B-152340, DEC. 5, 1963

B-152340: Dec 5, 1963

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JOHN OSTER MANUFACTURING CO.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 16. THE INVITATION WAS ISSUED ON MAY 9. AMENDMENT NO. 1 WAS ISSUED 28 MAY 1963. THREE OTHER BIDS WERE RECEIVED INCLUDING THE BID OF LEAR SIEGLER. IN THE TOTAL PRICE OF IT IS YOUR CONTENTION THAT YOUR BID. TO THE GOVERNMENT CONTRACTING OFFICER YOU PROTESTED THE AWARD TO ANYONE OTHER THAN YOUR FIRM SINCE YOUR BID WAS THE LOWEST SUBMITTED ON THE SUBJECT INVITATION. THE RECORD SHOWS THAT ALTHOUGH YOU SUBMITTED THE LOWEST BID YOUR BID WAS HELD TO BE TECHNICALLY NON-RESPONSIVE IN THAT THE PRODUCT OFFERED DID NOT CONFORM TO THE SPECIFICATIONS OF THE INVITATION FOR BID. THAT THE AWARD WAS MADE TO LEAR SIEGLER. IS YOUR CONTENTION THAT YOUR BID.

B-152340, DEC. 5, 1963

TO AVIONIC DIVISION, JOHN OSTER MANUFACTURING CO.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 16, 1963, PROTESTING THE AWARD OF CONTRACT TO ANY FIRM OTHER THAN YOURS UNDER DEPARTMENT OF THE AIR FORCE INVITATION NO. 33-657-63-308.

THE INVITATION AS AMENDED BY AMENDMENT NO. 1, SOLICITED BIDS FOR FURNISHING 209 ATTITUDE INDICATORS, TYPE ARU-2B/A. THE INVITATION WAS ISSUED ON MAY 9, 1963, WITH AN OPENING DATE OF JUNE 11, 1963. AMENDMENT NO. 1 WAS ISSUED 28 MAY 1963, FOR THE PURPOSE OF SUBSTITUTING SPECIFICATION MIL-I-27193B, DATED MARCH 28, 1963, AS AMENDED BY EXHIBIT 1 THERETO IN LIEU OF SPECIFICATION MIL-I-2719B, DATED MARCH 8, 1963. YOU SUBMITTED A BID DATED JUNE 7, 1963, IN THE TOTAL PRICE OF $409,901.80. THREE OTHER BIDS WERE RECEIVED INCLUDING THE BID OF LEAR SIEGLER, INCORPORATED, INSTRUMENT DIVISION, IN THE TOTAL PRICE OF IT IS YOUR CONTENTION THAT YOUR BID, INCLUDING ACCOMPANYING DESCRIPTIVE AND LETTER DATED AUGUST 12, 1963, TO THE GOVERNMENT CONTRACTING OFFICER YOU PROTESTED THE AWARD TO ANYONE OTHER THAN YOUR FIRM SINCE YOUR BID WAS THE LOWEST SUBMITTED ON THE SUBJECT INVITATION. FOLLOWING A MEETING ON AUGUST 14, 1963, BETWEEN AIR FORCE OFFICIALS AND AVIONIC DIVISION REPRESENTATIVES, YOU ADVISED ANOTHER GOVERNMENT OFFICIAL BY TELEGRAM DATED AUGUST 16, 1963, THAT YOU SAW NO REASON TO WITHDRAW YOUR PROTEST.

THE RECORD SHOWS THAT ALTHOUGH YOU SUBMITTED THE LOWEST BID YOUR BID WAS HELD TO BE TECHNICALLY NON-RESPONSIVE IN THAT THE PRODUCT OFFERED DID NOT CONFORM TO THE SPECIFICATIONS OF THE INVITATION FOR BID, AND THAT THE AWARD WAS MADE TO LEAR SIEGLER, INCORPORATED, THE NEXT LOWEST BIDDER. IS YOUR CONTENTION THAT YOUR BID, INCLUDING ACCOMPANYING DESCRIPTIVE LITERATURE, WAS RESPONSIVE TO THE INVITATION.

IT IS REPORTED BY THE DEPARTMENT OF THE AIR FORCE THAT THE ITEM BEING PROCURED IS SAFETY-OF-FLIGHT EQUIPMENT, HIGHLY TECHNICAL AND COMPLEX, AND MUST BE RELIABLE FOR USE AS AIRBORNE ACCESSORIES. THE REQUIREMENT FOR DESCRIPTIVE LITERATURE TO BE FURNISHED PRIOR TO BID OPENING WAS INCLUDED IN THE INVITATION TO ESTABLISH THE CONTRACTOR'S PRODUCT ACCEPTABILITY AS TO DESIGN, MATERIAL, COMPONENTS, PERFORMANCE CHARACTERISTICS, CONSTRUCTION AND ASSEMBLY. PARAGRAPH I OF THE INVITATION FOR BID SCHEDULE, ADVISED ALL BIDDERS OF THE NEED AND USE OF DESCRIPTIVE LITERATURE TO BE FURNISHED BY THEM. IT ALSO SPECIFIED THAT FAILURE OF THE DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMED TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THE INVITATION FOR BID, WOULD REQUIRE REJECTION OF THE BID.

