B-158057, MAR. 7, 1966

B-158057, MAR. 7, 1966

TO SERVO CORPORATION OF AMERICA:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST REJECTION OF YOUR PROPOSAL NO. SCA-P-3034 UNDER LETTER REQUEST FOR TECHNICAL PROPOSALS ISSUED BY THE OLMSTED AIR FORCE BASE, PENNSYLVANIA.

THE SUBJECT REQUEST FOR PROPOSALS WAS ISSUED ON JANUARY 15, 1965, AS THE FIRST STEP OF A TWO-STEP ADVERTISED PROCUREMENT AND SOLICITED TECHNICAL PROPOSALS FROM ALL KNOWN POTENTIAL SOURCES FOR VARIOUS CALIBRATION TEST SETS OF VARIOUS RANGES.

SERVO INITIALLY PROTESTED ALONG WITH TWO OTHER PROSPECTIVE BIDDERS BEFORE SUBMITTING A PROPOSAL, CONTENDING THAT THE REQUEST FOR PROPOSALS RESTRICTED COMPETITION TO ONE SOURCE. THIS PROTEST WAS ANSWERED IN A LETTER DATED MAY 4, 1965, FROM THE CONTRACTING OFFICER AND SERVO SUBSEQUENTLY SUBMITTED A PROPOSAL WHICH WAS REJECTED BY THE CONTRACTING OFFICER FOR THE REASONS STATED IN A LETTER DATED NOVEMBER 1, 1965, AS BEING "TOTALLY UNACCEPTABLE FROM AN ENGINEERING APPROACH.' STEPS WERE THEN TAKEN TO COMPLETE THE PROCUREMENT BY NEGOTIATION UNDER THE AUTHORITY OF PARAGRAPH 3-210.2/III) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), AS PRESCRIBED IN ASPR 2-503.1/G), WITH HEWLETT PACKARD COMPANY AS THAT COMPANY'S PROPOSAL WAS TECHNICALLY ACCEPTABLE AND WAS THE ONLY OTHER PROPOSAL SUBMITTED. THE NEGOTIATION WAS SUSPENDED UPON RECEIPT OF YOUR CURRENT PROTEST, SUBMITTED AFTER REJECTION OF YOUR PROPOSAL.

YOU CURRENTLY PROTEST THAT THE DEFICIENCIES IN YOUR PROPOSAL WERE OF A MINOR NATURE AND COULD HAVE BEEN RECTIFIED BY THE SUBMISSION OF ADDITIONAL INFORMATION, AND THAT REJECTION WITHOUT REQUESTING ADDITIONAL INFORMATION WAS IMPROPER.

THE RECORD SUBMITTED BY THE AIR FORCE REVEALS THAT YOUR PROPOSAL WAS TECHNICALLY EVALUATED INITIALLY BEFORE REJECTION AND AGAIN AFTER RECEIPT OF YOUR LETTER OF DECEMBER 17, 1965, WHICH LETTER WAS SUBMITTED AFTER A MEETING HELD WITH REPRESENTATIVES OF THE ADMINISTRATIVE OFFICE ON DECEMBER 8, 1965, TO ENABLE SERVO TO FULLY PRESENT ITS PROTEST. THE TECHNICAL EVALUATIONS REVEALED NUMEROUS DEFICIENCY AREAS. SINCE THE REASONS FOR REJECTION OF YOUR PROPOSAL WERE GIVEN TO YOU IN THE CONTRACTING OFFICER'S LETTER OF NOVEMBER 1, 1965, AND ALSO AT THE DECEMBER 8 MEETING, WE WILL NOT RESTATE THEM HERE. IT WAS DETERMINED, HOWEVER, BY THE EVALUATING PERSONNEL AND THE CONTRACTING OFFICER THAT WHILE SOME OR ALL OF THE DEFICIENCIES IN THE SERVO PROPOSAL COULD POSSIBLY HAVE BEEN REMOVED BY THE SUBMISSION OF ADDITIONAL INFORMATION, THE NUMBER AND COMPLEXITY OF THE CHANGES WHICH WOULD HAVE BEEN NECESSARY TO BRING THE PROPOSAL TO AN ACCEPTABLE LEVEL WOULD HAVE RESULTED IN A SUBSTANTIALLY NEW PROPOSAL, WITH NO GUARANTEE THAT THE NEW PROPOSAL WOULD BE ACCEPTABLE. IN VIEW OF THE URGENT NEED FOR THE PROCUREMENT IN QUESTION, IT WAS DETERMINED THAT THERE WAS INSUFFICIENT TIME FOR PREPARATION BY SERVO AND EVALUATION BY ENGINEERING PERSONNEL OF THE CONTRACTING AGENCY OF THE NECESSARY ADDITIONAL INFORMATION AND THAT THE SERVO PROPOSAL THEREFORE WAS UNACCEPTABLE.

ASPR 2-503.1/D) PROVIDES, IN PART, THAT "IF * * * IT IS DETERMINED AT ANY TIME THAT A TECHNICAL PROPOSAL IS NOT REASONABLY SUSCEPTIBLE TO BEING MADE ACCEPTABLE, IT SHOULD BE CLASSIFIED AS UNACCEPTABLE AND FURTHER DISCUSSION OF IT IS UNNECESSARY.' THE SOLE RESPONSIBILITY FOR DETERMINING THE ACCEPTABILITY OF A TECHNICAL PROPOSAL RESTS WITH THE CONTRACTING AGENCY. SEE 40 COMP. GEN. 35. THIS OFFICE DOES NOT HAVE THE FACILITIES TO REEVALUATE A TECHNICAL PROPOSAL OR TO INVESTIGATE AND RESOLVE TECHNICAL DISPUTES OF FACT AND THEREFORE MUST ACCEPT THE DETERMINATIONS OF THE CONTRACTING AGENCY, UNLESS IT IS SHOWN THAT THE ACTIONS OF THE CONTRACTING AGENCY WERE ARBITRARY OR CAPRICIOUS. THERE IS NO INDICATION THAT THE FAILURE OF THE CONTRACTING AGENCY TO REQUEST ADDITIONAL INFORMATION WAS ARBITRARY OR CAPRICIOUS. THE RECORD SHOWS THAT SERVO'S PROPOSAL WAS FULLY EVALUATED ON TWO DIFFERENT OCCASIONS BY COMPETENT ENGINEERING PERSONNEL AND, AS INDICATED ABOVE, WAS FOUND TO HAVE DEFICIENCIES SO NUMEROUS THAT TIME DID NOT PERMIT THEIR CORRECTION. WE THEREFORE CONCLUDE THAT THE DETERMINATION THAT SERVO'S PROPOSAL WAS NOT REASONABLY SUSCEPTIBLE TO BEING MADE ACCEPTABLE WITHIN A REASONABLE TIME WAS A VALID USE OF THE DISCRETIONARY POWER VESTED IN THE CONTRACTING AGENCY.