B-160825, APR. 13, 1967

B-160825: Apr 13, 1967

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THE RECORD FURNISHED BY THE CONTRACTING AGENCY SHOWS THAT THE PROCUREMENT WAS CONDUCTED UNDER TWO-STEP FORMAL ADVERTISING PROCEDURES PURSUANT TO WHICH UNPRICED TECHNICAL PROPOSALS WERE FIRST SOLICITED AND EVALUATED. INVITATIONS FOR BIDS THEREAFTER ISSUED TO THE EIGHT FIRMS WHOSE TECHNICAL PROPOSALS WERE DETERMINED TO BE ACCEPTABLE. THE BIDS OF DEFENSE ELECTRONICS AND YOUR FIRM WERE FIRST AND SECOND LOW. IS PRIMARILY A DATA GATHERING SYSTEM WHICH PICKS UP SPECIFIED INFORMATION THROUGH TRANSDUCERS. THE DATA ENABLES A MAINTENANCE EMPLOYEE TO DETERMINE IF A SPECIFIC SYSTEM IS OPERATIONAL OR IS NOT PERFORMING AS REQUIRED. SO PRIOR EXPERIENCE IN THE HEATING AND AIR CONDITIONING FIELDS WAS NOT A PREREQUISITE FOR AWARD.'.

B-160825, APR. 13, 1967

TO JOHNSON SERVICE COMPANY:

WE REFER TO YOUR LETTER DATED FEBRUARY 2, 1967, PROTESTING THE AWARD OF A CONTRACT FOR A CENTRAL UTILITIES MONITORING SYSTEM TO DEFENSE ELECTRONICS, INC., BY THE PURCHASING OFFICE, MARSHALL SPACE FLIGHT CENTER, HUNTSVILLE, ALABAMA, ON SEPTEMBER 7, 1965.

THE RECORD FURNISHED BY THE CONTRACTING AGENCY SHOWS THAT THE PROCUREMENT WAS CONDUCTED UNDER TWO-STEP FORMAL ADVERTISING PROCEDURES PURSUANT TO WHICH UNPRICED TECHNICAL PROPOSALS WERE FIRST SOLICITED AND EVALUATED, AND INVITATIONS FOR BIDS THEREAFTER ISSUED TO THE EIGHT FIRMS WHOSE TECHNICAL PROPOSALS WERE DETERMINED TO BE ACCEPTABLE. THE BIDS OF DEFENSE ELECTRONICS AND YOUR FIRM WERE FIRST AND SECOND LOW, RESPECTIVELY. THE CONTRACTING OFFICER HAS DESCRIBED THE SUBJECT MATTER OF THIS CONTRACT AS FOLLOWS:

"THE CENTRAL UTILITIES MONITORING SYSTEM UNDER THIS PROCUREMENT, IS PRIMARILY A DATA GATHERING SYSTEM WHICH PICKS UP SPECIFIED INFORMATION THROUGH TRANSDUCERS, FROM VARIOUS HEATING AND AIR CONDITIONING DUCTS, MOTOR BEARINGS, WATER LINES, ETC., AND RELAYS THIS DATA THROUGH EXISTING COMMUNICATIONS LINES BETWEEN VARIOUS BUILDINGS, INTO A CENTRAL CONTROL AND DISPLAY CONSOLE AT A CENTRAL MONITORING POINT. THE DATA ENABLES A MAINTENANCE EMPLOYEE TO DETERMINE IF A SPECIFIC SYSTEM IS OPERATIONAL OR IS NOT PERFORMING AS REQUIRED. THIS SYSTEM DOES NOT OPERATE OR CONTROL ANY HEATING OR AIR CONDITIONING EQUIPMENT, SO PRIOR EXPERIENCE IN THE HEATING AND AIR CONDITIONING FIELDS WAS NOT A PREREQUISITE FOR AWARD.'

THE GROUNDS OF YOUR PROTEST ARE SET FORTH IN YOUR LETTER OF FEBRUARY 2 AS FOLLOWS:

"1. THE REQUEST FOR TECHNICAL PROPOSALS INDICATED THAT ONLY CONTRACTORS WHO HAD INSTALLED SIMILAR SYSTEMS WOULD BE ELIGIBLE TO BID. IT IS QUESTIONABLE, ON THE BASIS OF OUR INVESTIGATION, WHETHER DEFENSE ELECTRONICS INC. HAD EVER INSTALLED A SIMILAR SYSTEM AT THAT TIME AND THEREFORE CHALLENGE ITS ELIGIBILITY TO HAVE SUBMITTED A BID IN THE FIRST INSTANCE.

"2. THE INITIAL DELIVERY SCHEDULE CALLED FOR A COMPLETION DATE OF MAY 15, 1966. TO DATE, THE CONTRACT IS STILL NOT COMPLETE. IN OUR OPINION, IT APPEARS THAT THE CONTRACTOR WAS NOT INITIALLY, AND IS NOT NOW, QUALIFIED FOR AND CAPABLE OF PERFORMANCE ACCORDING TO THE TERMS OF THE CONTRACT.

"JOHNSON SERVICE COMPANY RESPECTFULLY SUBMITS THAT THE SUBJECT CONTRACT SHOULD BE TERMINATED AND THAT NEW BIDS BE SOLICITED.'

