B-165171, NOV. 8, 1968

B-165171: Nov 8, 1968

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INC.: REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF AUGUST 30 AND YOUR LETTER OF SEPTEMBER 16. THE RFP WAS ISSUED TO FOUR POTENTIAL SUPPLIERS FOR NEGOTIATION ON A PUBLIC EXIGENCY BASIS PURSUANT TO 10 U.S.C. 2304 (A) (2) AND ASPR 3-202.2 (III). TWO PROPOSALS WERE RECEIVED . AWARD OF CONTRACT DAAG22-69-C-0035 WAS MADE TO TELEDATA AS THE LOWEST RESPONSIBLE OFFEROR ON AUGUST 22. YOUR PROTEST IS BASED ON YOUR VIEW THAT THE SPECIFICATIONS CONTAINED IN RFP -0006 ARE INADEQUATE FOR ANY FIRM. THE EQUIPMENT WAS DEVELOPED BY STELMA APPROXIMATELY 6 YEARS AGO. THE NOMENCLATURE CV-1180/G WAS AN ARMY DESIGNATION OF THE STELMA COMMERCIAL MODEL NO. THE TECHNICAL CHARACTERISTICS SPECIFIED IN THE RFP SCHEDULE WERE TAKEN DIRECTLY FROM THE STELMA COMMERCIAL MANUAL. 3.

B-165171, NOV. 8, 1968

TO STELMA, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF AUGUST 30 AND YOUR LETTER OF SEPTEMBER 16, 1968, PROTESTING THE AWARD OF CONTRACT NO. DAAG22- 69-C-0035 TO TELEDATA, INC., UNDER REQUEST FOR PROPOSALS (RFP) NO. DAAG22- 69-R-0006, ISSUED BY THE LEXINGTON BLUE GRASS ARMY DEPOT, LEXINGTON, KENTUCKY. YOU ALSO PROTEST AGAINST THE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER RELATED RFP NO. DAAG22-69-R-0018.

THE RECORD SHOWS THAT RFP -0006, ISSUED ON JULY 18, 1968, WITH A CLOSING DATE OF AUGUST 2, 1968, SOLICITED OFFERS FOR EIGHT CONVERTERS, VOICE PLUS TELEGRAPH TERMINAL TYPE NO. CV-1180/G. THE RFP WAS ISSUED TO FOUR POTENTIAL SUPPLIERS FOR NEGOTIATION ON A PUBLIC EXIGENCY BASIS PURSUANT TO 10 U.S.C. 2304 (A) (2) AND ASPR 3-202.2 (III). TWO PROPOSALS WERE RECEIVED -- ONE FROM STELMA AT A UNIT PRICE OF $6,090 (TOTAL $48,720) AND ONE FROM TELEDATA AT A UNIT PRICE OF $5,350 (TOTAL $42,800). AFTER ADVICE FROM THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR), NEW YORK, THAT TELEDATA HAD THE ABILITY TO PERFORM AND THAT IT HAD PERFORMED SATISFACTORILY ON MANY LARGE CONTRACTS, AWARD OF CONTRACT DAAG22-69-C-0035 WAS MADE TO TELEDATA AS THE LOWEST RESPONSIBLE OFFEROR ON AUGUST 22, 1968. ADMINISTRATIVE ACTION ON RFP -0018, ISSUED ON AUGUST 27, 1968, FOR FOUR UNITS IDENTICAL TO THOSE INVOLVED HERE HAS BEEN SUSPENDED PENDING DISPOSITION OF YOUR PROTEST UNDER RFP -0006.

YOUR PROTEST IS BASED ON YOUR VIEW THAT THE SPECIFICATIONS CONTAINED IN RFP -0006 ARE INADEQUATE FOR ANY FIRM, EXCEPT STELMA, TO PRODUCE THE DESIRED END PRODUCT. IN THIS RESPECT, YOU CONTEND THAT --

1. THE EQUIPMENT WAS DEVELOPED BY STELMA APPROXIMATELY 6 YEARS AGO, AND THE NOMENCLATURE CV-1180/G WAS AN ARMY DESIGNATION OF THE STELMA COMMERCIAL MODEL NO. VPT-2.

