B-159015, JUL. 6, 1966

B-159015: Jul 6, 1966

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TO SERVO CORPORATION OF AMERICA: FURTHER REFERENCE IS MADE TO A COPY OF YOUR LETTER OF APRIL 19. THE ORIGINAL OF WHICH WAS SENT TO MR. WAS ISSUED ON NOVEMBER 26. AMENDMENT NO. 2 TO THE INVITATION WAS ISSUED. THE FOLLOWING FOUR BIDS WERE RECEIVED AND WERE OPENED ON JANUARY 19. WAS DETERMINED TO BE NONRESPONSIVE TO THE INVITATION IN THAT IT FAILED TO INCLUDE WITH ITS BID ANY DESCRIPTIVE LITERATURE AS REQUIRED BY THE PROVISIONS OF AMENDMENT NO. 2 TO THE INVITATION. WAS TECHNICALLY REVIEWED AND IT WAS DETERMINED THAT YOUR BID DID NOT MEET THE SPECIFICATION REQUIREMENTS. BRL) WAS REQUESTED TO HAVE AN INDEPENDENT TECHNICAL REVIEW MADE BY APPROPRIATE PERSONNEL OF TBL. THE REQUESTED REVIEW WAS MADE BY A MEMBER OF EXTERIOR BALLISTICS LABORATORY (EBL) AND WAS FURNISHED IN A DETERMINATION AND FINDING DATED MARCH 30.

B-159015, JUL. 6, 1966

TO SERVO CORPORATION OF AMERICA:

FURTHER REFERENCE IS MADE TO A COPY OF YOUR LETTER OF APRIL 19, 1966, THE ORIGINAL OF WHICH WAS SENT TO MR. JAMES FULTON, CONTRACTING OFFICER, ABERDEEN PROVING GROUND, MARYLAND 21005, PROTESTING THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. AMC/X/18-001-66-152, TO ANY OTHER BIDDER.

THE INVITATION, CALLING FOR ONE EACH INFRARED MICROSCOPE IN ACCORDANCE WITH SPECIFICATIONS SET FORTH ON PAGES 11, 12 AND 13 OF THE INVITATION, WAS ISSUED ON NOVEMBER 26, 1965. AS A RESULT OF A WIRE FROM YOUR COMPANY, QUESTIONING CERTAIN OF THE SPECIFICATIONS, AMENDMENT NO. 2 TO THE INVITATION WAS ISSUED, CLARIFYING THE SPECIFICATION. THE FOLLOWING FOUR BIDS WERE RECEIVED AND WERE OPENED ON JANUARY 19, 1966:

CHART

1. SERVO CORPORATION OF AMERICA $23,823

2. QUANTA LABORATORIES, INC. 46,600

3. BARNES ENGINEERING COMPANY 42,398

4. ELECTRO OPTICAL INDUSTRIES, INC. 8,160

THE LOW BIDDER, ELECTRO OPTICAL INDUSTRIES, INC., WAS DETERMINED TO BE NONRESPONSIVE TO THE INVITATION IN THAT IT FAILED TO INCLUDE WITH ITS BID ANY DESCRIPTIVE LITERATURE AS REQUIRED BY THE PROVISIONS OF AMENDMENT NO. 2 TO THE INVITATION. THE NEXT LOW BID, THAT OF YOUR COMPANY, WAS TECHNICALLY REVIEWED AND IT WAS DETERMINED THAT YOUR BID DID NOT MEET THE SPECIFICATION REQUIREMENTS. BY WIRE DATED MARCH 4, 1966, YOUR COMPANY STATED THAT IT WISHED "TO RESTATE THAT OUR BID DID NOT TAKE EXCEPTION ON QUALIFICATION TO THE SUBJECT IFB.' BECAUSE OF THIS MESSAGE THE CHIEF, TERMINAL BALLISTICS LABORATORY, OF THE BALLISTICS RESEARCH LABORATORIES (TBL, BRL) WAS REQUESTED TO HAVE AN INDEPENDENT TECHNICAL REVIEW MADE BY APPROPRIATE PERSONNEL OF TBL, BRL, FOR THE PURPOSE OF ASSURING THAT THE BID SUBMITTED BY YOUR COMPANY DID OR DID NOT, IN FACT, MEET THE SPECIFICATIONS. THE REQUESTED REVIEW WAS MADE BY A MEMBER OF EXTERIOR BALLISTICS LABORATORY (EBL) AND WAS FURNISHED IN A DETERMINATION AND FINDING DATED MARCH 30, 1966. THIS REVIEW CONCLUDED THAT YOUR BID SHOULD BE REJECTED FOR FAILURE TO MEET THE INVITATION FOR BIDS SPECIFICATIONS. AWARD WAS THEREFORE MADE ON APRIL 11, 1966, TO BARNES ENGINEERING COMPANY UNDER CONTRACT NO. DA 18-001-AMC-1062 (X).

