B-187586, JANUARY 21, 1977

B-187586: Jan 21, 1977

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ALTHOUGH GAO WILL REVIEW AFFIRMATIVE RESPONSIBILITY DETERMINATIONS BASED ON OBJECTIVE CRITERIA SET FORTH IN SOLICITATION. WHERE SOLICITATION REQUIRES THAT OFFERORS SUBMIT PROOF OF PRIOR SUCCESSFUL INSTALLATIONS SIMILAR IN NATURE TO WHAT IS CALLED FOR BY SPECIFICATIONS. GAO WILL NOT OBJECT TO CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION SINCE RECORD SHOWS OFFEROR DID SUBMIT EVIDENCE OF SOME PRIOR WORK AND EXTENT TO WHICH THAT WORK IS SIMILAR TO WORK REQUIRED BY SOLICITATION IS LARGELY WITHIN SOUND DISCRETION OF CONTRACTING OFFICER. THE FORMER GROUND WAS NOT DISCUSSED OR PURSUED BY MOSLER IN ITS DETAILED STATEMENT FILED IN SUPPORT OF THE PROTEST. WE THEREFORE CONSIDER THE QUESTION OF THE GOVERNMENT'S FAILURE TO CONDUCT MEANINGFUL NEGOTIATIONS WITH MOSLER TO HAVE BEEN WITHDRAWN.

B-187586, JANUARY 21, 1977

ALTHOUGH GAO WILL REVIEW AFFIRMATIVE RESPONSIBILITY DETERMINATIONS BASED ON OBJECTIVE CRITERIA SET FORTH IN SOLICITATION, WHERE SOLICITATION REQUIRES THAT OFFERORS SUBMIT PROOF OF PRIOR SUCCESSFUL INSTALLATIONS SIMILAR IN NATURE TO WHAT IS CALLED FOR BY SPECIFICATIONS, GAO WILL NOT OBJECT TO CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION SINCE RECORD SHOWS OFFEROR DID SUBMIT EVIDENCE OF SOME PRIOR WORK AND EXTENT TO WHICH THAT WORK IS SIMILAR TO WORK REQUIRED BY SOLICITATION IS LARGELY WITHIN SOUND DISCRETION OF CONTRACTING OFFICER.

MOSLER AIRMATIC SYSTEMS DIVISION:

MOSLER AIRMATIC SYSTEMS DIVISION (MOSLER) PROTESTS THE AWARD OF A CONTRACT TO RCA SERVICE COMPANY (RCA) FOR THE DESIGN AND INSTALLATION OF ULTRASONIC DOOR AND VAULT ALARM SYSTEMS FOR THE DEPARTMENT OF THE TREASURY, BUREAU OF THE MINT, UNDER REQUEST FOR PROPOSALS BM 76-58. ALTHOUGH MOSLER ORIGINALLY ASSERTED TWO GROUNDS FOR PROTEST-- THE GOVERNMENT'S FAILURE TO CONDUCT MEANINGFUL NEGOTIATIONS WITH MOSLER, AND THE FAILURE OF RCA TO MEET THE EXPERIENCE REQUIREMENTS SPECIFIED IN THE RFP-- THE FORMER GROUND WAS NOT DISCUSSED OR PURSUED BY MOSLER IN ITS DETAILED STATEMENT FILED IN SUPPORT OF THE PROTEST. WE THEREFORE CONSIDER THE QUESTION OF THE GOVERNMENT'S FAILURE TO CONDUCT MEANINGFUL NEGOTIATIONS WITH MOSLER TO HAVE BEEN WITHDRAWN.

ON SEPTEMBER 16, 1976, TWO PROPOSALS WERE RECEIVED, WITH PRICES OFFERED AS FOLLOWS:

1. RCA . . . . . . . $194,981.00 2. MOSLER. . . . . . 407,355.00

THE AGENCY REPORTS THAT "BOTH PROPOSALS WERE SUBJECTED TO A COMPREHENSIVE TECHNICAL EVALUATION * * * AND BOTH WERE FOUND TO BE IN COMPLIANCE WITH ALL OF THE REQUIREMENTS OF THE REQUEST FOR PROPOSALS." NEGOTIATIONS WERE CONDUCTED WITH BOTH OFFERORS AND BEST AND FINAL OFFERS WERE REQUESTED NO LATER THAN SEPTEMBER 24, 1976, WITH THE RESULT THAT PRICES OFFERED WERE REDUCED AS FOLLOWS:

