B-154541, SEP. 22, 1964

B-154541: Sep 22, 1964

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 23. PROTESTING THE REJECTION OF YOUR BID WHICH WAS SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 49-604-64-48. ONE OTHER BID WAS RECEIVED IN THE AMOUNT OF $80. IT WAS DETERMINED THAT THE PRODUCT OFFERED BY YOU. THE PROCURING ACTIVITY WAS AUTHORIZED ON AUGUST 6. THAT YOUR PROTEST IS BASED PRIMARILY ON THE CONTENTION THAT EVEN THOUGH THE SUBJECT SPECIFICATIONS CALL FOR A PRODUCT MANUFACTURED BY LINDSAY STRUCTURE. " IT IS CLEAR THAT NO EQUIPMENT OTHER THAN THAT SPECIFIED IS ACCEPTABLE TO THE DEPARTMENT OF THE AIR FORCE. THE AIR FORCE REPORTS THAT THE ENCLOSURE OFFERED BY YOU WAS A PRODUCT MANUFACTURED BY THE SHIELDING DIVISION OF SHIELDTRON.

B-154541, SEP. 22, 1964

TO WORSHAM AND CREWS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 23, 1964, WITH ENCLOSURE, PROTESTING THE REJECTION OF YOUR BID WHICH WAS SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 49-604-64-48, ISSUED ON MAY 14, 1964, BY THE BASE PROCUREMENT OFFICE, BOLLING AIR FORCE BASE, DISTRICT OF COLUMBIA.

YOU SUBMITTED A BID DATED JUNE 1, 1964, IN THE AMOUNT OF $58,440 OFFERING TO FURNISH AND INSTALL, IN ACCORDANCE WITH THE APPLICABLE GENERAL PROVISIONS, SPECIFICATIONS, ETC., A RADIO FREQUENCY INTERFERENCE (RFI) SHIELDED ENCLOSURE AT 1221 SOUTH FERN STREET, ALEXANDRIA, VIRGINIA. ONE OTHER BID WAS RECEIVED IN THE AMOUNT OF $80,056 FROM THE ACE ENGINEERING AND MACHINE COMPANY, INC. IT WAS DETERMINED THAT THE PRODUCT OFFERED BY YOU--- ONE MANUFACTURED BY THE SHIELDING DIVISION OF SHIELDTRON, INC., MOORESTOWN, NEW JERSEY--- DID NOT MEET THE APPROVED SPECIFICATIONS AND DRAWINGS FOR RFI ENCLOSURES ISSUED BY THE NATIONAL SECURITY AGENCY AND ADOPTED BY THE COMMUNICATIONS SECURITY BOARD. IN VIEW OF THIS, AND OF THE URGENT REQUIREMENT FOR THE ENCLOSURE, THE PROCURING ACTIVITY WAS AUTHORIZED ON AUGUST 6, 1964, TO PROCEED WITH THE AWARD OF A CONTRACT TO THE ACE ENGINEERING AND MACHINE COMPANY, INC., ON THE BASIS OF THE BID SUBMITTED BY THAT CORPORATION.

IT APPEARS FROM YOUR LETTER DATED JUNE 23, 1964, AND THE ENCLOSURE, THAT YOUR PROTEST IS BASED PRIMARILY ON THE CONTENTION THAT EVEN THOUGH THE SUBJECT SPECIFICATIONS CALL FOR A PRODUCT MANUFACTURED BY LINDSAY STRUCTURE, INC., SKOKIE, ILLINOIS, "OR EQUAL," IT IS CLEAR THAT NO EQUIPMENT OTHER THAN THAT SPECIFIED IS ACCEPTABLE TO THE DEPARTMENT OF THE AIR FORCE.

