B-161676, AUG. 22, 1967

B-161676: Aug 22, 1967

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OFFEROR WHO HAD PROPOSAL FOR RESEARCH AND DEVELOPMENT OF MANUFACTURING PROCESS FOR AIRCRAFT TIRES REJECTED AS TECHNICALLY UNACCEPTABLE AND WHO OBJECTS TO LACK OF OPPORTUNITY TO DISCUSS AND NEGOTIATE DIFFERENCE HAD PROPOSAL PROPERLY REJECTED SINCE RECORD SHOWS THAT PROPOSAL WAS FULLY AND CAREFULLY CONSIDERED BY TECHNICAL PERSONNEL AND NO ABUSE OF ADMINISTRATIVE DISCRETION OR AUTHORITY WAS FOUND. THE TECHNICAL QUALITY OF A PROPOSAL IS MATTER FOR JUDGMENT OF SCIENTIFIC PERSONNEL AND MUST BE ACCEPTED IN ABSENCE OF SHOWING OF ARBITRARY OR CAPRICIOUS ACTION OR BAD FAITH. EXECUTIVE VICE PRESIDENT AND GENERAL MANAGER: REFERENCE IS MADE TO YOUR LETTER OF MAY 31. WHICH PROPOSAL WAS SUBMITTED PURSUANT TO REQUEST FOR PROPOSAL NO.

B-161676, AUG. 22, 1967

BIDS - NEGOTIATION - REJECTION JUSTIFICATION DECISION TO THOMPSON AIRCRAFT TIRE CORP. (TACO) PROTESTING REJECTION AS TECHNICALLY UNACCEPTABLE OF PROPOSAL FOR DEVELOPMENT OF NEW MANUFACTURING METHODS FOR AIRCRAFT TIRES UNDER REQUEST FROM SYSTEMS ENGINEERING GROUP, WRIGHT-PATTERSON A.F. BASE. OFFEROR WHO HAD PROPOSAL FOR RESEARCH AND DEVELOPMENT OF MANUFACTURING PROCESS FOR AIRCRAFT TIRES REJECTED AS TECHNICALLY UNACCEPTABLE AND WHO OBJECTS TO LACK OF OPPORTUNITY TO DISCUSS AND NEGOTIATE DIFFERENCE HAD PROPOSAL PROPERLY REJECTED SINCE RECORD SHOWS THAT PROPOSAL WAS FULLY AND CAREFULLY CONSIDERED BY TECHNICAL PERSONNEL AND NO ABUSE OF ADMINISTRATIVE DISCRETION OR AUTHORITY WAS FOUND. THE TECHNICAL QUALITY OF A PROPOSAL IS MATTER FOR JUDGMENT OF SCIENTIFIC PERSONNEL AND MUST BE ACCEPTED IN ABSENCE OF SHOWING OF ARBITRARY OR CAPRICIOUS ACTION OR BAD FAITH.

TO MR. EDWARD J. GEORGIA, EXECUTIVE VICE PRESIDENT AND GENERAL MANAGER:

REFERENCE IS MADE TO YOUR LETTER OF MAY 31, 1967, WITH ENCLOSURES, PROTESTING THE REJECTION (AS TECHNICALLY UNACCEPTABLE) OF YOUR PROPOSAL FOR THE DEVELOPMENT OF NEW MANUFACTURING METHODS, CONTROLS, EQUIPMENT AND PROCESSES FOR THE FABRICATION OF AIRCRAFT TIRES BY MEANS OF THE FILAMENT WOUND, CONTINUOUS CROSS-SECTION CONCEPT, WHICH PROPOSAL WAS SUBMITTED PURSUANT TO REQUEST FOR PROPOSAL NO. F33615-67-R 1393 ISSUED UNDER DATE OF SEPTEMBER 26, 1966, BY HEADQUARTERS, SYSTEMS ENGINEERING GROUP, WRIGHT- PATTERSON AIR FORCE BASE, OHIO.

