B-169633(2), JAN 4, 1972

B-169633(2): Jan 4, 1972

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PROTESTANT CONTENDS THAT THE PREVIOUS DECISION WAS BASED ON A MISUNDERSTANDING OF THE FACTS IN THAT THE COMP. WAS NOT AWARE THAT VIDAR'S REVISED PROPOSAL WAS RESPONSIVE. THAT THE SPECIFICATIONS WERE NOT RELAXED IN FAVOR OF VIDAR OR ANY OTHER OFFERORS. THAT THE NOTE ON PAGE 19 OF THE RFP CONCERNING THE EXTENT OF PERMISSIBLE DEVIATIONS WAS MISLEADING. VIDAR WAS ALLOWED TO CORRECT MATERIAL DEFICIENCIES. PROTESTANT FURTHER CONTENDS THAT EMR'S REVISED PROPOSAL WAS NOT RESPONSIVE SINCE THE SYSTEM IT OFFERED DID NOT CONSIST ENTIRELY OF STANDARD OFF-THE-SHELF UNITS. EMR COUNTERS THAT THE REQUIREMENT WAS NOT INTENDED TO APPLY TO ITEMS COMPLEMENTARY TO THE BASIC UNITS OF THE SYSTEM. SINCE THE DRAFTING OF SPECIFICATIONS TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT IS PROPERLY THE FUNCTION OF THE PROCURING AGENCY AND THERE IS NO EVIDENCE THAT THE AGENCY IN THE INSTANT CASE HAS ACTED IN AN ARBITRARY MANNER.

B-169633(2), JAN 4, 1972

BID PROTEST - SPECIFICATIONS - RESPONSIVENESS DECISION AFFIRMING A PREVIOUS DECISION NOT TO REOPEN NEGOTIATIONS UNDER AN RFP ISSUED BY PICATINNY ARSENAL AND DENYING PROTEST BY VIDAR CORPORATION AGAINST AWARD TO EMR TELEMETRY. PROTESTANT CONTENDS THAT THE PREVIOUS DECISION WAS BASED ON A MISUNDERSTANDING OF THE FACTS IN THAT THE COMP. GEN. WAS NOT AWARE THAT VIDAR'S REVISED PROPOSAL WAS RESPONSIVE, THAT THE SPECIFICATIONS WERE NOT RELAXED IN FAVOR OF VIDAR OR ANY OTHER OFFERORS, AND THAT THE NOTE ON PAGE 19 OF THE RFP CONCERNING THE EXTENT OF PERMISSIBLE DEVIATIONS WAS MISLEADING. THE PRIOR DECISION MUST BE AFFIRMED SINCE IT DID NOT REST ON A FINDING OF NONRESPONSIVENESS, VIDAR WAS ALLOWED TO CORRECT MATERIAL DEFICIENCIES, AND THE REFERENCE TO THE NOTE CONTINUES TO APPEAR MISLEADING. PROTESTANT FURTHER CONTENDS THAT EMR'S REVISED PROPOSAL WAS NOT RESPONSIVE SINCE THE SYSTEM IT OFFERED DID NOT CONSIST ENTIRELY OF STANDARD OFF-THE-SHELF UNITS. EMR COUNTERS THAT THE REQUIREMENT WAS NOT INTENDED TO APPLY TO ITEMS COMPLEMENTARY TO THE BASIC UNITS OF THE SYSTEM. SINCE THE DRAFTING OF SPECIFICATIONS TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT IS PROPERLY THE FUNCTION OF THE PROCURING AGENCY AND THERE IS NO EVIDENCE THAT THE AGENCY IN THE INSTANT CASE HAS ACTED IN AN ARBITRARY MANNER, THE PROTEST IS DENIED.

TO MILTON C. GRACE AND WALTER BLUM:

REFERENCE IS MADE TO YOUR LETTER OF JULY 2, 1971, AND SUPPLEMENTAL CORRESPONDENCE, ON BEHALF OF VIDAR CORPORATION, REQUESTING RECONSIDERATION OF OUR DECISION OF JUNE 15, 1971, WHICH AFFIRMED TWO PREVIOUS DECISIONS CONCLUDING THAT NEGOTIATIONS UNDER REQUEST FOR PROPOSALS NO. DAAA21-70-R- 0207, ISSUED BY PICATINNY ARSENAL, SHOULD BE REOPENED. IN ADDITION, YOU PROTEST THE AWARD OF A CONTRACT TO EMR TELEMETRY SUBSEQUENT TO THE REOPENING OF NEGOTIATIONS PURSUANT TO OUR DECISIONS.

YOU CONTEND THAT OUR EARLIER DECISION WAS BASED UPON A MISUNDERSTANDING OF THE FACTS. IN THIS CONNECTION, YOU STATE THAT WE WERE NOT AWARE THAT VIDAR'S REVISED PROPOSAL SUBSEQUENT TO THE FIRST AMENDMENT OF THE RFP WAS RESPONSIVE; THAT THE SPECIFICATIONS WERE NOT RELAXED IN FAVOR OF VIDAR OR ANY OTHER OFFERORS; AND THAT THE NOTE AT THE TOP OF PAGE 19 OF THE RFP DID NOT MISLEAD ANY OF THE OFFERORS. WITH REGARD TO THE FIRST POINT, OUR PRIOR DECISIONS WERE NOT BASED UPON A FINDING THAT VIDAR'S PROPOSAL WAS NONRESPONSIVE. AS TO THE SECOND POINT, OUR UNDERSTANDING OF THE NEGOTIATION RECORD IS THAT VIDAR WAS PERMITTED TO CORRECT MATERIAL DEFICIENCIES, AND THAT THE SAME RIGHT WAS NOT GRANTED TO DATA CONTROL SYSTEMS (DCS). FURTHERMORE, WE BELIEVE THE REFERENCED NOTE IS MISLEADING AS TO THE EXTENT OF ANY DEVIATIONS WHICH WOULD BE PERMITTED AND MIGHT WELL HAVE MISLED DCS AND OTHER OFFERORS. IN THESE CIRCUMSTANCES, WE BELIEVE THE REOPENING OF NEGOTIATIONS WAS REQUIRED. THEREFORE, OUR PRIOR DECISIONS ARE AFFIRMED.

