B-170066, NOV. 17, 1970

B-170066: Nov 17, 1970

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WHERE IT IS SHOWN THAT PROTESTANT'S ITEM WAS ACTUALLY EVALUATED AND DID NOT SATISFY NEEDS OF GOVERNMENT. THERE IS NO SHOWING OF ARBITRARY OR ERRONEOUS ACTION THE TECHNICAL EVALUATION WILL NOT BE QUESTIONED. 3M COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JUNE 11 AND SEPTEMBER 24. THE SUBJECT SOLICITATION WAS ISSUED ON APRIL 9. WHEN OFFERS WERE OPENED ON MAY 11. YOUR FIRM'S ALTERNATE PROPOSAL ON PART NUMBER 379 WAS FURNISHED TO THE TECHNICAL PERSONNEL AT THE PROCURING ACTIVITY FOR EVALUATION. IT WAS DETERMINED THAT THIS PART NUMBER WAS NOT AN ACCEPTABLE SUBSTITUTE FOR EITHER OF THE PART NUMBERS SET FORTH IN THE SOLICITATION IN THAT THE RECORDS FOR YOUR 379 TYPE TAPE ESTABLISHED THAT EXCESSIVE OXIDE SHED OF THE TAPE OCCURRED.

B-170066, NOV. 17, 1970

BID PROTEST DENIAL OF PROTEST AGAINST AWARD OF NEGOTIATED CONTRACT TO AMPEX CORPORATION FOR REEL AND TAPE ASSEMBLIES FOR AIRBORNE VIDEO RECORDERS FOR ROBBINS AIR FORCE BASE, GEORGIA, ON THE BASIS THAT PROTESTANT'S ITEM DID NOT MEET REQUIREMENTS. WHERE IT IS SHOWN THAT PROTESTANT'S ITEM WAS ACTUALLY EVALUATED AND DID NOT SATISFY NEEDS OF GOVERNMENT, AND THERE IS NO SHOWING OF ARBITRARY OR ERRONEOUS ACTION THE TECHNICAL EVALUATION WILL NOT BE QUESTIONED.

TO MAGNETIC PRODUCTS DIVISION, 3M COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JUNE 11 AND SEPTEMBER 24, 1970, WITH ENCLOSURES, PROTESTING AGAINST THE AWARD OF A CONTRACT TO AMPEX CORPORATION (AMPEX) UNDER REQUEST FOR PROPOSALS (RFP) NO. F09603-70-R- 4766, ISSUED BY THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, ROBINS AIR FORCE BASE, GEORGIA.

THE SUBJECT SOLICITATION WAS ISSUED ON APRIL 9, 1970, TO AMPEX AND YOUR COMPANY, AS THE ONLY KNOWN SOURCES FOR THE FURNISHING OF INITIAL QUANTITIES OF REEL AND TAPE ASSEMBLIES APPLICABLE TO THE AN/ALH-4 AND AN/ALD-5 AIRBORNE VIDEO RECORDERS, IDENTIFIED AS FOLLOWS:

"ITEM 1 - 5895 860 1311 EW REEL & TAPE ASSY

AMPEX P/N 744-975118

3M P/N 570-2-3600-VRB

APPL: AN/ALH-4/ALD-5 SYSTEMS"

THE RFP ALSO PROVIDED THAT ADDITIONAL ORDERS COULD BE PLACED IN QUANTITIES NOT TO EXCEED THREE TIMES THE INITIAL AWARD QUANTITY (913) OR FOR LESSER QUANTITIES UNDER ITEMS 1AC AND 1AD.

WHEN OFFERS WERE OPENED ON MAY 11, 1970, AMPEX PROPOSED TO FURNISH ITS PART NUMBER IDENTIFIED ABOVE AT A UNIT PRICE OF $74.45 AND 3M OFFERED TO FURNISH ITS PART NUMBER SET FORTH ABOVE AT A UNIT PRICE OF $75.00. YOUR COMPANY SUBMITTED TWO ALTERNATE PROPOSALS, ONE ON PART NUMBER 379T-2- 3600VRB (379) AT A UNIT PRICE OF $69.00 AND ONE ON PART NUMBER 500-2- 3600VRB AT A UNIT PRICE OF $85.00. YOUR FIRM'S ALTERNATE PROPOSAL ON PART NUMBER 379 WAS FURNISHED TO THE TECHNICAL PERSONNEL AT THE PROCURING ACTIVITY FOR EVALUATION. IT WAS DETERMINED THAT THIS PART NUMBER WAS NOT AN ACCEPTABLE SUBSTITUTE FOR EITHER OF THE PART NUMBERS SET FORTH IN THE SOLICITATION IN THAT THE RECORDS FOR YOUR 379 TYPE TAPE ESTABLISHED THAT EXCESSIVE OXIDE SHED OF THE TAPE OCCURRED, WHICH TENDED TO CLOG THE RECORDERS IN A MANNER GREATER THAN THE PART NUMBERS SPECIFIED IN THE RFP, WITH A RESULTANT COSTLY LOSS OF DATA. SUCH DETERMINATION APPEARS TO HAVE BEEN BASED UPON A TELEGRAM OF MAY 1969 FROM EIELSON AIR FORCE BASE, ALASKA, DRAFTED BY THE CHIEF, QUALITY CONTROL & EVALUATION, PURSUANT TO AN ANALYZATION OF VIDEO TAPES AFTER SORTIES. IT WAS ALSO SUSPECTED, BUT NOT CONCLUDED, THAT 379 TYPE TAPE CAUSED EXCESSIVE WEAR ON THE ROTARY HEADS OF THE RECORDER. ACCORDINGLY, AWARD OF THE CONTRACT WAS MADE TO AMPEX ON MAY 26, 1970, AS THE LOWEST RESPONSIVE AND RESPONSIBLE OFFEROR. AS OF JUNE 19, 1970, THE INITIAL AWARD QUANTITY OF TAPES HAD BEEN DELIVERED TO THE GOVERNMENT BY AMPEX.

