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April 26, 1989 MEMORANDUM FOR Edward L. Halman, Director Division of Contracts and Property Administration FROM:
Hudson B. Ragan Assistant General Counsel for Administration Office of the General Counsel
SUBJECT:
COMMENTS ON PROPOSED NEW REGULATION ENTITLED
" NUCLEAR REGULATORY COMMISSION ACQUISITION REGULATION (NRCAR)"
By memorandum of March 27 the Director, Office of Administration, requested counsel's review and comment on the subject regulation, which implements the Federal Acquisition Regulation for this agency. We previously provided informal comments on this proposed regulation for your staff's consideration.
In addition, I ask that you consider two further recommendations, either at this time or in the initial revisions to the NRCAR.
The first recommendation concerns NRC's procedures for handling bid protests and contractor disputes.
In this regard, there is attached proposed language for the NRCAR that would, if adopted, spell out NRC's policies and procedures in this area. This language can be inserted as Part 2033 of the proposed NRCAR. In addition to reflecting existing NRC practices, this proposed language would introduce two changes, as set forth below.
The first change would shift responsibility for preparing NRC's response to bid protests filed with the General Accounting Office from OA to OGC. Given the increasingly judicial nature of bid protest proceedings at GA0 - which can include examination and cross-examination of agency witnesses under oath - OGC should, in my opinion, have primary responsibility in this area. Consistent with FAR Section 33.104(a)(3)(vi), the contracting officer would still submit his or her independent statement of the facts and comments.
The second change would have agency level protests decided by the Director, DCPM, rather than by the same contracting officer who made the protested award.
This provides assurance that the contracting officer's award decision will be independently reviewed at a higher level.
My second recommendation concerns NRC's procedures for making competitive range determinations and source selections as now set forth in NRC Manual Appendix 5101, Subparts IV-2 and 5 to be continued as Sections 2015.608 and
.611 of the NRCAR. These procedures require that NRC's Source Evaluation
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- Panels (SEPs) prepare recommended competitive range determinations and source selections for the contracting officer. This procedure, of having the SEP prepare recommended determinations, can be viewed as inconsistent with the FAR 15.609 requirement that "(t)he contracting officer shall determine the competitive range," and FAR 15.611(d) relating to source selection.
For example, in a recent decision of the General Services Board of Contracts Appeals - the protest of Orange Systems, GSBCA No. 9576-P, 1988 BDP P210 September 23, 1988, copy attached - the board concluded that "the original formal competitive range determination was not made by the contracting officer" as required by the FAR, but that she later adopted the board's determination without reservation, which corrected the initial violation.
In order to avoid potential challenges in this area, NRC would be better advised to adopt procedures which limit the SEP's role to that of technical evaluation, and reserve the competitive range and source selection determinations to the contracting officer.
This is not to say that the contracting officer must make these determinations in a vacuum, without technical advice or guidance from the SEP. Rather, NRC's procedures should place the initial responsibility for making these determinations with the contracting officer, and provide for the technical office's participation in a less direct manner. This can be done a number of ways, both formally and informally, depending upon the degree of participation desired.
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e Hudson B. Ragan Assistant General Counsel for Administration Office of the General Counsel Attachments i
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f PART 2033 - PROTESTS, DISPUTES AND APPEALS Subpart 2033.1 Protests 2C33.103 Protests to the Agency (a) For purposes of this regulation, protests include written award disputu initiated by disappoireced bidders under this Subpart; under FAR 33.103; or otherwise directly challenging at the agency level a decision to award, or not award, a specific NRC contract. The Director, DCPM shall decide protests filed with the NRC in as expeditious manner as possible.
(b) Protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the closing date for receipt of proposals shall be filed prior to bid opening or the closing date for receipt _of initial proposals.
In acquisitions where proposals are requested, alleged improprieties which do not exist in the initial solicitation but which are subsequently incorporated into the solicitation must be protested not later than the next closing date for receipt of proposals following the incorporation.
(c)
In cases other than those covered in paragraph (b) of this section, protests shall be filed not later than ten working days after the basis of protest is known or should have been known, whichever is earlier.
(d) The agency shall oct process, or shall cease processing, agency ievel protests that are protested outside the agency.
2033.104 Protests to GA0 (a) The Of fice of General Counsel shall represent the agency in protests filed with the GAO and the Assistant General Counsel for Administratior, shall assign a staff attorney who, in consultation with the contracting officer, shall be responsible for handling the agency's response to the protest.
(b) The contracting of ficer for the protested procurement shall be responsible for preparing the protest file and findings required by FAR 33.104(a)(3); for providing the notices required under FAR 33.104(a)(4); and for otherwise assisting counsel in responding to the protest.
(c) The determinations under FAR 33.104(b)(1) or FAR 33.104(c)(2) to award a contract prior to resolution of a protest, or to proceed with perfonnance of a contract protested within ten days after award, shall be made by the Director, DCPM with the concurrence of counsel.
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J 2033.105 Protests to the GSBCA (c) The Office of General Counsel shall represent the agency in protests filed with the GAO and the Assistant General Counsel for Administration shall assign a staff attorney who, in consultation with the contracting officer, shall be responsible for handling the agency's response to the protest.
(b) The contracting officer shall be responsible for preparing the protest file required by FAR 33.105(b) and otherwise assisting counsel in responding to the protest.
(c) The determination and finding required by FAR 33.105(d)(2) in cornection with suspension hearings shall be prepared and executed by the Director, DCPM.
Subpart 2033.2 Disputes and Appeals 2033.203 Applicability (a) Pursuant to an interagency inter-agreement between the NRC and the Department of Energy Board of Contract of Appeals (EBCA), the EBCA will hear appeals from final decisions of NRC contracting officers issued pursuant to the Contract Disputes Act. The EBCA rules appear in 10 CFR Part 1023.
2033.211 Contracting Officer's Decision (a) Contracting officers shall alter the paragraph at FAR 33.011(a)(4)(iv) to identify the Energy Board of Contract Appeals and include its address: Webb Building, Room 1006, 4040 h. Fairfax Drive,Arilington.
Virginia 22203.
