B-175521, JUL 17, 1972

B-175521, JUL 17, 1972

BID PROTEST - TWO-STEP PROCUREMENT - INDEFINITE SPECIFICATION DECISION DENYING THE PROTEST OF CONTINENTAL ELECTRONICS MANUFACTURING COMPANY AGAINST THE REJECTION BY HEADQUARTERS, SACRAMENTO AIR MATERIEL AREA, MCCLELLAN AIR FORCE BASE, CALIF., OF ITS TECHNICAL PROPOSAL SUBMITTED UNDER A TWO-STEP PROCUREMENT FOR MODIFICATION KITS FOR CERTAIN RADAR SETS. AMONG OTHER THINGS, PROTESTANT ALLEGES THE SPECIFICATIONS WERE "VAGUE." ONE OF THE FIVE CONDITIONS FOR USE OF A TWO-STEP PROCUREMENT (SEE ASPR 2- 502(A)(1)) IS THAT THE SPECIFICATIONS ARE NOT CAPABLE OF DEFINITE OR COMPLETE ARTICULATION. AN ADMINISTRATIVE DETERMINATION TO USE A TWO-STEP PROCUREMENT IN SUCH A CASE IS WITHIN THE SOUND DISCRETION OF THE PROCURING AGENCY. AS THE DETERMINATION HERE IS SUPPORTED BY THE FACTS, THE PROTEST IS DENIED.

TO CONTINENTAL ELECTRONICS MANUFACTURING CO.:

GENTLEMEN:

REFERENCE IS MADE TO YOUR LETTER OF MAY 15, 1972, AND PRIOR CORRESPONDENCE, PROTESTING THE REJECTION OF YOUR TECHNICAL PROPOSAL SUBMITTED IN RESPONSE TO LETTER REQUEST FOR TECHNICAL PROPOSAL (LRFTP) F04606-72-R-0086, AS AMENDED, UNDER THE TWO-STEP ADVERTISED PROCUREMENT PROCEDURES FOR 2 EACH MODIFICATION KITS "S" BAND INSTALLATION IN THE AN/MPS-19 RADAR SETS AND 4 EACH MODIFICATION KITS "C" BAND INSTALLATION IN AN/MPS-19 RADAR.

ON AUGUST 10, 1971, HEADQUARTERS, SACRAMENTO AIR MATERIEL AREA, MCCLELLAN AIR FORCE BASE, CALIFORNIA, ISSUED THE SUBJECT LRFTP ADVISING OFFERORS THAT THE PROCUREMENT OF THE AN/MPS-19 MODIFICATION WOULD BE ACCOMPLISHED IN TWO PHASES: "(1) SUBMISSION AND EVALUATION OF TECHNICAL PROPOSALS AND (2) ISSUANCE OF INVITATION FOR BIDS FOR PRICING ONLY TO THOSE FIRMS HAVING SUBMITTED ACCEPTABLE TECHNICAL PROPOSALS." THE REQUEST FOR TECHNICAL PROPOSALS ALSO ADVISED OFFERORS TO SUBMIT TECHNICAL PROPOSALS IN SUCH FORMAT AND DETAIL AS WOULD ENABLE THE AIR FORCE TO MAKE A THOROUGH EVALUATION THEREOF AND ARRIVE AT A SOUND CONCLUSION AS TO PROPOSAL ACCEPTABILITY IN TERMS OF THE SPECIFICATION REQUIREMENTS. THE LRFTP FURTHER CAUTIONED THAT ALTHOUGH THE GOVERNMENT RESERVED THE RIGHT TO DISCUSS PROPOSALS WITH OFFERORS SUBMITTING MARGINAL TECHNICAL PROPOSALS WHICH MIGHT BECOME ACCEPTABLE WITH MINOR CORRECTIONS, IT RESERVED THE RIGHT TO REJECT WITHOUT DISCUSSION PROPOSALS DETERMINED TO BE TECHNICALLY UNACCEPTABLE.

THE ORIGINAL CLOSING DATE FOR RECEIPT OF PROPOSALS WAS SEPTEMBER 10, 1971. AMENDMENT NO. 9 DATED OCTOBER 22, 1971, PERMITTED THE SUBMISSION OF ALTERNATE PROPOSALS AND CHANGED THE SUBMISSION DATE FROM OCTOBER 26, 1971, TO NOVEMBER 9, 1971. THE LRFTP, AS AMENDED, PROVIDED FOR A BIDDER'S CONFERENCE TO BE HELD ON SEPTEMBER 8, 1971. PROSPECTIVE PROPOSERS ALSO WERE ADVISED THAT THE INITIAL TECHNICAL PROPOSAL SUBMITTED IN RESPONSE TO THE LRFTP SHOULD BE FIRM AND FINAL AND NOT SUBJECT TO AMENDMENT UNLESS SPECIFICALLY REQUESTED BY THE CONTRACTING OFFICER.

