B-164752, SEPT. 10, 1968

B-164752: Sep 10, 1968

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INCORPORATED: REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 15 AND LETTER OF JUNE 27. THE RFP WAS ISSUED ON MAY 7. BIDDERS WERE INVITED TO SUBMIT UNPRICED TECHNICAL PROPOSALS COVERING A REQUIREMENT FOR 22 FREQUENCY CALIBRATORS. THEY WERE ADVISED IN EFFECT THAT WHILE THE GOVERNMENT RESERVED THE RIGHT TO DISCUSS EACH TECHNICAL PROPOSAL WITH ITS SUBMITTER. IT WAS NOT CONTEMPLATED THAT THIS RIGHT WOULD BE EXERCISED WITH RESPECT TO TECHNICAL PROPOSALS WHICH THE GOVERNMENT FOUND TO BE MATERIALLY DEFICIENT OR SUBSTANTIALLY INCOMPLETE. SIX PROPOSALS WERE RECEIVED AS OF MAY 28. NASA REPORTS THAT VERY SHORTLY AFTER RECEIPT OF THESE PROPOSALS THE SIX FIRMS WERE REQUESTED TO SUBMIT DEMONSTRATION UNITS TO AID IN THE EVALUATION.

B-164752, SEPT. 10, 1968

TO ELECTRONIC LABORATORIES, INCORPORATED:

REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 15 AND LETTER OF JUNE 27, 1968, WITH ATTACHMENTS, PROTESTING THE REJECTION OF YOUR STEP 1 PROPOSAL SUBMITTED UNDER REQUEST FOR UNPRICED TECHNICAL PROPOSAL NO. 810-77893/317 (RFP), ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, GODDARD SPACE FLIGHT CENTER (GSFC).

THE RFP WAS ISSUED ON MAY 7, 1968, AS STEP 1 OF A TWO-STEP FORMAL ADVERTISING PROCEDURE. BIDDERS WERE INVITED TO SUBMIT UNPRICED TECHNICAL PROPOSALS COVERING A REQUIREMENT FOR 22 FREQUENCY CALIBRATORS, TOGETHER WITH MANUALS, SPARE PARTS LISTS AND ACCEPTANCE TEST PLANS. THEY WERE ADVISED IN EFFECT THAT WHILE THE GOVERNMENT RESERVED THE RIGHT TO DISCUSS EACH TECHNICAL PROPOSAL WITH ITS SUBMITTER, IT WAS NOT CONTEMPLATED THAT THIS RIGHT WOULD BE EXERCISED WITH RESPECT TO TECHNICAL PROPOSALS WHICH THE GOVERNMENT FOUND TO BE MATERIALLY DEFICIENT OR SUBSTANTIALLY INCOMPLETE; AND THAT FIRMS SUBMITTING SUCH UNACCEPTABLE PROPOSALS WOULD BE SO NOTIFIED UPON COMPLETION OF EVALUATION OF THE TECHNICAL PROPOSALS.

SIX PROPOSALS WERE RECEIVED AS OF MAY 28, 1968, THE SPECIFIED CLOSING DATE. NASA REPORTS THAT VERY SHORTLY AFTER RECEIPT OF THESE PROPOSALS THE SIX FIRMS WERE REQUESTED TO SUBMIT DEMONSTRATION UNITS TO AID IN THE EVALUATION. IT IS STATED BY NASA THAT THESE DEMONSTRATION UNITS WERE NOT REQUIRED NOR INTENDED AS UNITS THAT WOULD SATISFY THE SPECIFICATION REQUIREMENTS; RATHER THEY WERE REQUESTED AS AN AID IN EVALUATING THE PROPOSALS. IN THIS CONNECTION, THE RECORD CONTAINS A COPY OF YOUR LETTER DATED MAY 31, 1968, TO GSFC STATING THAT YOU WERE WILLING TO SUBMIT A FIVE POINT CALIBRATOR TO ASSIST IN THE TECHNICAL EVALUATION, BUT THAT SINCE YOU DID NOT CARRY SUCH SAMPLES IN STOCK YOU WOULD HAVE TO MODIFY AN "IN HOUSE" CALIBRATOR IN AN EFFORT TO MEET A SPECIFIED JUNE 10, 1968, DEADLINE FOR RECEIPT OF SUCH SAMPLES.

