B-182344, MAY 8, 1975

B-182344: May 8, 1975

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ALTHOUGH PROTESTER WHO SUBMITTED BEST AND FINAL OFFER INITIALLY PROTESTED TO AGENCY PRIOR TO THAT DATE THAT RFP'S SPECIFICATIONS FOR INTRUSION ALARM SYSTEM WERE DEFECTIVE. SUBSEQUENT PROTEST OF THIS ISSUE TO GAO MORE THAN 5 DAYS AFTER NOTIFICATION OF INITIAL ADVERSE AGENCY ACTION AND AWARD IS UNTIMELY UNDER INTERIM BID PROTEST PROCEDURES AND STANDARDS. SINCE RECORD INDICATES PROTESTER RECEIVED ORAL NOTIFICATION THAT GOVERNMENT CONSIDERED SPECIFICATIONS SATISFACTORY THE SAME DAY WRITTEN RFP AMENDMENT WAS ISSUED SETTING FORTH DATE FOR SUBMISSION OF BEST AND FINAL OFFERS. ALLEGATION THAT SUCCESSFUL OFFEROR'S TECHNICALLY ACCEPTABLE PROPOSAL IS NONRESPONSIVE IS WITHOUT MERIT SINCE IN NEGOTIATED PROCUREMENTS NONRESPONSIVENESS IS GENERALLY CONSIDERED TO BE A SUBJECT OF NEGOTIATION AND IN ABSENCE OF EVIDENCE OF ARBITRARY ACTION.

B-182344, MAY 8, 1975

1. ALTHOUGH PROTESTER WHO SUBMITTED BEST AND FINAL OFFER INITIALLY PROTESTED TO AGENCY PRIOR TO THAT DATE THAT RFP'S SPECIFICATIONS FOR INTRUSION ALARM SYSTEM WERE DEFECTIVE, SUBSEQUENT PROTEST OF THIS ISSUE TO GAO MORE THAN 5 DAYS AFTER NOTIFICATION OF INITIAL ADVERSE AGENCY ACTION AND AWARD IS UNTIMELY UNDER INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 C.F.R. SEC. 20.2(A) (1974), SINCE RECORD INDICATES PROTESTER RECEIVED ORAL NOTIFICATION THAT GOVERNMENT CONSIDERED SPECIFICATIONS SATISFACTORY THE SAME DAY WRITTEN RFP AMENDMENT WAS ISSUED SETTING FORTH DATE FOR SUBMISSION OF BEST AND FINAL OFFERS, WITHOUT MAKING ANY CHANGE TO SPECIFICATIONS AS THE PROTESTER REQUESTED. 2. UNDER NEGOTIATED PROCUREMENT TO ENGINEER, FURNISH AND INSTALL A SECURITY ALARM SYSTEM, ALLEGATION THAT SUCCESSFUL OFFEROR'S TECHNICALLY ACCEPTABLE PROPOSAL IS NONRESPONSIVE IS WITHOUT MERIT SINCE IN NEGOTIATED PROCUREMENTS NONRESPONSIVENESS IS GENERALLY CONSIDERED TO BE A SUBJECT OF NEGOTIATION AND IN ABSENCE OF EVIDENCE OF ARBITRARY ACTION, THE DETERMINATION OF WHETHER ITEMS OFFERED MEET THE SPECIFICATIONS IS PROPERLY THE FUNCTION OF PROCURING AGENCY.

INTERNATIONAL RESEARCH ASSOCIATES:

INTERNATIONAL RESEARCH ASSOCIATES (IRA) PROTESTS THE AWARD OF A CONTRACT TO WELLS FARGO ALARM SERVICES (WELLS FARGO) UNDER REQUEST FOR PROPOSALS (RFP) MDA903-74-R-0042, AS AMENDED BY AMENDMENTS P0001 THROUGH P0008, ISSUED ON MARCH 29, 1974, BY THE DEFENSE SUPPLY SERVICE WASHINGTON (DSS- W).

