B-140220, OCT. 8, 1959

B-140220: Oct 8, 1959

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 8. AN EXAMINATION OF THE RECORD NOW BEFORE US INDICATES THAT IN RESPONSE TO THE INVITATION WHICH WAS ISSUED ON MARCH 17. IT WAS DETERMINED BY THE FEDERAL SUPPLY SERVICE THAT THE KYOWA NO. KHB-1 "SPECIAL" OFFERED BY YOU WAS NOT EQUAL TO THE MODELS SPECIFIED AND. YOUR BID WAS REJECTED. YOU CONTEST THE AWARD AS MADE AND STATE THAT "BY NOW IT SHOULD BE APPARENT TO EVERYONE THAT NOTHING SHORT OF "IDENTICAL" WILL OBTAIN THE AWARD IN THIS COMMODITY WHICH OF COURSE IS NOT IN LINE WITH YOUR INSTRUCTIONS ON THE RULES OF "OR EQUAL. " " AN EXAMINATION OF THE BID TABULATION SHEET PREPARED BY THE FEDERAL SUPPLY SERVICE INDICATES THAT YOUR BID WAS REJECTED BY THAT SERVICE BECAUSE THE KYOWA EMB-1 "SPECIAL" BINOCULAR MICROSCOPE WHICH YOU PROPOSED TO FURNISH IS CHARACTERIZED BY (1) GEAR TYPE FINE ADJUSTMENT INSTEAD OF A BALL BEARING FINE ADJUSTMENT SPECIFIED IN THE INVITATION.

B-140220, OCT. 8, 1959

TO TOM MEINZE AND ASSOCIATES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 8, 1959, PROTESTING THE DECISION OF THE GENERAL SERVICES ADMINISTRATION TO REJECT YOUR LOW BID FOR FURNISHING MICROSCOPES UNDER INVITATION NO. FN5P-18199-NA-4 17-59.

AN EXAMINATION OF THE RECORD NOW BEFORE US INDICATES THAT IN RESPONSE TO THE INVITATION WHICH WAS ISSUED ON MARCH 17, 1959, BY THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, NATIONAL BUYING DIVISION, YOU SUBMITTED A BID OFFERING TO FURNISH 8 BINOCULAR MICROSCOPES AT $255.00 EACH. THE INVITATION SPECIFIED THE TYPE OF MICROSCOPE REQUIRED AS FOLLOWS:

"BINOCULAR MICROSCOPE, SPENCER 15-MLH, BUILT ON MECHANICAL STAGE, OBJECTIVE ACHROMATIC 10X, 43X, 97X; EYEPIECES 5X AND 10X, TRIPLE REVOLVING NOSE PIECES, ABBE CONDENSER, IRIS DIAPHRAGM AND BLUE GLASS FILTER. EQUAL TO NO. 6551-E IN ILLUSTRATED 1950 CATALOG OF ARTHUR H. THOMAS COMPANY.'

UPON ANALYZING THE BIDS, IT WAS DETERMINED BY THE FEDERAL SUPPLY SERVICE THAT THE KYOWA NO. KHB-1 "SPECIAL" OFFERED BY YOU WAS NOT EQUAL TO THE MODELS SPECIFIED AND, ACCORDINGLY, YOUR BID WAS REJECTED. IN YOUR LETTER OF JULY 8, 1959, YOU CONTEST THE AWARD AS MADE AND STATE THAT "BY NOW IT SHOULD BE APPARENT TO EVERYONE THAT NOTHING SHORT OF "IDENTICAL" WILL OBTAIN THE AWARD IN THIS COMMODITY WHICH OF COURSE IS NOT IN LINE WITH YOUR INSTRUCTIONS ON THE RULES OF "OR EQUAL," "

