B-158911, NOVEMBER 8, 1966, 46 COMP. GEN. 395

B-158911, NOVEMBER 8, 1966, 46 COMP. GEN. 395

CONTRACTS - SPECIFICATIONS - CONFORMABILITY OF EQUIPMENT, ETC; OFFERED - COMPATIBILITY WITH EXISTING EQUIPMENT COMPLIANCE WITH THE COMPATIBILITY OF EQUIPMENT REQUIREMENT IN THE PERFORMANCE TYPE SPECIFICATIONS FOR THE EXPANSION OF A COAXIAL SWITCHING SYSTEM, WHERE THE END RESULT DESIRED WAS INDICATED WITHOUT INCLUDING DESIGNS PARTICULARLY DESCRIBING EACH COMPONENT, AND BIDDERS WERE NOT REQUIRED TO SUBMIT DESCRIPTIVE LITERATURE, ENGINEERING DATA, OR ANY INDICATION OF HOW THE SPECIFICATIONS WOULD BE MET, MUST BE DETERMINED BEFORE THE EQUIPMENT OFFERED BY THE LOW BIDDER MAY BE ACCEPTED. IF THE FUNCTION TO BE SERVED BY THE WHOLE SYSTEM CAN BE MET WITH EQUIPMENT WHICH NEED NOT BE COMPATIBLE, THEN ALL BIDS SHOULD BE REJECTED AND THE PROCUREMENT READVERTISED TO REFLECT THIS DETERMINATION, AND FUTURE BIDDERS SHOULD BE REQUIRED TO SUBMIT ENOUGH INFORMATION TO PROVIDE A BASIS FOR EVALUATING THE EQUIPMENT OFFERED AGAINST THE NEEDS OF THE GOVERNMENT.

TO THE SECRETARY OF THE AIR FORCE, NOVEMBER 8, 1966:

REFERENCE IS MADE TO OUR DECISION 45 COMP. GEN. 815 WHEREIN WE DENIED THE PROTEST OF AMERICAN MACHINE AND FOUNDRY COMPANY (AMF) AGAINST AWARD TO DON LEE ELECTRONICS COMPANY (DON LEE) UNDER INVITATION FOR BIDS NO. 34-601-66- 381 (OCAMC) ISSUED BY HEADQUARTERS, OKLAHOMA CITY AIR MATERIEL AREA, TINKER AIR FORCE BASE, OKLAHOMA (OCAMA), ON FEBRUARY 7, 1966. THE INVITATION SOUGHT BIDS ON THE ENGINEERING AND EQUIPMENT NEEDED TO EXPAND AN EXISTING 2X3 HIGH FREQUENCY COAXIAL SWITCHING SYSTEM INTO AN 8X14 SYSTEM. THE SPECIFICATIONS WERE PERFORMANCE TYPE, INDICATING THE END RESULT DESIRED AND SUCH GENERAL CRITERIA AS TIME REQUIREMENTS, POWER CAPACITY, SPACE LIMITATIONS, SAFETY FEATURES, CONTROL TECHNIQUES, AND THE LIKE BUT NOT INCLUDING DESIGNS PARTICULARLY DESCRIBING EACH COMPONENT.

SINCE THE INVITATION DID NOT REQUIRE THE SUBMISSION OF DESCRIPTIVE LITERATURE OR TECHNICAL DATA, ALL OF THE BIDDERS WHO OFFERED TO COMPLY WITH THE INVITATION, INCLUDING DON LEE, WERE RESPONSIVE.

AMF'S ORIGINAL PROTEST CENTERED ON SECTION 3.4 OF THE WORK STATEMENT, WHICH SPECIFIED THAT ALL NEW EQUIPMENT "SHALL BE COMPATIBLE WITH" THE PRESENTLY INSTALLED EQUIPMENT, AND CONTENDED THAT, SINCE DON LEE PROPOSED TO FURNISH NONVACUUM SWITCHES INSTEAD OF THE PRESENT TYPE VACUUM SWITCHES, DON LEE'S BID WAS NONRESPONSIVE. PARTLY ON THE BASIS OF THE AIR FORCE REPORT DATED MAY 13, 1966, WHEREIN THE RESPONSIBLE ENGINEERING ACTIVITY CONCLUDED THAT NONVACUUM SWITCHES COULD BE CAMPATIBLE WITH THE PRESENTLY INSTALLED EQUIPMENT, AND PARTLY BECAUSE, AS A MATTER OF DEFINITION, THE WORD "COMPATIBLE" IS NOT NECESSARILY LIMITED TO "IDENTICAL", WE HELD THAT DON LEE NEED NOT FURNISH VACUUM SWITCHES TO CONFORM TO THE WORK STATEMENT.

