B-172928, AUG 18, 1971

B-172928, AUG 18, 1971

BID PROTEST - CONTRACT SPECIFICATIONS - BIDDER RESPONSIBILITY DENIAL OF PROTEST BY LEEDS & NORTHRUP COMPANY AGAINST AWARD OF A CONTRACT UNDER AN IFB ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, FOR TWO CLASS 2 1400-DEGREE F. FORCED CONVECTION STEAM ATMOSPHERE ELECTRICAL HEAT TREATING FURNACES. PROTESTANT'S CONTENTION THAT THE SPECIFICATIONS ARE DEFECTIVE IS WITHOUT MERIT, SINCE THE CITED FIGURES REFER TO CLASS 1 FURNACES, NOT TO THE CLASS 2 FURNACES INVOLVED HERE. A REQUIREMENT OF A "STATEMENT OF EXPERIENCE" IS A QUESTION OF A BIDDER'S RESPONSIBILITY, WHICH IS PRIMARILY A MATTER FOR THE CONTRACTING OFFICER TO DETERMINE, NOT GAO.

TO LEEDS & NORTHRUP COMPANY:

WE REFER TO YOUR PROTEST BY LETTER DATED APRIL 22, 1971, AND SUBSEQUENT CORRESPONDENCE, AGAINST THE AWARD OF A CONTRACT TO W. P. KEITH COMPANY PURSUANT TO INVITATION FOR BIDS (IFB) N66314-71-B-1652, ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA.

THE IFB WAS FOR PROCUREMENT OF TWO CLASS 2 1400 DEGS F FORCED CONVECTION STEAM ATMOSPHERE ELECTRICAL HEAT TREATING FURNACES, ONE FURNACE TO BE 22 INCHES IN DIAMETER BY 60 INCHES IN DEPTH, THE OTHER 22 INCHES IN DIAMETER BY 37 INCHES IN DEPTH, IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-F- 80133, SEPTEMBER 29, 1967, AND PARAGRAPH 6.2 OF THE IFB SPECIFICATION. FIVE BIDS WERE RECEIVED AND WERE OPENED ON MARCH 10, 1971. THE OFFICE ISSUING THE IFB HAD NOT HAD PREVIOUS EXPERIENCE WITH THE LOW BIDDER, W. P. KEITH COMPANY, AND REQUESTED A PREAWARD SURVEY. THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT, ANAHEIM, RESPONDED FAVORABLY ON KEITH AND RECOMMENDED AWARD OF THE CONTRACT TO THAT FIRM. AWARD WAS MADE TO W. P. KEITH COMPANY ON MARCH 26, 1971.

ON APRIL 22, 1971, YOU FORMALLY PROTESTED THE AWARD TO W. P. KEITH ON TWO PREMISES.

FIRST, YOU STATE THAT THE SPECIFICATIONS ARE DEFECTIVE IN THAT THEY REQUIRE THAT THE "RECOVERY RATE TO 1200 DEGS F MUST BE EQUIVALENT TO AT LEAST 70 POUNDS OF STEEL PER HOUR PER CUBIC FOOT OF WORK CHAMBER" AND THAT "IT IS IMPOSSIBLE TO ATTAIN A RECOVERY RATE OF 70 LBS. PER HOUR PER CUBIC FOOT." YOU FURTHER SAY THAT "UNTIL THIS BASIC AND MOST SERIOUS TECHNICAL DISCREPANCY IS RESOLVED, WE STRONGLY PROTEST THE AWARD OF THIS CONTRACT TO ANY BIDDER OTHER THAN THE LEEDS & NORTHRUP COMPANY."

