B-180606, AUG 20, 1974

B-180606: Aug 20, 1974

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SINCE DETERMINATION WHETHER PROPOSAL IS TECHNICALLY ACCEPTABLE IS MATTER OF ADMINISTRATIVE JUDGEMNT WHICH WILL NOT BE DISTURBED ABSENT CLEAR SHOWING OF ABUSE. RECORD FAILS TO SUPPORT CONTENTION THAT TESTING PROCEDURES WERE UNFAIR. ANY POSSIBLE COST ADVANTAGE TO POTENTIAL USERS OF SYSTEM WAS NOT DETERMINATIVE FACTOR SINCE TECHNICAL PROPOSAL WAS UNACCEPTABLE. 2. PROTEST AFTER EVALUATION AND SELECTION DECISION THAT SPECIFICATIONS FOR LANDING SYSTEM DID NOT REFLECT USER NEEDS IS NOT FOR CONSIDERATION ON MERITS BECAUSE UNDER 4 C.F.R. 20.2(A). PROTEST BASED UPON ALLEGED IMPROPRIETIES IN SOLICITATION WHICH ARE APPARENT PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS MUST BE FILED PRIOR THERETO. WAS ISSUED BY THE FEDERAL AVIATION ADMINISTRATION.

B-180606, AUG 20, 1974

1. PROPOSAL TO SUPPLY COMPLETE TECHNICAL AND ECONOMIC DATA PACKAGE FOR INTERIM STANDARD MICROWAVE LANDING SYSTEM PROPERLY REJECTED AS NOT WITHIN COMPETITIVE RANGE WHERE FLIGHT TESTING BY FAA SHOWED THAT OFFERED LANDING SYSTEM WOULD NOT MEET PERFORMANCE SPECIFICATIONS, SINCE DETERMINATION WHETHER PROPOSAL IS TECHNICALLY ACCEPTABLE IS MATTER OF ADMINISTRATIVE JUDGEMNT WHICH WILL NOT BE DISTURBED ABSENT CLEAR SHOWING OF ABUSE. FURTHERMORE, RECORD FAILS TO SUPPORT CONTENTION THAT TESTING PROCEDURES WERE UNFAIR. MOREOVER, ANY POSSIBLE COST ADVANTAGE TO POTENTIAL USERS OF SYSTEM WAS NOT DETERMINATIVE FACTOR SINCE TECHNICAL PROPOSAL WAS UNACCEPTABLE. 2. PROTEST AFTER EVALUATION AND SELECTION DECISION THAT SPECIFICATIONS FOR LANDING SYSTEM DID NOT REFLECT USER NEEDS IS NOT FOR CONSIDERATION ON MERITS BECAUSE UNDER 4 C.F.R. 20.2(A), GAO BID PROTEST REGULATIONS, PROTEST BASED UPON ALLEGED IMPROPRIETIES IN SOLICITATION WHICH ARE APPARENT PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS MUST BE FILED PRIOR THERETO.

THE SINGER COMPANY - KEARFOTT DIVISION:

ON MAY 30, 1973, REQUEST FOR PROPOSALS (RFP) WA5S-3-0942, WAS ISSUED BY THE FEDERAL AVIATION ADMINISTRATION, ATC-AIRPORT FACILITIES SECTION, FOR A COMPLETE TECHNICAL AND ECONOMIC DATA PACKAGE FOR AN INTERIM STANDARD MICROWAVE LANDING SYSTEM (ISMLS) FOR DOMESTIC USE. THE STATEMENT OF WORK PROVIDED THAT FOR A FIXED PRICE OF $25,000, THE SUCCESSFUL OFFEROR WOULD FURNISH A COMPLETE DATA PACKAGE FOR FUTURE GOVERNMENT AND NON-GOVERNMENT PROCUREMENT OF ISMLS GROUND STATIONS AND AIRBORNE EQUIPMENTS, INCLUDING THE NECESSARY LICENSING AGREEMENTS AND ROYALTY PROVISIONS TO ENABLE OTHER MANUFACTURERS TO BUILD AND SELL GROUND AND AIRBORNE SUBSYSTEMS TO THE SAME SPECIFICATIONS AS THOSE OF THE CONTRACTOR SHOULD HIS SYSTEM BECOME THE APPROVED STANDARD. PHASE I OF THE EVALUATION CALLED FOR A REVIEW OF THE TECHNICAL AND ECONOMIC DATA PACKAGE REQUIRED TO ACCOMPLISH THE STATEMENT OF WORK. ONLY OFFERORS WHO SUBMITTED ACCEPTABLE PROPOSALS UNDER PHASE I WOULD BE ELIGIBLE FOR PHASE II, WHICH WAS TO CONSIST OF THE FLIGHT TESTING OF ITS EQUIPMENT IN ACCORDANCE WITH ISMLS OPERATIONAL TESTS (WHICH WERE INCORPORATED INTO THE RFP) TO VERIFY COMPLIANCEE WITH THE TECHNICAL REQUIREMENTS OF THE ISMLS PERFORMANCE SPECIFICATIONS SET FORTH AS EXHIBIT A OF THE RFP. FOR THE PHASE II EVALUATION, OFFERORS WERE REQUIRED TO FURNISH, INSTALL, TUNE-UP, AND MAINTAIN THEIR COMPLETE GROUND SYSTEMS WITHIN SEVEN CALENDAR DAYS AFTER NOTIFICATION BY THE CONTRACTING OFFICER. FURTHER, WITHIN TWO CALENDAR DAYS AFTER NOTIFICATION BY THE CONTRACTING OFFICER, OFFERORS WERE REQUIRED TO PROVIDE ALL AIRBORNE COMPONENTS OF THE ISMLS REQUIRED FOR INSTALLATION AND MAINTENANCE BY THE GOVERNMENT IN A DC- 3 TYPE AIRCRAFT, ALONG WITH AN ENGINEERING CONSULTANT TO FURNISH TECHNICAL ADVICE RELATIVE TO THE INSTALLATION AND MAINTENANCE. THE ISMLS WILL BE USED AT LOCATIONS WHERE A VHF/UHF ILS WILL NOT PERFORM IN AN EFFECTIVE MANNER, OR WHERE THE NEEDS FOR LOW APPROACH SERVICE WOULD BE BETTER MET BY THE USE OF THE INTERIM STANDARD SYSTEM.

