B-173702, JAN 25, 1972, 51 COMP GEN 433

B-173702, JAN 25, 1972, 51 COMP GEN 433

CONTRACTS - NEGOTIATION - COMPLETION - DISCUSSION WITH ALL OFFERORS REQUIREMENT - WRITTEN OR ORAL NEGOTIATIONS WRITTEN NEGOTIATIONS CONDUCTED WITH AN OFFEROR WHOSE PROPOSAL IN RESPONSE TO A REQUEST FOR QUOTATIONS TO PROCURE A FATIGUE ANALYSIS PROGRAM FOR B-57 AIRCRAFT WAS DEFICIENT WITH RESPECT TO THE COMPONENT TEST PLAN SPECIFICATION AND, THEREFORE, ITS PROPOSAL WAS NONRESPONSIVE, SATISFIED THE REQUIREMENTS OF PARAGRAPH 3-805.1 OF THE ARMED SERVICES PROCUREMENT REGULATION IMPLEMENTING 10 U.S.C. 2304(G) TO PROVIDE THAT "WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE," AND DISCHARGED THE CONTRACTING OFFICER'S DUTY TO NEGOTIATE, AND FURTHER NEGOTIATIONS WERE NOT REQUIRED BECAUSE THE OFFEROR ADVISED IN WRITING OF THE DEFICIENCIES IN ITS PROPOSAL FAILED IN HIS FINAL OFFER TO COMPLY WITH THE SPECIFICATIONS FOR THE COMPONENT TEST PLAN.

TO THE SAN DIEGO AIRCRAFT ENGINEERING, INC., JANUARY 25, 1972:

WE REFER TO YOUR LETTER OF JULY 23, 1971, AND SUBSEQUENT CORRESPONDENCE, RELATING TO YOUR PROTEST AGAINST AN AWARD TO TECHNOLOGY, INC., UNDER REQUEST FOR QUOTATIONS (RFQF09603-71-Q-1329, ISSUED BY WARNER ROBINS AIR MATERIAL AREA (WRAMA).

THE BASIS FOR YOUR PROTEST, AS STATED IN YOUR REFERENCED LETTER, IS YOUR BELIEF THAT WRAMA DISPLAYED EXTREMELY POOR JUDGMENT IN AWARDING THE CONTRACT TO ANOTHER FIRM SINCE YOU WERE THE LOW OFFEROR. YOU ASSERT THAT YOUR FIRM IS EMINENTLY QUALIFIED TO PERFORM THE REQUIRED PROGRAM AND THAT YOUR QUOTATION WAS RESPONSIVE TO THE SOLICITATION.

THE AIR FORCE REPORT IN THIS MATTER DISCLOSES THAT TWENTY FIRMS WERE SOLICITED AND TEN ADDITIONAL FIRMS REQUESTED COPIES OF THE RFQ WHICH CALLED FOR A FATIGUE ANALYSIS PROGRAM FOR B-57 AIRCRAFT. SIX FIRMS, INCLUDING YOURS, SUBMITTED QUOTATIONS FOR THE PROGRAM.

A TECHNICAL EVALUATION REVEALED THAT FIVE OF THE OFFERORS, BOEING, MCDONNELL-DOUGLAS, GENERAL DYNAMICS, FAIRCHILD-HILLER AND TECHNOLOGY INCORPORATED, BASICALLY COMPLIED WITH THE RFQ AND THE SPECIFICATION. THE REPORT ON THE TECHNICAL EVALUATION OF YOUR INITIAL PROPOSAL SETS FORTH A NUMBER OF DEFICIENCIES, THE PRIMARY ONE BEING AN UNACCEPTABLE CHANGE IN THE SPECIFICATION ASSOCIATED WITH THE COMPONENT TEST PLAN. THE REPORT ALSO STATED THAT YOUR FIRM HAD NOT ESTABLISHED ITS QUALIFICATIONS TO ACCOMPLISH CERTAIN ASPECTS OF THE REQUIRED PROGRAM. HOWEVER, SINCE NEGOTIATIONS HAD NOT BEEN CLOSED, THESE DEFICIENCIES DID NOT RESULT IN REJECTION OF YOUR OFFER AND YOU WERE AFFORDED ANOTHER OPPORTUNITY TO BRING YOUR OFFER INTO COMPLIANCE.

