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B-158865, JULY 13, 1966, 46 COMP. GEN. 34

B-158865 Jul 13, 1966
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TO INSPECT BOTH THE SECOND STEP BIDS AND THE FIRST STEP TECHNICAL PROPOSALS OF LOWER BIDDERS TO DETERMINE BIDDER RESPONSIVENESS TO THE SPECIFICATIONS WAS PROPERLY DENIED. A DIFFERENT RULE IS NOT REQUIRED FOR MATERIAL RESTRICTED BY OTHER MEANS. THE PUBLICATION OF THE NAMES OF FIRMS SUBMITTING ACCEPTABLE TECHNICAL PROPOSALS IN THE FIRST STEP OF A TWO-STEP FORMAL ADVERTISED PROCUREMENT ALTHOUGH NOT REQUIRED UNDER PARAGRAPH 1-1003.6/A) (2) OF THE ARMED SERVICES PROCUREMENT REGULATION WHEN IT IS DETERMINED BY THE CONTRACTING AGENCY THAT PUBLICATION IS NOT IN THE GOVERNMENT'S INTEREST OR SUBCONTRACTING OPPORTUNITIES DO NOT EXIST. THE CONTRACTING AGENCY WOULD HAVE INFORMED THE FIRM THAT STEP ONE OFFERORS DID NOT PROPOSE TO USE ITS EQUIPMENT.

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B-158865, JULY 13, 1966, 46 COMP. GEN. 34

BIDS - TWO-STEP PROCUREMENT - TECHNICAL PROPOSALS - DISCLOSURE. UNDER A LETTER REQUEST FOR TECHNICAL PROPOSALS (LRFTP), THE REQUEST OF A BIDDER AFTER THE OPENING OF BIDS BUT PRIOR TO AWARD, TO INSPECT BOTH THE SECOND STEP BIDS AND THE FIRST STEP TECHNICAL PROPOSALS OF LOWER BIDDERS TO DETERMINE BIDDER RESPONSIVENESS TO THE SPECIFICATIONS WAS PROPERLY DENIED, THE CONTRACTING OFFICER AT THE REQUEST OF THE LOW BIDDER OBLIGED TO SAFEGUARD TECHNICAL PROPOSALS AGAINST DISCLOSURE TO UNAUTHORIZED PERSONS, NOTWITHSTANDING NONCOMPLIANCE WITH MARKING PROCEDURES PRESCRIBED BY PARAGRAPH 3-507.1 OF THE ARMED SERVICES PROCUREMENT REGULATION, THE LRFTP NOT SPECIFYING THE MANNER IN WHICH OFFERORS SHOULD DESIGNATE CONFIDENTIAL MATERIAL OR DATA SUBMITTED WITH PROPOSALS, AND THE RESPONSIVENESS OF THE LOW PROPOSAL UNDER THE STEP TWO PROCEDURE NOT AFFECTED BY THE CONTINUED EXERCISE OF THE CONFIDENTIAL PRIVILEGES REASONABLY AFFORDED THE STEP ONE PROPOSAL, MATERIAL MARKED IN ACCORDANCE WITH PARAGRAPH 3-507.1 REMAINING CONFIDENTIAL DURING THE STEP TWO PROCESSES, A DIFFERENT RULE IS NOT REQUIRED FOR MATERIAL RESTRICTED BY OTHER MEANS. BIDS - TWO-STEP PROCUREMENT - TECHNICAL PROPOSALS - DISCLOSURE. THE PUBLICATION OF THE NAMES OF FIRMS SUBMITTING ACCEPTABLE TECHNICAL PROPOSALS IN THE FIRST STEP OF A TWO-STEP FORMAL ADVERTISED PROCUREMENT ALTHOUGH NOT REQUIRED UNDER PARAGRAPH 1-1003.6/A) (2) OF THE ARMED SERVICES PROCUREMENT REGULATION WHEN IT IS DETERMINED BY THE CONTRACTING AGENCY THAT PUBLICATION IS NOT IN THE GOVERNMENT'S INTEREST OR SUBCONTRACTING OPPORTUNITIES DO NOT EXIST, HAD A FIRM SUBMITTING A BID UNDER A LETTER REQUEST FOR TECHNICAL PROPOSALS IDENTIFIED HIS REQUEST FOR A LIST OF RESPONSIVE STEP ONE OFFERORS AS AN ATTEMPT TO OBTAIN SUBCONTRACTING PROCEDURES, THE CONTRACTING AGENCY WOULD HAVE INFORMED THE FIRM THAT STEP ONE OFFERORS DID NOT PROPOSE TO USE ITS EQUIPMENT. BIDS - TWO-STEP PROCUREMENT - TECHNICAL PROPOSALS - ALTERNATIVE PROPOSALS - EVALUATION CRITERIA. NOTWITHSTANDING A LETTER REQUEST FOR TECHNICAL PROPOSALS ON AN AUTOMATED MATERIAL HANDLING SYSTEM AUTHORIZED AND ENCOURAGED OFFERORS TO SUBMIT NEW DESIGNS AND DIFFERENT BASIC APPROACHES BUT OMITTED THE EVALUATION CRITERIA REQUIRED BY PARAGRAPH 2-503.1 OF THE ARMED SERVICES PROCUREMENT REGULATION FOR EVALUATING ANY NEW DESIGN OR DIFFERENT APPROACH SUBMITTED, THE ACCEPTANCE OF THE LOW PROPOSAL WILL NOT BE QUESTIONED, PROSPECTIVE CONTRACTORS HAVING BEEN INFORMED THAT THE ACCEPTABILITY OF PROPOSALS PRESENTING NEW DESIGNS OR DIFFERENT APPROACHES WOULD BE DEPENDENT UPON THE FULFILLMENT OF THE BASIC REQUIREMENTS OF THE SPECIFICATIONS RATHER THAN FULL COMPLIANCE WITH DETAIL; HOWEVER, FUTURE REQUESTS FOR PROPOSALS DESCRIBING AN ACCEPTABLE CONVENTIONAL TYPE SYSTEM, WITH PRESCRIBED EVALUATION CRITERIA, AND SOLICITING MULTIPLE OR ALTERNATE PROPOSALS PRESENTING NEW DESIGNS AND DIFFERENT APPROACHES SHOULD SET FORTH THE SPECIFIC CRITERIA REQUIRED BY PARAGRAPH 2-503.1 FOR THE EVALUATION OF NEW DESIGNS AND DIFFERENT APPROACHES.

