B-154432, JUL. 21, 1964

B-154432: Jul 21, 1964

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INC.: REFERENCE IS MADE TO YOUR LETTER OF MAY 20. YOUR PROTEST WAS REFERRED TO THIS OFFICE BY HEADQUARTERS DEFENSE SUPPLY AGENCY. THE REQUEST FOR PROPOSAL WAS ISSUED ON FEBRUARY 28. ATTACHED TO AND MADE A PART OF THE REQUEST FOR PROPOSAL WAS DESC FORM P-71-111 ENTITLED "REPLACEMENT SPARES" WHICH PROVIDES THAT THE PARTS OFFERED BY THOSE SUBMITTING PROPOSALS MUST BE IDENTICAL TO OR FUNCTIONALLY. THE NOMENCLATURE FOR ITEM 2 WAS BASED ON THAT CONTAINED IN PURCHASE REQUEST DOCUMENT NO. WHICH HAD BEEN FURNISHED TO THE DIRECTORATE OF PROCUREMENT BY ENGINEERING SERVICES DIVISION OF DEFENSE ELECTRONICS SUPPLY CENTER AND WHICH DOCUMENT SHOWED THAT YOUR FIRM WAS THE ONLY KNOWN SOURCE FOR THAT REQUIRED UNIT AND THAT NO DATA SUFFICIENT FOR COMPETITIVE PROCUREMENT BY FORMAL ADVERTISING WAS AVAILABLE.

B-154432, JUL. 21, 1964

TO PRD ELECTRONICS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MAY 20, 1964, PDS 500, ADDRESSED TO DEFENSE ELECTRONICS SUPPLY CENTER, DAYTON, OHIO, PROTESTING THE AWARD OF A CONTRACT FOR 100 SEMICONDUCTOR DEVICE HOLDERS TO DOUGLAS MICROWAVE COMPANY, INC., UNDER REQUEST FOR PROPOSAL DSA-9-64-2806. YOUR PROTEST WAS REFERRED TO THIS OFFICE BY HEADQUARTERS DEFENSE SUPPLY AGENCY.

THE REQUEST FOR PROPOSAL WAS ISSUED ON FEBRUARY 28, 1964, BY DEFENSE ELECTRONICS SUPPLY CENTER FOR THREE VARIOUS ELECTRONICS PARTS WITH ITEM 2 BEING DESCRIBED AS "HOLDER, SEMICONDUCTOR DEVICE POLYTECHNIC RESEARCH AND DEVELOPMENT COMPANY P/N PRD612A.' ATTACHED TO AND MADE A PART OF THE REQUEST FOR PROPOSAL WAS DESC FORM P-71-111 ENTITLED "REPLACEMENT SPARES" WHICH PROVIDES THAT THE PARTS OFFERED BY THOSE SUBMITTING PROPOSALS MUST BE IDENTICAL TO OR FUNCTIONALLY, PHYSICALLY, MECHANICALLY AND ELECTRICALLY INTERCHANGEABLE WITH THOSE PARTS CITED IN THE NOMENCLATURE OF THE VARIOUS ITEMS BEING PROCURED. THE FORM FURTHER PROVIDED THAT IN ORDER TO EVALUATE PROPOSALS IT WOULD BE NECESSARY THAT THE OFFEROR INDICATE WHETHER HE COULD EITHER FURNISH THE NAMED MANUFACTURER'S CITED PART; OR FURNISH ANOTHER MANUFACTURER'S PART TO BE MADE IN ACCORDANCE WITH THE CITED MANUFACTURER'S DRAWING; OR FURNISH A PART NOT MADE IN ACCORDANCE WITH THE CITED MANUFACTURER'S DRAWING BUT WHICH HAD BEEN DETERMINED, UNDER PRIOR MILITARY CONTRACTS, TO BE FUNCTIONALLY, PHYSICALLY, MECHANICALLY AND ELECTRICALLY INTERCHANGEABLE WITH THE PART CITED IN THE REQUEST FOR PROPOSAL.

