B-181696, OCT 8, 1974

B-181696: Oct 8, 1974

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UNSUCCESSFUL OFFEROR'S PROTEST BASED ON GROUNDS THAT ITS EQUIPMENT IS TECHNICALLY SUPERIOR TO THE EQUIPMENT SELECTED FOR AWARD AND THAT THE SELECTION OF ANOTHER OFFEROR'S NIGHT VISION SCOPE WAS INCONSISTENT WITH EVALUATION FACTORS LISTED IN RFP IS DENIED. WILL NOT BE DISTURBED BY GAO IN THE ABSENCE OF A CLEAR SHOWING OF UNREASONABLENESS OR AN ABUSE OF DISCRETTION. EACH PROSPECTIVE CONTRACTOR WAS TO SUBMIT FIVE NVS PRODUCTION SAMPLES AS PART OF ITS PROPOSAL FOR A COMPETITIVE EVALUATION TO BE PERFORMED BY THE GOVERNMENT IN ACCORDANCE WITH USCS SPECIFICATION NO. WERE DETERMINED TO BE IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF THE RFP AND FORWARDED FOR TECHNICAL EVALUATION. THE THREE FIRMS' DEVICES WERE SUBSEQUENTLY EVALUATED AND COMPARED AS FOLLOWS FROM A PRICE AND TECHNICAL STANDPOINT: ZOOMAR APPLIED SMITH AND WESSON SYSTEM PERFORMANCE I II III OPERATIONAL UTILITY I III II PRICE $304.

B-181696, OCT 8, 1974

UNSUCCESSFUL OFFEROR'S PROTEST BASED ON GROUNDS THAT ITS EQUIPMENT IS TECHNICALLY SUPERIOR TO THE EQUIPMENT SELECTED FOR AWARD AND THAT THE SELECTION OF ANOTHER OFFEROR'S NIGHT VISION SCOPE WAS INCONSISTENT WITH EVALUATION FACTORS LISTED IN RFP IS DENIED, SINCE CONTRACTING OFFICER'S DETERMINATION, BASED UPON THE RESULTS OF A COMPARATIVE ANALYSIS OF THE PROPOSED UNITS WHICH CONSISTED OF SIX COMPARATIVE PERFORMANCE TESTS AND AN EVALUATION OF THE SALIENT MECHANICAL AND OPERATIONAL DESIGN FEATURES OF THE DEVICES, WILL NOT BE DISTURBED BY GAO IN THE ABSENCE OF A CLEAR SHOWING OF UNREASONABLENESS OR AN ABUSE OF DISCRETTION.

APPLIED SYSTEMS CORPORATION:

REQUEST FOR PROPOSALS (RFP) NO. BC-74-18, ISSUED BY THE U.S. CUSTOMS SERVICE (USCS), SOLICITED PROPOSALS FOR THE FURNISHING OF 100 OFF-THE SHELF NIGHT VISION SCOPES (NVS) AND ACCESSORY EQUIPMENT. SIX FIRMS RECEIVED COPIES OF THE RFP. EACH PROSPECTIVE CONTRACTOR WAS TO SUBMIT FIVE NVS PRODUCTION SAMPLES AS PART OF ITS PROPOSAL FOR A COMPETITIVE EVALUATION TO BE PERFORMED BY THE GOVERNMENT IN ACCORDANCE WITH USCS SPECIFICATION NO. S-FMD-74-11, INCORPORATED IN THE RFP. OF THE FOUR PROPOSALS TIMELY SUBMITTED IN RESPONSE TO THE RFP, THOSE OF APPLIED SYSTEMS CORPORATION (APPLIED); ZOOMAR, INCORPORATED (ZOOMAR); AND SMITH AND WESSON (S&W), WERE DETERMINED TO BE IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF THE RFP AND FORWARDED FOR TECHNICAL EVALUATION. THE THREE FIRMS' DEVICES WERE SUBSEQUENTLY EVALUATED AND COMPARED AS FOLLOWS FROM A PRICE AND TECHNICAL STANDPOINT:

ZOOMAR APPLIED SMITH AND WESSON

SYSTEM PERFORMANCE I II III

OPERATIONAL UTILITY I III II

PRICE $304,365 $254,800 $305,103

THE SOLICITATION SPECIFICATIONS CONTAINED DESIGN REQUIREMENTS WHICH HAD BEEN OBJECTED TO BY APPLIED AND S&W AS BEING DESCRIPTIVE OF ZOOMAR'S PRODUCT. IN RESPONSE THERETO, THE PROCURING AGENCY ISSUED AMENDMENT NO. 1 TO THE SOLICITATION, WHICH ADVISED OFFERORS THAT THE MECHANICAL SPECIFICATION WAS INTENDED ONLY TO SERVE AS A "GUIDE" IN ESTABLISHING A MINIMUM ACCEPTABLE STANDARD FOR A RUGGED SCOPE. OFFERORS WERE FURTHER ADVISED THAT SELECTION FOR AWARD WOULD BE BASED ON THE FOLLOWING FACTORS, IN DESCENDING ORDER TO IMPORTANCE:

1. VIEWING PERFORMANCE, AS DETERMINED BY THE LABORATORY TESTS SET FORTH IN THE RFP

2. MECHANICAL RUGGEDNESS: ABILITY TO RETAIN TECHNICAL OR OPERATIONAL UTILITY UNDER ADVERSE FIELD AND ENVIRONMENTAL CONDITIONS

3. COST

THE CONTRACTING OFFICER, AFTER CONSIDERATION OF THE ABOVE RESULTS OF THE EVALUATION TESTS PERFORMED BY THE NAVAL ORDNANCE LABORATORY (NOL), DETERMINED THAT ONLY APPLIED AND ZOOMAR WERE IN THE COMPETITIVE RANGE. ALTHOUGH THE SCOPES OFFERED BY APPLIED WERE DEEMED ACCEPTABLE, THE ZOOMAR EQUIPMENT WAS CONSIDERED TO BE CLEARLY TECHNICALLY SUPERIOR. SUBSEQUENTLY, BOTH OFFERORS WERE REQUESTED BY THE CONTRACTING OFFICER TO EITHER CONFIRM THEIR ORIGINAL OFFERS OR TO SUBMIT A REVISED OFFER BY JUNE 27, 1974. WHILE APPLIED'S ORIGINAL OFFER OF A TOTAL FIXED PRICE OF $254,800 REMAINED UNCHANGED, ZOOMAR SUBMITTED A REVISED BEST AND FINAL OFFER OF $259,000. THE CONTRACTING OFFICER THEN DETERMINED THAT THE TECHNICAL AND OPERATIONAL UTILITY OF THE ZOOMAR SCOPE MORE THAN OFFSET THE $4,200 PRICE DIFFERENTIAL, AND THEREFORE IT WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT TO AWARD THE CONTRACT TO ZOOMAR.

APPLIED PROTESTED THIS AWARD ALLEGING THAT IT OFFERED TECHNICALLY SUPERIOR EQUIPMENT AT THE LOWEST COST. APPLIED CONTENDS THAT ITS INSTRUMENT IS SUPERIOR TO THE ZOOMAR DEVICE IN VIEWING PERFORMANCE PRIMARILY BECAUSE OF THE LARGER APERTURE OF THE OBJECTIVE LENS: F/1.0 AS COMPARED TO F/1.3. MOREOVER, APPLIED ALLEGES THAT EVEN IF THE ZOOMAR UNIT DISPLAYS A HIGHER TOTAL SYSTEMS RESOLUTION THAN ITS NVS IN THE LABORATORY PERFORMANCE TESTS, IN ACTUAL OPERATING FIELD CONDITIONS APPLIED'S DEVICE WILL BE TECHNICALLY SUPERIOR TO THE ZOOMAR UNIT. APPLIED ALSO STATES THAT ACTUAL USE IN THE FIELD HAS DEMONSTRATED THE SUPERIOR MECHANICAL RUGGEDNESS OF ITS NVS.

