B-174406, FEB 29, 1972

B-174406: Feb 29, 1972

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PROTESTANT QUESTIONS THE TECHNICAL SUFFICIENCY OF THE SPECIFICATION AND CONTENDS THAT THE REQUEST FOR ADDITIONAL SOFTWARE INCLUDED IN THE FINAL AMENDMENT TO THE RFP WAS TOO GENERAL AND AMBIGUOUS TO PERMIT A FAIR EVALUATION OF THE OFFERS RECEIVED. THE TECHNICAL ADEQUACY OF THE SOLICITATION IS SUBJECT TO VARIOUS DIFFERENCES OF OPINION. WILL NOT SUBSTITUTE HIS JUDGMENT FOR THAT OF THE PROCURING ACTIVITY. NO BENCHWORK TESTS ARE REQUIRED BECAUSE OF THE OPTIONAL NATURE OF THE ADDITIONAL SOFTWARE. IT DOES NOT APPEAR THAT THE SUBJECT CLAUSE IS SO VAGUE AS TO REQUIRE CANCELLATION OF THE RFP AT SUCH A LATE DATE. IS UNABLE TO CONCLUDE THAT THE OPPORTUNITY EXISTS FOR AN OFFEROR TO INCREASE ITS CHARGES.

B-174406, FEB 29, 1972

BID PROTEST - TECHNICAL SUFFICIENCY OF THE SPECIFICATION - AMBIGUITY - "BUY-IN" POSSIBILITY DECISION DENYING THE PROTEST OF CALIFORNIA COMPUTER PRODUCTS, INC. (COMPUTER), AGAINST THE AWARD OF ANY CONTRACT UNDER AN RFP ISSUED BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C., FOR THE PROCUREMENT OF 3 X-Y PLOTTER SYSTEMS PLUS RELATED DATA, TRAINING, AND MAINTENANCE. PROTESTANT QUESTIONS THE TECHNICAL SUFFICIENCY OF THE SPECIFICATION AND CONTENDS THAT THE REQUEST FOR ADDITIONAL SOFTWARE INCLUDED IN THE FINAL AMENDMENT TO THE RFP WAS TOO GENERAL AND AMBIGUOUS TO PERMIT A FAIR EVALUATION OF THE OFFERS RECEIVED. WHERE, AS HERE, THE TECHNICAL ADEQUACY OF THE SOLICITATION IS SUBJECT TO VARIOUS DIFFERENCES OF OPINION, THE COMP. GEN. WILL NOT SUBSTITUTE HIS JUDGMENT FOR THAT OF THE PROCURING ACTIVITY, ABSENT A CLEAR SHOWING OF AGENCY ERROR. B 165117, NOVEMBER 8, 1968. FURTHER, THE AMENDMENT GENERALLY CREATES AN OPTION ON THE PART OF THE GOVERNMENT TO REQUIRE DELIVERY OF THE SOFTWARE ITEMS WHENEVER NECESSARY DURING THE PERFORMANCE OF THE CONTRACT. NO BENCHWORK TESTS ARE REQUIRED BECAUSE OF THE OPTIONAL NATURE OF THE ADDITIONAL SOFTWARE, AND IT DOES NOT APPEAR THAT THE SUBJECT CLAUSE IS SO VAGUE AS TO REQUIRE CANCELLATION OF THE RFP AT SUCH A LATE DATE. WITH REGARD TO THE ALLEGED POSSIBILITY OF A "BUY-IN" PROPOSAL AS DEFINED BY ASPR 1-311, SINCE THE SOFTWARE PROVISION REQUIRES THAT THE COST OF ANY ADDITIONAL SOFTWARE OFFERED MUST BE CONTAINED IN THE PROPOSAL, THE COMP. GEN. IS UNABLE TO CONCLUDE THAT THE OPPORTUNITY EXISTS FOR AN OFFEROR TO INCREASE ITS CHARGES. IN VIEW OF THE FOREGOING, AND BECAUSE IT IS DOUBTFUL THAT ANY OF THE ALLEGED DEFICIENCIES IN THE SUBJECT RFP COULD BE DISADVANTAGEOUS TO COMPUTER, THE PROTEST IS DENIED.

