B-170965, MAR 18, 1971

B-170965, MAR 18, 1971

BID PROTEST - BID RESPONSIVENESS - DEVIATIONS DENIAL OF PROTEST OF TRACOR, INC., AGAINST THE AWARD OF A NEGOTIATED CONTRACT FOR ELECTRONIC PROTECTIVE DEVICES FOR USE ON AIRCRAFT ISSUED BY NAVY PURCHASING OFFICE, LOS ANGELES, CALIFORNIA TO ANY OTHER BIDDER. WHILE FAILURE TO ADVISE PROPOSERS OF THE RELATIVE IMPORTANCE ALLOTTED TO FACTORS FOR EVALUATION PURPOSES WAS AN ADMINISTRATIVE DEFICIENCY, THE DECISION TO REJECT PROTESTANT'S OFFER WAS BASED ON ITS DEVIATIONS FROM THE REQUIREMENTS IN CERTAIN KEY AREAS.

TO TRACOR, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 29, 1970, WITH ENCLOSURE, PROTESTING AWARD OF A CONTRACT TO ANOTHER FIRM UNDER REQUEST FOR PROPOSALS NO. N00123-70-R-1353, ISSUED BY THE NAVY PURCHASING OFFICE, LOS ANGELES, CALIFORNIA.

YOU CONTEND THAT AWARD OF THE "CONTRACT SHOULD HAVE BEEN MADE TO TRACOR AS IT WAS THE LOWEST RESPONSIVE AND RESPONSIBLE OFFEROR, AND, THEREFORE, AWARD TO ANY OTHER FIRM WAS IN VIOLATION OF CURRENT PROCUREMENT LAWS AND REGULATIONS." YOU ALLEGE THAT THE SOLICITATION FAILED TO SPECIFY THE WEIGHTS ASSIGNED TO THE FACTORS USED IN THE EVALUATION OF PROPOSALS AND CITE SEVERAL OF OUR DECISIONS AS REQUIRING EVALUATION FACTORS TO BE SET OUT IN THE SOLICITATION, AND THEIR RELATIVE IMPORTANCE. YOU FURTHER ALLEGE THAT TRACOR WAS NOT ALLOWED AN OPPORTUNITY TO CONDUCT MEANINGFUL DISCUSSIONS UNTIL AFTER A PROTEST WAS LODGED WITH THE SECRETARY OF THE NAVY; THAT WHEN A MEETING WAS HELD IT AMOUNTED ONLY TO A BRIEFING BY TRACOR, WITH NO EXCHANGE OF QUESTIONS AND ANSWERS. YOU ALSO STATE THAT TRACOR WAS ADVISED IN A DOCUMENT IN THE SOLICITATION PACKAGE, THAT ITS PROPOSAL, TO BE CONSIDERED RESPONSIVE, HAD TO COMPLY WITH "THREE (3) TECHNICAL AREAS LABELED A, B, AND C," AND THAT YOUR REVISED PROPOSAL AND TECHNICAL RESPONSES INCLUDED SPECIFIC COMPLIANCE WITH THE REQUIREMENT.

THIS PROCUREMENT WAS FOR A CERTAIN ELECTRONIC PROTECTIVE DEVICE FOR USE ON AIRCRAFT. THE NEED WAS URGENT. PRIOR TO THE ISSUANCE OF THE REQUEST FOR PROPOSALS, A NUMBER OF UNSOLICITED PROPOSALS FOR SIMILAR DEVICES WERE RECEIVED BY THE REQUIRING ACTIVITY. NONE OF THE UNSOLICITED PROPOSALS RECEIVED FULLY SATISFIED THE ACTIVITY'S NEEDS.

OF THE COMPANIES SOLICITED, THREE SUBMITTED PROPOSALS: GOODYEAR AEROSPACE COMPANY, LUNDY ELECTRONICS, AND TRACOR, INCORPORATED. NONE OF THE PROPOSALS RECEIVED WERE FOUND TO BE FULLY RESPONSIVE. EACH OF THE THREE COMPANIES, BY LETTERS DATED MAY 21, 1970, WAS REQUESTED TO SUBMIT AN AMENDED PROPOSAL, RESPONDING TO THE TECHNICAL QUESTIONS RAISED. THE REQUESTS EACH DIRECTED THAT THE RESPONSES BE SUBMITTED NOT LATER THAN JUNE 3, 1970. (IN THIS CONNECTION, THE JUNE 2, 1970, CLOSING DATE MENTIONED IN THE CONTRACTING OFFICER'S LETTER OF SEPTEMBER 3, 1970, WAS A TYPOGRAPHICAL ERROR. THE ACTUAL CLOSING DATE WAS JUNE 3, 1970). EACH OF THE THREE UPDATED AND AMENDED PROPOSALS WAS RECEIVED AND SUBMITTED TO THE REQUIRING ACTIVITY FOR EVALUATION.

