B-163166, APR. 5, 1968

B-163166: Apr 5, 1968

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DESCRIPTION OF WORK "1.1 THE WORK WILL CONSIST OF FURNISHING THE DETAILED DESIGN. INITIAL TESTING OF A HIGH REYNOLDS NUMBER RESEARCH FACILITY AS DESCRIBED IN THIS STATEMENT OF WORK IN ACCORDANCE WITH THE SPECIFICATIONS AND DRAWINGS LISTED HEREIN AND ACCOMPANYING THIS STATEMENT OF WORK. * * *. "2.12 DATA TO BE FURNISHED WITH BID: IT IS THE INTENT OF THESE SPECIFICATIONS THAT THE BIDDER'S PROPOSAL COVER DESIGN. THE CONTRACTOR SHALL HAVE IMMEDIATE USE. OR HAVE PRIMARY CONTROL OVER PERSONNEL WHO IN THEMSELVES WILL HAVE THE CAPABILITIES TO ACCOMPLISH THE AERODYNAMIC DESIGN PORTIONS OF THE WORK. THE CONTRACTOR SHALL NOT SUBCONTRACT THE PRELIMINARY OR DETAILED DESIGN OF THE WORK UNLESS SPECIFIC AUTHORIZATION IS SO APPROVED BY THE CONTRACTING OFFICER.

B-163166, APR. 5, 1968

TO S AND Q CONSTRUCTION COMPANY:

WE REFER TO YOUR PROTEST BY LETTER DATED DECEMBER 22, 1967, ADDRESSED TO THE SECRETARY OF THE AIR FORCE, AS SUPPLEMENTED BY SUBSEQUENT CORRESPONDENCE ADDRESSED TO THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, AGAINST THE AWARD BY THE DEPARTMENT OF THE AIR FORCE OF A NEGOTIATED CONTRACT TO FLUIDYNE ENGINEERING CORPORATION (FLUIDYNE) UNDER REQUEST FOR PROPOSALS (RFP) NO. F33601-68-R-0251, ISSUED SEPTEMBER 15, 1967, BY THE BASE PROCUREMENT BRANCH, WRIGHT PATTERSON AIR FORCE BASE, OHIO.

THE RFP, WHICH CITED THE NEGOTIATION AUTHORITY CONTAINED IN 10 U.S.C. 2304 (A) (11), RELATING TO RESEARCH AND DEVELOPMENT, SOLICITED PROPOSALS FOR SUBMISSION BY OCTOBER 16, 1967, TO FURNISH MATERIALS AND NONPERSONAL SERVICES TO PROVIDE DETAILED DESIGN, FABRICATION, INSTALLATION AND INITIAL TESTING OF A MACH NUMBER 3 HIGH REYNOLDS NUMBER RESEARCH FACILITY (WIND TUNNEL) FOR AEROSPACE RESEARCH LABORATORIES (ARL).

A STATEMENT OF WORK, SET FORTH ON PAGES 14 THROUGH 47 OF THE RFP, PROVIDES IN PERTINENT PART, AS FOLLOWS:

"1. DESCRIPTION OF WORK

"1.1 THE WORK WILL CONSIST OF FURNISHING THE DETAILED DESIGN, FABRICATION, AND INSTALLATION, AND INITIAL TESTING OF A HIGH REYNOLDS NUMBER RESEARCH FACILITY AS DESCRIBED IN THIS STATEMENT OF WORK IN ACCORDANCE WITH THE SPECIFICATIONS AND DRAWINGS LISTED HEREIN AND ACCOMPANYING THIS STATEMENT OF WORK. * * *.

"2.12 DATA TO BE FURNISHED WITH BID: IT IS THE INTENT OF THESE SPECIFICATIONS THAT THE BIDDER'S PROPOSAL COVER DESIGN, FABRICATION, INSTALLATION AND INITIAL TESTING OF A HIGH REYNOLD'S NUMBER FACILITY CONFORMING TO THE OVERALL REQUIREMENTS OF THESE SPECIFICATIONS AND ATTACHED DRAWINGS. IN ORDER THAT THE CONTRACTING OFFICER MAY PROPERLY EVALUATE BIDS, EACH BIDDER SHALL SUBMIT WITH HIS BID A DETAILED COST BREAKDOWN IDENTIFYING ALL LABOR, MATERIALS AND SPECIFICATIONS FOR MAJOR EQUIPMENT ITEMS HE PLANS TO FURNISH TO MEET THE INTENT OF THE CONTRACT. THE BIDDER SHALL IDENTIFY AS A SEPARATE ITEM, EACH MAJOR SUBASSEMBLY AS DEFINED HEREIN, AND SHALL SUBMIT COST BREAKDOWN AND SPECIFICATIONS FOR EACH SUBASSEMBLY OF THE FACILITY. * * *.

