B-170768(2), FEB 17, 1971

B-170768(2): Feb 17, 1971

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IT IS FURTHER POINTED OUT THAT THE RECORD INDICATES DANA ADOPTED THE INTERPRETATION OF THE SPECIFICATION INTENDED BY GSA PRIOR TO BID OPENING AND IT WAS THEREFORE UNNECESSARY FOR GSA TO RESPOND DIRECTLY TO PROTESTANT (DANA). INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 8. 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 BEING RESTRICTIVE. YOU ASKED WHETHER IT WAS ACCEPTABLE IF RESOLUTION WAS INTERPRETED TO MEAN A CONSTANT PERCENTAGE OF READING. STATING THAT: " *** OUR INTERPRETATION OF 3.17.2 IS THAT A RESOLUTION ERROR EQUAL TO OR LESS THAN THE RESOLUTION ERROR IN THE DIRECT COUNT MADE AS A PERCENTAGE OF READING IS REQUIRED AT ALL FREQUENCIES.

B-170768(2), FEB 17, 1971

BID PROTEST - AMBIGUITY DENIAL OF PROTEST BY DANA LABORATORIES, INC., AGAINST PROPOSED AWARD TO LOW BIDDER, SYSTRON DONNER CORPORATION OF CONTRACT FOR ELECTRONIC COUNTERS, ISSUED BY GSA. ENCLOSING GAO'S DECISION ON THIS MATTER TO HEWLETT-PACKARD COMPANY, ALSO PROTESTING THIS AWARD, CONCERNING THE ALLEGED AMBIGUITY IN CERTAIN SPECIFICATIONS; IT IS FURTHER POINTED OUT THAT THE RECORD INDICATES DANA ADOPTED THE INTERPRETATION OF THE SPECIFICATION INTENDED BY GSA PRIOR TO BID OPENING AND IT WAS THEREFORE UNNECESSARY FOR GSA TO RESPOND DIRECTLY TO PROTESTANT (DANA).

TO DANA LABORATORIES, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 8, 1970, AND THE PRIOR CORRESPONDENCE PROTESTING 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 BEING 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."

BY LETTER DATED DECEMBER 29, 1969, YOU WROTE TO GSA EXPRESSING INTEREST IN BIDDING ON THIS PROCUREMENT AND LISTING A NUMBER OF QUESTIONS CONCERNING THE SPECIFICATION. ONE QUESTION REFERRED TO SPECIFICATION PARAGRAPH 3.17.2 WHICH PROVIDED THAT 'THE CONVERTER UNIT SHALL RETAIN THE ACCURACY AND RESOLUTION OF BASIC COUNTER." YOU ASKED WHETHER IT WAS ACCEPTABLE IF RESOLUTION WAS INTERPRETED TO MEAN A CONSTANT PERCENTAGE OF READING. IN A LETTER DATED JANUARY 23, 1970, YOU EXPANDED ON THIS POINT, STATING THAT:

" *** OUR INTERPRETATION OF 3.17.2 IS THAT A RESOLUTION ERROR EQUAL TO OR LESS THAN THE RESOLUTION ERROR IN THE DIRECT COUNT MADE AS A PERCENTAGE OF READING IS REQUIRED AT ALL FREQUENCIES, BUT THAT THE MEASUREMENT PERIOD NEED NOT BE EXACTLY 1 SECOND. IF THIS INTERPRETATION IS ACCEPTABLE, WE WILL PROCEED WITH OUR PROPOSAL ON THIS BASIS."

GSA APPARENTLY DID NOT DIRECTLY RESPOND TO ANY OF YOUR INQUIRIES BUT RATHER ON MARCH 17, 1970, ISSUED AMENDMENT NO. 4 TO THE INVITATION. THIS AMENDMENT INCLUDED SUBSTANTIAL SPECIFICATION CHANGES AND ESTABLISHED BID OPENING FOR APRIL 16, 1970. PARAGRAPH 3.17.2 OF THE SPECIFICATION REMAINED UNCHANGED.

