B-178923, SEP 19, 1974

B-178923, SEP 19, 1974

UPON REQUEST FOR RECONSIDERATION, DECISION B-178923, NOVEMBER 14, 1973, IS AFFIRMED AS PROTESTER HAS FAILED TO PRESENT NEW EVIDENCE INDICATING BASIS FOR REVERSAL OF GAO CONCLUSION THAT PROTESTER'S PROPOSAL WAS PROPERLY REJECTED WITHOUT DISCUSSION BECAUSE TECHNICAL PROPOSAL DID NOT INCLUDE CERTAIN INFORMATION REQUIRED BY RFP AND REQUIRED PREAWARD SAMPLE FAILED TESTING REQUIREMENTS.

COSMOS INDUSTRIES, INCORPORATED: COSMOS INDUSTRIES, INCORPORATED, REQUESTS RECONSIDERATION OF B-178923, NOVEMBER 14, 1973, IN WHICH WE CONCLUDED THAT THE RECORD SUPPORTED THE NAVY'S REJECTION OF ITS PROPOSAL FOR FURNISHING A QUANTITY OF VHF-FM (55 CHANNEL) TRANSCEIVERS WITHOUT DISCUSSION BECAUSE THE PROPOSAL FAILED TO COMPLY WITH THE RFP REQUIREMENT FOR SUBMISSION OF DESCRIPTIVE LITERATURE AND DOCUMENTATION TO SUBSTANTIATE THAT THE EQUIPMENT OFFERED MET OR EXCEEDED THE MINIMUM SPECIFICATION REQUIREMENTS AND BECAUSE ITS PREAWARD SAMPLE FAILED TESTING REQUIREMENTS. SINCE OUR PRIOR DECISION CONTAINED A COMPLETE STATEMENT OF THE FACTS CONCERNING THE PROCUREMENT AND PROTEST, ONLY SUCH FACTS AS ARE PERTINENT TO OUR RECONSIDERATION WILL BE REPEATED HEREIN.

WITH REGARD TO THE FIRST GROUND FOR REJECTION OF ITS PROPOSAL, COSMOS CONTINUES TO INSIST THAT ITS PROPOSAL BASED UPON FURNISHING AND AN/SRC 34 TRANSCEIVER IN ACCORDANCE WITH THE APPLICABLE SPECIFICATION WAS SUFFICIENT BECAUSE THAT EQUIPMENT EXCEEDED THE REQUIREMENTS OF THE SUBJECT PROCUREMENT AND THE NAVY HAD ALL THE DATA NECESSARY TO EVALUATE AN AN/SRC- 34 FROM COSMOS' PERFORMANCE UNDER AN EARLIER CONTRACT FOR THAT ITEM. THIS CONNECTION, COSMOS ALSO POINTS OUT THAT THE COVER LETTER TO ITS PROPOSAL NOT ONLY REFERENCED THIS FACT, BUT ALSO REFERRED TO ITS DELIVERY OF AN/SRC-34S TO LITTON INDUSTRIES, A NAVY PRIME CONTRACTOR, AS EVIDENCE THAT THE NAVY HAD THE NECESSARY DATA AND KNEW OF THE ACCEPTABILITY OF COSMOS' TECHNICAL APPROACH. COSMOS ALSO OFFERED AN ALTERNATE PROPOSAL BASED UPON MODIFYING THE AN/SRC-34 TO MEET THE LESS STRINGENT SPECIFICATION UNDER THE NEW PROCUREMENT. FURTHERMORE, COSMOS DISPUTES THE NAVY'S POSITION THAT ITS PROPOSAL CONTAINED ONLY GENERAL REFERENCE TO THE AN/SRC-34 DATA, POINTING OUT THAT THE PROPOSAL SPECIFIED THE "EQUIPMENT, ITS NOMENCLATURE, THE SPEC TO WHICH IT CONFORMED, THE CONTRACT NUMBER AGAINST WHICH IT WAS BUILT AND A GENERAL DISCUSSION AS WELL AS A TABULATION COMPARISON OF THE TWO SPECIFICATIONS BY PARAGRAPH NUMBER."

MOREOVER, COSMOS AGAIN ASSERTS THAT THE FAILURE OF ITS PREAWARD SAMPLE TO PASS THE TESTING PROCEDURES PRESCRIBED BY THE RFP WAS DUE TO FAULTY TEST PROCEDURES EMPLOYED BY NAVY PERSONNEL. TO SUPPORT ITS POSITION, COSMOS BASICALLY RESTATES ITS PRIOR ARGUMENTS THAT THE AN/SRC 34 HAD UNDERGONE SUCCESSFUL TESTING UNDER ITS PRIOR CONTRACT; THAT THE UNITS SUPPLIED TO LITTON WERE COMPLIANT WITH THE SPECIFICATIONS; THAT THE TEST UNIT RETURNED TO IT BY THE NAVY WAS IN A DAMAGED CONDITION; AND THAT BY REPLACING THE POWER SUPPLY MODULE IN THE TEST UNIT IT PERFORMED AT AN ACCEPTABLE LEVEL.

