B-157121, DEC. 20, 1965, 45 COMP. GEN. 357

B-157121: Dec 20, 1965

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CANCELED UNDER SECTION 2-404.1 (B) (I) OF THE ARMED SERVICES PROCUREMENT REGULATION AFTER THE OPENING OF THREE RESPONSIVE BIDS ON THE BASIS THE SPECIFICATIONS WERE INADEQUATE AND/OR AMBIGUOUS AND DID NOT REFLECT THE NEEDS OF THE GOVERNMENT MAY BE REINSTATED UPON THE ADMINISTRATIVE DETERMINATION NO REASON EXISTED FOR THE CANCELLATION AND AN AWARD MADE ON THE BASIS OF PRICE ALONE TO THE LOWEST RESPONSIBLE BIDDER. THE VALIDITY OF THE SPECIFICATIONS AND THE RESPONSIVENESS OF THE BIDS SHOULD HAVE BEEN DETERMINED BEFORE ANY ACTION WAS TAKEN TO PROCEED WITH THE AWARD OR CANCEL THE INVITATION. THREE BIDS WERE RECEIVED AND OPENED ON JUNE 28. THE BIDS WERE ABSTRACTED AS FOLLOWS: TABLE DURA $4. 675.00 EACH WHILE IT APPEARED THAT ALL THREE BIDS RECEIVED WERE RESPONSIVE.

B-157121, DEC. 20, 1965, 45 COMP. GEN. 357

CONTRACTS - SPECIFICATIONS - MINIMUM NEEDS REQUIREMENT - CANCELLATION AND REINSTATEMENT OF INVITATION AN INVITATION TO BID ON EQUIPMENT, CANCELED UNDER SECTION 2-404.1 (B) (I) OF THE ARMED SERVICES PROCUREMENT REGULATION AFTER THE OPENING OF THREE RESPONSIVE BIDS ON THE BASIS THE SPECIFICATIONS WERE INADEQUATE AND/OR AMBIGUOUS AND DID NOT REFLECT THE NEEDS OF THE GOVERNMENT MAY BE REINSTATED UPON THE ADMINISTRATIVE DETERMINATION NO REASON EXISTED FOR THE CANCELLATION AND AN AWARD MADE ON THE BASIS OF PRICE ALONE TO THE LOWEST RESPONSIBLE BIDDER, THE "AFTER-THE-FACT" TECHNICAL EVALUATION OF THE EQUIPMENT OFFERED BY THE TWO LOW BIDDERS UNDER THE INVITATION WHICH IMPOSED NO SAMPLE, TESTING, BRAND NAME, OR DESCRIPTIVE LITERATURE REQUIREMENTS OFFERING BIDDERS NO "SECOND CHANCE" TO QUALIFY EQUIPMENT, THE EVALUATION FOR THE PURPOSE OF JUDGING THE MERITS OF THE HIGH BIDDER'S PROTEST DOES NOT CONSTITUTE PREFERENTIAL TREATMENT, NOR WOULD IT SERVE TO REINSTATE A DEFECTIVE INVITATION AND, ALTHOUGH, THE VALIDITY OF THE SPECIFICATIONS AND THE RESPONSIVENESS OF THE BIDS SHOULD HAVE BEEN DETERMINED BEFORE ANY ACTION WAS TAKEN TO PROCEED WITH THE AWARD OR CANCEL THE INVITATION, THE SUBSEQUENT ADMINISTRATIVE DETERMINATION OF SPECIFICATION ADEQUACY AND BIDDER RESPONSIVENESS IF CONCLUSIVE OF THE ISSUES.

TO THE SECRETARY OF THE ARMY, DECEMBER 20, 1965:

BY LETTER DATED OCTOBER 1, 1965, WITH ENCLOSURES, AS SUPPLEMENTED BY LETTER DATED NOVEMBER 29, 1965, WITH ENCLOSURES, THE DIRECTOR OF PROCUREMENT FURNISHED DOCUMENTED REPORTS ON THE PROTESTS OF FRIDEN, INC., DURA BUSINESS MACHINES AND SMITH CORONA MARCHANT (SCM) CORPORATION UNDER INVITATION FOR BIDS NO. AII-44-036-65-33.

