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B-172082, APR 7, 1971

B-172082 Apr 07, 1971
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THE MODIFICATION REQUIRED TO MEET SPECIFICATIONS WOULD BE TOO EXTENSIVE RENDERED THE BID NONRESPONSIVE IS A TECHNICAL DECISION WHICH THE COMP. WILL NOT QUESTION IN THE ABSENCE OF A SHOWING OF BAD FAITH. INC.: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17. WERE GENERAL CONDITIONS 6 AND 7. SUCH MODIFICATIONS WILL RENDER THE BID NONRESPONSIVE. A STANDARD MODEL IS DEFINED AS A BASIC RECEIVER. IT IS NOT EXPECTED THAT THE SAMPLE BE MODIFIED IN ANY MANNER TO MEET THE REQUIREMENTS OF THIS SPECIFICATION. THE SAMPLE WILL BE RETURNED. THE REQUIREMENTS OF THIS PARAGRAPH ARE WAIVED IF THE BIDDER HAS PREVIOUSLY FURNISHED THIS AGENCY WITH SIMILAR EQUIPMENT AS DETERMINED BY THE CONTRACTING OFFICER. RESPONSES WERE RECEIVED FROM ELEVEN BIDDERS AND UPON OPENING THE BIDS AT 3:00 P.M.

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B-172082, APR 7, 1971

BID PROTEST - BID RESPONSIVENESS - TECHNICAL DISPUTES DENIAL OF PROTEST OF SOUTHCOM INTERNATIONAL, INC., LOW BIDDER, AGAINST THE REJECTION OF ITS BID AS NONRESPONSIVE AND AWARD OF A CONTRACT FOR RADIO RECEIVERS ISSUED BY THE IMMIGRATION AND NATURALIZATION SERVICE TO ANY OTHER BIDDER. THE CONTRACTING AUTHORITY'S DETERMINATION THAT PROTESTANT'S OFFER OF A TRANSCEIVER RATHER THAN A RECEIVER, AND THE MODIFICATION REQUIRED TO MEET SPECIFICATIONS WOULD BE TOO EXTENSIVE RENDERED THE BID NONRESPONSIVE IS A TECHNICAL DECISION WHICH THE COMP. GEN. WILL NOT QUESTION IN THE ABSENCE OF A SHOWING OF BAD FAITH.

TO SOUTHCOM INTERNATIONAL, INC.:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17, 1971, PROTESTING THE AWARD OF A CONTRACT TO ANY OTHER FIRM PURSUANT TO INVITATION FOR BIDS NO. CO 15-71, ISSUED DECEMBER 14, 1970, BY THE IMMIGRATION AND NATURALIZATION SERVICE OF THE U. S. DEPARTMENT OF JUSTICE.

THE SUBJECT SOLICITATION REQUESTED OFFERS FOR THE SUPPLY OF 92 RADIO RECEIVERS, 6 CHANNEL, CRYSTAL CONTROLLED, IN ACCORDANCE WITH THE SPECIFICATIONS SET FORTH IN THE IFB.

INCORPORATED WITHIN THE IFB, AT PAGES 11 AND 12, WERE GENERAL CONDITIONS 6 AND 7, WHICH READ AS FOLLOWS:

6. BIDDER MUST INDICATE THE MODEL OR TYPE NUMBER OR DESIGNATION OF ITEMS OFFERED, AND MUST STATE IF STANDARD MODEL REQUIRES MODIFICATIONS TO MEET THESE SPECIFICATIONS. BIDDER MUST ATTACH A GENERAL DESCRIPTION OF ANY SUCH MODIFICATIONS NECESSARY. IF IN THE JUDGEMENT OF THE CONTRACTING OFFICER, THE MODIFICATIONS LISTED PRECLUDE REASONABLE ENGINEERING EVALUATION AND SHOW DOUBT AS TO SUCCESSFUL OPERATION OR ADAPTABILITY TO PRESENT SYSTEM, SUCH MODIFICATIONS WILL RENDER THE BID NONRESPONSIVE. ITEM TYPE OR DESIGNATION REQUIRES MODIFICATION

