PROCUREMENT Bid Protests GAO procedures Protests timeliness 10-day rule Adverse agency actions Protest that agency improperly relaxed specification for conveyor controls is dismissed where allegation was not raised with General Accounting Office within 10 days of initial adverse action on agency-level protest and. Agency reasonably concluded that proposal was technically acceptable. Protest that awardee may furnish a noncomplying product is dismissed. Since whether a contractor performs in accordance with solicitation requirements is a matter of contract administration. Initial proposals were submitted by ATS and Federal. Best and final offers were submitted on September 28. The agency also argues that ATS' objection to the change is untimely.
Matter of: Alpha Technical Services, Inc. File: B-250878; B-250878.2 Date: February 4, 1993
PROCUREMENT Bid Protests GAO procedures Protests timeliness 10-day rule Adverse agency actions Protest that agency improperly relaxed specification for conveyor controls is dismissed where allegation was not raised with General Accounting Office within 10 days of initial adverse action on agency-level protest and, in any event, the relaxation increased competition. PROCUREMENT Contract Management Contract performance GAO review PROCUREMENT Competitive Negotiation Offers Evaluation Technical acceptability In procurement for shipboard vertical package conveyors, where awardee's proposal did not take exception to solicitation requirements or indicate those requirements would not be met, agency reasonably concluded that proposal was technically acceptable; protest that awardee may furnish a noncomplying product is dismissed, since whether a contractor performs in accordance with solicitation requirements is a matter of contract administration, not for consideration by the General Accounting Office.
DECISION Alpha Technical Services, Inc. (ATS) protests the award of a contract to Federal Equipment Company (FEC) under request for proposals (RFP) No. N00I81-92-R-0158, issued by the Department of the Navy for shipboard vertical package conveyors. ATS asserts that the agency improperly relaxed a solicitation requirement, made award on the basis of a proposal that did not conform to RFP specifications, and improperly failed to stay performance of the contract notwithstanding the protest.
We deny the protest in part and dismiss it in part.
The RFP, issued by the Norfolk Naval Shipyard on July 27, 1992, provided for the acquisition of four shipboard vertical package conveyors. The solicitation specified frame-type conveyors, and stated that they had to "fit existing trunks and doors." In that regard, the RFP required offerors to submit detailed plans for fitting the conveyor through the trunk doors "for assembly in the trunk." The conveyors also had to be capable of handling packages up to 36 inches in width. Offerors could propose two prices--one that included first article testing (FAT), and one that did not. The agency had the option of waiving FAT based on an offeror's having provided an "identical or similar" item under prior government contracts. Award would be made on the basis of the lowest priced, technically acceptable proposal.
Amendment 0003 to the RFP, issued on August 28, established September 10 as the date for the submission of proposals; it also reduced the maximum acceptable package width from 36 inches to 30. Initial proposals were submitted by ATS and Federal. The Navy found that both proposals met the solicitation's technical requirements and demonstrated that FAT could be waived. Best and final offers were submitted on September 28. Based on FEC's lower proposed price--$437,135, compared to ATS' price of $466,035, with both prices based on waiver of FAT--the Navy awarded the contract to FEC on September 30.
ATS argues that, in issuing amendment 0003, the Navy improperly relaxed the specification for package width solely on the basis of a request from FEC, which could not meet the original specification. ATS further complains that the agency ignored a protest of the changed specification which it made to the agency on September 2. In reporting on the protest, the agency acknowledges the request from FEC; it explains, however, that it made the specification change only after reviewing its needs and determining that a width of 30 inches would meet its minimum needs and at the same time permit increased competition. The agency also argues that ATS' objection to the change is untimely.
Where a protest is first filed with the contracting agency, any subsequent protest to our Office must be filed within 10 working days after the protester has actual or constructive knowledge of initial agency adverse action regarding that protest. 4 C.F.R. Sec. 21.2(a)(3) (1992); Electronic Assistance Corp.--Recon., B-248886; B-248886.2, June 19, 1992, 92-1 CPD Para. 536. Adverse agency action includes the agency's receipt of proposals. 4 C.F.R. Sec. 21.0(f). In this case, the Navy's acceptance of initial proposals as scheduled on September 10, without first modifying the RFP as requested in ATS' September 2 protest, constituted initial adverse agency action. Id. Accordingly, the 10-day period for filing a timely protest with our Office commenced on September 10. Electronic Assistance Corp.--Recon., supra. ATS did not file its protest with our Office until October 13, more than a month later; its objection to the amended specification, consequently, is untimely.
In any event, an agency is entitled to use relaxed specifications when it reasonably concludes they can increase competition and meet its needs at the same time. Mine Safety Appliances Co., B-242379 et al., Nov. 27, 1991, 91-2 CPD Para. 506; Sea Containers Am., Inc., B-243228, July 11, 1991, 91-2 CPD Para. 45. This is the case even where the change in specification has been made for the purpose of allowing one or more specific offerors to compete. Aqua-Trol Corp., B-246473, Mar. 5, 1992, 92-1 CPD Para. 262. Here, the purpose and effect of relaxing the specification was to broaden competition; under those circumstances, we will not consider a claim such as ATS' that a specification should be more, not less, restrictive. Sea Containers Am., Inc., supra.
COMPLIANCE WITH SPECIFICATIONS
ATS asserts that FEC's conveyor failed to meet certain RFP requirements and therefore did not provide a proper basis for award. For its part, the agency states that FEC's proposal did not take exception to any specifications, and provided no reason to believe that all specifications would not be met.
