B-175493(1), APR 20, 1972

B-175493(1): Apr 20, 1972

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THE PRIMARY GROUND OF AEROTRON'S PROTEST IS THAT THE REJECTION OF ITS BID AS NONRESPONSIVE WAS IMPROPER BECAUSE THE QUANTITY-IN-USE EXPERIENCE REQUIREMENT IS REALLY A MATTER OF RESPONSIBILITY. ALTHOUGH THE INVITATION IS NOT A MODEL OF CLARITY. GAO WOULD NOT BE WARRANTED IN REJECTING THE AGENCY'S POSITION THAT THE 5-YEAR EXPERIENCE AND 1-YEAR EXPERIENCE FACTORS ARE SEPARABLE. THE RADIO SETS ARE CRITICAL IN NATURE. THE INCLUSION OF THE 1-YEAR QUANTITY-IN-USE REQUIREMENT WAS CLEARLY DIRECTED TO THE RELIABILITY OF THE UNIT. THE AGENCY'S DETERMINATION THAT AEROTRON'S BID WAS NONRESPONSIVE IS CORRECT AND THE PROTEST MUST BE DENIED. WICKERSHAM AND TAFT: REFERENCE IS MADE TO YOUR LETTERS OF MARCH 21.

B-175493(1), APR 20, 1972

BID PROTEST - NONRESPONSIVENESS - EXPERIENCE REQUIREMENT DECISION DENYING THE PROTEST OF AEROTRON, INC., AGAINST AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER AN IFB ISSUED BY THE IMMIGRATION AND NATURALIZATION SERVICE FOR A PROCUREMENT OF PORTABLE RADIO SETS. THE PRIMARY GROUND OF AEROTRON'S PROTEST IS THAT THE REJECTION OF ITS BID AS NONRESPONSIVE WAS IMPROPER BECAUSE THE QUANTITY-IN-USE EXPERIENCE REQUIREMENT IS REALLY A MATTER OF RESPONSIBILITY. IN GENERAL, EXPERIENCE REQUIREMENTS DO RELATE TO BIDDER RESPONSIBILITY. 45 COMP. GEN. 4 (1965). HOWEVER, IN THE INSTANT CASE, ALTHOUGH THE INVITATION IS NOT A MODEL OF CLARITY, GAO WOULD NOT BE WARRANTED IN REJECTING THE AGENCY'S POSITION THAT THE 5-YEAR EXPERIENCE AND 1-YEAR EXPERIENCE FACTORS ARE SEPARABLE. THE RADIO SETS ARE CRITICAL IN NATURE, INTENDED FOR USE BY BORDER PATROL AGENTS, AND THE INCLUSION OF THE 1-YEAR QUANTITY-IN-USE REQUIREMENT WAS CLEARLY DIRECTED TO THE RELIABILITY OF THE UNIT. ACCORDINGLY, THE AGENCY'S DETERMINATION THAT AEROTRON'S BID WAS NONRESPONSIVE IS CORRECT AND THE PROTEST MUST BE DENIED.

TO CADWALADER, WICKERSHAM AND TAFT:

REFERENCE IS MADE TO YOUR LETTERS OF MARCH 21, 1972, AND APRIL 3, 1972, ON BEHALF OF AEROTRON, INC. (AEROTRON), RALEIGH, NORTH CAROLINA, PROTESTING THE AWARD OF A CONTRACT TO ANYONE OTHER THAN AEROTRON UNDER INVITATION FOR BIDS (IFB) NO. CO 11-72, ISSUED DECEMBER 7, 1971, BY THE IMMIGRATION AND NATURALIZATION SERVICE (SERVICE), UNITED STATES DEPARTMENT OF JUSTICE.

THE IFB CALLS FOR 345 HAND-HELD PORTABLE RADIO SETS (ITEM 1) AND 345 BATTERY CHARGERS (ITEM 2). CLAUSE ONE OF THE ADDITIONAL REQUIREMENTS PORTION OF THE IFB PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"MANUFACTURERS BIDDING ON THE EQUIPMENT MUST HAVE AT LEAST FIVE (5) YEARS EXPERIENCE IN VHF-FM PERSONAL/PORTABLE EQUIPMENT DESIGN AND PRODUCTION, AND MUST HAVE A QUANTITY OF THE TYPE OFFERED IN THIS BID IN SATISFACTORY GENERAL PUBLIC USE FOR AT LEAST ONE YEAR *** ."

THE SERVICE HAS REPORTED THAT THE RADIO SETS WERE SOLICITED EXCLUSIVELY FOR USE OF THE BORDER PATROL AND THAT THE ONE YEAR PROVISION IN THE ABOVE- QUOTED ADDITIONAL REQUIREMENT IS, IN ITS JUDGMENT, THE MINIMUM PERIOD OVER WHICH RELIABILITY OF THE ITEM CAN BE EVALUATED.

