B-148296, MAY 4, 1962

B-148296: May 4, 1962

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TO WESTERN X-RAY COMPANY: REFERENCE IS MADE TO THAT PORTION OF YOUR LETTER OF FEBRUARY 26. IT IS YOUR CONTENTION THAT THE SPECIFICATIONS IN THE INVITATION ARE RESTRICTIVE IN THAT THE ONLY MACHINE CAPABLE OF MEETING THE SPECIFICATIONS IS THE ONE MANUFACTURED BY GENERAL ELECTRIC AND THEREFORE THE INVITATION WAS A MERE FORMALITY BY WHICH ALL COMPETITION WAS EFFECTIVELY EXCLUDED. THAT A TYPOGRAPHICAL ERROR IN GENERAL ELECTRIC'S "ARISTOCRAT" X-RAY TABLE SPECIFICATION WAS APPARENTLY COPIED DIRECTLY INTO THE INVITATION FOR BIDS. IS NOT IDENTIFIED IN YOUR LETTER. YOU CONTEND FURTHER THAT YOUR EXCLUSION FROM THIS PROCUREMENT IS IN CONTRADICTION OF THE EXPRESS POLICY OF CONGRESS THAT A FAIR PROPORTION OF THE TOTAL FEDERAL CONTRACTS SHALL BE PLACED WITH SMALL BUSINESS CONCERNS.

B-148296, MAY 4, 1962

TO WESTERN X-RAY COMPANY:

REFERENCE IS MADE TO THAT PORTION OF YOUR LETTER OF FEBRUARY 26, 1962, PROTESTING AWARD OF A CONTRACT TO THE GENERAL ELECTRIC COMPANY UNDER INVITATION FOR BIDS NO. 45-613-62-25, ISSUED BY FAIRCHILD AIR FORCE BASE, WASHINGTON, WHICH CALLED FOR BIDS ON ONE X-RAY APPARATUS, RADIOGRAPHIC AND FLUOROSCOPIC, 300 MA UNIT COMPLETE AND INSTALLED BY THE CONTRACTOR.

IT IS YOUR CONTENTION THAT THE SPECIFICATIONS IN THE INVITATION ARE RESTRICTIVE IN THAT THE ONLY MACHINE CAPABLE OF MEETING THE SPECIFICATIONS IS THE ONE MANUFACTURED BY GENERAL ELECTRIC AND THEREFORE THE INVITATION WAS A MERE FORMALITY BY WHICH ALL COMPETITION WAS EFFECTIVELY EXCLUDED. IN SUPPORT OF YOUR CONTENTION THAT THE SPECIFICATIONS FAVOR GENERAL ELECTRIC, YOU ALLEGE IN YOUR LETTER OF FEBRUARY 26, 1962, TO THE SECRETARY OF THE AIR FORCE, THAT A TYPOGRAPHICAL ERROR IN GENERAL ELECTRIC'S "ARISTOCRAT" X-RAY TABLE SPECIFICATION WAS APPARENTLY COPIED DIRECTLY INTO THE INVITATION FOR BIDS. THE ERROR TO WHICH YOU REFER, HOWEVER, IS NOT IDENTIFIED IN YOUR LETTER. YOU CONTEND FURTHER THAT YOUR EXCLUSION FROM THIS PROCUREMENT IS IN CONTRADICTION OF THE EXPRESS POLICY OF CONGRESS THAT A FAIR PROPORTION OF THE TOTAL FEDERAL CONTRACTS SHALL BE PLACED WITH SMALL BUSINESS CONCERNS.

