B-158092, MAR. 11, 1966

B-158092, MAR. 11, 1966

TO MICROWAVE ELECTRONICS CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 20, 1965, PROTESTING THE AWARD OF CONTRACT NO. DSA 9-21576 UNDER INVITATION FOR BIDS NO. DSA 9- 66-594, ON THE GROUND THAT NO BIDDER OR SUPPLIER HAS PREVIOUSLY FURNISHED THE ITEM CALLED FOR IN THE INVITATION, AND THAT IT WAS NOT PROPER TO CONSIDER OR ACCEPT A BID NOT BASED ON COMPLIANCE WITH THE FIRST ARTICLE TESTING PROVISION OF THE INVITATION.

THE INVITATION WAS ISSUED ON SEPTEMBER 8, 1965, BY THE DEFENSE ELECTRONICS SUPPLY CENTER, DEFENSE SUPPLY AGENCY, DAYTON, OHIO, AND REQUESTED BIDS FOR FURNISHING 86 UNITS OF AN ITEM DESCRIBED AS FOLLOWS:

"PR-S: 704232/704208/H. KORMOS/NL 5960-950-3451 ELECTRON TUBE, TRAVELING WAVE IN ACCORDANCE WITH RYAN AERONAUTICAL CO. SPEC. RS90022 E001, REV B DATED 5/10/63, SPEC 12459-254, REV A DATED 5/10/63, DWG IT 0207 AND EXHIBIT C HEREOF.

"BID "A" (EXCLUDING FIRST ARTICLE REQUIREMENT)

"BID "B" (FIRST ARTICLE TESTS INCLUDED)"

IN ADDITION, THE INVITATION CONTAINED THE FOLLOWING PROVISIONS:

"/J) THE CONTRACTING OFFICER MAY WAIVE THE FIRST ARTICLE REQUIREMENT ONLY UNDER ONE OF THE FOLLOWING CONDITIONS: (1) IF THE BIDDER IS PRODUCING THE ITEM UNDER A CURRENT GOVERNMENT CONTRACT WHICH REQUIRES FIRST ARTICLES, (2) IF THE BIDDER HAS PRODUCED THE ITEM UNDER A GOVERNMENT CONTRACT WHICH REQUIRED FIRST ARTICLE APPROVAL NOT MORE THAN EIGHTEEN (18) MONTHS PRIOR AND CERTIFIES TO REPRODUCE THE IDENTICAL ITEM. THEREFORE, BID SHOULD BE SUBMITTED ON TWO BASES (1) BID "A" (EXCLUDING FIRST ARTICLE REQUIREMENT, AND (2) BID "B" (FIRST ARTICLE REQUIREMENT INCLUDED). IF THE CONTRACTING OFFICER ELECTS TO WAIVE THE FIRST ARTICLE REQUIREMENT, AWARD WOULD BE MADE BASED ON BID "A" OR CONVERSELY, ON THE BASIS OF BID "B" IF THE FIRST ARTICLE REQUIREMENT IS NOT WAIVED.'

ON SEPTEMBER 30, 1965, AMENDMENT NO. 2 WAS ISSUED AND IT CHANGED THE BID OPENING DATE TO OCTOBER 5, 1965. THE AMENDMENT ALSO CHANGED THE PROVISIONS OF THE INVITATION FOR BIDS IN THE FOLLOWING MANNER:

"1. THE ITEM DESCRIPTION FOR ITEM 1 IS HEREBY CHANGED TO THE FOLLOWING:

5960-950-3451 ELECTRON TUBE, TRAVELLING WAVE IN ACCORDANCE WITH RYAN AERONAUTICAL CO. SPEC. RS90033-E001 DATED 21 SEP 1964

"2. THE FOLLOWING NOTE WHICH APPEARS AT THE BOTTOM OF PAGE 1 OF EXHIBIT "A" IS HEREBY DELETED:

*FIRST ARTICLE TESTS REQUIRED HEREUNDER SHALL CONSIST OF THE QUALIFICATION TEST SET FORTH IN RYAN QUALIFICATION TEST SPEC. 12459 254

"3. SPEC. RS90022-E001 IS HEREBY AMENDED TO PROVIDE FOR AN ALTERNATE LOCATION OF THE RF OUTPUT CONNECTOR AT A POINT NOT TO EXCEED 2.0 INCHES FROM THE COLLECTOR END OF THE TUBE.'

BY AMENDMENT NO. 3 DATED OCTOBER 1, 1965, EXHIBIT "C" OF THE INVITATION FOR BIDS WAS INCORPORATED INTO THE NEW NOMENCLATURE OF AMENDMENT NO. 2.

