/'~ ~THE COMPTROLLER GENERAL,DECISION OrJ i ° F THE UNITED STATES

WASH ING TO N D . C. 2 05 4 8

FILE: B-193240 DATE: May 29, 1979 3°MATTER OF: Servo Corporation of America

DIGEST:

1. p~rotest that Solicitation contained biased_pecificationg because of agency's impropercancellation o9 prior contract with protesterand consequent revision of agency's minimumneeds is untimely. GAO believes any deficien-cies in specifications concerning design orperformance characteristics of protester'sequipment should have been readily apparentfrom face of solicitation. Thus, protestshould have been filed before closing date forreceipt of proposals as required by 4 C.F.R.§ 20.2(b)(1) (1978).

2. In absence of abuse of discretion or unreason-ableness or a violation of procurement statutesor regulations, GAO will not disturb technicaljudgment of agency. Record reveals that awardee'sproposal is technically superior in certain majortechnical areas. Consequently, GAO concludes thatagency's technical evaluation of proposals submittedwas reasonable.

3. Critical test for determining whether there wasbias in evaluation of protester's proposal iswhether all offerors in context of competitionhave been treated fairly and equally. Protesterhas presented no specific evidence of fraud, abuseof discretion, or arbitrary action in procurementitself which would show that it was treated unfairlyor unequally. Therefore, since it is the responsi-bility of protester to present evidence sufficientto affirmatively establish its allegations of biasin evaluation of its proposal.

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4. Record shows that agency's review of its technicalevaluation after protest was made to it was notintended to be a full-scale, second-source selec-tion evaluation. Moreover, results of review wereconsistent in those technical areas reviewed withthose of original evaluation. GAO consequently isof view that agency took more than adequate stepsto insure that original technical evaluation ofproposal was in fact reasonable.

5. GAO finds no merit in protester's contention thatreview by it of agency's evaluation is necessary.It is not the practice of GAO to conduct investi-gations pursuant to its bid protest function forpurpose of establishing validity of protester'sspeculative statements.

6. GAO does not review affirmative determinations ofresponsibility except where fraud is alleged onpart of procurement officials or where solicitationcontains definitive responsibility criteria whichallegedly have not been applied. Neither exceptionis present here. Moreover, while determinationsas to responsibility of offerors should be basedon most current information available, GAO concludesthat protester has not offered any new informationwhich would affect agency affirmative determinationof awardee's responsibility.

7. Failure of protester's subcontractor to delivercritical technology to it is matter which directlyrelates to the technical merits of protester's pro-posal. Since GAO does not disturb agency's techni-cal evaluation in absence of clear showing ofarbitrariness or unreasonableness, protester has nobasis for questioning agency's technical determina-tions. Moreover, record shows that agency evaluatedprotester's proposal on assumption that critical tech-nology would be transferred to protester prior toany possible award.

8. Protester's contention that agency did not conductmeaningful negotiations concerning protester's com-puter software approach is without factual basis.Agency evaluation report which protester refers toshows that any change in this area would have in-volved a complete redevelopment on the part of the

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protester. Further, report indicates thatagency did hold lengthy discussions withprotester on the matter.

Servo Corporation of America (Servo) protests theaward of a contract for a system to detect, analyze andtransmit atmospheric meteorological data for use by theArmy Field Artillery to anyone other than itself underrequest for quotations (RFQ) DAABO7-78-Q-2704 issued bythe Army Electronics Research and Development Command,Fort Monmouth, New Jersey.

BACKGROUND

The meteorological system that the Army had reliedupon for the detection of data that would affect artil-lery firings is the GMD-1, Rawinsonde System. The GMD-1was developed in the late 1940's to provide the Armywith an automatic system to replace older manuallyoperated equipment for obtaining meteorological data.First production sets of this system were placed in usein 1949. With the passage of time, however, the GMD-lbecame increasingly incapable of meeting the Army's needs.The system's vacuum tube technology was markedly inferiorto the solid state electronics technology that hadarisen. Repair parts became increasingly more difficultand expensive to find. Also, because the strip recorderprintout of the GMD-1 must be reduced by hand, aninordinate amount of time was needed in battlefieldsituations to make use of the GMD-1 data.

A contract was awarded to Fairchild-Hiller Corpora-tion (then Republic Aviation Corporation) in June 1963to develop the Automatic Atmospheric Sounding Set, theTMQ-19, and the Atmospheric Meteorological Probes, AMQ-22and AMQ-23, which were all parts of the MeteorologicalData Sounding System, the UMQ-7. Phase I of this con-tract resulted in a final report in September 1965. Ittraced the growth of the system from the initial require-ment phase into hardware specifications and finally intoactual hardware designs by the contractor.

Phase II of the above-described program was initiatedin April 1964 and continued until 1967. During Phase II,the systems proposed in the first phase were built andtested in accordance with the electrical and environmental

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requirements specified in the specifications preparedby the Army. Most importantly, a model of the TMQ-l9,which was the data acquisition and processing nucleus ofthe UMQ-7, was delivered in December 1966 and acceptedby the Army in March 1967.

A special In Process Review (IPR) was made by theArmy in April 1969. At that time a determination wasmade to proceed with the engineering development of twoTMQ-19 sets on an expedited basis. As a consequence, asolicitation was issued in September 1969 and in June1970 Servo was awarded a fixed-price, incentive contractfor the two test models of the TMQ-19. Servo performedwork in developing the TMQ-19 until its last contractwas terminated for convenience in March 1976.

Although sizeable expenditures had been made forthe TMQ-19, the Army during this time had been activelypursuing several alternatives in view of the doctrinaland need changes of its field artillery. In general,the Army desired an automated lightweight mobile meteoro-logical data system for timely acquisition and dissemina-tion of meteorological data to front line field artillerybattalions. The general requirements for a new systemwere established in November 1976. This system was termedthe Field Artillery Meteorological Acquistion System(FAMAS).

