B-205867, AUG 24, 1982

B-205867, AUG 24, 1982

DIGEST: 1. AGENCY DETERMINATION THAT PROPOSAL IS TECHNICALLY UNACCEPTABLE FOR FAILURE TO MEET EXPERIENCE REQUIREMENT IS REASONABLE SINCE SOLICITATION REQUIRED THAT EXPERIENCE MUST CONSIST OF PERFORMANCE AS SYSTEMS MANAGER DURING THE INSTALLATION OF THREE DIGITAL COMPUTER SYSTEMS, WHICH AGENCY DETERMINED WAS NOT MET BY COMPLAINANT'S PROPOSAL OR SUBSEQUENTLY AMENDED PROPOSAL. 2. OBJECTION TO USE OF SOLICITATION EXPERIENCE REQUIREMENT AS OVERLY RESTRICTIVE IS NOT FOR CONSIDERATION BECAUSE IT CONCERNS AN ALLEGED APPARENT SOLICITATION IMPROPRIETY WHICH MUST BE FILED PRIOR TO THE CLOSING DATE FOR THE RECEIPT OF PROPOSALS, BUT WAS NOT FILED UNTIL AFTER PROPOSAL FOR PROCUREMENT UNDER FEDERAL GRANT WAS FOUND TECHNICALLY UNACCEPTABLE.

STEINY-VOORHEES:

STEINY AND COMPANY, INC. (STEINY), HAS FILED A COMPLAINT CONCERNING THE DETERMINATION BY THE NEVADA DEPARTMENT OF TRANSPORTATION (NDOT) THAT STEINY AND A STEINY-VOORHEES JOINT VENTURE WERE UNACCEPTABLE BECAUSE THEY DID NOT MEET THE EXPERIENCE REQUIREMENTS UNDER A SOLICITATION FOR PROJECT NO. M-170(18). THIS SOLICITATION IS FOR THE CONSTRUCTION OF AN AREAWIDE COMPUTERIZED TRAFFIC CONTROL SYSTEM AND THE MODIFICATION OF EXISTING TRAFFIC SIGNAL SYSTEMS IN LAS VEGAS, NEVADA, PURSUANT TO A GRANT BY THE FEDERAL HIGHWAY ADMINISTRATION. OUR REVIEW IS UNDERTAKEN PURSUANT TO OUR NOTICE, ENTITLED "REVIEW OF COMPLAINTS CONCERNING CONTRACTS UNDER FEDERAL GRANTS," 40 FED.REG. 42406 (1975). CONSISTENT WITH THE STATUTORY OBLIGATION OF THIS OFFICE TO INVESTIGATE THE RECEIPT, DISBURSEMENT, AND APPLICATION OF PUBLIC FUNDS, WE CONSIDER COMPLAINTS CONCERNING CONTRACTS AWARDED UNDER FEDERAL GRANTS.

WE FIND STEINY'S COMPLAINT WITHOUT MERIT.

NDOT CONDUCTED THE PROCUREMENT UNDER A TWO-STEP FORMAL ADVERTISING PROCEDURE. SIX FIRMS, INCLUDING STEINY, RESPONDED TO THE FIRST STEP WHICH INVITED THE SUBMISSION OF DESIGN PROPOSALS. FIVE OF THE FIRMS WERE DETERMINED TO HAVE SUBMITTED ACCEPTABLE PROPOSALS AND WERE INVITED TO SUBMIT BIDS. STEINY WAS FOUND UNACCEPTABLE FOR FAILURE TO MEET THE EXPERIENCE REQUIREMENT CONTAINED IN THE SOLICITATION, AND WAS NOT PERMITTED TO SUBMIT A BID.

SECTION 1.3.2.8.2 OF THE SOLICITATION REQUIRED BIDDERS TO DESCRIBE THEIR SPECIFIC EXPERIENCE, IDENTIFYING AND DESCRIBING, AMONG OTHER THINGS, RECENT COMPUTER CONTROL SYSTEM INSTALLATION EXPERIENCE SIMILAR TO THE PROPOSED PROJECT. SECTION 1.4.2 OF THE SOLICITATION STATED THAT:

"THE CONTRACTOR SHALL BE CAPABLE OF DESIGNING AND ACTING AS THE SYSTEMS MANAGER DURING THE INSTALLATION OF THE DIGITAL COMPUTER CONTROL SYSTEMS AND SHALL: (1) HAVE ACTED AS THE SYSTEMS MANAGER DURING THE INSTALLATION OF AT LEAST THREE DIGITAL COMPUTER SYSTEMS; (2) HAVE BEEN AND/OR IS CURRENTLY RESPONSIBLE FOR PROVIDING SATISFACTORY MAINTENANCE AND OPERATIONAL SUPPORT ON A TRAFFIC CONTROL SYSTEM SIMILAR IN NATURE TO THE TYPE PROPOSED AND MEET AT LEAST ONE OF THE FOLLOWING REQUIREMENTS:

". A MANUFACTURER OF A MAJOR PORTION OF THE EQUIPMENT DEFINED BY SPECIFICATIONS, OR

". AN ESTABLISHED AND RECOGNIZED SIGNAL EQUIPMENT MANUFACTURER, OR

". A SYSTEM ENGINEERING ORGANIZATION WITH DOCUMENTED ACCEPTABLE EXPERIENCE IN TRAFFIC SIGNAL CONTROL SYSTEMS. "CONTRACTOR SHALL ALSO BE CAPABLE OF SATISFYING SECTION 2.5.2 OF THESE SPECIFICATIONS." SECTION 2.5.2 STATED THAT:

"THE CONTRACTOR WILL SERVE AS THE SYSTEMS MANAGER FOR THE PROJECT, BEING RESPONSIBLE FOR ALL TASKS RELATED TO THE DESIGN, PROCUREMENT, ASSEMBLY, TESTING, INSTALLATION, INITIAL OPERATION, AND INITIAL MAINTENANCE OF THE SYSTEM. AS SUCH, HE WILL DIRECT, COORDINATE, REVIEW, MONITOR, AND CONTROL THE PROJECT EFFORT TO MAINTAIN A PROJECT SCHEDULE AND INSURE TIMELY COMPLETION. SHALL PROVIDE LIAISON WITH THE ENGINEER, AND PROVIDE FREQUENT PROJECT STATUS REPORTS AS REQUIRED."

NDOT DETERMINED THAT IT WAS UNABLE TO DOCUMENT THAT STEINY HAD ACTED AS "SYSTEMS MANAGER" FOR THREE OTHER PROJECTS AS REQUIRED UNDER THE SOLICITATION. STEINY OBJECTED TO THIS DETERMINATION AND SUBMITTED COPIES TO NDOT OF CONTRACTS FOR FIVE DIGITAL COMPUTER SYSTEMS WHICH IT HAD COMPLETED IN ORDER TO ATTEMPT TO ESTABLISH THAT IT MET THE EXPERIENCE REQUIREMENTS. NDOT REVIEWED THE MATERIAL AND AGAIN CONCLUDED THAT THE SUBMISSION DID NOT PROVIDE EVIDENCE THAT THE FIRM HAD FULFILLED THE ROLE OF "SYSTEMS MANAGER," AS DEFINED IN THE SPECIFICATIONS. HOWEVER, STEINY WAS PERMITTED TO SUBMIT AN AMENDED DESIGN PROPOSAL AS A JOINT VENTURE, WITH THE PROVISION THAT THE AMENDED PROPOSAL WOULD HAVE TO BE FOUND ACCEPTABLE BEFORE IT WOULD BE PERMITTED TO SUBMIT A BID.

AN AMENDED PROPOSAL WAS SUBMITTED BY STEINY-VOORHEES BUT NDOT AGAIN DETERMINED THAT THE EXPERIENCE REQUIREMENT HAD NOT BEEN SATISFIED. STEINY WAS ADVISED OF THE DETERMINATION ON DECEMBER 2, 1981. STEINY PROTESTED THE DETERMINATION TO NDOT ON THE SAME DATE, 1 DAY PRIOR TO THE CLOSING DATE FOR THE RECEIPT OF BIDS. TWO BIDS WERE SUBMITTED, AND AWARD WAS MADE TO SPERRY CORPORATION. STEINY'S ASSERTION IS THAT NDOT ACTED CAPRICIOUSLY AND VIOLATED THE REQUIREMENT TO EVALUATE THE BIDDERS IN TERMS OF THE REQUIREMENTS STATED IN THE SOLICITATION. ESSENTIALLY, STEINY IS ARGUING THAT BOTH STEINY AND THE STEINY-VOORHEES JOINT VENTURE MEET THE EXPERIENCE REQUIREMENT CONTAINED IN THE SOLICITATION, CONTRARY TO THE AGENCY DETERMINATION THAT THEY DO NOT. IN PARTICULAR, STEINY CONTENDS THAT NDOT "NARROWED THE DEFINITION OF SYSTEMS MANAGER FROM THAT CONTAINED IN THE SPECIFICATIONS TO REQUIRE THAT THE PROPOSED BIDDER HAVE PERFORMED ON AT LEAST THREE PROJECTS SYSTEMS MANAGEMENT WITH ITS OWN FORCES AND PERSONNEL OF A CENTRAL DIGITAL COMPUTER CONTROL SYSTEM, A PART OF AN OVERALL TRAFFIC CONTROL SYSTEM." STEINY ALSO ASSERTS THAT THIS DEFINITION IS OVERLY NARROW AND "ESTABLISHES A PROPRIETARY ELEMENT IN THE BIDDING PROCESS BY LIMITING PROSPECTIVE BIDDERS ONLY TO THOSE PARTIES THAT ARE ONLY ENGAGED IN THE DIGITAL COMPUTER CONTROL BUSINESS AND NOT PERMITTING CONTRACTORS SUCH AS STEINY AND COMPANY TO DELEGATE THAT FUNCTION TO COMPETENT SUBCONTRACTORS AND TECHNICIANS."

