B-167380, DECEMBER 5, 1969, 49 COMP. GEN. 377

B-167380: Dec 5, 1969

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BID REEVALUATION RECOMMENDED A DECISION BY A CONTRACTING AGENCY TO REJECT A BID THAT AS A FACTUAL MATTER IS DETERMINED NOT TO HAVE MET THE SPECIFICATIONS. PARTICULARLY IF THE DETERMINATION INVOLVES HIGHLY TECHNICAL OR SCIENTIFIC FACTORS WHICH THE UNITED STATES GENERAL ACCOUNTING OFFICE IS NOT EQUIPPED TO JUDGE. WHERE THE REJECTION OF THE LOW BID SUBMITTED UNDER AN INVITATION FOR A COMPLETELY INTEGRATED CLOSED- LOOP LOADING SYSTEM IS BASED ON THE FACT THE DESCRIPTIVE LITERATURE FAILED TO IDENTIFY WITH BID ITEMS. THE REJECTION APPEARS TO BE AN ERRONEOUS INTERPRETATION OR APPLICATION OF THE STANDARDS REQUIRED BY THE INVITATION AND IT IS SUGGESTED. THE SPECIFICATIONS PERTINENT TO THIS PROTEST ARE AS FOLLOWS: 3.1.1 A SOLID STATE FUNCTION GENERATOR SHALL BE FURNISHED TO CREATE AN ELECTRICAL ANALOG OF THE FORM OF LOADING OUTPUT DESIRED.

B-167380, DECEMBER 5, 1969, 49 COMP. GEN. 377

CONTRACTS -- SPECIFICATIONS -- CONFORMABILITY OF EQUIPMENT, ETC., OFFERED -- ADMINISTRATIVE DETERMINATION CONCLUSIVENESS -- BID REEVALUATION RECOMMENDED A DECISION BY A CONTRACTING AGENCY TO REJECT A BID THAT AS A FACTUAL MATTER IS DETERMINED NOT TO HAVE MET THE SPECIFICATIONS, PARTICULARLY IF THE DETERMINATION INVOLVES HIGHLY TECHNICAL OR SCIENTIFIC FACTORS WHICH THE UNITED STATES GENERAL ACCOUNTING OFFICE IS NOT EQUIPPED TO JUDGE, ALTHOUGH GENERALLY ACCEPTED WITHOUT QUESTION, WHERE THE REJECTION OF THE LOW BID SUBMITTED UNDER AN INVITATION FOR A COMPLETELY INTEGRATED CLOSED- LOOP LOADING SYSTEM IS BASED ON THE FACT THE DESCRIPTIVE LITERATURE FAILED TO IDENTIFY WITH BID ITEMS, THE REJECTION APPEARS TO BE AN ERRONEOUS INTERPRETATION OR APPLICATION OF THE STANDARDS REQUIRED BY THE INVITATION AND IT IS SUGGESTED, WITHOUT UNDERTAKING TO DECIDE BID RESPONSIVENESS, THAT THE BID SHOULD BE REEVALUATED, WITH CONSIDERATION GIVEN TO ALL AVAILABLE INFORMATION CONCERNING THE CONFORMANCE OF THE SEVERAL ITEMS OF EQUIPMENT OFFERED TO THE INTENT OF THE SPECIFICATIONS.

TO THE SECRETARY OF THE ARMY, DECEMBER 5, 1969:

WE REFER TO A LETTER OF AUGUST 14, 1969, WITH ENCLOSURES, FROM THE GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, REPORTING ON THE PROTEST OF CGS SCIENTIFIC CORPORATION (CGS) AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. DACA 55-69-B 0017, ISSUED BY THE U.S. ARMY ENGINEER DIVISION, CINCINNATI, OHIO.

