did explain the variance in the computer-generated data by referencing the results of tests conducted in Utah. See Andrew's May 13th Submission to the Navy, Attached as Ex. D to Plaintiff's Memorandum in Support of Temporary Restraining Order. Specifically, Andrew explained the deficiencies in the performance of the computer-generated model, telling the agency that:
In reality, as demonstrated during the recent test carried out in Utah, ground reflections reduce this negative effect and the summation of the total field, comprising direct and reflected, horizontal and vertical field components, as seen by the airborne beacon, produces an omni-directional radiation pattern free of nulls.
Id., Section 4.1.2 at 5. The GAO overlooks Andrew's assessment of the Utah tests in finding that the agency " discounted the awardee's data showing theoretical noncompliance with the specifications." GAO Opinion at 5. This oversight is critical because the technical evaluation team relied on Andrew's assessment of the Utah tests in concluding that Andrew was capable of complying with the specifications.
I recall the Andrew proposal stating that although their computer generated models are a good indication in actual tests -- and I recall that they were in Utah -- that when they did the actual tests the null shown in the azimuth weren't there in the actual tests because of ground reflections.
See Triano Dep. at 19.
Thus, even assuming, arguendo, that the computer-generated data are dispositive of an offeror's ability to meet the specifications, Andrew has presented a sufficient basis upon which to believe that its product could meet the specifications.
The GAO also erred in concluding that the agency was bound to make its determination of technical acceptability on the basis of the data submitted with the proposals. As the technical evaluators noted, the computer-generated data and other materials submitted with the proposal did not purport to present the actual performance of the antenna which would be built according to the RFP specifications. Rather, the materials submitted with the proposals merely displayed the limitations of existing technologies and provided the technical evaluation team with a basis upon which to discern each offeror's ability to modify the equipment or to rectify and shortcomings in the currently-available technologies when building an antenna according to the RFP specifications. Only to this extent did the data represent the offeror's ability to perform under the contract. The true test of compliance with the specifications would occur at the first article testing.
Such an approach to the evaluation of the technical proposals is rational. The antenna sought by the RFP had not yet been developed and, therefore, actual data depicting the antenna's performance was not yet available. See Chu Dep. at 57 ("You can't comply because the model actually hasn't been written yet -- I mean built yet."). Moreover, all parties agree that the computer-generated models cannot perfectly imitate real conditions under which the antenna would operate. See Defendant's Proposed Findings of Fact and Conclusions of Law, as marked-up by Plaintiff TCI at 4, para. 11 (TCI does not dispute that the computer programs do "not consider unknown variables such as uneven ground, weather, and atmospheric conditions.") In such circumstances, courts have approved procurements in which the agency predicts an offeror's ability to perform based upon the offeror's ability to provide new SRR helicopter based upon performance of offeror's currently-available model).
Given this evaluation posture, the GAo erred in concluding that Andrew's data and the accompanying submissions "prove" that the agency accepted a nonresponsive proposal and waived the requirements of the RFP. The critical question in assessing the rationality of the agency's technical evaluation is whether the agency had a reasonable basis upon which to find that Andrew could supply a product conforming to the specifications. According to TCI, the agency merely accepted promises of compliance at face value without any evaluation of the ability of each contractor to meet the specifications. The record belies this claim, however. The depositions reveal that the evaluation team examined the data presented by both offerors and found that both offerors could develop an antenna meeting the Navy's specifications given the offerors' technical expertise and the available technologies. See Chu Dep. at 44, 55, 58, 72 and 81; Triano Dep. at 26-27; Courtland Dep. at 23-24, 26-27. Because both offerors had demonstrated sufficient expertise in this area and because both offerors warranted that they would provide a product meeting the specifications at first article testing, the contracting officers had sufficient basis upon which to find that the specifications would be met by either TCI or Andrew. If the product did not comply with the specifications at the first article testing, the proposal would be deemed nonresponsive and the contract would be in default. See Courtland Dep. at 16 ("We have no idea until first article test exactly . . . where they stand"); id. at 32. See also Chu Dep. at 71-72.
Only after the evaluation team determined that both offerors presented technically acceptable proposals did the contracting officer award the contract to Andrew, the lowest-priced offeror. See Chu Dep. at 72.
B. The Navy Did Not Violate Procurement Law in Refusing to Stay Performance of the Contract.
On the tenth day after contract award, TCI timely filed its protest with the GAO. On the same day, TCI notified the Navy of its GAO protest both by telephone and by facsimile transmission. It is undisputed that the GAO did not formally advise the Navy of TCI's GAO-level protest until the fourteenth day after the contract award.