2033.214 Contract Clause (a) The contracting officer shall use the clause at FAR 52.223-1, Disputes, with its Alternate I where continued performance is vital to National security, the public health and welfare, critical and major agency programs, or other essential supplies or services whose timely reprocurement from other sources would be impracticable.
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1988 BPD BOARD PROTEST D ECI SIO N S Board of Contract Appeals Gerwen Sm m Washegem, OC X*le
_Sep t esabar 13, 1988 _
Fretest of a
MAJGE ST5TDts CDCA Bo. 9376-F I
solicitation 53. F69642-88-t0197
- Cranted t
app arante for Protester.
Julio 1.uscaford titcher, Esq.
Ocange Systems Saul, tving, Realth & Saul 1901 L Street, p.V.
- Seite 700 e
Tashingtoe, DC 20034 Arpearances for Respondent, e Carl J. Fecklapeugh, tag.
'J.S.
Depr teent of the alt Force
- Janice M. Sellveci, Esg.
- 0. Eevin Tiscent, Esg.
s Office of the General Counsel U.S. Departneet of the Air Force
- The feetages, teos aD1000 Vashington, DC 20330-1000 Appearances. for f atervener, a
A. Eevin Fahey, Esq.
talifas Ragineering, lacorporated Jacob 3. Pompa, Esq.
Poepan, tuf fner & Bass 209 North Patrich Street -
Alexandria T4 22314 1
Ottalce by administrative Judge Mell!
This protest vu filed om July 21, 1984, by Orsagi lystems (Orarge).
It concerns the esclules of Orange free the cespetitive range of a procurement unde rt ak en by r e s pond en t, the timited States alt Force. The procurement is for maisterance of certals gsvernaast-evsed outcented data pro:essing equipeent (40F1) in itshir.stos, D.C. and the estroundit.g area.
Specifically, the protester contends that the reasou gleen by respondent for escluding Or ar.g e f rom the coepetitive rar.ge are locorrect and that it should, therefore, be restored to the coepetitive range and allowed to f dttbar participate in this procurement, Eall f u Engineering, Incorporated, an efferer la this same presurement, has tr.tervened in this protest as an intervener of right. It has opposed the grounds of protest, contending that Orar.ge vu properly u cluded free the cos;etitive range.
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@t BOARD PROTEST D ECl SIO N S 1988 BPD 2
C2cA Ilo. 9576-F For the reasons set out is this oplaica, we graat Orsage's protest and revise r espondent's procurement astbortry so as to direct respondent to restore t.be protester to the competitive range and proceed with the procurement la accordsace with all applic.able statutas and reguistions.
Findings of Fact The 5ellettattom 1,
em Itarch 14, 1968, the respondent issued a request for proposala number FOH2-48-40197 (the eelititatics). Protest File, Exhibit 8.
(177),solicisettoo calls ier the maintenance of spectfled govermaant-owned NADFS ly.ated vitbla a fif ty alle radius of the Pentagon. M.atC.).
Receipt and Initial Screenlea of Propoests 27, 1964. Transcrf st et 77. cm Proposals were sutaitted on May 2.
the contrattlag of ficer set at Andrevs Air Force Base with the Key 31,1984, chairman and sesbers of the source selection evaluattom board (SSED)
At that meettag the contracting of fices appoint ed for this procurement.
the procureaant and on their briefed the 55I3 chairman and members on for the technical evaluation of proposals.
Id. at 75-76, resper.stbilitythat meeting, the contracting of ficer provided the B12 c.hairman 412.
At If with copies of the ef ferors' technic.a1 proposals for evaluattoa.
3.
Fallering the meeting at Andrevs Air Fette Base, the 55t3 made Tram. script et 413 N board sles discsssed sa tsvestory of the proposals.tvalsation Guide and the initial screening e.bedlist vbich it the Propesal N Proposal Ivaluatipe Guide providas for am tattial er includ ed.
14.
it is la coepliance with and su eenGg of a proposal to ' ensure stated is the Efr
- first respor.sive to the sandatory eelicitettoo requirements sJN tattial screeslag ched. list consists of Izhlbit 7 at 1.
frotest File, an abbr evia t ed copy 61 the statenest of work for this RTP which statas tbs mandatory requirements. N Culde statess If a proposal soas not reasonably address the assential requireeests of the solicitettoa, or if there are any eubstantial techalcal drsvtach ovf fittently beyond corre<ttee er leprerement cocsiderstice, the proposal vill not be considered tecbalcally acceptabis.
Likewise, sajor business deficleoclas or oatssions that cos14 net reasonably be arpetted ta be eure4 vos1d be considered not acceptable.
af fletal respoe.sible for compiling the Preposal Ivaluation cuide Id.
The Uplait>pd is bis evt verts the purpose of this initial screenir.g. Se stated:
The Isitial screenic4s were to see vbetber the contractor saadetery specificatic,ns r eqvt r ed in the technical had met of the R.TF, vbere the evaluation was more a.s to how they section 1 210 tips
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were gely to meet it sad vt> ether stat they proposed was sound methodology, whether it met our requirement sad vtetber they had a firs understanding of our requirement.
Trauctlpt at 49-90. In e stallar vote, the trp itself providess,
propesal technical evaluatloa vill be accoepitsbed by a taan of highly quallfled att Perce Technical personnel. The tsaa's primary res ponsiblis ty is to revie, each proposal to deterstas its the proposal meets - all aandatory techalcal requirementa without revisions is deficient, but can be resteed to meet all mandatory technic.a1 requirementst er, is deficient and cannet be revised to meet all manda tory requirements.
Protest Flie. E.a.hibit 8 at 5-3.
4.
The SSEE seabers tunedtately commenced the initial screentag of all proposals.
N chairsan had at his disposal sin evaluators. Be therefore es t a blished three two-person teams and distributed the proposals among thee.
The lattial screening of propesals took opprestaately three days.
Tr s.r sc rip t at 413.
The screening of protester's proposal teek a considerable snount of time. One evaluator took apprezimately four and a half to sin bours to screen protester's prcposal. Id. at 406. The other evaluator assigned to the screening of l
protea er's proposal took approximately a day and a half to complete the screenlag. M.at113.
