B-158299, APR. 19, 1966

B-158299, APR. 19, 1966

TO TRYLON, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 6, 1966, WITH ENCLOSURES, AND SUBSEQUENT CORRESPONDENCE WHEREIN YOU PROTESTED AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER INVITATION FOR BIDS NO. 600 1004-65 ISSUED ON JUNE 25, 1965, BY THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON NAVY YARD, WASHINGTON, D.C.

THE SUBJECT INVITATION AS AMENDED CALLED FOR 31 INVERTED CONE HIGH FREQUENCY ANTENNAS, A PERMANENT TYPE OF RADIO ANTENNA TO FACILITATE LONG RANGE RADIO COMMUNICATION AT NAVAL COMMUNICATION SHORE STATIONS.

THE BIDS WERE OPENED ON NOVEMBER 3, 1965, IN ACCORDANCE WITH MODIFICATION NO. 5 TO THE INVITATION, AND YOUR BID PRICE OF $115,436 WAS FOUND TO BE THE LOWEST SUBMITTED. THE CONTRACTING OFFICER DETERMINED THAT YOUR BID, AS WELL AS THAT OF THE SECOND LOW BIDDER, HY GAIN ELECTRONICS CORPORATION OF LINCOLN, NEBRASKA, WAS NONRESPONSIVE FOR FAILURE OF THE DESCRIPTIVE LITERATURE SUBMITTED TO COMPLY WITH THE REQUIREMENTS OF THE INVITATION. FOLLOWING A DETERMINATION OF URGENCY BY THE PROCURING ACTIVITY, THE CONTRACTING OFFICER AWARDED THE CONTRACT ON JANUARY 25, 1966, TO THE THIRD LOWEST BIDDER, GRANGER ASSOCIATES OF PALO ALTO, CALIFORNIA.

THE INVITATION AS MODIFIED CALLED FOR ANTENNAS IN ACCORDANCE WITH PURCHASE DESCRIPTION, SERIAL 1460-342, AS REVISED SEPTEMBER 10, 1965, WITH CERTAIN MODIFICATIONS. THE PURCHASE DESCRIPTION DESCRIBED THE ANTENNA REQUIREMENT IN MORE OR LESS GENERAL TERMS; PARAGRAPH 3.2 SET OUT A LIST OF OVERALL GENERAL MAXIMUM AND MINIMUM DIMENSIONS FOR A COMPLETED ANTENNA STRUCTURE. HOWEVER, THE PURCHASE DESCRIPTION, AS MODIFIED, DID CONTAIN RIGID PERFORMANCE CRITERIA FOR THE ANTENNA WHICH WAS TO BE EVALUATED ON THE BASIS OF MODEL TESTING AND MATHEMATICAL ANALYSIS. PARAGRAPH 3.9.9 CALLED FOR THE AZIMUTH PLANE RADIATION PATTERN AND ANTENNA GAIN, PARAGRAPHS 3.9.6 AND 3.9.7, RESPECTIVELY, TO BE CALCULATED AND PLOTTED FROM THE DATA GAINED FROM PARAGRAPH 3.9.8, ANTENNA MODEL STUDY. PARAGRAPH 3.9.9 ALSO PROVIDED THAT CONFORMANCE WITH PARAGRAPH 3.9.2 AND 3.9.4 WAS TO BE SUBSTANTIATED BY AN ELECTRICAL ANALYSIS TO BE SUBMITTED WITH THE BID.

WE ARE ADVISED BY THE PROCUREMENT OFFICE THAT THE USE OF A PERFORMANCE TYPE SPECIFICATION COUPLED WITH THE DESCRIPTIVE LITERATURE REQUIREMENT WAS INTENDED TO BROADEN COMPETITION AMONG BIDDERS, WHO WERE PERMITTED TO BID EITHER ANTENNAS DESIGNED SPECIFICALLY FOR THIS CONTRACT OR CURRENT PRODUCTION ITEMS WHICH SATISFIED THE PERFORMANCE STANDARDS.

THE PARAGRAPH ON PAGE 3 OF THE INVITATION ENTITLED "REQUIREMENT FOR DESCRIPTIVE LITERATURE," PLAINLY INDICATES THE THE GOVERNMENT INTENDED THAT THIS DATA SHOULD BE MATERIAL. PART (B) OF THE PARAGRAPH STATES "FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID.'

