B-172886, JUL 13, 1971

B-172886: Jul 13, 1971

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

PROTESTANT'S CONTENTION THAT THE PROCURING ACTIVITY WAS NOT JUSTIFIED IN MAKING AWARD TO THE LOW BIDDER SINCE THIS BIDDER'S TECHNICAL PROPOSAL WOULD PRESENT A SAFETY HAZARD AND WOULD NOT MEET THE PROCUREMENT REQUIREMENTS IS UNSUPPORTED AND THE COMPTROLLER GENERAL HAS NO BASIS TO QUESTION THE DETERMINATION BY THE TECHNICAL EVALUATION BOARD THAT ENESS' PROPOSAL MET THE REQUIREMENTS OF THE SPECIFICATIONS. HENNING COMPANY: REFERENCE IS MADE TO THE LETTER OF APRIL 26. WAS ISSUED BY THE COAST GUARD ON OCTOBER 15. OFFERORS WERE ADVISED THAT A BOARD OF GOVERNMENT PERSONNEL WOULD DESIGNATE THOSE PROPOSALS WHICH WERE DETERMINED TO BE TECHNICALLY ACCEPTABLE AND THAT UPON COMPLETION OF STEP ONE. THE INVITATION FOR BIDS (IFB) WAS ISSUED TO THE FIVE ACCEPTABLE OFFERORS FOR A PROTOTYPE AND OPTIONAL QUANTITIES.

B-172886, JUL 13, 1971

BID PROTEST - TWO STEP PROCUREMENT - TECHNICAL PROPOSALS DECISION DENYING PROTEST BY FOURTH LOW BIDDER AGAINST AWARD OF A CONTRACT TO ENESS RESEARCH & DEVELOPMENT CORPORATION UNDER A TWO-STEP FORMALLY ADVERTISED PROCUREMENT BY THE COAST GUARD FOR A WORKING MODEL GRAVITY DAVIT. PROTESTANT'S CONTENTION THAT THE PROCURING ACTIVITY WAS NOT JUSTIFIED IN MAKING AWARD TO THE LOW BIDDER SINCE THIS BIDDER'S TECHNICAL PROPOSAL WOULD PRESENT A SAFETY HAZARD AND WOULD NOT MEET THE PROCUREMENT REQUIREMENTS IS UNSUPPORTED AND THE COMPTROLLER GENERAL HAS NO BASIS TO QUESTION THE DETERMINATION BY THE TECHNICAL EVALUATION BOARD THAT ENESS' PROPOSAL MET THE REQUIREMENTS OF THE SPECIFICATIONS.

TO ARTHUR G. HENNING COMPANY:

REFERENCE IS MADE TO THE LETTER OF APRIL 26, 1971, ON BEHALF OF THE ARTHUR G. HENNING COMPANY, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ENESS RESEARCH & DEVELOPMENT CORPORATION (ENESS) UNDER A TWO-STEP FORMALLY ADVERTISED PROCUREMENT BY THE UNITED STATES COAST GUARD.

STEP ONE OF THE PROCUREMENT, THE NOTICE OF REQUEST FOR TECHNICAL PROPOSALS (RFP), WAS ISSUED BY THE COAST GUARD ON OCTOBER 15, 1970. THE RFP DESCRIBED THE REQUIREMENT FOR A WORKING MODEL GRAVITY DAVIT FOR USE AS A PROTOTYPE FOR ADDITIONAL DAVIT MODELS TO BE USED IN DETERMINING WHETHER CANDIDATES FOR LIFEBOATMAN'S CERTIFICATES COULD DEMONSTRATE THE ACTUAL ABILITY TO LAUNCH A LIFEBOAT. THE RFP SET FORTH CERTAIN GENERAL REQUIREMENTS FOR APPROXIMATE SIZE, APPEARANCE, STOWAGE AND PHYSICAL OPERATION OF THE DAVITS.

