B-158304, FEB. 21, 1966

B-158304, FEB. 21, 1966

TO EMERSON AND CUMING, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 6, 1966, PROTESTING AGAINST A DETERMINATION BY THE DEPARTMENT OF THE NAVY THAT A TECHNICAL PROPOSAL SUBMITTED BY YOU IN RESPONSE TO REQUEST FOR PROPOSALS (RFP) NO. 173/N75045/66, ISSUED BY THE UNITED STATES NAVAL RESEARCH LABORATORY (NRL), WASHINGTON, D.C., ON OCTOBER 21, 1965, IS TECHNICALLY UNACCEPTABLE. ADDITIONALLY, YOU PROTEST AGAINST AWARD OF A CONTRACT UNDER THE RFP TO B. F. GOODRICH COMPANY (GOODRICH), THE ONLY OTHER OFFEROR.

THE PROCUREMENT ITEM IS A RADIO FREQUENCY ANECHOIC CHAMBER TO BE DESIGNED, FABRICATED AND INSTALLED AT THE NRL IN ACCORDANCE WITH NRL PERFORMANCE SPECIFICATIONS. THE PRIMARY USE OF THE CHAMBER WILL BE THE DESIGN AND TESTING OF DIRECTIONAL AND OMNIDIRECTIONAL SATELLITE ANTENNA PATTERNS. ITS SECONDARY USE WILL BE RADIO FREQUENCY INTERFERENCE TESTING OF PROTOTYPE PAYLOADS AND THE FLIGHT HARDWARE.

PURSUANT TO A REQUEST BY NRL FOR AUTHORITY TO NEGOTIATE A FIRM FIXED- PRICE CONTRACT FOR THE ITEM, WHICH CONSTITUTES A TEST FACILITY UNDER OPERATIONAL SYSTEM DEVELOPMENT, AS DEFINED IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 4-201 (A) (5), THE ASSISTANT SECRETARY OF THE NAVY ISSUED A DETERMINATION AND FINDINGS DATED OCTOBER 4, 1965, AUTHORIZING NEGOTIATION OF THE PROCUREMENT UNDER THE AUTHORITY CONTAINED IN 10 U.S.C. 2304 (A) (11) RELATING TO CONTRACTS FOR EXPERIMENTAL, DEVELOPMENTAL OR RESEARCH WORK.

THE PERFORMANCE SPECIFICATIONS SET FORTH IN THE RFP REPRESENT THE PRODUCT OF APPROXIMATELY EIGHTEEN MONTHS SPENT BY NRL SCIENTIFIC PERSONNEL IN GATHERING DATA, TESTING SIMILAR CHAMBERS, AND FORMULATING SPECIFICATIONS GUARANTEED TO RESULT IN THE PROCUREMENT OF AN ANECHOIC CHAMBER WHICH WILL MEET NRL'S REQUIREMENTS FOR ITS SATELLITE RESEARCH PROGRAMS. IN ADDITION, THE RFP REQUIRED OFFERORS TO FURNISH WITH THEIR PROPOSALS PRELIMINARY DRAWINGS SHOWING DIMENSIONS AND ALL PERTINENT INFORMATION CONCERNING THE CHAMBER DESIGN; CERTAIN TECHNICAL INFORMATION FOR EVALUATION PURPOSES; AND INFORMATION ON ANY EXCEPTIONS OR VARIATIONS TO THE SPECIFICATIONS INCLUDING A DESCRIPTION OF ATTENDANT SYSTEM EFFECTS. OFFERORS WERE ADVISED, HOWEVER, THAT VARIATIONS OR EXCEPTIONS IF DEEMED MINOR BY NRL WOULD NOT NEGATE A PROPOSAL.

THE PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY, BUT RFP'S WERE SENT ONLY TO GOODRICH AND TO YOU, THE ONLY SOURCES KNOWN TO NRL FOR THE TYPE FACILITY DESIRED. HOWEVER, RFP PACKAGES WERE ISSUED SUBSEQUENTLY, UPON REQUEST, TO 13 OTHER CONCERNS.

ON NOVEMBER 12, 1965, THE DATE SET FOR OPENING OF PROPOSALS, ONLY YOU AND GOODRICH HAD RESPONDED TO THE RFP. YOUR PROPOSAL WAS IN THE AMOUNT OF $248,700, AND GOODRICH'S PROPOSAL WAS IN THE AMOUNT OF $415,000. THE NRL COST ESTIMATE, BASED ON INFORMATION OBTAINED FROM THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), WHICH HAS SIMILAR FACILITIES AT ITS SPACE FLIGHT CENTER IN HUNTSVILLE, ALABAMA, WAS $475,000.

