B-151479, AUG. 9, 1963

B-151479: Aug 9, 1963

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INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED MAY 7. RECEIPT IS ALSO ACKNOWLEDGED OF YOUR TELEGRAMS DATED JUNE 14 AND JULY 5. WHICH WAS ISSUED ON NOVEMBER 27. ONE OTHER BID WAS RECEIVED FROM THE PERKIN-ELMER CORPORATION IN A TOTAL NET AMOUNT OF $80. THE AIR FORCE REPORTS THAT BOTH THE LOW BID OF THE PERKIN-ELMER CORPORATION AND YOUR BID WERE CONSIDERED NONRESPONSIVE. BOTH BIDS WERE REJECTED. NEGOTIATIONS OF A FIRM FIXED PRICE CONTRACT WERE INSTITUTED BY THE AIR FORCE WITH BOTH YOU AND THE PERKIN-ELMER CORPORATION. AF 36/600/-15110 WAS MADE ON MAY 7. THAT SOME RELIEF FROM SAID SPECIFICATION MUST HAVE BEEN GRANTED THAT CORPORATION. YOU FURTHER STATE THAT IT IS YOUR UNDERSTANDING THAT THE CORPORATION IS FURNISHING A PERKIN-ELMER 521 INSTRUMENT UNDER THE CONTRACT WHICH PURPORTEDLY COMES CLOSE TO MEETING THE SPECIFICATIONS.

B-151479, AUG. 9, 1963

TO BECKMAN INSTRUMENTS, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED MAY 7, 1963, PROTESTING THE AWARD OF A CONTRACT TO THE PERKIN-ELMER CORPORATION, NORWALK, CONNECTICUT, UNDER DEPARTMENT OF THE AIR FORCE INVITATION NO. 36-600-63- 335. RECEIPT IS ALSO ACKNOWLEDGED OF YOUR TELEGRAMS DATED JUNE 14 AND JULY 5, 1963, IN REGARD TO THE MATTER.

IN RESPONSE TO THE INVITATION, AS AMENDED, WHICH WAS ISSUED ON NOVEMBER 27, 1962, BY HEADQUARTERS, MIDDLETOWN AIR MATERIEL AREA, DIRECTORATE, PROCUREMENT AND PRODUCTION, OLMSTED AIR FORCE BASE, YOU SUBMITTED A BID DATED DECEMBER 19, 1962, OFFERING TO FURNISH FOUR SPECTROPHOTOMETERS, INFRARED, FIXED SCALE, ETC., WITH ACCESSORIES, AT $27,134.75 EACH, F.O.B. DESTINATION, OR FOR A TOTAL PRICE OF $108,539. ONE OTHER BID WAS RECEIVED FROM THE PERKIN-ELMER CORPORATION IN A TOTAL NET AMOUNT OF $80,091. THE AIR FORCE REPORTS THAT BOTH THE LOW BID OF THE PERKIN-ELMER CORPORATION AND YOUR BID WERE CONSIDERED NONRESPONSIVE, IN THAT THE PERKIN BID OFFERED A MODE WHICH DID NOT INCORPORATE THE WAVELENGTH RANGE SPECIFIED IN AMENDMENT 1 OF PURCHASE DESCRIPTIONPD-NE-6650-9 AND YOUR BID HAD BEEN SUBMITTED ON AN F.O.B. DESTINATION BASIS INSTEAD OF F.O.B. ORIGIN, AS REQUIRED BY THE INVITATIONS. THEREFORE, BOTH BIDS WERE REJECTED, INVITATION NO. 36-600 63-335 CANCELED, AND NEGOTIATIONS OF A FIRM FIXED PRICE CONTRACT WERE INSTITUTED BY THE AIR FORCE WITH BOTH YOU AND THE PERKIN-ELMER CORPORATION. AS A RESULT OF SUCH NEGOTIATIONS, THE PERKIN- ELMER CORPORATION SUBSEQUENTLY QUOTED A TOTAL PRICE FOR THE FOUR SPECTROPHOTOMETERS OF $79,964. YOU SUBMITTED A PROPOSAL IN THE TOTAL AMOUNT OF $107,676. ON THE BASIS OF THESE LATTER PROPOSALS AWARD OF CONTRACT NO. AF 36/600/-15110 WAS MADE ON MAY 7, 1963, TO THE LOWEST BIDDER, THE PERKIN-ELMER CORPORATION, IN THE AMOUNT OF $79,964. THE AWARD OF THIS CONTRACT PROMPTED YOUR PROTEST.

