B-220644, JAN 23, 1986, 65 COMP.GEN. 230

B-220644, JAN 23, 1986, 65 COMP.GEN. 230

CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS EVALUATION - TECHNICAL ACCEPTABILITY - ADMINISTRATIVE DETERMINATION CONTRACTING AGENCIES ENJOY A REASONABLE DEGREE OF DISCRETION IN DETERMINING THE ACCEPTABILITY OF SUBMITTED TECHNICAL PROPOSALS, AND GENERAL ACCOUNTING OFFICE (GAO) THEREFORE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE AGENCY BY MAKING AN INDEPENDENT DETERMINATION UNLESS THE AGENCY'S ACTION IS CLEARLY SHOWN TO BE ARBITRARY OR IN VIOLATION OF PROCUREMENT STATUTES OR REGULATIONS. CONTRACTS - NEGOTIATION - REQUESTS FOR PROPOSALS SPECIFICATIONS - CONFORMABILITY OF EQUIPMENT, ETC. OFFERED - ADMINISTRATIVE DETERMINATION THE TERM "STATE-OF-THE-ART" MAY BE NARROWLY APPLIED AS A SOLICITATION REQUIREMENT TO MEAN ONLY THAT EACH OFFEROR'S PRODUCT BE ITS LATEST DESIGN, RATHER THAN TO MEAN ADHERENCE TO AN INDUSTRY-WIDE TECHNOLOGICAL STANDARD, SO LONG AS THE END RESULT IS NOT THE SUBMISSION OF OFFERS WITH SUCH DIFFERING LEVELS OF TECHNOLOGY THAT COMPETITION ON A MATERIALLY SIMILAR BASELINE IS EFFECTIVELY PRECLUDED. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE FUNCTION - FREE AND FULL COMPETITION OBJECTIVE A PROTESTER'S PRESUMABLE INTEREST AS A BENEFICIARY OF MORE RESTRICTIVE SPECIFICATIONS IS NOT PROTECTIBLE UNDER GENERAL ACCOUNTING OFFICE (GAO) BID PROTEST FUNCTION, WHICH IS RATHER TO ENSURE THAT THE STATUTORY REQUIREMENT FOR FULL AND OPEN COMPETITION HAVE BEEN MET.

MATTER OF: APEC TECHNOLOGY LIMITED, JAN. 23, 1986:

APEC TECHNOLOGY LIMITED PROTESTS THE AWARD OF A CONTRACT TO TELETRONIX INFORMATION SYSTEMS UNDER REQUEST FOR PROPOSALS (RFP) NO. SSA-RFP-85-0250, ISSUED BY THE SOCIAL SECURITY ADMINISTRATION (SSA), DEPARTMENT OF HEALTH AND HUMAN SERVICES. THE PROCUREMENT IS FOR THE ACQUISITION OF TELEPHONE RESPONSE UNITS (TRUS) FOR USE IN SSA'S BOSTON, CHICAGO, AND MIAMI FIELD OFFICES. APEC ESSENTIALLY COMPLAINS THAT TELETRONIX'S OFFERED EQUIPMENT IS TECHNICALLY NONCOMPLIANT WITH CERTAIN MATERIAL REQUIREMENTS OF THE SOLICITATION. WE DENY THE PROTEST.

BACKGROUND

THE TRUS BEING ACQUIRED ALLOW CALLERS TO ACCESS PRERECORDED INFORMATIONAL MESSAGES AND IN CERTAIN APPLICATIONS TO LEAVE MESSAGES. THE RFP CONTEMPLATED THE AWARD OF A FIRM-FIXED-PRICE CONTRACT AND PROVIDED THAT THE AWARD WOULD BE MADE TO THAT RESPONSIBLE OFFEROR WHOSE PROPOSAL WAS TECHNICALLY ACCEPTABLE AND WHICH OFFERED THE LOWEST PRESENT VALUE COST TO THE GOVERNMENT OVER THE 1-YEAR CONTRACT PERIOD. PRICE PROPOSALS WERE ALLOWED ON THE BASIS OF EITHER LEASE, PURCHASE, OR LEASE WITH/PURCHASE OPTION PLANS. OF THE 64 FIRMS ORIGINALLY SOLICITED, ONLY APEC AND TELETRONIC SUBMITTED PROPOSALS BY THE JULY 22, 1985, CLOSING DATE.

