B-161911, AUG. 10, 1967

B-161911: Aug 10, 1967

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CONTRACTOR WHO AFTER INITIAL PROPOSAL WAS DETERMINED UNACCEPTABLE. WAS GIVEN OPPORTUNITY TO AMEND PROPOSAL WHICH WAS LIKEWISE FOUND UNACCEPTABLE IN NUMEROUS RESPECTS MAY NOT HAVE CONTENTION THAT REASONABLE EFFORT WAS NOT MADE TO SECURE COMPETITION UPHELD. SINCE UNDER ASPR 2-503.1/E) CONTRACTOR COULD HAVE BEEN ELIMINATED AFTER INITIAL PROPOSAL WAS DETERMINED UNACCEPTABLE. INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 28. THE PROCUREMENT WAS INITIATED UNDER TWO-STEP FORMAL ADVERTISING PROCEDURES PURSUANT TO WHICH UNPRICED TECHNICAL PROPOSALS WERE FIRST SOLICITED AND EVALUATED. YOUR PROTEST IS MADE PRIMARILY ON THE GROUND THAT THE GOVERNMENT'S SPECIFICATIONS DID NOT PERMIT FULL AND FREE COMPETITION BECAUSE MINIMUM REGIDITY CRITERIA WERE NOT ESTABLISHED OR MADE KNOWN TO YOU DESPITE ATTEMPTS BY YOU TO OBTAIN CLARIFICATION OF THE REQUIREMENTS.

B-161911, AUG. 10, 1967

BIDS - TWO-STEP PROCUREMENTS - SPECIFICATIONS DECISION TO GILMORE INDUSTRIES, INC., PROTESTING RESTRICTIVE SPECIFICATIONS FOR DESIGN, MANUFACTURE AND INSTALLATION OF ELECTROHYDRAULIC AXIAL-LOAD FATIGUE TEST SYSTEM FOR TESTING IN PROPAGATION STUDIES BY NAVAL RESEARCH LABORATORY. CONTRACTOR WHO AFTER INITIAL PROPOSAL WAS DETERMINED UNACCEPTABLE, WAS GIVEN OPPORTUNITY TO AMEND PROPOSAL WHICH WAS LIKEWISE FOUND UNACCEPTABLE IN NUMEROUS RESPECTS MAY NOT HAVE CONTENTION THAT REASONABLE EFFORT WAS NOT MADE TO SECURE COMPETITION UPHELD, SINCE UNDER ASPR 2-503.1/E) CONTRACTOR COULD HAVE BEEN ELIMINATED AFTER INITIAL PROPOSAL WAS DETERMINED UNACCEPTABLE.

TO MR. L. A. WINSTON, VICE PRESIDENT, MARKETING, GILMORE INDUSTRIES, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 28, 1967, IN WHICH YOU PROTEST ANY AWARD OF A CONTRACT UNDER STEP TWO OF LETTER REQUEST FOR TECHNICAL PROPOSALS NO. N00173-67-B-0006, ISSUED BY THE NAVAL RESEARCH LABORATORY (NRL), WASHINGTON, D.C.

THE RECORD FURNISHED BY THE CONTRACTING AGENCY SHOWS THAT BY LETTER DATED OCTOBER 12, 1966, THE PROCUREMENT WAS INITIATED UNDER TWO-STEP FORMAL ADVERTISING PROCEDURES PURSUANT TO WHICH UNPRICED TECHNICAL PROPOSALS WERE FIRST SOLICITED AND EVALUATED. THE LETTER REQUEST ANTICIPATED A CONTRACT FOR THE DESIGN, MANUFACTURE, AND INSTALLATION OF A 500,000 POUND INTEGRATED CLOSED-LOOP ELECTROHYDRAULIC AXIAL-LOAD FATIGUE TEST SYSTEM FOR STATIC AND CYCLIC TESTING IN CRACK PROPAGATION STUDIES.

YOUR PROTEST IS MADE PRIMARILY ON THE GROUND THAT THE GOVERNMENT'S SPECIFICATIONS DID NOT PERMIT FULL AND FREE COMPETITION BECAUSE MINIMUM REGIDITY CRITERIA WERE NOT ESTABLISHED OR MADE KNOWN TO YOU DESPITE ATTEMPTS BY YOU TO OBTAIN CLARIFICATION OF THE REQUIREMENTS. YOU STATE THAT KNOWN QUANTITATIVE EVALUATION FACTORS SHOULD BE MADE AVAILABLE TO BIDDERS IN ADVANCE RATHER THAN BASING EVALUATIONS ON SUBJECTIVE DETERMINATIONS. IN THIS REGARD YOU CITE OUR DECISION IN 36 COMP. GEN. 380, WHERE WE STATED THAT AGENCIES ARE REQUIRED TO PROVIDE BIDDERS WITH ADVANCE NOTICE OF THE BASIS FOR EVALUATING PROPOSALS.

