B-170742, JAN 25, 1971

B-170742: Jan 25, 1971

Additional Materials:

Contact:

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

 

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

BID PROTEST - DEVIATIONS FROM SPECIFICATIONS DENIAL OF PROTEST AGAINST REJECTION OF PROPOSAL UNDER FIRST STEP OF TWO- STEP PROCUREMENT FOR PRODUCTION OF SINGLE AND MULTI-YEAR REQUIREMENTS OF PRETRIGGER GENERATORS FOR NAVAL ELECTRONIC SYSTEMS COMMAND ON BASIS THAT PROTESTANT WHO WAS CURRENT CONTRACTOR OFFERED EQUIPMENT DEVIATING FROM SPECIFICATION. A PROPOSAL WHICH CONTAINS A MATERIAL DEPARTURE FROM SPECIFICATIONS EVEN THOUGH SUPERIOR TO REQUIREMENTS WAS PROPERLY REJECTED AS NONRESPONSIVE IN ABSENCE OF EVIDENCE OF ARBITRARY OR CAPRICIOUS ACTION. FURTHER DISCUSSION FOR PURPOSES OF MAKING PROPOSAL TECHNICALLY ACCEPTABLE WAS NOT REQUIRED. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 1.

B-170742, JAN 25, 1971

BID PROTEST - DEVIATIONS FROM SPECIFICATIONS DENIAL OF PROTEST AGAINST REJECTION OF PROPOSAL UNDER FIRST STEP OF TWO- STEP PROCUREMENT FOR PRODUCTION OF SINGLE AND MULTI-YEAR REQUIREMENTS OF PRETRIGGER GENERATORS FOR NAVAL ELECTRONIC SYSTEMS COMMAND ON BASIS THAT PROTESTANT WHO WAS CURRENT CONTRACTOR OFFERED EQUIPMENT DEVIATING FROM SPECIFICATION. A PROPOSAL WHICH CONTAINS A MATERIAL DEPARTURE FROM SPECIFICATIONS EVEN THOUGH SUPERIOR TO REQUIREMENTS WAS PROPERLY REJECTED AS NONRESPONSIVE IN ABSENCE OF EVIDENCE OF ARBITRARY OR CAPRICIOUS ACTION. FURTHER DISCUSSION FOR PURPOSES OF MAKING PROPOSAL TECHNICALLY ACCEPTABLE WAS NOT REQUIRED.

TO AMPLITRONICS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 1, 1970, AND SUBSEQUENT CORRESPONDENCE PROTESTING THE REJECTION OF YOUR TECHNICAL PROPOSAL SUBMITTED UNDER REQUEST FOR PROPOSALS NO. N00039-70-R-2043(Q), ISSUED BY THE NAVAL ELECTRONIC SYSTEMS COMMAND (NAVELEX), WASHINGTON, D.C., AND REQUESTING AN OPPORTUNITY TO ANSWER ANY AND ALL QUESTIONS IN ORDER TO CLARIFY ANY POINTS CONCERNING YOUR PROPOSAL WHICH MIGHT NOT BE CLEAR TO NAVY PERSONNEL.

THE PROCUREMENT WAS INITIATED BY THE ISSUANCE OF A LETTER REQUEST FOR UNPRICED TECHNICAL PROPOSALS (LRFUTP) ON JUNE 12, 1970, AS THE FIRST STEP OF A TWO-STEP PROCUREMENT, CALLING FOR TECHNICAL PROPOSALS FOR THE PRODUCTION OF SINGLE AND MULTI-YEAR REQUIREMENTS FOR SG-841/UPX PRETRIGGER GENERATORS FOR USE WITH AIMSIFF INTERROGATORS. ON JULY 14, 1970, THE DATE SET FOR RECEIPT OF PROPOSALS, SEVEN FIRST-STEP PROPOSALS WERE RECEIVED, INCLUDING ONE BY AMPLITRONICS. UPON EVALUATION, FIVE PROPOSALS WERE DETERMINED TO BE ACCEPTABLE AND TWO, INCLUDING YOUR PROPOSAL, WERE DETERMINED TO BE UNACCEPTABLE. CONSEQUENTLY, BY LETTER DATED AUGUST 25, 1970, YOU WERE ADVISED IN PERTINENT PART:

"YOUR PROPOSAL HAS BEEN REVIEWED, AND AFTER TECHNICAL EVALUATION, FOUND TO BE DEFICIENT IN REGARD TO THE TECHNICAL DESCRIPTION IN THE FOLLOWING AREAS: THE DISCUSSION OF THE TRIGGER GENERATOR TIMING STAGES WAS INAPPLICABLE TO THIS EQUIPMENT AND OF LITTLE KNOWN VALUE; INSUFFICIENT INFORMATION CONCERNING REQUIREMENTS FOR THE D.C. ISOLATION OF PARAGRAPH 3.3.3.2.1 AND OF THE 50% CIRCUIT; UNSATISFACTORY INFORMATION FOR ESTABLISHING THE INTERNAL PRF USED IN THE COMPARATOR; LACK OF INFORMATION CONCERNING THE SELECTION OF COUNTDOWN; INSUFFICIENT DISCUSSION OF THE INPUT CIRCUITRY; LACK OF A CRYSTAL CLOCK/DIGITAL CIRCUITRY FOR FREQUENCY SELECTION; INSUFFICIENT INFORMATION REGARDING MODIFICATIONS OF TD-937 TIMING CIRCUITS; INSUFFICIENT DISCUSSION OF FAIL-SAFE OPERATION; INSUFFICIENT INFORMATION CONCERNING PRELIMINARY RELIABILITY PREDICTION OR MAINTAINABILITY REQUIREMENTS; AND INADEQUATE INFORMATION REGARDING THE ANALYSIS OF VIBRATION/SHOCK LOADING PROVISIONS. THEREFORE, YOUR PROPOSAL HAS BEEN DETERMINED TO BE UNACCEPTABLE AND NOT REASONABLY SUSCEPTIBLE TO BEING CORRECTED SO THAT IT WOULD BE ACCEPTABLE."

THE FOLLOWING STATEMENT WAS SET FORTH ON THE FIRST PAGE OF THE LRFUTP:

"THE TECHNICAL PROPOSAL, AS SUBMITTED, WILL BE CATEGORIZED AS (I) ACCEPTABLE, (II) REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE BY ADDITIONAL INFORMATION CLARIFYING OR SUPPLEMENTING, BUT NOT BASICALLY CHANGING THE PROPOSAL AS SUBMITTED, OR (III) IN ALL OTHER CASES, UNACCEPTABLE. ANY PROPOSAL WHICH MODIFIES, OR FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OR SPECIFICATIONS OF THIS REQUEST FOR UNPRICED TECHNICAL PROPOSALS WILL BE CONSIDERED NONRESPONSIVE AND CATEGORIZED AS UNACCEPTABLE. OFFERORS ARE ADVISED TO SUBMIT PROPOSALS WHICH ARE FULLY AND CLEARLY ACCEPTABLE WITHOUT ADDITIONAL EXPLANATION OR INFORMATION, SINCE THE GOVERNMENT MAY MAKE A FINAL DETERMINATION WHETHER A PROPOSAL IS ACCEPTABLE OR UNACCEPTABLE SOLELY ON THE BASIS OF THE PROPOSAL AS SUBMITTED AND PROCEED DIRECTLY WITH THE SECOND STEP OF THIS PROCUREMENT WITHOUT REQUESTING OR PERMITTING THE SUBMISSION OF FURTHER INFORMATION FROM ANY OFFEROR. HOWEVER, IF DEEMED NECESSARY IN ORDER TO OBTAIN SUFFICIENT ACCEPTABLE PROPOSALS TO ASSURE ADEQUATE PRICE COMPETITION IN THE SECOND STEP, OR OTHERWISE DESIRABLE IN ITS BEST INTEREST, THE GOVERNMENT MAY REQUEST ADDITIONAL INFORMATION FROM OFFERORS OF PROPOSALS WHICH THE GOVERNMENT CONSIDERS REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE BY ADDITIONAL INFORMATION CLARIFYING OR SUPPLEMENTING BUT NOT BASICALLY CHANGING ANY PROPOSAL AS SUBMITTED. FOR THIS PURPOSE, THE GOVERNMENT MAY DISCUSS ANY SUCH PROPOSAL WITH THE OFFEROR. FIRMS SUBMITTING PROPOSALS FINALLY DETERMINED TO BE UNACCEPTABLE IN STEP 1 WILL BE SO NOTIFIED."

