B-159694, JAN. 9, 1967

B-159694: Jan 9, 1967

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VOIT AND OSANN: REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 15. THE SPECTROMETER SYSTEM WAS TO HAVE . THIS WAS DESIGNATED AS NO. 3 IN THE LIST OF REQUIRED COMPONENTS. THE REQUIREMENTS FOR THIS COMPONENT ARE DETAILED IN THE SPECIFICATIONS UNDER THE NUMBER AND HEADING "3. THE SPECIFICATIONS ALSO PROVIDED THAT THE SPECTROMETER SYSTEM WAS TO HAVE "AN AUTOMATIC EXTERNAL STANDARD QUENCH CORRECTION SYSTEM.'. THIS WAS DESIGNATED AS NO. 9 IN THE LIST OF REQUIRED COMPONENTS. THE SPECIFICATIONS STATED: "-SHALL ENABLE SIMULTANEOUS CHANNEL RATION AND EXTERNAL STANDARD QUENCH CORRECTION USING SAME CHANNELS IN WHICH SAMPLE IS COUNTED.'. PROSPECTIVE BIDDERS WERE ADVISED IN CLAUSE 4 OF THE "ADDITIONAL PROVISIONS FOR NIH DEFINITE QUANTITY SUPPLY CONTRACTS" (FORM NIH-361 2.

B-159694, JAN. 9, 1967

TO WOLFE, HUBBARD, VOIT AND OSANN:

REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 15, 1966, AND SUBSEQUENT CORRESPONDENCE, PROTESTING ON BEHALF OF PACKARD INSTRUMENT COMPANY, INC., AGAINST THE AWARD OF A CONTRACT TO ANOTHER CONCERN UNDER INVITATION NO. 365-6-6-66, ISSUED BY THE NATIONAL INSTITUTES OF HEALTH (NIH), PUBLIC HEALTH SERVICE (PHS), DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW).

THE INVITATION REQUESTED BIDS, TO BE OPENED JUNE 10, 1966, FOR FURNISHING, F.O.B. NATIONAL INSTITUTES OF HEALTH, BETHESDA, MARYLAND, FOUR, EACH,"COUNTING SYSTEM, LIQUID SCINTILLATION, AUTOMATIC CONTROLLED TEMPRATURE * * * MODEL 6860 OF NUCLEAR CHICAGO CORPORATION, OR EQUAL, IN ACCORDANCE WITH SPECIFICATIONS HEREIN.' ITEM NO. 1 OF THE INVITATION CALLED FOR TWO SUCH SYSTEMS WITH LISTER READOUT AND ITEM NO. 2 CALLED FOR TWO SUCH SYSTEMS WITH IBM TYPEWRITER READOUT.

THE SPECIFICATIONS PROVIDED THAT, AMONG OTHER COMPONENTS, THE SPECTROMETER SYSTEM WAS TO HAVE ,THREE INDEPENDENT PULSE HEIGHT ANALYZERS (OTHERWISE REFERRED TO IN THE SPECIFICATIONS AS ,CHANNELS") WITH INDEPENDENT ATTENUATORS.' THIS WAS DESIGNATED AS NO. 3 IN THE LIST OF REQUIRED COMPONENTS, AND THE REQUIREMENTS FOR THIS COMPONENT ARE DETAILED IN THE SPECIFICATIONS UNDER THE NUMBER AND HEADING "3. THREE INDEPENDENT PULSE HEIGHT ANALYZERS.'

THE SPECIFICATIONS ALSO PROVIDED THAT THE SPECTROMETER SYSTEM WAS TO HAVE "AN AUTOMATIC EXTERNAL STANDARD QUENCH CORRECTION SYSTEM.' THIS WAS DESIGNATED AS NO. 9 IN THE LIST OF REQUIRED COMPONENTS, AND IN DETAILING THE REQUIREMENTS OF THIS COMPONENT UNDER THE NUMBER AND HEADING "9. AUTOMATIC EXTERNAL STANDARD SYSTEM.' THE SPECIFICATIONS STATED:

"-SHALL ENABLE SIMULTANEOUS CHANNEL RATION AND EXTERNAL STANDARD QUENCH CORRECTION USING SAME CHANNELS IN WHICH SAMPLE IS COUNTED.'

PROSPECTIVE BIDDERS WERE ADVISED IN CLAUSE 4 OF THE "ADDITIONAL PROVISIONS FOR NIH DEFINITE QUANTITY SUPPLY CONTRACTS" (FORM NIH-361 2, REV. 6-65), ATTACHED TO THE INVITATION, THAT WHERE ITEMS CALLED FOR BY THE INVITATION HAD BEEN IDENTIFIED IN THE SCHEDULES BY A "BRAND NAME OR QUAL" DESCRIPTION, SUCH IDENTIFICATION WAS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND WAS TO INDICATE THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WOULD BE SATISFACTORY, AND BIDS OFFERING "EQUAL" PRODUCTS WOULD BE CONSIDERED FOR AWARD IF SUCH PRODUCTS WERE CLEARLY IDENTIFIED IN THE BIDS AND WERE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE INVITATION. THE BIDDER WAS REQUIRED TO FURNISH AS A PART OF HIS BID ALL DESCRIPTIVE MATERIAL (SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER INFORMATION) NECESSARY FOR THE PURCHASING ACTIVITY TO (I) DETERMINE WHETHER THE PRODUCTS OFFERED MET THE REQUIREMENTS OF THE INVITATION FOR BIDS AND (II) ESTABLISH EXACTLY WHAT THE BIDDER PROPOSED TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD.

IN ITS BID DATED JUNE 3, 1966, PACKARD INSTRUMENT COMPANY, INC. (HEREAFTER REFERRED TO AS PACKARD), OFFERED TO FURNISH ITS MODEL A 3375-22 UNDER ITEM NO. 1, AT THE UNIT PRICE OF $14,065.50 FOR EACH OF THE TWO UNITS INVOLVED, AND ITS MODEL A-3375-20 UNDER ITEM NO. 2, AT THE UNIT PRICE OF $14,565.40 FOR EACH OF THE TWO UNITS DESCRIBED UNDER THAT ITEM. AFTER GIVING CONSIDERATION TO QUANTITY DISCOUNT OF 3 PERCENT ON 3 OR MORE INSTRUMENTS AND TO PROMPT PAYMENT DISCOUNT OF 1 PERCENT OFFERED BY PACKARD, ITS NET AGGREGATE BID CAME TO $54,988.31.

WITH ITS BID, PACKARD SUBMITTED DESCRIPTIVE MATERIAL IN THE FORM OF BULLETIN 1057B, WHICH CONTAINED, AMONG OTHER THINGS, A VIEW OF THE OPERATING CONTROL PANEL OF PACKARD'S "TRI-CARB SCINTILLATION SPECTROMETER," MODEL 3375, WITH THE FOLLOWING INFORMATION APPEARING THEREUNDER IN BOLD-FACED TYPE:

"THREE-PLUS-TWO

"PATENTED, THREE COMPLETELY SEPARATE CHANNELS OF PULSE HEIGHT ANALYSIS, EACH WITH PRECISELY ADJUSTABLE LINEAR AMPLIFICATION AND CONTINUOUSLY VARIABLE DISCRIMINATION LEVELS . . .

