B-170461, MAY 11, 1971

B-170461: May 11, 1971

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AN RFP FOR RESEARCH AND DEVELOPMENT IS SUCH THAT FORMAL ADVERTISING WITH THE DETAILED AND PRECISE SPECIFICATIONS AS REQUIRED BY 10 U.S.C. 2305(B) IS NEITHER FEASABLE NOR PRACTICABLE. BECAUSE POTENTIAL OFFERORS WERE AFFORDED THE OPPORTUNITY AT THE PREPROPOSAL CONFERENCE TO RAISE QUESTIONS CONCERNING THE REQUIREMENTS. FULL AND FREE COMPETITION WAS PROVIDED. TO FINKELSTEIN AND MUETH FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF SPECIAL DEVICES. THE GENERAL SCOPE OF WHICH IS SET FORTH IN THE SCHEDULE AS FOLLOWS: "ALL-ALTITUDE SPIN PROJECTED MUNITION (ASP) "1.0 INTRODUCTION. HIGHER RELEASE ALTITUDES COUPLED WITH SELF-DISPERSING SUBMUNITIONS WILL PROVIDE WIDER PATTERNS BUT PATTERN SIZE AND/OR SUBMUNITION DENSITY.

B-170461, MAY 11, 1971

BID PROTEST - COMPETITION DECISION DENYING PROTEST AGAINST THE PROCUREMENT PROCEDURES INVOLVED IN AN RFP ISSUED BY THE ARMAMENT DEVELOPMENT AND TEST CENTER, EGLIN AFB, FLORIDA, FOR TECHNICAL PROPOSALS FOR DESIGN DEVELOPMENT, FABRICATION AND QUALIFICATION TESTING OF AN ALL-ALTITUDE SPIN PROJECTED MUNITION. AN RFP FOR RESEARCH AND DEVELOPMENT IS SUCH THAT FORMAL ADVERTISING WITH THE DETAILED AND PRECISE SPECIFICATIONS AS REQUIRED BY 10 U.S.C. 2305(B) IS NEITHER FEASABLE NOR PRACTICABLE. FURTHER, BECAUSE POTENTIAL OFFERORS WERE AFFORDED THE OPPORTUNITY AT THE PREPROPOSAL CONFERENCE TO RAISE QUESTIONS CONCERNING THE REQUIREMENTS, FULL AND FREE COMPETITION WAS PROVIDED.

TO FINKELSTEIN AND MUETH

FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF SPECIAL DEVICES, INCORPORATED, AGAINST THE PROCUREMENT PROCEDURES INVOLVED IN REQUEST FOR PROPOSALS NO. F08635-70-R-0113, ISSUED BY THE ARMAMENT DEVELOPMENT AND TEST CENTER, EGLIN AIR FORCE BASE, FLORIDA.

THE SOLICITATION REQUESTED TECHNICAL PROPOSALS TO BE SUBMITTED ON PERFORMING CERTAIN WORK, THE GENERAL SCOPE OF WHICH IS SET FORTH IN THE SCHEDULE AS FOLLOWS:

"ALL-ALTITUDE SPIN PROJECTED MUNITION (ASP)

"1.0 INTRODUCTION. PRESENT LINEAR MUNITION DISPENSERS SUCH AS THE SUU- 13/A AND SUU-37/A DELIVER SUBMUNITIONS IN LONG, NARROW GROUND PATTERNS WHEN DISPERSED FROM LOW ALTITUDES. HIGHER RELEASE ALTITUDES COUPLED WITH SELF-DISPERSING SUBMUNITIONS WILL PROVIDE WIDER PATTERNS BUT PATTERN SIZE AND/OR SUBMUNITION DENSITY, FOR OPTIMUM EFFECTIVENESS, CAN ONLY BE ACHIEVED WITHIN A LIMITED RANGE OF RELEASE CONDITIONS. THIS RESTRICTION IS UNDESIRABLE FROM A TACTICAL STANDPOINT. NON-LINEAR DISPENSERS, SUCH AS THE SUU-30/B, DELIVER SELF-DISPERSING SUBMUNITIONS IN A WIDE PATTERN BUT ARE PLAGUED WITH THE UNAVOIDABLE HOLE IN THE MIDDLE OF THE PATTERN. THE ALL-ALTITUDE SPIN PROJECTED MUNITION (ASP) WILL DISPENSE A VARIETY OF SUBMUNITIONS AND ACHIEVE OPTIMUM GROUND PATTERNS INDEPENDENT OF RELEASE CONDITIONS.