TO THE COLUMBUS MCKINNON CORPORATION, JULY 13, 1966:

REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 1 AND TO YOUR LETTERS OF APRIL 19 AND JUNE 28, 1966, PROTESTING ANY AWARD OF A CONTRACT FOR AN AUTOMATED MATERIAL HANDLING SYSTEM AT HILL AIR FORCE BASE, UTAH, PURSUANT TO INVITATION FOR BIDS NO. 42-600-66-105 WHICH WAS STEP TWO IN THE TWO- STEP FORMAL ADVERTISING METHOD USED FOR THE PROPOSED PROCUREMENT.

THE STEP ONE LETTER REQUEST FOR TECHNICAL PROPOSAL (LRFTP) WAS MAILED NOVEMBER 12, 1965, FOR RETURN ON DECEMBER 10, 1965, WHICH DATE WAS EXTENDED TO DECEMBER 29, 1965. SIX PROPOSALS WERE RECEIVED IN RESPONSE TO THE LRFTP AND UPON EVALUATION FIVE THEREOF, INCLUDING THE COLUMBUS MCKINNON PROPOSAL, WERE DETERMINED TO BE WITHIN THE RANGE OF ACCEPTABLE PROPOSALS PENDING RECEIPT OF ADDITIONAL INFORMATION AND CLARIFICATION, WHICH WAS SUBSEQUENTLY ACCOMPLISHED. THE STEP TWO INVITATION FOR BIDS (IFB) WAS ISSUED ON FEBRUARY 24, TO THE FIVE FIRMS WHICH HAD SUBMITTED ACCEPTABLE PROPOSALS, FOR RETURN ON THE EXTENDED DATE OF MARCH 31, 1966. AFTER RECEIPT OF YOUR COPY OF THE IFB, YOU REQUESTED THE NAMES OF THE RESPONSIVE OFFERORS UNDER STEP ONE BUT SUCH INFORMATION WAS NOT PUBLISHED IN THE COMMERCE BUSINESS DAILY OR OTHERWISE DISCLOSED TO YOUR FIRM, OR TO ANY OTHER FIRM, PRIOR TO THE OPENING ON MARCH 31 OF THE FIVE BIDS RECEIVED IN RESPONSE TO THE STEP TWO IFB. THREE BIDS, INCLUDING THAT OF FMC CORPORATION (THE LOW BIDDER), WERE LOWER THAN THE COLUMBUS MCKINNON BID. AFTER THE PUBLIC OPENING YOU ASKED THE PROCURING ACTIVITY TO PERMIT YOU TO INSPECT BOTH THE SECOND-STEP BIDS AND THE FIRST-STEP TECHNICAL PROPOSALS OF THE THREE LOWER FIRMS PRIOR TO ANY AWARD UNDER THE IFB. YOUR REQUEST WAS DENIED BY THE CONTRACTING OFFICER ON THE BASIS THAT HE HAS A DEFINITE OBLIGATION TO SAFEGUARD TECHNICAL PROPOSALS AGAINST DISCLOSURE TO UNAUTHORIZED PERSONS AT ANY TIME PRIOR TO AWARD OF THE CONTRACT.