FOR THE REASONS STATED BELOW THE PROTEST IS DENIED. IT IS NOT THE FUNCTION OF OUR OFFICE TO EVALUATE PROPOSALS AND WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING OFFICIALS BY MAKING AN INDEPENDENT DETERMINATION AS TO WHICH OFFEROR IN A NEGOTIATED PROCUREMENT SHOULD BE RATED FIRST AND THEREBY RECEIVE AN AWARD. B 164552(1), FEBRUARY 24, 1969. THE OVERALL DETERMINATION OF THE RELATIVE DISIRABILITY AND TECHNICAL ADEQUACY OF PROPOSALS IS PRIMARILY A FUNCTION OF THE PROCURING AGENCY AND IN THIS REGARD, WE HAVE RECOGNIZED THAT THE CONTRACTING OFFICER ENJOYS A REASONABLE RANGE OF DISCRETION IN THE EVALUATION OF PROPOSALS AND IN THE DETERMINATION OF WHICH OFFER OR PROPOSAL IS TO BE ACCEPTED FOR AWARD AS IN THE GOVERNMENT'S BEST INTEREST. B-178887(2), APRIL 10, 1974; B-176077(6), JANUARY 26, 1973. SINCE DETERMINATIONS AS TO THE NEEDS OF THE GOVERNMENT ARE THE RESPONSIBILITY OF THE PROCURING ACTIVITY CONCERNED, THE JUDGMENT OF SUCH ACTIVITY'S SPECIALISTS AND TECHNICIANS AS TO THE TECHNICAL ADEQUACY OF PROPOSALS SUBMITTED IN RESPONSE TO THE AGENCY'S STATEMENT OF ITS NEEDS ORDINARILY WILL BE ACCEPTED BY OUR OFFICE. 175331, MAY 10, 1972. SUCH DETERMINATIONS WILL BE QUESTIONED BY OUR OFFICE ONLY UPON A CLEAR SHOWING OF UNREASONABLENESS, AN ARBITRARY ABUSE OF DISCRETION, OR A VIOLATION OF THE PROCUREMENT STATUTES AND REGULATIONS. B-179603, APRIL 4, 1974; B-176077(6), JANUARY 26, 1973

IN ACCORDANCE WITH PARAGRAPH 3.0 OF SPECIFICATION NO. S-FMD-74-11, FIVE UNITS OF EACH OFFEROR'S NVS'S WERE PROVIDED TO NOL FOR COMPARATIVE PERFORMANCE TESTING UNDER LABORATORY CONDITIONS. TOTAL SYSTEMS PERFORMANCE WAS DETERMINED BY SIX COMPARATIVE PERFORMANCE TESTS ENUMERATED IN THE RFP WHICH WERE, WE ARE ADVISED, SPECIFICALLY DESIGNED TO MEASURE THOSE PARTICULAR PARAMETERS WHICH ARE GENERALLY ACCEPTED AMONG TECHNOLOGISTS AS NECESSARY TO DETERMINING TOTAL SYSTEMS VIEWING PERFORMANCE. ALL THE NVS UNITS WERE RANKED IN ORDER OF THEIR PERFORMANCE AND SCORED WITH A WEIGHTED NUMBER OF POINTS ACCORDING TO THEIR EARNED RANK IN EACH TEST AND THE ASSIGNED WEIGHT FOR THAT RANK. THE ZOOMAR UNIT, WITH A SCORE OF 114 POINTS AS COMPARED TO 98 POINTS FOR THE PROTESTER'S UNITS, HAD THE BEST OVERALL LABORATORY VIEWING CAPABILITY AND WAS DETERMINED TO BE THE BEST PERFORMING INSTRUMENT.

THE RECORD INDICATES THAT WHILE APPLIED BASES ITS ARGUMENTS FOR SUPERIOR NVS VIEWING PERFORMANCE PRIMARILY UPON THE FACT THAT ITS NVS HAS AN OBJECTIVE LENS WITH A LARGER RELATIVE APERTURE THAN THE ZOOMAR UNIT HAS, THAT PARTICULAR PERFORMANCE CHARACTERISTIC (FACTOR) IS CONSIDERED BY THE PROCURING ACTIVITY AS ONLY ONE OF SEVERAL EQUALLY IMPORTANT PARAMETERS IN DETERMINING TOTAL SYSTEMS VIEWING PERFORMANCE. THE AGENCY DETERMINED THAT WHILE ADMITTEDLY THE APPLIED UNIT RECEIVED AND TRANSFERRED MORE LIGHT BECAUSE OF THE LARGER APERTURE OF ITS LENS, THE AMOUNT OF VISUAL INFORMATION TRANSFERRED TO THE EYE OF THE OBSERVER WAS APPRECIABLY LESS. AS A CONSEQUENCE OF THIS AND THE OTHER FACTORS UNDER CONSIDERATION RELATING TO VISUAL PERFORMANCE, THE APPLIED SYSTEM HAD A LOWER TOTAL SYSTEM PERFORMANCE RATING THAN THE ZOOMAR NVS.

