B-159540, JANUARY 11, 1967, 46 COMP. GEN. 606

B-159540: Jan 11, 1967

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OFFERED TECHNICAL DEFICIENCIES THE ADMINISTRATIVE DETERMINATION THAT A DESIGN FOR HIGHLY SPECIALIZED SCIENTIFIC EQUIPMENT WAS TECHNICALLY UNACCEPTABLE IS NOT AN INTRODUCTION OF "NEW REQUIREMENTS" INTO THE PROCUREMENT JUSTIFYING FURTHER NEGOTIATION. ALTHOUGH IT IS REGRETTABLE THE PROCURING AGENCY FAILED TO TIMELY ISSUE TO THE BIDDER THE PREAWARD NOTICE OF EQUIPMENT UNACCEPTABILITY REQUIRED BY PARAGRAPH 3-508.2 OF THE REGULATION. REJECTION OF THE PROPOSAL IS UPHELD. 1967: REFERENCE IS MADE TO LETTERS DATED JUNE 24. PROPOSALS WERE INVITED TO DEVELOP. IT WAS CONTEMPLATED THAT A FIRM FIXED PRICE CONTRACT WOULD BE NEGOTIATED. OFFERORS WERE ADMONISHED TO CAREFULLY REVIEW ALL TERMS. WERE ADVISED THAT THE CONTRACTING OFFICER MIGHT CONSIDER ORIGINAL PROPOSALS AS FINAL WITHOUT EXTENDING TO BIDDERS THE PRIVILEGE OF REVISING QUOTATIONS OR CONDUCTING FURTHER NEGOTIATIONS.

B-159540, JANUARY 11, 1967, 46 COMP. GEN. 606

CONTRACTS - SPECIFICATIONS - CONFORMABILITY OF EQUIPMENT, ETC., OFFERED TECHNICAL DEFICIENCIES THE ADMINISTRATIVE DETERMINATION THAT A DESIGN FOR HIGHLY SPECIALIZED SCIENTIFIC EQUIPMENT WAS TECHNICALLY UNACCEPTABLE IS NOT AN INTRODUCTION OF "NEW REQUIREMENTS" INTO THE PROCUREMENT JUSTIFYING FURTHER NEGOTIATION, THE DEFICIENT PROPOSAL NOT COMING WITHIN THE COMPETITIVE TECHNICAL RANGE CONTEMPLATED BY PARAGRAPH 3-805.1 (A) OF THE ARMED SERVICES PROCUREMENT REGULATION, AND KNOWLEDGE OF THE ULTMATE USE OF THE END PRODUCT BEING IMPUTED TO THE BIDDER, THE SPECIFICATIONS MAY NOT BE AMENDED, NOR BIDS MODIFIED. ALTHOUGH IT IS REGRETTABLE THE PROCURING AGENCY FAILED TO TIMELY ISSUE TO THE BIDDER THE PREAWARD NOTICE OF EQUIPMENT UNACCEPTABILITY REQUIRED BY PARAGRAPH 3-508.2 OF THE REGULATION, THE EQUIPMENT OFFERED HAVING BEEN PROPERLY EVALUATED AS TECHNICALLY DEFICIENT, REJECTION OF THE PROPOSAL IS UPHELD.

TO KPT MANUFACTURING COMPANY, JANUARY 11, 1967:

REFERENCE IS MADE TO LETTERS DATED JUNE 24, 1966, JULY 13, 1966, SEPTEMBER 15, 1966, AND NOVEMBER 7, 1966, WRITTEN IN YOUR BEHALF AND PROTESTING THE CONTEMPLATED AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) 41-609-66-166 TO ANY OFFEROR OTHER THAN KPT.

