B-179793, FEB 26, 1974

B-179793, FEB 26, 1974

1. UNDER REQUEST FOR PROPOSALS FOR LABORATORY NUTRIENT ANALYSIS OF STRAINED BABY AND JUNIOR FOODS, TECHNICAL PROPOSAL OF OFFEROR WHICH DID NOT INDICATE FIRM UNDERSTOOD SCOPE OF WORK AND WHICH WAS DETERMINED TO BE TECHNICALLY UNACCEPTABLE, WAS PROPERLY REJECTED, SINCE FAILURE OF OFFEROR TO INDICATE IT UNDERSTOOD SCOPE OF WORK DOES NOT RELATE TO RESPONSIBILITY OF OFFEROR BUT TO ACCEPTABILITY OF PROPOSAL. 2. ADMINISTRATIVE DETERMINATION THAT A PROPOSAL IS UNACCEPTABLE AND NOT WITHIN COMPETITIVE RANGE WILL NOT BE DISTURBED ABSENT A SHOWING OF ARBITRARY ABUSE OF ADMINISTRATIVE DISCRETION. 3. REQUEST OF OFFEROR BASED ON CONTENTION THAT PROCUREMENT OF LABORATORY NUTRIENT ANALYSIS OF STRAINED BABY AND JUNIOR FOODS SHOULD HAVE BEEN FORMALLY ADVERTISED RATHER THAN NEGOTIATED IS FOUND TO BE UNTIMELY SINCE GAO INTERIM BID PROTEST PROCEDURES AND STANDARDS PROVIDE THAT PROTESTS BASED ON ALLEGED IMPROPRIETIES IN SOLICITATIONS WHICH ARE APPARENT PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS SHALL BE FILED PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS. 4. LOWEST PRICE PROPOSAL NEED NOT BE CONSIDERED UNDER NEGOTIATED PROCUREMENT IF OFFEROR HAS SUBMITTED TOTALLY UNACCEPTABLE TECHNICAL PROPOSAL. SEE CASES CITED.

TO MEI-CHARLTON, INC.:

REQUEST FOR PROPOSALS (RFP) NO. 641-3-286 WAS ISSUED BY THE FOOD AND DRUG ADMINISTRATION, PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW), WITH A CLOSING DATE OF MAY 16, 1973. THE RFP REQUESTED PROPOSALS FOR LABORATORY NUTRIENT ANALYSIS OF STRAINED BABY AND JUNIOR FOODS. OFFERORS WERE REQUESTED TO SUBMIT A TECHNICAL PROPOSAL AND A BUSINESS MANAGEMENT AND COST PROPOSAL. THE RFP SET FORTH THE FOLLOWING EVALUATION CRITERIA FOR THE TECHNICAL PROPOSALS:

"EVALUATION CRITERIA

"1. GENERAL

PROPOSALS RECEIVED SHALL FIRST BE EVALUATED FROM A TECHNICAL STANDPOINT WITHOUT REGARD TO PROPOSED COST. THOSE PROPOSALS WHICH ARE CONSIDERED TO BE TECHNICALLY ACCEPTABLE SHALL THEN BE EVALUATED FROM A FINANCIAL AND MANAGEMENT STANDPOINT. COMPLIMENTARY TO THE COMPUTED SCORE PROCEDURE, SIGNIFICANT DEFICIENCIES WHICH CAUSE EXCEPTIONALLY LOW SCORES ON SPECIFIC FACTORS OR SUB-FACTORS MAY BE USED AS A BASIS FOR REJECTION AS TO TECHNICAL CAPABILITY.

"2. TECHNICAL EVALUATION

THIS EVALUATION SHALL BE BASED UPON THE COMPLETENESS AND THOROUGHNESS OF THE PROPOSAL SUBMITTED AS EVIDENCED BY ITS CLARITY. THE OFFEROR SHOULD SHOW THAT THE OBJECTIVES STATED IN THE PROPOSAL ARE UNDERSTOOD AND OFFER A LOGICAL PROGRAM FOR THEIR ACHIEVEMENT. THE FOLLOWING FACTORS WILL BE WEIGHED IN DESCENDING ORDER IN ESTABLISHING A NUMERICAL RATING FOR ALL TECHNICAL PROPOSALS SUBMITTED.

