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TECHNOLOGY FOR COMMUNS. INTL. v. GARRETT

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


February 4, 1992

Technology for Communications International, Inc. Plaintiff,
v.
Lawrence Garrett, III, et al., Defendants.

The opinion of the court was delivered by: CHARLES R. RICHEY

OPINION OF CHARLES R. RICHEY UNITED STATES DISTRICT JUDGE

 Pursuant to the Administrative procedure Act, 5 U.S.C. §§ 701, et seq., and the Competition in Contracting Act, 10 U.S.C. § 2304, et seq., Plaintiff Technology for Communications International, Inc. ("TCI") protests the Defendant Navy's award of a contract for 15 dual mode high frequency antennae, with options for 80 or more, to Defendant-Intervenor Andrew-Canada, Inc. ("Andrew"). Plaintiff contends that the Navy violated procurement regulations by accepting a product which did not conform to the contract specifications. Plaintiff also argues that the Navy improperly refused to stay performance under the contract upon receiving notification of the protest. With the agreement of the parties, the Court consolidated the Plaintiff's request for preliminary injunction with a hearing on the merits pursuant to Fed. R. Civ. P, 65(a)(2). See Order, TCI, Inc. v. Garrett, Civ. 91-2993 (D.D.C., Nov. 20, 1991). Upon consideration of the Plaintiff's request for permanent injunction and other relief, the opposition of the Defendant and the Defendant-Intervenor thereto, the applicable law and the record herein, the Court shall deny the Plaintiff's request for permanent injunction. This Opinion shall constitute the Court's findings of fact and conclusions of law as required by Fed. R. Civ. P. 52(a). *fn1"

 BACKGROUND

 The Navy issued RFP No. N00102-91-R-0020 on November 6, 1990 seeking a firm fixed-priced requirements contract for dual mode high frequency antennae for one base year, with options available to the Navy for four (4) subsequent years. In this negotiated procurement, the Navy promised to evaluate all offers "for technical acceptability." See Section M of the RFP, Attached as Exhibit A to Plaintiff's Motion for Temporary Restraining Order. The Navy advised that proposals "that do not conform to the requirements of the solicitation may be rejected without further evaluation, deliberation or discussion." Id. The contract would be awarded to the "low priced, technically acceptable offer." Id.

 The antenna sought by the Navy was not an "off-the-shelf" item. However, the Navy determined that a full-scale research and development effort was unnecessary given the available technologies. See Courtland Deposition at 19, 27. Thus, the Navy required each offeror to demonstrate that it could use existing technologies to meet the Navy's needs at the least possible cost to the Government. Specifically, offerors were required to demonstrate their capability to meet the technical specifications established by the Naval Electronics Systems Center, Vallejo. See Purchase Specification (Rev. A) for Dual Mode High Frequency Antenna, Attached as Exhibit B to Plaintiff's Motion for Temporary Restraining Order. Each technical proposal had to be "specific, detailed and complete" so as to "enable Government engineering personnel to make a thorough evaluation and arrive at a sound determination as to whether or not the proposed equipment will meet the requirements of the Government." RFP, Section L, Attached as Exhibit A to Plaintiff's Motion. The Navy would confirm the successful offeror's ability to provide a product according to the terms and conditions of the contract through First Article Testing; failure to "pass" First Article Testing would result in default under the contract. See, RFP, Section E, Attached as Exhibit A to Plaintiff's Motion. The Navy received three proposals in response to the RFP. One proposal was deemed technically unacceptable at the outset while the proposals submitted by the Plaintiff TCI and the Defendant-Intervenor Andrew were considered technically acceptable.

 Two specifications are at issue here. Specification 3.7.11(a) requires offerors to provide an antenna which has a "power gain across band width not less than 6dbi." See Exhibit B at p. 18, Plaintiff's Motion for Temporary Restraining Order. Andrew stated that it would "comply" with this specification and presented a chart listing the gain over average ground for Mode 1 at a high take-off angle and for Mode 2 at a low take-off angle. *fn2" TCI claimed that it was "fully compliant" at "6dbi or greater, 2-30 MHz" and also included a table illustrating the frequency characteristics of a representative antenna. *fn3"

 Specification 3.7.11(e) requires all offerors to provide antennae with an "omni-directional pattern circular within 2dB." Id. at Exhibit B, p. 18. Both TCI and Andrew warranted that the product would be omni-directional within 2dB. Andrew merely stated that it would "comply" with Specification 3.7.11(e) *fn4" while TCI stated that it was "fully compliant" and also referenced an appendix submitted along with its proposal. *fn5" The technical evaluation team thereafter advised both TCI and Andrew to submit further materials, including computer-generated models displaying the equipmenmt's respective radiation patterns, for purposes of evaluating each offeror's compliance with the 3.7.11(e) requirements. See Chu Deposition at 23-24; Triano Deposition et 21.

