B-168138, FEB. 17, 1970

B-168138: Feb 17, 1970

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THEREFORE DETERMINATION THAT OFFEROR MET INTENT AND SUBSTANCE OF SPECIFICATION AND THAT ONLY DEVIATION WAS MINOR IS UPHELD. TO MICRODYNE CORPORATION: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO DEFENSE ELECTRONICS. THE CONTRACT WAS AWARDED TO DEI ON SEPTEMBER 26. DEI'S NET PRICE IS $161. YOU WERE THIRD LOWEST AT A NET PRICE OF $173. THE SECOND LOW BID WAS $173. CONTENDING THAT SINCE DEI'S TECHNICAL PROPOSAL WAS NOT RESPONSIVE TO THE REQUIREMENT FOR FRONT PANEL PLUG-IN MODULES AS SPECIFIED IN PARAGRAPH 3.2 OF THE REQUEST FOR TECHNICAL PROPOSALS. DEI'S RESPONSE TO THE ABOVE PARAGRAPH WAS AS FOLLOWS: "3.2 COMPLY AND CLARIFY. THE TMR-74 AND ASSOCIATED MODULES PROPOSED ARE EXTREMELY MODULAR.

B-168138, FEB. 17, 1970

BID PROTEST--TECHNICAL EVALUATION DECISION TO MICRODYNE CORPORATION DENYING PROTEST AGAINST AWARD TO DEFENSE ELECTRONICS, INC; LOW OFFEROR, BY VANDENBERG AIR FORCE BASE FOR PROCUREMENT OF 24 S-BAND TELEMETRY DATA RECEIVERS. A REQUEST FOR PROPOSALS THAT AUTHORIZED AND ENCOURAGED MULTIPLE TECHNICAL PROPOSALS PRESENTING DIFFERENT APPROACHES DID NOT REQUIRE EVALUATION ON THE BASIS OF FULL COMPLIANCE WITH ALL DETAILS OF THE SPECIFICATIONS. THEREFORE DETERMINATION THAT OFFEROR MET INTENT AND SUBSTANCE OF SPECIFICATION AND THAT ONLY DEVIATION WAS MINOR IS UPHELD.

TO MICRODYNE CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO DEFENSE ELECTRONICS, INCORPORATED (DEI), BY VANDENBERG AIR FORCE BASE PURSUANT TO INVITATION FOR BIDS NO. F04697-70-B-0012, FOR THE PROCUREMENT OF 24 S-BAND TELEMETRY DATA RECEIVERS.

THE CONTRACT WAS AWARDED TO DEI ON SEPTEMBER 26, 1969, AS THE LOW BIDDER UNDER THE SUBJECT INVITATION, THE SECOND STEP OF A TWO-STEP FORMALLY ADVERTISED PROCUREMENT PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-501. DEI'S NET PRICE IS $161,815.50. YOU WERE THIRD LOWEST AT A NET PRICE OF $173,172, AND THE SECOND LOW BID WAS $173,000, NET.

YOU PROTEST THE AWARD, CONTENDING THAT SINCE DEI'S TECHNICAL PROPOSAL WAS NOT RESPONSIVE TO THE REQUIREMENT FOR FRONT PANEL PLUG-IN MODULES AS SPECIFIED IN PARAGRAPH 3.2 OF THE REQUEST FOR TECHNICAL PROPOSALS, DEI RECEIVED A TECHNICAL AND/OR ECONOMIC ADVANTAGE NOT AFFORDED OTHER BIDDERS.

THE CITED PARAGRAPH PROVIDES AS FOLLOWS:

"3.2 DATA RECEIVER: * * * MAXIMUM USE SHALL BE MADE OF MODULAR-TYPE CONSTRUCTION TO ALLOW THE BASIC RECEIVER TO BE USED FOR SEVERAL APPLICATIONS BY REPLACING ONE OR MORE SUBASSEMBLIES. THE R-F HEAD, IF FILTERS, DEMODULATORS, AND CRYSTALS SHALL BE FRONT PANEL PLUG-IN MODULES. ALL MODULES SHALL BE 'PLUG-IN' AND NO OTHER CABLE CONNECTIONS SHALL BE REQUIRED."