AT PRINCIPAL ISSUE IN THIS CASE, THE RFP PROVIDED THAT THE OFFERED TRUS WERE TO BE "STATE-OF-THE-ART" EQUIPMENT "OF THE LATEST DESIGN AND IN CURRENT PRODUCTION." THE SPECIFICATIONS ALSO REQUIRED AT PARAGRAPH C.2(B) THAT THE TRUS HAVE THE CAPABILITY TO STORE A MINIMUM OF 50 PRERECORDED MESSAGES FROM 3 TO 5 MINUTES IN LENGTH; AND AT PARAGRAPH C.2(E) REQUIRED THE CAPABILITY TO TRANSMIT "ANY MESSAGE TO ANY CALLER WITHIN AN AVERAGE TIME OF 10 SECONDS FROM THE TIME OF SELECTION." MOREOVER, PARAGRAPH C.2(G) REQUIRED THAT THE EQUIPMENT PROVIDE A CALLER VOICE MESSAGING FEATURE SO THAT CALLERS WOULD BE ABLE TO ACCESS CERTAIN PREDESIGNATED MESSAGES AND SUBSEQUENTLY RECORD A MESSAGE. PARAGRAPH C.5 REQUIRED THAT THE EQUIPMENT PROVIDE PRINTED MANAGEMENT INFORMATION WHICH WOULD CUMULATIVELY SHOW: (A) THE TOTAL NUMBER OF CALLS RECEIVED BY THE TRU; (B) THE TOTAL NUMBER OF TIMES EACH PARTICULAR PRERECORDED MESSAGE WAS ACCESSED; AND (C) THE TOTAL NUMBER OF CALLS THAT DISCONNECTED BEFORE ANY PARTICULAR MESSAGE WAS RECEIVED IN IT ENTIRELY.

ON JULY 27, SUBSEQUENT TO THE PROPOSAL CLOSING DATE, APEC SENT A LETTER TO THE CONTRACTING OFFICE WHICH ALLEGED THAT THE TRUS OFFERED BY TELETRONIX WOULD FAIL TO MEET CERTAIN MANDATORY SPECIFICATIONS DUE TO THE FACT THAT THE TELETRONIX EQUIPMENT UTILIZED CASSETTE TAPES TO STORE THE PRERECORDED MESSAGES. APEC EMPHASIZED THAT ITS OWN EQUIPMENT UTILIZED THE NEWER DISK SYSTEM TECHNOLOGY, AND THE FIRM ASSERTED THAT SUCH DISK SYSTEMS WERE MORE APPROPRIATE TO MEET SSA'S PARTICULAR REQUIREMENTS.

SSA DETERMINED FROM ITS INITIAL PRICE EVALUATION THAT APEC'S OFFER WAS LOW FOR THE CHICAGO LOCATION AND THAT TELETRONIX'S OFFER WAS LOW FOR THE BOSTON AND MIAMI LOCATIONS. (THERE WERE SOMEWHAT VARYING EQUIPMENT REQUIREMENTS AMONG THESE THREE LOCATIONS, FOR EXAMPLE, THE MIAMI LOCATION DID NOT REQUIRE THE CALLER VOICE MESSAGING FEATURE.)

SSA THEN CONDUCTED A TECHNICAL EVALUATION AND DETERMINED THAT BOTH PROPOSALS WERE TECHNICALLY UNACCEPTABLE BUT SUSCEPTIBLE TO BEING MADE ACCEPTABLE THROUGH DISCUSSIONS. ACCORDINGLY, SSA HELD ORAL DISCUSSIONS WITH BOTH FIRMS POINTING OUT THE AREAS OF PROPOSAL DEFICIENCY AND SUBSEQUENTLY ISSUED A WRITTEN REQUEST FOR BEST AND FINAL OFFERS. SSA'S REQUEST FOR BEST AND FINAL OFFERS INCLUDED AMENDMENT 0001 TO THE RFP, WHICH SPECIFICALLY CHANGED PARAGRAPH C.2(E) SO THAT THE 10-SECOND MESSAGE ACCESSING REQUIREMENT NOW APPLIED ONLY TO THE MINIMUM 50 MESSAGES TO BE STORED IN THE SYSTEM AND NOT TO "ANY MESSAGE" TO BE STORED, AS FORMERLY REQUIRED. THE AMENDMENT ALSO ADDED A REQUIREMENT THAT THE TRUS WERE TO BE INSTALLED "IN A MANNER THAT COMPLIES WITH ALL APPLICABLE BUILDING AND ELECTRICAL CODES" AND FURTHER PROVIDED THAT THE GOVERNMENT WOULD NO LONGER CONSIDER LEASE WITH/PURCHASE OPTION PLANS IN EVALUATING THE PRICE PROPOSALS.

