B-173230, SEP 27, 1971

B-173230: Sep 27, 1971

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IT IS A MATTER PRIMARILY WITHIN THE RESPONSIBILITY OF THE CONTRACTING AGENCY TO DETERMINE THE ADEQUACY OF PROPOSALS. GAO FINDS NO BASIS ON WHICH TO DISAGREE WITH THE ADMINISTRATIVE DETERMINATION THAT THE DATA AVAILABLE IN THIS CASE WAS INSUFFICIENT TO ESTABLISH THE EQUALITY OF YOUR PRODUCT. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 4. THIS PART IS A REPLACEMENT ITEM IN SUPPORT OF A SKID-MOUNTED AIR CONDITIONER. THE DATA AVAILABLE AT DGSC WAS NOT ADEQUATE FOR COMPETITIVE PROCUREMENT OR FOR THE DETERMINATION OF EQUALITY OF PRODUCTS OFFERED BY OTHER MANUFACTURERS. THE CONTRACTING OFFICER THEREAFTER MADE A DETERMINATION PURSUANT TO 10 U.S.C. 2304(A)(10) THAT IT WAS IMPRACTICABLE TO OBTAIN COMPETITION BY FORMAL ADVERTISING AND.

B-173230, SEP 27, 1971

BID PROTEST - TECHNICAL EVALUATION - DRAWINGS DENIAL OF PROTEST AGAINST THE AWARD OF A CONTRACT TO MARATHON ELECTRIC MANUFACTURING CORPORATION UNDER AN RFP ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VA. THE SECTION OF THE SOLICITATION APPLICABLE TO PROTESTANT'S BID CLEARLY REQUIRES THAT DRAWINGS BE FURNISHED FOR BOTH THE OFFEROR'S EQUIPMENT, AND THE EQUIPMENT USED AS STANDARD. SINCE PROTESTANT FAILED TO FURNISH THE DRAWINGS ON THE "STANDARD" EQUIPMENT, THEIR OFFER COULD NOT BE TECHNICALLY EVALUATED. FURTHERMORE, IT IS A MATTER PRIMARILY WITHIN THE RESPONSIBILITY OF THE CONTRACTING AGENCY TO DETERMINE THE ADEQUACY OF PROPOSALS, AND GAO FINDS NO BASIS ON WHICH TO DISAGREE WITH THE ADMINISTRATIVE DETERMINATION THAT THE DATA AVAILABLE IN THIS CASE WAS INSUFFICIENT TO ESTABLISH THE EQUALITY OF YOUR PRODUCT.

TO PENN ELECTRIC MOTOR COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 4, 1971, PROTESTING THE AWARD OF A CONTRACT TO MARATHON ELECTRIC MANUFACTURING CORPORATION (MARATHON) UNDER REQUEST FOR PROPOSALS NO. DSA400-71-R-4709, ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER (DGSC), RICHMOND, VIRGINIA.

THE RECORD INDICATES THAT THE CONTRACTING OFFICER AT DGSC RECEIVED A PURCHASE REQUEST FOR 50 EACH, FEDERAL STOCK NUMBER 6105-929-0067, MOTORS, A.C., MARATHON ELECTRIC MODEL NO. 182TTFR7027BB. THIS PART IS A REPLACEMENT ITEM IN SUPPORT OF A SKID-MOUNTED AIR CONDITIONER, AND THE DATA AVAILABLE AT DGSC WAS NOT ADEQUATE FOR COMPETITIVE PROCUREMENT OR FOR THE DETERMINATION OF EQUALITY OF PRODUCTS OFFERED BY OTHER MANUFACTURERS. THE CONTRACTING OFFICER THEREAFTER MADE A DETERMINATION PURSUANT TO 10 U.S.C. 2304(A)(10) THAT IT WAS IMPRACTICABLE TO OBTAIN COMPETITION BY FORMAL ADVERTISING AND, PURSUANT TO ASPR 3-210.2(XIII), THAT IT WAS IMPOSSIBLE TO DRAFT, FOR A SOLICITATION OF BIDS, ADEQUATE SPECIFICATIONS OR ANY OTHER ADEQUATELY DETAILED DESCRIPTION OF THE REQUIRED SUPPLIES.

