B-178684, MAR 21, 1974, 53 COMP GEN 676

B-178684: Mar 21, 1974

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CONTRACTS - PROTESTS - TIMELINESS - CONTRACT AWARD NOTICE EFFECT WHERE A PROTEST WAS NOT FILED BEFORE RECEIPT BY THE PROTESTER OF NOTIFICATION THAT IT WAS NOT AWARDED A CONTRACT. THE NOTIFICATION IS NOT CONSIDERED AN ADVERSE AGENCY ACTION UNDER SECTION 20.2(A) OF GAO INTERIM BID PROTEST PROCEDURES AND STANDARDS AND THE SECTION MAY NOT SERVE AS A BASIS TO QUESTION THE TIMELINESS OF THE PROTEST. CONTRACTS PROTESTS - TIMELINESS - ADVERSE ACTION BASIS DETERMINATION A PROTEST FILED WITH AN AGENCY WITHIN 5 DAYS OF THE DATE THE BASIS OF THE PROTEST WAS KNOWN WAS TIMELY FILED WITH THE AGENCY AND THE PROTEST TO GAO 3 MONTHS LATER. IS TIMELY UNDER GAO INTERIM BID PROTEST PROCEDURES AND STANDARDS INSOFAR AS IT RELATES TO MATTERS NOT APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS.

B-178684, MAR 21, 1974, 53 COMP GEN 676

CONTRACTS - PROTESTS - TIMELINESS - CONTRACT AWARD NOTICE EFFECT WHERE A PROTEST WAS NOT FILED BEFORE RECEIPT BY THE PROTESTER OF NOTIFICATION THAT IT WAS NOT AWARDED A CONTRACT, THE NOTIFICATION IS NOT CONSIDERED AN ADVERSE AGENCY ACTION UNDER SECTION 20.2(A) OF GAO INTERIM BID PROTEST PROCEDURES AND STANDARDS AND THE SECTION MAY NOT SERVE AS A BASIS TO QUESTION THE TIMELINESS OF THE PROTEST. CONTRACTS PROTESTS - TIMELINESS - ADVERSE ACTION BASIS DETERMINATION A PROTEST FILED WITH AN AGENCY WITHIN 5 DAYS OF THE DATE THE BASIS OF THE PROTEST WAS KNOWN WAS TIMELY FILED WITH THE AGENCY AND THE PROTEST TO GAO 3 MONTHS LATER, BUT WITHIN 5 DAYS OF NOTIFICATION OF THE ADVERSE AGENCY ACTION, IS TIMELY UNDER GAO INTERIM BID PROTEST PROCEDURES AND STANDARDS INSOFAR AS IT RELATES TO MATTERS NOT APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS. CONTRACTS - PROTESTS - TIMELINESS - SOLICITATION IMPROPRIETIES THE ALLEGATION THAT THE REQUEST FOR PROPOSALS AND AIR FORCE REGULATION 70 -3 DISCRIMINATE AGAINST OPERATORS OF ON-BASE CABLE TELEVISION SYSTEMS IS AN UNTIMELY FILED PROTEST UNDER SECTION 20.2 OF GAO INTERIM BID PROTEST PROCEDURES AND STANDARDS BECAUSE PROTESTS AGAINST ALLEGED IMPROPRIETIES THAT ARE APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS MUST BE FILED PRIOR TO THE CLOSING DATE FOR THE RECEIPT OF PROPOSALS. CONTRACTS - NEGOTIATION - EVALUATION - PROPRIETY OF EVALUATION CONSIDERATION OF RECONNECTION AND RELOCATION FEES IN THE EVALUATION OF PROPOSALS FOR FURNISHING ON-BASE CATV SERVICES IS PROHIBITED WHERE THE AIR FORCE REGULATION 70-3 SPECIFICALLY EXCLUDES THEM AS EVALUATION FACTORS AND, FURTHERMORE, NO CORRELATION EXISTS BETWEEN SUCH FEES AND THE GENERAL EVALUATION CRITERIA STATED IN THE REQUEST FOR PROPOSALS SO AS TO SATISFY THE REQUIREMENT THAT OFFERORS BE ADVISED OF THE EVALUATION CRITERIA. CONTRACTS - NEGOTIATION - AWARDS - ADVANTAGEOUS TO GOVERNMENT - REQUIREMENT EVEN ASSUMING THAT THE PROTESTER IS CORRECT THAT THERE IS NO ADVANTAGE IN HAVING A CATV SYSTEM UNDERGROUND AS LOWER OFFEROR PROPOSED, INSTEAD OF ABOVE-GROUND AS PROTESTER PROPOSED, THAT FACT IS INSUFFICIENT TO AFFECT AWARD, BECAUSE, UNDER THE REQUEST FOR PROPOSALS, AN AWARD TO OTHER THAN THE LOWEST PRICE OFFEROR WOULD BE JUSTIFIED ONLY IF ITS PROPOSED CONFIGURATION OFFERED MATERIAL ADVANTAGE. CONTRACTS - NEGOTIATION - EVALUATION - FACTORS OTHER THAN PRICE - EXPERIENCE AWARDEE'S PREVIOUS EXPERIENCE AS CATV CONSTRUCTOR IS A FACTOR FOR CONSIDERATION UNDER CRITERIA FOR SYSTEM CONFIGURATION SINCE IT CONCERNS RESPONSIBILITY OF PROSPECTIVE CONTRACTOR UNDER 10 U.S.C. 2304(G). CONTRACTS - NEGOTIATION - EVALUATION - FACTORS OTHER THAN PRICE - GREATEST VALUE TO GOVERNMENT NOTWITHSTANDING THE AIR FORCE REGULATION 70-3 PROHIBITION AGAINST THE CONSIDERATION OF AN OFFER TO PROVIDE PROGRAM ORIGINATION EQUIPMENT IN THE EVALUATION OF A CATV FRANCHISE AWARD, THE ABILITY OF THE WEATHER/TIME UNIT FOR PROGRAM ORIGINATION PURPOSES PROPOSED BY THE SUCCESSFUL OFFEROR MAY BE CONSIDERED WITHOUT PREJUDICE TO OTHER OFFERORS, SINCE THE UNIT WAS INCLUDED IN THE LOW OFFER AT NO ADDITIONAL COST TO SUBSCRIBERS. CONTRACTS - NEGOTIATION - AWARDS - PROPRIETY - EVALUATION OF PROPOSALS WHILE CONSIDERATION OF THE ABILITY OF THE WEATHER/TIME UNIT TO DISSEMINATE BASE-ORIENTED INFORMATION PRESCRIBED BY AIR FORCE REGULATION WOULD BE PREJUDICIAL TO THE PROTESTER IF IT INFLUENCED THE CONTRACTING OFFICER'S AWARD DECISION, THE GAO IS UNABLE TO CONCLUDE THE AWARD MADE WAS IMPROPER IN THE ABSENCE OF A SHOWING THIS WAS A DETERMINATIVE FACTOR IN AWARDING THE CATV FRANCHISE. CONTRACTS - NEGOTIATION - EVALUATION - FACTORS OTHER THAN PRICE - SPECULATIVE FACTORS THE FAILURE OF AN AGENCY TO CONSIDER A PROTESTER'S OFFER TO PROVIDE ADDITIONAL CHANNELS AS THEY BECAME AVAILABLE VIA SATELLITE TO BE ORBITED SOME TIME IN THE FUTURE IS UNOBJECTIONABLE SINCE THE EVALUATION OF THE MOST ADVANTAGEOUS OFFER SHOULD BE CONFINED TO MATTERS WHOSE OCCURRENCE WERE NOT SUBJECT TO SPECULATION.

IN THE MATTER OF FRONTIER BROADCASTING CO. D/B/A CABLE COLOR VISION, MARCH 21, 1974:

REQUEST FOR PROPOSALS (RFP) F48608-73-R-0122 WAS ISSUED BY THE BASE PROCUREMENT DIVISION, FRANCES E. WARREN AIR FORCE BASE, WYOMING, ON SEPTEMBER 29, 1972, TO SECURE CABLE TELEVISION (CATV) SERVICES FOR THE BASE. THE RFP SPECIFIED THE CLAUSES REQUIRED BY AIR FORCE REGULAION (AFR) 70-3 TO BE INCLUDED IN THE PROCUREMENT OF CATV SYSTEMS. THE CONTRACT GRANTS EXCLUSIVE RIGHT TO THE CONTRACTOR TO PROVIDE CATV SERVICES TO THE BASE FOR A 10-YEAR TERM.

AMENDMENT NO. 1 TO THE RFP PROVIDED THE BASIS UPON WHICH AWARD WOULD BE MADE:

AWARD SHALL, AS A GENERAL RULE, BE MADE TO THAT RESPONSIBLE, RESPONSIVE OFFEROR SUBMITTING THE LOWEST ANNUAL PRICE (FOR THE SHORTEST PERIOD) FOR THAT PORTION OF SCHEDULE A ENTITLED "ESTIMATED TOTAL (ITEMS 1-4)," EXCEPT THAT AWARD MAY BE MADE TO OTHER THAN THE LOWEST OFFEROR IF JUSTIFIED BY MATERIAL DIFFERENCES IN THE CONFIGURATIONS OF THE PROPOSED SYSTEMS, THE QUALITY OF THE EQUIPMENT OFFERED, THE NATURE OF SUPPLEMENTARY SERVICES OFFERED ABOVE AND BEYOND SPECIFIED MINIMUMS, REPAIR CAPABILITIES, OR THE DEMANDS THAT WILL BE MADE WITH REGARD TO GOVERNMENT-FURNISHED PROPERTY (OFFERORS MAY MAKE THESE ADDITIONAL FACTORS KNOWN BY LISTING THEM ON THE APPROPRIATE SCHEDULE AND/OR BY ATTACHING A LETTER TO THEIR PROPOSAL).

