B-166031, MAY 8, 1969

B-166031, MAY 8, 1969

TO GRANGER ASSOCIATES:

REFERENCE IS MADE TO YOUR TELEGRAM OF JANUARY 24, 1969, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER OFFEROR UNDER REQUEST FOR PROPOSALS (RFP) NO. N00228-69-R-0808, ISSUED BY THE NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA.

THE ABOVE RFP WAS ISSUED PURSUANT TO THE NEGOTIATION AUTHORITY OF 10 U.S.C. 2304 (A) (2), AS A RESULT OF THREE PRIORITY 05 REQUESTS RECEIVED FROM SHIP REPAIR FACILITY, SUBIC BAY, PHILIPPINE ISLANDS, FOR THREE ITEMS OF OMNI-DIRECTIONAL ANTENNAS OF VARIOUS RANGE AND RATING. SALIENT CHARACTERISTICS WERE LISTED FOR EACH ITEM AND PROPOSALS WERE REQUESTED ON THE BASIS OF BRAND NAME OR EQUAL TO SPECIFIED MODELS MANUFACTURED BY GRANGER ASSOCIATES.

PROPOSALS WERE OPENED ON JANUARY 3, 1969, AND OFFERS WERE RECEIVED FROM THREE OF THE SEVEN SOURCES SOLICITED. ON ITEM 1 TWO OFFERORS QUOTED $2,300, AGAINST YOUR PRICE OF $3,080; ON ITEM 2 PRICES OF $1,600 AND $2,000 WERE OFFERED, AGAINST YOUR $2,480; AND ON ITEM 3 YOUR QUOTATION OF $6,420 WAS BETTERED BY OFFERS OF $5,100 AND $5,200. IT IS YOUR CONTENTION THAT NO OTHER PRODUCT IS EQUAL TO THE GRANGER ASSOCIATES MODELS SPECIFIED.

AS A RESULT OF YOUR PROTEST ALL PROPOSALS WERE REFERRED TO THE SHIP REPAIR FACILITY AT SUBIC BAY, THE USING ACTIVITY, FOR REVIEW AND TECHNICAL RECOMMENDATION. THAT ACTIVITY RECOMMENDED THAT ITEMS 1 AND 2 BE PROCURED FROM T.C.I. THE SECOND LOWEST PROPOSER AND ITEM 3 FROM YOU. THE CONTRACTING OFFICER, HOWEVER, WAS NOT SATISFIED THAT THE REASONS FURNISHED IN SUPPORT OF THOSE RECOMMENDATIONS WERE ADEQUATE JUSTIFICATION FOR REJECTION OF THE LOWER OFFERS, AND REQUESTED TECHNICAL ASSISTANCE FROM THE LOCAL SHORE ELECTRONICS ORGANIZATION, WESTERN DIVISION OF NAVAL ELECTRONICS SYSTEMS COMMAND (WEST NAVELEX), VALLEGJO, CALIFORNIA. WEST NAVELEX DETERMINED THAT ALL OF THE OFFERS MET THE STATED REQUIREMENTS OF THE SPECIFICATIONS, EXCEPT FOR A FAILURE IN ONE INSTANCE TO FURNISH CERTAIN INFORMATION, OF A MINOR NATURE, CONCERNING THE ELEVATION PATTERN (VERTICAL RADIATION PATTERN), WHICH WAS CURED BY THE OFFEROR'S FURNISHING OF ADDITIONAL INFORMATION. THIS INFORMATION AND A COPY OF WEST NAVELEX'S DETERMINATION WERE FORWARDED BY THE NAVAL SUPPLY CENTER TO THE USING ACTIVITY, WITH A LETTER EXPLAINING THAT THE REASONS GIVEN BY THE USING ACTIVITY FOR REJECTION OF THE LOW OFFERS WERE NOT ACCEPTABLE, SINCE THEY WERE NOT BASED ON A DETERMINATION THAT THE PRODUCTS WERE, IN FACT, NOT THE EQUAL OF THE NAMED PRODUCT IN THE CHARACTERISTICS STATED IN THE RFP, AND DID NOT MEET THE ACTUAL NEEDS OF THE GOVERNMENT. THE USING ACTIVITY, IN ITS REPLY, STATED THAT BASED ON THE ADDITIONAL INFORMATION THE LOW OFFERS WERE DETERMINED TO BE ACCEPTABLE. BASED ON THE FOREGOING, THE CONTRACTING OFFICER DETERMINED THAT THE PROPOSALS SUBMITTED BY THE LOW OFFERORS COMPLIED WITH THE RESPECTIVE PHYSICAL AND PERFORMANCE CHARACTERISTICS SPECIFIED IN THE SOLICITATION AND MET THE NEEDS OF THE GOVERNMENT, AND PROPOSES TO MAKE AWARDS THEREON.

THIS OFFICE HAS CONSISTENTLY HELD THAT WHETHER A PRODUCT OFFERED COMPLIES WITH THE SPECIFICATIONS IS PRIMARILY A MATTER FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY CONCERNED, 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 THE PROPOSALS SUBMITTED BY THE LOW OFFERORS COMPLIED WITH THE SPECIFICATIONS AND MET THE NEEDS OF THE GOVERNMENT, IS ARBITRARY, CAPRICIOUS, OR IN BAD FAITH OR WITHOUT SUBSTANTIAL GROUNDS. CONSEQUENTLY, OUR OFFICE CANNOT PROPERLY QUESTION THIS DETERMINATION. SEE 38 COMP. GEN. 71; ID. 190; 36 COMP. GEN. 251, 252. B-165871, MARCH 13, 1969; B-165050, NOVEMBER 21, 1968; B-161490, SEPTEMBER 19, 1967; B 152996, APRIL 8, 1964.

IN THE PRESENT CASE THERE IS EVIDENCE OF A DIFFERENCE OF EXPERT TECHNICAL OPINION, AMONG NAVY TECHNICAL PERSONNEL, AS TO WHICH PRODUCT WOULD BE THE MOST SUITABLE. HOWEVER, NOWHERE IS IT SUGGESTED THAT THE PRODUCTS OF EITHER LOWER OFFEROR ARE NOT EQUAL TO THE SPECIFIED GRANGER ASSOCIATES PRODUCTS OR THAT THE PRODUCTS DO NOT MEET THE NEEDS OF THE GOVERNMENT. HAVE HELD THAT A "BRAND NAME OR EQUAL" SPECIFICATION DOES NOT REQUIRE THAT ARTICLES OFFERED AS EQUAL MUST BE IDENTICAL TO THE BRAND NAME ARTICLE, BUT ONLY THAT THEY HAVE THE SALIENT CHARACTERISTICS STATED IN THE INVITATION AND BE EQUALLY CAPABLE OF MEETING THE NEEDS STATED. SEE 38 COMP. GEN. 59.

FOR THE ABOVE REASONS, WE MUST CONCLUDE THAT THERE IS NO ADEQUATE LEGAL BASIS UPON WHICH WE MAY OBJECT TO AWARDS AS PROPOSED BY THE CONTRACTING OFFICER, AND YOUR PROTEST IS THEREFORE DENIED.