The protested RFQ was issued on December 22, 1977,with February 13, 1978, specified as the closing datefor receipt of proposals. At Servo's request, the closingdate was extended to March 13, 1978. A preproposal confer-ence was held on January 10, 1978, at which time prospec-tive offerors were briefed on the FAM4AS requirements andthe RFQ. On the closing date, two proposals were receivedby the Army, one from Servo and one from the Bendix Cor-poration (Bendix). These proposals were then technicallyevaluated and on July 11, 1978, each offeror was informedof its proposal deficiencies. Negotiations were heldwith Bendix on July 26-27, 1978, and on July 27, 1978,with Servo. Best and final responses were received onAugust 15, 1978, and the Army's final technical evaluationwas completed on August 17, 1978. An Overview Group meton August 18, 1978, to review the technical evaluationsthat had been made to that date.

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By letter dated September 15, 1978, Servo submitteda protest to the Army alleging certain improper actionsand procedures in the procurement. Because of Servo'sallegation of bias in the evaluation of its proposal andto be certain that the evaluation and source selectionprocess had not been improperly influenced by any oneindividual, the Army conducted a technical review of theoriginal technical evaluations of the proposals of Servoand Bendix. A written report of the technical reviewwas completed on October 13, 1978.

The Army denied the protest on October 18, 1978.By letter received in our Office on the same date, Servoprotested that the Army did not accord it the relief towhich it was entitled under applicable procurement lawsand regulations and that the review procedures utilizedby the Army to correct deficiencies in the technicalevaluation in the procurement were themselves deficient.

By letter dated November 30, 1978, Servo lodged asecond protest under the FAMAS procurement with ourOffice. Servo alleged that its competitors may haveimproperly influenced or interfered with the procurementand delivery of certain technology to Servo by its sub-contractor. Therefore, Servo questioned the eligibilityof Bendix for award and the propriety of the Army's eval-uation of Servo's technical proposal.

The Army procuring activity which issued the FAMASprocurement initiated on January 11, 1979, a Request forAuthorization to award a contract to Bendix prior toresolution by us of Servo's protest. The GMD-l system,which FAMAS is to replace, operates in a radio frequencyband which interferes with the effective operation of theGerman Meteorological Satellite. Also, the factors ofage, obsolete technology and cost of maintenance havecaused a degradation in the state of readiness of theArmy's present meteorological data acquisition equipment.Therefore, the Army has scheduled the FAMAS program toassure deployment of 10 FAMAS systems in Europe byDecember 1983. This schedule was predicted on award ofa contract in June 1978. Because of the time consumedin the evaluation and negotiation of the proposals sub-mitted, the Army's proposed date of award slipped toSeptember 1978. Because of the protests of Servo theproposed award had been indefinitely delayed so that the

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Army's commitment to delivery by December 1983 was inserious jeopardy.

Consequently, on March 13, 1979, the authority toaward to Bendix pending resolution of Servo's protestswas granted by the Assistant Secretary of the Army forResearch, Development and Acquisition. This authorityto award was pursuant to Defense Acquisition Regulation(DAR) § 2-407.8(b)(3)(i) (1976 ed.), which permits awardprior to resolution of a protest on grounds of urgency.

SERVO'S ALLEGATIONS

By letter dated November 6, 1978, Servo, in providingadditional details in support of its first protest, madeseveral allegations:

1. That only it was entitled to award of theFAMAS contract in accordance with the solici-tation's established evaluation criteria sinceit had solid technical experience relevant tothe performance of the contract from its per-formance during the past 7 years of Army con-tracts for the development of meteorologicalequipment directly related to FAMAS.

2. That in view of its technical experience anyhigher technical rating given to Bendix canonly be the result of favoritism toward Bendixand/or prejudice against Servo by one or moremembers of the Army's technical evaluationteam.

3. That the bias and prejudice against it was theresult of the Army's improper cancellation ofthe TMQ-19 and the Army's revision of its re-quirements which provide the basis for theFAMAS specifications so as to exclude Servoand the TMQ-19 from consideration.

4. That certain review procedures utilized by theArmy to correct deficiencies in the technicalevaluation of the proposals submitted werethemselves deficient and incapable of insuringa complete and impartial evaluation.

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By letter dated December 21, 1978, Servo, insupplementing its November 30, 1978, letter, providedthe following grounds for its second protest:

1. That the Army knew of Servo's failure toreceive critical technology to which it hadexclusive right and that this knowledge af-fected the Army's evaluation of Servo'sproposal.

2. That the circumstances surrounding its fail-ure to receive the technology raise seriousquestions about the extent and propriety ofthe role which Bendix had in the matter.

TIMELINESS

With respect to Servo's first protest, the Armyargues that the issues raised by Servo concerning thecancellation of the TMQ-19 and the redefinition of thefield artillery's meteorological needs are untimelyunder our Bid Protest Procedures, 4 C.F.R. part 20(1978). The Army points out that the events surround-ing the termination of the UMQ-7 of which the TMQ-19was a part and parcel of the preparation of the require-ments for FAMAS occurred in late 1975 and early 1976.To raise issues involving these events in September1978 is, in the Army's opinion, far beyond the intentof the time limits established by our Office for filingtimely protests and is clearly beyond the 10-day limitfor filing a protest after the basis for the protestis known or should have been known.

In support of the above position, the Army furthercontends that the proper time for Servo to have raisedthe issue of bias resulting from the termination of theUMQ-7 was at the time it occurred which was prior tothe issuance of the FAMAS solicitation. According tothe Army, Servo knew or should have known the basisfor its protest on this issue on or after February 24,1976, because Servo raised the matter in a letter tothe Office of the General Counsel, Department of theArmy, dated January 8, 1976. The Army states that itreplied to that letter on February 24, 1976. SinceServo received formal notification of adverse agencyaction on this date, the Army believes a protest shouldhave been filed within 10 days thereafter. See 4 C.F.R.§ 20.2(a).

