B-158852, JUL. 21, 1966

B-158852: Jul 21, 1966

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TO CREST ULTRASONICS CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 31. THIS NOTICE WAS PUBLISHED IN THE COMMERCIAL BUSINESS DAILY. DATA WAS OBTAINED FROM THREE CORPORATIONS. ONE OF WHICH WAS CREST. WERE PREPARED. NINE PROPOSALS WERE RECEIVED BY THE CLOSE OF BUSINESS ON FEBRUARY 19. THE LOWEST PROPOSAL WAS SUBMITTED BY ACOUSTICA ASSOCIATES. ALL THE PROPOSALS WERE SENT FOR EVALUATION TO THE ASSISTANT DIRECTOR FOR RESEARCH AND DEVELOPMENT. A TECHNICAL EVALUATION WAS MADE OF EACH PROPONENT'S RESPONSE TO THE PROPOSAL. A FIRM FIXED-PRICE CONTRACT WAS AWARDED TO ACOUSTICA. IN YOUR LETTER OF PROTEST YOU CONTEND THAT ALTHOUGH YOUR PRICE WAS HIGHER. YOUR REASONS FOR BIDDING A HIGHER PRICE WERE THAT THE DEPARTMENT HAD REQUESTED YOU TO DEMONSTRATE YOUR EQUIPMENT.

B-158852, JUL. 21, 1966

TO CREST ULTRASONICS CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 31, 1966, PROTESTING THE AWARD OF CONTRACT TO ACOUSTICA ASSOCIATES, INC., LOS ANGELES, CALIFORNIA, UNDER REQUEST FOR PROPOSALS 9-66 OF JANUARY 19, 1966, ISSUED BY THE POST OFFICE DEPARTMENT.

ON DECEMBER 15, 1965 THE DEPARTMENT PUBLISHED A NOTICE SOLICITING SOURCES FOR THE PROCUREMENT OF FOUR ULTRASONIC CLEANERS. THIS NOTICE WAS PUBLISHED IN THE COMMERCIAL BUSINESS DAILY. THE DEPARTMENT HAD DETERMINED TO INITIATE A PROJECT TO DEVELOP, TEST, AND EVALUATE THESE CLEANERS IN A PROGRAM THAT WOULD RESULT IN REDUCTION OF MAINTENANCE COSTS OF THE MANY VARIED MECHANICAL DEVICES EMPLOYED IN THE POSTAL SERVICE.

THE DEPARTMENT SOLICITED INFORMATION FROM SEVERAL ULTRASONIC CLEANER PRODUCERS IN AN EFFORT TO CONTRIBUTE TO ITS TECHNICAL KNOWLEDGE OF THE INDUSTRY, AND TO PREPARE REQUIREMENTS UPON WHICH VENDORS MIGHT BASE THEIR BIDS. DATA WAS OBTAINED FROM THREE CORPORATIONS, ONE OF WHICH WAS CREST, AND "POST OFFICE DEPARTMENT REQUIREMENTS, CLEANING EQUIPMENT (ULTRASONIC)" DATED JANUARY 19, 1966, WERE PREPARED.

ON JANUARY 21, 1966, THE DEPARTMENT SENT REQUESTS FOR PROPOSALS TO FIFTEEN SOURCES, WITH THE ,REQUIREMENTS" ATTACHED TO THE REQUESTS. NINE PROPOSALS WERE RECEIVED BY THE CLOSE OF BUSINESS ON FEBRUARY 19, 1966. THE LOWEST PROPOSAL WAS SUBMITTED BY ACOUSTICA ASSOCIATES, WITH CREST SUBMITTING THE SECOND LOWEST. ALL THE PROPOSALS WERE SENT FOR EVALUATION TO THE ASSISTANT DIRECTOR FOR RESEARCH AND DEVELOPMENT. THERE, A TECHNICAL EVALUATION WAS MADE OF EACH PROPONENT'S RESPONSE TO THE PROPOSAL, AND OF THE PROPONENT'S ORGANIZATION, FACILITIES, FINANCIAL STATUS, AND PERSONNEL. THE ASSISTANT DIRECTOR FOR RESEARCH AND DEVELOPMENT DETERMINED THAT THE DATA SUBMITTED BY THE LOW BIDDER INDICATED FULL COMPLIANCE WITH THE REQUIREMENTS AND RECOMMENDED THAT AWARD BE MADE TO IT. A FIRM FIXED-PRICE CONTRACT WAS AWARDED TO ACOUSTICA, MARCH 25, 1966.

