B-170377, OCT. 22, 1970

B-170377, OCT. 22, 1970

BID PROTEST - BIDDER RESPONSIVENESS DENIAL OF PROTEST OF JAMES G. BIDDLE COMPANY AGAINST THE AWARD OF A NEGOTIATED CONTRACT FOR 17 PRECISION RESISTANCE MEASURING SYSTEMS TO ELECTRO SCIENTIFIC INDUSTRIES BY THE NAVY PURCHASE OFFICE ON GROUNDS THAT PROTESTANT'S BID WAS NONRESPONSIVE. WHERE BID FAILS TO MEET CERTAIN TECHNICAL REQUIREMENTS-IT DOES NOT ALLOW THE DECADE RESISTANCE STANDARD TO BE USED AS A SEPARATE FOUR TERMINAL STANDARD - THEN IT WAS PROPERLY REJECTED AS NONRESPONSIVE AND GAO WILL NOT UPSET THIS FINDING.

TO JAMES G. BIDDLE COMPANY:

FURTHER REFERENCE IS MADE TO THE COPY OF YOUR LETTER DATED JULY 15, 1970, WITH ENCLOSURES, THE COPY OF YOUR LETTER DATED JULY 28, 1970, AND YOUR LETTER DATED SEPTEMBER 30, 1970, WITH ENCLOSURE, PROTESTING WITH REGARD TO REQUEST FOR PROPOSALS NO. N00123-70-R-1127 ISSUED BY THE NAVY PURCHASING OFFICE, LOS ANGELES, CALIFORNIA.

REQUEST FOR PROPOSALS NO. N00123-70-R-1127 FOR 17 PRECISION RESISTANCE MEASURING SYSTEMS WAS ISSUED JANUARY 14, 1970, WITH A CLOSING DATE FOR RECEIPT OF PROPOSALS OF JANUARY 28, 1970. THE CLOSING DATE WAS SUBSEQUENTLY EXTENDED TO FEBRUARY 11, 1970. IT IS REPORTED THAT THE THREE RESPONSES TO THE SOLICITATION WERE FORWARDED TO THE REQUIRING ACTIVITY FOR TECHNICAL REVIEW. IT IS FURTHER REPORTED THAT TECHNICAL REPRESENTATIVES OF THE ACTIVITY MET WITH THE CONTRACTING OFFICER AND IT WAS DETERMINED THAT YOUR PROPOSAL WAS NONRESPONSIVE TO THE SPECIFICATIONS. YOU PROTEST THE AWARD OF CONTRACT TO ELECTRO SCIENTIFIC INDUSTRIES ALLEGING THAT YOUR EQUIPMENT IS EQUAL AND FUNCTIONALLY EQUIVALENT TO THE EQUIPMENT SPECIFIED IN THE SOLICITATION.

THE CONTRACTING OFFICER'S STATEMENT OF FACTS DATED AUGUST 18, 1970, IS IN PART AS FOLLOWS:

"2. THE PROCUREMENT REQUIREMENT WAS FOR 17 PRECISION RESISTANCE MEASURING SYSTEMS PLUS MANUALS AND APPLICABLE WARRANTY. SEE ENCLOSURE (6) OF THE CONTRACTING OFFICER'S 26 JUN 70 STATEMENT OF FACTS FOR A COPY OF THE FINAL RFP ISSUED. AS INDICATED IN PARAGRAPH 2.1.9 (PAGE 11) OF THAT RFP THESE INSTRUMENTS WERE BEING PROCURED FOR USE IN CALIBRATION LABORATORIES AND IT WAS DESIRED TO PROCURE ONLY STANDARD ARTICLES PREVIOUSLY MANUFACTURED AND REGULARLY SOLD WHICH, IF REQUIRED AT ALL, WOULD REQUIRE ONLY MINOR REVISIONS OR MODIFICATIONS TO MEET ALL THE RFP SPECIFICATION REQUIREMENTS. IT WAS NOT THE INTENT TO ENTER INTO A SPECIAL DEVELOPMENT OR DESIGN CONFIGURATION EFFORT WITH ANY MANUFACTURER TO PRODUCE THE ITEMS FOR THE FIRST TIME. IN HIGHLY PRECISION TYPE INSTRUMENTS, EVEN THE MANUFACTURERS WITH THE FINEST TECHNICAL REPUTATION, REQUIRE TIME TO WORK OUT 'BUGS' IN THEIR FIRST NEW PRODUCTION MODELS. TECHNICAL COMPETITION AMONG COMPANIES IN THE SCIENTIFIC INSTRUMENT INDUSTRY IS EXTREMELY HIGH WHICH RESULTS IN THE CONSTANT DEVELOPMENT OF NEW MODELS BEING OFFERED BY COMPETING COMPANIES. IT WAS THE PURPOSE OF THIS PROCUREMENT TO SOLICIT THESE COMPETITIVE SOURCES FOR THEIR LATEST "PROVEN" PRODUCTS WHICH WOULD MEET THE NAVY CALIBRATION PROGRAM'S CURRENT NEEDS.

