B-171857, NOV 12, 1971

B-171857, NOV 12, 1971

BID PROTEST - BID RESPONSIVENESS - CONFLICT OF INTEREST AFFIRMING PRIOR DECISION WHICH DENIED PROTEST BY CAPCOMP, INC., AGAINST AWARD OF A CONTRACT TO ITT DATA SERVICES, (ITT), UNDER AN RFP ISSUED BY THE AGRICULTURAL STABILIZATION AND CONSERVATION SERVICE, DEPARTMENT OF AGRICULTURE. WHILE THE RFP PROHIBITED AWARD TO ANY FIRM ENGAGED IN THE MANUFACTURE OF AUTOMATIC DATA PROCESSING EQUIPMENT, ITT'S PARENT COMPANY, INTERNATIONAL TELEPHONE AND TELEGRAPH CORPORATION DOES MANUFACTURE DATA COMMUNICATIONS EQUIPMENT. HOWEVER, THE QUESTION OF ITT'S ELIGIBILITY UNDER THE RFP IS A MATTER OF JUDGEMENT WITHIN THE COGNIZANCE OF THE PROCUREMENT AGENCY AND IF THE MANUFACTURE OF SUCH PERIPHERAL EQUIPMENT CONSTITUTED A SUFFICIENT THREAT OF A CONFLICT OF INTEREST, THE RFP WOULD HAVE SPECIFICALLY MENTIONED IT.

TO CAPCOMP, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 15, 1971, WITH ENCLOSURE, REQUESTING RECONSIDERATION OF OUR DECISION DATED MAY 24, 1971, IN WHICH WE DENIED YOUR PROTEST AGAINST THE AWARD OF CONTRACT NO. 12-33- 001-4925 TO ITT DATA SERVICES (ITT) UNDER REQUEST FOR PROPOSALS (RFP) NO. ASCS-34-71DCNEG), ISSUED BY THE AGRICULTURAL STABILIZATION AND CONSERVATION SERVICE (ASCS), UNITED STATES DEPARTMENT OF AGRICULTURE.

YOU PROTESTED ON THE BASIS THAT THE CONTRACTOR, ITT, A SUBSIDIARY OF INTERNATIONAL TELEPHONE AND TELEGRAPH CORPORATION (ITT CORP.), WAS INELIGIBLE TO RECEIVE AWARD BECAUSE THE PARENT COMPANY IS HEAVILY ENGAGED IN THE MANUFACTURE OF AUTOMATIC DATA PROCESSING EQUIPMENT AND THE RFP PROHIBITS AWARD TO ANY FIRM ENGAGED IN SUCH MANUFACTURE.

YOU REFER TO THE FOLLOWING STATEMENTS MADE ON PAGE 3 OF OUR DECISION OF MAY 24, 1971, TO YOU:

"YOUR FIRM FURTHER ALLEGES THAT EVEN THOUGH ITT MAY NOT MANUFACTURE DATA PROCESSING EQUIPMENT PER SE THE STATED PURPOSE OF THE PROJECT CONTEMPLATED BY THE SUBJECT RFP MUST ENCOMPASS THE USE OF DATA COMMUNICATIONS EQUIPMENT, WHICH ITT CORP. ADMITTEDLY DOES MANUFACTURE. HOWEVER, WE FEEL THAT IF THE AGENCY DETERMINED THAT THE MANUFACTURE OF SUCH PERIPHERAL EQUIPMENT CONSTITUTED A SUFFICIENT THREAT OF A CONFLICT OF INTEREST ON THE PART OF THE PROSPECTIVE CONTRACTOR, THE PROHIBITION IN THE RFP WOULD HAVE SPECIFICALLY MENTIONED DATA COMMUNICATIONS EQUIPMENT.

"IN VIEW OF THE FACT THAT THE RECORD INDICATES THAT ITT'S PERFORMANCE OF THE SUBJECT CONTRACT WILL NOT DIRECTLY INVOLVE IT IN DRAWING OF SPECIFICATIONS FOR EQUIPMENT WHICH THE GOVERNMENT MAY EVENTUALLY PROCURE, WE MUST CONCLUDE THAT THE QUESTION OF ITT'S ELIGIBILITY UNDER THE SUBJECT RFP IS A MATTER OF JUDGMENT WITHIN THE COGNIZANCE OF THE PROCUREMENT AGENCY. CF. 48 COMP. GEN. 702, 706 (1969). WE WILL NOT SUBSTITUTE OUR JUDGMENT ON SUCH A MATTER IN THE ABSENCE OF CONVINCING EVIDENCE OF UNREASONABLENESS OR FAVORITISM IN THE AGENCY DETERMINATION."