BY REPORT DATED MARCH 29, 1962, THE DEPARTMENT OF THE AIR FORCE ADVISES THAT IN PREPARING THE SPECIFICATIONS FOR THIS INVITATION, THE GENERAL ELECTRIC BROCHURE WAS NOT USED EXCLUSIVELY BUT WAS REFERRED TO ONLY TO THE SAME EXTENT AS THE BROCHURES OF WESTINGHOUSE, KELEKET, PROFEXRAY, PICKER AND MATTERN, AS WELL AS FEDERAL SPECIFICATION GGX 635-A. NEITHER THE CONTRACTING OFFICER NOR THE RADIOLOGISTS WHO ADVISE HIM HAVE BEEN ABLE TO IDENTIFY THE ERROR WHICH YOU ALLEGE APPEARS IN BOTH THE GENERAL ELECTRIC BROCHURE AND THE INVITATION. THE REPORT STATES THAT THE SPECIFICATIONS IN THE INVITATION WERE NOT DERIVED FROM BROCHURES ALONE BUT ALSO FROM CURRENT TECHNICAL PUBLICATIONS AND FROM A THOROUGH KNOWLEDGE OF THE SPECIALIZED REQUIREMENTS OF THE FAIRCHILD BASE HOSPITAL. THE HOSPITAL HAS DOCTORS ASSIGNED WHO REPRESENT ALL MAJOR SPECIALTIES AND A NUMBER OF MINOR SPECIALTIES, REQUIRING X-RAY EQUIPMENT WHICH HAS ALL MECHANICAL AND ELECTRONIC VERSATILITY ALLOWED BY THE PRESENT STATE OF THE ART. IN THIS CONNECTION THE AIR FORCE POINTS OUT THE FOLLOWING STATEMENT IN YOUR LETTER OF JANUARY 29, 1962, TO THE BOARD RADIOLOGIST OF FAIRCHILD HOSPITAL:

"AS I MENTIONED TO YOU LAST FRIDAY, I DEFINITELY FEEL THAT THE SPECIFICATIONS ARE NOT RESTRICTIVE, PARTICULARLY IF YOUR ACCEPTANCE OR REJECTION OF ANY PROPOSAL IS BASED ON GOOD DESIGN, FUNCTION, AND QUALITY OF MATERIAL AND WORKMANSHIP; AND NOT ON DIFFERENCES THAT EXIST BASICALLY BETWEEN ANY TWO DIFFERENT MANUFACTURERS. I DO BELIEVE THAT ANY X-RAY SPECIFICATIONS CAN BE VERY RESTRICTIVE DEPENDING ON INTERPRETATION.

"AGAIN, LET ME EXPRESS THAT WESTERN X-RAY COMPANY IS OF THE OPINION THAT THE SPECIFICATIONS, AS OUTLINED, ARE COMPLETELY IN ACCORD WITH THE NEEDS AND REQUIREMENTS OF THE X-RAY DEPARTMENT OF THE HOSPITAL. AS A RESULT, I AM CERTAIN THAT EQUIPMENT WILL BE PURCHASED TO INSURE THE FINEST IN DIAGNOSTIC X-RAY FACILITIES FOR THE FAIRCHILD AIR FORCE HOSPITAL.'

AN ABSTRACT OF THE BIDS OPENED ON JANUARY 25, 1962, DISCLOSES THAT WESTERN X-RAY QUOTED PRICES ON TWO DIFFERENT MODELS AT $16,618 AND $18,939, WHILE GENERAL ELECTRIC BID ON ONE MODEL PRICED AT $17,450 AND PICKER X-RAY CORPORATION ALSO BID ON ONE MODEL AT A PRICE OF $18,000. THE STAFF RADIOLOGIST OF THE FAIRCHILD HOSPITAL COMPLETED AN ANALYSIS OF YOUR BID ON FEBRUARY 7, 1962, AND REPORTED 10 INSTANCES IN WHICH THE PROFEXRAY MACHINE YOU ORDERED DEVIATED FROM THE SPECIFICATIONS. HE CONSIDERED THESE DEVIATIONS IMPORTANT IN THAT THEY SEVERELY LIMIT THE EFFICIENCY OR THE USEFULNESS OF THE EQUIPMENT FOR ITS INTENDED APPLICATION. UPON ADVICE FROM THE BASE JUDGE ADVOCATE THAT A SINGLE MAJOR DEVIATION FROM THE SPECIFICATIONS CONSTITUTES ADEQUATE GROUNDS FOR REJECTION OF A BID, THE CONTRACTING OFFICER ADVISED BY LETTER OF FEBRUARY 8, 1962, THAT YOUR BID WAS REJECTED FOR FAILURE TO CONFORM TO THE ESSENTIAL REQUIREMENTS IN THE INVITATION AND LISTED FOUR OF THE 10 DEVIATIONS FOUND BY THE STAFF RADIOLOGIST.

