Matter of: Telemetrics, Inc.; Techniarts Engineering File: B-242957.7 Date: April 3, 1992 *REDACTED VERSION*

B-242957.7: Apr 3, 1992

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Award of contract was improper where equipment proposed by awardee failed to comply with solicitation requirements. Agency had no reasonable basis for determining that equipment proposed by awardee met solicitation requirements where agency had advised the protesters that the same equipment offered in their proposals was technically unacceptable. The RFP contained comprehensive design specifications which were based on a video system previously developed by the Air National Guard. The agency defended the design specifications on the basis that they reflected the agency's minimum needs and were all mandatory requirements. (2) the ground playback equipment must have an audio signal to noise ratio of "better than 60dB".

Matter of: Telemetrics, Inc.; Techniarts Engineering File: B-242957.7 Date: April 3, 1992 *REDACTED VERSION*

Award of contract was improper where equipment proposed by awardee failed to comply with solicitation requirements; agency had no reasonable basis for determining that equipment proposed by awardee met solicitation requirements where agency had advised the protesters that the same equipment offered in their proposals was technically unacceptable.

Attorneys

DECISION

Telemetrics, Inc. and Techniarts Engineering protest the award of a contract by the Department of the Air Force to pacific Video Products, Inc. (PVP) under request for proposals (RFP) No. F09603-90-R-81286 for certain video recording systems. Telemetrics and Techniarts both assert that PVP's proposal failed to comply with mandatory RFP requirements regarding: (l) the power limitation; (2) the audio signal to noise ratio for playback equipment; and (3) the capabilities of the remote control unit. [1]

We sustain the protests.

BACKGROUND

On August 15, 1990, the Air Force issued RFP No. F09603-90-R-81286 seeking to acquire an improved video recording system for use by F-15 aircraft. The RFP contemplated acquisition of commercially available equipment and required the awardee to install two cameras and two recorders in each aircraft for in-flight recording, and provide various other equipment - (including recorder/playback units and remote control units) for purposes of ground playback. The RFP contained comprehensive design specifications which were based on a video system previously developed by the Air National Guard.

Prior to the closing date for submission of proposals, another prospective offeror protested the terms of the solicitation arguing that the Air Force's use of design specifications, rather than functional specifications, unduly restricted competition. See Loral Fairchild Corp., B-242957, June 24, 1991, 91-1 CPD Para. 594. The agency defended the design specifications on the basis that they reflected the agency's minimum needs and were all mandatory requirements. On the basis of the agency's representations regarding the necessity of the mandatory requirements to meet its minimum needs, we found no basis to question the use of design specifications in this procurement. Id. At a hearing conducted in connection with this protest, the agency's technical evaluator responsible for assessing the offerors' compliance with the specifications reiterated the Air Force's position that all of the design specifications in this RFP represented mandatory requirements. Transcript (Tr.) at 3. [2] In this regard, section L-900(d) of the RFP provided that proposals failing to comply with the specifications "shall be categorized as unacceptable." Among other things, the RFP specifically required that: (1) the equipment installed in the aircraft must require not more than 15 watts of power; (2) the ground playback equipment must have an audio signal to noise ratio of "better than 60dB"; and (3) the remote control unit must provide an indication that action has been taken and have a tape eject button. Initial proposals were submitted by Telemetrics, Techniarts, and PVP. All three offerors proposed to provide [deleted] for installation in the aircraft. Telemetrics's and Techniarts's proposals each indicated that use of the - [deleted] would cause the proposed system to slightly exceed the 15 watts power limitation. [3] During discussions, the Air Force advised both protesters that: "[Y]our proposed use of [deleted] in your system fails to meet the Government specification's power limitation of 15 watts power. Therefore, your proposed use of the [deleted) is considered to be technically unacceptable for the subject requirement."

PVP's proposal did not provide any breakdown of the amount of power required for each piece of equipment. Regarding total power required, its proposal stated only that, "[t)otal aircraft power consumption is approximately 15 watts." At the hearing, the agency's technical evaluator confirmed that "there was nothing in PVP's proposal that directly addressed how much [power] would be drawn." Tr. at 6.

