B-218077.3, SEP 3, 1985, 85-2 CPD 260

B-218077.3, SEP 3, 1985, 85-2 CPD 260

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED DIGEST: PRIOR DECISION UPHOLDING PROCURING ACTIVITY'S DECISION TO EXERCISE PURCHASE OPTION UNDER EXISTING CONTRACT IS AFFIRMED WHERE: (1) PROTESTER REPEATS MANY ARGUMENTS MADE IN ORIGINAL PROTEST, BUT MERELY DISAGREES WITH GAO'S CONCLUSIONS ON THOSE ARGUMENTS; (2) ALLEGED DISAGREEMENT AMONG GOVERNMENT INSTALLATIONS OVER EVALUATION OF PROTESTER'S PRODUCT INFORMATION HAS NOT BEEN SHOWN TO BE RESULT OF TECHNICAL ERROR BY PROCURING ACTIVITY; AND (3) ALLEGATIONS THAT GAO SHOWED A "LACK OF OBJECTIVITY" IN CONSIDERING PROTEST ARE WITHOUT MERIT.

PROTRONYX, INC.:

PROTRONYX, INC. (PROTRONYX), SUCCESSOR TO DELTA SYSTEMS, INC. (DELTA), HAS REQUESTED RECONSIDERATION OF OUR DECISION DENYING THE PROTEST OF DELTA AGAINST THE AIR FORCE'S PROPOSED PURCHASE OF COMPUTER EQUIPMENT UNDER AN EXISTING AIR FORCE LEASE. DELTA SYSTEMS, INC., B-218077.2, MAY 22, 1985, 85-1 CPD PARA. 584.

WE AFFIRM THE PRIOR DECISION.

ON RECONSIDERATION, PROTRONYX ESSENTIALLY RELATES SEVERAL ARGUMENTS-- WHICH OUR MAY DECISION REJECTED-- CONCERNING THE ALLEGED TECHNICAL AND FINANCIAL MERITS OF DELTA EQUIPMENT COMPARED WITH THE EQUIPMENT AVAILABLE UNDER THE EXISTING LEASE. FOR EXAMPLE, PROTRONYX NOW ARGUES THAT DELTA PROVIDED THE AIR FORCE WITH AN OPPORTUNITY TO WITNESS DEMONSTRATIONS AT DELTA-INSTALLED SITES TO DETERMINE THE COMPATIBILITY OF THE DELTA PRODUCT, BUT THE AIR FORCE DID NOT AVAIL ITSELF OF THIS OPPORTUNITY. THIS ARGUMENT RELATES TO DELTA'S EARLIER ARGUMENT THAT THE AIR FORCE HAD IMPROPERLY REFUSED TO INSPECT DELTA'S EQUIPMENT AT AN INSTALLED CUSTOMER SITE FEWER THAN 80 MILES FROM THE PROCURING ACTIVITY. PROTRONYX'S REPETITION OF ITS EARLIER ARGUMENT SHOWS THAT IT SIMPLY DISAGREES WITH MANY OF THE CONCLUSIONS IN OUR PRIOR DECISION; HOWEVER, MERE DISAGREEMENT DOES NOT PROVIDE A BASIS FOR REVERSING A DECISION. SPECTRUM LEASING CORP., B-213647.3, SEPT. 10, 1984, 84-2 CPD 267.