THE INVITATION, ISSUED ON JUNE 10, 1965, BY THE PURCHASING AND CONTRACTING DIVISION, FORT MONROE, VIRGINIA, REQUESTED BIDS FOR 120 HEAVY DUTY AUTOMATIC TYPEWRITING MACHINES "COMPLETE WITH ALL ATTACHMENTS IN ACCORDANCE WITH THE SPECIFICATIONS.' THREE BIDS WERE RECEIVED AND OPENED ON JUNE 28, 1965, AND THE BIDS WERE ABSTRACTED AS FOLLOWS:

TABLE

DURA $4,975.00 EACH

SCM 5,659.05 EACH

FRIDEN 6,675.00 EACH

WHILE IT APPEARED THAT ALL THREE BIDS RECEIVED WERE RESPONSIVE, SINCE NONE OF THE BIDDERS TOOK ANY EXCEPTION TO THE SPECIFICATIONS, IMMEDIATELY AFTER BID OPENING FRIDEN PROTESTED ON THE BASIS THAT NEITHER OF THE TWO LOW BIDDERS COULD MEET THE ADVERTISED SPECIFICATIONS. IN PARTICULAR, IT WAS CONTENDED BY FRIDEN THAT DURA COULD NOT MEET THE FOLLOWING SPECIFICATIONS:

C. CARRIAGE: 16 INCHES TO ACCOMMODATE A MAXIMUM FORM WIDTH OF 15 INCHES.

E. ACCURACY: PARITY CHECK TO INSURE PROPER PUNCHING OF CODES. KEYLEVER INTERLOCK TO INSURE THAT NO MORE THAN ONE KEY CAN BE DEPRESSED AT A TIME. ELECTRICAL ACCURACY CHECK TO INSURE THAT ALL CIRCUITS ARE FUNCTIONING PROPERLY.

F. THE EQUIPMENT MUST PROVIDE FOR ENCODING SELECTED PORTIONS OF DATA IN ONE OR TWO BY-PRODUCT TAPES. TWO (2) METHODS TO ACCOMPLISH THIS MUST BE AVAILABLE:

(1) AUTOMATICALLY TURNING ON/OFF EITHER OR BOTH OF UP TO TWO (2) TAPE PUNCHING DEVICES BY A CODE IN TAPE BEING READ ON EITHER OF THE TWO (2) READING DEVICES.

(2) AUTOMATICALLY TURNING ON/OFF EITHER OR BOTH OF UP TO TWO (2) TAPE PUNCHING DEVICES AT DESIRED POSITIONS DURING THE HORIZONTAL TYPING MOVEMENT OF THE WRITING MACHINE.

G. KEYBOARD:

(1) ALL CODES WHICH CAN BE PUNCHED IN THE TAPE SHOULD BE REPRESENTED BY A KEYLEVER ON THE KEYBOARD.

(2) POSITIVE LOCKING BASKET SHIFT KEYS TO INSURE THAT THE MACHINE IS LOCKED IN THE PROPER CASE AT ALL TIMES.

(3) THE FOLLOWING SPECIAL CHARACTERS MUST BE REPRESENTED ON THE KEYBOARD AND MUST PUNCH THE CODES INDICATED ON THE ATTACHED CHART SO THAT THE MACHINE WILL BE COMPATIBLE WITH THE MODEL SPD FLEXOWRITERS CURRENTLY USED BY THE NAVY FOR PROCESSING RECRUITS.

H. FLEXIBILITY: REMOVABLE PROGRAM PANEL OR EQUIVALENT TO PROVIDE FLEXIBILITY. THE MACHINE MUST BE CAPABLE OF PROVIDING THREE (3) OR MORE DIFFERENT INPUT FORMATS WITH REGARD TO THE PUNCHING OF SPECIAL CHARACTERS AND PROGRAM CODES. THE FORMAT CHANGES MUST BE ACCOMPLISHED WITHOUT ALTERING THE BASIC MACHINE. IN OTHER WORDS, IN SOME CASES CERTAIN SPECIAL CHARACTERS MUST PUNCH INTO THE TAPE. AT OTHER TIMES, THESE SPECIAL CHARACTERS MUST BE BLOCKED FROM PUNCHING INTO THE TAPE. SPECIAL CHARACTERS AND PROGRAM CODES REFERRED TO ARE THOSE WHICH ARE REPRESENTED ON THE KEYBOARD.

