B-174597(1), APR 21, 1972

B-174597(1): Apr 21, 1972

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IT IS NOT THE POLICY OF GAO TO QUESTION ADMINISTRATIVE DETERMINATIONS OF TECHNICAL ACCEPTABILITY IN THE ABSENCE OF A CLEAR SHOWING OF ARBITRARY ABUSE OF DISCRETION. 48 COMP. IS UNABLE TO CONCLUDE THAT THE DEPARTMENT'S DETERMINATION. THAT PROTESTANT'S OFFER WAS NOT WITHIN THE COMPETITIVE RANGE BECAUSE OF THE INADEQUATE DESCRIPTION OF ITS SOFTWARE PROPOSAL AND THE CONDITIONS IMPOSED ON THE INCREMENTAL RECORDER SETS FOR THE SYSTEMS. WAS UNREASONABLE. SINCE ALTEK WAS IN NO WAY PREJUDICED BY THIS INTERPRETATION OF THE SPECIFICATION. ITS PROTEST IN THIS REGARD IS WITHOUT MERIT. THE DEPARTMENT'S FAILURE TO ISSUE A STOP WORK ORDER UPON RECEIPT OF THE PROTEST WAS BASED ON IT HAVING DETERMINED THAT THE ISSUES RAISED BY ALTEK WERE NOT SUFFICIENT TO REQUIRE CANCELLATION OF CALMA'S CONTRACT.

B-174597(1), APR 21, 1972

BID PROTEST - IMPROPER DETERMINATION OF COMPETITIVE RANGE - ALLEGED NONRESPONSIVENESS DECISIONS DENYING THE PROTEST OF ALTEK CORPORATION AGAINST AWARD OF A CONTRACT TO CALMA COMPANY UNDER AN RFP ISSUED BY THE DEPARTMENT OF COMMERCE FOR A NAUTICAL CHART GRAPHIC DIGITIZING SYSTEM. IT IS NOT THE POLICY OF GAO TO QUESTION ADMINISTRATIVE DETERMINATIONS OF TECHNICAL ACCEPTABILITY IN THE ABSENCE OF A CLEAR SHOWING OF ARBITRARY ABUSE OF DISCRETION. 48 COMP. GEN. 314 (1968). FROM THE RECORD THE COMP. GEN. IS UNABLE TO CONCLUDE THAT THE DEPARTMENT'S DETERMINATION, THAT PROTESTANT'S OFFER WAS NOT WITHIN THE COMPETITIVE RANGE BECAUSE OF THE INADEQUATE DESCRIPTION OF ITS SOFTWARE PROPOSAL AND THE CONDITIONS IMPOSED ON THE INCREMENTAL RECORDER SETS FOR THE SYSTEMS, WAS UNREASONABLE. FURTHER, THE DEPARTMENT HAS STATED THAT WHAT IT CONSIDERS TO BE "PENCIL FOLLOWER TYPE" DIGITIZERS MAY BE EITHER MECHANICAL OR ELECTRONIC. SINCE ALTEK WAS IN NO WAY PREJUDICED BY THIS INTERPRETATION OF THE SPECIFICATION, ITS PROTEST IN THIS REGARD IS WITHOUT MERIT. THE DEPARTMENT'S FAILURE TO ISSUE A STOP WORK ORDER UPON RECEIPT OF THE PROTEST WAS BASED ON IT HAVING DETERMINED THAT THE ISSUES RAISED BY ALTEK WERE NOT SUFFICIENT TO REQUIRE CANCELLATION OF CALMA'S CONTRACT. THE COMP. GEN. IS WITHOUT AUTHORITY TO QUESTION THE AGENCY'S DECISION IN THIS REGARD. FOR THE FOREGOING REASON THE PROTEST MUST BE DENIED.