IT APPEARS FROM YOUR TELEGRAMS DATED MAY 7 AND JUNE 14, 1963, THAT YOU TAKE THE POSITION THAT THE SPECTROPHOTOMETERS THAT MIGHT BE DELIVERED UNDER THE CONTRACT BY THE PERKIN-ELMER CORPORATION DO NOT MEET SPECIFICATION REQUIREMENTS, THAT SOME RELIEF FROM SAID SPECIFICATION MUST HAVE BEEN GRANTED THAT CORPORATION, AND THAT AN EQUAL OPPORTUNITY SHOULD BE GRANTED TO YOU TO SUBMIT A BID UNDER ANY SUCH NEW SPECIFICATION. YOU STATE THAT TO THE BEST OF YOUR KNOWLEDGE THE PERKIN-ELMER CORPORATION RESPONDED TO THE INVITATION WITH AN OFFER TO FURNISH THEIR MODEL 421 ANALYZER AND THAT SUCH MODEL DOES NOT MEET SPECIFICATION REQUIREMENTS. YOU FURTHER STATE THAT IT IS YOUR UNDERSTANDING THAT THE CORPORATION IS FURNISHING A PERKIN-ELMER 521 INSTRUMENT UNDER THE CONTRACT WHICH PURPORTEDLY COMES CLOSE TO MEETING THE SPECIFICATIONS.

IN CONSIDERING WHETHER ANY RELIEF OR DEVIATION FROM SPECIFICATION REQUIREMENTS WAS PERMITTED IN THIS CASE, ATTENTION IS INVITED TO THE FACT THAT A PURCHASE DESCRIPTION, SUCH AS USED HERE, IS USED ONLY FOR BASIC DESCRIPTIVE PURPOSES BECAUSE OF THE LACK OF A MORE SPECIFIC OR DEFINITIVE TYPE OF SPECIFICATION WHICH WOULD ADEQUATELY SET FORTH THE PERFORMANCE STANDARDS REQUIRED. IN THIS REGARD, THE AIR FORCE REPORTS THAT THE CHANGES WHICH WERE THOROUGHLY EVALUATED AND PERMITTED AND WHICH APPEAR TO HAVE INCLUDED THE PERKIN SPECTROPHOTOMETER, WITH MODIFIED INTERCHANGE, WERE ACCEPTABLE IN THAT SUCH CHANGES TO THE PURCHASE DESCRIPTION DID NOT CHANGE THE INTENT OR PURPOSE OF THE SPECTROPHOTOMETER. THE AIR FORCE REPORTS FURTHER THAT ALL BIDDERS, INCLUDING YOUR CORPORATION, WERE GRANTED AN EQUAL OPPORTUNITY TO SUBMIT THEIR BIDS IN ACCORDANCE WITH PERFORMANCE SPECIFICATIONS AND AS LONG AS ALL SUCH BIDS MEET THE PERFORMANCE SPECIFICATIONS OF THE PURCHASE DESCRIPTION THEY ARE EQUALLY ACCEPTABLE. MOREOVER, IT IS SHOWN THAT A REQUEST WAS MADE FOR A TECHNICAL EVALUATION OF THE BID OF THE PERKIN ELMER CORPORATION, THAT THE COGNIZANT GOVERNMENT ENGINEERING ACTIVITY INDICATED THAT THE CORPORATION'S BID DID NOT ALTER, IN ANY MATTER, THE OPERATING REQUIREMENTS OF THE PURCHASE DESCRIPTION, THAT MODEL NO. 421 OFFERED BY PERKIN IS FUNCTIONALLY INTERCHANGEABLE WITH THE BECKMAN IR 9, THAT THE PERKIN MODEL OFFERED WILL NOT MATERIALLY AFFECT THE MANDATORY PERFORMANCE REQUIREMENTS, AND THAT EITHER THE PERKIN OR BECKMAN MODELS WILL ACHIEVE THE SAME END RESULT CALLED FOR IN THE BASIC PURCHASE DESCRIPTION.

OUR OFFICE CONSISTENTLY HAS HELD THAT THE DETERMINATION AS TO WHETHER A PARTICULAR PRODUCT OFFERED BY A BIDDER COMPLIES WITH SPECIFICATION REQUIREMENTS IS PRIMARILY A FUNCTION OF THE DEPARTMENT OR AGENCY CHARGED WITH THE ADMINISTRATION OF THE CONTRACT--- IN THIS INSTANCE THE DEPARTMENT OF THE AIR FORCE. SUCH A DETERMINATION MUST, OF NECESSITY, BE BASED UPON FACTUAL INFORMATION AVAILABLE TO THE DEPARTMENT OR AGENCY PRIOR TO AWARD AND, IN THE ABSENCE OF A SHOWING OF BAD FAITH OR THE LACK OF A REASONABLE FACTUAL BASIS FOR THE DETERMINATION, OUR OFFICE WILL NOT SUBJECT TO THE CONCLUSION REACHED.

IN VIEW OF THE FOREGOING, WE FIND NO LEGAL OBJECTION TO THE ACTION TAKEN BY THE DEPARTMENT OF THE AIR FORCE IN AWARDING CONTRACT NO. AF 36/600/- 15110 TO THE PERKIN-ELMER CORPORATION ON THE BASIS OF THE LOWEST NEGOTIATED BID RECEIVED.