B-164434, NOVEMBER 13, 1968, 48 COMP. GEN. 314

B-164434: Nov 13, 1968

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THEN WITHOUT FURTHER NEGOTIATION TO REJECT 6 OUT OF 7 PROPOSALS FOR TECHNICAL REASONS THAT REFLECT DETAILED AND RIGID REQUIREMENTS IS A PROCEDURE THAT IS NOT IN ACCORD WITH THE INFORMATION STANDARDS PRESCRIBED BY PARAGRAPH 3-501 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION AND BY PARAGRAPH 4-105 OF THE REGULATION SPECIFICALLY RELATING TO RESEARCH AND DEVELOPMENT CONTRACTS. THE RESERVATION OF AN UNQUALIFIED OPTION TO THE CONTRACTING OFFICER TO CONSIDER AN ORIGINAL PROPOSAL AS FINAL WITHOUT EXTENDING THE PRIVILEGE OF REVISING THE QUOTATION OR CONDUCTING ANY NEGOTIATIONS WITH ANY OFFEROR WAS AT VARIANCE WITH 10 U.S.C. 2304 (G) AND PARAGRAPH 3-805 OF THE ARMED SERVICES PROCUREMENT REGULATION AND THE PROCEDURE OF DENYING AN OFFEROR THE OPPORTUNITY TO NEGOTIATE SHOULD BE CORRECTED.

B-164434, NOVEMBER 13, 1968, 48 COMP. GEN. 314

CONTRACTS - RESEARCH AND DEVELOPMENT - TECHNICAL DEFICIENCIES OF PROPOSALS - EVALUATION PROPRIETY THE PROCEDURE OF STATING THE GOVERNMENT'S REQUIREMENTS IN A REQUEST FOR PROPOSALS FOR THE DESIGN, FABRICATION, AND INSTALLATION OF A WEIGHING SCALES SYSTEM FOR THE C-5A AIRCRAFT IN BROAD GENERAL TERMS, EMPHASIZING RELIANCE ON THE INGENUITY OF OFFERORS TO PROPOSE THE ACTUAL DESIGN OF THE SYSTEM, AND THEN WITHOUT FURTHER NEGOTIATION TO REJECT 6 OUT OF 7 PROPOSALS FOR TECHNICAL REASONS THAT REFLECT DETAILED AND RIGID REQUIREMENTS IS A PROCEDURE THAT IS NOT IN ACCORD WITH THE INFORMATION STANDARDS PRESCRIBED BY PARAGRAPH 3-501 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION AND BY PARAGRAPH 4-105 OF THE REGULATION SPECIFICALLY RELATING TO RESEARCH AND DEVELOPMENT CONTRACTS. THEREFORE, THE PROCEDURE SHOULD BE CORRECTED TO PROVIDE THAT OFFERORS BE INFORMED OF ALL THE EVALUATION FACTORS INVOLVED IN A PROCUREMENT AND OF THE RELATIVE WEIGHTS TO BE ATTACHED TO EACH FACTOR. CONTRACTS - NEGOTIATION - LIMITATION ON NEGOTIATION - PROPRIETY IN A REQUEST FOR PROPOSALS, THE RESERVATION OF AN UNQUALIFIED OPTION TO THE CONTRACTING OFFICER TO CONSIDER AN ORIGINAL PROPOSAL AS FINAL WITHOUT EXTENDING THE PRIVILEGE OF REVISING THE QUOTATION OR CONDUCTING ANY NEGOTIATIONS WITH ANY OFFEROR WAS AT VARIANCE WITH 10 U.S.C. 2304 (G) AND PARAGRAPH 3-805 OF THE ARMED SERVICES PROCUREMENT REGULATION AND THE PROCEDURE OF DENYING AN OFFEROR THE OPPORTUNITY TO NEGOTIATE SHOULD BE CORRECTED.