I. TAPE SORTING: A MACHINE TO PROVIDE THE ABILITY TO SORT SELECTED PORTIONS OF THE BY-PRODUCT TAPE. TAPES MUST BE SORTED ON LOCATION INTO SEVERAL DIFFERENT CATEGORIES. THESE CATEGORIES ARE: ARMY INDUCTED, NAVY ENLISTED, ARMY ENLISTED, AIR FORCE ENLISTED, AND PRIOR SERVICE MEN. OTHER CATEGORIES OF SORTING WILL BE ADDED SUCH AS: MALE, FEMALE, AND PHYSICAL CATEGORY. IN ADDITION TO THE ABOVE CERTAIN ADDRESS LOCATIONS WILL BE NEEDED FOR PROGRAMMING THE VARIOUS FORMS INVOLVED.

J. AUTOMATIC FIELD DEFINITION: THE MACHINE MUST BE EQUIPPED TO PREVENT AN OPERATOR FROM OVERFILLING OR UNDERFILLING A FIELD ON THE FORM AND IN THE TAB CARD.

K. REMOVABLE TAB AND FIELD PUNCH CONTROL RACK OR EQUIVALENT TO ELIMINATE THE MANUAL SETTING OF TABS AND CHANGING OF FIELD PUNCH CONTROL ACTUATORS WHENEVER AN OPERATOR CHANGES FROM ONE (1) FORM TO ANOTHER.

N. AN EQUIPMENT PROVISION SHOULD PERMIT A TERMINATION OF THE TAPE READING OPERATION UPON DETECTION OF A CODE COMPLETELY DIFFERENT FROM THE NORMAL STOP CODE. IN OTHER WORDS, THE MACHINE MUST HAVE TWO (2) SEPARATE AND DISTINCT STOP CODES.

FRIDEN ALSO CONTENDED THAT DURA COULD NOT MEET THE REQUIREMENTS OF SPECIAL PROVISION 5 WHICH PROVIDED:

IN THE INTEREST OF THE GOVERNMENT, THE CONTRACTOR SHALL FURTHER WARRANT AS PART OF THIS BID, TO PROVIDE SERVICES AND MAINTENANCE, OR FURNISH A CONTRACTOR-OWNED MACHINE AS TEMPORARY REPLACEMENT, WITHIN NINE (9) WORKING HOURS AFTER RECEIPT OF NOTICE OF NON-OPERATIVE EQUIPMENT AT THE ZONE 1 RATE AS ESTABLISHED IN GSA FEDERAL SUPPLY SCHEDULE REGARDLESS OF LOCATION OF THE ARMED FORCES EXAMINATION AND INDUCTION STATIONS. A SERVICE AND MAINTENANCE CONTRACT WILL BE ESTABLISHED AFTER EXPIRATION OF THE MANUFACTURER'S GUARANTEE TO REFLECT ZONE 1 RATES TO BE APPLIED FOR ANY SERVICES OR MAINTENANCE REQUIRED. SERVICE AND MAINTENANCE WILL BE PERFORMED BY CERTIFIED FACTORY-TRAINED TECHNICIANS OR EXPERIENCED TECHNICIANS TRAINED AND SUPERVISED BY CERTIFIED FACTORY-TRAINED FIELD SERVICE INSTRUCTORS IN THE OPERATION, SERVICE AND MAINTENANCE OF THIS EQUIPMENT.

FURTHER, FRIDEN ALLEGED THAT SCM COULD NOT MEET SPECIFICATIONS 1G (1), 1G (3), 1H, 1I, 1K, 1N AND SPECIAL PROVISION 5, QUOTED ABOVE. ADDITIONALLY, FRIDEN CONTENDED THAT SCM COULD NOT MEET SPECIFICATION 11 WHICH PROVIDED:

THE MACHINE MUST BE OF A HEAVY DUTY NATURE AND NOT HAVE ANY SPECIFIC LIMIT ON THE NUMBER OF YEARS THE GOVERNMENT CAN KEEP THESE MACHINES UNDER SERVICE CONTRACTS.

