B-164615, OCT. 4, 1968

B-164615, OCT. 4, 1968

TO MB ELECTRONICS:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 17, 1968, REQUESTING FURTHER REVIEW OF YOUR PROTEST OF THE AWARD TO UNHOLTZ-DICKIE CORPORATION OF A CONTRACT UNDER INVITATION FOR BIDS NO. N00156-68-B 0502, ISSUED BY THE NAVAL AIR ENGINEERING CENTER, PHILADELPHIA, PENNSYLVANIA, WHICH PROTEST WAS DENIED BY OUR DECISION DATED AUGUST 26, 1968.

THE INVITATION WAS ISSUED ON FEBRUARY 20, 1968, REQUESTING BIDS ON FOUR SINUSOIDAL VIBRATION TESTING SYSTEMS IN ACCORDANCE WITH NAVAL WEAPONS INDUSTRIAL SUPPORT OFFICE SPECIFICATIONS NO. 68-760. THE INVITATION, AT PAGES 12 AND 13, REQUIRED BIDDERS TO FURNISH DESCRIPTIVE LITERATURE WITH RESPECT TO ENUMERATED ITEMS, ADVISED THEM THAT THE LITERATURE WOULD BE CONSIDERED FOR PURPOSES OF BID EVALUATION AND AWARD, AND WARNED OF THE CIRCUMSTANCES IN WHICH DEFICIENCIES IN THE LITERATURE WOULD WARRANT REJECTION OF THE BID. THE THREE BIDS THAT WERE RECEIVED WERE OPENED ON MARCH 20, 1968, AND ALTHOUGH YOUR BID WAS APPARENTLY LOW, IT WAS REJECTED AS NONRESPONSIVE BECAUSE OF WHAT THE CONTRACTING AGENCY DETERMINED TO BE TECHNICAL INADEQUACIES IN YOUR DESCRIPTIVE LITERATURE. THE RECORD CONTAINS CORRESPONDENCE BETWEEN YOU AND THE ADMINISTRATIVE OFFICE IN WHICH THE AGENCY SPECIFIED THE NATURE OF ITS OBJECTIONS AND IN WHICH YOU SET FORTH A REBUTTAL OF THE REASONS GIVEN FOR THE REJECTION OF YOUR BID.

YOUR LETTER OF SEPTEMBER 17, 1968, RAISES THE QUESTION OF WHETHER ARBITRARY AND CAPRICIOUS JUDGMENT WAS EXERCISED BY THE AGENCY IN REJECTING YOUR BID. IN SUPPORT OF YOUR ARGUMENT THAT THE ANSWER SHOULD BE IN THE AFFIRMATIVE YOU PRESENT FOUR ILLUSTRATIONS, THE FIRST TWO OF WHICH CONCERN THE REQUIRED NOISE LEVEL OF THE SYSTEM AND THE SPECIFICATION THAT THE AUTOMATIC CONTROL OSCILLATOR SHALL BE MODEL 1025C MANUFACTURED BY BRUEL AND KJAER. BOTH ITEMS WERE SUBJECTS OF DISPUTE BETWEEN YOU AND THE AGENCY, AND IT WAS POINTED OUT IN OUR DECISION THAT WE LACKED THE TECHNICAL EXPERTISE TO EVALUATE THE CONFORMITY OF THE LITERATURE TO THE DETAILED REQUIREMENTS OF THE SPECIFICATIONS, A FUNCTION PROPERLY BELONGING TO THE CONTRACTING OFFICIALS OF THE GOVERNMENT, AND THAT IN SUCH A CASE WE WERE REQUIRED TO ACCEPT AS CORRECT THE ADMINISTRATIVE VERSION, ABSENT ARBITRARY OR CAPRICIOUS ACTION. THE RECORD WAS REVIEWED AND WE CONCLUDED THAT WE COULD NOT SAY THAT THE ADMINISTRATIVE VERSION WAS ARBITRARY OR CAPRICIOUS.

FURTHER CONSIDERATION OF THE RECORD DOES NOT PERSUADE US THAT THE HOLDING WAS INCORRECT AND WE THEREFORE MUST REJECT YOUR FIRST TWO ILLUSTRATIONS AS BEING INDICATIVE OF ARBITRARY JUDGMENT ON THE PART OF THE CONTRACTING OFFICERS.

AS A THIRD INDICATION OF ARBITRARINESS ON THE PART OF THE CONTRACTING OFFICERS YOU ASSERT THAT, DURING A MEETING BETWEEN MB ELECTRONICS AND REPRESENTATIVES OF THE NAVAL AIR ENGINEERING CENTER (NAEC), IT WAS IN EFFECT REPRESENTED TO YOU THAT NO OBJECTIONS TO YOUR BID WOULD BE RAISED OTHER THAN THOSE CONTAINED IN NAEC'S LETTER OF APRIL 16, 1968. YOU CLAIM THAT NAEC'S LETTER OF MAY 29, 1968, INCLUDES NEW OBJECTIONS NOT RAISED AT THE MEETING. HOWEVER, YOU FAIL TO INDICATE WHICH SPECIFIC POINTS IN THE MAY 29 LETTER HAD NOT THERETOFORE BEEN RAISED.

WE HAVE READ THESE TWO LETTERS WITH CARE AND FIND NO SUBSTANTIAL DIFFERENCE BETWEEN THEM. THE LETTER OF MAY 29 IS MORE DETAILED AND TECHNICAL, AND IT WOULD SEEM NECESSARILY SO SINCE IT WAS WRITTEN IN RESPONSE TO YOUR SOMEWHAT DETAILED REBUTTAL LETTER OF APRIL 22, 1968, BUT WE DO NOT CONSIDER THAT A COMPARISON OF THESE TWO LETTERS DEMONSTRATES THAT THE CONTRACTING AGENCY ADDED TO ITS ORIGINAL REASONS FOR FINDING YOUR BID NONRESPONSIVE.

FINALLY, YOU STATE THAT THE AGENCY DID NOT ACCEDE TO YOUR REQUEST THAT YOUR APRIL 22, 1968, REBUTTAL BE REVIEWED BY A TECHNICAL GROUP OTHER THAN THE ONE WHICH INITIALLY DISQUALIFIED YOUR BID. YOU EXPRESS DIFFICULTY IN SEEING HOW A FAIR EVALUATION CAN BE PREPARED BY THE VERY GROUP AGAINST WHOM THE REBUTTAL IS DIRECTED. WHILE THERE WOULD PERHAPS HAVE BEEN GREATER ASSURANCE OF IMPARTIALITY UNDER THE PROCEDURE YOU SUGGESTED, THE FAILURE ALONE TO FOLLOW THAT PROCEDURE DOES NOT ESTABLISH ARBITRARINESS.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR INVALIDATING THE ADMINISTRATIVE REJECTION OF YOUR BID AND AWARD OF THE CONTRACT TO UNHOLTZ-DICKIE CORPORATION.