SCHEDULE "A" PROVIDED:

CATV CONTRACTOR'S FEES

ESTIMATED

ESTIMATED * YEAR

AMOUNT NUMBER TOTAL

1. USER FEE PER MONTH FOR INITIAL OUTLET

IN INDIVIDUAL RESIDENCE OF VIEWING

AREA 700 X**

2. USER FEE PER MONTH FOR ADDITIONAL OUTLETS

IN INDIVIDUAL RESIDENCE OR VIEWING AREA 50 X**

ESTIMATED TOTAL (ITEMS 1 & 2)

ESTIMATED ESTIMATED

AMOUNT NUMBER TOTAL

3. CONNECTION FEE FOR INITIAL HOOKUP OF

SUBSCRIBER'S RECEIVER TO CATV SYSTEM

A. INDIVIDUAL RESIDENCES OR VIEWING AREAS 500

B. BACHELOR QUARTERS/AIRMEN'S DORMITORIES 200

4. CONNECTION FEE FOR ADDITIONAL OUTLETS AT

INDIVIDUAL RESIDENCES OR VIEWING AREAS 50

ESTIMATED TOTAL (ITEMS 3 & 4)

ESTIMATED TOTAL (ITEMS 1-4)

AMOUNT

5. CONNECTION FEE FOR RECONNECTING A

RECEIVER TO THE CATV SYSTEM AT A

SUBSCRIBER'S LOCATION AT WHICH SERVICE HAS

PREVIOUSLY BEEN TERMINATED

A. INDIVIDUAL RESIDENCES OR VIEWING AREAS

B. BACHELOR QUARTERS/AIRMEN'S DORMITORIES

6. CONNECTION FEE FOR RELOCATING AN OUTLET

AT SUBSCRIBER'S LOCATION

7. CIRCUMSTANCES, IF ANY, IN WHICH CATV

CONTRACTOR PROPOSES TO OFFER

DISCOUNTS IN ITEMS 3A AND 3B, ABOVE;

AMOUNT OF SUCH DISCOUNTS (SPECIFY)

*ENTER NUMBER OF YEARS, NOT TO EXCEED 10.

**ENTER NUMBER OF MONTHS (BASED UPON YEAR FIGURE ENTERED ABOVE AND MULTIPLIED BY 12), NOT TO EXCEED 120.

OF THE TWO PROPOSALS RECEIVED BY THE NOVEMBER 10, 1972, DEADLINE, THE PATE ELECTRONICS, INC. (PATE) PROPOSAL WAS LOWER THAN THAT OF THE FRONTIER BROADCASTING COMPANY, DOING BUSINESS AS CABLE COLOR VISION (CABLE). THE RESPECTIVE TOTAL AMOUNTS FOR THE 10-YEAR TERM WERE $519,600 AND $523,265. THE PRICE BREAKDOWNS WERE:

OR

ITEM CABLE MONTHLY/10 PATE RATE MONTHLY/

YEAR TOTAL 10 YEAR TOTAL

1 $5.95/$499,800 $5.95/$499,800

2 1.50/9,000 1.00/6,000

3A 19.95/9,975 19.00/9,500

B 19.95/3,990 19.00/3,800

4 10.00/500.00 10.00/500.00

ESTIMATED TOTAL $523,265 $519,600

5A 12.95 5.00

5B 12.95 5.00

6 6.00 5.00

IN RESPONSE TO ITEM 7, CABLE OFFERED FREE INITIAL CONNECTION, PROVIDED THE SUBSCRIPTIONS WERE ORDERED DURING THE INITIAL SUBSCRIPTION DRIVE AND A 1-MONTH FEE WAS PAID IN ADVANCE. HOWEVER, THE DURATION OF THE OFFER WAS NOT SPECIFIED. WITH REGARD TO PROGRAMMING, CABLE OFFERED, IN ADDITION TO THE COMMERCIAL STATIONS OUTLINED IN SCHEDULE "C," COMPREHENSIVE STOCK MARKET REPORTS, PROGRAMS PRESENTED BY THE CHEYENNE SCHOOL SYSTEMS (LARAMIE COUNTY SCHOOL DISTRICT), PLUS PROGRAMS ORIGINATED BY THE WYOMING STATE LIBRARY, IF PRESENTED. PATE, IN RESPONSE TO ITEM 7, OFFERED 3 FREE MONTHS OF CATV UPON THE PAYMENT OF THE $19 FEE FOR ORIGINAL HOOK-UP DURING CONSTRUCTION.

BOTH PROPOSALS WERE DETERMINED TO BE WITHIN THE COMPETITIVE RANGE AND, ACCORDINGLY, NEGOTIATIONS ENSUED. AS A RESULT OF NEGOTIATIONS AND RESPONSES TO THE QUESTIONS GENERATED, PATE'S PROPOSAL WAS DEEMED MOST ADVANTAGEOUS TO THE GOVERNMENT. BY LETTER DATED JANUARY 16, 1973, THE CONTRACTING OFFICER INFORMED CABLE THAT ITS PROPOSAL WOULD NOT BE ACCEPTED AND INFORMATION REGARDING THE SUCCESSFUL OFFEROR WOULD BE SUPPLIED IF DESIRED. IN RESPONSE TO A JANUARY 26, 1973, REQUEST FROM CABLE, THE CONTRACTING OFFICER INFORMED CABLE BY LETTER DATED FEBRUARY 1, 1973, OF THE AWARDEE'S IDENTITY AND THE FACTORS CONSIDERED IN THE AWARD DECISION: (1) QUALITY OF EQUIPMENT OFFERED; (2) CONFIGURATION OF THE PROPOSED SYSTEM; (3) NATURE OF THE SUPPLEMENTARY SERVICES OFFERED; (4) REPAIR CAPABILITIES; AND (5) FEES CHARGED.

AS NOTED IN THE FEBRUARY 1 LETTER, THE QUALITY OF EQUIPMENT OFFERED WAS CONSIDERED SUBSTANTIALLY EQUAL. SLIGHT DIFFERENCES THAT FAVORED PATE WERE FOUND IN THE HETERODYNE AMPLIFIERS AND THE SWITCHING EQUIPMENT. PATE OFFERED A SELF-ADJUSTING TEMPERATURE CONTROL HETERODYNE AMPLIFIER, WHILE CABLE'S EQUIPMENT WOULD REQUIRE BIANNUAL ADJUSTMENTS. THIS WAS CONCLUDED TO BE A SLIGHT ADVANTAGE TO PATE IN THE FORM OF BETTER SERVICE AND REDUCED MAINTENANCE COSTS. ALSO PATE OFFERED AUTOMATIC SWITCHING, WHEREAS CABLE OFFERED MANUAL SWITCHING AS A PART OF ITS NONDUPLICATION OF PROGRAMMING. THIS WAS CONSIDERED TO CREATE ADDED EXPENSE TO THE CABLE PROPOSAL SINCE A FULL-TIME MONITOR WOULD BE REQUIRED FOR ITS OPERATION.

CONCERNING THE CONFIGURATION OF THE PROPOSED SYSTEM, PATE'S OFFER WAS CONSIDERED MORE ADVANTAGEOUS BECAUSE ITS SYSTEM WOULD BE TOTALLY SELF CONTAINED WITHIN THE PERIMETERS OF THE BASE AND COMPLETELY UNDERGROUND. THE WEATHER SERVICE UNIT WOULD BE LOCATED IN THE COMMAND POST (BUILDING 250) AND IS A TYPE WHICH MAY BE USED FOR BROADCASTING PURPOSES OVER THE WEATHER CHANNEL. FURTHER, PATE HAD CONSTRUCTED AND INSTALLED SOME 20 PREVIOUS CATV SYSTEMS.

ON THE OTHER HAND, CABLE PROPOSED TO UTILIZE ITS EXISTING FACILITIES WHICH ARE APPROXIMATELY 7 MILES FROM THE BASE AND SERVE AS THE BASIS FOR ITS CATV SERVICE FOR THE CITY OF CHEYENNE. AS A RESULT, CABLE'S SYSTEM IS PARTIALLY ABOVE GROUND AND WOULD ONLY BE UNDERGROUND WITHIN THE BASE CONFINES. CONSEQUENTLY, THE BASE SERVICES WOULD BE SUBJECTED TO THE HAZARDS OF THE PREVAILING WEATHER CONDITIONS THEREBY EXPOSING THE SYSTEM TO POSSIBLE FAILURES. ALSO, SINCE CABLE'S SIGNAL WOULD BE REQUIRED TO TRAVEL FURTHER, A MORE COMPLEX AMPLIFICATION SYSTEM WOULD BE REQUIRED TO ACHIEVE ON-BASE SIGNAL STRENGTH EQUAL TO THAT OF CHEYENNE. LASTLY, SINCE CABLE PROPOSED SEPARATE LOCATIONS FOR THE NEWS/WEATHER SERVICE AND THE MECHANICAL SWITCHING EQUIPMENT, THE GOVERNMENT WOULD NOT HAVE THE BENEFIT OF THE USE AND CONTROL OF THESE ADDITIONAL CHANNELS.

