B-155433, JUN. 17, 1965

B-155433, JUN. 17, 1965

TO ARNDT AND DAY:

WE HAVE CONSIDERED THE JOINT PROTESTS OF THE OMNICRAFT CORPORATION AND THE REDMANSON CORPORATION AGAINST THE ACTIONS TAKEN BY THE UNITED STATES MARINE CORPS UNDER TWO-STEP INVITATION FOR BIDS NO. 208-64 AND REQUEST FOR PROPOSALS NO. 54Q-65, COVERING THE PROCUREMENT OF A QUANTITY OF AIR TRANSPORTABLE MAINTENANCE VANS, WITH AIR CONDITIONING, POWER PANEL AND RUNNING GEAR, AND WE HAVE CONCLUDED THAT NO LEGAL BASES EXIST FOR QUESTIONING THE PROCUREMENT ACTIONS TAKEN BY THE MARINE CORPS.

YOUR POINTS OF PROTEST ARE STATED AND CONSIDERED BELOW AS FOLLOWS:

"A) THE IMPRUDENCE OF COMBINING IN ONE AGGREGATE AWARD MAINTENANCE VANS (TOGETHER WITH RUNNING GEAR) AND AIR CONDITIONERS, BEING PRODUCTS OF ENTIRELY DIFFERENT FIELDS OF ENDEAVOR, RESULTING IN UNNECESSARY PYRAMIDING COSTS TO THE GOVERNMENT.'

THE MARINE CORPS ADVISES THAT THE PROBLEM OF COMPATIBILITY BETWEEN THE AIR CONDITIONER AND THE MAINTENANCE VAN AND RUNNING GEAR WAS RESOLVED, IN THE BEST INTERESTS OF THE GOVERNMENT, BY REQUIRING THAT THE COMPLETE END ITEM BE PROCURED FROM ONE MANUFACTURER. THIS MATTER OF COMPATIBILITY WAS SOLELY FOR RESOLUTION BY THE PROCUREMENT AGENCY WHOSE FUNCTION IS TO DRAFT SPECIFICATIONS FOR EQUIPMENT WHICH WILL MEET THE MINIMUM REQUIREMENTS OF THE GOVERNMENT. WHILE YOU MAY DISAGREE, APPARENTLY FOR THE REASON THAT BIDDING ON A COMPONENT BASIS WOULD HAVE BEEN MORE TO THE ADVANTAGE OF OMNICRAFT AND REDMANSON, THE GOVERNING CRITERIA ARE NOT THE DESIRES OF THE BIDDER, BUT RATHER, THE GOVERNMENT'S MINIMUM NEEDS AS REFLECTED IN THE DRAFTED SPECIFICATIONS. MOREOVER, THE GOVERNMENT MAY NOT BE PLACED IN A POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH DO NOT, IN THE CONSIDERED JUDGMENT OF THE RESPONSIBLE AGENCY, REASONABLY MEET THE GOVERNMENT'S NEEDS. 36 COMP. GEN. 251.

"B) THE RESTRICTIVENESS OF THE SPECIFICATIONS PERTAINING TO THE AIR CONDITIONER, I.E. BUREAU OF NAVAL WEAPONS PURCHASE DESCRIPTION WS 4957, DATED APRIL 14, 1964.'

YOU STATE THAT THE SPECIFICATION REQUIREMENT CONCERNING THE AIR CONDITIONER WAS WRITTEN AROUND THE PRODUCT OF THE AIR-A-PLANE CORPORATION USING THE MORE EXPENSIVE SOLE-SOURCE ROTARY, HELICON COMPRESSOR RATHER THAN THE CONVENTIONAL PISTON TYPE. SINCE THE MARINE CORPS HAD DETERMINED THAT A ROTARY, HELICON COMPRESSOR WAS ESSENTIAL TO THE GOVERNMENT'S NEEDS AND THAT A COMPRESSOR LACKING A HIGH SPEED ROTARY COMPRESSOR WOULD NOT SATISFY ITS ADVERTISED REQUIREMENTS, IT WOULD APPEAR THAT SUCH REQUIREMENT WAS STATED IN CONFORMITY WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1206.1 (A), WHICH READS IN PART AS FOLLOWS:

"* * * PURCHASE DESCRIPTIONS SHALL NOT BE WRITTEN SO AS TO SPECIFY A PRODUCT, OR A PARTICULAR FEATURE OF A PRODUCT, PECULIAR TO ONE MANUFACTURER AND THEREBY PRECLUDE CONSIDERATION OF A PRODUCT MANUFACTURED BY ANOTHER COMPANY, UNLESS IT IS DETERMINED THAT THE PARTICULAR FEATURE IS ESSENTIAL TO THE GOVERNMENT'S REQUIREMENTS, AND THAT SIMILAR PRODUCTS OF OTHER COMPANIES LACKING THE PARTICULAR FEATURE WOULD NOT MEET THE MINIMUM REQUIREMENTS FOR THE ITEM. * * *"