FOLLOWING AN EXTENSIVE REVIEW OF BOTH PROPOSALS BY COGNIZANT NRL TECHNICAL AND SCIENTIFIC PERSONNEL, IT WAS ADMINISTRATIVELY DETERMINED THAT THE GOODRICH PROPOSAL FULFILLED ALL OF THE RFP REQUIREMENTS BUT THAT YOUR PROPOSAL WAS TECHNICALLY UNACCEPTABLE IN SEVERAL MAJOR AREAS. ACCORDINGLY, BY LETTER DATED DECEMBER 17, ISSUED PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-508, GOVERNING PRE AWARD NOTICES OF UNACCEPTABLE PROPOSALS, THE CONTRACTING OFFICER ADVISED YOU AS FOLLOWS:

"YOUR PROPOSAL, IN RESPONSE TO THIS LABORATORY'S REQUEST FOR PROPOSAL RFP173/N75045/66 FOR AN ANECHOIC CHAMBER, HAS BEEN EVALUATED AND HAS BEEN DETERMINED TO BE TECHNICALLY NONRESPONSIVE.

"THE FOLLOWING ARE SOME OF THE MAJOR AREAS INVOLVED:

"THE PROPOSAL (A) DID NOT PROVIDE FOR DOUBLE, SHEET STEEL, SHIELDING PANELS FOR THE RF SHIELDING; (B) DID NOT CONFORM TO SPACE LIMITATIONS; (C) DID NOT PROVIDE FOR INDIVIDUAL ANECHOIC BLOCK TESTING AS REQUIRED BY SECTION V, PARAGRAPHS A THROUGH F; (D) PROVIDED INADEQUATE PROVISIONS FOR ELIMINATING UNWANTED ENERGY REFLECTIONS FROM THE AZIMUTH/ELEVATION/POSITIONER. THERE ARE NUMEROUS OTHER AREAS WHICH EITHER TOOK EXCEPTION OR APPEAR TO TAKE EXCEPTION TO THE NRL SPECIFICATIONS.

"IN VIEW OF THE AFOREMENTIONED, YOU ARE ADVISED THAT YOUR PROPOSAL IS NO LONGER BEING CONSIDERED.

"THE U.S. NAVAL RESEARCH LABORATORY WISHES TO EXPRESS ITS APPRECIATION FOR YOUR INTEREST IN THIS REQUIREMENT.'

BY LETTER DATED DECEMBER 21, YOU PROTESTED THE ADVERSE DETERMINATION BY NRL. YOUR LETTER READS, IN PERTINENT PART, AS FOLLOWS:

"WITH REGARD TO THE MAJOR POINTS RAISED IN YOUR LETTER, I WILL RESPOND TO THEM IN ORDER, AS FOLLOWS:

"A) THE PURPOSE OF THE RF SHIELDING IS TO ADEQUATELY REDUCE STRAY INTERFERENCE AND OUR PROPOSAL MORE THAN SATISFIED THE TECHNICAL REQUIREMENTS. THE NEED FOR DOUBLE SHIELDING ITSELF IS NOT APPARENT, PROVIDED THE PROPOSED SHIELDING IS ADEQUATE. THE SHIELDING WHICH WE PROPOSED HAS BEEN DEMONSTRATED BY THE U.S. NAVY MISSILE CENTER, POINT MUGU, TO EXCEED ALL OF YOUR STATED REQUIREMENTS. THE SHIELDING AS PROPOSED, IS CONSIDERABLY MORE ECONOMICAL THAN DOUBLE SHEET STEEL AND THIS SAVING HAS BEEN PASSED ALONG TO YOU.

"B) OUR PROPOSAL DID CONFORM TO SPACE LIMITATIONS KNOWN AND APPRECIATED BY US. IF, HOWEVER, THE GENERAL ARRANGEMENT IS NOT PERFECTLY SATISFACTORY, IT CAN BE REDONE WITHOUT APPRECIABLE CHANGE IN COST. AFTER ALL, THIS IS A PROPOSAL DRAWING AND NOT A FINISHED ENGINEERING SHOP DRAWING. WE WILL COMPLETELY MEET ALL SPACE LIMITATIONS.

