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B-164384, JAN. 31, 1969

B-164384 Jan 31, 1969
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TO DUKANE CORPORATION: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 22. THE CITED SOLICITATION WAS ISSUED ON APRIL 16. BIDS WERE OPENED AS SCHEDULED ON MAY 10. THE LOWEST BID ON ITEMS 136-34 THROUGH 136-69 WAS SUBMITTED BY YOUR FIRM. WAS REJECTED AS NONRESPONSIVE BECAUSE IN YOUR LETTER OF MAY 8. SELECTION TO MASTER-RECORD MODE IS ONLY AT STUDENT POSITION. "THE DUKANE/MONITOR III CONSOLE RECORDER AND REPRODUCERS EMPLOY ONE HALF TRACK AND ARE DESIGNED TO RECORD AND PLAY BACK ONLY MASTER-TRACK INFORMATION OR ANY MATERIAL THAT HAS BEEN RECORDED ON MASTER-TRACK. "WE PROPOSE TO FURNISH A STANDARD VI METER FOR THE VU METER SPECIFIED AND OUR ANNUNCIATORS ARE OF THE TYPE CANCELLING WHEN STUDENT RELEASES THE MOMENTARY PUSHBUTTON.'.

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B-164384, JAN. 31, 1969

TO DUKANE CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 22, AND SUPPLEMENTAL LETTERS OF AUGUST 2 AND DECEMBER 20, 1968, PROTESTING THE AWARD OF A CONTRACT BY THE GENERAL SERVICES ADMINISTRATION (GSA) TO ANY BIDDER OTHER THAN YOUR CORPORATION UNDER SOLICITATION NO. FPNHO-K 27628-A-5-10-68, ISSUED BY THE FEDERAL SUPPLY SERVICE, WASHINGTON, D.C.

THE CITED SOLICITATION WAS ISSUED ON APRIL 16, 1968, AND COVERED A REQUIREMENTS CONTRACT FOR 36 ITEMS OF FS CLASS 5830, INTERCOMMUNICATION SETS (LANGUAGE LABORATORY TYPE) FOR THE PERIOD JULY 1, 1968, OR DATE OF AWARD, THROUGH JUNE 30, 1969. BIDS WERE OPENED AS SCHEDULED ON MAY 10, 1968. THE LOWEST BID ON ITEMS 136-34 THROUGH 136-69 WAS SUBMITTED BY YOUR FIRM. YOUR BID, HOWEVER, WAS REJECTED AS NONRESPONSIVE BECAUSE IN YOUR LETTER OF MAY 8, 1968, WHICH ACCOMPANIED AND BECAME PART OF YOUR BID, YOUR FIRM TOOK CERTAIN EXCEPTIONS TO THE REQUIREMENTS OF THE SPECIFICATIONS. THAT LETTER READS IN PERTINENT PART AS FOLLOWS:

"IN ACCORDANCE WITH OUR INTERPRETATION OF YOUR IFB, CONSOLE HAS FULL CONTROL OF MASTER-RECORD OF STUDENT UNITS THROUGH A SINGLE SWITCH WHICH PREVENTS UNAUTHORIZED USE OF MASTER TRACK AND, SELECTION TO MASTER-RECORD MODE IS ONLY AT STUDENT POSITION.

"THE DUKANE/MONITOR III CONSOLE RECORDER AND REPRODUCERS EMPLOY ONE HALF TRACK AND ARE DESIGNED TO RECORD AND PLAY BACK ONLY MASTER-TRACK INFORMATION OR ANY MATERIAL THAT HAS BEEN RECORDED ON MASTER-TRACK. CONSOLE RECORDERS PROVIDE AN ILLUMINATED RED LIGHT WHEN IN -RECORD- POSITION SERVING AS LOCKOUT.

"WE PROPOSE TO FURNISH A STANDARD VI METER FOR THE VU METER SPECIFIED AND OUR ANNUNCIATORS ARE OF THE TYPE CANCELLING WHEN STUDENT RELEASES THE MOMENTARY PUSHBUTTON.'

