BNUMBER:  B-274566; B-274566.2
DATE:  November 27, 1996
TITLE:  Harris Corporation

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Matter of:Harris Corporation

File:     B-274566; B-274566.2

Date:November 27, 1996

Dorn C. McGrath III, Esq., and Richard L. Moorhouse, Esq., Holland & 
Knight, for the protester.
Kenneth S. Kramer, Esq., and Nancy R. Wagner, Esq., Fried, Frank, 
Harris, Shriver & Jacobson, for Raytheon Electronic Systems, Raytheon 
Company, an intervenor.
Vera Meza, Esq., and Walter Harbort, Jr., Esq., Department of the 
Army, for the agency.
Linda S. Lebowitz, Esq., Office of the General Counsel, GAO, 
participated in the preparation of the decision.

DIGEST

Where the solicitation required offerors to propose fixed prices and 
provided that options, if exercised, would not necessarily be 
exercised in a manner to guarantee continuous production, and where 
the protester states in its best and final offer, after discussions 
regarding these requirements, that it reserved the right to recover 
additional costs associated with breaks in production in the option 
periods, the protester's proposal is properly rejected as technically 
unacceptable since the firm took exception to the solicitation's 
material fixed-price and option requirements.

DECISION

Harris Corporation protests the award of a contract to Raytheon 
Electronic Systems, Raytheon Company, under request for proposals 
(RFP) No. DAAB07-96-R-A509, issued by the Department of the Army for 
the fabrication, integration, test, and delivery of Tri-Band Tactical 
Terminals (T3(H)s) for battlefield satellite terminal communications.  
Harris challenges the rejection of its proposal as technically 
unacceptable.

We deny the protests.

The RFP contemplated the award of a firm, fixed-price contract for the 
T3(H) units for a basic contract period and five 24-month option 
periods to the offeror whose proposal represented the best value to 
the government, technical evaluation factors, price, and performance 
risk considered.[1]  As relevant to these protests, the RFP included 
clause H-4, captioned "Option for Increased Quantity--Separately 
Priced Line Item."  Paragraph (e) of this clause provides that the 
"[e]valuation of options will not obligate the Government to exercise 
the option(s)," and paragraph (g) provides that:

     "[t]he Government may exercise subsequent options if prior option 
     years are not exercised (i.e. [(sic)] if the Government does not 
     exercise Option I, the Government still has the right to exercise 
     Option II).  Exercise of subsequent years is not dependent upon 
     exercise of the prior year option."

In its initial proposal, submitted in April 1996, under a section 
captioned "Other Conditions and Assumptions," Harris addressed clause 
H-4, stating that:

     "The prices for the Option Period hardware CLINS/SLINS do not 
     contain startup or non-recurring cost[s] provided for in the 
     basic period, but are dependent upon steady work flowing through 
     the T3(H) Focused Factories.  Consequently, Harris reserves the 
     right to recover cost[s] associated with breaks in the T3(H) 
     production flow associated with loss of learning, idle resources 
     and personnel disruptions."  (Emphasis added.)

By letter dated June 24, the contracting officer notified Harris that 
the agency had completed its initial evaluation.  The contracting 
officer enclosed with this letter, among other things, items for 
negotiation (IFN) and responses to Harris's terms and conditions.  
With regard to the above quoted condition in Harris's initial 
proposal, the contracting officer stated that:

     "The Government does not warrant that options will be exercised 
     so as to facilitate a steady production flow.  As stated in RFP 
     Section H-4, Option for Increased Quantity--Separately Priced 
     Line Item, option quantities are not guaranteed and the 'exercise 
     of subsequent [option] years is not dependent upon exercise of 
     the prior year option.'"  (Emphasis added.)  

The contracting officer also enclosed with her June 24 letter a model 
contract for Harris, explaining that "if [Harris] is the successful 
offeror, [Harris] will be required to sign this document.  Therefore, 
please review the model contract and provide comments as necessary 
with your IFN responses."  Harris's model contract contained RFP 
clause H-4, "Option for Increased Quantity--Separately Priced Line 
Item," including paragraphs (e) and (g) as quoted above.[2]  In 
addition, in response to a previous question posed by Harris 
concerning the submission of alternate proposals, the contracting 
officer responded that "alternate proposals are acceptable with the 
exception of:  a) an alternate proposal that changes the contract 
type."  The contracting officer afforded Harris an opportunity to 
revise its proposal by submitting proposal revision change pages.  
With respect to RFP clause H-4 and the fixed-price contract-type 
requirement of the RFP, Harris expressly continued to reserve the 
right to recover additional costs associated with breaks in the T3(H) 
production in the option periods.