"3.1 QUALIFICATIONS: THE WORK DESCRIBED HEREIN REQUIRES THE SERVICES, TALENTS, AND EXPERIENCE OF PROFESSIONAL PERSONNEL FAMILIAR WITH THE DESIGN OF SUPERSONIC BLOW DOWN WIND TUNNELS. THE CONTRACTOR SHALL HAVE IMMEDIATE USE, ACCESS TO, OR HAVE PRIMARY CONTROL OVER PERSONNEL WHO IN THEMSELVES WILL HAVE THE CAPABILITIES TO ACCOMPLISH THE AERODYNAMIC DESIGN PORTIONS OF THE WORK. THE CONTRACTOR SHALL NOT SUBCONTRACT THE PRELIMINARY OR DETAILED DESIGN OF THE WORK UNLESS SPECIFIC AUTHORIZATION IS SO APPROVED BY THE CONTRACTING OFFICER. THE CONTRACTOR SHALL DEMONSTRATE TO THE CONTRACTING OFFICER PREVIOUS EXPERIENCE IN DESIGN, CONSTRUCTION AND OPERATION OF COMPARABLE WIND TUNNELS.'

PARAGRAPH 3, SOLICITATION INSTRUCTIONS AND CONDITIONS, STANDARD FORM 33A, INFORMED OFFERORS THAT ANY EXPLANATION DESIRED REGARDING THE MEANING OR INTERPRETATION OF THE SOLICITATION, DRAWINGS, SPECIFICATIONS, ETC., SHOULD BE REQUESTED IN WRITING WITH ALLOWANCE OF SUFFICIENT TIME FOR A REPLY TO REACH OFFERORS BEFORE THE SUBMISSION OF THEIR OFFERS. SIMILAR LANGUAGE WAS INCLUDED IN PARAGRAPH 1, INSTRUCTIONS TO BIDDERS (CONSTRUCTION CONTRACT), STANDARD FORM 22. PARAGRAPH 2, STANDARD FORM 33A, INCLUDED LANGUAGE PROVIDING THAT EACH OFFEROR SHOULD FURNISH THE INFORMATION REQUIRED BY THE SOLICITATION AND CAUTIONED THAT THE FAILURE OF AN OFFEROR TO EXAMINE THE DRAWINGS, SPECIFICATIONS, SCHEDULE AND ALL INSTRUCTIONS WOULD BE AT THE OFFEROR'S RISK. IN ADDITION, PAGE 4 OF THE SOLICITATION CARRIED THE FOLLOWING PERTINENT LANGUAGE: "II. A PRE-PROPOSAL CONFERENCE WILL BE HELD IN THE BASE PROCUREMENT OFFICE, BUILDING 120, AREA -C-, WRIGHT PATTERSON AFB, OHIO 45433 AT 2:00 P.M., E.D.S.T., 2 OCTOBER 1967. OFFERORS SHOULD SUBMIT ANY QUESTIONS IN WRITING PRIOR TO THE CONFERENCE DATE TO THE ADDRESS HEREIN; ATTENTION: MR. S. MOLLETT.'

THE PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY, AND 34 FIRMS WERE FURNISHED COPIES OF THE RFP. THE PRE-PROPOSAL CONFERENCE, WHICH WAS HELD ON OCTOBER 2, AS SCHEDULED, WAS ATTENDED BY 11 FIRMS. YOU WERE NOT REPRESENTED. AS A RESULT OF THE QUESTIONS WHICH WERE RAISED AT THE CONFERENCE, THE RFP SPECIFICATIONS WERE AMENDED AND THE CLOSING DATE FOR SUBMISSION OF PROPOSALS WAS EXTENDED TO OCTOBER 31, 1967.

OF THE SEVEN PROPOSALS WHICH WERE RECEIVED IN RESPONSE TO THE RFP, YOUR PROPOSAL IN THE AMOUNT OF $185,793 WAS LOWEST AS TO PRICE. HOWEVER, THE TEAM WHICH MADE THE TECHNICAL EVALUATION OF THE PROPOSALS DURING THE PERIOD NOVEMBER 2 TO 14, ON THE BASIS OF A PREDETERMINED POINT SYSTEM, HAD NO KNOWLEDGE OF THE PRICES OFFERED IN THE PROPOSALS.

YOUR PROPOSAL, AS ORIGINALLY SUBMITTED, SCORED 21 OF A POSSIBLE 100 POINTS. THE REMAINING SIX PROPOSALS, ALL OF WHICH WERE RESPONSIVE TO THE RFP, HAD SCORES RANGING FROM 53 TO 90 POINTS. THE EVALUATING TEAM FOUND BOTH YOUR PROPOSAL AND THE 53-POINT PROPOSAL TO BE UNACCEPTABLE.

THE TECHNICAL EVALUATION REPORT ON YOUR PROPOSAL STATED THAT YOU HAD NO EXPERIENCE IN WIND TUNNELS AND THAT YOUR PROPOSAL DID NOT COMPLY WITH THE REQUIREMENTS AND DID NOT GIVE ANY INFORMATION ABOUT THE TECHNICAL APPROACH WHICH YOU WOULD TAKE IN EXECUTING THE CONTRACT WORK. SPECIFICALLY, THE REPORT POINTED OUT THAT YOU HAD FAILED TO GIVE ANY DETAILS TO PERMIT EVALUATION OF THE SCIENTIFIC/ENGINEERING APPROACH; THAT NO EXAMPLES HAD BEEN GIVEN BY YOU OF EXPERIENCE WITH FLOW TEST FACILITIES SUCH AS SUPERSONIC WIND TUNNELS; AND THAT THE EXPERIENCE OF THE ONE MEMBER OF YOUR ORGANIZATION WHO WAS STATED TO HAVE HAD EXPERIENCE IN WIND TUNNEL DESIGN WAS LIMITED TO TWO COMPONENTS FOR A WIND TUNNEL AT NASA-AMES (NATIONAL AERONAUTICS AND SPACE ADMINISTRATION).