"C) WE WERE VERY SPECIFIC IN DETAILING OUR METHOD OF BLOCK TESTING OF THE ANECHOIC MATERIAL AND HAVE SINCE CARRIED OUT A PROGRAM OF CONSIDERABLE MAGNITUDE TO DEMONSTRATE THE ACCURATENESS OF OUR TECHNICAL POSITION. THIS TESTING, CARRIED OUT AT DOUGLAS AIRCRAFT AT SANTA MONICA, USING IDENTICAL ECCOSORB MATERIAL PROPOSED BY US, SHOWED THAT THIS ECCOSORB MATERIAL MET AND EXCEEDED EVERY TECHNICAL REQUIREMENT. THIS INFORMATION HAS BEEN PASSED ALONG TO YOU IN DETAIL, BOTH AS TABULATED DATA AND PHOTOGRAPHS OF THE TESTING. TESTING OF THE ANECHOIC MATERIAL MUST HAVE THE PURPOSE OF ADEQUATELY INFORMING THE NAVY AS TO THE QUALITY OF THE MATERIAL BEING PURCHASED. OUR PROPOSED METHOD COMPLETELY FULFILLS THE SPIRIT OF THIS REQUIREMENT AND CONTAINS NO TECHNICAL ERROR. AS A METHOD TO ACCOMPLISH THE DESIRED END, IT IS THE BEST AND MOST ECONOMICAL WAY. THIS COST SAVING HAS AGAIN BEEN PASSED ALONG TO YOU IN OUR PROPOSAL. THE METHOD REQUIRED BY THE EXACT WORDING IN YOUR RFP PROVIDES NO MORE INFORMATION, PROVIDES NO BETTER INFORMATION, AND COMPLETELY RESTRICTS A RESPONSIVE PROPOSAL TO THE B. F. GOODRICH COMPANY, THE SOLE POSSESSOR OF SUCH A WAVEGUIDE AS YOUR TEST METHOD REQUIRES.

"D) WE PROPOSE TO SUPPLY ENTIRELY ADEQUATE PROVISIONS FOR ELIMINATING ALL UNWANTED REFLECTIONS FROM THE AZIMUTH/ELEVATION/POSITIONER. THE EXACT DETAILS WILL BE PROVIDED IN OUR ENGINEERING DRAWINGS AND THE PROOF WILL BE HAD WITH THE TESTING OF THE CHAMBER ITSELF. WE WERE VERY SPECIFIC IN TAKING NO EXCEPTION TO THE PERFORMANCE REQUIREMENT WHATSOEVER, AS CALLED OUT BY YOUR RFP OF REFERENCE.

"I HAVE, FOR THE MOMENT, COMPLETELY ANSWERED ALL ELEMENTS OF REJECTION RAISED BY YOUR LETTER AND REQUEST NOW THAT YOU ALLOW US AUDIENCE WITH YOU AND YOUR TECHNICAL PEOPLE TO FULLY DISCUSS THESE AND ANY OTHER AREAS IN OUR PROPOSAL NOT FULLY UNDERSTOOD BY YOU. WE ARE CONVINCED THAT OUR TECHNICAL APPROACH AS PRESENTED, IS ABSOLUTELY SOUND AND AT THE SAME TIME THE VERY LOWEST COST CONSISTENT WITH STATE-OF-THE ART PERFORMANCE SUCH AS YOU REQUIRE. WE FEEL THAT YOUR OFF-HAND REJECTION OF OUR PROPOSAL AS NON- RESPONSIVE IS TOTALLY UNFAIR AND MUST BE DUE TO A LACK OF UNDERSTANDING OF THE RESULTS WHICH WILL BE OBTAINED IF OUR TECHNIQUES ARE UTILIZED. THEREFORE, REPEAT OUR REQUEST FOR AN AUDIENCE TO DISCUSS THESE MATTERS.'

ON JANUARY 4, 1966, NRL ACCORDED SEVERAL OF YOUR REPRESENTATIVES A CONFERENCE WITH NRL TECHNICAL AND PROCUREMENT OFFICIALS. A RECORD OF THE CONFERENCE INDICATES THAT YOU INFORMED NRL THAT YOU KNOWINGLY TOOK EXCEPTION TO THE GOVERNMENT'S SPECIFICATIONS; THAT, IN YOUR OPINION, YOUR PROPOSAL WOULD MEET THE MINIMUM PERFORMANCE SPECIFICATIONS AND WOULD SAVE THE GOVERNMENT MONEY; AND THAT YOU CONSIDER THE WORDING IN THE RFP PERTAINING TO CONTROL AREAS TO BE AMBIGUOUS AND THE REQUIREMENT FOR WAVEGUIDE TESTING OF ANECHOIC MATERIAL TO BE RESTRICTIVE. IT IS FURTHER INDICATED, HOWEVER, THAT YOU STATED THAT AFTER OBTAINING A QUOTATION OF$22,000 ON A WAVEGUIDE, YOU DECIDED IT WAS NOT FEASIBLE TO PURCHASE ONE FOR THIS PROCUREMENT. IT IS ALSO REPORTED THAT NRL ADVISED YOU THAT THE QUESTION OF RESTRICTIVENESS SHOULD HAVE BEEN RAISED PRIOR TO THE CLOSING DATE FOR SUBMISSION OF PROPOSALS.

