B-156340, JUN. 28, 1965

B-156340, JUN. 28, 1965

TO APPLIED RESEARCH LABORATORIES, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 15, 1965, PROTESTING AGAINST THE ACTION OF THE DEPARTMENT OF THE INTERIOR, GEOLOGICAL SURVEY, IN CONSIDERING YOUR BID TO BE NONRESPONSIVE UNDER INVITATION FOR BIDS NO. 3619, ISSUED ON FEBRUARY 11, 1965. WE ALSO HAVE YOUR LETTERS OF MARCH 25, APRIL 2, 6, AND 30, 1965, IN THIS MATTER.

THE SUBJECT INVITATION FOR BIDS INVITED BIDS FROM SEVEN FIRMS, INCLUDING APPLIED RESEARCH LABORATORIES, INC. (ARL), FOR FURNISHING, DELIVERING, SETTING IN PLACE, AND GIVING A DEMONSTRATION OF SATISFACTORY OPERATION AT THE UNITED STATES GEOLOGICAL SURVEY, BRANCH OF ASTROGEOLOGY, MENLO PARK, CALIFORNIA, ON AN ELECTRON MICROPROBE X RAY ANALYZER INSTRUMENT IN ACCORDANCE WITH THE ATTACHED SPECIFICATIONS. BIDS WERE OPENED ON MARCH 4, 1965, AND IT IS REPORTED THAT THREE BIDS, INCLUDING THE BID FROM ARL, WERE RECEIVED.

YOUR APPARENT LOW BID HAS BEEN REJECTED AS NONRESPONSIVE BY THE PROCURING AGENCY FOR FAILURE OF THE DESCRIPTIVE LITERATURE SUBMITTED TO ESTABLISH EXACTLY WHAT WILL BE FURNISHED. YOU CONTEND THAT SINCE YOUR BID RESPONSE STATED THAT "WE TAKE ABSOLUTELY NO EXCEPTION TO THE SPECIFICATION," THAT THIS WOULD FULLY SATISFY THE INVITATION REQUIREMENTS. MOREOVER, YOU CONTEND THAT IF YOU WERE NOT RESPONSIVE TO THE DESCRIPTIVE LITERATURE REQUIREMENTS OF THE INVITATION, NEITHER WAS MATERIALS ANALYSIS COMPANY (MAC), THE NEXT LOW BIDDER.

THE RECORD SHOWS THAT THE EQUIPMENT CALLED FOR IN THE SUBJECT INVITATION WAS IDENTIFIED ON PAGE 19 OF THE INVITATION UNDER ITEM 1 BY A DESCRIPTIVE PARAGRAPH, AND ON PAGES 23 THROUGH 31 UNDER SPECIFICATION FOR ELECTRON MICROPROBE X-RAY ANALYZER INSTRUMENT IN WHICH COMPLETE PERFORMANCE AND OPERATING SPECIFICATIONS WERE OUTLINED OF THE INSTRUMENT TO BE FURNISHED. NO MAKE OR MODEL NUMBER OF ANY INSTRUMENT WAS USED IN THE INVITATION FOR BIDS. ON PAGE 19 OF THE INVITATION, THE DESCRIPTIVE LITERATURE PARAGRAPH AS OUTLINED IN THE FEDERAL PROCUREMENT REGULATIONS (FPR), PARAGRAPH 1- 2.202-5 (1) WAS USED AS FOLLOWS:

"DESCRIPTIVE LITERATURE: IT IS REQUIRED THAT DESCRIPTIVE LITERATURE OF THE EQUIPMENT THAT THE BIDDER IS AGREEING TO SUPPLY BE FURNISHED WITH THE BID. THE TERM "DESCRIPTIVE LITERATURE" MEANS INFORMATION, SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS, AND BROCHURES, WHICH SHOW THE CHARACTERISTICS OR CONSTRUCTION OF THE PRODUCT.

"DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING OF BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSE OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCT THE BIDDER PROPOSES TO FURNISH.

"FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT IF THE MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE, IT MAY BE CONSIDERED UNDER THE PROVISIONS FOR CONSIDERATION OF LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.'

