B-154848, SEP. 11, 1964

B-154848: Sep 11, 1964

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BROCK AND DAVLIN: REFERENCE IS MADE TO YOUR LETTER OF JULY 27. WHICH WAS ISSUED ON MAY 25. THAT WERE CONSIDERED SUFFICIENTLY COMPLEX TO JUSTIFY A REQUIREMENT THAT PROTOTYPES BE FURNISHED UNDER ANY ENSUING CONTRACT. OFFERORS WERE REQUESTED TO SUBMIT TECHNICAL DISSERTATIONS AS WELL AS PRICES AND WERE URGED TO SUBMIT THEIR PROPOSALS ON THE MOST FAVORABLE TERMS SINCE AWARD MIGHT BE MADE WITHOUT DISCUSSION. THE TECHNICAL DISSERTATION REQUIREMENT IS REPORTED AS HAVING STEMMED FROM FAA'S PAST EXPERIENCE WITH AUDIO AMPLIFIERS AT FIELD FACILITIES. SINCE THE EQUIPMENT IS TO EMBODY SOLID STATE (TRANSISTORIZED) CIRCUITRY. A FIELD WHICH IS RELATIVELY NEW. OFFERORS WERE REQUIRED TO EXPLAIN THEIR PROPOSALS IN DETAIL.

B-154848, SEP. 11, 1964

TO MAHONY, WEISS, BROCK AND DAVLIN:

REFERENCE IS MADE TO YOUR LETTER OF JULY 27, 1964, WRITTEN ON BEHALF OF QUINDAR ELECTRONICS, INC., PROTESTING CONTRACT AWARDS BY THE FEDERAL AVIATION AGENCY (FAA) TO ORBITRONICS, INC., UNDER REQUEST FOR PROPOSALS (RFP) NO. WA5R-4-964/965, IN PARTICULAR, AND UNDER THREE INVITATIONS FOR BIDS.

THE RFP, WHICH WAS ISSUED ON MAY 25, 1964, SOLICITED PROPOSALS TO FURNISH VARIOUS QUANTITIES OF FOUR-CHANNEL REGULATED AMPLIFIERS AND SIX-CHANNEL AUDIO AMPLIFIERS, PLUS ANCILLARY ITEMS, IN ACCORDANCE WITH FAA SPECIFICATIONS DATED APRIL 17, 1964, THAT WERE CONSIDERED SUFFICIENTLY COMPLEX TO JUSTIFY A REQUIREMENT THAT PROTOTYPES BE FURNISHED UNDER ANY ENSUING CONTRACT. OFFERORS WERE REQUESTED TO SUBMIT TECHNICAL DISSERTATIONS AS WELL AS PRICES AND WERE URGED TO SUBMIT THEIR PROPOSALS ON THE MOST FAVORABLE TERMS SINCE AWARD MIGHT BE MADE WITHOUT DISCUSSION, ORAL OR WRITTEN, OF THE PROPOSALS.

THE TECHNICAL DISSERTATION REQUIREMENT IS REPORTED AS HAVING STEMMED FROM FAA'S PAST EXPERIENCE WITH AUDIO AMPLIFIERS AT FIELD FACILITIES. AT ALL INSTALLATIONS, FAA REQUIRES MORE THAN ONE AND AS MANY AS FORTY CHANNELS. SIMULTANEOUS OPERATION OF THE CHANNELS CAUSES CROSS-TALK, THE ELIMINATION OF WHICH (SPECIFICALLY CALLED FOR UNDER PARAGRAPH 3.3.7 OF EACH OF THE SPECIFICATIONS) NECESSITATES ELABORATE SHIELDING AND SPECIFIC DESIGN. ALSO, SINCE THE EQUIPMENT IS TO EMBODY SOLID STATE (TRANSISTORIZED) CIRCUITRY, A FIELD WHICH IS RELATIVELY NEW, OFFERORS WERE REQUIRED TO EXPLAIN THEIR PROPOSALS IN DETAIL.

THE TEN PROPOSALS WHICH WERE RECEIVED WERE EVALUATED WITHOUT PRICING INFORMATION BY A TECHNICAL EVALUATION TEAM COMPRISED OF ENGINEERING PERSONNEL FROM THE THREE INTERESTED FAA SERVICES--- RESEARCH AND DEVELOPMENT, SYSTEMS MAINTENANCE, AND INSTALLATION AND MATERIEL. ONLY THREE OF THE PROPOSALS WERE FOUND TO BE ACCEPTABLE. OF THE ACCEPTABLE PROPOSALS, ORBITRONICS RANKED HIGHEST AND WAS LOWEST IN PRICE BY MORE THAN $80,000. ACCORDINGLY, AWARD WAS MADE TO ORBITRONICS.

