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B-172082, SEP 2, 1971

B-172082 Sep 02, 1971
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AGAINST THE DETERMINATION BY THE IMMIGRATION AND NATURALIZATION SERVICE THAT A BID WAS NOT RESPONSIVE TO AN IFB FOR RADIO EQUIPMENT. THE USE OF INDIVIDUAL TECHNICAL JUDGMENT IN DETERMINING THE RESPONSIVENESS OF A BID IS SPECIFICALLY PROVIDED FOR UNDER THE FPR FOR FORMALLY ADVERTISED PROCUREMENTS. THROUGH THE POINT OF BID OPENING MUST BE DEEMED TO HAVE ACQUIESCED IN THE TERMS AND CONDITIONS AS SET OUT IN THE INVITATION. INC.: REFERENCE IS MADE TO YOUR LETTER OF APRIL 14. THAT YOUR BID WAS NONRESPONSIVE UNDER INVITATION FOR BIDS (IFB) CO 15-71. YOU CONTEND THAT THE USE OF GENERAL CONDITIONS 6 AND 7 OF THE IFB WAS IMPROPER IN THAT SUCH PROVISIONS OPENED UP THE MATTER OF RESPONSIVENESS TO TECHNICAL EVALUATION.

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B-172082, SEP 2, 1971

BID PROTEST - FAULTY SPECIFICATIONS - TIMELY OBJECTION REAFFIRMING PRIOR DECISION DENYING PROTEST OF SOUTHCOM INTERNATIONAL, INC. AGAINST THE DETERMINATION BY THE IMMIGRATION AND NATURALIZATION SERVICE THAT A BID WAS NOT RESPONSIVE TO AN IFB FOR RADIO EQUIPMENT. CONTRARY TO THE PROTESTANT'S BELIEF, THE USE OF INDIVIDUAL TECHNICAL JUDGMENT IN DETERMINING THE RESPONSIVENESS OF A BID IS SPECIFICALLY PROVIDED FOR UNDER THE FPR FOR FORMALLY ADVERTISED PROCUREMENTS. IN ANY EVENT, A PROTEST AGAINST SPECIFICATIONS IN THE IFB (HERE CALLING FOR THE USE OF INDIVIDUAL JUDGMENT) MUST BE FILED BEFORE BID OPENING; A BIDDER WHO PARTICIPATES IN PROCUREMENT, WITHOUT OBJECTION, THROUGH THE POINT OF BID OPENING MUST BE DEEMED TO HAVE ACQUIESCED IN THE TERMS AND CONDITIONS AS SET OUT IN THE INVITATION.

TO SOUTHCOM INTERNATIONAL, INC.:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 14, 1971, REQUESTING RECONSIDERATION OF OUR DECISION B-172082, APRIL 7, 1971, DENYING YOUR PROTEST AGAINST THE DETERMINATION BY THE IMMIGRATION AND NATURALIZATION SERVICE, U.S. DEPARTMENT OF JUSTICE, THAT YOUR BID WAS NONRESPONSIVE UNDER INVITATION FOR BIDS (IFB) CO 15-71.

THE SUBJECT SOLICITATION REQUESTED OFFERS FOR THE SUPPLY OF 92 RADIO RECEIVERS, 6 CHANNEL, CRYSTAL CONTROLLED, IN ACCORDANCE WITH THE SPECIFICATIONS SET FORTH IN THE IFB.

