B-160484, JAN. 30, 1967

B-160484: Jan 30, 1967

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WHICH ARE TO BE INSTALLED ON B-52 AIRCRAFT. PROPOSERS WERE PERMITTED TO OFFER ARRESTORS OTHER THAN THOSE MANUFACTURED BY YOU OR COLLINS. THE CONTRACT WAS AWARDED ON OCTOBER 19. YOU HAVE STATED THE FOLLOWING SIX REASONS FOR SUBMITTING THE PROTEST: 1. YOU ARE THE ONLY SUPPLIER SHOWN ON THE COLLINS' SPECIFICATION FOR THE SUBJECT PART AS A TECHNICALLY ACCEPTABLE SOURCE OF SUPPLY. YOUR EXCELLENT SERVICE RECORD SHOULD BE CONSIDERED BEFORE SUBSTITUTING ANOTHER ARRESTOR FOR WHICH THERE IS NO FIELD EXPERIENCE. SHOULD HAVE BEEN CONSULTED ABOUT THE ACCEPTABILITY OF THE DALE PRODUCT. BEFORE THE CONTRACT WAS AWARDED. YOUR ARRESTOR IS PROVEN TO MEET OR EXCEED THE APPLICABLE SPECIFICATION. DETERMINED THAT IN THEIR JUDGMENT DALE IS CAPABLE OF SUPPLYING A SATISFACTORY ITEM.

B-160484, JAN. 30, 1967

TO JOSLYN ELECTRONIC SYSTEMS:

IN YOUR LETTER OF OF NOVEMBER 28, 1966, YOU PROTEST THE AWARD OF A CONTRACT FOR LIGHTNING ARRESTORS, WHICH ARE TO BE INSTALLED ON B-52 AIRCRAFT. ALTHOUGH THE REQUEST FOR PROPOSALS (DSA-9-66-6462) DESCRIBES THE ARRESTORS BY REFERENCING A PART NUMBER OF YOURS AND OF COLLINS RADIO COMPANY, PROPOSERS WERE PERMITTED TO OFFER ARRESTORS OTHER THAN THOSE MANUFACTURED BY YOU OR COLLINS, PROVIDED THEY MET INTERCHANGEABILITY REQUIREMENTS. THE CONTRACT WAS AWARDED ON OCTOBER 19, 1966, TO DALE ELECTRONICS, INCORPORATED, BY DEFENSE ELECTRONICS SUPPLY CENTER (DESC), DEFENSE SUPPLY AGENCY,DAYTON, OHIO.

YOU HAVE STATED THE FOLLOWING SIX REASONS FOR SUBMITTING THE PROTEST:

1. YOU ARE THE ONLY SUPPLIER SHOWN ON THE COLLINS' SPECIFICATION FOR THE SUBJECT PART AS A TECHNICALLY ACCEPTABLE SOURCE OF SUPPLY;

2. YOUR EXCELLENT SERVICE RECORD SHOULD BE CONSIDERED BEFORE SUBSTITUTING ANOTHER ARRESTOR FOR WHICH THERE IS NO FIELD EXPERIENCE;

3. COMPETENT ENGINEERING PERSONNEL OF THE USING ACTIVITY (THE U.S. AIR FORCE), WHO KNOW THE HISTORY AND PRESENT CIRCUMSTANCES OF B-52 COMMUNICATIONS, SHOULD HAVE BEEN CONSULTED ABOUT THE ACCEPTABILITY OF THE DALE PRODUCT, BEFORE THE CONTRACT WAS AWARDED;

4. YOU DOUBT THAT THE DALE ARRESTOR MEETS COLLINS' SPECIFICATION REQUIREMENTS BECAUSE, FOR ONE REASON, COLLINS HAS NEVER APPROVED THE DALE ARRESTOR;

5. YOUR ARRESTOR IS PROVEN TO MEET OR EXCEED THE APPLICABLE SPECIFICATION;

6. THE SELECTION OF THE CONTRACTOR SHOULD BE BASED ON THE "TOTAL VALUE" OF YOUR PRODUCT--- A PROVEN FIELD RECORD, COMPLETE AND DOCUMENTED QUALIFICATION TESTING, AND A STABLE SELLING PRICE--- RATHER THAN ONE THE RELATIVELY INSIGNIFICANT DIFFERENCE IN PRICE QUOTATIONS.

THE ADMINISTRATIVE AGENCY HAS SUBMITTED A REPORT ON YOUR PROTEST WHICH SETS FORTH SPECIFIC REPLIES TO YOUR VARIOUS ALLEGATIONS. WITH RESPECT TO YOUR FIRST AND FOURTH ALLEGATIONS, WHICH APPEAR TO BE ESSENTIALLY THE SAME, DESC REPORTS THAT IT HAS NO EVIDENCE SHOWING THAT THE DALE ITEM HAS BEEN TESTED BY COLLINS, AND THEREFORE HAS NO KNOWLEDGE AS TO WHETHER COLLINS HAS FOUND THE DALE ITEM ACCEPTABLE OR NOT. MOREOVER, AFTER THE GOVERNMENT'S TECHNICAL PERSONNEL STUDIED DALE'S PROPOSAL IN RELATION TO THE COLLINS SPECIFICATION, AND DETERMINED THAT IN THEIR JUDGMENT DALE IS CAPABLE OF SUPPLYING A SATISFACTORY ITEM, THE CONTRACTING OFFICER DETERMINED THAT THE DALE PROPOSAL WAS RESPONSIVE IN ALL RESPECTS.

