B-169754, DEC. 23, 1970

B-169754, DEC. 23, 1970

BID PROTEST DENIAL OF PROTEST BY HONEYWELL, INC., AGAINST AWARD OF A NEGOTIATED CONTRACT UNDER RFP ISSUED BY AIR FORCE SYSTEMS COMMAND FOR THE DESIGN, DEVELOPMENT, FABRICATION, TESTING AND INSTALLATION OF A SIMULATOR FOR ELECTRONIC WARFARE TRAINING TO AAI CORPORATION. SEVERAL BASES OF THE PROTEST AND THE REASONS FOR REJECTING THEM ARE AS FOLLOWS: (1) WHERE THERE ARE DIFFERENCES OF TECHNICAL OPINION, GAO ACCEPTS THE CONCLUSIONS OF THE CONTRACTING AGENCY ABSENT A CLEAR SHOWING IT IS IN ERROR, AND THEREFORE THE PROVISION IN THE SOLICITATION PRECLUDING CONSIDERATION OF REVISIONS OF OFFERS IN EXCESS OF NORMAL REVISION DURING THE USUAL CONDUCT OF NEGOTIATIONS IS NOT APPLICABLE WHERE THE REVISED PROPOSAL DID NOT CONSTITUTE A CHANGE TO THE BASIC DESIGN APPROACH. (2) THE ALLEGATION THAT PROTESTANT WAS MISINFORMED CONCERNING THE LIMITATIONS ON PRICE REVISIONS IS REFUTED SINCE A PART OF THE SOLICITATION ADVISED OFFERORS THAT ALL EXPLANATION DESIRED BY OFFERORS MUST BE REQUESTED IN WRITING, THAT ORAL EXPLANATIONS WILL NOT BE BINDING AND IN FACT PROTESTANT DID NOT LIMIT ITS PRICE REVISION TO THE ALLEGED CRITERIA. (3) THE CLAIM THAT NEGOTIATIONS WERE HELD WITH SUCCESSFUL BIDDER AFTER THE CLOSING DATE FOR NEGOTIATIONS IS CONTRADICTED BY THE FACTS. (4) WHILE IT IS TRUE THAT SOME STATEMENTS IN THE SOLICITATION WERE SO GENERAL IN APPLICATION THAT THEY DID NOT ADEQUATELY INFORM OFFERORS OF THE RELATIVE IMPORTANCE OF EVALUATION CRITERIA, ABSENT A SHOWING THAT ANY OFFERORS WAS PLACED AT A COMPETITIVE ADVANTAGE OR DISADVANTAGE, IT IS NOT SUFFICIENT TO JUSTIFY DISTRUBING THE AWARD. (5) WHILE THE EVALUATION TEAM COULD NOT JUSTIFY THE PRICE DIFFERENCE BETWEEN PROTESTANT AND SUCCESSFUL LOW BIDDER, IT MET THE SOLICITATION REQUIREMENT THAT SELECTION BE BASED UPON "A COMBINATION OF PRICING FACTORS AND TECHNICAL FEATURES MOST ADVANTAGEOUS TO THE GOVERNMENT. (6) WHERE PROTESTANT DID NOT INFORM THE PROCURING AGENCY THAT IT WOULD OR HAD LODGED A PROTEST WITH GAO, SUCH PROTEST IS "AFTER AWARD" AND NOT SUBJECT TO THE REQUIREMENTS OF ASPR 2-407.8(B) FOR THE ABOVE REASONS THE PROTEST IS DENIED.

TO REAVIS, POGUE, NEAL AND ROSE:

REFERENCE IS MADE TO A TELEGRAM DATED MAY 8, 1970 AND A LETTER OF MAY 15, 1970, FROM HONEYWELL, INC., AND TO YOUR LETTER OF MAY 22, 1970, AND SUBSEQUENT CORRESPONDENCE, IN BEHALF OF HONEYWELL, PROTESTING AGAINST THE AWARD OF A CONTRACT TO AAI CORPORATION (AAI), UNDER REQUEST FOR PROPOSALS (RFP) NO. F33657-69-R-0994 (RFP-0994), ISSUED BY THE AIR FORCE SYSTEMS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO.

