B-181274, NOV 27, 1974

B-181274, NOV 27, 1974

1. WHERE RFP STATED THAT OFFERORS COULD REQUEST WAIVER OF PORTIONS OF SPECIFICATIONS, PROTEST ALLEGING RESTRICTIVE AND DEFECTIVE SPECIFICATIONS FILED AFTER CLOSING DATE FOR RECEIPT OF PROPOSALS, IS TIMELY UNDER 4 C.F.R. SEC. 20.2(A) (1974) SINCE OFFEROR ATTEMPTED TO OBTAIN WAIVER BEFORE CLOSING DATE AND REQUEST WAS DENIED AFTER SUBMISSION OF PROPOSALS, WHICH ACTION PRECIPITATED PROTEST. HOWEVER, PROTEST AGAINST REQUIREMENT NOT SUBJECT TO WAIVER IS UNTIMELY BECAUSE IT WAS NOT FILED PRIOR TO CLOSING DATE. 2. DETERMINATION OF MINIMUM NEEDS OF GOVERNMENT RESTS WITH PROCURING ACTIVITY AND WILL NOT BE DISTURBED IN ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT ACTIVITY WAS IN ERROR, WHICH EVIDENCE WAS NOT PRESENTED BY PROTESTER ALLEGING SPECIFICATIONS WERE RESTRICTIVE BECAUSE AGENCY OVERSTATED MINIMUM NEEDS. 3. WHERE CONTRACTING OFFICER EXPLAINS SPECIFICATION TO OFFEROR, WHO IN RESPONSE SUBMITS ALTERNATE PROPOSAL WITH REQUEST FOR WAIVER FROM VARIOUS REQUIREMENTS SUCH OFFEROR WILL NOT BE HEARD TO OBJECT THAT SPECIFICATIONS WERE INCONSISTENT AS SPECIFICATIONS WERE CLARIFIED PRIOR TO SUBMISSION OF PROPOSALS. 4. DETERMINATION OF RESPONSIBILITY OF PROSPECTIVE CONTRACTS IS PRIMARILY FOR RESOLUTION BY CONTRACTING AGENCY AND SINCE THERE HAS BEEN NO SHOWING OF FRAUD, MATTER WILL NOT BE CONSIDERED. ALSO, POSSIBILITY OF UNPROFITABLE PRICE IS NOT SUFFICIENT REASON FOR REJECTING OTHERWISE ACCEPTABLE OFFER.

TELEPROMPTER CORPORATION:

ON JANUARY 4, 1974, REQUEST FOR PROPOSALS (RFP) NO. F04684-74-R-0784 FOR FURNISHING CABLE TELEVISION (CATV) SERVICES WAS ISSUED AT VANDENBERG AIR FORCE BASE, CALIFORNIA. THE RFP CONTEMPLATED A 10-YEAR FRANCHISE TO FURNISH THE SERVICES TO PERSONNEL ON THE BASE.

AFTER THE SUBMISSION OF PROPOSALS AND SUBSEQUENT NEGOTIATIONS AND UPON RECEIPT OF A NOTICE ADVISING THAT AWARD WAS CONTEMPLATED TO ANOTHER FIRM, TELEPROMPTER CORPORATION (TPT) PROTESTED TO OUR OFFICE AN AWARD TO ANY OTHER FIRM.

TPT'S PROTEST IS BASED ON THE FOLLOWING GROUNDS:

1. THE RFP DISCRIMINATES AGAINST TPT;

2. THE SPECIFICATIONS ARE RESTRICTIVE;

3. THE SPECIFICATIONS ARE DEFECTIVE AND INCONSISTENT; AND

4. THE LOW OFFEROR IS NONRESPONSIBLE.

THE TIMELINESS OF THE PROTEST HAS BEEN CHALLENGED BY THE AIR FORCE WHICH CONTENDS THAT THE PORTION OF THE PROTEST REGARDING THE SPECIFICATIONS SHOULD HAVE BEEN RAISED PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS UNDER OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 C.F.R. PART 20 (1974)). PROTESTS AGAINST ALLEGED IMPROPRIETIES CONTAINED IN SOLICITATIONS WHICH ARE APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS SHOULD BE FILED PRIOR TO THE CLOSING DATE IN ORDER TO BE CONSIDERED TO BE TIMELY (4 C.F.R. SEC. 20.2(A) (1974)). HOWEVER, WE ARE OF THE OPINION THIS RULE IS NOT FOR APPLICATION UNDER THE PRESENT FACTS AS TO THE ENTIRE ARGUMENT REGARDING THE SPECIFICATIONS.