THE THIRD FACTOR STATED TO HAVE BEEN CONSIDERED IN THE EVALUATION WAS THE NATURE OF THE SUPPLEMENTARY SERVICES OFFERED. PATE'S OFFER WAS CONSIDERED MORE ADVANTAGEOUS BECAUSE THE WEATHER UNIT PROPOSED WAS A TELEMATION UNIT WHICH PERMITS PROGRAM ORIGINATION. ADDITIONAL USE OF THE WEATHER UNIT WAS EXPECTED FOR PROGRAMS CONCERNING FIRE PREVENTION, SAFETY WINTER SURVIVAL AND GENERAL DISSEMINATION OF BASE-ORIENTED INFORMATION. EVIDENTLY, THE FOREGOING CONSIDERATIONS OUTWEIGHED CABLE'S OFFER TO PROVIDE FM RADIO STATIONS BECAUSE EXTRA CONNECTION AND MONTHLY FEES WERE TO BE CHARGED. ALSO, SINCE PATE INDICATED IT COULD PICK UP ADDITIONAL CHANNELS AS THEY BECAME AVAILABLE, CABLE WAS NOT ACCORDED ANY ADVANTAGE FOR ITS PROPOSED SHOWING OF THE LARAMIE SCHOOL DISTRICT NO. 1 PROGRAMS AND STOCK REPORTS.

REPAIR CAPABILITIES WAS THE NEXT FACTOR CONSIDERED. CABLE EMPLOYS EIGHT PEOPLE, INCLUDING FOUR FULL-TIME TECHNICIANS, AND HAS THREE SERVICE TRUCKS AVAILABLE. PATE OFFERED AT LEAST ONE CREW LOCATED ON BASE, INCLUDING A FULL-TIME TECHNICALLY QUALIFIED MANAGER. NOTING THAT CABLE MUST SERVICE ITS CHEYENNE SUBSCRIBERS (APPROXIMATELY 4000) AS WELL AS THE BASE (APPROXIMATELY 700), IT WAS CONCLUDED THAT PATE'S OFFER PRESENTED BETTER ON-BASE SERVICE. IT WAS ALSO CONCLUDED IN THIS REGARD THAT SINCE PATE'S UNDERGROUND SYSTEM WAS LESS EXTENSIVE AND INCLUDED SELF-ADJUSTING TEMPERATURE CONTROLS, IT WOULD NOT BE AS PRONE TO FUNCTIONAL FAILURES AS CABLE'S.

LASTLY, FEES WERE CONSIDERED. IT IS CLEAR THAT PATE'S OFFER WAS LOWER FOR ITEMS 1-4 OF SCHEDULE "A." HOWEVER, CONSIDERING THAT THE DIFFERENCE OVER 10 YEARS WAS ONLY $3,665, PATE'S ADVANTAGE WAS VIEWED AS MINIMAL. WAS NOTED THAT PATE'S PROPOSED FEE FOR RECONNECTION FOR INDIVIDUAL RESIDENCES AND DORMITORIES WAS SUBSTANTIALLY LOWER THAN CABLE'S, $5 VERSUS $12.95. DESPITE A DISCLAIMER BY CABLE THAT THE FEE WOULD NOT CONSTITUTE WINDFALL PROFITS AND AN EXPRESSED WILLINGNESS TO RENEGOTIATE THE FEE SHOULD IT AMOUNT TO A WINDFALL IN THE FUTURE, CABLE'S CHARGE WAS NOT CONSIDERED TO BE IN THE BEST INTEREST OF THE SUBSCRIBER. MOREOVER, CONSIDERATION WAS PLACED ON THE FACT THAT CABLE WAS NOT OFFERING ANY DISCOUNT FROM THE RATES CHARGED TO ITS CHEYENNE SUBSCRIBERS. IT WAS THE OPINION OF THE CONTRACTING OFFICER THAT SINCE CABLE WAS ESTABLISHED AND MUCH OF ITS EQUIPMENT COSTS WERE ATTRIBUTABLE TO ITS CHEYENNE OPERATION, THAT LOWER ON-BASE RATES SHOULD HAVE BEEN PROPOSED. NOTING THAT AFR 70-3 PROHIBITS CHARGING FRANCHISE FEES, ITS ABSENCE SHOULD HAVE RESULTED IN LOWER ON-BASE FEES THAN OFF-BASE.

THE INITIAL QUESTION IS WHETHER THE PROTEST OF CABLE IS TIMELY FILED UNDER OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS (STANDARDS). IT IS POINTED OUT BY THE AIR FORCE THAT CABLE FIRST RECEIVED NOTICE IT WOULD NOT RECEIVE THE CONTRACT ON JANUARY 16, 1973. THE CORRESPONDENCE EXCHANGE OF JANUARY 16 THROUGH FEBRUARY 1 TRANSPIRED BEFORE CABLE PROTESTED TO THE AIR FORCE BY LETTER DATED FEBRUARY 9, 1973. FINAL AIR FORCE DENIAL OF THE PROTEST WAS MAY 9, 1973. THEREAFTER, CABLE PROTESTED TO GAO ON MAY 16, 1973.

THE AIR FORCE CONTENDS THAT CABLE'S PROTEST IS UNTIMELY UNDER THAT PORTION OF SECTION 20.2(A) OF OUR STANDARDS THAT REQUIRES A PROTEST TO GAO BE FILED WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION IF THE PROTEST IS INITIALLY TIMELY FILED WITH THE AGENCY. THE AIR FORCE CONSIDERS THE JANUARY 16 LETTER THAT CABLE HAD NOT BEEN SUCCESSFUL AS INITIAL NOTIFICATION OF ADVERSE AGENCY ACTION. NOTIFICATION THAT A FIRM HAS NOT BEEN SUCCESSFUL MAY QUALIFY AS ADVERSE AGENCY ACTION AFTER PROTEST HAS BEEN FILED. HOWEVER, CABLE HAD NOT PROTESTED AS OF JANUARY 16, 1973. THEREFORE, THE ABOVE PORTION OF SECTION 20.2(A) MAY NOT SERVE AS A BASIS TO QUESTION THE TIMELINESS OF THE PROTEST.

THE AIR FORCE ALSO CONTENDS THAT THE CABLE PROTEST TO THE AIR FORCE WAS NOT TIMELY FILED. IT IS NOTED THAT AFR 70-3 PROVIDES FOR PROCESSING PROTESTS AGAINST THE AWARD OF A CATV FRANCHISE AGREEMENT IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-407.8 WHICH DOES NOT DELINEATE SPECIFIC DEADLINES FOR PROTESTING. HOWEVER, IT IS CONTENDED THAT THE 5-DAY TIME LIMIT OF SECTION 20.2(A) SHOULD BE APPLIED TO PROTESTS TO THE AGENCY TO AVOID CIRCUMVENTION OF THE GAO STANDARDS BY BELATEDLY PROTESTING TO AN AGENCY.

IN THIS CASE, THE BASIS FOR PROTEST WAS COMMUNICATED TO CABLE BY THE LETTER DATED FEBRUARY 1, WHICH WAS RECEIVED FEBRUARY 6. CABLE PROTESTED TO THE AIR FORCE BY LETTER DATED FEBRUARY 9, RECEIVED FEBRUARY 12. THEREFORE, THE PROTEST WAS TIMELY FILED WITH THE AIR FORCE. FURTHER, THE PROTEST WAS DENIED BY THE MAY 9 RESPONSE FROM THE DEPUTY DIRECTOR, PROCUREMENT POLICY. THE PROTEST TO GAO WAS THEN FILED MAY 16, OR 5 DAYS AFTER NOTIFICATION OF ADVERSE AGENCY ACTION. THEREFORE, THE PROTEST IS TIMELY AS IT RELATES TO MATTERS WHICH WERE NOT APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS.

THE PROTEST FROM CABLE MAY BE CATEGORIZED INTO FOUR AREAS: (1) THE EVALUATION OF PROPOSALS CONSIDERED FACTORS PROSCRIBED BY AFR 70-3; (2) THE EVALUATION WAS PREJUDICIAL TO CABLE BECAUSE IT IGNORED MATERIAL ADVANTEGEOUS TO CABLE WHILE AT THE SAME TIME CONSIDERING MATERIAL ADVANTAGEOUS TO PATE, BOTH OF WHICH WERE NOT SPECIFICALLY STATED IN THE RFP AS EVALUATION CRITERIA; (3) THE CONDUCT OF NEGOTIATIONS VIOLATED 10 U.S.C. 2304(G) BY THE FAILURE TO POINT OUT DEFICIENCIES IN CABLE'S PROPOSAL; AND (4) THE AFR DISCRIMINATED AGAINST PROPOSERS WITH LOCAL OFF- BASE CATV SYSTEMS. WHILE THERE IS A DISPUTE AS TO WHICH OF THE VARIOUS DOCUMENTS SUBMITTED BY THE AIR FORCE REFLECTS WHAT ACTUALLY OCCURRED AND THE DISSEMINATION OF SOME HAVE BEEN RESTRICTED BY THE AIR FORCE, WE LOOK TO THE CONTEMPORANEOUS DOCUMENTS AS PROVIDING THE MOST PROBATIVE STATEMENT OF THE FACTS. WE REFER, IN THIS REGARD, TO THE MEMORANDA OF NEGOTIATIONS WITH CABLE AND PATE AND THE DECEMBER 5, 1972, EVALUATION FOR AWARD MEMORANDUM DETAILING THE CONTRACTING OFFICER'S CONSIDERATIONS IN REACHING THE AWARD DECISION. SINCE THESE ARE THE THREE DOCUMENTS THAT HAVE BEEN RESTRICTED FROM RELEASE BY THE AIR FORCE, WE CAN UNDERSTAND THE PROTESTER'S RELUCTANCE TO ACCEPT THE AIR FORCE'S STATEMENTS AS TO THEIR CONTENTS. HOWEVER, SINCE THE DETERMINATION CONCERNING WHAT IS PROTECTED FROM THE PUBLIC DOMAIN IS INITIALLY THAT OF THE AGENCY INVOLVED, WE CANNOT SUBSTITUTE OUR OPINION. WE HAVE REVIEWED THESE DOCUMENTS AND OUR DECISION IS REACHED WITH FULL KNOWLEDGE OF THEM.

