B-158489, JUN. 6, 1966, 45 COMP. GEN. 749

B-158489: Jun 6, 1966

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THE FACT THAT THE LOW BIDDER ON THE PROCUREMENT NEGOTIATED PURSUANT TO 10 U.S.C. 2304 (A) (11) MET THE MINIMUM REQUIREMENTS OF THE PURCHASE DESCRIPTION BUT COST NEGOTIATIONS WERE CONDUCTED SOLELY WITH THE SECOND LOW BIDDER OFFERING A SUPERIOR PRODUCT DOES NOT CONVERT THE COMPETITIVE PROCUREMENT TO A SOLE SOURCE PROCUREMENT THAT WAS WITHOUT HIGHER AUTHORITY APPROVAL. A CONTRACT AWARD PURSUANT TO THOSE NEGOTIATIONS WAS PROPER. THE PROCUREMENT WAS NEGOTIATED UNDER A CLASS DETERMINATION AND FINDINGS AUTHORIZED BY 10 U.S.C.2304 (A) (11). THE RECORD DISCLOSES THAT TWO PROPOSALS WERE RECEIVED IN THE FOLLOWING AMOUNTS: CHART MAURER $136. 522.00 THE QUOTATIONS BELOW ARE EXCERPTS FROM THE CONCLUSIONS REACHED BY GOVERNMENT PERSONNEL CHARGED WITH THE RESPONSIBILITY OF EVALUATING THESE PROPOSALS: 2.

B-158489, JUN. 6, 1966, 45 COMP. GEN. 749

CONTRACTS - NEGOTIATION - AWARDS - TO OTHER THAN THE LOW BIDDER UNDER A REQUEST FOR PROPOSALS SOLICITING OFFERS FOR RESEARCH AND DEVELOPMENT ON EQUIPMENT IN ACCORDANCE WITH A PURCHASE DESCRIPTION THAT INVITED PROPOSALS DEVIATING FROM THE DESIGN OF THE ,PRELIMINARY ENGINEERING" MODEL, THE FACT THAT THE LOW BIDDER ON THE PROCUREMENT NEGOTIATED PURSUANT TO 10 U.S.C. 2304 (A) (11) MET THE MINIMUM REQUIREMENTS OF THE PURCHASE DESCRIPTION BUT COST NEGOTIATIONS WERE CONDUCTED SOLELY WITH THE SECOND LOW BIDDER OFFERING A SUPERIOR PRODUCT DOES NOT CONVERT THE COMPETITIVE PROCUREMENT TO A SOLE SOURCE PROCUREMENT THAT WAS WITHOUT HIGHER AUTHORITY APPROVAL, AND THE SECOND LOW BIDDER, A FIRM PERMITTED BY THE RFP TO DEVIATE FROM THE DESIGN OF THE PRELIMINARY MODEL, RESPONSIVE TO THE PERFORMANCE CHARACTERISTICS OF THE MODEL, AS WELL AS THE TECHNICAL REQUIREMENTS OF THE PURCHASE DESCRIPTION, HAVING OFFERED A SUPERIOR PRODUCT THAT DEMONSTRATED AN UNDERSTANDING OF THE PROBLEM AND THE SCOPE OF THE PROJECT, MEANINGFUL NEGOTIATIONS COULD ONLY BE CONDUCTED WITH THAT FIRM, AND A CONTRACT AWARD PURSUANT TO THOSE NEGOTIATIONS WAS PROPER.

TO NORMAN JACOBSON, JUNE 6, 1966:

IN YOUR LETTERS OF FEBRUARY 17 AND MAY 10, 1966, YOU URGE THAT WE UPHOLD A TELEGRAPHIC PROTEST DATED FEBRUARY 9, 1966, FROM YOUR CLIENT, J. A. MAURER, INC., AGAINST THE AWARD OF CONTRACT DA18-119-AMC-02814 (X), BY THE U.S. ARMY PROCUREMENT OFFICE AT FORT MEADE, MARYLAND, TO THE LINK GROUP OF GENERAL PRECISION, INC., PURSUANT TO REQUEST FOR PROPOSALS (RFP) 66-LYN/PR -66051.

