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B-153169, MAR. 20, 1964

B-153169 Mar 20, 1964
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TO THE MURDOCK CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 20. THE LOWEST BID WAS SUBMITTED BY ALMO INDUSTRIAL ELECTRONICS. THE NEXT LOWEST BID WAS SUBMITTED BY YOUR FIRM AND YOU QUOTED AN OVER-ALL PRICE OF $14. WAS THIRD LOW BIDDER WITH A PRICE OF $15.251 FOR ITEM 1 ONLY. IT IS REPORTED THAT NECESSARY MILITARY PACKAGING FOR TRIMM. THE ABOVE BIDS WERE REFERRED TO GOVERNMENT ENGINEERS FOR EVALUATION AND IT IS REPORTED THAT THE BIDS OF ALMO INDUSTRIAL ELECTRONICS. OF YOUR FIRM WERE REJECTED AS BEING NONRESPONSIVE TO THE INVITATION. AWARD WAS MADE TO TRIMM. IT IS REPORTED THAT TECHNICAL EVALUATION OF YOUR BID INCLUDED A PHYSICAL EXAMINATION OF A SAMPLE OF MURDOCK MODEL 122 HEADSET AS MODIFIED BY YOUR BID AND THAT YOUR BID WAS REJECTED BECAUSE OF THE FOLLOWING DEFICIENCIES: "A.

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B-153169, MAR. 20, 1964

TO THE MURDOCK CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 20, 1963, PROTESTING THE ACTION OF THE UNITED STATES ARMY ELECTRONICS MATERIEL AGENCY, PHILADELPHIA, PENNSYLVANIA, IN REJECTING YOUR BID SUBMITTED IN RESPONSE TO INVITATION NO. AMC-/E/-36-039-64-236-A5.

THE INVITATION REQUESTED BIDS FOR FURNISHING 3,020 ELECTRICAL HEADSETS, TRIMM, INC., PART NO. 156, EXCEPT AS MODIFIED IN THE PURCHASE DESCRIPTION, OR EQUAL. THE LOWEST BID WAS SUBMITTED BY ALMO INDUSTRIAL ELECTRONICS, INC., WHICH QUOTED AN OVER-ALL PRICE OF $6,674.20, INCLUDING ITEM 2, PACKAGING. THE NEXT LOWEST BID WAS SUBMITTED BY YOUR FIRM AND YOU QUOTED AN OVER-ALL PRICE OF $14,979.20, INCLUDING ITEM 2. TRIMM, INC., WAS THIRD LOW BIDDER WITH A PRICE OF $15.251 FOR ITEM 1 ONLY. IT IS REPORTED THAT NECESSARY MILITARY PACKAGING FOR TRIMM, INC., WOULD BE ACCOMPLISHED THROUGH UTILIZATION OF A GOVERNMENT PACKAGING CONTRACT AT A TOTAL COST OF $380. THE ABOVE BIDS WERE REFERRED TO GOVERNMENT ENGINEERS FOR EVALUATION AND IT IS REPORTED THAT THE BIDS OF ALMO INDUSTRIAL ELECTRONICS, INC., AND OF YOUR FIRM WERE REJECTED AS BEING NONRESPONSIVE TO THE INVITATION. DECEMBER 4, 1963, AWARD WAS MADE TO TRIMM, INC., AS THE LOW RESPONSIVE BIDDER.

IT IS REPORTED THAT TECHNICAL EVALUATION OF YOUR BID INCLUDED A PHYSICAL EXAMINATION OF A SAMPLE OF MURDOCK MODEL 122 HEADSET AS MODIFIED BY YOUR BID AND THAT YOUR BID WAS REJECTED BECAUSE OF THE FOLLOWING DEFICIENCIES:

"A. THE CAP OF RECEIVER R-14 OFFERED BY MURDOCK IS FLAT AND IS NOT EQUIVALENT TO THE CONCAVE CAP REQUIRED BY THE BRAND NAME PRODUCT, TRIMM PART NO. 156.

"B. IN THE MURDOCK HEADSET, THE RECEIVER HOUSING HAS HOLES IN THE PLASTIC FOR THE HOLDING BRACKET PINS. THIS IS NOT EQUIVALENT TO THE BRAND NAME PRODUCT CONSTRUCTION, WHERE THE BRACKET PINS FIT INTO METAL INSERTS OR SOCKETS INBEDDED IN THE PLASTIC HOUSING.