THE SOLICITATION WAS A NEGOTIATED PROCUREMENT TO ENGINEER, FURNISH, AND INSTALL AN INTRUSION DETECTION SECURITY ALARM SYSTEM AT THE NATIONAL MILITARY COMMAND CENTER, LOCATED IN THE PENTAGON BUILDING, WASHINGTON, D.C. IT CALLED FOR INSTALLATION TO BEGIN ON APRIL 7, 1975, AND REQUIRED COMPLETION BY JULY 11, 1975. OFFERORS WERE EXPECTED TO CREATE THEIR OWN SYSTEMS IN ACCORDANCE WITH THE SPECIFICATIONS (STATEMENT OF WORK, AS AMENDED). IN THIS REGARD, SECTION 3.1.1.1 (STATEMENT OF WORK) STATED THAT THE SYSTEM SHOULD BE DESIGNED TO ECONOMICALLY PROVIDE THE BEST KNOWN PHYSICAL INTRUSION PROTECTION TO ASSIST THE GUARD FORCE IN MAINTAINING TOTAL SECURITY. OFFERORS WERE FURTHER ADVISED (RFP, SECTION D) THAT AFTER EVALUATION OF THE PROPOSALS, AWARD WOULD BE MADE IN THE BEST INTEREST OF THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. WHILE 44 SOURCES WERE SOLICITED, ONLY THREE PROPOSALS WERE RECEIVED AND EVALUATED FOR TECHNICAL ACCEPTABILITY. ONE OF THE PROPOSALS WAS DETERMINED TO BE TOTALLY UNACCEPTABLE; HOWEVER, THE PROPOSALS OF IRA AND WELLS FARGO, ALTHOUGH DEFICIENT, WERE FOUND TO BE CAPABLE OF BEING MADE ACCEPTABLE. THE LATTER FIRMS WERE REQUESTED TO CORRECT THE DEFICIENCIES NOTED IN THEIR PROPOSALS BY AUGUST 16, 1974. UPON RECEIPT AND EVALUATION OF THE REVISED TECHNICAL DATA, BOTH OFFERS WERE FOUND TO BE ACCEPTABLE. BY THE SEPTEMBER 23, 1974, DEADLINE FOR RECEIPT OF BEST AND FINAL OFFERS, WELLS FARGO SUBMITTED AN OFFER IN THE AMOUNT OF $179,276.09, AND IRA'S OFFER WAS $307,462.32. THE GOVERNMENT ESTIMATE WAS $252,000. THE CONTRACT WAS AWARDED TO WELLS FARGO ON SEPTEMBER 24, 1974.

IN PROTESTING THE AWARD, IRA ALLEGES THAT: (1) THE RFP'S SPECIFICATIONS WERE DEFECTIVE AND AMBIGUOUS SINCE THEY DID NOT PROPERLY DEFINE THE GOVERNMENT'S REQUIREMENTS; (2) WELLS FARGO'S OFFER WAS NONRESPONSIVE; AND (3) THE TECHNICAL EVALUATIONS BOARD WAS MADE AWARE OF EACH OFFEROR'S PRICE PRIOR TO THE PUBLICATION OF ITS FINAL EVALUATION.

THE SPECIFICATIONS REQUIRED OFFERORS TO ESTABLISH PROTECTIVE "ZONES" TO BE INCORPORATED IN THEIR PROPOSALS FOR THE INTRUSION DETECTION SYSTEM. THIS REGARD, SECTION 3.1.3.1.2 OF THE RFP'S STATEMENT OF WORK READ, IN PERTINENT PART:

"*** ON THE AVERAGE, EVERY NINE (9) DETECTORS WILL FORM A ZONE. *** A ZONE WILL HAVE ONE APPEARANCE ON THE MONITOR UNIT. THE INTENT IS TO KEEP THE ZONES SMALL SO THAT IMMEDIATE IDENTIFICATION AND EXACT BUILDING LOCATION OF A SPECIFIC ALARM CONDITION CAN BE DETERMINED AT THE MONITOR UNIT."