ALTHOUGH TELETRONIX'S PRICE REMAINED UNCHANGED IN ITS BEST AND FINAL OFFER, APEC REDUCED ITS GUARANTEED EQUIPMENT "BUY BACK" OFFER FOR EACH LOCATION, THUS INCREASING BOTH ITS LEASE AND PURCHASE PLAN PRICES. /1/ ACCORDINGLY, THE FIRM'S OFFER FOR THE CHICAGO LOCATION WAS NO LONGER LOW. UPON EVALUATION OF THE REVISED TECHNICAL PROPOSALS, SSA'S PROJECT OFFICER DETERMINED THAT BOTH PROPOSALS WERE TECHNICALLY ACCEPTABLE. HOWEVER, THE CONTRACTING OFFICER DISAGREED WITH THIS DETERMINATION SINCE THE PROJECT OFFICER HAD BASED HIS FINDING ON THE RESPONSES MADE BY THE FIRMS DURING THE ORAL DISCUSSIONS, AND THE FIRMS' WRITTEN RESPONSES IN THEIR BEST AND FINAL OFFERS DID NOT REFLECT FULL COMPLIANCE WITH THE SPECIFICATIONS.

THE CONTRACTING OFFICER FELT THAT NEITHER APEC NOR TELETRONIX HAD DEMONSTRATED THAT ITS EQUIPMENT MET THE REQUIREMENT OF PARAGRAPH C.5(C) THAT THE PRINTED MANAGEMENT INFORMATION PROVIDE THE TOTAL NUMBER OF CALLS THAT DISCONNECTED BEFORE EACH PARTICULAR PRERECORDED MESSAGE WAS RECEIVED IN ITS ENTIRETY, SINCE BOTH FIRMS APPEARED TO BE PROVIDING ONLY THE TOTAL COMBINED NUMBER OF DISCONNECTS FOR ALL SYSTEM MESSAGES WITHOUT DISTINCTION. MOREOVER, THE CONTRACTING OFFICER DETERMINED THAT TELETRONIX HAD NOT SUFFICIENTLY DEMONSTRATED THAT ITS EQUIPMENT CONFORMED TO THE AMENDED REQUIREMENT OF PARAGRAPH C.2(E) THAT THE TRUS BE ABLE TO TRANSMIT ANY OF THE MINIMUM 50 PRERECORDED MESSAGES WITHIN AN AVERAGE TIME OF 10 SECONDS FROM THE TIME OF SELECTION. FURTHER, THE CONTRACTING OFFICER QUESTIONED WHETHER TELETRONIX'S EQUIPMENT MET THE REQUIREMENT OF PARAGRAPH C.2(G) FOR CALLER VOICE MESSAGING, SINCE HE FELT THAT THE SPECIFICATION REASONABLY COULD BE INTERPRETED AS REQUIRING A SINGLE RECORDING MECHANISM, AND TELETRONIX'S EQUIPMENT IN FACT UTILIZED MULTIPLE RECORDERS. FINALLY, THE CONTRACTING OFFICER DETERMINED THAT TELETRONIX HAD NOT SHOWN THAT ITS EQUIPMENT MET THE REQUIREMENTS OF PARAGRAPH C.5 (A) AND (B) THAT THE SYSTEM'S PRINTED MANAGEMENT INFORMATION SHOW BOTH THE TOTAL NUMBER OF CALLS RECEIVED BY THE TRU AND THE TOTAL NUMBER OF TIMES EACH PRERECORDED MESSAGE WAS ACCESSED.

AT THIS POINT, SSA CONSIDERED CLARIFYING THE CALLER VOICE MESSAGING SPECIFICATION TO INDICATE THAT A SINGLE RECORDER MECHANISM WAS NOT NECESSARY. (APEC HAD INTERPRETED THE SPECIFICATION AS REQUIRING A SINGLE MECHANISM IN ITS JULY 27 LETTER.) HOWEVER, SSA DETERMINED THAT A CLARIFICATION WAS NOT IN ORDER BECAUSE IT FELT THAT BOTH FIRMS COULD MEET THE REQUIREMENT UNDER EITHER INTERPRETATION. SSA THEN DETERMINED TO AMEND THE RFP BY DELETING THE REQUIREMENT AT PARAGRAPH C.5(C) FOR THE SYSTEM'S PRINTED MANAGEMENT INFORMATION TO PROVIDE THE TOTAL NUMBER OF DISCONNECTS FOR EACH PARTICULAR MESSAGE BECAUSE NEITHER FIRM APPEARED TO UNDERSTAND THE REQUIREMENT AND, IN ANY EVENT, SSA CONCLUDED THAT THE REQUIREMENT EXCEEDED ITS ACTUAL MINIMUM NEEDS.

