B-178489, FEB 21, 1974

B-178489: Feb 21, 1974

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THE DETERMINATION THAT PROTESTOR IS NOT WITHIN COMPETITIVE RANGE UNDER THIS STANDARD IS A MATTER OF ADMINISTRATIVE DISCRETION NOT TO BE DISTURBED IN THE ABSENCE OF SHOWING AN ARBITRARY ABUSE OF DISCRETION. WAS ISSUED BY THE DEPARTMENT OF TRANSPORTATION (DOT). THE RFP SOLICITED PROPOSALS FOR AN EXPERIMENTAL PILOT WARNING INSTRUMENT (PWI) WHICH WAS DEFINED AS "AN AIRBORNE DEVICE WHOSE FUNCTION IS TO ALERT PILOTS TO THE PRESENCE OF POTENTIALLY DANGEROUS AIRCRAFT AND TO PROVIDE TO THE PILOT SUFFICIENT INFORMATION TO VISUALLY DETECT THE THREATENING AIRCRAFT.". PROPOSALS WERE PERMITTED WITHIN ANY ONE OF FOUR PERFORMANCE LEVELS LISTED. THE RFP NOTED THAT MULTIPLE CONTRACTS WERE CONTEMPLATED. " ALSO INFORMED BIDDERS UNDER SECTION 2.0 THAT: "THE OBJECTIVE OF THIS PROCUREMENT IS TO PROCURE EXPERIMENTAL HARDWARE EQUIPMENTS) APPLICABLE TO PWI FOR FLIGHT TEST AND EVALUATION BY THE GOVERNMENT.

B-178489, FEB 21, 1974

INASMUCH AS REQUEST FOR PROPOSALS FOR EXPERIMENTAL WARNING INSTRUMENT DEFINED "SIGNIFICANT IMPROVEMENT IN PERFORMANCE" AS MEETING SPECIFIED REQUIREMENT LEVELS, WHEN SUPPORTED BY TECHNICAL EVALUATION, THE DETERMINATION THAT PROTESTOR IS NOT WITHIN COMPETITIVE RANGE UNDER THIS STANDARD IS A MATTER OF ADMINISTRATIVE DISCRETION NOT TO BE DISTURBED IN THE ABSENCE OF SHOWING AN ARBITRARY ABUSE OF DISCRETION.

TO CYGNED, INC.:

ON OCTOBER 10, 1972, REQUEST FOR PROPOSALS (RFP) TSC/TE-0007-ES, AS AMENDED, WAS ISSUED BY THE DEPARTMENT OF TRANSPORTATION (DOT), TRANSPORTATION SYSTEMS CENTER (TSC), CAMBRIDGE, MASSACHUSETTS. THE RFP SOLICITED PROPOSALS FOR AN EXPERIMENTAL PILOT WARNING INSTRUMENT (PWI) WHICH WAS DEFINED AS "AN AIRBORNE DEVICE WHOSE FUNCTION IS TO ALERT PILOTS TO THE PRESENCE OF POTENTIALLY DANGEROUS AIRCRAFT AND TO PROVIDE TO THE PILOT SUFFICIENT INFORMATION TO VISUALLY DETECT THE THREATENING AIRCRAFT." PROPOSALS WERE PERMITTED WITHIN ANY ONE OF FOUR PERFORMANCE LEVELS LISTED, AND THE RFP NOTED THAT MULTIPLE CONTRACTS WERE CONTEMPLATED. EXHIBIT "A," ENTITLED "PWI EXPERIMENTAL HARDWARE PROCUREMENT WORK STATEMENT," ALSO INFORMED BIDDERS UNDER SECTION 2.0 THAT:

"THE OBJECTIVE OF THIS PROCUREMENT IS TO PROCURE EXPERIMENTAL HARDWARE EQUIPMENTS) APPLICABLE TO PWI FOR FLIGHT TEST AND EVALUATION BY THE GOVERNMENT. THE TERM 'EXPERIMENTAL EQUIPMENT' AS USED IN THIS PROCUREMENT SHALL DENOTE THOSE PORTIONS OF A PWI SYSTEM EXCLUDING THE COCKPIT DISPLAY NECESSARY TO EVALUATE SYSTEM PERFORMANCE. THIS PROCUREMENT IS INTENDED TO PROVIDE A BASIS FOR COLLECTING THE NECESSARY TECHNICAL DATA NEEDED FOR THE ESTABLISHMENT OF A PWI NATIONAL STANDARD AND IS NOT TO BE CONSTRUED AS THE BEGINNING OF A COMPETITION FOR EVENTUAL PRODUCTION OF OPERATIONAL PWI SYSTEMS.

