B-179641, FEB 25, 1974

B-179641: Feb 25, 1974

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AGENCY DETERMINATION THAT PROTESTER'S DESCRIPTIVE LITERATURE FAILED TO AFFIRMATIVELY DEMONSTRATE CONFORMANCE OF OFFERED ELECTRONIC EQUIPMENT TO TECHNICAL REQUIREMENTS OF INVITATION WILL NOT BE DISTURBED WHERE DETERMINATION INVOLVED HIGHLY TECHNICAL FACTORS AND GAO IS UNABLE TO CONCLUDE AGENCY'S ACTION WAS EITHER ERRONEOUS OR ARBITRARY. SAME PRINCIPLE IS APPLICABLE TO AGENCY'S DETERMINATION THAT NEXT LOW BIDDER'S DESCRIPTIVE LITERATURE DEMONSTRATED COMPLIANCE WITH INVITATION REQUIREMENTS. 2. THREE BIDS WERE RECEIVED AND OPENED. THE DESCRIPTIVE LITERATURE SUBMITTED WITH THE BIDS WAS EVALUATED BY TECHNICAL REPRESENTATIVES OF THE REQUIRING ACTIVITY. 967) OF ATLANTIC RESEARCH CORPORATION (ATLANTIC) WAS DETERMINED TO BE NONRESPONSIVE BECAUSE IN THE AGENCY EVALUATORS' OPINION.

B-179641, FEB 25, 1974

1. AGENCY DETERMINATION THAT PROTESTER'S DESCRIPTIVE LITERATURE FAILED TO AFFIRMATIVELY DEMONSTRATE CONFORMANCE OF OFFERED ELECTRONIC EQUIPMENT TO TECHNICAL REQUIREMENTS OF INVITATION WILL NOT BE DISTURBED WHERE DETERMINATION INVOLVED HIGHLY TECHNICAL FACTORS AND GAO IS UNABLE TO CONCLUDE AGENCY'S ACTION WAS EITHER ERRONEOUS OR ARBITRARY. SAME PRINCIPLE IS APPLICABLE TO AGENCY'S DETERMINATION THAT NEXT LOW BIDDER'S DESCRIPTIVE LITERATURE DEMONSTRATED COMPLIANCE WITH INVITATION REQUIREMENTS. 2. NONRESPONSIVE BID MAY NOT BE CONSIDERED FOR BID CORRECTION UNDER ASPR 2-406 SINCE TO PERMIT BIDDER TO MAKE ITS BID RESPONSIVE BY ALTERATION OF BID AFTER BID OPENING WOULD BE TANTAMOUNT TO PERMITTING SUBMISSION OF NEW BID. SEE 40 COMP. GEN. 132.

TO ATLANTIC RESEARCH CORP.:

ON JULY 18, 1973, WHITE SANDS MISSILE RANGE ISSUED INVITATION FOR BIDS (IFB) NO. DAAD07-74-B-0001, FOR THE PROCUREMENT OF THREE UNINTERRUPTIBLE POWER SYSTEMS (UPS), SHELTERS, INSTALLATION, AND TRAINING, TO BE SUPPLIED IN ACCORDANCE WITH PURCHASE DESCRIPTION (PD) 6076-73, DATED MARCH 20, 1973. THE INVITATION REQUIRED THAT BIDDERS SUBMIT DESCRIPTIVE LITERATURE AS A PART OF THEIR BIDS TO SHOW "THAT THE PERFORMANCE CHARACTERISTICS OF THE COMMERCIAL UPS'S BYPASS CIRCUITS AND AUTOMATIC BYPASS SWITCHES OFFERED CAN FULFILL THE PERFORMANCE CHARACTERISTICS REQUIRED BY PARAGRAPHS 3.2.1, 3.2.2, 3.2.4, 3.2.5, 3.2.6, 3.2.7, 3.2.8, AND 3.2.9 OF THE PURCHASE DESCRIPTION." THE INVITATION ALSO PROVIDED THAT FAILURE OF THE DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMED TO THE SPECIFICATIONS WOULD REQUIRE REJECTION OF THE BID. ON AUGUST 13, 1973, THREE BIDS WERE RECEIVED AND OPENED. THE DESCRIPTIVE LITERATURE SUBMITTED WITH THE BIDS WAS EVALUATED BY TECHNICAL REPRESENTATIVES OF THE REQUIRING ACTIVITY. AS A RESULT OF THIS EVALUATION, THE LOW BID ($320,967) OF ATLANTIC RESEARCH CORPORATION (ATLANTIC) WAS DETERMINED TO BE NONRESPONSIVE BECAUSE IN THE AGENCY EVALUATORS' OPINION, ATLANTIC'S DESCRIPTIVE DATA FAILED TO INDICATE CONFORMANCE WITH THREE PARAGRAPHS OF THE PD. ON AUGUST 31, 1973, AWARD WAS MADE TO AVTEL CORPORATION (AVTEL) IN THE AMOUNT OF $382,842 AS THE LOWEST ACCEPTABLE BIDDER.