THE INVITATION ISSUED ON MAY 29, 1969, SOUGHT THE PROCUREMENT OF A COMPLETELY INTEGRATED AUTOMATIC CLOSED-LOOP LOADING SYSTEM, IN ACCORDANCE WITH THE TECHNICAL SPECIFICATIONS SET FORTH ON PAGES 9 THROUGH 9.6 THEREOF. THE SPECIFICATIONS PERTINENT TO THIS PROTEST ARE AS FOLLOWS:

3.1.1 A SOLID STATE FUNCTION GENERATOR SHALL BE FURNISHED TO CREATE AN ELECTRICAL ANALOG OF THE FORM OF LOADING OUTPUT DESIRED, INCLUDING SINE, HAVERSINE, TRIANGLE, SQUARE AND RAMP FUNCTIONS, EACH DEVELOPED AT FREQUENCIES NOT LESS THAN .005 HZ TO 500 HZ. FREQUENCY RANGES SHALL BE SELECTABLE BY A DECADE MULTIPLIER. THE RAMP SHALL HAVE THE FEATURE OF A MANUAL DWELL POSSIBLE AT RANDOM, WHICH MAY BE SUBSEQUENTLY EITHER CONTINUED OR RESET TO ZERO. CYCLIC FUNCTIONS MAY BE EXERCISED FOR A SINGLE PULSE. THIS UNIT MAY BE PROGRAMMED FOR A GIVEN NUMBER OF CYCLES BY A COUNTER PANEL. THE FUNCTION GENERATOR SHALL HAVE THE FOLLOWING CHARACTERISTICS: OR - 1%; DISTORTION, OR - 0.5%; OUTPUT VOLTAGE (APPROX.) OR - 10 VOLTS. FREQUENCY ACCURACY NOT LESS THAN 1% OF FULL SCALE OF THE SELECTED SCALE.

3.1.2 A COUNTER PANEL SHALL BE FURNISHED COMPLETE WITH AN ELECTROMECHANICAL 6-DIGIT COUNTER, WHICH MAY BE PRESET TO THE DESIRED NUMBER OF CYCLES, A TOTALIZING COUNTER, X10 AND X100 DECADE COUNTER CIRCUIT FOR HIGH FREQUENCY COUNTING, AND EQUIPPED WITH A SELECTOR SWITCH TO CHOOSE THE REPETITIVE FUNCTION DRIVING THE COUNTERS. A MANUAL RESET TOTAL COUNTER SHALL BE PROVIDED. THE MAXIMUM COUNTING RATE IN 25 HZ OR BETTER WHICH IS INCREASED TO 250 AND 2500 HZ WITH THE X10 AND X100 DECADE MULTIPLIERS.

3.1.3 A PHASE SHIFTING CAPABILITY SHALL BE FURNISHED TO OPERATE IN CONJUNCTION WITH THE FUNCTION GENERATOR. OUTPUT SIGNALS TO THE FOURTEEN CONTROLLERS SHALL BE PROVIDED SO THAT ONE CHANNEL MAY BE SELECTED AS THE REFERENCE AND EACH OF THE REMAINING FOURTEEN CHANNELS MAY BE PHASE SHIFTED FROM 0 DEG. TO 360 DEGS. FREQUENCIES SHALL BE SELECTABLE TO AN ACCURACY OF OR - 2 DEGS. OVER THE ENTIRE RANGE.

3.2.5 SYNCHRONIZED PROGRAM RUN/STOP BUTTON WHICH SYNCHRONIZES THE FUNCTION GENERATOR AND PROVIDES FOR SYNCHRONIZATION OF AN EXTERNAL FUNCTION SOURCE SUCH AS MAGNETIC TAPE OR ANALOG COMPUTER.

4.4 THE LOAD END OF EACH ACTUATOR BODY SHALL BE PROVIDED WITH A RECTANGULAR MOUNTING FLANGE WITH FOUR HOLES SUITABLE FOR ATTACHING THE ACTUATOR TO A LOAD REACTION FIXTURE. THE OTHER END SHALL BE PROVIDED WITH A REMOVABLE DOUBLE CLEVIS MOUNT.

6.1.8 LOW PRESSURE BYPASS SWITCH TO ALLOW LOW PRESSURE TURN-ON. IN ADDITION, THE INVITATION INCLUDED THE FOLLOWING REQUIREMENT FOR DESCRIPTIVE LITERATURE (ARTICLE 5 OF THE SPECIAL CONDITIONS):

5. REQUIREMENT FOR DESCRIPTIVE LITERATURE (1960 OCT).

(A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSE OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS SPECIFIED IN PARAGRAPH (C) BELOW.