RFP-0994, ISSUED ON AUGUST 25, 1969, REQUESTED PROPOSALS FOR THE DESIGN, DEVELOPMENT, FABRICATION, TESTING AND INSTALLATION OF A SIMULATOR FOR ELECTRONIC WARFARE TRAINING (SEWT). THE SOLICITATION, AS AMENDED, ESTABLISHED OCTOBER 24 AND NOVEMBER 14, 1969, AS THE CLOSING DATES FOR RECEIPT OF TECHNICAL AND PRICE PROPOSALS RESPECTIVELY. THE NINE PROPOSALS RECEIVED WERE TECHNICALLY EVALUATED AND INITIALLY RANKED AS FOLLOWS IN ORDER OF DESCENDING TECHNICAL MERIT:

HONEYWELL, INC. $ 5,320,693.00

AAI CORPORATION 7,563,685.00

CONTROL DATA CORPORATION 12,622,031.00

GENERAL ELECTRIC 18,134,701.00

REFLECTONE 5,712,698.10

GOODYEAR 6,854,010.00

IBM 13,796,353.00

LTV 17,357,772.00

LINK 4,285,265.00

THE FIRST FIVE FIRMS SUBMITTED TECHNICALLY ACCEPTABLE PROPOSALS, WHILE THE REMAINING OFFERORS WERE TECHNICALLY UNACCEPTABLE. THE FOUR UNACCEPTABLE PROPOSALS WERE THEN REVIEWED TO DETERMINE WHETHER THEY COULD BE MADE ACCEPTABLE, THROUGH NEGOTIATIONS, WITHOUT BASIC CHANGES TO THEIR DESIGN APPROACHES. IT WAS CONCLUDED THAT THE PROPOSALS OF IBM, LINK AND GOODYEAR COULD BE UPGRADED WITHOUT SUCH CHANGES. HONEYWELL, AAI, REFLECTONE, GOODYEAR AND LINK WERE CONSIDERED WITHIN THE COMPETITIVE RANGE, WHEN BOTH PRICE AND TECHNICAL FACTORS WERE CONSIDERED. TECHNICAL NEGOTIATIONS WERE CONDUCTED WITH THOSE FIRMS DURING FEBRUARY, 1970, PURSUANT TO WHICH ALL FIVE OFFERORS TIMELY SUBMITTED REVISED PROPOSALS. THE REVISED PROPOSALS WERE TECHNICALLY EVALUATED AND THEIR RANKINGS, TOGETHER WITH THEIR FINAL PRICES, WERE AS FOLLOWS:

HONEYWELL $5,320,693.00

AAI 4,453,413.00

LINK 4,995,388.00

REFLECTONE 5,598,424.54

GOODYEAR7,498,555.00

IT IS ADMINISTRATIVELY REPORTED THAT THE TECHNICAL SUPERIORITY OF THE HONEYWELL PROPOSAL WAS NOT SO GREAT AS TO JUSTIFY AWARD TO IT INSTEAD OF TO AAI. THEREFORE, AWARD WAS MADE ON MAY 8, 1970, TO AAI AT ITS PIRCE OF TO AAI. THEREFORE, AWARD WAS MADE ON MAY 8, 1970, TO AAI AT ITS PRICE OF $4,453,413.

WE SHALL DISCUSS THE SIX BASES OF YOUR PROTEST IN THE ORDER IN WHICH THEY HAVE BEEN PRESENTED IN YOUR CORRESPONDENCE.

THE INSTANT SOLICITATION CONTAINED THE CLAUSE "LATE OFFERS AND MODIFICATIONS OR WITHDRAWALS (1968 DEC)," WHICH PRECLUDES CONSIDERATION OF OFFERS OR MODIFICATIONS RECEIVED AFTER THE EXACT TIME SET FOR RECEIPT THEREOF, EXCEPT UNDER CIRCUMSTANCES NOT PRESENT HERE. THE PROVISIONS OF THE CLAUSE DO NOT APPLY TO "NORMAL REVISIONS OF OFFERS BY SELECTED OFFERORS DURING THE USUAL CONDUCT OF NEGOTIATIONS WITH SUCH OFFERORS." AAI SUBMITTED A REVISED PROPOSAL AFTER THE INITIAL CLOSING DATE FOR RECEIPT OF PROPOSALS AND BEFORE THE CLOSING DATE FOR NEGOTIATIONS. YOUR FIRST CONTENTION IS THAT:

" *** AAI CHANGED ITS TECHNICAL PROPOSAL *** SO SUBSTANTIALLY THAT IT WAS IN EFFECT SUBMITTING A TOTALLY NEW PROPOSAL, OR AT THE VERY LEAST MODIFICATIONS FAR IN EXCESS OF THOSE NORMAL DURING NEGOTIATIONS." YOU THEREFORE MAINTAIN THAT AAI'S REVISED PROPOSAL SHOULD HAVE BEEN REJECTED AS "LATE" PURSUANT TO THE "LATE OFFERS AND MODIFICATIONS OR WITHDRAWALS" CLAUSE. FOR THE REASONS STATED BELOW, WE NEED NOT DECIDE WHETHER YOUR INTERPRETATION OF THE CLAUSE REGARDING ACCEPTANCE OF LATE PROPOSALS OR MODIFICATIONS IS CORRECT. THE APPLICATION OF THE CLAUSE AS YOU SUGGEST FIRST REQUIRES A FINDING THAT THE REVISION OF AAI'S PROPOSAL WAS SO EXTENSIVE AS TO IN EFFECT BE A NEW PROPOSAL.

YOU STATE THAT HONEYWELL'S APPROACH WAS TO CARRY BASIC INTELLIGENCE IN DIGITAL FORMAT UP TO A DIGITAL-TO-ANALOG CONVERTER THE SOLE PURPOSE OF WHICH WAS TO CONVERT THE DIGITAL INTELLIGENCE TO THE ANALOG FORMAT NECESSARY TO DRIVE THE INSTRUMENTS OBSERVED BY THE TRAINEE. IN CONTRAST, YOU CONTEND, AAI INITIALLY PROPOSED A DIGITAL COMPUTER WITH SOME DIGITAL PROCESSING TO CONTROL ANALOG SIGNAL AND FUNCTION GENERATORS, WHICH IN TURN STIMULATED THE TRAINEE'S INSTRUMENTS. YOU ASSERT THAT IT IS YOUR BELIEF AAI WAS PERMITTED TO REVISE ITS PROPOSAL TO ADOPT AN APPROACH VERY SIMILAR TO YOURS.

IT IS ADMINISTRATIVELY REPORTED THAT AAI WAS NOT INFORMED BY THE AIR FORCE THAT THEIR INITIAL TECHNICAL APPROACH WAS OR WAS NOT FAVORED, AND THAT AAI'S REVISED PROPOSAL DID NOT CONSTITUTE A CHANGE TO THEIR BASIC DESIGN APPROACH. IT IS APPARENT FROM THE PRESENT RECORD THAT THERE IS SUBSTANTIAL DISAGREEMENT BETWEEN HONEYWELL AND THE AIR FORCE CONCERNING THE EXTENT OF THE REVISIONS TO AAI'S PROPOSAL. IT IS THE POSITION OF OUR OFFICE, IN DIFFERENCES OF TECHNICAL OPINION SUCH AS THIS TO ACCEPT THE CONCLUSION OF THE CONTRACTING AGENCY IN THE ABSENCE OF A CLEAR SHOWING IT IS IN ERROR. BASED UPON THE PRESENT RECORD, WE ARE UNABLE TO DISAGREE WITH THE CONTRACTING AGENCY'S CONCLUSION THAT THE REVISIONS TO AAI'S PROPOSAL DID NOT CHANGE ITS BASIC DESIGN APPROACH. THEREFORE, WE ARE AWARE OF NO BASIS UPON WHICH AAI'S REVISED PROPOSAL COULD BE CHARACTERIZED AS "LATE," AND WE MUST REJECT YOUR FIRST CONTENTION.

