B-170492, OCT. 26, 1970
Highlights
LOW OFFEROR WHO OFFERED EQUIPMENT WHICH DOES NOT COMPLY WITH THE DETAILED SPECIFICATIONS OF THE PROCUREMENT AGENT MAY NOT HAVE PROTEST SUSTAINED ON THE BASIS OF A PROPOSAL CONFERENCE WHERE ITS FAILURE TO MEET SPECIFICATIONS WAS NOT MADE EVIDENT. SCS-13-70 WAS ISSUED ON JUNE 6. THE AUTOMATIC DRAFTING SYSTEM LISTED ON THE GENERAL SERVICES ADMINISTRATION SCHEDULE WAS UNSATISFACTORY FOR THIS WORK AND APPROVAL WAS GRANTED BY GSA FOR THIS AGRICULTURE PROCUREMENT. TWO PROPOSALS WERE RECEIVED IN RESPONSE TO THE SOLICITATION. AWARD WAS MADE TO GERBER ON JUNE 29. CALCOMP PROTESTED THIS AWARD ON THE BASIS THAT ITS EQUIPMENT DID IN FACT MEET AGRICULTURE'S REQUIREMENTS AND WAS CONSIDERABLY LESS EXPENSIVE.
B-170492, OCT. 26, 1970
BID PROTEST - AWARD TO HIGHER BIDDER - FAILURE TO MEET SPECIFICATIONS DENIAL OF PROTEST AGAINST THE AWARD OF A NEGOTIATED CONTRACT FOR AUTOMATIC DRAFTING MACHINES, REQUIRED BY THE DEPARTMENT OF AGRICULTURE, TO GERBER SCIENTIFIC COMPANY. LOW OFFEROR WHO OFFERED EQUIPMENT WHICH DOES NOT COMPLY WITH THE DETAILED SPECIFICATIONS OF THE PROCUREMENT AGENT MAY NOT HAVE PROTEST SUSTAINED ON THE BASIS OF A PROPOSAL CONFERENCE WHERE ITS FAILURE TO MEET SPECIFICATIONS WAS NOT MADE EVIDENT. OFFEROR HAS THE OBLIGATION TO INQUIRE, BEFORE SUBMITTING PROPOSAL SUBSTANTIALLY DIFFERENT FROM THE SPECIFICATIONS.
TO CALIFORNIA COMPUTER PRODUCTS, INCORPORATED:
THIS CONCERNS YOUR TELEGRAM OF JULY 30, 1970, AND SUBSEQUENT LETTERS PROTESTING THE CONTRACT AWARD TO GERBER SCIENTIFIC INSTRUMENT COMPANY UNDER REQUEST FOR PROPOSALS NO. SCS-13-70, ISSUED BY THE DEPARTMENT OF AGRICULTURE.
REQUEST FOR PROPOSALS NO. SCS-13-70 WAS ISSUED ON JUNE 6, 1970, FOR THE PROCUREMENT OF AN AUTOMATIC DRAFTING MACHINE FOR ACCELERATING THE PRODUCTION OF ATLAS MAPS FOR PUBLISHED SOIL SURVEYS, BASE MAPS FOR PLANNING PURPOSES, AND TOPOGRAPHICAL MAPS FOR FLOODWATER RETARDING STRUCTURE DESIGNS. THE AUTOMATIC DRAFTING SYSTEM LISTED ON THE GENERAL SERVICES ADMINISTRATION SCHEDULE WAS UNSATISFACTORY FOR THIS WORK AND APPROVAL WAS GRANTED BY GSA FOR THIS AGRICULTURE PROCUREMENT. TWO PROPOSALS WERE RECEIVED IN RESPONSE TO THE SOLICITATION, ONE FROM GERBER IN THE AMOUNT OF $238,970 AND THAT FROM CALCOMP IN THE AMOUNT OF $153,344. THE DEPARTMENT OF AGRICULTURE CONCLUDED FROM THE PRE-AWARD EVALUATION THAT THE EQUIPMENT OFFERED BY CALCOMP DID NOT MEET THE REQUIREMENTS AS SET FORTH IN THE SPECIFICATIONS. AWARD WAS MADE TO GERBER ON JUNE 29, 1970. CALCOMP PROTESTED THIS AWARD ON THE BASIS THAT ITS EQUIPMENT DID IN FACT MEET AGRICULTURE'S REQUIREMENTS AND WAS CONSIDERABLY LESS EXPENSIVE.
