B-174479, JUN 21, 1972

B-174479, JUN 21, 1972

BID PROTEST - ALLEGED IMPROPER PROCUREMENT PROCEDURES DECISION DENYING THE PROTEST OF EMERSON ELECTRIC COMPANY AGAINST AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER AN RFP ISSUED BY THE FEDERAL AVIATION ADMINISTRATION. UNDER THE TERMS OF THE RFP, PROTESTANT WAS AWARE THAT THE ACCEPTABILITY OF ITS TECHNIQUE WAS DEPENDENT UPON CERTAIN OPERATIONAL AND TIME FACTORS AND THAT THE GOVERNMENT RESERVED THE RIGHT TO SELECT THE TYPE OF ANTENNA TO BE FURNISHED. IN VIEW OF THE URGENT NEED AND THE SHORT TIME AVAILABLE, THE COMP. GEN. CANNOT REQUIRE THE FAA TO NEGOTIATE FOR WHAT IT CONSIDERS TO BE AN OPERATIONALLY UNPROVEN DESIGN. ACCORDINGLY, THE PROTEST IS DENIED. HOWEVER, THE SECRETARY OF TRANSPORTATION HAS BEEN ADVISED OF THE INAPPROPRIATENESS OF USING A PREDETERMINED SCORE METHOD FOR EVALUATING THE EMERSON PROPOSAL.

TO EMERSON ELECTRIC COMPANY:

WE REFER TO YOUR LETTER OF NOVEMBER 16, 1971, AND SUBSEQUENT CORRESPONDENCE, WITH RESPECT TO REQUEST FOR PROPOSALS (RFP) WA5R-1 0314, ISSUED BY THE FEDERAL AVIATION ADMINISTRATION, RADAR AND NAVAIDS SECTION. YOU CONTEND THAT NO AWARD SHOULD BE MADE UNDER THE RFP TO ANOTHER FIRM IN THE ABSENCE OF NEGOTIATIONS WITH YOUR FIRM.

THE SUBJECT RFP WAS ISSUED BY FAA ON MAY 21, 1971, FOR THE DESIGN, DEVELOPMENT, AND TESTING OF AN ENGINEERING MODEL TACAN ANTENNA FOR "Y" TACAN CHANNELS IN ACCORDANCE WITH FAA ENGINEERING REQUIREMENT FAA-ER 330- 020 DATED FEBRUARY 25, 1971, AND RELATED DATA AND SPARE PARTS (ITEMS 1A THROUGH 12A). THE RFP ALSO CALLED FOR THE DESIGN OF AN ENGINEERING MODEL RTA-2 TACAN ANTENNA MODIFICATION IN ACCORDANCE WITH FAA SPECIFICATIONS, WITH TEST PROCEDURES, DATA, AND INSTRUCTION BOOKS INCLUDED (ITEMS 1B THROUGH 11B). EVALUATION FACTORS WERE SET FORTH FOR THE "Y" CHANNEL TACAN ANTENNA AND FOR THE RTA-2 TACAN ANTENNA MODIFICATION.

ON JULY 12, 1971, PROPOSALS FOR THE INSTANT PROCUREMENT WERE RECEIVED FROM YOUR FIRM AND FROM ITT, AVIONICS DIVISION, THE INCUMBENT CONTRACTOR FOR THE EXISTING TACAN ANTENNA SYSTEM. YOU PROPOSED AN ELECTRICALLY MODULATED ANTENNA WHILE ITTAV PROPOSED A ROTATING TACAN ANTENNA AS DESCRIBED IN THE FAA REFERENCED SPECIFICATION. ON NOVEMBER 5, 1971, THE FAA NOTIFIED YOUR FIRM THAT YOUR PROPOSAL WAS EVALUATED AND DETERMINED NOT TO BE ACCEPTABLE FOR NEGOTIATIONS BECAUSE OF TECHNICAL CONSIDERATIONS. THE LETTER STATED THE MAJOR AREAS OF INADEQUACY TO BE THAT YOUR PROPOSED MONITORING CONCEPT WAS EXCESSIVELY COMPLEX AND THE POWER LEVEL FOR THE ANTENNA DEICING SYSTEM WAS CONSIDERED TOO HIGH.

