B-152363, OCT. 28, 1963

B-152363, OCT. 28, 1963

TO WESTLAB, INC.:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 22, 1963, WITH ENCLOSURES, CONCERNING YOUR PROTEST AGAINST THE ACTION OF THE U.S. NAVY PURCHASING OFFICE, LOS ANGELES, CALIFORNIA, IN REJECTING YOUR LOW OFFER UNDER REQUEST FOR PROPOSALS 123-31607.

THE REFERRED-TO REQUEST FOR PROPOSALS REQUESTED BIDS FOR THE PROCUREMENT OF SERVICES AND MATERIALS NECESSARY TO FURNISH A COMPLETE PUBLIC ADDRESS SYSTEM FOR THE LONG BEACH NAVAL SHIPYARD, LONG BEACH, CALIFORNIA, IN ACCORDANCE WITH THE GOVERNMENT'S SPECIFICATIONS.

THE RECORD SHOWS THAT THE TECHNICAL PROPOSALS RECEIVED FROM SIX DIFFERENT FIRMS THAT RESPONDED TO THE REQUEST FOR PROPOSALS WERE REFERRED TO GOVERNMENT ENGINEERS FOR TECHNICAL EVALUATION. UPON REVIEW OF THE TECHNICAL PROPOSAL SUBMITTED BY YOUR FIRM, IT WAS DETERMINED THAT YOUR PROPOSAL SHOULD BE REJECTED BECAUSE IT DID NOT CONTAIN SUFFICIENT INFORMATION TO DETERMINE IF THE EQUIPMENT OFFERED BY YOUR FIRM MEETS THE REQUIREMENTS OF THE SPECIFICATIONS. THE EVALUATION REPORT INDICATES THAT YOUR FIRM DID NOT SUBMIT DATA ON ITEMS 1.D (3), (6), (7), (8), (11), (15) AND (16). IT IS REPORTED THAT IN VIEW OF THE POSSIBLE SAVINGS OFFERED BY YOUR FIRM, THE NAVY PURCHASING OFFICE REQUESTED ADDITIONAL TECHNICAL INFORMATION FROM THE PRESIDENT OF YOUR FIRM. UPON RECEIPT OF THE REQUESTED INFORMATION YOUR PROPOSAL WAS AGAIN EVALUATED BY THE LONG BEACH NAVAL SHIPYARD AND IT WAS DETERMINED THAT YOUR PROPOSAL WAS STILL UNACCEPTABLE. THE RE-EVALUATION OF YOUR PROPOSAL ESTABLISHED THE FACT THAT WITH RESPECT TO ITEMS 1.D (2), (4), (9), (13), (14) AND (17), YOUR PROPOSAL FAILED TO MEET THE SPECIFICATION REQUIREMENTS OF THE REQUEST FOR PROPOSALS. ON MAY 27, 1963, A CONTRACT FOR THE PUBLIC ADDRESS SYSTEM WAS AWARDED TO HANNON ENGINEERING, INC. IT IS REPORTED THAT DELIVERY OF THE COMPLETE SYSTEM WAS ACCOMPLISHED AND ACCEPTANCE MADE ON SEPTEMBER 3, 1963.

IN HIS LETTER OF JULY 25, 1963, MR. PERELLE, PRESIDENT OF YOUR FIRM, ADMITS IN REGARD TO THE EQUIPMENT OFFERED BY YOUR FIRM (A) THAT THE PREAMPLIFIER (ITEM 1.D (13) ( IS NOT SELF-POWERED AS REQUIRED BY THE CONTRACT SPECIFICATIONS; (B) THAT THE HIGH FREQUENCY RESPONSE OF THE LOCAL ZONE AMPLIFIER (ITEM 1.D (14) ( OFFERED BY YOUR FIRM IS ONLY 20 PERCENT OF THAT SPECIFIED AND (C) THAT THE OFFERED "CODE A" LOUDSPEAKER (ITEM 1.D (17) ( HAS A DIFFERENT IMPEDANCE THAN CALLED FOR BY THE SPECIFICATIONS AND 17 PERCENT LOWER FREQUENCY RESPONSES THAN SPECIFIED. NEVERTHELESS, MR. PERELLE CONTENDS, IN ESSENCE, THAT YOUR FIRM'S DEVIATING EQUIPMENT IS MORE EFFICIENT THAN THAT CALLED FOR BY THE SPECIFICATIONS AND THAT THE SPECIFICATIONS REQUIRE HIGHER LEVEL PERFORMANCE THAN IS NECESSARY OR USEFUL.

IT IS NOT, OF COURSE, WITHIN THE PROVINCE OF OUR OFFICE TO DRAFT SPECIFICATIONS FOR THE CONTRACTUAL NEEDS OF ADMINISTRATIVE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT. 38 COMP. GEN. 71, 75. THUS, WHERE IT IS SHOWN THAT AN ARTICLE OFFERED BY A BIDDER FAILS TO MEET THE SPECIFICATIONS IN SOME SPECIFIC RESPECT, A DETERMINATION THAT SUCH BID SHOULD BE REJECTED WOULD NOT BE QUESTIONED BY OUR OFFICE UNLESS THE FAILURE TO MEET SPECIFICATIONS RELATES TO A TRIVIAL OR IMMATERIAL REQUIREMENT. HERE, HOWEVER, THE ADMINISTRATIVE AGENCY WHICH NEEDED THE EQUIPMENT REPORTS THAT THE REQUIREMENTS AS TO THE PREAMPLIFIER AND LOUDSPEAKER ARE ESSENTIAL IN ORDER TO MEET ITS NEEDS. THIS IS A MATTER WHICH IS FOR DETERMINATION BY EXPERTS QUALIFIED IN THIS PARTICULAR FIELD. WE HAVE HELD THAT WHERE IT APPEARS THAT AN ADMINISTRATIVE AGENCY HAS MADE A BONA FIDE DETERMINATION OF ITS NEED FOR EQUIPMENT CONFORMING TO CERTAIN SPECIFICATIONS WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF SUCH AGENCY. THE FACT THAT IT MAY DEVELOP IN THESE CIRCUMSTANCES THAT SUCH EQUIPMENT IS MANUFACTURED BY ONLY ONE OR A FEW FIRMS WOULD NOT WARRANT OUR OFFICE IN QUESTIONING THE PROCUREMENT. ALSO WE DO NOT PERCEIVE ANY BASIS UPON WHICH WE COULD OBJECT TO THE AWARD TO A HIGHER BIDDER SINCE THE AGENCIES OF THE GOVERNMENT ARE NOT REQUIRED TO MAKE PURCHASES OF EQUIPMENT IN FULFILLING THEIR REQUIREMENTS SIMPLY BECAUSE A LOWER PRICE CAN BE OBTAINED IN THAT WAY. CLEARLY, IN THE ORDERLY CONDUCT OF ITS BUSINESS THE GOVERNMENT MAY NOT BE PLACED IN THE POSITION OF HAVING TO SHARE SUCH DISCRETIONARY AUTHORITY WITH ONE OF ITS POTENTIAL SUPPLIERS.

IN VIEW OF THE DETERMINATION MADE BY THE USING AGENCY IN THIS CASE, WE FIND NO PROPER BASIS FOR CONCLUDING THAT THE AWARD TO HANNON ENGINEERING, INC., WAS IMPROPER.