B-173046, NOV 22, 1971

B-173046, NOV 22, 1971

BID PROTEST - REQUIRED SPECIFICATIONS - "BRAND NAME OR EQUAL" DECISION DENYING PROTEST BY HIGH BIDDER AGAINST AWARD OF A CONTRACT TO SECOND LOW BIDDER, SRC DIVISION, MOXON, INC. UNDER AN IFB ISSUED BY ARNOLD AIR FORCE STATION, TENNESSEE FOR SIGNAL CONDITIONERS, ROCK ADAPTERS AND MANUALS ON A "BRAND NAME OR EQUAL" BASIS. IN THE ABSENCE OF EVIDENCE THAT THE DETERMINATION REPRESENTED AN ABUSE OF AUTHORITY, THE COMP. GEN. WILL NOT QUESTION THE PROCURING ACTIVITY'S FINDING THAT THE ITEMS OFFERED BY SRC MET THE ADVERTISED SPECIFICATIONS AND SALIENT CHARACTERISTICS OF PROTESTANT'S BRAND NAME PRODUCT. ALSO, THE CONTRACTOR'S ABILITY TO PERFORM MUST BE DETERMINED BY THE CONTRACTING OFFICER INVOLVED. FINALLY, ASPR 2-407.8(B)(3) PERMITS AWARD WHILE A PROTEST IS PENDING WHERE, AS HERE, THE ITEM IS URGENTLY REQUIRED AND DELIVERY DELAYS COULD HAVE "NATIONAL REPERCUSSIONS ON U.S. DEFENSE PLANS." FOR THE ABOVE REASONS, THE PROTEST IS DENIED.

TO TECHNER, RUBIN, SHAPIRO, SILVERSTEIN & REMICK:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 14, 1971, AND PRIOR CORRESPONDENCE FROM B & F INSTRUMENTS, INC. (B&F), PROTESTING THE AWARD OF A CONTRACT TO SRC UNDER INVITATION FOR BIDS (IFB) NO. F40650-71-B 0013, ISSUED BY ARNOLD AIR FORCE STATION, TENNESSEE.

THE IFB, AS AMENDED, SOLICITED BIDS ON 168 SIGNAL CONDITIONERS WITH POWER SUPPLY (B&F MODEL 1-700 OR EQUAL) AND 17 RACK ADAPTERS (B&F MODEL RW2229 OR EQUAL) PLUS 15 MANUALS. THE SALIENT CHARACTERISTICS OF THE IDENTIFIED BRAND NAME MODELS WERE LISTED IN SPECIFICATION P1-10 IN THE IFB. THE "BRAND NAME OR EQUAL" CLAUSE IN THE IFB REQUIRED BIDDERS TO FURNISH FOR EVALUATION DESCRIPTIVE LITERATURE ON ARTICLES OFFERED ON AN "EQUAL" BASIS.

THE FOUR BIDS RECEIVED UNDER THE IFB WERE AS FOLLOWS:

DYNAMICS INSTRUMENT CO. $38,006.80

SRC DIVISION, MOXON, INC. (SRC) 48,311.00

PPM, INC. 49,500.00

B & F INSTRUMENTS, INC. 55,662.50

THE LOW BID WAS REJECTED AS NONRESPONSIVE. THE CONTRACTING OFFICER DETERMINED THAT SRC WAS THE LOW RESPONSIVE AND RESPONSIBLE BIDDER AND PREPARED TO AWARD A CONTRACT TO SRC. BEFORE AN AWARD WAS MADE, HOWEVER, B&F BY TELEGRAM OF MAY 24 AND LETTER OF JUNE 4, 1971, PROTESTED TO OUR OFFICE AGAINST AN AWARD TO ANY BIDDER OTHER THAN ITSELF. HOWEVER, AWARD OF A CONTRACT WAS MADE TO SRC ON JUNE 9, 1971, BECAUSE OF AN URGENT NEED FOR THE EQUIPMENT.

THE BASIS OF THE B&F PROTEST IS THAT THE PRODUCTS OFFERED BY OTHER BIDDERS ARE NOT EQUAL TO THE B&F MODEL 1-700 IN FIVE KEY AREAS AND IN 60 OTHER AREAS OF THE "WRITTEN AND UNWRITTEN SPECIFICATIONS OF THE B&F 1- 700."

