B-157534, DEC. 28, 1965

B-157534: Dec 28, 1965

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BRYANT: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF AUGUST 20 AND 24. PROTESTING THE DETERMINATION BY THE AIR FORCE THAT THE PROPOSAL SUBMITTED BY YOUR COMPANY UNDER REQUEST FOR TECHNICAL PROPOSAL WE-5-5826-817 WAS UNACCEPTABLE AND THAT YOUR COMPANY WAS NOT ALLOWED TO BRING IT UP TO AN ACCEPTABLE LEVEL. WE-5-5826-817 WAS ISSUED BY THE AERONAUTICAL SYSTEMS DIVISION. TWENTY-FIVE FIRMS WERE SOLICITED. FIVE PROPOSALS WERE RECEIVED. THE PROPOSALS WERE EVALUATED FOR TECHNICAL COMPLIANCE WITH THE REQUIREMENTS OF THE EXHIBIT IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2 503.1 (C) AND AIR FORCE SYSTEMS COMMAND REGULATION 80-1 ENTITLED "GUIDE FOR EVALUATORS.'.

B-157534, DEC. 28, 1965

TO MR. DAVID T. BRYANT:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF AUGUST 20 AND 24, 1965, RESPECTIVELY, PROTESTING THE DETERMINATION BY THE AIR FORCE THAT THE PROPOSAL SUBMITTED BY YOUR COMPANY UNDER REQUEST FOR TECHNICAL PROPOSAL WE-5-5826-817 WAS UNACCEPTABLE AND THAT YOUR COMPANY WAS NOT ALLOWED TO BRING IT UP TO AN ACCEPTABLE LEVEL.

LETTER REQUEST FOR TECHNICAL PROPOSAL NO. WE-5-5826-817 WAS ISSUED BY THE AERONAUTICAL SYSTEMS DIVISION, AIR FORCE SYSTEMS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, ON NOVEMBER 16, 1964, AS THE FIRST STEP OF A TWO- STEP ADVERTISED PROCUREMENT AND SOLICITED TECHNICAL PROPOSALS FOR DEVELOPING, DESIGNING, PRODUCING, TESTING AND FURNISHING A NUMBER OF PROTOTYPE MODELS OF A RECEIVING SET, RADIO AN/ARN-80 (V), IN ACCORDANCE WITH THE REQUIREMENT OF EXHIBIT SEAGN 104, DATED AUGUST 10, 1964.

TWENTY-FIVE FIRMS WERE SOLICITED. FIVE PROPOSALS WERE RECEIVED, INCLUDING PROPOSALS FROM YOUR COMPANY AND AIRCRAFT RADIO COMPANY, BOONTOWN, NEW JERSEY. THE PROPOSALS WERE EVALUATED FOR TECHNICAL COMPLIANCE WITH THE REQUIREMENTS OF THE EXHIBIT IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2 503.1 (C) AND AIR FORCE SYSTEMS COMMAND REGULATION 80-1 ENTITLED "GUIDE FOR EVALUATORS.'

THE ENGINEERING EVALUATION TEAM DETERMINED THAT FOUR PROPOSALS, INCLUDING YOURS, FAILED TO COMPLY WITH THE REQUIREMENTS OF THE EXHIBIT TO SUCH A DEGREE AS TO BE TECHNICALLY UNACCEPTABLE. IT ALSO DETERMINED THAT THE PROPOSAL SUBMITTED BY AIRCRAFT RADIO COMPANY, ALTHOUGH DEFICIENT IN SOME RESPECTS, WAS SUSCEPTIBLE TO BEING MADE ACCEPTABLE WITH A REASONABLE EFFORT ON THE PART OF THE GOVERNMENT AND THEREFORE CLASSIFIED IT AS MARGINAL. AS CONTEMPLATED BY THE ABOVE EVALUATION PROCEDURES, THE MARGINAL PROPOSER WAS ADVISED OF THE DEFICIENCIES AND REQUESTED TO FURNISH SUPPLEMENTAL DATA TO MAKE THE PROPOSAL COMPLY FULLY WITH THE AN/ARN-80 (V) REQUIREMENTS. THIS SUPPLEMENTAL DATA WAS FURNISHED AND, UPON REEVALUATION, THE PROPOSAL OF AIRCRAFT RADIO COMPANY WAS DETERMINED TO BE ACCEPTABLE. ALL OTHER PROPOSERS WERE NOTIFIED ON MAY 17, 1965, THAT THEIR TECHNICAL PROPOSALS WERE UNACCEPTABLE.