TO CALIFORNIA COMPUTER PRODUCTS, INCORPORATED:

WE REFER TO YOUR TELEFAX DATED OCTOBER 26, 1971, AND SUBSEQUENT CORRESPONDENCE PROTESTING AGAINST THE AWARD OF ANY CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) NO. N00600-71-R-5080, ISSUED BY THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON, D.C.

SINCE NO AWARD HAS BEEN MADE AND A NEGOTIATED PROCUREMENT IS INVOLVED, OUR OFFICE IS LIMITED IN ITS RECITATION OF THE FACTS BY SECTION 3-507.2 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

THE SUBJECT RFP WAS ISSUED ON SEPTEMBER 23, 1970, FOR THE PROCUREMENT OF 3 X-Y PLOTTER SYSTEMS PLUS RELATED DATA, TRAINING AND MAINTENANCE. DUE TO VARIOUS TECHNICAL INQUIRIES FROM PROSPECTIVE OFFERORS, INCLUDING YOUR FIRM, CERTAIN CHANGES WERE MADE IN THE SPECIFICATIONS. ACCORDINGLY, THE RFP WAS AMENDED AND THE CLOSING DATE EXTENDED TO DECEMBER 21, 1970. PROPOSALS WERE RECEIVED, ALL OF WHICH WERE FOUND TECHNICALLY UNACCEPTABLE BUT SUSCEPTIBLE OF BEING MADE ACCEPTABLE THROUGH DISCUSSION. NEGOTIATION CONFERENCES AND EQUIPMENT DEMONSTRATIONS WERE HELD DURING MARCH 1971, RESULTING IN THE DELETION OF CERTAIN DATA REQUIREMENTS FROM THE RFP AND THE EXTENSION OF THE CLOSING DATE TO MAY 4, 1971.

BY LETTER DATED JULY 29, 1971, ADDITIONAL INFORMATION WAS SOLICITED FROM ALL OFFERORS TO ASSIST THE GOVERNMENT IN EVALUATING THE PROPOSAL. YOUR FIRM DID NOT FURNISH THE REQUESTED INFORMATION; INSTEAD YOU OBJECTED TO THE FORM AND SUBSTANCE OF THE INFORMATION REQUIRED BY REQUESTING ANSWERS TO CERTAIN SPECIFIC QUESTIONS AND BY SUGGESTING ALTERNATIVE METHODS OF FULFILLING THE GOVERNMENT'S NEEDS. IN RESPONSE TO THESE QUESTIONS ALL OFFERORS WERE INVITED TO DISCUSS WITH CONTRACTING AND TECHNICAL PERSONNEL THE STATUS OF THE PROCUREMENT. AT THESE MEETINGS THE FINAL AMENDMENT OF SEPTEMBER 14, 1971, WAS DISCUSSED WITH ALL THE OFFERORS.

ON SEPTEMBER 28, THE CLOSING DATE ESTABLISHED BY THE AMENDMENT OF SEPTEMBER 14, ALL OFFERORS, INCLUDING YOUR FIRM, SUBMITTED TECHNICALLY ACCEPTABLE PROPOSALS. YOUR FIRM PROTESTED THE SUBJECT PROCUREMENT BY TELEFAX DATED OCTOBER 26, 1971.

THE SEPTEMBER 14, 1971 AMENDMENT TO THE RFP WAS ISSUED MAKING CERTAIN CHANGES AND PROVIDING ANSWERS TO QUESTIONS PREVIOUSLY SUBMITTED:

"AS A RESULT OF OUR LETTER OF 29 JULY 1971, REQUESTING CERTAIN ADDITIONAL INFORMATION FROM ALL OFFERORS, THE FOLLOWING ISSUES WERE RAISED AND ARE DISCUSSED BELOW FOR THE ENLIGHTENMENT OF ALL PROPOSERS:

"QUESTION: WHICH COMPUTERS WILL BE RESPONSIBLE FOR SUPPLYING DATA FOR THE X-Y PLOTTER SYSTEM?