"2.0 SCOPE. THIS WILL BE AN ENGINEERING DEVELOPMENT PROGRAM FOR THE DESIGN, DEVELOPMENT, FABRICATION, AND QUALIFICATION TESTING (ENVIRONMENTAL AND COMPONENT FUNCTIONAL TESTS) OF THE ALL-ALTITUDE SPIN PROJECTED MUNITION (ASP). AN AERODYNAMIC ANALYSIS WILL BE ACCOMPLISHED TO DETERMINE THE BEST SHAPE OF THE DISPENSER. THE PROGRAM WILL INCLUDE DEVELOPMENT OF A CONTAINER TO ACCOMMODATE ONE OR MORE ASP AND THE EFFORT WILL CONCLUDE WITH AF FLIGHT EVALUATION TESTS OF COMPLETE MUNITIONS."

THE SOLICITATION ADVISED THAT A PREPROPOSAL CONFERENCE WOULD BE HELD AT EGLIN AIR FORCE BASE AND REQUESTED POTENTIAL CONTRACTORS TO SUBMIT IN WRITING ANY QUESTION THEY MIGHT HAVE CONCERNING THE REQUIREMENTS. THE SOLICITATION ALSO ADVISED THAT THE GOVERNMENT CONTEMPLATED ENTERING INTO A COST-PLUS-INCENTIVE-FEE TYPE CONTRACT FOR THE PERFORMANCE OF THE WORK BUT ALLOWED OFFERORS TO SPECIFY THEIR PREFERENCE AS TO CONTRACT TYPE.

PROPOSALS WERE RECEIVED FROM FIVE FIRMS. THE PROPOSALS WERE EVALUATED AND AS A RESULT IT WAS DETERMINED THAT NEGOTIATIONS SHOULD BE CONDUCTED WITH THREE OF THE PROPOSERS FOUND TO BE WITHIN THE COMPETITIVE RANGE. THE PROPOSALS OF SPECIAL DEVICES AND ANOTHER FIRM WERE DETERMINED TO BE TECHNICALLY INADEQUATE AND OUTSIDE THE COMPETITIVE RANGE.

BY LETTER DATED JULY 18, 1970, YOU CONTENDED THAT THE REQUEST FOR PROPOSALS WAS INVALID AND THAT AN AWARD THEREUNDER WOULD BE ILLEGAL. YOU ASSERT THAT THE REQUEST FOR PROPOSALS IS IN COMPLETE VIOLATION OF TITLE 10, U.S.C. SECTION 2305(B), SINCE IT FAILS TO INCLUDE SUFFICIENT DESCRIPTIVE LANGUAGE AND ATTACHMENTS TO PERMIT FULL AND FREE COMPETITION ON A COMMON BASIS.

THE PROVISIONS OF TITLE 10, U.S.C. SECTIONS 2305 (A) THROUGH (D), AS PROVIDED IN SUBSECTION (A), ARE APPLICABLE WHENEVER FORMAL ADVERTISING IS REQUIRED UNDER SECTION 2304. SINCE THE INSTANT PROCUREMENT IS NEGOTIATED THE REQUIREMENTS OF SECTION 2305 ARE NOT APPLICABLE.

THE STATEMENT OF WORK SET FORTH IN THE SOLICITATION INDICATES A NEED FOR STUDY, DEVELOPMENT, DESIGN, FABRICATION AND TESTING, IN ORDER THAT THE GOVERNMENT MIGHT OBTAIN INFORMATION UNKNOWN TO IT. THEREFORE, IT WAS NOT POSSIBLE FOR THE GOVERNMENT TO FORMULATE PRECISE AND DETAILED SPECIFICATIONS NECESSARY FOR FORMAL ADVERTISING. THE SOLICITATION WAS PREPARED IN ACCORDANCE WITH PART 1, SECTION 4, OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), WHICH APPLIES THE PRINCIPLES PRESCRIBED BY ASPR 3-805.2 WHERE A COST-REIMBURSEMENT TYPE CONTRACT IS PROPOSED.

