B-157070, SEP. 21, 1965

B-157070, SEP. 21, 1965

TO BECKMAN INSTRUMENTS, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 22, 1965, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FORBIDS NO. AMC/X) 18-001-65-217, ISSUED MARCH 1, 1965, BY ABERDEEN PROVING GROUND, AND REQUESTING THAT A CONTRACT FOR THIS PROCUREMENT BE ISSUED TO YOUR FIRM.

THE CITED INVITATION SOLICITED BIDS FOR ONE SPECTROPHOTOMETER AND EIGHTEEN ITEMS OF ACCESSORIES THEREFOR. BY AMENDMENT NO. 1 THE BID OPENING WAS EXTENDED TO 11:30 A.M; E.S.T; APRIL 2, 1965. THE DESCRIPTION OF THE INSTRUMENT REQUESTED CONTAINED THE FOLLOWING:

"BECKMAN IR-12, CAT. NO. 131200 OR EQUAL AND IN ACCORDANCE WITH PURCHASE DESCRIPTION ENTITLED ,PURCHASE DESCRIPTION FOR AUTOMATIC RECORDING DOUBLE- BEAM OPTICAL NULL INFRA-RED CTROPHOTOMETER.'"

TEN SUPPLIERS WERE SOLICITED AND THEIR BIDS OFFERING THE PRODUCTS OF THREE DIFFERENT COMPANIES WERE SUBMITTED AS FOLLOWS:

PARKIN-ELMER CORPORATION $22,404.00

BECKMAN INSTRUMENTS 23,764.90

APPLIED PHYSICS CORPORATION 41,211.00

FOLLOWING REVIEW OF THE BIDS BY TECHNICAL PERSONNEL A MEMORANDUM OF MAY 17, 1965, ADVISED THE PROCUREMENT DIVISION THAT IT WAS BELIEVED THAT THE PERKIN-ELMER MODEL NO. 621 OFFERED BY THE LOW BIDDER ESSENTIALLY MET THE SPECIFICATIONS SET FORTH IN THE INVITATION AND THAT WHILE MODEL NO. 621 WAS AT VARIANCE WITH CERTAIN OF THE SPECIFICATIONS IN A FEW MINOR RESPECTS IT WAS BELIEVED THAT THE PERKIN ELMER INSTRUMENT WOULD SUFFICE TO MEET THE NEEDS OF THE AGENCY'S LABORATORY.

UNDER DATE OF JUNE 3, 1965, ON AWARD WAS MADE TO THE LOW BIDDER, PERKIN- ELMER CORPORATION IN THE AMOUNT OF $22,404, AND ON JUNE 7, 1965, BECKMAN WAS ADVISED BY THE CONTRACTING OFFICER THAT IT WAS NOT THE SUCCESSFUL BIDDER. ON JUNE 10, 1965, BECKMAN PROTESTED THE AWARD ON THE GROUND THAT PERKIN-ELMER'S BID DID NOT CONFORM TO THE SPECIFICATIONS AND IT REQUESTED THAT CORRECTIVE ACTION BE TAKEN. ON JUNE 11, 1965, ADDITIONAL DETAILS CONCERNING YOUR PROTEST WERE FURNISHED IN A TELEPHONE CONVERSATION WITH THE SUPERVISORY CONTRACT SPECIALIST AND ON JUNE 14, 1965, ADDITIONAL DETAILS CONCERNING YOUR PROTEST WERE FURNISHED IN A TELEPHONE CONVERSATION WITH THE SUPERVISORY CONTRACT SPECIALIST AND ON JUNE 14, 1965, YOUR MR. ERBES INFORMED HER THAT IN HIS OPINION THE PERKIN-ELMER EQUIPMENT DID NOT MEET THE INVITATION REQUIREMENTS FOR THE FOLLOWING REASONS:

"A. BID ITEM 1

PERKIN-ELMER EQUIPMENT DOES NOT HAVE:

(1) INTEGRAL STRIP CHART RECORDER

(2) SAMPLE SHUTTERS

(3) OPTICAL WAVE NUMBER READOUT

"B. BID ITEM 8

SPECS CALLED FOR RECTANGULAR DIE--- PERKIN-ELMER OFFERED CIRCULAR DIE.

NOTE: ACCORDING TO BECKMAN, BY USING CIRCULAR DIE, PERKIN ELMER'S BID COULD BE SEVERAL HUNDRED DOLLARS CHEAPER.

