B-215664, DEC 17, 1984, 84-2 CPD 672
Highlights
CONTRACTS - NEGOTIATION - REQUESTS FOR PROPOSALS - SPECIFICATIONS - MINIMUM NEEDS - ADMINISTRATIVE DETERMINATION DIGEST: GAO WILL NOT DISTURB A PROCURING AGENCY'S DETERMINATION OF ITS NEEDS AND THE SPECIFICATIONS NECESSARY TO MEET THEM. THE NAVY EXPLAINS THAT THE PROCUREMENTS WERE CONDUCTED ORALLY UNDER THE SMALL PURCHASE PROCEDURES WHICH GENERALLY ALLOW AGENCIES TO CONDUCT SMALL PURCHASES ON AN INFORMAL BASIS TO REDUCE ADMINISTRATIVE COSTS. QUOTES WERE RECEIVED FROM TWO COMPANIES FOLLOWING AN ORAL SOLICITATION ON A BRAND NAME OR EQUAL BASIS. THE SALIENT CHARACTERISTICS DESCRIBED ORALLY BY THE BUYER WERE "CLEANING COMPOUND. " AND ELSCO'S PRODUCT WAS DESCRIBED AS THE BRAND NAME PRODUCT. A PURCHASE ORDER WAS PLACED WITH BAKKER.
B-215664, DEC 17, 1984, 84-2 CPD 672
CONTRACTS - NEGOTIATION - REQUESTS FOR PROPOSALS - SPECIFICATIONS - MINIMUM NEEDS - ADMINISTRATIVE DETERMINATION DIGEST: GAO WILL NOT DISTURB A PROCURING AGENCY'S DETERMINATION OF ITS NEEDS AND THE SPECIFICATIONS NECESSARY TO MEET THEM, OR THE AGENCY'S TECHNICAL EVALUATION OF PROPOSED EQUIPMENT, ABSENT A CLEAR SHOWING BY THE PROTESTER THAT THE AGENCY HAS ACTED UNREASONABLY.
ELSCO INTERNATIONAL:
ELSCO INTERNATIONAL, INC. PROTESTS TWO SMALL PURCHASES OF CLEANING COMPOUND FROM BAKKER & SON, INC. UNDER BLANKET PURCHASE AGREEMENT NO. 6850 -01-104-0796 BY THE NAVAL SUPPLY CENTER, SAN DIEGO, CALIFORNIA.
WE DENY THE PROTEST.
IN ITS REPORT TO OUR OFFICE, THE NAVY EXPLAINS THAT THE PROCUREMENTS WERE CONDUCTED ORALLY UNDER THE SMALL PURCHASE PROCEDURES WHICH GENERALLY ALLOW AGENCIES TO CONDUCT SMALL PURCHASES ON AN INFORMAL BASIS TO REDUCE ADMINISTRATIVE COSTS. SEE FEDERAL ACQUISITION REGULATION, PART 13, 48 FED. REG. 41,102, 42,163 (1983) TO BE CODIFIED AT 48 C.F.R. PART 13. QUOTES WERE RECEIVED FROM TWO COMPANIES FOLLOWING AN ORAL SOLICITATION ON A BRAND NAME OR EQUAL BASIS. THE SALIENT CHARACTERISTICS DESCRIBED ORALLY BY THE BUYER WERE "CLEANING COMPOUND, GENERAL PURPOSE; CONCENTRATE; SOLUBLE IN WATER; 5 GALLON CANS; LIQUID," AND ELSCO'S PRODUCT WAS DESCRIBED AS THE BRAND NAME PRODUCT. AFTER EVALUATION OF QUOTES, A PURCHASE ORDER WAS PLACED WITH BAKKER; DELIVERY HAS BEEN COMPLETED.
ELSCO CONTENDS THAT BAKKER'S PRODUCT WAS NOT AN EQUAL AND THAT THE ORAL SPECIFICATIONS IN FACT IMPROPERLY PERMITTED THE AGENCY TO ACCEPT PRODUCTS WHICH ARE NOT "PHYSICALLY, MECHANICALLY, ELECTRICALLY AND FUNCTIONALLY INTERCHANGEABLE" WITH ITS OWN PRODUCT. ELSCO OFFERS NO DOCUMENTS OR OTHER FACTS TO SUBSTANTIATE ITS ALLEGATION THAT THE BAKKER PRODUCT WAS NOT AN EQUAL.
THE PROCURING AGENCY HAS THE PRIMARY RESPONSIBILITY FOR DETERMINING ITS NEEDS AND FOR DRAFTING REQUIREMENTS THAT REFLECT THOSE NEEDS, SINCE IT IS THE AGENCY THAT IS MOST FAMILIAR WITH HOW THE SUPPLIES OR SERVICES HAVE BEEN OR WILL BE USED. EASTERN MARINE, INC., B-213945, MARCH 23, 1984, 84-1 CPD PARA. 343. THE AGENCY ALSO IS PRIMARILY RESPONSIBLE FOR EVALUATING AN OFFER FOR A PRODUCT AND DETERMINING WHETHER THE EQUIPMENT MEETS THE AGENCY'S REQUIREMENTS. PROTEK INDUSTRIES, INC., B-209505, SEPT. 22, 1983, 83-2 CPD PARA. 359. WE THEREFORE WILL NOT DISTURB EITHER AN AGENCY'S DECISION AS TO THE BEST METHOD OF ACCOMMODATING ITS NEEDS, OR THE AGENCY'S TECHNICAL DECISION WHETHER AN OFFERED ITEM MEETS THOSE NEEDS, ABSENT A CLEAR SHOWING BY THE PROTESTER THAT THE DECISION WAS UNREASONABLE. ID.,; INTERSTATE COURT REPORTERS, B-200881.2, FEB. 9, 1983, 83-1 CPD PARA. 145.
THE PROTESTER HAS THE BURDEN OF PROVING ITS CASE, ALCHEMY, INC., B-207954, JAN.10, 1983, 83-1 CPD PARA. 18, AND ELSCO HAS NOT OFFERED ANY EVIDENCE TO ESTABLISH THAT THE NAVY'S DECISION TO ACCEPT BAKKER'S PRODUCT AS AN EQUAL WAS UNREASONABLE. FIL-COIL COMPANY, INC., B-213078, FEB. 22, 1984, 84-1 CPD PARA. 219. IN THIS REGARD, THE NAVY STATES THAT THE SALIENT CHARACTERISTICS LISTED FULLY DESCRIBED ITS MINIMUM NEEDS AND THAT BAKKER'S PRODUCT COMPLIED WITH THESE REQUIREMENTS. WE FIND NOT BASIS TO DISAGREE.
THE PROTEST IS DENIED.