B-213554, AUG 20, 1984, 84-2 CPD 195

B-213554: Aug 20, 1984

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PROTEST THAT CONTRACTING AGENCY IMPROPERLY PUBLISHED COMMERCE BUSINESS DAILY (CBD) SYNOPSIS OF PROCUREMENT AFTER ISSUANCE OF SOLICITATION AND ALLOWED ONLY 21 DAYS BETWEEN ISSUANCE OF SOLICITATION AND CLOSING DATE FOR SUBMISSION OF PROPOSALS IS DENIED. PROTESTER AND FOUR OTHER OFFERORS WERE ABLE TO SUBMIT PROPOSALS AND PROTESTER HAS PROVIDED NO EVIDENCE THAT IT WAS PREVENTED FROM ADEQUATELY PREPARING ITS PROPOSAL BY THE CLOSING DATE. WE FIND THAT PROTESTER WAS NOT PREJUDICED BY ALLEGEDLY LATE PUBLICATION OF CBD SYNOPSIS OR SHORT PROPOSAL PREPARATION PERIOD. PROTEST THAT RFP DID NOT CONTAIN ESTIMATES OF QUANTITIES TO BE PURCHASED BY USER AGENCIES UNDER GENERAL SERVICES ADMINISTRATION (GSA) INTERNATIONAL FEDERAL SUPPLY SCHEDULE PROCUREMENT IS DENIED.

B-213554, AUG 20, 1984, 84-2 CPD 195

ADVERTISING - COMMERCE BUSINESS DAILY - FAILURE TO SYNOPSIZE PROCUREMENT DIGEST: 1. PROTEST THAT CONTRACTING AGENCY IMPROPERLY PUBLISHED COMMERCE BUSINESS DAILY (CBD) SYNOPSIS OF PROCUREMENT AFTER ISSUANCE OF SOLICITATION AND ALLOWED ONLY 21 DAYS BETWEEN ISSUANCE OF SOLICITATION AND CLOSING DATE FOR SUBMISSION OF PROPOSALS IS DENIED. PROTESTER AND FOUR OTHER OFFERORS WERE ABLE TO SUBMIT PROPOSALS AND PROTESTER HAS PROVIDED NO EVIDENCE THAT IT WAS PREVENTED FROM ADEQUATELY PREPARING ITS PROPOSAL BY THE CLOSING DATE. THEREFORE, WE FIND THAT PROTESTER WAS NOT PREJUDICED BY ALLEGEDLY LATE PUBLICATION OF CBD SYNOPSIS OR SHORT PROPOSAL PREPARATION PERIOD. CONTRACTS - REQUIREMENTS - ESTIMATED AMOUNTS BASIS - BEST INFORMATION AVAILABLE 2. PROTEST THAT RFP DID NOT CONTAIN ESTIMATES OF QUANTITIES TO BE PURCHASED BY USER AGENCIES UNDER GENERAL SERVICES ADMINISTRATION (GSA) INTERNATIONAL FEDERAL SUPPLY SCHEDULE PROCUREMENT IS DENIED. RECORD SHOWS THAT GSA DID NOT HAVE PRIOR PURCHASE RECORDS SINCE THIS WAS INITIAL PROCUREMENT AND THAT SURVEY OF POTENTIAL USERS TO ESTIMATE FUTURE NEEDS WAS NOT FEASIBLE. MOREOVER, RFP NOTIFIED ALL OFFERORS THAT NO ESTIMATE OF ACTUAL QUANTITIES COULD BE COMPUTED. IN THESE UNUSUAL CIRCUMSTANCES, RFP WAS BASED UPON BEST AVAILABLE INFORMATION AND PROTESTER HAS NOT SHOWN THAT IT WAS PREJUDICED SINCE ALL OTHER OFFERORS RECEIVED SAME LIMITED INFORMATION. CONTRACTS - NEGOTIATION - REQUESTS FOR PROPOSALS - DEFECTIVE - EVALUATION FACTORS 3. PROTEST THAT RFP WAS DEFICIENT BECAUSE IT DID NOT INDICATE EVALUATION FACTORS UPON WHICH AWARD WOULD BE BASED IS DENIED WHERE RFP CLEARLY STATED THAT AWARD WOULD BE MADE TO OFFEROR WITH LOWEST EVALUATED PRICE AFTER LIFE CYCLE COSTING ANALYSIS WAS COMPLETED. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED 4. PROTEST ALLEGING NUMEROUS DEFICIENCIES IN LIFE CYCLE COSTING (LCC) TESTS WHICH WERE USED TO EVALUATE OFFERED PRODUCTS AND TO EVALUATE PROPOSED PRICES IS DENIED. ARGUMENTS ALLEGING DEFICIENCIES IN EXACT SAME LCC TESTS WERE RAISED BY PROTESTER AND RESOLVED BY GAO IN PREVIOUS DECISION, THAT DECISION WAS RECONSIDERED AT REQUEST OF PROTESTER AND AFFIRMED BY GAO, AND PROTESTER HAS NOT PRESENTED ANY ARGUMENTS OR NEW INFORMATION TO DISTINGUISH PRESENT CONTENTIONS FROM PREVIOUS CONTENTIONS. CONTRACTS - PROTESTS - CONFLICT IN STATEMENTS OF PROTESTER AND CONTRACTING AGENCY 5. PROTEST THAT AGENCY IMPROPERLY CALCULATED THE LENGTH OF TIME IT TOOK PROTESTER'S REPRESENTATIVES TO MAKE REPAIRS DURING LIFE CYCLE COSTING TESTS IS DENIED. PROTESTER CONTENDS THAT TEST DIRECTOR'S CONVERSATIONS WITH REPAIR REPRESENTATIVES WERE UNESSENTIAL, BUT WERE INCLUDED AS PART OF REPAIR TIME. AGENCY DENIES THIS CHARGE. GAO ACCEPTS AGENCY'S VERSION OF THESE CONVERSATIONS SINCE ONLY THE PARTIES WHICH WERE PRESENT HAVE ACTUAL KNOWLEDGE OF EVENT, AND THOSE PARTIES ARE IN CLEAR DISAGREEMENT AS TO WHAT TOOK PLACE. RECORD ALSO SHOWS THAT OTHER ALLEGED ERROR WAS CORRECTED BY AGENCY DURING CALCULATIONS.