THE DEPARTMENT OF THE AIR FORCE HAS FURNISHED THE FOLLOWING REPORT IN REPLY TO YOUR PROTEST, WHICH APPEARS TO BE FULLY RESPONSIVE THERETO:

"2. THE BASIC PURPOSE OF THE WORK CALLED FOR UNDER THIS RFP IS TO DEVELOP THE MANUFACTURING METHODS, PROCESSES, CONTROLS AND EQUIPMENT NECESSARY TO MANUFACTURE A NEW, IMPROVED AIRCRAFT TIRE HAVING HIGHER LOAD CAPACITIES WITH NO INCREASE IN WEIGHT TO ACCOMMODATE THE TRENDS IN AIRCRAFT DESIGN AND REQUIREMENTS TOWARD HIGHER SPEEDS AND HIGHER CARGO CAPACITIES. SIGNIFICANT REPORTS IN THIS RESEARCH AND DEVELOPMENT (R AND D) PROGRAM ARE DISTRIBUTED TO FIRMS IN THE TIRE INDUSTRY INCLUDING TATCO. THE MOST RECENT CONTRACT FOR THIS WORK WAS UNDERCONTRACT AF 33/615/5024 WHICH DEMONSTRATED THAT THE FILAMENT WOUND CONTINUOUS CROSS SECTION (FWCCS) TIRE CONCEPT IS FEASIBLE AND HAS CERTAIN ADVANTAGES OVER CONVENTIONAL TIRE CONCEPTS. SIGNIFICANT REPORTS BASED UPON INFORMATION RESULTING FROM THE PERFORMANCE OF THAT CONTRACT WERE FURNISHED TO TATCO.

"3. THE RFP REQUIRES THAT PROPOSALS BE SUBMITTED ON A COST-PLUS FIXED-FEE BASIS AND AUTHORIZES THE SUBMISSION OF ALTERNATE PROPOSALS. UNDER THE PORTION OF THE RFP ENTITLED -SEK BOOKLET-, THE FOLLOWING IS SET FORTH:

"-ITEM 14. NEGOTIATION:

A. BECAUSE OF THE NATURE OF THE WORK, THE MAJORITY OF RESEARCH AND DEVELOPMENT PROCUREMENTS FROM THIS DIRECTORATE WILL NOT BE FORMALLY ADVERTISED BUT WILL BE NEGOTIATED. THE CONTRACTING OFFICER WILL SELECT THE BEST OVERALL PROPOSAL, BASED ON THE TECHNICAL MERIT, COST, AND OTHER FACTORS. IN MOST INSTANCES TECHNICAL FACTORS ARE OF PRIMARY IMPORTANCE. THE GOVERNMENT RESERVES THE RIGHT TO NEGOTIATE WITH ANY CONTRACTOR AND TO REJECT AS THE GOVERNMENT'S INTEREST MAY APPEAR, ANY AND ALL QUOTATIONS AND PROPOSALS RECEIVED, OR TO WAIVE ANY MINOR INFORMALITY IN CONNECTION THEREWITH.

B. THE TERM "NEGOTIATION" AS USED HEREIN SHALL NOT BE INTERPRETED AS MEANING THAT OFFERORS WILL BE GIVEN THE OPPORTUNITY TO REVISE OR LOWER THEIR ORIGINAL QUOTATION OR OTHERWISE MODIFY THEIR ORIGINAL PROPOSAL. OFFERORS ARE CAUTIONED TO CAREFULLY REVIEW ALL TERMS AND CONDITIONS AND SPECIFICATIONS OF THIS REQUEST FOR PROPOSAL PRIOR TO SUBMISSION OF BIDS. THIS PROCUREMENT MAY BE AWARDED WITHOUT DISCUSSION OF PROPOSALS RECEIVED, THEREFORE, PROPOSALS SHOULD BE SUBMITTED ON THE MOST FAVORABLE TERMS FROM A PRICE AND TECHNICAL STANDPOINT WHICH THE OFFEROR CAN SUBMIT TO THE GOVERNMENT. THE CONTRACTING OFFICER MAY CONSIDER OFFEROR'S ORIGINAL PROPOSAL AS FINAL WITHOUT EXTENDING PRIVILEGE TO MODIFY OR REVISE QUOTATION OR CONDUCT FURTHER NEGOTIATIONS.-