PARAGRAPH 1 OF AFR 70-3 MAKES ITS TERMS APPLICABLE TO ALL AIR FORCE BASES IN THE UNITED STATES AND SETS FORTH THE CATV FRANCHISE AGREEMENT REQUIREMENT TO BE USED WHENEVER RIGHT OF ACCESS TO PROVIDE CATV SERVICES ON A BASE IS GRANTED OR RENEWED. PARAGRAPH 6(B) PROVIDES THE METHOD OF EVALUATION OF PROPOSALS:

EVALUATION OF PROPOSALS. IN ADDITION TO SUCH STANDARD DETERMINATIONS AS ESTABLISHING THE COMPETITIVE RANGE OF THE RESPONSIVENESS AND RESPONSIBILITY OF OFFERORS, CONTRACTING OFFICERS SHALL TAKE THE FOLLOWING MATTERS INTO ACCOUNT IN EVALUATING PROPOSALS:

(1) AWARD SHALL, AS A GENERAL RULE, BE MADE TO THE OFFEROR SUBMITTING THE LOWEST PROPOSAL, EXCEPT THAT AWARD MAY BE MADE TO OTHER THAN THE LOWEST OFFEROR IF JUSTIFIED BY MATERIAL DIFFERENCES IN THE CONFIGURATIONS OF THE PROPOSED SYSTEMS, THE QUALITY OF THE EQUIPMENT OFFERED, THE NATURE OF SUPPLEMENTARY SERVICES OFFERED ABOVE AND BEYOND SPECIFIED MINIMUMS, REPAIR CAPABILITIES, OR THE DEMANDS THAT WILL BE MADE WITH REGARD TO GOVERNMENT- FURNISHED PROPERTY. THE LOWEST OFFEROR SHALL BE THAT OFFEROR SUBMITTING THE LOWEST PRICE IN THE "ESTIMATED TOTAL (ITEMS 1 TO 4)" BLANK OF SCHEDULE A TO ATTACHMENT 1.

(2) OFFERS TO PROVIDE THE BASE WITH PROGRAM ORIGINATION EQUIPMENT SHALL NOT BE CONSIDERED IN EVALUATING PROPOSALS. PROGRAM ORIGINATION EQUIPMENT NECESSARY TO ENABLE THE BASE TO UTILIZE ITS RESERVED CATV CHANNEL, SHOULD THE BASE DECIDE TO PUT THE CHANNEL TO USE, SHALL BE PROCURED UNDER A SEPARATE CONTRACT AND WITH APPROPRIATED FUNDS AS AVAILABLE IN ACCORDANCE WITH THE PROVISIONS OF AIR FORCE REGULATION 100 1. SUCH EQUIPMENT MAY NOT BE ACQUIRED INDIRECTLY UNDER THE CATV FRANCHISE AGREEMENT, SINCE IT WOULD THEN BE ACQUIRED AT THE EXPENSE OF ON-BASE SUBSCRIBERS.

(3) IN THE ORDINARY CASE, THE ABSENCE OF ON-BASE FRANCHISE, POLE RENTAL, OR OTHER FEES FOR THE PRIVILEGE OF DOING BUSINESS ON AN AIR FORCE BASE SHOULD RESULT IN PROPOSED USER AND CONNECTION FEES LOWER THAN THOSE CHARGED BY A NEARBY OFF-BASE CATV SYSTEM, IF ANY. THERE MAY BE INSTANCES, HOWEVER, IN WHICH A UTILITY COMPANY WILL OWN ON-BASE POLES AND THUS BE ABLE TO CHARGE POLE RENTAL FEES ON-BASE OR IN WHICH A NEARBY COMMUNITY WILL HAVING TAXING POWER OVER COMMERCIAL ACTIVITIES ON BASE. CONTRACTING OFFICERS SHOULD TAKE THESE FACTORS INTO ACCOUNT IN EVALUATING FEE PROPOSALS, PARTICULARLY WHEN ONLY ONE CONTRACTOR RESPONDS TO THE REQUEST FOR PROPOSALS. IN NO EVENT SHALL THE CATV FRANCHISE BE AWARDED TO AN OFFEROR IF THAT OFFEROR OPERATES A NEARBY OFF-BASE CATV SYSTEM AND ITS ON- BASE USER AND CONNECTION FEES ARE TO EXCEED THOSE CHARGED OFF-BASE, UNLESS THE CONTRACTING OFFICER FINDS THAT THE CONSTRUCTION, INSTALLATION, OPERATING, AND OTHER ACTUAL COSTS OF PROVIDING CATV SERVICES TO THE BASE MATERIALLY EXCEED THOSE REQUIRED WITH REGARD TO THE NEARBY OFF-BASE SYSTEM. WHERE AWARD OF THE CATV FRANCHISE WILL RESULT IN ON-BASE USER OR CONNECTION FEES GREATER THAN THE FEES CHARGED BY THE CONTRACTOR IN A NEARBY OFF-BASE CATV SYSTEM, THE CONTRACTING OFFICER SHALL INSERT IN THE CONTRACT FILE A DOCUMENTED EXPLANATION OF THE MATERIAL ON-BASE COST DIFFERENCES JUSTIFYING THE HIGHER LEVEL OF THE ON-BASE FEES.

(4) IN EVALUATING WHETHER PROPOSALS MEET THE TECHNICAL REQUIREMENTS SET FORTH IN THE CATV FRANCHISE AGREEMENT, THE CONTRACTING OFFICER SHALL CONSULT WITH THE COMMUNICATIONS OFFICER UNDER WHOSE JURISDICTION THE WORK UNDER THE CATV CONTRACT IS TO BE PERFORMED. EVIDENCE OF CLEARANCE BY THE COMMUNICATIONS OFFICER OF THE TECHNICAL ASPECTS OF THE CATV CONTRACTOR'S SYSTEM SHALL BE INCLUDED IN THE CONTRACT FILE.

PROTESTER RELIES UPON THE FEBRUARY 1 LETTER FROM THE CONTRACTING OFFICER AS INDICATIVE OF THE DISREGARD OF THE FOREGOING PROVISIONS IN THE EVALUATION PROCESS. IN DISCUSSING THE CONSIDERATION OF FEES, PARAGRAPH "E" OF THE LETTER NOTES THE SIMILARITY OF FEES FOR ALL SERVICES AND THEN GOES ON TO STATE:

*** THE MOST SIGNIFICANT FACTOR IN THE FEE SCHEDULES IS THE RECONNECTION CHARGE. PATE'S FEE IS $5.00 VERSUS (CABLE'S) $12.95.

BOTH THE AFR AND RFP STATE THAT THE LOWEST OFFER IS THAT PROPOSAL OFFERING THE LOWEST PRICE FOR ITEMS 1-4 OF SCHEDULE "A." RECONNECTION AND RELOCATION FEES WERE ITEMS 5 AND 6 OF SCHEDULE "A." THEREFORE, CABLE ASSERTS THAT INCLUSION OF THE RECONNECTION FEES IN THE EVALUATION WAS CONTRARY TO THE EXPRESS TERMS OF THE AFR AND RFP AND PREJUDICIAL TO CABLE.

THE AFR AND RFP ESTABLISH THE LOWEST COST AS THE PRIMARY EVALUATION FACTOR. HOWEVER, AWARD MAY BE MADE TO OTHER THAN THE LOWEST COST PROPOSER, UNDER THIS EVALUATION SCHEME, IF ANOTHER OFFEROR PROPOSES TECHNICAL ASPECTS, ITEMIZED IN THE AWARD EVALUATION PROVISION, WHICH ARE MATERIALLY BETTER THAN THOSE PROPOSED BY THE LOW OFFEROR. NECESSARILY, THE DETERMINATION WHETHER THE TECHNICAL ASPECTS OFFERED JUSTIFIES AWARD TO OTHER THAN THE LOW OFFEROR IS JUDGMENTAL IN NATURE AND IS ENTRUSTED TO THE DISCRETION OF THE CONTRACTING OFFICER.

