B-177959, AUG 12, 1974

B-177959, AUG 12, 1974

1. CONTENTION THAT IRREGULARITIES INVOLVING FAILURE TO FOLLOW PROCEDURES CONTAINED IN RFP AND FPR RENDERS CONTRACT AWARD ILLEGAL HAS NO MERIT SINCE IRREGULARITIES DID NOT AFFECT THE SUBSTANCE OF THE PROCUREMENT AND NOTHING IN RECORD OR REQUEST FOR RECONSIDERATION LEADS TO CONCLUSION THAT AWARD VIOLATED LAW OR IMPLEMENTING PROCUREMENT REGULATIONS. 2. QUESTION CONCERNING SUCCESSFUL OFFEROR'S COMPLIANCE WITH SECTION 1- 1.1203-4 OF FPR RELATING TO "ABILITY TO OBTAIN" RELATES TO RESPONSIBILITY OF OFFEROR WHICH WILL NOT BE DISTURBED ABSENT A SHOWING OF FRAUD WHICH HAS NOT BEEN ALLEGED OR DEMONSTRATED. 3. FAILURE TO CONDUCT SITE VISIT OF FACILITIES OF UNSUCCESSFUL OFFEROR WAS NOT PREJUDICIAL SINCE FPR 1-1.1203-4 DOES NOT REQUIRE SITE VISIT ESPECIALLY WHEN AGENCY IS FAMILIAR WITH FACILITIES. 4. ALTHOUGH RFP CALLED FOR NUMERICAL SCORING OF PROPOSALS AND FAILURE TO SO SCORE WAS IMPROPER, NO PREJUDICE RESULTED BECAUSE EVALUATION RESULT WOULD HAVE BEEN NO DIFFERENT HAD NUMERICAL SCORING BEEN CONDUCTED. 5. AWARD OF NEGOTIATED COST-TYPE CONTRACT TO TECHNICALLY SUPERIOR OFFEROR, THOUGH AT A PRICE HIGHER THAN PROTESTER, IS WARRANTED SINCE SELECTION REPRESENTED EXERCISE OF JUDGMENT THAT SUPERIOR OFFEROR COULD PERFORM IN MANNER MORE ADVANTAGEOUS TO GOVERNMENT.

RECONSIDERATION OF NATIONAL BIOMEDICAL RESEARCH FOUNDATION PROTEST:

BY LETTER DATED NOVEMBER 21, 1973, NATIONAL BIOMEDICAL RESEARCH FOUNDATION (NBRF) REQUESTED RECONSIDERATION OF 53 COMP. GEN. 278 (1973), WHEREIN WE CONCLUDED THAT THE RECORD BEFORE US DID NOT REQUIRE OUR OFFICE TO DISTURB THE AWARD OF CONTRACT NICHD-CMS-72-3 TO JET PROPULSION LABORATORY (JPL).

NBRF QUESTIONS THE FACTUAL AND LEGAL GROUNDS OF OUR DECISION IN SEVERAL RESPECTS. EACH OF ITS CONTENTIONS WILL BE TREATED AGAINST THE BACKGROUND OF OUR DECISION OF OCTOBER 29 AND OUR LETTER OF THE SAME DATE TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE. WHEN NECESSARY FOR A COMPLETE DISCUSSION OF THE PARTICULAR ISSUES, THE FACTS SET FORTH IN THE DECISION AND LETTER WILL BE SUPPLEMENTED FROM THE RECORD PRESENTLY BEFORE OUR OFFICE.

NBRF'S FIRST CONTENTION CONCERNS THE CONCLUSION REACHED IN OUR DECISION THAT "*** CERTAIN IRREGULARITIES DID OCCUR IN THIS PROCUREMENT; HOWEVER, WE DO NOT FEEL THAT THEY WERE SUCH AS TO REQUIRE CANCELLATION. ***" NBRF ARGUES THAT THERE CAN BE NO DEGREES OF ILLEGALITY, AS EVIDENCED BY ITS STATEMENT THAT "IN MY VIEW SOMETHING IS ILLEGAL OR NOT, BUT IT CAN'T BE JUST A LITTLE BIT ILLEGAL. ***"