 At the close of the evaluations, the technical evaluation team found both proposals to be technically acceptable. See Chu Dep. at 21. Upon receiving word from the technical evaluation team that both offerors could comply with the specifications, the contracting officer awarded the contract to Andrew, the lower-priced offeror, on August 20, 1991. See Exhibit F, Plaintiff's Motion. Plaintiff filed a protest with the GAO on August 30, 1991. See Exhibit J, Plaintiff's Motion. The Navy did not suspend performance on the contract because it claimed that it did not receive notification of TCI's protest from the GAO within the ten day period established by 33 U.S.C. § 3553(d)(1).

 Despite the fact that Plaintiff's protest was pending before the GAO, Plaintiff filed a Complaint and Motion for Temporary Restraining Order in this Court on November 18, 1991. See Complaint. At a Hearing on the temporary restraining order, the parties agreed to maintain the status quo pendents lite such that the Navy would not award any options under the contract, thereby mooting Plaintiff's motion for emergency injunctive relief. See Order, TCI, Inc. v. Garrett, Civ. 91-2993 (Nov. 19, 1991). The parties also agreed that the Court should combine Plaintiff's request for preliminary injunction with a consolidated hearing on the merits, pursuant to Fed. R. Civ. P. 65(a)(2), after the GAO rendered its decision. Id. *fn6"

 The GAO granted Plaintiff TCI's protest on December 13, 1991. The GAO found that the Navy did not have a reasonable basis to accept Andrew's proposal in the face of data which GAO perceived to reveal Andrew's inability to meet RFP Specification 3.7.11(e). See GAO Opinion at 5. Alternatively, the GAO found that even if both TCI and Andrew submitted technically unacceptable offers, the Navy should amend the RFP so that all offerors could compete on the revised specifications, or to award the contract, as currently drafted, to the Plaintiff. Id. at 6. The Court now reviews the Plaintiff's claims on the basis of the record before the GAO, as supplemented by the depositions of the technical evaluation panel members and the pleadings herein. See Order, TCI, Inc. v. Garrett, Civ. 91-2993 (D.D.C., Nov. 20, 1991). *fn7"

 ANALYSIS

 As a disappointed bidder for a government contract, TCI may challenge the contract award in this Court. See Irvin Industries Canada, Ltd. v. U.S. Air Force, 288 App. D.C. 111, 924 F.2d 1068, 1072 (D.C. Cir. 1990). The Court may not substitute its judgment for that of the contracting agency and must accord special deference to an agency's technical determinations. See, e.g., M. Steinthal & Co. v. Seamans, 147 App. D.C. 221, 455 F.2d 1289, 1301 (D.C. Cir. 1971). *fn8" However, this deference to an agency's technical evaluations does not override the Court's "duty to overturn an agency procurement decision where a disappointed bidder meets its heavy burden of showing that 1) the procurement official's decision on matters committed primarily to his own discretion had no rational basis or 2) the procurement procedure involved a clear and prejudicial violation of applicable statutes or regulations." Irvin Industries, supra, 924 F.2d at 1072 (citing Minnesota Mining & Manufacturing Co. v. Schultz, 583 F. Supp. 184, 187 (D.D.C. 1984). See also Scanwell Laboratories , Inc. v. Thomas, 172 App. D.C. 281, 521 F.2d 941, 946 n.5 (D.C. Cir. 1975), cert. denied, 425 U.S. 910, 47 L. Ed. 2d 761 , 96 S. Ct. 1507 (1976); Kentron Hawaii, Limited v. Warner, 156 App. D.C. 274, 480 F.2d 1166, 1169 (D.C. Cir. 1973).