IT IS OUR VIEW THAT COSMOS HAS ESSENTIALLY RESTATED THE ARGUMENTS MADE IN CONNECTION WITH OUR INITIAL CONSIDERATION OF THE PROTEST AND HAS FAILED TO PRESENT ANY NEW EVIDENCE WHICH REQUIRES REVERSAL OF OUR PRIOR CONCLUSIONS. IN CONCLUDING IN OUR PRIOR DECISION THAT THE NAVY HAD NOT ABUSED ITS DISCRETION IN DETERMINING THAT COSMOS' TECHNICAL PROPOSAL WAS MATERIALLY DEFICIENT WE WERE WELL AWARE OF THE FACT THAT THE NAVY POSSESSED CONSIDERABLE DATA AND DOCUMENTATION CONCERNING COSMOS' 2 1/2 YEAR EFFORT TO SUCCESSFULLY PERFORM THE AN/SRC-34 CONTRACT. HOWEVER, WE WERE ALSO COGNIZANT OF THE NAVY'S POSITION THAT SINCE COSMOS' PERFORMANCE UNDER THE PRIOR CONTRACT HAD NOT BEEN SATISFACTORY, SPECIFICATION WAIVERS HAD BEEN GRANTED, AND THE FIRST ARTICLE WAS ONLY CONDITIONALLY APPROVED, IT WAS NOT CLEAR WHAT DATA RELATIVE TO THE AN/SRC-34 WAS TO BE INCORPORATED IN COSMOC' PROPOSAL TO SUBSTANTIATE AS REQUIRED BY THE RFP THAT THE EQUIPMENT OFFERED WOULD MEET OR EXCEED THE DIFFERING SPECIFICATIONS APPLICABLE TO THE SUBJECT PROCUREMENT. FURTHERMORE, IT WAS DETERMINED THAT COSMOS DID NOT STATE HOW THE PROPOSED EQUIPMENT WOULD BE MODIFIED TO MEET CHANNEL 13RF POWER OUTPUT REQUIREMENTS AND PROPOSED THE WRONG MODIFICATION CONCERNING THE CHANNEL 88 RECEIVE REQUIREMENT. WITH REGARD TO COSMOS' ALTERNATE PROPOSAL, NO INFORMATION WAS PROVIDED AS TO HOW IT PROPOSED TO MODIFY THE AN/SRC-34 TO MEET THE SPECIFICATIONS. ADDITION, AT THE TIME OF AWARD TO THE SUCCESSFUL OFFEROR, CONTRARY TO COSMOS' ASSERTION, THE APPLICABLE DCASR ENGINEERING PROGRESS SUMMARY CONCERNING COSMOS' PERFORMANCE FOR LITTON INDICATED IT WAS UNSATISFACTORY IN CERTAIN RESPECTS. FOR EXAMPLE, AUDITS PERFORMED ON THE COSMOS DRAWINGS USED TO MANUFACTURE THE EQUIPMENT REVEALED INCONSISTENCIES WITH RESPECT TO CONDITIONAL APPROVAL GRANTED FOR 10 VARIETIES OF COSMOS MANUFACTURED NON- STANDARD PARTS AND WITH RESPECT TO CERTAIN DETAILS OF MATERIAL AND WORKMANSHIP REQUIREMENTS WE ADHERE TO THE VIEW THAT IT WAS NOT UNREASONABLE FOR THE NAVY TO CONCLUDE THAT THE COSMOS' TECHNICAL PROPOSAL WAS MATERIALLY DEFICIENT WITH RESPECT TO PROVIDING DATA AND DOCUMENTATION TO ESTABLISH HOW IT PROPOSED TO MEET THE SPECIFICATIONS.

IN ADDITION, REJECTION OF COSMOS' PROPOSAL WAS NOT BASED SOLELY ON ITS INADEQUATE TECHNICAL PRESENTATION, BUT ALSO ON THE BASIS OF THE FAILURE OF ITS PREAWARD SAMPLE TO SUCCESSFULLY PASS THE PRESCRIBED TEST PROCEDURES. WHILE COSMOS HAS CONTENDED THAT THE FAILURE RESULTED FROM FAULTY TEST PROCEDURES, IT HAS NOT PROVIDED ANY NEW EVIDENCE TO SUBSTANTIATE THIS POSITION. THEREFORE, FOR THE REASONS STATED IN OUR PRIOR DECISION, THERE IS NO BASIS FOR OUR OFFICE TO CONCLUDE THAT FAULTY TESTING CAUSED THE FAILURE. IN ADDITION, UPON FURTHER REVIEW OF THE RECORD, WE NOTE THAT THE NAVY'S INVESTIGATION OF THIS CHARGE SHOWED THAT THE EQUIPMENT FAILED TO MEET THE MINIMUM REQUIREMENTS EVEN BEFORE THE ALLEGED MISHANDLING OF THE EQUIPMENT BY NAVY PERSONNEL.

FOR THE FOREGOING REASONS, THE DECISION OF NOVEMBER 14, 1973, IS AFFIRMED.