"4. COMPLAINANT ALLEGES THAT IT IS INCONCEIVABLE THAT ITS PROPOSAL FAILED TO MEET THE BASIC PROGRAM OBJECTIVES. IT FURTHER ALLEGES THAT THIS CONCLUSION IS MADE WITHOUT SUPPORT OF FACT OR REASON. IT APPARENTLY ALLEGES THAT ITS FIRM IS PRIMA FACIE QUALIFIED TO PERFORM THE CONTRACT. IN THIS REGARD, THIS IS A NEGOTIATED R AND D CONTRACT AND THE CONTRACTING OFFICER IS REQUIRED TO TAKE INTO CONSIDERATION ALL FACTORS DEEMED ESSENTIAL TO THE PROCUREMENT TO ASSURE THAT THE GOVERNMENT OBTAIN THE MOST ADVANTAGEOUS CONTRACT, PRICE, QUALITY AND OTHER FACTORS CONSIDERED. THE PHRASE -OTHER FACTORS' INCLUDES TECHNICAL ACCEPTABILITY OF THE PROPOSALS. ASPR 4-106.4 (A) PROVIDES THAT R AND D CONTRACTS SHOULD BE AWARDED TO THOSE ORGANIZATIONS WHICH HAVE THE HIGHEST COMPETENCE IN THE SPECIFIC FIELD OF SCIENCE AND TECHNOLOGY INVOLVED. BEFORE THE CONTRACTING OFFICER MAY AWARD SUCH A CONTRACT, HE MUST OBTAIN THE RECOMMENDATION OF COGNIZANT TECHNICAL PERSONNEL CONCERNING WHICH OFFERORS THESE TECHNICAL PERSONNEL CONSIDER MOST COMPETENT TO PERFORM THE REQUIREMENTS OF THE INVITATION.

"5. COGNIZANT TECHNICAL PERSONNEL HAVE DETERMINED THAT THE TATCO PROPOSAL WAS NON-RESPONSIVE TO MAJOR TECHNICAL REQUIREMENTS OF THE RFP IN SEVERAL RESPECTS AND WAS THUS COMPLETELY UNACCEPTABLE. IN FACT, IN THE TECHNICAL EVALUATION TATCO RECEIVED ONLY 28 POINTS TO 58 FOR U.S. RUBBER AND 118 FOR AEROJET. MOREOVER, TATCO RECEIVED A SCORE OF ZERO ON FOUR OF THE NINE FACTORS CONSIDERED.

"6. THE TECHNICAL DEFICIENCIES IN TATCO'S PROPOSAL ARE FULLY EXPLORED IN THE TECHNICAL REPORTS IN TAB C-4. NO USEFUL PURPOSE WOULD BE SERVED BY RECOUNTING THEM IN DETAIL HERE. IN ESSENCE, TATCO'S PROPOSAL HAD TWO MAJOR DEFECTS. MOST IMPORTANT WAS THAT TATCO SIMPLY DID NOT PROPOSE TO GIVE THE AIR FORCE WHAT IT REQUESTED. THE OBJECTIVE OF THE PROPOSED CONTRACT, AS STATED IN THE -PURPOSE- SECTION OF THE RFP, IS TO DEVELOP MANUFACTURING TECHNIQUES FOR A FILAMENT-WOUND CONTINUOUS CROSS-SECTION TIRE. THOMPSON, HOWEVER, PROPOSED TO STUDY THREE SEPARATE TIRE CONCEPTS AND TO DEVELOP MANUFACTURING TECHNIQUES FOR ONE OF THESE THREE, INDICATING ON PAGE 34 OF ITS PROPOSAL THAT IT WOULD PROBABLY DEVELOP THESE TECHNIQUES FOR THE FRAZIER FILAMENT-WOUND CONCEPT. THE AIR FORCE, HOWEVER, DOES NOT DESIRE STUDIES OF DIFFERENT TIRE CONCEPTS. THESE STUDIES HAVE ALREADY BEEN PERFORMED AND THE AIR FORCE HAS DECIDED THAT IT WANTS A TIRE EMBODYING THE FILAMENT-WOUND CONTINUOUS CROSS-SECTION CONCEPT. THE FRAZIER FILAMENT-WOUND TIRE IS NOT A FILAMENT-WOUND CONTINUOUS CROSS- SECTION TIRE. IN OTHER WORDS, TATCO, IF AWARDED A CONTRACT, WOULD VERY PROBABLY DEVELOP MANUFACTURING TECHNIQUES FOR A TIRE WHICH THE AIR FORCE DOES NOT WANT AND DID NOT ASK FOR. THE SECOND MAJOR DIFFICULTY WITH TATCO'S PROPOSAL IS THAT IT DID NOT COMPLY WITH THE REQUIREMENT OF THE RFP THAT ITS TECHNICAL PROPOSAL BE DETAILED AND THAT IT THOROUGHLY DISCUSS ANTICIPATED PROBLEMS. TATCO'S DISCUSSION OF CERTAIN ASPECTS OF THE PROBLEM OF PRODUCING THE TYPE OF AIRCRAFT TIRE REQUESTED IS SO BRIEF AND SUPERFICIAL THAT AIR FORCE TECHNICAL PERSONNEL FELT THAT TATCO SHOWED A SERIOUS LACK OF APPRECIATION AND UNDERSTANDING OF THE DIFFICULTIES INVOLVED.

