B-170768(1), FEB 17, 1971

B-170768(1): Feb 17, 1971

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THE SYSTEM PROPOSED BY SUCCESSFUL BIDDER WHICH CAN PRODUCE THE REQUIRED RESOLUTION IN 20 SECONDS IS RESPONSIVE IN THAT A REASONABLE BIDDER CONVERSANT WITH THE SUBJECT MATTER SHOULD HAVE INTERPRETED THE RESOLUTION REQUIREMENT AS PERMITTING EITHER THE EQUIPMENT PROPOSED BY PROTESTANT OR SUCCESSFUL LOW BIDDER. THERE WAS NO RESTRICTIVE EFFECT ON COMPETITION. THE INVITATION WAS ISSUED SEPTEMBER 18. SOON AFTER THE INVITATION WAS ISSUED A NUMBER OF FIRMS OBJECTED TO THE SPECIFICATION CONTENDING THAT IT WAS TOO RESTRICTIVE. CERTAIN FEATURES OF THIS AMENDMENT WERE ALSO CRITICIZED AS RESTRICTIVE. AMENDMENT NO. 4 WAS ISSUED. THE FOLLOWING BIDS WERE RECEIVED IN RESPONSE TO THE SOLICITATION: UNIT BID PRICE SYSTRON DONNER $1.

B-170768(1), FEB 17, 1971

BID PROTEST - RESTRICTIVE SPECIFICATION - AMBIGUITY DECISION DENYING PROTEST BY HEWLETT-PACKARD COMPANY, THIRD LOW BIDDER, AGAINST CONTRACT FOR ELECTRONIC COUNTERS IN ACCORDANCE WITH FAA SPECIFICATIONS, ISSUED BY THE GENERAL SERVICES ADMINISTRATION, AND PROPOSED AWARD TO LOW BIDDER, SYSTRON DONNER CORP. WHERE A PORTION OF THE SPECIFICATION CALLS FOR A BASIC ELECTRONIC COUNTER CAPABLE OF PRODUCING A RESOLUTION IN 1 SECOND AND FURTHER THAT "THE CONVERTER UNIT SHALL RETAIN THE ACCURACY AND RESOLUTION OF BASIC COUNTER", THE SYSTEM PROPOSED BY SUCCESSFUL BIDDER WHICH CAN PRODUCE THE REQUIRED RESOLUTION IN 20 SECONDS IS RESPONSIVE IN THAT A REASONABLE BIDDER CONVERSANT WITH THE SUBJECT MATTER SHOULD HAVE INTERPRETED THE RESOLUTION REQUIREMENT AS PERMITTING EITHER THE EQUIPMENT PROPOSED BY PROTESTANT OR SUCCESSFUL LOW BIDDER. FURTHER, AN AMBIGUOUS OR INCORRECT SPECIFICATION DOES NOT REQUIRE CANCELLATION WHERE, AS HERE, THERE WAS NO RESTRICTIVE EFFECT ON COMPETITION.

TO WALD, HARKRADER, NICHOLSON & ROSS:

THIS REFERS TO YOUR LETTER OF DECEMBER 8, 1970, AND OTHER CORRESPONDENCE RECEIVED IN CONNECTION WITH THE PROTEST BY HEWLETT PACKARD COMPANY (HPC) AGAINST THE PROPOSED AWARD OF A CONTRACT TO SYSTRON DONNER CORPORATION UNDER INVITATION NO. FPNGG-Z-16638A, ISSUED BY THE GENERAL SERVICES ADMINISTRATION.

THE INVITATION WAS ISSUED SEPTEMBER 18, 1969, AND CALLED FOR ELECTRONIC COUNTERS IN ACCORDANCE WITH FEDERAL AVIATION ADMINISTRATION SPECIFICATION FAA-E-2397, DATED APRIL 30, 1969, AS AMENDED BY THE INVITATION. SOON AFTER THE INVITATION WAS ISSUED A NUMBER OF FIRMS OBJECTED TO THE SPECIFICATION CONTENDING THAT IT WAS TOO RESTRICTIVE. ON OCTOBER 13, 1969, GSA ISSUED AMENDMENT NO. 2 TO THE INVITATION TO BROADEN THE SPECIFICATION, BUT CERTAIN FEATURES OF THIS AMENDMENT WERE ALSO CRITICIZED AS RESTRICTIVE. AS A RESULT, GSA ISSUED AMENDMENT NO. 3 ON OCTOBER 29, 1969, TO POSTPONE THE BID OPENING "PENDING REVIEW AND CLARIFICATION OF SPECIFICATION REQUIREMENTS." FINALLY, ON MARCH 12, 1970, AMENDMENT NO. 4 WAS ISSUED. THIS AMENDMENT INCLUDED SUBSTANTIAL SPECIFICATION CHANGES AND SET BID OPENING FOR APRIL 16, 1970.

