B-184057, NOV 18, 1975

B-184057: Nov 18, 1975

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AGENCY DETERMINATION THAT SECOND LOW BIDDER'S PRODUCT COMPLIED WITH SPECIFICATION REQUIREMENT WILL NOT BE DISTURBED WHERE DETERMINATION INVOLVED TECHNICAL JUDGMENT AND GAO IS UNABLE TO CONCLUDE AGENCY'S ACTION WAS RESULT OF ABUSE OF DISCRETION. 2. PORTION OF PROTEST IN WHICH IT IS CONTENDED THAT ANOTHER BIDDER INADEQUATELY PERFORMED PREVIOUS CONTRACT AND THEREFORE LACKED THE ABILITY TO PERFORM PRESENT CONTRACT IS DISMISSED SINCE ALLEGATIONS IN ESSENCE QUESTION RESPONSIBILITY OF PROSPECTIVE CONTRACTOR AND GAO DOES NOT REVIEW PROTESTS AGAINST AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY UNLESS EITHER FRAUD IS ALLEGED ON THE PART OF PROCURING OFFICIALS OR WHERE SOLICITATION CONTAINS DEFINITIVE RESPONSIBILITY CRITERIA WHICH ALLEGEDLY HAVE NOT BEEN APPLIED. 3.

B-184057, NOV 18, 1975

1. AGENCY DETERMINATION THAT SECOND LOW BIDDER'S PRODUCT COMPLIED WITH SPECIFICATION REQUIREMENT WILL NOT BE DISTURBED WHERE DETERMINATION INVOLVED TECHNICAL JUDGMENT AND GAO IS UNABLE TO CONCLUDE AGENCY'S ACTION WAS RESULT OF ABUSE OF DISCRETION. 2. PORTION OF PROTEST IN WHICH IT IS CONTENDED THAT ANOTHER BIDDER INADEQUATELY PERFORMED PREVIOUS CONTRACT AND THEREFORE LACKED THE ABILITY TO PERFORM PRESENT CONTRACT IS DISMISSED SINCE ALLEGATIONS IN ESSENCE QUESTION RESPONSIBILITY OF PROSPECTIVE CONTRACTOR AND GAO DOES NOT REVIEW PROTESTS AGAINST AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY UNLESS EITHER FRAUD IS ALLEGED ON THE PART OF PROCURING OFFICIALS OR WHERE SOLICITATION CONTAINS DEFINITIVE RESPONSIBILITY CRITERIA WHICH ALLEGEDLY HAVE NOT BEEN APPLIED. 3. RECOMMENDATION IS MADE THAT IN FUTURE PROCUREMENTS, REQUIREMENT FOR DATA WHICH IS DESCRIPTIVE OF THE PRODUCT OFFERED BE OBTAINED THROUGH A "REQUIREMENT FOR DESCRIPTIVE LITERATURE" CLAUSE AND REQUESTED DATA RELATING TO BIDDER RESPONSIBILITY CLEARLY BE SO IDENTIFIED, SO AS TO ELIMINATE CONFUSION AS TO WHEN FAILURE TO SUBMIT DATA RENDERS BID NONRESPONSIVE.

ROLYAN MANUFACTURING COMPANY:

ROLYAN MANUFACTURING COMPANY (ROLYAN) HAS PROTESTED THE PROSPECTIVE AWARD OF A CONTRACT TO PRECISION RUBBER AND PLASTICS, INC., FOR THE SUPPLY OF BUOYS PURSUANT TO IFB NO. DACW56-75-B-0050, ISSUED BY THE TULSA DISTRICT, CORPS OF ENGINEERS. UPON REJECTION OF THE APPARENT LOW BIDDER AS NONRESPONSIVE, PRECISION WAS CONSIDERED FOR AWARD AS TO ITEMS 1-8 ON WHICH IT SUBMITTED THE SECOND LOW BID. ROLYAN, WHICH SUBMITTED THE THIRD LOW BID ON THOSE ITEMS, CONTENDS THAT PRECISION'S BID SHOULD BE REJECTED.