OUR OFFICE MAY, IN PROPER CIRCUMSTANCES, RECOMMEND CORRECTIVE ACTION SUCH AS CANCELLATION OF THE CONTRACT OR TERMINATION FOR CONVENIENCE OF THE GOVERNMENT. IN 52 COMP. GEN. 215 (1972), WE SAID:

"*** WE ARE IN AGREEMENT WITH THE POSITION OF THE COURT OF CLAIMS THAT 'THE BINDING STAMP OF NULLITY' SHOULD BE IMPOSED ONLY WHEN THE ILLEGALITY OF AN AWARD IS 'PLAIN', JOHN REINER & CO. V. UNITED STATES, 325 F.2D 438 (CT. CL. 1963), OR 'PALPABLE', WARREN BROTHERS ROADS CO. V. UNITED STATES, 355 F.2D 612, 615 (CT. CL. 1965). IN DETERMINING WHETHER AN AWARD IS PLAINLY OR PALPABLY ILLEGAL, WE BELIEVE THAT IF THE AWARD WAS MADE CONTRARY TO STATUTORY OR REGULATORY REQUIREMENTS BECAUSE OF SOME ACTION OR STATEMENT BY THE CONTRACTO (PRESTEX INC. V. UNITED STATES, 320 F.2D 367 (CT. CL. 1963)), OR IF THE CONTRACTOR WAS ON DIRECT NOTICE THAT THE PROCEDURES BEING FOLLOWED WERE VIOLATIVE OF SUCH REQUIREMENTS (SCHOENBROD V. UNITED STATES, 410 F.2D 400 (CT. CL. 1969)), THEN THE AWARD MAY BE CANCELED WITHOUT LIABILITY TO THE GOVERNMENT EXCEPT TO THE EXTENT RECOVERY MAY BE HAD ON THE BASIS OF QUANTUM MERIUT. ON THE OTHER HAND, IF THE CONTRACTOR DID NOT CONTRIBUTE TO THE MISTAKE RESULTING IN THE AWARD AND WAS NOT ON DIRECT NOTICE BEFORE AWARD THAT THE PROCEDURES BEING FOLLOWED WERE WRONG, THE AWARD SHOULD NOT BE CONSIDERED PLAINLY OR PALPABLY ILLEGAL, AND THE CONTRACT MAY ONLY BE TERMINATED FOR THE CONVENIENCE OF THE GOVERNMENT. JOHN REINER & CO. V. UNITED STATES, SUPRA; BROWN & SON ELECTRIC CO. V. UNITED STATES, 325 F.2D 446 (CT. CL. 1963)."

HOWEVER, BASED ON OUR INITIAL REVIEW AND DECISION AND OUR RECONSIDERATION HERE, WE CANNOT SAY THAT THE DEFECTS THAT WERE PRESENT IN THE PROCUREMENT WARRANT DISTURBING THE AWARD MADE TO JPL. ALTHOUGH NOT EXPRESSLY ARTICULATED IN THE OCTOBER 29 DECISION, IT WAS OUR POSITION THAT THE IRREGULARITIES WHICH DID OCCUR - THE QUESTIONABLE INTERPRETATION OF THE SPECIFICATION REQUIREMENT FOR "CHROMOSOME SPREAD IMAGE SCANNING OF GLASS SLIDES DIRECTLY FROM THE MICROSCOPE OR FROM PHOTOMICROGRAPHS;" THE FAILURE TO CLARIFY WHETHER JPL'S PROPOSAL WAS IN COMPLIANCE WITH THE SPECIFICATION REQUIREMENT TO "DEVELOP STATISTICAL PROGRAMS FOR USE WITH THE SYSTEM;" THE FAILURE OF THE TECHNICAL EVALUATION PANEL TO NUMERICALLY SCORE EACH PROPOSAL; AND THE DOUBTFUL VALIDITY OF THE CONTRACTING OFFICER'S COST AND BEST BUY ANALYSIS - PROVIDED NO BASES TO OBJECT TO THE AWARD SINCE THE COMPLAINED-OF MATTERS DID NOT AFFECT THE SUBSTANCE OF THE PROCUREMENT.

