BNUMBER: B-270138
DATE: January 17, 1996
TITLE: Mitel, Inc.
**********************************************************************
REDACTED DECISION
A protected decision was issued on the date below and was subject to a
GAO Protective Order. This version has been redacted or approved by
the parties involved for public release.
Matter of:Mitel, Inc.
File: B-270138
Date: January 17, 1996
William B. Barton, Esq., and William Welch, Esq., Barton, Mountain &
Tolle, L.L.P., for the protester.
Barbara J. Amster, Esq., Department of the Navy, for the agency.
Andrew T. Pogany, Esq., Office of the General Counsel, GAO,
participated in the preparation of the decision.
DIGEST
In expedited negotiated procurement for urgently required telephone
system for naval vessel, where solicitation requirement for detailed
technical proposals was waived by the agency for all offerors, the
agency's determination of whether proposals were technically
acceptable was properly based in the first instance on whether each
offeror unequivocally proposed to meet solicitation requirements;
agency determination, based on information outside proposals, as to
whether or not an offeror was capable of supplying the required
product within the required time frame concerns a matter of
responsibility which the General Accounting Office does not review
except in circumstances not present here.
DECISION
Mitel, Inc. protests the award of a contract to Ericsson, Inc. under
request for proposals (RFP) No. N66001-95-R-3602, issued by the
Department of the Navy for an internal telephone system for Navy ships
designated as a Ship's Service Telephone System (SSTS).[1] In its
initial protest, Mitel essentially argued that the agency, by awarding
to Ericsson, waived a solicitation requirement that each offeror's
system comply with and meet specification No. NAVSEA1-289-I-306 (Rev.
D) as a precondition of award.[2] After receipt of the agency report,
and recognizing that the RFP did not contain any prequalification
requirements for ruggedized equipment or any other qualification
requirements that had to be met prior to award,[3] the protester
argues that the agency improperly determined the Ericsson proposal to
be technically acceptable and as capable of meeting the ruggedized
technical requirement by the time of final delivery, scheduled only
months after award of the contract, without any reasonable basis for
believing that Ericsson could obtain NAVSEA approval for its equipment
within that relatively short time frame.
We dismiss the protest.
This SSTS requirement was urgent because the internal communication
system aboard the USS Germantown, based In Sasebo, Japan, had to be
urgently upgraded. The agency executed a justification and approval
(J&A) and limited competition to the three firms it believed were
capable of performing the requirements within the time frame
available, including the protester, Ericsson, and AT&T. The agency
telephonically contacted each offeror, and because of the urgent time
restraints, allowed only 7 days for proposal submission. The RFP
stated that award would be made to the responsible offeror whose
proposal was technically acceptable and proposed the lowest cost. The
RFP did not contain technical evaluation criteria but required, in
Section L, that each offeror provide detailed information "to clearly
and fully demonstrate that the prospective contractor has a thorough
knowledge and understanding of the requirements and has valid and
practical solutions for any technical problems." For each
specification listed in the solicitation, the RFP permitted each
offeror to state whether it intended to comply or take an exception
"and explain how [it] complies or how [it] takes exception." The RFP
also stated that the government "reserve[d] the right to judge which
proposal show the required capability."
Three proposals were received. While Section L of the RFP, as stated
previously, required offerors to submit detailed and complete
technical proposals, none of the offerors apparently did so,
presumably because of the time constraints for submission of proposals
(7 days).[4] The agency's technical evaluator found as follows:
"[W]e have carefully reviewed the proposals submitted by AT&T,
Mitel, and Ericsson. It appears that all three of the vendors
[have] proposed systems that will meet the minimum requirements
listed in the solicitation. Recommend that contract award go to
any of the three based on lowest price."
In making his findings, the agency's technical evaluator, in the
absence of substantive technical proposals, essentially based his
decision on personal knowledge of and past experience with the three
firms involved. The agency awarded the contract to Ericsson at a
price of $83,000; Mitel had proposed a price of [deleted] This protest
followed.
