B-171724, MAR 26, 1971

B-171724, MAR 26, 1971

BID PROTEST - SOLICITATION - DEFECTS DENIAL OF PROTEST OF TYCO, INC., AGAINST THE PROCUREMENT BEING EFFECTED UNDER AN RFP ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA. WHILE THERE IS NO LEGAL RESPONSIBILITY TO FIND AND INFORM THE PROCURING ACTIVITY OF DEFECTS IN THE SOLICITATION, THE PROTESTANT ALLEGING DEFECTS SHOULD BE PREPARED TO VERIFY DEFECTS BY SPECIFIC REFERENCES THAT MAY BE INVESTIGATED.

TO TYCO, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 18, 1971, WITH ENCLOSURES, PROTESTING THE PROCUREMENT BEING EFFECTED UNDER REQUEST FOR PROPOSALS (RFP) NO. DSA-400-71-R-0880, AS AMENDED, ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA.

YOU BELIEVE THE RFP ITEM DESCRIPTION, AS AMENDED, IS DEFECTIVE BUT YOU STATE:

"UNLESS GAO IS WILLING TO ENGAGE INDEPENDENT ENGINEERS TO EVALUATE THE TECHNICAL ASPECT OF THIS AND LIKE PROTESTS, IT IS HARDLY WORTH THE EFFORT TO PROTEST, EXCEPT TO GO ON RECORD AND HAVE GAO NOTE ITS OWN DEFICIENCIES OF ABILITY IN THIS IMPORTANT AREA. LIKEWISE, THERE IS HARDLY ANY NEED TO SUPPLY THE DETAILS WITH THIS LETTER, ONLY TO HAVE THEM TURNED OVER TO THE AGENCY FOR ENLIGHTENMENT.

"IF GAO WILL ENGAGE SUCH ENGINEERS UNDER ITS CONTROL, WE WILL BE MORE THAN GLAD TO POINT OUT THE DEFICIENCIES OF THE REFERENCED DESCRIPTION."

THE CONDITIONS YOU WOULD IMPOSE UPON THE SUBMITTAL OF INFORMATION ARE UNACCEPTABLE TO OUR OFFICE SINCE THEY ARE AT VARIANCE WITH OUR ESTABLISHED BID PROTEST PROCEDURES CODIFIED AT 4 CFR 20. THESE PROCEDURES PROVIDE THAT THE PROTESTING PARTY WILL STATE THE "SPECIFIC GROUNDS" UPON WHICH THE PROTEST IS BASED. FURTHER, THE PROCEDURES PROVIDE FOR DEVELOPING THE FACTUAL BASES OF PROTESTS WITH THE PROCURING AGENCIES AND PROVIDING THEM WITH AN OPPORTUNITY TO PRESENT COMMENTS AND VIEWS. ALSO, OUR PROCEDURES PERMIT INTERESTED PARTIES, PARTICULARLY THOSE WHO MAY BE ADVERSELY AFFECTED BY A DECISION OF OUR OFFICE, TO RESPOND TO THE PROTEST AND OFFER EVIDENCE IN OPPOSITION TO THE PROTEST ALLEGATIONS. SUCH PROCEDURES HAVE BEEN INSTITUTED OUT OF A SENSE OF FAIRNESS AND TO INSURE THAT ALL INTERESTED PARTIES HAVE AN OPPORTUNITY TO BE HEARD AND TO PRESENT THEIR VIEWS. YOU APPARENTLY ARE NOT WILLING TO ABIDE BY THESE PUBLISHED PROCEDURES AND WOULD HAVE THE REVIEW OF THE MATTER LIMITED ONLY TO WHAT YOU CHOOSE TO TENDER IN SUPPORT OF YOUR PROTEST.

IN THE CIRCUMSTANCES, SINCE YOU HAVE INDICATED NO INTENTION TO FURNISH ANY INFORMATION IF YOUR CONDITIONS ARE NOT ACCEPTED, WE HAVE NO ALTERNATIVE BUT TO CONSIDER THE MATTER ON THE PRESENT RECORD.

IN THAT REGARD, THE RECORD SHOWS THAT THE ENGINEERING SUPPORT ACTIVITY, U.S. ARMY MOBILITY EQUIPMENT COMMAND, WHICH IS THE USING ACTIVITY, HAS REVIEWED DATA ON THE GENERAL ELECTRIC (G. E.) PART NUMBER AND CONSIDERS IT AN ACCEPTABLE ITEM.

IT APPEARS FROM YOUR PROTEST THAT YOU MAY BE LABORING UNDER THE IMPRESSION THAT AFTER ISSUANCE OF THE AMENDMENT WHICH ADDED THE G. E. PART NUMBER, OFFERORS WHO HAD NOT ORIGINALLY BID ON THE PROCUREMENT WERE ALLOWED TO SUBMIT OFFERS. THIS IS NOT CORRECT. THE AMENDMENT WAS ISSUED ONLY TO OFFERORS WHO ORIGINALLY HAD BID ON THE PROCUREMENT. ALTHOUGH YOU CONTEND THAT THERE WAS NO SIGNIFICANT BASIS FOR ISSUING THE AMENDMENT, AN EXAMINATION OF THE AMENDMENT SHOWS THAT IT CHANGED THE PURCHASE DESCRIPTION TO INDICATE THAT THE G. E. MOTOR WAS TO BE FURNISHED WITH THE RESILIENT MOUNT/CRADLE. IN THAT CONNECTION, IT IS REPORTED THAT A STUDY OF G. E. CATALOG PAGES INDICATED THAT THE MOUNTING CRADLE COULD BE BOUGHT SEPARATELY FROM THE MOTOR; THAT IT WAS DESIRED TO HAVE OFFERORS CONTRACTUALLY OBLIGATED TO SUPPLY THE MOUNTING CRADLE WHETHER THEY CONSIDERED SUCH CRADLE TO BE PART OF G. E. MOTOR NO. 5KSP39FG2662 OR TO BE A SEPARATE ACCESSORY; AND THAT IN ORDER TO PREVENT ANY MISUNDERSTANDING AS TO WHAT THE USING ACTIVITY REQUIRED, AMENDMENT NO. 0001 DATED JANUARY 15, 1971, WAS ISSUED, REQUIRING THE FURNISHING OF THE RESILIENT MOUNT/CRADLE WITH THE MOTOR AND CONFIRMING CHANGES PREVIOUSLY SPECIFIED IN A CONTRACTING OFFICER'S LETTER OF DECEMBER 4, 1970.

