B-153854, AUG. 26, 1964

B-153854, AUG. 26, 1964

TO MR. G. C. ALLETAG, PRESIDENT, METACOMET INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 2, 1964, PROTESTING THE CANCELLATION OF INVITATION FOR BIDS DSA 4-64-1218 BY THE DEFENSE GENERAL SUPPLY CENTER. THIS MATTER WAS THE SUBJECT OF OUR DECISION OF MAY 22, 1964, B-153854, TO YOU.

THE FACTS ON WHICH YOU BASED YOUR PROTEST WERE FULLY DISCUSSED IN OUR DECISION OF MAY 22, 1964, AND NEED NOT BE REPEATED HERE. HOWEVER, ON THE BASIS OF THE ALLEGATIONS MADE IN YOUR LETTER OF JUNE 2, 1964, AND YOUR ASSERTION THAT THE ACTION OF THE DEFENSE GENERAL SUPPLY CENTER IN CANCELING THE SUBJECT INVITATION WAS ARBITRARY, WE REQUESTED A FURTHER REPORT IN THIS CASE. SUCH REPORT FROM THE DEFENSE SUPPLY AGENCY, SUBMITTED AT OUR REQUEST, SETS FORTH THE FOLLOWING IN RESPONSE TO THE POINTS RAISED IN YOUR PROTEST:

"THE SAME TESTS ARE PERFORMED FOR SERVICEABILITY, ACCEPTANCE AND VERIFICATION TESTING. IT IS THEREFORE TRUE THAT METACOMET, UTILIZING ITS EK101 SENSITOMETER, PERFORMED THE TEST WORK IN QUESTION ACCORDING TO THE SPECIFICATIONS DURING THE PAST YEAR AS A SUBCONTRACTOR TO U.S. TESTING COMPANY. THE WORK PERFORMED BY METACOMET AS A SUBCONTRACTOR INVOLVED SERVICEABILITY TESTS OF PHOTOGRAPHIC CHEMICALS, PAPERS AND FILMS. IT IS ALSO TRUE THAT METACOMET WAS INFORMALLY ADVISED THAT ITS PERFORMANCE WAS SATISFACTORY. SERVICEABILITY TESTING IS AN ADMINISTRATIVE TOOL. TESTS ARE PERFORMED ON GOVERNMENT STOCKS TO DETERMINE WHETHER THEY ARE STILL SUITABLE FOR ISSUE AND USE OR WHETHER THEY HAVE DETERIORATED BECAUSE OF AGING AND MUST BE REMOVED FROM THE SUPPLY SYSTEM. A HIGH DEGREE OF ACCURACY IS NOT ESSENTIAL. IN ACCEPTANCE AND VERIFICATION TESTING, A HIGHER DEGREE OF ACCURACY IS REQUIRED, AS INDICATED IN PARAGRAPH 3, PAGE 4 OF THE BASIC REPORT.

"AS INDICATED BY INCL 11 TO THE BASIC REPORT, IFB DSA 4-64-1218 WAS DEFICIENT IN NOT SPECIFYING A SUFFICIENTLY HIGH DEGREE OF ACCURACY. THE PROPOSED CHANGES (INCL 15, BASIC REPORT) WERE INTENDED TO CORRECT THE DEFICIENCIES. THE RESULT OF THESE CHANGES WOULD BE A SUBSTANTIALLY STRICTER REQUIREMENT FOR REPEATABLE ACCURACY. TEST RESULTS FURNISHED BY METACOMET ON THE PRE-AWARD SURVEY DID NOT DEMONSTRATE THAT THEY COULD MEET THE LOOSELY STATED REPEATABLE ACCURACY REQUIREMENTS OF IFB 1218. THE CONTRACTING OFFICER ATTRIBUTED THIS FAILURE TO THE SENSITOMETER. IT IS POSSIBLE, HOWEVER, THAT THE FAILURE TO OBTAIN ADEQUATE TEST RESULTS COULD HAVE BEEN CAUSED BY ERROR IN DEVELOPING FILM OR IN READING THE DENSITY ON THE DENSITOMETER. WHETHER OR NOT METACOMET COULD NOW DEMONSTRATE THAT ACCEPTABLE RESULTS COULD BE OBTAINED IS IMMATERIAL, SINCE THE REQUIREMENTS WERE DEFICIENT AND THE CAPABILITY TO MEET THE ACCURACY REQUIREMENTS OF IFB 1218 WOULD NOT ESTABLISH THE CAPABILITY TO OBTAIN SUFFICIENTLY ACCURATE RESULTS FOR ACCEPTANCE AND VERIFICATION TESTING. SOME SPECIFIC CHARACTERISTICS OF THE EK101 SENSITOMETER ARE DISCUSSED IN PARAGRAPH 2, INCL 15 TO THE BASIC REPORT. IN GENERAL, HOWEVER, THE SUITABILITY OF THE EK101 SENSITOMETER FOR ACCEPTANCE OR VERIFICATION TESTING WOULD SEEM TO BE ANSWERED BY THE MANUFACTURER IN AN EXCHANGE OF CORRESPONDENCE WITH METACOMET. (INCL 1 AND 2). IN ITS LETTER OF 9 APRIL 1964, EASTMAN KODAK STATED:

" "WE CERTAINLY COULD NEVER AGREE THAT THE MODEL 101 SENSITOMETER, WITH ANY CONCEIVABLE MODIFICATIONS, COULD BE USED AS AN ABSOLUTE INSTRUMENT FOR ACCEPTANCE TESTING OF SENSITIZED PRODUCTS. IT IS IN SUPPORT OF THIS POSITION THAT WE HAVE CONSISTENTLY STATED TO YOU AND TO THE DEFENSE GENERAL SUPPLY CENTER THAT THIS INSTRUMENT IS NOT SUITABLE FOR SUCH A PURPOSE.'

SIMILAR INFORMATION WAS FURNISHED ON 23 MAY 1963 (INCL 3).

"THE SURVEY TEAM WAS SHOWN THE EK101 SENSITOMETER DURING THE COURSE OF THE PLANT SURVEY. THE TEAM DID NOT INFORM METACOMET THAT IT HAD BEEN CONCLUDED THAT THE INSTRUMENT WAS UNACCEPTABLE. THE TEAM APPROPRIATELY RELAYED THEIR CONCLUSIONS TO THE CONTRACTING OFFICER IN THEIR REPORT. THE SURVEY TEAM RAN NO TESTS. TESTS WERE PERFORMED BY METACOMET'S LABORATORY PERSONNEL UNDER THE DIRECTION OF MR. ALLETAG. AS INDICATED IN PARAGRAPH 2 ABOVE, THE TESTS CONDUCTED MEASURE THE ACCURACY OF THE WHOLE SYSTEM, AND INACCURACIES OF TEST RESULTS COULD BE CAUSED BY ERROR IN OTHER PROCESSES INVOLVED.

"MR. G. C. ALLETAG VISITED THIS CENTER ON 23 MARCH 1964 TO DISCUSS THE CANCELLATION OF IFB DSA 4-64-1218. HE EXPRESSED CONCERN THAT THE IFB WAS CANCELLED BECAUSE HIS FIRM WAS CONSIDERED INCAPABLE OF PERFORMING. IT WAS EXPLAINED TO MR. ALLETAG THAT THE IFB WOULD HAVE BEEN CANCELLED NOTWITHSTANDING HIS TECHNICAL CAPABILITY OR THE ADEQUACY OF HIS EQUIPMENT, IN VIEW OF THE FACT THAT THE REQUIREMENTS OF THE GOVERNMENT HAD NOT BEEN ADEQUATELY STATED, IN THAT THE DEGREE OF EXACTNESS OF TESTS HAD NOT BEEN ADEQUATELY SET FORTH, AND THE IFB CONTAINED A CONDITION CONCERNING RESPONSIBILITY OF POTENTIAL BIDDERS WHICH RESULTED IN RESTRICTING COMPETITION. THE INFORMATION GIVEN IN THIS CONFERENCE IS CONSISTENT WITH THE BASIS FOR CANCELLATION (INCL 11, BASIC REPORT).'

THEREFORE, IT WILL BE SEEN THAT THE INVITATION WAS CANCELED WITH NO ADVERSE REFLECTION ON YOUR COMPANY'S TECHNICAL CAPABILITY OR ADEQUACY OF YOUR EQUIPMENT. IN THIS CONNECTION, ARTICLE 8 (B) OF THE TERMS AND CONDITIONS OF THE INVITATION SPECIFICALLY RESERVED TO THE GOVERNMENT THE RIGHT TO REJECT ANY OR ALL BIDS. IT HAS BEEN CONSISTENTLY HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT AND BY THE COURTS THAT THE NECESSITY FOR REJECTING ALL BIDS IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION AND WHERE, AS HERE, IT IS SHOWN THAT THE DEGREE OF EXACTNESS OF TESTS HAD NOT BEEN ADEQUATELY SET FORTH IN THE SPECIFICATIONS AND THE INVITATION CONTAINED A CONDITION CONCERNING RESPONSIBILITY OF POTENTIAL BIDDERS WHICH RESULTED IN RESTRICTING COMPETITION, WE PERCEIVE NO LEGAL OBJECTION TO SUCH ACTION. SEE 36 COMP. GEN. 364 AND 17 COMP. GEN. 554. THE DETERMINATION MADE TO CANCEL THE INVITATION IS NOT CONTRARY TO OUR DECISIONS IN WHICH IT HAS BEEN HELD THAT AS A GENERAL RULE, AN INVITATION FOR BIDS WHICH IMPROPERLY OR UNNECESSARILY LIMITS COMPETITION BY ITS OWN TERMS IS INVALID. SEE 41 COMP. GEN. 77, 82; 39 COMP. GEN. 563, 564; AND 32 COMP. GEN. 384, 387.

IN VIEW OF THE FOREGOING, THERE IS NO LEGAL BASIS UPON WHICH WE MAY QUESTION THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER, AND YOUR PROTEST MUST BE DENIED.