Mitel argues that although the RFP only required compliance with the
ruggedized specifications at time of final delivery, the agency still
must have had a reasonable basis for believing that the Ericsson
system could obtain NAVSEA approval by that time. Specifically, Mitel
argues that the Navy provided no reasonable basis in its technical
evaluation documents supporting its decision that Ericsson could
obtain NAVSEA approval and also had no "reasonable evidence to
conclude" that Ericsson could obtain such approval by the time for
final delivery of the equipment. Mitel states that NAVSEA had
previously revoked Ericsson's interim approval for this equipment in a
previous procurement. Mitel also argues that the agency's technical
evaluation was inadequate, and that with NAVSEA's revocation of
Ericsson's interim approval, all the evidence the Navy had at the time
of its technical evaluation showed that Ericsson could not meet the
post-award ruggedized requirements by the time of final delivery.
It is not disputed, and the record shows, that neither Mitel nor
Ericsson submitted detailed technical proposals as required by the
RFP; the record further shows that the agency thus simply waived this
requirement and almost exclusively based its evaluation on information
either independently known by the agency or on other information
outside the proposals as submitted. Given the lack of any detailed
technical narrative proposals which the agency could evaluate, the
agency's determination of the technical acceptability of the proposals
themselves had to be based, in the first instance, on whether the
offeror unequivocally proposed to meet the requirements as
specifically contained in the RFP; in this regard, the protester
itself has failed to allege or show any exception or deviation in
Ericsson's proposal from its commitment to furnish exactly what the
agency solicited. See Lago Sys., Inc., B-243529, July 31, 1991, 91-2
CPD para. 107.
The agency then determined, from information outside the proposals,
that all three firms that had submitted proposals were capable of
supplying the telephone system and that award should be based solely
on price. In the absence of specific technical evaluation criteria in
the RFP and in the absence of detailed technical proposals (which was
waived by the agency), we think that an agency determination as to
whether or not an offeror, such as Ericsson, is capable of supplying a
system at the time of final delivery in accordance with the
specifications is purely a matter of the prospective contractor's
responsibility. In awarding to Ericsson the contract, the agency
necessarily determined that the firm was a capable and responsible
contractor. Universal Shipping Co., Inc., B-223905.2, Apr. 20, 1987,
87-1 CPD para. 424. We will not review such affirmative determinations of
responsibility absent a showing of possible fraud or bad faith on the
part of the contracting officials or that definitive responsibility
criteria in the solicitation have not been met. See AJK Molded
Prods., Inc., B-229619, Feb. 1, 1988, 88-1 CPD para. 96. Mitel has not
alleged any of these exceptions, and our Office will therefore not
review the agency's determination that Ericsson could successfully
deliver a conforming product within the necessary time frame.
The protest is dismissed.
Comptroller General
of the United States
1. The SSTS was required by the RFP to be a commercial PBX with a
capacity of 50 to 180 line terminations for submarines and 200 to 2000
line terminations for surface ships. The SSTS, under the RFP's
specifications, was required "to be ruggedized to withstand the
environment onboard Navy ships."
2. According to the protester, the NAVSEA specification requires
"ruggedized, reinforced equipment and has an elaborate and extensive
testing protocol conducted by a laboratory to establish that the
equipment proposed meets the requirements of this specification." In
its initial protest, Mitel specifically argued that "[f]or the Navy to
accept [Ericsson's] product under this solicitation which was less
than or not fully tested and qualified to the ruggedized specification
constitutes a change in the terms of the specification [and
solicitation], all of which favor the Awardee to the prejudice of
[Mitel and other firms]." Thus, we find that the premise of the
protester's arguments in its initial protest was that compliance with
the NAVSEA specification was essentially a prequalification
requirement that had to be met prior to award.
3. The requirement for ruggedized equipment was in the RFP's statement
of work (the system specifications), and the RFP required that the
product had to meet this requirement only after award at the time of
final delivery and acceptance.
4. The protester does not raise Ericsson's lack of a detailed
technical narrative proposal as a protest ground.