B-169633, MAY 6, 1971

B-169633, MAY 6, 1971

BID PROTEST - REOPENING NEGOTIATIONS - AMBIGUOUS SPECIFICATIONS AFFIRMING PRIOR DECISION WHICH CONFIRMED AN ADMINISTRATIVE RECOMMENDATION TO REOPEN NEGOTIATIONS UNDER AN RFP ISSUED BY ARMY MATERIEL COMMAND FOR DESIGN OF A MULTIPLEX ANALOG SYSTEM AND DENYING PROTEST OF VIDAR CORPORATION AGAINST THE ACTION. A STATEMENT IN THE RFP SPECIFYING, "NO CHANGES ARE AUTHORIZED TO BE MADE TO THE REQUIREMENTS OF THIS SOLICITATION. IN THE EVENT THE OFFEROR DOES NOT INTEND TO MEET ALL THE SPECIFICATIONS HEREIN SET FORTH OR SUBMITS ALTERNATE SOLICITATIONS, A FULLY DETAILED DESCRIPTION SHALL BE FURNISHED SETTING FORTH HIS INTENT," IS AMBIGUOUS ON ITS FACE. IT CAN REASONABLY BE CONSTRUED AS A DIRECTION FOR COMPLIANCE AND AS INVITING SPECIFICALLY DETAILED DEVIATIONS FROM THE SPECIFICATIONS. THEREFORE, VIDAR'S CONTENTION THAT THE DEVIATIONS IN ITS PROPOSAL WERE MINOR IS NOT DISPOSITIVE OF THE MATTER BECAUSE THE AMBIGUOUS LANGUAGE MAY WELL HAVE CAUSED ANOTHER BIDDER TO THINK MODIFICATIONS WERE NOT PERMITTED AND ALL OFFERORS MAY NOT HAVE HAD AN EQUITABLE OPPORTUNITY TO HAVE THEIR PROPOSALS CONSIDERED ON A SIMILAR BASIS.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER AMCGC-P DATED DECEMBER 7, 1970, WITH ENCLOSURES, FROM THE DEPUTY GENERAL COUNSEL, HEADQUARTERS ARMY MATERIEL COMMAND (AMC), REPORTING ON THE REQUEST OF VIDAR CORPORATION'S COUNSEL FOR RECONSIDERATION OF DECISION B-169633, AUGUST 20, 1970, 50 COMP. GEN. , WHICH AGREED WITH THE ADMINISTRATIVE RECOMMENDATION TO REOPEN NEGOTIATIONS UNDER REQUEST FOR PROPOSALS (RFP) NO. DAAA21-70-R-0207. FOR THE REASONS STATED BELOW, IT IS OUR VIEW THAT THE CIRCUMSTANCES DICTATE A REOPENING OF THE NEGOTIATIONS.

THE DECEMBER 7 LETTER ADVISES THAT THE PRIOR ADMINISTRATIVE RECOMMENDATION HAS BEEN RECONSIDERED AND, IF OUR OFFICE AGREES THAT THE SPECIFICATION DEVIATIONS IN ALL PROPOSALS ARE MINOR AND MAY BE WAIVED, AMC PROPOSES NOT TO REOPEN NEGOTIATIONS AND TO MAKE AN AWARD TO THE LOWEST OFFEROR. AS NOTED IN OUR AUGUST 20 DECISION, THE TECHNICAL EVALUATORS DETERMINED THAT THE DEVIATIONS REMAINING IN THE FINAL PROPOSALS ARE MINOR, INSIGNIFICANT, AND OF NO MATERIAL EFFECT ON THE OVERALL PERFORMANCE OF THE PROPOSED SYSTEM. WE DO NOT BELIEVE THAT THE IMMATERIALITY OF THE DEVIATIONS IN THE PROPOSALS AS REVISED IS DISPOSITIVE OF THE MATTER.

WE NOTE THAT THE RFP CONTAINED DESIGN SPECIFICATIONS STATED IN MANDATORY TERMS AS TO THE SUBCARRIER DISCRIMINATOR COMPONENT OF THE MULTIPLEX ANALOG SYSTEM BEING PROCURED. FURTHER, WE NOTE THAT AMC PROPOSES TO MAKE AWARD TO THE VIDAR CORPORATION, WHICH DEVIATED FROM THE SUBCARRIER DISCRIMINATOR SPECIFICATIONS, ON THE BASIS THAT AMC'S TECHNICAL EVALUATORS HAVE CONCLUDED THAT SUCH DEVIATIONS WILL NOT MATERIALLY AFFECT THE DESIRED PERFORMANCE OF THE MULTIPLEX ANALOG SYSTEM. WE UNDERSTAND THAT SUCH DEVIATIONS HAVE BEEN WAIVED AS MINOR WITHOUT THE BENEFIT OF NEGOTIATIONS. HOWEVER, OUR REVIEW OF THE NEGOTIATION RECORD INDICATES THAT THE STANDARD (OFF-THE-SHELF) ITEMS OFFERED IN THE ORIGINAL VIDAR PROPOSAL HAD OTHER DEFICIENCIES OF A MATERIAL NATURE WHICH WERE CORRECTED DURING NEGOTIATIONS TO COMPLY WITH CERTAIN ASPECTS OF THE SPECIFICATIONS. IN THAT REGARD, DATA-CONTROL SYSTEMS, INC., NOW ALLEGES THAT, IF IT KNEW THAT THE DISCRIMINATOR SPECIFICATIONS DID NOT HAVE TO BE STRICTLY COMPLIED WITH, IT WOULD HAVE OFFERED A DIFFERENT TYPE OF DISCRIMINATOR IN ITS TECHNICAL PROPOSAL. WE NOTE THAT DATA-CONTROL SYSTEMS' PROPOSAL DID NOT HAVE ANY MATERIAL DEVIATION WHICH REQUIRED CORRECTION, EXCEPT POSSIBLY IN ONE AREA UNRELATED TO THE DISCRIMINATOR.