IRA MAINTAINS THAT THE SOLICITATION WAS DEFECTIVE BECAUSE IT FAILED TO INFORM OFFERORS OF THE EXACT NUMBER OF PROTECTIVE ZONES REQUIRED OR DESIRED BY THE GOVERNMENT AND THIS FACTOR DIRECTLY AFFECTED THE PRICE OF THE CONTRACT. IT ALLEGES (BY LETTER DATED OCTOBER 1, 1974) THAT THE GOVERNMENT'S TECHNICAL ADVISERS HAD INDICATED THAT A MINIMUM OF 83 ZONES WAS REQUIRED TO SATISFY THE PROCUREMENT'S REQUIREMENTS. HOWEVER, IN ITS SEPTEMBER 21, 1974, LETTER (PRIOR TO BEST AND FINAL OFFERS) TO DSS-W, IRA STATED IT BELIEVED THAT WELLS FARGO HAD INTERPRETED THE SPECIFICATIONS AS REQUIRING "SUBSTANTIALLY LESSER NUMBER OF ZONES WITH THE ATTENDANT LESSER AMOUNT OF EQUIPMENT AND CIRCUITRY NECESSARY TO MAINTAIN FULL SURVEILLANCE."

IRA ASSERTS THAT THE SUBMISSION OF A BEST AND FINAL OFFER DID NOT CHANGE ITS POSITION THAT THE SPECIFICATIONS WERE DEFECTIVE. IT ARGUES THIS WAS DONE TO PRESENT THE MINIMUM PRICE THAT IRA COULD AGREE TO PROVIDE A SYSTEM MEETING THE REQUIREMENTS OF THE SPECIFICATIONS UNDER ITS TECHNICAL APPROACH WHICH REQUIRED 90 ZONES. THE WELLS FARGO OFFER WAS BASED UPON THE USE OF 59 ZONES; THEREFORE, IRA CONTENDS THAT THE PROPOSALS WERE NOT EVALUATED ON THE SAME CRITERIA AND/OR THE EQUIPMENT OFFERED BY WELLS FARGO DID NOT PROVIDE FOR THE SPECIFIC DESIGN FEATURES SET FORTH IN THE SPECIFICATIONS.

THE REPORT ON THIS PROTEST FROM DSS-W NOTED THAT THE PROCUREMENT WAS NEGOTIATED AFTER THE DETERMINATION AND FINDINGS DATED JANUARY 31, 1974, CONCLUDED, IN PART, THAT THE USE OF FORMAL ADVERTISING WAS "IMPRACTICABLE BECAUSE OF THE HIGHLY TECHNICAL AND SPECIALIZED NATURE OF THE EQUIPMENT TO BE INSTALLED AND IT IS IMPOSSIBLE TO DRAFT, FOR SOLICITATION OF BIDS, ADEQUATE SPECIFICATIONS OR ANY OTHER ADEQUATELY DETAILED DESCRIPTION OF THE EQUIPMENT."

SUBSEQUENT TO ITS PROPOSAL BEING FOUND ACCEPTABLE BY A TECHNICAL EVALUATION BOARD, HELD ON AUGUST 19 AND 20, 1974, IRA QUESTIONED THE ADEQUACY OF THE SPECIFICATIONS BY LETTERS TO DSS-W DATED AUGUST 29, 1974, AND SEPTEMBER 4, 1974. THIS CORRESPONDENCE REQUESTED THAT A MEETING BE HELD TO CLARIFY THE GOVERNMENT'S MINIMUM REQUIREMENTS PRIOR TO EACH OFFEROR'S SUBMISSION OF A BEST AND FINAL OFFER.

