B-182801, MAR 21, 1975, 54 COMP GEN 783

B-182801, MAR 21, 1975, 54 COMP GEN 783

CONTRACTS - PROTESTS - ABEYANCE PENDING PROTESTER'S APPEAL TO AGENCY - EXCEPTION NOTWITHSTANDING PROTESTER'S APPEAL TO AGENCY UNDER FREEDOM OF INFORMATION ACT, 5 U.S.C. 552 ET SEQ., FOR FURTHER DOCUMENTATION RELATIVE TO MERITS OF ITS PROTEST, GENERAL ACCOUNTING OFFICE WILL NOT REFRAIN FROM ISSUING DECISION PENDING APPEAL, WHERE RECORD SHOWS THAT FURTHER DELAY IN ISSUING DECISION COULD HARM AGENCY PROCUREMENT PROCESS AND PROTESTER ALREADY HAS RECEIVED SUBSTANTIAL PORTION OF AGENCY DOCUMENTS. CONTRACTS - NEGOTIATION - EVALUATION FACTORS - FACTORS OTHER THAN PRICE - GREATEST VALUE TO GOVERNMENT UNSUCCESSFUL OFFEROR'S PROTEST BASED ON GROUND THAT IT SHOULD HAVE BEEN SELECTED FOR AWARD OF COST-TYPE CONTRACT BECAUSE IT PROPOSED THE LOWEST COST IS DENIED SINCE AGENCY REASONABLY DETERMINED THAT TECHNICALLY SUPERIOR OFFER WAS MOST ADVANTAGEOUS TO GOVERNMENT. CONTRACTS - NEGOTIATION - OFFERS AND PROPOSALS - BEST AND FINAL - ADDITIONAL ROUND PROTEST THAT NO AWARD CAN BE MADE UNDER REQUEST FOR PROPOSALS (ISSUED BY NASA'S LANGLEY RESEARCH CENTER FOR SUPPORT SERVICES ON A COST-PLUS AWARD- FEE BASIS) BECAUSE ALL PROPOSALS EXPIRED 120 DAYS AFTER THE DATE OF SUBMISSION OF ORIGINAL PROPOSALS, WHILE AGENCY CONCLUDES THAT PROPOSALS EXPIRE 120 DAYS AFTER RECEIPT OF BEST AND FINAL OFFERS, NEED NOT BE DECIDED SINCE ALL OFFERORS, INCLUDING PROTESTER, SUBSEQUENTLY REVIVED OFFERS EVEN IF THEY HAD EXPIRED. CONTRACTS - NEGOTIATION - EVALUATION FACTORS - ADMINISTRATIVE DETERMINATION PROTEST BY UNSUCCESSFUL OFFEROR THAT ITS PROPOSAL WAS UNFAIRLY EVALUATED IS NOT SUBSTANTIATED WHERE RECORD SHOWS THERE WAS NO ARBITRARY ABUSE OF DISCRETION, OR VIOLATION OF REGULATION OR STATUTE BY AGENCY. DETERMINATION OF RELATIVE DESIRABILITY AND TECHNICAL ADEQUACY OF PROPOSALS IS PRIMARILY FUNCTION OF AGENCY WHICH ENJOYS A REASONABLE RANGE OF DISCRETION IN EVALUATION AND IN DETERMINATION OF WHICH PROPOSAL IS TO BE ACCEPTED FOR AWARD AS IN THE BEST INTEREST OF THE GOVERNMENT. CONTRACTS - NEGOTIATION - EVALUATION FACTORS - POINT RATING - PROPRIETY OF EVALUATION PROTESTER'S ALLEGATION OF AN INCONSISTENCY BETWEEN TECHNICAL POINT SCORE AND NARRATIVE PORTION OF SELECTION STATEMENT IS AMPLY JUSTIFIED IN LIGHT OF THE ASSIGNED TECHNICAL POINT RATINGS.

IN THE MATTER OF RIGGINS & WILLIAMSON MACHINE COMPANY, INC.; ENSEC SERVICE CORPORATION, MARCH 21, 1975:

REQUEST FOR PROPOSALS (RFP) 1-15-4557, INVOLVING SUPPORT SERVICES NECESSARY TO MAINTAIN CERTAIN FACILITIES AT NASA'S LANGLEY RESEARCH CENTER (LARC), ON A COST-PLUS-AWARD-FEE BASIS, WAS ISSUED JUNE 10, 1974, BY LARC, HAMPTON, VIRGINIA. THE RFP, COVERING A 1 YEAR PERIOD OF PERFORMANCE WITH TWO 1-YEAR PRICED OPTIONS, ENVISIONS A CONTRACTOR WHO WILL FURNISH THE MANPOWER, TOOLS, EQUIPMENT AND ADMINISTRATIVE SUPPORT NECESSARY TO MANAGE AND IMPLEMENT WORK TASKS IN THE AREAS OF REFRIGERATION AND AIR CONDITIONING MAINTENANCE, ELECTRICAL SYSTEM MAINTENANCE, EQUIPMENT MAINTENANCE, BUILDING TRADES MAINTENANCE, AND ENGINEERING SERVICES. THE SUBJECT RFP COVERS EXPANDED SERVICES PRESENTLY BEING PARTIALLY ACCOMPLISHED UNDER TWO SEPARATE CONTRACTS BETWEEN NASA AND RIGGINS & WILLIAMSON MACHINE COMPANY, INC. (R&W). IT IS REPORTED THAT THE SCOPE OF THE WORK UNDER THE SUBJECT PROCUREMENT WILL BE GREATLY EXPANDED OVER THE PRIOR CONTRACTS AS THE NEW CONTRACTOR WILL ASSUME FROM THE GOVERNMENT THE BULK OF THE PLANNING, SCHEDULING AND ESTIMATING OF TASKS.

