B-174149(1), JAN 19, 1972

B-174149(1): Jan 19, 1972

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THE FACT THAT THEY ARE NOT RECOMMENDED FOR BUOY USE. WOULD RECOMMEND THAT THE TECHNICAL REQUIREMENTS FOR THE PROCUREMENT OF MICROSPHERES BE REVIEWED BEFORE ANY MORE OF THESE ITEMS ARE PURCHASED. EMERSON CANNOT BE HELD RESPONSIBLE FOR ANY DEFICIENCIES IN THIS RESPECT SINCE THESE FACTORS WERE NOT INCLUDED AS CRITERIA FOR EVALUATION UNDER THE SOLICITATION. PROTESTANT'S FURTHER ALLEGATION IS WITHOUT MERIT SINCE IT FAILED TO ADVISE THE DEPARTMENT PRIOR TO THE CLOSING DATE FOR THE RECEIPT OF PROPOSALS THAT THE MICROSPHERE SHOULD HAVE BEEN EVALUATED BY VOLUME RATHER THAN WEIGHT. THERE IS NO LEGAL BASIS FOR DISTURBING THE AWARD. THE PROCUREMENT WAS FOR A REQUIREMENT OF MICROSPHERES. WHICH WAS SET FORTH AS ITEM NO. 0001 OF THE SUBJECT RFP AS FOLLOWS: QUANTITY UNIT "0001 MICROSPHERES.

B-174149(1), JAN 19, 1972

BID PROTEST - METHOD OF EVALUATION DECISION DENYING PROTEST OF THE MINNESOTA MINING AND MANUFACTURING COMPANY AGAINST THE AWARD OF A CONTRACT TO EMERSON AND CUMING, INC., UNDER AN RFP ISSUED BY THE NAVAL SUPPLY CENTER, BREMERTON, WASH., FOR A REQUIREMENT OF MICROSPHERES. PROTESTANT QUESTIONS THE RESPONSIVENESS OF THE EMERSON ITEMS IN REGARD TO THEIR SPECIFIED DENSITY, MATERIAL CONSTRUCTION, AND THE FACT THAT THEY ARE NOT RECOMMENDED FOR BUOY USE. WHILE THE COMP. GEN. WOULD RECOMMEND THAT THE TECHNICAL REQUIREMENTS FOR THE PROCUREMENT OF MICROSPHERES BE REVIEWED BEFORE ANY MORE OF THESE ITEMS ARE PURCHASED, EMERSON CANNOT BE HELD RESPONSIBLE FOR ANY DEFICIENCIES IN THIS RESPECT SINCE THESE FACTORS WERE NOT INCLUDED AS CRITERIA FOR EVALUATION UNDER THE SOLICITATION. PROTESTANT'S FURTHER ALLEGATION IS WITHOUT MERIT SINCE IT FAILED TO ADVISE THE DEPARTMENT PRIOR TO THE CLOSING DATE FOR THE RECEIPT OF PROPOSALS THAT THE MICROSPHERE SHOULD HAVE BEEN EVALUATED BY VOLUME RATHER THAN WEIGHT. IN VIEW OF THESE FACTS, THERE IS NO LEGAL BASIS FOR DISTURBING THE AWARD.

TO MINNESOTA MINING & MANUFACTURING CO.:

WE REFER TO YOUR LETTER OF SEPTEMBER 14, 1971, PROTESTING THE AWARD OF A CONTRACT TO EMERSON AND CUMING, INC. (EMERSON) UNDER REQUEST FOR PROPOSALS (RFP) N00406-71-R-0328, ISSUED BY THE U.S. NAVAL SUPPLY CENTER, BREMERTON, WASHINGTON, ON JUNE 21, 1971. THE PROCUREMENT WAS FOR A REQUIREMENT OF MICROSPHERES, WHICH WAS SET FORTH AS ITEM NO. 0001 OF THE SUBJECT RFP AS FOLLOWS:

QUANTITY UNIT

"0001 MICROSPHERES, HOLLOW, GLASS 3,900 LBS.

OR PHENOLIC, IN POLYETHYLENE

LINED DRUMS. UNION CARBIDE

BJO-0930 OR 3-M CO., B30B

OR EQUAL. - 1144-0143

1,950 LBS - 1148-0145"

THE RFP FURTHER ADVISED OFFERORS THAT DESCRIPTIVE LITERATURE SHOULD BE FURNISHED WITH PROPOSALS OFFERING "EQUAL" MODELS WHICH CLEARLY VERIFIED THAT SUCH PRODUCTS MET EVERY ESSENTIAL CHARACTERISTIC OF THE BRAND NAME ITEMS.

