B-173488, MAY 5, 1972

B-173488: May 5, 1972

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THE INITIAL PROCUREMENT WAS TO BE ON A SOLE -SOURCE BASIS BUT IT WAS SUBSEQUENTLY DECIDED THAT UNSOLICITED PROPOSALS WOULD BE EVALUATED "AGAINST THE GOVERNMENT'S ESSENTIAL CHARACTERISTICS. THE DRAFTING OF SPECIFICATIONS TO REFLECT THE MINIMUM NEEDS OF GOVERNMENT IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION AND NOT SUBJECT TO QUESTION WHEN SUPPORTED BY SUBSTANTIAL EVIDENCE. 47 COMP. THE SUBJECT PROCUREMENT IS FOR DIAL CENTRAL OFFICE EQUIPMENT FOR USE IN THE UPGRADING OF THE MILITARY INTEGRATED TELEPHONE SYSTEM (AUTOVON) FOR MILITARY INSTALLATIONS ON OKINAWA. WHICH IS THE TYPE INVOLVED IN THIS PROCUREMENT. THE PROCUREMENT IS BEING NEGOTIATED PURSUANT TO THE PUBLIC EXIGENCY EXCEPTION TO THE REQUIREMENT FOR FORMAL ADVERTISING.

B-173488, MAY 5, 1972

BID PROTEST - NONRESPONSIVENESS - ALLEGED IMPROPER SOLICITATION DECISION DENYING THE PROTEST OF STELMA TELECOMMUNICATIONS AGAINST THE PROPOSED AWARD OF A CONTRACT TO WESCOM UNDER A SOLICITATION ISSUED BY THE ARMY ELECTRONICS COMMAND, PHILADELPHIA, PA., FOR A QUANTITY OF TELECOMMUNICATIONS EQUIPMENT. THE INITIAL PROCUREMENT WAS TO BE ON A SOLE -SOURCE BASIS BUT IT WAS SUBSEQUENTLY DECIDED THAT UNSOLICITED PROPOSALS WOULD BE EVALUATED "AGAINST THE GOVERNMENT'S ESSENTIAL CHARACTERISTICS," ALTHOUGH THE PROCURING ACTIVITY DECLINED TO INSERT A "BRAND NAME OR EQUAL" CLAUSE IN THE SOLICITATION. ASPR 1-1206.5(B) SPECIFICALLY PROVIDES THAT THE USE OF A "BRAND NAME OR EQUAL" CLAUSE MAY NOT BE PRACTICABLE IN EXIGENCY PURCHASES. AS A GENERAL RULE, THE DRAFTING OF SPECIFICATIONS TO REFLECT THE MINIMUM NEEDS OF GOVERNMENT IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION AND NOT SUBJECT TO QUESTION WHEN SUPPORTED BY SUBSTANTIAL EVIDENCE. 47 COMP. GEN. 701 (1968). IN VIEW OF THE FOREGOING, THE PROTEST MUST BE DENIED.

TO DATA PRODUCTS, STELMA TELECOMMUNICATIONS:

BY LETTER DATED JANUARY 11, 1972, AND PRIOR CORRESPONDENCE, YOU PROTESTED THE PROPOSED AWARD TO WESCOM OF A CONTRACT FOR TELECOMMUNICATIONS EQUIPMENT UNDER SOLICITATION DAAB05-71-R-0277, ISSUED BY THE UNITED STATES ARMY ELECTRONICS COMMAND, PHILADELPHIA, PENNSYLVANIA. CONTRACT AWARD HAS BEEN WITHHELD PENDING OUR DECISION ON THE PROTEST.

THE SUBJECT PROCUREMENT IS FOR DIAL CENTRAL OFFICE EQUIPMENT FOR USE IN THE UPGRADING OF THE MILITARY INTEGRATED TELEPHONE SYSTEM (AUTOVON) FOR MILITARY INSTALLATIONS ON OKINAWA. THE ORIGINAL TELECOMMUNICATIONS EQUIPMENT ON OKINAWA MADE USE OF WESCOM TERMINATING AND SIGNALING EQUIPMENT, WHICH IS THE TYPE INVOLVED IN THIS PROCUREMENT. THE PROCUREMENT IS BEING NEGOTIATED PURSUANT TO THE PUBLIC EXIGENCY EXCEPTION TO THE REQUIREMENT FOR FORMAL ADVERTISING, 10 U.S.C. 2304(A)(2), AS IMPLEMENTED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-202, IN VIEW OF THE ASSIGNMENT OF AN "05" ISSUE PRIORITY DESIGNATOR. BECAUSE THE EQUIPMENT IS TO BE USED IN CONJUNCTION WITH THAT PREVIOUSLY INSTALLED BY WESCOM AND BECAUSE IT WAS CONSIDERED THAT SUFFICIENT DATA WAS NOT AVAILABLE TO WARRANT A COMPETITIVE PROCUREMENT, IT WAS INITIALLY DETERMINED THAT THE PROCUREMENT SHOULD BE RESTRICTED TO WESCOM AS THE SOLE -SOURCE OF SUPPLY.

