B-171582(1), MAY 27, 1971

B-171582(1): May 27, 1971

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THERE IS NO BASIS TO QUESTION THE CONTRACTING OFFICER'S CONCLUSION THAT THE FAILURE TO FURNISH CERTAIN DISCRIPTIVE LITERATURE AND THE FAILURE TO OFFER AN "ECHO SUPPRESSOR" WHICH MET THE INTERCHANGEABILITY REQUIREMENT EVIDENCED NON-COMPLIANCE WITH AN ESSENTIAL ELEMENT OF THE SPECIFICATIONS AND THAT SUCH OMISSION COULD NOT BE WAIVED AS A MINOR INFORMALITY. INC.: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO STELMA INCORPORATED (STELMA) UNDER INVITATION FOR BIDS (IFB) NO. WHICH WAS MAILED TO ALL COMPANIES. WHEN BIDS WERE OPENED ON DECEMBER 17. THREE BIDS WERE RECEIVED AS FOLLOWS: ADC PRODUCTS (ADC) $540. ON THE BASIS OF THOROUGH QUESTIONING OF TECHNICAL PERSONNEL THE BOARD CONCLUDED THAT THE BIDS OF ADC AND NORTHERN WERE NONRESPONSIVE.

B-171582(1), MAY 27, 1971

BID PROTEST - BID RESPONSIVENESS - DISCRIPTIVE LITERATURE DECISION DENYING PROTEST AGAINST AWARD OF CONTRACT TO STELMA INCORPORATED, UNDER AN IFB ISSUED BY THE LEXINGTON BLUE GRASS ARMY DEPOT FOR SPECIALIZED LINE CONDITIONING EQUIPMENT. THERE IS NO BASIS TO QUESTION THE CONTRACTING OFFICER'S CONCLUSION THAT THE FAILURE TO FURNISH CERTAIN DISCRIPTIVE LITERATURE AND THE FAILURE TO OFFER AN "ECHO SUPPRESSOR" WHICH MET THE INTERCHANGEABILITY REQUIREMENT EVIDENCED NON-COMPLIANCE WITH AN ESSENTIAL ELEMENT OF THE SPECIFICATIONS AND THAT SUCH OMISSION COULD NOT BE WAIVED AS A MINOR INFORMALITY.

TO NORTHERN RADIO COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO STELMA INCORPORATED (STELMA) UNDER INVITATION FOR BIDS (IFB) NO. DAAG22 -71-B-0053 ISSUED BY THE LEXINGTON BLUE GRASS ARMY DEPOT (LBAD).

THE INSTANT SOLICITATION, ISSUED ON NOVEMBER 20, 1970, REQUESTED BIDS FOR HIGHLY SPECIALIZED LINE CONDITIONING EQUIPMENT, WHICH WAS MAILED TO ALL COMPANIES, WITH 6 ADDITIONAL FIRMS REQUESTING A COPY OF THE INVITATION. WHEN BIDS WERE OPENED ON DECEMBER 17, 1970, THREE BIDS WERE RECEIVED AS FOLLOWS:

ADC PRODUCTS (ADC) $540,676.31

NORTHERN RADIO COMPANY, INC. (NORTHERN) 567,977.00

STELMA 674,255.00

ON DECEMBER 22, 1970, THE BOARD OF AWARDS MET TO REVIEW IN DETAIL THE BIDS AS SUBMITTED. ON THE BASIS OF THOROUGH QUESTIONING OF TECHNICAL PERSONNEL THE BOARD CONCLUDED THAT THE BIDS OF ADC AND NORTHERN WERE NONRESPONSIVE, SINCE THEY DID NOT MEET THE TECHNICAL REQUIREMENTS OF THE SOLICITATION, AND THAT THE ONLY COMPLETELY RESPONSIVE BID WAS THE ONE RECEIVED FROM STELMA. CONSEQUENTLY, AWARD WAS MADE TO THAT FIRM ON JANUARY 12, 1971.

