B-167237, SEP 15, 1969

B-167237: Sep 15, 1969

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A DETERMINATION TO PROCURE A PARTICULAR MICROPHONE MANUFACTURED PURSUANT TO MILITARY STANDARDS WHICH WAS BASED ON THE NECESSITY OF MAINTAINING THE REQUIRED STOCK POSITION REFLECTED THE NEEDS OF THE GOVERNMENT AND IN ABSENCE OF EVIDENCE THAT EQUIPMENT WAS DEFECTIVE OR THAT USING AGENCIES WERE DISSATISFIED SUCH DETERMINATION WILL NOT BE DISTURBED. INC.: REFERENCE IS MADE TO YOUR LETTER OF JUNE 11. IS AVAILABLE. THESE M-80(A)/GR MICROPHONES WERE REQUIRED TO BE DELIVERED AT THE OPTION OF DESC TO SEVERAL SHIPPING DESTINATIONS SPECIFIED UNDER SECTION 23. THREE BIDS WERE OPENED AND THE APPARENT LOW BIDDER WAS ADEC. AWARD WAS MADE TO ADEC. YOUR PROTEST QUESTIONS DESC'S DECISION TO PROCURE THE M-80(A)/GR MICROPHONE ON THE GROUND THAT THE MATERIALLY IMPROVED M-80C/U MICROPHONE IS AVAILABLE.

B-167237, SEP 15, 1969

BID PROTEST - SPECIFICATION CONFORMITY DECISION DENYING PROTEST OF ELECTRO-VOICE, INC. ANGAINST AWARD OF CONTRACT TO ADEC, INC., FOR MICROPHONES FOR DEFENSE ELECTRONICS SUPPLY CENTER ON BASIS THAT SUCCESSFUL AWARDEE'S EQUIPMENT DOES NOT MEET SPECIFICATIONS. A DETERMINATION TO PROCURE A PARTICULAR MICROPHONE MANUFACTURED PURSUANT TO MILITARY STANDARDS WHICH WAS BASED ON THE NECESSITY OF MAINTAINING THE REQUIRED STOCK POSITION REFLECTED THE NEEDS OF THE GOVERNMENT AND IN ABSENCE OF EVIDENCE THAT EQUIPMENT WAS DEFECTIVE OR THAT USING AGENCIES WERE DISSATISFIED SUCH DETERMINATION WILL NOT BE DISTURBED. THEREFORE PROTEST BY FIRM THAT DID NOT SUBMIT BID MUST BE DENIED.

ELECTRO-VOICE, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 11, 1969, WITH ENCLOSURES, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ADEC, INC., UNDER INVITATION FOR BIDS (IFB) DSA900-69-B-3562, ISSUED BY THE DEFENSE ELECTRONICS SUPPLY CENTER (DESC) FOR 739 UNITS OF DYNAMIC MICROPHONES, TYPE M-80(A)/GR.

YOU ALSO PROTEST THE PROCUREMENT OF THE M-80(A)/GR MICROPHONE IN VIEW OF THE FACT THAT A BETTER MODEL, THE REDESIGNED M-80C/U, IS AVAILABLE.

THE INVITATION, DATED MARCH 27, 1969, SOLICITED BIDS UNDER ITEM 1 ON VARIOUS INCREMENTAL QUANTITIES OF MICROPHONES TO BE PRODUCED IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-E-55119A, (EL), DATED SEPTEMBER 18, 1963, AS AMENDED BY SIGNAL CORPS DRAWING NO. SC-DL 436250. THESE M-80(A)/GR MICROPHONES WERE REQUIRED TO BE DELIVERED AT THE OPTION OF DESC TO SEVERAL SHIPPING DESTINATIONS SPECIFIED UNDER SECTION 23, SHIPPING INSTRUCTIONS. ON THE BID OPENING DATE OF APRIL 17, 1969, THREE BIDS WERE OPENED AND THE APPARENT LOW BIDDER WAS ADEC, INC. ADEC QUOTED FROM A HIGH OF $16.50 PER UNIT OF M-80(A)/GR MICROPHONE FOR THE INCREMENTAL QUANTITY OF 400-500 UNITS, INCLUSIVE, TO A LOW OF $16.20 PER UNIT FOR QUANTITIES OF 3,001 AND UP. AWARD WAS MADE TO ADEC, INC., ON JUNE 4, 1969, FOR 739 UNITS OF M- 80(A)/GR IN THE AMOUNT OF $12,045.70. YOU DID NOT SUBMIT A BID ON THIS PROCUREMENT.

