B-155175, NOV. 23, 1964

B-155175, NOV. 23, 1964

TO ARLEY-ROTH CORPORATION:

WE REFER TO YOUR LETTER OF SEPTEMBER 14, 1964, PROTESTING THE AWARD OF A CONTRACT TO WILL EISNER PRODUCTIONS UNDER DEPARTMENT OF THE ARMY REQUEST FOR PROPOSALS NO. AMC/M/36-237-64-58/P). YOUR LETTER SPECIFICALLY ASKS OUR OFFICE TO EVALUATE THE SUBJECT AWARD FOR THE REASON THAT AT YOUR QUOTED PRICE YOU ARE CONVINCED THAT YOU COULD HAVE ACCOMPLISHED THE REQUIRED WORK CALLED FOR BY THE SPECIFICATIONS.

THE PREVENTIVE MAINTENANCE MONTHLY ("PS" MAGAZINE) IS PUBLISHED BY THE DEPARTMENT OF THE ARMY TO PROVIDE INFORMATION TO THE FIELD SOLDIER ON THE MAINTENANCE AND USE OF EQUIPMENT. PRIOR TO THE FISCAL YEAR 1965, THE ART WORK CONTRACT FOR THE MAGAZINE WAS NEGOTIATED ANNUALLY ON A SOLE-SOURCE BASIS WITH WILL EISNER PRODUCTIONS. DUE TO THE GREAT INTEREST EXPRESSED BY OTHER FIRMS IN THIS PROCUREMENT THE CONTRACTING OFFICER EXPLORED THE POSSIBILITIES OF OPENING THE FIELD TO COMPETITIVE NEGOTIATION. ON APRIL 10, 1964, REQUEST FOR PROPOSALS WAS ISSUED AND 77 FIRMS WERE SOLICITED. FOURTEEN PROPOSALS WERE RECEIVED BY THE CLOSE OF BUSINESS ON MAY 11, 1964. THE PRICES FOR THE 12 MONTHLY ISSUES RANGED FROM $59,820 TO $265,200.

THE REQUEST FOR PROPOSALS PROVIDED THAT THE CONTRACTING OFFICER MAY PROVIDE EACH OFFEROR WITHIN THE ZONE OF CONSIDERATION AND NEGOTIATION TYPICAL "PS" MAGAZINE MANUSCRIPTS, TECHNICAL ART REFERENCE MATERIAL AND INSTRUCTIONS FOR EQUIVALENT OF 8 TO 10 TRIAL "PS" MAGAZINE PAGES. OF THE 14 PROPOSALS SUBMITTED, 8 OFFERORS FELL WITHIN THE ZONE OF CONSIDERATION, WHICH INCLUDED YOUR FIRM. THE REQUEST FURTHER PROVIDED THAT THESE TRIAL PAGES WOULD BE REVIEWED BY THE "PS" EDITOR TO DETERMINE IF THE WORK OF EACH OFFEROR WAS OF A QUALITY ACCEPTABLE FOR USE IN THE "PS" MAGAZINE. MAY 19, 1964, EACH OFFEROR IN THE ZONE OF CONSIDERATION WAS FURNISHED IDENTICAL "PS" MAGAZINE MANUSCRIPTS, TECHNICAL ART REFERENCE MATERIAL AND PREPARATION INSTRUCTIONS FOR THE EQUIVALENT OF 8 TO 10 TRIAL "PS" MAGAZINE PAGES. EACH OFFEROR WAS ALLOWED 12 WORK DAYS FOR PREPARATION AND DELIVERY OF THIS MATERIAL TO THE CONTRACTING OFFICER. ALL EIGHT OFFERORS FURNISHED THEIR SAMPLES WITHIN THE TIME PRESCRIBED.