THE RFP REQUESTED OFFERS FOR RESEARCH AND DEVELOPMENT ON, AND DELIVERY OF, ONE GRAPHIC RECORDER AND PROCESSOR IN ACCORDANCE WITH PURCHASE DESCRIPTION (P.D.) R7.032. THE PROCUREMENT WAS NEGOTIATED UNDER A CLASS DETERMINATION AND FINDINGS AUTHORIZED BY 10 U.S.C.2304 (A) (11), WHICH PROVIDE THAT ONLY A NEGOTIATED PURCHASE PERMITS, AMONG OTHER THINGS, THE OBTAINING OF METHODS OF APPROACH WHICH INSURE THE HIGHEST POSSIBILITY OF SUCCESSFUL COMPLETION.

THE RECORD DISCLOSES THAT TWO PROPOSALS WERE RECEIVED IN THE FOLLOWING AMOUNTS:

CHART

MAURER $136,037.25

LINK 148,522.00

THE QUOTATIONS BELOW ARE EXCERPTS FROM THE CONCLUSIONS REACHED BY GOVERNMENT PERSONNEL CHARGED WITH THE RESPONSIBILITY OF EVALUATING THESE PROPOSALS:

2. R7 RECOMMENDS AN AWARD TO THE LINK GROUP FOR THE FOLLOWING REASONS:

A. TECHNICAL PROPOSALS

(1) THE SYSTEMS PROPOSED BY BOTH COMPANIES MEET THE MINIMUM REQUIREMENTS OF THE PURCHASE DESCRIPTION. THE SYSTEM PROPOSED BY LINK GROUP, IS HOWEVER, FAR SUPERIOR. THE LINK DESIGN INHERENTLY INCLUDED AUTOMATIC ERROR COMPENSATION IN AREAS WHICH HAVE BEEN FOUND THROUGH OPERATIONAL EXPERIENCE TO BE CRITICAL. THE MAURER PROPOSAL ON THE OTHER HAND APPEARS TO MEET THE MINIMUM PURCHASE DESCRIPTION REQUIREMENTS WITH LITTLE OR NO MECHANICAL OR PERFORMANCE MARGINS. SYSTEMS NEARLY IDENTICAL TO THE ONE TO BE SUPPLIED UNDER THE PURCHASE DESCRIPTION PRODUCED BY BOTH COMPANIES HAVE BEEN OBSERVED BY AGENCY TECHNICAL PERSONNEL. THE WORKMANSHIP, MECHANICAL DESIGN, AND GENERAL APPEARANCE OF THE LINK SYSTEMS ARE FAR SUPERIOR TO THOSE OF J. A. MAURER.

(3) EVALUATION OF DESIGN APPROACHES CLEARLY INDICATES THE SUPERIORITY OF THE LINK EQUIPMENT. * * *

B. COMPANY BACKGROUND AND PERFORMANCE

(1) THE LINK GROUP IS CONSIDERED BETTER QUALIFIED IN THIS CATEGORY, HAVING BUILT SEVERAL SIMILAR SYSTEMS FOR NASA (JPL) AND ONE FOR THE NATIONAL SATELLITE CENTER. * * *

3. THUS * * * THE LINK GROUP HAS DISPLAYED A SOUND UNDERSTANDING OF THE TECHNICAL PROBLEMS INVOLVED AND THAT THE CLEAR SUPERIORITY OF ITS DESIGN APPROACH, WHICH IS INHERENTLY MORE RELIABLE AND STABLE AND POSSESSES GREATER OPERATING MARGINS, MORE THAN OFFSETS THE SLIGHT ADDITIONAL COST OF THE EQUIPMENT. THE LINK EQUIPMENT SHOULD RESULT IN AN OPERATIONAL CAPABILITY WHICH IS SIGNIFICANTLY MORE SUITABLE TO THE AGENCY'S REQUIREMENTS, AND IN THE LONG RUN WILL RESULT IN BENEFITS WHICH WILL NEGATE THE $12,484.72 DIFFERENCE IN COST.

