B-160865, JUN. 5, 1967

B-160865: Jun 5, 1967

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WIENER AND SCHLEZINGER: REFERENCE IS MADE TO YOUR TELEGRAM DATED FEBRUARY 13. BE CANCELED ON THE GROUND THAT THE BID PACKAGE IS GROSSLY DEFECTIVE. BIDS WERE OPENED ON JANUARY 4. THIRTEEN RESPONSIVE BIDS WERE RECEIVED. THE LOW OVERALL BIDDER IS MACROMIN ELECTRONICS CORPORATION AND THE SECOND LOW OVERALL BIDDER IS SENTINEL. THE AMENDED IFB ADVISED BIDDERS THAT A PROCUREMENT MODEL WAS AVAILABLE FOR INSPECTION AT FORT MONMOUTH. THAT GOVERNMENT-FURNISHED DRAWINGS DID NOT CONFORM TO THE MODEL IN ALL RESPECTS AND THEREFORE WERE TO BE CORRECTED BY THE CONTRACTOR TO CONFORM TO THE MODEL WHERE NECESSARY. THE SPECIFICATION IS TO TAKE PRECEDENCE OVER THE MODEL AND THE DRAWINGS. THE MODEL IS TO TAKE PRECEDENCE OVER THE DRAWINGS.

B-160865, JUN. 5, 1967

TO WACHTEL, WIENER AND SCHLEZINGER:

REFERENCE IS MADE TO YOUR TELEGRAM DATED FEBRUARY 13, 1967, AND TO YOUR LETTER AND ENCLOSURES DATED MARCH 8, 1967, REQUESTING ON BEHALF OF SENTINEL ELECTRONICS, INC. (SENTINEL), THAT INVITATION FOR BIDS (IFB) NO. DAABO5-67-B-0882 ISSUED BY THE UNITED STATES ARMY ELECTRONICS COMMAND, PHILADELPHIA, PENNSYLVANIA, BE CANCELED ON THE GROUND THAT THE BID PACKAGE IS GROSSLY DEFECTIVE.

THE SUBJECT IFB, AS AMENDED, REQUESTED BIDS ON VARIOUS QUANTITIES OF ME- 26 ( ( (U MULTIMETERS TO BE CONSTRUCTED IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-M-55254/EL). BIDS WERE OPENED ON JANUARY 4, 1967, BUT TO DATE NO AWARD HAS BEEN MADE. THIRTEEN RESPONSIVE BIDS WERE RECEIVED. THE LOW OVERALL BIDDER IS MACROMIN ELECTRONICS CORPORATION AND THE SECOND LOW OVERALL BIDDER IS SENTINEL. IN ADDITION TO THE REQUIREMENT THAT THE MULTIMETERS BE CONSTRUCTED IN ACCORDANCE WITH MIL-M-55254/EL), THE AMENDED IFB ADVISED BIDDERS THAT A PROCUREMENT MODEL WAS AVAILABLE FOR INSPECTION AT FORT MONMOUTH, NEW JERSEY; THAT GOVERNMENT-FURNISHED DRAWINGS DID NOT CONFORM TO THE MODEL IN ALL RESPECTS AND THEREFORE WERE TO BE CORRECTED BY THE CONTRACTOR TO CONFORM TO THE MODEL WHERE NECESSARY; AND THAT IN THE EVENT OF DISCREPANCIES BETWEEN THE SPECIFICATION, PROCUREMENT MODEL AND THE GOVERNMENT-FURNISHED DRAWINGS, THE SPECIFICATION IS TO TAKE PRECEDENCE OVER THE MODEL AND THE DRAWINGS, AND THE MODEL IS TO TAKE PRECEDENCE OVER THE DRAWINGS.

