B-157151, DEC. 10, 1965

B-157151, DEC. 10, 1965

TO CHESAPEAKE INSTRUMENT CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 4, 1965, RELATIVE TO OUR DECISION B-157151, AUGUST 25, 1965, WHICH DENIED YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. 600-376-65, ISSUED APRIL 26, 1965, BY THE NAVY PURCHASING OFFICE.

THE PROCUREMENT IN QUESTION INVOLVED THE PURCHASE OF 85 REGULATING LINE AMPLIFIERS AND TECHNICAL MANUALS TOGETHER WITH PROVISIONING DOCUMENTATION AND SPARE PARTS. THE RECORD SHOWED THAT YOU HAD FAILED TO FURNISH TO THE DEPARTMENT OF THE NAVY, AS REQUIRED BY THE EXPRESS PROVISIONS OF THE IFB, ADEQUATE DESCRIPTIVE DATA TO ENABLE THE CONTRACTING OFFICER TO DETERMINE FROM YOUR BID WHETHER THE EQUIPMENT YOU OFFERED WOULD MEET THE DEPARTMENT'S REQUIREMENTS AS SET FORTH IN THE SPECIFICATIONS. ACCORDINGLY, OUR DECISION HELD THAT SUCH DEFICIENCY CONSTITUTED A PROPER BASIS UNDER THE APPLICABLE PROCUREMENT STATUTE, 10 U.S.C. 2305 (C), AND ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-404.2 (A) FOR THE REJECTION OF YOUR LOW BID.

IN YOUR LETTER OF OCTOBER 4, YOU TAKE ISSUE WITH THE NAVY REPORT ON THE MATTER OF THE ADEQUACY OF YOUR DESCRIPTIVE DATA. FOLLOWING IS A LIST OF THE AREAS IN WHICH THE DEPARTMENT REPORTED DATA DEFICIENCIES IN YOUR BID, YOUR COMMENTS THEREON, AND THE DEPARTMENT'S REPLY TO SUCH COMMENTS:

1. "OFFERS NO NOMENCLATURE OR MANUFACTURER'S DATA.'

YOUR COMMENT: "THE REQUIREMENT AS LISTED IN THE REQUIREMENTS FOR DESCRIPTIVE LITERATURE IS QUOTED AS FOLLOWS: "1. PHYSICAL DIMENSIONS,MANUFACTURER, MODEL AND NOMENCLATURE, IF ANY.' CHESAPEAKE SUBMITTED A PROPOSAL TO DESIGN AN INSTRUMENT MEETING THIS SPECIFICATION. THIS INSTRUMENT DID NOT CARRY ANY NOMENCLATURE, AS IT WAS NOT NECESSARY TO ASSIGN ANY FOR THE SIMPLE REASON THAT THE SPECIFICATION REQUIRED THIS TO BE FURNISHED ONLY IF ANY EXISTED. THE INCLUSION OF THE WORDS "IF ANY" ELIMINATE THE NEED FOR THIS INFORMATION. CONSEQUENTLY, IT IS APPARENT THAT YOUR OBJECTION IS NOT VALID.'

NAVY REPLY: "CHESAPEAKE INSTRUMENT CORPORATION MISQUOTED THE STATEMENT CONTAINED IN THE IFB BY INSERTING A COMMA BETWEEN "NOMENCLATURE" AND "IF ANY.' "IF ANY" APPLIES ONLY TO THE WORD ,NOMENCLATURE" AND WAS INSERTED SINCE MANY MANUFACTURER'S PRODUCTS HAVE NOT BEEN ASSIGNED AN NOMENCLATURE. HOWEVER THIS DID NOT DISPENSE WITH THE REQUIREMENT CONCERNING THE MANUFACTURER AND MODEL. NO STATEMENT WAS MADE AS TO WHETHER CHESAPEAKE ACTUALLY HAS OR HAS NOT MANUFACTURED SUCH AN AMPLIFIER.'

