B-175365, JUN 19, 1972

B-175365, JUN 19, 1972

BID PROTEST - ALLEGED IMPROPER EVALUATION DECISION DENYING THE PROTEST OF STORAGE TECHNOLOGY CORPORATION AGAINST AWARD OF A CONTRACT UNDER AN RFP ISSUED BY THE DEPARTMENT OF LABOR FOR A HIGH SPEED MAGNETIC TAPE SUBSYSTEM. AS A GENERAL RULE, THE PROCURING ACTIVITY HAS THE PRIMARY RESPONSIBILITY FOR DETERMINING ITS MINIMUM NEEDS. B-166726, JUNE 24, 1970. IN THE INSTANT CASE, THE AGENCY HAS PRESENTED SUFFICIENT JUSTIFICATION FOR THE EVALUATION CRITERIA SET OUT IN THE RFP, INCLUDING ITS RELATIVELY STRINGENT DELIVERY REQUIREMENT. ACCORDINGLY, THERE EXISTS NO LEGAL BASIS FOR OBJECTION TO THE AWARD, AND THE PROTEST MUST BE DENIED.

TO STORAGE TECHNOLOGY CORPORATION:

WE REFER TO YOUR LETTER OF MARCH 3, 1972, PROTESTING AGAINST THE AWARD OF ANY CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) L/A 72-12, ISSUED BY THE U.S. DEPARTMENT OF LABOR (DOL), OFFICE OF ADMINISTRATIVE SERVICES. THE SOLICITATION WAS ISSUED ON FEBRUARY 18, 1972, AND REQUESTED PROPOSALS FOR FURNISHING A HIGH SPEED MAGNETIC TAPE SUBSYSTEM FOR A PREVIOUSLY INSTALLED IBM 360/65 ON A LEASE WITH PURCHASE OPTION BASIS TOGETHER WITH INSTALLATION AND MAINTENANCE, AT THE DEPARTMENT OF LABOR DEPARTMENTAL DATA PROCESSING CENTER (DDPC). ALTHOUGH YOUR PROTEST WAS MADE TO OUR OFFICE PRIOR TO THE AWARD OF A CONTRACT, THE DEPARTMENT OF LABOR, ON OR ABOUT MARCH 17, 1972, MADE A DETERMINATION OF URGENCY AND PURSUANT THERETO AWARDED A CONTRACT TO IBM.

THE RFP REQUIRED THAT DELIVERY AND INSTALLATION BE COMPLETED BY MAY 1, 1972, BUT STATED THAT EARLIER DELIVERY AND INSTALLATION WAS DESIRED. THE RFP ALSO CONTAINED THE FOLLOWING EXPLANATION OF THE EVALUATION CRITERIA:

"X. EVALUATION OF PROPOSALS

"A. THE FOLLOWING CRITERIA SHALL BE CONSIDERED IN EVALUATION OF PROPOSALS AT THE RELATIVE WEIGHTS INDICATED:

ITEM WEIGHT

RENTAL CHARGES 2

CONTINGENT EQUITY ACCURED

TOWARD PURCHASE 2

DELIVERY & INSTALLATION DATE 1

MAINTENANCE CHARGES 2.3

"B. ALL PROPOSALS WILL BE EXAMINED TO ESTABLISH THE LEASE-PURCHASE PLAN OFFERING THE LEAST OVER-ALL DOLLAR OUTLAY TO THE GOVERNMENT. THEN ALL PROPOSALS WILL BE EVALUATED ON THAT SAME PLAN IN CONSIDERATION OF ALL FACTORS TO ESTABLISH THE OVER-ALL MOST FAVORABLE PROPOSAL THAT WILL BE RECOMMENDED FOR AWARD. FOR PURPOSES OF EVALUATION RESIDUAL VALUE AND COST OF MONEY WILL BE CONSIDERED EQUAL. MAXIMUM POSSIBLE POINT SCORE IS 73.