IN A MEMORANDUM DATED MARCH 2, 1965, FROM THE ASSISTANT SECRETARY OF THE NAVY (INSTALLATIONS AND LOGISTICS) TO THE ASSISTANT SECRETARY OF DEFENSE (INSTALLATIONS AND LOGISTICS), IT WAS STATED:

"SOME TWENTY REDMANSON AIR CONDITIONING UNITS HAVE BEEN FURNISHED IN THE PAST TO THE MARINE CORPS AND WERE AND ARE BEING USED IN PROTOTYPE VANS. WHILE THESE UNITS DO MEET THE REQUIREMENTS OF AN EARLIER SPECIFICATION UNDER WHICH THEY WERE PURCHASED, THEY ARE EXCESSIVELY BULKY AND COSTLY TO MAINTAIN. AS A CONSEQUENCE, THE MARINE CORPS HAS SPECIFIED AN AIR CONDITIONER UNDER THE CURRENT PROCUREMENT WHICH IT CONSIDERS WILL PROVIDE BETTER PERFORMANCE, WILL BE EASIER TO MAINTAIN AND WILL PROVIDE EASIER MANUAL AND MECHANICAL PORTABILITY. THE OFFICE OF NAVAL MATERIAL HAS REVIEWED THIS SPECIFICATION AND CONSIDERS IT TO BE REASONABLE AND NOT UNDULY RESTRICTIVE. REDMANSON CONTENDS THAT THE ROTARY COMPRESSOR IS PROPRIETARY TO FAIRCHILD-STRATOS. HOWEVER, WORTHINGTON CORPORATION MANUFACTURES ROTARY COMPRESSORS AND HAS INDICATED INFORMALLY AN INTEREST IN PARTICIPATING AS A POTENTIAL SUPPLIER TO THOSE COMPANIES BIDDING ON THE REMAINING VAN PROCUREMENT.'

AS WE HAVE INFORMALLY ADVISED YOU ON SEVERAL OCCASIONS, WE ARE NOT QUALIFIED TO JUDGE THE TECHNICAL ASPECTS OF A SPECIFICATION IN THE LIGHT OF THE USE TO BE MADE OF THE END ITEM. WE ARE REQUIRED TO GIVE GREAT WEIGHT TO THE TECHNICAL EXPERTISE OF THE PROCUREMENT ACTIVITY AND THE OPINIONS OF ITS ENGINEERING STAFF. THE RESPONSIBILITY FOR DRAFTING SPECIFICATIONS TO REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT AND TO DETERMINE FACTUALLY WHETHER EQUIPMENT OFFERED BY BIDDERS MEETS THOSE SPECIFICATIONS IS THE FUNCTION OF THE PROCUREMENT ACTIVITY. 17 COMP. GEN. 554. WHILE IT IS THE DUTY OF OUR OFFICE TO DETERMINE WHETHER SPECIFICATIONS ARE UNDULY RESTRICTIVE, THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SATISFYING THE GOVERNMENT'S NEEDS IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. 30 COMP. GEN. 368; 33 ID. 586; 36 ID. 251. THERE IS NO REQUIREMENT THAT THE GOVERNMENT PURCHASE CERTAIN EQUIPMENT MERELY BECAUSE IT IS CHEAPER, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; AND, AS STATED ABOVE, THE GOVERNMENT MAY NOT BE PLACED IN A POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE PROCUREMENT ACTIVITY, REASONABLY MEET THE GOVERNMENT'S NEEDS. CF. TINSTON V. CITY OF NEW YORK, 231 N.Y.S.2D 899 (1962).