THE FOLLOWING 2 BIDS WERE RECEIVED AND OPENED ON OCTOBER 5, 1965:

CHART

EIMAC

A DIVISION OF

MICROWAVE VARIAN ASSOCIATES

BID "A" $ 950 $ 995

BID "B" 1,025 1,150

THE RECORD INDICATES THAT BY TELEGRAMS DATED OCTOBER 6 AND 7, 1965, YOUR FIRM PROTESTED AGAINST THE AWARD OF ANY CONTRACT TO EIMAC BASED ON A WAIVER OF FIRST ARTICLE TESTING. YOU CONTENDED THAT THE REVISED RYAN SPECIFICATION CITED IN THE AMENDED INVITATION FOR BIDS IS A DIFFERENT SPECIFICATION THAN THE ONE PREVIOUSLY USED BY THE DEFENSE ELECTRONICS SUPPLY CENTER (DESC) AND, THEREFORE, EIMAC, A PREVIOUS SUPPLIER, WOULD NOT BE ENTITLED TO A WAIVER OF FIRST ARTICLE TESTING.

IT IS REPORTED THAT UPON RECEIPT OF YOUR TELEGRAMS THE CONTRACTING OFFICER IMMEDIATELY BEGAN TO RESEARCH DESC RECORDS TO DETERMINE THE ELIGIBILITY OF YOUR FIRM AND EIMAC FOR A WAIVER OF FIRST ARTICLE TESTING. AN EXAMINATION OF THE FILES DISCLOSED THAT YOUR FIRM HAD NEVER PREVIOUSLY FURNISHED A TRAVELING WAVE TUBE, AND THAT EIMAC HAD BEEN AWARDED, AND SUCCESSFULLY COMPLETED, CONTRACT NO. DSA 9-15174 DATED OCTOBER 23, 1964, FOR A QUANTITY OF 34 TRAVELING WAVE TUBES UNDER INVITATION FOR BIDS NO. DSA 9-65-248. IT ALSO SHOWED THAT RYAN AERONAUTICAL CO. SPECIFICATION RS90022-E001 DATED MAY 10, 1963, AND EXHIBIT "C" HAD BEEN THE SPECIFICATIONS DESIGNATED IN THE IFB NOMENCLATURE. IN VIEW OF YOUR CONTENTION THAT EIMAC COULD NOT QUALIFY FOR A WAIVER OF FIRST ARTICLE TESTING UNDER THE TERMS OF IFB -594, SINCE THE RYAN SPECIFICATION CITED THEREIN WAS SUBSTANTIALLY DIFFERENT THAN THE RYAN SPECIFICATION APPLICABLE TO CONTRACT NO. DSA 9-15174 (IFB 248), THE CONTRACT UPON WHICH THE WAIVER HERE IS BASED, THE CONTRACTING OFFICER SUBMITTED THE MATTER TO DESC TECHNICAL PERSONNEL FOR CONSIDERATION. ON THE BASIS OF THE REPLIES RECEIVED ON OCTOBER 13 AND 14, 1965, FROM THE CHIEF, ACTIVE DEVICES BRANCH, QUALIFICATION DIVISION, AND THE DEPUTY DIRECTOR OF ENGINEERING STANDARDIZATION, RESPECTIVELY, AND A CERTIFICATION FROM EIMAC TO THE EFFECT THAT THE TUBES OFFERED WOULD BE IDENTICAL TO THOSE PRODUCED UNDER CONTRACT NO. DSA 9-15174, THE CONTRACTING OFFICER DETERMINED THAT WAIVER OF FIRST ARTICLE TESTING AS TO EIMAC UNDER THE APPLICABLE PROVISIONS OF IFB 594 WAS PROPER. ON OCTOBER 15, 1965, AWARD WAS MADE TO EIMAC UNDER BID "A.'

IN YOUR LETTER OF NOVEMBER 20, 1965, TO OUR OFFICE, YOU ALLEGE THAT EIMAC COULD NOT QUALIFY FOR WAIVER OF FIRST ARTICLE TESTING UNDER THE TERMS OF IFB -594 BECAUSE THE RYAN SPECIFICATION CITED THEREIN IS SUBSTANTIALLY DIFFERENT THAN THE RYAN SPECIFICATION APPLICABLE TO EIMAC'S PREVIOUS CONTRACT, DSA 9-15174. THE RECORD INDICATES THAT UPON RECEIPT OF A COPY OF YOUR LETTER OF NOVEMBER 20, 1965, THE CONTRACTING OFFICER SENT IT TO THE DIRECTORATE OF ENGINEERING STANDARDIZATION, DESC, WITH A SPECIFIC REQUEST TO COMMENT FROM A TECHNICAL STANDPOINT ON THE ALLEGED DIFFERENCES IN THE RYAN SPECIFICATIONS AS DETAILED IN POINTS A THROUGH H ON PAGES 3 AND 4 OF THAT LETTER. IN REPLY THAT DIRECTORATE SUBSTANTIATED IN DETAIL THE EARLIER PREAWARD TECHNICAL OPINION RELIED ON BY THE CONTRACTING OFFICER IN THE GRANTING OF THE WAIVER OF FIRST ARTICLE TESTING. ADDITION, THE DIRECTORATE ALSO FURNISHED A COPY OF A TELEGRAM DATED NOVEMBER 3, 1965, IN WHICH THE RYAN AERONAUTICAL CO. STATED ITS VIEWS AS TO THE TWO SPECIFICATIONS IN QUESTION.

