B-175786, JUL 12, 1972

B-175786, JUL 12, 1972

BID PROTEST - NONRESPONSIVENESS CONCERNING THE PROTEST OF COMPUTER MACHINERY CORPORATION (CMC) AGAINST THE PROPOSED AWARD OF A CONTRACT TO MOHAWK DATA SCIENCES CORPORATION UNDER AN IFB ISSUED BY THE FEDERAL COMMUNICATIONS COMMISSION. GAO HAS NO BASIS FOR QUESTIONING THE AGENCY'S DECISION TO REJECT THE CMC BID AS NONRESPONSIVE TO THE CATHODE RAY TUBE AVAILABILITY REQUIREMENT. HOWEVER, IN VIEW OF THE AMENDMENT PROVIDING THAT ALTERNATE PROPOSALS MUST MEET THE MANDATORY SPECIFICATIONS OF THE IFB, THE ACCEPTANCE OF MOHAWK'S BID CONSTITUTES A WAIVER OF THE MANDATORY CONCURRENCY REQUIREMENTS OF THE REMOTE DATA STATION CAPABILITY SECTION OF THE SPECIFICATIONS. SINCE SUCH WAIVER IS IMPROPER WHERE, AS HERE, IT IS PREJUDICIAL TO OTHER BIDDERS, IT IS THE OPINION OF THE COMP. GEN. THAT THE BIDS OF BOTH CMC AND MOHAWK MUST BE CONSIDERED NONRESPONSIVE.

TO MR. DEAN BURCH:

REFERENCE IS MADE TO YOUR LETTER 2800, WITH ENCLOSURES, DATED MAY 12, 1972, REPORTING ON THE PROTEST OF THE COMPUTER MACHINERY CORPORATION (CMC) AGAINST THE PROPOSED AWARD OF A CONTRACT TO THE MOHAWK DATA SCIENCES CORPORATION (MOHAWK) UNDER INVITATION FOR BIDS (IFB) NO. 72-68 DATED JANUARY 7, 1972.

THE CONTRACTING OFFICER PROPOSES TO REJECT THE LOW BID OF CMC AS NONRESPONSIVE AND TO MAKE AN AWARD UNDER THE IFB TO THE SECOND LOW BIDDER, MOHAWK. WHILE WE AGREE THAT THE LOW BID OF CMC SHOULD BE REJECTED AS NONRESPONSIVE, WE HAVE CONCLUDED, AS ALLEGED BY CMC, THAT THE SECOND LOW BID OF MOHAWK IS ALSO NONRESPONSIVE TO THE ADVERTISED SPECIFICATIONS. MOREOVER, WE UNDERSTAND FROM THE CONTRACTING OFFICER AND THE CHIEF OF THE DATA PROCESSING DIVISION THAT, IF WE FIND THE MOHAWK BID NONRESPONSIVE, ON THE BASIS ALLEGED BY CMC, THEN THE REMAINING FOUR BIDS RECEIVED ARE ALSO NONRESPONSIVE.

THE IFB REQUESTED BIDS FOR THE RENTAL, WITH AN OPTION TO PURCHASE, OF A KEY-TO-DISC COMPUTER SYSTEM IN ACCORDANCE WITH A DESIGNATED SPECIFICATION. ALL BIDDERS WERE REQUIRED TO SUBMIT PROPOSALS TO BE SUBJECTED TO A TECHNICAL EVALUATION IN THE FOLLOWING FOUR AREAS: (1) CAPABILITY OF THE HARDWARE CONFIGURATION AND SUPPORTING SOFTWARE TO MEET SYSTEM SPECIFICATIONS; (2) HARDWARE AND SOFTWARE PROPOSED TO BE IN A DEMONSTRABLE OPERATING STATE BY THE DATE THE PROPOSAL IS SUBMITTED; (3) DELIVERY NO LATER THAN 60 DAYS AFTER EXECUTION OF THE CONTRACT; AND (4) SUCCESSFUL OPERATION OF THE BENCHMARK LIST DISTRIBUTED AT THE BIDDERS CONFERENCE. THE SPECIFICATION CONTAINED THE FOLLOWING LANGUAGE:

"THE FOLLOWING SPECIFICATIONS DEFINE, IN DETAIL, THOSE FEATURES DEEMED MANDATORY TO THE PROPOSED SYSTEM. HOWEVER, IF THE VENDOR CANNOT SATISFY A PARTICULAR SPECIFICATION, BUT CAN SUPPLY AN ALTERNATE METHOD OF SATISFYING THE REQUIREMENTS OF THE SPECIFICATION, THE ALTERNATE METHOD SHOULD BE EXPLAINED IN DETAIL.

1. KEYSTATIONS

CATHODE RAY TUBE AVAILABILITY:

OPERATOR INTERACTION THROUGH ABILITY TO VIEW AT LEAST 80 CHARACTERS OF RECORD BEING ENTERED OR VERIFIED, WITH BACKSPACE/STRIKEOVER CAPABILITY TO PERMIT EASY CORRECTION OF ERRORS. SIZE, COLOR AND TOPOGRAPHY OF GRAPHICS FOR MAXIMUM LEGIBILITY. CHARACTER POSITION COUNTER; MOVING CURSOR TO INDICATE CHARACTER POSITION.

