B-173256, SEP 3, 1971

B-173256, SEP 3, 1971

BID PROTEST - BIDDER RESPONSIBILITY - BRAND NAME OR EQUAL DENYING PROTEST OF HY-GAIN ELECTRONICS CORP. AGAINST THE AWARD OF A CONTRACT TO LUNAR INDUSTRIES UNDER AN RFP ISSUED FOR 5 HF-ANTENNAS BY THE NAVY SUPPLY CENTER, CHARLESTON, S.C. EVEN THOUGH LUNAR IS A RECENTLY ORGANIZED COMPANY, THE PROCURING ACTIVITIES' DETERMINATION THAT IT IS QUALIFIED TO PERFORM ITS CONTRACT OBLIGATIONS WILL BE ACCEPTED UNLESS IT IS CLEARLY AND UNMISTAKABLY IN ERROR. THERE IS AMPLE DATA IN THE RECORD TO OVERCOME PROTESTANT'S ASSERTIONS THAT LUNAR COULD NOT DELIVER THE ITEMS ON SCHEDULE, AND, AS A NEW FIRM, COULD NOT HAVE HAD TIME TO PRODUCE ANTENNA MODELS.

TO HY-GAIN ELECTRONICS CORPORATION:

REFERENCE IS MADE TO YOUR TELEFAX DATED JUNE 11, 1971, AND SUBSEQUENT CORRESPONDENCE CONCERNING YOUR PROTEST UNDER REQUEST FOR PROPOSAL (RFP) NO. N00612-71-R-0169, ISSUED BY THE NAVAL SUPPLY CENTER, CHARLESTON, SOUTH CAROLINA, ON APRIL 13, 1971, FOR A REQUIREMENT OF 5 HF-ANTENNAS, GRANGER ASSOCIATES MODEL 753C-25 OR EQUAL. THE ESSENTIAL CHARACTERISTICS OF THE BRAND NAME ITEM INCLUDED THE FOLLOWING PERTINENT SALIENT CHARACTERISTICS:

"ELEVATION PATTERN: DIAGRAMS SHOWING 'ELEVATION PLANE RADIATION PATTERNS' MUST BE SUBMITTED TO THE CONTRACTING OFFICER, ... , FOR REVIEW AND APPROVAL AT TIME OF SUBMISSIONS OF PROPOSALS FOR ALL DESIGNS OTHER THAN GRANGER ASSOCIATES MODEL 753C-25.

"DIRECTIVE GAIN: 4.0 DB NOMINAL RELATIVE TO ISOTROPIC.

"NOMINAL IMPEDANCE: 50 OHM (THE ANTENNA IMPEDANCE CHARACTERISTICS SHALL BE SUCH THAT IT SHALL HAVE A VSWR OF 2.5.:1 OR LESS OVER ITS SPECIFIED FREQUENCY RANGE WHEN TERMINATED TO A 50 OHM TRANSMISSION LINE.)

"MAXIMUM VSWR: 2.5:1 RELATIVE TO 50 OHMS."

WHEN PROPOSALS WERE OPENED ON MAY 3, 1971, IT WAS NOTED THAT LUNAR INDUSTRIES, INC., HAD SUBMITTED THE LOWEST OFFER FOR THE REQUIREMENT AND HAD OFFERED ITS MODEL VCM-280 AS A PRODUCT EQUAL TO THE REQUIRED BRAND NAME UNIT. LUNAR ALSO ACKNOWLEDGED THE GOVERNMENT'S REVISED DELIVERY SCHEDULE OF 45 DAYS AFTER DATE OF CONTRACT, IN LIEU OF THE ORIGINALLY SPECIFIED SCHEDULE OF 30 DAYS AFTER DATE OF CONTRACT.

IN THIS REGARD, LUNAR SUBMITTED WITH ITS PROPOSAL A PHOTOGRAPH OF ITS OFFERED MODEL TOGETHER WITH DATA DESCRIBING THE TECHNICAL CHARACTERISTICS OF ITS MODEL VCM-280. THE CONCERN ALSO SUBMITTED VERTICAL RADIATION PATTERNS WHICH ILLUSTRATED THE ELEVATION PLANE PATTERN CHARACTERISTICS OF THE UNIT BEING OFFERED.

LUNAR'S PROPOSAL ALSO SET FORTH THE FOLLOWING STATEMENT CONCERNING TESTING EQUIPMENT MAINTAINED BY THE COMPANY:

"LUNAR INDUSTRIES MAINTAINS A COMPLETE LINE OF GENERAL RADIO TEST EQUIPMENT NECESSARY TO VERIFY THE ELECTRICAL SPECIFICATION REQUIREMENTS OF ALL ANTENNAS PRODUCED. FOR IMPEDANCE MEASUREMENTS A GR-1606 BRIDGE IS UTILIZED IN CONJUNCTION WITH THE NECESSARY SIGNAL GENERATORS AND DETECTORS NECESSARY TO VERIFY ALL READINGS. IN ADDITION, ELECTRONIC VOLT METERS COUPLED WITH ACCURATE FIELD STRENGTH DEVICES ARE UTILIZED IN DETERMINING RADIATION PATTERN PERFORMANCE. ALL OF THE TEST GEAR MAINTAINED AND UTILIZED IS CALIBRATED AND TRACEABLE TO THE NATIONAL BUREAU OF STANDARDS."

