B-170142, OCT. 22, 1970

B-170142: Oct 22, 1970

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WHERE IT WAS DEEMED APPROPRIATE TO SUPPLY A FURTHER DEFINITION OF TECHNICAL PROPOSALS TO TWO OFFERORS AND THEY WERE INFORMED THAT THEY MAY REVISE THEIR PREVIOUSLY SUBMITTED OFFER AS TO CERTAIN FACTORS AND THAT REVISION OF A SECOND SET OF FACTORS WAS NOT NECESSARY THEN THIS PROCEDURE DOES NOT PRECLUDE THE USE OF THE SECOND SET OF FACTORS IN EVALUATING THE FINAL PRICES. THERE WAS NOT SUFFICIENT PROOF OF SUCH ALLEGATION. ANY COMPETITIVE ADVANTAGE WHICH MAY HAVE RESULTED FROM THE NEGOTIATING ACTION ACCRUED TO THE PROTESTANT. INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 24. THE SUBJECT SOLICITATION WAS ISSUED ON APRIL 22. WHICH WAS ENTITLED "EVALUATION. " PROPOSALS WERE TO BE EVALUATED BY A BOARD APPOINTED BY THE DISTRICT ENGINEER.

B-170142, OCT. 22, 1970

BID PROTEST - NEGOTIATIONS - EVALUATION PROCEDURE DENIAL OF PROTEST BY EG&G INTERNATIONAL, INC., AGAINST THE AWARD OF A NEGOTIATED CONTRACT FOR DESIGN AND FABRICATION OF A DATA COLLECTION NETWORK TO TEXAS INSTRUMENTS, INC., BY ARMY CORPS OF ENGINEERS. WHERE IT WAS DEEMED APPROPRIATE TO SUPPLY A FURTHER DEFINITION OF TECHNICAL PROPOSALS TO TWO OFFERORS AND THEY WERE INFORMED THAT THEY MAY REVISE THEIR PREVIOUSLY SUBMITTED OFFER AS TO CERTAIN FACTORS AND THAT REVISION OF A SECOND SET OF FACTORS WAS NOT NECESSARY THEN THIS PROCEDURE DOES NOT PRECLUDE THE USE OF THE SECOND SET OF FACTORS IN EVALUATING THE FINAL PRICES. WHERE PROTESTANT ALLEGES FURTHER THAT THE PROCUREMENT EMPLOYED AUCTION TECHNIQUES, THERE WAS NOT SUFFICIENT PROOF OF SUCH ALLEGATION; ALSO, ANY COMPETITIVE ADVANTAGE WHICH MAY HAVE RESULTED FROM THE NEGOTIATING ACTION ACCRUED TO THE PROTESTANT. THEREFORE THE PROTEST MUST BE DENIED.

TO EG&G INTERNATIONAL, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 24, 1970, TO THIS OFFICE, AND TO A COPY OF A LETTER DATED JUNE 26, 1970, TO THE CONTRACTING OFFICER, PROTESTING AGAINST AN AWARD TO TEXAS INSTRUMENTS, INC., UNDER REQUEST FOR PROPOSALS NO. DACW 35-70-R-0001.

THE SUBJECT SOLICITATION WAS ISSUED ON APRIL 22, 1970, BY THE ARMY CORPS OF ENGINEERS, DETROIT, MICHIGAN, AND REQUESTED PROPOSALS FOR THE DESIGN, FABRICATION, AND FURNISHING OF A COMPLETE DATA COLLECTION NETWORK TO BE INSTALLED IN LAKE ONTARIO IN SUPPORT OF THE INTERNATIONAL FIELD YEAR FOR THE GREAT LAKES.

PURSUANT TO NOTE 3 OF THE SCHEDULE, WHICH WAS ENTITLED "EVALUATION," PROPOSALS WERE TO BE EVALUATED BY A BOARD APPOINTED BY THE DISTRICT ENGINEER. POINTS WERE TO BE DISTRIBUTED TO EACH OFFER IN ACCORDANCE WITH THE WEIGHTS SET OUT IN THE EVALUATION PARAGRAPH. A NUMERICAL SCORE WOULD BE ESTABLISHED FOR EACH RESPONSIVE OFFER AND THE OFFEROR WITH THE HIGHEST TOTAL POINT SCORE WOULD BE DEEMED TO BE THE LOWEST ACCEPTABLE OFFEROR. THE AFORESAID WEIGHTS AND CATEGORIES WERE AS FOLLOWS:

"OFFERED PRICE (SCHEDULE ITEM NOS. 1-5, INCL.) -- TOTAL WEIGHT -- 40

1. NETWORK DESIGN 10

2. PROTOTYPE BUOY 5

3. PRODUCTION BUOYS 10

4. ISLAND METEOROLOGICAL STATION 5

5. LAND METEOROLOGICAL STATION 5

6. SHALLOW WATER TOWER 2

7. DEEP WATER TOWER 3

"COST OF ANNUAL OPERATION AND MAINTENANCE

(SCHEDULE ITEM NO. 6) -- TOTAL WEIGHT -- 10

1. ANNUAL OPERATING COST 5

2. ANNUAL MAINTENANCE COST 5

"COST OF COMPUTER; REMOTE TERMINAL; COMMUNICATION

LINK BETWEEN REMOTE TERMINAL AND COMPUTER; SOFTWARE

(SCHEDULE ITEM NO. 7) -- TOTAL WEIGHT -- 10

1. COMPUTER 5

2. REMOTE TERMINAL 1

3. COMMUNICATION LINK 1

4. SOFTWARE 3

"TECHNICAL PROPOSAL -- TOTAL WEIGHT -- 40

1. ABILITY OF CONTRACTOR AND SUBCONTRACTOR TO PERFORM -

(A) EXPERIENCE 5

(B) QUALIFICATIONS 3

(C) KEY PERSONNEL 2

2. DESIGN CONCEPT -

(A) CONCEPTUAL APPROACH 24

(B) INVESTIGATION OF ALTERNATE METHODS 3

(C) COST TRADE-OFFS 3"

WHILE SCHEDULE ITEMS 6 AND 7 WERE TO BE INCLUDED AS EVALUATION FACTORS (10 POINTS FOR EACH), NOTE 2 OF THE SCHEDULE, ENTITLED "AWARD" PROVIDED IN PART "AWARD WILL NOT INCLUDE ANNUAL OPERATING AND MAINTENANCE COSTS (ITEM 6), OR FURNISHING COMPUTER, REMOTE TERMINAL, COMMUNICATION LINK BETWEEN REMOTE TERMINAL AND COMPUTER, AND SOFTWARE (ITEM 7)."

OFFERS WERE RECEIVED AND PUBLICLY OPENED, AND THE OFFERED PRICES DISCLOSED IN THE OFFICE OF THE DISTRICT ENGINEER ON JUNE 1, 1970, AT 11:00 A.M., EST. AT THE TIME OF OPENING THE FOLLOWING FIVE OFFERORS HAD RESPONDED:

GENERAL ELECTRIC COMPANY

MARINE RESOURCES, INC.

LITTON SYSTEMS, INC.

EG&G

RAYTHEON COMPANY

THEREAFTER AT 12:10 P.M. ON JUNE 1, 1970, AN OFFER WAS RECEIVED FROM TEXAS INSTRUMENTS, INC. (TI). IT WAS DETERMINED THAT THE OFFER HAD BEEN MAILED IN SUFFICIENT TIME TO HAVE BEEN CONSIDERED BUT FOR THE DELAY IN THE MAILS WHICH WAS BEYOND THE CONTROL OF AND WITHOUT THE FAULT OR NEGLIGENCE OF TI. ACCORDINGLY, ITS OFFER WAS OPENED AND CONSIDERED. EXCEPT FOR YOUR ALLEGATIONS THAT TI'S PRICES WERE FURNISHED BY PHONE TO SOME, IF NOT ALL, THE OTHER OFFERORS, THE RECORD DOES NOT REFLECT WHETHER ITS PRICES WERE REVEALED TO OTHER OFFERORS.

