B-157171, OCT. 12, 1965

B-157171: Oct 12, 1965

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INC.: REFERENCE IS MADE TO TELEGRAM DATED JULY 2. THE SUBJECT INVITATION FOR BIDS WAS ISSUED ON APRIL 14. WHICH ARE ESSENTIAL TO THE GOVERNMENT'S NEEDS. WERE DESCRIBED. THE CHARACTERISTICS OF THE EQUIPMENT WERE SET FORTH IN SPECIFICATIONS ATTACHED TO THE INVITATION FOR BIDS AND IN ORDER TO DETERMINE BRAND NAME EQUALITY. BIDS WERE PUBLICLY OPENED ON JUNE 11. THE FOLLOWING FIVE BIDS WERE RECEIVED: TABLE WILKENS INSTRUMENT AND RESEARCH. 042.56 THE RECORD SHOWS THAT AWARD OF CONTRACT WAS MADE TO MICRO-TEK INSTRUMENTS. THE BID OF COULSON INSTRUMENTS COMPANY WAS REJECTED AS NONRESPONSIVE BECAUSE COULSON REQUESTED NUMEROUS MAJOR DEVIATIONS FROM THE SPECIFICATIONS AND BECAUSE IT REQUESTED THAT THE DELIVERY SCHEDULE BE DELAYED BY AT LEAST 30 DAYS.

B-157171, OCT. 12, 1965

TO WILKENS INSTRUMENT AND RESEARCH, INC.:

REFERENCE IS MADE TO TELEGRAM DATED JULY 2, 1965, AND LETTERS DATED JULY 9, SEPTEMBER 1, AND SEPTEMBER 7, 1965, FROM YOUR ATTORNEYS, PROTESTING AGAINST AWARD OF CONTRACT TO MICRO-TEK INSTRUMENTS, INC., UNDER INVITATION FOR BIDS NO. 5018-5-14-65 (ALC), ISSUED BY THE PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE.

THE SUBJECT INVITATION FOR BIDS WAS ISSUED ON APRIL 14, 1965, AND INVITED BIDS FOR FURNISHING, DELIVERING, INSTALLING AND OPERATING SATISFACTORILY FOR 2 DAYS ON THE PREMISES OF EACH CONSIGNEE, 32 GAS CHROMATOGRAPHS.

THE INVITATION REQUIRED THE GAS CHROMATOGRAPH TO BE "MODEL MT 220/DPE AS MANUFACTURED BY MICRO-TEK INSTRUMENTS, INC., P.O. BOX 15409, BATON ROUGE, LOUISIANA, OR EQUAL," IN ACCORDANCE WITH SPECIFICATIONS MADE PART OF THE INVITATION. THE INVITATION INCLUDED THE STANDARD BRAND NAME OR EQUAL CLAUSE PRESCRIBED BY SECTION 1-1.307 6 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) AND, IN COMPLIANCE WITH THE PROVISIONS OF SECTION 1- 1.307-4 OF THE FPR, THE SALIENT CHARACTERISTICS OF THE BRAND NAME PRODUCT, WHICH ARE ESSENTIAL TO THE GOVERNMENT'S NEEDS, WERE DESCRIBED. THE CHARACTERISTICS OF THE EQUIPMENT WERE SET FORTH IN SPECIFICATIONS ATTACHED TO THE INVITATION FOR BIDS AND IN ORDER TO DETERMINE BRAND NAME EQUALITY, THE PROCURING AGENCY REQUIRED THE SUBMISSION OF DESCRIPTIVE LITERATURE AS A PART OF THE BIDS.