THE CONTRACTING OFFICER IS CONTEMPLATING AWARD OF A CONTRACT FOR ITEMS 136-34 THROUGH 136-69 TO INSTRUCTOMATIC, INC., AS THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER. IT IS REPORTED THAT AN AWARD ON THE ITEMS IN QUESTION WILL BE HELD IN ABEYANCE PENDING A DECISION BY OUR OFFICE ON YOUR PROTEST.

IN YOUR LETTER OF AUGUST 2, 1968, YOU STATE THAT THE BID SUBMITTED BY YOUR FIRM WAS BASED UPON THE TYPE OF STANDARD EQUIPMENT YOU HAVE SUPPLIED TO HUNDREDS OF INSTALLATIONS WHICH WERE FINANCED BY GOVERNMENT FUNDS; THAT SUCH EQUIPMENT IS PERFORMING SATISFACTORILY; AND THAT SINCE THE OTHER BIDDERS DID NOT TAKE ANY EXCEPTION TO THE SPECIFICATIONS, THE APPROVING AND EVALUATING AGENCY CAN ARRIVE AT ONLY ONE OF TWO CONCLUSIONS: (A) OTHER BIDDERS WERE NEITHER HONEST NOR RESPONSIVE TO THE INVITATION, OR (B) THE SPECIFICATIONS ARE UNDULY RESTRICTIVE IN THAT THEY CAN ONLY BE MET BY EITHER OF TWO UNMODIFIED MODELS OF EQUIPMENT MANUFACTURED BY GENERAL ELECTRONIC LABORATORIES. YOU ALSO ALLEGE THAT THREE OF THE FOUR OTHER BIDDERS HAVE NOT OBTAINED "UL LISTING" IN ACCORDANCE WITH THE REQUIREMENT OF PARAGRAPH 3.1.1 OF THE SPECIFICATIONS THAT THE EQUIPMENT OFFERED MUST CONFORM TO THE REQUIREMENTS OF UNDERWRITERS' LABORATORIES, INC., STANDARD UL813, COVERING SOUND RECORDING AND REPRODUCING EQUIPMENT. YOU STATE THAT THE REQUIREMENTS RESPECTING CONFORMANCE OF THE EQUIPMENT WITH THE STANDARD OF QUALITY SET FORTH IN STANDARD UL813 ARE BOTH COMMERCIALLY AND TECHNICALLY UNNECESSARY.

IN ITS REPORT OF DECEMBER 12, 1968, A COPY OF WHICH WAS FURNISHED TO A REPRESENTATIVE OF YOUR COMPANY AND UPON WHICH YOU COMMENTED BY LETTER OF DECEMBER 20, GSA STATES THAT THE BID OF YOUR FIRM WAS REJECTED AS BEING NONRESPONSIVE FOR THE FOLLOWING REASONS:

"PARAGRAPH 3.6.2.3 OF THE APPLICABLE SPECIFICATION, INTERIM FEDERAL SPECIFICATION W-I-00520 (GSA-FSS) DATED MAY 9, 1966 REQUIRES THAT IT SHALL NOT BE POSSIBLE TO EFFECT ERASURE OR RECORDING OF THE LESSON (MASTER TRACK) BY ANY MANIPULATION OF BOOTH CONTROLS NORMALLY ACCESSIBLE TO THE STUDENT, AND THAT ERASE AND RECORD FUNCTION OF THE MASTER TRACK SHALL BE EFFECTED ONLY BY OPERATION OF A CONSOLE SWITCH DEVISED FOR THIS PURPOSE. THE PURPOSE OF THE RECORD LOCKOUT SWITCH IS TO PREVENT ACCIDENTAL RECORDING OVER PREVIOUSLY RECORDED MATERIAL WHICH WOULD, OF COURSE, BE DESTROYED IN THE PROCESS.

