B-175385, SEP 29, 1972

B-175385, SEP 29, 1972

BID PROTEST - EVALUATION OF PROPOSALS - DEBRIEFING DECISION DENYING THE PROTEST OF HOLOBEAM, INC., AGAINST REJECTION OF ITS TECHNICAL PROPOSAL UNDER A RFTP ISSUED BY THE SAN FRANCISCO PROCUREMENT AGENCY, DEPARTMENT OF THE ARMY, FOR A WEAPONS SCORING SYSTEM. ASPR 2-501 GIVES CONSIDERABLE LATITUDE TO TECHNICAL AND PROCUREMENT PERSONNEL IN DETERMINING WHETHER A TECHNICAL PROPOSAL IS ACCEPTABLE, UNACCEPTABLE BUT POTENTIALLY CAPABLE OF ACCEPTABILITY WITHOUT SUBSTANTIALLY CHANGING THE INITIAL PROPOSAL, OR SO UNACCEPTABLE THAT IT CANNOT BE MADE ACCEPTABLE WITHOUT SUBSTANTIALLY CHANGING THE INITIAL PROPOSAL. SUCH JUDGMENTS BY THE PROCURING ACTIVITY WILL NOT BE QUESTIONED UNLESS THERE IS EVIDENCE OF FRAUD, PREJUDICE, ABUSE OF AUTHORITY, ARBITRARINESS OR CAPRICIOUS ACTION. MOREOVER, A BIDDER WHOSE BID WAS DEEMED ENTIRELY UNACCEPTABLE NEED NOT BE DEBRIEFED IN THE FORMAL SENSE, NOR NEED FURTHER OPPORTUNITIES TO MAKE HIS PROPOSAL ACCEPTABLE BE GIVEN SUCH A BIDDER. ASPR 2-503.

TO HOLOBEAM, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 7, 1972, AND SUBSEQUENT CORRESPONDENCE PROTESTING THE REJECTION OF YOUR TECHNICAL PROPOSAL UNDER REQUEST FOR TECHNICAL PROPOSALS (RFTP) NO. DAAG05-72 RFTP-0123, ISSUED ON NOVEMBER 17, 1971, BY THE SAN FRANCISCO PROCUREMENT AGENCY, DEPARTMENT OF THE ARMY, AS THE FIRST STEP OF A TWO STEP PROCUREMENT CALLING FOR TECHNICAL PROPOSALS ON A WEAPONS SCORING SYSTEM.

THE RFTP CONTAINED THE FOLLOWING PERTINENT PROVISIONS:

"INITIAL CLEAR AND COMPLETE PROPOSALS: OFFERORS ARE ADVISED TO SUBMIT PROPOSALS WHICH ARE FULLY AND CLEARLY ACCEPTABLE WITHOUT ADDITIONAL EXPLANATION OR INFORMATION, SINCE THE GOVERNMENT MAY MAKE A FINAL DETERMINATION AS TO WHETHER A PROPOSAL IS ACCEPTABLE OR UNACCEPTABLE SOLELY ON THE BASIS OF THE PROPOSAL AS SUBMITTED AND PROCEED WITH THE SECOND STEP WITHOUT REQUESTING FURTHER INFORMATION FROM ANY OFFEROR. HOWEVER, IF THE GOVERNMENT DEEMS IT NECESSARY TO OBTAIN SUFFICIENT ACCEPTABLE PROPOSALS TO ASSURE ADEQUATE PRICE COMPETITION IN THE SECOND STEP OR DEEMS IT OTHERWISE DESIRABLE IN ITS BEST INTEREST, THE GOVERNMENT MAY, IN ITS SOLE DISCRETION, REQUEST ADDITIONAL INFORMATION FROM OFFERORS OF PROPOSALS WHICH THE GOVERNMENT CONSIDERS REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE BY ADDITIONAL INFORMATION CLARIFYING OR SUPPLEMENTING, BUT NOT BASICALLY CHANGING ANY PROPOSAL AS SUBMITTED, AND, FOR THIS PURPOSE, THE GOVERNMENT MAY DISCUSS ANY SUCH PROPOSAL WITH THE OFFEROR.

