B-179603, APR 4, 1974

B-179603, APR 4, 1974

1. AWARD BASED UPON PROPOSED COSTS FAR BELOW GOVERNMENT ESTIMATE AND PRIOR COSTS WAS NOT RESULT OF ARBITRARY ACTION BY CONTRACTING AGENCY SINCE PROCUREMENT WAS COMPETED FOR FIRST TIME, WORK OF PRIOR TWO CONTRACTS WAS COMBINED, ONE OF PRIOR CONTRACTS WAS OVERFUNDED, AND CERTAIN WORK UNDER PRIOR CONTRACTS WAS ELIMINATED. 2. AWARD OF COST-REIMBURSEMENT CONTRACT WILL NOT BE DISTURBED WHERE, CONTRARY TO PROTESTER'S CONTENTION, COST ANALYSIS APPEARS REASONABLE, AS SUCH JUDGMENT MUST PROPERLY BE LEFT TO ADMINISTRATIVE DISCRETION SINCE AGENCY PERSONNEL ARE IN BEST POSITION TO ASSESS "REALISM" OF COSTS IN RELATION TO TECHNICAL APPROACH AND PROCUREMENT REQUIREMENTS. FURTHERMORE, CLOSE OUT COSTS OF PRIOR CONTRACT PROPERLY EXCLUDED FROM COST ANALYSIS WHERE THEIR INCLUSION CONSIDERED TO BE DETRIMENTAL TO COMPETITION AND RFP DID NOT PROVIDE FOR THEIR CONSIDERATION. 50 COMP. GEN. 637 (1971). 3. WHILE POINT SCORING METHOD EMPLOYED IN EVALUATION MAY NOT HAVE PROVIDED PRECISE PICTURE OF RELATIVE TECHNICAL MERIT OF PROPOSALS, IT AT LEAST INDICATED THAT PROPOSALS WERE IN FACT SUBSTANTIALLY EQUAL IN TECHNICAL MERIT. MOREOVER, RECORD OF TECHNICAL EVALUATIONS REASONABLY SUPPORTS ADMINISTRATIVE CONCLUSION THAT LOW OFFEROR'S PROPOSAL WAS RESPONSIVE TO BASIC REQUIREMENTS OF RFP. THEREFORE, AWARD TO LOWER OFFEROR NOT ARBITRARY. 4. PROTEST CONCERNING PROPOSAL EVALUATION PROCEDURES IS WITHOUT MERIT WHERE RECORD INDICATES PROCEDURE FOLLOWED WAS REASONABLE EXERCISE OF ADMINISTRATIVE DISCRETION AND NOT VIOLATIVE OF ANY STATUTE OR REGULATION.

TO OHIO STATE UNIVERSITY, CALIFORNIA STATE UNIVERSITY:

REQUEST FOR PROPOSALS (RFP) NO. NE-R-00-3-0011 WAS ISSUED BY THE NATIONAL INSTITUTE OF EDUCATION (NIE), DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, TO SOLICIT PROPOSALS FOR A COST-TYPE CONTRACT FOR THE OPERATION OF AN EDUCATIONAL RESOURCES INFORMATION CENTER (ERIC) CLEARINGHOUSE ON CAREER EDUCATION TO MONITOR EDUCATIONAL LITERATURE IN THE CAREER EDUCATION FIELD, TO COLLECT, INDEX AND ABSTRACT EDUCATIONAL DOCUMENTS, TO PROVIDE USER SERVICES, AND TO SYNTHESIZE THE LITERATURE INTO INFORMATIONAL ANALYSIS PRODUCTS.

NOTICE OF THE SOLICITATION WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY ON MAY 22, 1973, WITH ISSUANCE PLANNED FOR MAY 29, 1973. DUE TO ADMINISTRATIVE DELAYS, THE SOLICITATION WAS NOT ISSUED UNTIL JUNE 1, 1973. THE ORIGINAL CLOSING DATE WAS SET FOR JULY 9, 1973, BUT WAS LATER EXTENDED TO JULY 12, 1973, BY AMENDMENT NO. 1, ISSUED ON JUNE 28, 1973. NIE RECEIVED 143 WRITTEN REQUESTS FOR THE RFP, AND NIE STATES THAT A COPY OF THE RFP AND A COPY OF AMENDMENT NO. 1 WERE SENT TO ALL 143 FIRMS. THE NIE CONTRACTS AND GRANTS OFFICE RECEIVED 14 TIMELY PROPOSALS ON JULY 12, 1973. THE NEXT DAY, COPIES OF THE TECHNICAL PROPOSALS WERE SENT TO THE HEAD OF THE ERIC PROGRAM, MR. HOOVER, WHO WAS CHAIRMAN OF THE RFP EVALUATION PANEL. THE CONTRACTS AND GRANTS OFFICE RETAINED ALL COPIES OF THE COST PROPOSALS.

