B-173335, MAR 7, 1972

B-173335: Mar 7, 1972

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IT WAS DETERMINED AT A SEPTEMBER 30. MEETING OF SAAMA AND GAO PERSONNEL THAT THE SUBJECT SPECIFICATIONS WERE UNACCEPTABLE IN THAT THEY FAILED TO ACCURATELY STATE THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT. SINCE THE DREDGES WERE URGENTLY REQUIRED. AN AMENDMENT TO THE RFP INCORPORATING THE SPECIFICATION REVISIONS WAS ISSUED ON OCTOBER 7. IT IS THE OPINION OF THE COMP. THAT THIS ACTION WAS IN COMPLIANCE WITH APPLICABLE PROCUREMENT REGULATIONS AND PRACTICES. WITH REGARD TO YOUR CONTENTION THAT AMMCO WILL BE UNABLE TO FURNISH ACCEPTABLE ITEMS. THERE IS NO REASON TO QUESTION THE AWARD TO AMMCO AND THE PROTEST IS DENIED. TO ELLICOTT MACHINE CORPORATION: REFERENCE IS MADE TO A LETTER DATED NOVEMBER 12.

B-173335, MAR 7, 1972

BID PROTEST - BRAND NAME OR EQUAL - AMENDED SPECIFICATIONS - NONRESPONSIBILITY DECISION DENYING PROTEST OF ELLICOTT MACHINE CORPORATION AGAINST AWARD OF A BRAND NAME OR EQUAL CONTRACT TO AMERICAN MARINE AND MACHINERY COMPANY, INC. (AMMCO), UNDER AN RFP ISSUED BY THE SAN ANTONIO AIR MATERIEL COMMAND (SAAMA), KELLY AFB, TEX. IN RESPONSE TO A PREVIOUS PROTEST BY ELLICOTT, IT WAS DETERMINED AT A SEPTEMBER 30, 1971, MEETING OF SAAMA AND GAO PERSONNEL THAT THE SUBJECT SPECIFICATIONS WERE UNACCEPTABLE IN THAT THEY FAILED TO ACCURATELY STATE THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT. B-164520, SEPTEMBER 24, 1968. SINCE THE DREDGES WERE URGENTLY REQUIRED, AN AMENDMENT TO THE RFP INCORPORATING THE SPECIFICATION REVISIONS WAS ISSUED ON OCTOBER 7, 1971. IT IS THE OPINION OF THE COMP. GEN. THAT THIS ACTION WAS IN COMPLIANCE WITH APPLICABLE PROCUREMENT REGULATIONS AND PRACTICES. WITH REGARD TO YOUR CONTENTION THAT AMMCO WILL BE UNABLE TO FURNISH ACCEPTABLE ITEMS, GAO HAS BEEN INFORMALLY ADVISED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT, BIRMINGHAM, ALA., THAT THE FIRST DREDGE DELIVERED HAS THE REQUIRED 50 HORSEPOWER ENGINE. FURTHER, THE DREDGE HAS BEEN TESTED AND FOUND ACCEPTABLE BY THE AIR FORCE. IN VIEW OF THE FOREGOING, THERE IS NO REASON TO QUESTION THE AWARD TO AMMCO AND THE PROTEST IS DENIED.

TO ELLICOTT MACHINE CORPORATION:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 12, 1971, FROM A CONGRESSIONAL SOURCE, PROTESTING ON YOUR BEHALF THE AWARD OF A CONTRACT TO ANOTHER OFFEROR UNDER REQUEST FOR PROPOSALS (RFP) F41608-71-R-DG22, ISSUED BY THE SAN ANTONIO AIR MATERIEL COMMAND (SAAMA), KELLY AIR FORCE BASE, TEXAS.

THE RFP, ISSUED FEBRUARY 18, 1971, REQUESTED PROPOSALS ON A BRAND NAMED PRODUCT OR EQUAL BASIS FOR TWO DREDGES, ELLICOTT MACHINE CORPORATION PART NUMBER V60-1542, AS MODIFIED BY SAAMA PREPARED SPECIFICATIONS.

ON JUNE 18, 1971, YOU PROTESTED TO OUR OFFICE THE PROPOSED AWARD OF THE CONTRACT TO THE LOW OFFEROR, AMERICAN MARINE & MACHINERY CO., INC. (AMMCO). ESSENTIALLY, THE BASIS OF YOUR PROTEST WAS THAT AMMCO WAS NOT OFFERING "OR EQUAL" EQUIPMENT IN SEVERAL DIFFERENT TECHNICAL AREAS INCLUDING CUTTER DRIVE HORSEPOWER AND POWER SWING WINCH HORSEPOWER.

UTILIZING OUR OWN STAFF ENGINEER, WE CONDUCTED AN INDEPENDENT INVESTIGATION TO DETERMINE WHETHER THE AMMCO PROPOSAL WAS ACCEPTABLE AND WHETHER THE SPECIFICATIONS WERE ADEQUATE. ON SEPTEMBER 30, 1971, PERSONNEL OF OUR OFFICE, INCLUDING THE STAFF ENGINEER, MET WITH SAAMA PERSONNEL AND IT WAS DETERMINED THAT THE SAAMA SPECIFICATION FOR THE RFP WAS UNACCEPTABLE IN SEVERAL AREAS AS IT WAS SIMPLY A RESTATEMENT OF YOUR DETAILED SPECIFICATIONS AND DID NOT STATE THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT. THEREFORE IT WAS DECIDED THAT THE SPECIFICATIONS SHOULD BE REVISED AND REISSUED SO AS TO REFLECT ONLY THE BASIC REQUIREMENTS OF SAAMA.

