B-174972, AUG 3, 1972

B-174972, AUG 3, 1972

BID PROTEST - DOCUMENTATION REQUIREMENTS - EVALUATION OF PRODUCT OFFERED DENIAL OF PROTEST BY STEWART AVIONICS, INC., AGAINST THE AWARD OF A CONTRACT UNDER AN RFP ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VA., FOR OXYGEN REGULATORS. WHILE PROTESTANT DID SUBMIT A DRAWING OF THE OXYGEN REGULATOR HE PROPOSED TO FURNISH, HE DID NOT SUPPLY THE ADDITIONAL REQUIRED DATA AND, CONSEQUENTLY, THE CONTRACTING OFFICER WAS UNABLE TO SUBMIT THE PROPOSAL FOR EVALUATION. SINCE THE RECORD CLEARLY INDICATES THAT PROTESTANT DID NOT COMPLY WITH THE DOCUMENTATION REQUIREMENTS OF THE RFP, THE PROTEST MUST BE DENIED.

TO STEWART AVIONICS, INCORPORATED:

REFERENCE IS MADE TO YOUR TELEFAX DATED JANUARY 18, 1972, AND LETTER OF JANUARY 26, 1972, PROTESTING AGAINST AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) NO. DSA400-72-R-1737, ISSUED SEPTEMBER 9, 1971, BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA, FOR OXYGEN REGULATORS.

THE SOLICITATION DESCRIBED THE ITEM AS "HENRY SPEN & CO. INC. P/N 300287." AN AMENDMENT TO THE RFP ADDED A "PRODUCTS OFFERED" CLAUSE, WHICH INCLUDED THE FOLLOWING LANGUAGE:

"(A) PRODUCTS OFFERED MUST EITHER BE IDENTICAL OR FUNCTIONALLY, PHYSICALLY, MECHANICALLY, AND ELECTRICALLY INTERCHANGEABLE WITH THE PRODUCTS CITED IN EACH PROCUREMENT IDENTIFICATION DESCRIPTION OF THIS SOLICITATION.

"(B) FOR EVALUATION PURPOSES OFFERORS MUST INDICATE, BY MARKING THE APPROPRIATE BLOCKS), WHICH OF THE FOLLOWING SITUATIONS IS APPLICABLE TO EACH ITEM WHICH THEY ARE OFFERING AND FURNISH WHATEVER SUPPORTING INFORMATION IS REQUIRED BELOW. 'FAILURE TO FURNISH COMPLETE DATA AND INFORMATION REQUIRED TO SUPPORT SITUATIONS (2), (3) AND (4) BELOW MAY PRECLUDE CONSIDERATION OF YOUR PROPOSAL.'

"(1) FOR ITEMS WILL FURNISH THE CITED MANUFACTURER'S PRODUCT BEARING THE NUMBER SPECIFIED.

"(3) FOR ITEMS WILL FURNISH A PRODUCT DETERMINED UNDER PRIOR MILITARY CONTRACTS, EITHER AS A PRIME OR SUBCONTRACTOR TO BE FUNCTIONALLY, PHYSICALLY, MECHANICALLY AND ELECTRICALLY INTERCHANGEABLE WITH THE PRODUCT CITED IN THIS SOLICITATION THOUGH NOT MANUFACTURED IN ACCORDANCE WITH THE CITED MANUFACTURER'S DRAWING OR SPECIFICATION.

NOTE: OFFERORS RELYING ON THIS PARAGRAPH (3) MUST *** FURNISH SUFFICIENT DATA TO SUITABLY SUBSTANTIATE THE ITEM AS ACCEPTABLE. AS A MINIMUM, THE FOLLOWING DATA MUST BE FURNISHED (1) COPY OF CONTRACT OR PURCHASE ORDER UNDER WHICH FURNISHED, AND (2) COPY OF A DRAWING TO WHICH MADE.

"(4) FOR ITEMS WILL FURNISH A PRODUCT WHICH IS EQUAL IN ALL MATERIAL RESPECTS TO THE PRODUCT REFERENCED IN THE ITEM DESCRIPTION. THE FOLLOWING NOTE IS APPLICABLE:

NOTE: (A) THE GOVERNMENT DOES NOT HAVE DETAILED DATA FOR THE ITEM REFERENCED ***. THEREFORE, OFFERORS RELYING ON THIS PARAGRAPH (4) MUST FURNISH WITH THEIR OFFERS DRAWINGS AND OTHER DATA WHICH WILL CLEARLY DESCRIBE THE CHARACTERISTICS AND FEATURES OF THEIR PRODUCT. IN ADDITION, OFFERORS MUST FURNISH DRAWINGS OR OTHER DATA COVERING DESIGN, MATERIALS, PERFORMANCE, ETC. OF THE PRODUCT CITED IN THE SCHEDULE SUFFICIENT TO ENABLE THE GOVERNMENT TO DETERMINE THAT THE OFFEROR'S PRODUCT IS EQUAL TO THE PRODUCT NAMED IN THE SCHEDULE."

YOUR PROPOSAL STATED THAT YOU WOULD FURNISH THE CITED MANUFACTURER'S PRODUCT. HOWEVER, YOU ALSO INDICATED ON SF 33, INCLUDED WITH THE PROPOSAL, THAT YOU ARE A MANUFACTURER OF THE SUPPLIES OFFERED AND A SMALL BUSINESS CONCERN, AND THAT THE SUPPLIES TO BE FURNISHED WOULD BE MANUFACTURED BY A SMALL BUSINESS CONCERN. YOU DID NOT SUBMIT WITH YOUR INITIAL OFFER ANY OF THE DATA DESCRIBED IN THE NOTES QUOTED ABOVE.

