B-161472, AUG. 4, 1967

B-161472: Aug 4, 1967

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SINCE MATTER OF WHETHER EQUIPMENT OFFERED BY BIDDER CONFORMS TO SPECIFICATION IS PRIMARILY FOR CONTRACTING AGENCY AND REPORT OF PROCUREMENT AGENCY REGARDING TECHNICAL EVALUATION OF PROPOSAL BY SUCCESSFULL CONTRACTOR WAS NOT ARBITRARY OR CAPRICIOUS PROTEST IS DENIED. TO ELECTROMAGNETIC TECHNOLOGY CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF MAY 13. THE SUBJECT INVITATION WAS ISSUED ON MARCH 14. THE BIDS WERE OPENED ON APRIL 18. WAS THE LOW BIDDER. YOU CONTEND THAT THE BID OF VIKING IS TECHNICALLY NONRESPONSIVE. WHICH IS PATENTLY NONRESPONSIVE TO THE INVITATION REQUIREMENTS. IT IS YOUR CONTENTION THAT THE EQUIPMENT OFFERED BY VIKING DOES NOT CONTAIN COMPLETE FUSING OF ALL MODULES AND WHERE A FUSE IS PROVIDED IN THE POWER SUPPLY IT DOES NOT PROVIDE ADEQUATE FUSING FOR THE ENTIRE MODULE.

B-161472, AUG. 4, 1967

BIDS - SPECIFICATIONS - COMPLIANCE DECISION TO ELECTROMAGNETIC TECHNOLOGY CORP. RE PROTEST TO AWARD OF CONTRACT TO VIKING INDUSTRIES, INC., BY DEPT. OF ARMY, FORT SAM HOUSTON TO FURNISH CLOSED CIRCUIT TELEVISION AMPLIFIER EQUIPMENT. SINCE MATTER OF WHETHER EQUIPMENT OFFERED BY BIDDER CONFORMS TO SPECIFICATION IS PRIMARILY FOR CONTRACTING AGENCY AND REPORT OF PROCUREMENT AGENCY REGARDING TECHNICAL EVALUATION OF PROPOSAL BY SUCCESSFULL CONTRACTOR WAS NOT ARBITRARY OR CAPRICIOUS PROTEST IS DENIED.

TO ELECTROMAGNETIC TECHNOLOGY CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF MAY 13, 1967, PROTESTING AGAINST THE PROPOSED AWARD OF A CONTRACT TO VIKING INDUSTRIES, INC., UNDER DEPARTMENT OF THE ARMY INVITATION NO. DABD11-67-0064, ISSUED BY PROCUREMENT DIVISION, G4, FORT SAM HOUSTON, TEXAS.

THE SUBJECT INVITATION WAS ISSUED ON MARCH 14, 1967, SOLICITING BIDS FOR THE FURNISHING OF CLOSED CIRCUIT TELEVISION AMPLIFIER EQUIPMENT. THE BIDS WERE OPENED ON APRIL 18, 1967, AND VIKING INDUSTRIES, INC., WAS THE LOW BIDDER.

IN YOUR LETTER OF MAY 13, 1967, YOU CONTEND THAT THE BID OF VIKING IS TECHNICALLY NONRESPONSIVE. SPECIFICALLY, YOU STATE THAT THE GOVERNMENT'S SPECIFICATION REQUIREMENTS EXPRESSLY CALLED FOR A POWER INPUT OF 20 TO 32 VOLTS, A.C., WHEREAS VIKING'S EQUIPMENT, AS DESCRIBED IN ITS LITERATURE, SPECIFIED AN ACCEPTABLE POWER INPUT OF 19 TO 30 VOLTS, A.C., WHICH IS PATENTLY NONRESPONSIVE TO THE INVITATION REQUIREMENTS. WITH RESPECT TO THE INTERNAL POWER CIRCUITRY YOU POINT OUT THAT PARAGRAPH TP-2G OF THE SPECIFICATION CALLS FOR FUSING FOR THE VARIOUS MODULES AND YOU STATE THAT THIS REQUIRES THAT EACH MODULE IN SERVICE IN THE BASIC HOUSING CONTAIN ADEQUATE FUSING. IT IS YOUR CONTENTION THAT THE EQUIPMENT OFFERED BY VIKING DOES NOT CONTAIN COMPLETE FUSING OF ALL MODULES AND WHERE A FUSE IS PROVIDED IN THE POWER SUPPLY IT DOES NOT PROVIDE ADEQUATE FUSING FOR THE ENTIRE MODULE. YOU ALSO CONTEND THAT THE VIKING EQUIPMENT DOES NOT COMPLY WITH THE PROVISIONS OF PARAGRAPH TP-4 OF THE SPECIFICATION REGARDING THE AUTOMATIC GAIN CONTROL MODULES; THAT THE OPERATING GAIN AVAILABLE IN VIKING'S EQUIPMENT IS 3 DB LESS THAN THE MINIMUM SPECIFIED IN PARAGRAPH TP -7B OF THE SPECIFICATION; AND THAT VIKING'S EQUIPMENT DOES NOT CONTAIN TWO OUTPUTS IN THE REMOTE POWER SUPPLY AS REQUIRED BY PARAGRAPH TP-10E OF THE SPECIFICATION.