BY LETTER OF JUNE 4, 1971, ALL SIX OFFERORS WERE ADVISED THAT NEGOTIATIONS WOULD BE CONCLUDED ON JUNE 11, 1971, AND ALL WERE REQUESTED TO SUBMIT THEIR BEST AND FINAL OFFERS BY THAT DATE. ATTACHMENT 1 TO THE JUNE 4 LETTER TO YOUR FIRM ADVISED AS FOLLOWS:

1. THE FOLLOWING ADDITIONAL INFORMATION MUST BE FURNISHED:

A. MORE DETAIL CONCERNING PROGRAMS ACCOMPLISHED, MAGNITUDE, SCOPE, TYPE, ETC.

B. MORE DETAIL CONCERNING QUALIFICATION TO ACCOMPLISH FATIGUE ANALYSIS ON MULTIJET AIRCRAFT AND TO DESIGN/CONSTRUCT/TEST COMPONENTS.

C. CERTIFICATION THAT OSCILLOGRAPH DATA RECORDING AND REDUCTION AS REQUIRED BY THE SPECIFICATION WILL BE FURNISHED

D. QUOTATION MUST BE IN ACCORDANCE WITH REQUIREMENTS OF RFQ AND SPECIFICATION INCLUDING THE COMPONENT TEST PROGRAM.

2. DUE TO THE WIDE RANGE IN QUOTATIONS RECEIVED, YOUR SPECIFIC REVIEW OF YOUR PROPOSAL FOR PARAGRAPHS 4.3, 4.4, 4.5, 4.6, 5.1, 5.2, 5.3, 5.4, 5.5, 5.6, AND 6.1 IS REQUESTED TO PRECLUDE ANY MISTAKE IN BID.

THE ELEVEN NUMBERED PARAGRAPHS CITED IN THE SECOND ITEM OF THE ATTACHMENT WERE THOSE FOR WHICH IT APPEARED THAT YOU HAD UNDERESTIMATED THE MANHOURS REQUIRED TO ACCOMPLISH THE WORK DESCRIBED OR FOR WHICH YOU HAD PROPOSED THE UNACCEPTABLE CHANGE IN THE COMPONENT TEST PLAN.

THE BEST AND FINAL OFFERS RECEIVED FROM ALL SIX OFFERORS WERE SUBMITTED FOR TECHNICAL EVALUATION. ALTHOUGH YOU PROPOSED A SMALL INCREASE IN THE NUMBER OF MANHOURS, YOUR TECHNICAL APPROACH WITH REGARD TO THE COMPONENT TEST PLAN REMAINED THE SAME AS IN YOUR ORIGINAL OFFER. THE EVALUATION REPORT ON THE FINAL OFFERS STATES THAT YOU PRESENTED A COMPONENT TEST PLAN WHICH DEFINED LOADS TO BE APPLIED AND METHODS OF LOAD APPLICATION IN DIRECT CONFLICT WITH SECTIONS 5.2.4.1 AND 6.1.4.1 OF THE SPECIFICATION. YOUR COMPONENT TEST PLAN PROPOSED A LOAD SPECTRUM OF FIVE LOAD LEVELS WITH A MAXIMUM LOAD OF 20,000 LBS. TENSION AND 10,000 LBS. COMPRESSION FOR EACH OF TESTS REQUIRED BY THE ABOVE SECTIONS, WHEREAS THOSE SECTIONS PROVIDED THAT THE CONTRACTOR SHOULD TEST EACH SPECIMEN TO A REPRESENTATIVE SPECTRUM AS DEFINED BY THE APPROPRIATE DYNAMIC RESPONSE MODEL AND THE SERVICE LOADS RECORDING PROGRAM. THUS THE TEST LOAD SPECTRUM COULD NOT BE DETERMINED BEFORE THOSE TWO PROGRAMS WERE COMPLETED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4.0 WHICH DESCRIBES THE BASIC PROGRAM. IN ADDITION, STRESS DOCUMENTS AVAILABLE TO ALL BIDDERS SHOWED THAT MUCH HIGHER LOADS WOULD BE REQUIRED THAN THOSE WHICH YOU PRESENTED IN YOUR TEST PLAN. THE EVALUATION REPORT CONCLUDED THAT YOUR COMPONENT TEST PLAN REPRESENTED A CHANGE TO SECTIONS 5.2 AND 6.1 OF THE SPECIFICATION AND THAT THIS CHANGE WAS NOT ACCEPTABLE.

BASED ON THE EVALUATION REPORT, THE CONTRACTING OFFICER REJECTED YOUR QUOTATION AND MADE AWARD TO TECHNOLOGY INCORPORATED, THE NEXT LOW OFFEROR.

YOUR LETTER OF SEPTEMBER 1, 1971, COMMENTING ON THE AIR FORCE REPORT, TAKES ISSUE WITH THE TECHNICAL EVALUATION ON WHICH REJECTION OF YOUR OFFER WAS BASED AND REPEATS THE ASSERTIONS IN YOUR ORIGINAL LETTER OF PROTEST THAT YOUR FIRM IS EMINENTLY QUALIFIED TO PERFORM THE REQUIRED PROGRAM, THAT YOUR OFFER WAS RESPONSIVE AND THAT AWARD TO ANOTHER FIRM AT A HIGHER PRICE WAS IMPROPER. EXHIBIT 5 WITH YOUR LETTER STATES, HOWEVER, THAT YOU RECOGNIZE THAT THE LOAD LEVELS YOU PROPOSED IN YOUR COMPONENT TEST PLAN DID NOT INCLUDE THOSE LOADS NECESSARY FOR WING SPARS AND THAT YOU COULD NOT GO UP TO THE MAXIMUM LOAD LEVELS WITH THE SPECTRUM YOU PROPOSED. IS YOUR POSITION THAT YOU LEFT YOUR PROPOSAL OPEN TO NEGOTIATIONS CONCERNING THE LOAD LEVELS AND YOU SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO NEGOTIATE FURTHER IN THAT RESPECT.

THE OTHER EXHIBITS WITH YOUR LETTER OF COMMENT ON THE AIR FORCE REPORT RAISE ADDITIONAL QUESTIONS REGARDING THE FAILURE OF ONE OF YOUR SUBCONTRACTORS, WHO WAS ON THE BIDDERS LIST, TO OBTAIN A COPY OF THE RFQ IN TIME TO ATTEND THE BIDDERS CONFERENCE. HOWEVER, SUCH FAILURE DOES NOT APPEAR TO HAVE MATERIALLY PREJUDICED YOU SINCE YOU SUBMITTED A TIMELY QUOTATION AND PARTICIPATED IN THE SUBSEQUENT NEGOTIATIONS. YOU ALSO DOCUMENT EXTENSIVELY THE QUALIFICATIONS OF THE PERSONNEL OF YOUR FIRM AND OF YOUR SUBCONTRACTORS TO PERFORM THE STRESS ANALYSIS PROGRAM.