THE SPECIFICATIONS OF THE INVITATION (PAGES 23 THROUGH 31) DESCRIBED IN DETAIL THE COMPONENT UNIT ASSEMBLIES AND THEIR PERFORMANCE THAT WERE TO MAKE UP A COMPLETE INSTRUMENT, AND AT THE SAME TIME A LIST OF ACCESSORIES AND THEIR PERFORMANCE WERE OUTLINED IN THE SPECIFICATIONS. HOWEVER, IT IS ADMINISTRATIVELY REPORTED THAT YOUR FIRM SUPPLIED LITERATURE GIVING GENERAL INFORMATION CONCERNING THE WHOLE FIELD OF ELECTRON MICROPROBE X- RAY ANALYZER INSTRUMENTATION, AND WHILE THERE WAS A STATEMENT IN THE LETTER COVERING YOUR BID THAT "WE TAKE ABSOLUTELY NO EXCEPTION TO THE SPECIFICATIONS," AT NO POINT IN YOUR BID DID YOU STATE EXACTLY WHAT YOU WERE AGREEING TO FURNISH TO MEET THE SPECIFIC REQUIREMENTS OF THE INVITATION. THE GEOLOGICAL SURVEY REPORTS THAT IT WAS UNABLE TO DETERMINE FROM YOUR BID EXACTLY WHAT WOULD BE FURNISHED BY YOU, AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE. ON SUCH BASIS, YOUR FAILURE TO FURNISH THE REQUIRED DESCRIPTIVE LITERATURE RESULTED IN YOUR BID BEING REJECTED BY THE GEOLOGICAL SURVEY.

SINCE THE DESCRIPTIVE LITERATURE REQUIREMENTS WERE NOT MET BY YOUR COMPANY, WE AGREE WITH THE ACTION OF THE GEOLOGICAL SURVEY IN REJECTING YOUR BID AS NONRESPONSIVE. 36 COMP. GEN. 376; ID. 415. MOREOVER, A STATEMENT THAT THE EQUIPMENT OFFERED MEETS THE REQUIREMENTS OF THE SPECIFICATIONS, OR A BIDDER'S BLANKET OFFER TO COMPLY WITH THE SPECIFICATIONS, WILL NOT SUFFICE TO OVERCOME OMISSIONS IN THE BID DATA. 40 COMP. GEN. 132, 135.

YOUR CONTENTIONS AS OUTLINED IN YOUR LETTER OF APRIL 30, 1965, THAT THE BID OF MATERIALS ANALYSIS COMPANY (MAC) WAS NONRESPONSIVE TO CERTAIN OF THE SPECIFICATIONS OUTLINED IN THE SUBJECT INVITATION, AND THEREFORE SHOULD HAVE BEEN REJECTED, WERE FURNISHED TO THE PROCUREMENT AGENCY FOR THEIR COMMENT. THERE IS QUOTED BELOW THE REPLY FROM THE DEPARTMENT OF THE INTERIOR TO THE CONTENTIONS RAISED IN YOUR LETTER OF APRIL 30, 1965.

"THE GEOLOGICAL SURVEY SCIENTIFIC GROUP CONCERNED HAS MADE A THOROUGH RESTUDY OF THE BID PACKAGES SUBMITTED BY BOTH APPLIED RESEARCH LABORATORIES, INC. AND MATERIAL ANALYSIS COMPANY AND THEY REPORT AS FOLLOWS:

"SPECIFICATIONS 1.4.1, 1.4.2, 1.4.3, 1.4.12, 2.4, 2.5, AND 2.6. THE MATERIALS ANALYSIS COMPANY'S BID LISTS THE EQUIPMENT TO BE FURNISHED TO MEET THE ABOVE LISTED SPECIFICATIONS. THE ITEMS LISTED ARE STANDARD ITEMS AND WE DO NOT QUESTION THE PERFORMANCE OF THESE ITEMS. REGARDING MODIFICATION OF THE 5214-L HEWLETT-PACKARD SCALERS, THE GEOLOGICAL SURVEY HAS HAD PREVIOUS DISCUSSIONS CONCERNING THE MODIFICATION OF A MATERIAL ANALYSIS COMPANY INSTRUMENT ALREADY INSTALLED IN OUR WASHINGTON LABORATORY WITH THE AIM OF USING SUCH EQUIPMENT WITH THIS PROBE. HENCE THE GEOLOGICAL SURVEY WAS ALREADY AWARE OF THE NATURE OF THIS MODIFICATION.

