B-180252(1), MAY 22, 1974

B-180252(1): May 22, 1974

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NAVY'S REJECTION OF PROPOSAL TO FURNISH 10 KW INVERTERS AS OUTSIDE COMPETITIVE RANGE BECAUSE OF VARIOUS TECHNICAL DEFICIENCIES IS SUPPORTED BY THE RECORD. WAS ISSUED BY THE NAVAL SHIP SYSTEMS COMMAND ON APRIL 23. TELEDYNE WAS ASKED TO PROVIDE CERTAIN ADDITIONAL AND CLARIFYING INFORMATION IN CONNECTION WITH ITS PROPOSAL. THE NAVY INFORMED TELEDYNE THAT ITS PROPOSAL WAS OUTSIDE THE COMPETITIVE RANGE. A DETAILED BREAKDOWN OF TECHNICAL EVALUATION FACTORS AND AN ELABORATION OF THE DATA RIGHTS DESIRED WERE ALSO PROVIDED. TELEDYNE'S PROPOSAL RECEIVED A LOW SCORE AND WAS ELIMINATED FROM THE COMPETITIVE RANGE BECAUSE OF SEVERAL TECHNICAL DEFICIENCIES AND BECAUSE IT OFFERED ONLY LIMITED RIGHTS IN THE REQUIRED DATA.

B-180252(1), MAY 22, 1974

NAVY'S REJECTION OF PROPOSAL TO FURNISH 10 KW INVERTERS AS OUTSIDE COMPETITIVE RANGE BECAUSE OF VARIOUS TECHNICAL DEFICIENCIES IS SUPPORTED BY THE RECORD, ALTHOUGH NAVY DID NOT FOLLOW ASPR 3-805.3(A) IN THAT IT FAILED TO POINT OUT TWO OF THE DEFICIENCIES TO PROTESTER BEFORE REJECTING PROPOSAL. ALSO NAVY PROPERLY EVALUATED PROPOSAL WHICH OFFERED ONLY LIMITED RIGHTS IN DATA TO GOVERNMENT IN ACCORDANCE WITH EVALUATION FACTOR CALLING FOR UNLIMITED RIGHTS IN DATA.

TO TELEDYNE INET:

REQUEST FOR PROPOSALS (RFP) N00024-73-R-7536(S), CALLING FOR OFFERS TO DEVELOP AND FURNISH TWO 10 KW STATIC INVERTERS AND RELATED ITEMS AND DATA, WAS ISSUED BY THE NAVAL SHIP SYSTEMS COMMAND ON APRIL 23, 1973. TELEDYNE INET (TELEDYNE) SUBMITTED A PROPOSAL IN RESPONSE TO THE RFP. BY LETTER OF SEPTEMBER 21, 1973, TELEDYNE WAS ASKED TO PROVIDE CERTAIN ADDITIONAL AND CLARIFYING INFORMATION IN CONNECTION WITH ITS PROPOSAL. IN RESPONSE, TELEDYNE SUBMITTED BOTH A REVISED DESIGN PROPOSAL ALONG WITH AN ALTERNATE DESIGN. BY LETTER OF NOVEMBER 29, 1973, THE NAVY INFORMED TELEDYNE THAT ITS PROPOSAL WAS OUTSIDE THE COMPETITIVE RANGE, AND TELEDYNE THEN PROTESTED AGAINST THE REJECTION OF ITS PROPOSAL.

THE RFP IDENTIFIED THE FOLLOWING MAJOR EVALUATION FACTORS TO BE USED FOR SELECTION OF THE OFFER MOST FAVORABLE TO THE GOVERNMENT:

A. THE TECHNICAL PROPOSAL

B. THE WILLINGNESS OF THE OFFEROR TO PROVIDE UNLIMITED RIGHTS TO THE DATA REQUIRED.

C. THE COST PROPOSAL.

A DETAILED BREAKDOWN OF TECHNICAL EVALUATION FACTORS AND AN ELABORATION OF THE DATA RIGHTS DESIRED WERE ALSO PROVIDED.

