B-146307, AUG. 15, 1961

B-146307: Aug 15, 1961

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ESQUIRE: FURTHER REFERENCE IS MADE TO A LETTER DATED JUNE 30. WE HAVE ALSO RECEIVED FROM HONORABLE STEVEN B. THERE WAS ENCLOSED A COPY OF A LETTER DATED JUNE 20. IT BEING ALLEGED THAT THE REQUIRED DESCRIPTIVE LITERATURE WAS FURNISHED WITH THE BID SUBMITTED BY THAT CONCERN AND THAT. THE BID SHOULD NOT HAVE BEEN REJECTED ON THE BASIS THAT IT WAS NOT RESPONSIVE BECAUSE OF FAILURE TO FURNISH THE REQUIRED DESCRIPTIVE DATA. THERE WERE ALSO ENCLOSED COPIES OF AFFIDAVITS EXECUTED BY MISS BARBARA A. IN WHICH IT WAS ALLEGED THAT CERTAIN "DESCRIPTIVE DATA" WERE TRANSMITTED WITH THE COMPANY'S BID. IT APPEARS FROM THE ABSTRACT OF BIDS IN THIS CASE THAT A CONSIDERABLE NUMBER OF BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION.

B-146307, AUG. 15, 1961

TO STEWARD H. CARTER, JR., ESQUIRE:

FURTHER REFERENCE IS MADE TO A LETTER DATED JUNE 30, 1961, WITH ENCLOSURES, FROM MICHAEL W. BENNETT, ESQUIRE, PROTESTING ON BEHALF OF ULTRASONIC INDUSTRIES, INC., THE AWARD OF A CONTRACT TO ACOUSTICA ASSOCIATES, INC., OF LOS ANGELES, CALIFORNIA, PURSUANT TO INVITATION FOR BIDS NO. 189-377-61, ISSUED BY THE NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA, UNDER DATE OF APRIL 17, 1961. WE HAVE ALSO RECEIVED FROM HONORABLE STEVEN B. DEROUNIAN, HOUSE OF REPRESENTATIVES, LETTERS DATED JUNE 30, AND JULY 19, 1961, TRANSMITTING COPIES OF CERTAIN DOCUMENTS AND INDICATING HIS INTEREST IN THE ACTION TO BE TAKEN BY OUR OFFICE IN THIS CASE.

WITH THE LETTER OF JUNE 30, 1961, THERE WAS ENCLOSED A COPY OF A LETTER DATED JUNE 20, 1961, FROM ULTRASONIC INDUSTRIES, INC., TO THE NAVAL SUPPLY CENTER, PROTESTING THE AWARD OF A CONTRACT IN THIS CASE, IT BEING ALLEGED THAT THE REQUIRED DESCRIPTIVE LITERATURE WAS FURNISHED WITH THE BID SUBMITTED BY THAT CONCERN AND THAT, THEREFORE, THE BID SHOULD NOT HAVE BEEN REJECTED ON THE BASIS THAT IT WAS NOT RESPONSIVE BECAUSE OF FAILURE TO FURNISH THE REQUIRED DESCRIPTIVE DATA. THERE WERE ALSO ENCLOSED COPIES OF AFFIDAVITS EXECUTED BY MISS BARBARA A. JEWETT AND MR. PAUL M. PLATSMAN UNDER DATE OF JUNE 29, 1961, IN WHICH IT WAS ALLEGED THAT CERTAIN "DESCRIPTIVE DATA" WERE TRANSMITTED WITH THE COMPANY'S BID.

THE RECORD SHOWS THAT BY THE CITED INVITATION THE NAVAL SUPPLY CENTER OF NORFOLK, VIRGINIA, REQUESTED BIDS--- TO BE OPENED AT 1:30 P.M. ON MAY 5, 1961--- FOR FURNISHING CERTAIN INDICATED SUPPLIES. IT APPEARS FROM THE ABSTRACT OF BIDS IN THIS CASE THAT A CONSIDERABLE NUMBER OF BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE FIRST AND SECOND LOWEST BIDS WERE REJECTED BECAUSE THE EQUIPMENT PROPOSED TO BE FURNISHED WAS NOT IN ACCORDANCE WITH THE SPECIFICATIONS. THE THIRD LOW BID SUBMITTED BY ULTRASONIC INDUSTRIES, INC., WAS HELD NOT TO BE ACCEPTABLE FOR THE REASON THAT THE REQUIRED DESCRIPTIVE DATA WAS NOT FURNISHED. ACCORDINGLY, THE BID WAS CONSIDERED TO BE NON-RESPONSIVE.