AFTER EVALUATION 7 OF THE PROPOSALS WERE DEEMED TO BE TECHNICALLY ACCEPTABLE. SUBSEQUENTLY, THE COST PROPOSALS OF THE 7 OFFERORS WERE DISCUSSED AND IT WAS DETERMINED THAT 5 OF THE OFFERORS WERE WITHIN THE COMPETITIVE RANGE. IT WAS DETERMINED BY THE CONTRACT STAFF THAT NIE SHOULD CONDUCT FURTHER NEGOTIATIONS WITH THEM. NEGOTIATIONS WERE HELD WITH OHIO STATE UNIVERSITY'S CENTER FOR VOCATIONAL AND TECHNICAL EDUCATION (CVTE), AMERICAN INSTITUTE FOR RESEARCH, NORTHERN ILLINOIS UNIVERSITY (NIU), BOWLING GREEN UNIVERSITY, AND THE AMERICAN COLLEGE TESTING PROGRAM. THEY WERE GIVEN 7 CALENDAR DAYS TO SUBMIT A BEST AND FINAL OFFER. ALL 5 OFFERORS SUBMITTED BEST AND FINAL OFFERS ON OR BEFORE AUGUST 16, 1973, AND THE TECHNICAL PROPOSALS WERE AGAIN SENT TO MR. HOOVER WITH INSTRUCTIONS TO EVALUATE THE REVISED TECHNICAL PROPOSALS AGAINST THE ORIGINAL CRITERIA. THE REVISED COST PROPOSALS REPORTEDLY WERE RETAINED IN THE CONTRACTS AND GRANTS OFFICE.

THE EVALUATION PANEL UNDER MR. HOOVER FOUND BOTH CVTE'S AND NIU'S REVISED TECHNICAL PROPOSALS SUPERIOR TO THE OTHER TECHNICAL PROPOSALS AND EQUAL TO EACH OTHER. THE PANEL RECOMMENDED THAT THE CONTRACTS AND GRANTS OFFICE AWARD THE CONTRACT TO EITHER ONE. THAT CONTRACT OFFICE DECIDED, ON AUGUST 22, 1973, TO AWARD THE CONTRACT TO NIU SINCE ITS PROPOSED COSTS OF $151,828, EVEN WHEN THE COST OF OPTIONAL PRODUCTS WAS DISCOUNTED, WAS MUCH LOWER THAN CVTE'S PROPOSED COSTS OF $352,339.

PROTESTS AGAINST THE PROPOSED AWARD WERE RECEIVED BY THIS OFFICE FROM CVTE AND FROM CALIFORNIA STATE UNIVERSITY, LONG BEACH (CSULB).

ON SEPTEMBER 12, 1973, THE CONTRACTING OFFICER DETERMINED THAT THE AWARD TO NIU SHOULD BE MADE NOTWITHSTANDING THE PENDING PROTESTS BASED ON THE FOLLOWING CONSIDERATIONS AND CIRCUMSTANCES:

"1. REVIEW OF THE FORMAL PROTESTS OF OHIO STATE UNIVERSITY AND CALIFORNIA STATE UNIVERSITY HAS RESULTED IN A FINDING THAT BOTH PROTESTS ARE WITHOUT SUBSTANTIVE MERIT AND RECOMMENDATION TO GAO THAT THEY BE DENIED.

"2. INFORMATION REGARDING THE NIU PROPOSAL MISTAKENLY RELEASED PRIOR TO AWARD IN VIOLATION OF FPR 1-3.805-1(B) WOULD PRECLUDE MAKING AN AWARD UNDER THE RFP TO OTHER THAN NIU, WHICH HAS BEEN DETERMINED TO BE THE SUCCESSFUL OFFEROR WITHOUT A SERIOUS INEQUITY TO THAT INSTITUTION AND DAMAGE TO THE INTEGRITY OF THE GOVERNMENT. THE OHIO STATE UNIVERSITY AND CALIFORNIA STATE UNIVERSITY PROTESTS BOTH CITE FACTS EXCERPTED FROM THE NIU PROPOSAL EITHER BY DIRECT ACCESS OR HEARSAY. AN ARTICLE IN THE EDUCATION DAILY AS WELL AS FORMAL INQUIRIES FROM PROFESSIONAL ASSOCIATIONS AND CONGRESSMEN ALSO ILLUSTRATE THE PROLIFERATION OF THIS INFORMATION TO THE GENERAL PUBLIC. ACCORDINGLY, A COMPELLING JUSTIFICATION EXISTS FOR AN IMMEDIATE AWARD SO AS NOT TO FURTHER COMPROMISE NIU POSITION."

