BNUMBER:  B-277973 
DATE:  December 15, 1997
TITLE: Kahn Instruments, Inc., B-277973, December 15, 1997
**********************************************************************

DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective 
Order.  This redacted version has been approved for public release.
Matter of:Kahn Instruments, Inc.

File:     B-277973

Date:December 15, 1997

Mary Beth Bosco, Esq., and Lynn T. Burleson, Esq., Patton Boggs, for 
the protester.
Russell P. Spindler, Esq., Naval Air Systems Command, for the agency.
John Van Schaik, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that agency improperly evaluated protester's alternate design 
proposal for digital hygrometers as technically unacceptable and 
impermissibly made award on the basis of initial proposals is denied, 
where record shows agency reasonably concluded that the proposal was 
unacceptable due to informational deficiencies, and award to remaining 
technically acceptable offeror without discussions was consistent with 
the solicitation. 

DECISION

Kahn Instruments, Inc. protests the rejection of its proposal and the 
award of a contract to Panametrics under request for proposals (RFP) 
No. N68936-97-R-0157, issued by the Naval Air Warfare Center, Weapons 
Division for 215 digital hygrometers.  

We deny the protest.[1]

BACKGROUND

The hygrometers called for by the RFP are to be used to measure the 
water content of various gases that cool the Sidewinder AIM-9M 
missile.  Although hygrometers are commercially available, due to the 
Navy's special requirements, commercial, off-the-shelf hygrometers 
were not considered to meet the agency's needs.  The Navy developed a 
prototype hygrometer and drawings based on a commercially-available 
Panametrics hygrometer and purchased from Panametrics a quantity of 
the instruments built to the Navy's drawings.  As issued, the current 
RFP included those Navy-developed drawings and essentially permitted 
only offers meeting those drawings.  In a protest and a series of 
letters to the agency, Kahn complained that the RFP was unduly 
restrictive of competition since it did not permit offers based on 
other than the Panametrics instrument.  The Navy amended the RFP to 
permit alternative offers meeting certain listed operational 
requirements.  

The RFP and accompanying drawings required the hygrometer to be built 
into a portable carrying case with two detachable halves.  One half of 
the case is to house the hygrometer instrument itself, either the 
referenced Panametrics instrument or an acceptable alternative.  The 
other half of the case is to house a sampling system and other parts.  
The RFP also called for the sensor--the part of the system that comes 
into contact with the gas to be tested, Hearing Transcript (Tr.) at 8, 
10--to be mounted in the sampling system, not in the hygrometer 
itself.

Although commercially available hygrometers were not considered to 
meet the agency's needs without modifications, the RFP was issued as a 
commercial buy.  The RFP required that offers show:

     A technical description which shall include a comprehensive 
     statement of the offeror's understanding of the work required in 
     this solicitation and the offeror's method of approach to attain 
     contract objectives.  The technical description shall also be 
     specific, detailed, and complete enough to demonstrate that the 
     offeror has a thorough understanding of the requirements needed 
     to achieve the specifications of the products described in the 
     solicitation.  The technical description may include product 
     literature, or other documents, but shall not include 
     advertisements or unsubstantiated opinions.

The RFP stated that award would be made to the responsible offeror 
whose proposal, conforming to the solicitation, was most advantageous 
to the government, price and other factors considered.  The RFP listed 
as evaluation factors: 
(1) technical capability of the item offered to meet the government's 
requirement, (2) past performance, and (3) price, and stated that when 
combined, the first two factors were significantly more important than 
the third.  The RFP also stated that the government intended to award 
a contract without discussions with offerors so that initial proposals 
should contain the offeror's best terms.  The RFP, however, reserved 
the right for the agency to conduct discussions.

Two proposals were submitted.  Kahn's proposal, priced at [deleted], 
did not offer the Panametrics commercial hygrometer; rather it was 
based on a commercially-available Kahn Cermax hygrometer.  Kahn's 
technical proposal consisted of the following sections:

     I.    Technical Presentation Summary
     II.   Technical Description
     III.  Statement of Compliance
     IV.  First Article Testing

The Navy's technical evaluator found Kahn's proposal to be technically 
unacceptable.  Generally the evaluator concluded that, while there 
were some specifications in Kahn's proposal, the proposal did not 
explain how the complete instrument would be assembled.  Related to 
this general consideration, the evaluator concluded that Kahn's 
proposal was unacceptable due to the failure to establish compliance 
with a number of specific requirements.  Among these, the evaluator 
concluded that the proposal indicated that the sensor was to be housed 
in the hygrometer and not in the sample system, as required by the 
RFP; the sample gas is connected to the hygrometer, not the sampling 
system, as required; and the proposal did not meet a requirement that 
the proposed system function using alternating current (AC) power.  