TELEDYNE'S PROPOSAL RECEIVED A LOW SCORE AND WAS ELIMINATED FROM THE COMPETITIVE RANGE BECAUSE OF SEVERAL TECHNICAL DEFICIENCIES AND BECAUSE IT OFFERED ONLY LIMITED RIGHTS IN THE REQUIRED DATA. TELEDYNE ASSERTS, HOWEVER, THAT ITS PROPOSAL WAS TECHNICALLY ACCEPTABLE AND THAT IT COULD PROPERLY RESTRICT THE DATA RIGHTS BECAUSE THE DATA PERTAINED TO PROPRIETARY ITEMS WHICH IT DEVELOPED AT ITS OWN EXPENSE.

THE NAVY REJECTED TELEDYNE'S REVISED PROPOSAL FOR THE FOLLOWING TECHNICAL REASONS:

A. "THE OPEN-LOOP IMPEDANCE OF THE PROPOSED INVERTER, WHICH IS A FUNCTION OF THE OUTPUT VOLTAGE TRANSIENT, IS NOT DISCUSSED."

B. THE CONTROL PANEL IS PART OF THE FRONT DOOR INSTEAD OF BEING MOUNTED ON ONE OF THE DRAWERS AS REQUIRED BY THE SPECIFICATIONS.

C. THE 5.25 CUBIC FEET VOLUME OF THE BENCH TESTER EXCEEDS THE SPECIFIED MAXIMUM OF 4 CUBIC FEET.

D. THE REVISED DESIGN DID NOT INCLUDE MEAN TIME BETWEEN FAILURE (MTBF) DATA.

E. THE CONSTRUCTION OF THE INVERTER IS BY ASSEMBLY, WHILE THE SPECIFICATIONS REQUIRE INVERTER CABINETS TO BE DESIGNED FOR FRONT ACCESS AND MAINTENANCE WITH PULL-OUT, PLUG-IN DRAWERS.

TELEDYNE'S ALTERNATE DESIGN, WHICH WAS BASED ON THE DESIGN IT ORIGINALLY SUBMITTED, WAS ALSO REJECTED AS CONTRARY TO THE SPECIFICATION REQUIREMENT PROHIBITING THE USE OF TRANSISTORS.

TELEDYNE ADMITS THAT ITS PROPOSAL INDICATED FRONT PANEL MOUNTING OF CONTROL EQUIPMENT, BUT ASSERTS THAT THE NAVY'S INSISTENCE ON MOUNTING THE EQUIPMENT ON ONE OF THE DRAWERS IS IMPRACTICAL. IT FURTHER ASSERTS THAT ALLEGED DEFICIENCIES C. AND E. DO NOT EXIST AND ARE MERELY THE RESULT OF A MISINTERPRETATION OF ITS PROPOSAL. TELEDYNE ALSO CLAIMS THAT IT DID PROVIDE THE NAVY WITH INFORMATION RELEVANT TO DEFICIENCY A., THAT THE SPECIFICATIONS DID NOT REQUIRE MTBF DATA IN THE PROPOSAL, AND THAT THE RFP DID PERMIT THE SUBMISSION OF ALTERNATE DESIGN PROPOSALS WHICH THE NAVY WAS OBLIGATED TO CONSIDER FULLY.