TO ALTEK CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM DATED NOVEMBER 23, 1971, AND SUBSEQUENT CORRESPONDENCE CONCERNING YOUR PROTEST OF AN AWARD TO CALMA COMPANY UNDER REQUEST FOR PROPOSALS (RFP) 2-35123, ISSUED BY THE DEPARTMENT OF COMMERCE ON MAY 27, 1971, FOR A REQUIREMENT OF ONE NAUTICAL CHART GRAPHIC DIGITIZING SYSTEM, WHICH WAS SET FORTH IN THE SCHEDULE OF THE RFP AS FOLLOWS:

"THE CONTRACTOR AGREES TO PROVIDE THE NECESSARY PERSONNEL, FACILITIES, EQUIPMENT, SERVICES, AND MATERIALS TO DESIGN, FABRICATE, TEST, DELIVER, AND INSTALL ONE (1) NAUTICAL CHART GRAPHIC DIGITIZING SYSTEM IN ACCORDANCE WITH THE ATTACHED SCHEDULE, SPECIAL PROVISIONS, ENCLOSED NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION (NOAA). NATIONAL OCEAN SURVEY (NOS) SPECIFICATION DATED APRIL 1971, ENTITLED 'SPECIFICATIONS FOR NOS NAUTICAL CHART GRAPHIC DIGITIZING SYSTEM', AND OTHER PROVISIONS OF THIS SOLICITATION."

ON JULY 12, 1971, THE CLOSING DATE FOR THE PROCUREMENT, PROPOSALS WERE RECEIVED FROM TEN COMPANIES, INCLUDING YOUR FIRM AND CALMA. NINE OF THESE PROPOSALS WERE SUBSEQUENTLY EVALUATED BY A TECHNICAL EVALUATION TEAM IN ACCORDANCE WITH A SCORING SYSTEM ESTABLISHED BEFORE PROPOSALS WERE RECEIVED. ON THE BASIS OF SUCH EVALUATION CALMA'S PROPOSAL WAS ASSIGNED 710 OUT OF A POSSIBLE 1000 POINTS.

YOUR PROPOSAL, WHICH RANKED LAST AMONG THE EVALUATED OFFERS IN THE TECHNICAL AREA, WAS ASSIGNED 235 POINTS, AND DETERMINED TO BE OUTSIDE THE COMPETITIVE RANGE FOR THE PROCUREMENT, PRICE AND OTHER FACTORS CONSIDERED, ON SEPTEMBER 28, 1972. IN THIS REGARD THE DEPARTMENT STATES THAT YOUR PROPOSAL FAILED TO ADEQUATELY ADDRESS, AMONG OTHER REQUIREMENTS, THE ESSENTIAL ELEMENTS OF COMPUTER SOFTWARE AND SYSTEM ACCEPTANCE TESTING AS FOLLOWS:

"THE ALTEK PROPOSAL FAILED TO ADEQUATELY ADDRESS THE ESSENTIAL SYSTEM ELEMENT OF COMPUTER SOFTWARE. ADDITIONAL SOLICITATION INSTRUCTIONS AND CONDITIONS, INCLUDED AS PART OF THE RFP STATE THAT THE FUNCTION OF THE PROPOSED COMPUTER PROGRAMS SHOULD BE CLEARLY INDICATED. ALTEK'S PROPOSAL DID NOT DISCUSS SOFTWARE IN EVEN A RUDIMENTARY MANNER. TO HAVE ENTERED NEGOTIATIONS WITH ALTEK WITH NO BASE IN THE AREA OF COMPUTER SOFTWARE WOULD HAVE BEEN TO ENTER WITHOUT A SIGNIFICANT AND NECESSARY PART OF THE PROPOSAL.

"THE ALTEK PROPOSAL BRIEFLY MENTIONS SOFTWARE AND INCLUDES A 'TYPICAL' PROGRAM, NOT COMPLETELY IDENTIFIED AS TO ORIGIN OR USE, TO ATTEMPT TO MEET THE REQUIREMENTS OF THE RFP. THE RFP SPECIFICATIONS REQUEST A DESCRIPTION OF THE OUTLINED PROGRAMS AND OF THE COMPUTER MANUFACTURERS STANDARD SOFTWARE PACKAGE. THE ADDITIONAL SOLICITATION INSTRUCTIONS AND CONDITIONS REQUIRE THAT FUNCTIONS OF THE PROPOSED COMPUTER PROGRAMS SHOULD BE CLEARLY INDICATED IN GOOD DETAIL. THEY WERE NOT. FAILURE OF THE ALTEK CORPORATION PROPOSAL TO ADDRESS ITSELF TO A SYSTEM ELEMENT AS CRITICALLY IMPORTANT AS COMPUTER SOFTWARE WAS A MAJOR FACTOR IN REMOVING IT FROM FURTHER CONSIDERATION.