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With respect to Servo's second protest, the Armycontends that Servo has admitted that the facts whichsupport the assertion that the delivery of the technol-ogy was improperly influenced were brought to Servo'sattention during a deposition taken on November 15,1978, in a bankruptcy proceeding. Consequently, theprotest that Servo filed with our Office on November 30,1978, was filed more than 10 days after the basis forsuch protest was known to Servo. Although it appearsthat Servo exceeded the filing deadline by only a fewdays, the Army refers to our decisions which hold thatthe time limits for filing protests are not to be re-garded as mere technicalities which can be waived. See,for example, R. A. Miller Industries, Inc. (Reconsidera-tion), B-187183, January 14, 1977, 77-1 CPD 32.

In response to the Army's assertions as to thetimeliness of its first protest Servo asserts that theArmy has misconstrued the bases of this protest andfailed to distinguish between the various issues Servohas raised. The issues raised by Servo are distinctfrom those presented in its letter of January 8, 1976.Servo contends that the first issue raised by it in thefirst protest is the bias resulting from the manipulationof the Army's requirements after the cancellation of theTMQ-19 which bias affected the FAMAS procurement. Servoargues that this issue could not have been raised in itsletter of January 8, 1976, because the FAMAS solicitationwas not issued until December 22, 1977. Servo states thatit could hardly be expected to protest bias and prejudicerelating to a solicitation which had not been issued.Had it done so, Servo agrees that the Army would havehad a legitimate timeliness argument.

Furthermore, Servo claims that it was unaware thatthe bias and prejudice which resulted in the cancellationof the TMQ-19 had infected the FAMAS procurement untilits discovery of a back channel, "eyes only," internalArmy message from an individual named "John." The in-dividual's last name does not appear on the message,but Servo avers that he is the Chief, Special CensorsDivision, United States Army Combat Surveillance andTarget Acquistion Laboratory, Fort Monmouth, New Jersey.In any event, Servo states that this document was notuncovered until October 23, 1978, pursuant to a searchServo conducted of Army files under a Freedom ofInformation Act (FOIA) request.

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The above-mentioned message describes in somedetail a dispute among various commands within the Armyas to what the Army's requirements for a meteorologicaldata acquisition system should be. Apparently, certaincommands went along with the decision to cancel the TMQ-19rather than modify it because of a refusal on the partof other commands to discuss any modifications in "goodfaith." Also, the message indicates that the Army's newmeteorological data acquisition requirements had been atthat point very hastily drawn up and, thus, had not beenadequately thought through.

In addition, Servo contends that the above-describedmessage, which was written on December 19, 1975, revealsthat the Army violated Federal procurement regulations anddisregarded fair procurement practices in an ill-advisedand ultimately futile effort to eliminate the TMQ-19 infavor of the Japanese-made Automatic Tracking RawinsondeReceiver Station, known as the RD-65A. The RD-65A, a com-mercial, lightweight, radio direction-finding system, hadbeen under Army review since July 1974. Servo claims thatthe message indicates that the Army was focused solely onthe RD-65A and was closed to any other technological sys-tem. Moreover, Servo contends that the message shows thatthe Army's new meteorological requirements which werebeing formulated at that time were merely a smokescreento provide a rationale for eliminating the TMQ-19 andinsuring a contract for the RD-65A.

It is our opinion that the arguments raised byServo relating to the designing of the FAMAS specifica-tions to improperly eliminate it are untimely. Whilewe agree with Servo that bias and prejudice relating tothe FAMAS solicitation specifications could not havebeen protested prior to the issuance of that solicita-tion, protests based on patent solicitation improprie-ties are required to be filed with us prior to theclosing date for receipt of initial proposals. See4 C.F.R. § 20.2(b)(1). Here, the deadline, as amended,for receipt of proposals was March 13, 1978. Servo didnot question the FAMAS specifications until more than 6months after this date when it filed a protest onSeptember 15, 1978, with the Army.

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We recognize Servo's claim that it did not discoverthat the FAMAS specifications had been manipulated toexclude the TMQ-l9 until October 23, 1978, when Servodiscovered the back channel message during a search ofArmy files pursuant to FOIA. Nevertheless, regardlessof what this message may have revealed about the moti-vations for the FAMAS specifications, we think that thedeficiencies in the specifications themselves concerningthe TMQ-i9 should have been readily apparent from theface of the RFQ. Moreover, if Servo really desired thatthe FAMAS specifications provide for some or all of thedesign and performance characteristics of the TMQ-19, itshould have made such desire known to the Army priorto the closing date for receipt of proposals.

Servo also contends that while the Government enjoyswide discretion to determine its minimum needs, this dis-cretion is not unlimited. The exercise of that discretionmay not involve, as Servo alleges here, fraud, abuse ofauthority, arbitrariness, unreasonableness, or a violationof procurement statutes or regulations. However, we havealso indicated that in a preprocurement situation, theGovernment is not required to comply with the rules andregulations generally governing procurements in conductingprocedures to determine its minimum needs. See MaremontCorporation, 55 Comp. Gen. 1362 (1976), 76-2 CPD 181.Furthermore, our examination of the Government's determi-nation of its minimum needs is limited to consideringwhether the procuring agency's evaluations and conclusionsare arbitrary. See American Chain & Cable Company, Inc.,B-188749, May 23, 1978, 78-1 CPD 390.

The technical specifications and the technicalevaluation method were set out in detail in the RFQ.Servo has not provided any details as to how the tech-nical specifications in the RFQ were biased as a resultof the cancellation of its TMQ-19. Moreover, Servo it-self indicates that the RD-65A which the Army was favor-ing in 1976 was eventually disqualified. In view of theforegoing, we think that Servo had sufficient informa-tion to put it on notice that the technical specifica-tions for the FAMAS procurement were substantiallydifferent than those for the TMQ-19. Therefore, Servo'sargument regarding biased specifications, raised afterthe closing date, is untimely. See Serv-Air, Inc., 57Comp. Gen. 827 (1978), 78-2 CPD 223.