YOU CONTEND THAT THE BID PACKAGE IS "GROSSLY DEFECTIVE, THUS PREVENTING MANUFACTURE OF THE ITEM/S) ACTUALLY REQUIRED BY THE GOVERNMENT, PREVENTING BIDDERS FROM COMPETING ON EQUAL TERMS, AND * * * SUBJECTING THE GOVERNMENT TO THE RISK OF COSTLY CHANGE ORDERS AFTER AWARD AND/OR THE RISK OF DAMAGES FOR BREACH OF CONTRACT.' IN SUBSTANTIATION OF THIS CONTENTION, YOU ALLEGE FIRST THAT SINCE THE REQUIRED MILITARY SPECIFICATION IS A PERFORMANCE SPECIFICATION, IT IS NECESSARY THAT BIDDERS OBTAIN NEEDED ADDITIONAL INFORMATION BY INSPECTING THE PROCUREMENT MODEL; THAT THE MODEL IS OF LITTLE HELP BECAUSE IT CANNOT BE DISASSEMBLED; AND THAT IT THEREFORE IS NECESSARY TO RELY ON THE GOVERNMENT-FURNISHED DRAWINGS, WHICH ARE INADEQUATE BECAUSE THEY REFER TO AN OLD MODEL OF THE MULTIMETER CURRENTLY BEING PROCURED. IN YOUR VIEW, A SUCCESSFUL BIDDER WOULD FIND, AFTER HAVING FOLLOWED THE OUTDATED DRAWINGS, THAT HIS PRODUCT WOULD NOT MEET THE REQUIRED PERFORMANCE SPECIFICATIONS. YOU SUGGEST THAT A CONTRACTOR IN THIS SITUATION WOULD BE SUCCESSFUL IN A SUIT AGAINST THE GOVERNMENT FOR BREACH OF CONTRACT OR AT LEAST IN OBTAINING A CHANGE ORDER AT ADDITIONAL COST TO THE GOVERNMENT. YOU MAINTAIN THAT THE FACT THAT BIDDERS WERE PUT ON NOTICE THAT THE SUCCESSFUL CONTRACTOR WOULD BE REQUIRED TO UPDATE THE DRAWINGS HAS NO EFFECT ON THE INADEQUACY OF THE BID PACKAGE BECAUSE THE DRAWINGS ARE THE "ULTIMATE SPECIFICATIONS" AND, AS SUCH, THE GOVERNMENT IMPLIEDLY WARRANTS THAT IF THEY ARE COMPLIED WITH, SATISFACTORY PERFORMANCE WILL RESULT. IN SUBSTANTIATION OF THIS CONTENTION, YOU CITE NORTH AMERICAN PHILIPS COMPANY V. UNITED STATES, 358 F.2D 980 (CT.CL. 1966).

YOU ALSO MAINTAIN THAT A PANEL METER WITH A PLUS OR MINUS 1 PERCENT ACCURACY, RATHER THAN THE PLUS OR MINUS 2 PERCENT REQUIRED BY THE GOVERNMENT, IS REQUIRED FOR THE PROPER FUNCTIONING OF THE EQUIPMENT; THAT WITHOUT THE PLUS OR MINUS 1 PERCENT ACCURACY REQUIREMENT, THE METER WILL NOT MEET THE TEST REQUIREMENTS CONTAINED ELSEWHERE IN THE SPECIFICATION; AND THAT A CONTRACT CHANGE ORDER WILL HAVE TO BE ISSUED TO ASSURE PLUS OR MINUS 1 PERCENT ACCURACY. YOU STATE THAT YOU REALIZED THE NECESSITY FOR THIS REQUIREMENT AND INCLUDED A MORE EXPENSIVE PLUS OR MINUS 1 PERCENT ACCURACY METER IN YOUR BID.

YOUR FINAL CONTENTION WITH REGARD TO THE PANEL METER IS THAT THE CURRENTLY REQUIRED MILITARY SPECIFICATION ALLOWS A 4 PERCENT DEVIATION AFTER EXPOSURE TO EXTREME TEMPERATURES, AND YET THE SPECIFICATION REQUIRES NOT MORE THAN A MAXIMUM 3 PERCENT DEVIATION IN THE END ITEM.

YOUR PROTEST CLOSES WITH A SUGGESTION THAT COMPLETE ENVIRONMENTAL TESTS BE PERFORMED BEFORE ANY AWARD FOR MULTIMETERS IS MADE INASMUCH AS ENVIRONMENTAL TESTS HAVE BEEN WAIVED IN THE PAST AND IT IS NOT KNOWN WHETHER THE COMPONENT PARTS OF THE MULTIMETER CAN WITHSTAND SUCH TESTS.

