B-128284, AUG. 17, 1956

B-128284: Aug 17, 1956

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 14. THE INVITATION FOR BIDS WHICH WAS ISSUED DECEMBER 2. ALTHOUGH YOUR BID ON THE ITEMS WAS THE LOWEST RECEIVED. IT WAS NOT ACCEPTED FOR REASONS REPORTED BY THE ADMINISTRATOR. ONLY TWO OBJECTIVES ARE DESIRED FOR THE USER'S NEED. OIL IMMERSION OBJECTIVES ARE NOT TO BE PLACED AT DISPOSAL OF USERS WHO ARE BEGINNING STUDENTS. THIS DEVIATION WAS ACKNOWLEDGED IN THE OPPLEM BID. THIS DEVIATION WAS ACKNOWLEDGED IN THE OPPLEM BID. "TO BE USED IN GEOLOGY LABORATORY WHERE THERE IS EXTENSIVE DUST. THESE DEVIATIONS WERE ACKNOWLEDGED IN OPPLEM'S BID.'. CONTRACTS FOR FURNISHING THE ITEMS WERE AWARDED TO HIGHER BIDDERS ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION THAT YOUR BID ON THE ITEMS WAS NOT RESPONSIVE TO THE ADVERTISED SPECIFICATIONS.

B-128284, AUG. 17, 1956

TO THE OPPLEM COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 14, 1956, PROTESTING YOUR FAILURE TO RECEIVE AN AWARD OF A CONTRACT AS THE LOW BIDDER ON ITEMS 208, 330, 377, 388, 396 AND 399 OF INVITATION FOR BIDS NO. R2-Y-70383-R-12 -20-55 ISSUED BY THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, REGION 3, WASHINGTON, D.C.

THE INVITATION FOR BIDS WHICH WAS ISSUED DECEMBER 2, 1955, REQUESTED BIDS FOR FURNISHING VARIOUS ITEMS OF SCIENTIFIC LABORATORY EQUIPMENT REQUIRED FOR USE BY PRE-MEDICAL STUDENTS IN THE DEPARTMENTS OF ZOOLOGY AND GEOLOGY AT HOWARD UNIVERSITY. YOU QUOTED PRICES ON THE ITEMS OFFERING TO FURNISH EQUIPMENT MANUFACTURED BY OFFICINE GALILEO IN MILAN, ITALY. ALTHOUGH YOUR BID ON THE ITEMS WAS THE LOWEST RECEIVED, IT WAS NOT ACCEPTED FOR REASONS REPORTED BY THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, AS FOLLOWS:

"ITEM 208

"1. OPPLEM COMPANY OFFERING GALILEO, TYPE SB3--- WITH A STAND HAVING A COURSE FOCUSING ADJUSTMENT BY RACK AND MICROMETRIC, BOTH CONTROLLED BY LATERALLY HEADS BUT WITHOUT PRE-SET LIMIT STOP.

"SPECIFICATION CALLS FOR AMERICAN OPTICAL 65B OR EQUAL, STAND FOCUSABLE BY RACK AND PINION WITH ADJUSTABLE TENSION. BALL BEARING LEVEL TYPE FINE ADJUSTMENT GRADUATED TO TWO MICRONS OF TRAVEL, WITH PRE-SET LIMIT STOP. (SEE PARAGRAPH 1A OF SPECIFICATION.)

"2. OPPLEM COMPANY OFFERING SUBSTAGE--- DOUBLE CONDENSER AND IRIS.

"SPECIFICATION CALLS FOR IRIS ONLY. (SEE PARAGRAPH 2A OF SPECIFICATION.

"SUBSTAGE--- DOUBLE CONDENSER AND IRIS MORE COMPLICATED AND MORE SUSCEPTIBLE TO BREAKAGE BECAUSE OF ADDITIONAL PARTS WHEN BEING USED BY NEW STUDENTS, AND TAKES TIME TO TEACH TO OPERATE A COMPLICATED INSTRUMENT.

"3. OPPLEM COMPANY OFFERING TRIPLE REVOLVING NOSE PIECE.

"SPECIFICATION CALLS FOR DOUBLE REVOLVING NOSE PIECE. (SEE PARAGRAPH 3B OF SPECIFICATION.)

