B-164651, NOV. 29, 1968

B-164651, NOV. 29, 1968

TO EDWIN INDUSTRIES CORPORATION:

WE REFER TO YOUR LETTER OF JUNE 20 AND SUBSEQUENT CORRESPONDENCE PROTESTING AGAINST THE AWARD OF A CONTRACT BY THE FOREST SERVICE TO BENDIX RESEARCH LABORATORIES FOR FURNISHING A MAGNETIC TAPE DIGITIZING SYSTEM.

ON MAY 14, 1968, THE FOREST SERVICE ISSUED INVITATION FOR BIDS NO. 21- 1968-9. THE INVITATION DESCRIBED THE DIGITIZING SYSTEM IN DETAIL AND CONTAINED A BRAND NAME OR EQUAL CLAUSE SPECIFYING MODEL 205-IT GRAFACON MAGNETIC TAPE DIGITIZING SYSTEM; MODEL 1010AT GRAFACON DIGITAL TABLET; AND MODEL 1500 KENNEDY MAGNETIC TAPE RECORDER; MANUFACTURED BY BOLT BERANEK AND NEWMAN, INCORPORATED. BIDDERS WERE ALLOWED TO OFFER EQUIPMENT OF OTHER MANUFACTURERS PROVIDED IT WAS EQUAL TO THE NAMED BRAND IN ALL MATERIAL RESPECTS. IN THAT CONNECTION, IT SHOULD BE NOTED THAT THE BOLT BERANEK AND NEWMAN EQUIPMENT IS AN ELECTRONIC DIGITIZING SYSTEM AND PARAGRAPH B2 A (3) OF THE TECHNICAL SPECIFICATIONS ADVISED BIDDERS THAT "MECHANICAL DIGITIZERS WHERE EQUIVALENT GRAPHIC VALUES ARE PROVIDED BY DIGITAL POSITION ENCODERS ARE * * * NOT ACCEPTABLE.'

PARAGRAPH A OF THE SPECIFICATIONS SET FORTH A DESIRED DELIVERY SCHEDULE OF 120 CALENDAR DAYS AFTER RECEIPT OF NOTICE OF AWARD AND A REQUIRED DELIVERY TIME OF 150 CALENDAR DAYS AFTER RECEIPT OF NOTICE OF AWARD. THE BIDDERS COULD NOT MEET THE DESIRED DELIVERY TIME THEY WERE PERMITTED TO STATE AN ALTERNATIVE DELIVERY TIME SO LONG AS THE ALTERNATIVE DID NOT EXTEND BEYOND THE REQUIRED DELIVERY TIME. BIDDERS WERE CAUTIONED THAT "BIDS OFFERING DELIVERY THAT WILL NOT CLEARLY FALL WITHIN THE APPLICABLE REQUIRED DELIVERY PERIOD SPECIFIED ABOVE WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED.'

THREE BIDS WERE RECEIVED AND OPENED ON JUNE 6, 1968. YOUR BID, IN THE AMOUNT OF $21,055, WAS LOW, AND OFFERED TO FURNISH YOUR "EDWIN MODEL NO. PF10B-DS.' BENDIX OFFERED TO FURNISH ITS ,DATAGRID DIGITIZER WITH MAGNETIC TAPE RECORDER" AT A PRICE OF $29,671 AND BOLT BERANEK AND NEWMAN OFFERED THE BRAND NAME SYSTEM AT A TOTAL PRICE OF $31,326.