THE BIDS, INCLUDING THE ACCOMPANYING DESCRIPTIVE LITERATURE, WERE EVALUATED BY AIR FORCE ENGINEERING AND TECHNICAL PERSONNEL. YOUR BID WAS DETERMINED TO BE TECHNICALLY NON-RESPONSIVE DUE TO THE FACT THAT, ON THE BASIS OF THE DESCRIPTIVE LITERATURE FURNISHED, THE PRODUCT OFFERED DID NOT CONFORM TO THE SPECIFICATIONS AND REQUIREMENTS OF THE INVITATION FOR BIDS. THE DESCRIPTIVE LITERATURE FURNISHED DID NOT INCLUDE SUFFICIENT DETAILS OF THE PRODUCT OFFERED AS TO DESIGN, CONSTRUCTION AND ASSEMBLY. ADDITIONALLY, THE ENGINEERING EVALUATION DISCLOSED THE FOLLOWING SPECIFIC DEFICIENCIES:

"A. IN FIGURE 4 OF THE DESCRIPTIVE LITERATURE SUBMITTED, THE LOCATION OF THE ELAPSED TIME INDICATOR (ETI) WAS NOT IN ACCORDANCE WITH THE REQUIREMENT OF FIGURE 5 OF THE SPECIFICATION. THE ELAPSED TIME INDICATOR DIAL SHOULD BE LOCATED BEHIND THE AMPLIFIER AS INDICATED BY AN ARROW IN FIGURE 5 OF THE SPECIFICATION AND ITEM 1C OF EXHIBIT 1 ATTACHED THERETO. THE LOCATION OF THE ETI BEHIND THE AMPLIFIER IS OPTIONAL BUT SHOULD NOT DEVIATE FROM THE GENERAL AREA. IT IS NOT DESIRED TO HAVE THE ETI DIAL LOCATED ON THE OUTSIDE OF THE CASE AS SPECIFIED IN FIGURE 4 OF OSTER MANUFACTURING PROPOSAL, WHERE THE INDICATOR GLASS COULD EASILY BE BROKEN.

"B. THE LIGHTING DETAILS SUBMITTED ARE SKETCHY. IN TABLE IV, PAGE 39, IT IS INDICATED THAT EIGHTEEN (18) LAMPS ARE USED. ON PAGE 13, IT IS STATED THAT ONLY TEN (10) LAMPS ARE USED. THE LAMP PLACEMENT IN THE LIGHTING DESIGN NOTED IN FIGURE 4 OF PROPOSAL CONTRADICTS THE LAMP PLACEMENT NOTED IN THE DESIGN SHOWN IN FIGURE 6.

"C. THE DISPLAY SHOWN ON FIGURE 1 OF PROPOSAL HAS DISCREPANCIES IN THAT (I) THE PITCH INDEX MARKS ARE ILLEGIBLE AS THEY APPEAR TO BE BLACK ON A DARK BACKGROUND, (II) THE INCLINOMETER BALL SHOULD BE A WHITE SPHERE AS INDICATED IN PARAGRAPH 3.7.5.2 OF THE SPECIFICATION INSTEAD OF A BLACK SPHERE AS INDICATED IN FIGURE 1 OF PROPOSAL, AND (III) THE MARKINGS OF THE DIVE SECTION OF THE BALL SHOULD BE WHITE INSTEAD OF BLACK AND THE CLIMB SECTION SHOULD BE GRAY INSTEAD OF WHITE. THE MARKINGS AND COLORS REQUIRED ARE SPECIFIED IN PARAGRAPH 1 OF FIGURE 4 OF THE SPECIFICATION.

"D. ON PAGE 7, ARTICLES 3A, B, C AND D OF THE PROPOSAL STATES THAT THE METER MECHANISM SHALL MEET THE REQUIREMENTS OF PARAGRAPHS 2.4, 2.5, 2.8 AND 2.9 OF THE SPECIFICATION. HOWEVER, SUCH PARAGRAPHS DO NOT EXIST IN THE SPECIFICATION.'

AFTER RECEIVING YOUR PROTEST THE DEPARTMENT OF THE AIR FORCE FOUND NO VALID BASIS FOR TAKING EXCEPTION TO THE FINDING OF THE TECHNICAL EVALUATION WHICH RESULTED IN REJECTION OF YOUR BID, AND IT IS NOTED THAT YOU HAVE NOT FURNISHED ANY SPECIFIC INFORMATION TO SUPPORT THE BROAD ALLEGATION THAT YOUR BID WAS RESPONSIVE. EVEN AFTER DISCUSSING THE TECHNICAL EVALUATION IN DETAIL WITH THE AIR FORCE PROJECT ENGINEER YOU RAISED NO SPECIFIC QUESTIONS RELATIVE TO THE MANNER IN WHICH YOUR BID WAS EVALUATED.

THEREFORE, AS IT IS NOT APPARENT FROM THE RECORD THAT THE ADMINISTRATIVE ACTION WAS ARBITRARY OR CAPRICIOUS, WE WILL NOT ATTEMPT TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING AGENCY NOR DO WE PERCEIVE ANY BASIS UPON WHICH WE COULD OBJECT TO THE AWARD TO A HIGHER BIDDER. AGENCIES OF THE GOVERNMENT ARE NOT REQUIRED TO MAKE PURCHASES OF EQUIPMENT NOT FULFILLING THEIR REQUIREMENTS SIMPLY BECAUSE A LOWER PRICE CAN BE OBTAINED IN THAT WAY. WITH RESPECT TO THE QUESTION OF WHETHER OFFERINGS TO THE GOVERNMENT MEET THE GOVERNMENT'S SPECIFICATIONS, IT ISAN ESTABLISHED RULE THAT THESE FACTUAL DETERMINATIONS ARE THE PRIMARY RESPONSIBILITY OF THE PROCURING AGENCIES. SEE 17 COMP. GEN. 554; 19 ID. 587; AND 40 ID. 35.