THE PROCUREMENT AGENCY HAS ADVISED THAT WHILE THE PROCUREMENT MODEL COULD NOT BE DISASSEMBLED, AS POINTED OUT BY YOU, THE DUST COVER OF THE MODEL WAS REMOVED AND THE AC PROBE, WHICH WAS THE MOST SIGNIFICANT CHANGE NOT REFLECTED IN THE GOVERNMENT-FURNISHED DRAWINGS, WAS DISASSEMBLED FOR DISPLAY PURPOSES. THUS, ACCORDING TO THE PROCUREMENT AGENCY,"ALL COMPONENTS AND STRUCTURES WERE COMPLETELY EXPOSED TO VIEW AND WERE CLEARLY VISIBLE TO ALL BIDDERS.' THE ADMINISTRATIVE REPORT ON THE PROTEST MENTIONS THAT NONE OF THE BIDDERS COMPLAINED WHILE VIEWING THE MODEL THAT IT RESTRICTED THEM FROM VIEWING ALL COMPONENTS NECESSARY FOR PREPARATION OF AN ACCURATE BID. WE HAVE NO REASON TO CONCLUDE THAT THE REMOVAL OF THE DUST COVER AND THE DISASSEMBLY OF THE PROBES WAS NOT SUFFICIENT TO GIVE ALL BIDDERS ADEQUATE INFORMATION WITH WHICH TO FORMULATE BIDS AND WITH WHICH TO REVISE THE DRAWINGS, ESPECIALLY IN VIEW OF SENTINEL'S FAILURE TO COMPLAIN IN THIS REGARD BEFORE SUBMISSION OF ITS BID.

FURTHER, WE ARE ADVISED THAT ANY IMPLIED WARRANTY THAT THE USE OF THE UNREVISED GOVERNMENT-FURNISHED DRAWINGS WILL RESULT IN SATISFACTORY PERFORMANCE IS SPECIFICALLY DISCLAIMED BY NOTE B OF THE IFB WHICH SETS OUT THE ORDER OF PRECEDENCE MENTIONED ABOVE AND STATES,"* * * BIDDERS ARE CAUTIONED TO INSPECT THE PROCUREMENT MODEL SINCE IT CONTAINS NUMEROUS CHANGES, PARTICULARLY WITH RESPECT TO THE PROBES, THAT ARE NOT REFLECTED ON THE USAECON DRAWINGS.' THE PROCUREMENT AGENCY MAINTAINS, AND WE AGREE, THAT A VALID DISCLAIMER OF IMPLIED WARRANTY OF SPECIFICATION, ETC., ADEQUACY WAS RECOGNIZED BY THE COURT IN THE NORTH AMERICAN PHILIPS CASE, AND THAT SUCH A DISCLAIMER OF IMPLIED WARRANTY WAS PROVIDED FOR IN THIS PROCUREMENT.

IN THE NORTH AMERICAN PHILIPS CASE, SUPRA, THE COURT AT PAGE 985 STATED IN FOOTNOTE 4 AS FOLLOWS:

"DEFENDANT'S WARNING TO PLAINTIFF OF POSSIBLE INACCURACIES AT THE TIME OF DELIVERY OF THE ARF DRAWINGS JUST PRIOR TO THE INCORPORATION OF MODIFICATION 3 TO THE CONTRACT, DID NOT ACT TO DISCLAIM THE WARRANTY. THIS WARNING MERELY SERVED NOTICE TO PLAINTIFF THAT DEFENDANT HAD NOT CHECKED THE ARF DRAWINGS. IT DID NOT INFORM PLAINTIFF THAT THE ARF DRAWINGS WERE INADEQUATE FOR MANUFACTURING PURPOSES.' ALSO, IN THE NORTH AMERICAN PHILIPS CASE, THE REQUIREMENT FOR DRAWING REVISION BY THE CONTRACTOR WAS ADDED BY CONTRACT MODIFICATION AND, AT THE TIME OF THE MODIFICATION, THE FACT THAT THE DRAWINGS WERE INADEQUATE FOR MANUFACTURING PURPOSES WAS NOT KNOWN BY EITHER PARTY. IN THE CASE AT HAND, HOWEVER, PROSPECTIVE CONTRACTORS WERE PUT ON NOTICE BY SPECIFIC INVITATION PROVISIONS THAT THE EXISTING DRAWINGS WERE NOT ADEQUATE FOR PRODUCTION AND THEREFORE HAD TO BE REVISED TO CONFORM TO THE PRODUCTION MODEL AND THE PERFORMANCE SPECIFICATION. WE CONCLUDE THEREFORE THAT ANY IMPLIED WARRANTY OF SPECIFICATION, ETC., ADEQUACY WAS NEGATED BY THE INVITATION PROVISIONS THEMSELVES.

