B-165457, MAR. 18, 1969

B-165457, MAR. 18, 1969

TO PARZEN RESEARCH, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 17 AND DECEMBER 5, 1968, PROTESTING THE REJECTION OF YOUR TECHNICAL PROPOSAL SUBMITTED UNDER REQUEST FOR PROPOSALS NO. N00039-68-R-0093, ISSUED BY THE NAVAL ELECTRONIC SYSTEMS COMMAND, WASHINGTON, D.C., AND REQUESTING DELAY OF THE PROCUREMENT UNTIL YOU ARE AFFORDED AN OPPORTUNITY TO SUBMIT A BID THEREON.

THIS PROCUREMENT WAS INITIATED BY THE ISSUANCE OF A LETTER REQUEST FOR UNPRICED TECHNICAL PROPOSALS (LRFUTP) ON FEBRUARY 14, 1968, AS THE FIRST STEP OF A TWO-STEP PROCUREMENT WITH A CLOSING DATE FOR RECEIPT OF PROPOSALS ON MARCH 15, 1968. THE LRFUTP STATED THAT THE NAVY ANTICIPATED A REQUIREMENT OF 19 TRANSMITTING MULTICOUPLERS, AND INVITED THE SUBMISSION OF TECHNICAL PROPOSALS, DESCRIBING THE TRANSMITTING MULTICOUPLER THE OFFEROR PROPOSED TO SUPPLY AND SETTING FORTH THE COMPLETE TECHNICAL METHOD AND ENGINEERING APPROACH THAT THE OFFEROR PROPOSED TO MEET THE GOVERNMENT'S REQUIREMENTS AS STATED IN A PURCHASE DESCRIPTION ATTACHED.

FIRST-STEP PROPOSALS WERE RECEIVED FROM FOUR FIRMS, INCLUDING PARZEN AND SHIVELY LABORATORIES. A TECHNICAL REVIEW BOARD WAS ESTABLISHED BY THE NAVY TO EVALUATE THE PROPOSALS AS RECEIVED AGAINST THE STATED REQUIREMENTS OF THE REQUEST FOR PROPOSALS. A STATEMENT OF THE CRITERIA FOR GOVERNMENT EVALUATION OF TECHNICAL PROPOSALS WAS SET FORTH UNDER PARAGRAPH A.3,"GENERAL INSTRUCTIONS," OF THE REQUIREMENTS AND CRITERIA ATTACHED TO THE REQUEST, AS FOLLOWS: "THE TECHNICAL PROPOSAL SHALL BE SO DETAILED, SPECIFIC AND COMPLETE AS TO ENABLE GOVERNMENT ENGINEERING PERSONNEL TO MAKE A THOROUGH EVALUATION OF THE PROPOSED EQUIPMENT AND A SOUND DETERMINATION THAT THE PROPOSED EQUIPMENT WILL HAVE A REASONABLE LIKELIHOOD OF MEETING THE REQUIREMENTS OF THE GOVERNMENT AS SET FORTH IN THE PURCHASE DESCRIPTION. THE TECHNICAL PROPOSAL SHALL CLEARLY AND FULLY DEMONSTRATE THAT THE OFFEROR HAS A VALID AND PRACTICAL DESIGN AND ENGINEERING SOLUTION TO THE TECHNICAL PROBLEMS INHERENT IN THE DESIGN AND ENGINEERING OF EQUIPMENT MEETING THE REQUIREMENTS OF THE PURCHASE DESCRIPTION. TO THIS END, THE TECHNICAL PROPOSAL SHALL EXPLAIN WHY THE PROPOSED DESIGN, INCLUDING TECHNICAL METHODS AND ENGINEERING APPROACH, WAS SELECTED AS THE SOLUTION OF SUCH PROBLEMS. STATEMENTS TO THE EFFECT THAT THE OFFEROR UNDERSTANDS, CAN OR WILL COMPLY WITH THE SPECIFICATIONS, PARAPHRASES OF THE PURCHASE DESCRIPTION IN WHOLE OR ON PART, PHRASES SUCH AS STANDARD PROCEDURES WILL BE USED- OR -WELL KNOWN TECHNIQUES WILL BE UTILIZED,- AND GENERALITIES OF TEXTBOOK THEORIES AND TECHNIQUES WILL NOT CONSTITUTE COMPLIANCE WITH THESE REQUIREMENTS CONCERNING THE CONTENT OF THE TECHNICAL PROPOSAL. ON THE OTHER HAND, ELABORATE FORMAT, COVERS AND BINDERS AND -PRETTINESS' ARE NEITHER NECESSARY NOR DESIRED. IT IS ESSENTIAL THAT THE TECHNICAL PROPOSAL SHALL SET FORTH THE OFFEROR'S PROPOSED DESIGN, INCLUDING HIS SPECIFIC APPLICATION OF STATE-OF-THE-ART- SCIENTIFIC THEORY AND ENGINEERING TECHNIQUES, WITH SUFFICIENT PARTICULARITY TO PERMIT THE GOVERNMENT TO MAKE THE EVALUATION AND DETERMINATION REFERRED TO ABOVE. DATA PREVIOUSLY SUBMITTED, IF ANY, MAY NOT BE CONSIDERED BY THE GOVERNMENT; HENCE, ANY SUCH DATA SHOULD NOT BE RELIED UPON OR INCORPORATED IN THE TECHNICAL PROPOSAL SOLELY BY REFERENCE.'

