B-174639, MAR 13, 1972

B-174639: Mar 13, 1972

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THE DRAFTING OF ADEQUATE SPECIFICATIONS IS THE RESPONSIBILITY OF THE PROCURING ACTIVITY AND ABSENT A SHOWING THAT THE AGENCY HAS ACTED ARBITRARILY. WILL NOT IMPOSE HIS JUDGMENT WITH REGARD TO TECHNICAL MATTERS. 49 COMP. IT SHOULD BE NOTED THAT OBJECTIONS WOULD MORE PROPERLY HAVE BEEN BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER PRIOR TO THE BID CLOSING DATE. PROTESTANT MUST BE DEEMED TO HAVE ACQUIESCED TO THE EVALUATION CRITERIA SET OUT IN THE INVITATION AND MAY NOT NOW BE ALLOWED TO TAKE EXCEPTION TO IT. 50 COMP. THE PROTEST IS DENIED. INCORPORATED: REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 2. THE INVITATION WAS FOR QUANTITIES OF OGIVES. WHICH STATED THE FINAL PROTECTIVE FINISH WAS TO BE "FINISH 1.9.2.3 OR 1.1.2.3 OF MIL STD 171.".

B-174639, MAR 13, 1972

BID PROTEST - PARTIAL LABOR SET-ASIDE - ALLEGED IMPROPER EVALUATION FACTORS DECISION DENYING PROTEST OF TRO MANUFACTURING COMPANY, INC., AGAINST AWARD OF A PARTIAL LABOR SET-ASIDE TO ANY OTHER BIDDER UNDER AN IFB ISSUED BY THE ARMY MUNITIONS COMMAND, JOLIET, ILL., FOR A PROCUREMENT OF OGIVES, A METALLIC PART FOR USE WITH FUZES. THE DRAFTING OF ADEQUATE SPECIFICATIONS IS THE RESPONSIBILITY OF THE PROCURING ACTIVITY AND ABSENT A SHOWING THAT THE AGENCY HAS ACTED ARBITRARILY, THE COMP. GEN. WILL NOT IMPOSE HIS JUDGMENT WITH REGARD TO TECHNICAL MATTERS. 49 COMP. GEN. 156, 160 (1969). IT SHOULD BE NOTED THAT OBJECTIONS WOULD MORE PROPERLY HAVE BEEN BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER PRIOR TO THE BID CLOSING DATE. BY ITS PARTICIPATION, PROTESTANT MUST BE DEEMED TO HAVE ACQUIESCED TO THE EVALUATION CRITERIA SET OUT IN THE INVITATION AND MAY NOT NOW BE ALLOWED TO TAKE EXCEPTION TO IT. 50 COMP. GEN. 193 (1970). ACCORDINGLY, THE PROTEST IS DENIED.

TO TRO MANUFACTURING COMPANY, INCORPORATED:

REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 2, 1971, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST AWARDS MADE UNDER IFB DAAA09-72-B-0023, ISSUED BY THE U.S. ARMY MUNITIONS COMMAND, JOLIET, ILLINOIS.

THE INVITATION WAS FOR QUANTITIES OF OGIVES, A METALLIC PART FOR USE WITH FUZES, AND PROVIDED FOR A PARTIAL SET ASIDE-FOR LABOR SURPLUS AREA CONCERNS. THE IFB INCLUDED A DRAWING NO. 8798220, WHICH STATED THE FINAL PROTECTIVE FINISH WAS TO BE "FINISH 1.9.2.3 OR 1.1.2.3 OF MIL STD 171." FINISH 1.9.2.3 IS ELECTRODEPOSITED ZINC, WHILE FINISH 1.1.2.3 IS CADMIUM.

AFTER BID OPENING ON OCTOBER 21, 1971, FOUR OF THE FIVE BIDS RECEIVED WERE EVALUATED ON THE BASIS OF BID PRICE, DISCOUNT, AND TRANSPORTATION, AND YOU WERE FOUND TO BE THE FOURTH LOW BIDDER. AWARD WAS MADE TO THE LOW BIDDER ON NOVEMBER 24, 1971, AND AWARD FOR THE SET-ASIDE PORTION WAS MADE ON NOVEMBER 30, 1971. YOU THEN PROTESTED THAT THE BIDS WERE IMPROPERLY EVALUATED AND REQUESTED RESOLICITATION.

