B-182309, MAY 19, 1975

B-182309: May 19, 1975

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DETERMINATION AS TO WHETHER PROPOSAL IS WITHIN COMPETITIVE RANGE IS MATTER OF ADMINISTRATIVE DISCRETION AND WILL NOT BE QUESTIONED WHERE NO CLEAR SHOWING OF ARBITRARY ABUSE OF DISCRETION IS PRESENTED BY PROTESTER. NO DISCUSSIONS WITH OFFEROR OF UNACCEPTABLE PROPOSAL NOT SUSCEPTIBLE TO BEING MADE ACCEPTABLE ARE REQUIRED PRIOR TO EXCLUSION FROM THE COMPETITIVE RANGE. 2. SPECIFICATION AFTER PROPOSAL WAS REJECTED AS TECHNICALLY UNACCEPTABLE IS UNTIMELY UNDER 4 C.F.R. SEC. 20.2 AS MATTERS WERE APPARENT PRIOR TO. PROTEST WAS NOT MADE UNTIL AFTER. DACONICS: REQUEST FOR PROPOSALS NO. 5-94409/043 (RFP) WAS ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) GODDARD SPACE FLIGHT CENTER FOR THE PROCUREMENT OF TRACKING DATA PROCESSOR SYSTEMS FOR THE SPACE FLIGHT TRACKING AND DATA NETWORK.

B-182309, MAY 19, 1975

1. DETERMINATION AS TO WHETHER PROPOSAL IS WITHIN COMPETITIVE RANGE IS MATTER OF ADMINISTRATIVE DISCRETION AND WILL NOT BE QUESTIONED WHERE NO CLEAR SHOWING OF ARBITRARY ABUSE OF DISCRETION IS PRESENTED BY PROTESTER. ALSO, NO DISCUSSIONS WITH OFFEROR OF UNACCEPTABLE PROPOSAL NOT SUSCEPTIBLE TO BEING MADE ACCEPTABLE ARE REQUIRED PRIOR TO EXCLUSION FROM THE COMPETITIVE RANGE. 2. PROTEST AGAINST CERTAIN REQUIREMENTS OF, AND AGAINST POSSIBLE RESTRICTIVENESS OF, SPECIFICATION AFTER PROPOSAL WAS REJECTED AS TECHNICALLY UNACCEPTABLE IS UNTIMELY UNDER 4 C.F.R. SEC. 20.2 AS MATTERS WERE APPARENT PRIOR TO, BUT PROTEST WAS NOT MADE UNTIL AFTER, CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS. 3. SUBMISSION OF A HIGHER COST PROPOSAL DEVIATING FROM SPECIFICATION - WHICH REFLECTS ACTUAL NEEDS AND RESULTED IN COMPETITION - DOES NOT REQUIRE AGENCY TO EXPLORE POSSIBLE TECHNICAL AND COST BENEFITS WITH DEVIATING OFFEROR.

DACONICS:

REQUEST FOR PROPOSALS NO. 5-94409/043 (RFP) WAS ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) GODDARD SPACE FLIGHT CENTER FOR THE PROCUREMENT OF TRACKING DATA PROCESSOR SYSTEMS FOR THE SPACE FLIGHT TRACKING AND DATA NETWORK. SEVENTY-FOUR FIRMS WERE SOLICITED. FIVE SUBMITTED THE REQUESTED TECHNICAL AND COST PROPOSALS. DACONICS, ONE OF THESE OFFERORS, PROTESTS THE REJECTION OF ITS TECHNICAL PROPOSAL AS TECHNICALLY UNACCEPTABLE WITH NO REASONABLE CHANCE OF BEING SELECTED FOR AWARD AND THE CONSEQUENT FAILURE OF THE CONTRACTING ACTIVITY TO INCLUDE DACONICS IN NEGOTIATIONS FOR THE PROCUREMENT. AWARD HAS BEEN WITHHELD BY NASA PENDING RESOLUTION OF THE PROTEST.

THE BASES FOR THE DACONICS PROTEST ARE SEVERAL. FIRST, IT IS CONTENDED THAT THE DACONICS TECHNICAL PROPOSAL WAS IMPROPERLY EVALUATED, THEREBY CAUSING IT TO BE ELIMINATED FROM THE COMPETITIVE RANGE. DACONICS DISPUTES THE CONTRACTING ACTIVITY'S REASONS FOR FINDING ITS TECHNICAL PROPOSAL UNACCEPTABLE. THOSE REASONS ARE AS FOLLOWS:

"A) THE COMPUTER PROPOSED, THE HEWLETT-PACKARD 21-MX SERIES, FAILS TO MEET MANY OF THE IMPORTANT REQUIREMENTS OF THE TDPS SPECIFICATION.