AS A RESULT OF YOUR PROTEST FILED WITH THE PROCURING ACTIVITY A MEETING WAS HELD ON MAY 24, 1965, BETWEEN REPRESENTATIVES OF THE AIR FORCE AND YOUR COMPANY TO DISCUSS THE REASONS FOR THE EVALUATION OF YOUR PROPOSAL AS UNACCEPTABLE. INFORMATION FURNISHED BY YOUR COMPANY AT THIS MEETING RESULTED IN A DECISION BY THE PROCURING ACTIVITY TO REQUEST A REEVALUATION OF YOUR PROPOSAL, GIVING CONSIDERATION TO THE CLARIFICATIONS AND INFORMATION DEVELOPED AT THIS MEETING. AT THE SAME TIME, THE PROCURING ACTIVITY DECIDED TO REQUEST A TECHNICAL REEVALUATION OF ALL PROPOSALS. THIS REEVALUATION RESULTED IN THE SAME FINDINGS WITH RESPECT TO THE FOUR UNACCEPTABLE TECHNICAL PROPOSALS. IT ALSO DISCLOSED A NEW DEFICIENCY IN THE PROPOSAL OF AIRCRAFT RADIO COMPANY, WHICH, HOWEVER, WAS EASILY CORRECTED. A FURTHER MEETING BETWEEN YOUR COMPANY AND AIR FORCE REPRESENTATIVES WAS HELD AT YOUR REQUEST ON NOVEMBER 10, 1965. THE AIR FORCE REPRESENTATIVES MET IN SPECIAL SESSION IMMEDIATELY FOLLOWING THIS MEETING AND CONCLUDED THAT THE PREVIOUS EVALUATION OF YOUR PROPOSAL WAS JUSTIFIED.

ON THE BASIS OF THE NEW EVALUATION, THE CONTRACTING OFFICER PROPOSES TO NEGOTIATE A CONTRACT WITH AIRCRAFT RADIO COMPANY AS THE ONLY FIRM SUBMITTING AN ACCEPTABLE TECHNICAL PROPOSAL. ASPR 2-503.1 (F).

THE SUBMITTED RECORD AND ACCOMPANYING ADMINISTRATIVE REPORT DISCLOSES THAT YOUR PROTEST IS BASED PRIMARILY ON YOUR CONTENTION THAT YOUR TECHNICAL PROPOSALS SHOULD HAVE BEEN CLASSIFIED AS MARGINAL AND THEREFORE SUSCEPTIBLE TO BEING MADE ACCEPTABLE WITH A REASONABLE EFFORT ON THE PART OF THE GOVERNMENT, AND THAT IT SHOULD NOT HAVE BEEN REJECTED AS TOTALLY UNACCEPTABLE. THE ADMINISTRATIVE ENGINEERING EVALUATION TEAM HAS LISTED 12 SPECIFIC AREAS IN THE REQUIREMENTS OF THE EXHIBIT WHICH YOUR PROPOSAL FAILED TO COMPLY WITH, AND YOU WERE ADVISED OF THESE REASONS BY LETTER OF MAY 17 AND AT THE MEETINGS OF MAY 24 AND NOVEMBER 10, 1965. THE COGNIZANT AIR FORCE TECHNICAL PERSONNEL HAVE REAFFIRMED THEIR PRIOR DETERMINATION THAT YOUR PROPOSAL IS SO DEFICIENT AS TO REQUIRE ITS REJECTION AS UNACCEPTABLE. THE DEFICIENCIES ARE SUMMARIZED AS FOLLOWS:

1. THE LACK OF ADEQUATE DESIGN DETAIL AND THE FACT THAT THE DESIGN DATA PROVIDED DID NOT REPRESENT AN ACCEPTABLE DESIGN CONCEPT.

2. THE LACK OF COVERAGE OF SPECIFIC TESTING REQUIREMENTS INDICATED A RATHER HAPHAZARD ANALYSIS OF THE EXHIBIT REQUIREMENTS.

3. THE RELIABILITY DATA INDICATED A GROSS LACK OF KNOWLEDGE AND BACKGROUND ON CURRENT RELIABILITY EFFORT.

4. YOUR COMPANY'S EXPERIENCE DOES NOT INCLUDE ANY DIRECT EXPERIENCE IN THE DEVELOPMENT OF ILS/VOR EQUIPMENT OR THE UTILIZATION OF MOLECULAR CIRCUITRY.

ASPR 2-503.1 (C) PROVIDES, IN PERTINENT PART, THAT:

"/C) * * * PROPOSALS SHALL NOT BE CATEGORIZED AS UNACCEPTABLE WHEN A REASONABLE EFFORT ON THE PART OF THE GOVERNMENT TO OBTAIN CLARIFICATION OR ADDITIONAL INFORMATION COULD BRING THE PROPOSALS TO AN ACCEPTABLE STATUS AND THUS INCREASE COMPETITION. * * *"

THIS SECTION FURTHER PROVIDES:

"* * * THE CONTRACTING OFFICER SHALL ARRANGE FOR ANY NECESSARY DISCUSSIONS WITH SOURCES SUBMITTING TECHNICAL PROPOSALS. * * * IF, HOWEVER, IT IS DETERMINED AT ANY TIME THAT A TECHNICAL PROPOSAL IS NOT REASONABLY SUSCEPTIBLE TO BEING MADE ACCEPTABLE, IT SHOULD BE CLASSIFIED AS UNACCEPTABLE AND FURTHER DISCUSSION OF IT IS UNNECESSARY.'