THE SOLICITATION CONTAINED A "REQUIREMENT FOR DESCRIPTIVE LITERATURE" CLAUSE WHICH REQUIRED DOCUMENTATION FROM BIDDERS ONLY IF THEY PROPOSED AN ALTERNATE MATERIAL TO AN ABS PLASTIC SHELL AS PERMITTED BY PARAGRAPH 5-1.3 OF THE SPECIFICATIONS. THERE IS NO INDICATION IN THE RECORD THAT ANY BIDDER PROPOSED THE USE OF AN ALTERNATE MATERIAL THUS ELIMINATING THE DESCRIPTIVE LITERATURE CLAUSE AS A FACTOR IN THE EVALUATION OF BIDS.

THE IFB SPECIFICATIONS IMPOSED A GENERAL REQUIREMENT THAT "THE ARTICLES TO BE FURNISHED HEREUNDER SHALL BE THE PRODUCTS OF A MANUFACTURER REGULARLY ENGAGED IN THE MANUFACTURE OF THE TYPE ARTICLES SPECIFIED FOR GENERAL SALE TO THE PUBLIC."

THE CAN AND NUN BUOYS WITH WHICH THIS PROTEST IS CONCERNED WERE ALSO DESCRIBED IN DETAIL IN THE SPECIFICATIONS, WHICH PRESCRIBED THEIR GENERAL SHAPE, MINIMUM SIZE, MAXIMUM WEIGHT, COLOR AND MARKINGS, SHELL AND FLOTATION MATERIALS, METHOD OF CONSTRUCTION, FINISH AND REQUIRED STABILITY. THE SPECIFICATIONS THEN CONTAINED SEVERAL PROVISIONS RELATING TO THE SUBMISSION OF SAMPLES TESTING, INSPECTION AND ACCEPTANCE. THE CONTRACTOR WAS REQUIRED TO SUBMIT ONE SAMPLE OF EACH BUOY SHORTLY AFTER AWARD FOR DESTRUCTIVE TESTING BY THE GOVERNMENT. IN ADDITION, THE GOVERNMENT RESERVED THE RIGHT TO REQUIRE THE CONTRACTOR TO CONDUCT CERTAIN TESTS UPON RANDOMLY-SELECTED BUOYS FROM ITS PRODUCTION PRIOR TO ACCEPTANCE OF THE SHIPMENT BY THE GOVERNMENT.

THE FINAL PARAGRAPH OF THE SPECIFICATIONS WAS AS FOLLOWS:

"10. BIDDER QUALIFICATION: THE SUCCESSFUL BIDDER OR BIDDERS SHALL BE REQUIRED TO FURNISH THE FOLLOWING INFORMATION PRIOR TO AWARD:

"10-1. COMPLETE CONSTRUCTION DRAWINGS OF THE BUOYS TO BE FURNISHED.

"10-2. DESIGN CALCULATIONS SHOWING COMPLIANCE WITH PARAGRAPH 6-2.3 (STABILITY REQUIREMENT). THE CALCULATIONS MUST INCLUDE SEPARATE COMPUTATIONS OF THE ANGLE OF LIST WHICH WILL BE EXPERIENCED FOR EACH OF THE THREE CONDITIONS STATED IN PARAGRAPH 6-2.3.

"10-3. A DESCRIPTION OF THE TESTING FACILITIES AND METHODS TO BE USED TO SATISFY THE REQUIREMENTS OF PARAGRAPH 8-1.

"10-4. THE DATA REQUIRED BY PARAGRAPH 5-1.3, IF APPLICABLE (SUBSTITUTION OF ANOTHER SHELL MATERIAL FOR ABS PLASTIC).

"10-5. TWO COLOR PHOTOGRAPHS OF SIMILAR BUOYS PREVIOUSLY PRODUCED BY THE BIDDER."

