B-170346, OCT. 29, 1970

B-170346, OCT. 29, 1970

BID PROTEST - RESTRICTIVE SPECIFICATIONS DENIAL OF PROTEST AGAINST REJECTION OF PROTESTANT'S PROPOSAL FOR NONCONFORMANCE TO SPECIFICATIONS AND AWARD TO MICRODYNE FOR TELEMETRY TRACKING AND DATA RECEIVERS, ISSUED BY THE NAVY PURCHASING OFFICE. WHERE PROTESTANT HAD BEEN QUESTIONED PRIOR TO THE REQUEST FOR PROPOSALS CONCERNING EQUIPMENT CERTIFICATION TO MILITARY STANDARDS, AND THE PROCUREMENT HAD BEEN ASSIGNED A HIGH PRIORITY BY THE DOD, IT IS NOT UNREASONABLE TO CALL FOR DELIVERY WITHIN 30 DAYS SINCE THE OFFERS HAD BEEN REQUESTED ON THAT BASIS AND WHILE IT IS THE DUTY OF GAO TO DETERMINE WHETHER SPECIFICATIONS AS WRITTEN ARE UNDULY RESTRICTIVE OF COMPETITION, THE FACT THAT A PARTICULAR OFFEROR MAY BE UNABLE OR UNWILLING TO MEET MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENTS NEEDS IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE RESTRICTIVE AND THE PROTEST IS THEREFORE DENIED.

TO DEFENSE ELECTRONICS, DIVISION OF DEI INDUSTRIES:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO MICRODYNE CORPORATION BY THE UNITED STATES NAVY PURCHASING OFFICE, LOS ANGELES, CALIFORNIA, PURSUANT TO SOLICITATION NO. N00123-70 R-2013.

THE SUBJECT REQUEST FOR PROPOSALS WAS ISSUED ON JUNE 17, 1970, TO PROCURE 20 TELEMETRY TRACKING RECEIVERS AND 25 TELEMETRY DATE RECEIVERS AND APPLICABLE DOCUMENTATION IN ACCORDANCE WITH DETAILED PERFORMANCE SPECIFICATIONS, INCLUDING THE REQUIREMENT THAT THE RECEIVERS CONFORM TO MILITARY STANDARD-826A, AND SPECIFICALLY TEST METHODS 3002, 3003, AND 4001 THEREOF AS A MINIMUM REQUIREMENT. IN ADDITION, THE RFP PROVIDED THAT THE EQUIPMENT MUST BE "FULLY PRODUCTIONIZED (I.E., ONLY PRODUCTION UNITS WHICH HAVE BEEN DELIVERED IN LOT QUANTITIES AND HAVE SUCCESSFULLY COMPLETED ACCEPTANCE TESTING AND MET SPECIFICATION REQUIREMENTS)", AND MUST HAVE BEEN CERTIFIED TO MIL-STD-826A. THE RFP ALSO PROVIDED THAT A REPRESENTATIVE SAMPLE OF THE EQUIPMENT OFFERED MIGHT BE REQUIRED TO BE SUBMITTED WITHIN 10 DAYS AFTER REQUEST, AND THAT SUCH SAMPLE WOULD BE EVALUATED IN ACCORDANCE WITH THE ATTACHED "QUALIFICATION CRITERIA." THE LATTER PROVISION INCLUDED THE REQUIREMENT THAT THE SAMPLE SUPPLIED FOR TESTING SHOULD BE CERTIFIED TO MIL-STD-826A, AND THAT PROOF OF THE CERTIFICATION MUST BE FURNISHED WITH SUBMISSION OF THE PROPOSAL.

THREE PROPOSALS WERE RECEIVED BY THE CLOSING DATE OF JULY 13, 1970. AFTER TECHNICAL EVALUATION, IT WAS DETERMINED THAT ONLY MICRODYNE WAS RESPONSIVE TO THE REQUIREMENT THAT THE RECEIVERS BE CERTIFIED TO MIL STD- 826A, AS EVIDENCED BY A CERTIFICATE DATED JUNE 26, 1968, FROM WELEX ELECTRONICS. YOUR TECHNICAL PROPOSAL STATED THAT YOUR RECEIVER WOULD NOT CONFORM TO MIL-STD-826A, BUT HAD BEEN CERTIFIED TO MIL-STD-461A, WHICH YOU OFFERED AS A SUBSTITUTE.