CVTE STATES THE FOLLOWING AS THE BASES FOR ITS PROTEST AND REQUESTS THAT THE AWARD TO NIU BE CANCELLED:

"1. HIGH NIE AND ERIC OFFICIALS HAD HOPED TO FUND MERGED, CONSOLIDATED CLEARINGHOUSES AT ABOUT $350,000 EACH. CLEARINGHOUSES TO BE MERGED CURRENTLY HAD COMBINED FUNDING AT ABOUT THIS LEVEL; THEREFORE, AWARD OF THE CONTRACT FOR $151,000 SEEMS IRRESPONSIBLE.

"2. ISSUANCE OF THE RFP WAS DELAYED UNTIL SUCH A TIME THAT IT WOULD BE DIFFICULT FOR INCUMBENT CONTRACTORS (CVTE AND SYRACUSE) TO RESPONSIBLY PHASE OUT PROFESSIONAL STAFF AND ACTIVITIES DURING THEIR CURRENT CONTRACT.

"3. ISSUANCE OF AN AMENDMENT TO THE SOLICITATION WAS RECEIVED TOO LATE FOR SOME BIDDERS TO UTILIZE. THE CVTE PROPOSAL WAS DATED JULY 9 (THE ORIGINAL CLOSING DATE) AND DELIVERED ON THAT DATE. THE NIU PROPOSAL WAS DATED JULY 12 (THE EXTENDED CLOSING DATE).

"4. THE AMENDMENT TO THE SOLICITATION CHANGED THE SCOPE OF WORK, PROVIDING INFORMATION THAT COULD BE USED ONLY BY THOSE RECEIVING THE AMENDMENT AT THE EARLIEST POSSIBLE TIME.

"5. NIU NAMED A NEW DIRECTOR IN ITS ADDENDUM WHO WAS REPORTED TO HAVE SHARED IN THE AUTHORSHIP OF ANOTHER PROPOSAL WHICH WAS A FINALIST.

"6. AN ORIGINAL PANEL OF 10 SELECTED HEW PERSONNEL RANKED NIU AS THIRD, TECHNICALLY. AFTER ADDENDUM, NIU WAS MOVED TO A TIE WITH CVTE FOR FIRST PLACE BY A SUBCOMMITTEE OF THE ORIGINAL PANEL.

"7. NIU WAS NOT RESPONSIVE TO CRITICAL REQUIREMENTS IN THE REQUEST FOR PROPOSAL.

"8. NIU'S PROPOSAL WAS NOT EQUAL TO THAT OF CVTE. FOR EXAMPLE, THE TOPICS SELECTED FOR ITS INFORMATION ANALYSIS PAPERS ALREADY HAD BEEN TREATED BY CVTE IN ITS FY72 AND FY73 SCOPE OF WORK."

WE CANNOT AGREE WITH CVTE'S CONTENTION THAT THE AWARD TO NIU ON THE BASIS OF ITS PROPOSED COSTS OF $151,828 WAS IRRESPONSIBLE SOLELY BECAUSE NIE ESTIMATED THE COSTS TO BE $350,000, OR BECAUSE THE PRIOR CONTRACTS TO PERFORM THE SAME WORK WERE FUNDED IN THE AMOUNT OF $350,000. IN THIS CONNECTION, NIE REPORTS THAT CVTE AND SYRACUSE UNIVERSITY WERE THE INCUMBENT CONTRACTORS, HAVING RECEIVED AWARDS OR GRANTS OVER THE PAST 6 YEARS ON A NONCOMPETITIVE BASIS. NIE DECIDED, PURSUANT TO SECTION 1- 3.101(D) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR), THAT THE INSTANT NEGOTIATED PROCUREMENT SHOULD BE COMPETITIVE. NIE CONSOLIDATED THE EFFORTS OF THE TWO FORMER ERIC CLEARINGHOUSES UNDER THE SOLICITATION IN QUESTION IN ORDER TO SAVE MONEY BY ELIMINATING OVERLAPPING EFFORTS. FURTHERMORE, THE CONTRACT AS AWARDED DID NOT INCLUDE, AS PAST CONTRACTS DID, VARIOUS AMOUNTS OF OPTIONAL INFORMATION ANALYSIS PRODUCTS WHICH COULD CAUSE THE OPERATIONAL COSTS TO VARY SIGNIFICANTLY. NIE HAS ALSO POINTED OUT THAT THE WORK AT SYRACUSE WAS OVERFUNDED BY $65,000.

CVTE ALSO QUESTIONS THE VALIDITY OF NIE'S COST COMPARISON OF ITS AND NIU'S PROPOSALS. CVTE CONTENDS THAT NIU'S PROPOSED SCOPE OF WORK IS LESS AND WHEN THIS DIFFERENCE IS CONSIDERED AND CLOSE OUT COSTS FOR ITS CURRENT CONTRACT ARE ADDED TO NIU'S PROPOSED COSTS, AND OTHER FACTORS ARE TAKEN INTO ACCOUNT, THE CVTE PROPOSED COSTS ARE SLIGHTLY LOWER THAN NIU'S.