In July and August, the contracting officer conducted three more 
rounds of written discussions with Harris.  During these discussions, 
the contracting officer furnished additional IFNs to Harris and 
responses to Harris's unresolved terms and conditions.  As discussions 
proceeded, the contracting officer also furnished any amendments to 
the RFP and change pages to Harris's model contract to reflect terms 
and conditions accepted by the agency.  During this time, the 
contracting officer did not issue any change pages involving RFP 
clause H-4 or the fixed-price contract-type requirement of the RFP.  
After each round of written discussions, Harris was afforded an 
opportunity to revise its proposal by submitting proposal revision 
change pages.  As reflected in Harris's proposal revisions, after the 
second round of discussions, Harris expressly continued to reserve the 
right to recover additional costs associated with breaks in production 
in the option periods; however, Harris's proposal revisions after the 
last two rounds of written discussions were silent regarding this 
condition.

In August, the contracting officer also conducted successive rounds of 
oral discussions with Harris.  The matters focused on during oral 
discussions included, for example, previously unresolved terms and 
conditions in Harris's proposal, the agency's responses thereto, and 
the final dispositions.  These matters were summarized and confirmed 
by the contracting officer by letter dated August 13.  At this time, 
the contracting officer also furnished additional change pages to 
Harris's model contract.  None of the information in the contracting 
officer's August 13 letter or in the change pages to Harris's model 
contract reflected acceptance by the agency of Harris's condition 
reserving the right to recover additional costs associated with breaks 
in production in the option periods or a decision by the agency to 
convert from a fixed-price contract to a cost reimbursable-type 
contract.  Harris's senior contracts manager "agree[d] with the 
outcomes [contained in the contracting officer's August 13 letter]," 
as evidenced by his signature in the confirmation signature block at 
the end of this letter.  Although afforded an opportunity prior to 
confirming the subject matter of oral discussions to express any 
disagreement with the contents of the contracting officer's August 13 
letter, Harris did not contact the contracting officer "[to express 
any] disagree[ment] with any of the outcomes listed [in the letter]."

By letter dated August 14, the contracting officer requested a best 
and final offer (BAFO) from Harris.  Harris was advised that major 
revisions to its proposal were not anticipated, but should it revise 
its proposal in any way, "complete and detailed support for each 
revision must be provided.  The Government reserves the right to 
reject any proposal if this rationale is not submitted with a 
revision, or, if submitted, is inadequate to establish the 
acceptability of the revised offer."  (Emphasis in original.)  The 
contracting officer warned that "[r]eductions or increases to the 
[firm fixed price] . . . must be completely explained by element of 
cost/price with narrative rationale substantiating the reductions or 
increases.  Generalized statements without this supporting rationale 
are not sufficient."  (Emphasis added.)

In its BAFO submitted on August 19, Harris again expressly reserved 
the right to recover additional costs associated with breaks in the 
T3(H) production in the option periods.[3]  Harris also reduced its 
BAFO price by more than $120 million, with a substantial portion of 
this reduction, $64 million, attributable to materials and 
subcontracts.  In this regard, Harris provided a one paragraph, seven 
sentence explanation of its significant BAFO price reduction based on 
materials and subcontracts, with the pertinent language as follows:  
"Preferred vendors were identified and tentative long term relations 
were established.  If a particular part was driving cost, substitutes 
were found.  If a substitute could not be found, where possible we 
modified the design to eliminated [(sic)] the item."

The agency rejected Harris's BAFO as technically unacceptable because, 
among other things, Harris failed to "adequately explain the rationale 
for th[e] dramatic price adjustment as was clearly required by the 
Government's request for BAFO."  The agency determined to award a 
contract to Raytheon, the offeror whose proposal was deemed to 
represent the best value to the government.

