B-196149, MAY 6, 1980

B-196149, MAY 6, 1980

DIGEST: PROTESTER'S DESCRIPTIVE LITERATURE FURNISHED WITH ITS OFFER, AND AT OTHER TIMES DURING DISCUSSIONS, SPECIFIED 250-POUND WEIGHT SUPPORT CAPABILITY FOR ITS OFFERED PRODUCT, WHICH WAS NOT IN COMPLIANCE WITH AGENCY'S STATED MINIMUM NEED FOR CAPABILITY TO SUPPORT 300-POUND PATIENT. AGENCY HAD PROPER BASIS TO REJECT OFFER - EVEN THOUGH PROTESTER MADE WRITTEN STATEMENT THAT ITS PRODUCT WOULD MEET 300-POUND REQUIREMENT AS EVIDENCED BY CERTAIN TEST REPORT - BECAUSE PROTESTER DID NOT SATISFY DESCRIPTIVE LITERATURE REQUIREMENT BY SUBMITTING REQUESTED SUPPORTING TEST REPORT TO SHOW 300-POUND WEIGHT SUPPORT CAPABILITY.

H.G. FISCHER, INC.:

H.G. FISCHER, INC., PROTESTS THE AWARD OF CONTRACT NO. DLA120-79-C 8126 BY THE DEFENSE LOGISTICS AGENCY (DLA) TO XONICS MEDICAL SYSTEMS, INC., FOR CERTAIN RADIOGRAPHIC EQUIPMENT. THIS WAS A NEGOTIATED PROCUREMENT FOR CERTAIN RADIOGRAPHIC EQUIPMENT. THE SOLICITATION NOTIFIED OFFERORS THAT THE EVALUATION OF OFFERS AND THE DETERMINATION OF EXACTLY WHAT PRODUCT WAS OFFERED WOULD BE BASED ON INFORMATION FURNISHED BY THE OFFEROR OR IDENTIFIED IN THE OFFER, AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. ACCORDINGLY, EACH OFFEROR FURNISHED THE DESCRIPTIVE MATERIAL NECESSARY TO ESTABLISH EXACTLY WHAT THE OFFEROR PROPOSED TO FURNISH.

INITIAL TECHNICAL EVALUATION OF THE FISCHER PROPOSAL RESULTED IN THE CONTRACTING OFFICER CONCLUDING THAT FISCHER SUBMITTED INADEQUATE TECHNICAL DATA. THE CONTRACTING OFFICER CALLED FISCHER TO REQUEST ADDITIONAL DATA TO ESTABLISH PRECISELY WHAT WAS TO BE FURNISHED. FISCHER SENT IN MORE DATA. AGAIN THE TECHNICAL EVALUATION RESULTED IN THE CONCLUSION THAT FISCHER WOULD NOT MEET ALL OF DLA'S REQUIREMENTS. ONCE MORE, THE CONTRACTING OFFICER CALLED FISCHER TO EXPLAIN THE CONTINUING PROBLEM. THAT TIME, THE CONTRACTING OFFICER WAS INVITED TO THE FISCHER PLANT TO INSPECT THE PROTOTYPE. DLA PERSONNEL VISITED THE PLANT AND TESTED THE PROTOTYPE AND CONCLUDED THAT IT WAS NOT ACCEPTABLE. DURING THE PLANT VISIT, A DLA REPRESENTATIVE SPECIFICALLY REQUESTED TECHNICAL DATA TO SUPPORT FISCHER'S CLAIM THAT THE FISCHER PROTOTYPE COULD SUPPORT A 300- POUND PATIENT AS REQUIRED BY THE SOLICITATION SINCE FISCHER LITERATURE SUBMITTED WITH ITS PROPOSAL DESCRIBED A TABLE CAPABLE OF SUPPORTING ONLY 250 POUNDS UNDER CERTAIN CONDITIONS. ABOUT 1 MONTH LATER, A MEETING WAS HELD WITH A REPRESENTATIVE OF FISCHER WHO GAVE HIS ASSURANCES THAT ADEQUATE TECHNICAL AND SERVICE DATA REGARDING THE WEIGHT SUPPORTING CAPABILITY WOULD BE SUBMITTED. NINE DAYS LATER, NO DATA HAD BEEN RECEIVED AND DLA AWARDED THE CONTRACT.

FISCHER DISPUTES ALL OF THE BASES, INCLUDING THE TABLETOP WEIGHT CAPABILITY, UPON WHICH ITS PROPOSAL WAS REJECTED. FISCHER CONTENDS THAT ITS TABLE CAN SUPPORT A 300-POUND PATIENT AS REQUIRED BY THE SPECIFICATION. FISCHER ARGUES THAT DOCUMENTATION OF TABLE STRENGTH WAS NOT REQUIRED BY THE RFP AND DLA DID NOT REQUIRE DESCRIPTIVE LITERATURE ON THAT POINT FROM OTHER VENDORS. IN FISCHER'S VIEW, THE LITERATURE IT SUBMITTED AND ITS WRITTEN EXPLANATION DURING DISCUSSIONS WERE MORE THAN ADEQUATE TO INDICATE FISCHER'S COMPLIANCE WITH THE SOLICITATION'S REQUIREMENTS; FURTHER, FISCHER CANNOT UNDERSTAND WHAT TYPE OF DOCUMENTATION DLA COULD HAVE WANTED ON THIS POINT. FISCHER NOTES THAT, DURING DISCUSSIONS, IT WROTE TO DLA TO EXPLAIN THAT ITS TABLE'S WEIGHT SUPPORTING CAPABILITY CONTENTION WAS BASED ON AN "OFFICIAL UL TEST *** CONDUCTED AND PASSED USING A 300 POUND WEIGHT, CONCENTRATED IN A ONE SQ. FOOT AREA OF THE TABLE TOP END WITH THE TOP IN THE CENTER POSITION ***."

