B-150271, FEB. 4, 1963

B-150271, FEB. 4, 1963

TO SPECIALTY ELECTRONICS DEVELOPMENT CORPORATION:

IN YOUR LETTERS OF NOVEMBER 13 AND DECEMBER 13, 1962, YOU PROTEST THE AWARD OF A CONTRACT ISSUED UNDER WEATHER BUREAU REQUEST FOR PROPOSALS 2- 62, FOR A MARINE AUTOMATIC METEOROLOGICAL OBSERVING STATION, HEREINAFTER REFERRED TO AS MAMOS, TO CARDION ELECTRONICS, INCORPORATED.

THE RECORD ESTABLISHES THAT THE MAMOS IS SIMILAR IN MANY RESPECTS TO AN ANCHORED BUOY, DEVELOPED BY THE NATIONAL BUREAU OF STANDARDS AND THE U.S. NAVY BUREAU OF NAVAL WEAPONS, WHICH TRANSMITTED WEATHER DATA TO SHORE ESTABLISHMENTS. SINCE THE REQUIRED MODIFICATIONS OF THIS BUOY LACKED DEFINITE SPECIFICATIONS, BIDDERS WERE ADVISED THAT THEIR PROPOSALS WOULD NOT BE EVALUATED SOLELY ON THE BASIS OF PRICE BUT THAT SUCH FACTORS AS THE CAPACITY OF THE SYSTEM TO MEET THE NEEDS OF THE WEATHER BUREAU WOULD ALSO BE CONSIDERED.

YOUR PROPOSAL WAS DETERMINED TO BE LESS DESIRABLE BECAUSE THE METHOD PROPOSED FOR MEASURING WIND DIRECTION WAS UNSATISFACTORY AND BECAUSE INFORMATION REGARDING THE EXTENT OF TRANSISTOR CIRCUITY WAS NOT SUFFICIENT FOR ADEQUATE TECHNICAL EVALUATION. YOU ALLEGE THAT THE WEATHER BUREAU INDICATED IN A CONFERENCE PRIOR TO AWARD THAT IT UNDERSTOOD THE METHOD BY WHICH YOU PROPOSED TO MEASURE WIND DIRECTION, AND CONCURRED IN ITS USE. HOWEVER, SINCE IN YOUR VIEW THE WEATHER BUREAU'S EXPLANATION OF WHY YOUR PROPOSED METHOD WAS UNACCEPTABLE INDICATED THAT THE BUREAU DID NOT UNDERSTAND YOUR APPROACH, YOU SUBMITTED WHAT YOU REGARDED AS A MORE DETAILED EXPLANATION OF HOW YOU INTENDED TO AVERAGE WIND DIRECTION. FURTHERMORE, YOU IMPLY THAT IF THE WEATHER BUREAU HAD CONSULTED, AS YOU REQUESTED, WITH THE BUREAU OF STANDARDS AND THE BUREAU OF NAVAL WEAPONS, IT WOULD HAVE BEEN MORE ABLE TO PROPERLY EVALUATE YOUR PROPOSAL.

THE WEATHER BUREAU REPORTS THAT YOUR INITIAL PROPOSAL FOR MEASURING WIND DIRECTION WOULD HAVE USED AN ARITHMETICAL AVERAGE THAT COULD YIELD AN ANSWER 180 DEGREES IN ERROR. IT ALSO STATES THAT YOU WERE TOLD IN THE CONFERENCE REFERRED TO THAT THIS METHOD WAS UNACCEPTABLE. FURTHERMORE, THE WEATHER BUREAU REGARDS YOUR SUBSEQUENT "EXPLANATION" OF YOUR METHOD AS A NEW AND DIFFERENT PROPOSAL, WHICH IS ALSO NOT DESIRABLE, BECAUSE "COORDINATE POINTS ON THE X-Y AXES ARE NOT IN A DIRECT OR "ONE-TO-ONE" RELATIONSHIP WITH THE ULTIMATE OUTPUT," AND BECAUSE "THE TRANSFORMATION OF CARTESIAN COORDINATES TO POLAR COORDINATES SACRIFICES THE ACCURACY DESIRED.' IN ADDITION, IT STATES THAT RESPONSIBLE PERSONNEL IN BOTH THE BUREAU OF STANDARDS AND THE BUREAU OF NAVAL WEAPONS WERE SOLICITED FOR ADVICE AND RECOMMENDATIONS ON PROPOSALS FOR THE MAMOS.