During the pendency of these protests, the agency argued that Harris's 
reserving in its BAFO of the right to recover additional costs 
associated with breaks in the T3(H) production in the option periods 
constituted exceptions to the RFP's material fixed-price and option 
requirements.  The agency maintained that such exceptions provide 
independent bases upon which to reject Harris's proposal as 
technically unacceptable.  We agree.[4]

In a negotiated procurement, a proposal which fails to conform to one 
or more of an RFP's material terms or conditions is technically 
unacceptable and cannot form the basis for an award.  Marine Pollution 
Control Corp., B-270172, Feb. 13, 1996, 96-1 CPD  para.  73 (requirement for 
fixed prices is a material term or condition of an RFP requiring such 
pricing, and a proposal that does not offer fixed prices cannot be 
accepted for award); Peckham Vocational Indus., Inc., B-257100, Aug. 
26, 1994, 94-2 CPD  para.  81 (mandatory option provisions are material 
terms of a solicitation).

In its BAFO, Harris took exception to two material requirements of the 
RFP.  First, Harris conditioned its option prices "upon steady work" 
with no breaks in production in the option periods.  This condition is 
contrary to RFP clause H-4 which did not guarantee the sequential 
exercise of options to ensure a continuous production schedule.  
Second, Harris's reservation of the right, in the event of a break in 
production in the option periods, to recover additional costs 
associated with a loss of learning, idle resources, and personnel 
disruptions is inconsistent with the fixed-price contract contemplated 
by the RFP.  Under a fixed-price contract, the risks associated with 
performance are to be borne by the contractor, not the government.  
See Cardinal Scientific, Inc., B-270309, Feb. 12, 1996, 96-1 CPD  para.  70.  
Harris's attempt to shift these risks from itself to the government is 
not in accordance with the RFP.  Accordingly, we conclude that Harris 
took exception in its BAFO to the RFP's fixed price and option 
requirements, both of which are material terms of the RFP, thereby 
rendering its BAFO technically unacceptable and making the firm 
ineligible for award.

Harris contends that it was misled in discussions concerning the RFP's 
fixed-price and option requirements.  Harris states that on June 26, 
1996, 2 days after the contracting officer initiated written 
discussions by providing Harris with a model contract which included 
RFP clause H-4, by stating that the government would not warrant the 
exercise of options so as to facilitate a steady production flow, and 
by stating that alternate proposals would be accepted so long as they 
did not change the RFP's fixed-price contract type, three of Harris's 
contract negotiators had a phone conversation with the contracting 
officer to explain the firm's approach regarding RFP clause H-4.  
According to Harris, the contracting officer told these individuals 
that there was "no problem [and that she] underst[ood] and [would] get 
back [to Harris] if [she] need[ed] more info[rmation]."[5]  Since 
there were no further conversations concerning RFP clause H-4, Harris 
states that it believed its condition had been accepted by the agency 
and would not be a basis upon which the agency could subsequently 
reject its proposal as technically unacceptable.

Harris's position that discussions were misleading is belied by the 
extensive record of discussions.  Reading the record in a light most 
favorable to Harris by assuming that RFP clause H-4 was discussed with 
the contracting officer on June 26, we believe that Harris was clearly 
on notice that the agency had not accepted its proposed condition 
reserving for itself the right to recover additional costs in the 
event of noncontinuous production in the option periods.  
Specifically, Harris's model contract as initially issued during the 
first round of written discussions on June 24 contained RFP clause 
H-4.  During this round of discussions, the contracting officer 
specifically responded to Harris's proposed condition by stating that 
the government would not warrant the exercise of options to facilitate 
a steady production flow, citing RFP clause H-4 and would not accept 
alternate proposals that made changes to the fixed-price contract type 
contemplated by the RFP.  At no time after the June 26 conversation 
did the contracting officer take any action which could be deemed to 
evidence acceptance by the agency of Harris's condition.  In this 
regard, the contracting officer did not issue any change pages to 
Harris's model contract addressing either RFP clause H-4 or the 
fixed-price contract type contemplated by the RFP.  Further, these 
requirements were not the subject of any amendments to the RFP.  
Because RFP clause H-4 was in Harris's model contract from the 
beginning of discussions through the request for BAFOs and because the 
RFP's fixed price contract type was never amended, we think Harris 
reasonably should have been aware that the agency never agreed to 
Harris's proposed condition for the reimbursement of additional costs.  
We conclude that Harris was not misled during discussions, but rather, 
unreasonably failed to express any concern to the contracting officer 
during discussions that its model contract had not changed to reflect 
its proposed condition.

