B-155276, MAR. 18, 1965

B-155276: Mar 18, 1965

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INC.: REFERENCE IS MADE TO A TELEGRAM OF SEPTEMBER 28. THE CONTEMPLATED PROCUREMENT OF ELECTRONIC VOLTMETERS WAS THE SUBJECT OF AN INVITATION FOR BIDS IN 1963 AND IN REGARD TO WHICH A PROTEST ON YOUR BEHALF WAS FILED BY YOUR ATTORNEY ON DECEMBER 21. BECAUSE THE VOLTMETERS YOU PROPOSED TO FURNISH WERE NOT CONSIDERED THE EQUAL OF THE BRAND NAME VOLTMETERS (BOONTON MODEL 91CA) REFERRED TO IN THE INVITATION. THAT PROTEST WAS WITHDRAWN WHEN THE INVITATION FOR BIDS WAS CANCELED BECAUSE THE OTHER TWO BIDS RECEIVED WERE CONSIDERED NONRESPONSIVE TO THE TERMS AND CONDITIONS OF THE INVITATION. THIS SECOND INVITATION DIFFERED FROM THE FIRST INVITATION IN THAT THE TECHNICAL REQUIREMENTS OF SPECIFICATION SC-A 46827A WERE ADDED.

B-155276, MAR. 18, 1965

TO PORTER ELECTRONIC LABORATORIES, INC.:

REFERENCE IS MADE TO A TELEGRAM OF SEPTEMBER 28, 1964, AND SUBSEQUENT LETTERS, FROM YOUR ATTORNEY, PROTESTING THE AWARD TO ANY OTHER BIDDER OR THE CANCELLATION OF INVITATION FOR BIDS NO. AMC (E/-36 039-64-991-3 ISSUED ON APRIL 1, 1964, BY THE UNITED STATES ARMY ELECTRONICS MATERIEL AGENCY, PHILADELPHIA, PENNSYLVANIA.

PRIOR TO THE ISSUANCE OF THE CITED INVITATION BY THE UNITED STATES ARMY ELECTRONICS MATERIEL AGENCY, PHILADELPHIA, PENNSYLVANIA, THE CONTEMPLATED PROCUREMENT OF ELECTRONIC VOLTMETERS WAS THE SUBJECT OF AN INVITATION FOR BIDS IN 1963 AND IN REGARD TO WHICH A PROTEST ON YOUR BEHALF WAS FILED BY YOUR ATTORNEY ON DECEMBER 21, 1963, WITH OUR OFFICE, BECAUSE THE VOLTMETERS YOU PROPOSED TO FURNISH WERE NOT CONSIDERED THE EQUAL OF THE BRAND NAME VOLTMETERS (BOONTON MODEL 91CA) REFERRED TO IN THE INVITATION. THAT PROTEST WAS WITHDRAWN WHEN THE INVITATION FOR BIDS WAS CANCELED BECAUSE THE OTHER TWO BIDS RECEIVED WERE CONSIDERED NONRESPONSIVE TO THE TERMS AND CONDITIONS OF THE INVITATION.

THE INSTANT INVITATION FOR BIDS ISSUED ON APRIL 1, 1964, SOLICITED BIDS-- - TO BE OPENED ON MAY 1, 1964, LATER EXTENDED TO MAY 8, 1964--- FOR FURNISHING 66 ELECTRONIC VOLTMETERS,"AN/URM-145) ); BOONTON ELECTRONICS CORP MODEL 91CA OR EQUAL TO MEET THE REQUIREMENTS OF SIG CORPS SPEC SC-A- 46827A," TOGETHER WITH CERTAIN ACCESSORIES, SPARE PARTS AND MANUALS. THIS SECOND INVITATION DIFFERED FROM THE FIRST INVITATION IN THAT THE TECHNICAL REQUIREMENTS OF SPECIFICATION SC-A 46827A WERE ADDED. THREE BIDS WERE RECEIVED. YOUR BID OF $37,154.99 WAS THE LOWEST RECEIVED. THE BID OF BOONTON ELECTRONICS CORPORATION WAS IN THE AMOUNT OF $40,139.54 AND THE BID OF HEWLETT-PACKARD COMPANY WAS IN THE AMOUNT OF $47,417.72.