YOUR SECOND CONTENTION CONCERNS THE RESPONSIVENESS OF EMR'S REVISED PROPOSAL TO THE RFP, AS AMENDED, SUBSEQUENT TO OUR LAST DECISION. YOU ARGUE THAT ITS OFFER WAS NONRESPONSIVE BECAUSE THE SYSTEM IT OFFERED DID NOT CONSIST ENTIRELY OF STANDARD OFF-THE-SHELF UNITS. IN THIS CONNECTION, YOU CONTEND THAT ITS EMR-T-MODEL 4220 DUAL GALVANOMETER DRIVE AMPLIFIER WAS NOT A STANDARD ITEM AT THE TIME OF AWARD. YOU POINT OUT THAT INITIALLY EMR OFFERED 36 CEC TYPE 1-172 GALVANOMETER DRIVE AMPLIFIERS WHICH WERE APPARENTLY CONSIDERED NONRESPONSIVE BECAUSE IN ITS FIRST REVISED PROPOSAL THOSE AMPLIFIERS WERE DELETED AND REPLACED BY MODEL 4220. AS AN INDICATION THAT MODEL 4220 WAS NOT STANDARD, YOU NOTE THAT IN REFERRING TO IT EMR STATED THEY WERE "SPECIALLY DESIGNED." FURTHER, YOU POINT OUT THAT WHEREAS EMR FURNISHED BROCHURES ON OTHER COMPONENTS OF ITS SYSTEM, NONE WAS SUPPLIED FOR THE AMPLIFIERS. YOU ALSO REFER TO THE USE OF THE PHRASE "BROAD USE OF STANDARD PRODUCTS" IN ITS INITIAL OFFER.

THE ARMY REPORTS THAT EMR'S PROPOSAL WAS EVALUATED BY COMPETENT ENGINEERING PERSONNEL WHO FOUND IT TECHNICALLY RESPONSIVE TO THE REQUIREMENTS OF THE SPECIFICATIONS. IT IS REPORTED THAT IN ITS FEBRUARY 18, 1970, REVISION OF ITS INITIAL PROPOSAL EMR PROPOSED USE OF ITS 4220 AMPLIFIERS IN CONJUNCTION WITH ITS VOLTAGE-CONTROLLED OSCILLATORS (VCO); THAT THE USE OF SEPARATE MODULES IS PERMITTED BY THE SPECIFICATIONS; AND THAT BY THIS METHOD EMR PROPOSES TO MEET THE REQUIRED ANALOG OUTPUT WITHOUT MODIFICATION OF ITS STANDARD VCOS. WITH REGARD TO YOUR CONTENTION THAT THE EMR-4220 AMPLIFIER DOES NOT COMPLY WITH THE STANDARD OFF-THE- SHELF REQUIREMENT, IT IS THE ARMY'S POSITION THAT SINCE THE AMPLIFIER IS A MINOR INTERFACING DEVICE BETWEEN TWO UNITS OF THE SYSTEM (THE EMR VCO AND THE GOVERNMENT-OWNED GALVANOMETER), IT IS NOT A UNIT WITHIN THE PURVIEW OF THE SPECIFICATION CALLING FOR STANDARD OFF-THE-SHELF UNITS.

EMR WAS AFFORDED AN OPPORTUNITY TO SUBMIT COMMENTS IN SUPPORT OF THE VALIDITY OF THE AWARD. IN ITS REPLY OF NOVEMBER 18, 1971, EMR STATES, AMONG OTHER THINGS, THAT DURING NEGOTIATIONS WITH PICATINNY SUBSEQUENT TO SUBMISSION OF ITS INITIAL PROPOSAL IT WAS SUGGESTED THAT IT CHANGE FROM THE CEC AMPLIFIERS TO THE "NEWLY DESIGNED EMR-T AMPLIFIERS." THEREFORE, IT DOES APPEAR THAT AT THE TIME OF THE FEBRUARY 18, 1970, REVISION THE SUBJECT AMPLIFIER WAS NOT STANDARD. HOWEVER, EMR GOES ON TO STATE ITS VIEW THAT THE STANDARD OFF-THE-SHELF REQUIREMENT WAS INTENDED TO APPLY TO THE BASIC UNITS OF THE SYSTEM AND NOT TO THE ACCESSORY OR COMPLEMENTARY ITEMS.

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). WHILE THERE IS STRONG EVIDENCE THAT THE AMPLIFIER OFFERED BY EMR WAS NOT A STANDARD OFF- THE-SHELF ITEM, WE DO NOT BELIEVE THIS IS A SUFFICIENT BASIS TO CANCEL THE CONTRACT SINCE WE CANNOT SAY THAT THE ARMY'S INTERPRETATION OF THE APPLICABLE SPECIFICATION WAS ERRONEOUS.

ACCORDINGLY, THE PROTEST IS DENIED.