MEMBERS OF THE TECHNICAL REVIEW BOARD WERE DIRECTED TO INDICATE WHETHER A PROPOSAL SHOULD BE PLACED IN ONE OF THREE CATEGORIES: (1) ACCEPTABLE IN ITS ENTIRETY; (2) NOT ACCEPTABLE BUT REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE; AND (3) NOT ACCEPTABLE AND NOT REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE. NONE OF THE PROPOSALS WAS PLACED IN THE FIRST CATEGORY. THE PROPOSALS OF GRANGER ASSOCIATES AND COLLINS RADIO WERE PLACED IN CATEGORY (2), AND THOSE OF SHIVELY LABORATORIES AND PARZEN IN CATEGORY (3). IN SUPPORT OF THAT DETERMINATION, REGARDING YOUR PROPOSAL, THE BOARD REFERENCED THE REQUIREMENTS IN PARAGRAPH A.3 QUOTED ABOVE AND DETERMINED THAT IN SIGNIFICANT AREAS YOUR PROPOSAL INDICATED THAT A PRACTICAL DESIGN WOULD BE ARRIVED AT ONLY AFTER CONTRACT AWARD AND AFTER CONSIDERABLE DESIGN EFFORT. IT FURTHER DECIDED THAT IT WOULD NOT BE BENEFICIAL TO REQUEST YOUR COMPANY TO SUBMIT ADDITIONAL INFORMATION WHICH THE PROPOSAL INDICATED COULD NOT BE ARRIVED AT WITHOUT CONSIDERABLE POST AWARD DESIGN EFFORT. THE BOARD CONCLUDED THAT CLARIFYING OR SUPPLEMENTAL INFORMATION OF THE TYPE NECESSARY TO MAKE THE DESIGN SPECIFIC IN THE DEFICIENT AREAS UNDER THE CIRCUMSTANCES OF THIS PROCUREMENT WOULD AMOUNT TO A BASIC CHANGE IN THE PROPOSAL AS SUBMITTED.

SPECIFICALLY, THE BOARD FOUND THAT THE FOLLOWING QUOTATIONS FROM YOUR PROPOSAL WERE SUBJECT ONLY TO THE CONCLUSION THAT THE METHOD OF COOLING, A MOST IMPORTANT DESIGN CONSIDERATION, HAD NOT BEEN FINALIZED. PARAGRAPH 3.3.3 MAINTAINABILITY

"THE EQUIPMENT-REPAIR-TIME (ERT) OF THIS MULTICOUPLER, AS DEFINED BY MIL- STD-471, IS LESS THAN 30 MINUTES PROVIDED THAT A LIQUID IS NOT USED AS THE COOLING MEDIUM, AND IS ESTIMATED TO BE JUST 30 MINUTES IF IT IS NECESSARY TO USE OIL. * * *" PARAGRAPH 3.11.3.3 COMPONENT RATINGS AT PAGE 36 OF YOUR PROPOSAL.

