B-165446, DEC. 27, 1968

B-165446, DEC. 27, 1968

TO HYDROSYSTEMS, INCORPORATED:

WE REFER TO YOUR TELEGRAM OF OCTOBER 15, 1968, AND SUBSEQUENT COMMUNICATIONS, PROTESTING THE REJECTION OF YOUR FIRM'S TECHNICAL PROPOSAL SUBMITTED IN RESPONSE TO REQUEST FOR TECHNICAL PROPOSALS NO. N61339-68-R- 1001, A TWO-STEP FORMALLY ADVERTISED SOLICITATION ISSUED BY THE NAVAL TRAINING DEVICE CENTER, ORLANDO, FLORIDA, ON MAY 17, 1968, TO PROCURE NINE UHF/DF SYSTEM (MAINTENANCE) TRAINERS.

REQUESTS FOR TECHNICAL PROPOSALS WERE ISSUED TO 22 FIRMS. OF THESE, THREE FIRMS, HYDROSYSTEMS, INCORPORATED, FUTURONICS CORPORATION AND CURTISS-WRIGHT CORPORATION, ELECTRONICS DIVISION, SUBMITTED TECHNICAL PROPOSALS BY JULY 1, 1968, THE AMENDED CLOSING DATE FOR THEIR RECEIPT. AFTER TECHNICAL REVIEW, THE CONTRACTING OFFICER DETERMINED THAT TWO PROPOSALS, YOURS AND FUTURONICS CORPORATION-S, WERE NOT RESPONSIVE TO THE SPECIFICATION REQUIREMENTS AND REJECTED THEM ACCORDINGLY. WHILE AWARD ACTION HAS BEEN WITHHELD PENDING THE RESOLUTION OF THIS PROTEST, THE NAVY PROPOSES TO MAKE AWARD TO CURTISS-WRIGHT ON THE BASIS OF ITS MODIFIED TECHNICAL PROPOSAL.

YOU PROTEST THE NAVY'S DETERMINATION TO REJECT THE TRAINER PROPOSED BY HYDROSYSTEMS AS NONRESPONSIVE TO THE SOLICITATION'S TECHNICAL REQUIREMENTS. AMONG THE REASONS GIVEN IN THE NAVY REPORT TO THIS OFFICE OF NOVEMBER 22, 1968, FOR THIS DETERMINATION WAS THE FAILURE OF THE PROPOSED TRAINER TO CONFORM TO THE SPACE RESTRICTIONS SET OUT IN PARAGRAPH 3.9 OF THE SPECIFICATION ATTACHED TO THE SUBJECT REQUEST FOR TECHNICAL PROPOSALS. THIS SPECIFICATION STATED THAT BECAUSE THE TRAINING DEVICE WAS INTENDED FOR USE ON A WORKBENCH OF STATED LIMITED DIMENSIONS, THE OVERALL DIMENSIONS OF THE PROPOSED TRAINING DEVICE "SHALL NOT EXCEED 30 INCHES (LENGTH) BY 18 INCHES (DEPTH) BY 18 INCHES (HEIGHT)".

ON PAGE 1-36 OF VOLUME I OF ITS PROPOSAL, HYDROSYSTEMS STATED: "THE OVER- ALL HEIGHT OF THE RACK/CABINET, INCLUDING THE CASTERS, WILL BE LESS THAN 60 INCHES. IT WILL OCCUPY A BASE AREA OF 22 BY 22 INCHES.'

THE CONTRACTING OFFICER CONCLUDED THAT THIS OFFER OF AN INSTRUMENT CABINET "LESS THAN 60 NCHES" HIGH DID NOT CONFORM TO THE HEIGHT LIMITATION OF 18 INCHES STATED IN THE SPECIFICATIONS. HE ACCORDINGLY DETERMINED THAT HYDROSYSTEMS' PROPOSAL WAS NOT RESPONSIVE TO A MATERIAL ASPECT OF THE SPECIFICATION REQUIREMENTS AND, FOR THIS AND OTHER REASONS, HE REJECTED YOUR PROPOSAL.

