B-167417-2, SEP 12, 1969

B-167417-2, SEP 12, 1969

BID PROTEST - SOLICITATION SPECIFICATIONS DECISION TO SECRETARY OF LABOR SUGGESTING THAT IN FUTURE SOLICITATIONS FOR COMPUTER SERVICES IF ONE SITE IS REQUIRED THAT THE SOLICITATION SPELL OUT THAT IF MORE THAN ONE SITE IS CONTEMPLATED OR THAT SUBCONTRACTING IS CONTEMPLATED SUCH PROPOSALS WILL BE REJECTED.

TO MR. SECRETARY:

ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO ANALYSIS AND PROGRAMMING CORPORATION CONCERNING ITS PROTEST AGAINST THE AWARD OF A CONTRACT TO THE MERLE THOMAS CORPORATION UNDER REQUEST FOR PROPOSALS L/A 69-13.

THE REPORT DATED JULY 30, 1969, FROM THE ASSISTANT SECRETARY FOR ADMINISTRATION STATES THAT THE PURPOSE OF THE INSTANT PROCUREMENT WAS TO CONSOLIDATE THE PREVIOUSLY FRAGMENTED SUPPORTING SERVICES INTO ONE CONTRACT AND, SPECIFICALLY, TO PROVIDE FOR A COMPUTER CONFIGURATION TO BE LOCATED AT ONE SITE THEREBY ELIMINATING THE ADMINISTRATIVE BURDEN OF COORDINATING THE WORK PERFORMED AT MULTIPLE SITES.

AS OUR DECISION NOTES ANALYSIS AND PROGRAMMING CORPORATION'S PROPOSAL WAS REJECTED ON THE BASIS, IN PART, THAT THE EQUIPMENT OFFERED WAS LOCATED AT TWO DIFFERENT SITES AND IT CALLED FOR SUBCONTRACTING. IN OUR OPINION, THE TERMS OF THE REQUEST FOR PROPOSALS DID NOT PROHIBIT DIFFERENT SITE LOCATIONS OR SUBCONTRACTING AND AT BEST THE REQUEST FOR PROPOSALS WAS AMBIGUOUS ON THIS POINT. MOREOVER, THE EVALUATION OF PROPOSALS IN THE INSTANT CASE RAISES CONSIDERABLE DOUBT AS TO THE DEPARTMENT'S ACTUAL NEED FOR ONE SITE FOR THE COMPUTER CONFIGURATIONS IN VIEW OF THE FACT THAT THE PROPOSAL OF SERVICE BUREAU CORPORATION WAS DETERMINED TO BE RESPONSIVE EVEN THOUGH IT PROPOSED TWO DIFFERENT LOCATIONS FOR ITS 360/30 AND 360/40 COMPUTER CONFIGURATIONS.

IT IS SUGGESTED THAT FUTURE SOLICITATIONS FOR THESE SERVICES EMBODY ADEQUATE AND SPECIFIC NOTICE THAT PROPOSALS OFFERING MORE THAN ONE SITE FOR COMPUTER CONFIGURATIONS OR WHICH CONTEMPLATE SUBCONTRACTING, IF SUCH RESTRICTIONS IN FACT ARE CONSIDERED NECESSARY, WILL BE REJECTED.

YOUR ATTENTION IS ALSO INVITED TO THAT PORTION OF OUR DECISION IN WHICH WE INDICATE THAT THE PRIMARY CONSIDERATION IN NEGOTIATED PROCUREMENTS IS NOT THE RESPONSIVENESS OF PROPOSALS BUT DISCUSSIONS (I.E. NEGOTIATIONS) WITH ALL OFFERORS WITHIN A COMPETITIVE RANGE. SEE PARAGRAPH 1-3.805-1(A) OF THE FEDERAL PROCUREMENT REGULATIONS. IN THIS CONNECTION, IT SHOULD BE NOTED THAT WHEN A DETERMINATION IS MADE TO CONDUCT NEGOTIATIONS WITH ALL OFFERORS WITHIN A COMPETITIVE RANGE, NONRESPONSIVE PROPOSALS ARE NOT AUTOMATICALLY EXCLUDED FROM CONSIDERATION BUT MAY BE CLARIFIED OR SUPPLEMENTED TO BRING THEM WITHIN THE TERMS OF THE SPECIFICATIONS IF THEY ARE DETERMINED TO BE WITHIN THE COMPETITIVE RANGE FROM THE STANDPOINT OF BOTH PRICE AND TECHNICAL CONSIDERATIONS. MOREOVER, IN THE CONDUCT OF NEGOTIATIONS ALL OFFERORS WITHIN A COMPETITIVE RANGE SHOULD BE ADVISED: (1) THAT NEGOTIATIONS ARE BEING CONDUCTED; (2) THAT OFFERORS ARE BEING ASKED FOR THEIR "BEST AND FINAL" OFFER, NOT MERELY TO CONFIRM OR RECONFIRM PRIOR OFFERS, AND FINALLY (3) THAT ANY REVISION MUST BE SUBMITTED BY THE DATE SPECIFIED. SEE B-163882, FEBRUARY 13, 1969, COPY ENCLOSED. THE RECORD SUBMITTED TO US BY YOUR DEPARTMENT INDICATES THAT THE ABOVE CONSIDERATIONS AND PROCEDURES WERE NOT GIVEN ADEQUATE RECOGNITION IN THE INSTANT PROCUREMENT AND WE BRING THIS MATTER TO YOUR ATTENTION IN THE HOPE THAT APPROPRIATE STEPS WILL BE TAKEN TO PRECLUDE A RECURRENCE IN FUTURE CASES.

THE EXHIBITS TO THE REPORT OF THE ASSISTANT SECRETARY FOR ADMINISTRATION ARE RETURNED.