BECAUSE OF TIME CONSTRAINTS, SSA DID NOT ISSUE A WRITTEN AMENDMENT DELETING PARAGRAPH C.5(C), BUT INFORMED BOTH OFFERORS OF THE CHANGE ORALLY. SSA REQUESTED THE SUBMISSION OF A SECOND ROUND OF BEST AND FINAL OFFERS, AND THE OFFERORS WERE ASKED TO ACKNOWLEDGE THE DELETION AND TO STATE WHETHER THERE WERE ANY CHANGES FROM THEIR ORIGINAL BEST AND FINAL OFFERS. ADDITIONALLY, TELETRONIX WAS SPECIFICALLY ASKED TO DESCRIBE HOW ITS SYSTEM WOULD COMPLY WITH THE CALLER VOICE MESSAGING REQUIREMENT AND TO PROVIDE A SAMPLE MANAGEMENT INFORMATION PRINTOUT. TELETRONIX SATISFIED SSA'S CONCERNS IN ITS REVISED BEST AND FINAL OFFER, AND ITS PROPOSAL THEREFORE WAS DEEMED TO BE TECHNICALLY ACCEPTABLE. ACCORDINGLY, SINCE TELETRONIX OFFERED THE LOWEST EVALUATED PRICE FOR ALL THREE LOCATIONS (ON A PURCHASE BASIS), THE FIRM WAS AWARDED THE CONTRACT. PERFORMANCE HAS BEEN SUSPENDED PENDING OUR RESOLUTION OF THE PROTEST.

APEC ARGUES THAT TELETRONIX'S EQUIPMENT IS TECHNICALLY NONCOMPLIANT WITH CERTAIN SPECIFICATIONS BECAUSE THE EQUIPMENT UTILIZES CASSETTE TAPES AS A RECORDING MEDIUM WHICH REPRESENT AN OLDER TECHNOLOGY. THEREFORE, APEC ASSERTS THAT THE TRUS OFFERED BY TELETRONIX ARE UNACCEPTABLE BECAUSE THEY ARE NOT "STATE-OF-THE-ART" EQUIPMENT AS CALLED FOR IN SECTION "C" OF THE RFP. APEC CONTENDS THAT TELETRONIX'S EQUIPMENT CANNOT MEET THE AVERAGE 10 -SECOND MESSAGE ACCESSING REQUIREMENT BECAUSE OF THE COROLLARY REQUIREMENT THAT THE TRUS BE ABLE TO STORE A MINIMUM OF 50 PRERECORDED MESSAGES. APEC NOTES THAT THE ORIGINAL REQUIREMENT AT PARAGRAPH C.2(E) FOR AVERAGE 10- SECOND MESSAGE ACCESSING FOR "ANY MESSAGE" WAS AMENDED TO REFER ONLY TO "ANY OF THE 50 MESSAGES"; IT IS APEC'S APPARENT VIEW THAT TELETRONIX'S EQUIPMENT CANNOT PROVIDE 10-SECOND MESSAGE ACCESSING IF MORE THAN 50 MESSAGES ARE TO BE RECORDED ON ITS CASSETTE TAPE SYSTEM, WHICH APEC BELIEVES WAS CLEARLY CONTEMPLATED BY THE RFP. APEC CONTENDS THAT PARAGRAPH C.2(E) WAS SPECIFICALLY MODIFIED FOR THE SOLE COMPETITIVE BENEFIT OF TELETRONIX AS APEC STATES THAT ITS OWN DISK SYSTEM CAN PROVIDE 10 SECOND MESSAGE ACCESSING FOR UP TO 100 MESSAGES.

MOREOVER, APEC ASSERTS THAT IT WAS IMPROPER FOR SSA TO AMEND THE RFP AT THE LAST MOMENT TO DELETE THE REQUIREMENT AT PARAGRAPH C.5(C) FOR THE SYSTEM'S PRINTED MANAGEMENT INFORMATION TO PROVIDE THE TOTAL NUMBER OF DISCONNECTS FOR EACH SPECIFIC MESSAGE. APEC ASSERTS THAT SUCH ACTION WORKED TO ITS PREJUDICE BECAUSE ITS EQUIPMENT WAS FULLY COMPLIANT WITH THE REQUIREMENT. APEC ALSO NOTES THAT SSA FAILED TO ISSUE A WRITTEN AMENDMENT CONCERNING THE DELETION OF PARAGRAPH C.5(C).