TO THE SECRETARY OF THE AIR FORCE, NOVEMBER 13, 1968:

BY LETTER DATED AUGUST 16, 1968, FILE AFSPPCA, WITH ENCLOSURES, AND SUBSEQUENT CORRESPONDENCE, THE PROCUREMENT OPERATIONS DIVISION, DIRECTORATE, PROCUREMENT POLICY, DCS/S AND L, HEADQUARTERS UNITED STATES AIR FORCE, FURNISHED OUR OFFICE WITH A REPORT ON THE PROTEST OF CONTINENTAL BUSINESS ENTERPRISES, INC. (CBE) AGAINST THE AWARD OF A CONTRACT TO RAILWEIGHT, INC., UNDER REQUEST FOR PROPOSALS (RFP) FO4700 68- R-2596. SIMILAR PROTESTS WERE FILED WITH THE CONTRACTING OFFICER BY GILMORE INDUSTRIES, INCORPORATED AND ORMOND, INCORPORATED.

THE SUBJECT RFP, ISSUED ON MARCH 22, 1968, CONTEMPLATED A FIXED PRICE RESEARCH AND DEVELOPMENT CONTRACT FOR THE DESIGN, FABRICATION, AND INSTALLATION OF A WEIGHING SCALES SYSTEM FOR THE C-5A AIRCRAFT, THE SYSTEM TO BE INSTALLED IN THE WEIGHTS AND BALANCE HANGAR, EDWARDS AIR FORCE BASE, CALIFORNIA. THE RFP SET OUT "DESIGN AND PERFORMANCE CRITERIA" RATHER THAN DETAILED SPECIFICATIONS AND ENCOURAGED A CONTRACTOR CRITIQUE OF THE WEIGHING SCALES CONFIGURATION SHOWN ON DRAWINGS ATTACHED TO THE RFP. THE RFP ALSO PROVIDED FOR THE SUBMISSION OF ALTERNATE PROPOSALS. PARAGRAPH 9 OF THE RFP PROVIDED:

YOU ARE CAUTIONED TO CAREFULLY REVIEW ALL ITEMS, CONDITIONS AND SPECIFICATIONS OF THIS REQUEST FOR PROPOSAL PRIOR TO SUBMISSION OF YOUR PROPOSAL. YOUR PROPOSAL SHOULD BE COMPLETE IN ALL DETAILS, SINCE EVALUATION OF THE PROPOSAL WILL DETERMINE WHETHER FURTHER CONSIDERATION WILL BE GIVEN TO IT AND WHETHER NEGOTIATIONS WILL BE CONDUCTED WITH YOU PRIOR TO MAKING AN AWARD. AT HIS OPTION, THE CONTRACTING OFFICER MAY CONSIDER YOUR ORIGINAL PROPOSAL AS FINAL WITHOUT EXTENDING THE PRIVILEGE OF REVISING THE QUOTATION OR CONDUCTING ANY NEGOTIATIONS WITH ANY OFFEROR. THE TERM ,NEGOTIATION" DOES NOT IMPLY THAT AN OPPORTUNITY AUTOMATICALLY EXISTS TO SUBMIT REVISIONS TO YOUR ORIGINAL PROPOSAL AT WILL, NOR DOES IT IMPLY THAT THE SUBMISSION OF SUCH REVISION ON A UNILATERAL BASIS WILL BE CONSIDERED IN THE AIR FORCE EVALUATION PROCESS. THE INSTRUCTIONS FOR PREPARING PROPOSALS STATED IN PARAGRAPH 1 (B):