YOUR PROTEST QUESTIONS DESC'S DECISION TO PROCURE THE M-80(A)/GR MICROPHONE ON THE GROUND THAT THE MATERIALLY IMPROVED M-80C/U MICROPHONE IS AVAILABLE. YOU ALSO QUESTION THE DETERMINATION THAT ADEC INC., THE AWARDEE OF M-80(A)/GR MICROPHONES, CAN MEET THE SPECIFICATION MIL-E- 55119AEL) CITED IN THE SUBJECT INVITATION. YOUR LETTER OF JUNE 11, 1969, ENCLOSES SEVERAL COMMUNICATIONS ADDRESSED TO THE ARMY ELECTRONICS COMMAND (AEC), DESC AND THE DEPARTMENT OF THE NAVY, WHEREIN YOU ATTEMPTED TO PROVE THAT THE M-80(A)/GR MICROPHONES ARE DEFECTIVE AND THE M-80C/U, SHOULD BE SUBSTITUTED THEREFOR.

THE RECORD DISCLOSES THAT FOR SOME YEARS ALL THREE MILITARY SERVICES PROCURED THE STANDARD M-80/U MICROPHONES (I.E., M-80(A)/GR), UNTIL UNDER ONE SUCH PROCUREMENT BY THE ARMY, ELECTRO-VOICE CONVINCED AEC TO SWITCH TO THE ALLEGEDLY IMPROVED M-80C/U MICROPHONE. THIS OCCURRED WHEN AEC AWARDED ELECTRO-VOICE CONTRACT NO. DAAB05-68-C-2001, FOR FURNISHING M-80/U MICROPHONES TO BE MANUFACTURED ACCORDING TO MIL-E 55119AEL) SPECIFICATIONS. BY LETTERS OF FEBRUARY 17 AND AUGUST 15, 1967, YOU INFORMED AEC THAT THE STUDY OF MIL-E-55119AEL) SPECIFICATIONS AND THE TEST OF EXISTING M-80/U MICROPHONES DISCLOSED A LIMITED NOISE CANCELLATION CAPACITY. YOU PROPOSED TO IMPROVE THE NOISE CANCELLATION CAPACITY FROM 15DB TO 17 1/2DB BY CHANGING, AMONG OTHER THINGS, THE HEAD DESIGN OF THE M -80/U MICROPHONES AND INCORPORATING CERTAIN FEATURES OF THE M-116 MICROPHONES. THE CHANGES PROPOSED WERE APPROVED BY THE AEC AND IT DIRECTED THAT THEY BE USED IN ALL ARMY PROCUREMENTS. THE REDESIGNED MICROPHONES WERE ASSIGNED THE NOMENCLATURE SUFFIX LETTER ASSIGNMENT "C" I.E., MICROPHONE M-80C/U.