TPT HAS PROTESTED THAT THE SPECIFICATIONS ARE INCONSISTENT, RESTRICTIVE AND DEFECTIVE. TPT SUBMITTED AN ALTERNATE PROPOSAL TAKING EXCEPTION TO THE SPECIFICATIONS AS STATED. WHEN IT LEARNED THAT THIS PROPOSAL WAS REJECTED AND IT WOULD NOT BE CONSIDERED FOR AWARD, TPT PROTESTED TO OUR OFFICE. WE NOTE THAT THE RFP IN EXHIBIT 1 - TECHNICAL REQUIREMENTS - STATED THAT A CONTRACTOR MAY REQUEST WAIVER FROM ANY REQUIREMENT WHERE LOCAL CONDITIONS RENDER A WAIVER ESSENTIAL. THEREFORE, IT APPEARS THAT TPT WAS FOLLOWING THE GUIDANCE OF THE RFP BEFORE PROTESTING TO OUR OFFICE AND WE HOLD THAT PORTION OF THE PROTEST TO BE TIMELY.

HOWEVER, TPT HAS ALSO PROTESTED THAT PARAGRAPHS 7 AND 8 OF THE RFP, WHICH REQUIRE AN OFFEROR WHO OPERATES A CATV SYSTEM IN THE NEARBY COMMUNITY TO CHARGE ON-BASE SUBSCRIBERS NO MORE THAN THE FEES CHARGED OFF-BASE SUBSCRIBERS UNLESS THE OFFEROR CAN SHOW THAT EXPENSES UNIQUE TO THE BASE MAKE THAT IMPOSSIBLE, ARE ANTICOMPETITIVE. TPT OPERATES A NEARBY CATV SYSTEM AND THEREFORE CONTENDS THAT THE OTHER OFFERORS KNEW WHAT ITS MAXIMUM FEE WOULD BE. WE NOTE THAT PARAGRAPHS 7 AND 8 ARE LISTED UNDER THE HEADING "REQUIRED CLAUSES" AND NOT SUBJECT TO WAIVER AS THE TECHNICAL REQUIREMENTS WERE. ACCORDINGLY, WE BELIEVE THIS PORTION OF THE PROTEST SHOULD HAVE BEEN RAISED PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS AND IS, THEREFORE, UNTIMELY AND WILL NOT BE CONSIDERED FURTHER.

AS STATED PREVIOUSLY, TPT CONTENDS THAT THE SPECIFICATIONS ARE RESTRICTIVE IN THAT THEY REQUIRE A CONTRACTOR TO PROVIDE UNNECESSARY SYSTEM CAPABILITY. TPT, AS THE INCUMBENT CONTRACTOR, HAS A 12 CHANNEL SYSTEM INSTALLED ON BASE PRESENTLY. THE SPECIFICATIONS REQUIRE THE CAPABILITY FOR A 20 CHANNEL SYSTEM. TPT ARGUES THAT SINCE VANDENBERG AFB IS NOT IN ONE OF THE 100 MAJOR TELEVISION MARKETS, FEDERAL COMMUNICATIONS COMMISSION (FCC) REGULATIONS ONLY REQUIRE A 12 CHANNEL SYSTEM AND, THEREFORE, THE AIR FORCE HAS OVERSTATED ITS MINIMUM NEEDS ESPECIALLY IN VIEW OF THE FACT THAT THERE ARE ONLY 12 CHANNELS FOR TRANSMISSION TO VANDENBERG. THE AIR FORCE HAS RESPONDED TO THIS ARGUMENT BY STATING THAT THE FRANCHISE TO BE AWARDED IS FOR A 10-YEAR PERIOD AND, THEREFORE, THE SYSTEM SHOULD BE CAPABLE OF FULFILLING NEEDS WHICH MAY ARISE IN THE FUTURE. THE NEED FOR THE 20 CHANNEL SYSTEM WAS JUSTIFIED AS FOLLOWS BY THE CONTRACTING OFFICER:

"*** SINCE 9 OF THE 12 CHANNEL RECEIVED AT VANDENBERG ARE DERIVED FROM THE LOS ANGELES AREA WE CONSIDER OURSELVES TO BE A PART TO THE 100 MAJOR TELEVISION MARKETS AND PARAGRAPH 3.1.1 STATES OUR MINIMUM NEEDS OF REQUIRING A 20 CHANNEL TWO-WAY CAPABILITY. THIS CAPABILITY CAN BE PROVIDED WITH A SINGLE OUTGOING PLANT. PRESENTLY, ADDITIONAL UHF CHANNELS ARE AVAILABLE IN THE LOS ANGELES AREA AND ARE NOT BEING RECEIVED IN THIS AREA. LOCAL CITIES COULD ALSO ADD ADDITIONAL STATIONS IN THE FUTURE AND THERE ARE THREE COLLEGES WITHIN A 50 MILE RADIUS THAT COULD PROVIDE EDUCATIONAL SERVICES. A 12 CHANNEL SYSTEM WOULD SEVERELY LIMIT OUR CAPABILITY OF TAKING ADVANTAGE OF THESE OPPORTUNITIES. THE TWO-WAY SYSTEM IS PLANNED TO BE USED FOR BURGLAR ALARMS, FIRE ALARMS, WATER, GAS AND ELECTRIC REMOTE METER READING, SUBSCRIBER RESPONSE, PAY TELEVISION PROGRAMS (REMOTE ACCOUNTING OF PROGRAMS VIEWED) AND OTHER PERIPHERAL SYSTEMS. THEREFORE, DUE TO LOCAL CONDITIONS IT IS OUR DETERMINATION GRANTING A DEVIATION FROM A 20 CHANNEL TWO-WAY SYSTEM IS NOT ESSENTIAL."