FOR REASONS DISCUSSED BELOW, THE PROTEST IS DENIED.

ATLANTIC CONTENDS THAT THE DESCRIPTIVE LITERATURE SUBMITTED WITH ITS BID FULLY MEETS ALL THE REQUIREMENTS OF THE PD AND, THEREFORE, IT WAS ENTITLED TO THE AWARD AS THE LOW RESPONSIVE BIDDER. ATLANTIC INSISTS THAT THE AGENCY'S CONTRARY CONCLUSION IS ARBITRARY AND THE RESULT OF A TECHNICAL EVALUATION WHICH WAS BIASED IN FAVOR OF AVTEL. ATLANTIC HAS SUBMITTED DETAILED EXPLANATIONS WHICH, IN ITS VIEW, SUPPORT ITS POSITION THAT THE DESCRIPTIVE LITERATURE SUBMITTED WITH THE BID MEETS ALL THE TECHNICAL REQUIREMENTS OF THE PD.

THE FIRST AREA OF DISPUTE INVOLVES PARAGRAPH 3.2.2E, "TRANSIENT VOLTAGE DURING FAILURE OF COMMERCIAL POWER SOURCE". ATLANTIC POINTS OUT THAT THIS PARAGRAPH ESSENTIALLY STATES THAT IF THERE IS A FAILURE OF COMMERCIAL (PRIMARY) POWER, THE UPS WILL TAKE OVER AND PROVIDE BATTERY POWER, AND THAT THE OUTPUT VOLTAGE TRANSIENT SHALL NOT BE MORE THAN PLUS OR MINUS 10 PERCENT, AND THAT IT WILL RETURN TO THE REGULATION BAND IN 100 MILLISECONDS OR LESS. ATLANTIC ARGUES THAT ITS DATA MEETS THESE REQUIREMENTS SINCE PARAGRAPH 4.2 OF ITS DESCRIPTIVE DATA STATES THAT "UPON DEGRADATION OR FAILURE OF THE PRIMARY AC POWER, INPUT POWER FOR THE INVERTERS IS AUTOMATICALLY SUPPLIED FROM THE BATTERIES WITH NO INTERRUPTION TO OR DISTURBANCE OF INVERTER OUTPUTS IN EXCESS OF PARAGRAPH 4.4.2.2", AND PARAGRAPH 4.4.2.2 OF THE DATA DEFINES THESE OUTPUTS BY STATING "*** THE VOLTAGE WILL NOT DEVIATE MORE THAN PLUS OR MINUS 10 PERCENT PEAK AND WILL RETURN TO THE REGULATION BAND WITHIN 50 MILLISECONDS." THEREFORE, ATLANTIC CONTENDS THAT ITS DESCRIPTIVE LITERATURE WAS RESPONSIVE TO THIS REQUIREMENT OF THE PD.