THE CLOSING DATE FOR SUBMISSION OF PROPOSALS WAS SET FOR JULY 3, 1973. ON THAT DATE OFFERS WERE RECEIVED FROM BOEING ELECTRONICS, SINGER COMPANY, AND TULL AVIATION COPORATION. ON JULY 23, 1973, THE INITIAL EVALUATION OF THE TECHNICAL PROPOSALS AND ECONOMIC DATA PACKAGES OF THE THREE OFFERORS WAS COMPLETED BY THE TECHNICAL AND ECONOMIC EVALUATION TEAMS. THE EVALUATION NOTED THE SUPERIORITY OF THE SINGER PROPOSAL AND THE EXPECTATION THAT THE PHASE II TESTING WOULD RESULT IN VERIFICATION OF THE FLIGHT DATA SUBMITTED WITH THE PROPOSAL. THEREFORE, THE SOURCE EVALUATION BOARD (SEB) RECOMMENDED TO THE CONTRACTING OFFICER THAT ONLY SINGER BE ALLOWED TO PROCEED WITH PHASE II TESTING. THE CONTRACTING OFFICER, HOWEVER REJECTED THIS RECOMMENDATION AND ELECTED TO AUTHORIZE PHASE II TESTING FOR ALL THREE PROPOSALS SUBMITTED.

SUBSEQUENT TO COMPLETION OF THE TESTING, THE TECHNICAL EVALUATION TEAM CONVENED ON JANUARY 7, 1974, TO COMPLETE EVALUATION OF THE TECHNICAL PROPOSALS BASED ON THE INFORMATION OBTAINED DURING THE PHASE II OPERATIONAL TESTS AND COMPLETED ITS FINAL REPORT ON JANUARY 14, 1974. THE TEAM CONCLUDED THAT THE TULL AVIATION SYSTEM WAS THE ONLY SYSTEM FLIGHT CHECKED WHICH MET ALL FLIGHT REQUIREMENTS AND, THEREFORE, WAS THE ONLY SYSTEM TECHNICALLY ACCEPTABLE. SINGER WAS ADVISED BY LETTER DATED FEBRUARY 1, 1974, THAT IT WAS NOT WITHIN THE TECHNICAL COMPETITIVE RANGE AND HAD BEEN ELIMINATED FROM FURTHER CONSIDERATION. THE LETTER ALSO POINTED OUT THE DEFICIENCIES NOTED IN THE OPERATIONAL TESTING PHASE OF THE EVALUATION WHICH LED TO THE ELIMINATION OF THE SINGER PROPOSAL.

SINGER PROTESTS THE FAA DECISION TO EXCLUDE IT FROM NEGOTIATIONS, BASICALLY ON THE GRAOUND THAT ALLEGED INCONSISTENCIES IN THE EVALUATION METHODS AND PROCEDURES EMPLOYED BY THE FAA RESULTED IN THE DECISION TO NEGOTIATE ONLY WITH TULL. SPECIFICALLY, SINGER CLAIMS THAT THE RFP PRESCRIBED A SEQUENTIAL PROCEDURE FOR INSTALLATION AND CHECK OUT WHICH WAS VIOLATED IN FAVOR OF TULL. IT IS CONTENDED THAT THE EVALUATION OF THE FLIGHT TEST RESULTS WAS IN ERROR. SINGER ALLEGES THAT THE GROUND RULES WERE CHANGED DURING THE COURSE OF THE FLIGHT TEST WHICH SHOWED FAVORITISM TO TULL AND WAS PREJUDICAIAL TO SINGER. IT IS ALSO CONTENDED THAT THE ECONOMIC DATA PACKAGE REQUIRED BY THE RFP WAS NOT PROPERLY CONSIDERED IN THE SELECTION PROCESS. FINALLY, SINGER ALLEGES THAT AN AMENDMENT TO THE SOLICITATION, WHICH HAD THE EFFECT OF LIMITING CONSIDERATION TO A SPLIT SIT SYSTEM, EXCLUDING THE CO-LOCATED SYSTEM, CAUSED THE RFP TO CONFLICT WITH THE REQUIREMENTS OF THE ANTICIPATED USERS (LOCAL AIRPORTS) OF THE ISMLS.

AS EXPLAINED BELOW, WE DO NOT AGREE WITH THE ABOVE CONTENTIONS.