THE PROPOSAL SHOULD CONTAIN AN OUTLINE OF THE PROPOSED LINES OF INVESTIGATION, METHOD OF APPROACH TO THE PROBLEM, ANY RECOMMENDED CHANGES TO THE TECHNICAL EXHIBIT, THE PHASES OR STEPS INTO WHICH THIS PROJECT MIGHT LOGICALLY BE DIVIDED, ESTIMATED TIME REQUIRED TO COMPLETE EACH PHASE OR STEP, AND ANY OTHER INFORMATION CONSIDERED PERTINENT TO THE PROBLEM. THE PROPOSAL SHOULD NOT MERELY OFFER TO CONDUCT AN INVESTIGATION IN ACCORDANCE WITH THE TECHNICAL EXHIBIT, BUT SHOULD OUTLINE THE ACTUAL INVESTIGATION PROPOSED AS SPECIFICALLY AS POSSIBLE. FURTHER, THE TECHNICAL EXHIBIT IS NOT INTENDED AS A STATEMENT OF WORK TO BE ACCOMPLISHED, BUT RATHER AS AN INDICATION OF SOME OF THE POSSIBLE APPROACHES TO THE PROBLEM AS RECOGNIZED BY THIS CENTER. THE CONTRACTOR IS NOT LIMITED TO THE SUGGESTED APPROACHES, BUT IS ENCOURAGED TO SUBMIT HIS OWN APPROACHES FOR EQUAL OR EVEN PREFERRED CONSIDERATION. THE OFFEROR SHALL PRESENT ALL DESIGN ANALYSIS AND TECHNICAL DATA THAT IS NECESSARY TO SUPPORT THE PROPOSED DESIGN.

A PREPROPOSAL CONFERENCE WAS HELD ON APRIL 19, 1968, DURING WHICH PROSPECTIVE OFFERORS INSPECTED THE SITE FOR THE SCALES AND ATTENDED A MEETING AT WHICH THE TECHNICAL REQUIREMENTS WERE REPORTEDLY DISCUSSED PARAGRAPH BY PARAGRAPH. THE TENOR OF THIS CONFERENCE, AT LEAST WITH REGARD TO SAFETY REQUIREMENTS, WAS THAT THE RESPONSIBILITY FOR DETERMINING HOW TO MEET THE AIR FORCE REQUIREMENTS RESTED WITH THE OFFEROR. HOWEVER, THE RFP CONTAINED NO GUIDANCE CONCERNING THE EVALUATION STANDARDS TO BE EMPLOYED IN DETERMINING THE COMPETITIVE RANGE OF RESPONSIVE OFFERS.

THE FINAL DATE FOR SUBMISSION OF PROPOSALS WAS APRIL 29, 1968, AND SEVEN PROPOSALS, SET OUT BELOW IN ESCENDING ORDER OF PRICE, WERE TIMELY RECEIVED:

REVERE CORPORATION $118,455

CONTINENTAL BUSINESS ENTERPRISES 123,400

GILMORE INDUSTRIES, INC. 165,906

RAILWEIGHT, INC. 213,573

ORMOND, INC. 224,596

C.G. SYSTEMS, INC. 249,921

DECATUR IRON AND STEEL CO. 508,390

AFTER A TECHNICAL EVALUATION BY A TEAM OF AIR FORCE ENGINEERS, IT WAS DETERMINED ON MAY 15, 1968, THAT ALL PROPOSALS EXCEPT THE ONE SUBMITTED BY RAILWEIGHT WERE TECHNICALLY UNACCEPTABLE AND THAT NEGOTIATIONS, THEREFORE, WOULD BE CONDUCTED ONLY WITH RAILWEIGHT. NEGOTIATIONS CONDUCTED WITH RAILWEIGHT ON MAY 16, 1968, RESULTED IN AN AGREED PRICE OF $205,400. THE SIX OFFERORS DETERMINED TO HAVE SUBMITTED UNACCEPTABLE PROPOSALS WERE NOTIFIED OF THE REJECTION OF THEIR PROPOSALS BY LETTERS FROM THE CONTRACTING OFFICER DATED MAY 21, 1968. ALTHOUGH AWARD OF A CONTRACT TO RAILWEIGHT WAS INTITIALLY POSTPONED PENDING RESOLUTION OF THE PROTESTS, IT WAS DETERMINED EARLY IN AUGUST 1968 THAT ANY FURTHER DELAY IN AWARD OF THE SCALE CONTRACT WOULD CAUSE SLIPPAGE IN THE ENTIRE C-5A PROGRAM. ACCORDINGLY, AFTER NOTIFICATION TO OUR OFFICE AS REQUIRED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-407.9 (B) (2), AWARD WAS MADE TO RAILWEIGHT ON AUGUST 21, 1968, AT THE NEGOTIATED PRICE OF $205,400.

