B-173522(2), JAN 25, 1972

B-173522(2): Jan 25, 1972

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ALTHOUGH THE PROTEST WAS DENIED. THE RECORD INDICATES THAT MRC'S SECOND PROPOSAL WAS NOT SO MATERIALLY DEFICIENT THAT IT COULD NOT HAVE BEEN MADE ACCEPTABLE THROUGH MINOR REVISIONS. RECOMMENDS THAT STEPS BE TAKEN TO INSURE THAT THE PROVISIONS OF THE ASPR ARE FULLY COMPLIED WITH IN FUTURE PROCUREMENTS. TO MATERIALS RESEARCH CORPORATION: REFERENCE IS MADE TO YOUR LETTER DATED JULY 1. A COPY OF WHICH WAS FURNISHED THIS OFFICE. THE RFP WAS ISSUED BY THE BASE PROCUREMENT DIVISION. THAT "A SINGLE AWARD FOR THE ITEMS) SET FORTH UNDER THE SCHEDULE WILL BE MADE TO THE LOWEST RESPONSIBLE OFFEROR. WHOSE OFFER IS RESPONSIVE TO THE TERMS OF THIS SOLICITATION.". FIVE PROPOSALS WERE RECEIVED BY THE BASE PROCUREMENT DIVISION IN RESPONSE TO THE RFP.

B-173522(2), JAN 25, 1972

BID PROCEDURES - COMPLIANCE WITH REGULATIONS CONCERNING THE PROTEST OF MATERIALS RESEARCH CORPORATION (MRC) UNDER AN RFP ISSUED BY THE BASE PROCUREMENT DIVISION, GRIFFIS AFB, N.Y. ALTHOUGH THE PROTEST WAS DENIED, CERTAIN ASPECTS OF THE PROCUREMENT WARRANT FURTHER COMMENT. THE REQUIREMENT TO CONDUCT DISCUSSIONS WITH ALL OFFERORS UNDER ASPR 3 805.1, CANNOT BE DISPENSED WITH MERELY BECAUSE THE RFP ADEQUATELY DESCRIBES THE GOVERNMENT'S REQUIREMENTS. THE RECORD INDICATES THAT MRC'S SECOND PROPOSAL WAS NOT SO MATERIALLY DEFICIENT THAT IT COULD NOT HAVE BEEN MADE ACCEPTABLE THROUGH MINOR REVISIONS. THE COMP. GEN. RECOMMENDS THAT STEPS BE TAKEN TO INSURE THAT THE PROVISIONS OF THE ASPR ARE FULLY COMPLIED WITH IN FUTURE PROCUREMENTS.

TO MATERIALS RESEARCH CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 1, 1971, TO THE 416TH COMBAT SUPPORT GROUP, GRIFFISS AIR FORCE BASE, NEW YORK, A COPY OF WHICH WAS FURNISHED THIS OFFICE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO VARIAN ASSOCIATES UNDER REQUEST FOR PROPOSALS (RFP) F30635 71-R-0397.

THE RFP WAS ISSUED BY THE BASE PROCUREMENT DIVISION, 416TH COMBAT SUPPORT GROUP, ON MAY 7, 1971, BASED ON A REQUIREMENT OF THE ROME AIR DEVELOPMENT CENTER (RADC), ALSO LOCATED AT GRIFFISS AIR FORCE BASE, NEW YORK. THE RFP CONTEMPLATED THE PURCHASE OF ONE DIODE SPUTTERING UNIT, VARIAN MODEL B OR EQUAL, IN ACCORDANCE WITH SPECIFICATIONS AS SHOWN IN THE RFP. THE SPECIFICATIONS SET FORTH THE SALIENT FEATURES REQUIRED BY THE USING ACTIVITY, IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1206.2(B). THE RFP MENTIONED NO SPECIFIC EVALUATION CRITERIA OTHER THAN THE SPECIFICATIONS FOR A BRAND NAME OR EQUAL DIODE SPUTTERING UNIT, AND THE STATEMENT CONTAINED IN PART I, SECTION D, THAT "A SINGLE AWARD FOR THE ITEMS) SET FORTH UNDER THE SCHEDULE WILL BE MADE TO THE LOWEST RESPONSIBLE OFFEROR, WHOSE OFFER IS RESPONSIVE TO THE TERMS OF THIS SOLICITATION."