IN ADDITION TO EXPRESSING YOUR OBJECTION TO THE DETERMINATION OF NONRESPONSIVENESS, YOU CONTEND THAT THE USE OF GENERAL CONDITIONS 6 AND 7 OF THE IFB WAS IMPROPER IN THAT SUCH PROVISIONS OPENED UP THE MATTER OF RESPONSIVENESS TO TECHNICAL EVALUATION, INTERPRETATION AND SUBJECTIVE JUDGMENT WHICH FORMALLY ADVERTISED PROCUREMENT PROCEDURES ARE INTENDED TO PRECLUDE. YOU ALSO SAY THAT THIS OFFICE SHOULD NOT RELY ON THE DETERMINATIONS OF THE AGENCY TECHNICIANS, WHO PREPARED THE SPECIFICATIONS, IN RESOLVING TECHNICAL DISPUTES CONCERNING THE CONFORMANCE OF OFFERED PRODUCTS WITH THOSE SPECIFICATIONS. GENERAL CONDITIONS 6 AND 7 ARE AS FOLLOWS:

6. BIDDER MUST INDICATE THE MODEL OR TYPE NUMBER OR DESIGNATION OF ITEMS OFFERED, AND MUST STATE IF STANDARD MODEL REQUIRES MODIFICATIONS TO MEET THESE SPECIFICATIONS. BIDDER MUST ATTACH A GENERAL DESCRIPTION OF ANY SUCH MODIFICATIONS NECESSARY. IF IN THE JUDGEMENT OF THE CONTRACTING OFFICER, THE MODIFICATIONS LISTED PRECLUDE REASONABLE ENGINEERING EVALUATION AND SHOW DOUBT AS TO SUCCESSFUL OPERATION OR ADAPTABILITY TO PRESENT SYSTEM, SUCH MODIFICATIONS WILL RENDER THE BID NONRESPONSIVE.

ITEM TYPE OR DESIGNATION REQUIRES MODIFICATION

1 YES - NO

7. A WORKING SAMPLE OF THE STANDARD MODEL/S DESIGNATED IN PARAGRAPH 6 ABOVE, SHALL BE MADE AVAILABLE WITHIN TWO WEEKS OF A REQUEST, TO THE GOVERNMENT FOR THE PURPOSE OF MAKING EXAMINATIONS AND PERFORMANCE TEST AS DEEMED NECESSARY BY THE GOVERNMENT TO DETERMINE COMPLIANCE WITH THE SPECIFICATIONS SET FORTH. FOR PURPOSES OF THIS PARAGRAPH, A STANDARD MODEL IS DEFINED AS A BASIC RECEIVER, TRANSMITTER AND/OR POWER SUPPLY UNIT/S. IT IS NOT EXPECTED THAT THE SAMPLE BE MODIFIED IN ANY MANNER TO MEET THE REQUIREMENTS OF THIS SPECIFICATION. THE SAMPLE WILL BE RETURNED. THE REQUIREMENTS OF THIS PARAGRAPH ARE WAIVED IF THE BIDDER HAS PREVIOUSLY FURNISHED THIS AGENCY WITH SIMILAR EQUIPMENT AS DETERMINED BY THE CONTRACTING OFFICER.

WE AGREE THAT GENERAL CONDITION 6 PERMITS THE EXERCISE OF INDIVIDUAL JUDGMENT IN DETERMINING THE TECHNICAL ACCEPTABILITY OF PROPOSED ENGINEERING MODIFICATIONS TO A STANDARD MODEL, HOWEVER, AN EVALUATION OF THE TECHNICAL SUFFICIENCY OF AN ITEM IS BY NATURE A MATTER OF JUDGMENT. OUR OFFICE HAS LONG HELD THAT IT IS THE PROVINCE OF THE PROCURING ACTIVITY TO DRAFT SPECIFICATIONS AND TO DETERMINE WHETHER THE ARTICLES OFFERED MEET THOSE SPECIFICATIONS. SEE 17 COMP. GEN. 554, 557 (1938). WHILE THIS OFFICE HAS, ON INFREQUENT OCCASIONS, OBTAINED OPINIONS FROM TECHNICAL EXPERTS OTHER THAN THOSE IN THE PROCURING ACTIVITY, WE ARE NOT PERSUADED THAT THE CIRCUMSTANCE OF THIS PARTICULAR CASE IS SUCH AS TO REQUIRE US TO SECURE THE VIEWS OF INDEPENDENT ENGINEERS, AS YOU SUGGEST.

