B-172798(1), SEP 13, 1971

B-172798(1): Sep 13, 1971

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AWARD WAS MADE TO THE NEXT LOW BIDDER UNDER ASPR 3 805.1(A)(III). SINCE THERE IS NOTHING IN THE RECORD FROM WHICH TO CONCLUDE THAT THE CONTRACTING OFFICER ABUSED HIS DISCRETION. THE PROTEST IS DENIED. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 28. THE PROCUREMENT WAS NEGOTIATED PURSUANT TO THE AUTHORITY OF 10 U.S.C. 2304(A)(10). STATED THAT MAXIMUM ACCELERATED DELIVERY WAS DESIRED. THE ASSEMBLIES WERE DESCRIBED AS: "CONTROL ASSEMBLY: WARNER AND SWASEY CO. P/N 300A254 OR STEWART THOMAS INDUSTRIES P/N 300A254" OFFERORS WERE CAUTIONED TO SEE THE PRODUCTS OFFERED CLAUSE IN SECTION C OF THE SCHEDULE WHICH PROVIDED IN PART: "(A) PRODUCTS OFFERED MUST EITHER BE IDENTICAL OR FUNCTIONALLY.

B-172798(1), SEP 13, 1971

BID PROTEST - CONFORMANCE TO SPECIFICATIONS - DRAWINGS DENIAL OF PROTEST BY DYNASTAT, INC., AGAINST AWARD OF A CONTRACT TO ONAN, DIVISION OF ONAN CORPORATION, UNDER AN RFP ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VA. THE RFP REQUIRED THAT EACH BIDDER SUBMIT WITH THE OFFER, DRAWINGS AND OTHER DATA WHICH COULD CLEARLY DESCRIBE THE PRODUCT. SINCE PROTESTANT FAILED TO SUBMIT THE REQUIRED DATA, AWARD WAS MADE TO THE NEXT LOW BIDDER UNDER ASPR 3 805.1(A)(III). IN THE ABSENCE OF A CLEAR SHOWING OF ARBITRARY OR CAPRICIOUS ACTION, FAVORITISM, FRAUD OR A COMPLETE DISREGARD OF THE LAW OR FACTS, GAO WOULD NOT BE JUSTIFIED IN HOLDING THESE PROCUREMENT PRACTICES TO BE ILLEGAL. SINCE THERE IS NOTHING IN THE RECORD FROM WHICH TO CONCLUDE THAT THE CONTRACTING OFFICER ABUSED HIS DISCRETION, THE PROTEST IS DENIED.

TO DYNASTAT, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 28, 1971, AND SUBSEQUENT COMMUNICATIONS, PROTESTING AWARD OF A CONTRACT DATED APRIL 19, 1971, TO ONAN, DIVISION OF ONAN CORPORATION, UNDER REQUEST FOR PROPOSAL DSA-400-71-R-4188 ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER (DGSC), RICHMOND, VIRGINIA.

THE PROCUREMENT WAS NEGOTIATED PURSUANT TO THE AUTHORITY OF 10 U.S.C. 2304(A)(10), AS IMPLEMENTED BY PARAGRAPH 3-210.2(XIII) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). THE SOLICITATION CALLED FOR 179 GENERATOR CONTROL ASSEMBLIES, UNDER TWO ITEMS, TO BE DELIVERED BY SEPTEMBER 27, 1971 (BASED ON AWARD BY MARCH 29, 1971), AND STATED THAT MAXIMUM ACCELERATED DELIVERY WAS DESIRED. THE ASSEMBLIES WERE DESCRIBED AS:

"CONTROL ASSEMBLY: WARNER AND SWASEY CO. P/N 300A254 OR ONAN DIV OF STUDEBAKER CORP. P/N 300A254 OR STEWART THOMAS INDUSTRIES P/N 300A254"

OFFERORS WERE CAUTIONED TO SEE THE PRODUCTS OFFERED CLAUSE IN SECTION C OF THE SCHEDULE WHICH PROVIDED IN PART:

"(A) PRODUCTS OFFERED MUST EITHER BE IDENTICAL OR FUNCTIONALLY, PHYSICALLY, MECHANICALLY, AND ELECTRICALLY INTERCHANGEABLE WITH THE PRODUCTS CITED IN EACH PROCUREMENT IDENTIFICATION DESCRIPTION OF THIS SOLICITATION.