YOUR FIRM THEN FILED A PROTEST WITH OUR OFFICE. ESSENTIALLY, YOU HAVE CONTENDED THAT THE STATED DEFICIENCIES EITHER WERE EASILY CORRECTABLE BY NEGOTIATIONS (COMPLEX MONITORING SYSTEM) OR ELSE WERE CAUSED BY THE FAA SPECIFICATIONS THEMSELVES AND COULD BE CORRECTED BY MODIFYING THESE SPECIFICATIONS (THE POWER LEVEL FOR THE DEICING SYSTEM). YOU HAVE PRESENTED A FORCEFUL ARGUMENT IN BEHALF OF YOUR POSITION. HOWEVER, THE RECORD DISCLOSES THAT THE FAA REJECTION OF YOUR PROPOSAL STEMS FROM A MORE BASIC CONSIDERATION, AS DISCUSSED BELOW.

THE PURPOSE OF THIS PROCUREMENT IS TO DEVELOP AN ANTENNA WHICH WILL PROVIDE ADDITIONAL CHANNELS FOR USE IN CONNECTION WITH INSTRUMENT LANDING SYSTEMS. FAA STATES THAT THE EXISTING FREQUENCY CHANNELING (THE HIGH AND LOW "X" BAND) IS BECOMING SATURATED AND THAT IN ORDER TO PROVIDE SAFE NAVIGATION FOR THE INCREASED AIR TRAFFIC IT IS NECESSARY TO PROVIDE EXPANDED SERVICE VOLUME BY UTILIZING THE "Y" CHANNELS. FAA REPORTS THAT IT IS COMMITTED TO BEGIN OPERATING AT THE "Y" CHANNELS BY JANUARY 1973 AND THAT FULL "Y" CHANNEL CAPABILITY MUST BE AVAILABLE BY JULY 1974. TO MEET THE 1973 DEADLINE, IT PLANS TO MODIFY A SMALL NUMBER OF ITS EXISTING EQUIPMENTS FOR OPERATION ON THE FEW "Y" CHANNELS THAT BORDER ON THE EXISTING "X" FREQUENCY BANDS. FAA RECOGNIZES THAT THIS TECHNIQUE WILL ONLY MAKE A FEW CHANNELS AVAILABLE AND WILL ONLY HANDLE THE EMERGENCY OF PROVIDING "Y" CHANNELS DURING 1973. IN ORDER TO SATISFY THE FULL IMPLEMENTATION REQUIREMENT, FAA STATES THAT THE INSTANT "Y" CHANNEL DEVELOPMENT PROCUREMENT MUST BE CLOSELY FOLLOWED BY A TIMELY PRODUCTION PROCUREMENT. IN THIS REGARD, THE RFP CALLS FOR THE DEVELOPMENT OF ONE (1) ENGINEERING MODEL ANTENNA WITHIN 270 DAYS FROM DATE OF AWARD AND SIX (6) PREPRODUCTION SERVICE TEST MODEL ANTENNAS WITHIN 300 DAYS THEREAFTER, OR SOME 19 MONTHS FROM THE DATE OF AWARD. THE RFP IS ALSO INTENDED TO DEVELOP IMPROVEMENTS ON THE EXISTING ANTENNA PERFORMANCE (ITEMS 1B THROUGH 11B).

