B-101432, MARCH 7, 1951, 30 COMP. GEN. 368

B-101432, MARCH 7, 1951, 30 COMP. GEN. 368

CONTRACTS - SPECIFICATIONS - RESTRICTIVE THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE TO MEET SPECIFICATIONS DESCRIBING HIGHLY SPECIALIZED SCIENTIFIC EQUIPMENT SIMILAR IN MANY RESPECTS TO THAT OFFERED BY A COMPETITOR, WHICH WERE ADMINISTRATIVELY CONSIDERED NECESSARY TO MEET THE PARTICULAR NEEDS OF THE GOVERNMENT, WILL NOT BE SUFFICIENT TO WARRANT THE CONCLUSION THAT SUCH SPECIFICATIONS ARE RESTRICTIVE TO THE POINT OF PRECLUDING FREE AND OPEN COMPETITION.

ACTING COMPTROLLER GENERAL YATES TO THE CHAIRMAN, ATOMIC ENERGY COMMISSION, MARCH 7, 1951:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 15, 1951, FROM THE CONTROLLER, ATOMIC ENERGY COMMISSION, FORWARDING, AMONG OTHER ENCLOSURES, A LETTER DATED DECEMBER 21, 1950, FROM THE LINK RADIO CORPORATION, WHEREIN PROTEST WAS MADE TO THE ATOMIC ENERGY COMMISSION AGAINST THE USE OF THE SPECIFICATIONS ATTACHED TO INVITATION FOR BIDS NO. 291-51-69. IT IS STATED IN THE LETTER OF FEBRUARY 15, 1951, THAT THE MATTER OF MAKING AWARD IS ONE WHICH REQUIRES ESSENTIALLY THE EXERCISE OF THE JUDGMENT OF THE TECHNICAL AEC FIELD PERSONNEL WHO ARE INTIMATELY ACQUAINTED WITH THE REQUIREMENTS OF THE ATOMIC ENERGY PROGRAM AND THAT IT IS FELT THAT, IN THE ABSENCE OF THE MOST COMPELLING REASONS, NOT PRESENTLY KNOWN, SUCH JUDGMENT SHOULD NOT BE DISTURBED.

THE ATOMIC ENERGY COMMISSION, SANTE FE OPERATIONS OFFICE, BY THE REFERRED -TO INVITATION REQUESTED BIDS--- TO BE OPENED JANUARY 12, 1951- - FOR FURNISHING CERTAIN QUANTITIES OF RADIO RECEIVING AND TRANSMITTING SETS AS DESCRIBED ON STANDARD FORM 36 AND IN THE DETAILED SPECIFICATIONS ATTACHED TO THE INVITATION.

TWO BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION, ONE FROM MOTOROLA, INC., CHICAGO, ILLINOIS, AND ONE FROM THE RADIO CORPORATION OF AMERICA. THE LINK RADIO CORPORATION ACKNOWLEDGED RECEIPT OF THE INVITATION BUT DID NOT SUBMIT A BID. INSTEAD, IT FILED A FORMAL PROTEST AGAINST THE USE OF THE SPECIFICATIONS ON THE GROUND THAT THEY ARE RESTRICTIVE AND LIMIT THE EQUIPMENT REQUIRED TO THE PRODUCT OF MOTOROLA, INC.

WITH RESPECT TO THE ALLEGATION THAT THE ADVERTISED SPECIFICATIONS ARE RESTRICTIVE, IT IS STATED BY THE DIRECTOR, SUPPLY DIVISION, IN A MEMORANDUM DATED JANUARY 24, 1951, THAT CERTAIN SECTIONS OF THE SPECIFICATIONS ARE EQUAL TO THE HIGHEST STANDARDS PRESENTLY OBTAINABLE IN THE HIGHLY COMPETITIVE FIELD OF MOBILE COMMUNICATIONS AND THAT "IF THIS IS CONSIDERED RESTRICTIVE, IT IS BECAUSE CERTAIN MANUFACTURERS HAVE NOT KEPT ABREAST OF THE MARKET WITH REGARD TO RESEARCH AND PRODUCTION PROBLEMS.' IT IS STATED FURTHER THAT IT WOULD NOT BE IN THE INTEREST OF THE GOVERNMENT TO RELAX THE STRINGENCY OF THE SPECIFICATIONS, AND THAT IN THE PAST IT HAS BEEN NECESSARY IN SOME CASES FOR THE SUCCESSFUL BIDDER TO REDESIGN OR MODIFY ITS EQUIPMENT TO MEET THE SPECIFICATIONS DRAWN BY THE SUPPLY DIVISION. ALSO, IT IS STATED THAT THE SPECIFICATIONS WERE WRITTEN IN THE LIGHT OF, AND TO MEET, THE CONDITIONS ENCOUNTERED IN THE SOUTHWESTERN SECTION OF THE COUNTRY WHICH ARE NOT PRESENT IN THE EASTERN SECTION, SUCH AS HIGH OR RUGGED TERRAIN, AND THAT " MOTOROLA, INC., RECOGNIZING THE IMPORTANCE OF THE REFINEMENTS STIPULATED IN OUR SPECIFICATIONS ADAPTED THEM TO THEIR STANDARD DESIGN.'

