B-157212, APR. 7, 1966

B-157212, APR. 7, 1966

TO AERO VAC CORP.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 11, 1966, PROTESTING AGAINST THE REJECTION OF YOUR TECHNICAL PROPOSAL AND THE AWARD OF A CONTRACT TO THE NATIONAL RESEARCH CORP., CAMBRIDGE, MASSACHUSETTS, BY THE DEPARTMENT OF THE AIR FORCE PURSUANT TO REQUEST FOR PROPOSAL PR MA-5- 01604, ISSUED BY THE MIDDLETOWN AIR MATERIEL AREA, OLMSTED AIR FORCE BASE, PENNSYLVANIA.

THE REQUEST FOR PROPOSAL REQUESTED TECHNICAL AND PRICED PROPOSALS FOR FURNISHING AN ULTRA HIGH VACUUM GAGE CALIBRATION SYSTEM TO BE MANUFACTURED IN ACCORDANCE WITH PURCHASE DESCRIPTION LPM-159, EXHIBIT "A.' OF THE SIX PROPOSALS RECEIVED, ONLY THE PROPOSALS OF THE VACUUM STANDARDS CORP. IN THE AMOUNT OF $53,950 AND OF THE NATIONAL RESEARCH CORP. IN THE AMOUNT OF $53,300 WERE DETERMINED TO BE TECHNICALLY ACCEPTABLE. ON JUNE 30, 1965, AWARD WAS MADE TO THE NATIONAL RESEARCH CORP.

BY LETTER DATED JUNE 30, 1965, THE CONTRACTING OFFICER ADVISED YOUR FIRM THAT YOUR PROPOSAL WAS NOT ACCEPTABLE FROM A TECHNICAL STANDPOINT. YOUR BASIC AND ALTERNATE PROPOSALS WERE REJECTED FOR A NUMBER OF TECHNICAL REASONS, AMONG WHICH WAS THE FAILURE OF EACH PROPOSAL TO MEET THE REQUIREMENT IN THE FIRST PARAGRAPH OF PURCHASE EXHIBIT LPM-159 (EXHIBIT "A") ENTITLED "SCOPE," THAT THE EQUIPMENT OFFERED INCLUDE "* * * A VACUUM GAGE CALIBRATION FACILITY EMPLOYING THE CONCEPT OF DIFFERENTIAL PUMPING WITH FLOW RATES ACCURATELY DEFINED BY PRECISELY-DIMENSIONED ORIFICES.' IS REPORTED THAT THE FLOW RATE OF THE EQUIPMENT OFFERED BY YOUR FIRM WAS NOT ACCURATELY DEFINED BY PRECISELY-DIMENSIONED ORIFICES.

IN YOUR LETTER OF JANUARY 11, 1966, TO OUR OFFICE SIX REASONS ARE GIVEN AS TO WHY YOU BELIEVE THAT THE ACTIONS TAKEN BY THE DEPARTMENT OF THE AIR FORCE WERE CLEARLY DISCRIMINATORY AS TO YOUR FIRM AND NOT IN THE BEST INTERESTS OF THE GOVERNMENT.

THE FIRST REASON GIVEN BY YOU IS THAT THE EQUIPMENT OFFERED BY YOUR FIRM EXCEEDED THE AIR FORCE REQUIREMENTS IN EVERY RESPECT. THE RECORD INDICATES THAT UPON RECEIPT OF YOUR PROTEST THE CONTRACTING OFFICER REQUESTED AIR FORCE TECHNICAL PERSONNEL TO AGAIN EVALUATE THE EQUIPMENT PROPOSED BY YOUR FIRM AND THAT THE TECHNICAL PERSONNEL REITERATED THEIR EARLIER FINDINGS THAT YOUR BASIC PROPOSAL AND ALTERNATE PROPOSAL WERE UNACCEPTABLE. ALSO, AIR FORCE TECHNICAL PERSONNEL DETERMINED AT THAT TIME THAT THE EQUIPMENT PROPOSED BY YOUR FIRM WAS CONSIDERED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION AND THE NATIONAL BUREAU OF STANDARDS TO BE AN "EXPERIMENTAL" SYSTEM. THE TECHNICAL PERSONNEL ADVISED THE CONTRACTING OFFICER THAT THEY COULD NOT SELECT A STANDARD OR SYSTEM FOR INCLUSION IN THE CALIBRATION COMPLEX UNTIL THEY WERE SURE IT WAS THOROUGHLY TESTED,"DEBUGGED" AND EVALUATED.

