B-150898, JUN. 11, 1963

B-150898: Jun 11, 1963

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ESQUIRE: REFERENCE IS MADE TO YOUR FEBRUARY 25 AND MARCH 7. ESSENTIALLY WHAT IS INVOLVED IN THIS CASE IS A QUESTION WHETHER QUE ENTERPRISES' TECHNICAL PROPOSAL CONTAINED SUFFICIENT INFORMATION AND DETAIL TO QUALIFY AS AN ACCEPTABLE PROPOSAL. AS FAR AS THE AIR FORCE TECHNICAL EVALUATORS WERE CONCERNED. THERE WAS SUCH A LACK OF INFORMATION AND DETAIL THAT THE PROPOSAL COULD NOT BE TERMED ANYTHING OTHER THAN UNACCEPTABLE. THE QUE ENTERPRISES' TECHNICAL PROPOSAL AND NOVEMBER 9 ADDENDUM TO THE PROPOSAL WHICH WERE RECEIVED BY ROAMA WERE FORWARDED FOR CONSIDERATION TO THE REQUISITIONING ACTIVITY. WHICH REVIEWED THEM AND DETERMINED THAT THEY WERE UNACCEPTABLE. AT THE REQUEST OF ROAMA THE PROPOSAL WAS REEVALUATED AND THE UNACCEPTABILITY WAS CONFIRMED.

B-150898, JUN. 11, 1963

TO LEONARD L. PICKERING, ESQUIRE:

REFERENCE IS MADE TO YOUR FEBRUARY 25 AND MARCH 7, 1963, TELEGRAMS AND TO THE COPIES OF THE MARCH 11 AND 21, 1963, LETTERS TO ROME AIR MATERIEL AREA (ROAMA) THAT YOU SENT US RELATIVE TO THE PROTEST OF QUE ENTERPRISES, INC., AGAINST THE REJECTION OF THE TECHNICAL PROPOSAL SUBMITTED UNDER THE FIRST STEP OF A TWO-STEP PROCUREMENT COVERED BY IFB-30-635-63-101.

ESSENTIALLY WHAT IS INVOLVED IN THIS CASE IS A QUESTION WHETHER QUE ENTERPRISES' TECHNICAL PROPOSAL CONTAINED SUFFICIENT INFORMATION AND DETAIL TO QUALIFY AS AN ACCEPTABLE PROPOSAL. AS FAR AS THE AIR FORCE TECHNICAL EVALUATORS WERE CONCERNED, THERE WAS SUCH A LACK OF INFORMATION AND DETAIL THAT THE PROPOSAL COULD NOT BE TERMED ANYTHING OTHER THAN UNACCEPTABLE. IN THAT CONNECTION, THE QUE ENTERPRISES' TECHNICAL PROPOSAL AND NOVEMBER 9 ADDENDUM TO THE PROPOSAL WHICH WERE RECEIVED BY ROAMA WERE FORWARDED FOR CONSIDERATION TO THE REQUISITIONING ACTIVITY, WHICH REVIEWED THEM AND DETERMINED THAT THEY WERE UNACCEPTABLE. AT THE REQUEST OF ROAMA THE PROPOSAL WAS REEVALUATED AND THE UNACCEPTABILITY WAS CONFIRMED. SOME OF THE SPECIFIC REASONS THAT THE PROPOSAL WAS TERMED UNACCEPTABLE WERE THAT IT DID NOT PROVIDE SUFFICIENT DETAIL ABOUT THE ANTENNA FEED, PEDESTAL AND SERVO CONTROL COMPONENTS. THESE AND OTHER REASONS WERE REPORTED TO YOU BY THE CONTRACTING OFFICER IN A LETTER OF MARCH 1, 1963.