THE REASONS ADVANCED BY THE PROJECT ENGINEERS FOR THE REJECTION OF THE SIX UNACCEPTABLE PROPOSALS WERE SET OUT IN A MEMORANDUM TO THE CONTRACTING OFFICER. THOSE PORTIONS OF THE MEMORANDUM RELATING TO THE CBE, ORMOND, AND GILMORE PROPOSALS ARE SET OUT BELOW:

B. CONTINENTAL BUSINESS ENTERPRISES (CBE): THE CBE PROPOSAL IS UNACCEPTABLE BECAUSE OF A POOR ENGINEERING APPROACH: THE CBE PROPOSAL DOES NOT SHOW AN ACCEPTABLE APPROACH TO THE PROBLEM OF SAFETY AS PRESENTED IN PARAGRAPH 6.4.1 AND 6.4.2 ON PAGE CBE-12. THIS IS TOTALLY UNSATISFACTORY FROM A SAFETY STANDPOINT SINCE THE REQUIREMENTS CLEARLY STATE THAT THE READOUT CONSOLE WILL BE LOCATED BENEATH THE FUEL LADEN WING OF THE C-5A, AND THAT A STATIC DISCHARGE COULD CAUSE AN EXPLOSION WHEN IN A FUEL-AIR ENVIRONMENT. THE CBE PROPOSAL DOES NOT GIVE ANY CONSIDERATION FOR TEMPERATURE STABILIZATION OF THE ELECTRONICS EQUIPMENT AND DOES NOT SHOW HOW THE PERFORMANCE CRITERIA OF TR 7.1, 7.2, AND 7.3 WILL BE MET WHEN THE WEIGHING SYSTEM IS SUBJECTED TO THE ENVIRONMENTAL CONDITIONS GIVEN IN TR 6.3.1 AND TR 6.3.2. THE CBE QUALIFICATION TEST PLAN AS REQUIRED BY SPECIAL INSTRUCTIONS 3-0 IS UNACCEPTABLE BECAUSE IT OFFERS THE AIR FORCE NO ASSURANCE THAT THE ELECTRONICS EQUIPMENT CAN OPERATE SAFELY PRIOR TO DELIVERY TO THE AFFTC.

