B-171030, JUN 22, 1971

B-171030, JUN 22, 1971

BID PROTEST - COMPETITIVE RANGE - ADMINISTRATIVE DISCRETION DENYING PROTEST OF SYMETRICS INDUSTRIES, INC., AGAINST THE AWARD OF A CONTRACT TO HUGHES AIRCRAFT COMPANY UNDER AN RFP ISSUED BY GODDARD SPACE FLIGHT CENTER FOR ONE MOBILE TERMINAL PLUS TWO ADDITIONAL ANTENNA SYSTEMS. DETERMINATION OF WHAT CONSTITUTES A COMPETITIVE RANGE, PARTICULARLY WITH RESPECT TO THE EVALUATION OF TECHNICAL PROPOSALS, IS A MATTER OF ADMINISTRATIVE DISCRETION. ELIMINATION OF SYMETRICS FROM FURTHER NEGOTIATIONS, ITS PROPOSAL HAVING BEEN EVALUATED IN DETAIL IN A MANNER CONSISTENT WITH THE EVALUATION OF PROPOSALS FROM OTHER OFFERORS, IS A VALID EXERCISE OF DISCRETION.

TO SYMETRICS INDUSTRIES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 8, 1971, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF CONTRACTS UNDER REQUESTS FOR PROPOSALS (RFP) NOS. 460-18052(245) AND 460-18002/271(A) ISSUED BY THE GODDARD SPACE FLIGHT CENTER, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA).

RFP-(245) WAS ISSUED ON OCTOBER 3, 1969, AND, AS AMENDED, REQUESTED OFFERS FOR ONE MOBILE TERMINAL PLUS TWO ADDITIONAL ANTENNA SYSTEMS WITH THREE RECEIVER SYSTEMS. AS INDICATED BY THE ADMINISTRATIVE REPORT, A COPY OF WHICH HAS PREVIOUSLY BEEN FURNISHED TO SYMETRICS, THE MOBILE PORTION OF THE EQUIPMENT WILL BE USED IN SEVERAL GEOGRAPHICAL LOCATIONS AND WILL HAVE THE CAPABILITY OF TRANSMITTING AND RECEIVING SIGNALS TO AND FROM APPLICATIONS TECHNOLOGY SATELLITES (ATS). RFP-271(A), ISSUED ON DECEMBER 5, 1969, REQUESTED PROPOSALS FOR THE DESIGN, DEVELOPMENT, FABRICATION, INSTALLATION, AND INTEGRATION OF ATS GROUND STATION EQUIPMENT WHICH WAS TO BE USED IN SUPPORT OF THE ATS F&G SPACECRAFT MISSION.

SYMETRICS SUBMITTED PROPOSALS ON BOTH RFP'S. OF THE FOUR PROPOSALS RECEIVED IN RESPONSE TO RFP-(245), SYMETRICS' PROPOSAL, AFTER ORAL AND WRITTEN DISCUSSIONS, WAS RANKED THIRD BOTH TECHNICALLY AND AS TO PRICE. SYMETRICS COMPLAINS THAT THE SUCCESSFUL OFFEROR HUGHES AIRCRAFT COMPANY WAS ALLOWED TO PROPOSE AND PROVIDE EQUIPMENT WHICH DOES NOT MEET THE SPECIFICATIONS OF RFP-(245). WITH RESPECT TO RFP-271(A), SYMETRICS CONTENDS THAT IT WAS UNFAIRLY EVALUATED AND ELIMINATED FROM FURTHER NEGOTIATIONS FOR REASONS OF UNUSUALLY MINOR NATURE AND BECAUSE ITS PROPOSAL, ALTHOUGH APPARENTLY COMPLIANT, WAS VAGUE AND TOO GENERAL. WITH RESPECT TO BOTH RFP'S, SYMETRICS CONTENDS THAT THE 10 PERCENT DIFFERENTIAL BETWEEN ITS NUMERICAL RATINGS ON THE RFP'S COULD NOT POSSIBLY COVER A RANGE FROM GOOD TO TECHNICALLY UNACCEPTABLE AND, THEREFORE, NASA EVALUATION OF THE TWO RFP'S WAS INCONSISTENT AND CAPRICIOUS.