MOREOVER, THE ACCEPTANCE OF EITHER OF OMNICRAFT'S TECHNICAL PROPOSALS COULD ONLY HAVE BEEN ACCOMPLISHED BY A WAIVER OF THE REQUIREMENTS ADVERTISED. THIS WOULD HAVE BEEN MANIFESTLY UNFAIR, NOT ONLY TO THE OTHER BIDDERS WHO MAY HAVE BEEN ABLE TO SUBMIT DIFFERENT TECHNICAL PROPOSALS ON RELAXED REQUIREMENTS, BUT ALSO TO OTHER FIRMS WHICH POSSIBLY WERE UNABLE TO MEET THE ADVERTISED REQUIREMENTS BUT WHOSE EQUIPMENT WOULD HAVE BEEN ACCEPTABLE IN THE EVENT OF SOME RELAXATION IN SUCH REQUIREMENTS. NOTWITHSTANDING THE ADVICE OF FEBRUARY 1, 1965, TO YOU, FROM THE WORTHINGTON AIR CONDITIONING COMPANY, IT DOES APPEAR FROM THE RECORD THAT AT LEAST AS OF MARCH 2, 1965, WORTHINGTON DID EVIDENCE INTEREST IN SUPPLYING ROTARY COMPRESSORS FOR THIS PROCUREMENT.

"C) THE INCAPABILITY OF PERFORMANCE OF THE GOVERNING AIR CONDITIONER SPECIFICATION WS-4957.'

ESSENTIALLY, YOU DISAGREE WITH THE MARINE CORPS AS TO THE "WORKABILITY" OF THE SPECIFICATION, AND YOU REFER TO SELF-SERVING ENGINEERING CONCLUSIONS TO SUPPORT YOUR POSITION. THE MARINE CORPS HAS ALWAYS MAINTAINED THAT ITS SPECIFICATION CAN AND WILL BE ENTIRELY COMPLIED WITH BY THE SUCCESSFUL BIDDER UNDER THE SECOND STEP OF THE INVITATION. WHILE WE UNDERSTAND THAT PRIVATE TESTING WILL BE UNDERTAKEN BY THE MARINE CORPS OF ONE OF THE UNITS PREVIOUSLY PROCURED UNDER REQUEST FOR PROPOSALS NO. 54Q-65 TO DETERMINE COMPLIANCE WITH THE SPECIFICATION "ASHRAE" TEST, THE RESULTS OF SUCH TEST WILL NOT NECESSARILY DETERMINE SPECIFICATION "WORKABILITY" AS TO THE SECOND-STEP PROCUREMENT. WITHOUT EXPRESSING AN OPINION, IT WOULD SEEM REASONABLE TO SUPPOSE THAT IF ANY CHANGES IN THE SPECIFICATION ARE REQUIRED, THEY WILL BE INCORPORATED INTO A CONTRACT RESULTING FROM THE SECOND-STEP COMPETITION. IN ANY EVENT, WE DO NOT HAVE THE COMPETENCY TO EVALUATE THE TECHNICAL COMPATIBILITY OR FEASIBILITY OF THE SPECIFICATION AND, ACCORDINGLY, WE HAVE NO FURTHER COMMENTS TO OFFER AS TO THIS POINT OF PROTEST OTHER THAN TO REITERATE THAT THE PROCUREMENT ACTIVITY PRIMARILY IS RESPONSIBLE FOR DETERMINING FACTUALLY WHETHER ITS SPECIFICATIONS ARE CAPABLE OF PERFORMANCE BY QUALIFIED BIDDERS.

"D) VIOLATION OF ARMED SERVICES PROCUREMENT REGULATION 2-501.

"ASPR 2-501 PROVIDES:

"GENERAL. TWO-STEP FORMAL ADVERTISING IS A METHOD OF PROCUREMENT DESIGNED TO USE AND OBTAIN THE BENEFITS OF FORMAL ADVERTISING WHERE INADEQUATE SPECIFICATIONS PRECLUDE THE USE OF CONVENTIONAL FORMAL ADVERTISING.'

"IN THE INSTANT CASE THE MARINE CORPS PROCUREMENT FOR THE MAINTENANCE VANS IS COVERED BY TWO CLEAR-CUT SPECIFICATIONS, ONE COVERING THE VAN, I.E. MIL-A-81030 (WEP) OF APRIL 21, 1964 AND THE OTHER COVERING THE AIR CONDITIONER, I.E. BUREAU OF NAVAL WEAPONS PURCHASE DESCRIPTION WS-4957 OF APRIL 14, 1964. BOTH SPECIFICATIONS FULLY COVERED THE ENTIRE UNIT, AND THE TWO-STEP FORMAL ADVERTISING METHOD WAS CONTRARY TO THE PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION.

"IN THE PROTESTANTS' CONSIDERED OPINION, THE MARINE CORPS ABUSED THE DEVICE OF A TWO-STEP FORMAL ADVERTISING DELIBERATELY FOR THE PURPOSE OF DISCRIMINATING AGAINST AND DISQUALIFYING UNWANTED SOURCES OF SUPPLY.'

