B-165605, JAN. 17, 1969

B-165605: Jan 17, 1969

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TO AMPEX CORPORATION: REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 6. THIS SPECIFICATION WAS SUPPLEMENTED BY ESO DRAWING 624082466-1 REV. THE ADMINISTRATIVE REPORT INDICATES THAT YOUR FIRM WAS THE CONTRACTOR ON THE LAST PRIOR PROCUREMENT OF SOUND RECORDING TAPE PRODUCED IN ACCORDANCE WITH REVISION A OF ESO DRAWING 624082466-1. YOU FILED YOUR PROTEST WITH THIS OFFICE AFTER YOU WERE UNSUCCESSFUL IN OBTAINING WAIVER OF QUALIFICATION APPROVAL AND AN ALTERNATE ABRASIVENESS TEST FOR THE WEAR AND ABRASIVENESS TEST SET FORTHIN PARAGRAPH 4 OF THE ESO DRAWING. "/2) THIS SUPPLEMENTARY SPECIFICATION IS. A REVISION OR AN AMENDMENT TO A SUPPLY STANDARD WHICH IS A -DOCUMENT PROJECT- REQUIRING COORDINATION IN ACCORDANCE WITH POLICIES PROCEDURES DESCRIBED IN CHAPTER II OF DEFENSE STANDARDIZATION MANUAL 4120.3-M.

B-165605, JAN. 17, 1969

TO AMPEX CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 6, 1968, PROTESTING AGAINST THE AWARD OF ANY CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. N00126-69-B-0128, ISSUED BY THE NAVY ELECTRONICS SUPPLY OFFICE (ESO), GREAT LAKES, ILLINOIS, ON OCTOBER 10, 1968.

THE ABOVE REFERENCED IFB CALLED FOR THE PROCUREMENT OF SOUND RECORDING TAPE AS A QUALIFIED PRODUCT IN ACCORDANCE WITH SPECIFICATION W-T-0070/4 (NAVY-SHIPS). THIS SPECIFICATION WAS SUPPLEMENTED BY ESO DRAWING 624082466-1 REV. B WHICH REQUIRED TAPES QUALIFIED UNDER W-T 0070 WHICH SHOULD ALSO MEET ADDITIONAL REQUIREMENTS CONCERNING PHYSICAL DIMENSIONS, MOUNTING AND WINDING, WEAR AND ABRASIVENESS, DROPOUTS, CONDUCTIVITY AND ACCEPTABLE TESTING AS SET FORTH IN REVISION B, DATED SEPTEMBER 5, 1968.

THE ADMINISTRATIVE REPORT INDICATES THAT YOUR FIRM WAS THE CONTRACTOR ON THE LAST PRIOR PROCUREMENT OF SOUND RECORDING TAPE PRODUCED IN ACCORDANCE WITH REVISION A OF ESO DRAWING 624082466-1. REVISION B, USED IN THE INSTANT PROCUREMENT, DIFFERS FROM REVISION A PRINCIPALLY IN THAT IT REQUIRES QUALIFICATION APPROVAL UNDER W-T-0070 AND IN PARAGRAPH 4 SUBSTITUTES A WEAR AND ABRASIVENESS TEST PRESCRIBED BY THE NAVAL ELECTRONICS SYSTEMS COMMAND.

YOU FILED YOUR PROTEST WITH THIS OFFICE AFTER YOU WERE UNSUCCESSFUL IN OBTAINING WAIVER OF QUALIFICATION APPROVAL AND AN ALTERNATE ABRASIVENESS TEST FOR THE WEAR AND ABRASIVENESS TEST SET FORTHIN PARAGRAPH 4 OF THE ESO DRAWING. THE CONCLUDING PARAGRAPH OF YOUR TELEGRAM SUMMARIZES YOUR POSITION REGARDING THE ABOVE REFERENCED IFB AS FOLLOWS:

"/1) THE REFERENCED IFB REQUIRES THE PROCUREMENT OF A QUALIFIED PRODUCT WHICH MEETS THE ADDITIONAL REQUIREMENTS OF THE SPECIFICATION SET FORTH IN ESO DRAWING 624082466-1 REV B;

"/2) THIS SUPPLEMENTARY SPECIFICATION IS, THEREFORE, A REVISION OR AN AMENDMENT TO A SUPPLY STANDARD WHICH IS A -DOCUMENT PROJECT- REQUIRING COORDINATION IN ACCORDANCE WITH POLICIES PROCEDURES DESCRIBED IN CHAPTER II OF DEFENSE STANDARDIZATION MANUAL 4120.3-M;

"/3) THAT FAILURE TO OBSERVE THESE POLICIES AND PROCEDURES HAS:

"/A) DEPRIVED AMPEX OF THE OPPORTUNITY OF QUALIFYING AND OFFERING AN ESTABLISHED PRODUCT WHICH WILL MEET THE SPECIFICATIONS SET FORTHIN SPECIFICATIONS W-T-0070, W-T-0070/4 (NAVY-SHIPS) AND ESO DRAWING 624082466 -1 REV B, AND

"/B) RESULTED IN THE DRAFTING OF A SPECIFICATION IN A MANNER THAT:

"/1) DOES NOT PERMIT FREE AND FULL COMPETITION CONSISTENT WITH THE PROCUREMENT OF THE PROPERTY AND SERVICES NEEDED BY YOUR AGENCY,

"/2) IS CONTRARY TO FEDERAL LAW AND REGULATION.'

