B-171950, JUL 7, 1971

B-171950, JUL 7, 1971

BID PROTEST - BID RESPONSIVENESS SPECIFICATIONS DECISION DENYING PROTEST AGAINST AWARD OF A CONTRACT TO MICROWAVE CAVITY LABORATORIES, INC. (MCL), UNDER AN RFP ISSUED BY THE ARMY MISSILE COMMAND FOR 38 POWER GENERATORS AND AMPLIFIERS SUBSEQUENTLY MODIFIED TO 56 GENERATORS ONLY. CONTRARY TO PROTESTANT'S ALLEGATIONS, THERE WAS NO REQUIREMENT IN THE RFP OR AMENDMENTS FOR MICRODOT COMPONENTS AND SINCE THE APPLICABLE SPECIFICATION (MISSILE INTERIM SPECIFICATION - 10240-A) IS OBVIOUSLY A PERFORMANCE SPECIFICATION, COMPLIANCE THEREWITH WOULD NOT DEPEND UPON THE CASE OF ANY PARTICULAR MANUFACTURER'S PARTS IN THE ABSENCE OF SUCH RESTRICTION ELSEWHERE IN THE APPLICABLE SPECIFICATIONS. SUCCESSFUL BIDDER'S OFFER WAS THEREFORE RESPONSIBLE.

TO PAUL & GORDON, ESQUIRES:

FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF MICRODOT, INC., AGAINST AWARD OF A CONTRACT TO MICROWAVE CAVITY LABORATORIES, INC. (MCL), BY THE UNITED STATES ARMY MISSILE COMMAND, PURSUANT TO REQUEST FOR PROPOSALS (RFP) NO. DAAH01-71-R-0308.

THE RFP WAS ISSUED IN OCTOBER 1970 FOR THE PROCUREMENT OF 38 RF POWER GENERATORS AND 38 RF POWER AMPLIFIERS IN ACCORDANCE WITH MISSILE INTERIM SPECIFICATIONS (MIS)-10240A AND 10277A, DATED JULY 10, 1970, RESPECTIVELY. THE RFP IDENTIFIED THE ITEMS AS FOLLOWS:

"SECTION E - SUPPLIES/SERVICES & PRICES

ITEM NO.

0001 (A) FSN:4931-128-1443

(B) NOUN: GENERATOR, RF POWER

(C) APN: 10240

(D) MFG/PN:

0002 (A) FSN: 4931-130-S376

(B) NOUN: AMPLIFIER, RF POWER

(C) APN: 10277

(D) MFG/PN:

SECTION F - DESCRIPTION/SPECIFICATIONS

MIS-10240A DTD 10 JULY 1970

MIS-10277A DTD 10 JULY 1970"

PRIOR TO THE CLOSING DATE, AMENDMENT NO. 1 WAS ISSUED, DELETING THE REQUIREMENT FOR THE AMPLIFIERS, INCREASING THE NUMBER OF GENERATORS TO 56, AND DELETING THE SPECIFICATION SECTION OF THE SCHEDULE AND SUBSTITUTING THE FOLLOWING:

"MIS-10240A DATED 10 JULY 1970 DWG A7913442 DATED 15 DEC 70 (2 SHEETS)"

SUBSEQUENTLY, AMENDMENT NO. 2 ADDED A REQUIREMENT FOR FIRST ARTICLE TESTING AND APPROVAL AND REVISED THE DELIVERY SCHEDULE.

ORIGINALLY, THE RFP WAS ISSUED TO MCL AS A SOLE-SOURCE PROCUREMENT. HOWEVER, MICRODOT LEARNED OF THE PROCUREMENT AND SUBMITTED A PROPOSAL. AFTER TECHNICAL AND PRICING NEGOTIATIONS, BOTH PROPOSALS WERE DETERMINED ACCEPTABLE. AWARD WAS MADE TO MCL ON JANUARY 29, 1971, AT A PRICE OF $27,800 LESS THAN MICRODOT'S.