WITH REGARD TO SINGER'S FIRST CONTENTION, THE RECORD SHOWS THAT BY TELECON DATED OCTOBER 9, 1973, THE CONTRACTING OFFICER NOTIFIED SINGER THAT THE PHASE II OPERATIONAL TESTS WERE TO BE PERFORMED, AND THAT IN ACCORDANCE WITH THE SEQUENTIAL TESTING SCHEME SET FORTH IN THE RFP AND RECOUNTED ABOVE, SINGER WAS TO DELIVER ALL AIRBORNE COMPONENTS TO THE NATIONAL AVIATION FACILITIES EXPERIMENTAL CENTER (NAFEC), ATLANTIC CITY, NEW JERSEY, FOR INSTALLATION NO LATER THAN OCTOBER 11, 1973. FURTHER, THE OCTOBER 9, 1973, COMMUNICATION ADVISED THAT THE COMPLETE GROUND SYSTEM SHOULD BE INSALLED AT RICHARD EVELYN BYRD INTERNATIONAL AIRPORT, RICHMOND, VIRGINIA, BY OCTOBER 16, 1973. SIMILARLY, BY TELECON DATED OCTOBER 12, 1973, TULL AVIATION WAS ADVISED TO DELIVER ALL AIRBORNE COMPONENTS TO NAFEC NO LATER THAN OCTOBER 23, 1973, AND DELIVER TO RICHMOND ITS COMPLETE GROUND SYSTEM ON OCTOBER 19, 1973, AND INSTALL WHEN SO ADVISED.

THE SINGER AIRBORNE SYSTEM WAS INSTALLED AT NAFEC ON SCHEDULE. SINGER BEGAN INSTALLATION OF ITS GROUND SYSTEM AT RICHMOND ON OCTOBER 12, 1973, AND NOTIFIED THE FAA THAT IT WAS READY FOR TESTING AT 2:00 P.M. ON OCTOBER 16, 1973. FLIGHT TESTING WAS CONDUCTED EVERY DAY FROM OCTOBER 16, 1973, UNTIL COMPLETION OF THE FLIGHT CHECK ON OCTOBER 21, 1973, INCORPORATING A TOTAL OF 26.1 FLIGHT HOURS.

TULL AVIATION WAS NOTIFIED TO PROCEED WITH INSTALLATION OF ITS GROUND SYSTEM ON OCTOBER 19, 1973, AND TO HAVE AIRBORNE EQUIPMENT AT NAFEC ON OCTOBER 23, 1973, FOR INSTALLATION. IT IS REPORTED THAT THE TWO-DAY REQUIREMENT FOR ARICRAFT INSTALLATION COULD NOT BE APPLIED BECAUSE THE FAA AIRCRAFT WAS STILL FLIGHT CHECKING THE SINGER SYSTEM ON OCTOBER 19, AND DID NOT FINISH UNTIL OCTOBER 21, 1973. THE TULL AVIATION AIRBORNE EQUIPMENT WAS RECEIVED AS REQUESTED AND INSTALLED THE SAME DAY. TULL RELEASED ITS SYSTEM TO FAA PERSONNEL FOR FLIGHT EVALUATION ON OCTOBER 26, 1973. FLIGHT TESTING WAS CONDUCTED EVERY DAY, STARTING ON OCTOBER 27, 1973, UNTIL COMPLETION ON OCTOBER 30, 1973, UTILIZING A TOTAL OF 21.7 FLIGHT HOURS.

ALL TESTING WAS COMPLETED IN OCTOBER 1973, EXCEPT FOR THE RANGE-IN RAIN CHECK WHICH WAS NOT ACCOMPLISHED UNTIL NOVEMBER 28, 1973. THE RFP REQUIRED THAT THE SYSTEM BE ABLE TO PROVIDE ALL OF THE PERFORMANCE PARAMETERS SPECIFIED UNDER CONDITIONS OF LIGHT TO MODERATE RAINFALL OVER THE ENTIRE PATH. THIS TEST WAS PERFORMED SIMULTANEOUSLY ON BOTH THE SINGER AND TULL SYSTEMS. (A TEST WAS MADE ON OCTOBER 27, 1973, WITH BOTH SYSTEMS OPERATING SIMULTANEOUSLY IN ORDER TO INSURE COMPATIBILITY, I.E., LACK OF INTERFERENCE.) IT IS REPORTED THAT THE RAINFALL WHICH DID MATERIALIZE ON THIS DATE--THE FOURTH ATTEMPT TO CONDUCT THIS TEST--WAS ONLY MARGINALLY ADEQUATE AND INSUFFICIENT TO DERIVE COMPLETE RESULTS, FOR AT NO TIME WAS THE ENTIRE COURSE ENCOMPASSED WITH RAIN CONDITIONS. THEREFORE, THE RESULTS OF THE RAIN TEST WERE DISCARDED AND NOT CONSIDERED IN THE FINAL EVALUATION AND SELECTION PROCESS.