BASED UPON THE EVALUATION FACTORS MENTIONED ABOVE, THE OFFERS WERE EVALUATED AS FOLLOWS:

TABLE OMITTED

ALTHOUGH THE CORPS OF ENGINEERS HAD RESERVED IN THE SOLICITATION THE RIGHT TO AWARD A CONTRACT ON AN INITIAL PROPOSAL BASIS WITHOUT FURTHER DISCUSSION OF SUCH OFFERS, IT WAS DETERMINED THAT BECAUSE OF THE SMALL SPREAD IN POINTS BETWEEN TI AND YOUR FIRM, AND BECAUSE OF THE SUBSTANTIAL SPREAD BETWEEN THESE TWO COMPANIES AND THE FOUR OTHER OFFERORS, A FURTHER DEFINITION OF THE TECHNICAL PROPOSALS WOULD BE UNDERTAKEN WITH TI AND EG&G, THE ONLY TWO OFFERORS CONSIDERED TO BE WITHIN THE COMPETITIVE RANGE AS DEFINED BY SECTION 3-805 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). BASED UPON THE SUBSEQUENT DISCUSSIONS WHICH WERE HELD WITH BOTH FIRMS, A REVISED SET OF PERFORMANCE SPECIFICATIONS FOR SENSORS ONLY WAS FURNISHED TI AND EG&G. BOTH OFFERORS, WITHOUT BEING INFORMED OF THE IDENTITY OF THOSE OFFERORS WITH WHOM THE GOVERNMENT WAS STILL NEGOTIATING, WERE GIVEN AN OPPORTUNITY TO "REVISE YOUR PREVIOUSLY SUBMITTED OFFER FOR PRICE SCHEDULE ITEMS NO. 1 THRU 5B INCLUSIVE, IN ACCORDANCE WITH THE REFINED SCOPE OF WORK." OFFERORS WERE ALSO ADVISED THAT "NO REVISION IS NECESSARY FOR ITEMS 6 AND 7" ON WHICH LUMP SUM PRICES HAD BEEN REQUESTED FOR ANNUAL OPERATING AND MAINTENANCE COST (O&M) UNDER ITEM 6, AND FOR COMPUTER COSTS UNDER ITEM 7. THIS PRICE PROPOSAL WAS REQUESTED TO BE SUBMITTED BY NOON ON JUNE 23, 1970, AND THE OFFERORS WERE ADVISED THAT PRICES WERE REQUESTED ON THE MOST FAVORABLE TERMS TO THE GOVERNMENT, AS AWARD MIGHT BE MADE WITHOUT FURTHER DISCUSSION.

THE REVISED PROPOSALS WERE TIMELY RECEIVED AND EVALUATED. BY WEIGHING THE NEW PRICES AND USING THE SAME WEIGHTS GIVEN INITIALLY FOR THE OTHER THREE EVALUATION ITEMS, THE POINTS WERE DISTRIBUTED AS FOLLOWS:

"COST OF SERVICE EST. COST EST. COST TECHNICAL TOTAL

AND HARDWARE OF O&M OF COMPUTERS PROPOSAL POINTS "TI 34.7 8.4 4.0 26.5 73.6 EG&G 27.3 6.8 2.7 36.2 73.0"

BY USING THE NEW PRICES AND COMPARING THE ESTIMATED COSTS OF O&M AND COMPUTERS ONLY BETWEEN THESE TWO OFFERORS, AS COMPARED TO A SCALE SCORING ON ALL OFFERS FOR THESE ITEMS USED IN THE SCORING ABOVE, AND USING THE ORIGINAL POINTS ALLOWED FOR COST OF DELIVERABLE ITEMS AND TECHNICAL PROPOSALS, THE POINT TOTALS WERE 79.2 FOR TI AND 76.7 FOR EG&G. ACCORDINGLY, ON JUNE 24, 1970, AWARD WAS MADE TO TI AS THE LOWEST ACCEPTABLE RESPONSIVE AND RESPONSIBLE OFFEROR.

THE BASIS OF YOUR COMPANY'S PROTEST AGAINST AN AWARD TO TI, AS STATED IN THE LETTER OF JUNE 26, 1970, IS:

A. "BY EXCLUDING ITEM 6 AND ITEM 7 AS THE CORPS DECIDED, EG&G INTERNATIONAL, INC. ACCUMULATED THE HIGHEST POINT TOTAL AND, THUS, IS ENTITLED TO THE AWARD OF THE CONTRACT.

B. "IN THE EVENT THE GOVERNMENT, CONTRARY TO ITS OWN RULES AND PROCEDURES, FAILS TO CONCUR WITH EG&G INTERNATIONAL ON THE FOREGOING GROUNDS, THEN WE DIRECT YOUR ATTENTION TO THE FACT THAT THIS PROCUREMENT HAS BEEN CONDUCTED AS AN AUCTION AND CLEARLY IN VIOLATION OF ASPR 3- 805.1(B)."

