B-182613, APR 4, 1975

B-182613, APR 4, 1975

1. PROCURING AGENCY'S DETERMINATION THAT TECHNICAL PROPOSALS SUBMITTED UNDER AN RFP ISSUED APPROXIMATELY 1.5 YEARS EARLIER WERE STILL VALID WILL NOT BE DISTURBED IN ABSENCE OF CLEAR SHOWING OF ABUSE OF AGENCY'S ADMINISTRATIVE DISCRETION. 2. NO LEGAL BASIS EXISTS TO OBJECT TO AGENCY'S REFUSAL TO CONDUCT A DEBRIEFING PRIOR TO AWARD OF NEGOTIATED CONTRACT. MOREOVER, AGENCY ADVISED THAT A DEBRIEFING WILL BE PROVIDED TO THE PROTESTER REGARDING THE REJECTION OF ITS PROPOSAL WHEN CONTRACT AWARD IS MADE. 3. PROTEST REGARDING REJECTION OF PROPOSAL AS TECHNICALLY UNACCEPTABLE WHICH WAS RECEIVED AT GAO APPROXIMATELY SEVEN MONTHS AFTER PROTESTER WAS NOTIFIED OF ADVERSE AGENCY ACTION IS UNTIMELY NOTWITHSTANDING PROTESTER'S REQUEST FOR DEBRIEFING BY AGENCY.

EDMAC ASSOCIATES, INCORPORATED:

EDMAC ASSOCIATES, INCORPORATED (EDMAC) PROTESTS AWARD OF A CONTRACT BY THE FEDERAL AVIATION ADMINISTRATION (FAA) UNDER REQUEST FOR PROPOSAL (RFP) NO. WA5M-3-0399.

THE SUBJECT SOLICITATION, ISSUED SEPTEMBER 17, 1973, IS A NEGOTIATED RESEARCH AND DEVELOPMENT PROCUREMENT, PROVIDING FOR THE DESIGN, DEVELOPMENT, FABRICATION AND TESTING OF AN AIR-TO-GROUND RECEIVER FOR APPLICATION IN RESOLVING TRANSMITTER AND RECEIVER FREQUENCY ALLOCATION PROBLEMS. EDMAC WAS ONE OF SIXTEEN COMPANIES RESPONDING TO THE RFP. BASED UPON AN EVALUATION BY THE FAA, TEN OF THE SIXTEEN PROPOSALS, INCLUDING EDMAC'S, WERE FOUND TECHNICALLY UNACCEPTABLE; EDMAC WAS NOTIFIED ON MARCH 5, 1974, OF THE REASONS FOR THE AGENCY'S REJECTION OF ITS PROPOSAL. THE FAA LETTER FURTHER STATED: "SHOULD YOU DESIRE A DEBRIEFING, PLEASE SUBMIT YOUR REQUEST IN WRITING TO *** FEDERAL AVIATION ADMINISTRATION ***."

EDMAC, BY LETTER DATED NOVEMBER 8, 1974, AND RECEIVED AT THE GENERAL ACCOUNTING OFFICE (GAO) ON NOVEMBER 12, 1974, PROTESTS THE PROSPECTIVE CONTRACT AWARD TO ANY FIRM AND REQUESTS THAT THE SOLICITATION BE CANCELLED AND RESOLICITED. THE BASES OF THE EDMAC PROTEST ARE:

"1.) BECAUSE OF THE TIME LAPSE SINCE SOLICITATION (FROM SEPTEMBER 17, 1973, TO DATE) ALL PROPOSALS ARE STALE. BECAUSE OF CHANGES IN THE STATE- OF-THE-ART A RESOLICITATION WOULD BENEFIT THE GOVERNMENT AND SHOULD BE ORDERED BY THE GAO.

"2.) EDMAC HAS NOT RECEIVED A TIMELY DEBRIEFING AND HAS THEREBY BEEN ADVERSELY AFFECTED IN SUBMITTING PROPOSALS FOR SUBSEQUENT FAA SOLICITATIONS. EDMAC ALLEGES THAT IF IT HAD BEEN PROVIDED WITH A TIMELY DEBRIEFING ON RFP WA5M-3-0399 IT WOULD BE ABLE TO PROVIDE IMPROVED RESPONSES TO FUTURE FAA SOLICITATIONS.

"3.) EDMAC'S PROPOSAL WAS REJECTED ON THE BASIS OF UNDULY RESTRICTIVE EXPERIENCE REQUIREMENTS."

APPARENTLY EDMAC WAS PROMPTED TO FILE A PROTEST AFTER AN FAA CONTRACTING OFFICER ADVISED THE FIRM ON NOVEMBER 5, 1974, THAT A CONTRACT AWARD HAD NOT BEEN MADE.