ALTHOUGH YOU PROTESTED TO OUR OFFICE PRIOR TO AWARD, IT WAS DETERMINED THAT THE URGENCY OF THE PROCUREMENT PRECLUDED RESOLUTION OF YOUR PROTEST BEFORE AWARD. THIS DETERMINATION WAS BASED UPON THE FOLLOWING:

"2. THE RECEIVERS ARE TO BE GFE ON CONTRACT NO. N00123-C-71-0207. THE TIME FRAME OF THAT CONTRACT DICTATES DELIVERY 75 DAYS AFTER 6 JULY 1970. THE OVERALL PROJECT UPON WHICH THE SYSTEM IS TO BE UTILIZED IS THE UHF-VHF CONVERSION WHICH HAS BEEN ASSIGNED A DEPARTMENT OF DEFENSE MASTER URGENCY LIST PRIORITY CUE CAP 20A AND A FORCE ACTIVITY DESIGNATION OF 02.

"3. A DMS PRIORITY 2 APPLIES." IN VIEW THEREOF, OUR OFFICE WAS NOTIFIED PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION 2 407.8(B)(2) THAT AWARD WAS BEING MADE TO MICRODYNE ON AUGUST 6, 1970.

BASICALLY, IT IS YOUR CONTENTION THAT THE REQUIREMENT FOR CERTIFICATION TO MIL-STD-826A WAS AN UNDUE RESTRICTION ON COMPETITION AND PREJUDICIAL TO DEI. YOU ARGUE THAT SINCE MIL-STD-826A IS OBSOLETE, HAVING BEEN SUPERSEDED BY MIL-STD-461, NAVY'S REFUSAL TO ACCEPT CERTIFICATION TO THE LATTER SPECIFICATION INDICATES ITS BIAS TOWARD DEI. AS FURTHER INDICATION OF NAVY'S BIAS YOU POINT OUT THAT WHEN YOU AGREED TO COMPLY WITH CERTIFICATION TO MIL-STD-826A, YOU WERE ADVISED ON JULY 31, 1970, TO SUBMIT A CERTIFICATE FROM THE TESTING LABORATORY BY AUGUST 3, 1970, AND A REPRESENTATIVE SAMPLE "IMMEDIATELY". IN THIS CONNECTION YOU POINT OUT THAT YOU HAD PREVIOUSLY ADVISED THE NAVY THAT IT WOULD TAKE 30 DAYS TO CERTIFY TO MIL-STD-826A, AND THE REQUIREMENT FOR IMMEDIATE SUBMISSION OF A REPRESENTATIVE SAMPLE WAS CONTRARY TO PARAGRAPH C-26, WHICH ALLOWED 10 DAYS FOR SUCH SUBMISSION. IN ADDITION, YOU STATE THAT IT IS STRANGE THAT AFTER YOU ADVISED THE NAVY THAT IT WOULD TAKE 30 DAYS TO CERTIFY, 30 DAY DELIVERY WAS MADE MANDATORY.

THE DRAFTING OF SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT, AS WELL AS THE DETERMINATION OF WHETHER PRODUCTS OFFERED TO MEET THE SPECIFICATIONS, IS PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY CONCERNED. 38 COMP. GEN. 190 (1958). WHILE IT IS THE DUTY OF THIS OFFICE TO DETERMINE WHETHER SPECIFICATIONS AS WRITTEN ARE UNDULY RESTRICTIVE OF COMPETITION, THE FACT THAT A PARTICULAR OFFEROR MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEED IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. 36 COMP. GEN. 251 (1956).

IN THE INSTANT CASE, JUSTIFICATION FOR REQUIRING CERTIFICATION TO MIL STD -826A, RATHER THAN TO MIL-STD-461A, IS EXPLAINED IN A MEMORANDUM DATED JULY 21, 1970, OF THE NAVAL FLEET MISSILE SYSTEMS ANALYSIS AND EVALUATION GROUP, FROM WHICH WE QUOTE THE FOLLOWING:

"2. ALTHOUGH BOTH MIL-STD-826A AND 461A COVER SIMILAR TYPES OF TESTS THE TEST LIMITS WHICH ARE SPECIFIED VARY GREATLY. FOR INSTANCE, THE CONDUCTED EMISSION TESTS UNDER MIL-STD-826A COVER THE FREQUENCY RANGE 14 KHZ TO 100 MHZ (14,000 TO 100,000,000 CYCLES) WHILE MIL-STD-461A COVERS THE FREQUENCY RANGE 20 KHZ TO 50 MHZ (20,000 TO 50,000,000 CYCLES). ENCLOSURE (1) IS A GROUP OF CHARTS COPIES FROM MIL-STD-461A WITH THE EQUIVALENT CURVES FROM MIL-STD-826A SUPERIMPOSED. IN ADDITION TO THE DIFFERENCE IN THE FREQUENCY RANGES SET FORTH ABOVE, THESE CHARTS SHOW SOME OF THE SIMILARITIES AND DISSIMILARITIES THAT EXIST BETWEEN THE TWO SPECIFICATIONS. ENCLOSURE (2) IS AN EXCERPT FROM THE DEI PROPOSAL WHICH INDICATES THAT THEY ALSO ARE AWARE OF THIS DISPARITY IN FREQUENCY RANGE TESTING. THE GOVERNMENT AND DEI DISAGREE REGARDING THE EFFECT ON OUR SYSTEM OPERATION.

