B-161480, JUL. 5, 1967

B-161480, JUL. 5, 1967

BIDS - EVALUATION - POINT SYSTEM DECISION TO PROTESTING OFFEROR THAT NEGOTIATION PROCEDURE AND POINT SYSTEM EVALUATION USED FOR PROCUREMENT OF CONTRACT FOR MOVIE BY BUREAU OF LAND MANAGEMENT WERE NOT IMPROPER. PROTEST DENIED.

TO MR. JOHN D. DESMOND, VICE PRESIDENT, UNITED WORLD FILMS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 8, 1967, PROTESTING THE METHODS USED BY THE BUREAU OF LAND MANAGEMENT, DEPARTMENT OF THE INTERIOR, IN THE NEGOTIATION OF A CONTRACT WITH STERLING MOVIES U.S.A; PURSUANT TO REQUEST FOR PROPOSALS NO. 67-4, ISSUED JANUARY 26, 1967.

IN JANUARY 1967 THE BUREAU OF LAND MANAGEMENT WAS COMPLETING THE PRODUCTION OF A MOTION PICTURE CONCERNING ITS ACTIVITIES IN THE MANAGEMENT OF THE PUBLIC LANDS AND RESOURCES. THE BUREAU DESIRED TO NEGOTIATE A CONTRACT WITH A PROFESSIONAL BOOKING FIRM FOR SHOWINGS OF THE MOTION PICTURE AT UNIVERSITIES, HIGHER EDUCATIONAL INSTITUTIONS GENERALLY, HIGH SCHOOLS, AND AT OTHER PLACES WHERE THE AUDIENCES WOULD CONSIST OF ADULT GROUPS HAVING A PARTICULAR INTEREST IN THE CONSERVATION OF THE PUBLIC LANDS AND RESOURCES. IT WAS CONTEMPLATED THAT A LIMITED NUMBER OF FILM PRINTS WOULD BE AVAILABLE DURING THE SPRING OF 1967, THAT THE SUCCESSFUL OFFEROR WOULD PROVIDE BOOKING SERVICES WHEN FILM PRINTS FIRST BECAME AVAILABLE UNTIL JUNE 30, 1967, AND THAT BOOKING SERVICES WOULD BE CONTINUED UNDER CONTRACT RENEWALS EACH JULY 1.

PROPOSALS WERE REQUIRED TO BE SUBMITTED ON OR BEFORE FEBRUARY 17, 1967, AND IT WAS DETERMINED THAT THREE OF THE FIRMS WHICH HAD SUBMITTED TIMELY PROPOSALS APPEARED TO BE GENERALLY QUALIFIED TO PERFORM THE PROPOSED CONTRACT. THOSE FIRMS WERE: STERLING MOVIES U.S.A; ASSOCIATION FILMS AND YOUR COMPANY. THE GOVERNMENT WAS NOT THEN IN A POSITION TO DETERMINE WHICH OF THE THREE APPARENTLY ACCEPTABLE PROPOSALS WAS THE MOST ADVANTAGEOUS TO THE GOVERNMENT. ACCORDINGLY, BY LETTERS DATED MARCH 29, 1967, EACH OF THE FIRMS WAS ADVISED THAT THE BUREAU WAS MODIFYING THE PROPOSAL REQUEST TO INCORPORATE A SPECIFIED RATING SYSTEM AND PROPOSAL GUIDE, THAT THE BUREAU WOULD ALLOW EACH FIRM TO EXPAND OR ALTER ITS PROPOSAL AND THAT FINAL PROPOSALS WERE TO BE SUBMITTED NOT LATER THAN 2:00 P.M; APRIL 10, 1967.

THE SPECIFIED RATING SYSTEM INDICATED THE VARIOUS FACTORS WHICH WERE TO BE GIVEN CONSIDERATION IN THE SELECTION. UNDER THAT SYSTEM, POINT RATINGS WERE ASSIGNED TO THE MAIN CATEGORIES OF PLANT CAPABILITY, PREVIOUS EXPERIENCE IN FILM BOOKING AND DISTRIBUTION, RECENT EXPERIENCE IN DISTRIBUTING CONSERVATION FILMS, GENERAL PROMOTIONAL TECHNIQUES, PROPOSAL CONTENT, AND PRICE FOR SERVICES RENDERED.

