B-149749, B-149825, OCT. 17, 1962

B-149749,B-149825: Oct 17, 1962

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO REPORT OF SEPTEMBER 20. BEFORE THE SURVEY WAS COMMENCED. - IMPAIRMENT OF ACCURACY TO A LIMIT OF PLUS OR MINUS 25 PERCENT IS OBVIOUSLY UNDESIRABLE. - THIS PARAGRAPH PROVIDES THAT THE SELECTOR SWITCH HAVE A TOTAL OF SIX (6) POSITIONS. THE IMPACT STRENGTH OF THE BROWN (NATURAL) PHENOLIC MATERIAL IS SUPERIOR TO THE BLACK (COLORED) PHENOLIC MOLDED MATERIAL. THEY WERE NOT CRITICAL AND WOULD NOT REQUIRE AMENDMENT. MOMENTARY OVERLOAD: THE PLUS OR MINUS 25 PERCENT TOLERANCE OF THE INITIAL READING AFTER A MOMENTARY OVERLOAD IS A TYPOGRAPHICAL ERROR. THE SHORT TIME OVERLOAD SPECIFIED IN PARAGRAPH 3.4.3.2 IS PLUS OR MINUS 1.5 PERCENT OF THE INITIAL READING.

B-149749, B-149825, OCT. 17, 1962

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO REPORT OF SEPTEMBER 20, 1962, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, FILE REFERENCE R1.3, ON THE PROTESTS OF BRUNO-NEW YORK INDUSTRIES CORPORATION AND SONIC SYSTEMS INC., HEREINAFTER REFERRED TO AS BRUNO AND SONIC, RESPECTIVELY.

THE REPORT SHOWS THAT INVITATION FOR BIDS NO. 126-1361-62 REQUESTED BIDS FOR CERTAIN MULTIMETERS, TO BE MANUFACTURED IN ACCORDANCE WITH SPECIFICATION MIL-M-26896A. INVESTIGATION OF THE BIDS OPENED ON MAY 3, 1962, REVEALED THAT SONIC HAD SUBMITTED THE LOWEST CORRECT BID, AND THAT BRUNO HAD SUBMITTED THE SECOND LOWEST CORRECT BID. THE U.S. NAVY ELECTRONICS SUPPLY OFFICE (ESO) DETERMINED THAT A PREAWARD SURVEY SHOULD BE CONDUCTED AT THE SONIC PLANT. HOWEVER, ON MAY 29, 1962, BEFORE THE SURVEY WAS COMMENCED, BRUNO REQUESTED THAT ACTIVITY TO REVIEW THE SPECIFICATION MIL-M-26896A TO DETERMINE IF IT ADEQUATELY DESCRIBED WHAT THE GOVERNMENT WISHED TO PROCURE, AND POINTED OUT THE FOLLOWING ERRORS:

1. "PAR. 3.4.3.1 MOMENTARY OVERLOAD:--- IMPAIRMENT OF ACCURACY TO A LIMIT OF PLUS OR MINUS 25 PERCENT IS OBVIOUSLY UNDESIRABLE. WE CONSIDER THE LIMIT OF IMPAIRMENT SHOULD NOT EXCEED PLUS OR MINUS 2.5 PERCENT, AFTER THREE TIMES OVERLOAD. REFERENCE PAR. 3.4.3.2 WHICH MORE APPROPRIATELY, RESTRICTS IMPAIRMENT OF ACCURACY TO PLUS OR MINIMUM 1.5 PERCENT, AFTER ONE AND ONE-HALF TIMES OVERLOAD.'

2. "PAR. 3.4.5 RANGE AND FUNCTION SELECTOR SWITCH:--- THIS PARAGRAPH PROVIDES THAT THE SELECTOR SWITCH HAVE A TOTAL OF SIX (6) POSITIONS. SINCE THE COMBINED REQUIREMENTS OF PAR. 3.4.6.1 AND PAR. 3.4.6.2 ESTABLISHES NEED FOR FOUR (4) CURRENT RANGES AND THREE (3) VOLTAGE RANGES, WE CONSIDER THE SELECTOR SWITCH AND OTHER CIRCUITRY MUST PROVIDE FOR A TOTAL OF SEVEN (7) POSITIONS.'