Their checillets contain a number of marginal notes and annotetleas.
Fretest File, Exhibit 24. Tab C.
S.
N $5E3 chairssa testified that at the time of the initial screening of pre;es sis, he reviewed the lattial screenlag checklista pretered by the sesha ters sesigned to the screenlag of the protester's propesal.
Se aise stated that be compared these chatulate to protester's proposal. Traucilpt at 414. Be stated that la screening the proposals, he was looking for four things, namely, a restatement of the asadatory r equir asea t s, a stataeast of compliance, a staten,eet of how the coep u y veuld secosplish the aandatory requireunt and egpor tir.g es.asples of how this requirement is set la asisting contracts. 1d. at 415. se far as the protester's propesal is concerned, the SSE3 chai,rman coetended that 'those four items were lacung to all tt.e mandatories.' M. at 416. Sued upon his review of the e vaha t ers' checuls t s and the protester's proposal, be concluded it had major omi s sieu and defitter.cles and vu so lacung to technical serit that it eeu14 not be further evaluated.
- 14. at 413-16. Be coetanica t ed this taforestlos to the contractied officer and vaa instructed
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to t.a v e the evaha t ers pre re viitten statements as to why the r e e:, amer:d e t t en was betr.
nada that the proposal be ellair.ated f ree the t em pe t i t i ve r ar.ge. M.at71-73,417-18, 6.
The ccetractira officer testified that bef ore the 1513 cha!raan briefed the Source Sele < tion Advisory Council (15AC) en the results of the es aha tion of proposals, she also reviewed in detail the lettial screening i 210 0 88 L.
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checuists pr opt ed by the evalutors of protester's proposal. Traracript at M-67 She did not, however, compre thee to the Orange's propesal.
Id.
at 70.
She further esplained that she reviewed the results of the taltTal screentag of proposals, locluding the protester's, not free a technical perapective tut te ensure thet thers vu eou t e t ency throughovt the evaluation procese. 14. at 71. She accepted the conciulos that there were
'aajor osissions ant major deficiencias and serious flers' with the protester's proposal and did met 1 stand to svtistitute her judg3ent for that of the 55u evaluatore. M. et H.
7.
The memor ardus prepared by the. first evoluter screening the protester's proposal states:
10 range's] proposal cannot be evaluated due to non-compliance with the numerous requirements of UP. Tender's proposal was not to the required format plus variou Iteas nre vague or staply set addressed to odoquetely evalute the vendor's ability to seet all requirements u specified in settlee C of 177.
Protest Flie. Exhibit 24 Tab C.
The memorand.m prepred by the second evaluator states:
10 range], one of the efferers.
.. did not conform to the 5
aandatory specifications u stated la Part 11 Section 1, paragraph 20 and 23 2.s.1 of the subject solicitation. Im order to have an acceptable proposal, the of ferot eust have set all the aandatory regstrements set fortb la Section C of the solicitettoe document.
The offerer vu to repeat each requirement, verbatte. la the order it was listed in the Stateneat of Tork, secties C of the solicitation document and af ter earh of the requirassats listed, was to provide a statament with substantiating rete.ances of his st'111ty to meet ear.h of the requirements. N refoce. [0rarge's) prcpesal is considered non-responsive to the... If? and the S$U to unable to evaluate their proposal.
Id.
These two memor andums are dated June 2 1983. Following their Uecution, ne f ur the r evolustlee vu ande of the protester's proposal franscript at 71 73. 607, 413. 429.
N Competitive Page Deterninstion B.
Vtan the technical evaluatiou were coepleted, prepstations were made for a meeting of the Source Selectlpo Mvisory Council (SSAC). The Sin clairman, the contracting officer and the contracting specialist propred brie fing charts for presentation to the 15AC. Transcript et O.
415 19.
Individual charts were
{r epared for these proposals which had received a complete technical eva2uation but not f or proposals whicA had
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only been screer:ed but not further evaluated. Protest File, tahibit 23. On June 17, 1988, the SSAC net to discuss the procurement. Protest File.
Exhibit 22.
The meeting was attended t council, the $$ts chatruan, 'y the 15AC chairman, two other eenbers of the two other mesbers of the $113 the coritracting of ficer and the contract specialist. M.
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thaint the seettag of the stAC se June 17,1968, the 15E3 chaf tsan reviewed the specia.11y prepared brief f r.g charts daaling with the propepels etich had received a complete techalc.a1 evaluatlos.
Other proposals which j
the $sa chairaaa bad previously coactuded were est susteettble of a i
complete evaluattom were then discussed as a group. Protaster's proposal I
vas included la this gresp. Tran. script at 9b96, 420. The Esta chairmaa l
rec ensead ed to the SSAC that these proposals be allainated. Protas t File, tahibit 22 at 128 Treascript at 470. It is unclear from the record vt, ether protester's tet.hnical proposal was discussed la any detall at this meeting of the $1AC. The memorandes for record states salys 154C members then discussed the taalficatteu of eltainating these preposals at tble time and questioned vt. ether er not some er all proposals c ould be made acceptable through the negotistion/discumstee process. Af ter eoee diseassion, thef t was unarlsous agreement that these propesels were unacceptable and could not be made acceptable by meaningful discussions.
Fretest File, tahlbit 22 at 2.
The second evaluator ass! ped te screen protester's propesal was prestat at the $1AC nesting on June 17. Be stated that the protester's proposal was included in a brief discu.ssion et the l
I group of prr,posals whieb the $513 chatraan did met consider capable of to-depth evalue t t oa.
Be recalls auvering some questtor.s of a general rature put te ble by the clairsas of the $$AC and one asaber regarding the the pos sibili ty that these proposala could be evaluated er were camble of corr ection.
It is bis recollection, bovever, that these questlocJ vere not vender specific and that the satire discussloa sogarding these propesals did l
not last more than fif teen er twenty minutes. Transcript 92-94.
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10.
The contracting of ficer ter this procurament testified that the I
chatrams of the 55AC, vtio, like herself, is also a contractics of ficer, made the competitive range determinattom.
