B-174870, DEC 21, 1972, 52 COMP GEN 382

B-174870, DEC 21, 1972, 52 COMP GEN 382

CONTRACTS - NEGOTIATION - EVALUATION FACTORS - FACTORS OTHER THAN PRICE TECHNICAL ACCEPTABILITY THE RESOLUTION OF A TECHNICAL DISPUTE AS TO THE ACCEPTABILITY OF AN OFFER UNDER A REQUEST FOR PROPOSALS FOR UNINTERRUPTIBLE POWER SYSTEMS IS NOT THE FUNCTION OF THE UNITED STATES GENERAL ACCOUNTING OFFICE WHEN THE ADMINISTRATIVE JUDGMENT IS NOT ARBITRARY OR UNREASONABLE, AND THE FACT THAT THE CONTRACTOR'S PAST PERFORMANCES WERE ACCEPTABLE DOES NOT MAKE THE DETERMINATION ARBITRARY OR UNREASONABLE. FURTHERMORE, WHEN THE UNACCEPTABILITY OF A PROPOSAL INVOLVES OMITTED INFORMATION THAT RELATES TO BASIC TECHNICAL REQUIREMENTS, THE PROCURING AGENCY DOES NOT HAVE THE DUTY TO REQUEST INFORMATION OR CLARIFICATION; NOR IS THE USE OF A PREDETERMINED CUT-OFF SCORE TO DETERMINE COMPETITIVE RANGE IMPROPER WHEN A SCORE IS LOW IN COMPARISON WITH OTHERS; AND ALSO WHEN A TECHNICAL PROPOSAL IS TOTALLY UNACCEPTABLE, 10 U.S.C. 2304(G) DOES NOT REQUIRE THE CONSIDERATION OF PRICE IN DETERMINING WHETHER A PROPOSAL IS WITHIN A COMPETITIVE RANGE.

TO PAUL & GORDON, DECEMBER 21, 1972:

REFERENCE IS MADE TO THE TELEDYNE INET (TELEDYNE) TELEGRAM DATED JANUARY 24, 1972, AND SUBSEQUENT CORRESPONDENCE FROM YOUR FIRM ON BEHALF OF TELEDYNE, PROTESTING AGAINST AWARD OF CONTRACT TO ANY OTHER OFFEROR FOR UNINTERRUPTIBLE POWER SYSTEMS (UPS) UNDER REQUEST FOR PROPOSALS (RFP) WA4M -1-0622, ISSUED AUGUST 20, 1971, BY THE FEDERAL AVIATION ADMINISTRATION (FAA), UNITED STATES DEPARTMENT OF TRANSPORTATION.

THE RFP REQUIRED SUBMISSION OF TECHNICAL PROPOSALS BY OCTOBER 20, 1971, AND A SEPARATE PRICING PROPOSAL BY NOVEMBER 20, 1971. TELEDYNE'S TECHNICAL PROPOSAL WAS SUBMITTED IN A TIMELY MANNER AND A PRELIMINARY REVIEW WAS CONDUCTED TO DETERMINE IF ANY MINOR CLARIFICATIONS WERE REQUIRED PRIOR TO SUBMISSION FOR TECHNICAL EVALUATION. THE RESULTS OF THE PRELIMINARY REVIEW WERE FAVORABLE AND THE TECHNICAL PROPOSAL WAS SUBMITTED FOR EVALUATION. BY LETTER DATED DECEMBER 29, 1971, TELEDYNE WAS NOTIFIED THAT ITS PROPOSAL WAS TECHNICALLY UNACCEPTABLE DUE TO INSUFFICIENT DETAIL AND OMISSIONS IN THE MODULARITY, RELIABILITY, FUNCTIONABILITY AND VENDOR CAPABILITY SECTIONS OF THE PROPOSAL, AND THEREFORE WOULD NOT BE INCLUDED IN THE FORTHCOMING CONTRACT NEGOTIATIONS. TELEDYNE'S PROTEST TELEGRAM TO THIS OFFICE FOLLOWED. A TECHNICAL DEBRIEFING CONFERENCE WAS HELD ON JANUARY 20, 1972, AT WHICH TIME TELEDYNE WAS NOTIFIED OF THE REASONS FOR DECLARING THE TECHNICAL PROPOSAL UNACCEPTABLE, AND YOU HAVE BEEN FURNISHED WITH A REPORT ON THE TECHNICAL DEFICIENCIES FOUND WITHIN TELEDYNE'S PROPOSAL WHICH WAS SUBMITTED TO THIS OFFICE. PROTESTS WERE ALSO FILED BY AVTEL CORPORATION AND BY TMC SYSTEMS AND POWER CORPORATION, TWO OTHER FIRMS WHOSE PROPOSALS WERE FOUND TECHNICALLY UNACCEPTABLE UNDER THIS PROCUREMENT. FAA, CITING THE URGENCY OF ITS REQUIREMENTS, AWARDED A CONTRACT TO AIRESEARCH DIVISION OF GARRETT CORPORATION ON JUNE 9, 1972, WHILE THESE PROTESTS WERE PENDING. WE DENIED THE AVTEL AND TMC PROTESTS IN B-174870(1) AND (2), DATED JULY 3, 1972.

