Protest Against Two-Step Procurement Conducted by Army

B-199371: Feb 4, 1981

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A firm protested a two-step, formally advertised procurement by the Army for the purchase of laser rangefinders and rangefinder test sets. The technical data package included with the request for technical proposals (RFTP) incorporated some drawings but excluded others, because the original developer of the items declined to provide the Army with detailed drawings for components which had been developed at its own expense. The RFTP also contained special capability specifications requiring bidders to have a history of successful manufacture of pulsed solid-state laser rangefinders. Bidders could meet this requirement through subcontracting. The protester alleged that the special capability requirements unduly restricted competition; the technical data package was defective, because the developer had refused to quote on the components for which the drawings were lacking; and the absence of build-to-print drawings effectively converted the solicitation to a sole source to the developer. The protest was first filed with the Army and, after a bidders' conference, it was filed with GAO. The timeliness of the protest was questioned, but the record was not clear on this point. Doubt as to the timeliness of a protest is resolved in favor of the protester. GAO held that the special capability requirements did not unduly restrict competition. In a two-step, formally advertised procurement, the first step calling for technical proposals is similar to a negotiated procurement in which GAO has held that traditional responsibility criteria, such as experience and capability, may be legitimate bases for assessing technical acceptability. GAO believed that the protester's allegations concerning the insufficiency or lack of detailed drawings to be little more than objections to the business uncertainties in this procurement. It has held that the mere presence of risk in a procurement does not make the solicitation improper. GAO did not agree that the developer might have a competitive edge in this procurement. It attributed the developer's refusal to release the drawings to the developer's efforts in the performance of a prior contract for a foreign government rather than to any preference or unfair action by the Army. The Government is not required to equalize this type of competitive advantage. Accordingly, the protest was denied.