B-172951, FEB 22, 1972

B-172951: Feb 22, 1972

Additional Materials:

Contact:

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

 

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

THE PROCURING ACTIVITY'S DETERMINATION THAT A SECTION OF THE SPECIFICATIONS WAS SO SUBJECT TO MISINTERPRETATION AS TO REDUCE THE BENEFITS OF FULL AND FREE COMPETITION. APPEARS TO HAVE BEEN MADE IN GOOD FAITH. THERE IS NO LEGAL BASIS FOR OBJECTION AND THE PROTEST MUST BE DENIED. TO HY-GAIN ELECTRONICS CORPORATION: REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 17. THE LRTP WAS ISSUED ON FEBRUARY 23. SIX TECHNICAL PROPOSALS WERE RECEIVED OF WHICH FOUR WERE FOUND REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE. THE PROPOSALS FROM THREE CONCERNS WERE FOUND ACCEPTABLE AND ELIGIBLE TO BID ON STEP TWO. WAS FOUND UNACCEPTABLE FOR FAILING TO FURNISH CERTAIN THEORETICAL CALCULATIONS. THE FIRM WAS SO NOTIFIED ON MAY 10.

B-172951, FEB 22, 1972

BID PROTEST - RESOLICITATION DECISION DENYING PROTEST OF HY-GAIN ELECTRONICS CORPORATION AGAINST THE REOPENING OF STEP ONE UNDER A LETTER REQUEST FOR TECHNICAL PROPOSAL ISSUED BY THE ARMY ELECTRONICS COMMAND FOR A QUANTITY OF TRANSMITTING AND RECEIVING ROTABLE LOGARITHMIC PERIODIC ANTENNA AND ANCILLARY ITEMS. THE PROCURING ACTIVITY'S DETERMINATION THAT A SECTION OF THE SPECIFICATIONS WAS SO SUBJECT TO MISINTERPRETATION AS TO REDUCE THE BENEFITS OF FULL AND FREE COMPETITION, APPEARS TO HAVE BEEN MADE IN GOOD FAITH. ACCORDINGLY, THERE IS NO LEGAL BASIS FOR OBJECTION AND THE PROTEST MUST BE DENIED.

TO HY-GAIN ELECTRONICS CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 17, 1971, AND LETTER OF JANUARY 7, 1972, PROTESTING AGAINST THE REOPENING OF STEP ONE UNDER LETTER REQUEST FOR TECHNICAL PROPOSAL NO. DAAB05-71-B-0093, ISSUED BY THE UNITED STATES ARMY ELECTRONICS COMMAND, PHILADELPHIA, PENNSYLVANIA.

THE LRTP WAS ISSUED ON FEBRUARY 23, 1971, WITH APRIL 1, 1971, AS THE EXTENDED DEADLINE FOR RECEIPT OF PROPOSALS, FOR A QUANTITY OF TRANSMITTING AND RECEIVING ROTABLE LOGARITHMIC PERIODIC ANTENNA AND ANCILLARY ITEMS. SIX TECHNICAL PROPOSALS WERE RECEIVED OF WHICH FOUR WERE FOUND REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE. AFTER FURTHER REVIEW, THE PROPOSALS FROM THREE CONCERNS WERE FOUND ACCEPTABLE AND ELIGIBLE TO BID ON STEP TWO, THE INVITATION FOR BIDS (IFB). THE PROPOSAL FROM ELECTROSPACE SYSTEMS, INCORPORATED (ESI), WAS FOUND UNACCEPTABLE FOR FAILING TO FURNISH CERTAIN THEORETICAL CALCULATIONS; THE FIRM WAS SO NOTIFIED ON MAY 10, 1971. STEP TWO (THE IFB) WAS ISSUED TO THE THREE ELIGIBLE CONCERNS ON THE SAME DATE.

BY TELEGRAM DATED MAY 14, 1971, SUPPLEMENTED BY ADDITIONAL CORRESPONDENCE, ESI PROTESTED THE DETERMINATION TO REJECT ITS TECHNICAL PROPOSAL. UPON ADMINISTRATIVE REVIEW IT WAS FOUND THAT ESI'S PROPOSAL HAD BEEN ERRONEOUSLY REJECTED AND THAT THE PROPOSAL INITIALLY SHOULD HAVE BEEN IN THE REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE CATEGORY. ESI WAS THEN GIVEN THE OPPORTUNITY TO FURNISH THEORETICAL CALCULATIONS WHICH RESULTED IN THE PROPOSAL BEING FOUND ACCEPTABLE.

ON JUNE 16, 1971, THOSE CONCERNS WHICH HAD BEEN ISSUED A COPY OF THE IFB WERE ADVISED THAT THE SECOND STEP WAS CANCELLED; THAT THE BIDS SUBMITTED WERE RETURNED UNOPENED AND THAT A NEW IFB WOULD BE ISSUED AT A LATER DATE. THE NEW IFB HAS BEEN WITHHELD PENDING OUR DECISION ON THE PROTEST. BY LETTER OF SEPTEMBER 10, 1971, ANTENNA PRODUCTS (AP) URGED THAT SECTION 3.1 OF THE SPECIFICATIONS WAS MISLEADING AND THAT IT COULD HAVE OFFERED A LESS EXPENSIVE ITEM HAD IT BEEN AWARE OF HOW THE SECTION WOULD BE INTERPRETED.