In its proposal, Panametrics proposed to construct hygrometers in 
accordance with the RFP specifications and drawing package.  The 
Panametrics proposal, priced at $2,311,250, was considered technically 
acceptable as submitted.  The Navy reports that it awarded the 
contract to Panametrics based on its initial proposal, without 
discussions.

Kahn first disputes the Navy's conclusion that the Kahn proposal did 
not include the information required by the RFP to show that the 
proposal met the specifications.  According to Kahn, its proposal 
carefully extracted each of the Navy's requirements from the RFP and 
demonstrated Kahn's understanding and compliance with each.   Kahn 
also challenges each of the specific flaws attributed to its proposal 
by the evaluator.  In addition, Kahn argues that the Navy applied a 
different standard to its evaluation of the Panametrics proposal.  
According to Kahn, in some instances, the Panametrics proposal 
contained the same information as that contained in the Kahn proposal, 
yet in Kahn's case the Navy claims it could not understand what Kahn 
was proposing, while in Panametrics' case, the Navy had no such 
problem.  Finally, Kahn argues that in spite of the Navy's 
representation that award was made to Panametrics based on its initial 
proposal, discussions occurred with Panametrics and therefore should 
have been conducted with Kahn.

KAHN'S PROPOSAL

In reviewing a technical evaluation, we will not reevaluate proposals; 
rather, we will examine the record to ensure that the evaluation was 
reasonable and consistent with the RFP evaluation criteria and 
applicable statutes and regulations.  Advanced Am. Diving Serv., Inc., 
B-274766, Jan. 2, 1997, 97-1 CPD  para.  1 at 3.  Based on our review of the 
record, we conclude that the Navy reasonably determined that Kahn's 
alternate design proposal was technically unacceptable for lack of 
adequate supporting information.  We discuss some areas of the 
evaluation below.  

The Navy's basic problem with the Kahn proposal was its lack of 
information concerning how the firm would modify the Cermax commercial 
instrument and how that instrument would be mounted in the two-part 
case required by the RFP.  As explained, the RFP called for the 
hygrometer instrument itself to be housed in one part of the carrying 
case and the sampling system to be housed in the other, separable part 
of the case.  Concerning how the firm's commercial unit would be 
modified to fit in the two-part case, Kahn's representative testified 
that this would be done by abandoning the case for the commercial 
unit, and fastening the display and the internal parts of the 
commercial unit to a front panel, which would be mounted in a case 
meeting the requirements of the RFP.  Tr. at 29-30, 50-51.

Nonetheless, the Technical Description in Kahn's proposal appears to 
indicate that the commercial instrument, including the commercial 
case, would be provided.  The specifications on the second page of the 
Technical Description, including dimensions, weight, and other details 
of construction, describe the commercial case.  The specifications 
also include commercially available options such as a carrying bag, a 
shoulder strap and a spare battery pack, which were not required by 
the Navy's drawings.  To the Navy, regardless of other representations 
in the proposal, these references raised a question as to what Kahn 
was proposing and whether the firm understood the agency's 
requirements.  Tr. at 52-53.

In addition, beyond the problem of what the unit would look like and 
how it would fit in the case, the Navy's evaluator was concerned that 
Kahn's proposal did not meet the RFP requirement that the sensor be 
mounted in the sampling system, not in the hygrometer itself.  As 
Kahn's representative acknowledged at the hearing, the Kahn Cermax 
commercial hygrometer has an internal sensor.  Tr. at 25.  As Kahn 
notes, its proposal stated that the firm was offering the Cermax 
commercial instrument with "the optional sampling system," and that 
the "[s]ensor, transducer are mounted in sample system."  Nonetheless, 
the proposal otherwise led the Navy's evaluator to question those 
representations.  As the Navy notes, the first page of the Technical 
Description in Kahn's proposal described the firm's Cermax hygrometer.  
A paragraph on that page which begins with a description of Kahn's 
commercial Cermax instrument states that "[m]easurements are made by 
connecting the sample gas to the inlet port compression fitting and 
turning the instrument on . . . ."  In the context of that paragraph, 
the Navy's evaluator understood the reference to "the instrument" as a 
reference to the hygrometer--raising a question of whether the 
proposal complied with the RFP requirement that the sensor be located 
in the sample system.  