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Servo argues that if some of the issues raised inits first protest are untimely, these issues should,nevertheless, be considered. Servo believes that anyuntimely issues should be considered pursuant to the"good cause" or "significant issue" exceptions set forthin our Bid Protest Procedures. See 4 C.F.R. § 20.2(c).Citing our decisions in Fiber Materials Inc., 54 Comp.Gen. 735 (1975), 75-1 CPD 142, and LTV Aerospace Corpora-tion, B-183851, October 1, 1975, 75-2 CPD 203, Servo alsoargues that its allegations concerning bias specificationsare substantially intertwined with its allegations concern-ing the bias of the evaluators and the Overview Group inevaluating the two proposals submitted in this procurement.Because of the substantial intertwinement, then, Servourges that it is proper for us to review all these issuestogether.

The good cause exception generally refers to some com-pelling reason, beyond the protester's control, which pre-vented it from filing a timely protest. 52 Comp. Gen. 20,23 (1972); Power Conversion, Inc., B-186719, September 20,1976, 76-2 CPD 256. Servo asserts that the Army had hin-dered prior attempts by it to obtain information concerningthe cancellation of the TMQ-19 and the subsequent issuanceof a new meteorological doctrine. Because Servo's allega-tions of biased specifications pertain to improprietieswhich would have been apparent from the face of the solici-tation, we fail to understand how the alleged hindrancesby the Army prevented Servo from protesting these impro-prieties prior to the closing date for receipt of proposalsunder the RFQ. Consequently, we do not believe that thegood cause exception can be invoked here.

The significant issue exception is limited toissues which are of widespread interest to the procure-ment community and is "exercised sparingly" so thatthe timeliness standards do not become meaningless.R. A. Miller Industries, Inc., supra. Servo cites ourdecision in Willamette-Western Corporation; PacificTowboat & Salvage Co., B-179582, B-179328, November 14,1974, 74-2 CPD 259, as an example of where the issue ofbias, although untimely, was reviewed by us under thesignificant issue exception. That case involved the re-lease of a draft solicitation for marine salvage to anincumbent contractor approximately 5 months before theother competitors received an official solicitationwhich release resulted in the incumbent's sole knowledge

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of approximate weights of evaluation criteria. Also,there was consideration of criteria not stated in thesolicitation which were unequally applied to favor theincumbent. We believe that the cited case involved morethan the mere fact that there was bias in favor of theincumbent contractor-offeror. Therefore, we cannot con-clude that the situation that existed in Willamette-Western Corporation, which led to consideration by usunder the significant issue exception, was the sameas exists here.

We have also indicated that a significant issueis one which affects more than the individual procure-ment itself. See Catalytic, Incorporated, B-187444,November 23, 1976, 76-2 CPD 445. Here, we believe thatthe allegations of bias in the FAMAS specifications con-cern only the protested procurement. Therefore, con-sideration of these allegations under the significantissue exception is also unwarranted.

Nor do we feel compelled to consider the merits ofServo's claims regarding biased specifications on thebasis that they are intertwined with the timely claimsregarding bias by the Army in evaluating the proposalssubmitted under the RFQ. Servo cites our decisions inFiber Material, Inc., supra, and LTV Aerospace Corporation,supra, as authority for the propriety of considering lateissues because of their relationship to timely ones. InFiber Material, we considered the merits of the protestbecause it raised an issue significant to procurementpractice or procedure. In LTV Aerospace Corporation, wefelt that it was appropriate to consider untimely issuesconcerning the propriety of solicitation specificationsbecause these issues also involved questions of Federalappropriation and "congressional intent" which affectedthe timely issue regarding the fairness and equality ofthe solicitation evaluation. Here, however, Servo'sgeneral allegations of biased specifications resultingfrom alleged improprieties in canceling its TMQ-19 showno specific relationship with Servo's allegations ofbias in the proposal evaluations.

With regard to the second protest, Servo arguesthat it was filed within 10-working days after the factsupon which it is based were brought to its attention.We agree. There are 10 working days from November 15,1978, the date upon which Servo discovered the facts

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upon which it has based its second protest, toNovember 30, 1978, once weekends and Thanksgiving Day,a Federal holiday, are excluded.

BIAS IN EVALUATION AND TECHNICAL REVIEW

Servo contends that, at a minimum, its technicalproposal must be deemed essentially equal to Bendix's.The RFQ evaluation criteria were technical, cost, andmanagement, with technical and cost substantially moreimportant than management. Servo asserts that it hashad solid technical experience relevant to the perform-ance of the FAMAS contract from its performance from1970 to 1976 on contracts for the development of meteor-ological equipment related to FAMAS. Also, Servo statesthat it has purchased technology from and now employsformer key personnel of Beukers Laboratories, Inc.(Beukers), Bohemia, New York. According to Servo,Beuker's unique and proprietary technology and hardwarewere directly utilized by the Army in its developmentof the prototype FAMAS equipment. In view of-the fore-going, Servo believes that if Bendix's technical ratingwas higher, it can only have been the result of favoritismtoward Bendix and/or prejudice against Servo by one ormore members of the Army's technical evaluation team.

In addition, Servo refers to a letter dated October 18,1978, from the Army which related the results of the tech-nical review it conducted pursuant to Servo's protest toit. Servo emphasizes that the Army stated in this letterthat "the propriety of the methods employed in the evalua-tion would not necessarily preclude the possibility thatindividual prejudice might influence the selection of thesuccessful offeror." As a consequence, Servo asserts thatit is clear that reasonable cause exists to believe thatthe original evaluation of its technical proposal wassubject to possible bias and prejudice. Also, Servourges that based on the above statement, there is evidencein the Army's possession and control that bears upon thismatter. While noting that the Army did state in theOctober 18, 1978, letter that "the selection did not appearto have been influenced by prejudice," Servo takes theposition that this conclusion by the Army is not bindingon our Office. In Servo's opinion, we must reach an inde-pendent determination as to whether any bias did affectthe evaluation process.

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With regard to the technical review, Servo indicatesthat the Army acted in good faith to attempt to correctthe deficiencies in the technical evaluation of the RFQproposals. Nevertheless, Servo contends that the reviewprocedures of the Army were themselves deficient andincapable of insuring a complete and impartial evaluationof the technical proposals. Servo alleges that no memberof the review team had technical competence in the meteor-ological area. Servo also points out that the entirereview was conducted in the space of 3 to 4 weeks ascontrasted with the months of negotiation and evaluationnormally accorded a procurement of the size and complexityof FAMAS. Finally, Servo claims that the only questionsand answers available to the reviewers were those whichresulted from the negotiations conducted by the originalevaluators. Thus, the reviewers, despite their bestintentions, were misled by the bias and prejudice of theoriginal evaluation.