THE FOLLOWING PARAGRAPH IDENTIFIED THE REQUIRED DESCRIPTIVE LITERATURE AS THE "LIST OF START-UP SPARES MAINTENANCE PROGRAM ELECTRICAL AND STRUCTURAL ANALYSIS AND RESULTS OF ANTENNA MODEL UDY.' THUS, BIDDERS WERE GIVEN FULL NOTICE OF THE NECESSITY FOR COMPLYING WITH PROVISION 3.9.8, THE MODEL STUDY AND THE CALCULATIONS DERIVED FROM THAT STUDY, AND THE FACT THAT NONCOMPLIANCE WOULD REQUIRE REJECTION OF THE BID.

THE CONTRACTING OFFICER, IN HIS REPORT FOUND THAT THE DATA YOU SUBMITTED WITH YOUR BID "WAS INADEQUATE TO DEMONSTRATE COMPLIANCE WITH PARA. 3.9.7 AND 3.9.4 OF THE PURCHASE DESCRIPTION.' ACCORDING TO THE REPORT A REVIEWING COMMITTEE COMPOSED OF TWO ELECTRICAL ENGINEERS, ONE STRUCTURAL ENGINEER, AND ONE REPRESENTATIVE OF THE OPERATING ACTIVITY, CONCURRED IN THE CONCLUSION, BECAUSE:

"* * * (A) LINEARITY OF THE MEASURING EQUIPMENT IS NOT SHOWN FOR THE GAIN MEASUREMENTS AND THE MEASUREMENTS ARE MEANINGLESS WITHOUT THIS INFORMATION, AND (B) IMPEDANCE VALUES ARE REQUIRED FOR EVALUATION OF VOLTAGE STANDING WAVE RATIO, WERE NOT NOT SHOWN IN ANY FORM, AND CANNOT BE DETERMINED FROM THE GRAPH SUBMITTED.'

THE CONTENTION CONTAINED IN YOUR LETTER TO THE NAVY PURCHASING OFFICE OF DECEMBER 29, 1965, PAGE 2, THAT "THE MATERIAL, IN THE FORM SUBMITTED, PERMITS ANALYSIS OF THE ELECTRICAL PERFORMANCE OF THE PROPOSED ANTENNAS AND DEMONSTRATES CONFORMANCE WITH THE ELECTRICAL PERFORMANCE SPECIFICATIONS OF PURCHASE DESCRIPTION SER. 1460-342, REV. B," IS DIRECTLY CONTRARY TO THE FINDINGS OF THE NAVY PURCHASING OFFICE.

WHETHER THE DESCRIPTIVE LITERATURE FURNISHED BY YOUR FIRM DEMONSTRATED THE CONFORMABILITY OF THE PRODUCT OFFERED TO THE PERFORMANCE SPECIFICATIONS IS CLEARLY A TECHNICAL MATTER. THE CONTRACTING OFFICER'S REPORT SHOWS THAT THE OPINIONS OF QUALIFIED ENGINEERING PERSONNEL WERE SOLICITED AND USED BY THE CONTRACTING OFFICER IN REACHING A CONCLUSION AS TO THE ADEQUACY OF YOUR DESCRIPTIVE LITERATURE. HAVING REGARD FOR THE WIDE DISCRETION VESTED IN THE CONTRACTING OFFICER IN THE DETERMINATION OF THE SUFFICIENCY OF INFORMATION REQUIRED TO BE FURNISHED FOR BID EVALUATION PURPOSES, WE CAN FIND NO BASIS FOR QUESTIONING HIS REJECTION OF YOUR BID. 43 COMP. GEN. 77, 80.

YOUR PROTEST AGAINST AWARD OF THIS CONTRACT TO GRANGER ASSOCIATES, THE THIRD LOWEST BIDDER, ON THE GROUNDS THAT ITS PROPOSED ANTENNA WILL NOT MEET THE SPECIFICATION REGARDING WIND, WIND AND ICE, AND SEISMIC LOADING OUTLINED IN APPENDIX A OF THE PURCHASE DESCRIPTION IN INCORRECT, FOR THE THREE CONDITIONS WERE NOT INTENDED TO BE CUMULATIVE. THE CONTRACTING OFFICER IN HIS ENCLOSURE NO. TO HIS REPORT DENIED THIS, SAYING THAT:

"APPENDIX A, TABLE I OF THE PURCHASE DESCRIPTION DOES NOT STATE THAT WIND AND ICE AND SEISMIC CONDITIONS WILL BE COMBINED, BUT SETS FORTH THREE INDIVIDUAL MAXIMUM FORCES. DEMONSTRATION THAT THE ANTENNAS OFFERED WILL WITHSTAND THE WORST OF THE THREE CONDITIONS IS CONSIDERED ADEQUATE PROOF OF EACH. A COMBINATION OF THE THREE FORCES, WHILE NOT IMPOSSIBLE, WOULD BE RARE AND IS NOT IN ACCORD WITH ACTUAL SERVICE CONDITIONS. * * *.'