(B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT IF THE MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE, IT MAY BE CONSIDERED UNDER THE PROVISIONS FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.

(C) IN ACCORDANCE WITH SUBPARAGRAPH (A) ABOVE, THE FOLLOWING INFORMATION AND DESCRIPTIVE DATA SHALL BE FURNISHED:

ONE SET OF DRAWINGS SHOWING SPECIFIED DIMENSIONS OR SCHEMATICS SHALL BE SUPPLIED FOR THE FOLLOWING ITEMS:

CONSOLE LAYOUT

SYSTEM BLOCK DIAGRAM

HYDRAULIC SCHEMATIC

HYDRAULIC ACTUATORS

ONE SET OF DESCRIPTIVE LITERATURE OR OUTLINE SPECIFICATIONS AS NECESSARY TO DESCRIBE COMPLETELY THE NATURE AND CAPABILITIES AND TO INDICATE CLEARLY THEIR CONFORMANCE WITH THE TECHNICAL SPECIFICATIONS SHALL BE SUPPLIED FOR THE FOLLOWING ITEMS:

FUNCTION GENERATOR SERVO AMPLIFIER

COUNTER PANEL ACTUATORS

LOAD CELLS ACTUATOR FUNCTION CURVES

TRANSDUCER CONDITIONS HYDRAULIC POWER UNIT

SERVO VALVES

BIDS WERE OPENED ON JUNE 24, 1969. OF THE FIVE BIDS RECEIVED, CGS SCIENTIFIC CORPORATION'S WAS THE LOWEST AT $179,450, AND MTS SYSTEMS CORPORATION'S (MTS) WAS THE SECOND LOWEST AT $198,875. HOWEVER, ON THE BASIS OF THE DESCRIPTIVE LITERATURE FURNISHED, CGS WAS DETERMINED TO BE NONRESPONSIVE TO THE INVITATION AND WAS INFORMED OF THIS FINDING BY A LETTER DATED JUNE 27, 1969, WHICH OUTLINED THE REASONS FOR REJECTION OF ITS BID ACCORDING TO THE FIRST TECHNICAL REVIEW OF JUNE 26, 1969. CGS PROTESTED THIS DETERMINATION OF NONRESPONSIVENESS TO THE U.S. ARMY ENGINEER DIVISION. A SECOND TECHNICAL REVIEW, DATED JULY 3, 1969, REAFFIRMED THE ORIGINAL FINDING FOR SUBSTANTIALLY THE SAME REASONS. THESE REASONS MAY BE SUMMARIZED AS FOLLOWS:

(1) FREQUENCY STABILITY OF THE HEWLETT-PACKARD 203A FUNCTION GENERATOR DOES NOT MEET THE FREQUENCY STABILITY OF 0.1 PERCENT STATED IN TECHNICAL SPECIFICATION 3.1.1.

(2) THE CGS DESCRIPTIVE LITERATURE DOES NOT INDICATE THAT THE RUN/STOP FEATURE IS USED TO SYNCHRONIZE AN EXTERNAL FUNCTION SOURCE SUCH AS MAGNETIC TAPE OR ANALOG COMPUTER AS REQUIRED BY TECHNICAL SPECIFICATION 3.2.5.

(3) INFORMATION IS NOT PROVIDED BY CGS THAT THE "OFF" SWITCH ON THE MODEL 835 PANEL CAN ALSO BE USED FOR LOW PRESSURE TURN-ON, AS SPECIFIED IN TECHNICAL SPECIFICATION 6.1.8.

(4) LOAD CELLS ARE NOT IDENTIFIED AMONG THE 16 MODELS DESCRIBED AND THEY ARE INCONSISTENTLY SIZED.

IT IS CGS'S POSITION THAT THE CORPS OF ENGINEERS WAS IN ERROR IN REJECTING ITS BID. THE BIDDER MAINTAINS THAT ITS INTERPRETATION OF THE SPECIFICATIONS AS REFLECTED IN ITS DESCRIPTIVE LITERATURE WAS REASONABLE AND THAT AWARD SHOULD BE MADE TO IT.