YOU HAVE INDICATED THAT WHEN THE CONTRACTING OFFICER ASKED YOU FOR AN EXPLANATION OF WHAT WAS WRONG IN MAKING THE G. E. PART NUMBER A PART OF THE PURCHASE DESCRIPTION, YOU REFUSED TO FURNISH SPECIFIC INFORMATION. YOU INDICATE THAT IN DOING SO YOU RELIED UPON THE DISCUSSION ON PAGE 5 OF DECISION B-169205 OF JUNE 23, 1970. YOU STATE THAT THE SITUATION DISCUSSED THERE IS A "CARBON COPY" OF THE SITUATION IN YOUR CASE. HOWEVER, THE CITED DECISION BEARS NO RESEMBLANCE TO THE SITUATION INVOLVED IN YOUR PROTEST. WHILE YOU HAVE NOT REFERRED TO ANY PARTICULAR PARAGRAPH OF PAGE 5, WE ASSUME THAT YOU HAVE IN MIND PARAGRAPH 1 THEREOF WHICH READS AS FOLLOWS:

"WE ARE NOT AWARE OF ANY OTHER PROVISION OF THE INVITATION, OR ANY PROVISION OF THE PROCUREMENT REGULATIONS, OR ANY DECISION OF THIS OFFICE, WHICH WOULD OPERATE TO IMPOSE A LEGAL DUTY ON ANY BIDDER TO ASSURE THAT THE GOVERNMENT'S REPRESENTATIVE FOLLOWS PROCEDURE SET OUT IN PARAGRAPH 3 FOR THE DISSEMINATION OF INFORMATION TO ALL OFFERORS. NEITHER DO WE THINK THAT THE FAILURE OF A BIDDER TO SO DEMAND WOULD IN ANY WAY AFFECT THE RESPONSIVENESS OR ACCEPTABILITY OF HIS BID. AS IMPLIED IN OUR EARLIER DECISION ANY SUCH DUTY MUST REST WITH THE AGENT OF THE GOVERNMENT. MUST THEREFORE CONCLUDE THAT NEITHER SUPERIOR DISCUSSED ABOVE, NOR UNITED STATES V HANNA NICKEL SMELTING COMPANY, 253 F. SUPP. 784 (1966), WHICH YOU ALSO CITE AND WHICH DEALS WITH ESTOPPEL BY ACQUIESCENCE, HAVE ANY APPLICATION TO A CORRECT DISPOSITION OF THIS MATTER."

IN VIEW OF YOUR STATEMENT TO THE EFFECT THAT IT IS NOT YOUR RESPONSIBILITY TO FIND OR INFORM ON DEFECTS IN THE PURCHASE DESCRIPTION, PARTICULARLY AS TO THE CITING OF THE G. E. PART NUMBER, WE ASSUME THAT YOU ARE REFERRING TO THAT PART OF THE FOREGOING PARAGRAPH WHICH STATES, "WE ARE NOT AWARE OF ANY OTHER PROVISION OF THE INVITATION, OR ANY PROVISION OF THE PROCUREMENT REGULATIONS, OR ANY DECISION OF THIS OFFICE, WHICH WOULD OPERATE TO IMPOSE A LEGAL DUTY ON ANY BIDDER TO ASSURE THAT THE GOVERNMENT'S REPRESENTATIVE FOLLOWS PROCEDURE SET OUT IN PARAGRAPH 3 FOR THE DISSEMINATION OF INFORMATION TO ALL OFFERORS." ALTHOUGH IT IS TRUE THAT YOUR FIRM HAS NO RESPONSIBILITY TO "FIND OR INFORM ON DEFECTS FOR DGSC," AND IN THAT SENSE IT WAS NOT NECESSARY THAT YOU PROTEST THE PURCHASE DESCRIPTION, ONCE YOU, OR ANY PROTESTANT FOR THAT MATTER ALLEGES THAT THERE IS A DEFECT IN A SOLICITATION, HE SHOULD BE PREPARED TO BE SPECIFIC IN HIS ALLEGATIONS IF HE EXPECTS A PROPER INVESTIGATION AND CONSIDERATION OF HIS CHARGES TO BE MADE. OBVIOUSLY, NO SPECIFIC INQUIRY TO AN ALLEGATION OF DEFECT CAN BE MADE IF THE DETAILS OF THE ALLEGATION ARE NOT SET FORTH.

SINCE NO AWARD HAS BEEN MADE AND A NEGOTIATED PROCUREMENT IS INVOLVED, OUR OFFICE HAS RESTRICTED ITSELF IN ITS RECITATION OF THE FACTS. 49 COMP. GEN. 98 (1969). HOWEVER, UPON AN EXAMINATION OF THE RECORD FURNISHED BY THE CONTRACTING AGENCY, WE FIND NO LEGAL BASIS TO OBJECT TO THE ADMINISTRATION OF THIS PROCUREMENT.

ACCORDINGLY, THE PROTEST IS DENIED.