B-173278, OCT 26, 1971

B-173278: Oct 26, 1971

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WHERE THE GROUNDS FOR THE PROTEST ARE VARIATIONS ON A BASIC BELIEF THAT NEITHER OF THE TWO LOW BIDDERS IS CAPABLE OF PRODUCING THE SYSTEM IN ACCORDANCE WITH SPECIFICATIONS. PROTESTANT'S UNSUPPORTED EXPRESSION IS INSUFFICIENT TO OVERCOME THE ADMINISTRATIVE FINDINGS THAT THE LOW BIDDER MAY PROPERLY BE CONSIDERED A RESPONSIBLE CONTRACTOR WHO HAS PRODUCED A SIMILAR SYSTEM AND WHO IS CAPABLE OF PRODUCING THE SYSTEM CALLED FOR IN THIS SOLICITATION. THE SOLICITATION WAS ISSUED ON APRIL 9. FOUR BIDS WERE RECEIVED AND OPENED ON MAY 11. MARYLAND IN YOUR LETTER OF JUNE 11 YOU STATE THAT YOU WERE ADVISED THAT THE BIDS OF THE TWO LOW BIDDERS ARE NOT IN ACCORDANCE WITH THE SPECIFICATIONS BUT THAT THE CONTRACTING OFFICER INTENDS TO AWARD THE CONTRACT TO THE LOW BIDDER EVEN THOUGH THE SPECIFICATIONS HAVE NOT BEEN MET.

B-173278, OCT 26, 1971

BID PROTEST - BIDDER RESPONSIBILITY - UNSUPPORTED ALLEGATIONS DECISION DENYING PROTEST BY THIRD LOW BIDDER AGAINST AWARD OF A CONTRACT TO LOW BIDDER, OCEAN DATA EQUIPMENT CORPORATION, OR SECOND LOW BIDDER, INTEROCEAN SYSTEMS, INC., UNDER A SOLICITATION ISSUED BY THE ARMY ENGINEER DISTRICT, NEW ORLEANS, LA., FOR FIVE SETS OF A WATER QUALITY MONITORING SYSTEM. WHERE THE GROUNDS FOR THE PROTEST ARE VARIATIONS ON A BASIC BELIEF THAT NEITHER OF THE TWO LOW BIDDERS IS CAPABLE OF PRODUCING THE SYSTEM IN ACCORDANCE WITH SPECIFICATIONS, PROTESTANT'S UNSUPPORTED EXPRESSION IS INSUFFICIENT TO OVERCOME THE ADMINISTRATIVE FINDINGS THAT THE LOW BIDDER MAY PROPERLY BE CONSIDERED A RESPONSIBLE CONTRACTOR WHO HAS PRODUCED A SIMILAR SYSTEM AND WHO IS CAPABLE OF PRODUCING THE SYSTEM CALLED FOR IN THIS SOLICITATION. THE PROTEST MUST THEREFORE BE DENIED.

TO MARTEK INSTRUMENTS, INC.:

WE REFER TO YOUR LETTERS OF JUNE 11 AND 29, 1971, PROTESTING AWARD TO ANY OTHER FIRM UNDER SOLICITATION NO. DACW29-71-B-0153, ISSUED BY THE U.S. ARMY ENGINEER DISTRICT, NEW ORLEANS, LOUISIANA.

THE SOLICITATION WAS ISSUED ON APRIL 9, 1971, AND CALLED FOR BIDS ON FIVE SETS OF EQUIPMENT FOR MEASURING WATER TEMPERATURE CONDUCTIVITY, DISSOLVED OXYGEN AND PH VALUES OF FRESH AND SEA WATER IN ACCORDANCE WITH SPECIFICATIONS SET FORTH IN SECTION F OF THE SOLICITATION.

FOUR BIDS WERE RECEIVED AND OPENED ON MAY 11, 1971, AS FOLLOWS:

PROMPT

UNIT TOTAL PAYMENT

BIDDER QUANTITY PRICE PRICE DISCOUNT

OCEAN DATA EQUIPMENT CORP. 5 $3,500 $17,500 NET

EAST PROVIDENCE, R. I.

INTEROCEAN SYSTEMS, INC. 5 $3,642 $18,210 NET

SAN DIEGO, CALIF.

MARTEK INSTRUMENTS, INC. 5 $4,305 $22,115 NET

NEWPORT BEACH, CALIF.