FOLLOWING THE RECEIPT OF 13 PROPOSALS ON JULY 25, 1974, SEVEN FIRMS WERE DETERMINED NOT TO BE IN THE COMPETITIVE RANGE. ON SEPTEMBER 9 AND 10, 1974, ORAL DISCUSSIONS WERE CONDUCTED WITH THE SIX REMAINING FIRMS. FOLLOWING THE DISCUSSIONS, NASA'S TECHNICAL/MANAGEMENT, COST AND OTHER FACTORS EVALUATION COMMITTEE (TECHNICAL/MANAGEMENT COMMITTEE) REEVALUATED THE PROPOSALS AND PRESENTED ITS FINDINGS TO NASA'S SOURCE EVALUATION BOARD (SEB), WHICH FOLLOWING ITS OWN EVALUATION, PRESENTED THEIR FINDINGS TO THE SOURCE SELECTION OFFICIAL. IN A SOURCE SELECTION STATEMENT DATED NOVEMBER 8, 1974, THE SOURCE SELECTION OFFICIAL ANNOUNCED THAT METRO CONTRACT SERVICES, INC. (METRO) HAD BEEN SELECTED FOR PURPOSES OF CONTRACT NEGOTIATION.

SUBSEQUENTLY, R&W AND ENSEC SERVICE CORPORATION (ENSEC) PROTESTED THE SELECTION OF METRO FOR A NUMBER OF REASONS. DURING THE PERIOD OF TIME BETWEEN SUBMISSION OF R&W'S INITIAL LETTER OF PROTEST AND ITS COMMENTS ON THE NASA ADMINISTRATIVE REPORT, R&W HAS BEEN SEEKING RELEASE OF CERTAIN DOCUMENTS PURSUANT TO THE FREEDOM OF INFORMATION ACT, 5 U.S.C. 552 ET SEQ. AND NASA'S IMPLEMENTING REGULATIONS, 14 C.F.R. 1206 ET SEQ. (1974). WHILE R&W HAS BEEN SUCCESSFUL IN OBTAINING SOME OF THE DESIRED DOCUMENTS, WE ARE AWARE THAT NASA DOES NOT INTEND TO RELEASE THE OTHER DESIRED DOCUMENTS (SUCH AS METRO'S PROPOSAL). IN ADDITION TO ITS REQUEST TO NASA FOR FURTHER DOCUMENTS, R&W SOUGHT A COURT INJUNCTION AGAINST ANY AWARD BY NASA WHILE ITS CASES WERE PENDING BEFORE THIS OFFICE AND THE SMALL BUSINESS ADMINISTRATION (SBA). WHILE A REQUEST FOR RECONSIDERATION OF AN ADVERSE DECISION (OVER A MATTER NOT BEFORE THIS OFFICE) WAS PENDING BEFORE THE SBA, R&W AND NASA, WITH COURT APPROVAL, ENTERED INTO A STIPULATION WHEREBY THE PROTESTER WOULD WITHDRAW ITS APPLICATION FOR INJUNCTIVE RELIEF AND NASA WOULD REFRAIN FROM ANY AWARD PRIOR TO THIS OFFICE RENDERING ITS DECISION.

BY LETTER OF FEBRUARY 21, 1975, COUNSEL FOR R&W HAS FILED ITS COMMENTS ON THE NASA ADMINISTRATIVE REPORT AND ALSO REQUESTED THAT THIS OFFICE REFRAIN FROM ISSUING A DECISION PRIOR TO ITS APPEAL TO NASA FOR FURTHER DOCUMENTS CONTAINED IN THE ADMINISTRATIVE REPORT. IN THIS CONNECTION, THE PROTESTER CONTENDS IT HAS BEEN AT A DISADVANTAGE WITHOUT ACCESS TO THE ENTIRE ADMINISTRATIVE REPORT. AFTER A CAREFUL BALANCING OF ANY POSSIBLE DISADVANTAGES TO THE PROTESTER AGAINST A FURTHER DELAY TO NASA'S PROCUREMENT PLAN, WE DECIDED TO PROCEED WITH OUR DECISION PROCESS. OUR CONSIDERATIONS IN THIS REGARD HAVE TAKEN INTO ACCOUNT THE FACT THAT R&W HAS TWICE REQUESTED AND BEEN DENIED THE FURTHER INFORMATION, AND THAT ALL INTERESTED PARTIES WERE FURNISHED A SUBSTANTIAL PORTION OF THE ADMINISTRATIVE REPORT. WE ARE OF THE OPINION THAT A DETERMINATION TO DELAY OUR DECISION ANY LONGER WOULD BOTH UNREASONABLY AND UNNECESSARILY HARM AND FURTHER DELAY NASA'S PROCUREMENT PROCESS.