BIDS WERE PUBLICLY OPENED ON JUNE 11, 1965, AND THE FOLLOWING FIVE BIDS WERE RECEIVED:

TABLE

WILKENS INSTRUMENT AND RESEARCH, INC. $174,400.00

COULSON INSTRUMENTS COMPANY 176,000.00

PACKARD INSTRUMENT COMPANY, INC. 178,386.00

MICRO-TEK INSTRUMENTS, INC. 189,120.00

F AND M SCIENTIFIC CORPORATION214,042.56

THE RECORD SHOWS THAT AWARD OF CONTRACT WAS MADE TO MICRO-TEK INSTRUMENTS, INC., ON JUNE 30, 1965, AFTER THE CONTRACTING OFFICER HAD REJECTED THE FIRST 3 LOW BIDS AS NONRESPONSIVE. THE BID OF COULSON INSTRUMENTS COMPANY WAS REJECTED AS NONRESPONSIVE BECAUSE COULSON REQUESTED NUMEROUS MAJOR DEVIATIONS FROM THE SPECIFICATIONS AND BECAUSE IT REQUESTED THAT THE DELIVERY SCHEDULE BE DELAYED BY AT LEAST 30 DAYS. THE BID OF PACKARD INSTRUMENT COMPANY, INC., WAS REJECTED AS NONRESPONSIVE BECAUSE IT OFFERED ITS STANDARD PRODUCTION GAS CHROMATOGRAPH WHICH DID NOT MEET MANY OF THE SPECIFICATIONS. REGARDING THE LOW BID SUBMITTED BY YOUR FIRM, IT IS REPORTED THAT YOU OFFERED TO SUPPLY YOUR AEROGRAPH MODEL 2000 AND IN A LETTER ACCOMPANYING YOUR BID YOU STATED THAT DESCRIPTIVE LITERATURE FOR THAT INSTRUMENT "IS NOT YET IN PRINTED FORM; HOWEVER, A SPECIFICATION SHEET IS ENCLOSED.' WHEN THE BIDS WERE OPENED, IT WAS DISCOVERED THAT THE SPECIFICATION SHEET FOR THIS INSTRUMENT WAS NOT ENCLOSED WITH YOUR BID. AFTER THIS WAS CALLED TO YOUR ATTENTION BY A REPRESENTATIVE OF THE CONTRACTING OFFICER, YOU MAILED 3 COPIES OF THE SPECIFICATIONS FOR YOUR AEROGRAPH MODEL 2000 TO THE PUBLIC HEALTH SERVICE, WITH A COVERING LETTER DATED JUNE 11, 1965.

WITHOUT THE BENEFIT OF THE SPECIFICATIONS DESCRIBING YOUR AEROGRAPH MODEL 2000, THE CONTRACTING OFFICER, UPON RECEIPT OF TECHNICAL ADVICE, FOUND THAT IT WAS IMPOSSIBLE TO DETERMINE WHETHER YOUR PRODUCT MET THE REQUIREMENTS OF THE INVITATION FOR BIDS. NEVERTHELESS, IT WAS DECIDED TO MAKE A TECHNICAL EVALUATION OF YOUR BID TO DETERMINE WHETHER IT MET THE REQUIREMENTS OF THE INVITATION NOTWITHSTANDING THE FACT THAT THE SPECIFICATIONS WERE ACTUALLY RECEIVED AFTER BID OPENING. THEREFORE, IT IS SEEN THAT IN MAKING THE TECHNICAL EVALUATION, THESE SPECIFICATIONS WERE TAKEN INTO ACCOUNT. ON THE BASIS OF SUCH TECHNICAL EVALUATION THE CONTRACTING OFFICER MADE A FORMAL DETERMINATION TO REJECT YOUR BID AS NONRESPONSIVE AND A COPY OF SUCH DETERMINATION WAS MAILED TO YOU WITH A COVERING LETTER DATED JULY 1, 1965.

IN YOUR PROTEST YOU STATE THAT YOU BELIEVE THAT THE REQUIRED DESCRIPTIVE LITERATURE WAS ENCLOSED WITH YOUR BID AND THEN YOU STATE THAT IF THE REQUIRED MATERIAL WAS NOT ACTUALLY ATTACHED TO YOUR BID, THIS INADVERTENT OMISSION WAS REMEDIED ON THE SAME DAY IT WAS CALLED TO YOUR ATTENTION BY FORWARDING THE REQUIRED MATERIAL TO THE CONTRACTING OFFICER. YOU ALSO POINT OUT THAT IF THE DESCRIPTIVE LITERATURE WAS NOT INCLUDED WITH THE BID, IT WAS IDENTIFIED IN THE LETTER ACCOMPANYING THE BID AND WAS AVAILABLE TO THE PROCURING AGENCY PRIOR TO THE TIME OF EVALUATION. MOREOVER, YOU POINT OUT THAT YOUR FIRM OFFERED TO SUPPLY THE REQUIRED EQUIPMENT EXACTLY IN ACCORDANCE WITH SPECIFICATIONS WITH NO EXCEPTIONS.