IN YOUR LETTER OF PROTEST YOU CONTEND THAT ALTHOUGH YOUR PRICE WAS HIGHER, THE EQUIPMENT YOU PROPOSED WOULD SATISFY THE MOST DIFFICULT OF ALL THE CLEANING JOBS SET FORTH IN THE REQUIREMENTS. YOUR REASONS FOR BIDDING A HIGHER PRICE WERE THAT THE DEPARTMENT HAD REQUESTED YOU TO DEMONSTRATE YOUR EQUIPMENT, AND THAT YOU HAD FAMILIARIZED YOURSELVES WITH THE DEGREE OF CLEANLINESS DEEMED NECESSARY BY THE DEPARTMENT PERSONNEL, THEREBY PROMPTING YOU TO FEEL THAT A MORE INVOLVED PIECE OF EQUIPMENT WAS NECESSARY THAN THE "REQUIREMENTS" MIGHT INDICATE. YOU FURTHER CONTEND THAT ACOUSTICA'S EQUIPMENT IS NOT CAPABLE OF ACCOMPLISHING THE WORK BECAUSE IT OPERATES ON BUT A SINGLE FREQUENCY, WHEREAS THE EQUIPMENT DEVELOPED BY YOU OPERATES ON SIX FREQUENCIES, THEREBY BEING FULLY CAPABLE OF MEETING THE DEPARTMENT'S NEEDS.

IN A NEGOTIATED PROCUREMENT, IT IS THE DUTY OF THE GOVERNMENT CONTRACTING OFFICIALS TO PLACE THE CONTRACT WITH THE CONTRACTOR MAKING THE BEST FINAL PROPOSAL IN TERMS OF THE NEEDS OF THE GOVERNMENT. THE SELECTION OF THE BEST QUALIFIED CONTRACTOR FOR THE AWARD IS A MATTER FOR THE ADMINISTRATIVE OFFICE CONCERNED IN THE EXERCISE OF ITS BEST JUDGMENT AS TO THE INTERESTS OF THE GOVERNMENT. B-143702, SEPTEMBER 27, 1960.

THE RECORD BEFORE US INDICATES THAT THE EVALUATION WAS ACCOMPLISHED ON AN OBJECTIVE BASIS USING FACTORS ESTABLISHED IN THE OVERALL QUALITY OF ULTRASONIC CLEANING EQUIPMENT, AND EXCLUDING PROPRIETARY FEATURES OF THE PROPONENTS. NOT ONLY WAS ACOUSTICA'S PRICE THE LOWEST, BUT THEIR SCORE ON THE RESEARCH AND DEVELOPMENT EVALUATION WORK SHEET WAS HIGHER THAN THAT OF CREST, AND HIGHER THAN THOSE OF ALL THE OTHER PROPONENTS BUT ONE, WHICH SCORE WAS EQUAL TO THE ACOUSTICA SCORE, BUT WHOSE PRICE WAS THE HIGHEST PRICE PROPOSED.

THE QUESTION WHETHER THIS DETERMINATION BASED UPON THE DEPARTMENT'S EVALUATION OF THE PROPOSALS WAS CORRECT IS NOT ORDINARILY CONSIDERED TO BE WITHIN THE JURISDICTION OF THIS OFFICE. IN OUR DECISION B 139830, 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. * *

THE POST OFFICE DEPARTMENT REPORTS THAT THE SUBJECT CONTRACT WAS NEGOTIATED PURSUANT TO 41 U.S.C. 252 (C) (11), AND FEDERAL PROCUREMENT REGULATIONS 1-3.211, WHICH AUTHORIZE THE AGENCY TO NEGOTIATE, WITHOUT FORMAL ADVERTISING, THE PROCUREMENT OF PROPERTY DETERMINED TO BE FOR EXPERIMENTAL DEVELOPMENT, OR RESEARCH WORK. IT APPEARS FROM THE RECORD THAT THE CONTRACTING OFFICIALS HAVE GIVEN THE MATTER OF SELECTING THE BEST PROPOSAL CAREFUL CONSIDERATION. THE PURPOSE FOR THE PROCUREMENT IS TO APPLY THIS CLEANING TECHNIQUE TO A CONSIDERABLE NUMBER OF ITEMS OF POSTAL EQUIPMENT AND TO DETERMINE THROUGH EXPERIMENTATION AND TESTING WHETHER OR NOT THE CLEANING TECHNIQUE WILL RESULT IN A REDUCTION OF MAINTENANCE COSTS TO THE DEPARTMENT. IN VIEW OF THE DISCRETION PLACED WITH THE CONTRACTING OFFICIALS IN NEGOTIATED PROCUREMENTS OF THIS CHARACTER, AND SINCE THE RECORD DOES NOT SHOW ANY FAILURE ON THE PART OF THE CONTRACTING OFFICIALS TO EXERCISE THEIR BEST JUDGMENT IN MAKING THE AWARD, WE FIND NO BASIS TO QUESTION THE ACTION OF THE ADMINISTRATIVE OFFICE IN AWARDING THE CONTRACT TO ACOUSTICA ASSOCIATES, INC. ..END :