THE BASIS OF YOUR PROTEST AS SET FORTH IN YOUR LETTER DATED APRIL 19, 1966, IS THAT A PROCUREMENT DIVISION REPRESENTATIVE AT ABERDEEN PROVING GROUND HAD STATED THAT THE ABSTRACT FILED BY ARMY PERSONNEL WHO EVALUATED THE PROPOSALS GAVE ONLY ONE REASON FOR ELIMINATING YOUR COMPANY AS FOLLOWS:

"REJECTED BECAUSE SPECIFICATION STATES THAT THE OPTICS MUST NOT LIMIT WAVELENGTH RESPONSE OUT TO 25 MICRONS IN THE INFRARED. THIS IS CONSIDERED AN ESSENTIAL SPECIFICATION. BIDDER (SERVO) PROPOSED A BARIUM FLUORIDE DEWAR WINDOW WITH TRANSMISSION FROM VISIBLE TO 14 MICRONS. THIS WINDOW IS PART OF THE OPTICS AND CLEARLY LIMITS THE WAVELENGTH RESPONSE TO 14 MICRONS IN THE INFRARED.'

YOUR LETTER STATES, IN PERTINENT PART, AS FOLLOWS:

"THE BARIUM FLUORIDE WINDOW WE PROPOSED IS AN INTEGRAL PART OF THE DEWAR WHICH IN TURN IS AN INTEGRAL PART OF THE DETECTOR. THUS, THE BARIUM FLUORIDE WINDOW IS AN INTEGRAL PART OF THE DETECTOR AND NOT OF THE PRIMARY OPTICAL SYSTEM. OUR PRIMARY OPTICAL SYSTEM DOES NOT LIMIT THE WAVELENGTH RESPONSE IN THE VISIBLE SPECTRUM OR OUT TO 25 MICRONS IN ACCORDANCE WITH SPECIFICATION II.C.

"OUR PROPOSED DETECTOR, MERCURY-DOPED GERMANIUM, MEETS ALL OF THE REQUIREMENTS OF I.C.

"SINCE THE ARMY DOES NOT REQUIRE THAT THE DETECTOR BE SENSITIVE OUT TO 25 MICRONS BUT ONLY THAT THE OPTICS TRANSMIT TO 25 MICRONS, IT IS OBVIOUS THAT THE DETECTOR MUST BE REPLACED SHOULD THE ARMY DECIDE TO MAKE MEASUREMENTS BETWEEN 7 AND 25 MICRONS.'

THE ADMINISTRATIVE REPORT EFFECTIVELY ANSWERS THE STATEMENTS MADE IN YOUR PROTEST SETTING FORTH, IN PERTINENT PART, THAT:

"IT IS TRUE THAT THE SPECIFICATIONS REQUIRES DETECTOR RESPONSE TO WAVE LENGTHS FROM RED TO AT LEAST 7.5 MICRONS. IT IS ALSO TRUE THAT THE SPECIFICATION REQUIRES THAT THE OPTICS MUST NOT LIMIT THE WAVELENGTH RESPONSE IN THE VISIBLE SPECTRUM OR OUT TO 25 MICRONS IN THE INFRARED. ARE THEREFORE ASKING FOR A UNIT WHICH WILL GIVE BOTH OF THE REFERENCED FEATURES, THAT IS, DETECTOR RESPONSE AT LEAST TO 7.5 AND OPTICS TRANSMISSION OUT TO 25 MICRONS. SUCH AN ARRANGEMENT ALLOWS THE USE OF DETECTORS OF DIFFERENT TYPES AND CHARACTERISTICS WITHOUT HAVING TO CHANGE AN ENTIRE INTEGRAL ELEMENT. THIS PROVIDES INCREASED FLEXIBILITY OF THE EQUIPMENT FOR RESEARCH APPLICATIONS. THE SPECIFICATIONS WERE WRITTEN IN THIS MANNER TO COVER THE MINIMUM ESSENTIAL NEEDS OF THE GOVERNMENT.'

