B-174730, MAR 17, 1972, 51 COMP GEN 583

B-174730: Mar 17, 1972

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CONTRACTS - SPECIFICATIONS - SAMPLES - BRAND NAME OR EQUAL PROCUREMENT - "FACILITY OF USE" THE REQUIREMENT FOR SAMPLES TO BE SUBMITTED WITH BIDS ON A BRAND NAME OR EQUAL PROCUREMENT FOR QUANTITIES OF A NOISE GENERATOR AND A NOISE FIGURE METER WAS IN ACCORD WITH THE POLICY IN PARAGRAPH 2-202.4 OF THE ARMED SERVICES PROCUREMENT REGULATION FOR "PRODUCTS THAT MUST BE SUITABLE FROM THE STANDPOINT OF BALANCE. " AND THE TESTING OF SAMPLES NOTWITHSTANDING DESCRIPTIVE DATA INDICATED COMPLIANCE WITH THE SPECIFICATIONS WAS PROPER UNDER AN INVITATION THAT PROVIDED FOR INSPECTION AND TESTING OF SAMPLES TO EVALUATE THE CHARACTERISTICS OF "FACILITY OF USE" TO DETERMINE COMPLIANCE WITH THE BRAND NAME ITEMS WITH RESPECT TO WORKMANSHIP.

B-174730, MAR 17, 1972, 51 COMP GEN 583

CONTRACTS - SPECIFICATIONS - SAMPLES - BRAND NAME OR EQUAL PROCUREMENT - "FACILITY OF USE" THE REQUIREMENT FOR SAMPLES TO BE SUBMITTED WITH BIDS ON A BRAND NAME OR EQUAL PROCUREMENT FOR QUANTITIES OF A NOISE GENERATOR AND A NOISE FIGURE METER WAS IN ACCORD WITH THE POLICY IN PARAGRAPH 2-202.4 OF THE ARMED SERVICES PROCUREMENT REGULATION FOR "PRODUCTS THAT MUST BE SUITABLE FROM THE STANDPOINT OF BALANCE, FACILITY OF USE, GENERAL FEEL, COLOR, OR PATTERN," AND THE TESTING OF SAMPLES NOTWITHSTANDING DESCRIPTIVE DATA INDICATED COMPLIANCE WITH THE SPECIFICATIONS WAS PROPER UNDER AN INVITATION THAT PROVIDED FOR INSPECTION AND TESTING OF SAMPLES TO EVALUATE THE CHARACTERISTICS OF "FACILITY OF USE" TO DETERMINE COMPLIANCE WITH THE BRAND NAME ITEMS WITH RESPECT TO WORKMANSHIP, PERFORMANCE, VERIFICATION, AND COMPATIBILITY. FURTHERMORE, THE CONFLICT REGARDING TEST RESULTS MUST BE RESOLVED IN FAVOR OF THE ADMINISTRATIVE POSITION SINCE THERE IS NO SHOWING THE TEST WAS DEFECTIVE, IMPROPERLY CONDUCTED, OR ERRONEOUSLY REPORTED.

TO THE GENERAL MICROWAVE CORPORATION, MARCH 17, 1972:

REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 10, 1971, AND SUBSEQUENT CORRESPONDANCE, PROTESTING AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER IFB F41608-72-B-0815, ISSUED BY THE SAN ANTONIO AIR MATERIAL AREA (SAAMA), KELLY AIR FORCE BASE, TEXAS.

THIS WAS A BRAND NAME OR EQUAL PROCUREMENT FOR QUANTITIES OF A NOISE GENERATOR (HEWLETT-PACKARD MODEL 343 OR EQUAL) AND A NOISE FIGURE METER (HEWLETT-PACKARD MODEL H74-340B OR EQUAL). THE IFB REQUIRED SUBMISSION OF BOTH DESCRIPTIVE MATERIAL AND BID SAMPLES WITH "OR EQUAL" OFFERS. TESTING AND EVALUATION PERFORMED ON THE SAMPLES SUBMITTED BY THE LOW BIDDER AND YOU, THE SECOND LOW BIDDER, REVEALED THAT THE SAMPLES DID NOT CONFORM TO THE SPECIFICATIONS, AND AS A RESULT BOTH BIDS WERE REJECTED AS NONRESPONSIVE. AWARD WAS MADE TO HEWLETT-PACKARD, THE ONLY OTHER BIDDER, ON DECEMBER 1, 1971, FOR THE BRAND NAME ITEMS.