ON APRIL 16, 1970, BIDS WERE OPENED AND SYSTRON DONNER WAS FOUND TO BE THE LOW BIDDER AT A UNIT PRICE OF $1,745. YOUR FIRM WAS SECOND LOW BIDDER AT $1,990 PER UNIT. SIX OTHER BIDS WERE ALSO RECEIVED INCLUDING A BID FROM HEWLETT-PACKARD COMPANY.

IN A LETTER DATED APRIL 21, 1970, YOU WROTE TO GSA AS FOLLOWS:

"PARAGRAPHS 3.10.3 AND 3.10.5 DEFINE COUNTER ACCURACY AND RESOLUTION FOR MEASUREMENTS UP TO 150 MHZ AS NOT EQUAL 1 HZ NOT EQUAL CRYSTAL STABILITY, WITH A 1 SECOND MEASUREMENT TIME. PARAGRAPH 3.17.2 STATES THAT THIS SAME ACCURACY AND RESOLUTION SHOULD BE DELIVERED WHEN THE CONVERTER IS USED FOR THE MEASUREMENT OF FREQUENCIES UP TO 3000 MHZ. WE INTERPRET THIS TO MEAN THAT ACCURACY SHOULD BE NOT EQUAL 10 HZ NOT EQUAL CRYSTAL STABILITY AT 1500 MHZ WITH A 1 SECOND MEASUREMENT TIME. ACCURACY SHOULD BE NOT EQUAL 20 HZ NOT EQUAL CRYSTAL STABILITY AT 3000 MHZ WITH A 1 SECOND MEASUREMENT TIME, ETC.

"IF THE ABOVE INTERPRETATION IS CORRECT, IT IS POSSIBLE THAT THE COUNTER PROPOSED BY SYSTRON-DONNER COMPANY, THE LOW BIDDER, MAY NOT MEET THE PERFORMANCE OF 3.17.2. THE MODEL 6053 MANUFACTURED BY SYSTRON DONNER REQUIRES SUBSTANTIALLY LONGER MEASUREMENT TIMES WHEN THE CONVERTER IS EMPLOYED. WE UNDERSTAND THAT THE COUNTER PROPOSED BY SYSTRON-DONNER IS A MODIFIED 6053.

"IN FAIRNESS TO THE OTHER BIDDERS, WE FEEL THAT IT IS IMPORTANT TO CLARIFY THIS PARTICULAR ASPECT OF COUNTER PERFORMANCE BEFORE AWARDING THE CONTRACT."

GSA PROPOSES TO MAKE AWARD TO THE LOW BIDDER AND IN SUBSEQUENT CORRESPONDENCE TO OUR OFFICE YOU HAVE IN EFFECT JOINED WITH A NUMBER OF THE OTHER BIDDERS ON THIS PROCUREMENT TO PROTEST THAT PARAGRAPH 3.17.2 OF THE SPECIFICATION WAS AMBIGUOUS. WE ENCLOSE A COPY OF OUR LETTER OF TODAY TO HEWLETT-PACKARD COMPANY CONCERNING THIS CONTENTION. WE MUST ADD WITH REFERENCE TO YOUR PROTEST THAT IT APPEARS FROM THE RECORD THAT YOUR FIRM DID ADOPT THE GSA INTENDED INTERPRETATION OF SPECIFICATION PARAGRAPH 3.17.2 PRIOR TO THE TIME OF BID OPENING. THIS MAY BE THE REASON GSA DID NOT FEEL COMPELLED TO RESPOND DIRECTLY TO YOUR FIRM PRIOR TO BID OPENING REGARDING PARAGRAPH 3.17.2.

IN ANY EVENT, BASED ON THE RECORD BEFORE US WE MUST DENY YOUR PROTEST AGAINST THE PROPOSED AWARD TO THE LOW BIDDER.