PLUS TWO ADDITIONAL CHANNELS PROVIDED EXCLUSIVELY FOR AUTOMATIC EXTERNAL STANDARDIZATION.'

PACKARD'S THREE CHANNELS OF PULSE HEIGHT ANALYSIS ARE DESIGNATED ON THE CONTROL PANEL SHOWN IN THE BULLETIN BY COLOR-CODES OF RED, GREEN, AND BLUE, RESPECTIVELY.

ATTACHED TO THE BULLETIN WERE EIGHT PAGES OF PRINTED SPECIFICATIONS APPLICABLE TO PACKARD MODEL 3375, WHEREIN IT WAS STATED:

"5. CHANNELS

SHALL PROVIDE FIVE COMPLETELY INDEPENDENT CHANNELS, THREE OF WHICH SHALL BE AVAILABLE FOR THE SOLE USE OF SAMPLE COUNTING OR OPTIMAL SAMPLE CHANNELS RATIO DETERMINATION AND TWO INTERNAL FACTORY PRESENT CHANNELS FOR OPTIMAL DETERMINATION OF EITHER EXTERNAL STANDARD GROSS COUNTS OR RATIO OF EXTERNAL STANDARD COUNTS.'

ALSO SUBMITTED AS A PART OF THE BID WAS A LETTER DATED MAY 6, 1966, ADDRESSED TO THE PURCHASING ACTIVITY, IN WHICH PACKARD SET FORTH THE SPECIFICATIONS OF THE MODELS OFFERED AS THEY WERE DEEMED TO RELATE TO THE SPECIFICATIONS CONTAINED IN THE INVITATION. THE LETTER, IN REFERRING TO COMPONENT 9 OF THE REQUIRED COMPONENTS OF THE SPECTROMETER SYSTEM AND THE PARTICULAR REQUIREMENT THEREFOR SET OUT ABOVE, AS WELL AS TO THE "OVERALL SYSTEM REQUIREMENTS" SET FORTH ON PAGE 8 OF THE INVITATION, STATED:

"9. AUTOMATIC EXTERNAL STANDARDIZATION

"D. EXCEEDS; PROVIDES FIVE CHANNELS INSTEAD OF THREE WHICH PERMITS UTILIZATION OF THREE SAMPLE CHANNELS FOR OPTIMUM SAMPLE COUNTING AND CHANNEL RATIO OF SAMPLE COUNTS. OPTIMUM RATIOS OF EXTERNAL STANDARDIZATION IS PROVIDED IN THEIR OWN TWO CHANNELS.

"OVERALL SYSTEM REQUIREMENTS

"OUR SYSTEM A-3375-22 DIFFERS FROM A-3375-00 IN THAT IT PROVIDES A DIGITAL, HIGH SPEED PRINTER AND DELETES THE TWO PUSHBUTTON SELECTIONS OF SINGLE AND DOUBLE LABEL COUNTING CONDITIONS; DELETES DISPLAY AND PRINT-OUT OF MINIMUM STANDARD DEVIATION; DELETES DISPLAY ONLY OF COUNTS PER MINUTE. THE ITEMS DELETED ARE NOT REQUESTED IN YOUR INVITATION. OUR SYSTEM A-3375 -22 MEETS OR EXCEEDS ALL SPECIFICATION OF THE MODEL 6860/LISTER.

"OUR SYSTEM A-3375-20 DIFFERS FROM A-3375-22 ONLY IN THAT AN IBM SELECTRIC TYPEWRITER WITH AUTOMATIC PAPER FEED IS SUPPLIED IN PLACE OF THE DIGITAL LISTER. OUR SYSTEM A-3375-20 MEETS OR EXCEEDS ALL SPECIFICATIONS OF THE MODEL 6860/TYPEWRITER.'

THREE OTHER BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION, TWO FROM BECKMAN INSTRUMENTS, C., IN THE NET AGGREGATE AMOUNTS OF $52,725 AND $55,005, RESPECTIVELY, AND ONE FROM NUCLEAR CHICAGO CORPORATION, IN THE AGGREGATE AMOUNT OF $55,820.32. THE CONTRACT WAS AWARDED TO NUCLEAR CHICAGO CORPORATION (HEREAFTER REFERRED TO AS N-C) ON JUNE 29, 1966, THE BIDS OF BECKMAN INSTRUMENTS, INC., AND PACKARD'S BID HAVING BEEN REJECTED AS NONRESPONSIVE TO THE INVITATION.

IN HIS LETTER OF JULY 6, 1966, THE CONTRACTING OFFICER ADVISED PACKARD THAT ITS BID HAD BEEN REJECTED BECAUSE THE INSTRUMENTS WHICH IT PROPOSED TO FURNISH PROVIDED FIVE CHANNELS, THREE FOR SAMPLE COUNTING AND CHANNEL RATIO OF SAMPLE COUNTS AND TWO FOR RATIOS OF EXTERNAL STANDARDIZATION, WHEREAS INSTRUMENTS PROVIDING THREE CHANNELS FOR SIMULTANEOUS CHANNELS RATIO AND EXTERNAL STANDARD QUENCH CORRECTION, USING THE SAME CHANNELS IN WHICH THE SAMPLE IS COUNTED, WERE SPECIFIED AND REQUIRED.

IN YOUR LETTER OF JULY 19, 1966, AS SUPPLEMENTED BY LETTER OF AUGUST 2, 1966, YOU CORRECTLY POINT OUT THAT THE SPECIFICATIONS CONTAINED IN THE INVITATION DO NOT SPECIFY THAT THE INSTRUMENTS HAVE ONLY THREE CHANNELS; THAT THERE IS NO DISPUTE AS TO THE FACT PACKARD'S INSTRUMENT PERFORMS SIMULTANEOUS CHANNEL RATIO QUENCH CORRECTION USING THE SAME CHANNELS IN WHICH THE SAMPLE IS COUNTED; AND THAT THE ONLY PERTINENT ISSUE FOR RESOLUTION IN DETERMINING WHETHER PACKARD'S BID WAS RESPONSIVE IS WHETHER ITS INSTRUMENT PERFORMS "EXTERNAL STANDARD QUENCH CORRECTION USING SAME CHANNELS IN WHICH SAMPLE IS COUNTED.' IN CONTENDING IN YOUR LETTER OF JULY 19, 1966, THAT PACKARD'S INSTRUMENT DOES MEET THIS REQUIREMENT OF THE SPECIFICATIONS YOU STATE:

"IN THE PACKARD SYSTEMS, THERE ARE TWO SPECIAL COUNTING CHANNELS (IN ADDITION TO THE RED, GREEN, AND BLUE CHANNELS) IN WHICH COUNTS ARE RECORDED FOR THE PURPOSE OF PROVIDING EXTERNAL STANDARD QUENCH CORRECTION. IT IS THUS CORRECT THAT PACKARD PRODUCTS HAVE A TOTAL OF FIVE CHANNELS WHEREAS THE NUCLEAR-CHICAGO HAVE ONLY THREE CHANNELS.

