B-176353, OCT 17, 1972

B-176353, OCT 17, 1972

BID PROTEST - UNREASONABLE SPECIFICATIONS DECISION DENYING THE PROTEST OF AUTO-TROL CORPORATION AGAINST ANY AWARD OF A CONTRACT UNDER AN RFP ISSUED BY THE U. S. FOREST SERVICE FOR THE ACQUISITION OF DIGITIZING SYSTEMS. THE DRAFTING OF SPECIFICATIONS ADEQUATE TO MEET THE NEEDS OF THE GOVERNMENT IS PROPERLY THE FUNCTION OF THE PROCURING AGENCY AND IS NOT SUBJECT TO LEGAL OBJECTION BY GAO UNLESS CLEARLY ARBITRARY. 17 COMP. GEN. 554 (1938). THE FACT THAT A PARTICULAR FIRM MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT IS NOT SUFFICIENT TO WARRANT THE CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. 36 COMP. GEN. 251 (1956).

TO AUTO-TROL CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 21, 1972, AND SUBSEQUENT CORRESPONDENCE PROTESTING AGAINST ANY AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) NO. 4-72, ISSUED BY THE UNITED STATES FOREST SERVICE, DEPARTMENT OF AGRICULTURE.

THE RFP FOR THE ACQUISITION OF THREE DIGITIZING SYSTEMS, WITH OPTION TO PURCHASE UP TO SEVEN ADDITIONAL SYSTEMS, WAS ISSUED ON MAY 9, 1972, WITH THE DATE FOR SUBMISSION OF OFFERS BEING EXTENDED FROM MAY 26, 1972, TO JUNE 2, 1972. FIVE PROPOSALS WERE RECEIVED IN RESPONSE TO THE RFP, BUT ONLY TWO FIRMS, KEUFEL AND ESSER OF MORRISTOWN, NEW JERSEY, AND THE CALMA COMPANY OF SUNNYVALE, CALIFORNIA, WERE FOUND TO HAVE MET ALL OF THE MANDATORY REQUIREMENTS OF THE SOLICITATION. PRIOR TO THE RECEIPT OF YOUR PROTEST, AWARD WAS MADE TO THE CALMA COMPANY WHICH HAD SUBMITTED THE LOWEST PRICE OF ALL THE PROPOSALS RECEIVED.

YOUR PROTEST IS BASED UPON THE REQUIREMENTS OF PARAGRAPHS 110 AND 440.4 OF THE RFP. YOU CONTEND THAT PARAGRAPH 110 IMPOSES UNREASONABLE AND ARBITRARY REQUIREMENTS. THE PARAGRAPH STATES IN PART AS FOLLOWS:

"PROTOTYPE EQUIPMENT WILL NOT BE ACCEPTABLE. THE BIDDER SHALL SUPPLY THE NAMES OF AT LEAST THREE USERS OF SIMILAR EQUIPMENT WHO MAY BE CONSULTED, IF NECESSARY, ABOUT FUNCTIONAL CHARACTERISTICS AND THE RELIABILITY OF THE PROPOSED EQUIPMENT."

YOU CONTEND THAT IT IS UNREASONABLE TO EXPECT MANUFACTURERS TO MEET THIS REQUIREMENT FOR A "NEW STATE OF THE ART PRODUCT." YOU DID FURNISH THE NAMES OF TWO USERS OF WHAT YOU CONSIDERED TO BE SIMILAR EQUIPMENT; HOWEVER, BOTH OF THESE USERS FAILED TO ESTABLISH RELIABILITY OF THE TYPE OF SYSTEM REQUIRED BY THE RFP. SINCE YOU HAD NOT DELIVERED THREE PRODUCTION UNITS AS REQUIRED, YOU OFFERED TO DEMONSTRATE YOUR ABILITY TO DELIVER RELIABLE PRODUCTION EQUIPMENT BY A LIVE DEMONSTRATION OF YOUR PRODUCT. THE RECORD SHOWS THAT YOU WERE ADVISED NOT TO EXPEND MONEY OR EFFORT FOR SUCH A DEMONSTRATION IF YOU STILL COULD NOT MEET THE MANDATORY REQUIREMENTS OF THE RFP.

YOU ALSO OBJECT TO PARAGRAPH 440.4 WHICH STATES THAT:

"THE OFFEROR SHALL HAVE A DISK OPERATING SYSTEM CURRENTLY AVAILABLE FOR LEVEL 3 SYSTEMS."