DLA ADMITS RECEIVING FISCHER'S ASSURANCES THAT THE WEIGHT REQUIREMENT WAS SATISFIED BUT DLA'S REQUESTS FOR THE TEST REPORT SUBSTANTIATING THIS RESULT WERE IGNORED BY FISCHER. MOREOVER, DLA CONTACTED UNDERWRITERS LABORATORY (UL) IN AN EFFORT TO OBTAIN A COPY OF THE TEST REPORT BUT UL DENIED HAVING TESTED THE FISCHER TABLE OFFERED. THUS, DLA CONCLUDED THAT WITHOUT THE TEST REPORT, AND IN VIEW OF THE SPECIFIC DEVIATION FROM THE WEIGHT REQUIREMENT IN FISCHER'S DATA, IT COULD NOT FIND THAT THE FISCHER TABLE MET THE WEIGHT SUPPORTING CAPABILITY REQUIREMENT.

TO THE EXTENT THAT FISCHER'S OBJECTION IS TO DLA'S REQUIREMENT FOR A COPY OF THE UL TEST REPORT, ITS PROTEST IS UNTIMELY UNDER 4 C.F.R. SEC. 20.2(B) (1980) SINCE IT WAS NOT FILED WITHIN 10 WORKING DAYS OF INITIAL NOTICE THAT DLA REQUIRED THE REPORT TO DETERMINE PRODUCT ACCEPTABILITY.

WE NOTE THAT DLA ESTABLISHED AND EFFECTIVELY COMMUNICATED TO ALL OFFERORS, BY REFERENCE TO FEDERAL SPECIFICATION GG-X-635, THAT ONE OF ITS MINIMUM NEEDS WAS A TABLE CAPABLE OF SUPPORTING A 300-POUND PATIENT. FURTHER, THE RFP EFFECTIVELY COMMUNICATED ITS REQUIREMENT FOR DESCRIPTIVE LITERATURE TO SHOW EXACTLY WHAT THE OFFEROR PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE. THE WEIGHT CAPABILITY WAS CLEARLY A MATERIAL REQUIREMENT AND THE PROTESTER'S DATA SHOWED A DEVIATION FROM THAT REQUIREMENT. DLA CLEARLY SO NOTIFIED THE PROTESTER AND THE PROTESTER OFFERED IN WRITING TO COMPLY BUT DID NOT PROVIDE DESCRIPTIVE DATA TO SHOW THAT ITS OFFERED PRODUCT COULD OR WOULD MEET THAT REQUIREMENT. DLA EXPRESSLY ASKED FOR ONE SPECIFIC DOCUMENT, WHICH IT WOULD ACCEPT AS ADEQUATE DESCRIPTIVE DATA - THE UL TEST REPORT; THE PROTESTER DID NOT PRODUCE IT. MOREOVER, DLA WENT TO UL TO GET A COPY BUT, FOR THE REASON STATED ABOVE, NO COPY WAS AVAILABLE FROM UL.

SINCE FISCHER'S DESCRIPTIVE DATA SUBMITTED WITH ITS OFFER CLEARLY SHOWED THAT IT DID NOT COMPLY WITH THE WEIGHT CAPABILITY REQUIREMENT, ITS OFFER WAS PROPERLY REJECTED. A.L. LEFTHERIOTIS LTD., B-190720, MARCH 30, 1978, 78-1 CPD 251. FURTHER, ITS ASSURANCES OF COMPLIANCE DURING DISCUSSIONS DID NOT CURE THIS DEFICIENCY. A.L. LEFTHERIOTIS LTD., SUPRA.

FINALLY, MORE THAN ONCE DLA REQUESTED THE UL REPORT AND DLA EVEN ATTEMPTED TO ASSIST FISCHER BY GOING DIRECTLY TO UL TO OBTAIN A COPY OF THE REPORT. CERTAINLY, IN THE CIRCUMSTANCES, FISCHER SHOULD HAVE KNOWN HOW IMPORTANT THE REPORT WAS TO ESTABLISH ACCEPTABILITY. DLA COULD NOT BE EXPECTED TO DO MORE THAN IT DID. IN FACT, DLA'S ACTIONS BELIE FISCHER'S FURTHER ARGUMENT THAT DLA FAILED TO CONDUCT MEANINGFUL DISCUSSIONS. MUST CONCLUDE, THEREFORE, THAT DLA HAD A PROPER BASIS TO REJECT FISCHER'S OFFER ON THAT GROUND ALONE. THUS, IT IS UNNECESSARY TO CONSIDER OTHER ASPECTS OF FISCHER'S PROTEST.

PROTEST DENIED.