B-170449(1), NOV. 17, 1970

B-170449(1): Nov 17, 1970

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BID PROTEST DENIAL OF PROTEST AGAINST AWARD OF NEGOTIATED CONTRACT FOR 10 VEHICULAR ANTENNAE FOR ARMY ELECTRONICS COMMAND TO AVCO CORPORATION ON BASIS THAT PROTESTANT SHOULD HAVE BEEN IN THE COMPETITIVE RANGE AND THAT SOLICITATION WAS DEFECTIVE. WHERE PROTESTANT'S PROPOSAL WAS CONSIDERABLY BELOW THE NUMERICAL CUTOFF POINT THAT WAS ESTABLISHED AND SUBSEQUENT INQUIRY BY THE CONTRACTING OFFICER CONFIRMED THE VALIDITY OF THE POINT SCORE ON WHICH THE UNACCEPTABILITY WAS BASED. FARTHER NEGOTIATION WAS NOT REQUIRED AND THERE DOES NOT APPEAR TO BE ANY BASIS TO DISTURB THE TECHNICAL EVALUATION. WITH RESPECT TO CONTENTION THAT SOLICITATION SHOULD HAVE PROVIDED OFFERORS WITH THE POINT VALUE OF EACH VALUATION CRITERION.

B-170449(1), NOV. 17, 1970

BID PROTEST DENIAL OF PROTEST AGAINST AWARD OF NEGOTIATED CONTRACT FOR 10 VEHICULAR ANTENNAE FOR ARMY ELECTRONICS COMMAND TO AVCO CORPORATION ON BASIS THAT PROTESTANT SHOULD HAVE BEEN IN THE COMPETITIVE RANGE AND THAT SOLICITATION WAS DEFECTIVE. WHERE PROTESTANT'S PROPOSAL WAS CONSIDERABLY BELOW THE NUMERICAL CUTOFF POINT THAT WAS ESTABLISHED AND SUBSEQUENT INQUIRY BY THE CONTRACTING OFFICER CONFIRMED THE VALIDITY OF THE POINT SCORE ON WHICH THE UNACCEPTABILITY WAS BASED, FARTHER NEGOTIATION WAS NOT REQUIRED AND THERE DOES NOT APPEAR TO BE ANY BASIS TO DISTURB THE TECHNICAL EVALUATION. WITH RESPECT TO CONTENTION THAT SOLICITATION SHOULD HAVE PROVIDED OFFERORS WITH THE POINT VALUE OF EACH VALUATION CRITERION, THE PROCURING AGENCY SOUGHT TO ACCOMPLISH THIS BY RANKING CRITERIA IN TERMS OF "PRIMARY" "SECONDARY" AND NEXT IN IMPORTANCE. ALTHOUGH THE SOLICITATION COULD HAVE BEEN MORE PRECISE THE DEFICIENCIES ARE NOT SUFFICIENTLY MATERIAL TO WARRANT REMEDIAL ACTION.

TO WACHTEL, WIENER & ROSS:

REFERENCE IS MADE TO YOUR LETTERS OF JULY 24, 1970, AND OCTOBER 9, 1970, ON BEHALF OF LAPOINTE INDUSTRIES, INC., PROTESTING THE AWARD OF A CONTRACT TO AVCO CORPORATION UNDER REQUEST FOR PROPOSALS (RFP) NO. DAAB07-70-Q- 0347, ISSUED BY THE ARMY ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY.

