B-167421, JAN. 23, 1970

B-167421, JAN. 23, 1970

BID PROTEST--DESCRIPTIVE LITERATURE DECISION DENYING PROTEST OF VOLUMETRICS, INC; AGAINST AWARD TO USKA INSTRUMENT CO. BY SAN ANTONIO AIR MATERIEL AREA ON BASIS OF DISCLOSURE OF PROPRIETARY DATA AND DEFECTIVE DESCRIPTIVE LITERATURE. WHILE SIMILARITY BETWEEN PROTESTANT'S LITERATURE AND SUCCESSFUL BIDDER'S DOES APPEAR TO RAISE QUESTION AS TO WHETHER PLAGIARISM OCCURRED ON BASIS OF RECORD INFORMATION WAS NOT RELEASED BY PERSON WHO WAS A GOVERNMENT EMPLOYEE. DETERMINATION THAT SUCCESSFUL BIDDER'S DESCRIPTIVE DATA COMPLIED WITH SPECIFICATIONS AND MET NEEDS OF GOVERNMENT HAS NOT BEEN FOUND TO HAVE BEEN MADE IN BAD FAITH OR IS WITHOUT SUBSTANTIAL GROUNDS. THEREFORE AWARD IS NOT SUBJECT TO OBJECTION.

TO VOLUMETRICS, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 30, 1969, WITH ENCLOSURES, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO RUSKA INSTRUMENT COMPANY (RUSKA) UNDER INVITATION FOR BIDS (IFB) NO. F41608-69-B-1203, ISSUED BY THE DEPARTMENT OF THE AIR FORCE, SAN ANTONIO AIR MATERIEL AREA (SAAMA), KELLY AIR FORCE BASE, TEXAS.

THE ABOVE-REFERENCED IFB, ISSUED ON FEBRUARY 19, 1969, TO 53 PROSPECTIVE BIDDERS, WAS FOR THE SUPPLY OF 165 PRIMARY LOW PRESSURE STANDARD AUXILIARY UNITS, "VOLUMENTRICS MODEL 10630 OR EQUAL. THIS UNIT MUST BE COMPATIBLE WITH THE CONSOLIDATED ELECTRODYNAMICS CORPORATION (CEC) MODEL 6-201 PRIMARY PRESSURE STANDARD WITH WHICH IT WILL BE USED." THE IFB FURTHER PROVIDED IN PERTINENT PART IN ITS SCHEDULE SECTION I, PARTS V AND IX, RESPECTIVELY:

"DESCRIPTIVE LITERATURE IS REQUIRED TO EVALUATE IF THE EQUIPMENT OFFERED MEETS THE PARAMETERS OF THE BRAND NAME AND IF THE ITEMS WHEN ASSEMBLED WOULD BE COMPATIBLE WITH THE CEC TYPE 6-201 PRIMARY PRESSURE STANDARD. DESCRIPTIVE LITERATURE SUBMITTED IN RESPONSE TO THIS SOLICITATION SHALL BE IN ACCORDANCE WITH THE REQUIREMENTS ESTABLISHED BY THE CLAUSE ENTITLED "DESCRIPTIVE LITERATURE" CONTAINED HEREIN."

"PART IX - 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 PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO *.

"(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.

"(1) BLOCK DIAGRAM SHOWING TYPES OF CIRCUITS AND FUNCTION AND A DRAWING TO SHOW HOW THE UNIT WHEN ASSEMBLED WOULD BE MADE COMPATIBLE WITH A CEC TYPE 6-201 PRIMARY PRESSURE STANDARD.

"(2) SCHEMATIC SHOWING VALUES, RATING, AND TOLERANCE OF THE BASIC UNIT AND AUXILIARY EQUIPMENT.

"(3) DESIGN FEATURES EMPHASIZING PLACEMENT OF UNITS FOR UTILITY OF OPERATION.