OUR OFFICE HAS RECOGNIZED THAT THE PURCHASING ACTIVITY HAS THE PRIMARY RESPONSIBILITY FOR DETERMINING ITS MINIMUM NEEDS AND WHETHER A PRODUCT MEETS THOSE NEEDS. SEE B-170492, OCTOBER 26, 1970. WE HAVE ALSO RECOGNIZED THAT THE DETERMINATION OF WHAT CONSTITUTES A COMPETITIVE RANGE, PARTICULARLY WITH RESPECT TO THE EVALUATION OF TECHNICAL PROPOSALS, IS A MATTER OF ADMINISTRATIVE DISCRETION WHICH WILL NOT BE DISTURBED WHEN SUPPORTED BY THE FACTS OF RECORD. SEE 48 COMP. GEN. 314, 317-318 (1968); B-170317, FEBRUARY 2, 1971; B-169773, OCTOBER 9, 1970; B-161676, AUGUST 22, 1967. FURTHER, IN B-170750(1), FEBRUARY 22, 1971, THERE IS CONTAINED THE FOLLOWING RELEVANT STATEMENT:

"TO ADEQUATELY JUDGE THE VALIDITY OF THE EVALUATION OF YOUR PROPOSAL WOULD REQUIRE A DEGREE OF TECHNICAL COMPETENCE AND KNOWLEDGE WHICH OUR OFFICE DOES NOT POSSESS. WE, THEREFORE, ARE NOT IN A POSITION TO STATE CATEGORICALLY THAT THE DETERMINATION OF THE EVALUATION BOARD, WITH RESPECT TO CALTECH'S PROPOSAL, WAS SO ARBITRARY AND CAPRICIOUS AS TO BE CLEARLY ERRONEOUS. CONSEQUENTLY, WE MAY NOT OBJECT TO THE FINDINGS OF THE EVALUATION BOARD."

IN VIEW OF THE APPLICABILITY OF THESE PRINCIPLES TO THE PROTEST AND SINCE OUR REVIEW OF THE RECORD DISCLOSES THAT SYMETRICS' PROPOSALS WERE EVALUATED IN DETAIL IN A MANNER CONSISTENT WITH THE EVALUATION OF PROPOSALS FROM OTHER OFFERORS, NO OBJECTION WILL BE TAKEN TO THE DETERMINATIONS MADE BY THE VARIOUS CONTRACTING OFFICERS UNDER THESE PROCUREMENTS.

MOREOVER, THE NUMERICAL DIFFERENCES IN THE RATINGS GIVEN TO SYMETRICS' RESPECTIVE PROPOSALS AND THE DETERMINATIONS OF PROPOSAL ACCEPTABILITY OR UNACCEPTABILITY BASED THEREON DO NOT REQUIRE THE CONCLUSION ON OUR PART THAT THE EVALUATIONS WERE CONDUCTED ON AN UNEQUAL BASIS. IT APPEARS, AT LEAST FROM THE ORAL TRANSCRIPTS, THAT THE SAME GROUP OF INDIVIDUALS DID NOT EVALUATE SYMETRICS ON BOTH RFP'S. THUS, THE DIFFERENCE IN NUMERICAL RATINGS ON THE SYMETRICS PROPOSALS MAY BE ATTRIBUTED TO THE FACT THAT ANY EVALUATION INVOLVES A DEGREE OF SUBJECTIVE JUDGMENT AND THAT THERE WAS A DIFFERENCE IN THE COMPOSITION OF THE EVALUATING TEAM.

ACCORDINGLY, THE PROTEST IS DENIED.