AS ITS BASIS FOR CLAIMING THAT IT SHOULD HAVE BEEN SELECTED FOR AWARD OF THE LARC CONTRACT, R&W CONTENDS IN ESSENCE THAT IT PROPOSED THE LOWEST COST; THAT AS THE INCUMBENT IT SHOULD HAVE RECEIVED A BETTER EVALUATION; THAT ALL OFFERS EXPIRED ON NOVEMBER 22, 1974, AND THEREFORE ARE NOT ELIGIBLE FOR AWARD; THAT ITS PROPOSAL WAS RESPONSIVE AND METRO'S WAS NOT; THAT THE TECHNICAL/MANAGEMENT COMMITTEE FAVORED R&W; AND THAT NASA FAILED TO PROVIDE A FAIR COMPETITIVE EVALUATION OF ITS PROPOSAL AND ARBITRARILY SELECTED METRO FOR AWARD. ENSEC'S SOLE ALLEGATION IS THAT IT BELIEVES THERE IS AN INCONSISTENCY BETWEEN THE FINAL TECHNICAL POINT SCORES AND THE NARRATIVE PORTION OF THE SELECTION STATEMENT. FOR REASONS DISCUSSED BELOW, THE PROTESTS ARE DENIED.

THE PERTINENT PORTIONS OF THE EVALUATION PROCEDURES AND CRITERIA CONTAINED IN THE RFP ARE SET FORTH BELOW:

PART I. GENERAL INFORMATION

D. PROPOSALS RECEIVED AS THE RESULT OF THIS REQUEST FOR PROPOSAL WILL BE EVALUATED UNDER NASA SOURCE EVALUATION BOARD PROCEDURES IN ACCORDANCE WITH NASA SOURCE EVALUATION BOARD MANUAL NHB 5103.6. AS A RESULT, THE TECHNICAL/MANAGEMENT PROPOSAL WILL BE SCORED. THE COST AND OTHER FACTORS PROPOSAL WILL BE EVALUATED BUT NOT SCORED; HOWEVER, THESE COST AND OTHER FACTORS MAY BE IMPORTANT DISCRIMINATORS IN THE FINAL SELECTION, AND THE SOURCE SELECTION OFFICIAL, AFTER EXTENSIVE CONSULTATION WITH THE SOURCE EVALUATION BOARD AND OTHER ADVISORS, WILL SELECT THE CONTRACTOR (OR CONTRACTORS) FOR FINAL NEGOTIATION WHICH HE CONSIDERS CAN PERFORM THE CONTRACT IN A MANNER MOST ADVANTAGEOUS TO THE GOVERNMENT, ALL FACTORS CONSIDERED.

PART III. TECHNICAL/MANAGEMENT PROPOSAL CONTENT

THE EVALUATION FACTORS AND CRITERIA TO BE CONSIDERED FOR YOUR PROPOSAL ARE PRESENTED HEREIN. EACH FACTOR WILL BE ASSIGNED NUMERICAL RATINGS AND WEIGHTS. EACH FACTOR WILL BE ASSESSED USING THE DESIGNATED CRITERIA TO DETERMINE HIS UNDERSTANDING OF THE REQUIREMENTS AS REFLECTED THEREIN AND HIS APPROACH TO IMPLEMENTING THE REQUIREMENTS. IN THIS REGARD, THE MANAGEMENT AND OPERATIONS PLAN AND THE MANAGEMENT ENGINEERING PERSONNEL WILL BE CONSIDERED OF APPROXIMATELY EQUAL IMPORTANCE.

FACTOR 1.0 MANAGEMENT AND OPERATIONS PLAN

THIS PLAN SHOULD DESCRIBE FROM AN ADMINISTRATIVE AND TECHNICAL STANDPOINT HOW YOU INTEND TO BRING THE OVERALL SERVICE TO A COMPETENT, EFFICIENT OPERATIONAL STATUS AND THE MANNER AND MEANS BY WHICH THE OVERALL SERVICE, ONCE ESTABLISHED, WILL BE MAINTAINED IN ORDER TO ACCOMPLISH THE OVERALL EFFORT IN SUPPORT OF THE VARIOUS S.O.W. AREAS. THE PLAN SHOULD CONTAIN THE FOLLOWING (THE FIRST FOUR (4) ITEMS ARE OF APPROXIMATELY EQUAL IMPORTANCE AND AS A GROUP CARRY OVER 3/4 OF THE WEIGHT FOR FACTOR 1.0):