IN DECIDING THAT YOUR PROPOSAL WAS NOT REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE BY CLARIFYING OR SUPPLEMENTAL INFORMATION, THE NAVY TECHNICAL PERSONNEL CONCLUDED THAT DATA OF THE TYPE NECESSARY TO MAKE YOUR PROPOSAL ACCEPTABLE WOULD AMOUNT TO A BASIC CHANGE IN THE PROPOSAL AS SUBMITTED. NAVY THEREFORE DETERMINED THAT, IN ACCORDANCE WITH THE ABOVE PROVISIONS OF THE LRFUTP, IT WOULD NOT BE APPROPRIATE TO HAVE DISCUSSIONS WITH YOUR FIRM OF YOUR UNACCEPTABLE PROPOSAL. IT IS APPARENT FROM THE RECORD THAT A PRINCIPAL FACTOR WHICH RENDERED YOUR PROPOSAL NONRESPONSIVE, IN THE VIEW OF THE COGNIZANT NAVY PERSONNEL, WAS THAT YOU OFFERED A VOLTAGE CONTROLLED OSCILLATOR, DELAY LINES AND ANALOG CIRCUITRY IN LIEU OF A CRYSTAL CONTROLLED CLOCK AND DIGITAL TIMING CIRCUITRY AS REQUIRED BY PARAGRAPH 3.4.3.1.1 OF SPECIFICATION MIL-G-28744(EC).

ESSENTIALLY, YOUR PROTEST IS BASED ON THE ALLEGATION THAT AMPLITRONICS HOLDS CONTRACT NO. N00039-70-C-0253 WHICH WAS AWARDED TO IT ON DECEMBER 19, 1969, BY THE SAME NAVY COMMAND FOR THE PRODUCTION AND DELIVERY OF PRETRIGGER GENERATORS UNDER SPECIFICATIONS SUBSTANTIALLY THE SAME AS THE SPECIFICATIONS OF THIS PROCUREMENT. YOU SAY THAT, SINCE YOUR PROPOSAL ON THE SUBJECT RFP OUTLINES THE SAME TECHNICAL APPROACH WHICH WAS ACCEPTED FOR YOUR CURRENT CONTRACT, THE PROPOSAL SHOULD HAVE BEEN CONSIDERED ACCEPTABLE AND THAT THERE IS CREATED "AN INCONCEIVABLE PICTURE TO HAVE THE SAME COMPANY DECLARED NONRESPONSIVE ON THE NEW REQUIREMENT." YOU ALSO CONTEND THAT "THIS ACTION ON THE PART OF THE NAVY IS EVEN MORE INCREDULOUS WHEN NAVELEX MONITORING OF THE PRESENT CONTRACT HAD BEEN PROCEEDING IN A COMPLETELY SATISFACTORY MANNER UNTIL RECEIPT OF ENCLOSURE (11)." THE REFERENCED ENCLOSURE TO YOUR PROTEST IS A LETTER DATED AUGUST 11, 1970, FROM THE COMMANDER, DEFENSE CONTRACT ADMINISTRATION, WHICH OBSERVED IN PERTINENT PART:

"AMPLITRONICS DESIGN DEVIATES FROM THE SPECIFICATION REQUIREMENTS IN PARAGRAPH 3.4.3.1.1 WHICH STATES, IN PART, THAT *** 'ALL INTERNAL TIMING FUNCTIONS OF THE EQUIPMENT SHALL USE A CRYSTAL CONTROLLED CLOCK AND DIGITAL COUNTING CIRCUITS.' AMPLITRONICS' DESIGN USES DELAY LINES AND ANALOG CIRCUITRY IN LIEU OF THE DIGITAL CIRCUITS AND CRYSTAL CLOCK SPECIFIED. THIS IS A CLEAR DEVIATION FROM A BASIC SPECIFIED DESIGN REQUIREMENT. DIVERSION FROM THE SPECIFICATION IN THIS AREA PLACES SUBSTANTIAL RESERVATION ON THE PERFORMANCE OF THIS EQUIPMENT WHICH, IN TURN, MAY PLACE THE ENTIRE AIMS SYSTEM IN JEOPARDY.