IN THIS REGARD, THE RECOMMENDATION TO THE ELECTRONICS COMMAND BY THE U.S. ARMY COMMUNICATIONS SYSTEMS AGENCY THAT THE PROCUREMENT BE ON A SOLE- SOURCE BASIS IS SET OUT BELOW:

"A. THE BASIC DIAL CENTRAL OFFICES WERE PROCURED AS STANDARD COMMERCIAL ITEMS AND IN SUCH CIRCUMSTANCES COMPETITIVE DATA IS NOT PROCURED, WHEN ADD -ONES, UPGRADING AND EXPANSION OF EXISTING TELEPHONE INSTALLATIONS ARE REQUIRED IT BECOMES NECESSARY TO PROCURE THE SPECIFIC EQUIPMENTS FROM THE ORIGINAL MANUFACTURER OF THE EQUIPMENT AT 'THOSE INSTALLATIONS'.

"B. IT IS MORE ECONOMICAL TO INSTALL AN ADDITION TO AN EXISTING DIAL CENTRAL OFFICE UTILIZING EQUIPMENT OF THE SAME MANUFACTURER AS THAT USED IN THE BASIC CENTRAL OFFICE THAN IT IS TO UTILIZE EQUIPMENT FROM ANOTHER MANUFACTURER BECAUSE:

(1) EXISTING VACANT FRAME AND RACK SPACE CAN BE UTILIZED.

(2) INTERFACE PROBLEMS ON COMMON INTER- AND INTRA-OFFICE TRUNK ROUTES ARE ELIMINATED OR REDUCED TO A MINIMUM.

(3) ENGINEERING, INSTALLATION AND MAINTENANCE OF THE ADDITIONAL EQUIPMENT IS SIMPLIFIED AND VERIFICATION OF HUNDREDS OF CIRCUIT OPTIONS AND INTERCONNECTIONS OF EQUIPMENT PROBLEMS ARE ELEMENTARY AND NO VERIFICATION OF COMPATIBILITY IS REQUIRED.

"C. DEPARTMENT OF THE ARMY TECHNICAL MANUALS, BULLETINS, OPERATION AND MAINTENANCE PUBLICATIONS, CIRCUIT DIAGRAMS, AND CENTRAL OFFICE CONFIGURATION DATA ARE AVAILABLE. THERE WILL BE NO NEED FOR MAJOR PUBLICATIONS REVISIONS OF NEW ISSUES.

"D. ONLY ONE SET OF MANUFACTURER'S SPECIAL TEST AND MAINTENANCE TOOL SETS WILL BE REQUIRED (NORMALLY THOSE ON HAND AT THE EXISTING DCO.)

"E. UTILIZATION OF ONE MANUFACTURER'S EQUIPMENT IN A DCO ELIMINATES A REQUIREMENT TO MAINTAIN TWO SETS OF REPAIR PARTS AND TECHNICAL DATA.

"F. IT IS NOT PRACTICAL TO PROCURE PRODUCTION DATA FOR THIS TYPE OF PROPRIETARY EQUIPMENT BECAUSE OF THE HIGH DOLLAR VALUE INVOLVED."

ACCORDINGLY, THE SOLICITATION SPECIFIED WESCOM PART NUMBERS FOR THE VARIOUS PIECES OF EQUIPMENT BEING PROCURED.

UPON SUBMISSION OF PROPOSALS BY STELMA AND TWO OTHER FIRMS, IT WAS DECIDED, HOWEVER, THAT THESE UNSOLICITED PROPOSALS WOULD BE EVALUATED "AGAINST THE GOVERNMENT'S ESSENTIAL CHARACTERISTICS," ALTHOUGH THE CONTRACTING OFFICER DECLINED TO AMEND THE SOLICITATION TO INCLUDE A "BRAND NAME OR EQUAL" CLAUSE AS REQUESTED BY STELMA.