YOUR PRINCIPAL CONTENTION IS THAT THE AWARD WAS NOT MADE TO THE LOWEST RESPONSIBLE OFFEROR IN ACCORDANCE WITH SECTION H-3 OF THE SOLICITATION, WHICH PROVIDED:

"H-3 EVALUATION OF PROPOSALS: EVALUATION OF INCREMENTAL PROPOSALS AND AWARD TO THE LOWEST RESPONSIBLE OFFEROR WILL BE ON THE BASIS OF 'INITIAL AWARD - INCREMENT A' ONLY OF EACH LINE ITEM." YOU SAY THAT YOUR 379 TYPE TAPE IS AN ACCEPTABLE PRODUCT; THAT IT HAS BEEN USED BY THE AIR FORCE FOR SEVERAL YEARS WITHOUT PRIOR COMPLAINT; AND THAT IT WAS OFFERED AT A LOWER UNIT PRICE, THUS RESULTING IN A POTENTIAL TOTAL SAVINGS OF $13,679.50. YOU CONTEST THE CONTRACTING OFFICER'S STATEMENT THAT AN ENGINEERING EVALUATION HAS DETERMINED THAT YOUR 379 TYPE TAPE IS AN UNACCEPTABLE SUBSTITUTE FOR THE PART NUMBER 570-2-3600VRB (570) TAPE, AND YOU POINT OUT THAT NO EVIDENCE WAS MADE AVAILABLE TO YOU TO PROVE THAT AN ENGINEERING EVALUATION WAS MADE TO DETERMINE THE UNACCEPTABILITY OF THE 379 ITEM.

IN SUPPORT OF YOUR ARGUMENT THAT YOUR PART NUMBER 379 SHOULD HAVE BEEN CONSIDERED FOR AWARD, YOU CITE TWO EARLIER SOLICITATIONS BY ROBINS AIR FORCE BASE IN WHICH THIS PART NUMBER WAS SOLICITED AS AN ACCEPTABLE ITEM. THE FACTS SURROUNDING THE LATER OF THE TWO SOLICITATIONS, RFP NO. F09603- 69-R-1596, ISSUED ON DECEMBER 3, 1968, AND OPENED ON JANUARY 2, 1969, HAVE, WE THINK, A DIRECT BEARING ON THE ALLEGATIONS RAISED IN THE INSTANT PROTEST. THAT RFP DID, IN FACT, SOLICIT YOUR PART NUMBER 379 OR AMPEX PART NUMBER 744-975118 (744). HOWEVER, IN A TELEPHONE CONVERSATION OF DECEMBER 19, 1968, FROM YOUR OFFICE MANAGER, MR. JOHN G. ELMQUIST, TO MR. D. SANFORD WILLS OF ROBINS AIR FORCE BASE, MR. ELMQUIST ADVISED THAT 3M INTENDED TO OFFER ITS PART NUMBER 570 IN LIEU OF PART NUMBER 379 WHICH WAS SOLICITED, INASMUCH AS THE LATTER ITEM WAS NO LONGER MADE. IN ADDITION, MR. ELMQUIST STATED THAT PART NUMBER 570 WAS A BETTER TAPE THAN THE OLD 379. MR. ELMQUIST WAS THEN REQUESTED TO FURNISH SOMETHING GIVING ALL THE PROPERTIES OF THE NEW TAPE WHICH THE ENGINEERING STAFF AT THE BASE COULD REVIEW TO DETERMINE FOR THEMSELVES THAT THE ITEM CONFORMED TO THE SPECIFICATIONS.

