B-174436, APR 19, 1972

B-174436: Apr 19, 1972

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ALTHOUGH THERE EXISTS A QUESTION OF FACT AS TO WHETHER THE TECHNICAL FACTORS FOR WHICH PROTESTANT'S BID WAS FOUND UNACCEPTABLE WERE DISCUSSED AT THE JULY CONFERENCE. IS PRIMARILY A MATTER OF PROCUREMENT RESPONSIBILITY AND WILL NOT BE QUESTIONED ABSENT A CLEAR SHOWING THAT THE AGENCY'S DISCRETION HAS BEEN ABUSED. IN VIEW OF THE FOREGOING THE PROTEST IS DENIED. TO DIGITAL DEVICE DEVELOPMENT CORPORATION: REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 9. THE MODEL IS TO BE USED AS A PART OF A SUBMARINE ANTENNA GROUP FOR AT-SEA TESTING OF AN EXPERIMENTAL SUPER HIGH FREQUENCY SATELLITE COMMUNICATION SYSTEM. THE SUBJECT RFQ WAS ISSUED ON NOVEMBER 6. A PRE-PROPOSAL CONFERENCE WAS HELD AT THE NEW LONDON LABORATORY.

B-174436, APR 19, 1972

BID PROTEST - TECHNICAL ACCEPTABILITY - DISPUTED QUESTION OF FACT DECISION DENYING THE PROTEST OF DIGITAL DEVICE DEVELOPMENT CORPORATION AGAINST AWARD OF A CONTRACT TO SCIENTIFIC ATLANTA, INC., UNDER AN RFQ ISSUED BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C. ALTHOUGH THERE EXISTS A QUESTION OF FACT AS TO WHETHER THE TECHNICAL FACTORS FOR WHICH PROTESTANT'S BID WAS FOUND UNACCEPTABLE WERE DISCUSSED AT THE JULY CONFERENCE, GAO MUST ACCEPT THE RECORD AS REPORTED BY THE PROCURING ACTIVITY IN THE ABSENCE OF ANY SUBSTANTIVE BASES TO THE CONTRARY. B-173522(2), JANUARY 25, 1972. FURTHER, IT HAS PREVIOUSLY BEEN HELD THAT A DETERMINATION OF COMPETITIVE RANGE, PARTICULARLY AS REGARDS TECHNICAL CONSIDERATIONS, IS PRIMARILY A MATTER OF PROCUREMENT RESPONSIBILITY AND WILL NOT BE QUESTIONED ABSENT A CLEAR SHOWING THAT THE AGENCY'S DISCRETION HAS BEEN ABUSED. IN VIEW OF THE FOREGOING THE PROTEST IS DENIED.

TO DIGITAL DEVICE DEVELOPMENT CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 9, 1971, WITH ENCLOSURES, PROTESTING AGAINST THE AWARD OF A CONTRACT TO SCIENTIFIC ATLANTA, INCORPORATED, UNDER REQUEST FOR QUOTATIONS (RFQ) NO. N00600-71 Q-5190, ISSUED BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C.

ON JULY 24, 1970, THE NAVY PURCHASING OFFICE RECEIVED A REQUIREMENT FROM THE NAVAL UNDERWATER SYSTEMS CENTER, NEWPORT, RHODE ISLAND, TO PROCURE BY NEGOTIATION EXPERIMENTAL, DEVELOPMENTAL OR RESEARCH WORK CALLING FOR THE INVESTIGATION, DETERMINATION OF THE OPTIMUM CONFIGURATION, DESIGN, DEVELOPMENT, AND TEST OF AN ADVANCED DEVELOPMENT MODEL MULTI-AXIS STABILIZED ANTENNA PEDESTAL AND ITS ASSOCIATED CONTROL UNIT. THE MODEL IS TO BE USED AS A PART OF A SUBMARINE ANTENNA GROUP FOR AT-SEA TESTING OF AN EXPERIMENTAL SUPER HIGH FREQUENCY SATELLITE COMMUNICATION SYSTEM. THE SUBJECT RFQ WAS ISSUED ON NOVEMBER 6, 1970, TO 39 FIRMS. ON OCTOBER 23, 1970, A PRE-PROPOSAL CONFERENCE WAS HELD AT THE NEW LONDON LABORATORY, NAVAL UNDERWATER SYSTEMS CENTER, WHICH WAS ATTENDED BY YOUR FIRM.