PVP's proposal did state that it was proposing [deleted) in order to reduce the amount of power required during system start-up. [4] However, PVP's proposal offered no information regarding the specific amount of power that would be required [deleted], [5] nor does either PVP or the agency suggest that, [deleted] would have any effect on the level of power required during steady-state operation of the equipment.

Following submission of initial proposals, the Air Force conducted discussions with PVP during which the agency requested various clarifications regarding the proposal. Despite the agency's determination that Telemetrics's and Techniarts's proposals--which initially offered the same airborne equipment proposed by PVP--were technically unacceptable for failure to meet the power limitation requirement, and notwithstanding PVP's vague statement that its system would require "approximately 15 watts," the agency chose not to request any further information from PVP regarding whether its proposed equipment complied with the RFP's power limitation requirement. The Air Force subsequently awarded a contract to PVP. The protests by Telemetrics and Techniarts followed, alleging that PVP's proposal failed to meet the mandatory RFP specifications listed above.

DISCUSSION

In responding to the protests, the Air Force argues that it reasonably determined that PVP's proposal met the power limitation requirement based on: (1) PVP's general statements of compliance with the specifications; [6] and (2) PVP's proposal of the [deleted). We find no reasonable basis for the agency's reliance on either of these factors.

An offeror is responsible for demonstrating that its proposal complies with all of a solicitation's mandatory requirements. Technology for Communications Int'l, B-242632.2, Dec. 13, 1991, 91-2 CPD Para. 540. Blanket offers of compliance are generally insufficient where the agency has reason to question the characteristics of the products proposed. Id.

It is clear from the record that the agency viewed the 15 watts power limitation as a firm requirement. At the hearing, the agency's technical evaluator stated:

"before the closing date of the RFP . . . [PVP) did give me a call and ask[ed), you know, was the 15 watts going to be a hard requirement, and I said, yes, its going to be a hard requirement." Tr. at 8.

Here, having advised Telemetrics and Techniarts that the equipment they proposed was technically unacceptable for failure to comply with the power limitation requirement, the agency clearly had reason to question whether PVP's proposal--offering the same equipment--would comply with this requirement. This was particularly true in view of PVP's question as to whether the power limitation was a "hard requirement," the absence of any specific data in PVP's proposal regarding power requirements, and PVP's vague statement that its equipment would require "approximately 15 watts." Faced with these facts, the Air Force's reliance on PVP's general representation of compliance, without seeking any further information, did not constitute a reasonable basis for determining that PVP's proposal met the power limitation requirement.

The agency's assertion that it reasonably relied on the [deleted) is similarly without merit. Section L-900(d) of the RFP, as amended, stated that offerors were to indicate how each specification requirement was to be satisfied and, where "implementing procedures or organizations" were involved, indicated that mere acknowledgment of the requirement would not be sufficient. PVP's proposal offered no information regarding the amount of current required by this procedure. Further, the proposal did not suggest that the [deleted) had any effect on the power required during steady-state operation of the equipment.

Procuring agencies are required to treat all offerors equally. See, e.q., ITT Electron Technology Division, B-242289, Apr. 18, 1991, 91-1 CPD Para. 383. Here, the agency expressly advised the protesters during discussions that their proposals failed to meet the RFP's 15 watts power limitation requirement, leading the protesters to offer other equipment in their best and final offers (BAFOs). In contrast, without conducting discussions on this issue with PVP, the agency accepted PVP's representations that its proposal of the same equipment initially offered by the protesters would meet the power limitation requirement-- notwithstanding PVP's failure to explain how that requirement would be met. In accepting PVP's proposal of equipment the agency found to be technically unacceptable in the protesters' proposals, the agency failed to afford the offerors equal treatment.

The record also demonstrates that PVP offered other equipment that failed to comply with various mandatory RFP requirements. specifically, the RFP required that the audio signal to noise ratio of the ground playback equipment proposed must be "better than 60dB." PVP proposed the [deleted] as its ground playback unit, but did not submit any manufacturer's data regarding the audio signal to noise ratio of that equipment. Rather, PVP simply asserted that this equipment would meet the specifications.