DYNAMIC ELECTRO SYSTEMS, INC. 5 $6,000 $30,000 NET

BELTSVILLE, MARYLAND

IN YOUR LETTER OF JUNE 11 YOU STATE THAT YOU WERE ADVISED THAT THE BIDS OF THE TWO LOW BIDDERS ARE NOT IN ACCORDANCE WITH THE SPECIFICATIONS BUT THAT THE CONTRACTING OFFICER INTENDS TO AWARD THE CONTRACT TO THE LOW BIDDER EVEN THOUGH THE SPECIFICATIONS HAVE NOT BEEN MET. YOUR LETTER OF JUNE 29 SETS FORTH FIVE ADDITIONAL GROUNDS FOR YOUR PROTEST. YOU STATE THAT, TO THE BEST OF YOUR KNOWLEDGE:

1. THE TWO LOW BIDDERS DO NOT MANUFACTURE DISSOLVED OXYGEN OR PH SENSORS.

2. THE TWO LOW BIDDERS HAVE NEVER SOLD SUCH A SYSTEM AND CANNOT MEET THE 60 DAY DELIVERY.

3. THEIR EXISTING TEMPERATURE SCALES DO NOT HAVE THE SELECTABLE RANGES CALLED FOR IN THE SPECIFICATIONS.

4. THEIR EXISTING CONDUCTIVITY SCALES DO NOT HAVE THE SELECTABLE RANGES CALLED FOR IN THE SPECIFICATIONS.

5. THEY DO NOT HAVE NOR CAN THEY PURCHASE A DISSOLVED OXYGEN OR PH SENSOR WITH A 100 METER DEPTH CAPABILITY.

IN HIS REPORT ON THIS MATTER, THE CONTRACTING OFFICER STATES CATEGORICALLY THAT HE HAS INFORMED NO ONE THAT THE BIDS OF OCEAN DATA AND INTEROCEAN SYSTEMS ARE NOT RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION NOR HAS HE INFORMED ANYONE THAT HE INTENDS TO MAKE AN AWARD TO OCEAN DATA ALTHOUGH THE SPECIFICATIONS HAVE NOT BEEN MET.

THE REPORT FURTHER SHOWS THAT ON MAY 13, THE BIDS WERE FORWARDED TO THE ENGINEERING DIVISION OF THE NEW ORLEANS DISTRICT FOR EVALUATION AND RECOMMENDATION. ON JUNE 23 THE ENGINEERING DIVISION RECOMMENDED AWARD TO THE APPARENT LOW BIDDER, OCEAN DATA, SUBJECT TO OBTAINING A SATISFACTORY PRE-AWARD SURVEY. IT WAS THE OPINION OF THE EVALUATOR THAT THE EQUIPMENT OFFERED BY OCEAN DATA EXCEEDED THE REQUIREMENTS OF THE SPECIFICATIONS. THE CONTRACTING OFFICER CONCURS IN THAT EVALUATION.

THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION, BOSTON, CONDUCTED A PRE-AWARD SURVEY OF OCEAN DATA, BUT NO SURVEY OF THE SECOND LOW BIDDER WAS REQUESTED OR CONDUCTED. THE SURVEY DISCLOSES THAT OCEAN DATA IS A PRODUCER OF SONAR TESTING AND WATER POLLUTION MONITORING DEVICES. WITH REFERENCE TO GROUNDS 1, 2 AND 5 OF YOUR PROTEST, THE REPORT SHOWS THAT OCEAN DATA EITHER PRODUCES OR CAN OBTAIN ALL OF THE COMPONENTS NECESSARY FOR SYSTEMS MEETING THE SPECIFICATIONS IN THE INVITATION. OCEAN DATA HAS, IN FACT, PRODUCED A SIMILAR MONITORING SYSTEM (WHICH HAS BEEN OPERATING SATISFACTORILY SINCE FEBRUARY 1971 IN RHODE ISLAND WATERS) FOR THE NATIONAL MARINE WATER QUALITY LABORATORY OF THE WATER QUALITY OFFICE OF THE ENVIRONMENTAL PROTECTION AGENCY. THE SURVEY CONCLUDES THAT OCEAN DATA HAS A RECORD OF SATISFACTORY PERFORMANCE ON FIVE CONTRACTS UNDER THE ADMINISTRATION OF DCASR, BOSTON, AND HAS THE ABILITY TO MEET THE REQUIRED DELIVERY SCHEDULE. AN AWARD TO OCEAN DATA IS RECOMMENDED.