FACTOR 2.0 MANAGEMENT AND ENGINEERING PERSONNEL

A. THE POSITIONS CONSIDERED BY THE GOVERNMENT TO BE MANAGEMENT AND ENGINEERING PERSONNEL ARE OUTLINED IN ENCLOSURE 2.

THE QUALIFICATION OF THE MANAGEMENT AND ENGINEERING PERSONNEL WILL BE ASSESSED RELATIVE TO THEIR PROPOSED POSITIONS AND DUTIES AS FOLLOW (THE THREE (3) ITEMS ARE LISTED IN ORDER OF DECREASING IMPORTANCE WITH KEY PERSONNEL CARRYING APPROXIMATELY 2/3 OF THE TOTAL WEIGHT FOR FACTOR 2.0):

PART IV. COST AND OTHER FACTORS PROPOSAL CONTENT AND FORMAT

A. COST PROPOSAL

1. AS STATED IN THE LETTER OF TRANSMITTAL, ENCLOSURE 5, CONTRACT PRICING PROPOSAL, DD FORM 633, (NASA EDITION) SHOULD BE USED TO SUMMARIZE YOUR COST PROPOSAL WITH DETAIL BACKUP TO EXPLAIN THE ESTIMATING BASIS FOR EACH COST ELEMENT PROVIDED IN A SUITABLE FORMAT.

B. OTHER FACTORS

1. OTHER FACTORS WHICH WILL BE EVALUATED AND PRESENTED TO THE SOURCE SELECTION OFFICIAL FOR HIS CONSIDERATION IN MAKING A SELECTION ARE PAST PERFORMANCE, RELATED EXPERIENCE, LABOR RELATIONS, FINANCIAL CAPABILITY, SUPPORT BY CORPORATE MANAGEMENT, CONTRACT TERMS AND CONDITIONS, SAFETY AND HEALTH, AND EQUAL EMPLOYMENT OPPORTUNITY COMPLIANCE.

THE RECORD INDICATES THAT FACTOR 1 (MANAGEMENT AND OPERATIONS PLAN) WAS ASSIGNED 550 POINTS OUT OF A POSSIBLE 1000, WHILE FACTOR 2 (MANAGEMENT AND ENGINEERING PERSONNEL) WAS ASSIGNED THE REMAINING 450 POINTS. INDICATED IN THE RFP, "COST AND OTHER FACTORS" WERE EVALUATED BUT NOT SCORED. THE SOURCE SELECTION STATEMENT NOTED THAT THE SEB GAVE THE OFFERORS WITHIN THE COMPETITIVE RANGE AN ORDER OF PREFERENCE WITH ADJECTIVE RATINGS AND POINTS FOR THE SCORED FACTORS, AS FOLLOWS:

ADJECTIVE

OFFEROR FINAL SCORE RATING

METRO 766 GOOD.

KLATE HOLT 708 GOOD.

ENSEC 689 SATISFACTORY.

RIGGINS AND WILLIAMSON 674 SATISFACTORY.

MERCURY 649 SATISFACTORY.

ASHE 612 SATISFACTORY.

UPON CONSIDERATION OF THE SEB'S EVALUATION, THE SOURCE SELECTION OFFICIAL CONCLUDED ON THE BASIS OF ITS TECHNICAL SUPERIORITY AND ITS REALISTIC COST PROPOSAL THAT METRO'S PROPOSAL REPRESENTED THE GREATEST VALUE TO THE GOVERNMENT.

AS NOTED ABOVE, R&W'S FIRST CONTENTION IS THAT BASED ON ITS LOWEST PROPOSED COST, IT SHOULD HAVE BEEN SELECTED FOR AWARD OF THE SUBJECT CONTRACT. THE SEB REPORT DEPICTED THE FOLLOWING PROPOSED AND PROBABLE 3 YEAR COSTS FOR R&W AND METRO WITH DOLLARS IN MILLIONS:

R&W METRO

PROPOSED ESTIMATED COST 6.4 7.4

GOVERNMENT PROBABLE COST ESTIMATE7.8 8.4

THE RANGE OF PROPOSED COSTS FOR THE OTHER FOUR OFFERORS IN THE COMPETITIVE RANGE WAS $6.9 MILLION TO $7.4 MILLION (WITH AN AVERAGE OF $7.2 MILLION), AND THE RANGE OF PROBABLE COSTS WAS FROM $8.2 TO $8.7 MILLION (WITH AN AVERAGE OF $8.4 MILLION). MOREOVER, IT WAS DETERMINED THAT THE MAJOR REASON FOR THE DIFFERENCE IN SCORE AND COST BETWEEN R&W AND METRO WAS THE PROTESTER'S FAILURE TO PROVIDE A FULL-TIME CONTRACT MANAGER AND SUPPORTING ADMINISTRATIVE AND MANAGEMENT STAFF TO ASSUME THE EXPANDED CONTRACTOR RESPONSIBILITY. WHILE WE NOTE THAT R&W IS CORRECT IN ITS ASSERTION THAT IT PROPOSED A LOWER COST THAN METRO, NASA'S PROCUREMENT REGULATION 3.805-2 STATES:

IN SELECTING THE CONTRACTOR FOR A COST-REIMBURSEMENT TYPE CONTRACT, ESTIMATED COSTS OF CONTRACT PERFORMANCE AND PROPOSED FEES SHOULD NOT BE CONSIDERED AS CONTROLLING, SINCE IN THIS TYPE OF CONTRACT ADVANCE ESTIMATES OF COST MAY NOT PROVIDE VALID INDICATORS OF FINAL ACTUAL COSTS. THERE IS NO REQUIREMENT THAT COST-REIMBURSEMENT TYPE CONTRACTS BE AWARDED ON THE BASIS OF EITHER (I) THE LOWEST PROPOSED COST, (II) THE LOWEST PROPOSED FEE, OR (III) THE LOWEST TOTAL ESTIMATED COST PLUS PROPOSED FEE. THE AWARD OF COST-REIMBURSEMENT TYPE CONTRACTS PRIMARILY ON THE BASIS OF ESTIMATED COSTS ENCOURAGE THE SUBMISSION OF UNREALISTICALLY LOW ESTIMATES AND INCREASE THE LIKELIHOOD OF COST OVERRUNS. THE COST ESTIMATE IS IMPORTANT TO DETERMINE THE PROSPECTIVE CONTRACTOR'S UNDERSTANDING OF THE PROJECT AND ABILITY TO ORGANIZE AND PERFORM THE CONTRACT. THE AGREED FEE MUST BE WITHIN THE LIMITS PRESCRIBED BY LAW *** AND APPROPRIATE TO THE WORK TO BE PERFORMED ***. BEYOND THIS, HOWEVER, THE PRIMARY CONSIDERATION IN DETERMINING TO WHOM THE AWARD SHALL BE MADE IS: WHICH CONTRACTOR CAN PERFORM THE CONTRACT IN A MANNER MOST ADVANTAGEOUS TO THE GOVERNMENT.

ALTHOUGH THE GOVERNMENT'S PROBABLE COST ESTIMATE FOR METRO WAS 8 PERCENT HIGHER THAN THAT FOR R&W, METRO WAS ALSO 14 PERCENT HIGHER THAN R&W IN THE SCORED FACTORS AND, THEREFORE, IT WAS PROPER UNDER THE TERMS OF THE SOLICITATION AND ABOVE REGULATIONS TO SELECT METRO NOTWITHSTANDING THE HIGHER COST ESTIMATE. SEE MATTER OF APPLIED SYSTEMS CORPORATION, B- 181696, OCTOBER 8, 1974.

R&W NEXT CONTENDS THAT THE FACT OF ITS INCUMBENCY AND PRIOR SATISFACTORY PERFORMANCE SHOULD HAVE BEEN GIVEN MORE WEIGHT IN THE EVALUATION. REVIEW OF THE PERTINENT EVALUATION DOCUMENTS INDICATES THAT NASA WAS FULLY COGNIZANT OF R&W'S INCUMBENCY AND CAREFULLY CONSIDERED THIS FACTOR IN ITS EVALUATION PROCESS. THE RFP CLEARLY INDICATED TO ALL OFFERORS THAT PAST PERFORMANCE WAS TO BE CONSIDERED AS BEING AN "OTHER FACTOR" AND THUS WOULD NOT BE SCORED. IN THIS REGARD, WE NOTE R&W RECEIVED THE SAME "SATISFACTORY" RATING AS ALL OFFERORS WITHIN THE COMPETITIVE RANGE. ADDITION, WE NOTE THE FOLLOWING REMARKS CONTAINED IN THE SELECTION STATEMENT.

WHILE THE INCUMBENT CONTRACTOR HAS PERFORMED SATISFACTORILY IN SOME AREAS, TAKEN AS A WHOLE, HIS PERFORMANCE CAN BE EVALUATED TO BE JUST MARGINALLY SATISFACTORY BECAUSE OF LACK OF ADMINISTRATIVE CONTROL AND SUPPORT.