"THE SUBJECT CONTRACT STATES ON PAGE 5 OF THE RFP, UNDER SUPPLIES *** 'NOTHING CONTAINED IN SAID TECHNICAL PROPOSAL SHALL CONSTITUTE A WAIVER OF ANY OF THE PROVISIONS OF THE SPECIFICATION SET FORTH HEREIN.'

THEREFORE, ACCEPTANCE OF THE TECHNICAL PROPOSAL DOES NOT CONSTITUTE A WAIVER OF PARAGRAPH 3.4.3.1.1 OF THE EQUIPMENT SPECIFICATION.

"IN VIEW OF THE FOREGOING AND WITH CONSIDERATION FOR THE PRACTICAL ASPECTS INVOLVED, THE FOLLOWING COURSES OF ACTION ARE PRESENTED FOR YOUR CONSIDERATION:

A. REDESIGN THE EQUIPMENT TO INCORPORATE ALL OF THE REQUIREMENTS OF THE SPECIFICATION INCLUDING FULL COMPLIANCE WITH PARAGRAPH 3.4.3.1.1.

B. REQUEST A WAIVER OF THE APPLICABLE PART OF THE SPECIFICATION. SUCH A WAIVER WILL BE CONSIDERED ONLY WHEN, AND IF, AMPLITRONICS CAN SATISFACTORILY DEMONSTRATE, TO A BOARD OF NAVY EXPERTS, THAT THE EQUIPMENT, AS CURRENTLY CONFIGURED, CAN AND WILL MEET ALL PERFORMANCE CRITERIA OF THE TECHNICAL SPECIFICATION.

"A WRITTEN RESPONSE MUST BE SUBMITTED TO NAVELEX WITHIN TEN WORKING DAYS FROM THE DATE OF RECEIPT OF THIS LETTER.

"THIS LETTER IN NO WAY MAY BE CONSTRUED AS ALTERING THE TERMS OR CONDITIONS OF THE SUBJECT CONTRACT OR ANY REFERENCED SPECIFICATION."

THEREAFTER, BY LETTER OF AUGUST 17, 1970, YOUR FIRM REQUESTED A WAIVER OF THE APPLICABLE PART OF THE SPECIFICATIONS, CONTENDING THAT THE VOLTAGE CONTROLLED OSCILLATOR, AS PROPOSED, RENDERS THE EQUIPMENT MORE RELIABLE IN TERMS OF SHIPBOARD OPERATION AND MAINTENANCE. ON AUGUST 31, 1970, A MEETING WAS HELD AT YOUR PLANT FOR THE PURPOSE OF HAVING THE NAVY EXPERTS REVIEW YOUR "BREADBOARD" MODEL, RUN THROUGH THE OPERATING TESTS, AND DETERMINE WHETHER A WAIVER OF THE CRYSTAL CONTROLLER CLOCK AND DIGITAL TIMING CIRCUITRY WAS IN ORDER. A WAIVER OF THOSE SPECIFICATION REQUIREMENTS WAS NOT GRANTED AS A RESULT OF THIS MEETING, AND THE REASONS FOR SUCH DECISION WERE EXPLAINED IN A LETTER DATED DECEMBER 2, 1970, TO YOUR FIRM FROM THE COMMANDER OF NAVELEX, WHICH STATED:

"IT SEEMS CLEAR THAT YOUR PROPOSED USE OF VOLTAGE CONTROLLED OSCILLATOR TOGETHER WITH DELAY LINES AND ANALOG CIRCUITRY ARE NOT IN ACCORDANCE WITH THE SPECIFICATIONS. YOUR PROPOSAL IN THIS REGARD IS IDENTICAL TO THE PROPOSAL WHICH RESULTED IN YOUR CURRENT CONTRACT N00039-70-C-0253 WITH THIS COMMAND. HOWEVER, FIRST ARTICLE APPROVAL HAS NOT BEEN SOUGHT AND OBTAINED UNDER YOUR CURRENT CONTRACT AND THEREFORE THERE IS NO EVIDENCE THAT SUCH AN APPROACH, EVEN IF NOT IN ACCORDANCE WITH THE SPECIFICATIONS, WOULD ACHIEVE THE REQUIREMENTS FOR TIMING ACCURACY WITH STABILITY. THE BREADBOARD WHICH YOU PREPARED FOR YOUR CURRENT CONTRACT WAS MERELY A PRELIMINARY SHOWING OF DESIGN AND WAS NOT TESTED FOR STABILITY. SUCH A DEMONSTRATION IS THEREFORE NOT AN INDICATION THAT YOUR DESIGN IS COMPLIANT WITH THE SPECIFICATIONS IN THIS REGARD. ALL EVIDENCE POINTS TO THE CONTRARY. AS YOU WERE ADVISED BY THE ADMINISTRATIVE REPORT SUBMITTED TO THE COMPTROLLER GENERAL IN RESPONSE TO YOUR PROTEST, IT IS THE POSITION OF THIS COMMAND THAT THE SPECIFICATION REQUIREMENTS FOR A CRYSTAL CLOCK AND DIGITAL CIRCUITRY ARE ESSENTIAL IN ORDER TO ACHIEVE TIMING ACCURACY WITH STABILITY. THAT CONCLUSION WAS CONFIRMED BY NAVAL RESEARCH LABORATORY AS A RESULT OF YOUR PROTEST."

WE ARE FURTHER ADVISED THAT, AT YOUR REQUEST, AN ADDITIONAL MEETING WAS HELD ON DECEMBER 10, 1970, BETWEEN THE ENGINEERS OF YOUR FIRM AND THE NAVY IN A FURTHER EFFORT TO PERMIT YOU TO SHOW WHY A WAIVER SHOULD BE GRANTED. IT IS REPORTED THAT AFTER THE MEETING YOU WERE ORALLY ADVISED BY NAVY PERSONNEL THAT A WAIVER COULD NOT BE GRANTED.

WE HAVE BEEN INFORMALLY ADVISED THAT WHILE NAVY INADVERTENTLY ACCEPTED YOUR DESIGN APPROACH IN THE TECHNICAL PROPOSAL SUBMITTED BY YOUR FIRM IN THE EARLIER SOLICITATION, YOUR CURRENT CONTRACT CONTAINS LANGUAGE WHICH REQUIRES COMPLIANCE WITH THE SPECIFICATIONS, NOTWITHSTANDING THE CONTENTS OF YOUR TECHNICAL PROPOSAL.

IT IS CLEAR THAT YOUR CURRENT PROPOSAL, WHICH OUTLINES A VOLTAGE CONTROLLED OSCILLATOR, DELAY LINES AND ANALOG CIRCUITRY IN LIEU OF A CRYSTAL CONTROLLED CLOCK AND DIGITAL TIMING CIRCUITRY, REPRESENTS A MATERIAL DEPARTURE FROM THE REQUIREMENTS OF THE SPECIFICATIONS. YOU ARGUE, HOWEVER, THAT YOUR APPROACH IS AN IMPROVEMENT OVER THE SPECIFICATIONS IN DESIGN SIMPLICITY, GREATER RELIABILITY, LESS OPERATOR MONITORING AND ADJUSTMENT, AND THEREFORE YOUR FAILURE TO COMPLY WITH THE SPECIFICATIONS IN THIS REGARD SHOULD BE WAIVED. THE EXPLANATION GIVEN BY THE NAVY AS TO WHY A CRYSTAL CONTROLLED CLOCK AND DIGITAL TIMING CIRCUITRY ARE PREFERRED IS AS FOLLOWS:

"THE PRETRIGGER GENERATORS PROVIDE ALL NECESSARY TIMING SIGNALS FOR SHIPBOARD AIMS SYSTEM OPERATION AND THEREFORE THE TIMING OF THE GENERATOR IS THE HEART OF THE SYSTEM. THE REQUIREMENT FOR A CRYSTAL CONTROLLED CLOCK IN THE PRESENT SPECIFICATION WAS NOT INSERTED AS AN ARBITRARY RESTRICTION ON TECHNICAL IMPROVEMENTS AS AMPLITRONICS APPEARS TO SUGGEST, BUT WAS BASED ON THE CONCLUSIONS OF THEORETICAL AND APPLIED RESEARCH PERFORMED BY THE NAVAL RESEARCH LABORATORY. NRL DETERMINED THAT THE USE OF A CRYSTAL CONTROLLED CLOCK AND DIGITAL TIMING CIRCUITS WAS ESSENTIAL IN ORDER THAT THIS EQUIPMENT MIGHT ACHIEVE THE TIMING ACCURACY REQUIRED FOR PROPER FUNCTIONING TO PREVENT EXCESSIVE THERMAL DRIFT AND TIMING VARIATION WITH REPETITIVE RATE VARIATION AND TO LIMIT INTERFERENCE BETWEEN INTERROGATORS AND INTERFERENCE IN AUTOMATIC DETECTION CIRCUITS. EVEN ASSUMING THAT THE VOLTAGE CONTROL OSCILLATOR MIGHT PROVIDE SIMPLICITY OF DESIGN AND EASE OF OPERATION, ACCEPTANCE OF SUCH A DESIGN WOULD SACRIFICE THE BASIC REQUIREMENT FOR TIMING, ACCURACY AND STABILITY OF THE SYSTEM IN FAVOR OF THESE LESSER FUNCTIONS."

IN ANSWER TO YOUR CONTENTION THAT YOUR COMPANY SHOULD BE GIVEN THE OPPORTUNITY TO CLARIFY ANY POINTS IN YOUR PROPOSAL WHICH MIGHT NOT BE CLEAR TO NAVY PERSONNEL, THE COMMANDER OF NAVELEX IN HIS LETTER OF DECEMBER 2 ADVISED YOU:

"CONSIDERATION OF YOUR REQUEST THAT YOU BE PERMITTED THE OPPORTUNITY TO SUPPLY DATA JUSTIFYING NONCOMPLIANCE WITH THE SPECIFICATIONS WOULD INVOLVE NOT ONLY A TECHNICAL CONCLUSION WHICH NAVAL RESEARCH LABORATORY AND THE COGNIZANT ENGINEERING CODE OF THIS COMMAND WERE UNABLE TO REACH, BUT ALSO WOULD REQUIRE THAT EACH PROPOSER IN THE FIRST STEP, ALL OF WHOM PROPOSED ON THE BASIS OF A CRYSTAL CLOCK AND DIGITAL CIRCUITRY, BE GIVEN THE OPPORTUNITY TO PROPOSE ON OTHER THAN A CRYSTAL CLOCK AND DIGITAL CIRCUITRY. I BELIEVE THAT YOU CAN UNDERSTAND THAT THIS IS UNDESIRABLE FROM BOTH A TECHNICAL AND PROCEDURAL POINT OF VIEW."

CONCERNING YOUR ARGUMENTS THAT YOUR COMPANY PRESENTED A SATISFACTORY DESIGN IN LIEU OF THE CRYSTAL CONTROLLED CLOCK AND DIGITAL TIMING CIRCUITRY, PARAGRAPH 2-501 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) DESCRIBES TWO-STEP FORMAL ADVERTISING AS A FLEXIBLE PROCEDURE ESSENTIALLY USEFUL IN THE PROCUREMENT OF COMPLEX ITEMS REQUIRING TECHNICAL PROPOSALS. CONFORMITY TO THE TECHNICAL REQUIREMENTS IS RESOLVED IN STEP ONE, WHICH INCLUDES THE EVALUATION AND, IF NECESSARY, DISCUSSION OF TECHNICAL PROPOSALS TO DETERMINE THEIR ACCEPTABILITY. SUCH METHOD REQUIRES THAT THE CONTRACTING OFFICER WORK CLOSELY WITH TECHNICAL PERSONNEL AND THAT HE UTILIZE THEIR SPECIALIZED KNOWLEDGE IN DETERMINING THE TECHNICAL REQUIREMENTS OF THE PROCUREMENT, IN DETERMINING THE CRITERIA TO BE USED IN EVALUATING TECHNICAL PROPOSALS, "AND IN MAKING SUCH EVALUATION." TECHNICAL EVALUATION OF A PROPOSAL IS REQUIRED TO BE BASED UPON THE CRITERIA CONTAINED IN THE LRFUTP, AND ASPR 2-503.1(E) CLEARLY STATES THAT A PROPOSAL WHICH MODIFIES, OR FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OR SPECIFICATIONS OF THE LRFUTP SHALL BE CONSIDERED NONRESPONSIVE AND CATEGORIZED AS UNACCEPTABLE.