"HOWEVER, IN PERFORMING THE EXTERNAL STANDARD QUENCH CORRECTION, THE PACKARD SYSTEMS PERFORM TWO SEPARATE COUNTS IN THE SPECIAL COUNTING CHANNELS ON EACH SAMPLE VIAL. ONE SUCH COUNT IS MADE WITH THE EXTERNAL SOURCE WITHDRAWN AND INOPERATIVE, SO THAT THE SCINTILLATIONS IN THE SAMPLE VIAL RESULT ONLY FROM THE ISOTOPE INSIDE THE SAMPLE. IN OTHER WORDS, THE "SAMPLE IS COUNTED" ALONE IN THESE SPECIAL CHANNELS DURING ONE COUNTING PERIOD. ANOTHER COUNT IS MADE IN THESE SPECIAL CHANNELS WITH THE EXTERNAL STANDARD SOURCE IN AN OPERATIVE POSITION, SO THAT THE COUNTED SCINTILLATIONS RESULT FROM THE ISOTOPE IN THE SAMPLE AND THE RADIATION FROM THE EXTERNAL SOURCE. THE "SAMPLE ALONE" COUNT IS SUBTRACTED FROM THE "SAMPLE PLUS STANDARD" COUNT TO ARRIVE AT A NET COUNT RESULTING FROM THE EXTERNAL SOURCE ALONE. AND, THE RATIO OF THE LATTER NUMBERS FOR THE TWO SPECIAL COUNTING CHANNELS IS COMPUTED AND PRINTED FOR THE PURPOSE OF QUENCH CORRECTION.

"THE POINT TO BE OBSERVED IS THAT THE SAME TWO AUXILIARY CHANNELS ARE USED TO BOTH COUNT THE SAMPLE ALONE, AND TO COUNT THE SAMPLE PLUS THE EXTERNAL SOURCE IN ORDER TO PERFORM EXTERNAL STANDARD QUENCH CORRECTION. THE WORDING OF THE SPECIFICATION IN SAYING THAT THE SYSTEM SHALL PROVIDE "EXTERNAL STANDARD QUENCH CORRECTION USING SAME CHANNELS IN WHICH THE SAMPLE IS COUNTED" IS FULLY SATISFIED.'

MOREOVER, PACKARD CONTENDS THAT THE FACT THE PURCHASING ACTIVITY HERE INVOLVED ISSUED ANOTHER INVITATION ON JUNE 2, 1966 (IFB NO. 461-6 17-66), REQUESTING BIDS FOR FURNISHING, UNDER ITEM NO. 2 THEREOF, TWO, EACH,"SPECTROMETER SYSTEM, LIQUID SCINTILLATION, AUTOMATIC, 5-CHANNEL, 200 SAMPLE CAPACITY, REFRIGERATED WITH DUAL EXTERNAL STANDARDIZATION,"ON LINE" ELECTRONIC COMPUTATION, NORMALIZATION, PUSH BUTTON OPERATION AND COUNTING MODES * * * MODEL 3375 OF PACKARD INSTRUMENT O., INC., OR EQUAL," MAKES ANY ARGUMENT THAT THE PACKARD INSTRUMENT FAILS TO SATISFY THE MINIMUM NEEDS OF NIH UNTENABLE.

ACCORDINGLY, PACKARD CONTENDS THAT THE AWARD OF THE CONTRACT TO N-C SHOULD BE SET ASIDE AS ILLEGAL, AND THAT PACKARD SHOULD BE AWARDED THE CONTRACT AS THE LOWEST, FULLY RESPONSIVE, RESPONSIBLE BIDDER.

YOUR LETTERS OF JULY 19 AND AUGUST 2, 1966, WITH ATTACHMENTS, WERE TRANSMITTED TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, WITH A REQUEST FOR A COMPLETE REPORT ON PACKARD'S PROTEST. IN RESPONSE TO OUR REQUEST, THE ASSISTANT SECRETARY FOR ADMINISTRATION SUPPLIED US WITH A STATEMENT SUBMITTED BY THE CONTRACTING OFFICER WITH RESPECT TO THE PROTEST, A MEMORANDUM DATED SEPTEMBER 27, 1966, PREPARED BY DR. HERBERT A. SOBER, CHIEF, LABORATORY OF BIOCHEMISTRY, PHS, AND A TECHNICAL ANALYSIS ENTITLED "PACKARD VS. N-C CHANNELS RATIO," PREPARED BY DR. J. D. DAVIDSON OF THE LABORATORY OF CHEMICAL PHARMACOLOGY, PHS, ON AUGUST 8, 1966, IN REGARD TO THE ISSUE INVOLVED.

RELATIVE TO THE REASONS WHY PACKARD'S INSTRUMENT WAS DETERMINED NOT TO BE THE EQUAL OF N-C'S MODEL 6860, THE CONTRACTING OFFICER STATES:

"* * * THE NUCLEAR-CHICAGO INSTRUMENT COMPRISES THREE SEPARATE IDENTICAL CHANNELS OF PULSE HEIGHT ANALYSIS WITH PULSE SUMMATION ON EACH CHANNEL AND PERMITS QUENCH DETERMINATION BY EXTERNAL STANDARDIZATION OR CHANNELS RATIO ON THE SAME CHANNELS IN WHICH ISOTOPE IS COUNTED. THE EXTERNAL STANDARD CHANNELS RATIO QUENCH CORRECTION DATA IS RECORDED USING TWO OF THE BASIC NO. 1, 2, OR 3 CHANNELS PROVIDED IN THE INSTRUMENT FOR SAMPLE DATA COLLECTION. THUS, THE COUNTS ARISING FROM THE EXTERNAL STANDARD ARE SIZED AND TALLIED BY THE SELF-SAME ELECTRONIC CIRCUITRY THAT DOES THIS FOR THE SAMPLES' INTRINSIC RADIOACTIVITY.

