B-152027, DEC. 4, 1963

B-152027: Dec 4, 1963

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THE REQUIREMENT WAS CHANGED BY SPECIAL NOTICE NO. 1. 000 UNITS WAS LEFT UNRESTRICTED. SAME WILL BE TESTED TO ESTABLISH WHETHER OR NOT THE ITEMS MEET THE NEEDS OF THE GOVERNMENT. WILL RESULT IN REJECTION OF THE BID. * * * PRIOR TO AWARD OF CONTRACT. THE PREPRODUCTION MODELS WILL BE TESTED BY EITHER THE OFFICE OF CIVIL DEFENSE OR ITS DESIGNATED AGENT. APPROVAL OF PREPRODUCTION MODELS WILL NOT DETRACT FROM THE GOVERNMENT'S RIGHT TO TEST MATERIAL DELIVERED OR OFFERED FOR DELIVERY UNDER RESULTING CONTRACT TO DETERMINE COMPLIANCE WITH SPECIFICATIONS. * * *" THE INVITATION ALSO PROVIDED IN PARAGRAPH 4 FOR INSPECTION AND TESTING OF INITIAL PRODUCTION SAMPLES. IT IS REPORTED THAT INVITATIONS FOR THIS PROCUREMENT WERE PROVIDED TO 406 BIDDERS.

B-152027, DEC. 4, 1963

TO THE LANDSVERK ELECTROMETER COMPANY:

WE REFER TO YOUR PROTEST AGAINST THE RECENT AWARD OF CDV-742 RADIOLOGICAL DOSIMETERS FOR THE OFFICE OF CIVIL DEFENSE, MADE BY THE GENERAL SERVICES ADMINISTRATION TO THE BENDIX CORPORATION.

THE GSA ISSUED INVITATION NO. FPNVH-Z-48237-/2/-A-4-9-63 ON JANUARY 15, 1963. ITEM NO. 2 OF THE INVITATION CALLED FOR BIDS ON A QUANTITY OF 900,000 EACH CDV-742 RADIOLOGICAL DOSIMETERS, 0-200 ROENTGENS, IN ACCORDANCE WITH OFFICE OF CIVIL DEFENSE STANDARD ITEM SPECIFICATION CDV- 742, REVISED DECEMBER 19, 1962. THE REQUIREMENT WAS CHANGED BY SPECIAL NOTICE NO. 1, DATED JANUARY 21, 1963, TO PROVIDE FOR A PARTIAL SMALL BUSINESS SET-ASIDE ON 225,000 OF THE 900,000 UNITS. THE REMAINING QUANTITY OF 675,000 UNITS WAS LEFT UNRESTRICTED.

PARAGRAPH NO. 8 OF THE INVITATION STATED AS FOLLOWS:

"8. SAMPLES - PREPRODUCTION MODELS: BIDDER SHALL SUBMIT TO GENERAL SERVICES ADMINISTRATION, * * * FOR ARRIVAL NOT LATER THAN THE TIME SET FOR PUBLIC BID OPENING, * * * FIVE EACH CDV-742 RADIOLOGICAL DOSIMETERS PREPRODUCTION MODELS OF THE ITEMS BEING OFFERED. SAME WILL BE TESTED TO ESTABLISH WHETHER OR NOT THE ITEMS MEET THE NEEDS OF THE GOVERNMENT, AND ALSO TO DETERMINE COMPLIANCE WITH SPECIFICATIONS, PRIOR TO AWARDING A CONTRACT UNDER THIS INVITATION. * * * NON-ARRIVAL OF PREPRODUCTION MODELS AT THIS DESIGNATED ADDRESS BY BID OPENING TIME, OR SUBMISSION OF PREPRODUCTION MODELS NOT COMPLYING WITH SPECIFICATIONS, WILL RESULT IN REJECTION OF THE BID. * * * PRIOR TO AWARD OF CONTRACT, THE PREPRODUCTION MODELS WILL BE TESTED BY EITHER THE OFFICE OF CIVIL DEFENSE OR ITS DESIGNATED AGENT. THE OFFICE OF CIVIL DEFENSE SHALL THEN DETERMINE FROM THE RESULTS OF SUCH TESTING WHETHER OR NOT THE BIDDER HAS DEMONSTRATED HIS CAPABILITY TO MANUFACTURE THE REQUIRED ITEMS. PRODUCTION INSTRUMENTS DELIVERED UNDER ANY RESULTING CONTRACT SHALL CONFORM TO AND BE IDENTICAL TO THE APPROVED PREPRODUCTION MODELS. APPROVAL OF PREPRODUCTION MODELS WILL NOT DETRACT FROM THE GOVERNMENT'S RIGHT TO TEST MATERIAL DELIVERED OR OFFERED FOR DELIVERY UNDER RESULTING CONTRACT TO DETERMINE COMPLIANCE WITH SPECIFICATIONS. * * *"

THE INVITATION ALSO PROVIDED IN PARAGRAPH 4 FOR INSPECTION AND TESTING OF INITIAL PRODUCTION SAMPLES.