IN SUPPORT OF YOUR FIRST CONTENTION YOU HAVE ASSERTED THAT, AT A MEETING HELD ON JUNE 18, 1970, BETWEEN PERSONNEL OF THE CORPS AND YOUR OFFICE, YOUR EMPLOYEES WERE INFORMED, AMONG OTHER THINGS, THAT THE GENERAL ELECTRIC COMPANY'S COMPUTER AND OTHER ASSOCIATED ITEMS (SCHEDULE ITEM 7) WERE NOT TO BE A PART OF ANY CONTRACT AWARDED, AND AS A CONSEQUENCE THEY WOULD NOT BE CONSIDERED IN THE EVALUATION OF NEW PRICE PROPOSALS BEING SOLICITED. ALSO, SINCE THE CORPS HAD FOUND THAT THERE WAS A GREAT DISPARITY IN THE ORIGINAL OFFERS FOR SCHEDULE ITEM 6, AND IT WAS NECESSARY TO NORMALIZE THE PRICES IN SOME WAY SO AS TO DETERMINE WHAT THE OFFERORS' PRICES ACTUALLY INCLUDED, THE CORPS DECIDED THAT THE COST OF OPERATION AND MAINTENANCE (ITEM 6) WOULD NOT BE INCLUDED IN THE NEW PRICE PROPOSALS. ADDITION TO AFFIDAVITS ATTACHED TO YOUR LETTER, YOU REFER TO THE EARLIER REFERENCED LETTER OF JUNE 18, 1970, FROM THE CONTRACTING OFFICER, WHICH STATED "NO REVISION IS NECESSARY FOR ITEMS 6 AND 7," AS ADDITIONAL EVIDENCE SUPPORTING YOUR FIRST ARGUMENT.

IN RESPONSE TO THIS CONTENTION, IT HAS BEEN ADMINISTRATIVELY REPORTED:

"THE ONLY BASIS UPON WHICH EG&G WOULD EMERGE WITH A HIGHEST POINT TOTAL WOULD BE TO ELIMINATE THE WEIGHTS GIVEN FOR THE ESTIMATED COSTS OF O&M AND THE COMPUTERS LEAVING FOR CONSIDERATION ONLY THE REVISED PRICES AND THE POINTS ORIGINALLY EARNED FOR THE TECHNICAL PROPOSALS. *** THE RESULTANT POINT SCORES WOULD BE 63.5 FOR EG&G AND 61.2 FOR TEXAS INSTRUMENTS, WITH EG&G BEING THE BEST. THIS METHOD OF EVALUATION WAS NOT CONSIDERED BY THE DISTRICT ENGINEER.

"MR. HODSON IS ALLEGED TO HAVE STATED THAT THE GE COMPUTER WOULD NOT BE AVAILABLE AND THAT BATCH PROCESSING OF DATA BY THE COMPUTER WOULD NOT BE CONSIDERED. THESE STATEMENTS ARE CORRECT. THE STATEMENT THAT THE PRICE OF THE COMPUTER WOULD NOT BE CONSIDERED IN DETERMINING THE SUCCESSFUL OFFEROR IS A CONCLUSION ARRIVED AT BY THE AFFIANTS AND WAS NEVER MADE BY MR. HODSON.

THE CORPS ADMITS THAT IT WAS NECESSARY TO NORMALIZE THE PRICES OFFERED FOR ITEM 6 BECAUSE OF THE GREAT DISPARITY OF PRICES QUOTED IN THE ORIGINAL OFFERS FOR THIS ITEM, BUT DENIES THAT ANY OF THE GOVERNMENT PERSONNEL STATED THAT THE PRICE FOR O&M WOULD NOT BE CONSIDERED IN DETERMINING THE SUCCESSFUL OFFEROR.

IN ADDITION THE REPORT STATED:

" *** THE EXCLUSION OF ITEMS 6 AND 7 FROM THE LETTERS RESOLICITING PRICES *** IS CORRECT, HOWEVER, AT NO TIME DID THE GOVERNMENT STATE OR INFER THAT THESE TWO ITEMS WOULD NOT BE CONSIDERED IN EVALUATING THE FINAL PRICES. IT SHOULD BE NOTED THAT RE-PRICING ITEMS 1 THROUGH 5B WAS OPTIONAL AND NOTHING PREVENTED A RE-PRICING OF ITEMS 6 AND 7 ALTHOUGH THE GOVERNMENT DID NOT EXPECT IT WOULD BE DONE BY EITHER OFFEROR.