"3. PARAGRAPH 4.3.1 OF THE DETAILED OPERATIONAL SPECIFICATION OF THE SUBJECT RFP REQUIRES THAT THE FIRST INTERMEDIATE FREQUENCY (1ST IF) BE EITHER 50, 55, 60 OR 65 MHZ. THE GREATER THE SPREAD OF FREQUENCIES BETWEEN THE LOCAL OSCILLATOR AND THE 1ST IF THE MORE RELIABLE IS THE RECEIVER. THE HIGH 1ST IF'S THAT ARE SPECIFIED MAKES THE AUTOMATIC TRACKING ANTENNA SYSTEM LESS SUSCEPTIBLE TO INTERFERING IMAGE FREQUENCIES. THE HIGH PERFORMANCE OF THE ANTENNA SYSTEM IS DEPENDENT UPON ITS ABILITY TO REDUCE OR TO ELIMINATE UNWANTED SIGNALS. THE USE OF A LOWER 1ST IF COULD SERIOUSLY DEGRADE THE SYSTEMS' ABILITY TO BOTH TRACK THE TARGETS AND TO RECORD THE DATA DURING AIR-TO-AIR OPERATIONS. DEI HAS PROPOSED THE USE OF A 55 MHZ 1ST IF TO MEET OUR REQUIREMENT. THE CERTIFICATION OF A BASIC PRODUCT LINE RECEIVER TO MIL-STD-461A WOULD NOT ASSURE THE QUALITY OF PERFORMANCE AT 55 MHZ OR ANY OF THE OTHER SPECIFIED FREQUENCIES. SYSTEM PERFORMANCE CAN BE VITALLY AFFECTED BY THE RECEIVER'S ABILITY TO REMAIN WITHIN THE CONDUCTED EMISSION LIMITS SPECIFIED IN MIL-STD-826A.

"4. PARAGRAPH 40 OF MIL-STD-461A CONTAINS CORRELATION TABLES FOR DETERMINING EQUIVALENCY REQUIREMENTS TO SUPERSEDE SPECIFICATIONS. TABLE A -VII, WHICH APPLIES TO MIL-STD-826A, HAS NOT YET BEEN PUBLISHED ALTHOUGH MIL-STD-461A WAS PUBLISHED 31 JULY 1967. THIS INDICATES THAT THIS CORRELATION IS DIFFICULT EVEN FOR PERSONNEL FAMILIAR WITH THE SPECIFICATIONS AND IS BORNE OUT BY ATTEMPTS OF FMSAEG ENGINEERS WHO TRIED TO CORRELATE INFORMATION ON SOME OF THE ESSENTIAL FEATURES FOR THIS PROCUREMENT. SINCE IT IS KNOWN THAT MIL-STD-826A SETS FORTH SPECIFICATIONS WHICH ARE COMPATIBLE WITH THIS PROCUREMENT, THE TIME REQUIRED FOR A DETAILED REVIEW IS NOT CONCOMITANT WITH THE SHORT DELIVERY SCHEDULE. SINCE FMSAEG IS NOT A TESTING FACILITY THE UNDERTAKING OF THE CORRELATION REVIEW WOULD BE OUTSIDE ITS FIELD OF SPECIALTY AND WOULD BE WASTEFUL OF ENGINEERING TIME AND TALENT.

"5. MIL-STD-461A, PARAGRAPH 5, PROVIDES A DESCRIPTION OF THE MEASURING EQUIPMENT NECESSARY TO ASSURE COMPLIANCE WITH THE SPECIFICATION; THE EQUIPMENT CHARACTERISTICS ARE SUPPOSED TO APPEAR AT TABLE III. THIS TABLE HAS NOT BEEN PUBLISHED TO DATE. SINCE THERE IS NEITHER A LISTING OF ACCEPTABLE TEST EQUIPMENTS NOR THE CHARACTERISTICS FOR THE EQUIPMENT, CONSIDERABLE ENGINEERING TIME WOULD BE REQUIRED TO DETERMINE TEST EQUIPMENT NEEDS AND MIGHT REQUIRE THE PURCHASE OF ADDITIONAL TEST EQUIPMENT. AGAIN THE USE OF MIL-STD-461A WOULD REQUIRE A DETAILED STUDY WHICH WOULD BE INIMICAL TO THE TIME CONSTRAINTS PLACED ON THIS PROCUREMENT.