(IT SHOULD BE NOTED THAT THE EXACT WORDING OF ITEM 1 IN THE DESCRIPTIVE LITERATURE REQUIREMENT ON PAGE 3 OF THE IFB IS: "PHYSICAL DIMENSIONS, MANUFACTURER, MODEL AND AN NOMENCLATURE IF ANY.''

2. "THE OVERALL POWER REQUIREMENTS OF 5 WATTS IS UNUSUALLY LOW IN COMPARISON WITH EXISTING UNITS WHICH REQUIRE 25 OR MORE WATTS OF POWER.'

YOUR COMMENT: "UPON REEXAMINATION OF OUR SUBMITTED PROPOSAL SCHEMATIC DIAGRAM AND POWER SUPPLY CONSUMPTION, WE HAVE REAFFIRMED THAT THE POWER REQUIREMENT OF 5 WATTS IS CONSIDERABLY MORE THAN ADEQUATE FOR THIS INSTRUMENT AS DESIGNED BY CHESAPEAKE. AN EVALUATION OF THE CHESAPEAKE EQUIPMENT'S DESIGN AS SUBMITTED IN DETAIL BY A COMPETENT ELECTRONICS ENGINEER WILL DISCLOSE THAT 5 WATTS INPUT POWER IS MORE THAN ADEQUATE FOR THE EQUIPMENT'S OPERATION. IT APPEARS THAT OUR EQUIPMENT WAS NOT EVALUATED ON ITS OWN MERIT BUT RATHER COMPARED TO DESIGNS OF LESS EFFICIENCY.'

NAVY REPLY: "WHILE THE NAVY IS ALWAYS INTERESTED IN SAVING ELECTRICAL POWER, A REVIEW OF THE ONLY ACCEPTABLE AMPLIFIER NOW USED BY THE NAVAL SHORE ACTIVITIES, THE STELMA MODEL RA-12, SHOWS A POWER REQUIREMENT OF 25 WATTS. SINCE CHESAPEAKE MADE NO MENTION OF INCREASED EFFICIENCY RESULTING FROM A NEW DESIGN RADICALLY REDUCING THE POWER REQUIREMENTS, IT WAS ASSUMED THAT CONVENTIONAL TECHNIQUES WERE INVOLVED. LACKING THIS VITAL INFORMATION, IT BECAME MANDATORY TO USE EXISTING KNOWLEDGE IN REACHING A JUDGMENT ON WHAT THE POWER REQUIREMENT SHOULD BE IN ORDER TO MEET THE PERFORMANCE REQUIREMENTS OF THE SPEC.'

3. "NO DETAILS ARE GIVEN ON ALIGNMENT PROCEDURES.'

YOUR COMMENT: "PARAGRAPH 4, PAGE 1, OF OUR SUBMITTED DESCRIPTIVE LITERATURE ADEQUATELY DESCRIBES AN ALIGNMENT PROCEDURE WHICH MAY BE FOLLOWED BY ANY COMPETENT TECHNICIAN. THE POSITIVE STATEMENT "NO DETAILS" IS NOT CORRECT.'

NAVY REPLY: "DETAILS AS TO SPECIFIC CONTROLS TO BE ADJUSTED AND THEIR IDENTIFICATION IN THE SCHEMATIC WERE NOT FURNISHED. AS A MATTER OF FACT, REFERENCE IS MADE TO AN "AGC" WHILE THE SCHEMATIC DOES NOT SHOW SUCH A CONTROL. FURTHER, THE DETAILED STEPS AND THE ORDER TO BE FOLLOWED IN REACHING AN ALIGNED POSITION ARE NOT DELINEATED. IN LIEU THEREOF, CHESAPEAKE HAS INSERTED TWO GENERAL STATEMENTS INTO WHICH THE EVALUATOR APPARENTLY IS EXPECTED TO READ SPECIFIC PROCEDURES. THE EVALUATOR COULD MAKE NO SUCH ASSUMPTIONS.'

4. "IN CONNECTION WITH SAFETY FEATURES THERE IS NO DISCUSSION OF GROUND CONDUCTORS OR GROUND POTENTIALS OF EXTERNAL METAL PARTS AS REQUIRED BY MIL -E-16400.'