NOTWITHSTANDING THE ADVERSE TECHNICAL EVALUATION REPORT ON YOUR PROPOSAL, THE CONTRACTING OFFICER, IN THE INTEREST OF QUALIFYING YOU AS A PROSPECTIVE CONTRACTOR, REQUESTED THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR), BURLINGAME, CALIFORNIA, TO REVIEW YOUR CAPABILITY TO PERFORM THE CONTRACT. AT THE SAME TIME, THE CONTRACTING OFFICER DISPATCHED A TELEGRAM TO YOU ON NOVEMBER 16, 1967, WHICH READS AS FOLLOWS: "REFERENCE OUR REQUEST FOR PROPOSAL F33601-68 R-0251 MACH 3 HIGH REYNOLDS FACILITY. THE FOLLOWING POINTS REQUIRE CLARIFICATION AND/OR OTHER ACTION TO ENABLE COMPLETION OF EVALUATION OF YOUR PROPOSAL: 1. FURNISH VERIFICATION OF UNIT PRICES SUBMITTED. THERE IS REASON TO SUSPECT A MISTAKE IN THE OFFERED PRICE AS IT IS SUBSTANTIALLY LOWER THAN THE NEXT LOW OFFEROR. IT IS NOT POSSIBLE TO IDENTIFY THE SPECIFIC AREAS OF THE SUSPECTED MISTAKE AS YOU FAILED TO FURNISH COST-BREAKDOWNS AS REQUIRED IN THE RFP, PAGES 18 AND 19, PARA 2.12 AND 3.1. UPON RECEIPT, YOUR COST- BREAKDOWN WILL BE COMPARED WITH THOSE OF THE NEXT LOW OFFEROR AND ANY APPARENT MISTAKE IN PRICING WILL BE IDENTIFIED TO YOU FOR FURTHER VERIFICATION. 2. FURNISH ALL ADDITIONAL INFORMATION AND DATA REGARDING SPECIFIC EXPERIENCE IN PRODUCING DESIGNS FOR SUPERSONIC WIND TUNNELS OR FLOW-TEST FACILITIES. 3. FURNISH RESUMES OF ALL OTHER PERSONNEL WITH PAST EXPERIENCE IN WIND TUNNEL DESIGN, FABRICATION AND INSTALLATION. IDENTIFY ANY SPECIAL TECHNICAL FACILITIES YOU POSSESS WHICH ARE CAPABLE OF PRECISION MACHINING WIND TUNNEL NOZZLES AND OTHER RELATED COMPONENTS. THE RFP REQUIRES OFFERORS TO SUBMIT SPECIFICATIONS AND COST-BREAKDOWNS FOR EACH MAJOR EQUIPMENT AND SUB-ASSEMBLY; (SEE RFP PAGES 18 AND 19, PARA. 2.12 AND 3.1) THEREFORE, EVALUATION CANNOT BE ACCOMPLISHED. OFFERORS MUST SUBMIT DATA OR DRAWINGS IN SUFFICIENT DETAIL TO PERMIT EVALUATION OF SPECIAL TECHNICAL FACTORS, UNDERSTANDING OF THE PROBLEM, SOUNDNESS OF APPROACH AND EASE OF MAINTENANCE OF THE ITEM OFFERED. YOUR PROPOSAL DID NOT INCLUDE THIS INFORMATION. REQUEST THE ABOVE INFORMATION BE FURNISHED ON OR BEFORE 3:30 P.M. EST. 21 NOV 1967, TO: 2750TH ABWG (EWPB)

ATTN: MR. J. R. RADER

WRIGHT-PATTERSON AFB, OHIO 45433 FAILURE TO SUBMIT ALL DATA REQUESTED BY THE TIME SPECIFIED HEREIN MAY BE CAUSE FOR REJECTION OF YOUR OFFER WITHOUT FURTHER CONSIDERATION. SIGNED: S. MOLLETT, CONTRACT SPECIALIST, BASE PROCUREMENT BRANCH, PROCUREMENT DIV., 2750TH ABW.'

IN ADDITION TO THE FOREGOING, THE EVALUATION TEAM WAS OF THE OPINION THAT THE NECESSARY TECHNICAL DATA TO EVALUATE YOUR PROPOSAL COULD BE FOUND AT YOUR PLANT. ACCORDINGLY, THE EVALUATION TEAM CONFERRED WITH THE PROCURING ACTIVITY WITH THE RESULT THAT YOU WERE ADVISED ON NOVEMBER 17 THAT ARL REPRESENTATIVES WOULD VISIT YOUR PLANT ON NOVEMBER 20.