YOU ALLEGE THAT TELEDYNE SUBMITTED ENOUGH TECHNICAL DATA TO BE IN THE COMPETITIVE RANGE, SO AS TO REQUIRE FAA TO CONDUCT NEGOTIATIONS WITH TELEDYNE AND THAT THE AGENCY FAILED TO TAKE PRICE INTO CONSIDERATION IN DETERMINING IF THE PROPOSAL WAS WITHIN THE COMPETITIVE RANGE. OUR DECISIONS PUBLISHED AT 45 COMP. GEN. 417(1966) AND AT 47 COMP. GEN. 29(1967) ARE CITED IN THIS REGARD. IN ADDITION, YOU ASSERT THAT TELEDYNE SHOULD HAVE BEEN ALLOWED TO CORRECT ANY DEFICIENCIES IN ITS PROPOSAL AND THAT TELEDYNE WAS FOUND TO BE OUTSIDE THE COMPETITIVE RANGE ON THE BASIS OF AN IMPROPER PREDETERMINED SCORING METHOD.

AS A RESULT OF THE EVALUATION OF THE TECHNICAL PROPOSALS SUBMITTED, THREE FIRMS WERE CONSIDERED TO BE ACCEPTABLE, WHILE THREE OTHER FIRMS, INCLUDING TELEDYNE, WERE RATED UNACCEPTABLE. FAA HAS REPORTED TO US THAT THE TELEDYNE PROPOSAL DID NOT MEET THE REQUIREMENT THAT THE MODULE ISOLATE AND PROTECT ITSELF IN THE EVENT OF AN INTERNAL FAILURE. ACCORDING TO THE FAA, TELEDYNE'S MODULE WILL ONLY ISOLATE AND PROTECT THE CIRCUITRY BETWEEN THE LINE BUS AND THE SCR; IT WILL NOT ISOLATE AND PROTECT THE CIRCUITRY BETWEEN THE SCR AND THE LOAD BUS. FAA ALSO REPORTS THAT THE TELEDYNE PROPOSAL DEVIATES FROM THE SPECIFICATION REQUIREMENT THAT THE UPS SHALL BE CAPABLE OF CLEARING A DISTRIBUTION SYSTEM FAULT AND RETURNING CRITICAL VOLTAGE TO AT LEAST 90 PERCENT IN LESS THAN 8 MILLISECONDS. THE TELEDYNE DISCUSSION OF FAULT-CLEARING CHARACTERISTICS (PAGE 3-9 OF ITS PROPOSAL) STATES THAT THE VOLTAGE DIPS TO 30 PERCENT FOR ONE-HALF CYCLE AND RECOVERS TO 90 PERCENT "BY NEXT HALF CYCLE," AND FAA INTERPRETED THIS TO MEAN THAT UP TO ONE FULL CYCLE (16.7 MILLISECONDS) WOULD BE REQUIRED TO RETURN THE VOLTAGE TO 90 PERCENT AT THE DISTRIBUTION POINT. ADDITIONALLY, THE FAA REPORTS THERE ARE SEVERAL "SUSPECT AREAS" WHICH COULD NOT BE EVALUATED DUE TO A LACK OF A DETAILED PRESENTATION. FOR EXAMPLE, THE FAA POINTS OUT THAT TELEDYNE DID NOT DEMONSTRATE HOW FUTURE UNITS COULD BE ADDED WITHOUT TURNING OFF THE ENTIRE OPERATING SYSTEM, AND THE REQUIREMENT THAT CONNECTING CABLES ENTER AND EXIT FROM THE BOTTOM OF UPS CABINET IS NOT MET IN THAT TELEDYNE'S PROPOSAL ONLY MENTIONS REAR ENTRANCE CABLES AND THE PHOTO OF THE TELEDYNE SYSTEM ONLY SHOWS TOP CONNECTIONS.