Thus, citing 31 U.S.C. § 3553(d)(1),
the Navy claimed that it was not notified of the protest by the GAO within the ten (10) day period prescribed by statute and refused to suspend contract performance. TCI contends that, by directly notifying the designated agency representative of the protest, the agency had "received notice" of the protest for purposes of triggering the 31 U.S.C. § 3553(d)(1) mandatory stay provision and was obligated to suspend contract performance.
TCI's argument lacks merit, for it flies in the face of the clear statutory language and established agency practice to the contrary. The Court addressed precisely this question in Information Resources Inc. v. United States, 676 F.Supp. 293 (D.D.C. 1987) and Bendix Field Engineering v. United States, No. 91-2733 (D.D.C., Nov. 15, 1991). Specifically, the Information Resources Court found that, given the statutory provisions codified at 31 U.S.C. § 3553, the phrase 'notice of a protest under this section' "refers to notice from the Comptroller General." Information Resources, 676 F. Supp. at 296. Notice furnished to the agency by the protestor does not activate the mandatory stay provision. Id.
The reasoning in these cases is persuasive, as this interpretation of the statute is the only interpretation which does not render § 3553(b)(1) meaningless. Moreover, this interpretation is buttressed by agency's own unambiguous regulatory provisions. See 4 C.F.R. 21.4 (b) ("When the contracting agency receives notice of a protest from the General Accounting Office after award of a contract, but within 10 days of the date of contract award, it shall immediately direct the contractor to cease contract performance . . .") (emphasis added(). Also, as the Information Systems Court pointed out, 676 F. Supp. at 296, n.4, there is a valid policy-based justification for requiring notification directly from the GAO; pursuant to 31 U.S.C. § 3554(a)(3), GAO can dismiss frivolous protests sua sponte in order to prevent unnecessary disruption of on-going contracts. Permitting a protestor's direct notification to the agency to halt an on-going contract would eviscerate GAO's ability to protect the procurement process from unnecessary delay.
TCI contends that this interpretation of the statute deprives protestors of the full ten days within which to receive the benefit of the mandatory stay provisions. See Memorandum in Support of Plaintiff's Request for a Permanent Injunction and An Order Directing Award of a Contract to TCI at 17. TCI is correct that there may exist situations, such as this one, in which protestors do not receive the benefit of the full ten days allotted by statute. However, this fact does not justify interpreting the statute and regulatory provisions in derogation of the clear language therein. Cf. West Virginia University Hospitals, Inc. v. Casey, 113 L. Ed. 2d 68, 111 S. Ct. 1138, 1148, (1991). Moreover, by empowering the GAO to dismiss meritless protests sua sponte, Congress arguably envisioned situations in which protestors would not receive the benefit of the mandatory stay, even when the protest is filed within the ten (10) day period. Furthermore, Congress did not intend for protestors to enjoy the benefit of the full ten (10) day period at the expense of an orderly and fair procurement process. By including the GAO in the notification scheme established by the statute, Congress arguably determined that there was a need for a clearly-defined "chain of command" for notification purposes. In essence, the statute encourages the GAO to employ orderly procedures for the imposition of a injunction on contract performance. Without clearly-defined procedures, the GAO could be embroiled in endless disputes as to when, and whether, notice was received by the agency, further disrupting the procurement process.
Upon consideration of the arguments of the parties at the Hearing on the Merits, the record herein and the applicable law, the Court finds that the agency did not act irrationally and did not violate applicable law and regulations in awarding the contract to Defendant-Intervenor Andrew-Canada, Inc. The Court further finds that, upon learning of the protest filed by Plaintiff TCI, Inc., the Navy had a valid legal basis upon which to refuse to suspend contract performance. Accordingly, the Plaintiff's request for permanent injunction and for award of the contract shall be denied and the above-captioned case shall be dismissed. The Court shall issue an Order of even date herewith consistent with the foregoing Opinion.
February 4, 1992
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 783 F. Supp. 1446.
ORDER - February 4, 1992, Filed
Upon consideration of the Plaintiff's request for permanent injunction and for an order directing the award of a contract, the opposition thereto, the applicable law and the record herein, and for the reasons articulated in the Court's Opinion of even date herewith, it is, by this Court, this 4 day of February, 1992,
ORDERED that the Plaintiff's request for permanent injunction and for award of a contract shall be, and hereby is, DENIED; and it is
FURTHER ORDERED that the above-captioned case shall be, and hereby is, DISMISSED.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE