B-167833(2), NOV. 25, 1969

B-167833(2): Nov 25, 1969

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PROTEST TO EVALUATION TEAMS DETERMINATION THAT PROPOSAL WAS UNACCEPTABLE FOR FAILURE TO COMPLY WITH WEIGHT LIMITATION AND TO STATE COMPLIANCE WITH RF PULSE SPECTRUM REQUIREMENT IS DENIED SINCE QUESTION WHETHER TECHNICAL PROPOSALS ARE DEFICIENT AND WHETHER DEFICIENT TECHNICAL PROPOSALS ARE REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE ARE MATTERS REQUIRING JUDGMENT AND EXPERTISE OF TECHNICALLY QUALIFIED PERSONNEL AND GAO WILL NOT QUESTION AGENCY ACTION UNLESS CLEARLY SHOWN TO BE ARBITRARY. INC.: REFERENCE IS MADE TO YOUR PROTEST AGAINST THE REJECTION OF YOUR COMPANY'S TECHNICAL PROPOSAL SUBMITTED UNDER AIR FORCE REQUEST FOR PROPOSALS NO. THE LETTER REQUEST FOR TECHNICAL PROPOSALS (LRTP) WAS ISSUED ON APRIL 22.

B-167833(2), NOV. 25, 1969

NEGOTIATION--TWO-STEP PROCUREMENT--TECHNICAL PROPOSAL ACCEPTABILITY UNDER LETTER REQUEST FOR TECHNICAL PROPOSALS ISSUED AS FIRST STEP OF TWO- STEP PROCUREMENT FOR DESIGN AND FABRICATION OF TEST SETS, PROTEST TO EVALUATION TEAMS DETERMINATION THAT PROPOSAL WAS UNACCEPTABLE FOR FAILURE TO COMPLY WITH WEIGHT LIMITATION AND TO STATE COMPLIANCE WITH RF PULSE SPECTRUM REQUIREMENT IS DENIED SINCE QUESTION WHETHER TECHNICAL PROPOSALS ARE DEFICIENT AND WHETHER DEFICIENT TECHNICAL PROPOSALS ARE REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE ARE MATTERS REQUIRING JUDGMENT AND EXPERTISE OF TECHNICALLY QUALIFIED PERSONNEL AND GAO WILL NOT QUESTION AGENCY ACTION UNLESS CLEARLY SHOWN TO BE ARBITRARY, CAPRICIOUS OR MADE IN BAD FAITH.

TO LTV ELECTROSYSTEMS, INC.:

REFERENCE IS MADE TO YOUR PROTEST AGAINST THE REJECTION OF YOUR COMPANY'S TECHNICAL PROPOSAL SUBMITTED UNDER AIR FORCE REQUEST FOR PROPOSALS NO. F33657-69-R-0715, ISSUED BY HEADQUARTERS AERONAUTICAL SYSTEMS DIVISION, WRIGHT-PATTERSON AIR FORCE BASE, OHIO.

THE LETTER REQUEST FOR TECHNICAL PROPOSALS (LRTP) WAS ISSUED ON APRIL 22, 1969, AS THE FIRST STEP OF A TWO-STEP PROCUREMENT FOR THE DESIGN AND FABRICATION OF EIGHT TEST SETS, TACAN AN/ARM-135, IN ACCORDANCE WITH EXHIBIT ASNMT 68-112, DATED JANUARY 21, 1969, AND 91 PRODUCTION SETS WITH DATA AND SPARE PARTS. THE LRTP CONTAINED THE FOLLOWING PROVISIONS:

"7. IT IS STRONGLY URGED THAT THE REQUIREMENTS FOR THE TECHNICAL PROPOSALS SET FORTH IN ATTACHMENT NO. 3 HEREOF BE STRICTLY COMPLIED WITH AND COMPLETE IN ALL RESPECTS. DO NOT RELY ON DATA PREVIOUSLY SUBMITTED BEING GIVEN ANY CONSIDERATION. OFFERORS ARE ADVISED TO SUBMIT PROPOSALS WHICH ARE FULLY AND CLEARLY ACCEPTABLE WITHOUT ADDITIONAL EXPLANATION OF INFORMATION, SINCE 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 FROM ANY OFFEROR. HOWEVER, IF THE GOVERNMENT DEEMS IT NECESSARY TO OBTAIN SUFFICIENT ACCEPTABLE PROPOSALS TO ASSURE ADEQUATE PRICE COMPETITION IN THE SECOND STEP OR DEEMS IT OTHERWISE DESIRABLE IN ITS BEST INTEREST, THE GOVERNMENT MAY, IN ITS SOLE DISCRETION, REQUEST ADDITIONAL INFORMATION FROM OFFERORS OF PROPOSALS WHICH THE GOVERNMENT CONSIDERS REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE BY ADDITIONAL INFORMATION CLARIFYING OR SUPPLEMENTING BUT NOT BASICALLY CHANGING ANY PROPOSALS AS SUBMITTED AND, FOR THIS PURPOSE, THE GOVERNMENT MAY DISCUSS ANY SUCH PROPOSAL WITH THE OFFEROR."

"11. IT IS NOW ANTICIPATED THAT INVITATION FOR BIDS WILL BE ISSUED ON OR ABOUT 30 JULY 1969 ONLY TO THOSE BIDDERS WHOSE TECHNICAL PROPOSALS ARE ACCEPTABLE ON THAT DATE. NO OTHER FIRMS WILL BE GIVEN AN OPPORTUNITY TO BID. IN THE SECOND STEP OF THE PROCUREMENT, ONLY BIDS BASED UPON TECHNICAL PROPOSALS DETERMINED TO BE ACCEPTABLE, EITHER INITIALLY OR AS A RESULT OF DISCUSSIONS, WILL BE CONSIDERED FOR AWARD, AND EACH BID IN THE SECOND STEP MUST BE BASED ON THE BIDDER'S OWN TECHNICAL PROPOSAL. FIRMS WHOSE TECHNICAL PROPOSALS ARE NOT ACCEPTABLE WILL BE NOTIFIED UPON THE COMPLETION OF THE TECHNICAL EVALUATION OF SUCH PROPOSALS AND THE FINAL DETERMINATION OF UNACCEPTABILITY."

A PREPROPOSAL BRIEFING WAS HELD ON MAY 2, 1969. GOVERNMENT PERSONNEL EXPLAINED THE REQUIREMENTS AT THE BRIEFING OF THE LRTP AND PROVIDED OFFERORS WITH AN OPPORTUNITY TO POSE QUESTIONS REGARDING THE PROCUREMENT.

SEVEN PROPOSALS WERE RECEIVED AND PROMPTLY FORWARDED TO AN ENGINEERING TEAM FOR EVALUATION AND CLASSIFICATION IN COMPLIANCE WITH PARAGRAPH 2- 503.1 (E) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WHICH STATES:

"(E) * * * THE PROPOSALS AS SUBMITTED, SHALL BE CATEGORIZED AS:

"(I) ACCEPTABLE;

"(II) REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE BY ADDITIONAL INFORMATION CLARIFYING OR SUPPLEMENTING, BUT NOT BASICALLY CHANGING THE PROPOSAL AS SUBMITTED; OR

"(III) IN ALL OTHER CASES, UNACCEPTABLE." ON JULY 28, 1969, THE EVALUATION TEAM CONCLUDED THAT THREE PROPOSALS WERE MARGINALLY ACCEPTABLE AND FOUR PROPOSALS, INCLUDING YOUR COMPANY'S, WERE UNACCEPTABLE. LETTER DATED AUGUST 14, 1969, THE CONTRACTING OFFICER ADVISED YOUR FIRM THAT ITS PROPOSAL WAS UNACCEPTABLE IN THAT IT HAD FURNISHED INSUFFICIENT DATA AND/OR FAILED TO CONFORM TO THE ESSENTIAL REQUIREMENTS AND SPECIFICATIONS OF THE LRTP IN ACCORDANCE WITH ASPR 2 503.1 (E). THE LETTER LISTED THE VARIOUS AREAS IN WHICH THE PROPOSAL WAS FOUND TO BE UNACCEPTABLE. A DEBRIEFING MEETING WAS HELD ON SEPTEMBER 3, 1969, WHEREIN THE REASONS FOR THE REJECTION OF THE PROPOSAL WERE EXPLAINED AND ADVICE WAS FURNISHED THAT REVISION OF THE PROPOSAL WOULD NOT BE ALLOWED. SUBSEQUENTLY, DISCUSSIONS WERE CONDUCTED WITH THE THREE FIRMS WHICH SUBMITTED MARGINALLY ACCEPTABLE PROPOSALS. THE DISCUSSIONS RESULTED IN THE SUBMISSION OF REVISED PROPOSALS, DETERMINED TO BE ACCEPTABLE BY THE CONTRACTING OFFICER ON SEPTEMBER 12, 1969. WE ARE ADVISED THAT THE INVITATION FOR BIDS, THE SECOND STEP OF THE PROCUREMENT, WILL BE ISSUED TO THE THREE FIRMS DETERMINED TO HAVE SUBMITTED ACCEPTABLE PROPOSALS IN THE NEAR FUTURE.

