B-173072, OCT 1, 1971

B-173072: Oct 1, 1971

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DETERMINATIONS AS TO WHETHER A BIDDER IS CAPABLE OF PRODUCING AN ITEM IN ACCORDANCE WITH CONTRACT REQUIREMENTS IS A QUESTION OF FACT AND. ABSENT EVIDENCE THAT THE DETERMINATION OF A BIDDER'S CAPABILITIES WAS BASED ON ERROR. THE FINDINGS OF THE CONTRACTING OFFICER ARE CONCLUSIVE. THE PLENUM ASSEMBLY IS A PART OF AN AMPLIFIER WHICH IS A COMPONENT OF THE AN/GRC 106 RADIO SET. ALSO INCLUDED IN THE IFB ARE REQUIREMENTS FOR TECHNICAL EXAMINATION AND REVIEW OF GOVERNMENT-FURNISHED DRAWINGS. ASC WAS DETERMINED TO BE THE LOW RESPONSIVE RESPONSIBLE BIDDER. AWARD IS BEING WITHHELD PENDING THE RESOLUTION OF THIS PROTEST. YOUR FIRM'S PROTEST IS BASED ON THE CONTENTION THAT THE IFB DOES NOT INCLUDE PROCEDURES TO ASSURE ACCURATE AND CONSISTENT EVALUATION OF THESE PLENUM ASSEMBLIES IN THE EVENT OF AN AWARD TO A PRODUCER SUCH AS ASC WHICH IS NOT CURRENTLY QUALIFIED TO DELIVER AN/GRC-106 AMPLIFIERS.

B-173072, OCT 1, 1971

BID PROTEST - TECHNICAL EVALUATION DENYING PROTEST OF MAGNAVOX COMPANY AGAINST THE AWARD OF A CONTRACT TO ASC SYSTEMS CORPORATION UNDER AN IFB ISSUED BY THE ARMY ELECTRONICS COMMAND, PHILADELPHIA, FOR PLENUM ASSEMBLIES. DETERMINATIONS AS TO WHETHER A BIDDER IS CAPABLE OF PRODUCING AN ITEM IN ACCORDANCE WITH CONTRACT REQUIREMENTS IS A QUESTION OF FACT AND, ABSENT EVIDENCE THAT THE DETERMINATION OF A BIDDER'S CAPABILITIES WAS BASED ON ERROR, FRAUD OR FAVORITISM, THE FINDINGS OF THE CONTRACTING OFFICER ARE CONCLUSIVE.

TO THE MAGNAVOX COMPANY:

WE REFER TO YOUR TELEFAX OF MAY 25 AND YOUR LETTER OF JUNE 10, 1971, PROTESTING THE AWARD OF A CONTRACT TO ASC SYSTEMS CORPORATION (ASC) UNDER INVITATION FOR BIDS (IFB) NO. DAAB05-71-B-0613, ISSUED BY THE PHILADELPHIA OFFICE, UNITED STATES ARMY ELECTRONICS COMMAND (USAECOM), PHILADELPHIA, PENNSYLVANIA.

THE SUBJECT IFB, ISSUED ON APRIL 22, 1971, SOLICITED BIDS FOR PLENUM ASSEMBLIES WITHIN SPECIFIED QUANTITY RANGES AND GROUPS. THE PLENUM ASSEMBLY IS A PART OF AN AMPLIFIER WHICH IS A COMPONENT OF THE AN/GRC 106 RADIO SET. ALSO INCLUDED IN THE IFB ARE REQUIREMENTS FOR TECHNICAL EXAMINATION AND REVIEW OF GOVERNMENT-FURNISHED DRAWINGS, ITEM NO. 0002, AND ENGINEERING TECHNICAL DATA, ITEM NO. 0003. OF THE THREE BIDS RECEIVED AND OPENED ON MAY 24, 1971, ASC WAS DETERMINED TO BE THE LOW RESPONSIVE RESPONSIBLE BIDDER, BUT AWARD IS BEING WITHHELD PENDING THE RESOLUTION OF THIS PROTEST.

YOUR FIRM'S PROTEST IS BASED ON THE CONTENTION THAT THE IFB DOES NOT INCLUDE PROCEDURES TO ASSURE ACCURATE AND CONSISTENT EVALUATION OF THESE PLENUM ASSEMBLIES IN THE EVENT OF AN AWARD TO A PRODUCER SUCH AS ASC WHICH IS NOT CURRENTLY QUALIFIED TO DELIVER AN/GRC-106 AMPLIFIERS. SPECIFICALLY, YOU CONTEND; (1) SINCE THE PLENUM ASSEMBLY HAS NEVER BEEN TESTED ALONE BECAUSE OF HIGH VOLTAGES AND THE RF FREQUENCY INVOLVED, THERE ARE NOT ANY INDIVIDUALLY DEFINED REQUIREMENTS FOR THE ASSEMBLY IN THE MANNER OF A CLASSIFICATION OF DEFECTS, INDIVIDUAL MODULE TEST PROCEDURE, PERFORMANCE REQUIREMENTS OR SAMPLE TEST REQUIREMENTS, (2) DATA ITEM DI-T- 1906, REFERENCED ON DD FORM 1423 CONTAINED IN THE IFB PACKAGE, DOES NOT APPEAR TO ESTABLISH ANY PRECISE REQUIREMENT FOR SPECIFIC PERFORMANCE OR EVALUATION OF THE PRODUCT, (3) THE REQUIREMENT FOR AN INSPECTION SYSTEM IN THE IFB IS NOT COMPLETELY MEANINGFUL WITHOUT AN ACTUAL PRODUCT PERFORMANCE REQUIREMENT, AND (4) THE DELIVERY OF THE PLENUM ASSEMBLY FROM A MANUFACTURING LINE NOT ACCUSTOMED TO AND FACILITATED FOR ACTUAL OPERATION OF THE PLENUM ASSEMBLY IN THE RF AMPLIFIER OF THE AN/GRC-106 RADIO SET WOULD RESULT IN THE INTRODUCTION OF AN UNPROVED AND UNTESTED ITEM INTO THE ARMY SUPPLY SYSTEM.