YOUR SAMPLE WAS FOUND TO DEVIATE FROM THE SPECIFICATIONS IN THAT YOUR NOISE GENERATOR INCLUDED A CABLE LESS THAN THE REQUIRED 6 FEET IN LENGTH AND HAD A SOURCE IMPEDANCE OF 75 OHMS INSTEAD OF THE REQUIRED 50 OHMS. YOU CLAIM THAT THE FIRST DISCREPANCY WAS AN EASILY CORRECTABLE MINOR VARIATION AND YOU DISPUTE THE VALIDITY OF THE TEST RESULTS WHICH INDICATED AN IMPEDANCE OF 75 OHMS. YOU FURTHER CLAIM THAT THE CONTRACTING OFFICER ACTED UNREASONABLY IN ACCEPTING THE TEST RESULTS WITHOUT FIRST SEEKING SUPPORTING DATA. IN ADDITION, YOU QUESTION THE NECESSITY FOR REQUIRING BID SAMPLES IN THIS PROCUREMENT, AND YOU CONTEND THAT IT WAS IMPROPER FOR THE GOVERNMENT TO TEST YOUR SAMPLE FOR SOURCE IMPEDANCE WHEN YOUR DESCRIPTIVE BID DATA INDICATED COMPLIANCE WITH THE 50 OHM REQUIREMENT.

AS REQUIRED BY ASPR 1.1206-3, PARAGRAPH C-39 OF THE IFB INCLUDED THE REQUIREMENT THAT:

*** TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE OFFEROR MUST FURNISH AS A PART OF HIS OFFER ALL DESCRIPTIVE MATERIAL *** NECESSARY FOR THE PURCHASING ACTIVITY TO (I) DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE SOLICITATION AND (II) ESTABLISH EXACTLY WHAT THE OFFEROR PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD.

PARAGRAPH C-40 STATED:

BID SAMPLES (1965 OCT.):

(A) BID SAMPLES, IN THE QUANTITIES, SIZES, ETC., REQUIRED FOR THE ITEMS SO INDICATED IN THIS SOLICITATION, MUST BE FURNISHED AS A PART OF THE OFFER AND MUST BE RECEIVED BEFORE THE TIME SPECIFIED IN PARAGRAPH C 8 HEREOF. SAMPLES WILL BE TESTED OR EVALUATED TO DETERMINE COMPLIANCE WITH ALL CHARACTERISTICS LISTED FOR SUCH TEST OR EVALUATION IN THIS SOLICITATION.

(B) FAILURE OF SAMPLES TO CONFORM TO ALL SUCH CHARACTERISTICS WILL REQUIRE REJECTION OF THE OFFER. FAILURE TO FURNISH SAMPLES BY THE TIME SPECIFIED IN THE SOLICITATION WILL REQUIRE REJECTION OF THE OFFER, EXCEPT THAT A LATE SAMPLE TRANSMITTED BY MAIL MAY BE CONSIDERED UNDER THE PROVISION FOR CONSIDERING LATE OFFERS, AS SET FORTH ELSEWHERE IN THIS SOLICITATION. HOWEVER, THE REQUIREMENT FOR FURNISHING SAMPLES MAY BE WAIVED AS TO AN OFFEROR IF (I) THE OFFEROR STATES IN HIS OFFER THAT THE PRODUCT HE IS OFFERING TO FURNISH IS THE SAME AS A PRODUCT HE HAS OFFERED TO THE PURCHASING ACTIVITY ON A PREVIOUS PROCUREMENT AND (II) THE CONTRACTING OFFICER DETERMINES THAT SUCH PRODUCT WAS PREVIOUSLY PROCURED OR TESTED BY THE PURCHASING ACTIVITY AND FOUND TO COMPLY WITH SPECIFICATION REQUIREMENTS CONFORMING IN EVERY MATERIAL RESPECT TO THOSE IN THIS SOLICITATION. (1960 OCT.)

