B-215461, NOV 27, 1984, 84-2 CPD 577

B-215461: Nov 27, 1984

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CONTRACTING OFFICER PROPERLY REJECTED TECHNICAL PROPOSAL SUBMITTED UNDER FIRST STEP OF TWO-STEP FORMALLY ADVERTISED PROCUREMENT SINCE PROPOSAL WAS REASONABLY DETERMINED TO BE UNACCEPTABLE FOR VALID TECHNICAL REASONS UNDER STATED EVALUATION CRITERIA. AN AGENCY'S ACCEPTANCE OF A PROPOSAL IN A PRIOR NEGOTIATED PROCUREMENT DOES NOT MEAN THAT THE SAME AGENCY'S REJECTION OF A SIMILAR PROPOSAL IN A SUBSEQUENT TWO-STEP FORMALLY ADVERTISED PROCUREMENT IS ARBITRARY WHEN THE RECORD INDICATES THERE WAS A REASONABLE BASIS FOR THE REJECTION. GROSS METAL CONTENDS THAT BECAUSE ITS TECHNICAL PROPOSAL WAS CONSIDERED ACCEPTABLE WHEN EVALUATED BY THE SAME ARMY COMMAND DURING LAST YEAR'S NEGOTIATED PROCUREMENT OF THE SAME ITEM.

B-215461, NOV 27, 1984, 84-2 CPD 577

CONTRACTS - TWO-STEP PROCUREMENT - STEP ONE - OFFERS OR PROPOSALS - EVALUATION - TECHNICAL ACCEPTABILITY DIGEST: 1. CONTRACTING OFFICER PROPERLY REJECTED TECHNICAL PROPOSAL SUBMITTED UNDER FIRST STEP OF TWO-STEP FORMALLY ADVERTISED PROCUREMENT SINCE PROPOSAL WAS REASONABLY DETERMINED TO BE UNACCEPTABLE FOR VALID TECHNICAL REASONS UNDER STATED EVALUATION CRITERIA. ESTOPPEL - AGAINST GOVERNMENT - NOT ESTABLISHED - PRIOR ERRONEOUS ADVICE, CONTRACT ACTIONS, ETC. 2. AN AGENCY'S ACCEPTANCE OF A PROPOSAL IN A PRIOR NEGOTIATED PROCUREMENT DOES NOT MEAN THAT THE SAME AGENCY'S REJECTION OF A SIMILAR PROPOSAL IN A SUBSEQUENT TWO-STEP FORMALLY ADVERTISED PROCUREMENT IS ARBITRARY WHEN THE RECORD INDICATES THERE WAS A REASONABLE BASIS FOR THE REJECTION.

GROSS METAL PRODUCTS:

GROSS METAL PRODUCTS PROTESTS THE REJECTION OF ITS TECHNICAL PROPOSAL UNDER SOLICITATION NO. DAAJ09-84-B-A129, A TWO-STEP FORMALLY ADVERTISED PROCUREMENT BY THE U.S. ARMY TROOP SUPPORT COMMAND, ST. LOUIS, MISSOURI, FOR THE SUPPLY OF CAMOUFLAGE SCREEN SUPPORT SYSTEMS. GROSS METAL CONTENDS THAT BECAUSE ITS TECHNICAL PROPOSAL WAS CONSIDERED ACCEPTABLE WHEN EVALUATED BY THE SAME ARMY COMMAND DURING LAST YEAR'S NEGOTIATED PROCUREMENT OF THE SAME ITEM, ITS PRESENT PROPOSAL MUST ALSO BE ACCEPTABLE. BECAUSE WE FIND THAT THE ARMY'S REJECTION OF GROSS METAL'S PRESENT PROPOSAL IS REASONABLY SUPPORTED BY THE RECORD, WE DENY THE PROTEST.