A TOTAL OF 12 PROPOSALS WAS RECEIVED. EACH OF THE PROPOSALS WAS SUBMITTED TO GOVERNMENT ENGINEERING EXPERTS FOR THEIR INDEPENDENT EXAMINATION. THESE ENGINEERS DETERMINED THAT OF THE PROPOSALS SUBMITTED, THREE WERE UNACCEPTABLE INCLUDING THE CONTINENTAL PROPOSAL, AND NINE WERE CONSIDERED MARGINAL AND WERE SOLICITED FOR CLARIFICATION. AS TO THE NINE OFFERORS WHO SUBMITTED MARGINAL PROPOSALS, SIX ADEQUATELY CLARIFIED THEIR PROPOSALS IN THE OPINION OF THE EVALUATORS, AND AS A RESULT THEREOF WERE FOUND TO BE ACCEPTABLE.

IT IS REPORTED THAT THE SECOND STEP INVITATION FOR BIDS (IFB) WAS ISSUED ON OR ABOUT APRIL 14, 1972; THAT COPIES OF THE IFB WERE SENT TO THE OFFERORS WHO HAD SUBMITTED ACCEPTABLE PROPOSALS; THAT THE IFB PROVIDED FOR THE RECEIPT OF BIDS BY MAY 19, 1972; AND THAT THE OPENING OF BIDS WILL BE DELAYED PENDING A DECISION BY OUR OFFICE ON YOUR PROTEST.

IN A LETTER DATED FEBRUARY 24, 1972, THE CONTRACTING OFFICER ADVISED YOUR FIRM THAT ITS TECHNICAL PROPOSAL HAD BEEN FOUND TO BE UNACCEPTABLE FOR THE FOLLOWING REASONS:

"PROPOSED DESIGN OF THE ANTENNA SYSTEM FAILS TO SATISFY THE REQUIREMENT FOR CONTINUOUS AZIMUTH COVERAGE IN AREA SURVEILLANCE AS EXEMPLIFIED BY THE NORMAL APPLICATION OF THE AT-352 ANTENNA. TO AVOID USE OF A LARGE, BULKY, AND HEAVY MULTICHANNEL RF ROTARY COUPLER, THE FIRM PROPOSES TO USE A CABLEWRAP SCHEME WHICH RESTRICTS AZIMUTHAL ROTATION OF THE ANTENNA TO PLUS OR MINUS 300 DEGREES. THIS IS UNACCEPTABLE. THE NORMAL APPLICATION OF THE AT-352 ANTENNA PROVIDES CONTINUOUS, UNINTERRUPTED AZIMUTHAL COVERAGE. VERTICAL COVERAGE OF THE CONTINENTAL IFB SURVEILLANCE SCHEME IS ADEQUATE.

"CONTINENTAL PROPOSES TO USE TWO VANS AND TO HOUSE THE TRANSMITTING EQUIPMENT IN ONE VAN, ROUTING THE RF ENERGY TO THE OTHER VAN WHICH HOUSES THE OPERATOR POSITIONS AND WHICH HAS THE ANTENNA SYSTEM MOUNTED ON ITS ROOF. THE USE OF TWO VANS IS ACCEPTABLE, BUT THE FIRM PROPOSES TO ROUTE THE RF ENERGY VIA LONG WAVEGUIDE RUNS BETWEEN THE TWO VANS. THIS IS CONSIDERED TO BE IN CONFLICT WITH OUR MOBILITY AND TURNAROUND REQUIREMENT AND OUR CONSTRUCTION CLAUSE. THE BASIS OF THE CONFLICT IS THAT THE WAVEGUIDE SECTIONS CANNOT BE EASILY TRANSPORTED WITHOUT DISMANTLING, NOR CAN THEY BE EASILY INSTALLED WITH THE VANS POSITIONED ON UNPREPARED ROUGH OR IRREGULAR TERRAIN. WE DO NOT ACKNOWLEDGE ANY POSSIBILITY THAN THE MOVING, HANDLING, AND REPETITIVE INSTALLATION OF LONG RIGID WAVEGUIDE RUNS BETWEEN VANS IS PRACTICAL UNDER TYPICAL FIELD USE CONDITIONS."

