B-164976, NOV. 5, 1968

B-164976: Nov 5, 1968

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TO NEFF INSTRUMENT CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF JULY 30. THE INVITATION WAS ISSUED TO FULFILL A REQUIREMENT OF 512 AMPLIFIERS. WHICH IS QUOTED AS FOLLOWS: "/B) IN ADDITION. THE TERM -BRAND NAME- INCLUDES IDENTIFICATION OF PRODUCTS BY MAKE AND MODEL.) "/A) IF ITEMS CALLED FOR BY THIS INVITATION FOR BIDS HAVE BEEN IDENTIFIED IN THE SCHEDULE BY A -BRAND NAME OR EQUAL- DESCRIPTION. SUCH IDENTIFICATION IS INTENDED TO BE DESCRIPTIVE. IS TO INDICATE THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WILL BE SATISFACTORY. BIDS OFFERING -EQUAL- PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE INVITATION FOR BIDS. "/B) UNLESS THE BIDDER CLEARLY INDICATES IN HIS BID THAT HE IS OFFERING AN -EQUAL- PRODUCT.

B-164976, NOV. 5, 1968

TO NEFF INSTRUMENT CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF JULY 30, 1968, AND SUBSEQUENT CORRESPONDENCE IN WHICH YOU PROTEST THE AWARD OF A CONTRACT TO DYNAMICS INSTRUMENTATION COMPANY UNDER INVITATION FOR BIDS (IFB) NO. F29650-69 B- 0009, ISSUED BY THE AIR FORCE SPECIAL WEAPONS CENTER, KIRTLAND AIR FORCE BASE, NEW MEXICO. THE INVITATION WAS ISSUED TO FULFILL A REQUIREMENT OF 512 AMPLIFIERS, ELECTRO-INSTRUMENTS, INC. (HONEYWELL), MODEL A-15,"OR EQUAL" , WITH THE FOLLOWING SPECIFICATIONS: "/B) EACH AMPLIFIER TO MEET THE FOLLOWING CRITICAL SPECIFICATIONS: "/1) FOR EACH AMPLIFIER: (A) PRIMARY POWER INPUT: 105/130 VOLTS, 50-400 HZ (B) SIGNAL INPUT MODE: SINGLE ENDED FLOATING (DIFFERENTIAL ACCEPTABLE) (C) INPUT IMPEDANCE: (SINGLE ENDED) GREATER THAN 1 MEGOHM WITH A MAXIMUM SHUNT CAPACITANCE OF (0.001X10-6) FARADS (D) GAIN: CONTINUOUSLY VARIABLE FROM 10 TO 500 (E) GAIN STABILITY: PLUS OR MINUS 0.25 PERCENT (F) NOISE (REFERRED TO INPUT): LESS THAN 10 MICROVOLTS RMS AT GAIN OF 500 (G) DC LINEARITY: PLUS OR MINUS 0.01 PERCENT OF FULL SCALE (H) OUTPUT IMPEDANCE (DC): 0.1 OHM MAXIMUM" GENERAL PROVISION NO. 4 OF THE SUBJECT IFB INCORPORATED ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1206.3 (B), BRAND NAME OR EQUAL, WHICH IS QUOTED AS FOLLOWS: "/B) IN ADDITION, THE FOLLOWING CLAUSE SHALL BE INCLUDED IN THE INVITATION:

BRAND NAME OR EQUAL (NOV. 1961)

(AS USED IN THIS CLAUSE, THE TERM -BRAND NAME- INCLUDES IDENTIFICATION OF PRODUCTS BY MAKE AND MODEL.)

"/A) IF ITEMS CALLED FOR BY THIS INVITATION FOR BIDS HAVE BEEN IDENTIFIED IN THE SCHEDULE BY A -BRAND NAME OR EQUAL- DESCRIPTION, SUCH IDENTIFICATION IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND IS TO INDICATE THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WILL BE SATISFACTORY. BIDS OFFERING -EQUAL- PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE INVITATION FOR BIDS.

"/B) UNLESS THE BIDDER CLEARLY INDICATES IN HIS BID THAT HE IS OFFERING AN -EQUAL- PRODUCT, HIS BID SHALL BE CONSIDERED AS OFFERING A BRAND NAME PRODUCT REFERENCED IN THE INVITATION FOR BIDS.

"/C) (1) IF THE BIDDER PROPOSES TO FURNISH AN -EQUAL- PRODUCT, THE BRAND NAME, IF ANY, OF THE PRODUCT TO BE FURNISHED SHALL BE INSERTED IN THE SPACE PROVIDED IN THE INVITATION FOR BIDS, OR SUCH PRODUCT SHALL BE OTHERWISE CLEARLY IDENTIFIED IN THE BID. THE EVALUATION OF BIDS AND THE DETERMINATION AS TO EQUALITY OF THE PRODUCT OFFERED SHALL BE THE RESPONSIBILITY OF THE GOVERNMENT AND WILL BE BASED ON INFORMATION FURNISHED BY THE BIDDER OR IDENTIFIED IN HIS BID, AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY.