FAA FURTHER REPORTS THAT AT THE TIME THE RFP WAS ISSUED, IT RECOGNIZED THE POTENTIAL ADVANTAGE OF THE ELECTRONICALLY MODULATED ANTENNA TECHNIQUE. THE FAA WAS AWARE OF YOUR DEVELOPMENTAL WORK ON THIS TECHNIQUE UNDER AN AIR FORCE PROGRAM. THUS, FAA FELT THAT IF ITS EFFORTS TO EXPAND THE CAPACITY OF THE EXISTING "X" CHANNEL ANTENNAS WERE SUCCESSFUL, THE SPECIFICATIONS COULD BE RELAXED AND AN ELECTRONICALLY MODULATED ANTENNA COULD THEN BE CONSIDERED ON AN EQUAL BASIS WITH THE PROVEN MECHANICALLY ROTATING ANTENNA TECHNIQUE "ON THE GROUNDS THAT A TEST AND EVALUATION PERIOD COULD THEN BE TOLERATED AND STILL SUPPLY THE REQUIRED CHANNELS."

IT APPEARS THAT THE FAA ADVISED YOUR FIRM OF THIS SITUATION BEFORE THE RFP WAS ISSUED. IN A LETTER DATED MAY 5, 1971, THE FAA STATED TO YOUR FIRM THAT WHILE THE RFP WOULD BE OPEN TO BOTH THE MECHANICALLY ROTATING AND SOLID STATE (ELECTRONICALLY MODULATED) ANTENNA DESIGNS, IN VIEW OF THE URGENT NEED FOR INCREASED CHANNELS, THE FAA MIGHT FEEL COMPELLED TO "HEAVILY WEIGH" THE EVALUATION OF PROPOSALS IN FAVOR OF OPERATIONALLY PROVEN DESIGNS.

THE RFP AS ISSUED, UNDER NOTE 5, "TYPES OF TACAN ANTENNAS," STATED THAT THE ANTENNA SYSTEM COVERED BY THE REFERENCED FAA SPECIFICATION WAS OF THE PHYSICALLY ROTATING TYPE BUT THAT IN RESPONDING TO THE RFP

" *** OFFERORS MAY SUBMIT PROPOSALS ON THE PHYSICALLY ROTATING TYPE OR AN ELECTRONICALLY MODULATED ANTENNA TYPE; I.E; AN ANTENNA UTILIZING ELECTRONIC DEVICES IN LIEU OF PHYSICAL ROTATION TO PRODUCE MODULATION AND ROTATION OF THE ANTENNA PATTERNS. THE GOVERNMENT RESERVES THE RIGHT TO SELECT THE TYPE OF ANTENNA TO BE FURNISHED UNDER ANY CONTRACT RESULTING FROM THIS REQUEST FOR PROPOSALS."

IT IS REPORTED BY FAA THAT IN THE ENSUING PERIOD AFTER THE RFP WAS ISSUED AND BEFORE THE EVALUATION WAS COMPLETED IT BECAME CLEAR THAT THE IMPLEMENTATION TIME WAS NOT SUFFICIENT TO ALLOW AN EXTENSIVE HARDWARE EVALUATION PERIOD. THE FAA REPORT CONTINUES AS FOLLOWS:

"THIS, THEREFORE, REQUIRES THAT PROTOTYPE MODELS TO BE PURCHASED BE INSTALLED IN AN OPERATIONAL ENVIRONMENT. THIS PRECLUDES THE ABILITY TO EVALUATE DEVELOPMENTAL MODELS WHICH THE EVALUATORS AND RANTEC AGREE IS THE CLASSIFICATION OF THE EMA. THE INHERENT RISK OF THE EMA IS OBVIOUSLY TOO GREAT FOR THIS SITUATION. THIS WAS THE GOVERNING REASON FOR ELIMINATION OF THE EMA ANTENNA. THE REQUIREMENTS SUCH AS MONITORING AND DEICING WERE MAJOR CONTRIBUTING FACTORS IN THE RISK ESTIMATION, REFLECTED IN THE SCORING. THE FAA ATTEMPTS TO SCORE THE RANTEC ANTENNA ARE THEREFORE, PROOF POSITIVE THAT THE AGENCY WOULD HAVE CONSIDERED THE TECHNIQUE IF THE INHERENT TECHNICAL AND TIME FACTORS ALLOWED THIS LATITUDE. RANTEC WAS OFFICIALLY INFORMED BY LETTER OF THESE CONSIDERATIONS BEFORE THE RFP AND FULLY UNDERSTOOD THE CONSTRAINTS."