IN ADDITION, WE DO NOT AGREE WITH YOUR CONTENTION THAT THE USE OF INDIVIDUAL TECHNICAL JUDGMENT IN DETERMINING THE RESPONSIVENESS OF A BID IS FOREIGN TO FORMALLY ADVERTISED PROCUREMENT. THE SUBMISSION OF BID SAMPLES, AND THEIR TECHNICAL EVALUATION, IN PROCUREMENTS BY FORMAL ADVERTISING IS SPECIFICALLY PROVIDED FOR IN SECTION 1-2.202-4 OF THE FEDERAL PROCUREMENT REGULATIONS. ALSO, SEE SECTIONS 1-2.202-5 AND 1 1.307 -6 PROVIDING FOR USE IN INVITATIONS FOR BIDS OF DESCRIPTIVE LITERATURE AND BRAND NAME OR EQUAL CLAUSES WHICH ALLOW FOR TECHNICAL CONSIDERATIONS IN DETERMINING THE ACCEPTABILITY OF THE ITEMS BEING OFFERED.

YOU FURTHER ALLEGE THAT THE DEPARTMENT OF JUSTICE SHOULD HAVE REQUESTED SAMPLES CONFORMING PRECISELY TO THEIR SPECIFICATIONS, INSTEAD OF A STANDARD MODEL TOGETHER WITH A DESCRIPTION OF ANY MODIFICATIONS REQUIRED FOR THE STANDARD MODEL TO MEET THE SPECIFICATIONS. BY REQUIRING SUBMISSION OF A SAMPLE OF A STANDARD MODEL AND A DESCRIPTION OF ANY PROPOSED MODIFICATIONS BIDDERS WERE SPARED THE EXPENSE OF HAVING TO PRODUCE, PRIOR TO AWARD, A RECEIVER CONFORMING TO THE TECHNICAL SPECIFICATIONS OF THE IFB.

IN ANY EVENT, IT IS THE POSITION OF OUR OFFICE THAT PROTESTS AGAINST THE SPECIFICATIONS AND CONDITIONS OF AN IFB MUST BE FILED PRIOR TO THE OPENING OF BIDS. A BIDDER WHO PARTICIPATES IN A PROCUREMENT, WITHOUT OBJECTION, THROUGH THE POINT OF BID OPENING MUST BE DEEMED TO HAVE ACQUIESCED IN THE TERMS AND CONDITIONS AS SET OUT IN THE INVITATION. 50 COMP. GEN. 193 (B- 169835, SEPTEMBER 18, 1970). WE THEREFORE CONSIDER THAT YOUR PROTEST, AFTER AWARD, AGAINST GENERAL CONDITIONS 6 AND 7 IS UNTIMELY.

WHILE YOU QUESTION THE PROFESSIONAL COMPETENCE OF THE EMPLOYEES CONCERNED IN THE PROCURING AGENCY, AND YOU ALLEGE THAT THE REJECTION OF YOUR PRODUCT WAS DUE TO ARBITRARY AND CAPRICIOUS ACTIONS ON THEIR PART, IT IS OUR VIEW THAT YOU HAVE NOT PRESENTED A CLEAR SHOWING THAT THE AGENCY WAS ARBITRARY AND ERRONEOUS IN FINDING YOUR BID NONRESPONSIVE. SINCE, AS INDICATED IN OUR DECISION OF APRIL 7, 1971, WE DO NOT POSSESS THE DEGREE OF TECHNICAL COMPETENCE TO CATEGORICALLY STATE THAT YOUR BID WAS RESPONSIVE TO ALL OF THE MATERIAL TECHNICAL REQUIREMENTS OF THE IFB, WE WILL NOT OBJECT TO THE AGENCY'S FINDINGS.

ACCORDINGLY, OUR DECISION OF APRIL 7, 1971, IS AFFIRMED.

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