THE PROCURING ACTIVITY HAS FURNISHED THE FOLLOWING REPORT REGARDING YOUR CONTENTIONS:

"PARAGRAPH (2) BOTH ISSUES - THE SPECIFICATION SUBSECTION REFERRED TO BY EMTECH (TP-2 OF THE TECHNICAL PROVISIONS OF THE SPECIFICATIONS) IS NOT A - GENERAL DESCRIPTION-: BUT IS, IN FACT, THE TECHNICAL SPECIFICATIONS FOR THE -BASIC HOUSING FOR TRUNK AND BRIDGING AMPLIFIERS' AND SUB-PARAGRAPH 2G -INTERNAL POWER CIRCUITRY, - CONCERNS ITSELF WITH THE BASIC HOUSING AND PROVISION OF THE PROPER AC VOLTAGE TO BE FED TO THE DC POWER SUPPLY MODULE.

"FIRST ISSUE. THE VIKING BASIC HOUSING PROVIDES FOR SWITCHING OF AC POWER AND PLUG-IN RECEPTACLES FOR THE AC TO DC POWER SUPPLY MODULE AND IN NO CASE IS THE AC OPERATING VOLTAGE OF THE BASE PLATE OR HOUSING MENTIONED IN THE LITERATURE FURNISHED WITH VIKING'S BID. THE 19-30 VOLTS AC REFERRED TO BY EMTECH IN ALL CASES REFERS TO THE INPUT VOLTAGE OF THE AC TO DC POWER SUPPLY MODULE. SINCE THE BASIC HOUSING PROVIDES FEED-THRU TYPE CONNECTIONS FOR AC POWER, PROVISION OF THE PROPER VOLTAGE TO THE AC TO DC POWER SUPPLY MODULE IS DEPENDENT ON THE REMOTE AC POWER WHICH MEETS THE REQUIREMENTS OF PARAGRAPH TP-10 AND THE LENGTH OF COAX FEED LINE (COAX FEED LINE IS NOT INCLUDED IN THIS CONTRACT). THEREFORE, VIKING CLEARLY MEETS ALL PROVISIONS OF THE SPECIFICATION REFERRED TO IN THE FIRST ISSUE.

"SECOND ISSUE. THE FUSING REQUIREMENT IS STATED IN THE BASIC HOUSING SUBPARAGRAPH 2G DEFINED IN BOTH ISSUES ABOVE AND, THEREFORE, SHOULD REASONABLY BE INTERPRETED TO BE CONCERNED WITH FUSING OF THE POWER MODULES AND THAT THE FUSING MIGHT REASONABLY BE PLACED EITHER ON THE BASEPLATE OF THE HOUSING OR IN THE POWER SUPPLY MODULE CIRCUITRY. IT IS FURTHER NOTED THAT THERE IS NO REQUIREMENT FOR FUSING IN THE PARAGRAPHS CONTAINING SPECIFICATIONS FOR THE VARIOUS MODULES WHERE SUCH A REQUIREMENT WOULD REASONABLY BE PLACED HAD FUSING OF EACH INDIVIDUAL MODULE BEEN DESIRED. THESE FACTS CLEARLY DEMONSTRATE THAT ONE FUSE FOR ALL MODULES WAS ALL THAT THE SPECIFICATIONS REQUIRED; THEREFORE, VIKING IS COMPLETELY RESPONSIVE TO THIS SPECIFICATION, SINCE ALL MODULES ARE FUSED BY A SINGLE FUSE PLACED IN THE AC TO DC POWER MODULE. EXACT PLACEMENT OF THE FUSE IN VIKING'S POWER SUPPLY IS ADEQUATELY EXPLAINED IN PARAGRAPH 2 OF REFERENCE B ABOVE. (LETTER OF MAY 6, 1967, FROM THE CONTRACTING OFFICER TO YOUR COMPANY.)