UNDER THE FIRST STEP OF THIS SOLICITATION, THE ARMY REQUESTED TECHNICAL PROPOSALS ON CAMOUFLAGE SUPPORTS, THAT IS, POLES, BATTEN SPREADERS, ADAPTERS, PEGS, CORD, CASE AND OTHER ITEMS NECESSARY TO ERECT TEMPORARY OR SEMI-PERMANENT CAMOUFLAGE SCREENS IN A MILITARY ENVIRONMENT. OF THE EIGHT TECHNICAL PROPOSALS RECEIVED BY THE CLOSING DATE, THE ARMY'S EVALUATORS FOUND THAT FOUR WERE ACCEPTABLE AND FOUR, INCLUDING GROSS METAL'S, WERE UNACCEPTABLE. UPON RECEIVING NOTICE THAT ITS PROPOSAL HAD BEEN REJECTED, GROSS METAL PROTESTED TO THE ARMY AND, WHEN THAT PROVED UNAVAILING, FILED A TIMELY PROTEST WITH THIS OFFICE. THE ARMY HAS WITHHELD AWARD PENDING THIS DECISION.

IN RESPONSE TO A PROTEST SUCH AS THIS, WE WILL REVIEW WHETHER THE AGENCY'S EVALUATION WAS FAIR AND REASONABLE, AND WHETHER IT WAS CONSISTENT WITH STATED EVALUATION CRITERIA. RADIATION SYSTEMS, INC., B-211732, OCT. 11, 1983, 83-2 CPD PARA. 434. WE WILL ORDINARILY ACCEPT THE CONSIDERED TECHNICAL JUDGMENT OF THE PROCURING AGENCY'S SPECIALISTS AND TECHNICIANS AS TO THE ADEQUACY OF A TECHNICAL PROPOSAL, HOWEVER, UNLESS IT IS SHOWN THAT THE AGENCY ACTION WAS ERRONEOUS, ARBITRARY, OR NOT MADE IN GOOD FAITH. GUARDIAN ELECTRIC MANUFACTURING COMPANY, 58 COMP.GEN. 119, 125 (1978), 78-2 CPD PARA. 376.

THE ARMY'S EVALUATORS CONSIDERED GROSS METAL'S PROPOSAL TO BE DEFICIENT IN THE AREAS OF TESTING, QUALITY ASSURANCE, AND MANUFACTURING PLAN. WITH RESPECT TO TESTING, THE EVALUATORS STATED THAT SOME TESTS ARE REPEATED TOO OFTEN AND OTHERS ARE OMITTED. FOR EXAMPLE, GROSS METAL PROPOSED A SALT SPRAY RESISTANCE TEST, WHICH IS NOT REQUIRED, AND PROPOSED TO AXIAL LOAD EVERY POLE TWICE, EVEN THOUGH AXIAL LOADING IS ONLY REQUIRED FOR FIRST ARTICLE TESTING AND ON A LOT BASIS THEREAFTER. ON THE OTHER HAND, GROSS METAL DID NOT INDICATE HOW IT WOULD HANDLE CERTAIN FIRST ARTICLE TESTING REQUIREMENTS AND THERE IS NO MENTION OF REQUIRED POLE DROP TESTS. THE EVALUATORS ALSO HAD A PROBLEM WITH GROSS METAL'S PROPOSED QUASI-FIELD TESTING, WHICH WAS NEITHER DEFINED NOR EXPLAINED, AND IN THE EVALUATORS' VIEW WOULD SERVE NO PURPOSE IN MEETING THE REQUIREMENTS OF THE SOLICITATION.

IN RESPONSE TO THIS ASPECT OF THE EVALUATION, GROSS METAL STATES THAT BECAUSE THE SOLICITATION REQUESTED IDEAS OR CONCEPTS THAT COULD HELP TO CREATE A BETTER PRODUCT, IT CANNOT UNDERSTAND WHY THE ARMY CRITICIZES ITS INCLUSION OF SALT SPRAY AND AXIAL LOADING TESTS, BOTH OF WHICH IT BELIEVES ARE RELATED TO THE ENDURANCE OF THE SYSTEM.

