B-155358, JAN. 4, 1965

B-155358, JAN. 4, 1965

TO FUTURONICS CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE PROPOSED REJECTION OF YOUR BID SUBMITTED UNDER INVITATION FOR BIDS NO. 600-873 64, ISSUED BY THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON, D.C.

THE INVITATION ISSUED ON APRIL 15, 1964, REQUESTED BIDS FOR FURNISHING A QUANTITY OF AM-2123 ( ( (U AMPLIFIERS TO BE IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-A-22305C/SHIPS) DATED 16 OCTOBER 1963, TOGETHER WITH RELATED MANUALS, DRAWINGS AND DATA. THE INVITATION PROVIDED THAT AWARD WILL BE MADE "ONLY FOR SUCH PRODUCTS THAT HAVE, PRIOR TO TIME SET FOR OPENING OF BIDS/PROPOSALS, BEEN TESTED ANS QUALIFY FOR INCLUSION IN THE QUALIFIED PRODUCTS LIST IDENTIFIED BELOW, WHETHER OR NOT SUCH PRODUCTS HAVE ACTUALLY BEEN INCLUDED IN THE LIST BY THAT DATE.' THE QUALIFIED PRODUCTS LIST WAS IDENTIFIED AS "AMPLIFIER, DISTRIBUTION AM-2123/U QPL NO. 22305.'

THE INVITATION AS ORIGINALLY ISSUED PROVIDED FOR BIDS TO BE OPENED ON JUNE 3, 1964. BY AMENDMENT NO. 2 ISSUED ON MAY 6, 1964, THE OPENING DATE WAS EXTENDED TO JULY 31, 1964. AMENDMENT NO. 3, ISSUED ON JUNE 23, 1964, CHANGED THE SPECIFICATIONS APPLICABLE TO THE AMPLIFIER BY PROVIDING THAT IT SHALL BE IN ACCORDANCE WITH "MILITARY SPECIFICATION MIL-A-22305C/SHIPS) DATED 16 OCT. 1963 AND AMENDMENT NO. 2 DATE 5 JUNE 1964.' THE DATE FOR THE OPENING OF THE BIDS REMAINED JULY 31, 1964.

IN YOUR BID SUBMITTED IN RESPONSE TO THE INVITATION, IT WAS STATED THAT YOU PROPOSED TO FURNISH YOUR:

TABLE

"MODEL 202 APPROVED PER BUSHIPS LETTER OF

3 JAN. 1964

MODEL 202A TESTED PER BUSHIPS LETTER OF

8 JULY 1964.'

THE CONTRACTING OFFICER PROPOSES TO REJECT YOUR BID AS NONRESPONSIVE TO THE REQUIREMENT OF THE INVITATION THAT THE EQUIPMENT OFFERED MUST BE TESTED AND QUALIFIED FOR INCLUSION IN THE QUALIFIED PRODUCTS LIST PRIOR TO THE TIME SET FOR THE OPENING OF THE BID. YOU PROTEST THE PROPOSED REJECTION ON THE BASIS THAT THE EQUIPMENT YOU PROPOSED TO FURNISH "HAS BEEN TESTED SUFFICIENTLY TO ESTABLISH THAT IT HAS THE "REQUISITE QUALITIES" DELINEATED IN THE EQUIPMENT SPECIFICATION MIL-A-22305C.' YOU URGE THAT SPECIFICATION MIL-A-22305C IS PRACTICALLY IDENTICAL TO SPECIFICATION MIL-A-22305B AND THAT YOU DELIVERED UNDER CONTRACT 25 UNITS IN FULL COMPLIANCE WITH THE LATTER SPECIFICATION; THAT BY LETTER DATED JANUARY 24, 1964, YOU REQUESTED THE BUREAU OF SHIPS TO LIST YOUR PREVIOUSLY PRODUCED MODEL AS QUALIFYING UNDER THE REVISED SPECIFICATION; THAT APPARENT REACTIONS TO SUCH REQUEST WERE INITIALLY FAVORABLE BUT LATER NEGATIVE; AND THAT "NO OFFICIAL REPLY (WAS) EVER RECEIVED IN RESPONSE TO OUR REQUEST.'