"PARAGRAPH (3) THE SPECIFICATION REQUIRES ACC ADJUSTMENT FROM ONE OR TWO PILOT CARRIERS, THEREFORE, ONE CARRIER AS PROPOSED BY VIKING DEFINITELY MEETS THE REQUIREMENTS OF THE SPECIFICATION. UTILIZING A PILOT CARRIER OF 225 MC AS STATED IN THE VIKING LETTER FURNISHED AS PART OF THEIR BID CLEARLY MODIFIES THE BAND PASS OF THE MAIN LINE AMPLIFIERS OF 50 TO 220 MC AS SHOWN IN THE VIKING PRINTED LITERATURE TO 50 TO 225 MC WHICH EXCEEDS THE REQUIREMENTS OF THE SPECIFICATION. THE STATEMENT BY EMTECH THAT IN THEIR CONSIDERED TECHNICAL JUDGMENT THE VIKING APPROACH (OF PROVIDING A SINGLE PILOT CARRIER) WILL NOT PROVIDE AUTOMATIC GAIN, TILT CONTROL AND TEMPERATURE COMPENSATION AT THE SAME TIME WAS APPARENTLY MADE WITHOUT KNOWLEDGE OF THE SPECIFIC APPROACH TO BE USED BY VIKING. WITH REFERENCE TO THE LAST THREE (3) SENTENCES OF PARA 3, VIKING'S STATEMENT IN THEIR BID THAT A PILOT CARRIER OF 225 MC WOULD BE UTILIZED FOR ACC CLEARLY CONSTITUTES A DECLARATION BY VIKING TO PROVIDE LINE AMPLIFIERS WITH A BAND PASS OF 225 MC ON THE HIGH SIDE. CLARIFICATION WAS UNNECESSARY.

"PARAGRAPH (4) SEE PARA 4 OF REF B. (LETTER OF MAY 6, 1967, FROM CONTRACTING OFFICER TO YOUR COMPANY.) WITH REFERENCE TO EMTECH'S STATEMENT THAT THE GOVERNMENT CONFUSED -OPERATING GAIN- AND -POWER OUTPUT CAPABILITY, - THERE WAS NO CONFUSION ON THE PART OF THE GOVERNMENT TECHNICAL PERSONNEL. THE PARAGRAPH STATED THAT THE OUTPUT OF A PLUS 50 DB WAS 2 DB HIGHER THAT (THAN) REQUIRED BY SPECIFICATIONS (SEE PARA TP-7J WHICH REQUIRES AN OUTPUT OF NOT LESS THAN 48 DBMV). TO PRODUCE AN OUTPUT SIGNAL OF 48 TO 50 DB REQUIRES A COMBINATION OF AMPLIFIER GAIN AND THE INPUT SIGNAL STRENGTH, NOT AMPLIFIER GAIN ALONE, AS STATED BY EMTECH IN THE 3RD SENTENCE FROM THE END OF PARA 4. THE SPECIFICATION DID NOT STATE THE POINTS TO BE UTILIZED IN MEASURING THE OPERATING GAIN OF THE INTERMEDIATE BRIDGING AMPLIFIER OR THE EXTERNAL EQUIPMENT TO BE INCLUDED IN THE MEASUREMENTS. THE 45 DB GAIN OF THE VIKING MODULE IS ADEQUATE TO PROVIDE 38 DB OPERATING GAIN EVEN IF THE INPUT IS CONNECTED TO A SOURCE SIGNAL THRU EXTERNAL EQUIPMENT HAVING A 7 DB LOSS. THE POWER OUTPUT IS THE CRITICAL REQUIREMENT, AND IT IS NOT EXPECTED THAT THE INTERMEDIATE BRIDGING AMPLIFIER WILL EVER BE CONNECTED TO A POINT WHERE INPUT LEVELS WILL BE LOW ENOUGH TO REQUIRE LESS THAN 10 DB LOSS IN THE EXTERNAL EQUIPMENT; THEREFORE, INTERMEDIATE BRIDGER TO BE PROVIDED BY VIKING MEETS THE REQUIREMENTS OF THE SPECIFICATION.