IN YOUR LETTER OF APRIL 19 TO THIS OFFICE YOU CITE SEVERAL SPECIFIC PORTIONS OF PARAGRAPHS 1 AND 5 OF THE LRFTP AND OF PARAGRAPHS 4.1 AND 12.2.1 OF THE SPECIFICATIONS PURSUANT TO WHICH YOU CONCLUDE THAT "AT NO TIME DID THE LANGUAGE OF THE LRFTP OR SPECIFICATION PERMIT, IMPLY OR STATE THAT DEPARTURES FROM THE SPECIFICATIONS WOULD BE TOLERATED;, YOU SAY THAT YOU STRESS SUCH POINT FOR THE REASON THAT YOU BELIEVE ONE OR MORE OF THE LOWER BIDDERS HAS MATERIALLY DEVIATED FROM THE SPECIFICATIONS. IN SUCH RESPECT YOU STATE:

IN ESSENCE, THE BASIC CONCERN OF COLUMBUS MCKINNON, IN THIS CONTEXT, WAS THAT THEY WOULD OFFER A SYSTEM WHICH, IN FACT, WOULD MEET THE SPECIFICATIONS AND THAT THE POTENTIAL COMPETITORS WOULD OFFER A SYSTEM WHICH MIGHT APPEAR CAPABLE OF MEETING THE SPECIFICATIONS, BUT WHICH, IN FACT, WOULD NOT COMPLETELY DO SO TO THE MUTUAL DISADVANTAGE OF THE GOVERNMENT AND COLUMBUS MCKINNON.

INASMUCH AS YOU WERE ADMINISTRATIVELY DENIED THE OPPORTUNITY TO INSPECT ANY PART OF THE PROPOSAL PACKAGES OF THE THREE LOWER BIDDERS, YOU ASSERT THAT "COLUMBUS MCKINNON DOES NOT KNOW WHETHER OR NOT ALL OF THE TECHNICAL DISSERTATION SUBMITTED BY ITS COMPETITORS IS PROPERLY RESTRICTED ACCORDING TO ASFR 3-507.1;, YOU ALSO CONTEND THAT ARMED SERVICES PROCUREMENT REGULATION 3-507.1 "PROVIDES THE MEANS FOR OFFERORS IN TWO-STEP FORMAL ADVERTISING PROCEDURES TO PROTECT THEIR PROPRIETARY SUBMISSIONS, AND IT IS SUBMITTED THAT ONLY THOSE SHEETS PROPERLY AND INDIVIDUALLY MARKED CAN BE CONSIDERED BEYOND THE SCRUTINY OF COMPETITORS;, IN VIEW THEREOF YOU REQUEST ACCESS TO ANY SUCH UNCLASSIFIED INFORMATION ON THE OFFERINGS OF YOUR COMPETITORS IN ORDER TO ASCERTAIN WHETHER OR NOT THE OFFERINGS ARE RESPONSIVE TO THE SPECIFICATIONS AS SET FORTH IN THE ORIGINAL LRFTP AND SUBSEQUENT SOLICITATIONS.