FURTHERMORE, AS NOTED IN OUR LETTER OF OCTOBER 29, 1973, THESE IRREGULARITIES WERE BROUGHT TO THE ATTENTION OF THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, WITH THE EXPECTATION THAT THEY WILL NOT OCCUR IN FUTURE PROCUREMENTS.

NBRF'S SECOND CONTENTION CONCERNS WHAT THAT FIRM CONSIDERS TO BE THE MOST ADVANTAGEOUS ISSUE RAISED IN ITS PROTEST. ONE OF THE REASONS GIVEN BY THE CONTRACTING OFFICER IN HIS LETTER OF FEBRUARY 13, 1973, AS TO WHY AWARD WAS NOT MADE TO NBRF WAS THAT "IN COMMENTING ON YOUR PROPOSAL, THE REVIEW COMMITTEE POINTED OUT THAT NONE OF THE KNOWN PURCHASERS OF YOUR SYSTEM HAVE FOUND IT SUITABLE TO PERFORM ROUTINE CHROMOSOME ANALYSIS. ***" NBRF CONTENDS THAT THIS IS THE PRIMARY REASON WHY NBRF WAS NOT AWARDED THE CONTRACT AND THAT GAO DID NOT ADEQUATELY CONSIDER IT. IN ADDITION, ONE OF THE MISSTATEMENTS OF FACT ALLEGED IN NBRF'S FIFTH CONTENTION, WHICH WE WILL CONSIDER HERE, CONCERNS THIS ISSUE. THE DECISION OF OCTOBER 29 STATED THAT "MOREOVER, IT IS OUR OPINION BASED UPON A REVIEW OF THE RECORD THAT THE PANEL'S RECOMMENDATION OF JPL WAS BASED PRIMARILY UPON ITS AFFIRMATIVE FINDINGS WITH RESPECT TO JPL'S PROPOSAL AND ABILITY TO SUCCESSFULLY COMPLETE THE PROJECT, RATHER THAN UPON ANY NEGATIVE OPINIONS EXPRESSED BY SOME OF THE PANEL MEMBERS AS TO THE PERFORMANCE OF YOUR EQUIPMENT UNDER EARLIER COMMERCIAL CONTRACTS. HENCE, WE DO NOT ASCRIBE ANY PARTICULAR SIGNIFICANCE TO THE VALIDITY OF THESE OPINIONS INSOFAR AS THE RECOMMENDATION OF JPL IS CONCERNED." NBRF CONTENDS THAT THE ABOVE QUOTED STATEMENT IS IN DIRECT CONTRADICTION TO THE FACTS AS STATED IN THE FEBRUARY 13 LETTER FROM THE CONTRACTING OFFICER.

IT IS OUR POSITION THAT THE NEGATIVE STATEMENTS OF THE REVIEW PANEL DID NOT CONSTITUTE THE PRIMARY REASON FOR NOT MAKING AWARD TO NBRF; AND THAT THE CONCLUSION REACHED IN OUR DECISION IS NOT IN DIRECT CONTRADICTION WITH THE FEBRUARY 13 LETTER FOR THE FOLLOWING REASONS:

ALTHOUGH NBRF CONTENDS THAT THE NEGATIVE STATEMENTS CONCERNING THE PAST PERFORMANCE OF ITS SYSTEM WERE THE PRIMARY REASONS WHY NBRF WAS NOT AWARDED THE CONTRACT, IT IS CLEAR FROM THE FEBRUARY 13 LETTER THAT THE AWARD WAS MADE TO JPL BASED UPON THE AFFIRMATIVE DETERMINATIONS OF THE TECHNICAL REVIEW PANEL THAT THE JPL PROPOSAL "*** OFFERED A BETTER PROBABILITY OF ACHIEVING THE OBJECTIVES OF THE CONTRACT PROGRAM. ***" IN ADDITION, THE LETTER DISCUSSED "SOME OF THE REASONS" WHY AWARD WAS NOT MADE TO NBRF. THESE REASONS WERE (1) THE NEGATIVE STATEMENTS CONCERNING THE PAST PERFORMANCE OF THE SYSTEM; (2) THE GEOGRAPHIC DISTANCE SEPARATING THE COMPUTER DEVELOPMENT FROM THE CYTOGENETICS LABORATORY; (3) THE LACK OF DEMONSTRATION OF EXPECTED DIFFICULTIES IN ADAPTING ITS APPROACH TO LARGE OF CHROMOSOME PREPARATIIONS; (4) THE DEFICIENCY IN TESTING THE PROTOTYPE SYSTEM; AND (5) THE FAILURE TO PROVIDE THE STRATEGY USED FOR CONVENTIONAL KARYOTYPE ANALYSIS. NEITHER THE FEBRUARY 13 LETTER NOR THE REMAINDER OF THE RECORD SUPPORTS NBRF'S CONTENTION THAT THE NEGATIVE STATEMENTS WERE THE PRIMARY REASONS WHY NBRF WAS NOT AWARDED THE CONTRACT. RATHER, AS WE STATED IN OUR DECISION, THE RECORD REVEALS THAT AWARD TO JPL WAS PREDICATED UPON AN AFFIRMATIVE DETERMINATION OF THE SUPERIORITY OF JPL'S PROPOSAL.

