B-179160, MAR 13, 1974

B-179160: Mar 13, 1974

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ALTHOUGH IN NEGOTIATED PROCUREMENT WHERE PRIMARILY TECHNICAL CONSIDERATIONS ARE INVOLVED ADMINISTRATIVE DETERMINATION OF COMPETITIVE RANGE IS NOT SUBJECT TO QUESTION UNLESS ARBITRARY. EXCLUSION OF PROTESTER FROM COMPETITIVE RANGE WAS NOT REASONABLE WHERE BASED PRIMARILY UPON FAILURE OF PROTESTER TO PROVIDE SUFFICIENT DETAIL IN PROPOSAL. AS RFP STATED EXACT REQUIREMENTS IN DETAILED MANNER AND OFFERORS WERE NOT REQUESTED TO EXPLAIN THEIR PROPOSALS BY MEANS OF NARRATIVE AND OTHER DESCRIPTIVE INFORMATION. DETERMINATION THAT PROPOSAL WAS UNACCEPTABLE BASED UPON PREDETERMINED SCORE WAS IMPROPER. SOLICITATION WAS DEFICIENT IN FAILING TO STATE RELATIVE IMPORTANCE OR WEIGHT OF EVALUATION CRITERIA.

B-179160, MAR 13, 1974

ALTHOUGH IN NEGOTIATED PROCUREMENT WHERE PRIMARILY TECHNICAL CONSIDERATIONS ARE INVOLVED ADMINISTRATIVE DETERMINATION OF COMPETITIVE RANGE IS NOT SUBJECT TO QUESTION UNLESS ARBITRARY, EXCLUSION OF PROTESTER FROM COMPETITIVE RANGE WAS NOT REASONABLE WHERE BASED PRIMARILY UPON FAILURE OF PROTESTER TO PROVIDE SUFFICIENT DETAIL IN PROPOSAL, AS RFP STATED EXACT REQUIREMENTS IN DETAILED MANNER AND OFFERORS WERE NOT REQUESTED TO EXPLAIN THEIR PROPOSALS BY MEANS OF NARRATIVE AND OTHER DESCRIPTIVE INFORMATION. MOREOVER, DETERMINATION THAT PROPOSAL WAS UNACCEPTABLE BASED UPON PREDETERMINED SCORE WAS IMPROPER. FINALLY, SOLICITATION WAS DEFICIENT IN FAILING TO STATE RELATIVE IMPORTANCE OR WEIGHT OF EVALUATION CRITERIA. HOWEVER, COMPLETION OF CONTRACT PRECLUDES REMEDIAL ACTION.

TO MOXON, INCORPORATED:

REQUEST FOR PROPOSALS (RFP) NO. F04700-73-R-1640 WAS ISSUED ON APRIL 5, 1973, BY EDWARDS AIR FORCE BASE, CALIFORNIA, FOR THE PURCHASE OF DEMULTIPLEXER/GENERATOR UNITS (DGUS). IN RESPONSE TO THIS SOLICITATION, THE SRC DIVISION OF MOXON, INCORPORATED (MOXON), ALONG WITH FOUR OTHER CONCERNS, SUBMITTED TIMELY PROPOSALS. AFTER EVALUATION BY THE AIR FORCE, EACH PROPOSAL WAS RATED ON A SCALE OF 0-100 AS FOLLOWS:

OFFEROR TECHNICAL EVALUATION SCORE

METRIC SYSTEMS CORP. 93

DATUM, INC. 75

MOXON, INC. 69

DIGITAL DEVICES, INC. 67

IMMCO 22

ALTHOUGH MOXON WAS THE LOW OFFEROR, ITS PROPOSAL AS WELL AS THOSE OF DIGITAL DEVICES AND IMMCO WERE CONSIDERED TO BE TECHNICALLY UNACCEPTABLE. AS A RESULT, THE AIR FORCE CONDUCTED NEGOTIATIONS WITH METRIC SYSTEMS AND DATUM, AND AFTER EVALUATION OF BOTH TECHNICAL CONSIDERATIONS AND PRICE THE AIR FORCE ON JUNE 29, 1973, AWARDED THE CONTRACT TO DATUM.