"A. UNDERSTANDING OF THE SCOPE OF WORK REQUIRED.

"B. ADEQUACY OF PROPOSED ORGANIZATION TO INCLUDE FULL-TIME OR PART TIME EMPLOYEES, CONSULTANTS AND ALL SUBCONTRACTORS.

"C. AVAILABILITY OF FACILITIES AND EQUIPMENT AND THE EXTENT TO WHICH THE OFFEROR IS WILLING TO COMMIT SUCH FACILITIES TO THE PROPOSED EFFORT.

"D. EXPERIENCE."

TWELVE OFFERS WERE RECEIVED AND EACH TECHNICAL PROPOSAL WAS EVALUATED AGAINST THE CRITERIA ESTABLISHED IN THE RFP BY A TECHNICAL EVALUATION COMMITTEE. THE EVALUATION COMMITTEE CONCLUDED THAT THE TECHNICAL PROPOSALS SUBMITTED BY MEI-CHARLTON, INC., AND CERTAIN OTHER FIRMS WERE UNACCEPTABLE FROM A TECHNICAL VIEWPOINT. THE CONTRACTING OFFICER INDICATES IN HIS REPORT THAT THE TECHNICAL PROPOSAL OF MEI-CHARLTON WAS CONSIDERED UNACCEPTABLE FOR THE FOLLOWING REASONS:

"C. THE TECHNICAL PROPOSAL WAS EVALUATED USING THE PRESCRIBED PROCEDURE AND CRITERIA AND WAS FOUND TO BE DEFICIENT IN THE AREAS DESCRIBED BELOW:

"(1) THE TECHNICAL PROPOSAL, WHICH CONSISTED OF ONE PAGE, DID NOT ADDRESS ITSELF TO THE SUBJECT OF THE RFP EXCEPT TO STATE THAT 'MEI - CHARLTON, INC., CONTINUALLY RUNS SIMILAR MATERIALS ON A NEAR DAILY BASIS.' THERE WAS NO REFERENCE TO PARTICULAR METHODS OF PERFORMANCE, OR TO THE CAPABILITY FOR PREPARATION OF COMPUTERIZED PRINTOUTS OF THE DATA. THIS BRIEF INFORMATION PROVIDED NO WAY OF EVALUATING WHETHER OR NOT THE CONTRACTOR UNDERSTOOD THE SCOPE OF WORK. IN ADDITION, THE PROPOSAL DID NOT INCLUDE A PRICE FOR ANALYSIS OF VITAMIN E, AND STATED THAT SAID FIRM WAS UNABLE TO PERFORM SUCH WORK.

"(2) NO DATA WAS PROVIDED TO INDICATE THE ADEQUACY OF THE CONTRACTOR'S ORGANIZATION.

"(3) THE PROPOSAL DID NOT ATTEMPT TO EXPLAIN THE AVAILABILITY OF FACILITIES AND EQUIPMENT EXCEPT FOR THE LACK OF GAS-LIQUID CHROMATOGRAPHY EQUIPMENT, AND STATED ONLY THAT THE LABORATORY HAD BEEN INVOLVED IN CHEMICAL AND MICROBIOLOGICAL ANALYSES.

"(4) IN THE AREA OF EXPERIENCE, OTHER THAN THE COMPANY OFFICIALS, THOSE PERSONNEL PRESUMABLY BEING ASSIGNED TO THE ACTUAL PERFORMANCE HAD LITTLE EVIDENCE OF EXPERIENCE WITH ANALYSIS OF FOODS. THE PROPOSED PROJECT DIRECTOR'S EXPERIENCE WAS IN METALLURGY AND THEREFORE WAS NOT CONSIDERED TO BE OF SIGNIFICANT BENEFIT FOR THE SUBJECT PROGRAM."

MEI-CHARLTON'S NUMERICAL RATING OF 44 OF A POSSIBLE 100 RANKED ITS TECHNICAL PROPOSAL ELEVENTH OF THE 12 PROPOSALS RECEIVED. AFTER THE EVALUATION OF THE PROPOSALS RECEIVED, NEGOTIATIONS WERE CONDUCTED WITH THE THREE OFFERORS DEEMED BY THE TECHNICAL EVALUATION COMMITTEE TO CONSTITUTE THE COMPETITIVE RANGE. ON JUNE 27, 1973, CONTRACT NO. FDA 73-237 WAS AWARDED TO AGRI-SCIENCE LABORATORIES, INC., IN THE AMOUNT OF $8,000.