THE SPECIFICATIONS ACCOMPANYING NRL'S LETTER REQUEST FOR TECHNICAL PROPOSALS PROVIDE, IN PERTINENT PART, AS FOLLOWS:

"2.1 DIMENSION AND GENERAL REQUIREMENTS

"THE LOAD FRAME SHALL HAVE A DYNAMIC LOAD CAPACITY OF PLUS OVER MINUS 500,000 POUNDS. (TOTAL LOAD AMPLITUDE WITH ZERO MEAN LOAD IS 1,000,000 POUNDS.) THIS FRAME SHALL BE DESIGNED FOR MAXIMUM RIGIDITY WITH FOUR (4) COLUMNS. DAYLIGHT BETWEEN COLUMNS SHALL BE AT LEAST 30 INCHES X 48 HES.'

THE RECORD IN THIS CASE ESTABLISHES THAT BY TELEGRAM OF NOVEMBER 16, 1966, YOUR FIRM REQUESTED AN EXTENSION OF TWO WEEKS FOR SUBMITTING ITS PROPOSAL AND ALSO REQUESTED ANSWERS TO VARIOUS QUESTIONS. BY LETTER OF NOVEMBER 30, 1966, THE CONTRACTING OFFICER REPLIED THAT A THREE WEEK EXTENSION WAS GRANTED AND, EVEN THOUGH YOUR QUESTIONS HAD PREVIOUSLY BEEN DISCUSSED WITH A MR. BRUCE SUTTON, ANSWERS WERE PROVIDED. IN REPLY TO YOUR QUESTION RELATIVE TO THE ACCEPTABILITY OF A SYSTEM ENCOMPASSING TWO COLUMNS WITH AUGMENTING BUTTRESSES PROVIDED IT MET THE GOVERNMENT'S MINIMUM REQUIREMENTS FOR RIGIDITY, THE CONTRACTING OFFICER STATED THAT A FOUR COLUMN DESIGN WAS REQUIRED. NOTWITHSTANDING THIS INFORMATION IT IS REPORTED THAT ON DECEMBER 16, 1966, YOUR FIRM SUBMITTED A PROPOSAL INCORPORATING A TWO COLUMN DESIGN. IN A LETTER DATED MARCH 2, 1967, NRL INFORMED YOU OF ITS REASONS FOR DISAPPROVING THE PROPOSAL AND, IN PARTICULAR, IT ALERTED YOU THAT "THE PROPOSED DESIGN APPEARS TO LACK RIGIDITY IN AREAS SUCH AS THE TWO 8 INCH DIAMETER LOAD COLUMNS.' IN THIS LETTER THE CONTRACTING OFFICER ALSO OFFERED YOU AN OPPORTUNITY TO AMEND THE ORIGINAL PROPOSAL TO MEET THE REQUIREMENTS OF THE SOLICITATION. YOUR AMENDED PROPOSAL WAS RECEIVED BY NRL ON MARCH 17, 1967, AND THE NAVY REPORTS THAT IT WAS NOT ACCEPTABLE FOR THE FOLLOWING REASONS:

"ALTHOUGH THE CONTRACTOR HAS REVISED HIS BASIC DESIGN TO PROVIDE ACCESS CAPABILITIES FROM ALL FOUR SIDES WITH SUFFICIENT DAYLIGHT OPENINGS, THE FOUR 6-IN. COLUMN DESIGN LACKS RIGIDITY FOR THE PURPOSE FOR WHICH IT WAS INTENDED, I.E., FATIGUE TESTING WITH THE POSSIBILITY OF FAST FRACTURE OCCURRING AT MAXIMUM LOAD. THE RIGIDITY ITEM WAS QUESTIONED IN THEIR ORIGINAL PROPOSAL OF 16 DECEMBER 1966 IN WHICH THEY PROPOSED TWO 8-IN. COLUMNS FOR THE LOAD FRAME DESIGN. THEIR LETTER OF 16 DECEMBER 1966 ACCOMPANYING THE TECHNICAL PROPOSAL POINTS OUT THE FACT THAT THE HORIZONTAL SPRING CONSTANT FOR THEIR INITIAL DESIGN OF A TWO 8-IN. COLUMN MACHINE WAS EIGHT MILLION POUNDS PER INCH. IT WAS ALSO POINTED OUT IN THIS 16 DECEMBER 1966 LETTER THAT THE HORIZONTAL SPRING CONSTANT FOR A MACHINE WITH A FOUR 6-IN. COLUMN DESIGN WAS LESS THAN 300,000 PER POUNDS PER INCH, OR IN OTHER WORDS THE FOUR 6-IN. COLUMN DESIGN WAS INFERIOR WITH RESPECT TO RIGIDITY. HOWEVER, THE REVISED PROPOSAL OF 17 MARCH 1967 PROPOSES THIS FOUR 6-IN. COLUMN DESIGN. SINCE WE CONSIDERED THE INITIAL TWO 8-IN. COLUMN DESIGN TO HAVE INSUFFICIENT RIGIDITY, WE FULLY AGREE WITH THEIR ORIGINAL ANALYSIS THAT A FOUR 6-IN. COLUMN DESIGN IS INADEQUATE FOR THE PURPOSE INTENDED, FATIGUE TESTING UP TO 500,000 POUNDS OF LOAD. GILMORE HAS ESSENTIALLY REJECTED THEIR OWN DESIGN IN THE REVISED PROPOSAL.'

