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B-187745, AUGUST 29, 1977

B-187745 Aug 29, 1977
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ON BASIS THAT IT IS TECHNICALLY UNACCEPTABLE. IS NOT OBJECTIONABLE WHERE AGENCY GAVE PROTESTER OPPORTUNITY TO CORRECT MAJOR WEAK AREAS THROUGH WRITTEN DISCUSSIONS AND AGENCY'S TECHNICAL JUDGMENTS ARE NOT CLEARLY SHOWN TO LACK REASONABLE BASIS. 2. RECORD DOES NOT SUPPORT CONTENTION THAT MEANINGFUL NEGOTIATIONS WERE NOT CONDUCTED WITH PROTESTER IN PROCUREMENT WHERE PROTESTER WAS ASKED EIGHT VARIED TECHNICAL QUESTIONS IN LETTER WHICH REFERENCED RFP INSTRUCTIONS FOR PREPARATION OF TECHNICAL PROPOSAL AND WHICH ADVISED THAT REPLIES TO QUESTIONS MIGHT RESULT IN REVISED NUMERICAL SCORING OF PROPOSALS. 3. SCI ASSERTS THAT NASA ERRED IN REJECTING ITS PROPOSAL AS UNACCEPTABLE AND NOT WITHIN THE COMPETITIVE RANGE AFTER DISCUSSIONS WERE HELD AND THAT THESE DISCUSSIONS WERE NOT MEANINGFUL.

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B-187745, AUGUST 29, 1977

1. REJECTION OF PROPOSAL INITIALLY FOUND TO BE IN COMPETITIVE RANGE, ON BASIS THAT IT IS TECHNICALLY UNACCEPTABLE, IS NOT OBJECTIONABLE WHERE AGENCY GAVE PROTESTER OPPORTUNITY TO CORRECT MAJOR WEAK AREAS THROUGH WRITTEN DISCUSSIONS AND AGENCY'S TECHNICAL JUDGMENTS ARE NOT CLEARLY SHOWN TO LACK REASONABLE BASIS. 2. RECORD DOES NOT SUPPORT CONTENTION THAT MEANINGFUL NEGOTIATIONS WERE NOT CONDUCTED WITH PROTESTER IN PROCUREMENT WHERE PROTESTER WAS ASKED EIGHT VARIED TECHNICAL QUESTIONS IN LETTER WHICH REFERENCED RFP INSTRUCTIONS FOR PREPARATION OF TECHNICAL PROPOSAL AND WHICH ADVISED THAT REPLIES TO QUESTIONS MIGHT RESULT IN REVISED NUMERICAL SCORING OF PROPOSALS. 3. FAILURE OF AGENCY TO FURNISH COMMENTS WITHIN PERIOD PRESCRIBED BY GAO BID PROTEST PROCEDURES PROVIDES NO BASIS FOR DISREGARDING SUBSTANTIVE INFORMATION CONTAINED THEREIN.

SYSTEMS CONSULTANTS, INC.:

SYSTEMS CONSULTANTS, INC. (SCI) PROTESTS THE REJECTION OF ITS PROPOSAL SUBMITTED IN RESPONSE TO REQUEST FOR PROPOSALS (RFP) NO. 3 783203, ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION'S (NASA) LEWIS RESEARCH CENTER, CLEVELAND, OHIO FOR THE PROCUREMENT OF HARDWARE, SOFTWARE AND SERVICES FOR THE OPERATION, CALIBRATION, MAINTENANCE AND TRANSPORTATION OF A MOBILE DATA ACQUISITION SYSTEM FOR USE ON ELECTRIC POWER GENERATING WIND TURBINES.