"THIS IS NOT THE CASE WITH THE PACKARD INSTRUMENT WHICH PROVIDES THREE COMPLETELY SEPARATE CHANNELS OF PULSE HEIGHT ANALYSIS, PLUS TWO ADDITIONAL CHANNELS PROVIDED EXCLUSIVELY FOR AUTOMATIC EXTERNAL STANDARDIZATION. THE PACKARD EQUIPMENT, INDEPENDENCE OF THE CHANNEL RATIO CHANNELS FROM THE REGULAR THREE COUNTING CHANNELS (RED, GREEN, AND BLUE) IS PROVIDED. THIS WAS DEEMED AN ADVANTAGE BY THE COMPANY SINCE IT PERMITTED FREE USE OF ANY SETTINGS OF THE RED, GREEN, AND BLUE CHANNELS FOR SAMPLE DATA ACQUISITION WITHOUT NEED TO PROVIDE SETTINGS WHOSE RATIO COULD ALSO BE USEFUL FOR CHANNELS RATIO WITH THE EXTERNAL STANDARD. THIS OBJECTIVE WAS ACCOMPLISHED BY PACKARD BY PROVIDING A 4TH AND 5TH COMPLETE CHANNEL TO BE USED FOR THE CHANNELS RATIO DATA PRODUCTION. THESE ARE ADVERTISED AS BEING "INTERNAL FACTORY PRE-SET" FOR OPTIONAL CHANNELS RATIO WORK. ALTHOUGH ARGUED OTHERWISE BY PACKARD, IT MUST BE OBVIOUS, HOWEVER, TO THE TECHNICALLY ORIENTED THAT RATIOS DEVELOPED IN THIS MANNER ARE NOT DEVELOPED IN THE "SAME CHANNELS IN WHICH THE SAMPLE IS COUNTED.' THUS, PACKARD'S SYSTEM IS DIFFERENT FROM THE NUCLEAR-CHICAGO MODEL 6860 CALLED FOR IN THE INVITATION. IT IS NOT EQUAL IN THE OPINION OF THE RESEARCHERS INVOLVED IN ALL MATERIAL RESPECTS SINCE IT CANNOT MONITOR AGAINST MALFUNCTION OF COMPONENTS IN TWO SAMPLE COUNTING CHANNELS WITH SUCH SAMPLE COUNTED THE WAY NUCLEAR-CHICAGO'S SYSTEM INHERENTLY DOES. THEREFORE, IN ORDER TO CERTIFY CORRECT PERFORMANCE OF THE RED, GREEN, OR BLUE CHANNELS IN THE PACKARD SYSTEM, THE INVESTIGATORS USING THE MACHINES WOULD HAVE TO INTRODUCE ADDITIONAL CONTROL PROCEDURES WHICH WERE UNACCEPTABLE AND REPRESENT A DISADVANTAGE FOR THE PERFORMANCE OF THE RESEARCH WORK TO BE UNDERTAKEN.'

IT THUS APPEARS FROM THE CONTRACTING OFFICER'S STATEMENT THAT THE REQUIREMENT THAT THE INSTRUMENTS BEING PROCURED PERFORM EXTERNAL STANDARD QUENCH CORRECTION USING THE SAME CHANNELS IN WHICH THE SAMPLE IS COUNTED WAS INCORPORATED IN THE SPECIFICATIONS BECAUSE AN INSTRUMENT USING THIS METHOD OF EXTERNAL STANDARD QUENCH CORRECTION WAS CONSIDERED MORE RELIABLE IN DETECTING ANY MALFUNCTION IN THE BASIC COUNTING CHANNELS DURING THE CONDUCT OF AN EXPERIMENT.

WITH RESPECT TO WHY THE PACKARD INSTRUMENT WAS PROCURED UNDER INVITATION NO. 461-6-17-66 IF IT WAS NOT CONSIDERED ADEQUATE TO MEET THE ESSENTIAL NEEDS OF NIH AT THE TIME THE INVITATION HERE INVOLVED WAS ISSUED, THE CONTRACTING OFFICER STATES:

"INTERPRETATION OF "MINIMUM NEEDS" AS IT CAN BE APPLIED TO THE SCIENTIFIC REQUIREMENTS OF NIH RESEARCHERS IS SUBJECT TO MANY VARIATIONS. THE INSTRUMENTATION NEEDS OF THE SCIENTIFIC COMMUNITY ARE ENTIRELY DEPENDENT UPON THE SCOPE, MAGNITUDE, AND, IN MANY CASES, THE INDIVIDUAL USER'S SCIENTIFIC APPROACH TO HIS RESEARCH PROBLEMS. AS A CONSEQUENCE, THE CONTRACTING OFFICER'S MAIN RELIANCE IS ON THE TECHNICAL CONSIDERATIONS GIVEN BY THE USERS AS TO THE RELATIVE MERITS OF THE MACHINES AND THE IMPACT ON THE INDIVIDUAL'S PROGRAM. IF IT IS THE USER'S OPINION THAT ONE BRAND MACHINE PRESENTS EXPLICIT TECHNICAL DIFFICULTIES IN HIS PLANNED APPROACH TO RESEARCH, HIS CONCLUSIONS CAN ONLY BE ACCEPTED BY THE CONTRACTING OFFICER IN THE ABSENCE OF INFORMATION TO THE CONTRARY. OTHER KNOWLEDGEABLE SCIENTISTS, AS WELL AS THE USERS, AGREED THAT THERE WAS SUBSTANTIALLY MORE OPPORTUNITY FOR "INSENSITIVITY TO MALFUNCTION" IN THE PACKARD EQUIPMENT. IN THE OPINION OF THE CONTRACTING OFFICER, THIS WAS SUFFICIENT EVIDENCE TO RULE THAT THE BID OF NUCLEAR-CHICAGO CORPORATION WAS THE ONLY BID RECEIVED OFFERING AN INSTRUMENT WHICH WOULD SATISFY THE "ESSENTIAL NEEDS" OF THE REQUISITIONING USERS. IT WAS THIS REQUIREMENT THAT WAS FORESEEN AND SPECIFICALLY SET OUT IN THE SPECIFICATIONS UNDER THE WORDING OF "SAME" CHANNELS. HOWEVER, WE COULD NOT CONCLUDE THAT THIS REQUIREMENT WOULD BE "RESTRICTIVE" IN ANY WAY SINCE, AS POINTED OUT EARLIER IN OUR COMMENTS, THE "STATE OF THE ART" IN LIQUID SCINTILLATION COUNTING EQUIPMENT IS CONSTANTLY BEING ADVANCED AND MORE COMPETITION IS ENTERING THE FIELD.'

DR. SOBER'S MEMORANDUM, WHICH IS ADDRESSED TO THE CONTRACTING OFFICER, SETS FORTH THE NATURE OF THE SCIENTIFIC PROBLEMS SOUGHT TO BE RESOLVED BY NIH (GIVING AS AN ILLUSTRATION THE PROBLEM OF DETERMINING THE MECHANISM OF ACTION OF A CHEMICAL COMPOUND (X) WHICH IS KNOWN TO CAUSE CANCER UPON INJECTION INTO RATS), THE MANNER IN WHICH TESTS LOOKING TO THE SOLUTION OF SUCH A PROBLEM ARE CONDUCTED WITH THE USE OF A LIQUID SCINTILLATION COUNTING SYSTEM, AND THE ELECTRONIC AND MECHANICAL PROCESSES BY WHICH SUCH A SYSTEM, OR INSTRUMENT, EVALUATES CHEMICAL COMPOUNDS FED INTO THE INSTRUMENT. INSOFAR AS PERTINENT HERE, THE MEMORANDUM STATES:

"THE DECISION TO SELECT THE NUCLEAR INSTRUMENT (OR EQUAL) WAS DICTATED BY THE FOLLOWING CONSIDERATIONS: A LOW LEVEL OF RADIOACTIVITY ANTICIPATED, THE SMALL AMOUNT OF MATERIAL AVAILABLE AND THE LARGE QUENCH CORRECTION EXPECTED.

