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B-159259, NOV. 3, 1966

B-159259 Nov 03, 1966
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INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF MAY 16. IT IS ALLEGED THAT THE GPS INSTRUMENT COMPANY BID MUST BE CONSIDERED NONRESPONSIVE SINCE THE BIDDER CHOSE TO RESTRICT FROM PUBLIC DISCLOSURE AN ESSENTIAL. BIDS WERE OPENED ON MAY 5. WAS FOUND UNACCEPTABLE AFTER TECHNICAL EVALUATION. " PROVIDES IN PERTINENT PART AS FOLLOWS: "WHEN A BID IS ACCOMPANIED BY DESCRIPTIVE LITERATURE (AS DEFINED IN 2.202 -5 (A) (. "DESCRIPTIVE LITERATURE" IS DEFINED IN NASA PR 2.202-5 (A) AS FOLLOWS: "* * * AS USED IN THIS PARAGRAPH 2.202-5. THE ABOVE-QUOTED PROVISIONS OF NASA PROCUREMENT REGULATIONS ARE IDENTICAL WITH CORRESPONDING PROVISIONS OF THE FEDERAL PROCUREMENT REGULATIONS. PRICE AND DELIVERY TERMS OR WHICH PROHIBIT THE DISCLOSURE OF SUFFICIENT INFORMATION TO PERMIT COMPETING BIDDERS TO KNOW THE ESSENTIAL NATURE AND TYPE OF THE PRODUCTS OFFERED WILL HAVE THAT EFFECT.'.

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B-159259, NOV. 3, 1966

TO COMPUTER PRODUCTS, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF MAY 16, 1966, PROTESTING THE CONSIDERATION OR ACCEPTANCE BY THE NASA ELECTRONICS RESEARCH CENTER, CAMBRIDGE, MASSACHUSETTS, OF THE BID SUBMITTED BY GPS INSTRUMENT COMPANY UNDER IFB ER-164. IT IS ALLEGED THAT THE GPS INSTRUMENT COMPANY BID MUST BE CONSIDERED NONRESPONSIVE SINCE THE BIDDER CHOSE TO RESTRICT FROM PUBLIC DISCLOSURE AN ESSENTIAL, MATERIAL, REQUIRED PORTION OF ITS BID IN RESPONSE TO IFB NO. ER-164.

IFB NO. ER-164 SOLICITED SEALED BIDS ON AN ANALOG COMPUTING SYSTEM, INCLUDING OPERATORS AND MAINTENANCE HANDBOOKS, IN ACCORDANCE WITH THE SPECIFICATIONS ATTACHED THERETO. IN ACCORDANCE WITH NASA PR 2.202-5 (D) (2), THE IFB CONTAINED A CLAUSE REQUIRING THE SUBMISSION OF DESCRIPTIVE LITERATURE AS PART OF THE BID. BIDS WERE OPENED ON MAY 5, 1966, WITH THE FOLLOWING RESULTS:

BIDDER AMOUNT

APPLIED DYNAMICS, INC. $265,000

GPS INSTRUMENT CO., INC. 324,964

ELECTRONIC ASSOCIATES, INC. 366,720

COMCOR, INC. 395,663

COMPUTER PRODUCTS, INC. 410,910

THE BID OF APPLIED DYNAMICS, INC., WAS FOUND UNACCEPTABLE AFTER TECHNICAL EVALUATION. THE GPS INSTRUMENT CO., HAD PLACED A NOTATION ON ITS DESCRIPTIVE LITERATURE PROHIBITING PUBLIC DISCLOSURE WITHOUT THE SPECIFIC PERMISSION OF THE BIDDER. NASA PR 2.404-4 (A),"RESTRICTIONS ON DISCLOSURE OF DESCRIPTIVE LITERATURE," PROVIDES IN PERTINENT PART AS FOLLOWS:

"WHEN A BID IS ACCOMPANIED BY DESCRIPTIVE LITERATURE (AS DEFINED IN 2.202 -5 (A) (, AND THE BIDDER IMPOSES A RESTRICTION THAT SUCH LITERATURE MAY NOT BE PUBLICLY DISCLOSED, SUCH RESTRICTION RENDERS THE BID NONRESPONSIVE IF IT PROHIBITS THE DISCLOSURE OF SUFFICIENT INFORMATION TO PERMIT COMPETING BIDDERS TO KNOW THE ESSENTIAL NATURE AND TYPE OF THE PRODUCTS OFFERED OR THOSE ELEMENTS OF THE BID WHICH RELATE TO QUANTITY, PRICE AND DELIVERY TERMS.'

"DESCRIPTIVE LITERATURE" IS DEFINED IN NASA PR 2.202-5 (A) AS FOLLOWS:

"* * * AS USED IN THIS PARAGRAPH 2.202-5, THE TERM "DESCRIPTIVE LITERATURE" MEANS INFORMATION, SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS, AND BROCHURES, WHICH SHOW THE CHARACTERISTICS OR CONSTRUCTION OF A PRODUCT OR EXPLAIN ITS OPERATION, FURNISHED BY A BIDDER AS A PART OF HIS BID TO DESCRIBE THE PRODUCTS OFFERED IN HIS BID. THE TERM INCLUDES ONLY INFORMATION REQUIRED TO DETERMINE ACCEPTABILITY OF THE PRODUCT, AND EXCLUDES OTHER INFORMATION SUCH AS THAT FURNISHED IN CONNECTION WITH THE QUALIFICATIONS OF A BIDDER OR FOR USE IN OPERATING OR MAINTAINING EQUIPMENT.'

THE ABOVE-QUOTED PROVISIONS OF NASA PROCUREMENT REGULATIONS ARE IDENTICAL WITH CORRESPONDING PROVISIONS OF THE FEDERAL PROCUREMENT REGULATIONS.

IN OUR DECISION OF FEBRUARY 2, 1962, 41 COMP. GEN. 510, WITH REGARD TO THE PROVISIONS IN THE FEDERAL PROCUREMENT REGULATIONS, WE STATED:

"BY THE TERMS OF SECTION 1-2.404-4 OF THE FEDERAL PROCUREMENT REGULATIONS NOT ALL RESTRICTIONS IMPOSED BY A BIDDER ON THE PUBLIC DISCLOSURE OF DESCRIPTIVE DATA SUBMITTED WITH A BID RENDER SUCH BID NONRESPONSIVE. ONLY THOSE RESTRICTIONS WHICH RELATE TO QUANTITY, PRICE AND DELIVERY TERMS OR WHICH PROHIBIT THE DISCLOSURE OF SUFFICIENT INFORMATION TO PERMIT COMPETING BIDDERS TO KNOW THE ESSENTIAL NATURE AND TYPE OF THE PRODUCTS OFFERED WILL HAVE THAT EFFECT.'

IT IS FURTHER STATED IN THE CITED DECISION THAT:

"WHILE THE FEDERAL PROCUREMENT REGULATIONS DO NOT CONTAIN A DEFINITION OF WHAT IS MEANT BY ,ESSENTIAL NATURE" AND "TYPE" OF PRODUCT OFFERED, IT IS NOT UNREASONABLE TO ASSUME THAT THE REQUIREMENTS STATED IN PARAGRAPH 2 OF THE PURCHASE DESCRIPTION ADEQUATELY DEFINE THE ESSENTIAL NATURE AND TYPE OF EQUIPMENT CALLED FOR SINCE BY THE TERMS OF THE INVITATION ANY EXCEPTIONS TAKEN TO THESE REQUIREMENTS RENDERED THE BID NONRESPONSIVE. THE REQUIREMENTS OF THE PURCHASE DESCRIPTION WERE COMMON TO ALL BIDDERS AND OBVIOUSLY WERE CONSIDERED ESSENTIAL TO THE COAST GUARD IN OBTAINING ITS NEEDS.'

