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VIKONICS, INC. v. UNITED STATES

November 1, 1990

VIKONICS, INC., Plaintiff,
v.
THE UNITED STATES OF AMERICA, Defendant, and SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, Defendant-Intervenor



The opinion of the court was delivered by: PENN

 JOHN GARRETT PENN, UNITED STATES DISTRICT JUDGE.

 Plaintiff Vikonics, Inc. ("Vikonics") filed this "disappointed bidder" suit on October 2, 1990. By Order filed October 4, 1990, the Court denied Vikonics' motion for a temporary restraining order. The case is now before the Court on Vikonics' Motion for a Preliminary Injunction, filed on October 11, 1990. The Court heard argument on the motion on October 23, 1990. After careful consideration of the motion, the opposition thereto, together with the record in this case, the Court concludes that the motion should be denied for the reasons set forth below.

 I.

 The Western Currency Facility of the Bureau of Engraving and Printing (hereinafter "Bureau") is being constructed near Fort Worth, Texas, to meet the currency production needs of the United States. Contracting for the new facility is being conducted for the Bureau by the United States Corp of Engineers (hereinafter "Corps"). The Western Currency Facility is expected to begin production in January 1991. Affidavit of Eugenie E. Foster, dated October 3, 1990 (hereinafter "Foster Aff.").

 A Request for Proposals ("RFP") for the computerized integrated security system to be installed at the Western Currency Facility was issued on October 30, 1989. Affidavit of William D. Brown, dated October 18, 1990, para. 6 (hereinafter "Brown Aff."). The solicitation was re-issued by Errata on March 12, 1990. In response to the RFP as revised, five companies submitted proposals. Upon evaluation of these proposals, only Vikonics and defendant-intervenor Science Applications International Corporation ("SAIC") were determined to be in the competitive range for award.

 The specifications of the solicitation included an intercom system and a closed circuit television system ("CCTV") among other things. The RFP specified certain acceptable manufacturers for these products and also allowed the offerors to submit requests to use substitute products. Redcom Laboratories, Inc. was identified as an acceptable manufacturer for the intercom system. With respect to the CCTV system, Diamond Electronics was listed as an acceptable manufacturer.

 Paragraph 1.03(B)(1) of Section 01630 of the RFP required offerors to designate on a compliance summary form whether they were proposing the product called for by name in the solicitation or whether they were proposing an equally acceptable substitute. Additionally, each offeror was required to submit a "compliance certification" form certifying that any proposed substitute system, equipment, materials, software and other products had been thoroughly investigated and will meet or exceed standards of quality and performance of specified products. See RFP, section 01630, para. 1.03(C)(1). Paragraph 1.03(A)(3) of Section 01630 of the solicitation further states that the "Contracting Officer [would] review requests for substitutions during evaluation of proposals to determine acceptability." The RFP requires the Contracting Officer to evaluate technical data unfavorably where "deviations, departures, variations, exceptions, and divergences [might] have an adverse effect upon specified requirements . . ." RFP, section 00851, para. 1.01(F). The solicitation also states that "any resulting award of the Contract to the Offeror shall not constitute actual, or implied, approval by the Government, of any portion of such technical data." RFP, section 00851, para. 1.01(I). Finally, the RFP allows the contracting officer to reconsider approval of any substitution "if additional data indicates that substitution will not meet required performance and criteria or specified product." RFP, section 01630, para. 1.03(D)(3). If this occurs, the RFP requires the contractor to provide the specified product. Id.

 SAIC indicated in its proposal that with respect to the CCTV system, it was proposing a Burle, Inc. product instead of the Diamond, Inc. product specified in the solicitation. Additionally, with respect to the intercom system, SAIC proposed to provide a Stenophone product instead of the Redcom product specified in the solicitation. By execution of the compliance certification form, SAIC certified that its substitute products would meet or exceed RFP requirements. Plaintiff proposed, however, to provide both the Diamond CCTV product and the Redcom intercom product.

 In the evaluation of the proposals, the substitutions proposed by SAIC were noted and those elements of SAIC's proposal were evaluated. According to the Contracting Officer, there was not sufficient information included in SAIC's submission to adequately evaluate the substitution proposed on the CCTV system. See Brown Aff. at para. 36. In addition, questions were raised regarding whether SAIC's proposed substitution for intercom system complied with the RFP's requirement. Id. at para. 34. The technical evaluators, who did not have the benefit of full technical data, commented that the system was not "non-blocking." *fn1" Id.

 The evaluation plan utilized for the proposals included a complex scoring methodology to measure the degree of technical compliance of the offerors with the requirements of the RFP. Under this methodology, a score of 1000 points constituted full compliance with the RFP. Scores below 1000 points measured the shortfall in compliance and scores above 1000 points measured the extent to which RFP requirements were exceeded by an offeror. Id. at paras. 24-29.

 On the basis of the information supplied in SAIC's proposal, SAIC's technical score was down-graded with respect to the CCTV requirement and the intercom requirement. With respect to the intercom requirement, the maximum weighted score which could be achieved for full compliance was 31.2. Id. at para. 30. As a result of the information supplied by SAIC in its proposal, SAIC received a score of 24.96. Id. at para. 34. Similarly, with respect to the CCTV requirement, the maximum weighted score which could be achieved for full compliance was 4.25 points. Id. at para. 29. SAIC was given a score of 2.15 points in this category. Id. Since Vikonics proposed to provide both of the brand name products for these requirements, it received the maximum score possible for full compliance in these two categories.

 Overall, SAIC received a final score of 1,108.38 and Vikonics received a final score of 912.35. Id. at para. 43. Additionally, the price of Vikonics' proposal significantly exceeded the price of SAIC's proposal. Id. at para. 21. On July 19, 1990, the contract was awarded to SAIC. Prior to commencement of this suit, SAIC submitted the specified Diamond equipment, rather than the Burle product, for the CCTV system. Additionally, on September 7, SAIC provided additional information concerning the Stenophone intercom system, its proposed substitute. SAIC stated that the system would have 15 non-blocking channels. The government ...


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