BASICALLY, THE SINGER ALLEGATION THAT TULL WAS AFFORDED MORE TIME TO INSTALL ITS SYSTEM IN VIOLATION OF THE TIME PARAMETERS SET FORTH IN THE RFP CONCERNS THE FACT THAT TULL WAS NOTIFIED THAT IT WAS SELECTED FOR TESTING ONE WEEK BEFORE INSTALLATION WAS TO BEGIN, WHILE SINGER SIMULTANEOUSLY RECEIVED ITS SELECTION NOTICE WITH INSTRUCTIONS TO BEGIN INSTALLATION. THIS, ACCORDING TO SINGER, AFFORDED TULL A "GET READY" PERIOD OF ONE WEEK, WHEREAS SINGER WAS DENIED SUCH A PERIOD. HOWEVER, TULL AVIATION WAS NOT PERMITTED TO PROCEED WITH INSTALLATION UNTIL SO ADVISED AND HAD THE SAME 7-DAY PERIOD ONCE ALLOWED TO BEGIN. SINGER ALSO ALLEGES THAT EVEN IF THE ONE WEEK "GET READY" PERIOD IS IGNORED, TULL WAS GIVEN 8 DAYS TO COMPLETE INSTALLATION AS TESTING OF THE TULL SYSTEM DID NOT BEGIN UNTIL OCTOBER 27, 1973. FAA REPORTS, HOWEVER, THAT TULL RELEASED ITS SYSTEM TO FAA FOR FLIGHT EVALUATION ON OCTOBER 26, 1973, WITHIN THE 7-DAY PERIOD ESABLISHED FOR INSTALLATION. ALTHOUGH TULL WAS ADVISED ON OCTOBER 19 TO HAVE ITS AIRBORNE EQUIPMENT AT NAFEC ON THE 23RD FOR INSTALLATION, THE TWO-DAY PERIOD WAS NOT APPLIED BECAUSE FAA WAS STILL FLIGHT TESTING THE SINGER EQUIPMENT AND DID NOT COMPLETE THIS TESTING UNTIL THE 21ST. THE TULL EQUIPMENT WAS RECEIVED AND INSTALLED ON OCTOBER 23, 1973. FROM THE FOREGOING, IT IS OUR VIEW THAT THE TESTING WAS FAIR AND EQUAL, AND ESSENTIALLY IN ACCORDANCE WITH THE SEQUENCE SPECIFIED IN THE RFP. FURTHERMORE, ACCORDING TO SINGER, IT REQUESTED AND WAS PERMITTED TO CONDUCT TESTING OF ITS EQUIPMENT AT RICHMOND IN AUGUST 1973.

WITH REGARD TO THE TECHNICAL EVALUATION, THE DEFICIENCIES RELATING TO THE SINGER LOCALIZER WERE AS FOLLOWS: COURSE ROUGHNESS UP TO 38 UA IN THE AREA ONE MILE TO THRESHOLD (REQUIRED TO BE LESS THAN 22 UA); CLEARANCE ONLY TO 29 DEGREES WITH 12.0 DEGREES WIDTH (REQUIRED TO BE 35 DEGREES); ALIGNMENT MONITOR DID NOT PROPERLY DETECT OUT OF TOLERANCE COURSE SHIFTS AS DEMONSTRATED AND ERRONEOUS COURSE INFORMATION; IDENTIFICATION INTERFERED WITH COURSE INDICATIONS AT LOCATIONS OUTSIDE OF THE COURSE SECTOR; UNABLE TO REDUCE POWER OF RF POWER MONITOR ALARM LIMIT TO DEMONSTRATE USABLE DISTANCE IN THAT CONDITION; UNABLE TO SIMULATE COURSE WIDTH AT BROAD AND NARROW MONITOR ALARM LIMITS TO DEMONSTRATE MONITOR PERFORMANCE AND COURSE BEHAVIOR UNDER THESE CONDITIONS; UNABLE TO DEMONSTRATE 3.0 DEGREES COURSE WIDTH; AND SIGNAL WAS REDUCED 43% DURING RAINFALL (THIS REDUCTION AT 10 DEGREES ON LEFT SIDE OF COURSE PROBABLY WOULD RESULT IN INADEQUATE COVERAGE). THE DEFICIENCIES RELATING TO THE SINGER GLIDE SLOPE WERE: AT AN ANGLE OF 3.0 DEGREES, NARROW AND BROAD ALARM WIDTH MONITORS COULD NOT BE SIMULATED AND RF POWER COULD NOT BE REDUCED TO EVALUATE USABLE DISTANCE ACCORDING TO THE SPECIFICATION; AT AN ANGLE OF 6.0 DEGREES, PERFORMANCE WAS EXCELLENT IN EVERY RESPECT, EXCEPT FOR REDUCING RF POWER TO DEMONSTRATE USABLE DISTANCE.

IN SUPPORT OF ITS CONTENTION THAT THE FAA'S TESTING AND EVALUATION CONTAINED SIGNIFICANT ERRORS, SINGER HAS SUBMITTED A DETAILED DISCUSSION AND REBUTTAL TO EACH AREA OF THE OPERATIONAL TEST RESULTS THAT THE FAA REGARDED AS A DEFICIENCY. SINGER'S DISAGREEMENT WITH FAA AS TO THE VALIDITY OF THE VARIOUS DEFICIENCIES IS BASED UPON ONE OR MORE OF THE FOLLOWING GROUNDS:

1. NOT REQUIREMENTS OF THE RFP.

2. BASED UPON PARTIAL DATA THAT THE FAA GATHERED, WHICH WAS NOT THE THE FINAL DEMONSTRATED DATA.

3. ATTRIBUTABLE TO A LACK OF FAA'S FULL UNDERSTANDING OF MICROWAVE LANDING SYSTEMS AS COMPARED TO VHF/ILS.

4. BASED UPON DATA THAT HAS BEEN WITHHELD FROM SINGER.

5. ATTRIBUTABLE TO SINGER NOT HAVING BEEN GRANTED THE SAME PERIOD OF READINESS FOR FLIGHT TESTING AS GRANTED TO TULL.

6. FAA'S DECISION NOT TO RETEST A PARAMETER.

7. FAA AIRCRAFT INSTALLATION PROBLEMS.

IN SUMMARY, SINGER CONTENDS THAT FAA HAS DATA IN ITS POSSESSION BASED UPON THE TESTING AT RICHMOND WHICH PROVES ITS EQUIPMENT MET THE SPECIFICATIONS; FAA MADE SERIOUS TECHNICAL ERRORS IN TESTING AND IN ANALYSIS AND FAA "REWROTE HISTORY" BETWEEN THE DEBRIEFING AFTER THE TESTING AND THE LETTER SETTING FORTH THE DEFICIENCIES.