WE CAN FIND NO REASON TO DISAGREE WITH THIS INTERPRETATION OF TABLE I OF APPENDIX A OF THE PURCHASE DESCRIPTION, FOR THERE APPEARS TO BE NO INDICATION ON THE FACE OF THE TABLE THAT THE THREE FORCES WERE TO BE TREATED CUMULATIVELY. THE DETERMINATION OF SUCH TECHNICAL PROBLEMS AS THE ABILITY OF ANTENNAS TO WITHSTAND WIND, WIND AND ICE, AND SEISMIC CONDITIONS, AND WHAT STANDARDS TO SET FOR JUDGING THESE CONDITIONS, ARE MATTERS PRIMARILY WITHIN THE ADMINISTRATIVE DISCRETION OF THE PROCURING AGENCY.

YOUR ALSO POINT OUT IN YOUR LETTER OF DECEMBER 29, 1965, THAT PARAGRAPH 3.9.8.3 OF THE PURCHASE DESCRIPTION PERMITS THE GOVERNMENT TO REQUEST MODEL MEASUREMENTS TO BE TAKEN AT ADDITIONAL TEST FREQUENCIES "FOR FURTHER EVALUATION OF THE PROPOSAL.' YOU STATE SUCH MEASUREMENTS WOULD ESTABLISH THAT YOUR ANTENNAS FULLY MEET THE REQUIREMENTS OF THE PROCUREMENT.

AS STATED ABOVE, YOUR BID, LACKING THE ELECTRICAL ANALYSIS ESSENTIAL TO DEMONSTRATE COMPLIANCE WITH PARAGRAPHS 3.9.4 AND 3.9.7, WAS NONRESPONSIVE. WHEN A BID IS NONRESPONSIVE UPON BID OPENING, IT IS A BASIC RULE OF THE LAW OF GOVERNMENT CONTRACTS THAT IT CANNOT BE MADE RESPONSIVE BY LATER MODIFICATION. THEREFOR, FURTHER MODEL STUDIES COULD NOT CURE YOUR BID. ALSO, PARAGRAPH 3.9.8.3 SPECIFIES THAT MEASUREMENTS ARE TO BE MADE OF "ADDITIONAL" FREQUENCIES, SO BY ITS VERY TERMS THIS PARAGRAPH CANNOT BE UTILIZED TO SHOW COMPLIANCE OF YOUR PRODUCT WITH THE ORIGINAL FREQUENCIES SPECIFIED FOR TESTING IN PARAGRAPHS 1.1.1, 1.1.2, AND 1.1.3.

YOUR REQUEST FOR A CERTIFICATE OF COMPETENCY REVIEW BY THE SMALL BUSINESS AGENCY IS NOT RELEVANT FOR YOUR BID WAS REJECTED AS NONRESPONSIVE TO THE INVITATION, WHICH REQUIRED PROOF THAT YOUR PRODUCT WOULD MEET STATED PERFORMANCE SPECIFICATIONS. THE CERTIFICATE OF COMPETENCY PROCEDURE IS DESIGNED TO GIVE BIDDERS WHO ARE REJECTED AS LACKING THE BASIC QUALIFICATIONS NECESSARY TO PRODUCE AN ACCEPTABLE PRODUCT, AN ASPECT OF RESPONSIBILITY, AN OPPORTUNITY TO HAVE THEIR FACILITIES INDEPENDENTLY EVALUATED BY THE SMALL BUSINESS ADMINISTRATION. THE QUESTION OF YOUR ABILITY AS A MANUFACTURER HAS NEVER BEEN RAISED; RATHER, YOUR BID WAS FOUND NOT RESPONSIVE TO THE TERMS OF THE INVITATION. THEREFORE, WE CAN FIND NO BASIS TO SUPPORT YOUR CONTENTION THAT YOUR FIRM BE GIVEN A CERTIFICATE OF COMPETENCY REVIEW IN THIS CASE.

A COPY OF OUR RELATED DECISION OF TODAY, B-158299, ADDRESSED TO HY GAIN ELECTRONICS CORPORATION IS ENCLOSED FOR YOUR INFORMATION.