 In the instant protest, TCI makes four basic claims. First, TCI contends that the Navy irrationally awarded the contract to a non-responsive proposal due to Andrew's failure to provide adequate detail about the product and submission of information which illustrated the product's inability to meet the contract specifications. According to TCI, awarding a contract to a non-responsive offeror violates 10 U.S.C. § 2305(b)(4)(B). *fn9" See Complaint at para. 10-15. Second, TCI contends that the Navy violated Federal Acquisition Regulations (FAR) § 15.606(a) *fn10" and § 15.606(c) *fn11" by awarding the contract to Andrew under relaxed specifications without amending the solicitation in order to enable TCI to compete under the same relaxed specifications. See Complaint at para. 15-23. Third, TCI contends that it is the only responsive offeror and is therefore entitled to contract award. See Memorandum in Support of Plaintiff's Request for a Permanent Injunction and an Order Directing Award of a Contract to TCI at 2. Fourth, TCI contends that the Navy violated 31 U.S.C. § 3553(d)(1) *fn12" by refusing to stay performance of the contract upon receiving notification of the protest before the GAO. See Complaint at para. 24-29.

 A. The Agency Made a Rational Determination Regarding the Technical Acceptability of the TCI and Andrew Proposals and Did Not Relax the Specifications in the RFP for Either Offeror.

 Upon further review, the Court finds that the agency rationally evaluated the proposals and did not run afoul of applicable law and regulations. The Plaintiff's claim that Andrew did not submit enough information to enable the technical evaluation team to evaluate the proposal lacks merit. Although the GAO chided Andrew for failing to explain how its product would comply with the specifications, it did not base its decision sustaining TCI's protest on this ground. See GAO Opinion at 2. Contrary to Plaintiff's claims in this case, the deficiency in Andrew's proposal identified by the GAO is a not sufficient basis upon which the Court can find that Andrew's proposal was nonresponsive. Under the clear terms of the RFP, the agency was not obligated to reject a proposal for failure to provide specific responses for each element of the specifications. Section L of the RFP arguably envisions a situation in which an offeror supplies insufficient technical information, by providing that "offers which did not present sufficient information to permit complete technical evaluation by the Government may be rejected." (emphasis added).

 Any attempt to find the TCI proposal sufficiently detailed and the Andrew proposal fatally vague is doomed to failure. Although TCI explicitly referenced an appendix in its response to Specification 3.7.11(e), see GAO Opinion at 2, the mere mention of the appendix does not render TCI responsive and Andrew nonresponsive. In its initial submission, Andrew furnished the same type of background information about the available Spira-Cone product line as TCI submitted for its antennae. See GAO Record, Andrew Proposal Section III, Attachment 1 (Commercial description of Type 3000 Series HF Broadband Dual-Mode Spira-Cone Antennas). If anything, the record indicates that both the TCI and Andrew proposals lacked specificity. TCI's response to the inquiry for Specification 3.7.11(e) merely paraphrases the specification and makes a vague reference to TCI product-line brochures. Thus, TCI's proposal also failed to "explain how [the offeror] complies . . . or takes exception" for each numbered paragraph. See RFP, Section L (emphasis added). It is also significant that the agency requested both Andrew and TCI to submit further technical information, thereby evidencing that the agency found both proposals to be lacking in their ability to "clearly and fully demonstrate that the prospective contractor has a thorough knowledge and understanding of the requirements and has valid practical solutions for any technical problems" with respect to Specification 3.7.11(e). Id. Thus, to the extent that a specific and detailed proposal was a sine qua non for technical acceptability, the agency waived this requirement for both offerors, and TCI was in no way prejudiced thereby. See, e.g., Louisiana Dock Services, Inc., 91-1 CPD para. 206 (Feb. 25, 1991) (denying protest where agency waived delivery date requirement for both offerors for lack of competitive prejudice).

 The Court must also reject TCI's attempt to interpret Andrew's technical data as a means to demonstrate Andrew's inability to produce an antenna meeting the specifications. *fn13" Although the one-page contemporaneous "record" of the technical evaluation team's deliberation process does not completely articulate the basis of the technical evaluations, *fn14" the deposition testimony of the three members of the evaluation team evidences the rationality of the agency's award decision and upends the GAO's decision.

 The GAO accepted TCI's contention that the agency overlooked critical discrepancies in the data provided by Andrew. On this basis, the GAO concluded that the agency irrationally awarded the contract. *fn15" See GAO Opinion at 5 ("we find that the record contains no reasonable basis for the agency to select Andrew in the face of nonconformance contained in data provided by the awardee"). The GAO erred in this regard, however. The record indicates that Andrew 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. *fn16" 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. *fn17"

 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). *fn18"

 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. *fn19" 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. *fn20" Thus, citing 31 U.S.C. § 3553(d)(1), *fn21" 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.

 CONCLUSION

 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


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