B-175062, APR 17, 1972

B-175062: Apr 17, 1972

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IN RESPONSE TO PROTESTANT'S CONTENTION THAT THE SPECIFICATIONS ARE INADEQUATE FOR ANY EXCEPT ASC TO PRODUCE THE DESIRED END PRODUCT. IT IS THE OPINION OF THE COMP. THAT A QUESTION RELATING TO THE ADEQUACY OF THE SPECIFICATIONS IS PRIMARILY A MATTER FOR THE PROCURING ACTIVITY AND TARGET AND ABSENT AN EXPRESSION OF CONCERN FROM ONE OF THOSE PARTIES. SINCE NO AWARD HAS BEEN MADE AND A NEGOTIATED PROCUREMENT IS INVOLVED. OUR OFFICE IS LIMITED IN ITS RECITATION OF THE FACTS BY SECTION 3-507.2 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). THE SUBJECT RFP WAS ISSUED ON JULY 26. THE RIGHT TO WAIVE FIRST ARTICLE TESTING FOR PRIOR PRODUCERS WAS RESERVED. THE RFP WAS AMENDED TO PROVIDE FOR LIQUIDATED DAMAGES FOR PRODUCTION DELIVERY DELAYS.

B-175062, APR 17, 1972

BID PROTEST - RESPONSIVENESS - ALLEGED INADEQUACY OF SPECIFICATIONS DECISION DENYING THE PROTEST OF ASC SYSTEMS CORPORATION (ASC) AGAINST THE PROPOSED AWARD OF A CONTRACT TO TARGET CORPORATION UNDER AN RFP ISSUED BY THE NAVAL ELECTRONIC SYSTEMS COMMAND, WASHINGTON, D.C. IN RESPONSE TO PROTESTANT'S CONTENTION THAT THE SPECIFICATIONS ARE INADEQUATE FOR ANY EXCEPT ASC TO PRODUCE THE DESIRED END PRODUCT, THE PROCURING ACTIVITY HAS STATED THAT THE KNOWLEDGE OF TARGET'S PRODUCT ENGINEER TOGETHER WITH ITS RADAR TEST SET PROVIDE THAT COMPANY WITH ALL NECESSARY KNOWLEDGE OF THE SPECIFICATIONS. IT IS THE OPINION OF THE COMP. GEN. THAT A QUESTION RELATING TO THE ADEQUACY OF THE SPECIFICATIONS IS PRIMARILY A MATTER FOR THE PROCURING ACTIVITY AND TARGET AND ABSENT AN EXPRESSION OF CONCERN FROM ONE OF THOSE PARTIES, IT NEED NOT BE CONSIDERED. FURTHER, SECTION C(21) OF THE SUBJECT RFP CLEARLY CONTEMPLATES CONSIDERATION OF A SINGLE BID PRICE WHERE THE OFFEROR DOES NOT QUALIFY FOR WAIVER OF FIRST ARTICLE TESTING.

TO ASC SYSTEMS CORPORATION:

WE REFER TO YOUR TELEFAX DATED JANUARY 27, 1972, AND SUBSEQUENT CORRESPONDENCE PROTESTING AGAINST AWARD OF ANY CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) NO. N00039-72-R-0101(S), ISSUED BY THE UNITED STATES NAVAL ELECTRONIC SYSTEMS COMMAND, WASHINGTON, D.C.

SINCE NO AWARD HAS BEEN MADE AND A NEGOTIATED PROCUREMENT IS INVOLVED, OUR OFFICE IS LIMITED IN ITS RECITATION OF THE FACTS BY SECTION 3-507.2 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

THE SUBJECT RFP WAS ISSUED ON JULY 26, 1971, AS A SOLE-SOURCE PROCUREMENT TO YOUR COMPANY FOR THE PRODUCTION AND DELIVERY OF 371 TYPE 1, CLASS A, FIELD CHANGE KITS FOR AN/UPM-98A RADAR TEST SETS COMPLETE WITH 2 FIELD CHANGE BULLETINS, TOGETHER WITH PROVISIONING DATA AND AN OPTION FOR MAINTENANCE REPAIR PARTS. HOWEVER, TARGET CORPORATION REQUESTED AND RECEIVED A COPY OF THE RFP AND SUBMITTED A TIMELY PROPOSAL. THE RIGHT TO WAIVE FIRST ARTICLE TESTING FOR PRIOR PRODUCERS WAS RESERVED. BY LETTER OF SEPTEMBER 24, 1971, THE RFP WAS AMENDED TO PROVIDE FOR LIQUIDATED DAMAGES FOR PRODUCTION DELIVERY DELAYS. SUBSEQUENTLY, BY LETTER DATED NOVEMBER 24, 1971, BOTH YOUR COMPANY AND TARGET WERE ADVISED THAT PROPOSALS WERE BEING EVALUATED ON A COMPETITIVE BASIS AND THAT A BEST AND FINAL OFFER WAS REQUESTED BY DECEMBER 3, 1971. THEREAFTER, ON DECEMBER 10, 1971, A SECOND AMENDMENT TO THE RFP WAS ISSUED TO PROVIDE THE DATA NECESSARY TO MAKE THE FIELD CHANGE BULLETINS COMPATIBLE WITH INTERIM CHANGES TO THE AN/UPM-98A. THE FINAL OFFERS RECEIVED FROM BOTH YOUR FIRM AND TARGET ARE ABSTRACTED BELOW:

INCLUDING FIRST WITHOUT FIRST

ARTICLE TESTING ARTICLE TESTING

ASC $129,162.80 $125,452.80

TARGET $117,236.00 (NOT APPLICABLE)

YOUR PROTEST IS PRIMARILY BASED ON THE PREMISE THAT THE SPECIFICATIONS CONTAINED IN THE REQUEST FOR PROPOSALS ARE INADEQUATE FOR ANY EXCEPT ASC TO PRODUCE THE DESIRED END PRODUCT. IN THIS RESPECT, YOU CONTEND THAT:

"1. THE DESCRIPTION OF THE TYPE I CLASS A FIELD CHANGE KITS FOR AN/UPM- 98A RADAR TEST SETS AS REQUIRED FOR THE SOLICITATION LINE ITEMS 0001 AND 0002 IS CONTAINED IN SECTION F OF THE SOLICITATION. THE SECTION, FOR BREVITY, REFERS TO INCORPORATION OF THE KIT INTO ITEMS DELIVERED UNDER CONTRACT NOBSR 95066, WHICH REFERENCE IS LUCID TO ASC SYSTEMS WHO PERFORMED UNDER THAT CONTRACT, BUT IS AN IMPROPER REFERENCE IF THE SOLICITATION IS OPEN FOR COMPETITION, SINCE OTHERS CANNOT KNOW WHAT EQUIPMENT WAS DELIVERED UNDER THE CITED REFERENCE.

"2. THE DESCRIPTION OF THE DESIRED KIT IS GENERAL, AND ADEQUATE IF VIEWED ALONE, BUT COMPLETELY INADEQUATE WHEN COUPLED WITH THE 'INTERCHANGEABILITY (E-70 JAN)' REQUIREMENT STATED ON PAGE 19 IN SECTION F OF THE SOLICITATION.

"3. THE SOLICITATION OFFERS AS GFP, CERTAIN FIELD CHANGE BULLETINS FOR PACKING WITH THE KIT, UNDER SECTION J - SPECIAL PROVISIONS ON PAGE 33 OF THE SOLICITATION. THIS BULLETIN DESCRIBES A LARGER, MORE COMPLEX KIT PREVIOUSLY SUPPLIED BY ASC SYSTEMS, INTENDED TO MODIFY OLDER FIELD UNITS FROM AN AN/UPM-98 (NO'A') CONFIGURATION, TO AN AN/UPM-98B CONFIGURATION AND WHILE THE DESIRED KIT IS A PART OF THE LARGER ONE DESCRIBED IN THE BULLETIN, THERE ARE CHANGES KNOWN TO ASC SYSTEMS WHICH WOULD NOT BE KNOWN TO OTHERS FROM THE SOLICITATION INSTRUCTIONS. THIS INADEQUACY WAS POINTED OUT IN ASC SYSTEMS' ORIGINAL SUBMITTAL LETTER AND BECAME THE ISSUE OF SUBSEQUENT SOLICITATION AMENDMENTS."