"GOVERNMENT REQUIREMENTS FOR ACCEPTANCE TESTING ARE DETAILED IN SECTION 7.3 OF THE RFP SPECIFICATIONS. ALTEK CORPORATION'S PROPOSAL OMITTED A RESPONSE TO MANY ESSENTIAL AREAS OF THIS SECTION.

"THE GOVERNMENT REQUESTED 14 DAYS ADVANCE NOTICE OF PRE-DELIVERY TESTING IN ORDER TO HAVE A REPRESENTATIVE WITNESS THE TESTS. ALTEK STATES THAT SUCH TESTS ARE PLANNED BUT GIVES NO INDICATION AS TO WHETHER THE PRESENCE OF A GOVERNMENT REPRESENTATIVE TO WITNESS THE TESTS FOR THE EXPRESS PURPOSE OF APPROVING THE TEST RESULTS IS ACCEPTABLE OR UNACCEPTABLE. THE ISSUE IS FURTHER CONFUSED BY ALTEK'S VARIOUS STATEMENTS THAT GOVERNMENT PERSONNEL ARE WELCOME FOR THE IMPLIED PURPOSE OF TRAINING DURING A 10-DAY PERIOD VARIOUSLY REFERRED TO AS A TRAINING PERIOD, TESTING PERIOD AND DEBUGGING PERIOD.

"THE EXAMINATION OF EQUIPMENT BY A GOVERNMENT REPRESENTATIVE PRIOR TO SHIPMENT IS OF VITAL IMPORTANCE BECAUSE IT IS THE LAST POINT AT WHICH A MISUNDERSTANDING, ERROR OR OMISSION REQUIRING PLANT FACILITIES CAN BE CORRECTED IN A TIMELY AND ECONOMICAL MANNER. TO ASSURE THAT PROPER CORRECTIONS FOR ANY DEFECT DISCOVERED IN THESE TESTS CAN BE EFFECTIVELY CORRECTED, THE SPECIFICATIONS STATE THAT THE GOVERNMENT SHALL HAVE THE PRIVILEGE OF DELAYING SHIPMENT UNTIL A SATISFACTORY DEMONSTRATION CAN BE PERFORMED. ALTEK CORPORATION OMITTED ANY COMMENT ON THIS REQUIREMENT.

"SECTIONS 7.3.4 AND 7.3.5 OF THE SPECIFICATIONS DEAL WITH GENERAL TESTS OF THE SYSTEM, AND DEPENDS ON MAGNETIC TAPE RECORDER COMPATIBILITY WITH OTHER GOVERNMENT TAPE UNITS FOR SUCCESS. SECTION 7.3.6 IS EXCLUSIVELY CONCERNED WITH MAGNETIC TAPE UNIT COMPATIBILITY. THE GOVERNMENT RECOGNIZES THE AREA OF TAPE UNIT COMPATIBILITY AS POTENTIALLY TROUBLESOME IN AN OPERATION OF THE TYPE INTENDED FOR THE SYSTEM UNDER DISCUSSION HERE. RECOGNIZING THAT RESULTS FROM THE TESTS REQUIRED BY SECTIONS 7.3.4, 7.3.5, AND 7.3.6 OF THE RFP SPECIFICATIONS DEPEND ON PROPER OPERATION OF EXISTING GOVERNMENT TAPE UNITS, THE GOVERNMENT IN AN ATTEMPT TO BE REALISTIC REQUIRES THAT DISCREPANCIES MUST BE RESOLVED. ALTEK CORPORATION COMPLETELY OMITTED ANY RESPONSE TO SECTIONS 7.3.5 AND 7.3.6 AND ANSWERED SECTION 7.3.4 ONLY BY AGREEING TO DIGITIZE ONE DOCUMENT. THEY RESERVED THE RIGHT TO REQUIRE THAT THE GOVERNMENT TAPE UNIT TO BE USED IN THE TEST BE PROPERLY DESKEWED AND MEET IBM SPECIFICATIONS. THEY DID NOT AGREE TO BASIC ACCEPTANCE REQUIREMENTS, THEREBY, AVOIDING RESPONSIBILITY FOR ANY DISCREPANCY RESULTING FROM THESE TESTS. THE FINAL PRODUCT OF THE DIGITIZER SYSTEM IS A TAPE WRITTEN ON THESE TAPE UNITS AND, THEREFORE, THEY MUST OPERATE PROPERLY.

