B-169276, MAY 26, 1970

B-169276: May 26, 1970

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CONTENDS THAT REQUIREMENT FOR ACTUAL RESPONSIBILITY AND THAT ALL PERSONNEL WILL HAVE EXPERIENCE BY EXPERIENCE ON 4 PI/CP-2 IS UNREALISTIC METHOD OF DETERMINING PERFORMANCE TIME. CONTENDS THAT EXPERIENCE REQUIREMENT IS UNREALISTIC METHOD OF DETERMINING RESPONSIBILITY AND THAT ALL PERSONNEL WILL HAVE EXPERIENCE BY PERFORMANCE TIME. RESOLUTION OF EXPERIENCE QUESTION IS EXPRESSED IN TERMS OF RESPONSIBILITY ALTHOUGH IT MAY BE ARGUED EXPERIENCE IS MATTER OF RESPONSIVENESS. THE SUBJECT INVITATION WAS ISSUED ON JANUARY 12. WE UNDERSTAND THAT THE CURRENT MAJOR PROGRAM EFFORT IS THE DEVELOPMENT OF THE PLRACTA COMMUNICATION/NAVIGATION TERMINAL INTERFACE EQUIPMENTS. THAT THE DOMINANT COMPONENT OF THE TERMINAL IS THE AN/AYK-6 (IBM 4 PI.

B-169276, MAY 26, 1970

CONTRACTS--DISPUTES--CONFLICT BETWEEN ADMINISTRATIVE REPORT AND CONTRACTOR'S ALLEGATIONS INVITATION FOR BIDS, SMALL BUSINESS SET-ASIDE, FOR COMPUTER PROGRAMMING REQUIRED PRIOR EXPERIENCE ON IBM 4 PI/CP-2 COMPUTER. UNSUCCESSFUL BIDDER, DETERMINED NONRESPONSIBLE AFTER NEGATIVE RECOMMENDATION OF SURVEY TEAM, WITH SMALL BUSINESS ADMINISTRATION DECLINING TO ISSUE CERTIFICATE OF COMPETENCY, CONTENDS THAT REQUIREMENT FOR ACTUAL RESPONSIBILITY AND THAT ALL PERSONNEL WILL HAVE EXPERIENCE BY EXPERIENCE ON 4 PI/CP-2 IS UNREALISTIC METHOD OF DETERMINING PERFORMANCE TIME; HOWEVER, URGENCY OF PROGRAM REPORTEDLY DOES NOT PERMIT DELAY FOR TRAINING AND IN FACTUAL DISPUTE AS TO CRITICALITY OF COMPUTER EXPERIENCE GAO DEFERS TO TECHNICAL JUDGMENT OF ADMINISTRATIVE AGENCY. SEE COMP. GEN DECS. CITED. BIDDERS-- QUALIFICATIONS- EXPERIENCE--RESPONSIBILITY V. RESPONSIVENESS INVITATION FOR BIDS FOR COMPUTER PROGRAMMING REQUIRED PRIOR EXPERIENCE ON IBM 4 PI/CP-2 COMPUTER. UNSUCCESSFUL BIDDER, DETERMINED NONRESPONSIBLE, WITH SMALL BUSINESS ADMINISTRATION DECLINING TO ISSUE CERTIFICATE OF COMPETENCY, CONTENDS THAT EXPERIENCE REQUIREMENT IS UNREALISTIC METHOD OF DETERMINING RESPONSIBILITY AND THAT ALL PERSONNEL WILL HAVE EXPERIENCE BY PERFORMANCE TIME. URGENCY DOES NOT PERMIT DELAY FOR TRAINING. RESOLUTION OF EXPERIENCE QUESTION IS EXPRESSED IN TERMS OF RESPONSIBILITY ALTHOUGH IT MAY BE ARGUED EXPERIENCE IS MATTER OF RESPONSIVENESS. GAO FINDS NO BASIS FOR OBJECTING TO CONTRACTING OFFICER'S CONCLUSION THAT ADVERSE JUDGMENT RELATED TO "CAPACITY" THEREBY REQUIRING REFERRAL TO SMALL BUSINESS ADMINISTRATION. SEE COMP. GEN. DECS. CITED.