WE THINK IT IS CLEAR THAT SOME OF THESE DEFICIENCIES STEMMED FROM TELEDYNE'S FAILURE TO INCLUDE SUFFICIENT DETAILED INFORMATION IN ITS PROPOSAL. PARAGRAPH 3.3.8.4 OF THE SPECIFICATIONS REQUIRED CONTROL EQUIPMENT TO BE "MOUNTED ON THE FRONT PANEL OF ONE OF THE DRAWERS." THE NAVY REPORTS THAT TELEDYNE WAS ASKED TO CLARIFY ITS DEVIATION FROM THIS REQUIREMENT, BUT THAT TELEDYNE'S REVISED PROPOSAL DID NOT EXPLAIN ITS APPROACH AND DID NOT PROVIDE REASONS WHY IT WAS IMPRACTICAL TO ADHERE TO THE SPECIFICATION. WITH RESPECT TO THE VOLUME OF THE BENCH TESTER, THE NAVY REPORTS THAT TELEDYNE'S REVISED PROPOSAL STATED DIMENSIONS WHICH SUGGESTED A DEVIATION FROM THE 4 CUBIC FEET MAXIMUM VOLUME LIMITATION. ALTHOUGH TELEDYNE STATES THAT THE NAVY ASSUMED RECTANGULAR DIMENSIONS, WHEN IN FACT IT WAS OFFERING A SLOPE FRONT AND A VOLUME OF 3.4 CUBIC FEET, THE NAVY REPORTS THAT TELEDYNE'S REVISED PROPOSAL DID NOT INCLUDE ANY SKETCH OR OTHER INFORMATION TO INDICATE A SLOPE FRONT. WITH RESPECT TO THE OPEN LOOP IMPEDANCE OF THE INVERTER, TELEDYNE DOES NOT CLAIM THAT THIS INFORMATION WAS IN ITS ORIGINAL PROPOSAL BUT INSTEAD ASSERTS THAT THE INFORMATION WAS PROVIDED TO A NAVY PROJECT ENGINEER IN JUNE 1973, AND THAT THIS INFORMATION WAS REFERRED TO IN ITS REVISED PROPOSAL. THE NAVY POINTS OUT, HOWEVER, THAT THE INFORMATION CONCERNED EQUIPMENT FOR DD 963 VESSELS AND WAS NOT DIRECTLY RELATED TO THE SUBJECT RFP. IT FURTHER STATES THAT TELEDYNE'S MERE STATEMENT IN ITS REVISED PROPOSAL THAT THE DD 963 DATA WAS APPLICABLE TO THE 10 KW INVERTER WAS REGARDED AS INADEQUATE, BOTH FOR TECHNICAL REASONS AND BECAUSE THE RFP PROVIDED THAT DATA PREVIOUSLY SUBMITTED "MAY NOT BE CONSIDERED BY THE GOVERNMENT" AND "ANY SUCH DATA SHOULD NOT BE RELIED UPON OR INCORPORATED IN THE TECHNICAL PROPOSAL BY REFERENCE." THUS, THE TELEDYNE PROPOSAL WAS REGARDED AS DEFICIENT ON THIS POINT BECAUSE IN RESPONSE TO THE NAVY'S REQUEST FOR THE MISSING DATA, TELEDYNE "DID NOT PROVIDE CALCULATIONS, ANALYSIS OR ADEQUATE TEST DATA TO SHOW HOW

SIMILARLY, TELEDYNE FAILED TO PROVIDE SUFFICIENT MTBF DATA, EVEN THEIR PROPOSED DESIGN WOULD MEET THE TRANSIENT VOLTAGE REQUIREMENT."

SIMILARLY, TELEDYNE FAILED TO PROVIDE SUFFICIENT MTBF DATA, EVEN THOUGH THE RFP LISTED MTBF AS AN EVALUATION SUB-FACTOR. ALTHOUGH TELEDYNE ASSERTS THAT DETAILED MTBF DATA WAS NOT REQUIRED WITH THE PROPOSAL BECAUSE SUCH DATA WAS REQUIRED TO BE FURNISHED AFTER AWARD AS PART OF THE DATA PACKAGES CALLED FOR BY THE CONTRACT, WE NOTE THAT TELEDYNE DID PROVIDE SOME DATA WITH ITS INITIAL PROPOSAL, BUT DID NOT FURNISH ANY WITH ITS REVISED PROPOSAL. WE THINK THE RFP, WHICH CALLED FOR TECHNICAL DISCUSSIONS OF METHODS AND APPROACHES PROPOSED, REQUIRED SOMETHING MORE IN THE WAY OF MTBF DATA THAN TELEDYNE'S STATEMENT THAT THE ESTIMATED MTBF "IS IN EXCESS OF THE REQUIRED 5,000 HOURS." ACCORDINGLY, WE BELIEVE THAT THE NAVY PROPERLY CONSIDERED THESE VARIOUS OMISSIONS AS DEFECTS IN THE TELEDYNE PROPOSAL.