"ANSWER: THE COMPUTERS RESPONSIBLE FOR SUPPLYING DATA FOR THE X-Y PLOTTER SYSTEMS ARE SPECIFIED IN PARA. 1.3 OF THE CONTRACT SPECIFICATION AND ON PAGE 16 OF THE RFP.

"QUESTION: WHAT IS THE SPECIFIC CONFIGURATION OF THE COMPUTERS?

"ANSWER: SIGNIFICANT DIFFERENCES EXIST IN THE COMPUTER SYSTEM CONFIGURATION OF THE ASW SITES AND SINCE USE OF THE PLOTTERS IS OFFLINE (PARA. 1.1 OF THE SPECIFICATION) TO THE COMPUTER SYSTEM, THE SPECIFIC COMPUTER CONFIGURATIONS ARE NOT RELEVANT.

"QUESTION: HOW HAS THE FORMAT OR CODING CHANGED, IF AT ALL, ON THE IMPROVED MODEL II DDS SOFTWARE SINCE (NAME OF FIRM)'S SUCCESSFUL BENCHMARK (EQUIPMENT DEMONSTRATION) FOR THIS PROCUREMENT?

"ANSWER: THE IMPROVED MODEL II DDS SOFTWARE, SPECIFIED IN NPO LTR OF 29 JULY 1971, HAS INCURRED NO FORMAT OR CODING CHANGES. THE IMPROVEMENTS ARE ONLY IN THE APPLICATION PROGRAMS THAT HAVE BEEN DEVELOPED. THE X-Y PLOTTER FORMATTING REQUIREMENTS FOR CONVERSION ARE UNCHANGED.

"QUESTION: HOW WILL THE PLANNED ADVANCED AFCCS SOFTWARE EFFECT MODEL II DDS SOFTWARE AND THE CONTOURING, 3-DIMENSIONAL PLOTS, DRAFTING AND FLOW- CHARTING?

"ANSWER: THE PLANNED ADVANCED AFCCS SOFTWARE CURRENTLY IS UNDER DEVELOPMENT AND WILL UTILIZE FORTRAN & JOVIAL COMPILERS. THE SPECIFIC PLOTTING APPLICATIONS PROGRAMS ARE CURRENTLY UNDEFINED. THE CONTOURING 3- DIMENSIONAL, DRAFTING & FLOW CHARTING INFORMATION REQUESTED WILL ONLY BE UTILIZED IN THE CONSIDERATION OF PLOTTING CAPABILITIES IN THE DEVELOPMENT OF APPLICATIONS PROGRAMS FOR ADVANCED AFCCS. THE EFFECT OF THIS ADVANCED PLANNING ON CURRENT MODEL II DDS SOFTWARE UTILIZED IS NOT YET DEFINED.

"YOU ARE NOTIFIED THAT REQUEST FOR PROPOSAL NO. N00600-71-R-5080 IS HEREBY MODIFIED TO INCLUDE THE FOLLOWING ADDITIONAL REQUIREMENTS. ACCORDINGLY, OFFERORS ARE ADVISED THAT ANY INFORMATION FURNISHED IN RESPONSE TO THIS REQUIREMENT SHALL CONSTITUTE A MODIFICATION/REVISION TO ALL PRIOR SUBMISSIONS AND SHALL BE EVALUATED AS SPECIFIED IN PARAGRAPH 4 BELOW.

"1. SOFTWARE REQUIREMENTS:

A. EXACT DEFINITION OF USAGE OF THE SPECIFIED ROUTINES BY THE NAVY WILL BE DICTATED BY PRESENT AND FUTURE ASW OPERATIONS OF A GIVEN GEOGRAPHICAL AREA AND COULD VARY FROM SIMPLE TO COMPLEX USAGE. THEREFORE, PROVIDING CONTOURING, 3-DIMENSIONAL, DRAFTING AND FLOW CHARTING ROUTINES IS NOW A REQUIREMENT OF THE RFP. PROPOSERS ARE NOTIFIED THAT WHILE FAILURE TO PROVIDE THESE ROUTINES TO THE NAVY WILL NOT RESULT IN A NONRESPONSIVE PROPOSAL, IT WILL RESULT IN THE GOVERNMENT EVALUATING SUCH PROPOSALS BY ASSESSING THE FOLLOWING COSTS: $15,000 FOR CONTOURING, $20,000 FOR 3- DIMENSIONAL AND $10,000 FOR DRAFTING AND FLOW CHARTING. THESE FIGURES TOTALLING $45,000 ARE ESTIMATED COSTS OF GENERATING AND DISTRIBUTING TO THE ASW SITES, SIMILAR ROUTINES BY A GOVERNMENT ACTIVITY. PROPOSERS WHO INCLUDE THESE ROUTINES IN THEIR OFFERS SHALL SPECIFICALLY INDICATE THE COST OF PROVIDING THIS SOFTWARE FOR EACH OF THE THREE DESTINATIONS.

B. NAVY PURCHASING OFFICE LETTER OF 29 JULY 1971 REQUESTED EACH PROPOSER TO SPECIFICALLY GRANT PERMISSION FOR THE UNLIMITED OPERATIONAL USAGE AND EXCHANGE OF THE X-Y PLOTTER SOFTWARE PROGRAMS PROVIDED UNDER THIS PROCUREMENT. THIS REQUIREMENT IS HEREBY EXPANDED TO INCLUDE THE SPECIFIC ROUTINES OF PARAGRAPH 1A ABOVE. THIS REQUIREMENT IS CONSIDERED OPERATIONALLY AND ECONOMICALLY ADVANTAGEOUS TO THE NAVY AND IS A DEFINITE REQUIREMENT OF THE RFP. PERMISSION WILL AUTOMATICALLY BE ASSUMED UNLESS SPECIFICALLY NOTIFIED OTHERWISE AND INFORMED OF SPECIFIC COSTS TO THE GOVERNMENT FOR THIS USAGE AND EXCHANGE.

"4. EVALUATION CRITERIA. THE EVALUATION CRITERIA FOR THIS PROCUREMENT IS CHANGED TO READ AS FOLLOWS:

A. EACH PROPOSAL WILL BE EVALUATED FOR CONFORMANCE WITH ALL THE TECHNICAL REQUIREMENTS OF THE SOLICITATION AND AS TO THE LOWEST OVERALL TOTAL COST TO THE GOVERNMENT. THOSE COSTS TO BE EVALUATED ARE:

(1) PLOTTING EQUIPMENT

(2) SOFTWARE (AS QUOTED BY CONTRACTOR AND ASSESSED BY GOVERNMENT, IF APPLICABLE

(3) REPAIR PARTS (2 YEAR SUPPLY)

(4) REMEDIAL MAINTENANCE SERVICES

(5) TRAINING

(6) MAINTENANCE/OPERATING MANUALS

(7) INSTALLATION, ENGINEERING AND TECHNICAL SERVICES (IF PRICED SEPARATELY)"

YOUR PROTEST IS PRIMARILY BASED ON THE PREMISE THAT THE REQUEST FOR ADDITIONAL SOFTWARE INCLUDED IN THE ABOVE-CITED AMENDMENT IS TOO GENERAL AND AMBIGUOUS TO PERMIT A FAIR EVALUATION OF THE OFFERS RECEIVED. THEREFORE, YOU STATE, THE RFP SHOULD BE CANCELLED. MORE SPECIFICALLY, YOU ASSERT THAT THE AMENDMENT OF SEPTEMBER 14 PROVIDED UNSATISFACTORY ANSWERS TO THE QUESTIONS POSED IN YOUR LETTER OF AUGUST 10 AND THAT THE SOFTWARE SPECIFICATIONS ARE AMBIGUOUS IN THAT THEY (1) DO NOT SPECIFY WHAT TYPE OF SOFTWARE IS REQUIRED; (2) LEAVE UNDEFINED WHAT THE SOFTWARE REQUIREMENTS ARE AND (3) DO NOT SPECIFY WHETHER THE ACTIVITY WILL ACTUALLY ORDER THE SOFTWARE AND IF ORDERED WHEN DELIVERY WOULD BE REQUIRED. YOU FURTHER DETAIL THESE ALLEGATIONS BY MEANS OF A NUMBER OF SPECIFIC QUESTIONS DEALING WITH THE TECHNICAL SUFFICIENCY OF THE SPECIFICATIONS. YOU ALSO OBJECT TO THE LACK OF A BENCH MARK TEST IN CONNECTION WITH THE ADDITIONAL SOFTWARE. FINALLY, YOU ASSERT THAT THE AMENDMENT GIVES RISE TO THE POSSIBILITY OF A "BUY-IN."

