ML20236C253
| ML20236C253 | |
| Person / Time | |
|---|---|
| Issue date: | 12/03/1984 |
| From: | Norry P NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | Efros S GENERAL ACCOUNTING OFFICE |
| Shared Package | |
| ML20236B994 | List:
|
| References | |
| FOIA-85-675 NUDOCS 8707290385 | |
| Download: ML20236C253 (4) | |
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DEC 0 31984 o
Seymoer Efros. Esquire Associate General Counsel Office of the Emeral Counsel United States Emeral Accounting Office Washington. 0.C. 20548 Re: B-116110-Telos Associates Sid Protest re U.S. Nuclear Regulatory Commission Solicitation No. AS8-84-352
Dear Mr. Efros:
4 Taylos Associates (Tayloe) protested the award of the contract under subject
- solicitation (Edibit 1) to Ace-Federal Reporters. Inc. (Ace) by letter to you dated August 15.1984 (Ezhibit 2). Tayloe and Ace submitted the only bids (Eskibits 3and 4). Tayloe states NRC should have determined that Acs's bid tas unseasonable, waived the requiremmat for a bid guarantee l requested and made the anud to Tayloe. ERC's Asmast 30, 1984 letter (Exhibit 5 p'.
s and Tayloe's fkflure to si6mit a bid guarantee made Tayloe' price was reas thatTaylee's potest he summarily diser:ssed because Ace's s bid non-responsive.
Ace requested summary dismissal tay letter dated August 31,1984(Exhibit 6).
Tayloe respondedto NRC's request for summary dismissal by letter dated September 10 1984 (Exhibit 7). Ace's Septes6er 11,1984 letter (Exhibit 8), asserted that Tayloe's allegations ofled faith are untimely and clearly refuted by the attachments to Taylee's letter.
Following consi& ration of the requests for summary dismissal. GAD infonned NRC by telephone en hvember 7,1984, that the requests were denied and gave NRC 25 working dies Aroe November 7th to file a documented report responsive to
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the protest. SN first requested such a report by letter dated August 20, 1984, to Dr. Nuntie J. hFladino. Chairman U.S. Nuclear Regulatory Ceamission (Exhibit 9).
Accordingly.unare submitting (except for Exhibit 10 which NRC requests not be to counsel furbloe and Ace released ty teMD xmding a determination as to the releasability of portions of the decaumt dict may include proprietary infonention of competitors).
Tayloe's Bid tsNon-Responsive.
NRC issued asNestation No. ASB-84-352 on February 6.1984. Tayloe failed to provide the aqidred bid guarantee and has asserted that NRC should have waived thebid parantee requirement because of its perfonnance record as A M - lT-6 75~
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BIRDBS-675 PDR
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i 2-Seymour Efros the incumbent contractor. Your office has consistently held that a bid guarantee requirement is a material part of an IFB and, except as provided in procurement regulations, a procuring activity must reject as non-responsive a bid that does not conform with that requirement. United States Contracting Corp.
B-198095 June 27,1980. 80-1 CPD 446; Holm Well Drilling. Inc., B-207774. Oct. 22, 1982. 82-2 CPD 362; Consolidated Installations Cor).. B-202630, Apr. 20,1981, 81-1 CPD 301. FPR Section 1-2.404-2(f) required t1e rejection of Tayloe's bid except as provided in FPR Section 1-10.103-4.
That section describes four situations when noncompliance shall be waived unless there are compelling reasons to the contrary. Tayloe's request for a waiver was based upon its performance record as the incumbent contractor. That was not one of l
the four situations described in FPR Section 1-10.103-4. NRC was therefore reiuired to reject Tayloe's bid as non-responsive.
l Tayloe. in its September 10, 1984 letter to GAO, contends that waiver was required under FPR Section 1-10.103-4(a) because Tayloe submitted the only bid. Tayloe contends the bid submitted by Ace was a nullity because the price was unreasonable.
Two bids were received and, as shown below. Ace's prices were determined to be 1
reasonable. Hence, the situation described in FPR Section 1-10.103-4(a), that j
is, where only a single bid is received does not apply.
Ace's Bid Was Reasonable.
As provided in FPR Section 1-2.407-2 the Contracting Officer was required to determine whether the prices bid by Ace were reasonable. Using the price
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analysis techniques set forth in FPR Section 1-3.807-2(b)(1) as guidelines.