(C) PRODUCTS DELIVERED UNDER ANY RESULTING CONTRACT SHALL CONFORM TO THE APPROVED SAMPLE AS TO THE CHARACTERISTICS LISTED FOR TEST OR EVALUATION AND SHALL CONFORM TO THE SPECIFICATIONS AS TO ALL OTHER CHARACTERISTICS.

PARAGRAPH C-41(C) STATED THAT BID SAMPLES "SHALL BE SUPPLIED FOR INSPECTION AND TESTING TO EVALUATE THE CHARACTERISTIC OF 'FACILITY OF USE' (ASPR 2-202.4(B)). THE ITEMS SHALL BE SUBJECTED TO THE FOLLOWING TESTS ***." THE INDICATED TESTS WERE DESCRIBED AS EASE OF CALIBRATION, WORKMANSHIP, COMPONENTS, OPERATING PECULIARITIES, VERIFICATION OF OPERATION AND MAINTENANCE MANUAL, AND APPLICATION COMPATIBILITY. WITH RESPECT TO THE LAST TEST, THE IFB STATED THAT THE SAMPLE "SHALL BE TESTED TO DETERMINE PERFORMANCE IN THE INTENDED APPLICATION, SINCE ABSOLUTE COMPATIBILITY IS REQUIRED."

THE IFB ALSO INCLUDED A "PROCUREMENT DATA LIST," WHICH STATED THAT "THE FOLLOWING DATA ARE NECESSARY TO THE PROCUREMENT" AND THAT "THIS DESCRIPTION COVERS THE SALIENT CHARACTERISTICS OF AN AUTOMATIC NOISE FIGURE MEASUREMENT SYSTEM FOR DETERMINING THE NOISE FIGURE OF RECEIVING EQUIPMENT." THERE FOLLOWED DETAILED SPECIFICATIONS OF THE SYSTEM INCLUDING REQUIREMENTS FOR A 6-FOOT CABLE AND AN INPUT IMPEDANCE OF 50 OHMS.

ASPR 2-202.4 SETS FORTH THE GOVERNMENT POLICY WITH RESPECT TO REQUIRING BID SAMPLES:

(B) POLICY. BIDDERS SHALL NOT BE REQUIRED TO FURNISH A BID SAMPLE OF A PRODUCT THEY PROPOSE TO FURNISH UNLESS THERE ARE CERTAIN CHARACTERISTICS OF THE PRODUCT WHICH CANNOT BE DESCRIBED ADEQUATELY IN THE APPLICABLE SPECIFICATION OR PURCHASE DESCRIPTION, THUS NECESSITATING THE SUBMISSION OF A SAMPLE TO ASSURE PROCUREMENT OF AN ACCEPTABLE PRODUCT. IT MAY BE APPROPRIATE TO REQUIRE BID SAMPLES, FOR EXAMPLE, WHERE THE PROCUREMENT IS OF PRODUCTS THAT MUST BE SUITABLE FROM THE STANDPOINT OF BALANCE, FACILITY OF USE, GENERAL "FEEL," COLOR, OR PATTERN *** .

IN THE ADMINISTRATIVE REPORT FURNISHED BY THE AIR FORCE, THE CONTRACTING OFFICER STATES THAT THIS WAS THE FIRST COMPETITIVE PROCUREMENT OF THIS EQUIPMENT. THE RECORD BEFORE US FURTHER INDICATES THAT THE NOISE MEASUREMENT SYSTEM MUST BE EXACTLY COMPATIBLE WITH THE EQUIPMENT WITH WHICH IT IS TO BE USED, AND THAT THE AIR FORCE REQUIRED EVALUATION OF "FACILITY OF USE" TO DETERMINE COMPLIANCE WITH THE BRAND NAME ITEM WITH RESPECT TO SUCH THINGS AS WORKMANSHIP, PERFORMANCE, VERIFICATION AND COMPATIBILITY. WE THINK THESE CIRCUMSTANCES INDICATE THAT WITHOUT SAMPLES THE GOVERNMENT COULD NOT ADEQUATELY DETERMINE THAT THE OFFERED EQUIPMENT WOULD MEET ITS MINIMUM NEEDS. B-166092, APRIL 4, 1969. THEREFORE, WE CANNOT AGREE WITH YOUR CONTENTION THAT BID SAMPLES SHOULD NOT HAVE BEEN REQUIRED.