YOU HAVE ALSO EMPHASIZED IN YOUR TELEGRAM THAT THE ESO DRAWING IS NOT TO BE FOUND IN THE DEPARTMENT OF DEFENSE INDEX OF SPECIFICATIONS AND STANDARDS. THE ADMINISTRATIVE AGENCY'S ANSWER TO THIS CONTENTION IS THAT THE DRAWING DOES NOT PURPORT TO AFFECT THE QUALIFIED PRODUCT PROCEDURE OF THE BASIC SPECIFICATIONS, BUT MERELY SPECIFIES THE DETAIL REQUIREMENTS NECESSARY TO IMPLEMENT THE BASIC SPECIFICATIONS AND BECAUSE OF THE EXTREMELY CRITICAL APPLICATION FOR THE PARTICULAR TAPE, PROVIDES SUPPLEMENTAL QUALITY ASSURANCE REQUIREMENT.

WE MUST AGREE WITH THE AGENCY IN THIS RESPECT, IN THAT IT APPEARS THAT THE REQUIREMENT AS TO WEAR AND ABRASIVENESS IS, IN FACT NOT AN AMENDMENT TO THE BASIC SPECIFICATION WHICH IS INTENDED TO AFFECT THE QUALIFICATION PROCEDURE THEREUNDER, BUT A SUPPLEMENTAL QUALITY ASSURANCE REQUIREMENT IN ADDITION TO THE QUALIFICATION LISTING, APPLICABLE TO THE TAPE TO BE PURCHASED ON THIS PARTICULAR PROCUREMENT, AND DICTATED BY THE EXTREMELY CRITICAL APPLICATION INVOLVED. SINCE THE DEFENSE STANDARDIZATION MANUAL APPENDIX IV-A, SECTION 101,SPECIFICALLY PROVIDES THAT QUALIFICATION DOES NOT CONSTITUTE WAIVER OF THE REQUIREMENT FOR EITHER IN-PROCESS OR OTHER INSPECTION OR FOR MAINTENANCE OF QUALITY CONTROL MEASURES SATISFACTORY TO THE GOVERNMENT, THE ,DOCUMENT PROJECT" PROVISIONS YOU REFERENCED FROM CHAPTER II OF THE DEFENSE STANDARDIZATION MANUAL DO NOT APPEAR TO BE FOR APPLICATION.

WE SEE NO REASON WHY THE IFB IN THIS CASE PROHIBITS FREE AND FULL COMPETITION OR IS CONTRARY TO FEDERAL LAW OR REGULATION. NO EVIDENCE HAS BEEN PRESENTED THAT YOU WERE EVER DENIED THE OPPORTUNITY TO QUALIFY YOUR PRODUCT IN ACCORDANCE WITH SPECIFICATIONS W-T-0070 AND W-T 0070/4; IN FACT, WE ARE ADVISED THAT YOU ARE ONE OF SIX SOURCES LISTED ON THE QUALIFIED PRODUCTS LIST FOR THE ITEM THEREUNDER FROM WHOM BIDS WERE SOLICITED. IT ALSO IS REPORTED THAT BIDS WERE RECEIVED FROM TWO OTHER FIRMS, AND THERE IS NO INDICATION THAT THEY HAD ANY GREATER OPPORTUNITY THAN YOU TO MEET THE INVITATION REQUIREMENTS.

IN CONCLUSION, SINCE THE ESTABLISHMENT OF A QUALIFIED PRODUCTS LIST IS SOLELY FOR THE GOVERNMENT'S BENEFIT (B-158096, MARCH 8, 1966), AND WE HAVE CONSISTENTLY HELD THAT THE CONTRACTING AND ADMINISTRATIVE OFFICERS OF THE GOVERNMENT ARE EMPOWERED TO DETERMINE THE NEED FOR EQUIPMENT TO MEET PARTICULAR SPECIFICATIONS AND THAT SUCH DETERMINATIONS ARE CONTROLLING IN THE ABSENCE OF CAPRICIOUS OR ARBITRARY ACTION (40 COMP. GEN. 35 (1960), 36 ID. 251 (1956), 17 ID. 554 (1938) (, WE FIND ON THE RECORD BEFORE US NO REASON TO QUESTION THE ACTIONS OF THE PROCURING OFFICIALS IN THIS CASE, AND YOUR PROTEST IS THEREFORE DENIED.