B-148945, SEP. 11, 1962

B-148945, SEP. 11, 1962

TO BARRY CONTROLS, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTERS OF MAY 18 AND JUNE 21, 1962, PROTESTING THE AWARD OF A CONTRACT TO INDUSTRIAL ACOUSTICS COMPANY, INC., UNDER REQUEST FOR QUOTATIONS NO. 620-445 ISSUED BY THE U.S. ARMY ENGINEER RESEARCH AND DEVELOPMENT LABORATORIES (ERDL), FORT BELVOIR, VIRGINIA.

QUOTATIONS WERE REQUESTED FOR FURNISHING ALL RESEARCH, ENGINEERING, LABOR, TOOLS, EQUIPMENT, MATERIALS, SUPPLIES, SERVICES AND FACILITIES NECESSARY TO DESIGN, FABRICATE, TEST AND DELIVER A PROTOTYPE SOUND SUPPRESSION SYSTEM FOR A RANGE OF MILITARY DESIGN AIR-COOLED, GASOLINE ENGINE-DRIVEN, ELECTRIC GENERATOR SETS, 0.15 KW.--- 10 KW. PROSPECTIVE BIDDERS WERE ADVISED THAT SINCE THE PROJECT WAS OF A RESEARCH, EXPERIMENTAL AND DEVELOPMENTAL NATURE, IT WAS CONSIDERED THAT ANY CONTRACT AWARDED WOULD BE OF A COST TYPE AND THAT QUOTATIONS WERE BEING SOLICITED ON THAT BASIS.

NINE FIRMS WERE SOLICITED AND FOUR PROPOSALS WERE RECEIVED. AFTER EVALUATION OF THE PROPOSALS A COST-TYPE CONTRACT WAS NEGOTIATED WITH INDUSTRIAL ACOUSTICS COMPANY IN THE AMOUNT OF $56,456. YOU PROTEST THIS AWARD ON THE GROUND THAT: (1) THE CONTRACTING PROCEDURES FOLLOWED DID NOT CONFORM TO PARAGRAPHS 3-107.4 THROUGH 3-107.8, AND SPECIFICALLY SUBPARAGRAPHS .4 AND .6, OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR); (2) THE SUCCESSFUL BIDDER IS TECHNICALLY INCOMPETENT; (3) THE SUCCESSFUL BIDDER SUBMITTED A NONRESPONSIVE PROPOSAL BASED ON THE TECHNICAL PHASE OF THE REQUEST FOR PROPOSALS; AND (4) THE PRICE SUBMITTED BY YOUR COMPANY WAS LOWER THAN THAT OF THE SUCCESSFUL BIDDER.

THE ABOVE PROVISIONS OF ASPR REQUIRE THAT PROPOSALS BE SOLICITED ONLY FROM SOURCES WHICH HAVE BEEN TECHNICALLY EVALUATED AND FOUND QUALIFIED TO PERFORM RESEARCH AND DEVELOPMENT IN THE SPECIFIC FIELD OF SCIENCE OR TECHNOLOGY INVOLVED, AND THAT AWARD SHALL BE MADE TO THOSE ORGANIZATIONS HAVING THE HIGHEST COMPETENCE, WITH PARTICULAR REGARD FOR THE CONTRACTOR'S UNDERSTANDING OF THE SCOPE OF THE WORK; THE AVAILABILITY AND COMPETENCE OF EXPERIENCED ENGINEERING, SCIENTIFIC, OR OTHER TECHNICAL PERSONNEL; AVAILABILITY, FROM ANY SOURCE, OF NECESSARY RESEARCH, TEST AND PRODUCTION FACILITIES; AND EXPERIENCE OR PERTINENT NOVEL IDEAS IN THE SPECIFIC BRANCH OF SCIENCE OR TECHNOLOGY INVOLVED.

THE ARMY REPORTS THAT THE SUBJECT PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY AND THAT, AS A CONSEQUENCE OF THIS ADVERTISEMENT AND THE RECOMMENDATION OF SOURCES FROM TECHNICAL PERSONNEL, NINE PROSPECTIVE CONTRACTORS WERE SOLICITED FOR PROPOSALS. IT IS REPORTED THAT THE TECHNICAL PERSONNEL CONCERNED WERE AWARE OF FIRMS HAVING A CAPABILITY AS REQUIRED, THROUGH CLOSE CONTACT WITH OTHER RELATED WORK IN THE BRANCH, CONTACT WITH INDUSTRIAL MANUFACTURERS OF ENGINE GENERATORS, AND THROUGH ATTENDANCE OF A NOISE-REDUCTION SYMPOSIUM AT THE MASSACHUSETTS INSTITUTE OF TECHNOLOGY. THE CAPABILITIES OF ALL ESTABLISHMENTS LISTED WITH YOUR LETTER OF JUNE 21, 1962, WERE WELL KNOWN TO THE TECHNICAL PERSONNEL RESPONSIBLE FOR THE PROCUREMENT ACTION AND REQUESTS FOR PROPOSALS WERE LIMITED TO NINE SUPPLIERS WHO WERE CONSIDERED TO BE WELL QUALIFIED AND REPRESENTATIVE OF THE FIELD, INCLUDING TWO OF THOSE LISTED.