WITH SPECIFIC REFERENCE TO GROUNDS 3 AND 4 OF YOUR PROTEST, THE STATEMENT OF THE CONTRACTING OFFICER RELATES THAT OCEAN DATA PROPOSES TO FURNISH A SYSTEM THAT WILL PROVIDE ALL THE READOUT RANGES REQUIRED BY THE SPECIFICATIONS FOR EACH OF THE FOUR PARAMETERS OF TEMPERATURE, CONDUCTIVITY, DISSOLVED OXYGEN AND PH.

YOUR INITIAL LETTER OF PROTEST CONTAINS CERTAIN NON-SPECIFIC ALLEGATIONS THAT THE TWO LOW BIDS ARE NOT IN ACCORDANCE WITH THE SPECIFICATIONS, BUT NEVERTHELESS THE CONTRACTING OFFICER INTENDS TO MAKE AN AWARD TO THE LOW BIDDER. AFTER YOU WERE ADVISED THAT 4 C. F. R. 20.1 REQUIRES A STATEMENT OF THE FACTS AND CIRCUMSTANCES CONSTITUTING THE GROUNDS FOR YOUR PROTEST, YOU RESPONDED IN YOUR SECOND LETTER BY MAKING NO FURTHER REFERENCE TO THE INTENTIONS OF THE CONTRACTING OFFICER BUT MERELY STATING FIVE AREAS IN WHICH YOU BELIEVE THE TWO LOW BIDDERS CANNOT COMPLY WITH THE SPECIFICATIONS. WE MUST THEREFORE CONCLUDE THAT THE ENTIRE BASIS FOR YOUR PROTEST IS CONTAINED IN THE FIVE GROUNDS STATED IN YOUR SECOND LETTER, AND WE WILL CONSIDER THE FIVE GROUNDS IN THE ORDER PRESENTED, INSOFAR AS THEY RELATE TO THE LOW BIDDER.

YOUR FIRST GROUND OF PROTEST IS THAT OCEAN DATA DOES NOT MANUFACTURE DISSOLVED OXYGEN OR PH SENSORS. WE HAVE EXAMINED THE INVITATION IN QUESTION AND FIND NOTHING THEREIN WHICH REQUIRED THAT THESE PARTICULAR COMPONENTS BE MANUFACTURED BY THE BIDDER. WE MUST CONCLUDE THEREFORE THAT YOUR FIRST GROUND PRESENTS NO VALID BASIS FOR OBJECTION.

IN THE SECOND GROUND OF YOUR PROTEST YOU STATE THAT, TO THE BEST OF YOUR KNOWLEDGE, OCEAN DATA HAS NEVER SOLD SUCH A SYSTEM BEFORE AND THEREFORE YOU BELIEVE THAT THEY CANNOT DELIVER A SYSTEM WITHIN 60 DAYS. HOWEVER, SINCE THE RECORD INDICATES THAT OCEAN DATA HAS PRODUCED A SIMILAR SYSTEM FOR THE NATIONAL MARINE WATER QUALITY LABORATORY AND HAS A SATISFACTORY RATING FOR TECHNICAL CAPABILITY, PRODUCTION CAPABILITY AND PERFORMANCE ON OTHER GOVERNMENT CONTRACTS, AS SHOWN BY THE PRE-AWARD SURVEY, IT WOULD APPEAR THAT YOUR BELIEF IN OCEAN DATA'S INABILITY TO PERFORM IS WITHOUT FOUNDATION IN FACT.