Upon further asestionteg, abe a t t ribut ed the dettelon lu t aad to the $1AC S teelf but acted that the clairman of the S$AC elped the coecti's documentatloa. Trar4 script for l
July 27 bearing at 11b17.
The pretast flie contatu a oesorandum for I
record s!ssed by the same 55AC chairman, dated Joe 17, 1944, with a evbject line as fo11sve
'Competittee Farge Detersitatten,1.rF F49641-48-10197.'
The !!nal paragra ph of tha seac r asd a s t a t as t *1 have determined that the propsals met all the mandatory requineaects and are within remaining the ccepetitive tar 4e.'
Frotest File, Exhibit 17.
11.
The SLI3 sesber vbe at t ended the meeting of the SSAC on June 17, and who testified regard 1r.g the discussion of protester's propsal at that meeting (see floding 9 above) stated in a pretrial deposition that be telieved the 154C thatraan made the deterniutlee 'about vtat contracters m14 remala la the competitive tar 4e ared vtich would be placed outside of the coe;*titive range.' Transcript at 46-37, 91, 97.
At the serit bearing for this pretast, this lodividal retracted his statement that the i
l c oepe ti tive r ar.g e determination was made by the chairman of the 11AC. The I
retraction was said to be based upon his revlev of the regulations and a conversatloa yttb the contracting officer who told his she had made the de t e rs t r.a t t en.
Id. at 111.
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1e avbsequest taattooey, the contreeting efficer qualified her wrlier stateneet that the deterslaation had been made by the SSAC and docuneated by the council cAatrina is his signed determinattom. $be cont end ed that abe was set thanging ber original statement that the council ande the determination but insisted that she berself made the 40mpetitive range deters 1 nation at the meettag of the 15hc ce June 17.. She explataeds And what 3 vsa trying to emphasise was that it is not a decistes that 1 meia en aqy own, but rather I take under the advisamaat of the Source Selection advisory Council what their recommendations that are being briefed at that particular meeting....
It is a group decision that is ande. Certsialy, there was no disagreseest le this particular 1 Jtance. [In a] bypothetical situstina, if there would have been a dissgTeement as to vbo should be kept la and who should be tept out, them I vov14 have ande the final datoriination.
So, la e very simplistic way, yes, the Contracting Officer makes the determination, but not of her ove accord. I guess that's what l's trylag to say.
Id.
at 47 44.
The toetracting of ficer later explained on cross-ernalnation IEat la stating that the detersiution vu not made of "ber ova accord
- she did not mean to sagast that it was not a free detiston but only that it was not a unilateral decision made without consideration of the advice and r
recommendations of the $513 and the SLC. 14. et 84. As to the coepetitive i
range detereinatioe signed by the thatrsaa of the $$AC, the contracting officer esplained that it was prepared by the contract specialist for the thei rman's signature although it would have been scre appropriate had it been for har signature er for both her signature and that of the chairman.
la any event, she stated that she considered it a "harlalass document that would stoply go la the file.' H.et455-54.
trarge's Hottee of twelusion Froe The Competittee tanae 13.
De June !!,1964, the contracting of ficer wrote the following to a letter to protaster:
1 Thank you for your proposal submission. Tout response did not comply with the requiremente stated la section L, paragraph 15 entitled ' Format and Instruction f or Propesal Preparation *.
Specifically, you did not repeat each s ta t enerst of work requirement and provide a statement as to bov Jour cc.epany would satisfy that particular requirement. Tour proposal could act be evaluated sad is cor.sidered ut.arceptable.
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puts aat to FAlt 15.2001 you are bereby notified that your propesal is ur. acceptable and a revision vill act be considered.
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- 3. Tour interest in this procurement has been appteciated.
Frotest File, tahlbit 14.
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14.
De protester understood the costreeting officer's letter to mean that its pro pset had met been evaluated and had besa rejected pre!!ainarily tecsuse it did met **et formatlag requiroseats. Transcript of July 17 bearing at it.
Protester thereupee conruited with counsel and authorised tour.sel to contact the contracting of ficer and request her to reconsider ber decision.
Id. et 13.
15.
Counsel initially comtscted the contracting of ficer ty telephone on June 30, 1988.
Transc ript of July 1) bearing at 115-14 At the contracting officer's r eques t. counsel coefirmed her r eques t for recoenideration in writing.
- 14. at 119.
The letter was delivered by courier that same day.
14.
It states le parts in your letter of 12 Jw.e 1988, you stated that because the proposal submitted by Ormege Systems did not repeat each statement of work requirement, the proposal could met be evaluated.
Although your statasent that Dratte systems did not repeat cath provistom as set forth in the solicitation is cor r ec t, it is Or ar4e Systeas' positioe that this is a einer informality vtich can be easily corr ec t ed.
N proposal sabeltted by Crarge Systems is carefully indesed ar.d strvetured to follow the format of the ee11 citation exactly. Phile Orange Systeas recogiisas the Government's concern that disorganised proposals are difficult to evaluate, the Oro.r.go Systems proposal did not fall late that category.
Frotester File, trhibit 15. Cernael's letter requested a reply by close of bus!Less en July 6, 19&8. Id. at 3.
16.
N contracting officer informed the 15 0 chaftsan of the protester's ccacerts.
N clairman, is tora s.sked the two evaluators who had performed the initial screeming af protester's preposal to document specifically the reasons sty they felt the protester's propesal was deficient and s.ould be elleir.ated from the coepetitive range. Transcript at 421-11.
This request teralted la e joint memoranda frce the two evaluators to the 55D clairman.
N meneranda describes alleg ed deficiancias found la Cruge's proposal. N introductory paragraph statest 1
N tress f olleving are e list of deficiemcies, concerns and mises11areous i t ems r equi ring clarification froe (Orange's]
pr c pe sal. #cte that these were found om the first screening only and it is assaed that substantially more problems would be found with the subject prepcsst if a coeplete evaluation was conducted.
py 1spression is that 10 range's] proposal is still vell outside the coepetitive ratse and a coepletely new proposal vould need to be submitted for the vendor to f all within the competitive range.
N probles still esists that the vendors [ sic] proposal is not in the required format and is difficult if not totelly impessible to evolute.
yrotest File. Idibit 18.