THE NOMENCLATURE FOR ITEM 2 WAS BASED ON THAT CONTAINED IN PURCHASE REQUEST DOCUMENT NO. D 3514644, DATED DECEMBER 15, 1963, WHICH HAD BEEN FURNISHED TO THE DIRECTORATE OF PROCUREMENT BY ENGINEERING SERVICES DIVISION OF DEFENSE ELECTRONICS SUPPLY CENTER AND WHICH DOCUMENT SHOWED THAT YOUR FIRM WAS THE ONLY KNOWN SOURCE FOR THAT REQUIRED UNIT AND THAT NO DATA SUFFICIENT FOR COMPETITIVE PROCUREMENT BY FORMAL ADVERTISING WAS AVAILABLE. HOWEVER, SINCE THE ESTIMATED AMOUNT OF THE PROCUREMENT WAS IN EXCESS OF $10,000, IT WAS NECESSARY TO COMPLY WITH THE PROVISIONS OF ARMED SERVICES PROCUREMENT REGULATION 1-1003 AND PUBLICIZE IN THE COMMERCE BUSINESS DAILY. AS A RESULT FIRMS OTHER THAN YOURS WERE ABLE TO REQUEST AND RECEIVE THE REQUEST FOR PROPOSAL.

BASED ON THE INFORMATION RECEIVED FROM ENGINEERING SERVICES DIVISION, THE CONTRACTING OFFICER MADE A DETERMINATION AND FINDING THAT THIS PROCUREMENT COULD BE NEGOTIATED UNDER THE AUTHORITY OF 10 U.S.C. 23404 (A) (10) AS IMPLEMENTED BY ARMED SERVICES PROCUREMENT REGULATION 3-210.2 (XIII) BECAUSE OF THE IMPRACTICABILITY OF OBTAINING COMPETITION BECAUSE OF THE IMPOSSIBILITY OF DRAFTING ADEQUATE SPECIFICATIONS OR A PURCHASE DESCRIPTION FOR COMPETITIVE BIDDING.

THE REQUEST FOR PROPOSAL WAS SENT TO THOSE ELECTRONICS CONCERNS WHO HAD EXPRESSED A DESIRE TO RECEIVE IT, AND TWO OFFERORS, YOU AND DOUGLAS, PRESENTED A PROPOSAL ON ITEM 2 WITH THE LATTER NAMED COMPANY SUBMITTING THE LOWER PRICE OF $109 COMPARED TO YOUR PRICE OF $111 AND OFFERING ITS OWN PART, PR-151, AS AN ALTERNATE TO THE CITED PRD PART. IN ORDER TO AID IN AN EVALUATION OF ITS UNIT, DOUGLAS ALSO SUBMITTED A PRD CATALOGUE PAGE SHOWING A PICTURE OF THE CITED PART AND CONTAINING A BRIEF DESCRIPTION OF IT, TOGETHER WITH ITS OWN DRAWING SETTING OUT SPECIFICATIONS OF THE UNIT IT PROPOSED TO FURNISH. ON THE DRAWING APPEARED THE FOLLOWING LEGEND: "THE DOUGLAS MODEL PR-151 CONFORMS IN EVERY DETAIL ELECTRICALLY AND MECHANICALLY AND IT IS INTERCHANGEABLE WITH PRD PART NO. 612A.' ADDITION, DOUGLAS ALSO CERTIFIED ON DESC FORM P-71-111 THAT IT WOULD ,FURNISH A PART MANUFACTURED IN ACCORDANCE WITH THE CITED MANUFACTURER'S DRAWING NUMBER BUT BEARING A DIFFERENT PART OR TYPE NUMBER.'

UPON RECEIPT OF THE DOUGLAS PROPOSAL, THE CONTRACTING OFFICER SUBMITTED THE DOUGLAS DRAWING AND OTHER MATERIAL SUBMITTED BY DOUGLAS TO THE TECHNICAL DIVISION OF DESC FOR EVALUATION OF THE PROPOSED DOUGLAS ITEM. ON APRIL 17, 1964, THE TECHNICAL DETERMINATION BRANCH OF TECHNICAL DIVISION, DESC, MADE ITS DETERMINATION THAT DOUGLAS PART PR 151 WAS TECHNICALLY ACCEPTABLE. UPON RECEIPT OF THE TECHNICAL EVALUATION AND UPON AN AFFIRMATIVE FINDING OF RESPONSIBILITY, THE CONTRACTING OFFICER ACCEPTED THE DOUGLAS PROPOSAL ON MAY 15, 1964, AND AWARDED CONTRACT DSA 9-12487.

YOUR PROTEST IS BASED ON THREE SPECIFIC POINTS: (1) THAT SINCE YOU WERE THE CITED MANUFACTURER FOR THE UNIT, DOUGLAS COULD NOT FURNISH A PRD PART; (2) THAT SINCE A PRD DRAWING WOULD NOT BE AVAILABLE TO ANOTHER MANUFACTURER, A PART COULD NOT BE FURNISHED WHICH WOULD BE IN ACCORDANCE WITH THAT DRAWING; AND (3) THAT DOUGLAS DOES NOT MANUFACTURE A PART WHICH HAS BEEN DETERMINED INTERCHANGEABLE WITH THE PRD PART UNDER A PRIOR MILITARY CONTRACT.