CANON U.S.A., INC.:

CANON U.S.A., INC. (CANON), PROTESTS AWARD OF CONTRACTS TO INTERNATIONAL BUSINESS MACHINES CORPORATION (IBM) AND ADLER-ROYAL BUSINESS MACHINES (ADLER-ROYAL) PURSUANT TO REQUEST FOR PROPOSALS (RFP) NO. FGE-D3-75277-N- 10-28-83, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA). THE RFP CALLED FOR SUPPLY OF AN INDEFINITE QUANTITY OF SINGLE ELEMENT ELECTRIC/ELECTRONIC AND TYPEBAR TYPEWRITERS TO VARIOUS GOVERNMENT USER ACTIVITIES LOCATED OUTSIDE OF THE 48 CONTIGUOUS STATES. CANON'S PROTEST CONCERNS ONLY THE ELECTRIC/ELECTRONIC TYPEWRITER PORTION OF THE PROCUREMENT. UPON CONTRACT AWARDS, THE CONTRACTORS' PRODUCTS WERE LISTED ON GSA'S INTERNATIONAL FEDERAL SUPPLY SCHEDULE UNDER WHICH USER ACTIVITIES PLACE ORDERS FOR TYPEWRITERS DIRECTLY WITH THE CONTRACTORS. UNDER THE RFP, ONLY OFFERORS WHOSE PRODUCTS HAVE BEEN TESTED AND QUALIFIED BY GSA IN ACCORDANCE WITH CERTAIN LIFE CYCLE COSTING (LCC) PROCEDURES SET FORTH IN THE RFP PRIOR TO THE CLOSING DATE FOR RECEIPT OF OFFERS (OCTOBER 28, 1983) WERE ELIGIBLE FOR CONTRACT AWARDS. CANON ALLEGES THAT THERE WERE A NUMBER OF DEFICIENCIES IN THE RFP WHICH PRECLUDED INTELLIGENT PREPARATION OF PROPOSALS AND THAT THE LCC TESTING WAS DONE IMPROPERLY, RESULTING IN AN IMPROPER EVALUATION OF THE LOWEST EVALUATED LCC PRICE.

THE PROTEST IS DENIED.