WHILE A PROCUREMENT MAY BE PROPER FOR NEGOTIATIONS, THE STATEMENT OF WORK SHOULD AS FAR AS POSSIBLE PROVIDE INFORMATION FOR ALL QUALIFIED POTENTIAL OFFERORS TO UNDERSTAND THE GOVERNMENT'S NEEDS. IN THIS CONNECTION ASPR 4- 105(A) PROVIDES:

"THE PREPARATION AND USE OF A CLEAR AND COMPLETE STATEMENT OF WORK IS ESSENTIAL TO SOUND CONTRACTING FOR RESEARCH AND DEVELOPMENT. IN RESEARCH, EXPLORATORY DEVELOPMENT AND ADVANCED DEVELOPMENT, STATEMENTS OF WORK MUST BE INDIVIDUALLY TAILORED BY TECHNICAL AND CONTRACTING PERSONNEL TO ATTAIN THE DESIRED DEGREE OF FLEXIBILITY FOR CONTRACTOR CREATIVITY, BOTH IN SUBMITTING PROPOSALS AND IN CONTRACT PERFORMANCE. CAREFUL DISTINCTION MUST BE DRAWN BETWEEN LEVEL-OF-EFFORT WORK STATEMENTS, WHICH ESSENTIALLY REQUIRE THE FURNISHING OF TECHNICAL EFFORT AND A REPORT ON THE RESULTS THEREOF, AND TASK COMPLETION TYPE WORK STATEMENTS WHICH OFTEN REQUIRE DEVELOPMENT OF TANGIBLE END ITEMS DESIGNED TO MEET SPECIFIC PERFORMANCE CHARACTERISTICS."

IT IS REPORTED THAT THE STATEMENT OF WORK AND INFORMATION FURNISHED IN THE REQUEST FOR PROPOSALS ARE CONSIDERED ADEQUATE FOR OFFERORS TO UNDERSTAND THE GOVERNMENT'S NEEDS AND TO PREPARE TECHNICAL PROPOSALS SHOWING HOW THEY PROPOSE TO MEET SUCH NEEDS. IT IS FURTHER REPORTED THAT THE INFORMATION WHICH YOU ALLEGE SHOULD HAVE BEEN IN THE REQUEST FOR PROPOSALS EITHER IS NOT REQUIRED FOR THE SUBMISSION OF PROPOSALS OR IS A PART OF THE WORK TO BE PERFORMED UNDER THE CONTRACT TO BE AWARDED. THIS REGARD IT IS STATED THAT ANNEX I PROVIDES INSTRUCTIONS FOR CONDUCTING THE STUDY PORTION OF THE ASP DEVELOPMENT PROGRAM. SINCE THIS STUDY WAS TO BE PERFORMED UNDER ITEM 1 OF THE CONTRACT TO BE AWARDED, A COMPLETE STUDY WAS NOT REQUIRED TO BE IN THE PROPOSAL. LIKEWISE ANNEX II DID NOT REQUIRE A COMPLETE COMPATIBILITY ANALYSIS TO BE CONTAINED IN THE PROPOSAL. RATHER, THE PROPOSALS WERE TO DEMONSTRATE THE OFFERORS' METHODOLOGY AND CAPABILITY TO PERFORM THE STUDY AND ANALYSIS. ANY QUESTIONS CONCERNING THE REQUIREMENTS SHOULD HAVE BEEN RAISED AT THE PREPROPOSAL CONFERENCE WHICH WAS HELD FOR THIS PURPOSE.

YOU CONTEND THAT THERE IS CONTRADICTORY INFORMATION IN ANNEX I AND ANNEX II CONCERNING THE TYPE OF FUZING. THE ADMINISTRATIVE REPORT DENIES ANY CONFUSION REGARDING THE ASP FUZING REQUIREMENTS. ANNEX I (STUDY), PARAGRAPH 3.4 REQUIRES A FUNCTIONAL DEFINITION OF THE ASP FUZING SYSTEM AND AN ASSESSMENT OF THE FMU-56 A/B PROXIMITY FUZE TO MEET THE DEFINED REQUIREMENTS. ANNEX II (DESIGN), PARAGRAPH 3.4.5 PROVIDES:

"THE ASP SHALL USE A PROXIMITY FUZE DESIGNATED BY THE U.S. AIR FORCE. THE CONTRACTOR SHALL BE RESPONSIBLE FOR ASSURING COMPATIBILITY BETWEEN DISPENSER ELECTRO/MECHANICAL SYSTEMS AND THE DESIGNATED PROXIMITY FUZE." UNDER SUCH PROVISIONS THE PRECISE DISPENSER ELECTRO/MECHANICAL SUBSYSTEM FUNCTIONS ARE FOR THE CONTRACTOR TO DETERMINE, INCLUDING WHETHER AN ELECTRONIC TIMER IS NEEDED IN ADDITION TO A PROXIMITY FUZE.