DUE TO THE SUBSTANTIAL SUPERIORITY OF THE EQUIPMENT PROPOSED BY LINK, COST NEGOTIATIONS WERE CONDUCTED SOLELY WITH THAT FIRM. LINK REDUCED ITS OFFER TO $143,240, AND WAS AWARDED THE CONTRACT ON FEBRUARY 1, 1966.

YOU PROTEST THE ACTIVITY'S FAILURE TO HAVE INCLUDED YOUR CLIENT IN THE NEGOTIATIONS. INITIALLY, YOU MAINTAINED THAT UNDER OUR DECISION, 45 COMP. GEN. 417, MAURER SHOULD HAVE BEEN INCLUDED IN THE NEGOTIATIONS BECAUSE ITS ALLEGEDLY INFERIOR PROPOSAL COULD NOT BE REGARDED AS ,UNACCEPTABLE," HAVING SATISFIED THE MINIMUM P.D. REQUIREMENTS, AND, THEREFORE, WAS IN A COMPETITIVE RANGE WITH LINK'S PROPOSAL PRICE AND OTHER FACTORS CONSIDERED. HOWEVER, THE ADMINISTRATIVE REPORT INTRODUCED THE DISTINGUISHING FACT THAT LINK'S PROPOSAL WAS CONSIDERED FAR SUPERIOR BECAUSE IT INCORPORATED A SURPRISINGLY NOVEL AND ALLEGEDLY PROPRIETARY APPROACH TO THE RFP REQUIREMENTS, AND WAS CONSIDERED TO BE SUCH A SUBSTANTIAL ADVANCEMENT IN THE STATE OF THE ART IN THE FIELD OF GRAPHIC RECORDING THAT IT RENDERED MEANINGLESS ANY NEGOTIATIONS ON THE MORE ORTHODOX APPROACH PROPOSED BY MAURER.

IN LIGHT OF THIS DEVELOPMENT, YOU NOW CONTEND, IN EFFECT, THAT THE FACTUAL DISTINCTION FROM THE SITUATION IN B-157150 IS A CREATION OF THE PROCURING ACTIVITY WHICH DEPENDS UPON AN INSUPPORTABLE PROPOSITION, TO WIT, THAT THE RFP INVITED OR PERMITTED TECHNICAL PROPOSALS WHICH DEVIATED FROM A P.D. REQUIREMENT THAT THE NEW PRODUCT BE DESIGNED IN CONFORMITY WITH A MODEL MAURER HAD SUPPLIED UNDER AN EARLIER RESEARCH AND DEVELOPMENT CONTRACT. YOU SAY THAT UNDER ASPR 3-805.1 (A) (V) AND (E), THE PROCURING ACTIVITY SHOULD HAVE ACCOMPANIED ITS RELAXATION OF THE RFP LIMITATION ON THE ORIGINALITY OF DESIGN APPROACH WITH AN AMENDMENT GIVING ALL BIDDERS AN OPPORTUNITY TO OFFER THEIR OWN EQUIPMENT. YOU BELIEVE THE FAILURE TO ISSUE SUCH AN AMENDMENT CONVERTED A COMPETITIVE PROCUREMENT INTO A SOLE SOURCE ACTION WITHOUT THE APPROVAL OF HIGHER AUTHORITY, AND PRODUCED THE REMARKABLE RESULT OF THE CONTRACT BEING AWARDED TO A FIRM WHOSE PROPOSAL DEVIATED FROM THE P.D. REQUIREMENTS INSTEAD OF TO A FIRM WHOSE PROPOSAL WAS RESPONSIVE AND SATISFACTORY.

