B-199201, OCT 10, 1980

B-199201: Oct 10, 1980

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DIGEST: PROTEST THAT SUCCESSFUL OFFEROR DID NOT POSSESS REQUIRED TEMPEST QUALIFICATION ON PROPOSAL DUE DATE IS DENIED AS REVIEW OF RECORD DISCLOSES NEITHER SUCCESSFUL OFFEROR NOR PROTESTER HAD QUALIFICATION UNTIL AFTER PROPOSALS WERE DUE AND PROTESTER WAS NOT PREJUDICED BY WAIVER OF REQUIREMENT. THE SOLICITATION WAS FOR THE LEASE OF 70 TEMPEST WORD PROCESSING SYSTEMS. CPT'S PROTEST IS BASED ON THE ALLEGATION THAT LEXITRON DID NOT COMPLY WITH THIS SECTION OF THE SOLICITATION AND. WAS TECHNICALLY UNACCEPTABLE AND INELIGIBLE FOR AWARD. PROPOSALS WERE DUE ON MAY 14. IT HAS RECEIVED TQS ACCREDITATION AS HAVING MET ALL THE APPLICABLE REQUIREMENTS OF NACSEM 5100 AND WILL BE INCLUDED IN THE MAY ISSUE OF THE PREFERRED PRODUCTS LIST.".

B-199201, OCT 10, 1980

DIGEST: PROTEST THAT SUCCESSFUL OFFEROR DID NOT POSSESS REQUIRED TEMPEST QUALIFICATION ON PROPOSAL DUE DATE IS DENIED AS REVIEW OF RECORD DISCLOSES NEITHER SUCCESSFUL OFFEROR NOR PROTESTER HAD QUALIFICATION UNTIL AFTER PROPOSALS WERE DUE AND PROTESTER WAS NOT PREJUDICED BY WAIVER OF REQUIREMENT.

CPT CORPORATION:

CPT CORPORATION (CPT) HAS PROTESTED THE AWARD OF A CONTRACT TO LEXITRON CORPORATION BY THE DEFENSE SUPPLY SERVICE (DSS) UNDER SOLICITATION NO. MDA 903-80-R-0097.

THE SOLICITATION WAS FOR THE LEASE OF 70 TEMPEST WORD PROCESSING SYSTEMS. SECTION "M-2" OF THE SPECIFICATIONS STATED:

"M-2 TECHNICAL EVALUATION

"(A) ALL TECHNICAL PROPOSALS RECEIVED MUST MEET THE FOLLOWING MANDATORY REQUIREMENTS:

"(I) MEET NACSEM 5100 TEMPEST STANDARD BY DATE OF OPENING."

CPT'S PROTEST IS BASED ON THE ALLEGATION THAT LEXITRON DID NOT COMPLY WITH THIS SECTION OF THE SOLICITATION AND, THEREFORE, WAS TECHNICALLY UNACCEPTABLE AND INELIGIBLE FOR AWARD.

PROPOSALS WERE DUE ON MAY 14, 1980. CPT RECEIVED A LETTER FROM THE TEMPEST QUALIFICATION SUBCOMMITTEE (TQS), DATED MAY 1, 1980, WHICH STATED, IN PART:

"THE TEMPEST QUALIFICATION SUBCOMMITTEE HAS REVIEWED ALL THE AVAILABLE DOCUMENTATION ON THE CPT 8000T WORD PROCESSING SYSTEM AND, AS A RESULT, IT HAS RECEIVED TQS ACCREDITATION AS HAVING MET ALL THE APPLICABLE REQUIREMENTS OF NACSEM 5100 AND WILL BE INCLUDED IN THE MAY ISSUE OF THE PREFERRED PRODUCTS LIST."

LEXITRON RECEIVED A SIMILAR LETTER DATED MAY 27, 1980, EXCEPT THAT THE LETTER STATED THE LEXITRON PRODUCT WOULD BE INCLUDED IN THE JUNE ISSUE OF THE PREFERRED PRODUCTS LIST.

CPT ARGUES THAT, SINCE LEXITRON WAS NOT APPROVED UNTIL AFTER MAY 14, 1980, CPT WAS THE ONLY ACCEPTABLE OFFEROR.

THE DSS HAS ADVISED OUR OFFICE THAT AS OF THE DUE DATE FOR PROPOSALS NEITHER LEXITRON NOR CPT WAS ACCREDITED. THE CHAIRMAN OF THE TQS HAS INFORMED THE CONTRACTING OFFICER THAT THE LETTERS DATED MAY 1 AND 27, 1980, WERE NOT STATEMENTS OF TEMPEST APPROVAL BUT RECOMMENDATIONS FOR APPROVAL. ONLY THE SPECIAL COMMITTEE ON COMPROMISING EMANATIONS (SCOCE) CAN PLACE A FIRM ON THE PREFERRED PRODUCTS LIST. BOTH FIRMS WERE APPROVED BY SCOCE ON THE SAME DATE, JUNE 3, 1980.

SINCE NEITHER CPT NOR LEXITRON MET THE REQUIREMENT OF THE SOLICITATION TO BE QUALIFIED FOR THE TEMPEST STANDARD AS OF THE PROPOSAL DUE DATE, WE FAIL TO SEE WHERE CPT WAS PREJUDICED AS NEITHER IT NOR LEXITRON WAS QUALIFIED BY THE REQUIRED DATE. WHILE AN AMENDMENT TO THE REQUEST FOR PROPOSALS WOULD HAVE BEEN APPROPRIATE TO CHANGE THE QUALIFICATION DATE, IT DOES NOT APPEAR THAT WOULD HAVE AFFECTED THE RESULT OF THE COMPETITION. CPT HAS INDICATED THAT IT DID NOT KNOW BEFORE SUBMITTING AN OFFER WHOSE EQUIPMENT WAS ON THE PREFERRED PRODUCTS LIST AND THAT IT WOULD HAVE KNOWN NO MORE ABOUT THE EQUIPMENT OR THE AMOUNT OF EQUIPMENT APPROVED FOR COMPETITION AFTER AN AMENDMENT THAN IT WOULD HAVE KNOWN BEFORE AN AMENDMENT. FURTHER, NO ONE OTHER THAN LEXITRON AND CPT HAD EQUIPMENT MEETING THE SOLICITATION REQUIREMENTS QUALIFIED FOR THE TEMPEST STANDARD BEFORE AWARD. THUS, THERE WAS NO PREJUDICE TO ANY OTHER COMPANY.

THE PROTEST IS DENIED.