The opinion of the court was delivered by: CHARLES R. RICHEY
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).
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.
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.
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)
while TCI stated that it was "fully compliant" and also referenced an appendix submitted along with its proposal.
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.
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).
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).
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).
See Complaint at para. 10-15. Second, TCI contends that the Navy violated Federal Acquisition Regulations (FAR) § 15.606(a)
and § 15.606(c)
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)
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 ...