B-171462, FEB 8, 1971

B-171462: Feb 8, 1971

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INC.: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 10. PARAGRAPH (B) (1) OF SECTION C.23 ADMONISHED BIDDERS THAT: " *** THE EVALUATION OF PROPOSALS AND THE DETERMINATION AS TO THE EQUALITY OF THE PRODUCT OFFERED SHALL BE THE RESPONSIBILITY OF THE GOVERNMENT AND WILL BE BASED ON INFORMATION FURNISHED BY THE OFFEROR OR IDENTIFIED IN HIS PROPOSAL. AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY *** TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE. TWO BIDS WERE ANNOUNCED. VELONEX WAS LOW BIDDER WITH A PRICE OF $3. YOUR BID WAS $3. YOU OBJECT SPECIFICALLY TO THE INCLUSION IN VELONEX'S DESCRIPTIVE LITERATURE OF THE NOTATION "ALL SPECIFICATIONS ARE GIVEN WHEN OPERATING INTO A 200 OHM RESISTIVE LOAD.

B-171462, FEB 8, 1971

BID PROTEST - SUPERIOR PRODUCT DENIAL OF PROTEST BY COBER ELECTRONICS, INC., AGAINST CONTRACT FOR SUPPLY OF TWO HIGH POWER PULSE GENERATORS UNDER SOLICITATION BY U.S. NAVAL ORDNANCE LABORATORY AND AWARD TO VELONEX COMPANY. THE PUBLIC ADVERTISING STATUTES DO NOT AUTHORIZE AN AGENCY TO PAY A HIGHER PRICE FOR AN ARTICLE WHICH MAY BE SUPERIOR TO ONE THAT ADEQUATELY MEETS ITS NEEDS; THEREFORE, WHERE THE LOW BID MEETS THE MINIMUM REQUIREMENTS PRESCRIBED IN THE IFB, THE FACT THAT THE PRODUCT OFFERED BY PROTESTANT MAY BE SUPERIOR TO THAT OFFERED BY LOW BIDDER DOES NOT PRECLUDE CONSIDERATION OF THE LOW BID, AND THE PROTEST MUST BE DENIED.

TO COBER ELECTRONICS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 10, 1970, PROTESTING THE PROPOSED AWARD BY THE U.S. NAVAL ORDNANCE LABORATORY, SILVER SPRING, MARYLAND, OF A CONTRACT TO VELONEX COMPANY FOR THE SUPPLY OF TWO HIGH POWER PULSE GENERATORS PURSUANT TO IFB N60921-71-B-0063.

THE SOLICITATION DELINEATED THE TWO GENERATORS REQUESTED AS "COBER MODEL 605P OR EQUAL" AND "COBER MODEL 605P OR EQUAL WITH OUTPUT TRANSFORMER FOR 200 VOLTS, 100 AMPERES."

SECTION C.23 OF THE SOLICITATION ADDRESSED ITSELF TO THE REQUIREMENTS IMPOSED UPON BIDDERS UNDER THE "BRAND NAME OR EQUAL CLAUSE" SET OUT IN ARMED SERVICES PROCUREMENT REGULATION 1-1206.5. PARAGRAPH (B) (1) OF SECTION C.23 ADMONISHED BIDDERS THAT:

" *** THE EVALUATION OF PROPOSALS AND THE DETERMINATION AS TO THE EQUALITY OF THE PRODUCT OFFERED SHALL BE THE RESPONSIBILITY OF THE GOVERNMENT AND WILL BE BASED ON INFORMATION FURNISHED BY THE OFFEROR OR IDENTIFIED IN HIS PROPOSAL, AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY *** TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE OFFEROR MUST FURNISH AS A PART OF HIS PROPOSAL ALL DESCRIPTIVE MATERIAL *** NECESSARY FOR THE PURCHASING ACTIVITY TO (I) DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE REQUEST FOR PROPOSALS AND (II) ESTABLISH EXACTLY WHAT THE OFFEROR PROPOSES TO FURNISH *** ."

UPON OPENING OF SUBJECT IFB ON NOVEMBER 23, 1970, TWO BIDS WERE ANNOUNCED. VELONEX WAS LOW BIDDER WITH A PRICE OF $3,840 FOR THE FIRST ITEM AND $4,110 FOR THE SECOND, AND AN AGGREGATE BID OF $7,950. YOUR BID WAS $3,990 AND $4,315 FOR THE TWO RESPECTIVE ITEMS, TOTALLING $8,305.

YOU CONTEND THAT THE DESCRIPTIVE LITERATURE WHICH VELONEX SUBMITTED PURSUANT TO SECTION C.23 (ABOVE) RESTRICTED ITS BID AND RENDERED IT PATENTLY NONRESPONSIVE, AND THAT AN AWARD SHOULD THEREFORE BE MADE TO YOU AS THE LOWEST RESPONSIVE BIDDER.