WHILE THERE MAY WELL BE REASON FOR A DIFFERENCE IN TECHNICAL OPINION AS TO THE EXTENT OR MATERIALITY OF THE CHANGES INCORPORATED INTO RYAN SPECIFICATION RS90022-E001 DATED SEPTEMBER 21, 1964, YOU HAVE SUBMITTED NO CONVINCING EVIDENCE TO SUPPORT YOUR CONTENTIONS IN THIS AREA. IN THE ABSENCE OF SUCH EVIDENCE THIS OFFICE MUST ACCEPT THE CONCLUSION OF THE CONTRACTING AGENCY THAT THE CHANGES REFLECTED REQUIREMENTS WHICH DID NOT NECESSITATE FIRST ARTICLE TESTING, PARTICULARLY SINCE IT IS NOW SUPPORTED BY A STATEMENT FROM THE RYAN AERONAUTICAL CO. TO THE EFFECT THAT " * * * A TUBE QUALIFIED UNDER EITHER SPECIFICATION WOULD MEET THE REQUIREMENTS OF BOTH SPECIFICATIONS.' WE BELIEVE THAT THE EXPRESSIONS OF THAT COMPANY AS REGARDS ITS OWN SPECIFICATIONS SHOULD CARRY GREAT WEIGHT. WE MUST THEREFORE CONCLUDE THAT THE ACTION OF THE CONTRACTING OFFICER IN WAIVING FIRST ARTICLE TESTING AS TO EIMAC UNDER THE APPLICABLE PROVISIONS OF THIS INVITATION FOR BIDS WAS PROPER.

YOU FURTHER PROTEST THE AWARD OF THIS CONTRACT TO EIMAC ON THE GROUND THAT "* * * AN INADVERTENT VIOLATION OF ASPR SECTION 2-205.5 OCCURRED DURING THE DISTRIBUTION OF INFORMATION REGARDING AMENDMENT 2 OF IFB DSA 9- 66-594.' ASPR 2-205.5 PROHIBITS THE FURNISHING OF A LIST OF PROSPECTIVE BIDDERS OR THE RELEASING OF NAMES OF THOSE TO WHOM INVITATIONS FOR BIDS HAVE BEEN SENT OUTSIDE THE DEPARTMENT OF DEFENSE WITH TWO EXCEPTIONS, NEITHER OF WHICH IS APPLICABLE HERE. IT IS REPORTED THAT IN ITS HASTE TO RELEASE THE AMENDMENT INFORMATION, THE DESC MESSAGE CENTER OVERLOOKED THE CONTRACTING OFFICER'S REQUEST TO SEND SEPARATE TELEGRAMS TO THE TWO KNOWN BIDDERS, YOUR FIRM AND EIMAC, AND INSTEAD SENT TO EACH AN AMENDMENT MESSAGE CONTAINING THE NAMES OF BOTH. YOUR FIRM, WHILE ADMITTING THAT THE OVERSIGHT WAS AN "INADVERTENT" ONE, NEVERTHELESS ALLEGES THAT PREJUDICE TO YOUR CONCERN RESULTED BECAUSE EIMAC, THE SUCCESSFUL BIDDER, WAS INFORMED WHO ITS COMPETITION WAS ON IFB -594. THE RECORD DISCLOSES THAT YOUR FIRM AND EIMAC WERE THE ONLY TWO BIDDERS SUBMITTING BIDS IN RESPONSE TO INVITATION FOR BIDS NO. DSA 9-65-248, COVERING A PREVIOUS PROCUREMENT OF THE SAME TYPE OF TUBE AS REQUIRED BY THE SUBJECT INVITATION FOR BIDS. IS NOT APPARENT HOW YOUR FIRM WAS PREJUDICED BY THE DISCLOSURE TO EIMAC THAT YOUR FIRM WAS A BIDDER UNDER IFB -594 SINCE EIMAC COULD HAVE BY REFERENCE TO THE ABSTRACT OF BIDS FOR IFB -248, WHICH WAS PUBLIC INFORMATION, LEARNED THAT YOUR FIRM WAS INTERESTED IN BIDDING ON THAT TYPE OF TUBE. WHILE IT APPEARS THAT THERE WAS AN INADVERTENT VIOLATION OF AN ARMED SERVICES PROCUREMENT OPINION THAT SUCH VIOLATION MAY NOT BE ACCEPTED AS A GROUND FOR CANCELLATION OF THE AWARD TO EIMAC.