IN ORDER TO CONSIDER THE MERITS OF YOUR ARGUMENT, WE MUST REVIEW CERTAIN PROVISIONS OF THE RFP. PART I OF THE RFP PROVIDED, IN RELEVANT PART, AS FOLLOWS:

WAIVERS TO THE REQUIREMENTS OF THE P.D. MAY BE OBTAINED ONLY IN WRITING FROM THE CONTRACTING OFFICER, ANY LANGUAGE IN THE P.D. WHICH MIGHT BE CONSTRUED TO THE CONTRARY NOTWITHSTANDING.

B. METHOD OF BIDDING:

1. A TECHNICAL PROPOSAL AS WELL AS A COST PROPOSAL MUST BE SUBMITTED.

3. BIDDERS SHALL BID IN ALL AREAS DESCRIBED IN THE P.D. ALL RECOMMENDED DEVIATIONS MUST BE BID SEPARATELY AND DESCRIBED IN DETAIL. FAILURE TO ADHERE TO THESE REQUIREMENTS MAY BE GROUNDS TO REJECT A BID AS NONRESPONSIVE.

E. GOVERNMENT FURNISHED PROPERTY:

1. THERE WILL BE NO GOVERNMENT-FURNISHED PROPERTY.

2. A PRELIMINARY ENGINEERING MODEL OF THE EQUIPMENT WILL BE AVAILABLE FOR INSPECTION PURPOSES ONLY IN THE OPERATIONS BUILDING * * *.

J. EVALUATION OF PROPOSALS:

IN THE EVALUATION OF ANY PROPOSAL RESULTING FROM THIS REQUEST FOR PROPOSAL, THE FOLLOWING GUIDELINES WILL BE USED AND ARE LISTED IN ORDER OF THEIR IMPORTANCE IN THE EVALUATION:

1. TECHNICAL PROPOSAL:

A. UNDERSTANDING OF THE PROBLEM AND INTENDED APPROACHES THERETO.

B. RESPONSIVENESS TO THE P.D.

C. WAIVERS AND DEVIATIONS FROM THE REQUIREMENTS OF THE P.D. THAT THE BIDDERS MAY ASK FOR.

2. PROGRAM MANAGEMENT:

3. COSTS:

PART II OF THE RFP SET FORTH THE FOLLOWING PROVISIONS RELATED TO THE ACCEPTANCE OF OFFERS:

I. GENERAL

A. THE GOVERNMENT IN ACCEPTING PROPOSALS RESERVES THE RIGHT:

1. TO CONSIDER AS RESPONSIVE ONLY THOSE PROPOSALS SUBMITTED IN ACCORDANCE WITH ALL REQUIREMENTS SET FORTH OR REFERENCED IN REQUEST FOR PROPOSAL. ALTERNATE PROPOSALS ARE INVITED, PROVIDED, THAT OFFEROR ALSO SUBMITS A RESPONSIVE PROPOSAL WHICH DEMONSTRATES HIS UNDERSTANDING OF THE PROBLEMS INVOLVED AND THE SCOPE OF THE PROJECT.

2. TO REJECT AS NON-RESPONSIVE, PROPOSALS DELETING OR ALTERING THE TECHNICAL REQUIREMENTS * * *.

F. NOTICE TO OFFERORS. OFFERORS ARE HEREBY NOTIFIED THAT BARGAINING WILL BE KEPT TO THE MINIMUM REQUIRED TO ESTABLISH A FAIR AND REASONABLE PRICE. THERE IS A POSSIBILITY THAT THE AWARD MAY BE MADE WITHOUT DISCUSSION OF THE INITIAL OFFERS WITH OFFERORS. THEREFORE, PROPOSALS SHOULD BE SUBMITTED OFFERING THE MOST FAVORABLE TERMS AND LOWEST PRICES, INITIALLY.

SECTION 3.2 OF THE P.D., ENTITLED "GENERAL REQUIREMENTS," CONTAINED THE FOLLOWING PARAGRAPHS PERTINENT TO YOUR PROTEST:

3.2.5 CONTRACTOR REQUESTS FOR DEVIATIONS.

3.2.5.1 PROPOSAL DEVIATIONS. IF A CONTRACTOR PROPOSES TO DEVIATE FROM THE MODEL DESIGN APPROACH OR SPECIFICATIONS, HE SHALL OUTLINE SUCH DEVIATIONS WITH HIS PROPOSAL IN SUFFICIENT DETAIL TO ALLOW A DETERMINATION BY THE GOVERNMENT OF THE EQUIVALENCE AND SUITABILITY OF SUCH CHANGE.

