B-171905, JUL 20, 1971

B-171905: Jul 20, 1971

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WILL NOT OBJECT TO THE DECISION NOT TO CONDUCT NEGOTIATIONS WITH PROTESTANT. TO LORAL ELECTRONIC SYSTEMS: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED FEBRUARY 12. FOUR QUOTATIONS WERE RECEIVED BY THE CLOSING DATE ON MARCH 17. THE PROCURING ACTIVITY SUBSEQUENTLY DETERMINED THAT THE TECHNICAL REQUIREMENTS OF THE RFQ WERE MORE STRINGENT THAN NECESSARY. THE RFQ WAS REVISED TO INCORPORATE THE CHANGED PROVISIONS. OFFERORS WERE REQUESTED TO SUBMIT REVISED QUOTATIONS AND THREE PROPOSALS. WERE RECEIVED BY THE CLOSING DATE ON OCTOBER 19. THE PROPOSALS WERE EVALUATED BY A PROPOSAL EVALUATION PANEL AND ITS RECOMMENDATIONS WERE REVIEWED BY A CONTRACT AWARD PANEL. IT WAS DETERMINED THAT THE PROPOSALS OF SYLVANIA AND WATKINS- JOHNSON.

B-171905, JUL 20, 1971

BID PROTEST - NEGOTIATIONS - COMPETITIVE RANGE DECISION DENYING PROTEST AGAINST THE AWARD OF A CONTRACT TO SYLVANIA ELECTRONICS SYSTEMS-WESTERN DIVISION, UNDER A SOLICITATION ISSUED BY THE NAVAL SHIP SYSTEMS COMMAND FOR A QUANTITY OF RECEIVER SYSTEMS, DATA, EQUIPMENT REPAIR PARTS, ENGINEERING SERVICES, TRAINING, AND AN OPTION FOR ADDITIONAL RECEIVER SYSTEMS. BECAUSE THE GOVERNMENT RESERVED THE RIGHT TO ACCEPT ANY QUOTATION WITHOUT NEGOTIATIONS AND THE SOLICITATION CALLED FOR QUOTATIONS ON THE MOST FAVORABLE TERMS FROM A COST AND TECHNICAL STANDPOINT, IT WOULD BE UNREASONABLE TO ACCEPT PROTESTANT'S CONTENTION THAT THE REVISED SPECIFICATIONS CONSTITUTED AN INVITATION TO TAKE EXCEPTIONS TO THE SPECIFIED REQUIREMENTS. FURTHER, WHERE THE PROCURING ACTIVITY DETERMINED PROTESTANT'S OFFER CONTAINED MAJOR DEFICIENCIES IN TECHNICAL AND DESIGN APPROACHES, THE COMP. GEN. WILL NOT OBJECT TO THE DECISION NOT TO CONDUCT NEGOTIATIONS WITH PROTESTANT, ABSENT A SHOWING OF ARBITRARY ACTION.

TO LORAL ELECTRONIC SYSTEMS:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED FEBRUARY 12, 1971, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER SOLICITATION NO. N00024-70-Q-3329, ISSUED ON JANUARY 12, 1970, BY THE NAVAL SHIP SYSTEMS COMMAND, WASHINGTON, D.C., FOR A QUANTITY OF AN/WRL-8(V2), AND AN/WRL-8(V3), RECEIVER SYSTEMS, DATA, EQUIPMENT REPAIR PARTS, ENGINEERING SERVICES, TRAINING, AND AN OPTION FOR ADDITIONAL RECEIVER SYSTEMS.

FOUR QUOTATIONS WERE RECEIVED BY THE CLOSING DATE ON MARCH 17, 1970. HOWEVER, THE PROCURING ACTIVITY SUBSEQUENTLY DETERMINED THAT THE TECHNICAL REQUIREMENTS OF THE RFQ WERE MORE STRINGENT THAN NECESSARY, AND, THEREFORE, THE RFQ WAS REVISED TO INCORPORATE THE CHANGED PROVISIONS.