WITH REGARD TO YOUR CONTENTIONS CONCERNING THE NECESSITY FOR A PLUS OR MINUS 1 PERCENT ACCURACY REQUIREMENT IN THE PANEL METER AND VARIATIONS IN THE ACCURACY REQUIREMENTS CAUSED BY TEMPERATURE EXTREMES, THE ADMINISTRATIVE REPORT CONCLUDES THAT THE PLUS OR MINUS 2 PERCENT PANEL METER ACCURACY REQUIRED BY THE SPECIFICATIONS ADEQUATELY MEETS THE NEEDS OF THE GOVERNMENT. IN THIS REGARD, A TECHNICAL APPRAISAL OF YOUR CONTENTIONS CONCLUDED AS FOLLOWS, REFERRING TO PARAGRAPHS CONTAINED IN YOUR PROTEST LETTER:

"1. PAGE 5, SECOND PARAGRAPH WHICH CONTINUES ON PAGE 6 (WHICH IS THE SIXTH PARAGRAPH OF THE LETTER):

"/1) THE SECOND THRU FOURTH SENTENCES ARE CONSIDERED TO BE UNTRUE. PARAGRAPH 3.4 AND 3.4.1 OF SPECIFICATION MIL-M-55254 (EL) REQUIRE THE PANEL METER TO BE TYPE MR46W001-DCMAR PER SPECIFICATION MIL-M-10304C WHICH, ACCORDING TO SPECIFICATION SHEET MIL-M-10304/17C, IS REQUIRED TO HAVE AN ACCURACY OF TWO (2) PERCENT. HOWEVER, THE PROTESTANT ALLEGES THAT A PANEL METER WITH ONE (1) PERCENT, NOT TWO (2) PERCENT, ACCURACY IS REQUIRED FOR PROPER FUNCTIONING OF THE EQUIPMENT. THE PROTESTANT IS A CURRENT SUPPLIER FOR MULTIMETER ME-26D/U ON PIIN DAABO5-67-C-0604 IN ACCORDANCE WITH DOCUMENT SC-A-46482D AND THE PANEL METER BEING SUPPLIED THEREIN IS FURNISHED BY WACLINE, NC., UNDER THEIR PART NO. N40055 WHICH, ACCORDING TO MR. CHARBONNEAUX, PRESIDENT OF WACLINE, IN A TELECON WITH MR. P. ROHRBACHER, TEST EQUIPMENT AND POWER SOURCES DIVISION, HAS AN ACCURACY OF TWO (2) PERCENT, NOT ONE (1) PERCENT. THE WACLINE PART NUMBER IS IDENTICAL TO THE ONE IN THE PROCUREMENT MODEL. HENCE, THE ALLEGATION THAT A PANEL METER WITH A ONE (1) PERCENT ACCURACY IS REQUIRED IS INVALID.

"/2) THE SIXTH THRU EIGHTH SENTENCES STATE THAT THE PANEL METER IS REQUIRED TO HAVE AN ACCURACY OF TWO (2) PERCENT AT FULL SCALE AND/OR AT ONLY SIX (6) POINTS ON THE SCALE, YET HAVE AN ACCURACY OF UP TO PLUS OR MINUS FIVE (5) PERCENT AT OTHER POINTS ON THE SCALE. THIS STATEMENT IS CORRECT SINCE THE ACCURACY OF PLUS OR MINUS 2 PERCENT OF FULL SCALE WILL YIELD A TOLERANCE IN EXCESS OF 2 PERCENT AT ANY INDICATOR VALUE WHICH IS LESS THAN FULL SCALE. FOR EXAMPLE, IT IS POSSIBLE FOR A METER TO HAVE AN ERROR OF UP TO PLUS OR MINUS 10 PERCENT OF FULL SCALE READING AT 0.2 INDICATION OF THE 1.0 VDC SCALE. THIS STATEMENT, HOWEVER, IS NOT A CONFLICT AND, HENCE, THE PROTESTANT HAS FAILED TO PROVE ANY POINT.