ON JULY 11, 1973, MOXON PROTESTED THE REJECTION OF ITS PROPOSAL TO BOTH THE AIR FORCE AND THIS OFFICE. THE BASIS OF MOXON'S PROTEST IS THAT ITS PROPOSAL WAS IMPROPERLY REJECTED ON TECHNICAL GROUNDS AND, THEREFORE, MOXON WAS IMPROPERLY DENIED AN OPPORTUNITY TO PARTICIPATE IN NEGOTIATIONS FOR THE CONTRACT.

PRIOR TO SOLICITING PROPOSALS, THE TECHNICAL SERVICES DIVISION OF THE PROCURING ACTIVITY DETERMINED THAT TO BE ACCEPTABLE A PROPOSAL MUST OBTAIN A SCORE OF 75 PERCENT OR BETTER. THE INITIAL TECHNICAL EVALUATION REPORT OF MOXON'S PROPOSAL STATED IT WAS UNACCEPTABLE WITH A SCORE OF 69 PERCENT AND THAT IT WAS "ESSENTIALLY A READ BACK OF THE SPECIFICATION ***." AS A RESULT OF THE CONTRACTING OFFICER'S REQUEST FOR FURTHER SUBSTANTIATION REGARDING MOXON'S UNACCEPTABILITY, THE EVALUATORS FURNISHED THE FOLLOWING REPORT:

"1. MOXON ENCLOSED A BROCHURE ON THEIR MODEL 514 TIME CODE GENERATOR. HOWEVER, THEIR UNIT (MODEL 514) DOES NOT ACCEPT IRIG B AM TIMING SIGNALS AND CONSEQUENTLY DOES NOT SYNCHRONIZE TO OUTSIDE SERIAL TIMING SIGNALS AS REQUIRED IN THE SPECIFICATION. IN ADDITION, THE MODEL 514 DOES NOT DECODE INFORMATION FROM A SERIAL SIGNAL. THUS THE CONTRACTOR HAS NOT DEMONSTRATED OR EVEN CLAIMED TO HAVE BUILT 'SIMILAR' UNITS BEFORE.

"2. CABLE RETRACTORS: THE PROPOSAL DID NOT MENTION THE USE OF CABLE RETRACTORS REQUIRED BY THE SPECIFICATION.

"3. DRAWINGS: NO DRAWINGS WERE PROVIDED WITH THE PROPOSALS AND CONSEQUENTLY IT WAS DIFFICULT AND SOMETIMES IMPOSSIBLE TO EVALUATE THE TECHNICAL ASPECTS OF THE OFFEROR'S PROPOSED METHOD OF APPROACH TO THE PROBLEM.

"4. BLANKET STATEMENTS: THE OFFEROR USED SUCH BLANKET STATEMENTS AS 'ARE UNDERSTOOD AND WILL BE COMPLIED WITH' OR 'NO EXCEPTION OR CLARIFICATION IS REQUIRED IN THE AREA'.

"5. TDM SIGNAL: NO DISCUSSION WAS PROVIDED AS TO HOW, IF ANY, SYNCHRONIZATION WOULD BE ACHIEVED WITH RESPECT TO THE TDM SIGNAL.

"6. IRIG B GENERATOR: THE SPECIFICATION STATES THAT THE GENERATOR WILL BE SYNCHRONIZED WITH RESPECT TO IRIG B DERIVED FROM THE TDM SIGNAL. THE OFFEROR STATED ONLY THAT SYNCHRONIZATION WOULD BE MAINTAINED BY CHANGING THE PHASE OF THE OUTPUTTED IRIG B AM SIGNAL 'ONLY AFTER A SELECTED AMOUNT OF ERRONEOUS TIME FRAMES HAVE BEEN EXPERIENCED'. THIS IS NOT ACCEPTABLE.

"7. ACQUISITION DATA: NO MENTION IS MADE OF THE OUTPUT CHARACTERISTICS OF EITHER THE ACQUISITION DATA.

"8. ACQUISITION CLOCK: SAME AS ABOVE.