YOUR COMMENT: "THE REQUIREMENTS OF THE SOLICITATION CALLED OUT THAT MIL-E -16400 APPLIED. CHESAPEAKE FULLY REALIZED THIS REQUIREMENT WAS NECESSARY AND SUBMITTED OUR BID IN COMPLETE COMPLIANCE WITH THIS AND OTHER APPLICABLE SPECIFICATIONS. IT IS NOT CUSTOMARY FOR BIDDERS TO REITERATE EACH AND EVERY SPECIFICATION CALLED OUT IN APPLICABLE MILITARY SPECIFICATIONS STATING POSITIVELY THAT THEY WILL COMPLY WITH INDIVIDUAL REQUIREMENTS. THE FACT THAT WE SIGNED AND SUBMITTED A FULLY COMPLIANT BID INDICATES THAT WE ARE NOT ONLY COGNIZANT OF BUT LEGALLY BOUND TO MEET ALL SPECIFIED REQUIREMENTS.'

NAVY REPLY: "EXPERIENCE HAS SHOWN THAT A MERE STATEMENT OF CONFORMANCE TO SUCH A SPEC. AS MIL-E-16400, HAS PRODUCED EQUIPMENT WHICH WAS UNSAFE FOR HANDLING BY PERSONNEL UNDER A GIVEN CONDITION. THE SPECIFIC REQUIREMENT FOR GROUND POTENTIAL OF ALL EXTERNAL METAL PARTS AND THE INCLUSION OF A GROUND WIRE IN THE INTERCONNECTING CABLE ARE MANDATORY REQUIREMENTS FOR THE SAFETY OF OPERATING PERSONNEL. CHESAPEAKE DOES NOT SHOW AN APPRECIATION OF THIS REQUIREMENT IN HIS PROPOSAL.'

5. "WHILE RFI SUPPRESSION IS DISCUSSED, THE BIDDER MAKES NO REFERENCE TO AN ATTEMPT TO MEET MIL-I-16910 AS REQUIRED.'

YOUR COMMENT: "SAME AS 4. ABOVE.'

NAVY REPLY: "QUALITATIVE COMPLIANCE WITH THE REQUIREMENTS OF MIL-I 16910 AS IT APPLIES TO THIS PARTICULAR SPECIFICATION IS NOT ASSURED BY THE BIDDER'S APPROACH. COMPLETE COMPLIANCE, AS IS IMPLIED IN THE APPLICABLE COMMENT, TO SPECIFICATION MIL-I-16910 IS NOT REQUIRED. IN FACT, IN THIS PROCUREMENT IT IS SPECIFICALLY EXCEPTED IN PARAGRAPH 3.1.8 OF THE GOVERNING PURCHASE DESCRIPTION, PD 1462-120 DATED 28 JULY 1965.'

6. "THERE IS NO DISCUSSION OF THE FUNCTIONAL RELATIONSHIP BETWEEN PARTS OF THE BLOCK DIAGRAM.'

YOUR COMMENT: "A DISCUSSION OF THE FUNCTIONAL RELATIONSHIP AS REQUIRED APPEARS ON PAGE 5, PARAGRAPH 8, OF OUR SUBMITTED DESCRIPTIVE LITERATURE. THE COMMENT ABOVE IS NOT CORRECT.'

7. "THERE IS NO TUTORIAL NARRATIVE ON THE SCHEMATIC DIAGRAM. IN THIS CONNECTION NO REFERENCE IS MADE TO THE EXPANSION AND COMPRESSION TIME CONSTANTS REQUIRED. THERE IS NO INDICATION AS TO LEVEL CONTROLS ON THE AMPLIFIER CARDS. NO REFERENCE TO NOR DISCUSSION OF DISTORTION OR FREQUENCY RESPONSES GIVEN.'