Kahn's response to these concerns is essentially twofold.  First, Kahn 
maintains that other sections of its proposal, in particular the 
Statement of Compliance, included information concerning how the 
instrument was to be assembled and what it would look like.  As to the 
overall configuration of the hygrometer and the sample system in the 
carrying case, Kahn points to the following language in the Statement 
of Compliance in its proposal:

     Attachment 2 Enclosure 1, Para. 1.0
     Also Enclosure 2, Para. 3.0

Kahn maintains that by means of this language, which is a reference to 
provisions in the RFP, the firm agreed to provide a configuration for 
the hygrometer and the sample system in an acceptable carrying case in 
accordance with the Navy's drawings.  That provision, Kahn argues, 
essentially incorporated into the proposal various requirements 
concerning dimensions, workmanship, assembly and construction.  

Second, Kahn argues that the RFP did not require offerors to describe 
what the assembled instrument would look like or how it would fit 
together.  Noting that the solicitation called for a technical 
description, which could include product literature that exhibited an 
understanding of the requirements needed to achieve compliance, Kahn 
argues there was no requirement that offerors provide drawings or 
sketches of the products offered.  Kahn maintains that it met the RFP 
requirements by including in its proposal a narrative description of 
its proposed product's operational capabilities--the Technical 
Presentation Summary, a narrative technical description of the product 
which included a one-page sheet outlining the salient characteristics 
of the product being offered to the Navy--the Technical Description, 
and the Statement of Compliance, which parsed out each individual 
requirement of the RFP and demonstrated how Kahn would comply.  

Notwithstanding Kahn's attempts to refute the Navy's concerns, we 
conclude that those concerns were reasonable.  Concerning the 
Statement of Compliance, while that section of Kahn's proposal appears 
to cover many of the specific requirements which are in dispute, due 
to information in other sections of the proposal, in particular the 
section labeled Technical Description, the Navy's evaluator reasonably 
questioned whether the proposal met the requirements.  In this 
respect, although Kahn asserts that its Statement of Compliance shows 
the firm's commitment to the requirements of the RFP for dimensions, 
workmanship, construction and assembly of the complete instrument, 
various provisions of the Technical Description also covered these 
matters, in some cases in a contradictory fashion.  For example, a 
page of the Technical Description labeled Specifications included the 
dimensions for the case for Kahn's commercial Cermax hygrometer, which 
Kahn concedes would not fit in the case required by the RFP.  Tr. at 
30.  Although Kahn now explains that it planned to discard the 
commercial case, this was not clear from the proposal.[2]

Moreover, although Kahn argues that those specific provisions of the 
Technical Description did not apply because those provisions dealt 
with the firm's commercial item, this was far from clear from the 
proposal.  Essentially, the problem is that the Technical Description 
section of Kahn's proposal included two pages which, although they 
appear to have been prepared specifically for this solicitation, also 
included information which related only to the Cermax commercial 
instrument and which was not intended to apply to this proposal.  To 
add to the confusion, although Kahn now discounts some of the 
information on those two pages of the Technical Description as simply 
related to its commercial instrument, Tr. at 52-54, 83-85, those pages 
also include information which Kahn has repeatedly asserted was 
prepared specifically for this proposal in order to show the actual 
product which the firm would supply.[3]

We think it is significant that the section of the proposal labeled 
"Technical Description" included these ambiguities.  As explained, the 
RFP called for a "technical description" to demonstrate the offeror's 
"understanding of the work required in this solicitation and the 
offeror's method of approach to attain contract objectives."  The 
technical description was to "be specific, detailed, and complete 
enough to demonstrate that the offeror has a thorough understanding of 
the requirements needed to achieve the specifications of the products 
described in the solicitation."  Thus, although Kahn is correct that 
there was no specific requirement of the RFP that its proposal 
describe what the assembled instrument would look like, or how it 
would fit together, the very section of the proposal which the RFP 
stated was to demonstrate an offeror's understanding of the work 
required in the RFP, in fact, caused the most confusion about Kahn's 
understanding and intentions.  Under the circumstances, the Navy's 
technical evaluator reasonably determined that Kahn's proposal was 
unacceptable as submitted.