FIVE PROPOSALS WERE RECEIVED BY THE BASE PROCUREMENT DIVISION IN RESPONSE TO THE RFP. THEY COMPARED AS FOLLOWS:

PERKIN-ELMER $ 14,570

BENDIX SCIENTIFIC INST. 16,810

VEECO INSTRUMENTS 27,875

VARIAN ASSOCIATES 18,222

MATERIALS RESEARCH CORP.

OPTION I 14,475

OPTION II 19,875

THE PROPOSALS WERE SENT TO THE USING ACTIVITY FOR EVALUATION AS TO THEIR COMPLIANCE WITH THE SPECIFICATIONS. THE EVALUATION REPORT DATED MAY 27, 1971, REJECTED THE FIRST TWO PROPOSALS AS TECHNICALLY UNACCEPTABLE AND THE THIRD PROPOSAL WAS NOT TECHNICALLY EVALUATED BECAUSE OF THE EXTREMELY HIGH PRICE OFFERED. THE PROPOSAL BY VARIAN ASSOCIATES WAS RATED AS ACCEPTABLE. THE PROPOSAL BY YOUR COMPANY, WHICH INCLUDED OPTIONS I AND II, WAS RATED AS "SUBSTANTIALLY CONFORMING" TO THE RFP SPECIFICATIONS. SINCE THE PRICE FOR OPTION II WAS HIGHER THAN FOR VARIAN ASSOCIATES' ACCEPTABLE PROPOSAL, CONSIDERATION WILL BE GIVEN TO ONLY OPTION I OF YOUR PROPOSAL.

OPTION I, WHICH WAS LOWER IN COST THAN THE VARIAN ASSOCIATES' PROPOSAL, WAS FOUND "LESS CERTAIN TO BE ADEQUATE FOR THE INTENDED APPLICATION," AND THE FOLLOWING TWO EXCEPTIONS WERE CONSIDERED TO BE SIGNIFICANT BUT NOT DISQUALIFYING: "A. IN SPUTTER-ETCH OPERATION, 500 W POWER IS AVAILABLE INSTEAD OF 1 KW. B. ONLY TWO TARGETS AVAILABLE INSTEAD OF THREE." ALL OF THE OTHER EXCEPTIONS WERE CONSIDERED TO BE WITHIN THE "OR EQUAL" CRITERION BY THE TECHNICAL EVALUATOR. BECAUSE OF THIS EVALUATION, THE PROCUREMENT AGENT CONTACTED YOU BY TELEPHONE ON JUNE 3, 1971, AND OUTLINED THESE EXCEPTIONS. YOUR VICE PRESIDENT, MARKETING, CONTENDED THAT YOUR SYSTEM HAD THE CAPABILITY OF PRODUCING 1000 WATTS, THAT THERE ARE TWO TARGETS ON THE UNIT WITH A POSITION FOR A THIRD, AND THEREFORE YOUR OFFER DID, IN FACT, CONFORM TO THE SPECIFICATIONS.

ON JUNE 7, 1971, THE CONTRACTING OFFICER ASKED FOR AN ADDITIONAL TECHNICAL EVALUATION WHICH WAS COMPLETED ON JUNE 11, 1971. THE SECOND TECHNICAL EVALUATION WAS PERFORMED BY DIFFERENT EVALUATION PERSONNEL, AND RESULTED IN THE FOLLOWING DETERMINATIONS:

"1. MRC'S PROPOSAL HAS BEEN GIVEN A SECOND REVIEW AND THE FOLLOWING COMMENTS ARE MADE.

"2. MRC'S VERBAL COMMENTS NOTWITHSTANDING, THEIR PROPOSAL DOES NOT STATE THAT THERE IS A PROVISION FOR A THIRD TARGET ELECTRODE AND THEIR PROPOSAL (PARA II C 5) SPECIFICALLY STATES THAT THE 'SYSTEM WILL ALLOW 500 WATTS OF RF POWER AVAILABLE TO BE APPLIED AT SUBSTRATE TABLE.'

"3. PARA II A 4 OF THE MRC PROPOSAL SPECIFIES A 5" SUBSTRATE TABLE. OUR SPECIFICATION CALLS FOR A 14 5/8" TABLE CAPABLE OF ACCURATELY POSITIONING THREE SIX INCH DIAMETER SUBSTRATES. THE MRC PROPOSAL IS UNACCEPTABLE IN THIS REGARD.

