B-151643, AUG. 7, 1963

B-151643, AUG. 7, 1963

TO THE ELECTRONIC TUBE AND INSTRUMENT DIVISION OF GENERAL ATRONICS CORPORATION:

BY LETTERS DATED MAY 29, JULY 2 AND 16, 1963, WITH ENCLOSURES, YOU PROTESTED AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. 600-481-63'S TO ANY BIDDER OTHER THAN YOUR FIRM.

THE INVITATION DATED FEBRUARY 7, 1963, REQUESTED BIDS ON A QUALIFIED PRODUCTS BASIS FOR A QUANTITY OF AN/USM-117 OSCILLOSCOPES AND RELATED DATA. BIDDERS WERE ADVISED THAT AWARDS WOULD BE MADE ONLY FOR SUCH PRODUCTS THAT HAVE, PRIOR TO THE TIME SET FOR OPENING OF BIDS, BEEN TESTED AND QUALIFY FOR INCLUSION IN QUALIFIED PRODUCTS LIST 23124. THE INVITATION PROVIDED THAT THE OSCILLOSCOPES SHALL BE IN ACCORDANCE WITH SPECIFICATION MIL-O-23124/SHIPS) DATED DECEMBER 8, 1961, AND AMENDMENT 3 DATED SEPTEMBER 1, 1962. THIS SPECIFICATION SET FORTH THE REQUIREMENTS, COMPONENT PARTS, MATERIALS, DESIGN, CONSTRUCTION, PERFORMANCE, STANDARDS, DIMENSIONS, TOLERANCE AND WORKMANSHIP FOR THE PRODUCT, AS WELL AS THE TEST METHODS THAT THE PRODUCT HAD TO BE SUBJECTED TO BEFORE APPROVAL AND ACCEPTANCE BY THE GOVERNMENT.

TWO BIDS WERE RECEIVED AND OPENED ON MAY 22, 1963, AND IT APPEARED THAT CHEMICAL ELECTRONICS, INC. (CEI), SUBMITTED THE LOWEST BID IN THE AMOUNT OF $739,964.84 FOLLOWED BY YOUR BID IN THE AMOUNT OF $766,061.50. YOU CONTEND THAT SINCE THE PRODUCT OFFERED BY CEI WAS CONDITIONALLY APPROVED FOR INCLUSION ON QUALIFIED PRODUCTS LIST 23124, ITS BID WAS NONRESPONSIVE TO THE REQUIREMENTS OF THE INVITATION.

CEI'S SAMPLE OSCILLOSCOPE WAS APPROVED FOR QUALIFICATION BY LETTER DATED MAY 17, 1963, WHICH READ IN PART:

"NEW YORK NAVAL SHIPYARD TEST REPORT NUMBER 6397/921: WJH P.R. 1, DATED 16 MAY 1963, INDICATES THAT YOUR SAMPLE OSCILLOSCOPE SUCCESSFULLY PASSED THE QUALIFICATION TESTS UNDER * * * MILITARY SPECIFICATION MIL O- 23124/SHIPS), DATED 8 DECEMBER 1961, AND AMENDMENT 3, DATED 1 SEPTEMBER 1962.

"QUALIFICATION APPROVAL IS GRANTED YOUR PRODUCT * * * CONDITIONED UPON USE OF A CATHODE RAY TUBE WHICH MEETS THE EQUIPMENT SPECIFICATION. * *

IN THIS CONNECTION, YOU POINT OUT THE QUALIFICATION APPROVAL RECEIVED BY GENERAL ATRONICS ON MAY 14, 1962, NOT ONLY COVERED THE OSCILLOSCOPE BUT ALSO ALL SUBASSEMBLIES AND ACCESSORIES.

WE ARE OF THE VIEW THAT THE OMISSION OF REFERENCES TO SUBASSEMBLIES AND ACCESSORIES IN THE CEI APPROVAL WAS IMMATERIAL SO FAR AS IT AFFECTED THE INCLUSION OF CEI'S PRODUCT ON THE QUALIFIED PRODUCTS LIST. THIS IS AMPLY SUPPORTED BY THE ADMINISTRATIVE STATEMENT ON THIS POINT OF CONTENTION.

"OBVIOUSLY, THIS IS A MATTER OF FORM NOT SUBSTANCE. WITH ONE EXCEPTION, * * * THE ACCESSORIES LISTED IN BOTH APPROVAL LETTERS WERE THE SAME. THE NOMENCLATURE AN-USM-117 COVERS BOTH THE OSCILLOSCOPE ITSELF AND THE ACCESSORIES. THE INVITATION LISTED AS A LINE ITEM ONLY THE ITEM AN-USM- 117 OSCILLOSCOPE AND DID NOT, BECAUSE IT WAS UNNECESSARY, LIST THE ACCESSORIES AS SEPARATE LINE ITEMS. THE ACCESSORIES ARE LISTED IN THE QPL ONLY AS A MATTER OF CONVENIENCE AND INFORMATION FOR NAVY STOCKING ACTIVITIES WHICH MAY HAVE TO ORDER THE ACCESSORIES. TO THE EXTENT THE SPECIFICATIONS REQUIRE QUALIFICATION TESTING OF THE ACCESSORIES AS SUCH AND TO THE EXTENT TESTS OF THE OSCILLOSCOPE ITSELF REQUIRE USE OF THE ACCESSORIES, SUCH TESTS WERE PERFORMED AND PASSED. ACCORDINGLY, THE CEI SAMPLE AN/USM-117 INCLUDING THE OSCILLOSCOPE ITSELF AND THE ACCESSORIES WERE ENTITLED TO BE AND WERE APPROVED AS QUALIFIED, REGARDLESS OF THE FORM OF THE APPROVAL LETTER OR THE LISTING OF THE ACCESSORIES.'