THE PANAMETRICS PROPOSAL

As explained above, Kahn also argues that the Navy applied a different 
standard in its evaluation of the Panametrics proposal.  Kahn argues 
that, in some instances, the Panametrics proposal contained 
inconsistencies between the commercial literature in the proposal and 
other parts of the proposal--as did the Kahn proposal-- yet in Kahn's 
case, the Navy claims it could not understand what Kahn was proposing, 
while the Navy had no such problem with the Panametrics proposal.  For 
example, Kahn notes that the Panametrics proposal included commercial 
literature for the firm's commercially-available hygrometer, the 
Panametrics System 280, and that literature included the notation that 
"AC operation of the unit is not possible in this configuration."  
Thus, according to Kahn, the Navy ignored a statement of noncompliance 
in the commercial literature in the Panametrics proposal.  

We reject this contention.  While permitting alternative offers, the 
RFP called for offers to "manufacture, test and validate the design of 
the TTU-546/E, Digital Hygrometer in accordance with Government 
Baseline Drawing Number 639AS9334."  That drawing depicts the entire 
unit as designed by the Navy, based on the Panametrics commercial 
instrument.  The cover letter to the Panametrics proposal states that 
the firm was proposing "Digital Hygrometers, NAWC P/N: TTU-546/E," and 
that the proposal includes standard product literature for the firm's 
"commercial equivalent to the TTU-546/E," the System 280 Moisture 
Analyzer.[4]  In addition, the next page of the Panametrics proposal 
states that the firm is offering a quantity of "280-NAWC" units.  One 
of the drawings in the Navy's drawing package indicates that 
Panametrics is an approved source of supply for the instrument 
depicted in the drawings under its vendor part number "280-NAWC."  
Under the circumstances, it was clear that Panametrics was offering to 
supply the precise instrument identified in the Navy's drawing 
package.

DISCUSSIONS

Kahn argues that the agency should have held discussions to permit it 
to correct any deficiencies in its proposal.  However, there generally 
is no requirement that an agency hold discussions when the 
solicitation advises offerors that the agency intends to make award 
without discussions.  Federal Acquisition Regulation (FAR)  sec.  
15.610(a)(3) (June 1997); Advanced Am. Diving Serv., Inc., supra, at 
7-8. Since the solicitation advised offerors that the agency intended 
to make award without discussions, Kahn could not presume that it 
would have a chance to improve its proposal through discussions.  The 
burden was on Kahn to submit an initial proposal containing sufficient 
information to demonstrate its merits, and the protester ran the risk 
of having its proposal rejected by failing to do so.  Id.  Given that 
the solicitation advised offerors of the possibility of award without 
discussions, and our conclusion that the Navy reasonably determined 
that Kahn's proposal was unacceptable as written, there was no 
requirement for the agency to hold discussions with Kahn.[5] 

Kahn nonetheless argues that, in spite of the Navy's representation 
that it awarded the contract to Panametrics without discussions, the 
record shows that discussions were conducted with Panametrics. 
Specifically, Kahn notes that, although there is no record of any 
discussions, the contract awarded to Panametrics differs from the 
Panametrics proposal in three instances.  According to Kahn, the only 
explanation for these differences is that the Navy must have conducted 
discussions with Panametrics.  

Concerning the first of these three instances, Kahn notes that the RFP 
required the delivery and testing of a first article unit.  The RFP 
permitted waiver of the first article requirement when supplies 
identical to those called for by the RFP had previously been furnished 
and accepted by the government.  Kahn notes that the Panametrics 
proposal requested waiver of first article testing, although the 
proposal admitted that testing had not been completed on the firm's 
previously delivered units.  Kahn also notes that, in spite of the 
fact that, at the time of proposal submission, the Panametrics unit 
had not completed testing, the contract awarded to Panametrics waived 
the first article requirement.  According to Kahn, some discussions 
must have occurred between the Navy and Panametrics in order to 
approve the waiver of first article testing.