NIE HAS RESPONDED TO THIS ARGUMENT BY POINTING OUT THAT EVEN IF CVTE'S METHOD OF COMPARISON IS ACCEPTED AS VALID, WHICH IT DISPUTES, NIU IS STILL SOME $11,000 LOWER IN PROPOSED COSTS BECAUSE CERTAIN OF THE FIGURES USED BY CVTE ARE ERRONEOUS. IN THIS CONNECTION, NIE STATES THAT THE FIGURE DEDUCTED FROM CVTE'S BASIC PRICE FOR INFORMATION ANALYSIS IS OVERSTATED, WHILE THE FIGURE DEDUCTED FROM NIU'S BASIC PRICE FOR THE SAME WORK IS UNDERSTATED. FURTHERMORE, NIE DISPUTES THE VALIDITY OF THE COMPARISON OF THE RESPECTIVE COSTS BY POINTING OUT THAT CVTE'S CALCULATION OF NIU'S UNIT INPUT COSTS IS QUESTIONABLE BECAUSE THERE IS NO CERTAINTY THAT CVTE'S VOLUME ESTIMATES AS TO THE NECESSARY SCOPE OF WORK TO ACCOMPLISH THE CONTRACT OBJECTIVES ARE MORE ACCURATE THAN NIU'S OR THE GOVERNMENT'S. MOREOVER, NIE POINTS OUT THAT ITS EVALUATION TEAM CONCLUDED THAT EXCEPT FOR ONE AREA, NIU'S PROPOSED EFFORT WAS ADEQUATE TO MEET THE REQUIRED SCOPE OF WORK. WHEN THE COST OF THIS ONE AREA, INFORMATION ANALYSIS, IS ADDED TO NIU'S PROPOSED COSTS, AND THE COMPARABLE FIGURE PROPOSED BY CVTE IS ADDED BACK TO NIE'S CALCULATIONS, NIE CONTENDS THAT NIU'S PROPOSED COSTS ARE STILL CONSIDERABLY LOWER. IN ADDITION, NIE ALSO STATES THAT CLOSE OUT COSTS WERE NOT INCLUDED IN THE EVALUATION BECAUSE NIE FELT THAT THEIR INCLUSION WOULD BE DETRIMENTAL TO COMPETITION. IN THIS CONNECTION, WE NOTE THAT THE RFP DID NOT LIST POSSIBLE CHANGE OVER COSTS AS AN EVALUATION FACTOR. 50 COMP. GEN. 637 (1971).

LASTLY, IT SHOULD BE POINTED OUT THAT ARTICLE XV ON PAGE 6 OF ATTACHMENT B OF THE RFP STATED THAT "COST WILL BE A SIGNIFICANT FACTOR IN THE AWARD DECISION***." IN ADDITION, THAT CLAUSE ALSO PROVIDED THAT AWARD WILL BE MADE TO THAT OFFEROR "WHOSE TECHNICAL/COST RELATIONSHIP IS THE MOST ADVANTAGEOUS ***." IN THIS CONNECTION, WE HAVE STATED THAT WHERE THE RFP INDICATES THAT COST WILL BE A FACTOR IN THE EVALUATION, THE STATUTES AND REGULATIONS GOVERNING NEGOTIATED PROCUREMENT CLEARLY CONTEMPLATE THAT AWARDS WILL BE MADE AT THE LOWEST POSSIBLE PRICES AFTER ALL OTHER RELEVANT FACTORS ARE CONSIDERED. B 168519, MAY 14, 1970. IN OUR DECISION, REPORTED AT 50 COMP. GEN. 390 (1970), CONCERNING JUDGMENTS AS TO WHETHER SUBMITTED PROPOSALS ARE REALISTIC CONCERNING THE PROPOSED COSTS AND TECHNICAL APPROACH INVOLVED, WE STATED:

"WE BELIEVE THAT SUCH JUDGMENT MUST PROPERLY BE LEFT TO THE ADMINISTRATIVE DISCRETION OF THE CONTRACTING AGENCIES INVOLVED, SINCE THEY ARE IN THE BEST POSITION TO ASSESS 'REALISM' OF COSTS AND TECHNICAL APPROACHES, AND MUST BEAR THE MAJOR CRITICISM FOR ANY DIFFICULTIES OR EXPENSES EXPERIENCED BY REASON OF DEFECTIVE COST ANALYSIS." 50 ID. AT 410.