IT IS REPORTED THAT INVITATIONS FOR THIS PROCUREMENT WERE PROVIDED TO 406 BIDDERS. HOWEVER, WHEN THE BIDS WERE OPENED ON APRIL 9, 1963, ONLY THREE BIDS WERE RECEIVED. THESE WERE AS FOLLOWS:

THE LANDSVERK ELECTOMETER COMPANY

675,000 UNITS AT $3.68 PER UNIT

450,000 UNITS AT $4.15 PER UNIT

INDUSTRIAL ELECTRONIC HARDWARE CORPORATION

$4.25 PER UNIT LESS

1/2 OF 1 PERCENT - 20 DAY DISCOUNT

BENDIX CORPORATION

$4.24 PER UNIT

(BOTH LANDSVERK AND INDUSTRIAL ELECTRONIC ARE SMALL BUSINESS CONCERNS WHILE BENDIX IS A LARGE BUSINESS CONCERN.)

IN ACCORDANCE WITH THE SAMPLE PARAGRAPH OF THE INVITATION THE FIVE SAMPLE MODEL V-742 DOSIMETERS SUBMITTED BY YOUR FIRM AND BENDIX WERE SENT TO THE NATIONAL BUREAU OF STANDARDS, THE AGENT DESIGNATED BY THE OFFICE OF CIVIL DEFENSE (THE USING AGENCY) FOR TESTING OF THESE SAMPLES. IT APPEARS THAT INDUSTRIAL ELECTRONIC HAD FAILED TO PROVIDE ANY SAMPLES WITH ITS BID. THE NBS ISSUED ITS TEST REPORTS ON MAY 22, 1963. IT WAS REPORTED THAT YOUR SAMPLE GROUP WAS NOT IN COMPLIANCE WITH PARAGRAPH 4.1A OF THE SPECIFICATION,"OPERATIONAL TEMPERATURE," AND PARAGRAPH 5,"THERMO- MECHANICAL EQUILIBRIUM" (IT IS INDICATED THAT ALL FIVE OF YOUR SAMPLES FAILED THE TEMPERATURE OPERATING TEST, PAR. 4.1A). THE BENDIX SAMPLE GROUP WAS REPORTED TO BE IN COMPLIANCE UNDER THE TESTS CONDUCTED.

THE NBS TEST RESULTS WERE REPORTED TO THE OFFICE OF CIVIL DEFENSE, RADIOLOGICAL INSTRUMENT EVALUATION COMMITTEE. BY LETTER OF JUNE 7, 1963, THE COMMITTEE REPORTED TO THE GSA CONTRACTING OFFICER AS FOLLOWS:

"IN FORMAL MEETING ON TUESDAY, MAY 28, 1963, THE OCD RADIOLOGICAL INSTRUMENT EVALUATION COMMITTEE REVIEWED THE ENCLOSED NATIONAL BUREAU OF STANDARDS TEST REPORTS AND INSPECTED THE BID SAMPLES OF CDV-742 DOSIMETERS FURNISHED IN RESPONSE TO THIS INVITATION FOR BIDS. CONCLUSIONS OF THIS COMMITTEE ARE AS FOLLOWS:

(A) THE NATIONAL BUREAU OF STANDARDS TEST REPORT INDICATES THAT THE BID SAMPLES SUBMITTED BY THE LANDSVERK ELECTROMETER COMPANY DO NOT MEET THE TECHNICAL REQUIREMENTS OF THE OCD SPECIFICATION. FAILURE OF BID SAMPLES ON 4.1.A OPERATIONAL TEMPERATURE AND 4.5 THERMO-MECHANICAL EQUILIBRIUM TESTS ARE CONSIDERED A DESIGN DEFICIENCY.