"4. PARA II A 5 OF THE MRC PROPOSAL SPECIFIES A SHUTTER ARRANGEMENT THAT IS DIFFERENT FROM THAT REQUESTED BUT WHICH IS ALLEGED TO BE EQUIVALENT. INSUFFICIENT DETAIL IS AVAILABLE IN THE PROPOSAL TO VERIFY THIS.

"5. OUR SPECIFICATION CALLS FOR A 2.5 KW RF POWER SUPPLY; MRC OFFERS A 2.0 KW SUPPLY AND STATES THAT THIS IS SUFFICIENT. SINCE THIS IS TO BE USED FOR RESEARCH PROJECTS, WE CANNOT ACCURATELY FORECAST OUR REQUIREMENTS FOR POWER AND PREFER TO HAVE THE HIGHER LEVEL AT OUR DISPOSAL.

"6. FOR THE REASONS ABOVE, WE JUDGE THE MRC PROPOSAL, PRICED AT 14K, TO BE UNACCEPTABLE."

ON JUNE 17, 1971, YOU MADE AN ORAL REQUEST TO THE BASE PROCUREMENT DIVISION TO WITHHOLD AWARD TO ANY CONTRACTOR OTHER THAN YOURSELF. ON JUNE 21, 1971, PURSUANT TO ASPR 2-407.8(B), THE CONTRACTING OFFICER REQUESTED A WRITTEN CONFIRMATION OF YOUR REQUEST BY 3:00 P.M., JUNE 25, 1971. ON JUNE 18, 1971, YOU FORWARDED A LETTER TO THE PROCUREMENT OFFICE SETTING FORTH THE ADVANTAGES OF YOUR MODEL 8620 SPUTTERING MODULE WHICH WAS ESSENTIALLY THE EQUIPMENT BEING OFFERED UNDER OPTION I. THIS LETTER DID NOT SPECIFICALLY ANSWER RADC'S TECHNICAL OBJECTIONS OF YOUR SYSTEM AND THE TECHNICAL EVALUATOR REAFFIRMED HIS POSITION THAT YOUR PROPOSAL WAS TECHNICALLY UNACCEPTABLE. NO WRITTEN REQUEST TO WITHHOLD THE AWARD WAS RECEIVED BY THE TIME INDICATED IN THE BASE PROCUREMENT DIVISION'S LETTER DATED JUNE 21, 1971.

ON JUNE 30, 1971, THE PROCUREMENT ACTIVITY FORWARDED TO YOU A LETTER STATING THAT AWARD OF THE SUBJECT CONTRACT HAD BEEN MADE TO VARIAN ASSOCIATES AND DETAILING THE REASONS YOUR OFFER WAS NOT ACCEPTABLE. THE LETTER STATED THAT YOUR OFFER "DID NOT MEET ALL THE SPECIFICATIONS IN THE RFP; IN PARTICULAR, SIX INCH DIAMETER SUBSTRATES AND THE SHUTTER ARRANGEMENT."

YOU CONTEND THAT OPTION I WAS FOR A SYSTEM THAT DIFFERED SLIGHTLY IN HARDWARE CONFIGURATION FROM THE SPECIFICATIONS BUT MET THE TECHNICAL INTENT OF THE SPECIFICATIONS. THE GIST OF YOUR PROTEST IS THAT THE PROCUREMENT AGENCY'S DETERMINATION THAT YOUR PROPOSAL WAS NOT RESPONSIVE TO THE SPECIFICATIONS SET FORTH IN THE RFP WAS IMPROPER, AND THAT THE MANNER IN WHICH THE PROCUREMENT WAS CONDUCTED WAS IN DIRECT CONTRADICTION TO ALL ASPR REQUIREMENTS. YOU FEEL THAT PROCUREMENT AND ENGINEERING PERSONNEL WENT TO GREAT LENGTHS TO FIND SOME REASON TO DISQUALIFY YOUR PROPOSAL AS NONRESPONSIVE WHICH, YOU CONTEND, IS DEMONSTRATED BY THE WRITING OF TWO SEPARATE ENGINEERING EVALUATIONS.