"* * * SUCH CARE WILL BE TAKEN IN THE DESIGN AND THOUGHT HAS BEEN GIVEN TO FILLING THE MULTICOUPLERS WITH OIL ALTHOUGH A DESIGN WHICH AVOIDS THIS WILL BE ATTEMPTED IN ORDER TO INCREASE MAINTAINABILITY PROVIDED WE CAN ACHIEVE THIS GOAL AT NO SACRIFICE OF RELIABILITY.' PARAGRAPH 3.12 MAINTENANCE DESIGN

"* * * THE MAINTAINABILITY PROBLEM CAN BE FURTHER COMPLICATED IF DETAILED DESIGN WORK SHOWS THAT INSULATING OIL MUST BE USED. * * *" PARAGRAPH 3.13 MECHANICAL DESIGN

"* * * ALL INTERNAL SHIELDS WILL BE OF PERFORATED METAL WHERE PRACTICAL, AND WHERE NOT PRACTICAL WILL HAVE PERFORATED SECTIONS MOUNTED IN THEM TO MINIMIZE THE OBSTRUCTION TO THE FULL FLOW OF AIR OR OIL, AND THUS MAXIMIZE THE REMOVAL OF INTERNALLY GENERATED HEAT. * * *" PARAGRAPH 3.13.2.1 ENCLOSURE SIZE AND WEIGHT

"* * * PRELIMINARY CALCULATIONS SHOW THAT THESE SIZE AND WEIGHT LIMITATIONS OFFER NO BASIC DESIGN PROBLEMS. AT THE SAME TIME, THESE CALCULATIONS SHOW THAT BECAUSE OF THE WEIGHT LIMITATIONS THE TYPE I COUPLERS DEFINITELY CANNOT USE OIL. * * *"

CONCERNING THE FINAL QUOTATION, THE NAVY REPORTS THAT THE PRELIMINARY NATURE OF THE CALCULATIONS IS EMPHASIZED BY THE FACT THAT IT HAS PROCURED OFF-THE-SHELF OIL FILLED MULTICOUPLERS RATED AT 10 KW AS REQUIRED IN THE PURCHASE DESCRIPTION, HAVING WEIGHT AND DIMENSIONS APPROXIMATELY THE SAME AS THOSE CALLED FOR IN THIS PROCUREMENT.

SIMILARLY, THE BOARD FOUND THAT AS TO THE FILTER DESIGN, ANOTHER IMPORTANT DESIGN AREA, THE PROPOSAL EXPRESSED WHAT APPEARED TO BE A PRELIMINARY DESIGN AND SUGGESTED A LACK OF CONFIDENCE IN ITS OWN DESIGN. SPECIFICALLY AT PARAGRAPH 3.11.3.1 COMPONENT VALUES YOUR PROPOSAL STATES IN PART AT PAGE 29:

"* * * AN EXAMINATION OF THE ELEMENT VALUES OF FIGURE 4 SHOWN THAT ALL ARE PRACTICALLY REALIZABLE. THE ONLY ONES POSSIBLY CREATING ANY PROBLEMS ARE THE APPROXIMATELY 3000 PF CAPACITORS OF FIGURE 4A AND THE .08 PH COILS OF FIGURE 4B. THE 3000 PF CAPACITORS ARE A LITTLE LARGE IN VALUE FOR THE HIGHER VOLTAGE RATING VACUUM VARIABLE AND IT MIGHT BE NECESSARY TO USE A FIXED PADDER ACROSS THE VARIABLE CAPACITOR FOR CAPACITY VALUES GREATER THAN 1500 TO 2000 PF. THIS IS TO BE AVOIDED, AND WILL BE, IF POSSIBLE BECAUSE OF THE INCREASED LOSSES INTRODUCED THEREBY. THE .08 PH COILS ARE REALIZABLE BUT OFFER SOME POTENTIAL PROBLEMS IN TERMS OF REPRODUCIBILITY, I.E. TOLERANCE.'

