B-171744, MAR 19, 1971

B-171744, MAR 19, 1971

BID PROTEST - RESTRICTIVE SPECIFICATIONS DECISION HOLDING THAT CERTAIN SPECIFICATIONS MADE A PART OF AN IFB ISSUED BY THE AIR FORCE SECURITY SERVICE, SAN ANTONIO, TEXAS FOR FURNISHING AND INSTALLING AN ELECTRONIC VIBRATION SYSTEM, ARE THE RESPONSIBILITY OF THE PROCURING ACTIVITY AND THERE IS NO BASIS ON WHICH TO DISTURB THE AWARD TO MB ELECTRONICS. ALTHOUGH ONLY ONE BID WAS RECEIVED ON THE INSTANT SOLICITATION, THIS DOES NOT NECESSARILY REQUIRE THE CONCLUSION THAT THE SPECIFICATIONS WERE MORE RESTRICTIVE THAN NECESSARY. FURTHER THE CONTRACTING AGENCY IS PRIMARILY RESPONSIBLE FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND THERE IS NOTHING IN THE RECORD WHICH WOULD JUSTIFY QUESTIONING THE CONTRACTING OFFICER'S CONCLUSION.

TO LING ELECTRONICS:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 20, 1971, WITH ENCLOSURES, PROTESTING THE SPECIFICATIONS MADE A PART OF INVITATION FOR BIDS NO. F41621-71-B-0139, ISSUED OCTOBER 19, 1970, BY THE AIR FORCE SECURITY SERVICE, CONTRACTS DIVISION, SAN ANTONIO, TEXAS, FOR FURNISHING AND INSTALLING AN ELECTRONIC VIBRATION SYSTEM.

YOU SUBMITTED COPIES OF YOUR CORRESPONDENCE WITH THE CONTRACTING OFFICER RELATIVE TO THE SPECIFICATIONS WHICH YOU CONSIDERED TO BE RESTRICTIVE. YOU REQUESTED AN OPPORTUNITY TO SUBMIT A DETAILED RESPONSE TO THE CONTRACTING OFFICER'S CONTENTIONS AND IN OUR REPLY OF JANUARY 26, 1971, YOU WERE ADVISED THAT YOU COULD SUBMIT YOUR DETAILED RESPONSE TO THE CONTRACTING OFFICER'S FINDINGS BY LETTER TO OUR OFFICE. HOWEVER, NO FURTHER COMMUNICATION CONCERNING YOUR PROTEST HAS BEEN RECEIVED FROM YOUR COMPANY. HOWEVER, WE HAVE RECEIVED AN ADMINISTRATIVE REPORT ON THE PROTEST FROM THE DEPARTMENT OF THE AIR FORCE.

YOU CONTENDED IN A LETTER DATED OCTOBER 26, 1970, THAT PORTIONS OF THE TECHNICAL DESCRIPTIONS FOR THE DESIRED ITEMS OF ELECTRONIC VIBRATION EQUIPMENT WERE TOO RESTRICTIVE. THE CONTRACTING OFFICER SENT LETTERS DATED OCTOBER 30, 1970, TO ALL POTENTIAL BIDDERS FOR THE PURPOSE OF CLARIFYING SOME OF THE DESCRIPTIVE LANGUAGE IN THE INVITATION FOR BIDS. THIS WAS FOLLOWED BY THE ISSUANCE OF AN AMENDMENT TO THE INVITATION FOR BIDS WHICH CHANGED A PORTION OF THE TECHNICAL DESCRIPTION FOR THE ELECTRONIC VIBRATION SYSTEM, AND EXTENDED THE BID OPENING DATE FROM NOVEMBER 3, 1970, TO NOVEMBER 13, 1970. IN A LETTER DATED NOVEMBER 3, 1970, THE CONTRACTING OFFICER FURNISHED ADDITIONAL INFORMATION TO YOUR COMPANY REGARDING THE REQUIREMENTS OF THE INVITATION FOR BIDS. IN A REPLY OF NOVEMBER 11, 1970, YOU INDICATED THAT YOU WOULD NOT SUBMIT A BID AND THAT, IN YOUR OPINION, CERTAIN OF THE REQUIREMENTS OF THE INVITATION FOR BIDS CLEARLY SPECIFY EQUIPMENT MANUFACTURED BY MB ELECTRONICS, NEW HAVEN, CONNECTICUT.