D. GILMORE INDUSTRIES, INC.: THE GILMORE PROPOSAL IS UNACCEPTABLE BECAUSE OF A POOR ENGINEERING APPROACH: GILMORE PROPOSES TO USE LOAD CELLS OF 100,000 POUNDS RATED CAPACITY WHICH IS UNSATISFACTORY BECAUSE IT DOES NOT MEET THE TECHNICAL REQUIREMENTS (TR) OF 6.1.1 IN CONJUNCTION WITH THE EAFB DRAWINGS X66H19355, REV. A AND X66H19356, REV. C. FOR A FOUR LOAD CELL SYSTEM IT CAN BE FOUND THAT THE MINIMUM RATED CAPACITY IS 148,700 POUNDS. THE GILMORE PROPOSAL DOES NOT SHOW HOW THE SAFETY CRITERIA SET FORTH IN TR 6.4.1 WILL BE MET. THE GILMORE PROPOSAL DEVIATES FROM THE SYSTEM ACCEPTANCE CRITERIA SET FORTH IN TR 10.3; THE GILMORE PROPOSAL ON PAGE 29 STATES: "GILMORE REQUESTS THAT THE ACCEPTANCE OF THE C-5A WEIGHING SCALES SYSTEM WILL BE AT THE CLOSE OF THIS 60 DAY ACCEPTANCE TESTING PERIOD.' THIS DOES NOT COMPLY WITH THE CONDITIONS SET FORTH IN 10.3 SINCE GILMORE MAKES NO MENTION OF SATISFACTORY PASSING ACCEPTANCE TESTING BEFORE SYSTEMS ACCEPTANCE. GILMORE HAS NOT PROVIDED ADEQUATE TEMPERATURE STABILIZATION OF THE ELECTRONIC EQUIPMENT OVER THE ENTIRE TEMPERATURE RANGE SPECIFIED IN TR 6.3.1; IT IS DOUBTFUL THAT THE PERFORMANCE CRITERIA OF TR 7.1, 7.2, AND 7.3 CAN BE MET. THE GILMORE QUALIFICATION TEST PLAN REQUIRED BY SPECIAL INSTRUCTIONS 3.0 IS UNACCEPTABLE BECAUSE IT GIVES NO ASSURANCE THAT THE SAFETY CRITERIA OF TR 6.4.1 WILL BE MET PRIOR TO THE C-5A WEIGHING SCALES SYSTEM DELIVERY TO THE AFFTC.

E. ORMOND INCORPORATED: THE ORMOND PROPOSAL IS UNACCEPTABLE BECAUSE OF A POOR ENGINEERING APPROACH AND ALSO BECAUSE OF AN INADEQUATE TECHNICAL ORGANIZATION. ORMOND PROPOSES TO USE LOAD CELLS OF 100,000 POUNDS RATED CAPACITY WHICH IS UNSATISFACTORY BECAUSE IT DOES NOT MEET THE TECHNICAL REQUIREMENTS (TR) OF 6.1.1 IN CONJUNCTION WITH THE EAFB DRAWINGS X66H19355, REV. A, AND X66H19356, REV. C. FOR A FOUR LOAD CELL SYSTEM, IT CAN BE FOUND THAT THE MINIMUM RATED CAPACITY IS 148,700 POUNDS. IT IS QUESTIONABLE WHETHER ORMOND CAN MEET THE PERFORMANCE REQUIREMENTS UNDER THE ENVIRONMENTAL CONDITIONS OF TR 6.3.1 AND TR 6.3.2. THE ORMOND PROPOSAL HAS NOT STATED CLEARLY HOW AND TO WHAT TOLERANCE TEMPERATURE STABILIZATION WILL BE MAINTAINED. THE TECHNICAL ORGANIZATION AS PRESENTED UNDER ORMOND'S SPECIAL PROPOSAL REQUIREMENTS, SUBPARAGRAPH D IS UNACCEPTABLE BECAUSE IT DOES NOT SHOW ANY KEY PERSONNEL WITH AN ELECTRICAL ENGINEERING BACKGROUND. ACCORDING TO THE DATA PRESENTED IN THE ORMOND PROPOSAL, THE PERSON TO BE ASSIGNED AS THE PROJECT ENGINEER FOR THE C-5A WEIGHING SCALES SYSTEM HAS HAD NO APPLICABLE PAST EXPERIENCE IN DESIGNING OR BUILDING WEIGHING SCALES NOR HAS HE HAD ANY PREVIOUS BACKGROUND OR EXPERIENCE IN ELECTRICAL ENGINEERING.

IN ADDITION TO THE REASONS FOR REJECTION SET OUT ABOVE, A 19-PAGE MEMORANDUM ENTITLED ,DISQUALIFICATION BACK-UP DATA" WAS PREPARED BY THE TECHNICAL EVALUATORS AND SUBMITTED TO OUR OFFICE AS PART OF THE ADMINISTRATIVE FILE. THE ADMINISTRATIVE REPORT CONCLUDES THAT THE TECHNICAL INADEQUACIES OF THE PROTESTANTS' PROPOSALS WERE SUCH THAT NEGOTIATIONS DESIGNED TO MAKE THEM TECHNICALLY ACCEPTABLE WOULD BE "UNREALISTIC AND IMPRACTICAL.'