"EACH PROPOSAL WILL BE SCORED AS FOLLOWS:

1. RENTAL CHARGES (TOTAL)

LOWEST PROPOSED X 20

THIS PROPOSAL

2. CONTINGENT EQUITY

TAPE DRIVES

% THIS PROPOSAL X 5

HIGHEST % PROPOSED

PERIOD THIS PROPOSAL X 5

LONGEST PERIOD PROPOSED

CONTROL UNITS

% THIS PROPOSAL X 5

HIGHEST % PROPOSED

PERIOD THIS PROPOSAL X 5

LONGEST PERIOD PROPOSED

3. MAINTENANCE

MAINTENANCE RATE

LOWEST PROPOSED X 10

THIS PROPOSAL

RESPONSE TIME

PRIME SHIFT

ON SITE (8 PTS)

OR 2 HOURS (6 PTS)

OTHER THAN PRIME SHIFT

2 HOURS (5 PTS)

OR 3 HOURS (3 PTS)

4. DELIVERY & INSTALLATION DATE

NOT LATER THAN 15 MARCH 72 (10 PTS)

NOT LATER THAN 1 APRIL 72 (6 PTS)

NOT LATER THAN 15 APRIL (3 PTS)

TOTAL SCORE

"C. ANY OFFEROR WHO IS UNDER CONTRACT WITH THE GENERAL SERVICES ADMINISTRATION FOR THE EQUIPMENT OR SERVICES REQUESTED IN THIS SOLICITATION SHALL INCLUDE IN HIS PROPOSAL A COPY OF HIS AUTHORIZED FEDERAL SUPPLY SCHEDULE PRICELIST."

YOU CONTEND THAT THE DELIVERY REQUIREMENTS ARE UNNECESSARILY RESTRICTIVE, THUS PRECLUDING FIRMS FROM SUBMITTING PROPOSALS AND THEREBY INCREASING THE GOVERNMENT'S COSTS. FURTHER, YOU ALLEGE THAT THE METHOD OF EVALUATION IS SO NEBULOUS THAT VENDORS CANNOT DETERMINE IN ADVANCE SPECIFICALLY HOW THEIR COSTS WILL BE EVALUATED. YOU ALSO CONTEND THAT VENDORS ARE NOT EVALUATED ON THEIR COSTS ALONE, "BUT RATHER, THEIR COSTS ARE ENTERED INTO A PROPORTION IN RESPECT TO THE PRICE OF THE OTHER VENDORS." YOU BELIEVE THAT THIS PROCEDURE INTRODUCES "ARITHMETIC GAMESMANSHIP" INTO THE EVALUATION WHICH IS MUTUALLY DISADVANTAGEOUS TO THE GOVERNMENT AND OFFERORS. THE EVALUATION EQUATIONS SET FORTH ABOVE REVEALS THAT THE TOTAL POINT SCORE WHICH A PARTICULAR VENDOR MIGHT RECEIVE IN ANY ONE CATEGORY IS BASED UPON A PROPORTIONAL RELATIONSHIP BETWEEN HIS PROPOSAL AND THE PROPOSAL MOST ADVANTAGEOUS TO THE GOVERNMENT (WHICH, OF COURSE, MAY BE THAT OF THE VENDOR BEING EVALUATED). ANY MEANINGFUL EVALUATION OBVIOUSLY INVOLVES A COMPARISON OF PROPOSALS. WE FAIL TO PERCEIVE HOW SUCH AN EVALUATION PROCEDURE IS DISADVANTAGEOUS TO THE GOVERNMENT OR PREJUDICIAL TO ANY INDIVIDUAL VENDOR. WE BELIEVE THE FOLLOWING FURTHER EXPLANATION PROVIDED BY THE CONTRACTING OFFICER (A COPY OF THE FULL REPORT WAS PREVIOUSLY FURNISHED TO YOU) ADEQUATELY ANSWERS THESE ALLEGATIONS:

"THE REQUIREMENT WAS EXTREMELY URGENT TO SUPPORT CURRENT NEEDS OF NEW PROGRAM REQUIREMENTS IN THE DEPARTMENT OF LABOR. PROGRAM PERFORMANCE NEEDS WERE MEASURED IN TERMS OF HOURS, DAYS, AND WEEKS. IT WAS ESSENTIAL THAT THE DEPARTMENT PLACE HIGH VALUE ON TIMELY DELIVERY AND INSTALLATION. A FINAL DELIVERY DATE OF MAY 1, 1972, WAS MANDATORY TO FULFILL THE OVERALL PLANS OF THE COMPUTER CENTER.