YOU CONTEND THAT YOUR PROPOSAL'S ASSERTION THAT HYDROSYSTEMS' TRAINER WOULD HAVE AN OVERALL HEIGHT OF LESS THAN 60 INCHES "IN ITSELF WAS NOT A DEVIATION". BY THIS, WE PRESUME THAT YOU MEAN TO SAY THAT LESS THAN 60 INCHES INCLUDES ALL LESSER HEIGHTS, INCLUDING THE REQUIRED 18-INCH MAXIMUM HEIGHT. AS AN INDEPENDENT QUESTION OF THE LOGIC PERMITTED BY HYDROSYSTEMS' CHOICE OF THE WORDS "LESS THAN 60 INCHES" , THIS INTERPRETATION IS THEORETICALLY POSSIBLE.

HOWEVER, AS A PRACTICAL MATTER, WE BELIEVE THAT YOUR SUGGESTION IS UNTENABLE. THE WORDS YOU CHOSE MUST BE INTERPRETED WITHIN THE CONTEXT OF A TECHNICAL PROPOSAL SUBMITTED IN RESPONSE TO A SOLICITATION CONTAINING STRICT DIMENSIONAL LIMITATIONS. IN THIS SITUATION, WE BELIEVE THAT THE WORDS "LESS THAN 60 INCHES" MUST REASONABLY BE READ AS DESCRIBING A MACHINE WHOSE HEIGHT WOULD BE IN THE APPROXIMATE RANGE OF 60 INCHES. WHILE WE CANNOT SAY WITH PRECISION WHAT PERMISSIBLE VARIATION IN HEIGHT YOUR WORDS EXPRESS, WE BELIEVE THAT A VARIATION IN THE NEIGHBORHOOD OF 5 INCHES OR EVEN 10 INCHES WOULD BE REASONABLE. IN NO EVENT WOULD WE ACCEPT THE PROPOSITION THAT THE WORDS IN QUESTION SHOULD BE CONSTRUED AS PROPOSING A TRAINER 18 INCHES HIGH, OR LESS.

WE THEREFORE MUST CONCLUDE THAT YOUR PROPOSAL DID NOT CONFORM TO THE HEIGHT RESTRICTIONS SET OUT IN PARAGRAPH 3.9 OF THE SPECIFICATIONS. AND BECAUSE THE EVALUATION CRITERIA INCLUDED WITH THE SOLICITATION STATED THAT "COMPACTNESS" WAS ONE OF THE FACTORS WHICH WOULD BE CONSIDERED IN THE EVALUATION OF PROPOSALS, THE CONTRACTING OFFICER PROPERLY REJECTED HYDROSYSTEMS' OFFER AS NONRESPONSIVE WHEN HE DETERMINED THAT IT DID NOT CONFORM TO THE SPACE REQUIREMENTS OF PARAGRAPH 3.9.

IN SUPPORT OF THIS CONCLUSION, THE CONTRACTING OFFICER POINTS TO CERTAIN ILLUSTRATIONS INCLUDED WITH HYDROSYSTEMS' TECHNICAL PROPOSAL, FIGURES 1- 2E.1 AND 1-2E.2, WHICH DRAWINGS IN HIS OPINION, DEPICT A FLOOR MOUNTED TRAINER APPROXIMATELY 60 INCHES HIGH STANDING ADJACENT TO A WORKBENCH.

YOU DISAGREE WITH THIS CONCLUSION REGARDING THE SIGNIFICANCE OF THESE DRAWINGS, CONTENDING INSTEAD THAT THEY ILLUSTRATE A TABLE MOUNTED MACHINE. YOU ARGUE THAT THE DRAWINGS ARE UNSCALED AND THAT BECAUSE THE HORIZONTAL LINE SHOWN UNDERNEATH THE TRAINER AND WORKBENCH IS NOT CONTINUOUS THE DRAWINGS SHOULD BE INTERPRETED AS DEPICTING A FLOOR MOUNTED WORKBENCH ON ONE SIDE OF THE PAGE AND A WORKBENCH MOUNTED TRAINER ON THE OTHER SIDE.