FAA HAS RESPONDED IN DETAIL TO THESE CONTENTIONS AND INSISTS THAT ALL PARAMETERS EVALUATED WERE SPECIFIED PERFORMANCE REQUIREMENTS IN EXHIBIT A OF THE RFP. WITH REGARD TO THE CONTENTION THAT ITS DECISION WAS NOT BASED UPON THE FINAL DEMONSTRATED DATA, FAA ASSUMES THAT THIS CHARGE IS BASED UPON ITS FAILURE TO RECHECK THE LOCALIZER. FAA HAS RECOUNTED THE SEQUENCE OF EVENTS CONCERNING TESTING OF THE LOCALIZER, POINTING OUT THE OPPORTUNITES AFFORDED SINGER TO CORRECT THE OUT OF TOLERANCE CONDITION BY BOTH ADJUSTMENT AND CHANGING EQUIPMENT, AND CONTENDS THAT IT WAS JUSTIFIED IN HALTING FURTHER TESTING WHEN THE LOCALIZER WAS STILL OUT FO TOLERANCE ON OCTOBER 27, 1973, AND PROCEEDING WITH THE TESTING OF THE TULL EQUIPMENT. FAA DENIES THE CHARGE CONCERNING ITS PERSONNELS' COMPETENCY, AND POINTS TO BOTH ORAL AND WRITTEN TESTIMONY FROM SINGER PERSONNEL AS TO THE "PROFESSIONALISM, COURTESY AND COMPETENCY DISPLAYED BY THE FAA EVALUATION TEAM DURING THE *** EVALUATION ***." AS TO THE CONTENTION THAT DEFICIENCIES WERE BASED ON DATA WITHHELD FROM SINGER, FAA STATES THAT SINGER WAS DEBRIEFED IN CONSIDERABLE DETAIL AFTER EACH FLIGHT AND PARTICIPATED IN A REVIEW OF ALL RECORDINGS. FURTHER, IT IS REPORTED THAT THE RFP PARAMETERS WERE DISCUSSED IN CONNECTION WITH THE DATA OBTAINED, AND SINGER WAS INFORMED WHETHER THERE WAS ANY DEFICIENCY BY SUCH TERMS AS "OUT OF TOLERANCE" OR "NOT WITHIN THE CRITERIA." FINALLY, IT IS REPORTED THAT, EXCEPT FOR THE RAIN TESTS WHICH WERE NOT COMPLETED, SINGER WAS GIVEN A FULL DEBRIEFING UPON COMPLETION OF THE TESTING. AS TO THE CONTENTION THAT FAA DID NOT RETEST A PARAMETER, THE AGENCY ASSUMES THAT THIS REFERS TO THE LOCALIZER, WHICH HAS PREVIOUSLY BEEN DISCUSSED, AND THE ALIGNMENT MONITOR, WHICH FAA CONTENDS REQUIRED NO FURTHER TESTING BASED ON THE TEST RESULTS. FAA DENIES THAT ANY DEFICIENCIES WERE DUE TO ITS INSTALLATION PROBLEMS. IN THIS CONNECTION , FAA POINTS OUT THAT INSTALLATION OF THE AIRBORNE EQUIPMENT WAS THE RESPONSIBILITY OF THE OFFERORS AND SINGER WAS AFFORDED EVERY OPPORTUNITY TO CORRECT ANY PROBLEMS IN ITS INSTALLATION AND WAS ASSISTED BY FAA PERSONNEL. THE DETERMINATION WHETHER A PROPOSAL IS TECHNICALLY ACCEPTABLE AND WITHIN THE COMPETITIVE RANGE FOR NEGOTIATION IS A MATTER OF ADMINISTRATIVE JUDGMENT, AND WE WILL NOT DISTURB THAT JUDGMENT ABSENT A CLEAR SHOWING THAT THE AGENCY ACTED ARBITRARILY OR UNREASONABLY. 48 COMP. GEN. 314, 317 (1968); B-176077(5), JANUARY 26, 1973. WHILE IT IS CLEAR THAT THERE IS STRONG DISAGREEMENT BETWEEN SINGER AND THE FAA AS TO THE VALIDITY OF THE ALLEGED DEFICIENCIES RAISED BY THE FAA, IT IS GENERALLY NOT THE FUNCTION OF OUR OFFICE TO RESOLVE TECHNICAL DISPUTES OF THIS NATURE. 46 COMP. GEN. 606, 609 (1967), AND B-167508, DECEMBER 8, 1969.

THE RECORD INDICATES THAT A COMPREHENSIVE TECHNICAL EVALUATION OF THE LANDING SYSTEMS WAS MADE THROUGH BOTH THE EXAMINATION OF THE WRITTEN PROPOSALS AND THROUGH THE USE OF OPERATION TESTS IN ACCORDANCE WITH THE REQUIREMENTS AND CRITERIA SET FORTH IN EXHIBIT A OF THE RFP. AS A RESULT OR THIS EVALUATION, TULL RECEIVED A SCORE OF 80.3 AS COMPARED TO SINGER'S SCORE OF 60.1. ALTHOUGH SINGER HAS PROVIDED DETAILED TECHNICAL ARGUMENTS IN SUPPORTING IS PROTEST, WE ARE UNABLE TO CONCLUDE THAT THE CONTRACTING AGENCY ABUSED ITS DISCRETION IN FINDING SINGER'S PROPOSAL UNACCEPTABLE. THE OVERALL DETERMINATION OF THE TECHNICAL ADEQUACY OF THE SINGER PROPOSED SYSTEM OF FAA'S PURPOSES IS PROPERLY THE FUNCTION OF FAA, AND WE HAVE NOT ATTEMPTED TO MAKE AN INDEPENDENT DETERMINATION IN THIS RESPECT. SEE B- 164552(1), FEBRUARY 24, 1969, AND 51 COMP. GEN. 621 (1972).

