B-169633(1), JAN 4, 1972

B-169633(1): Jan 4, 1972

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THE DCS OFFER WAS REJECTED FOR NON-COMPLIANCE WITH THE REQUIREMENTS OF THE RFP. DISCUSSIONS SHOULD HAVE BEEN HELD. THE DRAFTING OF SPECIFICATIONS TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT IS PROPERLY THE FUNCTION OF THE PROCURING AGENCY. THERE IS NO EVIDENCE THAT THE TECHNICAL EVALUATION WAS ARBITRARY. THE PROTEST IS DENIED. TO GADSBY & HANNAH: REFERENCE IS MADE TO YOUR REPRESENTATION OF DATA-CONTROL SYSTEMS. THE AWARD WAS MADE TO EMR SUBSEQUENT TO OUR DECISION OF JUNE 15. THE SPECIFICATIONS WERE REVISED BY AMENDMENTS AND OFFERORS WERE ADVISED THAT SINCE AWARD OF A CONTRACT MAY BE MADE WITHOUT DISCUSSION. ITS OFFER WAS REJECTED AND AWARD MADE TO THE NEXT LOW OFFEROR. IT IS DCS'S CONTENTION THAT ITS OFFER COMPLIED WITH THE CITED SPECIFICATIONS AND THAT THE LITERATURE SUBMITTED WITH ITS PROPOSAL WAS MISINTERPRETED.

B-169633(1), JAN 4, 1972

BID PROTEST - NONRESPONSIVENESS - RIGHT TO DISCUSSIONS DECISION DENYING PROTEST OF DATA-CONTROL SYSTEMS, INC. (DCS), LOW BIDDER, AGAINST AWARD TO EMR TELEMETRY UNDER AN RFP ISSUED BY PICATINNY ARSENAL, DOVER, N.J. THE DCS OFFER WAS REJECTED FOR NON-COMPLIANCE WITH THE REQUIREMENTS OF THE RFP. DCS ALLEGES MISINTERPRETATION OF ITS PROPOSAL AND CONTENDS THAT IF ANY DOUBTS AS TO ITS PROPOSAL EXISTED, DISCUSSIONS SHOULD HAVE BEEN HELD. THE DRAFTING OF SPECIFICATIONS TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT IS PROPERLY THE FUNCTION OF THE PROCURING AGENCY. ASPR 3 805.1 REQUIRES THAT DISCUSSIONS SHALL BE CONDUCTED AFTER RECEIPT OF INITIAL PROPOSALS. SINCE, IN THE INSTANT CASE, THE CONTRACTING OFFICER HAS COMPLIED WITH THE REGULATION, THERE IS NO EVIDENCE THAT THE TECHNICAL EVALUATION WAS ARBITRARY. ACCORDINGLY, THE PROTEST IS DENIED.

TO GADSBY & HANNAH:

REFERENCE IS MADE TO YOUR REPRESENTATION OF DATA-CONTROL SYSTEMS, INCORPORATED, IN CONNECTION WITH ITS PROTEST AGAINST THE AWARD OF A CONTRACT TO EMR TELEMETRY PURSUANT TO REQUEST FOR PROPOSALS NO. DAAA21 70- R-0207, ISSUED BY PICATINNY ARSENAL, DOVER, NEW JERSEY.

THE AWARD WAS MADE TO EMR SUBSEQUENT TO OUR DECISION OF JUNE 15, 1971, IN WHICH WE AFFIRMED TWO EARLIER DECISIONS CONCLUDING THAT PREVIOUSLY CLOSED NEGOTIATIONS SHOULD BE REOPENED. THE SPECIFICATIONS WERE REVISED BY AMENDMENTS AND OFFERORS WERE ADVISED THAT SINCE AWARD OF A CONTRACT MAY BE MADE WITHOUT DISCUSSION, OFFERS SHOULD BE SUBMITTED ON THE MOST FAVORABLE TERMS. DCS SUBMITTED THE LOW OFFER. HOWEVER, TECHNICAL PERSONNEL DETERMINED THAT ITS PROPOSAL DID NOT COMPLY WITH THE REQUIREMENT OF PARAGRAPH 7.5.1 FOR AN INPUT METER, AND PARAGRAPHS 7.1.3 AND 7.8.2, PROVIDING FOR A MAXIMUM OF TWO DISCRIMINATORS ON ONE POWER SOURCE. THEREFORE, ITS OFFER WAS REJECTED AND AWARD MADE TO THE NEXT LOW OFFEROR.

