B-156734, NOV. 10, 1965

B-156734, NOV. 10, 1965

TO APPLIED LASERS, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF MAY 7, 1965, PROTESTING THE AWARD OF REQUEST FOR PROPOSALS NO. (F) AMC (R) 29-040-65-877 TO THE KORAD CORPORATION BY CONTRACT NO. DA-29-040-AMC-1326 (R); YOU ALLEGE THAT YOUR BID WAS THE LOWEST BY $2,200, AND THAT THE EQUIPMENT OFFERED BY YOU MET THE SPECIFIED REQUIREMENTS.

THE NEED FOR A "Q" SWITCHED LASER SYSTEM WAS FIRST FORMALLY ADVERTISED FOR UNDER INVITATION FOR BIDS NO. AMC (R) 20-040-65-107, ISSUED ON DECEMBER 23, 1964, BUT A TECHNICAL EVALUATION DETERMINED THAT NONE OF THE BIDS RECEIVED WAS RESPONSIVE. AS THE NEED FOR THE LASER SYSTEM WAS URGENT THE CONTRACTING OFFICER ISSUED THE RFP,UNDER THE NEGOTIATION AUTHORITY OF ASPR 3-210.2, ON MARCH 9, 1965, COVERING THREE ITEMS, INCLUDING THE "Q" SWITCHED LASER SYSTEM AS ITEM NO. 3.

IN ARRIVING AT THE REQUIREMENT AND DRAFTING THE PURCHASE DESCRIPTION FOR ITEM NO. 3 OF THE REQUEST THE GOVERNMENT FIRST DETERMINED EXACTLY WHAT IT WANTED. ONE OF THE SPECIFIED REQUIREMENTS WAS THAT TWO ENERGY STORAGE UNITS WOULD BE FURNISHED BY THE CONTRACTOR ALONG WITH THE LASER, NOT AS SPARES, BUT TO BE ADDED TO THE MACHINE TO INCREASE ITS CAPACITY SO THAT DIFFERENT TYPES OF LASER HEADS COULD BE USED, THUS PROVIDING GREATER VERSATILITY IN THE EXPERIMENTAL AND DEVELOPMENTAL WORK FOR WHICH IT WAS DESIGNED. THIS REQUIREMENT WAS IMPORTANT BECAUSE THE "Q" SWITCHED LASER SYSTEM DOES NOT ALLOW FOR THE ADDITION OF SPARE ENERGY STORAGE UNITS.

FIVE OF THE EIGHT PROPOSALS RECEIVED SUBMITTED OFFERS ON ITEM NO. 3. THE LOWEST BID WAS DETERMINED NOT TO BE TECHNICALLY ACCEPTABLE AND THE NEXT LOW BID, BY YOUR FIRM, WAS LIKEWISE FOUND TO BE TECHNICALLY UNACCEPTABLE SINCE IT DID NOT INCLUDE TWO EXTRA ENERGY STORAGE UNITS. THE TECHNICAL REPRESENTATIVE AND THE CONTRACT SPECIALIST ASSIGNED TO THE PROCUREMENT TELEPHONED YOUR FIRM AND REQUESTED MORE TECHNICAL LITERATURE ON THE OFFERED EQUIPMENT. BY LETTER DATED APRIL 12, 1965, YOU CLARIFIED SOME QUESTIONS CONCERNING THE POWER SUPPLY BUT NOT THE ENERGY STORAGE UNITS. BECAUSE APPLIED LASERS, INCORPORATED, FAILED TO SUBMIT SUFFICIENT INFORMATION WITH ITS PROPOSAL TO ENABLE THE GOVERNMENT TO MAKE A COMPLETE TECHNICAL EVALUATION, AND THEN FAILED TO SUPPLY ADDITIONAL INFORMATION WHEN SPECIFICALLY ASKED, THE PROPOSAL WAS CLASSIFIED BY THE CONTRACTING OFFICER AS NOT TECHNICALLY ACCEPTABLE AND FURTHER ACTION WAS DEEMED UNNECESSARY.

A SECOND COMPLETE TECHNICAL EVALUATION COVERING THE SAME PROPOSAL WAS CONDUCTED AT THE REQUEST OF THE CONTRACTING OFFICER, AND THAT REPORT DATED JUNE 17, 1965, CONFIRMED THE EARLIER DETERMINATION THAT IT WAS TECHNICALLY UNACCEPTABLE. IT FURTHER STATED THAT THE PRICE DIFFERENCE CLAIM OF $2,200 WAS MISLEADING BECAUSE HAD APPLIED LASERS, INCORPORATED, OFFERED TWO EXTRA ENERGY STORAGE UNITS WITH ITS PROPOSAL THE PRICE WOULD HAVE BEEN ALMOST THE SAME AS THAT OF THE SUCCESSFUL PROPOSER.

IT IS THE ESTABLISHED POSITION OF THIS OFFICE THAT IN A NEGOTIATED PROCUREMENT THE CONTRACTING OFFICER IS UNDER A DUTY TO CONDUCT THE NEGOTIATION TO THE BEST ADVANTAGE OF THE GOVERNMENT. SEE 38 COMP. GEN. 861; 40 ID. 508. HOWEVER, THE FINAL SELECTION OF A CONTRACTOR IS LARGELY A MATTER OF JUDGMENT AND AN ADMINISTRATIVE DETERMINATION OF THE MATTER SHOULD NOT BE DISTURBED IN THE ABSENCE OF BAD FAITH OR ABUSE OF DISCRETION. SEE B-149330 AND B-149344.

ACCORDINGLY, AS THE PROPOSAL BY APPLIED LASERS, INCORPORATED, WAS ADMINISTRATIVELY DETERMINED TO BE TECHNICALLY UNACCEPTABLE AND THERE IS NO EVIDENCE OF BAD FAITH OR ABUSE OF DISCRETION THIS OFFICE CONCURS WITH THE ADMINISTRATIVE DECISION THAT THE PROTEST BE REJECTED AND THE CONTRACT NOT BE DISTURBED.