IN RESPONSE TO YOUR PROTEST, USAECOM STATES IN PERTINENT PART THAT:

"A. THE PLENUM ASSEMBLY IS PART OF THE AN/GRC-106 RADIO SET. GENERAL DYANAMICS CORP. INITIALLY PRODUCED THIS ITEM FOR THE GOVERNMENT AND SUPPLIED THE DRAWINGS. THE MAGNAVOX COMPANY SUBSEQUENTLY RECEIVED AN AWARD FOR THIS ITEM AS THE RESULT OF AN IFB, CONTRACT NUMBER DAAB05 67-C- 0166 DATED 26 APRIL 1967 AND PRODUCED THE AN/GRC-106 USING THE DRAWINGS DEVELOPED BY GENERAL DYNAMICS. IT FOLLOWS, THEREFORE, THAT THE GOVERNMENT DRAWINGS ARE SATISFACTORY FOR THE CONSTRUCTION AND TEST OF THE PLENUM ASSEMBLY.

"B. MAGNAVOX APPEARS TO BE CONTESTING ONLY THE ELECTRICAL REQUIREMENTS. THE DRAWINGS DEPICTING THESE REQUIREMENTS ARE DEEMED ADEQUATE ***.

THE DRAWINGS ARE: TUNE APC ASSEMBLY (SM-D-502052); FAN VANEAXIAL ASSEMBLY (SM-C-508613); AND VOLTAGE REGULATOR ASSEMBLY (SC-DL-503402).

INFORMATION AND TEST LIMITS FOR THE INSPECTION ACCEPTANCE IS CONTAINED IN DRAWINGS SM-A-501183 FOR THE VOLTAGE REGULATOR AND SM-C 500222 FOR THE VANEAXIAL BLOWER. TESTS FOR THE REMAINING PORTION OF THE PLENUM ASSEMBLY ARE LIMITED TO CONTINUITY TESTS CHECKED AGAINST THE SCHEMATIC DIAGRAM DRAWING SM-D-502990.

"C. THE DD FORM 1423 DELINEATES TWO DATA ITEMS. DI-E-1116 CONTROLS THE USE OF STANDARD AND NON-STANDARD PARTS AND REQUIRES THE SUCCESSFUL BIDDER TO SUBMIT A LIST OF COMPONENTS ALONG WITH THE CORRESPONDING MANUFACTURERS NO LATER THAN 60 DAYS AFTER DATE OF AWARD. DI-T-1906 REQUIRES THE SUCCESSFUL BIDDER TO FURNISH TO THE PRDUCTION ENGINEERING DIVISION AT FORT MONMOUTH A COPY OF THE TEST AND DEMONSTRATION REPORTS PRIOR TO INITIATING PRODUCTION. THIS REPORT IS THE PRODUCTION TEST PROCEDURE TO BE USED BY THE SUCCESSFUL BIDDER TO TEST THE PLENUM ASSEMBLY AND UPON APPROVAL BY THE USAECOM ENGINEERING DIVISION IS TO BE USED AS PART OF THE ACCEPTANCE INSPECTION BY DCASR. THIS REPORT IS ALSO TO INCLUDE ALL INCOMING INSPECTION REPORTS OF PURCHASED PARTS.

"D. THE REFERENCE BY MAGNAVOX IN THEIR LETTER IN REGARD TO THE HIGH VOLTAGE, RF FREQUENCIES, AND TECHNICAL PROBLEMS ARE NOT RELEVANT BECAUSE THE COMPONENT LOCATION AND WIRE DRESS IS SPECIFICALLY DELINEATED ON DRAWING SM-D-502990."

THIS OFFICE HAS CONSISTENTLY ADHERED TO THE PROPOSITION THAT WHETHER SPECIFICATIONS ARE TECHNICALLY ADEQUATE IS A QUESTION WHICH IS PRIMARILY WITHIN THE PROVINCE OF THE PROCUREMENT AGENCY, 17 COMP. GEN. 554, 557 (1938). IN ADDITION, WE ARE ADVISED THAT A PRE-AWARD SURVEY HAS BEEN PERFORMED AT ASC'S FACILITY AND THE CONTRACTING OFFICER HAS DETERMINED THAT ASC IS A RESPONSIBLE BIDDER, QUALIFIED TO PERFORM THIS CONTRACT. DETERMINATIONS AS TO WHETHER A BIDDER IS CAPABLE OF PRODUCING AN ITEM IN ACCORDANCE WITH CONTRACT REQUIREMENTS IS A QUESTION OF FACT, AND ABSENT EVIDENCE THAT THE DETERMINATION OF A BIDDER'S CAPABILITIES WAS BASED ON ERROR, FRAUD OR FAVORITISM, THE FINDINGS OF THE CONTRACTING OFFICER ARE GENERALLY CONCLUSIVE. SEE 46 COMP. GEN. 371, 372 (1966). WE FIND NO EVIDENCE IN THE RECORD BEFORE US WHICH WOULD INDICATE ANY IMPROPRIETY IN THE CONTRACTING OFFICER'S DETERMINATION THAT ASC IS CAPABLE OF PRODUCING THE ITEM REQUIRED BY THIS CONTRACT.

IN VIEW OF THE FOREGOING, YOUR PROTEST MUST BE DENIED.