IT APPEARS THAT PRIOR TO THE DIRECTIVE OF AEC, CONCERNING THE PROCUREMENT OF M-80C/U MICROPHONES FOR ARMY USE, THE NAVY AND THE AIR FORCE TRANSFERRED MANAGEMENT OF THE M-80(A)/CR MICROPHONES TO DESC. THAT AGENCY WAS EXPECTED TO KEEP A MINIMUM STOCK SUPPLY OF M-80 (AGR FOR NAVY AND AIR FORCE USE. HOWEVER, YOU APPARENTLY ASSUMED THAT AEC'S ACCEPTANCE OF M- 80C/U MICROPHONES REQUIRED THE OBSOLESCENCE OF M 80(A)/GR AND PROTESTED ANY FURTHER PROCUREMENT OF M-80(A)/GR MICROPHONES. FOR EXAMPLE, BY LETTERS OF MARCH 19, AND APRIL 14, 1969, ADDRESSED TO DESC, YOU DISCUSSED THE CANCELLATION OF IFB NO. DSA900-69 B-3634, ISSUED FOR THE PROCUREMENT OF M-80(A)/CR MICROPHONES. YOU OBJECTED TO THE PROCUREMENT OF THIS ALLEGEDLY OBSOLETE MICROPHONE WHICH YOU CONTEND DOES NOT MEET MIL- E55119AEL) SPECIFICATIONS. BY LETTER OF APRIL 1, 1969, THE CONTRACTING OFFICER REPLIED THAT THE IFB WAS CANCELLED, DUE TO URGENCY AND ERRONEOUS NOMENCLATURE CITED THEREIN, AND THE CONTRACT WAS NEGOTIATED WITH TELEPHONICS. YOU WERE ALSO ADVISED THAT DATA SUBMITTED ON THE M-80(A)/GR MICROPHONE WAS EXAMINED BY A DESC TECHNICIAN AND FOUND TO MEET THE APPLICABLE SPECIFICATIONS. IT WAS FURTHER STATED THAT M-80C/U WAS MANAGED BY THE ARMY ONLY AND DESC DID NOT HAVE DRAWING, PART NUMBER OR ENGINEERING SPECIFICATIONS FOR ELECTRO VOICE TO CONFIRM THAT YOUR REDESIGNED M-80C/U CAN IN FACT MEET MIL-E 55119AEL) SPECIFICATIONS.

IT WAS FURTHER REPORTED THAT AEC, IN A LETTER DATED APRIL 4, 1969, INFORMED DESC THAT THE REDESIGNED M-80/U MICROPHONES BY ELECTROVOICE PROVIDED A SIGNIFICANT IMPOVEMENT IN NOISE CANCELLATION CAPACITY AND REQUESTED DESC TO PURCHASE THIS NEW MICROPHONE AS A STANDARD ITEM FOR ALL THE MILITARY SERVICES.

IN RESPONSE TO THE AEC'S RECOMMENDATION TO STANDARDIZE M-80C/U MICROPHONES, DESC DEPUTY DIRECTOR OF PROCUREMENT REQUESTED THE VIEWS OF THE DIRECTOR OF ENGINEERING STANDARDIZATION ON THIS MATTER. THE DIRECTOR RECOMMENDED PROCUREMENT OF M-80(A)/GR MICROPHONES UNTIL THE SERVICES COORDINATE ON THE REPLACEMENT OF M-80(A)/GR BY M-80C/U. DESC STATES WITH RESPECT TO THE PROTESTED PROCUREMENT THAT IT WAS REQUIRED TO PROCURE M- 80(A)/GR MICROPHONES AND AWARD THE CONTRACT ON JUNE 4, 1969, BECAUSE IT HAD TO CONTINUE TO PURCHASE THE M-80(A)/GR MICROPHONES IN ORDER TO MAINTAIN A MINIMUM SUPPLY STATUS FOR THE AIR FORCE AND THE NAVY.