IN RESPONSE TO YOUR ARGUMENT OF AMBIGUITY, THE ACTIVITY HAS INFORMED THIS OFFICE IN PERTINENT PART AS FOLLOWS:

"2. IN RESPONSE IT SHOULD BE NOTED THAT THE 29 JUL 71 LETTER REQUESTED EACH PROPOSER PROVIDE INFORMATION REGARDING THE INCLUSION OF THE BASIC ROUTINES IF PROVIDED AT NO COST IN THE PROPOSAL OR TO PROVIDE INFORMATION REGARDING THE AVAILABILITY AND COSTS OF THESE ROUTINES IN CONSONANCE WITH THE BASIC AND FUNCTIONAL SOFTWARE OFFERED. THE PURPOSE OF THIS WAS TO BE ABLE TO PROVIDE THE ASW USER WITH THE BASIC ROUTINES SO AS TO PERMIT THEM (THE ASW USER) TO DEVELOP THEIR INDIVIDUAL APPLICATIONS SOFTWARE. PROVIDING THE BASIC ROUTINES THAT THE SUCCESSFUL BIDDER POSSESSES WOULD ELIMINATE THE NEED FOR EACH ASW USER TO DEVELOP THESE BASIC ROUTINES. THESE POINTS WERE DISCUSSED WITH CALCOMP ON 2 AUG 1971. IN RESPONSE, CALCOMP BY THEIR LETTER OF 10 AUGUST 1971 POSED FOUR (4) SPECIFIC QUESTIONS REGARDING THE ELEMENTARY REQUIREMENTS OF THE SOFTWARE. THESE QUESTIONS, POSED WITHOUT SPECIFIC EXPLANATION AS TO WHY THIS INFORMATION WAS NEEDED, WAS ANSWERED BY NPO LETTER OF 14 SEPT 1971 TO ALL PROPOSERS AS WELL AS DISCUSSED DURING THE 14 SEPT CONFERENCE AT NPO. AT THAT TIME CALCOMP WAS REBRIEFED ON THE PURPOSE OF THE ADDITIONAL SOFTWARE, THEY WERE SPECIFICALLY NOTIFIED AS TO THE FACT THAT DETAILED OPERATING CHARACTERISTICS OF THE REQUESTED SOFTWARE WAS UNDEFINED AND COULD VARY FROM SIMPLE TO COMPLEX FOR PRESENT AND FUTURE OPERATIONS. THE DETAILED EVALUATION CRITERIA THAT WE WOULD USE WAS DISCUSSED DURING THIS CONFERENCE. CALCOMP AT THAT TIME DID NOT STATE ANY OBJECTION TO THIS CRITERIA. THEY WERE SPECIFICALLY NOTIFIED THAT NO OTHER COMPUTER SYSTEMS ARE TO BE CONSIDERED FOR THE SOFTWARE, OTHER THAN AS SPECIFIED IN THE RFP. WHEN QUESTIONED ABOUT WHY THEY NEEDED THE COMPUTER CONFIGURATION INFORMATION, THEY FAILED TO PROVIDE SATISFACTORY ANSWERS. CALCOMP WAS ALSO NOTIFIED THAT IN ORDER TO PROVIDE ALL INFORMATION THAT CALCOMP STATED THEY NEED WOULD REQUIRE A DETAILED RE-ANALYSIS OF INDIVIDUAL ASW USER OPERATING REQUIREMENTS. THIS WOULD OF NECESSITY REQUIRE ADDITIONAL TIME, WOULD CREATE DELAYS AND COULD VERY WELL JEOPARDIZE THE WHOLE PROCUREMENT DUE TO THE OPN FUNDING EXPIRATION. IT SHOULD BE NOTED HERE THAT DURING THE CONFERENCE OF 14 SEPT 1971, AND AFTER THE ABOVE WAS DISCUSSED, CALCOMP ASKED FOR AND RECEIVED PERMISSION TO PRIVATELY DISCUSS MATTERS AMONG THEMSELVES. UPON RETURNING TO THE CONFERENCE ROOM, THE NPO NEGOTIATOR AND NAVELECSYSCOM REP WERE NOTIFIED BY CALCOMP THAT THEY HAD GATHERED ALL NECESSARY INFORMATION AND THAT WE WOULD RECEIVE THEIR FAVORABLE REPLY SHORTLY. WHEN ASKED IF THEY HAD FURTHER QUESTIONS THEY ANSWERED NEGATIVELY. AT THIS TIME THEY DID NOT STATE THAT AMBIGUITIES EXISTED OR THAT THEIR INTENTIONS WERE TO PROTEST. THEY DID NOT QUESTION THE $45,000 FIGURE TO BE ASSESSED AGAINST ANY PROPOSER FAILING TO OFFER SOFTWARE. THUS CALCOMP TERMINATED THE CONFERENCE. THEIR TWX REPLY DATED SEPT 28, 1971 CONTAINED THE INFORMATION AS REQUIRED BY THE NPO LETTER OF 14 SEPT 1971 AND DID NOT CONTAIN ANY STATEMENT OR OBJECTION NOR ANY INDICATION THAT THEY WERE IN TREPIDATION OF BEING DISQUALIFIED AS NON-RESPONSIVE. RATHER THEY STATED THEY WERE PLEASED TO SUBMIT THIS BID. THE DESCRIPTIVE DATA FURNISHED BY THEIR 28 SEPT 1971 COMMUNICATION INDICATES THEY DID UNDERSTAND WHAT WAS REQUIRED IN THE PROPOSING OF THE BASIC ROUTINES."