REMOTE DATA STATION CAPABILITY

TWO WAY DATA COMMUNICATIONS TERMINALS OPERATING ON GOVERNMENT FTS LINES BETWEEN WASHINGTON, D.C. AND GETTYSBURG, PA. TRANSMISSION FROM A MAGNETIC TAPE TO A REMOTE MAGNETIC TAPE. PROGRAM CONTROLLED TRANSMISSION TO PERMIT PROGRAMS STORED IN SENDING AND RECEIVING TERMINALS TO REGULATE DATA FORMAT DURING TRANSMISSION.

ERROR CONTROL PROCEDURES TO MINIMIZE TRANSMISSION ERRORS AND ENSURE RELIABLE DATA TRANSFER FROM ONE TERMINAL TO ANOTHER.

CAPABILITY TO PROVIDE FOR OFF LINE COMMUNICATIONS OF DATA PREPARED BY SYSTEM, LEAVING TOTAL SYSTEM FREE TO ENGAGE IN OTHER JOBS DURING TRANSMISSION OR RECEIVING."

IN AN ATTEMPT TO PRECLUDE THE SUBMISSION OF ALTERNATE BIDS, WHICH ARE PROHIBITED BY PARAGRAPH 2(D) OF THE IFB INSTRUCTIONS, THE CONTRACTING OFFICER ISSUED THE FOLLOWING AMENDMENT:

"REFERENCE PAGE 175 OF SYSTEM SPECIFICATIONS FOR KEY-TO-DISC WHERE IT IS STATED, 'IF THE VENDOR CANNOT SATISFY A PARTICULAR SPECIFICATION, BUT CAN SUPPLY AN ALTERNATE METHOD OF SATISFYING THE REQUIREMENTS OF THE SPECIFICATION, THE ALTERNATE METHOD SHOULD BE EXPLAINED IN DETAIL.' CLARIFICATION OF THIS PARAGRAPH IS OFFERED BY THE FOLLOWING: THE GOVERNMENT WILL ACCEPT ALTERNATE MODES PROVIDING THE ALTERNATE MODES MEET MINIMUM SPECIFICATIONS. EACH ALTERNATE MODE MUST BE PRICED OUT IN ACCORDANCE WITH SECTION 4. THIS IS NECESSARY TO REMOVE THE IMPRESSION THAT REFERENCED PARAGRAPH AUTHORIZES ALTERNATE BIDS AS OPPOSED TO ALTERNATE METHODS."

THE CONTRACTING OFFICER REJECTED THE LOW BID OF CMC AS NONRESPONSIVE, IN PART, DUE TO THE ABSENCE OF CATHODE RAY TUBE AVAILABILITY FOR DATA DISPLAY AS REQUIRED BY THE ABOVE-QUOTED SPECIFICATION LANGUAGE. THE RECORD REVEALS THAT CMC OFFERED A SYSTEM UTILIZING AN ALTERNATIVE NONCATHODE RAY TUBE FEATURE FOR DATA DISPLAY. DURING THE COURSE OF BENCHMARK TESTING, THE DATA PROCESSING DIVISION CONCLUDED THAT THE ALTERNATE SOLUTION TENDERED BY CMC WAS NOT ACCEPTABLE IN TERMS OF HUMAN ENGINEERING FACTORS SUCH AS EASE IN TRAINING OPERATORS, OVERALL EDITING OF INPUT DATA AND ULTIMATE THROUGHPUT IN PRODUCTION. IN THIS REGARD, WE HAVE ATTACHED SIGNIFICANCE TO A CONTRACTING AGENCY'S RELIANCE ON OPERATIONAL AND HUMAN ENGINEERING FACTORS INVOLVED IN THE NOMINATION OF PARTICULAR REQUIREMENTS IN SPECIFICATIONS. SEE B-174140, B-174205, MAY 16, 1972. FURTHERMORE, NO EVIDENCE HAS BEEN PRESENTED TO GIVE US A BASIS UPON WHICH TO QUESTION THE TECHNICAL JUDGMENT OF YOUR DATA PROCESSING DIVISION PERSONNEL AS TO THE ACCEPTABILITY OF THE NONCATHODE RAY TUBE METHOD OF DISPLAY PROPOSED BY CMC.

SINCE WE CONCLUDE THAT THE CMC BID IS NONRESPONSIVE AS TO THE CATHODE RAY TUBE AVAILABILITY REQUIREMENT, WE DO NOT BELIEVE THAT IT IS NECESSARY TO CONSIDER THE OTHER BASIS UPON WHICH THE CONTRACTING OFFICER REJECTED THE BID.