OUR OFFICE CONSISTENTLY HAS HELD THAT THE DETERMINATION AS TO WHETHER A PARTICULAR PRODUCT OFFERED BY A BIDDER COMPLIES WITH SPECIFICATION REQUIREMENTS IS PRIMARILY A FUNCTION OF THE DEPARTMENT OR AGENCY CHARGED WITH THE ADMINISTRATION OF THE CONTRACT. SUCH DETERMINATION MUST, OF NECESSITY, BE BASED UPON FACTUAL INFORMATION AVAILABLE TO THE DEPARTMENT OR AGENCY PRIOR TO AWARD AND, IN THE ABSENCE OF A SHOWING OF BAD FAITH OR THE LACK OF A REASONABLE FACTUAL BASIS FOR THE DETERMINATION OUR OFFICE WILL NOT OBJECT TO THE CONCLUSION REACHED. IT IS REPORTED THAT IN CONSIDERING THE SPECIFICATIONS SUBMITTED BY YOU AFTER BID OPENING IT WAS FOUND AND DETERMINED BY THE CONTRACTING OFFICER THAT YOUR BID MUST BE REJECTED AS NONRESPONSIVE FOR FAILURE TO INCLUDE SUFFICIENT INFORMATION TO ENABLE THE GOVERNMENT TO DETERMINE WHETHER THE AEROGRAPH MODEL 2000 MET THE REQUIREMENTS OF THE INVITATION FOR BIDS AND TO ESTABLISH EXACTLY WHAT YOU WERE PROPOSING TO FURNISH. MORE SPECIFICALLY, WE ARE ADVISED THAT YOUR BID WAS DEFICIENT IN AT LEAST THE FOLLOWING FIVE RESPECTS, WHICH INFORMATION, WE UNDERSTAND, WAS CONVEYED TO YOU BY LETTER DATED JULY 1, 1965, FROM THE ADMINISTRATIVE AGENCY:

"/1) THE INVITATION FOR BIDS SPECIFIES "OVEN TEMPERATURE COMPENSATION SHALL BE PROVIDED TO PERMIT ABSOLUTE TEMPERATURE ACCURACY OF AT LEAST PLUS OR MINUS 1.0 DEGREE C OVER AMBIENT TEMPERATURES UP TO 40 DEGREES C.' THE AEROGRAPH MODEL 2000 SPECIFICATIONS MAKE NO MENTION OF THIS ABSOLUTE TEMPERATURE ACCURACY FEATURE. THE AEROGRAPH SPECIFICATIONS MERELY CITE A "REFERENCE THERMOCOUPLE JUNCTION WITH SOLID STATE TEMPERATURE COMPENSATING NETWORK.' I AM, THEREFORE, UNABLE TO DETERMINE WHETHER THE AEROGRAPH MODEL 2000 MEETS THE IFB REQUIREMENT.

"/2) THE INVITATION FOR BIDS REQUIRES THAT "THE INSTRUMENT SHALL INCLUDE A MODULE FOR THE METERING OF GASES TO THE IONIZATION DETECTORS. THIS MODULE SHALL BE COMPOSED OF FOUR NEEDLE VALVES, FOUR GAS FLOW METERS PERMITTING THE CONTROL OF SCAVENGER GAS FLOW TO THE ELECTRON CAPTURE DETECTOR AND FLOW OF HYDROGEN AND AIR TO A FLAME DETECTOR SYSTEM .....' SINCE THE AEROGRAPH SPECIFICATIONS MAKE NO MENTION OF SUCH A GAS METERING MODULE, I AM UNABLE TO DETERMINE WHETHER THE AEROGRAPH INSTRUMENT MEETS THIS REQUIREMENT.