CVTE ALSO CONTENDS THAT NIU'S PROPOSAL WAS NOT RESPONSIVE TO 4 BASIC REQUIREMENTS OF THE RFP. CVTE REFERS TO THE REQUIREMENTS CONCERNING AN ADVISORY BOARD, PERSONNEL, USER SERVICES, AND INFORMATION ANALYSIS PUBLICATIONS. IN ADDITION, THE PROTESTER CONTENDS THAT NIU DID NOT OFFER THE SAME SCOPE OF WORK AND IN SUPPORT OF THIS ARGUMENT PROVIDES A COMPARISON OF ITS AND NIU'S RESPONSES TO SEVERAL PROVISIONS OF THE RFP. MOREOVER, CVTE HAS QUESTIONED THE VALIDITY OF THE SECOND EVALUATION PANEL'S SCORING METHOD WHICH RESULTED IN THE CVTE AND NIU TECHNICAL PROPOSALS RECEIVING IDENTICAL SCORES OF 271 OUT OF A POSSIBLE 300. IT IS ARGUED THAT BY ADDING THE RAW SCORES OF THE EVALUATORS RATHER THAN WEIGHTED SCORES, THE GREATER DIFFERENCES IN THE RAW SCORES BETWEEN THE TWO PROPOSALS OF ONE OF THE THREE EVALUATORS RESULTED IN NIU GETTING A HIGHER POINT TOTAL THAN REPRESENTED BY THE WEIGHTED JUDGMENT OF THE PANEL'S MEMBERS. IT IS CVTE'S POSITION THAT THE CORRECT METHOD OF SCORING WOULD HAVE RESULTED IN NIU RANKING BELOW IT. FURTHERMORE, IT IS CONTENDED THAT THE EVALUATOR REFERRED TO ABOVE HAD SEEN THE COST PROPOSALS AT THE TIME OF HIS TECHNICAL RATING AND, THEREFORE, HIS SCORING WAS NOT BASED ONLY ON TECHNICAL MERIT.

IT IS CLEAR FROM THE INITIAL TECHNICAL EVALUATION THAT ALTHOUGH NIU'S TECHNICAL PROPOSAL RANKED BELOW CVTE'S, THE 10 MEMBER EVALUATION PANEL CONCLUDED THAT NIU'S PROPOSAL "EVIDENCED STRONG INSTITUTIONAL SUPPORT AND GOOD UNDERSTANDING OF THE TECHNICAL ASPECTS." THE LOWER RANKING RESULTED FROM "RESERVATIONS EXPRESSED *** ON THE QUALIFICATIONS OF THE PROPOSED DIRECTOR"; FROM THE FACT "THAT WHILE A WELL QUALIFIED ADVISORY BOARD HAD BEEN PROPOSED THERE WAS NO INDICATION THAT THE PROSPECTIVE MEMBERS WOULD ACTUALLY SERVE"; AND BECAUSE THE INFORMATION ANALYSIS, ALTHOUGH ACCEPTABLE, WAS NOT OUTSTANDING, RECEIVING 114 POINTS OUT OF A POSSIBLE 150. THE FINAL REVIEW PANEL CONCLUDED, HOWEVER, THAT NIU'S SCORE SHOULD BE INCREASED ON THE BASIS OF ITS REVISED PROPOSAL BECAUSE IT HAD ELIMINATED CERTAIN DEFICIENCIES, THE MOST IMPORTANT BEING CHANGES MADE IN KEY PERSONNEL. IN THIS REGARD, THE PANEL PARTICULARLY NOTED THE NEWLY PROPOSED DIRECTOR, "WHO IS RECOGNIZED AS ONE OF THE OUTSTANDING PEOPLE IN THE CAREER EDUCATION FIELD."

IN ADDITION TO THE NARRATIVE DISCUSSION OF THE EVALUATORS, THE FILE INCLUDES A TECHNICAL SCORING SHEET SHOWING THE POINTS ASSIGNED BY THE EVALUATORS TO EACH PROPOSAL FOR THE VARIOUS FACTORS SPECIFIED IN THE RFP. THE EVALUATORS' SCORES REFLECT THEIR JUDGMENT WITH RESPECT TO THE TECHNICAL MERIT OF THE RESPECTIVE OFFERORS' RESPONSES TO EACH CRITERION ON THE BASIS OF THE POINTS SPECIFIED IN THE RFP. WHILE THE POINT TOTALS FOR NIU AND CVTE WERE EQUAL, NIU SCORED HIGHER IN FOUR AREAS, CVTE SCORED THE HIGHEST IN TWO AREAS, AND THREE CRITERIA WERE SCORED THE SAME FOR BOTH OFFERORS.

