B-152170, OCT. 14, 1963

B-152170: Oct 14, 1963

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ESQUIRE: REFERENCE IS MADE TO YOUR LETTERS OF JULY 30 AND SEPTEMBER 4. YOU HAVE PROTESTED THE REFUSAL OF THE CONTRACTING AGENCY TO CONSIDER FOR AWARD AN ALTERNATE PROPOSAL SUBMITTED BY VAP-AIR UNDER THE SUBJECT REQUEST FOR PROPOSALS. ALTHOUGH THE REQUEST FOR PROPOSALS REQUIRED THE OFFERED STATIC INVERTERS TO BE THE SAME AS THOSE WHICH WERE DEVELOPED. TESTED AND APPROVED UNDER A MORE STRINGENT SPECIFICATION BEFORE THE REQUEST FOR PROPOSALS WAS ISSUED. WHILE THE AGENCY MAY HAVE BEEN ABLE TO REDUCE ITS STANDARD BETWEEN THE TIME THE EQUIPMENT OF YOUR FIRM AND TWO OTHER FIRMS ORIGINALLY WAS QUALIFIED AND THE TIME THE REQUEST FOR PROPOSALS WAS ISSUED. WHILE YOU INDICATE THAT THIS PLACED VAP-AIR AT A DISADVANTAGE BECAUSE IT DEVELOPED A MORE SOPHISTICATED STATIC INVERTER THAN ITS COMPETITORS AND WAS HELD TO THIS HIGHER STANDARD DESPITE A REDUCTION IN REQUIREMENTS IN THE REQUEST FOR PROPOSALS SPECIFICATIONS.

B-152170, OCT. 14, 1963

TO DAVID N. WEBSTER, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTERS OF JULY 30 AND SEPTEMBER 4, 1963, PROTESTING FOR THE VAP-AIR DIVISION OF VAPOR CORPORATION THE AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS 63-39.

YOU HAVE PROTESTED THE REFUSAL OF THE CONTRACTING AGENCY TO CONSIDER FOR AWARD AN ALTERNATE PROPOSAL SUBMITTED BY VAP-AIR UNDER THE SUBJECT REQUEST FOR PROPOSALS. WE UNDERSTAND THAT THE ALTERNATE PROPOSAL PROPOSED TO TAKE ADVANTAGE OF THE MORE LIBERAL SPECIFICATION INCLUDED IN THE REQUEST FOR PROPOSALS THROUGH THE UTILIZATION OF FEWER AND LARGER COMPONENT PARTS IN THE STATIC INVERTERS, ALTHOUGH THE REQUEST FOR PROPOSALS REQUIRED THE OFFERED STATIC INVERTERS TO BE THE SAME AS THOSE WHICH WERE DEVELOPED, TESTED AND APPROVED UNDER A MORE STRINGENT SPECIFICATION BEFORE THE REQUEST FOR PROPOSALS WAS ISSUED. HOWEVER, WHILE THE AGENCY MAY HAVE BEEN ABLE TO REDUCE ITS STANDARD BETWEEN THE TIME THE EQUIPMENT OF YOUR FIRM AND TWO OTHER FIRMS ORIGINALLY WAS QUALIFIED AND THE TIME THE REQUEST FOR PROPOSALS WAS ISSUED, CONTRACTING PERSONNEL FELT THAT THEY COULD NOT CONSIDER ANY OTHER PRODUCTS WITHOUT FURTHER TESTING, AND IN VIEW OF THE LONG TIME (6 MONTHS) WHICH THEY FIGURED IT WOULD TAKE TO COMPLETE ADDITIONAL TESTING, THEY DECIDED TO RESTRICT PROPOSALS TO THE ORIGINAL EQUIPMENT TESTED. WHILE YOU INDICATE THAT THIS PLACED VAP-AIR AT A DISADVANTAGE BECAUSE IT DEVELOPED A MORE SOPHISTICATED STATIC INVERTER THAN ITS COMPETITORS AND WAS HELD TO THIS HIGHER STANDARD DESPITE A REDUCTION IN REQUIREMENTS IN THE REQUEST FOR PROPOSALS SPECIFICATIONS, SINCE THE AGENCY HAS DECIDED IT COULD NOT ACCEPT ALTERNATE EQUIPMENT FROM VAP AIR WITHOUT FURTHER TESTING FOR WHICH TIME DID NOT PERMIT, WE BELIEVE IT WAS WITHIN THE ADMINISTRATIVE PREROGATIVE TO REFUSE TO CONSIDER THE VAP -AIR ALTERNATE PROPOSAL, A DETERMINATION OF THE TECHNICAL REQUIREMENTS OF THE SERVICE HAVING ALWAYS BEEN CONSIDERED BY OUR OFFICE AS A MATTER OF ADMINISTRATIVE DISCRETION.