TO TECHNICAL ENDEAVORS INC.:

WE REFER TO YOUR TELEGRAM OF MARCH 10, 1970, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST AWARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. F19650-70-B-0128, ISSUED BY THE ELECTRONIC SYSTEMS DIVISION (ESD) (AFSC), L. G. HANSCOM FIELD, BEDFORD, MASSACHUSETTS.

THE SUBJECT INVITATION WAS ISSUED ON JANUARY 12, 1970, AS A TOTAL SMALL BUSINESS SET-ASIDE, AND REQUESTED BIDS FOR FURNISHING PROGRAMMING IN CONNECTION WITH THE AIR FORCE'S PROGRAM FOR THE POSITION LOCATION, REPORTING AND CONTROL OF TACTICAL AIRCRAFT (PLRACTA). SPECIFICALLY, WE UNDERSTAND THAT THE CURRENT MAJOR PROGRAM EFFORT IS THE DEVELOPMENT OF THE PLRACTA COMMUNICATION/NAVIGATION TERMINAL INTERFACE EQUIPMENTS; THAT THE DOMINANT COMPONENT OF THE TERMINAL IS THE AN/AYK-6 (IBM 4 PI, MODEL CP-2) AVIONIC COMPUTER; AND THAT THE SUCCESSFUL CONTRACTOR WILL PROVIDE PROGRAMS FOR THE COMPUTER FROM DESIGNS PREPARED BY THE MITRE CORPORATION, PLRACTA SYSTEM ENGINEERING CONTRACTOR. THE RECORD DEMONSTRATES THAT THE NEED FOR THE SERVICES IS URGENT.

TO MEET THE PROGRAM NEEDS, THE INVITATION CONTAINS THE FOLLOWING REQUIREMENTS RELATIVE TO THE EXPERIENCE OF THE SUCCESSFUL CONTRACTOR'S PERSONNEL:

"II. EXPERIENCE: FURNISH TWO (2) EACH SENIOR PROGRAMMERS EACH HAVING A MINIMUM OF EIGHT YEARS OF PROGRAMMING EXPERIENCE AND POSSESSING AT LEAST A BACHELOR OF SCIENCE DEGREE IN MATHEMATICS OR A PHYSICAL SCIENCE. THEY SHALL BE AVAILABLE FOR WORK WITHIN 14 DAYS AFTER CONTRACT AWARD.

"FURNISH TWO (2) EACH PROGRAMMERS EACH HAVING A MINIMUM OF FIVE YEARS EXPERIENCE IN PROGRAMMING. THEY SHALL BE AVAILABLE FOR WORK WITHIN 45 DAYS AFTER CONTRACT AWARD.

"ALL PROGRAMMERS MUST HAVE PRIOR EXPERIENCE ON IBM SYSTEM 4PI, MODEL CP-2 AIRBORNE COMPUTERS AND THE ASSOCIATED IBM 360/40, 50, 65, 70 SOFTWARE SUPPORT PACKAGE."

SIX BIDS WERE RECEIVED ON JANUARY 29, 1969, THE BID OPENING DATE, AND ARE REPORTED AS FOLLOWS:

TECHNICAL ENDEAVORS $ 87,648.00

THE FRANKLIN COMPANY 93,900.00

ANALYSIS & COMPUTER SYSTEMS, INC. 94,505.20

DIGITRON SYSTEMS, INC. 98,868.80

ANALYSIS AND PROGRAMMING CORP. 113,040.40

NORTHWEST COMPUTING 190,960.00

IN ACCORDANCE WITH PRESCRIBED PROCEDURES, THE CONTRACTING OFFICER REQUESTED THE DEFENSE CONTRACT ADMINISTRATION SERVICES CENTER (DCASR), BOSTON, MASSACHUSETTS, TO CONDUCT A PREAWARD SURVEY TO DETERMINE YOUR FIRM'S RESPONSIBILITY. IN ADDITION TO DCASR PERSONNEL, A REPRESENTATIVE OF THE PROCURING ACTIVITY AND A REPRESENTATIVE OF THE MITRE CORPORATION PARTICIPATED IN THE SURVEY.