YOUR THIRD AND FOURTH GROUNDS STATE YOUR OPINION THAT OCEAN DATA'S EXISTING TEMPERATURE AND CONDUCTIVITY SCALES DO NOT HAVE THE SELECTABLE RANGES CALLED FOR IN THE SPECIFICATIONS. HOWEVER, THESE OBSERVATIONS STOP SHORT OF ALLEGING THAT OCEAN DATA'S BID DOES NOT OFFER TO FURNISH SCALES THAT MEET THE SPECIFICATIONS. WHETHER OR NOT SOME OTHER PREVIOUSLY EXISTING SCALES THAT YOU ARE AWARE OF MEET THE SPECIFICATIONS HAS NO BEARING ON THE RESPONSIVENESS OF OCEAN DATA'S BID. THE ONLY RELEVANT QUESTION HERE IS WHETHER OCEAN DATA'S BID CONFORMS TO THE REQUIREMENTS IN THE INVITATION. IN THIS REGARD, THE REPORT FROM THE CONTRACTING OFFICER STATES THAT OCEAN DATA PROPOSES TO FURNISH A SYSTEM THAT WILL PROVIDE ALL THE READOUT RANGES REQUIRED BY THE SPECIFICATIONS FOR EACH OF THE FOUR PARAMETERS. OUR EXAMINATION OF THE BID OF OCEAN DATA DISCLOSES THAT IT PROPOSES MEASUREMENT RANGES OF 5 TO 40 DEGS C WITH ACCURACY OF OR - 0.1 DEG C FOR TEMPERATURE AND 0 TO 65 MILLIMHO/CM WITH ACCURACY OF OR - 0.1 MILLIMHO/CM FOR CONDUCTIVITY. THESE RANGES MEET OR EXCEED THE SPECIFICATIONS WHICH CALL FOR RANGES OF -2 TO 30 DEGS C WITH ACCURACY OF

OR - 0.1 DEG C FOR TEMPERATURE AND 0 TO 65 MILLIMHO/CM WITH ACCURACY OF OR - 0.1 MILLIMHO/CM FOR CONDUCTIVITY. IN VIEW THEREOF, IT IS OUR OPINION THAT THIS PORTION OF YOUR PROTEST PROVIDES NO VALID GROUNDS FOR OBJECTION TO THE PROPOSED AWARD TO OCEAN DATA.

THE FIFTH GROUND FOR YOUR PROTEST IS YOUR ALLEGATION THAT TO THE BEST OF YOUR KNOWLEDGE OCEAN DATA DOES NOT HAVE, NOR CAN THEY PURCHASE, A DISSOLVED OXYGEN OR PH SENSOR WITH 100 METER DEPTH CAPABILITY. AS IN THE PREVIOUS FOUR GROUNDS FOR YOUR PROTEST, YOU SUBMIT NOTHING TO INDICATE THE BASIS FOR YOUR BELIEF. ON THE OTHER HAND, THE PRE-AWARD SURVEY DISCLOSES THAT OCEAN DATA EITHER MANUFACTURES OR CAN OBTAIN ALL THE COMPONENTS NECESSARY FOR SYSTEMS MEETING THE SPECIFICATIONS IN THE INVITATION.

ALL FIVE OF THE GROUNDS FOR YOUR PROTEST APPEAR TO BE VARIATIONS OF YOUR BASIC BELIEF THAT NEITHER OF THE TWO LOW BIDDERS IS CAPABLE OF PRODUCING A WATER QUALITY MONITORING SYSTEM IN ACCORDANCE WITH THE SPECIFICATIONS. INDICATED ABOVE, IT WOULD ALSO APPEAR THAT INSOFAR AS OCEAN DATA, THE LOW BIDDER, IS CONCERNED, YOUR BELIEF IS BASED ON INCOMPLETE INFORMATION. CONVERSELY, THE RECORD INDICATES THAT OCEAN DATA MAY PROPERLY BE CONSIDERED A RESPONSIBLE CONTRACTOR, WHO HAS PRODUCED A SIMILAR SYSTEM AND WHO IS CAPABLE OF PRODUCING THE SYSTEMS CALLED FOR IN THIS INVITATION IN ACCORDANCE WITH THE SPECIFICATION AND WITHIN THE REQUIRED DELIVERY SCHEDULE, AND YOUR UNSUPPORTED EXPRESSION OF A CONTRARY VIEW IS INSUFFICIENT TO OVERCOME THE PRESUMPTION OF CORRECTNESS WHICH ATTACHES TO THE ADMINISTRATIVE FINDINGS IN THIS MATTER. SEE B-170429, DECEMBER 22, 1970; B-168205, JUNE 30, 1970.

ACCORDINGLY, WE FIND NO BASIS IN LAW OR IN FACT ON WHICH TO OBJECT TO THE PROPOSED AWARD TO OCEAN DATA, AND YOUR PROTEST MUST THEREFORE BE DENIED.