A TECHNICAL EVALUATION COMMITTEE COMPOSED OF GSFC DIGITAL DATA SYSTEMS BRANCH PERSONNEL EVALUATED THE PROPOSALS. A MEMORANDUM REPORT DATED JUNE 13, 1968, SIGNED BY THE HEAD, DIGITAL DATA SYSTEMS BRANCH, GSFC, STATES THAT YOUR PROPOSAL WAS DETERMINED TO BE UNACCEPTABLE FOR THE FOLLOWING REASONS:

"C. ELECTRONIC LABORATORIES, INC.

"1. PROVIDED NO DETAILS ON THE METHODS EMPLOYED TO MULTIPLEX CHANNELS.

"2. INDICATED THE DIFFICULTIES INHERENT IN WIDE BAND (PLUS OR MINUS 40 PERCENT DEVIATION) FILTER DESIGN YET ATTEMPTED NO DISCUSSION AND REFERENCED NON-EXISTENT PARAGRAPHS IN THE PROPOSAL AS -DEALS WITH THIS PROBLEM**

"3. AVOIDED SPECIFIC COMMITMENT TO MEET THE PLUS OR MINUS .001 PERCENT SPECIFICATION REQUIREMENT THROUGH THE USE OF VAGUE EXPRESSIONS, I.E., -THE RESOLUTION OF THE COUNTER USED AND THE PATIENCE OF THE OPERATOR BECOME THE LIMITING FACTORS-.

"4. CLAIMED TO HAVE A FILTER DESIGN CAPABLE OF MEETING THE SPECIFICATION REQUIREMENTS (PARAGRAPH 3.1.7) FOR INTERMODULATION AND HARMONIC DISTORTION, YET AGAIN FAILED TO PROVIDE SIGNIFICANT SCHEMATICS OR FILTER DESIGN CHARACTERISTICS.

"5. REFERENCED NON-EXISTENT PROPOSAL PARAGRAPHS IN DISCUSSING OUTPUT LEVEL CONTROL REQUIREMENTS; CONTAINED NO FRONT PANEL CONTROL FOR INDIVIDUALLY ADJUSTING CALIBRATOR OUTPUT SIGNAL LEVEL. "ELECTRONIC LABORATORIES, INC. HAS NEITHER BUILT A FREQUENCY CALIBRATOR NOR DO THEY APPEAR TO HAVE EITHER DIRECT OR INDIRECT EXPERIENCE IN THE SPECIFIC AREA. (THE COMPANY WAS FORMED APPROXIMATELY ONE (1) YEAR AGO; THEIR EXPERIENCE AND ENDEAVORS HAVE APPARENTLY BEEN IN THE FIELD OF BIOMEDICAL TRANSDUCERS.) THE OFFERORS SPECIFICALLY EDIT THE WORDS, DESIGN, DEVELOP, AND- FROM THEIR PERFORMANCE AND EXPERIENCE RESPONSE WHICH STATES, - ELECTRONIC LABORATORIES, INC., IS EMINENTLY QUALIFIED TO (DESIGN, DEVELOP, AND MANUFACTURE THE FREQUENCY CALIBRATORS ....- THE COMPANY FACILITIES CONSIST OF ONLY 4000 SQ. FT. PLANT AND OFFICES WITH A TOTAL OF 27 EMPLOYEES. THEY HAVE NEVER BEEN INSPECTED BY DCASR; THEY HAVE NEVER BUILT EQUIPMENT TO GSFC SPECIFICATIONS.'

THE COMMITTEE DETERMINED THAT ONLY 3 OF THE 6 PROPOSALS WERE ACCEPTABLE AND SUITABLE FOR FURTHER DISCUSSIONS. THE FIRMS SO RECOMMENDED WERE ELECTRO-MECHANICAL RESEARCH (A LARGE BUSINESS), VIDAR CORPORATION AND MONITOR SYSTEMS, INCORPORATED (BOTH SMALL BUSINESS FIRMS). THE OTHER 3 PROPOSALS (INCLUDING YOURS) WERE RECOMMENDED FOR REJECTION ON THE BASIS THAT THEY WERE NOT REASONABLY SUSCEPTIBLE TO BEING MADE TECHNICALLY ACCEPTABLE.