IN YOUR LETTER OF JANUARY 6 TO OUR OFFICE, YOU CONTEND THAT AWARD TO ANY OTHER FIRM WOULD BE IMPROPER AND THAT IF THE RFP REQUIREMENTS ARE TO BE MET, THE PROCUREMENT SHOULD BE ADVERTISED OR MADE THE SUBJECT OF A NEW RFP. IN SUPPORT OF YOUR POSITION, YOU CONTEND THAT YOUR PRICE IS LOW; THAT THE FACILITY YOU PROPOSE TO FURNISH MEETS NRL PERFORMANCE SPECIFICATIONS IN EVERY RESPECT; THAT YOU ARE A GENERALLY RECOGNIZED LEADER IN THE ANECHOIC CHAMBER FIELD; AND THAT THE DETAILED TECHNICAL INFORMATION FURNISHED BY YOU MEETS EVERY REASONABLE REQUIREMENT OF THE SPECIFICATIONS.

IT IS THE POSITION OF NRL THAT YOUR PROPOSAL, FOR THE REASONS HEREAFTER DISCUSSED, IS NOT ACCEPTABLE, THE EXCEPTIONS TAKEN BY YOU TO THE SPECIFICATIONS NOT BEING MINOR, IN THE OPINION OF NRL TECHNICAL PERSONNEL. PENDING OUR DECISION ON YOUR PROTEST, HOWEVER, NRL HAS WITHHELD AWARD UNDER THE RFP.

FOLLOWING IS A SUMMARY OF YOUR CONTENTIONS REGARDING VARIOUS AREAS IN WHICH NRL CONSIDERS YOUR PROPOSAL SERIOUSLY DEFICIENT AND OF NRL'S POSITION ON SUCH ISSUES:

1. DOUBLE SHIELDING REQUIREMENT

YOU CONTEND THAT THE USE OF SINGLE SHIELDING, AS OFFERED BY YOU, IS A MINOR DEVIATION PERMISSIBLE UNDER THE RFP LANGUAGE RELATING TO MINOR EXCEPTIONS TO, OR VARIATIONS FROM, THE SPECIFICATIONS AND THAT YOUR PROPOSED CONSTRUCTION MEETS EVERY PERFORMANCE REQUIREMENT.

NRL POINTS OUT THAT THE LITERATURE FURNISHED WITH YOUR PROPOSAL ON YOUR ECCOSHIELD OS CONSTRUCTION PROVIDES ATTENUATION PROPERTIES WHICH DO NOT MEET THE RFP SPECIFICATIONS EQUIREMENTS; THAT THE SINGLE SHIELD STRUCTURE WILL NOT MEET THE REQUIREMENTS OF DOUBLE SHIELDING; AND THAT IN YOUR PROPOSAL PLYWOOD IS EXPOSED ON ONE SIDE TO THE ATMOSPHERE AND CONSEQUENTLY TO VARYING HUMIDITY CONDITIONS, A FACTOR WHICH PROVIDES THE POTENTIAL OF WARPING AND RESULTANT LOSS OF SHIELDING INTEGRITY. IN ADDITION, NRL STATES THAT ANOTHER REASON FOR THE DOUBLE SHIELDING IS FIRE PROTECTION, A REQUIREMENT OF WHICH THE CHESAPEAKE DIVISION, BUREAU OF YARDS AND DOCKS, DEPARTMENT OF THE NAVY, TOOK COGNIZANCE IN A REPORT RENDERED AT THE REQUEST OF NRL, BEFORE THE ISSUANCE OF THE RFP, ON THE FIRE HAZARD POTENTIAL OF THE PROPOSED CHAMBER. ACCORDINGLY, NRL ASSERTS THAT YOUR CLAIM THAT THE VARIATION IS MINOR IS INCONSISTENT WITH THE INHERENT CHARACTERISTICS OF, AND THE NECESSITY FOR, DOUBLE SHIELDING.

2. DIMENSIONS

SECTION 2.0, I, OF THE SPECIFICATIONS AND TECHNICAL INFORMATION, PAGE 3 OF THE RFP, READS UNDER ITS THIRD PARAGRAPH AS FOLLOWS:

"THE EXTERIOR DIMENSIONS OF THE CHAMBER SHALL NOT EXCEED 32 FT. WIDE BY 32 FT. HIGH BY 125 FT. LONG. IN ADDITION TO THE CHAMBER, THERE SHALL BE A CONTROL AREA INCLUDED WITH A MINIMUM OF 1080 SQUARE FEET OF WORK SPACE WITH AT LEAST A 9 FT. CEILING. THE AREA WILL IN ITSELF BE SPLIT INTO TWO AREAS (540 SQUARE FT. EACH). THE WORK-SPACE SHALL BE LOCATED AT THE TRANSMITTING END OF THE CHAMBER AND SHALL BE SHIELDED FROM THE CHAMBER. ACCESS TO BOTH AREAS SHALL BE VIA SINGLE DOORS WHICH MAY BE SECURED WITH A SUITABLE LOCK. THE ENTIRE EXTERIOR OF THE CHAMBER SHALL BE ENCLOSED IN A SUITABLE SHIELDED ENCLOSURE. ACCESS TO THE MODEL AREA OF THE CHAMBER SHALL BE THROUGH A SINGLE PERSONNEL DOOR OR THROUGH DOUBLE DOORS PROVIDING AN OPENING 12 FT. WIDE BY 12 FT. HIGH (BOTH ACCESSES REQUIRED).'