"7. THE COMPLAINANT ALLEGES THAT THE AWARD OF R AND D CONTRACTS SHOULD PROVIDE FOR CONSIDERATION OF COST FACTORS. THE RFP SOLICITED PROPOSALS ON A COST-PLUS-FIXED-FEE BASIS. COST AND FEE WERE EXCLUDED FROM THE TECHNICAL EVALUATION BY TERMS OF THE RFP. HOWEVER, SINCE TATCO'S PROPOSAL WAS TECHNICALLY UNACCEPTABLE FOR MAJOR DEFICIENCIES, COST AND FEE WAS NOT A CONTROLLING FACTOR IN DETERMINING THE ACCEPTABILITY OF ITS PROPOSAL.

"8. THE COMPLAINANT FURTHER ALLEGES THAT NO OPPORTUNITY WAS EXTENDED TO NEGOTIATE THE DIFFERENCES BETWEEN ITS PROPOSAL AND THE RFP. IN THIS REGARD, ASPR 3-805 (1) (A) REQUIRES THAT NEGOTIATION BE CONDUCTED ONLY WITH OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED, INCLUDING TECHNICAL QUALITY WHERE TECHNICAL PROPOSALS ARE REQUESTED. IT IS CLEAR FROM THE DISCUSSION ABOVE THAT TATCO'S PROPOSAL WAS TOTALLY UNACCEPTABLE AND THUS WAS NOT WITHIN THE COMPETITIVE RANGE. THE PROPOSAL FAILED TO MEET SEVERAL MAJOR REQUIREMENTS OF THE RFP. IT RECEIVED A RATING OF ZERO ON FOUR OF THE NINE FACTORS CONSIDERED IN THE TECHNICAL EVALUATION AND RECEIVED A TOTAL POINT SCORE OF LESS THAN ONE-FOURTH THAT OF AEROJET. IN SUM, VERY SUBSTANTIAL MODIFICATIONS WERE THUS NEEDED IN TATCO'S PROPOSAL TO MAKE IT TECHNICALLY RESPONSIVE TO THE RFP. ACCORDINGLY, WE BELIEVE THAT THE CONTRACTING OFFICER WAS CLEARLY JUSTIFIED IN FINDING THAT TATCO WAS NOT WITHIN THE COMPETITIVE RANGE AND IN REFUSING TO NEGOTIATE FURTHER WITH THE COMPANY - AS YOUR OFFICE HAS RECENTLY HELD IN A SIMILAR SITUATION (B-159540, JANUARY 11, 1967). B-158686, SEPTEMBER 2, 1966, CITED BY THE PROTESTOR, IS CLEARLY DISTINGUISHABLE SINCE IN THAT CASE THE PROPOSALS WERE VERY SIMILAR TECHNICALLY AND WERE SEPARATED BY ONLY A SMALL POINT DIFFERENTIAL. SEE ALSO B-160620, MARCH 13, 1967.

