B-156679, AUG. 26, 1965

B-156679: Aug 26, 1965

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TO SIMPSON ELECTRIC COMPANY: REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 30. THE OPENING DATE FOR BIDS WAS SET AT MARCH 11. THE SPECIFICATIONS WERE AMENDED BY DELETING THE LOGISTICS REQUIREMENTS. THEREBY PERMITTING BIDDERS TO SUBMIT ITEMS THAT ARE NOT COMMERCIAL OFF-THE -SHELF ITEMS. THIS REVISION WAS STATED TO HAVE BEEN NECESSITATED BY A CHANGE IN COMMERCIAL QUALIFIED PRODUCTS LIST POLICY IN THE DEPARTMENT OF THE AIR FORCE. IT IS REPORTED THAT THE AIR FORCE REQUIREMENT FOR MULTIMETERS PRIOR TO FEBRUARY 1964. WAS BEING SATISFIED BY A HIGH-PRICED MILITARIZED ITEM KNOWN AS PSM6 IN ACCORDANCE WITH MIL-M-45520. THIS ITEM WAS BEING PROCURED AT A COST OF APPROXIMATELY $150 EACH AND ALL SOLICITATIONS FOR THE ITEM WERE BEING SET ASIDE FOR SMALL BUSINESS IN ACCORDANCE WITH APPLICABLE REQUIREMENTS.

B-156679, AUG. 26, 1965

TO SIMPSON ELECTRIC COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 30, 1965, AND YOUR LETTER OF MAY 4, 1965, PROTESTING AGAINST AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER INVITATION FOR BIDS NO. 36-600-65-424, ISSUED BY MIDDLETOWN AIR MATERIEL AREA, OLMSTED AIR FORCE BASE, PENNSYLVANIA.

THE SUBJECT INVITATION ISSUED ON DECEMBER 11, 1964, CALLED FOR A MINIMUM QUANTITY OF 4,216 UNITS AND A MAXIMUM QUANTITY OF 7,000 UNITS OF MULTIMETERS, NON-ELECTRONIC, IN ACCORDANCE WITH MIL-SPEC-MIL-M-38706 (USAF) DATED JUNE 25, 1964. THE OPENING DATE FOR BIDS WAS SET AT MARCH 11, 1965, SO AS TO PERMIT PROSPECTIVE BIDDERS AMPLE TIME FOR TESTING AND QUALIFYING THEIR PRODUCTS IN ORDER TO COMPLY WITH THE QUALIFIED PRODUCTS LIST REQUIREMENTS OF THE SPECIFICATIONS AND THE INVITATION. THEREAFTER, BY AMENDMENT NO. 1 TO THE INVITATION, ISSUED DECEMBER 15, 1964, THE SPECIFICATIONS WERE AMENDED BY DELETING THE LOGISTICS REQUIREMENTS, THEREBY PERMITTING BIDDERS TO SUBMIT ITEMS THAT ARE NOT COMMERCIAL OFF-THE -SHELF ITEMS. THIS REVISION WAS STATED TO HAVE BEEN NECESSITATED BY A CHANGE IN COMMERCIAL QUALIFIED PRODUCTS LIST POLICY IN THE DEPARTMENT OF THE AIR FORCE.

IT IS REPORTED THAT THE AIR FORCE REQUIREMENT FOR MULTIMETERS PRIOR TO FEBRUARY 1964, WAS BEING SATISFIED BY A HIGH-PRICED MILITARIZED ITEM KNOWN AS PSM6 IN ACCORDANCE WITH MIL-M-45520. THIS ITEM WAS BEING PROCURED AT A COST OF APPROXIMATELY $150 EACH AND ALL SOLICITATIONS FOR THE ITEM WERE BEING SET ASIDE FOR SMALL BUSINESS IN ACCORDANCE WITH APPLICABLE REQUIREMENTS. IT WAS REALIZED THAT A LARGE PORTION OF THE AIR FORCE REQUIREMENT DID NOT REQUIRE THE ELABORATE AND EXPENSIVE HUMIDITY RUGGEDIZATION FEATURES AFFORDED BY THE PSM6 AND UTILIZATION OF COMMERCIAL ITEMS AVAILABLE ON THE OPEN MARKET AT A MUCH LOWER PRICE WAS DESIROUS. A RESULT, A SPECIFICATION, THE ONE UTILIZED IN THIS PROCUREMENT, WAS PREPARED.