"PRIOR TO THE CLOSING DATE OF THE RFP, MARCH 6, 1972, THE PROTESTER, AFTER STATING MANY OF HIS OBJECTIONS, WAS REQUESTED TO SUBMIT HIS FORMAL PROPOSAL SO THAT DUE CONSIDERATION COULD BE GIVEN TO HIS POINTS AND ALTERNATIVES CONSIDERED BY THE DEPARTMENT. HE CHOSE NOT TO RESPOND.

"AFTER RECEIPT OF A COPY OF THE PROTEST LETTER, THE PROTESTER WAS INVITED TO MEET WITH THE ASSOCIATE ASSISTANT SECRETARY FOR POSSIBLE RESOLUTION OF THE PROTEST. IT WAS ASCERTAINED THAT THE PROTESTER COULD NOT MAKE ANY DELIVERIES PRIOR TO THE END OF SEPTEMBER, 1972. THIS DATE REPRESENTS FIVE FULL MONTHS LONGER LEAD TIME THAN THE MAY 1, 1972, DATE OF THE SUCCESSFUL PROPOSER. THIS LOSS OF TIME MEANS BOTH A LOSS OF DOLLARS FOR PAYMENT OF COMMERCIAL 'BACK UP' FACILITIES AND A GREAT HINDRANCE TO THE DEPARTMENT'S SCHEDULE OF PLANNED PROGRAM IMPLEMENTATIONS.

"THE DEPARTMENT HAS FULFILLED THE REQUIREMENTS OF THE FEDERAL PROCUREMENT REGULATIONS AND TREATED THE PROTESTER REASONABLY AND FAIRLY. ANY FURTHER CONSIDERATION WOULD UNDULY CONSTRAIN THE GOVERNMENT PROGRAM PROGRESS.

"THIS SOLICITATION WAS FOR AN INTERIM REQUIREMENT TO COVER THE IMMEDIATE HARDWARE NEEDS OF THE DATA CENTER. IT IS THE PLANNED INTENTION OF THE DEPARTMENT OF LABOR TO RESOLICIT THE MARKET AGAIN EARLY IN FISCAL YEAR 1973. THE NEW REQUIREMENT WILL BE FOR A LONGER PERIOD OF TIME, AND THE PROGRAM TIME CONSTRAINTS WILL NOT BE AS GREAT. IT SHOULD BE NOTED THAT THE AWARD WAS MADE FOR ONLY THREE MONTHS. THE OPTION TO EXTEND WILL ONLY BE USED TO INSURE ADEQUATE PROCUREMENT LEAD TIME FOR FOLLOW-ON REQUIREMENTS.

"EACH TIME THE DOL IS FORCED TO PROCESS DATA OUTSIDE OF ITS OWN DATA PROCESSING CENTER THE COST OF THAT PROCESSING INCREASES BY NOT LESS THAN 15% WHEN AND IF ANOTHER GOVERNMENT FACILITY CAN BE FOUND. THESE COSTS CLIMB 30-40% WHEN THE DOL IS FORCED TO USE A COMMERCIAL FACILITY. THESE EXTRAORDINARY COSTS DUE TO THE FORCED USE OF COMMERCIAL 'BACK UP' FACILITIES HAVE GONE TO FIGURES AS HIGH AS $50,000 PER MONTH. SUCH UNSCHEDULED AND/OR UNNECESSARY EXPENSE REQUIRES SPEEDY CORRECTION OF THESE PROBLEMS. THEREFORE, THE DOL/DDPC DEVELOPED A PLAN TO SYSTEMATICALLY AND METHODICALLY IMPROVE THEIR ADP FACILITIES TECHNICALLY WITHOUT RESORTING TO AN UNNECESSARY UPGRADING OF THE EQUIPMENT.