THE CLOSING DATE FOR RECEIPT OF PROPOSALS WAS SET FOR DECEMBER 31, 1970, AND IT IS REPORTED THAT TEN TECHNICAL PROPOSALS WERE SUBMITTED. THESE PROPOSALS WERE FORWARDED TO THE NAVAL UNDERWATER SOUND CENTER (NUSC) ON JANUARY 5, 1971, FOR REVIEW AND EVALUATION. THE EVALUATION REPORT INDICATED THAT ONLY ONE FIRM WAS TECHNICALLY ACCEPTABLE. DISCUSSIONS WERE THEN HELD WITH THE NU.S.C. REPRESENTATIVE TO REVIEW THE TECHNICAL EVALUATION. AS A RESULT OF THESE DISCUSSIONS, IT WAS DECIDED TO NEGOTIATE WITH ALL TEN FIRMS IN AN ATTEMPT TO OBTAIN ADDITIONAL ACCEPTABLE OFFERS. DISCUSSIONS WERE HELD ON JULY 7, 8, AND 9TH, DURING WHICH EACH OFFEROR WAS INFORMED OF THE DEFICIENCIES IN ITS ORIGINAL PROPOSAL. THE DEFECTS IN THE ORIGINAL PROPOSALS WERE ALSO DISCUSSED IN A TECHNICAL EVALUATION DATED JULY 15, 1971. REVISED PROPOSALS WERE INVITED FROM ALL TEN OFFERORS WITH A COMMON CLOSING DATE OF JULY 26, 1971. NINE OF THE OFFERORS SUBMITTED TIMELY REVISED PROPOSALS WHICH WERE FORWARDED TO NU.S.C. ON JULY 27, 1971. THREE OF THE NINE PROPOSALS WERE DETERMINED TO BE TECHNICALLY ACCEPTABLE. YOUR REVISED PROPOSAL WAS REJECTED SINCE IT WAS TECHNICALLY UNACCEPTABLE AND IT WAS BELIEVED THAT FURTHER NEGOTIATIONS WOULD BE FRUITLESS AS A MAJOR REDESIGN EFFORT WOULD HAVE BEEN REQUIRED TO MAKE THE PROPOSAL ACCEPTABLE.

CONTRACT NO. N00600-72-C-0400 IN THE AMOUNT OF $165,945 WAS AWARDED ON OCTOBER 22, 1971, TO SCIENTIFIC ATLANTA. BY LETTER DATED OCTOBER 22, 1971, THE NAVY PURCHASING OFFICE ADVISED YOUR FIRM THAT YOUR REVISED OFFER COVERING THE MULTI-AXIS ANTENNA PEDESTAL GROUP WAS NOT TECHNICALLY ACCEPTABLE BECAUSE -

" *** THE PROPOSED DESIGN INDICATES IT WOULD NOT MEET THE REQUIREMENT OF THE GOVERNMENT IN VIEW OF ITS INABILITY TO PROVIDE THE REQUIRED DYNAMIC POINTING ACCURACY WHEN THE SATELLITE, DUE TO SUBMARINE MOTION, PASSES THROUGH A LINE PERPENDICULAR TO THE PEDESTAL BASE AT MAXIMUM SPECIFIED VELOCITIES."

YOU CONTEND THAT THE FOREGOING WAS NOT PREVIOUSLY DISCUSSED AND THAT AFTER THE JULY CONFERENCE NO FURTHER TECHNICAL DISCUSSIONS WERE CONDUCTED. THEREFORE, YOU CONTEND THAT THE TECHNICAL NEGOTIATIONS WERE INCOMPLETE AND THAT YOUR PROPOSAL SHOULD NOT HAVE BEEN REJECTED WITHOUT FURTHER DISCUSSION.