ON JULY 1, 1971, AMENDMENT NO. 0001 TO THE SUBJECT RFP WAS ISSUED TO ALL PROSPECTIVE OFFERORS, STATING THAT THE REQUIRED QUANTITY OF THE MICROSPHERES WAS INCREASED TO 5,850 LBS. ON JULY 16, 1971, OFFERS WERE RECEIVED FROM YOUR CONCERN AND EMERSON. IN THIS REGARD YOU SUBMITTED AN OFFER OF 75 CENTS PER POUND FOR YOUR "3M" BRAND AND EMERSON SUBMITTED AN OFFER OF 73 CENTS PER POUND FOR THE CONCERN'S "GLASS MICROBALLOONS NO. IG- 101." THEREAFTER, EMERSON'S OFFER WAS FORWARDED FOR EVALUATION BY TECHNICAL PERSONNEL WHO SUBSEQUENTLY DETERMINED THAT EMERSON'S "EQUAL" PRODUCT MET ALL THE REQUIREMENTS SET FORTH IN THE SUBJECT RFP. ACCORDINGLY, THE PROCURING ACTIVITY AWARDED CONTRACT NO. N00406-72-C-0095 TO EMERSON ON JULY 30, 1971. THE CONTRACT WAS COMPLETED IN SEPTEMBER OF THIS YEAR.

ON SEPTEMBER 14, 1971, YOU PROTESTED THE SUBJECT AWARD TO THIS OFFICE FOR THE FOLLOWING REASONS: (1) THAT THE DENSITY OF THE EMERSON ITEMS EXCEEDS THE "SPECIFIED DENSITY" OF THE BRAND NAME ITEMS; (2) THAT EMERSON'S PRODUCT DOES NOT CONFORM TO PARAGRAPH 3.4 OF MILITARY SPECIFICATION MIL-S- 24167; (3) THAT EMERSON'S MICROSPHERES ARE NOT RECOMMENDED FOR BUOY USE; (4) AND THAT THE LOW OFFEROR FOR THE MICROSPHERES SHOULD HAVE BEEN DETERMINED ON THE BASIS OF VOLUME AND NOT WEIGHT. ACCORDINGLY, YOU REQUEST THAT EMERSON'S CONTRACT BE CANCELLED AND THE PROCUREMENT BE RE- SOLICITED.

THE DEPARTMENT STATES THAT THE ONLY SALIENT CHARACTERISTICS OF THE REFERENCE BRAND NAME MICROSPHERES SET FORTH IN THE RFP WERE THAT THE ITEMS BE "HOLLOW, GLASS OR PHENOLIC, IN POLYETHYLENE-LINED DRUMS"; THAT THE DENSITY OF THE ITEMS WAS NOT STATED AS A SALIENT CHARACTERISTIC SINCE THE PROCURING ACTIVITY HAD NOT PREVIOUSLY PROCURED THE ITEMS IN QUESTION AND, THEREFORE, THERE WAS NO PRIOR EXPERIENCE TO INDICATE THAT DENSITY SHOULD BE AN EVALUATION FACTOR; THAT THE DEPARTMENT EXAMINED THE DESCRIPTIVE LITERATURE WHICH EMERSON SUBMITTED WITH ITS OFFER CONCERNING ITS "EQUAL" MODEL, NO. IG 101; AND THAT IT DETERMINED THE EMERSON MODEL MET THE STIPULATED ESSENTIAL CHARACTERISTICS OF THE BRAND NAME PRODUCTS.

IN THIS CONNECTION, IT IS THE WELL-ESTABLISHED POSITION OF THIS OFFICE THAT ALL SALIENT CHARACTERISTICS OF THE BRAND NAME ARTICLE MUST BE SET OUT IN THE SOLICITATION, SO THAT BIDDERS OFFERING "EQUAL" PRODUCTS UNDER "BRAND NAME OR EQUAL" PROCUREMENTS NEED NOT GUESS AT THE ESSENTIAL QUALITIES OF THE ITEMS TO BE SUPPLIED. SEE 49 COMP. GEN. 274, 276 (1969). IN VIEW THEREOF, AND INASMUCH AS THE NAVY MAINTAINS THAT IT DID NOT CONSIDER A SPECIFIC DENSITY OF THE ITEMS TO BE ESSENTIAL TO ITS NEEDS AT THE TIME OF CONTRACT AWARD, AND THEREFORE DID NOT SPECIFY DENSITY IN THE SOLICITATION, WE PERCEIVE NO BASIS FOR QUESTIONING THE AWARD TO EMERSON FOR THE REASON THAT THE DENSITY OF ITS MODEL WAS NOT EQUAL TO THAT OF YOUR "3M" PRODUCT.

