B-173367, SEP 28, 1971

B-173367, SEP 28, 1971

BID PROTEST - COMPETITIVE RANGE - ADMINISTRATIVE DISCRETION DENYING PROTEST OF LITTON SYSTEMS, INC., AGAINST THE FAILURE TO CONDUCT NEGOTIATIONS WITH LITTON UNDER AN RFP ISSUED BY THE FAA FOR DESIGN, FABRICATION, TESTING AND INSTALLATION OF AN ENGINEERING MODEL OF AN ELECTRONIC SCAN ANTENNA. THE DETERMINATION THAT LITTON'S PROPOSAL WAS NOT WITHIN THE COMPETITIVE RANGE BECAUSE OF DEFICIENCIES IN CRITICAL AREAS OF THE PROPOSAL IS A VALID EXERCISE OF ADMINISTRATIVE DISCRETION.

TO LITTON SYSTEMS, INC.:

WE REFER TO YOUR LETTERS OF JUNE 22 AND 29 AND AUGUST 27, 1971, WITH ENCLOSURES, PROTESTING AWARD TO ANY OTHER OFFEROR OF A CONTRACT UNDER REQUEST FOR PROPOSALS WA5R-1-0059, ISSUED BY THE FEDERAL AVIATION ADMINISTRATION (FAA), DEPARTMENT OF TRANSPORTATION. THE PROCUREMENT SOLICITED PROPOSALS FOR THE DESIGN, FABRICATION, TESTING, AND INSTALLATION OF AN ENGINEERING MODEL OF AN ELECTRONIC SCAN ANTENNA.

YOU CONTEND THAT NEGOTIATIONS SHOULD HAVE BEEN CONDUCTED BETWEEN THE FAA AND LITTON SYSTEMS, INC., AFTER SUBMISSION OF LITTON'S PROPOSAL. NEGOTIATIONS WERE NOT CONDUCTED BECAUSE FAA TECHNICAL EVALUATORS, IN CONSULTATION WITH OTHER WELL QUALIFIED ENGINEERING PERSONNEL OF THE GOVERNMENT, DETERMINED LITTON'S PROPOSAL TO BE TECHNICALLY UNACCEPTABLE BECAUSE OF DEFICIENCIES FOUND IN CRITICAL AREAS OF THE PROPOSAL. UPGRADING OF THE PROPOSAL THROUGH ADDITIONAL TECHNICAL DISCUSSIONS WAS DETERMINED TO BE IMPOSSIBLE BECAUSE CORRECTION OF THESE DEFICIENCIES WOULD AFFECT THE ENTIRE SYSTEM AND WOULD REQUIRE EXTENSIVE SYSTEM REDESIGN. FURTHER, THE EVALUATORS BELIEVED THE PROPOSAL INCORPORATED AND WAS BASED UPON ENGINEERING ASSUMPTIONS THAT WERE SPECULATIVE AND DESIGN TOLERANCES THAT WERE UNREALISTICALLY CLOSE. OUR OFFICE HAS RECOGNIZED THAT THE PURCHASING ACTIVITY HAS THE PRIMARY RESPONSIBILITY FOR DETERMINING ITS MINIMUM NEEDS AND WHETHER A PRODUCT MEETS THOSE NEEDS. SEE B-170492, OCTOBER 26, 1970. WE HAVE ALSO RECOGNIZED THAT THE DETERMINATION OF WHAT CONSTITUTES A COMPETITIVE RANGE, PARTICULARLY WITH RESPECT TO THE EVALUATION OF TECHNICAL PROPOSALS, IS A MATTER OF ADMINISTRATIVE DISCRETION WHICH WILL NOT BE DISTURBED WHEN SUPPORTED BY THE FACTS OF RECORD. SEE 48 COMP. GEN. 314, 317-318 (1968); B-170317, FEBRUARY 2, 1971; B-169773, OCTOBER 9, 1970; B-161676, AUGUST 22, 1967. FURTHER, IN B -170750(1), FEBRUARY 22, 1971, THERE IS CONTAINED THE FOLLOWING RELEVANT STATEMENT:

"TO ADEQUATELY JUDGE THE VALIDITY OF THE EVALUATION OF YOUR PROPOSAL WOULD REQUIRE A DEGREE OF TECHNICAL COMPETENCE AND KNOWLEDGE WHICH OUR OFFICE DOES NOT POSSESS. WE, THEREFORE, ARE NOT IN A POSITION TO STATE CATEGORICALLY THAT THE DETERMINATION OF THE EVALUATION BOARD, WITH RESPECT TO CALTECH'S PROPOSAL, WAS SO ARBITRARY AND CAPRICIOUS AS TO BE CLEARLY ERRONEOUS. CONSEQUENTLY, WE MAY NOT OBJECT TO THE FINDINGS OF THE EVALUATION BOARD."

IN VIEW OF THE APPLICABILITY OF THESE PRINCIPLES TO THE PROTEST AND SINCE OUR REVIEW OF THE RECORD DISCLOSES NO BASIS UPON WHICH WE COULD QUESTION THE REJECTION OF YOUR PROPOSAL BECAUSE OF SUBSTANTIAL TECHNICAL DEFICIENCIES, YOUR PROTEST MUST BE DENIED.