B-176215, AUG 21, 1972

B-176215: Aug 21, 1972

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THE PROTEST IS DENIED. OFFERORS WERE REQUESTED TO SUBMIT THEIR PROPOSALS ON THE BASIS OF SUPPLYING A THERMO KING CORPORATION P/N M9XE708C OR EQUAL. IT WOULD BE MANDATORY THAT THE OFFEROR FURNISH WITH ITS PROPOSAL DRAWINGS AND OTHER DATA CLEARLY AND SUFFICIENTLY DESCRIBING THE PRODUCT SO THAT THE GOVERNMENT COULD DETERMINE WHETHER THE PRODUCT OFFERED WAS IN FACT EQUAL TO THE THERMO KING PART CITED. THE PROPOSAL DID NOT INCLUDE ANY OF THE DATA OR DRAWINGS NECESSARY FOR A DETERMINATION BY THE CONTRACTING ACTIVITY THAT THE TYCO PRODUCT WAS EQUAL TO THE THERMO KING PART. TYCO STATED THAT IT WOULD WILLINGLY DISPLAY ITS DRAWINGS AND DATA TO ANY ENGINEERING ACTIVITY THE CONTRACTING ACTIVITY MIGHT CHOOSE AS LONG AS THAT ACTIVITY WAS OUTSIDE OF THE DEFENSE GENERAL SUPPLY CENTER.

B-176215, AUG 21, 1972

BID PROTEST - REQUIRED DOCUMENTATION - TECHNICAL EVALUATION DENIAL OF PROTEST BY TYCO, INC., AGAINST THE AWARD OF A CONTRACT TO ANY OTHER OFFEROR UNDER AN RFP ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VA. SINCE THE RFP SPECIFICALLY REQUIRED BIDDERS OFFERING "EQUAL" PRODUCTS TO SUPPLY THE NECESSARY DRAWINGS AND DATA FOR A TECHNICAL EVALUATION, AND SINCE TYCO HAS REFUSED TO SUPPLY THE REQUESTED INFORMATION, GAO MUST CONCUR WITH THE CONTRACTING OFFICER'S DETERMINATION NOT TO CONSIDER THE TYCO BID. ACCORDINGLY, THE PROTEST IS DENIED.

TO TYCO:

WE REFER TO YOUR LETTERS OF JUNE 7 AND JULY 31, 1972, PROTESTING AGAINST AWARD OF A CONTRACT TO ANY OFFEROR OTHER THAN TYCO UNDER REQUEST FOR PROPOSALS (RFP) NO. DSA 400-72-R-7875 ISSUED BY THE DEFENSE SUPPLY AGENCY, DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA.

THIS NEGOTIATED PROCUREMENT COVERS THE PURCHASE OF 20 CONTROL BOX ASSEMBLIES, FSN 4130-590-1359. OFFERORS WERE REQUESTED TO SUBMIT THEIR PROPOSALS ON THE BASIS OF SUPPLYING A THERMO KING CORPORATION P/N M9XE708C OR EQUAL. THE RFP PROVIDES THAT SHOULD AN EQUAL PRODUCT BE OFFERED, IT WOULD BE MANDATORY THAT THE OFFEROR FURNISH WITH ITS PROPOSAL DRAWINGS AND OTHER DATA CLEARLY AND SUFFICIENTLY DESCRIBING THE PRODUCT SO THAT THE GOVERNMENT COULD DETERMINE WHETHER THE PRODUCT OFFERED WAS IN FACT EQUAL TO THE THERMO KING PART CITED. THE RFP FURTHER ADVISES THAT FAILURE TO FURNISH COMPLETE DATA AND INFORMATION MIGHT PRECLUDE CONSIDERATION OF A PROPOSAL.

IN THE PROPOSAL SUBMITTED BY TYCO, YOU OFFERED TO SUPPLY TYCO PART NO. 2500-267C. HOWEVER, THE PROPOSAL DID NOT INCLUDE ANY OF THE DATA OR DRAWINGS NECESSARY FOR A DETERMINATION BY THE CONTRACTING ACTIVITY THAT THE TYCO PRODUCT WAS EQUAL TO THE THERMO KING PART. INSTEAD, IN THE LETTER TRANSMITTING THE OFFER, TYCO STATED THAT IT WOULD WILLINGLY DISPLAY ITS DRAWINGS AND DATA TO ANY ENGINEERING ACTIVITY THE CONTRACTING ACTIVITY MIGHT CHOOSE AS LONG AS THAT ACTIVITY WAS OUTSIDE OF THE DEFENSE GENERAL SUPPLY CENTER. IT WAS FURTHER STATED THAT, IN VIEW OF THIS OFFER, TYCO WAS NOT REFUSING TO SUPPLY THE MANDATORY DATA, BUT RATHER WAS ATTEMPTING TO PROTECT IT FROM ANY IMPROPER USE BY THE CONTRACTING ACTIVITY. DESPITE THE INITIAL REFUSAL TO FURNISH THE DATA, THE CONTRACTING OFFICER MADE REPEATED REQUESTS TO TYCO TO ENCOURAGE IT TO SUBMIT THE INFORMATION TO THE CONTRACTING ACTIVITY, BUT TYCO WAS ADAMANT IN ITS POSITION.

BECAUSE THE RFP EXPLICITLY REQUIRES THAT THIS INFORMATION BE SUBMITTED TO THE CONTRACTING ACTIVITY ALONG WITH THE PROPOSAL AND BECAUSE OF THE WELL- ESTABLISHED RULE OF OUR OFFICE THAT IT IS THE RESPONSIBILITY OF THE CONTRACTING ACTIVITY TO DETERMINE ITS MINIMUM NEEDS AND WHETHER AN ITEM OFFERED WILL MEET THESE NEEDS, SEE 44 COMP. GEN. 302, 304-305 (1964), WE MUST CONCUR WITH THE CONTRACTING OFFICER'S DETERMINATION THAT THE TYCO PROPOSAL SHOULD NOT BE CONSIDERED BECAUSE OF TYCO'S FAILURE TO SUBMIT THE DRAWINGS AND DATA NECESSARY TO A DETERMINATION THAT ITS PRODUCT WAS EQUAL TO THE THERMO KING PART CITED. WE DO NOT BELIEVE THAT THE PROCUREMENT FUNCTION SHOULD BE IMPEDED BY THE METHOD OF TECHNICAL EVALUATION PROPOSED BY YOU. WE SEE NO BASIS FOR OBJECTING TO THE AGENCY'S POSITION THAT SUPPORTING "OR EQUAL" DOCUMENTATION BE INCLUDED WITH, AND MADE A PART OF, THE PROPOSAL SUBMISSION. TO HOLD OTHERWISE WOULD BE DISRUPTIVE OF THE PROCUREMENT FUNCTION AND WOULD IMPOSE AN UNREASONABLE BURDEN UPON THE CONTRACTING ACTIVITY.

ACCORDINGLY, THE PROTEST IS DENIED.