THE PROTESTANTS, CBE IN PARTICULAR, HAVE SUBMITTED DETAILED REBUTTALS OF THE TECHNICAL REASONS ADVANCED FOR REJECTION OF THEIR RESPECTIVE PROPOSALS, CONTENDING GENERALLY THAT THEIR PROPOSALS RESPONDED ADEQUATELY TO THE RFP REQUIREMENTS AND THAT REJECTION WITHOUT BENEFIT OF NEGOTIATION WAS IMPROPER.

WITH REGARD TO THE NATURE AND EXTENT OF NEGOTIATIONS TO BE CONDUCTED WITH OFFERORS, ASPR 3-805.1, IN IMPLEMENTATION OF 10 U.S.C. 2304 (G), REQUIRES THAT "WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE, AND OTHER FACTORS CONSIDERED.' ALSO, ASPR 3-805.1 (A) (V) REQUIRES THAT "IN ANY CASE WHERE THERE IS UNCERTAINTY AS TO THE PRICING OR TECHNICAL ASPECTS OF ANY PROPOSALS, THE CONTRACTING OFFICERS HALL NOT MAKE AWARD WITHOUT FURTHER EXPLORATION AND DISCUSSION PRIOR TO AWARD.' WHILE OUR OFFICE HAS HELD THAT A PROPOSAL MUST BE CONSIDERED TO BE WITHIN A COMPETITIVE RANGE SO AS TO REQUIRE NEGOTIATIONS UNLESS IT IS SO TECHNICALLY INFERIOR OR OUT OF LINE WITH REGARD TO PRICE THAT MEANINGFUL NEGOTIATIONS ARE PRECLUDED, WE HAVE ALSO RECOGNIZED THAT THE DETERMINATION OF COMPETITIVE RANGE, PARTICULARLY AS REGARDS TECHNICAL CONSIDERATIONS, IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION WHICH WILL NOT BE DISTURBED IN THE ABSENCE OF A CLEAR SHOWING THAT SUCH DETERMINATION WAS AN ARBITRARY ABUSE OF DISCRETION. SEE B-164313 DATED JULY 5, 1968.

THERE IS VEHEMENT DISAGREEMENT ON THE PART OF THE PROTESTANTS WITH REGARD TO THE TECHNICAL CONCLUSIONS REACHED BY THE EVALUATION TEAM. HOWEVER, IN VIEW OF THE TECHNICAL NATURE OF THE DETERMINATIONS, OUR LACK OF EXPERTISE IN THIS AREA, AND THE WIDE RANGE OF DISCRETION VESTED IN THE CONTRACTING OFFICIALS, WE CANNOT CONCLUDE THAT THE DETERMINATION THAT ONLY ONE PROPOSAL WAS ACCEPTABLE CONSTITUTED A CLEAR ABUSE OF DISCRETION.

ALTHOUGH WE DO NOT QUESTION THE REJECTION OF THE THREE PROPOSALS HERE INVOLVED FOR TECHNICAL REASONS, WE DO ENTERTAIN CERTAIN RESERVATIONS CONCERNING THE PROCUREMENT PROCEDURES. ASPR 3-501 (B) REQUIRES THAT "SOLICITATIONS SHALL CONTAIN THE INFORMATION NECESSARY TO ENABLE A PROSPECTIVE OFFEROR TO PREPARE A PROPOSAL OF QUOTATION PROPERLY.' ADDITIONALLY, ASPR 4-105, CONCERNING RESEARCH AND DEVELOPMENT CONTRACTS, STATES THAT "THE PREPARATION AND USE OF A CLEAR AND COMPLETE STATEMENT OF WORK IS ESSENTIAL TO SOUND CONTRACTING FOR RESEARCH AND DEVELOPMENT. "FINALLY, WITH REGARD TO EVALUATION STANDARDS, OUR OFFICE HAS HELD IN DECISIONS TO YOUR AGENCY THAT SOUND PROCUREMENT POLICY DICTATES THAT OFFERORS BE INFORMED OF ALL EVALUATION FACTORS AND OF THE RELATIVE WEIGHTS TO BE ATTACHED TO EACH FACTOR. SEE 44 COMP. GEN. 439; 47 ID. 252.

