B-156293, MAY 21, 1965

B-156293, MAY 21, 1965

TO ANS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 8, 1965, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST AWARD OF A CONTRACT TO PACKARD INSTRUMENT COMPANY, INC., BY THE BUREAU OF MINES UNDER INVITATION FOR BIDS NO. BPR-65-I-9.

THE INVITATION SOLICITED BIDS FOR FURNISHING THE BARTLESVILLE PETROLEUM RESEARCH CENTER, BARTLESVILLE, OKLAHOMA, ONE THREE CHANNEL LIQUID SCINTILLATION SPECTROMETER, IN CONFORMITY WITH DETAILED DESIGN AND PERFORMANCE SPECIFICATIONS. BIDS WERE RECEIVED FROM NUCLEAR CHICAGO, PACKARD INSTRUMENT COMPANY, INC., AND YOUR FIRM. NUCLEAR CHICAGO'S BID WAS APPARENTLY REJECTED AS BEING NONRESPONSIVE, AND AWARD WAS MADE TO PACKARD ON JANUARY 13, 1965, ON ITS OPTION 4, AS THE LOWEST RESPONSIVE BIDDER. PERFORMANCE UNDER THE CONTRACT HAS BEEN SUSPENDED PENDING DECISION OF OUR OFFICE ON YOUR PROTEST.

PACKARD SUBMITTED A BID ON ITS MODEL 3324 TRI-CARB AUTOMATIC LIQUID SCINTILLATION SPECTROMETER SYSTEM WITH MODEL 3950 AUTOMATIC EXTERNAL STANDARDIZATION, DESIGNATED "OPTION 1," AND THREE VARIATIONS THEREOF, DESIGNATED AS "OPTION "2," "3," " AND "4.' EACH OPTION WAS INDIVIDUALLY PRICED AND BOTH OPTIONS 3 AND 4 WERE LOWER THAN YOUR BID PRICE. PRECEDING THE LISTING OF THE 4 OPTIONS WAS THE FOLLOWING:

"ALL FOUR (4) PACKARD TRI-CARB LIQUID SCINTILLATION SPECTROMETER SYSTEMS LISTED BELOW MEET OR EXCEED ALL SPECIFICATIONS 1-12 ON PAGES 1, 3, 4 AND 5 OF INVITATION NO. BPR-65-I-9.'

OPTION 1 INCLUDED A STATEMENT OF ITS DESIGN AND PERFORMANCE SPECIFICATIONS AND THE RASE,"MEETS OR EXCEEDS ALL SPECIFICATIONS.' EACH SUCCEEDING OPTION PURPORTS TO BE THE SAME AS THE PRECEDING OPTION, WITH A STATED EXCEPTION OR EXCEPTIONS, AND TO MEET OR EXCEED ALL SPECIFICATIONS. ALSO, THE BID INCLUDES THE STATEMENT THAT ALL OF THE OPTIONS INCLUDE ADDITIONAL FEATURES NOT REQUIRED BY THE INVITATION.

YOU HAVE PROTESTED THE AWARD TO PACKARD BECAUSE (1) IT SUBMITTED ALTERNATE BIDS AND (2) ITS PRODUCT IS NOT RESPONSIVE TO FOUR OF THE SPECIFICATIONS. AS THE ANSWER TO YOUR SECOND CONTENTION IS ALSO DETERMINATIVE OF THE VALIDITY OF YOUR FIRST CONTENTION, WE WILL CONSIDER THEM IN REVERSE ORDER FROM THAT PRESENTED.