1. RCA . . . . . . . $187,062.00 2. MOSLER. . . . . . 397,980.00

CONTRACT NO. TM 76-1059 WAS AWARDED TO RCA ON SEPTEMBER 29, 1976. SECTION 2.1 OF THE SOLICITATION STATES IN PERTINENT PART THAT:

" * * * THE SUCCESSFUL CONTRACTOR SHALL MAKE AVAILABLE TO THE U.S. MINT, PROOF OF SUCCESSFUL INSTALLATIONS SIMILAR IN NATURE * * * ."

RCA'S PROPOSAL CONTAINED A "BRIEF DESCRIPTION" OF SEVERAL SYSTEMS PROVIDED BY THAT FIRM WHICH RCA STATED WERE "SIMILAR IN SIZE OR COMPLEXITY." MOSLER, HOWEVER, ASSERTS THAT RCA HAS FAILED TO PROVE THAT ANY OF ITS PRIOR PROJECTS CONSTITUTED A "SUCCESSFUL INSTALLATION, SIMILAR IN NATURE." ACCORDING TO MOSLER, TWO OF THE PROJECTS LISTED BY RCA INVOLVED CLOSED CIRCUIT TELEVISION SURVEILLANCE SYSTEMS AND BUILDING CONTROLS WHICH ARE NOT "SIMILAR IN NATURE" BECAUSE THEY DO NOT MEET THE SPECIFICATION REQUIREMENT FOR CABLE INTEGRITY, SYSTEM SUPERVISION AND DATA DISPLAY TO THE GUARD. IN ADDITION, THE PROTESTER ASSERTS THAT A THIRD INSTALLATION LISTED BY RCA WAS NOT COMPLETE AND THUS DID NOT MEET THE "SUCCESSFUL INSTALLATION" CRITERION.

THE AGENCY AND RCA POINT OUT THAT THE SYSTEM PROPOSED BY RCA INCLUDES THE USE OF AMERICAN MULTIPLEX EQUIPMENT (THE SAME EQUIPMENT PROPOSED BY MOSLER) AND THAT RCA'S PROPOSAL INCLUDED A LISTING OF INSTALLATIONS WHICH USED AMERICAN MULTIPLEX EQUIPMENT IN SYSTEMS "SIMILAR" TO THE ONE REQUIRED BY THE CONTRACT. IT IS FURTHER STATED THAT THROUGH THE USE OF SUCH EQUIPMENT, RCA'S SYSTEM WILL MEET THE SPECIFICATIONS. THE AGENCY FURTHER STATES THAT TWO COMPLETED RCA INSTALLATIONS ARE "FUNCTIONALLY IDENTICAL TO THE BUREAU OF THE MINT SYSTEM, ALTHOUGH MUCH MORE COMPLEX AN EFFORT * * *

IT APPEARS FROM THE RECORD THAT THE RFP EXPERIENCE PROVISION WAS CONSIDERED NOT AS PART OF THE TECHNICAL EVALUATION, BUT RATHER AS A FACTOR IN DETERMINING OFFEROR RESPONSIBILITY (CAPABILITY TO PERFORM). ALTHOUGH THIS OFFICE GENERALLY NO LONGER REVIEWS QUESTIONS REGARDING AN AGENCY'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY, SEE CENTRAL METAL PRODUCTS, 54 COMP.GEN. 66 (1974), 74-2 CPD 64; UNITED HATTERS, CAP AND MILLINERY WORKERS INTERNATIONAL UNION, 53 COMP.GEN. 931 (1974), 74-1 CPD 310, WE DO REVIEW MATTERS WHERE THE QUESTION IS WHETHER THERE HAS BEEN COMPLIANCE WITH OBJECTIVE RESPONSIBILITY CRITERIA SET FORTH IN THE SOLICITATION. DATA TEST CORPORATION, 54 COMP.GEN. 499 (1974), 74-2 CPD 365; YARDNEY ELECTRIC CORPORATION, 54 COMP.GEN. 509 (1974), 74-2 CPD 376. HOWEVER, EVEN IN THESE CASES, OUR OFFICE WILL NOT OBJECT TO A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY UNLESS IT IS SHOWN TO BE WITHOUT A REASONABLE BASIS. COMMERCIAL ENVELOPE MANUFACTURING COMPANY, INC., B-186042, APRIL 14, 1976, 76-1 CPD 254.