THE SOLICITATION SET FORTH THE EVALUATION FACTORS AS FOLLOWS:

"D-1 PROPOSAL EVALUATION CRITERIA: ACCEPTABILITY OF OFFERS AND AWARD OF CONTRACT WILL BE DETERMINED BY COMPLIANCE WITH THE FOLLOWING:

"1. TECHNICAL APPROACH AND METHOD OF ACCOMPLISHING DESIRED PERFORMANCE IN PROCURED ITEMS.

"2. CONFORMITY TO SPECIFICATIONS AND EXCEPTIONS REQUIRED.

"3. PAST EXPERIENCE AND FAMILIARITY WITH (DEVICE) TECHNOLOGY.

"4. CONTRACT COST AND PROJECTED COST OF PRODUCTION UNITS.

"5. CALIBER BY KEY TECHNICAL PERSONNEL ASSIGNED TO THE TASK.

"6. QUALITY OF ENGINEERING MANUFACTURING AND TEST FACILITIES ASSIGNED TO THE TASK.

"7. TIMELINESS OF DELIVERY AND ABILITY TO MAINTAIN SCHEDULES.

"8. INTEGRITY OF CONTRACTOR'S FISCAL RESPONSIBILITY.

"9. IN-HOUSE CAPABILITY FOR QUALITY ASSURANCE OF HARDWARE AND ASSEMBLIES."

THE DEVICE SOUGHT BY THIS PROCUREMENT IS A MODIFIED AND IMPROVED VERSION OF AN EARLIER SYSTEM. WHEREAS THE EXISTING DEVICE PERFORMED ONLY ONE FUNCTION, THE NEW DEVICE IS TO BE DESIGNED TO PROVIDE FLEXIBILITY TO SELECTIVELY PERFORM A NUMBER OF FUNCTIONS. TWO PROTOTYPES ARE TO BE DESIGNED AND FABRICATED FOR INSTALLATION IN AIRCRAFT EQUIPPED WITH THE EARLIER MODEL AND IN NEW AIRCRAFT. NO CHANGE IS TO BE MADE IN THE MECHANICAL OR ELECTRICAL FEATURES, PERFORMANCE, OR INTERFACE OF THE EXISTING DEVICE; NO MODIFICATION OF THE AIRFRAME OF A NEW TYPE AIRCRAFT IS TO BE REQUIRED, AND THE NEW SYSTEM SHALL BE SUITABLE FOR RETROFITTING IN CERTAIN AIRCRAFT WITH NO AIRFRAME MODIFICATION OTHER THAN THAT REQUIRED FOR INSTALLATION OF THE EARLIER MODEL.

THUS IT CAN BE SEEN THAT STRICT ADHERENCE TO THE SPECIFICATIONS IS NECESSARY TO ACCOMPLISH THE RESULT DESIRED. FLEXIBILITY IN THE DEVICE EXISTED ONLY IN ITS ULTIMATE OPERATION, NOT IN ITS DESIGN OR CONFIGURATION.

IT IS REPORTED THAT NUMERICAL WEIGHTING OF FACTORS WAS, IN FACT, USED IN THE EVALUATION PROCESS, BUT SOLELY "FOR INTERNAL RATING OF PROPOSALS SOMEWHAT IN THE NATURE OF A CHECK-OFF LIST TO ASSIST THE TECHNICAL PEOPLE IN APPRAISING THE CALIBRE OF THE PROPOSALS." THE REQUEST FOR PROPOSALS NEED NOT INCLUDE THE SPECIFIC WEIGHTS TO BE USED FOR THE VARIOUS EVALUATION FACTORS. B-170398, FEBRUARY 17, 1971, 50 COMP. GEN. (1971). HOWEVER, WE HAVE STATED:

" *** IT HAS BEEN OUR POSITION THAT OFFERORS SHOULD BE INFORMED OF 'THE BROAD SCHEME OF SCORING TO BE EMPLOYED' AND 'REASONABLY DEFINITE INFORMATION AS TO THE DEGREE OF IMPORTANCE TO BE ACCORDED TO PARTICULAR FACTORS IN RELATION TO EACH OTHER.'" 49 COMP. GEN. 229, 230-231 (1969).