BY LETTER DATED MARCH 7, 1966, FROM HEADQUARTERS AEROSPACE MEDICAL DIVISION (AFSC), BROOKS AIR FORCE BASE, TEXAS, PROPOSALS WERE INVITED TO DEVELOP, DESIGN, FABRICATE AND INSTALL A DEVICE FOR IMPOSING A WIDE SPECTRUM OF CORIOLIS ACCELERATIONS UPON A HUMAN SUBJECT. IT WAS CONTEMPLATED THAT A FIRM FIXED PRICE CONTRACT WOULD BE NEGOTIATED. ON THE SECOND PAGE OF THE REFERENCED LETTER, OFFERORS WERE ADMONISHED TO CAREFULLY REVIEW ALL TERMS, CONDITIONS AND SPECIFICATIONS OF THE RFP, AND WERE ADVISED THAT THE CONTRACTING OFFICER MIGHT CONSIDER ORIGINAL PROPOSALS AS FINAL WITHOUT EXTENDING TO BIDDERS THE PRIVILEGE OF REVISING QUOTATIONS OR CONDUCTING FURTHER NEGOTIATIONS. OFFERORS WERE ALSO INFORMED THAT FAILURE OF THEIR PROPOSALS TO BE ACCEPTED FOR AWARD WILL NOT NECESSARILY REFLECT ANY DEFICIENCIES, BUT ONLY THAT ANOTHER PROPOSAL WAS CONSIDERED TO BE MORE ADVANTAGEOUS TO THE GOVERNMENT. PARAGRAPH 7 OF THE SAME LETTER STATED THAT PROPOSALS WOULD BE EVALUATED PRIMARILY ON COMPARATIVE TECHNICAL AND MANAGERIAL ABILITIES OF THE PROPOSED CONTRACTORS WHO WERE RESPONSIVE TO STATED AIR FORCE REQUIREMENTS.

YOUR PROPOSAL WAS RECEIVED BEFORE THE CLOSING DATE, APRIL 7, 1966, AT THE FIXED PRICE OF $78,507. SINCE AWARD OF A CONTRACT HAS NOT BEEN MADE, THE IDENTITY AND NUMBER OF OTHER OFFERORS OR INFORMATION CONCERNING THEIR PROPOSALS MAY NOT BE MADE AVAILABLE TO YOUR COMPANY. SEE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-507.2 AND 3-805.1 (B).

THE DEPARTMENT OF THE AIR FORCE REPORTS THAT YOUR PROPOSAL IS CONSIDERED TECHNICALLY UNACCEPTABLE ON THE BASIS OF SAFETY FACTORS, SINCE YOUR DESIGN APPROACH, WHICH EMPLOYS THE USE OF A GIMBAL RING WITH AN INTERNAL DIAMETER OF APPROXIMATELY 25 INCHES AND WHICH AT VARIOUS TIMES DURING THE TESTING OPERATION WOULD SURROUND THE SUBJECT AT THE LOWER THORAX IS SAID TO PRECLUDE RAPID REMOVAL OF AN UNCONSCIOUS SUBJECT FROM THE DEVICE IN THE EVENT OF A SEVERE AUTONOMIC RESPONSE (E.G., CARDIAC ARREST) DUE TO THE CORIOLIS STIMULATION. IN THIS CONNECTION THE AIR FORCE REPORT CONTAINS THE FOLLOWING ANALYSIS OF YOUR PROPOSAL:

REMOVAL OF GIMBAL RING WOULD REQUIRE THAT ANOTHER MEANS OF SUPPORTING THE CHAIR BE DEVISED; E., THAT THE PLATFORM BE SLUNG FROM THE GIMBALS, WITH THE CHAIR BEING SUPPORTED ON ITS FLOOR. ACCORDING TO DIMENSIONS DEDUCED FROM THE DRAWINGS, THIS WOULD REQUIRE A GREATER SEPARATION FROM THE PILLARS OF THE PRIMARY YOKE IN ORDER TO ACCOMMODATE THE FOOTREST. MORE THAN THAT, IT WOULD REQUIRE AN ELEVATION OF THE SECONDARY GIMBALS TO PROVIDE CLEARANCE FOR THE FLOOR AND WOULD ADD TO THE HEIGHT OF THE DEVICE, WHICH IS ALREADY EXCESSIVE. INSTALLATION OF THIS DEVICE IN EXISTING LABORATORY FACILITIES WOULD REQUIRE THAT A HOLE APPROXIMATELY 35 INCHES IN DIAMETER BE CUT IN THE LABORATORY FLOOR, WITH THE SHAFT AND DRIVE OF THE PRIMARY AXIS BEING MOUNTED BELOW FLOOR LEVEL WHICH COULD UNDERMINE THE STRUCTURAL INTEGRITY OF THAT PORTION OF THE BUILDING.