The Army states that regarding the technical evalua-tion, the evaluation factors and subfactors, as well asthe directions given in the solicitation for response tothem, were specifically designed for this particular pro-curement. Section "D" of the solicitation contained aclear statement that evaluation would be made upon propo-sal submission. The Army further states that the evalua-tion was conducted in accordance with section "D" and thesolicitation's evaluation plan. Each offeror was givena fair, impartial and honest opportunity to compete andthe technical ratings given to each proposal were basedon the reasonable judgments of the evaluators. Thus, theArmy contends that there is no evidence of any arbitraryaction or abuse of discretion with respect to the technicalevaluation under the FAMAS procurement. In the Army'sopinion, the only evidence of any bias or prejudice hereis Servo's written allegations.

As to the review of the technical evaluations,the Army states that the review team was given noinformation concerning the final conclusions of theevaluators. Moreover, the Army emphasizes that thepurpose of the review was not to reevaluate the entireproposal of each offeror, but rather to check theoriginal evaluation for the possibility of bias. Thereview team consisted of technical personnel who had noprior involvement with the technical evaluation or theRFQ. According to the Army, the scope of the review was

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limited to the technical design of the hardware offered.Support areas such as technical manuals, training aids,logistic support analysis, design to cost, contract costand management and the like were not evaluated.

The Army states that the reviewers were not informedthat the purpose of their review was to check the tech-nical evaluation for possible bias. Instead, they weretold to make their own independent judgments on the tech-nical merits of each offeror's proposal. After the reviewteam had made its findings, a comparison was made withthe original findings of the evaluators. The Army statesthat both the findings of the reviewers and the findingsof the evaluators demonstrated that Bendix's technicalproposal was superior to Servo's. Furthermore, the Armycontends that Bendix's higher technical rating was earnedsolely by its submission of a better proposal and not byany allegedly improper means.

Bendix asserts that Servo has not submitted suffi-cient evidence under our established standard of reviewto warrant disturbing the Army's selection of it foraward under the FAMAS solicitation. Bendix argues thatour decisions make it clear that allegations of improperconduct based on unfair or prejudicial motives are merespeculation where the written record fails to clearlydemonstrate the alleged unfair treatment. See JosephLegat Architects, B-187160, December 13, 1977, 77-2 CPD458. Moreover, Bendix points out that an agency evalua-tion will not be disturbed by us "absent a clear showingthat the determination was arbitrary or unreasonable."See Advanced Design Corporation, B-191762, August 10,1978, 78-2 CPD Ill. In Bendix's opinion, Servo's allega-tions of bias and prejudice should be dismissed as merespeculation because no bias or prejudice has been shown.

With regard to the possibility of bias mentionedin the Army's October 18, 1978, letter to Servo, Bendixcontends that the true situation is that the Army, outof extreme caution, despite no indication of prejudice,but recognizing the theoretical possibility of such,empaneled a whole new evaluation team. This team, whichwas wholly isolated from the original evaluationteam in its considerations and deliberations, arrivedat the same conclusion; that is, that Bendix had thehigher rated technical proposal. Consequently, Bendixbelieves that Servo's conclusion that the empaneling of

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a second evaluation team constitutes a recognitionof impropriety by the Army is without foundation, asis equally Servo's conclusion that the second evalua-tion was biased,.

We agree with the Army and Bendix. It is not thefunction of our Office to make determinations as to theacceptability or relative merits of technical proposals.As stated by Bendix, our examination of the record inthis matter is to determine whether the judgment of thecontracting agency was clearly without a reasonable basis.Joseph Legat Architects, supra. Unless such a findingis made by us, or there is an abuse of discretion, ora violation of procurement statutes or regulations, thecontracting agency's judgment will not be disturbed.Struthers Electronics Corporation, B-186002, September 10,1976, 76-2 CPD 231. Otherwise, the contracting agencymust bear the burden of any difficulties resultingfrom a defective evaluation. Macmillan Oil Company,B-189725, January 17, 1978, 78-1 CPD 37.

The record reveals that under the original technicalevaluation the proposals of both Servo and Bendix weredetermined to be acceptable but the proposal of Bendixwas given an overall rating of superior. This technicalsuperiority was in the major technical areas of meteor-ological data processing, low weight trailer assemblagedesign and antenna feeding system. Also, the Army con-cluded that Bendix's proposal demonstrated an excellentoverall basic knowledge of the maintenance and logisticrequirements necessary to support military systems inthe field. Based upon our review of the record, we con-clude that the Army's technical evaluation of the pro-posals was reasonable.

Turning to Servo's contentions concerning the biasof the evaluators themselves, unfair or prejudicialmotives cannot be attributed to individuals on the basisof inference or supposition. See A.R.F. Products, Inc.,56 Comp. Gen. 201 (1976), 76-2 CPD 541. The record con-tains no evidence of any improprieties on the part ofthe technical evaluators. Also, Servo has cited no spe-cific instances of bias or prejudice. Therefore, we be-lieve that Servo's allegations basically amount to specu-lation about possible bias or unfairness on the part ofthe Army's evaluators, without any factual substantiation.

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Essentially, Servo is contending that because ofits prior experience in developing the TMQ-19, it is theonly company that is technically capable of meeting thespecifications of the FAMAS procurement. This conten-tion, however, is, in our opinon, inconsistent withServo's untimely allegations concerning the Army's manip-ulation of FAMAS so as to exclude Servo and its TMQ-19.Further, we think that this contention is unfounded sincethe record indicates that Bendix and its subcontractoralso have prior experience with meteorological systems.Most importantly, the contracting agency, not the pro-tester, has the responsibility for determining whichofferor has submitted the best proposal. See AdvancedDesign Corp., supra. In this regard, the fact that anofferor has outstanding qualifications does not give itlegal entitlement to any specific award. Rather, theofferor must demonstrate its superior qualifications inthe proposal submitted to the contracting agency in re-sponse to a given solicitation. See University of NewOrleans, B-184194, January 14, 1976, 76-1 CPD 22.