HOWEVER, THE CONTRACTING AGENCY REVIEWED THE TECHNICAL DATA FURNISHED BY SRC WITH ITS BID AND CONCLUDED THAT THE EQUIPMENT OFFERED BY SRC WAS IN COMPLETE COMPLIANCE WITH THE SALIENT CHARACTERISTICS IN SPECIFICATION P1- 10 IN THE IFB. WITH RESPECT TO THE COMPARISON OF SRC EQUIPMENT TO THE KEY AREAS AND WRITTEN AND UNWRITTEN SPECIFICATIONS REFERENCED BY B&F, THERE IS ENCLOSED A COPY OF THE CONTRACTING AGENCY'S COMPARISON.

THE FACTUAL DETERMINATION WHETHER ITEMS OFFERED BY BIDDERS MEET THE ADVERTISED SPECIFICATIONS IS A MATTER RESERVED TO THE PROCUREMENT AGENCY WHICH, IN THE ABSENCE OF EVIDENCE ESTABLISHING THAT THE DETERMINATION REPRESENTED AN ABUSE OF AUTHORITY, WILL NOT BE QUESTIONED BY OUR OFFICE.

B&F ALSO QUESTIONED THE RESPONSIBILITY OF SRC IN VIEW OF THE DIFFICULTY IT ENCOUNTERED IN THE PAST IN THE PERFORMANCE OF OTHER CONTRACTS OF THIS TYPE. THE DETERMINATION OF A BIDDER'S ABILITY TO PERFORM A CONTRACT IS A MATTER OF JUDGMENT WHICH, WHILE IT SHOULD BE BASED ON FACT AND ARRIVED AT IN GOOD FAITH, MUST PROPERLY BE LEFT LARGELY TO THE DISCRETION OF THE CONTRACTING OFFICERS INVOLVED. B 173256, SEPTEMBER 3, 1971.

FURTHER, B&F HAS QUESTIONED THE PROPRIETY OF MAKING AN AWARD TO SRC WHILE THE B&F PROTEST WAS PENDING. HOWEVER, ASPR 2-407.8(B)(3) PERMITS AN AWARD TO BE MADE WHEN A PROTEST IS PENDING WHEN THE CONTRACTING OFFICER DETERMINES THAT THE ITEMS TO BE PROCURED ARE URGENTLY REQUIRED AND PROVIDES FOR THE CONTRACTING OFFICER DOCUMENTING THE FILE TO EXPLAIN THE NEED FOR AN IMMEDIATE AWARD. THE DOCUMENTATION IN THE ADMINISTRATIVE FILE RELATIVE TO THE URGENCY DETERMINATION PROVIDED IN PERTINENT PART:

"1. THE AMPLIFIERS AND SIGNAL CONDITIONERS BEING PURCHASED UNDER SUBJECT IFB ARE A PORTION OF THE INSTRUMENTATION VITAL TO THE FULL SCALE F-15 ENGINE/INLET TEST TO BE PERFORMED IN PWT COMMENCING ON 8 NOVEMBER 1971. IT IS IMPERATIVE THAT AWARD BE MADE ON OR BEFORE 10 JUNE 1971 TO PERMIT THE DELIVERY OF THE ITEMS ON OR BEFORE 10 SEPTEMBER 1971. A DELAY IN THE AWARD WILL NOT PROVIDE SUFFICIENT TIME TO RECEIVE THE EQUIPMENT, CHECK OUT, INSTALL AND HAVE THE EQUIPMENT OPERABLE BY THE 8 NOVEMBER DEADLINE. LATE DELIVERY WILL RESULT IN REVENUE LOSSES OF AT LEAST $40,000 PER DAY WITH THE POSSIBILITY THAT AEDC LOSSES COULD REASONABLY GO AS HIGH AS $80,000 PER DAY. OUR FAILURE TO CONDUCT TESTING WITHIN THE REQUIRED TIME FRAME WOULD PYRAMID DELAYS THROUGHOUT THE ENTIRE DEVELOPMENT CYCLE AND THUS INCREASE OVERALL COSTS IN DOD. THIS PROGRAM HAS ONE OF THE HIGHEST PRIORITIES OF ANY WEAPONS SYSTEM NOW IN THE DOD. TO COMPROMISE THE TIMELY AWARD OF THIS CONTRACT AND THEREBY DELAY THE DELIVERY OF ESSENTIAL EQUIPMENT COULD HAVE NATIONAL REPERCUSSIONS ON U.S. DEFENSE PLANS."

FOR THE REASONS SET FORTH ABOVE, THE PROTEST IS DENIED.