IN RESPONSE TO THE PROTESTER'S ALLEGATION THAT LABORATORY PERFORMANCE TESTS ARE NOT REPRESENTATIVE OF NVS FIELD PERFORMANCE AND THAT IN ACTUAL OPERATING FIELD CONDITIONS ITS DEVICE IS TECHNICALLY SUPERIOR TO THE ZOOMAR UNIT, THE USCS AND NOL CONDUCTED A SPECIAL COMPARATIVE FIELD PERFORMANCE TEST TO REMOVE ALL DOUBT RELATIVE TO THE VALIDITY OF ITS LABORATORY TEST DATA. THE REPORT STATED THAT THE FIELD TEST DATA WAS TOTALLY CONSISTENT WITH LABORATORY TEST RESULTS AND REINFORCED THE CONCLUSION THAT THE ZOOMAR DEVICE IS SUPERIOR TO THE APPLIED NVS ACCORDING TO CRITERIA USED IN EVALUATING TOTAL SYSTEM PERFORMANCE.

IN ADDITION TO THE PERFORMANCE TESTS, THE UNITS WERE EVALUATED ON THE BASIS OF THEIR OPERATIONAL DESIGN (UTILITY). A TOTAL OF 17 DESIGN CRITERIA WERE CHOSEN AND THE UNITS WERE RANKED IN RELATIVE ORDER OF EXCELLENCE FOR EACH OF THE SPECIFIED ELEMENTS WITH THE ZOOMAR UNITS RECEIVING THE HIGHEST SCORE. IN THIS REGARD, APPLIED RELIES ON THE "MECHANICAL RUGGEDNESS" OF ITS NVS UNIT TO SATISFY THE OPERATIONAL UTILITY REQUIREMENT FOR THE NVS UNITS TO THE EXCLUSION OF OTHER IMPORTANT REQUIREMENTS. AMENDMENT I TO THE RFP CLEARLY SPECIFIED THAT THE NVS UNITS MUST BE CAPABLE OF WITHSTANDING THE RIGORS OF FIELD USE WITHOUT LOSS OF TECHNICAL OR OPERATIONAL UTILITY AND MUST BE EASILY CONVERTIBLE FROM ONE OPERATING MODE TO ANOTHER UNDER LOW LIGHT LEVEL CONDITIONS. WHILE THE APPLIED UNITS WERE RANKED ABOVE THE ZOOMAR UNITS IN LENS CAP PROTECTION, AND WATER AND DUST RESISTANCE, THE ZOOMAR NVS WAS RATED SUPERIOR IN THOSE FUNCTIONAL AREAS PERTAINING TO CONVERTIBILITY FROM ONE OPERATING MODE TO ANOTHER AND IN ITS CONVENIENCE FOR USE IN THE FIELD UNDER LOW LIGHT LEVEL CONDITIONS.

BASED ON OUR REVIEW OF THE RFP AND THE OTHER DOCUMENTS IN THE RECORD OF THE INSTANT PROCUREMENT, IT APPEARS THAT THE EVALUATION FACTORS WERE WEIGHTED AND APPLIED IMPARTIALLY IN ACCORDANCE WITH THE REQUIREMENTS OF THE SOLICITATION. SINCE ZOOMAR RECEIVED THE HIGHER SCORE AND THE CONTRACTING OFFICER DETERMINED THAT THE PRICE DEFFERENTIAL OF 1.65 PERCENT WAS WARRANTED BY THE TECHNICAL SUPERIORITY OF ZOOMAR'S OFFER, IT WAS PROPER UNDER THE TERMS OF THE SOLICITATION TO MAKE AWARD TO ZOOMAR NOTWITHSTANDING THE HIGHER PRICE. 51 COMP. GEN. 153 (1971).