"(B) FOR EVALUATION PURPOSES OFFERORS MUST INDICATE, BY MARKING THE APPROPRIATE BLOCKS), WHICH OF THE FOLLOWING SITUATIONS IS APPLICABLE TO EACH ITEM WHICH THEY ARE OFFERING AND FURNISH WHATEVER SUPPORTING INFORMATION IS REQUIRED BELOW. 'FAILURE TO FURNISH COMPLETE DATA AND INFORMATION REQUIRED TO SUPPORT SITUATIONS (2), (3) AND (4) BELOW MAY PRECLUDE CONSIDERATION OF YOUR PROPOSAL.'"

YOU MARKED PARAGRAPH (4) OF THE PRODUCTS OFFERED CLAUSE AND THEREBY AGREED TO FURNISH A PRODUCT WHICH WAS EQUAL IN ALL MATERIAL RESPECTS TO ONE OF THE PRODUCTS REFERENCED IN THE ITEM DESCRIPTION. THE FOLLOWING NOTE WAS ALSO APPLICABLE TO THAT PARAGRAPH:

"NOTE: (A) THE GOVERNMENT DOES NOT HAVE DETAILED DATA FOR THE ITEM REFERENCED IN THE PROCUREMENT IDENTIFICATION DESCRIPTION. THEREFORE, OFFERORS RELYING ON THIS PARAGRAPH (4) MUST FURNISH WITH THEIR OFFERS DRAWINGS AND OTHER DATA WHICH WILL CLEARLY DESCRIBE THE CHARACTERISTICS AND FEATURES OF THEIR PRODUCT. IN ADDITION, OFFERORS MUST FURNISH DRAWINGS OR OTHER DATA COVERING DESIGN, MATERIALS, PERFORMANCE, ETC., OF THE PRODUCT CITED IN THE SCHEDULE SUFFICIENT TO ENABLE THE GOVERNMENT TO DETERMINE THAT THE OFFEROR'S PRODUCT IS EQUAL TO THE PRODUCT NAMED IN THE SCHEDULE."

IN RESPONSE TO THE FURTHER REQUIREMENT OF PARAGRAPH (4), THAT OFFERORS RELYING THEREON INSERT THE SUBSTITUTED MANUFACTURER'S NAME AND NUMBER, YOU INSERTED:

"REFER TO DYNASTAT, INC. DWG. DY 300 A 254. MATERIAL WILL BE FUNCTIONALLY, PHYSICALLY, MECHANICALLY AND ELECTRICALLY INTERCHANGEABLE WITH THE PROCUREMENT IDENTIFICATION DESCRIPTION."

SINCE YOUR PRODUCT WAS NOT ONE OF THE ACCEPTABLE ASSEMBLIES IDENTIFIED IN THE ITEM DESCRIPTION, YOU FURNISHED WITH YOUR OFFER A SINGLE SHEET SKETCH OF YOUR PROPOSED PRODUCT WHICH FELL SHORT OF THE DATA CALLED FOR IN THE ABOVE NOTE TO PARAGRAPH (4) OF THE PRODUCTS OFFERED CLAUSE. YOU WERE ASKED TO FURNISH THE ADDITIONAL DATA, A PART OF WHICH YOU PROVIDED BY YOUR LETTER OF MARCH 18. THIS ADDITIONAL DATA DID NOT INCLUDE THE DRAWINGS OR OTHER DATA REQUIRED BY THE PRODUCTS OFFERED CLAUSE FOR ONE OF THE PRODUCTS CITED IN THE SCHEDULE. AS STATED IN THE NOTE TO PARAGRAPH (4) THIS INFORMATION WAS NEEDED TO ENABLE THE GOVERNMENT TO DETERMINE WHETHER YOUR PROPOSED PRODUCT WAS EQUAL TO ONE OF THE THREE ACCEPTABLE ITEMS NAMED IN THE SCHEDULE.

SINCE YOU HAD NOT FURNISHED DRAWINGS OR OTHER DATA COVERING DESIGN, MATERIALS, PERFORMANCE, ETC., ON ANY OF THE THREE PRODUCTS CITED IN THE RFQ, IT WAS ESTIMATED THAT UP TO SIX MONTHS MIGHT ELAPSE BEFORE A DETERMINATION COULD BE MADE AS TO WHETHER YOUR PRODUCT WAS ACCEPTABLE. THIS ESTIMATE WAS BASED ON PAST EXPERIENCE AS TO THE TIME CONSUMED FROM THE RECEIPT OF INADEQUATE DRAWINGS ON THE STEWART-THOMAS INDUSTRIES CONTROL ASSEMBLY TO APPROVAL OF ITS PROTOTYPE ITEM. THE ENGINEERING SUPPORT ACTIVITY REPORTED THAT IN THE ABSENCE OF COMPLETE DETAILED DRAWINGS, SPECIFICATIONS, ETC., FOR A COMPARISON OF THE CONTROL ASSEMBLY YOU INTENDED TO FURNISH WITH ONE OF THOSE ALREADY APPROVED FOR USE BY THE GOVERNMENT, IT WOULD BE NECESSARY TO OBTAIN ONE, AND PREFERABLY TWO, PROTOTYPES OF YOUR PROPOSED ASSEMBLY FOR END ITEM COMPATIBILITY TESTING FOR FORM, FIT AND FUNCTION.

