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A DETERMINATION OF WHAT CONSTITUTES A "COMPETITIVE RANGE" IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION AND IN VIEW OF THE LOW POINT RATING RECEIVED BY PROTESTANT AFTER EVALUATION AND THE RESULTS OF AN INDEPENDENT GAO ANALYSIS WHICH SUPPORTS THE SOURCE SELECTION EVALUATION BOARD INTERPRETATION THAT PROTESTANT WAS OFFERING AN UNACCEPTABLE STRAIGHT- TAPERED CONFIGURATION SAIL ROTOR BLADE DESIGN. THERE IS NO LEGAL BASIS TO DISAGREE WITH THE DETERMINATION OF THE PROCURING ACTIVITY THAT THE PROPOSAL WAS OUTSIDE THE COMPETITIVE RANGE. ALTHOUGH PROTESTANT WAS NOT ACCORDED THE TREATMENT CONTEMPLATED BY ASPR 3-508.2. THE NOTICE REQUIREMENT CONTAINED THEREIN IS PROCEDURAL AND DOES NOT GO TO THE SUBSTANCE OF THE AWARD.

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B-171305, JUN 8, 1971

BID PROTEST - COMPETITIVE RANGE - NOTICE OF UNACCEPTABILITY DECISION DENYING PROTEST AGAINST THE AWARD OF A CONTRACT TO NIELSEN ENGINEERING & RESEARCH, INC., UNDER AN RFQ ISSUED BY THE ARMY SAFEGUARD SYSTEM COMMAND, HUNTSVILLE, ALA., FOR LABOR, EQUIPMENT, FACILITIES, AND SUPPLIES FOR A "HIGH ALTITUDE PLATFORM STUDY." A DETERMINATION OF WHAT CONSTITUTES A "COMPETITIVE RANGE" IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION AND IN VIEW OF THE LOW POINT RATING RECEIVED BY PROTESTANT AFTER EVALUATION AND THE RESULTS OF AN INDEPENDENT GAO ANALYSIS WHICH SUPPORTS THE SOURCE SELECTION EVALUATION BOARD INTERPRETATION THAT PROTESTANT WAS OFFERING AN UNACCEPTABLE STRAIGHT- TAPERED CONFIGURATION SAIL ROTOR BLADE DESIGN, THERE IS NO LEGAL BASIS TO DISAGREE WITH THE DETERMINATION OF THE PROCURING ACTIVITY THAT THE PROPOSAL WAS OUTSIDE THE COMPETITIVE RANGE. FURTHER, ALTHOUGH PROTESTANT WAS NOT ACCORDED THE TREATMENT CONTEMPLATED BY ASPR 3-508.2, THE NOTICE REQUIREMENT CONTAINED THEREIN IS PROCEDURAL AND DOES NOT GO TO THE SUBSTANCE OF THE AWARD.

TO MR. LEWIS FELDMAN:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 5, 1971, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER REQUEST FOR QUOTATIONS (RFQ) NO. DAHC60-70-Q-0180, ISSUED BY THE UNITED STATES ARMY SAFEGUARD SYSTEM COMMAND, HUNTSVILLE, ALABAMA.

THE RFQ, ISSUED ON APRIL 20, 1970, SOLICITED OFFERS FOR ALL NECESSARY LABOR, EQUIPMENT, FACILITIES AND SUPPLIES FOR A "HIGH ALTITUDE PLATFORM STUDY" IN ACCORD WITH SCOPE OF WORK SW-A-49-70, DATED DECEMBER 15, 1969. THE OBJECTIVE OF THE HIGH ALTITUDE PLATFORM STUDY WAS STATED IN SECTION 2 OF THE SCOPE OF WORK AS FOLLOWS:

"THE OBJECTIVE OF THIS STUDY IS TO INITIATE THE DEVELOPMENT PHASE OF A CONCEPTUAL DESIGN AND TEST PROGRAM OF THAT HIGH ALTITUDE PLATFORM CONCEPT MOST SUITED FOR USE IN AN EARLY WARNING BALLISTIC MISSILE DEFENSE SYSTEM. THIS INITIAL STUDY WILL EXPAND THE ANALYTICAL TOOLS AND DEVELOP EXPERIMENTAL DATA CRITICAL TO A FEASIBILITY DEMONSTRATION."