"IN THE NUCLEAR INSTRUMENT THE QUENCH CORRECTION IS DERIVED BY THE USE OF THE EXTERNAL STANDARD IN THE SAME CHANNEL (A, B OR C) AS THAT USED FOR THE DEFINITIVE EXPERIMENTAL SAMPLE COUNT, I.E., THE SAME CHANNEL WHICH IS USED TO DETERMINE THE AMOUNT OF COMPOUND X PRESENT BY ITS RADIOACTIVITY. TOTAL GROSS UNCORRECTED COUNTS CAN BE OBTAINED FROM THE LISTER PRINT OUT FOR EACH CHANNEL USED.

"IN THE PACKARD INSTRUMENT, THE QUENCH CORRECTION IS DETERMINED IN 2 SPECIAL AUXILIARY CHANNELS WHICH IS FACTORY PRE-SET FOR THIS PURPOSE. THE DEFINITIVE EXPERIMENTAL COUNT, ON THE OTHER HAND, IS OBTAINED FROM THE RED, GREEN OR BLUE CHANNEL AND THE AMOUNT OF COMPOUND X IS DERIVED FROM THESE VALUES.

"IN THE PACKARD SET-UP, MALFUNCTION OF ONE OR BOTH OF THE SPECIAL AUXILIARY CHANNELS WOULD NOT BE DETECTED EXCEPT AS AN ALTERED AND ERRONEOUS QUENCH CORRECTION AND WOULD NOT CHECK THE PERFORMANCE OF THE RED, GREEN OR BLUE CHANNEL. CONVERSELY, MALFUNCTION OF THE RED, GREEN, OR BLUE CHANNEL WOULD NOT BE DETECTED BY THE USE OF THE EXTERNAL STANDARD, SINCE THIS IS ONLY COUNTED IN THE TWO SPECIAL AUXILIARY CHANNELS. CORRECT QUENCH CORRECTION AND PROPER FUNCTION OF THE RED, GREEN OR BLUE CHANNELS COULD BE CHECKED HOWEVER, BY INSTITUTING ADDITIONAL AND TIME-CONSUMING PROCEDURES, E.G., DIVIDING THE EXPERIMENTAL SAMPLE INTO 2 PARTS AND ADDING A STANDARD AMOUNT OF RADIOACTIVITY TO ONE PART, COUNTING BOTH PARTS IN THE RED, GREEN OR BLUE CHANNELS.

"FURTHERMORE, THE TWO SPECIAL AUXILIARY CHANNELS ARE FACTORY PRE-SET TO PROVIDE OPTIMAL EFFICIENCY FOR THEIR EXTERNAL STANDARD IN A PARTICULAR SCINTILLATION COCKTAIL. THESE FACTORY SETTINGS MAY NOT BE APPROPRIATE FOR THE SCINTILLATION COCKTAILS REQUIRED BY OUR EXPERIMENTAL MATERIALS. THE NUCLEAR INSTRUMENT IS NOT PRE-SET AND THE EXTERNAL STANDARD CAN BE COUNTED UNDER CONDITIONS SET BY THE INVESTIGATOR.'

IN THE TECHNICAL ANALYSIS ENTITLED "PACKARD VS. N-C CHANNELS RATIO," PREPARED BY DR. DAVIDSON, THE MANNER IN WHICH A LIQUID SCINTILLATION COUNTING SYSTEM OPERATES IS SET FORTH IN CONSIDERABLE DETAIL, AND IT IS STATED:

"GOING BACK TO PACKARD VS N-C, IN N-C EQUIPMENT THE EXTERNAL STANDARD CHANNELS RATIO QUENCH CORRECTION DATA IS RECORDED USING TWO OF THE BASIC NO. 1, 2 OR 3 (THE NUMBERS USED BY N-C IN DESIGNATING THE CHANNELS OF ITS INSTRUMENT) CHANNELS PROVIDED IN THE INSTRUMENT FOR SAMPLE DATA COLLECTION. THUS, THE COUNTS ARISING FROM THE EXTERNAL STANDARD ARE SIZED AND TALLIED BY THE SELF-SAME ELECTRONIC CIRCUITRY THAT DOES THIS FOR THE SAMPLES' INTRINSIC RADIOACTIVITY. ANY MALFUNCTION OF DISCRIMINATORS OR SCALERS MIGHT BE EXPECTED TO BECOME APPARENT AS AN ABNORMAL RATIO.

"IN THE PACKARD EQUIPMENT, IT WAS DESIRED TO PROVIDE INDEPENDENCE OF THE CHANNEL RATIO CHANNELS FROM THE REGULAR R (RED), G (GREEN) AND B (BLUE) COUNTING CHANNELS. THIS WAS DEEMED AN ADVANTAGE FOR MOST USERS SINCE IT PERMITTED FREE USE OF ANY SETTINGS OF THE R, G AND B CHANNELS FOR SAMPLE DATA ACQUISITION WITHOUT NEED TO PROVIDE SETTINGS WHOSE RATIO COULD ALSO BE USEFUL FOR CHANNELS RATIO WITH THE EXTERNAL STANDARD. THIS OBJECTIVE WAS ACCOMPLISHED BY PACKARD BY PROVIDING A 4TH AND 5TH COMPLETE CHANNEL TO BE USED FOR THE CHANNELS RATIO DATA PRODUCTION. THESE ARE ADVERTISED AS BEING "FACTORY SET" FOR OPTIMAL CHANNELS RATIO WORK. IT SEEMS OBVIOUS THAT RATIOS DEVELOPED IN THIS MANNER ARE NOT DEVELOPED IN THE "SAME CHANNELS IN WHICH SAMPLE IS COUNTED" IN THE SENSE THAT THEY WOULD BE INSENSITIVE TO MALFUNCTION OF THE DISCRIMINATORS AND SCALERS USED IN SAMPLE COUNTING. THE SIGNIFICANCE OF THIS IS UP TO THE USER TO DECIDE.

"* * * PACKARD'S CHANNELS 4 AND 5 ARE PERFORMING A FUNCTION CALLED FOR IN THE BID SPECIFICATIONS BUT DOING THIS IN A DIFFERENT MANNER THAN CALLED FOR WITH POSSIBLE SIGNIFICANCE. PACKARD'S SYSTEM IS DIFFERENT FROM N-C-S. IT CANNOT MONITOR AGAINST MALFUNCTION OF COMPONENTS IN TWO SAMPLE COUNTING CHANNELS WITH EACH SAMPLE COUNTED, THE WAY N-C'S SYSTEM INHERENTLY DOES. I TEND TO AGREE WITH PACKARD THAT HIS SYSTEM PROVIDES FOR BETTER RATIO DATA COLLECTION WITHOUT COMPROMISE OF THE THREE SAMPLE DATA CHANNELS AND WOULD ADD THAT THE PERFORMANCE OF THESE CAN BE SATISFACTORILY MONITORED BY INCLUDING ONE OR MORE STANDARD SAMPLES IN EACH RUN OF UNKNOWNS.'