ON OR ABOUT JUNE 15, 1968, MR. JOHNNY HUMPHREYS CALLED THE COGNIZANT OFFICIAL AT GSFC (MR. MIKE COLLEGE) AND WAS TOLD OF THE FIVE POINTS OF DEFICIENCY FOUND IN ELI'S PROPOSAL. A CONFIRMING LETTER OF JUNE 15, 1968, WAS SENT TO YOUR FIRM STATING IN GENERAL TERMS THE REASONS FOR REJECTING YOUR PROPOSAL.

SINCE THAT TIME YOU HAVE BEEN ATTEMPTING TO OBTAIN A REEVALUATION OF YOUR PROPOSAL. THUS ON JUNE 24, 1968, YOU SUBMITTED TO GSFC A STATEMENT HEADED "TECHNICAL DISCUSSION" TO SHOW THAT YOUR PROPOSAL WAS NOT DEFICIENT OR INCOMPLETE. THIS STATEMENT WAS FORWARDED TO THE DIGITAL DATA SYSTEMS BRANCH, GSFC, FOR REVIEW. IT WAS REPORTED BY THE HEAD OF THE BRANCH THAT THE DATA CONTAINED IN YOUR "TECHNICAL DISCUSSION" DID NOT ALTER THE OPINION THAT YOUR PROPOSAL WAS UNACCEPTABLE. THE DETAILS OF THE REVIEW WERE REPORTED AS FOLLOWS:

"TECHNICAL DISCUSSION:

"I. FREQUENCY DEVIATION AND DISTORTION: "ELI NOTES AN -OBVIOUS' CLERICAL ERROR IN THEIR PROPOSAL WHICH REFERRED TO A -NON-EXISTENT- PARAGRAPH FOR A DISCUSSION OF FILTERS. THE -NON-EXISTENT- PARAGRAPH IS, IN FACT, CONTAINED IN THE PROPOSAL AND DOES DISCUSS FILTERING PROBLEMS. IN THIS PARAGRAPH, ELI DISCUSSES SOME GENERALITIES OF FILTER DESIGN, MENTIONS THE UTC COMPANY'S FILTERS AS ADEQUATE TO STANDARD IRIG CHANNELS AND CLAIMS TO HAVE A FILTER DESIGN WHICH WILL MEET SPECIFICATION DISTORTION REQUIREMENTS FOR THE WIDE BAND CHANNELS. NO DETAILED INFORMATION IS PROFFERED CONCERNING THE UTC CO. FILTERS OR THEIR SPECIFICALLY DESIGNED FILTER.

"II. STABILITY: "ELI'S DISCUSSION IN THE ATTACHMENT TO THE REFERENCED MEMORANDUM IS PREFERRED TO THE DISCUSSION OF FREQUENCY STABILITY CONTAINED IN THEIR PROPOSAL. NEITHER TREATMENT, HOWEVER, MENTIONED AN ERROR CONTAINED IN THE STABILITY SPECIFICATION WHEN THE LIMITS ARE APPLIED IN CALIBRATING HIGH IRIG CBW DISCRIMINATORS.

"III. MULTIPLEX AMPLIFIERS: "ELI PROPOSES THE USE OF ACTIVE SUMMING DEVICES (OPERATIONAL AMPLIFIERS) TO DRIVE EACH MULTIPLEX OUTPUT BUT THEY FAIL TO DISCUSS THE EFFECTS UPON MULTIPLEX OUTPUT LEVELS AS INDIVIDUAL SCO'S ARE ADDED TO OR REMOVED FROM THE MULTIPLEX. "ELI DOES NOT AGREE THAT IT SHOULD BE REQUIRED THAT THEY -... REVEAL ALL DETAILS RIGHT DOWN TO AND INCLUDING OUR DETAILED CIRCUIT SCHEMATICS, UNDER THE NORMAL RESTRICTIONS OF PROPRIETARY INFORMATION IN A PROPOSAL . THEIR PROPOSAL CONTAINED NOT ONE BONA FIDE SCHEMATIC DIAGRAM; ALL ACCEPTABLE PROPOSALS WERE AMPLY DETAILED. THEY ARE NOW READY TO REVEAL ALL-; THEY SHOULD HAVE DONE SO IN THEIR PROPOSAL.