THE REPORT ON THIS PROTEST FROM AGRICULTURE FURNISHED A DETAILED ANALYSIS OF CALCOMP'S PROPOSED EQUIPMENT. A COPY OF THAT REPORT WAS FURNISHED TO YOU. WHILE THE REPORT CONSIDERED SEVERAL FEATURES OF CALCOMP'S PROPOSAL WHICH AGRICULTURE FELT WERE DEFECTIVE, WE FIND IT NECESSARY ONLY TO DISCUSS ONE DEFECT IN THAT PROPOSAL, THE SIZE OF THE DRAFTING TABLE. PARAGRAPH 2.A, DETAILED SPECIFICATIONS, REQUIRED THE DRAFTING TABLE TO HAVE AN EFFECTIVE DRAFTING AREA OF 5' X 8'. THE AUTOMATIC DRAFTING SYSTEM OFFERED BY CALCOMP HAD A DRAFTING TABLE OF EITHER 4.5' X 6' OR 4' X 6', THERE BEING A DISPUTE AS TO WHICH REPRESENTS THE CORRECT MEASUREMENT. HOWEVER, CLEARLY NEITHER MEASUREMENT COMPLIES WITH THE REQUIREMENT IN THE SPECIFICATIONS THAT THE TABLE HAVE AN EFFECTIVE DRAFTING AREA OF 5' X 8'.
THIS OFFICE HAS CONSISTENTLY RULED IN NEGOTIATED AS WELL AS FORMALLY ADVERTISED PROCUREMENTS THAT THE PROCURING ACTIVITY HAS THE PRIMARY RESPONSIBILITY FOR DETERMINING ITS MINIMUM NEEDS AND WHETHER A PRODUCT MEETS THOSE REQUIREMENTS. SEE B-169365, JUNE 30, 1970; B-166726, JUNE 24, 1970, AND B-168936, MAY 22, 1970. IN THIS PARTICULAR PROCUREMENT THERE IS NO QUESTION THAT CALCOMP'S DRAFTING TABLE DOES NOT MEET THE SPECIFICATIONS. NOR DO WE BELIEVE THE JUDGMENT TO PROCURE A 5' X 8' DRAFTING TABLE CAN BE QUESTIONED IN THIS INSTANCE. WE HAVE BEEN ADVISED BY AGRICULTURE THAT ON 5' X 8' DRAFTING TABLE APPROXIMATELY 85 PERCENT OF THE TOTAL WORK CAN BE DONE WITHOUT ADDITIONAL SETUP TIME OR MATCHING PROBLEMS. ON A 4.5' X 6' DRAFTING TABLE APPROXIMATELY 48 PERCENT OF THE TOTAL WORK MAY BE SO HANDLED AND ON A 4' X 6' ONLY 37 PERCENT OF THE TOTAL WORK. SINCE CALCOMP'S AUTOMATIC DRAFTING MACHINE WAS UNACCEPTABLE FOR THIS REASON, WE DO NOT CONSIDER IT NECESSARY TO RESOLVE WHETHER THAT MACHINE MAY ALSO HAVE BEEN REJECTED FOR OTHER REASONS.
WE HAVE TAKEN NOTE OF THE STATEMENTS BY CALCOMP THAT AT A PREPROPOSAL CONFERENCE THE MAJORITY OF DRAWINGS AND MAPS IT WAS SHOWN COULD BE PRODUCED ON THEIR MACHINE AND FOR THAT REASON CALCOMP BELIEVED ITS MACHINE WOULD BE ACCEPTABLE. HOWEVER, WHILE IT IS REGRETTABLE THAT THIS MAY HAVE MISLED CALCOMP, WHERE THE REQUEST FOR PROPOSALS EXPRESSLY REQUIRED A 5' X 8' DRAFTING TABLE CALCOMP SHOULD HAVE, PRIOR TO SUBMITTING A PROPOSAL NOT MEETING THAT REQUIREMENT, INQUIRED AS TO THE ACCEPTABILITY OF THE SMALLER TABLE.