I where appropriate, the determination was made by the Contracting Officer on August 5,1984, in the light of all prevailing circumstances, as shown in the Sumary of Procurement (Exhibit 10).
The GA0 has made it clear that it will not substitute its own judgment for that of the Contracting Officer with respect to the determination of whether a bid price is reasonable. As stated in Cardion Electronics B-193610 July 22,1980, 80-2 CPD 56:
(T)he determination of whether or not a bid price is reasonable is a matter of administrative discretion which our Office will not question unless it lacks a rational basis or there is a showing of bad faith or fraud.
See also Hybrid Technology Group. Inc. B-215168 October 3,1984.
The Sunnary of Procurement (Exhibit 10) shows that a careful analysis of the prices bid by Ace, the sole responsive bidder, was made before the conclusion was reached by the contracting Officer that Ace's prices were reasonable and award must be made to Ace.
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Seymour Efros No Showing of Bad Faith or Fraud.
Tayloe's assertion that NRC's determination was made in bad faith is based on inferences drawn from false comparisons. First, Tayloe infers that NRC ignored the actual page rates being charged for the previous five months of stenographic reporting services in making its determination of price reasonableness. This assertion is without foundation as evidenced by Exhibit 10. Tayloe failed to recognize that the previous five months of perfomance involved two separate and distirct contracts. Contract No. NRC-21-84-353 included travel costs in the per page rates while -
Contract No. NRC-17-83-399 provided that travel be reimbursed based on actual costs. This is particularly noteworthy in that NRC did, in fact, utilize the actual prices under Contract No. NRC-17-83-399 with an adjustment for actual travel expenses incurred under the contract in making its determination of price reasonableness. The validity of Tayloe's prices under the two month interim procurement (Contract No.
NRC-21-84-353), for price comparison purposes, was also specifically addressed in NRC's price analysis. Second, Tayloe's comparison of its option prices (Contract No. NRC-17-83-399) with Ace's prices is irrelevant and misleading. The prices employed by Tayloe for this analysis, page 2 of their September 10, 1984 letter (Exhibit 7), do not agree with the actual option year prices under the contract and fail to take into account actual travel costs reimbursed by NRC. When actual per page rates are adjusted to reflect travel costs as shown in Exhibit 10. NRC projected a cost savings by award to Ace as opposed to exercising the option under the contract with Tayloe.
Tayloe's assertion that NRC refused to exercise the option in Contract No.
NRC-17-83-399 on the ground that the cost was unreasonable is in error.
The option was not exercised because the market survey conducted by NRC indicated better prices for the services were available in the market than those offered for the option period (FPR Section 1-1.1507(c) and (d)). This was borne out by NRC's analysis in the Summary of Procurement (Exhibit 10) showing a cost havings by award to Ace.
NRC has not sought to improperly foreclose opportunities for small business to compete for this procurement, contrary to Tayloe's allegation.
The need to have an unrestricted competition in this case is confinned by the fact that only one responsive bid was received, none from the small business community.
To support a finding of bad faith, the record must show by irrefutable proof that NRC had a malicious specific intent to injure Tayloe.
IFR. Inc., B-209929, May 17,1983. 83-1 CPD 524. Tayloe has not met that burden.
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Seymour Efros The NRC respectfully requests that the protest be denied.
original signed by Patricia Norry Patricia G. Norry, Director 8
Office of Administration Attachments:
Exhibit 1:
NRC Solicitation No. ASB-84-352 Exhibit 2:
Tayloe Protest. August 15, 1984 L
Exhibit 3:
Tayloe Bid Exhibit 4:
Ace Bid i
Exhibit 5:
NRC Summary Dismissal Request August 30, 1984 Exhibit 6:
Ace's Summary Dismissal Request. August 31, 1984 Exhibit 7:
Tayloe's Response, September 10, 1984 Exhibit 8:
Ace's Further Request to Dismiss, September 11, 1984 Exhibit 9:
GAO Notification, August 20, 1984 Exhibit 10:
Sumary of Procurement o
cc (w/out Exhibit 10)
Isham, Lincoln and Beale Counsel for Tayloe Associates Attention: Mr. Joseph Gallo Patton, Boggs & Blow Counsel for Ace-Federal Reporters. Inc.
Attention: Mr. Ronald K. Henry DIST:
EDO R/F DC R/F JRoe GCunningham PGNorry MLSpringer E alman
.JMattia' THagan KDavis RAvery DClark SECY 84-0856 P8randenburg (G.T.14754) teew
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