Despite the foregoing, Servo takes the positionthat the evaluation of its proposal was bias ipso factobecause the evaluation was based on improper specifica-tions. According to Servo, an evaluation based on biasedspecifications must necessarily result in a biased eval-uation regardless of how unbiased the evaluation teamis. Since the Army states that its evaluation was inaccordance with the solicitation specifications, Servoconcludes that it is quite clear that its proposal wasnot fairly evaluated.

We do not believe that any bias that may haveflowed from the cancellation of the TMQ-i9 automaticallyimplies that the evaluation of Servo's proposal was biased.Servo had the opportunity to protest any and all patentdefects in the solicitation specifications at the timethe solicitation was issued. Furthermore, the criticaltest for bias in evaluation is whether all offerors ina certain competition are treated fairly and equally.Metropolitan Contract Services, Inc., B-191162, June 14,1978, 78-1 CPD 435. Servo has presented no specificevidence of fraud, abuse of discretion, arbitrary actionor other agency conduct in this procurement which wouldshow that it was treated unfairly or unequally.

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With respect to the Army's technical review con-ducted subsequent to Servo's protest to that agency,Servo, in a letter dated February 22, 1979, submitteddetailed arguments in support of its allegation that theArmy's review procedures were deficient. Servo assertsthat the reviewers did not perform an independent reviewbecause the biases of the original evaluators were trans-mitted to the reviewers. According to Servo, the re-viewers received for review only a list of specific"issues" or problem areas which had been formulated bythe evaluators themselves. In addition, Servo contendsthat the reviewers ignored significant portions of theRFQ's technical evaluation criteria. Moreover, thewritten review submitted by the viewers reveals, inServo's opinion, a complete lack of understanding by thereviewers of the requirements for the FAMAS software andantenna/trailer assembly systems. Finally, Servo claimsas matter of general principle that the review was biasedbecause it was based upon the same biased specificationsas the original evaluation.

From the record, we believe that it is clear thatthe Army's review was not intended to be a second full-blown source selection evaluation. Moreover, the Armyemphatically denies that there were any deficiencies inthe original evaluation or that the evaluation wastainted by bias. The intent of the review, then, wasto give the Army a basis of comparison with respect tothe ratings achieved by the offerors in certain specifiedareas. The record indicates that the results of thereview were consistent with those areas of the originaltechnical evaluation, although the reviewers did find thatServo's technical proposal was unacceptable in many ofthe categories that the evaluators considered it to beacceptable, but only marginally so. Therefore, we feelthat the Army took more than adequate steps to insurethat the original technical evaluation of the proposalswas in fact reasonable.

BURDEN OF PROOF

Servo contends that the Army has failed to produceany evidence of its own and, instead, has submitted un-signed, unsworn and undated statements prepared solelyfor the purpose of answering Servo's protests. Moreover,according to Servo, the Army has failed to address, muchless controvert, the December 19, 1975, back channel

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message which detailed the events surrounding the can-cellation of the TMQ-19. Rather than produce documentsand statements from individuals under its control, Servoargues that the Army has chosen to rely upon mere denials.Under these circumstances, Servo avers that the Army mustbe deemed to have admitted the facts as alleged. In thisregard, Servo asserts that where a party refuses to pro-duce evidence that is within its control, the presumptionarises that the evidence, if produced, would support theallegations of the other party. Servo asserts that thisevidentiary principle, which is firmly established in thelaw and embodies important equitable considerations, mustbe applied by our Office here.

Furthermore, Servo argues that if the Army desiresto avoid application of the above-mentioned evidentiaryprinciple, it should be required to produce all the evi-dence within its possession and control relating to bias.More specifically, Servo requests that we obtain and re-view the technical ratings of certain members of theArmy's proposal evaluation team. Servo believes thatsuch a review will provide additional evidence of biasand prejudice because certain evaluators were members ofcommands within the Army that were primarily responsiblefor the cancellation of the TMQ-19.

The Army contends that Servo has submitted no evi-dence that it or its proposal was given unequal consider-ation with that of Bendix. The Army further takes theposition that Servo has failed to set forth any evidencethat either the determination to cancel the TMQ-19 or theevaluation of the relative merits of the FAMAS technicalproposals lacked a reasonable basis or that there wasfraud or abuse of discretion involved. As to the backchannel message, the Army asserts that the statementsin it that are attributable to persons other than thepreparer of the message are nothing more than hearsay.Since hearsay evidence is ordinarily inadmissible underformal rules of evidence, such evidence should be givenlittle or no weight here by us.

Bendix argues that the back channel message cannotbe evidence of prejudice in the evaluation of the pro-posals submitted under this procurement since the messagewas written almost 27 months before proposals were evensubmitted. As to any review by us of the technical ratingsgiven by the evaluators, Bendix takes the position that

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the circumstances do not call for our review. Bendixasserts that the evidence presented by Servo does notrise to the level required by Advanced Design Corp., andJoseph Legat, supra, to establish allegations of bias andprejudice.

It is the responsibility of the protester to presentevidence sufficient to affirmatively establish the alle-gations made in its protest. Phelps Protection Systems,Inc., B-181148, November 7, 1974, 74-2 CPD 244. Exceptfor the back channel message, Servo has not provided anydocumentary evidence to support its allegations that theevaluation of its proposal was biased. As to the messageitself, we agree with Bendix that in view of the lengthof time that it was prepared prior to the issuance ofthe FAMAS solicitation, this document has no probativevalue on the issue of whether there was bias or prejudicein the technical evaluation. Accordingly, Servo has notmet its burden of proof on this element of its firstprotest. See Fire & Technical Equipment Corp., B-191766,June 6, 1978, 78-1 CPD 415.

