B-170975(1), DEC. 30, 1970

B-170975(1): Dec 30, 1970

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WHERE THE SOLICITATION CALLED FOR NEW OR USED TAPE OF CURRENT PRODUCTION AND MOST SUITABLE GRADE FOR PURPOSE INTENDED THEN LOW BIDDER'S OFFER TO FURNISH SURPLUS COMPUTER TAPE IS VALID SINCE IT MEETS THE TECHNICAL SPECIFICATIONS OF THE SOLICITATION AND THE FACT THAT IT HAS A REMAINING SHELF LIFE OF THREE TO FIVE YEARS QUALIFIES IT UNDER THE "CURRENT PRODUCTION" SPECIFICATION. INC.: THIS IS IN RESPONSE TO YOUR LETTER OF OCTOBER 8. IT IS YOUR POSITION THAT THE LOW BIDDER SHOULD BE DISQUALIFIED SINCE IT INTENDS TO FURNISH SURPLUS MAGNETIC COMPUTER TAPE AND THEREFORE WILL NOT CONFORM TO THE SOLICITATION REQUIREMENT THAT " *** ALL MATERIALS. YOU ARGUE THAT THE GOVERNMENT'S PROPOSED ACCEPTANCE OF THE LOW BID WITH THE KNOWLEDGE THAT THE TAPE TO BE FURNISHED WILL NOT CONFORM TO ITS SPECIFICATION WOULD BE PREJUDICIAL TO YOUR FIRM.

B-170975(1), DEC. 30, 1970

BID PROTEST - BIDDER RESPONSIVENESS - DEVIATIONS DENIAL OF PROTEST OF LION RECORDING SERVICES, INC., AGAINST THE AWARD OF AN ADVERTISED CONTRACT FOR MATERIALS, SERVICES AND EQUIPMENT RELATED TO AUDIO TAPE REPRODUCTIONS, EQUALIZING, AND MAILING FOR RADIO BROADCASTS, ISSUED BY DEPARTMENT OF STATE TO NATIONAL TREND-IN CORP., LOW BIDDER. WHERE THE SOLICITATION CALLED FOR NEW OR USED TAPE OF CURRENT PRODUCTION AND MOST SUITABLE GRADE FOR PURPOSE INTENDED THEN LOW BIDDER'S OFFER TO FURNISH SURPLUS COMPUTER TAPE IS VALID SINCE IT MEETS THE TECHNICAL SPECIFICATIONS OF THE SOLICITATION AND THE FACT THAT IT HAS A REMAINING SHELF LIFE OF THREE TO FIVE YEARS QUALIFIES IT UNDER THE "CURRENT PRODUCTION" SPECIFICATION.

TO LION RECORDING SERVICES, INC.:

THIS IS IN RESPONSE TO YOUR LETTER OF OCTOBER 8, 1970, PROTESTING THE PROPOSED AWARD OF A CONTRACT TO ANOTHER FIRM UNDER SOLICITATION NO. ST 71- 4, ISSUED BY THE DEPARTMENT OF STATE.

THE SOLICITATION REQUESTED BIDS FOR AN INDEFINITE QUANTITY TERM CONTRACT FOR VARIOUS SERVICES AND SUPPLIES RELATED TO AUDIO TAPE REPRODUCTIONS, EQUALIZING, EDITING AND MAILING FOR RADIO BROADCASTS.

ESSENTIALLY, IT IS YOUR POSITION THAT THE LOW BIDDER SHOULD BE DISQUALIFIED SINCE IT INTENDS TO FURNISH SURPLUS MAGNETIC COMPUTER TAPE AND THEREFORE WILL NOT CONFORM TO THE SOLICITATION REQUIREMENT THAT " *** ALL MATERIALS, SUPPLIES AND EQUIPMENT TO BE FURNISHED MUST BE NEW, UNUSED, OF CURRENT PRODUCTION, AND OF THE MOST SUITABLE GRADE FOR THE PURPOSE INTENDED." (THIS REQUIREMENT APPEARS IN CLAUSE 25, ENTITLED NEW MATERIALS, OF THE ADDITIONAL GENERAL PROVISIONS, SUPPLY CONTRACT (ADDENDUM A, SUPPLEMENTING STANDARD FORM 32)). YOU ARGUE THAT THE GOVERNMENT'S PROPOSED ACCEPTANCE OF THE LOW BID WITH THE KNOWLEDGE THAT THE TAPE TO BE FURNISHED WILL NOT CONFORM TO ITS SPECIFICATION WOULD BE PREJUDICIAL TO YOUR FIRM, SINCE YOUR BID WAS BASED ON FURNISHING AUDIO TAPE WHICH CONFORMS FULLY WITH THE GOVERNMENT'S DESCRIPTION.