YOU FURTHER PROTEST THAT THE SUCCESSFUL PROPONENT WAS ALLOWED TO REVISE ITS PRICE DOWNWARD IN SETTLEMENT OF SOME QUESTION AS TO WHETHER IT WOULD INCLUDE A HEAT SINK WITH THE STATIC INVERTERS IT PROPOSED TO FURNISH. THE MODIFICATION OF THE PROPONENT'S PRICE, REGARDLESS OF THE REASON FOR IT, IS NOT CONSIDERED IMPROPER SINCE THERE IS INVOLVED A NEGOTIATED PROCUREMENT DURING THE NEGOTIATION OF WHICH THE PARTIES COULD AGREE ON PRICE REDUCTIONS. WHILE THE CONTRACTING AGENCY HAS PERMITTED THE UNITS TO BE PROVIDED WITHOUT HEAT SINKS UPON THE REPRESENTATION THAT THE UNITS WILL STILL MEET THE PERFORMANCE CRITERIA, YOU ADMIT THAT THE HEAT SINK WAS AN OPTIONAL REQUIREMENT AND IT IS OUR UNDERSTANDING THAT VAP-AIR DID NOT PROPOSE TO USE A HEAT SINK EITHER.

IN ADDITION, YOU HAVE PROTESTED THAT THE SUCCESSFUL PROPONENT'S PROPOSAL WAS CONSIDERED RESPONSIVE DESPITE AN INDICATION THAT IT WAS CHANGING THE SIZE OF THE ENCLOSURE THAT ENCASES THE STATIC INVERTER AND WAS THEREBY TAKING ADVANTAGE OF THE LIBERALIZED SPECIFICATIONS IN THE REQUEST FOR PROPOSALS WHILE VAP-AIR WAS DENIED SUCH AN OPPORTUNITY BY THE REFUSAL TO CONSIDER ITS ALTERNATE PROPOSAL. WE DO NOT KNOW THE BASIS UPON WHICH IT WAS DECIDED TO CONSIDER THE PROPOSAL OF THE SUCCESSFUL PROPONENT ACCEPTABLE DESPITE THE CHANGE IT PROPOSED TO MAKE. HOWEVER, THERE IS INVOLVED IN SUCH A CONSIDERATION AN ENGINEERING JUDGMENT. OUR OFFICE, AS A PRACTICAL MATTER, RELIES UPON THE ENGINEERING PROFICIENCY OF THE TECHNICAL PERSONNEL OF THE CONTRACTING AGENCIES AS TO THE SIGNIFICANCE OF THE TECHNICAL ASPECTS OF THE PROPOSALS. SINCE THE CONTRACTING AGENCY ACCEPTED THE MODIFICATION, IT APPARENTLY DID NOT CONSIDER IT SUCH A SIGNIFICANT DEPARTURE FROM THE APPROVED ARTICLE WHICH WOULD REQUIRE ADDITIONAL TESTING, WHICH APPARENTLY IS WHAT THE AGENCY WOULD WANT TO DO BEFORE THE VAP-AIR ALTERNATE COULD BE CONSIDERED.

AS TO YOUR SUGGESTION THAT THE CONTRACT SHOULD HAVE BEEN ADVERTISED INSTEAD OF NEGOTIATED AS IT WAS UNDER 10 U.S.C. 2304 (A) (10) ON THE GROUND THAT IT IS IMPRACTICAL TO SECURE COMPETITION BY FORMAL ADVERTISING, 10 U.S.C. 2310 (B) MAKES THE DETERMINATION TO NEGOTIATE UNDER 10 U.S.C. 2304 (A) (10) FINAL.

IN VIEW OF THE FOREGOING, IT IS OUR CONCLUSION THAT THERE IS NO PROPER LEGAL BASIS UPON WHICH WE COULD REQUIRE THE CONTRACTING AGENCY TO TAKE ANY ACTION OTHER THAN THAT WHICH WAS EMPLOYED IN THE IMMEDIATE CASE.