B-160006, DEC. 22, 1966

B-160006: Dec 22, 1966

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 31. THIS WAS A TWO-STEP PROCUREMENT COVERING THE PURCHASE OF ANALOG COMPUTERS. AN EVALUATION OF EACH WAS MADE TO DETERMINE COMPLIANCE WITH SPECIFICATION REQUIREMENTS AND ON AUGUST 12. WERE DETERMINED TO BE UNACCEPTABLE. YOU WERE ADVISED OF THIS DETERMINATION BY LETTER OF AUGUST 22. BIDS WERE SOLICITED FROM THE THREE CONCERNS WHOSE TECHNICAL PROPOSALS WERE CONSIDERED ACCEPTABLE AND AWARD WAS MADE ON AUGUST 30. WHICH WAS NOT CONSIDERED TO BE EQUIVALENT TO THE OSCILLOSCOPE REQUIREMENT. UPON RECEIPT OF THE CONTRACTING OFFICER'S LETTER OF AUGUST 22 YOU REQUESTED RECONSIDERATION OF THE MATTER AND A CONFERENCE WAS HELD AT THE NAVAL AIR DEVELOPMENT CENTER BETWEEN GOVERNMENT LEGAL.

B-160006, DEC. 22, 1966

TO SIMULATORS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 31, 1966, PROTESTING REJECTION OF YOUR PROPOSAL UNDER REQUEST FOR PROPOSALS (RFP) NO. N-62269- 67-4-0100, ISSUED AT THE U.S. NAVAL AIR DEVELOPMENT CENTER, JOHNSVILLE, PENNSYLVANIA.

THIS WAS A TWO-STEP PROCUREMENT COVERING THE PURCHASE OF ANALOG COMPUTERS. THE FIRST STEP INVOLVED SOLICITATION OF TECHNICAL PROPOSALS BY LETTER OF JULY 14, 1966, WHILE INCLUDED ADVICE THAT BIDS WOULD BE SOLICITED UNDER STEP TWO ONLY FROM THOSE CONCERNS WHOSE TECHNICAL PROPOSALS HAD BEEN EVALUATED AND FOUND TO BE ACCEPTABLE. ON AUGUST 5, 1966, THE DATE SCHEDULED FOR RECEIPT OF TECHNICAL PROPOSALS, SIX HAD BEEN RECEIVED. AN EVALUATION OF EACH WAS MADE TO DETERMINE COMPLIANCE WITH SPECIFICATION REQUIREMENTS AND ON AUGUST 12, 1966, THREE OF THE PROPOSALS, INCLUDING YOUR OWN, WERE DETERMINED TO BE UNACCEPTABLE. YOU WERE ADVISED OF THIS DETERMINATION BY LETTER OF AUGUST 22, 1966. BIDS WERE SOLICITED FROM THE THREE CONCERNS WHOSE TECHNICAL PROPOSALS WERE CONSIDERED ACCEPTABLE AND AWARD WAS MADE ON AUGUST 30, 1966, TO THE LOW BIDDER, ELECTRONIC ASSOCIATES, INC., IN THE AMOUNT OF $88,400.

THE CONTRACTING OFFICER'S LETTER OF AUGUST 22, 1966, SETS FORTH AS THE BASIS FOR THE DETERMINATION THAT YOUR TECHNICAL PROPOSAL DID NOT MEET THE REQUIREMENTS OF THE NAVAIRDEVCEN SPECIFICATION, THE FACT THAT PARAGRAPH 1.F. (2) OF THE "GENERAL DESCRIPTION" REQUIRES THAT UNITS A AND C BE EQUIPPED WITH AN OSCILLOSCOPE CAPABLE OF DISPLAYING FOUR TRACES SIMULTANEOUSLY FOR USE IN THE REPETITIVE OPERATION MODE, WHEREAS YOUR PROPOSAL CALLED FOR TWO TWO-TRACE OSCILLOSCOPES, WHICH WAS NOT CONSIDERED TO BE EQUIVALENT TO THE OSCILLOSCOPE REQUIREMENT. UPON RECEIPT OF THE CONTRACTING OFFICER'S LETTER OF AUGUST 22 YOU REQUESTED RECONSIDERATION OF THE MATTER AND A CONFERENCE WAS HELD AT THE NAVAL AIR DEVELOPMENT CENTER BETWEEN GOVERNMENT LEGAL, TECHNICAL AND PROCUREMENT PERSONNEL TO REVIEW THE BASIS FOR THE REJECTION OF YOUR TECHNICAL PROPOSAL. THE TECHNICAL PERSONNEL REAFFIRMED THEIR ORIGINAL DETERMINATION THAT YOUR PROPOSAL WAS DEFINITELY NOT ACCEPTABLE AND YOUR WERE INFORMED ORALLY OF THIS DECISION ON AUGUST 29, 1966.