IN RESPONSE TO YOUR ARGUMENT OF INADEQUATE SPECIFICATIONS COUPLED WITH YOUR REFERENCE TO THE "INTERCHANGEABILITY" REQUIREMENT FOUND IN SECTION F OF THE SOLICITATION, THE ACTIVITY HAS INFORMED THIS OFFICE IN PERTINENT PART (A COPY OF THE FULL REPORT WAS PREVIOUSLY FURNISHED TO YOU) AS FOLLOWS:

"WITH REGARD TO THE ALLEGATIONS THAT AS A PRIOR PRODUCER, ASC HAD EXCLUSIVE FAMILIARITY WITH THE AN/UPM-98 BY REASON OF PRODUCTION UNDER CONTRACT NOBSR 95066 SO AS TO MAKE THE SPECIFICATIONS FOR THE FIELD CHANGE KIT AND THE INTERCHANGEABILITY REQUIREMENTS UNINTELLIGIBLE TO TARGET, REFERENCE IS MADE TO THE FOLLOWING STATEMENT MADE BY TARGET IN RESPONSE TO THE RFP:

'PERSONNEL AT TARGET CORPORATION ARE INTIMATELY FAMILIAR WITH THE FIELD CHANGE TO BE SUPPLIED AND OUR PROJECT LEADER, MR. ROBERT ROGERS, WAS THE PROJECT AND DESIGN ENGINEER OF THIS PARTICULAR FIELD CHANGE WHEN HE WAS ASSOCIATED WITH THE ADMIRAL CORPORATION.'

"FURTHERMORE, TARGET HAS STATED THAT AMONG THE TEST EQUIPMENT AVAILABLE AT TARGET FOR THE PERFORMANCE OF ANY CONTRACT RESULTING FROM THIS RFP IS A RADAR TEST SET, AN/UPM-98. THE PRESENCE OF THE AN/UPM-98 IN THE TARGET PLANT WAS CONFIRMED BY DCASR, CHICAGO, DURING THE PERFORMANCE OF A PRE- AWARD SURVEY WHICH RECOMMENDED THAT AWARD BE MADE TO TARGET. IT SEEMS CLEAR, THEREFORE, THAT INTIMATE KNOWLEDGE OF THE TARGET PROJECT LEADER OF THE FIELD CHANGE KITS TOGETHER WITH THE RADAR TEST SET TO WHICH THE FIELD CHANGE KITS ARE TO BE ADDED PROVIDE TARGET WITH ALL NECESSARY KNOWLEDGE OF THE SPECIFICATIONS."

YOU QUESTION THE PROPRIETY OF RELYING ON THE EXPERIENCE OF THE DESIGNATED INDIVIDUAL, YOUR FORMER EMPLOYEE. THAT EXPERIENCE IS DATED BY TWO YEARS AND IS LIMITED TO THE ELECTRICAL DESIGN OF THE FIELD CHANGE KIT, THE MECHANICAL PORTIONS HAVING BEEN HANDLED BY ANOTHER ENGINEER. THEREFORE, IT IS YOUR CONTENTION THAT WHILE THE SPECIFICATIONS ARE ADEQUATE FOR YOUR FIRM AS A PRIOR SUPPLIER, THEY ARE NOT SUFFICIENT FOR A FIRM SUCH AS TARGET, WHICH HAS NOT PREVIOUSLY PRODUCED THIS PRODUCT.

AS TO YOUR CONTENTION THAT THE SPECIFICATIONS ARE INADEQUATE TO ALLOW TARGET TO PROPERLY PERFORM UNDER THE SOLICITATION, THE RECORD DISCLOSES NO SUCH COMPLAINT FROM TARGET. WE BELIEVE THAT THE ADEQUACY OF THE SPECIFICATIONS TO PERMIT ANYONE OTHER THAN YOUR FIRM TO PERFORM IS A MATTER PRIMARILY FOR THE PROCURING ACTIVITY AND SUCH OTHER PROSPECTIVE PRODUCER. ABSENT AN EXPRESSION OF CONCERN FROM ONE OF THOSE PARTIES, WE DO NOT CONSIDER IT NECESSARY TO CONSIDER THE MATTER.