(B) THE COMMITTEE FAILED TO FIND ANY SUBMISSION OF DRAWINGS, SAMPLES, AND MATERIAL SPECIFICATIONS AS REQUIRED BY PARAGRAPH 2.4.2 AND 2.5 OF THE OCD SPECIFICATION.

(C) THE NATIONAL BUREAU OF STANDARDS TEST REPORT INDICATES THAT THE BID SAMPLES SUBMITTED BY THE BENDIX CORPORATION MEET THE TECHNICAL REQUIREMENTS OF THE OCD SPECIFICATION.

(D) THE COMMITTEE ON INSPECTION FOUND EXTERIOR PAINT AND DECAL DEFICIENCIES ON THE BENDIX BID SAMPLES. THESE DEFICIENCIES WOULD REQUIRE CORRECTION ON THE INITIAL PRODUCTION SAMPLES.

"BASED ON THE FACTORS PRESENTED ABOVE, IT IS THE RECOMMENDATION OF THE OFFICE OF CIVIL DEFENSE THAT AWARD OF CONTRACT BE MADE TO THE BENDIX CORPORATION, CINCINNATI, OHIO, FOR THE DELIVERY OF CD V-742 DOSIMETERS CALLED FOR ON THIS INVITATION FOR BIDS.'

IN A FILE MEMORANDUM DATED JUNE 11, 1963, CONCERNING THIS PROCUREMENT, THE CONTRACTING OFFICER STATED AS FOLLOWS:

"TESTS CONDUCTED BY THE NATIONAL BUREAU OF STANDARDS INDICATED THAT THE LANDSVERK ELECTOMETER COMPANY BID SAMPLES DO NOT CONFORM TO THE SPECIFICATIONS IN TWO MAJOR AREAS WHICH CONSTITUTE A DESIGN DEFICIENCY. THIS BIDDER ALSO FAILED TO SUBMIT DRAWING SAMPLES AND MATERIAL SPECIFICATIONS REQUIRED WITH THE BID SAMPLES. FOR THESE REASONS, THE OFFICE OF CIVIL DEFENSE RECOMMENDED REJECTION OF THE LANDSVERK BID.

"THE NATIONAL BUREAU OF STANDARDS TEST REPORT ON THE BENDIX SAMPLES REVEALED TWO MINOR DEFICIENCIES WITH RESPECT TO THE INSTRUMENT EXTERIOR PAINT AND OCD DECALS WHICH COULD EASILY BE CORRECTED DURING INITIAL PRODUCTION. OCD HAS DETERMINED THAT THE BENDIX CORPORATION SAMPLES COMPLY WITH THE TECHNICAL REQUIREMENTS OF THE OCD SPECIFICATIONS AND HAS RECOMMENDED A CONTRACT BE AWARDED TO THE BENDIX CORPORATION.

"THE BENDIX CORPORATION AND THE LANDSVERK ELECTROMETER COMPANY ARE THE ONLY TWO KNOWN PRODUCERS OF THE CDV-742 DOSIMETERS. ALTHOUGH INDUSTRIAL ELECTRONIC HARDWARE CORPORATION HAD BID ON THIS REQUIREMENT, IT HAS NOT PREVIOUSLY PRODUCED THIS INSTRUMENT. THE BENDIX CORPORATION IS CURRENTLY DELIVERING CDV-742 INSTRUMENTS TO THE OCD UNDER GSA CONTRACTS GS-00S-37733 AND GS-00S-37944. THE LANDSVERK ELECTROMETER COMPANY HAS COMPLETED SHIPMENT OF 390,000 CDV-742 DOSIMETERS TO OCD DEPOTS ON MAY 29, 1963. WILL BE NOTED THAT THE INSTRUMENTS COVERED BY THE ABOVE CONTRACTS ARE IN ACCORDANCE WITH A SUPERSEDED OCD SPECIFICATION AND THE 900,000 INSTRUMENTS REQUIRED TO BE FURNISHED UNDER THIS IFB ARE COVERED BY A REVISED IMPROVED OCD SPECIFICATION.