ON JUNE 11, 1964, THE "PS" EDITOR, UNITED STATES ARMY MAINTENANCE BOARD, FORT KNOX, KENTUCKY, VISITED TOBYHANNA ARMY DEPOT FOR THE PURPOSE OF EVALUATING THE SAMPLES OFFERED BY ALL EIGHT OFFERORS. THE SAMPLES WERE DISPLAYED UNIDENTIFIED AS TO OFFEROR OR TO THE PRICE RANGES OF THE OFFERORS. AT THIS TIME THE EDITOR OFFERED AN EVALUATION SHEET FOR THE PURPOSE OF RATING THE SAMPLES SUBMITTED. THE CONTRACTING OFFICER AGREED TO THE RATING SHEET AND RECOMMENDED THAT THE DEPOT ILLUSTRATOR ALSO NOTE THE SAMPLES SUBMITTED. THE "PS" EDITOR EVALUATED YOUR TRIAL PAGES IN ACCORDANCE WITH PAGE 2, SUBPARAGRAPH (C) OF THE REQUEST FOR PROPOSALS WHICH READ AS FOLLOWS:

"THESE TRIAL PAGES SUBMITTED BY EACH OFFEROR WILL BE REVIEWED BY THE EDITORS FOR DETERMINATION IF THE WORK OF EACH OFFEROR IS OF A QUALITY ACCEPTABLE FOR USE IN PS MAGAZINE. IF THE WORK OF EACH OFFEROR IS OF AN ACCEPTABLE QUALITY, THE OFFEROR'S QUOTATION WILL BE ENTERED FOR COMPETITION. IF THE WORK IS NOT ACCEPTABLE, THE OFFEROR'SQUOTATION WILL BE REJECTED.'

IN ACCORDANCE WITH THE ABOVE THE SAMPLES SUBMITTED BY YOU WERE DETERMINED TO BE BELOW THE QUALITY ESTABLISHED IN PRIOR PUBLICATIONS DUE TO USE OF ZIPATONE-TYPE SCREEN FOR BENDAY, "PS" CHARACTERS NOT SUFFICIENTLY WELL DRAWN,"GAG" ART INAPPROPRIATE--- SOMEWHAT SLAPSTICK- - LAYOUT AND USE OF SPACE WAS VERY MEDIOCRE, AND LACK OF TECHNICAL DETAILS. AS A RESULT OF THIS DETERMINATION BY THE "PS" EDITOR AND IN SPITE OF THE FACT THAT YOUR PRICE OF $59,820 WAS THE LOWEST OFFER, IT WAS DETERMINED THAT YOUR OFFER SHOULD BE REJECTED. BECAUSE THIS COMPETITIVE PROCUREMENT WAS THE FIRST OF ITS KIND FOR THIS MAGAZINE, IT WAS DECIDED TO CONSULT WITH THE HEAD OF THE PROCURING ACTIVITY, UNITED STATES ARMY SUPPLY AND MAINTENANCE COMMAND. PRESENTATION WAS MADE AT HEADQUARTERS, SUPPLY AND MAINTENANCE COMMAND, AND IT CONCURRED WITH THE ACTION TAKEN BY THE TOBYHANNA ARMY DEPOT.

THE RECORD BEFORE US INDICATES THAT THE EVALUATION WAS ACCOMPLISHED ON AN OBJECTIVE BASIS USING FACTORS WELL ESTABLISHED IN THE OVERALL QUALITY OF "PS" MAGAZINE IN ITS YEARS OF PUBLICATION. IN NEGOTIATED PROCUREMENTS, THE RULES OF FORMALLY ADVERTISED COMPETITIVE BIDDING, SUCH AS THE REQUIREMENT FOR AWARD TO THE LOWEST RESPONSIVE,RESPONSIBLE BIDDER, ARE NOT APPLICABLE AND THE NEGOTIATION AUTHORITY MAY LEGALLY TAKE INTO CONSIDERATION ALL FACTORS DEEMED ESSENTIAL TO THE ACCOMPLISHMENT OF THE PROCUREMENT. SEE B-130216, DATED APRIL 4, 1957, AND B-146688, DATED OCTOBER 9, 1961. THE FACT THAT MORE WEIGHT IS GIVEN TO EVALUATION FACTORS OTHER THAN COST DOES NOT IN ITSELF RENDER ILLEGAL AN AWARD OF A CONTRACT MADE ON THAT BASIS. SEE 40 COMP. GEN. 508. IN THE INSTANT CASE THE DEPARTMENT OF THE ARMY DETERMINED THAT YOUR PROPOSAL WAS TECHNICALLY INSUFFICIENT TO MEET ITS MINIMUM NEEDS. THE QUESTION OF WHETHER THIS DETERMINATION WAS CORRECT IS NOT ORDINARILY CONSIDERED TO BE WITHIN THE JURISDICTION OF THIS OFFICE. IN OUR DECISION B-139830, DATED AUGUST 19, 1959, WE MADE THE FOLLOWING OBSERVATION:

"THIS OFFICE HAS NEITHER AN ENGINEERING STAFF NOR A TESTING LABORATORY TO EVALUATE THE TECHNICAL ASPECTS OF SPECIFICATIONS. MOREOVER IN DISPUTES OF FACT BETWEEN A PROTESTANT AND A GOVERNMENT AGENCY, WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT. WHETHER A PARTICULAR BID IS RESPONSIVE TO THE TECHNICAL DETAILS OF THE SPECIFICATIONS IS NOT A MATTER, ORIGINALLY, FOR OUR DETERMINATION. * * *"

IN THIS REGARD, WE HELD IN OUR DECISION B-143389, DATED AUGUST 26, 1960, AS FOLLOWS:

"THE QUESTION AS TO THE ACTION, IF ANY, WHICH OUR OFFICE SHOULD TAKE IN CASES INVOLVING THE EVALUATION OF TECHNICAL REQUIREMENTS OF SPECIFICATIONS, ETC., HAS BEEN THE SUBJECT OF A NUMBER OF DECISIONS BY OUR OFFICE. YOUR PROTEST IS BASED UPON SUCH AN EVALUATION. OF NECESSITY, OUR OFFICE HAS ESTABLISHED A RULE GOVERNING SUCH SITUATIONS. IN A DECISION DATED JANUARY 8, 1938, TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, PUBLISHED AT 17 COMP. GEN. 554, 557, WE SET FORTH THE FOLLOWING RULE WHICH WE CONSIDER TO BE CONTROLLING IN THE INSTANT MATTER:

"IT IS IN THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS, AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THOSE SPECIFICATIONS. * * *"

RESPECTING YOUR REFERENCE TO LACK OF KNOWLEDGE AS TO PRICES SUBMITTED BY OTHER UNSUCCESSFUL OFFERORS, THIS IS A NEGOTIATED PROCUREMENT WHICH, UNDER PARAGRAPH 3-507/B) OF THE ARMED SERVICES PROCUREMENT REGULATION, REQUIRES PUBLIC DISCLOSURE ONLY OF THE AWARD PRICE. THEREFORE, YOU WERE INFORMED ONLY OF THE CONTRACT PRICE TO WILL EISNER PRODUCTIONS AT $157,055.52, WHICH WE BELIEVE WAS PROPER UNDER EXISTING LAW.

IN SUMMARY, THEREFORE, BASED UPON OUR REVIEW OF THE ENTIRE RECORD FURNISHED US BY THE DEPARTMENT OF THE ARMY, IT IS CLEAR THAT THE PROCEDURES SET FORTH IN THE REQUEST FOR PROPOSALS FOR EVALUATING THE PROPOSALS WERE STRICTLY FOLLOWED BY THE ADMINISTRATIVE OFFICIALS; IT IS ALSO APPARENT THAT THE ACTION OF THE "PS" EDITOR IN REJECTING YOUR PROPOSAL, SUPPORTED BY THE HEAD OF THE PROCURING ACTIVITY, THE CONTRACTING OFFICER AND TECHNICALLY QUALIFIED PERSONNEL, WAS FAIR AND IMPARTIAL.

ACCORDINGLY, IN LIGHT OF THE FOREGOING, WE PERCEIVE NO BASIS FOR HOLDING THAT THE AWARD AS MADE WAS ILLEGAL OR IMPROPER.