AS THE BASES FOR ITS PROTEST, SCI ASSERTS THAT NASA ERRED IN REJECTING ITS PROPOSAL AS UNACCEPTABLE AND NOT WITHIN THE COMPETITIVE RANGE AFTER DISCUSSIONS WERE HELD AND THAT THESE DISCUSSIONS WERE NOT MEANINGFUL. NASA APPROVED THE AWARD OF A CONTRACT PRIOR TO RESOLUTION OF THE PROTEST IN ACCORDANCE WITH NASA PROCUREMENT REGULATION SECS. 2.407-8(B)(3) AND (4) (1975) AFTER DETERMINING THAT THE ITEMS TO BE PROCURED WERE URGENTLY REQUIRED AND THAT DELIVERY OF THE ITEMS WOULD BE UNDULY DELAYED BY FAILURE TO MAKE PROMPT AWARD.

AS BACKGROUND, EIGHT PROPOSALS WERE RECEIVED IN RESPONSE TO THE RFP AND WERE INITIALLY EVALUATED AS FOLLOWS:

SCORE PRICE

1. EMR 700 $ 858,792. 2. SYSTEMS CONSULTANTS 598 $ 687,004. 3. DATACOM 545 $557,256. 4. TELECOMMUNICATION SERVICES 535 $ 855,219. 5. METRIC #1 (ORIGINAL) 491 $ 884,915. 6. METRIC #2 (ALTERNATE) 482 $ 730,608. 7. WISMER & BECKER #2 (ALTERNATE 352 $1,126,200. 8. WISMER & BECKER #1 (ORIGINAL) 343 $1,267,760.

THE WISMER & BECKER PROPOSALS WERE EXCLUDED FROM THE COMPETITIVE RANGE AND NEGOTIATIONS WERE CONDUCTED WITH THE REMAINING FIVE FIRMS.

BY LETTERS DATED SEPTEMBER 29, 1976, ALL OFFERORS INITIALLY DETERMINED TO BE WITHIN THE COMPETITIVE RANGE WERE AFFORDED AN OPPORTUNITY TO RESPOND TO THE SERIES OF QUESTIONS ADDRESSED TO THEIR PROPOSALS SO THAT THEY COULD "CLARIFY" THEIR OFFERS.

NASA STATES THAT THE QUESTIONS WERE "DESIGNED TO INFORM OFFERORS OF THOSE ASPECTS OF THEIR PROPOSALS WHICH CONTAINED WEAKNESSES AND TO ELICIT CLARIFICATIONS, ELABORATIONS, ETC., IN ORDER TO ASSIST THE EVALUATION TEAM IN FULLY UNDERSTANDING THE PROPOSALS."

SCI AND THE OTHER OFFERORS TIMELY RESPONDED TO THE SEPTEMBER 29 LETTER BY SUBMITTING ADDITIONAL INFORMATION. NASA FURTHER STATES THAT THESE RESPONSES DID NOT PRODUCE ANY SIGNIFICANT CHANGE IN THE SCORING AND THE FINAL TECHNICAL RANKING LEFT THE PROPOSALS IN THE SAME RELATIVE ORDER. BASED ON THESE FINAL EVALUATIONS, THE TECHNICAL EVALUATIORS RECOMMENDED THAT FURTHER NEGOTIATIONS BE CONDUCTED ONLY WITH EMR, WHICH WAS DETERMINED TO HAVE SUBMITTED THE ONLY TECHNICALLY ACCEPTABLE PROPOSAL.

ACCORDINGLY, ON OCTOBER 26, 1976, SCI WAS INFORMED THAT ITS PROPOSAL WAS NO LONGER BEING CONSIDERED. FOLLOWING SCI'S PROTEST TO THIS OFFICE ON NOVEMBER 1, 1976, NASA ADVISED SCI THAT:

"THE NASA TECHNICAL EVALUATION TEAM, AFTER CONDUCTING WRITTEN AND ORAL DISCUSSIONS WITH YOUR COMPANY, FOUND THE PROPOSAL TO BE UNACCEPTABLE, AND THEREFORE, NOT IN THE COMPETITIVE RANGE. IT WAS ON THIS BASIS THAT THE PROPOSAL WAS NOT CONSIDERED FURTHER."

