B-161490, SEP. 19, 1967

B-161490: Sep 19, 1967

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SECOND LOW BIDDER WHO OFFERED SUPERIOR EQUIPMENT UNDER A PERFORMANCE TYPE SPECIFICATIONS MUST HAVE PROTEST DENIED SINCE DETERMINATION OF TYPE OF EQUIPMENT INVOLVING JUDGMENTS AS TO TECHNICAL AND SCIENTIFIC MATTERS IS BINDING UPON COMPTROLLER GENERAL UNLESS BAD FAITH OR LACK OF SUBSTANTIAL BASIS IS INVOLVED. IN VIEW OF RECORD THERE IS NO BASIS FOR SUCH CONCLUSION. INC.: REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 12. EIGHT BIDS WERE RECEIVED. (WALTERS) WHO WAS THE LOW BIDDER. YOUR BID WAS THE SECOND LOW BID. THE PROCURING ACTIVITY HAS DETERMINED THAT WALTERS IS RESPONSIBLE AND HAS THE CAPACITY TO PRODUCE THE CALIBRATORS. YOU CONTEND THAT CERTAIN IMPROVEMENTS WERE MADE IN CAPABILITY AND RELIABILITY OF THE ABOVE EQUIPMENT AND THE NAVY RECOGNIZED THESE IMPROVEMENTS BY ASSIGNING SEPARATE NOMENCLATURES TO THE EQUIPMENT.

B-161490, SEP. 19, 1967

BIDS - SPECIFICATIONS - COMPLIANCE DECISION TO SENTINEL ELECTRONICS, INC. CONCERNING PROTEST AGAINST AWARD TO WILLIAM WALTERS, INC. FOR RADAR RANGE CALIBRATORS FOR NAVY PURCHASING OFFICE. SECOND LOW BIDDER WHO OFFERED SUPERIOR EQUIPMENT UNDER A PERFORMANCE TYPE SPECIFICATIONS MUST HAVE PROTEST DENIED SINCE DETERMINATION OF TYPE OF EQUIPMENT INVOLVING JUDGMENTS AS TO TECHNICAL AND SCIENTIFIC MATTERS IS BINDING UPON COMPTROLLER GENERAL UNLESS BAD FAITH OR LACK OF SUBSTANTIAL BASIS IS INVOLVED. IN VIEW OF RECORD THERE IS NO BASIS FOR SUCH CONCLUSION.

TO SENTINEL ELECTRONICS, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 12, 1967, AND SUPPLEMENTAL LETTER DATED JULY 12, 1967, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER CONCERN UNDER INVITATION FOR BIDS NO. N00600-67 B-0712-S, ISSUED BY THE U.S. NAVY PURCHASING OFFICE.

THE SUBJECT INVITATION, ISSUED ON MARCH 2, 1967, CALLED FOR BIDS ON 127 (STEPLADDER QUANTITIES OF 99, 113, AND 127) AN/USM-115 RADAR RANGE CALIBRATORS. EIGHT BIDS WERE RECEIVED, INCLUDING ONE FROM WILLIAM WALTERS INC. (WALTERS) WHO WAS THE LOW BIDDER. YOUR BID WAS THE SECOND LOW BID. AFTER A PREAWARD SURVEY AND EXTENDED TECHNICAL DISCUSSIONS WITH WALTERS, THE PROCURING ACTIVITY HAS DETERMINED THAT WALTERS IS RESPONSIBLE AND HAS THE CAPACITY TO PRODUCE THE CALIBRATORS.

