B-174775, JUN 5, 1972

B-174775, JUN 5, 1972

BID PROTEST - NONRESPONSIVENESS - IMPORT OF GAO DECISION CONCERNING THE PRIOR DENIAL OF A PROTEST OF MACHINERY ASSOCIATES, INC; AGAINST REJECTION OF ITS BID AS NONRESPONSIVE TO AN IFB ISSUED BY FRANKFORD ARSENAL, PHILADELPHIA, PA. GAO'S DECISION WAS PRIMARILY BASED ON THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT THE PROCURING ACTIVITY ERRONEOUSLY DETERMINED PROTESTANT'S BID TO BE NONRESPONSIVE. IT DOES NOT CONSTITUTE AN INDEPENDENT JUDGMENT AS TO THE TECHNICAL SUPERIORITY OF ANY PARTICULAR TYPE OF LATHE.

TO MACHINERY ASSOCIATES, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 13, 1972, REQUESTING RECONSIDERATION OF OUR DECISION OF MARCH 29, 1972, IN WHICH WE DENIED YOUR PROTEST AGAINST REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. DAAA25 -72-B-0201, ISSUED BY FRANKFORD ARSENAL, PHILADELPHIA, PENNSYLVANIA. NOTED IN THE DECISION, ONE BASIS FOR REJECTION OF YOUR BID WAS THE DETERMINATION THAT YOUR OFFER OF A TURRET LATHE WITH A VERTICAL BED WAS NONRESPONSIVE TO THE APPLICABLE SPECIFICATION REQUIREMENT THAT THE "BED OF THE LATHE SHALL BE OF THE SLANT TYPE."

BASED UPON YOUR LETTER AND SEVERAL TELEPHONE CONVERSATIONS WITH MR. WAGNER, IT APPEARS THAT YOUR PRIMARY CONCERN IS THAT OUR DECISION MAY BE INTERPRETED AS INDICATING THAT YOUR LATHE IS GENERALLY INFERIOR TECHNICALLY TO A SLANT BED TYPE. IN THIS CONNECTION, YOU HAVE REITERATED YOUR POSITION THAT AN OBJECTIVE REVIEW ON AN ENGINEERING LEVEL WOULD INDICATE THAT THE VERTICAL BED DESIGN IS NOT INFERIOR AND MAY BE SUPERIOR. ALSO, YOU STATE THAT IT IS ARBITRARY TO CONCLUDE THAT A SLANT BED MACHINE IS MORE RIGID, MORE ACCURATE, MORE STABLE AND LENDS ITSELF TO HEAVIER HORSEPOWER AND HEAVIER CUTTING ON THE BASIS OF BED CONFIGURATION ALONE WITHOUT CONSIDERATION OF SUCH THINGS AS DYNAMIC AND STATIC STIFFNESS, BEDWAY PLACEMENT, OTHER COMPONENT DESIGNS AND ALIGNMENT PROCEDURES.

IN VIEW OF YOUR APPARENT MISUNDERSTANDING OF THE IMPORT OF OUR DECISION, WE BELIEVE IT SHOULD BE CLARIFIED. IT IS NOT OUR RESPONSIBILITY TO DRAFT SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT OR TO DETERMINE WHETHER A PRODUCT MEETS THOSE SPECIFICATIONS. HOWEVER, IT IS OUR FUNCTION TO INSURE THAT GOVERNMENT PROCUREMENTS ARE MADE IN ACCORDANCE WITH APPLICABLE LAW, AND THIS NECESSARILY INVOLVES REVIEW OF ADMINISTRATIVE DISCRETION TO THE EXTENT NECESSARY TO SEE THAT IT HAS BEEN EXERCISED WITHIN PROPER LIMITS. IN THE AREA OF TECHNICAL DETERMINATIONS WE MUST NECESSARILY RELY PRIMARILY ON THE JUDGMENT AND EXPERTISE OF THE AGENCY'S ENGINEERING PERSONNEL AND WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THEIRS IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY IS IN ERROR.

IN THE INSTANT CASE, TECHNICAL PERSONNEL AT FRANKFORD ARSENAL DETERMINED THAT A SLANT BED CONFIGURATION WAS NECESSARY FOR THE PARTICULAR APPLICATION INTENDED. THIS DETERMINATION WAS BASED UPON A STUDY MADE PRIOR TO ISSUANCE OF THE SOLICITATION AND REVIEWED AND AFFIRMED AFTER ITS ISSUANCE AND AFTER CONSIDERATION OF INFORMATION SUBMITTED BY YOU. ALTHOUGH YOU TAKE STRONG EXCEPTION TO THIS DETERMINATION, AND WE RECOGNIZE THAT WITH RESPECT TO TECHNICAL MATTERS THERE MAY WELL BE DIFFERENCES OF OPINION, WE ARE UNABLE TO FIND THAT THERE WAS CLEAR AND CONVINCING EVIDENCE THAT COGNIZANT FRANKFORD ARSENAL PERSONNEL WERE IN ERROR. THEREFORE, WE DENIED YOUR PROTEST. SINCE YOU HAVE PRESENTED NO NEW EVIDENCE WHICH WOULD REQUIRE A DIFFERENT CONCLUSION, OUR PRIOR DECISION IS AFFIRMED.

HOWEVER, IT SHOULD BE UNDERSTOOD THAT IN DENYING YOUR PROTEST WE MADE NO INDEPENDENT JUDGMENT WITH RESPECT TO THE SLANT BED CONFIGURATION VERSUS THE VERTICAL BED CONFIGURATION EITHER FOR THIS PARTICULAR PROCUREMENT OR FOR GENERAL APPLICATION. FURTHERMORE, IT SHOULD BE UNDERSTOOD THAT OUR DECISION IN THE INSTANT CASE IS NOT CONCLUSIVE AS TO THE TECHNICAL ACCEPTABILITY OF ANY LATHE YOU MAY OFFER IN RESPONSE TO FUTURE PROCUREMENTS.