"EVALUATION OF PROPOSALS: YOUR TECHNICAL PROPOSAL WILL BE SUBJECT TO EVALUATION AND MUST INSURE BEYOND A DOUBT THE OFFEROR'S UNDERSTANDING OF THE WORK TO BE ACCOMPLISHED AND MUST BE IN SUFFICIENT DETAIL TO PERMIT A THOROUGH TECHNICAL ANALYSIS. FOR TECHNICAL PROPOSALS TO BE CONSIDERED ACCEPTABLE, THE OFFEROR'S PROPOSAL SHALL CONFORM TO THE REQUIREMENTS STATED IN CHARACTERISTICS FOR WESS 1312, INCLOSURE (1).

"THE TECHNICAL EVALUATION OF PROPOSALS SUBMITTED FOR THE FIRST STEP OF THIS PROCUREMENT WILL REQUIRE APPROXIMATELY 30 DAYS. PROPOSALS WILL BE EVALUATED USING THE CRITERIA SET FORTH IN INCLOSURE (2), AND WILL BE CATEGORIZED AS:

1. ACCEPTABLE;

2. REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE BY ADDITIONAL INFORMATION CLARIFYING OR SUPPLEMENTING, BUT NOT BASICALLY CHANGING THE PROPOSAL AS SUBMITTED; OR

3. IN ALL OTHER CASES, UNACCEPTABLE."

THE RECORD INDICATES THAT TECHNICAL PROPOSALS FROM YOUR CONCERN, AND FROM STANDARD LOGIC, INC., MARTIN-MARIETTA CORPORATION AND TRACOR, INC., WERE RECEIVED ON JANUARY 4, 1972. WHILE THE TECHNICAL BOARD APPOINTED TO REVIEW PROPOSALS DETERMINED THAT THE RESPONSES OF YOUR CONCERN AND STANDARD LOGIC WERE UNACCEPTABLE, IT FOUND THAT THE PROPOSALS OF MARTIN- MARIETTA AND TRACOR CORPORATION WERE SUSCEPTIBLE OF BEING MADE ACCEPTABLE.

BY LETTER OF JANUARY 28, 1972, FROM THE CONTRACTING OFFICER YOU WERE INFORMED OF THIS DETERMINATION, AND OF THE PRINCIPAL AREAS IN WHICH YOUR PROPOSAL WAS CONSIDERED DEFICIENT, AS FOLLOWS:

"A. INABILITY OF THE SYSTEM PROPOSED TO RECEIVE AND RELIABLY PROCESS MORE THAN ONE SIMULTANEOUS ENGAGEMENT BY AUTOMATIC WEAPONS OR COMMAND GUIDED MISSILES.

"B. THE CODING TECHNIQUE DESCRIBED AS PROPRIETARY AND ESSENTIAL TO THE PROPOSED SYSTEM DOES NOT INSURE RELIABLE DATA TRANSFER.

"C. THE AVAILABLE SIGNAL TO NOISE RATIO IS PRESENTLY MARGINAL. THIS CONDITION WOULD COMPOUND ANY ATTEMPT TO CORRECT THE DEFICIENCIES SET FORTH IN A AND B ABOVE. IN ADDITION, ANY ATTEMPT TO INCREASE LASER POWER TO IMPROVE THE SIGNAL TO NOISE RATIO WOULD REQUIRE A COMPLETE REDESIGN OF THE LWS."

ON FEBRUARY 7, 1972, THE PROCURING ACTIVITY GAVE YOUR CONCERN A DETAILED DEBRIEFING CONCERNING THE EVALUATION OF YOUR PROPOSAL. AT THIS MEETING YOU STATED, AMONG OTHER THINGS, THAT YOU COULD EASILY CORRECT YOUR PROPOSAL TO ACHIEVE THE DEPARTMENT'S REQUIREMENTS WITH MINOR REVISIONS TO YOUR OFFER.