CANON ARGUES THAT THE PROCUREMENT WAS DEFICIENT BECAUSE GSA PUBLICIZED A SYNOPSIS OF THE PROCUREMENT IN THE COMMERCE BUSINESS DAILY (CBD) AFTER ISSUING THE SOLICITATION AND ONLY 4 DAYS BEFORE THE CLOSING DATE SET FOR RECEIPT OF PROPOSALS. THE PROTESTER CONTENDS THAT GSA'S FAILURE TO GIVE ADVANCE NOTICE OF THIS PROCUREMENT WAS ARBITRARY AND CONTRARY TO THE FEDERAL PROCUREMENT REGULATIONS (FPR), 41 C.F.R. SEC. 1 1.1003.6 (1983), WHICH GENERALLY REQUIRE PUBLICATION AT LEAST 10 DAYS PRIOR TO ISSUANCE OF A SOLICITATION. CANON ALSO ALLEGES THAT, BECAUSE THE SOLICITATION WAS ISSUED ONLY 21 DAYS PRIOR TO THE CLOSING DATE FOR SUBMISSION OF PROPOSALS, THERE WAS INSUFFICIENT TIME FOR PREPARATION OF PROPOSALS. CANON ARGUES THAT THIS WAS IN VIOLATION OF THE TRADE AGREEMENTS ACT OF 1979 AND IMPLEMENTING REGULATIONS (41 C.F.R. SEC. 1 3.105-1 (1983)), WHICH SPECIFY THAT AT LEAST 30 DAYS MUST BE ALLOWED BETWEEN ISSUANCE AND THE CLOSING DATE FOR SUBMISSION OF PROPOSALS.

THE RECORD SHOWS THAT GSA ORIGINALLY SOLICITED FOR THE TYPEWRITERS COVERED BY THIS PROCUREMENT UNDER AN INVITATION FOR BIDS WHICH WAS SYNOPSIZED IN THE CBD ON SEPTEMBER 2, 1983, AND WHICH HAD A BID OPENING DATE OF OCTOBER 11. THAT ADVERTISED PROCUREMENT COVERED TYPEWRITERS TO BE USED BY BOTH DOMESTIC AND FOREIGN USER ACTIVITIES. GSA DECIDED TO SEPARATE THE FOREIGN AND DOMESTIC REQUIREMENTS; THE PROCUREMENT OF TYPEWRITERS FOR FOREIGN USERS WAS TO BE NEGOTIATED AND THE PROCUREMENT FOR DOMESTIC USERS WAS TO REMAIN UNDER THE ORIGINAL ADVERTISED PROCUREMENT. ACCORDING TO GSA, IT NOTIFIED POTENTIAL OFFERORS, INCLUDING CANON, OF ITS DECISION TO ISSUE AN RFP FOR FOREIGN COVERAGE ON OCTOBER 3. THE RFP FOR FOREIGN COVERAGE WAS ISSUED ON OCTOBER 7 WITH AN OCTOBER 28 CLOSING DATE FOR RECEIPT OF PROPOSALS. THE RFP INDICATED THAT GSA PROPOSED TO MAKE AWARD BY DECEMBER 1, 1983, AND THAT THE CONTRACT PERIOD WOULD RUN UNTIL NOVEMBER 30, 1984.

GSA'S FAILURE TO PUBLISH A SYNOPSIS OF THIS PROCUREMENT AT LEAST 10 CALENDAR DAYS BEFORE ISSUANCE OF THE RFP AS REQUIRED BY FPR, 41 C.F.R. SEC. 1-1.1003-6 (1983), AND THE FAILURE TO ALLOW AT LEAST 30 DAYS FOR SUBMISSION OF PROPOSALS PROVIDES NO BASIS FOR INVALIDATING THE CONTRACT AWARDS IN THIS PROCUREMENT. THE STATED PURPOSE OF THE REQUIREMENT IN FPR SEC. 1-1.1003-6 IS TO--

"... ALLOW CONCERNS WHICH ARE NOT ON CURRENT BIDDERS MAILING LISTS TIME TO REQUEST AND RECEIVE INVITATIONS FOR BIDS OR REQUEST FOR PROPOSALS ... IN AMPLE TIME TO PREPARE BIDS OR PROPOSALS ..."

