B-211511, DEC 27, 1983

B-211511: Dec 27, 1983

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PROCURING ACTIVITY'S REJECTION OF A TECHNICAL PROPOSAL UNDER THE FIRST STEP OF A TWO-STEP PROCUREMENT WAS PROPER WHERE THE PROCURING ACTIVITY DID NOT HOLD DISCUSSIONS WITH THE OFFEROR PRIOR TO REJECTION OF THE PROPOSAL BECAUSE THE PROCURING ACTIVITY DETERMINED THE PROPOSAL NOT TO BE REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE IN VIEW OF THE FACT THAT THE OFFEROR PROPOSED A SOFTWARE PROGRAMMING LANGUAGE OTHER THAN THOSE REQUIRED BY THE SPECIFICATIONS AND THE CLARIFICATION THERETO. 2. PROCURING ACTIVITY PROPERLY DETERMINED THE AWARDEE'S TECHNICAL PROPOSAL TO BE ACCEPTABLE WHERE MANDATORY REQUIREMENTS IN THE SOLICITATION WERE CLARIFIED IN AN AMENDMENT TO THE SOLICITATION TO PERMIT OFFERORS TO PROPOSE "SEEK TIMES" IN EXCESS OF THOSE ALLOWED BY THE REQUIREMENTS AS LONG AS THE OFFEROR'S SYSTEM RESULTED IN AN ACCEPTABLE EQUIVALENT PERFORMANCE TAKING INTO CONSIDERATION OTHER COMPENSATING FACTORS. 3.

B-211511, DEC 27, 1983

DIGEST: 1. PROCURING ACTIVITY'S REJECTION OF A TECHNICAL PROPOSAL UNDER THE FIRST STEP OF A TWO-STEP PROCUREMENT WAS PROPER WHERE THE PROCURING ACTIVITY DID NOT HOLD DISCUSSIONS WITH THE OFFEROR PRIOR TO REJECTION OF THE PROPOSAL BECAUSE THE PROCURING ACTIVITY DETERMINED THE PROPOSAL NOT TO BE REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE IN VIEW OF THE FACT THAT THE OFFEROR PROPOSED A SOFTWARE PROGRAMMING LANGUAGE OTHER THAN THOSE REQUIRED BY THE SPECIFICATIONS AND THE CLARIFICATION THERETO. 2. PROCURING ACTIVITY PROPERLY DETERMINED THE AWARDEE'S TECHNICAL PROPOSAL TO BE ACCEPTABLE WHERE MANDATORY REQUIREMENTS IN THE SOLICITATION WERE CLARIFIED IN AN AMENDMENT TO THE SOLICITATION TO PERMIT OFFERORS TO PROPOSE "SEEK TIMES" IN EXCESS OF THOSE ALLOWED BY THE REQUIREMENTS AS LONG AS THE OFFEROR'S SYSTEM RESULTED IN AN ACCEPTABLE EQUIVALENT PERFORMANCE TAKING INTO CONSIDERATION OTHER COMPENSATING FACTORS. 3. CLAIM FOR PROPOSAL PREPARATION COSTS IS DENIED WHERE THERE IS NO SHOWING THAT THE GOVERNMENT ACTED ARBITRARILY OR CAPRICIOUSLY IN REJECTING THE PROPOSAL.

BURROUGHS CORPORATION:

BURROUGHS CORPORATION (BURROUGHS) PROTESTS THE REJECTION OF ITS PROPOSAL AS TECHNICALLY UNACCEPTABLE AND THE AWARD OF A CONTRACT UNDER REQUEST FOR TECHNICAL PROPOSALS (RFTP) NO. 7-AMS-83(W), ISSUED BY THE AGRICULTURAL MARKETING SERVICE (AMS), DEPARTMENT OF AGRICULTURE (AGRICULTURE), TO SPERRY UNIVAC FOR MINICOMPUTERS. THE RFTP WAS THE FIRST STEP OF A TWO- STEP PROCUREMENT.

WE DENY THE PROTEST AND THE CLAIM FOR PROPOSAL PREPARATION COSTS.

AS A RESULT OF VENDOR INQUIRIES, AMS MADE SEVERAL AMENDMENTS AND CLARIFICATIONS TO THE RFTP BEFORE OFFERORS SUBMITTED TECHNICAL PROPOSALS. AMS RECEIVED FOUR PROPOSALS FOR TECHNICAL APPROVAL. UPON COMPLETION OF THE TECHNICAL REVIEW, BURROUGHS' PROPOSAL WAS DETERMINED TECHNICALLY UNACCEPTABLE. AMS THEN RECEIVED BIDS UNDER THE SECOND STEP OF THE SOLICITATION AND MADE AWARD TO SPERRY UNIVAC.

