B-175761, OCT 12, 1972

B-175761, OCT 12, 1972

BID PROTEST - GOVERNMENT NEEDS - CONFORMITY TO REQUIREMENT DECISION DENYING THE PROTEST OF COOKE VACUUM PRODUCTS, INC., AGAINST AWARD OF A CONTRACT FOR SUPPLY OF AN EVAPORATION CONTROL SYSTEM TO VEECO INSTRUMENTS, INC., UNDER AN RFP ISSUED BY THE AIR FORCE ACADEMY, COLO. DETERMINATIONS OF THE GOVERNMENT'S MINIMUM OR ACTUAL NEEDS OR WHETHER EQUIPMENT OFFERED BY A BIDDER CONFORMS TO THE DETAILED REQUIREMENTS ARE FOR THE ADMINISTRATIVE AGENCY, AND SUCH DETERMINATIONS WILL NOT BE DISTURBED IN THE ABSENCE OF CAPRICIOUSNESS OR ARBITRARINESS. 49 COMP. GEN. 156 (1969).

TO COOKE VACUUM PRODUCTS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 20, 1972, PROTESTING AGAINST THE AWARD OF A CONTRACT TO VEECO INSTRUMENTS, INC. (VEECO), UNDER RFP F05611-72-R-0059, ISSUED BY THE AIR FORCE ACADEMY, COLORADO.

THE INSTANT CONTRACT IS FOR THE SUPPLY OF AN EVAPORATION CONTROL SYSTEM. THE AIR FORCE ACADEMY INITIALLY SOUGHT TO PROCURE THIS SYSTEM UNDER A PRIOR SOLICITATION, IFB F05611-71-B-0112. YOUR BID WAS THE LOWEST OF THE THREE SUBMITTED IN RESPONSE TO THE IFB, AND ON JULY 12, 1971, YOU WERE AWARDED CONTRACT NO. F05611-72-C-0216 FOR THE SUPPLY OF THE SYSTEM. AMONG THE "MINIMUM ESSENTIAL REQUIREMENTS SPECIFICATIONS" OF THE IFB WAS THE FOLLOWING:

"PERFORMANCE

SYSTEM SHALL BE CAPABLE OF ULTIMATE PRESSURE OF 5X10-8 TORR MEASURED IN THE BELL JAR. SYSTEM SHALL REACH 8X10-8 TORR MEASURED IN THE BELL JAR 20 MINUTES AFTER CROSS OVER FROM THE ROUGHING CYCLE."

THE IFB AND RESULTANT CONTRACT ALSO PROVIDED: "FINAL INSPECTION AND ACCEPTANCE SHALL BE AT USAF ACADEMY, COLORADO AS SOON AS POSSIBLE AFTER DELIVERY TO THE GOVERNMENT."

THE RECORD FURNISHED OUR OFFICE BY THE AIR FORCE SHOWS THAT DURING FINAL INSPECTION AND TESTING YOUR EVAPORATION CONTROL SYSTEM FAILED TO MEET THE ABOVE-QUOTED PERFORMANCE REQUIREMENT. AFTER A NUMBER OF UNSUCCESSFUL ATTEMPTS TO CORRECT THIS, AND OTHER, DEFICIENCIES YOUR CONTRACT WAS TERMINATED FOR DEFAULT. YOU HAVE APPEALED FROM THIS DECISION TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS.

ON MARCH 3, 1972, RFP F05611-72-R-0059 WAS ISSUED TO THE OTHER TWO FIRMS WHICH HAD RESPONDED TO THE IFB, FOR THE PURPOSE OF REPROCURING THE SYSTEM. THE SPECIFICATIONS OF THIS SOLICITATION WERE IDENTICAL TO THOSE OF THE PRIOR IFB. VEECO SUBMITTED THE LOWER OFFER IN THE AMOUNT OF $19,375, WHICH WAS THE SAME AS ITS BID UNDER THE PRIOR SOLICITATION. VIEW THEREOF, AND THE FACT THAT COMPETITION HAD BEEN OBTAINED IN BOTH THE INITIAL AND REPROCUREMENT SOLICITATIONS, THE CONTRACTING OFFICER DETERMINED VEECO'S PRICE TO BE FAIR AND REASONABLE. ACCORDINGLY, ON MARCH 23, 1972, CONTRACT NO. F05611-72-C 0431 WAS AWARDED VEECO FOR THE SYSTEM. BY LETTER OF APRIL 3, 1972, YOU WERE ADVISED BY THE AIR FORCE THAT THE AWARD TO VEECO RESULTED IN THE ASSESSMENT AGAINST YOU OF $425 IN EXCESS COSTS.