INVITATION NO. 49-604-64-48 REQUIRED, AMONG OTHERS, AN ALL STEEL SHIELDED ENCLOSURE, THE FRAMING OF WHICH SHALL BE EQUAL TO THE PRODUCT MANUFACTURED BY LINDSAY STRUCTURES, INC. IN THIS REGARD, THE AIR FORCE REPORTS THAT THE ENCLOSURE OFFERED BY YOU WAS A PRODUCT MANUFACTURED BY THE SHIELDING DIVISION OF SHIELDTRON, INC., AND THAT IT IS A PLYWOOD STRUCTURE WITH ZINC -CLAD STEEL SHEETS BONDED TO BOTH SIDES OF THE PLYWOOD. THE AIR FORCE FURTHER REPORTS THAT THIS PARTICULAR ENCLOSURE IS IN ACCORDANCE WITH NATIONAL SECURITY AGENCY PURCHASE DESCRIPTION 64-2, WHICH IS INTENDED ONLY FOR USE AS LABORATORY ENCLOSURES, THAT SUCH ENCLOSURES ARE USED TO REDUCE RADIO FREQUENCY INTERFERENCE ONLY, THAT THEY ARE NOT INTENDED TO, AND DO NOT, PROVIDE SECURITY AGAINST COMPROMISING RADIATION, AND THAT THE TECHNICAL REQUIREMENTS FOR THE TWO TYPES OF ENCLOSURES ARE NOT THE SAME. THEREFORE, SINCE SUCH DETERMINATIONS BY THE AIR FORCE WIRE BASED SOLELY ON OPINIONS SUBMITTED BY THE GOVERNMENT TECHNICAL AUTHORITIES, IT WAS CONCLUDED THAT THE ENCLOSURE OFFERED BY YOU UNDER INVITATION NO. 49-604-64 -48 DID NOT MEET THE APPROVED SPECIFICATIONS AND DRAWINGS FOR THE RADIO FREQUENCY INTERFERENCE ENCLOSURE REQUIRED. MOREOVER, IT IS NOTED FROM THE AIR FORCE REPORT THAT A REPRESENTATIVE OF YOUR SUPPLIER, THE SHIELDING DIVISION OF SHIELDTRON, INC., ADVISED AT THE PREBID CONFERENCE HELD ON MAY 25, 1964, THAT HIS COMPANY WAS NOT GOING TO SUBMIT A BID BECAUSE OF THE PROBABLE EVENTUAL GOVERNMENT'S REJECTION OF THE COMPANY'S PRODUCT ON THE BASIS THAT IT WAS NOT EQUAL TO THE LINDSAY PRODUCT REFERRED TO IN THE INVITATION. THUS, SUCH INFORMATION IN AND OF ITSELF, WHICH LATER WAS CONFIRMED IN WRITING, MIGHT VERY WELL HAVE BEEN AN INDICATION THAT THE SHIELDING DIVISION HAD AT LEAST SOME DOUBT AS TO WHETHER ITS PRODUCTS WOULD MEET THE "OR EQUAL" REQUIREMENT SET FORTH IN THE SPECIFICATIONS.

AS MAY BE SEEN FROM THE FOREGOING, THE DETERMINATION TO REJECT YOUR BID WAS MADE ONLY AFTER A COMPLETE EVALUATION OF THE TECHNICAL ASPECTS OF THE ENCLOSURE OFFERED BY YOU. IN THIS CONNECTION, OUR OFFICE CONSISTENTLY HAS HELD THAT THE DETERMINATION AS TO WHETHER A PARTICULAR PRODUCT OFFERED BY A BIDDER COMPLIES WITH SPECIFICATIONS 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 OBJECT TO THE CONCLUSION REACHED.

ACCORDINGLY, WE FIND NO LEGAL OBJECTION TO THE ACTION TAKEN BY THE DEPARTMENT OF THE AIR FORCE IN AWARDING A CONTRACT TO THE ACE ENGINEERING AND MACHINE COMPANY, INC., AND YOUR PROTEST IS THEREFORE DENIED.