RESPECTING THE ALLEGATION BY ULTRASONIC INDUSTRIES THAT THE REQUIRED DESCRIPTIVE LITERATURE WAS FURNISHED WITH ITS BID, THE COMMANDING OFFICER OF THE NAVAL SUPPLY CENTER MADE THE POSITIVE STATEMENT IN A MEMORANDUM DATED JULY 6, 1961, THAT ULTRASONIC INDUSTRIES, INC., DID NOT FURNISH SUCH LITERATURE WITH THEIR BID. AS SHOWING THE POSITION TAKEN BY THE DEPARTMENT OF THE NAVY IN THIS CASE, WE QUOTE THE FOLLOWING LANGUAGE FROM THE MEMORANDUM OF JULY 6, 1961:

"3. THE BRAND NAME OF EQUAL CLAUSE USED IN THIS INVITATION FOR BID WAS AS PRESCRIBED IN ARMED SERVICES PROCUREMENT REGULATION PARAGRAPH 1 1206. ULTRASONIC INDUSTRIES DID NAME AN ALTERNATE BRAND OF MATERIAL WHICH THEY PROPOSED TO FURNISH, AND DID MAKE A STATEMENT THAT THE MATERIAL BEING OFFERED WAS EQUAL TO THAT OUTLINED IN THE SCHEDULE. HOWEVER, THEY DID NOT COMPLY WITH THE MANDATORY REQUIREMENTS OF GIVING A FULL DESCRIPTION OF THE MATERIAL OR FURNISH A STATEMENT EXPLAINING THE DIFFERENCES BETWEEN THE ITEM OFFERED AND THE BRAND NAMED ITEMS CITED IN THE INVITATION FOR BID.

UPON THE BASIS OF THE RECORD IT WAS DETERMINED THAT THE BID OF ULTRASONIC INDUSTRIES, INC., WAS NON-RESPONSIVE, SINCE UNDER PARAGRAPH 1-1206 OF THE ARMED SERVICES PROCUREMENT REGULATION IT WAS INCUMBENT UPON THE BIDDER TO SUPPLY SUCH DESCRIPTIVE INFORMATION. IT IS A LONG ESTABLISHED RULE OF OUR OFFICE TO ACCEPT THE ADMINISTRATIVE REPORT IN THOSE CASES WHERE THERE IS A CONTROVERSY AS TO THE FACTS.

THERE ALSO APPEARS TO BE FOR CONSIDERATION THE FACT THAT THE ULTRASONIC CLEANER PROPOSED TO BE FURNISHED BY ULTRASONIC INDUSTRIES, INC.--- ITEM 1 OF THE INVITATION--- DID NOT MEET THE SPECIFICATIONS. IT WAS REPORTED BY THE DEPARTMENT OF THE NAVY THAT FIVE OF THE LOW BIDDERS--- INCLUDING ULTRASONIC INDUSTRIES, INC.--- ACCEPTED AN OFFER TO DEMONSTRATE THEIR EQUIPMENT, IT BEING MADE CLEAR, HOWEVER, THAT THESE DEMONSTRATIONS WERE IN NO WAY TO OBLIGATE THE GOVERNMENT. RESPECTING SUCH DEMONSTRATIONS, THE OVERHAUL AND REPAIR OFFICE MADE THE FOLLOWING STATEMENT IN A MEMORANDUM DATED JULY 6, 1961:

"MR. PLATMAN, OF ULTRASONIC INDUSTRIES, INC. AND HIS ASSOCIATE, MR. PARKER, DEMONSTRATED THEIR EQUIPMENT TO OVERHAUL AND REPAIR DEPARTMENT PERSONNEL. IT FAILED TO MEET THE SPECIFICATIONS OUTLINED IN THE SUBJECT BID IN THAT THE EQUIPMENT DEMONSTRATED WAS 90 KC MANUAL TUNING, IN LIEU OF THE 28 KC AUTOMATIC TUNING SPECIFIED.'

THE RECORD INDICATES THAT THE TEST (DEMONSTRATION) WHICH TOOK PLACE PRIOR TO THE EVALUATION OF BIDS IS ALSO A FACTOR FOR CONSIDERATION IN CONNECTION WITH THE PROTEST FILED HEREIN. THAT IS TO SAY, EVEN IF IT HAD BEEN DETERMINED THAT THE BID OF ULTRASONIC INDUSTRIES, INC., WAS OTHERWISE ACCEPTABLE, IT WOULD NECESSARILY HAVE BEEN REJECTED ON THE GROUNDS THAT THE ULTRASONIC CLEANER PROPOSED TO BE FURNISHED DID NOT MEET THE SPECIFICATIONS.

UNDER THE FACTS REPORTED IT DOES NOT APPEAR THAT THE ACTION OF THE CONTRACTING OFFICER IN AWARDING A CONTRACT IN THIS CASE WAS IMPROPER OR THAT ANY INJUSTICE HAS BEEN DONE THE PROTESTING BIDDER. ACCORDINGLY, THE PROTEST FILED HEREIN IS DENIED.