THE CONTRACTING OFFICER THEREAFTER ASKED THE ENGINEERING STAFF WHETHER THE SPECIFICATIONS PROPERLY INCLUDED SERVICE ENGINEERING EXHIBIT NEEC 91495; WHETHER THE NEW PART 570 WAS AN ACCEPTABLE SUPERSEDING ITEM FOR PART 379; AND WHETHER AMPEX PART 744 WAS COMPARABLE TO YOUR PART 570. THE RESPONSE OF THE ENGINEERING STAFF DATED MARCH 5, 1969, WAS AS FOLLOWS:

"1. INVESTIGATION OF SUBJECT FSN BY SERVICE ENGINEERING HAS BEEN COMPLETED AND SUBJECT PURCHASE REQUEST IS BEING RETURNED FOR FURTHER PROCUREMENT ACTION.

"2. IN REPLY TO QUESTIONS ASKED IN WRPIFA LETTER, THE FOLLOWING ANSWERS ARE GIVEN:

"A. SERVICE ENGINEERING EXHIBIT WRNEEC 91495 ESTABLISHES PHYSICAL AND MAGNETIC PROPERTIES FOR VIDEO TAPE TO BE USED WITH THE AN/ALH-4 TYPE RECORDERS, AS THESE HAD NOT BEEN PREVIOUSLY ESTABLISHED. IN NO MANNER IS THIS EXHIBIT A TOTAL MEASURE OF VIDEO TAPE PERFORMANCE NEEDS. THUS IN ORDER TO OBTAIN MAXIMUM RECORDER PERFORMANCE, A PERIODIC REVIEW OF AVAILABLE VIDEO TAPES SHOULD BE CONDUCTED SO AS TO ALLOW FOR THE PROCUREMENT OF THE MOST SUITABLE VIDEO TAPES, FOR AIR FORCE USE, UPON DEVELOPMENT OF IMPROVED TAPES.

"B. 3M P/N 570-2-3600VRB IS AN ACCEPTABLE SUPERSEDING ITEM AND SUPERIOR TO 3M P/N 2-379T-36VRB. DUE TO 3M PART NUMBERING CHANGES, 3M P/N 2-379T- 36VRB HAS BEEN RENUMBERED AS TYPE 575 TAPES. THE TYPE 570 TAPES ARE IMPROVED VERSION OF TYPE 575 TAPES AND ARE MORE DESIRABLE FOR USE WITH THE AN/ALH-4 RECORDERS.

"C. THERE DOES NOT EXIST, AT THIS TIME, A USEFUL COMPARISON OF THE AMPEX AND THE 3M TAPES AS EACH HAS ITS OWN PECULIARITIES AND ARE NOT EASILY COMPARED. AMPEX P/N 744-975118 IS PRESENTLY THE DESIRED AMPEX VIDEO TAPE FOR USE WITH THE AN/ALH-4 TYPE RECORDERS WHILE THE 3M P/N 570-2-3600VRB IS PRESENTLY THE DESIRED 3M VIDEO TAPE FOR USE WITH THE AN/ALH-4 TYPE RECORDERS. NOTE THAT AMPEX TYPE 744 VIDEO TAPES HAVE UNDERGONE IMPROVEMENTS WITH NO SUBSEQUENT PART NUMBER CHANGE.

"3. SINCE IMPROVEMENTS IN MAGNETIC TAPE PRODUCTION ARE CONTINUOUSLY BEING MADE AND SINCE THE AIR FORCE SHOULD BE FULLY AWARE OF SUCH IMPROVEMENTS, SERVICE ENGINEERING EXHIBIT 91495 WILL BE REVISED TO INCLUDE ANY SUCH CHANGES." THUS, IT APPEARS THAT YOUR OLD PART 379 WAS ACTUALLY EVALUATED BY APPROPRIATE TECHNICAL PERSONNEL, AND DETERMINED NOT TO SATISFY THOSE PARTICULAR UPDATED PERFORMANCE NEEDS OF THE AIR FORCE WHICH WERE THEN OBTAINABLE FROM YOUR PART 570 AND THE IMPROVED AMPEX PART 744.

WE HAVE LONG RECOGNIZED THAT GOVERNMENT PROCUREMENT OFFICIALS WHO ARE FAMILIAR WITH THE CONDITIONS UNDER WHICH EQUIPMENT WILL BE USED AND WITH PAST RESULTS OBTAINED IN THE USE OF SIMILAR EQUIPMENT ARE GENERALLY IN THE BEST POSITION TO KNOW THE GOVERNMENT'S NEEDS. IN SUCH MATTERS REQUIRING TECHNICAL DETERMINATIONS BY THOSE OFFICIALS, WE WILL NOT ATTEMPT TO SUBSTITUTE OUR OWN JUDGEMENT FOR THAT OF THE TECHNICAL PERSONNEL EMPLOYED BY THE GOVERNMENT TO DECIDE SUCH MATTERS, UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE THAT THEIR JUDGEMENT IS ARBITRARY OR IN ERROR, WHICH IS NOT THE CASE HERE. SEE 40 COMP. GEN. 294 (1960).

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.