IN OUR DECISION B-139830, AUGUST 19, 1959, WE MADE THE FOLLOWING OBSERVATION:

"THIS OFFICE HAS NEITHER AN ENGINEERING STAFF NOR A TESTING LABORATORY TO EVALUATE THE TECHNICAL ASPECTS OF SPECIFICATIONS. MOREOVER, IN DISPUTES OF FACT BETWEEN A PROTESTANT AND A GOVERNMENT AGENCY, WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT. WHETHER A PARTICULAR BID IS RESPONSIVE TO THE TECHNICAL DETAILS OF THE SPECIFICATIONS IS NOT A MATTER, ORDINARILY, FOR OUR DETERMINATION. * *

IN THIS REGARD, WE HELD IN OUR DECISION B-143389, AUGUST 26, 1960, AS FOLLOWS:

"THE QUESTION AS TO THE ACTION, IF ANY, WHICH OUR OFFICE SHOULD TAKE IN CASES INVOLVING THE EVALUATION OF TECHNICAL REQUIREMENTS OF SPECIFICATIONS, ETC., HAS BEEN THE SUBJECT OF A NUMBER OF DECISIONS BY OUR OFFICE. YOUR PROTEST IS BASED UPON SUCH AN EVALUATION. OF NECESSITY, OUR OFFICE HAS ESTABLISHED A RULE GOVERNING SUCH SITUATIONS. IN A DECISION DATED JANUARY 8, 1938, TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, PUBLISHED AT 17 COMP. GEN. 554, 557, WE SET FORTH THE FOLLOWING RULE WHICH WE CONSIDERED TO BE CONTROLLING IN THE INSTANT MATTER:

" "IT IS IN THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS, AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THOSE SPECIFICATIONS. * * *" "

IN LIGHT OF THE FOREGOING, WE ARE NOT ABLE TO FIND ANY SUFFICIENT BASIS IN YOUR PROTEST, OR IN THE ADMINISTRATIVE REPORT, WHICH WOULD GIVE US CAUSE TO QUESTION THE ADMINISTRATIVE DETERMINATIONS WITH WHICH YOU DISAGREE.

THE AGENCY'S ANSWER TO YOUR SECOND ALLEGATION, REGARDING YOUR FIELD SERVICE RECORD, IS THAT HOWEVER MUCH THE GOVERNMENT MAY ENJOY DOING BUSINESS WITH A CONCERN WHOSE PRIDE IN ITS PRODUCT AND ITS RECORD IS UNDOUBTEDLY JUSTIFIED, THE APPLICABLE STATUTES AND REGULATIONS PROHIBIT CONTRACTING AGENCIES FROM LIMITING PROPOSALS TO ONE OR MORE NAMED COMPANIES UNLESS NO OTHER ITEM WILL MEET THE AGENCY'S NEEDS, OR NOR OTHER MANUFACTURER IS CAPABLE OF PRODUCING A SIMILAR ITEM WHICH WILL MEET THE AGENCY'S NEEDS. SEE, TO THE SAME EFFECT, B-148288, JUNE 1, 1962. CONCUR WITH THIS VIEW, AND THEREFORE WE CANNOT CONCLUDE THAT YOUR EXCELLENT SERVICE RECORD PROVIDES A LEGAL BASIS FOR EXCLUDING CONSIDERATION OF A PROPOSAL BY A RESPONSIBLE FIRM OFFERING TO SUPPLY AN ITEM WHICH CONFORMS TO STATED TECHNICAL REQUIREMENTS AND MEETS AGENCY NEEDS.

REGARDING YOUR THIRD ALLEGATION, THE ADMINISTRATIVE REPORT INDICATES THAT, PRIOR TO THE DECISION TO PURCHASE THE ITEM FROM DALE, DESC DID COORDINATE WITH THE COGNIZANT AIR FORCE ENGINEER ON NUMEROUS FACTORS.

WITH RESPECT TO YOUR FIFTH AND SIXTH ALLEGATIONS, REGARDING THE ACCEPTABILITY AND "TOTAL VALUE" OF YOUR PRODUCT, THE CONTRACTING AGENCY RECOGNIZES THE VALUE OF THE UNIT YOU MANUFACTURE, BUT STATES THAT THIS POINT IS ALSO IMMATERIAL TO A DECISION IN THE PRESENT CASE. WE AGREE WITH THE AGENCY'S POSITION THAT UNDER THESE CIRCUMSTANCES, AND UNDER APPLICABLE LAWS AND REGULATIONS, IT MUST CONTRACT WITH THE LOW, RESPONSIBLE FIRM WHICH OFFERS TO FURNISH AN ACCEPTABLE PRODUCT MEETING ALL STATED TECHNICAL REQUIREMENTS.

IN VIEW OF THE FOREGOING, WE ARE UNABLE TO CONCLUDE THAT ANY LEGAL BASIS EXISTS ON WHICH WE COULD PROPERLY OBJECT TO THE ACTIONS TAKEN BY THE ADMINISTRATIVE AGENCY. ACCORDINGLY, YOUR PROTEST IS DENIED.

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