BASICALLY, IT IS YOUR CONTENTION THAT MCL'S PROPOSAL WAS NONRESPONSIVE IN THAT IT WAS BASED ON THE USE OF PARTS OTHER THAN THOSE REQUIRED UNDER THE SPECIFICATIONS. THEREFORE, YOU ALLEGE THAT THE RESULTING CONTRACT IS INCONSISTENT WITH RESPECT TO THE APPLICABLE SPECIFICATIONS AND SHOULD BE CONSIDERED A NULLITY BECAUSE OF THIS UNCERTAINTY, CITING UNITED STATES V ELLICOTT, 223 U.S. 524 (1911). IN THIS CONNECTION, YOU POINT OUT THAT THE APN 10240 GENERATOR INCLUDES VARIOUS MICRODOT COMPONENTS, SOME OF WHICH WERE SPECIFICALLY ENUMERATED IN THE DRAWING ADDED TO THE SPECIFICATIONS BY AMENDMENT NO. 1; THAT MCL'S TECHNICAL PROPOSAL NO. T 1011 INCLUDES OTHER THAN THE SPECIFIED MICRODOT PARTS; AND THAT THE AWARD DOCUMENT INCORPORATES THESE CONFLICTING SPECIFICATIONS. IN ADDITION, YOU CONTEND THAT IN ACCEPTING MCL'S PROPOSAL INCORPORATING OTHER THAN MICRODOT PARTS, AND IN FAILING TO ADVISE MICRODOT OF THE CHANGE IN THE REQUIREMENTS, THE ARMY VIOLATED ASPR 3-805.1, WHICH PROVIDES THAT WHEN DURING NEGOTIATIONS, A DECISION IS MADE TO RELAX OR OTHERWISE MODIFY THE REQUIREMENTS, NOTICE THEREOF BY AMENDMENT SHALL BE GIVEN TO EACH PROSPECTIVE CONTRACTOR.

FURTHER, YOU CONTEND THAT MICRODOT WAS PREJUDICED IN PRICING ITS PROPOSAL BECAUSE MCL WAS PERMITTED TO IGNORE THE CLEAR REQUIREMENTS OF AMENDMENT NO. 1 TO USE SPECIFIED MICRODOT PARTS WHILE MICRODOT WAS REQUIRED TO BASE ITS PROPOSAL UPON THE USE OF THOSE COMPONENTS. IN THIS CONNECTION, YOU ASSERT THAT MICRODOT COULD HAVE REDUCED THE PRICE ON ITS OWN COMPONENTS BY ELIMINATING CERTAIN FEATURES OF THE SPECIFIED COMPONENTS NOT NECESSARY TO MEET THE PERFORMANCE SPECIFICATIONS. ALSO, YOU CLAIM THAT YOUR PRICE COULD HAVE BEEN REDUCED IF MICRODOT HAD BEEN AWARE THAT LESS EXPENSIVE PARTS THAN THOSE SPECIFIED IN THE DRAWING COULD HAVE BEEN USED. YOU CONTEND THAT THESE REDUCTIONS WOULD HAVE AMOUNTED TO AT LEAST $608 PER UNIT, MAKING YOUR TOTAL PRICE LOWER THAN THAT OF MCL.

IN ADDITION, YOU CONTEND THAT MICRODOT WAS PREJUDICED BECAUSE BEFORE IT RECEIVED A COPY OF THE RFP MCL HAD ASKED IT TO QUOTE A PRICE FOR THE FIRST FIVE MICRODOT COMPONENTS LISTED ON THE DRAWING. THIS LED MICRODOT TO BELIEVE THAT MCL WOULD HAVE TO CONSIDER THE PRICE FOR THOSE COMPONENTS IN DETERMINING ITS TOTAL PRICE. FURTHERMORE, MICRODOT HAD OBTAINED QUOTES FROM THE VENDORS OF THE OTHER SPECIFIED PARTS AND ASSUMED MCL HAD BEEN QUOTED THE SAME PRICES. THUS, MICRODOT COMPUTED ITS PRICE, INCLUDING PROFIT, UNDER THE ASSUMPTION THAT IT KNEW THE BASIC COSTS MCL WAS REQUIRED TO CONSIDER. HOWEVER, THESE ASSUMPTIONS PROVED TO BE ERRONEOUS BECAUSE MCL WAS PERMITTED TO DEVIATE FROM WHAT MICRODOT REGARDED AS THE RFP REQUIREMENTS.