THE TECHNICAL EVALUATION TEAM DETERMINED BURROUGHS' PROPOSAL TO BE TECHNICALLY UNACCEPTABLE FOR TWO REASONS. FIRST, SECTION C.110.5 OF THE RFTP, ENTITLED "ASSEMBLER OR SYSTEM PROGRAMMING LANGUAGE," REQUIRED SOFTWARE TO PERMIT PROGRAMMING STATEMENTS TO REFERENCE HARDWARE INSTRUCTION ON A ONE-TO-ONE BASIS. IN AMENDMENT NO. A-02, THE TEAM HAD STATED THAT SYSTEM DEVELOPMENT LANGUAGE (SDL) OR ANOTHER PROGRAMMING LANGUAGE WOULD BE ACCEPTABLE. BURROUGHS OFFERED USER PROGRAMMING LANGUAGE (UPL), A SUBSET OF SDL, AS ITS PROGRAMMING LANGUAGE, AND THE TEAM FOUND UPL TO BE UNACCEPTABLE. SECOND, C.109.5 OF THE RFTP, ENTITLED "FILE SYSTEM-ITEM G," REQUIRED INDEXED SEQUENTIAL ACCESS FILE STRUCTURE CAPABILITY FOR 3,000,000 RECORDS OF 38 BYTES EACH. THE TEAM DETERMINED THAT THIS REQUIREMENT WAS NOT MET BECAUSE BURROUGHS OFFERED A RECORD OF 30 BYTES, INSTEAD OF 38 BYTES.

BURROUGHS CONTENDS THAT AMS VIOLATED FEDERAL PROCUREMENT REGULATIONS (FPR) SEC. 1-2.503-1(B)(4) (1964 ED. CIRC. 1) BY NOT DISCUSSING THE ALLEGED DEFICIENCIES IN BURROUGHS' PROPOSAL WITH BURROUGHS AND GIVING BURROUGHS THE OPPORTUNITY TO BRING ITS PROPOSAL TO ACCEPTABLE STATUS BEFORE REJECTING BURROUGHS' PROPOSAL AS TECHNICALLY UNACCEPTABLE. FPR SEC. 1-2.503-1(B)(4) PROVIDES:

"TECHNICAL PROPOSALS WILL BE CATEGORIZED AS ACCEPTABLE OR UNACCEPTABLE. PROPOSALS WILL NOT BE CATEGORIZED AS UNACCEPTABLE WHEN A REASONABLE EFFORT ON THE PART OF THE GOVERNMENT COULD BRING THE PROPOSALS TO AN ACCEPTABLE STATUS AND INCREASE COMPETITION. THE CONTRACTING OFFICER SHALL ARRANGE FOR ANY NECESSARY DISCUSSIONS WITH SOURCES SUBMITTING TECHNICAL PROPOSALS FOR THE PURPOSE OF OBTAINING ADDITIONAL INFORMATION OR CLARIFICATION WHICH MAY BE REQUIRED. WHEN, AFTER DISCUSSION AND SUBMISSION OF NECESSARY INFORMATION AND CLARIFICATION, TECHNICAL PROPOSALS ARE DETERMINED TO BE ACCEPTABLE, THEY WILL BE SO CATEGORIZED. IF, HOWEVER, IT IS DETERMINED AT ANY TIME THAT A TECHNICAL PROPOSAL IS NOT REASONABLY SUSCEPTIBLE TO BEING MADE ACCEPTABLE, IT SHOULD BE CLASSIFIED AS UNACCEPTABLE AND NO DISCUSSIONS OF IT NEED THEREAFTER BE INITIATED."

SPECIFICALLY, BURROUGHS CLAIMS THAT IT COULD HAVE CLARIFIED ITS RESPONSES TO SECTIONS C.110.5 AND C.109.5 SO AS TO BRING ITS PROPOSAL IN COMPLIANCE WITH THE RFTP IF AMS HAD CONDUCTED DISCUSSIONS WITH BURROUGHS BEFORE REJECTING BURROUGHS' PROPOSAL. BURROUGHS THUS CONTENDS THAT AMS REJECTED ITS PROPOSAL IN AN ARBITRARY AND CAPRICIOUS MANNER.