CONCERNING YOUR FIRST OBJECTION THAT DEFENSE ELECTRONICS DID NOT POSSESS THE REQUIRED PRIOR EXPERIENCE IN INSTALLING SIMILAR SYSTEMS, WE HAVE BEEN UNABLE TO FIND IN THE REQUEST FOR PROPOSALS OR IN THE INVITATION FOR BIDS SUCH AN EXPERIENCE REQUIREMENT AS YOU STATE, AND YOUR LETTER FAILS TO CITE ANY SPECIFIC SECTION WHERE SUCH A REQUIREMENT WAS STATED.

THE LETTER REQUEST FOR TECHNICAL PROPOSALS INCLUDED A LIST OF CRITERIA BY WHICH TECHNICAL PROPOSALS WOULD BE EVALUATED, THE ONLY ONE PERTINENT TO YOUR CONTENTION READING AS FOLLOWS:

"III. EXPERIENCE:

GENERAL EXPERIENCE OF THE BIDDER AND BACKGROUND IN THE MANUFACTURE AND INSTALLATION OF THIS TYPE OR SIMILAR SYSTEMS. AVAILABLE SPECIFICATIONS, DATA SHEETS, CATALOGS, PHOTOGRAPHS, TECHNICAL DESCRIPTIONS, TEST DATA, OR OTHER DATA ON SIMILAR SYSTEMS SHOULD BE SUBMITTED FOR REVIEW. PAST PERFORMANCE ON CONTRACTS FOR SIMILAR SYSTEMS WILL BE CONSIDERED.' ALTHOUGH PAST PERFORMANCE WAS THUS CONSIDERED A FACTOR IN EVALUATING TECHNICAL PROPOSALS, NO PRECISE REQUIREMENTS OR STANDARDS WITH RESPECT TO MINIMUM EXPERIENCE QUALIFICATIONS WERE STATED, AND WE DO NOT THINK THE QUOTED PROVISION CAN BE CONSTRUED AS EXCLUDING ANY CONTRACTOR MERELY BECAUSE HIS EXPERIENCE HAD NOT INCLUDED PREVIOUS ACTUAL INSTALLATION OF THE SAME TYPE OF SYSTEM.

THE ONLY OTHER REQUIREMENT IN THIS PROCUREMENT WHICH COULD BE RELATED TO YOUR PROTEST CONCERNING DEFENSE ELECTRONICS' LACK OF PRIOR EXPERIENCE APPEARS IN THE FOLLOWING "STANDARD PRODUCTS" CLAUSE INCLUDED IN THE SPECIFICATION:

"13. STANDARD PRODUCTS: THE MATERIAL AND EQUIPMENT TO BE PROVIDED SHALL BE THE STANDARD PRODUCTS OF A CONTRACTOR REGULARLY ENGAGED IN THE MANUFACTURE OF THE PRODUCTS AND SHALL ESSENTIALLY DUPLICATE MATERIAL AND EQUIPMENT THAT HAVE BEEN IN SATISFACTORY USE FOR A REASONABLE PERIOD OF YEARS. ALL COMPONENTS USED IN THE SYSTEM SHALL BE STANDARD COMMERCIAL DESIGN AND COMPLY WITH THE REQUIREMENTS STATED HEREIN.' (PAGE 15, PARAGRAPH 13)

IT IS REPORTED THAT DEFENSE ELECTRONICS, INC., WAS DETERMINED TO BE TECHNICALLY ACCEPTABLE AS MEETING ALL REQUIREMENTS OF THE REQUEST FOR TECHNICAL PROPOSALS. IN ADDITION, BEFORE AWARD OF THE CONTRACT, THE CONTRACTING OFFICER WAS REQUIRED TO MAKE AN AFFIRMATIVE FINDING THAT THE PROSPECTIVE CONTRACTOR QUALIFIED AS A "RESPONSIBLE" CONTRACTOR, WHICH INCLUDES TECHNICAL AND EXPERIENCE QUALIFICATIONS.

DETERMINATIONS AS TO THESE MATTERS ARE PRIMARILY WITHIN THE ADMINISTRATIVE JURISDICTION OF THE CONTRACTING AGENCY, AND WILL NOT BE QUESTIONED BY THIS OFFICE EXCEPT UPON A CLEAR SHOWING OF BAD FAITH, WHICH DOES NOT APPEAR IN THIS CASE.

IN REGARD TO YOUR ALLEGATION CONCERNING THE SUCCESSFUL BIDDER'S DELINQUENCY IN PERFORMANCE UNDER THE TERMS OF THE CONTRACT, IT IS REPORTED THAT TWO MODIFICATIONS TO THE CONTRACT HAVE ENLARGED ITS SCOPE AND, ACCORDINGLY, THE ORIGINAL DELIVERY DATE OF MAY 8, 1966, HAS BEEN EXTENDED TO JUNE 30, 1967. WE ARE ADVISED THAT THE PROCURING ACTIVITY HAS AFFIRMATIVELY DETERMINED THAT THE CONTRACTOR IS MAKING SATISFACTORY PROGRESS.