B-146306, NOV. 22, 1961

B-146306, NOV. 22, 1961

BUSINESS SYSTEMS LABORATORIES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 29, 1961, AND ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT TO ANCO TECHNICAL WRITING SERVICES, INC., UNDER PR AND C NO. 11803-61.

THE U.S. ARMY SIGNAL SUPPLY AGENCY, FORT MONMOUTH, NEW JERSEY, SOLICITED PROPOSALS FOR FURNISHING SERVICES AND MATERIALS TO PRODUCE MANUSCRIPT COPIES AND CAMERA-READY FLATS FOR A ,PROJECT ENGINEERS" DESIGN GUIDE.' THE GUIDE WAS TO BE PREPARED FROM A ROUGH MANUSCRIPT COPY WHICH WOULD BE LOANED TO THE SUCCESSFUL BIDDER AND WHICH WAS COMPLETE IN CONTENT, BUT REQUIRED EDITING, BOTH TECHNICAL AND LITERARY, COMPOSITION AND ART WORK. PROSPECTIVE BIDDERS WERE URGED TO EXAMINE THE ABOVE MANUSCRIPT AND WERE ADVISED THAT IT HAD BEEN COMPILED ON A TASK FORCE BASIS WITH EACH CHAPTER WRITTEN BY A DIFFERENT GROUP OF TECHNICAL EXPERTS; THAT THE CONTRACTOR'S TECHNICAL EDITORS WOULD BE REQUIRED TO REVIEW EACH CHAPTER FOR TECHNICAL ADEQUACY AND ARRANGE THE RELEVANT FACTS IN LOGICAL SEQUENCE; THAT ALL CHAPTERS MUST REFLECT A COMMON VIEWPOINT; AND THAT REDUNDANCY AND TECHNICAL INADEQUACY MUST BE REMOVED. BIDDERS WERE REQUIRED TO INCLUDE IN THEIR PROPOSALS THE NAMES OF THE TECHNICAL AND LITERARY EDITORS WHO WOULD BE ASSIGNED TO THE PROJECT, THEIR QUALIFICATIONS, BACKGROUND, AND AN ESTIMATE OF THE NUMBER OF MAN-HOURS EACH WOULD SPEND ON THE PROJECT.

TWENTY-FOUR PROPOSALS WERE RECEIVED RANGING FROM $6,836.15 TO $33,527.99. ELEVEN PROPOSALS OFFERING A LOWER PRICE THAN THE SUCCESSFUL BIDDER WERE REJECTED AS NONRESPONSIVE BECAUSE THEY FAILED TO INCLUDE THE NAMES OF TECHNICAL AND LITERARY EDITORS, THEIR QUALIFICATIONS, AND AN ESTIMATE OF MAN-HOURS, AS REQUIRED. TWO LOWER BIDS WERE REJECTED BECAUSE THE PERSONNEL TO BE ASSIGNED TO EDITORIAL WORK WERE CONSIDERED INADEQUATE IN NUMBER, EDUCATIONAL BACKGROUND AND EXPERIENCE. SIX LOWER BIDS, INCLUDING YOURS IN THE AMOUNT OF $15,331.83, WERE DISQUALIFIED ON THE BASIS OF LIMITED EDITORIAL AND/OR ART TIME AND WERE CONSIDERED AS BEING NONRESPONSIVE FROM THE STANDPOINT OF RECOGNIZING THE EXTENSIVENESS AND TECHNICAL SIGNIFICANCE OF THE TASK. AWARD WAS THEN MADE TO ANCO IN THE AMOUNT OF $19,745.