"9. SECTION 4.0: THE PROPOSAL ONLY STATES 'WILL BE FULFILLED'. THIS IS UNSATISFACTORY.

"10. SECTION 5.0: THE OFFEROR DID NOT ADDRESS THIS SECTION.

"11. EXPERIENCE: THE OFFEROR CLAIMS THAT PREVIOUSLY PROCURED ASTRODATA UNITS ARE SIMILAR TO THE DGUS. THE OFFEROR ALSO CLAIMS THAT HIS ENGINEER MR. TOPE WAS FAMILIAR WITH THE DESIGN OF THE PREVIOUS UNITS. WHILE MOXON MAY HAVE ACQUIRED THE MANUFACTURING DRAWINGS FROM ASTRODATA AND SOME OF THEIR PERSONNEL, THIS IN ITSELF IS NOT SUFFICIENT EVIDENCE OF ABILITY TO PERFORM AND/OR UNDERSTANDING OF THE PROBLEM. THEIR PROPOSAL DID NOT INDICATE A GOOD UNDERSTANDING OF THE REQUIREMENT AND THEIR TECHNICAL APPROACH WAS NOT PRESENTED IN A FORMAT CAPABLE OF BEING EVALUATED."

MOXON CONTENDS THAT ITS FAILURE TO DISCUSS IN DETAIL THE CABLE RETRACTOR, THE ACQUISITION DATA, THE ACQUISITION CLOCK, AND SECTIONS 4 AND 5 OF THE SPECIFICATIONS DID NOT REQUIRE REJECTION OF ITS PROPOSAL BECAUSE THESE SPECIFICATIONS WERE SO DETAILED THAT ITS STATEMENT OF INTENT TO COMPLY WITH THESE REQUIREMENTS WAS ALL THAT WAS NECESSARY. IT STATES THAT IT DID NOT PROVIDE DRAWINGS BECAUSE NO DRAWINGS WERE REQUIRED BY THE RFP. REFERENCE TO ITS EXPLANATION OF THE TDM SIGNAL AND THE IRIG B GENERATOR, MOXON SUBMITS THAT IT ADEQUATELY DESCRIBED ITS METHODOLOGY AND THAT THE AIR FORCE'S DISAGREEMENT WITH MOXON'S IRIG B AM SIGNAL APPROACH IS A RESULT OF THE EVALUATION BOARD'S LACK OF UNDERSTANDING OF MOXON'S PROPOSAL. MOXON CITES THIS LACK OF UNDERSTANDING AS ONE PROBLEM AREA WHICH COULD HAVE BEEN ELIMINATED BY DISCUSSIONS RELATING TO ITS PROPOSAL. MOXON FURTHER CONTENDS THAT IT DID NOT HAVE TO FURNISH DETAILED PROOF OF EXPERIENCE, AS THE RFP ONLY REQUIRED OFFERORS TO BE PREPARED TO DEMONSTRATE EXPERIENCE. MOREOVER, THE PROTESTER STATES IT HAS THE REQUIRED EXPERIENCE AS INDICATED IN ITS PROPOSAL. IT CONTENDS THAT THE AIR FORCE EVALUATED ITS PROPOSAL AS BEING BASED ON THE MOXON MODEL 514, WHEN THE PROPOSAL CLEARLY STATED THAT THE LITERATURE ON THE 514 MODEL WAS FURNISHED ONLY TO SHOW THAT THE "CHASSIS PROPOSED IS SIMILAR TO THAT PICTURED ***."

THE RECORD INDICATES THAT THE INITIAL AIR FORCE DETERMINATION OF MOXON'S UNACCEPTABILITY WAS BASED UPON ITS SCORE OF 69 PERCENT, ITS FAILURE TO PROVIDE SUFFICIENT TECHNICAL DETAILS, AND THE FACT THAT IT WAS "ESSENTIALLY A READ BACK OF THE SPECIFICATION." SPECIFICALLY, THE AIR FORCE TAKES THE POSITION THAT MOXON'S FAILURE TO PROVIDE INFORMATION CONCERNING SUCH CRITICAL AREAS AS SYNCHRONIZATION, IMPEDANCE, RISE TIME, AND VOLTAGE LEVELS, OTHER THAN STATING THAT THE REQUIREMENTS WOULD BE FULFILLED OR THAT NO EXCEPTION WAS TAKEN, PRECLUDED A POSITIVE EVALUATION OF MOXON'S PROPOSAL.

