B-164970, SEP. 25, 1968

B-164970: Sep 25, 1968

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THE SIX BIDS RECEIVED BY THE ELECTRONIC SUPPLY CENTER WERE OPENED AS SCHEDULED. YOUR PROTEST IS BASED ON THE CONTENTION THAT ADEC MICROPHONES WILL NOT BE FOUND ACCEPTABLE. IT IS REPORTED THAT SUBSEQUENT SHIPMENTS MET SPECIFICATIONS. THE RECORD FURTHER DISCLOSES THAT ALTHOUGH NO PRE-AWARD SURVEY OF ADEC WAS CONDUCTED AT THIS TIME. WHICH IS THE AGENCY THAT WOULD ADMINISTER THE CONTRACT TO ADEC. STATED THAT THREE PREVIOUS PRE AWARD SURVEYS HAD BEEN PERFORMED ON ADEC CONCERNING MICROPHONES AND ALL SURVEYS HAD RESULTED IN AN AFFIRMATIVE DETERMINATION THAT ADEC WAS A RESPONSIBLE BIDDER. THE CONTRACTING OFFICER DETERMINED THAT ADEC IS A RESPONSIBLE BIDDER FOR THE PURPOSES OF THE SUBJECT INVITATION.

B-164970, SEP. 25, 1968

TO ASTROCOM ELECTRONICS, INC.:

WE REFER TO YOUR LETTERS OF JULY 30 AND SEPTEMBER 4, 1968, PROTESTING AGAINST AWARD OF A CONTRACT TO ADEC, INC., UNDER INVITATION FOR BIDS NO. DSA-900-68-B-4552 FOR FURNISHING 4106 MICROPHONES, TYPE M100/AIC, IN ACCORDANCE WITH SPECIFICATIONS MIL-M-27297 (USAF), ISSUED BY DEFENSE ELECTRONIC SUPPLY CENTER, DAYTON, OHIO.

ON JULY 24, THE SIX BIDS RECEIVED BY THE ELECTRONIC SUPPLY CENTER WERE OPENED AS SCHEDULED, ADEC, INC., NEWARK, NEW JERSEY, SUBMITTED THE LOW BID WITH A UNIT PRICE OF $5.42 EACH FOR THE MICROPHONES IN QUESTION, AND ASTROCOM SUBMITTED THE NEXT LOW BID OF $5.60 EACH.

YOUR PROTEST IS BASED ON THE CONTENTION THAT ADEC MICROPHONES WILL NOT BE FOUND ACCEPTABLE, BECAUSE THEY DO NOT MEET APPLICABLE SPECIFICATIONS, AND THEREFORE THE PROCURING ACTIVITY SHOULD CEASE BUYING SUCH ITEMS. YOU DO NOT POINT OUT THE SHORTCOMINGS OF THE ADEC MICROPHONES, BUT CALL OUR ATTENTION TO A REPORT ON HAND AT THE DEFENSE ELECTRONIC SUPPLY CENTER ALLEGEDLY CONTAINING A DOCUMENTATION REGARDING ADEC MICROPHONES.

THE ADMINISTRATIVE REPORT DISCLOSES THAT ADEC, INC., HAD BEEN THE SUPPLIER OF M-100/AIC MICROPHONES UNDER THREE CONTRACTS, NOS. DSA 900 22252, DSA 900-68-C-0803 AND DSA 900-68-C-9244, BETWEEN JULY 1965 AND JUNE 1968, FOR A TOTAL OF 15665 ITEMS. THE REPORT FURTHER STATES THAT IN MAY 1968, DURING THE PERFORMANCE OF DSA 900-68-C-9244 CONTRACT, THE DEFENSE ELECTRONIC SUPPLY CENTER (DESC) RECEIVED AN UNSATISFACTORY MATERIAL REPORT FROM THE AIR FORCE ON MICROPHONES SUPPLIED BY ADEC. THE AIR FORCE TESTED EIGHT ADEC MICROPHONES SELECTED AT RANDOM AND CONCLUDED THAT THE ITEMS FAILED TO PASS THE SPECIFICATION REQUIREMENTS IN FOUR AREAS, NAMELY; SENSITIVITY AT GROUND LEVEL, DIRECTIONAL CHARACTERISTIC, RESPONSE AT GROUND AND HARMONIC DISTORTION. BASED ON THIS UNSATISFACTORY MICROPHONE REPORT, QUALITY ASSURANCE DIVISION OF DESC REQUESTED THE IMPLEMENTATION OF A SPECIAL INSPECTION PROCEDURE IN ORDER TO REJECT AND PRECLUDE THE RECEIPT OF NONCONFORMING ADEC MICROPHONES. IT IS REPORTED THAT SUBSEQUENT SHIPMENTS MET SPECIFICATIONS.