ON SEPTEMBER 11, 1974, DSS-W PERSONNEL DETERMINED THAT THE ISSUES RAISED BY IRA'S LETTERS WERE WITHOUT MERIT. THEY BELIEVED THAT THE SPECIFICATIONS, ACCESS TO THE SITE, AND THE SITE SPECIFICATIONS AND DRAWINGS PROVIDED SUFFICIENT INFORMATION TO DETERMINE FOR PROPOSAL PREPARATION THE NECESSARY NUMBER OF ZONES. SIGNIFICANTLY, IT WAS CONSIDERED THAT THE BASIS FOR DETERMINING THE NUMBER OF ZONES TO BE PROPOSED WAS DEPENDENT UPON EACH OFFEROR'S APPROACH AND THE METHOD OF STRINGING THE WIRING TO FORM A ZONE. CONSEQUENTLY, THEY DID NOT GRANT IRA'S REQUEST FOR A CONFERENCE.

ON SEPTEMBER 16, 1974, DSS-W ISSUED RFP AMENDMENT P0008 WHICH STATED THE CLOSING DATE FOR RECEIPT OF BEST AND FINAL OFFERS WOULD BE SEPTEMBER 23, 1974. IN RESPONSE TO IRA'S ORAL INQUIRY ON SEPTEMBER 16, 1974, AS TO WHETHER ITS NUMBER OF ZONES SHOULD BE REDUCED, DSS-W STATES THAT THE PROCUREMENT AGENT INFORMED IRA THAT IT COULD NOT BE ADVISED ON THIS ASPECT OF ITS PROPOSAL, AND REQUESTED IRA TO SUBMIT A BEST AND FINAL OFFER. DSS- W FURTHER MAINTAINS THAT AT NO TIME WERE OFFERORS TOLD HOW MANY ZONES WERE TO BE OFFERED IN PROPOSALS.

WITH RESPECT TO ANY SUSPECTED AMBIGUITIES AND DEFICIENCIES IN SOLICITATIONS, OUR BID PROTEST PROCEDURES AND STANDARDS, 4 C.F.R. SEC. 20.2(A) (1974) REQUIRE 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. OTHER CASES, BID PROTESTS SHALL BE FILED NOT LATER THAN 5 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. IF A PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO THE GENERAL ACCOUNTING OFFICE FILED WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION WILL BE CONSIDERED PROVIDED THE INITIAL PROTEST TO THE AGENCY WAS MADE TIMELY."

WHILE IRA'S LETTERS OF AUGUST 29, 1974, AND SEPTEMBER 4, 1974, (SUPRA) PROTESTED THE ALLEGED DEFECTS IN THE SPECIFICATIONS WITH DSS-W PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS, ITS PROTEST TO OUR OFFICE ON THE ISSUES INVOLVED IN THE AGENCY PROTEST SHOULD HAVE BEEN FILED WITHIN 5 WORKING DAYS OF NOTIFICATION OF INITIAL ADVERSE AGENCY ACTION. SEE MATTER OF LEASCO INFORMATION PRODUCTS, INC., ET AL. 53 COMP. GEN. 932, 946 (1974). ON SEPTEMBER 16, 1974, IRA HAD ORAL NOTIFICATION THAT THE GOVERNMENT CONSIDERED THE SPECIFICATIONS TO BE ADEQUATE. ALSO, WE BELIEVE THAT ISSUANCE OF THE AMENDMENT ON THAT DATE CALLING FOR BEST AND FINAL OFFERS (NOTWITHSTANDING IRA'S REQUEST FOR A CONFERENCE) CONSTITUTED WRITTEN NOTIFICATION OF ADVERSE ACTION ON THE ISSUES PROTESTED. WHILE SUBMISSION OF A BEST AND FINAL OFFER BY IRA DID NOT AMOUNT TO A WAIVER OF ITS RIGHT TO LATER PROTEST TO OUR OFFICE, IRA'S PROTEST HAD TO BE FILED HERE NO LATER THAN SEPTEMBER 21, 1974. SEE MATTER OF EAST BAY AUTO SUPPLY, INC., ET AL, 53 COMP. GEN. 771 (1974). IRA TOOK NO FURTHER ACTION ON THIS ISSUE UNTIL AFTER AWARD, AND ITS PROTEST WAS NOT RECEIVED IN OUR OFFICE UNTIL OCTOBER 4, 1974. THUS, IRA'S PROTEST ON THIS ISSUE IS UNTIMELY AND SINCE WE DO NOT FIND THAT IT RAISES ANY ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES AND PROCEDURES, 52 COMP. GEN. 20 (1972), IT WILL NOT BE CONSIDERED.