"3. THE PRECISION RESISTANCE MEASURING SYSTEM OFFERED BY THE JAMES G. BIDDLE COMPANY DID NOT MEET THE NAVY'S NEED IN PART FOR A SEPARATE KELVIN RATIO BRIDGE AND A SEPARATE DECADE RESISTANCE STANDARD ON REMOVABLE RACKS. SEE PARAGRAPH 2.1.1 OF THE RFP REQUIRING SEPARATE REMOVABLE RACKS AND 2.1.2, 2.1.5 AND 2.1.6 FOR DETAIL SPECIFICATIONS FOR EACH OF THE SEPARATE UNITS. THE JAMES G. BIDDLE COMPANY SYSTEM WAS BUILT AS A SINGLE COMPOSITE UNIT AND DID NOT ALLOW THE BRIDGE PORTION TO BE USED WITH OTHER STANDARD RESISTORS NOR DOES IT ALLOW THE DECADE RESISTANCE STANDARD TO BE USED AS A SEPARATE FOUR-TERMINAL STANDARD. THE REASON THE PROCUREMENT SPECIFICATIONS REQUIRED THE COMPARISON BRIDGE TO HAVE FOUR TERMINAL CONNECTIONS FOR BOTH THE UNKNOWN RESISTOR AND THE STANDARD RESISTOR AND THE REASON FOR FOUR TERMINAL CONNECTIONS ON THE DECADE RESISTOR WAS TO PERMIT MAXIMUM FLEXIBILITY IN THE CALIBRATION OF OTHER FOUR TERMINAL DEVICES CURRENTLY IN THE NAVY INVENTORY SUCH AS, STANDARD RESISTORS AND FOUR TERMINAL BRIDGES. THE BIDDLE COMPANY MODEL 71-131 OFFERED WOULD HAVE TO BE SUBSTANTIALLY REDESIGNED TO MEET THE RFP SPECIFICATION REQUIREMENTS SO AS TO BE COMPATIBLE WITH THE INTENDED USE FOR WHICH THE NAVY WAS MAKING THIS PURCHASE.

"4. THE FACT THAT THE REFERENCED BIDDLE COMPANY MODEL HAS BEEN PURCHASED BY A NAVAL ORDNANCE STATION, OR ANY OTHER GOVERNMENT LABORATORIES INVOLVED IN R&D WORK OR OTHER DIFFERENT FUNCTIONAL MISSIONS OTHER THAN FOR USE AS A CALIBRATION INSTRUMENT ON OTHER FOUR TERMINAL DEVICES IN THE NAVY INVENTORY IS NOT PERTINENT TO THIS REFERENCED PROCUREMENT REQUIREMENT."

IT IS WELL SETTLED THAT THE DRAFTING OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT AND THE DETERMINATION AS TO WHETHER THOSE NEEDS CAN BE MET BY A GIVEN PRODUCT ARE PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING AGENCY. 39 COMP. GEN. 570(1960). THIS RULE IS PARTICULARLY RELEVANT WHERE THE PROCUREMENT COVERS TECHNICAL EQUIPMENT AND DETERMINATIONS ARE BASED ON EXPERT TECHNICAL OPINION. 40 COMP. GEN. 35 (1960). THIS OFFICE HAS CONSISTENTLY FOLLOWED THIS RULE IN NEGOTIATED AS WELL AS FORMALLY ADVERTISED PROCUREMENTS. SEE B-169365, JUNE 30, 1970; B- 166726, JUNE 24, 1970; AND B-168936, MAY 22, 1970.

BASED ON THE RECORD BEFORE US, WE CANNOT CONCLUDE THAT THE ADMINISTRATIVE POSITION, AS QUOTED ABOVE, IS ARBITRARY OR THAT THE SPECIFICATIONS IN QUESTION EXCEED THE GOVERNMENT'S NEEDS. ALTHOUGH YOUR ASSERTION THAT THE SPECIFICATIONS ARE RESTRICTIVE MAY BE TRUE TO THE EXTENT THAT THEY PREVENT YOU FROM SUBMITTING A RESPONSIVE OFFER WITHOUT CHANGING YOUR EQUIPMENT TO INCORPORATE SUCH FEATURES, IN THIS SENSE ALL SPECIFICATIONS ARE RESTRICTIVE SINCE THE REQUIREMENTS THEY ESTABLISH PRECLUDE THE PURCHASE OF NONCONFORMING ITEMS. HOWEVER, THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED, NOR DO THE PROCUREMENT REGULATIONS CONTEMPLATE THAT MANUFACTURERS OR PROSPECTIVE OFFERORS BE ALLOWED TO DICTATE SPECIFICATIONS OVER AGENCY OBJECTIONS.

ACCORDINGLY, FOR THE REASONS STATED, YOUR PROTEST IS DENIED.