B-151099, AUG. 6, 1963
Highlights
THE REQUEST FOR PROPOSALS WAS ORIGINALLY ISSUED ON NOVEMBER 26. AFTER THE PROPOSALS RECEIVED HAD BEEN GIVEN SOME CONSIDERATION IT WAS DETERMINED THAT THE SPECIFIED DRAWING NUMBER WAS RESTRICTIVE IN THAT IT DEPICTED ONLY THE DESIGN OF AN ITEM PRODUCED BY ONE OF THE MANUFACTURERS WHO HAD SUBMITTED A PROPOSAL. IN VIEW OF THE NUMBER OF MANUFACTURERS COMMERCIALLY PRODUCING ITEMS HAVING THE SAME PURPOSE IT WAS DETERMINED THAT THE SPECIFICATIONS SHOULD BE MODIFIED TO PERMIT THE SUBMISSION OF PROPOSALS ON AN "OR EQUAL" BASIS. ALL PROSPECTIVE PROPOSERS WERE ADVISED THAT PROPOSALS COULD BE SUBMITTED IN CONFORMITY WITH THE SPECIFIED DRAWING OR EQUAL AND THAT THE QUANTITY TO BE PROCURED HAD BEEN INCREASED TO 40.
B-151099, AUG. 6, 1963
TO THE AMERICAN OPTICAL COMPANY:
WE REFER AGAIN TO YOUR TELEGRAM AND LETTER OF MARCH 19 AND 20, 1963, RESPECTIVELY PROTESTING AGAINST THE REJECTION OF PROPOSAL SUBMITTED IN RESPONSE TO REQUEST FOR PROPOSALS NO. 09-603-63-2474 ISSUED BY WARNER ROBINS AIR FORCE BASE FOR THE NEGOTIATED PROCUREMENT OF A QUANTITY OF AURAL PROTECTORS.
THE REQUEST FOR PROPOSALS WAS ORIGINALLY ISSUED ON NOVEMBER 26, 1962, FOR 25,600 AURAL PROTECTORS, TYPE NO. PRU-1/P, DRAWING NO. 57D 3529, REVISION D. AFTER THE PROPOSALS RECEIVED HAD BEEN GIVEN SOME CONSIDERATION IT WAS DETERMINED THAT THE SPECIFIED DRAWING NUMBER WAS RESTRICTIVE IN THAT IT DEPICTED ONLY THE DESIGN OF AN ITEM PRODUCED BY ONE OF THE MANUFACTURERS WHO HAD SUBMITTED A PROPOSAL. IN VIEW OF THE NUMBER OF MANUFACTURERS COMMERCIALLY PRODUCING ITEMS HAVING THE SAME PURPOSE IT WAS DETERMINED THAT THE SPECIFICATIONS SHOULD BE MODIFIED TO PERMIT THE SUBMISSION OF PROPOSALS ON AN "OR EQUAL" BASIS. AT THE SAME TIME A REQUIREMENT AROSE FOR AN ADDITIONAL 15,000 UNITS. THEREFORE, ON JANUARY 25, 1963, ALL PROSPECTIVE PROPOSERS WERE ADVISED THAT PROPOSALS COULD BE SUBMITTED IN CONFORMITY WITH THE SPECIFIED DRAWING OR EQUAL AND THAT THE QUANTITY TO BE PROCURED HAD BEEN INCREASED TO 40,600.
BY THE CLOSING DATE, FEBRUARY 11, 1963, NINE PROPOSALS HAD BEEN RECEIVED FROM SIX DIFFERENT SUPPLIERS. THE TWO LOW PROPOSALS, BOTH SUBMITTED BY THE DAVID CLARK COMPANY FOR DIFFERENT ITEMS, WERE DETERMINED NOT TO BE ACCEPTABLE. THE THIRD LOW PROPOSAL WAS THAT SUBMITTED BY YOUR FIRM ON YOUR MODEL NO. 1200.
IN EVALUATING YOUR PRODUCT A QUESTION AROSE AS TO ITS OVERALL ACCEPTABILITY BASED ON LIMITED TRIALS PERFORMED UP TO THAT TIME. ACCORDINGLY, A TEST OF THE PRODUCT WAS UNDERTAKEN. WHILE THE TEST HAD NOT BEEN FULLY COMPLETED ON MARCH 8, 1963, A NUMBER OF CHARACTERISTICS JUDGED TO BE UNDESIRABLE FOR THE GOVERNMENT'S PURPOSES HAD ALREADY BEEN NOTED. THESE WERE:
(1) SOUND ATTENUATION WAS NOT GOOD IN LOW FREQUENCY RANGE.
(2) EAR CUP TOO SMALL.
(3) DRILLED HOLES IN HEAD BAND AND EAR CUP STIRRUP CAUSED WEAKNESS.
(4) FOUR RIVETS IN HEADBAND WOULD BECOME LOOSE AND HEADBAND PAD WOULD COME LOOSE EVEN AFTER SECOND FIX.
(5) TOO UNCOMFORTABLE.
BASED ON THE RESULTS OF TEST UP TO THAT TIME IT WAS DETERMINED THAT YOUR MODEL NO. 1200 COULD NOT BE REGARDED AS THE EQUAL OF THE PRODUCT SPECIFIED BY THE CITED DRAWING. IT WAS DETERMINED, THEREFORE, TO REJECT YOUR PROPOSAL AND MAKE AWARD ON THE NEXT LOWEST PROPOSAL SUBMITTED BY WILLSON PRODUCTS, AND THE CONTRACT WAS AWARDED TO THAT FIRM ON MARCH 13, 1963. WHILE NOT RELEVANT TO THE ISSUES PRESENTED IN THE PROTEST, IT SHOULD BE NOTED THAT UNDER THE TERMS OF THE CONTRACT, DELIVERIES SHOULD HAVE BEEN COMPLETED ON OR ABOUT JULY 11, 1963.
THE ESTABLISHMENT OF SPECIFICATIONS TO MEET THE GOVERNMENT'S NEEDS AND THE DETERMINATION OF A PRODUCT'S CONFORMITY THEREWITH IS PRIMARILY THE RESPONSIBILITY OF THE PROCURING AGENCY. 17 COMP. GEN. 554. IN OUR VIEW THE PROCURING AGENCY HAS MADE OUT A PRIMA FACIE CASE THAT YOUR PRODUCT DID NOT MEET THE SPECIFICATION REQUIREMENTS. THEREFORE, AND IN VIEW OF THE PROCURING AGENCY'S PRIMARY JURISDICTION WITH REGARD TO SUCH QUESTIONS, WE FIND NO BASIS TO QUESTION THE VALIDITY OF THAT DETERMINATION OR THE AWARD MADE. SEE 40 COMP. GEN. 35, 38.