B-174125, MAR 28, 1972

B-174125, MAR 28, 1972

BID PROTEST - TECHNICAL COMPLIANCE - RIGHT TO NEGOTIATION DECISION DENYING THE PROTEST OF MCDONNELL DOUGLAS ELECTRONICS COMPANY (MDEC) AGAINST A DETERMINATION OF THE NAVAL TRAINING DEVICE CENTER (NTDC) THAT ITS PROPOSAL IN RESPONSE TO AN RFP FOR A PROCUREMENT OF FLIGHT SIMULATORS WAS TECHNICALLY UNACCEPTABLE. COMPLIANCE WITH THE COMPUTER CONFIGURATION REQUIREMENTS OF THE SUBJECT RFP IS A MATTER PRIMARILY FOR ADMINISTRATIVE DETERMINATION, AND IS NOT TO BE DISTURBED WHERE NO EVIDENCE EXISTS THAT THE AGENCY'S DECISION WAS CAPRICIOUS, MADE IN BAD FAITH, OR WITHOUT SUBSTANTIAL GROUNDS. B-173695, OCTOBER 27, 1971. FURTHER, EVEN WITHIN THE FLEXIBILITY OF A NEGOTIATED PROCUREMENT, THE GOVERNMENT IS NOT OBLIGED TO HOLD DISCUSSIONS WHERE ACCEPTABILITY CAN ONLY BE OBTAINED THROUGH A MAJOR REVISION OF THE INITIAL PROPOSAL. B-173522, JANUARY 25, 1972. FOR THE FOREGOING REASONS, THE PROTEST IS DENIED.

TO MATZKIN & DAY:

WE REFER TO YOUR LETTER OF FEBRUARY 26, 1972, AND PRIOR CORRESPONDENCE, ON BEHALF OF MCDONNELL DOUGLAS ELECTRONICS COMPANY (MDEC), PROTESTING AGAINST THE DETERMINATION OF THE NAVAL TRAINING DEVICE CENTER (NTDC) THAT MDEC'S PROPOSAL, SUBMITTED IN RESPONSE TO REQUEST FOR PROPOSALS (RFP) N61339-71-R-0151, WAS TECHNICALLY UNACCEPTABLE.

THE RFP COVERED THE PROCUREMENT OF FLIGHT SIMULATORS. SPECIFICATION 3.6.2 OF THE RFP REQUIRED THAT THE PERFORMANCE SIMULATION SYSTEM CONFORM TO ONE OF TWO SPECIFIED APPROACHES WHICH MAY BE IDENTIFIED AS COMPUTER SYSTEM CONFIGURATIONS. MDEC'S PROPOSAL OFFERED A CONFIGURATION NOT CONFORMING TO EITHER APPROACH SPECIFIED. THIS FAILURE TO CONFORM WAS CONSIDERED BY NTDC TO BE A CRITICAL DEFICIENCY AND APPEARS TO BE THE PRIMARY BASIS, ALTHOUGH THERE WERE OTHERS, FOR THE DETERMINATION OF TECHNICAL UNACCEPTABILITY. MOREOVER, SINCE NTDC WAS OF THE OPINION THAT AN 80-PERCENT REWRITING EFFORT WOULD BE REQUIRED IN ORDER TO MAKE THE MDEC PROPOSAL CONFORM WITH THE SPECIFICATION REQUIREMENTS, NTDC FELT THAT ANY CONFORMING PROPOSAL WOULD, IN EFFECT, BE A NEW PROPOSAL WHICH IT WAS NOT OBLIGATED TO CONSIDER.

MDEC ADMITS THAT ITS COMPUTER CONFIGURATION DOES NOT CONFORM TO THOSE SPECIFIED IN THE RFP. IT MAINTAINS, HOWEVER, THAT ITS PROPOSAL WAS NOT SO "TECHNICALLY INFERIOR" AS TO PRECLUDE NEGOTIATIONS. THE PREDICATE FOR THIS POSITION IS STATED THUSLY:

" *** WE SUBMIT THAT PROCUREMENT BY NEGOTIATION PERMITS OFFERORS TO PROPOSE DEVIATIONS TO THE SPECIFICATIONS IN THEIR INITIAL OFFER; THAT ALTHOUGH THE GOVERNMENT IS NOT OBLIGATED TO ACCEPT OR NEGOTIATE ON THAT INITIAL OFFER, IT CAN REQUIRE A 'BEST AND FINAL OFFER' BASED UPON STATED REQUIREMENTS. BUT THE GOVERNMENT CANNOT CONCLUDE THAT BECAUSE THERE WERE PROPOSED DEVIATIONS TO THE SPECIFICATIONS, IT THEREFORE DICTATED EXCLUSION FROM ANY NEGOTIATION."