FINALLY, APEC COMPLAINS THAT IT WAS SPECIFICALLY ASKED TO VERIFY THAT ITS EQUIPMENT HAD UNDERWRITERS' LABORATORIES (UL) APPROVAL, BUT THAT THE SAME VERIFICATION WAS NOT DEMANDED OF TELETRONIX. APEC NOTES THAT THE RFP WAS AMENDED TO SPECIFY THAT OFFERORS' EQUIPMENT HAD TO COMPLY WITH ALL APPLICABLE BUILDING AND ELECTRICAL CODES FOR THE PARTICULAR LOCATIONS, BUT DID NOT REQUIRE UL APPROVAL. ACCORDINGLY, APEC BELIEVES THAT AN INITIAL REQUIREMENT FOR UL APPROVAL WAS WAIVED IN TELETRONIX'S SOLE FAVOR.

ANALYSIS

CONTRACTING AGENCIES ENJOY A REASONABLE DEGREE OF DISCRETION IN DETERMINING THE ACCEPTABILITY OF SUBMITTED TECHNICAL PROPOSALS, AND THIS OFFICE THEREFORE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE AGENCY BY MAKING AN INDEPENDENT DETERMINATION UNLESS THE AGENCY'S ACTION IS SHOWN TO BE ARBITRARY OR IN VIOLATION OF PROCUREMENT STATUTES OR REGULATIONS. RACK ENGINEERING CO., B-214988, SEPT. 10, 1984, 84-2 CPD PARA. 272. THE PROTESTER CLEARLY BEARS THE BURDEN TO SHOW THAT THE AGENCY'S TECHNICAL EVALUATION WAS UNREASONABLE. MAGNAVOX ADVANCED PRODUCTS AND SYSTEMS CO., B-215426, FEB. 6, 1985, 85-1 CPD PARA. 146. WE DO NOT BELIEVE THAT APEC HAS MET THAT BURDEN HERE.

ON THE ISSUE OF WHETHER TELETRONIX'S UTILIZATION OF A CASSETTE TAPE SYSTEM MEETS THE REQUIREMENT FOR "STATE-OF-THE ART" TECHNOLOGY, APEC, ALTHOUGH NOT DISPUTING THAT THE TELETRONIX EQUIPMENT REPRESENTS THE FIRM'S LATEST DESIGN, STRENUOUSLY URGES THAT TAPE SYSTEMS ARE A SIX YEAR-OLD TECHNOLOGY THAT HAS BEEN SUPERSEDED BY DISK SYSTEMS. THEREFORE, IN APEC'S VIEW, THE UTILIZATION OF OBSOLETE TECHNOLOGY, EVEN THOUGH IN A FIRM'S LATEST DESIGN, CANNOT BE PROPERLY CONSTRUCTED AS COMPLIANCE WITH A "STATE- OF-THE-ART" REQUIREMENT. WE DO NOT AGREE.

THE COMMON DEFINITION OF THE TERM "STATE-OF-THE-ART" IS "THE SCIENTIFIC AND TECHNICAL LEVEL ATTAINED IN A PARTICULAR INDUSTRY AT A GIVEN TIME." SEE THE RANDOM HOUSE COLLEGE DICTIONARY, 1980 REVISED EDITION, P. 1282. HOWEVER, THIS OFFICE HAS RECOGNIZED THAT THE STANDARD MAY BE MORE NARROWLY APPLIED TO MEAN ONLY THAT EACH OFFEROR'S EQUIPMENT REPRESENT ITS LATEST DESIGN, RATHER THAN TO MEAN ADHERENCE TO AN INDUSTRY-WIDE TECHNOLOGICAL STANDARD, SO LONG AS THE END RESULT IS NOT THE SUBMISSION OF OFFERS WITH SUCH DIFFERING LEVELS OF TECHNOLOGY THAT COMPETITION ON A MATERIALLY SIMILAR BASE LINE IS EFFECTIVELY PRECLUDED. HONEYWELL INFORMATION SYSTEMS, INC., B-191212, JULY 14, 1978, 78-2 CPD PARA. 39. MOREOVER, WE BELIEVE THAT THE PHRASE "THE TRU SHALL BE OF THE LATEST DESIGN AND IN CURRENT PRODUCTION" CAN ONLY BE READ TO REFER TO AN INDIVIDUAL OFFEROR'S EQUIPMENT. THUS, EVEN THOUGH THE TELETRONIX EQUIPMENT MAY UTILIZE AN OLDER TECHNOLOGY AS A RECORDING MEDIUM (IN ANY EVENT, WE DO NOT DECIDE THAT CASSETTE TAPE SYSTEMS ARE TECHNOLOGICALLY OBSOLETE AS APEC SEEMINGLY URGES), THE RECORD WOULD HAVE TO SHOW CLEARLY THAT COMPETITION BETWEEN THE TWO FIRMS WAS FUNDAMENTALLY UNEQUAL BEFORE SSA'S MORE NARROW APPLICATION OF THE "STATE-OF-THE-ART" STANDARD COULD BE CONSIDERED OBJECTIONABLE. ID.