AS TO YOUR FIRST POINT, ARMED SERVICES PROCUREMENT REGULATIONS 1 1206.2 THROUGH 4 MAKE PROVISION FOR THE INCLUSION IN INVITATION FOR BIDS OF BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS AND LAY DOWN THE POLICIES AND PROCEDURES THEREFOR. ARMED SERVICES PROCUREMENT REGULATION APPLICABLE TO NEGOTIATED PROCUREMENTS.' WHILE THAT REGULATION PROVIDES THAT THE BRAND NAME OR EQUAL CLAUSE SET FORTH IN ASPR 1-1206.3 IS NOT NECESSARY IN NEGOTIATED PROCUREMENTS, IT FURTHER PROVIDES THAT "SUPPLIERS SHALL BE SUITABLY INFORMED THAT PROPOSALS OFFERING PRODUCTS DIFFERENT FROM THE PRODUCTS REFERENCED BY BRAND NAME WILL BE CONSIDERED IF THE CONTRACTING OFFICER DETERMINES THAT SUCH OFFERED PRODUCTS ARE EQUAL IN ALL SIGNIFICANT AND MATERIAL RESPECTS TO THE PRODUCTS REFERENCED.' THAT PROVISION WAS FULFILLED IN THE PRESENT PROCUREMENT BY THE INCLUSION OF DESC FORM P-71- 111 "REPLACEMENT SPARES," SUBSECTIONS (B) AND (C) OF WHICH WERE SPECIFICALLY FOR USE BY AN OFFEROR PROPOSING TO FURNISH AN ITEM DIFFERENT THAN THAT CITED IN THE NOMENCLATURE. IN A NOTE THEREON IT WAS REQUESTED THAT SUFFICIENT DATA BE FURNISHED TO ALLOW AN ACCEPTABILITY EVALUATION. THUS, UNDER THE REQUEST FOR PROPOSAL A MANUFACTURER COULD OFFER TO FURNISH A PART SIMILAR TO THE PRD PART. DOUGLAS OFFERED TO FURNISH A PART SIMILAR TO THE PART CITED IN YOUR DRAWING NUMBER AND, UPON EVALUATION, SUCH PART WAS FOUND ACCEPTABLE.

AS TO YOUR SECOND POINT, THE DRAWING OF THE PART IN QUESTION IS NOT IN THE FILES AT DESC AND NO DRAWING ACCOMPANIED THE REQUEST FOR PROPOSAL. WHILE DOUGLAS DID CERTIFY ON DESC FORM P-71-111 THAT IT WOULD FURNISH A PART "MANUFACTURED IN ACCORDANCE WITH THE CITED MANUFACTURER'S DRAWING MBER," IT WAS NOT REQUIRED TO SUBMIT EVIDENCE THAT IT HAS THE PRD DRAWING, OR FROM WHAT SOURCE IT OBTAINED OR EXPECTS TO OBTAIN IT. IT DOES NOT APPEAR THAT THE DRAWING WAS FURNISHED BY THE GOVERNMENT, NOR DO YOU ALLEGE THAT THIS IS THE CASE. HOWEVER, SINCE DOUGLAS' OFFER TO FURNISH AN EQUAL PRODUCT WAS FOUND TO BE ACCEPTABLE, AND SINCE IT IS OBLIGATED TO DO SO BY THE CONTRACT AWARDED, IT APPEARS TO BE IMMATERIAL WHETHER SUCH ITEM COULD BE MANUFACTURED WITHOUT THE USE OF YOUR DRAWING.

APPARENTLY YOUR THIRD POINT HAS REFERENCE TO THE THIRD CERTIFICATE ON DESC FORM P-71-111. HOWEVER, DOUGLAS DID NOT EXECUTE THAT CERTIFICATE. IT ONLY SAID IT WOULD FURNISH A PART MANUFACTURED IN ACCORDANCE WITH YOUR DRAWING NUMBER. ON THE DRAWING IT SUPPLIED WITH ITS PROPOSAL, DOUGLAS STATED THAT THE PART IT PROPOSED TO FURNISH "CONFORMS IN EVERY DETAIL ELECTRICALLY AND MECHANICALLY AND IS INTERCHANGEABLE WITH PRD PART NO. 612A.' THUS, THE REQUIREMENT THAT INTERCHANGEABILITY SHALL HAVE BEEN DETERMINED UNDER A PREVIOUS MILITARY CONTRACT IS NOT APPLICABLE.