WITH RESPECT TO THE SINGER CONTENTION THAT THE FLIGHT TESTS WERE UNFAIRLY CONDUCTED, FAA MAINTAINS THAT NO FAVORITISM WAS SHOWN TO ANY OF THE OFFERORS, AND THAT SINGER RECEIVED EVERY CONSIDERATION TO WHICH THEY WERE ENTITLED. BELOW ARE SOME EXCERPTS FROM THE ADMINISTRATIVE REPORT WHICH DEMONSTRATE, IN OUR VIEW, THAT THE TESTS WERE CONDUCTED FAIRLY:

"1. SINGER CONTENTION. THE FIRST GROUND RULE ESTABLISHED BY FAA WAS NO PERSONNEL WOULD BE PERMITTED TO RIDE ABOARD THE DC-3 DURING THE TEST PROGRAM. SINGER CONTENDS THAT TULL WAS PERMITTED TO PUT PEOPLE ABOARD AND THIS GAVE TULL AN ADVANTAGE.

(FAA REPLY)

ONE GROUND RULE ESTABLISHED PRIOR TO THE EVALUATION PRECLUDED ANY OF THE OFFEROR'S PERSONNEL BEING PRESENT ON THE AIRCRAFT DURING FLIGHT CHECK. HOWEVER, THE RULES DID PERMIT ONE SHORT INITIAL FLIGHT WITH AN OFFEROR'S ENGINEER ON BOARD STRICTLY FOR ASSESSING PERFORMANCE OF THEIR AIRBORNE INSTALLATION FOR WHICH THEY WERE TOTALLY RESPONSIBLE. THIS WAS AVAILABLE TO SINGER-KEARFOTT ON REQUEST. IN THE INSTANCE CITED BY SINGER, THE TULL ENGINEERS OBSERVED THE OPERATION OF THEIR AIRBORNE SYSTEM DURING A FLIGHT OF APPROXIMATELY FIFTEEN MINUTES DURATION; NO GROUND PERFORMANCE DATA OR FLIGHT INSPECTION RECORDINGS RESULTING FROM THIS FLIGHT WERE SHOWN TO THEM OR DISCUSSED. ON OCTOBER 18, 1973, AFTER PERMITTING REINSTALLATION OF THE TALAR AIRBORNE UNIT AT ANOTHER LOCATION ON THE FLIGHT INSPECTION AIRCRAFT, MR. RICHARD JONES (SINGER) WAS ASKED BY MR. P. M. KEHOE (FAA) IF HE DESIRED AN AIRBORNE CHECK OF HIS INSTALLATION BEFORE COMMENCING THE EVALUATION. MR. JONES ADVISED THAT IT WOULD NOT BE NECESSARY. (SINGER HAD CONDUCTED EXTENSIVE TESTS WITH THEIR GROUND TEST EQUIPMENT. OCTOBER 31, MESSRS. JONES AND SAUNDERS, AND ON NOVEMBER 27 MR. JONES ACCOMPANIED THE FLIGHT CREW TO RICHMOND ON THE FAA AIRCRAFT FOR TRANSPORTATION PURPOSES. THIS WAS PERMITTED TO ASSIST SINGER IN ARRIVING AT THE EVALUATION SITE IN A TIMELY MANNER TO AVOID POSSIBLE DELAY IN CONDUCTING THE VALUATION.

THE ALLEGATION THAT TULL WAS GRANTED MORE FAVORABLE CONSIDERATION IS WITHOUT BASIS. ON THE CONTRARY, SINGER-KEARFOTT WAS ALLOWED CONSIDERATIONS WHICH WERE NOT TAKEN ADVANTAGE OF BY TULL. SINGER WAS ALLOWED TO REPOSITION THEIR AIRBORNE ANTENNA, REPLACE SEVERAL SYSTEM COMPONENTS, AND THEY RECEIVED DEVELOPMENTAL IN-FLIGHT ASSISTANCE FROM FAA IN GROUND ANTENNA ADJUSTMENTS. FAA FLEW A TOTAL OF 26.1 HOURS ON THE SINGER SYSTEM AS COMPARED TO 21.7 HOURS FOR TULL.

SINGER'S CONTENTION THAT THEY WERE NOT AFFORDED A SIMILAR OPPORTUNITY TO ISOLATE THOSE INSTALLATION PROBLEMS AND CORRECT THEM PRIOR TO OFFICIAL FLIGHTS IS CLEARLY REFUTED BY THE ACTUAL EVENTS AND THE OPPORTUNITIES AFFORDED SINGER TO CORRECT ANY PROBLEMS IN THEIR GROUND AND/OR AIRBORNE EQUIPMENT.

"2. SINGER CONTENTION. ON OCTOBER 18, WHEN PROBLEMS WITH THE CALIBRATION OF THE SINGER LOCALIZER BECAME APPARENT, FAA WAS ASKED TO FLY THE GLIDE SLOPE ANTENNA VERIFICATION WHILE NECESSARY ADJUSTMENTS COULD BE MADE TO THE LOCALIZER ANTENNA. FAA INSISTED ON COMPLETING THE LOCALIZER VERIFICATION BEFORE MOVING THE GLIDE SLOPE. THIS PROCEDURAL INCONSISTENCY GAVE TULL TWO ADDITIONAL EVENINGS TO FLIGHT TEST AND TUNE THEIR LOCALIZER. IT SHOULD BE NOTED THAT TWO OF THE DISCREPANCIES LISTED BY FAA ARE FROM DATA GATHERED FLYING AGAINST THIS DAMAGED ANTAENNA.