YOU OBJECT SPECIFICALLY TO THE INCLUSION IN VELONEX'S DESCRIPTIVE LITERATURE OF THE NOTATION "ALL SPECIFICATIONS ARE GIVEN WHEN OPERATING INTO A 200 OHM RESISTIVE LOAD," SINCE THE REQUIREMENTS OF THE SOLICITATION DO NOT RESTRICT PERFORMANCE SOLELY TO A 200 OHM RESISTIVE LOAD. YOU STATE THAT SINCE THE COBER MODEL 605P MAKES NO SUCH RESTRICTION, IT IS A SUPERIOR PRODUCT WITH A GREATER OPERATING RANGE, AND YOU CONTEND THAT IF YOUR BID COULD HAVE INCLUDED THE SAME RESTRICTIVE FEATURE AS COBER'S IT WOULD HAVE ENTAILED A REDUCED PRICE.

PARAGRAPHS F.1.2 AND F.2.1 OF THE SOLICITATION SPECIFY MAXIMUM OUTPUT VOLTAGES OF 2000 VOLTS, AND PARAGRAPHS F.1.3 AND F.2.2 CALL FOR MAXIMUM OUTPUT CURRENTS OF 10 AMPERES. THE NAVAL ORDNANCE LABORATORY TECHNICAL PERSONNEL POINT OUT THAT BY UTILIZING COMMON ENGINEERING KNOWLEDGE AND PRACTICES, A LOAD IMPEDANCE OF 200 OHMS IS EASILY DERIVED BY DIVIDING THE 2000 VOLT MAXIMUM SPECIFIED BY THE SOLICITATION BY THE 10 AMPERES MAXIMUM SPECIFIED BY THE SOLICITATION. IT IS THEREFORE THEIR OPINION THAT THE STIPULATION IN VELONEX'S LITERATURE DID NOT CONSTITUTE A RESTRICTIVE DEFINITION OF THE SPECIFICATIONS BUT MERELY ONE OF REDUNDANCE OR SUPERFLUITY, AND THEY FURTHER ADVISED THAT VELONEX'S BID WAS TECHNICALLY ACCEPTABLE IN ALL OTHER RESPECTS.

IT HAS LONG BEEN RECOGNIZED THAT THE FACTUAL DETERMINATION AS TO WHETHER THAT WHICH IS OFFERED BY THE BIDDER CONFORMS TO THE SPECIFICATIONS IS WITHIN THE PROVINCE OF THE CONTRACTING AGENCY. 17 COMP. GEN. 554, 557 (1938). MORE RECENTLY WE HAVE MAINTAINED THAT A "CONFLICT OF TECHNICAL OPINIONS CANNOT BE RESOLVED BY OUR OFFICE. TO DO SO WOULD INVOLVE OUR OFFICE AS AN ARBITER OF TECHNICAL DISPUTES AS TO WHICH WE DO NOT HAVE THE NECESSARY EXPERTISE. WE THEREFORE ARE REQUIRED TO RELY UPON THE JUDGMENT OF ENGINEERING PERSONNEL OF THE PROCURING AND/OR REQUESTING ACTIVITY." 169007, JULY 27, 1970.

RENDERING FURTHER SUPPORT TO THE CONCLUSION OF THE NAVAL ORDNANCE LABORATORY PERSONNEL IS THE FACT THAT YOUR OWN INSTRUCTION MANUAL FOR THE MODEL 605 HIGH POWER PULSE GENERATOR STIPULATES THAT A 200 OHM LOAD SHOULD BE USED WHEN PERFORMING TESTS ON YOUR GENERATOR (SEE PP. 4, 22 AND 25 OF THE MANUAL).

YOUR ALLEGATION THAT THE COBER MODEL 650P HAS A GREATER OPERATING TOLERANCE IS IMMATERIAL, SINCE THE TECHNICAL PERSONNEL HAVE DETERMINED THAT VELONEX'S MODEL IS RESPONSIVE TO EVERY SPECIFICATION SET FORTH IN THE SOLICITATION. WHERE, AS IN THIS CASE, THE LOW BID MEETS THE MINIMUM REQUIREMENTS PRESCRIBED IN AN INVITATION FOR BIDS, THE FACT THAT THE PRODUCT OFFERED BY ANOTHER BIDDER MAY BE SUPERIOR TO THAT OFFERED BY THE LOW BIDDER DOES NOT PRECLUDE CONSIDERATION OF THE LOW BID. THE PROCUREMENT AGENCIES ARE ONLY REQUIRED TO PREPARE SPECIFICATIONS DESCRIBING THEIR ACTUAL NEEDS, RATHER THAN THE MAXIMUM QUALITY OBTAINABLE, SINCE THE PUBLIC ADVERTISING STATUTES DO NOT AUTHORIZE AN AGENCY TO PAY A HIGHER PRICE FOR AN ARTICLE WHICH MAY BE SUPERIOR TO ONE THAT ADEQUATELY MEETS ITS NEEDS. 48 COMP. GEN. 403 (1968).

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.