IN YOUR LETTER OF FEBRUARY 9, 1962, TO THE CONTRACTING OFFICER YOU PROTESTED REJECTION OF YOUR BID AND ALLEGED, CONTRARY TO THE STATEMENT IN YOUR LETTER OF JANUARY 29, 1962, THAT THE SPECIFICATIONS WERE RESTRICTIVE AND FAVORED ONE MANUFACTURER, GENERAL ELECTRIC. THE CONTRACTING OFFICER REJECTED YOUR PROTEST BY LETTER OF FEBRUARY 15, 1962, AND AWARDED THE CONTRACT TO GENERAL ELECTRIC ON FEBRUARY 16, 1962. THE EQUIPMENT WAS DELIVERED ON FEBRUARY 28, 1962.

THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND FOR DETERMINING FACTUALLY WHETHER ARTICLES OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS IS PRIMARILY AN ADMINISTRATIVE RESPONSIBILITY OF THE PROCURING AGENCY. 17 COMP. GEN. 554. WHILE IT IS THE DUTY OF OUR OFFICE TO DETERMINE WHETHER SPECIFICATIONS AS WRITTEN ARE UNDULY RESTRICTIVE OF COMPETITION, THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEED IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. COMP. GEN. 368; 33 ID. 586. THERE IS NO REQUIREMENT THAT THE GOVERNMENT PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TOBE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE PARTICULAR NEEDS OF THE AGENCY.

THE RECORD BEFORE US DOES NOT SUPPORT THE CONCLUSION THAT THE SPECIFICATIONS IN THIS INVITATION ARE RESTRICTIVE NOR IS THERE ANY INDICATION THAT THE SPECIFICATIONS DESCRIBE MORE THAN THE MINIMUM REQUIREMENTS OF THE FAIRCHILD HOSPITAL FOR X-RAY EQUIPMENT. ON THE CONTRARY, THE FACTS AND CIRCUMSTANCES HERE INDICATE THAT THE BID SPECIFICATIONS WERE BASED ON FEDERAL SPECIFICATION GG-X-635A, DATED OCTOBER 4, 1956, AND BROUGHT UP TO DATE BY REFERENCE TO NEWER FEATURES DESCRIBED IN THE BROCHURES OF ALL MAJOR MANUFACTURERS OF X-RAY EQUIPMENT.

DESPITE CERTAIN ADDITIONS TO THE BASIC FEDERAL SPECIFICATIONS TO INCLUDE RECENT TECHNOLOGICAL ADVANCES IT IS OUR OPINION THAT IN THE MOST SIGNIFICANT INSTANCE IN WHICH YOUR BID FAILED TO MEET THE REQUIREMENTS OF THE INVITATION, THE BID SPECIFICATIONS WERE TAKEN DIRECTLY FROM PARAGRAPH 3.3.5.1 OF FEDERAL SPECIFICATION GG-X-635A WITH NO MODIFICATION. THAT PARAGRAPH PROVIDES AS FOLLOWS:

"3.3.5.1 MA TECHNIQUE.--- EACH CONTROL SHALL HAVE A MILLIAMPERE TECHNIQUE SELECTOR PROVIDING FOR AT LEAST SEVEN STATIONS OF FIXED MILLIAMPERE TECHNIQUE, PLUS A FLUOROSCOPIC AND SPOT-FILM POSITION. THE MA VALUE OF THESE STATIONS SHALL BE AS INDICATED IN THE INVITATION FOR BIDS.'

