTIATED SOLICITATION NO. N00600-69-R 5464, FOR PREPARATION OF AN UNCLASSIFIED SCRIPT FOR "THIS YEAR 1969" (MN- 10853). THE CANCELLED SOLICITATION AND THE RESOLICITATION HAD THE SAME NEGOTIATION AUTHORITY AND SCRIPT SPECIFICATIONS. AMENDMENT NO. 0001 TO THE RESOLICITATION MADE CERTAIN CHANGES AND CLARIFICATIONS WITH REGARD TO THE SPECIFIC INFORMATION CALLED FOR UNDER THE "SCRIPT INFORMATION TO BE FURNISHED BY OFFEROR" PROVISION. THE REQUIRED DELIVERY SCHEDULE IN THE RESOLICITATION WAS THAT DELIVERY OF ALL WORK UNDER ITEM NO. 1 WAS REQUIRED WITHIN 40 DAYS AFTER DATE OF CONTRACT AND ALL WORK UNDER ITEM NO. 2 WAS REQUIRED WITHIN 30 DAYS AFTER APPROVAL OF ITEM NO. 1.

THREE PROPOSALS WERE RECEIVED PURSUANT TO THE RESOLICITATION. YOUR CONCERN DID NOT SUBMIT AN OFFER TO THE RESOLICITATION. WE HAVE BEEN ADVISED THAT TWO OF THE THREE OFFERORS ON THE RESOLICITATION DID NOT RECEIVE THE FIRST SOLICITATION AND THAT WHILE THE THIRD OFFEROR DID SUBMIT A PROPOSAL TO THE FIRST SOLICITATION, IT WAS NOT CONSIDERED SINCE IT WAS LATE.

BASICALLY, AS INDICATED IN THE CONTRACTING OFFICER'S REPORT, IT IS YOUR CONTENTION THAT YOUR FIRM RECEIVED UNFAIR TREATMENT IN THE CANCELLATION OF THE INITIAL SOLICITATION TO WHICH YOUR COMPANY WAS THE ONLY OFFEROR. YOUR LETTER OF AUGUST 18, 1969, YOU QUESTION THE NAVY'S ESTIMATE FOR THIS PROCUREMENT AND ALSO WHETHER THE PRICES IN THE PROPOSALS RECEIVED PURSUANT TO THE RESOLICITATION WERE REASONABLE. YOU HAVE FURNISHED YOUR ESTIMATED COST FIGURES WHICH YOU URGE ARRIVE AT A CONSERVATIVE ESTIMATE OF THE TOTAL COST FOR THIS PROCUREMENT. IT IS YOUR CONTENTION THAT THE RESOLICITATION SHOULD BE CANCELLED AND THAT AWARD BE MADE TO YOUR CONCERN UNDER THE INITIAL SOLICITATION.

NAVY'S SUPPLEMENTAL REPORT ON THE CONTENTIONS IN YOUR LETTER OF AUGUST 18, 1969, INCLUDES A LETTER DATED SEPTEMBER 2, 1969, FROM THE COMMANDER, NAVAL AIR SYSTEMS COMMAND WHICH STATES AS FOLLOWS:

"SCIENTIFIC MARKETING ASSOCIATES ARE USING THE DELIVERY TIME FRAMES OF 40 DAYS FOR DELIVERY OF TREATMENT AND 30 DAYS FOR DELIVERY OF THE MASTER SCRIPT AS FULL WRITING TIME FRAMES. NINE (9) WEEKS OF RESEARCH AND WRITING ON THIS PROJECT WOULD BE EXCESSIVE. THREE (3) WEEKS OF RESEARCH AND TWO (2) WEEKS TOTAL WRITING SHOULD BE ADEQUATE TO COMPLETE THE PROJECT. A NINE (9) WEEKS DELIVERY TIME IS ALLOWED ONLY TO MAKE ALLOWANCE FOR REVIEW AND APPROVAL TIME BY THE NAVY, MAILING TIME AND THE CORRECTION OF TECHNICAL ERRORS.'

OUR OFFICE HAS EXAMINED THE ITEMIZED COST BREAKDOWNS IN THE THREE PROPOSALS RECEIVED PURSUANT TO THE RESOLICITATION AND WE HAVE FOUND NOTHING TO INDICATE THAT THE ESTIMATED COSTS IN THESE PROPOSALS WERE SUBMITTED IN OTHER THAN GOOD FAITH OR THAT THESE COSTS ARE UNREASONABLY LOW AS URGED BY YOU.

WITH REGARD TO POINT NO. 6 IN YOUR LETTER OF JUNE 25, 1969, AMENDMENT NO. 0001 TO THE RESOLICITATION EXTENDED THE CLOSING DATE FOR SUBMISSION OF PROPOSALS TO JULY 3, 1969. CONSEQUENTLY, YOUR CONTENTION THAT YOU RECEIVED THE RESOLICITATION ON THE SAME DAY THAT IT WAS DUE HAS NOT BEEN SUBSTANTIATED.

PARAGRAPH 10 (B) OF THE "SOLICITATION INSTRUCTIONS AND CONDITIONS" OF THE CANCELLED SOLICITATION PROVIDES THAT THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY OR ALL OFFERS. IN B-159291, AUGUST 2, 1966, WHICH ALSO INVOLVED A NEGOTIATED PROCUREMENT, IT WAS STATED AS FOLLOWS:

"* * * THE AUTHORITY TO REJECT ALL BIDS (OFFERS) IS EXTREMELY BROAD, INVOLVING PRIMARILY A MATTER OF ADMINISTRATIVE JUDGMENT, AND WE WILL NOT UNDERTAKE TO QUESTION ITS EXERCISE HERE IN THE ABSENCE OF A CLEAR SHOWING OF ABUSE OF DISCRETION. * * *"

THE ABOVE RULE WOULD BE EQUALLY APPLICABLE TO THIS CASE. PURSUANT TO OUR REVIEW OF THE RECORD, AS SET FORTH ABOVE, WE DO NOT FIND THAT NPO ABUSED ITS ADMINISTRATIVE DISCRETION IN DECIDING THAT SOLICITATION NO. N00600-69- R-5267, SHOULD BE CANCELLED.