"/3) THE INVITATION FOR BIDS STATES THAT "THE OVEN SHALL HAVE A COOLING RATE SUCH THAT IT WILL COOL FROM 250 DEGREES C TO 50 DEGREES C WITHIN LESS THAN 7 MINUTES WITHOUT REMOVAL OF COLUMN ACCESS DOOR.' THE AEROGRAPH SPECIFICATIONS DO NOT LIST ANY COOLING RATE, AND, THEREFORE, I AM UNABLE TO DETERMINE THAT THE AEROGRAPH INSTRUMENT MEETS THIS REQUIREMENT.

"/4) THE INVITATION FOR BIDS REQUIRES THAT "THERE SHALL BE ACCESS DOORS IN BOTH FRONT AND REAR OF COLUMN OVEN.' THE AEROGRAPH SPECIFICATIONS DO NOT PROVIDE FOR TWO DOORS. I AM, THEREFORE, UNABLE TO DETERMINE WHETHER THE AEROGRAPH MODEL MEETS THIS IFB REQUIREMENT.

"/5) THE INVITATION FOR BIDS REQUIRES THAT "EACH OF THE COLUMNS SHALL BE EQUIPPED WITH INDIVIDUAL CARRIER GAS FLOW METERS AND INDIVIDUAL CARRIER GAS DIFFERENTIAL FLOW CONTROLLERS WITH INDIVIDUAL NEEDLE VALVE ADJUSTMENT.' THIS REQUIREMENT IS A NECESSITY IN THE ART OF TEMPERATURE PROGRAMING IN GAS CHROMATOGRAPHY. SINCE THE AEROGRAPH SPECIFICATIONS DO NOT PROVIDE FOR SUCH A SYSTEM, I AM UNABLE TO DETERMINE WHETHER THE AEROGRAPH INSTRUMENT MEETS THIS REQUIREMENT.'

SUCH TECHNICAL EVALUATION APPEARS TO HAVE BEEN REACHED ONLY AFTER THOROUGH REVIEW OF YOUR INSTRUMENT AND THE RECORD ALSO INDICATES THAT A GAS CHROMATOGRAPH SPECIALIST OF THE FOOD AND DRUG ADMINISTRATION MADE AN INDEPENDENT EVALUATION OF YOUR BID AND AGREED WITH THE PUBLIC HEALTH SERVICE THAT YOUR BID WAS NONRESPONSIVE.

THE PRIMARY DETERMINATION AS TO WHETHER AN OFFERED PRODUCT COMPLIES WITH SPECIFICATIONS NECESSARILY RESTS WITH THE ADMINISTRATIVE PERSONNEL, SINCE SUCH PERSONNEL HAVE A COMPLETE AND DETAILED KNOWLEDGE OF THE PRODUCT OR EQUIPMENT BEING PROCURED, AS WELL AS OF THE USE OR FUNCTION THEREOF. ENGINEERS AND TECHNICIANS ARE AVAILABLE TO THE ADMINISTRATIVE AGENCY TO EVALUATE THE PRODUCT BEING OFFERED BY REFERENCE TO THE DESCRIPTIVE LITERATURE, SPECIAL TESTS, ETC. SINCE IT IS NOT APPARENT FROM THE RECORD BEFORE US THAT THE ADMINISTRATIVE DETERMINATION IN THIS REGARD WAS ARBITRARY OR CAPRICIOUS OR WITHOUT SUBSTANTIAL BASIS, AND SINCE THE PROCUREMENT OFFICIALS ARE BETTER QUALIFIED THAN OUR OFFICE TO REVIEW AND EVALUATE THE SUFFICIENCY OF OFFERED PRODUCTS TO DETERMINE WHETHER THEY MEET THE QUALITATIVE REQUIREMENTS THAT ARE NEEDED, WE WILL NOT ATTEMPT TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING AGENCY. 17 COMP. GEN. 554; 19 ID. 587; 35 ID. 174. 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.

IN VIEW OF THE FOREGOING, AND SINCE WE MAY NOT CONCLUDE THAT THE ADMINISTRATIVE ACTION IN THIS CASE WAS ARBITRARY OR CAPRICIOUS, WE SEE NO BASIS UPON WHICH WE COULD OBJECT TO THE AWARD MADE TO A HIGHER BIDDER.