FINALLY, FAA RECOGNIZES THAT YOU ARE DEVELOPING A FEASIBILITY MODEL NONROTATING TACAN ANTENNA FOR THE AIR FORCE AT THE ROME AIR DEVELOPMENT CENTER, BUT NOTES THAT THIS ANTENNA DOES NOT INCLUDE DEICING OR A MONITORING SYSTEM. FAA ADVISES THAT THE AIR FORCE, THE NAVY AND THE FAA WILL JOINTLY EVALUATE THIS AIR FORCE PROCURED ANTENNA WHEN IT IS DELIVERED AND APPROVED, BUT THAT AT THIS TIME THE ANTENNA TECHNIQUE PROPOSED BY YOUR FIRM HAS NOT BEEN PROVEN AS A FEASIBILITY MODEL.

THE DECISION TO REJECT A PARTICULAR PROPOSAL QUITE CLEARLY CANNOT BE DIVORCED FROM A CONSIDERATION OF THE FACTS OF THE CASE. ALTHOUGH THE RFP PERMITTED PROPOSALS BASED ON THE ELECTRONICALLY MODULATED ANTENNA, WE THINK IT WAS MADE AMPLY CLEAR TO YOUR FIRM THAT THE ACCEPTABILITY OF THIS TECHNIQUE WAS DEPENDENT UPON CERTAIN OPERATIONAL AND TIME FACTORS. THE RFP STATED THAT THE GOVERNMENT RESERVED THE RIGHT TO SELECT THE TYPE OF ANTENNA TO BE FURNISHED. IN VIEW OF THE URGENT NEED AND SHORT TIME AVAILABLE, FAA DECIDED IT COULD NOT RISK SELECTION OF THE ELECTRONICALLY MODULATED ANTENNA DESIGN.

YOU CITE THE AIR FORCE CONTRACT AS INDICATING THAT YOUR ANTENNA DESIGN IS SUCCESSFUL. WE UNDERSTAND, HOWEVER, THAT THE AIR FORCE HAS NOT YET OFFICIALLY APPROVED YOUR "BREAD BOARD" MODEL, NOR HAS IT YET APPROVED THE DEVELOPMENT OF AN OPERATIONAL MODEL WHICH INCLUDES A DEICING AND MONITORING SYSTEM. WHILE THE AIR FORCE MAY BE OPTIMISTIC ABOUT YOUR DESIGN, IT MUST BE RECOGNIZED THAT THE FAA IS RESPONSIBLE FOR THIS PARTICULAR PROCUREMENT AND MUST MAKE THE JUDGMENTS INVOLVED. FAA HAS INDICATED THAT IF AND WHEN YOUR ANTENNA DESIGN IS PROVEN TO ITS SATISFACTION, SERIOUS CONSIDERATION WILL BE GIVEN TO THE USE OF SUCH ANTENNAS. IN THE MEANTIME, FAA FEELS THAT IT MUST AVOID CONTRACTING FOR WHAT IT CONSIDERS TO BE AN OPERATIONALLY UNPROVEN DESIGN.

BASED ON THE RECORD BEFORE US, WE CANNOT INSIST THAT THE FAA SHOULD CONDUCT NEGOTIATIONS WITH YOUR FIRM AND, THEREFORE, YOUR PROTEST MUST BE DENIED. HOWEVER, WE DO AGREE THAT IT WAS INAPPROPRIATE FOR THE FAA TO HAVE EMPLOYED THE USE OF A PREDETERMINED SCORE AS A STANDARD OF COMPARISON IN EVALUATING YOUR PROPOSAL, AND HAVE SO ADVISED THE SECRETARY OF TRANSPORTATION.