THE QUESTION OF WHICH VERSION OF MICROPHONE WILL BEST FULFILL THE NEEDS OF ANY AGENCY OF THE GOVERNMENT MUST OF NECESSITY BE DETERMINED BY THE AGENCY CONCERNED, AND SUCH ADMINISTRATIVE DETERMINATIONS, ESPECIALLY THOSE INVOLVING JUDGMENTS OF A TECHNICAL AND SCIENTIFIC NATURE, 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 EVIDENCE. SEE B -161490, SEPTEMBER 19, 1967. HERE, THE DETERMINATION TO PROCURE M- 80(A)/GR MICROPHONES MANUFACTURED PURSUANT TO MIL-E-55119AEL) WAS BASED UPON THE NECESSITY OF MAINTAINING THE REQUIRED STOCK POSITION FOR THE NAVY AND THE AIR FORCE, AND THUS REFLECTED ACTUAL NEEDS OF THE GOVERNMENT. MOREOVER, NO EVIDENCE HAS BEEN PRESENTED TO ESTABLISH THAT THE M-80(A)/GR MICROPHONES WERE DEFECTIVE OR THAT THE AIR FORCE AND NAVY WERE DISSATISFIED WITH THEM. WE HAVE CONSISTENTLY HELD THAT THE PREPARATION AND ESTABLISHMENT OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT AND THE DETERMINATION OF WHETHER PRODUCTS OFFERED MEET THE SPECIFICATIONS ESTABLISHED ARE A MATTER PRIMARILY WITHIN THE JURISDICTION OF THE PROCUREMENT AGENCY. SEE 38 COMP. GEN. 190; 37 ID. 727; 17 ID. 554.

THE PRE-AWARD SURVEY ON ADEC, INC., ESTABLISHED THAT FIRM AS RESPONSIBLE AND CAPABLE OF PRODUCING THE M-80(A)/GR MICROPHONES. ADDITIONALLY, THE M- 80(A)/GR IS A COMPETITIVE ITEM WITH AT LEAST THREE CONTRACTORS, ADEC, ISCI TELEPHONICS AND ROANWELL CORP., WHO BID ON THE SUBJECT IFB, WHILE THE M- 80C/U, ACCORDING TO DESC, IS A SOLE SOURCE ITEM.

BY THE PROVISIONS OF 10 U.S.C. 145 THE SECRETARY OF DEFENSE IS DIRECTED TO REDUCE TO THE HIGHEST DEGREE PRACTICABLE THE NUMBER OF SIZES AND KINDS OF ITEMS THAT ARE SIMILAR. SEE ALSO DEFENSE STANDARDIZATION MANUAL 4120.3 -M. THE ESTABLISHMENT OF THE DSA AS THE ORGANIZATION TO CENTRALLY CONTROL AND DIRECT CERTAIN SUPPLY FUNCTIONS FOR ALL THE MILITARY SERVICES WAS INTENDED TO FURTHER THIS PURPOSE. HOWEVER, PRIOR TO STANDARDIZATION AND MANAGEMENT OF A NEW ITEM BY THE DSA, THE COORDINATION OF ALL THE USING SERVICES IS REQUIRED. WHILE YOUR CONTENTION THAT THE M-80C/U MICROPHONE IS A TECHNICALLY BETTER ITEM THAN THE M-80(A)/GR MAY BE JUSTIFIED, COMPLIANCE WITH THE PRESCRIBED STANDARDIZATION PROCEDURES IS A PREREQUISITE TO ITS ADOPTION AS A REQUIRED ITEM FOR ALL THE SERVICES. THIS REGARD, THE DSA ADVISES THAT THE INFORMATION CONCERNING THE M-80C/U MICROPHONES FURNISHED BY THE AEC HAS BEEN FORWARDED TO THE AIR FORCE AND THE NAVY TO SUPPORT REPLACEMENT OF THE M-80(A)/GR MICROPHONES, AND IF THE CONCURRENCE OF THE NAVY AND THE AIR FORCE IS OBTAINED, THE ARMY WILL BE ASKED TO TRANSFER THE MANAGEMENT OF THIS ITEM TO DSA TO EFFECT CONSOLIDATION OF PROCUREMENT FOR THE THREE SERVICES INVOLVED.

FOR THE FOREGOING REASONS, YOUR PROTEST IS DENIED.