THE PRE-AWARD SURVEY TEAM WAS REQUESTED TO DETERMINE HOW YOU COULD FURNISH THE HENRY SPEN PRODUCT AND ALSO MANUFACTURE THE ITEM. AT THE TIME OF THE SURVEY, YOU PRESENTED A DRAWING WHICH YOU CLAIM WAS USED IN THE MANUFACTURE BY YOU OF THE SAME ITEM UNDER PREVIOUS CONTRACTS. HOWEVER, THE SURVEY TEAM FOUND THAT THIS DRAWING WAS NOT IDENTIFIED AS A HENRY SPEN DRAWING NOR DID IT IDENTIFY THE SPECIFIC ITEM REQUIRED BY THE RFP. THE SURVEY TEAM FOUND THAT YOU DID NOT POSSESS THE NECESSARY DRAWING AND THEREFORE COULD NOT DEMONSTRATE AN ABILITY TO PRODUCE THE REQUIRED ITEM. IT RECOMMENDED THAT NO AWARD BE MADE TO YOUR COMPANY.

AFTER YOU FILED YOUR PROTEST, THE CONTRACTING OFFICER MADE SEVERAL REQUESTS BETWEEN JANUARY 18, 1972, AND FEBRUARY 29, 1972, THAT YOU FURNISH COPIES OF THE CONTRACTS UNDER WHICH YOU CLAIMED TO HAVE SUPPLIED THE REQUIRED ITEM. YOU DID NOT COMPLY WITH THE REQUESTS, INSTEAD YOU ADVISED THAT THE CONTRACTS WERE STORED IN A WAREHOUSE. INDEPENDENTLY, THE DEFENSE SUPPLY AGENCY ALSO ATTEMPTED TO LOCATE THE CONTRACTS USING THE NUMBERS YOU FURNISHED, BUT WAS UNABLE TO DO SO.

DURING THIS PERIOD, THE AVIATION SUPPLY OFFICE (ASO), FOR WHICH THE REGULATORS WERE BEING PROCURED, ADVISED THE CONTRACTING OFFICER THAT IT WAS NOT POSSIBLE TO EVALUATE PROPOSALS OFFERING TO FURNISH OTHER THAN THE HENRY SPEN PRODUCT BECAUSE SPEN DRAWINGS AND DATA WERE NOT AVAILABLE FOR AN EQUIVALENCY COMPARISON. ASO INDICATED THAT THE INTERCHANGEABILITY OF OXYGEN REGULATORS WAS BEING STUDIED, BUT THAT PENDING THE OUTCOME OF THE STUDY THE PROCUREMENT WOULD HAVE TO BE RESTRICTED TO HENRY SPEN & COMPANY, INCORPORATED. AWARD WAS MADE TO SPEN ON MARCH 24, 1972.

YOU STATE THAT YOU SUBMITTED THE LOW CONFORMING PROPOSAL, THAT YOU PREVIOUSLY FURNISHED THE DESIRED END ITEM AND THAT YOU FURNISHED TO THE SURVEY TEAM THE DRAWINGS USED FOR THOSE PRIOR PROCUREMENTS. YOU DO NOT CHALLENGE ANY PROVISION OF THE RFP ITSELF.

IT IS NOT CLEAR FROM YOUR PROPOSAL WHETHER YOU INTENDED TO FURNISH THE HENRY SPEN PRODUCT OR MANUFACTURE A SUITABLE SUBSTITUTE. THE RECORD BEFORE US AFFIRMATIVELY ESTABLISHES THAT YOU AND THE CONTRACTING AGENCY VIEWED YOUR OFFER AS ONE TO FURNISH A PRODUCT NOT MANUFACTURED BY HENRY SPEN. IN ANY CASE, UNDER THE TERMS OF THE RFP, YOU WERE REQUIRED TO FURNISH DATA DESCRIBING YOUR PRODUCT AND, DEPENDING ON THE BASIS OF YOUR PROPOSAL, EITHER DATA DESCRIBING THE SPEN PRODUCT OR COPIES OF THE CONTRACTS UNDER WHICH YOU PREVIOUSLY FURNISHED THE ITEM.

WHILE YOU DID FURNISH A DRAWING OF THE OXYGEN REGULATORS YOU PROPOSED TO FURNISH, YOU DID NOT SUBMIT ANY OF THE ADDITIONAL REQUIRED DATA. THE CONTRACTING OFFICER WAS THEREFORE UNABLE TO SUBMIT YOUR PROPOSAL FOR EVALUATION. UNDER THESE CIRCUMSTANCES, WE THINK THE CONTRACTING OFFICER PROPERLY DETERMINED THAT YOUR PROPOSAL COULD NOT BE CONSIDERED FOR AWARD. IN THIS CONNECTION, THE CONTRACTING OFFICER HAS ADVISED THAT THE EQUIPMENT IS "CRITICAL TO THE SAFETY OF PERSONNEL AND EQUIPMENT" AND THERE WAS AN URGENT NEED FOR THE ITEMS. IN THE CIRCUMSTANCES, WE CAN FIND NO LEGAL OBJECTION TO THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.