ON APRIL 20, 1972, YOU PROTESTED TO OUR OFFICE AGAINST THE AWARD TO VEECO ON THE BASIS THAT:

"*** THE VACUUM PERFORMANCE REQUIREMENT CANNOT BE MET BY VEECO, IS IMPRACTICAL TO ACHIEVE AND NOT TO THE BEST INTEREST OF THE DEPARTMENT OF THE AIR FORCE."

IN THIS REGARD, THE CONTRACTING OFFICER'S TECHNICAL ADVISOR HAS EXPRESSED THE OPINION THAT THE SPECIFICATIONS CONTAINED IN THE VEECO CONTRACT "DO NOT EXCEED THE STATE OF THE ART AND ARE NOT IMPOSSIBLE TO MEET WITH PROPER SYSTEM DESIGN." FURTHERMORE, A TECHNICAL EVALUATION OF THE DESCRIPTIVE LITERATURE AND WORKING DRAWINGS SUBMITTED BY VEECO, WHICH WAS CONDUCTED BY THE TECHNICAL ADVISOR, LED HIM TO CONCLUDE THAT THE PROPOSED SYSTEM "MEETS OR EXCEEDS ALL SPECIFICATIONS" IN THE SOLICITATION.

WE OBSERVE THAT THE PERFORMANCE REQUIREMENT WHICH WAS CONTAINED IN THE INITIAL AND REPROCUREMENT SOLICITATIONS WAS DESIGNATED A "MINIMUM ESSENTIAL REQUIREMENT" OF THE AIR FORCE ACADEMY; THAT IT IS THE POSITION OF THE AIR FORCE THAT THE REQUIREMENT IS POSSIBLE TO ACHIEVE AND THAT THE SYSTEM OFFERED BY VEECO WILL SATISFY THAT REQUIREMENT.

IN REGARD TO YOUR CONTENTION THAT THE VACUUM PERFORMANCE REQUIREMENT IS "NOT TO THE BEST INTEREST OF THE DEPARTMENT OF THE AIR FORCE," WE HAVE STATED THAT:

"*** IT IS A WELL ESTABLISHED PRINCIPLE THAT THE DETERMINATION OF THE GOVERNMENT'S MINIMUM OR ACTUAL NEEDS IS A MATTER PRIMARILY FOR ADMINISTRATIVE DETERMINATION AND WILL NOT BE DISTURBED BY THIS OFFICE IN THE ABSENCE OF EVIDENCE THAT THE AGENCY ACTED ARBITRARILY. 49 COMP. GEN. 156, 160 (1969)." B-174295, APRIL 6, 1972.

SIMILARLY, IN CONNECTION WITH YOUR ARGUMENT THAT THE VACUUM PERFORMANCE REQUIREMENT CANNOT BE MET BY VEECO, IT HAS BEEN THE POSITION OF OUR OFFICE THAT:

"*** THE FUNCTION OF DETERMINING WHETHER EQUIPMENT OFFERED BY A BIDDER CONFORMS TO THE DETAILED REQUIREMENTS IS ONE FOR EXERCISE BY THE CONTRACTING AND ADMINISTRATIVE OFFICIALS OF THE GOVERNMENT AND, WHEN A DETERMINATION IS MADE IN THE EXERCISE OF SUCH FUNCTION, IT IS CONTROLLING IN THE ABSENCE OF CAPRICIOUS OR ARBITRARY ACTION. 43 COMP. GEN. 77; 40 ID. 35." B-164615, AUGUST 26, 1968.

FROM OUR REVIEW OF THE RECORD, WE ARE UNABLE TO CONCLUDE THAT THE DETERMINATIONS BY THE AIR FORCE THAT THE PERFORMANCE REQUIREMENT REFLECTED ITS MINIMUM NEEDS, AND THAT SUCH REQUIREMENT CAN BE MET BY VEECO, ARE ARBITRARY OR CAPRICIOUS. ACCORDINGLY, YOUR PROTEST IS DENIED.