B-164302, JUL. 11, 1968

B-164302: Jul 11, 1968

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TO SCRIBE INTERNATIONALE: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST REJECTION OF YOUR TECHNICAL PROPOSAL SUBMITTED IN RESPONSE TO REQUEST FOR TECHNICAL PROPOSALS (RFTP) NO. THE SUBJECT RFTP WAS ISSUED ON JANUARY 23. THE FOLLOWING PROVISIONS PERTINENT TO YOUR PROTEST WERE INCLUDED IN THE RFTP: "2. THIS PROCUREMENT WILL BE MADE UTILIZING THE TWO STEP FORMAL ADVERTISING METHOD AS PRESCRIBED IN ASPR. STEP TWO IS A FORMALLY ADVERTISED PROCUREMENT CONFINED TO THOSE WHO SUBMITTED ACCEPTABLE TECHNICAL PROPOSALS IN STEP ONE. IT IS ANTICIPATED THAT AWARD WILL BE MADE IN THE AGGREGATE FOR 1 A. OFFERORS ARE ADVISED TO SUBMIT PROPOSALS WHICH ARE FULLY AND CLEARLY STATED. IF THE GOVERNMENT DEEMS IT NECESSARY IN ORDER TO OBTAIN SUFFICIENT ACCEPTABLE PROPOSALS TO INSURE THAT THERE WILL BE ADEQUATE COMPETITION IN THE SECOND STEP.

B-164302, JUL. 11, 1968

TO SCRIBE INTERNATIONALE:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST REJECTION OF YOUR TECHNICAL PROPOSAL SUBMITTED IN RESPONSE TO REQUEST FOR TECHNICAL PROPOSALS (RFTP) NO. DAHC-15-68-R-0067, ISSUED BY THE DEFENSE SUPPLY SERVICE, DEPARTMENT OF THE ARMY.

THE SUBJECT RFTP WAS ISSUED ON JANUARY 23, 1968, AS THE FIRST STEP OF A TWO STEP FORMALLY ADVERTISED PROCUREMENT FOR SPECIAL NONCOMMERCIAL TYPE LANGUAGE LABORATORIES AND TAPE RECORDERS FOR THE DEFENSE LANGUAGE INSTITUTE (DLI) FOR USE IN TRAINING MILITARY PERSONNEL IN FOREIGN LANGUAGES. THE RFTP INCORPORATED BY REFERENCE SPECIFICATION NO. 1-1966, DATED FEBRUARY 28, 1966, AND SPECIFICATION NO. 2-1966, DATED MARCH 3, 1966, FOR THE TAPE RECORDERS AND LANGUAGE LABORATORIES, RESPECTIVELY. THE RFTP PROVIDED FOR SUBMISSION OF TECHNICAL PROPOSALS NO LATER THAN FEBRUARY 23, 1968. THE FOLLOWING PROVISIONS PERTINENT TO YOUR PROTEST WERE INCLUDED IN THE RFTP:

"2. THIS PROCUREMENT WILL BE MADE UTILIZING THE TWO STEP FORMAL ADVERTISING METHOD AS PRESCRIBED IN ASPR, SECTION II, PART 5. STEP ONE CONSISTS OF THE REQUEST FOR, AND SUBMISSION, EVALUATION, AND, IF NECESSARY, DISCUSSION OF, TECHNICAL PROPOSALS, WITHOUT PRICING, TO DETERMINE THE ACCEPTABILITY OF THE SUPPLIES AND SERVICES OFFERED. STEP TWO IS A FORMALLY ADVERTISED PROCUREMENT CONFINED TO THOSE WHO SUBMITTED ACCEPTABLE TECHNICAL PROPOSALS IN STEP ONE. IT IS ANTICIPATED THAT AWARD WILL BE MADE IN THE AGGREGATE FOR 1 A. AND B. ABOVE.

"5. ANY PROPOSAL WHICH MODIFIES, OR FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OR SPECIFICATIONS OF THIS REQUEST FOR TECHNICAL PROPOSALS SHALL BE CONSIDERED NONRESPONSIVE AND CATEGORIZED AS UNACCEPTABLE.

