B-150436, SEP. 24, 1963
Highlights
INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 12. YOUR OPENING STATEMENT THAT YOU HAVE NARROWED THE BASIS FOR REJECTION OF YOUR BID SOLELY TO LACK OF A TUBE CURRENT MONITOR IN YOUR EQUIPMENT IS NOT ENTIRELY ACCURATE. BOTH OF WHICH WERE CONSIDERED TO BE MATERIAL. THE OBJECTION WAS NOT THAT YOUR EQUIPMENT FAILED TO EQUAL THE BRAND NAME IN THESE RESPECTS. THAT YOUR BID DID NOT INCLUDE INFORMATION ON THESE CHARACTERISTICS OF YOUR EQUIPMENT AND WAS THEREFORE NONRESPONSIVE. SUCH A COMPLICATED ELECTRONIC INSTRUMENT IS BEST DESCRIBED IN THE OFFICIAL PUBLICATIONS OF THE MANUFACTURER. IT WAS NOT INCUMBENT UPON THE CONTRACTING OFFICER TO MAKE FURTHER SPECIFIC REFERENCE THERETO. SINCE THIS INFORMATION WAS NOT OF SPECIAL INTEREST TO THE GOVERNMENT ALONE.
B-150436, SEP. 24, 1963
TO PARADYNAMICS, INCORPORATED:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 12, 1963, QUESTIONING THE VALIDITY OF OUR DECISION TO YOU DATED JULY 31, 1963, UPHOLDING THE LEGALITY OF CONTRACT NO. AF 36 (600) -13749, DATED DECEMBER 4, 1962, WITH HEWLETT-PACKARD COMPANY.
YOUR OPENING STATEMENT THAT YOU HAVE NARROWED THE BASIS FOR REJECTION OF YOUR BID SOLELY TO LACK OF A TUBE CURRENT MONITOR IN YOUR EQUIPMENT IS NOT ENTIRELY ACCURATE. AS STATED ON PAGE 5 OF OUR LETTER OF JULY 31 YOU FAILED TO FURNISH INFORMATION ON SWEEP LINEARITY AND RESIDUAL AMPLITUDE MODULATION, BOTH OF WHICH WERE CONSIDERED TO BE MATERIAL. THE OBJECTION WAS NOT THAT YOUR EQUIPMENT FAILED TO EQUAL THE BRAND NAME IN THESE RESPECTS, BUT THAT YOUR BID DID NOT INCLUDE INFORMATION ON THESE CHARACTERISTICS OF YOUR EQUIPMENT AND WAS THEREFORE NONRESPONSIVE. SUCH A COMPLICATED ELECTRONIC INSTRUMENT IS BEST DESCRIBED IN THE OFFICIAL PUBLICATIONS OF THE MANUFACTURER, WHICH INCLUDED INFORMATION ON THE ABOVE CHARACTERISTICS OF THE BRAND NAME PRODUCT. IT WAS NOT INCUMBENT UPON THE CONTRACTING OFFICER TO MAKE FURTHER SPECIFIC REFERENCE THERETO, SINCE THIS INFORMATION WAS NOT OF SPECIAL INTEREST TO THE GOVERNMENT ALONE, BUT WAS CONSIDERED TO BE NECESSARY FOR THE PROPER EVALUATION OF THE INSTRUMENT BY ANY PROSPECTIVE PURCHASER, AND RECOGNIZABLE AS SUCH BY QUALIFIED BIDDERS. THE FACT THAT THE ABOVE OBJECTIONS WERE NOT ADVANCED INITIALLY AS REASONS FOR THE REJECTION OF YOUR BID DOES NOT AFFECT THEIR VALIDITY AS A BASIS FOR JUSTIFYING THE REJECTION.
YOU CONTINUE TO EMPHASIZE THE ALLEGED SHIFT FROM A SOLENOID FOCUSED BACKWARD WAVE OSCILLATOR (BWO) TO THE PERMANENT MAGNET FOCUSED TUBE AND YOU HAVE FORWARDED A COPY OF A HEWLETT-PACKARD ADVERTISEMENT APPEARING IN A SUPPLEMENT TO ELECTRONIC NEWS DATED AUGUST 12, 1963, WHICH IS SUPPOSED TO DISPLAY ONLY ITS NEW SWEEPER UTILIZING THE SAME BWO AS CONTAINED IN YOUR PROPOSED INSTRUMENT. YOU STATE THAT HEWLETT-PACKARD IS COMMITTED TO THIS NEW DESIGN PHILOSOPHY, BUT HAS NOT GONE INTO PRODUCTION BECAUSE OF DIFFICULTIES ENCOUNTERED IN ATTEMPTING TO ACHIEVE A UNIT COMPARABLE TO YOURS, AND YOU CHALLENGE US TO FIND A SINGLE AIR FORCE PROCUREMENT FOR NEW SYSTEMS THAT UTILIZES A SOLENOID FOCUSED BWO WHEN A COMPARABLE PERMANENT MAGNET TYPE TUBE IS AVAILABLE.
EVERYTHING IN THE FILE, INCLUDING YOUR OWN COMMENTS, POINTS UP THE RECENT DEVELOPMENT OF THE PERMANENT MAGNET TUBE AND LENDS SUPPORT TO OUR STATEMENT, WHICH YOU HAVE NOT CONTESTED, THAT AT THE TIME THESE BIDS WERE BEING EVALUATED IN 1962 IT WAS NOT UNIVERSALLY ACKNOWLEDGED AS A TECHNICAL FACT THAT THE PERMANENT MAGNET BWO TUBE WAS THE FUNCTIONAL EQUAL OF THE SOLENOID FOCUSED ELECTROMAGNETIC TUBE. IT IS TRUE THAT IF A BIDDER GUARANTEES HIS PRODUCT TO MEET THE REQUIREMENTS OF THE INVITATION AND IT FAILS TO DO SO THE GOVERNMENT MAY HAVE REDRESS FOR BREACH OF CONTRACT, BUT THIS IS NOT THE ANSWER. THE CONTRACTING OFFICER MUST BE ABLE TO AFFIRM THE EQUALITY OF THE PRODUCT OFFERED ON THE BASIS OF AVAILABLE INFORMATION AND WITHOUT TESTING OR ACTUAL USAGE. THIS HE APPARENTLY COULD NOT DO.
FOR THE REASONS STATED WE FIND NO BASIS FOR ALTERING OUR ORIGINAL CONCLUSION THAT THE AWARD WAS PROPERLY MADE.