THIRD, NBRF CONTENDS THAT "ANOTHER IMPORTANT POINT SIDESTEPPED BY THE GAO IN ITS EVALUATION CONCERNS THE FPR REGULATION KNOWN AS 'THE ABILITY TO OBTAIN' (FPR 1-1.1203-4). ***" SECTION 1-1.1203-4 OF THE FPR PROVIDES AS FOLLOWS:

"EXCEPT TO THE EXTENT THAT A PROSPECTIVE CONTRACTOR PROPOSES TO PERFORM THE CONTRACT BY SUBCONTRACTING *** ACCEPTABLE EVIDENCE OF HIS 'ABILITY TO OBTAIN' EQUIPMENT, FACILITIES, AND PERSONNEL *** SHALL BE REQUIRED. THESE ARE NOT REPRESENTED IN THE CONTRACTOR'S CURRENT OPERATIONS, THEY SHOULD NORMALLY BE SUPPORTED BY COMMITMENT OR EXPLICIT ARRANGEMENT, WHICH IS IN EXISTENCE AT THE TIME THE CONTRACT IS TO BE AWARDED, FOR THE RENTAL, PURCHASE, OR OTHER ACQUISITION OF SUCH RESOURCES, EQUIPMENT, FACILITIES, OR PERSONNEL."

NBRF MAINTAINS THAT, CONTRARY TO THE ABOVE-QUOTED CLAUSE, THE JPL PROPOSAL EVIDENCES THAT THEY HAVE NOT YET DEVELOPED EVERYTHING THAT IS REQUIRED BY THE RFP BUT THAT IT INTENDS TO RESEARCH AND DEVELOP THESE REQUIREMENTS.

NBRF RAISED THIS ALLEGATION QUESTIONING JPL'S "ABILITY TO OBTAIN" IN ITS PROTEST AND OUR OFFICE DID NOT "SIDESTEP" THIS ISSUE IN THE OCTOBER 29 DECISION. RATHER, WE CONSIDERED THIS ALLEGATION AND CONCLUDED THAT THE DETERMINATION OF JPL'S COMPLIANCE WITH SECTION 1-1.1203-4 OF THE FRP IS A MATTER OF RESPONSIBILITY AND IS PROPERLY WITHIN THE PURVIEW OF THE PROCURING ACTIVITY. WE NOTED THAT "*** ONE OF THE MAJOR REASONS FOR THE TECHNICAL PANEL'S SITE VISIT TO JPL WAS TO ASCERTAIN JPL'S ABILITY TO OBTAIN EQUIPMENT, FACILITIES AND PERSONNEL AS STATED IN ITS PROPOSAL," AND THAT "THE TECHNICAL PANEL WAS SATISIFED WITH JPL'S ABILITY TO DO SO. ***" CONSEQUENTLY, WE DETERMINED THAT THE RECORD REASONABLY SUPPORTED THE PROCURING ACTIVITY'S AFFIRMATIVE DETERMINATION OF JPL'S COMPLIANCE WITH THIS SECTION OF THE FPR.