PRIOR TO ISSUANCE OF THE SOLICITATION, AND PURSUANT TO PARAGRAPH 2 202.5(D)(2) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), A WRITTEN DETERMINATION WAS MADE BY THE CONTRACTING OFFICER THAT DESCRIPTIVE LITERATURE WAS REQUIRED SO AS TO SHOW WHETHER THE PRODUCTS OFFERED CONFORMED TO THE SPECIFICATIONS. SPECIFICALLY, PARAGRAPHS 28C(2)(A) AND (B) OF THE SOLICITATION STATED:

"(2) REQUIREMENT FOR DESCRIPTIVE LITERATURE (1960 OCT) (ASPR

2-202.5(D)(2)

"(A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO THE DESIGN, PERFORMANCE, AND LAYOUT OF THE INDIVIDUAL COMPONENTS WITHIN EACH RACK.

"(B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT IF THE MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE, IT MAY BE CONSIDERED UNDER THE PROVISIONS FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS."

THE BID OF NORTHERN WAS CONSIDERED TO BE NONRESPONSIVE BECAUSE NO FRONT AND SIDE ELEVATION DRAWINGS FOR EQUIPMENT RACKS WITH UNIQUE EQUIPMENT SHELF CONFIGURATION WERE FURNISHED; NO LITERATURE WAS PROVIDED TO SHOW THE PROPOSED WIRING DIAGRAM AND SCHEMATIC OF THE UNIVERSAL SHELF TO THE TERMINAL BLOCKS AT THE TOP OF THE EQUIPMENT RACKS; NOTHING WAS CONTAINED IN THE BID TO INDICATE THAT THE SF SIGNALING UNIT AND THE ECHO SUPPRESSOR WOULD OPERATE AT THE REQUIRED TRANSMISSION LEVELS OF SENDING AND RECEIVING; AND (CONTRARY TO WHAT WE UNDERSTAND TO BE ONE OF THE MOST IMPORTANT REQUIREMENTS OF THE SOLICITATION) YOUR FIRM DID NOT OFFER THE ECHO SUPPRESSOR AND DELAY EQUALIZER AS "UNIVERSAL MODULES" MEETING THE REQUIRED INTERCHANGEABILITY CONCEPT AS OUTLINED AT PARAGRAPH IV OF THE SPECIFICATIONS.

YOU DISAGREE WITH THE ENGINEERING EVALUATION TEAM'S DETERMINATION THAT YOUR BID WAS NONRESPONSIVE, BECAUSE YOU BELIEVE THE SPECIFICATIONS REQUIRED THAT, WITHIN THE UNIVERSAL MODULE CONCEPT, IT SHOULD BE POSSIBLE TO PHYSICALLY INTERCHANGE ANY OF THE UNIVERSAL MODULES ON A ONE-FOR-ONE BASIS; E.G., A PAD SHOULD BE EXCHANGEABLE WITH A DELAY EQUALIZER OR IT SHOULD FIT IN THE SAME SPACE. IN THIS CONNECTION, THE PROCURING AGENCY CONTENDS THAT THE INTENT OF THE SPECIFICATION WAS THAT ANY PRINTED CIRCUIT CARD SHOULD BE INTERCHANGEABLE PHYSICALLY WITH ANY OTHER PRINTED CIRCUIT CARD, AND IT SHOULD HAVE THE SAME FUNCTIONS ON THE SAME PINS AT THE REAR OF THE CARD. IT WAS FOUND THAT YOU DID NOT CURRENTLY OFFER A DELAY EQUALIZER OR AN ECHO SUPPRESSOR AS PART OF YOUR PRODUCT LINE, AND IT WAS CONCLUDED THAT TO DESIGN AND DEVELOP THEM IN ANY NUMBER OF PRINTED CIRCUIT CARD CONFIGURATIONS THAT WOULD FIT IN YOUR UNIVERSAL SHELF, WOULD BE BOTH TIME CONSUMING AND EXPENSIVE. ACCORDINGLY, IT WAS CONCLUDED THAT YOUR BID WAS NONRESPONSIVE ON THIS BASIS.