IN YOUR PROTEST, YOU STATE THAT QUINDAR'S PRICE WAS APPROXIMATELY $75,000 BELOW ORBITRONICS' PRICE. YOU ALSO STATE THAT QUINDAR ALREADY PRODUCES AMPLIFIERS WHICH EMBODY THE BASIC CIRCUITRY NEEDED TO FULFILL THE TECHNICAL REQUIREMENTS OF THE PROCUREMENT; THAT SUCH EQUIPMENT EQUALS OR EXCEEDS THE SPECIFIED REQUIREMENTS; AND THAT ALTHOUGH DATA CONCERNING THIS FACT WAS SUBMITTED TO FAA, THERE WAS NO FOLLOW-UP WITH QUINDAR BY FAA. ADDITION, YOU IMPLY THAT AWARD HAS BEEN MADE TO ORBITRONICS IN OTHER PROCUREMENTS, SPECIFICALLY IN THREE ADVERTISED PROCUREMENTS WHICH WILL BE DISCUSSED LATER, IRRESPECTIVE OF WHETHER ORBITRONICS WAS HIGH OR LOW OR HAD PREVIOUSLY PRODUCED THE EQUIPMENT BEING PROCURED.

FAA REPORTS THAT UPON TECHNICAL EVALUATION OF THE PROPOSALS, QUINDAR RANKED TENTH AND LAST WITH A RATING OF 9 IN CONTRAST TO THE RATING OF 86 FOR ORBITRONICS AND 85 AND 75, RESPECTIVELY, FOR THE SECOND AND THIRD TECHNICALLY ACCEPTABLE FIRMS. IT IS ALSO REPORTED THAT QUINDAR'S PROPOSAL DID NOT INCLUDE THE REQUIRED TECHNICAL DISSERTATION, NOR DID QUINDAR FURNISH THE NECESSARY DETAILED INFORMATION EXPLAINING ITS PROPOSAL. CONSEQUENTLY, THERE WAS NO INDICATION AS TO QUINDAR'S SOLUTION OF THE CROSS-TALK PROBLEM ATTENDANT UPON THE SIMULTANEOUS OPERATION OF MORE THAN ONE CHANNEL.

THE ADVICE CONTAINED IN THE RFP THAT OFFERORS SHOULD SUBMIT BOTH A TECHNICAL DISSERTATION AND THEIR BEST BID PRICES, SO AS TO PERMIT ACCEPTANCE OF A PROPOSAL WITHOUT WRITTEN OR ORAL DISCUSSION, WAS IN ACCORD WITH THE PROVISIONS OF SUBPART 1-3.805 (B) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR). IN THIS CONNECTION, WE HAVE HELD THAT THE RESPONSIBILITY FOR DETERMINING WHETHER A TECHNICAL PROPOSAL MEETS THE GOVERNMENT'S PERFORMANCE SPECIFICATION IS SOLELY THAT OF THE PROCURING ACTIVITY, AND IN LINE WITH ESTABLISHED PRECEDENTS WE HAVE DECLINED TO QUESTION SUCH A DETERMINATION. 40 COMP. GEN. 40. ALSO, WE HAVE UPHELD THE REJECTION OF A LOW TECHNICAL PROPOSAL WHERE THE OFFEROR HAS FAILED TO FURNISH REQUESTED DETAILED INFORMATION WITH THE PROPOSAL. 39 COMP. GEN. 490. SINCE THE PURPOSE OF THE TECHNICAL DISSERTATION REQUIREMENT IN THE INSTANT CASE WAS TO ENABLE FAA TO ASCERTAIN WITHOUT FURTHER INQUIRY WHETHER THE OFFEROR WAS CAPABLE OF PRODUCING THE COMPLEX AMPLIFIERS, WE MUST CONCLUDE THAT QUINDAR'S FAILURE TO MEET SUCH REQUIREMENT WARRANTED REJECTION OF ITS OFFER WITHOUT DISCUSSION. ALSO, SINCE THE TECHNICAL EVALUATION WAS MADE WITHOUT REGARD TO PRICE BUT AWARD WAS MADE TO THE TECHNICALLY ACCEPTABLE FIRM MAKING THE LOWEST OFFER, IT IS APPARENT THAT THE PROCUREMENT HAS BEEN MADE, IN KEEPING WITH THE PROVISIONS OF FPR 1 3.102, TO THE BEST ADVANTAGE OF THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. ACCORDINGLY, WE FIND NO BASIS TO QUESTION THE AWARD TO ORBITRONICS, AND YOUR PROTEST ON THIS PROCUREMENT IS DENIED.

