Rejection of Proposal as Outside the Competitive Range

B-176077(5): Jan 26, 1973

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Southwest Bio-Clinical Laboratories protests the rejection of their proposal by Department of Defense for urinalysis screening in connection with the drug abuse program.

With respect to the protestor's contention regarding price, since the Army determined that the protestor's proposal was not within the competitive range because of technical deficiencies, it was not required to further consider their proposal even though their price was lower than that of other offerors.

For the foregoing reasons, the protest is denied.

B-176077(5), JAN 26, 1973

BID PROTEST - EVALUATION - COMPETITIVE RANGE DECISION DENYING THE PROTEST OF SOUTHWEST BIO-CLINICAL LABORATORIES AGAINST REJECTION OF ITS PROPOSAL UNDER AN RFP ISSUED BY THE U.S. ARMY MEDICAL RESEARCH AND DEVELOPMENT COMMAND, WASHINGTON, D.C., FOR LABORATORY URINALYSIS SCREENING. THE DETERMINATION OF COMPETITIVE RANGE, PARTICULARLY WITH RESPECT TO TECHNICAL CONSIDERATIONS, IS A MATTER OF ADMINISTRATIVE DISCRETION WHICH WILL NOT BE DISTURBED BY GAO IN THE ABSENCE OF A CLEAR SHOWING THAT THE DETERMINATION WAS ARBITRARY OR CAPRICIOUS. 48 COMP. GEN. 314 (1968). MOREOVER, A PROPOSAL DETERMINED NOT TO BE WITHIN THE COMPETITIVE RANGE BECAUSE OF TECHNICAL DEFICIENCES NEED NOT BE CONSIDERED FURTHER EVEN IF THE PRICE IS LOWER THAN THAT OF THE OTHER OFFERORS. B-174870, JULY 3, 1972.

TO SOUTHWEST BIO-CLINICAL LABORATORIES:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 26, 1972, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST REJECTION OF YOUR PROPOSAL SUBMITTED IN RESPONSE TO REQUEST FOR PROPOSALS (RFP) DADA17-72 R-0602, ISSUED BY THE UNITED STATES ARMY MEDICAL RESEARCH AND DEVELOPMENT COMMAND, WASHINGTON, D.C.

THE SOLICITATION WAS FOR LABORATORY URINALYSIS SCREENING IN CONNECTION WITH THE DEPARTMENT OF DEFENSE DRUG ABUSE PROGRAM. SECTION D OF THE RFP PROVIDED THAT PROPOSALS WOULD BE INITIALLY EVALUATED ON THE BASIS OF SPECIMEN HANDLING AND PROCESSING, METHODOLOGY, FACILITIES, AND PERSONNEL, WITH A SUBSEQUENT EVALUATION OF PRICE AND ACTUAL LABORATORY PROCESSING OF TEST SAMPLES. THE RFP FURTHER PROVIDED THAT THE QUALITY CONTROL TEST SAMPLES WOULD BE FURNISHED ONLY TO THOSE OFFERORS "DEEMED MOST RESPONSIVE" IN THE PRICE AND INITIAL TECHNICAL EVALUATIONS.

UPON RECEIPT OF PROPOSALS, THE 27 OFFERORS WERE NUMERICALLY RATED IN ACCORDANCE WITH THE CRITERIA SET FORTH IN SECTION D. THE 15 HIGHEST RATED PROPOSALS WERE THEN FURTHER EVALUATED TO DETERMINE IF THEY CONTAINED ANY SUBSTANTIAL TECHNICAL DEFICIENCIES IN THE AREAS OUTLINED IN SECTION D. YOUR PROPOSAL WAS ONE OF A NUMBER FOUND BY THE EVALUATION BOARD TO BE LACKING IN A CRUCIAL AREA AND WAS REJECTED AS NOT WITHIN THE COMPETITIVE RANGE.

THE ARMY REPORTS THAT YOUR PROPOSAL WAS "IRREPARABLY DEFICIENT" IN THE AREA OF QUALITY CONTROL. YOU TAKE EXCEPTION TO THIS AND CLAIM THAT THE EVALUATION PROCESS WAS DEFECTIVE BECAUSE QUALITY CONTROL SAMPLES WERE NOT SUBMITTED TO YOUR LABORATORY TO ENABLE YOU TO ESTABLISH YOUR ACCURACY. YOU ALSO CLAIM YOUR PRICE WAS NOT PROPERLY CONSIDERED SINCE THE CONTRACTS THAT WERE AWARDED WERE AT PRICES HIGHER THAN YOUR PROPOSED PRICE.

THE RFP PROVIDED THAT TEST SAMPLES WOULD BE FURNISHED ONLY TO THOSE LABORATORIES THAT WERE CONSIDERED TO BE WITHIN THE COMPETITIVE RANGE AFTER THE INITIAL PRICE AND TECHNICAL EVALUATIONS WERE COMPLETED.

THE EVALUATION BOARD DETERMINED THAT YOU WERE NOT WITHIN THE COMPETITIVE RANGE BECAUSE YOUR PROPOSAL INDICATED A "FAILURE TO COMPREHEND THE IMPORTANCE OF INTERNAL QUALITY CONTROL" IN THE DRUG SCREENING PROGRAM. SPECIFICALLY, THE BOARD REGARDED AS WEAK YOUR PROPOSED NUMBER OF QUALITY CONTROL SAMPLES PER NUMBER OF SPECIMENS PROCESSED AND THE USE OF ONLY AN ON-LINE SUPERVISOR TO OPERATE THE QUALITY CONTROL PROGRAM, AND FOUND YOUR PROPOSAL TO BE LACKING IN CERTAIN INFORMATION RELATED TO THE QUALITY CONTROL PROGRAM. THE BOARD DETERMINED THAT YOUR PROGRAM WAS INADEQUATE "WHEN COMPARED TO THE PROPOSALS ULTIMATELY DETERMINED TO BE WITHIN THE COMPETITIVE RANGE" AND THAT THE INADEQUACY WAS A SUBSTANTIAL ONE NOT READILY SUSCEPTIBLE TO BEING CORRECTED.

WE HAVE HELD THAT THE DETERMINATION OF COMPETITIVE RANGE, PARTICULARLY WITH RESPECT TO TECHNICAL CONSIDERATIONS, IS A MATTER OF ADMINISTRATIVE DISCRETION WHICH WE WILL NOT DISTURB ABSENT A CLEAR SHOWING THAT THE DETERMINATION WAS ARBITRARY OR CAPRICIOUS. 48 COMP. GEN. 314 (1968). THE RECORD BEFORE US PROVIDES NO BASIS FOR CONCLUDING THAT THE ARMY ACTED ARBITRARILY IN VIEWING YOUR QUALITY CONTROL PROGRAM AS A BASIC WEAKNESS OF YOUR PROPOSAL. ACCORDINGLY, UNDER THE TERMS OF THE SOLICITATION, THE ARMY WAS NOT REQUIRED TO CONDUCT SAMPLE TESTING AT YOUR LABORATORY.

WITH RESPECT TO YOUR CONTENTION REGARDING PRICE, SINCE THE ARMY DETERMINED THAT YOUR PROPOSAL WAS NOT WITHIN THE COMPETITIVE RANGE BECAUSE OF TECHNICAL DEFICIENCIES, IT WAS NOT REQUIRED TO FURTHER CONSIDER YOUR PROPOSAL EVEN THOUGH YOUR PRICE WAS LOWER THAN THAT OF OTHER OFFERORS. 174870, JULY 3, 1972; B-171581, APRIL 8, 1971.

FOR THE FOREGOING REASONS, YOUR PROTEST IS DENIED.