YOUR COMMENT: "ITEM 8 OF THE REQUIREMENTS FOR DESCRIPTIVE LITERATURE IS AS FOLLOWS: "BLOCK AND SCHEMATIC DIAGRAMS WITH TUTORIAL NARRATIVES.' OUR SUBMITTED DESCRIPTIVE LITERATURE CONTAINS BLOCK AND SCHEMATIC DIAGRAMS AS REQUIRED. ON PAGE 5, PARAGRAPH 8 ENTITLED "BLOCK AND SCHEMATIC DIAGRAM DISCUSSION," WE HAVE FULLY COMPLIED WITH THE REQUIREMENTS THEREOF. AGAIN WE MUST POINT OUT THAT THE STATEMENT CONTAINED ABOVE IS NOT CORRECT.'

NAVY REPLY TO YOUR COMMENTS ON 6 AND 7:"THE BLOCK DIAGRAM IS MENTIONED AS BEING SHOWN IN FIGURE 2. THE DISCUSSION OF THE RELATIONSHIP BETWEEN PARTS OF THIS DIAGRAM ARE GENERAL AND INADEQUATE. A POINT-TO-POINT DISCUSSION OF FLOW FROM INPUT TO OUTPUT IS NOT INCLUDED. FURTHER, THE INCLUSION OF SCHEMATIC DIAGRAM (SHOWN IN FIGURE 3) CONSIDERATIONS IN THE BLOCK DIAGRAM NARRATIVE IS NONCONFORMING, SINCE THE IFB CALLED FOR NARRATIVES OF BOTH DIAGRAMS. OBVIOUS ERRORS ARE MADE IN THE DISCUSSION OR IN THE DIAGRAM, OR BOTH. FOR EXAMPLE, THE DISCUSSION OF THE BLOCK DIAGRAM INDICATES AN ATTENUATOR COMPOSED OF TWO (2) DIODES LABELED FD-200 IN FIGURE 3. YET IN FIGURE 3 ARE SHOWN THREE (3) DIODES LABELED FD-200 WITH NO EXPLANATION. FURTHERMORE, NARRATIVE OF THE SCHEMATIC DIAGRAM IS NOT INCLUDED AND COULD NOT EVEN BE ASSUMED BY THE EVALUATOR, SINCE MOST OF THE COMPONENTS ARE NOT IDENTIFIED. DETAILED DISCUSSION OF EXPANSION AND COMPRESSION TIME CONSTANTS, LEVEL CONTROLS, DISTORTION AND FREQUENCY RESPONSE IS MANDATORY FOR THIS PROPOSAL BECAUSE THE AMPLIFIER COVERED BY THIS INVITATION IS A SPECIAL TYPE AND NOT IN ORDINARY UFACTURE.'

8. "IN REGARD TO MECHANICAL DESIGN A VAGUE REFERENCE IS MADE TO THE AC/DC POWER SUPPLY, BUT NONE OF ITS FEATURES SUCH AS THE REQUIRED REMOVABILITY IS DISCUSSED. A POWER ALARM FAILURE LIGHT IS MENTIONED BUT THERE IS NO DISCUSSION OF THE REQUIRED ALARM PROVISIONS. REQUIRED REMOVABILITY OF PRINTED CIRCUIT AMPLIFIER CARDS IS NOT DISCUSSED HERE NOR IS THE REQUIRED FEATURE OF TYING INPUTS AND OUTPUTS OF REMOVABLE CARDS TOGETHER. THE REQUIREMENT OF STRAPPING TO REMOVE THE EXPANSION FEATURE IS NOT DISCUSSED. THE ADJACENT USE OF DISSIMILAR METALS SUCH AS ALUMINUM AND STEEL IN THE DOOR AND CASE RESPECTIVELY IS NOT IN KEEPING WITH MIL-E- 16400.'

