B-164083, DEC. 13, 1968

B-164083, DEC. 13, 1968

TO SYSTRON-DONNER CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE SOLE-SOURCE PROCUREMENT OF ELECTRONIC FREQUENCY COUNTERS AND PLUG-IN UNITS FROM THE HEWLETT-PACKARD COMPANY BY THE NAVY PURCHASING OFFICE, BROOKLYN, NEW YORK, UNDER REQUEST FOR PROPOSALS NO. N-00140-68-R-0503, ISSUED MARCH 28, 1968.

THE SUBJECT PROCUREMENT WAS INITIATED BY A REQUISITION SENT TO THE NAVY PURCHASING OFFICE (NPO) BY THE NAVAL SHORE ELECTRONICS ENGINEERING ACTIVITY (NAVSEEACT), PHILADELPHIA, PENNSYLVANIA. THE REQUISITION STATED THAT BECAUSE THE EQUIPMENT WAS URGENTLY NEEDED THE PROCUREMENT HAD BEEN ASSIGNED DESIGNATOR 4 UNDER THE UNIFORM MATERIAL ISSUE PRIORITY SYSTEM AND THAT HEWLETT-PACKARD WAS THE ONLY KNOWN SOURCE FOR THE COUNTERS AND PLUG- IN UNITS. WITH REGARD TO THE REASON FOR SOLE SOURCING THESE ITEMS, NAVSEEACT ADVISED NPO ON FEBRUARY 15, 1968, THAT THEY WERE BEING PROCURED FOR USE WITH EXISTING HEWLETT-PACKARD EQUIPMENT AT VARIOUS EAST COAST FACILITIES AND ANY OTHER TYPE OF EQUIPMENT WOULD NOT BE COMPATIBLE. THEREFORE, ONLY HEWLETT-PACKARD RECEIVED A COPY OF THE RFP. HEWLETT- PACKARD SUBMITTED ITS OFFER ON APRIL 5, 1968, AND AFTER THE REASONABLENESS OF ITS PRICE WAS VERIFIED AN AWARD WAS MADE ON MAY 17, 1968. ALTHOUGH YOU PROTESTED THE PROCUREMENT PRIOR TO THE AWARD, THE NAVY MADE THE AWARD BECAUSE OF THE URGENCY OF THE PROCUREMENT AFTER NOTIFICATION TO OUR OFFICE PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION 2-407.9.

IT IS YOUR CONTENTION THAT THE JUSTIFICATION FOR SOLE-SOURCING THIS EQUIPMENT IS NOT VALID SINCE THE EQUIPMENT IS NOT IN FACT BEING PURCHASED TO BE USED INTERCHANGEABLY WITH EXISTING EQUIPMENT BUT IS BEING PROCURED AS SETS BY VARIOUS USING ACTIVITIES. IN SUPPORT OF THIS CONTENTION YOU STATE THAT YOU CONTACTED THE USING ACTIVITIES IN CHARLESTON, BOSTON, AND PHILADELPHIA, AND WERE ADVISED THAT THEY REQUISITIONED THE EQUIPMENT EITHER TO INCREASE THEIR CAPABILITY WITH MORE TEST EQUIPMENT OR TO GIVE THEM GREATER MEASUREMENTS, BUT NOT AS REPLACEMENTS. ALTHOUGH YOU CONCEDE THAT YOUR EQUIPMENT IS NOT COMPATIBLE WITH THE HEWLETT-PACKARD EQUIPMENT, YOU CONTEND THAT YOUR EQUIPMENT MEETS OR EXCEEDS THE HEWLETT-PACKARD EQUIPMENT IN PERFORMANCE AND, THEREFORE, YOU SHOULD HAVE BEEN GIVEN AN OPPORTUNITY TO MAKE AN OFFER.

THE QUESTION IN THIS CASE IS WHETHER THE NAVY PROPERLY RESTRICTED THIS PROCUREMENT TO A SOLE SOURCE, HEWLETT-PACKARD. BEFORE ISSUING THE RFP AND BEFORE ANY PROTEST HAD BEEN MADE BY YOUR FIRM THE NPO QUERIED NAVSEEACT CONCERNING THE SOLE-SOURCE NOTATION ON THE REQUISITION. IN REPLY, NAVSEEACT ADVISED THAT THE FREQUENCY COUNTERS WERE BEING PURCHASED FOR USE WITH HEWLETT-PACKARD PLUG-IN UNITS WHICH WERE PRESENTLY BEING USED AT VARIOUS EAST COAST ACTIVITIES AND, SIMILARLY, THE PLUG-IN UNITS WERE BEING PURCHASED FOR USE WITH HEWLETT PACKARD FREQUENCY COUNTERS THEN BEING USED AT VARIOUS EAST COAST ACTIVITIES; AND THAT NO EQUIPMENT OTHER THAN HEWLETT -PACKARD WOULD BE COMPATIBLE WITH THE EXISTING EQUIPMENT. WITH REGARD TO YOUR STATEMENT THAT THE THREE USING ACTIVITIES ADVISED YOU THAT THE REASON FOR THE SOLE-SOURCE PROCUREMENT WAS NOT INTERCHANGEABILITY, THE NAVY HAS FURNISHED OUR OFFICE A CONTRARY REPORT TO THE EFFECT THAT THESE ACTIVITIES CONFIRMED THAT THEY DID NOT INTEND TO BUY SETS OF COUNTERS AND PLUG-IN UNITS, BUT WERE BUYING EQUIPMENT TO BE USED IN CONJUNCTION WITH EXISTING EQUIPMENT.

THE DRAFTING OF SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT, AS WELL AS THE DETERMINATION OF WHETHER PRODUCTS OFFERED MEET THE SPECIFICATIONS, IS PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY CONCERNED, TO BE QUESTIONED BY OUR OFFICE ONLY WHEN NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. 38 COMP. GEN. 190. IN THE INSTANT CASE, THE JUSTIFICATION FOR SOLE-SOURCING THIS PROCUREMENT WAS QUESTIONED AND RESOLVED BY THE PROCURING ACTIVITY PRIOR TO ISSUING THE RFP. ALTHOUGH YOU SUBMITTED WHAT YOU CONSIDER EVIDENCE THAT "SETS" WERE BEING PROCURED, THE USING ACTIVITIES HAVE EMPHATICALLY DENIED THIS AND INSIST THAT THE EQUIPMENT IS BEING PROCURED TO BE USED IN CONJUNCTION WITH EXISTING EQUIPMENT AND, THEREFORE, MUST BE OF THE SAME BRAND TO BE COMPATIBLE. THESE CIRCUMSTANCES, WE DO NOT BELIEVE OUR OFFICE WOULD BE JUSTIFIED IN QUESTIONING THE SOLE-SOURCE DETERMINATION.