B-154222, JUN. 24, 1964

B-154222: Jun 24, 1964

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FEDERAL BUREAU OF INVESTIGATION: REFERENCE IS MADE TO YOUR LETTER OF MAY 11. OR IN LIEU THEREOF DID NOT ADD A STATEMENT IN THE BID THAT THE ITEMS OFFERED WERE THE SAME AS ITEMS SUPPLIED UNDER PREVIOUS PROCUREMENTS. SAMPLES WERE REQUIRED TO BE SUBMITTED WITH THE BID ON ITEMS 1. 15 AND 16 AND THE STANDARD PROVISIONS REGARDING SAMPLES AS SET FORTH IN SECTION 1-2.202-4 OF THE FEDERAL PROCUREMENT REGULATIONS WERE INCLUDED AS A PART OF THE GENERAL CONDITIONS OF THE PARTICULAR INVITATION AS FOLLOWS: "8. SAMPLES WILL BE EVALUATED TO DETERMINE COMPLIANCE WITH THE SPECIFICATIONS OR OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS. * * *. "/B) FAILURE OF SAMPLES TO CONFORM TO THE REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID.

B-154222, JUN. 24, 1964

TO MR. N. P. CALLAHAN, CONTRACTING OFFICER, FEDERAL BUREAU OF INVESTIGATION:

REFERENCE IS MADE TO YOUR LETTER OF MAY 11, 1964, REQUESTING A DECISION WHETHER THE BID OF MOTOROLA COMMUNICATIONS AND ELECTRONICS, INCORPORATED, SUBMITTED UNDER INVITATION FOR BIDS NO. 606 SHOULD BE CONSIDERED AS A RESPONSIVE BID SINCE MOTOROLA DID NOT FURNISH SAMPLES, OR IN LIEU THEREOF DID NOT ADD A STATEMENT IN THE BID THAT THE ITEMS OFFERED WERE THE SAME AS ITEMS SUPPLIED UNDER PREVIOUS PROCUREMENTS.

THE INVITATION REQUESTED BIDS ON 19 ITEMS OF FM RADIO EQUIPMENT. SAMPLES WERE REQUIRED TO BE SUBMITTED WITH THE BID ON ITEMS 1, 2, 6, 10, 11, 12, 13, 14, 15 AND 16 AND THE STANDARD PROVISIONS REGARDING SAMPLES AS SET FORTH IN SECTION 1-2.202-4 OF THE FEDERAL PROCUREMENT REGULATIONS WERE INCLUDED AS A PART OF THE GENERAL CONDITIONS OF THE PARTICULAR INVITATION AS FOLLOWS:

"8. (A) BID SAMPLES COMPLETE WITH INSTRUCTION MANUALS IN THE QUANTITIES REQUIRED FOR THE ITEMS SO INDICATED MUST BE FURNISHED AS A PART OF THIS BID AND MUST BE RECEIVED AT THE FEDERAL BUREAU OF INVESTIGATION, 9TH AND PENNSYLVANIA AVE., N.W., WASHINGTON, D.C., BEFORE THE TIME SET FOR OPENING BIDS. SAMPLES WILL BE EVALUATED TO DETERMINE COMPLIANCE WITH THE SPECIFICATIONS OR OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS. * * *.

"/B) FAILURE OF SAMPLES TO CONFORM TO THE REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH SAMPLES BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, * * *.

"/D) HOWEVER, THE REQUIREMENT FOR FURNISHING SAMPLES MAY BE WAIVED AS TO A BIDDER IF (1) THE BIDDER STATES IN HIS BID THAT THE PRODUCT HE IS OFFERING TO FURNISH IS THE SAME AS A PRODUCT HE HAS OFFERED TO THE FEDERAL BUREAU OF INVESTIGATION ON A PREVIOUS PROCUREMENT AND (2) THE CONTRACTING OFFICER DETERMINES THAT SUCH PRODUCT WAS PREVIOUSLY PROCURED OR TESTED BY THE FEDERAL BUREAU OF INVESTIGATION AND FOUND TO COMPLY WITH SPECIFICATION REQUIREMENTS CONFORMING IN EVERY MATERIAL RESPECT TO THOSE IN THIS INVITATION FOR BIDS.'