ALSO AT PARAGRAPH 3.11.3.2 COMPONENT TOLERANCES AT PAGE 34 IT IS STATED:

"* * * THUS THOUGH THE TOLERANCES ARE TIGHT THEY ARE ACHIEVABLE. FURTHER, OUR EXPERIENCE WITH OTHER EQUIPMENT INDICATES THAT THE REQUIRED TUNING TOLERANCES SHOULD BE READILY MAINTAINABLE THRU SHOCK AND VIBRATION TESTS. OF COURSE, IN THE PROCESS OF DESIGN CONSIDERABLE FURTHER CALCULATION AND EXPERIMENTATION WITH REGARD TO THE COMPONENT TOLERANCES WILL BE CARRIED OUT TO ASSUME THE MINIMUM COMPLEXITY OF DESIGN AND COST OVER THE RANGE OF MULTICOUPLERS.'

IN ADDITION, THE BOARD FELT THE APPLICABILITY OF INDIVIDUAL REFERENCED PARAGRAPHS OF MIL-E-16400 SHOULD HAVE BEEN DISCUSSED AT PARAGRAPHS 3.11, 3.13, AND 3.15 TO INDICATE THE APPLICABILITY OF THESE PARAGRAPHS TO THE EQUIPMENT.

ESSENTIALLY, THE GROUNDS FOR YOUR PROTEST ARE: (1) THAT YOUR PROPOSAL SHOULD HAVE BEEN FOUND AT THE VERY LEAST REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE; (2) THE CONTRACTING OFFICER VIOLATED THE REQUIREMENTS OF SECTION 2-503.1 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) IN NOT PROMPTLY NOTIFYING YOUR COMPANY OF THE DETERMINATION REACHED UNDER STEP 1; (3) THE NAVY'S REFUSAL TO GIVE YOUR COMPANY A DEBRIEFING AFTER STEP 1, AND BEFORE THE OPENING OF BIDS UNDER STEP 2, IS A VIOLATION OF DUE PROCESS OF LAW; AND (4) NAVY'S REFUSAL TO FURNISH YOU A COPY OF THE SOLICITATION UNDER STEP 2 IS A VIOLATION OF THE PUBLIC INFORMATION ACT, PUBLIC LAW 89-487, AMENDING 5 U.S.C. 1002.

CONCERNING YOUR FIRST CONTENTION, YOU MAINTAIN THAT THE BOARD'S FINDINGS, MENTIONED ABOVE, TO THE EFFECT THAT A PRACTICAL DESIGN WOULD BE ARRIVED AT ONLY AFTER CONTRACT AWARD AND AFTER CONSIDERABLE DESIGN EFFORT IS NOT A VALID OBJECTION FOR AWARDING CONTRACTS UNDER THIS TYPE OF SOLICITATION, AND THAT YOUR COMPANY DID PRESENT A PRACTICAL DESIGN. IN PARAGRAPH 2-501 OF ASPR, TWO-STEP FORMAL ADVERTISING IS DESCRIBED AS A FLEXIBLE PROCEDURE ESPECIALLY USEFUL IN THE PROCUREMENT OF COMPLEX ITEMS REQUIRING TECHNICAL PROPOSALS. CONFORMITY TO THE TECHNICAL REQUIREMENTS IS RESOLVED IN STEP ONE, WHICH INCLUDES THE EVALUATION AND, IF NECESSARY, DISCUSSION OF TECHNICAL PROPOSALS TO DETERMINE THEIR ACCEPTABILITY. SUCH METHOD REQUIRES THAT THE CONTRACTING OFFICER WORK CLOSELY WITH TECHNICAL PERSONNEL AND THAT HE UTILIZE THEIR SPECIALIZED KNOWLEDGE IN DETERMINING THE TECHNICAL REQUIREMENTS OF THE PROCUREMENT, IN DETERMINING THE CRITERIA TO BE USED IN EVALUATING TECHNICAL PROPOSALS, "AND IN MAKING SUCH EVALUATION.' TECHNICAL EVALUATION OF A PROPOSAL IS REQUIRED TO BE BASED UPON THE CRITERIA CONTAINED IN THE LRFUTP, AND THE CITED REGULATION CLEARLY STATES THAT A PROPOSAL WHICH MODIFIES, OR FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OR SPECIFICATIONS OF THE LRFUTP SHALL BE CONSIDERED NONRESPONSIVE AND CATEGORIZED AS UNACCEPTABLE.