YOU OBJECTED TO THE USE OF THE PROPOSED RATING SYSTEM AND QUESTIONED THE WEIGHTS ASSIGNED TO CERTAIN OF THE FACTORS WHICH WERE SET FORTH IN THE RATING SYSTEM AND PROPOSAL GUIDE. HOWEVER, BY LETTER DATED APRIL 19, 1967, YOU PROVIDED CERTAIN INFORMATION IN AMPLIFICATION OF YOUR PROPOSAL. SINCE THAT LETTER WAS RECEIVED AFTER THE CLOSING DATE FOR THE SUBMISSION OF FINAL PROPOSALS, IT WAS NOT CONSIDERED IN THE EVALUATION OF THE PROPOSAL SUBMITTED BY YOUR COMPANY. THE FINAL PROPOSAL OF STERLING MOVIES U.S.A; RECEIVED THE HIGHEST POINT TOTAL UNDER THE SPECIFIED RATING SYSTEM AND, AS YOU WERE ADVISED BY LETTER OF APRIL 24, 1967, A CONTRACT WAS NEGOTIATED WITH THAT FIRM. THE LETTER ALSO RESPONDED TO THE QUESTIONS RAISED BY YOU IN REGARD TO THE SPECIFIED RATING SYSTEM AND PROPOSAL GUIDE.

YOUR LETTER OF MAY 8, 1967, EXPRESSES THE OPINION THAT THE METHODS EMPLOYED BY THE BUREAU OF LAND MANAGEMENT IN THIS CASE WERE EXTRAORDINARY AND LIMITING ON THE GOVERNMENT'S ABILITY TO OBTAIN THE LOWEST PRICE FOR DELIVERED QUANTITIES (AUDIENCES). IT IS STATED THAT WEIGHTS WERE ASSIGNED TO AREAS OF CONSIDERATION WHICH BY THEIR NATURE WERE RELATIVE AND COULD NOT BE PRECISELY MEASURED. IT IS SUGGESTED THAT NEGOTIATIONS SHOULD HAVE BEEN CONDUCTED ONLY WITH YOUR COMPANY BECAUSE IT HAD SUBMITTED THE LOWEST OFFER. THE LETTER REFERS TO OTHER CONTRACTS AWARDED TO YOUR COMPANY BY VARIOUS GOVERNMENT AGENCIES, AND INDICATES THAT IN EACH SUCH CASE AWARD WAS MADE ON THE LOW BID OR OFFER SUBMITTED BY A RESPONSIBLE BIDDER OR OFFEROR.

THE CONTRACT WITH STERLING MOVIES U.S.A; WAS NEGOTIATED PURSUANT TO THE PROVISIONS OF SUBSECTION 252 (C) OF TITLE 41, U.S.C. EXCEPTION (10), BECAUSE IT WAS FOUND TO BE IMPRACTICABLE TO SECURE COMPETITION UNDER THE PROCEDURES APPLICABLE TO FORMALLY ADVERTISED PROCUREMENTS. THE DEPARTMENT OF THE INTERIOR HAS REPORTED THAT, IN ORDER FOR THE MOTION PICTURE FILM TO ACHIEVE THE MAXIMUM MEANINGFUL EXPOSURE, THE BUREAU OF LAND MANAGEMENT REQUIRED A DISTRIBUTION PLAN RESTRICTED TO AUDIENCES ACTIVE AND/OR DIRECTLY INTERESTED IN THE CONSERVATION AND MANAGEMENT OF PUBLIC LANDS; THAT MASS DISTRIBUTION TECHNIQUES WERE NOT DESIRED; AND THAT IT WAS THEREFORE DETERMINED THAT THE CONSIDERATION OF SUCH FACTORS AS DISTRIBUTION PLANS, PROMOTIONAL TECHNIQUES, AND EXPERIENCE IN DEALING WITH CONSERVATION GROUPS, WOULD BE NECESSARY TO ASSURE THE SELECTION OF THE MOST ADVANTAGEOUS PROPOSAL FOR THE GOVERNMENT.