"IV. FRONT PANEL CONTROLS: "ALTHOUGH NO RECORD OF AN INQUIRY CAN BE FOUND, ELI WAS APPARENTLY UNABLE TO OBTAIN CLARIFICATION OF SPECIFICATION PARAGRAPH 3.2.1, WHICH DEALS WITH OUTPUT LEVEL ADJUSTMENTS. A CAREFUL READING OF THIS AND RELATED PARAGRAPHS CONFIRMS THIS AS AN AREA OF POSSIBLE CONFUSION AND INDIVIDUAL INTERPRETATION. ALL ACCEPTABLE PROPOSALS DID RESPOND TO THE REQUIREMENT FOR INDIVIDUALLY ADJUSTABLE SCO- S. THESE OFFERORS INDICATED COMPLIANCE EITHER BY WRITTEN ACKNOWLEDGEMENT OR DETAILED SCHEMATIC DIAGRAM, OR BOTH.'

IT IS YOUR CONTENTION THAT THIS ENTIRE PROCUREMENT WAS HANDLED TOO HASTILY; AND THAT A SUFFICIENT TIME WAS NOT REALLY ALLOWED TO PREPARE A PROPOSAL AND PROVIDE A DEMONSTRATION CALIBRATOR MUCH LESS TO FORMULATE QUESTIONS AND SUBMIT THEM IN WRITING IN ORDER TO GET CLARIFICATION OF THE NASA SPECIFICATION. AS AN EXAMPLE, YOU STATE THAT THE PROCUREMENT OFFICE DID NOT RESPOND TO VARIOUS TELEPHONE INQUIRIES YOU MADE TO THEM SEEKING SPECIFICATION CLARIFICATIONS.

NASA DENIES THAT ANY REQUESTS FOR SPECIFICATION CLARIFICATION WERE IGNORED. IT DOES STATE THAT IN THE NORMAL COURSE IT WOULD REQUIRE THAT SIGNIFICANT REQUESTS FOR INFORMATION BE SUBMITTED IN WRITING.

AS STATED IN THE MAY 7 LETTER, IT WAS NASA'S INTENTION TO ISSUE STEP II ABOUT JUNE 15, 1968. IT WAS HOPED THAT THE FIRST SYSTEM WOULD BE DELIVERED ABOUT OCTOBER 15, 1968, WITH ONE UNIT EACH WEEK THEREAFTER. NASA REPORTS THAT THE FIRST MISSION TO UTILIZE THE CALIBRATORS IS THE APOLLO SATURN (AS) 503 MISSION SCHEDULED FOR THE SECOND QUARTER OF FISCAL YEAR 1969, AND THAT THE CALIBRATORS WILL BE USED TO CALIBRATE THE FM DISCRIMINATORS. IT IS NASA'S DESIRE TO HAVE AT LEAST SIX CALIBRATORS OPERATIONAL FOR THE AS-503 MISSION.

ACCORDINGLY, BIDDERS WERE GIVEN 21 DAYS TO PREPARE PROPOSALS (MAY 7 TO MAY 28, 1968). GSFC CONSIDERS THIS A SUFFICIENT TIME TO PREPARE A TECHNICAL PROPOSAL FOR THIS SYSTEM. IN THIS CONNECTION, WE NOTE THAT THE FIRST DELIVERY IS REQUIRED 120 DAYS AFTER AWARD. IT SEEMS REASONABLE TO EXPECT THAT A BIDDER WOULD BE ABLE TO PREPARE AN ACCEPTABLE PROPOSAL IN 21 DAYS FOR AN ITEM REQUIRED TO BE DELIVERED STARTING IN 120 DAYS.