"7. OFFERORS ARE ADVISED TO SUBMIT PROPOSALS WHICH ARE FULLY AND CLEARLY STATED, SINCE THE GOVERNMENT MAY MAKE A FINAL DETERMINATION OF ACCEPTABILITY SOLELY ON THE BASIS OF THE PROPOSAL AS SUBMITTED. HOWEVER, IF THE GOVERNMENT DEEMS IT NECESSARY IN ORDER TO OBTAIN SUFFICIENT ACCEPTABLE PROPOSALS TO INSURE THAT THERE WILL BE ADEQUATE COMPETITION IN THE SECOND STEP, OR IF THE GOVERNMENT OTHERWISE DEEMS IT DESIRABLE IN ITS BEST INTERESTS, THE GOVERNMENT MAY, SOLELY IN ITS DISCRETION, REQUEST ADDITIONAL INFORMATION FROM OFFERORS WHICH ARE CONSIDERED REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE THEREBY. SUCH ADDITIONAL CLARIFYING INFORMATION SHALL SUPPLEMENT, BUT SHALL NOT BASICALLY CHANGE THE ORIGINAL PROPOSAL. FURTHER, FOR THE PURPOSE OF CLARIFICATION, THE GOVERNMENT RESERVES THE RIGHT TO DISCUSS ANY SUCH PROPOSAL WITH THE OFFEROR. EACH OFFEROR SUBMITTING AN UNACCEPTABLE TECHNICAL PROPOSAL WILL BE SO NOTIFIED UPON THE FINAL DETERMINATION OF SUCH UNACCEPTABILITY.

"9. A. AS PART OF EVERY TECHNICAL PROPOSAL, SUFFICIENT INFORMATION, BROCHURES, DRAWINGS, PICTURES AND DATA (ELECTRONIC, AUDIO AND MECHANICAL) MUST BE SUPPLIED TO SHOW AND EXPLAIN CLEARLY AND ACCURATELY THE EQUIPMENT OFFERED.'

AS A RESULT OF RECEIVING SEVERAL QUESTIONS FROM PROSPECTIVE BIDDERS CONCERNING THE RFTP, A PREBID CONFERENCE WAS HELD ON FEBRUARY 12, 1968. IT IS REPORTED THAT THE CONFERENCE LASTED SEVERAL HOURS AND WAS CONCLUDED ONLY AFTER ALL QUESTIONS FROM THOSE IN ATTENDANCE, INCLUDING YOUR REPRESENTATIVE, HAD BEEN ANSWERED. AT THE CONCLUSION OF THE MEETING IT WAS ANNOUNCED THAT BECAUSE OF THE URGENCY OF THE PROCUREMENT, COMPLETE INFORMATION AND DATA SHOULD BE FURNISHED IN THE TECHNICAL PROPOSALS. AMENDMENT TO THE RFTP WAS ISSUED TO EFFECT CERTAIN CHANGES AS A RESULT OF THE MEETING AND TO EXTEND THE TIME FOR SUBMISSION OF TECHNICAL PROPOSALS UNTIL MARCH 5, 1968.

ON MARCH 5, 12 PROPOSALS WERE RECEIVED. THE PROPOSALS WERE FORWARDED TO DLI ON MARCH 7 WITH INSTRUCTIONS TO EVALUATE THEM IN ACCORDANCE WITH THE REQUIREMENTS OF THE RFTP AND TO CLASSIFY THEM IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-503.1 (C) AS FOLLOWS:

1. ACCEPTABLE

2. REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE BY ADDITIONAL INFORMATION CLARIFYING OR SUPPLEMENTING, BUT NOT BASICALLY CHANGING THE PROPOSALS AS SUBMITTED; OR

3. IN ALL OTHER CASES, UNACCEPTABLE.

THE CONTRACTING OFFICER RECEIVED THE TECHNICAL EVALUATIONS FROM DLI ON MARCH 22. THE ONLY PROPOSAL CLASSIFIED AS ACCEPTABLE WAS THAT OF GENERAL ELECTRONICS LABORATORIES, THE PRESENT SUPPLIER OF THE ITEMS. TWO PROPOSALS WERE CLASSIFIED AS REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE AND NINE PROPOSALS, INCLUDING YOURS, WERE CLASSIFIED AS UNACCEPTABLE. AFTER CONSIDERING THE EVALUATIONS AND DISCUSSING THEM WITH DLI, THE CONTRACTING OFFICER NOTIFIED YOU ON APRIL 18 OF THE DETERMINATION THAT YOUR PROPOSAL WAS UNACCEPTABLE.