IN ADDITION, BURROUGHS CONTENDS THAT AMS IMPROPERLY ACCEPTED SPERRY UNIVAC'S PROPOSAL WHICH SHOULD HAVE BEEN FOUND TECHNICALLY UNACCEPTABLE.

CONCERNING BURROUGHS' ARGUMENT THAT DISCUSSIONS SHOULD HAVE BEEN HELD WITH IT PRIOR TO AMS REJECTING ITS PROPOSAL, THE RECORD REFLECTS THAT AMS NOTIFIED BURROUGHS BY LETTER OF APRIL 5, 1983, THAT ITS PROPOSAL WAS CONSIDERED TECHNICALLY UNACCEPTABLE AND WOULD NOT BE CONSIDERED FOR THE SECOND STEP. FOLLOWING RECEIPT OF THIS NOTICE, BURROUGHS REQUESTED A MEETING WITH AMS TO DISCUSS THE TWO PORTIONS OF ITS PROPOSAL FOUND UNACCEPTABLE. A MEETING WAS HELD ON APRIL 11, 1983, AND, ON APRIL 14, BURROUGHS SUBMITTED A LETTER EXPLAINING ITS PROPOSAL TO AMS, BUT AMS CONTINUED TO FIND THE PROPOSAL TECHNICALLY UNACCEPTABLE.

CONCERNING FPR SEC. 1-2.503-1(B)(4), WE HAVE HELD THAT THIS PROVISION INVESTS IN THE TECHNICAL AND PROCUREMENT PERSONNEL CONSIDERABLE LATITUDE IN FRAMING THE REQUIREMENTS TO BE MET BY PROPOSALS AND IN THEIR EVALUATION. WHETHER A PROPOSAL NEEDS CLARIFICATION TO BE DEEMED ACCEPTABLE AND 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. METIS CORPORATION, 54 COMP.GEN. 612 (1975), 75-1 CPD 44.

WITH REGARD TO THE REQUIREMENT FOR SOFTWARE PROGRAMMING LANGUAGE, SECTION C.110.5, WHILE BURROUGHS ADMITS THAT UPL IS A SUBSET OF SDL, BURROUGHS CLAIMS UPL BECOMES SDL WITH THE INHIBITING OF ONE COMMAND WHICH WAS READILY AVAILABLE TO THE GOVERNMENT. BURROUGHS ARGUES THAT SECTION C.110.5 ONLY REQUIRES THE OFFEROR TO PROVIDE A "MICRO CAPABILITY OR AN EQUIVALENT PROCEDURE-ORIENTED FORM OF CODE GENERATION MECHANISM," AND THAT BOTH UPL AND SDL MEET THIS REQUIREMENT. BURROUGHS ALSO CONTENDS THAT THE MAIN DIFFERENCE BETWEEN UPL AND SDL RELATES TO THE ABILITY TO CHANGE AND DEVELOP OPERATING SYSTEMS, BUT THAT THIS CAPABILITY EXCEEDS THE REQUIREMENT. BURROUGHS FURTHER ARGUES THAT IT COULD HAVE SUPPLIED EITHER SDL OR UPL. FINALLY, BURROUGHS CLAIMS THAT AT ITS MEETING WITH AMS, IT ASSURED AMS THAT ITS SOFTWARE PACKAGE COULD MEET THE REQUIREMENT, INCLUDING ATTACHMENT OF UNIQUE AGRICULTURE DEVELOPED TERMINAL DEVICES.

AMS CONTENDS THAT THE TEAM ANSWERED A QUESTION AS PART OF AMENDMENT NO. A -02 TO CLARIFY THE REQUIREMENT AND THEREIN STATED THAT SDL AND ANOTHER PROGRAMMING LANGUAGE WOULD BE ACCEPTABLE. AMS CLAIMS THAT BURROUGHS' TECHNICAL REPRESENTATIVE ADMITTED THAT UPL CANNOT PERFORM SEVERAL OF THE REQUIRED FUNCTIONS AND CAPABILITIES THAT SDL CAN PERFORM. AMS FURTHER CONTENDS THAT ITS TECHNICAL REVIEW REVEALED EXTENSIVE FUNCTIONAL AND CAPABILITY DIFFERENCES BETWEEN UPL AND SDL AND THAT, THEREFORE, UPL DID NOT MEET THE REQUIREMENT.