WE DO NOT AGREE WITH YOUR VIEW THAT UNDER TWO-STEP FORMAL ADVERTISING PROCEDURES THE MARKING OF MATERIAL PURSUANT TO ASPR 3 507.1 PROVIDES THE ONLY BASIS UPON WHICH A PROSPECTIVE CONTRACTOR MAY PROPERLY BE DENIED ACCESS TO A COMPETING FIRM'S PROPOSAL PACKAGE. IT SHOULD BE NOTED THAT ASPR 3-507.1 HAS BASIC APPLICATION TO NEGOTIATED PROCUREMENTS (ASPR 3-500) AND UNDER ASPR 3-501/B) (XXI) OFFERORS IN SUCH PROCUREMENTS ARE NORMALLY INFORMED IN THE REQUEST FOR PROPOSALS OF THE PROCEDURES PRESCRIBED IN ASPR 3-507.1 FOR RESTRICTING THE USE OF PROPOSAL DATA, WHEREAS THE SUBJECT LRFTP DID NOT SPECIFY A MANNER IN WHICH OFFERORS SHOULD DESIGNATE CONFIDENTIAL MATERIAL OR DATA SUBMITTED WITH THEIR PROPOSALS. WHILE SUBPARAGRAPH (II) OF ASPR 2 503.1/C) STATES THAT TECHNICAL PROPOSALS SUBMITTING DATA "MARKED" IN ACCORDANCE WITH 3-507.1 SHALL BE ACCEPTED AND HANDLED IN ACCORDANCE WITH THAT PARAGRAPH, WE DO NOT VIEW THAT PROVISION AS REQUIRING SUCH MARKING IN ORDER TO PERMIT THE PROTECTION OTHERWISE REQUESTED FOR MATERIAL SUBMITTED IN A STEP ONE PROPOSAL OR AS NULLIFYING THE PROSCRIPTION AGAINST DISCLOSURE OF PROPOSALS TO "UNAUTHORIZED PERSONS" CONTAINED IN THE PRECEDING SUBPARAGRAPH (I). ALTHOUGH SUBPARAGRAPH (I) DOES NOT DEFINE THE TERM "UNAUTHORIZED PERSONS" IT IS ADMINISTRATIVELY REPORTED THAT THE LOW BIDDER (FMC), WHOSE PROPOSAL IS THEREFORE FOR PRINCIPAL CONSIDERATION HERE, SPECIFICALLY REQUESTED THAT ALL DRAWINGS AND OTHER MATERIAL SUPPLIED NOT BE DISCLOSED OUTSIDE OF THE GOVERNMENT WITHOUT THE FIRM'S EXPRESS AUTHORIZATION. IT WAS WITH SUCH UNDERSTANDING THAT THE GOVERNMENT ACCEPTED FMC'S PROPOSAL FOR EVALUATION, AND IN THAT CONNECTION THE PROCURING ACTIVITY HAS REPORTED THAT IT WAS NOT FEASIBLE TO SEGREGATE THE INFORMATION IN THE TECHNICAL PROPOSAL BETWEEN PROPRIETARY AND NON- PROPRIETARY INFORMATION. UNDER SUCH CIRCUMSTANCES, WE FEEL THAT YOUR FIRM, NOT HAVING OBTAINED FMC'S AUTHORIZATION TO EXAMINE ANY PART OF ITS PROPOSAL, WAS REASONABLY REGARDED BY THE CONTRACTING OFFICER AS BEING AN "UNAUTHORIZED PERSON" WITHIN THE CONTEMPLATION OF ASPR 2-503.1/C) (I), AND WE CANNOT CONCLUDE THAT HIS DENIAL OF YOUR REQUEST, WHICH HONORED THE UNDERSTANDING BETWEEN FMC AND THE PROCURING ACTIVITY AGAINST DISCLOSURE, WAS CONTRARY TO THE PUBLIC INTEREST OR CONSTITUTED AN ABUSE OF THE DISCRETION VESTED IN THAT OFFICIAL. ACCORDINGLY, WE SEE NO VALID BASIS ON WHICH TO DISAGREE WITH THE ADMINISTRATIVE DECISION CONCERNING SUCH MATTER.

IN YOUR LETTER OF JUNE 28 YOU CONTEND THAT FMC'S REQUEST, THAT THE MATERIAL SUBMITTED WITH ITS PROPOSAL NOT BE DISCLOSED, RENDERED ITS OFFERING NONRESPONSIVE PURSUANT TO ASPR 2-404.4/A) INASMUCH AS SUCH RESTRICTION DID NOT PERMIT COMPETING BIDDERS TO EXAMINE EVEN THE "DESCRIPTIVE LITERATURE" REQUIRED TO ACCOMPANY THE PROPOSAL AND THEREBY PRECLUDES YOU FROM PROTESTING AGAINST THE AWARD ON TECHNICAL GROUNDS. SUPPORT OF SUCH CONTENTION YOU POINT OUT THAT PARAGRAPH 2 501/II) OF SECTION II (PROCUREMENT BY FORMAL ADVERTISING) OF ASPR PROVIDES THAT "BIDS SUBMITTED IN STEP TWO ARE EVALUATED AND THE AWARDS MADE IN ACCORDANCE WITH PARTS 3 AND 4 OF THIS SECTION" AND THAT PARAGRAPH 2-503.2 PROVIDES THAT "UPON COMPLETITION OF STEP ONE, A FORMALLY ADVERTISED PROCUREMENT IN ACCORDANCE WITH PARTS 2, 3 AND 4 OF THIS SECTION WILL BE CONDUCTED * * *;, SUCH PROVISIONS, YOU SAY, INDICATE THAT ALL RULES IN THOSE PARTS RELATING TO FIRM FIXED-PRICE CONTRACTS AND TO FORMAL ADVERTISING ARE FOR APPLICATION TO THE STEP TWO PROCEDURES INCLUDING THE PROPOSALS SUBMITTED UNDER STEP ONE WHICH, YOU ASSERT, FORM AN INTEGRAL PART OF THE STEP TWO BIDS AND THEREFORE THE CONTINUATION OF THE RESTRICTION AT STEP TWO AGAINST DISCLOSURE OF ANY PART OF THE FMC PROPOSAL REQUIRES REJECTION OF THAT FIRM'S BID UNDER ASPR 2-404.4/A) AS NONRESPONSIVE. WITHOUT ADDRESSING THE QUESTION OF WHETHER THE "COMPLETE ENGINEERING DATA" CALLED FOR UNDER PARAGRAPH 4/A) OF THE LRFTP IS MORE CLOSELY ALIGNED WITH THE TERM "TECHNICAL DATA" (ASPR, SECTION IX, PART 2) THAN WITH "DESCRIPTIVE LITERATURE" (ASPR 2-202.5), WE FEEL IT IS SUFFICIENT TO STATE THAT WE DO NOT AGREE THAT THE RESPONSIVENESS OF FMC'S BID SUBMITTED UNDER THE STEP TWO PROCEDURES IS AFFECTED BY THE CONTINUED EXERCISE THEREIN OF THE CONFIDENTIAL PRIVILEGES REASONABLY AFFORDED THAT COMPANY'S PROPOSAL PACKAGE UNDER STEP ONE. IT IS CLEAR THAT, NOTWITHSTANDING THE PROVISIONS OF ASPR 2-404.4/A), ANY SUCH MATERIAL WHICH HAD BEEN MARKED IN ACCORDANCE WITH ASPR 3-507.1 WOULD REMAIN CONFIDENTIAL DURING THE STEP TWO PROCESS, AND WE DO NOT PERCEIVE ANY COMPELLING REASON OR REQUIREMENT FOR A DIFFERENT RULE CONCERNING ACCEPTED STEP ONE MATERIAL WHICH THAT OFFEROR HAS RESTRICTED BY OTHER MEANS AGAINST UNAUTHORIZED DISCLOSURE.