ON NOVEMBER 20, THE ARL REPRESENTATIVES, ACCOMPANIED BY REPRESENTATIVES OF DCASR, VISITED YOUR PLANT. THE ARL REPORT ON THE VISIT INDICATES THAT THE CONTRACT WORK WAS DISCUSSED WITH YOUR PERSONNEL AND INCLUDES THE FOLLOWING PERTINENT STATEMENTS:

"* * * NO S-AND-Q DRAWINGS, OTHER THAN VERY ROUGH HAND SKETCHES, WERE AVAILABLE DURING THESE DISCUSSIONS. NO DETAIL TECHNICAL CONSIDERATIONS INTO ANY OF THE SUB-ASSEMBLIES WERE EVIDENT. WHERE HAND SKETCHES WERE MADE THE PURPOSE WAS ONLY TO ARRIVE AT COST ESTIMATES. S-AND-Q DISPLAYED A WORKING KNOWLEDGE IN THE AREA BUT LACKED TECHNICAL INFORMATION ON CURRENT STATE-OF-THE-ART IN SEVERAL AREAS AS WILL BE SUMMARIZED:

A. NO TECHNICAL CONSIDERATION WAS GIVEN TO THE DETAILS OF THE SETTLING CHAMBER. IT WAS STATED BY S-AND-Q THAT THE POROSITY OF THE BAFFLES WOULD HAVE TO BE DETERMINED ON A TRIAL AND ERROR BASIS.

B. THE TRANSITION SECTION FROM THE SETTLING CHAMBER TO THE NOZZLE HAD NOT BEEN GIVEN THOUGHT.

C. S-AND-Q VISUALIZED THE HIGH PRESSURE VALVE SYSTEM, THE NOZZLE DIMENSIONS AND THE MOVABLE MODEL SUPPORT SYSTEM AS THE ONLY AREAS WHERE THEY EXPECTED PROBLEMS.

D. S-AND-Q ESSENTIALLY CONSIDERED THE FACILITY DESIGNED IN THE WORK STATEMENT FURNISHED WITH THE RFP.

"I WAS ASKED TO LOOK AT THE DRAWINGS OF WORK THAT S-AND-Q HAD PERFORMED FOR NASA-AMES. IN ALL CASES THE DESIGN HAD BEEN FURNISHED BY NASA OR ANOTHER COMPANY CONTRACTING WITH NASA. DUE TO LIMITED RESOURCES S-AND-Q FELT THEY COULD NOT SUBMIT A DESIGN AND TECHNICAL APPROACH IN RESPONSE TO THE RFP.'

THE DCASR REPORT, DATED NOVEMBER 22, STATED THAT YOUR PROPOSAL WAS NOT RESPONSIVE TO THE RFP BY REASON OF YOUR FAILURE TO PREPARE DATA OR DRAWINGS IN SUFFICIENT DETAIL TO PERMIT EVALUATION OF SPECIAL TECHNICAL FACTORS AND THAT IT WOULD BE IMPOSSIBLE FOR YOU TO SUBMIT THE NECESSARY INFORMATION BY NOVEMBER 21, AS SPECIFIED IN THE CONTRACTING OFFICER'S TELEGRAM OF NOVEMBER 16 TO YOU. IN THE LIGHT OF SUCH FACTORS, THE DCASR REPORT STATED THAT NO AWARD WAS RECOMMENDED.

NOVEMBER 20 WAS ALSO THE DATE ON WHICH YOU ADDRESSED A LETTER TO THE CONTRACTING OFFICER IN RESPONSE TO HIS TELEGRAM OF NOVEMBER 16. IN THE LETTER, YOU ADVISED THE CONTRACTING OFFICER THAT THERE WAS NO MISTAKE IN YOUR PROPOSAL PRICE, AND YOU FURNISHED A COST BREAKDOWN FOR THE MAJOR COMPONENTS OF THE CONTRACT WORK TOGETHER WITH CERTAIN INFORMATION ABOUT YOUR PERSONNEL AND THEIR EXPERIENCE WITH WIND TUNNELS AND FLOW TEST FACILITIES, THE NAMES OF VARIOUS MACHINE SHOPS IN THE SAN FRANCISCO BAY AND LOS ANGELES AREAS WHICH WERE AVAILABLE FOR THE PERFORMANCE OF PRECISION MACHINING, AND THE IDENTITY OF THE MATERIALS WHICH YOU EXPECTED TO USE. THE LETTER INCLUDES THE FOLLOWING PERTINENT STATEMENT:

"AT THE TIME OF OUR PROPOSAL SUBMITTAL, WE CONSIDERED THE REQUEST TO SUBMIT SPECIFICATIONS, COST BREAKDOWNS, AND DATA OR DRAWINGS IN SUFFICIENT DETAIL. WE RESPONDED BY COMPLETING FORM DD633 FOR A COST BREAKDOWN. WERE NOT SURE WHAT WAS MEANT BY SPECIFICATIONS, DATA, AND DRAWINGS. THE AIR FORCE MEANT THAT THE PROJECT WAS TO BE COMPLETELY DESIGNED AND SPECIFIED DURING THE PROPOSAL STAGE, THEN WE DO NOT HAVE THE RESOURCES AVAILABLE TO DO THIS FOR A PROPOSAL AND IT WOULD ALSO SEEM THAT THIS IS THE WORK FOR WHICH THE AIR FORCE IS PROPOSING TO CONTRACT.'