AFTER RECEIPT OF THE TECHNICAL EVALUATIONS, THE CONTRACTING OFFICER, WITH THE ASSISTANCE OF DLI TECHNICAL PERSONNEL, CONDUCTED DISCUSSIONS WITH THE TWO FIRMS WHOSE PROPOSALS WERE DETERMINED SUSCEPTIBLE OF BEING MADE ACCEPTABLE. AS A RESULT OF THESE DISCUSSIONS, INSTRUCTOMATICS' PROPOSAL WAS DETERMINED ACCEPTABLE AND THAT OF THE OTHER FIRM UNACCEPTABLE. ON MAY 17 AN INVITATION FOR BIDS, THE SECOND STEP OF THE PROCUREMENT, WAS ISSUED TO THE TWO FIRMS DETERMINED TO HAVE ACCEPTABLE PROPOSALS. BIDS FROM THESE TWO FIRMS WERE RECEIVED ON MAY 31, 1968, AND WERE OPENED.

THE BASIS FOR YOUR PROTEST IS CONTAINED IN A LETTER DATED APRIL 29, 1968, ADDRESSED TO THE DEFENSE SUPPLY SERVICE. YOU THEREIN TAKE ISSUE WITH THE TECHNICAL EVALUATION REPORT, A COPY OF WHICH YOU WERE FURNISHED. ADDITION TO DISPUTING THE FINDINGS WITH REGARD TO SPECIFIC REQUIREMENTS OF THE SPECIFICATIONS, YOU ARGUE THAT YOU "DO NOT THINK THEY ARE JUSTIFIED IN DETERMINING A SUPPLIER UNACCEPTABLE DUE TO MINOR DIFFERENCES THAT COULD BE READILY CLARIFIED" BY DISCUSSION.

BASICALLY YOUR PROTEST IS OF A TYPE WHICH HAS BEEN THE SUBJECT OF DECISIONS BY THIS OFFICE ON MANY OCCASIONS, IN THAT IT CONCERNS WHETHER THE DEFICIENCIES IN YOUR PROPOSAL WERE OF A MINOR NATURE, AND WHETHER AN OPPORTUNITY TO CORRECT THE PROPOSAL SHOULD HAVE BEEN AFFORDED. IN SUCH MATTERS IT HAS BEEN THE CONSISTENT POSITION OF THIS OFFICE THAT QUESTIONS OF WHETHER TECHNICAL PROPOSALS ARE DEFICIENT, AND WHETHER DEFICIENT TECHNICAL PROPOSALS ARE REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE, ARE ESSENTIALLY MATTERS REQUIRING THE JUDGMENT OF SCIENTIFIC OR ENGINEERING PERSONNEL TRAINED IN THE PARTICULAR FIELD CONCERNED. OUR OFFICE MUST ORDINARILY ACCEPT THE CONSIDERED JUDGMENT OF THE PROCURING AGENCY'S SPECIALISTS AND TECHNICIANS AS TO THE ADEQUACY OF A TECHNICAL PROPOSAL, UNLESS IT IS CLEARLY SHOWN THAT THE AGENCY ACTION WAS ERRONEOUS, ARBITRARY, OR NOT MADE IN GOOD FAITH. 40 COMP. GEN. 35.

WE DO NOT BELIEVE WE WOULD BE JUSTIFIED IN QUESTIONING THE AGENCY'S ACTION IN THIS CASE. UPON RECEIPT OF THE TECHNICAL EVALUATIONS, THE CONTRACTING OFFICER MADE THE FOLLOWING OBSERVATION:

"2. ALTHOUGH THERE IS A CERTAIN INCONSISTENCY IN THE EVALUATIONS, IN THAT CERTAIN ITEMS LISTED AS DEFICIENCIES ARE COMMON TO ALL THE PROPOSALS EXCEPT GEL, IT IS OUR UNDERSTANDING FROM THE TECHNICAL EVALUATIONS THAT ALL THE PROPOSALS CLASSIFIED AS UNACCEPTABLE EITHER TOOK EXCEPTION, OR MODIFIED A SPECIFICATION IN THE FIRST STEP. ON SOME INSTANCES THE EXCEPTION OR MODIFICATION WAS MAJOR IN NATURE IN OTHERS IT WAS NOT AS GREAT ALTHOUGH IT WAS AN EXCEPTION OR MODIFICATION.'