CANON WAS A PARTICIPANT IN THE ORIGINAL ADVERTISED PROCUREMENT WHICH COVERED BOTH FOREIGN AND DOMESTIC TYPEWRITER PURCHASES, AND GSA REPORTS THAT IT SPECIFICALLY NOTIFIED CANON ON OCTOBER 3 THAT IT HAD DECIDED TO BREAKOUT THE FOREIGN TYPEWRITER REQUIREMENT AND WOULD ISSUE AN RFP IN THE IMMEDIATE FUTURE. WHILE CANON CONTENDS THAT IT WAS NOT INFORMED OF GSA'S INTENT TO ISSUE AN RFP FOR THE FOREIGN REQUIREMENT ON OCTOBER 3, WE WILL ACCEPT GSA'S VERSION OF THAT COMMUNICATION SINCE BOTH PARTIES HAD EQUAL KNOWLEDGE OF THIS CONVERSATION, BUT ARE IN CLEAR DISAGREEMENT AS TO WHAT WAS SAID. IN SUCH CIRCUMSTANCES, THE PROTESTER HAS NOT MET ITS BURDEN OF AFFIRMATIVELY PROVING ITS CASE. SEE GEORGETOWN AIR & HYDRO SYSTEMS, B-210806, FEB. 14, 1984, 84-1 CPD PARA. 186.

MOREOVER, CANON HAS NOT ARGUED THAT IT DID NOT RECEIVE AN RFP IMMEDIATELY AFTER ISSUANCE. SINCE CANON WAS FULLY INFORMED BY GSA OF ALL PROCUREMENT ACTIONS TAKEN OR ABOUT TO BE TAKEN, WE THINK THAT CANON DID NOT FALL WITHIN THE PROTECTION ACCORDED BY FPR SEC. 1-1.1003-6 TO CONCERNS WHICH WERE NOT ON CURRENT BIDDERS' MAILING LISTS. WE HAVE HELD THAT, EVEN WHERE THE CONTRACTING AGENCY FAILED TO SYNOPSIZE A PROCUREMENT IN THE CBD AND THE PROTESTER DID NOT RECEIVE A COPY OF THE SOLICITATION, FAILURE TO PUBLISH A SYNOPSIS IN THE CBD STANDING ALONE IS NOT A BASIS FOR UPSETTING AN OTHERWISE VALID AWARD AS LONG AS ADEQUATE COMPETITION HAS BEEN GENERATED AND THERE IS NO EVIDENCE OF AN ATTEMPT TO PRECLUDE POTENTIAL COMPETITORS FROM COMPETING. UFFNER TEXTILE CORPORATION, B-210076, JAN. 18, 1983, 83-1 CPD PARA. 66; COASTAL SERVICES, INC., B-182858, APR. 22, 1975, 75-1 CPD PARA. 250. HERE, CANON WAS NOT PREVENTED FROM COMPETING. FURTHERMORE, WHILE CANON MAKES A GENERAL STATEMENT THAT IT WAS PREVENTED FROM ADEQUATELY PREPARING ITS PROPOSAL BECAUSE OF THE SHORT TIME ALLOWED BETWEEN SOLICITATION ISSUANCE AND THE CLOSING DATE, CANON HAS NOT PROVIDED ANY SPECIFIC EVIDENCE TO SUPPORT THIS CHARGE. IN VIEW OF THE ABOVE CIRCUMSTANCES, THE FACT THAT CANON'S PRODUCT HAD PREVIOUSLY UNDERGONE LCC TESTING, AND THE FACT THAT CANON AND FOUR OTHER OFFERORS WERE ABLE TO SUBMIT PROPOSALS BY THE CLOSING DATE, WE DO NOT SEE HOW CANON WAS PREJUDICED BY EITHER THE ALLEGEDLY LATE CBD SYNOPSIS OR THE 21-DAY PERIOD ALLOWED FOR PROPOSAL PREPARATION. SEE SCIENCE APPLICATIONS, INC., B-197099, MAY 20, 1980, 80-1 CPD PARA. 348 AT 8. ACCORDINGLY, THE PROTEST IS DENIED ON THESE ISSUES.

CANON NEXT ARGUES THAT THE RFP WAS DEFICIENT IN A NUMBER OF AREAS WHICH PRECLUDED INTELLIGENT PREPARATION OF PROPOSALS. CANON CHARGES THAT THE RFP DID NOT PROVIDE ESTIMATES OF THE NUMBER OF TYPEWRITERS WHICH WOULD BE PURCHASED BY USER AGENCIES, THE RFP DID NOT LIST EVALUATION CRITERIA NOR INDICATE THE RELATIVE IMPORTANCE OF PRICE AND TECHNICAL ASPECTS OF PROPOSALS, AND THE RFP DID NOT PROVIDE NOTICE TO OFFERORS THAT GSA HAD RESERVED THE RIGHT TO MAKE AWARDS ON THE BASIS OF INITIAL PROPOSALS. DISCUSSED BELOW, WE DENY THE PROTEST ON EACH OF THESE POINTS.