ASPR 2-502 (A) PRESCRIBES THE CONDITIONS FOR USE OF TWO-STEP ADVERTISING AS FOLLOWS:

"/I) AVAILABLE SPECIFICATIONS OR PURCHASE DESCRIPTIONS ARE NOT SUFFICIENTLY DEFINITE OR COMPLETE OR MAY BE TOO RESTRICTIVE, AND THE LISTING OF THE SALIENT CHARACTERISTICS IN A "BRAND NAME OR EQUAL" DESCRIPTION WOULD LIKEWISE BE TOO RESTRICTIVE, TO PERMIT FULL AND FREE COMPETITION WITHOUT TECHNICAL EVALUATION, AND ANY NECESSARY DISCUSSION, OF THE TECHNICAL ASPECTS OF THE REQUIREMENT TO INSURE MUTUAL UNDERSTANDING BETWEEN EACH SOURCE AND THE GOVERNMENT;

"/II) DEFINITE CRITERIA EXIST FOR EVALUATING TECHNICAL PROPOSALS, SUCH AS DESIGN, MANUFACTURING, TESTING, AND PERFORMANCE REQUIREMENTS, AND SPECIAL REQUIREMENTS FOR OPERATIONAL SUITABILITY AND EASE OF MAINTENANCE;

"/III) MORE THAN ONE TECHNICALLY QUALIFIED SOURCE IS EXPECTED TO BE AVAILABLE;

"/IV) SUFFICIENT TIME WILL BE AVAILABLE FOR USE OF THE TWO-STEP METHOD; AND

"/V) A FIRM FIXED-PRICE CONTRACT OR A FIXED-PRICE CONTRACT WITH ESCALATION WILL BE USED.'

THE MARINE CORPS HAS REPORTED THAT SINCE THE DRAWINGS FOR THE VANS DID NOT CONFORM EXACTLY TO THE SPECIFICATION (MIL-A-81030/WEP) ( AND SINCE THESE DRAWINGS WERE NOT OTHERWISE AVAILABLE, IT WAS DETERMINED THAT TWO- STEP FORMAL ADVERTISING SHOULD BE USED TO DEVELOP MAXIMUM COMPETITION. THE REQUEST FOR UNPRICED TECHNICAL PROPOSALS DATED MAY 25, 1964, SUFFICIENTLY JUSTIFIED THE USE OF THE PROCEDURE AND DEMONSTRATED THE NECESSITY FOR TECHNICAL PROPOSALS TO DETERMINE THE ACCEPTABILITY OF THE END ITEM OFFERED BY RESPONDING BIDDERS. THE CATEGORIES OF INFORMATION TO BE FURNISHED BY BIDDERS WITH THEIR TECHNICAL PROPOSALS MADE IT ABUNDANTLY CLEAR THAT THE SPECIFICATIONS ALONE WERE INADEQUATE TO MEET THE OPERATING PARAMETERS OF THE SATS AIR CONDITIONER WITH RUNNING GEAR AND POWER PANELS. FOR EXAMPLE, BIDDERS WERE REQUESTED TO INCLUDE IN THEIR TECHNICAL PROPOSALS:

"1. A STATEMENT OF THE BIDDER'S UNDERSTANDING OF THE TECHNICAL REQUIREMENTS DEPICTED IN EXHIBIT "A," (INVITATION FOR BID) AND ALL REFERENCED SPECIFICATIONS AND MATERIAL.

"2. A STATEMENT THAT THE BIDDER CAN MANUFACTURE THE MAINTENANCE VANS IN ACCORDANCE WITH ALL OF THE REQUIREMENTS OF EXHIBIT "A.' IN THE EVENT THE BIDDER BELIEVES EXHIBIT "A" CONTAINS ERRORS, OMISSIONS, AMBIGUITIES, OR CONFLICTS, THE BIDDER SHALL POINT OUT THE PROBLEM AREAS BY SPECIFIC REFERENCE TO EXHIBIT "A.' THE OBJECT OF THIS ACTION IS TO RESOLVE PROBLEMS PRIOR TO AWARD OF A FIRM CONTRACT.

"8. A COMPLETE EXPLANATION OF HOW THE REQUIREMENTS OF SECTION D OF EXHIBIT "A" WILL BE INCORPORATED INTO THE GENERAL DESIGN OF THE MAINTENANCE VANS AS FOUND IN THE ENGINEERING DRAWINGS FURNISHED HEREWITH. THESE DRAWINGS ARE FURNISHED FOR INFORMATION ONLY. THE GENERAL CONFIGURATION, DIMENSIONS, TIE DOWN POINTS, AND LOCATION OF STRESS MEMBERS SHALL BE AS SHOWN IN THE DRAWINGS. WHERE A CONFLICT OCCURS BETWEEN THE DRAWINGS AND SECTION D, SECTION D SHALL GOVERN.