WE BELIEVE THAT THIS CONTENTION, WHEN CONSIDERED WITH YOUR FIRM'S STATEMENT THAT ITS PROPOSED TRAINER WOULD BE LESS THAN 60 INCHES HIGH, IS TOTALLY WITHOUT SUPPORT. ACCORDINGLY, WE ACCEPT THE CONTRACTING OFFICER'S DETERMINATION WITH RESPECT TO THE SIGNIFICANCE OF THE DRAWINGS IN QUESTION.

YOUR PROPOSAL APPEARS TO OFFER A FLOOR MOUNTED CABINET ON A DOLLY WITH REMOVAL COMPONENTS WHICH CAN BE PLACED ON A WORKBENCH. THE SPECIFICATION CALLED FOR A BENCH MOUNTED CABINET WITH REMOVAL COMPONENTS. WHILE HYDROSYSTEMS' PROPOSED TRAINER CONFORMS TO THE SPECIFICATIONS TO THE EXTENT THAT ITS COMPONENTS ARE CAPABLE OF BEING PLACED ON A BENCH OF LIMITED DIMENSIONS, THIS PROCEDURE IS MATERIALLY DIFFERENT FROM THAT CALLED FOR IN THE SPECIFICATIONS, IN WHICH THE ENTIRE UNIT IS COMPACTLY DESIGNED FOR A BENCH OF LIMITED DIMENSIONS.

IT IS TRUE THAT BIDDERS ARE PERMITTED TO CURE MINOR DEFICIENCIES IN THEIR TECHNICAL PROPOSALS IN TWO-STEP ADVERTISED PROCUREMENTS. AND, IT IS POSSIBLE THAT HYDROSYSTEMS COULD REDESIGN ITS TRAINER TO SHRINK IT FROM THE 60 BY 22 BY 22 INCHES OVERALL DIMENSIONS PROPOSED TO THE 18 BY 30 BY 18 INCHES SPACE STIPULATED IN THE SPECIFICATIONS. HOWEVER, THIS WOULD REQUIRE A SIZE REDUCTION OF APPROXIMATELY TWO-THIRDS. WE BELIEVE IT REASONABLE TO ASSUME THAT SUCH A DRASTIC CHANGE IN THE OVERALL DIMENSIONS MIGHT WELL REQUIRE A COMPLETE ENGINEERING REWORK OF THE DESIGN OF THE TRAINER AND ITS COMPONENTS. ON THIS BASIS ALONE, THE CONTRACTING OFFICER HAD AN ADEQUATE REASON FOR HIS DETERMINATION THAT HYDROSYSTEMS' TECHNICAL PROPOSAL WAS NOT WITHIN THE ACCEPTABLE RANGE OF THE SPECIFICATION REQUIREMENTS. AND BECAUSE A PROPOSAL WHICH FAILS TO SATISFY A MATERIAL ASPECT OF THE SPECIFICATIONS IS NONRESPONSIVE FOR THAT REASON ALONE, WE NEED NOT CONSIDER FURTHER THE MERITS OF THE OTHER GROUNDS ADVANCED BY THE CONTRACTING OFFICER FOR THE REJECTION OF HYDROSYSTEMS' PROPOSAL.

WE NOTE THAT YOU ALLEGE THAT NOTE (2) ON PAGE 9 OF THE TECHNICAL PROPOSAL REQUIREMENTS, WHICH PROVIDES IN PART THAT OFFERORS ARE "ENCOURAGED TO PROPOSE THE USE OF UNITS OR ASSEMBLIES OF OPERATIONAL EQUIPMENTS, OR SUBDIVISION THEREOF" , LED YOUR FIRM TO PROPOSE A TRAINER COMPOSED PRIMARILY OF UNITS FROM OPERATIONAL EQUIPMENT. YOU CONTEND THAT BECAUSE THIS NOTE INDUCED OFFERORS TO SUBMIT PROPOSALS ON THIS BASIS, WHEN IN FACT THE GOVERNMENT INTENDED TO PURCHASE A TRAINER COMPOSED OF UNITS DESIGNED FOR THE SPECIFIC PURPOSE OF THIS PROCUREMENT, THE SPECIFICATION WAS AMBIGUOUS.