IN REPLY, TELEDYNE STATES THAT IT EITHER MEETS THE TECHNICAL REQUIREMENTS AND/OR DOES NOT TAKE EXCEPTION TO THE REQUIREMENTS. IT ALLEGES THAT ITS SYSTEM HAS BEEN PROVEN TO BE RELIABLE AND CAPABLE OF MEETING THE FAA STANDARDS ON MODULE ISOLATION, MODULE PROTECTION AND FAULT CLEARING. ALSO CLAIMS THAT IT WAS FOUND TO BE WITHIN THE COMPETITIVE RANGE ON TWO PRIOR FAA PROCUREMENTS FOR "VIRTUALLY IDENTICAL" EQUIPMENT, THUS MAKING SUSPECT THE DETERMINATION IN THIS CASE THAT ITS PROPOSAL WAS SO TECHNICALLY DEFICIENT SO AS NOT TO BE IN THE COMPETITIVE RANGE.

MUCH OF THE DISAGREEMENT BETWEEN FAA AND TELEDYNE IN THESE AREAS TURNS ON TELEDYNE'S PROPOSED TECHNIQUE OF USING THE INVERTER POWER SILICON CONTROLLED RECTIFIERS (SCR) AS A SOLID-STATE DISCONNECT SWITCH TO ISOLATE FAILURES AND PROTECT THE SYSTEM. IT IS FAA'S VIEW THAT A SEPARATE HIGH SPEED DISCONNECT DEVICE IS NECESSARY RATHER THAN THE "RELATIVELY SLOW GOVERNMENT FURNISHED CIRCUIT BREAKERS NOT INTENDED FOR THIS PROPOSAL" WHICH TELEDYNE PROPOSES TO RELY UPON. ON THE OTHER HAND, TELEDYNE ARGUES THAT ITS PROPOSED TECHNIQUE IS A "SUPERIOR AND MORE RELIABLE METHOD AS COMPARED TO USE OF A SEPARATE SOLID-STATE DISCONNECT SWITCH." FOR EXAMPLE, WITH REGARD TO THE ISSUE OF MODULE ISOLATION TELEDYNE STATES THE RESPECTIVE POSITIONS OF THE PARTIES AS FOLLOWS:

FAA CONTENDS THAT A SOLID-STATE SWITCH MUST BE ELECTRICALLY POSITIONED DIRECTLY AT THE OUTPUT OF A MODULE AND IMPLIES THAT THIS IS A SPECIFICATION REQUIREMENT. INET POINTS OUT THAT THIS IS NOT A SPECIFICATION REQUIREMENT AND CONTENDS THAT THE SWITCH POSITION SHOULD NOT BE AT THE OUTPUT TERMINALS, BUT RATHER AHEAD OF THE FILTER AND OUTPUT POWER TRANSFORMER.