WE HAVE SUBSEQUENTLY LEARNED FROM THE AIR FORCE REPORT OF OCTOBER 5, 1966, TO THIS OFFICE, THAT DON LEE INTENDS TO REMOVE AND REPLACE THE EXISTING 2X3 MATRIX, AND ASSOCIATED SWITCHES, WITH AN ENTIRELY NEW 8X13 MATRIX UTILIZING ONLY NONVACUUM SWITCHES. AS A RESULT OF THIS APPROACH THE REPORT CONCLUDES "* * * INTEGRATION OR COMPABILITY OF THE EQUIPMENT NO LONGER POSES A PROBLEM;,

WHILE WE AGREE THAT COMPLETE REPLACEMENT OF THE EXISTING SWITCHING SYSTEM WITH AN ENLARGED SYSTEM OF A DIFFERING AND NONCOMPATIBLE DESIGN REMOVES ANY PROBLEM OF COMPATIBILITY, WE DO NOT AGREE THAT THIS SOLVES THE QUESTION WHETHER THE INVITATION REQUIRED COMPATIBILITY. SECTION 3.4 OF THE WORK STATEMENT REQUIRED THAT SWITCHING EQUIPMENT TO BE FURNISHED BY THE SUCCESSFUL BIDDER BE ,COMPATIBLE WITH GOVERNMENT OWNED EQUIPMENT PRESENTLY INSTALLED IN THE PLANT;, IT CANNOT BE DISPUTED THAT THE PRESENTLY FUNCTIONING 2X3 MATRIX OF THE EXISTING SWITCHING SYSTEM IS "GOVERNMENT OWNED EQUIPMENT PRESENTLY INSTALLED IN THE PLANT;, THE CLEAR MEANING OF THE "COMPATIBILITY" REQUIREMENT THUS SEEMS TO BE THAT THE "EQUIPMENTS TO EXPAND THE EXISTING 2X3 HIGH FREQUENCY COAXIAL SWITCHING SYSTEM", AS CALLED FOR BY SECTION 1.1 OF THE WORK STATEMENT, MUST BE COMPATIBLE WITH THE EXISTING 2X3 MATRIX. IT IS TRUE, AS STATED IN WESTERN GEEIA REGION MESSAGE GE WERR 02577 DATED MAY 11, 1966, THAT THE STATEMENT OF WORK "DID NOT SPECIFICALLY LIMIT THE REQUIREMENT TO VACUUM SWITCHES" EVEN THOUGH THE "STATE OF THE ART WAS SUCH THAT TECHNICAL SPECIFICATIONS IN THE SOW WOULD NORMALLY HAVE BEEN MET ONLY BY VACUUM SWITCHES;, WE INTERPRET THIS AS MEANING THAT SWITCHES OTHER THAN THOSE OF A VACUUM TYPE MIGHT BE ACCEPTABLE, PROVIDED THAT THEY WERE COMPATIBLE WITH THE VACUUM SWITCHES "PRESENTLY INSTALLED IN THE PLANT" AS REQUIRED BY SECTION 3.4 OF THE WORK STATEMENT. IT IS OUR UNDERSTANDING THAT THE SWITCHES PROPOSED TO BE FURNISHED BY DON LEE ARE NOT COMPATIBLE WITH THE VACUUM SWITCHES PRESENTLY INSTALLED, AND THAT DON LEE PROPOSES TO SIDE-STEP THE PROBLEM OF COMPATIBILITY BY REMOVING THE EXISTING SWITCHES, AND INSTALLING A COMPLETELY NEW 8X10 MATRIX INSTEAD OF EXPANDING THE EXISTING 2X3 MATRIX. OUR CONCLUSION IS THAT THE INVITATION REQUIREMENT FOR COMPATIBILITY WITH THE EQUIPMENT PRESENTLY INSTALLED WILL NOT BE MET BY THE REMOVAL OF A PORTION OF THAT EQUIPMENT TO AVOID THE QUESTION OF COMPATIBILITY.