"HOWEVER, DUKANE TOOK EXCEPTION TO THIS REQUIREMENT, STATING IN ITS LETTER (THIRD AND FOURTH PARAGRAPHS) THAT ITS CONSOLE -HAS FULL CONTROL OF MASTER-RECORD OF STUDENT UNITS THROUGH A SINGLE SWITCH WHICH PREVENTS UNAUTHORIZED USE OF MASTER TRACK AND, SELECTION TO MASTER MODE IS ONLY AT STUDENT POSITION.- IN ADDITION, IT IS STATED THAT -CONSOLE RECORDERS PROVIDE AN ILLUMINATED RED LIGHT WHEN IN "RECORD" POSITION SERVING AS A LOCKOUT.-

"THE FACT THAT THE SWITCH IS NOT ONLY ACCESSIBLE TO THE STUDENT BUT IS ONLY AT THE STUDENT POSITION IS A MATERIAL DEVIATION FROM THE REQUIREMENTS OF THE SPECIFICATION AND WILL NOT SERVE TO PREVENT ACCIDENTAL RECORDING. THE RED LIGHT PROVIDED ON THE DUKANE RECORDER IS NOT CONSIDERED SUFFICIENT TO PREVENT THE ACCIDENT WHICH THE SPECIFICATION REQUIREMENT IS DESIGNED TO PREVENT. * * *

"PARAGRAPH 3.7.5. REQUIRES THAT THE STUDENT RECORDER-REPRODUCER SHALL BE A DUAL CHANNEL HALF-TRACK TYPE AND SHALL BE CAPABLE OF RECORDING AND REPRODUCING ON BOTH CHANNELS.

"DUKANE STATED IN ITS LETTER OF MAY 8TH (FOURTH PARAGRAPH) THAT ITS CONSOLE EMPLOYS ONE-HALF TRACK AND IS DESIGNED TO RECORD AND PLAYBACK ONLY MASTER TRACK INFORMATION OR ANY MATERIAL THAT HAS BEEN RECORDED ON MASTER TRACK. THE CONSOLE OFFERED IS A SINGLE CHANNEL MACHINE, RATHER THAN DUAL CHANNEL AS REQUIRED BY THE SPECIFICATION. THIS, OF COURSE, ALSO IS A SUBSTANTIAL DEVIATION FROM SPECIFICATION REQUIREMENTS.

"THE PROTESTING BIDDER ALSO TOOK EXCEPTION TO THE PROVISIONS (PARAGRAPH 3.7.9) OF THE SPECIFICATION REGARDING THE VOLUME UNIT (V.U.) METER BY STATING THAT -WE PROPOSE TO FURNISH A STANDARD VI METER FOR THE VU METER SPECIFIED * * *.- WHILE THE METER WHICH DUKANE PROPOSED TO SUBSTITUTE MAY INDEED BE THE EQUAL OF THE METER SPECIFIED, WE CANNOT MAKE A DEFINITE DETERMINATION IN THIS REGARD WITHOUT FURTHER INFORMATION AND TESTS.

"THE EXCEPTIONS TAKEN BY DUKANE SUBSTANTIALLY MODIFIED THE DESIGN OF THE EQUIPMENT OFFERED BY DUKANE AND RENDERED ITS BID NONRESPONSIVE. 43 COMP. GEN. 209; 40 COMP. GEN. 458; 38 COMP. GEN. 610. THUS DUKANE'S BID WAS PROPERLY REJECTED.'