THE INET POSITION IS SUPPORTED BY MATHEMATICAL FAILURE MODE ANALYSIS WHICH DEMONSTRATES THAT THERE IS A LOWER OVERALL FAILURE RATE FOR THE UPS WITH THE INET PLACEMENT AND THEREFORE A HIGHER MTBF (MEAN TIME BETWEEN FAILURE) FOR THE UPS. INET'S POSITION IS LIKEWISE PROVEN BY THE COMPARATIVE MUCH HIGHER RELIABILITY OF INET UPSS IN THE FIELD THAN THE FAA SPONSORED AIRESEARCH UPS DESIGN. FOR EXAMPLE, THE NEW YORK STOCK EXCHANGE UPS USED AS THE BASIS FOR TELEDYNE INET'S PROPOSAL HAS OPERATED CONTINUOUSLY FOR EIGHTEEN (18) MONTHS WITHOUT A SINGLE SYSTEM FAILURE; WHEREAS THE AIRESEARCH UPSS AT ISLIP AND KANSAS CTY HAVE HAD NUMEROUS FAILURES AND HAVE DROPPED THE FAA CRITICAL LOAD A NUMBER OF TIMES.

IT IS NOT OUR FUNCTION TO RESOLVE TECHNICAL DISPUTES OF THIS NATURE. THE DETERMINATION OF WHETHER A PROPOSAL IS TECHNICALLY ACCEPTABLE IS A MATTER OF ADMINISTRATIVE JUDGMENT, AND WE WILL NOT DISTURB THAT JUDGMENT ABSENT A CLEAR SHOWING THAT THE AGENCY ACTED ARBITRARILY OR UNREASONABLY. 48 COMP. GEN. 314(1968). ALTHOUGH THE RECORD CONTAINS CORRESPONDENCE NOTING TELEDYNE'S ACCEPTABLE PERFORMANCE FOR VARIOUS NAVAL PROCUREMENTS, WE CANNOT CONCLUDE THAT THE FAA'S JUDGMENT AS TO THE UNACCEPTABILITY OF THE TELEDYNE PROPOSED SYSTEM FOR FAA'S PURPOSES IS ARBITRARY OR UNREASONABLE.

IT IS YOUR CONTENTION THAT EVEN IF TELEDYNE'S PROPOSAL WAS DEFICIENT, FAA SHOULD HAVE ALLOWED TELEDYNE TO CORRECT ITS PROPOSAL. YOU POINT OUT THAT AVTEL CORPORATION WAS REQUESTED TO SUPPLY INFORMATION TO CLARIFY ITS PROPOSAL AND YOU CONSIDER THIS TO BE UNFAIR TREATMENT. YOU CITE B-173716, DECEMBER 7, 1971, AS STANDING FOR THE PROPOSITION THAT THE PROCURING AGENCY HAS A DUTY TO REQUEST OMITTED INFORMATION FROM AN OFFEROR WHEN THAT OFFEROR IS EXPERIENCED IN PRODUCING THE ITEM TO BE PURCHASED, AND ASSERT THAT THIS DUTY WAS BREACHED IN THE INSTANT CASE.

WE HAVE HELD THAT A PROPOSAL MUST BE CONSIDERED TO BE WITHIN THE COMPETITIVE RANGE SO AS TO REQUIRE NEGOTIATIONS UNLESS IT IS SO TECHNICALLY INFERIOR THAT MEANINGFUL NEGOTIATIONS ARE PRECLUDED. 48 COMP. GEN. 314, SUPRA. HOWEVER, IN THAT SAME CASE, WE ALSO RECOGNIZED THAT THE DETERMINATION OF COMPETITIVE RANGE, PARTICULARLY WITH RESPECT TO TECHNICAL CONSIDERATIONS, IS A MATTER OF ADMINISTRATIVE DISCRETION WHICH WILL NOT BE DISTURBED ABSENT A CLEAR SHOWING THAT THE DETERMINATION WAS ARBITRARY OR CAPRICIOUS.