OFFERORS WERE ADVISED IN SECTION 1A (EVALUATION FOR AWARD) OF THE SCHEDULE THAT -

"AWARD WILL BE MADE TO THE FIRM SUBMITTING THE QUOTATION IN THE GOVERNMENT'S BEST INTEREST - TECHNICAL, COST, AND OTHER FACTORS CONSIDERED. OF ALL SELECTION CRITERIA FOR AWARD, TECHNICAL CONSIDERATIONS ARE OF MAJOR IMPORTANCE."

SEVEN FIRMS SUBMITTED PROPOSALS BY THE CLOSING DATE OF MAY 20, 1970.

IN RESPONSE TO THE RFQ, YOU SUBMITTED A PROPOSAL DESCRIBING YOUR APPROACH TO MEET THE PROCUREMENT REQUIREMENTS. AFTER EVALUATION BY A SOURCE SELECTION EVALUATION BOARD (SSEB), YOUR PROPOSAL, AS CLARIFIED, WAS DETERMINED TO BE TECHNICALLY INADEQUATE AND NOT WITHIN THE COMPETITIVE RANGE. AWARD OF THE CONTRACT WAS MADE TO NIELSEN ENGINEERING & RESEARCH, INC., ON OCTOBER 1, 1970.

THE PRIME BASIS OF YOUR PROTEST IS THAT D&A WAS IMPROPERLY EXCLUDED FROM CONSIDERATION BECAUSE OF TECHNICAL UNACCEPTABILITY. IN THIS RESPECT, THE REPORT OF THE PROCURING ACTIVITY, A COPY OF WHICH WAS FURNISHED TO YOU, INDICATES THAT THE EVALUATION CRITERIA WERE EQUALLY APPLIED TO ALL PROPOSALS. THE THREE AREAS FOR EVALUATION, TOGETHER WITH THE PERCENTAGE OF TOTAL WEIGHT FACTORS, WERE: GENERAL QUALITY, 15 PERCENT; ORGANIZATION, PERSONNEL AND FACILITIES, 15 PERCENT; AND TECHNICAL APPROACH, 70 PERCENT. PROPOSALS WERE SCORED INITIALLY BY THE SSEB ON JULY 7, 1970. THE SCORES WERE 88 FOR TELEDYNE RYAN AERONAUTICAL AND 87 FOR NEILSEN. BOTH OF THESE PROPOSALS WERE DETERMINED TO BE WITHIN THE COMPETITIVE RANGE. YOUR PROPOSAL WAS SCORED 64 AND IT WAS UNDETERMINED AT THAT TIME WHETHER IT COULD BE REGARDED AS WITHIN THE COMPETITIVE RANGE. THUS, ADDITIONAL INFORMATION REGARDING THE PROPOSAL WAS REQUESTED FROM D&A. ADDITIONAL INFORMATION WAS ALSO REQUESTED FROM TELEDYNE AND NIELSEN ON THEIR PROPOSALS.

AFTER EVALUATION OF THE ADDITIONAL INFORMATION SUBMITTED BY ALL THREE OFFERORS, SSEB, ON AUGUST 7, 1970, DETERMINED THE EVALUATION SCORES TO BE 85 FOR TELEDYNE, 84 FOR NIELSEN AND 56 FOR YOUR COMPANY. SSEB DETERMINED AT THAT TIME THAT YOUR PROPOSAL WAS NOT WITHIN THE COMPETITIVE RANGE. FURTHER NEGOTIATIONS WERE RESTRICTED TO TELEDYNE AND NIELSEN.