DEI'S RESPONSE TO THE ABOVE PARAGRAPH WAS AS FOLLOWS:

"3.2 COMPLY AND CLARIFY. THE TMR-74 AND ASSOCIATED MODULES PROPOSED ARE EXTREMELY MODULAR. INTERNAL, SEPARATELY IDENTIFIABLE CIRCUIT FUNCTIONS SUCH AS AGC, AFC, METERING, VIDEO FILTERS, TC; ARE ON PLUG-IN PRINTED CIRCUIT MODULES OR PLUG-IN SHIELDED ENCLOSURES. THE RF HEAD, DEMODULATORS AND CRYSTAL AND OVEN ASSEMBLIES ARE FRONT-PANEL PLUG-INS. THE IF BANDWIDTH DETERMINING FILTERS ARE INTERNAL PLUG-IN MODULES. UP TO NINE SUCH MODULES MAY BE PLUGGED-IN AT ANY GIVEN TIME (AND THE USER IS NOT RESTRICTED TO HIS ORIGINAL SELECTION OF NINE SUCH FILTERS). SELECTION OF WHICH OF THE PLUGGED-IN IF FILTERS ARE TO BE ACTIVATED IS ACCOMPLISHED BY MEANS OF FRONT-PANEL PUSH-BUTTONS."

THE AIR FORCE ACKNOWLEDGES THAT DEI'S RESPONSE DEVIATED FROM THE REQUIREMENT FOR FRONT PANEL PLUG-IN MODULES. HOWEVER, THE AIR FORCE WESTERN TEST RANGE (AFWTR) PROJECT ENGINEERING TEAM DETERMINED DEI'S PROPOSAL ACCEPTABLE, CONCLUDING THAT THE "INTENT AND SUBSTANCE OF THE SPECIFICATION" WAS MET AND THE ONLY DEVIATION WAS MINOR. THE AIR FORCE POINTS OUT THAT THE LETTER REQUEST FOR TECHNICAL PROPOSALS (LRTP) AND ATTACHMENTS CLEARLY INDICATED THAT ITS PRIMARY CONCERN WAS RECEIVING TELEMETRY DATA RECEIVERS CAPABLE OF MEETING SPECIFIED PERFORMANCE REQUIREMENTS AND DESIGNED TO FACILITATE EASE OF OPERATION AND MAINTENANCE; THAT THE SPECIAL INSTRUCTIONS FOR PREPARATION OF TECHNICAL PROPOSALS (SIPTP) PROVIDED THAT THE TECHNICAL PRESENTATIONS SHOULD "CONTAIN A PARAGRAPH BY PARAGRAPH COMPLIANCE/NONCOMPLIANCE STATEMENT WITH SPECIFIC RATIONALE FOR ANY NONCOMPLIANCE"; AND THAT DEI'S TECHNICAL PROPOSAL WAS EVALUATED AND DETERMINED ACCEPTABLE UNDER THE FOLLOWING SALIENT EVALUATION CRITERIA SPECIFIED IN THE SIPTP.

(A) SPECIAL TECHNICAL FACTORS THAT ARE TO BE INCORPORATED INTO THE PROPOSED SYSTEM.

(B) UNDERSTANDING OF THE PROBLEM.

(C) COMPLIANCE WITH THE REQUIREMENTS OF THE WORK STATEMENT AND SPECIFICATIONS.

(D) USE OF MODULAR CONSTRUCTION TO ACHIEVE VERSATILITY AND TO MINIMIZE SYSTEM OBSOLESCENCE.

(E) EASE OF MAINTENANCE.

(F) RESPONSE TO DATA ITEMS.

(G) QUALITY OF THE PRODUCT.

(H) ABILITY TO MEET THE GOVERNMENT'S ANTICIPATED PERFORMANCE REQUIREMENTS.

FURTHERMORE, IT IS THE AIR FORCE'S POSITION THAT:

"THE DEI PROPOSAL IN THIS RESPECT EXCEEDED THE SPECIFICATION REQUIREMENTS AND WAS CLEARLY MORE ADVANTAGEOUS TO THE GOVERNMENT. HAVING AN ACCOMODATION FOR NINE INTERNAL PLUG-IN FILTERS WITH SELECTION SWITCHES ON THE FRONT PANEL IS A SIGNIFICANT IMPROVEMENT OVER CHOOSING A FILTER AND THEN PLUGGING IT IN THE FRONT PANEL. FURTHERMORE, THIS SPECIAL DEI FEATURE WOULD APPEAR TO BE NECESSARILY MORE EXPENSIVE BECAUSE OF THE ADDED SWITCHES, INTERNAL WIRING, AND NUMBER OF FILTER MODULE RECEPTACLES; THE MICRODYNE RECEIVER, FOR EXAMPLE, HAD PROVISION FOR ONLY 3 FRONT PANEL PLUG -IN FILTER MODULES. IT IS APPARENT THAT THE GOVERNMENT'S ACCEPTANCE OF THE DEI PROPOSAL DID NOT WORK TO MICRODYNE'S DETRIMENT OR GIVE DEI SPECIAL ADVANTAGE IN THE COMPETITION."

THE TWO-STEP FORMAL ADVERTISING PROCEDURE WAS INITIATED AND INTENDED TO EXTEND THE BENEFITS OF COMPETITIVE ADVERTISING TO PROCUREMENTS WHICH PREVIOUSLY WERE EITHER NEGOTIATED OR CONDUCTED ON A SOLE-SOURCE BASIS. WHILE THE SECOND STEP OF THIS PROCEDURE IS CONDUCTED IN ACCORDANCE WITH THE RATHER RIGOROUS RULES OF FORMAL ADVERTISING (ASPR 2-503.2), THE FIRST STEP, IN FURTHERANCE OF THE GOAL OF MAXIMIZED COMPETITION, CONTEMPLATES THE QUALIFICATION OF AS MANY TECHNICAL PROPOSALS AS POSSIBLE.

ASPR 2-503.1 PROVIDES UNDER (A) (IV) THAT THE REQUEST FOR TECHNICAL PROPOSALS SHALL CONTAIN THE CRITERIA FOR EVALUATING TECHNICAL PROPOSALS AND, UNDER (D), THAT THE TECHNICAL EVALUATION OF THE PROPOSALS SHALL BE BASED UPON THE CRITERIA CONTAINED IN SUCH REQUEST. IN ADDITION TO STATING THE EVALUATION CRITERIA, THE LRTP PROVIDED THAT TECHNICAL PROPOSALS MUST BE BASED ON THE REQUIREMENTS SET FORTH THEREIN, AND "AUTHORIZED AND ENCOURAGED" MULTIPLE TECHNICAL PROPOSALS PRESENTING "DIFFERENT APPROACHES." CONSIDERING THE NATURE OF THE FIRST STEP IN A TWO-STEP PROCUREMENT, THE APPLICABLE REGULATIONS, AND THE PROVISIONS OF THE LRTP, IT IS OUR POSITION THAT ALL PROPOSALS NEED NOT BE EVALUATED ON THE BASIS OF FULL COMPLIANCE WITH ALL DETAILS OF ALL SECTIONS OF THE SPECIFICATIONS. SEE 46 COMP. GEN. 34 (1966).

SINCE DEI'S TECHNICAL PROPOSAL WAS DETERMINED ACCEPTABLE UNDER THE EVALUATION CRITERIA, THE RESPONSIBILITY FOR DETERMINING THE NEEDS OF THE GOVERNMENT AND WHETHER TECHNICAL PROPOSALS MEET THE GOVERNMENT'S REQUIREMENTS IS VESTED IN THE PROCURING AGENCIES, AND THERE IS NO INDICATION THAT DEI OBTAINED ANY UNDUE ADVANTAGE, THERE IS NO BASIS FOR OUR OFFICE TO DISTRUB THE AWARD. SEE 40 COMP. GEN. 35 (1960).