HERE, AMS STATED IN ITS CLARIFICATION TO THE REQUIREMENT PRIOR TO THE SUBMISSION OF TECHNICAL PROPOSALS THAT SDL WAS AN ACCEPTABLE PROGRAMMING LANGUAGE. BURROUGHS INSTEAD OFFERED UPL, A SUBSET OF SDL, AS ITS PROGRAMMING LANGUAGE, WHICH BURROUGHS ADMITS DOES NOT PERFORM ALL THE FUNCTIONS AND CAPABILITIES THAT SDL PERFORMS. UNDER THESE CIRCUMSTANCES, WE CANNOT CONCLUDE THAT AMS ACTED IN AN ARBITRARY AND CAPRICIOUS MANNER IN VIOLATION OF FPR SEC. 1-2.503-1(B)(4) IN DETERMINING THAT BURROUGHS' PROPOSAL WAS NOT REASONABLY SUSCEPTIBLE TO BEING MADE ACCEPTABLE THROUGH DISCUSSIONS.

AS FOR THE REQUIREMENT FOR A FILE SYSTEM, SECTION C.109.5, SINCE BURROUGHS' PROPOSAL WAS PROPERLY DETERMINED TO BE TECHNICALLY UNACCEPTABLE UNDER THE REQUIREMENT FOR SOFTWARE PROGRAMMING LANGUAGE, WE NEED NOT CONSIDER THIS AREA OF ALLEGED NONCOMPLIANCE. CF. HSQ TECHNOLOGY, B-208557, DECEMBER 21, 1982, 82-2 CPD 560.

BURROUGHS CONTENDS THAT AMS IMPROPERLY MADE AWARD TO SPERRY UNIVAC BECAUSE SPERRY UNIVAC'S PROPOSAL DID NOT COMPLY WITH A MANDATORY REQUIREMENT OF THE RFTP. SPECIFICALLY, BURROUGHS ARGUES THAT SPERRY UNIVAC'S PROPOSAL SET FORTH AVERAGE AND MAXIMUM "SEEK TIMES" IN EXCESS OF THE ALLOWED AVERAGE AND MAXIMUM SEEK TIMES REQUIRED BY SECTION C.107.5, ENTITLED "DIRECT ACCESS STORAGE." AMENDMENT NO. A-04 DEFINED SEEK TIMES AS "THAT TIME, MEASURED IN MILLISECONDS, REQUIRED TO SELECTIVELY POSITION THE ACCESS MECHANISM OF A DIRECT ACCESS STORAGE DEVICE TO A SPECIFIED POSITION." AMS ARGUES THAT IT CLARIFIED THE SEEK TIME REQUIREMENT IN ANSWERING A QUESTION AS PART OF AMENDMENT NO. A-02 BY STATING THAT AN OFFEROR COULD PROPOSE SEEK TIMES IN EXCESS OF THOSE ALLOWED BY THE REQUIREMENTS AS LONG AS THE OFFEROR'S SYSTEM RESULTED IN AN ACCEPTABLE EQUIVALENT PERFORMANCE TAKING INTO CONSIDERATION OTHER COMPENSATING FACTORS. AMS CLAIMS THAT SPERRY UNIVAC'S SYSTEM PROVIDED AN ACCEPTABLE EQUIVALENT PERFORMANCE WITH HIGHER SEEK TIMES THAN ALLOWED BY THE REQUIREMENTS SINCE, AMONG OTHER FACTORS, IT HAD A COMPENSATING FASTER DATA TRANSFER RATE THAN REQUIRED.

AMS STATED IN ITS CLARIFICATION OF THE REQUIREMENTS PRIOR TO THE SUBMISSION OF TECHNICAL PROPOSALS THAT SEEK TIMES IN EXCESS OF THOSE LISTED WERE PERMISSIBLE AS LONG AS THE OFFEROR'S SYSTEM HAD COMPENSATING FACTORS THAT YIELDED AN ACCEPTABLE EQUIVALENT PERFORMANCE. IN VIEW OF THIS CLARIFICATION, WE CANNOT CONCLUDE THAT AMS ACTED ARBITRARILY OR IMPROPERLY IN DETERMINING THAT SPERRY UNIVAC'S PROPOSAL WAS TECHNICALLY ACCEPTABLE.

WE DENY THE PROTEST.

BURROUGHS ALSO CLAIMS ITS PROPOSAL PREPARATION COSTS. SUCH COSTS CAN ONLY BE RECOVERED, HOWEVER, IF THE GOVERNMENT HAS ACTED ARBITRARILY OR CAPRICIOUSLY IN REJECTING A PROPOSAL. HOLMES & NARVER SERVICES, INC., B-208652, JUNE 6, 1983, 83-1 CPD 605. IN VIEW OF OUR CONCLUSIONS ABOVE, WE DENY THE CLAIM.