THE STELMA PROPOSAL AND THE OTHER TWO UNSOLICITED PROPOSALS WERE REJECTED AS TECHNICALLY UNACCEPTABLE. YOU MAINTAIN THAT THE ARMY'S EVALUATION OF THE STELMA PROPOSAL WAS A "DETAIL-BY-DETAIL" COMPARISON WITH THE WESCOM EQUIPMENT RATHER THAN ON THE BASIS OF A COMPARISON WITH ONLY THOSE CHARACTERISTICS ESSENTIAL TO FULFILLMENT OF THE GOVERNMENT'S NEEDS, AS REQUIRED BY ASPR. THEREFORE, IT IS CONCLUDED THAT THE STELMA EQUIPMENT, WHILE DIFFERENT THAN THAT OF WESCOM IN CERTAIN NONESSENTIAL DETAILS, IS ADEQUATE FOR THE GOVERNMENT'S NEEDS. IN THIS REGARD, YOU STATE THAT STELMA EQUIPMENT HAS PREVIOUSLY BEEN SUPPLIED TO THE GOVERNMENT FOR THE SAME AUTOVON USE AS IS PROPOSED FOR THE EQUIPMENT BEING PROCURED UNDER THIS SOLICITATION.

THE REASONS FOR THE REJECTION OF THE STELMA PROPOSAL WERE SPELLED OUT IN A LETTER DATED MAY 28, 1971, FROM THE CONTRACTING OFFICER TO STELMA, AND AGAIN IN THE CONTRACTING OFFICER'S STATEMENT INCLUDED WITH THE ARMY REPORT TO OUR OFFICE, A COPY OF WHICH HAS BEEN FURNISHED TO YOU. AS YOU KNOW, 5 AREAS OF DEFICIENCY, ALL OF WHICH WERE DETERMINED BY THE CONTRACTING OFFICER TO RELATE TO ESSENTIAL CHARACTERISTICS, WERE ADVANCED IN DISQUALIFICATION OF THE STELMA PROPOSAL. FURTHER, IT IS REPORTED THAT THE STELMA PROPOSAL, AS AMENDED BY YOUR LETTER DATED JUNE 14, 1971, SUBMITTED IN REBUTTAL OF THE DISQUALIFICATION LETTER, WAS REEVALUATED BY ELECTRONICS COMMAND ENGINEERING PERSONNEL BUT IT WAS STILL UNACCEPTABLE.

ALTHOUGH THERE IS SOME DISAGREEMENT BETWEEN STELMA AND THE ARMY AS TO THE EXTENT TO WHICH THE ARMY, IN A SUPPLEMENTAL ADMINISTRATIVE REPORT FURNISHED STELMA FOR COMMENT, ULTIMATELY AGREED WITH THE STELMA APPROACH TO 3 OF THE ORIGINAL 5 AREAS OF UNACCEPTABILITY, IT IS CONCEDED BY STELMA THAT THE AREAS OF ITS PROPOSAL REFERRED TO AS "4 WIRE TERMINATION SET (DEPTH)" AND "DUAL LINE AMPLIFIER - SURGE PROTECTION" ARE STILL CONSIDERED BY THE ARMY TO RENDER THE STELMA PROPOSAL UNACCEPTABLE. BRIEFLY, STELMA'S FAILURE TO MEET THE DIMENSIONAL REQUIREMENTS FOR THE 4-WIRE TERMINATION SETS OR TO PROVIDE FOR LINE AMPLIFIER SURGE PROTECTION WAS CONSIDERED TO BE A MATERIAL DEVIATION FROM THE ARMY'S NEEDS BECAUSE SPACE LIMITATION ON THE RACKS IN WHICH THE TERMINATION SETS ARE TO BE INSTALLED REQUIRES A MAXIMUM DEPTH FOR THE SETS LESS THAN THAT PROPOSED BY STELMA AND BECAUSE SURGE PROTECTION ORDINARILY PROVIDED ELSEWHERE IN THE SYSTEM IS NOT CONSIDERED ADEQUATE TO PROPERLY PROTECT THE LINE AMPLIFIERS FROM BURNING OUT IN THE EVENT OF SUDDEN POWER SURGES. IN ANSWER TO YOUR CONTENTION THAT STELMA HAS PREVIOUSLY FURNISHED AUTOVON EQUIPMENT TO THE GOVERNMENT FOR THE SAME USE AS THE SUBJECT EQUIPMENT, THE ADMINISTRATIVE REPORT STATES THAT THE PREVIOUSLY SUPPLIED STELMA EQUIPMENT IS IN USE IN AUTOVON INSTALLATIONS WITHIN THE CONTINENTAL UNITED STATES AND THAT THE REQUIREMENTS FOR SUCH USE ARE NOT AS STRINGENT AS ARE THE REQUIREMENTS FOR EQUIPMENT TO BE USED OUTSIDE OF THE CONTINENTAL UNITED STATES.