ASPR 2-503.1 (D) PROVIDES:

"/D) UPON FINAL DETERMINATION THAT A TECHNICAL PROPOSAL IS UNACCEPTABLE, THE CONTRACTING OFFICER SHALL PROMPTLY NOTIFY THE SOURCE SUBMITTING THE PROPOSAL OF THAT FACT. THE NOTICE SHALL STATE THAT REVISION OF HIS PROPOSAL WILL NOT BE CONSIDERED, AND SHALL INDICATE, IN GENERAL TERMS, THE BASIS FOR THE DETERMINATION FOR EXAMPLE, THAT REJECTION WAS BASED ON FAILURE TO FURNISH SUFFICIENT INFORMATION OR ON AN ACCEPTABLE ENGINEERING APPROACH.'

APSR 2-503.1 (F) PROVIDES, IN PERTINENT PART, THAT:

"/F) IF, AS A RESULT OF THE EVALUATION OF TECHNICAL PROPOSALS, IT APPEARS NECESSARY TO DISCONTINUE TWO-STEP FORMAL ADVERTISING, A STATEMENT SETTING FORTH THE FULL FACTS AND CIRCUMSTANCES SHALL BE MADE A PART OF THE CONTRACT FILE. EACH SOURCE WILL BE NOTIFIED IN WRITING OF THE DISCONTINUANCE AND THE REASON THEREFOR. WHEN STEP ONE RESULTS IN NO ACCEPTABLE TECHNICAL PROPOSAL OR ONLY ONE ACCEPTABLE TECHNICAL PROPOSAL, THE PROCUREMENT MAY BE CONTINUED BY NEGOTIATION UNDER THE AUTHORITY OF 3- 210.2 (III). * * *"

SINCE YOU HAD AN OPPORTUNITY TO REVIEW THE ADMINISTRATIVE BASES FOR THE REJECTION OF YOUR TECHNICAL PROPOSAL AS SUBMITTED, WE WILL NOT REPEAT HERE THE TECHNICAL REASONS FOR THE REJECTION OF YOUR TECHNICAL PROPOSAL. HAVE, HOWEVER, OBTAINED THE VIEWS OF THE PROCUREMENT AGENCY ON THE REASONS FOR REJECTION SUMMARIZED ABOVE AND IT HAS STATED ITS COMPLETE CONFIDENCE IN THE PROFESSIONAL ABILITY, JUDGMENT AND IMPARTIALITY OF THE AIR FORCE TECHNICAL AND PROCUREMENT PERSONNEL CHARGED WITH THIS PROGRAM. YOUR PROTEST INDICATES A DIRECT CONFLICT OF OPINIONS, JUDGMENTS, FINDINGS AND CONCLUSIONS BETWEEN AIR FORCE TECHNICAL PERSONNEL AND THOSE OF YOUR COMPANY. IN SUCH A SITUATION THIS OFFICE HAS STATED THAT THE DETERMINATION OF THE ACCEPTABILITY OF TECHNICAL PROPOSALS IS VESTED IN THE PROCUREMENT AGENCY WHICH IS BEST QUALIFIED TO EVALUATE THEM AND, IN ACCORDANCE WITH WELL-ESTABLISHED PRECEDENTS, WE WILL NOT QUESTION ITS DETERMINATION. 40 COMP. GEN. 35.

IT IS NOT OUR FUNCTION TO TECHNICALLY EVALUATE PROPOSALS OR TO MAKE AN INDEPENDENT DETERMINATION IN THIS CASE AS TO WHETHER YOUR PROPOSAL WAS SUSCEPTIBLE TO BEING MADE ACCEPTABLE WITH A REASONABLE EFFORT ON THE PART OF THE GOVERNMENT AND THEREFORE THAT IT SHOULD HAVE BEEN CLASSIFIED AS MARGINAL. SEE, GENERALLY, 17 COMP. GEN. 554; 19 ID. 587; 40 ID. 35. INDEED, WE ARE NOT EQUIPPED TO DO SO. IT DOES APPEAR THAT YOUR PROPOSAL WAS EVALUATED IN ACCORDANCE WITH THE ESTABLISHED EVALUATION PROCEDURE, AND THAT ANOTHER PROPOSAL WAS DULY SELECTED FOR NEGOTIATION UNDER THIS PROCEDURE.

THE DESIGN, DETAIL, TESTING, RELIABILITY DATA AND AREA EXPERIENCE REQUIREMENTS OF THE REQUEST FOR PROPOSALS CONSTITUTED, IN OUR OPINION, A PROPER EXERCISE OF PROCUREMENT RESPONSIBILITY AND ARE REASONABLY CONTEMPLATED BY ASPR 2-503.1 (A). WE FEEL THAT THE RECORD SHOWS THAT YOUR PROPOSAL WAS GIVEN EVERY REASONABLE CONSIDERATION AND THERE IS NO EVIDENCE THAT THE ADMINISTRATIVE ACTION IN THIS CASE WAS ARBITRARY OR CAPRICIOUS.

UPON REVIEW OF THE RECORD, WE FIND NO BASIS TO QUESTION THE REJECTION OF YOUR TECHNICAL PROPOSAL OR THE INTENTION OF THE PROCUREMENT AGENCY TO NEGOTIATE A CONTRACT WITH AIRCRAFT RADIO COMPANY.