"M. PAGE 6, FIRST FULL PARAGRAPH (WHICH IS THE SEVENTH PARAGRAPH OF THE LETTER):

"/1) THE FIRST AND THIRD SENTENCES STATE THAT THE PROTESTANT IS A CURRENT SUPPLIER OF MULTIMETER ME-25D/U IN ACCORDANCE WITH DOCUMENT SC A-46482D WHICH MUST BE FURNISHED WITH A PANEL METER HAVING AN ACCURACY OF PLUS OR MINUS ONE (1) PERCENT IN ORDER TO COMPLY WITH THE "DC METER TRACKING" REQUIREMENTS IN PARAGRAPH D-3G OF DOCUMENT SC-A-46482D. AS STATED IN PARAGRAPH 3I (1) ABOVE, THE "DC METER TRACKING" REQUIREMENTS WERE NO LONGER CONSIDERED NECESSARY AND, CONSEQUENTLY, DO NOT APPEAR IN SPECIFICATION MIL-M-55254 (EL). SINCE SUCH A REQUIREMENT DOES NOT APPEAR IN THE CURRENT IFB, THERE IS NO NEED TO COMMENT ON THE PROTESTANT'S STATEMENTS. (THIS IS ALSO TRUE ON THE SECOND SENTENCE WHICH PERTAINS TO LINEARITY REQUIREMENTS IN DOCUMENT SC-A-46482D.)

"P. PAGE 7, SECOND FULL PARAGRAPH (WHICH IS THE TENTH PARAGRAPH OF THE LETTER):

"/1) FIRST THREE SENTENCES. THE PROTESTANT ALLEGES THAT EXPERIENCE HAS PROVEN THAT THE ACCURACY OF THREE (3) PERCENT FOR MULTIMETER ME 26D/U REQUIRED BY PARAGRAPHS 3.17 AND 4.10 OF SPECIFICATION MIL-M 55254 (EL) CAN ONLY BE MAINTAINED WITH A PANEL METER ACCURACY OF ONE (1) PERCENT, NOT TWO (2) PERCENT, SINCE THE ACCURACY OF THE REMAINING PARTS EXCEEDS ONE (1) PERCENT. THE COMPONENTS THAT AFFECT THE ACCURACY OF THE MULTIMETER ME- 26D/U ARE AS FOLLOWS: PANEL METER WHICH CAN HAVE AN ACCURACY OF PLUS OR MINUS TWO (2) PERCENT AS PERMITTED BY SPECIFICATION SHEET MIL-M-10304/17C AND THE RANGE MULTIPLIER RESISTORS WHICH CAN HAVE A TOLERANCE OF PLUS OR MINUS ONE (1) PERCENT. HENCE, THE ADDITION OF THESE VALUES EQUALS PLUS OR MINUS THREE (3) PERCENT WHICH IS IN AGREEMENT WITH THAT ALLOWED FOR MULTIMETER ME-26D/U BY PARAGRAPHS 3.17 AND 4.10 OF SPECIFICATION MIL-M- 55254 (EL). OBVIOUSLY, THERE IS NO CONFLICT BETWEEN THE ACCURACY OF MULTIMETER ME-26D/U AND THE COMPONENTS THEREOF AND, HENCE, THE ALLEGATION IS INVALID. INCIDENTALLY, THE MULTIMETER CIRCUITRY CAN BE ADJUSTED BY MEANS OF VARIOUS POTENTIOMETERS LOCATED IN THE METER CIRCUITS REDUCING ANY ERROR TO A MINIMUM.'

