B-150158, JUL. 17, 1963

B-150158, JUL. 17, 1963

TO TEKTRONIX, INC.:

WE HAVE RECEIVED YOUR LETTERS OF OCTOBER 24, 1962, JANUARY 8 AND 18, MARCH 14 AND 19, AND APRIL 16, 1963, IN WHICH YOU RAISED SEVERAL QUESTIONS REGARDING THE PROCUREMENT PROCEDURES EMPLOYED IN THE AWARD OF CONTRACTS 36/600/-13283 AND -13284 FOR OSCILLOSCOPES, TO BIDDERS OTHER THAN TEKTRONIX, BY MIDDLETOWN AIR MATERIAL AREA, UNITED STATES AIR FORCE. THESE CONTRACTS WERE AWARDED SEPTEMBER 18 AND 19, 1962.

IN YOUR LETTERS OF OCTOBER 24, 1962, AND JANUARY 18, 1963, YOU QUESTION WHETHER THE AIR FORCE REQUEST FOR PROPOSALS SET FORTH REALISTIC DELIVERY DATES IN VIEW OF THE FACT THAT TIME FOR DELIVERY WAS EXTENDED 30 DAYS WITHIN 24 HOURS AFTER THE RECEIPT OF YOUR QUOTATION. THE AIR FORCE REPORTS THAT SINCE YOU WERE THE ONLY FIRM WHICH COULD MEET THE EARLY DELIVERY DATE, AND SINCE YOU HAD QUOTED A PRICE SUBSTANTIALLY HIGHER THAN EITHER OF YOUR COMPETITORS, ADHERENCE TO THE INITIAL DELIVERY SCHEDULE WOULD HAVE COST THE GOVERNMENT A PREMIUM OF $135,000. CONSEQUENTLY, THE DELIVERY REQUIREMENTS WERE REASSESSED AND IT WAS DETERMINED TO BE IN THE BEST INTERESTS OF THE GOVERNMENT TO RESOLICIT PROPOSALS WITH AN OCTOBER DELIVERY DATE. IN ADDITION TO THE DIFFERENCE IN PRICE, IT WAS REALISTICALLY CONCLUDED THAT THE TIME INVOLVED IN REVIEW AND AWARD OF A CONTRACT, AS WELL AS PREPARATION AND ISSUANCE OF SHIPPING DOCUMENTS, MOST LIKELY WOULD PRECLUDE ANY ACTUAL DELIVERY DURING THE MONTH OF SEPTEMBER.

IN YOUR LETTER OF JANUARY 18, 1963, YOU EXPRESS CONCERN IN CONNECTION WITH A COMPETITOR'S FAILURE TO MEET THE REVISED DELIVERY SCHEDULE. THE AIR FORCE ADVISES US THAT THE COMPETITOR WAS DECLARED IN DEFAULT AS TO 200 OSCILLOSCOPES AND WAS CHARGED $65,456 EXCESS COSTS UPON REPROCUREMENT, BUT WAS PERMITTED TO EXTEND THE DELIVERY SCHEDULE FOR THE REMAINING 517 OSCILLOSCOPES AND 1,000 PREAMPLIFIERS FOR A CONSIDERATION OF $6,722. THIS LATTER DETERMINATION WAS MADE AFTER CONSIDERING THE ADMINISTRATIVE TIME ASSOCIATED WITH REPROCUREMENT, AND PRODUCTION LEAD TIME OF OTHER PROSPECTIVE CONTRACTORS. IN REGARD TO YOUR ALLEGATION THAT THE OSCILLOSCOPES ARE OF NO VALUE WITHOUT THE PREAMPLIFIERS, THE AIR FORCE REPORTS THAT IT RECEIVED SUFFICIENT PREAMPLIFIERS WITH THE NOVEMBER DELIVERY TO SATISFY IMMEDIATE NEEDS.

IN YOUR LETTER OF APRIL 16, 1963, YOU ALLEGE THAT THE OSCILLOSCOPES FURNISHED UNDER THE SUBJECT CONTRACTS BY YOUR COMPETITORS MAY NOT HAVE INCLUDED THE PROBES CALLED FOR IN THE PURCHASE DESCRIPTION. THE AIR FORCE ADVISES US THAT, WHILE PROBES DID NOT ACCOMPANY THE FIRST FEW OSCILLOSCOPES SHIPPED BY ONE COMPETITOR, THEY WERE SUPPLIED AFTER THE OMISSION WAS CALLED TO THE CONTRACTOR'S ATTENTION. SINCE THEN THE PROBES HAVE BEEN RECEIVED WITH EACH OF THE OSCILLOSCOPES.

IN YOUR LETTERS OF JANUARY 18 AND MARCH 19, 1963, YOU ALLEGE THAT ONE COMPETITOR FURNISHED OSCILLOSCOPES WITH A TYPE P-2 PHOSPHOR CATHODE RAY TUBE, ALTHOUGH THE PURCHASE DESCRIPTION CALLED FOR A P-31 TYPE OR EQUIVALENT. AFTER CONSIDERABLE INVESTIGATION OF YOUR ALLEGATION, THE AIR FORCE DETERMINED THAT THE FURNISHED P-2 TYPE PHOSPHOR HAD BEEN MANUFACTURED OR MODIFIED IN SUCH A MANNER AS TO BE EQUIVALENT TO THE P 31 TYPE SPECIFIED IN THE PURCHASE DESCRIPTION.