YOUR SECOND CONTENTION ARISES OUT OF AMENDMENT 0005 TO THE SOLICITATION. UPON COMPLETION OF TECHNICAL NEGOTIATIONS IN FEBRUARY, 1970, THE FIVE OFFERORS WITHIN A COMPETITIVE RANGE WERE ADVISED BY AMENDMENT 0005, DATED MARCH 5, 1970:

"THE PURPOSE OF THIS AMENDMENT IS TO SPECIFY THE CLOSING DATE FOR NEGOTIATIONS OF SUBJECT REQUEST FOR PROPOSAL. HOUR AND DATE FOR RECEIPT OF ANY PRICE, TECHNICAL, OR OTHER REVISIONS IN YOUR PROPOSAL THAT MAY HAVE RESULTED FROM THE NEGOTIATIONS, ARE THREE (3) PM, EDT, 1970 MARCH 13." ALL FIVE OFFERORS SUBMITTED TIMELY REVISIONS TO THEIR PROPOSALS, IN WHICH HONEYWELL'S PRICE REMAINED UNCHANGED, LINK'S AND GOODYEAR'S PRICES INCREASED AND AAI'S AND REFLECTONE'S PRICES WERE REDUCED. AAI BECAME THE LOW OFFEROR. THE RECORD SUPPORTS THE CONCLUSION THAT APPROXIMATELY ONE- THIRD OF AAI'S REDUCTION COULD BE ATTRIBUTED TO DESIGN CHANGES AND THAT THE MAJOR PORTION OF THE REDUCTION APPARENTLY WAS BASED ON AN AAI MANAGEMENT DECISION TO REDUCE ITS PRICE.

YOU CONTEND THAT THE AAI PRICE REDUCTION WAS IMPROPERLY ACCEPTED, BECAUSE IT DID NOT CONFORM TO THE REQUIREMENTS OF AMENDMENT 0005. YOU STATE THAT HONEYWELL INTERPRETED THE AMENDMENT AS RESTRICTING ANY PRICE REVISIONS TO THOSE WHICH COULD BE ATTRIBUTED TO TECHNICAL CHANGES MADE AS A RESULT OF THE FEBRUARY TECHNICAL NEGOTIATIONS. SINCE HONEYWELL'S TECHNICAL CHANGES WERE MINOR, ITS PRICE REMAINED UNCHANGED. IN CONTRAST, YOU ASSERT, AAI WAS GIVEN AN UNRESTRICTED OPPORTUNITY TO SUBMIT A BEST AND FINAL OFFER. YOU MAINTAIN THAT THIS UNEQUAL TREATMENT OF OFFERORS VIOLATED THE REQUIREMENT OF 10 U.S.C. 2304(G) THAT DISCUSSIONS BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WITHIN A COMPETITIVE RANGE.

IN REPLY, THE AIR FORCE OBSERVES THAT HONEYWELL, IN ITS REVISED PRICE PROPOSAL OF MARCH 10, 1970, CONCLUDED THAT PRICE INCREASES RESULTING FROM TECHNICAL CHANGES WOULD LARGELY BE OFFSET BY CHANGED OVERHEAD AND LABOR RATES, AND THEREFORE HONEYWELL'S PRICE REMAINED UNCHANGED. THUS, HONEYWELL CONSIDERED OTHER THAN TECHNICAL CHANGES IN DETERMINING ITS PRICE. FURTHER, IT IS THE AIR FORCE POSITION THAT ALL OFFERORS WERE FREE TO SUBMIT BEST AND FINAL OFFERS, INCLUDING PRICE CHANGES FOR AREAS OTHER THAN THE TECHNICAL CHANGES WHICH RESULTED FROM NEGOTIATIONS.

