B-155016, JAN. 4, 1965

B-155016: Jan 4, 1965

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INC.: REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 19 AND NOVEMBER 30. BIDS WERE RECEIVED FROM LOCKHEED AIRCRAFT SERVICE COMPANY IN THE AMOUNT OF $755. THE LOWEST BID AND YOUR BID WERE EVALUATED BY RESPONSIBLE AIR FORCE TECHNICAL PERSONNEL AND REJECTED AS NONRESPONSIVE. THE BID OF FAIRCHILD CAMERA AND INSTRUMENT CORPORATION WAS DETERMINED TO BE RESPONSIVE AND AWARD WAS MADE TO THAT COMPANY ON AUGUST 22. THE SAME DATE YOU WERE ADVISED OF THIS AWARD AND OF THE REJECTION OF YOUR BID. THE RECORD SHOWS THAT YOUR BID WAS DETERMINED TO BE NONRESPONSIVE IN THAT THE DESCRIPTIVE LITERATURE SHOWED THE DIMENSIONAL LOCATION OF THE REAR CONNECTOR OF THE RECORDER UNIT AS NOT IN ACCORDANCE WITH AERONAUTICAL RADIO.

B-155016, JAN. 4, 1965

TO MR. SAN GILMAN, PRESIDENT, UNITED DATA CONTROL, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 19 AND NOVEMBER 30, 1964, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER DEPARTMENT OF THE AIR FORCE INVITATION NO. 33-657-63-275, ISSUED BY THE AERONAUTICAL SYSTEMS DIVISION, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, ON APRIL 26, 1963.

THE INVITATION SOLICITED BIDS FOR THE FURNISHING OF CRASH RECORDER SETS FOR FISCAL YEARS 1963, 1964 AND 1965. THE INVITATION REQUIRED EACH BIDDER TO FURNISH DESCRIPTIVE LITERATURE FOR THE PURPOSE OF BID EVALUATION AND AWARD TO ESTABLISH THE DETAILS OF THE PRODUCT THE BIDDER PROPOSED TO FURNISH AS TO DESIGN, MATERIALS, COMPONENTS, PERFORMANCE CHARACTERISTICS, COMPATIBILITY, INTERCHANGEABILITY, CONSTRUCTION AND ASSEMBLY. THE INVITATION FURTHER PROVIDED THAT BIDS WOULD BE REJECTED IF THE DESCRIPTIVE LITERATURE FURNISHED FAILED TO SHOW THAT THE PRODUCT OFFERED CONFORMED TO THE SPECIFICATION REQUIREMENTS. BIDS WERE RECEIVED FROM LOCKHEED AIRCRAFT SERVICE COMPANY IN THE AMOUNT OF $755,060; UNITED DATA CONTROL, INC., IN THE AMOUNT OF $799,293 AND FAIRCHILD CAMERA AND INSTRUMENT CORPORATION IN THE AMOUNT OF $839,697. THE LOWEST BID AND YOUR BID WERE EVALUATED BY RESPONSIBLE AIR FORCE TECHNICAL PERSONNEL AND REJECTED AS NONRESPONSIVE. THE BID OF FAIRCHILD CAMERA AND INSTRUMENT CORPORATION WAS DETERMINED TO BE RESPONSIVE AND AWARD WAS MADE TO THAT COMPANY ON AUGUST 22, 1963. THE SAME DATE YOU WERE ADVISED OF THIS AWARD AND OF THE REJECTION OF YOUR BID.