"(4) DESIGN FEATURES EMPHASIZING COMMERCIALLY AVAILABLE EQUIPMENT AND SPARES. DESIGN FEATURES EMPHASIZING SUFFICIENT RUGGEDNESS TO WITHSTAND NORMAL TRANSPORTATION WITHOUT AFFECTING ACCURACY. * * *"

THE FOLLOWING BIDS WERE RECORDED AT THE BID OPENING ON MARCH 21, 1969:

RUSKA INSTRUMENT CORPORATION $ 98,340.00

VOLUMETRICS 136,950.00 THE DESCRIPTIVE LITERATURE SUBMITTED WITH EACH BID WAS FORWARDED TO THE AEROSPACE GUIDANCE AND METROLOGY CENTER (AGMC), NEWARK AIR FORCE STATION, OHIO, FOR TECHNICAL EVALUATION. BY LETTER OF APRIL 25, 1969, AGMC ADVISED SAAMA THAT EACH BIDDER'S DESCRIPTIVE LITERATURE WAS ACCEPTABLE AND MET THE PROVISIONS OF SCHEDULE SECTION I, PART IX OF THE IFB, QUOTED ABOVE.

WHILE THE DESCRIPTIVE LITERATURE WAS BEING EVALUATED BY AGMC, REPRESENTATIVES OF YOUR FIRM TWICE EXAMINED THE RUSKA BID. THESE EXAMINATIONS LED YOU TO PROTEST TO THE AIR FORCE AGAINST ANY AWARD TO RUSKA. THE SUBSTANCE OF YOUR LETTERS OF PROTEST DATED MARCH 31 AND APRIL 3, 1969, WAS THAT AN AIR FORCE EMPLOYEE, WHILE AT THE RUSKA PLANT IN FEBRUARY IN CONNECTION WITH AN UNRELATED CONTRACT, SHOWED TO RUSKA YOUR INSTRUCTION MANUAL FOR THE VOLUMETRICS MODEL 10630 PRIMARY LOW STANDARD AUXILIARY. YOU CLAIMED THAT THIS INFORMATION WAS SHOWN TO RUSKA TO THE EXCLUSION OF ALL OTHER PROSPECTIVE BIDDERS, IN VIOLATION OF THE TERMS OF THE SOLICITATION, AND THAT WITHOUT THIS INFORMATION RUSKA COULD NOT HAVE FORMULATED A RESPONSIVE BID. AN INVESTIGATION OF THESE ALLEGATIONS WAS MADE BY THE AIR FORCE,WHICH BY LETTER OF JUNE 10, 1969, ADVISED YOU THAT THE PROTEST WAS DISALLOWED "AS BEING WITHOUT ANY REASONABLE DEGREE OF FOUNDATION." AWARD WAS MADE TO RUSKA LATER THAT DAY.

ON JUNE 23, 1969, A REPRESENTATIVE OF YOUR COMPANY AGAIN EXAMINED THE RUSKA BID AND ACCOMPANYING DESCRIPTIVE LITERATURE, AFTER WHICH YOU PROTESTED TO OUR OFFICE AGAINST AWARD TO RUSKA. YOUR JUNE 30, 1969, LETTER ADVANCES TWO ARGUMENTS. FIRST, YOU CONTEND THAT CERTAIN OF YOUR PRODUCTS, AND A DATA SHEET AND TECHNICAL MANUAL FOR YOUR MODEL 10630 PRIMARY LOW PRESSURE STANDARD AUXILIARY, WERE SHOWN BY NEWARK AIR FORCE STATION PERSONNEL TO RUSKA, TO THE EXCLUSION OF ALL OTHER BIDDERS. YOU STATE THAT THIS WAS IN VIOLATION OF STANDARD FORM 33A, PARAGRAPH 3, A PART OF THE INVITATION, WHICH PROVIDED:

"ANY EXPLANATION DESIRED BY AN OFFEROR REGARDING THE MEANING OR INTERPRETATION OF THE SOLICITATION, DRAWINGS, SPECIFICATIONS, ETC; MUST BE REQUESTED IN WRITING AND WITH SUFFICIENT TIME ALLOWED FOR A REPLY TO REACH OFFERORS BEFORE THE SUBMISSION OF THEIR OFFERS. ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE THE AWARD OF THE CONTRACT WILL NOT BE BINDING. ANY INFORMATION GIVEN TO A PROSPECTIVE OFFEROR CONCERNING A SOLICITATION WILL BE FURNISHED TO ALL PROSPECTIVE OFFERORS AS AN AMENDMENT TO THE SOLICITATION, IF SUCH INFORMATION IS NECESSARY TO OFFERORS IN SUBMITTING OFFERS ON THE SOLICITATION OR IF THE LACK OF SUCH INFORMATION WOULD BE PREJUDICIAL TO UNINFORMED OFFERORS."

SECOND, YOU ASSERT THAT MUCH OF THE RUSKA DESCRIPTIVE LITERATURE WAS TRANSCRIBED FROM YOUR PRODUCT LITERATURE. YOU CLAIM THAT RUSKA'S DESCRIPTIVE LITERATURE WAS INADEQUATE TO PERMIT AN EVALUATION OF THE EQUIVALENCY OF ITS PRODUCT WITH THE BRAND NAME ITEM OR THE COMPATIBILITY OF THE RUSKA PRODUCT WITH THE CEC MODEL 6-201 PRIMARY PRESSURE STANDARD. THEREFORE, YOU MAINTAIN THAT THE RUSKA BID SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE.

IN SUPPORT OF YOUR FIRST CONTENTION, YOU HAVE DISCUSSED PORTIONS OF RUSKA'S DESCRIPTIVE LITERATURE WHICH ARE IDENTICAL WITH OR SIMILAR TO THE PRODUCT DATA SHEET AND INSTRUCTION MANUAL FOR YOUR MODEL 10630 PRIMARY LOW PRESSURE STANDARD AUXILIARY. SINCE YOU ADVISE THAT ACCESS TO THIS INFORMATION WAS RESTRICTED, AND THE INFORMATION HAD NOT BEEN DIVULGED TO RUSKA BY YOU, YOU CONTEND THAT THE GOVERNMENT FURNISHED IT TO RUSKA. YOU HAVE AGAIN ALLEGED THAT YOUR PRODUCT INFORMATION WAS PROVIDED BY AN AIR FORCE EMPLOYEE, WHO VISITED THE RUSKA PLANT FROM FEBRUARY 17-19, 1969, WHILE HAVING A COPY OF YOUR INSTRUCTION MANUAL IN HIS POSSESSION.

IT IS ADMINISTRATIVELY REPORTED THAT THE PURPOSE OF THE AIR FORCE EMPLOYEE'S VISIT TO THE RUSKA PLANT WAS TO RESOLVE TECHNICAL DIFFICULTIES UNDER ANOTHER GOVERNMENT CONTRACT. THE EMPLOYEE WAS THEN TO PROCEED TO DAVIS-MONTHAN AIR FORCE BASE TO INSTRUCT GOVERNMENT TECHNICIANS ON THE USE OF THE PROPOSED NEW AUXILIARY UNIT. YOUR LITERATURE WAS CHOSEN FOR THIS INSTRUCTION BECAUSE VOLUMETRICS' EQUIPMENT HAD BEEN SUPPLIED UNDER A PRIOR CONTRACT AND BECAUSE THE BIDS HAD NOT YET BEEN OPENED UNDER THE INSTANT PROCUREMENT. THUS, THE EXACT CONFIGURATION OF A RUSKA UNIT WAS UNKNOWN, ALTHOUGH IT WAS ASSUMED IT WOULD BE SIMILAR TO YOURS PURSUANT TO THE INSTANT BRAND NAME "OR EQUAL" SOLICITATION. WITH RESPECT TO HIS VISIT TO THE RUSKA FACILITY, THE AIR FORCE EMPLOYEE BY AFFIDAVIT OF MAY 7, 1969, HAS STATED:

"ON 16 FEBRUARY 1969, I PROCEEDED TO THE RUSKA PLANT UNDER GOVERNMENT ORDERS T-161. I ARRIVED AT THE PLANT 17 FEBRUARY 1969, AND STAYED UNTIL MY MISSION REGARDING AIR FORCE CONTRACT F41608-68-C-7915 WAS COMPLETED 19 FEBRUARY 1969. I WAS CLEARED TO ENTER THE PLANT BY SAAMA MESSAGE SAPIMB 122126Z FEBRUARY 69. THE ACO, MR. W. DELEON, ACCOMPANIED ME INTO THE PLANT. I CARRIED A BRIEF CASE WHICH CONTAINED A STANDARD COMMERCIAL MANUAL FOR THE VOLUMETRICS MODEL 10630 PRIMARY LOW PRESSURE STANDARD AUXILIARY. THIS MANUAL WAS REQUIRED TO PERFORM THE SECOND PART OF MY MISSION, I.E. THE TRAINING OF TECHNICIANS AT DAVIS-MONTHAN AIR FORCE BASE. TO MY KNOWLEDGE, THIS STANDARD COMMERCIAL MANUAL WAS NOT REMOVED FROM MY BRIEF CASE, NOR MADE AVAILABLE TO ANY PERSON OR PERSONS, WHILE I VISITED THE RUSKA PLANT. I COMPLETED MY MISSION AT DAVIS-MONTHAN AFB ON 7 MARCH 1969 AND RETURNED TO THE AEROSPACE GUIDANCE AND METROLOGY CENTER, NEWARK AIR FORCE STATION, NEWARK, OHIO."

WE HAVE AFFORDED RUSKA THE OPPORTUNITY TO COMMENT UPON YOUR ALLEGATIONS AND BY LETTER OF JANUARY 9, 1970, THAT FIRM STATED ITS POSITION AS:

"AT NO TIME PRIOR TO BID SUBMISSION, OR AFTER, DID RUSKA INSTRUMENT CORPORATION HAVE ACCESS TO ANY VOLUMETRICS DATA BY OR THROUGH ANY UNITED STATES GOVERNMENT EMPLOYEE, OR OTHERWISE."

WHILE THE SIMILARITY BETWEEN YOUR LITERATURE AND THAT SUBMITTED BY RUSKA DOES APPEAR TO RAISE A QUESTION AS TO WHETHER PLAGIARISM HAS OCCURRED, BASED ON THE PRESENT RECORD WE MUST CONCLUDE THAT THE INFORMATION CONTAINED IN YOUR INSTRUCTION MANUAL WAS NOT RELEASED TO RUSKA BY A GOVERNMENT EMPLOYEE. IF, IN FACT, SUCH INFORMATION WAS RELEASED BY A PERSON WHO WAS NOT A GOVERNMENT EMPLOYEE, THE MATTER MUST BE REGARDED AS A PRIVATE DISPUTE WHICH IS NOT SUBJECT TO ADJUDICATION BY THIS OFFICE.

IN YOUR LETTER OF JUNE 30, 1969, YOU FURTHER CONTEND THAT:

"* * * THE (RUSKA) PRODUCT OFFERED COULD NOT HAVE BEEN TECHNICALLY EVALUATED AS EITHER EQUIVALENT TO THE BRAND NAME SPECIFIED OR COMPATIBLE WITH THE C.E.C. MODEL 6-201 PRIMARY PRESSURE STANDARD INASMUCH AS THE SUPPORTING DATA REQUIRED BY THE SOLICITATION WAS NOT PROVIDED." YOU HAVE SUBSEQUENTLY REITERATED THIS POSITION AND, MOREOVER, HAVE ASSERTED:

"* * * CERTAIN INFORMATION PERTAINING TO THE MODEL 10630 WAS NOT PUBLISHED IN ANY VOLUMETRICS MANUALS OR CATALOGUES. IT IS, IN FACT, IMPOSSIBLE FOR ANYONE OTHER THAN THE BRAND NAME PRODUCER TO COMPLY WITH THE (DESCRIPTIVE LITERATURE AND BRAND NAME 'OR EQUAL' PROVISIONS) OF SUBJECT IFB.