THE FIRST BASIS UPON WHICH CGS WAS DETERMINED TO BE NONRESPONSIVE WAS THE FAILURE OF ITS PROPOSED SYSTEM TO COMPLY WITH THE FREQUENCY STABILITY REQUIREMENT OF OR - 0.1 PERCENT. THE AGENCY CONSIDERS THIS THE MAJOR AREA OF THE CGS BID'S NONRESPONSIVENESS. THE SECOND TECHNICAL REVIEW, DATED JULY 3, 1969, STATES THAT ALTHOUGH EXACT MODEL 330 FUNCTION GENERATOR INCLUDED IN ITS SYSTEM MEETS THE REQUIRED FREQUENCY STABILITY, THE HEWLETT -PACKARD MODEL 203A FUNCTION GENERATOR, WHICH WAS ALSO INCLUDED, FAILS TO DO SO. THE CGS DESCRIPTIVE LITERATURE ON THE HEWLETT-PACKARD MODEL 203A DISCLOSED THAT THE FREQUENCY STABILITY, INCLUDING WARMUP DRIFT AND LINE VOLTAGE VARIATIONS OF 10 PERCENT, IS OR - 1 PERCENT.

TECHNICAL SPECIFICATION 3.1.1. CALLS FOR A SOLID STATE FUNCTION GENERATOR, WITH A FREQUENCY STABILITY OF 0.1 PERCENT. SPECIFICATION 3.1.3. REQUIRES THAT A PHASE SHIFTING CAPABILITY BE FURNISHED TO OPERATE IN CONJUNCTION WITH THE FUNCTION GENERATOR. THE CGS PROPOSAL, ON PAGE 10, SPECIFIED "EXACT MODEL 330 FUNCTION GENERATOR (SEE ATTACHED DATA SHEET) THIS UNIT FULFILLS ALL THE REQUIREMENTS OF PARAGRAPH 3.1.1 OF THE SPECIFICATIONS." THE NEXT SENTENCE OF THE PROPOSAL LISTED THE HEWLETT- PACKARD MODEL 203A FUNCTION GENERATOR, WITH THE STATEMENT "THIS UNIT PROVIDES THE SINE AND COSINE WAVEFORMS FOR THE VARIABLE PHASE PROGRAMMER."

IT IS OUR UNDERSTANDING THAT A FUNCTION GENERATOR SUCH AS DESCRIBED IN PARAGRAPH 3.1.1 DOES NOT IN ITSELF CONTAIN THE PHASE SHIFTING CAPABILITY CALLED FOR BY PARAGRAPH 3.1.3, AND WE FIND THAT EVERY PROPOSAL SUBMITTED CALLS FOR A SEPARATE DEVICE TO MEET THIS REQUIREMENT, WHICH APPEARS TO BE IN ACCORD WITH THE SPECIFICATION PROVISION THAT THE PHASE SHIFTING CAPABILITY OPERATE "IN CONJUNCTION WITH THE FUNCTION GENERATOR." PARAGRAPH 3.1.3. CONTAINS NO STABILITY OR ACCURACY REQUIREMENT, EXCEPT THAT FREQUENCIES SHALL BE "SELECTABLE TO AN ACCURACY OF OR - 2 DEGS. OVER THE ENTIRE RANGE"--A REQUIREMENT APPARENTLY MET BY THE HEWLETT-PACKARD INSTRUMENT. WE THEREFORE ARE UNABLE TO FIND IN THE RECORD ANY BASIS FOR REJECTION OF THE CGS PROPOSAL, WHICH WE UNDERSTAND IS TO USE THE HEWLETT- PACKARD DEVICE TO SUPPLY THE REQUIRED PHASE-SHIFTING CAPABILITY "IN CONJUNCTION WITH" THE EXACT MODEL 330 FUNCTION GENERATOR.