WHILE YOU CONTEND THAT THE "B" VERSION OF MIL-A-22305 IS PRACTICALLY IDENTICAL TO THE "C" VERSION, IT IS REPORTED BY THE BUREAU OF SHIPS THAT SIGNIFICANT ENGINEERING CHANGES WERE MADE IN THE "C" VERSION AND THAT THE MODELS YOU DELIVERED UNDER A PREVIOUS DEVELOPMENT CONTRACT FOR THE B" VERSION WERE NOT IN FULL COMPLIANCE WITH THE "C" VERSION; THAT THE REQUEST CONTAINED IN YOUR LETTER OF JANUARY 24, 1964, WAS CONSIDERED AND IT WAS DETERMINED THAT IT WOULD NOT BE FEASIBLE TO COMPLY WITH YOUR REQUEST, AND IN ORDER TO MINIMIZE DELAY IN DENYING YOUR REQUEST FORMALLY, YOU WERE ADVISED BY TELEPHONE ON MARCH 6, 1964, THAT MODELS FULLY MEETING THE SPECIFICATION (C" VERSION) WOULD BE REQUIRED FOR QUALIFICATION. YOU WERE ALSO ADVISED THAT YOU COULD SUBMIT MODELS FOR TEST PRIOR TO RECEIVING A FORMAL LETTER OF APPROVAL.

YOU STATE THAT BY LETTER DATED JUNE 15, 1964, YOU REQUESTED "AUTHORIZATION TO SUBMIT UNITS FOR QUALIFICATION UNDER IFB-600-873-64" AND THAT ON JULY 14, 1964, YOU RECEIVED AUTHORIZATION TO SUBMIT EQUIPMENT FOR EVALUATION. AS HEREINBEFORE STATED THE BUREAU OF SHIPS REPORTS THAT YOU WERE ORALLY ADVISED ON MARCH 6, 1964, THAT YOU COULD SUBMIT MODELS FOR TEST PRIOR TO RECEIVING FORMAL LETTER OF APPROVAL. FURTHERMORE, IT IS REPORTED BY THE BUREAU OF SHIPS THAT THE JUNE 15, 1964, LETTER DOES NOT MENTION ANY IFB.

YOU STATE THAT ON JULY 20, 1964,"EQUIPMENT (WAS) DELIVERED TO NAVAL RESEARCH LABORATORY FOR TESTING.' THE BUREAU OF SHIPS REPORTS THAT THE JULY 20, 1964, DELIVERY (BUREAU OF SHIPS RECORDS SHOW JULY 21, 1964) CONSISTED OF TWO MODELS ONLY. THE SPECIFICATION REQUIRED THREE MODELS; YOUR REQUEST OF JUNE 15, 1964, AND BUREAU OF SHIPS REPLY BOTH REFERRED TO THESE MODELS. THE THIRD MODEL IS REPORTED BY THE BUREAU OF SHIPS TO HAVE BEEN DELIVERED ON JULY 31, 1964, THE OPENING DATE OF THE INVITATION FOR BIDS HERE INVOLVED.

YOU STATE THAT ON JULY 31, 1964, YOU WERE "INFORMED THAT ALL CRITICAL OPERATING TESTS (HAD BEEN) SUCCESSFULLY COMPLETED.' THE BUREAU OF SHIPS DENIES THAT YOU WERE EVER SO INFORMED AND STATES THAT ENVIRONMENTAL TESTS- -- WHICH ARE CRITICAL FOR SHIPBOARDUSE--- WERE NOT ACCOMPLISHED AS OF JULY 31, 1964.

SINCE THE INVITATION REQUIRED THE EQUIPMENT OFFERED TO BE TESTED AND QUALIFIED FOR LISTING ON THE QUALIFIED PRODUCTS LIST BY THE DATE OF THE OPENING OF THE BIDS, JULY 31, 1964, AND SINCE THE EQUIPMENT OFFERED WAS NOT SO QUALIFIED, HAPPENINGS THEREAFTER ARE NOT STRICTLY MATERIAL TO THE DETERMINATION OF THE RESPONSIVENESS OF YOUR BID. HOWEVER, TWO OCCURRENCES AFTER JULY 31, 1964, SEEM TO REQUIRE COMMENT. THESE ARE REPORTED BY YOU AS FOLLOWS:

"11. 20 AUGUST 1964 - ONE EQUIPMENT RETURNED TO OUR

FACILITIES FOR EXAMINATION AND TEST

SINCE NO TESTING WAS BEING CONDUCTED

ON OUR UNITS AT NAVAL RESEARCH LABORATORY.