YOU ALLEGE THAT THE REQUIREMENTS FAILED TO IDENTIFY A SPECIFIC "CRATERING BOMB" NOW KNOWN BY SPECIAL DEVICES TO HAVE BEEN THE DESIRED SUBMUNITION FOR INCLUSION UNDER ANNEX I, PARAGRAPH 3.0 AND IN PARTICULAR 3.1D. IT IS REPORTED THAT THE REFERENCE TO "CRATERING BOMB" IS ASSUMED TO BE AN "ADVANCED CRATERING BOMB" PRESENTLY IN A DEFINITION PHASE OF DEVELOPMENT BY ONE OF THE PROPOSERS UNDER THIS REQUEST FOR PROPOSALS AND AS TO WHICH SPECIAL DEVICES RAISED A QUESTION AT THE PREPROPOSAL CONFERENCE AS FOLLOWS:

"ASSUMING THAT THE NEW CRATERING BOMB IS THE PRIMARY CANDIDATE FOR RUNWAY TARGETS, COULD YOU DESCRIBE ITS OPERATION AND PHYSICAL CHARACTERISTICS SO ITS USE IN ASP COULD BE EVALUATED, OR IS THIS DETAILED ANALYSIS CONSIDERED NOT NECESSARY FOR THE PROPOSAL." THE RESPONSE WAS:

"THE DATA IS NOT CONSIDERED NECESSARY FOR PROPOSAL PURPOSES, HOWEVER, IT WOULD BE MADE AVAILABLE TO SUCCESSFUL BIDDER AFTER CONTRACT AWARD. FOR PROPOSAL PURPOSES THOUGH IT IS DESIRABLE TO HAVE A SINGLE UNINTERRUPTED PAYLOAD VOLUME."

IT IS FURTHER REPORTED THAT THE ADVANCED CRATERING BOMB IS NOT YET AN EXISTING SUBMUNITION, NOR HAS IT BEEN DEFINED FUNCTIONALLY OR DIMENSIONALLY; THAT SEVERAL OTHER DESIGNS ARE STILL UNDER STUDY FROM OTHER SOURCES AND A DESIGN CHOICE IS YET TO BE MADE; THAT WHEN A DECISION IS MADE THE DESIGN DATA WILL BE PROVIDED TO THE SUCCESSFUL BIDDER AFTER CONTRACT AWARD; AND THAT DATA ON SUCH SUBMUNITIONS WAS NOT ESSENTIAL TO THE SUBMISSION OF PROPOSALS, AS ANNOUNCED AT THE PREPROPOSAL CONFERENCE, AND THE INCLUSION OF SUCH DATA IN THE PROPOSALS WAS NOT USED AS AN EVALUATION FACTOR. THE ASP DISPENSER SHOULD BE ABLE TO DISPENSE ALL SUBMUNITIONS POSSIBLE AND THIS IS TO BE DETERMINED UNDER THE STUDY IN ITEM 1 OF THE CONTRACT.

IT SEEMS CLEAR FROM THE RECORD THAT THE TECHNICAL NATURE (RESEARCH AND DEVELOPMENT) OF THIS PROCUREMENT IS SUCH THAT FORMAL ADVERTISING WITH THE DETAILED AND PRECISE SPECIFICATIONS AS REQUIRED BY 10 U.S.C. 2305(B) WAS NEITHER FEASIBLE OR PRACTICABLE. WHILE WE DO NOT KNOW THE EXTENT WHICH ADDITIONAL INFORMATION WOULD HAVE ASSISTED IN THE PREPARATION OF TECHNICAL PROPOSALS, IT IS NOTED THAT SEVERAL OF THE PROPOSALS RECEIVED WERE CONSIDERED TO BE TECHNICALLY ACCEPTABLE AND WITHIN THE COMPETITIVE RANGE. ALSO, POTENTIAL OFFERORS WERE AFFORDED THE OPPORTUNITY AT THE PREPROPOSAL CONFERENCE TO RAISE ANY QUESTIONS THEY MAY HAVE HAD CONCERNING THE REQUIREMENTS.

FOR THE FOREGOING REASONS, WE FIND NO BASIS TO QUESTION THE ADEQUACY OF THE REQUIREMENTS SET FORTH IN THE REQUEST FOR PROPOSALS OR THE PROCEDURES FOLLOWED IN THE INSTANT PROCUREMENT.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.