YOU INDICATE THAT YOUR BID, UNLIKE THE OTHERS, WAS BASED ON FURNISHING A CADMIUM COATING, WHICH IS MORE EXPENSIVE THAN ZINC. YOU STATE THAT EXPERIENCE IN VIETNAM WITH ZINC PLATING HAS REFLECTED A HIGH RATE OF BREAKDOWN IN PROTECTIVE FINISH, WHICH HAS RESULTED IN A REQUIREMENT FOR CADMIUM IN CERTAIN OTHER CONTRACTS, ALTHOUGH THE SPECIFICATIONS WERE NOT FORMALLY CHANGED. YOU REFER TO RECENT CASES INVOLVING REPROCESSING OF OGIVES BECAUSE OF FAILURE OF THE ZINC COATING IN STORAGE, AT ADDITIONAL COST TO THE GOVERNMENT. IT IS YOUR POSITION THAT SINCE OGIVES TO BE PRODUCED UNDER THIS IFB WILL REQUIRE LONG TERM STORAGE BECAUSE OF LOW LEVEL FIELD DEMAND, A SPOILAGE FACTOR SHOULD HAVE BEEN INCLUDED IN THE EVALUATION TO PROPERLY DETERMINE THE TRUE COST TO THE GOVERNMENT. YOU INDICATE THAT IF A SPOILAGE FACTOR HAD BEEN APPLIED, BASED ON YOUR ESTIMATES YOUR BID WOULD HAVE BEEN SECOND LOW, MAKING YOU ELIGIBLE FOR THE SET-ASIDE PORTION OF THE AWARD.

YOUR PROTEST IS PREDICATED ON THE CLAIM THAT ZINC PLATING IS INFERIOR TO CADMIUM AND ITS USE WILL RESULT IN HIGHER TOTAL COST TO THE GOVERNMENT. HOWEVER, THE ARMY'S ADMINISTRATIVE REPORT STATES THAT WHILE YOUR ALLEGATION CONCERNING THE RECENT REPROCESSING OF OGIVES IS CORRECT, THERE HAVE BEEN NO OTHER INCIDENTS REQUIRING OGIVE REPLATING AND THAT "REPLATING HAS NOT BEEN A CONTINUING PROBLEM." THE ADEQUACY OF THE SPECIFICATIONS WAS REVERIFIED ON SEPTEMBER 13, 1971, AND AGAIN AFTER RECEIPT OF YOUR PROTEST.

WE HAVE CONSISTENTLY HELD THAT IN TECHNICAL MATTERS SUCH AS THIS WE MUST DEFER TO THE JUDGMENT OF THE PROCURING AGENCY IN THE ABSENCE OF EVIDENCE THAT THE AGENCY HAS ACTED ARBITRARILY. FURTHER, IT IS WELL ESTABLISHED THAT THE DRAFTING OF SPECIFICATIONS ADEQUATE TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT IS THE PROPER FUNCTION OF THE AGENCY. 49 COMP. GEN. 156, 160 (1969). SINCE IT IS THE TECHNICAL JUDGMENT OF THE ARMY THAT ZINC AS WELL AS CADMIUM WILL PROVIDE AN ADEQUATE COATING FOR OGIVES, WE FIND NO BASIS FOR REQUIRING AN EVALUATION FACTOR TO REFLECT AN ALLEGED DIFFERENCE BETWEEN THEM.

FURTHERMORE, IF YOU BELIEVED THAT THE ZINC COATING ALLOWED BY THE SPECIFICATIONS WAS INSUFFICIENT TO SATISFY THE GOVERNMENT'S NEEDS OR THAT THE DIFFERENCE BETWEEN ZINC AND CADMIUM NECESSITATED AN APPROPRIATE EVALUATION FACTOR IN THE IFB, YOU SHOULD HAVE SO NOTIFIED THE CONTRACTING OFFICER PRIOR TO THE CLOSING DATE FOR SUBMISSION OF BIDS. THE INVITATION CLEARLY SET FORTH THE EVALUATION FACTORS TO BE USED. UNDER THESE CIRCUMSTANCES, BY PARTICIPATING IN THE BIDDING YOU MUST BE DEEMED TO HAVE ACQUIESCED IN THE EVALUATION OF YOUR BID UNDER THE CRITERIA SET OUT IN THE INVITATION, 50 COMP. GEN. 193 (1970), AND SHOULD NOT NOW TAKE EXCEPTION TO THE CRITERIA.

FOR THE FOREGOING REASONS, YOUR PROTEST MUST BE DENIED.