"AS THE SITUATION STANDS, THERE IS NO SMALL BUSINESS CONCERN ELIGIBLE FOR NEGOTIATION OF THE SMALL BUSINESS SET-ASIDE PORTION OF THE IFB, 225,000 EACH DOSIMETERS. IN VIEW OF THIS AND THE FACTS OUTLINED HEREIN, AND SINCE FUNDS FOR THIS PROCUREMENT MUST BE OBLIGATED PRIOR TO JUNE 30, 1963, IT IS DEEMED IN THE BEST INTEREST OF THE GOVERNMENT TO REJECT ALL BIDS RECEIVED, DISSOLVE THE SMALL BUSINESS SET-ASIDE, AND PROCURE THE ENTIRE QUANTITY OF 900,000 DOSIMETERS BY NEGOTIATION FROM BENDIX CORPORATION. IT IS THE OPINION OF THE CONTRACTING OFFICER THAT A BETTER QUALITY INSTRUMENT CAN BE OBTAINED FROM BENDIX AT A CONSIDERABLE SAVINGS IN PRICE. NEGOTIATIONS WOULD BE CONDUCTED PURSUANT TO THE PROVISIONS OF SECTION 302 (C) (10) OF PUBLIC LAW 152.'

ON JUNE 28, 1963, A CONTRACT FOR THE TOTAL QUANTITY OF 900,000 UNITS WAS AWARDED TO THE BENDIX CORPORATION PURSUANT TO SECTION 1-3.210 OF THE FEDERAL PROCUREMENT REGULATIONS--- IMPRACTICABLE TO SECURE COMPETITION BY FORMAL ADVERTISING--- AT A NEGOTIATED PRICE OF $4.21 PER UNIT. (AN ADDITIONAL 88,616 UNITS WERE PURCHASED UNDER AN OPTION PROVIDED IN THE CONTRACT.)

YOUR PROTEST IS FOURFOLD. YOU CONTEND, FIRST, THAT THESE UNITS CAN READILY BE TESTED BEFORE ACCEPTANCE; HENCE, IT WAS UNDULY RESTRICTIVE AND IMPROPER TO REQUIRE SAMPLE UNITS AS A CONDITION OF THE BIDDING. SECONDLY, YOU CONTEND THAT THE BID SAMPLE REQUIREMENT OF THE INVITATION WENT SOLELY TO THE QUESTION OF THE BIDDERS' COMPETENCY; THUS, IT WAS IMPROPER TO REJECT YOUR BID WITHOUT SUBMITTING THE MATTER TO THE SMALL BUSINESS ADMINISTRATION UNDER THE CERTIFICATE OF COMPETENCY PROCEDURE. THIRDLY, YOU QUESTION WHY YOU WERE NOT SOLICITED UNDER THE NEGOTIATION AS A POTENTIAL SOURCE. FINALLY, YOU CONTEND THAT THE TESTING WAS IMPROPERLY CONDUCTED; AND THAT YOUR UNITS, IF PROPERLY TESTED, WOULD PASS THE REQUIRED TESTS.

IN OUR LETTER OF TODAY TO THE GENERAL SERVICES ADMINISTRATOR, WE CONSIDERED YOUR FIRST AND SECOND CONTENTIONS. A COPY OF THIS LETTER IS ENCLOSED.

YOUR THIRD CONTENTION IS THAT WHILE YOU MAY BE NONCONFORMING AS TO THE SAMPLE UNITS, YOU ARE A PRIOR RESPONSIBLE DOSIMETER SOURCE, AND, AS SUCH, IT SHOULD HAVE BEEN SOLICITED AS AN ELIGIBLE SOURCE ON THE NEGOTIATION.

THE NEGOTIATION WITH BENDIX WAS UNDERTAKEN PURSUANT TO FPR 1-3.210 (IMPRACTICABLE TO SECURE COMPETITION BY FORMAL ADVERTISING.) THE REGULATION SUBPART READS IN PERTINENT PART AS FOLLOWS:

"/A) APPLICATION. THE FOLLOWING ARE ILLUSTRATIVE OF CIRCUMSTANCES WITH RESPECT TO WHICH THIS AUTHORITY MAY BE USED:

(3) WHEN BIDS HAVE BEEN SOLICITED PURSUANT TO THE REQUIREMENTS OF FORMAL ADVERTISING, AND NO RESPONSIVE BID HAS BEEN RECEIVED FROM A RESPONSIBLE BIDDER.

(4) WHEN BIDS HAVE BEEN SOLICITED PURSUANT TO THE REQUIREMENTS OF FORMAL ADVERTISING AND THE RESPONSIVE BID OR BIDS DO NOT COVER THE QUANTITATIVE REQUIREMENTS OF THE INVITATION FOR BIDS, IN WHICH CASE, NEGOTIATION IS PERMITTED FOR THE REMAINING REQUIREMENTS OF THE INVITATION FOR BIDS.'