YOU SUGGEST THAT STELMA'S BID WAS ALSO NONRESPONSIVE BECAUSE IT FAILED TO MEET THE REQUIREMENTS OF INTERCHANGEABILITY REQUIRED BY PARAGRAPH IV OF THE SPECIFICATIONS. SPECIFICALLY, YOU URGE THAT STELMA DID NOT MEET THE REQUIREMENTS OF PARAGRAPH III OF THE SPECIFICATION WHICH PROVIDED:

"A UNIVERSAL TYPE EQUIPMENT SHELF SHALL BE PROVIDED. THE SHELF SHALL BE A MAXIMUM OF 7 INCHES IN HEIGHT AND SHALL ACCOMMODATE AT LEAST TWELVE (12) PRINTED CIRCUIT BOARD TYPE MODULES IN A VERTICAL PLANE. ANY OF THE MODULES LISTED BELOW SHALL BE CAPABLE OF BEING INSERTED INTO ANY OF THE MODULE POSITIONS WITHIN THE SHELF." IN EXPLANATION OF THIS CONTENTION YOU STATE:

"THESE STATEMENTS MEAN THAT, FOR EXAMPLE, IN THE 12-CHANNEL SHELF, ANY SINGLE MODULE COULD BE EXTRACTED AND A DELAY EQUALIZER INSERTED IN ITS PLACE. UNDER THE STELMA PROPOSAL, THIS IS A PHYSICAL IMPOSSIBILITY SINCE IT WOULD BE NECESSARY TO EXTRACT SIX OTHER MODULES TO ACCOMMODATE A SINGLE STELMA DELAY EQUALIZER." IN ANSWER TO YOUR ANALYSIS OF STELMA'S BID THE ADMINISTRATIVE REPORT FURNISHED OUR OFFICE STATED:

"STELMA'S DELAY EQUALIZER IS COMPOSED OF 6 PRINTED CIRCUIT CARDS AND THE ECHO SUPPRESSOR IS COMPOSED OF 2 SUCH CARDS. THE CARDS THEMSELVES ARE INTERCHANGEABLE. THEIR UNITS ARE WITHIN THE FRAME WORK OF THE UNIVERSAL CONCEPT AND SATISFY THE INTENT OF THE TECHNICAL SPECIFICATION OF THE IFB."

YOU ALSO ALLEGED THAT STELMA MADE CONTACT WITH THE EVALUATION TEAM PRIOR TO BID OPENING SO AS TO OBTAIN A DECISION AS TO WHETHER ITS ALLEGED INTENDED VARIATIONS WERE WITHIN THE SCOPE OF THE INTENT OF THE SPECIFICATION.

BOTH THE COGNIZANT ENGINEERS AND CONTRACTING OFFICER DENY THAT ANY INTENDED VARIATIONS WERE DISCUSSED WITH STELMA PRIOR TO BID OPENING AND, AS STATED ABOVE, FOUND THAT STELMA'S BID MET THE SPECIFICATIONS IN EVERY RESPECT. THERE HAS BEEN NO EVIDENCE SUBMITTED WHICH OVERCOMES THE FACTS AS SET FORTH BY THE AGENCY IN ITS REPORT.

YOU ALSO URGE THAT A TELEGRAM RECEIVED BY LBAD CLARIFYING YOUR TECHNICAL PROPOSAL WAS NOT IMMEDIATELY FORWARDED TO THE EVALUATION TEAM, CAUSING THE TEAM'S DECISION TO BE MADE WITHOUT SUCH INFORMATION. THE TELEGRAM IN QUESTION WAS DATED DECEMBER 22, 1970, AND WAS RECEIVED THE NEXT DAY BY LBAD, SOME 6 DAYS AFTER BID OPENING. WHILE THE TELEGRAM PURPORTS TO CLARIFY YOUR DESCRIPTIVE LITERATURE, ITS EFFECT IS TO SUPPLEMENT YOUR BID AS SUBMITTED. IT IS THEREFORE APPARENT THAT TO HAVE ACCEPTED AND CONSIDERED SUCH INFORMATION WOULD BE TANTAMOUNT TO PERMITTING YOUR FIRM TO CHANGE OR SUPPLEMENT YOUR BID AFTER BID OPENING WHICH IS, OF COURSE, UNAUTHORIZED. 35 COMP. GEN. 98 (1955); 36 COMP. GEN. 415 (1956).