3. "PAR. 3.4.6.12 TRIGGER:--- WE CONSIDER THE PLASTIC SHOULD BE BROWN, NOT BLACK, AND SHOULD MATCH AND CONFORM WITH PAR. 3.4.7.2 INSTRUMENT CASE, BROWN COLORED PLASTIC. ALSO, THE IMPACT STRENGTH OF THE BROWN (NATURAL) PHENOLIC MATERIAL IS SUPERIOR TO THE BLACK (COLORED) PHENOLIC MOLDED MATERIAL. THE PLASTIC SPECIFICATION MIL-M 14, REFERENCED IN EACH OF THESE PARAGRAPHS SHOULD BE MIL-P-14.'

4. "PAR. 4.3.3. GROUP C INSPECTION:--- WE CONSIDER THIS PARAGRAPH SHOULD REFER TO TABLE V RATHER THAN TABLE IV.'

5. "PAR. 4.15 ACCURCY:--- WE CONSIDER THAT THREE (3) RATHER THAN TWO (2) VOLTAGE RANGES, IN ADDITION TO THE FOUR (4) CURRENT RANGES, SHALL BE CHECKED FOR ACCURACY AT FULL SCALE.'

AFTER EXAMINING THE SPECIFICATIONS, AND IN PARTICULAR THE ALLEGED ERRORS, RSO DETERMINED THAT WHILE SUCH ERRORS DID IN FACT EXIST, THEY WERE NOT CRITICAL AND WOULD NOT REQUIRE AMENDMENT. THE ACTIVITY OFFERED THE FOLLOWING EXPLANATIONS FOR EACH OF THE ERRORS:

"/1) PARAGRAPH 3.4.3.1, MOMENTARY OVERLOAD: THE PLUS OR MINUS 25 PERCENT TOLERANCE OF THE INITIAL READING AFTER A MOMENTARY OVERLOAD IS A TYPOGRAPHICAL ERROR. HOWEVER, THE SHORT TIME OVERLOAD SPECIFIED IN PARAGRAPH 3.4.3.2 IS PLUS OR MINUS 1.5 PERCENT OF THE INITIAL READING. THIS REQUIREMENT IS MET, THE TEST AFTER MOMENTARY OVERLOAD COULD NOT POSSIBLY BE PLUS OR MINUS 25 PERCENT AND WOULD INHERENTLY BE IN THE VICINITY OF PLUS OR MINUS 2.5 PERCENT ACCURACY REQUIRED. (WE HAVE BEEN INFORMALLY ADVISED BY THE DEPARTMENT OF THE NAVY THAT BY "IN THE VICINITY OF PLUS OR MINUS 2.5 PERCENT" THE TECHNICAL PERSONNEL MEAN "NO MORE THAN PLUS OR MINUS 2.5 PERCENT").

"/2) PARAGRAPH 3.4.5, RANGE AND FUNCTION SELECTOR SWITCH: THE SIX POSITION SWITCH SPECIFIED IS INCORRECT. IF THE CURRENT RANGES AND VOLTAGE RANGES SPECIFIED IN PARAGRAPHS 3.4.6.1 AND 3.4.6.2 ARE TO BE MET, A SEVEN POSITION SWITCH WOULD HAVE TO BE USED. THIS IS AN OBVIOUS TYPOGRAPHICAL ERROR TO ANY COMPETENT TECHNICIAN.

"/3) PARAGRAPH 3.4.6.12, TRIGGER: APPARENTLY, THE COLOR CHANGE WAS OVERLOOKED BY THE SPECIFICATION WRITER. HOWEVER, EITHER BLACK OR BROWN COLOR FOR THE TRIGGER IS ACCEPTABLE AS LONG AS THE TRIGGER MEETS SUCH REQUIREMENTS AS SHOCK, VIBRATION, BOUNCE, ETC. PARAGRAPH 2.1 OF THE SPECIFICATION STATES THAT THE ISSUE IN EFFECT ON THE DATE OF INVITATION FOR BID APPLIES. THIS INCLUDES SPECIFICATION MIL-M-14 WHICH HAS BEEN SUPERSEDED BY MIL-P-14. MIL-P-14 WAS IN EFFECT ON THE OPENING DATE SPECIFIED IN THIS IFB.

"/4) PARAGRAPH 4.3.3, GROUP C INSPECTION: TABLE IV IS AN OBVIOUS TYPOGRAPHICAL ERROR AND SHOULD READ TABLE V. THERE SHOULD BE NO QUESTION HERE AS TO THE PROPER TABLE.

"/5) PARAGRAPH 4.15, ACCURACY: THIS TYPOGRAPHICAL ERROR SHOULD READ "3 VOLTAGE RANGES.' HOWEVER, IF THE EQUIPMENT WERE TESTED ON TWO RANGES AND MET THE REQUIREMENTS FOR THOSE TWO RANGES, IT WOULD OF NECESSITY MEET THE REQUIREMENTS OF THE THIRD RANGE.'