"1. YOUR PROPOSAL DID NOT CLEARLY DEMONSTRATE THAT THE H-P 21-MX SERIES COMPUTERS ARE IN CURRENT PRODUCTION, A REQUIREMENT DEFINED IN SECTION 3.1.1 OF THE SPECIFICATION.

"2. THE PROPOSAL DID NOT INDICATE WHICH COMPUTERS IN THE 21-MX SERIES WERE BEING PROPOSED.

"3. ADDRESSING IS IN 1K PAGES RATHER THAN 32K DIRECTLY ADDRESSABLE AND THERE IS NO BASE RELATIVE ADDRESSING, BOTH OF WHICH ARE SPECIFIED IN SECTION 3.1.2(F).

"4. THERE ARE ONLY FOUR GENERAL PURPOSE REGISTERS AVAILABLE RATHER THAN THE EIGHT SPECIFIED IN SECTION 3.1.3.1.

"5. THE FLOATING POINT CAPABILITY PROPOSED DOES NOT HAVE EXTENDED PRECISION UP TO 48 BITS AS REQUIRED BY SECTION 3.1.3.3.

"6. THE HARDWARE MULTIPLY-DIVIDE EXECUTION TIMES, IDENTIFIED BY THE SUITABILITY CRITERIA AS A CRITICAL ITEM, DO NOT MEET THE REQUIREMENTS OF SECTION 3.1.3.2(C) WITHOUT MICROPROGRAMMING. YOUR PROPOSAL GAVE NO INDICATION THAT THE MULTIPLY-DIVIDE TIME COULD BE MET EVEN WITH MICROPROGRAMMING.

"B) THE RESPONSE TO THE TDPS INTERFACE REQUIREMENTS FOR THE COMMUNICATIONS INTERFACES, THE STATION TIME INTERFACE, AND THE ANTENNA CONTROL CONSOLE INTERFACES WAS SERIOUSLY DEFICIENT. YOUR PROPOSAL DID NOT DEMONSTRATE AN UNDERSTANDING OF THE EFFICIENT CONTROL AND TRANSFER OF DATA REQUIRED TO AND FROM THESE INTERFACES. THERE WERE NO BLOCK DIAGRAMS OR TECHNICAL ANALYSES PROVIDED TO INDICATE HOW THESE INTERFACES WOULD BE IMPLEMENTED.

"C) THE RESPONSE TO THE SOFTWARE REQUIREMENTS OF SECTION 3.5 WAS SERIOUSLY DEFICIENT. THE MISSION SUITABILITY CRITERIA IN PART 2 OF THE RFP INDICATED THAT A COMPLETE ANALYSIS AND EXPLANATION OF SOFTWARE TECHNIQUES AND ROUTINES PROVIDED, INCLUDING FLOW CHARTS AND TIMING DIAGRAMS, WAS REQUIRED. THIS WAS NOT PROVIDED."

IT IS THE POSITION OF DACONICS THAT THE ALLEGED DEFICIENCIES INCLUDE SEVERAL PATENT INACCURACIES, THE EXISTENCE OF WHICH IS INDICATIVE OF THE FAULTY MANNER IN WHICH THE PROPOSAL WAS EVALUATED. AS REGARDS ALLEGED DEFICIENCY "A-2," IT IS NOTED THAT A REFERENCE TO THE HP 21-M20 PROCESSOR IS CONTAINED IN ITS LIST OF PROPOSED OFF-THE-SHELF HARDWARE. AS REGARDS ALLEGED DEFICIENCY "A-5," IT IS ADVISED THAT THE DACONICS PROPOSAL INCLUDES A DATA SHEET FOR THE HP 12907A FFP MODEL SHOWING THE 48 BIT TOTAL WORD LENGTH. WITH REGARD TO ALLEGED DEFICIENCY "A-6," IT IS STATED THAT THE PROPOSAL CALLS ATTENTION TO A CASE WHERE A USER PROGRAM EXECUTES A MULTIPLE INSTRUCTION IN 5.5 MICROSECONDS.