EVEN IF THE FREQUENCY STABILITY REQUIREMENT OF PARAGRAPH 3.1.1 IS CONSIDERED APPLICABLE TO THE HEWLETT-PACKARD INSTRUMENT OFFERED TO MEET THE REQUIREMENT OF PARAGRAPH 3.1.3, WE NOTE THAT THE BASIS FOR THE DETERMINATION THAT THE HEWLETT-PACKARD ITEM DID NOT MEET THAT REQUIREMENT WAS THE STATEMENT IN THE HEWLETT-PACKARD LITERATURE WHICH READS: "FREQUENCY STABILITY: WITHIN OR - 1% INCLUDING WARMUP DRIFT AND LINE VOLTAGE VARIATIONS OF OR - 10%." THE EXACT MODEL 330 LITERATURE STATES FREQUENCY STABILITY AS: "SHORT TERM (10 MIN.):0.05% LONG TERM (24 HRS): 0.1%." THE SPECIFICATION REQUIREMENT DOES NOT DESCRIBE THE CONDITIONS UNDER WHICH THE REQUIRED STABILITY IS TO BE OBTAINED, AND IT IS CLEAR THAT THE STABILITY OF THE TWO GENERATORS IS NOT STATED ON THE SAME BASIS. VIEW OF THE FACT THAT WE HAVE BEEN FURNISHED WITH A STATEMENT FROM THE MANUFACTURERS OF THE EXACT GENERATOR THAT A ONE HOUR WARMUP PERIOD IS REQUIRED TO STABILIZE THE INSTRUMENT UNDER CONSIDERATION, AND A STATEMENT FROM HEWLETT-PACKARD THAT ITS VARIABLE PHASE GENERATOR WILL GIVE FREQUENCY STABILITY OF 0.05 PERCENT AFTER A 30-MINUTE WARMUP TIME, WE BELIEVE THAT A CONCLUSION THAT THE EXACT GENERATOR OFFERS A HIGHER DEGREE OF FREQUENCY STABILITY THAN THE HEWLETT-PACKARD MODEL WOULD BE HIGHLY QUESTIONABLE, IN THE ABSENCE OF FURTHER INFORMATION OR OF A MORE EXACTLY DEFINED SPECIFICATION REQUIREMENT.

THE REMAINING THREE REASONS FOR WHICH CGS' BID WAS DETERMINED TO BE NONRESPONSIVE APPEAR ALSO TO INVOLVE THE ADEQUACY OF ITS DESCRIPTIVE LITERATURE. IN THE LETTER OF JUNE 27, 1969, WHICH REFERS TO THE SECOND BASIS UPON WHICH THE CGS BID WAS FOUND NONRESPONSIVE, THE CONTRACTING OFFICER STATED THAT THE METHOD FOR THE SYNCHRONIZATION OF AN EXTERNAL FUNCTION SOURCE WAS NOT PROVIDED IN THE DESCRIPTIVE LITERATURE AS REQUIRED BY TECHNICAL SPECIFICATION 3.2.5. HOWEVER, THE SECOND TECHNICAL EVALUATION OF JULY 3, 1969, STATED THAT THE INFORMATION CONCERNING THE "RUN/STOP" FEATURE TO MEET TECHNICAL SPECIFICATION 3.2.5, WAS SUBMITTED BY CGS IN A LETTER SUBSEQUENT TO THE BID OPENING. THE CGS LETTER REFERRED TO IS THAT OF JUNE 28, 1969, ADDRESSED TO THE U.S. ARMY ENGINEERING DIVISION. SUCH LETTER, AMONG OTHER THINGS, STATED THAT THE "RUN/STOP" FEATURE WAS MET ON THE MODEL 878A PANEL. THE RECORD DISCLOSED THAT PAGE 10 OF THE CGS DESCRIPTIVE LITERATURE, SUPPLIED WITH THE INVITATION, STATED:

THE REQUIREMENTS OF PARAGRAPH 3.2.5 ARE MET ON THE MODEL 878A PANEL. THEREFORE, WE MUST CONCLUDE THAT THE LETTER OF JUNE 28, 1969, MERELY DIRECTED THE CONTRACTING OFFICER'S ATTENTION TO THE "RUN/STOP" FEATURE PREVIOUSLY INCLUDED IN CGS DESCRIPTIVE LITERATURE (P. 10) AND WAS PROPERLY FOR CONSIDERATION.