EXHIBIT E OF THE REVISED SOLICITATION PROVIDED IN PERTINENT PART AS FOLLOWS:

"EXCEPTIONS TO THE SPECIFICATIONS

"IDENTIFY ALL SPECIFICATION REQUIREMENTS CONCERNING THIS CATEGORY WHICH THE CONTRACTOR DEEMS TO REQUIRE FURTHER AMPLIFICATION AND/OR REVISIONS OR WHERE THE SPECIFIED REQUIREMENTS CANNOT BE MET. IDENTIFY EACH ITEM SEPARATELY BY PARAGRAPH NUMBER, AND STATE THE PROPOSED CHANGE OR ADDITION. PROVIDE A DETAILED DISCUSSION AND FULLY EXPLAIN THE NEED FOR EACH EXCEPTION."

THE SOLICITATION ALSO PROVIDED THAT PROPOSALS MUST BE AT LEAST ACCEPTABLE WITH REGARD TO EACH EVALUATION CATEGORY SET OUT THEREIN, AND THAT ANY PROPOSAL DETERMINED TO BE UNACCEPTABLE IN ANY EVALUATION CATEGORY MIGHT BE ELIMINATED FROM FURTHER CONSIDERATION.

OFFERORS WERE REQUESTED TO SUBMIT REVISED QUOTATIONS AND THREE PROPOSALS, FROM YOUR CONCERN, FROM SYLVANIA ELECTRONICS SYSTEMS-WESTERN DIVISION, AND FROM WATKINS-JOHNSON COMPANY, WERE RECEIVED BY THE CLOSING DATE ON OCTOBER 19, 1970. SUBSEQUENTLY, THE PROPOSALS WERE EVALUATED BY A PROPOSAL EVALUATION PANEL AND ITS RECOMMENDATIONS WERE REVIEWED BY A CONTRACT AWARD PANEL. IT WAS DETERMINED THAT THE PROPOSALS OF SYLVANIA AND WATKINS- JOHNSON, THE OTHER TWO OFFERORS, WERE WITHIN A COMPETITIVE TECHNICAL RANGE. YOUR PROPOSAL WAS CONSIDERED UNACCEPTABLE BECAUSE IT CONTAINED MAJOR EXCEPTIONS TO THE SPECIFICATIONS, OMISSIONS AND INCONSISTENCIES.

YOU WERE ADVISED OF THIS DETERMINATION BY LETTER DATED DECEMBER 21, 1970, AS FOLLOWS:

"YOUR PROPOSAL FOR THE SUBJECT EQUIPMENT SUBMITTED IN RESPONSE TO SOLICITATION N00024-70-Q-3329 HAS BEEN EVALUATED AND FOUND TECHNICALLY UNACCEPTABLE ON THE FOLLOWING GROUNDS:

A) CONTROL/DISPLAY RACKS EXCEEDED SPECIFIED POWER REQUIREMENTS AND HEAT DISSIPATION.

B) POWER AND CONTROL SIGNAL DISTRIBUTION UNITS NOT MEETING SPECIFIED COOLING, PACKAGING, AND SYSTEM CONFIGURATION REQUIREMENTS.

C) EXCESSIVE WEIGHTS.

D) UNACCEPTABLE CONVERSION APPROACH."

IN VIEW OF THE DETERMINATION THAT YOUR PROPOSAL WAS UNACCEPTABLE, NEGOTIATIONS WERE CONDUCTED ONLY WITH SYLVANIA AND WATKINS-JOHNSON, AND A DECISION WAS SUBSEQUENTLY MADE TO ISSUE LETTER CONTRACT N00024-71-C 1214 TO SYLVANIA.

YOU STATE THAT THE INFORMATION FURNISHED YOU BY THE NAVY IN ITS DECEMBER 21 LETTER DOES NOT ESTABLISH THE PRECISE TECHNICAL REASONS FOR THE REJECTION OF YOUR PROPOSAL AND THAT YOUR PROPOSAL MET ALL THE REQUIREMENTS OF THE REVISED RFQ. YOU ALSO MAINTAIN THAT YOUR PROPOSAL WAS CONSIDERABLY LOWER IN COST THAN SYLVANIA'S OFFER AND THAT SUCH FACTOR WAS IGNORED BY THE NAVY. FURTHERMORE, YOU CONTEND THAT THE ABOVE-QUOTED PROVISION OF EXHIBIT E OF THE REVISED RFQ INVITED DEVIATIONS AND LED YOUR CONCERN TO BELIEVE THAT YOU WOULD BE AFFORDED THE OPPORTUNITY TO CONFORM TO THOSE SPECIFICATIONS NOT PRECISELY ADHERED TO.