YOU PROTEST THE ABOVE REJECTION ON THE GROUNDS THAT (1) YOUR PROPOSAL WAS ERRONEOUSLY DISQUALIFIED ON THE BASIS OF A MISINTERPRETATION OF ONE MINOR ITEM, EVEN THOUGH YOU OFFERED TO MEET AND IN MANY CASES BETTER RFP REQUIREMENTS; (2) STATEMENTS MADE BY GOVERNMENT REPRESENTATIVES INDICATED THAT YOUR PROPOSAL WAS REJECTED MORE BECAUSE OF YOUR SIZE AND THE FACT THAT YOU WERE NOT KNOWN TO THE EVALUATION COMMITTEE, THAN FOR ANY TECHNICAL DEFICIENCY; AND (3) BASED ON YOUR EXPERIENCE IN THE ANALOG COMPUTER FIELD AND POSSESSION OF LITERATURE DESCRIBING THE EQUIPMENT OF THE THREE MANUFACTURERS WHOSE TECHNICAL PROPOSALS WERE CONSIDERED TO BE ACCEPTABLE, IT IS HIGHLY DOUBTFUL THAT THEIR PROPOSALS WERE IN FULL ACCORDANCE WITH THE RFP.

THE REQUEST FOR TECHNICAL PROPOSALS INCLUDED THE FOLLOWING PARAGRAPH:

"OFFERORS ARE ADVISED TO SUBMIT PROPOSALS WHICH ARE FULLY AND CLEARLY ACCEPTABLE WITHOUT ADDITIONAL EXPLANATION OR INFORMATION, SINCE THE GOVERNMENT MAY MAKE A FINAL DETERMINATION AS TO WHETHER A PROPOSAL IS ACCEPTABLE OR UNACCEPTABLE SOLELY ON THE BASIS OF THE PROPOSAL AS SUBMITTED AND PROCEED WITH THE SECOND STEP WITHOUT REQUESTING FURTHER INFORMATION FROM ANY OFFEROR; HOWEVER, IF THE GOVERNMENT DEEMS IT NECESSARY TO OBTAIN SUFFICIENT ACCEPTABLE PROPOSALS TO ASSURE ADEQUATE PRICE COMPETITION IN THE SECOND STEP OR DEEMS IT OTHERWISE DESIRABLE IN ITS BEST INTEREST THE GOVERNMENT MAY, IN ITS SOLE DISCRETION, REQUEST ADDITIONAL INFORMATION FROM OFFERORS OF PROPOSALS WHICH THE GOVERNMENT CONSIDERS REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE BY ADDITIONAL INFORMATION CLARIFYING OR SUPPLEMENTING BUT NOT BASICALLY CHANGING ANY PROPOSAL AS SUBMITTED AND, FOR THIS PURPOSE, THE GOVERNMENT MAY DISCUSS SUCH PROPOSAL WITH THE OFFEROR.'

THIS PROVISION IS REQUIRED BY SECTION 2-503.1 (A) (VII) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). ASPR 2-503.1 0E0 FURTHER PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/E) TECHNICAL EVALUATION OF THE PROPOSALS SHALL BE BASED UPON THE CRITERIA CONTAINED IN THE REQUEST FOR TECHNICAL PROPOSALS AND SUCH EVALUATION SHALL NOT INCLUDE CONSIDERATION OF CAPACITY OR CREDIT AS DEFINED IN 1-705.4. THE PROPOSALS AS SUBMITTED, SHALL BE CATEGORIZED AS:

(I) ACCEPTABLE;

(II) REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE BY ADDITIONAL INFORMATION CLARIFYING OR SUPPLEMENTING, BUT NOT BASICALLY CHANGING THE PROPOSAL AS SUBMITTED; OR

(III) IN ALL OTHER CASES, UNACCEPTABLE.