YOU ARGUE THAT THIS PROVISION UNREASONABLY REQUIRED OFFERORS TO DEMONSTRATE, AT EXTENSIVE COST, A SYSTEM FOR A HYPOTHETICAL REQUIREMENT, WHICH THE GOVERNMENT MIGHT NEVER PURCHASE. YOU FURTHER ARGUE THAT THE DISK OPERATING SYSTEM REQUIRED FOR LEVEL 3 IS MATERIALLY DIFFERENT FROM THE COMPARATIVELY SIMPLE MONITORS REQUIRED FOR LEVELS 1 AND 2; THEREFORE, IT COULD NOT BE AWARDED AS AN OPTION ITEM DURING THE OPTION PERIOD SINCE IT VARIED EXTENSIVELY FROM THE BASE PERIOD ITEMS. ALSO, YOU PROTEST AGAINST THE INTERPRETATION OF PARAGRAPH 440.4 AS MADE BY THE AGENCY'S TECHNICAL ADVISOR.

IT SHOULD BE NOTED THAT THE FOREST SERVICE DID, IN FACT, EXERCISE THE OPTION TO PROCURE A LEVEL 3 SYSTEM AT THE TIME OF AWARD. YOUR COMPANY ALSO CONCEDES THAT IT DID NOT HAVE A CURRENTLY AVAILABLE LEVEL 3 SYSTEM AT THAT TIME AS REQUIRED BY THE RFP.

SINCE ADMITTEDLY YOU WERE UNABLE TO COMPLY WITH THE REQUIREMENTS OF EITHER PARAGRAPH 110 OR PARAGRAPH 440.4, THE ISSUE IS WHETHER THESE REQUIREMENTS WERE AN UNDUE OR UNREASONABLE RESTRICTION ON COMPETITION. IS A WELL ESTABLISHED PRINCIPLE THAT THE DRAFTING OF SPECIFICATIONS ADEQUATE TO MEET THE NEEDS OF THE GOVERNMENT IS PROPERLY THE FUNCTION OF THE PROCURING AGENCY AND NOT SUBJECT TO LEGAL OBJECTION BY OUR OFFICE UNLESS CLEARLY ARBITRARY. 17 COMP. GEN. 554 (1938). IN THIS CONNECTION, WE HAVE HELD THAT THE FACT THAT A PARTICULAR FIRM MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT IS NOT SUFFICIENT TO WARRANT THE CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. COMP. GEN. 251 (1956).

WITH REGARD TO THE NECESSITY FOR THE FIRST REQUIREMENT, IT IS REPORTED THAT THE DIGITING WORKLOAD IS SUCH THAT TIME AND MONEY ARE NOT AVAILABLE FOR DEVELOPMENT AND TESTING OF HARDWARE AND DEBUGGING OF SOFTWARE. ORDER TO DEMONSTRATE RELIABILITY OF THE EQUIPMENT AND SOFTWARE IT WAS CONCLUDED THAT DELIVERY OF AT LEAST THREE PRODUCTION UNITS OF SIMILAR SYSTEMS WAS NECESSARY TO ADEQUATELY ESTABLISH THAT THE OFFERED EQUIPMENT HAS BEEN TRIED AND TESTED AND SOFTWARE HAS BEEN DEBUGGED TO AN ACCEPTABLE LEVEL. CONCERNING THE REQUIREMENT FOR A DISK OPERATING SYSTEM FOR LEVEL 3 SYSTEMS, THE FOREST SERVICE ADVISES THAT AT THE TIME THE RFP WAS ISSUED IT WAS DEFINITELY NEEDED. HOWEVER, IT WAS NOT KNOWN AT THAT TIME WHETHER THERE WOULD BE SUFFICIENT FUNDS AVAILABLE FOR ITS ACQUISITION. THEREFORE, IT WAS INCLUDED AS AN OPTION WITH APPROPRIATE NOTICE TO THIS EFFECT IN PARAGRAPH 2.6 AND FURTHER NOTICE IN PARAGRAPH 115 THAT THE FOREST SERVICE SYSTEM LIFE REQUIREMENTS FOR DIGITIZING SYSTEMS INCLUDED THE NEED FOR EXPANSION FROM LEVELS 1 AND 2 TO LEVEL 3. FURTHERMORE, IT IS REPORTED THAT THE LEVEL 3 SYSTEM IS NOT MATERIALLY DIFFERENT FROM A LEVEL 2 SYSTEM AS THE LEVEL 3 SYSTEM IS COMPRISED OF THE EXISTING LEVEL 2 SYSTEM PLUS ADDITIONAL COMPONENTS WHICH EXPAND THE SYSTEMS CAPABILITIES. IN THIS CONNECTION, IT IS ALSO POINTED OUT THAT PARAGRAPH 140 WAS AMENDED TO PROVIDE THAT THE OFFERORS MUST DEMONSTRATE THAT THEY HAVE AVAILABLE, ON AN OFF-THE-SHELF BASIS, HARDWARE AND SOFTWARE TO MEET THE LEVEL 3 REQUIREMENTS.

WE ARE UNABLE TO CONCLUDE THAT THESE REQUIREMENTS WERE UNDULY RESTRICTIVE. ACCORDINGLY, YOUR PROTEST IS DENIED.