B-151738, AUG. 19, 1963

B-151738: Aug 19, 1963

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IN WHICH YOU ALLEGE THAT THE SPECIFICATIONS FOR A PROCUREMENT OF CERTAIN OSCILLOSCOPES AND CAMERAS BY THE FEDERAL AVIATION AGENCY WERE RESTRICTIVE. THAT YOUR CONCERN AS WELL AS OTHERS WHICH MANUFACTURE ONLY OSCILLOSCOPE CAMERAS WERE UNABLE TO BID. THE OSCILLOSCOPE AND CAMERA UNIT IS INSTALLED IN AIRCRAFT AND IS USED TO FLIGHT-CHECK THE OPERATION OF GROUND BASED TACTICAL AIR NAVIGATION AIDS (TACAN). ARTICLE IV ON PAGE 6 OF THIS INVITATION PROVIDED: "AWARD: AWARD WILL BE MADE ON THE BASIS OF THE LOWEST AGGREGATE BID RECEIVED FOR THE ITEMS AND QUANTITIES ORDERED.'. AMENDMENT NO. 1 TO THE INVITATION WAS ISSUED WHICH CHANGED THE OPENING DATE FOR BIDS FROM APRIL 30. THE FOLLOWING DESCRIPTIONS OF ITEM 1 AND ITEM 2: (ONLY THE NUMBER OF UNITS TO BE BID ON WERE CHANGED) TABLE ITEM UNIT NO.

B-151738, AUG. 19, 1963

TO BEATTIE-COLEMAN, INCORPORATED:

WE REFER TO YOUR LETTER OF JUNE 6, 1963, WITH ENCLOSURES, IN WHICH YOU ALLEGE THAT THE SPECIFICATIONS FOR A PROCUREMENT OF CERTAIN OSCILLOSCOPES AND CAMERAS BY THE FEDERAL AVIATION AGENCY WERE RESTRICTIVE, AND THAT YOUR CONCERN AS WELL AS OTHERS WHICH MANUFACTURE ONLY OSCILLOSCOPE CAMERAS WERE UNABLE TO BID.

THE FEDERAL AVIATION AGENCY STATES THAT IN MARCH, 1963, A REQUIREMENT AROSE FOR DUAL TRACE OSCILLOSCOPES WITH COMPATIBLE CAMERAS FOR USE AT DOMESTIC AND INTERNATIONAL FIELD FACILITIES. THE OSCILLOSCOPE AND CAMERA UNIT IS INSTALLED IN AIRCRAFT AND IS USED TO FLIGHT-CHECK THE OPERATION OF GROUND BASED TACTICAL AIR NAVIGATION AIDS (TACAN). IN OPERATION, THE OSCILLOSCOPE DISPLAYS ELECTRONIC IMPULSE DISCREPANCIES EMANATING FROM THE AIR NAVIGATION AIDS, AND THE CAMERA PICTORIALLY RECORDS SUCH DISCREPANCIES FOR FUTURE STUDY AND ANALYSIS.

ON APRIL 10, 1963, THE FEDERAL AVIATION AGENCY ISSUED INVITATION FOR BIDS NO. 30M-3-1413-B1 FOR THE PROCUREMENT OF THESE OSCILLOSCOPES AND CAMERAS, LISTED AS ITEM 1, 20 OSCILLOSCOPES; ITEM 2, 20 CAMERAS, AND ITEM 3, EXPORT PACKING. ARTICLE IV ON PAGE 6 OF THIS INVITATION PROVIDED:

"AWARD: AWARD WILL BE MADE ON THE BASIS OF THE LOWEST AGGREGATE BID RECEIVED FOR THE ITEMS AND QUANTITIES ORDERED.'

ON APRIL 24, 1963, AMENDMENT NO. 1 TO THE INVITATION WAS ISSUED WHICH CHANGED THE OPENING DATE FOR BIDS FROM APRIL 30, 1963 TO MAY 6, 1963, AND DELETED ITEMS 1 AND 2 FROM THE INVITATION, SUBSTITUTING THEREFOR, THE FOLLOWING DESCRIPTIONS OF ITEM 1 AND ITEM 2: (ONLY THE NUMBER OF UNITS TO BE BID ON WERE CHANGED)

TABLE

ITEM UNIT

NO. SUPPLIES OR SERVICES QTY. UNIT PRICE AMOUNT

1. OSCILLOSCOPE, DUAL TRACE;

TEKTRONIX MODEL 516MOD101, OR

EQUAL, INCLUDING THE MAIN AND

REQUIRED CHARACTERISTICS SET

FORTH HEREIN; COMPLETE WITH TWO

(2) INSTRUCTION MANUALS IN

ACCORDANCE WITH CLAUSE IX

HEREOF .................... (A) 20 EACH $ ------- $ - ---

(B) 30 EACH $ ------- $ - ---

2. CAMERA, TEKTRONIX MODEL C-19,

OR EQUAL; FOR USE WITH ITEM

1. (CAMERA MUST BE COMPATIBLE

WITH UNIT FURNISHED UNDER

ITEM 1) ................... (A) 20 EACH $ ------- $ - ---

(B) 30 EACH $ -------$ -----

THE ADMINISTRATIVE REPORT STATES THAT YOUR CONCERN DID NOT RETURN SIGNED COPIES OF THE ABOVE AMENDMENT PRIOR TO BID OPENING, AS REQUIRED. HOWEVER, SINCE IT APPEARS THAT YOU BID ON THE QUANTITIES LISTED, THE REPORTED OMISSION DOES NOT SEEM TO BE SO MATERIAL AS TO AFFECT THE RESPONSIVENESS OF THE BID.