IN REGARD TO THE TECHNICAL UNACCEPTABILITY OF YOUR PROPOSAL, THE PROCURING ACTIVITY DETERMINED THAT THE PROPOSAL SET FORTH AN UNACCEPTABLE "STRAIGHT TAPERED ROTOR CONFIGURATION," AND THAT THE CONCEPT OF MAINTAINING HIGH ANGLE-OF-ATTACK TO AVOID LUFFING HAD A LOW PROBABILITY OF SUCCESS. THESE AND OTHER TECHNICAL FACTORS RENDERED YOUR PROPOSAL UNACCEPTABLE TO THE PROCURING ACTIVITY.

HOWEVER, YOU CONTEND THAT SSEB INTERPRETED YOUR PROPOSAL INCORRECTLY. YOUR REQUEST, WE HAD AN ENGINEER ON OUR STAFF KNOWLEDGEABLE IN THIS AREA REVIEW THE SSEB TECHNICAL ANALYSIS OF THE PROPOSAL. THIS REVIEW AND EVALUATION IS AS FOLLOWS:

"WHILE THERE ARE SEVERAL AREAS OF TECHNICAL DISAGREEMENT INVOLVED IN THE PROTEST, THE MOST OBVIOUS DEALS WITH DESIGN CHARACTERISTICS OF SAIL ROTOR BLADES. THE SSEB MAINTAINS THAT D&A PROPOSED A BLADE DESIGN WHICH REQUIRES NO-CHORDWISE-TENSION (STRAIGHT-TAPERED CONFIGURATION). D&A CLAIMS THAT THEIRS IS NOT NECESSARILY A STRAIGHT-TAPERED BLADE, BUT THAT THE FINAL BLADE DESIGN WILL DEPEND ON THEIR RESEARCH EFFORT.

"BASED ON MY EXAMINATION OF THE D&A PROPOSAL, I BELIEVE THAT A STRAIGHT- TAPERED ROTOR BLADE WAS OFFERED. I SUPPORT THE SSEB'S POSITION CONCERNING THIS AREA OF TECHNICAL DISAGREEMENT FOR THE FOLLOWING REASONS:

"1. THE D&A PROPOSAL REFERS TO A SAIL ROTOR DESIGN CONCEPT WHICH REQUIRES NO-CHORDWISE-TENSION. THIS NO-CHORDWISE-TENSION CRITERIA, FOR PRACTICAL PURPOSES, DEFINES THE BLADE DESIGN TO BE OF THE STRAIGHT TAPERED CONFIGURATION.

"2. THE ENGINEERING CONCEPT LAYOUT (DRAWING #D/L05-70) WHICH IS REFERENCED FREQUENTLY IN THE PROPOSAL, INDICATES DETAILED DEPLOYMENT SCHEMATICS WHICH ARE APPLICABLE ONLY TO STRAIGHT-TAPERED SAIL ROTOR BLADES.

"3. THE SKETCH OF THE TEST MODEL SHOWS ONLY THE STRAIGHT-TAPERED SAIL ROTOR DESIGN, AND THE MODEL TEST SCHEDULE DOES NOT INDICATE THAT VARIATIONS IN SAIL ROTOR CONFIGUATIONS WERE PROPOSED.

"4. ALTHOUGH APPENDIX A OF THE D&A PROPOSAL DEALS WITH THEORIES OF BLADE DESIGN, THE PREPONDERANCE OF INFORMATION OFFERED REFERS TO THE STRAIGHT- TAPERED SAIL ROTOR CONFIGURATION."

THE FOREGOING LENDS ADDITIONAL SUPPORT TO THE ENTINEERING JUDGMENT OF THE PROCURING ACTIVITY IN ITS TECHNICAL ANALYSIS OF YOUR PROPOSAL.

IN DECISION B-169671(1), AUGUST 31, 1970, WE HELD:

"BOTH 10 U.S.C. 2304(G) AND PARAGRAPH 3-805.1(A) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) GENERALLY REQUIRE DISCUSSIONS WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED. WE HAVE HELD THAT THE TERM 'OTHER FACTORS' INCLUDES THE TECHNICAL ACCEPTABILITY OF PROPOSALS, 46 COMP. GEN. 606 (1967), AND WE HAVE ALSO HELD THAT A DETERMINATION OF WHAT CONSTITUTES A 'COMPETITIVE RANGE,' PARTICULARLY WITH RESPECT TO THE EVALUATION OF TECHNICAL PROPOSALS, IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION

IN VIEW OF THE POINT RATING RECEIVED BY YOUR FIRM AFTER EVALUATION OF THE CLARIFICATION REQUESTED FROM YOU AND THE RESULTS OF OUR INDEPENDENT ANALYSIS WHICH SUPPORT THE SSEB INTERPRETATION OF YOUR PROPOSAL, WE FIND NO LEGAL BASIS TO DISAGREE WITH THE DETERMINATION OF THE PROCURING ACTIVITY THAT THE PROPOSAL WAS TECHNICALLY UNACCEPTABLE. SEE 46 COMP. GEN. 606 (1967); B-170317, FEBRUARY 2, 1971.

YOU ALSO PROTEST THAT THE PROCUREMENT CONTAINED UNDULY RESTRICTIVE SPECIFICATIONS AS TO GROUND TESTS, AND THAT THE GOVERNMENT IMPROPERLY MADE GOVERNMENT (NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA)) TESTING FACILITIES AVAILABLE TO THE SUCCESSFUL OFFEROR. ESSENTIALLY, YOU CONTEND THAT BECAUSE YOU WERE NOT GIVEN PERMISSION BY NASA TO USE A TEST FACILITY, YOUR GROUND TEST PROGRAM WAS FOUND TO BE TECHNICALLY INADEQUATE BY THE PROCURING ACTIVITY.

IN THIS REGARD, THE RFQ SCOPE OF WORK REQUIRED IN SECTION 3.3 (TASK III - GROUND TESTS) THAT:

"THE CONTRACTOR SHALL DEVISE AND PERFORM GROUND TESTS TO VERIFY THE CONCEPT FEASIBILITY. THESE TESTS WILL BE PROPERLY INSTRUMENTED TO PROVIDE BASIC PERFORMANCE DATA NOT CURRENTLY AVAILABLE. THE GROUND TESTS WILL BE DESIGNED TO GIVE AN INSIGHT TO ANY TECHNICAL PROBLEMS OR LIMITATIONS OF THE CONCEPTUAL SCHEME FOR THE HIGH ALTITUDE PLATFORM. WHERE APPLICABLE, SCALE MODEL TESTING WILL BE UTILIZED."

WITH RESPECT TO EVALUATION CRITERIA FOR GROUND TEST IMPLEMENTATION PLANS, CONSIDERATION WAS GIVEN TO THE SELECTED TEST CONDITIONS, INCLUDING DEGREE OF SIMULATION OF ACTUAL MISSION ENVIRONMENTS, TEST FACILITIES, AND TO THE CONTRACTOR'S UNDERSTANDING OF THE RELATIVE IMPORTANCE OF THE VARIOUS TEST PARAMETERS IN RELATION TO THE ANALYTICAL MODEL. IT IS REPORTED THAT D&A'S PROPOSED TEST PLAN WAS CONSIDERED INADEQUATE REGARDLESS OF WHAT TEST FACILITY WAS PROPOSED. THIS AGAIN IS A TECHNICAL AREA, WHEREIN D&A'S PROPOSED TEST PLAN WAS SCORED SEPARATELY FROM THE ADEQUACY OF TEST FACILITIES DURING THE SSEB EVALUATION AND FOUND INADEQUATE.