IN THE PRESENT SITUATION, TELEDYNE'S PROPOSAL WAS FOUND TO BE TECHNICALLY UNACCEPTABLE FOR A NUMBER OF REASONS, SOME OF WHICH INVOLVED THE OMISSION OF CERTAIN INFORMATION FROM THE PROPOSAL. IN FAA'S VIEW, THESE OMISSIONS WERE RELATED TO BASIC REQUIREMENTS OF THE SYSTEM TO BE PROCURED AND WARRANTED REJECTION OF TELEDYNE'S PROPOSAL. UNDER THESE CIRCUMSTANCES, YOUR RELIANCE ON B-173716, SUPRA, IS MISPLACED, SINCE IN THAT CASE WE FOUND THAT THE REJECTED PROPOSAL WAS MERELY "INFORMATIONALLY DEFICIENT" AND NOT TECHNICALLY UNACCEPTABLE. SEE B-169908, JULY 31, 1970.

FURTHERMORE, WE DO NOT BELIEVE THAT A DUTY SHOULD BE IMPOSED ON THE PROCURING ACTIVITY TO REQUEST INFORMATION OR CLARIFICATIONS REGARDING MATERIAL OMITTED FROM A PROPOSAL WHEN THAT OMISSION IS RELATED TO A BASIC REQUIREMENT. B-174056, JUNE 1, 1972.

WE BELIEVE THE CASES YOU CITE ARE EASILY DISTINGUISHABLE FROM THE INSTANT SITUATION. IN 45 COMP. GEN. 417(1966), THE AGENCY ELECTED TO CONDUCT NEGOTIATIONS ONLY WITH ONE OFFEROR, WHO WAS DETERMINED TO BE TECHNICALLY SUPERIOR TO THE OTHER OFFEROR. WE CONCLUDED THAT IT WAS IMPROPER TO EXCLUDE THE OTHER OFFEROR FROM NEGOTIATIONS BASED ON A DETERMINATION THAT THE OFFEROR'S PROPOSAL WAS MERELY TECHNICALLY INFERIOR AND NOT TECHNICALLY UNACCEPTABLE. IN 47 COMP. GEN. 29(1967) THE PROTESTANT (HONEYWELL) WAS EXCLUDED FROM NEGOTIATIONS BECAUSE IT FAILED A "BENCHMARK" OR LIVE TEST DEMONSTRATION. SINCE THERE WAS A SUBSTANTIAL PRICE SAVINGS BETWEEN THE HONEYWELL PROPOSAL AND THE ONLY PROPOSAL FOUND TO BE IN THE COMPETITIVE RANGE AND IT APPEARED THAT HONEYWELL WAS CAPABLE OF PASSING THE BENCHMARK TEST WITHIN A RELATIVELY SHORT TIME WE HELD THAT ITS PROPOSAL SHOULD NOT BE DEEMED TECHNICALLY UNACCEPTABLE MERELY BECAUSE OF FAILING THE BENCHMARK TEST. HERE, OF COURSE, THERE WAS AN ADMINISTRATIVE DETERMINATION THAT THE TELEDYNE PROPOSAL WAS TECHNICALLY UNACCEPTABLE AS COMPARED TO THE THREE PROPOSALS FOUND TO BE ACCEPTABLE. WHILE YOU CONTEND THAT THE TELEDYNE PROPOSAL OFFERS A SUBSTANTIAL PRICE SAVINGS TO THE GOVERNMENT, WE ARE UNABLE TO CONCLUDE THAT THE TELEDYNE PROPOSAL WAS READILY CAPABLE OF BEING MADE TECHNICALLY ACCEPTABLE.

CONCERNING THE FAA REQUEST FOR ADDITIONAL INFORMATION FROM AVTEL, OUR REVIEW OF THE RECORD INDICATES THAT THE INFORMATION REQUESTED, PURSUANT TO THE PRELIMINARY REVIEW AND NOT DURING OR AFTER THE TECHNICAL EVALUATION, WAS FOR THE PURPOSE OF CLARIFYING AVTEL'S EXPERIENCE RECORD RATHER THAN SUBMISSION OF TECHNICAL DATA (AVTEL HAD PREVIOUSLY SUBMITTED EXPERIENCE INFORMATION BUT THE SUBMISSION WAS VAGUE). IN ANY EVENT, AVTEL'S PROPOSAL WAS ALSO DECLARED TECHNICALLY UNACCEPTABLE.