WITH REGARD TO TECHNICAL EVALUATIONS, IT HAS BEEN THE CONSISTENT POSITION OF OUR OFFICE THAT IN SUCH MATTERS WE MUST DEFER TO THE JUDGMENT OF THE ADMINISTRATIVE AGENCY IN THE ABSENCE OF CLEAR EVIDENCE THAT THE AGENCY HAS ACTED ARBITRARILY. 51 COMP. GEN. 621 (1972). IT IS OUR VIEW THAT THE RECORD IN THE INSTANT CASE IS DEVOID OF EVIDENCE WHICH WOULD JUSTIFY OUR OFFICE CONCLUDING THAT THE TECHNICAL JUDGMENTS WERE WITHOUT A REASONABLE BASIS. WE BELIEVE THE RECORD OF THE EVALUATIONS ESTABLISHES THAT NIU'S PROPOSAL WAS RESPONSIVE TO THE BASIC REQUIREMENTS OF THE RFP, AS REFLECTED IN BOTH THE NARRATIVE OF THE EVALUATIONS AND THE POINT SCORES ASSIGNED TO THE VARIOUS EVALUATION CRITERIA. WHILE THE RAW SCORING METHOD EMPLOYED MAY NOT HAVE PROVIDED AS PRECISE A PICTURE OF THE RELATIVE TECHNICAL MERITS OF THE PROPOSALS AS THE WEIGHTED METHOD, IT AT LEAST INDICATED THAT THE PROPOSALS WERE IN FACT SUBSTANTIALLY EQUAL IN TECHNICAL MERIT. THESE CIRCUMSTANCES, AND IN VIEW OF THE FACT THAT NIU'S PROPOSAL WAS DETERMINED SIGNIFICANTLY MORE ADVANTAGEOUS FROM A COST STANDPOINT, WE ARE UNABLE TO CONCLUDE THAT NIE ARBITRARILY EXERCISED THE DISCRETION COMMITTED TO IT IN EVALUATING THE OFFERS OR IN MAKING THE AWARD.

CVTE HAS ALSO COMPLAINED THAT THE RFP WAS ISSUED AT SUCH A LATE DATE THAT IT PUT THE INCUMBENT CONTRACTORS IN THE POSITION OF EITHER REDUCING THEIR STAFFS AND CAPACITY OR RISKING BEING CAUGHT WITH A FULL STAFF AND CAPABILITY AT THE EXPIRATION OF THEIR CONTRACTS.

WHILE THE ISSUANCE OF THE RFP MAY HAVE CAUSED THE INCUMBENT CONTRACTORS SOME CONCERN AS INDICATED, WE DO NOT BELIEVE THIS IN ANY WAY AFFECTS THE LEGALITY OF THE AWARD IN QUESTION. FURTHERMORE, BOTH THE CVTE AND SYRACUSE CONTRACTS PROVIDED FOR EXPIRATION ON AUGUST 31, 1973. THEREFORE, NO ACTION BY OUR OFFICE WITH RESPECT TO THIS COMPLAINT IS INDICATED.

NEXT CVTE COMPLAINS ABOUT AN AMENDMENT TO THE SOLICITATION WHICH WAS DATED JUNE 28, 1973, BUT WAS ISSUED AND RECEIVED ON JULY 6, 1973, ONLY THREE DAYS BEFORE THE ORIGINAL DATE SET FOR THE CLOSING OF NEGOTIATIONS. CVTE CONTENDS THAT THE AMENDMENT CHANGED THE SCOPE OF WORK DEFINED IN THE RFP AND THAT IT WAS PREJUDICED BY THE SHORT TIME TO RESPOND. CVTE ALSO CONTENDS THAT VOLUME ESTIMATES MENTIONED DURING THE NEGOTIATIONS CHANGED THE SCOPE OF THE WORK.

THE AMENDMENT STATED AS FOLLOWS:

"1. THE AVERAGE AMOUNT OF FULL-TIME EQUIVALENT MAN-YEARS CURRENTLY EXPENDED IN THE EXISTING ERIC CLEARINGHOUSES IS ELEVEN. THIS INCLUDES ALL PERSONNEL. THIS INFORMATION IS PROVIDED FOR INFORMATION PURPOSES ONLY. OFFERORS SHOULD BASE THEIR PROPOSAL UPON THEIR OWN INDEPENDENT ESTIMATE OF THE EFFORT REQUIRED TO SUCCESSFULLY COMPLETE THE TASK SET FORTH."

NIE STATES THAT THE AMENDMENT WAS ISSUED FOR INFORMATIONAL PURPOSES AFTER SEVERAL OF THE PROSPECTIVE OFFERORS ASKED FOR A CLARIFICATION OF THE TERM "MAN-YEARS" USED IN THE RFP. IT REPORTEDLY WAS ISSUED "MERELY TO GIVE INFORMATION ON APPROXIMATE MANPOWER REQUIRED BY SIMILAR UNDERTAKINGS," AND DID NOT CHANGE THE SCOPE OF WORK REQUIRED.

