B-232959.2, Mar 2, 1989, 89-1 CPD 221

B-232959.2, Mar 2, 1989, 89-1 CPD 221

PROCUREMENT - Competitive Negotiation - Offers - Evaluation - Technical acceptability - Tests DIGEST: Protest that computer terminal offered by the awardee does not comply with mandatory requirements set out in the solicitation is denied where the record does not demonstrate that the procuring agency improperly determined that the awardee's equipment complies with the requirements.

Northwest Digital Systems:

Northwest Digital Systems protests the award of a contract for video computer terminals to Modgraph, Inc., under request for proposals (RFP) No. 805111, issued by the Leland Stanford Jr. University (Stanford). The terminals are to be used at the Stanford Linear Accelerator Center, a facility that Stanford operates and manages for the Department of Energy (DOE).

We deny the protest.

The RFP, which was issued on June 17, 1988, required video terminals which complied with a technical specification set out in the RFP. The specification listed both mandatory and desirable features for the terminals. The RFP provided that proposals would first be evaluated to ensure that the offered video terminals met all mandatory requirements. Those proposals that did so would then be awarded points based on the highly desirable features offered. Award was to be made to the offeror whose proposal was considered most advantageous, price and other factors considered.

Stanford received six proposals and rejected two as technically unacceptable. After evaluating the remaining four proposals Stanford determined that the Modgraph proposal, offering the firm's GX-2000 terminal, met the RFP requirements at the lowest price. Accordingly, on September 13, Stanford awarded a contract to Modgraph; Northwest states that it learned of the award on September 16. Northwest protests that the award is improper because the terminal Modgraph offered does not comply with all of the mandatory requirements listed in the technical specification.

As a preliminary matter, DOE argues that because the protest was not filed until November 17, more than 10 days after Northwest learned of the award to Modgraph on September 16, the protest is untimely. See Bid Protest Regulations, 4 C.F.R. Sec. 21.2(a)(2) (1988). We disagree.

While we will dismiss a protest as untimely where the protester fails to diligently pursue information that forms the basis of its protest, see Horizon Trading Co., Inc.; Drexel Heritage Furnishings, Inc., B-231177; B-231177.2, July 26, 1988, 88-2 CPD Para. 86, we also generally will resolve doubts about timeliness in favor of the protester. See LaCorte ECM, Inc., B-231448.2, Aug. 31, 1988, 88-2 CPD Para. 195. Since here it appears that during the period between the award and filing its protest Northwest was actively pursuing the information, unavailable from DOE and Stanford, that led it to conclude that the Modgraph terminal failed to comply with the solicitation requirements, we decline to dismiss the protest as untimely.

As noted above, the challenged award was made by Stanford in its capacity as the managing and operating contractor for DOE of the Stanford Linear Accelerator Center. Our Office does not review subcontract awards by government prime contractors except where the award of the subcontract is by or for the government. 4 C.F.R. Sec. 21.3(m)(10). Here, since the contractor is managing a government-owned facility and thus is acting "for" the government, the protest is one appropriate for our review. LaCorte ECM, Inc., B-231448.2, supra.

We review such subcontract procurements to determine whether the awards were consistent with the policy objectives of federal statutes and regulations. Our review is limited to examining whether the evaluation was fair, reasonable and consistent with the stated evaluation criteria. We will question the prime contractor's determination concerning the technical merits of proposals only upon a clear showing of unreasonableness, abuse of discretion or violation of procurement statutes or regulations. Water Resources Education, B-224684, Jan. 7, 1987, 87-1 CPD Para. 25. Further, the protester must show that the determination is unreasonable; the protester's mere disagreement does not demonstrate that the evaluation was unreasonable or provide a basis for us to object to an award decision. See HEI Inc., B-228482, Jan. 25, 1988, 88-1 CPD Para. 68.

Northwest first argues that the Modgraph terminal does not, as required by the specification, comply with the standards for personnel safety and equipment protection set forth in Underwriters Laboratory (UL) Standard for Safety UL-488. DOE responds that Stanford's professional personnel examined and tested the Modgraph terminal and found that it did comply with the standards set by UL-488. Since Northwest does not offer any evidence to support its position that the Modgraph terminal does not comply with UL-488, we have no basis to disagree with Stanford's conclusions concerning Modgraph's compliance with the standard based on examination and testing of the offered model.

