B-160413, JAN. 19, 1967

B-160413: Jan 19, 1967

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ALL RAYTHEON UNITS WERE DELIVERED BY OCTOBER 26. THAT ITS LOW BID WAS NEVERTHELESS ACCEPTED. ALLEGEDLY BECAUSE OF A SELF-SERVING STATEMENT IN ITS BID LETTER TO THE EFFECT THAT THE RAYTHEON PRODUCT "IS SUPERIOR TO THE LAMBDA LE-103FM AND COMES CLOSER TO MEETING THE TRUE MINIMUM ESSENTIAL REQUIREMENTS OF THE GOVERNMENT THAN THE ITEM REQUESTED.'. DISCUSSION OF THESE FACTS WOULD BE AN UNNECESSARY PREAMBLE TO THE INESCAPABLE CONCLUSION THAT THE SUBJECT CONTRACT WAS IMPROPERLY AWARDED TO A NONRESPONSIVE BIDDER. " SINCE WE ARE ADVISED THAT OPERATIONAL TESTS OF THE RAYTHEON MODEL AND THE TEST DATA SUPPLIED BY RAYTHEON. INDICATE THAT THE UNIT WILL MEET THE ACTIVITY'S OPERATIONAL NEEDS. RATHER INVOLVES THE USE OF A GOVERNMENT SPECIFICATION FOR AN ITEM WHICH WAS SUPERIOR TO ONE THE GOVERNMENT ACTUALLY REQUIRED.

B-160413, JAN. 19, 1967

TO LAMBDA ELECTRONICS CORP.:

IN YOUR TELEGRAM OF NOVEMBER 16, AND LETTER OF NOVEMBER 17, 1966, YOUR PROTEST A CONTRACT AWARDED BY NAVY PURCHASING OFFICE, WASHINGTON, D.C., ON OCTOBER 7, 1966, TO RAYTHEON COMPANY--- SORENSEN OPERATION, FOR 24 POWER SUPPLIES,"LAMBDA MODEL LE103-FM OR EQUAL.' ALL RAYTHEON UNITS WERE DELIVERED BY OCTOBER 26, 1966, 5 OR MORE DAYS BEFORE THE PROCURING ACTIVITY RECEIVED YOUR OCTOBER 31 LETTER OF PROTEST.

THE FACTS PROVIDED BY THE ADMINISTRATIVE AGENCY DISCLOSE THAT RAYTHEON'S BID DID NOT OFFER TO SUPPLY A PRODUCT MEETING ALL SALIENT FEATURES OF THE LAMBDA MODEL STATED IN THE INVITATION, AND THAT ITS LOW BID WAS NEVERTHELESS ACCEPTED, ALLEGEDLY BECAUSE OF A SELF-SERVING STATEMENT IN ITS BID LETTER TO THE EFFECT THAT THE RAYTHEON PRODUCT "IS SUPERIOR TO THE LAMBDA LE-103FM AND COMES CLOSER TO MEETING THE TRUE MINIMUM ESSENTIAL REQUIREMENTS OF THE GOVERNMENT THAN THE ITEM REQUESTED.'

DISCUSSION OF THESE FACTS WOULD BE AN UNNECESSARY PREAMBLE TO THE INESCAPABLE CONCLUSION THAT THE SUBJECT CONTRACT WAS IMPROPERLY AWARDED TO A NONRESPONSIVE BIDDER. SEE, E.G., 44 COMP. GEN. 302, AND B-159595, SEPTEMBER 20, 1966. HOWEVER, WE MUST CONCLUDE THAT RAYTHEON'S PRODUCT DOES IN FACT MEET "TRUE MINIMUM ESSENTIAL REQUIREMENTS," SINCE WE ARE ADVISED THAT OPERATIONAL TESTS OF THE RAYTHEON MODEL AND THE TEST DATA SUPPLIED BY RAYTHEON, INDICATE THAT THE UNIT WILL MEET THE ACTIVITY'S OPERATIONAL NEEDS. THEREFORE, THIS PROCUREMENT DOES NOT APPEAR TO INVOLVE, AS YOU ASSUMED, THE PURCHASE OF AN ITEM INFERIOR TO ONE MEETING GOVERNMENT REQUIREMENTS, BUT RATHER INVOLVES THE USE OF A GOVERNMENT SPECIFICATION FOR AN ITEM WHICH WAS SUPERIOR TO ONE THE GOVERNMENT ACTUALLY REQUIRED. THE AGENCY WILL BE ADVISED THAT FOR ANY FUTURE PROCUREMENT OF POWER SUPPLIES MEETING THESE OPERATIONAL NEEDS, THE PURCHASE DESCRIPTION SHOULD BE REVISED TO INCORPORATE ONLY THOSE SALIENT FEATURES WHICH ACCURATELY REFLECT ACTUAL NEEDS.

THE RECORD SHOWS THAT ALTHOUGH RAYTHEON'S BID CLEARLY INDICATED THAT THE UNIT IT WAS OFFERING DID NOT MEET THE STATED SPECIFICATIONS, THE CONTRACTING OFFICER ACCEPTED ITS OFFER. ALTHOUGH THE CONTRACT APPEARS TO BE ONE FOR THE SUPPLY OF OFF-THE-SHELF ITEMS, 8 OF THE ITEMS HAVE ALREADY BEEN INSTALLED IN EQUIPMENT AND USED, AND THE REMAINING 18 HAVE BEEN SHIPED TO THE WEST COAST AND BY NOW MAY HAVE BEEN SHIPPED TO SOUTHEAST ASIA. THEY COULD NOT BE RETURNED WITHOUT CONSIDERABLE EXPENSE, AND, TO SAY THE LEAST, INCONVENIENCE TO THE GOVERNMENT, AND PROBABLY WOULD HAVE A VERY LIMITED RESALE VALUE AT THIS POINT IN TIME.

IN THESE CIRCUMSTANCES, AND CONSIDERING THE APPARENT FACT THAT YOUR PROTEST WAS NOT PROMPTLY SUBMITTED TO THE ADMINISTRATIVE AGENCY, WE BELIEVE CANCELLATION OF THE CONTRACT WOULD NOT SERVE THE INTEREST OF THE GOVERNMENT, AND WE MUST THEREFORE DECLINE TO TAKE FURTHER ACTION IN THIS MATTER. ACCORDINGLY, YOUR PROTEST IS DENIED.