THE ABOVE-REFERENCED SOLICITATION WAS ISSUED ON APRIL 6, 1970, AND REQUESTED PROPOSALS FOR TEN VEHICULAR ANTENNAE, ADVANCED DEVELOPMENT MODEL (FEASIBILITY TYPE), IN ACCORDANCE WITH A DEVELOPMENT DESCRIPTION MADE A PART OF THE RFP. THE PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY "SYNOPSIS OF U.S. GOVERNMENT PROPOSED PROCUREMENT, SALES AND CONTRACT AWARDS" AND 97 FIRMS WERE SOLICITED. THE FOLLOWING TIMELY PROPOSALS WERE RECEIVED:

A J ASSOCIATES, INC. $ 44,894.00

GENERAL DYNAMICS 69,807.00

AMERICAN ELECTRONIC LABS. 57,610.00

COMMUNICATION COMPONENT CORP. 27,036.00

RADIATION SYSTEMS59,383.00

LAPOINTE INDUSTRIES 17,511.32

AVCO ELECTRONIC DIV.

PROPOSAL NO. 1 86,495.00

PROPOSAL NO. 2 117,631.00

COLLINS RADIO CO. 90,372.00 AVCO'S PROPOSAL NO. 1 WAS DIRECTED TO THE REQUIREMENTS OF THIS SOLICITATION WHILE ITS PROPOSAL NO. 2 WAS REPRESENTED AS OFFERING BENEFITS BEYOND THOSE SOUGHT BY THE INSTANT PROCUREMENT. ADDITIONALLY, A LATE PROPOSAL IN THE AMOUNT OF $40,580 WAS RECEIVED FROM HY GAIN ELECTRONICS.

THE TECHNICAL PROPOSALS OF THE EIGHT TIMELY OFFERORS WERE SUBMITTED TO A FOUR-MAN TEAM FOR TECHNICAL EVALUATION UNDER CRITERIA ESTABLISHED BEFORE THE ISSUANCE OF THE SOLICITATION. THE EVALUATION TEAM CONCLUDED THAT THE ONLY TECHNICALLY ACCEPTABLE PROPOSALS WERE THOSE OF AVCO AND GENERAL DYNAMICS. COLLINS RADIO AND LAPOINTE WERE RANKED THIRD AND FOURTH, RESPECTIVELY. UPON RECEIPT OF THE EVALUATION TEAM'S CONCLUSIONS, THE CONTRACTING OFFICER DISCUSSED WITH THE PROJECT ENGINEER THE REASONS FOR THE REJECTION OF COLLINS RADIO AND YOUR FIRM. HOWEVER, UPON REEXAMINATION IT WAS CONFIRMED THAT ONLY AVCO AND GENERAL DYNAMICS WERE WITHIN A COMPETITIVE TECHNICAL RANGE, AND NEGOTIATIONS WERE THEREFORE LIMITED TO THEM. AWARD WAS MADE TO AVCO ON JUNE 30, 1970, IN THE AMOUNT OF $57,274.

YOU MAKE THREE PRINCIPAL CONTENTIONS IN SUPPORT OF YOUR CONCLUSION THAT THE CONTRACT WAS ILLEGALLY AWARDED TO AVCO AND SHOULD BE CANCELED. FIRST, YOU CONTEND THAT THE PROCURING ACTIVITY FAILED TO SATISFY THE REQUIREMENTS OF 10 U.S.C. 2304(G) THAT:

" *** WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE, AND OTHER FACTORS CONSIDERED *** ."

RELYING UPON 50 COMP. GEN. (B-169645, JULY 24, 1970), YOU MAINTAIN THAT DISCUSSIONS WERE NOT CONDUCTED WITH ALL RESPONSIBLE OFFERORS WITHIN A COMPETITIVE RANGE BECAUSE THE "COMPETITIVE RANGE" WAS IMPROPERLY DEFINED. THE ABOVE-CITED DECISION CONCERNED A PROCUREMENT IN WHICH TECHNICAL PROPOSALS WERE ASSIGNED NUMERICAL SOURCES BY AN EVALUATION TEAM UNDER A SYSTEM WHICH LIMITED THE COMPETITIVE RANGE TO THOSE PROPOSALS WHICH RECEIVED A SCORE OF 75 OR ABOVE. ALL PROPOSALS WHICH WERE ASSIGNED SCORES BELOW 75 WERE AUTOMATICALLY EXCLUDED FROM FURTHER CONSIDERATION. IN OUR DECISION TO THE SECRETARY OF TRANSPORTATION, WE STATED:

" *** ALTHOUGH (THE PROTESTER'S) PROPOSAL MAY, OR MAY NOT, HAVE BEEN WITHIN A COMPETITIVE RANGE OF THE TWO ACCEPTABLE PROPOSALS, WE HAVE SERIOUS RESERVATIONS THAT A DECISION IN SUCH RESPECT BASED ON A COMPARISON OF AN OFFEROR'S SCORE WITH A PREDETERMINED SCORE FOR ACCEPTABILITY CONSTITUTES A PROPER METHOD OF DETERMINING WHICH PROPOSALS ARE WITHIN A 'COMPETITIVE RANGE,' OR THAT SUCH A METHOD IS CONDUCIVE TO OBTAINING THE MAXIMUM PRACTICABLE COMPETITION CONTEMPLATED BY THE STATUTES AND REGULATIONS. THIS WOULD APPEAR TO BE ESPECIALLY APPLICABLE IN SITUATIONS SUCH AS THE INSTANT PROCUREMENT IN WHICH FIVE OFFERORS WITH SCORES RANGING FROM 71.4 TO 74.8 WERE CONSIDERED OUTSIDE THE COMPETITIVE RANGE. *** "

IN THE INSTANT PROCUREMENT, AN EVALUATION TEAM SCORED THE TECHNICAL PROPOSALS AGAINST CRITERIA ESTABLISHED BEFORE THE ISSUANCE OF THE SOLICITATION. A SCORE OF 80 WAS INITIALLY ESTABLISHED AS THE CUTOFF POINT FOR THE TECHNICAL ACCEPTABILITY OF PROPOSALS. HOWEVER, WE NOTE THAT IN TRANSMITTING THE TECHNICAL PROPOSALS FOR EVALUATION, THE CONTRACTING OFFICER STATED:

"IF BIDDERS ARE DETERMINED TO BE TECHNICALLY UNACCEPTABLE (WITH A SCORE BELOW, BUT REASONABLY CLOSE TO THE INITIALLY ESTABLISHED CUT-OFF POINT), THEN IT IS REQUIRED THAT I BE FURNISHED INFORMATION AND DETAILS NECESSARY TO CONDUCT FRUITFUL NEGOTIATIONS WITH THESE OFFERORS."

THE EVALUATORS CONCLUDED THAT THE PROPOSALS OF AVCO AND GENERAL DYNAMICS, WHICH RECEIVED SCORES OF 95 AND 85, RESPECTIVELY, WERE TECHNICALLY ACCEPTABLE WHILE ALL OTHER OFFERORS (INCLUDING LAPOINTE, WHICH RANKED FOURTH WITH A SCORE OF 67) WERE TECHNICALLY UNACCEPTABLE. IN THE PROCUREMENT WHICH WAS THE SUBJECT OF OUR DECISION 50 COMP. GEN. (B-169645, JULY 24, 1970), IT WAS AT THIS POINT IN THE EVALUATION PROCESS THAT THE FINAL DETERMINATION AS WHICH OFFERS WERE WITHIN COMPETITIVE TECHNICAL RANGE WAS MADE. HOWEVER, IN THE INSTANT CASE THE RECORD SHOWS THAT UPON RECEIPT OF THE EVALUATORS' REPORT, THE CONTRACTING OFFICER REQUIRED FURTHER EXPLANATION OF THEIR CONCLUSIONS REGARDING THE THIRD-RANKED OFFEROR AND LAPOINTE. WITH RESPECT TO LAPOINTE, THE CONTRACTING OFFICER INQUIRED:

"A. WHY LAPOINTE WAS GIVEN ONLY 2/3 CREDIT FOR COMPANY EXPERIENCE IN LIGHT OF THE FACT THAT IT CURRENTLY PRODUCES THE AS-1729/VRC ANTENNA;