THE CONTRACTING OFFICER STATES THAT YOU WERE THEN OFFERED A FINAL OPPORTUNITY TO SUBMIT IN WRITING THE DATA TO SUPPORT YOUR POSITION THAT EACH AREA OF UNACCEPTABILITY COULD BE MADE ACCEPTABLE WITH CLARIFICATIONS OR MINOR REVISIONS; THAT YOU SUBMITTED A RESPONSE TO THIS OFFER; AND THAT THE BOARD SUBSEQUENTLY REEVALUATED YOUR PROPOSAL. FOLLOWING SUCH REEVALUATION, THE RECORD SHOWS THAT THE BOARD AGAIN FOUND YOUR PROPOSAL TO BE UNACCEPTABLE, AND NOT SUSCEPTIBLE TO BEING MADE ACCEPTABLE WITHOUT SUBSTANTIALLY CHANGING YOUR INITIAL PROPOSAL. IN THIS CONNECTION, THE RECORD ALSO SHOWS THAT THE BOARD CONSIDERED OTHER AREAS OF YOUR PROPOSAL TO BE UNACCEPTABLE BUT SUSCEPTIBLE OF BEING MADE ACCEPTABLE; THAT IN MANY OF THESE AREAS THE BOARD FELT THERE WAS A GROSS ABSENCE OF DETAILED INFORMATION; AND THAT THE BOARD BELIEVED THE MAGNITUDE OF MISSING INFORMATION WAS FAR BEYOND THAT WHICH IT SHOULD REASONABLY BE EXPECTED TO SECURE FROM YOUR CONCERN.

THE ESSENTIAL GROUNDS OF YOUR PROTEST MAY BE SUMMARIZED AS FOLLOWS: (1) THE DEPARTMENT REJECTED YOUR PROPOSED SYSTEM FOR FAILING TO SHOW THE CAPACITY TO HANDLE FOUR SIMULTANEOUS ENGAGEMENTS WHICH, YOU ALLEGE, WAS NOT CLEARLY SET FORTH AS A REQUIREMENT IN THE SPECIFICATIONS; (2) YOUR CODING TECHNIQUE IS SUFFICIENT FOR .95 PROBABILITY OF DATA TRANSFER; (3) THE SIGNAL-TO-NOISE RATIO OF YOUR SYSTEM MEETS THE RFTP REQUIREMENTS; AND (4) YOUR CONCERN IS THE ONLY BIDDER WHICH HAS PREVIOUSLY DELIVERED THIS TYPE OF EQUIPMENT TO THE GOVERNMENT.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-501 DESCRIBES TWO-STEP FORMAL ADVERTISING AS A PROCEDURE FOR THE PROCUREMENT OF COMPLEX ITEMS REQUIRING TECHNICAL PROPOSALS. EVALUATION OF TECHNICAL PROPOSALS IS MADE IN STEP ONE, WHICH INVOLVES, IF NECESSARY, THE DISCUSSION OF TECHNICAL PROPOSALS TO DETERMINE THE ACCEPTABILITY OF THE SUPPLIES OR SERVICES OFFERED. ASPR 2-503.1(E) FURTHER STATES THAT ANY PROPOSAL WHICH MODIFIES, OR FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE RFTP SHALL BE CATEGORIZED AS UNACCEPTABLE.

AS WE STATED IN B-165457, MARCH 18, 1969, CONCERNING THE PROVISIONS OF ASPR 2-501:

"WE VIEW THE ABOVE PROVISIONS AS INVESTING IN THE TECHNICAL AND PROCUREMENT PERSONNEL CHARGED WITH THIS PROCUREMENT CONSIDERABLE LATITUDE IN FRAMING THE REQUIREMENTS TO BE MET BY PROPOSALS AND IN THEIR EVALUATION. *** WHETHER A PROPOSAL NEEDS CLARIFICATION TO BE DEEMED ACCEPTABLE, WHETHER A PROPOSAL CAN BE MADE ACCEPTABLE BY CLARIFICATION AND REASONABLE EFFORT BY THE GOVERNMENT, HOW MANY OR HOW FEW LETTERS OF CLARIFICATION MAY BE ADDRESSED TO A PROPOSER, ARE ALL MATTERS OF JUDGMENT ON THE PART OF THE PROCUREMENT AGENCY, WHICH WE WILL NOT QUESTION UNLESS THERE IS EVIDENCE OF FRAUD, PREJUDICE, ABUSE OF AUTHORITY, ARBITRARINESS OR CAPRICIOUS ACTION."