THE AIR FORCE EVALUATING TEAM FOUND YOUR PROPOSAL TO BE UNACCEPTABLE FOR TWO REASONS, WHICH COINCIDE WITH THE PRINCIPAL GROUNDS FOR THE PROTEST: (1) FAILURE TO COMPLY WITH THE WEIGHT LIMITATION IMPOSED BY PARAGRAPH 3.3.1.1 OF THE EXHIBIT AND (2) FAILURE TO STATE COMPLIANCE WITH THE RF PULSE SPECTRUM REQUIREMENT AS REQUIRED BY PARAGRAPH 3.5.3.1.6 OF THE EXHIBIT.

WITH RESPECT TO THE FIRST CONTENTION, EXHIBIT ASNMT PROVIDED:

"3.3.1.1 WEIGHT. THE TOTAL WEIGHT OF THE TEST SETS INCLUDING ALL CABLES, MANUALS, ETC; SHALL NOT BE GREATER THAN 65 POUNDS; HOWEVER, IT SHALL BE A DESIGN GOAL TO REDUCE THE WEIGHT TO THE MINIMUM ESSENTIAL."

IN RESPONSE TO THIS REQUIREMENT, THE PROPOSAL OFFERED A TEST SET WEIGHT OF 115 POUNDS. AFTER RECEIPT OF THE AUGUST 14, 1969, LETTER FROM THE AIR FORCE, YOUR COMPANY REVISED THE PROPOSED TEST SET WEIGHT TO 82 POUNDS BY LETTER DATED AUGUST 26, 1969. ALLEGED ERRONEOUS INFORMATION OBTAINED FROM AIR FORCE ENGINEERING PERSONNEL WAS CONTENDED TO BE THE REASON FOR THE ORIGINAL STATEMENT OF WEIGHT. IN A SUBSEQUENT EVALUATION BY THE AIR FORCE, TAKING INTO ACCOUNT THE REVISED WEIGHT, THE EVALUATORS STATED:

"A. WEIGHT

"THE WEIGHT REQUIREMENT IS CONSIDERED TO BE REASONABLE AND OF CONSIDERABLE IMPORTANCE IN THE DESIGN OF THE SUBJECT TEST SET IN THAT IT SHOULD BE AS LIGHT AS PRACTICAL AND BE CAPABLE OF BEING CARRIED EASILY BY TWO MEN. THE ESTABLISHED WEIGHT REQUIREMENT OF 65 POUNDS IS CONSIDERED TO BE A PRACTICAL VALUE IN THAT: (1) CURRENT COMMERCIAL CONTRACTOR LITERATURE OF SIMILAR TEST EQUIPMENT INDICATES THAT 65 POUNDS IS WELL WITHIN THE STATE-OF-THE ART; (2) AIR FORCE MIL-STD 1472 (HUMAN ENGINEERING DESIGN CRITERIA FOR MILITARY SYSTEMS, EQUIPMENT AND FACILITIES) REQUIRES THAT THE MAXIMUM WEIGHT, UNDER IDEAL CONDITIONS, FOR TWO MEN TO LIFT OR CARRY SHALL NOT EXCEED 76 POUNDS; (3) THIS WEIGHT REPRESENTS A SIGNIFICANT REDUCTION IN WEIGHT OVER OLDER TACAN TEST EQUIPMENT PRESENTLY USED IN THE AIR FORCE AND AS A CONSEQUENCE, ALSO REPRESENTS A CONSIDERABLE REDUCTION IN THE COST OF SHIPPING SINCE IT COSTS THE GOVERNMENT A MINIMUM OF ONE DOLLAR PER POUND FOR SHIPPING; AND, (4) THE THREE ACCEPTABLE PROPOSALS IN RESPONSE TO THE SUBJECT RFP SPECIFIED THAT THE WEIGHT REQUIREMENT COULD BE MET AND TWO OF THEM PRESENTED DETAIL WEIGHT ANALYSIS JUSTIFYING THEIR STATEMENT."