CONCERNING THE LACK OF QUANTITY ESTIMATES, GSA REPORTS THAT THIS PROCUREMENT IS THE FIRST ATTEMPT BY GSA TO COVER OVERSEAS ACTIVITIES' TYPEWRITER REQUIREMENTS. THEREFORE, GSA STATES THAT NEITHER ESTIMATES OF FUTURE NEEDS NOR RECORDS OF PAST PURCHASES WERE AVAILABLE FOR INCLUSION IN THE RFP. GSA ALSO REPORTS THAT, BECAUSE OF THE NUMBER OF OVERSEAS SCHEDULE USERS, IT WAS NOT FEASIBLE TO SURVEY POTENTIAL BUYING OFFICES TO ESTIMATE THE TOTAL OF THEIR FUTURE REQUIREMENTS. ACCORDINGLY, GSA STATED IN THE RFP THAT THERE WERE NO FIRM ESTIMATED REQUIREMENTS AND THAT THERE WAS NO GUARANTEE THAT ANY QUANTITY WOULD BE PURCHASED UNDER CONTRACTS AWARDED.

IN REQUIREMENTS CONTRACTS, OUR OFFICE HAS HELD THAT WHEN EXACT QUANTITIES OF ITEMS TO BE PROCURED ARE NOT KNOWN, THE SOLICITATION MUST PROVIDE SOME BASIS FOR BIDDING, SUCH AS ESTIMATED QUANTITIES, AND THAT WHEN FUTURE NEEDS CANNOT BE ESTIMATED, PAST ORDERS MAY BE LISTED INSTEAD. WITHOUT ESTIMATES, BIDDERS LACK INFORMATION THAT MAY BE NECESSARY FOR INTELLIGENT PREPARATION OF THEIR BIDS, AND THEY ARE NOT BIDDING ON A COMMON BASIS. SEE NATIONAL MEDIATION BOARD-- REQUEST FOR ADVANCE DECISION, B-209037, OCT. 8, 1982, 82-2 CPD PARA. 323. HOWEVER, WE HAVE ALSO RECOGNIZED THAT, IN CERTAIN CIRCUMSTANCES, IT MAY NOT BE POSSIBLE FOR THE CONTRACTING AGENCY TO PREDICT ITS NEEDS ACCURATELY. SEE, FOR EXAMPLE, GIBSON & CUSHMAN DREDGING CORPORATION, B-194902, FEB. 12, 1980, 80-1 CPD PARA. 122, AND KLEIN-SIEB ADVERTISING AND PUBLIC RELATIONS, INC., B-200399, SEPT. 28, 1981, 81-2 CPD PARA. 251. IN SUCH CIRCUMSTANCES, WE HAVE INDICATED THAT THE SOLICITATION SHOULD BE BASED UPON THE BEST AVAILABLE INFORMATION. KLEIN-SIEB ADVERTISING AND PUBLIC RELATIONS, INC., B-200399, SUPRA, AT 6.

IN THE PRESENT CASE, GSA WAS SOLICITING OFFERS ON BEHALF OF ALL OVERSEAS USER ACTIVITIES FOR THE FIRST TIME AND, THEREFORE, NO RECORDS OF PREVIOUS PURCHASES WERE AVAILABLE FOR INCLUSION IN THE RFP OR FOR USE IN COMPUTING ESTIMATES OF FUTURE NEEDS. FURTHERMORE, DUE TO THE GREAT NUMBER OF POTENTIAL USER ACTIVITIES, GSA BELIEVED THAT A SURVEY OF POTENTIAL PURCHASERS WOULD NOT BE FEASIBLE. GSA PUT A STATEMENT INTO THE RFP WHICH PUT ALL POTENTIAL OFFERORS ON NOTICE THAT NO ESTIMATE OF THE ACTUAL QUANTITIES TO BE ORDERED COULD BE COMPUTED. IN THESE UNUSUAL CIRCUMSTANCES, WE CONCLUDE THAT THE RFP WAS BASED UPON THE BEST AVAILABLE INFORMATION AND THAT ALL OFFERORS WERE PLACED ON EQUAL FOOTING. SEE KLEIN -SIEB ADVERTISING AND PUBLIC RELATIONS, INC., B-200399, SUPRA. MOREOVER, CANON HAS PRESENTED NO EVIDENCE WHICH SHOWS HOW IT WAS PREJUDICED IN THIS REGARD IN RELATION TO THE OTHER OFFERORS WHO RECEIVED THE SAME LIMITED INFORMATION. SEE SCIENCE APPLICATIONS, INC., B-197099, SUPRA.