In pursuing its protest, Techniarts submitted documentation from the manufacturer of the [deleted] playback unit indicating that it does not meet the RFP's requirement regarding audio signal to noise ratio. At the hearing, the agency's technical evaluator acknowledged that, based on the information now available, the [deleted) did not appear to meet the RFP requirements regarding audio signal to noise ratio. Tr. at 24.

The RFP also provided that the proposed remote control unit must "provide [an] indication that action has been taken (such as indicator light when a button is pressed)" and "[provide an) eject button to eject tapes." PVP's proposal offered the [deleted] remote commander. It is undisputed that, as manufactured, the [deleted] does not meet these requirements. Tr. at 134-136. At the hearing, PVP explained that it intended to modify the [deleted) in order to comply with the RFP requirements. Tr. at 135- 136,. However, PVP's proposal did not provide for such modification of the remote control unit. [7]

In negotiated procurements, a proposal that fails to conform to material terms and conditions of a solicitation is unacceptable and such a noncompliant proposal may not form the basis for a valid award. Essex Electro Engineers, Inc., B-22949l, Feb. 29, 1988, 88-1 CPD Para. 215. Here, we find no rational basis for the agency's acceptance of PVP's proposal offering equipment which the agency had advised the protesters was technically unacceptable and which otherwise failed to comply with the RFP specifications the Air Force has consistently insisted reflect its minimum mandatory needs.

The protests are sustained.

RECOMMENDATION

Although PVP's proposal did not comply with the solicitation requirements, PVP was not advised during discussions of the areas in which its proposal was deficient. Accordingly, we recommend that the Air Force reopen negotiations and request another round of BAFOs from all offerors in the competitive range. [8] In the event a proposal other than PVP's is selected following submission of BAFOs, PVP's contract should be terminated and award made consistent with the provisions of the RFP. [9] we also find that Telemetrics and Techniarts are entitled to the costs of filing and pursuing their protests, including reasonable attorneys' fees. 56 Fed. Reg. 3759 (1991) (to be codified at 4 C.F.R. Sec. 21.6(d)).

Comptroller General of the United States

*The decision issued on April 3, 1992, contained proprietary information and was subject to a General Accounting Office protective order. This version of the decision has been redacted. Deletions in text are indicated by "[deleted]."

1. The protests also raised several other grounds. Since we sustain the protest on the basis that the agency had no reasonable basis to conclude that the awardee's proposal met mandatory solicitation requirements, no useful purpose would be served by addressing these other matters.

2. In contrast, the awardee's representative stated that he did not perceive all of the specifications to be mandatory requirements. Tr. at 132-134.

3. Telemetrics's proposal noted that each [deleted) would require [deleted] watts and each [deleted) would require [deleted) watts of power. This data reflected the information in the respective manufacturers published specification sheets for these products.

4. In its documents responding to the protest, PVP explained that a "power surge" occurs when power is initially applied to this type of equipment. PVP indicated that such a "power surge" associated with this type of equipment could be as much as four times the equipment's steady state requirement.

5. At the hearing, PVP's representative indicated PVP had not performed any calculations regarding the power draw of the [deleted). Tr. at 84.

6. The Air Force states:

"The technical proposal submitted by Pacific Video Products, Inc. indicates that the specification limit of 15 watts of power can be met with the [deleted); therefore, the Air Force did not determine the [deleted) to be unacceptable. . . . It is up to the contractor to fulfill the performance promised in his technical proposal."

7. The protesters also alleged that PVP's proposal failed to comply with the RFP requirement that the remote control unit provide for variable speed search capability. The remote control unit proposed by PVP permitted searches at three different speeds. Accordingly, we find no basis to question PVP'S compliance in this regard.

8. In the event the Air Force reassesses whether its minimum needs require all of the requirements included in this RFP, the RFP should be amended to reflect any such revised assessment. If the RFP is substantially revised in this regard, proposals should be accepted from all interested offerors.

9. Although the agency has authorized performance of a portion of the contract prior to resolution of the protests, we understand that the portion of the contract being performed represents less than 1 percent of the total contract price; accordingly, substantial performance has not occurred.