MEI-CHARLTON PROTESTED THE REJECTION OF ITS TECHNICAL PROPOSAL AND HAS TAKEN EXCEPTION TO FACTOR "A," UNDERSTANDING OF SCOPE OF WORK, AND FACTOR "D," EXPERIENCE, OF THE EVALUATION CRITERIA. MEI-CHARLTON REFERS TO THE LAST SENTENCE OF PARAGRAPH 1, SECTION "B" OF THE TECHNICAL PROPOSAL INSTRUCTIONS WHICH READS "A DEFINITIVE SCOPE OF WORK, BASED UPON YOUR EVALUATION OF THE WORK REQUIREMENT, ( ) IS (X) IS NOT, DESIRED." THE CORPORATION STATES THAT IT INTERPRETS SUCH SENTENCE TO MEAN THAT A LONG DETAILED SERIES OF INSTRUCTIONS AND TECHNICAL JARGON WOULD NOT BE REQUIRED AND THAT THIS IS PERTINENT TO THE SUBJECT RFP WHERE THE WORK IS OF A ROUTINE NATURE, CLEARLY DEFINED BY THE ANALYSIS OUTLINED BY THE ASSOCIATION OF OFFICIAL ANALYTICAL CHEMISTS (AOAC). AS TO FACTOR "D," EXPERIENCE, MEI-CHARLTON ALLEGES THAT ITS PERSONNEL ARE FULLY QUALIFIED TO CARRY OUT THE ANALYSES SINCE THEY HAVE CONDUCTED THE TYPE OF ANALYSES REQUIRED BY THE RFP FOR PERIODS OF UP TO 40 YEARS. THE CORPORATION STATES THAT SINCE THE WORK COVERED BY THE RFP WAS OF A ROUTINE NATURE, IT DID NOT THINK IT NECESSARY TO WRITE MANY REDUNDANT PAGES AS TO THE QUALIFICATIONS OF ITS INDIVIDUAL EMPLOYEES. MEI-CHARLTON MAINTAINS THAT IF THE CONTRACTING OFFICER DID NOT HAVE SUFFICIENT INFORMATION TO MAKE AN EVALUATION, HE SHOULD HAVE REQUESTED SUCH DATA FROM THE FIRM. THE CORPORATION CONTENDS THAT IT SHOULD HAVE RECEIVED THE AWARD BASED UPON ITS BEING THE LOW OFFEROR.

IN PARAGRAPH 1 OF THE TECHNICAL PROPOSAL INSTRUCTIONS, OFFERORS WERE ADVISED THAT THE TECHNICAL PROPOSAL SHOULD PRESENT SUFFICIENT INFORMATION TO REFLECT A THOROUGH UNDERSTANDING OF THE WORK REQUIREMENTS AND A DETAILED PROGRAM FOR ACHIEVING THE OBJECTIVES OF THE STATEMENT OF WORK. WHILE OFFERORS WERE ADVISED IN THE LAST SENTENCE OF PARAGRAPH 1 OF THE TECHNICAL PROPOSAL INSTRUCTIONS THAT A DEFINITIVE SCOPE OF WORK, BASED UPON THE OFFEROR'S EVALUATION OF THE WORK REQUIREMENT, WAS NOT DESIRED, IT IS NOTED THAT IN PARAGRAPH 2 OF SUCH INSTRUCTIONS, OFFERORS WERE ADVISED THAT THE TECHNICAL PROPOSAL SHOULD CONTAIN CERTAIN MINIMUM DATA AND INFORMATION WHICH WAS ENUMERATED IN GREAT DETAIL.

