B-147913, APR. 6, 1962

B-147913, APR. 6, 1962

TO THE ADMINISTRATOR, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION:

HEREWITH IS A COPY OF OUR LETTER OF TODAY TO THE ATTORNEY FOR BECKMAN INSTRUMENTS, INC., IN REPLY TO THEIR PROTEST AGAINST THE SPECIFICATION EMPLOYED UNDER CONTRACT NO. NAS5-1911, AWARDED JANUARY 5, 1962. THE MATTER WAS THE SUBJECT OF A LETTER OF FEBRUARY 28, 1962, WITH ENCLOSURES, YOUR REFERENCE ERR:JMC/AES, IN RESPONSE TO OUR REQUEST OF JANUARY 17, 1962.

IT SHOULD BE NOTED THAT WHILE WE HAVE SUSTAINED THE ACTION OF THE CONTRACTING OFFICER THERE APPEAR TO BE TWO UNRESOLVED AND MATERIAL FACTUAL DIFFERENCES IN THE STATEMENTS OF THE CONTRACTING OFFICER AND THE PROTESTING BIDDER. THE CONTRACTING OFFICER'S STATEMENT AT PAGE 6 TAKES THE POSITION THAT BECKMAN PERSONNEL NEVER GAVE ANY INDICATION THAT THE SPECIFICATION WAS LESS THAN COMPLETE AND DEFINITE UNTIL AFTER BID OPENING, ALTHOUGH THEY WERE AWARE OF THE SPECIFICATION TERMS CONSIDERABLY BEFORE THAT TIME AND, IN FACT, HAD BEEN CONSULTED IN THE COURSE OF THEIR PREPARATION. IN A LETTER OF MARCH 6, 1962, FROM THE COUNSEL FOR BECKMAN, A COPY OF WHICH HAS ALREADY BEEN FURNISHED TO A MEMBER OF YOUR STAFF, BECKMAN REPRESENTATIVES ARE SAID TO HAVE POINTED OUT PRIOR TO BID OPENING, TO REPRESENTATIVES OF NASA AND THE CONTRACTOR WHO PREPARED THE SPECIFICATION, THEIR JUDGMENT THAT THE SPECIFICATION WAS TOO INDEFINITE TO PERMIT COMPARISON OF BIDS ON THE BASIS OF PRICE ALONE.

AGAIN THE CONTRACTING OFFICER STATES AT PAGE 5 OF HIS REPORT THAT THE REPRESENTATIVES OF THE CONTRACTOR WHO PREPARED THE SPECIFICATION DID NOT PROPOSE ANY SUGGESTED METHOD OF PROCUREMENT. THIS STATEMENT IS CONTRADICTED BY THE LETTER FROM BECKMAN'S COUNSEL REFERRED TO ABOVE. FURTHER, ATTACHMENT NO. 2 TO YOUR REPORT, MEMORANDUM DATED JULY 25, 1961, STATES IN PART:

"WE CONCUR IN THE CONCLUSIONS REACHED BY OUR CONSULTANTS, AND RECOMMEND THAT THIS CONTRACT BE AWARDED ON A NEGOTIATED BASIS, AND THAT THE EIGHT SUPPLIERS NAMED BY THEM BE INVITED TO SUBMIT PROPOSALS. * * *"

WHILE THE QUOTED SENTENCE IS AMBIGUOUS, THE MOST APPARENT INTERPRETATION APPEARS TO SUPPORT BECKMAN'S POSITION.

IN THE LIGHT OF THE FOREGOING AND SUBSTANTIAL QUESTION PRESENTED WITH RESPECT TO THE SPECIFICATION IT IS RECOMMENDED THAT ACTION BE TAKEN TO INSURE THE USE IN FUTURE ADVERTISED PROCUREMENTS OF CLEAR AND UNAMBIGUOUS SPECIFICATIONS, SETTING FORTH THE ACTUAL NEEDS OF THE AGENCY ONLY.

WITH RESPECT TO THE PROTEST BY THE VIDEO CORPORATION AGAINST THE DETERMINATION THAT ITS BID WAS NONRESPONSIVE, IT IS OUR VIEW THAT THE PROPOSED REPLY INCLUDED AS ATTACHMENT 24 TO YOUR FILE IS CORRECT.