WHEN NOTIFIED THAT ITS PROPOSAL WAS NOT ACCEPTABLE AND OF THE REASONS THEREFOR, DACONICS REQUESTED PERMISSION TO DISCUSS THE ALLEGED DEFICIENCIES WITH, AND EXPLAIN THEM TO, THE SOURCE EVALUATION BOARD NSEB). BECAUSE DACONICS WAS INFORMED THAT NO DEBRIEFING COULD BE HELD UNTIL AFTER SELECTION OF THE SUCCESSFUL OFFEROR, DACONICS FEELS THAT THE POSSIBILITY EXISTS OF BIAS AGAINST THE SYSTEM OFFERED BY DACONICS AND FOR CERTAIN OTHER SYSTEMS. DACONICS, WHICH BELIEVES ITSELF TO BE THE LOW OFFEROR, DOES NOT FEEL THAT THE SEB IS OBJECTIVELY SEEKING THE SOLUTION THAT OFFERS THE LOWEST OVERALL COST TO THE GOVERNMENT. MOREOVER, DACONICS QUESTIONS THE NASA FAILURE TO PERMIT IT TO REFUTE THE ALLEGED DEFICIENCIES PRIOR TO ITS ELIMINATION FROM THE COMPETITIVE RANGE.

DACONICS FURTHER QUESTIONS THE REASONING BEHIND SPECIFYING LIMITS ON CERTAIN CENTRAL PROCESSING UNIT (CPU) INSTRUCTION PERFORMANCE TIMES RATHER THAN EMPLOYING THE MORE FAMILIAR AND VALID COMPETITIVE YARDSTICK OF BENCHMARK ROUTINES. DACONICS ALSO QUESTIONS THE NUMBER OF DIFFERENT CPU'S IN EXISTENCE (IN THE PRICE RANGE CONSISTENT WITH THE FUNDING LIMITATIONS PLACED ON THIS PROCUREMENT) WHICH CAN MEET THE REQUIREMENTS OF THE SOLICITATION AND WHETHER OR NOT THE CHOICE OF A CPU HAD NOT ALREADY BEEN MADE PRIOR TO THE WRITING OF THE SPECIFICATION. FINALLY, DACONICS QUESTIONS HOW THE CRITERION FOR "IN PRODUCTION" STATUS WAS DETERMINED TO BE THE EXISTENCE OF A PRODUCTION PLAN FOR THE UNUSUAL QUANTITY OF 18 COMPUTERS.

IN REVIEWING THE DEFICIENCIES ALLEGEDLY EXISTING IN THE DACONICS PROPOSAL WE UTILIZED GAO TECHNICAL PERSONNEL POSSESSING AN EXPERTISE IN THIS AREA. WE FOUND THAT THE DACONICS PROPOSAL DID NOT, IN CONSONANCE WITH THE PROCUREMENT ACTIVITY, CLEARLY DEMONSTRATE THAT THE HP 21-MX SERIES COMPUTERS WERE IN CURRENT PRODUCTION AS ENVISIONED BY SPECIFICATION SECTION 3.1.1. CONTRARY TO THE ACTIVITY DETERMINATION, HOWEVER, INFORMATION CONCERNING WHICH COMPUTERS IN THE 21-MX SERIES WERE BEING PROPOSED AND CONCERNING THE 48 BIT EXTENDED PRECISION FLOATING PRINT CAPABILITY WAS INCLUDED IN THE PROPOSAL. HOWEVER, THIS INFORMATION WAS IN THE DATA SHEETS SUBMITTED RATHER THAN IN THE MAIN BODY OF THE PROPOSAL AND THIS MANNER OF ORGANIZATION MEANT THAT AN EVALUATOR WAS REQUIRED TO ASSIMILATE VARIOUS PORTIONS OF THE ENTIRE PROPOSAL BEFORE A DETERMINATION COULD BE MADE AS TO WHAT ACTUALLY WAS PROPOSED. THIS CREATED A LACK OF CLARITY IN THE PROPOSAL. AS REGARDS THE GENERAL PURPOSE REGISTERS, THE PROCUREMENT ACTIVITY WAS CORRECT IN ITS CONCLUSION THAT THE PROPOSAL OFFERED ONLY FOUR, INSTEAD OF THE EIGHT REQUIRED. ALSO, THE HARDWARE MULTIPLY-DIVIDE EXECUTION TIMES REQUIREMENT, WHICH WAS IDENTIFIED IN THE SOLICITATION AS BEING A CRITICAL REQUIREMENT AND ONE IF WHICH NOT MET WOULD ALONE JUSTIFY REJECTION OF THE PROPOSAL, WAS NOT MET IN THE DACONICS PROPOSAL. WHILE THE PROPOSAL DID STATE THAT ANOTHER USER HAD BEEN ABLE TO SATISFY THE REQUIREMENT, NO INDICATION OF HOW THIS WAS DONE, HOW IT WOULD BE DONE BY DACONICS, OR EVEN WHETHER DACONICS PROPOSED TO ACCOMPLISH THE SAME WAS PRESENTED. AS REGARDS THE DEFICIENCIES "B" AND "C," AS SET FORTH ABOVE, WE ARE IN COMPLETE AGREEMENT WITH THE PROCUREMENT ACTIVITY.