IN RESPONSE TO EDMAC'S ARGUMENT REGARDING THE STALENESS OF PROPOSALS THE FAA STATES:

"THE FAA'S REQUIREMENTS CONCERNING THE DESIGN AND DEVELOPMENT OF A VHF FIXED-TUNED RECEIVER FOR USE IN THE RESOLUTION OF PROBLEMS RESULTING FROM NEW RECEIVER AND TRANSMITTER CO-SITING CRITERIA HAVE NOT CHANGED AND REMAIN A VALID NEED. THE PROPOSED METHOD OF CONTRACTING IS COST-PLUS- FIXED-FEE, AND WE HAVE OBTAINED UPDATED COST DATA AS OF JANUARY 28. ADDITION, AN UPDATED CERTIFICATE OF CURRENT COST AND PRICING DATA WOULD BE REQUIRED OF THE SUCCESSFUL OFFEROR AT THE TIME OF EXECUTION OF THE CONTRACT. THE TECHNICAL VALIDITY OF THE RESPONSE HAS NOT BEEN AFFECTED. FURTHER, FAA TECHNICAL PERSONNEL DO NOT BELIEVE THAT ANY SIGNIFICANT CHANGE HAS TAKEN PLACE IN THE STATE OF THE ART WHICH WOULD BENEFIT THE GOVERNMENT UPON RESOLICITATION.

"WE RECOGNIZE THAT A SIGNIFICANT AMOUNT OF TIME HAS ELAPSED SINCE THE SOLICITATION WAS ISSUED. EVALUATIONS OF THE 16 TECHNICAL PROPOSALS AND SUBSEQUENT AUDITS AND NEGOTIATIONS WITH THE SIX TECHNICALLY ACCEPTABLE OFFERORS WERE PERFORMED OVER A SEVEN MONTH PERIOD. BEST AND FINAL OFFERS WERE RECEIVED IN JUNE AND REFERRED TO THE SOURCE EVALUATION BOARD (SEB) FOR ACTION. THE SEB MADE ITS RECOMMENDATION TO THE SOURCE SELECTION OFFICIAL (SSO) IN LATE AUGUST. THE SSO REQUESTED ADDITIONAL SUPPORT FOR THE SEB'S FINDINGS, AND HIS FINAL DECISION WAS MADE ON NOVEMBER 11. THEREFORE, THE AMOUNT OF TIME WHICH ELAPSED WAS DUE TO A COMBINATION OF THE RELATIVELY LARGE NUMBER OF OFFERORS, THE COMPLEXITY OF THE TECHNICAL EVALUATION, AND SUBSEQUENT NEGOTIATIONS WITH THE SIX COMPANIES."

IN REPLY TO THE ADMINISTRATIVE REPORT EDMAC STATES THAT IT AND OTHER COMPANIES HAVE COMPLETED OR CONDUCTED SIGNIFICANT RECEIVER DEVELOPMENT SINCE SUBMISSION OF PROPOSALS AND IT PERSISTS IN ITS VIEW THAT PROPOSALS SUBMITTED UNDER THIS SOLICITATION ARE STALE. MOREOVER, THE FIRM BELIEVES A FIXED PRICE RATHER THAN A COST TYPE CONTRACT WOULD BE APPROPRIATE AT THIS TIME.

THE RECORD IN THIS CASE SHOWS THAT THE DELAY LARGELY WAS DUE TO EVALUATIONS OF COMPLEX PROPOSALS AND THE NEGOTIATION PROCESS. MOREOVER, ALTHOUGH EDMAC AT THIS TIME MAY BE BETTER ABLE TO MEET THE NEEDS OF FAA AS A RESULT OF ITS RECENT WORK, WE DO NOT FIND ANY CONVINCING BASIS FOR QUESTIONING FAA'S OPINION THAT THERE HAS BEEN NO CHANGE IN THE STATE OF THE ART WHICH WOULD BENEFIT THE GOVERNMENT UPON RESOLICITATION. WHILE WE DO NOT CONDONE THE DELAY EXPERIENCED IN THIS CASE, THERE IS NO SHOWING OF AN ABUSE OF THE FAA'S DISCRETION IN REFUSING TO CANCEL AND RESOLICIT ITS REQUIREMENTS.

REGARDING THE PROTESTER'S OBJECTION TO FAA'S FAILURE TO PROVIDE A DEBRIEFING, WE NOTE THE FIRM WAS ADVISED OF THE DETERMINATION THAT ITS PROPOSAL WAS UNACCEPTABLE AND, IN GENERAL TERMS, THE BASIS FOR SUCH DETERMINATION. IT IS GENERALLY RECOGNIZED, AS PROTESTER ARGUES, THAT AN ADEQUATE DEBRIEFING CAN PROVIDE THE BASIS UPON WHICH OFFERORS MAY IMPROVE FUTURE PROPOSALS. SEE, FOR EXAMPLE, ARMED SERVICES PROCUREMENT REGULATION 3-508.4(A)(1974 ED.). IN THIS CASE THE AGENCY HAS INDICATED ITS WILLINGNESS TO PROVIDE EDMAC A MORE DETAILED EXPLANATION OF ITS ACTIONS AFTER THE CONTRACT HAS BEEN AWARDED. WE ARE AWARE OF NO LEGAL BASIS FOR OBJECTING TO THE AGENCY'S ACTIONS IN THIS REGARD.