HAD GROSS METAL'S PROPOSAL INDICATED THAT IT KNEW AND UNDERSTOOD THE ARMY'S SPECIFIED TESTING REQUIREMENTS, WE WOULD AGREE THAT ANY PROPOSED NEW TESTING, DESCRIBED AS SUCH, SHOULD BE VIEWED AS PROPOSED IMPROVEMENTS IN THE TESTING PROGRAM AND EVALUATED ON THAT BASIS. BUT THAT IS NOT WHAT HAPPENED HERE - INSTEAD, GROSS METAL PROPOSED AN UNEXPLAINED MIXTURE OF SOME REQUIRED TESTS, UNNECESSARY TESTS, AND ITS OWN POORLY DESCRIBED QUASI -FIELD TEST, WHILE OMITTING OTHER TESTS THAT WERE REQUIRED BY THE SPECIFICATION. CONSEQUENTLY, WE HAVE NO BASIS TO QUESTION THE EVALUATORS' TECHNICAL JUDGMENT THAT GROSS METAL'S PROPOSAL DID NOT REFLECT AN ACCEPTABLE UNDERSTANDING OF TESTING, WHICH WAS A MATERIAL REQUIREMENT OF THE SOLICITATION. SEE RADIATION SYSTEMS, INC., SUPRA.

AS TO THE OTHER AREAS OF GROSS METAL'S PROPOSAL THAT THE ARMY FOUND TO BE DEFICIENT, THE EVALUATORS WERE PRIMARILY CONCERNED WITH THE LACK OF EXPLANATORY DETAIL. FOR EXAMPLE, IN THE AREA OF QUALITY ASSURANCE, THE EVALUATORS CONCLUDED THAT WHILE GROSS METAL'S PROPOSAL CONTAINED THE RIGHT HEADINGS, IT LACKED CONTENT. SIMILARLY, THE EVALUATORS FOUND THAT GROSS METAL'S MANUFACTURING PLAN DID NOT ADEQUATELY DESCRIBE SUCH EQUIPMENT AS BINS, HOPPERS, CONVEYORS, AND STAPLERS NEEDED FOR ASSEMBLY, OR FOR PACKAGING. GROSS METAL RESPONDS THAT THESE CRITICISMS ARE TRITE AND OVERLY CRITICAL, SINCE SUCH MINUTE DETAIL AS PACKAGING, STAPLERS AND HOLDING BINS ARE GENERALLY ASSUMED TO BE PART AND PARCEL OF EVERY COMPREHENSIVE MANUFACTURING AND ASSEMBLY BUSINESS AND ARE USED IN ITS OPERATION ON MOST BUSINESS DAYS.

WHERE THE SOLICITATION EXPRESSLY REQUIRES DETAILED INFORMATION, HOWEVER, IT IS THE RESPONSIBILITY OF OFFERORS TO PROVIDE ADEQUATE INFORMATION FOR THE EVALUATION OF THEIR PROPOSALS UNDER THE ESTABLISHED CRITERIA. UNIVERSAL DESIGN SYSTEMS, INC., B-196682, APR. 23, 1980, 80-1 CPD PARA. 290. FURTHER, WHILE INDIVIDUAL INFORMATIONAL DEFICIENCIES MAY BE SUSCEPTIBLE TO CORRECTION, THE AGGREGATE OF MANY SUCH DEFICIENCIES MAY PRECLUDE AN AGENCY FROM MAKING AN INTELLIGENT EVALUATION, AND THE AGENCY IS NOT REQUIRED TO ALLOW AN OFFEROR THE OPPORTUNITY TO REWRITE ITS PROPOSAL. SEE INFORMATICS, INC., B-194926, JULY 2, 1980, 80-2 CPD PARA. 8.

