Matter of: Acoustic Systems File: B-250478 Date: January 28, 1993

B-250478: Jan 28, 1993

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PROCUREMENT Competitive Negotiation Offers Competitive ranges Exclusion Administrative discretion Proposal which was included in the competitive range because it was considered to be capable of being made acceptable through discussions subsequently was properly excluded from competitive range after the contracting agency specifically informed the offeror of the deficiencies in its proposal. Proposals were received from Acoustic and Industrial Acoustics Company (Industrial) on July 10. The Army informed Acoustic in writing that its laminated glass proposal was unacceptable and orally informed the company that glass of the required type and in the required dimensions was commercially available.

Matter of: Acoustic Systems File: B-250478 Date: January 28, 1993

PROCUREMENT Competitive Negotiation Offers Competitive ranges Exclusion Administrative discretion Proposal which was included in the competitive range because it was considered to be capable of being made acceptable through discussions subsequently was properly excluded from competitive range after the contracting agency specifically informed the offeror of the deficiencies in its proposal, and the offeror failed to cure the deficiencies.

Attorneys

DECISION Acoustic Systems (Acoustic) protests the rejection of its proposal as technically unacceptable under request for proposals (RFP) No. DAAD05-92-R-0142, issued by the Department of the Army, Aberdeen Proving Ground, for the design, fabrication, and installation of an acoustical chamber within an existing building.

We deny the protest.

The RFP required, among other things, that the chamber windows be "double 1/4 inch optical grade glass," in sections having lengths of 15 feet and widths of 6 feet, 2 1/2 inches. The RFP also provided that proposals would be rated as acceptable only if they satisfied all technical factors and subfactors, and that award would be made to the responsible offeror who submitted the lowest priced, technically acceptable proposal.

Proposals were received from Acoustic and Industrial Acoustics Company (Industrial) on July 10, 1992. On August 13, 1992, the Army found Industrial's technical proposal to be technically acceptable. By contrast, the contracting officer found Acoustic's technical proposal to be unacceptable, but capable of being made acceptable through discussions, since, among other deficiencies, Acoustic had proposed "9/32 inch laminated glass" for the windows. Subsequently, the Army informed Acoustic in writing that its laminated glass proposal was unacceptable and orally informed the company that glass of the required type and in the required dimensions was commercially available. Nevertheless, Acoustic thereafter, on August 31, 1992, proposed optical grade glass having a thickness of only .236 inch and in sections having lengths of 59 inches and widths of 72 inches (substantially less than the specified length of 15 feet and width of 6 feet, 2 1/2 inches). Acoustic asserted that glass meeting the RFP requirements was not commercially available. The Army rejected Acoustic's proposal on September 10, 1992, as technically unacceptable for failing to conform to the RFP requirements for the glass.

When a contracting agency informs an offeror of deficiencies in the offeror's proposal, which has been initially included in the competitive range only because it is considered to be capable of being made acceptable, and the offeror responds by confirming its intent not to conform to the specifications, the agency may properly thereafter simply notify the offeror that the proposal is no longer in the competitive range. The agency is not required to engage in repeated rounds of discussions in these circumstances. Fraser-Volpe Corp., B-237617, Mar. 12, 1990, 90-1 CPD Para. 263.

While Acoustic now admits (in its protest comments) that the required glass is commercially available, during its discussions with the agency, Acoustic refused to propose compliant glass, insisting that it was not commercially available. Accordingly, the agency properly excluded Acoustic's proposal from the competitive range for failure to satisfy a material technical requirement.

We deny the protest.