AS WE STATED IN B-181076, JUNE 5, 1974:

"THE DETERMINATION OF A PROPOSED CONTRACTOR'S RESPONSIBILITY IS LARGELY WITHIN THE DISCRETION OF THE CONTRACTING OFFICER. THE CONTRACTING ACTIVITY MUST HANDLE THE DAY-TO-DAY ADMINISTRATION OF THE CONTRACT AND BEAR THE BRUNT OF ANY DIFFICULTIES EXPERIENCED BY REASON OF THE CONTRACTOR'S LACK OF ABILITY. IF, PURSUANT TO THE APPLICABLE REGULATIONS, THE CONTRACTING OFFICER FINDS THE PROPOSED CONTRACTOR RESPONSBILE, WE DO NOT BELIEVE THE FINDING SHOULD BE DISTURBED EXCEPT ON THE BASIS OF FRAUD.

SINCE NO FRAUD HAS BEEN ALLEGED OR DEMONSTRATED, WE MUST DECLINE TO FURTHER CONSIDER THE MATTER.

WITH REGARD TO NBRF'S FOURTH CONTENTION CONCERNING THE REASONSING BEHIND THE GAO REFUSAL TO CANCEL THE CONTRACT, NBRF MAINTAINS THAT "*** GAO USES THE REASONING THAT BECAUSE THE CONTRACT WAS AWARDED, THEN OUR (NBRF) OBJECTION IS NOT VALID. ***" AS AN EXAMPLE OF WHAT NBRF CONSIDERS TO BE INCORRECT REASONING ON THE PART OF GAO, IT QUOTES THE FOLLOWING SENTENCE FROM THE OCTOBER 29 DECISION: "'THE SCIENTIFIC REVIEW PANEL AND THE CONTRACTING OFFICER AGREE THAT THE JPL PROPOSAL SATISFIES THESE RFP REQUIREMENTS' CONCERNING THE REQUIREMENTS TO RECORD COORDINATES TO THE NEAREST 1.25 MICRA."

IT APPEARS AS IF NBRF'S CONCLUSION THAT THE REASONING USED BY GAO WAS IMPROPER IS PREDICATED UPON A MISUNDERSTANDING OF THE RATIONALE CONTAINED IN THE DECISION.

AS WAS POINTED OUT IN THAT DECISION, IT IS A LONG-HELD AND FREQUENTLY STATED RULE OF OUR OFFICE THAT THE DRAFTING OF SPECIFICATIONS TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT, AS WELL AS THE FACTUAL DETERMINATION WHETHER ITEMS OFFERED MEET THE SPECIFICATIONS, IS PROPERLY THE FUNCTION OF THE PROCURING AGENCY AND NOT SUBJECT TO QUESTION BY OUR OFFICE UNLESS THE AGENCY HAS ACTED ARBITRARILY OR INREASONABLY. 52 COMP. GEN. 393 (1972); B -169633(2), JANUARY 4, 1972. IN THE DECISION OF OCTOBER 29, OUR OFFICE TOOK THE POSITION, WHICH WE AFFIRM HERE, THAT A REVIEW OF THE RECORD DOES NOT EVIDENCE THAT THE PROCURING ACTIVITY'S CONCLUSION THAT JPL'S PROPOSAL MEETS THE SPECIFICATIONS IS EITHER ARBITRARY OR UNREASONABLE. CONSEQUENTLY, OUR OFFICE CORRECTLY CONCLUDED THAT THE CONFORMITY OF JPL'S PROPOSAL TO THE SPECIFICATIONS WAS NOT SUBJECT TO QUESTION BY OUR OFFICE. OUR FUNCTION IN THIS SPECIFICATION AREA IS TO TEST THE REASONABLENESS OF THE AGENCY'S ACTION AGAINST THE RECORD AS IMPLEMENTED BY COMMENTS OF INTERESTED PARTIES. WE FOUND NO REASON ON THE RECORD TO HOLD THAT THE AGENCY EXERCISED ITS JUDGMENT IN A MANNER WHICH WAS EITHER PREJUDICIAL TO YOUR COMPETITIVE POSITION OR OTHERWISE UNREASONABLE.

