B-161613, AUG. 28, 1967

B-161613, AUG. 28, 1967

BIDS - NEGOTIATION - REJECTION JUSTIFICATION DECISION ON BEHALF OF ATKINS AND MERRILL, INC., RE REJECTION OF PROPOSAL FOR DESIGN AND CONSTRUCTION OF APOLLO SPACECRAFT DISPLAYS FOR NASA. AN OFFEROR WHO RANKED 6TH AMONG 9 OFFERORS AND WHO HAD PROPOSAL REJECTED ON 1ST STEP OF REQUIREMENTS BECAUSE OF MAJOR AND MINOR DEFICIENCIES MUST HAVE PROTEST DENIED IN ABSENCE OF EVIDENCE OF ABUSE OF ADMINISTRATIVE DISCRETION OR AUTHORITY IN CLASSIFICATION OF PROTESTANT'S PROPOSAL AS "UNACCEPTABLE" SINCE QUESTION OF WHETHER TECHNICAL PROPOSALS ARE DEFICIENT AND WHETHER DEFICIENT TECHNICAL PROPOSALS ARE SUSCEPTIBLE OF BEING MADE ACCEPTABLE ARE MATTERS REQUIRING JUDGMENT OF SCIENTIFIC OR ENGINEERING PERSONNEL.

TO GADSBY, MAGUIRE AND HANNAH:

REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 24, 1967, AND SUPPLEMENTING COMMUNICATIONS, PROTESTING ON BEHALF OF ATKINS AND MERRILL, INC., THE REJECTION (AS "UNACCEPTABLE") OF THAT FIRM'S TECHNICAL PROPOSAL WHICH WAS SUBMITTED IN RESPONSE TO STEP I OF INVITATION FOR BIDS NO. 10-1603B ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION ON MARCH 22, 1967, FOR THE DESIGN AND CONSTRUCTION OF SEVEN-FULL-SCALE APOLLO SPACECRAFT DISPLAY MODELS.

OF THE NINE PROPOSALS RECEIVED ON APRIL 28, 1967, FIVE WERE EVALUATED AS "UNACCEPTABLE," AND FOUR WERE EVALUATED AS "ACCEPTABLE," SUBJECT TO CORRECTION OF CERTAIN DEFICIENCIES, BY A COMMITTEE COMPOSED OF NASA HEADQUARTERS PERSONNEL AND A SPECIALLY SELECTED GROUP OF TECHNICAL REPRESENTATIVES EXPERIENCED IN THE DESIGN AND CONSTRUCTION OF SPACECRAFT MODELS. THE ATKINS AND MERRILL PROPOSAL RANKED SIXTH OF THE NINE RECEIVED. ATTACHMENT I, GENERAL INFORMATION, OF THE STEP I REQUEST FOR PROPOSALS PROVIDED, IN PART: "YOUR PROPOSAL IN RESPONSE TO THIS REQUEST SHOULD BE IN THE FORM OF A PRELIMINARY DESIGN SPECIFICATION AS REQUIRED IN ATTACHMENT 2. YOUR TECHNICAL PROPOSAL WILL BE EVALUATED ON THE BASIS OF THE FOLLOWING TWO FACTORS:

"1. THE ABILITY OF YOUR PRELIMINARY DESIGN SPECIFICATION TO MEET THE PERFORMANCE REQUIREMENTS OF THE GOVERNMENT'S SPECIFICATION (NASA SPECIFICATION FAE 67-3).

"2. THE ABILITY OF YOUR STRESS ANALYSIS TO PROVE THAT THE STRENGTH REQUIREMENTS OF THE GOVERNMENT'S PERFORMANCE SPECIFICATIONS (NASA SPECIFICATION FAE 67-3), CAN BE ATTAINED IN YOUR FINISHED PRODUCT. "BASED ON THE ABOVE EVALUATION, YOUR TECHNICAL PROPOSAL WILL BE RATED AS (A) ACCEPTABLE OR (B) UNACCEPTABLE. IF YOU SUBMIT A TECHNICAL PROPOSAL THAT IS UNACCEPTABLE FOR ONLY MINOR REASONS, YOU WILL BE GIVENAN OPPORTUNITY TO CORRECT IT AND THUS QUALIFY IT FOR THE ACCEPTABLE CATEGORY.' ATTACHMENT II, GENERAL INSTRUCTIONS, STATED:

* * * * * * * "YOUR TECHNICAL PROPOSAL SHOULD BE A SPECIFIC AND COMPLETE PRELIMINARY DESIGN SPECIFICATION FOR THE ITEMS TO BE PROVIDED BUT IT SHOULD NOT INCLUDE DETAIL PRODUCTION SPECIFICATIONS OR DRAWINGS. SHOULD GIVE ENOUGH INFORMATION TO SHOW DESIGN AND ENGINEERING CHARACTERISTICS, GENERAL CONSTRUCTION PLAN AND TECHNIQUES, MATERIALS, AND ANY PLANS FOR SUBCONTRACTING.