NAVY HAS REITERATED ITS CONFIDENCE IN THE CAPABILITY OF TARGET TO PERFORM AS REQUIRED. THE CONTRACTING OFFICER BASES HIS RELIANCE PRIMARILY ON THE PRE-AWARD SURVEY CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION, CHICAGO, WHICH RESULTED IN A RECOMMENDATION FOR AWARD. THE NAVAL ELECTRONIC SYSTEMS COMMAND BELIEVES THAT TARGET POSSESSES THE IN-HOUSE CAPABILITY TO MEET THE PRODUCT REQUIREMENTS, INCLUDING INTERCHANGEABILITY. ALTHOUGH YOU OFFER A NUMBER OF ARGUMENTS TO SUPPORT THE CONTRARY VIEW, WE CANNOT SAY THAT THE EVIDENCE CONTAINED IN THE RECORD SUPPORTS A CONCLUSION THAT TARGET COULD NOT BE EXPECTED TO RESPOND WITH AN ACCEPTABLE END-PRODUCT.

YOU ALSO CONTEND THAT THE RFP REQUIRED EACH OFFEROR TO SUBMIT TWO PRICES, AND SINCE TARGET SUBMITTED ONLY ONE PRICE, ITS OFFER SHOULD HAVE BEEN REJECTED. YOU REFER SPECIFICALLY TO SECTION C(21) OF THE SOLICITATION WHICH IS SET FORTH IN PERTINENT PART BELOW.

"SECTION C

"(21) WAIVER OF FIRST ARTICLE APPROVAL REQUIREMENTS - ALTERNATE OFFERS (E -70 JAN)

THE GOVERNMENT RESERVES THE RIGHT TO WAIVE THE FIRST ARTICLE APPROVAL REQUIREMENTS SPECIFIED HEREIN FOR OFFERORS WHO HAVE PREVIOUSLY FURNISHED ARTICLES ACCEPTED BY THE GOVERNMENT THAT ARE IDENTICAL OR SIMILAR TO THOSE REQUIRED HEREUNDER. OFFERORS FOR WHOM A WAIVER MIGHT BE GRANTED FOR THE FOREGOING REASON ARE CAUTIONED TO SUBMIT EVIDENCE WITH THEIR OFFERS TO ESTABLISH THEIR ELIGIBILITY FOR WAIVER. SUCH OFFERORS ARE ALSO CAUTIONED TO SUBMIT TWO PRICES FOR THE ARTICLES REQUIRED HEREIN. OFFER A, WHICH IS BASED ON COMPLIANCE WITH THE FIRST ARTICLE APPROVAL REQUIREMENTS, AND OFFER B, WHICH IS BASED ON A WAIVER OF SUCH REQUIREMENTS. WHERE AN OFFEROR SUBMITS ONLY ONE PRICE AND FAILS TO INDICATE WHETHER IT IS BASED ON COMPLIANCE WITH THE FIRST ARTICLE APPROVAL REQUIREMENTS OR ON THE WAIVER THEREOF, IT WILL BE DEEMED TO BE BASED ON COMPLIANCE WITH THE FIRST ARTICLE APPROVAL REQUIREMENTS."

SECTION C(21) REQUESTS THE SUBMISSION OF TWO PRICES ONLY FROM THOSE OFFERORS FOR WHOM A WAIVER OF THE FIRST ARTICLE APPROVAL REQUIREMENT MIGHT BE GRANTED. SINCE TARGET DID NOT QUALIFY FOR A WAIVER OF THIS REQUIREMENT, NO USEFUL PURPOSE WOULD HAVE BEEN SERVED BY SUBMITTING MORE THAN ONE PRICE. THE LAST SENTENCE IN THE QUOTATION CLEARLY CONTEMPLATES CONSIDERATION OF BIDS OFFERING ONLY ONE PRICE.

IN VIEW OF THE FOREGOING, THE PROTEST MUST BE DENIED.