AT THE TOP OF PAGE 19 OF THE RFP, THE FOLLOWING STATEMENT APPEARS:

"NOTE:

"NO CHANGES ARE AUTHORIZED TO BE MADE TO THE REQUIREMENTS OF THIS SOLICITATION. IN THE EVENT THE OFFEROR DOES NOT INTEND TO MEET ALL THE SPECIFICATIONS HEREIN SET FORTH OR SUBMITS ALTERNATE SOLICITATIONS, A FULLY DETAILED DESCRIPTION SHALL BE FURNISHED SETTING FORTH HIS INTENT."

ON ITS FACE, THE STATEMENT IS AMBIGUOUS AND MISLEADING. IT REASONABLY CAN BE CONSTRUED AS A DIRECTION THAT THERE BE COMPLIANCE WITH SPECIFICATION REQUIREMENTS AND AS INVITING SPECIFICALLY DETAILED DEVIATIONS FROM THE SPECIFICATIONS. WE ALSO NOTE THE SPECIFICATION REQUIRED THAT THE SYSTEM "CONSIST OF ONLY STANDARD UNITS (OFF THE SHELF)." THESE PROVISIONS OF THE SOLICITATION MAY WELL HAVE LEFT OFFERORS UNCERTAIN AS TO THE EXTENT TO WHICH THEIR STANDARD UNITS COULD BE MODIFIED TO MEET THE SPECIFICATIONS AND THE EXTENT TO WHICH DEVIATIONS FROM THE SPECIFICATIONS WOULD BE WAIVED. IN THIS REGARD, WE NOTE THAT DATA-CONTROL SYSTEMS SPECIFICALLY RAISED A QUESTION AS TO THE ACCEPTABILITY OF THE DISCRIMINATOR OFFERED BY VIDAR IN ITS LETTER OF MARCH 25, 1970. DATA- CONTROL ALLEGES, AS STATED ABOVE, THAT IF IT HAD BEEN ADVISED OF ANY RELAXATION OF THE SPECIFICATIONS, IT WOULD HAVE OFFERED A DIFFERENT DISCRIMINATOR.

VIDAR CONTENDS INFORMALLY THAT THE DISCRIMINATOR DATA-CONTROL HAS INDICATED IT DID NOT OFFER, BUT WOULD PROPOSE NOW, CONTAINS MAJOR DEVIATIONS. HOWEVER, IF ONE PROPOSER IS ALLOWED TO MAKE MODIFICATIONS TO OVERCOME MATERIAL DEFICIENCIES IN ITS STANDARD EQUIPMENT, THE SAME OPPORTUNITY SHOULD BE GIVEN TO ALL. WE BELIEVE THE AMBIGUOUS LANGUAGE IN THE RFP MAY WELL HAVE CAUSED DATA-CONTROL TO THINK THAT MODIFICATIONS OF THIS NATURE WOULD NOT BE PERMITTED. IN VIEW THEREOF, IT APPEARS THAT ALL OFFERORS MAY NOT HAVE HAD AN EQUITABLE OPPORTUNITY TO QUOTE AND HAVE THEIR PROPOSALS CONSIDERED ON A SIMILAR BASIS.

THEREFORE, NEGOTIATIONS SHOULD BE REOPENED. AND TO INSURE THAT EQUALITY OF COMPETITION WILL BE EXTENDED TO ALL OFFERORS, THE RFP SHOULD BE APPROPRIATELY AMENDED, WITH WRITTEN NOTICE THEREOF TO ALL OFFERORS, IN ACCORDANCE WITH THE REQUIREMENTS OF PARAGRAPH 3-805.1(E) OF THE ARMED SERVICES PROCUREMENT REGULATION. SEE, IN THIS REGARD, 49 COMP. GEN. 156, 161-162 (1969).

IN THE DECEMBER 7 REPORT SOME RESERVATION WAS EXPRESSED IN REOPENING NEGOTIATIONS SINCE A PREAWARD SURVEY WAS PERFORMED ON VIDAR. IT IS STATED THAT ALTHOUGH PRICES HAVE NOT BEEN DISCLOSED, THE OCCURRENCE OF THE PREAWARD SURVEY MAY TAINT THE REOPENING OF NEGOTIATIONS WITH THE ASPECTS OF AN AUCTION. HOWEVER, IN 48 COMP. GEN. 323 (1968), AT PAGE 324, IT WAS STATED:

"*** ALTHOUGH IT IS POSSIBLE THAT THE MERE INSTITUTION OF A PREAWARD SURVEY CAN IN A PARTICULAR CASE GIVE RISE TO THE INFERENCE THAT AN OFFEROR'S PRICE IS NOT LOW IN RELATION TO THAT OF ANOTHER OFFEROR, WE DO NOT BELIEVE THAT SUCH NECESSARY ACTION ON THE PART OF THE GOVERNMENT CONSTITUTES AN AUCTION TECHNIQUE PER SE. *** "

ACCORDINGLY, WE ADHERE TO THE CONCLUSION EXPRESSED IN OUR PRIOR DECISION.