THE ABOVE-REFERENCED SOLICITATION, ISSUED ON MARCH 10, 1971, DESCRIBED THE ITEMS BEING PURCHASED AS FOLLOWS:

"FSN 6105-929-0067

"MOTOR, AC:

SQUIRREL CAGE INDUCTION, 3 HP, 208 VOLT, 1750 RPM, 3 PH, 60 CYCLES, TEEC, GENERAL ASSY F2, NEMA 182 STANDARD FRAME, NEMA DESIGN B. MARATHON ELECTRIC MODEL NO. 182TTFR7027BB, U/O USAF NO. 65E34046 AIR CONDITIONER, SKID MTD."

UPON PAGE 10 OF THE SOLICITATION APPEARED THE CLAUSE "PRODUCTS OFFERED (1970 APR)" WHICH PROVIDED IN PERTINENT 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.'

"( ) (1) FOR ITEMS WILL FURNISH THE CITED MANUFACTURER'S PRODUCT BEARING THE NUMBER SPECIFIED.

"( ) (4) FOR ITEMS WILL FURNISH A PRODUCT WHICH IS EQUAL IN ALL MATERIAL RESPECTS TO THE PRODUCT REFERENCED IN THE ITEM DESCRIPTION. THE FOLLOWING NOTE IS APPLICABLE.

"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."

OF THE 6 FIRMS SOLICITED, THE FOLLOWING SUBMITTED QUOTATIONS:

UNIT PRICE

UNITED BLOWER CO., INC. $169.45

MARATHON ELECTRIC MFG. CORP. 142.20

PENN ELECTRIC MOTOR CO., INC. 104.32

MARATHON AND UNITED BLOWER CO., INC., A DEALER, OFFERED THE MARATHON MOTOR CITED IN THE PROCUREMENT IDENTIFICATION DESCRIPTION OF THE SOLICITATION. YOU CHECKED PARAGRAPH (4) OF THE "PRODUCTS OFFERED" CLAUSE, QUOTED ABOVE, AND OFFERED TO SUPPLY PENN ELECTRIC MOTOR CO. PART NUMBER TE 3611. ATTACHED TO YOUR QUOTATION WAS A DRAWING SETTING FORTH THE EXTERIOR DIMENSIONS OF MOTORS IN SEVERAL NEMA FRAME SIZES, INCLUDING FRAME 182.

THE CONTRACTING OFFICER FORWARDED YOUR QUOTATION AND DRAWING TO THE DGSC DIRECTORATE OF TECHNICAL OPERATIONS FOR TECHNICAL EVALUATION. THE DIRECTORATE OF TECHNICAL OPERATIONS REPLIED THAT YOUR PRODUCT COULD NOT BE EVALUATED BECAUSE THE DATA SUBMITTED THEREON DID NOT SHOW ELECTRICAL CHARACTERISTICS, ENVIRONMENTAL TESTING AND LIFE EXPECTANCY REQUIREMENTS AND BECAUSE SUFFICIENT DATA ON THE MARATHON MOTOR WERE NOT AVAILABLE TO THE GOVERNMENT AND HAD NOT BEEN FURNISHED BY THE OFFEROR AS REQUIRED BY THE "PRODUCTS OFFERED" CLAUSE OF THE SOLICITATION.

UPON BEING INFORMED OF THE DEFICIENCIES IN THE DATA WHICH YOU SUBMITTED, YOU ADVISED THE PROCURING ACTIVITY THAT YOU WERE REQUESTING OF MARATHON THEIR DRAWING OF THE ITEM BEING PROCURED. YOUR SUBSEQUENT LETTER OF APRIL 20, 1971, TRANSMITTED ANOTHER DRAWING IDENTICAL TO THAT SUBMITTED WITH YOUR QUOTATION WITH THIS ADDITIONAL INFORMATION TYPED THEREON:

"3HP, 208 VOLTS, 60 CYCLES, 1750 R.P.M., 3 PHASE, T.E.F.C. GENERAL ASS F2 NEMA STD. 182, DESIGN B BALL BEARING

"SEE MARATHON ELEC. MOD 182TTFR7027BB"

THIS ADDITIONAL DRAWING WAS ALSO EVALUATED BY THE DIRECTORATE OF TECHNICAL OPERATIONS, WHICH ADVISED THE CONTRACTING OFFICER THAT THE ACCEPTABILITY OF YOUR PART STILL HAD NOT BEEN ESTABLISHED.