FINALLY, IT IS YOUR POSITION THAT THE ARMY'S ATTEMPT TO PROCURE SOLE SOURCE FROM MCL WAS OF QUESTIONABLE PROPRIETY IN VIEW OF AN EARLIER PROCUREMENT OF THE SAME GENERATORS AND AMPLIFIERS. YOU REFER TO A CONTRACT AWARDED TO MCL IN 1969 UNDER WHICH MCL SUBCONTRACTED WITH MICRODOT FOR THE GENERATORS. YOU STATE THAT ALTHOUGH MICRODOT PRODUCED THE GENERATORS IN ACCORDANCE WITH SPECIFICATION MIS 10240 WITHOUT DIFFICULTY, MCL HAD DIFFICULTY IN MEETING THE REQUIREMENT FOR THE AMPLIFIERS. MOREOVER, YOU REPORT THAT ALTHOUGH MICRODOT WAS TOLD THERE WAS AN ADDITIONAL REQUIREMENT FOR THE GENERATORS AND AMPLIFIERS, WHEN MICRODOT MADE INQUIRY SOME THREE WEEKS PRIOR TO ISSUANCE OF THE RFP TO MCL IT WAS TOLD THAT NO REQUIREMENT FOR THE ITEMS THEN EXISTED.

THE ARMY STATES THAT THERE WAS NO REQUIREMENT IN THE RFP OR AMENDMENTS FOR MICRODOT COMPONENTS AND, THEREFORE, MCL'S PROPOSAL WAS RESPONSIVE AND TECHNICALLY ACCEPTABLE. AS BACKGROUND, IT IS REPORTED THAT UNDER THE PREVIOUS CONTRACT THE APPLICABLE SPECIFICATION FOR THE GENERATOR WAS MISSILE INTERIM SPECIFICATION (MIS) 10240 (SUPERSEDED ON JULY 10, 1970, BY MIS-10240A); THAT FIVE DEVIATIONS TO THE SPECIFICATION WERE GRANTED IN ACCEPTING THE GENERATOR; AND THAT THE FIVE DEVIATIONS GRANTED THEREUNDER RELATED TO THE MICRODOT PARTS LISTED IN THE DRAWING INVOLVED IN THE SUBJECT PROCUREMENT. ALTHOUGH THE NUMBER 10240 WAS INSERTED OPPOSITE THE ARMY PART NUMBER DESIGNATION "APN" ON THE PRINTED RFP FORM, THIS NUMBER REPRESENTED THE MISSILE INTERIM SPECIFICATION. IN THIS CONNECTION, IT IS REPORTED THAT NO ARMY PART NUMBER HAS BEEN ASSIGNED TO THE GENERATOR CALLED FOR UNDER MIS 10240A SINCE IT IS AN INTERIM SPECIFICATION DEVELOPED BY AND FOR THE ARMY MISSILE COMMAND AND NOT APPROVED FOR GENERAL ARMY USE. FURTHERMORE, THE ARMY POINTS OUT THAT MIS-10240A, WHICH IS DESIGNATED UNDER SECTION F, DESCRIPTION/SPECIFICATIONS, AND WAS ATTACHED TO THE RFP, IS A FORM, FIT AND FUNCTION SPECIFICATION, SETTING FORTH PERFORMANCE CHARACTERISTICS AND PARAMETERS.

SUBSEQUENT TO SUBMISSION OF PROPOSALS BY MCL AND MICRODOT, IT WAS DETERMINED THAT THE AMPLIFIERS WERE NOT NEEDED AND THE NUMBER OF GENERATORS SHOULD BE INCREASED. THEREFORE, AMENDMENT NO. 1 WAS ISSUED. DRAWING NO. 7913442, DATED DECEMBER 15, 1970, WAS DEVELOPED AND ADDED TO THE SPECIFICATIONS BY THE AMENDMENT TO ASSURE THAT THE GENERATOR COMPONENTS LISTED THEREON, WHICH PREVIOUSLY HAD BEEN STORED IN THE AMPLIFIER, WOULD BE FURNISHED AS PART OF THE GENERATOR ASSEMBLY.