"SECTION 7.3.7 OF THE SPECIFICATIONS COVERS TESTING OF ALL OTHER AREAS OF THE SYSTEM SUCH AS DIGITIZER ACCURACY AND REPEATIBILITY, EXTENDED OPERATION, MONITOR SYSTEM AND A BROAD RANGE OF TESTS COVERING OTHER POINTS AS DEEMED APPROPRIATE BY THE GOVERNMENT. ALTEK CORPORATION HAS ALSO OMITTED ALL COMMENT ON SECTION 7.3.7. THE GOVERNMENT CONTENDS THAT NO REASONABLY COMPLETE PROPOSAL COULD NEGLECT RESPONDING TO SECTION 7.3.7 OF THE SPECIFICATIONS.

"THE FAILURE OF THE ALTEK PROPOSAL TO ADDRESS ITSELF TO THIS VERY IMPORTANT AREA OF ACCEPTANCE TESTING (SECTION 7.3) WAS ANOTHER MAJOR FACTOR IN REMOVING IT FROM FURTHER CONSIDERATION."

ACCORDINGLY, THE DEPARTMENT STATES THAT THE CORRECTION OF THESE DEFICIENCIES WOULD HAVE NECESSITATED THE PREPARATION OF A NEW PROPOSAL AND, THEREFORE, SUCH DEFECTS REMOVED YOUR OFFER FROM FURTHER CONSIDERATION.

ON OCTOBER 5 AND 6, 1971, DISCUSSIONS WERE HELD WITH REPRESENTATIVES OF THE THREE COMPANIES, INCLUDING CALMA, DETERMINED TO BE IN THE COMPETITIVE RANGE. AFTER FINAL PROPOSALS WERE RECEIVED FROM THESE CONCERNS ON OCTOBER 18, 1971, PROCURING PERSONNEL DECIDED THAT CALMA'S PROPOSAL OFFERED THE BEST VALUE FOR THE PROCUREMENT AND, THEREFORE, AN AWARD WAS MADE TO THE COMPANY ON NOVEMBER 16, 1971.

THE ESSENTIAL BASIS OF YOUR PROTEST INVOLVES THE PROPOSITION THAT THE DEPARTMENT IMPROPERLY DETERMINED YOUR PROPOSAL TO BE OUTSIDE THE COMPETITIVE RANGE. IN THIS REGARD YOU STATE THAT THE RFP REQUIREMENT WHICH REQUESTED OFFERORS TO DESCRIBE THEIR STANDARD SOFTWARE PACKAGE WAS QUESTIONABLE AND THAT IT WOULD NOT HAVE BEEN REASONABLE TO HAVE SPENT A GREAT DEAL OF EFFORT TO DEVELOP SOFTWARE FOR THE PROPOSAL; THAT THE SAMPLES OF SOFTWARE INCLUDED IN YOUR PROPOSAL, TOGETHER WITH THE STATEMENT THAT YOU SPECIFICALLY AGREED TO MEET ALL SOFTWARE REQUIREMENTS, SHOULD HAVE BEEN SUFFICIENT FOR PURPOSES OF DETERMINING YOUR CAPABILITY IN THIS AREA; AND THAT THE GOVERNMENT WAS AWARE OF THE STANDARD SOFTWARE YOUR CONCERN WOULD PROVIDE UNDER THE CONTRACT.