1 YES - NO

7. A WORKING SAMPLE OF THE STANDARD MODEL/S DESIGNATED IN PARAGRAPH 6 ABOVE, SHALL BE MADE AVAILABLE WITHIN TWO WEEKS OF A REQUEST, TO THE GOVERNMENT FOR THE PURPOSE OF MAKING EXAMINATIONS AND PERFORMANCE TEST AS DEEMED NECESSARY BY THE GOVERNMENT TO DETERMINE COMPLIANCE WITH THE SPECIFICATIONS SET FORTH. FOR PURPOSES OF THIS PARAGRAPH, A STANDARD MODEL IS DEFINED AS A BASIC RECEIVER, TRANSMITTER AND/OR POWER SUPPLY UNIT/S. IT IS NOT EXPECTED THAT THE SAMPLE BE MODIFIED IN ANY MANNER TO MEET THE REQUIREMENTS OF THIS SPECIFICATION. THE SAMPLE WILL BE RETURNED. THE REQUIREMENTS OF THIS PARAGRAPH ARE WAIVED IF THE BIDDER HAS PREVIOUSLY FURNISHED THIS AGENCY WITH SIMILAR EQUIPMENT AS DETERMINED BY THE CONTRACTING OFFICER.

RESPONSES WERE RECEIVED FROM ELEVEN BIDDERS AND UPON OPENING THE BIDS AT 3:00 P.M., JANUARY 14, 1971, YOUR FIRM WAS FOUND TO BE THE LOW BIDDER AT $441.91 PER UNIT AND A TOTAL PRICE OF $40,655.72.

YOUR FIRM INCLUDED IN ITS BID A LETTER DATED JANUARY 12 WHICH OUTLINED THE MODIFICATIONS REQUIRED TO CONFORM YOUR ASTROFONE MODEL "150" TRANSCEIVER TO THE SPECIFICATIONS. THESE MODIFICATIONS INCLUDED REMOVAL OF THE TRANSMITTER SECTION, ALTERATION OF THE POWER SUPPLY, INCORPORATION OF A BFO AND CW FILTER, REVISION TO THE AUDIO TO PLACE 600 OHM OUTPUT AT THE HEADPHONE JACK, ADDITION OF RACK MOUNTING EARS, TOGETHER WITH OTHER CHANGES WHICH WERE CONSIDERED TO BE OF A MINOR NATURE.

ON FEBRUARY 17, 1971, YOUR FIRM WAS ORALLY ADVISED THAT YOUR BID WAS DETERMINED NONRESPONSIVE BECAUSE:

(1) THE ITEM OFFERED WAS DESIGNED AS A TRANSCEIVER, RATHER THAN A RECEIVER, AND THE MODIFICATION REQUIRED TO MEET SPECIFICATIONS WOULD BE TOO EXTENSIVE, THEREBY PRECLUDING A REASONABLE ENGINEERING EVALUATION PURSUANT TO GENERAL CONDITION 6.

(2) THE PHYSICAL SIZE OF THE HOUSING EXCEEDED THAT SPECIFIED IN THE IFB.

(3) THE ITEM OFFERED WAS DESIGNED FOR DESK-TOP MOUNTING, AND THE ADDITION OF RACK MOUNTING EARS FAILED TO COMPLY WITH PARAGRAPH 1.16.2 OF THE IFB.

BY YOUR LETTER OF THE SAME DATE TO THE CONTRACTING OFFICER, YOU CONTESTED THE FINDING THAT THE SC 150 TRANSCEIVER, WITH RECEIVER EXTRACTED, DID NOT COMPLY WITH THE SPECIFICATIONS. YOU ALSO DECLARED THAT YOUR OFFER OF RACK MOUNTING EXTENDERS COMPLIED WITH THE SPECIFICATION THAT THE EQUIPMENT BE DESIGNED TO MOUNT IN A STANDARD 19" RACK. YOU FURTHER ADVISED THAT THIS LETTER, A COPY OF WHICH WAS TRANSMITTED TO OUR OFFICE, CONSTITUTED YOUR PROTEST AGAINST THE AWARD TO ANY OTHER BIDDER.

