TITLE: Dwight Tellier Church Organs, Inc., B-292825, December 9, 2003
BNUMBER: B-292825
DATE: December 9, 2003
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Dwight Tellier Church Organs, Inc., B-292825, December 9, 2003
Decision
Matter of: Dwight Tellier Church Organs, Inc.
File: B-292825
Date: December 9, 2003
Dwight Tellier for the protester.
Marilee D. Rosenberg, Esq., and Philip Kauffman, Esq., Department of
Veterans Affairs, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
of the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
Agency reasonably rejected protester*s quotation and issued order to
another vendor where protester*s quotation failed to demonstrate
compliance with stated requirements of solicitation.
DECISION
Dwight Tellier Church Organs, Inc. protests the rejection of its quotation
and the issuance of a purchase order to Wolf Gang Music, Inc. under
request for quotations (RFQ) No. 520-39-03, issued by the Department of
Veterans Affairs (VA) for two church organs.
We deny the protest.
The RFQ, which was posted electronically on June 18, 2003, sought
quotations for two church organs to be installed in the chapels of two VA
health care facilities, one located in Biloxi, and the other in Gulfport,
Mississippi. The RFQ set forth minimum specifications for each organ and
provided that a failure to meet these requirements might result in
rejection of the quotation. The RFQ further provided for award on a *best
value* basis, with technical factors, consisting of compliance with
specifications, location of dispatch office, and warranty, of slightly
greater importance than price.
Among the minimum specifications for both organs was a requirement for
*internal speakers, with two extra self-contained external speakers (with
cabinets and relays).* In addition, the minimum specifications for the
Biloxi organ included a requirement for *divided expression pedals (great,
swell, crescendo),* while the minimum specifications for the Gulfport
organ included a requirement for *divided expression pedals (swell,
great/pedal).*[1]
Tellier submitted a quotation for two Hammond XC3M organs, each paired
with a Leslie 814 speaker. Each organ was priced at $19,995 (without
trade-in of the existing organ) or $16,995 (with trade-in of the existing
organ). In response to the requirement (pertaining to the organs for both
locations) for two extra speakers, Tellier*s Quotation stated:
The 814 Leslie is designed as a surround sound. Extra speakers are not
needed for this application.
Tellier*s Quotation at 3, 5. In response to the requirement for divided
expression and crescendo pedals for the Biloxi organ and the requirement
for divided expression pedals for the Gulfport organ, Tellier*s quotation
stated:
Due to the extremely controllable features of this organ, the divided
expression pedal is not necessary. (These are all adjustable while
playing in real time.) With the large amount of preset memory available
on this organ a crescendo can be programmed on one bank of the preset
memory.
Id.
The only other vendor to submit a quotation was Wolf Gang Music, Inc. On
July 23, the VA issued a purchase order for two Allen organs to Wolf
Gang. Wolf Gang*s price for the Biloxi organ was $25,638, and its price
for the Gulfport organ was $19,598. Following an agency-level protest
that the contracting officer denied on August 20, Tellier protested to our
Office, arguing that it should have received the order since its quotation
was *clearly the lowest price on a recognized highest quality organ suited
to the needs of a multi-denominational chapel.* [2] Protest at 4.
In responding to Tellier*s protest, the VA explained that Tellier*s
quotation was rejected because the protester failed to demonstrate
compliance with the above-noted minimum specifications.
The protester takes issue with this determination, arguing that while its
organ/speaker combination may not comply with the stated requirements of
the RFQ, it does address the agency*s underlying needs. In this
connection, the protester argues that while the Hammond organ on which it
quoted has only a single expression pedal, it offers an alternative means
of volume control--i.e., *every stop (voice) on both manuals has a volume
control called a drawbar,* with 16 steps of sound level. Protester*s
Comments, Oct. 26, 2003, at 1. The protester analogizes the difference
between the Hammond organ*s system of volume control and the Allen organ*s
system to *the difference between the automatic gear shift in a vehicle
being on the floor console versus the steering column.* Id. at 1-2.