IT IS REPORTED BY THE CONTRACTING OFFICER THAT UPON A REEXAMINATION OF THE SPECIFICATIONS IN LIGHT OF THE FRIEDEN PROTEST WHICH SPECIFICALLY DELINEATED THE AREAS OF ALLEGED NONRESPONSIVENESS OF DURA AND SCM,IT WAS DETERMINED, AFTER COORDINATION WITH THE POST JUDGE ADVOCATE, THAT THE SPECIFICATIONS WERE INADEQUATE AND/OR AMBIGUOUS AND DID NOT FULLY REFLECT THE NEEDS OF THE GOVERNMENT. THEREFORE, THE INVITATION WAS CANCELED ON JULY 1, 1965, IN RELIANCE UPON ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-404.1 (B) (I) WHICH AUTHORIZES THE CANCELLATION OF AN INVITATION AFTER OPENING BECAUSE OF INADEQUATE OR AMBIGUOUS SPECIFICATIONS.

ON JULY 20, 1965, THE PROCUREMENT ACTIVITY REQUESTED THE UNITED STATES ARMY INFORMATION AND DATA SYSTEMS COMMAND (AIDS) TO TEST AND EVALUATE THE EQUIPMENT OF DURA AND SCM TO DETERMINE THE VALIDITY OF FRIDEN'S PROTEST THAT NEITHER OF THE BIDDERS COULD MEET THE SPECIFICATIONS. A TECHNICAL EVALUATION OF THE TWO BIDDERS' MACHINES WAS CONDUCTED ON AUGUST 3, 1965, AND AIDS REPORTED AS TO BOTH MACHINE DEMONSTRATIONS THAT:

THE EQUIPMENT DEMONSTRATED WAS EVALUATED TO DETERMINE WHETHER OR NOT IT MET THE SPECIFICATIONS AS OUTLINED IN THE INVITATION FOR BIDS, NO. AII-44- 036-65-33 (AUTOMATIC TYPEWRITING MACHINE). * *

THE EVALUATION REPORT CONCLUDED WITH RESPECT TO THE DURA MACHINE THAT IT "MEETS THE SPECIFICATIONS OUTLINED IN THE INVITATION FOR BIDS.' RESPECTING THE SCM MACHINE, THE AIDS EVALUATION REPORT CONCLUDED AS FOLLOWS:

3. SUMMARY OF FINDINGS.

A. THE SCM MODEL 2816 DEMONSTRATED DID NOT CONTAIN ALL OF THE FEATURES REQUIRED IN THE SPECIFICATIONS.

B. NOT ALL OF THE EQUIPMENT BID WAS INCLUDED ON THE FY 65 GSA FEDERAL SUPPLY SCHEDULE AND ONE ITEM (NINE CODE SEARCHER DECODER) HAS NOT BEEN MANUFACTURED.

C. IN THE TECHNICAL JUDGMENT OF THE OFFICE PERFORMING THIS EVALUATION, IN VIEW OF THE PAST PERFORMANCE OF SMITH CORONA MARCHANT CORPORATION AND THE PRESENT LEVEL OF STATE-OF-THE-ART IN AUTOMATIC OFFICE EQUIPMENT, THE SMITH CORONA MARCHANT CORPORATION CAN DELIVER EQUIPMENT THAT MEETS THE SPECIFICATIONS OUTLINED IN INVITATION FOR BIDS * * * AND OTHERWISE MEETS ALL TERMS AND CONDITIONS CONTAINED THEREIN.

HOWEVER, SINCE THE OCTOBER 1 REPORT WHICH RECOMMENDED THAT THE PROTESTS OF FRIDEN AND DURA BE DENIED WAS FOUND BY OUR OFFICE TO BE DEFICIENT IN SEVERAL MATERIAL RESPECTS, ESPECIALLY AS TO THE BASIS FOR THE CANCELLATION OF THE INVITATION, WE INFORMALLY REQUESTED ADDITIONAL INFORMATION AND DOCUMENTATION IN SUPPORT OF THE ACTION TAKEN. WE ARE NOW ADVISED IN THE NOVEMBER 29, 1965, REPORT THAT THE SPECIFICATIONS AS ISSUED CONVEY CLEARLY AND ACCURATELY THE MINIMUM ESSENTIAL REQUIREMENTS OF THE GOVERNMENT, AND THAT SUCH SPECIFICATIONS ARE NOT IN FACT AMBIGUOUS. IN EFFECT, THE DEPARTMENT NOW HAS CONCLUDED THAT NO COMPELLING REASONS EXISTED AT THE TIME FOR CANCELLATION OF THE INVITATION.

