B-170636, NOV. 10, 1970

B-170636, NOV. 10, 1970

BID PROTEST DENIAL OF PROTEST AGAINST REJECTION OF LOW BID FOR TRANSMITTER FOR FEDERAL COMMUNICATIONS COMMISSION AND AWARD TO AEROCOM, INC., ON BASIS THAT PROTESTANT WAS NOT A RESPONSIBLE BIDDER. ALTHOUGH DETERMINATION THAT LOW BIDDER WAS NOT A RESPONSIBLE BIDDER BASED ON INFORMATION CONCERNING PERFORMANCE THAT WAS SOME FOUR YEARS OLD IS NOT A VALID DETERMINATION BASED ON "SUFFICIENT CURRENT INFORMATION" AND MATTER OF BIDDER'S RESPONSIBILITY SHOULD HAVE BEEN REFERRED TO SBA UNDER CERTIFICATE OF COMPETENCY PROCEDURE, NEVERTHELESS THE LOW BID WAS PROPERLY FOR REJECTION ON BASIS OF NONRESPONSIVENESS. WHERE A LOW BIDDER FURNISHED EVIDENCE TO REFUTE A TECHNICAL EVALUATION THAT HIS EQUIPMENT DID NOT COMPLY WITH THE SPECIFICATION AND A REVIEW OF THE ADDITIONAL DATA DID NOT SHOW COMPLIANCE THE BID WAS PROPERLY REJECTED AS NONRESPONSIVE. IN LETTER TO THE CHAIRMAN OF THE FEDERAL COMMUNICATIONS COMMISSION THE QUESTIONABLE VALIDITY OF THE NONRESPONSIBILITY DETERMINATION WAS CALLED TO HIS ATTENTION.

TO CCA ELECTRONICS CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST REJECTION OF YOUR LOW BID UNDER INVITATION FOR BIDS NO. 70-15, ISSUED BY THE FEDERAL COMMUNICATIONS COMMISSION, FOR THE PROCUREMENT OF ONE TRANSMITTER, 5000 PEP WATTS, HF, FOUR OR MORE CHANNELS, F-1 EMISSION, IN ACCORDANCE WITH ATTACHED SPECIFICATIONS.

THE INVITATION, WHICH WAS ISSUED ON JANUARY 12, 1970, WAS SENT TO FIVE POSSIBLE SOURCES AND SYNOPSISED IN THE COMMERCE BUSINESS DAILY. ADDITION TO YOUR BID, BIDS WERE RECEIVED FROM AEROCOM, INCORPORATED, AND RF COMMUNICATIONS, INCORPORATED, ON THE CLOSING DATE OF FEBRUARY 10, 1970. ALTHOUGH YOUR BID WAS LOW, IT WAS REJECTED ON APRIL 28, 1970, ON THE BASIS OF THE CONTRACTING OFFICER'S DETERMINATION THAT YOUR FIRM WAS NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR WITHIN THE MEANING OF SECTION 1- 1.310 OF THE FEDERAL PROCUREMENT REGULATIONS. AWARD OF A CONTRACT WAS MADE TO AEROCOM ON MAY 8, 1970.

BASICALLY, IT IS YOUR CONTENTION THAT THE DETERMINATION OF NONRESPONSIBILITY WAS INVALID BECAUSE IT WAS BASED UPON THE PERFORMANCE OF EQUIPMENT WHICH YOU FURNISHED TO THE GOVERNMENT MORE THAN FIVE YEARS AGO. YOU CONTEND THAT THE WEAKNESS IN THE SWITCHING SYSTEM OF YOUR TRANSMITTERS WHICH EXISTED AT THAT TIME HAS NOW BEEN CORRECTED AND THEIR DESIGN AND PERFORMANCE IMPROVED. FURTHERMORE, YOU OBJECT TO THE FACT THAT THE FCC DID NOT ACCEPT YOUR OFFER TO PAY THE EXPENSES OF ITS PERSONNEL VISITING YOUR PLANT TO CONFIRM THE CONTENTIONS CONCERNING YOUR IMPROVED TRANSMITTER.