OFFERORS WERE ADVISED THAT A BOARD OF GOVERNMENT PERSONNEL WOULD DESIGNATE THOSE PROPOSALS WHICH WERE DETERMINED TO BE TECHNICALLY ACCEPTABLE AND THAT UPON COMPLETION OF STEP ONE, THERE WOULD BE A FORMALLY ADVERTISED PROCUREMENT IN ACCORDANCE WITH SUBPARTS 1-2.2, 1 2.3 AND 1-2.4 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR). IN ACCORDANCE WITH THE REGULATIONS ONLY THOSE OFFERORS SUBMITTING TECHNICAL PROPOSALS DETERMINED TO BE ACCEPTABLE UNDER STEP ONE COULD PARTICIPATE IN STEP TWO (FPR 1-2.503 -2).

SEVEN OFFERORS RESPONDED TO THE RFP. THE TECHNICAL EVALUATION BOARD FOUND THAT FIVE OFFERS MET THE REQUIREMENTS OF THE SPECIFICATION UNDER STEP ONE AND ON MARCH 10, 1971, STEP TWO, THE INVITATION FOR BIDS (IFB) WAS ISSUED TO THE FIVE ACCEPTABLE OFFERORS FOR A PROTOTYPE AND OPTIONAL QUANTITIES. ITEM 1 WAS FOR THE PROTOTYPE MODEL AND ITEM 2 WAS FOR THE OPTIONAL PRODUCTION UNITS.

FOUR BIDS WERE RECEIVED UNDER STEP TWO (IFB) AS FOLLOWS:

BIDDER SCALE MODEL OPTIONS TOTAL AMOUNT

ENESS $ 6,605.00 $ 67,490.00 $ 74,095.00

WESTINGHOUSE $36,001.00 $ 58,559.48 $ 94,560.48

J. J. HENRY $15,085.00 $ 87,774.00 $102,859.00

ARTHUR G. HENNING $ 8,215.00 $110,970.00 $119,185.00 ON APRIL 22, 1971, AWARD OF THE CONTRACT IN THE AMOUNT OF $6,605 WAS MADE TO ENESS, THE LOW BIDDER. THE COAST GUARD HAS ADVISED THAT AWARDS OF THE OPTIONS ARE CONTEMPLATED IF THE PROTOTYPE PROVES SUCCESSFUL.

THE BASIS FOR YOUR PROTEST IS THAT UPON REVIEW OF THE TECHNICAL PROPOSALS OF THE SUCCESSFUL BIDDER YOU FOUND THAT "THE PROPOSALS WERE TOTALLY NON- RESPONSIVE TO THE REQUIREMENTS IN THE ADVERTISEMENT." YOU CONTEND THAT ACCEPTANCE OF THE LOW PROPOSAL IS UNFAIR TO THE OTHER OFFERORS AND YOU QUESTION WHETHER THE DEVICE OFFERED BY THE LOW BIDDER WILL BE ADEQUATE FOR THE TESTING REQUIRED.

THE FOLLOWING STATEMENT HAS BEEN SUBMITTED BY THE CONTRACTING OFFICER IN ANSWER TO THE CONTENTIONS:

"THE RFP PROVIDED 'THE DAVITS SHOULD BE APPROXIMATELY ONE QUARTER SCALE. THE DESIGN OF THE MODEL SHALL CONFORM TO THE DESIGN OF EXISTING MODEL CURRENTLY IN USE ON COMMERCIAL VESSELS. THE DESIGN OF THE MODEL SHOULD CONFORM AS CLOSELY AS POSSIBLE IN BOTH STATIC AND DYNAMIC STATES, A STOPPER BAR AND GRIPES MUST BE PRESENT TO KEEP THE BOAT IN THE STOWED POSITION. TRICING PENDENTS AND FRAPPING LINES MUST BE INSTALLED AND USABLE. FALLS MUST BE CORRECTLY RIGGED AND OPERATE IN THE SAME MANNER AS THE FULL SIZED DAVIT. RELEASING GEAR IS TO BE OF THE ROTTMER TYPE. DAVIT ARMS, CRADLE, ROLLERS AND ROLLER TRACKS MUST FUNCTION PROPERLY. THE BOAT IN THE DAVIT MAY BE INERT.' IN OTHER WORDS, THE RFP CALLED FOR A MOCKUP WHICH LOOKED AND ACTED LIKE BOAT DAVITS ON COMMERCIAL VESSELS.