* * * * * * *"YOUR SPECIFICATION MUST COVER COMPLETELY THE SPACECRAFT MODEL, SUPPORT STAND, WALKWAY PLATFORM AND STAIRS, GRAPHIC LIGHT BOXES, AND ACCESSORIES AND MUST BE RELATED IN A PARAGRAPH BY PARAGRAPH FASHION TO THE DESIGN AND ENGINEERING REQUIREMENTS IN SECTION 3.2 OF NASA SPECIFICATION FAE 67-3. THE FOLLOWING SPECIFIC INFORMATION SHALL BE INCLUDED: "

* * * * * * * THERE FOLLOWED IN ATTACHMENT II A LISTING OF ELEVEN ITEMS DESIGNATING SPECIFIC TECHNICAL INFORMATION WHICH SHOULD BE INCLUDED IN EACH PROPOSAL. SUCH REQUIREMENTS WERE DISCUSSED IN DETAIL AT A PRE- PROPOSAL CONFERENCE HELD ON MARCH 31, 1967, WHICH WAS ATTENDED BY ATKINS AND MERRILL REPRESENTATIVES, AND CLARIFICATIONS ON POINTS RAISED WERE FURNISHED PROSPECTIVE OFFERORS BY THE CONTRACTING OFFICER'S LETTERS OF APRIL 11, 1967.

THE PROPOSALS WERE FIRST APPRAISED UNDER A POINT SCORING SYSTEM BASED ON TEN CRITERIA CORRESPONDING TO THE ELEVEN ITEMS OF TECHNICAL REQUIREMENTS SET FORTH IN ATTACHMENT II, FOR USE AS A GUIDE IN THE MORE DETAILED ANALYSIS PURSUANT TO WHICH THE PROPOSALS WERE DETERMINED TO BE ,ACCEPTABLE" OR "UNACCEPTABLE" BY THE EVALUATION COMMITTEE UNDER THE CRITERIA SPECIFIED IN ATTACHMENT I. IT IS REPORTED THAT A VERY GENERAL GUIDELINE WHICH THE CONTRACTING OFFICER GAVE THE COMMITTEE IN REVIEWING THE DEFICIENCIES OF EACH PROPOSAL TO DETERMINE WHETHER IT SHOULD BE CLASSIFIED AS "ACCEPTABLE" OR "UNACCEPTABLE" WAS THAT A PROPOSAL WOULD BE ACCEPTABLE IF IT ESSENTIALLY CONFORMED TO THE OVERALL STEP I REQUIREMENTS (NEEDING ONLY CLARIFICATION AND/OR MINOR CORRECTIONS), AND THAT A PROPOSAL WOULD BE UNACCEPTABLE IF IT WAS LACKING IN FUNDAMENTAL REQUIREMENTS, AND CORRECTIONS TANTAMOUNT TO A MAJOR PROPOSAL REVISION WOULD BE REQUIRED. AFTER EVALUATION OF THE ATKINS AND MERRILL PROPOSAL IT WAS CONCLUDED THAT SUCH PROPOSAL CONTAINED MAJOR, AS WELL AS MINOR, DEFICIENCIES IN DESIGN AND CONSTRUCTION AFFECTING THE STRUCTURAL INTEGRITY OF THE MODEL, ITS COMPONENTS AND THE MODEL SUPPORT STAND. IT IS FURTHER REPORTED THAT SUCH DEFICIENCIES, WHICH INCLUDE INFORMATION PRESENTED AS WELL AS OMITTED, LED THE TECHNICAL EVALUATION COMMITTEE TO CONCLUDE THAT THE ATKINS AND MERRILL PROPOSAL WAS NOT READILY SUSCEPTIBLE TO BEING MADE ACCEPTABLE, AND THAT MAJOR REDESIGN WAS NEEDED. THE CONTRACTING OFFICER ADVISED ATKINS AND MERRILL ON MAY 11, 1967, THAT ITS PROPOSAL WAS FOUND TO BE UNACCEPTABLE BY REASON OF MATERIAL DEFICIENCIES IN CERTAIN DESIGNATED AREAS, AND THAT REVISIONS TO THE PROPOSAL WOULD NOT BE CONSIDERED. THE REJECTION OF A STEP I PROPOSAL WITHOUT FURTHER DISCUSSION IS AUTHORIZED UNDER PARAGRAPH 2.503-1 OF THE NASA PROCUREMENT REGULATION WHEN IT IS DETERMINED THAT THE PROPOSAL IS NOT REASONABLY SUSCEPTIBLE TO BEING MADE ACCEPTABLE. PURSUANT TO YOUR CLIENT'S REQUEST OF MAY 15, 1967, ITS TECHNICAL PROPOSAL WAS ADMINISTRATIVELY RECONSIDERED AND THE CLASSIFICATION OF ,UNACCEPTABLE" WAS CONFIRMED.