THE FOLLOWING BIDS WERE RECEIVED IN RESPONSE TO THE SOLICITATION:

UNIT BID PRICE

SYSTRON DONNER $1,745

DANA LABORATORIES 1,990

HPC 2,084

MONSANTO COMPANY 2,243

BECKMAN INSTRUMENTS 2,250

ELDORADO ELECTRODATA CORP. 2,431

COMPUTER MEASUREMENTS 2,535.71

JEFFREY YOUNG & COMPANY 3,300 GSA PROPOSES TO MAKE AWARD TO SYSTRON DONNER AS THE LOW BIDDER. HOWEVER, HPC AND A NUMBER OF THE OTHER BIDDERS INCLUDING DANA LABORATORIES PROTEST SUCH AN AWARD ON THE BASIS THAT SYSTRON DONNER IS PROPOSING TO FURNISH EQUIPMENT WHICH DOES NOT MEET THE SPECIFICATION.

THE SPECIFICATION CALLS FOR A BASIC ELECTRONIC COUNTER WITH A FREQUENCY RANGE OF 0 TO A MINIMUM OF 150 MHZ. THE SPECIFICATION ALSO CALLS FOR A FREQUENCY CONVERTER FUNCTION TO EXTEND THE RANGE CAPABILITY OF THE COUNTER FROM 150 MHZ TO 3,000 MHZ. THE EXTENDED RANGE CAPABILITY CAN BE ACHIEVED, APPARENTLY, EITHER BY USING A HETERODYNE UNIT OR A TRANSFER OSCILLATOR. WITH RESPECT TO THE BASIC COUNTER, THE SPECIFICATION REQUIRES A 1HZ RESOLUTION TO 150 MHZ IN A 1 SECOND MEASUREMENT OR GATE TIME. FOR THE EXTENDED RANGES THE SPECIFICATION (PARAGRAPH 3.17.2) REQUIRES THAT "THE CONVERTER UNIT SHALL RETAIN THE ACCURACY AND RESOLUTION OF BASIC COUNTER." YOU READ PARAGRAPH 3.17.2 AS MEANING THAT AT 3,000 MHZ THE CONVERTER MUST PROVIDE A 1HZ RESOLUTION IN 1 SECOND. YOU REPORT THAT ONLY A HETERODYNE UNIT IS CAPABLE OF PROVIDING 1 HZ RESOLUTION IN 1 SECOND AT 3,000 MHZ, WHEREAS A TRANSFER OSCILLATOR BECAUSE OF ITS MODE OF OPERATION WILL PROVIDE A 20 HZ RESOLUTION AT 3,000 MHZ IN 1 SECOND OR A 1 HZ RESOLUTION IN 20 SECONDS.

ALTHOUGH THE INVITATION ITSELF DID NOT REQUIRE BIDDERS TO SPECIFY MODEL NUMBERS, IT HAS BEEN DETERMINED THAT THE LOW BIDDER IS PROPOSING TO FURNISH A COUNTER EMPLOYING THE TRANSFER OSCILLATOR TECHNIQUE. YOU CONTEND THAT THIS WILL NOT MEET THE REQUIREMENTS OF PARAGRAPH 3.17.2. SHOULD BE NOTED THAT HPC ALONE OF ALL THE BIDDERS DID SPECIFY A MODEL NUMBER IN ITS BID AND THIS MODEL DOES INCLUDE A HETERODYNE UNIT.

GSA STATES THAT 3.17.2 WAS INTENDED MERELY TO REQUIRE THAT THE SAME PERCENTAGE OF ACCURACY AND RESOLUTION OF THE BASIC COUNTER BE RETAINED IN THE HIGHER FREQUENCIES; I.E., 1 HZ RESOLUTION AT 150 MHZ IN 1 SECOND, 10 HZ AT 1,500 MHZ IN 1 SECOND, AND 20 HZ AT 3,000 MHZ IN 1 SECOND. IN THIS CONNECTION, GSA REPORTS THAT THE INVITATION AMENDMENTS WERE DESIGNED TO MAKE IT CLEAR TO BIDDERS THAT EQUIPMENT UTILIZING EITHER A HETERODYNE UNIT OR THE TRANSFER OSCILLATOR PRINCIPLE WOULD BE ACCEPTABLE UNDER THE SPECIFICATION. IT CITES THE FOLLOWING AMENDMENT CHANGES:

(A) THE TITLE OF THE SPECIFICATION WAS CHANGED FROM "ELECTRONIC COUNTER, DC TO 150 MHZ WITH PLUG-IN CAPABILITY" TO "ELECTRONIC COUNTER", INDICATING A DIFFERENCE IN PRODUCT SINCE THE PLUG-IN CAPABILITY IS ASSOCIATED WITH THE HETERODYNE FREQUENCY APPROACH. IN ADDITION, VARIOUS SPECIFICATION PARAGRAPHS WERE REVISED TO SHOW THAT AN INSTRUMENT WHICH DID NOT USE A PLUG-IN UNIT WOULD BE ACCEPTABLE.