R&W ALSO CONTENDS THAT ALL OFFERS EXPIRED ON NOVEMBER 22, 1974, AND THEREFORE ARE NOT ELIGIBLE FOR AWARD. NASA STRONGLY DISAGREES WITH THE PROTESTER'S VERSION OF WHEN INITIAL OFFERS EXPIRED. BOTH NASA AND R&W AGREE THAT LARC REQUESTED ON JANUARY 9, 1975, AND SUBSEQUENTLY RECEIVED FROM ALL OFFERORS, AN EXTENSION OF PROPOSAL ACCEPTANCE TIME. IN BRIEF, IT IS R&W'S POSITION THAT THE ORIGINAL PROPOSAL ACCEPTANCE PERIOD OF 120 DAYS COMMENCED JULY 25, 1974, THE DATE OF SUBMISSION OF THE ORIGINAL PROPOSALS. THEREFORE, R&W BELIEVES NASA'S EXTENSION REQUEST OF JANUARY 9, 1975, WAS LONG AFTER ALL PROPOSALS EXPIRED. NASA ON THE OTHER HAND, BELIEVES THAT THE 120-DAY PROPOSAL ACCEPTANCE PERIOD BEGAN TO RUN ON SEPTEMBER 23, 1974, THE DATE FOR RECEIPT OF BEST AND FINAL OFFERS. IN 42 COMP. GEN. 604 (1963), WE STATED THAT IN THE PROPER CIRCUMSTANCES THE GOVERNMENT MAY ACCEPT A BID, ONCE EXPIRED, WHICH HAS SUBSEQUENTLY BEEN REVIVED BY THE BIDDER. IN 53 COMP. GEN. 737 (1974), WE RECOGNIZED THAT THE INTENTION OF A BIDDER TO EXTEND THE LIFE OF ITS BID MAY BE INDICATED BY THE BIDDER'S COURSE OF ACTION IN DEALING WITH THE CONTRACTING OFFICER EVEN AFTER EXPIRATION OF THE BID. ADDITIONALLY, WE HAVE TAKEN THE POSITION THAT A PROTEST TO THIS OFFICE DURING A BIDDER'S ACCEPTANCE PERIOD COULD BE VIEWED AS TOLLING THE BID ACCEPTANCE PERIOD PENDING RESOLUTION OF THE PROTEST. 50 COMP. GEN. 357 (1970). ALTHOUGH THOSE DECISIONS INVOLVED ADVERTISED PROCUREMENTS, WE BELIEVE THE SAME RATIONALE IS APPLICABLE HERE. ALSO, IN A NEGOTIATED PROCUREMENT, WE HAVE HELD THAT AN OFFEROR'S PARTICIPATION IN THE NEGOTIATING PROCESS OPERATES TO EXTEND ITS OFFER. MATTER OF DYNALECTRON CORPORATION, 54 COMP. GEN. 562 (1975). THUS, IN THE PRESENT SITUATION, WE THINK THAT EVEN IF ALL PROPOSALS DID EXPIRE ON NOVEMBER 22, 1974, ALL OFFERORS EFFECTIVELY REVIVED THEIR PROPOSALS BY EXPRESS LETTERS TO NASA FOLLOWING THE LARC REQUEST OF JANUARY 9, 1975, AND THAT R&W AND METRO'S OFFERS WERE EXTENDED BY ACTIVE PARTICIPATION IN THE SUBJECT PROTEST. FURTHERMORE, SINCE THE ONLY RIGHT CONFERRED BY EXPIRATION OF THE ACCEPTANCE PERIOD IS CONFERRED UPON THE OFFEROR, THE LATTER MAY WAIVE SUCH RIGHT AND ACCEPT AN AWARD. 46 COMP. GEN. 371 (1966).

R&W HAS ALSO TAKEN THE POSITION THAT ITS "PROPOSAL WAS RESPONSIVE AND THAT OF METRO CONTRACT SERVICES, INC., WAS NOT." NORMALLY, AS IN THE PRESENT CASE, IN NEGOTIATED PROCUREMENTS PROPOSALS ARE NOT REJECTED FOR NONRESPONSIVENESS, AS ARE BIDS IN FORMALLY ADVERTISED PROCUREMENTS. SEE, E.G., MATTER OF HOME AND FAMILY SERVICES, INC., B-182290, DECEMBER 20, 1974. RATHER, PROPOSALS ARE INITIALLY EVALUATED AND, EXCEPT IN CIRCUMSTANCES PERMITTING AWARD ON THE BASIS OF INITIAL EVALUATION, DISCUSSIONS ARE HELD WITH THOSE OFFERORS WHO SUBMITTED PROPOSALS IN A COMPETITIVE RANGE. PROPOSAL REJECTION OCCURS WHEN IT IS DETERMINED THAT A PROPOSAL IS NOT WITHIN THE COMPETITIVE RANGE OR WHEN, AFTER DISCUSSIONS ARE HELD WITH ALL OFFERORS IN THE COMPETITIVE RANGE AND BEST AND FINAL OFFERS ARE SUBMITTED AND EVALUATED, THE PROPOSAL IS NOT SELECTED FOR AWARD. THEREFORE, NEITHER METRO'S PROPOSAL NOR R&W'S PROPOSAL WAS EVER CONSIDERED BY NASA IN TERMS OF RESPONSIVENESS. RATHER, R&W'S PROPOSAL WAS REJECTED AFTER BEST AND FINAL OFFERS WERE SUBMITTED, EVALUATED AND METRO WAS SELECTED FOR AWARD.

BASICALLY, IT IS R&W'S POSITION THAT NASA FAILED TO PROVIDE A FAIR COMPETITIVE EVALUATION OF ITS PROPOSAL AND IMPROPERLY SELECTED FOR AWARD THE PROPOSAL OF METRO. IN THIS CONNECTION, WE ALSO REFER TO R&W'S ASSERTIONS THAT THE TECHNICAL/MANAGEMENT COMMITTEE FAVORED R&W, BUT A CONTRIVED SELECTION STATEMENT WAS INTRODUCED TO JUSTIFY THE SELECTION OF METRO. IN THE SOURCE SELECTION STATEMENT, THE SOURCE SELECTION OFFICIAL SUMMARIZED THE SEB'S DISCUSSIONS WITH R&W AS FOLLOWS:

RIGGINS AND WILLIAMSON (R&W) IS THE INCUMBENT CONTRACTOR. HIS PROPOSED MANAGEMENT AND OPERATIONS PLAN WAS RATED SATISFACTORY BECAUSE IT DID INCLUDE A GOOD PROCUREMENT PLAN AND DID PROVIDE FOR A SUPERVISORY REVIEW OF A TASK BEFORE START. DESPITE THIS THE BOARD WAS CONVINCED THAT R&W HAD A MAJOR WEAKNESS BY NOT PROVIDING SUFFICIENT ADMINISTRATIVE AND MANAGEMENT SUPPORT PERSONNEL TO PERMIT THE CONTRACT MANAGER TO GIVE HIS FULL ATTENTION TO ASSURE EFFICIENT PERFORMANCE OF REQUIRED SERVICES. THE FAILURE OF R&W TO PROVIDE A FULL TIME CONTRACT MANAGER AND SUPPORTING ADMINISTRATIVE AND MANAGEMENT STAFF HAS A RIPPLE EFFECT ON ALL ASPECTS OF CONTRACT PERFORMANCE. FOR EXAMPLE, IN THE OPERATIONS OF THE WORK CONTROL CENTER, THE ESTIMATING IS SUPPOSED TO FLOW FROM THE PRODUCTION CONTROL CENTER, BUT IT REQUIRED THE COGNIZANT FOREMAN TO ASSIST WITH THE ESTIMATING BECAUSE OF THE LEVEL OF PERSONNEL EMPLOYED AS PRODUCTION CONTROLLERS. THUS IN EFFECT, THE SUPERVISORY FUNCTION OF THE FOREMAN IS DILUTED BY ASSUMING THESE VARIOUS ROLES. WITH RESPECT TO THE MANAGEMENT AND ENGINEERING PERSONNEL EVALUATION AREA, THE BOARD RECOGNIZED THE FACT THAT R&W HAS ORGANIZED A FAIRLY STABLE BLUE COLLAR WORKFORCE OVER A PERIOD OF ABOUT THREE YEARS UNDER PREVIOUS CONTRACTS CALLING FOR LESSER SERVICES. OTHER MAJOR STRENGTHS WERE THE EMPLOYMENT OF FOUR OF FIVE FOREMAN WITH GOOD EXPERIENCE AT THIS CENTER, A PROVEN ENGINEERING SUPERVISOR WITH EXTENSIVE CENTER EXPERIENCE, IN ADDITION TO ENGINEERING PERSONNEL WHO HAVE WORKED WITH THAT SUPERVISOR. NEVERTHELESS THE INCUMBENT FAILED TO MEET AN IMPORTANT RFP REQUIREMENT TO PROVIDE A QUALIFIED CONTRACT MANAGER. THIS TOGETHER WITH THE FACT THAT THE INCUMBENT DID NOT PROVIDE FOR ESSENTIAL ADMINISTRATIVE AND MANAGEMENT SUPPORT PERSONNEL, HURT THE INCUMBENT MOST IN HIS RATING IN THE UNANIMOUS JUDGMENT OF THE BOARD.

SOME OF R&W'S CONTENTIONS REGARDING THE IMPROPER SELECTION OF METRO ARE BASED ON ITS ERRONEOUS CONCLUSION THAT THE TECHNICAL/MANAGEMENT COMMITTEE FAVORED R&W'S PROPOSAL OVER METRO'S. OUR REVIEW OF THE ENTIRE RECORD INDICATES THAT BOTH THE TECHNICAL/MANAGEMENT COMMITTEE AND THE SEB PREFERRED THE METRO PROPOSAL OVER THE PROPOSAL SUBMITTED BY R&W.

WHILE R&W HAS SUBMITTED TO THIS OFFICE NUMEROUS PAGES ATTEMPTING TO EXPLAIN HOW NASA'S TECHNICAL EVALUATION OF ITS PROPOSAL WAS ERRONEOUS, NASA HAS IN TURN SUBMITTED A REBUTTAL TO EACH OF THE PROTESTER'S ALLEGATIONS. AT THIS JUNCTURE, IT SHOULD BE EMPHASIZED THAT IT IS NOT THE FUNCTION OF OUR OFFICE TO EVALUATE PROPOSALS AND WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING OFFICIALS BY MAKING AN INDEPENDENT DETERMINATION AS TO WHICH OFFEROR IN A NEGOTIATED PROCUREMENT SHOULD BE RATED FIRST AND THEREBY RECEIVE AN AWARD. B 164552(1), FEBRUARY 24, 1969. THE OVERALL DETERMINATION OF THE RELATIVE DESIRABILITY AND TECHNICAL ADEQUACY OF PROPOSALS IS PRIMARILY A FUNCTION OF THE PROCURING AGENCY, AND SUCH DETERMINATIONS WILL BE QUESTIONED BY OUR OFFICE ONLY UPON A CLEAR SHOWING OF UNREASONABLENESS, AN ARBITRARY ABUSE OF DISCRETION, OR A VIOLATION OF THE PROCUREMENT STATUTES AND REGULATIONS. B-179603, APRIL 4, 1974; B-176077(6), JANUARY 26, 1973.