YOU URGE THAT IN THE EVALUATION OF THE TECHNICAL PROPOSAL A PREDETERMINED SCORE FOR UNACCEPTABILITY WAS EMPLOYED RATHER THAN MAKING A DETERMINATION BASED ON THE ACTUAL ARRAY OF SCORES ACHIEVED. THE TECHNICAL EVALUATION CRITERIA WAS DESCRIBED IN EXHIBIT B TO THE RFP, WHICH STATES THAT THERE ARE TWO EQUALLY WEIGHTED CATEGORIES, SYSTEM DESIGN AND VENDOR CAPABILITY, AND EACH OF THESE CATEGORIES WOULD BE SUBDIVIDED INTO THREE SUBCATEGORIES FOR A TOTAL OF SIX CATEGORIES OF EQUAL IMPORTANCE. THE EVALUATION PROCESS INCLUDED A "NORMALIZATION" VALUE SYSTEM WHEREBY THE HIGHEST RATED PROPOSAL WAS EQUATED TO 100 POINTS AND THE REMAINING PROPOSALS WERE THEN CONVERTED TO A NORMALIZED POINT RATING BY FORMULA. THE FAA DECIDED THAT A PROPOSAL SHOULD OBTAIN A RATING OF AT LEAST 85 POINTS IN ORDER TO BE CONSIDERED TECHNICALLY ACCEPTABLE.

TELEDYNE RECEIVED A SCORE WHICH FELL WELL BELOW THE ACCEPTABLE CUTOFF POINT OF 84. WHILE WE HAVE OBJECTED TO THE USE OF A PREDETERMINED CUTOFF SCORE TO DETERMINE COMPETITIVE RANGE, 50 COMP. GEN. 59(1970), IN VIEW OF TELEDYNE'S LOW SCORE IN COMPARISON TO THE ARRAY OF SCORES ACHIEVED BY THE OTHER OFFERORS, WE DO NOT FIND THAT THE AGENCY'S DECISION TO EXCLUDE TELEDYNE FROM NEGOTIATIONS WAS IMPROPER.