ATLANTIC ALSO CONTENDS THAT ITS DATA MEETS THE REQUIREMENT OF PARAGRAPH 3.2.2K OF THE PD, "OVERLOAD CAPACITY", WHICH SPECIFIES, IN EFFECT, THAT THE UPS OUTPUT SHALL NOT DEVIATE MORE THAN 10 PERCENT EVEN IF IT IS LOADED TO 150 PERCENT OF MAXIMUM RATING FOR A PERIOD OF UP TO 10 SECONDS (AND A .8 LAGGING POWER FACTOR), AND, WHEN BROUGHT BACK TO FULL RATED LOAD, THE OUTPUT VOLTAGE SHOULD BE RETURNED TO THE REGULATION BAND IN LESS THAN 100 MILLISECONDS. ATLANTIC DIRECTS ATTENTION TO PARAGRAPH 4.4.7.2B OF ITS DATA WHICH STATES THAT THE UPS IS CAPABLE OF MAINTAINING OUTPUT POWER WITHIN "LIMITS SPECIFIED HEREIN" FOR OVERLOADS OF 150 PERCENT OF FULL LOAD RATING FOR A MINIMUM OF 10 SECONDS. THE "LIMITS SPECIFIED HEREIN", IT IS NOTED, ARE DEFINED IN PARAGRAPH 4.4.2.2 WHERE IT IS STATED THAT "THE VOLTAGE WILL NOT DEVIATE MORE THAN PLUS OR MINUS 10 PERCENT AND WILL RETURN TO REGULATION BAND WITHIN 50 MILLISECONDS", WITH A 1 TO .8 LAGGING POWER FACTOR.

THE AGENCY CONTENDS THAT IN QUOTING FROM PARAGRAPH 4.4.2.2 OF ITS DESCRIPTIVE DATA TO ESTABLISH CONFORMANCE WITH PARAGRAPHS 3.2.2E AND 3.2.2K OF THE PD, ATLANTIC HAS MISREPRESENTED THE INTENT OF THAT PARAGRAPH BY OMITTING THE INTRODUCTORY MODIFYING PHRASE WHICH STATES "FOR STEP APPLICATION OF LOAD FROM NO LOAD TO FULL RATED LOAD ***". IT IS THE AGENCY'S POSITION THAT WITH THE ADDITION OF THIS LANGUAGE TO THE PORTION OF THE VOLTAGE TRANSIENT STATEMENT QUOTED BY ATLANTIC, PARAGRAPH 4.4.2.2 APPLIES ONLY TO CHANGES IN LOAD WITHIN THE RATED LOAD CAPACITY OF THE UPS AND NOT TO OUTPUT VOLTAGE TRANSIENTS DUE TO INTERRUPTION OF THE PRIMARY INPUT POWER (3.2.2E) AND DUE TO APPLICATION AND REMOVAL OF OVERLOAD (3.2.2K).

FURTHERMORE, ATLANTIC ARGUES THAT ITS DATA MEETS THE REQUIREMENTS OF PARAGRAPH 3.2.2G OF THE PD, "STEADY STATE FREQUENCY". ATLANTIC INTERPRETS THIS PARAGRAPH AS REQUIRING THAT OUTPUT FREQUENCY MUST BE BETWEEN 59.5 HZ AND 60.5 HZ, AND THAT THE OUTPUT FREQUENCY AND COMMERCIAL POWER SOURCE FREQUENCY MUST BE SYNCHRONIZED TO WITHIN A TOLERANCE OF PLUS OR MINUS .4 MILLISECONDS. ATLANTIC POINTS OUT THAT PARAGRAPH 4.4.4.2.3 OF ITS DESCRIPTIVE LITERATURE STATES THAT THE INVERTER UNIT OUTPUT FREQUENCY WILL BE BETWEEN 59.82 HZ AND 60.18 HZ, WHICH MORE THAN MEETS THE REQUIRED ACCURACY. THE PROTESTER ALSO NOTES THAT PARAGRAPH 4.3.1 OF ITS DATA DEFINES THE UPS AS A SYSTEM WHICH CONTAINS "SYNCHRONIZING EQUIPMENT", AND PARAGRAPH 4.4.5.5 CALLS FOR AN ALARM PANEL WHICH OPERATES WHEN THE SYSTEM IS NOT SYNCHRONIZED. BY NOT SPECIFYING A TOLERANCE OR ERROR ON THE DEGREE OF SYNCHRONIZATION, IT IS ATLANTIC'S OPINION THAT A READER OF THE DATA MUST CONCLUDE THAT THE SYNCHRONIZATION WILL BE PERFECT WITHIN THE ACCURACY OF NORMAL INSTRUMENTATION TO MEASURE ANY DEVIATION OR TOLERANCE. THIS, ATLANTIC INSISTS, IS MORE ACCURATE THAN REQUIRED BY THE PD.