"ON A TOTAL POINT BASIS, ESTABLISHED AFTER OFFERS WERE OPENED ON 1 JUNE 1970, TWO OFFERORS FELL WITHIN THE COMPETITIVE RANGE. THIS ESTABLISHED THAT BOTH OF THE TECHNICAL PROPOSALS WERE ACCEPTABLE TO THE GOVERNMENT PROVIDED CERTAIN REFINEMENTS WERE MADE. THESE REFINEMENTS WERE EXPRESSED IN THE DISCUSSIONS CONDUCTED WHICH IN TURN LED TO THE REVISION OF THE SENSOR REQUIREMENTS. THERE WAS NO BASIC CHANGE IN THE DESIGN OR TECHNICAL APPROACH BUT THERE WERE CHANGES IN THE QUALITY OR TIME OF DELIVERY OF CERTAIN COMPONENTS. SUCH CHANGES WARRANTED A RE PRICING BY THE OFFERORS (SEE ASPR 3-507.2(B)). DESPITE THE FACT THAT CHANGES WERE MADE IN THE SENSOR REQUIREMENTS WHICH WOULD EFFECT THE PRICE, THERE WAS NO CHANGE IN EITHER THE TECHNICAL DESIGN CONCEPTS UPON WHICH 40% OF THE TOTAL POINTS WERE EARNED OR IN ITEMS 6 AND 7. THE VALUES ASSIGNED TO THESE LAST THREE EVALUATION CATEGORIES DURING THE FIRST EVALUATION OF ALL OFFERS REMAINED VALID. EG&G'S REASONS FOR ELIMINATION OF ITEMS 6 AND 7 FROM THE EVALUATION PROCESS WOULD APPLY EQUALLY TO THE ELIMINATION OF THE TECHNICAL PROPOSAL FROM THE EVALUATION LEAVING ONLY PRICES OF ITEMS 1 THROUGH 5B FOR EVALUATION. IF THE RE-PRICED OFFERS ARE TO BE EVALUATED ON ANY BASIS EXCEPT TOTAL PRICE, THE EVALUATION MUST BE COMPLETE AND CONSIDER ALL FACTORS, NOT A SELECTED FEW. *** ."

OUR OFFICE HAS CONSISTENTLY HELD THAT SOUND PROCUREMENT POLICY DICTATES THAT OFFERORS BE INFORMED OF ALL EVALUATION FACTORS AND OF THE RELATIVE IMPORTANCE TO BE ATTACHED TO SUCH FACTORS, 44 COMP. GEN. 439 (1965); 47 COMP. GEN. 252 (1967); 47 ID. 336 (1967). FROM OUR REVIEW OF THE RECORD, WE ARE SATISFIED THAT SUCH POLICY WAS FOLLOWED IN THIS INSTANCE. THE EVALUATION PROCEDURE, AGAINST WHICH NO OBJECTION WAS MADE, ESTABLISHED A COMPETITIVE RANGE WHICH INCLUDED ONLY TI AND EG&G, AND BOTH PROPOSALS WERE EVALUATED ON THE SAME BASIS, USING THE SAME CRITERIA. WHILE THE LETTER OF JUNE 18, 1970, FROM THE CONTRACTING OFFICER TO YOUR FIRM MAY HAVE BEEN INARTFULLY DRAWN, WE CANNOT CONCLUDE THAT THE WORDS "NO REVISION IS NECESSARY FOR ITEMS 6 AND 7" INDICATE THAT ITEMS 6 AND 7 WOULD BE ELIMINATED FROM THE EVALUATION PROCESS.