WE VIEW THE ABOVE PROVISIONS AS INVESTING IN THE TECHNICAL AND PROCUREMENT PERSONNEL CHARGED WITH THIS PROCUREMENT CONSIDERABLE LATITUDE IN FRAMING THE REQUIREMENTS TO BE MET BY PROPOSALS AND IN THEIR EVALUATION. RESPONSIBILITY FOR THE DETERMINATION OF THE ACCEPTABILITY OF TECHNICAL PROPOSALS IS VESTED IN THE PROCUREMENT AGENCY, WHICH IS BEST QUALIFIED TO EVALUATE THEM, AND, IN ACCORDANCE WITH WELL ESTABLISHED PRECEDENTS, WE WILL NOT QUESTION ITS DETERMINATION. 40 COMP. GEN. 35. WHETHER A PROPOSAL NEEDS CLARIFICATION TO BE DEEMED ACCEPTABLE, WHETHER A PROPOSAL CAN BE MADE ACCEPTABLE BY CLARIFICATION AND REASONABLE EFFORT BY THE GOVERNMENT, HOW MANY OR HOW FEW LETTERS OF CLARIFICATION MAY BE ADDRESSED TO A PROPOSER, ARE ALL MATTERS OF JUDGMENT ON THE PART OF THE PROCUREMENT AGENCY, WHICH WE WILL NOT QUESTION UNLESS THERE IS EVIDENCE OF FRAUD, PREJUDICE, ABUSE OF AUTHORITY, ARBITRARINESS OR CAPRICIOUS ACTION. NO SUCH EVIDENCE APPEARS IN THIS CASE, NOR IS THERE ANY ALLEGATION TO THAT EFFECT. FROM OUR READING OF THE STATED REQUIREMENTS OF STEP ONE AND YOUR PROPOSAL, WE THINK THERE IS SUBSTANTIAL GROUND FOR THE BOARD'S FINDING, STATED IN THE ADMINISTRATIVE REPORT AS FOLLOWS:

"IN SUMMARY THE PARZEN PROPOSAL APPEARS TO HAVE BEEN BASED ON AN ASSUMPTION THAT THE REQUEST FOR PROPOSALS WAS ANTICIPATING A CONTRACT FOR RESEARCH AND DEVELOPMENT OF A MULTICOUPLER MEETING THE REQUIREMENTS OF THE PURCHASE DESCRIPTION WHILE IN FACT THE STATED PURPOSE WAS TO OBTAIN TECHNICAL PROPOSALS EMBODYING A PRACTICAL MULTICOUPLER DESIGN, HAVING A REASONABLE LIKELIHOOD OF MEETING THE REQUIREMENTS. * * *"

WITH REGARD TO YOUR COMPLAINT THAT YOUR COMPANY WAS NOT PROMPTLY NOTIFIED OF THE NON-ACCEPTABILITY OF YOUR PROPOSAL, THE RECORD DOES REFLECT THAT THERE WAS A LAPSE OF 11 DAYS BETWEEN THE NOTIFICATION TO THE COMMERCE BUSINESS DAILY CONCERNING THE SECOND STEP OF THE TWO-STEP AND THE LETTER ADVISING YOU OF THE UNACCEPTABILITY OF THE PROPOSAL. WHILE IT IS REGRETTABLE THAT YOU WERE NOT SOONER NOTIFIED OF THE ACTION TAKEN BY THE BOARD, WE FAIL TO SEE HOW THIS LAPSE OF TIME PREJUDICED YOUR FIRM, SINCE YOU WERE ULTIMATELY ADVISED BY BOTH COMMUNICATIONS THAT YOUR PROPOSAL WAS UNACCEPTABLE.