ON JUNE 11, 1968, YOUR BID AND THE BID OF BENDIX RESEARCH LABS WERE SUBMITTED TO A TECHNICAL EVALUATION PANEL TO DETERMINE IF THEY MET THE SPECIFICATIONS IN ALL MATERIAL RESPECTS. THE FINDINGS OF THE PANEL WERE SUBMITTED TO THE CONTRACTING OFFICER ON JUNE 21. IT WAS FOUND THAT YOUR MODEL PF10B-DS FAILED TO MEET THE SPECIFICATIONS ON FOUR REQUIREMENTS INCLUDING THE PROVISION IN PARAGRAPH B2 A (3) OF THE TECHNICAL SPECIFICATIONS THAT MECHANICAL DIGITIZERS WOULD NOT BE ACCEPTABLE. IT WAS FURTHER DETERMINED THAT THE DATAGRID DIGITIZER OFFERED BY BENDIX MET THE SPECIFICATIONS IN ALL MATERIAL RESPECTS. THE CONTRACT WAS AWARDED TO BENDIX ON JUNE 27, 1968.

THE PROTEST AGAINST THE AWARD TO BENDIX IS MADE ON A TWO-FOLD BASIS: FIRST, THAT THE SPECIFICATIONS ARE RESTRICTIVE AND THAT ONLY BOLT BERANEK AND NEWMAN, THE BRAND NAME MANUFACTURER, COULD SUBMIT A TECHNICALLY RESPONSIVE BID; SECOND, THAT THE BID SUBMITTED BY BENDIX WAS NONRESPONSIVE.

RESPECTING THE MATTER OF RESTRICTIVE SPECIFICATIONS, THIS OFFICE HAS LONG RECOGNIZED THAT THE PROCURING ACTIVITY HAS THE PRIMARY RESPONSIBILITY FOR DRAFTING SPECIFICATIONS IN SUCH TERMS AS WILL PERMIT THE BROADEST FIELD OF COMPETITION CONSISTENT WITH THE ACTUAL NEEDS OF THE GOVERNMENT. 17 COMP. GEN. 554; 44 ID. 302. WHERE, AS IS OFTEN THE CASE, A DIFFERENCE IN EXPERT TECHNICAL OPINION ARISES AS TO THE ACTUAL NEEDS OF THE GOVERNMENT, WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THE CONTRACTING AGENCY'S UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY OPINION IS IN ERROR. COMP. GEN. 294. SUCH EVIDENCE HAS NOT BEEN PRESENTED.

CONCERNING THE CONTENTION THAT ONLY THE BRAND NAME MANUFACTURER COULD TECHNICALLY MEET THE SPECIFICATIONS, IT IS ALSO WELL ESTABLISHED THAT THE FACT THAT ONLY ONE FIRM CAN SUPPLY THE NEEDS OF THE GOVERNMENT DOES NOT NECESSARILY EVIDENCE A RESTRICTIVE INVITATION. 45 COMP. GEN. 365. ADDITIONALLY, THE BID BY BENDIX WAS TECHNICALLY RESPONSIVE TO THE SPECIFICATIONS AND OFFERED EQUAL EQUIPMENT.

REGARDING THE SECOND BASIS THAT THE BID SUBMITTED BY BENDIX WAS NONRESPONSIVE, THIS OFFICE FULLY CONCURS. THE TYPEWRITTEN LEGEND ON THE BENDIX PRICE AND SPECIFICATION SHEET "PRICE AND SPECIFICATIONS SUBJECT TO CHANGE WITHOUT NOTICE" CLEARLY CONTRAVENES THE REQUIREMENT OF FIRM BIDS. HOWEVER, SINCE IN THIS PARTICULAR INSTANCE THE CONTRACT HAS ALREADY BEEN PERFORMED, CANCELLATION WOULD SERVE NEITHER THE OTHER BIDDERS NOR THE BEST INTERESTS OF THE GOVERNMENT.

ACCORDINGLY, WHILE YOUR PROTEST ON THE SECOND BASIS IS SUSTAINED, THE ACTION REQUESTED, CANCELLATION, MUST BE DENIED. HOWEVER, WE ARE BRINGING THE MATTER TO THE ATTENTION OF THE SECRETARY OF AGRICULTURE SO THAT SIMILAR SITUATIONS MAY BE AVOIDED IN THE FUTURE.