IN FURTHER SUPPORT OF YOUR INTERPRETATION OF AMENDMENT 0005, YOU HAVE SUBMITTED AFFIDAVITS FROM FOUR HONEYWELL EMPLOYEES, WHICH ASSERT THAT IN CONVERSATIONS HELD WITH CERTAIN EMPLOYEES OF THE PROCURING ACTIVITY DURING THE TECHNICAL NEGOTIATIONS AND AGAIN BEFORE SUBMISSION OF REVISED PROPOSALS, HONEYWELL WAS INFORMED THAT ONLY THOSE PRICE CHANGES WOULD BE ALLOWED WHICH RELATED TO TECHNICAL REVISIONS MADE AS THE RESULT OF THE TECHNICAL NEGOTIATIONS. WHILE THE AIR FORCE EMPLOYEES WHO WERE NAMED IN THE AFFIDAVITS HAVE DENIED THAT THEY INFORMED HONEYWELL THAT ITS PRICE REVISIONS WOULD BE RESTRICTED TO THOSE ATTRIBUTABLE TO TECHNICAL CHANGES, ONE OF THE AFFIDAVITS SUBMITTED BY YOU STATED THAT AN AIR FORCE OFFICER OVERHEARD ONE OF THESE CONVERSATIONS. IN VIEW THEREOF, OUR OFFICE INTERVIEWED AND OBTAINED AN AFFIDAVIT FROM THE OFFICER IN WHICH HE ADVISES THAT ON SEVERAL OCCASIONS HONEYWELL PERSONNEL "BROUGHT UP THE QUESTION" OF PRICE CHANGES, TO WHICH THE AIR FORCE CONTRACT NEGOTIATOR ALWAYS RESPONDED "BY REFERRING TO AMENDMENT 0005 TO THE REQUEST FOR PROPOSALS AND BY PARAPHRASSING THE AMENDMENT." THE OFFICER FURTHER STATED THAT HIS "IMPRESSION" OF THESE RESPONSES AND HIS FEELING IN REGARD TO AMENDMENT 0005 WAS THAT PRICE CHANGES WOULD HAVE TO BE ATTRIBUTABLE TO TECHNICAL REVISIONS.

THE STATEMENTS OF THE HONEYWELL AND AIR FORCE PERSONNEL WHO WERE INVOLVED IN THE CONVERSATIONS CREATE A CONFLICT OF FACT WHICH IN OUR OPINION IS NOT RESOLVED BY THE AFFIDAVIT WHICH WE OBTAINED FROM THE AIR FORCE OFFICER WHO OVERHEARD THE CONVERSATION. THE OFFICER'S AFFIDAVIT DOES NOT CLEARLY ESTABLISH THAT IT IS REFERRING TO THE SAME CONVERSATION RELATED IN THE HONEYWELL AFFIDAVIT AND WHICH THE OFFICER IS ALLEGED TO HAVE OVERHEARD. MOREOVER, THE OFFICER DOES NOT STATE THAT HONEYWELL WAS TOLD THAT ONLY THOSE PRICE CHANGES WHICH RESULTED FROM TECHNICAL REVISIONS WOULD BE PERMITTED. RATHER, HE STATES THAT SUCH WAS HIS "IMPRESSION" FROM THE CONTRACT NEGOTIATOR'S PARAPHRASING OF AMENDMENT 0005, WHICH ESTABLISHED A TIME "FOR RECEIPT OF ANY PRICE, TECHNICAL, OR OTHER REVISIONS IN YOUR PROPOSAL THAT MAY HAVE RESULTED FROM THE NEGOTIATIONS *** ."

UPON THE PRESENT RECORD BEFORE US, WE ARE UNABLE TO CONCLUDE THAT HONEYWELL WAS INFORMED BY PERSONNEL OF THE PROCURING ACTIVITY THAT ONLY THOSE PRICE CHANGES WHICH RESULTED FROM TECHNICAL REVISIONS WOULD BE PERMITTED. ADDITIONALLY, HOWEVER, IT SHOULD BE NOTED THAT EVEN IF HONEYWELL WAS ADVISED IN THE MANNER IT ALLEGES, IT WAS NOT ENTITLED TO RELY OR ACT UPON SUCH ADVICE, SINCE IN SEEKING AN INTERPRETATION OF AMENDMENT 0005, HONEYWELL DID NOT COMPLY WITH THE REQUIREMENTS OF PARAGRAPH 3, STANDARD FORM 33A, WHICH FORMED A PART OF THE SOLICITATION AND WHICH ADVISED OFFERORS:

"3. EXPLANATION TO OFFERORS. ANY EXPLANATION DESIRED BY AN OFFEROR REGARDING THE MEANING OR INTERPRETATION OF THE SOLICITATION, DRAWINGS, SPECIFICATIONS, ETC., MUST BE REQUESTED IN WRITING AND WITH SUFFICIENT TIME ALLOWED FOR A REPLY TO REACH OFFERORS BEFORE THE SUBMISSION OF THEIR OFFERS. ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE THE AWARD OF THE CONTRACT WILL NOT BE BINDING. ANY INFORMATION GIVEN TO A PROSPECTIVE OFFERORS AS AN AMENDMENT OF THE SOLICITATION, IF SUCH INFORMATION IS NECESSARY TO OFFERORS IN SUBMITTING OFFERS ON THE SOLICITATION OR IF THE LACK OF SUCH INFORMATION WOULD BE PREJUDICIAL TO UNINFORMED OFFERORS."

