B-171582(2), MAY 27, 1971

B-171582(2): May 27, 1971

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BECAUSE PROTESTANT FAILED TO FURNISH CERTAIN DISCRIPTIVE LITERATURE REQUIRED BY THE IFB AND BECAUSE SOME LITERATURE FURNISHED WAS NOT IN ACCORDANCE WITH THE REQUIREMENTS OF THE SPECIFICATIONS. THE BID WAS CONSIDERED NONRESPONSIVE. IT IS THE RESPONSIBILITY OF THE CONTRACTING AGENCY TO DRAFT SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND THE FACT THAT A PARTICULAR BIDDER IS UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THESE NEEDS IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. TO ADC PRODUCTS: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO STELMA INCORPORATED (STELMA) UNDER INVITATION FOR BIDS (IFB) NO.

B-171582(2), MAY 27, 1971

BID PROTEST - DISCRIPTIVE LITERATURE - RESTRICTIVE SPECIFICATIONS DECISION DENYING PROTEST BY LOW BIDDER AGAINST AWARD OF CONTRACT TO STELMA INCORPORATED, THIRD LOW BIDDER, UNDER AN IFB ISSUED BY THE LEXINGTON BLUE GRASS ARMY DEPOT FOR SPECIALIZED LINE CONDITIONING EQUIPMENT. BECAUSE PROTESTANT FAILED TO FURNISH CERTAIN DISCRIPTIVE LITERATURE REQUIRED BY THE IFB AND BECAUSE SOME LITERATURE FURNISHED WAS NOT IN ACCORDANCE WITH THE REQUIREMENTS OF THE SPECIFICATIONS, THE BID WAS CONSIDERED NONRESPONSIVE. IT IS THE RESPONSIBILITY OF THE CONTRACTING AGENCY TO DRAFT SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND THE FACT THAT A PARTICULAR BIDDER IS UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THESE NEEDS IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE.

TO ADC PRODUCTS:

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 AND ON THE BASIS OF THOROUGH QUESTIONING OF TECHNICAL PERSONNEL CONCLUDED THAT THE BIDS OF ADC AND NORTHERN WERE NONRESPONSIVE SINCE THEIR BIDS 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.

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 ADC WAS CONSIDERED TO BE NONRESPONSIVE BECAUSE OF ITS FAILURE TO FURNISH CERTAIN DESCRIPTIVE LITERATURE REQUIRED BY THE IFB, AND BECAUSE SOME OF THE DESCRIPTIVE LITERATURE FURNISHED WAS NOT IN ACCORDANCE WITH THE REQUIREMENTS OF THE SPECIFICATIONS, INCLUDING THE REQUIRED INTERCHANGEABILITY CONCEPT AS OUTLINED IN PARAGRAPH IV OF THE SPECIFICATIONS. YOU HAVE HERETOFORE BEEN FURNISHED THE SPECIFIC DETAILS TO SUPPORT SUCH A DETERMINATION.

WHILE YOU ADMIT THAT "TYPICAL ILLUSTRATIONS WERE FURNISHED IN LIEU OF SPECIFICS IN EACH CASE" YOU CONTEND THAT THE EVALUATION OF THE TECHNICAL RESPONSE WAS HYPER-CRITICAL FOR THIS TYPE OF SOLICITATION, AND THAT PARAGRAPH E(1) OF ITEM 28 SPECIFIED THAT AWARD WOULD BE MADE TO THE BIDDER OFFERING THE LOWEST AGGREGATE PRICE WITHOUT REFERENCE TO TECHNICAL EVALUATION. WHILE THAT PARAGRAPH MAKES NO REFERENCE TO TECHNICAL EVALUATION OF A BIDDER'S DESCRIPTIVE LITERATURE OUTLINING HIS TECHNICAL APPROACH IN MEETING THE REQUIREMENTS OF THE SPECIFICATIONS, PARAGRAPH 10 OF STANDARD FORM 33A, PROVIDES THAT THE CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE OFFEROR WHOSE OFFER, CONFORMING TO THE SOLICITATION, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.

IT IS AN ELEMENTARY PRINCIPLE OF GOVERNMENT CONTRACT LAW THAT THE UNITED STATES IS NOT REQUIRED TO PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE PROCURING ACTIVITY, REASONABLY MEET THE AGENCY'S NEED. 36 COMP. GEN. 251 (1956). WE HAVE ALSO HELD 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 OPINION OF THE AGENCY, MEETS SUCH NEEDS. FROM THE RECORD BEFORE US, WE FIND NO VALID BASIS ON WHICH TO QUESTION THE CONTRACTING OFFICER'S CONCLUSIONS THAT YOUR BID DID NOT COMPLY WITH ESSENTIAL REQUIREMENTS OF THE SPECIFICATIONS, AND THAT SUCH FAILURE COULD NOT PROPERLY HAVE BEEN WAIVED AS A MINOR INFORMALITY.

IT IS ALSO YOUR CONTENTION THAT THE TECHNICAL CHARACTERISTICS CONTAINED IN THE SPECIFICATIONS ARE EXTRACTS FROM PUBLISHED STELMA PRODUCT LITERATURE, WHICH WERE NOT SPECIFIED AS "OR EQUAL". PARAGRAPHS 1-1206 AND 1-1206.1(A) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), REQUIRE THE 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 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). BASED UPON THE FOREGOING, WE ARE UNABLE TO CONCLUDE THAT THE FEATURES SPECIFIED WERE PECULIAR TO STELMA'S PRODUCTS.

YOU ALSO CHALLENGE THE ABILITY OF STELMA TO MEET THE DELIVERY SCHEDULE REQUIREMENTS. HOWEVER, SINCE THE DEPARTMENT OF THE ARMY ADVISES THAT STELMA IS PRESENTLY MEETING THE REQUIRED DELIVERY SCHEDULE, IT WOULD APPEAR THAT THIS PORTION OF YOUR PROTEST REQUIRES NO FURTHER CONSIDERATION.

YOU ALSO CONTEND THAT THE PROCURING ACTIVITY FAILURE TO ANSWER SOME OF YOUR QUESTIONS CONCERNING THE TECHNICAL SPECIFICATION PRIOR TO BID OPENING PREVENTED ADC FROM SOLICITING THE HELP OF THE SMALL BUSINESS ADMINISTRATION (SBA) IN ARRANGING A MEETING TO DISCUSS SUCH QUESTIONS PRIOR TO AWARD. IN THIS CONNECTION, IT IS REPORTED THAT TWO EARLIER INVITATIONS WERE CANCELLED IN AN EFFORT TO MAKE ALL KNOWN NECESSARY CLARIFICATIONS TO THE SPECIFICATIONS AND, AS INDICATED ABOVE, THE REQUIREMENTS OF THE IFB WERE NOT CONSIDERED TO BE PROHIBITIVE FOR ALL BUT THE SUCCESSFUL BIDDER TO MEET. IN ANY EVENT, SINCE SBA'S JURISDICTION APPEARS TO BE LIMITED TO MATTERS RELATING TO THE RESPONSIBILITY OF BIDDERS, WE FAIL TO SEE HOW IT COULD HAVE PLAYED ANY ROLE WHATSOEVER IN DETERMINING WHETHER YOUR BID WOULD, OR WOULD NOT, BE RESPONSIVE TO THE REQUIREMENTS OF THE IFB.

FOR THE FOREGOING REASONS, YOUR PROTEST IS DENIED.