"SPECIFICALLY, THE GOVERNMENT IS INTERESTED IN OBTAINING EXPERIMENTAL HARDWARE WHOSE RANGE OF PERFORMANCE CHARACTERISTICS ARE DESCRIBED IN TABLE 2.1. ADDITIONALLY, THE GOVERNMENT DESIRES THAT THE EQUIPMENT OPERATE WITHIN THE FREQUENCY BANDS LISTED IN TABLE 2.2. OPERATION WITHIN THESE FREQUENCY BANDS IS NOT MANDATORY PROVIDED THE PROPOSAL PRESENTS OVERRIDING ADVANTAGES FOR USING OTHER FREQUENCIES.

"*** PROPOSALS RELATED TO PREVIOUSLY TESTED CONCEPTS SHOULD BE SUBMITTED ONLY IF THEY OFFER SIGNIFICANT IMPROVEMENTS IN PERFORMANCE."

WITH RESPECT TO THE LATTER REQUIREMENT, AMENDMENT NO. 1 (WHICH INCORPORATED QUESTIONS AND ANSWERS OF THE PREPOSAL CONFERENCE) STATED THAT "SIGNIFICANT IMPROVEMENT" WAS "PERFORMANCE IN ACCORDANCE WITH THE REQUIREMENTS OF ONE OF THE LEVELS LISTED IN TABLE 2.1."

CYGNED, INC. (CYGNED), PROTESTED THE ELIMINATION OF ITS PROPOSAL FROM FURTHER CONSIDERATION UNDER THIS PROCUREMENT; HOWEVER, FOR THE REASONS THAT FOLLOW, THE PROTEST MUST BE DENIED. CYGNED PROPOSED A SELF CONTAINED SYSTEM FOR CONSIDERATION UNDER PERFORMANCE LEVELS I AND II. IN ACCORDANCE WITH THE SOLICITATION'S PROVISIONS, THE PROPOSAL WAS SUBMITTED TO A SOURCE EVALUATION BOARD (SEB) FOR ASSESSMENT OF THE TECHNICAL ASPECTS OF THE SYSTEM. THE EVALUATION CRITERIA EMPLOYED BY THE SEB LISTED AND DEFINED IN THE RFP WERE WEIGHTED AS FOLLOWS: BASIC CONSIDERATIONS - 15 PERCENT; SPECIFIC DESCRIPTION AND DISCUSSION - 40 PERCENT; SYSTEMS ANALYSIS - 25 PERCENT; COMPANY BACKGROUND - 10 PERCENT; AND SCHEDULE, MANAGEMENT, AND FACILITIES - 10 PERCENT.

UNDER LEVEL I, CYGNED'S PROPOSAL (INCLUDING THE COST FACTOR) WAS GIVEN A FINAL TECHNICAL EVALUATION SCORE OF .78 OUT OF A POSSIBLE 1.00, WHICH RESULTED IN ITS BEING RANKED FOURTH OF THE FIVE PROPOSALS EVALUATED. WAS THIRD AMONG THE FOUR PROPOSALS EVALUATED UNDER LEVEL II. THEREFORE, AT A MEETING ON MARCH 6, 1973, CYGNED WAS REQUESTED TO PROVIDE CLARIFICATION OF SOME AREAS OF ITS PROPOSAL INCLUDING SUPPORT THAT IT REPRESENTED A SIGNIFICANT IMPROVEMENT OVER THEIR CURRENT UNIT WHICH HAD BEEN SUBMITTED UNDER AN EARLIER CONTRACT. SUBSEQUENTLY, BY LETTER DATED APRIL 19, 1973, CYGNED WAS INFORMED THAT ITS PROPOSAL WAS FOUND TO BE OUTSIDE THE COMPETITIVE RANGE AND WAS, ACCORDINGLY, ELIMINATED FROM FURTHER CONSIDERATION. NEVERTHELESS, THE NOTICE STATED THAT UPON REQUEST, A DEBRIEFING WOULD BE HELD AFTER AWARD OF THE PROCUREMENT.

CYGNED CONTENDS THAT ITS PROPOSAL DID REPRESENT A SIGNIFICANT IMPROVEMENT OVER SIMILAR EQUIPMENT AND THAT THE EVALUATION METHODS AND CRITERIA WERE NOT APPLIED EQUALLY TO DETERMINE WHAT REPRESENTED SIGNIFICANT IMPROVEMENT FOR OTHER POTENTIAL CONTRACTORS SUBMITTING PROPOSALS BASED ON PREVIOUSLY TESTED SYSTEMS. MOREOVER, UNDER ITS METHOD OF ANALYSIS, CYGNED MAINTAINS THAT ITS PROPOSED SYSTEM MET THE REQUIREMENTS OF THE RFP.

