B-166816, JUL. 28, 1969

B-166816, JUL. 28, 1969

BID PROTEST - CONFORMABILITY TO SPECIFICATIONS DECISION DENYING PROTEST OF MIDWAY CO. AGAINST AWARD OF NEGOTIATED CONTRACT TO GALLOWAY CO., LOW OFFEROR, FOR FURNISHING HIGH EXPLOSIVE BOMBS AND ASSEMBLIES TO NAVY ON BASIS OF WELDING PROCESS PERMITTED UNDER TERMS OF THE REQUEST FOR PROPOSALS. SINCE TECHNICAL PERSONNEL HAVE INDICATED EITHER OF THE WELDING PROCESSES MEETS THE NEEDS OF THE GOVERNMENT AND THAT THE SPECIFICATIONS ARE ADEQUATE AND CONTRACTOR IS DETERMINED RESPONSIBLE, THERE IS NO BASIS FOR LEGAL OBJECTION TO AWARD.

TO MR. MATTHEW JAMES TRAVERS, JR.:

REFERENCE IS MADE TO YOUR LETTERS OF MAY 14 AND JULY 8, 1969, FURNISHING BRIEFS ON BEHALF OF THE MIDWAY COMPANY IN CONNECTION WITH ITS PROTEST UNDER DEPARTMENT OF THE NAVY REQUEST FOR PROPOSALS (RFP) NO. N00019-69-R- 0222.

THE RFP ISSUED ON APRIL 11, 1969, PROVIDING FOR THE PROCUREMENT OF 11,200 HTW HIGH EXPLOSIVE BOMBS, MK 115 MOD 0, EMPTY, TOGETHER WITH ASSEMBLIES, REQUESTED RECEIPT OF PROPOSALS BY APRIL 16, 1969, IN VIEW OF THE URGENCY OF THE PROCUREMENT. THE FOLLOWING TWO PROPOSALS WERE RECEIVED:

PROPONENT PRICE

GALLOWAY COMPANY $1,410,994 (BASED ON LOT

SIZE OF 100)

ALTERNATE 1,431,714 (BASED ON LOT

SIZE OF 40)

MIDWAY COMPANY 1,905,700 FOLLOWING TELEPHONIC CLARIFICATION OF THE LOT SIZE, BOTH OFFERORS RESUBMITTED PRICES BASED ON A LOT SIZE OF 400 AS FOLLOWS:

GALLOWAY $1,404,610

MIDWAY 1,905,700 ON APRIL 22, 1969, THE CONTRACTING OFFICER MADE AN AFFIRMATIVE DETERMINATION OF PROSPECTIVE CONTRACTOR RESPONSIBILITY FOR THE GALLOWAY COMPANY PREPARATORY TO MAKING AN AWARD TO THAT COMPANY.

ON APRIL 28, 1969, THE CONTRACTING OFFICER RECEIVED A LETTER DATED APRIL 24, 1969, FROM MIDWAY AMPLIFYING A PRIOR TELEGRAM. MIDWAY INVITED THE ATTENTION OF THE CONTRACTING OFFICER TO THE SUCCESS OF ITS OWN FUSION WELDING PROCESS, AND IT QUESTIONED THE USE OF THE RESISTANCE WELDING PROCESS PERMITTED UNDER THE TERMS OF THE RFP. THE CONTRACTING OFFICER IN A LETTER DATED MAY 2, 1969, REPLIED TO MIDWAY AS FOLLOWS: "THIS WILL ACKNOWLEDGE YOUR LETTER OF APRIL 24, 1969 CONCERNING SOLICITATION NO. N00019-69-R-0222 AND YOUR TELEGRAM OF APRIL 23, 1969. THE NAVAL AIR SYSTEMS COMMAND AGREES THE DATA PACKAGE FOR THE PRODUCTION OF THE MK 115 MOD 0 BOMB SPECIFIES ALTERNATE METHODS TO MANUFACTURE THE ROD BUNDLE, NAMELY THE TIG WELDED TECHNIQUE (NAVAIR DWG. NO. 2581358 SHEET 1) AND THE RESISTANCE WELDED TECHNIQUE (NAVAIR DWG. NO. 2581358 SHEET 2). BOTH TECHNIQUES HAVE BEEN QUALIFIED AND ARE ACCEPTABLE. TO INSURE THE MANUFACTURING QUALITY OF THE SUBJECT BOMB, THE FUNCTIONAL TESTS SPECIFIED IN SECTION 4.6.5 AS 1564 AND STATED IN RFP N00019-69-R-0222 ARE ESSENTIAL.'AS STATED IN ABOVE PARAGRAPH, THE ALTERNATE CONSTRUCTION DOCUMENTATION IN ITS CURRENT STATUS IS SATISFACTORY AND SUITABLE FOR THE CURRENT PRODUCTION WITH THE PROVISION THAT THE FUNCTIONAL TESTS SPECIFIED IN AS 1564 ARE PERFORMED. CONVERSELY, THIS ALSO HOLDS TRUE FOR THE TIG WELD TECHNIQUE FOR ROD BUNDLE MANUFACTURE.'ACCEPTANCE CRITERIA IN SUBJECT SOLICITATION IS ADEQUATE TO INSURE A QUALITY PRODUCT WITH EITHER WELDING TECHNIQUE.' IN A LATER MEETING WITH THE CONTRACTING OFFICER AND NAVAL AIR SYSTEMS COMMAND TECHNICAL PERSONNEL, MIDWAY PRESENTED A LETTER DATED MAY 6, 1969, WHICH RESTATED ITS POSITION ON THE WELDING PROCESS AND AGAIN QUESTIONED THE ABILITY OF GALLOWAY TO PERFORM. THESE POINTS WERE DISCUSSED IN CONSIDERABLE DETAIL WITH MIDWAY REPRESENTATIVES. THEY WERE INFORMED THAT A DETERMINATION OF URGENCY HAD BEEN MADE PURSUANT TO PARAGRAPH 2-407.9 (B) (3) OF THE ARMED SERVICES PROCUREMENT REGULATION AND THAT AN AWARD WOULD BE MADE TO GALLOWAY DESPITE THE PENDENCY OF A PROTEST. HOWEVER, AWARD HAD BEEN HELD UP SO THAT MIDWAY COULD PRESENT ITS VIEWS, BOTH VERBALLY AND IN WRITING, TO THE CONTRACTING OFFICER. WE ARE ADVISED THAT IN VIEW OF THE URGENCY OF THE PROCUREMENT, A CONTRACT WAS AWARDED TO GALLOWAY ON MAY 13, 1969.