NASA STATES THAT BIDDERS WERE REQUESTED BUT NOT REQUIRED TO SUPPLY A DEMONSTRATION CALIBRATOR. WE THINK IT WOULD HAVE BEEN BETTER TO HAVE ADVISED BIDDERS IN THE RFP THAT THE FURNISHING OF A SAMPLE UNIT WAS DESIRED ALONG WITH THE PROPOSALS AND TO HAVE SPELLED OUT IN THE RFP THE GROUND RULES REGARDING THE EVALUATION OF THE SAMPLE. BE THAT AS IT MAY, NASA STATES THAT THE CALIBRATOR YOU SUBMITTED WAS NOT THE CAUSE FOR REJECTING YOUR PROPOSAL.

THE RECORD SHOWS THAT YOUR PROPOSAL WAS DULY EVALUATED AND DETERMINED TO BE UNACCEPTABLE. YOU WERE THEN PROMPTLY NOTIFIED OF THE REJECTION. THIS POINT, THE PROCUREMENT OFFICIALS HAD NO DUTY TO CONSIDER FURTHER REVISIONS OF YOUR PROPOSAL. WE CALL YOUR ATTENTION TO NASA PROCUREMENT REGULATION 2.503-1, WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"/C) TECHNICAL EVALUATION OF THE PROPOSALS SHALL BE BASED UPON THE CRITERIA CONTAINED IN THE REQUEST FOR TECHNICAL PROPOSALS AND SUCH EVALUATION SHALL NOT INCLUDE CONSIDERATION OF CAPACITY OR CREDIT (SEE 1.705-6). UPON COMPLETION OF THE TECHNICAL EVALUATION, EACH PROPOSAL SHALL BE CATEGORIZED AS ACCEPTABLE OR UNACCEPTABLE. PROPOSALS SHALL NOT BE CATEGORIZED AS UNACCEPTABLE WHEN A REASONABLE EFFORT ON THE PART OF THE GOVERNMENT TO OBTAIN CLARIFICATION OR ADDITIONAL INFORMATION COULD BRING THE PROPOSALS TO AN ACCEPTABLE STATUS AND THUS INCREASE COMPETITION. THE CONTRACTING OFFICER SHALL ARRANGE FOR ANY NECESSARY DISCUSSIONS WITH SOURCES SUBMITTING TECHNICAL PROPOSALS. WHEN, AFTER DISCUSSION, CLARIFICATION, AND SUBMISSION OF NECESSARY DOCUMENTATION FOR INCORPORATION IN THE PROPOSAL, TECHNICAL PROPOSALS ARE DETERMINED TO BE ACCEPTABLE, THEY SHALL BE SO CATEGORIZED. IF, HOWEVER, IT IS DETERMINED AT ANY TIME THAT, A TECHNICAL PROPOSAL IS NOT REASONABLY SUSCEPTIBLE TO BEING MADE ACCEPTABLE, IT SHOULD BE CLASSIFIED AS UNACCEPTABLE AND FURTHER DISCUSSION OF IT IS UNNECESSARY.

"/D) UPON FINAL DETERMINATION THAT A TECHNICAL PROPOSAL IS UNACCEPTABLE, THE CONTRACTING OFFICER SHALL PROMPTLY NOTIFY THE SOURCE SUBMITTING THE PROPOSAL OF THAT FACT. THE NOTICE SHALL STATE THAT REVISION OF HIS PROPOSAL WILL NOT BE CONSIDERED, AND SHALL INDICATE, IN GENERAL TERMS, THE BASIS FOR THE DETERMINATION FOR EXAMPLE, THAT REJECTION WAS BASED ON FAILURE TO FURNISH SUFFICIENT INFORMATION OR ON AN UNACCEPTABLE ENGINEERING APPROACH.'

WE ARE NOT IN THE BEST POSITION TO JUDGE WHETHER YOUR PROPOSAL READILY COULD HAVE BEEN MADE ACCEPTABLE BY FURTHER DISCUSSIONS. THE ADMINISTRATIVE JUDGMENT MUST BE RELIED UPON IN THIS AREA. OUR COMMENTS IN B-164302 DATED JULY 11, 1968, INVOLVING A SIMILAR SITUATION ARE APPLICABLE HERE:

"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 SUSCEPTIBLEOF 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.'

ON THE RECORD BEFORE US WE FIND NO BASIS TO QUESTION THE REJECTION OF YOUR STEP 1 PROPOSAL. ACCORDINGLY, YOUR PROTEST IS DENIED.