AS TO YOUR THIRD CONTENTION THAT YOU WERE NOT PROMPTLY AFFORDED A DEBRIEFING, THE ADMINISTRATIVE REPORT STATED,"IT WAS CONSIDERED TO BE UNTIMELY TO CONDUCT SUCH A DEBRIEFING UNTIL THE AWARD UNDER THE TWO STEP HAD BEEN CONCLUDED. A FORMAL DEBRIEFING WILL BE CONDUCTED SUBSEQUENT TO THE AWARD UNDER THE SECOND STEP. THIS IS THE CUSTOMARY PROCEDURE WHICH HAS BEEN FOLLOWED IN THE NAVAL ELECTRONIC SYSTEMS COMMAND IN SIMILAR SITUATIONS.' WHILE THERE MAY BE MERIT TO YOUR OBSERVATION THAT A DEBRIEFING GIVEN AFTER THE AWARD OF THE SECOND STEP IS AFTER THE FACT, IT IS WELL SETTLED THAT STATUTES WHICH REQUIRE PURCHASES TO BE MADE AFTER ADVERTISING FOR BIDS WERE ENACTED FOR THE BENEFIT OF THE UNITED STATES AND NOT FOR BIDDERS, AND THE COURTS HAVE CONSISTENTLY HELD THAT BIDDERS HAVE NO ENFORCEABLE RIGHTS IN THE EVENT THEIR BIDS ARE NOT ACCEPTED. SEE PERKINS V LUKENS STEEL COMPANY, 310 U.S. 113; COLORADO PAVING COMPANY V MURPHY, 78 F. 28. IT IS OUR VIEW THAT AN UNSUCCESSFUL BIDDER OR OFFEROR HAS NO STATUTORY OR REGULATORY RIGHT TO BE DEBRIEFED IN THE FORMAL SENSE AT ANY TIME. ALL THAT IS REQUIRED BY THE REGULATIONS IN THIS INSTANCE IS THAT AN UNSUCCESSFUL OFFEROR BE PROMPTLY NOTIFIED OF THE DETERMINATION REACHED IN THE FIRST STEP AND THE BASIS FOR THE DETERMINATION. (ASPR 2- 503.1 (F) ). YOU WERE SO NOTIFIED, ALBEIT SOMEWHAT LATE, AND BY YOUR INSTANT PROTEST YOU HAVE IN ESSENCE BEEN AFFORDED A FORMAL DEBRIEFING. DEBRIEFING IN PROCUREMENTS SIMILAR TO THE ONE AT HAND IS A PROCEDURE PRACTICED BY THE PROCURING AGENCIES TO BENEFIT BOTH PARTIES SO THAT IN FUTURE PROCUREMENTS INVOLVING SIMILAR REQUIREMENTS THE PARTIES WILL KNOW MORE CLEARLY WHAT WILL BE ACCEPTABLE. WE THINK SUCH A PROCEDURE IS HELPFUL AND SHOULD BE ENCOURAGED, BUT IN THE INSTANT CASE, WE FIND NO BASIS FOR HOLDING THAT THE FAILURE OF THE NAVY TO AFFORD YOU AN OPPORTUNITY TO BE FORMALLY DEBRIEFED COULD INVALIDATE FURTHER ACTION IN THE PROCUREMENT. IN FACT, AS WE READ THE REGULATIONS, A FINDING OF UNACCEPTABILITY OF A PROPOSAL UNDER THE FIRST STEP PRECLUDES THE PROCURING AGENCY FROM HOLDING ANY CONFERENCES WITH THE UNSUCCESSFUL OFFERORS LOOKING TO FURTHER PARTICIPATION IN THE SAME PROCUREMENT. ASIDE FROM THIS REGULATORY PROHIBITION, AS A PRACTICAL MATTER, THE TIME FACTOR ALONE WOULD ORDINARILY DICTATE AGAINST HOLDING DEBRIEFING SESSIONS WITH UNSUCCESSFUL OFFERORS UNDER THE FIRST STEP WHILE THE PROCURING ACTIVITY ATTEMPTED TO COMPLETE ITS EVALUATION OF OFFERS UNDER THE SECOND STEP. CONSEQUENTLY, WE SEE NO OBJECTION TO THE NAVY'S POSTPONEMENT OF SUCH DEBRIEFING UNTIL AFTER THE SECOND STEP.