IN A LETTER DATED DECEMBER 6, 1965, THE ATTORNEYS FOR FRIDEN ADVANCED FURTHER ARGUMENTS IN SUPPORT OF THEIR POSITION THAT AWARD SHOULD BE MADE TO FRIDEN AS THE LOWEST RESPONSIVE BIDDER OR, IN THE ALTERNATIVE, THAT THE INVITATION REMAIN CANCELED IF IT BE DETERMINED THAT DURA AND SCM ARE RESPONSIVE BIDDERS. SPECIFICALLY, IT IS CONTENDED BY THE ATTORNEYS THAT:

1. THE AIDS DEMONSTRATION WAS ILLEGAL AND CONSTITUTED PREFERENTIAL CONSIDERATION TO DURA AND SCM.

2. ALTERNATELY, THE CONTRACTING OFFICER'S CHANGE FROM A DETERMINATION OF AMBIGUITY TO NONAMBIGUITY BASED ON THE AIDS EVALUATION IS INVALID BECAUSE OF THE ILLEGALITY OF THE DEMONSTRATION.

3. ALTERNATELY, SINCE THE ARMY ADMITS THAT IT DOES NOT WANT THE EQUIPMENTS OF DURA AND SCM, THE INVITATION SHOULD BE CANCELED IN THE BEST INTERESTS OF THE GOVERNMENT.

SINCE THESE ARGUMENTS ARE GERMANE TO THE ISSUES INHERENT IN THIS PROCUREMENT, WE BELIEVE IT NECESSARY TO CONSIDER THEM IN THE DISPOSITION OF THE MATTER.

BEFORE DISCUSSING THE ABOVE THREE POINTS, IT IS PERTINENT TO CONSIDER THE LEGAL ASPECTS OF THE INVITATION. THE INVITATION REQUESTED BIDS IN ACCORDANCE WITH THE ADVERTISED SPECIFICATIONS; IT IMPOSED NO SAMPLE, TESTING, ITEM OR BRAND NAME IDENTIFICATION, OR DESCRIPTIVE LITERATURE REQUIREMENTS. IN OTHER WORDS, UNDER THE INVITATION A RESPONSIVE BIDDER'S BID WOULD BE FOR EVALUATION ON THE BASIS OF PRICE ONLY IN THE ABSENCE OF SPECIFIC EXCEPTION TAKEN TO THE SPECIFICATIONS. THEREFORE, IT IS OUR OPINION THAT AN OTHERWISE RESPONSIBLE, QUALIFIED BIDDER WOULD BE ELIGIBLE FOR AWARD BASED ON PRICE ALONE.

WE AGREE WITH FRIDEN THAT THE AIDS DEMONSTRATION WAS NOT AUTHORIZED BY THE INVITATION OR THAT IT CONSTITUTED AN EVALUATION FACTOR DETERMINATIVE OF RESPONSIVENESS. AS WE UNDERSTAND IT, THE DEMONSTRATION CONDUCTED BY AIDS WAS REQUESTED BY THE PROCUREMENT ACTIVITY SOLELY TO DETERMINE THE VALIDITY OF THE FRIDEN PROTEST. WE FIND NO EVIDENCE OF RECORD TO SUPPORT THE CONTENTION THAT THE PURPOSE OF THE AIDS DEMONSTRATION WAS TO GIVE DURA AND SCM AN OPPORTUNITY TO QUALITY THEIR EQUIPMENTS SO AS TO BE RESPONSIVE TO THE SPECIFICATIONS. DURA AND SCM DID NOT, BY AGREEING TO THE DEMONSTRATION, CHANGE OR MODIFY THEIR BIDS WHICH WERE ALREADY RESPONSIVE TO THE INVITATION. THIS WAS NOT THE SITUATION, TO WHICH OUR OFFICE HAS OBJECTED, WHEREIN A BIDDER IS GIVEN A "SECOND CHANCE" TO SUBMIT A RESPONSIVE BID (38 COMP. GEN. 532), OR WHERE RESPONSIVENESS IS DETERMINED DEHORS THE INVITATION (38 COMP. GEN. 550). IT IS, OF COURSE, AXIOMATIC THAT THE RESPONSIVENESS OF A BID MUST BE DETERMINED WITHIN THE FOUR CORNERS OF THE INVITATION. 45 COMP. GEN. 221. WHILE WE RECOGNIZE THAT A LOW BIDDER MAY VOLUNTARILY AGREE TO ADDITIONAL EVALUATION CRITERIA, WE DO NOT FEEL THAT AN AFTER-THE-FACT TECHNICAL EVALUATION, AS HERE, MAY BE USED TO BOTH REINSTATE AN ALLEGEDLY DEFECTIVE INVITATION AND TO MAKE AN AWARD THEREUNDER. AT THE MOST, THE AIDS DEMONSTRATION SHOULD BE REGARDED AS A DEVICE WHEREBY THE MERITS OF THE FRIDEN PROTEST COULD BE JUDGED.