THE RECORD SHOWS THAT YOUR BID WAS DETERMINED TO BE NONRESPONSIVE IN THAT THE DESCRIPTIVE LITERATURE SHOWED THE DIMENSIONAL LOCATION OF THE REAR CONNECTOR OF THE RECORDER UNIT AS NOT IN ACCORDANCE WITH AERONAUTICAL RADIO, INC. (ARINC) CHARACTERISTIC 542 AS REQUIRED BY EXHIBIT ASNLS 61- 3A. WITH REFERENCE TO UNITED DATA CONTROL DRAWING 100022 SUBMITTED AS PART OF THE DESCRIPTIVE LITERATURE, DISCREPANCIES WERE NOTED IN BOTH THE NOMINAL LOCATION OF THE CENTERLINE OF THE LOWER CONNECTOR WITH RESPECT TO THE BOTTOM OF THE RECORDER UNIT AND THE TOLERANCE ALLOWED ON THIS DIMENSION. THE MAXIMUM LENGTH OF THE RECORDER UNIT, INCLUDING THE TOLERANCE SHOWN ON UNITED DATA CONTROL DRAWING 100022 IS 19.598 INCHES WHEREAS THAT ALLOWED BY ARINC CHARACTERISTIC 542 AND EXHIBIT ASNLS 61-3A IS 19.5625 INCHES. FURTHER, YOUR DESCRIPTIVE LITERATURE DID NOT SPECIFICALLY INDICATE WHICH MODEL YOU WERE PROPOSING. SECTION II A OF THE PROPOSAL INDICATES THAT YOU WERE PROPOSING MODEL F-542, WHEREAS DRAWING 100022 IN THE PROPOSAL COVERS MODEL FA-542. IN ADDITION, THE RECORD SHOWS THAT THE TEST DATA SUBMITTED WITH YOUR DESCRIPTIVE LITERATURE WAS NOT COMPLETE AND, THEREFORE, DID NOT REVEAL THAT THE RECORDER PREVIOUSLY PRODUCED WILL MEET THE REQUIREMENTS OF EXHIBIT ASNLS 61-3A AS REQUIRED BY PARAGRAPH 1.M. OF SCHEDULE J CONTAINED IN THE INVITATION. ONLY VIBRATION, HUMIDITY AND FLIGHT TEST DATA WERE INCLUDED. THE EQUIPMENT RELIABILITY (MTBF - MEAN TIME BETWEEN FAILURES) AND METHOD OF CALCULATION WERE NOT INCLUDED IN YOUR DESCRIPTIVE LITERATURE AS REQUIRED BY PARAGRAPH 1.N. OF SCHEDULE J OF THE INVITATION. YOU DID INCLUDE UNSCHEDULED REMOVAL RATE DATA FROM RECORDERS CURRENTLY IN USE, BUT THIS IS NOT IDENTICAL TO MTBF. IT WAS THE CONSIDERED CONCLUSION OF THE EVALUATION PANEL THAT YOUR RECORDER UNIT AS DESCRIBED IN THE LITERATURE SUBMITTED BY YOU WAS TECHNICALLY UNACCEPTABLE BECAUSE IT WOULD NOT PROPERLY MATE WITH THE PROVISIONS INCORPORATED IN THE C-141 A AIRCRAFT. THE DEVIATIONS WERE CONSIDERED TO BE SIGNIFICANT TO THE C 141 A AIRCRAFT INASMUCH AS THEY WOULD REQUIRE REVISIONS TO THE EXISTING AIRCRAFT CONFIGURATION TO ADEQUATELY ACCOMODATE THE DIFFERENCES.

YOU STATE IN YOUR LETTER OF NOVEMBER 30, 1964, THAT WE SHOULD NOT RENDER A DECISION IN THIS MATTER UNTIL WE HAVE SPECIFICALLY CALLED FOR THE DATA DELIVERED BY FAIRCHILD CAMERA UNDER CONTRACT AF33/657/-9625, ACCEPTED FOR THIS PROCUREMENT, AND COMPARE THEIR DATA SUBMITTED UNDER THAT CONTRACT WITH YOURS SUBMITTED UNDER THE PRESENT INVITATION TO DETERMINE IF THE SAME OR SIMILAR DISCREPANCIES MAY HAVE BEEN EXTANT IN THEIR PACKAGE ALSO.

WE HAVE CONSISTENTLY HELD THAT A DESCRIPTIVE LITERATURE REQUIREMENT, SUCH AS HERE INVOLVED, IS A SUBSTANTIVE CONDITION OF THE INVITATION WHICH MAY NOT BE WAIVED FOR ONE BIDDER AFTER BID OPENING SINCE IT WOULD OBVIOUSLY PREJUDICE THE RIGHTS OF OTHER CONFORMING BIDDERS. 37 COMP. GEN. 763; 36 ID. 415. SEE ALSO ARMED SERVICES PROCUREMENT REGULATION 2-202.5/D).

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 YOUR PROTEST, WHICH IS, IN EFFECT, A BROAD ALLEGATION THAT YOUR BID WAS RESPONSIVE OR AT LEAST AS RESPONSIVE AS THE SUCCESSFUL BIDDER-S.

IT IS NOT OUR FUNCTION TO TECHNICALLY EVALUATE BIDS AND PROPOSALS, OR TO MAKE AN INDEPENDENT DETERMINATION IN THIS CASE AS TO WHETHER FAIRCHILD CAMERA'S BID WAS IN COMPLIANCE WITH THE SPECIFICATIONS. SEE, GENERALLY, 17 COMP. GEN. 554; 19 ID. 587; 40 ID. 35. INDEED, WE ARE NOT EQUIPPED TO DO SO. IT DOES APPEAR HOWEVER THAT YOUR BID WAS EVALUATED IN ACCORDANCE WITH THE ESTABLISHED EVALUATION PROCEDURE, AND THAT ANOTHER FIRM WAS DULY SELECTED FOR AWARD UNDER THIS PROCEDURE.

THEREFORE, AS IT IS NOT APPARENT FROM THE RECORD THAT THE ADMINISTRATIVE ACTION IN MAKING THE AWARD 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 THE LOWER PRICE CAN BE OBTAINED IN THAT WAY.