WITH REGARD TO YOUR COMMENTS CONCERNING ACCURACY REQUIREMENTS AFTER EXPOSURE TO EXTREME TEMPERATURES, IT WAS STATED:

"Q. PAGE 8, FIRST PARAGRAPH (WHICH IS THE ELEVENTH PARAGRAPH OF THE LETTER):

"/1) THE FIRST SENTENCE IS NOT CORRECT. THE REQUIREMENTS IN PARAGRAPHS 3.21.2 AND 4.18 OF SPECIFICATION MIL-M-55254 (EL) ARE EXPECTED TO BE MET WITH THE REQUIRED PANEL METER. ONLY IN A RARE CASE ARE SUCH REQUIREMENTS NOT EXPECTED TO BE MET, THE CONDITION BEING WHEN THE ACCURACY OF THE PANEL METER AFTER EXPOSURE TO EXTREME TEMPERATURES IS A CUMULATIVE ADDITION OF THE PANEL METER ACCURACY PRIOR TO SUCH EXPOSURE.

"/3) IN REGARD TO THE FOURTH SENTENCE, SUCH A POSSIBLE ERROR IS CONSIDERED TO BE VERY MINOR AND DOES NOT WARRANT CANCELLATION OF THE IFB AND RESOLICITATION.'

FINALLY, THIS TECHNICAL APPRAISAL CONCLUDED THAT ENVIRONMENTAL TESTING IS NOT REQUIRED BECAUSE ,MULTIMETER ME-26D/U IS CONSTRUCTED USING MILITARY COMPONENTS, FINISHES AND PROCESSES THAT ARE DESIGNED TO WITHSTAND THE SPECIFIED ENVIRONMENTAL TESTS. ACCORDINGLY, THERE ARE NO OBVIOUS REASONS WHY THE MULTIMETER ME-26D/U SHOULD NOT MEET THE ENVIRONMENTAL TESTS LISTED IN SPECIFICATION MIL-M-55254 (EL).' IN A LETTER DATED MAY 26, 1967, SUBMITTED IN REBUTTAL OF THE ADMINISTRATIVE REPORT, YOU ITERATE YOUR CONTENTION THAT A PLUS OR MINUS 1 PERCENT ACCURACY REQUIREMENT IN THE PANEL METER IS NECESSITATED BY THE "STRINGENT DC METER TRACKING TEST" INCLUDED IN SPECIFICATION SC-A 46482D, A SPECIFICATION WHICH WAS USED BEFORE ISSUANCE OF MIL-M-55254 (EL) REFERENCED IN THE SUBJECT IFB. YOU MAINTAIN THAT THE FACT THAT THE NEW SPECIFICATION DOES NOT CONTAIN ANY TEST REQUIREMENTS FOR DC METER TRACKING IS NOT CONTROLLING BECAUSE "IT HAS BEEN PROVEN BY PAST PERFORMANCE THAT THE MULTIMETER WILL NOT FULFILL ITS INTENDED FUNCTION IN THE FIELD UNLESS ITS CALIBRATION AT THE MANUFACTURING POINT IS REFINED TO THE DEGREE WHERE IT CAN MEET SUCH A DC TRACKING TEST.' AS INDICATED ABOVE, THE DC METER TRACKING TEST REQUIREMENTS WERE OMITTED FROM THE NEW SPECIFICATION BECAUSE THEY WERE CONSIDERED TO BE NO LONGER NECESSARY. IN THIS REGARD, THE TECHNICAL APPRAISAL STATES:

"I. PAGE 3, SECOND PARAGRAPH WHICH CONTINUES ON PAGE 4 (WHICH IS THE THIRD PARAGRAPH OF LETTER):

"/1) FIRST THREE (3) SENTENCES ARE CORRECT. HOWEVER, ALTHOUGH THE THIRD SENTENCE WHICH STATES THAT THE IFB REPRESENTS THE FIRST TIME USE OF SPECIFICATION MIL-M-55254 (EL) FOR PROCUREMENT OF THE ITEM IS CORRECT, THE PERFORMANCE CHARACTERISTICS THEREIN WITH ONE EXCEPTION ARE IDENTICAL TO THE PERFORMANCE CHARACTERISTICS IN THE SUPERSEDED SPECIFICATION, NAMELY, DOCUMENT SC-A-46482D. THE EXCEPTION BETWEEN THE TWO (2) SPECIFICATIONS IS THAT THE REQUIREMENT FOR "DC METER TRACKING" IN DOCUMENT SC-A-46482D WAS NO LONGER CONSIDERED ESSENTIAL AND, HENCE, DOES NOT APPEAR IN SPECIFICATION MIL-M-55254 (EL). IN OTHER WORDS, SPECIFICATION MIL-M-55254 (EL) IS LESS STRINGENT THAN ITS SUPERSEDED SPECIFICATION. * * *"

