BNUMBER: B-281289
DATE: January 20, 1999
TITLE: APTUS Company, B-281289, January 20, 1999
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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:APTUS Company
File: B-281289
Date:January 20, 1999
S. Emanuel Lin for the protester.
Joshua A. Kranzberg, Esq., and Earl T. Hilts, Esq., Department of the
Army, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq.,
Office of the General Counsel, GAO, participated in the preparation of
the decision.
DIGEST
1. General Accounting Office (GAO) will not consider argument that
agency has not correctly defined its own needs because GAO's role is
to ensure that the statutory requirements for full and open
competition are met, not to determine whether different specifications
might better meet the agency's needs.
2. Under solicitation for commercial items, award to vendor whose
quotation is reasonably judged to be best in terms of past performance
and price is proper where solicitation provides for evaluation of past
performance and price, and does not provide for comparative evaluation
of vendors' technical solutions.
DECISION
APTUS Company protests the issuance of a purchase order to Troy Energy
& Automation under request for quotations (RFQ) No. DAAA22-98-Q-0368,
issued by the Department of the Army, Watervliet Arsenal, for upgrade
of the Arsenal's automated storage and retrieval system (AS/RS).
APTUS contends that Troy's technical solution does not meet the
requirements of the RFQ and that its own solution was superior to
Troy's.
We deny the protest.
BACKGROUND
The AS/RS is a computer-controlled warehouse storage system. Items
are stored on pallets at 1,600 locations on a multi-level high-rise
rack system; the pallets are moved to and from storage locations by a
mechanical system that includes rollers and two cranes. A host
computer, the PDP-11/44, controls the pallet movements and stores
information regarding location using a database management system
(DBMS). The host computer sends commands to a stacker controller
system, which consists of two PDP-11/03 microprocessors, one located
on each of the cranes. The PDP-11/03s send commands to programmable
logic controllers (PLC) (located on the cranes and on the warehouse
wall); the PLCs in turn send commands to the cranes and rollers.
The Army explained, by way of background in the RFQ's statement of
work (SOW), as follows:
Since the AS/RS holds many parts that are needed for daily
mission work, it is necessary that it operate reliably and
efficiently. However, in 1985, the stacker experienced a failure
that shut down the system for several days. The root cause of
the problem was never determined although it may have involved
the DBMS regarding a pointer for a specific data address. At
that time, it was discovered that the DBMS was no longer
supported by [the manufacturer]. By manually updating the
database to reflect that day's transactions, the system was then
restarted. Multiple system failures have occurred since the
summer of 1991. The number of failures peaked in 1996 incurring
extensive downtime.
SOW sec. 1.2.3.
The agency sought to replace the DBMS software in order to avoid a
recurrence of the problem; to obtain a DBMS that is vendor-supported;
and to take advantage of the latest technology. SOW sec. 1.2.4. It also
sought to replace or upgrade the existing hardware platform to
accommodate the new software. Id.
The RFQ, which was issued using simplified acquisition procedures
pursuant to the authority of Federal Acquisition Regulation (FAR)
Subpart 13.5 (Test Program for Certain Commercial Items),[1]
contemplated the award of a fixed-price purchase order with a 12-month
performance period. The SOW required replacement of the host
computer, replacement or upgrade of related peripheral equipment (such
as printers and tape drive), and replacement of the DBMS software.
SOW sec. 1.2.6.1.1. It did not require the replacement or upgrading of
other components of the AS/RS, such as the stacker controller system.
Vendors were required to provide technical submissions addressing the
requirements of the SOW, but the RFQ did not provide for a comparative
evaluation of those technical submissions. Instead, it provided for
award based on an evaluation of price and past performance.[2]
Four vendors submitted technical solutions by the July 28, 1998 due
date. After several rounds of questions and answers, the submissions
of APTUS and Troy were determined to be technically acceptable, and
the submissions of the other two vendors were determined unacceptable.
APTUS's submission was found acceptable despite the fact that the
protester proposed to make changes to the AS/RS beyond those required
by the SOW. In this regard, APTUS proposed not simply to replace the
host computer, related peripherals, and the DBMS, but also to
reconfigure the AS/RS by removing the PDP 11/03s and re-routing
communications from the PLCs to the host computer.
After determining that the technical solutions of both Troy and APTUS
were acceptable, the contracting officer invited both to submit what
was referred to as best and final offers (BAFO); Troy's BAFO price was
$268,800, while APTUS's was $272,400. The contracting officer
determined that both APTUS's and Troy's past performance were
satisfactory. Since Troy's technical solution was acceptable, its
past performance was satisfactory, and its price was low, the
contracting officer determined that award to Troy was in the best
interest of the government. The agency issued a purchase order to
Troy on September 9. APTUS obtained a copy of Troy's solution
pursuant to a Freedom of Information Act request on October 3, and
protested to our Office on October 13.
ANALYSIS
APTUS argues that the purchase order should not have been issued to
Troy because Troy's quotation does not provide for a reliable and
efficient AS/RS, as required by section 1.2.3 of the SOW. In this
regard, the protester contends that the AS/RS will function less
efficiently and reliably if the PDP-11/03s are left in than if they
are taken out, because the inclusion of unnecessary hardware in a
system will degrade its performance.[3] The PDP-11/03s are
unnecessary hardware, the protester maintains, because the PDP-11/44
can run the programs they are running and communicate directly with
the PLCs.