"C. BID ITEM 9

SPECS CALLED FOR RECTANGULAR PELLET HOLDER--- PERKIN-ELMER

OFFERED CIRCULAR.

"D. BID ITEM 12 AND 13

BECKMAN ALLEGES CHART PAPER REQUESTED IS NOT ACTUALLY REQUIRED FOR

USE WITH SPECTROPHOTOMETER ORDERED.

"E. BID ITEM 14

PERKIN-ELMER BID ON A BECKMAN CELL WHICH BECKMAN ALLEGES WILL NOT

WORK WITH PERKIN-ELMER EQUIPMENT. (NOTE: TECHNICAL PERSONNEL, BRL, STATE THAT IT WILL)

"F. BID ITEM 16

CELL HOLDER ASSEMBLY. PERKIN-ELMER INDICATED 2 OF THESE UNITS

WERE INCLUDED IN ITEM 1. BECKMAN STATED HIS BID ALSO INCLUDED 2

OF THESE UNITS IN ITEM 1 AND 2 MORE UNDER ITEM 16 AS SPARES.

"G. ALLEGATIONS WITH RESPECT TO PERKIN-ELMER'S NONCONFORMANCE WITH THE

PURCHASE DESCRIPTION WERE, IN GENERAL, AS FOLLOWS:

(1) LINE 7 CALLED FOR EQUIPMENT TO BE CAPABLE OF RECORDING SINGLE BEAM WITHOUT MODIFICATIONS BY A SWITCH ON THE CONTROL PANEL. BECKMAN ALLEGES PERKIN-ELMER LITERATURE DOES NOT SHOW THAT SUCH WAS THE CASE WITH THEIR INSTRUMENT.

(2) UNDER THE HEADING OF MONOCHROMATOR, PURCHASE DESCRIPTION INDICATED GRATINGS USED IN FIRST ORDER ONLY. PERKIN-ELMER USES GRATINGS IN FIRST AND SECOND ORDER.

"H. MANY OTHER POINTS INCLUDING FREQUENCY RESOLUTION, RECORDING, RUNBACK, CYCLING ACCURACY OF THE ORDINATE PRESENTATION, ACCURACY OF THE SINGLE BEAM, AMOUNT OF SCATTERED LIGHT, SCAN SPREAD, SAMPLING SPACE, OPTICS CHANGE, ETC. WERE MENTIONED BY BECKMAN.'

ON JUNE 14, 1965, BECKMAN WAS NOTIFIED BY THE CONTRACTING OFFICER THAT A THOROUGH REVIEW OF ITS PROTEST WOULD BE MADE AND THAT IT WOULD BE ADVISED FURTHER ON OR BEFORE JUNE 18, 1965. ON JUNE 15, 1965, PERKIN-ELMER WAS NOTIFIED OF YOUR PROTEST AND THEREAFTER IT PUT A "HOLD" ON ITS FACTORY PENDING THE OUTCOME OF YOUR PROTEST. AFTER REVIEW OF THE INVITATION PROVISIONS, IN THE LIGHT OF THE ABOVE VARIANCES INDICATED BY YOUR MR. ERBES, IT WAS ADMINISTRATIVELY CONCLUDED THAT THE EQUIPMENT OFFERED BY PERKIN-ELMER DID NOT COMPLY WITH THE INVITATION REQUIREMENTS AND THAT THEREFORE THE AWARD TO THAT BIDDER SHOULD BE CANCELLED. UNDER DATE OF JUNE 18, 1965, THE CONTRACT WITH PERKIN-ELMER WAS CANCELLED. BY MUTUAL AGREEMENT AND THE CONTRACTING OFFICER DETERMINED TO READVERTISE UNDER REVISED SPECIFICATIONS. THE CONTRACTING OFFICER HAS EXPLAINED THAT THIS ACTION WAS TAKEN IN GOOD FAITH BASED ON THE OPINION THAT WHILE THE LOW BIDDER DID PROPOSE TO FURNISH EQUIPMENT THAT WOULD MEET THE NEEDS OF THE GOVERNMENT, THE EQUIPMENT OFFERED DID DIFFER FROM THE SPECIFICATION REQUIREMENTS OF THE INVITATION IN AREAS WHICH AFFECTED THE SUBSTANCE OF THE BID.