With regard to Servo's allegation that the Army hasdocuments and other evidence within its control that arerelevant to Servo's allegations of bias, it is not thepractice of our Office to conduct investigations pursuantto our bid protest function for the purpose of establish-ing the validity of a protester's speculative statements.Mission Economic Development Association, B-182686,August 2, 1976, 76-2 CPD 105. In the absence of evidencedemonstrating bias, we must assume that Servo's allegationsare speculative. See Dependable Janitorial Service andSupply, B-190231, January 3, 1978, 78-1 CPD 1. In addition,where the only evidence before us with regard to an issueconsists of contradictory statements by the protester andthe contracting agency, the protester has failed to carrythe burden of affirmatively proving the matter. SeeTelectro-Mek, Inc., B-185892, July 26, 1976, 76-2 CPD81.

Nor do we think that a review for bias of any ofthe evaluators' technical evaluations is warranted.While we recognized in Joseph Legat Architects, supra,that it is very difficult or impossible for a protesterto establish on the written record--which forms thebasis for our Office's decisions in protests--theexistence of unfair treatment which is allegedly based

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upon the subjective motivations of an agency's procure-ment personnel, we also pointed out that sweeping allega-tions of improper conduct, such as made here, are nosubstitute for'concrete proof. Protester has thus shownno factual basis for its contention that the evaluatorsfrom the Army commands that recommended the TMQ-19 becanceled were biased against it.

THE SECOND PROTEST

Servo states that shortly after the FAMAS solicita-tion was issued, Beukers approached it with the proposi-tion of a merger between the two companies. Servo in-dicates that it was interested in such a merger becauseBeukers' proprietary technology for ground equipment,computer software and certain other components was ex-tremely important for FAMAS. Moreover, Beukers had per-formed the contract with the Army for production of aFAMAS prototype. Therefore, Servo believed that itspossession of Beukers' technology would give it a sub-stantial competitive advantage in the FAMAS procurement.Accordingly, Servo began negotiations with Beukers con-cerning the purchase of this technology and the mergerof the two companies.

Although the merger was never consummated, Servoclaims that an agreement was entered into whereby Servobecame "the sole and exclusive owner" of the above-mentioned technology and Beukers promised to promptlycommence its transference to Servo. However, despitehaving the right to the technology, Servo states thatBeukers has to date failed to deliver it to Servo.According to Servo, no logical or plausible reasonsfor this failure to deliver have been forthcoming fromBeukers.

Servo believes that during the course of the instantprocurement Bendix may have improperly influenced or in-terfered with the required delivery of Beukers' technologyand adversely affected the Army's evaluation of its pro-posal. Servo declares that its proposal included Beukersas a major subcontractor and that it noted in the proposalthat it had "already purchased all of the technology inexistence" at Beukers. Further, Servo informed the Armyin its proposal that it was completing negotitations forthe acquisition of Beukers. While Servo admits thatBeukers notified the Army on May 12, that its acquisition

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by Servo would not be consummated and that it did nothave the financial ability to perform as subcontractorfor Servo, Servo asserts that subsequent to revisingits proposal oh May 26, 1978, to indicate that it hadBeukers' technology and that company's key employees,some party or parties were advising the Army of thestatus of the delivery of the technology. In this re-gard, Servo cites several incidents which occurred be-tween July 11, 1978, and September 1978 to show thatthe Army was being apprised regularly of Beukers' con-tinuing failure to deliver the technology which Servoacquired.

Servo further declares that during the course oflitigation it instituted on November 2, 1978, to compeldelivery of the technology, the president of Beukerswas deposed on November 15, 1978. Servo believes thatduring the taking of this deposition, certain facts werebrought out which support Servo's assertion that Bendixmay have influenced or interfered with the delivery ofBeukers' technology. More specifically, Servo statesthat deposition revealed that during the course of theFAMAS negotiations, Bendix met with the president ofBeukers to discuss the possible acquisition of Beukersby Bendix and during the meeting the issue of Beukers'delivery of its technology to Servo was raised. Also,during the course of negotiations, the president ofBeukers had frequent conversations with Army technicalpersonnel where the subjects of Servo and the status ofthe FAMAS procurement were addressed. Finally, thedeposition revealed that during the course of negotia-tions, a representative of Bendix's subcontractorvisited the president of Beukers and offered him a job.

In light of the foregoing, Servo contends that themeetings Bendix and its subcontractor had with the presi-dent of Beukers could easily and reasonably have servedto encourage Beukers not to deliver its technology toServo. Furthermore, any meeting between Beukers andBendix during the critical period when the FAMAS pro-posals were under evaluation would be of serious concernand highly suspect. When one meeting includes a discus-sion of potential employment, Servo urges that such sus-picions require investigations. Consequently, Servo hassubmitted a list of questions to be answered by the Army

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and by Bendix. In Servo's opinion answers to these ques-tions are required in order to determine both the eligi-bility of Bendix for award of the FAMAS contract and thepropriety of the Army's evaluation of Servo's technicalproposal.

Bendix categorically denies that, alone or in con-junction with any other person or organization, it hasmade any effort or done anything to improperly influenceor interfere with the delivery of critical technology byBeukers to Servo. Further, Bendix contends that the dep-osition transcript has been used out of context by Servoand does not support Servo's allegations. As to theArmy's technical evaluation, Bendix declares that it hasno knowledge of whether Servo's problems with Beukershad any effect on the evaluation of Servo's proposal.However, if Servo did indeed rely on Beukers to supply"critical technology" with respect to its proposed per-formance, the apparent inability of Servo to obtain suchtechnology could have legitimately affected the evalua-tion of its proposal. Moreover,*since it is the avail-ability of the technology that is important to contractperformance, it should not be unreasonable for the Armyto be concerned with such availability rather than whohad legal title.

Bendix argues that Servo is asserting that award toBendix would be in violation of responsibility criteriaestablished in the controlling procurement regulations.Bendix questions the use of a protest to our Office toremind the contracting officer of responsibilities thathe is fully aware of unless the failure of the contract-ing officer to carry out these responsibilities will re-sult in a decision by us that is adverse to him. How-ever, Bendix notes our decisions which hold that we donot review affirmative determinations of responsibilityexcept where fraud is alleged on the part of the con-tracting officer or the solicitation contains definitiveresponsibility criteria which allegedly have not beenapplied. See Central Metal Products, IncorporatedSolicitation No. M2-40-74, 54 Comp. Gen. 66 (1974), 74-2CPD 64, and the cases cited therein. Bendix indicatesthat no specific solicitation responsibility criteria areat issue in the instant procurement.