IT IS DCS'S CONTENTION THAT ITS OFFER COMPLIED WITH THE CITED SPECIFICATIONS AND THAT THE LITERATURE SUBMITTED WITH ITS PROPOSAL WAS MISINTERPRETED. IT IS STATED THAT THE INPUT METERS WERE "INCORPORATED WITHIN OUR IMPLEMENTATION," AND THAT SINCE ITS POWER SOURCE CAN ACCOMMODATE UP TO SEVEN DISCRIMINATORS IT CAN OBVIOUSLY ACCOMMODATE TWO AS CALLED FOR UNDER THE SPECIFICATIONS. FURTHER, IT IS CONTENDED THAT IF THERE WAS ANY DOUBT ABOUT COMPLIANCE, DISCUSSIONS SHOULD HAVE BEEN HELD.

THE CONTRACTING OFFICER REPORTS THAT SINCE MORE THAN 16 MONTHS HAD ELAPSED SINCE THE RFP WAS ISSUED, NEGOTIATIONS HAD PREVIOUSLY BEEN CONDUCTED WITH ALL OFFERORS, AND ALL PROPOSALS HAD PREVIOUSLY RECEIVED DETAILED AND CAREFUL EVALUATION, THE AMENDMENT SUBSEQUENT TO OUR DECISION INCLUDED NOTICE THAT BEST AND FINAL OFFERS MUST BE SUBMITTED BY JULY 1, 1971, AND THAT AWARD MIGHT BE MADE WITHOUT FURTHER DISCUSSIONS. TECHNICAL EVALUATION OF DCS'S BROCHURE FOR ITS MODEL GFD 15 OFFERED IN LIEU OF THE MODEL GFD-13 ORIGINALLY OFFERED FAILED TO SHOW THE REQUIRED INPUT METER, AND CLEARLY SHOWED MORE THAN THE SPECIFIED MAXIMUM TWO DISCRIMINATORS ON ONE POWER SOURCE. THEREFORE, ITS OFFER WAS REJECTED AS TECHNICALLY NONCONFORMING.

IT IS WELL ESTABLISHED THAT THE DRAFTING OF SPECIFICATIONS TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT, AS WELL AS THE FACTUAL DETERMINATION WHETHER ITEMS OFFERED MEET THE SPECIFICATIONS, IS PROPERLY THE FUNCTION OF THE PROCURING AGENCY AND NOT SUBJECT TO QUESTION BY OUR OFFICE UNLESS THE AGENCY HAS ACTED ARBITRARILY. 17 COMP. GEN. 554 (1938). IN THE INSTANT CASE WE FIND NO EVIDENCE THAT THE TECHNICAL EVALUATION WAS ARBITRARY.

WITH REGARD TO THE NATURE AND EXTENT OF NEGOTIATIONS TO BE CONDUCTED WITH OFFERORS, ARMED SERVICES PROCUREMENT REGULATION 3-805.1, IN IMPLEMENTATION OF 10 U.S.C. 2304(G), REQUIRES THAT AFTER RECEIPT OF INITIAL PROPOSALS WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WITHIN A COMPETITIVE RANGE. THE RECORD IN THE INSTANT CASE SHOWS THAT THERE WERE DISCUSSIONS AFTER RECEIPT OF INITIAL PROPOSALS. THEREFORE, THE FAILURE TO CONDUCT FURTHER DISCUSSIONS WAS NOT IMPROPER.

ACCORDINGLY, YOUR PROTEST IS DENIED.