SINCE THE AMENDMENT WAS SENT TO ALL 143 FIRMS WHO REQUESTED THE RFP ON THE SAME DAY, AND SINCE THE AMENDMENT DID IN FACT EXTEND THE CLOSING DATE FROM JULY 9 TO JULY 12, 1973, WE FIND NO REASON TO CONCLUDE THAT CVTE WAS AT A COMPETITIVE DISADVANTAGE. FURTHERMORE, IT APPEARS THAT THE AMENDMENT WAS ISSUED FOR THE PURPOSE STATED AND NOT TO ESTABLISH A MANDATORY LEVEL OF EFFORT. NIE REPORTS THAT THE DOCUMENT VOLUME ESTIMATES STATED DURING NEGOTIATIONS WERE USED ONLY TO DETERMINE THE BASIS OF EACH OFFEROR'S PROJECTIONS AND DID NOT AFFECT THE SCOPE OF WORK. WE FIND NO BASIS IN THE RECORD TO DISAGREE WITH THIS POSITION.

CVTE CONTENDS FURTHER THAT THE ENTIRE SELECTION PROCESS WAS IMPROPER BECAUSE IT WAS CONDUCTED BY MEMBERS OF THE DEPARTMENT OF HEW WITHOUT PROFESSIONAL ASSISTANCE OF EXTERNAL FIELD READERS AND BECAUSE THE SECOND EVALUATION PANEL DID NOT OBTAIN THE CONCURRENCE OF THE ORIGINAL PANEL OF 10, WHICH RANKED CVTE FIRST AND NIU THIRD. FURTHERMORE, IT IS CONTENDED THAT THE SECOND PANEL WAS UNDULY INFLUENCED BY ITS KNOWLEDGE OF THE COST PROPOSALS.

IN THIS REGARD NIE STATES:

"THE COMPOSITION OF THE EVALUATION PANEL AND THE MANNER IN WHICH IT CONDUCTED ITS TECHNICAL REVIEWS IN THIS CASE WERE NORMAL PROCEDURE AT NIE. THERE ARE NO REQUIREMENTS THAT OTHER THAN NIE PERSONNEL SIT ON PANELS, THAT THE REVIEW OF BEST AND FINAL OFFERS BE CONDUCTED BY EXACTLY THE SAME PANEL THAT REVIEWED THE ORIGINAL PROPOSALS NOR THAT THE SECOND PANEL GAIN THE CONCURRENCE OF THE FIRST PANEL. NIE LOOKS TO THE PANEL CHAIRMAN TO ASSURE THAT REVIEWS ARE CONDUCTED ON THE TECHNICAL ASPECTS OF PROPOSALS AND ARE RATED ONLY AGAINST CRITERIA LISTED IN THE RFP. ALTHOUGH THE SECOND PANEL IN THIS CASE HAD ACCESS TO SOME OF THE AMENDED BUSINESS PROPOSALS, THEY DID NOT KNOW NIU'S COSTS AND RATED ONLY THE TECHNICAL ASPECTS OF THE PROPOSALS AGAINST THE ORIGINAL CRITERIA ***. MR. HOOVER 'FACTORED' THE NIU AND OHIO STATE'S BUDGETS AFTER THE SECOND PANEL HAD MET AND AFTER THE NIU AMENDED BUSINESS PROPOSAL HAD BEEN PROVIDED TO HIM BY CONTRACT OFFICE STAFF."

WE HAVE HELD THAT DETERMINATIONS WITH RESPECT TO PROPOSAL EVALUATIONS ARE MATTERS WITHIN THE DISCRETIONARY AUTHORITY OF THE PROCUREMENT AGENCY AND OUR OFFICE WILL NOT QUESTION SUCH DETERMINATIONS ABSENT A CLEAR SHOWING OF UNREASONABLENESS OR VIOLATION OF PROCUREMENT STATUTES OR REGULATIONS. 174799, JUNE 30, 1972. WE FIND NOTHING IN THE PRESENT RECORD TO INDICATE THAT THE EVALUATION PROCEDURE WAS ARBITRARY OR IN VIOLATION OF ANY PROCUREMENT STATUTE OR REGULATION.

CVTE STATES THAT DR. DAVID TIEDEMAN, DIRECTOR OF THE NIU CLEARINGHOUSE, WAS A CONTRIBUTING AUTHOR OF THE PROPOSAL SUBMITTED BY THE AMERICAN INSTITUTES FOR RESEARCH (AIR), A 25 PERCENT STAFF MEMBER IN THE ORIGINAL NIU PROPOSAL, AND THE PROJECT DIRECTOR IN THE NIU ADDENDUM. CVTE CHARGES THAT THIS ARRANGEMENT WAS "INCONGRUENT", AND IMPLIES THAT THERE WAS COLLUSION BETWEEN NIU AND AIR.

