B-164542, AUG. 19, 1968

B-164542, AUG. 19, 1968

TO PRECISION STANDARDS CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 6, 1968, TO THE DIRECTORATE, PROCUREMENT AND PRODUCTION, SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE, TEXAS, PROTESTING THE AWARD OF A CONTRACT TO OTHER THAN YOUR COMPANY UNDER INVITATION FOR BIDS F41608-68-B-1197.

THAT INVITATION ISSUED FEBRUARY 14, 1968, SOLICITED BIDS FOR FURNISHING 70 ELECTRONIC VOLTMETERS DESCRIBED AS "FLUKE MODEL 803D, OR EQUAL.' PRECISION STANDARDS SUBMITTED THE LOWEST BID OF $690 PER UNIT, OFFERING ITS AC-DC VOLTMETER MODEL 340A/D AS EQUAL TO THE BRAND NAME ITEM. THE BRAND NAME MANUFACTURER SUBMITTED THE NEXT LOW BID OF $924 PER UNIT. BIDS WERE OPENED MARCH 15, 1968.

THE INVITATION REQUIRED THAT A SAMPLE OF ANY ITEM OFFERED AS EQUAL TO THE BRAND NAME ITEM BE SUBMITTED FOR TESTING BY THE GOVERNMENT TO DETERMINE ITS COMPLIANCE WITH THE ESSENTIAL CHARACTERISTICS OF THE BRAND NAME ITEM. IN FEBRUARY 1968, A PRECISION STANDARDS MODEL 340A/D, WHICH HAD BEEN PREVIOUSLY FURNISHED WITH AN UNSOLICITED PROPOSAL, WAS FOUND AFTER TESTING TO BE UNACCEPTABLE BECAUSE IT DID NOT MEET THE AC REJECTION CRITERIA. THIS SALIENT CHARACTERISTIC WAS SET OUT IN THE ADVANCE PROCUREMENT DATA SUPPORT WORKSHEET, AND WAS USED IN THE EVALUATION OF THE UNSOLICITED PROPOSAL'S BID SAMPLE. THE REQUIRED AC REJECTION, BETWEEN THE HIGH AND LOW OR POSITIVE AND NEGATIVE TERMINALS OF THE VOLTMETER, WAS EXPLAINED TO PRECISION STANDARDS. HOWEVER, APPARENTLY SOME MISUNDERSTANDING OCCURRED AS AN IMPROPER MODIFICATION WAS MADE TO "COMMON MODE REJECTION" INSTEAD OF THE REQUIRED "NORMAL MODE REJECTION.' THIS AC REJECTION WAS NEEDED TO BE CAPABLE OF MEASURING A LOW DC SIGNAL WITH A LARGE LOW FREQUENCY NOISE PRESENT. THE BRAND NAME ITEM SATISFIED SUCH A REQUIREMENT AND THE ENGINEERING PERSONNEL DETERMINED THIS TO BE A NECESSARY REQUIREMENT OF THE PROCUREMENT.

AS A RESULT OF THE MISUNDERSTANDING, ON ABOUT MARCH 10, 1968, PRECISION STANDARDS WAS NOTIFIED THAT THEIR MODEL WAS STILL UNACCEPTABLE FOR FAILURE TO SATISFY THE AC REJECTION REQUIREMENT. ON MARCH 13, 1968, PRECISION STANDARDS AGAIN MODIFIED THEIR MODEL TO SATISFY THE AC REJECTION REQUIREMENT. UPON COMPLETION OF THE TEST EVALUATION ON MARCH 28, 1968, THE BID SAMPLE WAS RETURNED IN ACCORDANCE WITH NORMAL PROCEDURES. DATA OR EVALUATION RESULTS DO NOT ACCOMPANY THE RETURNED SAMPLES BUT ARE FORWARDED TO THE PROCUREMENT OFFICIALS, WHO IN TURN NOTIFY BIDDERS. MODEL 340A/D, SUBMITTED BY PRECISION STANDARDS AS A BID SAMPLE, DID NOT MEET THE MINIMUM REQUIREMENTS OF THE INVITATION AND WAS NOT ACCEPTABLE AS AN EQUAL TO THE FLUKE MODEL 803D FOR THE FOLLOWING REASONS:

A. CALIBRATION ACCURACY AS A VTVM EXCEEDED PLUS OVER MINUS 3 PERCENT OF FULL SCALE ON AC AND DC.

B. AC ACCURACY EXCEEDED PLUS OVER MINUS 0.1 PERCENT FULL SCALE AT 5KHZ AND PLUS OVER MINUS 0.1 PERCENT FULL SCALE PLUS 25 UV AT 10 KHZ.

C. METER RESPONSE WAS EXTREMELY SLOW.

PRECISION STANDARDS CONTENDS THEIR MODEL DID MEET THE REQUIREMENTS OF THE INVITATION AND WOULD HAVE IN FACT BEEN SO FOUND UPON EVALUATION IF THEY HAD BEEN ADVISED OF THE APPROPRIATE AC REJECTION CHARACTERISTIC AT THE START AND IF AIR FORCE TESTING PERSONNEL HAD RECALIBRATED THE BID SAMPLE AS REQUESTED.

IN THIS PROCUREMENT THERE ARE CERTAIN FACTS IN DISPUTE (I.E., WHETHER RECALIBRATION WAS REQUESTED; WHEN AND IF PRECISION STANDARDS WAS GIVEN THE CORRECT AC REJECTION) AND WHILE THIS OFFICE IS CONSTRAINED IN THE ABSENCE OF CLEAR EVIDENCE TO THE CONTRARY TO ADOPT THE ADMINISTRATIVE FINDINGS (SEE B-154114, MAY 20, 1964), THE RESOLUTION OF THIS PROTEST IS NOT BOTTOMED UPON THESE CONTROVERTED FACTS.

THE SALIENT CHARACTERISTIC OF THE AC REJECTION REQUIREMENT COULD HAVE BEEN SET FORTH IN THE INVITATION WITH GREATER CLARITY; HOWEVER, INASMUCH AS THE BID SAMPLE OF PRECISION STANDARDS WAS SUBMITTED AND EVALUATED WELL IN ADVANCE OF BID OPENING, CONTRARY TO NORMAL PRACTICE, AN OPPORTUNITY WAS AVAILABLE TO REMEDY ANY DEFICIENCY. IT IS ALSO UNCLEAR WHY PRECISION STANDARDS DID NOT RECALIBRATE THEIR MODEL ON MARCH 13, 1968, WHEN THE AC REJECTION MODIFICATION WAS MADE OR, IF TIME DID NOT PERMIT, THEN WHY A POSTPONEMENT OF THE BID OPENING WAS NOT REQUESTED. IN ANY CASE, IT IS FUNDAMENTAL THAT THE AIR FORCE COULD NOT PERFORM CHANGES OR MODIFICATIONS TO BID SAMPLES (SUCH AS RECALIBRATION) TO MAKE SUCH SAMPLES CONFORM TO THE REQUIREMENTS OF THE INVITATION. THAT ACTION WOULD BE CLEARLY PREJUDICIAL TO THE OTHER BIDDERS AND WOULD RESULT IN ANY AWARD MADE BEING SUBJECT TO ACCEPTANCE OR REJECTION BY THE BIDDER AS ON A BASIS OTHER THAN WHICH HE BID. FINALLY, THE RESPONSIBILITY FOR SUBMITTING A BID AND BID SAMPLE WHICH CONFORM TO THE REQUIREMENTS OF THE INVITATION RESTS SOLELY WITH THE BIDDER.

ACCORDINGLY, WE CANNOT PERCEIVE ANY BASIS FOR CONCLUDING THAT YOUR COMPANY WAS TREATED UNFAIRLY BY THE AIR FORCE OR THE ACTIONS OF THE PROCUREMENT OFFICIALS RESULTED IN AN IMPROPER AWARD. THEREFORE, YOUR PROTEST MUST BE DENIED.