"C. RECEIVER BRACKET IS ADJUSTED BY SLIDING INTO DESIRED POSITION, BUT HAS NO POSITIVE LOCKING FEATURE, AS REQUIRED BY THE BRAND NAME PRODUCT.

"D. HEADBAND IS VINYL COVERED, RATHER THAN RUBBER COVERED AS REQUIRED BY THE BRAND NAME PRODUCT.

"6. THE ABOVE DIFFERENCES ARE CONSIDERED SIGNIFICANT IN EVALUATION EQUIVALENCY OF THE MURDOCK ITEM WITH THE BRAND NAME PRODUCT REFERENCED IN THE INVITATION. THE REQUIREMENT FOR A CONCAVE RECEIVER CAP IS CITED IN PARAGRAPH 4 OF THE ITEM DESCRIPTION THROUGH REFERENCE THEREIN TO TRIMM PART NO. 160-4. THE DIFFERENCE BETWEEN A FLAT AND A CONCAVE RECEIVER CAP IS BASICALLY ONE OF HUMAN ENGINEERING AND CANNOT BE DISCOUNTED IN THE EVALUATION OF A GENERAL PURPOSE HEADSET WHICH MAY REQUIRE THE OPERATOR TO WEAR IT FOR UNINTERRUPTED PERIODS OF FOUR HOURS. CREATURE COMFORT AND FATIGUE FACTORS ARE SIGNIFICANT DESIGN FEATURES IN THIS TYPE OF PRODUCT. THE CONCAVE RECEIVER CAP IS THEREFORE CONSIDERED AN ESSENTIAL REQUIREMENT AND, OF ITSELF, IS CONSIDERED SUFFICIENT CAUSE FOR REJECTION OF THE MURDOCK CORPORATION BID. THE DIFFERENCES CITED IN PARAGRAPHS 5.B AND 5.C ARE BASED UPON DISTINCT FEATURES OF THE BRAND NAME WHICH ARE NOT FOUND IN THE PROPOSED EQUIVALENT SUBMITTED BY MURDOCK CORPORATION. THE DIFFERENCE CITED IN PARAGRAPH 5.D IS NOT CONSIDERED ESSENTIAL FROM AN OPERATIONAL STANDPOINT; HOWEVER, DEVIATION FROM THE HEADBAND COVERING REQUIRED BY THE BRAND NAME PRODUCT HAS A DEFINITE EFFECT UPON THE BID PRICE.'

IN REGARD TO YOUR STATEMENT THAT YOU PREVIOUSLY FURNISHED AN ELECTRICAL HEADSET EQUAL TO TRIMM NO. 156 THE PURCHASING ACTIVITY STATES AS FOLLOWS:

"7. THE FOLLOWING FACTS ARE SUBMITTED AS PERTINENT TO THE ASSERTION BY MURDOCK CORPORATION IN ITS PROTEST LETTER OF 20 DECEMBER 1963 THAT THERE HAVE BEEN MANY CONTRACTS WHERE THE MURDOCK CORPORATION HEADSET HAS BEEN CONSIDERED EQUIVALENT TO THE TRIMM NO. 156:

"A. MURDOCK CORPORATION HAS NEVER SUPPLIED THE U.S. ARMY ELECTRONICS COMMAND OR ITS PREDECESSOR, THE U.S. ARMY SIGNAL CORPS, WITH "MURDOCK NO. 122 MODIFIED" AS AN EQUIVALENT TO TRIMM NO. 156.

"B. MURDOCK HAS ON TWO OCCASIONS SUPPLIED ITS MODEL NO. 131-L AS AN EQUIVALENT TO THE TRIMM NO. 156. THE FIRST OCCASION WAS UNDER ORDER NO. 33972-PP-56-58 (FISCAL YEAR 1956) FOR 5975 EACH AMOUNTING TO A TOTAL OF $32,026.00. THE SECOND OCCASION WAS UNDER ORDER NO. 43722 PP-60-A4-A4 (FISCAL YEAR 1960) FOR 330 EACH AMOUNTING TO A TOTAL OF $1,848.00.

"C. MURDOCK NO. 131-L SUPPLIED UNDER 33972-PP-56-58 DIFFERS FROM THE MURDOCK NO. 122 MODIFIED IN THAT THE 131-L HAS CONCAVE RECEIVER CAPS AND A LEATHER COVERED HEADBAND (BASED UPON PHYSICAL EXAMINATION OF UNUSED DEPOT STOCK OBTAINED FROM ORDER NO. 33972-PP-56-58).

