B-180310, APR 22, 1974

B-180310: Apr 22, 1974

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THERE IS NO BASIS TO CONCLUDE THAT OTHER OFFEROR WAS PREJUDICED THEREBY SINCE CORRECTION OF MINOR OVERSIGHTS DID NOT REPRESENT MODIFICATION OR DEVIATION OF ITS OFFER. BEST AND FINAL OFFERS WERE RECEIVED FROM SYCOR INC. IT WAS ALSO DETERMINED THAT LINOLEX WAS THE APPARENT LOW OFFEROR WITH RESPECT TO PURCHASE. SYCOR WAS FOUND TO BE SECOND LOW. LINOLEX WAS ADVISED THAT IT WAS THE APPARENT LOW BIDDER AND THAT IT MUST BE READY WITHIN 10 DAYS TO PRESENT A "LIVE-TEST DEMONSTRATION" PURSUANT TO PARAGRAPH 2C-2 OF THE RFP. EQUIPMENT NECESSARY TO CONDUCT THE DEMONSTRATION WILL BE PROVIDED AT NO COST TO THE GOVERNMENT. FAILURE TO DO SO WILL RESULT IN THE PROPOSAL BEING REJECTED AS NONRESPONSIVE. ***" THE AGENCY STATES THAT: "*** THE LIVE TEST DEMONSTRATION BEGAN ON DECEMBER 3.

B-180310, APR 22, 1974

WHERE GSA GAVE APPARENT LOW OFFEROR FOR ELECTRONIC DATA EQUIPMENT A FEW DAYS TO CORRECT MINOR OVERSIGHTS DURING LIVE DEMONSTRATION TEST REQUIRED BY RFP, THERE IS NO BASIS TO CONCLUDE THAT OTHER OFFEROR WAS PREJUDICED THEREBY SINCE CORRECTION OF MINOR OVERSIGHTS DID NOT REPRESENT MODIFICATION OR DEVIATION OF ITS OFFER.

TO SYCOR INC.:

REQUEST FOR PROPOSALS (RFP) 3FP-AF-N-B35011-6-19-73, ISSUED BY THE FEDERAL SUPPLY SERVICE, REGION 3, GENERAL SERVICES ADMINISTRATION (GSA), ON MAY 17, 1973, SOUGHT OFFERS ON A DEFINITE QUANTITY OF "STAND ALONE DATA ENTRY SYSTEM, INCLUDING VARIOUS TYPES OF TERMINALS, CARD READERS, TAPE DRIVES AND DATA SETS."

BEST AND FINAL OFFERS WERE RECEIVED FROM SYCOR INC., LINOLEX SYSTEMS, INC., AND SANDERS ASSOCIATES, INC., ON NOVEMBER 13, 1973. ALL OFFERORS SUBMITTED A PRICE FOR (1) A 5-YEAR LEASE OF THE EQUIPMENT, AND (2) OUTRIGHT PURCHASE (WITH THE OFFEROR PROVIDING MAINTENANCE FOR 5 YEARS).

AFTER EVALUATION, GSA DETERMINED TO PURCHASE THE SYSTEM RATHER THAN LEASE. IT WAS ALSO DETERMINED THAT LINOLEX WAS THE APPARENT LOW OFFEROR WITH RESPECT TO PURCHASE. SYCOR WAS FOUND TO BE SECOND LOW.

BY A LETTER DATED NOVEMBER 21, 1973, LINOLEX WAS ADVISED THAT IT WAS THE APPARENT LOW BIDDER AND THAT IT MUST BE READY WITHIN 10 DAYS TO PRESENT A "LIVE-TEST DEMONSTRATION" PURSUANT TO PARAGRAPH 2C-2 OF THE RFP, WHICH, AS AMENDED, STATES:

"THE GOVERNMENT MAY REQUIRE LIVE TEST DEMONSTRATION OF THE PROPOSED EQUIPMENT DURING THE EVALUATION PERIOD. THE GOVERNMENT SHALL REQUIRE THE OFFEROR TO BE PREPARED TO GIVE A LIVE TEST DEMONSTRATION, IF REQUIRED, WITHIN 10 DAYS AFTER NOTIFICATION BY THE GOVERNMENT. THE OFFEROR SHALL NOTIFY THE GOVERNMENT, IN WRITING, AS TO THE TIME AND PLACE FOR THIS DEMONSTRATION. PERSONNEL, SUPPLIES, AND EQUIPMENT NECESSARY TO CONDUCT THE DEMONSTRATION WILL BE PROVIDED AT NO COST TO THE GOVERNMENT. THIS DEMONSTRATION SHALL VALIDATE THE PROPOSAL. FAILURE TO DO SO WILL RESULT IN THE PROPOSAL BEING REJECTED AS NONRESPONSIVE. ***"

THE AGENCY STATES THAT:

"*** THE LIVE TEST DEMONSTRATION BEGAN ON DECEMBER 3, 1973. AFTER SOME INITIAL MINOR ADJUSTMENTS DUE TO OVERSIGHT, LINOLEX SUCCESSFULLY DEMONSTRATED THAT ITS SYSTEM WOULD FUNCTION AS REQUIRED BY THE RFP AND AS PROPOSED. ACCORDINGLY, ON DECEMBER 19, 1973, THE CONTRACT (GS-03S 41098) WAS AWARDED TO LINOLEX. ***"

COUNSEL FOR SYCOR ASSERTS THAT SINCE LINOLEX "FAILED" THE INITIAL LIVE TEST DEMONSTRATION, LINOLEX'S PROPOSAL WAS RENDERED "NONRESPONSIVE." FURTHER ASSERTS THAT THE RFP DOES NOT INDICATE THAT A SECOND LIVE TEST DEMONSTRATION WOULD BE PERMITTED AND THAT BY ALLOWING LINOLEX A SECOND TEST GSA IS ALLOWING THAT FIRM TO PRESENT A NEW TECHNICAL PROPOSAL. MOREOVER, COUNSEL CONTENDS THAT THIS ACTION WAS PREJUDICIAL TO SYCOR IN THE FACE OF GSA'S PREVIOUS DENIAL OF SYCOR'S ATTEMPTED DOWNWARD REVISION (SUBSEQUENT TO RECEIPT OF BEST AND FINAL OFFERS) OF ITS PRICE.

GSA, WHILE INDICATING THAT THE REFERENCE IN PARAGRAPH 2C-2 TO RESPONSIVENESS (A TERM MORE APPROPRIATE TO FORMAL ADVERTISING, 47 COMP. GEN. 279 (1967)) WAS UNFORTUNATE, ADVISES THAT LINOLEX DID NOT FAIL THE LIVE TEST DEMONSTRATION. THE AGENCY FURTHER STATES THAT THE PHASED TESTING GAVE LINOLEX THE OPPORTUNITY TO DEMONSTRATE ONLY WHAT IT HAD ALREADY PROPOSED AND NOTHING MORE.

THE AGENCY SUMMARIZES THE LIVE DEMONSTRATION TESTING PROCEDURE AS FOLLOWS:

"DURING THE TEST, OUR TECHNICAL EVALUATION TEAM NOTICED THAT LINOLEX WAS DEMONSTRATING A NINE-TRACT DRIVE RATHER THAN A SEVEN-TRACK DRIVE COMPUTER TAPE AS REQUIRED BY THE RFP AND AS PROPOSED BY LINOLEX ***.LINOLEX PROMPTLY ADMITTED THAT IT WAS MERELY AN OVERSIGHT ON ITS PART, AND THAT IT HAD A SEVEN-TRACK DRIVE COMPUTER TAPE ON HAND WITH ALL NECESSARY SOFTWARE FOR ITS OPERATION. ALSO, DURING THE LIVE DEMONSTRATION TEST, IT APPEARED TO THE TECHNICAL EVALUATION TEAM THAT THE 'DEGEN' PROGRAM DID NOT PROVIDE FULL EDIT CHECK AS REQUIRED BY THE RFP ***. IN VIEW OF THE FACT THAT LINOLEX HAD PROPOSED A FORMAT GENERATION SOFTWARE PROGRAM NAMED 'DEGEN,' WHICH PROVIDES FOR FULL EDIT CAPACITIES, AND IT HAD ALSO PROPOSED A SOFTWARE PROGRAM CALLED THE 'KEYPUNCH SIMULATOR,' THE GSA EVALUATION TEAM REMINDED LINOLEX THAT IT HAD NOT INCORPORATED THE CARD READER SUPPORT INTO THE 'DEGEN' AS PROPOSED ***. LINOLEX INDICATED THAT IT HAD OVERLOOKED THIS PARTICULAR PART OF THE PROPOSAL WHICH IT HAD ALREADY EXPLAINED BY ITS LETTER OF AUGUST 28, 1973 ***, AND IT WOULD MERELY BE A SIMPLE PROGRAMMING TASK TO CHANGE 'DEGEN' TO PROVIDE FOR CARD READER SUPPORT. LINOLEX WAS GIVEN A FEW DAYS TO CORRECT THESE MINOR OVERSIGHTS. ON DECEMBER 15, 1973, THE DEMONSTRATION WAS CONCLUDED WITH ALL ASPECTS OF THE SYSTEM OPERATING AS REQUIRED BY THE RFP AND AS PROPOSED BY LINOLEX. ***"

IN VIEW OF THESE FACTS WHICH ARE UNCONTROVERTED, WE CONCUR WITH THE AGENCY'S POSITION AND THE VIEWS OF COUNSEL FOR LINOLEX THAT THE DETERMINATION BY GSA TO CONTINUE THE INITIAL DEMONSTRATION DID NOT ALLOW LINOLEX TO MODIFY OR DEVIATE FROM WHAT WAS PROPOSED IN ITS OFFER. ACCORDINGLY, THE PROTEST IS DENIED.