AS SCI RECOGNIZES, IT IS NOT THE FUNCTION OF THIS OFFICE TO EVALUATE PROPOSALS TO DETERMINE THEIR ELIGIBILITY FOR ULTIMATE AWARD.

DECISION

NASA ASSERTS A NUMBER OF MAJOR WEAKNESSES IN THE SCI PROPOSAL WHICH RENDERED THAT PROPOSAL UNACCEPTABLE. THE FIRST MAJOR WEAKNESS IS STATED TO BE THAT "SCI DEMONSTRATED A LACK OF UNDERSTANDING OF THE SPECIFICATIONS IN SELECTING THE PROPOSED SOFTWARE OPERATING SYSTEM FOR THE TELEMETRY CONTROL PROCESSOR."

SCI PROPOSED THE DIGITAL EQUIPMENT CORPORATION'S RSX-11M OPERATING SYSTEM (OS), CLAIMING THAT THE PROPOSED OS SPECIFICALLY MEETS, IF NOT EXCEES, THE SPECIFICATION REQUIREMENTS OF THE RFP. NASA ACKNOWLEDGES THAT THE RSX-11M OS HAS THE MINIMUM COMPONENTS REQUIRED BY THE SPECIFICATION. NASA ASSERTS, HOWEVER, THAT THE PROPOSAL FAILED TO DEMONSTRATE AN UNDERSTANDING OF THE HIGH VOLUME, DATA REQUIREMENTS OF THE SPECIFICATION, SINCE IT OFFERED THE "SMALLEST AND CONSEQUENTLY THE SLOWEST MEMBER OF THE RSX-11M FAMILY." NASA FURTHER POINTS OUT THAT WHEN ASKED WHY THE RSX-11M OS WAS SELECTED, SCI DID NOT ADDRESS SPEED/VOLUME ASPECTS OF THE REQUIREMENT, BUT RATHER EXPLAINED ITS SELECTION ON THE BASIS OF ITS FAMILIARITY WITH THE OS.

ACCORDINGLY NASA DETERMINED THAT SCI WAS DEFICIENT IN THIS REGARD.

WE BELIEVE THE RECORD DEMONSTRATES THAT NASA HAD A LEGITIMATE CONCERN WITH RESPECT TO THE PROPOSED OS AND WE ARE OF THE OPINION THAT THERE WAS A REASONABLE BASIS FOR THE AGENCY'S CONCERN.

NASA'S SECOND OBJECTION WAS THAT SCI'S DESCRIPTIONS OF THE EIGHT TASKS WHICH THE SOFTWARE WAS REQUIRED TO PERFORM WERE VAGUE AND INCOMPLETE AND THEREFORE COULD NOT BE ADEQUATELY EVALUATED BY THE TECHNICAL EVALUATION TEAM. SCI MAINTAINS THAT THE DESCRIPTIONS OF THE PROPOSED APPLICATION SOFTWARE CONTAINED SUFFICIENT INFORMATION ON WHICH THE REVIEW OF TECHNICAL SUFFICIENCY COULD BE MADE AND ASSERTS THAT NASA DOWNGRADED SCI'S PROPOSAL FOR A LACK OF INFORMATION WHICH WAS NOT CALLED FOR IN THE RFP.

ALTHOUGH SCI ADDRESSED EACH REQUIREMENT LISTED IN THE SOFTWARE SECTION OF THE STATEMENT OF WORK, IT FAILED TO DO SO IN THE DETAIL REQUIRED BY THE RFP. FOR EXAMPLE, ALTHOUGH THE INSTRUCTIONS FOR PREPARATION OF TECHNICAL PROPOSAL REQUIRED COMPLETE DESCRIPTIONS OF HOW THE ENTIRE SYSTEM OPERATES, INCLUDING "COMMANDS THE OPERATOR CAN ISSUE TO MAKE THE SYSTEM FUNCTION," AS WELL AS OF THE SOFTWARE ROUTINES, SCI GAVE ONLY TYPICAL DISPLAYS AND OPERATOR COMMANDS. THE SCI PROPOSAL MOREOVER FAILED TO STATE HOW MANY TOTAL COMMANDS WOULD BE AVAILABLE, THE FUNCTION THE COMMANDS WOULD PERFORM OR WHETHER CERTAIN COMMANDS WERE PREPROGRAMMED OR TO BE GIVEN BY THE OPERATOR.