THE AGENCY QUESTIONS ATLANTIC'S LOGIC IN ASSERTING THAT THE LACK OF A SPECIFIED TOLERANCE OR ERROR ON THE DEGREE OF SYNCHRONIZATION LEADS TO THE CONCLUSION THAT SYNCHRONIZATION WILL BE WITHIN THE ACCURACY OF NORMAL INSTRUMENTATION. IT IS THE AGENCY POSITION THAT THE REFERENCE TO "NORMAL INSTRUMENTATION" IN THE ATLANTIC DATA IS NOT PERTINENT SINCE IT IS THE DEGREE OF SYNCHRONIZATION TOLERANCE OR ERROR WHICH IS REQUIRED AND NOT THE MEASUREMENT OF THIS PARAMETER. IN ADDITION, THE AGENCY POINTS OUT THAT SYNCHRONIZING EQUIPMENT CAN BE USED IN A UPS FOR PURPOSES OTHER THAN THAT SPELLED OUT IN PARAGRAPH 3.2.2G OF THE PD. ACCORDINGLY, THE AGENCY CONCLUDES THAT THE FACT THAT THE ATLANTIC DATA INDICATES THAT SYNCHRONIZING EQUIPMENT IS OFFERED IS NOT INDICATIVE OF ITS PERFORMANCE PARAMETERS.

THE DESCRIPTIVE LITERATURE CLAUSE INCLUDED IN THE SOLICITATION PROVIDED THAT SUCH DATA WAS REQUIRED TO ESTABLISH DETAILS OF THE PRODUCT OFFERED AND, FURTHER, THAT FAILURE OF THE DESCRIPTIVE LITERATURE TO SHOW CONFORMANCE TO THE SPECIFICATIONS ENUMERATED THEREIN WOULD REQUIRE REJECTION OF THE BID. IT HAS BEEN THE CONSISTENT POSITION OF THIS OFFICE THAT THE SUBMISSION OF DESCRIPTIVE LITERATURE WHICH INDICATES DEVIATIONS FROM THE SPECIFICATIONS REQUIRES REJECTION OF THE BID AS NONRESPONSIVE. 46 COMP. GEN. 315 (1966). IN THE INSTANT CASE, THE ARMY HAS DETERMINED THAT THE ABSENCE OF CERTAIN INFORMATION IN THE DESCRIPTIVE DATA CALLED FOR BY THE INVITATION MADE IT IMPOSSIBLE FOR THE AGENCY TO DETERMINE WHETHER THE EQUIPMENT OFFERED BY THE PROTESTER WOULD CONFORM WITH REQUIREMENTS REFERENCED IN THE PD. THE DETERMINATION OF WHETHER A BIDDER'S PRODUCT MEETS THE SPECIFICATIONS IS PRIMARILY WITHIN THE JURISDICTION OF THE PROCUREMENT AGENCY, 39 COMP. GEN. 570 (1960), AND WHEN THAT DETERMINATION INVOLVES HIGHLY TECHNICAL OR SCIENTIFIC FACTORS, WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING AGENCY IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY DETERMINATION IS IN ERROR OR ARBITRARY. SEE 49 COMP. GEN. 377 (1969). AFTER A THOROUGH REVIEW OF THE RESPECTIVE ARGUMENTS AND ATLANTIC'S DESCRIPTIVE LITERATURE, WE ARE UNABLE TO CONCLUDE THAT THE AGENCY'S DETERMINATION THAT THE ATLANTIC DESCRIPTIVE DATA DID NOT MEET THE TECHNICAL REQUIREMENTS OF THE PD WAS ERRONEOUS OR ARBITRARY. FURTHERMORE, WE BELIEVE IT IS CLEAR, CONTRARY TO ATLANTIC'S CONTENTION, THAT THE EVALUATION AND CONCLUSIONS WERE BASED UPON A REVIEW OF THE ENTIRE DESCRIPTIVE LITERATURE AND NOT LIMITED TO THOSE PORTIONS REFERRED TO IN ATLANTIC'S CROSS REFERENCE LIST ACCOMPANYING THE BID.