"THE DELIVERY REQUIREMENTS SET FORTH IN RFP L/A 72-12 WERE INDEPENDENTLY DEVELOPED AS AN INTEGRAL PART OF THE DOL/DDPC PLAN. DUE TO VARYING CONDITIONS, THESE REQUIREMENTS DO NOT AND CANNOT TAKE INTO ACCOUNT ANY VENDOR'S MANUFACTURING OR SCHEDULING CAPABILITIES. THIS PLAN WAS PRESENTED TO DOL MANAGEMENT IN DECEMBER, 1971. FOLLOWING THE NECESSARY CONSIDERATION AND APPROVAL, THESE PLANS WERE IMMEDIATELY MADE PUBLIC IN FEBRUARY, 1972 (RE: ADVERTISEMENT, COMMERCE BUSINESS DAILY, FEBRUARY 7, 1972). THE RFP (L/A 72-12) WAS PREPARED AND SYSTEMATICALLY REVIEWED IN CONSULTATIONS WITH GSA (REFERENCE EXHIBIT C) IN FEBRUARY, 1972. THE FINAL RFP (EXHIBIT B) WAS MADE PUBLIC ON FEBRUARY 22, 1972. THE CONTENTS OF THE RFP LISTED FOUR CALENDAR DATES AND PLACED EMPHASIS ON THEIR ORDER OF DESIRABILITY. THEY WERE:

- MARCH 15, 1972 - MOST DESIRABLE FOR INSTALLATION.

- APRIL 1, 1972 - DESIRABLE FOR INSTALLATION.

- APRIL 15, 1972 - DESIRABLE FOR INSTALLATION.

- MAY 1, 1972 - MANDATORY FOR FINAL INSTALLATION.

"IT IS THE DEPARTMENT'S POSITION THAT THESE DATES-FOR-INSTALLATION BASED ON PUBLIC KNOWLEDGE SINCE FEBRUARY 7 AND A POSSIBLE AWARD DATE OF MARCH 13 ARE BOTH REALISTIC AND NECESSARY TO THE DEPARTMENT'S OPERATION.

"THE RFP IN SECTION I.B ON PAGE 2 CLEARLY STATES HOW THE PROPOSED PRICES WILL BE EVALUATED. SECTION X CANNOT BE MORE SUCCINCT AND WAS EQUITABLY APPLIED."

SECTION X ON PAGE 7 OF THE RFP "EVALUATION OF PROPOSALS" SPECIFICALLY ADVISED OFFERORS THAT THE PROPOSED DELIVERY WOULD BE A PRIME FACTOR IN EVALUATION OF PROPOSALS. IN THE CIRCUMSTANCES WE DO NOT THINK THAT THE CRITERIA FOR SELECTION WERE SO VAGUE THAT IT CAN BE CONCLUDED THAT OFFERORS WERE NOT SUFFICIENTLY ADVISED OF ALL OF THE EVALUATION FACTORS AND OF THE RELATIVE WEIGHTS TO BE ATTACHED TO SUCH FACTORS. THIS OFFICE HAS CONSISTENTLY RULED IN NEGOTIATED AS WELL AS FORMALLY ADVERTISED PROCUREMENTS THAT THE PROCURING ACTIVITY HAS THE PRIMARY RESPONSIBILITY FOR DETERMINING ITS MINIMUM NEEDS. SEE B-169365, JUNE 30, 1970; B-166726, JUNE 24, 1970; AND B-168936, MAY 22, 1970. WE BELIEVE THAT DOL HAS FULLY EXPLAINED ITS RELATIVELY TIGHT DELIVERY REQUIREMENTS IN THE ADMINISTRATIVE REPORT (QUOTED ABOVE) AND IN LIGHT OF THE INTERIM NATURE OF THIS PROCUREMENT, WE FIND NO BASIS UPON WHICH TO QUESTION THE NEEDS OF THE PROCURING AGENCY.

YOU HAVE CITED VARIOUS EXAMPLES IN SUPPORT OF YOUR ALLEGATIONS. THE EXAMPLES WITH DOL'S COMMENTS (PREVIOUSLY FURNISHED TO YOU) ARE SET FORTH BELOW:

"1. THE DATE FOR CONVERTING THE EQUIPMENT FROM LEASE TO PURCHASE IS NOT SPECIFIED IN THE SOLICITATION.