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After receiving assurances from Servo that it fully ownedthe Beukers technology, the Army completed its technicalevaluation based upon this assurance. However, the Armyalso recognized that if Servo did not possess the tech-nology, there could be a serious impact on Servo's cap-ability to perform in accordance with the times specifiedby the solicitation schedule. Thus, the Army declaresthat its technical evaluators specifically assumedthroughout the evaluation process that Servo owned theBeukers technology and that the transfer of it would infact be completed.

Nevertheless, the Army points out that getting theBeukers technology did not imply that Servo had thecapability to use it. The Army states that as a resultof the failure of the proposed merger, certain key per-sonnel with Beukers would not have been in the employof Servo during the performance of the contract. TheArmy claims that the key personnel had a significantamount of experience in certain key technological areaswhere Servo had little experience. The Army states thatthis point was continually mentioned throughout itsevaluation reports and its effect was to lower the ratingachieved by Servo in the areas of personnel and schedule.The Army emphasizes that section D.3 of the RFQ specifi-cally stated it would evaluate the availability of suffi-cient personnel with the required skill and experience.

In view of the fact that Servo has made no specificallegations of fraud on the part of Army procurementofficials and in view of the fact that Servo has citedno definitive responsibility criteria which the contract-ing officer failed to apply, no basis for review by usof the contracting officer's determination of Bendix'sresponsibility has been provided. See also E. I. du Pontde Nemours & Company, B-191169, June 23, 1978, 78-1 CPD458. It is true that we have held that determinationsas to the responsibility of a bidder or offeror to per-form a contract should be based on the most current in-formation available. See Mayfair Construction Company,B-192023, September 11, 1978, 78-2 CPD 187, and the casescited therein. However, we agree with the Army andBendix that the deposition of the president of Beukersfails to support Servo's allegation that Bendix improp-erly influenced the delivery of the Beukers technologyto Servo. As noted by the Army, the president of Beukers

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specifically stated that nobody influenced Beukers' non-delivery of the technology. Consequently, we do notthink that Servo has offered any new information whichwould impact on, the Army's affirmative determination ofBendix's responsibility.

In the absence of concrete evidence of improper con-duct on the part of Bendix, we must conclude that Servo'sallegations are speculative. Dependable Janitorial Serviceand Supply, supra. Therefore, no investigation pursuantto our bid protest function is required. Mission EconomicDevelopment Association, supra. Moreover, in view of thefact that Servo has failed to provide us with any evidencethat Bendix influenced the delivery of the Beukers tech-nology, the failure of Servo to receive this technologyis solely a matter between it and Beukers and not onefor resolution in a bid protest. See A & J ManufacturingCo., B-191466, November 8, 1978, 78-2 CPD 331.

As to any adverse effect on the Army's evaluationof Servo's proposal caused by Beukers' failure to deliverthe technology, we believe that this is a matter whichdirectly impacts on the technical merits of Servo's pro-posal. In the absence of a clear showing of arbitrari-ness or unreasonableness, we do not question the procuringagency's determination of technical merits of proposals.See Struthers Electronics Corporation, supra. Here, therecord reveals nothing which would indicate unreasonable-ness on the part of the Army in its use of the knowledgethat Servo's merger with Beukers was not consummated andthat Beukers had not delivered critical technology toServo. The Army evaluated Servo's proposal on the assump-tion that this technology would be transferred to Servobefore possible award. Further, we believe that the Armyproperly gave Servo a lower technical rating in the areaof personnel because of Servo's inability to employ keypersonnel within Beukers. In our opinion, the Army eval-uators reasonably determined that Servo would have a longand difficult time learning the technology afterobtaining it.

Finally, in a submission to us dated May 9, 1979,Servo contends that the Army failed to conduct meaningfulnegotiations, as required by DAR § 3-805.3(a) (1976 ed.),regarding Servo's computer software approach. In supportof this contention, Servo refers to the Army's August 4,1978, Interim Technical Evaluation Report of its proposal

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which it recently obtained from the Army pursuant to aFOIA request. Specifically, Servo argues that the Armyneither identified nor conducted any discussion with itconcerning Servo's software approach of using two programlanguages.

Bendix objects to our consideration of this issuebecause of the fact that all parties agreed that finalsubmissions would be made no later than the close ofbusiness March 8, 1979, and that thereafter the recordwould be closed. Further, Bendix argues that any con-sideration by us will be unfair to it since such con-sideration will inevitably delay our decision.

Apparently, Servo is raising an issue,the allegedfactual basis of which it only recently discovered. Inany event, we do not believe that further development ofthe matter is required. Servo cites language from theabove-described report which shows that the Army made"no attempt" to have Servo change its proposal regardingthe software approach during negotiation. However, Servofails to cite the following language which sets forth theArmy's rationale for not attempting to influence Servo tochange its proposal:

"* * * In fact, a change at this latedate would not be considered favorable. Todo so would require a complete developmentfrom scratch which would increase the man-power needs and increase the risk. SCA(Servo) does not show the NAVAID experienceto start from the beginning."

Furthermore, the report indicates that there werelengthy discussions concerning Servo's programming tech-nique. The report states that Servo considered its tech-nique to be a viable approach and not a risk factor.While the Army did not attempt to influence Servo tochange its position on its approach, it apears that Servowas somewhat reluctant, in any case, to change its approach.In this regard, the report concludes that, taking intoconsideration all factors, Servo had probably chosen the"safest approach" for the company. In view of the fore-going, then, we do not believe that the Interim TechnicalEvaluation Report in any way furnishes a basis for Servo'scontention that the Army failed to conduct meaningfulnegotiations with it.

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CONCLUSION

The protests of Servo are denied.

Deputy Comptroller Generalof the United States