"ENESS PROPOSED A 1/4 SCALE MODEL TO BE CONSTRUCTED OF A COMBINATION OF STEEL WELDMENTS AND STEEL CHANNEL SECTIONS, USING COMMERCIALLY AVAILABLE HARDWARE *** AND WINCHES AS AN ECONOMICAL MEASURE. THE WINCHES WILL OPERATE OFF A REGULAR 115VAC POWER SOURCE. THE MODEL BOAT PROPOSED IS TO BE CONSTRUCTED OF FIBERGLASS AND POLYESTER RESIN, AND IT WILL BE EQUIPPED WITH FULLY OPERATIONAL ROTTMER TYPE RELEASING GEAR. THERE WILL ALSO BE A PLASTER MOLD MADE OF THE BOAT TO FACILITATE ANY POSSIBLE FUTURE CONSTRUCTION. THEREFORE, THIS PROPOSED MODEL MEETS THE SPECIFICATIONS.

"THE BOAT DAVIT MOCKUP WILL BE USED TO TEST CANDIDATES FOR A LIFEBOATMAN'S ENDORSEMENT ON A MERCHANT MARINE DOCUMENT AND WILL BE USED TO DEMONSTRATE THE CANDIDATE'S ABILITY TO LOWER AND RAISE A LIFEBOAT. THIS IS THE SOLE PURPOSE OF THE MODEL. IT WILL NOT BE USED TO TEST A CANDIDATE'S ABILITY TO MAINTAIN OR REPAIR DAVITS, AS THIS IS NOT REQUIRED KNOWLEDGE FOR A LIFEBOATMAN'S ENDORSEMENT."

THE BASIC ISSUE CONCERNS YOUR CONTENTION THAT THE PROCURING ACTIVITY WAS NOT JUSTIFIED IN MAKING AN AWARD TO THE LOW BIDDER SINCE THIS BIDDER'S TECHNICAL PROPOSAL WOULD PRESENT A SAFETY HAZARD AND WOULD NOT MEET THE REQUIREMENTS OF THIS PROCUREMENT. YOU HAVE NOT ELABORATED ON THE BASIS FOR YOUR CONTENTION. THE DETERMINATION WHETHER ENESS' TECHNICAL PROPOSAL MET THE REQUIREMENTS OF THE SPECIFICATIONS IS A MATTER WHICH IS PRIMARILY WITHIN THE COGNIZANCE OF THE PROCURING AGENCY, AND IT IS LONG ESTABLISHED THAT SUCH DETERMINATIONS WILL NOT BE QUESTIONED BY OUR OFFICE UNLESS SHOWN TO BE ARBITRARY, CAPRICIOUS OR NOT MADE IN GOOD FAITH. 17 COMP. GEN. 554 (1938). WE HAVE FOUND NO BASIS TO QUESTION THE DETERMINATION BY THE TECHNICAL EVALUATION BOARD THAT ENESS' TECHNICAL PROPOSAL MET THE REQUIREMENTS OF THE SPECIFICATIONS.

THERE WOULD HAVE BEEN NO JUSTIFICATION IN THE CIRCUMSTANCES OF THIS CASE FOR PAYING A HIGHER PRICE FOR YOUR ITEM IN VIEW OF THE FINDING THAT THE LOWEST PRICED PROPOSAL SATISFIED THE ACTUAL NEEDS OF THE PROCURING ACTIVITY. SEE 40 COMP. GEN. 294, 297 (1960). CONSEQUENTLY, WE FIND NO BASIS TO QUESTION THE AWARD TO THE LOW BIDDER.

FOR THESE REASONS YOUR PROTEST IS DENIED.