THE THIRD REASON THAT THE CGS BID WAS REJECTED WAS ITS FAILURE TO SPECIFY HOW THE PRESSURE "OFF" SWITCH ON THE MODEL 835 PANEL MET TECHNICAL SPECIFICATIONS 6.1.8 REQUIRING "LOW PRESSURE TURN-ON." THE SECOND TECHNICAL REVIEW, DATED JULY 3, 1969, RECOGNIZED THAT THIS REQUIREMENT WAS APPARENTLY MET BY CGS. HOWEVER, IT IS FURTHER STATED THAT THE PHRASE "FOR RAPID REDUCTION OF HYDRAULIC PRESSURE" CONTAINED IN FEATURE 5 OF CGS' TECHNICAL BULLETIN 201A, TOGETHER WITH THE CGS BULLETIN DESCRIBING MODEL 835 (CONTROL AND INDICATOR PANEL (WHICH HAS A SWITCH LABELED "PRESS" (PRESSURE) "ON" AND "OFF"), LED TO THE INTERPRETATION THAT "OFF" ON THE SWITCH MEANT PRESSURE OFF, I.E. ZERO PRESSURE.

CGS PRESENTS THE ARGUMENT THAT THE CIRCUIT DESCRIBED IN TECHNICAL BULLETIN 201A SHOULD HAVE BEEN IDENTIFIED AS A LOW PRESSURE CIRCUIT. WHILE MODEL 835 CONTROL AND INDICATOR PANEL ONLY DESIGNATES THE SWITCH POSITIONS AS "ON" AND "OFF," CGS STATES THAT THE CIRCUIT PRESSURE IS 30 TO 150 P.S.I. IN THE "OFF" POSITION, WHICH IS LOW COMPARED TO THE NORMAL PRESSURE OF 3,000 P.S.I., AND THEREFORE IT IS CONSIDERED PRESSURE OFF.

WE RECOGNIZE THAT THE LABEL "OFF" ON THE SWITCH MAY BE CONFUSING AND THAT A MORE SUITABLE DESIGNATION OF "ON-LOW" MIGHT HAVE BEEN MORE ACCURATE. HOWEVER, SINCE THE QUESTION PRESENTED IS PRINCIPALLY ONE OF INTERPRETATION WE BELIEVE THE BIDDER'S EXPLANATION, AND THE ACTUAL CHARACTERISTICS AND CAPABILITIES OF THE EQUIPMENT DESCRIBED, SHOULD BE GIVEN EFFECT. THE FOURTH REASON FOR REJECTING THE CGS BID WAS INCONSISTENT SIZING AND INADEQUATE IDENTIFICATION OF THE LOAD CELLS OFFERED IN ITS DESCRIPTIVE LITERATURE. BY LETTER OF JUNE 27, 1969, THE CONTRACTING OFFICER ADVISED CGS THAT ITS SIZING OF LOAD CELLS WAS INCONSISTENT IN STATING THAT "20 KIP LOAD CELL IS USED WITH THE 10 KIP ACTUATOR AND A 10 KIP LOAD CELL IS USED WITH THE 5 KIP ACTUATOR." HOWEVER, THE SECOND TECHNICAL REVIEW, DATED JULY 3, 1969, CONCLUDED THAT THE COMMENT THAT " *** LOAD CELL RATINGS WERE NOT CONSISTENT" WAS OFFERED AS AN OBSERVATION, AND THAT THE INCONSISTENCY WAS NOT CONSIDERED A MAJOR DEVIATION FROM THE SPECIFICATIONS. IN OUR VIEW IT DOES NOT APPEAR TO BE A DEVIATION AT ALL, SINCE THE RATING OF EACH CELL PROPOSED WAS WITHIN THE SPECIFICATION REQUIREMENT. CONCERNING THE INADEQUATE IDENTIFICATION OF THE LOAD CELLS, THE CGS DESCRIPTIVE LITERATURE DESCRIBED THREE TYPES OF LOAD CELLS: GENERAL PURPOSE, PRECISION, AND CALIBRATION, LISTING 7, 7, AND 2 MODELS, RESPECTIVELY. THE SECOND TECHNICAL REVIEW, DATED JULY 3, 1969, STATED THAT THE EVALUATOR " *** COULD NOT IDENTIFY WHICH OF THE 16 MODELS IN THE SUBMITTED LITERATURE WERE PROPOSED. SOME MODELS MEET THE SPECIFICATIONS, OTHERS DID NOT. THE UNDERSIGNED COULD NOT SUPPOSE THAT THE BIDDER (CGS) HAD SELECTED THE CORRECT LOAD CELLS."