WITH YOUR LETTER OF JUNE 15, 1971, YOU SUBMITTED A COPY OF THE FOLLOWING ANNOUNCEMENT WHICH APPEARED IN THE JUNE 3, 1971, ISSUE OF THE COMMERCE BUSINESS DAILY:

"R - STUDYING THE FEASIBILITY OF INSTALLING A NATION-WIDE TELEPROCESSING AND MESSAGE SWITCHING SYSTEM TO LINK ITS 2896 OFFICES WITH A COMPUTER UTILITY TO BE INSTALLED IN KANSAS CITY, MO. (AUTOMATIC DATA PROCESSING AND DATA EQUIPMENT EXCLUSION). IT REQUIRES THE DEVELOPMENT OF COMPUTER PROGRAMS AND TELECOMMUNICATIONS SIMULATORS IN ACCORDANCE WITH BROAD FUNCTIONAL SPECIFICATIONS IT HAS ALREADY COMPLETED. THIS PROCUREMENT ADDRESSES ITSELF TO THE DEVELOPMENT AND DELIVERY OF NET WORK ANALYSIS AIDES WITH WHICH ASCS PERSONNEL CAN ANALYZE PERFORMANCE COST TRADE-OFFS OF ASCS' POTENTIAL COMMUNICATIONS REQUIREMENTS. IT IS NOT FOR CONSULTANT ASSISTANCE IN THE QUALIFICATION OF ASCS REQUIREMENTS. THE OVERALL ASCS PROJECT SCHEDULE REQUIRES DELIVERY OF COMPUTERIZED NETWORK ANALYSIS AIDES BY 1 NOV 71. IN VIEW OF THIS STRINGENT TIME FRAME, ONLY BIDDERS HAVING RIGHTS AND/OR ACCESS TO EXISTING TELECOMMUNICATIONS SIMULATORS ARE INVITED TO RESPOND. IT IS ANTICIPATED THAT ASCS REQUIREMENTS SHALL BE MET THROUGH EXTENSIONS AND/OR MODIFICATIONS TO SIMULATORS PROVIDED BY A CONTRACTOR - JOB - RFP NOT FURNISHED - RFP DUE DATE 14 JUN 71. EXPECTED AWARD DATE 18 JUN 71."

YOU CONTEND THAT THE FOREGOING BID ANNOUNCEMENT IS PRIMA FACIE EVIDENCE OF THE FACT THAT THE DEPARTMENT OF AGRICULTURE IS UTILIZING THE FINDINGS OF THE WORK PERFORMED BY ITT UNDER CONTRACT NO. 12-33-001 4925, RFP NO. ASCS-34-71DCNEG), IN ORDER TO DEVELOP A INTERCOMMUNICATIONS NETWORK TO LINK THE DEPARTMENT'S 2,896 OFFICES TO A CENTRAL COMPUTER FACILITY IN KANSAS CITY; THAT THIS RELATED AND RESULTING CONTRACT IS LIMITED TO MANUFACTURERS OF INTERCOMMUNICATIONS EQUIPMENT; THAT THE TIME FRAME FOR PROPOSALS IS 1 WEEK; AND THAT "UNDOUBTEDLY ITT WILL RECEIVE THE AWARD SINCE THE SPECIFICATIONS WERE WRITTEN, NOT INDEPENDENTLY, AS SPECIFIED BY THE RFP (THE AWARD OF WHICH WE PROTESTED) BUT BY THEIR OWN COMPANY." YOU MAINTAIN THAT OUR DECISION OF MAY 24, 1971, IS BASED ON GROSS MISSTATEMENTS OF FACT AND ARGUMENT BY THE DEPARTMENT OF AGRICULTURE.

IT APPEARS THAT YOU HAVE ASSUMED THAT RFP ASCS-49-71DCNEG), WHICH WAS ANNOUNCED IN THE JUNE 3, 1971, ISSUE OF THE COMMERCE BUSINESS DAILY, IS A DIRECT RESULT OF THE WORK PERFORMED BY ITT DATA SERVICES UNDER THE CONTRACT AWARDED UNDER RFP-ASCS-34-71DCNEG) AGAINST WHICH YOUR PROTEST WAS LODGED.

IT IS REPORTED THAT THE SPECIFICATIONS IN RFP ASCS-49-71DC WERE DEVELOPED ENTIRELY BY EMPLOYEES OF THE AGRICULTURAL STABILIZATION AND CONSERVATION SERVICE (ASCS), DEPARTMENT OF AGRICULTURE, AND DID NOT IN ANY WAY INVOLVE ITT DATA SERVICES OR ANY OTHER WORK RESULTING FROM THE ITT DATA SERVICES CONTRACT AGAINST WHICH YOUR ORIGINAL PROTEST WAS MADE. ALSO, WE ARE ADVISED THAT ITT DATA SERVICES DID NOT SUBMIT A PROPOSAL UNDER RFP ASCS-49 -71DC, AND THAT AWARD UNDER THE RFP WAS MADE TO SYSTEMS ARCHITECTS, INC., BRAINTREE, MASSACHUSETTS.

ACCORDINGLY, WE FIND NO REASON TO MODIFY THE CONCLUSION REACHED IN OUR DECISION OF MAY 24, 1971.