IN REGARD TO YOUR ALLEGATION THAT THE SPECIFICATIONS ARE RESTRICTIVE AND PROPRIETARY, IT IS REPORTED THAT WHEN THE SPECIFICATIONS WERE BEING DEVELOPED BY GSA A COPY THEREOF WAS FURNISHED TO YOUR FIRMAND OTHER MANUFACTURERS FOR REVIEW AND COMMENT; THAT YOUR FIRM SUBMITTED TO GSA SIX PAGES OF COMMENTS AND SUGGESTIONS, A NUMBER OF WHICH WERE ADOPTED, BUT THAT YOUR FIRM AT THAT TIME MADE NO CLAIM THAT THE PROPOSED SPECIFICATIONS WERE RESTRICTIVE OR PROPRIETARY; AND THAT NONE OF THE OTHER MANUFACTURERS HAS MADE A CLAIM THAT THE SPECIFICATIONS ARE RESTRICTIVE AND PROPRIETARY.

YOUR LETTER OF DECEMBER 20, 1968, IN WHICH YOU QUESTIONED CERTAIN STATEMENTS MADE IN THE ADMINISTRATIVE REPORT DATED DECEMBER 12, 1968, HAS BEEN REVIEWED BY THE PROCUREMENT OFFICE AND THAT OFFICE HAS ADVISED THAT YOUR STATEMENT THAT THE ONLY DIFFERENCE BETWEEN A "VU" AND A "VI" METER IN THE ADVERTISED APPLICATION IS THE BALLISTIC CHARACTERISTICS IS ESSENTIALLY CORRECT. BUT THEY STATED FURTHER THAT:

"* * * AT THE TIME THIS SPECIFICATION WAS WRITTEN AND IMPLEMENTED, TO OUR KNOWLEDGE THE ONLY STANDARD AVAILABLE FOR RECORD LEVEL INDICATORS WAS USASI (UNITED STATES OF AMERICA STANDARDS INSTITUTE) STANDARD C 16.5- 1954. THE REFERENCE TO THIS STANDARD WAS MADE IN AN ATTEMPT TO INSURE AN ACCEPTABLE LEVEL OF QUALITY FOR THIS EXTREMELY IMPORTANT PART OF THE LANGUAGE LABORATORY SYSTEM, ESPECIALLY FOR THE CONSOLE EQUIPMENT. THIS REQUIREMENT WAS INCLUDED IN ALL GSA SPECIFICATIONS FOR SEMI-PROFESSIONAL (OFFICE TYPE) AND PROFESSIONAL (BROADCAST TYPE) RECORDER PRODUCERS UTILIZED UNDER THE FSC GROUP 58 PART III FEDERAL SUPPLY SCHEDULE. MOST RECENTLY, THE STANDARDIZATION DIVISION HAS COMPLETED WORK ON A STANDARD FOR VOLUME INDICATORS NOT MEETING THE REQUIREMENTS OF USASI C 16.5, FOR USE ON INEXPENSIVE, LIMITED-PURPOSE OFFICE TYPE RECORDERS AND CONSIDERATION MAY BE GIVEN TO THE INCORPORATION OF THIS ITEM IN FUTURE REVISIONS OF THE LANGUAGE LABORATORY SPECIFICATIONS FOR THE STUDENT UNITS ONLY. NEVERTHELESS, AT PRESENT, AND AT THE TIME OF THE BID, A -VU- METER MEETING THE REQUIREMENTS OF USASI STANDARD C 16.5 IS REQUIRED BY W-I- 00520.'

WHILE THE DEVIATION LISTED BY YOU IN THE FORTH PARAGRAPH OF YOUR MAY 8 LETTER, QUOTED ABOVE, RELATED TO PARAGRAPH 3.7.1 OF THE SPECIFICATIONS (CONSOLE RECORDER-REPRODUCER) AND NOT TO PARAGRAPH 3.7.5 (STUDENT RECORDER -REPRODUCER), AS STATED IN THE GSA REPORT OF DECEMBER 12, IT STILL CONSTITUTED AN EXCEPTION TO THE SPECIFICATIONS. THAT IS TO SAY, PARAGRAPH 3.7.1 REQUIRES THAT THE CONSOLE RECORDER REPRODUCER BE A DUAL CHANNEL TYPE AND NOT THE SINGLE CHANNEL MACHINE OFFERED BY YOU. WHILE YOU CONTEND THAT DUAL CHANNEL MAY BE PROVIDED BY A "RELATIVELY SIMPLE FACTORY MODIFICATION," AND THAT YOUR DEVIATION THEREFROM IS NOT SUBSTANTIAL, THE FACT REMAINS THAT GSA TECHNICAL PERSONNEL HAVE DETERMINED THAT YOU DI TAKE A MATERIAL EXCEPTION TO THE REQUIREMENTS OF THE SPECIFICATIONS WHICH MAY NOT BE WAIVED.