IN YOUR PROTEST TO OUR OFFICE YOU HAVE CONTENDED THAT YOU WERE DENIED THE OPPORTUNITY TO SUBMIT MODIFIED ITEMS ON JANUARY 22, 1965, THAT WOULD MEET THE GOVERNMENT'S NEEDS IN THIS PROCUREMENT. IN THIS RESPECT,IT IS REPORTED BY THE CONTRACTING OFFICER THAT ON JANUARY 22, 1965, A REPRESENTATIVE OF YOUR COMPANY VISITED THE LABORATORY AND INFORMED THE GOVERNMENT ENGINEERS THAT THE NEW UNITS BEING SUBMITTED WERE IDENTICAL TO THOSE BEING PRESENTLY QUALIFIED EXCEPT FOR THE COVER AND ROLL TOP CASE AND THAT THESE DIFFERENCES HAD NO BEARING ON ELECTRICAL CHARACTERISTICS OF THE INSTRUMENT THEN UNDERGOING TESTS. CONSEQUENTLY, YOUR REPRESENTATIVE WAS REQUESTED TO REPLACE THE COVERS AND CASES ON THE INSTRUMENTS INITIALLY PROVIDED. IT IS FURTHER POINTED OUT THAT IF YOU HAD NOTIFIED THE PROCURING AGENCY THAT YOU OBJECTED TO THIS, SUFFICIENT TIME WAS AVAILABLE, UNTIL FEBRUARY 23, 1965, 30 DAYS, TO QUALIFY YOUR MODIFIED UNITS. HAVING REGARD FOR THESE FACTS AND SINCE YOU ADMIT IN YOUR LETTER OF MAY 4, 1965, THAT YOUR REPRESENTATIVE WAS NOT AWARE OF ALL THE ENGINEERING CHANGES, IT APPEARS THAT YOUR MODIFIED UNITS WERE NOT TESTED AS A RESULT OF A MISUNDERSTANDING AND THAT YOUR REPRESENTATIVE DIRECTLY CONTRIBUTED TO SUCH MISUNDERSTANDING. IN THE CIRCUMSTANCES WE ARE UNABLE TO AGREE WITH YOUR CONTENTION THAT THE GOVERNMENT REFUSED TO TEST YOUR PRODUCT.

WITH RESPECT TO THE SPECIFIC REASONS ENUMERATED IN YOUR PROTEST AS TO WHY THE LOW BIDDER (BRUNO-NEW YORK INDUSTRIES CORPORATION) SHOULD BE DECLARED NONRESPONSIVE TO THE INVITATION, THE DEPARTMENT OF THE AIR FORCE REPORTS THAT:

"A. LOSS OF CONTROL, TESTED SAMPLES. SIMPSON ALLEGES THAT SINCE QUALIFIED ITEMS HAVE BEEN RETURNED THERE IS NO ASSURANCE THAT THE GOVERNMENT WILL RECEIVE AN ACCEPTABLE ITEM. IN ADDITION TO THE INFORMATION PROVIDED IN THE ENGINEERS COMMENTS (ATCH. NO. 12), IT IS SUBMITTED THAT ANY AWARD MADE WOULD REQUIRE INCORPORATION OF THE SPECIFICATION IDENTIFYING THE GOVERNMENT'S MINIMUM REQUIREMENTS. THIS SPECIFICATION PROVIDES UNDER PARAGRAPH 4.3, A REQUIREMENT TO ACCOMPLISH THE IDENTICAL TEST FOR THE PRODUCTION ITEMS AS WAS CONDUCTED DURING THE QUALIFICATION TESTING. (MIL-M-38706 USAF)

"B. COMMERCIAL MANUALS:

"SIMPSON ELECTRIC COMPANY ALLEGES THAT SINCE THE LOW BIDDER, BRUNO NEW YORK INDUSTRIES CORP., HAS NEVER SOLD THE ITEM COMMERCIALLY, THEIR COMMERCIAL MANUALS ARE NOT ACCEPTABLE. THE CONTRACTING OFFICER HAS BEEN ADVISED, (ATCH. NO. 15), THAT THE MANUALS SUBMITTED BY BRUNO-NEW YORK INDUSTRIES CORP., WITH THEIR SAMPLES, WAS SUFFICIENT TO DETERMINE ITS CAPABILITY FOR PROVIDING ADEQUATE DATA.