CMC ALLEGES THAT YOUR PROCUREMENT AND DATA PROCESSING PERSONNEL GRANTED A WAIVER TO MOHAWK OF THE ABOVE-QUOTED MANDATORY SPECIFICATION REQUIREMENT CONCERNING REMOTE DATA STATION CAPABILITY. IT IS ALLEGED THAT THIS SPECIFICATION REQUIRES THAT DATA ENTRY AND DATA COMMUNICATIONS OCCUR CONCURRENTLY, RATHER THAN SERIALLY. MOHAWK PROPOSED AND YOUR DATA PROCESSING PERSONNEL ACCEPTED AN ALTERNATE METHOD TO COMPLY WITH THAT SPECIFICATION REQUIREMENT BY THE TRANSMITTAL OF THE DATA AFTER WORKING HOURS TO A SPECIFIED LOCATION ON THE COMMUNICATIONS NETWORK. IN ADDITION, IT IS POINTED OUT THAT MOHAWK IS IN THE PROCESS OF DEVELOPING SOFTWARE PACKAGES TO ACCOMPLISH AT A LATER DATE CONCURRENT DATA ENTRY AND COMMUNICATIONS AT NO COST.

WE CAN UNDERSTAND THAT, IN ORDER TO NOT RESTRICT COMPETITION, AN AGENCY CAN INVITE ALTERNATE METHODS OR SOLUTIONS, EVEN WHERE PARTICULAR PERFORMANCE REQUIREMENTS ARE SET FORTH. BUT, THE INVITATION AS ISSUED PROVIDED FOR THE PROPOSAL OF ALTERNATES AND, AT THE SAME TIME, SPECIFICALLY RETAINED THE INTEGRITY OF THE STATED MANDATORY SPECIFICATIONS. THE UNDERLINED LANGUAGE ABOVE LENDS SUPPORT TO THIS POSITION AS DOES THE FOLLOWING EXCERPT FROM THE CONTEMPORANEOUS MEMORANDUM OF THE CONTRACTING OFFICER EXPLAINING THE RATIONALE BEHIND THE AMENDMENT TO THE IFB:

"HOWEVER, IT IS NOT THE GOVERNMENT'S INTENT TO SOLICIT ALTERNATE BIDS. THIS POINT WAS A MATTER OF DISCUSSION IN THE PREBID MEETING WITH THOSE VENDORS ATTENDING. IT WAS POINTED OUT BY THE ADP CHIEF THAT THE GOVERNMENT ENCOURAGES INNOVATION AND INGENUITY IN INDUSTRY AND REALIZES THE STATE OF FLUX THE COMPUTER INDUSTRY IS IN, IS SUCH THAT THIS KNOWLEDGE MAY GENERATE OTHER METHODS FOR ACCOMPLISHING THE OBJECTIVES OF THE SYSTEM SPECIFICATION PROVIDING THEY MEET THE MINIMUM SPECIFICATION REQUIRED BY THE BID. ALTERNATE BIDS ARE NOT ASKED FOR BY THIS SOLICITATION.

"IT WAS REITERATED BY THE PROCUREMENT AGENT ADMINISTERING THIS REQUIREMENT THAT FAILURE TO MEET THE REQUIREMENTS OF THE BID WOULD BE CONSIDERED NONRESPONSIVE, TO WHICH I CONCUR."

WE HAVE CONSIDERED THE POSITION OF YOUR CONTRACTING AND DATA PROCESSING PERSONNEL AND MOHAWK THAT THE ABOVE-QUOTED IFB PROVISION DOES NOT REQUIRE CONCURRENCY BUT WE DO NOT AGREE. THE DOCUMENTATION SUBMITTED WITH YOUR REPORT CLEARLY INDICATES THAT THE MANDATORY CONCURRENCY REQUIREMENTS OF THE REMOTE DATA STATION CAPABILITY SECTION OF THE SPECIFICATIONS WERE EFFECTIVELY WAIVED BY THE ACCEPTANCE OF THE MOHAWK ALTERNATE. MOREOVER, NOTHING HAS BEEN BROUGHT TO OUR ATTENTION WHICH WOULD DILUTE THE MATERIALITY OF THE REQUIREMENT FOR CONCURRENCY IN THE SPECIFICATION. THIS REGARD, THE ABOVE-QUOTED SPECIFICATION LISTED THE REMOTE DATA STATION CAPABILITY AS ONE OF THE FEATURES DEEMED MANDATORY TO THE PROPOSED SYSTEM. SUCH A SPECIFICATION REQUIREMENT CANNOT BE WAIVED WHERE TO DO SO WOULD BE PREJUDICIAL TO OTHER BIDDERS. CONTRACTING AGENCIES MUST REGARD AS NONRESPONSIVE A BID DEVIATING FROM THE ADVERTISED SPECIFICATIONS IN A MATERIAL RESPECT.

IN VIEW OF THE AFORE GOING, WE FIND THAT THE BIDS OF CMC AND MOHAWK ARE NONRESPONSIVE TO THE TERMS OF THE IFB. SEE B-174391, APRIL 5, 1972; B- 173555, MARCH 7, 1972.