ON NOVEMBER 21, THE TECHNICAL EVALUATING TEAM ISSUED AN ADDENDUM TO ITS ORIGINAL EVALUATION REPORT ON YOUR PROPOSAL, AFTER REVIEWING YOUR LETTER OF NOVEMBER 20. THE ADDENDUM READS AS FOLLOWS: "1. A MEETING WAS HELD BY THE EVALUATION TEAM IN WHICH THE ADDITIONAL INFORMATION PROVIDED BY THE S- AND-Q COMPANY, AS REQUESTED IN TELEGRAM SENT BY EWPB ON 16 NOVEMBER 1967, HAS BEEN EVALUATED. IN THE FOLLOWING, THE DECISIONS REACHED BY THE TEAM ARE STATED:

A. THE BIDDER HAS VERIFIED HIS ORIGINAL QUOTATION OF THE TOTAL PRICE AND GIVEN A COST BREAKDOWN OF DIFFERENT PHASES AND COMPONENTS. IT APPEARS, BASED ON THE STATED AMOUNTS, THAT THE BIDDER DID CONSIDER THAT THE DESIGN DRAWINGS ARE TO BE FURNISHED BY THE GOVERNMENT, WHICH IS NOT THE INTENT OF THIS PROCUREMENT AS PER STATEMENT OF WORK; OR HE DOES NOT UNDERSTAND THE EXTENT OF THE REQUESTED WORK; I.E., HE DOES NOT UNDERSTAND THE PROBLEMS INVOLVED IN THIS TYPE OF FACILITY. B. THE BIDDER COULD ADD NOTHING TO THE QUESTION OF PREVIOUS EXPERIENCE IN WIND TUNNEL DESIGN. THE PREVIOUS EVALUATION RESULT WAS BASED ON HIS STATED EXPERIENCE WHICH WAS INSUFFICIENT FOR THE REQUESTED TASK. TO REITERATE, ONLY 2 COMPONENTS FOR A WIND TUNNEL AT NASA WERE CONSTRUCTED (NOT DESIGNED) BY THE COMPANY.

C. NO ADDITIONAL RESUME OF HIS PERSONNEL WAS PROVIDED. IN HIS LETTER DATED 20 NOVEMBER 1967 THE BIDDER STATES THAT HE PLANS TO USE AS CONSULTANT, MR. PAUL RADACH, WHO IS A GOVERNMENT EMPLOYEE AT NASA AMES. THE ADVISABILITY TO USE A GOVERNMENT EMPLOYEE IN A GOVERNMENT CONTRACT IS QUESTIONED. D. TO THE QUESTION CONCERNING THE COMPANY'S TECHNICAL FACILITIES, THE ANSWER SUPPLIED CONSISTED OF NAMES OF COMPANIES WHICH COULD BE USED AS SUBCONTRACTORS. THE COMPANY HAS AVAILABLE ONE LATHE, ONE DRILL PRESS AND A SMALL MILLING MACHINE. IN THE ANSWER TO THE REQUEST TO SUBMIT DATA OR DRAWINGS TO PERMIT RELIABLE EVALUATION OF THE BID, THE BIDDER ADMITS THAT HE DOES NOT HAVE THE RESOURCES AVAILABLE TO FULFILL THIS REQUEST.

E. TO OBTAIN DATA WHICH WERE FELT TO EXIST AT THE BIDDER'S PLANT AND WERE NOT SUBMITTED WITH THE ORIGINAL BID, THE BIDDER WAS VISITED AND THE RESULTS OF THIS TRIP ARE CONDENSED IN THE ATTACHMENT. "2. SINCE THE BIDDER COULD NOT PROVIDE ADDITIONAL INFORMATION ALLOWING REVISION OF THE RESULTS OBTAINED EARLIER BY THE EVALUATION TEAM, IT IS CONCLUDED THAT THE BIDDER IS UNACCEPTABLE FOR THE REQUESTED PROCUREMENT.'

IN A MEMORANDUM DATED NOVEMBER 21, ARL NOTIFIED THE PROCURING ACTIVITY THAT IT WAS URGENT FOR THE PROCUREMENT TO BE AWARDED AS EARLY AS POSSIBLE, PREFERABLY NOT LATER THAN DECEMBER 1, 1967, DUE TO POSSIBLE LOSS OF THE FUNDS COMMITTED TO THE PROCUREMENT IF THEY WERE NOT PROMPTLY OBLIGATED, AND BECAUSE IT WAS ESSENTIAL THAT THE WORK INVOLVED BEGIN BEFORE THE END OF THE CALENDAR YEAR 1968 IN ORDER TO KEEP THE RESEARCH PROGRAM ON SCHEDULE. CONCERNING THE SIGNIFICANCE OF THE RESEARCH PROGRAM, THE MEMORANDUM STATED THAT THE PROGRAM WAS EXPECTED TO PROVIDE SEVERAL CONTRIBUTIONS TO VARIOUS CURRENT AND PLANNED AIR FORCE SYSTEMS AND PROGRAMS, WHICH WERE IDENTIFIED BY NAME, AND HAS POSSIBLE APPLICATION TO REUSEABLE BOOSTERS AND REUSEABLE SPACECRAFT AS WELL AS A POTENTIAL HYPERSONIC TRANSPORT. THE MEMORANDUM FURTHER STATED THAT THE PROCUREMENT IN QUESTION WAS THE FORERUNNER OF A SUBSEQUENT FACILITY; THAT BOTH FACILITIES ARE PART OF THE 1967 FIVE-YEAR PLAN; AND THAT THE ENTIRE PROGRAM WILL EXTEND WELL INTO THE 1976-77 TIME PERIOD, THUS EVIDENCING THE NEED FOR CONTINUITY OF THE WORK AND AVOIDANCE OF DELAYS.