YOU ALSO WERE ADVISED THAT ANY REVISION OF THE CONTINENTAL PROPOSAL WOULD NOT BE CONSIDERED BY THE AIR FORCE.

BY TELEGRAM OF MARCH 8, 1972, YOU ADVISED THE CONTRACTING OFFICER THAT YOU DID NOT AGREE WITH THE REASONS GIVEN BY HIM FOR REJECTION OF YOUR TECHNICAL PROPOSAL AND THAT YOU FELT THAT YOUR FIRM'S PROPOSAL DID MEET THE REQUIREMENTS OF THE AIR FORCE'S ENGINEERING SPECIFICATIONS. THE REASONS GIVEN BY YOU IN YOUR TELEGRAM WERE EVALUATED BY THE ENGINEERING STAFF AND BY TELEGRAM DATED MARCH 14, 1972, THE CONTRACTING OFFICER ADVISED YOUR FIRM THAT THE POSITION OF THE ENGINEERING STAFF WAS UNCHANGED AND THAT YOUR TECHNICAL PROPOSAL WAS STILL UNACCEPTABLE. THEREAFTER, A MEETING WAS HELD ON MARCH 17, 1972, TO FURTHER DISCUSS THE DETAILS OF THE UNACCEPTABILITY OF YOUR PROPOSAL WITH AIR FORCE ENGINEERS, TECHNICAL AND PROCUREMENT PERSONNEL. UNFORTUNATELY, THE AREAS OF DISAGREEMENT WERE NOT RESOLVED AND THE AIR FORCE CONSIDERED THE PROPOSAL OF YOUR FIRM, AS CLARIFIED, TO BE UNACCEPTABLE.

YOU MAINTAIN THAT THE REJECTION OF YOUR PROPOSAL BY THE AIR FORCE WAS BASED UPON PRECONCEIVED IDEAS AND/OR EXPERIENCE NOT SHOWN IN THE SPECIFICATIONS AND THAT WHILE YOUR PROPOSAL MAY NOT BE IN ACCORD WITH THESE PRECONCEIVED NOTIONS, IT IS RESPONSIVE TO THE REQUIREMENTS OF THE AIR FORCE AS SET FORTH IN THE SPECIFICATIONS.

SPECIFICALLY, YOU CONTEND THAT THE LRFTP SPECIFICATIONS DO NOT REQUIRE CONTINUOUS 360 DEGS AZIMUTH ROTATION NOR DO THEY PRECLUDE THE USE OF RIGID WAVEGUIDE WITH FLEXIBLE SECTIONS SO LONG AS THIS METHOD OF CONNECTION MEETS THE TURNAROUND AND CONSTRUCTION REQUIREMENT OF THE INVITATION. YOU MAINTAIN THAT THE CONTINENTAL APPROACH IN THESE TWO AREAS MET THE SPECIFICATIONS AND THAT ANY ADDITIONAL DETAIL REQUIRED COULD PROPERLY BE FURNISHED AT THE CONTRACTUALLY REQUIRED CRITICAL DESIGN REVIEW. NEXT, YOU POINT TO THE FACT THAT ALL 12 PROPOSALS WERE INITIALLY CONSIDERED UNACCEPTABLE TO SOME DEGREE AND CONCLUDE THEREFROM THAT THE SPECIFICATIONS WERE "VAGUE." FINALLY YOU SUGGEST THAT THE CONTINENTAL PROPOSAL BE EVALUATED BY AN INDEPENDENT THIRD PARTY AND THAT THE CONCLUSION OF SUCH THIRD PARTY SERVE AS A BINDING ARBITRATION OF THE ACCEPTABILITY OR NON- ACCEPTABILITY OF THE CONTINENTAL PROPOSAL.

