B-199632, MAR 24, 1981

B-199632, MAR 24, 1981

DIGEST: 1. RESPONSIBILITY FOR ESTABLISHMENT OF TESTS AND PROCEDURES NECESSARY TO DETERMINE PRODUCT ACCEPTABILITY IS WITHIN AMBIT OF EXPERTISE OF COGNIZANT TECHNICAL ACTIVITY, AND GAO WILL NOT QUESTION AGENCY'S DECISIONS IN THOSE RESPECTS UNLESS CLEARLY SHOWN TO BE UNREASONABLE. 2. ENFORCEMENT AND INTERPRETATION OF CRIMINAL STATUTES IS CHARGED TO DEPARTMENT OF JUSTICE RATHER THAN GAO. 3. PROTESTER HAS BURDEN OF AFFIRMATIVELY PROVING ITS CASE. BURDEN HAS NOT BEEN MET WHERE, AS HERE, ONLY EVIDENCE IS PROTESTER'S UNSUPPORTED ALLEGATIONS WITHOUT ANY SPECIFIC INFORMATION OR DATA SUBSTANTIATING ITS ASSERTIONS. 4. GAO WILL NOT CONDUCT INVESTIGATIONS PURSUANT TO ITS BID PROTEST PROCEDURES.

TYCO:

TYCO HAS PROTESTED THE ISSUANCE OF REQUEST FOR PROPOSALS (RFP) NO. DLA 400-80-R-2975 BY THE DEFENSE GENERAL SUPPLY CENTER (DGSC), RICHMOND, VIRGINIA, AND THE ANTICIPATED AWARD OF A CONTRACT UNDER THE SUBJECT SOLICITATION.

THE RFP REQUESTED OFFERS FOR 320 INTERRUPTER VIBRATORS FOR USE WITH AIRCRAFT. THE PROCUREMENT ITEM DESCRIPTION (PID) IDENTIFIED THE ITEMS AS NATIONAL STOCK NUMBER (NSN) 6130-00-504-0629, MIDLAND ROSS PART NUMBER (P/N) 12C60-1 OR TYCO P/N 2500-407B. CLAUSE C.16 OF THE RFP REQUIRED FIRMS OFFERING TO SUPPLY ANOTHER MANUFACTURER'S PART TO SHOW THAT THE SUBSTITUTE PART WAS EITHER IDENTICAL TO OR FUNCTIONALLY, PHYSICALLY AND ELECTRICALLY INTERCHANGEABLE WITH THE SPECIFIED ITEMS.

ACCORDING TO TYCO, THE PID IS ALLEGEDLY DEFECTIVE BECAUSE MIDLAND ROSS' ITEM HAS NEVER BEEN PROPERLY TESTED AND QUALIFIED. TYCO ARGUES THAT ITS "REED-TYPE" VIBRATOR IS THE ONLY ITEM WHICH CAN SATISFY THE GOVERNMENT'S MINIMUM NEEDS SINCE MIDLAND ROSS'"SOLID-STATE" DEVICE HAS NEVER BEEN SHOWN TO BE AN ACCEPTABLE EQUAL. IN FACT, TYCO CONTENDS THAT MIDLAND ROSS' CHARACTERIZATION OF THE UNIT AS A "SOLID-STATE VIBRATOR" IS AN ACT OF "DECEPTION" AND THAT ITS DRAWING OF THE ITEM WAS "FRAUDULENTLY PREPARED." SINCE THERE IS NO EVIDENCE ESTABLISHING THE INTERCHANGEABILITY OF THE UNITS, TYCO STATES, THE NSN, BY INCLUDING BOTH UNITS, IS MISLEADING AND INACCURATE. TYCO ALSO CONTENDS THAT MIDLAND ROSS' DRAWING OF THE ITEM CONTAINS AT LEAST EIGHT SIGNIFICANT ERRORS KNOWN TO DGSC SINCE 1978. ADDITION, TYCO ALLEGES THAT PERSONNEL AT THE PROCURING ACTIVITY IMPROPERLY USED AND DISCLOSED TYCO'S TRADE SECRETS AND PROPRIETARY DATA IN VIOLATION OF CERTAIN CRIMINAL STATUTES AND STANDARDS OF CONDUCT AND THAT COUNSEL FOR THE DEFENSE LOGISTICS AGENCY HAS MADE "FALSE STATEMENTS" CONCERNING THE VIBRATORS. FINALLY, THE PROTESTER HAS ALSO ACCUSED OUR OFFICE OF MAKING "FALSE STATEMENTS" AND OF HARBORING "PREJUDICE" TOWARD TYCO AS EVIDENCED BY OUR FAILURE TO HIRE AN OUTSIDE EXPERT AND TO CONDUCT AN INVESTIGATION CONCERNING ITS ALLEGATIONS.