AS A RESULT OF SEPARATE INFORMAL MEETINGS YOU AND A MEMBER OF QUE ENTERPRISES HAD WITH REPRESENTATIVES OF THE AIR FORCE AND OUR OFFICE ON APRIL 25, 1963, ARRANGEMENTS WERE MADE FOR AN INDEPENDENT EVALUATION OF ALL THE TECHNICAL PROPOSALS AT THE AIR FORCE LOGISTICS COMMAND (AFLC), WRIGHT-PATTERSON AIR FORCE BASE, OHIO. THE AFLC SERVICE ENGINEERING DIVISION UPON COMPLETION OF ITS REVIEW CORROBORATED THE PREVIOUS DETERMINATIONS THAT QUE ENTERPRISES' TECHNICAL PROPOSAL WAS UNACCEPTABLE.

THE MATTER OF WHETHER TECHNICAL PROPOSALS ARE ACCEPTABLE IS ONE WHICH IS VESTED IN THE PROCURING AGENCIES WHICH ARE BETTER QUALIFIED THAN WE TO EVALUATE THEM SINCE WE DO NOT HAVE ENGINEERING COMPETENCE. SEE 40 COMP. GEN. 35 SUSTAINING A PROCURING AGENCY DETERMINATION THAT A TECHNICAL PROPOSAL SUBMITTED IN A TWO-STEP PROCUREMENT WAS DEFICIENT AND UNACCEPTABLE. THEREFORE, IN THE CIRCUMSTANCES, WE WOULD NOT FEEL JUSTIFIED IN QUESTIONING THE DETERMINATION MADE IN THIS CASE.

MOREOVER, IN LETTER OF MARCH 11, 1963, TO ROAMA, YOU STATED THAT QUE ENTERPRISES WAS NOT ATTEMPTING TO FURNISH AN EXACT DESIGN IN ITS TECHNICAL PROPOSAL. THAT STATEMENT ITSELF APPEARS TO CONCEDE THAT THE EQUIPMENT IN THE PROPOSAL WAS NOT DESCRIBED AS COMPLETELY AS IT MIGHT HAVE BEEN. WHILE THIS MAY HAVE BEEN DONE IN AN ATTEMPT TO PREVENT DISCLOSURE OF THE DESIGN TO OTHER PROPONENTS, PROCEDURES WERE AVAILABLE IN THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) TO OBTAIN THAT PROTECTION. ASPR 2-503.1 (B) (I) ADMONISHES PROCUREMENT OFFICIALS THAT "EVERY PRECAUTION SHALL BE TAKEN TO SAFEGUARD TECHNICAL PROPOSALS AGAINST DISCLOSURE TO UNAUTHORIZED PERSONS.' ALSO, ASPR 2-503.1 (B) (II) PROVIDES THAT "TECHNICAL PROPOSALS SUBMITTING DATA MARKED IN ACCORDANCE WITH 3-109 WILL BE ACCEPTED AND HANDLED IN ACCORDANCE WITH 3-109 (A).' ASPR 3-109 STATES:

"/A) REQUESTS FOR PROPOSALS MAY REQUIRE THE OFFEROR TO SUBMIT DATA WITH HIS PROPOSAL WHICH MAY INCLUDE A DESIGN OR PLAN FOR ACCOMPLISHING THE OBJECTIVES OF THE PROCUREMENT. SUCH DATA MAY INCLUDE INFORMATION WHICH THE OFFEROR DOES NOT WANT DISCLOSED TO THE PUBLIC OR USED BY THE GOVERNMENT FOR ANY PURPOSE OTHER THAN EVALUATION OF THE PROPOSALS. * *

THE PROVISION THEN DESIGNATES AN APPROPRIATE LEGEND AN OFFEROR MAY INCLUDE ON HIS DATA TO RESTRICT ITS DISCLOSURE AND DIRECTS:

"* * * DATA SO MARKED SHALL BE USED ONLY TO EVALUATE PROPOSALS AND SHALL NOT BE DISCLOSED OUTSIDE THE GOVERNMENT WITHOUT THE WRITTEN PERMISSION OF THE OFFEROR EXCEPT UNDER THE CONDITIONS PROVIDED IN THE LEGEND. * * *"

FURTHERMORE, UNDER THE TWO-STEP PROCEDURES, EACH PROPONENT SUBMITTING AN ACCEPTABLE TECHNICAL PROPOSAL IS INVITED TO BID ON THE BASIS OF THE GOVERNMENT SPECIFICATION AND THE PROPONENT'S ACCEPTABLE TECHNICAL PROPOSAL AND NO DISCHARGE IS MADE IN THE INVITATION OF THE CONTENTS OF THE TECHNICAL PROPOSAL.