FOUR BIDS WERE RECEIVED AND OPENED ON THE SCHEDULED OPENING DATE, JANUARY 17, 1972. THE BIDS WERE AS FOLLOWS:

ITEM 1 ITEM 2 TOTAL

HAMMARLUND MANUFACTURING

CO., INC. $256,362.60 $10,867.50 $267,230.10

AEROTRON, INC. 251,505.00 17,940.00 269,445.00

MOTOROLA COMMUNICATIONS

AND ELECTRONICS, INC. 297,735.00 12,075.00 309,810.00

GENERAL ELECTRIC 313,950.00 12,937.50 326,887.50

CLAUSE 1 OF THE IFB'S GENERAL CONDITIONS PROVIDES THAT THE CONTRACT WILL BE AWARDED IN WHOLE ONLY. HAMMARLUND MANUFACTURING CO., INC., THE LOW BID, SUBMITTED A LETTER WITH THEIR BID LISTING AN EXCEPTION TO PARAGRAPH 1.5.4 OF THE SPECIFICATIONS, RELATING TO THE WIDTH OF ITEM 1. THE EXCEPTION WAS DISALLOWED AND THE BID WAS REJECTED AS NONRESPONSIVE BECAUSE OF THE EXCEPTION.

AEROTRON, THE SECOND LOW BIDDER, OFFERED ITEMS TO BE MANUFACTURED BY LECOM, INC. (LECOM), LEESBURG, SOUTH CAROLINA. IN RESPONSE TO THE SERVICE'S REQUEST FOR DOCUMENTATION ESTABLISHING LECOM'S 5-YEARS EXPERIENCE AND THE 1-YEAR SATISFACTORY GENERAL USE OF THE UNIT, AS SET OUT IN THE ADDITIONAL REQUIREMENTS, YOU STATED THAT THE MATTER SHOULD BE REFERRED TO THE SMALL BUSINESS ADMINISTRATION SINCE BOTH AEROTRON AND LECOM QUALIFY AS SMALL BUSINESS CONCERNS AND BOTH THE EXPERIENCE AND USE FACTORS WERE MATTERS OF "CAPACITY" WITHIN THE MEANING OF THAT TERM IN THE SMALL BUSINESS ACT. IN ADDITION, YOU REQUESTED THAT SHOULD THE SERVICE TAKE A DIFFERENT VIEW, YOUR LETTER WAS TO BE CONSIDERED A PROTEST. SUBSEQUENT INQUIRY OF AEROTRON REQUESTING A LIST OF ORGANIZATIONS PURCHASING OR USING THE SUBJECT EQUIPMENT, RESULTED IN THE DISCLOSURE THAT AS OF MARCH 17, 1972, THE PERIOD OF PUBLIC USE HAD BEEN ONLY FOUR MONTHS AND THAT ON ONLY TWO OF SEVEN RADIOS AND ONE OF FIVE BATTERY CHARGERS. A RESULT, THE CONTRACTING OFFICER DETERMINED AEROTRON'S BID TO BE NONRESPONSIVE SINCE A REASONABLE QUANTITY OF ITEMS OF THE TYPE OFFERED HAD NOT BEEN IN SATISFACTORY GENERAL PUBLIC USE FOR ONE YEAR AS REQUIRED BY THE ADDITIONAL REQUIREMENTS CLAUSE.

YOUR SECONDARY CONTENTIONS ARE (1) ON DECEMBER 22, 1971, THE SERVICE ERRONEOUSLY DEGRADED THE SPECIFICATIONS TO THE BENEFIT OF MOTOROLA; (2) THE IFB ASKED FOR RADIO SETS MEETING SPECIFICATIONS NOT IN THE "GENERAL PUBLIC USE" AND NEVER WOULD BE; AND (3) AEROTRON HAS RECEIVED UNEQUAL TREATMENT SINCE THE SERVICE ALL ALONG HAS ANTICIPATED AWARD TO MOTOROLA (I.E., THE SERVICE NEVER ASKED TO INSPECT OR TO TEST AEROTRON'S RADIO SETS.)

REGARDING THE FIRST TWO CONTENTIONS, OUR OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT THE ADMINISTRATIVE AGENCIES HAVE THE PRIMARY RESPONSIBILITY FOR DRAFTING SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT, AS WELL AS THE RESPONSIBILITY OF DETERMINING WHETHER THE PRODUCT OFFERED MEETS THE SPECIFICATIONS. 44 COMP. GEN. 302 (1964); 38 ID. 190 (1958); 35 ID. 174 (1955); B-163597, APRIL 30, 1968. IN THE ABSENCE OF EVIDENCE CLEARLY INDICATING THAT THE SPECIFICATIONS AS WRITTEN DO NOT REFLECT THE MINIMUM NEEDS OF THE PROCURING ACTIVITY, OR THAT THEY ARE OTHERWISE CONTRARY TO APPLICABLE LAW OR REGULATION, OUR OFFICE MAY NOT PROPERLY OBJECT THERETO.