WITH RESPECT TO THIS LAST CONTENTION, THE DEPARTMENT MAINTAINS THAT THE PROVISION WAS INSERTED TO AID THE PROCURING ACTIVITY IN DETERMINING THE TECHNICAL QUALITY OF THE PROPOSALS, AND NOT TO SUGGEST THAT THE SPECIFICATIONS NEED NOT BE MET OR THAT NEGOTIATIONS WOULD BE AUTOMATICALLY AFFORDED FOR THE PURPOSE OF DISCUSSING ANY DEVIATIONS FROM THE SPECIFICATIONS. SINCE THE PROVISION IS RELATED TO EXCEPTIONS WHICH THE CONTRACTOR NEEDS OR DEEMS TO BE REQUIRED, WE DO NOT AGREE WITH YOUR CONTENTION THAT THE PROVISION CONSTITUTES AN INVITATION TO TAKE EXCEPTIONS TO THE SPECIFIED REQUIREMENTS.

IN THIS REGARD, THE REVISED SOLICITATION ALSO PROVIDED THAT THE GOVERNMENT RESERVED THE RIGHT TO ACCEPT ANY QUOTATION WITHOUT NEGOTIATIONS AND THAT QUOTATIONS SHOULD BE SUBMITTED INITIALLY ON THE MOST FAVORABLE TERMS FROM A COST AND TECHNICAL STANDPOINT. IN VIEW OF THIS LATTER PROVISION, WE DO NOT BELIEVE THAT AN OFFEROR WOULD HAVE BEEN JUSTIFIED IN INITIALLY OFFERING LESS THAN HIS "MOST FAVORABLE" TECHNICAL PROPOSAL, OR IN ASSUMING THAT THE PROCURING ACTIVITY WOULD AUTOMATICALLY AFFORD AN OFFEROR THE OPPORTUNITY TO REVISE A PROPOSAL WHICH DEPARTED MATERIALLY FROM THE SPECIFIED REQUIREMENTS. ACCORDINGLY, WE PERCEIVE NO BASIS IN THE SOLICITATION FOR QUESTIONING THE REJECTION, WITHOUT NEGOTIATION, OF UNACCEPTABLE PROPOSALS.

REGARDING YOUR STATEMENT THAT YOUR PROPOSAL WAS CONSIDERABLY LOWER IN COST THAN SYLVANIA'S OFFER, IT SHOULD BE NOTED THAT THE SOLICITATION CONTEMPLATED THE AWARDING OF A COST-PLUS-INCENTIVE FEE TYPE OF CONTRACT, AND THAT THE COSTS SET OUT IN THE PROPOSALS WERE ESTIMATES ONLY. ADDITIONALLY, WE DO NOT FIND A SOUND BASIS FOR ATTACHING ANY SIGNIFICANCE FAVORABLE TO YOUR PROTEST FROM A COMPARISON OF THE ESTIMATED COST OF YOUR UNACCEPTABLE PROPOSAL WITH THAT OF AN ACCEPTABLE PROPOSAL.

THE COMMAND HAS FURNISHED THIS OFFICE WITH ADDITIONAL DATA CONCERNING THE TECHNICAL REASONS FOR REJECTION OF YOUR PROPOSAL. SINCE COMPLETE DATA WAS ALSO FURNISHED YOUR FIRM, ONLY A FEW OF THE REASONS WILL BE SHOWN HERE, AS FOLLOWS:

"CONTRACTOR INTERPRETED THE SPECIFIED VOLUME, WEIGHT AND POWER DISSIPATION LIMITS FOR THE CONTROL/DISPLAY RACK INCONSISTENTLY. HE HAS GIVEN VOLUME AND WEIGHT FOR THE COMPLETE CONTROL/DISPLAY RACK (NOWHERE IS IT BROKEN DOWN TO INDIVIDUAL RACK BASIS); HOWEVER, SINCE HE HAS EXCEEDED THE MAXIMUM SPECIFIED POWER DISSIPATION BY 663 WATTS FOR THE CONTROL/DISPLAY RACK HE HAS CHOSEN TO INTERPRET THE SPECIFICATION TO MEAN ALLOWABLE POWER FOR EACH RACK AT THE OPERATOR STATION. IT SHOULD BE POINTED OUT THAT IT WOULD REQUIRE A SIGNIFICANT AMOUNT OF REDESIGN IN THE INDIVIDUAL UNITS TO REDUCE THE POWER CONSUMPTION IN THIS RACK TO THE ACCEPTABLE LIMIT.