IT IS REPORTED THAT MEI-CHARLTON RECEIVED A LOW SCORE UNDER FACTOR "A" BECAUSE IT DID NOT CLEARLY DEMONSTRATE A THOROUGH UNDERSTANDING OF THE SCOPE OF THE WORK IN ITS TECHNICAL PROPOSAL. IT APPEARS THAT THE CORPORATION HAS ERRONEOUSLY ASSUMED THAT THE INSTRUCTIONS PERTAINING TO THE ACHIEVEMENT OF THE STATEMENT OF THE WORK ARE TO BE REGARDED, IN AND OF THEMSELVES, A DEFINITE SPECIFICATION OF THE TYPE USED IN INVITATIONS FOR BIDS COVERING FORMAL ADVERTISED PROCUREMENTS. ALTHOUGH IT MAY APPEAR THAT REJECTION OF MEI-CHARLTON'S TECHNICAL PROPOSAL FOR FAILURE TO UNDERSTAND THE SCOPE OF THE WORK IMPLIES THAT ITS RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR WAS A FACTOR, GAO HAS HELD IN B-170890, NOVEMBER 18, 1970, THAT A DETERMINATION OF THIS NATURE RELATES TO THE QUESTION OF WHETHER THE PROPOSAL IS TECHNICALLY ACCEPTABLE AND WITHIN A COMPETITIVE TECHNICAL RANGE FOR NEGOTIATION PURPOSES AND DOES NOT INVOLVE MATTERS OF CAPACITY AND CREDIT WHICH, IN A CASE INVOLVING A SMALL BUSINESS FIRM, MUST BE JUDGED BY THE SMALL BUSINESS ADMINISTRATION. SEE 15 U.S.C. 637(B)(7) AND 46 COMP. GEN. 893 (1967).

THE CONTRACTING OFFICER REPORTS THAT IN THE AREA OF EXPERIENCE, OTHER THAN COMPANY OFFICIALS, THOSE PERSONNEL PRESUMABLY BEING ASSIGNED TO THE ACTUAL PERFORMANCE HAD LITTLE EVIDENCE OF EXPERIENCE WITH ANALYSIS OF FOODS; THAT THE PROPOSED PROJECT DIRECTOR'S EXPERIENCE WAS IN METALLURGY AND THEREFORE WAS NOT CONSIDERED TO BE OF SIGNIFICANT BENEFIT FOR THE SUBJECT PROGRAM; AND THAT FROM THE FOREGOING, IT IS REASONABLE TO CONCLUDE THAT MEI-CHARLTON FAILED TO DEMONSTRATE ADEQUATE EXPERIENCE. IN REBUTTAL TO THE FOREGOING STATEMENT OF THE CONTRACTING OFFICER THAT MEI-CHARLTON DID NOT SUBMIT ANY EVIDENCE OF PERSONNEL BEING EXPERIENCED IN ANALYSIS OF FOODS, THE CORPORATION STATES THAT BOTH ITS MR. ALVA B. RICHARDSON, A BACTERIOLOGIST, AND ITS DR. DAVID B. CHARLTON, CORPORATION SECRETARY AND PROJECT BACTERIOLOGIST, HAVE EXTENSIVE EXPERIENCE IN FOOD ANALYSIS AND THAT IN FACT, DR. CHARLTON HAS 45 YEARS OF EXPERIENCE. HOWEVER, IT IS NOTED IN THIS REGARD THAT NEITHER MR. RICHARDSON OR DR. CHARLTON WAS LISTED IN MEI-CHARLTON'S TECHNICAL PROPOSAL AS THE PERSONNEL WHO WOULD BE PERFORMING OR SUPERVISING THE LABORATORY NUTRIENT ANALYSIS OF STRAINED BABY AND JUNIOR FOODS.

WHILE MEI-CHARLTON DID SUBMIT THE LOWEST PROPOSAL AS TO PRICE, WE HAVE FREQUENTLY RECOGNIZED THAT PRICE NEED NOT BE CONSIDERED WHEN A TOTALLY UNACCEPTABLE TECHNICAL PROPOSAL IS SUBMITTED. 49 COMP. GEN. 309 (1969); 50 ID. 565 (1971); AND 53 COMP. GEN. (B-177637, JULY 5, 1973).