Further, to the extent Harris complains about the contracting 
officer's "use of very loose 'model contracts'" as "some sort of 
control document putting each offeror on notice as to the status of 
all proposed terms and conditions," its post-award complaint is 
untimely since Harris is essentially challenging a defect in the 
procurement process which should have been raised well before 
discussions were concluded and an award was made.  Bid Protest 
Regulations, section 21.2(a)(1), 61 Fed. Reg. 39039, 39043 (1996) (to 
be codified at 4 C.F.R.  sec.  21.2(a)(1)).  We do agree, however, with 
Harris's characterization of a model contract as a type of "control 
document" so that an offeror, like Harris, would know precisely what 
the terms and conditions of the contract would be if the firm were 
selected for award.  In light of the successive rounds of written and 
oral discussions held with Harris, we think it was incumbent upon 
Harris to take advantage of the opportunities afforded during 
discussions to seek clarification of any matters in its model contract 
that it did not understand or did not agree with prior to the 
conclusion of discussions, not after the award had been made.

Because Harris's BAFO is properly rejected as technically unacceptable 
on the basis that Harris took exception to the RFP's material 
fixed-price and option requirements, both of which were subject to 
discussions, we need not address Harris's allegations concerning the 
reasonableness of the agency's evaluation of its BAFO.[6]

The protests are denied.

Comptroller General
of the United States

1. The RFP contemplated a fixed-price contract with an economic price 
adjustment for the T3(H) units during the fourth option period and a 
time-and-materials contract for contractor support services.

2. In the model contract, RFP clause H-4 was redesignated as clause 
H-9.  However, there were no substantive changes to the RFP clause.

3. Harris contends that it never removed this condition from its 
proposal during the last two rounds of written discussions only to 
reinsert the condition in its BAFO.  However, from the first round of 
discussions through the request for BAFOs, the contracting officer 
requested the submission of proposal revision change pages only.  In 
light of these instructions, we think if Harris did not intend to 
remove this condition from its proposal, there would have been no need 
for Harris to expressly include this condition in any submission after 
its initial proposal, including its BAFO.

4. During the course of a protest, an agency may justify its rejection 
of an offeror's proposal on the basis of new or additional grounds so 
long as those grounds would have provided proper support at the time 
the proposal was rejected as technically unacceptable.  See Bannum, 
Inc., B-271075 et al., May 22, 1996, 96-1 CPD  para.  248.

5. The contracting officer maintains that during the June 26 
conversation, RFP clause E-4 involving production qualifications 
testing, not RFP clause H-4 involving the exercise of options, was 
discussed.  (Following this conversation, on June 27, RFP clause E-4 
was amended and this amendment was reflected in a change page to 
Harris's model contract.)  In any event, during these protests, Harris 
submitted declarations from the individuals who participated in the 
conversation with the contracting officer.  The contracting officer 
points out a number of internal inconsistencies in these declarations.  
In response, Harris simply states that these individuals "stand by 
their statements" and offers no substantive rebuttal.

6. Harris's protest submissions are replete with mischaracterizations 
and distortions of the contents of its proposal and the agency's 
evaluation record.  For example, Harris states that when it lowered 
its BAFO price, the agency "unreasonably assumed" that the firm 
changed its technical proposal, "making a series of unilateral 
assumptions, while refusing to read, or acknowledge, the Harris 
statement in its BAFO that '[t]here [were] no changes to'" its 
technical proposal.  We point out that the "no changes" statement 
appears in the cover letter to Harris's BAFO and is explicitly 
contradicted by Harris's brief BAFO narrative attributing a 
substantial portion of its BAFO price reduction to parts 
substitutions/eliminations and design modifications.  We think the 
agency reasonably read the substantive content of Harris's BAFO and 
reasonably concluded that Harris did not provide the requisite 
"complete and detailed" explanation for this price reduction.  We 
agree with the agency that Harris did not identify in its BAFO the 
"parts" that were substituted/eliminated (and we note that Harris did 
not specify "piece parts" or "electronic piece parts") or explain how 
its design was modified to achieve such savings without compromising 
its technical approach which, prior to the submission of its BAFO, was 
considered technically acceptable.