WHILE YOU CONTEND THAT IF NASA HAD ALLOWED D&A USE OF ITS FACILITIES, YOUR GROUND TEST WOULD HAVE BEEN ACCEPTABLE, NOTHING IN THE RFQ REQUIRED USE OF ANY SPECIFIC GOVERNMENT OR PRIVATE INDUSTRY TEST FACILITY. MOREOVER, OFFERORS WERE EXPECTED TO MAKE THEIR OWN ARRANGEMENTS FOR TESTING FACILITIES. IN THIS RESPECT, PARAGRAPH 17 OF THE RFQ PROVIDED THAT:

"A. IT IS THE POLICY OF THE DEPARTMENT OF DEFENSE TO PUT GOVERNMENT PRODUCTION AND RESEARCH PROPERTY WHICH IS IN THE POSSESSION OF A CONTRACTOR OR SUBCONTRACTOR TO THE GREATEST POSSIBLE USE IN THE PERFORMANCE OF GOVERNMENT CONTRACTS OR SUBCONTRACTS, SO LONG AS SUCH USE DOES NOT CONFER A COMPETITIVE ADVANTAGE ON THE CONTRACTOR OR SUBCONTRACT. THEREFORE, A QUOTER PROPOSING TO USE GOVERNMENT OWNED PRODUCTION AND RESEARCH PROPERTY IN PERFORMANCE OF THIS REQUIREMENT SHALL SUBMIT WITH ITS QUOTE THE FOLLOWING:

"(1) A LIST OR DESCRIPTION OF ALL GOVERNMENT PRODUCTION AND RESEARCH PROPERTY WHICH THE QUOTER OR HIS ANTICIPATED SUBCONTRACTORS PROPOSE TO USE ON A RENT-FREE BASIS;

"(2) IDENTIFICATION OF THE FACILITIES CONTRACT OR OTHER INSTRUMENT UNDER WHICH THE PROPERTY IS HELD, AND THE WRITTEN PERMISSION OF THE CONTRACTING OFFICER HAVING COGNIZANCE OF THE PROPERTY FOR USE OF THAT PROPERTY;

(3) THE MONTHS DURING WHICH SUCH PROPERTY WILL BE AVAILABLE FOR USE, WHICH SHALL INCLUDE THE FIRST, LAST, AND ALL INTERVENING MONTHS, AND WITH RESPECT TO ANY SUCH PROPERTY WHICH WILL BE USED CONCURRENTLY IN PERFORMANCE OF TWO OR MORE CONTRACTS, THE AMOUNTS OF THE RESPECTIVE USES IN SUFFICIENT DETAIL TO SUPPORT THE PRORATION REQUIRED BY ASPR 13 502.3(B) AND

"(4) THE AMOUNT OF RENT WHICH WOULD OTHERWISE BE CHARGED FOR SUCH USE, COMPUTED IN ACCORDANCE WITH ASPR 13-404 AND ASPR 7-202.12.

"B. THE GOVERNMENT SHALL NOT FURNISH ANY PROPERTY TO THE SUCCESSFUL QUOTER NOT PRESENTLY IN THE POSSESSION OF THE QUOTER OR HIS SUBCONTRACTOR EXCEPT AS CITED ELSEWHERE HEREIN."

WHILE WE HAVE SOME DOUBT THAT NIELSEN'S PROPOSED USE OF NASA FACILITIES WAS WITHIN THE PURVIEW OF PARAGRAPH 17, NO PREJUDICE RESULTED TO YOUR COMPETITIVE POSTURE IN VIEW OF THE TECHNICAL UNACCEPTABILITY OF THE PROPOSAL. IN OTHER WORDS, EVEN IF YOU HAD SECURED PERMISSION TO USE NASA TEST FACILITIES, THE PROPOSAL WOULD STILL HAVE BEEN REJECTED BECAUSE OF TECHNICAL INADEQUACIES.