MINOR MODIFICATIONS WOULD NOT SOLVE THE PROBLEM.

UNDER DATE OF NOVEMBER 7, 1966, YOU EXPRESSED YOUR OBJECTION TO THAT PORTION OF THE AIR FORCE REPORT AS FOLLOWS:

1. THE KPT DESIGN PROPOSAL CAN BE READILY MODIFIED TO ELIMINATE THE GIMBAL RING WHICH BROOKS AFB NOW CONSIDERS OBJECTIONABLE.

2. THESE MODIFICATIONS WOULD NOT BE DIFFICULT TO INCORPORATE AT THIS TIME SINCE THE KPT DESIGN PROPOSAL EXISTS ONLY ON PAPER AND CAN BE MODIFIED WHEN DETAILED BROOKS REQUIREMENTS, IN ADDITION TO THOSE STATED IN THE RFP, ARE MADE KNOWN TO KPT.

3. ONE POSSIBLE MODIFICATION WOULD INVOLVE THE USE OF A FRAME IN THE PLANE OF THE LONG AXIS OF THE SUBJECT, WITH A SEAT FRAME SUPPORTED THEREIN AT ITS EXTREMITIES, IN SUCH MANNER AS TO PROVIDE FOR THE REQUIRED SEAT POSITIONING AT 15 DEGREE ROTATIONAL INTERVALS.

YOUR PROTEST IS MADE ON SEVERAL GROUNDS, WHICH RELATE PRINCIPALLY TO THE PROPRIETY OF THE DEPARTMENT'S ACTION IN FINDING YOUR PROPOSAL TECHNICALLY UNACCEPTABLE, TO ITS SUBSEQUENT FAILURE TO INFORM YOU OF THE REASON FOR THIS DETERMINATION UNTIL AFTER YOU FILED A PROTEST WITH THIS OFFICE; THAT THE HISTORY OF PROCUREMENTS AT THE BROOKS INSTALLATION INDICATES THE AIR FORCE MAY HAVE REJECTED KPT REGARDLESS OF PRICE OR TECHNICAL MERIT; AND THAT ANY NEW REQUIREMENTS CONCERNING THIS PROCUREMENT SHOULD EITHER BE HANDLED BY FURTHER NEGOTIATION EFFORTS WITH KPT OR BY GIVING ALL BIDDERS A CHANCE TO MODIFY THEIR BIDS.

IN REPORTING TO THIS OFFICE ON THE MATTER THE DEPARTMENT STATES THAT KPT SHOULD HAVE REALIZED THE POSSIBILITY OF HAVING TO QUICKLY REMOVE THE SUBJECT FROM THE DEVICE AND THAT THIS WAS A FACTOR WHICH SHOULD HAVE BEEN CONSIDERED IN ITS DESIGN APPROACH. THE AIR FORCE REPORT FURTHER STATES THAT:

* * * IN THIS REGARD THE RFP IN THE STATEMENT OF WORK UNDER SECTION A "BACKGROUND" STATES THAT PILOTS IN THE F-84 EXPERIENCED CORIOLIS ACCELERATIONS WHEN THEY TURNED THEIR HEADS IN AN APPROACH TURN IN ORDER TO MANIPULATE THEIR RADARS. SOME OF THEM DIED AS A RESULT. PROSPECTIVE PROPOSERS WERE THUS ADVISED OF THE POSSIBLE FATAL IMPACT ON HUMANS OF CORIOLIS ACCELERATION. OTHER LESS VIOLENT HUMAN REACTIONS WERE ALSO IDENTIFIED. THE TITLE OF THE STATEMENT OF WORK SPECIFICALLY STATES THAT THE DEVICE IS TO BE USED TO IMPOSE CORIOLIS ACCELERATIONS UPON HUMAN SUBJECTS. PROSPECTIVE PROPOSERS WERE FURTHER INFORMED THAT THIS DEVICE WAS TO BE USED TO OBTAIN DATA TO TRAIN PILOTS AGAINST PROBLEMS ORIGINATING FROM CORIOLIS STIMULATION. PROSPECTIVE OFFERORS WERE THUS MADE KNOWN OF THE SAFETY HAZARD INVOLVED IN THE USE OF THIS DEVICE.

IT IS YOUR POSITION THAT THE DETERMINATION BY AIR FORCE TECHNICAL PERSONNEL THAT YOUR PROPOSAL WAS TECHNICALLY UNACCEPTABLE IS ARBITRARY AND CONFLICTS WITH THE FOLLOWING REQUIREMENTS OF THE FP:

* * * THE CHAIR MUST BE PROVIDED WITH LATERAL WINGS EXTENDING FROM THE FEET UP TO SHOULDER HEIGHT. THESE WINGS MUST BE PLANAR RATHER THAN SCULPTURED AND SUFFICIENTLY HEAVY TO PERMIT DRILLING AND TAPPING FOR THE MOUNTING OF ACCESSORIES. THE SPACE ABOUT THE SUBJECT'S HEAD MUST BE UNENCUMBERED SO THAT A HEAD HOLDER CAN BE MOUNTED. THE SPACE BETWEEN THE SUBJECT'S BODY AND THE WINGS MUST BE READILY FILLED WITH SPONGY OR PNEUMATIC CUSHIONS SO THAT AS TO PROVIDE RAPID AND COMFORTABLE IMMOBILIZATION OF THE BODY. THE FOLLOWING QUOTE FROM YOUR LETTER OF SEPTEMBER 15, 1966, ILLUSTRATES THE ALLEGED CONFLICT BETWEEN THE STATEMENT OF WORK AND AIR FORCE'S DETERMINATION THAT YOUR PROPOSAL IS UNACCEPTABLE.

5. KPT MFG. CO. DOES NOT ACCEPT THIS STATEMENT AS A BASIS FOR REJECTION OF OUR PROPOSAL. THE CONDITION MENTIONED IS IN DIRECT CONFLICT WITH THE STATEMENT OF WORK PREPARED BY THE BROOKS AIR FORCE BASE FOR THE REQUIREMENTS OF RFP 41-609-66-166.

A. THE STATEMENT OF WORK CONTAINS NO STATEMENT PRECLUDING THE USE OF A GIMBAL RING.

B. THE STATEMENT OF WORK DOES REQUIRE THAT "THE SPACE ABOUT THE SUBJECT'S HEAD MUST BE UNENCUMBERED SO THAT A HEAD HOLDER CAN BE MOUNTED. THIS IS THE ONLY STATEMENT SPECIFYING THE AMOUNT OF UNENCUMBERED SPACE ABOUT THE SUBJECT AND SPECIFICALLY REFERS ONLY TO THE ROOM NECESSARY TO MOUNT A HEAD HOLDER, AND THEREFORE ALLOWS OTHER SPACE CONSIDERATIONS TO THE OPTION OF THE PROPOSED DESIGN CONCEPT.

C. THE REQUIREMENT FOR "RAPID REMOVAL OF AN UNCONSCIOUS SUBJECT" IS NOT CONTAINED IN THE STATEMENT OF WORK.

D. THE STATEMENT OF WORK DOES CONTAIN A REQUIREMENT IN DIRECT CONFLICT WITH THIS NEW CONDITION. PARAGRAPH 3-D OF THE OBJECTIVES AND CRITERIA SPECIFIES "TO PROVIDE RAPID AND COMFORTABLE IMMOBILIZATION OF THE BODY.' WEBSTER'S DICTIONARY DEFINES IMMOBILIZE AS "TO PREVENT THE MOVEMENT OF, TO KEEP IN PLACE.'

