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B-170550, DEC. 9, 1970

B-170550 Dec 09, 1970
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PROTESTANT'S DEVIATION FROM THE REQUIREMENT THAT BIDDERS WOULD HAVE TO FURNISH AN ION PUMP IS GOOD CAUSE FOR REJECTING ITS BID AS NONRESPONSIVE FOR IT IS WITHIN THE COGNIZANCE OF THE CONTRACTING AGENCY TO REQUIRE THE MANUFACTURE OF A PRODUCT WHICH WILL MEET THE NEEDS OF THE GOVERNMENT. WHERE PROTESTANT DID NOT FILE AN OBJECTION TO THE BID REQUIREMENT IT COULD BE CONSIDERED TO HAVE ACQUIESED IN THE ADMINISTRATIVE ACTION SPECIFYING THIS REQUIREMENT AND THEREFORE THE PROTEST IS DENIED. TO KEVEX CORPORATION: REFERENCE IS MADE TO THE LETTER OF OCTOBER 22. IN OUR DECISION OF OCTOBER 15 WE CONCLUDED THAT THERE WAS NO BASIS FOR QUESTIONING THE DETERMINATION TO REQUIRE BIDDERS TO FURNISH AN ION PUMP AND THAT YOUR BID WHICH DEVIATED FROM THIS REQUIREMENT WAS PROPERLY REJECTED AS NONRESPONSIVE.

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B-170550, DEC. 9, 1970

BID PROTEST - RESTRICTIVE SPECIFICATION DENIAL OF PROTEST BY KEVEX CORPORATION AGAINST THE AWARD OF A CONTRACT BY THE GEOLOGICAL SURVEY, DEPT. OF THE INTERIOR TO LOW BIDDER, NUCLEAR EQUIPMENT CORPORATION. PROTESTANT'S DEVIATION FROM THE REQUIREMENT THAT BIDDERS WOULD HAVE TO FURNISH AN ION PUMP IS GOOD CAUSE FOR REJECTING ITS BID AS NONRESPONSIVE FOR IT IS WITHIN THE COGNIZANCE OF THE CONTRACTING AGENCY TO REQUIRE THE MANUFACTURE OF A PRODUCT WHICH WILL MEET THE NEEDS OF THE GOVERNMENT; FURTHER, WHERE PROTESTANT DID NOT FILE AN OBJECTION TO THE BID REQUIREMENT IT COULD BE CONSIDERED TO HAVE ACQUIESED IN THE ADMINISTRATIVE ACTION SPECIFYING THIS REQUIREMENT AND THEREFORE THE PROTEST IS DENIED.

TO KEVEX CORPORATION:

REFERENCE IS MADE TO THE LETTER OF OCTOBER 22, 1970, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF OUR DECISION B-170550, OCTOBER 15, 1970, IN WHICH WE DENIED YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO ANOTHER CONCERN UNDER INVITATION FOR BIDS NO. 71-1, ISSUED BY THE UNITED STATES GEOLOGICAL SURVEY, DENVER, COLORADO, DEPARTMENT OF THE INTERIOR. IN OUR DECISION OF OCTOBER 15 WE CONCLUDED THAT THERE WAS NO BASIS FOR QUESTIONING THE DETERMINATION TO REQUIRE BIDDERS TO FURNISH AN ION PUMP AND THAT YOUR BID WHICH DEVIATED FROM THIS REQUIREMENT WAS PROPERLY REJECTED AS NONRESPONSIVE.

OUR DECISION OF OCTOBER 15 QUOTED AN EXCERPT FROM THE DEPARTMENT OF THE INTERIOR'S REPORT WHICH STATED IN PART THAT TWO SOMEWHAT SIMILAR SYSTEMS WERE INSTALLED WITHIN THE LAST 18 MONTHS WITH ION PUMPS IN THEM. YOUR LETTER OF OCTOBER 22 QUESTIONS WHEN THESE SYSTEMS WERE MANUFACTURED AND IN THIS REGARD YOU HAVE BROUGHT TO OUR ATTENTION THAT NUCLEAR EQUIPMENT CORPORATION, THE SUCCESSFUL BIDDER, PURCHASED THE ENTIRE STOCK OF TMC PHOTON SPECTROMETER SYSTEMS FROM TECHNICAL MEASUREMENT CORPORATION WHICH WENT BANKRUPT IN 1967. YOUR LETTER OF OCTOBER 22 ASSERTS THAT IN THE PARTICULAR TECHNOLOGY INVOLVED IN THIS PROCUREMENT A PRODUCT BECOMES ALMOST COMPLETELY OBSOLETE IN A 12-MONTH PERIOD.

WE HAVE BEEN ADVISED BY THE GEOLOGICAL SURVEY THAT THE TWO ION PUMP SYSTEMS REFERRED TO IN INTERIOR'S REPORT WERE INSTALLED AT THE PLANTS OF TWO PRIME CONTRACTORS WITH THE ATOMIC ENERGY COMMISSION AND THAT THE SYSTEM AT EACH LOCATION WAS INSTALLED BY NUCLEAR EQUIPMENT CORPORATION.

WE HAVE CHECKED WITH THE GEOLOGICAL SURVEY AND THAT ACTIVITY IS STILL CONVINCED THAT IT NEEDS AN ION PUMP. AS WE INDICATED IN OUR DECISION OF OCTOBER 15, WHETHER SPECIFICATIONS ARE ADEQUATE TO PERMIT OR REQUIRE THE MANUFACTURE OF A PRODUCT WHICH WILL MEET THE NEEDS OF THE GOVERNMENT IS A MATTER PRIMARILY WITHIN THE COGNIZANCE OF THE CONTRACTING AGENCY.

ADDITIONALLY, WE BELIEVE THAT THE APPROPRIATE TIME FOR PROTESTING IN THIS CASE WAS BEFORE BID OPENING. BY YOUR PARTICIPATION IN SUBMITTING A BID, WITHOUT OBJECTION TO THE ION PUMP REQUIREMENT, YOU COULD LOGICALLY BE CONSIDERED AS HAVING ACQUIESCED IN THE ADMINISTRATIVE ACTIONS SPECIFYING THIS REQUIREMENT. ACCORDINGLY, WE FIND NO PROPER BASIS TO QUESTION THE LEGALITY OF THE AWARD TO THAT BIDDER WHICH SUBMITTED THE LOW BID CONFORMING TO THE REQUIREMENTS OF THE SPECIFICATIONS.

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