OUR REVIEW OF THE ADMINISTRATIVE FILE REVEALS THAT, WHILE THE REQUEST FOR PROPOSALS STATED THE GOVERNMENT'S REQUIREMENTS IN BROAD GENERAL TERMS, EMPHASIZING RELIANCE ON THE INGENUITY OF THE OFFERORS FOR PROPOSING THE ACTUAL DESIGNS TO BE UTILIZED, THE TECHNICAL REASONS ADVANCED FOR REJECTION OF THE PROPOSALS OF THE THREE PROTESTANTS REFLECTED RATHER DETAILED AND RIGID REQUIREMENTS. FOR EXAMPLE, WITH REGARD TO SAFETY REQUIREMENTS, THE RFP PROVIDED: 6.4 SAFETY: 6.4.1 ELECTRICAL ARCING: ELECTRICAL ARCING OF ANY EQUIPMENT USED IN THE C 5A WEIGHING SCALES SYSTEM CANNOT BE TOLERATED. THIS IS ESPECIALLY TRUE OF THE MEASURING, READOUT, AND RECORDING INSTRUMENT SINCE IT WILL BE LOCATED BENEATH THE FUEL LADEN WING OF THE C-5A AIRCRAFT. 6.4.2 STATIC CHARGES:

THE CONTRACTOR SHALL DESIGN ALL EQUIPMENT OF THE C-5A WEIGHING SCALES SYSTEM SO THAT ELECTRICAL CHARGE BUILDUP CAN NOT OCCUR. A STATIC DISCHARGE FROM THE SYSTEM COULD CAUSE AN EXPLOSION WHEN IN A FUEL-AIR ENVIRONMENT.

WHILE THE PROPOSALS OF THE THREE PROTESTING OFFERORS ALL AGREED TO PROVIDE EQUIPMENT DESIGNED TO PRECLUDE ELECTRICAL ARCING AND STATIC DISCHARGE, THEY WERE REJECTED BECAUSE THEY FAILED TO PROPOSE SATISFACTORY SAFEGUARDS AGAINST VAPOR ENTRY IN VIEW OF THE PROBABILITY THAT THE EQUIPMENT WOULD BE OPERATED IN AN EXPLOSIVE FUEL-AIR ENVIRONMENT. ALTHOUGH WE DO NOT TAKE ISSUE WITH THE TECHNICAL DETERMINATION THAT THE SAFEGUARD AGAINST VAPOR ENTRY WAS A NECESSARY REQUIREMENT, IT DOES APPEAR THAT A REQUIREMENT IMPORTANT ENOUGH TO HAVE REQUIRED PROPOSAL REJECTION WAS ALSO SIGNIFICANT ENOUGH TO HAVE BEEN EXPLICITLY PROVIDED FOR IN THE RFP.

