Protest of Exclusion From Competitive Range

A firm protested the award of an Army contract for the Quick Look II system. The request for proposals (RFP) called for a fully militarized airborne emitter location-identification system with highly specialized items. The protest against rejection of the protester's proposal was considered timely filed, even though the specific complaints about the Army's evaluation were received later. The protester initially protested its exclusion from the competitive range. The protester also contended that the evaluation criteria relating to experience were construed so narrowly as to preclude offerers who had not previously participated in the development or initial production contracts for the Quick Look II system. Competitive range determinations necessarily involve the exercise of a considerable range of administrative discretion. The RFP did call for experience information found lacking in the protester's proposal. Agencies are not prohibited from making assessments of responsibility-related factors in determining competitive range without regard to certificate of competency procedure. Rejection of the protester's proposal from the competitive range cannot be regarded as tantamount to nonresponsibility. Furthermore, the mere fact that the offerer is in the competitive range does not necessarily ensure award to the offerer given negotiating opportunities afforded all competitive offerers and the flexibility inherent in the negotiation method. Because of observations that raised serious questions about the propriety of the use of a priority designator as a substitute for facts justifying the use of public exigency negotiating authority, regulatory change was recommended. If change is not made by the start of fiscal year 1980, the Secretary of Defense was informed that in the future, Determination and Findings subject to protests will be held invalid. The Army's failure to give the required preaward notice was a procedural defect but did not affect the validity of award. The protest was denied.