THE PREAWARD SURVEY CONCLUDED THAT SONIC WAS A RESPONSIBLE BIDDER. HOWEVER, BEFORE AWARD TO SONIC WAS ANNOUNCED, BRUNO PROTESTED, AND THEREAFTER, THE ESO RECONSIDERED THE FACTS OF THE CASE. UPON RECONSIDERATION, THE ESO AGAIN DECIDED THAT THE SPECIFICATION WAS ADEQUATE FOR PURPOSES OF COMPETITION AND FOR PROCURING THE MINIMUM NEEDS OF THE GOVERNMENT. ITS REPORT TO THIS OFFICE RECOMMENDS THAT IT BE PERMITTED TO PROCEED WITH AWARD TO SONIC, WHICH, ON AUGUST 31, 1962, HAD PROTESTED THE DELAY IN AWARD.

WITH REGARD TO ERRORS NOS. 1, 3, 4 AND 5, FOR THE REASONS STATED BY THE ADMINISTRATIVE OFFICE WE THINK THAT THEY WERE OF A MINOR NATURE AND DID NOT PREJUDICE PROSPECTIVE BIDDERS.

HOWEVER, THE SECOND DESCRIBED ERROR IS OF A MORE SERIOUS NATURE. THE SPECIFICATIONS WHICH CONTAIN THAT ERROR ARE AS FOLLOWS:

"3.4.5 RANGE AND FUNCTION SELECTOR SWITCH. THE RANGE AND FUNCTION SELECTOR SHALL BE A COMBINED SWITCH HAVING A TOTAL OF 6 POSITIONS. THE SWITCH SHALL PROVIDE FOR TWO VOLTAGE AND FOUR CURRENT MEASURING RANGES. THE SEQUENCE OF RANGES AND THE SWITCH POSITION MARKINGS SHALL BE THE SAME AS THE MODEL.

"3.4.6 PERFORMANCE.

"3.4.6.1 CURRENT RANGES. THE MULTIMETER SHALL PROVIDE FOUR ALTERNATING CURRENT RANGES OF 0-15, 0-60, 0-150 AND 0-600 AMPERES.

"3.4.6.2 VOLTAGE RANGES. THE MULTIMETER SHALL PROVIDE THREE ALTERNATING CURRENT VOLTAGE RANGES OF 0-150, 0-300, AND 0-600 VOLTS.'

IT IS APPARENT THAT SPECIFICATION 3.4.5 CALLS FOR 2 VOLTAGE RANGES WHILE SPECIFICATION 3.4.6.2 CALLS FOR 3 VOLTAGE RANGES. THE AGENCY REQUIRES 3 VOLTAGE RANGES. ALSO, SPECIFICATION 3.4.5 CALLS FOR A 6 POSITION SWITCH, WHEN IN FACT THE AGENCY REQUIRES A 7 POSITION SWITCH, I.E., ONE POSITION FOR EACH RANGE.

WE ARE INFORMALLY ADVISED THAT THE PROCURING ACTIVITY SAYS IT IS A TECHNICAL IMPOSSIBILITY TO PRODUCE THIS ITEM WITH 7 RANGES AND 6 POSITION SWITCHES. HOWEVER, THIS DOES NOT CHANGE THE POSSIBILITY THAT PROSPECTIVE BIDDERS OR A CONTRACTOR MIGHT AS REASONABLY CONCLUDE THAT THE AGENCY REQUIRED AN ITEM WITH 6 RANGES AND 6 POSITION SWITCHES, AS HE MIGHT CONCLUDE THAT IT DESIRED ONE WITH 7 RANGES AND 7 POSITION SWITCHES. WHILE IT IS TRUE THAT SPECIFICATION 3.4.6.2 CALLS FOR 3 SPECIFIC CURRENT VOLTAGE RANGES, IT IS EQUALLY TRUE THAT SPECIFICATION 3.4.5 CALLS NOT ONLY FOR 2 UNSPECIFIED VOLTAGE RANGES, BUT ALSO, SPECIFICALLY, FOR A 6 POSITION SWITCH. IN VIEW OF THE FACT THAT AN ITEM HAVING 6 POSITION SWITCHES PRESUMABLY MUST HAVE A TOTAL OF 6 RANGES, A BIDDER MIGHT REASONABLY DETERMINE THAT THE ERROR WAS CONTAINED IN SPECIFICATION 3.4.6.2 RATHER THAN SPECIFICATION 3.4.5. THIS POSSIBILITY IS INCREASED BY THE FACT THAT THE PRIOR SPECIFICATION FOR THIS ITEM CALLED FOR ONLY 6 RANGES AND 6 POSITION SWITCHES. A BIDDER KNOWLEDGEABLE OF THIS PRIOR SPECIFICATION SHOULD AT THE VERY LEAST BE SOMEWHAT CONFUSED.