ALTHOUGH YOUR DESCRIPTIVE DATA APPARENTLY STATED THAT YOUR NOISE GENERATOR'S SOURCE IMPEDANCE WAS 50 OHMS, AS REQUIRED BY THE IFB, WE DO NOT THINK IT WAS UNREASONABLE TO TEST FOR THIS REQUIREMENT. THE INVITATION STATED THAT THE SAMPLE WOULD BE TESTED "TO DETERMINE PERFORMANCE IN THE INTENDED APPLICATION, SINCE ABSOLUTE COMPATIBILITY IS REQUIRED." IT IS OUR UNDERSTANDING THAT A SIGNIFICANT DEVIATION IN THE REQUIRED SOURCE IMPEDANCE WOULD IN FACT RENDER THE MEASURING SYSTEM INCOMPATIBLE AND INCAPABLE OF THE DESIRED PERFORANCE. ACCORDINGLY, WE SEE NOTHING IMPROPER IN SAAMA'S DECISION TO TEST THE BID SAMPLES FOR COMPLIANCE WITH THE SPECIFICATIONS IN THIS RESPECT.

THERE IS AN UNRESOLVED CONFLICT IN THE RECORD AS TO WHETHER THE SOURCE IMPEDANCE OF YOUR SAMPLE NOISE GENERATOR IS ACTUALLY 50 OHMS OR 75 OHMS. YOU STATE THAT YOU TESTED THE GENERATOR BOTH BEFORE IT WAS SHIPPED TO SAAMA AND AFTER IT WAS RETURNED TO YOU, AND THAT ON BOTH OCCASIONS THE TEST RESULTS REFLECTED AN IMPEDANCE OF 50 OHMS. THE AIR FORCE STATES THAT YOUR SAMPLE WAS TESTED IN SAAMA'S ELECTRONICS STANDARDS LABORATORY AND MEASURED 75 OHMS. IN RESPONSE TO YOUR CHALLENGE OF SAAMA'S TEST RESULTS, THE ADMINISTRATIVE REPORT INDICATES THAT THE TEST EQUIPMENT WAS PROPERLY CALIBRATED WHEN USED TO PERFORM THE IMPEDANCE MEASUREMENTS, AND FURTHER STATES THE FOLLOWING:

(1) THE EQUIPMENT USED AND THE APPLICABLE TECHNICAL ORDER PROVIDE FOR DETERMINING THE VSWR FROM THE MEASURED SOURCE IMPEDANCE AND PHASE ANGLE. ADDITIONALLY, THE TESTING WAS PERFORMED AT THE SAAMA ELECTRONICS STANDARDS LABORATORY, AND THE CALIBRATION ACCURACIES OF THE EQUIPMENT USED TO PERFORM THE TEST ARE TRACEABLE TO THE NATIONAL BUREAU OF STANDARDS.

(2) BASED ON THE MEASURED SOURCE IMPEDANCE OF 75 OHMS, WE AGREE WITH THE STATEMENT IN PARAGRAPH (5) OF THE REFERENCED GENERAL MICROWAVE LETTER; "HOWEVER, IT FOLLOWS AUTOMATICALLY THAT IF THE SOURCE IMPEDANCE WERE 75 OHMS (IN LIEU OF THE REQUIRED 50 OHMS), THE VSWR VALUES MUST ALSO BE DISCREPANT." THE OUT OF TOLERANCE VSWR WAS CONFIRMED; HOWEVER, SINCE THE DEVIATION IN THE MEASURED SOURCE IMPEDANCE (75 OHMS) WAS SO LARGE WITH RESPECT TO THE REQUIRED SOURCE IMPEDANCE (50 OHMS), THE VSWR VALUES WERE NOT NOTED. THE FREQUENCIES AT WHICH THE OUT OF TOLERANCE SOURCE IMPEDANCE WAS MEASURED WERE NOT RECORDED. HOWEVER, CONSIDERING THE MEASUREMENT METHOD, ANY MEASURED IMPEDANCE OF LESS THAN 42 OHMS OR MORE THAN 60 OHMS, AT ANY PHASE ANGLE AND FREQUENCY FROM 10 TO 100 MEGAHERTZ, WOULD RESULT IN AN OUT OF TOLERANCE VSWR. *** .