ON THE BASIS OF ITS INVESTIGATION, THE PREAWARD SURVEY TEAM RECOMMENDED IN ITS REPORT OF FEBRUARY 11, 1970, THAT NO AWARD BE MADE TO YOUR FIRM, CITING A LACK OF ADEQUATE LABOR RESOURCES AND AN INABILITY TO MEET THE DELIVERY SCHEDULE. AS WE VIEW THE RECORD, THE SURVEY TEAM'S NEGATIVE RECOMMENDATION IS TRACED TO THE FAILURE TO MEET THE REQUIREMENT FOR PRIOR EXPERIENCE ON THE IBM 4 PI, MODEL CP-2 COMPUTER.

ON FEBRUARY 12, 1970, THE CONTRACTING OFFICER ADOPTED THE SURVEY TEAM'S RECOMMENDATION AND DETERMINED THAT YOUR FIRM WAS NONRESPONSIBLE. ACCORDANCE WITH PARAGRAPH 1-705.4 (C) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), THE CONTRACTING OFFICER ON THE NEXT DAY REQUESTED THE SMALL BUSINESS ADMINISTRATION (SBA) TO DETERMINE YOUR CAPACITY AND CREDIT FOR CERTIFICATE OF COMPETENCY (COC) PURPOSES. BY LETTERS DATED MARCH 5, 1970, THE AREA ADMINISTRATOR, NORTHEASTERN AREA OFFICE, SBA, BOSTON, ADVISED THE CONTRACTING OFFICER AND YOUR FIRM THAT IT HAD DECLINED TO ISSUE A CERTIFICATE OF COMPETENCY. SBA'S LETTER TO YOUR FIRM ADVISED, IN PART, THAT:

"WE HAVE CAREFULLY REVIEWED ALL INFORMATION AND DATA SUPPLIED, AND FIND NO SUFFICIENT REASON FOR DISAGREEING WITH THE DECISION OF THE PROCURING AGENCY TO DENY YOU THIS CONTRACT. * * * * * OUR REVIEW INDICATES THAT YOUR EXISTING PERSONNEL AND THOSE PROSPECTIVE PERSONNEL INDICATED BY YOU HAVE THE GENERAL BACKGROUND AND EXPERIENCE REQUIRED BUT DO NOT HAVE THE PRIOR OPERATIONAL EXPERIENCE ON THE IBM SYSTEM/4PI, MODEL CP-2 WHICH IS A FIRM REQUIREMENT OF THE SPECIFICATIONS."

WE UNDERSTAND THAT THE SECOND LOW BIDDER, THE FRANKLIN COMPANY, WAS ALSO DETERMINED TO BE NONRESPONSIBLE, BUT DECLINED TO APPLY FOR A COC. THE PROCURING ACTIVITY PROPOSES TO AWARD THE CONTRACT TO ANALYSIS & COMPUTER SYSTEMS, INC; AS THE LOW RESPONSIVE, RESPONSIBLE BIDDER; HOWEVER, FURTHER ACTION HAS BEEN WITHHELD PENDING OUR CONSIDERATION OF THE PROTEST.

