Matter of: Combined Arms Training Systems, Inc. File: B-250472 Date: January 12, 1993

Matter of: Combined Arms Training Systems, Inc. File: B-250472 Date: January 12, 1993

PROCUREMENT Sealed Bidding Bids Responsiveness Determination criteria Protest that awardee's bid for thermal imaging targets should have been rejected as nonresponsive for failure to contain a hit sensing device is denied since solicitation did not include a requirement for hit sensing. PROCUREMENT Bid Protests GAO procedures Protest timeliness Apparent solicitation improprieties Protest alleging that solicitation was deficient for not requiring a "hit sensing" device is untimely when not filed prior to bid opening.

Attorneys

DECISION Combined Arms Training Systems, Inc. (CATS) protests the award of a contract to Monterey Bay Corp. under invitation for bids (IFB) No. M67854-92-B-1132, issued by the Marine Corps Systems Command, Quantico, Virginia for 450 thermal imaging targets. The targets exhibit a thermal image detectable by various weapons systems and similar in appearance to that of a hostile armored vehicle. CATS contends that the target offered by the awardee will not satisfy the needs of the Marine Corps because it does not contain a hit sensing device. We deny the protest in part and dismiss it in part.

The IFB required the apparent low bidder to submit four bid samples, one of which would be randomly selected for testing. Bids were to be evaluated based on price, price related factors, and bid sample compliance with enumerated criteria. Award was to be made to the bidder that offered the lowest price and whose sample complied with the solicitation requirements.

The agency received six bids in response to the IFB. Monterey was the apparent low bidder with a total price of $70,465.00. The next low bidder was CATS which offered a price of $84,309.00.

CATS contends that Monterey's bid is nonresponsive since it offered a target that does not contain a hit sensing device and will not satisfy the Marine Corps' minimum needs.

Bid responsiveness concerns whether a bidder has unequivocally promised to provide supplies in conformity with all material, terms, and conditions of a solicitation. Only where a bidder provides information with its bid that reduces, limits, or modifies a solicitation requirement may the bid be rejected as nonresponsive. Ibex Ltd., B-230218, Mar. 11, 1988, 88-1 CPD Para. 257.

We conclude from our review of the record that the Marine Corps properly determined that Monterey's bid was responsive. The agency states that the IFB did not require hit sensing capability and CATS has not pointed to any provision in the solicitation which makes hit sensing a requirement. Further, Monterey offered to provide a target in complete conformity with all the material terms and conditions of the solicitation and the agency found Monterey's bid sample met all the requirements.

In its comments on the agency report, CATS contends that even though the specifications did not specifically require hit sensing, the requirement is inherent in the solicitation because the target holding mechanism used by the Marine Corps has hit sensing capability and was designed for use with hit sensing targets. The agency disagrees with this contention. While a hit sensing target may be used with the target holding mechanism, CATS has not shown that the mechanism uses such targets exclusively. We consequently do not find hit sensing to be an "inherent" requirement. Moreover, the agency states that hit sensing by a target is neither required nor desired during the training phases which will employ the targets. The Marine Corps explains that the targets were required for training in target detection, identification, acquisition, and live-fire gunnery and that live-fire gunnery is the only phase where hit sensing is applicable. The Marine Corps further states that even when used for live- fire gunnery, the targets are used in a manner that does not require hit sensing.

CATS' final contention is that a target without a hit sensing device will not meet the Marine Corps' minimum needs. The determination of the government's minimum needs and the best method of accommodating them is primarily the procuring agency's responsibility, since government procurement officials are the ones who are most familiar with the conditions under which supplies, equipment and services have been employed in the past and will be utilized in the future. Southern Dredging Co., Inc., B-229786.2, July 7, 1988, 88-2 CPD Para. 17. Accordingly, our Office will not question an agency's determination in these matters unless the determination has no reasonable basis. Id. We are unable to make that determination here. Furthermore, to the extent that CATS argues that the solicitation was deficient because it did not require a "hit sensing" device, this argument essentially concerns an alleged defect in the solicitation. Our Bid Protest Regulations require that protests of such deficiencies be filed prior to bid opening. 4 C.F.R. Sec. 21.2(a)(1)(1992); HEC Electrical Construction, 68 Comp.Gen. 244 (1989), 89-1 CPD Para. 143. CATS' initial submission of this allegation in its protest comments is therefore dismissed as untimely.

The protest is denied in part and dismissed in part.