"A MAJOR EXCEPTION AND/OR INCONSISTENCY IS IN THE AREA OF THE TWO (2) FIVE-GUN DISPLAYS. THESE DISPLAYS ARE DISSIPATING 400 WATTS OF POWER, 45 WATTS/SQ. FT. OF SURFACE AREA. SPECIFICATION LIMITS THIS TO 10 WATTS/SQ. FT. FOR ANY UNIT.

"PARAGRAPH 3.1.8 OF THE EQUIPMENT SPECIFICATION IS CLEAR THAT UNIT HEAT DISSIPATION SHALL NOT EXCEED 10 WATTS PER SQUARE FOOT. ALTHOUGH PARAGRAPH 3.12 OF MIL-E-16400F IS REFERENCED IN PARAGRAPH 3.1.8.2 OF THE EQUIPMENT SPECIFICATION THERE IS NO INDICATION IN THE EQUIPMENT SPECIFICATION THAT USE OF THE METHODS FOR AIR COOLING SET FORTH IN MIL E-16400F PERMITS DEVIATION FROM THE 'NOT TO EXCEED' VALUE SET FORTH IN PARAGRAPH 3.1.8 OF THE EQUIPMENT SPECIFICATION.

"THE WEIGHTS OF TWELVE (12) OUT OF THIRTY-FIVE (35) UNITS EXCEED THOSE SPECIFIED. ALTHOUGH THE WEIGHTS SPECIFIED FOR UNITS OF THE AN/WLR-8 WERE ROUND NUMBERS, THESE VALUES WERE NOT 'MERE ESTIMATES'. THESE WEIGHTS WERE FIRM, 'NOT TO EXCEED' VALUES IMPOSED TO MEET STRICT END-USER REQUIREMENTS. THERE IS NO AMBIQUITY IN THE APPLICABLE SPECIFICATION PARAGRAPH 3.1.9.3.2 WHICH STATES, 'UNITS SHALL NOT EXCEED THE WEIGHTS ...

"CONTRACTOR HAS TAKEN MAJOR EXCEPTION TO SPECIFIED DEPTH REQUIREMENT FOR THE CONTROL/DISPLAY RACK AND REMOTE RACK. THE POWER DISTRIBUTION BOX HE HAS ADDED ON THE BACK OF THIS RACK WILL NOT ALLOW A 6-INCH CLEARANCE AT REAR. DEPTH IS 26-INCHES, NOT THE SPECIFIED 22-INCHES. ALSO, THE POSITION OF THIS BOX ON THE REMOTE RACK DOES NOT ALLOW SUFFICIENT SPACE FOR ADDITION OF EXHAUST VENTS AT TOP-REAR IF HE WERE TO ADD THEM (THEY ARE NEEDED SINCE HE DOES USE A BLOWER).

"MAJOR OMISSION MADE IN PROPOSAL ON DISCUSSION OF CONTROL SIGNAL J BOX WHICH HE HAS ADDED. AS SHOWN IN SYSTEM FUNCTIONAL BLOCK DIAGRAM, UNIT WOULD REQUIRE ACTIVE DEVICES TO ACCOMPLISH FAN-OUT OF CONTROL SIGNALS DEPICTED. NO WHERE IS THERE VOLUME, OR WEIGHT ALLOWANCES FOR THIS UNIT, THERE IS AN APPRECIABLE NUMBER OF CONNECTORS REQUIRED.

"THE REQUIREMENT FOR INDEPENDENT TUNER OPERATION IS SEVERELY COMPROMISED AS A RESULT OF THE JUNCTION-BOX APPROACH PROPOSED FOR PRIMARY POWER LINE EMI AND TRANSIENT VOLTAGE PROTECTION. THIS APPROACH WILL EVENTUALLY LEAD TO NON-CONFORMANCE OF THE TUNER UNITS TO THE SPECIFIED EMI REQUIREMENTS.

