B-155394, MAR. 31, 1965

B-155394: Mar 31, 1965

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HIGGINS: REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER DATED FEBRUARY 15 AND 24. THE PROPOSAL SUBMITTED BY YOUR COMPANY UNDER THE SUBJECT REQUEST FOR PROPOSALS WAS REJECTED ON THE BASIS THAT IT WAS DEFECTIVE BECAUSE: (A) THE SURVEY AT THE ANTENNA MODEL RANGE AT SCIENTIFIC-ATLANTA REVEALED DISCREPANCIES IN THE MODEL THAT INVALIDATES THE IMPEDANCE MEASUREMENTS SHOWN IN THE PROPOSED SUPPLEMENTAL PROPOSAL SUBMITTED BY YOUR COMPANY UNDER DATE OF JANUARY 6. (B) DISCUSSION WITH ENGINEERS FROM YOUR COMPANY DISCLOSED THAT THE DESIGN OF THE IMPEDANCE MATCHING UNIT HAD NOT PROGRESSED BEYOND THE CALCULATION OF COMPONENT VALVES AND THESE VALVES WERE INVALIDATED BY THE ERRORS IN MODEL MEASUREMENTS. (C) THE REFLECTOR SWITCH SYSTEM IS NOT CONSIDERED TO BE TECHNICALLY SOUND.

B-155394, MAR. 31, 1965

TO MR. RICHARD A. HIGGINS:

REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER DATED FEBRUARY 15 AND 24, 1965, RESPECTIVELY, PROTESTING AGAINST THE NEGOTIATION OF A CONTRACT WITH GRANGER ASSOCIATES UNDER NAVY PURCHASING OFFICE REQUEST FOR PROPOSALS 14- 65Q FOR GRANGER MODEL 788 ANTENNA SYSTEMS.

THE PROPOSAL SUBMITTED BY YOUR COMPANY UNDER THE SUBJECT REQUEST FOR PROPOSALS WAS REJECTED ON THE BASIS THAT IT WAS DEFECTIVE BECAUSE: (A) THE SURVEY AT THE ANTENNA MODEL RANGE AT SCIENTIFIC-ATLANTA REVEALED DISCREPANCIES IN THE MODEL THAT INVALIDATES THE IMPEDANCE MEASUREMENTS SHOWN IN THE PROPOSED SUPPLEMENTAL PROPOSAL SUBMITTED BY YOUR COMPANY UNDER DATE OF JANUARY 6, 1965; (B) DISCUSSION WITH ENGINEERS FROM YOUR COMPANY DISCLOSED THAT THE DESIGN OF THE IMPEDANCE MATCHING UNIT HAD NOT PROGRESSED BEYOND THE CALCULATION OF COMPONENT VALVES AND THESE VALVES WERE INVALIDATED BY THE ERRORS IN MODEL MEASUREMENTS; AND (C) THE REFLECTOR SWITCH SYSTEM IS NOT CONSIDERED TO BE TECHNICALLY SOUND.

YOU CONTEND THAT THE FOREGOING REASONS ARE TECHNICALLY UNSOUND. YOU STATE THAT CONTRARY TO (A) ABOVE, ANALYTICAL ENGINEERING BEARS OUT THAT DISCREPANCIES IN THE MODEL WOULD HAVE NO SIGNIFICANT IMPACT ON THE IMPEDANCE MEASUREMENTS; THAT YOU CONSIDER (B) ABOVE AN ERRONEOUS ASSUMPTION; AND THAT THE REFLECTOR SWITCH ASSEMBLY MENTIONED IN (C) WAS FURNISHED VOLUNTARILY AND WAS NOT REQUIRED NOR REQUESTED FOR SUBMISSION AS PART OF YOUR COMPANY'S PROPOSAL.

TO SOME EXTENT THERE SEEMS TO BE A DISPUTE BETWEEN YOU AND THE CONTRACTING AGENCY AS TO WHETHER YOUR TECHNICAL PROPOSAL MEETS THE GOVERNMENT'S REQUIREMENTS. OUR OFFICE DOES NOT HAVE TECHNICAL ENGINEERING EXPERTISE. THEREFORE, IN CASES SUCH AS THIS WHICH REQUIRE SUCH TECHNICAL SKILL, IT IS THE PRACTICE OF OUR OFFICE TO RELY UPON THE DETERMINATIONS OF THE CONTRACTING AGENCIES. THUS, IN THIS CASE, SINCE THE AGENCY IS OF THE OPINION THAT FROM A TECHNICAL ENGINEERING STANDPOINT YOUR COMPANY'S PROPOSAL WAS DEFICIENT, WE ARE CONSTRAINED TO FOLLOW ITS VIEW.

FURTHER, THE RECORD SHOWS THAT THERE WERE REPEATED POSTPONEMENTS OF THE PROCUREMENT IN ORDER TO ENABLE YOUR COMPANY TO QUALIFY FOR AN AWARD AND ONLY WHEN TIME WOULD NOT ALLOW ANY FURTHER DELAY DID THE AGENCY FINALLY DECIDE TO NEGOTIATE A CONTRACT WITH GRANGER ASSOCIATES. IN THAT CONNECTION, THE CONTRACT SHOWS THAT THE PROCUREMENT WAS NEGOTIATED PURSUANT TO 10 U.S.C. 2304 (A) (2), WHICH PROVIDES FOR NEGOTIATION IN A PUBLIC EXIGENCY. DETERMINATIONS SUPPORTING NEGOTIATION UNDER THAT PROVISION ARE MADE FINAL BY 10 U.S.C. 2310 (B).

INASMUCH AS THE CONTRACTING AGENCY DETERMINED THAT YOUR COMPANY'S TECHNICAL PROPOSAL WAS UNACCEPTABLE AND SINCE THIS IS A NEGOTIATED PROCUREMENT MADE ON THE BASIS OF A DETERMINATION WHICH MUST BE CONSIDERED FINAL AS A MATTER OF LAW, THE FACT THAT YOU WERE THE LOWEST PROPONENT OR THAT A BONDING COMPANY WAS PREPARED TO ACT AS SURETY FOR YOUR SUCCESSFUL PERFORMANCE MAY NOT BE ACCEPTED AS A SUFFICIENT BASIS FOR QUESTIONING THE LEGALITY OF THE CONTRACT AS MADE.