"WE CONTEND THAT SUBJECT IFB WAS WRITTEN IN SUCH A MANNER AS TO SPECIFICALLY EXCLUDE ANY OTHER OFFEROR. * * *"

HOWEVER, BY LETTER OF APRIL 25, 1969, AGMC ADVISED SAAMA THAT THE DESCRIPTIVE LITERATURE SUBMITTED BY RUSKA HAD BEEN EVALUATED AND WAS ACCEPTABLE. THE SAME CONCLUSION WAS EXPRESSED IN A JULY 28, 1969, LETTER OF AGMC TO SAAMA WHICH STATED:

"* * * OUR RESPONSIBILITY ON THIS SOLICITATION WAS THE EVALUATION PRIOR TO AWARD OF DESCRIPTIVE LITERATURE SUBMITTED AS SPECIFIED IN SCHEDULE I PART IX OF THE SOLICITATION. EACH PROVISION OF THIS REQUIREMENT WAS THOROUGHLY CHECKED AND WAS COMPLIED WITH IN THE RUSKA BID. THE DETAILS OF WHAT THE BIDDER PROPOSED TO FURNISH AS TO BLOCK DIAGRAMS, SCHEMATICS, AND SPECIAL DESIGN AND COMPATIBILITY FEATURES WERE ALL MET. * * *" IT HAS LONG BEEN THE POSITION OF OUR OFFICE THAT WHETHER A PRODUCT OFFERED COMPLIES WITH THE SPECIFICATIONS IS PRIMARILY A MATTER FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY CONCERNED. SUCH DETERMINATIONS, PARTICULARLY THOSE INVOLVING JUDGMENTS AS TO TECHNICAL AND SCIENTIFIC MATTERS, ARE GENERALLY REGARDED BY OUR OFFICE AS BINDING UPON US UNLESS THEY CLEARLY RESULT FROM BAD FAITH OR ARE NOT BASED UPON ANY SUBSTANTIAL GROUNDS. THE BASIS OF THE RECORD BEFORE US, WE CANNOT SAY THAT THE DETERMINATION BY THE AIR FORCE THAT THE RUSKA DESCRIPTIVE LITERATURE COMPLIED WITH THE SPECIFICATIONS AND MET THE NEEDS OF THE GOVERNMENT, WAS MADE IN BAD FAITH OR IS WITHOUT SUBSTANTIAL GROUNDS. CONSEQUENTLY, WE CANNOT PROPERLY QUESTION THIS DETERMINATION. SEE 38 COMP. GEN. 71 (1958); ID. 190 (1958); B-166031, MAY 8, 1969.

WE FIND NO SUPPORT IN THE RECORD FOR YOUR CONTENTION THAT THE AIR FORCE ISSUED THIS BRAND NAME "OR EQUAL" INVITATION FOR BIDS WITH THE INTENTION OF MAKING AN AWARD TO YOUR FIRM AS THE SOLE SOURCE OF THE ITEM. FURTHER, SINCE SUCH A PROCUREMENT PRACTICE WOULD HAVE BEEN OF QUESTIONABLE PROPRIETY, (SEE 16 COMP. GEN. 171, 172-173 (1936); ASPR 1 1206.1 (B) (I) ) THE FAILURE TO AWARD A CONTRACT TO YOU WOULD NOT JUSTIFY A PROTEST.

FOR THE ABOVE REASONS, WE MUST CONCLUDE THAT THERE IS NO ADEQUATE LEGAL BASIS UPON WHICH WE MAY OBJECT TO THE AWARD TO RUSKA, AND YOUR PROTEST IS THEREFORE DENIED.