ADDITIONALLY, YOU QUESTION WHETHER THERE IS A NEED FOR RAPID REMOVAL SINCE YOU CLAIM DEATH IS NOT NORMALLY POSSIBLE AS A RESULT OF CORIOLIS ACCELERATION IF THE SUBJECT IS PROPERLY SUPPORTED AND RESTRAINED AGAINST IMPACT WITH THE DEVICE STRUCTURE OR ITS SURROUNDINGS (AS HE WOULD BE IN THE KPT DESIGN), AND ALSO BECAUSE THE CUSTOMARY PRACTICE IN THE EVENT OF A "CARDIAC ARREST" IS TO KEEP THE SUBJECT COMFORTABLE AND IMMOBILE RATHER THAN REMOVING HIM. IN ANY EVENT YOU CONTEND THAT THE KPT STRUCTURE IS CONDUCIVE TO RAPID AND COMFORTABLE IMMOBILIZATION, AND AT THE SAME TIME IS ENTIRELY OPEN TO MEDICAL PERSONNEL WHO MAY NEED RAPID ACCESS TO THE SUBJECT OR REQUIRE RAPID REMOVAL IN CASE OF MEDICAL EMERGENCY.

AS A GENERAL RULE THIS OFFICE HAS HELD THAT A DETERMINATION OF THE NEEDS OF THE GOVERNMENT AND THE METHOD OF ACCOMMODATING SUCH NEEDS IS PRIMARILY THE RESPONSIBILITY OF THE PROCURING AGENCY, AS IS THE EVALUATION OF PROPOSALS RECEIVED, AND IN THE ABSENCE OF EVIDENCE OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR THE ACTION TAKEN WE ARE NOT REQUIRED TO OBJECT TO SAME. SEE 40 COMP. GEN. 35, 38. THAT RULE IS PARTICULARLY PERTINENT WHERE THE PROCUREMENT IS FOR EQUIPMENT OF A HIGHLY SPECIALIZED SCIENTIFIC NATURE AND THE DETERMINATIONS MUST BE BASED ON EXPERT TECHNICAL OPINION. SEE B-152001, JANUARY 10, 1964.

WE ARE UNABLE TO AGREE WITH YOUR CONTENTION THAT THE REQUIREMENT FOR RAPID REMOVAL OF A SUBJECT IS IN DIRECT CONFLICT WITH THE STATEMENT OF WORK. IN OUR OPINION THE FACT THAT THE STATEMENT OF WORK ONLY REQUIRED ALLOWANCE OF SUFFICIENT SPACE TO MOUNT A HEADHOLDER MAY NOT REASONABLY BE INTERPRETED AS IMPLIED APPROVAL OF A DESIGN WHICH WOULD SURROUND THE ENTIRE LOWER THORAX OF THE SUBJECT IF SUCH DESIGN WOULD RESULT IN PREVENTING RAPID REMOVAL OF THE SUBJECT. NEITHER DO WE CONSIDER THE ABSENCE OF ANY EXPRESS REQUIREMENT IN THE STATEMENT OF WORK FOR A DESIGN PERMITTING RAPID REMOVAL OF THE SUBJECT AS A SUFFICIENT LEGAL BASIS FOR OBJECTING TO THE PROPOSED AWARD, SINCE WE SEE NO VALID BASIS FOR IMPOSING AN OBLIGATION ON A PROCURING AGENCY TO ADVISE OFFERORS OF ANY OR ALL DESIGN APPROACHES WHICH MAY RESULT IN A TECHNICALLY UNACCEPTABLE PROPOSAL. THIS OFFICE HAS HELD THAT NEGOTIATION AUTHORITY MAY LEGALLY TAKE INTO CONSIDERATION ALL FACTORS DEEMED ESSENTIAL TO THE ACCOMPLISHMENT OF THE PROCUREMENT, AND WHERE A PROPOSAL IS DETERMINED TO BE TECHNICALLY UNACCEPTABLE TO MEET THE GOVERNMENT'S MINIMUM NEEDS WE WILL NOT ORDINARILY QUESTION IT. SEE B 150271, FEBRUARY 4, 1963. WE ALSO NOTE THAT ASPR 4- 205.4 (B) (I) REQUIRES EVALUATIONS OF PROPOSALS FOR RESEARCH AND DEVELOPMENT PROCUREMENTS TO INCLUDE A CONSIDERATION OF THE PROPOSED TECHNICAL APPROACH.