FOLLOWING A DETERMINATION BY THE CONTRACTING OFFICER THAT YOUR PROPOSAL WAS NONRESPONSIVE TO THE TECHNICAL REQUIREMENTS, YOUR BID WAS REJECTED AND AWARD WAS MADE ON NOVEMBER 30 TO FLUIDYNE, WHO WAS NEXT LOWEST AS TO PRICE, WAS BOTH RESPONSIVE AND RESPONSIBLE, AND HAD SCORED THE GREATEST NUMBER OF POINTS ON TECHNICAL EVALUATION. APPROVAL OF THE AWARD AT THE NEGOTIATED PRICE OF $302,018 WAS ISSUED ON DECEMBER 6, 1967, AND PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION 3-508.3, THE CONTRACTING OFFICER ISSUED NOTIFICATION THEREOF TO YOU AND TO THE OTHER UNSUCCESSFUL OFFERORS ON DECEMBER 19, 1967.

YOU CONTEND THAT THE AWARD TO FLUIDYNE AT A PRICE HIGHER BY $116,925 THAN YOUR PRICE IS IN DISREGARD OF THE INTERESTS OF THE UNITED STATES. YOU CLAIM THAT YOU ARE QUALIFIED TO PERFORM THE CONTRACT; THAT YOU WERE RESPONSIVE TO THE RFP SINCE PARAGRAPH 2.12 OF THE SPECIFICATIONS MERELY STATES THAT COSTS OF DESIGN, FABRICATION, ETC., SHOULD BE INCLUDED IN THE PROPOSAL AND DOES NOT PROVIDE THAT A DETAILED DESIGN SHOULD BE GIVEN PRIOR TO THE AWARD OF THE CONTRACT; AND THAT IF THE DEPARTMENT DESIRED TO CONFER WITH YOU ON YOUR DESIGN, SUFFICIENT TIME SHOULD HAVE BEEN ALLOWED, CERTAINLY SEVERAL WEEKS IN LIEU OF THE WEEKEND OF NOVEMBER 17 TO 20, WHICH YOU CONTEND DID NOT GIVE YOU TIME TO PREPARE FOR THE VISIT OF THE ARL REPRESENTATIVES. FURTHER, YOU STATE THAT AT THE TIME OF THEIR VISIT TO YOUR PLANT, THE APPROACH OF THE ARL REPRESENTATIVES WAS NEGATIVE AND LEFT THE IMPRESSION THAT THE ONLY REASON THEY HAD COME TO INTERVIEW YOU WAS TO DO SOME PAPER WORK "FOR SOME INTERESTED IG OR GAO TO REVIEW AT A LATER DATE.' IN ADDITION, YOU STATE THAT THE FACT THAT NOTICE OF REJECTION OF YOUR OFFER WAS NOT ISSUED UNTIL DECEMBER 19, ONE MONTH AFTER THE ARL VISIT, INDICATES THAT NEITHER TIME NOR EMERGENCY WAS A FACTOR IN MAKING THE AWARD.

IN THE CIRCUMSTANCES, AND PARTICULARLY BECAUSE YOUR PRICE WAS MORE THAN ONE-THIRD LOWER THAN THE PRICE OF FLUIDYNE, YOU CONTEND THAT AN ATTEMPT SHOULD HAVE BEEN MADE TO DETERMINE IF YOU COULD PERFORM, OR, IN THE INTEREST OF FAIRNESS, WITHDRAW AS A RESULT OF AN ERROR (ALTHOUGH YOU STATE YOU DO NOT CLAIM ERROR). FINALLY, YOU STATE THAT YOU ARE READY, WILLING, AND ABLE TO PERFORM THE PROJECT AT A SAVING OF OVER $100,000 TO THE GOVERNMENT.

IT IS THE POSITION OF THE DEPARTMENT OF THE AIR FORCE THAT SINCE YOU DID NOT INCLUDE IN YOUR PROPOSAL, AND THE PROCUREMENT AND TECHNICAL PERSONNEL WERE UNSUCCESSFUL IN THEIR UNUSUAL EFFORT TO OBTAIN FROM YOU, THE INFORMATION NECESSARY TO DETERMINE THAT YOUR PROPOSAL CONFORMED TO THE OVERALL REQUIREMENTS OF THE RFP IN ACCORDANCE WITH PARAGRAPH 2.12 OF THE STATEMENT OF WORK, THERE WAS NO ALTERNATIVE FOR THE TECHNICAL PERSONNEL BUT TO REJECT YOUR PROPOSAL AS UNACCEPTABLE, AND THAT THE CONTRACTING OFFICER THEREFORE PROPERLY DETERMINED THAT YOUR PROPOSAL WAS NONRESPONSIVE TO THE INFORMATION REQUIREMENT.