FINALLY, IN ITS "TECHNICAL PROPOSAL CLARIFICATIONS" SCI STATED THAT "AT THIS POINT, WE HAVE NOT FINALIZED OUR COMPLETE OPERATOR INTERACTIVE SOFTWARE PACKAGE," AND IT PROPOSED TO "DEFINE THE EXACT MACHINE/OPERATOR INTERFACE AT INITIAL SCI/CONTRACTOR MEETINGS BEFORE BEGINNING PROGRAMMING OPERATIONS."

SCI CHARACTERIZES THIS APPROACH AS "AN OFTEN USED METHOD TO BEST TAILOR AN ESSENTIALLY DEVELOPED SYSTEM TO A USER'S ULTIMATE REQUIREMENTS." IT IS NASA'S POSITION THAT THE FOREGOING CONFIRMS THE AGENCY'S POS-TION THAT THE ORIGINAL DESCRIPTION OF THE SOFTWARE WAS "VAGUE AND INCOMPLETE" SINCE THE RFP BOTH CONTAINED SUFFICIENT INFORMATION TO ENABLE OFFERORS TO FULLY DESCRIBE THEIR SOFTWARE SYSTEMS AND REQUIRED COMPLETE DESCRIPTIONS (IN THE PROPOSALS) PRIOR TO AWARD, NOT DURING POST-AWARD CONFERENCES. INASMUCH AS THE ADEQUACY OF THE SOFTWARE DESCRIPTIONS ARE A MEASURE OF THE TECHNICAL ADEQUACY OF THE PROPOSAL, WE DO NOT FIND THAT THE EVALUATORS ACTED UNREASONABLY IN THIS REGARD.

NASA ALSO CONCLUDED THAT THE SCI PROPOSAL WAS WEAK "IN THE AREA OF PERSONNEL TRAINING AND EXPERIENCE" IN THEIR PROPOSED PLAN FOR PROVIDING OPERATION AND MAINTENANCE SERVICES, AND THAT SCI "FAILED TO SUBSTANTIATE THE DATA COMPRESSION ALGORITHM TEST TIMES."

WE DO NOT FIND THIS CONCLUSION TO BE UNREASONABLE. FOR EXAMPLE, SCI PROPOSED TO ASSIGN "TWO SPECIFICALLY TRAINED FIELD ENGINEERS IN FULL COMPLIANCE" WITH THE SPECIFICATIONS, WHO HAVE "WORKING BACKGROUNDS" IN THE AREAS CONCERNED, AND WHO WOULD BE ASSIGNED FULL TIME TO THE JOB 3 MONTHS PRIOR TO DELIVERY TO AID IN ALL ASPECTS OF THE SYSTEMS WORK. HOWEVER, SCI DID NOT MENTION ANY SPECIFIC EXPERIENCE OR PRIOR TRAINING OF THE PROPOSED INDIVIDUALS. WE THINK THE PROPOSAL COULD BE REGARDED AS WEAK BECAUSE OF THIS OMISSION.

OUR DISCUSSION DOES NOT ENCOMPASS ALL OF THE TECHNICAL CONCLUSIONS AND ASSERTIONS OF THE PARTIES. HOWEVER, OUR REVIEW OF THE RECORD SHOWS THAT WHILE THERE ARE FUNDAMENTAL DIFFERENCES BETWEEN NASA AND SCI WITH RESPECT TO THE ADEQUACY OF THE PROPOSAL THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE NASA TECHNICAL EVALUATION WAS UNREASONABLE.