FURTHER, THE RFP, AT ITEM 7, URGED OFFERORS TO MAKE THEIR OFFER OF ADDITIONAL FACTORS KNOWN BY LISTING THEM IN THE APPROPRIATE SCHEDULE OR ATTACHING A SEPARATE LETTER. CABLE FOLLOWED THIS ADVICE AND ATTACHED A RIDER IN RESPONSE TO ITEM 7 DETAILING THE FEE STRUCTURE AFTER THE INITIAL FREE CONNECTION OFFER EXPIRED, AS WELL AS OTHER SERVICES. IT WAS INDICATED THAT NO CONNECTION FEE WOULD BE CHARGED ONLY WHEN A NEW SUBSCRIBER MOVES INTO A LOCATION WHICH PREVIOUSLY WAS OCCUPIED BY A SUBSCRIBER, PAYS A ONE-MONTH SERVICE CHARGE IN ADVANCE AND IT WOULD NOT BE NECESSARY TO SEND A TECHNICIAN. CABLE RECOGNIZED THAT ITEM "G" OF THE INSTRUCTIONS FOR SCHEDULE "A" CONTEMPLATED THAT REPEATED FULL CONNECTION FEES FOR ITEMS 5A AND 5B MAY RESULT IN A WINDFALL FOR THE CONTRACTOR BECAUSE OF RAPID PERSONNEL TURNOVER. THEREFORE, CABLE INDICATED A WILLINGNESS TO NEGOTIATE A REDUCED SCHEDULE FOR THESE FEES, BUT ONLY IF EXPERIENCE BORE OUT THE GOVERNMENT'S EXPECTATIONS. WHILE THESE FEES, AND THE FEES IN GENERAL, WERE THE SUBJECTS OF DISCUSSIONS, CABLE MAINTAINED IT WAS UNABLE TO LOWER THEM BECAUSE IT COULD NOT CHARGE THE BASE SUBSCRIBERS LESS THAN ITS CITY CUSTOMERS WITHOUT ENDANGERING ITS RELATIONSHIP WITH THEM. THE MEMORANDUM OF NEGOTIATION WITH PATE INDICATES THAT THE ONLY QUESTION CONCERNING FEES RELATED TO WHETHER THERE WOULD BE CONNECTION CHARGES IN CASE OF MASS DORMITORY MOVEMENTS. PATE, CONSIDERING THAT THE MOVES WERE GOVERNMENT DIRECTED, INDICATED IT MAY NOT CHARGE CONNECTION FEES IN SUCH A SITUATION.

THE EVALUATION FOR AWARD MEMORANDUM DISCUSSES THE FACTORS CONSIDERED IN ARRIVING AT THE AWARD RECOMMENDATION. UNDER THE GENERAL HEADING OF "FEES TO BE CHARGED," IT WAS RECOGNIZED THAT THE $3,665 ADVANTAGE TO PATE OVER THE 10-YEAR PERIOD WAS MINIMAL. IT ALSO INDICATED THAT THE RECONNECTION FEES WERE THE PRIMARY DIFFERENCE BETWEEN THE TWO PROPOSALS FROM A COST STANDPOINT.

THE AIR FORCE CONTENDS THAT THIS SITUATION IS CONTROLLED BY 51 COMP. GEN. 397 (1972). IN THAT DECISION, TWO OFFERORS WERE CONSIDERED ESSENTIALLY EQUAL AFTER CONSIDERATION OF THE FACTORS STATED IN THE RFP. THEREFORE, A FINAL NEGOTIATION SESSION WAS CONDUCTED WITH EACH OFFEROR TO CONSIDER 20 ADDITIONAL FACTORS NOT SPECIFICALLY STATED IN THE RFP. IN RESPONSE TO A PROTEST TO OUR OFFICE, AGAINST THE VALIDITY OF AN AWARD BASED UPON FACTORS NOT STATED IN THE RFP, WE STATED AT PAGES 402, 403.

ALTHOUGH THESE ADDITIONAL CRITERIA MAY NOT BE EASILY CATEGORIZED UNDER THE FIVE CRITERIA SET FORTH IN THE RFP, WE BELIEVE THERE IS SUFFICIENT CORRELATION BETWEEN THE ADDITIONAL EVALUATION FACTORS USED AND THE GENERALIZED CRITERIA SHOWN IN THE RFP TO SATISFY THE REQUIREMENT THAT PROSPECTIVE OFFERORS BE ADVISED OF THE EVALUATION CRITERIA WHICH WILL BE APPLIED TO THEIR PROPOSALS. SEE 50 COMP. GEN. 565, 574 (1971). ADDITION, BOTH OFFERORS RECEIVED THE SAME EVALUATION INFORMATION AND EACH PROPOSAL WAS EVALUATED ACCORDING TO THE SAME CRITERIA. IT IS ALSO RELEVANT THAT UTILIZATION OF THESE ADDITIONAL CRITERIA DID NOT RESULT IN A CHANGE IN THE RANKING OF THE TWO OFFERORS. IN VIEW OF THE ABOVE-CITED FACTORS WE CANNOT SAY THAT THIS SECOND EVALUATION WAS UNFAIR OR UNREASONABLE.

THE AIR FORCE STATES THAT BOTH PATE AND CABLE WERE TREATED EQUALLY IN THIS REGARD: BOTH WERE ON NOTICE OF THE POSSIBLE SIGNIFICANCE OF THE FEES BECAUSE PRICES WERE REQUIRED FOR THEM; THE EVALUATION CONSIDERED THE PROPOSED FEES EQUALLY; FEES WERE THE SUBJECT OF NEGOTIATIONS; AND THE RELATIVE STANDING OF THE TWO OFFERORS WAS NOT CHANGED AS A RESULT OF THE FEE CONSIDERATION.

HOWEVER, WE BELIEVE THE CIRCUMSTANCES IN THIS CASE ARE DISTINGUISHABLE FROM THE CITED DECISION. IN THAT CASE, THE ADDITIONAL FACTORS WERE EMPLOYED TO BREAK THE DEADLOCK OF OTHERWISE EQUAL TECHNICAL PROPOSALS. SUFFICIENT CORRELATION WAS FOUND TO EXIST BETWEEN THE BROAD CRITERIA STATED IN THE RFP AND THE ADDITIONAL FACTORS TO SATISFY THE REQUIREMENT THAT OFFEROR'S BE ADVISED OF THE VALUATION CRITERIA THAT WILL BE APPLIED TO DETERMINE WHICH OFFER IS MORE ADVANTAGEOUS TO THE GOVERNMENT. IN THE PRESENT CASE, THERE IS NO SUCH CORRELATION BETWEEN THE RECONNECTION AND RELOCATION FEES AND THE CRITERIA STATED IN THE RFP THAT WOULD PERMIT THEIR CONSIDERATION. UNDER THE GENERAL EVALUATION SCHEME DESCRIBED IN THE RFP, THERE IS NO HEADING SUFFICIENTLY BROAD TO ENCOMPASS THE RECONNECTION AND RELOCATION FEE AS A FACTOR. IN FACT, THE RFP SPECIFICALLY EXCLUDED THEIR CONSIDERATION IN PARAGRAPH "D" OF THE INSTRUCTION FOR SCHEDULE A: "OWING TO THE UNCERTAINTY OF SUBSCRIBER TURNOVER, ITEMS 5-7 (RECONNECTION AND RELOCATION FEES) ARE TOO SPECULATIVE AND DIFFICULT TO ADMINISTER TO BE INCLUDED IN THE COMPUTATION OF LOWEST OFFER."

MOREOVER, IT IS IMPORTANT THAT PATE'S OFFER WAS LOW, ALBEIT MINIMALLY. UNDER THE PRESCRIBED EVALUATION SCHEME, PRICE WAS CONTROLLING AND COULD ONLY BE OVERCOME BY MATERIAL DIFFERENCES IN THE FIVE SPECIFIC AREAS STATED IN THE RFP. IN THIS LIGHT, WE ARE NOT PERSUADED BY THE DISTINCTION THE AIR FORCE ASSERTS TO EXIST BETWEEN THE COMPUTATION OF LOWEST PRICE AND THE OFFER MOST ADVANTAGEOUS TO THE GOVERNMENT. IT IS THE FUNCTION OF THE EVALUATION PROCESS, AS ANNOUNCED IN THE RFP, TO ARRIVE AT THE MOST ADVANTAGEOUS OFFER. IN ACCORDANCE WITH THE RFP, THE MOST ADVANTAGEOUS OFFER WAS PRIMARILY DEEMED THE LOWEST PRICED, OR ONE OFFERING MATERIAL ADVANTAGES IN ONE OR MORE STATED AREAS OF PREFERENCE. THEREFORE, WE DO NOT BELIEVE CONSIDERATION OF THE RECONNECTION AND RELOCATION FEES AS EVALUATION FOR AWARD FACTORS WAS PROPER.

HOWEVER, WE DO NOT BELIEVE THAT CONSIDERATION OF THESE FEES PREJUDICED CABLE'S SELECTION FOR AWARD. AS WE POINTED OUT, PATE OFFERED THE LOWEST PRICE AND, ABSENT A FINDING THAT CABLE'S PROPOSAL OFFERED MATERIAL ADVANTAGES IN ONE OR MORE OF THE EVALUATION CRITERIA, AWARD TO PATE ON THE BASIS OF ITS PRICE ALONE WOULD HAVE BEEN PROPER UNDER THE TERMS OF THE SOLICITATION. IN THIS VEIN, THE CONTRACTING OFFICER EVALUATED PATE'S PROPOSAL AS MORE ADVANTAGEOUS FROM A TECHNICAL STANDPOINT PRIMARILY BECAUSE PATE'S PROPOSED CONFIGURATION WAS LOCATED ENTIRELY UNDERGROUND AND ON-BASE. PROTESTER DISPUTES THIS CONCLUSION. SINCE THIS WAS CONSIDERED THE CHIEF DIFFERENCE BETWEEN THE TWO PROPOSALS, PROTESTER SUBMITS THAT THE CONTRACTING OFFICER'S PREFERENCE FOR PATE'S CONFIGURATION MUST BE DISREGARDED ABSENT ANY DOCUMENTATION FOR THE CONCLUSION THAT THE UNDERGROUND SYSTEM WOULD BE MORE RELIABLE THAN PROTESTER'S ABOVE-GROUND SYSTEM. AS PROTESTER NOTES, THE RELIABILITY OF A PROPOSED SYSTEM IS A TECHNICAL FACTOR RESULTING FROM THE ENGINEERING SPECIFICATIONS OF THE SYSTEM'S COMPONENTS.