"D. TRIMM NO. 156 MANUFACTURED DURING THE APPROXIMATE TIME FRAME AS THE MURDOCK ORDERS (FISCAL YEARS 1956 THRU 1960) DIFFERS FROM THE PRESENT MODEL IN THAT IT ALSO HAD A LEATHER COVERED HEADBAND (BASED UPON PHYSICAL EXAMINATION OF UNUSED DEPOT STOCK OBTAINED FROM ORDER NO. 23581-PC-61-A4- 51, FISCAL YEAR 1961).

"E. THE MURDOCK NO. 131-L WAS DETERMINED TO BE EQUIVALENT TO THE TRIMM NO. 156 AT THE TIME OF BID EVALUATION. THERE WERE NO DIFFERENCES BETWEEN THE TWO ITEMS INSOFAR AS THE RECEIVER CAPS OR THE HEADBANDS. THE FILE IS SILENT WITH RESPECT TO THE DIFFERENCES CITED IN PARAGRAPHS 5.B AND C ABOVE WHICH ALSO EXISTED AT THE TIME.'

IN YOUR LETTER OF DECEMBER 30, 1963, YOU STATE THAT ON THE LETTER ATTACHED TO YOUR BID YOU MADE THE FOLLOWING REMARK:

"NOTE: MURDOCK HEADSET ACCEPTED AS EQUAL TO TRIMM NO. 156 (WHICH

WAS REFERENCED IN THE SPECIFICATIONS) ON ORDER NUMBER

33972-PHILA.-56-58 OPENED 17 JANUARY 1956.'

YOU CONTEND THAT THERE HAVE BEEN MANY PREVIOUS AND SUBSEQUENT CONTRACTS WHERE THE MURDOCK CORPORATION HEADSET HAS BEEN CONSIDERED AS MEETING ALL THE SPECIFICATIONS AND EQUAL TO THE TRIMM NO. 156 ELECTRICAL HEADSET.

WHILE THE RECORD DOES INDICATE THAT THE PURCHASING ACTIVITY HAS ACCEPTED YOUR MODEL NO. 131-L AS AN EQUIVALENT TO TRIMM NO. 156 ELECTRICAL HEADSET, THE FACT REMAINS THAT IN YOUR BID YOU OFFERED TO FURNISH YOUR MODIFIED NO. 122 ELECTRICAL HEADSET WHICH THE CONTRACTING OFFICER DETERMINED DOES NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS. THE RESPONSIVENESS OF A BID MUST BE DETERMINED SOLELY ON THE BASIS OF THE BID AND ANY EXPLANATORY INFORMATION SUBMITTED THEREWITH PRIOR TO BID OPENING. IF A BID IS SO PREPARED AS TO CREATE A REASONABLE DOUBT CONCERNING THE BIDDER'S INTENTION TO COMPLY WITH THE INVITATION REQUIREMENTS, ANY NEGOTIATIONS WITH THE BIDDER TO CLARIFY SUCH INTENTION WOULD BE OBJECTIONABLE ON THE GROUNDS THAT NO BIDDER SHOULD BE AFFORDED A SECOND CHANCE TO BID AFTER BIDS ARE OPENED. SEE 36 COMP. GEN. 705.

THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT AND TO DETERMINE FACTUALLY WHETHER EQUIPMENT OFFERED BY BIDDERS MEETS THOSE SPECIFICATIONS IS PRIMARILY THE RESPONSIBILITY OF THE PROCUREMENT ACTIVITY. SEE 17 COMP. GEN. 554, 19 ID. 587 AND 40 ID. 35. THERE IS NO REQUIREMENT THAT THE GOVERNMENT PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE PROCUREMENT ACTIVITY, REASONABLY MEET THE ACTIVITY'S NEED.

ACCORDINGLY, AND IN VIEW OF THE MANDATORY REQUIREMENTS OF 10 U.S.C. 2305 (C) THAT AWARDS UNDER FORMAL ADVERTISED PROCEDURES SHALL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID "CONFORMS TO THE INVITATION" AND WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED, WE MUST CONCLUDE THAT NO LEGAL BASES EXIST FOR QUESTIONING THE REJECTION OF YOUR BID.

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