ALL THE ITEMS INVOLVED ARE COVERED BY DETAILED SPECIFICATIONS. ALSO VARIOUS PROVISIONS OF THE GENERAL CONDITIONS PROVIDE:

"2. THE EQUIPMENT AND COMPONENTS SUPPLIED MUST EQUAL OR EXCEED THE LATEST EIA AND FCC STANDARDS, * * *.

"5. THE EQUIPMENT OFFERED SHOULD BE OF A STANDARD MANUFACTURE AND OF A TYPE AND MODEL HAVING HAD SATISFACTORY ACTUAL USE AND THE LATEST SUCH MODEL AVAILABLE BY THE MANUFACTURER. BIDS OFFERING A MODEL WHICH HAS LITTLE RECENT USE BY OTHER PURCHASERS MAY BE REJECTED FOR THAT REASON.

"11. THE EQUIPMENT SUPPLIED MUST PROVIDE A HIGH DEGREE OF INTELLIGIBILITY AND BE SATISFACTORY WHEN USED WITH SIMILAR MOTOROLA AND GENERAL ELECTRIC EQUIPMENT NOW IN USE BY THE FBI. * * *.'

THE INVITATION PROVIDES THAT ITEMS 1 THROUGH 10 TOGETHER WITH ITEM 13 ARE TO BE AWARDED IN THE AGGREGATE. BIDS WERE RECEIVED ONLY FROM GENERAL ELECTRIC COMPANY AND MOTOROLA ON ITEMS 1 THROUGH 14. MOTOROLA IS THE ONLY BIDDER ON ITEM 15 AND ON ITEM 16 MOTOROLA AND TWO OTHER BIDDERS SUBMITTED BIDS. GENERAL ELECTRIC COMPANY IS THE ONLY BIDDER ON ITEM 17. NO BIDS WERE RECEIVED ON ITEM 18 AND ANOTHER BIDDER IS THE ONLY BIDDER ON ITEM 19.

THE GENERAL ELECTRIC COMPANY DID NOT SUBMIT SAMPLES ON ANY ITEM BUT STATED IN ITS BID:

"THE PRODUCTS OFFERED IN THIS BID ARE THE SAME AS THOSE PREVIOUSLY SUPPLIED TO THE FEDERAL BUREAU OF INVESTIGATION ON PREVIOUS PROCUREMENTS.'

OF THE 16 ITEMS BID UPON BY MOTOROLA, WHICH INCLUDED ALL OF THE 10 ITEMS FOR WHICH SAMPLES WERE REQUIRED, SAMPLES WERE SUBMITTED ONLY ON ITEMS 10, 11 AND 12. NO STATEMENT IS CONTAINED IN THE BID TO THE EFFECT THAT THE PRODUCTS OFFERED ARE THE SAME AS PRODUCTS PREVIOUSLY FURNISHED TO THE FBI, AS REQUIRED BY THE FIRST PART OF PARAGRAPH 8 (D) QUOTED ABOVE, WHEN SAMPLES ARE NOT SUBMITTED.

IT IS REPORTED THAT IT WAS UNDERSTOOD FROM CONVERSATIONS WITH THE MOTOROLA REPRESENTATIVE, APPARENTLY PRIOR TO THE BID OPENING, THAT MOTOROLA WOULD FURNISH THE SAME EQUIPMENT AS WAS FURNISHED ON PRIOR PROCUREMENTS. IT IS FURTHER REPORTED THAT BOTH MOTOROLA AND GENERAL ELECTRIC HAVE PREVIOUSLY FURNISHED RADIO EQUIPMENT TO FULFILL THE FBI'S NEEDS OVER THE YEARS; THAT GENERAL ELECTRIC HAS PREVIOUSLY FURNISHED EQUIPMENT OF THE TYPES ON WHICH IT BID ON UNDER THE CURRENT INVITATION; AND THAT THE FBI HAS MOTOROLA EQUIPMENT IN USE OR HAS PREVIOUSLY TESTED MOTOROLA EQUIPMENT COVERED BY ALL OF THE ITEMS ON WHICH MOTOROLA BID, EXCEPT FOR THE EQUIPMENT COVERED BY ITEMS 10, 11 AND 12 OF THE CURRENT INVITATION. ITEMS 10, 11 AND 12 ARE THE ITEMS FOR WHICH MOTOROLA HAS SUBMITTED SAMPLES.