IN REGARD TO THE USE OF TRANSISTORS, YOU ALLEGE THAT YOU AGREED TO USE TRANSISTORS WHEREVER FEASIBLE, AND THAT IT WOULD HAVE BEEN IRRESPONSIBLE FOR YOU TO HAVE OFFERED THE USE OF TRANSISTORS THROUGHOUT THE SYSTEM WITHOUT FIRST EVALUATING THE FEASIBILITY THROUGH ACTUAL PERFORMANCE. THE WEATHER BUREAU REPORTS THAT YOUR PROPOSAL, WHILE MENTIONING TRANSISTORS, INCLUDES MANY SUBUNITS WHERE TUBES WERE MENTIONED AND PICTORIALLY DISPLAYED, AND MAKES NO MENTION OF THE USE OF TRANSISTORS IN THE DATA PROCESSING SUBSYSTEM AS REQUIRED BY PARAGRAPH 3.9.6.4 OF THE REQUEST FOR PROPOSALS.

IN NEGOTIATED PROCUREMENTS, THE RULES OF FORMALLY ADVERTISED COMPETITIVE BIDDING, SUCH AS THE REQUIREMENT FOR AWARD TO THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER, ARE NOT APPLICABLE AND THE NEGOTIATION AUTHORITY MAY LEGALLY TAKE INTO CONSIDERATION ALL FACTORS DEEMED ESSENTIAL TO THE ACCOMPLISHMENT OF THE PROCUREMENT. SEE B 130216, DATED APRIL 4, 1957, AND B-146688, DATED OCTOBER 9, 1961. THE FACT THAT MORE WEIGHT IS GIVEN TO EVALUATION FACTORS OTHER THAN COST DOES NOT IN ITSELF RENDER ILLEGAL AN AWARD OF A CONTRACT MADE ON THAT BASIS. SEE 40 COMP. GEN. 508. IN THE INSTANT CASE THE WEATHER BUREAU DETERMINED THAT YOUR PROPOSAL WAS TECHNICALLY INSUFFICIENT TO MEET ITS MINIMUM NEEDS. THE QUESTION OF WHETHER THIS DETERMINATION WAS CORRECT IS NOT ORDINARILY CONSIDERED TO BE WITHIN THE JURISDICTION OF THIS OFFICE. IN OUR DECISION B-139830, DATED AUGUST 19, 1959, WE MADE THE FOLLOWING OBSERVATION:

"THIS OFFICE HAS NEITHER AN ENGINEERING STAFF NOR A TESTING LABORATORY TO EVALUATE THE TECHNICAL ASPECTS OF SPECIFICATIONS. MOREOVER, IN DISPUTES OF FACT BETWEEN A PROTESTANT AND A GOVERNMENT AGENCY, WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT. WHETHER A PARTICULAR BID IS RESPONSIVE TO THE TECHNICAL DETAILS OF THE SPECIFICATIONS IS NOT A MATTER, ORDINARILY, FOR OUR DETERMINATION. * *

IN THIS REGARD, WE HELD IN OUR DECISION B-143389, DATED AUGUST 26, 1960, AS FOLLOWS:

"THE QUESTION AS TO THE ACTION, IF ANY, WHICH OUR OFFICE SHOULD TAKE IN CASES INVOLVING THE EVALUATION OF TECHNICAL REQUIREMENTS OF SPECIFICATIONS, ETC., HAS BEEN THE SUBJECT OF A NUMBER OF DECISIONS BY OUR OFFICE. YOUR PROTEST IS BASED UPON SUCH AN EVALUATION. OF NECESSITY, OUR OFFICE HAS ESTABLISHED A RULE GOVERNING SUCH SITUATIONS. IN A DECISION DATED JANUARY 8, 1938, TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, PUBLISHED AT 17 COMP. GEN. 554, 557, WE SET FORTH THE FOLLOWING RULE WHICH WE CONSIDER TO BE CONTROLLING IN THE INSTANT MATTER:

" "IT IS IN THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS, AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THOSE SPECIFICATIONS. * * *" "

THE CONTRACTING AGENCY HAS DETERMINED THAT THE AWARD TO CARDION WAS PROPER SINCE IT WAS THE LOWEST OFFEROR WHO MET ALL THE REQUIREMENTS OF THE SPECIFICATIONS. IN VIEW OF THE WIDE DISCRETION VESTED IN ADMINISTRATIVE OFFICIALS IN NEGOTIATED PROCUREMENTS, AND SINCE IT IS NOT SHOWN THAT THESE OFFICIALS FAILED TO EXERCISE THEIR BEST JUDGMENT IN MAKING THE AWARD, WE DO NOT FEEL THAT THE FAILURE TO AWARD THE CONTRACT TO YOUR FIRM WAS IMPROPER.