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m 'deficiencias, spacerts and miscellaaeous itane' listed la the joint memorandue provided to the 51g3 chairman by the evalastors vbo i
screened protester's proposal are based primarily es the marginal notes and ebeervations contained en thir tattial streening check lists.
This is
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readily c on!!rned by compartag the contants of the eemor ndus to the
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t.hecL11sts themseless.
Protest plie Exhibits 18, 24 et Tab G.
N joint memor ar>dua also contatas some additional observations relating to the p re t as t e r's actual ability to perfors any contract vbich eight be awarded.
The perties beve stipulated that the latter observations are in to +say J
relevant to the esclusion of the protester from the competitsee range.
Transcript et 291.
We, therefore, will met desc. ribe thee bere. N observa t ions eulled from the streening chec.L11s ts are, bovever, et considerable impo r t a. ace and are discused belev. The joint memorandus, dated July 7,1988, vu provided to the $513 chairman, vbo than passed it on to the contracting of ficer. M.at412.
18.
Ce the af tenoca of July 6, la na ef f ort to garner support for Crange, e asall ksiness, e reprasentative of the protester ettempted to telephone r esponden t's small sad disadvantaged business specialist. N specialist was unavailable at the time but was uked to retura protuter's call.
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- fact, the individual coetected by the protester had responsibilitas not only for small busloess contracting but also had sepervi sory responsibilitias ever the contracting afficer bandling this p r oc ur emen t.
Trar. script et Jaly 27 bearing at 144, ISS. The contracting of ficer's supervisor arranged for her to participate la the call vbich he returned that same day to the pretaster. M.et3131.14849.
19.
After some pr ellsina.ry remarks froe her supervisor, the contracting efficer tocA the principal role la the telephone conference of July 6 with the p rot es t er's representative. W tastified that in this conversattom she attempted to expl.ala that the protester's proposal had r eceiv ed u lattial acrosains by the technic.a1 taas and been rejected. It therefore did not receive the thorough evaluattee accorded to other preMeals ubich passed the initial screentag. She also contends that she orplained the latent of the June 12 letter, namely, that betsdee the proper format vu not is11oved is repeating each stateneet of vsrk requiremant, there were many omlesions.
Id.
et 100. m contracting of ficer also testified that abe told the protUter's representative that abe 'suuld send a letter givind addittomal supplemental information.' M.et103-4
- 20. A letter was provided h tbs toetracting officer ce the following day. It vai addressed to counsel for the protester and references cour.sel's letter of J ur.e 30 and the telephone conference with protester's representative 6s the previous day. It states is parts ry letter, dated 12 June 1984, to Drange Systems advised that their proposal vu unacceptable and therefore could not receive further considerstlen in the evaluation and svard process.
Through subsequent discussions with yourself arvd jprotester's representative], I reallee the latest et ey letter was not clear as a result of overger.er:11:stine....
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to elarify my 22 June 1964 letter. Orange $yatens preposal vu eensidered outside & competitive targe based on techetcal cor.s i de r a tions.
The proposal coetained mejor techsteal de fieleacias and omissteaa and to have c.casidered & propeaal further voeld have required virtually e seu proposal subelfales.
These de ficiw.cles and omissloas etre presumed to be the reemit of not fellerind the prescribed forest as outlined la Secties L.
Protest File. Exhibit 17.
The letter does met provide any specific 1aformatica regarding W major t eeAnlaal deficiencias trad omissions to which it refers.
21.
By letter dated July 13, 1984, to the contracting efficer.
Orange's president erplained that her letter of July 7 had only served to confuse the protester. Be vretes Frankly, et this point our company is quite coefused. We fe not n.now vtetbar your panel did or did not review our propos6 se the serits er vbetber it simply determined that the merits were not easily evaluated and rated bas ed on formattias, and accordingly renceed our efter free the competitive range. la thle circumstance. Orange has been provided with no clear buts by your of fice to judge rhether Federa.1 and Air Force procurament rules and procadsres were properly adhered to er ebetber Orange's preposal was fairly considered. lased on your July 7 totter. It is clear that we vill not receive any information to fori e basis for these judgements untti ve receive a debriefing by you and the panel en the specifle de fielencias and omissions it found to reject our proposal as 'outside the competitive range *.
Protest File. Exhibit 19 at 1.
22.
The contracting officer responded to Orange's latter of July 13 with a telephone call to W pruident of orange on July 18. By that time she had before her what abe roterred to as a ' technical evaltation report' vbich later was ident!!!ed by rupondent as the joint memorandue of July 7 prepared by the 15I3 evaluetors. See respondent's letter of July 29. 1968, to the Sce.rd and Fretuter's settee la opposittee to requested protection, filed with the Board on July 28. 1984. Drawing f ree the tomtents of the jolot memortodue of July 7. the contracting ef ficer vu able to provide Crartge with some speelfic an.aspies of vbere its proposal was ter.sidered to ha.e asjer do!!ciemelas.
Trar4cript at 110-13. Ce July 21, 1984. Orange filed this pretaat alleging, inter alla, that the areas of ee!!clency outlined by the coetracting officer to the president of Orar4e la this conversation are either addressed le the proposal er are so incotseqwatial as te negste the contracting ef ficer's characteriaattoe of ties u major deficiancies. Protest at 4.
'A ftetericles In Protester's Proposal 23.
The protester odeits that it failed to comply with the requirement la sectice L et the selleltation to repe a t verbatte the aar da t ory requirements of section C t.ef ore addressing that requirement le j
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Ubile the protester undoubtedly rea a risk in faillag to repeat verbetta the mandatory requirements of sectice C before addressing then la its
- proposal, nevertbelass this error did not render the proposal unintelligible. la this case we flod Orange's technical proposal to be well strutured and to follow ta an outly intelligible fasbine the actual format of sectica C of the solicitetton. Protest p!!s, Izhibit 12. Tabs B and C Transcript 155-44, 458-89.
24 The joint memorandum of July 7 prepared by the evalustors vbe screened Crar,ge's proposal statas that Druge failed to address certata sandatory requirements.