THE GPS BID CLEARLY STATES THE QUANTITY, PRICE AND DELIVERY TERMS WHICH WERE IN ACCORD WITH THE INVITATION AND A MATTER OF PUBLIC RECORD AVAILABLE FOR PUBLIC INSPECTION. ITS COVER LETTER TOOK NO EXCEPTION TO ANY PART OF THE INVITATION, AND STATED THAT IT WAS PROPOSING ITS "GPS MODEL 390T GENERAL PURPOSE ANALOG-HYBRID COMPUTING SYSTEM--- A STATE-OF-THE-ART SOLID STATE SCIENTIFIC COMPUTER WHICH MEETS OR EXCEEDS ALL REQUIREMENTS OF (THE) RFQ.' THE COVER LETTER DESCRIBED THE GPS 390T SYSTEM AS "THE LATEST IN OUR 200T-300T COMPUTER SERIES WHICH HAVE BEEN IN OPERATION IN THE FIELD FOR OVER A YEAR.' THIS LEAVES ONLY THE QUESTION WHETHER THE RESTRICTION ON THE DESCRIPTIVE LITERATURE PROHIBITED THE DISCLOSURE OF SUFFICIENT INFORMATION TO PERMIT THE COMPETING BIDDERS TO KNOW THE "ESSENTIAL NATURE" AND "TYPE" OF PRODUCT OFFERED BY GPS.

THE INVITATION FOR BIDS CALLED FOR A "SYSTEM, COMPUTING ANALOG INCLUDING OPERATOR AND MAINTENANCE TECHNICIAN TRAINING IN ACCORDANCE WITH ATTACHED SPECIFICATIONS FOR AN ANALOG COMPUTER SYSTEM.' THE SPECIFICATION ACCOMPANYING THE BID FORM STATED THAT ITS SCOPE:

"* * * COVERS THE EQUIPMENT NECESSARY TO FORM A VERSATILE ANALOG COMPUTING SYSTEM OF ALL SOLID-STATE DESIGN. THIS SYSTEM SHALL BE AN ORGANIZED COLLECTION OF ELECTRONIC OPERATIONAL MODULES OF THE FOLLOWING TYPES: INTEGRATORS, SUMMERS, POTENTIOMETERS, MULTIPLIERS, FUNCTION GENERATORS, RESOLVERS, LIMITERS, CROSSING DETECTORS, ELECTRONIC SWITCHES, DISPLAYS AND CONTROL, ALL OF WHICH ARE ACCESSIBLE ON ONE OR MORE PATCH PANELS. INCLUDED ARE ALL OF THE NECESSARY POWER SUPPLIES, CABLING, ENCLOSED CABINETS, PATCH PANEL HOLDERS, INTERNAL AND EXTERNAL GROUNDING, BUS BARS, PATCH BOARDS, PATCH CORDS, CONTROL CONSOLE, NECESSARY EXHAUST FANS, AND POWER INPUT CABLING, ALL OF WHICH MAKE UP A COMPLETE SINGLE PACKAGE OF ATTRACTIVE DESIGN AND COLOR REQUIRING ONLY EXTERNAL AC POWER AND ROOM TEMPERATURE CONTROL TO BECOME FULLY OPERATIONAL.

"IT IS ANTICIPATED THAT THIS ANALOG SYSTEM MAY BE EXPANDED INTO AN EFFICIENT HYBRID COMPUTATIONAL SYSTEM. THEREFORE, IT IS A REQUIREMENT OF THIS SPECIFICATION THAT THE ANALOG SYSTEM DELINEATED HEREIN BE READILY AMENABLE TO THE FORMATION OF A HYBRID SYSTEM.'

FOLLOWING THE ABOVE STATEMENT OF SCOPE, THE SPECIFICATIONS STATE A GENERAL DESCRIPTION OF THE SYSTEM WITH AN ANALYSIS OF THE REQUIRED CHARACTERISTICS OF THE SEVERAL ELEMENTS.