"PARAGRAPH (5) SEE PARA 1 OF REF B. (LETTER OF MAY 6, 1967, FROM THE CONTRACTING OFFICER TO YOUR COMPANY.) THE STATEMENT BY EMTECH THAT DOCUMENTS SUBMITTED BY VIKING TO SUPPORT THEIR BID DID NOT DISCLOSE THE EXISTENCE OF -TWO OUTPUTS' IN THE REMOTE POWER SUPPLY IS OBVIOUSLY IN ERROR. THE FOLLOWING QUOTE FROM PARA X OF VIKING'STECHNICAL PROPOSAL INCLUDED AS PART OF THEIR BID SUBSTANTIATES THIS STATEMENT.

" -X. REMOTE POWER SUPPLIES

VIKING WILL MEET ALL THE SPECIFICATIONS OF PARAGRAPH TP-10. ALTHOUGH NOT CALLED OUT IN THE LITERATURE THE ISOLATION OF THE VIKING MODEL 5903, POWER SUPPLY IS IN EXCESS OF 70DB BETWEEN THE INPUT POWER TERMINALS AND EITHER OF THE TWO OUTPUTS. SEE PAGE 11, EXHIBIT A. - " (VIKING'S BROCHURE ACCOMPANYING ITS BID.)

IN ADDITION TO THE REPORT OF THE PROCURING ACTIVITY, WE HAVE RECEIVED FROM THE OFFICE OF THE CHIEF, COMMUNICATIONS-ELECTRONICS, THE FOLLOWING COMMENTS REGARDING YOUR CONTENTIONS:

"/1) REFERENCE PROTESTANT'S LETTER, 13 MAY 1967, PARAGRAPH (2), AND TECHNICAL PROVISIONS, PAGE TP-1, PARAGRAPH TP-2G. THE GOVERNMENT WITHIN PARAGRAPH TP-2G DOES CALL FOR A 20 TO 32 VOLT AC REQUIREMENT.

"/A) THIS IS A POWER REQUIREMENT OF THE BASIC HOUSING, NOT OF THE INTERNAL POWER SUPPLY OF THE HOUSING.

"/B) VIKING PROVIDED NO INFORMATION PERTAINING TO THE ELECTRICAL CAPABILITY OF THE HOUSING TO ACCEPT GIVEN VOLTAGES.

"/C) IT APPEARS VIKING MISINTERPRETED THE REQUIREMENT AS SET FORTH WITHIN PARAGRAPH TP-2G AND FURNISHED INFORMATION RELATIVE TO THEIR INTERNAL POWER SUPPLY, WHICH IS A MODULE CONTAINED WITHIN THE HOUSING.

"/D) IN PARAGRAPH II OF VIKING'S TECHNICAL PROPOSAL THEY STATE THEY WILL MEET ALL THE SPECIFICATIONS OUTLINED IN PARAGRAPH TP-2 OF THE GOVERNMENT'S TECHNICAL PROVISIONS.

"CONCLUSION - BASED ON VIKING STATEMENT IN PARAGRAPH II OF THEIR TECHNICAL PROPOSAL, THAT ALL GOVERNMENT SPECIFICATIONS WILL BE MET, IT CAN BE CONCLUDED THAT VIKING IS RESPONSIVE TO THE REQUIREMENTS OUTLINED IN PARAGRAPH TP-2G.

"/E) ADDITIONALLY, PARAGRAPH TP-2G STATES THE REQUIREMENT FORFUSE PROTECTION, BUT DOES NOT SPECIFICALLY STATE HOW THIS SHOULD BE ACCOMPLISHED.

"CONCLUSION - THE METHOD OF PROVIDING THIS FUSING IS THE MANUFACTURER'S CHOICE. VIKING CAN BE CONSIDERED RESPONSIVE.

"/2) REFERENCE PROTESTANT'S LETTER, 13 MAY 1967, PARAGRAPH (3):

"/A) THE GOVERNMENT'S REQUIREMENT FOR AUTOMATIC GAIN CONTROL AS SET FORTH IN MODIFICATION NO. 1 TO DABD11-67-0064 - CLOSED CIRCUIT AMPLIFIER EQUIPMENT, PARAGRAPH 4, STATES THE REQUIREMENT FOR THIS CAPABILITY, BUT DOES NOT SPECIFICALLY STATE HOW THIS FUNCTION SHALL BE PERFORMED, THIS IS LEFT TO THE CHOICE OF THE MANUFACTURER.