ALTHOUGH THE EVALUATION OF YOUR INITIAL OFFER EXPRESSED SOME RESERVATIONS ABOUT THESE QUALIFICATIONS, SUCH RESERVATIONS WERE NOT SUFFICIENT TO REQUIRE REJECTION OF YOUR OFFER AND YOU WERE PERMITTED TO NEGOTIATE FURTHER AND SUBMIT A BEST AND FINAL OFFER. THE RECORD SHOWS THAT THE SOLE BASIS FOR REJECTION OF YOUR FINAL OFFER WAS THE UNACCEPTABLE NATURE OF YOUR PROPOSED COMPONENT TEST PLAN. IN VIEW THEREOF, YOUR QUALIFICATIONS AND THOSE OF YOUR SUBCONTRACTORS ARE NOT AT ISSUE HERE AND OUR DISCUSSION WILL THEREFORE BE LIMITED TO ADEQUACY OF THE NEGOTIATIONS WITH YOUR FIRM AND THE PROPRIETY OF THE REJECTION OF YOUR OFFER FOR NONCOMPLIANCE WITH THE SPECIFICATIONS REGARDING THE COMPONENT TEST PLAN.

WITH REGARD TO THE NATURE AND EXTENT OF NEGOTIATIONS TO BE CONDUCTED WITH OFFERORS, ARMED SERVICES PROCUREMENT REGULATION 3-805.1, IN IMPLEMENTATION OF 10 U.S.C. 2304(G), REQUIRES THAT "WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE," BUT IT SHOULD BE NOTED THAT DISCUSSIONS MAY BE WRITTEN AND THAT ORAL DISCUSSIONS ARE NOT REQUIRED. IN THE PRESENT CASE, YOUR INITIAL PROPOSAL WAS FOUND NOT TO MEET THE SPECIFICATION AND WRITTEN NEGOTIATION WAS UNDERTAKEN IN CONNECTION WITH THE REQUEST FOR YOUR BEST AND FINAL OFFER. YOU WERE SPECIFICALLY ADVISED IN ATTACHMENT 1 TO THE CONTRACTING OFFICER'S LETTER OF JUNE 4 THAT YOUR QUOTATION MUST BE IN ACCORDANCE WITH REQUIREMENTS OF THE SPECIFICATION, INCLUDING THE COMPONENT TEST PROGRAM. THE ATTACHMENT ALSO REQUESTED YOUR SPECIFIC REVIEW OF ELEVEN CITED PARAGRAPHS, WHICH INCLUDED THOSE PARAGRAPHS RELATING TO THE COMPONENT TEST PROGRAM. IN THESE CIRCUMSTANCES, WE ARE UNABLE TO FIND THAT SUCH LETTER DID NOT CONSTITUTE ADEQUATE NOTICE TO YOU THAT YOUR PROPOSAL WAS CONSIDERED TO BE NONRESPONSIVE TO THE SPECIFICATIONS FOR THE COMPONENT TEST PROGRAM.

IN A SIMILAR CASE, WHERE AN OFFEROR WAS ADVISED IN WRITING OF THE DEFICIENCIES IN HIS PROPOSAL BUT HIS FINAL OFFER STILL DID NOT MEET THE REQUIREMENTS, WE HELD THAT THE CONTRACTING OFFICER'S DUTY TO NEGOTIATE WAS DISCHARGED BY THE WRITTEN NEGOTIATION AND FURTHER NEGOTIATION WAS NOT REQUIRED. B-170965, MARCH 18, 1971. IN THE PRESENT CASE, WE PERCEIVE NO REASON FOR DEVIATING FROM THIS RULE. THE RECORD SHOWS THAT YOU RECOGNIZED THAT YOUR OFFER WAS INADEQUATE BUT YOU DID NOT MAKE THE NECESSARY CHANGES IN YOUR FINAL OFFER TO BRING IT INTO COMPLIANCE. THESE FACTS CLEARLY NEGATE YOUR CONTENTION THAT YOUR OFFER WAS RESPONSIVE. WHILE THE GOVERNMENT RESERVED THE RIGHT TO REOPEN NEGOTIATIONS, WE FIND NO REASONABLE BASIS FOR YOUR EXPECTATION THAT THE INADEQUACIES IN YOUR FINAL OFFER WOULD BE FURTHER NEGOTIATED AFTER THE DATE SPECIFIED IN THE LETTER OF JUNE 4 FOR THE CLOSING OF NEGOTIATIONS.

FOR THE REASONS STATED, YOUR PROTEST IS DENIED.