CONCERNING YOUR THIRD CONTENTION, WE DO NOT CONSIDER THAT THE CONTRACTING ACTIVITY WAS OBLIGATED BY CLAUSE 7 OF THE GENERAL CONDITIONS TO INSPECT PRODUCTS OF BIDDERS WHO WERE FOUND TO BE NONRESPONSIVE TO ESSENTIAL TERMS OF THE INVITATION.

YOUR PRIMARY ALLEGATION IS THAT THE QUANTITY-IN-USE EXPERIENCE REQUIREMENT DEMANDED OF PROSPECTIVE CONTRACTORS GOES TO THE ISSUE OF RESPONSIBILITY, NOT RESPONSIVENESS. YOU CONTEND THAT THE TWO REQUIREMENTS IN CLAUSE 1 OF THE ADDITIONAL REQUIREMENTS DEFINE THE MANUFACTURER'S EXPERIENCE -- FIVE YEARS' EXPERIENCE IN THE PERSONAL/PORTABLE FIELD GENERALLY AND ONE YEAR'S EXPERIENCE IN THE SOLICITED PRODUCT FIELD SPECIFICALLY -- WHICH THE COMPTROLLER GENERAL HAS CONSISTENTLY RECOGNIZED AS ADDRESSING THE RESPONSIBILITY OF THE BIDDER. YOU REBUT THE SERVICE'S CONTENTION THAT THE ISSUE OF RELIABILITY OF THE ITEM IS PARAMOUNT SINCE THIS ISSUE CAN ARISE ONLY IF AND WHEN THE SPECIFICATIONS ARE DIRECTED TO PERFORMANCE HISTORY, I.E., THE PAST OPERATING EXPERIENCE OF THE PRODUCT BEING OFFERED. 48 COMP. GEN. 291, 297 (1968). YOU CONTEND THAT THE SUBJECT IFB SPECIFIES NO PAST SATISFACTORY PERFORMANCE CHARACTERISTICS. IN ADDITION, YOU ALLEGE THAT TO BRING THE PAST PERFORMANCE HISTORY OF AN ITEM INTO QUESTION AND THUS RAISE THE ISSUE OF RESPONSIVENESS, THE CONTRACTING ACTIVITY MUST UNEQUIVOCALLY DEMONSTRATE SUCH INTENT BY A DETAILED STATEMENT OF THE PAST PERFORMANCE REQUIREMENTS IN THE INVITATION. YOU CONTEND THAT THE SERVICE HAS TOTALLY FAILED TO MEET THIS PREREQUISITE, CITING 49 COMP. GEN. 9 (1969) AND 48 ID. 291 (1968).

THE DISTINCTION BETWEEN MATTERS CONCERNING A BIDDERS'S RESPONSIBILITY AND THE RESPONSIVENESS OF ITS BID IS AN IMPORTANT ONE. OUR OFFICE HAS CONSISTENTLY HELD THAT THERE IS NO REQUIREMENT THAT BIDS FAILING TO MEET LITERAL RESPONSIBILITY REQUIREMENTS OF ADVERTISED INVITATION FOR BIDS BE REJECTED, AS WOULD BE THE CASE WITH BIDS DETERMINED TO BE NONRESPONSIVE TO MATERIAL INVITATION REQUIREMENTS, SO LONG AS THE CONTRACTING OFFICIALS ARE SATISFIED THAT THE BIDDER IN QUESTION IS IN FACT RESPONSIBLE OR THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY IS SUBMITTED TO THE SMALL BUSINESS ADMINISTRATION AND THE HOLDER IS ISSUED A CERTIFICATE OF COMPETENCY. 49 COMP. GEN. 9 (1969); 45 ID. 4 (1965); B-170099, JANUARY 22, 1971. WHILE WE HAVE HELD (39 COMP. GEN. 173 (1959)) THAT EXPERIENCE REQUIREMENTS RELATING TO A BIDDER'S RESPONSIBILITY SHOULD NOT BE GIVEN THE EFFECT OF TRANSFORMING A PURELY FACTUAL QUESTION OF BIDDER RESPONSIBILITY INTO A LEGAL QUESTION OF BID RESPONSIVENESS, WE DO NOT BELIEVE THAT THE 1- YEAR QUANTITY-IN-USE EXPERIENCE REQUIREMENT OF CLAUSE 1 OF THE ADDITIONAL REQUIREMENTS DOES THAT HERE. WE BELIEVE IT IS REASONABLY EVIDENT THAT THE QUESTION TO WHICH THE SERVICE WAS SEEKING AN ANSWER, THROUGH INCLUSION OF THE QUANTITY-IN-USE PROVISION, IS NOT WHETHER A MANUFACTURER HAS THE CAPACITY TO PRODUCE THE SPECIFIED UNITS, BUT WHETHER UNITS OF THAT TYPE WHICH THE MANUFACTURER HAS PRODUCED HAVE DEMONSTRATED THEIR RELIABILITY UNDER PROLONGED ACTUAL USE CONDITIONS. IN PREVIOUS DECISIONS WHICH HAVE HELD THAT FAILURE TO MEET EXPERIENCE REQUIREMENTS CLAUSES ARE QUESTIONS OF RESPONSIBILITY, THE CLAUSES INVOLVED IN THOSE CASES WERE DIRECTED PRIMARILY AT THE EXPERIENCE OF THE CONTRACTOR AND NOT THE PERFORMANCE HISTORY OF ITEMS BEING PURCHASED. COMPARE 45 COMP. GEN. 4 (1965); 43 ID. 275 (1963); 41 ID. 737 (1961); 39 ID. 173 (1959) WITH B-149566, OCTOBER 30, 1962.