YOU PROTEST THIS AWARD ON THE GROUNDS THAT (1) YOUR PRICE WAS SIGNIFICANTLY LOWER THAN ANCO-S, (2) THE DIFFERENCES WHEREBY THE CONTRACTING OFFICER DETERMINED THAT ANCO'S OFFER WAS SUPERIOR TO YOURS HAVE NOT BEEN CLEARLY POINTED OUT, (3) YOUR EDITING TIME OF 150 HOURS WAS ONLY FINAL EDITING, AND PRELIMINARY EDITING AND REVIEW WERE INCLUDED IN OTHER CLASSIFICATIONS, (4) NO PREAWARD SURVEY WAS MADE TO CLEAR UP POINTS REQUIRING CLARIFICATION, (5) THE CONTRACTING OFFICER STATED IN HIS LETTER OF JUNE 20, 1961, THAT YOUR PROPOSAL WAS ACCEPTABLE, AND (6) CHICAGO, ILLINOIS, WHERE YOU ARE LOCATED, IS CLASSIFIED AS A LABOR SURPLUS AREA.

THIS CONTRACT WAS ENTERED INTO BY NEGOTIATION UNDER THE AUTHORITY OF 10 U.S.C. 2304 (A) (17) AND SECTION 15 OF THE SMALL BUSINESS ACT, 72 STAT. 384. CONSEQUENTLY, THE STATUTES AND REGULATIONS GOVERNING THE AWARD OF CONTRACTS UNDER FORMAL ADVERTISING PROCEDURES WERE INAPPLICABLE TO THE PROCUREMENT.

SECTION I (3) OF THE "FOREWORD" ATTACHED TO AND MADE A PART OF THE REQUEST FOR PROPOSALS, PROVIDES THAT---

"QUOTATIONS OR PROPOSALS WILL BE EVALUATED BY THE GOVERNMENT ON A BASIS WHICH INCLUDES THE MOST ADVANTAGEOUS METHOD OF APPROACH, CONTRACTOR'S EXPERIENCE, AVAILABILITY OF QUALIFIED TECHNICAL PERSONNEL ADEQUACY OF FACILITIES, AS WELL AS CONTRACTOR'S PROPOSED COSTS.'

PRICE WAS THEREFORE ONLY ONE OF SEVERAL FACTORS TO BE CONSIDERED IN MAKING AN AWARD. IN ADDITION TO YOUR BID THERE WERE 18 BIDS LOWER THAN ANCO, BUT IT WAS THE RESPONSIBILITY OF THE CONTRACTING OFFICER TO MAKE THE AWARD TO THE LOWEST RESPONSIVE BIDDER.

THE DIFFERENCES WHEREBY THE CONTRACTING OFFICER DETERMINED THAT ANCO WAS ENTITLED TO THE AWARD WERE PRIMARILY YOUR LIMITED EDITORIAL TIME AND A FAILURE TO RECOGNIZE THE EXTENSIVENESS AND TECHNICAL SIGNIFICANCE OF THE TASK. GOVERNMENT PERSONNEL FAMILIAR WITH THE SCOPE OF THE WORK ESTIMATED THAT AN ADEQUATE JOB WOULD REQUIRE APPROXIMATELY 1,000 MAN-HOURS OF EDITING AND 600 MAN-HOURS OF ART WORK, WHEREAS YOU OFFERED ONLY 150 HOURS OF EDITING, BUT OFFERED 1,850 HOURS OF ART TIME. THIS DEMONSTRATED A FAILURE TO PROPERLY EVALUATE THE RELATIVE IMPORTANCE OF THE DIFFERENT PHASES OF THE WORK OR TO GRASP THE EXTENT OF THE REQUIRED EDITORIAL WORK. YOU CONTEMPLATED ASSIGNING ONE TECHNICAL AND ONE LITERARY EDITOR TO THE PROJECT FOR 75 HOURS EACH. BY COMPARISON THE SUCCESSFUL BIDDER ASSIGNED 12 EDITORS TO THE PROJECT, 9 OF WHOM HAVE ENGINEERING DEGREES AND ALL OF WHOM ARE EMINENTLY QUALIFIED BY EDUCATION AND EXPERIENCE TO PERFORM THE WORK AT HAND.