"6. EVEN MORE SERIOUS IS THE FACT THAT THE MISSING CORRELATION CRITERIA AND TEST MEASURING EQUIPMENT CHARACTERISTICS PERMITS CONSIDERABLE LATITUDE FOR INTERPRETATION OF TEST DATE DEVELOPED BY USING MIL-STD-461A. THERE IS MUCH LESS LATITUDE FOR INTERPRETATION OF THE TEST DATA DEVELOPED BY USING MIL-STD-826A. MIL-STD-826A IS CONSIDERED MORE STRINGENT IN THIS AREA AND THIS WAS ONE OF THE REASONS IT WAS SPECIFIED FOR THIS PROCUREMENT."

FURTHERMORE, THE ADMINISTRATIVE REPORT INCLUDES A MEMORANDUM FROM ROBERT J. NELSON, CONTRACTING OFFICER, STATING THAT ON MAY 18, 1970, APPROXIMATELY ONE MONTH BEFORE THE RFP WAS ISSUED, HE CONTRACTED DEI, MICRODYNE, ASTRO COMMUNICATIONS, AND SCIENTIFIC ATLANTA AND INQUIRED AS TO THEIR EQUIPMENT CERTIFICATION TO MIL-STD-826A AND MIL-STD-461A. REPORTS THAT YOU STATED YOU WERE CERTIFIED TO 461A AND COULD CERTIFY TO 826A WITHIN 30 DAYS, AND THAT THE OTHER THREE FIRMS STATED THEY HAD RECEIVERS CERTIFIED TO BOTH STANDARDS. IN THESE CIRCUMSTANCES, WE ARE UNABLE TO CONCLUDE THAT THE SPECIFICATIONS WERE UNDULY RESTRICTIVE.

FURTHERMORE, WE ARE UNABLE TO AGREE WITH THE CONTENTION THAT YOUR FIRM WAS DISCRIMINATED AGAINST. AS NOTED ABOVE, THERE WAS SUFFICIENT JUSTIFICATION FOR REQUIRING CERTIFICATION TO MIL-STD-826A, AND ADMITTEDLY YOUR FIRM COULD HAVE COMPLIED WITHIN 30 DAYS. SINCE THE RFP WAS ISSUED ON JUNE 17, 1970, YOU COULD HAVE RECEIVED CERTIFICATION ON OR ABOUT JULY 17, 1970, WHICH WAS APPROXIMATELY 10 DAYS PRIOR TO THE NOTICE ON JULY 27, 1970, THAT BEST AND FINAL OFFERS SHOULD BE SUBMITTED BY AUGUST 3, 1970. SINCE YOU RESPONDED BY TELEGRAM DATED JULY 29, 1970, QUOTING FOR THE FIRST TIME ON A RECEIVER CERTIFIED TO MIL-STD 826A, WE SEE NOTHING PREJUDICIAL IN THE NAVY'S REQUEST FOR A CERTIFICATE AND IMMEDIATE SUBMISSION OF A REPRESENTATIVE SAMPLE, PARTICULARLY IN VIEW OF THE FACT THAT THE RFP CALLED FOR SUBMISSION OF THE CERTIFICATE WITH THE PROPOSAL. YOU RESPONDED ON AUGUST 4, 1970, BY SUBMITTING A CERTIFICATE TO MIL-STD-461A. FURTHERMORE, WE SEE NOTHING "STRANGE" IN THE DECISION TO MAKE AWARD CALLING FOR DELIVERY IN 30 DAYS SINCE OFFERS HAD BEEN REQUESTED ON THAT BASIS, THE PROCUREMENT HAD BEEN ASSIGNED AN 02 PRIORITY DESIGNATION, AND THE RECEIVERS WERE REQUIRED AS GOVERNMENT-FURNISHED EQUIPMENT BY SEPTEMBER 19, 1970.

ACCORDINGLY, WE SEE NO BASIS FOR OUR OFFICE TO TAKE EXCEPTION TO THE ADMINISTRATIVE ACTION IN THIS CASE.