SECTION 3.1 OF THE SPECIFICATIONS PROVIDED AS FOLLOWS:

"3.1 GENERAL. REQUIREMENTS FOR THIS TYPE OF ANTENNA SHALL BE FULFILLED BY A PROVEN PRODUCT OF AN ESTABLISHED DESIGN.

"3.1.1 COMPLIANCE REQUIREMENTS. COMPLIANCE WITH THE REQUIREMENTS OF THIS SPECIFICATION SHALL BE DEMONSTRATED BY:

"A. THEORETICAL CALCULATIONS.

"B. HISTORICAL DATA ON ANTENNAS IN SERVICE AND ON COMPONENTS PROCURED BY THE CONTRACTOR.

"C. INSPECTION OF FIRST ARTICLE SAMPLE.

"D. MEASUREMENTS PERFORMED ON THE FIRST ARTICLE SAMPLE.

"E. MEASUREMENTS PERFORMED ON SCALE MODELS.

"F. MANUFACTURER'S WARRANTY."

AP, IN ITS LETTER OF SEPTEMBER 10, STATES THAT THE REQUIREMENT FOR "A PROVEN PRODUCT OF AN ESTABLISHED DESIGN" WAS INTERPRETED BY THAT CONCERN AS LIMITING PROPOSALS TO OPERATIONAL PRODUCTS. SINCE AP'S OPERATIONAL ANTENNAE EXCEEDED THE SPECIFICATIONS, ITS PROPOSAL TO STEP ONE BASED ON THE OPERATIONAL DESIGN ALSO EXCEEDED THE SPECIFICATION REQUIREMENTS. SECTION 3.1 COULD BE MET BY THEORETICALLY PROVING THE DESIGN, AS IN THE CASE OF ESI'S PROPOSAL, AP ALSO COULD HAVE PROPOSED A LESS EXPENSIVE ITEM. ON THIS BASIS AP URGED THAT IT SHOULD BE GIVEN THE SAME OPPORTUNITY AS ESI AND THAT STEP ONE SHOULD BE REOPENED.

IN A LETTER DATED DECEMBER 3, 1971, FORWARDING A SUPPLEMENTAL REPORT FROM THE CONTRACTING OFFICER, THE ARMY MATERIEL COMMAND AGREED WITH AP'S CONTENTION AND PROPOSED TO REOPEN STEP ONE AFTER CLARIFYING SECTION 3.1 OF THE SPECIFICATIONS.

YOU HAVE PROTESTED THE DETERMINATION TO REOPEN STEP ONE ON THE GROUNDS THAT AP SHOULD HAVE BEEN AWARE THAT THE SPECIFICATIONS DID NOT LIMIT OFFERS TO OPERATIONAL EQUIPMENT. YOU ASSERT THAT UNDER AP'S INTERPRETATION ONLY THAT FIRM COULD FURNISH OPERATIONAL EQUIPMENT AND, THEREFORE, THE PROCUREMENT WOULD HAVE HAD TO BE ON A SOLE-SOURCE BASIS. FROM THIS PREMISE YOU CONTEND THAT IT WAS UNREASONABLE FOR AP TO ASSUME THAT PROPOSALS WERE TO BE LIMITED TO OPERATIONAL EQUIPMENT.

ONE OF THE CHIEF AIMS OF THE PROCUREMENT SYSTEMS EMPLOYED BY THE GOVERNMENT IS TO OBTAIN THE BENEFITS OF FULL AND FREE COMPETITION. INDEED, THE TWO-STEP SYSTEM EMPLOYED IN THIS CASE IS A HYBRID SYSTEM DESIGNED TO OBTAIN GREATER COMPETITION THAN MIGHT BE POSSIBLE WITHOUT IT. CERTAINLY FULL COMPETITION MAY BE THWARTED BY UNCLEAR OR AMBIGUOUS PROVISIONS IN THE PROCUREMENT SOLICITATION. THE PROCURING AGENCY HAS FOUND, AFTER CONSIDERING AP'S POSITION, THAT SECTION 3.1 MAY WELL BE SUBJECT TO AN INTERPRETATION OTHER THAN INTENDED WITH A RESULTANT REDUCTION IN COMPETITION. IN THESE CIRCUMSTANCES, SINCE THERE HAS BEEN NO DISCLOSURE OF PRICES, WE FIND NO LEGAL BASIS TO OBJECT TO THE GOOD FAITH ADMINISTRATIVE DETERMINATION TO RESOLICIT THE FIRST STEP SIMPLY BECAUSE AN OFFEROR NEED NOT HAVE BEEN MISLED BY THE DEFICIENT PROVISION IF HE HAD USED SOME ESOTERIC LOGIC TO DIVINE THE ADMINISTRATIVE INTENT.