The actual r equir eeen ts la question and the docuen t a tion and testimony offered by the protester to dispreve the cont en tions of the evaluators are subject to la casere treataeet since they involve procurement eensitive taforsation.
lovever, after revievlag the pertineet sectior;s of protester's proposal and beartag the tastimoey of protester's coordinator for federal mortattag, we find that those mandatory retvirements of the ty? vtitch the $50 evaluators in their memorar.dua of Jely 7 esid were not addressed voce, is fact, addressed by Orange la its propesel.
Protest File, Exhibit 12, Tabe 3 nad Ct Transcript 155-84, 458 49.
li.
Slallarly, having beard the estensive testtaooy of the eve SSES evatusters regarding the entries made on their tattial screentr6g chedlists and regard!r.g tre specific alleged deficiencies described la thalt jelat memorandum of July 7,
1988. we find that some of these observations or concerts pr ecluded the tsu free testimulad with the furtber evaluation of the protester's proposal after its lattial screentag. Certain pereelved weaknasses is the preposal any af fect the rssMr.g of protester's proposal vis-a vis other propessis, Bovever, we de att find that these alleged deficiencies, taken altber 10dividually or evaulatiesty, are of suf ficient magnitude u to render further evaluation impossible.
Transcript at 128-47,132-83, 293-3M, 361 90, 395-408.
26.
In te.stifylag regsrding the contents of their screening chedlis t ar d their memorandus of July 7, the $5t3 evaluators respor.sible for streening protaster's propesel azpressed coecern severs) times regarding the adequacy of the protester's understanding of certale mandatory r equi r emen t s or the ambigvity of certale provistou in the preposal vtilan address these r equir emen t s.
Transcript 310, 242, 313 15, 318, 367-64, 376 24, 371, 167, 139-40, 263 4 4, 334 34, 343-47. Bovevet, the protester la its preposal clearly manifests an latent to coeply with all requirements, terss, and conditions of the 17p. It states:
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l C'3CA pe. 9576-7 13 Orange Systems bas reviewed all terne and condittor.s set forth s p d fically in the stattKDrf or voas (Secties C) and is dully agr eea ble to all pre UsT~ede containe3 taerein. All euch terms and condittees and deflaittons are bareky tocorpersted late
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n of Selleitation and all Edibits are hereby incorporated late this T10DrlcAL r3cro$AL, Protest File. hhlbit 11, Tab C at 1413.
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17.
There are in this procurosant etbar proposals vtich have been successfully screened which maalfast a siellar latest to comply with the provisions of the EF7.
Where certala provisions la these proposals have b.een found to be vasse, ambiguous or othervlae deficient, the res ont has issued clarificattoo requests or deficiency reports. Protest F1 e. Edibit 16.
The 'clartitcattoo roquat* la defined by one of respondant's witnesses i
a request for clarlfication vben *ve de not have e fira understandtag of
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u vtat the contractor Is stetig J e sasponse to e soetion la bis proposal.'
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- deficiency report" is issued *...ea a contracter either cetttet something er responded to it tacorrectly.' Trar. script at 305.
Di scuss ion The Author of The coepetitive Range Deterstnetf.oe It is the contentlee of the protester that the competitive rarsgo d e t e rs t e.a t iot vtich led to the anclusloe et protester was not made by the contracting officer.
To agree that the ortglaal formal detertination of i
Jur,e 17,1958, vu not made by the contracting of ficer.
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tervlation upressly providass
- The esot r ac tig officer shall deteritee vbi ch proposals are la the ccepetitive range for the purpose of
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cc,nductlas writtee er oral discussion (see 13.410(b)).* Federal Acquisittee Regulattoe (70) 15.609(s). a4 CF1 13.609(s) (19g7). File docusentation and ently t u t taoor of the eoctracting ef ficer and of a Ley seater of the $sta all tend to confirm the fset that the original forsal coepetitive range I
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detereiratlee was not made by the contr6cting officer. Findtags 10. 11.
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The une 111.3 mester later reversed his positics and the contractly of ficer stteepted to erplata ber earlier tas timoey. Findtage 11,11. Ve find this later testinocy, bevetar, esif.ser,rtag sad larking the credibility vtich we attath to the ea-rlier and more spontazeous sta temen ts.
For this teuen we c or.c l ude that the original fcraal competitive rar.se determination was made on June 17 1944, by the SSAC dairmam and t ha t, therefore, the above me n t i er.e4 Fu requirement vu not set initially. We further conclude that at t t.s t time, the cocetracticg of ficer coraidered that the coepetitive range i
d e t e rs t r.a t t oa vu the respoulbility either of the chatraan of the $$AC er f
tre $$A0 itself.
t It is clear, however, f ree the testimony of the contractly of ficer, vten read as a whole, that she concurred le the original coepetitive range dettreinstion et June 17, 1988, and later, vben c. halter.ged on the matter 1 210 e,,,
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BOARD PROTEST D ECI SIO N S 1988 BPD CSBCA Iho. tS N P 12 during the tourse of this protest, adopted the determination, without qualifiestie% as bet evs decision. Finding 11. bis la effect corrects, albeit be stedly, the initial violattee and prompts us to review the determinettaa iteelf for comp 11pce with statute and regulation.
N Bast Of Cruse's tejeettoe Frw N Competitive 3. arc N SSD chairman recoemended to the 15AC that Orange's proposal be rej ec t ed free the teepetitive range. Finding 9.
Se and the tre evaluators vbo bad sc r eer.e4 Or ange's proposal had concluded that it could not be ev alua t ed beyond the screeeleg stage. Findings S. 7.
The record, bovever, shows cocJiderable confusion regar111ng the raasoa vby protester's proposal was not considered capble of further evaluation after its lattial screening.
N first evaluator stated la her aeocrandum of June 2, that the propesal could not be evaluated due to non-compliance with numerous requirements of the 117. Flading 7.
N memorandua potes that the proposal not to the required format and that vertous items were not addressed er was tr, adequately addressed. Presumably, therefore, it is a result of Q tbase deficiencias that the proposal could act be evaluated.