THE AIR FORCE REPORTS THAT THE PROFEXRAY CONTROL INCLUDES ONLY FIVE RADIOGRAPHIC MA STATIONS PLUS ONE COMBINATION FLUOROSCOPIC-SPOT FILM STATION. THIS IS CONSIDERED TO BE A SEVERE LIMITATION OF CHOICES OF MILLIAMPERAGE. SINCE FILM DENSITY IS A PRODUCT OF TIME AND MA, THE VALUES REQUESTED, SEVEN MA STATIONS AND 19 TIMER STATIONS, ALLOW 133 CHOICES REGARDING DENSITY, WHILE THE PROFAXRAY EQUIPMENT AS BID HAS FIVE MA STATIONS AND 15 TIMER STATIONS, ALLOWING ONLY 90 CHOICES. IN THIS REGARD, THE PROFEXRAY EQUIPMENT HAS A CAPABILITY OF APPROXIMATELY ONE-THIRD LESS THAN REQUESTED AND IS CONSIDERED INADEQUATE FOR CURRENT AND INTENDED USE AT THE FAIRCHILD HOSPITAL. IN THESE CIRCUMSTANCES, ACCEPTANCE OF YOUR BID COULD ONLY HAVE BEEN ACCOMPLISHED BY A WAIVER OF THE REQUIREMENTS SET OUT IN THE INVITATION. WHILE IT IS TRUE THAT MINOR DEVIATIONS MAY BE WAIVED, OUR OFFICE HAS CONSISTENTLY HELD THAT DEVIATIONS WHICH AFFECT THE QUALITY, QUANTITY OR PRICE OF ARTICLES OFFERED, SO AS TO BE PREJUDICAL TO THE RIGHTS OF OTHER BIDDERS, ARE MAJOR DEVIATIONS WHICH MAY NOT BE WAIVED. COMP. GEN. 179; 17 ID. 554. ACCEPTANCE OF YOUR BID WOULD HAVE BEEN MANIFESTLY UNFAIR, NOT ONLY TO OTHER BIDDERS WHO MAY HAVE BEEN ABLE TO BID LOWER PRICES WITH KNOWLEDGE OF LESS STRICT REQUIREMENTS, BUT ALSO TO OTHER PROSPECTIVE BIDDERS WHOSE PRODUCTS DO NOT MEET THE BID REQUIREMENTS BUT MAY HAVE BEEN ACCEPTABLE UNDER A RELAXATION OF THOSE REQUIREMENTS.

FOR THE REASONS STATED, WE ARE OF THE OPINION THAT REJECTION OF YOUR BID UNDER THE INVITATION IN QUESTION WAS PROPER. IN VIEW OF THE MAJOR DEVIATION ON MILLIAMPERE CONTROL STATIONS WHICH MAY NOT BE WAIVED, IT IS UNNECESSARY TO CONSIDER WHETHER OTHER DEVIATIONS IN YOUR BID ARE MAJOR OR MINOR AND WHETHER OR NOT THEY MAY BE WAIVED.

WITH REGARD TO YOUR CONTENTION THAT YOUR FAILURE TO RECEIVE AN AWARD IN THIS CASE CONTRAVENES THE POLICY OF CONGRESS THAT A FAIR PROPORTION OF THE TOTAL FEDERAL CONTRACTS SHALL BE PLACED WITH SMALL BUSINESS CONCERNS, WE NOTE THAT IN YOUR LETTER OF JANUARY 25, 1962, ACCOMPANYING YOUR BID, YOU STATE THAT APPROXIMATELY 500 PROFEXRAY DIAGNOSTIC UNITS HAVE BEEN PURCHASED FOR THE GOVERNMENT BY THE MILITARY MEDICAL SUPPLY AGENCY AND, ALSO, 150 FIELD X-RAY UNITS AND 750 DENTAL X-RAY UNITS HAVE BEEN FURNISHED FOR CIVIL DEFENSE. IN VIEW OF THIS VOLUME OF GOVERNMENT BUSINESS BY PROFEXRAY, WE CANNOT REGARD REJECTION OF A BID ON PROFEXRAY EQUIPMENT IN THIS ONE INSTANCE AS EVIDENCE THAT SMALL BUSINESS IS NOT RECEIVING ITS FAIR SHARE OF GOVERNMENT CONTRACTS.