DOT STATES THAT CYGNED'S PROPOSAL WAS ELIMINATED FROM FURTHER CONSIDERATION PRIMARILY BECAUSE IT DID NOT OFFER "SIGNIFICANT IMPROVEMENT IN PERFORMANCE" WITH RESPECT TO THE AREAS OF GROUND CLUTTER AND RANGE. REGARDING GROUND CLUTTER, IT DETERMINED THAT A CONTINUOUS ALARM WOULD BE GENERATED FROM SIGNALS OFF THE GROUND WHEN AN AIRCRAFT USED CYGNED'S SYSTEM WHILE FLYING AT LOWER ALTITUDES. THIS WAS NOT IN ACCORDANCE WITH THE PERFORMANCE REQUIREMENTS OF ONE OF THE LEVELS LISTED ON TABLE 2.1 OF THE RFP, SINCE THE PROBLEM CREATED BY GROUND CLUTTER WOULD RESULT IN THE DEVICE NOT MEETING THE MEAN FALSE ALARM INTERVAL OF 30 OR 10 MINUTES AT AN ALTITUDE BELOW 690 FEET. SIGNIFICANTLY, DOT NOTED, AND CYGNED ACKNOWLEDGED, THAT IT DID NOT HAVE A DEFINITE SOLUTION TO THIS PROBLEM BUT INTENDED TO SOLVE IT DURING THE PERFORMANCE OF THE CONTRACT.

THE TECHNICAL ANALYSIS ALSO RAISED CONSIDERABLE DOUBT THAT THE PROPOSAL COULD MEET THE RFP'S RANGE REQUIREMENT FOR DETECTION AT ONE NAUTICAL MILE (6,076 FEET). THE ANALYSIS INDICATED THAT CYGNED'S PROPOSED APPROACH HAD A DETECTION RANGE OF LESS THAN 5,000 FEET.

WITH RESPECT TO THE TECHNICAL EVALUATION OF CYGNED'S PROPOSAL, IT IS APPARENT FROM A REVIEW OF THE RECORD THAT CYGNED'S PROPOSAL WAS EVALUATED IN A MANNER CONSISTENT WITH THE EVALUATION OF THE PROPOSALS OF THE OTHER OFFERORS. THE EXTENT OF ANY INEQUALITY IN TREATMENT OF THE PROPOSAL STEMS FROM CYGNED'S APPROACH TO THE SYSTEM AND NOT THE APPLICATION OF THE EVALUATION METHODS AND CRITERIA. WHILE THE TECHNICAL APPROACHES MAY HAVE DIFFERED, THE STANDARD FOR DETERMINING "SIGNIFICANT IMPROVEMENT" WAS CLARIFIED BY THE AMENDMENT TO THE RFP. THUS WHEN CONTRASTED WITH THE MOST FAVORABLE PROPOSAL, CYGNED'S TECHNICAL APPROACH WAS CONSIDERED TO BE INFERIOR IN LIGHT OF THE DIFFICULTY IN SOLVING THE MUTUALLY ACKNOWLEDGED PROBLEMS IN BRINGING ITS OPERATION WITHIN THE PERFORMANCE LEVELS SPECIFIED BY THE SOLICITATION.

IN LIGHT OF THE FOREGOING, WE DO NOT CONSIDER THAT THERE HAS BEEN PRESENTED A CLEAR SHOWING THAT THE AGENCY'S ULTIMATE ACTION IN REJECTING CYGNED'S PROPOSAL WAS WITHOUT FOUNDATION. WE HAVE CONSISTENTLY RECOGNIZED THAT A REASONABLE DEGREE OF ADMINISTRATIVE DISCRETION IS PERMISSIBLE IN EVALUATING TECHNICAL PROPOSALS AND IN DETERMINING WHETHER A PROPOSAL IS WITHIN THE COMPETITIVE RANGE, AND SUCH DETERMINATION WILL NOT BE DISTURBED IN THE ABSENCE OF A CLEAR SHOWING THAT THERE HAS BEEN AN ARBITRARY ABUSE OF DISCRETION. SEE 53 COMP. GEN. 1 (B-177637, JULY 5, 1973).

ACCORDINGLY, THE PROTEST IS DENIED.