THE SECOND GROUND FOR YOUR PROTEST IS THAT THE EQUIPMENT OFFERED BY YOUR FIRM IS AVAILABLE TO THE AIR FORCE AT A SAVINGS OF $35,400. WHILE THERE IS A SUBSTANTIAL DIFFERENCE BETWEEN THE PRICE QUOTED BY YOUR FIRM AND THE PRICE QUOTED BY THE SUCCESSFUL BIDDER, NATIONAL RESEARCH CORP., THERE IS NO REQUIREMENT THAT THE GOVERNMENT PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NEITHER IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE PROCUREMENT ACTIVITY, REASONABLY MEET THE ACTIVITY'S NEED.

THE THIRD BASIS FOR YOUR PROTEST IS THAT YOUR FIRM'S PROPOSAL WAS NEVER GIVEN SERIOUS CONSIDERATION BECAUSE THE AIR FORCE HAD ALREADY MADE UP ITS MIND TO PURCHASE THE EQUIPMENT FROM THE NATIONAL RESEARCH CORP. PRIOR TO ISSUING THE REQUEST FOR PROPOSAL AND THEREFORE IT WOULD NOT CONSIDER ANY OTHER BASIC APPROACHES. THE RECORD INDICATES THAT THE FOREGOING STATEMENT IS UNFOUNDED. IT SHOWS THAT THE LOWEST BIDDER, VACUUM STANDARDS CORP., AND NOT THE NATIONAL RESEARCH CORP., WOULD HAVE RECEIVED THE AWARD BUT FOR A DETERMINATION THAT VACUUM STANDARDS WAS NOT ELIGIBLE TO RECEIVE AN AWARD.

THE FOURTH GROUND FOR YOUR PROTEST IS THAT THE AIR FORCE WAS REMISS IN ITS DUTY BY IMPLYING IN PARAGRAPH 7 OF THE LETTER REQUEST FOR TECHNICAL PROPOSAL THAT OTHER BASIC APPROACHES WERE AUTHORIZED AND ENCOURAGED. YOU STATE THAT PROPOSALS WERE EVALUATED FOR STRICT CONFORMITY TO THE SPECIFICATION UPON INSTRUCTIONS OF THE MIDDLETOWN AIR MATERIEL AREA. WHILE PARAGRAPH 7 OF THE LETTER REQUEST FOR PROPOSAL DID ASK FOR MULTIPLE PROPOSALS AND DIFFERENT BASIC APPROACHES, PARAGRAPH 6 THEREOF INCLUDED THE CRITERIA FOR EVALUATION OF TECHNICAL PROPOSALS AND SPECIFICALLY STATED THAT THE TECHNICAL PROPOSALS WOULD BE EVALUATED PRIMARILY ON THE METHOD OF APPROACH USED TO MEET THE CHARACTERISTICS OUTLINED ON THE PURCHASE EXHIBIT. ALTHOUGH DIFFERENT BASIC APPROACHES WERE SOLICITED, PROPOSALS WERE REQUIRED TO BE WITHIN THE CONFINES OF THE CHARACTERISTICS LISTED ON THE PURCHASE EXHIBIT. THEREFORE, SINCE YOUR PROPOSAL WAS NOT WITHIN THE CONFINES OF THE LISTED CHARACTERISTICS, IT HAD TO BE CONSIDERED AS A PROPOSAL FOR AN ALTERNATE ITEM AND THEREFORE COULD NOT BE ACCEPTED UNDER THE SOLICITATION.