COMMENT:

1. THIS IS A DATE THAT IS CONTINUALLY REEVALUATED BY THE DEPARTMENT AS IN A FUNCTION OF THE ADVANTAGE TO THE GOVERNMENT AT ANY GIVEN TIME. THE PURPOSE OF THIS AND OTHER ADP RFPS IS TO ESTABLISH JUST SUCH DATES FROM THE EVALUATIONS AND NEGOTIATIONS THAT RESULT. TO ESTABLISH SUCH A DATE PRIOR TO TESTING THE MARKET-PLACE IS EXTREMELY ILL-ADVISED.

"2. THE METHOD BY WHICH EVALUATION OF SEPARATE CHARGES FOR DISCONTINUANCE PRIOR TO THE EXPIRATION OF THE 48 MONTH EVALUATION PERIOD IS NOT STATED.

COMMENT:

2. GOVERNMENT REGULATIONS SPECIFICALLY PRECLUDE THE AUTHORITY TO CONTRACT FOR, AGREE TO, AND COMMIT TO SEPARATE CHARGES FOR DISCONTINUANCE, HENCE NO EVALUATION.

"3. THE DEFINITION AS TO 'UNBALANCED' PRICES FOR BASIC AND OPTIONAL EQUIPMENT IS NOT MADE. PARTICULARLY, IT SHOULD BE NOTED THAT UNBALANCED PRICES FOR THE BASIC AND OPTIONAL PERIOD ARE VIRTUAL REQUIREMENTS OF THE SOLICITATION, SINCE THE EVALUATION WILL INCLUDE RENTAL, PURCHASE CONVERSION COSTS AND MAINTENANCE COSTS. THE THREE SEPARATE COSTS NORMALLY VARY DRAMATICALLY AND HENCE RESULT IN UNBALANCED PRICES FOR THE VARIOUS PERIODS IN WHICH SUCH CHARGES ACCRUE.

COMMENT:

3. SECTION 1.B(3) OF THE RFP SPECIFICALLY ADMONISHES AGAINST THIS PRACTICE.

"4. THE EVALUATION CREDIT FOR DELIVERY REPRESENTS 7.3% OF THE TOTAL CONTRACT PRICE FOR THE 48 MONTHS, EVEN THOUGH THE DELIVERY ENVELOPE IS ONLY 6 WEEKS IN DURATION:FROM MARCH 15 TO MAY 1, 1972. THIS 6 WEEK PERIOD IS LESS THAN 3.0% OF THE 48 MONTH EVALUATION PERIOD.

COMMENT:

4. THE 48 MONTH PERIOD IS A PARAMETER DETERMINING 'LIFE CYCLE' AND IS NOT A PERIOD OF EVALUATION.

"5. THE WEIGHT GIVEN TO MAINTENANCE CHARGES IS GREATER THAN THE WEIGHT GIVEN TO EITHER RENTAL CHARGES OR PURCHASE CONVERSION COSTS. THE EXTRA WEIGHT GIVEN TO THESE MAINTENANCE CHARGES DENIES TO THE GOVERNMENT A REALISTIC APPRAISAL OF THE EQUIPMENT COSTS AND/OR PERFORMANCE. IN SHORT, A MAINTENANCE RATE OF $1.00 WHICH INCLUDES 'ON SITE/PRIME SHIFT' COVERAGE (A CRITICAL PHRASE WHICH IS NOT DEFINED IN THE SOLICITATION) AND 2 HOUR RESPONSE TIME OTHER THAN DURING THE PRIME SHIFT, WOULD COMMAND THE MAXIMUM EVALUATION CREDITS FOR MAINTENANCE. THE MAINTENANCE RATE COULD BE "MASKED" BY BEING LOADED INTO THE RENT/AND/OR PURCHASE CONVERSION PRICES SO THAT THE VENDOR APPEARS TO BE OFFERING FREE MAINTENANCE. THIS EVALUATION DEFICIENCY ALLOWS ONE VENDOR TO INCREASE HIS COMPETITIVE ADVANTAGE AND SIMULTANEOUSLY PENALIZE THE COMPETITIVE ADVANTAGE OF THE OTHER VENDORS BY ARITHMETICAL GAMESMANSHIP ON THE MAINTENANCE RATES.