IN CONNECTION WITH THE NONCOMPLIANCE BY THE PROCURING ACTIVITY WITH YOUR REQUEST FOR THE NAMES OF THE RESPONSIVE STEP ONE OFFERORS, WHICH INQUIRY YOU SAY WAS MADE TO PREPARE FOR SUBCONTRACTING OPPORTUNITIES, AND THE FAILURE OF SUCH NAMES TO APPEAR IN THE COMMERCE BUSINESS DAILY, ASPR 1- 1003.6/A) (2) DOES NOT REQUIRE THE PUBLICATION OF THE NAMES OF FIRMS WHICH HAVE SUBMITTED ACCEPTABLE TECHNICAL PROPOSALS IN THE FIRST STEP OF TWO- STEP FORMAL ADVERTISING WHEN IT IS DETERMINED THAT PUBLICATION IS NOT IN THE GOVERNMENT'S INTEREST OR SUBCONTRACTING OPPORTUNITIES DO NOT EXIST. THE PROCURING ACTIVITY REPORTS THAT IT WAS DETERMINED AT THE TIME THE IFB WAS ISSUED THAT IT WOULD SERVE NO PURPOSE TO PUBLICIZE THE NAMES OF THE SUCCESSFUL OFFERORS AS FAR AS SUBCONTRACTING OPPORTUNITIES WERE CONCERNED. WHILE YOUR FIRM DID REQUEST THAT A LIST OF RESPONSIVE OFFERORS TO STEP ONE BE FURNISHED, IT IS REPORTED THAT AT NO TIME WAS THIS REQUEST IDENTIFIED AS AN ATTEMPT ON YOUR PART TO OBTAIN SUBCONTRACTING OPPORTUNITIES, AND HAD IT BEEN SO IDENTIFIED YOU WOULD HAVE BEEN ADVISED THAT OTHER STEP ONE OFFERORS DID NOT PROPOSE USE OF YOUR EQUIPMENT.

CONCERNING YOUR CONTENTION THAT ANY PROPOSAL WHICH DOES NOT FULLY COMPLY WITH ALL SECTIONS OF THE SPECIFICATIONS ATTACHED TO THE LRFTP SHOULD BE REGARDED AS NONRESPONSIVE, ASPR 2-503.1 PROVIDES UNDER (A) (IV) THAT THE REQUEST FOR TECHNICAL PROPOSALS SHALL CONTAIN THE CRITERIA FOR EVALUATING THE TECHNICAL PROPOSAL, AND UNDER (D) THAT THE TECHNICAL EVALUATION OF THE PROPOSALS SHALL BE BASED UPON THE CRITERIA CONTAINED IN SUCH REQUEST. ALTHOUGH IT IS READILY APPARENT HOW SEVERAL AREAS OF THE PROPOSAL PACKAGE WHICH WERE NOT COMPLETELY CLARIFIED DURING THE BIDDER'S CONFERENCE ON NOVEMBER 22, 1965, MIGHT LEAD TO THE VIEWS EXPRESSED BY YOU, WE DO NOT AGREE THAT THE LRFTP REQUIRES THE EVALUATION OF ALL PROPOSALS BE BASED ON FULL COMPLIANCE WITH ALL DETAILS OF ALL SECTIONS OF THE SPECIFICATIONS. AS YOU POINT OUT, PARAGRAPH 5F OF THE LRFTP SETS FORTH AS A SPECIFIC CRITERION THAT TECHNICAL PROPOSALS WILL BE EVALUATED FOR FULL COMPLIANCE WITH ALL SECTIONS OF THE SPECIFICATIONS. WE BELIEVE, HOWEVER, THAT SUCH AND OTHER PROVISIONS OF A SOMEWHAT SIMILAR IMPORT CONTAINED IN THE LRFTP AND THE SPECIFICATIONS MUST BE CONSIDERED IN CONJUNCTION WITH PARAGRAPH 9 OF THE LRFTP WHICH AUTHORIZES AND ENCOURAGES OFFERORS TO SUBMIT PROPOSALS PRESENTING DIFFERENT BASIC APPROACHES TO THE AUTOMATED MATERIAL HANDLING SYSTEM DESCRIBED. PARAGRAPH 9 IS AS FOLLOWS:

IN THIS, THE FIRST STEP OF THE TWO STEP FORMALLY ADVERTISED PROCUREMENT, OFFERORS ARE AUTHORIZED AND ENCOURAGED TO SUBMIT MULTIPLE TECHNICAL PROPOSALS PRESENTING DIFFERENT BASIC APPROACHES PROVIDED EACH MEETS THE BASIC REQUIREMENTS OF THIS LETTER REQUEST FOR TECHNICAL PROPOSALS, THE SPECIFICATION AND THE DRAWINGS AND ILLUSTRATIONS. WHERE MULTIPLE TECHNICAL PROPOSALS ARE SUBMITTED, EACH SUCH PROPOSAL WILL BE EVALUATED SEPARATELY AND, IF APPROPRIATE, NOTICE OF UNACCEPTABILITY AS INDICATED IN THE PRECEDING PARAGRAPH WILL BE FURNISHED. (ITALICS SUPPLIED.)

IN CONNECTION WITH SUCH PARAGRAPH THE TRANSCRIPT OF THE BIDDER'S CONFERENCE SHOWS THE FOLLOWING QUESTIONS AND ANSWERS:

QUESTIONS BY JULES GALLO, FOOD MACHINERY CORPORATION

QUESTION: IF WE HAVE ALTERNATE APPROACHES, MUST WE SUBMIT TWO PROPOSALS?

ANSWER: YOU NEED ONLY SUBMIT ONE PROPOSAL AS LONG AS YOU MEET THE BASIC DESIGN REQUIREMENTS.

QUESTION: IF WE HAVE ALTERNATE DESIGN, DO WE HAVE TO QUALIFY UNDER PROCUREMENT REQUIREMENTS?

ANSWER: AS LONG AS YOU MEET BASIC REQUIREMENTS, YOU WILL BE OKAY.

QUESTION BY CHARLES A. LESLIE, COLUMBUS MCKINNON CORPORATION

QUESTION: ON THE OVERHEAD POWER AND FREE SYSTEM, WILL THE GOVERNMENT PROCURE ONLY THIS TYPE OF SYSTEM OR WILL ANYTHING GO? POWER AND FREE ONLY?

ANSWER: WE ARE PROCURING A POWER FREE ROUTING SYSTEM. YOUR PROPOSAL SHOULD BE BASED ON SPECIFICATIONS, AND WITHIN REASONABLE VARIATIONS, BE BASED ON THE POWER FREE CONCEPT.

QUESTIONS BY JULES GALLO, FOOD MACHINERY CORPORATION

QUESTION: WHAT ARE THE MANNING REQUIREMENTS? WILL THE BIDDER DETERMINE THESE?

ANSWER: AS YOU DESIGN YOUR SYSTEM, YOU WILL RECOMMEND WHERE MANNING IS NECESSARY.

A PREVIOUS QUESTION AND THE ANSWER CONCERNING THE FLEXIBILITY OF THE SPECIFICATIONS ARE TRANSCRIBED:

QUESTIONS BY CHARLES A. LESLIE, COLUMBUS MCKINNON CORPORATION

QUESTION: ARE WE ALLOWED TO TAKE ANY LIBERTIES WITH THESE SPECIFICATIONS? IF WE DO SOMETHING UNDESIRABLE, WHAT WILL THE AIR FORCE DO? ANSWER: THE PURPOSE OF A TWO-STEP PROPOSAL IS TO ALLOW YOU TO SUBMIT YOUR OWN IDEAS, PARTICULARLY WHERE THEY IMPROVE THE PROPOSAL AND DRAWINGS SUBMITTED TO YOU BY THE AIR FORCE. WHEN WE REVIEW THE TECHNICAL PROPOSALS, IF WE FIND EQUIPMENT THAT IS NOT DESIRABLE OR MARGINAL, WE WILL CONTACT THE CONTRACTOR AND REQUEST HIM TO FURTHER CLARIFY HIS PROPOSAL OR SUBMIT ADDITIONAL DATA TO VERIFY THAT HIS EQUIPMENT WILL INDEED FILL THE REQUIREMENTS SET FORTH IN THE SPECIFICATIONS.

WE FEEL, HOWEVER, THAT THE ANSWER TO THE FIRST QUESTION OF THE CONFERENCE WHICH WAS PRESENTED BY MR. LESLIE IS MOST SIGNIFICANT AS TO THE INTENDED NONRESTRICTIVENESS OF THE SPECIFICATIONS FOR PROPOSALS PRESENTING A SYSTEM OF A DIFFERENT DESIGN OR CONCEPT THAN THAT DESCRIBED IN THE SPECIFICATION:

QUESTION: WHY ARE FLOW CHARTS LISTED IN LETTER, REQUEST FOR TECHNICAL PROPOSAL, PAGE 2, PARAGRAPH 4E, NECESSARY AND WHY ARE OPERATING PROCEDURE SUBMITTALS REQUIRED IN VIEW OF THE FACT THAT THEY ARE SPELLED OUT IN THE SPECIFICATIONS?

ANSWER: IN THE SPECIFICATIONS WE HAVE TRIED TO SPELL OUT THE OPERATING PROCEDURES AND FLOW DESCRIPTIONS FOR THAT SYSTEM. IF YOUR TECHNICAL PROPOSAL DESCRIBES A SYSTEM ESSENTIALLY SIMILAR TO THE ONE IN THE SPECIFICATIONS, THEN THE OPERATING PROCEDURES AND FLOW CHARTS DESCRIBED IN THE SPECIFICATIONS WILL BE APPLICABLE TO YOUR PROPOSAL AND YOU NEED ONLY REFER TO THEM. SHOULD YOUR TECHNICAL PROPOSAL, HOWEVER, BE SIGNIFICANTLY DIFFERENT THAN THAT DESCRIBED IN OUR SPECIFICATIONS, YOU WILL BE REQUIRED TO SUBMIT FLOW CHARTS AND OPERATING PROCEDURES FOR THE SYSTEM YOU PROPOSE.

IT IS OUR VIEW THAT PROSPECTIVE CONTRACTORS WERE REASONABLY INFORMED BY THE PROVISIONS OF PARAGRAPH 9 OF THE LRFTP AND THE ABOVE EXPLANATIONS THAT THE ACCEPTABILITY OF THOSE SOLICITED PROPOSALS WHICH PRESENTED NEW DESIGNS OR DIFFERENT APPROACHES FOR THE SYSTEM WOULD BE DEPENDENT UPON THE FULFILLMENT OF THE BASIC REQUIREMENTS OF THE SPECIFICATIONS RATHER THAN UPON FULL COMPLIANCE WITH ALL OF THE DETAILS SPECIFIED FOR A SYSTEM OF THE DESIGN OUTLINED THEREIN. IT IS REPORTED, AND OUR INVESTIGATION CONFIRMS, THAT THE FMC PROPOSAL PRESENTS A NEW DESIGN AND BASIC APPROACH TO THE AUTOMATED MATERIAL HANDLING SYSTEM, WHICH IS DIFFERENT THAN THAT USUALLY FOLLOWED IN A CONVENTIONAL TYPE OF OVERHEAD POWER AND FREE CONVEYOR SYSTEM AS COVERED BY THE VARIOUS SECTIONS OF THE SUBJECT SPECIFICATION. IN VIEW THEREOF, SYSTEM FEATURES AND ATTENDANT HARDWARE DIFFERING IN MANY RESPECTS FROM THAT DESCRIBED IN THE SPECIFICATION PROVISIONS ARE TO BE EXPECTED IN THE FMC PROPOSAL, AND ARE PERMITTED BY THE LRFTP PROVIDED THE BASIC REQUIREMENTS OF THE PROPOSAL PACKAGE ARE MET. THE PROCURING ACTIVITY REPORTS THAT THE BASIC REQUIREMENTS FOR ITS AUTOMATED MATERIAL HANDLING SYSTEM AS INDICATED IN THE PROPOSAL PACKAGE ARE THAT (1) IT BE AN OVERHEAD CONVEYOR SYSTEM WHICH WILL SERVICE ALL OF THE BIN AREAS IN SUCH A WAY THAT THE STOCK PICKERS WILL NOT BE RESTRICTED AS THEY PICK MATERIAL FROM BINS LOCATED ON OPPOSITE SIDES OF THE CONVEYOR SYSTEM; (2) ALL PICKUP AND DELIVERY STATIONS HAVE THE NECESSARY GADGETRY TO ALLOW AUTOMATIC ROUTING OF MATERIAL TO AND FROM PICKUP STATIONS AND THE CUSTOMER ORDER ACCUMULATING REA; (3) ALL PICKUP AND DELIVERY STATIONS HAVE CAPABILITY OF ACCUMULATING TOW TRAYS LOADED OR UNLOADED WITHOUT PULSATING A PRIMARY CONVEYOR; (4) IT WILL AUTOMATICALLY ACCUMULATE AND STORE CUSTOMER ORDERS IN THE CUSTOMER HOLDING AREA; AND THAT (5) IT WILL RELEASE LOADED TOW TRAYS OVER THE ROLLER CONVEYOR (EXPRESS LINE) WITHOUT PHYSICAL HANDLING OF THE TRAYS. THE AIR FORCE REPORTS THAT THE FMC PROPOSAL (AS WELL AS EACH OF THE OTHER PROPOSALS) WAS FIRST REVIEWED BY COMPETENT TECHNICAL PERSONNEL TO SEE IF IT MET THE ABOVE BASIC REQUIREMENTS. THEREAFTER, THE FMC PROPOSAL WAS REVIEWED TO INSURE GOOD ENGINEERING DESIGN AND THAT THE SYSTEM WAS CAPABLE OF HANDLING THE MATERIAL DESCRIBED IN THE SPECIFICATIONS IN ACCORDANCE WITH THE OUTLINED OPERATIONAL SPEEDS, LOAD CAPACITIES AND THE QUANTITY OF MATERIAL THAT NEEDED TO BE ROUTED THROUGH THE SYSTEM. THE PROCURING ACTIVITY REPORTS THAT THE SYSTEM OFFERED BY FMC IS ACCEPTABLE, MEETS ALL OF THE STATED BASIC REQUIREMENTS, COMPLIES WITH OTHER SPECIFICATION REQUIREMENTS WHICH HAVE PROPER APPLICATION TO APPROPRIATE FEATURES AND CHARACTERISTICS INCORPORATED IN THAT SYSTEM, AND MUST SATISFACTORILY COMPLETE THE PERFORMANCE TEST OUTLINED IN THE SPECIFICATIONS.