YOUR MAY 26 LETTER ALSO CHALLENGES THE STATEMENT IN THE ADMINISTRATIVE REPORT TO THE EFFECT THAT SENTINEL'S PANEL METER SUPPLIER UNDER ANOTHER CURRENT CONTRACT IS SUPPLYING A 2 PERCENT PANEL METER. TO SUPPORT YOUR POSITION, YOU SUBMITTED A COPY OF A LETTER FROM MR. CHARBONNEAUX, PRESIDENT OF WACLINE, INC., SENTINEL'S PANEL METER SUPPLIER, WHICH STATES THAT THE METERS BEING SUPPLIED UNDER SENTINEL'S OTHER CONTRACT AVERAGE BETWEEN 0.5 PERCENT AND 1.5 PERCENT ACCURACY. HOWEVER, THE LETTER ALSO STATES THAT:

"THE METERS WHICH WE ARE FURNISHING YOU ARE OUR REGULAR 2 PERCENT METERS, BUT BECAUSE OF THE QUANTITIES YOU HAVE BEEN BUYING, WE HAVE REQUESTED OUR PERSONNEL TO KEEP THE ACCURACY SOMETHING LESS THAN 1 1/2 PERCENT.' SINCE THE SPECIFICATIONS UNDER SENTINEL'S EARLIER CONTRACT CALL FOR ONLY 2 PERCENT ACCURACY AND SINCE THE PART NUMBER BY WHICH THOSE METERS ARE DESCRIBED CALLS FOR ONLY 2 PERCENT ACCURACY, WE CONCLUDE THAT THE STATEMENT IN THE ADMINISTRATIVE REPORT IS NOT SUBJECT TO QUESTION.

GENERALLY, THE DRAFTING OF SPECIFICATIONS IS A FUNCTION OF THE PROCUREMENT AGENCY BECAUSE THAT AGENCY IS UNIQUELY KNOWLEDGEABLE AS TO WHAT WILL SERVE THE GOVERNMENT'S MINIMUM NEEDS IN A GIVEN INSTANCE. CASES WHERE A DIFFERENCE OF OPINION AS TO THE ADEQUACY OF SPECIFICATIONS EXISTS, OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING OFFICIALS IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT THE CONTRACTING OFFICIALS ARE IN ERROR. 40 COMP. GEN. 294, B-155710, APRIL 15, 1965.

IN THE CASE AT HAND, WE CANNOT SAY THAT THE CONTRACTING OFFICIALS ARE IN ERROR. THE LOW BIDDER, MACROMIN ELECTRONICS, HAS ADVISED THAT IT CAN REVISE THE DRAWINGS TO CONFORM TO THE PROCUREMENT MODEL AND THE PERFORMANCE SPECIFICATIONS AND THAT IT IS ABLE TO PRODUCE THE MULTIMETER CALLED FOR IN THE PERFORMANCE SPECIFICATIONS. NONE OF THE OTHER BIDDERS HAS COMPLAINED THAT THE SPECIFICATIONS ARE INADEQUATE. IN FACT, SENTINEL DID NOT COMPLAIN UNTIL AFTER BIDS WERE OPENED AND IT WAS DETERMINED THAT IT WAS NOT THE LOW BIDDER. FINALLY, AS STATED ABOVE, THE PROCUREMENT AGENCY HAS DETERMINED THAT SUFFICIENT INFORMATION WAS PROVIDED BIDDERS FOR THE PREPARATION OF RESPONSIVE BIDS AS WELL AS FOR THE PRODUCTION OF THE REQUIRED MULTIMETERS, AND THAT THE MULTIMETERS REQUIRED BY THE PERFORMANCE SPECIFICATIONS WILL FULFILL THE MINIMUM NEEDS OF THE GOVERNMENT.

ON THE RECORD BEFORE US, WE FIND NO BASIS TO CONCLUDE THAT THE SUBJECT IFB SHOULD BE CANCELED. ACCORDINGLY, YOUR PROTEST IS DENIED.