WITH RESPECT TO THE CONTENTION THAT AN EFFORT SHOULD HAVE BEEN MADE BY THE CONTRACTING OFFICER TO BRING THE QUE ENTERPRISES PROPOSAL UP TO AN ACCEPTABLE STATUS, ASPR 2-503.1 (B) (V) PROVIDES THAT IF A TECHNICAL PROPOSAL IS NOT REASONABLY SUSCEPTIBLE TO BEING MADE ACCEPTABLE, IT SHOULD BE CLASSIFIED AS UNACCEPTABLE AND NO DISCUSSIONS OF IT NEED BE INITIATED. WHILE YOU MAY DISPUTE WHETHER THE TECHNICAL PROPOSAL WAS "REASONABLY SUSCEPTIBLE TO BEING MADE ACCEPTABLE," THAT WOULD INVOLVE ENGINEERING JUDGMENT AND IN SUCH MATTERS, AS WE HAVE INDICATED BEFORE, WE GENERALLY DEFER TO THE DISCRETION AND JUDGMENT OF THE OFFICIALS OF THE PROCURING AGENCY.

AS TO THE CONTENTION THAT AN AMENDMENT ADVISING THE TYPE OF INDICATE POSITIONING TO BE MADE A PART OF THE SYSTEM WAS NOT ISSUED AS WAS INDICATED AT THE PREPROPOSAL CONFERENCE, OFFICIALS AT THE CONFERENCE HAVE NO RECOLLECTION OF INDICATING THAT SUCH AN AMENDMENT WOULD BE ISSUED BUT, IN ANY EVENT, NONE HAVING BEEN ISSUED ON THAT POINT, THE WAY WAS LEFT OPEN TO EACH PROPONENT TO SELECT AND PROPOSE A SYSTEM THAT WOULD MEET THE PERFORMANCE REQUIRED BY THE GOVERNMENT SPECIFICATION.

IN SUMMARY, QUE ENTERPRISES' TECHNICAL PROPOSAL WAS NOT ACCEPTED BECAUSE IT DID NOT SUPPLY SUFFICIENT INFORMATION AND DATA SHOWING HOW IT WOULD MEET SPECIFICATION REQUIREMENTS. IT MAY BE THAT THE PROPONENT IS RESPONSIBLE AND THAT IT EMPLOYS THOROUGHLY KNOWLEDGEABLE AND COMPETENT PERSONNEL, BUT THE AVENUE WHICH WAS PROVIDED FOR THE PROPONENT TO DEMONSTRATE ITS ABILITY TO MEET THE SPECIFICATIONS WAS NOT CLOSELY FOLLOWED BY IT AND AS A RESULT OF ITS INATTENTION TO DETAIL IT PLACED ITSELF IN THE POSITION IT NOW FINDS ITSELF. IN THAT LATTER RESPECT, THE LETTER REQUEST FOR TECHNICAL PROPOSALS IN PARAGRAPH 9 "STRONGLY URGED" THAT THE TECHNICAL PROPOSAL BE COMPLETE IN ALL RESPECTS AND AMENDMENT "A," WHICH WAS INCORPORATED BY REFERENCE INTO THE LETTER REQUEST FOR TECHNICAL PROPOSALS, PROVIDED IN PARAGRAPH "E" THAT THE PROPOSAL "SHOULD DESCRIBE IN DETAIL" THE METHOD OF FULFILLING THE SPECIFICATION REQUIREMENTS, AND THAT STATEMENTS THAT THE OFFEROR CAN OR WILL COMPLY WITH THE SPECIFICATION WILL NOT BE CONSIDERED SUFFICIENTLY DESCRIPTIVE.

IN VIEW OF THE FOREGOING, WE CONCLUDE THAT NO FURTHER ACTION IN THIS MATTER IS REQUIRED BY OUR OFFICE.