IN RESPONSE TO YOUR PROTEST, THE DEPARTMENT STATES THAT THE REQUIREMENT FOR THE SYSTEM TO PROCESS FOUR SIMULTANEOUS ENGAGEMENTS WAS CLEARLY SET FORTH IN PARAGRAPHS 3.1.2.2.1 AND 3.1.2.2.3 OF THE RFTP IN PERTINENT PART, AS FOLLOWS:

"3.1.2.2.1 DATA SORTER. THE DATA SORTER RECEIVES THE AMPLIFIED SIGNAL OF THE FIRING LWS FROM THE DAS.

"3.1.2.2.3 STORAGE. OUTPUT OF DATA SORTER AND HIT COUNTER SHALL BE STORED FOR UP TO FOUR SIMULTANEOUS ENGAGEMENTS."

ADDITIONALLY, THE DEPARTMENT STATES THAT THIS REQUIREMENT WAS STRESSED AT THE PRESOLICITATION CONFERENCE FOR THE PROCUREMENT WHICH WAS HELD ON DECEMBER 1, 1971, AS FOLLOWS:

"PROTESTOR WAS AWARE OF THIS REQUIREMENT EVEN BEFORE THE RFTP WAS ISSUED AND WAS PRESENT AT THE PRE-SOLICITATION CONFERENCE WHEN THE MULTIPLE ENGAGEMENT CAPABILITIES REQUIRED OF THE SYSTEM WERE DESCRIBED IN GREAT DETAIL. THE OPERATIVE WORDS IN QUESTION 22 OF THAT CONFERENCE ARE 'PRECISELY THE SAME TIME' WHICH WAS USED TO DEFINE THAT PARTICULAR PART OF A SIMULTANEOUS ENGAGEMENT WHEN TWO OR MORE ATTACKERS SIGNAL WORDS COULD BE ACTUALLY SUPERIMPOSED. IT WAS USED TO DISTINQUISH THAT LOW PROBABILITY OCCURRENCE FROM THE MORE LIKELY EVENT OF TWO OR MOR ATTACKERS WHOSE LASER MESSAGES ARE INTERLEAVED (NOT SUPERIMPOSED) DURING THE SAME 3 SECOND POLLING PERIOD. THE ABILITY TO HANDLE MULTIPLE ENGAGEMENTS REQUIRES THE WORD LENGTH TO BE SHORT ENOUGH TO ALLOW INTERLEAVING WITHOUT CONTINUOUS SIMULTANEOUS IMPOSITION OF SIGNALS."

WITH RESPECT TO THE CAPABILITY OF YOUR PROPOSED SYSTEM TO PROCESS FOUR SIMULTANEOUS ENGAGEMENTS, THE DEPARTMENT FURTHER REPORTS THAT THERE WAS AN EXTREMELY SMALL STATISTICAL PROBABILITY THAT YOUR SYSTEM COULD MEET THIS REQUIREMENT, AS FOLLOWS:

"THE HOLOBEAM LETTER STATES THAT IT IS THEIR INTENTION TO HAVE THE 50 MSEC BLANKING CIRCUITS INDEPENDENTLY ASSOCIATED WITH EACH BIT ACCUMULATOR, THUS ALLOWING SIGNALS FROM OTHER WEAPONS TO PASS TO THEIR RESPECTIVE BIT ACCUMULATORS. A REDRAWN FUNCTIONAL BLOCK DIAGRAM OF THE SPCLU DECODER WAS SUBMITTED. AN ANALYSIS OF THIS BLOCK DIAGRAM REVEALS THAT THERE IS A PROBABILITY OF 0.000006 (1X.03X.02X.01) THAT FOUR ENGAGEMENTS WILL BE PROPERLY DECODED, SORTED, AND STORED AFTER RECEPTION BY THE DAS. THIS VANISHINGLY SMALL PROBABILITY CLEARLY IS NOT RESPONSIVE TO THE WESS SPECIFICATION."

BASED ON OUR REVIEW OF THE RECORD, WE CANNOT CONCLUDE THAT THE REQUIREMENT FOR PROCESSING FOUR SIMULTANEOUS ENGAGEMENTS WAS NOT CONVEYED TO ALL OFFERORS, OR THAT YOUR REVISED PROPOSAL SHOWED THAT YOUR CONCERN COULD COMPLY WITH THIS REQUIREMENT WITHOUT MAJOR REVISIONS TO YOUR OFFER.