CONCERNING YOUR CONTENTION THAT "NEW REQUIREMENTS" IN THIS PROCUREMENT SHOULD EITHER BE HANDLED BY FURTHER NEGOTIATION EFFORTS WITH KPT OR BY GIVING ALL BIDDERS A CHANCE TO MODIFY THEIR BIDS, WE DO NOT BELIEVE THE RECORD ESTABLISHES THAT NEW REQUIREMENTS HAVE BEEN INTRODUCED INTO THE PROCUREMENT. NEITHER DO WE BELIEVE THE REGULATIONS WHICH DEAL DIRECTLY WITH YOUR REQUESTED ALTERNATIVES REQUIRE SUCH ACTION IN THE INSTANT CASE. ASPR 3-805.1 (A) REQUIRES DISCUSSIONS ONLY WITH OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED, EXCEPT IN CERTAIN ENUMERATED CIRCUMSTANCES WHICH ARE NOT APPLICABLE HERE. THE TERM "OTHER ACTORS" MUST BE CONSTRUED TO INCLUDE THE TECHNICAL ACCEPTABILITY OF PROPOSALS, AND SINCE AIR FORCE TECHNICAL PERSONNEL HAVE DETERMINED YOUR PROPOSAL TO BE SO DEFICIENT THAT MAJOR MODIFICATIONS WOULD BE NECESSARY TO MAKE IT ACCEPTABLE, WE ARE UNABLE TO CONCLUDE THAT YOUR PROPOSAL WAS WITHIN A COMPETITIVE TECHNICAL RANGE SO AS TO REQUIRE FURTHER DISCUSSIONS PURSUANT TO ASPR 3-805.1 (A). SEE B-150658, MAY 6, 1963, AND 40 COMP. GEN. 35, 38.

CONCERNING YOUR REQUEST FOR AN OPPORTUNITY TO MODIFY YOUR PROPOSAL, WE FIND NO BASIS FOR SUCH MODIFICATION UNLESS ASPR 3-805.1 (E) IS DEEMED APPLICABLE. THIS PROVISION STATES IN PERTINENT PART THAT:

(E) WHEN, DURING NEGOTIATIONS, A SUBSTANTIAL CHANGE OCCURS IN THE GOVERNMENT'S REQUIREMENTS OR A DECISION IS REACHED TO RELAX, INCREASE OR OTHERWISE MODIFY THE SCOPE OF THE WORK OR STATEMENT OF REQUIREMENTS, SUCH CHANGE OR MODIFICATION SHALL BE MADE IN WRITING AS AN AMENDMENT TO THE REQUEST FOR PROPOSAL OR REQUEST FOR QUOTATIONS, AND A COPY SHALL BE FURNISHED TO EACH PROSPECTIVE CONTRACTOR. SEE 3-505 AND 3-507.