YOU CONTEND THAT YOUR PROPOSAL TO CONSTRUCT A CONTROL AREA SEPARATE FROM THE CHAMBER WAS BASED ON YOUR UNDERSTANDING OF THE QUOTED LANGUAGE AS REQUIRING A CONTROL AREA IN ADDITION TO THE CHAMBER AND THAT IF NRL INTENDED THAT THE CONTROL AREA BE INCLUDED IN THE CHAMBER, THERE WAS AN EDITORIAL ERROR. ACCORDINGLY, YOU STATE, SINCE YOU WERE RESPONSIVE TO THE RFP AS WRITTEN, ANY DEVIATION WOULD BE ON THE PART OF GOODRICH, WHOSE PROPOSAL SHOWS AN OVERALL CHAMBER WHICH INCLUDES THREE AREAS, ANECHOIC, SHIELDING AND INSTRUMENTATION, AND IF YOUR PROPOSAL IS TO BE REJECTED, GOODRICH'S PROPOSAL LIKEWISE MUST BE REJECTED.

NRL MAKES THE FOLLOWING COMMENTS ON YOUR POSITION:

"THE NRL SPECIFICATIONS STIPULATED THAT THE CONTROL AREA BE INCLUDED WITHIN THE OVERALL DIMENSIONS OF THE CHAMBER ITSELF. THE FACT THAT GOODRICH UNDERSTOOD THE REQUIREMENT AND REFLECTED IT IN ITS PROPOSAL ALLUDES THAT THE WORDING WAS CLEAR AND CONCISE. HAD E AND C QUESTIONED THIS REQUIREMENT, IT COULD HAVE OBTAINED CLARIFICATION PRIOR TO THE RFP CLOSING DATE BY CONTACTING L.' 3. ANECHOIC MATERIAL TESTING REQUIREMENTS

THE RFP SPECIFIED THAT TESTING OF THE ANECHOIC MATERIAL SHOULD BE PERFORMED BY THE WAVEGUIDE METHOD IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN UNIVERSITY OF MICHIGAN LABORATORY REPORT NO. 5391-1-F, ENTITLED "A STUDY OF VHF ABSORBERS AND ANECHOIC ROOMS.' HOWEVER, YOU PROPOSE TO USE THE "FREE SPACE" METHOD, WHICH IS ALSO DESCRIBED IN THE UNIVERSITY REPORT. YOU CONTEND THAT THE DEVIATION IS MINOR AND THAT THE REQUIREMENT FOR USE OF A WAVEGUIDE IS RESTRICTIVE AND THEREFORE IN VIOLATION OF ASPR 1 -1201 (A), SINCE IT WOULD BE IMPRACTICAL FOR A PROSPECTIVE CONTRACTOR TO EFFECT PROCUREMENT OF A WAVEGUIDE, FOR WHICH THE LEAD TIME IS 8 TO 10 WEEKS, IN TIME TO MEET THE RFP REQUIREMENT FOR COMPLETION OF PRE-AWARD TESTS WITHIN 7 DAYS AFTER REQUEST BY NRL. YOU FURTHER CONTEND THAT EVEN THOUGH THE REQUIREMENT WAS APPARENTLY "TAILORED" TO GOODRICH'S WAVEGUIDE, IT APPEARS THAT EVEN GOODRICH COULD NOT MEET THE RFP 7-DAY REQUIREMENT BECAUSE OF THE NEED TO ADAPT ITS PRESENT WAVEGUIDE TO THE RFP PERFORMANCE REQUIREMENTS, AND, THEREFORE, GOODRICH'S PROPOSAL SHOULD BE REJECTED, ALSO.

NRL STATES THAT THE WAVEGUIDE METHOD IS THE ONLY DEMONSTRATED METHOD OF TESTING SMALL QUANTITIES OF ANECHOIC MATERIAL AT THE LOW FREQUENCIES WHICH WILL MEET NRL'S REQUIREMENTS. SUCH DETERMINATION WAS BASED ON EXTENSIVE TESTING OF ANECHOIC MATERIAL, DURING AUGUST 1965, BY NRL PERSONNEL, USING BOTH THE WAVEGUIDE AND FREE SPACE METHODS, THE RESULTS OF WHICH NRL BELIEVES CONCLUSIVELY ESTABLISHED THAT THE WAVEGUIDE PROCEDURE IS THE ONLY ACCURATE TESTING METHOD. ALSO, NRL STATES THAT YOUR APPROACH OF EXTRAPOLATION OF ABSORBER COEFFICIENT OF REFLECTION IS INACCURATE AND UNRELIABLE, AND THAT ITS TESTS FURTHER UNDERLINED THE FACT THAT THE ONLY WAY TO DETERMINE AN ABSORBER'S EFFECTIVENESS AT ANY GIVEN FREQUENCY IS TO MEASURE IT.