WE DISAGREE. IN OUR VIEW, THE PROTEST IS TO BE RESOLVED ON THE BASIS OF TWO GENERAL ISSUES. FIRST, THE RIGHT OF THE PROCUREMENT ACTIVITY TO STATE REQUIREMENTS MEETING THE MINIMUM NEEDS OF THE GOVERNMENT. AND, SECOND, THE NECESSITY TO HOLD DISCUSSIONS WITH AN OFFEROR NOT WITHIN THE COMPETITIVE RANGE.

AS TO THE FIRST ISSUE, WE STATED IN OUR DECISION B-173522 OF JANUARY 25, 1972:

" *** MOREOVER, IT IS A WELL-ESTABLISHED PRINCIPLE THAT DRAFTING OF SPECIFICATIONS FOR GOVERNMENT NEEDS AND DETERMINING CONFORMABILITY OF OFFERED ITEMS THERETO, ESPECIALLY WHERE TECHNICAL CONSIDERATIONS ARE INVOLVED, ARE MATTERS PRIMARILY FOR ADMINISTRATIVE DETERMINATION AND WILL NOT BE DISTURBED BY THIS OFFICE UNLESS FOUND CAPRICIOUS, MADE IN BAD FAITH OR WITHOUT SUBSTANTIAL GROUNDS. B-169210, APRIL 22, 1970; B 166031, MAY 8, 1969."

GIVEN THE REASONS ENUNCIATED IN THE ADMINISTRATIVE REPORT OF NOVEMBER 16, 1971, A COPY OF WHICH WAS PROVIDED TO YOU, WE CANNOT CONCLUDE THAT THE COMPUTER CONFIGURATION REQUIREMENTS OF THE RFP WERE WITHOUT SUBSTANTIAL BASIS, CAPRICIOUS OR MADE IN BAD FAITH. CONSEQUENTLY, THESE DESIGN REQUIREMENTS MUST STAND AS VALID. SEE 51 COMP. GEN. (B-173695, OCTOBER 27, 1971).

RESOLUTION OF THE SECOND ISSUE NECESSARILY REQUIRES CONSIDERATION OF THE CONTENTION THAT A PROPOSAL NEED NOT BE FULLY RESPONSIVE TO SPECIFICATIONS IN THE CONTEXT OF A NEGOTIATED PROCUREMENT. WE HAVE CONSIDERED THIS ISSUE PREVIOUSLY AND HAVE CONCLUDED THAT "NONRESPONSIVENESS" IS ORDINARILY TO BE CONSIDERED A SUBJECT FOR NEGOTIATION. SEE B-173695, SUPRA. THEREFORE, IF AN INITIALLY UNACCEPTABLE PROPOSAL IS SUBJECT TO BEING MADE ACCEPTABLE, AN OPPORTUNITY TO SATISFY THE REQUIREMENTS OF THE GOVERNMENT SHOULD BE PERMITTED THROUGH THE USE OF DISCUSSIONS. SEE 51 COMP. GEN. (B 173522, JANUARY 25, 1972).

HOWEVER, THERE ARE SOME EXCEPTIONS. WHERE DISCUSSIONS WOULD BE USELESS, AS WHERE AN OFFEROR DOES NOT INTEND TO MAKE ITS OFFER "RESPONSIVE," NO DISCUSSIONS ARE REQUIRED. SEE B-173695, SUPRA. SIMILARLY, THERE IS NO OBLIGATION TO HOLD DISCUSSIONS IN ORDER TO IMPROVE AN OTHERWISE UNACCEPTABLE PROPOSAL WHERE ACCEPTABILITY CAN ONLY BE OBTAINED THROUGH A MAJOR REVISION OF THE PROPOSAL. SEE 51 COMP. GEN. (B-173522), SUPRA. IN THE INSTANT CASE, NTDC DETERMINED THAT MDEC'S PROPOSAL WAS TECHNICALLY UNACCEPTABLE AND NOT WITHIN THE COMPETITIVE RANGE FOR FAILURE TO CONFORM TO AN ESSENTIAL AND CLEARLY SPECIFIED REQUIREMENT OF THE RFP. MOREOVER, IT CONCLUDED THAT ONLY A MAJOR REVISION OF THE PROPOSAL WOULD MAKE IT ACCEPTABLE. IN SUCH CIRCUMSTANCES, AND KEEPING IN MIND THAT THE DETERMINATION OF COMPETITIVE RANGE IS A MATTER OF JUDGMENT, WE CANNOT SAY ON THE RECORD BEFORE US THAT MDEC'S PROPOSAL WAS WITHIN THE COMPETITIVE RANGE SO AS TO HAVE REQUIRED FURTHER DISCUSSIONS WITH THAT FIRM.

ACCORDINGLY, THE PROTEST IS DENIED.