"9. THE COMPLAINANT ALSO ALLEGES THAT IT HAD NO OPPORTUNITY TO EXPLORE THE TECHNICAL DIFFERENCES BETWEEN ITS PROPOSAL AND THE RFP. IN THIS REGARD, ASPR 3-508.2 PROVIDES THAT WHEN AN OFFEROR IS INFORMED THAT HIS PROPOSAL HAS BEEN DEEMED UNACCEPTABLE, HE SHOULD ONLY BE PROVIDED WITH THE GENERAL REASONS FOR THE NON-ACCEPTABILITY OF HIS PROPOSAL AND TOLD THAT A REVISION OF HIS PROPOSAL WILL NOT BE CONSIDERED. MOREOVER, TATCO HAS BEEN ADVISED THAT DEBRIEFING IN THIS MATTER WOULD BE GIVEN SUBSEQUENT TO AWARD.

"10. IN VIEW OF THE ABOVE, WE FIND NO BASIS TO THE PROTEST AND RECOMMEND THAT IT BE DENIED.

"11. THIS IS A PROTEST PRIOR TO AWARD. SINCE THERE IS NO BASIS TO THE PROTEST AND A PROMPT AWARD IS ADVANTAGEOUS TO THE GOVERNMENT, WE ADVISED YOUR OFFICE PURSUANT TO ASPR 2-407.9 (B) (3) OF OUR NOTICE OF INTENT TO MAKE AN AWARD PRIOR TO YOUR FINAL DECISION ON THE PROTEST. ATTACHED ARE DOCUMENTS AND LETTERS APPLICABLE TO THE PROTEST.'

ESSENTIALLY, YOUR PROTEST IS OF A TYPE WHICH HAS BEEN THE SUBJECT OF MANY DECISIONS BY THIS OFFICE, IN THAT IT DISPUTES THE CONCLUSION OF THE ADMINISTRATIVE EVALUATING PERSONNEL THAT YOUR PROPOSAL IS TECHNICALLY UNACCEPTABLE, AND OBJECTS TO THE FACT THAT NO OPPORTUNITY WAS EXTENDED TO YOU TO DISCUSS AND NEGOTIATE THE TECHNICAL DIFFERENCES. THE TECHNICAL QUALITY OF A PROPOSAL, AND DECISIONS AS TO WHETHER AN UNACCEPTABLE PROPOSAL IS REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE BY DEFINITION AND CLARIFICATION OR CORRECTION OF MINOR DEFICIENCIES, ARE GENERALLY MATTERS REQUIRING THE JUDGMENT OF SCIENTIFIC OR ENGINEERING PERSONNEL KNOWLEDGEABLE IN THE PARTICULAR AREA INVOLVED. SINCE DETERMINATIONS AS TO THE NEEDS OF THE GOVERNMENT ARE THE RESPONSIBILITY, IN THE FIRST INSTANCE, OF THE ADMINISTRATIVE AGENCY CONCERNED, THE JUDGMENT OF SUCH AGENCY'S SPECIALISTS AND TECHNICIANS AS TO THE TECHNICAL ADEQUACY OF PROPOSALS SUBMITTED IN RESPONSE TO THE AGENCY'S STATEMENT OF ITS NEEDS MUST ORDINARILY BE ACCEPTED BY THIS OFFICE UNLESS IT IS CLEARLY SHOWN THAT THE AGENCY ACTION WAS ARBITRARY OR CAPRICIOUS OR MADE IN BAD FAITH. SEE 40 COMP. GEN. 35.

ACCORDINGLY, SINCE THE RECORD SHOWS THAT YOUR PROPOSAL WAS FULLY AND CAREFULLY CONSIDERED BY COGNIZANT TECHNICAL PERSONNEL OF THE AIR FORCE, AND INASMUCH AS WE FIND NO ABUSE OF ADMINISTRATIVE DISCRETION OR AUTHORITY, OR LACK OF REASONABLE GROUNDS FOR THE DETERMINATION THAT YOUR PROPOSAL WAS TECHNICALLY UNACCEPTABLE, YOUR PROTEST MUST BE DENIED.