A RESPONSIVE BID UNDER THIS INVITATION IS ONE WHICH OFFERED A THREE CHANNEL LIQUID SCINTILLATION SPECTROMETER MEETING THE ADVERTISED SPECIFICATIONS. SINCE THERE WAS NO REQUIREMENT FOR SUBMITTING A PREPRODUCTION ITEM OR DESCRIPTIVE LITERATURE FOR THE PURPOSE OF EVALUATION AND DETERMINATION OF RESPONSIVENESS, AN UNEQUIVOCAL OFFER TO FURNISH A SPECTROMETER MEETING OR EXCEEDING THE ADVERTISED SPECIFICATIONS, WITHOUT EXCEPTION OR QUALIFICATION, WAS SUFFICIENT TO BE CONSIDERED RESPONSIVE. YOU HAVE PRESENTED NO EVIDENCE IN SUPPORT OF YOUR ALLEGATIONS THAT THE PACKARD EQUIPMENT IS NONRESPONSIVE TO THE SPECIFICATIONS ENUMERATED. THE OTHER HAND, PACKARD OFFERED ITS MODEL 3324, OR THE THREE MODIFICATIONS THEREOF, ALL OF WHICH WERE STATED TO MEET OR EXCEED ALL THE SPECIFICATIONS. ALTHOUGH NOT REQUIRED BY THE INVITATION, PACKARD'S BID INCLUDED A DETAILED DESCRIPTION OF THE OPTIONS IT WAS OFFERING, AS WELL AS OTHER DESCRIPTIVE LITERATURE. IT HAS BEEN DETERMINED BY COGNIZANT TECHNICAL PERSONNEL OF THE PROCURING ACTIVITY THAT NEITHER THE DETAILED DESCRIPTION IN THE BID NOR THE DESCRIPTIVE LITERATURE INDICATES ANY EXCEPTIONS TO, OR NONCONFORMITY WITH, ANY OF THE FOUR SPECIFICATIONS YOU MENTION OR, FOR THAT MATTER, WITH ANY OF THE ADVERTISED SPECIFICATIONS. ACCEPTANCE OF THE PACKARD BID THEREFORE OBLIGATES IT TO FURNISH A SPECTROMETER MEETING ALL OF THE SPECIFICATIONS, AND THE CONTRACT PROVIDES FOR INSPECTION AND TESTING OF THE EQUIPMENT BEFORE ACCEPTANCE. IN THESE CIRCUMSTANCES, WE WOULD NOT BE JUSTIFIED IN CONCLUDING THAT THE PACKARD EQUIPMENT WILL NOT CONFORM TO THE ADVERTISED SPECIFICATIONS.

WITH REGARD TO YOUR FIRST CONTENTION, THE INVITATION PROVIDED THAT "ALTERNATE BIDS WILL NOT BE CONSIDERED.' HOWEVER, WE DO NOT AGREE WITH YOUR CONTENTION THAT THE "OPTIONS" OFFERED BY PACKARD WERE "ALTERNATES.' THE PROHIBITION AGAINST CONSIDERATION OF "ALTERNATE BIDS," AS THAT PHRASE IS USED IN GOVERNMENT PROCUREMENT, SIMPLY MEANS THAT BIDS OFFERING AS AN ALTERNATE TO THE SPECIFIED ITEM SOMETHING OTHER THAN THAT WHICH IS CALLED FOR BY THE SPECIFICATIONS MAY NOT BE ACCEPTED. 33 COMP. GEN. 499. THIS DOES NOT PRECLUDE A BIDDER FROM SUBMITTING BIDS ON MORE THAN ONE ARTICLE UNDER THE SAME INVITATION REQUIREMENTS, BUT ONLY PROHIBITS CONSIDERATION FOR AWARD OF ANY OFFER OF AN ARTICLE WHICH DOES NOT MEET ALL REQUIREMENTS. SINCE WE HAVE CONCLUDED THAT ALL OF THE SO-CALLED "OPTIONS" WERE RESPONSIVE TO THE SPECIFICATIONS, THEY ARE NOT "ALTERNATES" IN THAT SENSE AND WERE PROPERLY CONSIDERED FOR AWARD. WHILE THE PROCUREMENT OFFICES OF THE GOVERNMENT GENERALLY ARE REQUIRED TO ACCEPT THE LOWEST PRICED ITEM WHICH WILL MEET ITS STATED NEEDS, THERE IS NO PROHIBITION AGAINST BIDDERS OFFERING ITEMS WHICH EXCEED THOSE REQUIREMENTS.

ACCORDINGLY, WE SEE NO LEGAL BASIS FOR DISTURBING THE CONTRACT AWARDED TO PACKARD, AND YOUR PROTEST IS THEREFORE DENIED.