WHEN THE INVITATION FOR BIDS WAS ISSUED, THE CONTRACTING OFFICER CONSIDERED THAT AGAC-DERRITRON, INCORPORATED, ALEXANDRIA, VIRGINIA, AND POSSIBLY OTHER FIRMS IN ADDITION TO MB ELECTRONICS COULD MEET THE ADVERTISED SPECIFICATIONS. HOWEVER, ONLY MB ELECTRONICS SUBMITTED A BID AND CONTRACT NO. F41621-71-C-0075 WAS AWARDED TO THAT COMPANY ON JANUARY 13, 1971. THE CONTRACT AWARD COVERED FOUR ITEMS OF THE INVITATION FOR BIDS, NAMELY, ITEMS NOS. 1, 4, 7 AND 10. ITEM NO. 1 WAS SHIPPED FROM NEW HAVEN, CONNECTICUT, ON FEBRUARY 9, 1971, AND THE AIR FORCE UNDERSTOOD, AS OF FEBRUARY 10, 1971, THAT THE CONTRACTOR WOULD BE READY TO SHIP THE REMAINING THREE ITEMS OF THE CONTRACT ON FEBRUARY 17, 1971. WE HAVE SINCE BEEN ADVISED INFORMALLY THAT ALL ITEMS HAVE BEEN SHIPPED AND INSTALLATION IS IN THE FINAL STAGES OF COMPLETION.

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 CONTRACTING AGENCY, MEET ITS NEEDS. SEE 36 COMP. GEN. 251, 252 (1956). THE DEPARTMENT OF THE AIR FORCE CONSIDERS THAT THE SPECIFICATIONS IN THIS CASE WERE NOT UNDULY RESTRICTIVE AND PERMITTED ADEQUATE COMPETITION. THE REASONS SUPPORTING THIS CONCLUSION ARE SET OUT IN DETAIL IN THE CONTRACTING OFFICER'S LETTER OF DECEMBER 21, 1970, IN RESPONSE TO YOUR LETTER OF NOVEMBER 11, 1970. WE BELIEVE THAT THE CONTRACTING OFFICER ADEQUATELY RESPONDS TO YOUR SPECIFIC CONTENTIONS. IN VIEW THEREOF AND HAVING REGARD FOR THE REASONABLE DISCRETION AFFORDED THE CONTRACTING ACTIVITY IN SUCH MATTERS, WE FIND NO BASIS TO QUESTION THE CONTRACTING OFFICER'S CONCLUSIONS.

THE FACT THAT ONLY ONE BID WAS RECEIVED IN RESPONSE TO THE INVITATION FOR THE BIDS DOES NOT NECESSARILY REQUIRE A CONCLUSION THAT THE SPECIFICATIONS WERE MORE RESTRICTIVE THAN NECESSARY. FURTHERMORE, SINCE THE RECORD INDICATES THAT THE CONTRACTING OFFICER REASONABLY COULD HAVE EXPECTED THAT MORE THAN ONE BID WOULD BE SUBMITTED IN RESPONSE TO A SOLICITATION UNDER FORMAL ADVERTISING PROCEDURES, THERE WAS NO NECESSITY FOR PROCEEDING WITH A VIEW TOWARD NEGOTIATING A CONTRACT WITH MB ELECTRONICS AS THE SOLE SOURCE FOR THE DESIRED ITEMS OF EQUIPMENT.

IN THE CIRCUMSTANCES IT DOES NOT APPEAR THAT FURTHER ACTION BY OUR OFFICE IS REQUIRED IN REGARD TO THE PROTEST.