"C. LATENT DEFECTS AND PACKAGING:

"PRESERVATION AND PACKAGING INCLUDED IN THE IFB WAS COORDINATED THROUGH THE APPLICABLE PRESERVATION AND PACKAGING OFFICE AT THIS HEADQUARTERS, AND WAS DETERMINED TO BE SUFFICIENT TO COVER THE DELIVERY DESTINATIONS SPECIFIED. ALL BIDDERS SUBMITTING A BID, QUOTED ON THE SAME LEVEL OF PRESERVATION AND PACKAGING.

"D. EVIDENCE OF QUALIFICATION:

"SIMPSON ELECTRIC COMPANY IS ALLEGING THAT THE LOW BIDDER SUBMITTED A BID WHILE THEIR ITEMS WERE UNDERGOING QUALIFICATION, ON THE ASSUMPTION THAT THEY MIGHT PASS QUALIFICATION TESTS. THE IFB STATED THAT BIDS WOULD BE ENTERTAINED ONLY FROM THOSE MANUFACTURERS WHO WERE QUALIFIED AT THE TIME OF OPENING. THE LOW BIDDER WAS QUALIFIED BY CONCERNED AIR FORCE QUALIFICATION ENGINEERS PRIOR TO BID OPENING. THE ENGINEERING COMMENT, WITH RESPECT TO WHEN BRUNO QUALIFIED, IS CONTAINED IN ATTACHMENT NO. 10.

"E. FIELD SERVICES:

"SIMPSON ELECTRIC COMPANY IS ALLEGING THAT THE LOW BIDDER CAN CONTRACTUALLY AVOID FURNISHING QUALIFIED TECHNICIANS TO SERVICE THE ITEM IN THE FIELD. THE CONTRACTING OFFICER IS OF THE OPINION THAT, UNDER THE STANDARD COMMERCIAL WARRANTY CLAUSE CONTAINED IN THE IFB AMEND. NO. 1, THE LOW BIDDER IS OBLIGATED TO FURNISH ANY SERVICES COVERED BY THE WARRANTY CLAUSE WITHIN THE WARRANTY PERIOD. ANY SERVICES FURNISHED, NOT COVERED BY THE WARRANTY CLAUSE, WOULD BE SUBJECT TO ADDITIONAL COMPENSATION, REGARDLESS OF WHOM THE CONTRACT IS AWARDED TO.

"F. STATUS OF SPECIFICATION:

"AMENDMENT NO. 1 TO THE IFB SPECIFICALLY REVISES THE SPECIFICATION. THERE IS NO UNCERTAINTY AS TO THE GOVERNMENT'S INTENT, AS INDICATED IN THE CONTRACTOR'S ALLEGATION. IN ADDITION, IT IS POINTED OUT THAT FORMAL REVISIONS TO THIS AND OTHER SPECIFICATIONS CONTAINING THE LOGISTICAL REQUIREMENTS ARE CURRENTLY BEING PREPARED FOR DISTRIBUTION. THE REASONS FOR THIS AMENDMENT ARE CONTAINED IN THE FACTS AFOREMENTIONED. WITH RESPECT TO SIMPSON'S ALLEGATION THAT THE LOW BIDDER IS NOT QUALIFIED, REFERENCE IS MADE TO THE FAVORABLE FCR CONTAINED IN FILE UNDER TAB E.'

WE HAVE CONSISTENTLY HELD THAT THE CONTRACTING AND ADMINISTRATIVE OFFICIALS OF THE GOVERNMENT ARE EMPOWERED TO DETERMINE THE NEED FOR EQUIPMENT TO MEET PARTICULAR SPECIFICATIONS AND WHETHER THE EQUIPMENT OFFERED MEETS THOSE SPECIFICATIONS; AND SUCH DETERMINATIONS ARE CONTROLLING IN THE ABSENCE OF CAPRICIOUS OR ARBITRARY ACTION. 17 COMP. GEN. 554, 36 ID. 251, 40 ID. 35.

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