(FAA REPLY)

TULL AVIATION WAS NOT GRANTED ANY FAVORITISM ON SITE BY FAA PERSONNEL INVOLVED. THE DECISION TO FLIGHT TEST THE TULL GLIDE SLOPE AFTER ENCOUNTERING MINOR PROBLEMS WITH THEIR LOCALIZER DID NOT VIOLATE ANY ESTABLISHED GROUND RULES. THE DECISION WAS BASED ON THE FACT THAT THE GLIDE SLOPE WAS READY AND THEREFORE IT WOULD BE ADVANTAGEOUS TO CONTINUE THE TESTING BECAUSE OF THE EXPENSE OF GOVERNMENT PERSONNEL AND AIRCRAFT HAVING TO WAIT UNTIL THE LOCALIZER PROBLEM WAS CORRECTED. FURTHERMORE, THE FAA WAS ASSURED THAT THE PROBLEM WAS IDENTIFIED AND COULD BE CORRECTED ON SITE. ONE KEY FACT IS THAT EVEN WITH THE MINOR PROBLEM ENCOUNTERED, THE TULL AVIATION LOCALIZER HAD BEEN WITHIN TOLERANCE. TULL PERSONNEL STATED THAT THEY WOULD LIKE TO TRY TO IMPROVE THE PERFORMANCE AND REQUESTED THAT FLIGHT EVALUATION BE TRANSFERRED TO THE GLIDE SLOPE WHICH WAS READY. CONSIDERING THAT THE TULL AVIATION SYSTEM WAS IN TOLERANCE, THAT MERELY SOME FIELD ADJUSTMENT WAS REQUESTED, AND THAT THE GLIDE SLOPE WAS READY FOR FLIGHT EVALUATION, THE PROJECT MANAGER ELECTED TO FLIGHT TEST THE GLIDE SLOPE WHILE TULL MADE ADJUSTMENTS TO THE LOCALIZER.

IT SHOULD BE NOTED THAT THE 'DAMAGED' ANTENNA (SINGER'S REFERRED TO BY SINGER IS THE FIXED BEAM ANTENNA WHICH REPLACED THE VARIABLE WIDTH ANTENNA. SINGER HAD ALREADY BEEN PERMITTED A MAJOR SYSTEM COMPONENT CHANGE NOT MERELY AN ADJUSTMENT. THE FIXED BEAM ANTENNA IS THE STANDARD 4.6 DEGREES ANTENNA USED IN THE SINGER SYSTEM. THE SINGER DIFFICULTIES REQUIRED EXTENSIVE FLIGHT CHECKING AND DATA GATHERING BY THEIR AIRCRAFT AND WAS EVEN SUPPLEMENTED BY THE FAA AIRCRAFT. THE FAA FLIGHT EVALUATION HAD IDENTIFIED A SERIOUS PROBLEM WITH THE SINGER LOCALIZER (REGARDLESS OF THE ANTENNA BEING USED) WHICH WAS, IF NOT CORRECTABLE, A MAJOR DEFICIENCY. THE PROJECT MANAGER DECIDED, QUITE CORRECTLY, TO ALLOW SINGER EVERY OPPORTUNITY TO CORRECT THE SITUATION AND TO CONTINUE WITH THE FLIGHT EVALUATION OF THE LOCALIZER."

WE HAVE HELD THAT THE ESTABLISHMENT OF PROCEDURES, INCLUDING THE RESPONSIBILITY OF DETERMINING THE TESTING NECESSARY FOR PRODUCT ACCEPTABILITY, IS WITHIN THE AMBIT OF THE EXPERTISE OF THE COGNIZANT TECHNICAL ACTIVITY. SEE B-176256, NOVEMBER 30, 1972. SINCE IN THE INSTANT CASE TECHNICAL PERSONNEL HAVING RESPONSIBILITY FOR THE TESTING AND EVALUATION OF THE LANDING SYSTEM DETERMINED THAT THE TESTING CONDUCTED WAS IN ACCORDANCE WITH THE SOLICITATION PROVISIONS AND THAT FURTHER TESTING OF THE SINGER SYSTEM WOULD NOT HAVE ALTERED THE CONCLUSIONS REACHED CONCERNING ITS ABILITY TO MEET THE SPECIFICATION REQUIREMENTS, THERE IS NO BASIS FOR OUR OFFICE TO INTERPOSE AN OBJECTION TO THE DETERMINATION THAT THE SINGER SYSTEM AS TESTED DID NOT MEET THE SPECIFICATIONS AS REQUIRED. WHILE SINGER OBVIOUSLY DOES NOT AGREE WITH THAT VIEW, THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE REJECTION OF SINGER'S PROPOSAL WAS THE RESULT OF ANYTHING OTHER THAN THE REASONABLE JUDGMENT OF THE FAA'S TECHNICAL EXPERTS. ALTHOUGH IT IS POSSIBLE THAT SOME OTHER TECHNICAL EXPERTS MAY DISAGREE WITH THE FAA, WE DO NOT BELIEVE IT IS APPROPRIATE FOR THIS OFFICE TO QUESTION THE FAA'S TECHNICAL JUDGMENT WHEN THAT JUDGEMENT HAS A REASONABLE BASIS, MERELY BECAUSE THERE MAY BE DIVERGENT TECHNICAL OPINIONS AS TO THE EFFICACY AND VALIDITY OF A TESTING PROCEDURE.