"14. 8 OCTOBER 1964 - ADVISED BY NAVAL RESEARCH LABORATORY

PERSONNEL THAT TEMPERATURE-HUMIDITY

TESTS ON UNITS SATISFACTORILY COMPLETED.

ALSO STATED THAT THEY HAD BEEN ADVISED

THAT FUTURONICS CORPORATION PERSONNEL

WOULD NOT BE PERMITTED TO VISIT LABORATORY,

WITNESS TESTS OR MAKE EQUIPMENT ADJUSTMENT.

NOTE - THIS IS IN DIRECT VIOLATION OF THE

PROVISIONS GOVERNING QUALIFICATION.'

WITH RESPECT TO NO. 11 (20 AUGUST 1964) THE BUREAU OF SHIPS REPORTS THAT:

"FUTURONICS, INC. DID NOT GET APPROVAL FOR THIS; THEY SIMPLY CAME IN AND PICKED IT UP. QUALIFICATION TESTS WERE STILL IN PROGRESS AT THAT TIME.' IN CONNECTION WITH NO. 14 (8 OCTOBER 1964) TO THE EFFECT THAT YOU WERE DENIED PERMISSION TO WITNESS THE TESTS, THE BUREAU OF SHIPS REPORTS:

"FUTURONICS, INC. WAS INFORMED, UPON THEIR PHONE CALL TO NRL ASKING FOR INFORMATION, THAT ONE UNIT HAD SUCCESSFULLY GONE THROUGH TEMPERATURE- HUMIDITY TESTS. THEY WERE ALSO INFORMED THAT A SECOND UNIT HAD FAILED IN THE FIRST PHASE OF THAT TEST. WHEN THEY SAID THEY WOULD BE IN TO REPAIR THE FAILURE, THEY WERE INFORMED THAT NO FURTHER REPAIRS OR ADJUSTMENTS WOULD BE PERMITTED. THEY WERE NOT DENIED PERMISSION TO WITNESS TESTS.'

THE FINAL RESULT OF THE TESTS DISCLOSED THAT YOUR MODELS FAILED TO MEET THE REQUIREMENTS (MILITARY SPECIFICATION MIL-A-22305C).

WE HAVE CONSISTENTLY HELD THAT THE CONTRACTING AND ADMINISTRATIVE OFFICIALS OF THE GOVERNMENT ARE EMPOWERED TO DETERMINE THE NEED FOR EQUIPMENT TO MEET PARTICULAR SPECIFICATIONS AND WHETHER THE EQUIPMENT OFFERED MEETS THOSE SPECIFICATIONS; AND SUCH DETERMINATIONS ARE CONTROLLING IN THE ABSENCE OF CAPRICIOUS OR ARBITRARY ACTION. 17 COMP. GEN. 554, 36 ID. 251, 40 ID. 35.

IN A DECISION OF AUGUST 18, 1960, B-143282, IT WAS HELD THAT THE REQUIREMENT IN AN INVITATION FOR BIDS THAT THE EQUIPMENT OFFERED MUST HAVE BEEN TESTED, QUALIFIED AND APPROVED FOR LISTING IN THE APPROPRIATE QUALIFIED PRODUCTS LIST PRIOR TO TIME OF THE OPENING OF THE BIDS IS A MATERIAL REQUIREMENT WHICH COULD NOT BE WAIVED AND THAT A SUBSEQUENT APPROVAL COULD NOT BE GIVEN RETROACTIVE EFFECT. SINCE THE EQUIPMENT OFFERED IN YOUR BID HAD NOT BEEN TESTED AND QUALIFIED FOR INCLUSION IN THE QUALIFIED PRODUCTS LIST PRIOR TO THE TIME SET FOR THE OPENING OF THE BID, JULY 31, 1964, AS SPECIFICALLY REQUIRED BY THE INVITATION, THERE IS NO BASIS TO QUESTION THE ADMINISTRATIVE DETERMINATION THAT YOUR BID WAS NOT RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.