CONCERNING THE TECHNICAL ISSUE, PROTRONYX ARGUES THAT ANOTHER AIR FORCE BASE AND THE ARMY'S REDSTONE ARSENAL ACCEPTED DELTA COMPUTER EQUIPMENT AS ACCEPTABLE FOR THE "SAME TYPE OF (COMPUTER) MAINFRAMES" ON THE BASIS OF APPROXIMATELY THE SAME INFORMATION THAT WAS PROVIDED TO THE AIR FORCE BASE INVOLVED IN THIS PROCUREMENT-- WRIGHT-PATTERSON AIR FORCE BASE (AFB). ASSUMING, FOR THE SAKE OF DISCUSSION, THAT THIS STATEMENT IS CORRECT, WE CANNOT CONCLUDE THAT THE WRIGHT-PATTERSON EVALUATORS ACTED IMPROPERLY IN FINDING THAT THE CONFORMATION PROVIDED BY DELTA WAS INADEQUATE. IT IS NOT UNCOMMON THAT TECHNICAL EVALUATORS DISAGREE ABOUT THE ADEQUACY OF TECHNICAL DOCUMENTATION AND THE SUBSTANTIVE CONCLUSIONS TO BE DRAWN FROM THAT DOCUMENTATION. THAT DISAGREEMENT, HOWEVER, DOES NOT NECESSARILY INDICATE OBJECTIVE ERROR IN ONE POSITION BUT RATHER A MERE DIFFERENCE OF OPINION. WE NOTE THAT DELTA, IN ITS INITIAL PROTEST, DID NOT COMPLAIN THAT THE EVALUATORS' CONCLUSION HERE WAS ERRONEOUS, BUT EXPRESSED CONCERN ONLY THAT THE AIR FORCE'S FAILURE TO PROVIDE DELTA WITH THE INCUMBENT CONTRACTOR'S EQUIPMENT CONFIGURATION PREVENTED IT FROM PROVIDING MORE INFORMATION. UNDER THESE CIRCUMSTANCES, WE HAVE NO BASIS TO MODIFY OUR PRIOR HOLDING MERELY BECAUSE OF WHAT MAY HAVE HAPPENED AT ANOTHER INSTALLATION.

FINALLY, PROTRONYX ARGUES THAT WE SHOWED A LACK OF OBJECTIVITY IN THIS PROTEST BECAUSE: (1) WE ACCEPTED THE AIR FORCE POSITION THAT THE CONTRACTING OFFICER COULD PROPERLY TEST THE MARKET-- AS WAS DONE-- EVEN THOUGH THE AIR FORCE DID NOT FORMALLY SOLICIT COMPETITIVE PROPOSALS; (2) THE CONFERENCE ON THE PROTEST WAS CONDUCTED IN 1 HOUR ONLY; AND (3) WE DID NOT ACCEPT THE VALIDITY OF SOME OF DELTA'S ARGUMENTS IN THE EARLIER DECISION CONCERNING "FIPS (FEDERAL INFORMATION PROCESSING STANDARDS) APPROVAL."

AS TO PROTRONYX'S FIRST ARGUMENT, WE SIMPLY POINT OUT THAT THE FEDERAL ACQUISITION REGULATION, SEC. 17.207, EXERCISE OF OPTIONS, 48 C.F.R. SEC. 17.207 (1984), PROVIDES-- AT SUBSECTION (D)(2)-- THAT A CONTRACTING OFFICER MAY MAKE AN "INFORMAL ANALYSIS ... OF THE MARKET" IN DETERMINING WHETHER IT IS ADVANTAGEOUS TO EXERCISE AN OPTION. CONSEQUENTLY, THE AIR FORCE'S DECISION TO INFORMALLY TEST THE MARKET WITHOUT ISSUING A NEW SOLICITATION WAS APPROPRIATE.

AS TO PROTRONYX'S SECOND ARGUMENT, WE POINT OUT THAT DELTA DID NOT OBJECT TO THE PROPOSED 1-HOUR DURATION OF THE CONFERENCE WHEN THE CONFERENCE WAS ARRANGED. WHEN THE CONFERENCE WAS HELD, DELTA AND THE AIR FORCE RESTATED AND SUMMARIZED THEIR POSITIONS DURING THE LAST 10 MINUTES OF THE CONFERENCE AND NEITHER PARTY OBJECTED TO THE TERMINATION OF THE CONFERENCE AT THE END OF AN HOUR. UNDER THE CIRCUMSTANCES, WE DO NOT AGREE THAT PROTRONYX HAS SHOWN A LACK OF OBJECTIVITY ON OUR PART; MOREOVER, SINCE OUR DECISIONS ARE NOT BASED ON THE CONFERENCES, BUT ON THE WRITTEN RECORD ESTABLISHED BEFORE AND AFTER THE CONFERENCES, THIS ISSUE DOES NOT AFFECT THE PROPRIETY OF OUR DECISION.

CONCERNING ISSUE (3) INVOLVING "FIPS APPROVAL," DELTA MERELY RESTATES ITS ARGUMENT WHICH IT PRESENTED IN THE ORIGINAL PROTEST. AS NOTED ABOVE, MERE DISAGREEMENT WITH OUR DECISION DOES NOT PROVIDE A BASIS FOR REVERSING A DECISION.