"ANY PROPOSAL WHICH MODIFIES, OR FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OR SPECIFICATIONS OF, THE REQUEST FOR TECHNICAL PROPOSALS SHALL BE CONSIDERED NONRESPONSIVE AND CATEGORIZED AS UNACCEPTABLE. IF THE CONTRACTING OFFICER DETERMINES THAT THERE ARE SUFFICIENT PROPOSALS IN CATEGORY (I) ABOVE TO ASSURE ADEQUATE PRICE COMPETITION UNDER STEP TWO AND THAT FURTHER TIME, EFFORT AND DELAY TO MAKE ADDITIONAL PROPOSALS ACCEPTABLE AND THEREBY INCREASE COMPETITION WOULD NOT BE IN THE BEST INTEREST OF THE GOVERNMENT, HE MAY PROCEED DIRECTLY WITH STEP TWO. * *

PERTINENT PARTS OF THE GENERAL DESCRIPTION OF THE ANALOG COMPUTERS IN THE PROCUREMENT SPECIFICATION ARE AS FOLLOWS:

"F. PROVISION FOR READOUT: THE UNITS MUST BE EQUIPPED WITH THE FOLLOWING READOUT DISPLAYS AND/OR PROVISIONS.

(2) AN OSCILLOSCOPE CAPABLE OF DISPLAYING FOUR TRACES SIMULTANEOUSLY FOR USE IN THE REPETITIVE OPERATION MODE.

"G. REPETITIVE OPERATION (REP.OP.): THE COMPUTERS MUST BE CAPABLE OF REP.OP. FOUR CHANNELS OF THE REP.OP. MUST BE DISPLAYED ON THE FOUR TRACE OSCILLOSCOPE. * * *"

YOUR PROPOSAL OFFERS ON PAGE 5 TO FURNISH "A TEKTRONIX TYPE R4222 OSCILLOSCOPE (SEE ATTACHED TEKTRONIX DATA SHEET).' THIS OSCILLOSCOPE IS FURTHER DESCRIBED ON PAGE 12 OF YOUR PROPOSAL AS ,TEKTRONIX R422 OSCILLOSCOPE - DUAL CHANNEL WITH EXTERNAL AND INTERNAL TRIGGERING, INTERNAL TIMING, HORIZONTAL DC AMPLIFIER, DC TO 15 MHZ" THE ABOVE DATA SHEET DESCRIBES THE TYPE R422 AS A ,DUAL-TRACE" OSCILLOSCOPE AND STATES THAT "THE COMPARTMENT DOOR CAN BE REMOVED AND A SECOND OSCILLOSCOPE INSTALLED FOR APPLICATIONS REQUIRING TWO INSTRUMENTS.' YOUR PROPOSAL DOES INCLUDE THE STATEMENT: "ALL 480 SIMULATORS TO HAVE THE FEATURE OF REPETITIVE OPERATION WITH PROVISIONS FOR DISPLAYING FOUR CHANNELS ON REPETITIVE OPERATION DISPLAY OSCILLOSCOPE," BUT THE ADMINISTRATIVE REPORT POINTS OUT THAT NOWHERE IN YOUR PROPOSAL WAS IT STATED THAT SPECIAL PROVISIONS, MODIFICATIONS, CIRCUITRY, ETC., WOULD BE PROVIDED TO CONVERT THE TWO DUAL-TRACE OSCILLOSCOPES INTO ONE FOUR TRACE DISPLAY. MEMORANDUM OF AUGUST 12, 1966, FROM THE AERO MECHANICS DEPT., SETTING FORTH THE REASONS FOR THE REJECTION STATES:

"IT IS NECESSARY THAT FOUR IMAGES APPEAR ON ONE SCOPE SIMULTANEOUSLY FOR THE ENGINEERING APPLICATIONS PLANNED. TWO OSCILLOSCOPES CANNOT PERFORM THIS FUNCTION.'