BEFORE MAKING AN AWARD, IT IS THE CONTRACTING OFFICER'S RESPONSIBILITY TO DETERMINE THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE. SEE FPR 1-1.310 -5. UNDER THE APPLICABLE REGULATION, THE PROSPECTIVE CONTRACTOR MUST HAVE A SATISFACTORY RECORD OF PERFORMANCE IN ORDER TO QUALIFY. IN THE INSTANT CASE, THE CONTRACTING OFFICER WAS UNABLE TO MAKE AN AFFIRMATIVE DETERMINATION IN THIS RESPECT. HOWEVER, AS YOU CONTEND, HIS NEGATIVE DETERMINATION WAS BASED UPON INFORMATION CONCERNING YOUR PERFORMANCE IN A MEMORANDUM DATED DECEMBER 7, 1966. UNDER FPR 1-1.310-7, BEFORE MAKING A DETERMINATION OF RESPONSIBILITY, THE CONTRACTING OFFICER MUST HAVE "SUFFICIENT CURRENT INFORMATION TO SATISFY HIMSELF THAT THE PROSPECTIVE CONTRACTOR MEETS THE STANDARDS IN SEC 1-1.310-5." ONE OF THE SUGGESTED SOURCES FOR OBTAINING SUCH INFORMATION IS THE PROSPECTIVE CONTRACTOR. BASED UPON THE RECORD, WE QUESTION WHETHER THE CONTRACTING OFFICER HAD "SUFFICIENT CURRENT INFORMATION" TO MAKE A VALID DETERMINATION OF RESPONSIBILITY.

IN ADDITION, WHERE, AS HERE, THE PROSPECTIVE CONTRACTOR IS A SMALL BUSINESS CONCERN, IF THE CONTRACTING OFFICER IS NOT SATISFIED THAT THE PROSPECTIVE CONTRACTOR MEETS THE STANDARDS OF RESPONSIBILITY ONLY BECAUSE OF THE LACK OF ADEQUATE CAPACITY OR CREDIT, HE IS REQUIRED BY FPR 1-1.310- 8 TO COMPLY WITH THE REQUIREMENTS OF FPR SUBPART 1-1.7, CONCERNING CERTIFICATES OF COMPETENCY ISSUED BY THE SMALL BUSINESS ADMINISTRATION. IT WOULD APPEAR THAT THE COC PROCEDURE WAS APPLICABLE HERE, AND SHOULD HAVE BEEN COMPLIED WITH PRIOR TO A DETERMINATION OF NONRESPONSIBILITY.

HOWEVER, WE BELIEVE YOUR BID WAS PROPERLY REJECTED FOR ANOTHER REASON. IN THE COVER LETTER TRANSMITTING YOUR BID REFERENCE IS MADE TO AN ATTACHED INSTRUCTION BOOK THAT DESCRIBES THE TRANSMITTER AND EXCITER BID ON. YOUR BID AND THE ATTACHED INSTRUCTION BOOK, ALONG WITH THE OTHER TWO BIDS, WAS REFERRED TO THE FIELD ENGINEERING BUREAU (FEB) FOR TECHNICAL EVALUATION. IN A MEMORANDUM DATED FEBRUARY 20, 1970, THE FEB ADVISED THE CONTRACTING OFFICER AS FOLLOWS:

"THE CCA CORPORATION TAKES NO EXCEPTION TO THE SPECIFICATIONS AND PROPOSES TO FURNISH THEIR MODEL HFL-5000D4, 5 KW PEP LINEAR AMPLIFIER AND A CCA FSK-4D, FSK EXCITER. HOWEVER, NO INFORMATION IS FURNISHED WITH RESPECT TO THE BALUN OR REMOTE CONTROL UNIT WHICH WOULD BE PROVIDED. PART 12 OF THE SPECIFICATIONS REQUIRES THAT NO SPURIOUS EMISSIONS BEYOND 12 KHZ FROM THE CARRIER SHALL BE LESS THAN 55DB BELOW THE POWER OF THE FUNDAMENTAL. THE CCA INSTRUCTION BOOK STATES THAT SUCH EMISSIONS IN THEIR UNIT REACH A MAXIMUM WHICH IS ONLY 50DB BELOW THE FUNDAMENTAL POWER. EXPLANATION OF ADDITIONAL SUPPRESSION IS FURNISHED. THE CCA TRANSMITTER USES A ROTARY SWITCH METHOD TO ACCOMPLISH PRESET CHANNEL SELECTION AND WE HAVE, IN THE PAST, FOUND THIS METHOD TO BE A SOURCE OF UNRELIABLE OPERATION AND CONSIDERABLE MAINTENANCE DIFFICULTY IN UTILIZING TRANSMITTING EQUIPMENT MANUFACTURED BY CCA ELECTRONICS CORPORATION. PREVIOUSLY REJECTED CCA EQUIPMENT UNDER IFB 67-8 BECAUSE OF PROBLEMS WHICH HAVE SHOWN UP IN TRANSMITTERS PURCHASED FROM THEIR COMPANY UNDER PURCHASE ORDERS 11982 AND 14134. WE ARE ATTACHING A COPY OF OUR REPLY REGARDING IFB 67-8, DATED DECEMBER 7, 1966 WHICH DETAILS THE PROBLEMS WE HAVE PREVIOUSLY EXPERIENCED WITH CCA TRANSMITTERS. CCA IN A LETTER OF FEBRUARY 9, 1970, STATES THAT THEIR CURRENT TRANSMITTERS ARE A 'VAST IMPROVEMENT' OVER EARLIER DESIGNS. BASED UPON OUR PAST EXPERIENCE, WE ARE OF THE OPINION THAT A BASIC LIMITATION STILL EXISTS IN THE RELIABILITY OF THE MOTOR DRIVEN SWITCH MECHANISMS IN THE RUGGED SERVICE THE TRANSMITTER WILL UNDERGO IN ITS USE IN GRAND ISLAND."