"INCLUDED IN THIS EXPLANATION SHALL BE AN EXPLANATION OF THE EXPECTED OPERATION AND PERFORMANCE OF THE ITEMS AS PROPOSED. THIS EXPLANATION SHALL BE AS COMPLETE AND DETAILED AS NECESSARY TO ENABLE ENGINEERING PERSONNEL TO MAKE A THOROUGH EVALUATION OF THE PROPOSAL. DRAWINGS AND/OR SKETCHES SHALL BE USED TO CLEARLY ILLUSTRATE THE BIDDER'S APPROACH TO THIS PROBLEM. STATEMENTS THAT THE BIDDER UNDERSTANDS, CAN, OR WILL COMPLY WITH THE SPECIFICATIONS; STATEMENTS PARAPHRASING THE SPECIFICATIONS OR PART THEREOF; STATEMENTS AS "STANDARD PROCEDURES WILL BE EMPLOYED" OR "WELL KNOWN TECHNIQUES WILL BE USED" ARE ALL UNSATISFACTORY. ELABORATE FORMAT AND BINDERS ARE NOT NECESSARY. CLARITY AND COMPLETENESS OF THE TECHNICAL APPROACH ARE OF THE UTMOST IMPORTANCE.'

WE FIND, THEREFORE, THAT THE PROCUREMENT WAS JUSTIFIED UNDER THE TWO STEP ADVERTISING PROCEDURES SET OUT IN SECTION 2, PART 5, OF ASPR. SEE, IN THIS CONNECTION 40 COMP. GEN. 514.

"E)VIOLATION OF ARMED SERVICES PROCUREMENT REGULATION 2-503.1 (C).

"ASPR 2-503.1 (C) PROVIDES THAT "PROPOSALS SHALL NOT BE CATEGORIZED AS UNACCEPTABLE WHEN A REASONABLE EFFORT ON THE PART OF THE GOVERNMENT TO OBTAIN CLARIFICATION OF (OR) ADDITIONAL INFORMATION COULD BRING THE PROPOSALS TO AN ACCEPTABLE STATUS AND THUS INCREASE COMPETITION.'

"THIS SECTION FURTHER PROVIDES:

"THE CONTRACTING OFFICER SHALL ARRANGE FOR ANY NECESSARY DISCUSSIONS WITH SOURCES SUBMITTING TECHNICAL PROPOSALS.'"

YOU ADVISE THAT OMNICRAFT SUBMITTED TWO TECHNICAL PROPOSALS, IDENTIFIED AS "A" AND "B.' HOWEVER, PROSPECTIVE BIDDERS WERE SPECIFICALLY CAUTIONED BY THE NOTICE ACCOMPANYING THE REQUEST FOR UNPRICED PROPOSALS THAT ONLY ONE PROPOSAL SHOULD BE SUBMITTED AND THAT MULTIPLE PROPOSALS WILL NOT BE CONSIDERED. HENCE, THE MARINE CORPS COULD HAVE REJECTED THE TWO ALTERNATE PROPOSALS WITHOUT FURTHER EVALUATION. BUT SINCE PROPOSAL "A" WAS INTENDED TO BE RESPONSIVE TO THE REQUEST FOR PROPOSALS, IT WAS EVALUATED BY THE BUREAU OF NAVAL WEAPONS AND THE MARINE CORPS WITH THE RESULT THAT IT WAS CATEGORIZED AS UNACCEPTABLE. WE ARE ADVISED THAT WHILE OMNICRAFT'S PROPOSAL A" WAS TENTATIVELY ACCEPTED BY THE BUREAU OF NAVAL WEAPONS, IT WAS REJECTED AS MATERIALLY DEFICIENT ON NOVEMBER 20, 1964, UPON FURTHER COORDINATED REVIEW AND ANALYSIS. WHILE MARGINAL TECHNICAL PROPOSALS MAY NOT ORDINARILY BE CATEGORIZED AS UNACCEPTABLE IF REASONABLE EFFORTS ON THE PART OF THE GOVERNMENT TO OBTAIN CLARIFICATION OR ADDITIONAL INFORMATION COULD BRING THEM TO AN ACCEPTABLE STATUS, THERE IS NO REQUIREMENT THAT THE GOVERNMENT INITIATE SUCH ACTIONS IN THE CASE OF MATERIALLY DEFICIENT PROPOSALS. PARTICULARLY PERTINENT HERE ARE THE THE STATEMENTS WE MADE IN 40 COMP. GEN. 35, 37-38:

"YOUR PROPOSAL WAS TERMED UNACCEPTABLE BECAUSE YOU HAD NOT FURNISHED SUFFICIENT INFORMATION TO PERMIT COMPLETE EVALUATION OF THE CAMERA YOU PROPOSED TO SUPPLY. FOR EXAMPLE, AMONG OTHER ITEMS, YOU DID NOT SHOW HOW YOU WOULD ACCOMPLISH THE FOCAL PLANE SHUTTER OR THE SYNCHRONIZATION OF THE FLASH NOR DID YOU FURNISH SCHEMATIC DRAWINGS SHOWING THE INTERIOR DETAILS AND MECHANISMS OF CERTAIN INNER WORKING PARTS. SINCE YOUR PROPOSAL WAS UNACCEPTABLE, YOU WERE NOT FURNISHED AN INVITATION TO BID IN THE SECOND PHASE OF THE PROCUREMENT. HOWEVER, BY LETTER DATED JUNE 20, 1960, YOU SUBMITTED A BID WHICH INCLUDED A SPECIFIC PRICE PLUS AN UNSTATED COST FOR SPARE PARTS TO BE DETERMINED SUBSEQUENTLY.

"YOU POINT OUT THAT AFTER YOU SUBMITTED YOUR TECHNICAL PROPOSAL YOU MADE REPEATED ATTEMPTS TO MEET WITH ENGINEERING OFFICIALS IN ORDER TO TRY TO BRING YOUR PROPOSAL UP TO STANDARDS, BUT THAT YOU WERE NEVER OFFERED AN OPPORTUNITY TO DO SO. IN THIS CONNECTION, HOWEVER, PROSPECTIVE BIDDERS WERE ADMONISHED IN THE REQUEST FOR TECHNICAL PROPOSALS AND AT THE BRIEFING CONFERENCE, AT WHICH A VIEWLEX REPRESENTATIVE WAS IN ATTENDANCE, THAT TIME WAS LIMITED AND THAT BIDDERS WOULD HAVE TO COMPLY BY THE CUT-OFF DATE FOR FURNISHING THEIR PROPOSALS. THE REQUEST FOR TECHNICAL PROPOSALS STATES IN NO UNCERTAIN TERMS: "IT IS STRONGLY URGED THAT THE REQUIREMENTS FOR THE TECHNICAL PROPOSALS * * * BE STRICTLY COMPLIED WITH AND COMPLETE IN ALL RESPECTS.' FURTHER IT INDICATES THAT ONLY MARGINAL PROPOSALS WOULD BE PERMITTED TO BE BROUGHT UP TO ACCEPTABLE STANDARDS. SINCE YOUR PROPOSAL WAS CONSIDERED MATERIALLY DEFICIENT YOU WERE NOT REQUESTED TO SUPPLY ADDITIONAL DATA.

"THE TWO-STEP PROCUREMENT FOLLOWED IN THIS CASE WAS IN ACCORDANCE WITH AFPI 2-2100 ET SEQ. THESE REGULATIONS AND THEIR IMPLEMENTATION WERE PROMULGATED AT THE SUGGESTION AND RECOMMENDATION OF THE SUBCOMMITTEE FOR SPECIAL INVESTIGATIONS OF THE HOUSE ARMED SERVICES COMMITTEE. SEE REPORT ON STUDY OF ARMED SERVICES PROCUREMENT ACT, JUNE 15, 1957, P. 652 ET SEQ. UNDER THESE REGULATIONS, THE DETERMINATION OF THE ACCEPTABILITY OF TECHNICAL PROPOSALS IS VESTED IN THE PROCUREMENT OFFICIALS WHO ARE BEST QUALIFIED TO EVALUATE THEM. FURTHER, IT IS WELL SETTLED THAT THE RESPONSIBILITY FOR DETERMINING THE NEEDS OF THE GOVERNMENT AND WHETHER TECHNICAL PROPOSALS MEET THE GOVERNMENT'S REQUIREMENTS IS VESTED IN THE PROCURING AGENCIES ALONE. IN THIS CONNECTION, APPROPRIATE GOVERNMENT OFFICIALS HAVE DETERMINED THAT YOUR PROPOSAL WAS UNACCEPTABLE BECAUSE IT WAS MATERIALLY DEFICIENT IN RESPECTS REFERRED TO ABOVE, AND IN OTHERS THAT WERE REPORTED TO YOU BY AN ADMINISTRATIVE LETTER OF JUNE 14, 1960. ACCORDANCE WITH LONG ESTABLISHED PRECEDENT, WE WILL NOT QUESTION THEIR DETERMINATION.