3.2.5.2 CONTRACT REQUESTS FOR DEVIATION. REQUESTS FOR DEVIATIONS AFTER AWARD OF CONTRACT SHALL BE * * * ACCOMPANIED BY DOCUMENTED EVIDENCE PROVING THAT THE DEVIATION WILL RESULT IN AN END ITEM WHOSE FUNCTIONAL CAPABILITIES AND OPERATIONAL SUITABILITY AND RELIABILITY ARE BETTER THAN THOSE SPECIFIED BY THE MODEL. * * *.

3.2.7 MODEL. THE MODEL IS A PRELIMINARY ENGINEERING EQUIPMENT WITH SOME "BREADBOARD" FEATURES WHICH REQUIRE REWORKING TO MEET GOOD COMMERCIAL STANDARDS.

(1) THE SAME DESIGN APPROACH AND FUNCTIONAL OPERATION APPLIED IN THE MANUFACTURE OF THE MODEL SHALL BE FOLLOWED IN THE CONSTRUCTION OF EQUIPMENT UNDER THIS P.D.

(2) THE FUNCTIONAL AND COMPONENT PARTS AND PERFORMANCE REQUIREMENTS OF THE GRAPHIC RECORDER AND PROCESSOR SHALL CONFORM TO THE MODEL WITH THE EXCEPTION OF THE MODIFICATIONS LISTED IN PARA. 3.3.3. IN CASE OF CONFLICT BETWEEN THE REQUIREMENTS OF THIS P.D. AND THE MODEL, THE PERFORMANCE OF THE MODEL (EXCEPT FOR THE CHANGES SPECIFIED IN PARA. 3.3.3.) SHALL GOVERN UNLESS WAIVERS ARE SPECIFICALLY GRANTED BY THE CONTRACTING OFFICER. THE MODEL WILL BE AVAILABLE FOR INSPECTION PURPOSES ONLY AT THE CONTRACTING AGENCY.

THE PRELIMINARY ENGINEERING MODEL OF THE GRAPHIC RECORDER AND PROCESSOR WHICH WAS MADE AVAILABLE FOR INSPECTION PURPOSES, WAS BASICALLY THE EQUIPMENT WHICH HAD BEEN SUPPLIED BY MAURER UNDER AN EARLIER RESEARCH AND DEVELOPMENT CONTRACT.

THE ABOVE-QUOTED PARAGRAPHS OF THE "GENERAL REQUIREMENTS" WERE FOLLOWED BY SECTION 3.3 OF THE P.D., "DETAILED REQUIREMENTS," WHICH SET FORTH THE BASIC FUNCTIONS, THE DETAILED SPECIFICATIONS, AND, IN THE AFOREMENTIONED PARAGRAPH 3.3.3,"MODIFICATIONS" WHICH REPRESENTED ADDITIONAL FEATURES THE CONTRACTOR WAS TO "INCORPORATE * * * INTO THE EQUIPMENT CONSTRUCTED UNDER THIS P.D.'