IN YOUR LETTER OF OCTOBER 28, 1966, YOU MAINTAIN PACKARD'S POSITION THAT ITS INSTRUMENT MUST BE CONSIDERED AS PERFORMING "EXTERNAL STANDARD QUENCH CORRECTION USING SAME CHANNELS IN WHICH SAMPLE IS COUNTED" FOR THE REASONS INDICATED IN YOUR LETTER OF JULY 19, 1966, SUPRA. YOU CONTEND THAT NEITHER THE CONTRACTING OFFICER, DR. SOBER, NOR DR. DAVIDSON EXPRESSED DISAGREEMENT WITH "THIS INCONTROVERTIBLE FACT" IN THE DOCUMENTS REFERRED TO ABOVE.

IN SUPPORT OF PACKARD'S CONTENTION THAT ITS INSTRUMENT MEETS THIS REQUIREMENT OF THE SPECIFICATIONS, YOU SUBMITTED AN AFFIDAVIT EXECUTED BY DR. ARIEL G. SCHRODT, PACKARD'S SCIENTIFIC DIRECTOR, UNDER DATE OF OCTOBER 27, 1966, WHICH STATES IN PART:

"13. AS AN ALTERNATIVE PROCEDURE TO COMPENSATE FOR "QUENCHING," THE PACKARD PRODUCT INCLUDES TWO AUXILIARY CHANNELS (HEREIN CALLED CHANNELS 4 AND 5, FOR CONVENIENCE). IT IS ARRANGED TO FIRST COUNT IN THESE TWO CHANNELS PULSES DERIVED FROM SCINTILLATIONS OCCURRING IN A SAMPLE VIAL DUE TO BOTH THE ISOTOPE THEREIN AND AN EXTERNAL STANDARD SOURCE OF RADIATION MOVED TO A POSITION ADJACENT THE VIAL; TO THEN COUNT IN THESE TWO CHANNELS PULSES DERIVED FROM SCINTILLATIONS OCCURRING IN THE SAMPLE VIAL DUE TO THE ISOTOPE THEREIN ALONE; TO SUBTRACT THE SECOND-REGISTERED CPM (COUNTS PER MINUTE) FROM THE FIRST REGISTERED CPM; AND TO INDICATE THE RATIO OF SUCH NET CPM'S IN THESE TWO CHANNELS. THE RATIO IS A NUMBER WHICH IS APPLIED TO A PREVIOUSLY PREPARED CALIBRATION CURVE TO READ OFF AN EFFICIENCY CORRECTION FACTOR WHICH IS THEN DIVIDED INTO THE NET CPM REGISTERED IN ONE OF THE RED, GREEN OR BLUE CHANNELS TO CONVERT THE LATTER CPM INTO A NUMBER REPRESENTING DPM (DISINTEGRATIONS PER MINUTE). IN THIS MANNER, THE PACKARD SYSTEM PROVIDES WHAT IS KNOWN AS EXTERNAL STANDARD QUENCH CORRECTION.'

FURTHERMORE, YOU CONTEND THAT THE ONLY PRACTICALLY FEASIBLE WAY IN WHICH MALFUNCTION IN ANY CHANNEL OF EITHER THE PACKARD OR THE N-C SPECTROMETER SYSTEM CAN BE MONITORED AND BROUGHT TO THE ATTENTION OF A RESEARCHER OR OPERATOR OF THE EQUIPMENT IS TO EMPLOY ONE OR MORE STANDARD SAMPLES IN EACH RUN OF UNKNOWN SAMPLES, THE PROCEDURE REFERRED TO IN THE LAST SENTENCE OF THE QUOTE FROM DR. DAVIDSON'S MEMORANDUM, SUPRA. IN SUPPORT OF THIS CONTENTION, YOU QUOTE FROM DR. SCHRODT'S AFFIDAVIT AS FOLLOWS:

" "MALFUNCTION IN ANY CHANNEL WILL NOT BE MONITORED OR INDICATED BY THE NUCLEAR-CHICAGO SYSTEM BY THE DATA OBTAINED FROM COUNTING A SERIES OF UNKNOWN SAMPLES.' (AT END OF PARAGRAPH 19)

" "MALFUNCTION IN ANY CHANNEL WILL NOT BE MONITORED OR INDICATED BY THE PACKARD SYSTEM BY DATA OBTAINED FROM COUNTING A SERIES OF UNKNOWN SAMPLES.' (AT END OF PARAGRAPH 20)

" "THE ONLY WAY IN WHICH "MALFUNCTION" AND ERRONEOUS DATA MAY BE MONITORED OR DETECTED IN BOTH THE NUCLEAR-CHICAGO SYSTEM AND THE PACKARD SYSTEM IS THE SAME. IT INVOLVES INCLUDING ONE OR MORE STANDARD SAMPLES IN EACH GROUP OF UNKNOWN SAMPLES.' (BEGINNING OF PARAGRAPH 21)"

SINCE THE BIOGRAPHICAL INFORMATION GIVEN IN DR. SCHRODT'S AFFIDAVIT INDICATED THAT HE WAS EMINENTLY QUALIFIED TO GIVE AN EXPERT OPINION ON THE MATTERS DEALT WITH THEREIN, YOUR LETTER OF OCTOBER 28, TOGETHER WITH DR. SCHRODT'S AFFIDAVIT, WERE REFERRED TO HEW WITH THE REQUEST THAT WE BE FURNISHED WITH A SUPPLEMENTAL REPORT REGARDING THE CONTENTIONS AND MATTERS SET FORTH THEREIN. IN RESPONSE TO OUR REQUEST, HEW FURNISHED US WITH A MEMORANDUM FROM DR. J. D. DAVIDSON, CHIEF, DEPARTMENT OF NUCLEAR MEDICINE, PHS, NATIONAL INSTITUTES OF HEALTH, TO THE HEAD, PROCUREMENT SECTION, SUPPLY MANAGEMENT BRANCH, DATED NOVEMBER 9, 1966, WHICH IS, IN PERTINENT PART, AS OLLOWS:

"AS DESCRIBED IN MY "PRIMER" (THE TECHNICAL ANALYSIS ENTITLED "PACKARD VS. N-C CHANNELS RATIO," SUPRA) OF AUGUST 8, 1966, THE PACKARD INSTRUMENT DOES THE BASIC COUNTING OF A SAMPLE IN ITS RED, GREEN, AND/OR BLUE CHANNELS USING DISCRIMINATORS A-F. THE PACKARD INSTRUMENT COUNTS ITS EXTERNAL STANDARD IN CHANNELS "FOUR" AND "FIVE," ACCORDING TO COMPANY LITERATURE, INCLUDING DISCRIMINATORS "G" AND "H," WHICH ARE LOWER LEVEL DISCRIMINATORS THAT ARE FACTORY SET AND NOT NORMALLY VARIABLE BY THE USER. IT SEEMS TO ME THAT THESE CHANNELS FOUR AND FIVE ARE CLEARLY NOT THE "SAME CHANNELS IN WHICH SAMPLE IS COUNTED" IF ONE INTERPRETS "SAME" TO REFER TO THE RED, GREEN, AND BLUE CHANNELS USED TO ACCUMULATE THE NORMAL SAMPLE COUNT DATA. CHANNELS FOUR AND FIVE ARE NEITHER PHYSICALLY ONE AND THE SAME AS THE RED, GREEN, AND BLUE CHANNELS NOR, BECAUSE THEY ARE FACTORY SET AS TWO INTEGRAL CHANNELS WITH FIXED LOWER DISCRIMINATORS, ARE THEY SUBSTANTIVELY THE SAME AS THE RED, GREEN, AND BLUE CHANNELS WHOSE SETTINGS ARE FREELY VARIABLE BY THE USER. PACKARD'S LAWYERS AND DR. SCHRODT SEEK TO HAVE CHANNELS FOUR AND FIVE QUALIFY AS BEING THE "SAME CHANNELS IN WHICH SAMPLE IS COUNTED" BY POINTING OUT THAT THE SAMPLE INTRINSIC ACTIVITY IS COUNTED IN THESE CHANNELS AS WELL AS THE COUNTS INDUCED BY THE EXTERNAL STANDARD. TECHNICALLY THIS WOULD APPEAR TO MAKE CHANNELS FOUR AND FIVE QUALIFY UNDER THE PROVISIONS IN THE I.F.B.SPECIFICATION FROM A VERY LITERAL INTERPRETATION BUT ONE INVOLVING A DIFFERENT INTERPRETATION OF THE WORD "SAME" THAN THAT APPLIED TO IT WHEN INTERPRETING THAT THE FIRST PART OF THIS SPECIFICATION RELATING TO SIMULTANEOUS CHANNEL RATIO REQUIRED THE USE OF THE RED, GREEN, OR BLUE CHANNELS TO QUALIFY AS ,SAME.' THIS LAST POINT IS COVERED BY PACKARD'S LAWYERS OWN LETTER OF JULY 19, 1966, WHEREIN ON PAGE 6 THEY DEFINE THE RED, GREEN, AND BLUE CHANNELS AS BEING THE "SAME" CHANNELS WHEN USED FOR SAMPLE CHANNEL RATIOS. ON THE SAME PAGE OF THIS DOCUMENT THEY GO ON TO ADMIT TO THE EXISTENCE OF "TWO SPECIAL COUNTING CHANNELS," CONVENIENTLY DISMISSED THE RED, GREEN, AND BLUE CHANNELS, AND SAY THE SAMPLE IS COUNTED IN THESE (SPECIAL CHANNELS) AND THAT, THEREFORE, THESE QUALIFY AS "SAME.' "WITH REGARD TO THE EXTERNAL STANDARD "MONITORING" AGAINST MALFUNCTION IN THE REGULAR COUNTING CHANNELS, MY "PRIMER" SUGGESTS THAT IT (N-C'S INSTRUMENT) CAN AND DR. SCHRODT'S AFFIDAVIT STATES THAT IT CANNOT. IT IS MY BELIEF THAT WE ARE BOTH CORRECT DEPENDENT UPON THE TYPE OF SAMPLES THAT ARE BEING COUNTED. DR. SCHRODT IS ENTIRELY CORRECT THAT IN THE COUNTING OF A SERIES OF UNKNOWN SAMPLES IN WHICH VARIABLE DEGREES OF QUENCHING IS ANTICIPATED ABERRATION OF THE EXTERNAL STANDARD RATIO COULD RESULT FROM EITHER QUENCHING OR MALFUNCTION IN THE CASE OF ANY GIVEN SAMPLE COUNT AND IT WOULD BE IMPOSSIBLE TO TELL WHICH FACTOR WAS RESPONSIBLE. FROM MY POINT OF VIEW, AS A USER, I NORMALLY ATTEMPT TO PRODUCE SAMPLES WHICH HAVE EITHER NO QUENCHING OR A CONSISTENT DEGREE OF QUENCHING AND EMPLOY THE EXTERNAL STANDARD RATIO TO VERIFY THAT SUCH SAMPLE IS BEHAVING NORMALLY. IN THIS TYPE OF APPLICATION MALFUNCTION OF A SAMPLE COUNTING CHANNEL WOULD SHOW UP AS AN ABNORMAL RATIO IN THE NUCLEAR-CHICAGO INSTRUMENT AND NOT IN THE PACKARD.'

THE BIOGRAPHICAL INFORMATION FURNISHED BY HEW CONCERNING DR. DAVIDSON CONTAINS THE FOLLOWING EXCERPT FROM "WHO'S WHO IN ATOMS," 3RD ED., 1962, HARRAP RESEARCH PUBLICATION, LONDON:

"DAVIDSON, JACK DOUGAN, A.B. (PRINCETON), M.D.

(COLUMBIA). BORN 1918, EDUC.: PRINCETON AND

COLUMBIA UNIVS. ASST. PROF. MEDICINE, COLLEGE OF

PHYSICIANS AND SURGEONS, COLUMBIA UNIV., 1953-57;

SEN. INVESTIGATOR, NATIONAL CANCER INST., NATIONAL

INSTS. OF HEALTH, 1957-. SOCIETIES: AMERICAN ASSOC.

FOR CANCER RESEARCH; AMERICAN SOC. FOR PHARMACOLOGY

AND EXP. THERAPEUTICS; AMERICAN ASSOC. FOR THE ADVANCEMENT

OF SCIENCE (FELLOW).

NUCLEAR INTERESTS: BIOCHEMICAL AND MEDICAL USES OF

RADIOISOTOPES, TECHNIQUES AND INSTRUMENTATION OF

LIQUID SCINTILLATION COUNTING.

ADDRESS: NATIONAL CANCER INSTITUTE, NATIONAL INSTITUTES

OF HEALTH, BETHESDA 14, MARYLAND, U.S.A.'

INCLUDED IN A LIST OF 15 "PERTINENT PUBLICATIONS OR RADIOISOTOPES" OF WHICH DR. J. D. DAVIDSON IS SHOWN TO BE THE AUTHOR, OR CO-AUTHOR, FURNISHED US BY HEW ARE THE FOLLOWING:

"4. J. D. DAVIDSON AND P. FEIGELSON; PRACTICAL ASPECTS

OF INTERNAL-SAMPLE LIQUID-SCINTILLATION COUNTING.

INTERNATIONAL J. APPLIED RADIATION AND ISOTOPES.

2:1-18 (APRIL 1957).

"6. NATHAN, D.G.; DAVIDSON, J.D.; WAGGONER, JEANNE G.