EVEN IF WE ASSUME THAT THE PROTESTER IS CORRECT AND THAT THERE IS NO ADVANTAGE TO HAVING THE SYSTEM UNDERGROUND, THIS WOULD NOT BE SUFFICIENT TO WARRANT A CONCLUSION THAT AWARD SHOULD HAVE BEEN MADE TO THE PROTESTER. THIS IS SO, BECAUSE UNDER THE EVALUATION PLAN, AWARD TO OTHER THAN THE LOWEST PRICE OFFER WOULD HAVE BEEN JUSTIFIED ONLY IF PROTESTER COULD SHOW THAT ITS PROPOSED CONFIGURATION OFFERED MATERIAL ADVANTAGES. SHOWING THAT PATE'S PROPOSAL WAS NOT MORE ADVANTAGEOUS IN THIS REGARD WOULD NOT SATISFY THIS REQUIREMENT.

THIS PROTEST UNDERSCORES THE LACK OF CLARITY AND SPECIFICITY OF THE STATEMENT OF EVALUATION FACTORS IN THE RFP AND, CONSEQUENTLY, THE AFR. GAO HAS OFTEN STATED THAT A STATEMENT OF THE EVALUATION FACTORS AND THEIR RELATIVE IMPORTANCE IN THE RFP IS NECESSARY IF EQUAL AND INTELLIGENT COMPETITION IS TO BE ACHIEVED. SEE 49 COMP. GEN. 229 (1969). THEREFORE, BY SEPARATE LETTER OF TODAY, WE ARE BRINGING THE MATTER TO THE ATTENTION OF THE SECRETARY OF THE AIR FORCE FOR REMEDIAL ACTION. CONCERNING THE ASSERTED VALUE OF PROTESTER'S PROPOSED USE OF MANUAL SWITCHING EQUIPMENT TO AVOID PROGRAM DUPLICATION, THE CONTRACTING OFFICER DETERMINED THAT IT WAS NOT AN ESSENTIAL PART OF THE CATV SYSTEM. IN THE OPINION OF THE CONTRACTING OFFICER, THE ADDED EXPENSE FOR A FULL-TIME MONITOR REQUIRED FOR ITS OPERATION OUTWEIGHED ITS ADVANTAGES. THE CONTRACTING OFFICER FURTHER CHARACTERIZED IT AS MERELY A CONCESSION TO THE LOCAL CHANNEL WHICH HAS PROGRAMMING PROBLEMS BECAUSE IT IS NOT AFFILIATED WITH ANY ONE NETWORK. PROTESTER CONTENDS THAT THE MANUAL SWITCHING CAPABILITY IS NECESSARY TO COMPLY WITH FEDERAL COMMUNICATIONS COMMISSION (FCC) REGULATION REGARDING NONDUPLICATION OF PROGRAMMING. THE AIR FORCE HAS VIEWED THE MANUAL SWITCHING EQUIPMENT FROM A TECHNICAL STANDPOINT, ASSUMING THAT FCC REGULATION WILL BE MET. IT IS GERMANE TO NOTE THAT AFR REQUIRES THAT THE BASE COMMUNICATIONS OFFICER AND CIVIL ENGINEER REVIEW THE PROPOSALS FOR CATV FRANCHISE AWARDS. IN THIS LIGHT, GAO WILL NOT SUBSTITUTE ITS TECHNICAL OPINION FOR THAT OF THE COGNIZANT PURCHASING ACTIVITY.

CABLE NEXT OBJECTS TO THE CONSIDERATION OF PATE'S PREVIOUS CONSTRUCTION EXPERIENCE AS A SEPARATE AWARD CRITERIA UNDER THE GENERAL HEADING OF "CONFIGURATION OF PROPOSED SYSTEM" IN THE FEBRUARY 1 LETTER. THE AIR FORCE STATES AT PARAGRAPH 2(E) OF THE MARCH 16, 1973, FACTS AND FINDINGS THAT PRIOR EXPERIENCE WAS ONLY ONE FACTOR CONSIDERED UNDER "SYSTEM CONFIGURATION." THE OTHER CONSIDERATIONS WERE THAT PATE'S SYSTEM WAS TOTALLY SELF-CONTAINED, UNDERGROUND AND ON-BASE. CABLE'S ANSWER IS THAT SINCE THE MEMORANDA OF NEGOTIATION WERE NOT RELEASED TO CABLE, IT MUST RELY ON THE FEBRUARY 1 LETTER WHICH CABLE INTERPRETS TO ACCORD PAST EXPERIENCE SEPARATE STATUS AS AN AWARD CRITERIA.

WE DO NOT THINK IT DETERMINATIVE THAT THE CONSIDERATION OF PATE'S PRIOR EXPERIENCE IN CONSTRUCTING CATV SYSTEMS WAS LISTED UNDER "SYSTEM CONFIGURATION." THE CONSIDERATION OF AN OFFEROR'S RESPONSIBILITY I.E., ABILITY AND CAPABILITY TO PERFORM THE REQUIRED TASK, IS ALSO AN INTEGRAL PART OF THE EVALUATION PROCESS. THIS CONSIDERATION IS REQUIRED BY 10 U.S.C. 2304(G) WHERE IT IS STATED THAT "*** WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE, AND OTHER FACTORS CONSIDERED." ALSO, THE RFP STATED THAT AWARD SHALL, AS A GENERAL RULE, BE MADE TO THE "RESPONSIBLE" RESPONSIVE OFFEROR SUBMITTING THE LOWEST PRICE FOR ITEMS 1- 4. THEREFORE, CONSIDERATION OF PATE'S PRIOR EXPERIENCE WAS PROPER.

THE NEXT MATTER IS THE CONSIDERATION IN THE EVALUATION OF THE PROPOSED UTILIZATION OF PATE'S WEATHER UNIT AS PROGRAM ORIGINATION EQUIPMENT. ALSO, IN THIS VEIN, CABLE OBJECTS TO CONSIDERATION OF THE PROPOSED LOCATION OF THE WEATHER UNIT IN THE COMMAND POST (BUILDING 250) AS FACILITATING PROGRAM ORIGINATION AS CONTRARY TO PARAGRAPH 14 OF THE AFR. IN THE FEBRUARY 1 LETTER, THE SOLE ANNOUNCED FACTOR OF CONSIDERATION UNDER "NATURE OF SUPPLEMENTARY SERVICES OFFERED" WAS THE DUAL USE OF THE WEATHER UNIT/TELEMATION UNIT. AS STATED IN THE LETTER "WE ANTICIPATE A WIDE RANGE OF APPLICATION FOR THIS UNIT IN AREAS AS FIRE PREVENTION, SAFETY, WINTER SURVIVAL AND GENERAL DISSEMINATION OF BASE-ORIENTED INFORMATION." IN THIS REGARD, AFR 70-3(6)(B)(2) STATES:

OFFERS TO PROVIDE THE BASE WITH PROGRAM ORIGINATION EQUIPMENT SHALL NOT BE CONSIDERED IN EVALUATING PROPOSALS. PROGRAM ORIGINATION EQUIPMENT NECESSARY TO ENABLE THE BASE TO UTILIZE ITS RESERVED CATV CHANNEL ***SHALL BE PROCURED UNDER A SEPARATE CONTRACT AND WITH APPROPRIATED FUNDS ***. SUCH EQUIPMENT MAY NOT BE ACQUIRED INDIRECTLY UNDER THE CATV FRANCHISE AGREEMENT, SINCE IT WOULD THUS BE ACQUIRED AT THE EXPENSE OF ON-BASE SUBSCRIBERS.

PARAGRAPH 2(G) OF THE REQUIRED CLAUSE OF THE CATV FRANCHISE AGREEMENT DEFINES PROGRAM ORIGINATION EQUIPMENT AS "STUDIO-TYPE EQUIPMENT AND FACILITIES, SUCH AS CAMERAS, AMPLIFIERS, MICROPHONES, LIGHTS, VIDEOTAPE EQUIPMENT AND ANALOGOUS EQUIPMENT, NECESSARY TO ORIGINATE TELEVISION OR RADIO SIGNALS FROM A SITE WITHIN THE CONTRACTOR'S CATV SYSTEM. ***"

THE AIR FORCE ASSERTS THAT SINCE THE PROGRAM ORIGINATION CAPABILITY WAS ONLY AN INCIDENT OF THE UNIT'S PRIME FUNCTION AS A WEATHER/TIME UNIT, THE CONTRACTING OFFICER "DID NOT CONSIDER IT AS PROGRAM ORIGINATION EQUIPMENT, ESPECIALLY SINCE NO ADDITIONAL COST TO SUBSCRIBERS WAS ATTRIBUTED TO ITS USE. *** IN ADDITION, THE INCLUSION OF THE GREATER CAPABILITY OF THE WEATHER BROADCASTING UNIT IN EVALUATION OF PATE'S PROPOSAL ONLY HAD A NEGLIGIBLE IMPACT ON THE ASSESSMENT OF THE SUPPLEMENTARY SERVICE OFFERED BY PATE AND CABLE COLOR VISION."