IN OUR VIEW, THE RECORD MAKES NO SUCH SHOWING. AS SSA EXPLAINS, THE AGENCY ONLY REQUIRED THAT THE EQUIPMENT OFFERED BY A PARTICULAR OFFEROR BE THE FIRM'S LATEST TRU MODEL IN CURRENT PRODUCTION AND STATES THAT THE RFP WAS SPECIFICALLY WRITTEN SO THAT TRUS WITH DISK, TAPE ON OTHER RECORDING MEDIUMS MEETING THE MANDATORY PERFORMANCE SPECIFICATIONS WOULD BE ACCEPTABLE. FURTHERMORE, SSA EMPHASIZES THAT THE BASIS FOR AWARD WAS THE LOWEST EVALUATED PRICE FOR EQUIPMENT MEETING THE MANDATORY SPECIFICATIONS. THEREFORE, THERE WAS A COMPLETE ABSENCE OF ANY INDICATION IN THE RFP THAT THE GOVERNMENT WAS WILLING TO PAY A PREMIUM FOR EQUIPMENT REFLECTING THE LATEST INDUSTRY-WIDE TECHNOLOGICAL ADVANCE. SINCE IT IS UNDISPUTED THAT THE TELETRONIX EQUIPMENT WAS THE FIRM'S LATEST MODEL, WE THEREFORE REJECT APEC'S ASSERTION THAT IT FAILED TO MEET THE "STATE-OF-THE -ART" REQUIREMENT SET FORTH IN SECTION "C," AND WE FIND NOTHING OBJECTIONABLE IN SSA'S DESIRE TO MAXIMIZE COMPETITION BY DEVELOPING SPECIFICATIONS THAT WERE NOT RESTRICTED TO ONLY ONE RECORDING MEDIUM. CF. UNIVERSITY RESEARCH CORP., 64 COMP.GEN. 273 (1985), 85-1 CPD PARA. 210 (AWARD IMPROPER WHERE BETTER SOLICITATION DRAFTSMANSHIP COULD HAVE ACHIEVED A MORE EXTENSIVE COMPETITION). IN ESSENCE, WE BELIEVE APEC IS ACTUALLY ASSERTING THAT THE RFP SHOULD HAVE BEEN LIMITED TO OFFERS TO FURNISH ONLY DISK SYSTEM TRUS SINCE, IN THE FIRM'S VIEW, ONLY THAT NEWER TECHNOLOGY IS APPROPRIATE TO SATISFY SSA'S NEEDS. HOWEVER, WE HAVE CONSISTENTLY REFUSED TO COUNTENANCE SUCH CHALLENGES TO AN AGENCY'S BROADENING OF THE COMPETITION. SEE RICWIL, INC., ET AL., B-214625, ET AL., OCT. 17, 1984, 84-2 CPD PARA. 415. IN THIS REGARD, THE PURPOSE OF OUR ROLE IN RESOLVING BID PROTESTS IS TO ENSURE THAT THE STATUTORY REQUIREMENTS FOR FULL AND OPEN COMPETITION HAVE BEEN MET; THUS, A PROTESTER'S PRESUMABLE INTEREST AS A BENEFICIARY OF MORE RESTRICTIVE SPECIFICATIONS IS NOT PROTECTIBLE UNDER OUR BID PROTEST FUNCTION. RAY SERVICE CO., B-217218, MAY 22, 1985, 64 COMP.GEN. 528, 85-1 CPD PARA. 582. APEC HAS MADE NO SHOWING THAT SSA ACTED FRAUDULENTLY OR IN BAD FAITH IN BROADENING THE COMPETITION TO ALLOW FOR MORE THAN ONE RECORDING MEDIUM THAT MET ITS NEEDS. ID.