AS STATED IN THE SAMPLE CLAUSE THE PURPOSE OF REQUIRING SAMPLES IS "TO DETERMINE COMPLIANCE WITH THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS.' GENERALLY THE USE OF BID SAMPLES IS SANCTIONED IN THOSE CASES WHERE, BECAUSE OF THE NATURE OF THE PRODUCT, THE SPECIFICATIONS CANNOT BE STATED WITH SUFFICIENT CERTAINTY TO WARRANT THE ACCEPTANCE OF THE BID WITHOUT THE PRIOR SUBMISSION OF A SAMPLE, OR IN OTHER CASES WHERE, DUE TO THE PARTICULAR NEEDS OF THE GOVERNMENT, IT WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT TO WAIVE THE REQUIREMENT TO SUBMIT A BID SAMPLE. 17 COMP. GEN. 940, 941. STATED OTHERWISE, THE PURPOSE OF THE BID SAMPLE IS TO ENABLE THE GOVERNMENT TO DETERMINE WITH EXACTNESS THE PRODUCT THE BIDDER PROPOSES TO SUPPLY AND THUS ELIMINATE ANY UNCERTAINTY THAT THE PRODUCT OFFERED WILL MEET THE GOVERNMENT'S SPECIFIC NEED.

IN THE INSTANT CASE THERE ARE RATHER DETAILED SPECIFICATIONS FOR THE VARIOUS ITEMS AND THE VARIOUS PROVISIONS OF THE GENERAL CONDITIONS OF THE INVITATION, QUOTED ABOVE, LIMITED THE TYPE OF EQUIPMENT THAT WILL MEET THE NEEDS OF THE GOVERNMENT. AS STATED IN PARAGRAPH 11 "THE EQUIPMENT SUPPLIED MUST PROVIDE A HIGH DEGREE OF INTELLIGIBILITY AND BE SATISFACTORY WHEN USED WITH SIMILAR MOTOROLA AND GENERAL ELECTRIC EQUIPMENT NOW IN USE BY THE FBI.' ON THE THREE ITEMS ON WHICH THE GOVERNMENT DID NOT POSSESS INFORMATION MOTOROLA SUBMITTED BID SAMPLES. THUS, EVEN THOUGH MOTOROLA'S BID FAILED TO CONTAIN A STATEMENT AS PROVIDED IN PARAGRAPH 8 (D) (1) TO THE EFFECT THAT THE PRODUCTS IT WAS OFFERING TO FURNISH UNDER THE VARIOUS ITEMS, EXCEPT ITEMS 10, 11 AND 12, WERE THE SAME AS PRODUCTS MOTOROLA HAD PREVIOUSLY FURNISHED TO THE FBI, THERE IS NO UNCERTAINTY AS TO EXACTLY WHAT MOTOROLA PROPOSES TO AND IS REQUIRED TO FURNISH. FURTHERMORE, IT HAS BEEN DETERMINED IN ACCORDANCE WITH PARAGRAPH 8 (D) (2) THAT SUCH PRODUCTS, EXCEPT ITEMS 10, 11 AND 12, WERE PREVIOUSLY PROCURED OR TESTED BY THE FBI AND WERE FOUND TO COMPLY WITH SPECIFICATION REQUIREMENTS.

FOR THE FOREGOING REASONS, PARTICULARLY IN VIEW OF THE SPECIFIC PROVISIONS OF THIS INVITATION, THE FAILURE OF MOTOROLA'S BID TO CONTAIN A STATEMENT THAT IT IS OFFERING PRODUCTS PREVIOUSLY FURNISHED TO OR TESTED BY THE FBI MAY BE WAIVED AS A MINOR INFORMALITY, AND THE BID SHOULD BE CONSIDERED RESPONSIVE IN THIS RESPECT TO THE REQUIREMENTS OF THE INVITATION.