WE AGREE THAT TO A CERTAIN EXTENT THIS ALLEGATION IS TRUE, BECAUSE THE BALANCE BETWEEN NEW DESIGN AND THE USE OF EXISTING UNITS IS NOT CLEARLY SPELLED OUT IN THE SPECIFICATIONS. HOWEVER, THIS WOULD NOT SEEM TO BE UNUSUAL IN A PROCUREMENT SEEKING THE DEVELOPMENT OF A NEW INSTRUMENT, BECAUSE THIS AND OTHER ASPECTS OF THE DESIGN WERE AS YET UNKNOWN AND UNDEFINED. TO THE EXTENT THIS WAS A FACTOR IN THE DRAFTING OF THE SPECIFICATIONS, INDEFINITENESS WAS UNAVOIDABLE.

THE NAVY REPORTS THAT A NUMBER OF THE OPERATIONAL MODULES INCORPORATED FOR USE IN THE TRANSMITTING AND RECEIVING PORTION OF HYDROSYSTEMS' TRAINER ARE DESIGNED TO OPERATE AS TRANSCEIVERS WHICH USE COMMON CIRCUITS TO BOTH TRANSMIT AND RECEIVE. ACCORDING TO THE NAVY, THE USE OF TRANSCEIVER MODULES FOR INDEPENDENT TRANSMITTING AND RECEIVING FUNCTIONS RESULTS IN UNUSED DUPLICATE CIRCUITRY WHICH WOULD TEND TO CONFUSE TRAINEES ATTEMPTING TO LEARN THE BASIC ELEMENTS OF JUST A TRANSMITTER OR OF JUST A RECEIVER.

THUS, IT APPEARS THAT EVEN IF THE NAVY HAD DEEMED PROPOSALS PREMISED UPON THE USE OF SAME PROPORTION OF OPERATIONAL COMPONENTS AS THAT PROPOSED BY HYDROSYSTEMS TO BE ACCEPTABLE, YOUR FIRM'S PROPOSAL WOULD STILL HAVE BEEN FOUND UNSUITABLE FOR TRAINING PURPOSES BECAUSE OF THE TRANSCEIVER MODULES INCLUDED IN YOUR DESIGN. IN ANY EVENT, THE PROCURING ACTIVITY IS PRIMARILY RESPONSIBLE FOR DETERMINING THE CONFORMANCE OF TECHNICAL PROPOSALS WITH THE REQUIREMENTS OF THE SPECIFICATIONS. 40 COMP. GEN. 35. IN THE ABSENCE OF EVIDENCE DEMONSTRATING FRAUD OR FAVORITISM, THIS OFFICE WILL CONCUR IN THESE TECHNICAL DETERMINATIONS.

IN ADDITION, YOU POINT OUT THE FACT THAT HYDROSYSTEMS DID NOT REQUEST A WAIVER OR DEVIATION FROM THE SPECIFICATIONS, BUT INSTEAD OFFERED TO PROVIDE A TRAINING DEVICE "IN ACCORDANCE WITH THE REQUIREMENTS OF NAVTRADEVCEN SPECIFICATION 313-1094". SUCH AN OFFER, AS A MINIMUM, CREATES AN AMBIGUITY, BECAUSE THE OFFEROR HAS PROPOSED TO FURNISH TWO INCOMPATIBLE ITEMS, ONE AS DESCRIBED IN HIS OFFER, THE OTHER AS DESCRIBED IN THE SPECIFICATIONS. THIS OFFICE HAS LONG HELD THAT SUCH BLANKET OFFERS TO CONFORM TO THE SOLICITATION REQUIREMENTS WILL NOT OVERCOME PARTICULAR EXCEPTIONS STATED IN THE OFFER. 36 COMP. GEN. 415; 40 COMP. GEN. 132.