Kahn argues that discussions also must have been occurred with 
Panametrics concerning the delivery schedule, since the schedule in 
the contract differs from that proposed by Kahn.  The RFP included a 
desired delivery schedule, but also allowed offerors to propose an 
alternative delivery schedule so long as such an alternative schedule 
required delivery of the first article no later than 90 days after the 
date of the contract, and the production quantity no later than 820 
days after the date of the contract.  Panametrics proposed waiver of 
the first article requirement and a phased delivery schedule of "First 
10 units delivered in 12-14 weeks ARO [after receipt of order] - 
Remainder of units will be delivered at a rate of 10/month."  

In contrast, Kahn notes, the contract awarded to Panametrics stated a 
delivery schedule of 98 days after the date of the contract for the 
first 10 units and 737 days after the date of the contract for the 
remaining units.  Kahn maintains that the 737 days permitted by the 
contract for delivery of all units is different than the schedule in 
the Panametrics proposal.  In this regard, Kahn argues that, under the 
schedule in the Panametrics proposal, after delivery of the first ten 
units in 84 to 98 days (12 to 14 weeks), delivery of the remaining 
units at the proposed rate of 10 per month, would take 21 months, or 
644 days (using seven 30-day months and fourteen 31-day months).  
According to Kahn, since the first 10 units were to be delivered in 84 
to 98 days, and the remainder were to be delivered in an additional 
644 days, the Panametrics proposal permitted delivery of all required 
units in 728 to 742 days.  Kahn argues that discussions must have 
occurred between the Navy and Panametrics in order for the contract to 
be different than the proposal.

In response to these contentions, the Navy explains that after 
Panametrics submitted its proposal, the contract specialist 
responsible for this solicitation was informed by an agency technical 
representative that first article approval had been granted to 
Panametrics.  Based on that approval, the contract document was 
drafted to reflect waiver of the first article requirement.  
Concerning the delivery schedule, the Navy explains that, once he was 
informed of the waiver of the first article, the contract specialist 
calculated the delivery schedule for the contract based on 
Panametrics' proposal.  The Navy also reports that there was no 
contact with Panametrics concerning the delivery schedule.

We have no basis to conclude that the Navy conducted discussions with 
Panametrics.  The Navy denies there were any communications with 
Panametrics.  In addition, there was no need for discussions with 
Panametrics; any information which the Navy needed concerning either 
the first article waiver or the delivery schedule was either in the 
proposal submitted by Panametrics, or was available from agency 
sources.  In this respect, since the decision as to whether to waive 
the first article requirement was the Navy's to make, there would have 
been no reason to communicate with Panametrics concerning a waiver.  

Concerning the inconsistency between the delivery schedule in the 
Panametrics proposal and the delivery schedule in the contract, the 
proposed schedule was acceptable as submitted, and Kahn does not argue 
otherwise.  Under the circumstances, there was no reason to 
communicate with Panametrics.  Moreover, the only difference between 
the schedule in the Panametrics proposal and the contract schedule was 
that the contract included a conversion of weeks and months set forth 
in the proposal to days; even with that conversion, the contract was 
consistent with the proposal.  Under these circumstances, even if the 
Navy had communicated with Panametrics concerning the delivery 
schedule, such communication would have constituted clarifications, 
not discussions.  See FAR  sec.  15.601 (June 1997); Deployable Hosp. Sys., 
Inc., B-260778.2, B-260778.3, Feb. 12, 1996,  96-1 CPD  para.  113 at 6, n. 
4.[6]

Kahn also argues that discussions must have occurred with Panametrics 
concerning the requirement of the RFP for a small business 
subcontracting plan.  Kahn notes that the RFP incorporated by 
reference the clause located at FAR  sec.  52.219-9 (Alt. II), which states 
"Proposals submitted in response to this solicitation shall include a 
subcontracting plan . . . ."  Kahn notes that, although the 
Panametrics proposal included no such plan, the Navy's business 
clearance memorandum refers to the submission of such a plan by 
Panametrics.  According to Kahn, the submission of such a plan by 
Panametrics after proposals were due must have involved some 
discussions between the Navy and Panametrics.