"THE REVISED CONVERSION APPROACH PROPOSED FOR THE UPPER THREE BANDS IS ESSENTIALLY THE SAME AS THE UNACCEPTABLE CONVERSION SCHEME PROPOSED IN THE ORIGINAL WATKINS-JOHNSON PROPOSAL; AS A CONSEQUENCE, THIS TECHNIQUE SUFFERS FROM SIMILAR OBJECTIONABLE FEATURES, SUCH AS: POOR APPROACH IN LIGHT OF EXTERNAL L.O. OPERATION, RELATIVELY COMPLEX ALIGNMENT FEATURES AND EXTREMELY HIGH CONVERTER UNIT NOISE FIGURE. DUE TO THE EXCESSIVE CONVERTER NOISE-FIGURE, THE RESULTANT SYSTEM NOISE FIGURE DURING BYPASS OPERATION (APPROXIMATELY 41 DB) IS OF SUCH A MAGNITUDE AS TO COMPLETELY NULLIFY THE OPERATIONAL BACKUP-INTENT OF THE RF BYPASS MODE. THESE UNDESIRABLE FEATURES CONSTITUTE UNACCEPTABLE CONVERTER UNIT DEGRADATION.

"IN LIGHT OF THE DESIGN APPROACH PROPOSED BY OTHER CONTRACTORS AND DUE TO THE LACK OF SUPPORTING DATA AND TO EXISTING CONTRADICTORY DEVICE PERFORMANCE DATA, THE PROPOSED RF APPROACH IN THE LOW BAND TUNER CONSTITUTES EITHER A HIGH RISK TECHNICAL APPROACH, OR A REQUIREMENT FOR STATE-OF-THE-ART PRODUCT DEVELOPMENT."

ASPR 3-805.1(A) REQUIRES THAT AFTER RECEIPT OF INITIAL PROPOSALS, WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS INCLUDING TECHNICAL QUALITY WHERE APPROPRIATE, CONSIDERED. "OTHER FACTORS" HAS BEEN HELD TO INCLUDE THE TECHNICAL ACCEPTABILITY OF PROPOSALS. 46 COMP. GEN. 606 (1967). PARTICULARLY WITH RESPECT TO TECHNICAL CONSIDERATIONS, WE RECOGNIZE THAT A REASONABLE DEGREE OF ADMINISTRATIVE DISCRETION IS PERMISSIBLE IN DETERMINING WHETHER A PROPOSAL IS WITHIN THE COMPETITIVE RANGE. B 163024, AUGUST 27, 1968. ALSO, IT IS OUR POLICY NOT TO QUESTION SUCH ADMINISTRATIVE DETERMINATIONS IN THE ABSENCE OF A CLEAR SHOWING OF ARBITRARY ABUSE OF DISCRETION. 48 COMP. GEN. 314 (1968).

IN THE INSTANT CASE THE PROCURING ACTIVITY DETERMINED THAT YOUR OFFER CONTAINED MAJOR DEFICIENCIES IN TECHNICAL AND DESIGN APPROACHES, AND OUR REVIEW OF THE RECORD SHOWS THAT YOUR PROPOSAL WAS EVALUATED IN A MANNER CONSISTENT WITH THE EVALUATION OF THE PROPOSALS OF THE OTHER OFFERORS. DO NOT CONSIDER THAT YOU HAVE PRESENTED A CLEAR SHOWING THAT THE AGENCY WAS ARBITRARY IN REJECTING YOUR PROPOSAL, AND SINCE WE DO NOT POSSESS THE DEGREE OF TECHNICAL COMPETENCE TO CATEGORICALLY STATE THAT YOUR PROPOSAL WAS WITHIN A COMPETITIVE RANGE OF THE OTHER PROPOSALS, OR THAT THE DEFICIENCIES IN YOUR PROPOSAL WERE MERELY MINOR MATTERS WHICH SHOULD HAVE BEEN RESOLVED IN NEGOTIATIONS, WE WILL NOT OBJECT TO THE AGENCY'S DECISION NOT TO CONDUCT NEGOTIATIONS WITH YOUR FIRM. SEE B-168190, FEBRUARY 24, 1970, AND B-171030, JUNE 22, 1971.

FOR THE REASONS SET FORTH ABOVE, YOUR PROTEST IS DENIED.