IN A MEMORANDUM DATED MARCH 2, 1970, FROM THE CHIEF, FEB, THE FOLLOWING INFORMATION WAS CONVEYED TO THE CONTRACTING OFFICER:

"IN CONNECTION WITH YOUR REQUEST FOR CLARIFICATION OF THE NON COMPLIANCE OF THE CCA TRANSMITTER WITH PART 12 OF THE BID SPECIFICATIONS UNDER WHICH NO SPURIOUS EMISSIONS BEYOND 12 KHZ FROM THE CARRIER SHALL BE LESS THAN 55 DB BELOW THE POWER OF THE FUNDAMENTAL, THE CCA TRANSMITTER IS SHOWN IN THE CCA INSTRUCTION MANUAL AS HAVING SPURIOUS EMISSIONS WHICH REACH A MAXIMUM LEVEL OF 50 MW. THE RATIO OF THE 5,000 WATT CCA POWER AND THE ADVERTISED 50 MW SPURIOUS LEVEL LIMIT OF THE CCA TRANSMITTER IS 50 DB, WHICH DOES NOT COMPLY WITH PART 12 OF THE BID SPECIFICATIONS."

BY LETTER DATED MARCH 13, 1970, YOU WERE ADVISED THAT YOUR BID WAS BEING REJECTED AS NONRESPONSIVE BECAUSE OF NONCOMPLIANCE WITH PART 12 OF THE SPECIFICATIONS, UNLESS YOU COULD PROVIDE EVIDENCE TO REFUTE THE FEB'S TECHNICAL EVALUATION. ON MARCH 27, 1970, YOU SUBMITTED ADDITIONAL INFORMATION, WHICH WAS REFERRED TO THE FEB. THIS INFORMATION WAS ANALYZED AND THE FOLLOWING REPORT MADE ON APRIL 6, 1970:

"WE HAVE REVIEWED THE DATA SUBMITTED AND CONCLUDE THAT IT REPRESENTS A THEORETICAL ANALYSIS OF THE 'PI-L' CIRCUIT ARRANGEMENT. THERE IS NO SUBSTANTIATION OF THE DATA BY SPECIFIC ENGINEERING MEASUREMENTS WHICH CONFIRM THE ACTUAL PERFORMANCE OF THE TRANSMITTER. IT IS REASONABLE TO EXPECT SOMEWHAT LESS THAN THE THEORETICAL PERFORMANCE LEVEL IN AN OPERATIONAL TRANSMITTER UNIT; NEVERTHELESS, EVEN ACCEPTING THE CCA DATA AT FACE VALUE WE FIND THAT A VERIFICATION OF THE VALUES PRESENTED REVEALS THAT THE 2ND HARMONIC ATTENUATION SHOULD BE 54.1 DB RATHER THAN 57.5 DB SHOWN. THEREFORE, WITH THE DATA CCA HAS FURNISHED WE ARE UNABLE TO CONCLUDE THAT THE COMPANY HAS DEMONSTRATED THAT THEIR PROPOSED TRANSMITTER WILL IN FACT MEET THE 55 DB SPURIOUS ATTENUATION SPECIFICATION."

AWARD OF A CONTRACT PURSUANT TO FORMAL ADVERTISING MAY BE MADE UNDER 41 U.S.C. 253(B) ONLY TO THE LOW RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION. THE DETERMINATION WHETHER PRODUCTS OFFERED MEET THE SPECIFICATIONS IS PRIMARILY THE RESPONSIBILITY OF ADMINISTRATIVE AGENCY CONCERNED, TO BE QUESTIONED BY OUR OFFICE ONLY WHEN NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. 38 COMP. GEN. 190 (1958). SINCE IT WAS DETERMINED FROM THE INSTRUCTION BOOK SUBMITTED AS PART OF YOUR BID THAT THE TRANSMITTER OFFERED DID NOT CONFORM TO THE SPECIFICATIONS, THE BID WAS PROPERLY REJECTED.

ACCORDINGLY, THERE IS NO BASIS FOR OUR OFFICE TO DISTURB THE AWARD TO AEROCOM. HOWEVER, WE HAVE ADVISED THE CHAIRMAN OF THE FEDERAL COMMUNICATIONS COMMISSION OF OUR CONCLUSIONS WITH RESPECT TO THE DETERMINATION OF NONRESPONSIBILITY.