"THE TRIPLE NOSE PIECE REQUIRES THREE OBJECTIVES; ONLY TWO OBJECTIVES ARE DESIRED FOR THE USER'S NEED. NORMALLY THE THIRD OBJECTIVE WOULD BE OIL IMMERSION TYPE. OIL IMMERSION OBJECTIVES ARE NOT TO BE PLACED AT DISPOSAL OF USERS WHO ARE BEGINNING STUDENTS. IF TRIPLE NOSE PIECE USED WITH ONLY TWO OBJECTIVES A DUST TRAP EXISTS IN THE UNUSED NOSE PIECE OPENING THUS ENDANGERING THE OPTICS OF THE INSTRUMENT.

"ITEMS 337 - 339

"1. OPPLEM COMPANY OFFERING GALILEO SB4X, WITH FINE FOCUSING ADJUSTMENT BY MICROMETRIC MOVEMENT WITHOUT PRE-SET LIMIT STOP.

"SPECIFICATION AMERICAN OPTICAL 35H OR EQUAL CALLS FOR BALL BEARING LEVEL TYPE FINE ADJUSTMENT WITH PRE-SET LIMIT STOP WHICH PREVENTS DAMAGE TO SLIDES AND OBJECTIVES. (SEE PARAGRAPH 1A OF SPECIFICATION.)

"2. OPPLEM COMPANY OFFERING STAGE--- RECTANGULAR 120 BY 130 MM.

"SPECIFICATIONS CALLS FOR 125 MM SQUARE. (SEE PARAGRAPH 2A OF THE SPECIFICATION.)

"RECTANGULAR STAGE MAKES IT IMPOSSIBLE TO CARRY OUT THE DESIRED MANUAL OPERATIONS INVOLVED IN TEACHING ZOOLOGY AND PROTOZOOLOGY.

"3. OPPLEM COMPANY OFFERING SUB-STAGE CONDENSER, RING TYPE.

"SPECIFICATION CALLS FOR SUB-STAGE FORK TYPE. (SEE PARAGRAPH 1C OF SPECIFICATION.) THIS DEVIATION WAS ACKNOWLEDGED IN THE OPPLEM BID.

"FORK TYPE PERMITS A GREATER VARIETY OF OBJECTS TO BE SLID INTO SUB STAGE CONDENSER WITH FACILITY.

"ITEM 396

"1. OPPLEM COMPANY OFFERING GALILEO SB4X--- SUBSTAGE CONDENSER, RING TYPE.

"SPECIFICATION AMERICAN OPTICAL 35MH OR EQUAL CALLS FOR SUB-STAGE FORK TYPE. (SEE PARAGRAPH 1C OF SPECIFICATION.) THIS DEVIATION WAS ACKNOWLEDGED IN THE OPPLEM BID.

"FORK TYPE PERMITS A GREATER VARIETY OF OBJECTS TO BE SLID INTO SUB STAGE WITH FACILITY.

"2. OPPLEM COMPANY OFFERING STAGE--- RECTANGULAR 120 BY 130 MM, GRADUATED AND REMOVABLE.

"SPECIFICATION CALLS FOR STAGE 125 MM SQUARE WITH UNGRADUATED MECHANICAL STAGE, PERMANENTLY FASTENED TO RIGHT SIDE, OPERATING BUTTONS TO BE ON VERTICAL AXIS. (SEE PARAGRAPH 3A OF SPECIFICATION.)

"ITEM 330

"1. OPPLEM COMPANY OFFERING GALILEO ABRF--- INSTRUMENT NOT INCLOSED.

"SPECIFICATION BAUSCH AND LOMB 33-45-56 OR EQUAL CALLS FOR SCALE AND ALL INTERNAL MOVING PARTS COVERED BY DURABLE METAL HOUSING WITH HANDLE FOR CARRYING. (SEE PARAGRAPH 7 OF SPECIFICATION.)

"TO BE USED IN GEOLOGY LABORATORY WHERE THERE IS EXTENSIVE DUST, CHEMICALS AND FUMES, AND INSTRUMENT MUST BE PROTECTED THEREFROM.