AS INDICATED IN YOUR LETTER, WE ARE NOT IN A POSITION TO CONSIDER THE DETAILED TECHNICAL ASPECTS OF A PROPOSAL, AND IN SUCH CONNECTION IT IS WELL SETTLED THAT THE DETERMINATION OF THE ACCEPTABILITY OF TECHNICAL PROPOSALS IS VESTED IN THE PROCUREMENT OFFICIALS AND THEIR ENGINEERING ADVISERS WHO ARE BEST QUALIFIED TO EVALUATE THEM. IN VIEW THEREOF, AND SINCE OUR EXAMINATION OF THE FMC PROPOSAL HAS REVEALED NO BASIS FOR DISAGREEMENT WITH THE CONTRACTING AGENCY'S CONCLUSION, WE WILL NOT QUESTION THE AGENCY'S DETERMINATION THAT FMC'S TECHNICAL PROPOSAL WILL SATISFY THE AGENCY'S NEEDS.

IN VIEW OF THE FOREGOING, WE DO NOT FEEL THAT THE FACTS AND CIRCUMSTANCES PRESENT A PROPER BASIS FOR THIS OFFICE TO OBJECT TO THE ADMINISTRATIVE ACCEPTANCE OF THE FMC PROPOSAL. FURTHER, INASMUCH AS THE SYSTEM PRESENTED IN SUCH PROPOSAL DOES NOT INCORPORATE ALL OF THE NONBASIC REQUIREMENTS AND DETAILS SET FORTH IN THE SPECIFICATIONS, WHICH OMISSIONS IN OUR VIEW ARE AUTHORIZED UNDER THE LRFTP, WE PERCEIVE NO USEFUL PURPOSE THAT WOULD BE SERVED BY AN EXAMINATION BY YOUR FIRM OF THE FMC PROPOSAL PACKAGE FOR THE PURPOSE OF NOTING SUCH VARIATIONS.

WHILE YOUR PROTEST IS DENIED FOR THE REASONS OUTLINED ABOVE, WE FEEL THAT IN ANY FUTURE REQUEST FOR PROPOSALS OF THIS NATURE, WHICH DESCRIBES AN ACCEPTABLE SYSTEM OF A CONVENTIONAL TYPE, WITH PRESCRIBED EVALUATION CRITERIA THEREFOR, AND SOLICITS MULTIPLE OR ALTERNATE PROPOSALS PRESENTING NEW DESIGNS AND DIFFERENT BASIC APPROACHES, THE REQUEST SHOULD CLEARLY SET FORTH THE SPECIFIC CRITERIA, AS REQUIRED BY ASPR 2-503.1, FOR EVALUATION OF THOSE PROPOSALS WHICH MAY PRESENT NEW OR BASICALLY DIFFERENT SYSTEMS THAN THAT DESCRIBED IN THE LRFTP PACKAGE. WE ARE THEREFORE CALLING THIS MATTER TO THE ATTENTION OF THE SECRETARY OF THE AIR FORCE FOR SUCH CONSIDERATION AS HE DEEMS IS WARRANTED IN THAT AREA.

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