(B) AMENDMENT NO. 4 ADDED THE LANGUAGE "IF A TUNING INDICATOR IS USED IT SHALL BE CALIBRATED IN 50 MHZ OR 100 MHZ INCREMENTS" AND "WHEN REQUIRED" IN CONNECTION WITH THE VOLTAGE LEVEL INDICATOR. GSA ADVISES THAT CALIBRATION AND TUNING INDICATORS AND A VOLTAGE LEVEL INDICATOR ARE CHARACTERISTICS OF THE HETERODYNE UNIT AND THAT THE INCLUSION OF THE WORDS "IF" AND "WHEN REQUIRED" IN THE SPECIFICATION INDICATED THAT THE HETERODYNE UNIT WAS NOT THE ONLY METHOD OF EXTENDING THE FREQUENCY RANGE OF THE BASIC COUNTER CONTEMPLATED BY THE SPECIFICATION. ALTHOUGH PARAGRAPH 3.17.2 WAS NOT CHANGED BY ANY OF THE AMENDMENTS, GSA BELIEVES THAT IN THE CONTEXT OF THE SPECIFICATION AS REVISED, A REASONABLE BIDDER CONVERSANT WITH THE SUBJECT MATTER SHOULD HAVE INTERPRETED THE RESOLUTION REQUIREMENT IN THE MANNER INTENDED BY THE DRAFTERS.

YOU INSIST, HOWEVER, THAT PARAGRAPH 3.17.2 SPEAKS FOR ITSELF AND THAT AS A RESULT OF THIS PARAGRAPH BIDDERS SUCH AS HPC, AND OTHERS, OFFERED MORE EXPENSIVE EQUIPMENT THAN WAS NECESSARY UNDER THE ADMINISTRATIVE INTERPRETATION. IN SUPPORT OF YOUR POSITION, YOU POINT TO THE FACT THAT A MAJORITY OF THE BIDDERS ARE MAKING THE SAME COMPLAINT AS HPC. IT IS YOUR CONTENTION THAT A MAJORITY OF THE BIDDERS WERE MISLED BY THE SPECIFICATION WITH THE RESULT THAT FULL COMPETITION WAS NOT OBTAINED. YOU CONCLUDE THAT THE GOVERNMENT SHOULD CANCEL THE INVITATION AND READVERTISE THE PROCUREMENT UNDER A CLEAR SPECIFICATION.

AS YOU RECOGNIZE, INVITATIONS SHOULD NOT BE LIGHTLY CANCELED ONCE BIDS ARE EXPOSED. IN THIS CASE WE ARE NOT PERSUADED THAT CANCELATION IS JUSTIFIED. WE AGREE THAT GSA'S INTENT WITH RESPECT TO RESOLUTION COULD HAVE BEEN EXPRESSED WITH GREATER CLARITY. HOWEVER, IT APPEARS THAT A REASONABLE READING OF THE ENTIRE SPECIFICATION INDICATES THAT EITHER THE TYPE OF EQUIPMENT PROPOSED BY SYSTRON DONNER OR THAT OFFERED BY HPC WOULD BE ACCEPTABLE. ALTHOUGH YOU ALLEGE THAT HPC WAS MISLED BY THE SPECIFICATION, WE HAVE NOT BEEN FURNISHED ANY EVIDENCE THAT HPC WAS IN FACT PREJUDICED BECAUSE OF ITS INTERPRETATION OF PARAGRAPH 3.17.2. AMBIGUOUS OR INCORRECT SPECIFICATION DOES NOT REQUIRE CANCELATION OF THE PROCUREMENT IF THERE WAS NO RESTRICTIVE EFFECT ON COMPETITION.

AS FOR THE OTHER PROTESTING BIDDERS, THE EVIDENCE OF RECORD INDICATES THAT ONLY ONE OF THESE BIDDERS RAISED ANY QUESTION WITH GSA BEFORE BID OPENING CONCERNING THE MEANING OF PARAGRAPH 3.17.2, AND THIS BIDDER (DANA LABORATORIES) INDICATED AT THE TIME THAT IT WAS ADOPTING THE PROPORTIONAL OR PERCENTAGE RESOLUTION INTERPRETATION OF THE SPECIFICATION PARAGRAPH. (ENCLOSED IS A COPY OF OUR LETTER OF TODAY TO DANA LABORATORIES.)

UNDER THE CIRCUMSTANCES, WE DO NOT BELIEVE THAT A CANCELATION OF THE INVITATION WOULD BE JUSTIFIED. YOUR PROTEST AGAINST THE PROPOSED AWARD TO THE LOW BIDDER IS ACCORDINGLY DENIED.