In a negotiated procurement, any proposal that fails to conform to material terms and conditions of the solicitation is unacceptable and may not form the basis for award. Martin Marietta Corp., 69 Comp.Gen. 214 (1990), 90-1 CPD Para. 132. The procuring agency has primary responsibility for evaluating the technical information supplied by an offeror and determining the acceptability of the offeror's item; we will not disturb a determination of technical acceptability unless it is shown to be unreasonable. Sheffield Schaudt Grinding Sys., Inc., B-246699, Mar. 27, 1992, 92-1 CPD Para. 313. ATS first objects that, although the solicitation requires that the conveyor's electrical controls be manufactured using Cutler Hammer components, to ATS' knowledge the manufacturer of FEC's product, Kornylak Corporation, uses only Allen- Bradley components. ATS concludes that FEC's conveyor will not comply with this specification. ATS further states that it believes FEC's contract provides that inspections will be conducted at FEC's facility, not the plant of the actual manufacturer, Kornylak; such inspections, ATS maintains, will not show whether the manufacturer is complying with the solicitation's specifications.
Our review of FEC's proposal shows that FEC did not take exception to any specifications--including those for electrical controls and inspections-- and provided all information and assurances required by the RFP; the agency therefore had a reasonable basis for finding the proposal acceptable. Action Serv. Corp., B-246413; B-246413.2, Mar. 9, 1992, 92-1 CPD Para. 267.. We will not consider ATS' arguments that, in performance of the contract, the proper components will not be supplied in the finished electrical controls, or that inspections will not be adequate to determine technical compliance; whether a contractor in fact performs in accordance with solicitation requirements is a matter of contract administration that is the responsibility of the contracting agency, and is not for consideration by our Office. See 4 C.F.R. Sec. 21.3(m)(1); Honolulu Marine, Inc., B-248380, Aug. 6, 1992, 92-2 CPD Para. 87; Technology Prods. Mfg. Corp., B-238182.3; B-238182.5, Apr. 10, 1990, 90-1 CPD Para. 381.
ATS also argues that FEC's conveyor will not satisfy the RFP requirement that no modifications be made to existing trunk and door openings in order to install the conveyor. According to ATS, a conventional frame-type conveyor, the kind offered by FEC, will not fit through existing openings without first being disassembled into sections; such disassembly, however, will result in a modified product that is weaker structurally than the one specified and, because of the modification, not "identical or similar" to items delivered under previous government contracts. ATS concludes that either the item offered by FEC will require impermissible modifications to shipboard openings or, if such modifications are not made, the conveyor will have to be so substantially modified that it will not qualify for waiver of FAT.
Again, our review of FEC's proposal shows that FEC did not take exception to any specifications, gave no indication that the specifications would not be met, and therefore provided the agency a reasonable basis for finding the proposal acceptable. Action Serv. Corp., supra. First, as noted above, the solicitation specifically called for a frame-type conveyor, and required that detailed plans be submitted (1) for getting the conveyor through the trunk doors, and (2) for "assembly in the trunk." On its face, FEC's proposal offered precisely the type of conveyor required by the RFP--a frame-type conveyor requiring assembly in the trunk. FEC's proposal also provided the required detailed plans for placing the conveyor through the trunk doors and into the trunk for assembly. The proposal explained that FEC would ship the conveyor in 5- foot sections, except for one section that would be less than 5 feet to achieve the required conveyor height; a cross-sectional drawing indicated the sections would be 47 5/8 inches in width. Based on this information, the agency determined that the conveyor could be angled through the existing trunk doors without modifying them. ATS has provided no evidence or argument showing that this conclusion was incorrect.
With respect to waiver of FAT, the Navy determined that furnishing the conveyor in sections so that it could be assembled in the trunk (as contemplated by the RFP) would have no bearing on its strength, and thus would not necessitate FAT. According to the agency, in all conveyor installations sectional lengths vary with the required conveyor height; it is not the section lengths which determine the conveyor's structural integrity but, rather, the configuration of the joints connecting the sections.
ATS does not rebut the agency's explanation that conveyor height and section lengths can be adjusted without affecting structural integrity, and does not assert that the connecting joints of FEC's product would somehow be weakened by FEC's proposed configuration. ATS does assert that FEC's conveyor will require an adjustment in width, and "possibly" other modifications, to fit into the ship's trunk, but this speculation is not supported by the record. As noted above, the Navy determined from FEC's cross-sectional drawing that no dimensional adjustments would be necessary; although ATS apparently disagrees, it provides no evidence in support of its position. We conclude that the agency reasonably determined that FEC's offered conveyor satisfied all RFP requirements and that FAT waiver was appropriate.
ATS also claims that the agency improperly failed to stay performance of the contract notwithstanding the protest, as required by the Competition in Contracting Act of 1984 (CICA), 31 U.S.C. Sec. 3553(d)(1) (1988). Under CICA and our Bid Protest Regulations, a contracting agency is required to suspend contract performance if it receives notice of a protest from our Office within 10 calendar days of the date of contract award. 31 U.S.C. Sec. 3553(d)(1); 4 C.F.R. Sec. 21.4(b). In this case, the award was made on September 30, but ATS' protest was not filed in our Office (nor the agency notified of the protest) until October 13, more than 10 calendar days later. Consequently, the Navy was not required to suspend performance of the contract. See Firebird Constr. Corp.--Recon., B-246182; B-246182.2, May 27, 1992, 92-1 CPD Para. 473.
The protest is denied in part and dismissed in part.