IT IS ADMINISTRATIVELY REPORTED THAT AT THE TIME THE SECOND INVITATION WAS ISSUED IT WAS BELIEVED THAT THE SPECIFICATIONS CONTAINED ALL SALIENT CHARACTERISTICS OF THE EQUIPMENT AS REQUIRED BY PARAGRAPH 1-1206.2 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). HOWEVER, AFTER BIDS WERE OPENED, IT WAS DETERMINED THAT THE SPECIFICATION FAILED TO LIST TWO SALIENT CHARACTERISTICS REQUIRED BY THE GOVERNMENT. FIRST, IT FAILED TO NOTE THAT A CONVERSION CHART WOULD NOT BE ACCEPTABLE. SECOND, IT DID NOT ADEQUATELY DESCRIBE THE TECHNICAL REQUIREMENTS OF THE VOLTAGE DIVIDER. ALTHOUGH BOTH BOONTON AND YOU OFFERED ITEMS THAT DID MEET THE SPECIFICATIONS AS WRITTEN, IT WAS DECIDED TO CANCEL THE INVITATION BECAUSE THE SPECIFICATIONS FAILED TO LIST THESE TWO SALIENT CHARACTERISTICS. IS STATED THAT THE SPECIFICATIONS AS NOW BEING REWRITTEN WILL BE UTILIZED IN FUTURE SOLICITATIONS SO THAT THE PROCUREMENT DATA CAN BE BASED ON PERFORMANCE SPECIFICATIONS AND THIS WILL ELIMINATE THE NECESSITY OF USING "BRAND NAME OR EQUAL" DESCRIPTIONS IN THE FUTURE.

IN THE LETTER OF FEBRUARY 9, 1965, FROM YOUR ATTORNEY, IT IS CONTENDED THAT THE ADMINISTRATIVE OFFICE IS COMPLETELY IN ERROR WITH REGARD TO THE FIRST OF THE TWO REASONS FOR READVERTISING IN THAT NO CONVERSION CHART IS REQUIRED FOR USE WITH YOUR UNIT OFFERED SINCE IT IS A DIRECT READING INSTRUMENT. EVEN ACCEPTING THE CORRECTNESS OF THIS CONTENTION, THERE STILL REMAINS THE QUESTION OF WHETHER A VOLTAGE DIVIDER IS NECESSARY AND WHETHER THE SPECIFICATIONS SHOULD BE MORE DETAILED WITH RESPECT THERETO. THE CONTRACTING OFFICER HAS STATED THAT "THE LACK OF TECHNICAL REQUIREMENTS FOR THE VOLTAGE DIVIDER PERMITS THE CHOICE OF A DESIGN WHICH WOULD INTRODUCE UNSATISFACTORY LOADING AT THE HIGHER FREQUENCIES.' IT IS RECOGNIZED BY YOUR ATTORNEY THAT OUR OFFICE DOES NOT ORDINARILY QUESTION THE TECHNICAL AND ENGINEERING DECISIONS OF THE PROCURING AGENCY AND WHILE IT IS CONTENDED ON YOUR BEHALF THAT THE DECISION TO READVERTISE IS MERELY A SUBTERFUGE TO AVOID ENTERING INTO A CONTRACT WITH YOU, THIS MATTER DOES INVOLVE THE DECISION OF TECHNICAL PERSONNEL AS TO THE NEED FOR DEFINITE SPECIFICATIONS IN REGARD TO THE VOLTAGE DIVIDER. SINCE WE DO NOT HAVE TECHNICAL PERSONNEL TO CONSIDER THE CORRECTNESS OF THE CONCLUSION OF THE ADMINISTRATIVE OFFICE IN THIS MATTER, WE MUST RELY ON ITS CONCLUSION AS TO THE TECHNICAL ASPECTS OF THE EQUIPMENT TO BE PROCURED.

UNDER THE PROVISIONS OF ASPR 2-404.1 (B) INVITATIONS FOR BIDS MAY BE CANCELED AFTER OPENING OF BIDS IN CERTAIN CASES INCLUDING THOSE WHERE THE SPECIFICATIONS CITED IN THE INVITATION ARE INADEQUATE OR AMBIGUOUS AND THE CONTRACTING OFFICER HAS MADE A DETERMINATION IN WRITING TO THIS EFFECT. THIS PROCEDURE WAS FOLLOWED IN THIS CASE.