B-176634(1), FEB 6, 1973

B-176634(1): Feb 6, 1973

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WILL NOT BE DISTURBED ABSENT A SHOWING OF ARBITRARINESS. 49 COMP. THE PROTEST IS DENIED. SIMMONS & TURTLE: REFERENCE IS MADE TO THE JULY 25. THE SOLICITATION WAS FOR THE PROCUREMENT OF VOICE DATA MULTIPLEX (VDM) EQUIPMENT TO BE INSTALLED IN VARIOUS RADAR SITES AND AIR ROUTE TRAFFIC CONTROL CENTERS THROUGHOUT THE COUNTRY. THAT THE REQUIREMENTS WOULD HAVE TO BE MET WITHOUT ROUTINE MAINTENANCE ON THE EQUIPMENT. IT TOOK THE POSITION THAT THE MTBF REQUIREMENTS WERE COMMERCIALLY IMPRACTICABLE. AWARD WAS MADE TO THAT FIRM ON JULY 21. 000 HOURS CANNOT BE MET BY "ANY KNOWN TECHNIQUES EXCEPT AT PROHIBITIVE COSTS" IF CUSTOMARY MAINTENANCE IS NOT PERFORMED. YOU FURTHER CLAIM THAT FAA'S INSISTENCE THAT SUCH MAINTENANCE NOT BE PERFORMED IN THE DEMONSTRATION TEST REQUIRED BY THE SOLICITATION IS MEANINGLESS BECAUSE "CUSTOMARY MAINTENANCE WILL BE PROVIDED TO UNITS THAT ARE PUT INTO USE.".

B-176634(1), FEB 6, 1973

BID PROTEST - NONRESPONSIVE BID - NEGOTIATED PROCUREMENT DECISION CONCERNING THE DENIAL OF PROTEST ON BEHALF OF COLLINS RADIO CO. AGAINST THE AWARD OF A CONTRACT TO GTE LENKURT, INC., UNDER AN RFP ISSUED BY THE FEDERAL AVIATION ADMINISTRATION. COLLINS' OFFER OF AN ALTERNATE PROPOSAL WHICH DID NOT MEET THE FAA'S NEEDS AS SPECIFIED IN THE RFP NECESSITATES THE REJECTION OF THE BID AS NONRESPONSIVE. THE DRAFTING OF SPECIFICATIONS TO MEET THE GOVERNMENT'S NEEDS RESTS IN THE DISCRETION OF THE PROCURING AGENCY, AND WILL NOT BE DISTURBED ABSENT A SHOWING OF ARBITRARINESS. 49 COMP. GEN. 156 (1969). ALSO, NOTWITHSTANDING FPR 1-3.101, WHICH PROVIDES THAT IN A NEGOTIATED PROCUREMENT AWARD SHALL BE MADE IN THE BEST INTEREST OF THE GOVERNMENT, PRICE AND OTHER FACTORS INCLUDED, A CONTRACT MAY BE AWARDED TO ONE OFFEROR AS OPPOSED TO ANOTHER LESS QUALIFIED OFFEROR SUBMITTING A LOWER PRICE. ACCORDINGLY, THE PROTEST IS DENIED.

TO VOM BAUR, COBURN, SIMMONS & TURTLE:

REFERENCE IS MADE TO THE JULY 25, 1972, LETTER FROM COLLINS RADIO COMPANY, AND TO YOUR SUBSEQUENT CORRESPONDENCE ON ITS BEHALF, PROTESTING AGAINST AWARD OF A CONTRACT TO GTE LENKURT, INCORPORATED, BY THE FEDERAL AVIATION ADMINISTRATION (FAA) UNDER REQUEST FOR PROPOSALS (RFP) WA5M-1- 7312.

THE SOLICITATION WAS FOR THE PROCUREMENT OF VOICE DATA MULTIPLEX (VDM) EQUIPMENT TO BE INSTALLED IN VARIOUS RADAR SITES AND AIR ROUTE TRAFFIC CONTROL CENTERS THROUGHOUT THE COUNTRY. THE SPECIFICATIONS INCLUDED RELIABILITY/MAINTAINABILITY REQUIREMENTS THAT CALLED FOR A MEAN TIME BETWEEN FAILURES (MTBF) OF 20,000 HOURS OR GREATER FOR A GIVEN DUPLEX VOICE MULTIPLEX CHANNEL END AND A MTBF OF 26,000 HOURS OR GREATER FOR ANY FAILURE AFFECTING MORE THAN ONE DUPLEX VOICE MULTIPLEX CHANNEL END. COLLINS INITIALLY PROPOSED TO MEET THESE REQUIREMENTS. HOWEVER, WHEN COLLINS LEARNED, DURING NEGOTIATIONS, THAT THE REQUIREMENTS WOULD HAVE TO BE MET WITHOUT ROUTINE MAINTENANCE ON THE EQUIPMENT, IT TOOK THE POSITION THAT THE MTBF REQUIREMENTS WERE COMMERCIALLY IMPRACTICABLE, AND OFFERED MTBFS OF 14,000 HOURS AND 10,000 HOURS, RESPECTIVELY, IN LIEU OF THE STATED REQUIREMENTS. IT ALSO SUBMITTED AN ALTERNATE PROPOSAL WITH MTBFS OF 10,000 AND 7,000 HOURS, RESPECTIVELY. GTE'S PROPOSAL FULLY COMPLIED WITH THE MTBF PROVISIONS, AND AWARD WAS MADE TO THAT FIRM ON JULY 21, 1972.