IN CONNECTION WITH EDMAC'S PROTEST REGARDING THE REJECTION OF ITS PROPOSAL ON THE BASIS OF THE RFP'S EXPERIENCE REQUIREMENTS, WE FIND THE ISSUE IS UNTIMELY RAISED. SECTION 20.2(A) OF TITLE 4, CODE OF FEDERAL REGULATIONS (CFR), READS AS FOLLOWS:

"SEC. 20.2 TIME FOR FILING.

(A) PROTESTERS ARE URGED TO SEEK RESOLUTION OF THEIR COMPLAINTS INITIALLY WITH THE CONTRACTING AGENCY. PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS SHALL BE FILED PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS. IN OTHER CASES, BID PROTESTS SHALL BE FILED NOT LATER THAN 5 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. IF A PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO THE GENERAL ACCOUNTING OFFICE FILED WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION WILL BE CONSIDERED PROVIDED THE INITIAL PROTEST TO THE AGENCY WAS MADE TIMELY. THE TERM 'FILED' AS USED IN THIS SECTION MEANS RECEIPT IN THE CONTRACTING AGENCY OR IN THE GENERAL ACCOUNTING OFFICE AS THE CASE MAY BE AND PROTESTERS ARE, THEREFORE, CAUTIONED THAT PROTESTS SHOULD BE TRANSMITTED OR DELIVERED IN THAT MANNER WHICH WILL ASSURE EARLIEST RECEIPT."

THE RECORD SHOWS THAT EDMAC WAS NOTIFIED IN EARLY MARCH OF 1974 THAT ITS PROPOSAL WAS REJECTED AS TECHNICALLY UNACCEPTABLE. THE NOTICE SPECIFIED THE FIRM'S RELATIVE INEXPERIENCE AS ONE REASON FOR REJECTION AND ADVISED THAT IF A DEBRIEFING WAS DESIRED IT SHOULD BE REQUESTED IN WRITING. MARCH 12, 1974, THE FAA RECEIVED A MAIL GRAM FROM EDMAC REQUESTING RECONSIDERATION OF THE REJECTION OF EDMAC'S PROPOSAL. THE CONTRACTING OFFICER REJECTED THIS PROTEST BY LETTER OF APRIL 5, 1974, STATING THAT THE EDMAC PROPOSAL WOULD RECEIVE NO FURTHER CONSIDERATION. FINALLY, BY LETTER DATED APRIL 23, 1974, EDMAC REQUESTED A DEBRIEFING WITH THE FAA. WE HAVE BEEN INFORMALLY ADVISED THAT THE CONTRACTING OFFICER RESPONDED TO EDMAC'S APRIL 23 LETTER BY ORALLY ADVISING EDMAC THAT IT WOULD RECEIVE A DEBRIEFING, BUT NOT UNTIL AFTER CONTRACT AWARD.

IT IS CLEAR THAT THE PROTEST TO THIS OFFICE AGAINST REJECTION OF THE PROPOSAL IS UNTIMELY SINCE IT WAS FILED APPROXIMATELY EIGHT MONTHS AFTER AGENCY NOTIFICATION OF THE BASIS FOR REJECTION AND SEVEN MONTHS AFTER REJECTION BY THE AGENCY OF THE FIRM'S REQUEST FOR RECONSIDERATION. THIS CONNECTION WE RECOGNIZE THAT WE HAVE PERMITTED A PROTESTER TO WITHHOLD FILING A PROTEST TO ATTEND A DEBRIEFING CONFERENCE SCHEDULED TO OCCUR ONLY EIGHT DAYS AFTER THE BASIS FOR PROTEST BECAME KNOWN. SEE LAMBDA CORPORATION, B-181411, DECEMBER 5, 1974, 54 COMP. GEN. . IN THE INSTANT CASE, HOWEVER, EDMAC DID NOT POSTPONE ITS PROTEST BECAUSE OF A SCHEDULED DEBRIEFING. TO THE CONTRARY, IT SOUGHT INITIAL RESOLUTION OF ITS COMPLAINT BY REQUESTING THE CONTRACTING AGENCY TO RECONSIDER THE MATTER. IN SUCH CIRCUMSTANCES, OUR TIMELINESS STANDARDS CLEARLY REQUIRE THAT ANY PROTEST BE FILED WITH THIS OFFICE WITHIN FIVE DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION.

ACCORDINGLY, THE PROTEST IS DENIED.