PARAGRAPH 3.3.3.2 OF THE SPECIFICATIONS REQUIRED THAT "EACH CABINET OF THE INVERTER SHALL BE DESIGNED FOR FRONT ACCESS AND MAINTENANCE WITH PULL- OUT, PLUG-IN DRAWERS." THE NAVY INTERPRETED TELEDYNE'S PROPOSAL AS OFFERING ASSEMBLIES RATHER THAN REMOVABLE DRAWERS. TELEDYNE ASSERTS THAT ITS ASSEMBLIES ARE DRAWERS, AND THAT IT COULD HAVE PUT TRANSFORMERS AND CAPACITORS IN DRAWERS "HAD THE NAVY INSISTED UPON THAT AS PART OF THE PROPOSAL STAGE, BUT IT DID NOT." OUR RECORD DOES NOT PROVIDE A SUFFICIENT BASIS FOR RESOLUTION OF THIS ISSUE; HOWEVER, WE DO NOT BELIEVE THAT SUCH RESOLUTION IS NECESSARY FOR DISPOSITION OF THIS PROTEST BOTH IN VIEW OF THE ABOVE AND WHAT FOLLOWS.

THE NAVY REFUSED TO EVALUATE TELEDYNE'S ALTERNATE DESIGN BECAUSE IT WAS BASED ON USING TRANSISTORS, CONTRARY TO SPECIFICATION PARAGRAPH 3.4.4.1 WHICH REQUIRED THE USE OF THYRISTORS. TELEDYNE, HOWEVER, POINTS TO A SOLICITATION PROVISION WHICH PROVIDED THAT ALTERNATE OFFERS COULD BE SUBMITTED, AND FURTHER POINTS OUT SEVERAL ADVANTAGES OF USING TRANSISTORS. IT CLAIMS THAT THE NAVY'S REFUSAL TO EVALUATE THE TRANSISTORIZED DESIGN "HAVING SO MUCH MERIT IS A VIOLATION" OF THE SOLICITATION PROVISION PERMITTING ALTERNATE OFFERS. WE DO NOT AGREE. THINK THIS RFP PROVISION INDICATED ONLY THAT THE NAVY WOULD CONSIDER ALTERNATE PROPOSALS TO SEE IF THEY WERE ADVANTAGEOUS. HERE THE NAVY REPORTS THAT IT REVIEWED THE TELEDYNE ALTERNATE PROPOSAL BUT DIDN'T EVALUATE IT BECAUSE IT DID NOT MEET ITS REQUIREMENTS FOR UTILIZING THYRISTORS. WE HAVE NO REASON TO QUESTION THE NAVY'S POSITION IN THIS REGARD.