ONCE SCI'S PROPOSAL WAS DETERMINED TO BE UNACCEPTABLE, IT COULD PROPERLY BE EXCLUDED FROM THE COMPETITIVE RANGE, THEREBY OBVIATING THE NEED FOR ANY FURTHER DISCUSSIONS WITH SCI. SEE 52 COMP.GEN. 198(1972); OPERATIONS RESEARCH, INC., 53 COMP.GEN. 593(1974), 74-1 CPD 70.

SCI FURTHER CONTENDS, HOWEVER, THAT NASA FAILED TO CONDUCT ANY MEANINGFUL NEGOTIATIONS WITH SCI. BASICALLY, SCI CLAIMS THAT THE QUESTIONS CONTAINED IN THE SEPTEMBER 29 LETTER FROM NASA WERE "VAGUE, OPEN-ENDED QUESTIONS FOR CLARIFICATION PURPOSES" AND DID NOT SERVE TO PUT SCI ON NOTICE OF ANY OF THE SPECIFIC WEAKNESSES IN ITS PROPOSAL THAT CONCERNED THE TECHNICAL EVALUATION TEAM.

THE SOURCE EVALUATION PROCEDURE OF THE RFP ADVISED ALL OFFERORS THAT NASA PROCUREMENT REGULATION DIRECTIVE (PRD) NO. 70-15 (REVISED), DATED DECEMBER 3, 1975, WOULD BE FOLLOWED IN SELECTING THE SUCCESSFUL OFFEROR. WITH RESPECT TO CONDUCTING DISCUSSIONS, THE PRD PROVIDES IN PARAGRAPH IIIE):

"THE CONTRACTING OFFICER IN WRITTEN OR ORAL DISCUSSIONS SHALL POINT OUT INSTANCES IN WHICH SOME ASPECT OF A PROPOSAL CONTAINS A WEAKNESS IN RELATION TO THE GOVERNMENT'S REQUIREMENTS. BUT, AS PROVIDED IN PARAGRAPH (2), HE SHALL NEITHER POINT OUT THE RELATIVE STRENGTHS OR WEAKNESSES OF A PROPOSAL IN RELATION TO THOSE OF OTHER PROPOSERS, NOR TRANSMIT INFORMATION WHICH COULD GIVE LEADS TO ONE PROPOSER AS TO HOW ITS PROPOSAL MAY BE IMPROVED OR WHICH COULD REVEAL A COMPETITOR'S IDEAS. HE SHALL POINT OUT PRICE ELEMENTS THAT DO NOT APPEAR TO BE JUSTIFIED AND SHALL ENCOURAGE OFFERORS TO PUT FORWARD THEIR MOST FAVORABLE PRICE PROPOSALS; BUT IN SO DOING SHALL NOT DISCUSS, DISCLOSE, OR COMPARE PRICE ELEMENTS OF ANY OTHER PROPOSER."

NASA REPORTS THAT ITS QUESTIONS WERE DESIGNED TO LEAD THE OFFEROR INTO PORTIONS OF ITS PROPOSAL WHICH WERE UNCLEAR OR LACKING INFORMATION BUT TO AVOID BEING SO SPECIFIC THAT A LEVELLING OF ALL PROPOSALS WOULD RESULT OR THAT THE ANSWERS WOULD REFLECT THE THOUGHTS OF THE EVALUATION TEAM RATHER THAN THOSE OF THE OFFEROR.