WE ARE OF THE OPINION THAT ALL PROPOSERS SHOULD HAVE BEEN ADVISED OF REASONABLY DEFINITE INFORMATION AS TO THE RELATIVE IMPORTANCE ALLOTTED THE FACTORS USED FOR EVALUATION PURPOSES, ALTHOUGH NOT NECESSARILY THE NUMERICAL WEIGHTS TO BE USED.

NEVERTHELESS, THE ADMINISTRATIVE DEFICIENCY IN THIS REGARD DID NOT AFFECT THE SELECTION OF THE CONTRACTOR. TRACOR'S PROPOSAL WAS REJECTED NOT AS A RESULT OF THE WEIGHTED EVALUATION, BUT BECAUSE THE PROPOSAL DID NOT MEET THE REQUIREMENTS IN CERTAIN KEY AREAS. AS AN EXAMPLE, THE ADMINISTRATIVE OFFICE NOTES THAT THE TRACOR DESIGN UTILIZED A NUMBER OF INTERCHANGEABLE JUMPER CABLES BASED ON AN ASSUMPTION CONCERNING MISSION REQUIREMENTS WHICH WOULD NOT REQUIRE THE JUMPER CABLES TO BE STOWED ABOARD. THE SPECIFICATION REQUIRES THAT THE JUMPER CABLES "SHALL BE PROVIDED WITH AN EASILY ACCESSIBLE STOWAGE ON THEIR RECEIVER COMPONENT." OTHER INSTANCES OF FAILURE TO MEET THE REQUIREMENTS ARE:

"REINSTALLATION OF UNDETERMINED NUMBERS OF DIFFERENT JUMPERS REQUIRE LABORIOUS AIRCRAFT PANEL REMOVAL AND REPLACEMENT *** INSTEAD OF BEING QUICKLY AND EASILY REMOVABLE.

"JUMPERS WILL INTERFERE WITH EXISTING COMPONENTS OR SPACE REQUIRED BY SUCH COMPONENTS ABOARD SOME AIRCRAFT *** ." CONCERNING FIGURE 2 ON PAGE 5 OF THE TRACOR PROPOSAL:

"28 VOLTS DC CAN BE APPLIED TO PIN C OR D AMONG OTHER UNIDENTIFIED TERMINALS ON AN INTERMIXED PROGRAMMER AND CAUSE ERRONEOUS OPERATION IN THE EVENT THE SYSTEM IS ARMED.

"THREE ADDITIONAL WIRES ARE NEEDED BETWEEN COCKPIT CONTROL AND PROGRAMMER AND THESE WILL REQUIRE ECP AND AIRFRAME CHANGES IN AIRCRAFT WITH NON CO- LOCATED COCKPIT CONTROL PANEL AND PROGRAMMER UNIT."

THE SPECIFICATIONS SPECIFICALLY STATED THAT NO MODIFICATION OF AIRFRAME IS TO BE REQUIRED OTHER THAN FOR INSTALLATION OF THE EARLIER MODEL DEVICE; SWITCHES ARE TO BE SELF-PROTECTED, AND JUMPER CABLES ARE TO BE READILY ACCESSIBLE AND STOWED IN THE DEVICE.

YOUR CONTENTION THAT "MEANINGFUL DISCUSSIONS" WERE NOT HELD IS EQUALLY WITHOUT MERIT." WE HAVE HERETOFORE STATED AT 48 COMP. GEN. 314, 317 (1968), THAT:

"WITH REGARD TO THE NATURE AND EXTENT OF NEGOTIATIONS TO BE CONDUCTED WITH OFFERORS, ASPR 3-805.1, IN IMPLEMENTATION OF 10 U.S.C. 2304(G), REQUIRES THAT 'WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED]"

IT SHOULD BE NOTED THAT THE DISCUSSIONS MAY BE WRITTEN. "ORAL" DISCUSSIONS ARE NOT REQUIRED. HERE, THE INITIAL PROPOSAL OF ALL PROPOSERS WAS FOUND NOT TO MEET THE SPECIFICATION REQUIREMENTS. WRITTEN NEGOTIATION WAS UNDERTAKEN WITH ALL PROPOSERS BY ADVISING EACH PROPOSER OF THE WEAKNESS IN EACH PROPOSAL. OPPORTUNITY WAS AFFORDED TO REVISE THE PROPOSAL TO MAKE IT CONFORM TO THE SOLICITATION (SPECIFICATIONS). YOUR PROPOSAL AS REVISED STILL DID NOT MEET THE REQUIREMENTS. THEREFORE, FURTHER NEGOTIATION WITH YOUR FIRM ORAL OR WRITTEN, WAS NOT REQUIRED.

ACCORDINGLY, FOR THE REASONS STATED ABOVE YOUR PROTEST MUST BE DENIED.