CONCERNING THE RESPONSIVENESS OF YOUR BID AS SUBMITTED, IT IS OUR POSITION THAT THE CONTRACTING AGENCY IS PRIMARILY RESPONSIBLE FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT, AND THERE IS NO REQUIREMENT THAT THE GOVERNMENT PURCHASE EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE AGENCY, MEETS ITS NEEDS. FROM THE RECORD BEFORE US, WE FIND NO BASIS TO QUESTION THE CONTRACTING OFFICER'S CONCLUSIONS THAT BY FAILING TO SUBMIT THE MATERIAL IN QUESTION WITH YOUR BID YOU DID NOT COMPLY WITH AN ESSENTIAL REQUIREMENT OF THE SPECIFICATIONS, AND THAT SUCH OMISSION COULD NOT HAVE BEEN PROPERLY WAIVED AS A MINOR INFORMALITY.

IT IS ALSO YOUR CONTENTION THAT THE TECHNICAL CHARACTERISTICS CONTAINED IN THE SPECIFICATIONS WERE COPIED FROM PRODUCT DATA SHEETS PUBLISHED BY STELMA, AND THAT SUCH CHARACTERISTICS WERE NOT SPECIFIED AS "OR EQUAL" AS REQUIRED BY ASPR 1-1206 AND 1-1206.1(A). THE CITED ASPR PARAGRAPHS DO REQUIRE USE OF THE WORDS "OR EQUAL" WHEN IT IS DETERMINED THAT PARTICULAR FEATURES OF A PRODUCT ARE PECULIAR TO ONE COMPANY. HOWEVER, IT IS REPORTED THAT THE TECHNICAL CHARACTERISTICS AND EQUIPMENT PARAMETERS CONTAINED IN THE IFB WERE DEVELOPED FROM WORK STATEMENTS FROM THE UNITED STATES ARMY STRATEGIC COMMUNICATIONS COMMAND'S DRAFT C OF PROPOSED MILITARY SPECIFICATIONS NO. MIL STD 894; THAT THE AVAILABLE TECHNICAL DATA SHEETS OF MANUFACTURERS CONSIDERED TO HAVE THE POTENTIAL OF PRODUCING THE DESIRED ITEMS WERE REVIEWED AND COMPARED TO THE CRITERIA CONTAINED IN THE SPECIFICATION DRAFT; AND THAT THE TECHNICAL REQUIREMENTS OF THE IFB WERE NOT CONSIDERED TO BE PROHIBITIVE FOR OTHER MANUFACTURERS TO MEET, ALTHOUGH ALL POTENTIAL SUPPLIERS WOULD HAVE TO SLIGHTLY MODIFY THEIR STANDARD LINE TO SOME EXTENT.

WHILE IT IS THE DUTY OF OUR OFFICE TO DETERMINE WHETHER SPECIFICATIONS AS WRITTEN ARE UNDULY RESTRICTIVE OF COMPETITION, THE FACT THAT A PARTICULAR BIDDER 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. 33 COMP. GEN. 586 (1954). THERE IS NO REQUIREMENT THAT THE GOVERNMENT PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED, AND BIDDERS SHOULD NOT BE PERMITTED TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE OPINION OF THE PROCURING ACTIVITY, REASONABLY MEET THE AGENCY'S NEED. 36 COMP. GEN. 251 (1956).

IN VIEW OF THE FOREGOING, AND SINCE THERE HAS BEEN NO EVIDENCE PRESENTED TO SUPPORT A CONCLUSION THAT THE SPECIFICATIONS PRECLUDED ALL BUT THE SUCCESSFUL BIDDER FROM MEETING THE REQUIREMENTS SET OUT THEREIN, OR THAT REJECTION OF YOUR BID WAS BASED ON PERSONAL PREFERENCE OR FAVORITISM, YOUR PROTEST MUST BE DENIED.

THE ENCLOSURES FURNISHED WITH YOUR LETTER OF MARCH 23, 1971, ARE RETURNED.