WE CONCLUDED IN OUR LETTER OF TODAY TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, THAT THE INVITATION PROVISIONS WITH RESPECT TO SAMPLES WERE USED TO DETERMINE YOUR "CAPABILITY TO MANUFACTURE" THE DOSIMETERS, AND THAT YOUR BID SHOULD THEREFORE NOT HAVE BEEN REJECTED WITHOUT REFERENCE OF THE MATTER TO THE SMALL BUSINESS ADMINISTRATION UNDER THE CERTIFICATE OF COMPETENCY PROCEDURE. SEE 40 COMP. GEN. 106, 111.

IN VIEW OF THIS, WE ARE OF THE OPINION THAT NEGOTIATION OF THE PROCUREMENT ON THE BASIS THAT RESPONSIVE BIDS WERE NOT RECEIVED FOR THE TOTAL QUANTITY REQUIRED WAS NOT WARRANTED, ALTHOUGH IT MAY BE THAT NEGOTIATION WOULD HAVE BEEN JUSTIFIED UNDER THE PUBLIC EXIGENCY EXCEPTION. EVEN IF SO NEGOTIATED, WE BELIEVE YOU SHOULD HAVE BEEN SOLICITED AS A POTENTIAL SUPPLIER.

THIS BRINGS US TO YOUR FINAL CONTENTION: THE NBS TESTS WERE IMPROPERLY CONDUCTED; AND IF PROPERLY TESTED YOUR SAMPLE UNITS WOULD HAVE PASSED.

THE SAMPLES WERE RETURNED TO YOU, AND YOU REPORT THAT THE SAMPLES WERE TESTED AND FOUND TO BE IN COMPLIANCE WITH THE SPECIFICATIONS. YOU CONCLUDE THAT THE NBS TESTING MUST HAVE BEEN FAULTY. IN THIS CONNECTION, YOU POINT OUT THAT YOU COMPLETED DELIVERY ON 390,000 UNITS UNDER ALMOST AN IDENTICAL SPECIFICATION, AND THESE WERE ACCEPTED BY THE GSA INSPECTORS. YOU SAY THAT YOU WOULD WELCOME RETESTING OF THE FIVE SAMPLES BY GSA INSPECTORS IN ORDER TO PROVE SPECIFICATION COMPLIANCE.

THE DEFICIENCIES IN YOUR SAMPLES FOUND BY THE NBS REFER TO PARAGRAPHS 4.1 AND 4.5 OF THE SPECIFICATION, UNDER THE SECTION PERTAINING TO "ENVIRONMENTAL REQUIREMENTS.' PARAGRAPH 4.1 PROVIDES AS FOLLOWS:

"4.1 OPERATION. THE DOSIMETERS SHALL MEET THE REQUIREMENTS OF THIS SPECIFICATION WHILE BEING SUBJECTED TO ANY PROBABLE COMBINATION OF THE FOLLOWING ENVIRONMENTAL CONDITIONS. ANY RESULTANT CHANGE IN CALIBRATION SHALL NOT BE MORE THAN 10 PERCENT FROM THE NORMAL CALIBRATION. (TESTS SHALL BE MADE AT APPROXIMATELY 80 PERCENT OF FULL SCALE, AND THE TEST PERIOD SHALL NOT EXCEED 8 HOURS.)

"A. TEMPERATURE IN THE RANGE OF MINUS 40 DEGREES F. TO PLUS 150 DEGREES F.

"B.PRESSURE EQUIVALENT OF ELEVATIONS UP TO 25,000 FEET ABOVE SEALEVEL.'

THE NBS TESTS INDICATE CALIBRATION DEFICIENCIES WHILE OPERATING AT PLUS 150 DEGREES F. YOU CONTEND THAT UNDER PARAGRAPH 4.1, WHILE IT WAS PROPER TO EXPOSE THE SAMPLES TO MINUS 40 DEGREES F. AND PLUS 150 DEGREES F. DURING THE TEST PERIOD, IT WAS IMPROPER TO TAKE THE CALIBRATION AT THESE TEMPERATURE EXTREMES; THAT THE CALIBRATIONS SHOULD BE MADE AT ROOM TEMPERATURE, I.E. THE PROBABLE ENVIRONMENTAL CONDITION. WE DISAGREE. WE READ THE PARAGRAPH, THE PROBABLE ENVIRONMENTAL CONDITIONS ARE DEFINED TO BE THE RANGE OF MINUS 40 DEGREES F. TO PLUS 150 DEGREES F. CONSEQUENTLY, THE UNITS MUST SATISFACTORILY CALIBRATE AT THESE TEMPERATURES AS WELL AS ROOM TEMPERATURE. (NOTE, FOR EXAMPLE, THAT UNLIKE 4.1A, PAR. 4.2 DOES SPECIFICALLY PROVIDE FOR A CALIBRATION AFTER A RETURN TO "NORMAL ROOM ENVIRONMENT.'' PARAGRAPH 4.5 STATES:

"4.5 THERMO-MECHANICAL EQUILIBRIUM. THE APPARENT CHANGE OF DOSIMETER READING DUE TO TEMPERATURE VARIATIONS BETWEEN MINUS 40 AND PLUS 150 DEGREES F. SHALL NOT EXCEED PLUS OR MINUS 5 PERCENT OF THE FULL SCALE READING. THIS REQUIREMENT APPLIES AT BOTH EQUILIBRIUM AND TRANSIENT TEMPERATURE CONDITIONS.' NBS REPORTED THAT THE LANDSVERK SAMPLES EXCEEDED THE PERMISSIBLE 5 PERCENT SHIFT (10 ROENTGENS, OR 5 PERCENT OF THE FULL SCALE OF 200 ROENTGENS.) YOU CONTEND THAT THE PERMISSIBLE 5 PERCENT (10 ROENTGENS) SHIFT SHOULD BE ALLOWED FROM ROOM TEMPERATURE TO EACH TEMPERATURE EXTREME RATHER THAN OVER THE FULL SCALE--- THE REQUIREMENT USED BY THE NBS. AGAIN, WE DISAGREE WITH YOUR CONTENTION. THE PARAGRAPH STATES THAT THE READING "BETWEEN MINUS 40 AND PLUS 150 DEGREES F. SHALL NOT EXCEED PLUS OR MINUS 5 PERCENT OF THE FULL SCALE READING.' WE SEE NO BASIS FOR INTERPRETING THIS LANGUAGE TO MEAN 5 PERCENT FROM ROOM TEMPERATURE TO EACH TEMPERATURE EXTREME, AS YOU CONTEND.

THE SPECIFICATION (NO. CDV-742, REVISED DECEMBER 19, 1962) PROVIDES (PARA. 5.1) THAT SPECIFICATION CONFORMANCE "SHALL BE DETERMINED ACCORDING TO THE STANDARD PROCEDURES OF THE NATIONAL BUREAU OF STANDARDS.' WITH REGARD TO PREPRODUCTION MODELS (SAMPLES), IT PROVIDES THAT FIVE DOSIMETERS WILL BE TESTED "FOR CONFORMANCE * * * AS REQUIRED BY THE INVITATION FOR BIDS.' PRODUCTION TESTING, ON THE OTHER HAND, IS COVERED IN "ATTACHMENT C" TO THE SPECIFICATION AND PRESUMABLY IS CONDUCTED BY GSA INSPECTORS AT THE CONTRACTOR'S PLANT DURING THE PRODUCTION. UNDER ATTACHMENT C, THE GOVERNMENT INSPECTORS ARE INSTRUCTED (PARA. C3.1 OF THE ATTACHMENT) TO PERFORM CERTAIN TESTS; HOWEVER, THE CONTRACTOR CERTIFIES THAT ITS LOTS CONFORM TO CERTAIN OF THE SPECIFICATION REQUIREMENTS, INCLUDING PARAGRAPHS 4.1 AND 4.5 (PARA. C3.2). WE ARE ADVISED THAT THE TEST PROCEDURE UNDER THE SUPERSEDED SPECIFICATION WAS THE SAME AS THE CURRENT TEST PROCEDURE. ASSUMING THAT THE CHANGES MADE IN THE CURRENT SPECIFICATION DO NOT AFFECT PERFORMANCE UNDER PARAGRAPHS 4.1 AND 4.5, AS YOU ALLEGE TO BE THE CASE, THEN THE NONCONFORMANCE DETECTED BY NBS IN THE LANDSVERK SAMPLES WERE NOT NOTED UNDER YOUR PRIOR CONTRACT APPARENTLY BECAUSE THE PERTINENT TESTS WERE NOT CONDUCTED. WE ASSUME THIS BECAUSE--- IT MUST BE REMEMBERED--- PREAWARD SAMPLE TESTING WAS WAIVED IN THE 1962 FISCAL YEAR PROCUREMENTS; AND YOU PRESUMABLY CERTIFIED LOT COMPLIANCE TO PARAGRAPHS 4.1 AND 4.5 IN ACCORDANCE WITH YOUR PRESENT INTERPRETATION OF THESE PARAGRAPHS, RATHER THAN WITH THE INTERPRETATION ADOPTED BY NBS AS DISCUSSED ABOVE.