THE ADMINISTRATIVE AGENCY ADVISES US THAT THE LINK PROPOSAL MET ALL OF THE GENERAL DETAILED REQUIREMENTS OF THE P.D., AND IT TAKES THE POSITION THAT THE GENERAL REQUIREMENTS OF THE P.D. NOT ONLY DO NOT EXCLUDE, BUT IN PARAGRAPH 3.2.5.1,"PROPOSAL DEVIATIONS," QUOTED ABOVE, EXPLICITLY INVITE PROPOSALS DEVIATING FROM THE MODEL DESIGN. THE ADMINISTRATIVE AGENCY ALSO ADVISES THAT THE INVITATION IN THE "METHOD OF BIDDING" FOR AN "ALTERNATE" PROPOSAL ACCOMPANIED BY A "RESPONSIVE" ONE IS NOT RELEVANT TO THE INSTANT CASE, SINCE THAT INVITATION CONTEMPLATED THE RECEIPT OF A PROPOSAL WHICH, UNLIKE LINK'S PROPOSAL, DID NOT COMPLY WITH THE DETAILED REQUIREMENTS SECTION OF THE P.D. YOU POINT OUT, HOWEVER, THAT PARAGRAPH 3.2.7 IN THE GENERAL REQUIREMENTS SECTION OF THE P.D., ENTITLED "MODEL," STATES THAT THE DESIGN APPROACH AND FUNCTIONAL OPERATIONS APPLIED IN THE MANUFACTURE OF THE MODEL SHALL BE FOLLOWED IN THE CONSTRUCTION OF EQUIPMENT UNDER THE P.D., AND ASSERT THAT THIS LANGUAGE PRECLUDED THE CONTRACTING OFFICER FROM ACCEPTING A PROPOSAL WHICH IS NOT RESPONSIVE TO THE RFP BECAUSE IT OFFERS TO SUPPLY EQUIPMENT DEVIATING OR "STRAYING" FROM THE STANDARD ESTABLISHED BY YOUR CLIENT'S MODEL. IN OTHER WORDS, YOU APPEAR TO SUGGEST THAT PARAGRAPH 3.2.7 INADVERTENTLY CONTRADICTS AND HAS PREFERENCE OVER PARAGRAPH 3.2.5.1 OF THE P.D.

THE SUBJECT PARAGRAPHS, WHICH DEAL WITH THE ESSENTIALITY OR NONESSENTIALITY OF THE MODEL DESIGN APPROACH, APPEAR TO BE DELIBERATELY JUXTAPOSED IN THE SAME SECTION OF THE P.D., AND WE BELIEVE THAT A READING OF THE PARAGRAPHS IN CONTEXT WITH EACH OTHER AND WITH OTHER RELEVANT PROVISIONS OF THE RFP WILL NOT SUPPORT THE IMPLIED CONTRADICTION, MUCH LESS THE PREFERENCE, YOU SELECT.

PARTS I AND II OF THE RFP TREATED AND DISCOURAGED THE SUBMISSION OF A PROPOSAL WHICH, BECAUSE IT REQUESTED "WAIVERS" OR "DEVIATIONS" TO THE REQUIREMENTS, OR BECAUSE IT WAS EITHER AN ,ALTERNATE PROPOSAL," OR A PROPOSAL "DELETING OR ALTERING THE TECHNICAL REQUIREMENTS," WAS NOT RESPONSIVE TO THE TECHNICAL PERFORMANCE REQUIREMENTS OF THE P.D. THE ONLY REFERENCE IN THESE SECTIONS OF THE RFP WHICH WAS CONCERNED WITH THE MODEL WAS THE FACT THAT ONE WAS AVAILABLE FOR INSPECTION. HOWEVER, THE RFP DID STATE THAT THE MOST IMPORTANT EVALUATION GUIDELINE WAS THE PROPOSER'S UNDERSTANDING OF THE PROBLEM AND INTENDED APPROACHES THERETO.