FROM OUR READING OF THE NOVEMBER 30, 1972, MEMORANDUM OF NEGOTIATIONS WITH PATE ELECTRONICS, AND THE DECEMBER 5 EVALUATION FOR AWARD MEMORANDUM, WE DO NOT FIND SUBSTANTIATION FOR THIS VIEW. THE MEMORANDUM OF NEGOTIATIONS WITH PATE INDICATES THAT THE USE OF THE WEATHER UNIT WILL "*** ALLOW MOVIES/SLIDES TO BE SHOWN (PATE WILL NOT PROVIDE ANY MOVIES BUT WILL GIVE US THE ADDRESSES OF SEVERAL COMPANIES WHICH DISTRIBUTE FILMS ON HUNTING, FISHING, CAMPING, ETC., FREE OF CHARGE). MESSAGES OF LOCAL INTEREST MAY ALSO BE BROADCAST ON THIS CHANNEL. SINCE THIS UNIT WILL BE LOCATED IN BUILDING 250, THERE WILL ACTUALLY BE TWO GOVERNMENT CHANNELS IN THE PATE ELECTRONICS OFFER." ALSO, THE DISCUSSION OF PATE'S OFFER IN THE EVALUATION FOR AWARD MEMORANDUM WAS CONCERNED EXCLUSIVELY WITH THE AVAILABILITY IN THE COMMAND POST (BUILDING 250) OF EQUIPMENT WHICH COULD BE USED TO BROADCAST PROGRAMS AND INFORMATION ON BOTH THE GOVERNMENT RESERVED CHANNEL AND WEATHER CHANNEL.

THE AFR CONTEMPLATES CONSIDERATION OF THE INTERESTS OF BOTH THE POTENTIAL SUBSCRIBERS AND POTENTIAL SUPPLIER OF CATV SERVICES. AFR 70 3(3)(A). HOWEVER, THE PRIMARY INTEREST OF THE AIR FORCE IN AWARDING A CATV FRANCHISE IS THAT SUBSCRIBERS RECEIVE QUALITY SERVICE AT THE LOWEST POSSIBLE RATES. AFR 70-3(3)(E). IT IS FOR THIS REASON THAT AFR 70- 3(6)(B)(2) PROSCRIBES THE ACQUISITION OF PROGRAM ORIGINATION EQUIPMENT BY THE AWARD OF THE CATV FRANCHISE. THE AFR DOES NOT PROSCRIBE THE ACQUISITION OF PROGRAM ORIGINATION EQUIPMENT PER SE, BUT ONLY INSOFAR AS IT REPRESENTS AN ADDITIONAL COST TO THE POTENTIAL SUBSCRIBER. ASSUMING PROGRAM ORIGINATION EQUIPMENT CAN BE ACQUIRED UNDER THE AWARD OF A CATV FRANCHISE AT NO COST TO THE SUBSCRIBER, WE DO NOT BELIEVE THAT THE AFR WAS INTENDED TO DEPRIVE THE SUBSCRIBER OF SUCH SUPPLEMENTARY SERVICE.

WE NOTE THAT THE TELEMATION UNIT WAS THE SOLE FACTOR CONSIDERED FAVORING PATE UNDER THE HEADING OF SUPPLEMENTARY SERVICES IN THE EVALUATION MEMORANDUM AS WELL AS THE FEBRUARY 1 LETTER. IT IS CLEAR THAT CABLE OFFERED MORE SUPPLEMENTARY SERVICES (FM RADIO, LARAMIE SCHOOL DISTRICT PROGRAMS, STATE LIBRARY PROGRAMS) THAN PATE, BUT THE DUAL APPLICATION OF THE WEATHER UNIT WAS DEEMED TO OUTWEIGH THE CABLE PROPOSAL. THE CONCERN IN THIS MATTER IS WHETHER CABLE AND PATE WERE COMPETING EQUALLY. CABLE OFFERED A 24-HOUR WEATHER SERVICE WHICH SATISFIED THE REQUIREMENTS OF THE RFP. WE THINK IT IMPORTANT THAT WHILE PATE'S OFFER ALSO SATISFIED THE TECHNICAL REQUIREMENTS IT DID OFFER THE EXTRA FEATURE WHILE STILL MAINTAINING ITS LOWER PRICE. WE DO NOT PERCEIVE THE CONSIDERATION OF THE DUAL APPLICATION OF THE WEATHER UNIT AS CONSTITUTING AN UNFAIR COMPETITIVE ADVANTAGE TO PATE.

IN THIS VEIN, PATE'S PROPOSAL WAS ACCORDED SUPERIORITY BECAUSE THE LOCATION OF THE WEATHER UNIT IN THE COMMAND POST ALLOWED THE AIR FORCE ACCESS TO THE WEATHER CHANNEL AS WELL AS THE GOVERNMENT RESERVED CHANNEL. PATE PROPOSED TO RESERVE CHANNEL 10 FOR THE GOVERNMENT'S USE IN ACCORDANCE WITH CLAUSE 16 OF THE RFP, "RESERVATION OF ON-BASE CHANNEL." THIS CLAUSE STATED THAT ONE CHANNEL IS RESERVED FOR THE GOVERNMENT'S USE, BUT MAY BE USED BY THE CONTRACTOR FOR ORDINARY PROGRAMMING UNTIL THE BASE DESIRES TO USE IT. SCHEDULE "C" OF THE RFP, THE LIST OF THE STATIONS REQUIRED TO BE CARRIED, PROVIDED THE CONTRACTOR THE OPTION OF INCORPORATING THE GOVERNMENT RESERVED CHANNEL INTO THE TIME AND WEATHER OR NEWS CHANNEL UNTIL THE GOVERNMENT DESIRES TO USE THE CHANNEL. HOWEVER, PATE OFFERED A SEPARATE CHANNEL FOR THE GOVERNMENT. IN THIS REGARD, PARAGRAPH 14 OF THE AFR PROVIDED:

USE OF OTHER CHANNELS FOR INTERNAL INFORMATION PROGRAMMING.' AIR FORCE INTERNAL INFORMATION PROGRAMMING MUST BE KEPT WHOLLY SEPARATE FROM CIVILIAN COMMERCIAL OR EDUCATIONAL PROGRAMMING. CONSEQUENTLY, APART FROM THE USE OF THE ON-BASE CHANNEL RESERVED FOR GOVERNMENT USE, A BASE MAY NOT DEMAND OR USE TIME ON ANY OTHER CATV CHANNEL FOR INTERNAL INFORMATION ACTIVITIES. THIS RESTRICTION DOES NOT, HOWEVER, PROHIBIT BRIEF "WHAT'S HAPPENING ON BASE" TYPE PROGRAMS WHICH ARE PRIMARILY DESIGNED TO FURTHER BASE-COMMUNITY RELATIONS WHERE SUCH PROGRAMS ARE VOLUNTARILY CARRIED BY LOCAL BROADCASTERS AS A PUBLIC SERVICE, OR THE USE OF THE EMERGENCY TEMPORARY BROADCASTING CAPABILITY.

IN THE AUGUST 15 MEMORANDUM OF POINTS AND AUTHORITIES, THE AIR FORCE ASSERTED THAT THE INTENDED USE OF THE TELEMATION UNIT WILL NOT VIOLATE THE FOREGOING AFR PROVISION. THE MEMORANDUM STATED:

*** THE BENEFIT FOUND BY THE CONTRACTING OFFICER TO BE DERIVED FROM THE ADDITIONAL CAPABILITY OF THE WEATHER UNIT IS IN BROADCASTING GENERAL PUBLIC SERVICE ITEMS SUCH AS WILDLIFE, WINTER SURVIVAL, AND SAFETY FEATURES *** ITEMS WHICH ARE RELATED SOLELY TO THE BASE WILL NOT BE SHOWN OVER THE 24-HOUR TIME AND WEATHER CHANNEL.

THIS POSITION IS NOT SUBSTANTIATED BY THE RECORD. THE EVALUATION FOR AWARD MEMORANDUM AND THE FEBRUARY 1 LETTER BOTH INDICATED THAT THE CONTRACTING OFFICER CONTEMPLATED "*** GENERAL DISSEMINATION OF BASE ORIENTED INFORMATION" OVER THE "NEWS/WEATHER" CHANNELS, AS WELL AS FIRE PREVENTION, SAFETY AND WINTER SURVIVAL. SUCH CONSIDERATION IS CLEARLY PROHIBITED BY THE AFR AND TO THE EXTENT THAT IT INFLUENCED THE CONTRACTING OFFICER'S DECISION TO AWARD TO PATE WAS INDEED PREJUDICIAL TO CABLE. HOWEVER, WE ARE UNABLE TO CONCLUDE THAT THE CONTRACTING OFFICER WOULD NOT HAVE REACHED THE CONCLUSION THAT PATE'S OFFER WAS MORE ADVANTAGEOUS EVEN WITHOUT CONSIDERATION OF THE DISSEMINATION OF BASE-ORIENTED PROCUREMENTS. IN THE ABSENCE OF A CONCLUSION THAT THE CONSIDERATION OF THIS CAPABILITY WAS THE DETERMINATIVE FACTOR IN AWARDING THE FRANCHISE TO PATE, GAO CANNOT CONCLUDE THAT THE AWARD WAS ILLEGAL.