INASMUCH AS THE OCTOBER 22, 1971, REJECTION LETTER USES TECHNICAL TERMINOLOGY DIFFERENT THAN THAT USED IN THE JULY 15, 1971, TECHNICAL EVALUATION TO WHICH YOUR AMENDED PROPOSAL WAS DIRECTED, WE DISCUSSED THE MATTER INFORMALLY WITH MR. W. RIGDON, THE TECHNICAL EVALUATOR RESPONSIBLE FOR THE ELECTRO-MECHANICAL AND ELECTRICAL ASPECTS OF YOUR PROPOSAL. MR. RIGDON ADVISED IN ESSENCE, THAT WHILE THE "AZIMUTH CUTOUT COMMAND" DISCUSSED ON PAGE 14 OF SECTION 2.2 OF YOUR ORIGINAL PROPOSAL WAS A VALID APPROACH WITHIN THE CONTEXT OF YOUR ORIGINAL PROPOSAL, WHICH PROVIDED FOR "AZIMUTH SWITCHING," THE ELIMINATION OF "AZIMUTH SWITCHING" IN YOUR AMENDED PROPOSAL RENDERED THAT APPROACH NO LONGER ADEQUATE FOR THE SOLUTION OF THE PROBLEM AT HAND, I.E., FULFILLING THE CALLED FOR DYNAMIC POINTING ACCURACY REQUIREMENTS. THUS, THE SPECIFIC DEFICIENCIES IN YOUR PROPOSAL WITH REGARD TO THE "AZIMUTH CUTOUT COMMAND" AND ITS EFFECT ON DYNAMIC POINTING ACCURACY WERE NOT DISCUSSED IN THE JULY 15 TECHNICAL EVALUATION BECAUSE AT THAT TIME THE "AZIMUTH CUTOUT COMMAND" WAS COMPATIBLE WITH THE APPROACH PROPOSED. HOWEVER, THE GENERAL PROBLEM OF DYNAMIC POINTING ACCURACY WAS ADDRESSED IN THE JULY 15 EVALUATION, AND THE TECHNICAL EVALUATION OF YOUR AMENDED PROPOSAL INDICATES THAT THE PROBLEM OF POINTING ERRORS WAS, IN FACT, DISCUSSED AT THE JULY CONFERENCE. FOR YOUR INFORMATION, THE TECHNICAL EVALUATION OF YOUR AMENDED PROPOSAL IS SET OUT BELOW:

"1. THIS PROPOSAL IS TECHNICALLY UNACCEPTABLE AS IS AND CANNOT BE MADE ACCEPTABLE WITHOUT MAJOR REDESIGN.

"2. THIS PROPOSAL IS FOR A TWO AXIS PEDESTAL AND DIGITAL CONTROL UNIT WITH THE PEDESTAL USING AN ELEVATION OVER AZIMUTH GIMBAL CONFIGURATION.