WITH RESPECT TO YOUR PROPOSAL, HE CITED THE FOLLOWING EXCEPTIONS OR MODIFICATIONS TO THE SPECIFICATIONS FROM THE EVALUATION REPORT:

"1. PORTABLE TAPE RECORDERS.

A. THE TECHNICAL PROPOSAL MODIFIED SECTION 5.6.1 (KNOBS) OF SPECIFICATIONS 1. THE SPECIFICATION AS MODIFIED IS UNACCEPTABLE.

"2. LANGUAGE LABORATORY SYSTEMS.

A. THE TECHNICAL PROPOSAL MODIFIED SECTION 5.6.1 (KNOBS) OF SPECIFICATIONS 2.

C. DESIGN OF INSTRUCTOR CONSOLE AND PICTURE OF INSTRUCTOR CONSOLE HAVE THE LOCATION OF THE SWITCHES, CONTROLS AND PROGRAM SOURCES LOCATED SO THAT THE DIMENSIONS, SPECIFIED IN SECTION 6.8, LAST SENTENCE, PARA 3, SPECIFICATIONS 2, WOULD BE EXCEEDED.

E. THE POWER REQUIREMENTS AS STATED UNDER SECTION 5.7.1 OF THE PROPOSAL FOR LABORATORIES FOR OVERSEAS ARE UNACCEPTABLE AND DO NOT MEET REQUIREMENTS OF SECTION 5.7.1 OF SPECIFICATIONS 2. THIS IN EFFECT IS A MODIFICATION OF SECTION 5.7.1 OF SPECIFICATIONS 2 AND IS NOT ACCEPTABLE, AND ACCORDING TO PARA 5 OF THE REQUEST FOR PROPOSALS, PLACES THE PROPOSAL IN THE NONRESPONSIVE CATEGORY (REF DSS-W LETTER, 23 JAN 68.)

THE CONTRACTING OFFICER ALSO CONFIRMED HIS INTERPRETATION OF THE EVALUATIONS WITH THE DLI TECHNICAL PERSONNEL. WITH RESPECT TO THE LAST SPECIFICATION, THE ADMINISTRATIVE REPORT INCLUDES THE FOLLOWING SUPPLEMENTAL EXPLANATION:

"A. SECTION 5.7.1 OF SPECIFICATIONS NO. 2 - 1966 STATES THE POWER REQUIREMENTS AS FOLLOWS:

-FACILITIES SHALL BE PROVIDED TO OPERATE THE LANGUAGE LABORATORY FROM ALL OF THE FOLLOWING AC POWER SOURCES:

A. 90 - 130 VOLT 50 CYCLE.

B. 200 - 250 VOLT 50 CYCLE.

C. 90 - 130 VOLT 60 CYCLE.

D. 200 - 250 VOLT 60 CYCLE.-

"B. THE PROPOSAL STATES:

-LANGUAGE LABORATORY SYSTEMS FOR OVERSEAS. SINCE ALL EQUIPMENT WILL BE DESIGNED TO BASICALLY OPERATE AT 50 CYCLE VOLTAGE SOURCE AT A NOMINAL 117 VOLT PLUS 10 PERCENT, IT IS PROPOSED THAT IN ALL CASES WHERE THE SYSTEM MUST BE OPERATED IN THE VOLTAGE RANGE OF 250 VOLTAGE CYCLES THAT A STEP- DOWN POWER TRANSFORMER MUST BE PROVIDED TO ACCOMPLISH REDUCTION IN VOLTAGE. THE STEP-DOWN TRANSFORMER WILL BE OF ADEQUATE SIZE TO HANDLE THE REQUIREMENTS OF THE ENTIRE LABORATORY. FOR THOSE REQUIREMENTS UTILIZING 60 CYCLE POWER SOURCES, ADEQUATE PROVISIONS WILL BE MADE AS DISCUSSED ELSEWHERE TO MAINTAIN THE OPERATING SPEEDS OF SUCH EQUIPMENT AT THEIR NOMINAL SPEEDS. A SIMILAR TYPE STEPDOWN TRANSFORMER WILL BE PROVIDED ON THOSE CASES WHERE THE LABORATORY MUST OPERATE AT 200-250 VOLTS.-