AS WE STATED IN B-165457, MARCH 18, 1969, CONCERNING THE PROVISIONS OF ASPR 2-501:

"WE VIEW THE ABOVE PROVISIONS AS INVESTING IN THE TECHNICAL AND PROCUREMENT PERSONNEL CHARGED WITH THIS PROCUREMENT CONSIDERABLE LATITUDE IN FRAMING THE REQUIREMENTS TO BE MET BY PROPOSALS AND IN THEIR EVALUATION. RESPONSIBILITY FOR THE DETERMINATION OF THE ACCEPTABILITY OF TECHNICAL PROPOSALS IS VESTED IN THE PROCUREMENT AGENCY, WHICH IS BEST QUALIFIED TO EVALUATE THEM, AND, IN ACCORDANCE WITH WELL ESTABLISHED PRECEDENTS, WE WILL NOT QUESTION ITS DETERMINATION. 40 COMP. GEN. 35. WHETHER A PROPOSAL NEEDS CLARIFICATION TO BE DEEMED ACCEPTABLE, WHETHER A PROPOSAL CAN BE MADE ACCEPTABLE BY CLARIFICATION AND REASONABLE EFFORT BY THE GOVERNMENT, HOW MANY OR HOW FEW LETTERS OF CLARIFICATION MAY BE ADDRESSED TO A PROPOSER, ARE ALL MATTERS OF JUDGMENT ON THE PART OF THE PROCUREMENT AGENCY, WHICH WE WILL NOT QUESTION UNLESS THERE IS EVIDENCE OF FRAUD, PREJUDICE, ABUSE OF AUTHORITY, ARBITRARINESS OR CAPRICIOUS ACTION."

WITH REGARD TO YOUR ARGUMENT THAT THE REGULATIONS REQUIRED THE PROCURING OFFICIALS TO ELICIT INFORMATION FROM YOUR FIRM THAT WOULD HAVE MADE ITS PROPOSAL ACCEPTABLE, WE HAVE HELD THAT IN TWO-STEP PROCUREMENTS IT WOULD BE IMPROPER TO CONSIDER REVISIONS TO TECHNICAL PROPOSALS WHICH HAVE BEEN EVALUATED AS UNACCEPTABLE. 40 COMP. GEN. 35 (1960); ID. 40 (1960). IN 43 COMP. GEN. 255 (1963) AT PAGE 256 WE STATED:

"WE DO NOT BELIEVE THAT UNDER ORDINARY CIRCUMSTANCES THE POSITION STATED IN THE CITED DECISIONS SHOULD BE REGARDED AS GIVING THE CONTRACTING AGENCY AN OPTION TO DETERMINE WHETHER IN A GIVEN CASE FURTHER NEGOTIATIONS WILL BE HELD ON UNACCEPTABLE PROPOSALS. TO RECOGNIZE SUCH OPTION, EXCEPT TO THE EXTENT PERMITTED UNDER ASPR 2 503.1(C), WOULD LEAVE CONTRACTING OFFICERS OPEN TO ALLEGATIONS OF UNEQUAL TREATMENT OF BIDDERS."

SINCE THE RECORD DOES NOT ESTABLISH THAT ARBITRARY OR CAPRICIOUS ACTION WAS INVOLVED IN NAVY'S DETERMINATION THAT YOUR TECHNICAL PROPOSAL WAS UNACCEPTABLE, WE FIND NO LEGAL BASIS FOR QUESTIONING THAT DETERMINATION OR FOR OBJECTING TO NAVY'S ACTION IN NOT HOLDING FURTHER DISCUSSIONS WITH YOU FOR THE PURPOSE OF MAKING YOUR PROPOSAL TECHNICALLY ACCEPTABLE.

FOR THE FOREGOING REASONS, YOUR PROTEST IS DENIED.