"CONCLUSION - VIKING CAN BE CONSIDERED RESPONSIVE.

"/B) THE REFERENCE THAT INFORMATION SUBMITTED IN THE VIKING TECHNICAL PROPOSAL WAS INCONSISTENT IN ONE CASE WITH VIKING'S DATA SHEETS IS CORRECT.

"CONCLUSION - SECTION IV OF VIKING'S TECHNICAL PROPOSAL STATES THEY WILL MODIFY FURNISHED EQUIPMENT TO MEET THE REQUIREMENTS OF THE GOVERNMENT, OUTLINED IN PARAGRAPH 4 OF MODIFICATION NO. 1 TO DABD11-67 0064 - CLOSED CIRCUIT AMPLIFIER EQUIPMENT. VIKING CAN BE CONSIDERED RESPONSIVE.

"/3) REFERENCE PARAGRAPH (4) OF PROTESTANT'S LETTER, 13 MAY 1967: THE POINT OF CONTENTION IS THE REQUIREMENT AS STATED WITHIN PARAGRAPH TP-7B OF TECHNICAL PROVISIONS. THE GOVERNMENT'S REQUIREMENT AS STATED PROVIDES NO CRITERIA FOR THE PERFORMANCE OF MEASUREMENTS OR THE CONDITION OF MODULE OPERATION UNDER WHICH PROOF OF ELECTRICAL PERFORMANCE MUST BE PERFORMED OR CERTIFIED TO.

"CONCLUSION - THE TERM OPERATING GAIN AS USED IS RATHER BROAD IN NATURE AND CAN BE LOOSELY INTERPRETED. THE ESSENTIAL REQUIREMENT AS REQUESTED IS BEING MET BY VIKING.

"/4) REFERENCE PARAGRAPH (5) OF PROTESTANT'S LETTER, 13 MAY 1967: A REVIEW OF THE ADVERTISING BROCHURE FURNISHED BY VIKING DOES NOT DISCLOSE THE PRESENCE OF TWO OUTPUTS CALLED FOR ON PAGE TP-7, PARAGRAPH TP-10E, TECHNICAL PROVISIONS.

"CONCLUSION - ADDITIONAL INFORMATION PROVIDED IN THEIR TECHNICAL PROPOSAL, PARAGRAPH X, REMOTE POWER SUPPLIES, INDICATES VIKING IS PROVIDING TWO OUTPUTS AS REQUIRED BY THE GOVERNMENT.'

IT LONG HAS BEEN RECOGNIZED THAT THE FACTUAL DETERMINATION AS TO WHETHER THE EQUIPMENT OFFERED BY A BIDDER CONFORMS TO THE SPECIFICATION IS TO BE DECIDED PRIMARILY BY THE CONTRACTING AGENCY AND OUR OFFICE WILL NOT QUESTION SUCH DETERMINATION UNLESS SHOWN TO BE ARBITRARY OR CAPRICIOUS. 43 COMP. GEN. 77, 80; 40 ID. 35. B-154716, OCTOBER 16, 1964. OUR OFFICE HAS NEITHER AN ENGINEERING STAFF NOR A TESTING LABORATORY TO EVALUATE THE TECHNICAL ASPECTS OF SPECIFICATIONS. MOREOVER, IN DISPUTES OF FACT BETWEEN A PROTESTANT AND THE PROCUREMENT AGENCY, WE NECESSARILY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE VERSION AS CORRECT. WE HAVE REVIEWED THE REPORT OF THE ADMINISTRATIVE OFFICE REGARDING THE TECHNICAL EVALUATION OF VIKING'S PROPOSAL AND WE CANNOT SAY THAT THE DETERMINATION MADE BY THE ADMINISTRATIVE OFFICE WAS ARBITRARY OR CAPRICIOUS.

ACCORDINGLY, WE SEE NO LEGAL OR PROPER BASIS FOR QUESTIONING THE ADMINISTRATIVE DETERMINATION THAT THE BID OF VIKING WAS TECHNICALLY RESPONSIVE TO THE SPECIFICATIONS AND YOUR PROTEST IS, THEREFORE, DENIED.