WHILE A BLANKET PROMISE TO FURNISH A CONFORMING ITEM IS NOT AN ADEQUATE RESPONSE TO PROVISIONS OF AN RFP WHICH REQUIRES AFFIRMATIVE RESPONSES BY MEANS OF NARRATIVE AND OTHER DESCRIPTIVE INFORMATION, B 174597(2), APRIL 21, 1972, A REVIEW OF THE SUBJECT RFP REVEALS THAT OFFERORS WERE NOT REQUESTED TO EXPLAIN THEIR PROPOSALS IN DETAIL. PARAGRAPH 2.1 OF THE TECHNICAL SPECIFICATION SIMPLY ADVISED THE OFFERORS THAT THEY WERE REQUIRED TO DESIGN AND DELIVER AN ACCEPTABLE CONTRACT END ITEM THAT COMPLIED WITH THE TECHNICAL EXHIBIT. THE TECHNICAL EXHIBIT CLEARLY STATED THE GOVERNMENT'S EXACT REQUIREMENTS IN A VERY DETAILED MANNER. FOR EXAMPLE, WHILE THE AIR FORCE FAULTS MOXON FOR FAILING TO DISCUSS IN DETAIL EITHER THE ACQUISITION DATA (PARAGRAPH 3.2.2.2) OR THE ACQUISITION CLOCK (PARAGRAPH 3.2.2.3), THESE PARAGRAPHS STATE SUCH PRECISE REQUIREMENTS THAT THEY APPEAR ADEQUATE FOR SPECIFICATIONS IN AN ADVERTISED PROCUREMENT. THESE AND MANY OTHER DETAILED SPECIFICATIONS INDICATE THAT THE OFFEROR WAS REQUIRED TO SUPPLY AN ITEM MEETING PRECISE DESIGN AND PERFORMANCE CHARACTERISTICS. IN THESE CIRCUMSTANCES, WE BELIEVE THERE IS SUBSTANTIAL MERIT IN MOXON'S CONTENTION THAT ELABORATION OF MANY OF THE SPECIFICATIONS WAS UNNECESSARY AND MERE ACCEPTANCE WAS ADEQUATE.

IN REFERENCE TO THE AIR FORCE'S CONTENTION THAT MOXON'S FAILURE TO ELABORATE ON THESE SPECIFICATIONS PRECLUDED A POSITIVE EVALUATION OF ITS PROPOSAL, WE HAVE HELD THAT WHERE AN OFFEROR'S FAILURE TO PROVIDE DETAILED INFORMATION RENDERS THE PROPOSAL INFERIOR BUT NOT UNACCEPTABLE THE PROPOSAL SHOULD BE CONSIDERED WITHIN THE COMPETITIVE RANGE FOR DISCUSSION. B-173716, DECEMBER 7, 1971; B-167291, DECEMBER 1, 1969. IS OUR VIEW THAT MOXON'S FAILURE TO ELABORATE ON MANY OF THE CITED SPECIFICATIONS SHOULD NOT HAVE BEEN VIEWED AS RENDERING ITS PROPOSAL UNACCEPTABLE WITHOUT DISCUSSIONS. 47 COMP. GEN. 29 (1967).