FOR ITS PART, THE AGENCY STATES THAT BOTH THE MIDLAND ROSS AND TYCO UNITS ARE ACCEPTABLE, INTERCHANGEABLE AND PROPERLY CLASSIFIED BY REFERENCE TO THE SAME NSN. WHILE SOME OPERATIONAL PROBLEMS HAVE RECENTLY OCCURRED WITH THE SOLID-STATE UNIT, THE AGENCY STATES, THEY ARE CURRENTLY BEING INVESTIGATED AND WILL BE APPROPRIATELY RESOLVED. CONCERNING TYCO'S ALLEGATIONS IN GENERAL, THE AGENCY POINTS OUT THAT TYCO HAS TOTALLY FAILED TO FURNISH ANY SPECIFIC INFORMATION SUBSTANTIATING ITS ALLEGATION OF DEFECTS IN THE PID. WE AGREE.

WITH REGARD TO THE QUALIFICATION OF MIDLAND ROSS' UNIT, OUR OFFICE HAS CONSISTENTLY HELD THAT THE RESPONSIBILITY FOR THE ESTABLISHMENT OF TESTS AND PROCEDURES NECESSARY TO DETERMINE PRODUCT ACCEPTABILITY IS WITHIN THE AMBIT OF THE EXPERTISE OF THE COGNIZANT TECHNICAL ACTIVITY. AERONAUTICAL INSTRUMENT AND RADIO COMPANY, B-190920, OCTOBER 13, 1978, 78-2 CPD 276. IN THIS REGARD, THE DETERMINATION OF THE GOVERNMENT'S MINIMUM NEEDS, THE METHOD OF ACCOMMODATING THEM AND THE TECHNICAL JUDGMENTS UPON WHICH THOSE DETERMINATIONS ARE BASED, ARE PRIMARILY THE RESPONSIBILITY OF THE CONTRACTING OFFICIALS, WHO ARE MOST FAMILIAR WITH THE CONDITIONS UNDER WHICH THE SUPPLIES AND SERVICES HAVE BEEN USED OR ARE TO BE USED. ON-LINE SYSTEMS, INC., B-193126, MARCH 28, 1979, 79-1 CPD 208; METIS CORPORATION, 54 COMP.GEN. 612 (1975), 75-1 CPD 44. THEREFORE, OUR OFFICE WILL NOT QUESTION AGENCY DECISIONS IN THOSE RESPECTS UNLESS CLEARLY SHOWN TO BE UNREASONABLE. PARTICLE DATA, INC., B-179762, B-178718, MAY 15, 1974, 74-1 CPD 257. TYCO HAS MADE NO SUCH SHOWING.

CONCERNING TYCO'S ALLEGATIONS OF CRIMINAL CONDUCT BY FEDERAL EMPLOYEES, THE ENFORCEMENT AND INTERPRETATION OF CRIMINAL STATUTES IS CHARGED TO THE DEPARTMENT OF JUSTICE, RATHER THAN OUR OFFICE. POLITE MAINTENANCE, INC., B-194669, MAY 10, 1979, 79-1 CPD 335; TYCO, B-194763, B-195072, AUGUST 16, 1979, 79-2 CPD 126. ANY SPECIFIC INFORMATION TYCO HAS CONCERNING THE ALLEGED ACTIONS SHOULD BE REFERRED TO THAT AGENCY.

WITH RESPECT TO THE ALLEGED DEFECTS IN THE PID, THE PROTESTER HAS THE BURDEN OF AFFIRMATIVELY PROVING ITS CASE. RELIABLE MAINTENANCE SERVICE, INC., - REQUEST FOR RECONSIDERATION, B-185103, MAY 24, 1976, 76-1 CPD 337. EXCEPT FOR TYCO'S GENERAL UNSUPPORTED ALLEGATIONS, THE RECORD IS COMPLETELY DEVOID OF INFORMATION OR OTHER DATA TO SUBSTANTIATE TYCO'S ASSERTIONS. INDEED, THE PROTESTER HAS, IN EFFECT, CONCEDED THE ABSENCE OF SUCH EVIDENCE BY STATING THAT IT WILL ONLY REVEAL PERTINENT INFORMATION "IN A COURT OF LAW, BEFORE CONGRESS, AND ONLY THEN 'IN CAMERA.'" THEREFORE, UNDER THE CIRCUMSTANCES, IT IS OUR VIEW THAT THE PROTESTER HAS NOT MET ITS BURDEN OF PROOF. WITH REGARD TO TYCO'S REQUEST FOR AN INVESTIGATION, IT IS NOT OUR FUNCTION TO CONDUCT INVESTIGATIONS PURSUANT TO OUR BID PROTEST PROCEDURES. SHELDON G. KALL, B-199120, SEPTEMBER 23, 1980, 80-2 CPD 221.

ACCORDINGLY, THE PROTEST IS DENIED IN PART AND DISMISSED IN PART.