IN OUR OPINION THE DEPARTMENT'S REJECTION OF YOUR PROPOSAL FOR FAILURE TO PROVIDE FOR RAPID REMOVAL OF A HUMAN SUBJECT IS NOT BASED UPON A SUBSTANTIAL CHANGE IN THE GOVERNMENT'S REQUIREMENTS NECESSITATING THE ISSUING OF AN AMENDMENT SINCE IN THE OPINION OF COGNIZANT AIR FORCE TECHNICAL PERSONNEL, BIDDERS SHOULD HAVE REALIZED IN THE DEVELOPMENT AND DESIGNING OF THEIR PROPOSALS THAT THE ULTIMATE USE OF THE END PRODUCT REQUIRED RAPID REMOVAL FOR SAFETY REASONS. THE IMPUTATION OF THIS REALIZATION TO BIDDERS IS BASED UPON MEDICAL CONSIDERATIONS, AND SINCE WE HAVE PROVIDED YOU WITH THE OPPORTUNITY TO REPLY TO AIR FORCE'S COMMENTS IN THIS REGARD, AND IT HAS NOT BEEN SHOWN THAT AIR FORCE'S JUDGMENT IS IN ERROR, WE FEEL REQUIRED TO ACCEPT THE JUDGMENT OF KNOWLEDGEABLE PERSONNEL AT THE PROCURING ACTIVITY. EVEN THOUGH THE USE OF A GIMBAL RING MAY BE, AS YOU CONTEND, THE BEST METHOD OF MEETING CERTAIN FUNCTIONAL REQUIREMENTS IN THE RFP (E.G., MINIMUM RPM REQUIREMENTS) THE OBJECTION OFFERED BY THE AIR FORCE MUST SUPERSEDE ANY FUNCTIONAL MOTIVATION FOR ITS USE. CONCERNING YOUR CONTENTION THAT KPT WAS DENIED INFORMATION REGARDING THE REQUIREMENTS TO BE USED AS A BASIS FOR TECHNICAL EVALUATION IN THAT THE EXISTENCE OF A DEVICE ALREADY INSTALLED AT BROOKS WAS NOT REVEALED, AND THAT ANOTHER CONTRACTOR MAY HAVE BEEN ABLE TO OBTAIN FIRSTHAND INFORMATION FROM THE OPERATING GROUP AT BROOKS THEREBY CREATING AN UNFAIR COMPETITIVE ADVANTAGE, YOU HAVE SUBMITTED NO EVIDENCE IN SUPPORT OF SUCH CONTENTION AND THE RECORD DOES NOT INDICATE THAT SUCH INFORMATION WAS AVAILABLE TO, OR RELIED UPON BY, ANY OTHER OFFEROR IN PREPARING ITS PROPOSAL.

REGARDING YOUR BELIEF THAT THE HISTORY OF PROCUREMENTS AT THE BROOKS INSTALLATION INDICATES THAT AIR FORCE MAY HAVE REJECTED KPT IN THE INSTANT CASE REGARDLESS OF PRICE OR TECHNICAL MERIT, YOU HAVE SUBMITTED A TABULATION SHOWING THAT THREE CONTRACTS WERE AWARDED TO ONE OF YOUR COMPETITORS BY THE CONTRACTING ACTIVITY BETWEEN NOVEMBER 1963 AND FEBRUARY 1964, AND THAT TWO OF SUCH CONTRACTS WERE AWARDED AT PRICES IN EXCESS OF YOUR BID PRICE. SINCE WE HAVE NO RECORD THAT YOUR COMPANY SUBMITTED PROTESTS AGAINST SUCH AWARDS AT THE TIME THEY WERE MADE, WE MUST ASSUME THAT YOU DID NOT CONSIDER THE AWARDS IMPROPER. IN ANY EVENT, THE MERIT OF YOUR PRESENT PROTEST MUST BE JUDGED SOLELY ON THE BASIS OF THE FACTS AND CIRCUMSTANCES SURROUNDING THE PRESENT PROCUREMENT, AND WE MUST THEREFORE DECLINE TO INSTITUTE A PRESENT INVESTIGATION OF, OR TO CONSIDER THE FACTS AND CIRCUMSTANCES INVOLVED IN, THE 1963 AND 1964 PROCUREMENTS.