THE CONTRACTING OFFICER REQUESTED INFORMATION REGARDING THE EFFECT ON THE SUPPLY SITUATION OF AN EXTENSION IN THE DELIVERY TIME, AND WAS ADVISED THAT STOCK WAS NEEDED IN LESS THAN FOUR MONTHS AND THAT ANY ADDITIONAL DELAY IN AWARD WOULD CAUSE THE ITEM TO BECOME OUT OF STOCK. HE THEREFORE AWARDED THE CONTRACT TO THE LOW OFFEROR, WHO PROPOSED TO SUPPLY ONE OF THE CONTROL ASSEMBLIES PREVIOUSLY FOUND ACCEPTABLE, WITHOUT FURTHER NEGOTIATIONS WITH YOUR FIRM. IN ADVISING YOU OF HIS ACTION BY LETTER DATED APRIL 19, 1971, THE CONTRACTING OFFICER STATED THAT THE AWARD WAS BEING MADE PURSUANT TO THE AUTHORITY OF ASPR 3 805.1(A)(III), WHICH PROVIDES THAT DISCUSSIONS NEED NOT BE CONDUCTED WITH OFFERORS WHERE TIME OF DELIVERY WILL NOT PERMIT SUCH DISCUSSIONS.

YOU CONTEND THAT THE CONTRACTING OFFICER ABUSED THE AUTHORITY OF THE CITED ASPR PROVISION BY NOT INQUIRING AS TO WHETHER YOU COULD MEET THE DELIVERY REQUIREMENTS. YOU SAY THAT THE ITEM IS UNSOPHISTICATED, SIMPLE TO CONSTRUCT AND THAT EVALUATION TIME FOR YOUR DATA SHOULD HAVE TAKEN NO MORE THAN A FEW HOURS. YOU ALSO IMPLY THAT THE AGENCY SHOULD HAVE ACCEPTED YOUR STATEMENT THAT YOUR PROPOSED SYSTEM WOULD BE INTERCHANGEABLE WITH THE APPROVED PRODUCTS. YOU FURTHER SUGGEST THAT THE AGENCY HAD ADEQUATE DATA ON THE APPROVED ITEMS FOR A COMPARISON OF YOUR DATA, AS EVIDENCED BY THE DGSC LETTER OF APRIL 21, 1971, WHICH REFERS TO THE POSSESSION OF LIMITED TECHNICAL DATA RIGHTS PROPRIETARY TO THE ONAN COMPANY.

AS SHOWN ABOVE, THE NOTE TO PARAGRAPH (4) OF THE PRODUCTS OFFERED CLAUSE CLEARLY REQUIRED OFFERORS TO FURNISH DRAWINGS OR OTHER DATA ON AN APPROVED PRODUCT CITED IN THE SCHEDULE. THAT CLAUSE ALSO WARNED OFFERORS THAT FAILURE TO FURNISH COMPLETE DATA REQUIRED TO SUPPORT PARAGRAPH (4) MIGHT PRECLUDE FURTHER CONSIDERATION OF THEIR PROPOSALS. SINCE THE GOVERNMENT DID NOT HAVE THE NECESSARY DATA, YOUR FAILURE TO FURNISH DRAWINGS OR OTHER ADEQUATE DATA ON ONE OF THE APPROVED PRODUCTS, EITHER WITH YOUR PROPOSAL OR PURSUANT TO THE AGENCY'S SUBSEQUENT REQUEST THEREFOR, RESULTED IN CONSIDERATION OF YOUR PROPOSAL ON THE BASIS OF FURNISHING PROTOTYPES FOR TESTING SO THAT THE GOVERNMENT COULD ASCERTAIN THE INTERCHANGEABILITY OF YOUR PROPOSED PRODUCT WITH, AND EQUALITY TO, ONE OF THE PRODUCTS CITED IN THE SCHEDULE. BASED ON PRIOR EXPERIENCE IN A SIMILAR SITUATION, THE CONTRACTING OFFICER CONCLUDED THAT THE TIME INVOLVED IN SUCH A PROCEDURE WOULD NOT PERMIT THE MEETING OF CRITICAL DELIVERY REQUIREMENTS, AND THEREFORE FURTHER DISCUSSIONS WITH YOUR FIRM WERE NOT WARRANTED. WHILE IT MAY BE THAT, HAD YOU FURNISHED COMPLETE DRAWINGS OR OTHER ACCEPTABLE DATA ON AN APPROVED PRODUCT, AN EVALUATION OF YOUR PROPOSAL COULD HAVE BEEN PERFORMED WITHIN A FEW HOURS, IT IS OBVIOUS THAT SUCH AN EVALUATION DOES NOT COMPARE WITH THE ALTERNATE PROTOTYPE PROCEDURE WHICH REQUIRES A MUCH GREATER AMOUNT OF TIME FOR PRODUCTION OF THE PROTOTYPES AND FOR THEIR TESTING.