REGARDING THE ALLEGED RESTRICTIVENESS OF THE WAVEGUIDE TESTING REQUIREMENT, NRL STATES THAT RELIABLE WAVEGUIDES ARE AVAILABLE FROM REPUTABLE MANUFACTURERS; THAT YOU COULD HAVE INCLUDED SUCH TESTING METHOD IN YOUR PROPOSAL HAD YOU DECIDED TO ACQUIRE A WAVEGUIDE; AND THAT WHILE THE WAVEGUIDE TESTS WERE REQUIRED TO BE PERFORMED PRIOR TO AWARD OF A CONTRACT, THERE IS NO BASIS FOR THE ASSUMPTION THAT AN OFFEROR HAD TO HAVE A WAVEGUIDE AT THE TIME OF SUBMISSION OF ITS PROPOSAL.

4. A/E POSITIONER CONCEPT

THE RFP REQUIRES THAT THE A/E POSITIONER (AZIMUTH/ELEVATION POSITIONER) SHALL BE MOUNTED IN SUCH A WAY THAT IT PROVIDES A MINIMUM OF REFLECTIONS IN THE CHAMBER.

YOU STATE THAT YOU TOOK NO EXCEPTION TO THE SPECIFICATIONS IN THIS RESPECT. HOWEVER, NRL STATES THAT YOU HAVE NOT SUBMITTED ALL NECESSARY INFORMATION REQUIRED BY THE RFP (PAGES 21 AND 22) REGARDING YOUR APPROACH TO SOLVING THE PROBLEMS ASSOCIATED WITH THE A/E POSITIONER, THE INHERENT PROBLEMS BEING WELL KNOWN TO BOTH MANUFACTURERS AND USERS OF SHIELDED ENCLOSURES AND ANECHOIC CHAMBERS. MOREOVER, NRL ASSERTS THAT THE INFORMATION AND DRAWINGS FURNISHED BY YOU SHOWING YOUR PROPOSED METHOD OF MOUNTING THE POSITIONER DO NOT PERMIT EFFECTIVE PROTECTION OF THE POSITIONER. WHILE THE RFP SUGGESTED A POSSIBLE MEANS OF MOUNTING THE POSITIONER, WHICH YOU ADOPTED, NRL REPORTS THAT IT DID NOT PROPOSE SUCH MEANS AS A PREFERRED SOLUTION BUT LEFT TO THE OFFERORS THEIR OWN SOLUTION OF THE PROBLEM OF MEETING THE REQUIREMENT AND THE PROVISION OF A MINIMUM OF UNWANTED REFLECTIONS.

5. OTHER AREAS OF UNACCEPTABILITY

FOLLOWING IS A LIST OF THE OTHER AREAS IN YOUR PROPOSAL WHICH NRL FOUND TO BE UNACCEPTABLE:

A. ABSENCE OF INFORMATION CONCERNING THE DESIGN OF THE SUPERSTRUCTURE OTHER THAN THE PRELIMINARY DRAWING SUBMITTED WITH YOUR PROPOSAL.

B. NO MENTION OR ELABORATION OF ACTUAL WORKING FLOOR SURFACE. (SEE REQUIREMENT IN SECTION V.D. OF THE SPECIFICATIONS FOR PERFORMANCE OF TESTS OF FLAT SURFACE FLOOR MATERIAL AFTER INSTALLATION.)

C. CONSTRUCTION PROPOSED FOR SEALING OF SHIELDED DOORS WILL NOT PROVIDE WIPING ACTION NECESSARY TO REMOVE DIRT AND INSURE GOOD ELECTRICAL CONNECTION EACH TIME DOOR IS OPENED AND CLOSED.

D. ABSENCE OF PROVISIONS FOR PROTECTION OF REFLECTIVE SURFACES FROM RADIO FREQUENCY ENERGY WITHIN CHAMBER AND PROPER PROVISIONS FOR AIR INLETS AND LIGHTS AS CONCERN UNWANTED REFLECTIONS.