PARAGRAPHS 3.2.7 AND 3.2.5 OF THE P.D. ADDRESSED THEMSELVES TO THE EFFICACY OF THE MODEL DESIGN APPROACH. PARAGRAPHS 3.2.7 RECOGNIZES THAT THE MODEL AS DESIGNED IS ONLY PRELIMINARY ENGINEERING EQUIPMENT, AND SUBPARAGRAPH 3.2.7 (2) ACCORDS PREFERENCE TO THE MODEL OVER ANY CONFLICTING REQUIREMENTS OF THE P.D., NOT WITH RESPECT TO ITS DESIGN, BUT WITH RESPECT TO ITS PERFORMANCE. PARAGRAPH 3.2.5.1 REQUIRES PROPOSALS DEVIATING FROM THE MODEL DESIGN TO DEMONSTRATE "EQUIVALENCY," WHICH OBVIOUSLY REFERS TO EQUIVALENT PERFORMANCE. PARAGRAPH 3.2.5.2, DEALING WITH DESIGN DEVIATIONS PROPOSED AFTER AWARD, REQUIRES EVIDENCE THAT SUCH CHANGES WILL RESULT IN AN END PRODUCT WITH SUPERIOR PERFORMANCE CHARACTERISTICS. IN LIGHT OF THE ABOVE, WE THINK THE CLEAR IMPORT OF PARAGRAPHS 3.2.5.1 AND 3.2.7, WHEN READ IN PROPER CONTEXT, IS THAT WHILE A TECHNICAL PROPOSAL COMPLYING WITH THE REQUEST IN 3.2.5.1 TO DEVIATE FROM THE MODEL DESIGN APPROACH WILL NOT BE CONSIDERED RESPONSIVE UNLESS IT DEMONSTRATES PERFORMANCE CHARACTERISTICS WHICH MEET THE DETAILED REQUIREMENTS OF THE RFP AND WHICH ARE EQUIVALENT TO THOSE OF THE MODEL, A PROPOSAL COMPLYING WITH THE ALTERNATIVE REQUEST IN 3.2.7 TO FOLLOW THE MODEL DESIGN APPROACH NEED ADDRESS ITSELF ONLY TO THE P.D. REQUIREMENTS IN PARAGRAPH 3.3.3 RELATED TO MODIFYING THE "BREADBOARD" FEATURES OF SUCH MODEL. THEREFORE, WE ARE OF THE VIEW THAT THE RFP DID NOT CONTAIN A REQUIREMENT THAT ALL PROPOSALS TO MANUFACTURE EQUIPMENT IN ACCORDANCE WITH THE P.D. HAD TO OFFER TO DESIGN SUCH EQUIPMENT IN CONFORMITY WITH THE MAURER MODEL, AND THAT COMPETITION WAS SOLICITED AND OBTAINED ON THE BASIS OF AN RFP FOR EQUIPMENT DESIGNED EITHER IN CONFORMITY WITH A MODEL OR IN A MANNER WHICH MET OR EXCEEDED SPECIFIED TECHNICAL REQUIREMENTS. AS A RESULT OF THIS VIEW, WE FIND NOTHING REMARKABLE IN THE PROPOSITION THAT A TECHNICAL PROPOSAL WHICH RESPONDS TO AN RFP SOLICITATION FOR PROPOSALS DEVIATING FROM THE DESIGN OF A "PRELIMINARY ENGINEERING" MODEL MAY BE NOT ONLY RESPONSIVE TO THE PERFORMANCE CHARACTERISTICS OF THE MODEL AND TO THE TECHNICAL REQUIREMENTS OF THE P.D., BUT ALSO SO FAR SUPERIOR TO AN OFFER PROPOSING TO CONFORM TO THE MODEL DESIGN THAT MEANINGFUL NEGOTIATIONS COULD BE CONDUCTED ONLY WITH THE FIRM PROPOSING THE MORE ORIGINAL APPROACH TO MEETING SUCH REQUIREMENTS.

IN VIEW OF THE ABOVE, AND THE ABSENCE OF EVIDENCE THAT THE LINK PROPOSAL WAS NOT PROPRIETARY OR DID NOT REPRESENT A SUBSTANTIAL ADVANCEMENT IN THE STATE OF THE ART, WE MUST CONCLUDE THAT NEGOTIATIONS WERE PROPERLY CONDUCTED WITH A FIRM WHOSE PROPOSAL WAS THE ONLY WITH A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED. CONSEQUENTLY, WE FIND NO LEGAL BASIS FOR OBJECTION TO THE CONTRACT AWARDED PURSUANT TO THOSE NEGOTIATIONS, AND ACCORDINGLY, MUST DENY YOUR PROTEST.