B-153451, MAY 13, 1964

B-153451: May 13, 1964

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TO SCAICO DIVISION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 25. THE AIR FORCE ADVISES: "THIS PROCUREMENT WAS INTENDED TO HAVE BEEN SOLE SOURCE WITH FENWAL INC. THE PROCUREMENT WHICH WAS TO HAVE BEEN SYNOPSIZED FOR SUBCONTRACTING PURPOSES ONLY. A PROPER SOLE SOURCE NOTICE WAS PUBLISHED FOR THE BENEFIT OF POTENTIAL SUBCONTRACTORS. IN THE INTERIM A BID WAS RECEIVED FROM SCAICO WHICH WAS CONSIDERABLY LOWER THAN THE FENWAL BID. IN CONCLUDING THAT THE PRODUCT OFFERED WAS NOT A SUITABLE SUBSTITUTE FOR THE FENWAL FIRE DETECTOR. THE REPORT STATES: "SCAICO PART NUMBER 620508 IS 3/16 INCH LONGER. SPACING AND BASE ARE DIFFERENT. ATTACHMENT PROVISIONS TO AIRCRAFT WIRING ARE NOT SUITABLE.

B-153451, MAY 13, 1964

TO SCAICO DIVISION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 25, 1964, AND OTHER CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO FENWAL INCORPORATED UNDER REQUEST FOR PROPOSAL NO. 64-31143, ISSUED BY THE DEPARTMENT OF THE AIR FORCE, MCCLELLAN AIR FORCE BASE, CALIFORNIA.

IN ANSWER TO OUR REQUEST FOR A COMPLETE REPORT ON THE MATTER, THE AIR FORCE ADVISES:

"THIS PROCUREMENT WAS INTENDED TO HAVE BEEN SOLE SOURCE WITH FENWAL INC. UNDER THE AUTHORITY OF 10 U.S.C. 2304 (A) (10), BUT DUE TO AN ERROR, THE PROCUREMENT WHICH WAS TO HAVE BEEN SYNOPSIZED FOR SUBCONTRACTING PURPOSES ONLY, RECEIVED A COMPLETE SYNOPSIS. UPON DISCOVERY OF THE ERROR, A PROPER SOLE SOURCE NOTICE WAS PUBLISHED FOR THE BENEFIT OF POTENTIAL SUBCONTRACTORS. IN THE INTERIM A BID WAS RECEIVED FROM SCAICO WHICH WAS CONSIDERABLY LOWER THAN THE FENWAL BID. THE BUYER INVESTIGATED THE SCAICO BID TO DETERMINE IF THE SCAICO ITEM WOULD MEET THE REQUIREMENTS OF THE RFP.'

IN CONCLUDING THAT THE PRODUCT OFFERED WAS NOT A SUITABLE SUBSTITUTE FOR THE FENWAL FIRE DETECTOR, THE REPORT STATES:

"SCAICO PART NUMBER 620508 IS 3/16 INCH LONGER; MOUNTING HOLE DIAMETERS, SPACING AND BASE ARE DIFFERENT; AND ATTACHMENT PROVISIONS TO AIRCRAFT WIRING ARE NOT SUITABLE. AIRCRAFT MOUNTING PROVISIONS AND WIRING WOULD REQUIRE REVISION AT NINE LOCATIONS PER ENGINE ON 435 ENGINES. ADDITION, PARTS ALREADY MANUFACTURED AND PROCURED FOR USE WITH THE FENWAL DETECTOR WOULD NOT BE USABLE THUS RESULTING IN CONSIDERABLE ADDITIONAL EXPENSE TO THE GOVERNMENT. THE SCAICO DETECTOR IS NOT QUALIFIED TO SPECIFICATION CAA TSO-C11A. USE OF THIS PART WOULD REQUIRE THAT THE MANUFACTURER QUALIFY ITS PRODUCT IN ACCORDANCE WITH CAA TSO-C11A WHICH REQUIRES A SERVICE TEST OF APPROXIMATELY THREE MONTHS.'

THE QUESTION OF WHETHER SPECIFIED TECHNICAL PERFORMANCE REQUIREMENTS ARE ACTUALLY NECESSARY TO MEET THE MINIMUM NEEDS OF THE PROCURING ACTIVITY, AS WELL AS QUESTIONS PERTAINING TO THE MATERIALITY OF VARIOUS DIFFERENCES BETWEEN A PROTESTANT'S PRODUCT AND THOSE 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 OBSERVATIONS:

"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. * *

THEREFORE, SINCE YOUR PRODUCT WAS FOUND TECHNICALLY UNACCEPTABLE, WE FIND NO BASIS FOR OBJECTING TO THE ACTION TAKEN. INDEED, THERE IS NO REQUIREMENT THAT THE GOVERNMENT PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE PROCUREMENT ACTIVITY, REASONABLY MEET THE ACTIVITY'S NEEDS. B-153169, MARCH 20, 1964.

WITH RESPECT TO YOUR ALLEGATIONS THAT LIEUTENANT BRITTENHAM AUTHORIZED THE SUBMISSION OF A PROPOSAL ON AN "OR EQUAL" BASIS WITHOUT FORMALLY CHANGING THE SUBJECT RFP, THE AIR FORCE REPORTS THAT THEIR INVESTIGATION HAS LED THEM TO CONCLUDE THAT A MISUNDERSTANDING MAY HAVE RESULTED SINCE LIEUTENANT BRITTENHAM HAS UNEQUIVOCALLY STATED THAT AT NO TIME DID HE EVER AUTHORIZE YOUR FIRM TO SUBMIT A PROPOSAL ON AN "OR EQUAL" BASIS. SINCE WE HAVE NO REASON TO BELIEVE OTHERWISE, WE ARE INCLINED TO AGREE WITH THE AIR FORCE'S CONCLUSION IN THIS REGARD. ACCORDINGLY, YOUR PROTEST IS HEREBY DENIED.