IT IS CLEAR FROM OUR READING OF THESE SPECIFICATIONS THAT ALTHOUGH THE CORPS OF ENGINEERS KNEW WITH SOME PRECISION THE TYPE OF BUOY IT NEEDED, IT WANTED ASSURANCE THAT THE BUOYS WOULD BE OF A WORKABLE DESIGN CONCEIVED BY AN EXPERIENCED AND KNOWLEDGEABLE MANUFACTURER. IN SEEKING THIS ASSURANCE THROUGH ITS "SPECIFICATIONS FOR BUOYS", HOWEVER, THE CORPS HAS CREATED A SITUATION IN WHICH FACTORS RELATING TO A BIDDER'S RESPONSBIILITY HAVE BEEN REGARDED AS GOING TO BID RESPONSIVENESS. OUR REVIEW OF THE RECORD SHOWS THAT THE AGENCY AND THE PROTESTER HAVE TAKEN THE POSITION THAT BIDS WERE "NONRESPONSIVE" FOR REASONS WHICH CONCERN BIDDERS' ABILITY TO PERFORM THE CONTRACT, WHICH ARE MATTERS OF RESPONSIBILITY. THE DISTINCTION IS AN IMPORTANT ONE, FOR WHILE THE RESPONSIVENESS OF A BID MUST BE JUDGED BY THE CONTENTS OF THE BID AT THE TIME OF BID OPENING, QUESTIONS OF RESPONSIBILITY MAY BE RESOLVED AT ANY TIME PRIOR TO AWARD.

IN SUPPORT OF ITS CONTENTION THAT THE SECOND LOW BID OF PRECISION SHOULD BE REJECTED, ROLYAN FIRST CONTENDS THAT PRECISION'S BUOYS DO NOT MEET SPECIFICATION PARAGRAPH 5-5.2 IN THAT THE STRESS OF THE COUNTER WEIGHT ASSEMBLY IS NOT SPREAD OVER AT LEAST 25 PERCENT OF THE AREA OF THE FLOAT SECTION OF THE BUOY. ROLYAN APPARENTLY BASES THIS CONTENTION UPON AN EXAMINATION OF BUOYS PREVIOUSLY SUPPLIED BY PRECISION TO THE GOVERNMENT AND OF CONSTRUCTION DRAWINGS SUBMITTED WITH PRECISION'S BID, AS REQUIRED BY SUBPARAGRAPH 10-1 OF THE SPECIFICATIONS.

THE CONTRACTING OFFICER HAS STATED IN HIS REPORT TO OUR OFFICE THAT, BASED UPON HIS REVIEW OF THE DRAWINGS SUBMITTED WITH PRECISION'S BID, THE FIRM'S BUOYS MEET THE REQUIREMENT OF PARAGRAPH 5-5.2 OF THE SPECIFICATIONS. PRECISION HAS ALSO SUBMITTED A LETTER FROM ITS CONSULTING ENGINEER WHO CONCLUDES THAT THE BUOY EXCEEDS SPECIFICATION REQUIREMENTS BECAUSE "THE STRESS ON THE BOTTOM OF THE FLOAT SECTION IS DISTRIBUTED OVER 100% OF THE BOTTOM OF THE 24 INCH CYLINDER."

THE DIFFERENCE IN OPINION AS TO WHETHER PRECISION'S PRODUCTS MEET THIS SPECIFICATION REQUIREMENT IS OF A TECHNICAL NATURE. IT IS OUR CONSISTENT AND WELL ESTABLISHED POSITION THAT THE DETERMINATION OF WHETHER A GIVEN ITEM OR SYSTEM CONFORMS TO SPECIFICATIONS IS PRIMARILY THE RESPONSIBILITY OF THE CONTRACTING AGENCY. ACCORDINGLY, THIS OFFICE WILL OVERTURN TECHNICAL DETERMINATIONS OF THIS NATURE ONLY WHERE A CLEAR ABUSE OF THE DISCRETION RESERVED TO THE CONTRACTING OFFICER IS SHOWN. DATA 100 CORPORATION, B-182397, FEBRUARY 12, 1975, 75-1 CPD 89 AT 2. BASED ON THE RECORD BEFORE US, WE CANNOT CONCLUDE THAT AN ABUSE OF DISCRETION HAS OCCURRED. ROLYAN'S SECOND THROUGH FOURTH CONTENTIONS ARE AS FOLLOWS:

"2. PARAGRAPH 5-4.1 STATES THAT BUOYS SUPPLIED SHALL BE 100% FILLED WITH POLYURETHANE FOAM. ON EVERY BUOY I PERSONALLY INSPECTED AT KERR RESERVOIR, OUTSIDE TULSA, THERE WERE LARGE VOIDS AND GAPS IN THE FOAM. THESE BUOYS WERE SUPPLIED ON A PREVIOUS CONTRACT REQUIRING THE SAME COMPLETELY FOAM FILLED BUOYS. WE ARE NOT ANXIOUS TO ALLOW THIS SAME SLOPPY WORKMANSHIP ON THIS CONTRACT.

"3. PARAGRAPH 8-1.1.3 STATES A 150# LOAD SHALL BE PLACED ON THE COUNTERWEIGHT WITH NO PERMANENT DISTORTION. EVERY BUOY I PERSONALLY TESTED FAILED THIS TEST.

"4. THE MOORING AND ATTACHMENT EYE STRUCTURES ARE WEAK AND POORLY ENGINEERED. THEY WILL FAIL IN LONG TERM SERVICE."

THE THRUST OF THESE CONTENTIONS IS THAT PRECISION'S PAST PERFORMANCE HAS BEEN UNSATISFACTORY AND THAT IT IS THEREFORE LIKELY TO UNSATISFACTORILY PERFORM THE INSTANT CONTRACT.

PRECISION'S PERFORMANCE UNDER A PREVIOUS CONTRACT FOR THE SAME OR SIMILAR PRODUCT RELATES TO THAT BIDDER'S QUALIFICATIONS AS A RESPONSIBILE PROSPECTIVE CONTRACTOR. SEE BOW INDUSTRIES, INC., B 181828, DECEMBER 12, 1974, 74-2 CPD 330. THIS OFFICE DOES NOT REVIEW PROTESTS AGAINST AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY, UNLESS EITHER FRAUD IS ALLEGED ON THE PART OF PROCURING OFFICIALS OR THE SOLICITATION CONTAINS DEFINITIVE RESPONSIBILITY CRITERIA WHICH ALLEGEDLY HAVE NOT BEEN APPLIED. SEE CENTRAL METAL PRODUCTS, INC., 54 COMP. GEN. 66 (1974), 74-2 CPD 64. AFFIRMATIVE DETERMINATIONS ARE BASED IN LARGE MEASURE ON SUBJECTIVE JUDGMENTS WHICH ARE LARGELY WITHIN THE DISCRETION OF PROCURING OFFICIALS WHO MUST SUFFER ANY DIFFICULTIES EXPERIENCED BY REASON OF A CONTRACTOR'S INABILITY TO PERFORM. HOWEVER, WE WILL CONTINUE TO CONSIDER PROTESTS AGAINST DETERMINATIONS OF NONRESPONSIBILITY TO PROVIDE ASSURANCE AGAINST THE ARBITRARY REJECTION OF BIDS. MECHANICAL CONTRACTORS ASSOCIATION OF CENTRAL OHIO, INC., B 184491, AUGUST 4, 1975, 75-2 CPD 80.

SINCE NEITHER FRAUD NOR MISAPPLICATION OF DEFINITIVE RESPONSIBILITY STANDARDS HAVE BEEN ALLEGED OR DEMONSTRATED, WE MUST DECLINE TO CONSIDER THIS ASPECT OF ROLYAN'S PROTEST.

FINALLY, ROLYAN ARGUES:

"5. AS FAR AS I AM ABLE TO DETERMINE NO CALCULATIONS WERE SUBMITTED TO PROVE OPERATIONAL REQUIREMENTS AS SPECIFIED IN PARAGRAPH 6. BY PRECISION RUBBER CO."