YOUR BASIC POSITION, AS OUTLINED IN A LETTER OF MARCH 16, 1970, IS THAT THE PROGRAMMERS YOU PROPOSE TO FURNISH EXCEED THE LEVEL OF OVERALL GENERAL EXPERIENCE REQUIRED AND, ACCORDINGLY, WILL HAVE NO DIFFICULTY IN PROGRAMMING THE 4 PI, MODEL CP-2 COMPUTER. IN THIS REGARD, YOU URGE THAT THE 4 PI, MODEL CP-2 COMPUTER IS SIMILAR TO THE IBM 1130 AND 1800 COMPUTERS; THAT ITS COMMAND STRUCTURE IS SIMILAR TO THE IBM 360 COMPUTER SERIES; AND THAT IT IS GENERALLY ACCEPTED THAT GIVEN SIMILAR MACHINES, COMPETENT PROGRAMMERS CAN MOVE FROM ONE COMPUTER TO ANOTHER WITHOUT DIFFICULTY. (THIS LATTER STATEMENT IS SUPPORTED BY AN EXPRESSION OF OPINION BY A PROFESSOR OF COMPUTER SCIENCES.) IT IS MAINTAINED, THEREFORE, THAT A REQUIREMENT FOR ACTUAL EXPERIENCE ON THE 4 PI, MODEL CP- 2 COMPUTER IS AN UNREALISTIC METHOD OF DETERMINING RESPONSIBILITY. MOREOVER, YOU STATE THAT ALL TECHNICAL ENDEAVORS INC; PERSONNEL TO BE SUPPLIED UNDER THE CONTRACT WILL HAVE PRIOR 4 PI, MODEL CP-2 EXPERIENCE BY THE TIME OF PERFORMANCE. IN THIS REGARD, YOUR LETTER OF APRIL 22, 1970, FOCUSES ON THE TIME PERIOD AFTER AWARD BEFORE COMMENCING PERFORMANCE AND MAINTAINS THAT THIS WILL BE SUFFICIENT TIME TO ACQUIRE THE REQUIRED EXPERIENCE.

THE PREMISES UNDERLYING YOUR CONTENTIONS ARE DISPUTED IN THE CONTRACTING OFFICER'S STATEMENT OF FACTS AND FINDINGS, IN PERTINENT PART, AS FOLLOWS:

"* * * CONTRARY TO THE CONTRACTOR'S CONTENTIONS, THE IBM 4 PI, MODEL CP-2 COMPUTER IS A MACHINE UNIQUE IN ORGANIZATION AND OPERATION. THE PROGRAMMING AND OPERATION OF THIS COMPUTER REQUIRES SPECIALIZED TRAINING AND HANDS ON EXPERIENCE. THE STATEMENT BY THE CONTRACTOR THAT 'GIVEN SIMILAR MACHINES, COMPETENT PROGRAMMERS CAN MOVE FROM ONE COMPUTER TO ANOTHER WITHOUT DIFFICULTY' IS TRUE PROVIDED THAT A 'COMPETENT PROGRAMMER' IS DEFINED AS ONE WITH EXTENSIVE PROGRAMMING EXPERIENCE ON A COMPUTER OF THE SAME FAMILY AND HAS HANDS ON EXPERIENCE WITH THE PARTICULAR COMPUTER IN QUESTION. THE RESUMES OF CONTRACTOR PERSONNEL PRESENTED TO ESD AND SBA INDICATE THAT ALL OF THE CONTRACTOR PERSONNEL HAD EXPERIENCE WITH GENERAL PURPOSE COMPUTERS TO SOME VARYING DEGREE, BUT NONE OF THEIR PERSONNEL HAD EXPERIENCE WITH A FAMILY OF REAL TIME SMALL COMPUTERS SIMILAR TO THE IBM 4 PI, MODEL CP-2 COMPUTER. * * *"

THE ADEQUACY OF YOUR ARRANGEMENTS TO ACQUIRE EXPERIENCE ON THE 4 PI, MODEL CP-2 COMPUTER IN LIGHT OF THE NEED FOR THE REQUIRED SERVICES IS DISCUSSED GENERALLY BY THE CHIEF, CONTRACT PLACEMENT DIVISION, DIRECTORATE OF PROCUREMENT POLICY, DEPUTY CHIEF OF STAFF, SYSTEMS AND LOGISTICS, IN HIS LETTER OF APRIL 8, 1970, WHERE IT IS NOTED THAT "WHILE PROGRAMMERS WITH EXTENSIVE EXPERIENCE IN GENERAL PURPOSE COMPUTERS COULD LEARN TO OPERATE AND TO PROGRAM THE IBM 4 PI MODEL CP 2, THE URGENCY OF THE PLRACTA PROGRAM DOES NOT PERMIT SUCH DELAY." SPECIFICALLY, A LETTER DATED MARCH 24, 1970, FROM THE CHIEF, GENERAL PURCHASING FOR SYSTEMS PLANNING DIVISION, DIRECTORATE OF PLANNING AND TECHNOLOGY, ESD, ADVISES THAT:

"* * * AS FAR AS (WE) CAN DETERMINE, TECHNICAL ENDEAVORS HAS NOT ESTABLISHED WITH IBM OR ANY OTHER COMPANY ANY AGREEMENT OR CONTRACT WHICH WOULD PROVIDE TO THEIR PERSONNEL 'HANDS ON EXPERIENCE' ON THE 4PI/CP-2. THE ONLY EXPERIENCE TECHNICAL ENDEAVORS COULD CLAIM IS THAT:

"A. THEY HAVE ACQUIRED AND READ LITERATURE AND DOCUMENTATION CONCERNING 4PI/CP-2 PROGRAMS;

"B. THEY HAVE ARRANGED FOR A LIMITED CONSULTING SERVICE FROM IBM SUCH SERVICE BEING OF A NON 'HANDS ON MACHINE' NATURE; AND

"C. PERHAPS THEY HAVE RECEIVED SOME GENERAL PROGRAMMING INSTRUCTION FROM LOCAL UNIVERSITY LEVEL TEACHER PERSONNEL.

"THIS DOES NOT CONSTITUTE 'EXPERIENCE ON THE 4PI/CP-2.'"

THE RECORD BEFORE US PRESENTS A FACTUAL DISPUTE, TECHNICAL IN NATURE, AS TO THE CRITICALITY OF THE REQUIREMENT FOR EXPERIENCE ON THE 4 PI, MODEL CP -2 COMPUTER IN LIGHT OF THE QUALIFICATIONS OF YOUR FIRM'S PERSONNEL AND THE ADEQUACY OF ARRANGEMENTS MADE BY YOUR FIRM TO SATISFY THIS REQUIREMENT. THE RECORD FURTHER INDICATES THAT YOUR POSITION WAS CONSIDERED BY THE PROCURING ACTIVITY AND SBA. UNDER THE CIRCUMSTANCES, WE ARE CONSTRAINED TO DEFER TO THE TECHNICAL JUDGMENT OF THE ADMINISTRATIVE AGENCY. RESOLUTION OF THIS QUESTION HAS IN THIS CASE BEEN EXPRESSED IN TERMS OF RESPONSIBILITY, ALTHOUGH BECAUSE OF THE NATURE OF THE PERSONAL SERVICES BEING PROCURED, IT IS POSSIBLE TO ARGUE THAT THE REQUIREMENT FOR EXPERIENCE ON THE 4 PI, MODEL CP-2 COMPUTER MAY BE A MATTER OF RESPONSIVENESS. SEE, GENERALLY, 49 COMP. GEN. 9 (1969); 48 ID. 291 (1968). REGARDLESS OF THE CATEGORIZATION OF THIS ISSUE, THE FUNDAMENTAL DISPUTE REMAINS, AND WE FIND NO BASIS FOR OBJECTING TO THE CONTRACTING OFFICER'S CONCLUSION THAT HIS ADVERSE JUDGMENT RELATED TO "CAPACITY" (SEE ASPR 1-705.4 (A)), THEREBY REQUIRING REFERRAL TO SBA. CF. 40 COMP. GEN. 106 (1960). MOREOVER, WE VIEW SBA'S REFUSAL TO ISSUE A COC AS AN AFFIRMATION OF THE CONTRACTING OFFICER'S DETERMINATION THAT YOUR FIRM LACKED THE ABILITY TO MEET ITS REQUIREMENTS. SEE 47 COMP. GEN. 360 (1968); 39 ID. 705 (1960).