IT IS NOT, OF COURSE, WITHIN THE PROVINCE OF OUR OFFICE TO DRAFT SPECIFICATIONS FOR THE CONTRACTUAL NEEDS OF ADMINISTRATIVE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT. 38 COMP. GEN. 71, 75. THUS, WHERE IT IS SHOWN THAT AN ARTICLE OFFERED BY A BIDDER FAILS TO MEET THE SPECIFICATIONS IN SOME SPECIFIC RESPECT, A DETERMINATION THAT SUCH BID SHOULD BE REJECTED WILL NOT BE QUESTIONED BY OUR OFFICE UNLESS THE FAILURE TO MEET SPECIFICATIONS RELATES TO A TRIVIAL OR IMMATERIAL REQUIREMENT. HERE, HOWEVER, THE PROCUREMENT AGENCY HAS DETERMINED THAT ONLY A DUAL CHANNEL, AS SPECIFIED, WILL MEET ITS NEEDS. THIS IS A MATTER WHICH IS PARTICULARLY WITHIN THE PROVINCE OF THE TECHNICAL EXPERTS OF THE GOVERNMENT. WE HAVE HELD THAT WHERE IT APPEARS THAT A PROCUREMENT AGENCY HAS MADE A BONA FIDE DETERMINATION OF ITS NEEDS FOR EQUIPMENT CONFORMING TO CERTAIN SPECIFICATIONS, WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF SUCH AGENCY. THE FACT THAT IT MAY DEVELOP IN THESE CIRCUMSTANCES THAT SUCH EQUIPMENT IS MANUFACTURED BY ONLY ONE OR A FEW FIRMS WOULD NOT WARRANT OUR OFFICE IN QUESTIONING THE PROCUREMENT. ALSO, WE DO NOT SEE ANY BASIS UPON WHICH WE COULD OBJECT TO THE AWARD TO A HIGHER BIDDER SINCE THE AGENCIES OF THE GOVERNMENT ARE NOT REQUIRED TO MAKE PURCHASES OF EQUIPMENT SIMPLY BECAUSE A LOWER PRICE CAN BE OBTAINED THROUGH AN UNWARRANTED WAIVER OF A MATERIAL REQUIREMENT. CLEARLY, IN THE ORDERLY CONDUCT OF ITS BUSINESS THE GOVERNMENT MAY NOT BE PLACED IN THE POSITION OF HAVING TO SHARE SUCH DISCRETIONARY AUTHORITY WITH ONE OF ITS POTENTIAL SUPPLIERS. 45 COMP. GEN. 365.

SINCE WE HOLD THAT THE FOURTH PARAGRAPH OF YOUR LETTER OF MAY 8 CONSTITUTED A MATERIAL DEVIATION FROM THE ADVERTISED SPECIFICATIONS, THERE IS NO NEED TO DISCUSS THE OTHER ELEMENTS OF YOUR PROTEST OTHER THAN TO ADVISE THAT WE BELIEVE THAT THE ABOVE-QUOTED GSA REPORT OF DECEMBER 12 SUFFICIENTLY DISPOSES OF THE OTHER FACTORS OF YOUR PROTEST.

FOR THE REASONS STATED, WE FIND NO BASIS FOR OBJECTING TO THE REJECTION OF YOUR BID, AND YOUR PROTEST AGAINST AWARD TO ANY OTHER BIDDER IS THEREFORE DENIED.

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