CONCERNING THE CONTENTION THAT YOU WERE NOT NOTIFIED PRIOR TO THE AWARD OF THE CONTRACT TO NIELSEN ON OCTOBER 1, 1970, OF THE UNACCEPTABILITY OF THE PROPOSAL AS REQUIRED BY PARAGRAPH 3-508.2 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), THE POSITION OF THE PROCURING ACTIVITY IS THAT THE CONTRACTING OFFICER NEED NOT MAKE FINAL DETERMINATION THAT A PROPOSAL IS UNACCEPTABLE UNTIL AFTER A BOARD OF AWARDS HAS MET, WHICH, IN THIS CASE, WAS SEPTEMBER 25, 1970, A FEW DAYS PRIOR TO AWARD. WE DO NOT AGREE WITH THIS POSITION. ASPR 3-508.2 PROVIDES AS FOLLOWS:

"(A) IN ANY PROCUREMENT IN EXCESS OF $10,000 IN WHICH IT APPEARS THAT THE PERIOD OF EVALUATION OF PROPOSALS IS LIKELY TO EXCEED 30 DAYS OR IN WHICH A LIMITED NUMBER OF SUPPLIERS HAVE BEEN SELECTED FOR ADDITIONAL NEGOTIATION (SEE 3-805.1), THE CONTRACTING OFFICER, UPON DETERMINATION THAT A PROPOSAL IS UNACCEPTABLE, SHALL PROVIDE PROMPT NOTICE OF THAT FACT TO THE SOURCE SUBMITTING THE PROPOSAL. SUCH NOTICE NEED NOT BE GIVEN WHERE THE PROPOSED CONTRACT IS TO BE AWARDED WITHIN A FEW DAYS AND NOTICE PURSUANT TO 3-508.3 BELOW WOULD SUFFICE. IN ADDITION TO STATING THAT THE PROPOSAL HAS BEEN DETERMINED UNACCEPTABLE, NOTICE TO THE OFFEROR SHALL INDICATE, IN GENERAL TERMS, THE BASIS FOR SUCH DETERMINATION AND SHALL ADVISE THAT, SINCE FURTHER NEGOTIATION WITH HIM CONCERNING THIS PROCUREMENT IS NOT CONTEMPLATED, A REVISION OF HIS PROPOSAL WILL NOT BE CONSIDERED."

THE RECORD SUBMITTED HERE INDICATES THAT YOUR PROPOSAL WAS EVALUATED AS UNACCEPTABLE AND OUTSIDE THE COMPETITIVE RANGE ON AUGUST 7, 1970, AND THAT THE CONTRACTS OFFICE WAS DIRECTED TO NEGOTIATE WITH NIELSEN AND TELEDYNE ON AUGUST 13, 1970. ALTHOUGH THE BOARD OF AWARDS DID NOT REVIEW THE PROPOSED AWARD TO NIELSEN UNTIL SEPTEMBER 25, 1970, THE FACT REMAINS THAT YOUR COMPANY HAD BEEN DETERMINED TO BE UNACCEPTABLE MORE THAN A MONTH PRIOR TO THAT DATE. THEREFORE, THE NOTIFICATION OF UNACCEPTABILITY SHOULD HAVE BEEN GIVEN MORE PROMPTLY.

IT IS REGRETTABLE THAT YOUR FIRM WAS NOT ACCORDED THE TREATMENT CONTEMPLATED BY THE PROCUREMENT REGULATIONS; HOWEVER, SINCE THIS NOTICE REQUIREMENT OF ASPR IS PROCEDURAL IN NATURE AND DOES NOT GO TO THE ESSENCE OF THE AWARD, THERE IS NO LEGAL BASIS FOR DISTURBING THE AWARD MADE. COMP. GEN. 373, 377 (1968); B-168190(1), FEBRUARY 24, 1970.

ACCORDINGLY, THE PROTEST IS DENIED.

PURSUANT TO YOUR RECENT INFORMAL REQUEST, THERE IS ENCLOSED A COPY OF THE DEPARTMENT OF THE ARMY REPORT OF MARCH 24, 1971.

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