B-170189, DEC. 1, 1970

B-170189, DEC. 1, 1970

BID PROTEST - CANCELLATION - AWARD ON SOLE SOURCE BASIS DENIAL OF PROTEST BY BIOMETRIC ANALYSIS GROUP, INC., AGAINST THE CANCELLATION OF RFP ISSUED BY THE CONTRACT AWARDS BRANCH, LOGISTICS SERVICE, FAA, AND AWARD OF CONTRACT TO DEVELOP AN ELECTROCARDIOGRAM INFORMATION PROCESSING SYSTEM TO COMMUNICATION SERVICES CORP., ON A SOLE- SOURCE BASIS. THE DETERMINATION, ON DISCOVERING THAT THE TECHNICAL INFORMATION OF THE PROPOSAL WAS COPIED ALMOST VERBATUM FROM AN UNSOLICITED PROPOSAL FROM COMMUNICATION SERVICES, TO CANCEL THE RFP ON THE BASIS THAT THE INFORMATION WAS INAPPROPRIATELY INCLUDED, AND TO AWARD THE CONTRACT TO COMMUNICATION SERVICES AFTER CANCELLATION BECAUSE A DELAY OF AT LEAST SIX MONTHS WOULD BE INVOLVED IF THE FAA DEVELOPED ITS OWN TECHNICAL DESCRIPTION AND RESOLICITED PROPOSALS, WILL NOT BE DISTURBED, UNDER THE CIRCUMSTANCES, EVEN THOUGH THERE WAS NOTHING IN THE UNSOLICITED PROPOSAL TO INDICATE THAT IT WAS PROPRIETARY OR RESTRICTED. HOWEVER, THE MATTER HAS BEEN BROUGHT TO THE ATTENTION OF THE SECRETARY OF TRANSPORTATION ADVISING THAT ACTION SHOULD BE TAKEN TO AVOID SIMILAR MISHANDLING.

TO BIOMETRIC ANALYSIS GROUP, INCORPORATED:

THIS IS IN REFERENCE TO YOUR LETTERS DATED JUNE 25 AND OCTOBER 1, 1970, PROTESTING AGAINST THE CANCELLATION OF REQUEST FOR PROPOSALS (RFP) NO. WA5R-0-0576, ISSUED ON APRIL 14, 1970, BY THE CONTRACT AWARDS BRANCH, LOGISTICS SERVICE, FEDERAL AVIATION ADMINISTRATION (FAA).

ITEM NO. 1 WAS DESCRIBED AS FOLLOWS:

"PROVIDE ALL NECESSARY QUALIFIED PERSONNEL, FACILITIES, MATERIALS, EQUIPMENT AND SERVICES, AND DEVELOP A SYSTEM DESIGN TO PROVIDE AN ELECTROCARDIOGRAM INFORMATION PROCESSING SYSTEM FOR CLASS ONE CERTIFICATES DURING THE 1970-1980 TIME PERIOD, FOR PROCESSING, ANALYZING, AND STORING RESTING AND EXERCISE ELECTROCARDIOGRAMS RECEIVED CURRENTLY AND IN THE FUTURE IN ACCORDANCE WITH THE SCHEDULE CONTAINED HEREIN."

THE CLOSING DATE FOR RECEIPT OF PROPOSALS WAS MAY 18, 1970. AFTER OPENING AND DURING THE EVALUATION OF OFFERS, IT WAS BROUGHT TO FAA'S ATTENTION THAT THE TECHNICAL INFORMATION INCORPORATED IN THE SOLICITATION WAS COPIED ALMOST VERBATIM FROM AN UNSOLICITED PROPOSAL FROM ANOTHER CONCERN. FAA ADVISES THAT THIS UNSOLICITED PROPOSAL CONSTITUTES A CONCEPT OR APPROACH, SUPPORTED BY TECHNICAL DATA, WHICH WAS DEVELOPED AND VOLUNTARILY SUBMITTED BY A MEMBER OF INDUSTRY FOR THE SOLE USE OF FAA; THAT FAA DETERMINED THAT THE INCORPORATION OF THE CONCEPTS OF THE UNSOLICITED PROPOSAL IN THE RFP WAS INAPPROPRIATE AND THAT THEREFORE THE RFP WAS CANCELLED. BY LETTERS DATED JUNE 12, 1970, THE VARIOUS OFFERORS WERE NOTIFIED OF THE CANCELLATION OF THE RFP AND THESE LETTERS CONTAINED BASICALLY THE SAME INFORMATION AS SET FORTH IN THIS PARAGRAPH. THERE WAS NOTHING IN THE UNSOLICITED PROPOSAL TO INDICATE THAT IT WAS PROPRIETARY OR THAT ITS USE WAS RESTRICTED.

AFTER THE CANCELLATION OF THE RFP, IT WAS DETERMINED BY FAA THAT A DELAY OF AT LEAST SIX MONTHS WOULD BE INCURRED IF FAA DEVELOPED ITS OWN TECHNICAL DESCRIPTION AND RESOLICITED PROPOSALS FROM THE VARIOUS OFFERORS. FAA ADVISES THAT SUCH A DELAY WOULD HAVE BEEN UNACCEPTABLE SINCE A LARGE INCREASE IN THE WORKLOAD WAS EXPECTED AND THAT THEREFORE FAA NEGOTIATED A CONTRACT WITH COMMUNICATIONS SERVICES CORPORATION, ON THE BASIS OF THE UNSOLICITED PROPOSAL SUBMITTED BY THAT CONCERN.

IN YOUR LETTER OF OCTOBER 1, 1970, YOU STATE THAT AFTER A THOROUGH STUDY OF THE RFP YOU ARE CONVINCED THAT NOTHING CONTAINED THEREIN WAS OF A PROPRIETARY NATURE OR BEYOND THE STATE OF THE ART. YOUR LETTER OF OCTOBER 1 CONCLUDES THAT THE RESPONSE TO THE RFP INDICATES THAT SEVERAL ORGANIZATIONS HAVE THE CAPABILITY OF PERFORMING A CONTRACT FOR THE REQUIREMENTS OF THIS PROCUREMENT AND THAT THE SELECTION OF ONE CONTRACTOR WITHOUT CONSIDERATION OF OTHER PROSPECTIVE CONTRACTORS WAS CONTRARY TO THE GENERAL PROCEDURES OF GOVERNMENT CONTRACTING.

IT IS UNFORTUNATE THAT THIS PROCUREMENT WAS HANDLED IN THE MANNER AS SET FORTH ABOVE. THE CANCELLATION OF THE RFP WAS WITHIN THE DISCRETION OF THE CONTRACTING OFFICER WHICH WILL NOT BE DISTURBED BY OUR OFFICE IN THE CIRCUMSTANCES OF THIS CASE. WE ARE ENCLOSING A COPY OF A LETTER WHEREIN WE HAVE BROUGHT THIS MATTER TO THE ATTENTION OF THE SECRETARY OF TRANSPORTATION FOR APPROPRIATE ACTION.