The RFP also required equipment that was configured and operated in the text mode like a Digital Equipment Corporation (DEC) Model VT 220 or equal. Northwest argues that the Modgraph terminal does not respond to DEC Model VT 220 command sequences ESC No. 3, ESC N0. 4, ESC No. 5, and ESC No. 6, which select double-wide and double-high characters for text display. In support of its contention, Northwest submitted a Modgraph manual which lists these four sequences among those that are not implemented on its GX-2000 model. DOE responds that Stanford personnel operated the Modgraph unit and found that these sequences were implemented. DOE also reports that the Modgraph manual that Northwest submitted to our Office in support of its protest is not the same manual that Modgraph provided to Stanford with its terminal. DOE has provided us a copy of the manual that Stanford received and this manual does not list the disputed sequences as not implemented. Under these circumstances, we find that Stanford reasonably determined that the Modgraph terminal responds to the required sequences.

Northwest also contends that because the Modgraph terminal display is interlaced, it does not comply with the RFP requirement for a display that is "flicker-free" in the normal text mode of operation. In raising this issue Northwest admits that the solicitation did not define the requirement for flicker-free display, but argues that it is generally understood that flicker-free means non-interlaced. DOE responds that a flicker-free display does not necessarily require a non interlaced display, and that Stanford observed the Modgraph terminal in operation and found that it exhibited a flicker-free display in the normal text model.

While Northwest disagrees with DOE's interpretation of the flicker free requirement, it has not shown that that interpretation is unreasonable. In this regard, the specification neither defined flicker-free nor required the display to be non-interlaced in the normal text mode of operation, as Northwest contends. In fact, while a flicker-free display in the normal mode of operation was a mandatory requirement of the technical specification, a non-interlaced display was specifically listed separately as a desirable, not a mandatory, feature. Under these circumstances, we find that Northwest's contention is without merit.

Finally, Northwest contends that, contrary to the requirement in the RFP, not all the control sequences between the computer and terminal are compatible with American National Standard Industry (ANSI) standard X3.64. According to Northwest, the ANSI standard requires all private sequences to terminate with certain string terminators. A string terminator simply indicates the end of a sequence. Northwest asserts that the appropriate ANSI string terminator for the seven bit privacy sequences described in Modgraph's proposal would be "ESC" followed by a back slash. Northwest concludes that since Modgraph's documentation does not show this terminator for more than 200 private sequences, it does not comply with the requirement. DOE responds that the Modgraph manual is silent on the termination of privacy sequences; however, after operating the terminal Stanford determined that the Modgraph privacy sequences do conform to ANSI standards governing character code composition and respond correctly to the control sequences. In addition, in response to the protest, Modgraph has submitted a statement that all privacy messages on its terminal terminate with a string terminator even where the terminal operator fails to key the terminator.

Our review shows that the Modgraph proposal is silent concerning the use of the string terminator for privacy sequences. However, given that Stanford found, based on operating the system, that the terminal met the requirement and the record does not contain any information to contradict this finding, Northwest's protest on this point does not provide a basis for us to question the award to Modgraph. In this regard, we find nothing improper in Stanford's use of its testing results to determine that Modgraph's terminal met this requirement where Modgraph's descriptive literature was silent concerning the use of a string terminator. See Astrophysics Research Corp., B-228718.3, Feb. 18, 1988, 88-1 CPD Para. 167.

In its initial submission Northwest argued that the Modgraph terminal did not comply with the technical specification in three additional mandatory areas. In its report, DOE disputed Northwest's allegations and argued that the Modgraph terminal did, in fact, comply with the requirements. Since Northwest did not contest the agency's position in its subsequent comments we consider Northwest's protest concerning these areas abandoned. XMCO, Inc., B-228357, Jan. 26, 1988, 88-1 CPD Para. 75.

The protest is denied.