BASED UPON THE ABOVE DATA AND INFORMATION THE PROCURING ACTIVITY DETERMINED THAT LUNAR'S MODEL VCM-280 WAS EQUAL IN ALL ESSENTIAL RESPECTS TO THE BRAND NAME PRODUCT, AND THEN PROCEEDED TO DETERMINE THE RESPONSIBILITY OF LUNAR IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-407.2. THE RECORD SHOWS THAT IN MAY 1971, REPRESENTATIVES OF THE DEFENSE CONTRACT ADMINISTRATIVE SERVICES OFFICE (DCASO) COMPLETED AN EVALUATION OF LUNAR'S FACILITIES AND EQUIPMENT TO ASCERTAIN WHETHER THE CONCERN MET THE STANDARDS OF RESPONSIBILITY FOR PROSPECTIVE CONTRACTORS.

THE EVALUATION REPORT INDICATED THAT LUNAR WAS CAPABLE OF PERFORMING THE WORK REQUIREMENTS OF THE IFB. THE CONCERN ACHIEVED ACCEPTABLE RATINGS FOR ITS TECHNICAL CAPABILITY, PRODUCTION CAPABILITY, PLANT FACILITIES AND EQUIPMENT, FINANCIAL CAPABILITY, QUALITY ASSURANCE CAPABILITY AND LABOR RESOURCE. IN DETERMINING THAT LUNAR HAD THE ABILITY TO MEET THE REQUIRED DELIVERY SCHEDULE, THE SURVEY PERSONNEL THOROUGHLY REVIEWED THE COMPANY'S PRODUCTION PLAN AND SUBCONTRACTING ARRANGEMENTS. THE REPORT ALSO CONTAINED A LISTING OF 46 DIFFERENT ITEMS OF ELECTRONICS TEST EQUIPMENT POSSESSED BY LUNAR.

THE SURVEY CONCLUDED WITH THE FOLLOWING FINDINGS: "WHILE LUNAR INDUSTRIES, INC., IS A RECENTLY ORGANIZED COMPANY, IT HAS BEEN FORMED BY TECHNICALLY QUALIFIED PEOPLE. BEING A NEWLY ESTABLISHED COMPANY, IT LACKS SOME OF THE IN-HOUSE FACILITIES NECESSARY TO PROVIDE THE ABOVE ITEMS, HOWEVER, A PLAN WAS PRESENTED TO SUBCONTRACT MOST OF THE PRODUCTION WORK. THIS COMPANY HAS A SMALL NUMBER OF EMPLOYEES, BUT BY THE SAME TOKEN, SINCE MOST OF THE PRODUCTION WORK WOULD BE SUBCONTRACTED, A LARGE NUMBER OF PEOPLE WOULD NOT BE MANDATORY. *** IT IS FELT THAT WITH THE CAPABILITIES OF THE PERSONNEL AVAILABLE, THIS COMPANY CAN PROVIDE THE SPECIFIED ANTENNAS IN THE TIME FRAME OF THE RFP PROVIDED MATERIAL PROCUREMENTS AND SUBCONTRACTOR'S COMPLETION DATES ARE MET."

IN VIEW OF THE ABOVE FINDINGS THE SURVEY TEAM RECOMMENDED THAT AN AWARD BE CONCLUDED WITH LUNAR, THE CONTRACTING OFFICER DETERMINED THAT LUNAR WAS A RESPONSIBLE OFFEROR FOR THE PROCUREMENT, AND AN AWARD WAS MADE TO THAT COMPANY ON JUNE 7, 1971.

YOU STATE THAT IN ORDER FOR LUNAR TO HAVE FURNISHED THE DATA WHICH WAS REQUIRED IN ORDER TO COMPLY WITH THE ABOVE-LISTED SALIENT CHARACTERISTICS OF THE IFB, IT WOULD HAVE BEEN NECESSARY FOR THAT FIRM TO HAVE ENGINEERED, DESIGNED, AND CONSTRUCTED A SCALE MODEL, TO DERIVE RADIATION PATTERNS AND DIRECTIVE GAIN, AND A FULL SCALE MODEL FOR VSWR AND NOMINAL 50 OHM IMPEDANCE MEASUREMENTS. IN THIS REGARD YOU STATE THAT IT IS HIGHLY UNLIKELY THAT LUNAR HAD TIME TO PRODUCE ANTENNA MODELS SINCE THE COMPANY COMMENCED BUSINESS IN FEBRUARY OF THIS YEAR, AND THAT EVEN IF THE CONCERN HAD SUCH MODELS, IT DOES NOT HAVE THE TEST EQUIPMENT NEEDED TO VERIFY THE RADIATION PATTERN MEASUREMENTS AND MODEL IMPEDANCE.