WITH REGARD TO THE RF PULSE SPECTRUM REQUIREMENT, THE AIR FORCE STATED:

"CONTRACTOR'S RESPONSE

"IN RESPONSE TO THIS REQUIREMENT, LTV STATED IN PARAGRAPH 2.5.2.6 OF THEIR PROPOSAL, 'THE PROPOSED TEST SET WILL NOT YIELD SPECTRUM AS GOOD AS THOSE REQUIRED BY MIL-STD-291, WHICH IT APPEARS WAS THE INTENTION OF THE EXHIBIT.' ADDITIONALLY, THE LTV LETTER PRESENTS QUESTIONS CONCERNING THE APPLICABLE DOCUMENTS AND THE SPECTRUM ENERGY LEVELS.

"GOVERNMENT'S COMMENTS

"IN HIS RESPONSE, THE CONTRACTOR FAILED TO STATE COMPLIANCE WITH THE REQUIREMENTS OF THE EXHIBIT. IT IS AGREED THAT WHEN MIL-STD-291 IS A REQUIREMENT THE B REVISION IS THE APPLICABLE ONE RATHER THAN THE A REVISION; HOWEVER, THE RF SPECTRUM REQUIREMENTS ARE THOSE SPECIFIED IN PARAGRAPH 3.5.3.1.6 OF THE EXHIBIT AS NO REFERENCE IS MADE TO MIL-STD 291. IT IS RECOGNIZED THAT MIL-STD-291 DOES REFER TO ENERGY LEVEL IN A BAND OF FREQUENCIES, AND THE EXHIBIT SPECIFIES ENERGY LEVELS AT A DISCRETE FREQUENCY POINT. LTV REPRESENTATIVES AT THE DEBRIEFING TOOK A POSITION THAT EVEN IF THE EXHIBIT REQUIREMENT WAS STATED IN TERMS OF AN ENERGY LEVEL OVER A .5MHZ BAND, LTV COULD NOT MEET THE SPECTRUM REQUIREMENTS AND STILL BE WITHIN THE WEIGHT RESTRICTION IMPOSED BY THE EXHIBIT.

"B. R. F. PULSE SPECTRUM

"THE ACCEPTABLE PROPOSALS WERE REVIEWED IN THIS AREA AND FOUND TO CONTAIN ADEQUATE TECHNICAL DISCUSSIONS, MATHEMATICAL ANALYSIS, PROPOSED APPROACHES, PHOTOGRAPHS, GRAPHS AND REFERENCE TO SIMILAR ENGINEERING APPLICATIONS TO JUSTIFY THEIR STATEMENTS THAT THEY CAN COMPLY WITH THE REQUIREMENT.

"LTV'S CONTENTION THAT 'NOBODY' IS CAPABLE OF MEETING THE SPECTRUM REQUIREMENTS WITHIN THE 65 POUND WEIGHT RESTRICTION MUST BE TREATED AS LTV'S OPINION ONLY, ESPECIALLY WHEN VIEWED IN LIGHT OF THE NUMBER OF ACCEPTABLE PROPOSALS AND THE COMPREHENSIVE TECHNICAL INFORMATION CONTAINED THEREIN."

IT MUST BE MADE CLEAR THAT OUR OFFICE HAS HELD ON MANY OCCASIONS THAT QUESTIONS AS TO WHETHER TECHNICAL PROPOSALS ARE DEFICIENT AND WHETHER DEFICIENT TECHNICAL PROPOSALS ARE REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE ARE BASICALLY MATTERS REQUIRING THE JUDGMENT AND EXPERTISE OF TECHNICALLY QUALIFIED SCIENTIFIC PERSONNEL. IN LIGHT THEREOF, WE ARE REQUIRED TO RELY ON THE JUDGMENT AND EXPERTISE OF THE PROCUREMENT ACTIVITY'S SPECIALISTS AS TO THE ADEQUACY OF A TECHNICAL PROPOSAL, UNLESS IT IS CLEARLY SHOWN THAT THE AGENCY ACTION WAS ARBITRARY, CAPRICIOUS, OR MADE IN BAD FAITH. 40 COMP. GEN. 35, 38 (1960); B-164302, JULY 11, 1968; B-164775, AUGUST 27, 1968; B-164752, SEPTEMBER 10, 1968; B-165457, MARCH 18, 1969; B-165771, APRIL 28, 1969. IN B-165457, SUPRA, WE DISCUSSED IN DETAIL TWO-STEP PROCUREMENT PROCEDURES AND STATED IN PERTINENT PART:

"* * * 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.

AFTER A COMPREHENSIVE REVIEW OF THE FACTS AND CIRCUMSTANCES, WE FIND NO LEGAL BASIS TO OBJECT TO THE REJECTION OF YOUR TECHNICAL PROPOSAL. ACCORDINGLY, YOUR PROTEST IS DENIED.