AFTER BIDS WERE OPENED A TECHNICAL EVALUATION OF THE ITEMS OFFERED WAS MADE BEGINNING WITH THE LOWEST BIDDER, DYNAMICS INSTRUMENTATION COMPANY, WHICH OFFERED ITS MODEL 7514. THIS COMPANY HAD SUBMITTED A TECHNICAL BROCHURE WITH ITS BID WHICH CONTAINED THE FOLLOWING EXCERPT APPLICABLE TO THE VARIOUS SIZES AND OPTIONS AVAILABLE IN THE MODEL 7514 SERIES: "OUTPUT IMPEDANCE - 0.5 OHM IN SERIES WITH THE PARALLEL COMBINATION OF 50 UH AND 22 OHMS.' COGNIZANT PERSONNEL AT THE PROCURING ACTIVITY DETERMINED, HOWEVER, THAT THE MODEL WOULD MEET THE 0.1 OHM IMPEDANCE SPECIFICATION SET OUT IN THE IFB, BASED ON ANOTHER PROVISION, QUOTED AS FOLLOWS, FROM AN OPERATIONS MANUAL OF THE COMPANY WHICH THE PROCURING ACTIVITY HAD IN ITS POSSESSION AT BID OPENING. "2 18 - THE OUTPUT IMPEDANCE IN THE ZERO TO 200 HZ RANGE IS BASICALLY RESISTIVE, AND IS LESS THAN 0.1 OHM AT THE AMPLIFIER. THE SPECIFICATION OF 0.5 OHM INCLUDES CABLES AND CONNECTION RESISTANCE.'

THE ACTIVITY MAINTAINS THAT THIS STATEMENT MODIFIES THE BROCHURE EXCERPT, LISTED ABOVE, TO SHOW THAT THE COMPANY WAS OFFERING AN AMPLIFIER CONFORMING TO THE OUTPUT IMPEDANCE REQUIREMENT. ADDITIONALLY, IN A TEST CONDUCTED BY DYNAMICS' EMPLOYEES, BUT WITNESSED AND APPROVED BY THE PROCURING ACTIVITY'S PROJECT ENGINEER, THE OUTPUT IMPEDANCE OF THE SUBJECT MODEL WAS MEASURED AT LESS THAN 0.1 OHM. BECAUSE OF THESE REASONS, DYNAMICS WAS DETERMINED TO BE THE LOWEST RESPONSIVE BIDDER UNDER THE IFB, AND AS THE ITEMS WERE URGENTLY NEEDED AN AWARD WAS MADE TO THE COMPANY ON AUGUST 9, 1968, PRIOR TO OUR RESOLUTION OF YOUR PROTEST.

IN YOUR CORRESPONDENCE WITH OUR OFFICE YOU HAVE RAISED SEVERAL OBJECTIONS CONCERNING THE SUBJECT AWARD WHICH ARE BRIEFLY SUMMARIZED AS FOLLOWS: (1) THE SPECIFICATION OF 0.5 OHM OUTPUT IMPEDANCE IN DYNAMICS' DESCRIPTIVE LITERATURE SHOULD PREVAIL OVER THE LISTING CONTAINED IN THE OPERATIONS MANUAL BECAUSE THE LATTER STIPULATION IS AMBIGUOUS; (2) THE TEST CONDUCTED BY DYNAMICS FOR THE AIR FORCE IS OF QUESTIONABLE VALIDITY BECAUSE IT WAS NOT PERFORMED BY PROCURING ACTIVITY PERSONNEL; (3) AN INDEPENDENT TEST OF MODEL 7514 OBTAINED AT YOUR EXPENSE DEMONSTRATES THAT THE OUTPUT IMPEDANCE LEVEL OF THE DEVICE EXCEEDS 0.1 OHM.

WHEN A REQUIREMENT IS PROCURED ON A "BRAND NAME OR EQUAL" BASIS, AS IN OTHER TYPES OF PROCUREMENTS, IT IS PRIMARILY THE FUNCTION OF THE PROCURING AGENCY TO DETERMINE WHETHER THE PRODUCTS OFFERED BY BIDDERS MEET THE SPECIFICATION REQUIREMENTS. 17 COMP. GEN. 554; B-157524, OCTOBER 18, 1965; B-154692, OCTOBER 16, 1964. WE WILL NOT DISPUTE SUCH DETERMINATIONS UNLESS THEY LACK A REASONABLE FACTUAL BASIS.