YOU ALSO CLAIM THAT THE DETERMINATION THAT TELEDYNE WAS NOT WITHIN THE COMPETITIVE RANGE WAS IMPROPER BECAUSE PRICE WAS NOT TAKEN INTO ACCOUNT. YOU ASSERT THAT CONSIDERATION OF PRICE IS REQUIRED BY 10 U.S.C. 2304(G), WHICH STATES THAT "PROPOSALS, INCLUDING PRICE, SHALL BE SOLICITED FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES ***" AND REQUIRES NEGOTIATIONS TO BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS "WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED." YOU POINT OUT THAT WHILE 10 U.S.C. 2304(G) APPLIES TO MILITARY PROCUREMENTS, WE HAVE TREATED ITS REQUIREMENTS AS BEING APPLICABLE TO CIVILIAN PROCUREMENTS AS WELL. 50 COMP. GEN. 110(1970). IN SUPPORT OF YOUR ASSERTION, YOU REFER TO THE LEGISLATIVE HISTORY OF THE DEPARTMENT OF DEFENSE APPROPRIATION AUTHORIZATION ACT OF 1969, SEPTEMBER 20, 1968, PUBLIC LAW 90-500, TITLE IV, SEC. 405, 82 STAT. 851, 10 U.S.C. 2304, WHICH ADDED THE REQUIREMENT THAT PRICE BE INCLUDED IN ALL PROPOSALS SOLICITED FROM QUALIFIED SOURCES. YOU ALSO HAVE FURNISHED US WITH A LETTER FROM CONGRESSMAN RICHARD H. ICHORD WHO, AS CHAIRMAN OF THE SPECIAL SUBCOMMITTEE ON THE M-16 RIFLE PROGRAM, WAS DIRECTLY INVOLVED WITH THE 1968 AMENDMENT. CONGRESSMAN ICHORD STATES HIS BELIEF THAT THE PURPOSE OF THE AMENDMENT WAS TO PREVENT A DETERMINATION OF WHETHER OR NOT A FIRM WAS WITHIN OR WITHOUT A COMPETITIVE RANGE WITHOUT CONSIDERATION BEING GIVEN TO PRICE. THE WORDS "INCLUDING PRICE" WERE ADDED TO 10 U.S.C. 2304(G) IN RESPONSE TO AN ARMY PROCUREMENT OF M-16 RIFLES IN WHICH AWARDS WERE MADE TO TWO OFFERORS ON THE BASIS OF THE TECHNICAL SUPERIORITY OF THEIR PROPOSALS, WITHOUT REGARD TO PRICE. THE HISTORY OF THAT PROCUREMENT REVEALS THAT THE ARMY ORIGINALLY EVALUATED FOUR PROPOSALS AS TECHNICALLY ACCEPTABLE, BUT SUBSEQUENTLY DETERMINED THAT IT WOULD BE BEST ASSURED OF HAVING ITS NEEDS SATISFIED BY ACCEPTING THE TWO HIGHEST RATED TECHNICAL PROPOSALS, REGARDLESS OF PRICE. THE ARMY THEN AWARDED LETTER CONTRACTS TO THOSE OFFERORS WITHOUT LOOKING AT THE PRICE PROPOSALS OF THE OTHER TWO OFFERORS. BECAUSE THE CONTRACT PRICES WERE SIGNIFICANTLY HIGHER THAN THE PRICE PROPOSALS OF THE UNSUCCESSFUL OFFERORS, CONCERN WAS EXPRESSED IN CONGRESS THAT PUBLIC FUNDS WERE UNNECESSARILY EXPENDED, AND LEGISLATION WAS INTRODUCED "FOR THE EXPRESS PURPOSE OF PROHIBITING IN THE FUTURE THE WASTE OF PUBLIC FUNDS WHICH OCCURRED *** IN THE M-16 CONTRACT AWARDS." 114 CONG. REC. 20736. THIS WAS MORE FULLY EXPLAINED AS FOLLOWS:

THE PURPOSE OF THIS SECTION IS TO CLOSE THE LOOPHOLE WHICH ALLOWED THE ARMY TO MAKE THE RECENT AWARDS FOR THE PROCUREMENT OF M-16 RIFLES WITHOUT CONSIDERING PRICE PROPOSALS FROM ALL QUALIFIED BIDDERS. IT WOULD INSURE THAT ON FUTURE NEGOTIATED PROCUREMENTS OF THIS TYPE MENTIONED THE MILITARY DEPARTMENTS WILL HAVE TO CONSIDER AT LEAST CEILING PRICES PROPOSED BY ALL QUALIFIED BIDDERS. H. REPT. NO. 1869, 90TH CONGRESS, 2D SESS. 10.

ALTHOUGH WE RESPECT THE VIEWS OF CONGRESSMAN ICHORD AND RECOGNIZE THAT THERE IS SOME SUPPORT FOR THE POSITION YOU TAKE, WE DO NOT BELIEVE THAT 10 U.S.C. 2304(G) REQUIRES THAT PRICE MUST BE CONSIDERED IN ALL INSTANCES IN DETERMINING WHAT PROPOSALS ARE IN A COMPETITIVE RANGE. TO ACCORD SUCH AN INTERPRETATION TO THE LAW WOULD PLACE PROCUREMENT OFFICIALS IN THE UNREASONABLE POSITION OF HAVING TO CONSIDER THE PRICE PROPOSALS OF ALL OFFERORS, NO MATTER HOW DEFICIENT OR UNACCEPTABLE THE ACCOMPANYING TECHNICAL PROPOSALS MIGHT BE. WE DO NOT BELIEVE THAT CONGRESS INTENDED SUCH A RESULT. RATHER, IT SEEMS TO US THAT CONGRESS WANTED TO INSURE THAT THE PRICES PROPOSED BY QUALIFIED OFFERORS WHO SUBMIT ACCEPTABLE PROPOSALS WOULD BE CONSIDERED PRIOR TO THE MAKING OF AWARDS TO HIGHER PRICED OFFERORS ON THE BASIS OF TECHNICAL CONSIDERATIONS ALONE.