YOUR THIRD CONTENTION IS THAT NEGOTIATIONS WERE HELD WITH AAI ALONE AFTER THE CLOSING DATE FOR NEGOTIATIONS, IN VIOLATION OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-805.1(B). THIS ALLEGATION IS BASED UPON HONEYWELL'S BELIEF THAT AAI'S FINAL PRICE AS OF THE CLOSING DATE FOR NEGOTIATIONS, MARCH 13, 1970, WAS $5.2 MILLION AND THE CONTRACT PRICE OF $4.453 MILLION WAS OBTAINED THROUGH SUBSEQUENT NEGOTIATIONS WITH AAI.

THE PRESENT RECORD CONTAINS NO EVIDENCE THAT AAI EVER SUBMITTED A PRICE OF $5.2 MILLION. AAI'S REVISED PRICE PROPOSAL DATED MARCH 12, 1970, WHICH WAS TIMELY RECEIVED, AND THE ABSTRACT OF PROPOSALS UPON WHICH THE REVISED PROPOSALS WERE RECORDED BOTH REFLECT THAT AAI SUBMITTED A REVISED PRICE OF $4,453,413. FURTHER, IT IS ADMINISTRATIVELY REPORTED THAT NO NEGOTIATIONS WERE CONDUCTED WITH AAI OR ANY OTHER OFFEROR AFTER MARCH 13, 1970. YOUR THIRD CONTENTION THUS APPEARS BASED ON A MISAPPREHENSION OF FACT, AND IS THEREFORE WITHOUT MERIT.

YOUR FOURTH ARGUMENT IS THAT THE SOLICITATION WAS DEFICIENT IN THAT IT DID NOT INFORM OFFERORS OF THE EVALUATION CRITERIA APPLICABLE TO THEIR PROPOSALS AND THE RELATIVE IMPORTANCE OF SUCH CRITERIA. WE DO NOT BELIEVE THE RECORD SUPPORTS YOUR ASSERTION THAT THE ONLY EXPRESSION OF EVALUATION CRITERIA IN THE SOLICITATION WAS THE STATEMENT ON PAGE 10 THEREOF THAT:

"THE GOVERNMENT SHALL EVALUATE AND NEGOTIATE THE PROPOSALS SUBMITTED FROM THE POINT OF VIEW OF THE COMBINATION OF PRICING FACTORS AND TECHNICAL FEATURES MOST ADVANTAGEOUS TO THE GOVERNMENT."

ATTACHMENT "1" TO THE INSTANT SOLICITATION, A NINE PAGE DOCUMENT ENTITLED "REQUIREMENTS FOR TECHNICAL PROPOSALS," ADVISED OFFERORS: "B. PROPOSAL EVALUATION:

"(1) THE TECHNICAL PORTION OF YOUR PROPOSAL, INCLUDING MANAGEMENT AND TECHNICAL INFORMATION, WILL BE EVALUATED ON THE BASIS OF ITS CONTENT WHICH WILL BE JUDGED AS TO ITS DISPLAY OF SUCH ITEMS AS:

(A) YOUR COMPLIANCE WITH THE REQUIREMENTS OF THE REQUEST FOR PROPOSAL AND YOUR STATED DEGREE OF COMPLIANCE WITH EXHIBIT REQUIREMENTS.

(B) YOUR UNDERSTANDING OF THE PROBLEM. (C) YOUR TECHNICAL ORGANIZATION INCLUDING THE INTERACTIONS OF THE WORKING GROUPS. THIS SHALL INCLUDE SUBCONTRACTORS DISCUSSED AS ELEMENTS OF THE TECHNICAL ORGANIZATION.

(D) THE SOUNDNESS OF YOUR APPROACH.