YOU PROTEST THE AWARD TO GTE IN THE AMOUNT OF $7,858,000, SINCE COLLINS QUOTED PRICES OF $7,401,529 FOR ITS BASIC PROPOSAL, AND $7,150,142 FOR ITS ALTERNATE PROPOSAL, AND "OFFERED SUBSTANTIALLY ALL THAT THE GOVERNMENT COULD EXPECT FROM ANY OFFEROR ***." YOU CLAIM THAT A MTBF OF 20,000 HOURS OR 26,000 HOURS CANNOT BE MET BY "ANY KNOWN TECHNIQUES EXCEPT AT PROHIBITIVE COSTS" IF CUSTOMARY MAINTENANCE IS NOT PERFORMED. YOU FURTHER CLAIM THAT FAA'S INSISTENCE THAT SUCH MAINTENANCE NOT BE PERFORMED IN THE DEMONSTRATION TEST REQUIRED BY THE SOLICITATION IS MEANINGLESS BECAUSE "CUSTOMARY MAINTENANCE WILL BE PROVIDED TO UNITS THAT ARE PUT INTO USE." YOU ALSO STATE THAT FAA SHOULD HAVE MADE A CAREFUL ANALYSIS OF THE POTENTIAL INCREASED COSTS TO THE GOVERNMENT LIKELY TO BE INCURRED BY REASON OF MORE FREQUENT REPAIRS TO THE COLLINS SYSTEM TO DETERMINE IF IT WAS IN THE BEST INTERESTS OF THE GOVERNMENT TO PAY ALMOST $500,000 TO OBTAIN THE INCREASED HOURS OF MTBF PROMISED BY GTE.

THE SPECIFICATIONS REQUIRED, AS A KEY FEATURE OF THE VDM SYSTEM, CERTAIN DUPLICATE EQUIPMENT SO THAT IN THE EVENT OF A MALFUNCTION OR OTHER FAILURE OF AN INDIVIDUAL PART THE ENTIRE SYSTEM WOULD NOT BE AFFECTED. PARAGRAPH 3.7.7.3 STATED THAT:

"ALL FREQUENCY GENERATION EQUIPMENT, COMMON TO MORE THAN ONE CHANNEL, SHALL BE COMPLETELY REDUNDANT. *** ANY FAILURE, OR DEGRADATION BELOW PRE- SET LIMITS, SHALL CAUSE AUTOMATIC SWITCH-OVER TO THE ASSOCIATED REDUNDANT CIRCUITRY/CARD."

PARAGRAPH 3.7.7.5 ALSO PROVIDED FOR AN ALARM SIGNAL IN THE EVENT OF A FAILURE. IT IS YOUR POSITION THAT THE PURPOSE OF THIS REDUNDANT CAPABILITY IS TO ALLOW FOR NEEDED MAINTENANCE AND REPAIRS OF THE MALFUNCTIONING EQUIPMENT, WITHOUT SYSTEM DISRUPTION AND THAT IT IS THE COMBINATION OF EFFECTIVE MAINTENANCE AND REDUNDANT EQUIPMENT THAT PROVIDES THE LENGTHY MTBFS DESIRED. YOU ASSERT THAT FAA'S DECISION TO DISREGARD REPAIRS AND MAINTENANCE IN ACHIEVING MTBFS OF 20,000 AND 26,000 HOURS IS UNREALISTIC IN TERMS OF COST AND MEANINGLESS IN VIEW OF THE MAINTENANCE THAT WILL BE PROVIDED ONCE THE EQUIPMENT IS OPERATIONAL.