IN OUR OPINION THE RECORD DOES NOT JUSTIFY THE DEPARTMENT'S FAILURE TO INFORM YOU OF ITS REASON FOR FINDING YOUR PROPOSAL UNACCEPTABLE UNTIL AFTER YOUR PROTEST WAS LODGED IN THIS OFFICE. ITS FAILURE RESULTED IN A VIOLATION OF ASPR 3-508.2, WHICH PROVIDES AS FOLLOWS:

3-508.2 PRE-AWARD NOTICE OF UNACCEPTABLE OFFERS. IN ANY PROCUREMENT IN EXCESS OF $10,000 IN WHICH IT APPEARS THAT THE PERIOD OF EVALUATION OF PROPOSALS IS LIKELY TO EXCEED 30 DAYS OR IN WHICH A LIMITED NUMBER OF SUPPLIERS HAVE BEEN SELECTED FOR ADDITIONAL NEGOTIATION (SEE 3-805.1), THE CONTRACTING OFFICER, UPON DETERMINATION THAT A PROPOSAL IS UNACCEPTABLE, SHALL PROVIDE PROMPT NOTICE OF THAT FACT TO THE SOURCE SUBMITTING THE PROPOSAL. SUCH NOTICE NEED NOT BE GIVEN WHERE THE PROPOSED CONTRACT IS TO BE AWARDED WITHIN A FEW DAYS AND NOTICE PURSUANT TO 3-508.3 BELOW WOULD SUFFICE. IN ADDITION TO STATING THAT THE PROPOSAL HAS BEEN DETERMINED UNACCEPTABLE, NOTICE TO THE OFFEROR SHALL INDICATE, IN GENERAL TERMS, THE BASIS FOR SUCH DETERMINATION AND SHALL ADVISE THAT, SINCE FURTHER NEGOTIATION WITH HIM CONCERNING THIS PROCUREMENT IS NOT CONTEMPLATED, A REVISION OF HIS PROPOSAL WILL NOT BE CONSIDERED. YOU INQUIRED INTO THE STATUS OF AFSC'S EVALUATION OF PROPOSALS BY LETTER DATED MAY 16, 1966. MAY 19, 1966, AIR FORCE INFORMED YOUR FIRM THAT PROPOSALS WERE STILL BEING EVALUATED AND THAT THE FORMAL EVALUATION WAS EXPECTED TO BE RECEIVED BY THE R AND D CONTRACTS DIVISION DURING THE WEEK OF MAY 23, 1966. RESPONDING TO ANOTHER KPT INQUIRY DATED JUNE 13, 1966, AFSC, BY LETTER OF JUNE 16, 1966, INFORMED YOU THAT NEGOTIATIONS HAD BEEN CONCLUDED AND AWARD WAS PENDING AND THAT THE NAME OF THE COMPANY SELECTED, CONTRACT PRICE, AND OTHER PERTINENT DATA WOULD BE FURNISHED TO YOU AS SOON AS THE CONTRACT WAS AWARDED. THE RECORD INDICATES THAT YOUR PROPOSAL WAS EVALUATED AS "TECHNICALLY UNACCEPTABLE" BY AN EVALUATION REPORT DATED MAY 19, 1966. HOWEVER, IT APPARENTLY WAS NOT UNTIL YOUR REPRESENTATIVE TELEPHONICALLY CONTACTED DR. CRAMER (AIR FORCE PERSONNEL AT BROOKS) ON JULY 12, 1966, THAT ANY INDICATION WAS GIVEN OF THE REASONS FOR DETERMINING YOUR PROPOSAL TO BE UNACCEPTABLE. IT IS REGRETTABLE THAT KPT WAS NOT ACCORDED THE TREATMENT CONTEMPLATED BY THE NOTICE PROVISIONS OF THE PROCUREMENT REGULATIONS, HOWEVER, WE BELIEVE YOU HAVE SUBSEQUENTLY BEEN INFORMED OF ALL THE REASONS FOR THE DEPARTMENT'S POSITION. BASED UPON OUR REVIEW OF THESE REASONS WE MUST CONCLUDE THAT THEY ARE LEGALLY SUFFICIENT TO SUPPORT THE ACTION PROPOSED TO BE TAKEN BY THE AIR FORCE IN THIS MATTER.