OUR REVIEW OF THE ALLEGATIONS THAT WELLS FARGO'S OFFER WAS NONRESPONSIVE INDICATES THAT IRA'S POSITION REGARDING THE ISSUE OF RESPONSIVENESS IS BASED ON PRINCIPLES APPLICABLE TO "ADVERTISED" RATHER THAN "NEGOTIATED" PROCUREMENTS AND IS, THEREFORE, WITHOUT MERIT. IN A NEGOTIATED PROCUREMENT, "NONRESPONSIVENESS" IS GENERALLY CONSIDERED TO BE A SUBJECT OF NEGOTIATION. 51 COMP. GEN. 247, 250 (1971). REGARDING THE EXTENT OF NEGOTIATIONS, WE HAVE STATED THAT UNLESS INITIALLY UNACCEPTABLE PROPOSALS ARE FOUND NOT SUBJECT TO BEING MADE ACCEPTABLE, EXCEPT THROUGH MAJOR REVISIONS, PROSPECTIVE CONTRACTORS SHOULD BE AFFORDED AN OPPORTUNITY TO SATISFY THE REQUIREMENTS OF THE GOVERNMENT. 51 COMP. GEN. 431 (1972). SEE ARMED SERVICES PROCUREMENT REGULATION SEC. 3-805.1(B) (1974 ED.).

DSS-W DETERMINED THAT WELLS FARGO'S BEST AND FINAL OFFER MET THE REQUIREMENTS OF THE RFP. IT HAS LONG BEEN THE POSITION OF OUR OFFICE THAT THE DRAFTING OF SPECIFICATIONS TO MEET THE GOVERNMENT'S MINIMUM NEEDS, AS WELL AS THE DETERMINATION OF WHETHER ITEMS OFFERED MEET THE SPECIFICATIONS, IS PROPERLY THE FUNCTION OF THE PROCURING AGENCY, ABSENT ARBITRARY ACTION. 52 COMP. GEN. 393, 399 (1972), B-169633(1), JANUARY 4, 1972. THERE HAS BEEN NO SUCH SHOWING OF ARBITRARY ACTION IN THIS CASE. MOREOVER, WE HAVE ALSO HELD THAT THE SELECTION OF THE LOWEST-PRICED, TECHNICALLY ACCEPTABLE OFFER FOR AWARD INSTEAD OF A HIGHER-PRICED, ALLEGEDLY TECHNICALLY SUPERIOR OFFER IS NOT AN ABUSE OF THE BROAD DISCRETION VESTED IN PROCUREMENT PERSONNEL IN SELECTING A SUCCESSFUL OFFEROR IN A NEGOTIATED PROCUREMENT. MATTER OF DAVIDSON OPTRONICS, INC., B-179925, FEBRUARY 22, 1974.

FINALLY, WE HAVE FOUND NO EVIDENCE IN THE RECORD BEFORE OUR OFFICE TO INDICATE THAT THE TECHNICAL EVALUATION BOARD HAD KNOWLEDGE OF THE OFFEROR'S PRICES PRIOR TO THE PUBLICATION OF ITS TECHNICAL EVALUATION OF PROPOSALS.

ACCORDINGLY, THE PROTEST IS DENIED.