THE FIFTH CONTENTION OF NBRF CONCERNS THE ALLEGATION OF TWO MISSTATEMENTS OF FACT THAT ARE CONTAINED IN THE OCTOBER 29 DECISION. THE FIRST MISSTATEMENT HAS BEEN DISCUSSED ABOVE IN CONJUNCTION WITH NBRF'S SECOND CONTENTION. THE SECOND MISSTATEMENT CONCERNS THE FOLLOWING SENTENCE CONTAINED IN THE DECISION: "*** ALTHOUGH CONSIDERATION WAS GIVEN TO VISITING YOUR FACILITIES, THE IDEA WAS REJECTED BECAUSE AT LEAST TWO OF THE PANEL MEMBERS WERE FAMILIAR WITH YOUR FACILITIES AS A RESULT OF A RECENT VISIT IN CONNECTION WITH A GRANT. IN THESE CIRCUMSTANCES, WE DO NOT BELIEVE THE DECISION WAS ARBITRARY." NBRF ALLEGES THAT CONTRARY TO THE ABOVE-QUOTED STATEMENT, NONE OF THE TECHNICAL EVALUATION MEMBERS HAS VISITED ITS LABORATORIES WITHIN THE LAST FIVE YEARS. FURTHERMORE, NBRF MAINTAINS THAT THE FEDERAL PROCUREMENT REGULATIONS REQUIRE A PROJECT SITE VISIT TO ASSESS CURRENT CAPABILITIES.

AS STATED IN THE CONTRACTING OFFICER'S MEMORANDUM FOR THE RECORD DATED JUNE 12, 1973, THE REASON NO SITE VISIT OF NBRF WAS CONDUCTED IS AS FOLLOWS:

"THE PANEL WAS KNOWLEDGEABLE OF THE NBRF CAPABILITIES AND FACILITIES. IS NOT THE GOVERNMENT'S POLICY, NOR IS IT ECONOMICALLY FEASIBLE, TO ROUTINELY PERFORM A SITE VISIT OF ALL PROPOSALS RECEIVED IN RESPONSE TO SOLICITATIONS. IN ACCORDANCE WITH FPR 1-1.1205-4(B), SITE VISITS SHOULD BE MADE WHEN INFORMATION IS NOT AVAILABLE BY OTHER MEANS TO DETERMINE THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR. OMISSION OF THE SITE VISIT TO NBRF DOES NOT IMPLY INADEQUATE EVALUATION OF THEIR PROPOSAL. THE PANEL DETERMINED, AND THE CONTRACTING OFFICER CONCURRED, AFTER REVIEW THAT A SITE VISIT WAS NOT REQUIRED." CONSEQUENTLY, ALTHOUGH OUR DECISION CORRECTLY CONCLUDED THAT THE DETERMINATION TO NOT CONDUCT A SITE VISIT WAS NOT ARBITRARY, AS DISCUSSED BELOW, THE FOLLOWING ADDITIONAL DATA IN THIS REGARD IS APPROPRIATE.

THE RECORD BEFORE US CONTAINS A MEMORANDUM DATED FEBRUARY 7, 1973, FROM FELIX DE LA CRUZ, M.D., SPECIAL ASSISTANT FOR PEDIATRICS TO THE CONTRACTING OFFICER. IN THIS MEMORANDUM, DR. DE LA CRUZ STATES THAT ON JANUARY 12, 1973 (WHICH WAS PRIOR TO THE DATE OF CONTRACT AWARD, FEBRUARY 1, 1973), THE NBRF WAS SITE VISITED BY A SPECIAL STUDY SECTION OF NIH TO REVIEW AN APPLICATION FOR A GRANT NUMBER 2 R01 HD 05361-10 "ANALYSIS OF CHROMOSOME KARYGRAMS," AND THAT THE VISITORS INCLUDED TWO MEMBERS OF THE TECHNICAL EVALUATION PANEL. CONSEQUENTLY, THERE IS A FACTUAL DISPUTE AS TO WHETHER OR NOT THE VISIT IN CONNECTION WITH THE GRANT APPLICATION OCCURRED. HOWEVER, THE RESOLUTION OF THIS DISPUTE IS OF NO RELEVANCE TO THE DETERMINATION OF THE BASIC ISSUE INVOLVED, WHICH IS WHETHER THE FAILURE OF THE PROCURING ACTIVITY TO CONDUCT A SITE VISIT OF NBRF IN CONJUNCTION WITH ITS PROPOSAL WAS PREJUDICIAL TO NBRF. THE RECORD INDICATES THAT THE DETERMINATION TO CONDUCT A SITE VISIT OF JPL'S FACILITIES WAS DUE TO DOUBTS OF THE EVALUATION PANEL CONCERNING WHETHER JPL HAD CERTAIN OPERATIONAL EQUIPMENT ON HAND, AS ASSERTED BY ITS PROPOSAL. THE EVALUATION PANEL RAISED QUESTIONS CONCERNING NBRF'S PROPOSAL IN THE AREAS OF "HOW TECHNIQUES WORK, I.E. % OF CHROMOSOMES VS % OF NON-CHROMOSOME" AND "QUALITATIVE INFORMATION FOR DOCUMENTATION OF INFORMATION OBTAINED BY THE SUBCONTRACTOR FROM NBRF" AND REQUESTED THAT NBRF PROVIDE WRITTEN CLARIFICATION OF THESE ISSUES.