IN YOUR PROTEST TO THIS OFFICE YOU PRESENTED VARIOUS CONTENTIONS CONCERNING THE EVALUATION AND REJECTION OF YOUR CLIENT'S PROPOSAL. SUCH CONTENTIONS WERE REFERRED TO NASA FOR CONSIDERATION AND COMMENT, AND UNDER DATE OF JULY 3, 1967, THAT AGENCY FURNISHED ITS REPORT ON THE PROTEST WHICH INCLUDED VERY COMPREHENSIVE AND ORDERLY STATEMENTS BY THE CONTRACTING OFFICER AND BY THE TECHNICAL OFFICE RESPONDING TO YOUR PROTEST AND EXPLAINING IN DETAIL THE TECHNICAL DEFICIENCIES IN THE ATKINS AND MERRILL PROPOSAL REQUIRING ITS REJECTION. WE ARE UNABLE TO FIND IN THE RECORD ANY BASIS FOR CONCLUDING THAT THE ADMINISTRATIVE REPORT AND STATEMENTS WERE NOT REASONABLY RESPONSIVE TO AND DISPOSITIVE OF YOUR PRINCIPAL CONTENTIONS. SINCE COPIES OF SUCH DOCUMENTS HAVE BEEN FURNISHED YOU, WE WILL NOT RESTATE THE SPECIFIC REASONS FOR REJECTION OF THE ATKINS AND MERRILL PROPOSAL HERE.

BASICALLY, YOUR PROTEST IS OF A TYPE WHICH HAS BEEN THE SUBJECT OF DECISIONS BY THIS OFFICE ON MANY OCCASIONS, IN THAT IT CONCERNS WHETHER THE DEFICIENCIES IN THE ATKINS AND MERRILL PROPOSAL WERE OF A MINOR NATURE, AND WHETHER AN OPPORTUNITY TO CORRECT THE PROPOSAL SHOULD HAVE BEEN AFFORDED YOUR CLIENT. IN SUCH MATTERS IT HAS BEEN THE CONSISTENT POSITION OF THIS OFFICE THAT QUESTIONS OF WHETHER TECHNICAL PROPOSALS ARE DEFICIENT, AND WHETHER DEFICIENT TECHNICAL PROPOSALS ARE REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE, ARE ESSENTIALLY MATTERS REQUIRING THE JUDGMENT OF SCIENTIFIC OR ENGINEERING PERSONNEL TRAINED IN THE PARTICULAR FIELD CONCERNED. OUR OFFICE MUST ORDINARILY ACCEPT THE CONSIDERED JUDGMENT OF THE PROCURING AGENCY'S SPECIALISTS AND TECHNICIANS AS TO THE ADEQUACY OF A TECHNICAL PROPOSAL, UNLESS IT IS CLEARLY SHOWN THAT THE AGENCY ACTION WAS ARBITRARY OR CAPRICIOUS OR MADE IN BAD FAITH. SEE 40 COMP. GEN. 35.

IN VIEW OF THE FOREGOING, WHICH INDICATES THAT THE ATKINS AND MERRILL PROPOSAL HAS BEEN FULLY CONSIDERED BY COMPETENT NASA SPECIALISTS ON SEVERAL OCCASIONS, AND SINCE WE FIND NO SHOWING OF ABUSE OF ADMINISTRATIVE DISCRETION OR AUTHORITY IN THE CLASSIFICATION OF THE PROPOSAL AS ,UNACCEPTABLE," YOUR PROTEST MUST BE DENIED.