"C. IN ORDER TO MEET THE 50 AND 60 CYCLE REQUIREMENTS FOR OPERATION OF THE EQUIPMENT, A MEANS, EITHER ELECTRICAL OR MECHANICAL NOT REQUIRING DISASSEMBLAGE AND REASSEMBLAGE OF ANY PART OF THE EQUIPMENT, IS REQUIRED.

"D. THE BASIC TAPE DECK OFFERED FOR USE IN THE LANGUAGE LABORATORY SYSTEM BY SCRIBE INTERNATIONALE, INC. IS THE 400 SERIES VIKING WITH CERTAIN MODIFICATIONS. HOWEVER, THE MODIFICATIONS PROPOSED DO NOT INCLUDE THE NECESSARY MODIFICATION OF THE BASIC POWER REQUIREMENT WHICH IS LISTED IN THE VIKING 423 BROCHURE AS 110-120 VOLTS.

"E. THE TAPE DECK PROPOSED IS DESIGNED TO OPERATE OVER A RANGE OF 110-120 VOLTS OR A VARIATION OF 10 VOLTS VERSUS THE POWER REQUIREMENTS AS PER THE SPECIFICATIONS COVERING A RANGE IN ONE CASE, 90 VOLTS TO 130 VOLTS OR A VARIATION OF 40 VOLTS, AND IN THE OTHER CASE OF 200 VOLTS TO 250 VOLTS USING A STEP-DOWN TRANSFORMER RESULTING IN A VOLTAGE RANGE OF 100 VOLTS TO 125 VOLTS OR A VARIATION OF 25 VOLTS. IN BOTH CASES THE EQUIPMENT PROPOSED DEFINITELY FAILS TO MEET THE MINIMUM ACCEPTABLE STANDARDS OF OPERATION. MOTORS OF THIS NATURE IN THE TAPE RECORDERS WILL SLOW DOWN OR COMPLETELY STALL WHEN OPERATED BELOW THEIR MINIMUM STATED VOLTAGE. PROVIDE LANGUAGE TRAINING IN THE DEFENSE LANGUAGE PROGRAM, IT IS VERY OFTEN NECESSARY TO OPERATE OVERSEAS LANGUAGE LABORATORY SYSTEMS IN AREAS WHICH REQUIRE THE FACILITIES TO OPERATE OVER A WIDE RANGE OF VOLTAGES. THE TAPE DECKS IN THE PROPOSED LANGUAGE LABORATORY SYSTEMS UNDER SUCH ADVERSE CONDITIONS WOULD MAKE THE EQUIPMENT INOPERATIVE OR USELESS.'

ALTHOUGH THERE MAY BE SOME QUESTION AS TO WHETHER THE OTHER CITED EXCEPTIONS OR MODIFICATIONS TO THE SPECIFICATIONS JUSTIFIED FINDING YOUR PROPOSAL UNACCEPTABLE, WHICH IS NOT CONCEDED BY THE AGENCY, WE BELIEVE THIS IS NOT TRUE WITH RESPECT TO THE SPECIFICATION DISCUSSED ABOVE. SINCE YOUR PROPOSAL WAS DETERMINED UNACCEPTABLE, REJECTION WITHOUT DISCUSSION WAS AUTHORIZED UNDER ASPR 2-503.1 (A) (VIII), WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"* * * 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 * * *.'

ALSO, SEE 40 COMP. GEN. 35; ID. 40; 43 ID. 255.

ACCORDINGLY, WE SEE NO BASIS UPON WHICH WE MAY PROPERLY OBJECT TO THE ADMINISTRATIVE ACTION IN REJECTING YOUR TECHNICAL PROPOSAL.