The second evaluator stated is his menerandum that the protester failed to repost serbotta the requireeents of the statesant of work and provide a statament wi th references regerding its ability to meet these requirements. N evaluster concluded: *Nrefore,... the $5p is unable to evaluate their proposal.'
14.
Dis memorandum is puss 11ms. It purportedly was written after t5e second evaluator bad completed his analysis of Orange's proposal. It was to set out bis resaons supporting the receaser da tion to elistaate Druge f ree the eespetitive targe. Finding 5.
Although this evalua tor's screening checklist contained several etbar alleged defittencies, they are not sentioned la the memorandus at all as reasons vby the proposal could not be evaluated.
N chairman of the SSE3 vbo claimed to have reviewed personally the screening checu ists of both evalustors as well as Otange's proposal, c oricluded that the proposal could not be evaluated because of major omissions and deficiaocles and tiecause it was so lecMag to technital eerit.
Id.
N tever the various reasons were for cont.ludirq that Orange's prepesal could not be further evaluated, the chaf tsam of the 55t3 and his two evaluators r es ponsible for screening the Or ar4e proposal vote in agreeeert that it could not be fur ther evaluated. Nt conclusion was passed on to the contracting of ficer at an early juncture. The record shows that shortly thereaf ter and bef ore the 550 formally briefed the SSAC on the results ef its review of propcsels, the contrar.tir4 of ficer reviewed the streening tiecklists.
Bovever, this review was prompted by procedural N contracting of ficer in acceptirg the conclusion that Orarge's concerns.
proposal could not be further evaluated, relied upon t' e technical exprtise n
of the $53 and accepted the conclusion without question. Finding 6.
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1 Mething in the record ladicates that the SSAC was any more demanding of informatlen f rom the 1533 than the contracting of ficer vu ao for as the alleged i r.ed eq uac y of the prttaster's propesal was coecerned. N brief l
discussion of the tsu's recommendation to e11sthete Orange's proposal during the meeting of the ISAC vu of a general nature and not specific with regard to ariy of the propesals vbich the 550 chairsaa was re<~ Ming for elleinatloa. Finding 9.
Indeed, no briefing chart en Orange's proposal had evea been prepared. Finding 8.
The confusion u to sty protester's proposal was hot capable of further evaluation after its initial screening coetinued after the coe;4titive rang, determination made ce July 17. 1953. In esplalatts vby Or ange vss rejected f roe the competitive range, the coetracting of ficer's letter of June 22 r e flec t s the rationale of the second ev olu t or 's memorandum, namely, the propesal could not be evaluated because of Orarge's f ailure to repeat uc.h statement of work requitament and provide a statteent of bov it vov1d be settsfied. Finding 13. Understandably this prompted an toquiry free protester and its counsel. Findlege 14, 15, 18. An effort was made to clarity matters with a sutsequent letter and two telephone calls.
Findings 19, 20, 22.
In providtag these clarifica ti ons, respondent st andoned the pcsition taken by the second evalustor in his memorandas of Jur,e 2 and re;4sted in the contracting of ficer's letter of June 22. m given for ey Orar.ge's prcpesal could not be further evaluated af ter reason initial screer.ing vu mov elleged ' major technical deficiencias and omissier.s* vtica presumably were the
- result of not following the prescribed format as outlined in sectice L.'
Id.
To do not view this refineeent er clarification of respondent's position u cons ti t uting a redical thange in respondent's posilloe on the matter of vty the 55tJ recommended or the 55AC agt eed to the elimination of Orar4e f rom f urtber cor.siderstles. To bold that the basis for the rejecties that its propesal could not be evahsted beyond the initial of Or ar4e was screazirs pLue. This vu the eenclusion of the LSD and the recoma49.ation of its clairman vbich vu accepted by the WC and concurred in and eventually adepted by the coctracting of ficer berself during this protest.
It is ibe 'bottoe 11oe' ta the letters sent to the protaster by the c or. t r a c t ing efficer on June 22 and July 7.
It is this basis vbich we now erasine for purpesas of detersinies its acevracy and validity.
Tas Orarge's Prepe sal Ca;4ble Of Further Evahat t on?
On the sat t er of vtether Cre.nge's proposal could be f urther evaluat ed after s c r eer;1ng, the record abets a slow retreat by the two evahators responsible for the scre+ntog, Their seecr andums of June 2 unequivocally state t ha t the pr e p< sal could not be ev aha t ed. Finding 7.
Their joint nencrandue dated July 7 and vritten to d x umen t their reasons for r ee: amending the ellair.ation of protester f roe the coepetitive raras f alls short of the original conthston. It states 'The probles still en:sts that the ver. dors leic) proposal is not in the required format and is dt!!! cult 11 not totally 1spessible to ess kate.'
Finding 16.
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BOARD PROTEST D ECI SIO N S 1988 BPD-i Csaca sto. 95%F 14 l
impossibility to evaluate is mentiorsed is the stee sentence as the problem.
of complianca - with the r equired format. we assume that the alleged dif ficulty with evaluation is attritutstrie to orar4e's failure to fe11ev the required format.
La ve have already noted, bovever, respondent t 'rasted free that contention.
Flodtog 19, 20, 12. Further1 sore, we have 4 ed as f act that respondent's evn witnessas did not consider pretaster's fat. se to follow the required format as a major defictmey la the proposal. Finding 21.
On the other hand, if it is respondeat% contention that the alleged naar lepossibility to era.lus t e is ettttbuts ale to the other deficiencias sentioned by the evaluators la their memort dus of July 7 and not to the.
formatting issue, one s till cannet avoid er flag that t.be unconditional tapessibility to evaluate found la the memoundwas of Jane 2 bas been downgraded to a near lepossibiltry la the joint ourandum of July 7.
As the evaluators testified to detail regsding thef t screaning of protester's pre psal, it became increasingly app rest that they had themselves carried their analysis beyond the screMag procase and were already engsged in further evaluattom of tre proptval, bot"a spot cor. sider able time on their analysis. Finding 4.
Thelt recorded ccuments and their t es timony regarding these coesents-espet!sily vbers they r
consider ed tbe propossi in oeed of clarification-show e concera mot just vitb the saadatory require.aert s thas elves but with t.be degree of ef fec tieecess with whic.h Or ar4e was suppcsed to have set them. This ascoeda -
what the screening process involved. Finding 3 It is itself the start of a more subst antive evaluation.