THE SOLICITATION EXPRESSLY REQUIRED THAT TECHNICAL PROPOSALS PROVIDE "PLANS AND DESCRIPTIONS OF TOOLING FIXTURES TO THE EXTENT THAT IT WILL BE POSSIBLE TO ASCERTAIN THAT THE PRODUCTION TOOLS AND FIXTURES USED WILL PROVIDE SYSTEMS MEETING ... THE SOLICITATION REQUIREMENTS. ..." HOWEVER, GROSS METAL'S PROPOSAL SHOWS ONLY RECTANGLES FOR PLANT LAYOUT WITHOUT ACTUALLY DESCRIBING THE PROCESSING EQUIPMENT THAT WOULD BE USED FOR ASSEMBLY AND PACKAGING, WHICH ARE THE PRIMARY FUNCTIONS GROSS METAL WOULD PERFORM IN ITS OWN PLANT BECAUSE MOST COMPONENTS ARE SUBCONTRACTED. SIMILARLY, OUR REVIEW OF THE RECORD SUPPORTS THE ARMY'S CONCLUSION THAT GROSS METAL'S PROPOSED QUALITY ASSURANCE PLAN LACKS EXPLANATORY DETAIL IN THE AREAS OF IN-PROCESS INSPECTION, VENDOR QUALITY CONTROL, AND END ITEM TESTING OF COMPONENTS. ACCORDINGLY, WE CONCLUDE THAT THE ARMY'S DETERMINATION TO REJECT GROSS METAL'S PROPOSAL WAS A VALID EXERCISE OF ADMINISTRATIVE TECHNICAL JUDGMENT.

WE RECOGNIZE THAT THERE IS AN APPARENT INCONSISTENCY BETWEEN THE ARMY'S REJECTION OF GROSS METAL'S STEP-ONE TECHNICAL PROPOSAL IN THIS CASE AND ITS ACCEPTANCE OF A SUBSTANTIALLY SIMILAR PROPOSAL SUBMITTED BY GROSS METAL UNDER A NEGOTIATED PROCUREMENT OF THIS ITEM CONDUCTED BY THE SAME INSTALLATION THE PRIOR YEAR. IT IS POSSIBLE THAT THE DISTINCTION BETWEEN THE TWO PROCUREMENT TECHNIQUES, TWO-STEP ADVERTISING AND NEGOTIATION, EXPLAINS THE DIFFERENT OUTCOMES AS THE ARMY URGES, ALTHOUGH WE CONSIDER THE NEGOTIATION PORTIONS OF THE TWO PROCUREMENT TECHNIQUES TO BE CLOSELY COMPARABLE. SEE WILTRON COMPANY, B-213135, SEPT. 14, 1984, 84-2 CPD PARA. 293. IT IS ALSO POSSIBLE THAT THE ARMY FAILED TO PROPERLY EVALUATE GROSS METAL'S PROPOSAL UNDER THE PRIOR PROCUREMENT, OR THAT THE CALIBER OF THE COMPETITION WAS WEAKER IN THAT CASE. WE NEED NOT EVALUATE THESE POSSIBILITIES, HOWEVER, BECAUSE EACH PROCUREMENT IS A SEPARATE TRANSACTION AND THE ACTION TAKEN ON ONE PROCUREMENT DOES NOT GOVERN THE CONDUCT OF ALL SIMILAR PROCUREMENTS. SEE RACK ENGINEERING COMPANY, B-208554, MAR. 7, 1983, 83-1 CPD PARA. 224. CONSEQUENTLY, A SIMPLE ASSERTION OF INCONSISTENCY, AND NOTHING MORE, DOES NOT SATISFY THE PROTESTER'S BURDEN OF AFFIRMATIVELY PROVING ITS CASE WITH RESPECT TO ITS CHALLENGE OF THE EVALUATION OF ITS PROPOSAL IN THIS PROCUREMENT. RADIATION SYSTEMS, INC., SUPRA.

THE PROTEST IS DENIED.

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    We dismiss the protest because it raises a matter of contract administration over which we do not exercise jurisdiction.
    B-414410.4

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