WE FIND NO EVIDENCE TO SUPPORT THIS CHARGE. IN THIS CONNECTION, IN A LETTER TO OUR OFFICE DATED DECEMBER 4, 1973, DR. TIEDEMAN STATES:

"FIRST, DEAN JAMES E. HEALD OFFERED ME EMPLOYMENT AS PROFESSOR AT NORTHERN ILLINOIS UNIVERSITY EFFECTIVE 18 AUGUST 1973 IN A LETTER DATED 10 MAY 1973. I ACCEPTED HIS OFFER IN A LETTER DATED 15 MAY 1973. IMMEDIATELY ALSO FILED A MEMORANDUM WITH DR. JOHN C. FLANAGAN, PRESIDENT, AMERICAN INSTITUTES FOR RESEARCH AND DIRECTOR OF THEIR PALO ALTO OFFICE WHERE I WAS EMPLOYED WHICH OFFERED MY RESIGNATION FROM AIR EFFECTIVE 15 AUGUST 1973. IN REALITY I CONTINUED MY EMPLOYMENT AT AIR THROUGH 10 AUGUST 1973 BECAUSE THAT WAS THE END OF A WEEK AND AN AIR PAY PERIOD.

"MY APPOINTMENT AT NIU AND MY RESIGNATION AT AIR PRECEDED NIE'S ISSUANCE OF SOLICITATION RFP-NE-R-00-3-0011. WHEN THE SOLICITATION APPEARED I WAS STILL EMPLOYED AT AIR AND KNEW THAT AIR WAS GOING TO COMPETE FOR THE CONTRACT. DR. JAMES E. DUNN WHO ACTUALLY WROTE THE PROPOSAL ASKED ME FOR IDEAS ONE OR TWO TIMES BUT HE WROTE THE AIR PROPOSAL QUITE INDEPENDENTLY FROM ME. PRIOR TO THE DEADLINE FOR SUBMISSION OF PROPOSALS I ALSO CAME TO KNOW THAT NIU INTENDED TO FILE A PROPOSAL AS WELL. AT THIS TIME, EVEN THOUGH I WAS EXCITED ABOUT THE POSSIBILITY THAT AN INSTITUTION WHERE I WAS GOING TO PROFESS MIGHT HAVE RESPONSIBILITY FOR LEADING THE COUNTRY INTO EDUCATIONAL IMPROVEMENT THROUGH CAREER EDUCATION, I MADE IT CLEAR TO ALL CONCERNED AT NIU THAT I WAS IN A SITUATION IN WHICH A CONFLICT OF INTEREST COULD ESSENTIALLY ARISE. I WAS THEREFORE NEVER CONSULTED ABOUT THE NIU PROPOSAL. I SAW NEITHER THE AIR NOR THE NIU PROPOSALS BEFORE EITHER WAS SUBMITTED TO NIE. THE NIU PROPOSAL WAS WRITTEN PRIMARILY BY DR. BETTY J. BOSDELL AND DR. JOANN HARRIS AT NIU QUITE INDEPENDENTLY OF ME."

FINALLY, CVTE CONTENDS THAT NIE'S DETERMINATION TO MAKE THE AWARD TO NIU NOTWITHSTANDING THE PROTEST WAS BASED UPON ERRONEOUS CONSIDERATIONS. AGREE. THE FACT THAT NIE MISTAKENLY RELEASED NIU'S PROPOSAL TO CVTE IS NOT A PROPER BASIS UNDER FPR 1-2.407-8(B)(4) TO MAKE AN AWARD PRIOR TO RESOLUTION OF THE PROTEST. HOWEVER, WE SEE NO BASIS FOR CONCLUDING THAT CVTE WAS PREJUDICED OR THAT THE VALIDITY OF THE AWARD WAS AFFECTED.

IN VIEW OF THE ABOVE, THE PROTEST OF OHIO STATE/CVTE IS DENIED.

CALIFORNIA STATE UNIVERSITY/LONG BEACH'S (CSULB) SOLE CONTENTION IS THAT IT WAS FORCED TO SUBMIT AN INFERIOR PROPOSAL BECAUSE NIE FAILED TO SEND IT A COPY OF THE RFP AS REQUESTED ON JUNE 12, 1973, AND DID NOT NOTIFY IT OF THE AMENDMENT AND EXTENSION OF THE CLOSING DATE FROM JULY 9 TO JULY 12, 1973.

IN THIS REGARD, NIE STATES THAT ITS RECORDS FAIL TO SHOW THAT ANY REQUEST FOR THE RFP WAS RECEIVED FROM CSULB. CONSEQUENTLY, NEITHER THE RFP NOR THE SUBSEQUENT AMENDMENT WERE SENT TO CSULB.

SINCE CSULB'S FAILURE TO RECEIVE A COPY OF THE RFP AND AMENDMENT DOES NOT APPEAR TO HAVE BEEN THE FAULT OF NIE AND COMPETITION WAS OTHERWISE ADEQUATE, ITS PROTEST IS ALSO DENIED.