MCL RESPONDED TO THE SOLICITATION ON NOVEMBER 24, 1970, SUBMITTING A TECHNICAL PROPOSAL CONSISTING OF DETAILS OF CONSTRUCTION, CONFIGURATION, PERFORMANCE, QUALITY AND RELIABILITY. IT ALSO ACKNOWLEDGED AMENDMENTS NOS. 1 AND 2 AND, AFTER NEGOTIATIONS, AGREED TO CONFORM TO MIS-10240A WITHOUT EXCEPTION.

MICRODOT'S PROPOSAL WAS SUBMITTED ON NOVEMBER 30, 1970, ALONG WITH A COVER LETTER OFFERING GENERATORS IDENTICAL WITH THOSE FURNISHED UNDER ITS PREVIOUS SUBCONTRACT WITH MCL. THE ARMY REPORTS THAT MICRODOT WAS TOLD THAT SINCE FIVE DEVIATIONS WERE GRANTED UNDER THE PREVIOUS CONTRACT, IT HAD BEEN DETERMINED THAT ITS OFFER DID NOT CONFORM TO MIS 10240A. MOREOVER, IT IS REPORTED THAT MICRODOT WAS TOLD THAT THE PARTS WERE LISTED ON THE DRAWING TO ASSURE THAT ALL COMPONENTS OF THE GENERATOR WOULD BE PART OF THE ASSEMBLY. BY LETTER DATED JANUARY 22, 1971, MICRODOT AGREED TO COMPLY WITH MIS-10240A.

IN ADDITION TO ITS ARGUMENT THAT NEITHER MIS-10240A NOR THE DRAWING REQUIRED MICRODOT PARTS, THE ARMY RELIES ON PARAGRAPH C-20 OF THE RFP WHICH PROVIDES THAT WHERE NO ARMY PART NUMBER IS LISTED IN THE ITEM DESCRIPTION AND THE ITEM IS DESCRIBED ONLY BY MANUFACTURER'S PART NUMBER, OFFERORS MAY SUBSTITUTE OTHER PARTS THAT ARE CERTIFIED INTERCHANGEABLE WITH THE ITEM BEARING THE PART NUMBER. THE ARMY ALSO POINTS OUT THAT THIS PARAGRAPH PROVIDES THAT SOURCE NOTES ON DRAWINGS, OTHER THAN CONTROLLED SOURCE DRAWINGS, ARE FOR THE CONVENIENCE OF THE PROCURING ACTIVITY AND ARE NOT TO BE CONSTRUED AS RESTRICTING THE SOURCE OF PROCUREMENT.

IN REBUTTAL TO THE ARMY'S POSITION CONCERNING PARAGRAPH C-20, YOU ARGUE THAT IT IS NOT APPLICABLE SINCE THE SCHEDULE LISTED AN ARMY PART NUMBER AND NOT A MANUFACTURER'S PART NUMBER. YOU ALSO ARGUE THAT THE DRAWING CAN ONLY BE CONSTRUED AS IDENTIFYING THE VARIOUS MICRODOT COMPONENTS OF THE ARMY PART NUMBER. IN THIS REGARD, YOU STATE THAT IN TELEPHONE CONVERSATIONS WITH TECHNICAL PERSONNEL AT THE REDSTONE ARSENAL, MICRODOT WAS SPECIFICALLY ADVISED THAT IT COULD NOT DEVIATE FROM THE COMPONENTS SPECIFIED IN THE DRAWING.

IN SUPPORT OF YOUR CONTENTION THAT THERE IS AN APPLICABLE ARMY PART NUMBER AND THAT IT WAS LISTED IN THE RFP, YOU HAVE FURNISHED OUR OFFICE A COPY OF PAGE 17 OF THE DEPARTMENT OF THE ARMY SUPPLY CATALOG IDENTIFICATION LIST. UNDER THE SCHEDULE OF THE RFP THE GENERATOR WAS DESIGNATED BY FEDERAL STOCK NUMBER (FSN) 4931-128-1443 IN ADDITION TO THE APN DESIGNATION, AND IT IS YOUR CONTENTION THAT THE REFERENCE TO THIS NUMBER IN THE IDENTIFICATION LIST PROVES THE EXISTENCE OF AN ARMY PART NUMBER FOR THE GENERATOR. THE FSN CONTAINS THE REFERENCE: "GENERATOR, RADIO FREQUENCY POWER: (CODE 18876, NO. MIS 10240)."