IT SHOULD BE NOTED THAT THE LOW BIDDER TOOK NO EXPRESS EXCEPTION IN ITS BID TO THE GOVERNMENT'S STATED REQUIREMENTS AND HAS INDICATED ITS INTENTION TO USE SURPLUS COMPUTER TAPE SUBSEQUENT TO BID OPENING. THEREFORE, AS WE SEE IT, THE BASIC ISSUE TO BE DECIDED IN THIS CASE IS WHETHER THE GOVERNMENT'S DESCRIPTION OF ITS REQUIREMENTS CAN REASONABLY BE INTERPRETED AS PERMITTING THE USE OF SURPLUS MAGNETIC COMPUTER TAPE WITHOUT PREJUDICE TO OTHER BIDDERS.

IN ADDITION TO CLAUSE 25 QUOTED ABOVE, THE SOLICITATION DESCRIBED CERTAIN PERFORMANCE CHARACTERISTICS REQUIRED OF THE SUPPLIES TO BE FURNISHED. SOLICITATION ITEM III PROVIDES, IN PERTINENT PART, AS FOLLOWS:

III REQUIRED SUPPLIES:

A. CONTRACTOR IS TO SUPPLY RAW TAPE, REELS, MAILING BOXES, AND GUMMED PRINTED IDENTIFYING LABELS TO FIT ON 5-INCH REELS. TAPES ARE TO BE REPRODUCED ON A SINGLE TRACK AT 7-1/2 INCHES PER SECOND ON 1/4 INCH

B. TAPE DUPLICATION IS TO MEET THE FOLLOWING REQUIREMENTS:

SPEED: 7-1/2 I.P.S.

SIGNAL-TO-NOISE RATIO: 48 DB

FREQUENCY RESPONSE COMPARED

TO MASTER 70 TO 10,000 C.P.S.

FLUTTER AND WOW 0.2% IN A BAND UP TO 100 CYCLES

THE DEPARTMENT OF STATE HAS TAKEN THE POSITION THAT TAPE WHICH CONFORMS TO THE ABOVE QUOTED PERFORMANCE CHARACTERISTICS SATISFIES THE GENERAL REQUIREMENT IN CLAUSE 25 FOR SUPPLYING THE MOST SUITABLE GRADE MATERIAL FOR THE PURPOSE INTENDED. IN THIS CONNECTION WE SEE NO VALID REASON FOR OBJECTING TO THE USE OF MAGNETIC TAPE WHICH MAY HAVE BEEN MANUFACTURED FOR COMPUTER USE RATHER THAN FOR AUDIO PURPOSES SO LONG AS SUCH TAPE CAN SATISFY THE INTENDED USE AS REFLECTED BY THE GOVERNMENT'S PERFORMANCE SPECIFICATIONS. WE ARE ADVISED THAT A SAMPLE TAPE WAS EXAMINED DURING THE PREAWARD INVESTIGATION OF THE LOW BIDDER'S FACILITIES AND IT WAS FOUND TO MEET THE GOVERNMENT'S PERFORMANCE SPECIFICATIONS. IN ADDITION, IT HAS BEEN SHOWN TO THE DEPARTMENT THAT THE TAPE INVOLVED IS UNUSED AND IN UNBROKEN FACTORY SEALED CARTONS.

WITH REGARD TO THE REQUIREMENT IN CLAUSE 25 THAT ALL MATERIAL FURNISHED BE OF CURRENT PRODUCTION, WE ARE ADVISED THAT, ALTHOUGH THE TAPE PROPOSED TO BE USED IS GOVERNMENT SURPLUS, AND IS NO LONGER BEING PRODUCED BY ITS MANUFACTURER, THE MANUFACTURING DATE IS WITHIN THE LAST TWO YEARS AND THE MANUFACTURER STATES THAT THE TAPE HAS AN AVERAGE SHELF LIFE OF FROM FIVE TO SEVEN YEARS. THE DEPARTMENT HAS TAKEN THE POSITION, WITH WHICH WE AGREE, THAT THE CURRENCY OF PRODUCTION FOR MAGNETIC TAPE SHOULD REASONABLY BE EVALUATED IN THE LIGHT OF THE ITEM'S REMAINING SHELF LIFE.

IN VIEW THEREOF, AND SINCE IT DOES NOT APPEAR THAT YOU WOULD HAVE OFFERED SIMILAR SURPLUS TAPE EVEN IF YOU HAD CONSTRUED THE INVITATION TO SO PERMIT, WE ARE UNABLE TO CONCLUDE THAT YOU WERE SO PREJUDICED BY THE LANGUAGE OF CLAUSE 25 AS TO REQUIRE OR JUSTIFY A RESOLICITATION AT THIS TIME.

WHILE YOUR PROTEST MUST THEREFORE BE DENIED, BY LETTER OF TODAY WE ARE SUGGESTING THAT THE DEPARTMENT OF STATE REVISE THE LANGUAGE OF ANY FUTURE SOLICITATIONS FOR THESE ITEMS SO AS TO MORE CLEARLY REFLECT THE DEPARTMENT'S NEEDS.