B-218768, AUG 20, 1985, 85-2 CPD 197

B-218768, AUG 20, 1985, 85-2 CPD 197

CONTRACTS - REQUESTS FOR QUOTATIONS - AWARD BASIS - LOWEST AGGREGATE PRICE - PROPRIETY DIGEST: 1. WHERE TWO FIRMS SUBMIT QUOTATIONS WITH DIFFERENT PROPOSED DELIVERY SCHEDULES, EITHER OF WHICH WOULD SATISFY THE DELIVERY REQUIREMENTS OF AN ORAL REQUEST FOR QUOTATIONS, THE AGENCY PROPERLY ACCEPTED THE LOWER QUOTATION. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE FUNCTION - FREE AND FULL COMPETITION OBJECTIVE 2. AN OFFEROR'S ECONOMIC INTEREST IN ESTABLISHING ITSELF AS A SOLE SOURCE SUPPLIER IS NOT A PROTECTABLE INTEREST IN A GAO BID PROTEST. CONTRACTS - REQUESTS FOR QUOTATIONS - SPECIFICATIONS - MINIMUM NEEDS REQUIREMENT - ADMINISTRATIVE DETERMINATION - REASONABLENESS 3. GAO WILL NOT DISTURB A PROCURING AGENCY'S DETERMINATION OF ITS NEEDS AND THE SPECIFICATIONS NECESSARY TO MEET THEM, OR THE AGENCY'S TECHNICAL EVALUATION OF PROPOSED EQUIPMENT, ABSENT A CLEAR SHOWING BY THE PROTESTER THAT THE AGENCY HAS ACTED UNREASONABLY.

DORNE & MARGOLIN INC:

DORNE & MARGOLIN INC., PROTESTS THE AWARD OF CONTRACT NO. DLA900-85 C- 1635 TO STARWIN INDUSTRIES BY THE DEFENSE LOGISTICS AGENCY, DEFENSE ELECTRONICS SUPPLY CENTER (DESC). DORNE & MARGOLIN CONTENDS THAT THE PROCUREMENT, UNDER A VERBAL REQUEST FOR QUOTATIONS, WAS CONDUCTED UNFAIRLY BECAUSE INDIVIDUAL QUOTERS WERE NOT TREATED EQUALLY IN THE QUOTATION PROCESS.

WE DENY THE PROTEST.

THE CONTRACT CONCERNS THE PURCHASE OF FIBER GLASS MAST SECTIONS FOR PORTABLE ANTENNAS WHICH ARE USED BY MILITARY COMBAT TROOPS TO 25, 1985. FACILITATE TACTICAL FIELD COMMUNICATIONS. DESC DESCRIBES THE COMPONENT PART AS A HOLLOW FIBERGLASS TUBE FILLED WITH POLYURETHANE FOAM WITH AN ALUMINUM CONNECTOR AT ONE END TO ALLOW ATTACHMENT TO METALIC SECTIONS OF THE MAST AND ANTENNA. THE PURPOSE OF THE FIBERGLASS SECTION IS TO INSULATE THE ANTENNA ELEMENT FROM THE MAST'S ALUMINUM SUPPORT TUBES, THEREBY PREVENTING SIGNALS THAT ARE TRANSMITTED SUPPORT TUBES, THEREBY PREVENTING SIGNALS THAT ARE TRANSMITTED OR OR RECEIVED THROUGH THE ANTENNA FROM BEING SHORTED TO THE GROUND. ALTHOUGH THE AGENCY CHARACTERIZES THE MAST SECTION AS A SIMPLE, NONCOMPLEX COMPONENT, IT STATES THAT THE GOVERNMENT DOES NOT HAVE DETAILED SPECIFICATIONS AND DRAWINGS WHICH WOULD PERMIT ITS SOLICITATION UNDER ADVERTISED PROCEDURES.

IN FEBRUARY 1985, DESC RECEIVED AN URGENT PURCHASE REQUEST FOR 176 OF THE MAST SECTIONS FROM ITS DIRECTORATE OF SUPPLY OPERATIONS, THE ORGANIZATION RESPONSIBLE FOR PROCESSING REQUISITIONS FROM MILITARY USERS OF DESC- MANAGED ITEMS. THE PURCHASE REQUEST INDICATED THAT THE CURRENT SUPPLY OF THIS ITEM WAS CRITICALLY LOW AND THAT EXPEDITED PROCUREMENT PROCEDURES SHOULD BE USED IN ORDER TO ALLEVIATE THE SHORTAGE OF MAST SECTIONS. DESC PROCUREMENT PERSONNEL AGREED THAT ROUTINE PROCEDURES, INCLUDING THE ISSUANCE OF A REQUEST FOR PROPOSALS AND EVENTUAL AWARD OF CONTRACT, WOULD BE INAPPROPRIATE UNDER THESE CIRCUMSTANCES.