2. THE TECHNICAL CHARACTERISTICS SPECIFIED IN THE RFP SCHEDULE WERE TAKEN DIRECTLY FROM THE STELMA COMMERCIAL MANUAL.

3. THE TECHNICAL CHARACTERISTCS WERE PREPARED FOR DESCRIPTIVE PURPOSES AND DO NOT CONSTITUTE PROPER PROCUREMENT SPECIFICATIONS.

4. TELEDATA IS NOT REQUIRED TO DELIVER EQUIPMENT WHICH WILL PERFORM THE REQUIRED FUNCTIONS.

BASED ON THE FOREGOING, IT IS YOUR POSITION THAT TO THE EXTENT THE RFP DID NOT IMPOSE UPON TELEDATA THE SAME OBLIGATIONS WHICH YOU WOULD BEAR HAD YOU RECEIVED THE AWARD, I.E., DELIVERY OF CV-1180/G EQUIPMENT, TESTING AT YOUR OWN EXPENSE, AND ASSURANCE OF PROPER PERFORMANCE OF THE EQUIPMENT, THE RFP WAS DEFECTIVE AND THE AWARD MADE THEREUNDER WAS NOT IN ACCORD WITH THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), WAS PREJUDICIAL TO THE GOVERNMENT AND TO YOU AND WAS CLEARLY NOT IN THE BEST INTEREST OF THE GOVERNMENT. ACCORDINGLY, YOU REQUEST THAT THE CONTRACT AWARDED TO TELEDATA BE RESCINDED.

IN ITS REPORT TO OUR OFFICE, THE PROCUREMENT AGENCY STATES, AS YOU CONTEND, THAT YOUR FIRM DID DEVELOP THE CONVERTER, VOICE PLUS TELEGRAPH, IN 1962. HOWEVER, IT IS ALSO POINTED OUT THAT WHILE YOUR FIRM HAD BEEN THE SOLE SUPPLIER OF THE CONVERTER, TELEGRAPH-TELEPHONE SIGNAL CV-1180/G, SEVERAL FIRMS ARE CAPABLE OF ENGINEERING AND MANUFACTURING AN EQUAL OR BETTER ITEM THAN THE STELMA VERSION OF THE CONVERTER. WE UNDERSTAND THAT THE CV-1180/G WAS ORIGINALLY PROCURED AS OFF-THE-SHELF EQUIPMENT FROM YOUR FIRM AND THAT THE GOVERNMENT DID NOT BUY DRAWINGS, MANUFACTURING SPECIFICATIONS, OR DOCUMENTATION TO COMPLETE A PROCUREMENT DATA PACKAGE. THE ITEM IS A COMMERCIAL PRODUCT WHICH YOUR FIRM OFFERS TO THE PUBLIC AS MODEL VPT-2, VOICE PLUS TELEGRAPH TERMINAL. THE DESCRIPTION AS STATED IN THE RFP DESCRIBES THE FUNCTIONS REQUIRED BY THE DEPARTMENT OF DEFENSE WORLDWIDE COMMUNICATIONS NETWORK AND THE TECHNICAL CHARACTERISTICS PROVIDE BASIC INFORMATION CONCERNING THE INTERFACE REQUIREMENTS WITH ASSOCIATED EQUIPMENT. IT IS FURTHER REPORTED THAT ANY COMMERCIAL EQUIPMENT WHICH PERFORMS THE DESCRIBED FUNCTIONS AND MEETS THE INTERFACE REQUIREMENTS OF THE TECHNICAL CHARACTERISTICS WILL BE ACCEPTABLE TO THE GOVERNMENT. UNDERSTAND THAT THE CONVERTER IS FIXED-PLANT COMMUNICATIONS EQUIPMENT TO BE INSTALLED IN PERMANENT LOCATIONS WITH NO REQUIREMENT FOR TACTICAL MILITARY RUGGEDNESS. WHILE YOU HAVE MISGIVINGS AS TO TELEDATA'S ABILITY TO FURNISH AN ACCEPTABLE END ITEM THAT WILL PERFORM THE FUNCTIONS REQUIRED BY THE PROCURING AGENCY, IT IS REPORTED THAT THE CONTRACTING OFFICER HAS BEEN ASSURED BY DCASR REPRESENTATIVES THAT TELEDATA IS A RESPONSIBLE MANUFACTURER WITH QUALIFIED ENGINEERING PERSONNEL AND ADEQUATE MANUFACTURING FACILITIES TO PRODUCE THE DESCRIBED ITEM. MOREOVER, INDUSTRY AND GOVERNMENT STANDARDS AND SPECIFICATIONS ARE AVAILABLE WHICH DELINEATE THE PARAMETERS OF THE VARIOUS PORTIONS OF THIS COMPLEX ELECTRONIC DEVICE. THEREFORE, IT IS THE VIEW OF THE CONTRACTING OFFICER, BASED ON THE ADVICE OF ENGINEERING PERSONNEL AVAILABLE TO HIM, THAT THE NARRATIVE DESCRIPTION AND TECHNICAL CHARACTERISTICS IN THE RFP GIVE ALL NECESSARY INFORMATION FOR A COMPETENT MANUFACTURER OF COMMUNICATIONS ELECTRONIC EQUIPMENT TO DESIGN, MANUFACTURE, AND TEST A CONVERTER AS IS HERE INVOLVED. WHILE MUCH OF YOUR PROTEST IS DIRECTED TO THE INADEQUACY OF THE SPECIFICATIONS DETAILED IN RFP -0006, THE CONTRACTING OFFICER OBSERVES THAT YOU MADE THIS ASSERTION ONLY AFTER YOU LEARNED THAT AWARD WOULD BE MADE TO ANOTHER FIRM. IN ANY EVENT, TELEDATA OFFERED TO FURNISH THE CONVERTERS IN ACCORDANCE WITH THE SPECIFICATIONS IN RFP -0006 WITHOUT EXCEPTION AND, THEREFORE, IS OBLIGATED UNDER ITS CONTRACT TO DELIVER AN ITEM WHICH PERFORMS THE DESCRIBED FUNCTIONS.

