BNUMBER: B-274845
DATE: January 7, 1997
TITLE: TRS Research
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Matter of:TRS Research
File: B-274845
Date:January 7, 1997
Robert G. Fryling, Esq., and Edward J. Hoffman, Esq., Blank Rome
Comisky & McCauley, for the protester.
Johnny Litman III, Esq., United States Marine Corps, for the agency.
Robert Arsenoff, Esq., and Paul I. Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that agency improperly rejected proposal as technically
unacceptable and failed to conduct meaningful discussions with the
protester is denied where discussion question reasonably apprised
protester of its proposal's technical deficiency, and protester failed
to correct the deficiency unambiguously in its best and final offer.
DECISION
TRS Research (TRS) protests the rejection of its proposal as
technically unacceptable under request for proposals (RFP) No.
M67004-96-R-0031, issued by the United States Marine Corps for
collapsible flatrack containers to be used on shipboard to hold
expeditionary airfield modules. TRS alleges that the agency failed to
conduct meaningful discussions and improperly determined that its
proposal was technically noncompliant.
We deny the protest.
The RFP was issued on June 6, 1996, with an original closing date of
July 7. Award was to be made to the responsible offeror submitting
the lowest priced technically acceptable offer. Section 3.0 of the
statement of work (SOW) provided that the minimum "clear loading"
dimensions for the containers were 224.5 inches in length, 95.5 inches
in width, and 89.79 inches in height. Section 3.3 of the SOW required
offerors to submit two complete sets of blueprint/design drawings
indicating the container measurements in U.S. measures and bearing the
stamped approval of an internationally recognized agency such as the
American Bureau of Shipping or Lloyds Register of Industrial Services.
Amendment No. 0001 was issued on July 1, making certain changes to the
SOW (but not to the dimensions or the drawing requirements) and
further defining what "clear loading" meant. The amendment also
stressed the need to submit approved drawings stating that they were
"necessary to evaluate vendors' proposals," and extended the closing
date until July 17.
On July 12, TRS' president contacted the agency contracting specialist
by telephone to discuss the amendment because he was concerned that
the changes would require the firm to obtain revised drawings, which
the protester believed could not be accomplished before the new
closing date. According to the president's account of the
conversation, the contracting specialist "advised me at that time that
it was not necessary to send in revised drawings." TRS' president
also states that he confirmed the conversation the same day by fax
indicating that the firm would provide drawings and specifications if
it was deemed necessary by the government.
According to the contracting specialist's account of the conversation,
TRS' president "asked me if I would extend the closing date . . .
because his drawings did not meet the specifications . . . and that he
would not have time to get new drawings from the manufacturer in Italy
and have them approved . . . before the 17th of July." Her statement
continues:
"I told him we could not extend the closing date because we had
to make award by 30 September 1996 or we would lose the money. I
told him that we evaluate all proposals and hold written
discussions with the offerors in the competitive range. If he
was in the competitive range he would have a chance to submit
revised drawings that would comply with the specifications
required by amendment 0001. I never told [him] that he did not
need to submit revised drawings. At the time of the
conversation, I had not seen [his] drawings and would not have
told him that he didn't have to submit revised drawings. That
would be tantamount to saying that he didn't need to submit
drawings at all."
Eight offers were received by July 17. TRS' offer contained a
narrative and approved drawings which stated loading dimensions in
metric terms which, when converted to U.S. measurements, did not
comply with the minimum clear loading requirements of the RFP. On
July 31, written discussions were conducted, and the contracting
officer indicated the following deficiency to the firm:
"3.0 Weight, Ratings, and Dimensions. Weights, ratings and
dimensions are not in U.S. measurements. Conversion from metric
to U.S. measurements indicates container does not meet
specifications for minimum clear loading dimensions."
In the text of its best and final offer (BAFO), TRS agreed to meet the
dimensional requirements of the specification and repeated the clear
loading dimensions set forth in the SOW in U.S. measurements; attached
to the text was a proposed manufacturer's specification sheet with the
same U.S. measurements; however, no reference was made to modifying
the earlier submitted drawings, and no new drawings were submitted in
the BAFO. TRS' BAFO was rejected as technically unacceptable because
its text in U.S. measurements was in conflict with the unamended,
nonconforming drawing which was submitted with the initial proposal.
We think the record reasonably supports the agency's actions here.
First, under the circumstances we find the agency's version of the
July 12 conversation more plausible than TRS' version. However, even
if we were to accept the protester's version, the solicitation clearly
required the submission of compliant blueprint/design drawings, and
the necessity for submitting such drawings was reemphasized in the
amendment which indicated that they were to be the principal
evaluation tool used by the agency. Oral advice contrary to the terms
of a solicitation does not bind the government, and an offeror relies
on such advice at its own risk. Systems 4, Inc., B-270543, Dec. 21,
1995, 95-2 CPD para. 281. Accordingly, we find without merit TRS'
argument that the requirement for submitting compliant drawings had
essentially been waived.
TRS' argument that the July 31 written discussions were inadequate
because TRS was not specifically advised that its drawings were
unacceptable is also unpersuasive. The requirement for discussions
does not mean that agencies must conduct all-encompassing discussions;
rather, agencies are only required to lead offerors into those areas
of their proposals needing amplification given the context of the
procurement. Creative Management Technology, Inc., B-266299, Feb. 9,
1996, 96-1 CPD para. 61. Here, the solicitation as amended emphasized the
importance of the drawings with certified dimensions for evaluation
purposes, and the discussion question specifically focused on the need
to correct these dimensions to conform to the solicitation's
requirements; thus, discussions were adequate.
Moreover, it is evident that TRS understood the problem the agency had
with its proposal but created an ambiguity in its BAFO by failing to
submit supporting drawings, electing instead to provide a blanket
promise to comply with the specifications.
It is the offeror's duty to include sufficiently detailed information
in its proposal to establish that the equipment offered will meet the
solicitation requirements and blanket statements of full compliance
are insufficient to fulfill this obligation. AZTEK, B-229525, Mar. 2,
1988, 88-1 CPD para. 218. Where a proposal contains a blanket offer of
compliance to meet specifications and also contains conflicting
provisions which call that offer of compliance into question, the
offer is ambiguous and may properly be rejected as technically
unacceptable.
Although the narrative in TRS' and the supporting manufacturer's
statement contained compliant loading dimensions, these dimensions
were in clear conflict with the dimensions set forth in TRS' required
blueprint/design drawings. Under these circumstances, the agency had
a reasonable basis for its determination that the protester's proposal
was technically unacceptable. Id.
Finally, as to TRS' suggestion that its failure to submit revised
drawings could be waived as a minor informality, Federal Acquisition
Regulation (FAR) sec. 15.607 and 14.405 permit the waiver of minor
informalities but define such informalities as those having, e.g., a
negligible effect on quality. Insofar as the containers are intended
to store modules of a given dimension, it is simply incorrect to
assert that a failure to accommodate these necessary dimensions can be
viewed as having a negligible effect on quality. Since the failure to
submit drawings indicating compliance with critical dimensional
requirements had a significant impact on quality, it was material and
could not be waived.
The protest is denied.
Comptroller General
of the United States