THE AIR FORCE ADMINISTRATIVE REPORT ON YOUR PROTEST, A COPY OF WHICH WAS FURNISHED YOU EARLIER, CONCEDES THAT THE CONTINENTAL PROPOSAL DID IN FACT OFFER 360 DEGS AZIMUTH ROTATION, CONTRARY TO THE STATEMENT MADE IN THE ORIGINAL TECHNICAL EVALUATION QUOTED ABOVE, AND CONCEDES FURTHER THAT CONTINUOUS AZIMUTH ROTATION WAS NOT AN EXPLICITLY STATED SPECIFICATION REQUIREMENT. WHILE MAINTAINING THE POSITION THAT CONTINUOUS ROTATION NONETHELESS WAS CLEARLY INDICATED BY THE USE TO WHICH THE EQUIPMENT WOULD BE PUT, THE REPORT STATES THAT HAD THE CONTINUOUS ROTATION PROBLEM BEEN THE ONLY ONE ENCOUNTERED IN THE CONTINENTAL FIRST-STEP PROPOSAL, CONTINENTAL WOULD HAVE BEEN AFFORDED AN OPPORTUNITY TO CLARIFY ITS PROPOSAL. HOWEVER, THE REPORT ADHERES TO THE POSITION TAKEN IN THE ORIGINAL EVALUATION THAT THE ARRANGEMENT PROPOSED BY CONTINENTAL FOR THE ROUTING OF RF ENERGY DOES NOT PROVIDE SUFFICIENT ASSURANCE THAT THE SPECIFICATION FIELD MOBILITY AND RAPID TURNAROUND REQUIREMENTS WOULD BE MET, NOTWITHSTANDING THAT FLEXIBLE AS WELL AS RIGID WAVEGUIDE WAS PROPOSED TO BE USED. IN THIS REGARD, THE REPORT MAINTAINS THAT SUFFICIENT DETAIL WITH RESPECT TO THIS PROPOSAL AREA WAS NOT PROVIDED, AS REQUIRED BY THE LRFTP TERMS, AND REJECTS YOUR CONTENTION THAT ADDITIONAL DETAIL COULD PROPERLY BE PRESENTED AT THE CRITICAL DESIGN REVIEW ON THE GROUND THAT THE PROPER TIME FOR DEMONSTRATION OF THE VALIDITY OF A TECHNICAL APPROACH IS BEFORE, NOT AFTER, AWARD.

WITH RESPECT TO YOUR SUGGESTION THAT THE CONTINENTAL PROPOSAL BE SUBMITTED TO BINDING ARBITRATION, ABSENT SPECIFIC STATUTORY AUTHORITY, THE RIGHTS OF THE UNITED STATES MAY NOT BE DETERMINED BY BINDING ARBITRATION. 32 COMP. GEN. 333 (1953). HOWEVER, WE REFERRED THE CONTINENTAL PROPOSAL TO AN ELECTRICAL ENGINEER ON OUR STAFF FOR COMMENT ON THE GENERAL ENGINEERING CONCEPTS PROPOSED. THE ENGINEER CONCLUDED THAT THE PROPOSAL WAS PROPERLY DETERMINED TO BE NOT ACCEPTABLE FROM AN ENGINEERING STANDPOINT. THE PRIMARY BASIS FOR THIS CONCLUSION WAS THAT INADEQUATE DETAILED DESIGN INFORMATION CONCERNING CONTINENTAL'S PROPOSED USE OF RIGID AND FLEXIBLE WAVEGUIDE FOR THE ROUTING OF RF ENERGY WAS NOT PROVIDED WITH THE RESULT THAT MAJOR MODIFICATION WOULD HAVE TO BE MADE TO THE CONTINENTAL DESIGN TO MAKE IT ACCEPTABLE.

SECONDLY, WITH RESPECT TO YOUR SUGGESTION THAT THE LRFTP WAS "VAGUE," WE NOTE THAT ONE OF THE FIVE CONDITIONS SET OUT IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-502(A)(I) JUSTIFYING THE USE OF THE TWO STEP FORMALLY ADVERTISED METHOD OF PROCUREMENT IS THAT SUCH METHOD SHOULD BE EMPLOYED WHEN SPECIFICATIONS ARE NOT SUFFICIENTLY DEFINITE OR COMPLETE.

IN THIS REGARD, AN ADMINISTRATIVE DETERMINATION TO USE THE TWO-STEP PROCEDURE BECAUSE OF THE INSUFFICIENCY OF TECHNICAL DATA TO MEET THE REQUIREMENTS OF A SINGLE-STEP ADVERTISED PROCUREMENT IS ONE WITHIN THE COGNIZANCE OF THE PROCUREMENT OFFICERS, WHO ARE BETTER QUALIFIED TO REVIEW AND DETERMINE THE QUALITATIVE REQUIREMENTS OF THE AGENCY, AND SUCH DETERMINATION, WHEN SUPPORTED BY THE FACTS, WILL NOT BE QUESTIONED. SEE 40 COMP. GEN. 514 (1961), 50 ID. 346 (1970).

IN ACCORDANCE WITH THE ABOVE CONSIDERATIONS, WE SEE NO BASIS UPON WHICH WE MAY PROPERLY OBJECT TO THE ADMINISTRATIVE ACTION IN REJECTING YOUR TECHNICAL PROPOSAL.