DESC SOLICITED QUOTATIONS FROM TWO FIRMS, DORNE & MARGOLIN AND DAYTON GRANGER; OF THESE TWO ONLY DORNE & MARGOLIN RESPONDED WITH A QUOTE. ADDITION, STARWIN INDUSTRIES SUBMITTED AN UNSOLICITED QUOTATION WHICH COMPLIED WITH ALL OF THE BASIC TERMS OF THE ORAL SOLICITATION.

ACCORDING TO DESC'S REPORT, THE PRICE SUBMITTED BY STARWIN WAS LOWEST, AND ITS DELIVERY TERMS MOST FAVORABLE. THE SOLICITATION REQUIRED DELIVERY OF 100 MAST SECTION UNITS WITHIN 90 DAYS AFTER THE EFFECTIVE DATE OF THE CONTRACT AND AN ADDITIONAL 10 UNITS EVERY 30 DAYS THEREAFTER UNTIL COMPLETION. DORNE & MARGOLIN OFFERED TO SUPPLY 125 UNITS WITHIN 30 DAYS, WITH THE REMAINING UNITS TO BE FURNISHED WITHIN 120 DAYS AFTER THE EFFECTIVE DATE OF THE CONTRACT. STARWIN OFFERED TO FURNISH THE ENTIRE QUANTITY WITHIN 90 DAYS. THE PROTESTER CONTENDS THAT BECAUSE DESC CITED THE URGENCY OF THE REQUIREMENT AS ONE BASIS FOR AWARD, AWARD SHOULD HAVE BEEN MADE TO DORNE & MARGOLIN, SINCE THIS FIRM PROMISED AN INITIAL, PARTIAL DELIVERY WITHIN 30 DAYS. HOWEVER, SINCE EITHER FIRM'S PROPOSED DELIVERY SCHEDULE WOULD SATISFY THE REQUIREMENTS STATED BY DESC, WE HAVE NO BASIS FOR OBJECTING TO DESC'S AWARD TO THE LOW QUOTER ON THIS BASIS.

DORNE & MARGOLIN FURTHER PROTESTS THAT IT IS THE ONLY FIRM WHICH HAS SATISFACTORILY DEMONSTRATED THE ABILITY TO PERFORM THE CONTRACT REQUIREMENTS, AND THAT THE ORAL SOLICITATION SHOULD HAVE INCLUDED A REQUIREMENT THAT BIDDERS DEMONSTRATE THAT THEIR PRODUCTS WOULD PERFORM TO SYSTEM REQUIREMENTS. TO THE EXTENT THAT THE PROTEST IS BASED ON THE ARGUMENT THAT ONLY DORNE & MARGOLIN IS QUALIFIED TO PRODUCE THE MAST PORTIONS BECAUSE IT IS THE ONLY FIRM THAT HAS PROVEN ITS ABILITY TO DO SO, THE PROTESTER IS CLAIMING THAT THE GOVERNMENT SHOULD BE BUYING THE ITEM AS A SOLE-SOURCE PROCUREMENT. HOWEVER, THE PROTESTER'S ECONOMIC INTEREST IN ESTABLISHING ITSELF AS THE SOLE-SOURCE FOR THIS ITEM IS NOT A PROTECTABLE INTEREST UNDER OUR BID PROTEST FUNCTION, THE PURPOSE OF WHICH IS TO INSURE THAT FREE AND OPEN COMPETITION IS OBTAINED TO THE MAXIMUM PRACTICABLE EXTENT. SEE TURBINE COMPONENTS CORP., B-216079, JAN. 18, 1985, 85-1 CPD PARA. 55.