WHEN AUTHORITY TO NEGOTIATE A CONTRACT EXISTS AND IS USED, THE TERMS AND CONDITIONS UPON WHICH THE PROPOSALS ARE REQUESTED AND EVALUATED ARE MATTERS PRIMARILY FOR DETERMINATION BY THE PROCURING AGENCY. IN THE PROCUREMENT OF SUPPLIES AND SERVICES INVOLVING DEVELOPMENT AND RESEARCH, THE AGENCY NECESSARILY IS VITALLY CONCERNED WITH THE QUALIFICATIONS AND CAPABILITIES OF THE CONTRACTOR TO WHOM IT AWARDS A CONTRACT, AND MUST BE ALLOWED REASONABLE DISCRETION IN FIXING THE STANDARDS BY WHICH THEY WILL BE JUDGED AND THE KIND AND EXTENT OF INFORMATION TO BE FURNISHED AS A BASIS FOR APPLYING THOSE STANDARDS. SEE, IN THIS CONNECTION, PARAGRAPH 10/F), STANDARD FORM 33A, PAGE 49 OF THE RFP, WHICH SPECIFICALLY RESERVES TO THE GOVERNMENT THE RIGHT TO ACCEPT OTHER THAN THE LOWEST PROPOSAL AND TO REJECT ANY OR ALL PROPOSALS.

AS YOU HAVE POINTED OUT, THE DETAILED DESIGN OF THE FACILITY IS PART OF THE WORK TO BE PERFORMED UNDER THE CONTRACT, AND THE DRAWINGS THEREFOR ARE TO BE FURNISHED ONLY AFTER POST-AWARD DESIGN CONFERENCES WITH THE CONTRACTING OFFICER'S DESIGNATED REPRESENTATIVES. THE INFORMATION REQUIREMENT IN PARAGRAPH 2.12 OF THE STATEMENT OF WORK, HOWEVER, WAS A SEPARATE REQUIREMENT FOR INFORMATION TO BE FURNISHED IN THE PRE-AWARD PROPOSAL TO ENABLE THE PROCURING ACTIVITY TO DETERMINE THE TECHNICAL SUFFICIENCY OF EACH PROPOSAL.

YOUR CONTENTION WITH RESPECT TO THE REQUIREMENTS OF PARAGRAPH 2.12 DOES NOT GIVE FULL EFFECT TO ALL THE LANGUAGE THEREOF. THAT PARAGRAPH DOES NOT REQUIRE MERELY A STATEMENT OF COSTS, BUT A BREAKDOWN OF COSTS "IDENTIFYING" ALL LABOR, MATERIALS, AND SPECIFICATIONS FOR MAJOR EQUIPMENT ITEMS, AND ALSO THE IDENTIFICATION OF EACH MAJOR SUBASSEMBLY AS A SEPARATE ITEM, WITH A COST BREAKDOWN AND SPECIFICATIONS FOR EACH SUBASSEMBLY. DO NOT THINK THAT THESE REQUIREMENTS CALL FOR A DETAILED DESIGN PRIOR TO BIDDING, BUT WE FEEL THAT THEY ADEQUATELY INDICATE THE INTENT THAT PROPOSALS ARE TO BE BASED UPON A DEFINITE PRELIMINARY OR OUTLINE DESIGN OR PLAN SUFFICIENTLY FORMULATED TO ESTABLISH THAT THE PROPOSER CLEARLY UNDERSTANDS THE REQUIREMENTS TO BE MET AND HAS DECIDED UPON A DEFINITE APPROACH WHICH APPEARS TO BE TECHNICALLY CAPABLE OF MEETING THEM. AS WE UNDERSTAND THE SOLICITATION AND THE ADMINISTRATIVE EXPLANATION THEREOF, THE AIR FORCE IS SEEKING AN OPERABLE RESEARCH FACILITY WHICH, WHILE IT WILL NOT CONSTITUTE A MAJOR SCIENTIFIC OR TECHNICAL BREAKTHROUGH, WILL BE A DEFINITE TECHNOLOGICAL ADVANCE IN THE FIELD OF AERODYNAMIC RESEARCH, AND THE PROVISIONS IN QUESTION WERE INTENDED TO AFFORD SOME BASIS ON WHICH TO MAKE AN INTELLIGENT JUDGMENT AS TO THE CAPABILITY OF POTENTIAL CONTRACTORS TO ACHIEVE THE DESIRED RESULT.

ON THE RECORD PRESENTED WE FEEL THAT WE MUST ACCEPT THE JUDGMENT OF THE TECHNICAL AND PROCUREMENT PERSONNEL OF THE AIR FORCE THAT YOUR PROPOSAL DID NOT FURNISH ADEQUATE INFORMATION TO ENABLE THEM TO ACCEPT YOUR CAPABILITY.