"SPECIFICATION 1.3.12. THE MATERIAL ANALYSIS COMPANY'S PROBE MEETS THIS SPECIFICATION WITH ONLY ONE PORT WHICH HAS BEEN DEMONSTRATED IN OUR OWN INSTRUMENT. WE HAVE KNOWN, HOWEVER, SINCE NOVEMBER 1964 THAT MATERIAL ANALYSIS COMPANY CAN SUPPLY TWO (2) ADJUSTING PORTS WHEN REQUESTED.

"SPECIFICATION 1.4.7. THE MATERIAL ANALYSIS COMPANY'S BROCHURE STATES MAGNIFICATION IS 200X TO 4000X, OR AREA SCANNED AS 400U ON EDGE TO 20U ON EDGE. WE HAVE PRACTICAL KNOWLEDGE THAT THE MATERIAL ANALYSIS COMPANY'S PROBE CAN SCAN AREAS SMALLER THAN 20U (DOWN TO THE STATIC SIZE OF THE SPOT, 1U). THE 20U TO 400U ON EDGE SCANS ARE THE MOST USEFUL RANGE, WHEREAS AREAS FOR SCANNING BELOW 20U ARE OF LITTLE PRACTICAL VALUE DUE TO LOSS IN RESOLUTION. THE SCANNING AREAS CAN, IN EFFECT, BE CONTINUOUSLY CHANGED IN SIZE TO INFINITY.

"THE BID OF MATERIAL ANALYSIS COMPANY WAS SUBMITTED WITH DESCRIPTIVE LITERATURE AND AN ACCEPTABLE LIST OF ACCESSORY EQUIPMENT. THE BID OF APPLIED RESEARCH LABORATORIES HAD ONLY GENERAL LITERATURE, BUT NO LIST OF ACCESSORY EQUIPMENT TO BE SUPPLIED. THIS IS CONSIDERED TO BE A FATAL OMISSION TO THE BID FOR THE REASON THAT WITHOUT SUCH LIST IT COULD NOT BE DETERMINED THAT THE APPLIED RESEARCH LABORATORIES' EQUIPMENT WOULD PERFORM AS REQUIRED. EACH BID WAS CONSIDERED ON THE BASIS OF THE INFORMATION SUPPLIED BY THE BIDDER. HAD APPLIED RESEARCH LABORATORIES SUPPLIED A LIST OF ACCESSORY EQUIPMENT AS REQUIRED BY THE INVITATION FOR BIDS THE BID WOULD HAVE BEEN RESPONSIVE. THE GEOLOGICAL SURVEY CONSIDERED THAT THE MATERIAL ANALYSIS COMPANY'S INSTRUMENT SATISFIED THE SPECIFICATION OF THE INVITATION FOR BIDS BASED ON THE MATERIAL SUBMITTED WITH ITS BID.'

SINCE IT IS NOT OUR FUNCTION TO EVALUATE THE TECHNICAL ENGINEERING ASPECTS OF BIDS AND PROPOSALS, THE QUESTION IN THIS CASE AS TO WHETHER MAC'S BID WAS IN COMPLIANCE WITH THE SPECIFICATIONS IS FOR DETERMINATION SOLELY BY THE DEPARTMENT. SEE, GENERALLY, 17 COMP. GEN. 554; 19 ID. 587; 40 ID. 35. IT DOES APPEAR HOWEVER THAT YOUR BID WAS EVALUATED IN ACCORDANCE WITH THE ESTABLISHED PROCEDURES, AND THAT ANOTHER FIRM WAS DULY SELECTED FOR AWARD THEREUNDER. SEE 35 COMP. GEN. 174.

IN VIEW OF THE FOREGOING, AND SINCE THERE IS NO EVIDENCE THAT THE ADMINISTRATIVE ACTION IN THIS CASE WAS ARBITRARY OR CAPRICIOUS, WE SEE NO BASIS UPON WHICH WE WOULD OBJECT TO THE AWARD TO A HIGHER BIDDER.