THE DRAFTING OF SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT AND THE DETERMINATION WHETHER ITEMS OFFERED MEET THE SPECIFICATIONS ARE PRIMARILY MATTERS OF ADMINISTRATIVE DISCRETION NOT SUBJECT TO QUESTION BY OUR OFFICE WHEN SUPPORTED, AS HERE, BY SUBSTANTIAL EVIDENCE. SEE 47 COMP. GEN. 701 (1968); 38 ID. 190 (1958). THIS PRINCIPLE IS FOR APPLICATION EVEN IN THE SITUATION WHERE IT IS DETERMINED THAT THE GOVERNMENT'S NEEDS CAN BE SATISFIED ONLY BY MEANS OF PROCUREMENT FROM A SINGLE SOURCE.

IN AN EFFORT TO TEST THE VALIDITY OF THE REASONS ADVANCED IN JUSTIFICATION OF THE DETERMINATION THAT THE STELMA PROPOSAL IS UNACCEPTABLE, THE MATTER WAS REFERRED TO AN ELECTRICAL ENGINEER ON OUR STAFF WHO REVIEWED AND COMMENTED ON THE TECHNICAL EVALUATION OF THE STELMA PROPOSAL. THE ENGINEER CONCLUDED THAT THE INFORMATION OF RECORD INDICATED THAT THE STELMA PROPOSAL WAS NOT ACCEPTABLE FROM AN ENGINEERING STANDPOINT. THE ENGINEER FURTHER STATED THAT, IN HIS OPINION, THE USE OF STELMA EQUIPMENT IN THIS INSTANCE WOULD INCREASE THE POTENTIAL FOR (1) INCREASED INSTALLATION COSTS; (2) INTERFACE PROBLEMS WITH EXISTING EQUIPMENT; (3) INCREASED MAINTENANCE COSTS; AND (4) THE LOSS OF FLEXIBILITY AND CAPABILITY OF THE EQUIPMENT IN TIME OF EMERGENCY. THEREFORE CONCLUDE THAT THE ADMINISTRATIVE DETERMINATION TO REJECT THE STELMA PROPOSAL IS NOT SUBJECT TO QUESTION.

FURTHER, THERE IS NO REQUIREMENT THAT THE SPECIFICATIONS FOR A PROCUREMENT SUCH AS IS INVOLVED HERE BE RELAXED SO AS TO PERMIT SUBMISSION OF PROPOSALS ON A "BRAND NAME OR EQUAL" BASIS UPON SUBMISSION OF UNSOLICITED PROPOSALS FROM OTHER SOURCES. IN THIS REGARD, ASPR 1- 1206.5(B) SPECIFICALLY PROVIDES WITH RESPECT TO NEGOTIATED PROCUREMENT THAT THE USE OF THE "BRAND NAME OR EQUAL" CLAUSE MAY NOT BE PRACTICABLE IN SITUATIONS SUCH AS EXIGENCY PURCHASES, AND THAT IN THOSE SITUATIONS "SUPPLIERS SHALL BE SUITABLY INFORMED THAT PROPOSALS OFFERING PRODUCTS DIFFERENT FROM THE PRODUCTS REFERENCED BY BRAND NAME WILL BE CONSIDERED IF THE CONTRACTING OFFICER DETERMINES THAT SUCH OFFERED PRODUCTS ARE EQUAL IN ALL SIGNIFICANT AND MATERIAL RESPECTS TO THE PRODUCTS REFERENCED." SEE, ALSO, B-164235, SEPTEMBER 24, 1968.

IN ACCORDANCE WITH THE ABOVE CONSIDERATION, THE PROTEST IS DENIED.