REGARDING YOUR ASSERTIONS THAT THE DEVIATIONS IN YOUR PROPOSAL WOULD SAVE THE GOVERNMENT MONEY, NRL MAKES THE FOLLOWING STATEMENTS:

"THERE IS NO VALID BASIS FOR COMPARISON OF COST OF THE PROPOSALS RECEIVED, AS THE E AND C PROPOSAL WAS NOT MADE IN ACCORDANCE WITH THE SPECIFICATIONS SET FORTH IN THE RFP, BUT WAS BASED ON ENTIRELY DIFFERENT CONSTRUCTION AND TESTING METHODS. THE REQUIRED DOUBLE SHIELDING AND WAVEGUIDE TESTING METHOD WOULD ADD CONSIDERABLY TO E AND C'S COSTS. NRL, WHILE CONSCIOUS OF COSTS, WOULD NOT RECEIVE COMMENSURATE VALUE THROUGH A RELAXATION OF SPECIFICATIONS WHICH WOULD RESULT IN A DEGRADATION OF REQUIRED CHAMBER PERFORMANCE.'

"E AND C HAS PREDICATED THE ACCEPTABILITY OF ITS PROPOSAL ON MONETARY SAVINGS ONLY, AND IN EFFECT HAS SUBMITTED A PROPOSAL WHICH REFLECTS ITS FAILURE TO RECOGNIZE THE IMPORTANCE OF THE NRL REQUIREMENTS. HAD THESE REQUIREMENTS BEEN PROVIDED FOR BY E AND C TO THE EXTENT STIPULATED IN THE RFP, THE DOLLAR DIFFERENCE IN THE BID QUOTATION BETWEEN E AND C AND GOODRICH WOULD PROBABLY HAVE BEEN MARGINAL. THE SUCCESS OR FAILURE OF SATELLITE RESEARCH PROJECTS, WHICH ARE FAR MORE COSTLY THAN THAT OF THE PROCUREMENT BEING PROTESTED, IS DEPENDENT UPON THE RELIABILITY OF ALL THE FACTORS UTILIZED IN THE CONSTRUCTION AND TESTING OF THESE SATELLITES. GOODRICH INDICATED A COMPLETE UNDERSTANDING OF THE REQUIREMENTS OF THE RFP AND HAS SUBMITTED AN ACCEPTABLE PROPOSAL WHICH WILL RESULT IN NRL HAVING A RELIABLE ANECHOIC CHAMBER.'

ACCORDINGLY, AND SINCE THE PROCUREMENT IS OF AN URGENT NATURE, NRL HAS REQUESTED THAT YOUR PROTEST BE DENIED AND THAT AN AWARD TO GOODRICH BE AUTHORIZED.

WHEN THE AUTHORITY TO NEGOTIATE A CONTRACT APPLIES AND IS USED, THE TERMS AND CONDITIONS UPON WHICH THE PROPOSALS ARE REQUESTED AND EVALUATED ARE MATTERS PRIMARILY FOR DETERMINATION BY THE PROCURING AGENCY, AND ADHERENCE TO THE RULES OF FORMALLY ADVERTISED COMPETITIVE BIDDING, SUCH AS THAT WHICH REQUIRES AWARD TO THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER, IS NOT NECESSARILY REQUIRED. UNDER SUCH AUTHORITY, THE CONTRACTING AGENCY IS PERMITTED A BROAD RANGE OF DISCRETION AND LEGALLY MAY TAKE INTO CONSIDERATION NOT ONLY PRICE BUT ALL FACTORS AFFECTING THE NEEDS AND INTERESTS OF THE GOVERNMENT. SEE, IN SUCH CONNECTION, PARAGRAPH 7 (D) OF THE RFP'S TERMS AND CONDITIONS WHICH SPECIFICALLY RESERVES TO THE GOVERNMENT THE RIGHT TO ACCEPT OTHER THAN THE LOWEST PROPOSAL AND TO REJECT ANY OR ALL PROPOSALS. FURTHER, THIS OFFICE HAS NEITHER A SCIENTIFIC NOR ENGINEERING STAFF AND WHERE, AS IN THIS CASE, THE PROCUREMENT INVOLVES EQUIPMENT OF A HIGHLY SPECIALIZED SCIENTIFIC NATURE ON WHICH THERE IS A DIFFERENCE OF EXPERT TECHNICAL OPINION, WE WILL ACCEPT THE JUDGMENT OF THE TECHNICAL PERSONNEL OF THE PROCURING AGENCY UNLESS SUCH JUDGMENT IS SHOWN TO BE CLEARLY AND UNMISTAKABLY IN ERROR. WE SEE NO SUCH ERROR IN THE MATTERS DISCUSSED ABOVE.

CONCERNING THE RFP SPECIFICATIONS UNDER SECTION 2.0, I, AS QUOTED ABOVE, GOVERNING THE DIMENSIONS OF THE ANECHOIC CHAMBER AND THE CONTROL AREAS, WE ARE INCLINED TO AGREE WITH YOUR CONTENTION THAT THE QUOTED LANGUAGE DOES NOT PRECLUDE A SEPARATE CONTROL AREA, HOWEVER, THE SPECIFICATIONS' LACK OF CLARITY WITH RESPECT TO PLACEMENT OF THE CONTROL ROOMS MAY NOT REASONABLY BE CONSIDERED AS PROVIDING JUSTIFICATION FOR, OR CURING, THE FAILURE OF YOUR PROPOSAL TO CONFORM TO THE UNAMBIGUOUS AND CLEARLY STATED REQUIREMENTS IN OTHER MATERIAL AREAS AS SET OUT ABOVE AND BELOW.