ATLANTIC ALSO CONTENDS THAT THE AVTEL BID WAS NONRESPONSIVE BECAUSE THE DESCRIPTIVE DATA SUBMITTED WITH THAT BID "REFLECTS EIGHT CHARACTERISTICS WHICH ARE EITHER IN DIRECT CONFLICT WITH, OR ARE NOT STATED AS MEETING" THE REQUIREMENTS OF THE PD. ATLANTIC ASSERTS THAT THE AVTEL DATA DESCRIBES A VOLTAGE REGULATOR THAT IS NOT COMPLIANT WITH THE PD; THAT THE AVTEL UPS EQUIPMENT DOES NOT PROVIDE FOR THE REQUIRED AUTOMATIC TRANSFER TO BYPASS; THAT THE EQUIPMENT DOES NOT COMPLY WITH THE "OUTPUT" REQUIREMENTS; THAT THE EQUIPMENT DOES NOT IDENTIFY THE REQUIRED TRANSITION TIME FROM TRANSIENT FREQUENCY TO STABLE FREQUENCY; THAT THE DATA FAILS TO SHOW COMPLIANCE WITH THE "EFFICIENCY" AND "INPUT CURRENT LIMITING" REQUIREMENTS OF PARAGRAPHS 3.2.5 AND 3.2.6; THAT THE AVTEL DATA DOES NOT REFERENCE THE REQUIRED FOUR WIRE OUTLET FOR SUPPLYING COMPUTER SYSTEM C AND DOES NOT IDENTIFY EFFICIENCY OF UPS AT LESS THAN FULL LOAD.

THE ARMY REPORTS THAT CONTRARY TO ATLANTIC'S ASSERTION OF BIAS IN THE EVALUATION, THE DESCRIPTIVE LITERATURE OF AVTEL AND ATLANTIC WERE EVALUATED ON THE SAME BASIS AND AVTEL'S DATA ADEQUATELY AND SUFFICIENTLY ADDRESSED THE PERFORMANCE CHARACTERISTICS SPECIFIED IN THE PD PARAGRAPHS LISTED IN THE DESCRIPTIVE LITERATURE CLAUSE. IN A DETAILED REBUTTAL TO ATLANTIC'S CONTENTIONS IN THIS REGARD, THE ARMY HAS REFERENCED THE PAGES AND SPECIFIC LANGUAGE IN AVTEL'S DESCRIPTIVE LITERATURE WHICH IT CONTENDS ESTABLISHES AVTEL'S RESPONSIVENESS TO VARIOUS PARAGRAPHS OF THE PD CITED BY ATLANTIC. FROM OUR REVIEW OF THIS MATERIAL, WE ARE UNABLE TO CONCLUDE THAT THE ARMY'S CONCLUSION IN THIS REGARD WERE ERRONEOUS OR ARBITRARY. THEREFORE, WE FIND NO MERIT IN THE CONTENTION THAT AVTEL'S BID WAS NONRESPONSIVE.

FINALLY, ATLANTIC EXPRESSES CONCERN OVER THE FACT THAT PRIOR TO AWARD THE CONTRACTING OFFICER CONTACTED THAT FIRM AND ASKED FOR CONFIRMATION OF ITS BID PRICE. APPARENTLY, IT IS ATLANTIC'S VIEW THAT THE AGENCY VIOLATED ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-406.1, BY ASKING FOR PRICE VERIFICATION WITHOUT POINTING OUT A SPECIFIC SUSPECTED ERROR IN ATLANTIC'S BID. IT MUST BE NOTED IN THIS REGARD THAT THE DEFICIENCIES IN THE ATLANTIC DATA WHICH AFFECTED THE BID'S RESPONSIVENESS ARE NOT "MISTAKES IN BIDS" WHICH MAY BE CORRECTED UNDER THE PROVISIONS OF ASPR 2-406. OUR OFFICE HAS OFTEN HELD THAT A NONRESPONSIVE BID MAY NOT BE CONSIDERED FOR CORRECTION REGARDLESS OF THE CIRCUMSTANCES SINCE TO PERMIT A BIDDER TO MAKE ITS BID RESPONSIVE BY ALTERATION OF ITS BID AFTER BID OPENING WOULD BE TANTAMOUNT TO PERMITTING THE SUBMISSION OF A NEW OFFER. SEE 40 COMP. GEN. 132 (1960).

FOR THE REASONS STATED, WE FIND NO LEGAL BASIS FOR OBJECTING TO THE ACTIONS OF THE PURCHASING AGENCY, AND THE PROTEST IS THEREFORE DENIED.