B-170654, JAN 6, 1971

B-170654, JAN 6, 1971

BID PROTEST - TECHNICAL INADEQUACY DENIAL OF PROTEST BY LOW BIDDER AGAINST SOLICITATION FOR THERMOSTATIC SWITCHES ISSUED BY THE DEFENSE ELECTRONIC SUPPLY CENTER, AND AWARD TO K ELECTRONICS, INC., SECOND LOW BIDDER. A REQUEST FOR QUOTATIONS ON A PARTICULAR TYPE THERMOSTATIC SWITCH AND A RESPONSE BY PROTESTANT QUOTING ON THEIR OWN PART WHICH WAS FOUND TECHNICALLY UNACCEPTABLE BY THE DIRECTORATE OF TECHNICAL OPERATIONS AND THE DESC DETERMINED THAT AVAILABLE DATA WAS INSUFFICIENT TO EVALUATE PROTESTANT'S OFFER OF AN ALTERNATIVE ITEM AND WHERE ADMINISTRATIVE REPORT INDICATED SUCCESSFUL BIDDER CAN SUPPLY THE APPROVED ITEM, THERE IS NO BASIS FOR PROTEST, AND IT IS THEREFORE DENIED.

TO TYCO INCORPORATED:

WE REFER TO YOUR LETTER OF AUGUST 19, 1970, AND SUBSEQUENT CORRESPONDENCE, RELATING TO YOUR PROTEST AGAINST AWARD TO ANOTHER FIRM UNDER SOLICITATION NO. D0943150.

THE RECORD INDICATES THAT THE CONTRACTING OFFICER AT THE DEFENSE ELECTRONICS SUPPLY CENTER, DAYTON, OHIO, RECEIVED A PURCHASE REQUEST ON APRIL 23, 1970, FOR 437 EACH, FEDERAL STOCK NUMBER 5930-548-7346, THERMOSTATIC SWITCHES, DETROIT DIESEL ENGINE DIVISION OF GENERAL MOTORS CORPORATION PART NUMBER 5173018. THIS PART IS A REPLACEMENT ITEM IN SUPPORT OF A DIESEL DRIVEN GENERATOR SET, TYPE MB-2, AND THE DATA AVAILABLE AT DESC DIRECTORATE OF TECHNICAL OPERATIONS WAS INCOMPLETE FOR THE PART AND DETROIT DIESEL HAD REPEATEDLY DECLINED TO FURNISH COMPLETE DATA FOR THE PART. THE CONTRACTING OFFICER THEREAFTER MADE A DETERMINATION PURSUANT TO 10 U.S.C. 2304(A)(10) THAT IT WAS IMPRACTICABLE TO OBTAIN COMPETITION BY FORMAL ADVERTISING AND, PURSUANT TO ASPR 3- 210.2(XV), THAT ONLY THE DETROIT DIESEL ENGINE PART WOULD SATISFY THE REQUIREMENT AND ENSURE STANDARDIZATION AND INTERCHANGEABILITY OF PARTS BECAUSE FULLY ADEQUATE DATA AND QUALITY ASSURANCE PROCEDURES WERE NOT AVAILABLE.

A REQUEST FOR QUOTATIONS WAS ISSUED ON APRIL 27, 1970, FOR 437 THERMOSTATIC SWITCHES, DETROIT DIESEL ENGINE PART NUMBER 5173018. THE FOUR FIRMS THAT HAD RESPONDED IN THE PREVIOUS SOLICITATION OF THE ITEM, DSA900-69-R-2757, WERE SOLICITED AND ALL FOUR RESPONDED WITH QUOTATIONS AS FOLLOWS:

FIRM UNIT PRICE TOTAL PRICE

TYCO, INC. $ 14.90 $ 6,511.30

K ELECTRONICS, INC. 15.15 6,620.55

ARGENT INDUSTRIES, INC. 15.25 6,664.25

DETROIT DIESEL 16.9773 7,419.13

DETROIT DIESEL AND YOUR COMPANY QUOTED AS MANUFACTURERS AND THE OTHER TWO FIRMS AS SUPPLIERS. YOU SUBMITTED A TRANSMITTAL LETTER WITH YOUR QUOTATION STATING THAT YOU WERE BIDDING ON YOUR PART NUMBER 2500-423B AND ATTACHED YOUR DRAWING OF THIS PART. YOU FURTHER STATED YOU HAD PREVIOUSLY SENT DATA AND PHOTOGRAPHS IN RESPONSE TO THE PREVIOUS SOLICITATION FOR THIS ITEM. THE CONTRACTING OFFICER FORWARDED YOUR QUOTATION TO DESC DIRECTORATE OF TECHNICAL OPERATIONS FOR TECHNICAL EVALUATION. THE DIRECTORATE OF TECHNICAL OPERATIONS CONSIDERED YOUR QUOTATION TECHNICALLY UNACCEPTABLE BUT FORWARDED IT TO DESC DIRECTORATE OF ENGINEERING STANDARDIZATION FOR FURTHER EVALUATION. DURING THE EVALUATION YOU WERE ASKED IF YOU WOULD QUOTE ON THE DETROIT DIESEL PART NUMBER ONLY, AND YOU RESPONDED BY TELEGRAM OF JUNE 3, 1970, THAT YOUR PART NUMBER WOULD BE BUILT STRICTLY IN ACCORD WITH THE DETROIT DIESEL PART NUMBER CALLED FOR IN THE SOLICITATION AND THAT BOTH PART NUMBERS WOULD APPEAR ON THE COVER. JUNE 8, 1970, THE DIRECTORATE OF ENGINEERING STANDARDIZATION MADE A DETERMINATION THAT DATA AVAILABLE TO IT WAS NOT SUFFICIENT TO EVALUATE ANY ALTERNATIVE ITEM, AND IT THEREFORE RECOMMENDED THAT AWARD BE LIMITED TO THE PART NUMBER CALLED FOR IN THE INVITATION. UPON RECEIPT OF THIS DETERMINATION, THE CONTRACTING OFFICER AWARDED A CONTRACT TO K ELECTRONICS FOR 437 EACH, DETROIT DIESEL ENGINE PART NUMBER 5173018, AT A UNIT PRICE OF $15.15 AND A TOTAL PRICE OF $6,620.55, EFFECTIVE JULY 15, 1970.

YOUR LETTER OF PROTEST TO DESC, DATED JULY 20, 1970, DISAGREED WITH THE DETERMINATION THAT AVAILABLE DATA WAS INSUFFICIENT TO EVALUATE YOUR OFFER OF AN ALTERNATIVE ITEM. YOU EXPRESSED YOUR BELIEF THAT THE DATA SENT WITH YOUR RESPONSE TO THE FORMER SOLICITATION WAS ACCEPTABLE BECAUSE IT WAS NOT REJECTED UNDER THAT FORMER SOLICITATION AND BECAUSE YOU RECEIVED THE CURRENT SOLICITATION.

BY LETTER OF AUGUST 4, 1970, DESC REJECTED YOUR PROTEST, POINTING OUT THAT THE DATA YOU SUBMITTED IN THE PREVIOUS PROCUREMENT WAS NOT EVALUATED, AS YOU WERE NOT THE LOW OFFEROR, BUT THAT YOUR NAME WAS RETAINED FOR SOLICITATION PURPOSES ON FUTURE PROCUREMENTS. WHEN THE AVAILABLE DATA WAS EVALUATED IN THE CURRENT PROCUREMENT, DESC FOUND IT TO BE INSUFFICIENT AND CONSEQUENTLY REJECTED YOUR PROPOSAL.

YOUR LETTER OF AUGUST 10, 1970, TO DESC AGAIN DISPUTED THEIR DETERMINATION THAT THE DATA WAS INSUFFICIENT AND ADDED YOUR BELIEF THAT K ELECTRONICS COULD NOT PURCHASE THE PART FROM GENERAL MOTORS AND SELL IT TO THE GOVERNMENT FOR THE CONTRACT PRICE UNLESS K ELECTRONICS IS A DIVISION OF GENERAL MOTORS, BUT YOU STATED THAT COMMERCIAL RECORDS INDICATE OTHERWISE. YOU FURTHER ASSERTED THAT SINCE K ELECTRONICS IS NOT A DIVISION OF GENERAL MOTORS, IT CANNOT SUPPLY THE APPROVED ITEM BUT WOULD BE SUPPLYING A SUBSTITUTE ITEM.