WHILE WE RECOGNIZE THAT CLAUSE 1 OF THE ADDITIONAL REQUIREMENTS ALSO REFERS TO THE CONTRACTOR'S EXPERIENCE, AND THAT THE IFB DOES NOT ESTABLISH THE INTENT OF THE QUANTITY-IN-USE FACTOR WITH THAT DEGREE OF CLARITY WHICH PRIOR DECISIONS OF THIS OFFICE HAVE INDICATED TO BE DESIRABLE, IN THE CIRCUMSTANCES HERE INVOLVED WE DO NOT BELIEVE THAT WE WOULD BE WARRANTED IN REJECTING THE SERVICE'S POSITION THAT THE 5-YEAR EXPERIENCE AND THE 1- YEAR EXPERIENCE FACTORS ARE SEPARABLE, WITH THE FORMER ADDRESSING ITSELF TO THE RESPONSIBILITY OF THE MANUFACTURER THE CASE OF 48 COMP. GEN. 291 (1968), WE CANNOT DISREGARD THE CRITICAL NEED FOR RELIABILITY IN THE UNIT AS REPORTED BY THE AGENCY. THE SERVICE STATES THAT THE BORDER PATROL AGENTS, WHO WILL USE THE RADIOS, OFTEN WORK ALONE, AFOOT AND IN REMOTE AREAS FOR EXTENDED PERIODS OF TIME. THE AGENT'S CONTACTS WITH THE CRIMINAL ELEMENT ARE FREQUENT, AND FOR THE PAST SEVERAL YEARS ENCOUNTERS INVOLVING PHYSICAL VIOLENCE, INTERCEPTION OF NARCOTIC AND DRUG TRAFFICKERS, AND INJURY AND LOSS OF LIFE TO THE AGENTS HAVE RISEN SHARPLY. IN MANY INSTANCES THE AGENTS' SOLE LINK WITH SOURCES OF ASSISTANCE FOR EMERGENCY PURPOSES AND FOR NORMAL OPERATIONAL PURPOSES IS THE HAND-HELD PORTABLE RADIO. AS THE SERVICE CONTENDS, IT HAS THE RESPONSIBILITY OF PROVIDING THESE AGENTS WITH A COMMUNICATION UNIT SUITABLE FOR THEIR TYPE OF WORK AND WHOSE RELIABILITY IS ESTABLISHED, AND NOT MERELY PREDICTED.

IT IS REPORTED THAT IN VIEW OF THE CRITICAL NATURE OF THE ITEM BEING PROCURED THE SERVICE'S PRIMARY CONCERN IN INSERTING THE QUANTITY-IN-USE EXPERIENCE REQUIREMENT WAS TO OBTAIN AN ITEM OF PROVEN RELIABILITY. BECAUSE THE HIGH DEGREE OF RELIABILITY REQUIRED FOR THE HAND-HELD PORTABLE RADIO SETS IS MUCH MORE CRITICAL THAN SIMILAR REQUIREMENTS UNDER OTHER CIRCUMSTANCES, THE SERVICE CONTENDS, AND WE AGREE, THAT THE PARTICULAR 1- YEAR EXPERIENCE REQUIREMENT DESERVES SPECIAL RECOGNITION AND CONSIDERATION.

ON THE BASIS OF THE FOREGOING CONSIDERATIONS, WE MUST CONCLUDE THAT THE CONTRACTING ACTIVITY'S DETERMINATION THAT AEROTRON'S BID IS NONRESPONSIVE FOR FAILURE TO MEET THE QUANTITY-IN-USE EXPERIENCE PROVISION OF THE ADDITIONAL REQUIREMENTS CLAUSE IS CORRECT.

ACCORDINGLY, YOUR PROTEST IS DENIED.