COMMENT:

5. THIS SPECIFIC POINT IS ABSOLUTELY TRUE. LACK OF TIMELY AND ADEQUATE MAINTENANCE CAN AND HAS COST THE DEPARTMENT LOSS, OUT OF ALL PROPORTION TO ANY SINGLE ITEM OF CONSIDERATION. ANY VENDOR WHO 'MASKS' HIS MAINTENANCE CHARGES INTO HIS RENTAL FEE RELINQUISHES ALL POSSIBLE ADVANTAGES THAT HE MIGHT GAIN IN SECTION X.B.1 OF THE RFP FOR A POSSIBLE ADVANTAGE IN SECTION X.B.3. SUCH AN ATTEMPT CANNOT BE JUSTIFIED.

"6. MOREOVER, THE SOLICITATION APPEARS TO DENY CONSIDERATION FOR THE COST OF MONEY IN RESPECT TO THE STREAM OF PAYMENTS. THE COST OF MONEY IS REQUIRED AS A PRECONDITION BY OMB CIRCULAR A-54.

COMMENT:

6. ON THE CONTRARY, THIS SPECIFIC POINT WAS REVIEWED WITH GSA IN CONSULTATION. THE SPECIFIC ADDRESSING OF THIS POINT CAN BE FOUND IN SECTION X.B. OF THE RFP. THIS APPROACH HAS BEEN ADAPTED IN VIEW OF THE 48 MONTH 'LIFE CYCLE.' "7. THE SIGNIFICANCE OF IGNORING THE COST OF MONEY IS THAT VALID ECONOMIC DETERMINATION AS TO THE OPTIMUM PERIOD FOR CONVERSION TO PURCHASE CANNOT BE MADE. FOR EXAMPLE, CONVERSION TO PURCHASE WHICH TAKES PLACE IN THE FIRST YEAR IS CONSIDERED EQUALLY WITH PURCHASE CONVERSION WHICH TAKES PLACE SOMETIME DURING THE FOURTH YEAR.

COMMENT:

7. INVALID REFERENCE, ITEM 6 ABOVE."

YOU ALSO ALLEGE THAT THE TECHNOLOGICAL CONFIGURATION OF THE PROPOSAL DENIES TO DOL THE OPPORTUNITY TO EVALUATE ALTERNATIVE METHODS OF ACCOMPLISHING THE SAME TASKS. THE SWITCHING CAPABILITIES WHICH YOU RECOMMEND WERE INVESTIGATED BY DDPC AND FOUND TO BE DETRIMENTAL TO ITS OPERATION. HOWEVER, DDPC DID AVAIL ITSELF OF THE 3 X 14 SWITCHING ARRANGEMENT DETERMINED TO BE THE MOST DESIRABLE FOR ITS NEEDS. FIGURE 1 OF THE RFP MAKES CLEAR THE 3 X 14 COMBINATION PLANNED.

YOU FURTHER ALLEGE THAT IBM WAS GIVEN A COMPETITIVE ADVANTAGE BY HAVING BEEN MADE AWARE OF DOL'S REQUIREMENTS MANY MONTHS BEFORE THE RFP WAS ISSUED. DOL HAS RESPONDED THAT IBM WAS GIVEN NO ADVANCED KNOWLEDGE PRIOR TO THE ISSUANCE OF THE SOLICITATION. IN THE ABSENCE OF EVIDENCE IN SUPPORT OF THIS ALLEGATION, WE HAVE NO BASIS UPON WHICH TO DISPUTE THE ASSURANCES OF THE ADMINISTRATIVE AGENCY THAT YOUR ALLEGATION IS WITHOUT BASIS IN FACT.

YOU ALSO CONTEND THAT THE SOLICITATION PRESCRIBES AN EFFECTIVENESS LEVEL WHICH CANNOT BE MEASURED WITHOUT OPERATIONAL USE METERS. IT IS SIGNIFICANT TO NOTE THAT THE UTILIZATION OF OPERATIONAL USE METERS IN MEASURING ANY EFFECTIVENESS LEVEL IS AN ACCEPTED STANDARD IN THE INDUSTRY. FURTHERMORE, THE RFP DID NOT REQUIRE THE OFFEROR TO PROVIDE THE OPERATIONAL USE METER. DDPC HAS ALWAYS BEEN WILLING TO RELY ON THE OPERATIONAL USE METER LOCATED ON THE CPU MAIN FRAME TO PROVIDE THE MEASUREMENTS NEEDED TO DETERMINE THE EFFECTIVENESS LEVEL. FURTHER, AN OFFEROR NOT WISHING TO RELY ON THE METER ON THE CPU COULD HAVE PROVIDED A METER EXTERNAL TO THE CPU. SINCE THIS WAS A NEGOTIATED PROCUREMENT, YOU COULD HAVE PROPOSED ANY REASONABLE ALTERNATIVE TO THE MEASUREMENT REQUIREMENTS. IN ANY EVENT THE BUILT-IN METER THAT YOU ALLEGE IS A PROPRIETARY FEATURE OF IBM WAS CLEARLY NOT A REQUIREMENT OF THE SUBJECT SOLICITATION.

