B-167569, SEP 9, 1969

B-167569: Sep 9, 1969

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

PROTESTANT WHO WAS ADVISED THAT TWO DEVIATIONS OF EQUIPMENT FROM SPECIFICATIONS WERE NOT SUBSTANTIAL AND COULD BE WAIVED MAY NOT HAVE ALLEGATION THAT SPECIFICATIONS WERE RESTRICTIVE UPHELD. TO ANTENNA PRODUCTS COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 23. AUTHORIZING THE NEGOTIATION OF CONTRACTS WHEN IT IS IMPRACTICABLE TO SECURE COMPETITION BECAUSE OF THE ABSENCE OF DEFINITIVE SPECIFICATIONS. THE CLOSING DATE FOR RECEIPT OF OFFERS WAS JUNE 24. WAS RECEIVED FROM THE HY-GAIN ELECTRONICS CORPORATION. YOUR FIRM PROTESTED TO THE CONTRACTING OFFICE THAT THE SPECIFICATIONS SET FORTH IN THE SUBJECT RFP INDICATED THAT THEY WERE WRITTEN TO "HY-GAIN'S SPECIFICATIONS FOR THEIR MODEL LP1001" AND THAT SUCH SPECIFICATIONS AS WRITTEN PROHIBITED SUBMITTAL OF A RESPONSE ON THE PART OF YOUR FIRM.

B-167569, SEP 9, 1969

BID PROTEST - RESTRICTIVE SPECIFICATIONS DECISION TO ANTENNA PRODUCTS CO. DENYING PROTEST AGAINST RESTRICTIVE SPECIFICATIONS IN PROCUREMENT OF ANTENNA SYSTEMS FOR UNITED STATES INFORMATION AGENCY. PROTESTANT WHO WAS ADVISED THAT TWO DEVIATIONS OF EQUIPMENT FROM SPECIFICATIONS WERE NOT SUBSTANTIAL AND COULD BE WAIVED MAY NOT HAVE ALLEGATION THAT SPECIFICATIONS WERE RESTRICTIVE UPHELD.

TO ANTENNA PRODUCTS COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 23, 1969, WITH ENCLOSURES, PROTESTING THE ALLEGEDLY RESTRICTIVE SPECIFICATIONS FOR EQUIPMENT CONTAINED IN REQUEST FOR PROPOSALS (RFP) NO. 289-23-9, ISSUED BY THE UNITED STATES INFORMATION AGENCY, WASHINGTON, D.C.

THE RFP, ISSUED ON JUNE 2, 1969, SOLICITED OFFERS FOR FURNISHING TWO ROTATABLE LOG PERIODIC ANTENNA SYSTEMS, PURSUANT TO SECTION 1 3.210(A)(13) OF THE FEDERAL PROCUREMENT REGULATIONS, AUTHORIZING THE NEGOTIATION OF CONTRACTS WHEN IT IS IMPRACTICABLE TO SECURE COMPETITION BECAUSE OF THE ABSENCE OF DEFINITIVE SPECIFICATIONS. THE CLOSING DATE FOR RECEIPT OF OFFERS WAS JUNE 24, 1969. ONLY ONE OFFER DATED JUNE 20, 1969, WAS RECEIVED FROM THE HY-GAIN ELECTRONICS CORPORATION.

BY TELEGRAM DATED JUNE 24, 1969, YOUR FIRM PROTESTED TO THE CONTRACTING OFFICE THAT THE SPECIFICATIONS SET FORTH IN THE SUBJECT RFP INDICATED THAT THEY WERE WRITTEN TO "HY-GAIN'S SPECIFICATIONS FOR THEIR MODEL LP1001" AND THAT SUCH SPECIFICATIONS AS WRITTEN PROHIBITED SUBMITTAL OF A RESPONSE ON THE PART OF YOUR FIRM. IT IS REPORTED THAT AFTER RECEIVING YOUR PROTEST, THE CONTRACTING OFFICER COMPARED THE PERFORMANCE SPECIFICATIONS CONTAINED IN THE RFP WITH THOSE COVERING YOUR FIRM'S EQUIPMENT; THAT HE DETERMINED THAT THE EQUIPMENT OF YOUR FIRM APPARENTLY FAILED TO MEET ONLY TWO OF THE AGENCY'S SPECIFICATIONS, NAMELY, THOSE WITH RESPECT TO THE EQUIPMENT'S GAIN AND MAXIMUM WIND LOADING; AND THAT HE ALSO DETERMINED THAT THESE TWO DEVIATIONS WERE NOT SUBSTANTIAL AND COULD BE WAIVED.