SINGER HAS CONTENDED THAT THE FAA DID NOT PROPERLY CONSIDER THE ECONOMIC DATA PACKAGE THAT WAS PART OF THE PHASE I EVALUATION IN THE SELECTION PROCESS. SINGER HAS STRESSED THE FACT THAT ITS PROPOSAL REPRESENTED THE LOWEST COST TO POTENTIAL USERS OF THE MICROWAVE LANDING SYSTEM. IT SHOULD BE POINTED OUT THAT THE SUBJECT CONTRACT IS FOR A FIXED PRICE OF $25,000.00, SO THAT THE COST THAT SINGER REFERS TO IS POTENTIAL COST TO BE INCURRED BY USER FACILITIES UNDER FUTURE CONTRACTS TO WHICH THE FAA WILL NOT BE A CONTRACTING PARTY. SINCE THE PROCURING ACTIVITY DID NOT CONSIDER THE SINGER TECHNICAL PROPOSAL ACCEPTABLE DUE TO ITS FAILURE TO MEET THE PERFORMANCE REQUIREMENTS OF THE SOLICITATION, IT WAS NOT REQUIRED TO MAKE THE USER COST COMPARISON OF THE RESPECTIVE SYSTEMS THE DETERMINATIVE FACTOR IN THE SELECTION DECISION. SINGER HAS ALSO CONTENDED THAT TULL AVIATION WAS NOT TOTALLY RESPONSIVE TO THE ECONOMIC DATA PACKAGE REQUIREMENTS. THE RECORD SHOWS THAT THE TULL ECONOMIC DATA PACKAGE WAS CAREFULLY SCRUTINIZED BY THE ECONOMIC EVALUATION TEAM AND SCORED NUMERICALLY IN ACCORDANCE WITH A PREDETERMINED EVALUATION PLAN. ONE ASPECT OF THE TULL ECONOMIC PACKAGE DID RECEIVE A LOW SCORE. HOWEVER, IT WAS CONSIDERED RESPONSIVE TO THE RFP AND THE TOTAL SCORE FOR THE ECONOMIC PACKAGE WAS CONSIDERED ACCEPTABLE FOR FURTHER NEGOTIATIONS.

WITH REGARD TO THE CONTENTION THAT BY THE ISSUANCE OF AMENDMENT 1 TO THE RFP, WHICH ELIMINATED POSSIBLE CONSIDERATION OF A "CO-LOCATED" TYPE OF MICROWAVE LANDING SYSTEM, THE FAA VIOLATED ITS PUBLISHED POLICY BY NOT ADEQUATELY CONSIDERING THE REQUIREMENTS OF THE ANTICIPATED USERS OF THE ISMLS, WE NOTE THAT SINGER DID NOT PROTEST THIS ALLEGED DEFICIENCY BEFORE SUBMITTING ITS PROPOSAL. SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 C.F.R. 20.2(A), STATES IN PART THAT:

"*** PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS *** SHALL BE FILED PRIOR TO *** THE CLOSING DATE FOR RECEIPT OF PROPOSALS."

SINCE THE ALLEGED DEFICIENCY WAS OR SHOULD HAVE BEEN APPARENT TO SINGER PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS, THE PROTEST AFTER ANNOUNCEMENT OF THE SELECTION DECISION WAS CLEARLY UNTIMELY AND IS THEREFORE NOT FOR CONSIDERATION ON THE MERITS.

FINALLY, IN A LETTER DELIVERED TO OUR OFFICE ON AUGUST 14, 1974, SINGER ADVISED THAT IT HAD RECENTLY LEARNED OF THE EXISTENCE OF CERTAIN FAA DOCUMENTS PREPARED BY THE CHAIRMAN OF THE TECHNICAL EVALUATION TEAM WHICH CONFIRM CERTAIN SINGER CONTENTIONS. ALTHOUGH WE WERE UNABLE TO LOCATE ALL OF THESE DOCUMENTS, WE DISCUSSED THE MATTER WITH THE CHAIRMAN, MR. BAGLEY. HE CONFIRMS SINGER'S ASSERTION THAT HE EXPRESSED THE OPINION THAT THE SOLICITATION SHOULD NOT HAVE BEEN LIMITED TO THE SPLIT SITE SYSTEM AND THAT THE TESTING SITE WAS NOT THE MOST APPROPRIATE FOR PURPOSES OF THIS PROCUREMENT. HOWEVER, HE DENIED SINGER'S ASSERTION THAT HE STATED THAT TULL DID NOT MEET THE TESTING REQUIREMENTS AND, IN FACT, STATED THAT IT DID. IT IS OUR VIEW THAT MR. BAGLEY'S EXPRESSION OF HIS PERSONAL OPINION CONCERNING THESE MATTERS DOES NOT REQUIRE OR WARRANT ANY CHANGE IN THE CONCLUSIONS EXPRESSED ABOVE BASED UPON OUR REVIEW OF THE OFFICIAL RECORD. FURTHERMORE, HIS VIEWS CONCERNING THE SPLIT SITE SYSTEM AND TESTING SITE RELATE TO MATTERS WHICH WERE NOT TIMELY RAISED. FINALLY, HE DID NOT CONFIRM SINGER'S ASSERTION CONCERNING THE NONACCEPTABILITY OF THE TULL SYSTEM.