THE RECORD FURTHER INDICATES THAT YOU DO NOT QUESTION THE TESTING PROCEDURES USED, BUT ONLY THE RESULTS OF THAT TEST. THE ONLY EVIDENCE YOU PRESENT TO IMPEACH THOSE TEST RESULTS ARE STATEMENTS REGARDING THE TESTS YOU PERFORMED WHICH REFLECTED DIFFERENT RESULTS. IN THIS KIND OF A FACTUAL DISPUTE WHERE WE HAVE AVAILABLE NO EVIDENCE OTHER THAN THE ASSERTIONS OF THE PARTIES, WE DO NOT BELIEVE THAT THE ADMINISTRATIVE POSITION CAN BE REJECTED WITHOUT A SHOWING THAT THE GOVERNMENT TEST WAS IN SOME WAY DEFECTIVE OR IMPROPERLY CONDUCTED OR THAT THE RESULTS WERE ERRONEOUSLY REPORTED.

FURTHER, WE SEE NOTHING ARBITRARY OR UNREASONABLE IN THE CONTRACTING OFFICER'S RELIANCE ON THE REPORTED TEST RESULTS TO REJECT YOUR BID. THE IFB SPECIFICALLY STATED THAT THE FAILURE OF THE SAMPLES TO CONFORM TO THE CHARACTERISTICS TO BE TESTED WOULD REQUIRE REJECTION OF THE BID. THE CONTRACTING OFFICER WAS UNDER NO OBLIGATION TO QUESTION THE TEST RESULTS OR TO SEEK ADDITIONAL DATA FROM YOU TO RESOLVE THE APPARENT CONFLICT. FACT, HAD HE DONE SO, IT WOULD HAVE GIVEN RISE TO A SERIOUS QUESTION INVOLVING ACTION PREJUDICIAL TO OTHER BIDDERS. THE FACT THAT THE DISCREPANCIES WERE FOUND ONLY IN THE NOISE GENERATOR AND NOT IN THE NOISE METER STILL REQUIRED REJECTION OF THE ENTIRE BID, SINCE IT WAS CLEAR FROM THE NATURE OF THE PROCUREMENT THAT ONE COULD NOT BE USED WITHOUT THE OTHER BECAUSE OF THE STRICT COMPATIBILITY REQUIREMENT.

IN VIEW OF OUR CONCLUSION THERE IS NO NEED TO CONSIDER THE SIGNIFICANCE OF THE ADMITTED DEVIATION IN CABLE LENGTH.

IN YOUR LETTER OF FEBRUARY 1, 1972, YOU PROTEST THE AIR FORCE'S DELAY IN SUBMITTING A REPORT TO US AND OUR TOLERANCE OF THAT DELAY. BY LETTER OF DECEMBER 13, 1971, WE REQUESTED A REPORT FROM THE SECRETARY OF THE AIR FORCE, AND ON DECEMBER 21, 1971, WE FORWARDED TO HIM A COPY OF YOUR LETTER OF DECEMBER 17, 1971, SETTING FORTH THE BASIS OF YOUR PROTEST. UPON RECEIPT OF YOUR LETTER OF DECEMBER 29, 1971, WE FORWARDED A COPY TO THE SECRETARY ON JANUARY 4, 1972, FOR CONSIDERATION. THE AIR FORCE REPORT TO US IS DATED FEBRUARY 4, 1972. UNDER THE CIRCUMSTANCES, WE DO NOT BELIEVE THERE WAS INORDINATE DELAY IN THIS CASE. HOWEVER, WE ARE FULLY COGNIZANT OF THE NEED FOR EXPEDITIOUS HANDLING OF BID PROTEST CASES AND CONTINUALLY STRIVE TOWARD THAT END.