UPON RECEIPT OF YOUR LETTER, AND IN COMPLIANCE WITH GENERAL CONDITION NO. 7, AN IN DEPTH ENGINEERING ANALYSIS WAS INITIATED UPON A WORKING SAMPLE OF THE MODEL WHICH YOUR FIRM SUPPLIED, AND THE FOLLOWING CONCLUSIONS WERE DRAWN:

(1) THE ITEM OFFERED WAS NOT A RECEIVER BY DESIGN BUT RATHER A TRANSCEIVER. THIS MEANT THAT THE RECEIVER DESIGN, CONTEMPLATED BY THE IFB, WAS A COMPROMISE TO BE INCORPORATED WITH A TRANSMITTER. REMOVAL OF THE TRANSMITTER PARTS WOULD NOT SATISFY THE REQUIREMENT THAT THE PRODUCT BE DESIGNED AS A FIXED STATION RECEIVER (ITEM 1, PAGE 6).

(2) THE RECEIVER SECTION OF YOUR PACKAGE WAS CRAMPED INTO A SECTION OF THE UNIT, WHICH WAS A DESIGN COMPROMISE, AND REMOVAL OF THE TRANSMITTER STILL LEFT A UNIT WHICH PROVIDED MANY PROJECTED MAINTENANCE DIFFICULTIES.

(3) THE REPACKAGING NECESSARY FOR THIS SAMPLE TO FILL SERVICE REQUIREMENTS WOULD BE EXTENSIVE. THE SAMPLE EMBODIED SEVERAL FEATURES WHICH INDICATED POOR PACKAGING CAPABILITY, AMONG THEM A HINGED SUBCHASSIS WHICH PINCHED A CABLE WHEN OPENED AND A TRANSISTOR WHICH IMPACTED THE SPEAKER MAGNET WHEN THE SUBCHASSIS WAS CLOSED.

IT HAS BEEN CONSISTENTLY HELD BY OUR OFFICE THAT MATERIAL DEVIATIONS IN A BID FROM THE ADVERTISED SPECIFICATIONS ARE THOSE WHICH GO TO THE SUBSTANCE OF THE BID BY AFFECTING EITHER THE PRICE, QUANTITY OR QUALITY OF THE ARTICLES. SUCH DEVIATIONS MAY NOT BE WAIVED AS MERE BID INFORMALITIES, SINCE TO DO SO WOULD BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS. COMP. GEN. 554, 558, 559 (1938), 30 COMP. GEN. 179, 181-182 (1950).

IN B-169007, JULY 27, 1970, OUR OFFICE DECLINED TO RESOLVE OBVIOUS CONFLICTS OF TECHNICAL OPINIONS FOR, TO DO SO, WOULD INVOLVE OUR OFFICE AS AN ARBITER OF TECHNICAL DISPUTES AS TO WHICH WE DO NOT HAVE THE NECESSARY EXPERTISE. WE THEREFORE ARE REQUIRED TO RELY UPON THE JUDGMENT OF ENGINEERING PERSONNEL OF THE PROCURING ACTIVITY. IN THE ABSENCE OF ARBITRARINESS, CAPRICIOUSNESS, BAD FAITH, OR SUBSTANTIAL EVIDENCE, THE CONTRACTING OFFICER'S TECHNICAL FACTUAL DETERMINATION AS TO THE CONFORMABILITY OF YOUR TRANSCEIVER, WITH EXTRACTED RECEIVER, MAY NOT BE QUESTIONED BY OUR OFFICE.

IN VIEW THEREOF, AND OF THE PROVISIONS OF GENERAL CONDITION 6 OF THE INSTANT INVITATION, TOGETHER WITH THE CONTRACTING AGENCY'S CONCLUSIONS FOLLOWING ITS ENGINEERING ANALYSIS UNDER GENERAL CONDITION 7, IT IS OUR OPINION THAT THE AGENCY WAS JUSTIFIED IN CONCLUDING THAT MODIFICATION OF YOUR ASTROFONE MODEL 150 TRANSCEIVER IN THE MANNER PROPOSED BY YOUR BID WOULD HAVE RESULTED IN MATERIAL DEVIATIONS FROM THE SPECIFICATION REQUIREMENTS.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.

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