WITH RESPECT TO THE OBJECTIONS RAISED BY THE GOVERNMENT CONCERNING YOUR RESPONSE TO SECTION 7.3, ENTITLED ACCEPTANCE TESTING, OF THE NOS SPECIFICATION, YOU STATE THAT THE SPECIFICATION REQUIRED THAT THE VARIOUS TYPES OF TESTING BE CARRIED OUT, AND, THEREFORE, YOUR PROPOSAL SHOULD NOT HAVE BEEN CRITICIZED FOR FAILING TO RESPOND TO MANDATORY REQUIREMENTS. ADDITIONALLY, YOU MAINTAIN THAT SECTION 7.3.1 OF YOUR PROPOSAL, WHICH RESERVED YOUR RIGHT TO REQUIRE THAT THE CALCOMP 900/718 MAGNETIC TAPE UNIT BE PROPERLY "DESKEWED" AND IN ACCORDANCE WITH IBM SPECIFICATIONS DURING THE INCREMENTAL RECORDER TESTS, WAS NEEDED TO PREVENT UNWARRANTED COSTS.

FEDERAL PROCUREMENT REGULATIONS (FPR) 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 CONSIDERED. "OTHER FACTORS" HAS BEEN HELD TO INCLUDE THE TECHNICAL ACCEPTABILITY OF PROPOSALS. COMP. GEN. 606 (1967). IN THIS CONNECTION, IT IS NOT OUR POLICY TO QUESTION ADMINISTRATIVE DETERMINATIONS OF THE ACCEPTABILITY OF TECHNICAL PROPOSALS IN THE ABSENCE OF A CLEAR SHOWING OF ARBITRARY ABUSE OF DISCRETION. 48 COMP. GEN. 314 (1968).

IN THE INSTANT CASE, THE PROCURING ACTIVITY CONTENDS THAT THE FAILURE OF YOUR CONCERN TO DESCRIBE YOUR STANDARD SOFTWARE PACKAGE AND APPLICATION PROGRAMS WERE CRITICAL DEFECTS, AND THAT THE CORRECTION OF THESE DEFECTS WOULD HAVE REQUIRED THE SUBMISSION OF A NEW PROPOSAL. ALTHOUGH YOU STATE THAT THE REQUIREMENTS FOR SUCH DOCUMENTATION WERE UNREASONABLE, WE BELIEVE YOU SHOULD HAVE RESOLVED THIS MATTER WITH THE PROCURING ACTIVITY BEFORE YOU SUBMITTED YOUR PROPOSAL, RATHER THAN ASSUMING THE DEPARTMENT WOULD WAIVE YOUR FAILURE TO SUBMIT THIS DOCUMENTATION.

FURTHERMORE, WE CANNOT AGREE THAT YOU WERE JUSTIFIED IN PLACING CONDITIONS ON THE GOVERNMENT'S RIGHT TO OBTAIN THE INCREMENTAL RECORDER TEST FROM THE PROSPECTIVE CONTRACTOR. ALTHOUGH YOU STATE SUCH RESERVATIONS WERE NECESSARY IN ORDER TO PREVENT YOUR CONCERN FROM INCURRING UNWARRANTED COSTS, WE BELIEVE YOU SHOULD HAVE ALSO ASKED THE PROCURING ACTIVITY ABOUT THE ACCEPTABILITY OF THESE RESERVATIONS BEFORE SUBMITTING YOUR OFFER.