"B. WHY LAPOINTE WAS DEEMED DEFICIENT IN ITS DELIVERY SCHEDULE AND ITS ESTIMATE OF ENGINEERING MAN-HOURS, THIS LATTER DEFICIENCY EVEN THOUGH THE FIRM EXPLICITLY ATTEMPTS TO JUSTIFY BUDGETED MAN-HOURS BY REFERENCING ITS AS-1729/VRC PRODUCTION EXPERIENCE." THE EVALUATORS RESPONDED:

"(A) LAPOINTE WAS GIVEN A RATING OF 10 FOR COMPANY EXPERIENCE BECAUSE THEY DID NOT SHOW ANY PRODUCTS IN THE VHF FREQUENCY RANGE THAT THEY HAD PREVIOUSLY DEVELOPED. ANTENNA AS-1729/VRC IS PRESENTLY BEING PRODUCED BY LAPOINTE, BUT WAS NOT DEVELOPED BY LAPOINTE.

"(B) ALTHOUGH LAPOINTE IS PRESENTLY MANUFACTURING ANTENNA AS 1729/VRC WE FEEL THAT ONE HALF (1/2) MAN YEAR OF EFFORT AS INDICATED IN THE PROPOSAL IS NOT CONSIDERED ADEQUATE TO COMPLY WITH ALL THE TECHNICAL REQUIREMENTS OF THE RFQ. DELIVERY OF A NUMBER OF ITEMS BEYOND THE 14 MONTH LIMITATIONS STATED IN THE RFQ IS NOT SATISFACTORY OR REASONABLE WITH LESS THAN ONE HALF (1/2) MAN YEAR EFFORT." THE EVALUATION TEAM ALSO EXPRESSED THE OPINION THAT THOSE PROPOSALS WHICH RECEIVED SCORES OF LESS THAN 80 SHOULD NOT RECEIVE FURTHER CONSIDERATION FOR AWARD OF THE CONTRACT.

UNLIKE THE PROCUREMENT INVOLVED IN OUR DECISION 50 COMP. GEN. (B 169645, JULY 24, 1970), THE PRESENT RECORD DOES NOT SUPPORT A CONCLUSION THAT THE SELECTION OF OFFERORS WITHIN A COMPETITIVE RANGE WAS BASED UPON AN INFLEXIBLE ADHERENCE TO A PREDETERMINED SCORE. RATHER, THE CONTRACTING OFFICER EXPRESSED HIS INTENTION TO NEGOTIATE WITH THOSE OFFERORS "WITH A SCORE BELOW, BUT REASONABLY CLOSE TO THE INITIALLY ESTABLISHED CUTOFF POINT." WE DO NOT BELIEVE WE ARE IN A POSITION TO DISTURB THE TECHNICAL DETERMINATION THAT LAPOINTE WAS NOT IN A COMPETITIVE RANGE, SINCE LAPOINTE'S SCORE WAS CONSIDERABLY BELOW THE CUTOFF POINT AND SUBSEQUENT INQUIRY BY THE CONTRACTING OFFICER CONFIRMED THE VALIDITY OF THE POINT SCORE ON WHICH THE UNACCEPTABILITY OF LAPOINTE'S PROPOSAL WAS BASED.

YOUR SECOND PRINCIPAL CONTENTION IS THAT THE SOLICITATION WAS DEFECTIVE IN THAT IT FAILED TO INFORM OFFERORS OF THE EVALUATION CRITERIA APPLICABLE TO THEIR PROPOSALS AND THE RELATIVE "WEIGHTS" OF THESE CRITERIA. PART III -A, NOTE 5 OF THE SOLICITATION ADVISED OFFERORS:

"TECHNICAL EVALUATION FACTORS. (USE USAECOM CLAUSE 516A1 CITING THE FOLLOWING FACTORS:

PRIMARY IMPORTANCE - PARAGRAPH A SECONDARY IMPORTANCE - PARAGRAPH C AND F - NEXT IN IMPORTANCE IN DESCENDING ORDER - PARAGRAPHS B, D, E" USAECOM CONTRACT CLAUSE 516A-1, JULY 13, 1964, PROVIDES:

"ALL PROPOSALS RECEIVED SHALL BE SUBJECT TO EVALUATION BY A SELECTED TEAM OF QUALIFIED TECHNICAL PERSONNEL. THE GENERAL AREAS CONSIDERED WILL INCLUDE, BUT WILL NOT BE LIMITED TO:

"A. TECHNICAL PROPOSAL (ENGINEERING APPROACH)

"(1) COMPLETENESS: EXTENT TO WHICH TECHNICAL REQUIREMENTS HAVE BEEN CONSIDERED AND ARE DEFINED AND SATISFIED, RATING EACH PROPOSAL STRICTLY IN ACCORDANCE WITH ITS WRITTEN CONTENT. ALTHOUGH AN OFFEROR MAY BE TECHNICALLY PREDOMINANT IN THE SPECIFIC TECHNOLOGICAL FIELD, THE EVALUATION TEAM CAN NOT ASSUME THAT HIS PERFORMANCE WILL INCLUDE AREAS OF INVESTIGATION OR DEVELOPMENT NOT SPECIFIED IN HIS WRITTEN PROPOSAL.

"(2) UNDERSTANDING OF PROBLEM: EXTENT TO WHICH THE PROPOSAL DEMONSTRATES CLEAR UNDERSTANDING OF ALL TECHNICAL FEATURES INVOLVED IN SOLUTION OF THE PROBLEM.

"(3) FEASIBILITY OF APPROACH: SOUNDNESS AND FEASIBILITY OF APPROACH AND THE EXTENT TO WHICH SUCCESSFUL PERFORMANCE IS CONTINGENT UPON UNTRIED AND UNPROVEN DEVICES AND TECHNIQUES.

"(4) DESIGN: FEASIBILITY OF DESIGN AND EXTENT TO WHICH THE PROPOSED SOLUTION DEMONSTRATES EVIDENCE OF RELIABILITY OR DEPENDS UPON ADVANCEMENT IN THE STATE OF THE ART OR UPON TECHNIQUES WHICH REQUIRE EXCESS DEVELOPMENT.

"(5) TEST: DEGREE TO WHICH TEST PLAN EXHIBITS FEASIBILITY AND DEMONSTRATES ITS ADEQUACY IN ACHIEVING COMPREHENSIVE RESULTS.

"(6) SUPPORT ENGINEERING: EXTENT OF SUPPORT ENGINEERING IN APPLICATION OF VALUE ANALYSIS AND/OR HUMAN FACTORS ENGINEERING PRINCIPLES.

"B. PERSONNEL

AVAILABILITY OF SUFFICIENT PERSONNEL WITH THE REQUIRED SKILL AND EXPERIENCE; EXTENT TO WHICH PERSONNEL FOR ASSIGNMENT TO THE WORK ARE IDENTIFIED BY NAME AND BY SUMMARY OF EXPERIENCE AND BACKGROUND; FIRMNESS OF COMMITMENT OF SUCH PERSONNEL.

"C. COMPANY EXPERIENCE

SUMMARY OF OFFEROR'S PRIOR COMPARABLE EXPERIENCE IN WORK OF THE TYPE CONTEMPLATED; ADEQUACY AND AVAILABILITY OF REQUIRED FACILITIES; CONTRACT MANAGEMENT RECORD.

"D. ENGINEERING MAN-HOURS

SUFFICIENCY AND REASONABLENESS OF OFFEROR'S ESTIMATE OF ENGINEERING MAN- HOURS REQUIRED TO ACCOMPLISH HIS SPECIFIC TECHNICAL APPROACH.

"E. MATERIAL CHARGES

PROPRIETY AND REASONABLENESS OF MATERIAL CHARGES (INCLUDING SUBCONTRACTING) IN RELATION TO OFFEROR'S SPECIFIC TECHNICAL APPROACH.