IT IS FURTHER CONTENDED THAT AS A RESULT OF THE AIDS DEMONSTRATION, THE ARMY IS NOT REQUIRING A SEPARATE TAPE SORTER FROM DURA AND SCM (SEE PARAGRAPH 1I OF THE SPECIFICATIONS QUOTED ABOVE). WHILE THE AIDS DEMONSTRATION FOUND AS TO PARAGRAPH 1I THAT THE DURA MACHINE CAN BE PROGRAMMED TO SORT TAPES INTO THE SPECIFIED CATEGORIES THROUGH A SPECIAL CODE SELECTION ARRANGEMENT AND A PROGRAM TAPE, IT DID NOT DETERMINE, AS A FACT, WHETHER A SEPARATE OR INTEGRAL TAPE SORTER WAS REQUIRED BY THE SPECIFICATIONS. AIDS MERELY FOUND THAT THE DURA MACHINE HAD THE CAPABILITY TO SELECTIVELY SORT TAPE. IT APPEARS TO US THAT PARAGRAPH 1I,"TAPE SORTING," IS A PERFORMANCE-TYPE SPECIFICATION WHEREUNDER EITHER A SEPARATE OR MACHINE-INTEGRATED SORTER WOULD PROVIDE THE CAPABILITY CALLED FOR BY THIS SPECIFICATION. IT DOES NOT REQUIRE, AS CONTENDED, A TAPE- SORTING MACHINE SEPARATE AND APART FROM THE TYPEWRITER. IF A SEPARATE SORTER WERE CONTEMPLATED, THE SPECIFICATION WOULD HAVE BEEN SO WORDED WITHOUT REFERENCE TO "A MACHINE TO PROVIDE THE ABILITY TO SORT.' THIS PARTICULAR SPECIFICATION LEFT TO BIDDERS THE OPTION AS TO HOW TAPE SORTING IS TO BE ACCOMPLISHED. ALTHOUGH FRIDEN CONTENDS THAT ITS HIGH BID PRICE RESULTED FROM ITS INTENT TO FURNISH A SEPARATE TAPE SORTER, ITS BID MUST BE REGARDED AS AN OFFER TO MEET PERFORMANCE SPECIFICATIONS IN A PARTICULAR MANNER SELECTED BY IT. LIKE DURA, FRIDEN WOULD BE OBLIGATED ONLY TO FURNISH A TYPEWRITER WITH TAPE-SORTING ABILITY, THE MEANS WHEREBY THIS WOULD BE ACCOMPLISHED BEING LEFT TO THE BIDDER'S DISCRETION. IT WOULD BE CONTRARY TO ESTABLISHED PRINCIPLES OF COMPETITIVE BIDDING TO PERMIT FRIDEN NOW TO RECOMPUTE ITS BID ON THE BASIS OF AN INTEGRATED TAPE SORTER. SEE 17 COMP. GEN. 554. WE FEEL THAT THE LANGUAGE EMPLOYED IS CLEAR AND, IN ANY EVENT, IT WOULD BE FOR THE PROCUREMENT ACTIVITY IN ITS CONTRACT MANAGERIAL CAPACITY TO DETERMINE WHETHER THE SUCCESSFUL CONTRACTOR IS MEETING FULLY THE GOVERNMENT'S PERFORMANCE REQUIREMENTS, NOT ONLY AS TO TAPE SORTING BUT AS TO MAINTENANCE