IN A TELEPHONE CONVERSATION ON JUNE 27, 1969, THE CONTRACTING OFFICER ADVISED MR. JACK C. DAVIS OF YOUR FIRM OF THE ABOVE DETERMINATIONS WITH RESPECT TO YOUR EQUIPMENT AND ASKED IN WHAT OTHER RESPECTS MR. DAVIS FELT THAT THE RFP WAS RESTRICTIVE. MR. DAVIS STATED THAT THE AGENCY'S SPECIFICATIONS WERE TOO BROAD IN THAT THEY WOULD PERMIT BOTH A HIGH PERFORMANCE ANTENNA SYSTEM LIKE YOUR FIRM'S AND A MEDIUM PERFORMANCE ANTENNA SYSTEM LIKE HY-GAIN'S. MR. DAVIS SUGGESTED THAT THE AGENCY'S SPECIFICATIONS BE REVISED TO PROVIDE AN ADDITIONAL CRITERION CALLING FOR A MINIMUM FRONT-TO-BACK RATIO OF 15 DB, WHICH YOUR FIRM'S SYSTEM PROVIDED.

THE RECORD INDICATES THAT THE ABOVE SUGGESTION OF MR. DAVIS WAS REFERRED TO THE CHIEF OF THE TECHNICAL DIVISION WHO THEREAFTER DETERMINED THAT THE AGENCY'S REQUIREMENTS DID NOT NECESSITATE THE MINIMUM CRITERION PROPOSED BY MR. DAVIS, AND THAT THE SPECIFICATIONS SHOULD NOT BE REVISED TO INCLUDE SUCH MINIMUM FRONT-TO-BACK RATIO. AFTER BEING ADVISED OF THE DETERMINATION OF THE CHIEF OF THE TECHNICAL DIVISION BY TELEPHONE, MR. DAVIS INFORMED THE CONTRACTING OFFICER THAT HIS COMPANY COULD NOT SUBMIT A COMPETITIVE PROPOSAL COVERING YOUR FIRM'S MORE EXPENSIVE EQUIPMENT AND, THEREFORE, WOULD NOT SUBMIT A PROPOSAL. BY TELEGRAM DATED JULY 1, 1969, THE CONTRACTING OFFICER ADVISED YOUR FIRM THAT THE SPECIFICATIONS CONTAINED IN THE RFP "DO SATISFACTORILY MEET THE AGENCY'S REQUIREMENTS AND SHOULD NOT BE REVISED." ON JULY 8, 1969, CONTRACT NO. IA-14110-23 WAS AWARDED TO HY GAIN FOR THE EQUIPMENT IN QUESTION.

IN A LETTER DATED JULY 22, 1969, YOU CONTEND THAT SINCE THE AGENCY'S SPECIFICATIONS, AS WRITTEN, DO NOT CONTAIN A REQUIREMENT FOR A MINIMUM REQUIRED FRONT-TO-BACK RATIO OF 15 DB, THE SPECIFICATIONS DO NOT REFLECT THE TRUE NEEDS OF THE AGENCY.

THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND FOR DETERMINING FACTUALLY WHETHER ARTICLES OFFERED BY INTERESTED OFFERORS MEET THOSE SPECIFICATIONS IS PRIMARILY FOR ADMINISTRATIVE AGENCIES. 17 COMP. GEN. 554; 40 ID. 294, 297. WHILE IT IS THE DUTY OF OUR OFFICE TO DETERMINE WHETHER SPECIFICATIONS AS WRITTEN ARE UNDULY RESTRICTIVE OF COMPETITION, THE FACT THAT A PARTICULAR COMPANY MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEEDS IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. 30 COMP. GEN. 368; 33 ID. 586. THERE IS NO REQUIREMENT THAT THE GOVERNMENT PURCHASE ANY ARTICLE WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING OFFERORS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF ARTICLES WHICH, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, EXCEED THE AGENCY'S NEED.

THE RECORD BEFORE OUR OFFICE IS NOT INDICATIVE THAT THE SPECIFICATIONS WERE DRAFTED TO PRECLUDE YOUR COMPANY FROM COMPETING FOR THE GOVERNMENT BUSINESS. CONVERSELY, THE RECORD INDICATES THAT THE CONTRACTING OFFICER ADVISED MR. DAVIS OF YOUR FIRM BY TELEPHONE THAT THE EQUIPMENT OF YOUR FIRM FAILED TO MEET ONLY TWO OF THE AGENCY'S SPECIFICATIONS, NAMELY, THOSE WITH RESPECT TO THE EQUIPMENT'S GAIN AND MAXIMUM WIND LOADING. MR. DAVIS WAS ALSO ADVISED THAT THESE TWO DEVIATIONS WERE NOT SUBSTANTIAL AND COULD BE WAIVED. IT IS OUR OPINION, THEREFORE, THAT THE SPECIFICATIONS DO NOT CONTAIN REQUIREMENTS WHICH FORECLOSED YOUR COMPANY FROM FREELY COMPETING FOR THE GOVERNMENT BUSINESS. FURTHERMORE, IT APPEARS THAT HY-GAIN OFFERED ITS MODEL NO. 5002 ROTATABLE LOG PERIODIC ANTENNA IN COMPLIANCE WITH THE SPECIFICATIONS RATHER THAN ITS MODEL LP1001 WHICH, YOU MAINTAIN, WAS THE BASIS OF THE SPECIFICATIONS.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.