A QUALITY TECHNICAL REPORT DATED AUGUST 16, 1968, STATES THAT EVALUATION OF TEST REPORTS OF THE REQUIRED INSPECTION INDICATED THAT ADEC HAS MET THE SPECIFICATION REQUIREMENTS, AND THE QUALITY ASSURANCE DIVISION OF DESC RECOMMENDED THAT ADEC BE CONSIDERED A SUPPLIER FOR THE TYPE M-100/AIC MICROPHONE.

THE RECORD FURTHER DISCLOSES THAT ALTHOUGH NO PRE-AWARD SURVEY OF ADEC WAS CONDUCTED AT THIS TIME, DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT, SPRINGFIELD, NEW JERSEY, WHICH IS THE AGENCY THAT WOULD ADMINISTER THE CONTRACT TO ADEC, STATED THAT THREE PREVIOUS PRE AWARD SURVEYS HAD BEEN PERFORMED ON ADEC CONCERNING MICROPHONES AND ALL SURVEYS HAD RESULTED IN AN AFFIRMATIVE DETERMINATION THAT ADEC WAS A RESPONSIBLE BIDDER. SIMILARLY, THE CONTRACTING OFFICER DETERMINED THAT ADEC IS A RESPONSIBLE BIDDER FOR THE PURPOSES OF THE SUBJECT INVITATION.

IT IS A WELL ESTABLISHED RULE THAT THE QUESTION OF THE BIDDER'S RESPONSIBILITY IS PURELY A FACTUAL QUESTION WHICH IS COMMITTED TO ADMINISTRATIVE DETERMINATION AND WILL NOT BE DISTRUBED UNLESS IT IS SHOWN THAT SUCH DETERMINATION WAS NOT BASED ON SUBSTANTIAL EVIDENCE. 36 COMP. GEN. 42; 37 ID. 798; 38 ID. 131; 38 ID. 781. SUCH A RESPONSIBILITY HAS BEEN DEFINED AS INCLUDING, AMONG OTHER THINGS, ORGANIZATION, TECHNICAL KNOWLEDGE, EXPERIENCE, SKILLS,"KNOW-HOW," TECHNICAL EQUIPMENT, AND FACILITIES. 38 COMP. GEN. 864. SINCE THE INFORMATION BEFORE US APPEARS TO SUPPORT THE DETERMINATION OF THE CONTRACTING OFFICER THAT ADEC IS A RESPONSIBLE LOW BIDDER UNDER THE STANDARDS SET FORTH IN ARMED SERVICES PROCUREMENT REGULATION 1-903, WE FIND NO BASIS TO QUESTION THE FINDING.

ASIDE FROM THE ALLEGATION THAT ADEC MICROPHONES ARE NONCOMFORMING TO THE SPECIFICATIONS, YOU DO NOT CONTEND THAT ADEC SUBMITTED A NONRESPONSIVE BID OR THAT IT TOOK EXCEPTIONS TO THE TERMS OF THE INVITATION. ADEC APPEARS TO BE A RESPONSIVE LOW BIDDER, LEGALLY BOUND TO FURNISH MICROPHONES CONFORMING TO THE SPECIFICATIONS, AND THE GOVERNMENT HAS ADEQUATE REMEDY UNDER THE WARRANTY CLAUSES OF THE PROPOSED CONTRACT FOR CORRECTION OR REPLACEMENT OF ANY NONCONFORMING ITEMS WHICH MAY BE DELIVERED. THEREFORE FIND NO LEGAL BASIS TO QUESTION THE PROPOSED AWARD TO ADEC.