Tellier further argues that while the Hammond organ does not have a
crescendo pedal, it has preset keys that can be programmed for a crescendo
effect. The protester also argues that while it did not offer two
speakers, its single speaker has greater output than the two Allen
speakers combined, and that, because the Leslie speaker projects sound
from all sides, it can be heard by both organist and congregation when
placed between them. (According to the protester, the reason for
requiring two extra speakers is to enable both the organist and the
congregation to hear the organ clearly.)
The protester*s argument is in essence that because its organ/speaker
combination meets what it perceives to be the agency*s underlying
needs--i.e., the capability of controlling volume on a
less-than-full-organ basis, the capability to build a crescendo, and the
capability to be heard by both the organist and the congregation--the VA
should have viewed it as acceptable despite its noncompliance with the
RFQ*s stated requirements.
We disagree. It is the agency*s role to define both its underlying needs
and the best method of accommodating those needs, Allen Organ Co.--Recon.,
B-231473.2,
Aug. 31, 1988, 88-2 CPD P: 196 at 3-4, and it is within the agency*s
discretion to reject as unacceptable products not meeting the requirements
that it defines. C. Squared Corp., B-260291, June 6, 1995, 95-2 CPD P:
118 at 2. Moreover, the agency has offered a reasonable explanation as to
why it required multiple speakers (as opposed to a single, powerful,
multidirectional speaker, such as proposed by the protester), divided
expression pedals (as opposed to a single pedal paired with a manual
system of control), and a crescendo pedal (as opposed to a manually
controlled crescendo capability). In this regard, the contracting officer
explains that more than one speaker is required to ensure that soft sounds
(such as those likely to be produced during a memorial service) are
equally distributed; that divided pedals allow the organist to adjust the
volume of each keyboard separately, without removing his or her hands from
the keyboard; and that the crescendo pedal allows the organist to add
pre-determined mixes of instruments to the keyboards, without having to
stop playing with either hand to hit a separate control.
The protester also complains that the contracting officer failed to allow
it to demonstrate fully the capabilities of the Hammond organ prior to
determining the content of the RFQ. In other words, the contracting
officer wrote the RFQ around the characteristics of the Allen organ
without adequately considering whether the Hammond organ, which contains
different characteristics, was capable of equivalent or superior
performance. This is another objection to the content of the RFQ. As
previously noted, to be timely, any such objection would have needed to be
raised prior to the closing date for receipt of quotations. Bid Protest
Regulations, 4 C.F.R.
S: 21.2(a)(1). Accordingly, this argument is untimely and will not now be
considered by our Office.
Finally, the protester alleges that the VA had decided to purchase Allen
organs prior to the July 10 closing date for receipt of quotations, as
evidenced by an announcement to that effect by the Acting Chief at a
chaplains* meeting held in June. Protest at 2. While the remarks
attributed to the Acting Chief, if made, were ill-advised, since they were
reasonably interpreted by the protester as implying that its quotation
would not receive full and fair consideration, as explained above, the
record demonstrates that the VA had a reasonable basis for rejecting
Tellier*s quotation and issuing an order to Wolf Gang.
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] The contracting officer explains that expression pedals are volume
control pedals; divided expression pedals are pedals that allow the
organist to control the volume of the two manual (i.e., great and swell)
keyboards separately.
[2] The protester also complained that the RFQ *contained nomenclatures
that are registered trademarks of Allen Organ Company,* such as
*MDS-Expander II,* and that it, as other than an Allen organ dealer, had
no means of receiving the points associated with these minimum
specifications and thus was effectively eliminated from the competition.
Protest at 1. The VA correctly argued in its report that to be timely,
any objection to the specifications would have had to be raised prior to
the closing date for receipt of quotations. Bid Protest Regulations, 4
C.F.R. S: 21.2(a)(1) (2003). Moreover, as explained more fully below,
Tellier*s quotation for the Hammond organs was rejected for reasons other
than noncompliance with requirements incorporating Allen Organ
nomenclature, such as the one cited by the protester.