UNDER 10 U.S.C. 2305/B) AND ASPR 2-407.1 AWARD MUST BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. IT IS FUNDAMENTAL THAT THE AWARD OF A CONTRACT PURSUANT TO A BID DEVIATING SUBSTANTIALLY FROM THE ADVERTISED SPECIFICATIONS DOES NOT RESULT IN A VALID AND BINDING CONTRACT. 43 COMP. GEN. 813; 34 ID. B2. ACCORDINGLY, ON THE BASIS THAT THE EQUIPMENT OFFERED BY PERKIN ELMER DID NOT CONFORM TO THE REQUIREMENTS OF THE INVITATION ITS BID WAS NONRESPONSIVE AND THEREFORE CANCELLATION OF THE CONTRACT AWARDED TO THAT BIDDER WAS PROPER.

AS TO YOUR PROTEST AGAINST THE PROPOSED READVERTISEMENT AND YOUR CONTENTION THAT AN AWARD SHOULD BE MADE TO YOUR FIRM UNDER THE ORIGINAL INVITATION NO. AMC/X) 18-001-65-217 AS THE LOWEST RESPONSIVE BIDDER, MRS. THELMA C. FREDERICK, THE SUPERVISORY CONTRACT SPECIALIST, HAS DENIED YOUR STATEMENT TO THE EFFECT THAT THE DETERMINATION TO READVERTISE WAS BASED ON THE FEAR THAT PERKIN-ELMER MIGHT PROTEST IF AN AWARD WAS MADE TO BECKMAN AFTER CANCELLATION OF ITS CONTRACT. IN THIS REGARD, ARMED SERVICES PROCUREMENT REGULATION 1-1201/A) PROVIDES IN PERTINENT PART AS FOLLOWS:

"PLANS, DRAWINGS SPECIFICATIONS OR PURCHASE DESCRIPTIONS FOR PROCUREMENTS SHALL STATE ONLY THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT AND DESCRIBE SUPPLIES AND SERVICES IN A MANNER WHICH WILL ENCOURAGE MAXIMUM COMPETITION AND ELIMINATE INSOFAR AS POSSIBLE ANY RESTRICTIVE FEATURES WHICH MIGHT LIMIT ACCEPTABLE OFFERS TO ONE SUPPLIER'S PRODUCT, OR THE PRODUCTS OF A RELATIVELY FEW SUPPLIERS. * * *"

THE CONTRACTING OFFICER HAS AUTHORITY TO REJECT ALL BIDS, CANCEL THE INVITATION, AND READVERTISE WHEN IT IS BROUGHT TO HIS ATTENTION THAT THE BIDS RECEIVED INDICATE THAT THE NEEDS OF THE GOVERNMENT CAN BE SATISFIED BY A LESS EXPENSIVE ARTICLE DIFFERING FROM THAT ORIGINALLY ADVERTISED. 143263, DECEMBER 22, 1960; B-153538, APRIL 9, 1964; 43 COMP. GEN. 209, 211, ASPR 2-404.1 (B) (V). IN THIS INSTANCE, THE CONTRACTING OFFICER HAS REPORTED THAT THE DETERMINATION TO CANCEL THE AWARD BY PERKIN-ELMER HAD TO READVERTISE WAS REACHED AFTER THOROUGH REVIEW BY THE PROCUREMENT, TECHNICAL AND LEGAL PERSONNEL, AND THAT THE ACTION WAS TAKEN IN GOOD FAITH. SINCE THE REQUIRING AGENCY HAS REPORTED THAT THE PRODUCT OFFERED BY THE LOW BIDDER WILL MEET ITS NEEDS WE THINK IT MUST BE CONCLUDED THAT THE REQUIREMENTS SET FORTH IN THE ORIGINAL INVITATION ARE UNNECESSARILY RESTRICTIVE AND DO NOT REPRESENT THE ACTUAL NEEDS OF THE GOVERNMENT.

IN VIEW THEREOF, WE BELIEVE THAT AN AWARD TO YOUR FIRM WOULD BE IMPROPER AND THAT THE PROCUREMENT SHOULD BE READVERTISED WITH A REVISED PURCHASE DESCRIPTION WHICH ADEQUATELY DESCRIBES THE GOVERNMENT'S REQUIREMENTS AND ACTS FORTH ONLY THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT.

FOR THE REASONS STATED, IT MUST BE CONCLUDED THAT THERE IS NO PROPER LEGAL BASIS FOR OBJECTING TO THE ADMINISTRATIVE ACTION TAKEN IN THIS CASE AND YOUR PROTEST AGAINST THE PROPOSED READVERTISEMENT MUST BE DENIED.