IN REVIEWING A PROCURING AGENCY'S EVALUATION OF TECHNICAL PROPOSALS, OUR OFFICE WILL NOT MAKE AN INDEPENDENT DETERMINATION OF THE TECHNICAL ACCEPTABILITY OF A PROPOSAL, NOR WILL WE SUBSTITUTE OUR JUDGMENT FOR THE AGENCY'S DETERMINATION OF WHICH PROPOSALS ARE TECHNICALLY ACCEPTABLE ABSENT A CLEAR SHOWING THAT THE ACTION IS ARBITRARY OR UNREASONABLE, OR IN VIOLATION OF PROCUREMENT STATUTES OR REGULATIONS. JOULE TECHNICAL CORPORATION, B-197249, SEPTEMBER 30, 1980, 80-2 CPD 231. THE PROTESTER'S DISAGREEMENT WITH THE AGENCY'S DETERMINATION OF WHAT EXPERIENCE WILL SATISFY ITS NEEDS IS NOT SUFFICIENT TO ESTABLISH ARBITRARY ACTION BY THE AGENCY. SDC INTEGRATED SERVICES, INC., B-195624, JANUARY 15, 1980, 80-1 CPD 44.

THE PREVIOUSLY QUOTED EXPERIENCE REQUIREMENT MANDATES THAT THE OFFEROR DEMONSTRATE EXPERIENCE AS SYSTEMS MANAGER DURING THE INSTALLATION OF AT LEAST THREE DIGITAL COMPUTER SYSTEMS, AND MEET AT LEAST ONE OF THREE ADDITIONAL REQUIREMENTS, ONE OF WHICH IS TO BE A SYSTEMS ENGINEERING ORGANIZATION WITH DOCUMENTED ACCEPTABLE EXPERIENCE IN TRAFFIC SYSTEM CONTROL SYSTEMS. STEINY'S ARGUMENT IS, IN EFFECT, THAT IN VIEW OF ITS SYSTEMS ENGINEERING EXPERIENCE IT MEETS THE SYSTEMS MANAGER REQUIREMENT FOR THE INSTALLATION OF A DIGITAL COMPUTER SYSTEM. HOWEVER, THIS IS CLEARLY INCONSISTENT WITH THE EXPRESSLY STATED TERMS OF THE SOLICITATION WHICH TREAT THESE TWO AS DISJUNCTIVE REQUIREMENTS, THAT IS, ONE OF THE THREE ALTERNATES MUST BE FULFILLED IN ADDITION TO MEETING THE SYSTEMS MANAGER EXPERIENCE REQUIREMENT. THUS, WE FIND THAT NDOT'S INTERPRETATION OF THE SYSTEMS MANAGER EXPERIENCE REQUIREMENT WAS A REASONABLE INTERPRETATION OF THE SOLICITATION LANGUAGE. IN ADDITION, WE NOTE THAT ALTHOUGH STEINY POINTED OUT THAT IT HAD PREVIOUSLY "DELEGATED OR SUBCONTRACTED SOME OF OUR RESPONSIBILITY" UNDER PRIOR CONTRACTS IN AN ATTEMPT TO SHOW THAT IT MET THE SYSTEMS MANAGER REQUIREMENT, NDOT FOUND THIS UNACCEPTABLE TO MEET THE REQUIREMENT.

TO THE EXTENT THAT STEINY IS ASSERTING THAT THE SYSTEMS MANAGER EXPERIENCE REQUIREMENT IS OVERLY RESTRICTIVE, ITS PROTEST IS NOT FOR CONSIDERATION. THIS ISSUE WAS FIRST RAISED BY STEINY AFTER ITS DESIGN PROPOSAL WAS FOUND UNACCEPTABLE AND QUESTIONS THE PROPRIETY OF THE AGENCY USE OF AN EVALUATION CRITERION IN THE SOLICITATION. UNDER OUR BID PROTEST PROCEDURES, APPLICABLE IN THE DIRECT FEDERAL PROCUREMENT AREA, ALLEGED IMPROPRIETIES IN ANY SOLICITATION WHICH ARE APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS MUST BE CONTESTED PRIOR TO THAT CLOSING DATE TO BE CONSIDERED, WHICH WE HAVE APPLIED TO GRANT PROCUREMENTS AS A REASONABLE STANDARD. 4 C.F.R. SEC. 21.2(B)(1) (1981); SEE IN THIS REGARD, VALLEY FOOD, B-205485, DECEMBER 7, 1981, 81-2 CPD 444.

IN ITS INITIAL PROTEST, STEINY MADE OTHER COLLATERAL ALLEGATIONS WHICH THE AGENCY DIRECTLY CONTRADICTED IN ITS REPORT, AND WHICH STEINY HAS NOT ADDRESSED, AND THUS APPEARS TO HAVE DROPPED IN ITS RESPONSE TO THE AGENCY REPORT.

WE DENY THE COMPLAINT IN PART AND DISMISS IT IN PART.