IN SOLICITATIONS USING BRAND NAME OR EQUAL SPECIFICATIONS, THE OFFERED ARTICLE NEED NOT BE IDENTICAL TO THE BRAND NAME PRODUCT. THE EQUALITY REQUIREMENT IS MET WHEN THE OFFERED ITEM IS FOUND EQUALLY CAPABLE OF MEETING THE GOVERNMENT'S SPECIFIED NEEDS AND CONFORMS TO THE STATED SALIENT CHARACTERISTICS. B-169210, APRIL 22, 1970; B-166031, MAY 8, 1969. NOTWITHSTANDING THE FACT THAT THE BRAND NAME IDENTIFICATION IS INTENDED TO BE MERELY DESCRIPTIVE, SPECIFICATIONS SPELLING OUT ESSENTIAL CHARACTERISTICS OF THE BRAND NAME ITEM MUST BE STRICTLY MET. B-164494, AUGUST 28, 1968. MOREOVER, IT IS A WELL ESTABLISHED PRINCIPLE THAT DRAFTING OF SPECIFICATIONS FOR GOVERNMENT NEEDS AND DETERMINING CONFORMABILITY OF OFFERED ITEMS THERETO, ESPECIALLY WHERE TECHNICAL CONSIDERATIONS ARE INVOLVED, ARE MATTERS PRIMARILY FOR ADMINISTRATIVE DETERMINATION AND WILL NOT BE DISTURBED BY THIS OFFICE UNLESS FOUND CAPRICIOUS, MADE IN BAD FAITH OR WITHOUT SUBSTANTIAL GROUNDS. B-169210, APRIL 22, 1970; B-166031, MAY 8, 1969.

THE SPECIFICATIONS CLEARLY REQUIRED, AMONG OTHER CHARACTERISTICS, THAT EACH ASSEMBLY HAVE A PROVISION TO ADD AN ADDITIONAL 6" WATER COOLED TARGET; THAT THE SUBSTRATE TABLE BE AT LEAST 14 5/8" IN DIAMETER AND CAPABLE OF ACCURATELY POSITIONING THREE SIX INCH DIAMETER SUBSTRATE PLATENS; THAT THE UNIT HAVE VARIABLE POWER OUTPUT OF UP TO 2.5 KW; THAT AT LEAST 1 KW OF RF POWER BE AVAILABLE TO BE APPLIED TO THE SUBSTRATE TABLE; AND THAT A SHUTTER ARRANGEMENT BE PROVIDED PER THE STATED DESCRIPTION INCLUDED IN THE SPECIFICATIONS. THE TECHNICAL EVALUATION, WHICH WAS COMPLETED ON JUNE 11, 1971, ADDRESSED THE ACCEPTABILITY OF YOUR PROPOSAL AND DETERMINED THAT IT DID NOT CONFORM TO ANY OF THESE CHARACTERISTICS. WE BELIEVE THE RECORD SUPPORTS A FINDING THAT THERE WERE SUBSTANTIAL GROUNDS FOR THE PROCUREMENT AGENCY'S DETERMINATION THAT YOUR OPTION I PROPOSAL DID NOT CONFORM TO THE SPECIFICATIONS. THIS OFFICE WILL NOT, THEREFORE, INTERFERE WITH THE ADMINISTRATIVE DETERMINATION, WHICH WAS MADE PURSUANT TO THE SECOND EVALUATION, THAT YOUR PROPOSAL WAS TECHNICALLY UNACCEPTABLE.

IN REGARD TO THE TWO TECHNICAL EVALUATIONS, THE TECHNICAL PERSONNEL AT RADC WERE INITIALLY INSTRUCTED BY THE CONTRACTING OFFICER TO DETERMINE WHETHER THE FIVE PROPOSALS MET THE SPECIFICATIONS OF THE SYSTEM DESCRIBED IN THE RFP. THE TECHNICAL EVALUATION REPORT DATED MAY 27, 1971, STATED THAT YOUR OPTION I PROPOSAL HAD CERTAIN SIGNIFICANT EXCEPTIONS TO THE SPECIFICATIONS, BUT THAT THEY WERE NOT DISQUALIFYING. PURSUANT TO THE REQUIREMENT, SET FORTH IN ASPR 3-804, THAT THE PROCUREMENT AGENCY SHOULD CONDUCT DISCUSSIONS WITH OFFERORS TO THE EXTENT NECESSARY TO RESOLVE UNCERTAINTIES RELATING TO THE PURCHASE, THE TWO EXCEPTIONS NOTED IN THE TECHNICAL EVALUATION REPORT WERE DISCUSSED WITH YOU. SINCE YOU DID NOT OFFER TO REVISE YOUR PROPOSAL, BUT INSISTED THAT YOUR PROPOSAL OFFERED THE REQUIRED CHARACTERISTICS OF THE BRAND NAME PRODUCT, A NEW TECHNICAL EVALUATION WAS REQUESTED.