"IT SHOULD BE NOTED FURTHER THAT THE VERY SITUATION INVOLVED HERE WAS BROUGHT TO THE ATTENTION OF THE SUBCOMMITTEE FOR SPECIAL INVESTIGATIONS OF THE HOUSE ARMED SERVICES COMMITTEE BEFORE THE AFPI REGULATIONS AND IMPLEMENTATION WERE ISSUED. SEE PROBLEM 1, REPORT OF JUNE 15, 1957, SUPRA, P. 660. IT THUS APPEARS THAT THE BENEFITS FLOWING FROM THIS PROCEDURE WERE CONSIDERED BY THE SUBCOMMITTEE TO OUTWEIGH ANY SHORTCOMINGS. WE CANNOT DISAGREE WITH THIS VIEW. WE RECOGNIZE THAT PROCEDURE THAT PERMITS PROCUREMENT OFFICIALS TO REASONABLY CIRCUMSCRIBE THE AREA OF CONSIDERATION OF PROPOSALS CAN BE NECESSARY IN CERTAIN CASES IF THEY ARE TO ACHIEVE THEIR EVALUATION AND CONSUMMATE THEIR COMMITMENTS WITHIN THEIR TIME LIMITATIONS. OBVIOUSLY, PROCUREMENTS CANNOT BE LEFT OPEN INDEFINITELY NOR BIDDERS PERMITTED TO ENGAGE IN ACTIVITY WHICH WOULD BRING ABOUT THAT RESULT.'

SEE, ALSO, 40 COMP. GEN. 40. WE ARE ENCLOSING FOR YOUR INFORMATION A COPY OF OUR DECISION OF MAY 21, 1965, IN THE CASE OF THE KECO INDUSTRIES, INC., PROTEST AGAINST THE REJECTION OF ITS TECHNICAL PROPOSAL UNDER THIS INVITATION. WHAT WAS HELD THERE WITH RESPECT TO THE APPLICATION OF ASPR 2 -503.1 (C) IS EQUALLY TRUE HERE.

SINCE THE MARINE CORPS DETERMINED, AFTER A COORDINATED TECHNICAL ANALYSIS OF OMNICRAFT'S PROPOSAL "A," THAT IT WAS UNACCEPTABLE BECAUSE OF MATERIAL TECHNICAL DEVIATIONS FROM ITS REQUIREMENTS, WE FIND NO LEGAL BASIS TO QUESTION SUCH REJECTION ACTION. SEE OUR DECISION OF MAY 21, 1965, ATTACHED.

"F) FAILURE BY THE MARINE CORPS TO CONSIDER OMNICRAFT'S PROPOSAL "B.'

"THIS PROPOSAL REFERRED TO REDMANSON'S PROPOSAL "B," SUBMITTING A UNIT ESPECIALLY RESEARCHED AND DEVELOPED TO MEET THE MARINE CORPS SATS PROGRAM. THIS UNIT WAS DESIGNED IN ACCORDANCE WITH A PERSONAL APPEAL BY PRESIDENT JOHNSON IN A LETTER OF DECEMBER 2, 1963 REQUESTING REDMANSON'S ASSISTANCE IN ESTABLISHING AN AFFIRMATIVE PROGRAM OF COST REDUCTION IN THE PERFORMANCE OF DEFENSE CONTRACTS BOTH WHICH THEY THEN HELD AND THOSE WHICH "THEY MAY SUBSEQUENTLY RECEIVE.'

"REDMANSON'S "B" PROPOSAL WAS ALSO SUBMITTED AS AN ALTERNATE PROPOSAL UPON THE EXPRESS DIRECTION OF COLONEL GAYLORD C. GREENFIELD OF THE AVIATION LOGISTICS AND MATERIEL BRANCH OF THE MARINE CORPS IN A MEETING ON JUNE 5, 1964 AND, IF NECESSARY, AFFIDAVITS TO THAT EFFECT CAN BE ADDUCED.

"AT NO TIME DID OMNICRAFT OR REDMANSON CLAIM THAT THE ALTERNATE "B"UNIT AS DESIGNED BY REDMANSON CORPORATION WAS MEETING THE SPECIFICATION WHICH, AS STATED ABOVE, WAS WRITTEN AROUND THE AIR-A PLANE AIR CONDITIONER. HOWEVER, OMNICRAFT AND REDMANSON HAVE ALWAYS CLAIMED AND ARE STILL CLAIMING THAT THIS UNIT WOULD FULLY MEET THE REQUIREMENTS OF THE MARINE CORPS SATS PROGRAM AND CAN BE OBTAINED AT A SAVING OF APPROXIMATELY $1,600,000 TO THE GOVERNMENT.