THE ADMINISTRATIVE REPORT IN THE MATTER, A COPY OF WHICH HAS BEEN FURNISHED TO YOU, ANSWERS MIDWAY'S BASIC CONTENTIONS. WHILE MIDWAY HAS STATED THAT "PERFORMANCE DIFFERENTIAL MUST BE A MAJOR FACTOR IN EVALUATION OF PROPOSALS," IT IS POINTED OUT THAT THE RFP CONTAINED NO REFERENCE TO A TECHNICAL EVALUATION OF PROPOSALS, BUT RATHER PROVIDED THAT AWARD WAS TO BE MADE ON THE BASIS OF PRICE. FURTHER, THE REPORT STATED THAT SO LONG AS ACCEPTANCE TESTS WERE PASSED, EITHER CONTRACTOR WOULD MEET THE MINIMUM NEEDS OF THE GOVERNMENT. WE UNDERSTAND THE LATTER STATEMENT TO CONTEMPLATE THE UTILIZATION OF ONE OF THE ALTERNATE WELDING PROCEDURES IN THE PRODUCTION OF THE BOMB.

YOUR BRIEF SUBMITTED BY LETTER OF MAY 14, 1969, CONTAINS THE STATEMENT THAT "THE MIDWAY COMPANY WAS NOT ABLE TO CONSIDER MAKING AN OFFER BASED UPON THE MANUFACTURE OF THE -ROD, BUNDLE- IN ACCORDANCE WITH SHEET 2, OF DRAWING NO. 2581358 BECAUSE SHEET 2 WAS INADEQUATE AND DEFICIENT.' IN THE BRIEF OF JULY 8 YOU CONTEND THAT SHEET 2 OF DRAWING NO. 2581358 SHOULD BE INVALIDATED BECAUSE THE ADMINISTRATIVE REPORT STATES THAT "IN FUTURE PROCUREMENTS OF THE MK 115 0 BOMB, A REVISED DRAWING WILL BE USED WHICH WILL PROVIDE A CLEARER PRESENTATION OF THE ALTERNATE METHODS OF PRODUCING THE BOMB.'

WHILE THE DEPARTMENT OF THE NAVY HAS STATED THAT THE DRAWING WOULD BE IMPROVED BY PROVIDING IN THE FUTURE A CLEARER PRESENTATION OF THE ALTERNATE METHODS OF PRODUCING THE BOMB, IT HAS INDICATED ALSO THAT THE DRAWING WAS ADEQUATE SO THAT AN EXPERIENCED CONTRACTOR COULD PRODUCE A BOMB THAT COULD PASS ACCEPTANCE TESTS. IN THAT CONNECTION, IT IS POINTED OUT THAT THE FINAL ACCEPTANCE IS BASED UPON THE FUNCTIONAL TESTS IN PERFORMANCE SPECIFICATION AS1564.

IT IS THE LONG-STANDING POSITION OF THIS OFFICE THAT THE ESTABLISHMENT OF SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE DEPARTMENT OR AGENCY ON WHOSE BEHALF THE PROCUREMENT IS MADE. 17 COMP. GEN. 554, 557. IN ANY GIVEN PROCUREMENT THE QUESTION WHETHER SPECIFICATIONS ARE ADEQUATE TO MEET THE NEEDS OF A DEPARTMENT OR AGENCY MAY WELL BE SUBJECT TO A DIFFERENCE OF EXPERT TECHNICAL OPINION. WHERE SUCH DIFFERENCES OF OPINION EXIST, IT IS NOT GENERALLY THE PRACTICE OF THIS OFFICE TO SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING AGENCY. IN THE CIRCUMSTANCES, SINCE NAVY TECHNICAL PERSONNEL HAVE INDICATED THAT EITHER OF THE ALTERNATE WELDING PROCESSES MEETS THE NEEDS OF THE GOVERNMENT AND THAT THE SPECIFICATIONS ARE ADEQUATE FOR THE PRODUCTION OF THE BOMB AND THE CONTRACTOR HAS BEEN DETERMINED TO BE RESPONSIBLE, WE FIND NO BASIS FOR LEGAL OBJECTION TO THE AWARD MADE TO THE GALLOWAY COMPANY.

ALTHOUGH MIDWAY'S FULFILLMENT OF PRIOR CONTRACTS FOR THE ITEM WAS EFFECTED BY USE OF THE FUSION WELDING PROCESS, THIS PROCEDURE WAS NOT MANDATORY UNDER THE CURRENT RFP AND AN ADMINISTRATIVE DETERMINATION TO REQUEST PROPOSALS PROVIDING FOR AN ALTERNATE WELDING PROCESS DOES NOT AFFORD A BASIS FOR OBJECTION BY THIS OFFICE. 37 COMP. GEN. 368.