BY TELEGRAM OF MAY 12, 1967, YOU PROTESTED AGAINST AWARD "TO ANY OTHER THAN THE LOW QUALIFIED BIDDER.' IN YOUR LETTER OF JULY 12, 1967, YOU STATED THAT YOU PRESENTLY HAD TWO CONTRACTS WITH THE NAVY FOR THE PRODUCTION OF AN/USM-115 RADAR RANGE CALIBRATORS. DURING THE PERFORMANCE OF THESE CONTRACTS, YOU CONTEND THAT CERTAIN IMPROVEMENTS WERE MADE IN CAPABILITY AND RELIABILITY OF THE ABOVE EQUIPMENT AND THE NAVY RECOGNIZED THESE IMPROVEMENTS BY ASSIGNING SEPARATE NOMENCLATURES TO THE EQUIPMENT. YOU FURTHER CONTEND THAT YOUR BID WAS BASED ON THIS IMPROVED VERSION OF THE EQUIPMENT, WHICH IS MORE COSTLY, WHILE THE OTHER BIDS WERE BASED ON THE UNIMPROVED VERSION AND CONSEQUENTLY THE BIDS COULD NOT BE PROPERLY EVALUATED OR EQUATED, AND ACCEPTANCE OF ANY OTHER BID WOULD NOT PROVIDE WHAT THE NAVY REQUIRES. IT IS YOUR VIEW THAT SINCE THE EQUIPMENT TO BE SUPPLIED UNDER YOUR CONTRACTS IS SUPERIOR TO THE EQUIPMENT UNDER THE PRESENT PROCUREMENT, THE LATTER PROCUREMENT SHOULD BE CANCELED AND READVERTISED, THUS GIVING ALL THE BIDDERS AN OPPORTUNITY TO BID ON THE IMPROVED VERSION OF THE EQUIPMENT.

THE COGNIZANT NAVY COMMAND HAS ADVISED US THAT THE BASIC SPECIFICATIONS FOR THE AN/USM 115 ARE LARGELY OF A PERFORMANCE TYPE, SO THAT EQUIPMENT MEETING THE REQUIREMENTS MAY BE PRODUCED IN SEVERAL WAYS; THAT THE DESIGNATION 115 A HAS BEEN ASSIGNED TO THE ITEM BEING MADE BY YOU, AND QUITE PROBABLY ANOTHER DESIGNATION 115 B, WILL BE ASSIGNED TO THE NEXT MANUFACTURER'S PRODUCT. IT IS NOT AGREED THAT YOUR DEVICE IS NECESSARILY BETTER THAN THE AN/USM-115 CALLED FOR BY THE PRESENT INVITATION; IT IS MERELY DIFFERENT AND THE FACT THAT IT DIFFERS IS ALL THAT IS SIGNIFIED BY THE CHANGE IN NOMENCLATURE ASSIGNED TO YOUR EQUIPMENT. MOREOVER, THE PROCURING ACTIVITY HAS DETERMINED THAT THE SPECIFICATIONS UNDER THE PRESENT PROCUREMENT ARE ADEQUATE AND THAT CALIBRATORS PRODUCED THEREUNDER WILL ADEQUATELY FILL THE NAVY'S NEEDS.

THE QUESTION OF WHICH VERSION OF CALIBRATOR WILL BEST FULFILL THE NEEDS OF THE PROCURING ACTIVITY MUST, OF NECESSITY, BE DETERMINED BY THE NAVY, AND SUCH ADMINISTRATIVE DETERMINATIONS, ESPECIALLY THOSE INVOLVING JUDGMENTS AS TO TECHNICAL AND SCIENTIFIC MATTERS, ARE AS A RULE REGARDED BY OUR OFFICE AS BINDING UPON US UNLESS THEY CLEARLY APPEAR TO INVOLVE BAD FAITH OR NOT TO BE BASED UPON ANY SUBSTANTIAL GROUNDS. ON THE BASIS OF THE RECORD BEFORE US, WE CANNOT SAY THAT THE DETERMINATION BY THE NAVY THAT CALIBRATORS PRODUCED ACCORDING TO THE SPECIFICATIONS OF THE PRESENT INVITATION WILL FULFILL THEIR NEEDS, IS ARBITRARY, CAPRICIOUS OR IN BAD FAITH OR WITHOUT SUBSTANTIAL GROUNDS. CONSEQUENTLY OUR OFFICE CANNOT PROPERLY QUESTION THIS DETERMINATION. SEE 38 COMP. GEN. 71, 75; 36 COMP. GEN. 251, 252; B-160502, MAY 2, 1967; B-155394, MARCH 31, 1965; AND B- 152996, APRIL 8, 1964.

FOR THE ABOVE REASONS, WE FIND NO OBJECTION TO THE SPECIFICATIONS CONTAINED IN THE PRESENT INVITATION OR AWARD TO THE LOWEST RESPONSIVE, REASPONSIBLE BIDDER THEREUNDER, AND YOUR PROTEST IS THEREFORE DENIED.