IN CONNECTION WITH THAT PORTION OF YOUR PROTEST DEALING WITH THE TECHNICAL SUFFICIENCY OF THE SPECIFICATION, THIS OFFICE HAS OFTEN HELD THAT WHETHER SPECIFICATIONS ARE TECHNICALLY ADEQUATE TO PERMIT THE PROCUREMENT OF EQUIPMENT WHICH WILL MEET THE NEEDS OF AN AGENCY IS A QUESTION WHICH IS PRIMARILY WITHIN THE JURISDICTION OF THE CONTRACTING AGENCY, AND IN ANY PROCUREMENT THIS QUESTION MAY BE SUBJECT TO DIFFERING TECHNICAL OPINIONS. WHERE, AS HERE, SUCH A DIFFERENCE OF OPINION EXISTS, OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING AGENCY UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY IS IN ERROR. SEE B-165171, NOVEMBER 8, 1968. ALTHOUGH YOU OFFER A NUMBER OF ARGUMENTS TO SUPPORT YOUR CONTENTIONS, WE CANNOT SAY THAT THE EVIDENCE CONTAINED IN THE RECORD SUPPORTS A CONCLUSION THAT THE SUBJECT SPECIFICATIONS ARE SO VAGUE THAT OFFERORS COULD NOT BE EXPECTED TO RESPOND WITH ACCEPTABLE SOFTWARE.

YOU ALSO ASSERT THAT THE AMENDMENT OF SEPTEMBER 14 IS AMBIGUOUS IN THAT IT DOES NOT SPECIFICALLY STATE IF OR WHEN THE GOVERNMENT WOULD PURCHASE THE ADDITIONAL SOFTWARE. ALTHOUGH THE CLAUSE EMBODYING THE ADDITIONAL SOFTWARE REQUIREMENT MAY NOT BE A MODEL OF CLARITY, IT APPEARS TO CREATE AN OPTION ON THE PART OF THE GOVERNMENT TO REQUIRE DELIVERY OF THE SOFTWARE ITEMS IF AND WHEN THE ACTIVITY DEEMS THEM NECESSARY DURING THE PERFORMANCE OF THE CONTRACT. ON THE OTHER HAND, THE OFFEROR MAY IGNORE THIS PORTION OF THE RFP WITH THE UNDERSTANDING THAT HIS PROPOSAL WILL THEN BE SUBJECT TO AN ASSESSMENT OF $45,000, THE ESTIMATED COST OF GENERATING THE SUBJECT SOFTWARE IN-HOUSE. ACCORDINGLY, WE DO NOT BELIEVE THAT THE SUBJECT CLAUSE IS SO VAGUE AS TO REQUIRE CANCELLATION OF THE SUBJECT RFP AT THIS LATE DATE.