WITH RESPECT TO THE PROPRIETY OF THREE ADVERTISED PROCUREMENTS IN WHICH AWARD WAS MADE TO ORBITRONICS, THE FOLLOWING WOULD APPEAR TO BE PERTINENT:

1. IFB NO. 50M-3-658-B1, DECEMBER 21, 1962.

YOU STATE THAT AWARD WAS MADE TO ORBITRONICS AT A PRICE ONLY $5,000 LOWER THAN QUINDAR'S PRICE ALTHOUGH QUINDAR HAD PREVIOUSLY MADE THE EQUIPMENT, A TONE/SCAN CONTROL SYSTEM, WHILE ORBITRONICS, WITH ONLY THREE EMPLOYEES AND NO ORGANIZATION, HAD NEVER MADE THE EQUIPMENT. FAA REPORTS, HOWEVER, THAT NOT ONLY WAS ORBITRONICS THE LOWEST BIDDER, BUT A PREAWARD SURVEY ON ORBITRONICS, WHICH ALREADY HAD ONE FAA CONTRACT, DISCLOSED THAT ORBITRONICS EMPLOYED THREE GRADUATE ENGINEERS AND FIVE TECHNICIANS, AS WELL AS DRAFTING, SECRETARIAL AND SALES PERSONNEL, AND HAD A GOOD UNDERSTANDING OF THE SPECIFICATION REQUIREMENTS. WE ARE FURTHER ADVISED THAT THE EQUIPMENT HAS BEEN DELIVERED UNDER THE CONTRACT AND THAT IT MEETS THE SPECIFICATION REQUIREMENTS.

IT WOULD THEREFORE APPEAR THAT THE AWARD TO ORBITRONICS, THE LOW RESPONSIVE, RESPONSIBLE BIDDER, WAS IN THE INTEREST OF THE GOVERNMENT AND IN KEEPING WITH THE REQUIREMENTS OF THE RULES OF COMPETITIVE BIDDING.

2. IFB WA5M-4-791-B1, MAY 4, 1964.

IN THIS PROCUREMENT OF A TONE/SCAN CONTROL SYSTEM, YOU STATE THAT WHILE QUINDAR WAS NOT A LOW BIDDER, THREE OTHER LOW BIDDERS WERE PASSED OVER AND AWARD MADE TO ORBITRONICS.

SINCE WE ARE CURRENTLY CONSIDERING THE PROTEST OF ONE OF THE LOW BIDDERS UNDER THIS INVITATION AND EXPECT TO ISSUE A DECISION IN THE MATTER, WE HAVE NO COMMENTS TO MAKE ON THE PROCUREMENT AT THIS TIME.

3. IFB WA5M-4-936-B1, JUNE 1, 1964.

IN THIS PROCUREMENT OF VOICE FREQUENCY SIGNALING SYSTEMS IN QUANTITIES OF 50, 100 AND 300, YOU STATE THAT QUINDAR WAS LOW FROM 136 UP AND 10 PERCENT LOWER AT HIGH END WHILE ANOTHER BIDDER WAS LOW AT SMALLER QUANTITY LEVEL, BUT AWARD WAS MADE TO ORBITRONICS FOR 101SETS ON A CONTRACT WITH A 60-DAY ADD-ON CLAUSE. YOU STATE ALSO THAT QUINDAR WAS UNOFFICIALLY INFORMED THERE WERE REQUIREMENTS FOR THE MAXIMUM QUANTITY.

FAA REPORTS THAT THE ORIGINAL PROCUREMENT REQUEST WAS FOR 101 UNITS, THE QUANTITY FOR WHICH AWARD WAS MADE, AND THAT THE 60-DAY ADD ON CLAUSE WAS THE STANDARD "AWARD INCREASES" CLAUSE OF THE PRE-PRINTED ADDITIONAL PROVISIONS, FIXED PRICE SUPPLY CONTRACT (FAA-3-63) WHICH WAS SENT TO ALL PROSPECTIVE OFFERORS AND WHICH WOULD HAVE BEEN INCLUDED IN ANY CONTRACT AWARDED FOR THE PROCUREMENT. THE PURPOSE OF SUCH PROVISION WAS TO ALLOW THE GOVERNMENT TO INCREASE CONTRACT QUANTITIES SHOULD PROGRAM NEEDS INCREASE. AT PRESENT, IT IS STATED, THE AGENCY HAS NO PLANS TO INCREASE THE QUANTITY. IT IS APPARENT, THEREFORE, THAT THERE WAS NO IRREGULARITY IN THE AWARD OF THIS PROCUREMENT.

TO SUMMARIZE, WE FIND NO INDICATION THAT FAA HAS DEVIATED FROM THE REQUIREMENTS OF THE PROCUREMENT STATUTES AND REGULATIONS IN EITHER THE NEGOTIATED OR THE ADVERTISED PROCUREMENTS. ACCORDINGLY, YOUR PROTEST IS DENIED.

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