BASED ON OUR REVIEW OF ALL OF THE MATERIAL, WE ARE UNABLE TO CONCLUDE THAT THERE HAS BEEN A CLEAR SHOWING THAT THE NASA EVALUATION WAS ARBITRARY OR UNREASONABLE. RATHER, IT APPEARS TO US THAT THE EVALUATION WAS CONDUCTED IN GOOD FAITH AND IN ACCORDANCE WITH THE SOLICITATION EVALUATION CRITERIA. AS PREVIOUSLY STATED, IN THESE MATTERS THE ADMINISTRATIVE JUDGMENT MUST BE AFFORDED GREAT WEIGHT. ON THE BASIS OF THE RECORD BEFORE US, WE FIND NO REASON TO QUESTION NASA'S JUDGMENT.

R&W HAS QUOTED PORTIONS FROM THREE OF OUR DECISIONS AS SUPPORTIVE OF ITS CONTENTIONS THAT NASA ERRED IN ITS SELECTION PROCESS. WE FIND THE THREE DECISIONS ARE NOT ANALOGOUS TO THE PRESENT SITUATION. IN 50 COMP. GEN. 246 (1970), WE UPHELD AN AIR FORCE AWARD TO THE OFFEROR WHO PROPOSED THE LOWEST COST, NOTWITHSTANDING AN ALLEGATION BY THE SECOND LOW OFFEROR THAT ITS PROPOSAL WAS TECHNICALLY SUPERIOR. THE CITED DECISION IS DISTINGUISHABLE IN THAT THE GOVERNMENT, UNLIKE THE PRESENT CASE, WAS DEALING WITH TWO OFFERORS WHO WERE "*** ESSENTIALLY EQUAL AS TO TECHNICAL ABILITY AND RESOURCES TO SUCCESSFULLY PERFORM ***." ID. 249.

THE SECOND CASE CITED BY R&W (52 COMP. GEN. 686 (1973)), INVOLVED A SITUATION WHERE THE GOVERNMENT AWARDED A CONTRACT TO THE OFFEROR PROPOSING THE LOWEST COST NOTWITHSTANDING A LOWER TECHNICAL SCORE, BECAUSE THE SELECTION OFFICIAL FOUND THAT THERE WERE NO TECHNICAL CONSIDERATIONS WHICH OUTWEIGHED THE COST ADVANTAGE OF THE LOWER PROPOSAL. IN THE CITED CASE WE STATED AT PAGE 690, THAT "*** WHETHER A GIVEN POINT SPREAD BETWEEN TWO COMPETING PROPOSALS INDICATES THE SIGNIFICANT SUPERIORITY OF ONE PROPOSAL OVER ANOTHER DEPENDS ON THE FACTS AND CIRCUMSTANCES OF EACH PROCUREMENT AND IS PRIMARILY A MATTER WITHIN THE DISCRETION OF THE PROCURING AGENCY." IN THE PRESENT CASE NASA, WITHIN ITS DISCRETION, CLEARLY FELT METRO'S PROPOSAL WAS SIGNIFICANTLY SUPERIOR AND, THEREFORE, ITS OFFER WAS MOST ADVANTAGEOUS EVEN THOUGH HIGHER IN ESTIMATED COST. SEE NASA PROCUREMENT REGULATION 3.805.2, SUPRA.

R&W ALSO RELIES ON A QUOTED PORTION OF OUR DECISION FOUND AT 51 COMP. GEN. 153 (1971). IN THE CITED CASE WE NOTED THE ERROR OF A NAVY CONTRACT AWARD, WITHOUT A DETERMINATION OF TECHNICAL SUPERIORITY, TO A HIGHER PRICED AND SLIGHTLY HIGHER SCORED OFFEROR, RATHER THAN TO A LOWER PRICED, LOWER SCORED PROPOSAL THAT WOULD MEET THE NEEDS OF THE GOVERNMENT. LIKE THE OTHER CASES CITED BY R&W, THE NAVY CASE IS NOT ANALOGOUS TO THE PROTEST BEFORE US BECAUSE, AS POINTED OUT ABOVE, NASA REASONABLY DETERMINED THAT R&W'S LOWER PRICED PROPOSAL WAS NOT SUFFICIENT TO OVERCOME THE TECHNICALLY SUPERIOR PROPOSAL BY METRO.

FINALLY, REGARDING THE ALLEGATION BY ENSEC CONCERNING THE ALLEGED EXISTENCE OF AN INCONSISTENCY BETWEEN THE FINAL TECHNICAL POINT SCORES AND THE NARRATIVE PORTION OF THE SELECTION STATEMENT WITH REGARD TO ITS AND KLATE HOLT'S PROPOSALS, WE BELIEVE THAT THE SELECTION STATEMENT IS AMPLY JUSTIFIED IN LIGHT OF THE TECHNICAL POINT RATINGS ASSIGNED THE PARTICIPANTS IN THE SUBJECT PROCUREMENT. FURTHERMORE, SINCE WE HAVE CONCLUDED THAT SELECTION OF METRO WAS PROPER, ANY INCONSISTENCY IN THE POINT SCORES AND SELECTION STATEMENT NARRATIVE CONCERNING THE ENSEC AND KLATE HOLT PROPOSALS WOULD NOT BE MATERIAL.

ACCORDINGLY, THE PROTESTS BY R&W AND ENSEC ARE DENIED.