THE FAILURE OF YOUR CONCERN TO HAVE MADE THESE INQUIRIES BEFORE THE CLOSING DATE FOR THE PROCUREMENT WAS APPARENTLY BASED ON YOUR ASSUMPTION THAT YOU WOULD BE AUTOMATICALLY AFFORDED THE OPPORTUNITY TO DISCUSS ANY DEVIATIONS FROM THE SPECIFICATIONS AND GIVEN THE OPPORTUNITY TO REVISE YOUR PROPOSAL, IF NECESSARY. HOWEVER, SECTION XIV, EVALUATION OF PROPOSALS, ADDITIONAL SOLICITATION INSTRUCTIONS AND CONDITIONS, OF THE RFP PROVIDED THAT THE GOVERNMENT RESERVED THE RIGHT TO ACCEPT ANY PROPOSAL WITHOUT NEGOTIATION AND THAT INITIAL PROPOSALS SHOULD BE SUBMITTED ON THE MOST FAVORABLE TERMS FROM A PRICE AND TECHNICAL STANDPOINT. IN VIEW OF THIS LATTER PROVISION, WE DO NOT BELIEVE THAT AN OFFEROR WOULD HAVE BEEN JUSTIFIED IN ASSUMING THAT THE PROCURING ACTIVITY WOULD AUTOMATICALLY AFFORD THE OPPORTUNITY TO REVISE A PROPOSAL WHICH DEPARTED FROM THE SPECIFIED REQUIREMENTS. ACCORDINGLY, WE FIND NO BASIS FOR QUESTIONING THE REJECTION, WITHOUT NEGOTIATION, OF UNACCEPTABLE INITIAL PROPOSALS, EVEN IF SUCH OFFERS ARE LOWER IN PRICE THAN TECHNICALLY ACCEPTABLE OFFERS. SEE B- 171905, JULY 20, 1971.

WITH RESPECT TO YOUR CONTENTION THAT THE STATEMENT IN SECTION 6.0, DIGITIZING SYSTEM SOFTWARE, OF YOUR PROPOSAL THAT THE "REQUIREMENTS OF THIS SECTION WILL BE MET AS SPECIFIED" SHOULD HAVE BEEN SUFFICIENT TO JUDGE THE ACCEPTABILITY OF YOUR PROPOSAL IN THIS AREA, WE BELIEVE SUCH ARGUMENT FAILS IN REGARD TO THE PROVISIONS OF THE SECTION WHICH REQUIRED OFFERORS TO DESCRIBE THEIR APPLICATION PROGRAMS AND STANDARD SOFTWARE PACKAGE. CLEARLY, A BLANKET PROMISE TO FURNISH A CONFORMING SYSTEM IS NOT AN ADEQUATE RESPONSE TO PROVISIONS OF THE RFP WHICH REQUIRE AFFIRMATIVE RESPONSES BY MEANS OF NARRATIVE AND OTHER DESCRIPTIVE INFORMATION. SEE B- 173264, DECEMBER 22, 1971.

WITH RESPECT TO THE OMISSIONS NOTED BY THE DEPARTMENT IN THE ACCEPTANCE TESTING SECTION OF YOUR PROPOSAL, WE DO NOT BELIEVE THE CORRECTION OF SUCH DEFECTS WOULD HAVE REQUIRED MAJOR REVISIONS IN YOUR PROPOSAL, OR THAT EXTENDED NEGOTIATIONS WOULD HAVE BEEN REQUIRED TO DETERMINE YOUR ACCEPTANCE OF THESE REQUIREMENTS. HOWEVER, THIS SHOULD NOT BE CONSTRUED AS ACCEPTANCE OF YOUR POSITION THAT THE SUBMISSION OF YOUR SIGNED OFFER ON STANDARD FORM (SF) 33, CONTAINING THE PHRASE "IN COMPLIANCE WITH THE ABOVE", WHICH REFERS TO THE STATEMENT, QUOTED ABOVE, IN THE SCHEDULE THAT THE CONTRACTOR AGREES TO PROVIDE THE SYSTEM IN ACCORDANCE WITH THE ENCLOSED NOS SPECIFICATION, INDICATED YOUR INTENT TO COMPLY WITH ALL ACCEPTANCE TESTING REQUIREMENTS. IN THIS REGARD, THE DEPARTMENT STATES THAT THE NOS SPECIFICATION WAS NOT ENCLOSED WITH YOUR PROPOSAL. IN VIEW THEREOF, WE DO NOT BELIEVE YOUR INTENT TO COMPLY WITH THE TESTING REQUIREMENTS WAS CLEARLY CONVEYED BY THE FORM OF YOUR SIGNED OFFER.