THE DETERMINATIONS OF THE PANEL THAT A SITE VISIT TO JPL'S FACILITIES WAS NECESSARY AND THAT A WRITTEN RESPONSE BY NBRF WAS SUFFICIENT FOR CLARIFICATION OF THE QUESTIONS RAISED ARE WITHIN THE DISCRETION OF THE PANEL AND IN NO WAY INDICATE EITHER ARBITRARY BEHAVIOR ON THE PART OF THE PANEL OR PREJUDICE TO NBRF. FURTHERMORE, CONTRARY TO THE ALLEGATIONS OF NBRF, NEITHER SECTION 1-1.1203-4, NOR ANY OTHER SECTION OF THE FPR, REQUIRES THE CONDUCT OF A SITE VISIT TO A PROSPECTIVE CONTRACTOR.

NBRF'S SIXTH CONTENTION CONCERNS THE FAILURE OF THE EVALUATION PANEL TO NUMERICALLY SCORE THE PROPOSALS AS WAS REQUIRED BY THE RFP. THAT FIRM CONTENDS THAT THIS FAILURE WAS PREJUDICIAL TO IT AND THAT NBRF'S "*** TECHNICAL SUPERIORITY OVER JPL AND ALL OTHER OFFERORS WOULD HAVE BEEN VIVIDLY APPARENT IN THE NUMERICAL SCORES. ***" THE RFP CALLED FOR NUMERICAL SCORING OF THE PROPOSALS SUBMITTED AND THE FAILURE OF THE EVALUATION PANEL TO SO SCORE THE PROPOSALS WAS IMPROPER. HOWEVER, UPON REVIEW OF THE RECORD WE CANNOT CONCLUDE THAT A DIFFERENT RESULT WOULD HAVE BEEN REACHED IF THE NUMERICAL SCORING HAD BEEN PERFORMED.

IN CONCLUSION, NBRF MAINTAINS THAT GAO'S ANALYSIS "*** SEEMS TO HAVE ENTIRELY OVERLOOKED OR IGNORED THE BASIC POINTS OF OUR PROTEST WHICH CAN BE SIMPLY SUMMED UP AS FOLLOWS: ***" (1) THAT THE AWARD TO JPL WAS NOT THE MOST ADVANTAGEOUS TO THE GOVERNMENT; (2) THAT THE INFORMATION CONSIDERED BY THE CONTRACTING OFFICER WAS INCOMPLETE AND INACCURATE; (3) THAT THE PROCEDURES REQUIRED BY THE FPR AND RFP WERE VIOLATED BY THE CONTRACTING OFFICER; AND (4) THAT THE CONTRACTING OFFICER SHOWED PREJUDICE AGAINST NBRF AND BIAS IN FAVOR OF JPL.