We do not agree.  The requested subcontracting plan relates to an 
offeror's responsibility, even where the solicitation requests the 
offeror submit the plan with its proposal.  A.B. Dick Co., B-233142, 
Jan. 31, 1989, 89-1 CPD  para. 106 at 3.  Thus, we have found that an 
agency's request for a subcontracting plan does not constitute 
discussions or require that revised proposals be solicited from all 
offerors.  Id.[7]

The protest is denied.

Comptroller General 
of the United States

1. We conducted a hearing on this protest to receive the testimony of 
the Navy's technical evaluator and a representative of Kahn. 

2. The specific reference in the Statement of Compliance upon which 
Kahn relies also was a source of confusion and ambiguity in the 
proposal.  As noted above, the reference in the proposal was to:

            Attachment 2 Enclosure 1, Para. 1.0
            Also Enclosure 2, Para. 3.0,

Those provisions of the RFP essentially required that assembled 
hygrometers under the contract would be examined in accordance with 
the RFP specifications and drawings for compliance with requirements 
for dimensions, surface finish, workmanship, assembly, construction, 
identification plates, and stowage of loose parts.  Both provisions 
also stated that hygrometers not meeting those requirements could be 
rejected.  Although Kahn argues that its reference to those provisions 
was a commitment to meet all of the RFP requirements for dimensions, 
surface finish, workmanship, assembly, construction, identification 
plates, and storage of loose parts, we think it was reasonable for the 
Navy's evaluator to question whether Kahn had merely committed to 
examine the units for compliance with various underlying requirements, 
as a method of quality control, as opposed to committing to meet those 
underlying requirements.

3. For example, in its October 20 comments, Kahn--arguing that its 
proposal contained sufficient information to show compliance--stated 
that, in addition to its Technical Presentation Summary, its proposal 
included "a technical description of the item itself, including a 
one-page specification sheet that set forth each of the salient 
characteristics of the product."  These references are to the two 
pages of the Technical Description in question.

4. As contrasted with Kahn's proposal, there is no confusion in the 
Panametrics proposal concerning the commercial literature.  The 
commercial literature in the Panametrics proposal is clearly 
identifiable as such, so there is no ambiguity, as there was with the 
Kahn proposal, concerning whether the commercial literature took 
exception to RFP requirements.

5. Alternatively, Kahn argues that the Navy could have communicated 
with Kahn, without conducting discussions, in order to address any 
concerns the evaluator had with the firm's proposal.  According to 
Kahn, such communications would not have constituted discussions, but 
would have been simply clarifications.  This is incorrect.  Kahn's 
proposal was unacceptable.  Since discussions occur when information 
provided by an offeror is essential for determining the acceptability 
of a proposal, FAR  sec.  15.601 (June 1997), any communications with Kahn 
in order to give the firm an opportunity to make its proposal 
acceptable would have constituted discussions. 

6. Kahn also argues that the Navy improperly waived the first article 
requirement.  While the contract indicates that the first article 
requirement was waived, the Navy informs us that the waiver may have 
been premature at the time the contract was awarded since, although 
Panametrics had passed first article testing under the earlier 
contract, it had not been given first article approval.  We do not 
see, and Kahn does not explain, how the first article waiver, even if 
it was granted in error, would affect the propriety of the award to 
Panametrics.

7. Kahn also argues that its proposal should have been included in the 
competitive range and that the Navy improperly created a competitive 
range of one.  The premise of this allegation is incorrect; the Navy 
did not create a competitive range.  Rather, as explained above, 
Kahn's proposal was rejected as technically unacceptable and award was 
made to Panametrics based on its technically acceptable, initial 
proposal.  In addition, Kahn argues that the award was flawed because 
the Navy failed to evaluate past performance and failed to determine, 
as required by the RFP, that the Panametrics proposal was the most 
advantageous to the government.  We disagree; since Kahn's proposal 
was unacceptable as submitted and Kahn was not eligible for award, 
only the Panametrics proposal was eligible for award.  Under the 
circumstances, the past performance evaluation and the determination 
of which proposal was the most advantageous to the government could 
have had no impact on Kahn's competitive position.