YOUR COMMENT: "ON PAGE 2 OF OUR SUBMITTED DESCRIPTIVE LITERATURE, WE SHOW AN ARTIST'S CONCEPT OF THE MECHANICAL DESIGN IN DETAIL. THE REMOVABILITY OF THE AC/DC POWER SUPPLY IS A REQUIREMENT OF THE SPECIFICATION AND WILL BE MET BY CHESAPEAKE. WHILE WE DID NOT SPECIFICALLY DISCUSS THE REMOVABILITY FEATURE, IT IS CLEARLY A PART OF THE BID SPECIFICATIONS BEYOND THE NEED FOR DISCUSSION AND OUR BID WAS FULLY COMPLIANT WITH THAT SPECIFICATION. IN REGARD TO THE POWER ALARM REQUIREMENTS, OUR SCHEMATIC DIAGRAM FIGURE 4, CLEARLY SHOWS AND LABELS THE ALARM RELAY CONTACTS REQUIRED IN THE SPECIFICATION AND THE ALARM CIRCUIT, INCLUDING A LIGHT. INASMUCH AS THIS IS SO CLEARLY SET FORTH IN THE SCHEMATIC, WE FELT THERE WAS NO NEED TO BELABOR THE POINT. MIL E-16400 CLEARLY STATES THAT DISSIMILAR METALS MAY BE ASSEMBLED IN INTIMATE CONTACT WITH EACH OTHER PROVIDING AN INTERPOSING MATERIAL COMPATIBLE TO EACH SHALL BE USED. THEREFORE, THE STATEMENT THAT OUR PROPOSAL IS NOT IN KEEPING WITH MIL-E- 16400 IS NOT CORRECT.'

NAVY REPLY: "AS POINTED OUT BEFORE, A STATEMENT OF COMPLIANCE WITH THE SPECIFICATION DOES NOT RELIEVE THE BIDDER OF THE REQUIREMENT FOR SUBMISSION OF DETAILED DESCRIPTIVE LITERATURE. CHESAPEAKE DID SUBMIT A SCHEMATIC WHICH REFERRED TO SOME OF THE TECHNICAL REQUIREMENTS LISTED IN ,H" ABOVE. THEY DID NOT, HOWEVER, MENTION THESE REQUIREMENTS IN THEIR TECHNICAL DISSERTATION. DISCUSSION OF THE REQUIREMENTS IN THE FORM OF A TECHNICAL DISSERTATION WAS REQUIRED BY THE IFB AND IS NECESSARY FOR EVALUATION OF THE BID. FIGURE 1 IN CHESAPEAKE'S DESCRIPTION LITERATURE SHOWS THE ADJACENT USE OF ALUMINUM AND STEEL, BUT DOES NOT INDICATE ANY INTERPOSING MATERIAL IN ACCORDANCE WITH MIL E-16400, NOR IS ANY MENTIONED IN THEIR DISCUSSION.'

9. "THE REQUIREMENT FOR PROTECTIVE FINISHES IN ACCORD WITH MIL-E 16400 IS IGNORED.'

YOUR COMMENT: "THERE IS NO SPECIFIC INSTRUCTION IN MIL-E 16400ENTITLED "PROTECTIVE FINISHES.' THERE IS A PARAGRAPH ENTITLED "COATING AND TREATMENTS" WHICH FULLY DESCRIBES THE PROCESSES WHICH MUST BE USED. THE FACT THAT CHESAPEAKE SUBMITTED A BID SIGNED BY AN OFFICER OF THE CORPORATION IS EVIDENCE OF ITS INTENTION TO FULLY COMPLY WITH ANY AND ALL SPECIFICATION REQUIREMENTS, INCLUDING MIL-E 16400, AS HEREINBEFORE POINTED OUT.'

NAVY REPLY: "CONCERNING "FINISH TO BE USED ON METAL SURFACES" PROPER EVALUATION NECESSITATES DISCLOSURE OF MATERIALS ACTUALLY TO BE USED, IN ADDITION TO A DISCUSSION OF THE APPROPRIATE FINISH. THE BIDDER DID NOT COVER THE ABOVE IN RELATION TO THE REQUIREMENTS OF PARAGRAPH 3.6 OF MIL-E- 16400, AS REQUIRED. FOR EXAMPLE,"ARMOR COAT" IS NOT IDENTIFIED IN MIL-E- 16400 AND THE USE OF CHEMICAL TREATMENT OF ALUMINUM FOR GROUNDING PURPOSES VERSUS ANODIZING IS NOT DISCUSSED.'