SECTION 4.0, SYSTEM COMPLEMENT, OF THE SPECIFICATIONS STATES AS FOLLOWS:

"THE ANALOG SYSTEM TO BE SUPPLIED BY THE CONTRACTOR TO THE ELECTRONICS RESEARCH CENTER OF THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION OF CAMBRIDGE, MASSACHUSETTS IS DELINEATED IN TABLE I. THE SPECIFICATIONS FOR THE COMPONENTS OF THE ANALOG COMPUTER SYSTEM ARE LISTED IN SECTION 5, DETAILED SPECIFICATIONS FOR INDIVIDUAL COMPONENTS.'

TABLE I IS A LIST OF COMPONENTS TO BE INCLUDED IN OR ASSOCIATED WITH BOTH OF THE TWO CENTRAL CONTROL CONSOLES CALLED FOR IN THE SPECIFICATIONS. LIST OF SPARES TO BE PROVIDED IS ALSO SHOWN. THE LIST OF COMPUTING ELEMENTS IS FOLLOWED BY DETAILED SPECIFICATIONS FOR THE INDIVIDUAL COMPONENTS.

IN ITS REPORT TO US CONCERNING THIS MATTER, THE ADMINISTRATIVE OFFICE OBSERVES THAT:

"THE EARLIER 200-300T SERIES, TO THE EXTENT POSSIBLE IN THE COMPUTER INDUSTRY, COULD BE CONSIDERED TO BE OFF THE SHELF ITEMS. THIS INDUSTRY IS SUCH THAT EVEN STANDARD MODELS REQUIRE SOME MODIFICATION TO SUIT THE NEEDS OF THE CUSTOMER. WE WOULD AGREE WITH THE HEADQUARTERS TECHNICAL EVALUATION THAT THE GPS 390T IS NOT SPECIFICALLY MENTIONED IN THE LITERATURE FURNISHED TO COMPETITORS CONCERNING THE 200-300T SERIES. IT IS ALSO OBVIOUS THAT THERE ARE DIFFERENCES BETWEEN THE 390T AND THE EARLIER MODELS OF THIS SERIES. HOWEVER, THESE DIFFERENCES WOULD NOT SEEM TO GO TO THE ESSENTIAL NATURE OF THE COMPUTER BUT WOULD INVOLVE MODIFICATIONS OF THESE STANDARD MODELS 200-300T IN AN EFFORT TO COMPLY WITH THE SPECIFICATIONS OF THE IFB. SINCE THESE SPECIFICATIONS AS WELL AS THE COMPLETE INFORMATION REGARDING EARLIER COMPUTERS IN THE GPS SERIES WERE KNOWN TO ALL COMPETITORS, WE WOULD CONCLUDE THAT THE ESSENTIAL NATURE AND TYPE OF PRODUCT OFFERED WERE KNOWN TO THE GPS COMPETITORS NOTWITHSTANDING THE FACT THAT THE GPS 390T AS SUCH IS NOT KNOWN IN DETAIL BY THE COMPETITORS.'

WE ARE IN AGREEMENT WITH THE ADMINISTRATIVE OFFICE'S CONCLUSION THAT THE GPS RESTRICTION ON PUBLIC DISCLOSURE OF ITS DESCRIPTIVE DATA DID NOT PREVENT COMPETING BIDDERS FROM KNOWING THE ESSENTIAL NATURE AND TYPE OF COMPUTER OFFERED. ALL BIDDERS HAD COPIES OF THE SPECIFICATIONS AND KNEW OF THE REQUIREMENTS SPECIFIED THEREIN. IN ADDITION, THE COMPETING BIDDERS KNEW THAT GPS OFFERED THE LATEST MODEL IN ITS 200 300T SERIES, MATERIAL ON WHICH WAS READILY AVAILABLE, AND THUS WERE AWARE OF THE ESSENTIAL NATURE AND TYPE OF PRODUCT OFFERED.

ACCORDINGLY, IT MUST BE CONCLUDED THAT GPS'S BID WAS RESPONSIVE AND THE AWARD TO THAT FIRM PROPER.

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