IN VIEW OF THIS REVIEW, WE MUST CONCLUDE THAT THE EVALUATION OF THE DACONICS PROPOSAL WAS REASONABLE. ALSO, THE PROCUREMENT ACTIVITY NOTES THAT THE DACONICS PROPOSAL WAS DEFICIENT IN 18 OF THE 23 TECHNICAL EVALUATION CATEGORIES AND THAT THREE OFFERORS SCORED MORE THAN 70 PERCENT HIGHER THAN DACONICS. IT HAS BEEN THE GENERAL RULE OF OUR OFFICE THAT THE DETERMINATION OF COMPETITIVE RANGE IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION WHICH WILL NOT BE QUESTIONED ABSENT A CLEAR SHOWING OF AN ARBITRARY ABUSE OF DISCRETION. 52 COMP. GEN. 865 (1973). UNDER THE PRESENT CIRCUMSTANCES, WE ARE UNABLE TO CONCLUDE THAT THE REJECTION OF THE DACONICS PROPOSAL AS BEING OUTSIDE OF THE COMPETITIVE RANGE WAS AN ARBITRARY USE OF CONTRACTING ACTIVITY DISCRETION. IN THIS RESPECT, WE NOTE TWO MATTERS. FIRST, THE REVIEW OF OUR TECHNICAL PERSONNEL REVEALED NO BIAS ON THE PART OF THE EVALUATION TEAM AGAINST DACONICS OR THE MANNER IN WHICH IT PROPOSED TO DO THE WORK. NOR WAS A BIAS FOR ONE PARTICULAR SYSTEM APPARENT. SECONDLY, A COMPARISON OF THE DACONICS PRICE OFFER AND THOSE OF THE OFFERORS DETERMINED TO HAVE SUBMITTED ACCEPTABLE PROPOSALS SHOWS THAT THE DACONICS PRICE WAS NOT LOW.

AS REGARDS DACONICS' REQUEST THAT IT BE ALLOWED TO DISCUSS ITS PROPOSAL WITH THE ACTIVITY PRIOR TO SELECTION OF THE SUCCESSFUL OFFEROR, WE AGREE THAT NOT SCHEDULING A DEBRIEFING UNTIL AFTER SUCH SELECTION MAY MAKE IT EXTREMELY DIFFICULT FOR A REJECTED OFFEROR TO PROVE THAT THE REJECTION OF ITS OFFER WAS INCORRECT OR RECEIVE RELIEF IF SUCH IS PROVEN. HOWEVER, AS ADVISED IN THE AGENCY REPORT TO OUR OFFICE, NASA PROCUREMENT REGULATION (NASA PR) 3.106-3(E) (1970 ED.), AND THE INSTRUCTION (NHB 5103.1) REFERENCED THEREIN, PROVIDE THAT DEBRIEFING WILL BE MADE ONLY AFTER A SELECTION FOR AWARD HAS BEEN MADE. THERE IS NOTHING UNUSUAL WITH THIS PROCEDURE. FOR EXAMPLE, ARMED SERVICES PROCUREMENT REGULATION (ASPR) SEC. 3-508.4(B) (1974 ED.) PROVIDES THAT "DEBRIEFINGS SHALL BE PROVIDED AT THE EARLIEST FEASIBLE TIME AFTER CONTRACT AWARD. ***" INDEED, ONCE A PROPOSAL HAS BEEN DETERMINED TO BE UNACCEPTABLE AND NOT FOR FURTHER NEGOTIATION, IT WOULD BE ILLOGICAL TO DISCUSS THIS CONCLUSION WITH THE OFFEROR THEREBY PLACING HIM IN THE POSITION TO CLARIFY OR ENLARGE UPON THE PROPOSAL AND POSSIBLY TO ALLEGE THAT ONCE THIS HAS BEEN DONE THE PROPOSAL SHOULD BE RECONSIDERED. IN ANY EVENT, WE HAVE ALREADY CONCLUDED THAT THE EVALUATION OF THE DACONICS PROPOSAL WAS FAIR, UNBIASED, AND NOT SUBJECT TO OBJECTION TO BY OUR OFFICE.