"ITEM 388

"1. OPPLEM COMPANY OFFERING GALILEO SB4X HAVING FINE FOCUS IN NORMAL POSITION DIRECTLY BENEATH COARSE FOCUS AND GRADUATED BY TWO MICRONS.

"SPECIFICATION BAUSH AND LOMB 31-20-20-28 OR EQUAL CALLS FOR LOW POSITIONED MICROMETER SIDE FINE ADJUSTMENT IN BASE OF STAND, NOT OVER 72 MM FROM AXIS TO TABLE LEVEL, GRADUATED TO SINGLE MICRONS. (SEE PARAGRAPH 3 OF SPECIFICATION.)

"LOW POSITION OFFERS EFFICIENT OPERATION WITH LESS FATIGUE AND LENGTH OF TIME USED IN OPERATION. MICRON PERMITS EXAMINATION OF FINER DETAILS IN INCREMENTS OF ONE UNIT VERSUS TWO UNITS. THESE DEVIATIONS WERE ACKNOWLEDGED IN OPPLEM'S BID.'

CONTRACTS FOR FURNISHING THE ITEMS WERE AWARDED TO HIGHER BIDDERS ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION THAT YOUR BID ON THE ITEMS WAS NOT RESPONSIVE TO THE ADVERTISED SPECIFICATIONS. THE QUESTION AS TO WHETHER YOUR BID ON ITEMS WAS RESPONSIVE IN ONE WHICH OBVIOUSLY REQUIRES EXPERT TECHNICAL KNOWLEDGE AND OPINION. THE RULE HAS BEEN SETTLED FOR MANY YEARS THAT FEDERAL CONTRACTS AWARDED AS A RESULT OF ADVERTISEMENTS FOR BIDS MUST BE THE CONTRACTS OFFERED TO ALL BIDDERS IN THE ADVERTISED SPECIFICATIONS AND CONDITIONS. YOU CLAIM THAT AS TO SOME ITEMS YOU OFFERED TO MEET THE SPECIFICATIONS AND THAT AS TO OTHERS THE DEVIATIONS WERE OF NO CONSEQUENCE. YOU STATED FURTHER THAT WHEN "OR EQUALS" ARE PERMITTED, NECESSARILY MINOR DIFFERENCES BETWEEN PRODUCTS WILL APPEAR. THE GENERAL SERVICES ADMINISTRATION, HOWEVER, SOLICITED BIDS ON CERTAIN BRANDS OR "APPROVED EQUIVALENT" AND DETERMINED, FOR THE REASONS SUMMARIZED ABOVE, THAT THE EQUIPMENT OFFERED BY YOU WAS NOT THE EQUIVALENT OF THAT DESCRIBED IN THE INVITATION FOR BIDS AND OFFERED BY THE SUCCESSFUL BIDDERS. THE CONTRACTING OFFICIALS OF THE GOVERNMENT NECESSARILY ARE VESTED WITH A CERTAIN AMOUNT OF DISCRETION IN SUCH MATTERS AND IN THE ABSENCE OF A CLEAR SHOWING OF BAD FAITH OR A COMPLETE DISREGARD OF THE FACTS WE WOULD NOT BE WARRANTED IN HOLDING THAT THE CONTRACTS WERE ILLEGALLY AWARDED.

WITH RESPECT TO CERTAIN CONTENTIONS IN YOUR LETTER OF PROTEST, THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, REPORTS AS FOLLOWS:

"WHILE IT MAY APPEAR THAT THERE WAS AN UNUSUAL DELAY BETWEEN THE BID OPENING DATE AND FINAL AWARD, THIS WAS PRIMARILY DUE TO THE TECHNICAL REQUIREMENTS OF THE INSTRUMENTS INVOLVED WHICH REQUIRED A REVIEW OF THE BIDS NOT ONLY BY THIS OFFICE BUT ALSO BY QUALIFIED MICROSCOPISTS OF HOWARD UNIVERSITY. THE PROFESSORS OF HOWARD UNIVERSITY WHO WERE TO BE THE ULTIMATE USERS OF THE INSTRUMENTS CONCERNED, OF NECESSITY HAD TO CONTINUE TEACHING THEIR CLASSES, AND THE TIME THEY WERE ABLE TO DEVOTE TO THIS PROJECT WAS LIMITED AND AT IRREGULAR INTERVALS.