"ALTHOUGH OMNICRAFT AND REDMANSON HAVE JOINTLY INDEPENDENTLY MADE CONTINUOUS EFFORTS BEFORE THE MARINE CORPS, THE NAVY DEPARTMENT AND THE DEPARTMENT OF DEFENSE IN REQUESTING A HEARING BEFORE A PROPERLY CONSTITUTED PANEL OF EXPERTS IN ORDER TO PLEAD THE MERITS OF THE REDMANSON "B" PROPOSAL, TO THIS DATE NO SUCH HEARING HAS BEEN GRANTED NOR ANY SUBSTANTIVE EVALUATION OF THIS PROPOSAL ON ITS MERITS HAS BEEN CONDUCTED.'

WHAT WE HAVE SAID ABOVE RELATING TO PROHIBITED ALTERNATIVE PROPOSALS IS APPLICABLE HERE ALSO. IN EFFECT, YOU FEEL THAT OMNICRAFT HAS THE RIGHT TO IMPOSE UPON THE MARINE CORPS ITS OWN CONCEPT OF THE AIR CONDITIONING UNIT WHICH ADMITTEDLY DOES NOT CONFORM TO THE ADVERTISED SPECIFICATION. KNOW OF NO AUTHORITY WHEREUNDER NONSPECIFICATION EQUIPMENT MAY BE THRUST UPON THE GOVERNMENT CONTRARY TO ITS ANNOUNCED SPECIFICATIONS AND REQUIREMENTS. IN OUR VIEW, THE OMNICRAFT PROPOSAL ,B" WAS PURELY GRATUITOUS AND IMPOSED NO OBLIGATION ON THE MARINE CORPS TO EVALUATE IT ON A COMMON BASIS WITH OTHER CONFORMING TECHNICAL PROPOSALS.

YOUR POINT "G)" RESPECTING THE ALLEGED VIOLATION BY THE MARINE CORPS OF ITS OWN GROUND RULES RELATES STRICTLY TO CONTRACT ADMINISTRATION AND WE OFFER NO COMMENTS WITH RESPECT THERETO OTHER THAN TO OBSERVE THAT THE MARINE CORPS IS UNDERTAKING "ASHRAE" TESTING OF ONE OF THE UNITS PROCURED UNDER THE URGENT NEGOTIATED PROCUREMENT.

YOU ADVISE THAT THE BUREAU OF THE BUDGET HAS BEEN REQUESTED TO REVIEW THE PROCEDURES FOLLOWED BY THE MARINE CORPS AND THAT THE "ASHRAE" TESTS OTHERWISE REQUIRED BY THE SPECIFICATIONS OF THE AIR CONDITIONING UNITS PREVIOUSLY PROCURED UNDER REQUEST FOR PROPOSALS NO. 54Q-65 WILL BE PERFORMED BY A PRIVATE ORGANIZATION TO PROVE WHETHER THE SPECIFICATIONS ARE CAPABLE OF COMPLIANCE. IN VIEW THEREOF, YOU REQUESTED THAT WE DEFER OUR DECISION ON THESE PROTESTS UNTIL THE RESULTS OF THE "ASHRAE" TESTS ARE KNOWN AND THE DIRECTOR OF THE BUREAU OF THE BUDGET HAS HAD AN OPPORTUNITY TO MAKE A REVIEW. WE HAVE BEEN INFORMALLY ADVISED BY THE BUREAU OF THE BUDGET THAT ITS REVIEW HAS BEEN COMPLETED AND THAT IT HAS FOUND THAT THE SPECIFICATIONS WERE TECHNICALLY PROPER; THAT THE REJECTION OF THE OMNICRAFT PROPOSALS WAS PROPER; THAT NO INDICATION OF IRREGULARITY OR PREJUDICE WAS FOUND, AND THAT THE REVIEW DID NOT DISCLOSE ANY EVIDENCE OF WASTE OR EXTRAVAGANCE. ALSO, THE MARINE CORPS HAS ADVISED US INFORMALLY THAT IT IS PROCEEDING AS RAPIDLY AS POSSIBLE TO PROCURE THE URGENTLY NEEDED END ITEMS UNDER THE SECOND STEP OF THE INVITATION, AND THAT NO SUBSTANTIAL BASIS EXISTS FURTHER DELAY THIS URGENT PROCUREMENT.

ACCORDINGLY, WE WOULD NOT BE JUSTIFIED IN FURTHER DEFERRING OUR DECISION AND THE PROTESTS ARE DENIED.