SPECIFICATION 3.4.5 PROVIDES THAT "THE SEQUENCE OF RANGES AND THE SWITCH POSITION MARKINGS SHALL BE THE SAME AS THE MODEL.' SPECIFICATION 3.2 PROVIDES THAT THE PROCUREMENT MODEL SHALL BE THE ONE WHICH SHALL BE AVAILABLE FOR INSPECTION BY PROSPECTIVE BIDDERS AND WILL BE LENT TO THE CONTRACTOR, IN ACCORDANCE WITH THE INVITATION FOR BIDS. SPECIFICATIONS 3.2.1 AND .2 PROVIDE THAT THE PHYSICAL CONSTRUCTION IN THE FEATURES OF THE EQUIPMENT SHALL CONFORM TO THE PROCUREMENT MODEL.

THUS, IT APPEARS THAT THE AMBIGUITY DESCRIBED ABOVE CAN BE CLARIFIED BY REFERENCE TO THE PROCUREMENT MODEL. SEE B-126915, DATED JULY 30, 1956. HOWEVER, YOU HAVE ADVISED US INFORMALLY THAT NO SUCH PROCUREMENT MODEL IS AVAILABLE TO EITHER BIDDERS OR THE CONTRACTOR, AND INDEED, THAT THERE MAY BE IN EXISTENCE NO MODEL CONTAINING 7 RANGES AND 7 POSITION SWITCHES.

WE RECOGNIZE THAT IN PROCUREMENT CONDUCTED UNDER THE PRINCIPLES OF NEGOTIATION, THE GOVERNMENT MAY CLARIFY AN AMBIGUOUS SPECIFICATION. 148135, DATED AUGUST 13, 1962. HOWEVER, IN THE CASE OF COMPETITIVE BIDDING ON GOVERNMENT CONTRACTS, A BIDDER MIGHT BE ABLE TO DETERMINE HIS OWN COMPETITIVE STANDING AFTER THE BIDS ARE EXPOSED BY CLARIFICATION OF THE SPECIFICATIONS. IT HAS CONSISTENTLY BEEN STATED BY THIS OFFICE THAT IT IS IMPROPER TO ALLOW A PARTICULAR BIDDER TO CHANGE HIS BID AFTER THE PUBLIC OPENING TO THE PREJUDICE OF OTHER BIDDERS, AND WE HAVE GENERALLY TAKEN THE POSITION THAT AN AMBIGUOUS BID MAY NOT BE EXPLAINED AFTER OPENING SINCE THE BIDDER WOULD, IN EFFECT, HAVE AN ELECTION AS TO WHETHER OR NOT HE WISHED TO HAVE HIS BID CONSIDERED. 40 COMP. GEN. 393, 396, AND CASES CITED THEREIN. BY ANALOGY, YOU HAVE CORRECTLY DETERMINED THAT IT WOULD BE EQUALLY IMPROPER TO ASK A BIDDER, AFTER BID OPENING, IF HE UNDERSTOOD WHICH OF TWO INCONSISTENT REQUIREMENTS OF A GOVERNMENT SPECIFICATION WAS INTENDED TO BE FOLLOWED.

WE BELIEVE THAT THE SPECIFICATIONS OF THE INSTANT INVITATION WERE NOT SUFFICIENTLY DESCRIPTIVE TO PERMIT FULL AND FREE COMPETITION. THE PRINCIPLES OF FULL AND FREE COMPETITION REQUIRE THAT THE SPECIFICATIONS ACCURATELY REFLECT THE GOVERNMENT'S MINIMUM NEEDS, AND THAT THEY CLEARLY SPELL OUT PRECISELY WHAT IT IS THAT THE GOVERNMENT WISHES TO PURCHASE. OUR OPINION THE SPECIFICATIONS FOR MULTIMETERS MET NEITHER OF THESE CRITERIA. ACCORDINGLY, THE INVITATION IS INVALID AND NO AWARD MAY BE MADE. 10 U.S.C. 2305 (B).

IF AND WHEN THIS PROCUREMENT IS READVERTISED, WE SUGGEST THAT SPECIFICATION MIL-M-26896A BE ..END :