WHETHER THE SPECIFICATIONS ARE ADEQUATE TO PERMIT OR REQUIRE MANUFACTURE OF A PRODUCT WHICH WILL MEET THE NEEDS OF AN AGENCY IS A QUESTION WHICH IS PRIMARILY WITHIN THE JURISDICTION OF A CONTRACTING AGENCY, AND IN ANY PROCUREMENT THIS QUESTION MAY WELL BE SUBJECT TO A DIFFERENCE IN EXPERT TECHNICAL OPINION. WHERE SUCH DIFFERENCE OF OPINION EXISTS, OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING AGENCY UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY OPINION IS IN ERROR AND THAT A CONTRACT AWARDED ON THE BASIS OF SUCH SPECIFICATIONS WOULD, BY UNDULY RESTRICTING COMPETITION OR OTHERWISE, BE A VIOLATION OF LAW. COMP. GEN. 554, 557. SEE, ALSO, 40 COMP. GEN. 294, 297. WE FIND NO SUCH EVIDENCE IN THE RECORD BEFORE US.

ADDITIONALLY, IT WOULD APPEAR THAT THE PROPER TIME FOR YOU TO HAVE QUESTIONED THE ADEQUACY OR PROPRIETY OF THE SPECIFICATIONS WOULD HAVE BEEN PRIOR TO SUBMISSION OF A PROPOSAL AND, IN ANY EVENT, PRIOR TO BEING ADVISED THAT A CONTRACT HAD BEEN AWARDED. B-161642, AUGUST 17, 1967.

IN VIEW OF THE FOREGOING, AND SINCE THERE IS NO EVIDENCE THAT THE CONVERTER ADVERTISED UNDER THE RFP IS A "CHINESE COPY" OF YOUR MODEL VPT- 2, WE FIND NO BASIS TO QUESTION THE AWARD MADE UNDER RFP -0006 OR TO THE PROCESSING OF AN AWARD TO THE LOWEST QUALIFIED OFFEROR UNDER RFP 0018.