ACCORDINGLY, WE CANNOT AGREE WITH YOUR ALLEGATION THAT THE ADDITIONAL EVALUATION WAS REQUESTED FOR THE PURPOSE OF FINDING SOME REASON TO DISQUALIFY YOUR PROPOSAL AS NONRESPONSIVE. TO THE CONTRARY, WE BELIEVE THE REQUEST FOR A SECOND EVALUATION DEMONSTRATES A GOOD FAITH EFFORT BY THE PROCUREMENT AGENCY TO FULLY EXPLORE YOUR CONTENTION THAT YOUR PROPOSAL FOR OPTION I CONTAINED THE ESSENTIAL CHARACTERISTICS OF THE BRAND NAME PRODUCT.

IN FURTHER SUPPORT OF YOUR CONTENTION THAT THIS PROCUREMENT WAS CONDUCTED IMPROPERLY, YOU ALLEGE THAT THE PROCUREMENT PERSONNEL INDICATED THEY WOULD RATHER YOU DID NOT FORMALLY ENTER A PROTEST, BUT THAT YOU SHOULD SUBMIT A LETTER WHICH DETAILED YOUR PROPOSAL, CITED YOUR INTENT TO MEET THE SPECIFICATIONS AND SHOWED YOUR CAPABILITY AND EXPERIENCE. IN RETURN FOR NOT PROTESTING, YOU SAY THAT THE PROCUREMENT PERSONNEL WERE QUITE SPECIFIC IN STATING THAT THEY WOULD NOT MAKE AN AWARD UNTIL THEY REVIEWED THE RFP AND TOLD YOU THE OUTCOME OF THEIR FINDINGS. THE RECORD CONTAINS A MEMORANDUM BY THE PROCUREMENT OFFICIAL INVOLVED WHICH REFUTES YOUR ALLEGATION AS FOLLOWS:

"AT NO TIME WAS MRC DETERRED FROM ENTERING A PROTEST, EITHER DURING THE RFP STAGE NOR AFTER AWARD. SINCE NO AWARD HAD BEEN MADE AT TIME OF REFERENCED CONVERSATION, HOW COULD MRC PROTEST AWARD WHEN FOR ALL THEY KNEW, THEY MIGHT HAVE BEEN GETTING THE AWARD? THIS WAS PRESENTED TO THEM AND THEY INSTEAD REQUESTED WE HOLD UP ANY AWARD TO OTHER THAN MRC UNTIL THEY COULD PRESENT MORE INFORMATION. NO 'DEAL' AS SUGGESTED WAS MADE AND LETTER RECEIVED FROM MRC DATED 18 JUN 71 MADE NO MENTION OF WITHHOLDING AWARD."

WHEN THERE IS A CONFLICT BETWEEN A FACTUAL STATEMENT BY A PROTESTER AND THE REPORT OF THE ADMINISTRATIVE OFFICE, IT IS A LONG-ESTABLISHED RULE OF THIS OFFICE TO BASE OUR DETERMINATION ON THE FACTS AS REPORTED BY THE AGENCY, IN THE ABSENCE OF EVIDENCE WHICH CONVINCINGLY ESTABLISHES THAT THE ADMINISTRATIVE RECORD IS IN ERROR. B-166086, AUGUST 13, 1969. WE DO NOT CONSIDER THE EVIDENCE YOU HAVE SUBMITTED SUFFICIENT TO ESTABLISH SUCH ERROR IN THE INSTANT CASE.

IN VIEW OF THE FOREGOING, WE DO NOT FIND THAT YOUR PROTEST HAS ESTABLISHED ADEQUATE GROUNDS ON WHICH VARIAN'S CONTRACT COULD BE HELD CLEARLY ILLEGAL AND WARRANT ITS CANCELLATION.

ACCORDINGLY, YOUR PROTEST IS DENIED.