(E) THE SIMPLICITY OF YOUR PROPOSED DESIGN.

(F) THE EASE OF MAINTENANCE OF THE EQUIPMENT PROPOSED BY YOUR COMPANY.

(G) YOUR PAST SPECIFIC EXPERIENCE AS RELATED TO ELECTRONIC WARFARE EQUIPMENT AND SIMULATORS AND OTHER TRAINING EQUIPMENT, BOTH A FIRM INCLUDING SUBCONTRACTORS AND AS KEY INDIVIDUALS.

"(2) TO PROVIDE A BASIS FOR THIS EVALUATION, PROPOSALS SHALL CONTAIN THE INFORMATION AS REQUIRED HEREIN. THESE PROPOSAL REQUIREMENTS ARE INDICATIVE OF CONTENT, RATHER THAN FORM. IF YOUR PROPOSAL INCLUDES INFORMATION BEYOND THE REQUIREMENTS OF THIS REQUEST FOR PROPOSAL, IT IS REQUESTED THAT IT BE KEPT BRIEF AND TO THE POINT." ATTACHMENT "1" THEN REQUIRED OFFERORS TO SUBMIT SPECIFIC INFORMATION IN THEIR TECHNICAL PROPOSALS CONCERNING MANAGEMENT INFORMATION (13 ITEMS IDENTIFIED), TECHNICAL INFORMATION (13 ITEMS IDENTIFIED), PREVIOUS HARDWARE PRODUCED, AND TECHNICAL DRAWINGS. BASED UPON OUR EXAMINATION OF THE SOLICITATION, WE MUST CONCLUDE THAT OFFERORS WERE ADEQUATELY ADVISED OF THE INFORMATION REQUIRED FOR EVALUATION OF THEIR PROPOSALS AND THAT THE STATEMENT OF EVALUATION CRITERIA WAS NOT "VAGUE."

WITH REGARD TO WHETHER OFFERORS WERE ADEQUATELY INFORMED OF THE RELATIVE IMPORTANCE OF THESE EVALUATION CRITERIA, YOU MAINTAIN THAT THE SOLICITATION SHOULD HAVE DISCLOSED THE SPECIFIC NUMERICAL "WEIGHTING" OR POINT VALUE OF EACH CRITERION. IN THIS CONNECTION, WE STATED IN OUR DECISION B-170449(1), NOVEMBER 17, 1970:

"WHILE THIS IS AN ACCEPTABLE METHOD OF CONVEYING TO OFFERORS THE RELATIVE IMPORTANCE OF EVALUATION CRITERIA (SEE B-170142, OCTOBER 22, 1970), IT IS NOT A REQUIRED METHOD. RATHER, IT HAS BEEN OUR POSITION THAT OFFERORS SHOULD BE INFORMED OF 'THE BROAD SCHEME OF SCORING TO BE EMPLOYED' AND 'REASONABLY DEFINITE INFORMATION AS TO THE DEGREE OF IMPORTANCE TO BE ACCORDED TO PARTICULAR FACTORS IN RELATION TO EACH OTHER.' 49 COMP. GEN. 229, 230-231 (1969)."

THE ONLY NARRATIVE EXPRESSIONS OF THE RELATIVE IMPORTANCE OF THE EVALUATION CRITERIA CONTAINED IN ATTACHMENT "1" TO THE SOLICITATION ARE THE FOLLOWING:

"YOUR DISCUSSION OF THE COMPUTER SYSTEM, ITS GENERAL DESCRIPTION, ITS PROGRAMMING, RELIABILITY, MAINTAINABILITY, CAPABILITIES, ETC., WILL SIGNIFICANTLY INFLUENCE THE TECHNICAL EVALUATION. ***

"THE EMITTER GENERATION SYSTEM IS CONSIDERED TO BE A KEY ELEMENT IN THE PROCUREMENT OF THE SIMULATOR AND WILL SIGNIFICANTLY INFLUENCE THE TECHNICAL EVALUATION. ***