WE THINK THIS VIEW IS SUPPORTED BY OUR PREVIOUS DECISIONS, INCLUDING THOSE YOU CITE IN YOUR LETTERS. WE HAVE STATED, BOTH BEFORE AND AFTER ENACTMENT OF THE 1968 LAW, THAT COMPETITIVE RANGE ENCOMPASSES BOTH PRICE AND TECHNICAL CONSIDERATIONS, 45 COMP. GEN. 417(1966); 47 ID. 29(1967); 50 ID. 1(1970), AND THAT THE NEGOTIATION OF A CONTRACT WITHOUT PRICE COMPETITION ON THE BASIS THAT A PARTICULAR OFFEROR WOULD FURNISH SERVICES OF A HIGHER QUALITY THAN ANY OTHER OFFEROR WAS CONTRARY TO 10 U.S.C. 2304(G). 50 COMP. GEN. 110(1970). OUR CONCERN IN THESE CASES STEMMED FROM THE ABSENCE OF EITHER MEANINGFUL OR ACTUAL PRICE COMPETITION AS REQUIRED BY STATUTE, AND WE OBJECTED TO THE ELIMINATION FROM COMPETITION OF ALL BUT ONE OFFEROR WITHOUT APPROPRIATE CONSIDERATION OF PRICE.

THESE DECISIONS DO NOT INDICATE, HOWEVER, THAT PRICE MUST BE CONSIDERED IN ALL INSTANCES IN DETERMINING COMPETITIVE RANGE. OUR STATEMENTS THAT BOTH PRICE AND TECHNICAL CONSIDERATIONS ARE ENCOMPASSED IN "COMPETITIVE RANGE" MEAN THAT IN APPROPRIATE CASES EITHER FACTOR CAN BE DETERMINATIVE OF WHETHER AN OFFEROR IS IN A COMPETITIVE RANGE, AND WE HAVE FREQUENTLY RECOGNIZED THAT PRICE NEED NOT BE CONSIDERED WHEN A TOTALLY UNACCEPTABLE TECHNICAL PROPOSAL IS SUBMITTED. B-168190, FEBRUARY 24, 1970; B-169908, JULY 31, 1970; B-160671, AUGUST 31, 1970; B-170317, FEBRUARY 2, 1971; SEE, ALSO, 49 COMP. GEN. 309(1969) AND 50 ID. 565(1971). ACCORDINGLY, WE RESPECTFULLY DISAGREE WITH YOUR POSITION ON THIS POINT.

FINALLY, YOU STATE THAT THE PROCURING ACTIVITY DID NOT ADEQUATELY INFORM YOU OF THE EVALUATION CRITERIA AND RELATED WEIGHT THEREOF. YOU CITE 50 COMP. GEN. 59(1970), WHERE THIS OFFICE STATED THAT SOUND PROCUREMENT POLICY DICTATES THAT OFFERORS BE INFORMED OF ALL EVALUATION FACTORS AND OF THE RELATIVE IMPORTANCE OF EACH FACTOR. WE BELIEVE THAT THE INFORMATION PROVIDED IN EXHIBIT B TO THE RFP WAS SUFFICIENTLY CLEAR AND ADEQUATE TO INFORM TELEDYNE OF THE MAJOR EVALUATION FACTORS AND WEIGHTS THEREOF.

FOR THE REASONS STATED ABOVE, THE TELEDYNE PROTEST MUST BE DENIED.