WITH RESPECT TO YOUR ALLEGATION THAT EMERSON DOES NOT MAKE A FOAM MATERIAL WHICH CONFORMS TO PARAGRAPH 3.4 OF MILITARY SPECIFICATION MIL S- 24167, IT SHOULD BE NOTED THAT THE RFP DID NOT MAKE THE REQUIREMENT SUBJECT TO THIS SPECIFICATION, SO THAT EVEN IF EMERSON'S MATERIAL IS NONCONFORMING TO THE SUBJECT SPECIFICATION IN THE MANNER YOU ALLEGE, THIS FACTOR, IN ITSELF, COULD NOT HAVE PRECLUDED AN AWARD TO THAT CONCERN. FURTHERMORE, THE DEPARTMENT STATES THAT THE "BRAND NAME OR EQUAL" METHOD OF PROCUREMENT WAS USED IN THE SUBJECT RFP IN LIEU OF THIS MILITARY SPECIFICATION, AS THAT PARTICULAR SPECIFICATION COVERS THE REQUIREMENTS FOR A RIGID, CELLULAR, RESIN SYSTEM AND DOES NOT APPLY TO THE REQUIREMENTS FOR MICROSPHERES ONLY, WHICH WERE TO BE PROCURED UNDER THIS SOLICITATION.

WITH RESPECT TO YOUR CONTENTION THAT THE EMERSON PRODUCT IS NOT RECOMMENDED FOR BUOY USE, THE DEPARTMENT STATES THAT THE DESCRIPTIVE LITERATURE SUBMITTED WITH EMERSON'S PROPOSAL IS SILENT ON BUOY USE. VIEW THEREOF, AND INASMUCH AS THE DEPARTMENT'S TECHNICAL PERSONNEL WHO EVALUATED THE "EQUAL" ITEM DID NOT TAKE AN EXCEPTION TO THE EMERSON PRODUCT IN THIS AREA, THE PROCURING ACTIVITY DID NOT RAISE ANY QUESTION PRIOR TO AWARD CONCERNING THE UTILITY OF THE MICROSPHERES FOR "HYDROSPACE" APPLICATIONS.

SINCE THE RFP DID NOT SPECIFY THAT "EQUAL" MODELS WERE TO MEET SPECIFIC REQUIREMENTS IN CONNECTION WITH THE USE OF THE ITEMS FOR HYDROSPACE APPLICATIONS, WE CANNOT CONCLUDE THAT THE AWARD TO EMERSON WAS IMPROPER FOR THIS REASON. HOWEVER, WE ARE RECOMMENDING THAT THE DEPARTMENT UNDERTAKE A THOROUGH REVIEW OF THE TECHNICAL REQUIREMENTS OF THE USING ACTIVITY FOR THE MICROSPHERES BEFORE ANY ADDITIONAL REQUIREMENTS OF THESE ITEMS ARE PROCURED.

WITH RESPECT TO YOUR CONTENTION THAT THE MICROSPHERES SHOULD HAVE BEEN EVALUATED ON THE BASIS OF VOLUME RATHER THAN WEIGHT, THE DEPARTMENT STATES THAT YOU DID NOT ADVISE THE BUYER OF YOUR POSITION IN THIS MATTER PRIOR TO THE CLOSING DATE SET FOR RECEIPT OF PROPOSALS. FURTHERMORE, THE PROCURING ACTIVITY STATES THAT YOUR POSITION IN THIS MATTER APPEARS TO BE TAKEN FROM A STATEMENT SET FORTH IN THE TECHNICAL BROCHURE SUBMITTED WITH YOUR OFFER WHICH STATED THAT THE COST OF THE MICROSPHERES SHOULD BE DETERMINED ON A DENSITY BASIS. IN THIS CONNECTION, THE DEPARTMENT POINTS OUT THAT SUCH STATEMENT WAS EXPRESSLY SUBJECT TO THE CONDITION THAT ANY STATEMENT MADE IN YOUR BROCHURE WAS NOT GUARANTEED. ACCORDINGLY, THE DEPARTMENT MAINTAINS THAT EVALUATION OF THE REQUIREMENT ON A DENSITY BASIS WAS NOT WARRANTED IN THE SUBJECT PROCUREMENT, AND THAT SUCH METHOD SHOULD NOT BE USED AS THE BASIS FOR DETERMINING THE SUCCESSFUL OFFEROR IN ANY FUTURE PROCUREMENTS OF MICROSPHERES WITHOUT ADDITIONAL TECHNICAL RESEARCH. BASED ON OUR EXAMINATION OF THE PRESENT RECORD, WE CANNOT DISPUTE THIS ANALYSIS.

IN THIS CONNECTION, THE DEPARTMENT HAS ADVISED US THAT IT IS ITS INTENT TO REQUEST THE CREATION OF A MILITARY SPECIFICATION TO COVER THE PROCUREMENT OF MICROBALLOONS ONLY AND ALSO TO CONSIDER THE INCLUSION OF AN EVALUATION FACTOR BASED ON DENSITY WITHIN THE SPECIFICATION FOR FUTURE PROCUREMENTS OF THESE ITEMS.

FROM OUR REVIEW OF THE CIRCUMSTANCES OF THIS PROCUREMENT, WE CANNOT CONCLUDE THAT THE SUBJECT CONTRACT WAS ILLEGALLY AWARDED, AND, THEREFORE, YOUR PROTEST, INSOFAR AS IT REQUESTS CANCELLATION OF EMERSON'S CONTRACT, MUST BE DENIED.