SINCE IT WAS NOT CLEAR FROM YOUR LETTER OF APRIL 20 WHETHER YOU HAD OBTAINED DATA FROM MARATHON ON ITS PRODUCT, YOU WERE AGAIN CONTACTED BY THE PROCURING ACTIVITY. YOU INFORMED THE BUYER THAT YOU HAD THE MARATHON DRAWING FOR THE ITEM INVOLVED, BUT NOT THE MARATHON SPECIFICATIONS INVOLVING ENVIRONMENTAL AND LIFE EXPECTANCY TESTS. HOWEVER, WE FIND NO EVIDENCE OF RECORD THAT AT ANY TIME DURING THIS PROCUREMENT DID YOU SUBMIT A DRAWING OF THE MARATHON MOTOR MODEL 182TTFR7027BB.

SINCE THE PROCURING ACTIVITY HAD BEEN UNABLE TO ESTABLISH THE TECHNICAL ACCEPTABILITY OF YOUR PRODUCT, AND THE QUOTATION OF UNITED BLOWER CORPORATION WAS NOT DEEMED COMPETITIVE AS TO PRICE, NEGOTIATIONS WERE LIMITED TO MARATHON. MARATHON SUBSEQUENTLY REDUCED ITS QUOTATION TO $112 EACH, REFLECTING THE GOVERNMENT'S ACCEPTANCE OF ITS COMMERCIAL PACKING IN LIEU OF MILITARY PACKING. AWARD AT THAT PRICE WAS MADE TO MARATHON ON MAY 19, 1971. UPON LEARNING OF THE AWARD, YOU OFFERED TO SUBMIT A SAMPLE MOTOR TO THE GOVERNMENT FOR TESTING. THIS OFFER WAS REJECTED UPON THE ADVICE OF THE ENGINEERING SUPPORT ACTIVITY THAT A SAMPLE MOTOR, WITHOUT ACCOMPANYING DATA ON ELECTRICAL, ENVIRONMENTAL TESTING AND LIFE EXPECTANCY REQUIREMENTS, WOULD SERVE NO USEFUL PURPOSE IN EVALUATING OFFERS UNDER THE "PRODUCTS OFFERED" CLAUSE. YOU THEN PROTESTED TO OUR OFFICE.

"YOU CONTEND THAT THE DRAWINGS OF PART NUMBER TE 3611 SUBMITTED WITH YOUR PROPOSAL CLEARLY MET THE REQUIREMENTS OF PARAGRAPH (4), NOTES (A) AND (B) OF THE "PRODUCTS OFFERED" CLAUSE. NOTE (B), WHICH WAS NOT CHECKED, DID NOT FORM A PART OF THIS SOLICITATION ALTHOUGH A VIRTUALLY IDENTICAL PROVISION APPEARS IN NOTE (A). AS YOU RECOGNIZE IN YOUR LETTER OF JUNE 4, 1971, NOTE (A) DOES NOT MERELY REQUIRE OFFERORS TO FURNISH "DRAWINGS AND OTHER DATA WHICH WILL CLEARLY DESCRIBE THE CHARACTERISTICS AND FEATURES OF THEIR PRODUCT." IT CONTAINS THE ADDITIONAL REQUIREMENT THAT OFFERORS "MUST FURNISH DRAWINGS OR OTHER DATA COVERING 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."