WE BELIEVE THAT THE QUESTIONS POSED IN THE SEPTEMBER 29 LETTER CONSTITUTED ADEQUATE DISCUSSIONS WITHIN THE CONFINES OF PRD 70-15 AND GENERALLY ESTABLISHED PROCUREMENT PRINCIPLES. FOR EXAMPLE, SCI COMPLAINS THAT NASA'S CONCERN THAT SCI'S PROPOSED APPLICATION SOFTWARE WOULD NOT MEET THE HIGH SPEED/HIGH VOLUME REQUIREMENT WAS NEVER CONVEYED TO SCI. THE QUESTION POSED IN THIS AREA WAS, "WHY DID YOU SELECT RSX-11M FOR THIS SYSTEM?"

WE AGREE WITH NASA THAT ITS QUESTION COULD NOT HAVE BEEN MORE SPECIFIC WITH REGARD TO THE SPEED AND VOLUME CAPABILITY OF THE RSX-11M SINCE THE QUESTION THEN WOULD HAVE GIVEN SCI THE UNDERSTANDING THE EVALUATION TEAM WAS TRYING TO MEASURE.

OTHER QUESTIONS, SUCH AS "PLEASE DESCRIBE SOFTWARE FULLY," WHICH REFERENCED PARAGRAPHS OF THE INSTRUCTIONS FOR PREPARATION OF TECHNICAL PROPOSAL, SEEM ADEQUATE TO HAVE PUT SCI ON NOTICE THAT ITS ORIGINAL PROPOSAL LACKED SUFFICIENCY OF INFORMATION IN CERTAIN AREAS.

SCI'S ARGUMENT THAT THE SEPTEMBER 29 LETTER DID NOT PUT THEM ON NOTICE OF "WEAKNESSES" IN ITS PROPOSAL SO AS TO CONSTITUTE "DISCUSSIONS" IS NOT PERSUASIVE. ALTHOUGH THE NASA LETTER DID NOT CONTAIN THE WORDS "WEAKNESSES" OR "DEFICIENCY," IT POSED TWELVE WRITTEN QUESTIONS TO SCI, EIGHT OF WHICH RELATED TO THE TECHNICAL PROPOSAL, AND SCI HAD THE OPPORTUNITY TO REVISE ITS PROPOSAL IN RESPONSE TO THE QUESTIONS. UNDER THE CIRCUMSTANCES, A REASONABLE IMPORT TO BE GLEANED FROM THE VARIETY OF QUESTIONS ASKED AND THE CAVEAT THAT THE REPLIES MIGHT RESULT IN REVISED NUMERICAL SCORING OF THE PROPOSALS WAS THAT WRITTEN DISCUSSIONS WERE IN PROGRESS. SEE RANTEC DIVISION, EMERSON ELECTRIC CO., B-185764, JUNE 4, 1976, 76-1 CPD 360. MOREOVER, WHERE A PROPOSAL LACKS SUFFICIENT DETAIL, A REQUEST FOR ADDITIONAL CLARIFICATION, AMPLIFICATION AND DISCUSSION MAY BE SUFFICIENT TO PLACE THE OFFEROR ON NOTICE THAT DEFICIENCIES EXIST IN ITS PROPOSAL. ASC SYSTEMS CORPORATION, B-186865, JANUARY 26, 1977, 77-1 CPD 60.

SCI ALSO RAISES A PROCEDURAL ISSUE. SCI BELIEVES THAT NASA'S SUPPLEMENTAL SUBMISSION TO THIS OFFICE IN RESPONSE TO SCI'S TIMELY COMMENTS ON NASA'S INITIAL REPORT SHOULD BE DISREGARDED BECAUSE THE AGENCY FAILED TO FURNISH IT WITHIN THE 5-DAY PERIOD SPECIFIED IN OUR BID PROTEST PROCEDURES, 4 C.F.R. 20.6(1976). HOWEVER, THE LATE RECEIPT OF AN AGENCY REPORT DOES NOT PROVIDE A BASIS TO DISREGARD THE SUBSTANTIVE INFORMATION THEREIN. SEE VBM CORPORATION, B-182225, MARCH 5, 1975, 75-1 CPD 130. VIEW OF THE FOREGOING, THE PROTEST IS DENIED.

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