PROTESTER NEXT CONTENDS THAT THE EVALUATION WAS ARBITRARY AND CAPRICIOUS BECAUSE THE CONTRACTING OFFICER IGNORED ADVANTAGEOUS ASPECTS OF ITS PROPOSAL WHILE IMPROPERLY CONSIDERING ADVANTAGES OF PATE'S PROPOSAL. FIRST, PROTESTER NOTES THAT IT OFFERED EDUCATIONAL PROGRAMS AND FULL STOCK MARKET REPORTS, WHILE PATE DID NOT. THE AIR FORCE STATED IN ITS REPORTS THAT PATE COULD PICK UP THE ADDITIONAL CHANNELS AS THEY BECOME AVAILABLE, APPARENTLY REFERRING TO THE EDUCATIONAL PROGRAMS. FURTHER, THE AIR FORCE NOTED THAT THE STOCK MARKET REPORTS WOULD BE PART OF THE NEWS SERVICE. WHILE THE AIR FORCE'S CONTENTIONS REGARDING ACQUISITION OF FUTURE CHANNELS MAY BE CORRECT, OUR REVIEW OF THE MEMORANDA OF NEGOTIATION AND EVALUATION FOR AWARD, PLUS PATE'S PROPOSAL, INDICATE THAT PATE IS NOT COMMITTED TO THE BROADCAST OF EDUCATIONAL PROGRAMS FROM THE LARAMIE SCHOOL DISTRICT. PROTESTER CORRECTLY POINTS OUT THAT PURSUANT TO CLAUSE 8 OF THE RFP, ADJUSTMENT IN CONTRACTOR'S FEES, THAT CONTRACTOR IS ENTITLED TO NEGOTIATE AN EQUITABLE FEE ADJUSTMENT "WHERE THE CONTRACTING OFFICER AND THE CONTRACTOR ENTER A SUPPLEMENTAL AGREEMENT FOR THE PROVISION OF ADDITIONAL SERVICES BEYOND THOSE CALLED FOR IN THE REQUEST FOR PROPOSALS ***."

CONCERNING THE STOCK MARKET REPORTS, THE CONTRACTING OFFICER NOTED THAT STOCK MARKET INFORMATION IS CARRIED ON THE AUTOMATED 24-HOUR NEWS CHANNEL PROPOSED BY PATE, WHICH IS A CONTRACT REQUIREMENT. HOWEVER, WE NOTE THAT THIS INFORMATION IS CONTAINED IN A SUPPLEMENT TO THE FACTS AND FINDINGS DATED MAY 1, 1973, AND IS PREFACED BY THE STATEMENT "FURTHER RESEARCH BY THIS OFFICE REVEALS." INDEED, THE CONTRACTING OFFICER STATED ORIGINALLY IN THE FACTS AND FINDINGS THAT THE "SERVICES" OFFERED BY CABLE WERE NOT INCLUDED IN THE INITIAL PROPOSAL AND WERE NOT PRECISELY IDENTIFIED. THE ONLY COVERAGE OF SPORTS EVENTS, LOCAL PUBLIC AFFAIRS AND STOCK MARKET REPORTS KNOWN TO THE CONTRACTING OFFICER AT THAT TIME (MARCH 1973) WERE THOSE SHOWN ON THE LOCAL TELEVISION CHANNEL.

THE AIR FORCE STATED THAT PATE HAS OFFERED TO PROVIDE EDUCATIONAL PROGRAMMING, IF FEASIBLE, BUT THE AIR FORCE WILL NOT NEGOTIATE AN INCREASE IN FEES FOR THAT SERVICE. HOWEVER, THIS AFTER-THE-FACT STATEMENT DOES NOT CURE THE CONDUCT OF THE CONTRACTING OFFICER IN EVALUATING ASPECTS OF PATE'S PROPOSAL WHICH WERE NOT, ON THE RECORD, A MATTER OF DISCUSSION. AGAIN, WE CANNOT SAY THAT CONSIDERATION OF THESE ASPECTS WOULD HAVE REQUIRED OR LEAD THE CONTRACTING OFFICER TO CONCLUDE THAT THESE SUPPLEMENTARY SERVICES WERE SUFFICIENT TO AWARD THE FRANCHISE TO CABLE AND OVERCOME PATE'S LOWER PRICE.

PROTESTER ALSO OBJECTS TO THE FAILURE TO CONSIDER ITS OFFER TO PROVIDE ADDITIONAL CHANNELS AS THEY BECOME AVAILABLE VIA SATELLITE TRANSMISSION AS TOO SPECULATIVE. WE AGREE IN THIS REGARD WITH THE AIR FORCE DECISION. HAVE HELD THAT EVALUATION OF THE MOST ADVANTAGEOUS OFFER SHOULD BE CONFINED TO MATTERS WHICH ARE NOT SUBJECT TO SPECULATION WHETHER THEY WILL OCCUR OR NOT AND MAY BE QUANTIFIABLE. SEE, FOR EXAMPLE, B-173915, DECEMBER 21, 1971; 43 COMP. GEN. 60 (1963).

PROTESTER FURTHER CONTENDS THAT IT SHOULD HAVE RECEIVED CONSIDERATION FOR THE FACT THAT IT IS LOCALLY OWNED. PROTESTER ASSERTS THAT THIS SHOULD BE CONSIDERED IN RELATION TO THE QUALITY OF SERVICE AND REPAIR CAPABILITY OVER THE TEN-YEAR PERIOD. THE CONTRACTOR IS REQUIRED TO PROVIDE SERVICE AND REPAIR OVER THE ENTIRE LIFE OF THE CONTRACT. WE ARE UNABLE TO PERCEIVE ANY ADVANTAGE TO THE FACT THAT THE PROTESTER IS LOCATED NEARBY THE BASE INASMUCH AS ANY AWARDEE WOULD BE CONTRACTUALLY BOUND TO PROVIDE SATISFACTORY REPAIR SERVICE OR BE SUBJECT TO TERMINATION FOR DEFAULT. ALSO, CABLE ASSERTS THAT ITS REPAIR CAPABILITIES WERE SUPERIOR TO PATE'S BECAUSE PATE INTENDED TO SUBCONTRACT FOR THE OPERATION AND MAINTENANCE OF THE SYSTEM. PROTESTER CONTENDS THAT THIS FACT WAS NOT CONSIDERED BY THE CONTRACTING OFFICER. HOWEVER, PATE STATED DURING NEGOTIATION THAT IT INTENDED TO OPERATE AND MAINTAIN THE SYSTEM ITSELF. FURTHER, THE CONTRACTING OFFICER CONCLUDED THAT THE SERVICE OF ONE FULL-TIME CREW OF THE ESTIMATED NUMBER OF ON BASE SUBSCRIBERS (700) WAS MORE ADVANTAGEOUS THAN CABLE'S PROPOSAL OF 3 CREWS FOR THE BASE AND CHEYENNE SUBSCRIBERS (4,700). WE ARE UNABLE TO DISPUTE THIS CONCLUSION. PROTESTER NEXT ALLEGES THAT THE CONTRACTING OFFICER VIOLATED 10 U.S.C. 2304(G) BY FAILING TO POINT OUT DEFICIENCIES IN ITS PROPOSAL DURING NEGOTIATIONS. IN THIS VEIN, PROTESTER OBJECTS TO THE FAILURE TO NOTE THE CONTRACTING OFFICER'S PREFERENCE FOR A TOTALLY UNDERGROUND SYSTEM. THE PROTESTER STATES THAT "*** THE CONTRACTING OFFICER NEVER INFORMED CABLE COLOR VISION OF ANY POTENTIAL CONCERN WITH REGARD TO THE USE OF OVERHEAD WIRING TO CONNECT CABLE COLOR VISION'S HEAD END TO THE BASE." THE EVALUATION FOR AWARD MEMORANDUM STATED IN THIS REGARD, "DURING NEGOTIATIONS, PATE ELECTRONICS WAS MOST RECEPTIVE TO AN UNDERGROUND SYSTEM WHILE CABLE COLOR VISION WAS RELUCTANT TO ACCEPT THIS REQUIREMENT DUE TO THE EXTRA COST INVOLVED." HOWEVER, THE MEMORANDUM OF NEGOTIATIONS IS DEVOID OF ANY REFERENCE CONCERNING THE PROTESTER'S USE OF OVERHEAD WIRING. IN ANY EVENT, THE IMMEDIATE CONTENTION IS ACADEMIC, SINCE AS INDICATED ABOVE, AN AWARD TO OTHER THAN THE LOW OFFEROR ON THE SAME TECHNICAL BASIS AS THE LOW OFFEROR WOULD NOT BE APPROPRIATE.

FINALLY, GAO BELIEVES THAT THE PORTION OF THE PROTEST CONCERNING WHETHER THE AFR DISCRIMINATES AGAINST LOCAL CATV OPERATORS IS UNTIMELY UNDER THAT PORTION OF SECTION 20.2 OF OUR STANDARDS THAT REQUIRES PROTESTS BASED UPON ALLEGED IMPROPRIETIES APPARENT PRIOR TO THE CLOSING DATE FOR THE RECEIPT OF PROPOSALS BE FILED PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS. SINCE THE PROVISIONS OF THE AFR WERE INCORPORATED IN THE RFP, THEIR INCLUSION SHOULD HAVE BEEN PROTESTED PRIOR TO THE CLOSING DATE FOR THE RECEIPT OF PROPOSALS. THEREFORE, THIS PORTION OF THE PROTEST IS UNTIMELY AND WILL NOT BE CONSIDERED.

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.