IN THIS RESPECT, OUR OFFICE HAS HELD IN MATTER OF METIS CORPORATION, B- 181387, JANUARY 24, 1975, 54 COMP. GEN. , THAT:

"WHETHER A PROPOSAL NEEDS CLARIFICATION TO BE DEEMED ACCEPTABLE, WHETHER A PROPOSAL CAN BE MADE ACCEPTABLE BY CLARIFICATION AND REASONABLE EFFORT BY THE GOVERNMENT *** ARE ALL MATTERS OF JUDGMENT ON THE PART OF THE PROCUREMENT AGENCY, WHICH WE WILL NOT QUESTION UNLESS THERE IS EVIDENCE OF FRAUD, PREJUDICE, ABUSE OF AUTHORITY, ARBITRARINESS, OR CAPRICIOUS ACTION."

ON THE BASIS OF THE RECORD IN THIS INSTANCE, WE SEE NO BASIS FOR OBJECTION TO THE ACTIONS OF NASA IN NOT CONDUCTING DISCUSSIONS ON THE MATERIALLY DEFICIENT PROPOSAL OF DACONICS. THE ADOPTED PROCEDURE HAS BEEN COUNTENANCED BY OUR OFFICE, AND SIMILAR PROCEDURES ARE PERMITTED BY ASPR SEC. 2-503.1(F) AND SECTION 1-2.503-1(B)(4) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR CIRC. 1, 1964 ED.). SEE, ALSO, 52 COMP. GEN., SUPRA.

THE QUESTIONS RAISED REGARDING THE USE IN THE RFP OF CERTAIN SPECIFIED LIMITS ON CERTAIN INSTRUCTION PERFORMANCE TIMES RATHER THAN THE USE OF BENCHMARKS AND THE "IN-PRODUCTION" REQUIREMENT OF THE RFP ARE UNTIMELY RAISED AND CONSEQUENTLY NOT FOR CONSIDERATION BY OUR OFFICE. SIMILARLY, THE ALLEGATION CONCERNING THE PRECISE NUMBER OF CPU'S THAT CAN CONFORM TO THE SPECIFICATIONS CONSISTENT WITH THE AMOUNT OF MONEY NASA MAY EXPEND IS UNTIMELY SINCE THE ALLEGATION GOES TO THE RESTRICTIVE NATURE OF THE RFP SPECIFICATION. SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 C.F.R. PART 20 (1974)) PROVIDES THAT:

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

DACONICS DID NOT FILE ITS PROTEST AGAINST THESE ALLEGED IMPROPRIETIES IN THE RFP UNTIL AFTER THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS. SEE MATTER OF COSA CORPORATION, B-181574, NOVEMBER 29, 1974.

FURTHER, WITH RESPECT TO DACONICS' PROPOSAL (DESIGNATED BY NASA AS AN ALTERNATE PROPOSAL), WE NOTE THAT DACONICS SUBMITTED BUT ONE PROPOSAL AND THAT THIS DEVIATED FROM NASA'S SPECIFICATIONS. DACONICS IS AWARE OF ITS PROPOSAL DEVIATIONS BUT CONTENDS THAT THE CPU IT PROPOSES CAN PERFORM THE INTENDED MISSION. FOR THIS REASON, DACONICS BELIEVES IT IS ENTITLED TO AN OPPORTUNITY TO EXPLORE WITH NASA THE BENEFITS, TECHNICAL AND COST, OF ITS DEVIATING PROPOSAL. HOWEVER, MULTIPLE SOURCES HAVE SUBMITTED PROPOSALS CONFORMING TO THE SPECIFICATION, AND WE FIND NOTHING IN THE RECORD WHICH WOULD LEAD US TO CONCLUDE THAT THE SPECIFICATION WAS DRAFTED TO RESTRICT COMPETITION TO CERTAIN CPU'S. SINCE, IN OUR VIEW, NASA HAS DRAFTED A SPECIFICATION REFLECTING ITS ACTUAL NEEDS, WE ARE UNABLE TO OBJECT TO A PROCUREMENT BASED ON THOSE NEEDS. IN VIEW OF THESE CONSIDERATIONS AND OF THE FACT THAT DACONICS WAS NOT A LOW OFFEROR, WE CONCLUDE THAT DACONICS' PROTEST MUST BE DENIED.