WE NOTE THAT ASPR 1-1101 (B) DEFINES "QUALIFIED PRODUCTS" AS THOSE WHICH HAVE BEEN SUBJECTED TO EXAMINATION AND TESTS AND "HAVE BEEN FOUND TO SATISFY ALL REQUIREMENTS OF THE APPLICABLE SPECIFICATION.' THEREFORE, WE AGREE THAT QUALIFICATION APPROVAL OF THE PRODUCT ITSELF CONSTITUTES ALSO QUALIFICATION OF ITS COMPONENT PARTS EVEN THOUGH THE NOTIFICATION OF QUALIFICATION APPROVAL DID NOT COVER THE COMPONENTS SPECIFICALLY.

YOU POINT OUT ALSO THAT THE QUALIFICATION APPROVAL LETTER TO CEI DID NOT INCLUDE IN THE LIST OF APPROVED COMPONENTS A REFERENCE TO THE "R.F. PROBES," REQUIRED BY PARAGRAPH 3.4.6.2 OF THE SPECIFICATION TO BE HEWLETT- PACKARD TYPE AC-21A OR EQUIVALENT, AS APPROVED BY THE PROCURING ACTIVITY. AS INDICATED ABOVE, THE OSCILLOSCOPE OF CEI "SUCCESSFULLY PASSED THE QUALIFICATION TESTS.' HENCE, THOUGH NOT SPECIFICALLY NOTED IN THE QUALIFICATION APPROVAL OF THE OSCILLOSCOPE. AS WE UNDERSTAND IT, ANY QUALIFIED OSCILLOSCOPE CONTAINING THE HEWLETT PACKARD PROBES OR THE ,EQUAL" HICKOK ELECTRICAL INSTRUMENT COMPANY PROBES WOULD BE ACCEPTABLE AND WOULD COMPLY WITH MIL-O-23124/SHIPS).

CONCERNING THE CONDITIONAL APPROVAL OF CEI'S OSCILLOSCOPE, IT IS YOUR VIEW THAT CEI FAILED TO DEMONSTRATE ITS CAPABILITIES TO FURNISH AN OSCILLOSCOPE WHICH WOULD BE UNQUALIFIEDLY APPROVED, AND THAT THE INVITATION DID NOT AUTHORIZE OR PROVIDE FOR CONSIDERATION OF A BID OFFERING A PRODUCT WHICH HAD BEEN CONDITIONALLY APPROVED. AS REPORTED BY THE PROCUREMENT AGENCY, THE CATHODE RAY TUBE SUPPLIED BY CEI WITH ITS SAMPLE OSCILLOSCOPES FAILED DURING QUALIFICATION TESTING, BUT WHEN ANOTHER TUBE WAS SUBSTITUTED, THE SAMPLES SUCCESSFULLY PASSED THE TESTS. WHILE QUESTION MAY EXIST AS TO THE TYPE AND MANUFACTURE OF THE CATHODE RAY TUBE SUBSTITUTED AND ALSO WHETHER THE GOVERNMENT, ON ITS OWN INITIATIVE, PROVIDED THE SUBSTITUTE TUBE, WE DO NOT BELIEVE THAT RESOLUTION OF THESE QUESTIONS IS PERTINENT TO OUR CONSIDERATION OF YOUR PROTEST. THE QUESTION FOR CONSIDERATION IS WHETHER CEI'S OSCILLOSCOPE WAS PROPERLY APPROVED FOR LISTING ON QUALIFIED PRODUCTS LISTS 23124. ADMITTEDLY, CEI'S PRODUCT WAS QUALIFIED ONLY AFTER A DEFECTIVE CATHODE RAY TUBE WAS REPLACED BY ANOTHER TUBE. IT IS ALSO APPARENT THAT THE PRODUCT QUALIFICATION APPROVAL WAS SUBJECT TO USE OF A CATHODE RAY TUBE WHICH WOULD MEET THE SPECIFICATIONS. HOWEVER, THE ADVERTISED SPECIFICATIONS REQUIRE THAT PRODUCTS LISTED ON THE QUALIFIED PRODUCTS LIST "SHALL BE IN ACCORDANCE WITH MILITARY SPECIFICATION MIL O-23124 * * *.' HENCE, AND NOTWITHSTANDING THE FORM OR SUBSTANCE OF THE QUALIFICATION APPROVAL, THE ESSENTIAL CRITERIA FOR DETERMINING WHETHER THE ADVERTISED NEEDS WILL BE MET ARE THE SPECIFICATIONS AND NOT THE FORMAT OF THE QUALIFICATION APPROVAL. CF. 40 COMP. GEN. 352. IN OUR VIEW THEREFORE, CEI'S BID BASED ON ITS OSCILLOSCOPE AS QUALIFIED AND LISTED WAS RESPONSIVE TO THE INVITATION REQUIREMENTS. THE RESPONSIVENESS OF CEI'S BID TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION WAS FIXED AND DETERMINED AT THE TIME BIDS WERE OPENED, AND SUBSEQUENT EVENTS, SUCH AS CHANGE IN THE FORMAT AND DETAILS OF INFORMATION IN THE QUALIFIED PRODUCTS LIST, ARE NOT FOR CONSIDERATION IN DETERMINING BID RESPONSIVENESS. CF. 41 COMP. GEN. 366.

FOR THESE REASONS, WE FIND NO LEGAL BASIS TO HOLD THAT CEI'S BID WAS NONRESPONSIVE OR OTHERWISE ..END :