WITH REGARD TO THE LATTER POINT, WE FAIL TO SEE THAT THE REFERENCE UNDER THE FSN SUPPORTS YOUR ARGUMENT THAT THERE IS AN APPLICABLE ARMY PART NUMBER WHICH WAS LISTED IN THE RFP SCHEDULE. WE UNDERSTAND THAT "CODE 18876" DESIGNATES REDSTONE ARSENAL. AS TO "NO. MIS 10240," IT IS OBVIOUS THAT THIS REFERS TO THE ARMY MISSILE COMMAND INTERIM SPECIFICATION APPLICABLE TO THIS PROCUREMENT. THEREFORE, WE ARE UNABLE TO CONCLUDE THAT THERE WAS AN APPLICABLE ARMY PART NUMBER WHICH REQUIRED A GENERATOR COMPOSED OF MICRODOT PARTS. FURTHERMORE, WE NOTE THAT IN BOTH MICRODOT'S INITIAL RESPONSE TO THE RFP AND IN ITS LETTER OF JANUARY 22, 1971, IT OFFERED A PROPOSAL IN COMPLIANCE WITH MIS 10240A AND NOT APN 10240. SINCE MIS-10240A IS OBVIOUSLY A PERFORMANCE SPECIFICATION, COMPLIANCE THEREWITH WOULD NOT DEPEND UPON THE USE OF ANY PARTICULAR MANUFACTURER'S PARTS IN THE ABSENCE OF SUCH RESTRICTION ELSEWHERE IN THE APPLICABLE SPECIFICATIONS.

ALTHOUGH THE DRAWING ADDED BY AMENDMENT NO. 1 LISTED VARIOUS MICRODOT PARTS, IT APPEARS FROM THE CIRCUMSTANCES REPORTED ABOVE THAT IT WAS INCLUDED FOR THE PURPOSE STATED BY THE ARMY. SINCE THE PARTS REFERENCED THEREIN WERE NOT ACCEPTABLE BECAUSE OF THE DEVIATIONS UNDER THE PRIOR CONTRACT, WE CANNOT ACCEPT THE ARGUMENT THAT THE DRAWING REQUIRED PROPOSALS BASED UPON THEIR USE. WHILE MCL MIGHT WELL HAVE BEEN MISLED BY THEIR REFERENCE IN THE DRAWING (ALTHOUGH IT APPARENTLY WAS NOT), CERTAINLY MICRODOT WAS AWARE THAT THEY WERE UNACCEPTABLE UNDER THE PRIOR CONTRACT AND, AS NOTED ABOVE, THE ARMY REPORTS MICRODOT WAS SO ADVISED IN CONNECTION WITH ITS PROPOSAL UNDER THE SUBJECT RFP.

SINCE WE FIND NO BASIS FOR CONCLUDING THAT THE RFP, AS AMENDED, REQUIRED PROPOSALS BASED UPON THE USE OF MICRODOT PARTS, WE CANNOT AGREE WITH YOUR CONTENTION THAT MCL'S OTHERWISE ACCEPTABLE TECHNICAL PROPOSAL WAS NONRESPONSIVE. FURTHERMORE, WE SEE NO BASIS FOR CONCLUDING THAT MICRODOT WAS MISLED BY THE PROVISIONS OF THE RFP, OR THAT IT WAS DENIED THE OPPORTUNITY TO COMPETE ON AN EQUAL BASIS. WHILE YOU HAVE CITED CIRCUMSTANCES WHICH INDICATE THAT THE ATTEMPTED SOLE SOURCE OF THIS PROCUREMENT WITH MCL WOULD NOT HAVE BEEN JUSTIFIED, THIS WAS RECTIFIED AND HAS NO BEARING ON THE VALIDITY OF THE AWARD.

ACCORDINGLY, MICRODOT'S PROTEST IS DENIED.