TO THE EXTENT THAT THE PROTESTER QUESTIONS THE FITNESS OF OTHER POTENTIAL SUPPLIERS, WE NOTE THAT BY AWARDING ANY CONTRACT, THE CONTRACTING OFFICER NECESSARILY FINDS A FIRM TO BE A RESPONSIBLE, PROSPECTIVE CONTRACTOR. SEE WARFIELD & SANFORD, INC., B-206929, APR. 20, 1962, 82-1 CPD PARA. 365. DO NOT REVIEW AN AGENCY'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR UNLESS THERE IS A SHOWING OF POSSIBLE FRAUD OR BAD FAITH ON THE PART OF THE PROCURING OFFICIALS OR THAT THE SOLICITATION CONTAINS DEFINITIVE RESPONSIBILITY CRITERIA WHICH THE PROCURING OFFICIALS FAILED TO APPLY. DOMAR INDUSTRIES, CO., INC., B-202735, SEPT. 4, 1981, 81-2 CPD PARA. 199. NEITHER EXCEPTION IS APPLICABLE HERE.

DORNE & MARGOLIN ALLEGES THAT SYSTEM TESTING QUALIFICATION REQUIREMENTS SHOULD HAVE BEEN IMPOSED ON THE STARWIN ITEM PRIOR TO APPROVING IT AS AN ACCEPTABLE PRODUCT, AND THAT THE ARMY'S FAILURE TO REQUIRE A DEMONSTRATION OF ADEQUATE PERFORMANCE CAPABILITY EXPOSES BOTH THE GOVERNMENT AND DORNE & MARGOLIN TO UNDUE RISK IN THE EVENT OF A SYSTEM FAILURE. IN THIS REGARD, THE ARMY REPORTS THAT COGNIZANT TECHNICAL OFFICIALS EVALUATED THE DATA FURNISHED BY STARWIN AND DETERMINED THAT THE ITEM WAS ACCEPTABLE AND DID NOT REQUIRE ANY SPECIAL TESTING.

THE PROCURING AGENCY HAS THE PRIMARY RESPONSIBILITY FOR DETERMINING ITS NEEDS AND FOR DRAFTING REQUIREMENTS THAT REFLECT THOSE NEEDS, SINCE IT IS THE AGENCY THAT IS MOST FAMILIAR WITH HOW THE SUPPLIES OR SERVICES HAVE BEEN OR WILL BE USED. EASTERN MARINE, INC., B-213945, MAR. 23, 1984, 84-1 CPD PARA. 343. THE AGENCY ALSO IS PRIMARILY RESPONSIBLE FOR EVALUATING AN OFFER FOR A PRODUCT AND DETERMINING WHETHER THE EQUIPMENT MEETS THE AGENCY'S REQUIREMENTS. PROTEK INDUSTRIES, INC., B-209505, SEPT. 22, 1983, 83-2 CPD PARA. 359. WE THEREFORE WILL NOT DISTURB EITHER AN AGENCY'S DECISION AS TO THE BEST METHOD OF ACCOMMODATING ITS NEEDS, OR THE AGENCY'S TECHNICAL DECISION WHETHER AN OFFERED ITEM MEETS THOSE NEEDS, ABSENT A CLEAR SHOWING BY THE PROTESTER THAT THE DECISION WAS UNREASONABLE. ELSCO INTERNATIONAL, B-215664, DEC. 17, 1984, 84-2 CPD PARA. 672.

HERE, THE AGENCY HAS CHARACTERIZED THE MAST SECTION AS A SIMPLE COMPONENT AND HAS DETERMINED THAT NO SPECIAL TESTING IS REQUIRED. DORNE & MARGOLIN'S CLAIM THAT THE USE OF AN UNTESTED PART COULD RESULT IN AN INJURY TO GOVERNMENT PERSONNEL AND POSSIBLE LITIGATION TO PROVE THAT ANY STRUCTURAL FAILURE RESULTED FROM THE USE OF SUCH PARTS AND NOT FROM EQUIPMENT FURNISHED BY DORNE & MARGOLIN, CONFLICTS WITH THIS VIEW. HOWEVER, THE FACT THAT THE PROTESTER DISAGREES WITH THE AGENCY'S DECISION DOES NOT IN ITSELF PROVE THE DECISION UNREASONABLE. FIL-COIL CO., INC., B-213078, FEB. 22, 1984, 84-1 CPD PARA. 219.

UNDER THE CIRCUMSTANCES, WE HAVE NO BASIS TO QUESTION THE ARMY'S DECISION NOT TO REQUIRE ANY SPECIAL QUALIFYING TESTS FOR THIS EQUIPMENT.

THE PROTEST IS DENIED.