WITH REGARD TO THE BARIUM FLUORIDE WINDOW, IT IS POINTED OUT THAT THERE WAS NO SPECIFICATION BY THE ARMY THAT IT BE AN INTEGRAL AND INSEPARABLE PART OF THE DETECTOR. YOUR DESIGN, WHICH YOU INDICATE MAKES THE BARIUM FLUORIDE WINDOW UNDETACHABLE FROM THE DETECTOR, MAY RESULT IN ADDITIONAL NEEDLESS COST TO THE GOVERNMENT IN THE FUTURE. THIS IS WHAT THE SPECIFICATIONS GUARD AGAINST. IT IS THE CONSIDERED CONCLUSION OF THE ADMINISTRATIVE TECHNICAL REVIEWER THAT THE BARIUM FLUORIDE WINDOW IS AN OPTICAL ELEMENT ABOUT WHICH THE SPECIFICATIONS ARE CLEAR, THAT WHILE YOUR COMPANY MANUFACTURES AN INTEGRAL OPTICAL AND DETECTOR SYSTEM ALLOWING INTEGRAL SUBSTITUTION OF OPTICAL AND SENSING DEVICE, THE BRL SPECIFICATION REQUIREMENTS FOR THE BAND TRANSMISSION CHARACTERISTICS MAY NOT BE DISREGARDED. IT IS FURTHER REPORTED THAT IT WAS THE INTENT OF THE PROCUREMENT THAT THE OPTICAL SYSTEM HAVE THE RESPONSE REQUIRED BY THE PROCUREMENT SPECIFICATIONS AND ALLOW USE OF AN INDEPENDENT SENSING SYSTEM. SUCH AN ARRANGEMENT ALLOWS THE USE OF SENSING SYSTEMS OF DIFFERENT TYPES AND CHARACTERISTICS, WITHOUT MODIFICATION OF THE OPTICAL SYSTEM, THUS PROVING INCREASED FLEXIBILITY OF USE OF THE EQUIPMENT FOR RESEARCH APPLICATION AND ALLOWING GENERAL USE OF THE INSTRUMENT FOR SPECIALIZED RESEARCH APPLICATIONS. HENCE, THE USE OF THE DESIGN, WHEREIN THE OPTICAL AND SENSING SYSTEMS ARE INTEGRAL AS STATED IN YOUR PROTEST LETTER TO BE THE CHARACTERISTIC OF YOUR PROPOSED DEVICE, RESULTS IN AN UNRESPONSIVE BID AND ONE NOT IN CONSONANCE WITH THE AIM OF THE PROCUREMENT.

IT WAS FOUND THAT YOUR INSTRUMENT HAD A PERMANENTLY BUILT-IN DRAIN OF RADIANT ENERGY IN ITS OPTICAL PATH, THE FOUR REFLECTING MIRRORS IN THE VIEWING SYSTEM PLUS THE APERTURE IN ONE OF THE REFLECTING MIRRORS, RESULTING IN OPTICAL LOSSES. IT WAS ALSO FOUND THAT THE DEWAR WINDOW IS PART OF THE OPTICS AND CLEARLY LIMITS THE WAVELENGTH RESPONSE TO 14 MICRONS IN THE INFRARED, THUS NOT MEETING THE LONG WAVELENGTH REQUIREMENT OF THE SPECIFICATIONS. IT WAS ADMINISTRATIVELY CONSIDERED TO BE NOT IN THE INTEREST OF THE GOVERNMENT TO PURCHASE EQUIPMENT AT WHAT APPEARS TO BE A LOWER PRICE, NOT CONFORMING PRECISELY TO SPECIFICATION REQUIREMENTS AND WHICH WOULD REQUIRE CONSIDERABLE EXPENDITURE TO MAKE THE EQUIPMENT GENERALLY USEFUL FOR WIDE RANGE RESEARCH APPLICATIONS.

ARMED SERVICES PROCUREMENT REGULATION PARAGRAPH 2-404.2 (B) PROVIDES:

"/B) ANY BID WHICH DOES NOT CONFORM TO THE SPECIFICATIONS CONTAINED OR REFERENCED IN THE INVITATION FOR BIDS SHALL BE REJECTED UNLESS THE INVITATION AUTHORIZED THE SUBMISSION OF ALTERNATE BIDS AND THE SUPPLIES OFFERED AS ALTERNATES MEET THE REQUIREMENTS SPECIFIED IN THE INVITATION.'

SECTION 2305 (C), TITLE 10, U.S.C., PROVIDES, INTER ALIA, THAT AWARDS SHALL BE MADE WITH REASONABLE PROMPTNESS BY GIVING WRITTEN NOTICE TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE THE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED.

IT IS NOT OUR FUNCTION TO TECHNICALLY EVALUATE BIDS AND PROPOSALS, OR TO MAKE AN INDEPENDENT DETERMINATION IN THIS CASE AS TO WHETHER YOUR BID WAS IN COMPLIANCE WITH THE SPECIFICATIONS. SEE, GENERALLY, 17 COMP. GEN. 554; 19 ID. 587; 40 ID. 35. INDEED, WE ARE NOT EQUIPPED TO DO SO. IT DOES APPEAR, HOWEVER, THAT YOUR BID WAS EVALUATED IN ACCORDANCE WITH THE ESTABLISHED EVALUATION PROCEDURE, AND THAT ANOTHER FIRM WAS DULY SELECTED FOR AWARD UNDER THIS PROCEDURE. SEE 35 COMP. GEN. 174 AND 40 COMP. GEN. 132, 135.

THEREFORE, SINCE THERE IS NO EVIDENCE THAT THE ADMINISTRATIVE ACTION IN THIS CASE WAS ARBITRARY OR CAPRICIOUS, WE WILL NOT ATTEMPT TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING AGENCY NOR DO WE PERCEIVE ANY BASIS UPON WHICH WE COULD OBJECT TO THE AWARD TO A HIGHER BIDDER. AGENCIES OF THE GOVERNMENT ARE NOT REQUIRED TO MAKE PURCHASES OF EQUIPMENT NOT FULFILLING THEIR REQUIREMENTS SIMPLY BECAUSE A LOWER PRICE CAN BE OBTAINED IN THAT WAY.