WE HAVE RECOGNIZED THAT A REASONABLE DEGREE OF ADMINISTRATIVE DISCRETION IS PERMISSIBLE WITH RESPECT TO TECHNICAL CONSIDERATIONS. THEREFORE, WE WILL NOT DISTURB AN ADMINISTRATIVE DETERMINATION THAT A PROPOSAL IS TECHNICALLY UNACCEPTABLE AND NOT WITHIN A COMPETITIVE RANGE IN THE ABSENCE OF A CLEAR SHOWING THAT SUCH A DETERMINATION WAS AN ARBITRARY ABUSE OF DISCRETION. 48 COMP. GEN. 314 (1968). WE HAVE REVIEWED THE REASONS NOTED ABOVE FOR THE REJECTION OF THE TECHNICAL PROPOSAL AND CANNOT CONCLUDE THAT THE AGENCY PERSONNEL ACTED ARBITRARILY IN THEIR DETERMINATION THAT MEI- CHARLTON'S PROPOSAL WAS NOT WITHIN A COMPETITIVE RANGE. B-176504, DECEMBER 21, 1972; B-176294, OCTOBER 27, 1972; B-177822, JULY 16, 1973. ACCORDINGLY, THE PROTEST IS DENIED.

FINALLY, MEI-CHARLTON CONTENDS THAT THE PROCUREMENT SHOULD HAVE BEEN FORMALLY ADVERTISED RATHER THAN NEGOTIATED. THE CORPORATION STATES THAT GOVERNMENT PROCUREMENT REGULATIONS CLEARLY DELINEATE THAT AWARDS SHOULD BE MADE ON A FIXED-PRICE BASIS WHEN THERE IS AN ADEQUATE SPECIFICATION FOR THE WORK TO BE CARRIED OUT ON A COMMERCIAL BASIS. IN THIS CONNECTION, THE FIRM POINTS OUT THAT THE JOURNAL OF THE ASSOCIATION OF OFFICIAL ANALYTICAL CHEMISTS, 11TH EDITION, 1970, GIVES VERY DETAILED METHODS FOR THIS TYPE OF ANALYSIS.

THE SUBJECT CONTRACT WAS NEGOTIATED PURSUANT TO 41 U.S.C. 252(C)(10), WHICH PROVIDES THAT CONTRACTS MAY BE NEGOTIATED FOR PROPERTY OR SERVICES FOR WHICH IT IS IMPRACTICABLE TO SECURE COMPETITION. SECTION 1- 3.210(A)(13) OF THE FEDERAL PROCUREMENT REGULATIONS LISTS THE IMPOSSIBILITY OF DRAFTING ADEQUATE SPECIFICATIONS, THE BASIS RELIED UPON IN THE ADMINISTRATION'S DETERMINATION AND FINDINGS, DATED APRIL 23, 1973, AS ONE OF THE INSTANCES WHERE THE CITED STATUTORY AUTHORITY MAY BE USED.

OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 CFR 20.1, ET SEQ.) PROVIDE THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN SOLICITATIONS WHICH ARE APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS SHALL BE FILED PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS. MEI- CHARLTON DID NOT QUESTION THE USE OF NEGOTIATION PROCEDURES UNTIL AFTER THE AWARD OF THE CONTRACT. SINCE THE CORPORATION STATES THAT ITS OFFICIALS HAD EXTENSIVE EXPERIENCE IN ANALYSIS OF FOOD, IT WOULD APPEAR THAT THE FIRM HAD SUFFICIENT EXPERIENCE TO CALL TO THE PROCURING ACTIVITY'S ATTENTION THE REASONS WHY IT BELIEVED IT WAS NOT IMPOSSIBLE TO DRAFT ADEQUATE SPECIFICATIONS FOR THE LABORATORY ANALYSIS OF THE FOOD PRODUCTS IN QUESTION. IN ANY EVENT, WHEN THE PROCURING ACTIVITY DECIDED TO PROCURE THE LABORATORY ANALYSIS OF THE FOOD PRODUCTS BY NEGOTIATION, THE APPROPRIATE TIME TO PROTEST THIS METHOD WOULD HAVE BEEN AT THE TIME OF THE ISSUANCE OF THE RFP AND, IN ANY EVENT, NO LATER THAN THE CLOSING DATE FOR RECEIPT OF PROPOSALS WHEN REMEDIAL ACTION MIGHT HAVE BEEN POSSIBLE. IN THE CIRCUMSTANCES, THIS PORTION OF MEI-CHARLTON'S PROTEST MUST BE REGARDED AS UNTIMELY AND WILL NOT BE CONSIDERED.