WITH RESPECT TO YOUR ALLEGATION THAT YOUR PROPOSED SYSTEM MEETS THE REQUIRED PROBABILITY OF DATA TRANSFER, THE DEPARTMENT DISAGREES WITH YOUR POSITION, AS FOLLOWS:

"THE REQUIREMENT FOR THE WESS CALLS FOR 95% PROBABILITY OF VALID DATA TRANSFER; THIS IS NOT TIED TO ANY FINITE NUMBER OF ATTACKERS BUT REQUIRES A SYSTEM WHOSE CODING TECHNIQUES INSURE THAT SUCCESS PROBABILITY, WHILE SATISFYING THE OTHER OPERATIONAL CHARACTERISTICS REQUIRED OF THE WESS.

"THE STATEMENT THAT S/N IS SUFFICIENT FOR 0.95 PROBABILITY OF DATA TRANSFER WITH A 5.8 WATT LASER OUTPUT TOTALLY IGNORES SCINTILLATION EFFECTS AS WELL AS MANY OTHER PERTURBATIONS, AND THEREFORE IS NOT TRUE. *** IN VIEW OF THE FACT THAT PROPER WEAPON CLASS DATA IS EQUALLY AS IMPORTANT AS THE ATTACKER ID, THE REDUNDANCY IN TRANSMITTING ONE TYPE DATA BUT NOT THE OTHER CAN NOT BE JUSTIFIED. SINCE HOLOBEAM HAS CHOSEN TO GO TO THE ADDED COST AND COMPLEXITY OF TRANSMITTING ID REDUNDANTLY, IT WOULD APPEAR THAT EITHER THE DATA LINK IS SO POOR THAT THE REDUNDANCY IS REQUIRED TO PROVIDE ACCURATE DATA OR HOLOBEAM DOES NOT UNDERSTAND THE IMPORTANCE OF KEEPING THE SYSTEM AS SIMPLE AND RELIABLE AS POSSIBLE. THE LACK OF A PARITY CHECK ON THE NUMBER OF BITS IN A WORD LEAVES THE SYSTEM VULNERABLE TO IMPROPER DECODING OF NOISE OR DATA WHICH HAS BEEN GARBLED BY OVERLAP OF MESSAGES FROM TWO OR MORE ATTACKERS. SUCH ERRONEOUS DECODING COULD PRODUCE MEANINGLESS AND CONFUSING DATA WHICH COULD BIAS TEST RESULTS. ALTHOUGH AN ALLOWABLE FALSE ALARM RATE WAS NOT SPECIFIED IN WESS 1312, IT SHOULD BE APPARENT THAT DEVELOPMENT OF ERRONEOUS DATA IS APT TO PREJUDICE TEST RESULTS AND CAN NOT BE TOLERATED."

IN THIS CONNECTION, YOU ALSO STATE THAT THE BOARD ERRONEOUSLY RELIED ON AN ANALYSIS BY THE U.S. ARMY COMBAT DEVELOPMENTS EXPERIMENTATION COMMAND (CDEC) TO DETERMINE THAT YOUR PROPOSAL DID NOT MEET THE DATA TRANSFER REQUIREMENT. IN REPLY TO YOUR ALLEGATION THE DEPARTMENT HAS ADVISED THIS OFFICE THAT THE CDEC ANALYSIS WAS NOT USED AS A BASIS FOR ACCEPTING OR REJECTING YOUR PROPOSAL; THAT THE ANALYSIS WAS USED IN AN ATTEMPT TO GET INFORMATION TO SUBSTANTIATE THE PERFORMANCE CLAIMS FOR YOUR SYSTEM; AND THAT NEITHER YOUR PROPOSAL NOR THE CDEC ANALYSIS DEMONSTRATED THE REQUIRED PROBABILITY FOR TRANSMITTING DATA. BASED ON OUR REVIEW OF THE RECORD, WE SEE NO BASIS FOR DISPUTING THE DEPARTMENT'S TECHNICAL POSITION CONCERNING THE UNACCEPTABILITY OF YOUR PROPOSAL IN THIS AREA, OR THAT THIS DEFICIENCY COULD NOT HAVE BEEN CURED WITHOUT MAJOR REVISIONS TO YOUR PROPOSAL.