CANON'S CONTENTION THAT THE RFP WAS DEFICIENT BECAUSE IT DID NOT LIST EVALUATION CRITERIA OR STATE THE RELATIVE IMPORTANCE OF PRICE AND TECHNICAL FACTORS IS WITHOUT MERIT. GSA REPORTS THAT IT DECIDED TO USE NEGOTIATED PROCEDURES INSTEAD OF ADVERTISED BIDDING PROCEDURES BECAUSE, AMONG OTHER THINGS, IT WANTED TO HAVE THE FLEXIBILITY OF BEING ABLE TO IMPROVE INITIAL OFFERED PRICES THROUGH NEGOTIATIONS, ESPECIALLY IN VIEW OF THE FACT THAT THIS WAS THE FIRST TIME THAT LCC TESTING WOULD BE USED TO PURCHASE TYPEWRITERS FOR OVERSEAS ACTIVITIES. EVEN THOUGH NEGOTIATION WAS THE CHOSEN METHOD OF PROCUREMENT, OUR REVIEW OF THE RFP REVEALS THAT IT HAD MANY OF THE ATTRIBUTES OF AN INVITATION FOR BIDS WHICH IS USED IN FORMAL ADVERTISING. FOR EXAMPLE, THE COVER PAGE ACCOMPANYING THE RFP STATED THAT, "AWARD WILL BE MADE TO THE CONTRACTOR OFFERING THE LOWEST NEGOTIATED PRICE PER COUNTRY." THE RFP STATED:

"METHOD OF AWARD: (A) SINGLE ELEMENT ELECTRIC/ELECTRONIC: AWARD WILL BE MADE ON AN ITEM-BY-ITEM BASIS UTILIZING THE LCC PROCEDURES FOR TYPEWRITERS WITH CORRECTING FEATURES AS DETAILED HEREIN. AWARD WILL BE MADE TO THE LOWEST LCC BID PRICE.

"(B) TYPEBAR, ELECTRIC: AWARD WILL BE MADE ON AN ITEM-BY-ITEM BASIS TO THE LOWEST RESPONSIVE RESPONSIBLE BIDDER." THE RFP ALSO SET OUT IN GREAT DETAIL THE LCC TESTING PROCEDURES WHICH WERE TO BE USED TO DETERMINE THE "LOWEST LCC BID PRICE." THE RFP ALSO LISTED CERTAIN SALIENT CHARACTERISTICS WHICH ALL OFFERED PRODUCTS WOULD HAVE TO HAVE IN ORDER TO BE ELIGIBLE FOR AWARD. IN OUR VIEW, THE RFP MADE IT ABUNDANTLY CLEAR THAT, ONCE ELIGIBLE OFFERED PRODUCTS HAD UNDERGONE LCC TESTING PROCEDURES, THE AWARD WOULD BE BASED SOLELY UPON A DETERMINATION OF THE LOWEST LCC PRICE PER COUNTRY. THUS, WE CONCLUDE THAT THE RFP DID STATE THE EVALUATION FACTORS AND CLEARLY INDICATED THE BASIS FOR AWARD.

CANON'S CHARGE THAT THE RFP WAS DEFECTIVE BECAUSE IT DID NOT RESERVE TO GSA THE RIGHT TO MAKE AWARD ON THE BASIS OF INITIAL PROPOSALS IS ALSO WITHOUT MERIT. THE RFP INCORPORATED BY REFERENCE STANDARD FORM 33A, SOLICITATION INSTRUCTIONS AND CONDITIONS, WHICH SPECIFICALLY STATES IN PARAGRAPH 10 THAT, "THE GOVERNMENT MAY AWARD A CONTRACT, BASED ON INITIAL OFFERS RECEIVED, WITHOUT DISCUSSION OF SUCH OFFERS." THE RFP ALSO NOTED THAT THIS FORM WAS AVAILABLE UPON REQUEST FROM GSA.