"PARAGRAPH SIX OF THE OPPLEM LETTER WOULD LEAD ONE TO BELIEVE THAT OUR OFFICE CAUSED A DELAY IN ARRANGING A MEETING. THIS IS NOT TRUE AS YOU WILL NOTE FROM THE FOLLOWING RECORD.

"A TELEGRAM DATED FRIDAY, APRIL 27, 1956, WAS RECEIVED FROM THE OPPLEM COMPANY PROTESTING THE AWARDS AND REQUESTING THAT THEY BE GIVEN AN OPPORTUNITY TO PRESENT THEIR VIEWS PERSONALLY. IN RESPONSE, OUR LETTER DATED TUESDAY, MAY 3, 1956, ADVISED THEM THAT A MEETING COULD BE ARRANGED AT THEIR CONVENIENCE. THEIR REPLY, LETTER OF MAY 8, 1956, INFORMED US THAT THEY WOULD BE IN WASHINGTON FOR THE RESEARCH EQUIPMENT SYMPOSIUM AT THE NATIONAL INSTITUTES OF HEALTH FROM MAY 14 TO MAY 17 AND THAT THEY WOULD CALL TO ARRANGE AN APPOINTMENT.

"ON MONDAY, MAY 14, MR. PHILLIP OPPLEMAN, VICE PRESIDENT OF OPPLEM COMPANY AND MR. JEROME JACOBSON, A LOCAL CONSULTANT AND REPRESENTATIVE OF GALILEO CORPORATION OF AMERICA, VISITED US AT 9:30 A.M.

"IN REVIEWING THE BIDS WE FEEL THAT WE HAD AMPLE TECHNICAL ASSISTANCE FROM DOCTOR H. E. FINLEY OF HOWARD UNIVERSITY, WITH 27 YEARS EXPERIENCE IN THE FIELD OF BIOLOGY. IN THIS CONNECTION YOUR ATTENTION IS INVITED TO THE ENCLOSED COPY OF DOCTOR FINLEY'S MEMORANDUM OF JUNE 6, 1956. EVALUATING THE BIDS THERE WAS NO PREJUDICE AGAINST FOREIGN MADE EQUIPMENT. HAD GALILEO EQUIPMENT BEEN FOUND TO BE RESPONSIVE TO THE SPECIFICATIONS THE OPPLEM BID WOULD HAVE BEEN CONSIDERED IN ACCORDANCE WITH THE BUY AMERICAN ACT REGULATIONS.

"THE OPPLEM COMPANY HAS MADE SEVERAL STATEMENTS IN THEIR LETTER SUCH AS "GSA WAS WRONG TO ACCEPT AT FACE VALUE OUTSIDE CRITICISM OF OUR INSTRUMENTS," ETC.; "IT IS SAID THAT OUR SERVICE IS BAD," AND "THE PROCURING AGENCY HARDLY DISPLAYED OBJECTIVE AND CAREFUL HANDLING OF THE BID.' THIS OFFICE IS UNAWARE OF ANY BASIS FOR THESE REMARKS, AS NO SPECIFIC CRITICISM WAS IN ANY MANNER CONSIDERED WHEN THE BIDS WERE REVIEWED. BIDS WERE HANDLED BY THE PURCHASING OFFICERS IN THE USUAL MANNER IN ACCORDANCE WITH ALL REGULATIONS AND POLICIES OF THE GENERAL SERVICES ADMINISTRATION.

"HOWARD UNIVERSITY, THE REQUISITIONING AGENCY, FURNISHED THE SERVICES OF THEIR OUTSTANDING TECHNICIAN ON MICROSCOPES TO ASSIST THE PURCHASING OFFICER IN COMPARING THE VARIOUS BIDS WITH THE SPECIFICATIONS AND RECOMMENDING AWARDS. THE DEVIATIONS OF THE SUBJECT BIDDER'S PRODUCT WERE NOT CONSIDERED MINOR BUT OF MAJOR PROPORTION.'

ACCORDINGLY, ON THE BASIS OF THE FACTS OF RECORD HERE WE WOULD NOT BE JUSTIFIED IN TAKING ANY FURTHER ACTION IN THIS MATTER.