AFTER CONSIDERING THE STATEMENTS MADE IN YOUR PROPOSAL AND THE DATA SHEET ATTACHED THERETO, IT WAS INTERPRETED AND CONCLUDED BY THE CONTRACTING OFFICER THAT YOU WERE OFFERING TWO TYPE R422 DUAL-TRACE OSCILLOSCOPES INSTALLED AND OPERATING SIDE BY SIDE IN ORDER TO MEET THE FOUR-TRACE OSCILLOSCOPE REQUIREMENT OF THE REQUEST FOR PROPOSALS, AND IT WAS CONSIDERED THAT ANY ATTEMPTED MODIFICATION OF THE TWO DUAL TRACE OSCILLOSCOPES INTO A SINGLE FOUR TRACE DISPLAY WOULD BE A BASIC CHANGE IN THE PROPOSAL AND WOULD REQUIRE A MAJOR REDESIGN EFFORT WHICH WOULD HAVE TO BE FULLY EXPLAINED IN A NEW TECHNICAL PROPOSAL TO THE CONTRACTING OFFICER.

AS TO YOUR FEELING THAT YOUR PROPOSAL WAS REJECTED MORE BECAUSE OF YOUR SIZE AND THE FACT THAT YOUR COMPANY WAS RELATIVELY NEW IN THE FIELD, THAN FOR A TECHNICAL DEFICIENCY, WE HAVE BEEN ASSURED BY THE CONTRACTING OFFICER THAT SUCH IS NOT THE CASE AND THAT YOUR PROPOSAL WAS REJECTED SOLELY FOR THE TECHNICAL REASONS STATED ABOVE.

WITH REFERENCE TO THE QUESTION RAISED BY YOU AS TO THE ACCEPTABILITY OF THE PROPOSALS SUBMITTED BY THE THREE CONCERNS FROM WHOM BIDS WERE REQUESTED UNDER STEP TWO, THE DEPARTMENT OF THE NAVY ADVISES AS FOLLOWS:

"A REVIEW OF THE PROCUREMENT FILE UNDER THE REFERENCED RFP INDICATES THAT THE PROPOSALS OF COMPUTER PRODUCTS, INC., ELECTRONIC ASSOCIATES, INC., AND SYSTRON DONNER, INC., WHICH WERE CONSIDERED ACCEPTABLE BY THE AGENCY ON STEP ONE OF THE TWO-STEP PROCUREMENT, CONFORMED TO AND/OR EXCEEDED THE REQUIREMENTS SET FORTH IN THE RFP IN ALL RESPECTS. THIS REVIEW ALSO FAILED TO INDICATE ANY INFORMATION IN ANY DESCRIPTIVE LITERATURE SUBMITTED BY ANY OF THE ABOVE THREE PROPOSERS WITH THEIR PROPOSALS WHICH FAILED TO COMPLY WITH OR WERE IN CONFLICT WITH THE RFP REQUIREMENTS.'

THE RESPONSIBILITY FOR DETERMINING AND SEEKING OUT THE NEEDS OF THE GOVERNMENT, AND FOR DECIDING WHETHER TECHNICAL PROPOSALS MEET THESE REQUIREMENTS, IS VESTED IN THE PROCURING AGENCIES, AND THIS OFFICE IS NOT JUSTIFIED IN QUESTIONING SUCH DETERMINATIONS IN THE ABSENCE OF EVIDENCE THAT THEY ARE CLEARLY ERRONEOUS. 40 COMP. GEN. 35; ID. 40. AFTER GIVING FULL CONSIDERATION TO THE REPORTED FACTS AND TO PERTINENT RFP AND ASPR PROVISIONS, WE ARE OF THE OPINION THAT THEY SUPPORT THE CONTRACTING OFFICER'S CONCLUSION THAT YOUR PROPOSAL CONTAINED A MATERIAL DEVIATION FROM SPECIFICATION REQUIREMENTS INSOFAR AS THE OSCILLOSCOPE REQUIREMENT WAS CONCERNED, AND THAT YOUR TECHNICAL PROPOSAL WAS PROPERLY REJECTED UNDER THE PROVISIONS OF THE RFP, AS QUOTED ABOVE. YOUR PROTEST MUST THEREFORE BE DENIED.