YOU MAINTAIN THAT THE ABOVE-CITED MANUAL EXCERPT IS AMBIGUOUS AS TO THE PRECISE LOCATION OF THE 0.1 OHM OUTPUT IMPEDANCE MEASUREMENT SINCE THE WORD AMPLIFIER, AS USED IN THE MANUAL, CAN HAVE THREE POSSIBLE MEANINGS, AND THAT AS USED IN THE REFERENCED EXCERPT ACTUALLY REFERS TO MEASUREMENT OF THE OUTPUT IMPEDANCE AT THE INTERNAL INPUT AMPLIFIER MODULE, RATHER THAN THE IMPEDANCE LEVEL AT THE TERMINAL CONNECTOR OF THE OVERALL 7514 MODEL, WHICH YOU SAY IS THE PROPER MEASUREMENT POSITION. WE ARE UNABLE TO SUBSTANTIATE THIS CONTENTION FROM EXAMINATION OF THE PRESENT RECORD; MOREOVER, THE PROCURING ACTIVITY MAINTAINS THE EXCERPT REFERS TO MEASUREMENT AT THE TERMINAL OF THE OVERALL MODEL, AS YOU CONTEND IT SHOULD BE, RATHER THAN AT ANY INTERNAL COMPONENT.

YOU ALSO IMPLY THAT THE TEST OF THE MODEL 7514 IS OF QUESTIONABLE VALIDITY SINCE IT WAS CONDUCTED BY DYNAMICS' EMPLOYEES WITH THE COMPANY'S OWN EQUIPMENT. IN THIS REGARD THE PROCURING ACTIVITY'S ENGINEER HAS INFORMED US THAT HE VISUALLY INSPECTED THE AMPLIFIER TO MAKE SURE THAT IT CONFORMED TO THE DESIGN INDICATED ON DRAWING D36315 OF THE MANUAL, AND THAT HE OBSERVED ALL EQUIPMENT USED IN THE TEST. WHILE THESE PROCEDURES DID NOT PREVENT THE POSSIBILITY THAT THE TEST EQUIPMENT OR THE AMPLIFIER MAY HAVE BEEN ALTERED TO PRODUCE THE DESIRED RESULT, WE BELIEVE THEY REASONABLY PROTECTED AGAINST THIS POSSIBILITY, ACCORDINGLY, THE MEASUREMENTS THUS OBTAINED APPEAR TO BE AT LEAST AS PROBATIVE OF THE ACTUAL OUTPUT IMPEDANCE LEVEL OF THE MODEL 7514 AS THE TEST RESULTS OBTAINED BY YOU.

WE HAVE ALSO BEEN ADVISED THAT YOU WITNESSED A TEST OF THE FIRST SHIPMENT OF THE AMPLIFIERS DELIVERED UNDER THE CONTRACT, AND THAT THE DEVICES TESTED MET THE REQUIRED OUTPUT IMPEDANCE LEVEL SPECIFIED IN THE IFB. YOU HAVE ALLEGED THAT THE AMPLIFIERS MET THIS SPECIFICATION BECAUSE THEIR INTERNAL COMPONENTS WERE SUBSTANTIALLY REVISED FROM THE DESIGN FEATURES ON WHICH THE AIR FORCE ORIGINALLY EVALUATED DYNAMICS' BID.

ON OCTOBER 10, 1968, THE DEPARTMENT FORWARDED A REPORT SUBMITTED BY KIRTLAND AIR FORCE BASE ON THE SIGNIFICANCE OF THESE MODIFICATIONS IN WHICH ENGINEERING PERSONNEL AT THE BASE ADMIT THAT THE CHANGES COULD EFFECT THE OUTPUT IMPEDANCE LEVEL OF THE DEVICES BUT THAT THE PRECISE EFFECT COULD NOT BE DETERMINED WITHOUT MAKING A DETAILED ANALYSIS OF THE COMPONENTS. THE AIR FORCE HAS ADVISED US THAT IT WILL NOT UNDERTAKE SUCH AN EVALUATION. WE THEREFORE MAY BE JUSTIFIED IN ASSUMING, AS YOU CONTEND, THAT THE ALTERATION OF CERTAIN OF THE AMPLIFIERS' COMPONENTS FROM THE SIZE AND POSITION OF THE PARTS AS INDICATED ON DRAWING D36315 MAY HAVE BEEN EFFECTED TO ASSURE COMPLIANCE WITH THE OUTPUT IMPEDANCE SPECIFICATION; HOWEVER, SINCE THE DELIVERED AMPLIFIERS MEET ALL REQUIRED SPECIFICATIONS, AND WE HAVE NO LEGAL BASIS TO CONSIDER THE CONTRACTING OFFICER'S PRE-AWARD DECISION IMPROPER IN THE LIGHT OF THE INFORMATION THEN AVAILABLE TO HIM, WE CANNOT NOW QUESTION THE VALIDITY OF THE CONTRACT CREATED BY THE SUBJECT AWARD.