YOU CONTEND THAT NONE OF THE DEFICIENCIES WAS "ESSENTIAL" SO AS TO JUSTIFY REJECTION OF YOUR BID UNDER ASPR 2-404.2 (A) FOR FAILURE TO CONFORM TO ESSENTIAL REQUIREMENTS OF THE INVITATION. ADDITIONALLY, YOU CONTEND THAT IN VIEW OF THE LARGE PRICE DIFFERENTIAL BETWEEN YOUR LOW BID AND THE NEXT HIGHER BID, THERE WAS AN OBLIGATION ON THE PART OF THE NAVY TO HAVE A PRE-AWARD EVALUATION GROUP MEET WITH YOU TO DISCUSS ANY ALLEGED DATA INADEQUACY IN DETAIL.

WITH SPECIFIC REFERENCE TO THE SUCCESSFUL BIDDER, YOU ASSERT THAT THE FACT THAT THE SAME BIDDER WAS AWARDED AN ADVERTISED CONTRACT IN JANUARY 1965 FOR THE SAME ITEM INDICATES THAT THE NAVY WANTS TO CONTINUE SUCH BIDDER AS THE SUPPLIER OF THE EQUIPMENT AND THAT YOUR PROPOSAL WAS DECLARED NONRESPONSIVE ON EITHER EXTREMELY MINOR OR NONEXISTENT GROUNDS. FINALLY, YOU STATE THAT YOU ARE WILLING TO HAVE THE IFB AND YOUR BID EVALUATED BY AN OUTSIDE ORGANIZATION AND YOU ARE CONFIDENT THAT SUCH EVALUATION WILL CORROBORATE YOUR POSITION THAT YOU WERE FULLY RESPONSIVE TO THE IFB AND SHOULD HAVE RECEIVED THE AWARD.

CONTRACTING AGENCIES ARE PRIMARILY RESPONSIBLE FOR THE DRAFTING OF SPECIFICATIONS TO MEET THE GOVERNMENT'S NEEDS. WHEN IT IS ESSENTIAL TO DETERMINE WHETHER ITEMS OFFERED TO THE GOVERNMENT MEET SUCH NEEDS, THERE MAY BE INCLUDED IN THE INVITATION FOR BIDS A DESCRIPTIVE DATA REQUIREMENT. FURTHER, A BID WHICH FAILS TO CONFORM TO A PROPERLY UTILIZED DESCRIPTIVE DATA REQUIREMENT IS DEFECTIVE AND THE BIDDER MAY NOT BE ALLOWED TO CURE THE DEFICIENCY AFTER BID OPENING SINCE SUCH ACTION WOULD BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS. 36 COMP. GEN. 415; 37 ID. 763; 40 ID. 132. MOREOVER, A BLANKET OFFER OF COMPLIANCE WITH SPECIFICATIONS BY A BIDDER WHO FAILS TO SUBMIT SUFFICIENT DESCRIPTIVE DATA REQUIRED FOR BID EVALUATION UNDER AN INVITATION FOR THE PROCUREMENT OF HIGHLY SPECIALIZED EQUIPMENT, WHICH ADVISES BIDDERS THAT FAILURE TO FURNISH SUCH DATA WILL CAUSE BID REJECTION, DOES NOT OVERCOME OR RENDER NUGATORY THE DATA REQUIREMENT OR THE EXTENT TO WHICH SUCH DATA WILL BE CONSIDERED IN THE EVALUATION OF BIDS. 36 COMP. GEN. 415, 417. WE SEE NO BASIS FOR DISAGREEING WITH THE NAVY'S DETERMINATION THAT THE REQUESTED DATA WAS NECESSARY IN EACH OF THE AREAS SPECIFIED BY THE INVITATION FOR BIDS.