TELEDYNE ALSO ARGUES THAT IT WAS IMPROPER FOR THE NAVY TO REJECT ITS PROPOSAL ON GROUNDS OTHER THAN THOSE CALLED TO ITS ATTENTION IN THE NAVY'S LETTER OF SEPTEMBER 21, 1973. TELEDYNE SPECIFICALLY REFERS TO THE DEFICIENCIES CONCERNING THE VOLUME OF THE BENCH TESTER AND THE CONSTRUCTION OF THE INVERTER BY ASSEMBLY RATHER THAN DRAWERS, WHICH WERE NOT INCLUDED AMONG THOSE ITEMS FOR WHICH CLARIFICATION WAS REQUESTED. THE NAVY STATES THAT SINCE TELEDYNE'S ORIGINAL PROPOSAL WAS BASED ON USING TRANSISTORS AND WOULD NOT BE ACCEPTABLE, ITS SEPTEMBER 21, 1973 LETTER "ONLY CLARIFIED THIS POINT BY INDICATING SOME OF THE MISSING ITEMS AND ITEMS REQUIRING CLARIFICATION. IN VIEW OF THE MANY ITEMS REQUIRING CLARIFICATION, IT WAS PRESUMED THAT TELEDYNE WOULD REVIEW ALL OF THE REQUIREMENTS OF THE *** SPECIFICATION IN DETAIL AND PROVIDE A REVISED COMPREHENSIVE PROPOSAL." THE NAVY FURTHER STATES THAT ALTHOUGH IT TRIED TO BE OF ASSISTANCE, BY QUESTIONING SOME AREAS OF APPARENT MISUNDERSTANDING, IT COULD NOT POSSIBLY ANTICIPATE ALL QUESTIONS PERTAINING TO THE REQUIREMENTS OF THE INVERTER SPECIFICATION."

ALTHOUGH TELEDYNE'S PROPOSAL WAS NEVER DETERMINED TO BE WITHIN THE COMPETITIVE RANGE, WE THINK NAVY'S LETTER OF SEPTEMBER 21, 1973, REQUESTING THE OFFEROR TO PROVIDE ADDITIONAL AND CLARIFYING INFORMATION, CONSTITUTED DISCUSSIONS WITHIN THE MEANING OF ASPR 3-805.3 AS REVISED BY DEFENSE PROCUREMENT CIRCULAR #110. WE RECOGNIZE THAT UNDER ASPR 3- 805.2(B), INQUIRIES MAY BE MADE TO AN OFFEROR CONCERNING ITS PROPOSAL AND THAT SUCH INQUIRIES AND RESULTING CLARIFICATIONS FURNISHED BY THE OFFEROR DO NOT CONSTITUTE DISCUSSIONS WITHIN THE MEANING OF ASPR 3-805.3. HOWEVER, ASPR 3-805.2(B) ALSO PROVIDES THAT THE PURPOSE OF SUCH INQUIRIES SHALL BE TO ELIMINATE "MINOR UNCERTAINTIES OR IRREGULARITIES, SUCH AS DISCUSSED IN 2-405." ASPR 2 405 IN TURN DEALS WITH "MINOR INFORMALITIES OR IRREGULARITIES IN BIDS." NAVY'S SEPTEMBER 21 LETTER LISTED 14 ITEMS IN TELEDYNE'S PROPOSAL WHICH REQUIRED "CLARIFICATION." ITEM 1 OF THIS LETTER, FOR EXAMPLE, NOTED THAT "THE USE OF TRANSISTORIZED INVERTER POWER CIRCUIT IS NOT ACCEPTABLE AS PER NAVY SPECIFICATION ***." ITEM 4 POINTED OUT THAT THE VOLTAGE REGULATION SHOULD BE 0.5% AND NOT 1% AS SHOWN IN TELEDYNE'S PROPOSAL. SIMILAR COMMENTS WERE FURNISHED AS TO OTHER ASPECTS OF THE TELEDYNE PROPOSAL. IN A COVER LETTER THE NAVY INSTRUCTED TELEDYNE THAT DETAILED ANSWERS AS WELL AS THEIR EFFECT ON COST SHOULD BE FURNISHED. AS PREVIOUSLY STATED, TELEDYNE'S REVISED PROPOSAL SUBMITTED IN RESPONSE TO THIS LETTER INCLUDED BOTH A REVISED DESIGN PROPOSAL ALONG WITH AN ALTERNATE DESIGN. IN OUR OPINION THE SEPTEMBER 21 LETTER DID NOT DEAL ONLY WITH "MINOR UNCERTAINTIES OR IRREGULARITIES" IN TELEDYNE'S PROPOSAL. WE BELIEVE DISCUSSIONS WERE CONDUCTED WITH THE OFFEROR.