WITH REGARD TO THE UNACCEPTABILITY OF YOUR SIGNAL-TO-NOISE RATIO, THE BOARD'S MATHEMATICAL ANALYSIS SHOWED THAT YOUR PROPOSED LASER RADIATED ONLY 5 WATTS; THAT 10.8 WATTS WERE REQUIRED FOR .95 PROBABILITY OF DETECTION; AND, THAT THE SIGNAL-TO-NOISE RATIO PROPOSED BY YOUR CONCERN WAS THEREFORE TOO LOW TO PERFORM AS SPECIFIED EVEN WITHOUT CONSIDERING THE EFFECTS OF SCINTILLATION. UNDER THE CIRCUMSTANCES, WE MUST AGREE WITH THE DEPARTMENT'S CONCLUSION.

IN VIEW OF THE FOREGOING, WE CANNOT CONCLUDE THAT THE DEPARTMENT UNREASONABLY DETERMINED THAT YOUR PROPOSAL WAS UNACCEPTABLE, OR THAT IT COULD NOT HAVE BEEN MADE ACCEPTABLE, CONSIDERING THE ABOVE DEFECTS, WITHOUT SUBSTANTIALLY CHANGING YOUR OFFER.

CONCERNING YOUR STATEMENT THAT YOU HAVE PREVIOUSLY DELIVERED THIS TYPE OF EQUIPMENT TO THE GOVERNMENT, THE RFTP CLEARLY REQUIRED EACH OFFEROR TO FURNISH A COMPLETE PROPOSAL, TO DEMONSTRATE BEYOND A DOUBT HIS UNDERSTANDING OF THE WORK TO BE ACCOMPLISHED, AND WITH SUFFICIENT DETAIL TO PERMIT A THOROUGH TECHNICAL ANALYSIS. IN VIEW THEREOF, WE DO NOT BELIEVE YOU WERE ENTITLED TO CONSIDER YOUR PREVIOUS EXPERIENCE AS A SUBSTITUTE FOR GIVING COMPLETE INFORMATION AS TO HOW YOU WOULD MEET THE REQUIREMENTS FOR THE INSTANT PROCUREMENT. YOU ALSO STATE THAT YOU WERE GIVEN INSUFFICIENT TIME TO SUBMIT WRITTEN INFORMATION AFTER THE DEBRIEFING TO SHOW THAT YOUR PROPOSAL SHOULD NOT BE CONSIDERED UNACCEPTABLE. IN THIS CONNECTION, WE HAVE STATED THAT AN UNSUCCESSFUL BIDDER DOES NOT HAVE A STATUTORY OR REGULATORY RIGHT TO BE DEBRIEFED IN THE FORMAL SENSE AT ANY TIME. B-165457, SUPRA. ALL THAT IS REQUIRED BY ASPR 2-503.1(F) IS THAT AN UNSUCCESSFUL OFFEROR BE PROMPTLY NOTIFIED OF THE DETERMINATION REACHED IN THE FIRST STEP, AND OF THE BASIS FOR THE DETERMINATION. MOREOVER, IN OUR VIEW AN INITIAL FINDING OF THE UNACCEPTABILITY OF A PROPOSAL UNDER THE FIRST STEP MAKES IT UNNECESSARY FOR THE PROCURING AGENCY TO HOLD ANY CONFERENCES WITH THAT OFFEROR LOOKING TO FURTHER PARTICIPATION IN THE SAME PROCUREMENT. SEE ASPR 2 503.1(E).

SINCE THE PROCURING ACTIVITY WAS NOT REQUIRED TO AFFORD YOUR CONCERN A DEBRIEFING, OR THE OPPORTUNITY TO REVISE YOUR UNACCEPTABLE PROPOSAL, WE SEE NO LEGAL BASIS FOR QUESTIONING THE TIME PERIOD ALLOWED YOUR CONCERN FOR SUBMITTING WRITTEN CLARIFICATION OF YOUR OFFER.

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