FROM THE FOREGOING WE CAN NOT CONCLUDE THAT THE CONTRACTING OFFICER ABUSED THE AUTHORITY OF ASPR 3-805.1(A)(III) IN LIGHT OF THE CIRCUMSTANCES AND INFORMATION AVAILABLE TO HIM AT THAT TIME. WE HAVE REPEATEDLY HELD THAT CONTRACTING OFFICERS ARE VESTED WITH A CERTAIN AMOUNT OF DISCRETION, AND IN THE ABSENCE OF A CLEAR SHOWING OF ARBITRARY OR CAPRICIOUS ACTION, FAVORITISM, FRAUD OR A COMPLETE DISREGARD OF THE LAW OR FACTS WE ARE NOT JUSTIFIED IN HOLDING THEIR PROCUREMENT ACTIONS TO BE ILLEGAL. SEE 36 COMP. GEN. 62, 66 (1956).

CONCERNING YOUR SUGGESTION THAT THE AGENCY SHOULD HAVE ACCEPTED THE STATEMENT IN YOUR PROPOSAL THAT YOUR PROPOSED PRODUCT WOULD BE INTERCHANGEABLE WITH THE ITEMS DESCRIBED IN THE SCHEDULE, IT IS CLEAR THAT SUCH STATEMENT DID NOT COMPLY WITH THE GOVERNMENT'S REQUIREMENT FOR DRAWINGS OR DATA ON BOTH YOUR PRODUCT AND ON A LISTED PRODUCT WITH WHICH YOUR PRODUCT WAS ALLEGED TO BE EQUAL AND INTERCHANGEABLE. THE SOLICITATION CLEARLY SHOWED THAT THE MATERIAL WAS NEEDED IN ORDER THAT THE GOVERNMENT COULD DETERMINE FOR ITSELF WHETHER THE PRODUCT BEING OFFERED WAS ACCEPTABLE. THERE IS NO INDICATION WHATSOEVER IN THE SOLICITATION THAT THE REQUIREMENT FOR EVIDENCE SHOWING THE ACCEPTABILITY OF A NEW PRODUCT WOULD BE SATISFIED BY A SELF-SERVING DECLARATION BY AN OFFEROR THAT ITS PRODUCT WOULD MEET THE GOVERNMENT'S NEEDS. SEE IN SUCH CONNECTION OUR DECISION 36 COMP. GEN. 415 (1956) WHEREIN WE HELD THAT AN OFFER TO COMPLY WITH SPECIFICATIONS CANNOT OVERCOME A REQUIREMENT FOR THE FURNISHING OF DESCRIPTIVE DATA.

REGARDING YOUR BELIEF THAT THE REFERENCE IN THE DGSC LETTER OF APRIL 21, TO POSSESSION OF LIMITED TECHNICAL DATA RIGHTS, INDICATES THAT THE AGENCY HAD ADEQUATE DATA ON THE APPROVED PRODUCTS, IT IS REPORTED BY DSA THAT THE LIMITED TECHNICAL DATA RIGHTS MENTIONED IN THAT LETTER CONSIST ONLY OF A PROPRIETARY WIRING DIAGRAM AND THAT SUCH DIAGRAM IS INADEQUATE FOR MANUFACTURE OF THE COMPLETE CONTROL ASSEMBLY. THEREFORE, IT DOES NOT APPEAR THAT THE WIRING DATA AVAILABLE TO THE AGENCY WOULD SERVE AS A BASIS FOR DETERMINING THE ACCEPTABILITY OF YOUR PROPOSED PRODUCT IN OTHER RESPECTS, OR THE COMPLETE ACCEPTABILITY OF THAT PRODUCT.

ACCORDINGLY, SINCE WE FIND NO VALID BASIS ON WHICH TO DISAGREE WITH THE REJECTION OF YOUR OFFER, YOUR PROTEST MUST BE DENIED.