IN YOUR LETTER OF OCTOBER 24, 1962, YOU ALLEGE THAT THE PURCHASE DESCRIPTION CONVEYS THE IMPRESSION THAT THE AIR FORCE INTENDED TO PURCHASE BY PRODUCT TYPE NUMBER AND MANUFACTURER'S BRAND NAME, AND THAT THIS IMPRESSION IS SUBSTANTIATED BY THE FACT THAT IN EVERY CASE, INCLUDING FEDERAL STOCK NUMBER AND INSTRUMENT MODIFICATION, THE NOMENCLATURES ARE DESCRIPTIVE OF TEKTRONIX ITEMS AND ARE DIRECTLY TRACEABLE TO YOUR INSTRUMENT DESIGNATION SYSTEM. THE CONTRACTING OFFICER REPORTS THAT THE PURCHASE DESCRIPTION MADE NO MENTION OF ANY BRAND NAME AND THAT THE AIR FORCE DID NOT INTEND TO PROCURE THE OSCILLOSCOPES BY THAT METHOD. HOWEVER, EACH OF THE THREE SOURCES WAS SOLICITED FOR PROPOSALS BASED ON FURNISHING ITS OWN MODEL NUMBER. IN ADDITION, IT WAS STIPULATED THAT EACH MODEL WOULD BE FURNISHED IN ACCORDANCE WITH THE PURCHASE DESCRIPTION.

IN YOUR LETTER OF MARCH 19, 1963, YOU ALLEGE THAT THE PURCHASE DESCRIPTION WAS WRITTEN ON THE BASIS OF DESIGN RATHER THAN PERFORMANCE SPECIFICATIONS. THE AIR FORCE REPORTS THAT THE PURCHASE DESCRIPTION IS A COMBINATION OF A DESIGN AND PERFORMANCE TYPE SPECIFICATION WHICH WAS DEVELOPED FOR THE PURPOSE OF INSURING THE COMPETITIVE PROCUREMENT OF AN ITEM MEETING MINIMUM REQUIREMENTS, AND THAT THE DESCRIPTION WAS NOT WRITTEN AROUND YOUR PRODUCT. WHILE IT ADMITS THAT THE PURCHASE DESCRIPTION UNDOUBTEDLY DOES CONTAIN SOME FEATURES OF YOUR PRODUCT, AS WELL AS FEATURES OF OTHER BRANDS OF OSCILLOSCOPES, IT STATES THAT THIS RESULT APPEARS UNAVOIDABLE SINCE THE WRITING OF THE DESCRIPTION WAS COORDINATED WITH SEVERAL OSCILLOSCOPE MANUFACTURERS.

IN YOUR LETTER OF OCTOBER 24, 1962, YOU STATE THAT YOU WERE NOT INFORMED OF THE AWARDS UNTIL AFTER THE CONTRACT HAD BEEN SUPPLEMENTED BY THE ADDITION OF PREAMPLIFIER REQUIREMENTS. THE AIR FORCE REPORTS THAT SINCE AWARD OF THE PREAMPLIFIERS, AS WELL AS THE OSCILLOSCOPES, WAS BEING MADE ON THE BASIS OF COMPETITIVE PROPOSALS, IT WAS DETERMINED BY THE CONTRACTING ACTIVITY THAT THE ENTIRE PROCUREMENT SHOULD BE CONSIDERED AS ONE PACKAGE, AND IT WAS FELT THAT NO AWARD INFORMATION SHOULD BE SUPPLIED TO THE OFFERORS UNTIL BOTH THE OSCILLOSCOPES AND THE PREAMPLIFIERS HAD BEEN AWARDED. NEVERTHELESS, THE AIR FORCE STATES THAT UPON REVIEW IT REALIZES THAT IT SHOULD HAVE PROMPTLY NOTIFIED ALL BIDDERS AS SOON AS THE MAJOR PORTION OF THE PROCUREMENT HAD BEEN AWARDED.

THE AIR FORCE REPORTS THAT IT IS CONFIDENT THAT THE TESTING PROCEDURES OUTLINED BY THE ACTIVITY AND SET FORTH IN THE REVISED PURCHASE DESCRIPTION WILL INSURE RECEIPT OF A QUALITY PRODUCT. IN YOUR LETTER OF OCTOBER 24, 1962, AND JANUARY 8, 1963, YOU REQUEST THAT WE REVIEW THE THOROUGHNESS OF THE QUALIFICATION TESTING PROGRAM. THIS WE MUST DECLINE TO DO. AS STATED IN OUR DECISION B-143389, DATED AUGUST 26, 1960:

"THE QUESTION AS TO THE ACTION, IF ANY, WHICH OUR OFFICE SHOULD TAKE IN CASES INVOLVING THE EVALUATION OF TECHNICAL REQUIREMENTS OF SPECIFICATIONS, ETC., HAS BEEN THE SUBJECT OF A NUMBER OF DECISIONS BY OUR OFFICE. YOUR PROTEST IS BASED UPON SUCH AN EVALUATION. OF NECESSITY, OUR OFFICE HAS ESTABLISHED A RULE GOVERNING SUCH SITUATIONS. IN A DECISION DATED JANUARY 8, 1938, TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, PUBLISHED AT 17 COMP. GEN. 554, 557, WE SET FORTH THE FOLLOWING RULE WHICH WE CONSIDER TO BE CONTROLLING IN THE INSTANT MATTER:

" "IT IS IN THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS, AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THOSE SPECIFICATIONS. * * *" (EMPHASIS SUPPLIED.)"

IN VIEW OF THE FACTS REPORTED IN THIS CASE, AND FOR THE REASONS SET OUT IN THE ABOVE-CITED DECISIONS, WE WOULD NOT BE JUSTIFIED IN OBJECTING TO THE ACTIONS TAKEN BY THE ADMINISTRATIVE ..END :