CONCERNING THE STATEMENTS MADE IN THE AFFIDAVITS YOU HAVE SUBMITTED AS TO THE DISCUSSIONS HELD BETWEEN PERSONNEL OF THE CORPS AND EMPLOYEES OF YOUR COMPANY, IT IS A LONG ESTABLISHED POLICY OF THIS OFFICE TO ACCEPT THE FACTS AS REPORTED TO US BY THE ADMINISTRATIVE OFFICE WHEN THERE IS A DISPUTED QUESTION OF FACT, IN THE ABSENCE OF EVIDENCE SUFFICIENTLY CONVINCING TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF. COMP. GEN. 568 (1958). WE FIND NO SUCH EVIDENCE HERE. IN ANY EVENT, THE SOLICITATION ITSELF MUST BE CONSIDERED AS CONTROLLING THE BASIS UPON WHICH OFFERS WILL BE EVALUATED. NOTWITHSTANDING THAT YOU MAY HAVE HAD REASON TO BELIEVE OFFERS WOULD BE EVALUATED IN A MANNER CONTRARY TO THE ONE STATED IN THE SOLICITATION, NO WRITTEN AMENDMENT WAS ISSUED, AND ORAL EXPLANATIONS OR INSTRUCTIONS WHICH MAY HAVE BEEN GIVEN TO YOUR REPRESENTATIVES PRIOR TO AWARD WOULD NOT BE BINDING ON THE GOVERNMENT. SEE ASPR 2-208(C) AND PARAGRAPH 3 OF STANDARD FORM 33A MADE A PART OF THIS SOLICITATION. IN VIEW THEREOF, WE MUST CONCLUDE THAT THE CORPS PROPERLY INCLUDED ITEMS 6 AND 7 IN THE FINAL EVALUATION OF OFFERS. WITH REGARD TO YOUR CONTENTION THAT THIS PROCUREMENT EMPLOYED AUCTION TECHNIQUES, YOU ALLEGE ON PAGE 4 OF YOUR JUNE 26 LETTER:

"ON JUNE 15, 1970, THE CORPS DISCLOSED TO EG&G INTERNATIONAL, AND PRESUMABLY TO EACH OF THE OTHER OFFERORS, THE POINT TOTAL AND BREAKDOWN OF EACH OF THE THREE OFFERORS WHO ATTAINED THE HIGHEST POINT TOTALS. THIS INDICATED THAT, IN ANY NEGOTIATIONS TO BE CONDUCTED BY THE CORPS, EACH OF THE THREE HIGHEST POINT OFFERORS KNEW WHERE AND HOW THEY MUST ADJUST THEIR PRICES TO BE THE 'LOWEST ACCEPTABLE OFFEROR.'"

WHILE ADMITTING THAT THE PROPOSALS WERE PUBLICLY OPENED AND THE PRICES DISCLOSED ON JUNE 1, 1970, THE DEPARTMENT OF THE ARMY IN ITS REPORT TO OUR OFFICE STATED IN PART:

" *** THE SECOND FULL PARAGRAPH ON PAGE 4 OF THE EG&G LETTER CONTAINS STATEMENTS WHICH ARE IN ERROR OR CANNOT BE VERIFIED. THE IDENTITY OF THE CORPS OF ENGINEERS PERSONNEL WHO ALLEGEDLY FURNISHED THE POINT TOTALS AND BREAKDOWN TO EG&G ON 15 JUNE 1970 CANNOT BE ASCERTAINED, THUS THE ASSERTION CANNOT BE VERIFIED. ONLY TWO OFFERORS, TEXAS INSTRUMENTS AND EG&G, WERE CONSIDERED TO BE IN THE COMPETITIVE RANGE AND FURTHER DEALINGS WERE CONDUCTED WITH ONLY THOSE TWO OFFERORS. EG&G'S MENTION OF THREE OFFERORS IS NOT CLEAR AND CANNOT BE ANSWERED. IT APPEARS THAT THIS IS EITHER AN ERROR OR MISINFORMATION ON THE PART OF EG&G. THE STATEMENTS THAT THREE OFFERORS KNEW WHERE AND HOW TO ADJUST THEIR PRICES IS A DESCRIPTION OF THE STATE OF MIND OF EG&G AND CANNOT BE ACCEPTED AS APPLICABLE TO ANY OTHER OFFEROR. "DURING A TELEPHONE CONVERSATION WITH MR. WILLIAM REED OF EG&G ON THE MORNING OF 24 JUNE 1970, MR. ALLAN AARON DID INFORM MR. REED OF THE FINAL PRICES OFFERED BY TEXAS INSTRUMENTS AND MR. REED ASKED MR. AARON IF THE LAST OFFERS WERE BEING EVALUATED ON THE BASIS OF PARAGRAPH 3 OF THE RFP. MR. AARON ANSWERED THAT THEY WERE. LATER IN THE DAY AT ABOUT 2:30 P.M., MR. REED AGAIN CALLED MR. AARON AND WAS INFORMED THAT AWARD HAD BEEN MADE TO TEXAS INSTRUMENTS. MR. REED ASKED FOR AND WAS FURNISHED THE GENERAL OUTLINE OF BOTH THE PRICES AND THE GENERAL POINT TOTALS WITHOUT DETAILED BREAKDOWNS. *** . "DESPITE ITS CURRENT OBJECTIONS TO THE ALLEGED AUCTIONING PROCEDURE, EG&G PARTICIPATED WITHOUT OBJECTION UNTIL IT BECAME APPARENT IT WAS NOT ABLE TO SURPASS THE TEXAS INSTRUMENTS OFFER FROM A PRICE OR POINT STANDPOINT. THE EG&G TELEGRAPHIC RE-PRICING PROPOSAL DID NOT CONTAIN ANY PROTEST OR OBJECTION BASED ON AUCTIONING. IF, IN FACT, EG&G DID SECURE THE POINT INFORMATION ON THE 15TH OF JUNE, AS ALLEGED, IT WAS AN ACT ON THEIR PART TO SECURE INFORMATION FOR THEIR OWN PURPOSES AND ADVANTAGE. THERE IS NO PROOF THAT OTHERS SOUGHT THE SAME INFORMATION. WITHOUT SUCH INFORMATION, OFFERORS WERE AWARE OF ONLY 60% OF THE EVALUATION BASED ON TECHNICAL PROPOSALS COULD NOT BE ASCERTAINED FROM ANY SOURCE OTHER THAN GOVERNMENT PERSONNEL. AS STATED, THE PERSON WHO ALLEGEDLY DISCLOSED SUCH INFORMATION IS UNKNOWN. THE SIMPLE FACT IS THAT EG&G WAS UNABLE TO USE THE GLEANED INFORMATION TO ITS OWN ADVANTAGE AND NOW PROTESTS AGAINST THE ENTIRE PROCEDURE. "*** REGARDLESS OF WHETHER AN AUCTION EXISTED OR NOT, IT WAS TO THE SOLE ADVANTAGE OF EG&G AND TO THE DETRIMENT OF TEXAS INSTRUMENTS. IT APPEARS THAT THIS PORTION OF THE EG&G PROTEST IS AN ATTEMPT TO CONTINUE ITS ADVANTAGEOUS POSITION OVER TEXAS INSTRUMENTS TO THE DETRIMENT OF THE GOVERNMENT SOLELY BECAUSE IT FAILED OR WAS UNABLE TO TAKE FULL ADVANTAGE OF THE PRIOR OPPORTUNITY TO DO SO."

THE DISCLOSURE OF PRICES DURING THE NEGOTIATION PERIOD IS PROHIBITED BY ASPR 3-805.1(B), AND OUR DECISION B-151976, OCTOBER 15, 1963, CITED IN YOUR LETTER DID HOLD THAT THE REVELATION OF THE IDENTITY OF THE OFFEROR AND THE PRICES QUOTED DURING NEGOTIATIONS WAS HIGHLY IMPROPER. IN VIEW THEREOF, AND SINCE A DISCLOSURE OF PRICES AT ANY STAGE OF A NEGOTIATED PROCUREMENT IS CLEARLY PROHIBITED, WE ARE TODAY ADVISING THE AGENCY TO TAKE APPROPRIATE ACTION TO PREVENT SUCH A DISCLOSURE IN FUTURE PROCUREMENTS. HOWEVER, IN VIEW OF ALL OF THE CIRCUMSTANCES, IT WOULD APPEAR THAT ANY COMPETITIVE ADVANTAGE WHICH MAY HAVE RESULTED FROM THE NEGOTIATOR'S ACTION ACCRUED TO YOUR COMPANY, AND WHILE YOU APPARENTLY UNDERSTIMATED THE PRICE REDUCTION REQUIRED TO MAKE YOUR OFFER LOW, WE ARE UNABLE TO ATTRIBUTE SUCH MISCALCULATION TO ANY ACT OF THE GOVERNMENT, OR TO CONCLUDE THAT ANY EVILS OF AN AUCTION, REAL OR IMAGINED, WERE PRESENT IN THIS PROCUREMENT.

FOR THE FOREGOING REASONS, YOUR PROTEST IS DENIED.