THE RECOVERY RATE OF 70 POUNDS TO WHICH YOU REFER IS SET OUT IN SECTION 3.5 OF MIL-F-80133 AS A REQUIREMENT FOR CLASS 1 FURNACES. YOUR ATTENTION IN THIS PARTICULAR IS INVITED TO THE PREVIOUSLY MENTIONED PARAGRAPH 6.2 OF THE IFB SPECIFICATION WHICH CLEARLY STATES THAT THE FURNACES BEING PROCURED ARE CLASS 2 WITH A 1400 DEGS F OPERATING TEMPERATURE. SECTION 3.5 OF MIL-F-80133 SPECIFIES THAT A CLASS 2 FURNACE IS REQUIRED TO HAVE A RECOVERY RATE EQUIVALENT TO AT LEAST 55 POUNDS OF STEEL PER CUBIC FOOT OF WORK CHAMBER VOLUME TO 1700 DEGS F. IT DOES NOT APPEAR THEREFORE THAT YOUR REFERENCE TO THE CLASS 1 SPECIFICATION REQUIREMENT OF A 70-POUND RECOVERY RATE IS PERTINENT TO THE INSTANT PROCUREMENT.

IT SHOULD ALSO BE NOTED THAT THE DRAFTING OF SPECIFICATIONS TO ADEQUATELY DESCRIBE A PRODUCT WHICH WILL MEET THE NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE CONTRACTING AGENCY, AND THE SUFFICIENCY OF SUCH SPECIFICATIONS IS OFTEN SUBJECT TO A DIFFERENCE OF TECHNICAL OPINION. WHERE THESE DIFFERENCES OF A TECHNICAL NATURE EXIST, OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE, WHICH WE DO NOT FIND IN THE INSTANT CASE, THAT THE AGENCY IS IN ERROR. 40 COMP. GEN. 294, 297 (1960); 17 ID. 554, 557 (1938).

YOU FURTHER STATE THAT THE SPECIFICATIONS SHOULD REQUIRE "A STATEMENT OF EXPERIENCE IN STEAM ATMOSPHERE METHOD OF HEAT TREATING OF METALS." OUR OFFICE HAS HELD THAT EXPERIENCE QUALIFICATIONS ARE A MATTER OF RESPONSIBILITY AND THAT THE DETERMINATION OF A BIDDER'S OVERALL RESPONSIBILITY IS PRIMARILY THE FUNCTION OF THE CONTRACTING AGENCY AND NOT OF THE GENERAL ACCOUNTING OFFICE. 45 COMP. GEN. 4, 6 (1965); 38 ID. 131, 133 (1958); 33 ID. 549, 551 (1954). WHETHER A BIDDER IS, OR IS NOT, CAPABLE OF PRODUCING IN ACCORDANCE WITH THE CONTRACT REQUIREMENTS IS A QUESTION OF FACT, AND ABSENT EVIDENCE THAT THE DETERMINATION OF A BIDDER'S CAPABILITIES WAS BASED ON ERROR, FRAUD, OR FAVORITISM, OUR OFFICE WILL ACCEPT THE FINDINGS OF THE CONTRACTING AGENCY. 46 COMP. GEN. 371, 372 (1966); 46 ID. 123, 126 (1966); 40 ID. 294, 297 (1960). WE HAVE ALSO STATED THAT THE EVALUATION OF A BIDDER'S ABILITY TO PERFORM IS OF NECESSITY A MATTER OF JUDGMENT WHICH, BASED ON FACT AND ARRIVED AT IN GOOD FAITH, MUST BE LEFT LARGELY TO THE SOUND ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICER INVOLVED SINCE HE IS IN THE BEST POSITION TO EVALUATE RESPONSIBILITY. HE MUST BEAR THE BRUNT OF ANY DIFFICULTIES EXPERIENCED BY REASON OF THE CONTRACTOR'S LACK OF ABILITY, AND HE MUST MAINTAIN DAY TO DAY RELATIONS WITH THE CONTRACTOR ON BEHALF OF THE GOVERNMENT. FOR THESE REASONS, WE HAVE HELD THAT IT WOULD BE UNREASONABLE TO SUPERIMPOSE THE JUDGMENT OF OUR OFFICE ON THAT OF THE CONTRACTING OFFICER. 39 COMP. GEN. 705, 711 (1960).

IN VIEW OF THE FOREGOING, YOUR PROTEST MUST BE DENIED.