REGARDING THE ALLEGED RESTRICTIVENESS OF THE WAVEGUIDE TESTING METHOD REQUIREMENT, AS STATED ABOVE, THE RULES OF FORMALLY ADVERTISED COMPETITIVE BIDDING ARE NOT APPLICABLE TO NEGOTIATED PROCUREMENTS, AND THE MATTER OF STATING THE TERMS AND CONDITIONS UPON WHICH PROPOSALS ARE REQUESTED IS PRIMARILY THE CONCERN OF THE PROCURING AGENCY. FURTHER, EVEN IN ADVERTISED PROCUREMENTS, IT IS WELL ESTABLISHED THAT LEGITIMATE RESTRICTIONS ON COMPETITION ARE VALID WHEN THERE IS NO REASONABLE ASSURANCE THAT THE NEEDS OF THE AGENCY WILL BE MET IN THE ABSENCE OF SUCH RESTRICTIONS. 36 COMP. GEN. 809; 42 ID. 102. IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE TO THE CONTRARY, THE EXPLANATION OFFERED BY NRL FOR THE WAVEGUIDE TEST METHOD REQUIREMENT-- THAT THE RELIABILITY OF THE TESTS IS ESSENTIAL TO THE SUCCESS OF THE COSTLY AND IMPORTANT SATELLITE RESEARCH PROJECTS AND THAT THE WAVEGUIDE TEST METHOD IS THE ONLY METHOD WHICH WILL ACCOMPLISH ALL OF THE TESTS WHICH NRL CONSIDERS NECESSARY--- APPEARS TO FULLY JUSTIFY THE REQUIREMENT IN THE RFP. MOREOVER, THE RECORD INDICATES THAT IT WAS NOT IMPOSSIBLE FOR YOU TO OBTAIN A WAVEGUIDE; THAT THE PROCURING AGENCY'S DETERMINATION TO SOLICIT COMPETITIVE PROPOSALS, RATHER THAN SOLICITING FROM GOODRICH ONLY, WAS BASED UPON ORAL ADVICE FROM REPRESENTATIVES OF YOUR COMPANY THAT YOU WERE GOING TO BUILD A SUITABLE WAVEGUIDE; AND THAT YOU SUBSEQUENTLY ELECTED NOT TO INCUR THE EXPENSE. THE CIRCUMSTANCES, THE WAVEGUIDE TEST METHOD MUST BE CONSIDERED A MATERIAL REQUIREMENT OF THE RFP, HOWEVER, WE CANNOT CONCLUDE THAT SUCH REQUIREMENT PRECLUDED YOU FROM MEETING THE NRL SPECIFICATIONS INSOFAR AS TESTING IS CONCERNED.

FROM THE FACTS AND EXPLANATIONS SET FORTH, WE FEEL THAT IT IS REASONABLY ESTABLISHED THAT THE REQUIREMENTS STATED IN THE RFP ARE NRL'S MINIMUM REQUIREMENTS THAT THE FACILITY WHICH YOU PROPOSE TO FURNISH WILL NOT MEET SUCH REQUIREMENTS, AND THAT THIS OFFICE WOULD NOT BE JUSTIFIED IN REQUIRING MAJOR DEVIATIONS FROM SUCH REQUIREMENTS. FURTHER, WHILE YOU URGE THAT THE EXCEPTIONS WHICH YOU PROPOSE TO TAKE TO SUCH REQUIREMENTS ARE MINOR AND WILL SAVE THE GOVERNMENT MONEY, NRL ASSERTS THAT THE EXCEPTIONS ARE MAJOR AND WOULD AFFECT THE SUCCESSFUL PERFORMANCE OF THE WORK, AND IT HAS SUBMITTED EXPERT TECHNICAL OPINIONS WHICH SUPPORT ITS POSITION. IN THE CIRCUMSTANCES, WE HAVE NO ALTERNATIVE BUT TO CONCUR WITH THE VIEW OF NRL THAT YOUR PROPOSAL SHOULD BE REJECTED AS TECHNICALLY UNACCEPTABLE. FURTHER, SINCE GOODRICH'S PROPOSAL HAS BEEN DETERMINED TO BE ACCEPTABLE IN ALL MATERIAL AREAS, WE SEE NO LEGAL BASIS FOR OBJECTING TO THE PROPOSED AWARD TO GOODRICH. ACCORDINGLY, YOUR PROTEST IS DENIED.