"3. THE PROPOSED DESIGN IS UNACCEPTABLE BECAUSE OF ITS INABILITY TO PROVIDE THE REQUIRED DYNAMIC POINTING ACCURACY WHEN THE SATELLITE, DUE TO SUBMARINE MOTION, PASSES THROUGH A LINE PERPENDICULAR TO THE PEDESTAL BASE AT MAXIMUM SPECIFIED VELOCITIES. THE REVISED PROPOSAL PROVIDED ACCEPTABLE SOLUTIONS TO MOST OF THE INITIAL DEFICIENCIES, HOWEVER, THE COMMENT ON THIS FUNDAMENTAL PROBLEM WAS THAT THE SOLUTION AS ORIGINALLY PROPOSED WOULD BE IMPLEMENTED. THIS ORIGINAL SOLUTION CONSISTED OF DISABLING THE AZIMUTH DRIVE ERROR LOOP WHEN THE DECK ELEVATION ANGLE WAS 90 DEGREES PLUS OR MINUS ABOUT 1 DEGREE WHICH WOULD THEREBY SIGNIFICANTLY REDUCE THE AZIMUTH DRIVE REQUIREMENTS. UNFORTUNATELY, THIS SOLUTION IS CORRECT ONLY FOR THE VERY LIMITED CASE WHERE THE LINE-OF-SIGHT TO THE SATELLITE STAYS WITHIN THE 90 DEGS OR 1 DEG CONE. FOR THE MORE GENERAL CASE, WHICH WAS DEFINED IN THE ORIGINAL TECHNICAL EVALUATION WHERE THE LINE-OF-SIGHT PASSES THROUGH THE ZENITH AT MAXIMUM SPECIFIED VELOCITIES THIS PROPOSED SOLUTION WILL CREATE LARGER POINTING ERRORS THAN WOULD RESULT FROM THE MORE CONVENTIONAL CONTINUOUS CONTROL OF THE AZIMUTH DRIVE. FURTHER, CONTINUOUS CONTROL OF THE AZIMUTH DRIVE, WHICH IS THE ONLY READILY IMPLEMENTED ALTERNATIVE TO THIS PROPOSED SCHEME, WILL REQUIRE AZIMUTH AXIS ACCELERATIONS AND VELOCITIES IN EXCESS OF THE VALUES ACHIEVABLE BY THIS PROPOSED DESIGN. IT SHOULD BE NOTED THAT THIS SPECIFIC PROBLEM WAS DISCUSSED DURING THE PROPOSAL REVIEW HELD AT NPO IN JULY.

"4. DETAILED EVALUATION OF THE REMAINING ITEMS IN THE REVISED PROPOSAL WAS NOT COMPLETED SINCE THIS FUNDAMENTAL PROBLEM RENDERED THE PROPOSED DESIGN UNACCEPTABLE."

ALTHOUGH YOU DISPUTE THE CONTRACTING OFFICER'S STATEMENT THAT THIS MATTER WAS DISCUSSED AT THE JULY CONFERENCE, IT IS OUR PRACTICE TO GIVE CONSIDERABLE WEIGHT TO THE FACTS AS REPORTED BY THE PROCUREMENT AGENCY WHEN, AS HERE, NO SUBSTANTIVE BASES HAVE BEEN FURNISHED TO BRING INTO QUESTION THE FACTUAL ACCURACY OF THE PROCUREMENT RECORD. SEE B 173522(2), JANUARY 25, 1972.

WITH REGARD TO THE NATURE AND EXTENT OF NEGOTIATIONS TO BE CONDUCTED WITH OFFERORS, PARAGRAPH 3-805-1 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), IN IMPLEMENTATION OF 10 U.S.C. 2304(G), REQUIRES THAT "WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE, AND OTHER FACTORS CONSIDERED." WHILE OUR OFFICE HAS HELD THAT A PROPOSAL MUST BE CONSIDERED TO BE WITHIN A COMPETITIVE RANGE SO AS TO REQUIRE NEGOTIATIONS UNLESS IT IS SO TECHNICALLY INFERIOR OR OUT OF LINE WITH REGARD TO PRICE THAT MEANINGFUL NEGOTIATIONS ARE PRECLUDED, WE HAVE ALSO RECOGNIZED THAT THE DETERMINATION OF COMPETITIVE RANGE, PARTICULARLY AS REGARDS TECHNICAL CONSIDERATIONS, IS PRIMARILY A MATTER OF PROCUREMENT RESPONSIBILITY WHICH WILL NOT BE QUESTIONED IN THE ABSENCE OF A CLEAR SHOWING THAT SUCH DETERMINATION CONSTITUTED AN ARBITRARY ABUSE OF DISCRETION. NO SUCH SHOWING HAS BEEN ADVANCED HERE. WE FIND NO ABUSE OF DISCRETION IN THIS CASE. SINCE YOUR REVISED TECHNICAL PROPOSAL WAS DETERMINED TO BE NO LONGER WITHIN THE COMPETITIVE RANGE, FURTHER DISCUSSIONS WITH YOUR FIRM WERE NOT REQUIRED AS A MATTER OF LAW OR REGULATION.

IN VIEW OF THE ABOVE, YOUR PROTEST IS DENIED.