FAA, IN ITS ADMINISTRATIVE REPORT POINTS OUT THAT "THE MTBF IS A VERY IMPORTANT FACTOR IN THE OPERATIONAL CAPABILITY AND USE OF THE AUTOMATION SYSTEM." FAA FURTHER STATES THAT IT REVIEWED THE MTBF REQUIREMENTS AND BASED UPON EXPERIENCE IN THE SPACE PROGRAM DETERMINED THAT THEY WERE REALISTIC. FUTHERMORE, IT IS POINTED OUT THAT GTE'S PROPOSAL SHOWED THAT THE MTBF REQUIREMENTS COULD BE MET THROUGH SPECIALLY DESIGNED EQUIPMENT AS OPPOSED TO COMMERCIAL EQUIPMENT PROPOSED BY COLLINS. WHILE FAA HAS INFORMALLY AGREED THAT ANY FAILURE OF OPERATING EQUIPMENT WILL BE REPAIRED AS QUICKLY AS POSSIBLE, IT STILL INSISTS THAT THE LENGTHY MTBF PERIODS WITHOUT ANY MAINTENANCE ARE IMPORTANT REQUIREMENTS TO INDICATE RELIABILITY UNDER OPERATING CONDITIONS. WE ALSO UNDERSTAND THAT WHILE REDUNDANCY IS PROVIDED FOR THE FREQUENCY GENERATION EQUIPMENT, THERE IS NOT COMPLETE REDUNDANCY THROUGHOUT THE ENTIRE VDM SYSTEM.

IT IS WELL ESTABLISHED THAT THE DETERMINATION OF THE GOVERNMENT'S MINIMUM NEEDS AND THE DRAFTING OF SPECIFICATIONS TO REFLECT THOSE NEEDS RESTS IN THE SOUND DISCRETION OF THE ADMINISTRATIVE AGENCY CONCERNED AND IS NOT SUBJECT TO QUESTION BY OUR OFFICE IN THE ABSENCE OF EVIDENCE THAT THE AGENCY HAS ACTED ARBITRARILY. 38 ID. 190 (1958); 49 ID. 156, 160 (1969). SINCE THE DISPUTE CONCERNING THE MTBF REQUIREMENTS IS OF A TECHNICAL NATURE, WE MUST DEFER TO FAA'S DETERMINATION THAT ITS MINIMUM NEEDS IN THIS CRITICALLY IMPORTANT AREA WILL BEST BE SERVED BY A VDM SYSTEM THAT IS CONSIDERED RELATIVELY FREE FROM FREQUENT COMPONENT FAILURES BASED UPON COMPLIANCE WITH THE MTBF HOURS SPECIFIED. WE CANNOT SAY, ON THE BASIS OF THE RECORD BEFORE US, THAT FAA'S NEEDS HAVE BEEN OVERSTATED.

YOU ARGUE THAT AWARD TO COLLINS WAS REQUIRED BECAUSE IT WAS THE LOW OFFEROR AND THAT AWARD CAN ONLY BE MADE TO A HIGHER OFFEROR IF THAT OFFEROR "PROVIDES COMMENSURATELY HIGHER VALUE." FEDERAL PROCUREMENT AWARD SHALL BE MADE IN THE BEST INTERESTS OF THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. WHILE IT IS APPARENT THAT PRICE IS A FACTOR WHICH MAY NOT BE DISREGARDED, WE DO NOT BELIEVE THAT THE REGULATIONS REQUIRE AWARD TO BE MADE TO THE LOWEST PRICED OFFEROR WITHOUT REGARD TO OTHER APPROPRIATE FACTORS. SEE 50 COMP. GEN. 110 (1970). IN THIS CONNECTION, WE HAVE HELD THAT IN A NEGOTIATED PROCUREMENT CONSIDERATION OF THESE "OTHER FACTORS" MAY, IN A PROPER CASE, RESULT IN AN AWARD TO ONE OFFEROR AS OPPOSED TO ANOTHER LESS QUALIFIED OFFEROR SUBMITTING A LOWER PRICE. SEE 50 COMP. GEN. 110, 113 (1970), SUPRA. SINCE COLLINS TOOK SPECIFIC EXCEPTION TO CERTAIN MATERIAL SPECIFICATION REQUIREMENTS AND OFFERED A SYSTEM BASED ON LESS STRINGENT REQUIREMENTS, WHEREAS GTE'S HIGHER PRICED OFFER WAS BASED UPON ADHERENCE TO THE SPECIFIED MTBF REQUIREMENTS, WE ARE AWARE OF NO BASIS FOR OBJECTING TO THE AWARD.

YOUR OTHER ARGUMENTS CONCERN GTE'S POSSIBLE FAILURE TO FURNISH A SYSTEM HAVING THE REQUIRED MTBF. WE NOTE THAT WHILE YOU INSIST THAT COMPLIANCE WITH THE MTBF REQUIREMENTS IS COMMERCIALLY IMPRACTICABLE, FAA HAS DETERMINED THAT SUCH COMPLIANCE IS TECHNICALLY POSSIBLE AND THAT GTE HAS OFFERED AN ACCEPTABLE PROPOSAL TO MEET THE REQUIREMENTS. SINCE THESE DETERMINATIONS WERE BASED UPON TECHNICAL EXPERTISE WHICH OUR OFFICE LACKS, THERE IS NO BASIS FOR US TO SUBSTITUTE OUR JUDGMENT IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE TO THE CONTRARY.

FOR THE FOREGOING REASONS, YOUR PROTEST IS DENIED.