HERE THE RFP PROVISION DOES NOT REQUIRE THAT A PROSPECTIVE CONTRACTOR HAVE A PARTICULAR LEVEL OF EXPERIENCE IN ORDER TO BE CONSIDERED FOR AWARD. IT MERELY REQUIRES THAT THE CONTRACTOR SUBMIT "PROOF" OF HAVING PERFORMED WORK "SIMILAR" TO THAT REQUIRED BY THE RFP. SINCE IT IS CLEAR THAT "SIMILAR IN NATURE" IS NOT THE SAME THING AS "IDENTICAL," THE EXTENT TO WHICH THE CLAIMED "SIMILAR" EXPERIENCE IS SUFFICIENTLY RELATED TO THE RFP-REQUIRED WORK TO INDICATE THE LIKELIHOOD THAT THE OFFEROR COULD PERFORM IN ACCORDANCE WITH CONTRACTUAL REQUIREMENTS MUST BE LEFT LARGELY TO THE SOUND DISCRETION AND SUBJECTIVE JUDGMENT OF THE CONTRACTING OFFICER. THUS, THE RFP PROVISION CAN BE REGARDED AS AN OBJECTIVE RESPONSIBILITY CRITERION ONLY TO THE EXTENT THAT IT REQUIRES SUBMISSION OF PROOF OF SOME EXPERIENCE. IN THIS CONNECTION, WE HAVE HELD THAT CONTRACTING OFFICERS, IN DETERMINING BIDDER OR OFFEROR COMPLIANCE WITH OBJECTIVE RESPONSIBILITY CRITERIA, ARE NOT LIMITED TO ACCEPTING THE PRECISE EXPERIENCE, ETC., THAT MAY BE CALLED FOR, BUT MAY INSTEAD BASE AN AFFIRMATIVE RESPONSIBILITY DETERMINATION ON EXPERIENCE, ETC. THAT IS REASONABLY COMPARABLE TO THAT SPECIFIED BY THE CRITERIA. HARRY KAHN ASSOCIATES, INC., B-186046, JULY 19, 1976, 76-2 CPD 51; HOUGHTON ELEVATOR DIVISION ET AL., 55 COMP.GEN. 1051 (1976), 76-1 CPD 294.

IN LIGHT OF THE ABOVE AND THE RECORD THAT HAS BEEN PRESENTED TO US, WE FIND THAT THE CONTRACTING OFFICER'S DETERMINATION REGARDING RCA'S RESPONSIBILITY HAD AN ADEQUATE BASIS AND WAS REASONABLE UNDER THE CIRCUMSTANCES. IT IS CLEAR THAT RCA DID SUBMIT A LIST OF WHAT IT CLAIMED TO BE SIMILAR EXPERIENCE, AND THE CONTRACTING OFFICER FOUND THAT THIS LIST INCLUDED PRIOR RCA INSTALLATIONS WHICH UTILIZED THE SAME EQUIPMENT PROPOSED FOR THE MINT'S ALARM SYSTEMS AND WHICH WERE MORE COMPLEX THAN WHAT IS REQUIRED FOR THIS PROCUREMENT. ALTHOUGH ONE OF THESE INSTALLATIONS HAS NOT BEEN ENTIRELY COMPLETED AT THE TIME OF AWARD (IT IS REPORTED THAT THE RCA DESIGN PHASE WAS "COMPLETED LAST YEAR" AND THAT "FINAL SYSTEMS INSTALLATION IS IN PROGRESS"), THE RECORD, AS SET FORTH ABOVE, DOES NOT PERMIT THE CONCLUSION THAT AWARD TO RCA WAS MADE WITHOUT ANY SHOWING THAT THE FIRM HAD SUCCESSFULLY INSTALLED SIMILAR SYSTEMS.

ACCORDINGLY, THE PROTEST IS DENIED.