SINCE THE DREDGES WERE URGENTLY REQUIRED BY THE PROCUREMENT ACTIVITY IT WAS DECIDED THAT IT WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT TO CANCEL THE RFP AND REISSUE IT WITH REVISED SPECIFICATIONS BECAUSE OF THE DELAY INHERENT IN SUCH A PROCEDURE. INSTEAD AN AMENDMENT TO THE RFP INCORPORATING THE SPECIFICATION REVISIONS WAS ISSUED OCTOBER 7, 1971.

IN VIEW OF THE CHANGES INCORPORATED BY THE AMENDMENT YOU WITHDREW YOUR PROTEST IN A LETTER TO OUR OFFICE DATED NOVEMBER 3, 1971.

YOU NOW CONTEND SAAMA ACTED IMPROPERLY IN ISSUING THE AMENDMENT REVISING THE SPECIFICATIONS. YOU CLAIM THE AMENDMENT SHOULD NOT HAVE BEEN ISSUED AS THE ORIGINAL SPECIFICATIONS PROVIDED THAT THE SOLICITATION REQUIREMENTS STATED THEREIN WERE THE MINIMUM ACCEPTABLE REQUIREMENTS. IN VIEW OF THIS AND THE FACT THAT THE ORIGINAL WORK REQUIREMENTS FOR WHICH THE DREDGES WERE BEING PROCURED HAVE NOT CHANGED, YOU CLAIM THE AMENDMENT OF THE SPECIFICATION REQUIREMENTS REDUCED THE ACCEPTABLE LEVEL OF THE ITEMS. YOU CONTEND THE SPECIFICATION REQUIREMENTS WERE REDUCED SO THAT THE AMMCO PROPOSAL WOULD BE ACCEPTABLE.

YOU ALSO CONTEND THAT AMMCO CANNOT PROVIDE A 50 HORSEPOWER CUTTER MOTOR AS REQUIRED BY THE AMENDED SPECIFICATIONS. YOU STATE THAT EVEN IF AMMCO COULD PROVIDE A 50 HORSEPOWER CUTTER MOTOR, THE DREDGE WOULD BE UNABLE TO WITHSTAND THE STRESS ASSOCIATED WITH THE INCREASED HORSEPOWER.

IN REGARD TO YOUR CONTENTION THAT AMMCO CANNOT PROVIDE A 50 HORSEPOWER CUTTER MOTOR AS REQUIRED BY THE SPECIFICATION, WE HAVE BEEN INFORMALLY ADVISED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT, BIRMINGHAM, ALABAMA, THAT THE FIRST DREDGE CALLED FOR IN THE CONTRACT HAS BEEN DELIVERED AND HAS A 50 HORSEPOWER ENGINE. WE WERE FURTHER ADVISED THAT THE DREDGE HAS BEEN TESTED AND ACCEPTED BY THE AIR FORCE.

WE TURN NOW TO YOUR CONTENTION THAT THE AMENDMENT REVISING THE SPECIFICATIONS SHOULD NOT HAVE BEEN ISSUED. AS A GENERAL RULE OUR OFFICE HAS TAKEN THE POSITION THAT THE DRAFTING OF PROPER SPECIFICATIONS IS PRIMARILY THE RESPONSIBILITY OF THE PROCUREMENT ACTIVITY. HOWEVER, WE HAVE HELD THAT IT IS THE DUTY OF PROCUREMENT OFFICIALS TO SEE THAT THE SPECIFICATIONS ARE DRAFTED SO AS TO STATE THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT FAIRLY AND ACCURATELY. SPECIFICATIONS WHICH OVERSTATE OR MISSTATE THE NEEDS OF THE PROCUREMENT ACTIVITY ARE NOT IN THE BEST INTERESTS OF THE GOVERNMENT. IN INSTANCES SUCH AS THESE WE HAVE SANCTIONED THE CANCELLATION OF SOLICITATIONS WHICH CONTAIN REQUIREMENTS AND LIMITATIONS WHICH HAVE NO REASONABLE RELATION TO THE ACTUAL NEEDS OF THE GOVERNMENT. SEE B-164520, SEPTEMBER 24, 1968. THEREFORE WE CONCLUDE THAT SAAMA ACTED PROPERLY IN AMENDING THE RFP SPECIFICATIONS SO THEY WOULD MORE ACCURATELY REFLECT THE BASIC, ESSENTIAL REQUIREMENT OF THE GOVERNMENT.

IN REGARD TO YOUR CONTENTION THAT THE SPECIFICATIONS WERE REVISED SO THAT THE AMMCO OFFER WOULD BECOME ACCEPTABLE, WE ARE OF THE OPINION THAT THE SPECIFICATION REVISION WAS NOT UNDERTAKEN SO AS TO ENABLE THE AMMCO PROPOSAL TO BE ACCEPTABLE. INSTEAD THE SPECIFICATIONS WERE REVISED AT THE SUGGESTION OF OUR OFFICE SO THEY WOULD BE IN COMPLIANCE WITH APPLICABLE PROCUREMENT REGULATIONS AND PRACTICES. UNDER THE REVISED SPECIFICATIONS THE PROPOSAL SUBMITTED BY AMMCO WAS THE LOWEST RECEIVED AND AWARD WAS MADE TO IT AS THE LOW RESPONSIVE OFFEROR. THEREFORE, WE HAVE NO REASON TO QUESTION THE AWARD OF THE CONTRACT TO AMMCO.

ACCORDINGLY, THE PROTEST IS DENIED.