THE REMAINDER OF CANON'S PROTEST CONCERNS ALLEGED DEFICIENCIES CONCERN THE TYPE OF RIBBON AND CORRECTIVE TAPE USED, THE USE OF UNIFORM OPERATOR WAGES AND UNIFORM MEAN CORRECTIVE TIME FOR ALL MACHINES, BATTERY REPLACEMENT COSTS, RESIDUAL VALUE AND THE TIME NECESSARY TO REMOVE THE RIBBON FROM THE PACKAGE.

THE ABOVE ALLEGATIONS WERE ALL RAISED BY THE PROTESTER AND RESOLVED BY OUR OFFICE IN A PREVIOUS PROTEST INVOLVING THE SAME LCC TESTING WHEN APPLIED TO THE DOMESTIC TYPEWRITER PROCUREMENT OF WHICH THE PRESENT PROCUREMENT WAS ORIGINALLY A PART. CANON HAS NOT PRESENTED ANY ARGUMENTS OR NEW INFORMATION WHICH WOULD DISTINGUISH THE ABOVE CONTENTIONS FROM THOSE WHICH WE HAVE PREVIOUSLY CONSIDERED AND DENIED. SEE SWINTEC CORPORATION, CANON U.S.A., INC., OLYMPIA USA, INC., GUERNSEY OFFICE PRODUCTS, B-212395.2 ET AL., APR. 24, 1984, 84-1 CPD PARA. 466 AT 8-11, RECONSIDERED AND AFFIRMED IN CANON U.S.A., INC.- RECONSIDERATION, B-212395.6, JUNE 4, 1984, 84-1 CPD PARA. 591. ACCORDINGLY, WE SEE NO REASON TO CONSIDER THESE CONTENTIONS ONCE AGAIN HERE, AND WE DENY THIS PORTION OF CANON'S PROTEST. ALAN SCOTT INDUSTRIES, B-205730 ET AL., JAN. 27, 1982, 82-1 CPD PARA. 64. CANON ALSO ALLEGES THAT GSA IMPROPERLY RECORDED THE LENGTH OF TIME IT TOOK CANON'S SERVICE REPRESENTATIVES TO MAKE REPAIRS ON THE THREE OCCASIONS DURING LCC TESTING THAT SUCH REPAIRS WERE NECESSARY. SINCE THIS ERRONEOUS DATA WAS USED TO CALCULATE "MEAN TIME TO REPAIR," THE ERRORS WORKED TO THE PREJUDICE OF CANON. ACCORDING TO CANON, THE LCC TEST DIRECTOR SPENT SIGNIFICANT TIME TALKING WITH CANON'S REPRESENTATIVE ON TWO OF THE OCCASIONS AND GSA INCLUDED THIS TIME IN ITS CALCULATION OF REPAIR TIME.

THE RECORD SHOWS THAT THERE WAS AN ERROR IN THE TIME RECORDED ON ONE OCCASION, BUT THE RECORD ALSO REFLECTS THAT GSA CORRECTED THIS ERROR. TO THE OTHER ALLEGED ERRORS, GSA DENIES THAT ANY UNESSENTIAL CONVERSATION TOOK PLACE BETWEEN THE LCC TEST DIRECTOR AND CANON'S REPAIR REPRESENTATIVE. WHERE, AS HERE, THE PARTIES WHICH WERE PRESENT WHEN THE REPAIRS WERE MADE ARE IN TOTAL DISAGREEMENT AS TO WHETHER ANY UNESSENTIAL CONVERSATION TOOK PLACE, WE WILL ACCEPT THE AGENCY'S VERSION OF THE FACTS SINCE BOTH PARTIES HAVE EQUAL KNOWLEDGE OF THE EVENT, AND THE PROTESTER HAS NOT MET ITS BURDEN OF AFFIRMATIVELY PROVING ITS CASE. GEORGETOWN AIR & HYDRO SYSTEMS, B-210806, SUPRA. MOREOVER, IN VIEW OF THE FACT THAT CANON'S PROPOSED PRICES WERE MUCH HIGHER THAN EITHER IBM'S OR ADLER'S OFFERED PRICES, WE ARE NOT CONVINCED THAT THE ALLEGED ERRORS IN RECORDING TIME WOULD HAVE MADE ANY DIFFERENCE IN THE OUTCOME OF THE COMPETITION. SEE KET, INC., B-190983, DEC. 21, 1979, 79-2 CPD PARA. 429 AT 15. THEREFORE, THIS PORTION OF THE PROTEST IS DENIED.

ACCORDINGLY, WE DENY THE PROTEST.