B-156086, APR. 5, 1965

B-156086, APR. 5, 1965

TO CONTROL ENGINEERING CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM OF FEBRUARY 5, 1965, AND YOUR LETTER OF FEBRUARY 15, 1965, PROTESTING AGAINST AWARD OF CONTRACT TO ANY FIRM OTHER THAN YOUR OWN UNDER DEPARTMENT OF THE NAVY INVITATION FOR BIDS NO. 600-448-65.

THE SUBJECT INVITATION FOR BIDS, ISSUED ON DECEMBER 28, 1964, COVERED THE PROCUREMENT OF A WEATHER TELEVISION SYSTEM AN/GMQ-19/V) WHICH CONTAINS THE FOLLOWING COMPONENTS: ITEM 1A - ON SOLE; 1B - VIDEO MONITORS; IC - VIDEO DISTRIBUTION AMPLIFIERS; AND 1D - VIDEO LINE AMPLIFIERS. BIDS WERE OPENED ON JANUARY 26, 1965, WITH SIX FIRMS SUBMITTING BIDS IN RESPONSE TO THE SUBJECT INVITATION. YOUR COMPANY SUBMITTED THE LOWEST BID, BUT YOUR BID WAS REJECTED AS BEING NONRESPONSIVE TO ITEM 1D OF THE INVITATION CALLING FOR A VIDEO LINE AMPLIFIER.

IN YOUR PROTEST YOU CONTEND, IN EFFECT, THAT THE SPECIFICATIONS COVERING THE VIDEO LINE AMPLIFIER WERE SO AMBIGUOUS AS TO CAUSE YOU TO BE UNCERTAIN AS TO WHAT THE PROCURING ACTIVITY ACTUALLY WANTED. TO THIS END, YOU SAY YOU ATTEMPTED TO CLARIFY THE ACTUAL REQUIREMENTS DESIRED AS TO THE VIDEO LINE AMPLIFIER WITH MR. ROBERT C. BLACK, JR., OF THE BUREAU OF NAVAL WEAPONS, PRIOR TO SUBMITTING YOUR FORMAL BID, AND AS A RESULT OF CONVERSATIONS AND MEETINGS IN THIS MATTER, YOU FELT YOU WERE PROVIDING THE NAVY WITH WHAT YOU UNDERSTOOD THE NAVY WANTED.

IN RESPONSE TO OUR REQUEST FOR A REPORT IN THIS MATTER, THE CONTRACTING OFFICER HAS STATED THAT YOUR BID WAS REJECTED AS NONRESPONSIVE BECAUSE THE VIDEO LINE AMPLIFIER (ITEM ID OF THE INVITATION) THAT YOU PROPOSED TO FURNISH WAS A SINGLE CHANNEL VIDEO AMPLIFIER WHICH HAS INSUFFICIENT GAIN FOR THE INTENDED PURPOSE. THE SCHEDULE SPECIFIED A GAIN OF 24 DB WHEREAS THE AMPLIFIER YOU PROPOSED TO FURNISH PROVIDES APPROXIMATELY 3 DB.

IN RESPONSE TO THE SPECIFIC BASIS OF YOUR OBJECTION TO THE SPECIFICATION UTILIZED IN THE INVITATION, IT IS ADMINISTRATIVELY REPORTED AS FOLLOWS:

"THE MAIN PROBLEM IN THIS CASE APPEARS TO BE WHETHER THE SPECIFICATIONS IN THE SUBJECT IFB ARE AMBIGUOUS ENOUGH TO CAUSE CONFUSION ON THE PART OF BIDDERS. MR. MCGLOCHLIN OF CONTROL ENGINEERING CORPORATION STATES THAT HE HAD A NUMBER OF QUESTIONS CONCERNING THE VIDEO LINE AMPLIFIER, ITEM 1D, PRIOR TO BID OPENING. THESE QUESTIONS WERE APPARENTLY RESOLVED WHEN MR. BROWN, THE CHIEF ENGINEER REPRESENTING CONTROL ENGINEERING CORP. TALKED WITH MR. BLACK, THE BUREAU OF NAVAL WEAPONS TECHNICAL REPRESENTATIVE ON THIS PROCUREMENT.

"UPON REVIEW OF REFERENCE (A) MR. BLACK STATED THAT WHAT WAS PRESENTED IS BASICALLY CORRECT; HOWEVER, THERE IS ONE MAJOR AREA OF CONFUSION, THAT BEING MR. BLACK'S CONVERSATION WITH MR. BROWN. MR. BLACK STATES THAT IF HE REPLIED TO MR. BROWN'S INQUIRY AS IS STATED IN REFERENCE (A), THEN THERE WAS CONFUSION AS TO WHAT THEY WERE TALKING ABOUT. MR. BLACK CAN SHED NO ADDITIONAL LIGHT ON THE SITUATION EXCEPT HE FEELS THAT IF CONTROL ENGINEERING CORP. FURNISHED THE EXACT EQUIPMENT CALLED FOR THEY WOULD NOT BE IN THE POSITION OF BEING LOW BIDDER. MR. BLACK ALSO RAISED THE POINT THAT OF THE SIX BIDDERS ON SUBJECT INVITATION CONTROL ENGINEERING CORP. WAS THE ONLY FIRM TO SUBMIT A VIDEO LINE AMPLIFIER THAT WAS NOT IN CONFORMANCE WITH THE SPECIFICATIONS.