WE REGARD THESE STATEMENTS AS HAVING BEEN SO GENERAL IN APPLICATION THAT THEY DID NOT ADEQUATELY INFORM OFFERORS OF THE RELATIVE IMPORTANCE OF THE EVALUATION CRITERIA. ALTHOUGH SOUND PROCUREMENT POLICY WOULD REQUIRE A MORE EXPLICIT STATEMENT OF RELATIVE IMPORTANCE, WHERE, AS IN THIS CASE, THE ADEQUACY OF THE STATEMENT WAS NOT QUESTIONED PRIOR TO SUBMISSION OF PROPOSALS, AND THE RECORD DOES NOT ESTABLISH THAT ANY OFFEROR WAS PLACED AT A COMPETITIVE ADVANTAGE OR DISADVANTAGE BY THE LACK OF A MORE EXPLICIT STATEMENT, OUR OFFICE IS UNABLE TO CONCLUDE THAT THE DEFICIENCY IS SUFFICIENTLY MATERIAL TO JUSTIFY DISTRUBING THE AWARD TO AAI. COMPARE 50 COMP. GEN. (B-169645(1), JULY 24, 1970).

YOUR FIFTH CONTENTION IS THAT THE SELECTION OF AAI WAS NOT BASED UPON A "COMBINATION OF PRICING FACTORS AND TECHNICAL FEATURES MOST ADVANTAGEOUS TO THE GOVERNMENT" AS REQUIRED BY THE SOLICITATION, BUT WAS BASED UPON PRICE ALONE. IN THIS REGARD, IT IS ADMINISTRATIVELY REPORTED THAT AS A RESULT OF THE FINAL TECHNICAL EVALUATION:

" *** HONEYWELL WAS RATED NUMBER ONE WITH 73 POINTS, WHILE AAI WAS A CLOSE SECOND WITH 68 POINTS. THE AIR FORCE EVALUATION TEAM COULD NOT JUSTIFY THE DIFFERENCE IN THE PRICE OF THE HONEYWELL SYSTEM AT $5.32 MILLION VERSUS THE AAI SYSTEM AT $4.45 MILLION. IT WAS THEREFORE RECOMMENDED THAT THE CONTRACT BE AWARDED TO AAI."

YOUR SIXTH ARGUMENT IS THAT THE AIR FORCE IMPROPERLY MADE AWARD TO AAI, AFTER BEING INFORMED OF YOUR PROTEST TO THIS OFFICE, WITHOUT FOLLOWING THE PROCEDURES PRESCRIBED BY ASPR 3-509 AND 2-407.8. ALTHOUGH HONEYWELL INITIALLY CONTENDED THAT ITS INTENTION TO PROTEST TO THIS OFFICE WAS EXPRESSED TO THE AIR FORCE ON THE DAY OF THE AWARD TO AAI, YOU HAVE SUBSEQUENTLY CONCEDED THAT SUCH NOTICE WAS NOT IN FACT GIVEN. HOWEVER, YOU MAINTAIN THAT SINCE HONEYWELL HAD ALLEGED TO THE AIR FORCE THAT CERTAIN IMPROPRIETIES IN THE INSTANT PROCUREMENT HAD OCCURRED, THE AIR FORCE SHOULD HAVE BEEN AWARE "OF THE STRONG LIKELIHOOD OF A PROTEST" TO OUR OFFICE.

ALTHOUGH CERTAIN ALLEGED IRREGULARITIES IN THE PROCUREMENT WERE DISCUSSED BY HONEYWELL AND THE AIR FORCE, IT DOES NOT APPEAR FROM THE PRESENT RECORD THAT, PRIOR TO THE AWARD TO AAI, THE PROCURING ACTIVITY HAD KNOWLEDGE OF THE RECEIPT IN OUR OFFICE OF A PROTEST OR THAT HONEYWELL HAD ADVISED THE PROCURING ACTIVITY OF ITS INTENTION TO PROTEST TO OUR OFFICE IN THE EVENT OF AN AWARD TO AAI. COMPARE 49 COMP. GEN. (B-167025, MARCH 5, 1970). UNDER THESE CIRCUMSTANCES, YOUR PROTEST WAS "AFTER AWARD" AND NOT SUBJECT TO THE REQUIREMENTS OF ASPR 2-407.8(B).

IN VIEW OF THE FOREGOING, YOUR PROTEST MUST BE DENIED.