AS FOR RETESTING YOUR SAMPLE, SUCH A PROCEDURE WOULD NOT BE CONSONANT WITH SOUND BIDDING PRACTICES; THE SAMPLES HAVE BEEN OUT OF THE GOVERNMENT'S HANDS, AND IT APPEARS YOU HAD AMPLE OPPORTUNITY TO PREPARE YOUR SAMPLE FOR TESTING THE FIRST TIME.

YOU HAVE RECENTLY RAISED AN ADDITIONAL OBJECTION TO THE DEFICIENCIES IN CALIBRATION NOTED BY NBS IN ITS TESTS UNDER PARAGRAPH 4.1 OF THE SPECIFICATION, AND AN EVEN STRONGER OBJECTION TO THE CONCLUSION DRAWN THEREFROM BY OCD, NAMELY, THAT SUCH DEFICIENCIES IN CALIBRATION WERE DUE TO ELECTRICAL LEAKAGE. YOU POINT OUT THAT THE NBS TESTS CONTAIN INTERNAL EVIDENCE, BECAUSE OF THE FACT THAT THE TESTS UNDER 4.1A AND 4.5 WERE COMBINED, WHICH DEMONSTRATES THE IMPOSSIBILITY OF ELECTRICAL LEAKAGE AS A CAUSE FOR THE CALIBRATION DEFICIENCIES NOTED. YOUR POSITION ON THIS POINT IS PREDICATED ON THE ASSUMPTION THAT ELECTRICAL LEAKAGE NEVER INCREASES, EVEN UPON EXPOSURE TO RADIATION, FOR SUCCEEDING PERIODS OF TIME, ASSUMING CONSTANT TEMPERATURE. IT IS TRUE, AS YOU STATE, THAT COLUMN FIVE OF TABLE IV OF THE NBS REPORT SHOWS NO APPARENT ELECTRICAL LEAKAGE FOR THREE OF YOUR FIVE SAMPLES DURING THE 1 1/2 TO 2 HOUR PERIOD WHILE THE SAMPLES WERE BEING HEATED TO 150 DEGREES F., AND SHOWS A READING CHANGE OF THE SAME NATURE WHICH ELECTRICAL LEAKAGE WOULD CAUSE OF ONLY 6 AND 12 ROENTGENS FOR THE TWO REMAINING SAMPLES. COLUMN 2 OF TABLE III OF THE NBS REPORT SHOWS A READING CHANGE IN EXCESS OF NORMAL READINGS (BASED ON RADIATION EXPOSURE TO 150 ROENTGENS) OF FROM 16 1/2 TO 19 1/2 ROENTGENS FOR THE FIRST THREE SAMPLES AND 30 AND 40 1/2 ROENTGENS FOR THE OTHER TWO OCCURRING DURING THE ONE HOUR AND SEVEN MINUTES AT 150 DEGREES F. IMMEDIATELY FOLLOWING THE 1 1/2 TO 2 HOUR PERIOD DURING WHICH THE MAXIMUM CHANGE WHICH COULD HAVE BEEN DUE TO ELECTRICAL LEAKAGE FOR ANY SAMPLE WAS 12 ROENTGENS. WE AGREE THAT IF YOUR BASIC ASSUMPTION THAT ELECTRICAL LEAKAGE CANNOT INCREASE WITH TIME OR EXPOSURE TO RADIATION IS CORRECT, THE RESULTS GIVEN IN COLUMN 5 OF TABLE IV DEMONSTRATE THAT THE CALIBRATION DEFICIENCIES NOTED IN COLUMN 2 OF TABLE III COULD NOT BE DUE TO ELECTRICAL LEAKAGE. WE HAVE NO OPINION FROM NBS AS TO THE CORRECTNESS OF YOUR BASIC ASSUMPTION, HOWEVER, AND IN VIEW OF OUR DECISION THAT YOUR BID SHOULD NOT HAVE BEEN REJECTED WITHOUT REFERRAL TO THE SMALL BUSINESS ADMINISTRATION, WE BELIEVE IT TO BE UNNECESSARY TO DECIDE THIS POINT. WE DO FEEL THAT WE SHOULD COMMENT ON THE OCD STATEMENT THAT YOUR BID WAS "TOTALLY UNACCEPTABLE" BECAUSE OF OCD'S DETERMINATION THAT ELECTRICAL LEAKAGE WAS THE REASON FOR THE FAILURE OF YOUR SAMPLES TO MEET PARAGRAPH 4.1A OF THE SPECIFICATION. WE HAVE BEEN INFORMED BY OCD THAT PROBLEMS OF ELECTRICAL LEAKAGE HAVE BEEN FOUND IN DOSIMETERS FURNISHED BOTH BY YOU AND BENDIX. THESE PROBLEMS WERE NOTICED AS EARLY AS THE SPRING OF 1963 AND WE HAVE NO INDICATION THAT THEY WERE ANY WORSE IN THE CASE OF YOUR PRODUCTS THAN IN THE CASE OF BENDIX PRODUCTS. FROM THE RECORD BEFORE US IT APPEARS THAT THE BENDIX PRODUCTS WERE MANUFACTURED TO THE SAME SPECIFICATIONS AS THE CURRENT SPECIFICATIONS SO FAR AS ANY EFFECT ON ELECTRICAL LEAKAGE IS CONCERNED. DESPITE THIS PROBLEM OF ELECTRICAL LEAKAGE, NO CHANGE WAS MADE IN THE CURRENT SPECIFICATIONS WITH RESPECT TO THE ELECTRICAL LEAKAGE REQUIREMENT OF PARAGRAPH 2.7, WHICH WAS PASSED BY BOTH YOUR SAMPLES AND THE BENDIX SAMPLES. ANY CONCLUSION BY OCD, THEREFORE, THAT THE BENDIX SAMPLES INDICATED LESS LIKELIHOOD OF ELECTRICAL LEAKAGE MUST BE BASED ON THE CONCLUSION BY OCD, WHICH IS SPECIFICALLY NEITHER AGREED TO NOR DISAGREED WITH BY NBS, THAT THE CALIBRATION DEFICIENCIES IN YOUR SAMPLES WERE DUE TO ELECTRICAL LEAKAGE. WE BELIEVE THAT THE OCD CONCLUSION IS SUFFICIENTLY DOUBTFUL THAT CORROBORATION THEREOF SHOULD HAVE BEEN OBTAINED FROM NBS BEFORE IT WAS MADE THE BASIS FOR ANY DETERMINATION TO NEGOTIATE SOLELY WITH BENDIX.