THE FOURTH CONTENTION ADVANCED IN YOUR PROTEST IS THAT THE NAVY'S FAILURE TO FURNISH YOU A COPY OF THE BID SET UNDER STEP TWO WAS A VIOLATION OF THE PUBLIC INFORMATION ACT. ASPR 2-503.2 (I) PRECLUDES THE ISSUANCE OF AN INVITATION FOR BIDS UNDER STEP TWO TO THOSE SOURCES WHICH HAVE BEEN FOUND UNSUCCESSFUL IN STEP ONE. WHILE AN OFFEROR FOUND UNACCEPTABLE UNDER STEP ONE OF A TWO-STEP PROCUREMENT MAY BE ENTITLED TO SEE AND HAVE A COPY OF THE SOLICITATION UNDER STEP TWO, IT IS NOT ENTITLED UNDER THE REGULATIONS TO SUBMIT IT OR HAVE IT ACCEPTED IF SUBMITTED. WE HAVE BEEN INFORMED THAT THIS ISSUE HAD NOT BEEN RAISED BY YOU UNTIL THE FILING OF YOUR PROTEST, AND HAD YOU REQUESTED A BID SET YOU WOULD HAVE BEEN FURNISHED ONE WITH THE ADVICE THAT YOU WERE NOT ENTITLED TO SUBMIT IT. IN ANY EVENT, WE ARE NOT AUTHORIZED TO DECIDE WHAT RECORDS OR INFORMATION MUST BE MADE AVAILABLE BY OTHER AGENCIES UNDER THE PUBLIC INFORMATION ACT.

YOU ALSO QUESTION WHY THE NAVAL ELECTRONIC SYSTEMS COMMAND PROCURED THESE ITEMS UNDER A TWO-STEP PROCUREMENT WHILE THE NAVAL SUPPLY CENTER OF OAKLAND, CALIFORNIA, IS PROCURING AN ADDITIONAL QUANTITY OF THESE ITEMS UNDER A BRAND NAME OR EQUAL CLAUSE. THE ADMINISTRATIVE COMMENTS ON THIS POINT ARE AS FOLLOWS:

"WITH REGARD TO THE ALLEGATION THAT SIMILAR MULTICOUPLERS ARE BEING PROCURED BY THE NAVAL SUPPLY CENTER, OAKLAND, CALLIFORNIA, IT HAS BEEN ASCERTAINED THAT THE NAVAL SUPPLY CENTER, IS PURCHASING MULTICOUPLERS ON A GRANGER MODEL OR EQUAL BASIS WHICH IN PART CORRESPOND TO THOSE WHICH GRANGER HAS DESCRIBED IN ITS PROPOSAL IN RESPONSE TO THE TWO STEP FORMAL ADVERTISING. THE NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, IS EFFECTING THAT PROCUREMENT ON BEHALF OF THE NAVAL SHIP ENGINEERING ACTIVITY, PACIFIC. BASED ON AN -02- PRIORITY ASSIGNED TO THAT PROCUREMENT, TIME WOULD NOT PERMIT THE ADDITION OF THOSE REQUIREMENTS TO THOSE PRESENTLY INCLUDED IN THE TWO STEP FORMAL ADVERTISING.

"* * * THAT PROCUREMENT WAS NEGOTIATED WITH GRANGER ASSOCIATES UNDER THE AUTHORITY OF 10 U.S.C. 2304 (A) (2), BASED ON THE FACT THAT THE PUBLIC EXIGENCY WOULD NOT PERMIT THE DELAY INCIDENT TO ADVERTISING. ANOTHER DISTINGUISHING FACTOR IS THAT IN THE NAVELEX PROCUREMENT, FIELD REPARABILITY WAS A SPECIFICATION REQUIREMENT FOR THE FIRST TIME.'

WE PERCEIVE NO BASIS IN THIS EXPLANATION FOR QUESTIONING THE PROPRIETY OF THE ACTION TAKEN, AND WE ARE UNABLE TO SEE ANY REASON WHY SUCH ACTION WAS PREJUDICIAL TO YOU.

FOR THE FOREGOING REASONS, YOUR PROTEST AGAINST THE SUBJECT PROCUREMENT IS DENIED.