SERVICING AS REQUIRED BY SPECIAL PROVISION 5. TURNING TO POINT 2, ABOVE, WE REFER TO THE FACT THAT THE AIDS DEMONSTRATION WAS NOT THE SOLE BASIS FOR THE DEPARTMENT'S LATEST CONCLUSION THAT THE ADVERTISED SPECIFICATIONS CLEARLY AND ACCURATELY REFLECT THE MINIMUM ESSENTIAL NEEDS OF THE GOVERNMENT IN UNAMBIGUOUS TERMS. THE NOVEMBER 29 REPORT ADVISES THAT THIS WAS ARRIVED AT AFTER FURTHER STUDY, AND STATES, IN EFFECT, THAT THE AIDS DEMONSTRATION SHOWS THAT DURA AND SCM CAN MEET THE SPECIFICATIONS. WE MUST POINT OUT, HOWEVER, THAT THIS "SWITCH FROM A DETERMINATION OF AMBIGUITY TO NONAMBIGUITY" MAY NOT BE ATTRIBUTED TO THE CONTRACTING OFFICER; IT WAS BASED UPON THE TECHNICAL ADVICE OF EXPERIENCED PERSONNEL WHO WERE NOT INVOLVED IN THE PREVIOUS DETERMINATION. ALTHOUGH THE RECORD IS NOT ENTIRELY CLEAR AS TO THE TECHNICAL BASES FOR THIS CHANGE IN SPECIFICATION INTERPRETATION AND ANALYSIS, WE FEEL THAT IT IS NECESSARY AND PROPER TO ACCEPT AT FACE VALUE THE LATEST DEPARTMENTAL DETERMINATION OF NOVEMBER 29, 1965. IN THIS CONNECTION, IT IS EVIDENT THAT THE INCONSISTENT DETERMINATIONS REACHED IN THIS PROCUREMENT WERE DUE IN LARGE MEASURE TO THE INTRA AGENCY DIFFICULTIES IN DETERMINING THE GOVERNMENT'S NEEDS FOR AUTOMATIC TYPEWRITING MACHINES IN THE RECRUITMENT AND ENLISTMENT PROGRAM. THAT SUCH DIFFERENCES AND DIFFICULTIES HAD TO BE RESOLVED IS CLEAR, BUT IT IS QUESTIONABLE WHETHER THE AIDS DEMONSTRATIONS PROVIDED THE MEANS TO RESOLVE THE SPECIFICATION CONTROVERSY. WE DOUBT WHETHER IT HAD ANY VALID EFFECT UPON THE RIGHTS OF THE COMPETING BIDDERS WHO, THROUGH THEIR BIDS, AGREED ONLY TO BE BOUND TO THE ADVERTISED TERMS AND CONDITIONS OF THE INVITATION. IT APPEARS TO US THAT THE VALIDITY OF THE SPECIFICATIONS AND THE RESPONSIVENESS OF BIDS UNDER THE INVITATION SHOULD HAVE BEEN FINALLY DETERMINED, AFTER NECESSARY TECHNICAL AND LEGAL COORDINATION, BEFORE ANY ACTION WAS TAKEN EITHER TO PROCEED WITH AN AWARD OR TO CANCEL THE INVITATION FOR FAILURE TO MEET THE CRITERIA PRESCRIBED BY 10 U.S.C. 2305 (A) AND (B).