AND BERLIN, N.I.; THE COUNTING OF BARIUM CARBONATE

IN A LIQUID SCINTILLATION SPECTROMETER. J.LAB. AND CLIN. MED.

52:915-917, 1958.

"7. J. D. DAVIDSON; SOME RECENT DEVELOPMENTS IN LIQUID

SCINTILLATION COUNTING OF BIOCHEMICAL SAMPLES,

PP. 232-238 IN: PROCEEDINGS OF NEW MEXICO UNIVERSITY CONFERENCE

ON ORGANIC SCINTILLATION DETECTORS, AUGUST 15-17, 1960,

ALBUQUERQUE, N.M. GOVERNMENT PRINTING OFFICE, WASHINGTON,

(U.S.A.E.C., OFFICE OF TECHNICAL INFORMATION, TID 7612).'

HEW ALSO FURNISHED AN AFFIDAVIT EXECUTED ON NOVEMBER 15, 1966, BY DR. LEON PROSKY, A RESEARCH CHEMIST IN THE DIVISION OF NUTRITION, BUREAU OF SCIENCE, UNITED STATES FOOD AND DRUG ADMINISTRATION (FDA), WHICH IS, IN PERTINENT PART, AS FOLLOWS:

"* * * THE TWO INSTRUMENTS UNDER CONSIDERATION, NAMELY, THE NUCLEAR CHICAGO CORP. MODEL 6860 AND THE PACKARD INSTRUMENT CO. MODEL A-3375, ARE BOTH EXCELLENT INSTRUMENTS CAPABLE OF CARRYING OUT THE DIVERSIFIED COUNTING REQUIREMENTS OF A RADIOCHEMICAL LABORATORY. THE SPECIFICATIONS OF THE IFB REQUIRED THAT THE SAMPLES AND EXTERNAL STANDARD BE COUNTED IN THE SAME CHANNELS. IN THE FIELD OF SCINTILLATION SPECTROMETERY THIS WOULD BE INTERPRETED TO MEAN THAT THE INVESTIGATOR DESIRES TO COUNT PULSES, IN TWO OF ITS CHANNELS, DERIVED FROM SCINTILLATIONS OCCURRING IN A SAMPLE VIAL DUE TO THE ISOTOPE THEREIN ALONE AND THEN TO COUNT DURING A SEPARATE TIME INTERVAL IN THOSE CHANNELS PULSES DERIVED FROM SCINTILLATIONS OCCURRING IN THE SAME VIAL DUE TO BOTH THE ISOTOPE THEREIN AND AN EXTERNAL SOURCE OF RADIATION MOVED TO A POSITION ADJACENT TO THE VIAL; TO SUBTRACT THE FIRST REGISTERED CMP FROM THE SECOND REGISTERED CPM; AND TO INDICATE THE RATIO OF THOSE TWO NET CPMS. THE RATIO IS A NUMBER WHICH IS APPLIED TO A PREVIOUSLY PREPARED CALIBRATION CURVE TO READ OFF AN EFFICIENCY CORRECTION FACTOR WHICH IS THEN DIVIDED INTO THE NET CPM IN ONE OF THE CHANNELS 1, 2 OR 3 TO CONVERT THOSE COUNTS INTO A NUMBER REPRESENTING DPM. THIS SORT OF COMPENSATION IS CALLED EXTERNAL STANDARD QUENCH CORRECTION.

"6. THE PACKARD USES AN ALTERNATIVE PROCEDURE TO COMPENSATE FOR QUENCHING. QUENCH CORRECTIONS ARE MADE USING AUXILIARY CHANNELS 4 AND 5 AND NOT IN THE THREE BASIC CHANNELS.

"7. THE QUESTION DOES NOT RESOLVE ITSELF IN DETERMINING WHICH OF THESE METHODS OF EXTERNAL QUENCHING CORRECTIONS IS BETTER BUT RATHER WHICH OF THE METHODS THE LABORATORY SCIENTIST FEELS BEST MEETS HIS NEEDS OR REQUIREMENTS.'

IN ITS LETTER TRANSMITTING THE TWO DOCUMENTS AND BIOGRAPHICAL INFORMATION TO US, HEW EXPLAINED THAT DR. PROSKY'S STATEMENT WAS REQUESTED BECAUSE HE UTILIZES THE TYPE OF EQUIPMENT HERE INVOLVED IN HIS RESEARCH WORK AT FDA.

SINCE THE SPECIFICATIONS IN THE PRESENT INSTANCE PROVIDED THAT THE SPECTROMETER SYSTEM WAS TO HAVE THREE INDEPENDENT PULSE HEIGHT ANALYZERS WHICH ARE OTHERWISE REFERRED TO THEREIN AS CHANNELS (ALTHOUGH ADMITTEDLY NOT LIMITING THE EQUIPMENT BEING PROCURED TO THREE CHANNELS), IT SEEMS REASONABLY CLEAR THAT THE WORDS "SAME CHANNELS," AS USED IN THE PHRASE "SHALL ENABLE * * * EXTERNAL STANDARD QUENCH CORRECTION USING SAME CHANNELS IN WHICH SAMPLE IS COUNTED," REFER TO THE CHANNELS USED TO ACCUMULATE THE NORMAL SAMPLE COUNT DATA, THE RED, GREEN AND BLUE CHANNELS IN THE PACKARD INSTRUMENT, FOR INSTANCE. MOREOVER, THE REASONS GIVEN IN THE ABOVE-QUOTED STATEMENT OF DR. DAVIDSON AND AFFIDAVIT OF DR. PROSKY AS TO WHY THE TWO CHANNELS INCORPORATED IN THE PACKARD INSTRUMENT TO PROVIDE EXTERNAL STANDARD QUENCH CORRECTION CANNOT BE CONSIDERED THE "SAME CHANNELS IN WHICH SAMPLE IS COUNTED" WITHIN THE MEANING OF THE SPECIFICATIONS SEEM SOUND.

WHILE THERE APPEARS TO BE A DISPUTE BETWEEN DR. SCHRODT, ON THE ONE HAND, AND DRS. SOBER AND DAVIDSON, ON THE OTHER, AS TO WHETHER A SPECTROMETER SYSTEM USING THE METHOD OF EXTERNAL STANDARD QUENCH CORRECTION EMPLOYED IN THE N-C INSTRUMENT IS MORE RELIABLE IN DETECTING ANY MALFUNCTION IN THE BASIC COUNTING CHANNELS DURING THE CONDUCT OF AN EXPERIMENT, IN THE ABSENCE OF ANY CONVINCING EVIDENCE TO THE CONTRARY WE MUST, OF NECESSITY, ACCEPT THE CONCLUSION OF THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE THAT IT DOES. 40 COMP. GEN. 294, 297; 17 ID. 554, 557.

ACCORDINGLY, WE MUST CONCLUDE THAT THE INSTRUMENT OFFERED BY PACKARD DID NOT COMPLY WITH A MATERIAL REQUIREMENT OF THE SPECIFICATIONS, AND THAT ITS BID THEREFORE WAS PROPERLY REJECTED.