NEXT YOU CONTEND THAT THE RFP IS DEFECTIVE IN THAT BENCHWORK TESTS ARE REQUIRED FOR THE BASIC HARDWARE AND RELATED SOFTWARE ITEMS BUT NOT FOR THE ADDITIONAL SOFTWARE ITEMS SPECIFIED IN THE SUBJECT AMENDMENT. WE ARE INFORMED BY THE NAVY THAT SUCH TESTS WERE NOT REQUIRED BECAUSE OF THE OPTIONAL NATURE OF THE ADDITIONAL SOFTWARE. WE HAVE NO BASIS UPON WHICH TO QUESTION THE AGENCY'S JUDGMENT IN THIS MATTER. IN REGARD TO YOUR CONTENTION THAT THE SUBJECT SOFTWARE PROVISION GIVES RISE TO THE POSSIBILITY OF A "BUY-IN" PROPOSAL AS DEFINED BY ASPR 1 311, THE SUBJECT CLAUSE PROVIDES THAT THE COST OF ANY ADDITIONAL SOFTWARE OFFERED MUST BE CONTAINED IN THE PROPOSAL. IF INCLUDED, THE OFFERED PRICE FOR THIS ITEM IS THEN TO BE CONSIDERED AS A PORTION OF THE TOTAL COST EVALUATION, THE PRICE TO BECOME BINDING ON THE SUCCESSFUL OFFEROR UPON AWARD OF THE CONTRACT. THE FILE INDICATES THAT ALL THE OTHER OFFERORS HAVE INCLUDED SOFTWARE IN THEIR PRICE PROPOSALS. THEREFORE, WE CANNOT SAY THAT THE OPPORTUNITY EXISTS FOR AN OFFEROR TO INCREASE ITS SOFTWARE CHARGES UNDER THIS REQUIREMENT.

THE RECORD INDICATES THAT ALL OFFERORS, INCLUDING YOUR FIRM, RESPONDED TO THE SUBJECT RFP WITH PROPOSALS WHICH ARE TECHNICALLY RESPONSIVE TO ALL PROVISIONS OF THE RFP INCLUDING THAT PORTION DEALING WITH ADDITIONAL SOFTWARE. IN ADDITION, WE NOTE THAT THE RELATIVE STANDING OF YOUR PROPOSAL WAS NOT ADVERSELY AFFECTED BY THE OPTIONAL SOFTWARE PORTION OF YOUR PROPOSAL. ACCORDINGLY, WE DOUBT WHETHER IT MAY BE SAID THAT ANY OF THE ALLEGED DEFICIENCIES IN THE SUBJECT RFP COULD WORK TO THE PARTICULAR DISADVANTAGE OF YOUR FIRM.

FINALLY, IT MUST BE POINTED OUT THAT PRIOR TO THE SUBMISSION OF PROPOSALS YOUR FIRM WAS GIVEN THE OPPORTUNITY TO DISCUSS WITH AGENCY PERSONNEL THE VERY QUESTIONS WHICH ARE THE SUBJECT OF THE INSTANT PROTEST. ALTHOUGH YOU CONTEND THAT THE INFORMATION PROVIDED BY PROCUREMENT OFFICIALS DID NOT REMEDY THE ALLEGED AMBIGUITIES, THE FACT REMAINS THAT YOUR FIRM SUBMITTED A RESPONSIVE PROPOSAL.

IN VIEW OF THE FOREGOING, THE PROTEST MUST BE DENIED.