FROM OUR REVIEW OF THE RECORD WE CANNOT CONCLUDE THAT THE DEPARTMENT UNREASONABLY DETERMINED THAT YOUR PROPOSAL WAS NOT WITHIN THE COMPETITIVE RANGE BECAUSE OF THE INADEQUATE RESPONSES TO THE REQUIREMENTS FOR DESCRIPTIVE INFORMATION IN YOUR SOFTWARE PROPOSAL, AND THE CONDITIONS YOU IMPOSED ON THE INCREMENTAL RECORDER TESTS FOR THE SYSTEMS. IN THIS CONNECTION, THE RECORD INDICATES THAT YOU WERE AWARE OF THE REQUIREMENTS OF THE RFP IN THESE AREAS, BUT CHOSE NOT TO MEET THEM BECAUSE YOU BELIEVED THESE SPECIFICATIONS WERE UNDULY BURDENSOME. WE ARE THEREFORE CONSTRAINED TO ACCEPT THE DEPARTMENT'S TECHNICAL OPINION THAT YOUR PROPOSAL COULD NOT HAVE BEEN MADE ACCEPTABLE WITHOUT MAJOR REVISIONS IN THESE AREAS. YOU ALSO MAINTAIN THAT THE AWARD TO CALMA WAS MADE FOR EQUIPMENT NOT IN ACCORDANCE WITH THE REQUIREMENT OF THE SPECIFICATIONS THAT THE DIGITIZER BE OF THE "PENCIL-FOLLOWER TYPE." YOU MAINTAIN THAT SUCH SPECIFICATION REQUIRES A DIGITIZER OF THE MECHANICAL TYPE. IN THE DEPARTMENT'S SUPPLEMENTAL ADMINISTRATIVE REPORT, A COPY OF WHICH HAS BEEN FURNISHED TO YOU, THE PROCURING ACTIVITY HAS DESCRIBED IN DETAIL WHY IT CONSIDERS "PENCIL FOLLOWER TYPE" DIGITIZERS TO BE EITHER OF THE MECHANICAL OR ELECTRONIC TYPE. IT FURTHER STATES THAT SIX OF THE NINE PROPOSALS EVALUATED BY THE DEPARTMENT PROPOSED ELECTRONIC TYPE DIGITIZERS.

ASSUMING, FOR THE PURPOSE OF DISCUSSION, THAT YOUR INTERPRETATION OF THE SPECIFICATION IS THE ONLY PROPER ONE, AND THAT THE DEPARTMENT DID NOT CLEARLY CONVEY ITS INTENT TO ALSO CONSIDER ELECTRONIC DIGITIZERS, WE ARE NOT AWARE OF ANY REGULATION PREVENTING THE DEPARTMENT FROM CLARIFYING ITS INTENT IN THIS MATTER DURING NEGOTIATIONS SO LONG AS NO OFFEROR WAS EXCLUDED FROM THE COMPETITIVE RANGE FOR PROPOSING A MECHANICAL DIGITIZER. IN THIS CONNECTION, THE DEPARTMENT STATES THAT IT DID NOT DECIDE THAT YOUR CONCERN WAS OUTSIDE THE COMPETITIVE RANGE FOR HAVING PROPOSED A MECHANICAL TYPE DIGITIZER. IN VIEW THEREOF, WE CANNOT CONCLUDE THAT YOUR CONCERN WAS PREJUDICED BY PROPOSING A MECHANICAL TYPE TABLE FOR THE REQUIREMENT.

WITH RESPECT TO YOUR ALLEGATIONS THAT THE DEPARTMENT SHOULD HAVE IMMEDIATELY ISSUED A STOP WORK ORDER UPON RECEIPT OF YOUR PROTEST, WE HAVE BEEN ADVISED THAT THE DEPARTMENT CONSIDERED ISSUING SUCH ORDER, BUT DETERMINED THAT THE ISSUES RAISED BY YOUR PROTEST WERE NOT SUFFICIENT TO REQUIRE CANCELLATION OF CALMA'S CONTRACT OR TO ISSUE A STOP WORK ORDER. SINCE THE DETERMINATION TO ISSUE A STOP WORK ORDER IS VESTED IN THE PROCURING AGENCY, WE ARE WITHOUT AUTHORITY TO QUESTION ITS DECISION NOT TO ISSUE SUCH ORDER HERE.

FOR THE REASONS SET FORTH ABOVE, YOUR PROTEST MUST BE DENIED.