THE FIFTH REASON FOR YOUR PROTEST IS THAT THE AIR FORCE FAILED TO CONFORM TO PARAGRAPH 7 OF THE LETTER REQUEST FOR TECHNICAL PROPOSAL WHICH STATES THAT "EACH TECHNICAL PROPOSAL SUBMITTED WILL BE SEPARATELY EVALUATED AND THE OFFEROR WILL BE NOTIFIED AS TO ITS ACCEPTABILITY.' THE RECORD INDICATES THAT BY LETTER DATED JUNE 30, 1965, YOUR FIRM WAS NOTIFIED THAT YOUR TECHNICAL PROPOSALS WERE NOT ACCEPTABLE. IN THAT CONNECTION, IT IS NOTED THAT IN THE LETTER REQUEST FOR TECHNICAL PROPOSAL DATED OCTOBER 30, 1964, PROSPECTIVE BIDDERS WERE ADVISED IN PARAGRAPH 4 THEREOF THAT UNSUCCESSFUL BIDDERS WILL BE NOTIFIED AFTER NEGOTIATION OF THE CONTRACT WITH THE SUCCESSFUL BIDDER. SINCE JUNE 30, 1965, WAS THE DATE ON WHICH THE AWARD WAS MADE TO THE SUCCESSFUL BIDDER, IT APPEARS THAT THE AIR FORCE COMPLIED WITH THE PROVISIONS OF PARAGRAPH 4 OF THE LETTER REQUEST FOR TECHNICAL PROPOSAL.

THE SIXTH BASIS FOR YOUR PROTEST IS THAT THE AIR FORCE DID NOT INVITE OFFICIALS OF YOUR FIRM TO DISCUSS YOUR TECHNICAL PROPOSALS PRIOR TO THE MAKING OF THE AWARD TO THE NATIONAL RESEARCH CORP. THE AIR FORCE STATES THAT IT DID NOT CONSIDER IT NECESSARY TO DISCUSS YOUR TECHNICAL PROPOSALS WITH OFFICIALS OF YOUR CORPORATION BECAUSE SUCH PROPOSALS DID NOT MEET THE CHARACTERISTICS OUTLINED IN THE PURCHASE EXHIBIT. ALSO, IT WAS STATED THAT REVISION OF YOUR PROPOSAL WOULD HAVE AMOUNTED TO A MAJOR REVISION AND WOULD HAVE BEEN A NEW TECHNICAL PROPOSAL.

IN OUR DECISION 40 COMP. GEN. 40, 41, WE COMMENTED THAT:

"* * * IN THE EVENT ANY TECHNICAL PROPOSAL IS CONSIDERED BY THE EVALUATION GROUP TO BE ON THE PERIPHERY OF ACCEPTABILITY IN THAT IT REQUIRES ONLY SOME MINOR POINT OF CLARIFICATION, THE PROCUREMENT OFFICIALS WILL PERMIT THE CONTRACTOR TO SUPPLY THE INFORMATION TO BRING THE PROPOSAL UP TO AN ACCEPTABLE LEVEL. BUT WHERE A TECHNICAL PROPOSAL IS MATERIALLY DEFICIENT, THE PROPOSER IS NOT ACCORDED AN OPPORTUNITY TO QUALIFY HIS PROPOSAL. THE RESPONSIBILITY FOR DETERMINING WHETHER ANY TECHNICAL PROPOSAL MEET THE GOVERNMENT'S PERFORMANCE SPECIFICATION IS SOLELY THAT OF THE PROCURING ACTIVITY.'

THE RATIONALE FOR MAKING THIS RESPONSIBILITY SOLELY THAT OF PROCURING ACTIVITY IS IN CONSONANCE WITH DECISIONS OF THIS OFFICE DEALING WITH THE EVALUATION OF TECHNICAL PERFORMANCE DATE OFFERED IN RESPONSE TO INVITATIONS FOR BIDS OR REQUESTS FOR PROPOSALS. WE HAVE CONSISTENTLY HELD THAT THE QUESTION AS TO WHETHER THE TECHNICAL PERFORMANCE REQUIREMENTS ARE NECESSARY TO MEET THE MINIMUM NEEDS OF THE PROCURING ACTIVITY, AND THE QUESTION AS TO THE MATERIALITY OF THE DIFFERENCES BETWEEN THE PRODUCT OFFERED AND THE ONE CALLED FOR IN THE SPECIFICATIONS, ARE NOT ORDINARILY CONSIDERED TO BE WITHIN THE JURISDICTION OF THIS OFFICE.

IN VIEW OF THE FACTS REPORTED IN THIS CASE, AND FOR THE REASONS SET OUT IN THE ABOVE-CITED DECISION, WE WOULD NOT BE JUSTIFIED IN OBJECTING TO THE ADMINISTRATIVE ACTION TAKEN.