THE RECORD SHOWS THAT AFTER THE INITIAL TECHNICAL EVALUATION OF THE PROPOSALS THE PROCURING ACTIVITY NOT ONLY AFFORDED YOU TWO ADDITIONAL OPPORTUNITIES TO SUPPLY THE NECESSARY EVALUATION INFORMATION, FIRST BY TELEGRAM AND SECOND BY THE VISIT OF THE ARL REPRESENTATIVES TO YOUR PLANT, BUT ALSO BROUGHT TO YOUR ATTENTION THE POSSIBILITY THAT YOU HAD MADE A MISTAKE IN PRICE IN YOUR PROPOSAL. SUCH ACTIONS, IN OUR VIEW, SHOW THAT THE PROCURING ACTIVITY MADE A SINCERE EFFORT TO PERMIT YOU TO ESTABLISH THE ADEQUACY OF YOUR PROPOSAL TECHNICALLY AND OTHERWISE, AND CONTROVERT YOUR STATEMENT THAT YOU WERE NOT AFFORDED AN OPPORTUNITY TO WITHDRAW BECAUSE OF ERROR, WHICH, YOU STATE, YOU DO NOT CLAIM.

ALTHOUGH YOU INDICATED IN YOUR LETTER OF NOVEMBER 20 TO THE CONTRACTING OFFICER THAT YOU WERE CONFUSED AT THE TIME YOU PREPARED YOUR PROPOSAL CONCERNING THE INFORMATION REQUIREMENT IN THE RFP, THE FACT THAT ALL OF THE REMAINING OFFERORS FURNISHED THE REQUIRED INFORMATION IN THEIR PROPOSALS IS INDICATIVE, IN OUR OPINION, THAT THE RFP WAS NOT AMBIGUOUS. MORE IMPORTANT, SINCE YOU DID NOT SEEK CLARIFICATION OF THE RFP LANGUAGE BY WRITING TO THE PROCURING ACTIVITY AS INSTRUCTED BY THE TERMS OF THE SOLICITATION OR BY ATTENDING THE PREPROPOSAL CONFERENCE AT WHICH ANY QUESTIONS YOU HAD MIGHT HAVE BEEN ANSWERED, YOU ASSUMED THE RISK OF NONCOMPLIANCE WITH THE RFP BY FAILING TO FURNISH SUCH INFORMATION AND THE CONSEQUENT REJECTION OF YOUR PROPOSAL AS NONRESPONSIVE.

CONCERNING THE SUFFICIENCY OF THE TIME WHICH WAS ALLOWED FOR THE PREPARATION OF THE DESIGN INFORMATION, THE RECORD SHOWS THAT ASIDE FROM THE 6-WEEK PERIOD ALLOWED FOR SUBMISSION OF PROPOSALS, WHICH WAS ADEQUATE FOR ALL OF THE REMAINING OFFERORS TO COMPLY WITH SUCH REQUIREMENT, YOU HAD THREE ADDITIONAL WEEKS TO ASSEMBLE THE INFORMATION BETWEEN THE DATE THE PROPOSALS WERE OPENED AND THE DATE FIXED IN THE TELEGRAM FOR THE FURNISHING THEREOF. ACCORDINGLY, AND IN VIEW OF THE DEPARTMENT'S STATEMENTS CONCERNING THE NEED FOR CONTINUITY OF THE PROGRAM OF WHICH THE CONTRACT WORK IN QUESTION IS A PART, WE ARE UNABLE TO CONCLUDE THAT YOU WERE NOT AFFORDED SUFFICIENT TIME TO PREPARE THE DESIGN INFORMATION WHICH WAS REQUIRED FOR EVALUATION PURPOSES AS DISTINGUISHED FROM THE DETAIL DESIGN WHICH WAS NOT REQUIRED TO BE PREPARED UNTIL AFTER AWARD.

IN ADDITION TO THE POINTS RAISED BY THE AIR FORCE WITH RESPECT TO YOUR PROPOSAL, WE NOTE THAT YOUR COST BREAKDOWN INCLUDED A FIGURE OF $40,000 FOR ENGINEERING (INCLUDING OVERHEAD), WHEREAS THE THREE PROPOSALS WHICH RECEIVED THE HIGHEST TECHNICAL SCORES INCLUDED ENGINEERING COSTS RANGING FROM $80,000 TO $124,000. IN VIEW OF THE REPORTED EXPERIENCE AND DEMONSTRATED COMPETENCE OF THE FIRMS SUBMITTING THOSE PROPOSALS, THIS DISCREPANCY WOULD SEEM TO FURNISH SOME SUPPORT TO THE AIR FORCE SUGGESTION THAT YOU DID NOT HAVE AN ADEQUATE APPRECIATION OF THE PROBLEMS PRESENTED.

FOR THE REASONS STATED WE FIND NO LEGAL BASIS TO QUESTION THE REJECTION OF YOUR BID AND THE VALIDITY OF THE AWARD WHICH WAS SUBSEQUENTLY MADE AND YOUR PROTEST IS DENIED.