AS TO THE TECHNICAL COMPETENCE OF INDUSTRIAL ACOUSTICS, IT IS REPORTED THAT TECHNICAL PERSONNEL OF ERDL HELD EXTENSIVE DISCUSSIONS WITH TECHNICAL PROJECT DIRECTORS OF OTHER GOVERNMENT AGENCIES HAVING SIMILAR SUCCESSFUL CONTRACTS WITH INDUSTRIAL ACOUSTICS AND AS A RESULT OF THESE DISCUSSIONS AND THE EVALUATION OF INDUSTRIAL'S PROPOSAL, INCLUDING SUPPORTING BROCHURES AND PERSONNEL RESUMES, IT WAS DETERMINED THAT THE COMPANY WAS FULLY COMPETENT BOTH AS TO PERSONNEL AND FACILITIES. REVIEW OF THE PERSONNEL RESUMES INDICATES INSTANCES OF ADVANCED NOISE-SUPPRESSION WORK OF BOTH THEORETICAL AND PRACTICAL IMPORTANCE AND DR. U. INGARD, CONSULTANT TO INDUSTRIAL ACOUSTICS COMPANY, IS RECOGNIZED AS HAVING OUTSTANDING THEORETICAL UNDERSTANDING OF THE PROBLEMS INHERENT IN THE CONTEMPLATED CONTRACT.

THE PROPOSAL SUBMITTED BY INDUSTRIAL ACOUSTICS COMPANY WAS CONSIDERED FULLY RESPONSIVE IN THAT IT PRESENTED A SATISFACTORY METHOD OF PERFORMANCE OF THE DESIGN, DEVELOPMENT, FABRICATION AND TESTING AS REQUIRED BY THE REQUEST FOR QUOTATIONS. IT SHOULD BE NOTED THAT THE SPECIFICATIONS DID NOT REQUIRE NOR DID THE CONTRACT CONTEMPLATE MATERIAL RESEARCH. THE PERFORMANCE REQUIRED WAS BASED UPON USING EXISTING MATERIALS AND ENGINEERING TECHNOLOGY TO THE BEST POSSIBLE ADVANTAGE. IT IS REPORTED THAT THE WORK ACCOMPLISHED BY INDUSTRIAL ACOUSTICS TO DATE HAS BEEN COMPLETELY SATISFACTORY.

COMPARISON OF PRICES DISCLOSES THAT YOUR PROPOSAL WAS NOT LOWER THAN THAT OF INDUSTRIAL ACOUSTICS. THE REQUEST FOR QUOTATIONS LISTS CERTAIN TESTS WHICH MUST BE MADE BY THE CONTRACTOR. HOWEVER, YOUR PROPOSAL STATES THAT YOU "DO NOT HAVE THE FACILITY TO PERFORM THE ALTITUDE, BLOWING SNOW AND WATER, WIND, AND RAIN TESTS, AND, THEREFORE, ARE IN NO POSITION TO ACCEPT THIS REQUIREMENT AT THIS TIME.' YOUR FIXED-PRICE QUOTATION OF $55,706 DID NOT INCLUDED THE COST OF THIS TESTING, WHICH HAS BEEN DETERMINED TO BE BETWEEN THREE AND FOUR THOUSAND DOLLARS, AND THE ADDITION OF THIS COST TO YOUR QUOTATION WOULD EXCEED THE CONTRACT PRICE OF $56,456.

IN FURTHER JUSTIFICATION OF THE REJECTION OF YOUR COMPANY'S PROPOSAL, THE ARMY REPORTS AS FOLLOWS:

"THE INITIAL PART OF THE BERRY CONTROLS INC., TECHNICAL PROPOSAL WAS CONCERNED WITH THE VIBRATION ATTENUATION OF THE ENGINE-GENERATOR SET. ALL STATEMENTS INCLUDED IN THIS SEGMENT INDICATED THAT THE BIDDER PROPOSED TO DEVOTE CONSIDERABLE EFFORT IN THE AREA OF VIBRATION ISOLATION (THE PRINCIPLE PRODUCT OF THIS COMPANY IS VIBRATION ISOLATION MATERIAL) AND IMPLIED THAT THE PRESENT VIBRATION ISOLATION SYSTEM (A COMPETITIVE PRODUCT) IS CONTRIBUTING TO THE OVERALL NOISE LEVEL AND TO THE SHARP PEAKS FOUND IN THE NOISE LEVEL SPECTRUM. THE ANALYSIS OF THE COMPETITORS PRODUCT PRESENTED IN THE BARRY CONTROLS INC., PROPOSAL INDICATES A COMPLETE MISUNDERSTANDING OF THE WORKING PRINCIPLE OF THIS SYSTEM, ITS ADVANTAGES, AND DISADVANTAGES. THE PURCHASE REQUEST DID NOT REQUIRE ANY CHANGES TO BE MADE IN THE ISOLATION SYSTEM OF THE BASIC ENGINE-GENERATOR CONFIGURATION. FOR VARIOUS TECHNICAL AND LEGAL REASONS, A CHANGE TO THIS PRESENT SYSTEM WOULD BE INAPPROPRIATE. THE PROBLEM STATEMENT PRESENTED IN THE PURCHASE DESCRIPTION WAS FOR THE SOUND SUPPRESSION OF THE PRESENT EQUIPMENT, NOT TO MODIFY THIS SYSTEM IN ANY MAJOR MANNER. ANY MAJOR MODIFICATION AS PROPOSED BY BARRY CONTROLS INC., WOULD RESULT IN AN INCREASED COST TO THE GOVERNMENT BECAUSE OF THE REPEATED ANALYTICAL, DESIGN, TEST, AND DRAWING WORK WHICH WOULD BE NECESSARY.

"THE ALTERNATE SYSTEM AS PROPOSED BY BARRY CONTROLS INC., WAS NOT CONSIDERED AS A SUITABLE ALTERNATE SYSTEM WITHIN THE INTENT OF THE PURCHASE DESCRIPTION. THIS ALTERNATE SYSTEM IS VERY CLOSELY RELATED TO THE STANDARD SHEET-METAL INCLOSURE, ALSO SPECIFIED, AND WHICH HAS BEEN FURNISHED TO THE GOVERNMENT ON PREVIOUS CONTRACTS. THIS UNSUITABILITY OF THE BARRY CONTROLS INC., ALTERNATE SYSTEM IS ESPECIALLY TRUE WHEN COMPARED WITH THE ALTERNATE SYSTEM PROPOSED BY THE SUCCESSFUL BIDDER.

"THE CLOSE EXAMINATION OF THE TECHNICAL PROPOSAL OFFERED BY BARRY CONTROLS INC., FOR THE PERFORMANCE OF THE CONTEMPLATED CONTRACT SHOWS THAT THEIR TECHNICAL APPROACH WAS CENTERED AROUND INVESTIGATION AND REDESIGN OF STRUCTURAL PARTS OF THE ENGINE-GENERATOR SETS IN AN EFFORT TO REDUCE THE CAUSE OF NOISE AND VIBRATION. SUCH AN APPROACH WOULD NECESSARILY REQUIRE EXPENSIVE REDESIGN, RETOOLING, AND RE-WRITING OF GOVERNMENT SPECIFICATIONS. THIS WAS NOT THE PRIMARY INTENT OF THE GOVERNMENT IN INITIATING THIS PROCUREMENT. THE OBJECTIVE OF THIS PROCUREMENT WAS THE DESIGN, TESTING, AND FABRICATION OF A SOUND SUPPRESSION SYSTEM THAT COULD BE APPLIED TO A FAMILY OF GENERATOR SETS AT A MINIMUM OF CHANGE, IF ANY, TO THE GENERATOR SETS. THE SYSTEM WAS TO BE USED ON EXISTING EQUIPMENT AND EQUIPMENT BEING PURCHASED UNDER EXISTING SPECIFICATIONS. THE PURCHASE DESCRIPTION SPECIFICALLY LIMITED THE CONTRACTOR TO MINOR CHANGES WHICH REQUIRED CONTRACTING OFFICER'S APPROVAL BY PARAGRAPH 3.8.1 OF EXHIBIT B. TO HAVE PERFORMED THE CONTRACT IN ACCORDANCE WITH BARRY CONTROLS INC., APPROACH, THIS LIMITATION COULD NOT HAVE BEEN COMPLIED WITH. WHILE THE PROPOSAL OF BARRY CONTROLS INC., WAS TECHNICALLY FEASIBLE, IT WAS NOT THE BEST NOR ONLY APPROACH TO GAIN THE OBJECTIVE OF THE PROCUREMENT, THEREFORE, THE PROPOSAL OF BARRY CONTROLS INC., WAS REJECTED.'

THE SELECTION OF PROSPECTIVE CONTRACTORS AND THE DETERMINATION OF THEIR QUALIFICATIONS IS PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE OFFICERS CONCERNED AND IN THE ABSENCE OF CONVINCING EVIDENCE OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR THE ACTION TAKEN, WE ARE NOT REQUIRED TO OBJECT TO SAME. ON THE PRESENT RECORD WE FIND NO BASIS FOR DISTURBING THE AWARD AS MADE AND YOUR PROTEST MUST THEREFORE BE DENIED.