PARAGRAPH 6 OF THE SPECIFICATIONS, REFERRED TO BY ROLYAN, REQUIRED THE BUOYS TO BE STABLE UNDER CERTAIN WIND AND CURRENT CONDITIONS. UNDER SUBPARAGRAPH 10-2 OF THE SPECIFICATIONS, BIDDERS WERE REQUIRED TO SUBMIT CALCULATIONS DEMONSTRATING THAT THEIR BUOYS MET THESE STABILITY REQUIREMENTS. ALTHOUGH THE PROTESTER MAY NOT HAVE BEEN AWARE OF WHETHER PRECISION SUBMITTED THESE CALCULATIONS, THEY CLEARLY APPEAR ON THE COPY OF THAT FIRM'S BID FURNISHED US BY THE CORPS OF ENGINEERS, WHICH DETERMINED THAT THE CALCULATIONS SHOWED THE BUOY WAS SUFFICIENTLY STABLE.

FOR THE REASONS STATED ABOVE, WE CONCLUDE THAT ROLYAN'S PROTEST IS WITHOUT MERIT AND IT IS THEREFORE DENIED. HOWEVER, BY SEPARATE LETTER OF TODAY, WE ARE SUGGESTING TO THE PROCURING AGENCY THAT IN FUTURE SIMILAR PROCUREMENTS, IT MAY WISH TO RESTRUCTURE THE CONTENTS OF PARAGRAPH 10 OF THE SPECIFICATIONS, QUOTED ABOVE.

PARAGRAPH 10 IS ENTITLED "BIDDER QUALIFICATION" AND STATES THAT THE "SUCCESSFUL BIDDER OR BIDDERS" SHALL BE REQUIRED TO FURNISH CERTAIN INFORMATION "PRIOR TO AWARD." THE IMPLICATION OF THIS LANGUAGE IS THAT PARAGRAPH 10 IS CONCERNED WITH THE RESPONSIBILITY OF THOSE BIDDERS OTHERWISE ELIGIBLE FOR AWARD. HOWEVER, THE DATA REQUIRED BY SUBPARAGRAPHS 10-1, 10-2, 10-4 AND 10-5 REASONABLY MAY BE READ AS NECESSARY FOR A DETERMINATION AS TO WHETHER A BIDDER'S PRODUCT MET THE SPECIFICATION REQUIREMENTS (RESPONSIVENESS) RATHER THAN TO THE BIDDER'S ABILITY TO SUCCESSFULLY PERFORM THE CONTRACT (RESPONSIBILITY). ONLY SUBPARAGRAPH 10- 3, REGARDING THE ADEQUACY OF A BIDDER'S TESTING FACILITIES AND METHODS, CLEARLY APPEARS RELATED TO RESPONSIBILITY.

OUR REVIEW OF THE RECORD SHOWS THAT SOME CONFUSION EXISTS AS TO WHETHER THE DOCUMENTATION REQUIREMENTS OF PARAGRAPH 10 RELATE TO RESPONSIVENESS OR RESPONSIBILITY. IN ADDITION, THE BIDDERS' RESPONSE TO PARAGRAPH 10 WAS INCONSISTENT, FOR ALTHOUGH BIDDERS GENERALLY COMPLIED WITH THE DOCUMENTATION REQUREMENTS OF SUBPARAGRAPHS 10-1 AND 10-2, THEY GENERALLY IGNORED SUBPARAGRAPHS 10-3 AND 10-5.

WE BELIEVE THAT IN FUTURE SIMILAR SOLICITATIONS, THE "REQUIREMENT FOR DESCRIPTIVE LITERATURE" CLAUSE SHOULD BE THE VEHICLE FOR SOLICITING DATA FROM BIDDERS CONCERNING THE CHARACTERISTICS OF THEIR PRODUCTS, AND THAT DATA RELATING TO BIDDERS' RESPONSIBILITY BE CLEARLY SO IDENTIFIED.