IT IS CGS' POSITION THAT REASONABLE ENGINEERING EVALUATION WOULD HAVE EASILY IDENTIFIED THE SUITABLE CELLS, BECAUSE ONLY THE GENERAL PURPOSE TYPES WOULD BE CONSIDERED FOR THE INTENDED USE, AND ONLY TWO OF THESE (MODELS U3G1 50-10K 3MV/V AND U3G2 50-250 3MV/V) ARE SUITABLE FOR ACCURATE DYNAMIC LOADING IN ACCORDANCE WITH THE SPECIFICATIONS.

WE ARE NOT CAPABLE OF DETERMINING FROM AN ENGINEERING STANDPOINT THE CORRECTNESS OF THE CGS CONTENTION. HOWEVER, THE RECORD DISCLOSES THAT CERTAIN OF THE MODELS LISTED IN THE DESCRIPTIVE LITERATURE DO IN FACT MEET THE APPLICABLE TECHNICAL SPECIFICATIONS AND IF CHOICE OF THE PROPER UNITS WOULD INVOLVE ONLY THE APPLICATION OF NORMAL ENGINEERING PRACTICE WE DO NOT BELIEVE THAT THE FAILURE TO DESIGNATE THE PARTICULAR UNITS WOULD JUSTIFY THE ASSUMPTION THAT THE BIDDER WOULD NOT USE THOSE WHICH WOULD CONFORM TO THE SPECIFICATIONS. SEE 39 COMP. GEN. 595 (1960).

GENERALLY, WE DO NOT QUESTION AN AGENCY'S DECISION TO REJECT AN OFFER WHEN IT HAS FOUND, AS A FACTUAL MATTER, THAT THE EQUIPMENT OFFERED DOES NOT MEET THE GOVERNMENT'S ADVERTISED SPECIFICATIONS, PARTICULARLY WHERE THE DETERMINATION INVOLVES HIGHLY TECHNICAL OR SCIENTIFIC FACTORS WHICH WE ARE NOT EQUIPPED TO JUDGE. HOWEVER, WE BELIEVE THAT THE DETERMINATION OF THE CGS BID'S NONRESPONSIVENESS WAS BASED ON AN ERRONEOUS INTERPRETATION OR APPLICATION OF THE STANDARDS PROPERLY REQUIRED BY THE INVITATION.

WE DO NOT UNDERTAKE IN THIS INSTANCE TO DECIDE THAT THE CGS BID IS RESPONSIVE, BUT WE BELIEVE IT SHOULD BE REEVALUATED IN THE LIGHT OF THE VIEWS HERE EXPRESSED, WITH CONSIDERATION OF ALL INFORMATION AVAILABLE CONCERNING THE CONFORMANCE OF THE SEVERAL ITEMS OF EQUIPMENT PROPOSED BY CGS TO THE INTENT OF THE SPECIFICATIONS.

IN OTHER WORDS, UNDER THE CIRCUMSTANCES, WE MUST CONCLUDE THAT THE REASONS STATED IN THE AUGUST 14 REPORT ARE NOT ADEQUATE TO JUSTIFY REJECTION OF THE LOW BID OF CGS, AND WE THEREFORE SUGGEST THAT THE CGS BID BE FURTHER EVALUATED IN ACCORDANCE WITH THE FOREGOING.

WE ARE TRANSMITTING A COPY OF THIS DECISION TO THE PROTESTANT, AND THE FILE FORWARDED WITH THE REPORT OF AUGUST 14 IS RETURNED.