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B-229737, Mar 18, 1988, 88-1 CPD 288

B-229737 Mar 18, 1988
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PROCUREMENT - Competitive Negotiation - Alternate Offers - Rejection Propriety DIGEST: Procuring agency's evaluation as unacceptable of alternate product under "Products Offered" clause because of lack of sufficient information possessed by agency and supplied by protester was not unreasonable. Protester's contention that agency had conducted ample testing is without merit where testing was done to establish test methods and acceptable performance parameters. Which results have now been incorporated in new specifications suitable for competition. Which was issued by the Defense General Supply Center (DGSC). " clause is equal to the approved source item offered by Grimes and that DGSC should have accepted its lower-priced offer.

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B-229737, Mar 18, 1988, 88-1 CPD 288

PROCUREMENT - Competitive Negotiation - Alternate Offers - Rejection Propriety DIGEST: Procuring agency's evaluation as unacceptable of alternate product under "Products Offered" clause because of lack of sufficient information possessed by agency and supplied by protester was not unreasonable. Protester's contention that agency had conducted ample testing is without merit where testing was done to establish test methods and acceptable performance parameters, which results have now been incorporated in new specifications suitable for competition.

Micro Lamps, Inc:

Micro Lamps, Inc., protests the award of a contract to the Grimes Division of the Midland-Ross Corporation, under request for proposals (RFP) No. DLA400-87-R-5271, which was issued by the Defense General Supply Center (DGSC). Micro Lamps contends that its alternate product, offered under the "Products Offered," clause is equal to the approved source item offered by Grimes and that DGSC should have accepted its lower-priced offer.

We deny the protest.

On June 2, 1987, DGSC solicited offers for 30,400 incandescent lamps which were identified by NSN 6240-00-950-7472 and described as Grimes Part No. 16870. These particular lamps are used in 21 different weapons systems, including 15 types of aircraft. Until several other sources (including Micro Lamps) began submitting offers in 1983, Grimes was the only manufacturer and supplier of these lamps.

The Products Offered clause generally is used to procure replacement parts, as here. The clause explains that the RFP specifies brand-name models that the government knows are acceptable (most often the models that have been approved by the original equipment manufacturer) and that the government lacks detailed specifications or sufficient data to determine the acceptability of other products. The clause therefore provides that, while offers of alternate products will be considered, offerors must clearly describe the characteristics of the alternates and furnish with their offers drawings, specifications or other data covering "design, materials, performance, function interchangeability, inspection and/or testing criteria and other characteristics" of the product. The clause warns that failure to furnish complete data and information required to establish sufficiently the acceptability of the product may preclude consideration of the offer.

Micro Lamps offered its part No. ML1687 at 54.68 per unit as an alternative to the source item and Grimes offered its product at $5.70 per unit. Subsequently, Grimes amended its price to $5.43 per unit, and was awarded the contract on November 5, 1987. By letter of November 12, Micro Lamps was informed that its offer had been rejected because of inadequate data available for an evaluation of alternate products. Micro Lamps contends that its products had already received ample testing by the government and requests that we recommend the termination of the Grimes contract and award to Micro Lamps.

DGSC reports that, beginning in 1983, awards have been made to several other firms, including Micro Lamps, in accordance with Military Specification MIL-L-6363E. However, first article testing and actual use of the lamps revealed the following problems: (1) discrepancies between the specification and other MIL standards, (2) an inability to define the government's actual needs in aircraft requirements for vibration, shock and light distribution and (3) lack of historical first article testing data to show that lamps manufactured in accordance with the specifications met the government's needs. The only lamps successful in flight were the ones furnished by Grimes.

Because of these difficulties with the lamps procured under the above cited MIL specification, a supply shortage developed which culminated in a sole-source acquisition in July 1986 from Grimes. This acquisition was justified on the basis that the specification had proven inadequate for competitive procurements. FAR 6.302-1 (FAC 84 5).

At the same time, the Naval Air Engineering Center, Lakehurst, New Jersey (NAEC) began revising the specifications by conducting tests on lamps supplied by Grimes and Micro Lamps to determine acceptable test methods and performance parameters. These tests were completed in July 1987 and the revised specifications, suitable for competition, were issued February 8, 1988.

Micro Lamps contends that DGSC had adequate data to evaluate its offer including the drawing it submitted and the results of the testing completed in July 1987 by the NAHC. Micro Lamps argues that the test results shows that its lamps are equal to or better than those of Grimes.

DGSC responds that Micro Lamp's drawing was basically a reproduction of the drawing in the MIL-Spec and did not show the vibration, shock and light distribution capabilities of the item. Regarding the testing at NAEC, DGSC states that this testing was done to establish acceptable test parameters and methods to be used in establishing the new specifications, not to test the equality or interchangeability of the lamps. The data derived from these tests has now been incorporated in the February 8 revised specifications.

We have held that the procuring agency is responsible for evaluating the data supplied by an offeror or bidder and ascertaining if it provides sufficient information to determine the acceptability of a product and that we will not disturb the agency's technical determination unless it is shown to be unreasonable, which the protester must affirmatively prove. HoseCo, Inc., B-225122, Mar. 6, 1987, 87-1 CPD Para. 258.

Here, the agency has cited past procurements wherein it utilized data (the MIL-Spec) in an attempt to assure itself of acceptable products and received products that did not meet its minimum needs and led to the supply shortage. Following this shortage and the sole source procurement, DGSC took steps to improve the specification (i.e. the NAEC testing) to permit more competition.

In view of the procurement history, we cannot say DGSC acted unreasonably. While Micro Lamps states that the NAEC test results showed that its lamps perform as well as the Grimes' lamps, these tests were conducted solely to establish the test method and parameters allowable to assure acceptable products. The February 8 specifications will now permit the conduct of first article testing in the next purchase.

This protest is denied.

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