YOU NEXT ALLEGE THAT ALTHOUGH THE RFP REQUIRES A MINIMUM OF 100 HOURS OF POWER-ON METERED TIME AS A BASIS FOR COMPUTING THE AVERAGE EFFECTIVENESS LEVEL, VENDORS ARE NOT GUARANTEED THAT 100 HOURS OF METER TIME WILL BE PROVIDED BY THE GOVERNMENT DURING THE 30-DAY ACCEPTANCE TEST PERIOD. HOWEVER, SECTION VII.F. WHICH CONTAINS THIS REQUIREMENT, MAKES CLEAR THAT IF THE PLANNED OPERATIONAL USE HOURS ARE LESS THAN 100, SUFFICIENT SIMULATED OPERATIONAL USE TIME WILL BE PROVIDED TO OBTAIN THE REQUIRED 100 -HOUR POWER-ON METERED MINIMUM.

YOU FURTHER CONTEND THAT SEVERAL TERMS CRITICAL TO THE PERFORMANCE OF THE EQUIPMENT WERE NOT DEFINED IN THE SOLICITATION. THE DOL CONCEDES THAT THE TWO TERMS TO WHICH YOU REFER SHOULD HAVE BEEN DEFINED. HOWEVER, DOL HAS INFORMED US THAT THE OMISSION WAS NOT BOTHERSOME TO OTHERS WHO WERE SOLICITED NOR WAS IT PARTICULARLY GERMANE TO THEIR EVALUATION. FURTHER, DOL HAS INDICATED THAT ANY MISUNDERSTANDING OF DEFINITIONS WOULD HAVE BEEN CLARIFIED IN NEGOTIATIONS.

YOU ALSO COMPLAIN ABOUT THE STANDARD PROVISION GRANTING A CREDIT TO THE GOVERNMENT IN THE EVENT THAT PROCURED EQUIPMENT REMAINS INOPERATIVE DUE TO A MALFUNCTION THROUGH NO FAULT OR NEGLIGENCE OF THE GOVERNMENT. SINCE THIS PROVISION APPLIED TO ALL OFFERORS, WE CAN FIND NO PREJUDICE TO YOUR COMPANY.

YOU NEXT CONTEND THAT IT IS VIRTUALLY A PHYSICAL IMPOSSIBILITY FOR ANY VENDOR TO RECEIVE AN ORDER AND THEREAFTER GATHER THE REQUIRED CABLE SPECIFICATIONS AND INSTALL THE EQUIPMENT WITHIN A 9-DAY PERIOD, THE PERIOD OF TIME BETWEEN FINAL DATE FOR SUBMITTING PROPOSALS AND DATE OF INSTALLATION REQUIRED FOR MAXIMUM CREDIT IN THE EVALUATION. HOWEVER, THE RECORD DISCLOSES THAT A VENDOR DID PROPOSE TO COMPLY WITH JUST SUCH A TIMETABLE.

FINALLY, YOU CHALLENGE THE JUSTIFICATION FOR A NEGOTIATED PROCUREMENT IN THIS CASE. THE RECORD HAS REVEALED THAT A PROPER DETERMINATION AND FINDINGS WAS MADE AS REQUIRED BY THE FEDERAL PROCUREMENT REGULATIONS. FAIL TO FIND ANY BASIS UPON WHICH TO CHALLENGE THE AGENCY'S DETERMINATION.

IN VIEW OF THE FOREGOING WE FIND NO LEGAL OBJECTION TO THE AWARD. ACCORDINGLY, YOUR PROTEST IS DENIED.