WITH REFERENCE TO YOUR STATEMENT THAT YOUR EDITING TIME OF 150 HOURS WAS ONLY FINAL EDITING AND THAT PRELIMINARY EDITING AND REVIEW WERE INCLUDED IN OTHER CLASSIFICATIONS, AN EXAMINATION OF YOUR COST AND PRICE ANALYSIS FAILS TO REVEAL ANY OTHER CLASSIFICATION WHICH COULD POSSIBLY INCLUDE THE NECESSARY ADDITIONAL EDITING.

IN VIEW OF THE GREAT DISPARITY BETWEEN THE ACTUAL REQUIREMENTS OF THE CONTRACT AND YOUR ANALYSIS OF SAME AS INDICATED IN YOUR BID, IT IS NOT BELIEVED THAT ANY AMOUNT OF CLARIFICATION WOULD HAVE MADE YOUR BID RESPONSIVE. TO DO SO WOULD REQUIRE, RATHER, A COMPLETE NEW APPROACH AND A REVISION AND REALIGNMENT OF ALL ITEMS OF COST. IT DOES NOT APPEAR THEREFORE THAT FURTHER CONTACT OR A PREAWARD SURVEY WOULD HAVE SERVED ANY PURPOSE.

AS TO THE CONTRACTING OFFICER'S STATEMENT THAT YOUR BID WAS ACCEPTABLE, IT IS NOTED THAT HE REFERS TO YOURS AS ONE OF A NUMBER OF BIDS WHICH WERE ACCEPTABLE. PRESUMABLY HE HAD REFERENCE TO THE FACT THAT THESE BIDS WERE PROPER FOR CONSIDERATION, BUT THE AWARD, OF COURSE, COULD ONLY BE MADE TO ONE. THE FACT THAT YOU MAY BE LOCATED IN A LABOR SURPLUS AREA IS PERTINENT, BUT NOT CONTROLLING.

THE "GUIDE" CALLED FOR IN THE INSTANT PROCUREMENT IS THE FINALIZATION OF A VERY SUBSTANTIAL AND CONCERTED EFFORT BY THE U.S. ARMY RESEARCH AND DEVELOPMENT LABORATORIES TO SET FORTH DESIGN PRINCIPLES, PRACTICES, PROCEDURES AND TECHNIQUES APPLICABLE TO RESEARCH AND DEVELOPMENT OF SIGNAL CORPS EQUIPMENT AND IS FOR USE AS A COMMON REFERENCE BY SIGNAL CORPS ENGINEERS TO ACHIEVE EQUIPMENT DEVELOPMENT IN A UNIFORM MANNER CONSISTENT WITH SIGNAL CORPS STANDARDS. IN A NEGOTIATED PROCUREMENT SUCH AS THIS, WHERE PERSONAL FACTORS SUCH AS EDUCATION, EXPERIENCE AND THE NUMBER OF QUALIFIED PERSONNEL TO BE ASSIGNED TO THE PROJECT ARE OF PRIME IMPORTANCE, THE CONTRACTING OFFICER NECESSARILY MUST HAVE CONSIDERABLE LATITUDE IN THE EXERCISE OF HIS JUDGMENT AS TO WHICH BID GIVES THE BEST ASSURANCE OF SATISFACTORY PERFORMANCE.

THE DETERMINATION OF THE NEEDS OF THE GOVERNMENT AND THE QUALIFICATIONS OF BIDDERS IS PRIMARILY AN ADMINISTRATIVE RESPONSIBILITY AND IN THE ABSENCE OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR THE DETERMINATION IT WILL NOT BE DISTURBED BY THIS OFFICE. SINCE THE ACTION OF THE CONTRACTING OFFICER APPEARS TO BE FULLY JUSTIFIED, CONSIDERING THAT THIS WAS A NEGOTIATED PROCUREMENT, WE FIND NO BASIS FOR OBJECTING TO THE AWARD AS MADE.