IN ADDITION TO THE QUESTION OF "FRAME RIGIDITY" IT IS REPORTED THAT YOUR PROPOSAL WAS UNACCEPTABLE IN SIX OTHER AREAS.

IN RESPONDING TO THE CONTENTIONS IN YOUR ABOVE REFERENCED TELEGRAM OF JUNE 28, NRL HAS REPORTED TO THIS OFFICE THAT:

"A. FULL AND FREE COMPETITION WAS ENCOURAGED AS EVIDENCED BY PERMITTING GILMORE INDUSTRIES TO SUBMIT AN AMENDED TECHNICAL PROPOSAL ALTHOUGH THEY WERE CONSIDERED TECHNICALLY UNACCEPTABLE AFTER THEIR INITIAL PROPOSAL WAS EVALUATED.

"B. THE CRITERIA FOR EVALUATION WAS CLEARLY SET FORTH IN IFB N00173-67-B- 0006 AND EVALUATIONS WERE MADE IN ACCORDANCE THEREWITH. OF THE FIVE COMPANIES RESPONDING TO THE REQUEST IT SHOULD BE NOTED THAT GILMORE INDUSTRIES WAS THE ONLY BIDDER REQUESTING MORE DETAILED SPECIFIC INFORMATION REGARDING RIGIDITY. IN ADDITION, THE AREA OF RIGIDITY IN GILMORE INDUSTRIES' PROPOSAL WAS ONLY ONE OF SEVEN AREAS JUDGED UNACCEPTABLE BY THE NRL SCIENTIFIC OFFICER.

"C. QUANTITATIVE DESCRIPTIONS SUCH AS FRAME THICKNESS NECESSARY TO SUPPORT A 500,000 POUND LOAD IS A FUNCTIONAL DIMENSION OF ANY SPECIFIC DESIGN; THEREFORE, RIGIDITY WAS NOT SET FORTH IN TERMS OTHER THAN MAXIMUM.

"4. BASED ON THE FOREGOING, IT IS THE OPINION OF THE CONTRACTING OFFICER THAT AFTER THOROUGH REVIEW OF THE PROCUREMENT IN QUESTION, THE ALLEGATIONS RAISED BY GILMORE INDUSTRIES ARE NOT SUBSTANTIATED BY THE FACTS.'

CONCERNING YOUR OBJECTION TO NRL'S FAILURE TO PROVIDE OFFERORS WITH A MINIMUM RIGIDITY REQUIREMENT WE DO NOT CONSIDER THE ABSENCE OF AN EXACT NUMERICAL STANDARD IN THAT RESPECT TO BE A SUFFICIENT LEGAL BASIS FOR OBJECTING TO THE PROPOSED AWARD, IN VIEW OF THE NOTICE GIVEN YOU THAT YOUR FIRST PROPOSAL, WHICH DID NOT CONFORM TO THE EXPRESS PROVISIONS OF THE SPECIFICATIONS AS TO NUMBER OF COLUMNS AND SIZE OF OPENINGS, WAS CONSIDERED DEFICIENT IN RIGIDITY, DESPITE WHICH YOU OFFERED IN YOUR AMENDED PROPOSAL A LESS RIGID DESIGN. WE SEE NO VALID BASIS FOR IMPOSING AN OBLIGATION ON A PROCURING AGENCY TO ADVISE OFFERORS WITH RESPECT TO ANY OR ALL DESIGN APPROACHES WHICH MAY RESULT IN A TECHNICALLY UNACCEPTABLE PROPOSAL. SEE B-159540, JANUARY 11, 1967, 46 COMP. GEN. ----. THE PURPOSE OF THE TWO-STEP FORMAL ADVERTISING PROCEDURES IS TO ENLIST THE INGENUITY AND SKILLS OF INDUSTRY TO DESIGN OR FORMULATE ARTICLES CAPABLE OF FILLING NEEDS WHICH THE GOVERNMENT CAN DEFINE IN TERMS OF DESIRED PERFORMANCE BUT NOT BY SPECIFICATIONS SO PRECISE AS TO ADMIT OF THE USE OF FORMAL ADVERTISING. SEE ARMED SERVICES PROCUREMENT REGULATION (ASPR) SEC. 2 501.

WE FIND NOTHING IN THE RECORD TO SUPPORT YOUR CONTENTION THAT A REASONABLE EFFORT WAS NOT MADE TO SECURE COMPETITION IN THIS PROCUREMENT. IN THIS REGARD WE MAKE PARTICULAR NOTE THAT YOU WERE PERMITTED TO MODIFY YOUR INITIAL UNACCEPTABLE PROPOSAL WHEN THE CONTRACTING OFFICER COULD HAVE ELIMINATED YOU FROM FURTHER CONTENTION ON THE BASIS OF ASPR SEC. 2- 503.1/E).

FOR THE REASONS STATED, WE FIND NO LEGAL BASIS ON WHICH TO QUESTION THE ACTION OF THE PROCURING AGENCY IN THIS MATTER, AND YOUR PROTEST MUST THEREFORE BE DENIED.