B-169868, SEP. 17, 1970

B-169868: Sep 17, 1970

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AWARD TO BIDDER WHO WAS LOW ON ITEM AS WELL AS ALL-OR-NONE BASIS. DESTINATION WAS PROPERLY AWARDED CONTRACT AND FACT THAT PROTESTANT WOULD HAVE BEEN LOW ON PARTIAL AWARD BEFORE IFB WAS AMENDED TO SPECIFY "ALL-OR-NONE" AWARD DOES NOT REQUIRE OBJECTION TO THE AWARD. INC.: REFERENCE IS MADE TO YOUR LETTER OF APRIL 29. A COPY OF WHICH WAS FORWARDED HERE FOR CONSIDERATION BY THIS OFFICE BY LETTER DATED MAY 13. DSA 700-70-B-1976 WAS ISSUED ON FEBRUARY 16. THE PURCHASE DESCRIPTION FOR THE COMPACTORS WHICH WAS ATTACHED TO THE IFB WAS OF THE PERFORMANCE TYPE WHICH PLACED THE RESPONSIBILITY ON THE MANUFACTURER TO FURNISH A COMPACTOR WHICH WOULD MEET THE MINIMUM REQUIREMENTS OF THE DESCRIPTION. WE ARE ADVISED THAT INITIAL PROCUREMENTS OF CONSTRUCTION TYPE EQUIPMENT FOR INTRODUCTION INTO THE NAVY CONSTRUCTION FORCES SYSTEM ARE NORMALLY MADE ON PERFORMANCE TYPE SPECIFICATIONS SINCE.

B-169868, SEP. 17, 1970

BID PROTEST - ALL-OR-NONE BASIS DENIAL OF PROTEST OF FWD WAGNER, INC., AGAINST AWARD OF CONTRACT TO RAYGO, INC., LOW BIDDER, FOR EARTH COMPACTORS EQUIPMENT, BY DEFENSE SUPPLY AGENCY AND DEPARTMENT OF THE NAVY. AWARD TO BIDDER WHO WAS LOW ON ITEM AS WELL AS ALL-OR-NONE BASIS, EVALUATED ON F.O.B. ORIGIN OR F.O.B. DESTINATION WAS PROPERLY AWARDED CONTRACT AND FACT THAT PROTESTANT WOULD HAVE BEEN LOW ON PARTIAL AWARD BEFORE IFB WAS AMENDED TO SPECIFY "ALL-OR-NONE" AWARD DOES NOT REQUIRE OBJECTION TO THE AWARD.

TO FWD WAGNER, INC.:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 29, 1970, A COPY OF WHICH WAS FORWARDED HERE FOR CONSIDERATION BY THIS OFFICE BY LETTER DATED MAY 13, 1970, FROM THE HONORABLE ROBERT W. PACKWOOD, UNITED STATES SENATE, PROTESTING CERTAIN ACTIONS TAKEN BY THE DEFENSE SUPPLY AGENCY AND THE DEPARTMENT OF THE NAVY WHICH RESULTED IN THE AWARD OF A CONTRACT FOR EARTH COMPACTORS TO RAYGO, INC.

ON DECEMBER 29, 1969, THE NAVAL CONSTRUCTION BATTALION CENTER, PORT HUENEME, CALIFORNIA, INITIATED A MILITARY INTERDEPARTMENTAL PURCHASE REQUEST (MIPR) CALLING FOR 18 EARTH COMPACTORS MEETING THE REQUIREMENTS OF THE PURCHASE DESCRIPTION FURNISHED WITH THE MIPR. BASED THEREON, INVITATION FOR BIDS (IFB) NO. DSA 700-70-B-1976 WAS ISSUED ON FEBRUARY 16, 1970, BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO. THE PURCHASE DESCRIPTION FOR THE COMPACTORS WHICH WAS ATTACHED TO THE IFB WAS OF THE PERFORMANCE TYPE WHICH PLACED THE RESPONSIBILITY ON THE MANUFACTURER TO FURNISH A COMPACTOR WHICH WOULD MEET THE MINIMUM REQUIREMENTS OF THE DESCRIPTION. WE ARE ADVISED THAT INITIAL PROCUREMENTS OF CONSTRUCTION TYPE EQUIPMENT FOR INTRODUCTION INTO THE NAVY CONSTRUCTION FORCES SYSTEM ARE NORMALLY MADE ON PERFORMANCE TYPE SPECIFICATIONS SINCE, WHEN THE ITEMS TO BE PROCURED ARE AVAILABLE TO THE GENERAL PUBLIC ON THE OPEN MARKET, SUCH SPECIFICATIONS REFLECT THE MINIMUM REQUIREMENTS TO MEET THE NAVY'S NEEDS, THUS BROADENING THE BASE OF SUPPLY WITH A RESULTANT COST BENEFIT.

AS ORIGINALLY ISSUED THE IFB WOULD HAVE PERMITTED BIDS AND AWARDS TO BE MADE SEPARATELY ON THREE ITEMS AND RELATED DATA. ITEM NO. 1 CALLED FOR 8 UNITS TO BE SHIPPED TO THE U.S. NAVAL CONSTRUCTION BATTALION CENTER, DAVISVILLE, RHODE ISLAND; ITEM NO. 2 CALLED FOR 4 UNITS TO BE SHIPPED TO THE U.S. NAVAL CONSTRUCTION BATTALION CENTER, GULFPORT, MISSISSIPPI; AND ITEM NO. 3 CALLED FOR 6 UNITS TO BE SHIPPED TO THE U.S. NAVAL CONSTRUCTION BATTALION CENTER, PORT HUENEME, CALIFORNIA. THERE WERE FIVE AMENDMENTS TO THE IFB. AMENDMENT NO. 1 OF FEBRUARY 19, 1970, PROVIDED THAT THE AWARD FOR ALL ITEMS WOULD BE MADE ON AN ALL-OR NONE BASIS.

BIDS RECEIVED IN RESPONSE TO THE IFB WERE OPENED ON APRIL 7, 1970, AND THE LOW BID WAS FOUND TO HAVE BEEN SUBMITTED BY RAYGO. AWARD OF A CONTRACT TO THAT FIRM FOR THE 18 COMPACTORS AND RELATED DATA IN THE TOTAL AMOUNT OF $628,650 WAS MADE ON MAY 5, 1970, AFTER RECEIPT OF A PREAWARD SURVEY WHICH RECOMMENDED COMPLETE AWARD. THE SURVEY INDICATED THAT RAYGO WAS FULLY CAPABLE OF MANUFACTURING A COMPACTOR MEETING THE REQUIREMENTS OF THE PURCHASE DESCRIPTION WITHIN THE TIME OF DELIVERY SPECIFIED BY THE IFB.

YOU CONTEND THAT THE SPECIFICATIONS PROVIDED FOR THIS PROCUREMENT ARE BROAD ENOUGH TO PERMIT THE FURNISHING OF AN ITEM WHICH WOULD NOT BE HEAVY OR POWERFUL ENOUGH TO DO THE JOB REQUIRED OF IT, AND THAT A 24 HOUR FIRST ARTICLE TEST OF RAYGO'S PRODUCT WAS TOO SHORT A PERIOD OF TIME FOR A DETERMINATION OF THE ADEQUACY OF RAYGO'S MACHINE.

IN RESPONSE THERETO BY REPORT DATED JUNE 17, 1970, THE COMMANDING OFFICER, NAVAL CONSTRUCTION BATTALION CENTER, PORT HUENEME, CALIFORNIA, STATED THAT (1) AS SHOWN BY RAYGO'S DATA THE RAYGO RAM 45 MEETS THE MINIMUM NEEDS OF THE NAVY IN WEIGHT, OVERALL DIMENSIONS, NUMBER OF COMPACTION DRUMS, AND EFFECTIVE ROLLING WIDTH, AND THAT THE COMPACTIVE EFFORT IN POUNDS PER FOOT OF DRUM WIDTH DELIVERED BY THE RAYGO RAM 45 COMPARES FAVORABLY WITH THE DATA FURNISHED BY OTHER LISTED COMPACTOR SUPPLIERS; (2) THE 24-HOUR TEST TO BE PERFORMED BY THE FIRST ARTICLE IS A FUNCTIONAL TEST PROCEDURE DESIGNED TO ENSURE COMPLIANCE WITH CONTRACTUAL REQUIREMENTS AS WELL AS WITH THE MANUFACTURER'S PUBLISHED PERFORMANCE DATA AND SINCE RAYGO'S COMPACTOR HAS BEEN OFFERED ON THE COMMERCIAL MARKET FOR SEVERAL YEARS, THE TEST RESULTS ARE NOT INTENDED TO SERVE AS DATA FOR NEW PRODUCT DEVELOPMENT BUT WILL SERVE THE GOVERNMENT INSPECTOR IN SUCH A WAY AS TO ENABLE HIM TO DECIDE THAT THE EQUIPMENT WILL FULFILL ITS DESIGNED PURPOSE WHEN USED IN CONSTRUCTION OPERATIONS; AND (3) THE ADEQUACY FOR THE NAVY'S NEEDS OF THE 238 GROSS HORSE-POWER ENGINE DRIVING THE RAYGO COMPACTOR WILL BE DEMONSTRATED DURING THE 24-HOUR TEST, IF THE RAYGO MACHINE PERFORMS TO THE SATISFACTION OF THE GOVERNMENT INSPECTOR. IN THIS REGARD THE COMMANDING OFFICER, NAVAL CONSTRUCTION BATTALION CENTER, PORT HUENEME, REPORTED TO THE DEFENSE CONSTRUCTION SUPPLY CENTER ON JUNE 24, 1970, THAT THE FIRST ARTICLE TESTING WAS CONDUCTED DURING THE WEEK OF JUNE 15 THROUGH 21, 1970, AND THAT THE RAYGO COMPACTOR SATISFACTORILY COMPLETED THE TEST.

IT IS WELL ESTABLISHED THAT THE FORMULATION AND DRAFTING OF SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT AND THE SUBSEQUENT DETERMINATION OF WHETHER A GIVEN PRODUCT CONFORMS TO THOSE SPECIFICATIONS ARE PRIMARILY THE RESPONSIBILITY OF THE CONTRACTING AGENCY. 38 COMP. GEN. 190 (1958). THE FINAL DETERMINATION OF THE MINIMUM NEEDS OF THE GOVERNMENT IN THIS CASE INVOLVES COMPLEX QUESTIONS, REQUIRING A THOROUGH KNOWLEDGE OF CONSTRUCTION METHODS AND CONSTRUCTION EQUIPMENT. THIS OFFICE DOES NOT EMPLOY PERSONNEL QUALIFIED TO PASS UPON MATTERS IN SUCH A SPECIALIZED FIELD OF ACTIVITY. INSTEAD, FOR NECESSARY TECHNICAL DETERMINATIONS OF THIS NATURE, WE MUST ORDINARILY RELY ON THE JUDGEMENT AND EXPERTISE OF THE GOVERNMENT ENGINEERING PERSONNEL INVOLVED. ON THE BASIS OF THE RECORD BEFORE US, WE CANNOT SAY THAT NAVY'S DECISION TO UTILIZE THE SPECIFICATIONS IN QUESTION, OR ITS DETERMINATION OF THE ADEQUACY OF THE RAYGO COMPACTOR, WERE ARBITRARY, CAPRICIOUS, OR IN BAD FAITH. CONSEQUENTLY, WE WILL NOT QUESTION THE PROPRIETY OF SUCH JUDGEMENTS. SEE 38 COMP. GEN. 71 (1958); AND 36 ID. 251 (1956).

YOU ALSO PROTEST AGAINST AMENDMENT NO. 1 WHICH AMENDED THE IFB TO REQUIRE THAT THE AWARD BE MADE ON AN ALL-OR-NONE BASIS. YOU SAY THAT BEFORE SUCH AMENDMENT IT WOULD HAVE BEEN POSSIBLE FOR YOU TO BID COMPETITIVELY ON THE SIX MACHINES TO BE SHIPPED TO PORT HUENEME, CALIFORNIA, BUT BECAUSE OF THE STRUCTURE OF RAIL RATES FROM PORTLAND, OREGON, TO DAVISVILLE, RHODE ISLAND, AND TO GULFPORT, MISSISSIPPI, YOUR BID ON THE ENTIRE LOT DID NOT TURN OUT TO BE LOW ON AN EVALUATION OF THE TOTAL DESTINATION PRICES, EVEN EXCLUDING RAYGO'S BID. YOU BELIEVE THAT YOU WOULD HAVE BEEN LOW BIDDER ON AN F.O.B. PORTLAND PRICE, AGAIN EXCLUDING RAYGO, AND THE ONLY FIRMS THAT COULD BE COMPETITIVE ON THE ALL-OR-NONE BASIS WERE THOSE LOCATED IN THE CENTRAL PART OF THE UNITED STATES.

THE RECORD SHOWS THAT RAYGO WAS THE LOW BIDDER ON ALL UNITS, INCLUDING THE SIX MACHINES DESTINED FOR PORT HUENEME, BOTH ON AN F.O.B. ORIGIN AND AN F.O.B. DESTINATION BASIS. SINCE THE RAYGO COMPACTOR WAS DETERMINED TO BE ACCEPTABLE, IT IS CLEAR THAT NEITHER YOU NOR ANY OF THE OTHER BIDDERS WERE PREJUDICED IN ANY WAY BY ITS AWARD OF THE CONTRACT TO RAYGO ON AN ALL -OR-NONE BASIS. ALTHOUGH IT WAS ORIGINALLY REPORTED THAT AN ALL-OR-NONE AWARD WAS DEEMED ESSENTIAL BY THE CONTRACTING OFFICER IN ORDER TO PRECLUDE MULTIPLE AWARDS WHICH WOULD ENTAIL DUPLICATE PROVISIONING, REPAIR PARTS, AND THE TRAINING OF PERSONNEL, WE HAVE BEEN SUBSEQUENTLY ADVISED THAT IN THE FUTURE, TO ASSURE THAT ALL ASPECTS OF ALL-OR-NONE DETERMINATIONS RECEIVE FULL CONSIDERATIONS, THEY ARE TO BE REVIEWED AT A LEVEL HIGHER THAN THE CONTRACTING OFFICER.

ACCORDINGLY, INASMUCH AS AWARD WAS MADE TO THAT RESPONSIVE AND RESPONSIBLE BIDDER WHOSE BID WAS LOW ON ALL THREE INDIVIDUAL ITEMS OF EQUIPMENT, AS WELL AS BEING LOW ON AN ALL-OR-NONE BASIS, WE SEE NO VALID BASIS ON WHICH TO INTERFERE WITH RAYGO'S CONTRACT. YOUR PROTEST IS THEREFORE DENIED.