IN REGARD TO THE MATTER OF WHETHER NAVY SHOULD HAVE HELD A PREAWARD DISCUSSION WITH YOU ON THE DEFICIENCIES IN YOUR BID DATA, YOUR ATTENTION IS DIRECTED TO THE FACT THAT SINCE THIS WAS A FORMALLY ADVERTISED PROCUREMENT THE NAVY COULD NOT HAVE ACCEPTED ANY ADDITIONAL DATA FROM YOU AFTER BID OPENING. SUCH ACTION WOULD HAVE BEEN CLEARLY PREJUDICIAL TO THE RIGHTS OF THE OTHER BIDDERS. NOR DOES THE DIFFERENCE IN PRICE BETWEEN YOUR BID AND THE NEXT LOW RESPONSIVE BID JUSTIFY ANY EXCEPTION IN THIS CASE, SINCE STRICT ADHERENCE TO THE ESTABLISHED COMPETITIVE BIDDING PROCEDURES IS INFINITELY MORE IN THE PUBLIC INTEREST THAN ANY PECUNIARY ADVANTAGE TO BE OBTAINED IN A PARTICULAR CASE BY PERMITTING PRACTICES THAT DO VIOLENCE TO THE SPIRIT AND PURPOSE OF THE LAW. 37 COMP. GEN. 763, 767; 30 ID. 179; 17 ID. 554. ACCORDINGLY, IT WOULD NOT APPEAR THAT ANY DISCUSSION YOU MIGHT HAVE HAD WITH THE NAVY COULD HAVE AFFECTED THE RESPONSIVENESS OF YOUR BID INSOFAR AS THE DATA DEFICIENCY WAS CONCERNED.

AS TO THE EFFECT OF THE PRIOR CONTRACT AWARD TO THE SUCCESSFUL BIDDER FOR THE SAME ITEMS, YOU DO NOT ALLEGE ANY IMPROPRIETY IN THE PRIOR PROCUREMENT. THERE IS NOTHING IN THE RECORD BEFORE US TO SUBSTANTIATE YOUR ASSERTION THAT THE PRIOR PROCUREMENT EVIDENCES A DESIRE BY THE NAVY TO CONTINUE THE SUCCESSFUL BIDDER ON THE INSTANT PROCUREMENT AS THE SUPPLIER OF THE EQUIPMENT. IN VIEW THEREOF, IT DOES NOT APPEAR THAT THE PRIOR AWARD HAS ANY PARTICULAR SIGNIFICANCE OTHER THAN TO INDICATE THAT THE BIDDER PREVIOUSLY WAS FOUND RESPONSIVE TO THE NAVY'S NEEDS.

AS TO THE EMPLOYMENT OF AN OUTSIDE ORGANIZATION TO EVALUATE YOUR BID, IT SHOULD BE NOTED THAT THE FUNCTION OF DETERMINING WHETHER ITEMS OFFERED TO THE GOVERNMENT MEET ITS REQUIREMENTS AS SET FORTH IN THE SPECIFICATIONS ISSUED BY THE CONTRACTING AGENCIES IS, LIKE THE FUNCTION OF DRAFTING THE SPECIFICATIONS, THE PRIMARY RESPONSIBILITY OF THE CONTRACTING AGENCIES. 17 COMP. GEN. 554. MOREOVER, WE ARE AWARE OF NO AUTHORITY THAT WOULD PERMIT OUR OFFICE TO SUBSTITUTE THE JUDGMENT OR OPINION OF AN OUTSIDE ORGANIZATION FOR THAT OF THE CONTRACTING AGENCY IN SUCH MATTERS.

IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT THE REJECTION OF YOUR BID BECAUSE OF YOUR FAILURE TO FULLY COMPLY WITH THE DATA PROVISION AND THE AWARD TO THE NEXT LOW RESPONSIVE BIDDER WAS IN ACCORD WITH THE APPLICABLE PROCUREMENT STATUTE AND REGULATIONS, AND WITH THE TERMS OF THE IFB. ACCORDINGLY, OUR DECISION OF AUGUST 25 IS AFFIRMED.