THE POSITION TAKEN BY YOUR DEPARTMENT ON THIS PROBLEM DOES RAISE ANOTHER QUESTION, HOWEVER. OUR INITIAL UNDERSTANDING OF THAT POSITION, AS REFLECTED IN OUR DECISION OF JUNE 21, 1966, WAS THAT COMPATIBILITY WITH THE EXISTING VACUUM SWITCHES WAS EXPECTED AND REQUIRED, BUT THAT BECAUSE OF THE STATE OF THE ART IT WAS POSSIBLE THAT SUCH COMPATIBILITY COULD BE ACHIEVED WITH OTHER THAN VACUUM SWITCHES. THE POSITION PRESENTLY EXPRESSED BY YOUR DEPARTMENT APPEARS TO US TO BE A NEGATION OF YOUR PREVIOUS POSITION THAT SUCH COMPATIBILITY IS REQUIRED. THE QUESTION AS TO WHAT THE ACTUAL NEEDS OF YOUR DEPARTMENT ARE IS OF A TECHNICAL NATURE ON WHICH WE EXPRESS NO OPINION.

WE DO CONCLUDE, HOWEVER, THAT THE EQUIPMENT PROPOSED TO BE FURNISHED BY DON LEE MAY NOT BE ACCEPTED AS COMPLYING WITH THE INVITATION REQUIREMENTS UNLESS IT FIRST BE DETERMINED THAT SUCH COMPATIBILITY EXISTS, REGARDLESS OF THE PROPOSED AVOIDANCE OF THIS PROBLEM BY NONUTILIZATION OF THE EXISTING 2X3 MATRIX. ON THE OTHER HAND, IF YOU DETERMINE THAT THE FUNCTION TO BE SERVED BY THE COAXIAL SWITCHING SYSTEM AS A WHOLE CAN AS WELL BE MET BY REPLACEMENT OF THE PRESENT MATRIX WITH A LARGER MATRIX USING SWITCHES WHICH NEED NOT BE COMPATIBLE WITH THE VACUUM SWITCHES PRESENTLY INSTALLED, THEN ALL BIDS UNDER THE CURRENT INVITATION SHOULD BE REJECTED AND THE PROCUREMENT READVERTISED WITH TERMS WHICH REFLECT THIS DETERMINATION.

WE NOTE THAT MUCH ADMINISTRATIVE DIFFICULTY AND DELAY WAS ENCOUNTERED BY THIS OFFICE AND YOUR DEPARTMENT DUE TO THE PROBLEM OF ASCERTAINING WHETHER BIDS MET THE REQUIREMENTS OF AN INVITATION WHICH CONTAINED PERFORMANCE SPECIFICATION BUT DID NOT REQUIRE THE SUBMISSION OF DESCRIPTIVE LITERATURE, ENGINEERING DATA, OR ANY INDICATION OF HOW THE BIDDER INTENDED TO COMPLY.

IT SEEMS ADVISABLE THAT, IN ORDER TO AVOID A REPETITION OF THE PROBLEM PRESENTED HERE, OF A BID WHICH IS LEGALLY RESPONSIVE BUT WITHOUT ANY INDICATION OF HOW THE BIDDER INTENDS TO SATISFY THE TECHNICAL REQUIREMENTS OF THE INVITATION, FUTURE BIDDERS SHOULD BE REQUIRED TO SUBMIT ENOUGH INFORMATION TO PROVIDE A BASIS FOR EVALUATING THE OFFERED GOODS AGAINST THE GOVERNMENT'S NEEDS. THAT IS, AN ADVERTISED INVITATION FOR BIDS SHOULD CONTAIN SOME MEANS OF JUDGING TECHNICAL COMPLIANCE BY EXAMINING THE BID, SO THAT BIDS WHICH WILL NOT SATISFY THE GOVERNMENT'S REQUIREMENTS CAN BE REJECTED AS NONRESPONSIVE.