The RFQ here did not ask vendors to reconfigure the AS/RS; it asked
them to replace the central computer, related peripherals, and DBMS
software only. The protester's argument that replacement of the
central computer and software will not be enough to guarantee a
reliable and efficient system is thus, in essence, an argument that
the agency has not correctly defined its own needs. This is not an
argument that we will consider; our role is to ensure that the
statutory requirements for full and open competition are met, not to
determine whether different specifications might better meet the
agency's needs. Purification Envtl., B-259280, Mar. 14, 1995, 95-1
CPD para. 142 at 3.
APTUS also argues that it should have received the award because its
solution was technically superior to Troy's.
Because this RFQ was issued pursuant to the authority of FAR Subpart
13.5, the requirements of FAR Part 12 (Acquisition of Commercial
Items) applied to it.[4] FAR sec. 13.500(c). FAR sec. 12.301(c) permits
the inclusion of FAR sec. 52.212-2 (Evaluation-Commercial Items) or a
similar provision setting forth the evaluation factors when the use of
evaluation factors is appropriate. The RFQ here did not incorporate
FAR sec. 52.212-2 or otherwise provide for a comparative evaluation of
technical submissions, however; it provided only for the evaluation of
past performance and price. Under such circumstances, selection of
the vendor judged to be best in terms of past performance and price
who provided a technically acceptable submission was clearly
contemplated. Vistron, Inc., B-277497, Oct. 17, 1997, 97-2 CPD para. 107
at 4. In other words, even assuming for the sake of argument that
APTUS's submission was technically superior to Troy's, the protester
was not entitled to award on this basis.[5]
Finally, APTUS argues that award to Troy was improper because, while
the RFQ required that a vendor have a good past performance record to
be considered for award, the contracting officer determined that
Troy's record was merely satisfactory.
As APTUS points out, the RFQ required that vendors have a good past
performance record to be considered for award; it also provided that
to ensure a good past performance rating, vendors must have delivered
quality conforming products/services in the time specified. With
regard to Troy's past performance, the contracting officer noted that
Troy had recently completed two projects at the Arsenal and that both
had been completed "in a timely and quality (technically satisfactory)
manner"; he therefore concluded that Troy had a "satisfactory" past
performance record. Memorandum for the Record, Sept. 9, 1998.
Although the contracting officer used the adjective "satisfactory"
rather than the adjective "good" to describe Troy's record, we do not
think that he intended thereby to imply that Troy's record was less
than good; Troy's performance in fact met the standard for a good
rating, i.e., it had delivered items/services of acceptable quality on
time.
The protest is denied.
Comptroller General
of the United States
1. FAR Subpart 13.5 authorizes, as a test program, use of simplified
procedures for the acquisition of supplies and services in amounts
greater than the simplified acquisition threshold but not exceeding $5
million, including options, if the contracting officer reasonably
expects, based on the nature of the supplies or services sought, and
on market research, that offers will include only commercial items.
FAR sec. 13.500(a).
2. The RFQ at page 21 incorporated by reference Watervliet Arsenal's
own "Simplified Past Performance Evaluation" clause, which provides as
follows:
Award will be based on an evaluation of both price and
past performance. Past performance evaluation includes
quality, timeliness of performance and responsiveness
(general attitude toward addressing questions/problems).
Award may be made to other than the low offeror when after
evaluating past performance, it is determined by the
contracting officer to be in the government's best
interest. Price will always be an important factor and
therefore offerors should make diligent efforts to control
costs and submit fairly priced quotes. To be considered
for award you must have a good past performance record
based upon information available to the contract
specialist and offer a reasonable price. . . . All
offerors are reminded that to ensure they have a good past
performance rating they must adhere to the following
standard:
QUALITY CONFORMING PRODUCTS/SERVICES MUST BE DELIVERED IN
THE TIME SPECIFIED.
3. According to the protester,
[t]he rule of thumb in design of a reliable system is to
use as little hardware as possible, unless the hardware we
bring into the system can offer us something that the
software can not deliver. This is because of the fact
that the hardware will fail us sooner or later. However,
the software, once debugged, won't. The more hardware we
use, the more troubles we'll get to keep them running and
the less money we'll get to keep to ourselves.
Protester's response to agency questions, Sept. 3, 1998, at 2.
4. FAR Subpart 12.3 requires that solicitations for commercial items
include the provisions at FAR sec. 52.212-1 (Instructions to
Offerors-Commercial Items), 52.212-3 (Offeror Representations and
Certifications-Commercial Items), 52.212-4 (Contract Terms and
Conditions-Commercial Items), and 52.212-5 (Contract Terms and
Conditions Required to Implement Statutes or Executive
Orders-Commercial Items). FAR sec. 12.301(b). The RFQ here, at 1, block
27a, incorporated all of these clauses by reference. APTUS argues that
one of these clauses, FAR sec. 52.212-1(g), required the agency to
perform a comparative technical evaluation of the offers received
because it refers to consideration of "the offeror's best terms from a
price and technical standpoint." This interpretation is erroneous.
FAR sec. 52.212-1, as its caption states, sets out a standard set of
basic procedures to be followed in commercial item acquisitions. The
subparagraph on which APTUS relies states that the government intends
to make award without discussions, and, in that context, advises
offerors to submit their best terms from a price and technical
standpoint for consideration by the agency. It in no way suggests
that a comparative evaluation of technical submissions was
contemplated or required.
5. To the extent that the protester is also arguing that the agency
improperly failed to take technical submissions into account in
selecting an awardee, it is incorrect; the Army did evaluate
submissions for technical acceptability. What it did not do was
perform a comparative evaluation of submissions.