WITH REGARD TO NBRF'S ALLEGATION THAT THE CONTRACT AWARD TO JPL WAS NOT MOST ADVANTAGEOUS TO THE GOVERNMENT, IT SHOULD BE NOTED THAT OUR DECISION CONSIDERED THIS ALLEGATION AND CONCLUDED THAT:

"NOTWITHSTANDING OUR VIEW AS TO THE VALIDITY OF THE COST AND BEST-BUY ANALYSIS, WE DO NOT BELIEVE THAT CANCELLATION IS JUSTIFIED IN VIEW OF THE NATURE OF THE PROCUREMENT AND APPLICABLE REGULATION, FPR 1-3.805-2, WHICH PROVIDES:

'IN SELECTING THE CONTRACTOR FOR A COST-REIMBURSEMENT TYPE CONTRACT, ESTIMATED COSTS OF CONTRACT PERFORMANCE AND PROPOSED FEES SHOULD NOT BE CONSIDERED AS CONTROLLING SINCE IN THIS TYPE OF CONTRACT ADVANCE ESTIMATES OF COST MAY NOT PROVIDE VALID INDICATOR OF FINAL ACTUAL COSTS. *** BEYOND THIS, HOWEVER, THE PRIMARY CONSIDERATION IN DETERMINING TO WHOM THE AWARD SHALL BE MADE IS: WHICH CONTRACTOR CAN PERFORM THE CONTRACT IN A MANNER MOST ADVANTAGEOUS TO THE GOVERNMENT.'

"WE NOTE THAT THE TECHNICAL REVIEW PANEL WAS UNANIMOUS IN ITS RECOMMENDATION THAT JPL BE SELECTED BASED UPON TECHNICAL CONSIDERATIONS. THEREFORE, WE DO NOT BELIEVE ANY SUBSTANTIAL PREJUDICE RESULTED FROM ANY ERRORS IN THE COST ANALYSIS."

IN 50 COMP. GEN. 110 (1970), IT WAS HELD THAT IN A NEGOTIATED PROCUREMENT IT IS WITHIN THE DISCRETION OF THE CONTRACTING AGENCY TO DETERMINE WHETHER IT IS TO THE GOVERNMENT'S ADVANTAGE TO AWARD A CONTRACT TO OTHER THAN THE LOW OFFEROR. IT DOES NOT APPEAR IN THE PRESENT INSTANCE THAT THE PROCURING ACTIVITY ABUSED ITS BROAD DISCRETION TO SELECT THE CONTRACTOR WHICH, IN ITS JUDGMENT, CAN PERFORM THE CONTRACT IN THE MANNER MOST ADVANTAGEOUS TO THE GOVERNMENT.

IN ADDITION, IT SHOULD BE NOTED THAT WE HAVE BEEN INFORMED BY MEMORANDUM DATED JANUARY 7, 1974, FROM THE CONTRACTING OFFICER THAT "*** THE ORIGINAL FAVORABLE TECHNICAL EVALUATION CONSIDERATION THAT LED TO THE SELECTION OF JPL FOR AWARD HAVE BEEN CONFIRMED AND REINFORCED BY THE CONTRACTOR'S SUCCESSFUL PERFORMANCE TO DATE ***.

IN ESSENCE, NBRF'S ALLEGATIONS THAT THE INFORMATION CONSIDERED BY THE CONTRACTING OFFICER WAS INCOMPLETE AND INACCURATE AND THAT THE CONTRACTING OFFICER SHOWED PREJUDICE AGAINST NBRF AND BIAS IN FAVOR OF JPL CONCERN QUESTIONS OF FACT AND OF THE CREDIBILITY OF THE MEMBERS OF THE TECHNICAL EVALUATION PANEL AND THE CONTRACTING OFFICER. UPON A REVIEW OF THE RECORD WE FIND NO SUBSTANTIATION OF THESE CONTENTIONS.

WE HAVE CONSIDERED NBRF'S ALLEGATION CONCERNING THE CONTRACTING OFFICER'S FAILURE TO FOLLOW THE PROCUEDURES REQUIRED BY FEDERAL PROCUREMENT REGULATIONS AND THE REQUEST FOR PROPOSALS IN THE FIRST ISSUE RAISED ABOVE. WE CONCLUDED THAT THE IRREGULAITIES WHICH OCCURED, AS DISCUSSED IN DETAIL IN OUR DECISION OF OCTOBER 29, DO NOT NECESSITATE THE TERMINATION OF THE AWARD TO JPL. WE REMAIN OF THIS VIEW.

THEREFORE, FOR THE REASONS SET FORTH ABOVE, OUR DECISION OF OCTOBER 29 IS AFFIRMED.