ON APRIL 17, 1963, YOU FORMALLY PROTESTED TO THE FEDERAL AVIATION AGENCY THE "ALL OR NOTHING" CLAUSE CONTAINED IN THE INVITATION. THE FEDERAL AVIATION AGENCY RESPONDED BY A LETTER DATED APRIL 23, 1963, STATING THAT A SINGLE SUPPLIER OF ITEMS 1 AND 2 WAS NEEDED SINCE THESE ITEMS MUST FUNCTION TOGETHER. THIS LETTER FURTHER STATED THAT THE INVITATION DID NOT PREVENT THE SUBMISSION OF A BID BY A CONCERN WHICH MANUFACTURES ONLY CAMERAS OR BY A CONCERN WHICH MANUFACTURES ONLY OSCILLOSCOPES, AND THAT THE REQUIREMENT OF THE INVITATION WAS THAT A BID BE SUBMITTED ON BOTH ITEMS.

IN RESPONSE TO THE ABOVE INVITATION THREE BIDS WERE RECEIVED, INCLUDING YOURS. YOU STATE IN YOUR LETTER OF MAY 29, 1963, TO THE SMALL BUSINESS ADMINISTRATION, THAT YOU WERE ABLE TO SUBMIT A BID ONLY FOR ITEM 2 OF THE INVITATION, WHICH WAS FOR THE OSCILLOSCOPE CAMERAS, SINCE YOU DO NOT MANUFACTURE OSCILLOSCOPES. YOU STATE THAT YOU QUOTED IN EXACT ACCORDANCE WITH THE CAMERA SPECIFICATIONS ON A UNIT THAT WAS EQUAL TO THE TEKTRONIX MODEL REQUESTED IN THE INVITATION, AND THAT YOU ALSO OFFERED AS AN ALTERNATE A CAMERA WHICH WOULD PERFORM A SIMILAR FUNCTION BUT AT A LOWER PRICE. YOU CONTEND THAT YOUR BID WAS THE LOW BID RECEIVED ON ITEM 2 BECAUSE THE BIDS SUBMITTED BY HEWLETT-PACKARD AND ELECTRONIC TUBE CORPORATION DID NOT MEET THE "BRAND-NAME OR QUAL" REQUIREMENT OF THE SPECIFICATIONS. YOU ASSERT THAT MANY OF YOUR CAMERAS ARE PRESENTLY USED BY DEFENSE CONTRACTORS AND PRIVATE LABORATORIES ON TEKTRONIX OSCILLOSCOPES.

EACH OF THE THREE BIDS RECEIVED BY THE CONTRACTING OFFICER OFFERED TO SUPPLY ONLY ITEM 2 OF THIS PROCUREMENT, NO BIDS HAVING BEEN SUBMITTED FOR ITEM 1. IN VIEW OF THE REQUIREMENT IN ARTICLE IV OF THE INVITATION THAT THE BID SHOULD BE ON BOTH ITEMS THE CONTRACTING OFFICER DETERMINED THAT THE THREE BIDS RECEIVED WERE NON-RESPONSIVE TO THE INVITATION. A DECISION WAS THEN MADE BY THE CONTRACTING OFFICER TO PROCURE THESE ITEMS BY NEGOTIATION PURSUANT TO 41 U.S.C. 252 (C) (2) AND (10). THE CONTRACTING OFFICER'S DETERMINATION AND FINDINGS TO JUSTIFY THE USE OF NEGOTIATION IN THIS PROCUREMENT STATE THAT THE CONTRACTING OFFICER WAS ADVISED BY THE REQUIRING SERVICE THAT THE SUBJECT OF THIS PROCUREMENT HAD BECOME URGENT AND THAT NEGOTIATION WITH TEKTRONIX CORPORATION ON A SOLE SOURCE BASIS SHOULD BE INSTITUTED; THAT THE TIME REQUIRED TO READVERTISE THIS PROCUREMENT BY FORMAL ADVERTISING WOULD SERIOUSLY INJURE THE GOVERNMENT BY DELAYING THE AGENCY PROGRAM FOR FLIGHT INSPECTION OF GROUND FACILITIES. THESE REPRESENTATIONS WERE ACCEPTED BY THE CONTRACTING OFFICER, EXCEPT THAT HE FOUND THAT COMPETITION COULD BE HAD, AND PROPOSALS WERE SOLICITED FROM SEVEN COMPANIES, INCLUDING YOURS, FOR 22 OSCILLOSCOPES AND CAMERAS WHICH THE FEDERAL AVIATION AGENCY THEN REQUIRED. IN RESPONSE TO THIS SOLICITATION TWO PROPOSALS WERE RECEIVED AS FOLLOWS:

TABLE

EXPORT

22 EACH PACKING TOTAL 1. DUMONT LABORATORIES DIV. $34,463.00 $200.00 $34,663.00

FAIRCHILD CAMERA AND

INSTRUMENT CORP. 2. TEKTRONIX, INC. $36,854.40 $511.20 $37,365.60

ON JUNE 21, 1963, DUMONT LABORATORIES DIVISION, FAIRCHILD CAMERA AND INSTRUMENT CORPORATION, WAS AWARDED CONTRACT FA-WA-4622 ON THE BASIS OF THE ABOVE PROPOSAL SUBMITTED BY THAT CONCERN.

THE FEDERAL AVIATION AGENCY STATES THAT ITS PRESENT EQUIPMENT CONSISTS OF OSCILLOSCOPES AND CAMERAS OF MISCELLANEOUS MANUFACTURE, BUT THAT IT HAS BEEN FOUND THAT SYSTEM COMPATIBILITY IS NOT PRESENT IN SUCH EQUIPMENT AND THAT SUCH EQUIPMENT IS INADEQUATE TO DISCOVER ELECTRONIC IMPULSE DISCREPANCIES. IT ALSO STATES THAT IF THE PROCUREMENT WERE FROM MISCELLANEOUS MANUFACTURERS, IT WOULD NOT HAVE THE NECESSARY EQUIPMENT IN THE FIELD TO SIMULATE CONDITIONS UNDER WHICH THE SYSTEM MUST BE CHECKED TO ASSURE THE COMPATIBILITY WHICH IS ESSENTIAL FOR THE EQUIPMENT TO OPERATE CORRECTLY; THAT ITS FIELD PERSONNEL DO NOT HAVE THE TECHNICAL SKILLS TO ACCOMPLISH COMPATIBILITY; AND THAT THE ONLY PRACTICAL METHOD FOR THE GOVERNMENT TO ASSURE THIS COMPATIBILITY IS TO BUY BOTH ITEMS UNDER ONE CONTRACT AS A SYSTEM.

THE QUESTION PRESENTED IS WHETHER THE DETERMINATION TO REQUIRE BIDS FOR THE ITEMS IN THIS PROCUREMENT TO BE IN THE AGGREGATE MADE THE SPECIFICATIONS IN THE INVITATION RESTRICTIVE AND CONSEQUENTLY IN CONTRAVENTION OF THE STATUTES REQUIRING OPEN AND COMPETITIVE BIDDING IN ADVERTISED PROCUREMENTS.

IT IS WELL ESTABLISHED THAT THE DRAFTING OF SPECIFICATIONS DESIGNED TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT AND THE DETERMINATION AS TO WHETHER THE BIDS RECEIVED ARE RESPONSIVE TO SUCH SPECIFICATIONS ARE MATTERS WHICH ARE PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE OFFICE REQUIRING THE MATERIALS OR EQUIPMENT. 21 COMP. GEN. 1132; 1136; B- 134846; JUNE 12, 1958. WHEN A SPECIFICATION LENDS ITSELF TO OPEN COMPETITION AS REQUIRED BY APPLICABLE STATUTES AND IT IS SHOWN, WHEN CONSIDERING ALL OF THE FACTS, THAT ANY RESTRICTIVE PROVISIONS THEREIN ARE NO GREATER THAN NECESSARY TO PROTECT LEGITIMATE INTERESTS OF THE GOVERNMENT, OUR OFFICE WILL NOT INTERVENE.

IN VIEW OF THE UNSATISFACTORY PAST EXPERIENCE BY THE FEDERAL AVIATION AGENCY WITH OSCILLOSCOPES AND CAMERAS MADE BY MISCELLANEOUS MANUFACTURERS, AND IN VIEW OF THE TECHNICAL REQUIREMENTS OF THIS PROCUREMENT, WE DO NOT FEEL THAT WE WOULD BE JUSTIFIED IN OBJECTING IN THIS INSTANCE TO THE AGENCY'S DETERMINATION THAT ITS INTERESTS REQUIRED THE PROCUREMENT OF BOTH THE OSCILLOSCOPES AND THE CAMERAS FROM A SINGLE SOURCE. ACCORDINGLY, WE FIND THAT THE REQUIREMENT FOR AGGREGATE BIDS IN THE INVITATION WAS NOT IN CONTRAVENTION OF THE STATUTES REQUIRING OPEN AND COMPETITIVE BIDDING.

IN THESE CIRCUMSTANCES THE CONTRACTING OFFICER PROPERLY REJECTED AS NONRESPONSIVE THE BIDS WHICH DID NOT COMPLY WITH THE REQUIREMENTS OF THE INVITATION. FOR THE REASONS STATED YOUR PROTEST IS DENIED.