B-162403, JUL. 19, 1968

B-162403, JUL. 19, 1968

TO MR. SECRETARY:

WE REFER TO THE MAY 9, 1968, REPORT FROM THE OFFICE OF THE CHIEF OF ENGINEERS, WASHINGTON, D.C. (CODE ENGGC-C), CONCERNING THE PROTESTS OF LCL CONTROLS AND OF UNITED POWER AND CONTROL SYSTEMS, INCORPORATED, AGAINST A PROPOSED AWARD TO REPUBLIC ELECTRIC AND DEVELOPMENT COMPANY UNDER ADVERTISED SOLICITATION NO. DACW56-68-B-0036. WE HAVE BY OUR LETTERS OF TODAY, COPIES ENCLOSED, DENIED BOTH OF THE SUBJECT PROTESTS.

ALTHOUGH BY THIS ACTION WE HAVE UPHELD THE VALIDITY OF THE SOLICITATION IN QUESTION, AS A PRACTICAL MATTER THE HISTORY OF THIS PROCUREMENT POINTS OUT CERTAIN PROCEDURAL INADEQUACIES WHICH MERIT REMEDIAL ACTION.

A REVIEW OF THIS RECORD, WHICH SHOWS A SERIES OF THREE ADVERTISEMENTS RECEIVING ONLY 1 RESPONSIVE BID OUT OF 13, REVEALS THAT PROSPECTIVE CONTRACTORS HAD DIFFICULTY COMPLYING WITH THE REQUIREMENTS FOR DESCRIPTIVE DATA SET OUT IN THE SOLICITATIONS. IN PARTICULAR, PARAGRAPHS 22C (2) AND (3) OF THE BID SCHEDULE IN THE THIRD ADVERTISEMENT PROVED TROUBLESOME. TWO OUT OF 3 BIDS IN THE MOST RECENT ADVERTISEMENT WERE NONRESPONSIVE THROUGH THEIR FAILURE TO NOTE THAT THE MANUFACTURER THEY PROPOSED, ALTHOUGH APPROVED IN THE SPECIFICATIONS FOR A GREAT MAJORITY OF THE VARIOUS PROTECTIVE RELAYS IN ONE CASE AND FOR THE BASIC AUTOMATIC SYNCHRONIZER IN THE OTHER, WAS NOT APPROVED FOR ALL CLASSES AND PARTS SPECIFIED IN THE PARTICULAR GROUP. THE PROBLEM SEEMS TO STEM FROM THE USE OF ONE BLANK FOR THE INSERTION OF THE NAME OF THE PROPOSED MANUFACTURER OF AN ITEM WHERE THE SPECIFICATION FOR THE ITEM CONTAINS A NUMBER OF SUB- ITEMS WITH APPROVED MANUFACTURERS DIFFERENT FROM THE APPROVED MANUFACTURERS OF THE BASIC ITEM IN SOME CASES.

AS PRESENTLY DRAFTED, IT APPEARS THAT THE AUTHOR OF THE DATA REQUIREMENTS OF PARAGRAPHS 22C (2) AND (3) SACRIFICED CLARITY OF PRESENTATION FOR BREVITY. IT IS TRUE THAT A CLOSE READING OF THE SPECIFICATION ASSOCIATED WITH THE ITEMS REQUIRING DATA UNDER THESE PARAGRAPHS LEADS TO THE INTENDED CONCLUSION REGARDING THE DATA REQUIREMENTS FOR EACH ITEM OR SUB-ITEM, BUT, IN RETROSPECT, THE PARAGRAPHS APPEAR TO HAVE UNNECESSARILY CONFUSED BIDDERS IN PRACTICE.

WE RECOGNIZE THE DESIRABILITY OF RETAINING THE PRESENT PHYSICAL SEPARATION BETWEEN THE SPECIFICATIONS AND THE DATA REQUIREMENTS SET OUT IN THE BID SCHEDULE, FOR THIS FORMAT KEEPS THOSE PORTIONS OF THE SOLICITATION REQUIRING THE INSERTION OF INFORMATION BY THE OFFERORS COLLECTED IN ONE PORTION OF THE BID DOCUMENT. THIS PHYSICAL SEPARATION WOULD BE RETAINED IF THE FORMAT OF THE DATA REQUIREMENTS PROVISIONS WAS REDRAFTED TO EMPHASIZE THE LOGICAL CONNECTION BETWEEN THE DATA REQUIREMENTS AND THE VARIOUS PRODUCTS CITED IN THE SPECIFICATION AS SATISFYING THE GOVERNMENT'S NEEDS. WE ARE ENCLOSING A SUGGESTED DATA PAGE WHICH DEMONSTRATES ONE METHOD OF LOGICALLY CONNECTING THE DATA REQUIREMENTS TO THE APPROVED PRODUCTS CITED IN THE SPECIFICATION. SUCH A CHANGE WOULD, WE BELIEVE, HELP PROSPECTIVE CONTRACTORS FURNISH THE DESCRIPTIVE DATA NEEDED FOR A RESPONSIVE OFFER, THEREBY EFFECTIVELY BROADENING COMPETITION.

THE PREVIOUS DISCUSSION ASSUMES A NEED FOR ALL OF THE DESCRIPTIVE DATA CALLED FOR IN THE SUBJECT SOLICITATION. WE NOTE THAT NO ACCEPTABLE PRODUCTS WERE CITED FOR THE ITEMS LISTED IN PARAGRAPH 22C (1) OF THE BID SCHEDULE IN THE THIRD ADVERTISEMENT, SO OFFERORS WERE REQUIRED TO FURNISH DATA IN EVERY CASE. WE ALSO NOTE THAT SPECIAL CONDITION 3 PROVIDES FOR THE GOVERNMENT'S APPROVAL OF DRAWINGS AND PLANS BEFORE COMMENCEMENT OF WORK; SPECIAL CONDITION 13 PROVIDES RELIEF FOR THE GOVERNMENT SHOULD THE CONTRACTOR FAIL TO MEET THE SPECIFICATION; AND SPECIAL CONDITION 15 PROVIDES FOR GOVERNMENT INSPECTION OF THE WORK PRIOR TO ITS ACCEPTANCE. THESE SPECIAL CONDITIONS SHOULD INSURE THE RECEIPT OF ACCEPTABLE PRODUCTS CONFORMING TO THE SPECIFICATION FOR ITEMS WHICH ARE CAPABLE OF BEING DESCRIBED ADEQUATELY BY WRITTEN SPECIFICATIONS.

WE RECOGNIZE THAT IT IS THE PROCURING ACTIVITY'S RESPONSIBILITY TO DETERMINE WHETHER DESCRIPTIVE DATA IS ESSENTIAL TO A RATIONAL BID EVALUATION PROCESS. HOWEVER, IT IS ALSO CLEAR THAT THE GREATER THE DATA BURDEN PLACED UPON AN OFFEROR BY THE SOLICITATION, THE GREATER THE LIKELIHOOD THE OFFEROR WILL FAIL TO SATISFY THE DATA SUBMISSION REQUIREMENTS. FOR THIS REASON WE STRESS THE NEED FOR A CAREFUL SCREENING OF DATA SUBMISSION PROVISIONS TO INSURE THAT THEY REQUIRE NO MORE THAN THE MINIMUM AMOUNT OF DATA NEEDED TO PROTECT THE GOVERNMENT'S INTEREST IN OBTAINING A SUITABLE PRODUCT.