ASPR 3-805.3(A), PROVIDES THAT ALL OFFERORS SELECTED TO PARTICIPATE IN DISCUSSIONS "SHALL BE ADVISED OF DEFICIENCIES IN THEIR PROPOSALS AND SHALL BE OFFERED A REASONABLE OPPORTUNITY TO CORRECT OR RESOLVE THE DEFICIENCIES***. A DEFICIENCY IS DEFINED AS THAT PART OF AN OFFEROR'S PROPOSAL WHICH WOULD NOT SATISFY THE GOVERNMENT'S REQUIREMENTS."

IN VIEW OF THIS PROVISION, WE THINK THAT ONCE THE NAVY OPENED DISCUSSIONS WITH TELEDYNE IT WAS REQUIRED TO POINT OUT ALL THE DEFICIENCIES IN TELEDYNE'S PROPOSAL BEFORE IT COULD REJECT THAT PROPOSAL. HOWEVER, IT DOES NOT APPEAR THAT THE NAVY'S FAILURE TO DO SO HAD A SIGNIFICANT EFFECT ON THE ULTIMATE EVALUATION OF TELEDYNE'S PROPOSAL SINCE THE RECORD REFLECTS SEVERAL GROUNDS OTHER THAN THESE TWO ADDITIONAL DEFICIENCIES WHICH RESULTED IN THE ELIMINATION OF TELEDYNE FROM THE COMPETITIVE RANGE.

THE RFP INFORMED PROSPECTIVE OFFERORS THAT THE GOVERNMENT WISHED TO ACQUIRE UNLIMITED RIGHTS IN DATA "IN ORDER TO PROVIDE DIRECTLY FOR THE DESIGN ENGINEERING, MANUFACTURING AND QUALITY SUPPORT INFORMATION NECESSARY FOR THE PRODUCTION OF ANY EQUIPMENT OR PART THEREOF DELIVERED UNDER THIS CONTRACT WITHOUT ADDITIONAL DESIGN EFFORT OR RECOURSE TO THE ORIGINAL DESIGN ACTIVITY." THE RFP ALSO PROVIDED THAT THE GOVERNMENT "DESIRES TO CONSIDER" ACQUIRING UNLIMITED RIGHTS IN DATA SO AS TO MAKE THE DATA AVAILABLE FOR FUTURE COMPETITIVE PROCUREMENTS. THE RFP RECOGNIZED THAT OFFERORS HAD A RIGHT TO LIMIT THE GOVERNMENT'S DATA RIGHTS IF THE DATA PERTAINED TO ITEMS DEVELOPED AT PRIVATE EXPENSE (SEE ASPR 9- 202.2(B)), BUT NONETHELESS CLEARLY SPECIFIED THAT THE WILLINGNESS OF AN OFFEROR TO PROVIDE UNLIMITED RIGHTS IN DATA WAS THE SECOND MOST IMPORTANT EVALUATION FACTOR FOR DETERMINING AWARD. TELEDYNE DID NOT OBJECT, PRIOR TO THE DATE FOR RECEIPT OF PROPOSALS, TO THIS EVALUATION FACTOR, BUT INSTEAD SUBMITTED A PROPOSAL OFFERING THE GOVERNMENT ONLY LIMITED DATA RIGHTS. UNDER THESE CIRCUMSTANCES, WE FAIL TO SEE WHY EVALUATION OF TELEDYNE'S PROPOSAL IN ACCORDANCE WITH THE SPECIFIED EVALUATION FACTOR WOULD BE IMPROPER.

FOR THE FOREGOING REASONS, THE PROTEST IS DENIED.