TO THE EXTENT APEC CONTENDS THAT THE TELETRONIX EQUIPMENT, BY UTILIZING A CASSETTE TAPE SYSTEM, IS NONCOMPLIANT WITH CERTAIN SPECIFICATIONS, IT IS CLEAR FROM THE RECORD THAT THE AGENCY CONDUCTED A THOROUGH EVALUATION OF THE TWO OFFERS AND ULTIMATELY DETERMINED THAT BOTH TRU SYSTEMS WERE ACCEPTABLE. WE BELIEVE THIS IS A CLASSIC EXAMPLE OF A PROCUREMENT IN WHICH THERE MAY BE MORE THAN ONE MEANS OF MEETING AN AGENCY'S PERFORMANCE SPECIFICATIONS. SEE A.B. DICK CO., B-207194.2, NOV. 29, 1982, 82-2 CPD PARA. 478. THUS, FOR EXAMPLE, ALTHOUGH SSA ORIGINALLY EXPRESSED DOUBT THAT TELETRONIX'S TAPE-BASED EQUIPMENT WOULD BE ABLE TO TRANSMIT THE MINIMUM 50 RECORDED MESSAGES WITHIN AN AVERAGE TIME OF 10 SECONDS FROM THE TIME OF SELECTION AS REQUIRED BY THE AMENDED PARAGRAPH C.2(E), THE EVALUATION DOCUMENTS SHOW THAT TELETRONIX, THROUGH AN OPERATIONAL TEST, DEMONSTRATED THIS CAPABILITY TO THE AGENCY'S SATISFACTION. AS TELETRONIX EXPLAINS, ITS SYSTEM "STACKS" THE MOST FREQUENTLY ACCESSED MESSAGES AROUND A "HOME POSITION" ON FOUR DIFFERENT TRACK LEVELS, THUS DRASTICALLY REDUCING THE TIME NEEDED TO TRANSMIT A MESSAGE AFTER A CALLER HAS MADE HIS SELECTION. SIMILARLY, IN ITS REVISED BEST AND FINAL OFFER, TELETRONIX EXPLAINED THAT ITS EQUIPMENT, ALTHOUGH USING MULTIPLE RECORDERS, WOULD BE ABLE TO MEET THE REQUIREMENT OF PARAGRAPH C.2(G) FOR CALLER VOICE MESSAGING SINCE EACH OF THE FOUR TRACK LEVELS IS IN CONTINUOUS OPERATION AND CAN RECORD MESSAGES WITHOUT INTERRUPTING THE MESSAGE-TRANSMITTING FUNCTION. APEC HAS NOT SHOWN THAT SSA'S DETERMINATIONS OF TECHNICAL ACCEPTABILITY ON THESE POINTS WERE ARBITRARY OR OTHERWISE IN VIOLATION OF THE PROCUREMENT STATUTES OR REGULATIONS. RACK ENGINEERING CO., B-214988, SUPRA.

ALTHOUGH WE UNDERSTAND APEC'S CONCERN THAT PARAGRAPH C.2(E) WAS AMENDED SO THAT THE 10-SECOND ACCESSING REQUIREMENT NOW APPLIED ONLY TO THE MINIMUM 50 RECORDED MESSAGES AND NOT TO ANY ADDITIONAL MESSAGES THAT MIGHT BE LATER STORED IN THE SYSTEM, WE FAIL TO FIND ANY INDICATION IN THE RECORD THAT THIS WAS DONE WITH THE EXPRESS PURPOSE OF WAIVING A MATERIAL REQUIREMENT FOR TELETRONIX'S SOLE COMPETITIVE BENEFIT. SEE A.B. DICK CO., B-207194.2, SUPRA. RATHER, IT IS A GENERAL RULE OF FEDERAL PROCUREMENT THAT SPECIFICATIONS SHOULD BE DRAFTED IN SUCH A MANNER THAT COMPETITION IS MAXIMIZED, UNLESS A RESTRICTIVE REQUIREMENT IS NECESSARY TO MEET THE GOVERNMENT'S LEGITIMATE MINIMUM NEEDS. SEE HYDRO-DREDGE CORP., B-215873, FEB. 4, 1985, 85-1 CPD PARA. 132. CONSEQUENTLY, EVEN THOUGH SSA HAS NOT EXPRESSLY STATED IN THE RECORD WHY IT DELETED PARAGRAPH C.2(E), WE MUST PRESUME THAT SSA CONCLUDED, AFTER INITIAL DISCUSSIONS, THAT THE 10-SECOND MESSAGE ACCESSING REQUIREMENT FOR MORE THAN THE MINIMUM 50 MESSAGES WAS IN EXCESS OF ITS ACTUAL NEEDS, AND THAT CONTINUED INSISTENCE ON THE REQUIREMENT WOULD ONLY SERVE TO RESTRICT THE COMPETITION UNDULY. ABSENT EVIDENCE OF FAVORITISM, FRAUD, OR INTENTIONAL MISCONDUCT BY GOVERNMENT OFFICIALS, WE WILL NOT QUESTION AN AGENCY'S DECISION TO RELAX SOLICITATION REQUIREMENTS AND THUS ENHANCE COMPETITION. EASTERN MARINE, INC., B-213945, MAR. 23, 1984, 84-1 CPD PARA. 343. NO SUCH EVIDENCE IS PRESENT HERE.