"F. SCHEDULE AND DELIVERY

OFFEROR'S ABILITY TO MEET THE GOVERNMENT'S TECHNICAL REQUIREMENTS IN THE ALLOTTED TIME-FRAME.

"ADDITIONAL AREAS OF CONSIDERATION IN EVALUATION FOR AWARD WILL INCLUDE OFFEROR'S FINANCIAL STATUS AND CAPABILITY, ESTIMATED COSTS AND FEE OR PROFIT.

THE EVALUATION FACTORS BEAR THE FOLLOWING RELATIVE IMPORTANCE:

PRIMARY IMPORTANCE: PARAGRAPH

SECONDARY IMPORTANCE: PARAGRAPH

NEXT IN IMPORTANCE, IN PARAGRAPHS)

DESCENDING ORDER:

"OFFERORS ARE CAUTIONED THAT THE DATA DESCRIBED ABOVE WILL BE FACTORS IN EVALUATION OF THEIR PROPOSALS."

THE RFP DID NOT DISCLOSE THE MAXIMUM POINT VALUE ASSIGNED TO EACH CRITERION. THE POINT VALUES ACTUALLY USED BY THE EVALUATORS ARE SHOWN BELOW, TOGETHER WITH THE STATEMENT OF THE RELATIVE IMPORTANCE OF THE CRITERIA CONTAINED IN THE RFP: RFP DESCRIPTION TECHNICAL MAXIMUM OF RELATIVE EVALUATION POINT IMPORTANCE CRITERIA

VALUE PRIMARY IMPORTANCE-A A. TECHNICAL PROPOSAL

(ENGINEERING APPROACH) 1. COMPLETENESS

15 2. UNDERSTANDING OF

PROBLEM 15 3.

FEASIBILITY OF APPROACH 10

4. DESIGN 10

5. TEST 0 6. SUPPORT

ENGINEERING 0

50 SECONDARY IMPORTANCE- C & F

C. COMPANY EXPERIENCE 15

F. SCHEDULE AND DELIVERY 15 NEXT IN IMPORTANCE, IN B. PERSONNEL

10 DESCENDING ORDER-B,D,E D. ENGINEERING MAN-HOURS 10

E. MATERIAL CHARGES 0

TOTAL 100

USAECOM CONTRACT CLAUSE 516A-1 STATED THAT "THE GENERAL AREAS CONSIDERED WILL INCLUDE, BUT WILL NOT BE LIMITED TO" THE EVALUATION CRITERIA SET FORTH IN THE SOLICITATION. WE AGREE THAT AN EVALUATION BASED UPON CRITERIA NOT DISCLOSED TO OFFERORS WOULD NOT BE IN ACCORD WITH SOUND PROCUREMENT POLICY. 50 COMP. GEN. (B-169429, AUGUST 21, 1970). HOWEVER, IN THE INSTANT CASE IT APPEARS THAT THE EVALUATORS CONSIDERED ONLY THOSE CRITERIA CONTAINED IN THE RFP.