YOUR ASSERTIONS REGARDING DELIVERY OF THE ITEMS CALLED FOR IN THE CONTRACT ARE REFUTED BY THE ADMINISTRATIVE REPORT IN THIS MATTER, WHICH INCLUDES A COPY OF A CERTIFICATION DATED AUGUST 12, 1970, FROM GREAT LAKES DIESEL CO., CLEVELAND, OHIO, THAT IT IS AN AUTHORIZED DISTRIBUTOR FOR DETROIT DIESEL; THAT IT SHIPPED THE ITEMS CALLED FOR IN THE CONTRACT BETWEEN K ELECTRONICS AND DESC ACCORDING TO K ELECTRONICS' SHIPPING INSTRUCTIONS; AND THAT THE ITEMS WERE IN THE QUANTITIES AND OF THE QUALITY CALLED FOR AND WERE IN ALL RESPECTS IN ACCORD WITH THE APPLICABLE SPECIFICATION.

THIS LEAVES, AS THE BASIS FOR YOUR PROTEST, YOUR CONTENTION THAT THE DATA YOU SUBMITTED WAS ADEQUATE TO SUPPORT A DETERMINATION THAT THE SWITCH YOU OFFERED WOULD MEET THE NEEDS OF THE GOVERNMENT.

THE RECORD INDICATES THAT, AT THE TIME OF THE TECHNICAL EVALUATION OF YOUR PROPOSAL, DESC DIRECTORATE OF TECHNICAL OPERATIONS HAD IN ITS FILES A COPY OF DETROIT DIESEL ENGINE DIVISION OF GENERAL MOTORS CORPORATION DRAWING 5173018, REV. A, WHICH DRAWING HAD BEEN REVIEWED AND FOUND INADEQUATE FOR COMPETITIVE PROCUREMENT. IN A DETERMINATION DATED SEPTEMBER 15, 1967, IT WAS STATED THAT UNTIL SUCH TIME AS ADEQUATE DATA BECAME AVAILABLE, THE ONLY ITEM ACCEPTABLE WOULD BE DETROIT DIESEL PART NUMBER 5173018. THIS DETERMINATION IS IN ACCORD WITH THE PROVISIONS OF ASPR 3-210.2(XV), AND WE ARE ADVISED THAT DETROIT DIESEL HAS CONTINUED TO DECLINE TO FURNISH ADEQUATE DATA DESPITE REPEATED ATTEMPTS ON THE PART OF DESC TO OBTAIN THIS DATA.

YOU SUBMITTED A COPY OF A DRAWING WITH YOUR OFFER UNDER SOLICITATION DSA 900-69-R-2757 WHICH YOU IDENTIFIED IN YOUR TRANSMITTAL LETTER OF JANUARY 21, 1969, AS "A COPY OF THE ORIGINAL DRAWING REFERENCED IN THE SCHEDULE." THIS DRAWING DOES NOT BEAR THE NAME OF DETROIT DIESEL OR ANY OTHER COMPANY EXCEPT THAT IT IS MARKED "PROPRIETARY PRINT" BY RUBBER STAMP, AND IT BEARS A RESTRICTIVE LEGEND STATING THAT IT IS THE PROPERTY OF TYCO, WHICH SUGGESTS THAT THE DRAWING WAS MADE BY YOUR COMPANY. ALTHOUGH THE CONTRACTING OFFICER HAD NO ASSURANCE THAT THE DRAWING WAS, IN FACT, A DRAWING OF DETROIT DIESEL OR ONE OF ITS APPROVED SUPPLIERS, THE DRAWING WAS EXAMINED BY ENGINEERING PERSONNEL WHO STATED THAT EVEN IF IT IS ASSUMED THAT THE DRAWING IS A DETROIT DIESEL DRAWING, THE DATA THEREON IS INCOMPLETE AND NOT SUFFICIENT FOR EVALUATION OF AN ALTERNATIVE ITEM.

WHILE IT IS A MATTER PRIMARILY WITHIN THE ADMINISTRATIVE RESPONSIBILITY OF THE CONTRACTING AGENCY TO DETERMINE THE TECHNICAL ADEQUACY OF PROPOSALS, WE HAVE ALSO EXAMINED A COPY OF THE DETROIT DIESEL DRAWING WHICH WAS FOUND TECHNICALLY INADEQUATE ON SEPTEMBER 15, 1967, AND A COPY OF THE DRAWING WHICH YOU SUBMITTED ON JANUARY 21, 1969, AS A COPY OF THE ORIGINAL DRAWING OF THE SWITCH IN QUESTION. BASED UPON SUCH EXAMINATION, WE FIND NO BASIS UPON WHICH WE MAY PROPERLY DISAGREE WITH THE ADMINISTRATIVE DETERMINATIONS THAT THE DATA IN EACH OF THE DRAWINGS IS INCOMPLETE AND INSUFFICIENT FOR EVALUATION OF AN ALTERNATIVE ITEM.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.