WE ALSO NOTE WHAT WE CONSIDER TO BE ANOTHER DEFICIENCY IN DETERMINING THE COMPETITIVE RANGE. IT IS STATED IN THE INITIAL EVALUATION REPORT THAT DATUM IS ACCEPTABLE WITH A SCORE OF 75 PERCENT AND THAT MOXON IS UNACCEPTABLE WITH A SCORE OF 69 PERCENT. RELIANCE UPON THESE SCORES APPEARS TO HAVE BEEN A MAJOR FACTOR IN DETERMINING THE COMPETITIVE RANGE AND WAS BASED UPON A MARCH 30, 1973, MEMORANDUM OF THE AIR FORCE FLIGHT TEST CENTER CONCERNING THE EVALUATION CRITERIA, WHICH STATES THAT TO BE ACCEPTABLE AN OFFEROR SHALL OBTAIN A SCORE OF 75 PERCENT OR BETTER. HAVE STATED THAT A DETERMINATION OF COMPETITIVE RANGE BASED UPON A COMPARISON OF AN OFFEROR'S SCORE WITH A PREDETERMINED SCORE FOR ACCEPTABILITY IS IMPROPER. 50 COMP. GEN. 59 (1970). RATHER, THE COMPETITIVE RANGE SHOULD BE DETERMINED BY EXAMINING THE ARRAY OF SCORES FOR ALL PROPOSALS SUBMITTED, 52 COMP. GEN. 382, 387 (1972), AND BORDERLINE PROPOSALS SHOULD NOT AUTOMATICALLY BE EXCLUDED FROM CONSIDERATION IF REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE. B 176761(2), JANUARY 24, 1973. IN VIEW OF THE CLOSENESS OF THE DATUM AND MOXON SCORES (75 TO 69), AND CONSIDERING THE OTHER MATTERS DISCUSSED ABOVE, WE QUESTION THE REASONABLENESS OF THE AIR FORCE POSITION THAT MOXON WAS PROPERLY EXCLUDED FROM THE COMPETITIVE RANGE BECAUSE ITS PROPOSAL WOULD REQUIRE MAJOR REVISION.

FURTHERMORE, WE BELIEVE MOXON IS CORRECT IN ITS ASSERTION THAT THE EVALUATORS ERRONEOUSLY CONCLUDED THAT ITS PROPOSAL WAS BASED UPON FURNISHING ITS MODEL 514. IT IS OUR VIEW THAT THE PROPOSAL CLEARLY INDICATED THAT THE REFERENCE TO MODEL 514 WAS FOR A LIMITED PURPOSE. MOREOVER, WE BELIEVE THE RFP PROVISION RELATING TO "CONTRACTOR EXPERIENCE" COULD REASONABLY BE INTERPRETED TO REQUIRE PROOF OF SUCH EXPERIENCE AFTER SUBMISSION OF PROPOSALS.

WHILE THE AIR FORCE HAD SOME DOUBTS CONCERNING THE ACCEPTABILITY OF MOXON'S PROPOSAL, AND THESE DOUBTS WERE INSTRUMENTAL IN THE REJECTION OF ITS OFFER, WE DO NOT BELIEVE THAT THIS WAS A PROPER BASIS FOR THE ACTION TAKEN. A PROPOSAL MUST BE REGARDED AS BEING IN THE COMPETITIVE RANGE UNLESS IT IS SO DEFICIENT OR OUT OF LINE IN PRICE AS TO PRECLUDE FURTHER MEANINGFUL NEGOTIATIONS. B-173716, SUPRA. IT IS OUR VIEW THAT THE RECORD IN THIS CASE FAILS TO ESTABLISH THAT MEANINGFUL NEGOTIATIONS WERE PRECLUDED, PARTICULARLY IN VIEW OF THE LOWER PRICED PROPOSAL SUBMITTED BY MOXON. HOWEVER, SINCE WE UNDERSTAND THAT THE ITEMS HAVE BEEN DELIVERED AND ACCEPTED, NO REMEDIAL ACTION BY OUR OFFICE IS POSSIBLE.

FINALLY, IT SHOULD BE NOTED THAT ALTHOUGH THE SOLICITATION LISTED FIVE EVALUATION CRITERIA IN SHORT QUESTION FORM, IT WAS DEFICIENT IN FAILING TO STATE THE RELATIVE IMPORTANCE OR WEIGHT OF THESE EVALUATION CRITERIA. SEE 50 COMP. GEN. 59, SUPRA. ALTHOUGH NO FURTHER ACTION BY OUR OFFICE IS CONTEMPLATED, COGNIZANT PROCUREMENT PERSONNEL SHOULD BE APPRISED OF THE DEFICIENCIES IN THIS PROCUREMENT.