B-233742.5, B-233742.6, B-233742.7, May 14, 1990, 69 Comp.Gen. 445

B-233742.5,B-233742.7,B-233742.6: May 14, 1990

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PROCUREMENT - Bid Protests - GAO procedures - GAO decisions - Reconsideration l was noncompliant with solicitation requirements. Is affirmed where reconsideration request is based on mere disagreement with prior decision or arguments that could have been. Were not. Recommendation to reopen negotiations under revised specifications is affirmed notwithstanding potential for additional cost to the government where any such cost would be due in large measure to the agency having placed a substantial order under the contract after the protest conference. At which the awardee's compliance with the specifications was in issue. Argued that since the detailed definition of the required multi-tasking capability was found only in a subsection of the specification section describing one of the other broad classes of required application software.

B-233742.5, B-233742.6, B-233742.7, May 14, 1990, 69 Comp.Gen. 445

PROCUREMENT - Bid Protests - GAO procedures - GAO decisions - Reconsideration l was noncompliant with solicitation requirements, and recommending that negotiations be reopened under revised specifications, is affirmed where reconsideration request is based on mere disagreement with prior decision or arguments that could have been, but were not, raised during consideration of protest, and record does not otherwise show error of fact or law warranting reversal or modification of decision. PROCUREMENT - Bid Protests - GAO decisions - Recommendation affirmation 2. Recommendation to reopen negotiations under revised specifications is affirmed notwithstanding potential for additional cost to the government where any such cost would be due in large measure to the agency having placed a substantial order under the contract after the protest conference, at which the awardee's compliance with the specifications was in issue, and only 1 month prior to the due date for the General Accounting Office's decision.

Attorneys

Honeywell Federal Systems, Inc.; Martin Marietta Corporation; Department of the Air Force-- Request for Reconsideration:

Honeywell Federal Systems, Inc., Martin Marietta Corporation and the Department of the Air Force request reconsideration of our decision in Martin Marietta Corp., B-233742.4, Jan. 31, 1990, 69 Comp.Gen. ***, 90 1 CPD Para. 132. In that decision, we sustained Martin Marietta's protest against the Air Force's award of a contract to Honeywell under request for proposals (RFP) No. F19628-88-R-0038, for microcomputer workstations for the World-Wide Military Command and Control System's Information System (WIS). We sustained the protest on the basis that Honeywell failed to satisfy the RFP requirement for a multi-tasking capability.

We affirm the decision.

The WIS specification generally required that the workstations "be capable of executing correctly a multi-tasking operating system that meets the requirements of 3.1.4.2.1" of the specification. That paragraph defined the required multi-tasking capability as the ability to support the concurrent execution of a minimum of 10 "tasks," and specifically stated that the multi-tasking operating system must be capable of providing at least 10 windows on the computer screen. Honeywell offered an Apple Corporation Macintosh IIx computer with an A/UX operating system, Apple's implementation of the UNIX operating system. It proposed to meet the specification requirements in the user support services area (one of the four broad classes of required application software) for wordprocessing, spreadsheet and graphics capabilities with Macintosh operating system (MAC/OS) applications running under the A/UX operating system. Although multiple, non-MAC/OS applications could be executed simultaneously on this system, only one MAC/OS software application could be run at a time in the required secure operating mode; multiple MAC/OS applications could not be launched. (Honeywell proposed to supply after award an upgrade which would enable the operating system to launch multiple MAC/OS applications.)

In its protest of the subsequent award to Honeywell, Martin Marietta contended that Honeywell's proposed workstation failed to comply with the solicitation requirement for a multi-tasking operating system because it lacked the current capability to initiate and simultaneously execute multiple user support services applications. The Air Force and Honeywell, on the other hand, argued that since the detailed definition of the required multi-tasking capability was found only in a subsection of the specification section describing one of the other broad classes of required application software, that is, the system and applications development support services, the multi-tasking requirement only applied to that class of software applications.

We disagreed with Honeywell and the agency. We found that their interpretation ignored the general provisions of the specification requiring "a multi-tasking operating system that meets the requirements of 3.1.4.2.1" and those providing that the required user support services Honeywell's proposed system would satisfy its minimum needs and its arguments in response to the protest, the Air Force essentially has found that the specification overstated its minimum needs. Tektronix, Inc., B-225769, June 8, 1987, 87-1 CPD Para. 590, aff'd, Biddle Instruments; Tektronix, Inc.-- Recon., B-225769.9, B-225769.3, Sept. 15, 1987, 87-2 CPD Para. 251. While the appropriate remedy of course depends upon all the circumstances surrounding the procurement, United States Coast Guard-- Request for Advance Decision, 69 Comp.Gen. 30 (1989), 89-2 CPD Para. 366, the proper remedy in these circumstances generally is revision of the specification to reflect the agency's actual minimum needs, affording offerors an opportunity to respond to the revised specification and, if appropriate based on the recompetition, terminating the improperly awarded contract. See generally id.; Consulting and Program Management, 66 Comp.Gen. T289, supra (recommendation to resolicit under revised specifications).

There is no evidence that Martin Marietta will be placed at a competitive disadvantage by the reopening of negotiations; Martin Marietta has had the same opportunity as Honeywell to further develop or modify its system and to remedy the evaluated deficiencies. In any case, the risk of an auction or the possibility of other prejudice to Martin Marietta resulting from reopening is secondary to the need to preserve the integrity of the competitive procurement system through appropriate corrective action. See generally Power Dynatec Corp., B-236896, Dec. 6, 1989, 89-2 CPD Para. 522.

The Air Force's estimate of the extent of the potential increased cost to the government also does not persuade us that Honeywell's contract should be allowed to stand without reopening the competition. In this regard, the Air Force's estimates are based on the possibility of an award for an incompatible system, but the agency has not documented the extent and effect of any likely incompatibility; we note for instance that, as indicated above, Martin Marietta maintains that software developed in accordance with the specification should be fully compatible with any compliant system. The agency's estimate of the residual value of equipment already ordered also is unsupported and thus is only speculative. The Air Force's position also ignores the potential cost savings that may be realized from reopening the competition; Martin Marietta offered a lower fixed price than Honeywell in its BAFO for the evaluated quantity (which was approximately 25 percent of the maximum quantity), and relaxation of the specifications to reflect the agency's actual minimum needs may result in lower prices.

To the extent that implementation of our recommendation may result in a net cost increase to the government, we point out that this is due in large measure to the agency having placed an order under the contract for supplies in the amount of $15,300,000-- 81 percent of all hardware, software and services ordered-- on December 29, 1989; this was after the protest conference, and only 1 month before the due date for our decision. Although we recognize that the protest was not filed soon enough after award to bring into effect the stay provisions of the Competition in Contracting Act of 1984, 31 U.S.C. Sec. 3553 (Supp. V 1987), nevertheless, in our view, the agency assumed the risk that by issuing a substantial delivery order after the conference and 1 month prior to the due date for our decision, its actions would result in additional cost to the government. We are not inclined to alter our otherwise appropriate recommendation based on costs incurred by the Air Force at that juncture in the protest process. Finally, the potential for delay appears to be mitigated by the fact that Martin Marietta states it has a significant number of workstations available for delivery to the agency should it receive an award.

The decision is affirmed.

/1/ At one point in its request for reconsideration, the Air Force refers to a potential cost impact of $25,333,000. THis figure, however, apparently does not account for the residual, resale value of the ordered equipment as estimated by the agency.