SIMILARLY, WHILE THE RFP IN PARAGRAPH 6.1.1 REQUIRED ONLY THAT INDIVIDUAL SCALES HAVE A WEIGHING CAPACITY OF 0 TO 300,000 POUNDS, THE REJECTION OF THE GILMORE AND ORMOND PROPOSALS, WHICH PROPOSED LOAD CELLS OF 100,000 POUNDS RATED CAPACITY, WAS ON THE BASIS THAT A MINIMUM RATED CAPACITY OF 148,700 POUNDS WAS REQUIRED. WE NOTE, HOWEVER, FROM THE FILE, THAT THE 148,700 POUNDS REQUIREMENT, ALTHOUGH KNOWN, WAS NOT INCLUDED IN THE RFP. AGAIN, IT WOULD APPEAR THAT SUCH AN IMPORTANT REQUIREMENT KNOWN IN ADVANCE SHOULD HAVE BEEN STATED IN THE RFP. OTHER REASONS ADVANCED FOR REJECTION OF THE UNACCEPTABLE PROPOSALS, SUCH AS THE ADEQUACY OF QUALIFICATION TEST PLANS, THE APPROACH TO TEMPERATURE STABILIZATION, AND THE ADEQUACY OF THE APPROACH TO THE REQUIRED PERFORMANCE CRITERIA LIKEWISE DO NOT APPEAR TO HAVE BEEN STATED WITH SUFFICIENT PARTICULARITY IN THE RFP.

WITH REGARD TO EVALUATION STANDARDS, THE FILE CONTAINS A 2-1/2-PAGE MEMORANDUM DATED MARCH 22, 1968, WHICH SETS OUT A DETAILED POINT SCORE EVALUATION SYSTEM ALLOCATING 65 POINTS TO FIVE AREAS UNDER THE HEADING "SCIENTIFIC/ENGINEERING APPROACH" AND 35 POINTS TO THREE AREAS UNDER THE HEADING "QUALIFICATIONS BASED ON BIDDERS/OFFERORS DATA.' ALSO, THE FILE CONTAINS A LATER UNDATED 2-1/2-PAGE MEMORANDUM ENTITLED "RFP NO. F04700-68 -R-2596, C-5A WEIGHING SCALES SYSTEM" WHICH LISTS FIVE "MANDATORY REQUIREMENTS," 12 "IMPORTANT REQUIREMENTS," AND A MATHEMATICAL EVALUATION FORMULA. THIS MEMORANDUM, APPARENTLY PREPARED AFTER ISSUANCE OF THE RFP BUT PRIOR TO THE SUBMISSION OF OFFERS, SET OUT THE EXPLICIT REQUIREMENT FOR MINIMUM RATED LOAD CELL CAPACITY OF 148,700 POUNDS, DISCUSSED ABOVE. NOTWITHSTANDING THE RATHER DETAILED EVALUATION CRITERIA SUMMARIZED ABOVE, NO MENTION OF EVALUATION WEIGHTS OR STANDARDS WAS MADE IN THE RFP AND, THEREFORE, IT IS DIFFICULT FOR US TO UNDERSTAND HOW OFFERORS COULD HAVE BEEN EXPECTED TO DIVINE THE EVALUATION WEIGHTS AND STANDARDS TO BE APPLIED TO THEIR OFFERS.

WE BELIEVE THAT THE RECORD DEMONSTRATES POOR PROCUREMENT PROCEDURES IN THAT THE RFP FAILED TO STATE KNOWN DESIGN REQUIREMENTS WITH SUFFICIENT PARTICULARITY AND ALSO FAILED TO INCLUDE INFORMATION CONCERNING EVALUATION WEIGHTS AND STANDARDS. ADDITIONALLY, WE BELIEVE THAT PARAGRAPH 9 OF THE RFP, QUOTED ABOVE, WHEREIN THE CONTRACTING OFFICER RESERVED TO HIMSELF AN UNQUALIFIED OPTION TO DENY NEGOTIATION OPPORTUNITY WAS AT VARIANCE WITH 10 U.S.C. 2304 (G) AND ASPR 3-805. THEREFORE, WE STRONGLY URGE THAT CORRECTIVE MEASURES BE TAKEN WITH RESPECT TO FUTURE SIMILAR PROCUREMENTS TO PRECLUDE A RECURRENCE OF THE ACTIONS WHICH PROMPTED THESE PROTESTS.