B-165527, NOV. 12, 1968

B-165527, NOV. 12, 1968

TO SHERER-GILLETT COMPANY:

REFERENCE IS MADE TO YOUR CORRESPONDENCE PROTESTING AGAINST THE AWARD OF A CONTRACT TO SCIENTIFIC SYSTEMS CORPORATION (SSC) BY THE AGRICULTURAL RESEARCH SERVICE UNDER INVITATION FOR BIDS NO. 274-S-ARS 68, WHICH WAS FORWARDED TO OUR OFFICE FOR CONSIDERATION BY THE OFFICE OF PLANT AND OPERATIONS, OFFICE OF THE SECRETARY, DEPARTMENT OF AGRICULTURE.

THE SUBJECT INVITATION WAS ISSUED ON JUNE 4, 1968, FOR THE PROCUREMENT OF ONE PLANT GROWTH CHAMBER. BIDS RECEIVED FROM THREE FIRMS WERE OPENED ON JUNE 18, 1968. BOTH YOU AND SSC SUBMITTED BASIC AND ALTERNATE BID. BOTH ALTERNATE BIDS WERE DETERMINED NONRESPONSIVE, AS WAS THE ONE BID RECEIVED FROM THE THIRD FIRM. OF THE REMAINING TWO BIDS, SSC'S BID WAS LOWER AT A PRICE OF $7,150. AWARD WAS MADE TO SSC ON JUNE 29, 1968.

YOUR LETTER OF JULY 15, 1968, TO THE CONTRACTING OFFICER SETS FORTH THE BASIS OF YOUR PROTEST. YOU CONTEND THAT SSC DOES NOT QUALIFY UNDER THAT PART OF THE GENERAL CONDITIONS WHICH PROVIDES THAT:

"* * * IT IS REQUIRED THAT THE GROWTH CHAMBERS FURNISHED UNDER THESE SPECIFICATIONS BE THE PRODUCT OF AN ESTABLISHED MANUFACTURER HAVING PREVIOUS EXPERIENCE IN THIS FIELD, AND WHO HAS ACTUALLY MANUFACTURED AND INSTALLED SIMILAR EQUIPMENT OF A SATISFACTORY CHARACTER. BIDDERS MUST SUBMIT WITH THEIR BIDS A LIST OF AT LEAST THREE (3) LOCATIONS WHERE SUCH INSTALLATIONS ARE NOW OPERATING SATISFACTORILY * * *.' IN THIS CONNECTION, IT IS YOUR POSITION THAT SSC HAS NEVER MANUFACTURED THIS EQUIPMENT AND THE EQUIPMENT BEING USED AT TWO OF THE THREE INSTALLATIONS NAMED BY SSC IS PERCIVAL EQUIPMENT. SINCE SSC HAS NOT MANUFACTURED THE EQUIPMENT, YOU CONTEND THAT IT COULD NOT HAVE THE NECESSARY LITERATURE AND SUPPORTING DATA TO COMPLY WITH THAT PART OF THE GENERAL CONDITIONS WHICH PROVIDES: "BIDDERS ARE REQUESTED TO SUBMIT WITH THE BIDS DESCRIPTIVE LITERATURE, AS WELL AS TECHNICAL DATA AND SPECIFICATIONS REGARDING ITEMS OFFERED.'

IT IS REPORTED THAT SSC SUBMITTED THE NAMES OF THREE LOCATIONS WHERE THEY HAD INSTALLED CHAMBERS OF SIMILAR CONSTRUCTION. THESE LOCATIONS WERE CONTACTED BY THE PROCURING ACTIVITY AND INQUIRY MADE AS TO CONSTRUCTION AND PERFORMANCE OF THE EQUIPMENT. FROM THESE CONTACTS IT WAS CONCLUDED THAT THE CHAMBERS MET ALL REQUIREMENTS OF THE INVITATION. WITH REGARD TO THE MANUFACTURER OF THE EQUIPMENT, THE PROCURING ACTIVITY REPORTS THAT NO ONE MANUFACTURER OR SUPPLIER ACTUALLY MANUFACTURES ALL THE COMPONENTS, SUCH AS COMPRESSORS, LIGHTS, CONTROLS, AND TIMERS, NECESSARY FOR FABRICATION OF A PLANT GROWTH CHAMBER. ACCORDING TO THE PROCURING ACTIVITY, SSC OBTAINS THE CABINET FROM ANOTHER MANUFACTURER AND THEN INSTALLS THE NECESSARY CONTROLS AND OTHER COMPONENTS TO COMPLETE THE UNIT.

IN OUR OPINION, THE FIRST GENERAL CONDITION QUOTED ABOVE IS NO MORE THAN A REQUIREMENT THAT THE GROWTH CHAMBER PROPOSED TO BE DELIVERED UNDER THE CONTRACT IS OF PROVEN DEPENDABILITY AND PRECISION, WHICH FACT MUST BE DEMONSTRATED BY THE BIDDER. HOWEVER, WE DO NOT INTERPRET THIS PROVISION AS REQUIRING THAT THE BIDDER MUST ACTUALLY "MANUFACTURE" THE UNIT OR ANY PART THEREOF. SINCE IN OUR OPINION THE PROVISION RELATES TO THE BIDDER'S RESPONSIBILITY, THAT IS, HIS ABILITY TO DELIVER AN ACCEPTABLE GROWTH CHAMBER, IT INVOLVES A QUESTION OF FACT PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE OFFICIALS CONCERNED. 45 COMP. GEN. 4; 43 ID. 257; 38 ID. 131. AS NOTED ABOVE, AN AFFIRMATIVE DETERMINATION IN THIS REGARD WAS MADE AND IT IS NOT WITHIN THE PROVINCE OF OUR OFFICE TO DISPUTE SUCH DETERMINATION WHERE, AS HERE, IT WAS NOT ARBITRARY OR CAPRICIOUS AND WAS BASED UPON SUBSTANTIAL EVIDENCE.

WITH REGARD TO WHETHER SSC COMPLIED WITH THE DESCRIPTIVE LITERATURE REQUIREMENT, WE ARE ADVISED THAT ITS BID INCLUDED A TWO PAGE SPECIFICATION SHEET AS WELL AS A SET OF DRAWINGS SUFFICIENT TO DETERMINE THAT THE EQUIPMENT PROPOSED WOULD MEET THE REQUIREMENTS OF THE INVITATION.

IN THESE CIRCUMSTANCES, WE SEE NO BASIS UPON WHICH WE MAY PROPERLY DISTURB THE AWARD TO SCIENTIFIC SYSTEMS CORPORATION.