ADDITIONALLY, YOU STATE THAT IT WOULD BE HIGHLY UNLIKELY THAT THE CONCERN COULD DELIVER THE ITEMS ON ANY SCHEDULE ACCEPTABLE TO THE GOVERNMENT. ACCORDINGLY, YOU REQUEST CANCELLATION OF THE CONTRACT AND THAT AN AWARD BE MADE TO YOUR CONCERN FOR THE REQUIREMENT.

THERE IS NO REQUIREMENT IN THE RFP THAT BIDDERS OFFERING "EQUAL" ITEMS MAKE AVAILABLE ANY PHYSICAL MODELS OF THE PROPOSED DESIGN. IN ANY EVENT, THE DATA FURNISHED WITH LUNAR'S BID, AS INDICATED ABOVE, CLEARLY INDICATES THAT LUNAR POSSESSED AN ACTUAL WORKING MODEL OF THE ITEM IT OFFERED.

IN ADDITION, THE DATA FURNISHED BY LUNAR WAS EVALUATED BY THE AGENCY'S TECHNICAL PERSONNEL AND WAS FOUND TO SATISFY THE REQUIREMENTS OF THE RFP. ACCORDINGLY, IT IS EVIDENT THAT LUNAR HAD THE CAPACITY TO FURNISH THE REQUIRED DATA.

WITH RESPECT TO YOUR ALLEGATION THAT THE COMPANY LACKED SUFFICIENT TESTING GEAR TO VERIFY THE RESULTS OF THE DATA FURNISHED WITH ITS OFFER, LUNAR STATED THAT IT HAS A COMPLETE LINE OF TEST EQUIPMENT NECESSARY FOR VERIFYING THE ELECTRICAL SPECIFICATIONS OF ALL ANTENNAS PRODUCED. ADDITION, THE SURVEY TEAM, AS NOTED ABOVE, COMPILED AN EXTENSIVE LIST OF TEST EQUIPMENT WHICH LUNAR POSSESSED, AND MADE POSITIVE FINDINGS ON THE ABILITY OF LUNAR TO PERFORM. ACCORDINGLY, THE RECORD DOES NOT DEMONSTRATE THAT THE COMPANY LACKS SUFFICIENT EQUIPMENT FOR PERFORMANCE OF ITS CONTRACT OBLIGATIONS IN THE MANNER PLANNED.

IN DECIDING PROTESTS OF THIS NATURE, IT IS THE WELL-ESTABLISHED POSITION OF THIS OFFICE THAT THE DRAFTING OF PROPER SPECIFICATIONS, INCLUDING THE USE OF BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS, AND THE FACTUAL DETERMINATION OF WHETHER A PRODUCT OFFERED THEREUNDER CONFORMS TO THOSE SPECIFICATIONS, ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING AGENCY. BASED UPON OUR EXAMINATION OF THE RECORD WE CANNOT CONCLUDE THAT THE NAVY'S TECHNICAL DETERMINATION, THAT THE MODEL OFFERED BY LUNAR MET ALL THE REQUIREMENTS OF THE REFERENCED BRAND NAME, IS CLEARLY AND UNMISTAKABLY IN ERROR.

WITH RESPECT TO WHETHER LUNAR SHOULD HAVE BEEN DETERMINED TO BE RESPONSIBLE, IT IS ALSO WELL ESTABLISHED THAT THE PROJECTION OF A BIDDER'S ABILITY TO PERFORM IF AWARDED A CONTRACT IS OF NECESSITY 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 ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICERS INVOLVED.

WE HAVE CAREFULLY REVIEWED AND CONSIDERED THE INFORMATION RELIED UPON BY NAVY IN MAKING A DETERMINATION THAT LUNAR WAS A RESPONSIBLE CONCERN AND WE FIND NO BASIS UPON WHICH OUR OFFICE WOULD BE JUSTIFIED IN CONCLUDING THAT THERE WAS AN ABUSE OF THE ADMINISTRATIVE DISCRETION EXERCISED. IN VIEW THEREOF, WE CANNOT OBJECT TO THE CONTRACTING OFFICER'S DETERMINATION THAT LUNAR WAS A RESPONSIBLE CONTRACTOR FOR PURPOSES OF THIS PROCUREMENT AND THAT THE COMPANY COULD COMPLY WITH THE REVISED DELIVERY SCHEDULE.

FOR THE REASONS SET FORTH ABOVE, YOUR PROTEST MUST BE DENIED.