THE RECORD BEFORE US INDICATES THAT THE MOTOR BEING PROCURED IS NOT AN "OFF THE SHELF" ITEM, BUT MUST BE SPECIALLY MANUFACTURED FOR EACH ORDER. THIS ITEM HAS BEEN PROCURED ONCE IN EACH OF THE THREE PRECEDING YEARS IN RELATIVELY SMALL QUANTITIES RANGING FROM 9 TO 57 EACH ANNUALLY. EXISTING FEDERAL OR MILITARY SPECIFICATION OR PURCHASE DESCRIPTION ADEQUATELY DESCRIBES THE ITEM. UNDER THESE CIRCUMSTANCES, THE REQUIREMENTS OF PARAGRAPH (4), NOTE (A) OF THE "PRODUCTS OFFERED" CLAUSE APPEAR NECESSARY TO ASSURE THE GOVERNMENT THAT PRODUCTS OFFERED WILL FULFILL ITS NEEDS. SEE B-172798, SEPTEMBER 10, 1971.

WITH REGARD TO THE REASONS ADVANCED IN YOUR PROTEST AS TO WHY YOUR PRODUCT SHOULD NOT HAVE BEEN REJECTED, IT IS ADMINISTRATIVELY REPORTED:

"IN ITS 4 JUNE LETTER PENN ELECTRIC STATES THAT THE ITEM DESCRIPTION REFERENCES NEMA STANDARDS THAT ARE READILY AVAILABLE TO OUR ENGINEERING SUPPORT ACTIVITY (ESA). THE NEMA STANDARDS REFERENCED ARE FRAME SIZE 182 AND DESIGN B. PENN ELECTRIC'S DRAWING *** SHOWS THAT ITS ITEM HAS A 182 NEMA FRAME SIZE. CONSEQUENTLY, ITS OFFER OBVIOUSLY WAS NOT REJECTED FOR FAILURE TO MEET THIS NEMA STANDARD. NEMA DESIGN B DESCRIBES CERTAIN FEATURES OF THE MOTOR REQUIRED *** BUT HAS NOTHING TO DO WITH ENVIRONMENTAL TESTING AND LIFE EXPECTANCY REQUIREMENTS. IN ITS 4 JUNE LETTER PENN ELECTRIC ALSO STATES THAT A QUICK LOOK AT THE FEDERAL SUPPLY CATALOGUE WOULD INFORM (ESA) THAT ENVIRONMENTAL TESTING IS NOT REQUIRED. ENVIRONMENTAL TESTS ARE NOT MENTIONED IN THIS SHORT FEDERAL SUPPLY CATALOGUE DESCRIPTION OF THE STOCK NUMBER. GENERALLY, ALTHOUGH THE FEDERAL SUPPLY CATALOGUE LISTS CERTAIN CHARACTERISTICS OF THE ITEMS BEING CARRIED UNDER THE STATED FEDERAL STOCK NUMBER, SUCH DESCRIPTIONS ARE NOT A SUBSTITUTE FOR SPECIFICATIONS OR DETAILED PURCHASE DESCRIPTIONS. CONSEQUENTLY, THE FACT THAT A FEDERAL SUPPLY CATALOGUE DESCRIPTION DOES NOT MENTION AN ENVIRONMENTAL TEST DOES NOT SHOW THAT SUCH TESTS MAY NOT BE REQUIRED TO COMPLY FULLY WITH THE REQUIREMENTS OF THE FEDERAL OR MILITARY SPECIFICATION OR THE BRAND NAME PART NUMBER SHOWN THEREIN."

WHILE IT IS A MATTER PRIMARILY WITHIN THE ADMINISTRATIVE RESPONSIBILITY OF THE CONTRACTING AGENCY TO DETERMINE THE ADEQUACY OF PROPOSALS, WE HAVE ALSO EXAMINED THE COPIES OF THE DRAWINGS SUBMITTED WITH YOUR PROPOSAL. BASED UPON SUCH EXAMINATION, AND IN VIEW OF YOUR FAILURE TO PROVIDE A COPY OF THE MARATHON DRAWING WHICH YOU STATE YOU POSSESSED, WE FIND NO BASIS ON WHICH WE MAY PROPERLY DISAGREE WITH THE ADMINISTRATIVE DETERMINATION THAT THE DATA AVAILABLE WAS INSUFFICIENT TO ESTABLISH THE EQUALITY OF YOUR PRODUCT.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.