YOU ALSO MAINTAIN THAT THE SOLICITATION SHOULD HAVE PROVIDED OFFERORS WITH THE POINT VALUE OF EACH EVALUATION CRITERION. WHILE THIS IS AN ACCEPTABLE METHOD OF CONVEYING TO OFFERORS THE RELATIVE IMPORTANCE OF EVALUATION CRITERIA (SEE B-170142, OCTOBER 22, 1970), IT IS NOT A REQUIRED METHOD. RATHER, IT HAS BEEN OUR POSITION THAT OFFERORS SHOULD BE INFORMED OF "THE BROAD SCHEME OF SCORING TO BE EMPLOYED" AND "REASONABLY DEFINITE INFORMATION AS TO THE DEGREE OF IMPORTANCE TO BE ACCORDED TO PARTICULAR FACTORS IN RELATION TO EACH OTHER." 49 COMP. GEN. 229, 230-231 (1969). THE PROCURING ACTIVITY SOUGHT TO ACCOMPLISH THIS BY RANKING CRITERIA IN TERMS OF "PRIMARY IMPORTANCE," "SECONDARY IMPORTANCE," AND "NEXT IN IMPORTANCE IN DESCENDING ORDER," AND THE ACTUAL EVALUATION FOLLOWED THE RANKING SET FORTH IN THE SOLICITATION. A MORE PRECISE INDICATION OF THE RELATIVE IMPORTANCE OF THE CRITERIA CONTAINED IN USAECOM CONTRACT CLAUSE 516A-1 COULD HAVE BEEN OBTAINED IF CRITERIA A.5., A.6., AND E. (EACH OF WHICH WERE ASSIGNED A ZERO POINT VALUE) HAD BEEN EITHER DELETED FROM THE CLAUSE OR ASSIGNED A POINT VALUE, AND IF IT HAD BEEN INDICATED THAT CRITERIA B. AND D. WERE OF EQUAL IMPORTANCE. HOWEVER, WE DO NOT BELIEVE THESE DEFICIENCIES ARE SUFFICIENTLY MATERIAL TO WARRANT REMEDIAL ACTION BY OUR OFFICE.

YOUR THIRD CONTENTION IS THAT THE TECHNICAL EVALUATION WAS DEFICIENT AND THAT THE TECHNICAL REASONS ADVANCED FOR THE REJECTION OF LAPOINTE'S PROPOSAL WERE MINOR AND COULD EASILY HAVE BEEN RESOLVED THROUGH DISCUSSIONS. THERE IS SUBSTANTIAL DISAGREEMENT BETWEEN LAPOINTE AND THE PROCURING ACTIVITY CONCERNING THE SIGNIFICANCE OF THE SIX DEFICIENCIES IN LAPOINTE'S PROPOSAL IDENTIFIED BY THE EVALUATION TEAM. IN VIEW OF THE TECHNICAL NATURE OF THESE DIFFERENCES AND OUR LACK OF EXPERTISE IN THIS AREA, THIS OFFICE IS REQUIRED TO ACCEPT THE POSITION OF THE CONTRACTING AGENCY IN THE ABSENCE OF A CLEAR SHOWING IT IS IN ERROR. BASED UPON THE PRESENT RECORD WE ARE UNABLE TO DISAGREE WITH THE CONTRACTING AGENCY'S DETERMINATION THAT THE DEFICIENCIES IN LAPOINTE'S PROPOSAL WERE SUCH THAT DISCUSSIONS COULD NOT BE EXPECTED TO RESULT IN A TECHNICALLY ACCEPTABLE PROPOSAL.

YOU ALSO HAVE EMPHASIZED THAT THE INSTANT SOLICITATION DID NOT ADVISE OFFERORS OF THE POSSIBILITY THAT AWARD MIGHT BE MADE WITHOUT DISCUSSION OF PROPOSALS RECEIVED. WE DO NOT BELIEVE THAT LAPOINTE WAS PREJUDICED BY THE LACK OF SUCH NOTICE, SINCE IT WAS NOT ONE OF THE OFFERORS WHO SUBMITTED A PROPOSAL WITHIN THE COMPETITIVE RANGE AND WITH WHOM DISCUSSIONS ARE REQUIRED, EXCEPT UNDER THE CIRCUMSTANCES SET OUT IN PARAGRAPH 3-805.1(A) OF THE ARMED SERVICES PROCUREMENT REGULATION. IN ANY EVENT, THE AWARD TO AVCO WAS MADE NOT ON THE BASIS OF ITS INITIAL PROPOSAL BUT UPON ITS REVISED PROPOSAL SUBMITTED IN RESPONSE TO NEGOTIATIONS WHICH WERE CONDUCTED WITH ALL OFFERORS WITHIN THE COMPETITIVE RANGE.

FOR THE FOREGOING REASONS, YOUR PROTEST MUST BE DENIED.