WE ARE FACED WITH A DIFFICULT PROBLEM IN DECIDING WHAT ACTION SHOULD NOW BE TAKEN WITH RESPECT TO YOUR PROTEST. THERE ARE SEVERAL QUESTIONS WHICH WE BELIEVE SHOULD HAVE BEEN CONSIDERED MORE CAREFULLY BEFORE ANY AWARD WAS MADE. WE RECOGNIZE THE FACT THAT YOUR PROTEST WAS MADE IMMEDIATELY AFTER YOU WERE ADVISED OF THE REJECTION OF YOUR BID. RESOLUTION OF THE QUESTIONS RAISED BY YOUR PROTEST NECESSARILY TOOK SOME TIME BECAUSE OF THE TECHNICAL NATURE OF THE MATTERS INVOLVED. THE FACT REMAINS, HOWEVER, THAT AWARD WAS MADE TO BENDIX ON JUNE 28, 1963, OVER FOUR MONTHS AGO, AND IT MUST BE ASSUMED THAT SUBSTANTIAL EXPENDITURES TOWARD COMPLETION OF ITS CONTRACT HAVE BEEN MADE BY THAT COMPANY. CONSIDERATION MUST ALSO BE GIVEN TO THE FACT THAT IF THE BENDIX CONTRACT WERE TO BE CANCELLED, THE FUNDS OBLIGATED THEREUNDER, WHICH ARE IN EXCESS OF $4,000,000 WOULD REVERT TO THE TREASURY AND WOULD NO LONGER BE AVAILABLE TO PURCHASE DOSIMETERS FROM ANYONE. IN VIEW OF THESE CONSIDERATIONS, AND DESPITE OUR DISAPPROVAL OF THE ACTIONS TAKEN BY OCD, AND GSA AS ITS PURCHASING AGENT, WE DO NOT BELIEVE IT WOULD BE IN THE BEST INTERESTS OF THE UNITED STATES TO DIRECT CANCELLATION OF THE BENDIX CONTRACT.