FRIDEN'S ATTORNEYS POINT OUT THAT IT ALONE LISTED THE EQUIPMENT IT PROPOSED TO FURNISH EVEN THOUGH THERE WAS NO INVITATION REQUIREMENT THEREFOR. THEY CONTEND THAT THE ABSENCE OF SUCH A LISTING ON THE PART OF DURA AND SCM REQUIRED THE AIDS DEMONSTRATION. FURTHER, THEY CONTEND THAT FRIDEN'S BID ON ITS FACE WAS THE ONLY RESPONSIVE BID. AS WE SEE THE MATTER, WITH OR WITHOUT SUCH A LISTING, FRIDEN WAS A RESPONSIVE BIDDER AND THE FACT THAT IT VOLUNTARILY IDENTIFIED ITS EQUIPMENT MADE IT NO MORE RESPONSIVE. SINCE THE INVITATION WAS SILENT IN THIS RESPECT, IT CANNOT BE SAID THAT DURA AND SCM WERE NONRESPONSIVE BECAUSE THEY FAILED TO LIST IN THEIR BIDS THE EQUIPMENT THEY PROPOSED TO FURNISH.

FRIDEN ATTORNEYS REFER TO THE CONTRACTING OFFICER'S STATEMENT OF AUGUST 26, 1965, WHEREIN HE STATED UNEQUIVOCALLY THAT A SEPARATE TAPE SORTER IS WHAT WAS CONTEMPLATED BY THE SPECIFICATIONS AND WHAT THE ARMY REQUIRES FOR ITS PARTICULAR MISSION. HE FURTHER STATED THAT THIS PATENT AMBIGUITY AS TO SEPARATE OR INTEGRATED TAPE SORTER IS SUFFICIENT STANDING ALONE TO JUSTIFY CANCELLATION OF THE INVITATION. THE ATTORNEYS POINT TO THIS AS JUSTIFYING CANCELLATION OF THE INVITATION AS BEING IN THE BEST INTERESTS OF THE GOVERNMENT IF DURA AND SCM ARE FOUND TO BE RESPONSIVE BIDDERS. ALSO, BY LETTER DATED DECEMBER 10, 1965, THE ATTORNEYS FOR FRIDEN FORWARDED AN AFFIDAVIT OF MR. LARRY F. SEELEY TO THE EFFECT THAT THE COMPTROLLER, HEADQUARTERS, ARMY RECRUITING COMMAND, INFORMED HIM THAT THE ARMY REQUIRED A FRIDEN SELECTRADATA OR EQUIVALENT (SEPARATE TAPE SORTER) TO FULFILL PARAGRAPH 1I. WE CANNOT GIVE ANY WEIGHT TO THE FOREGOING SINCE TO DO SO WOULD BE TO IGNORE THE FACT THAT PROCUREMENT RESPONSIBILITY WITHIN THE ARMY ULTIMATELY RESTS WITH THE SECRETARY OF THE ARMY. WITHOUT QUESTION, THAT OFFICE OF THE SECRETARY WHICH IS CONCERNED WITH THE ADMINISTRATION OF THE PROCUREMENT ACTIVITIES OF THE DEPARTMENT HAS THE AUTHORITY TO OVERRULE A SUBORDINATE DETERMINATION WHICH, IN THE JUDGMENT OF THE RESPONSIBLE SECRETARIAL OFFICIAL, WAS IN ERROR. SINCE THE DIRECTOR OF PROCUREMENT, OFFICE OF THE ASSISTANT SECRETARY (INSTALLATIONS AND LOGISTICS), HAS NOW DETERMINED THAT THE ADVERTISED SPECIFICATIONS ,CLEARLY AND ACCURATELY" REFLECT THE MINIMUM ESSENTIAL NEEDS OF THE GOVERNMENT AND THAT BOTH DURA AND SCM MEET THOSE SPECIFICATIONS, WE WILL ACCEPT SUCH DETERMINATION AS CONCLUSIVE AS TO THE ISSUES RAISED BY FRIDEN'S ATTORNEYS. THEREFORE, ITS PROTEST IS DENIED.

SCM HAS LATELY PROTESTED AGAINST ANY AWARD TO DURA ON THE BASIS THAT DURA IS NOT RESPONSIVE TO THE INVITATION SPECIFICATIONS. THIS CONSTITUTES A PREJUDGMENT THAT DURA CANNOT AND WILL NOT MEET THE SPECIFICATION WHICH IT WOULD BE CONTRACTUALLY BOUND TO DO IF IT WERE AWARDED THE CONTRACT. HOWEVER, THE CONTENTIONS RAISED BY SCM WERE CONSIDERED AND TECHNICALLY EVALUATED BY YOUR DEPARTMENT, AND IT WAS CONCLUDED THAT THEY WERE WITHOUT MERIT. IN VIEW OF THE TECHNICAL ADVICE RECEIVED IN THIS REGARD, WE CONCLUDE THAT SCM'S PROTEST ALSO SHOULD BE DENIED. 17 COMP. GEN. 554.

ACCORDINGLY, UPON REVIEW OF THE RECORD BEFORE US, AND SINCE IT NOW APPEARS THAT NO COMPELLING REASONS EXISTED FOR CANCELLATION OF THE INVITATION, WE WOULD HAVE NO OBJECTION IF IT BE ADMINISTRATIVELY DETERMINED TO REINSTATE THE INVITATION FOR THE PURPOSE OF MAKING AN AWARD TO THE LOWEST RESPONSIBLE BIDDER.

WE ARE TRANSMITTING COPIES OF THIS DECISION TO THE PROTESTANTS AND TO THE INTERESTED MEMBERS OF THE CONGRESS.