AN EXAMINATION OF THE BID TABULATION SHEET PREPARED BY THE FEDERAL SUPPLY SERVICE INDICATES THAT YOUR BID WAS REJECTED BY THAT SERVICE BECAUSE THE KYOWA EMB-1 "SPECIAL" BINOCULAR MICROSCOPE WHICH YOU PROPOSED TO FURNISH IS CHARACTERIZED BY (1) GEAR TYPE FINE ADJUSTMENT INSTEAD OF A BALL BEARING FINE ADJUSTMENT SPECIFIED IN THE INVITATION; (2) NOSEPIECE REVOLVES ON SINGLE CONE, WHILE THE SPECIFICATION REQUIRED THAT THE NOSEPIECE REVOLVE ON A DOUBLE CONE PROVIDING FOUR BEARING SURFACES; (3) YOU STATED THAT YOUR REVOLVING NOSEPIECE HAS A "CLICK" STOP, WHILE A NOSEPIECE EQUIPPED WITH A BALL STOP WAS SPECIFIED IN THE INVITATION; (4) THE MIRROR IN YOUR MICROSCOPE IS MOUNTED ON A SINGLE PRONG, WHILE A MIRROR MOUNTED ON TWO PRONGS (FORK TYPE MOUNTING) WAS CALLED FOR; (5) YOUR INSTRUMENT IS EQUIPPED WITH "HAND FOCUS" IN LIEU OF "AUTO-FOCUS," WITH A PRESET STOP TO PREVENT OBJECTIVES FROM CONTACTING SLIDE OR DAMAGING OBJECTIVE OR SLIDE; (6) YOU PROVIDE EYEPIECES 5X, 10X PAIRED INSTEAD OF THE REQUIRED EYEPIECE 5X, 10X PAIRED HUYGENS; (7) YOU PROPOSED PLYWOOD CABINET WITH LOCK AND KEYS IN LIEU OF FINISHED HARDWOOD CABINET WITH LOCK AND KEYS; (8) YOUR MICROSCOPE HAS FLAT TOP EYEPIECES AND NOT "CONICAL TYPE" EYEPIECES REQUESTED, AND (9) WITH YOUR INSTRUMENT THE OBJECTIVE CAN TOUCH OR BUMP THE WALL IF THE MICROSCOPE WERE PLACED OR PUSHED AGAINST A WALL, WHEREAS UNDER THE SPECIFICATIONS THE FEET OF THE MICROSCOPE EXTEND FAR ENOUGH FORWARD TO PREVENT OBJECTIVES FROM TOUCHING A WALL. THESE VARIATIONS OF YOUR KYOWA NO. KHB-1 ,SPECIAL" BINOCULAR MICROSCOPE FROM THE MODELS SPECIFIED IN THE INVITATION WERE DETERMINED BY THE GENERAL SERVICES ADMINISTRATION TO BE MAJOR DEVIATIONS, AND SUCH DETERMINATION WAS VERIFIED BY A REPRESENTATIVE OF THE NATIONAL BUREAU OF STANDARDS.

AT THIS POINT, WE SHOULD LIKE TO POINT OUT THAT WHETHER EQUIPMENT FURNISHED BY A CONTRACTOR IS SUFFICIENT TO COMPLY WITH THE REQUIREMENTS OF THE SPECIFICATIONS IS A MATTER PRIMARILY FOR ADMINISTRATIVE DETERMINATION. FURTHERMORE, IT IS OUR VIEW THAT WHEN THERE EXISTS A SUBSTANTIAL DIFFERENCE OF TECHNICAL OPINION AS TO THE RELATIVE EQUALITY OF TWO PRODUCTS, IT CANNOT BE SAID THAT THE SELECTION OF EITHER TO THE EXCLUSION OF THE OTHER CONSTITUTES A VIOLATION OF THE STATUTORY REQUIREMENTS FOR COMPETITIVE BIDDING, IN THE ABSENCE OF A SHOWING OF FAVORITISM, BAD FAITH, OR A COMPLETE DISREGARD OF INDISPUTABLE FACTS.

THE CONTRACT IN THE PRESENT MATTER WAS AWARDED TO ANOTHER BIDDER ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION THAT THE EQUIPMENT OFFERED BY YOU WAS NOT EQUAL IN ALL MATERIAL RESPECTS TO THAT REQUIRED BY THE GOVERNMENT AND OFFERED BY THE SUCCESSFUL BIDDER. WE FIND NO EVIDENCE OF FAVORITISM OR BAD FAITH ON THE PART OF THE CONTRACTING OFFICIALS NOR DO WE FIND THAT THE AWARD AS MADE WAS THE RESULT OF INCOMPETENCY OR A LACK OF QUALIFICATION ON THE PART OF THE GOVERNMENT'S PERSONNEL. THE FACT THAT YOUR BID WAS LOWER THAN THE BID ACCEPTED IS, OF COURSE, IMPORTANT BUT NOT CONTROLLING IN THE MATTER. THE APPLICABLE LAW REQUIRING ADVERTISING FOR BIDS AND AWARD TO THE LOWEST RESPONSIBLE BIDDER CONTEMPLATES THAT THE LOWEST RESPONSIBLE BIDDER SHALL BE THAT BIDDER WHOSE BID CONFORMS IN ALL MATERIAL RESPECTS TO THE INVITATION. ON THE BASIS OF THE FACTS REPORTED BY THE ADMINISTRATION, THERE APPEARS NO DOUBT THAT YOUR BID DID NOT MEET THE ADVERTISED SPECIFICATIONS IN ALL MATERIAL RESPECTS.

ACCORDINGLY, WE PERCEIVE NO LEGAL BASIS ON WHICH THIS OFFICE MAY QUESTION THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.