IT IS STATED IN THE DEPARTMENTAL REPORT THAT AN AWARD BASED SOLELY ON THE LOWEST BOOKING PRICE WITHOUT ASSURANCE THAT THE OFFEROR COULD PROVIDE THE SELECTIVE DISTRIBUTION NECESSARY COULD HAVE RESULTED IN GREATER COST AND REDUCED EFFECTIVENESS. THE REPORT ALSO SETS FORTH THAT MEETINGS WERE HELD WITH EACH OF THE APPARENTLY ACCEPTABLE OFFERORS AND THAT IT WAS MADE CLEAR TO THEM THAT THE BUREAU OF LAND MANAGEMENT REQUIRED SPECIAL INDIVIDUALIZED SERVICE. IT WAS REPORTEDLY EMPHASIZED AT THOSE MEETINGS THAT EXCELLENCE OF THE DISTRIBUTION PLAN SUBMITTED WOULD BE OF PRIMARY CONCERN AND THAT THE PROPOSED PRICE FOR SERVICES RENDERED WOULD BE ONLY ONE OF THE NUMBER OF FACTORS TO BE CONSIDERED IN THE SELECTION OF A FIRM FOR CONTRACT NEGOTIATIONS.

THE DECISION TO NEGOTIATE THE PROPOSED CONTRACT APPEARS TO HAVE BEEN BASED UPON REASONABLE GROUNDS AND THE FACT THAT YOU MAY HAVE SUBMITTED THE LOWEST PROPOSAL WOULD NOT NECESSARILY HAVE REQUIRED THE CONTRACT TO BE AWARDED TO YOU AFTER INVESTIGATION OF YOUR CAPABILITIES. ALTHOUGH IN THE CASE OF A FORMALLY ADVERTISED PROCUREMENT IT IS USUALLY NECESSARY TO INVESTIGATE ONLY THE CAPABILITIES OF THE LOWEST RESPONSIVE BIDDER, THERE COULD BE NO REASONABLE OBJECTION, IN THE CASE OF A PROPOSED NEGOTIATED PROCUREMENT INVOLVING SERVICES OF A SPECIALIZED NATURE, TO AN INVESTIGATION OF THE CAPABILITIES OF ALL OFFERORS IN A COMPETITIVE PRICE RANGE FOR THE PURPOSE OF DETERMINING WHICH OFFEROR IS THE BEST QUALIFIED TO PERFORM THE PROPOSED CONTRACT. ALSO, THE TECHNICAL FEATURES OF THE THREE PROPOSALS WERE REQUIRED TO BE CONSIDERED IN CONNECTION WITH THE SELECTION OF ANY FIRM FOR CONTRACT NEGOTIATIONS. SEE, GENERALLY, THE PROVISIONS OF SECTION 1 3.805-1, FEDERAL PROCUREMENT REGULATIONS.

THE USE OF A POINT RATING SYSTEM IN EVALUATING PERTINENT FACTORS, INCLUDING THE MATTER OF PRICE, IS A RECOGNIZED TECHNIQUE IN THE CONSIDERATION OF PROPOSALS UNDER THE GOVERNMENT'S CONTRACT NEGOTIATION PROCEDURES. ALSO, IT APPEARS THAT THE BUREAU OF LAND MANAGEMENT PROPERLY CONSIDERED THAT THE THREE FIRMS WHOSE CAPABILITIES APPARENTLY MET THE GOVERNMENT'S MINIMUM REQUIREMENTS WOULD BE IN A BETTER POSITION TO SUBMIT MORE ACCURATE AND REALISTIC PROPOSALS IF THEY WERE INFORMED OF THE RELATIVE IMPORTANCE ATTACHED TO EACH EVALUATION FACTOR. WE HAVE EXAMINED THE STATED EVALUATION FACTORS AND THE POINT RATINGS ASSIGNED TO SUCH FACTORS AND FIND NO BASIS FOR CONCLUDING THAT THE SPECIFIED RATING SYSTEM WAS INADEQUATE OR UNREASONABLE IN ANY RESPECT.

IT HAS CONSISTENTLY BEEN THE POSITION OF OUR OFFICE THAT THE RESPONSIBILITY FOR THE EVALUATION OF PROPOSALS RESTS WITH THE CONTRACTING AGENCY WHOSE DETERMINATION MUST GOVERN IN THE ABSENCE OF A CLEAR SHOWING OF IMPROPRIETY OR GROSS ERROR. WE FIND THAT THE METHODS EMPLOYED BY THE BUREAU OF LAND MANAGEMENT IN NEGOTIATING A CONTRACT WITH STERLING MOVIES U.S.A; WERE NOT IMPROPER. ACCORDINGLY, YOUR PROTEST-IN THE MATTER IS DENIED.