"4. THE CONFUSION AROSE BECAUSE THE SPECIFICATIONS SET FORTH ON PAGE 3 SHOW THE WORDS ,APPLICABLE TO ITEM 1D" AS FALLING UNDER THE "PARA. 3.5.1" WHEN, IN FACT, THIS PARAGRAPH 3.5.1 DOES NOT DEAL WITH THE LINE AMPLIFIERS; BECAUSE OF ITS POSITION ON THE PAGE, THE CONTROL ENGINEERING CORPORATION CALLED FOR CLARIFICATION. MR. BLACK, DID NOT REALIZE THE CONFUSION AROSE BECAUSE OF THE LOCATION OF WORDS, ON THE PAGE. MR. BROWN WAS INQUIRING ABOUT ITEM 1D, VIDEO LINE AMPLIFIERS, WHILE MR. BLACK WAS TALKING ABOUT PARAGRAPH 3.5.1, ITEM 1C, VIDEO DISTRIBUTION AMPLIFIER.'

THE CONTRACTING OFFICER, AFTER CONSIDERING ALL FACTORS, HAS NOTED THAT THE FORMAT OF THE SPECIFICATION IN ISSUE DID NOT RESULT IN ANY QUESTIONS BEING RAISED BY THE OTHER FIVE BIDDERS. APPARENTLY, THE MISUNDERSTANDING HERE WAS LARGELY THE RESULT OF CONVERSATIONS BETWEEN MR. BLACK AND MR. BROWN, AND WHILE SUCH MISUNDERSTANDING IS UNFORTUNATE, IT CANNOT OPERATE TO ALTER OR MODIFY THE TERMS OF THE INVITATION OR YOUR BID AFTER BID OPENING.

THE STATUTES GOVERNING PROCUREMENT BY FORMAL ADVERTISING HAVE CONSISTENTLY BEEN HELD TO REQUIRE THAT SPECIFICATIONS BE STATED IN A CLEAR AND UNAMBIGUOUS MANNER AND IN TERMS PERMITTING THE BROADEST FIELD OF COMPETITION WITHIN THE GOVERNMENT'S ACTUAL NEEDS. 32 COMP. GEN. 384, 387; 17 COMP. GEN. 789, 790. THE DRAFTING OF SPECIFICATIONS MEETING THESE OBJECTIVES AND THE FACTUAL DETERMINATION AS TO WHETHER THE SPECIFICATIONS ARE MET BY A PARTICULAR ARTICLE ARE MATTERS PRIMARILY WITHIN THE PROVINCE OF THE CONTRACTING AGENCY. 38 COMP. GEN. 71, 75.

IN THIS INSTANCE THERE IS UNDER PROCUREMENT A HIGHLY COMPLEX AND EXPENSIVE ITEM OF EQUIPMENT. THE SPECIFICATIONS CAN BE UNDERSTOOD COMPLETELY ONLY BY ENGINEERING EXPERTS QUALIFIED IN THE PARTICULAR FIELD. TO DETERMINE WHETHER THE SPECIFICATIONS MEET THE STANDARDS ESTABLISHED FOR ADVERTISED PROCUREMENTS WOULD REQUIRE EMPLOYMENT OF THE SAME KIND OF EXPERTISE, WHICH IS NOT AVAILABLE TO US.

IT IS REPORTED THAT ITEM 1D REFERRING TO VIDEO LINE AMPLIFIERS WAS OUT OF PLACE IN PARAGRAPH 3.5.1 OF THE SPECIFICATIONS. HOWEVER, WE AGREE WITH THE DEPARTMENT OF THE NAVY THAT SUCH MISPLACEMENT WAS NOT SUFFICIENT TO RENDER THE SPECIFICATION SO INDEFINITE AND AMBIGUOUS AS TO PREVENT THE ATTAINMENT OF THE KIND OF COMPETITION CONTEMPLATED BY THE ADVERTISING STATUTES. WHILE YOU MAY HAVE BEEN UNDER A MISUNDERSTANDING, AS A RESULT OF THE CONVERSATIONS WITH MR. BLACK AS TO THE REQUIREMENTS OF THE SPECIFICATIONS, WE HAVE TAKEN THE POSITION THAT WHERE A DIFFERENCE OF EXPERT TECHNICAL OPINION EXISTS IN MATTERS OF THIS KIND WE WILL NOT ATTEMPT TO SUBSTITUTE OUR OWN JUDGMENT FOR THE CONTRACTING AGENCY'S UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE LATTER IS IN ERROR. COMP. GEN. 294, 297.

IN VIEW OF THE RECORD BEFORE US, WE SEE NO VALID BASIS FOR OBJECTING TO THE ACTIONS OF THE DEPARTMENT OF THE NAVY IN DETERMINING YOUR BID TO BE NONRESPONSIVE, AND YOUR PROTEST MUST BE DENIED.