SIMILARLY, IT IS APPARENT THAT SSA DELETED THE REQUIREMENT AT PARAGRAPH C.5(C) FOR THE SYSTEM'S PRINTED MANAGEMENT INFORMATION TO PROVIDE THE TOTAL NUMBER OF DISCONNECTS FOR EACH PARTICULAR MESSAGE BECAUSE THE REQUIREMENT WAS UNNECESSARY FOR ITS ESSENTIAL MANAGEMENT INFORMATION PURPOSES. SSA'S EVALUATORS DETERMINED THAT NEITHER PROPOSAL, EVEN AFTER REVISIONS, REFLECTED AN UNDERSTANDING OF THE FEATURE AND, ALTHOUGH APEC ASSERTS THAT ITS EQUIPMENT IN FACT HAS THE CAPABILITY TO MEET THE SPECIFICATION, THIS DOES NOT ESTABLISH ANY IMPROPRIETY IN THE AGENCY'S DECISION TO DELETE PARAGRAPH C.5(C). SEE EASTERN MARINE, INC., B-213945, SUPRA. THUS, SSA DETERMINED THAT THE REQUIREMENT WAS IN EXCESS OF ITS ACTUAL MINIMUM NEEDS, AND WE WILL NOT QUESTION SUCH A DETERMINATION ABSENT A CLEAR SHOWING THAT IT HAS NO REASONABLE BASIS. FREQUENCY ELECTRONICS, INC., B-204483, APR. 5, 1982, 82-1 CPD PARA. 303. APEC HAS MADE NO SHOWING THAT SSA'S DETERMINATION IN THIS REGARD WAS UNREASONABLE.

TO THE EXTENT APEC ASSERTS THAT SSA ACTED IMPROPERLY BY NOT ISSUING A WRITTEN AMENDMENT CONCERNING THE DELETION OF PARAGRAPH C.5(C), WE HAVE HELD THAT THE FAILURE TO ISSUE A WRITTEN AMENDMENT DOES NOT CONSTITUTE A MATERIAL PROCUREMENT IMPROPRIETY WHERE ALL OFFERORS WERE INFORMED OF THE AGENCY'S CHANGED REQUIREMENTS DURING DISCUSSIONS AND WERE GIVEN THE OPPORTUNITY TO SUBMIT REVISED PROPOSALS REFLECTING THOSE CHANGES. DECILOG, INC., B-206901, APR. 5, 1983, 83-1 CPD PARA. 356. HERE, SINCE BOTH APEC AND TELETRONIX WERE ORALLY ADVISED THAT PARAGRAPH C.5(C) WAS BEING DELETED, AND THE FIRMS WERE ASKED TO ACKNOWLEDGE THE DELETION IN THEIR REVISED BEST AND FINAL OFFERS, SSA'S FAILURE TO CONFIRM THE CHANGE IN WRITING WAS ONLY A MINOR INFORMALITY WHICH WORKED NO COMPETITIVE PREJUDICE.

WITH REGARD TO APEC'S ASSERTION THAT SSA WAIVED THE REQUIREMENT FOR UL APPROVAL IN TELETRONIX'S FAVOR, THE RECORD ESTABLISHES THAT SSA INITIALLY ASKED BOTH FIRMS FOR VERIFICATION OF SUCH APPROVAL, BUT SUBSEQUENTLY DECIDED TO AMEND THE RFP TO REQUIRE THAT THE OFFERED EQUIPMENT COMPLY WITH ALL APPLICABLE BUILDING AND ELECTRICAL CODES. APPARENTLY, SSA DETERMINED THAT MERE VERIFICATION OF UL APPROVAL WAS NOT SUFFICIENT TO DEMONSTRATE THAT THE OFFERED EQUIPMENT WOULD BE ACCEPTABLE FOR OPERATIONAL USE IN EVERY LOCATION, ESPECIALLY SINCE THE AGENCY HAD SPECIFIC CONCERNS ABOUT EQUIPMENT COMPLIANCE AT THE CHICAGO SITE DUE TO PAST DIFFICULTIES IN MEETING THE CITY'S CODES. CLEARLY, SSA'S ACTIONS IN THIS MATTER WERE REASONABLE, AND WE FAIL TO SEE HOW APEC WAS HARMED THEREBY. IN ANY EVENT, THE RECORD IN FACT ESTABLISHES THAT THE POWER MODULE FOR THE TELETRONIX EQUIPMENT HAS UL APPROVAL.

THE PROTEST IS DENIED.

/1/ THE RECORD IS SOMEWHAT UNCLEAR AS TO WHY APEC MADE THIS PRICING CHANGE. ALTHOUGH THE FIRM INDICATES THAT IT REDUCED ITS "BUY BACK" OFFER AS THE RESULT OF AGENCY ADVICE, THE FIRM APPARENTLY IS NOT ALLEGING ANY IMPROPRIETY ON THE AGENCY'S PART IN THIS MATTER.