B-153343, MAR. 12, 1964

B-153343: Mar 12, 1964

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THE TECHNICAL PERSONNEL OF THE PROCURING ACTIVITY DETERMINED THE DESCRIPTIVE LITERATURE SUBMITTED BY YOU DID NOT SHOW THAT YOUR PROPOSAL WAS RESPONSIVE TO THE TECHNICAL PERFORMANCE REQUIREMENTS SET FORTH IN THE INVITATION FOR BIDS. THE QUESTION WHETHER THE TECHNICAL PERFORMANCE REQUIREMENTS ARE NECESSARY TO MEET THE MINIMUM NEEDS OF THE PROCURING ACTIVITY. ARE NOT CONSIDERED TO INVOLVE MATTERS WHICH ARE PRIMARILY WITHIN THE JURISDICTION OF THIS OFFICE. WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT. WHETHER A PARTICULAR BID IS RESPONSIVE TO THE TECHNICAL DETAILS OF THE SPECIFICATIONS IS NOT A MATTER. YOUR PROTEST IS BASED UPON SUCH AN EVALUATION. WE SET FORTH THE FOLLOWING RULE WHICH WE CONSIDER TO BE CONTROLLING IN THE INSTANT MATTER: " "IT IS IN THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS.

B-153343, MAR. 12, 1964

TO GULF AEROSPACE CORPORATION:

IN YOUR TELEGRAM OF JANUARY 22, 1964, AND SUPPORTING MATERIAL MAILED JANUARY 28, 1964, YOU PROTEST THE AWARD TO ANY COMPANY OTHER THAN YOURS OF A CONTRACT FOR A FREQUENCY MULTIPLEX DATA SYSTEM AND SET OF SUBCARRIER TUNING UNITS UNDER INVITATION FOR BIDS NO. L-4005 ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, LANGLEY RESEARCH CENTER, HAMPTON, VIRGINIA.

THE RECORD ESTABLISHES THAT YOU SUBMITTED THE LOWEST OF THREE BIDS RECEIVED. HOWEVER, AFTER EVALUATING THE DATA YOU HAD SUBMITTED WITH YOUR BID, THE TECHNICAL PERSONNEL OF THE PROCURING ACTIVITY DETERMINED THE DESCRIPTIVE LITERATURE SUBMITTED BY YOU DID NOT SHOW THAT YOUR PROPOSAL WAS RESPONSIVE TO THE TECHNICAL PERFORMANCE REQUIREMENTS SET FORTH IN THE INVITATION FOR BIDS.

THE QUESTION WHETHER THE TECHNICAL PERFORMANCE REQUIREMENTS ARE NECESSARY TO MEET THE MINIMUM NEEDS OF THE PROCURING ACTIVITY, AND THE QUESTION AS TO THE MATERIALITY OF THE DIFFERENCES BETWEEN YOUR PRODUCTS AND THE ONES CALLED FOR IN THE SPECIFICATIONS, ARE NOT CONSIDERED TO INVOLVE MATTERS WHICH ARE PRIMARILY WITHIN THE JURISDICTION OF THIS OFFICE. IN OUR DECISION, B-139830, DATED AUGUST 19, 1959, WE MADE THE FOLLOWING OBSERVATION:

"THIS OFFICE HAS NEITHER AN ENGINEERING STAFF NOR A TESTING LABORATORY TO EVALUATE THE TECHNICAL ASPECTS OF SPECIFICATIONS. MOREOVER, IN DISPUTES OF FACT BETWEEN A PROTESTANT AND A GOVERNMENT AGENCY, WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT. WHETHER A PARTICULAR BID IS RESPONSIVE TO THE TECHNICAL DETAILS OF THE SPECIFICATIONS IS NOT A MATTER, ORDINARILY, FOR OUR DETERMINATION. * *

IN THIS REGARD, WE HELD IN OUR DECISION, B-143389, DATED AUGUST 26, 1960, AS FOLLOWS:

"THE QUESTION AS TO THE ACTION, IF ANY, WHICH OUR OFFICE SHOULD TAKE IN CASES INVOLVING THE EVALUATION OF TECHNICAL REQUIREMENTS OF SPECIFICATIONS, ETC., HAS BEEN THE SUBJECT OF A NUMBER OF DECISIONS BY OUR OFFICE. YOUR PROTEST IS BASED UPON SUCH AN EVALUATION. OF NECESSITY, OUR OFFICE HAS ESTABLISHED A RULE GOVERNING SUCH SITUATIONS. IN A DECISION DATED JANUARY 8, 1938, TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, PUBLISHED AT 17 COMP. GEN. 554, 557, WE SET FORTH THE FOLLOWING RULE WHICH WE CONSIDER TO BE CONTROLLING IN THE INSTANT MATTER:

" "IT IS IN THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS, AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THOSE SPECIFICATIONS. * * *" "

THE "DESCRIPTIVE LITERATURE" PROVISIONS OF PAGE 7 OF THE INVITATION SPECIFICALLY STATED THAT ,FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID.' IN VIEW OF THIS PROVISION AND THE ADMINISTRATIVE CONCLUSIONS, AND FOR THE REASONS SET OUT IN THE ABOVE-CITED DECISIONS, WE FIND NO BASIS FOR OBJECTING TO THE ACTION TAKEN.