The record does not support a conclusion that the deficiencias found by the evaluetors were sufficiently beyond torteettoe er improvement er otherwise not readily curable.
Becaus e these deficiancies are still -
procurement s ens i tive, we have not discussed thee in any detell la our findings of fact.
Te have, bovever, determined that bothing vbich the i
evaluators tave said or written regarding the protaster's proposal convinces es that it ns impossible to proceed vitb an evaluatice of Orange's proposal after the initial scr eening. Finding 15. Indeed, their understanding af the proposal, the time spent try thee revieving the propeaal, and several of thalt thoughtful consents regarding its contents cetvince us that they tarried their aralysis beyond the screectag process. We cannot, therefore, t
accept their conclusion that Orar.ge's propesal could not be evaluated beyond the screen 1hg stage.
It may well be that without further clarificatloa, the de f acto evaluation be Nm by the evaluators on certala aspects of Orange's proposal could not proc eed further.
Bovever, it rust be rece.gtised that la these instances, r e spondent 's review of Orange's propsal had alseady advanced beyond eere screening.
We have found that venders whose preposals were successfully screened in this procurement and vbo agreed to comply with the terms and conditions of the solicitation, were of f ered the opportunity to respond to clarification requests and deficiarity reports when provisioas in g
their propcsals required clarifications or evidenced oatssions or errors.
i Finding 27.
Te see no reason why Crange should not be efforded a stellar opportunity since the $$tt evolustors beve demonstrated that the proposal is in f act capable of evaluation beyond the screening etage.
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csacA me. 95 4 F 1.3 potwithstandly the testloony of his two evoluators and tholt abitt to posittee as evidenced to their memorandues of Jusie 2 and July 7. the 6
ct.a t rae of the 55E3 reasined of the fire convietton that the pretaster's pr cpes al could not be evaluated betevse of major eelsstor.s and 4tfleisteles and t.ecause it was of enn Saferior techalcal serit. De disagree with tble conclustoa.
The $$t3 chairmaa testified that in screening preposels, be was look ly for four
- things, namely, a testatesamt of the ta.nd s t ory l
r eq u! r esen t s, a statement of ecepliance, e stateneat of how the company wwld eccomplish the mandatory requiressat and supporting esseples of how this requirement is met in esisting contreets.
Se contended tbat in Orarge's propesal these four i t em.s were loc 11ag in all the aardatories.
Finding S.
The protester 6dalts that the res tatteest of the aandatory r equir ement s was celtted from its proposal.
Bovever, respondent's evn witnesses state tt.a t this deficiency was not s reasoa for the pretaster being escluded from the coepetitt ee rar.ge. Finding 23.
As to the other three elements sentioned by the $1E3 chairman as essential to a ruccessful screening, we do not agree that they were elssing in their entirety froe Crarge's propenal. De have found as fact that Crar,ge did address all the aandatc.ry require ents and also that Cr ays prowleed evidente of am intent to abide by all terse and t end i t t or.s of the solicitetton. Findicas 24. 16.
We, theref ore. reject as incorrut the $513 tj.alraan's con t er.t j on that Orange's propeaal was deficient to the degree alleged.
Stellarly, we reject bis c oriciusion, based as it to en this alleged defut, that Orarge's proposal could not be further evaluated.
In short, we find that the contention of the $1t3 chelrean and his two evaluators tbat Orarge's proposal could not be evaluated t4 yond its lettial screenly is ur.sup por t able to the If ght of f acts provan in this protast.
Fu r t he rmor e.
respordent has failed to show us a valld be.sts for rejecting the protester at this early juricture in the evaluattoo process.
N solicitation, t os ponde t 's Propesal tvaluation Calde, and the testimony of the of ficial who coeptie.d this toternal guidance all coefire that the felttal screeeing pre. cess was lateaded to deterstr.e if an ef ferer had addressed the mandatory requirementa of the Ef? and, in the event o! s t ak e s were detected, to determine if the proposals were beyond correctlen.
Floding 3.
In stopping the evaluation of Cratage's pre,posal at the screening phase on the sis tasen assump tion that the pr oposal tould not be further evalu ted, respondent acted c on t r ary to the solicitetten p r ovision and its own internal guidance regarding this phs.se of the evalua tion prxess.
This cor.s t i t u t e s a violettoe of the statutory requirement that ccapetittee p r o po s a".s t.e evalua ted t,ased solely on the factcss specified in the sol t e t t a t i on. 10 U.S.C 6 2KS(b)(1) (supp. Ill 1985).
Stellarly, it violates the regulattor. reflecting this statutory requirement, r.amely. 747 15.608(a). 48 CI"E 15.608(a) (1947).
Ve have previously beld that we vill not distur b o coetf M ting of ficer's detereir.at ten tha t a =endor should 14 removed frr,a the toepetitive rarse i f t ha t detarettss tion le tensor.able. Phoenis Asex t a t es, Inc., CIBCA i
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BOARD PROTEST D E CI SIO N S 1988 BPD l
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csace no. 9576 F 1
pos, 9190-P, 92$1.F. 68 1 SCA 1 20.455: Control Date corp., CSD3 me.
87 2 bCA 1 19,815. In this case the protester has proves that the 8880.P.
basis for the e11str.atloc of the protester f rom the competitive range is not s!sply unreasonable but v r oeg.
For this reason we are directing the of ficer to restore the protester to the ccepetitive rarge, seek contracting clari fic a t ions and condwe t discu.sslora u required, and othervsse proceed with the evaluation of Oratae's propcsal.
Decision The protest is granted.
Respondent is directed to restore the protester to the c ompe ti tiv e t arde and proceed with the procurement in accordance vitt sp;11 cable statutes and regula t f or.s.
Se revise respondent's procureaant avtberity accordingly.
Our order e.Jpending that authority.
issued orally oc. July 26, 1988, and confirwd in writir.g on July 27, 1988, is hereby revoked.
W T
Maloistrative Judge Ve concur C.
nph Chief Adainististsee J#dge
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