THE PROCURING ACTIVITY HAS THE PRIMARY RESPONSIBILITY FOR DRAFTING SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE AGENCY. SINCE THE AGENCY IS UNIQUELY KNOWLEDGEABLE AS TO WHAT WILL SERVE THE GOVERNMENT'S MINIMUM NEEDS, OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING OFFICIALS IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT THOSE OFFICIALS ARE IN ERROR. 52 COMP. GEN. 219 (1972). TPT HAS NOT MET THIS TEST.

WITH REGARD TO THE ARGUMENT THAT THE AIR FORCE HAS EXCEEDED THE FCC REQUIREMENTS FOR CATV SYSTEMS, WE NOTE THAT THE FCC HAS STATED THAT FRANCHISING AUTHORITIES MAY ESTABLISH TECHNICAL STANDARDS MORE STRINGENT THAN THOSE REQUIRED BY THE COMMISSION. MEMORANDUM OPINION AND ORDER ON RECONSIDERATION OF THE CABLE TELEVISION REPORT AND ORDER, 37 FED. REG. 13848, 13860 (1972). THEREFORE, WE FIND NO REASON TO OBJECT TO THE SPECIFICATIONS AS WRITTEN.

SECONDLY, TPT ARGUES THAT THE SPECIFICATIONS ARE INCONSISTENT BECAUSE IN ONE PORTION OF THE SPECIFICATIONS IT IS STATED THAT IF THE BASE IS OUTSIDE THE 100 MAJOR TELEVISION MARKETS, A 12 CHANNEL SYSTEM IS REQUIRED, WHILE THE REMAINDER OF THE TECHNICAL SPECIFICATIONS ARE WRITTEN FOR A 20 CHANNEL SYSTEM. WHILE THE ABOVE MAY BE TRUE, WE DO NOT SEE WHERE ANY ONE, INCLUDING TPT, WAS PREJUDICED. TPT DISCUSSED THE REQUIREMENTS WITH THE PROCUREMENT OFFICIALS INVOLVED WHO STATED THAT 20 CHANNEL SYSTEM WAS REQUIRED. IT WAS ON THE BASIS OF THE DISCUSSION THAT TPT SUBMITTED ITS ALTERNATE PROPOSAL WITH THE REQUEST FOR WAIVER. THEREFORE, EVEN IF THE SPECIFICATIONS WERE UNCLEAR, THE INCONSISTENCIES WERE CLARIFIED PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS.

FINALLY, TPT PROTESTS THE RESPONSIBILITY OF A COMPETITOR BECAUSE IT BELIEVES THE MONTHLY USER CHARGE PROPOSED BY THAT OFFEROR WILL NOT COVER THE COSTS TO BUILD AND MAINTAIN THE SYSTEM. THE AIR FORCE HAS ADVISED OUR OFFICE THAT IT HAS DETERMINED THE OTHER COMPETITOR RESPONSIBLE.

THE DETERMINATION OF A PROPOSED CONTRACTOR'S RESPONSIBILITY IS LARGELY WITHIN THE DISCRETION OF THE CONTRACTING OFFICER. THE CONTRACTING ACTIVITY MUST HANDLE THE DAY-TO-DAY ADMINISTRATION OF THE CONTRACT AND BEAR THE BRUNT OF ANY DIFFICULTIES EXPERIENCED BY REASON OF THE CONTRACTOR'S LACK OF ABILITY. WHERE THE CONTRACTING OFFICER FINDS A PROPOSED CONTRACTOR RESPONSIBLE, WE DO NOT BELIEVE THE FINDING SHOULD BE DISTURBED EXCEPT ON THE BASIS OF FRAUD. SINCE NO FRAUD HAS BEEN ALLEGED OR DEMONSTRATED, WE MUST DECLINE TO CONSIDER THE MATTER FURTHER. MATTER OF CONTINENTAL CABLEVISION OF NEW HAMPSHIRE, INC., ET AL., B-178542, JULY 19, 1974. MOREOVER, OUR OFFICE HAS HELD THAT THE POSSIBILITY OF A LOSS UNDER A CONTRACT DUE TO A LOW BID OR OFFER IS NOT SUFFICIENT JUSTIFICATION FOR REJECTING AN OTHERWISE ACCEPTABLE OFFER. 49 COMP. GEN. 311, 315 (1969).

FOR THE FOREGOING REASONS, THE PROTEST OF TPT IS DENIED.