THE FACTS CONCERNING THE RESPONSIVENESS OF THE BID OF THE RADIO CORPORATION OF AMERICA ARE ALSO SET FORTH IN THE MEMORANDUM FROM THE DIRECTOR, SUPPLY DIVISION, AND ON THE BASIS OF SUCH ANALYSIS AND ASSUMING THAT THE EQUIPMENT OFFERED BY RCA MEETS THE FIELD TESTS REQUIRED BY PARAGRAPH 3 OF THE DETAILED SPECIFICATION, RECOMMENDATION IS MADE BY THE DIRECTOR THAT AWARD OF CONTRACT BE MADE TO THAT CORPORATION. IT IS STATED FURTHER THAT THIS RECOMMENDATION IS STRENGTHENED BY THE FACT THAT RCA PROMISES DELIVERY WITHIN 30 CALENDAR DAYS WHEREAS THE ONLY OTHER BIDDER, MOTOROLA, INC., PROMISES DELIVERY WITHIN 35 TO 84 DAYS, AND THAT THIS PHASE OF THE MATTER IS DESERVING OF THE MOST SERIOUS CONSIDERATION BECAUSE "THIS EQUIPMENT IS REQUIRED TO RESTORE A VITAL COMMUNICATIONS SYSTEM RECENTLY EMASCULATED BY THE REQUIREMENTS FOR FURNISHING COMMUNICATIONS TO A NEW PROJECT EXTREMELY VITAL TO THE DEVELOPMENT OF NEW ATOMIC WEAPONS.'

IT IS, OF COURSE, NOT WITHIN THE PROVINCE OF THIS OFFICE TO DRAFT SPECIFICATIONS FOR THE CONTRACTUAL NEEDS OF ADMINISTRATIVE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT. 17 COMP. GEN. 554. MOREOVER, THE EQUIPMENT REQUIRED BY THE GOVERNMENT IN THIS MATTER IS OF A HIGHLY SPECIALIZED SCIENTIFIC NATURE AND THE QUESTION AS TO WHAT TYPE OF EQUIPMENT IS TO BE PROCURED TO MEET THE ACTUAL NEEDS OF THE GOVERNMENT IS FOR DETERMINATION ON THE BASIS OF EXPERT OPINION. WHILE THE LAW REQUIRING ADVERTISING FOR BIDS AND AWARD OF CONTRACTS TO THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER, IN EACH CASE, CONTEMPLATES FAIR AND UNRESTRICTED COMPETITION, THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE NEEDS WILL NOT BE SUFFICIENT TO WARRANT THE CONCLUSION THAT SUCH SPECIFICATIONS ARE UNDULY RESTRICTIVE. THUS, WHILE THE EQUIPMENT DESCRIBED IN THE INVITATION FOR BIDS HERE IN QUESTION MAY BE SIMILAR IN MANY RESPECTS TO THE EQUIPMENT OFFERED BY MOTOROLA, INC., IN VIEW OF THE REPORTED FACTS AND CIRCUMSTANCES THIS OFFICE WOULD NOT BE JUSTIFIED IN HOLDING THAT THE SPECIFICATIONS ARE RESTRICTIVE TO THE POINT OF PRECLUDING FREE AND OPEN COMPETITION.

WITH RESPECT TO THE DIRECTOR'S RECOMMENDATION THAT THE APPARENT LOW BID OF RCA BE ACCEPTED, HIS REPORT IS TO THE EFFECT THAT THE EQUIPMENT OFFERED BY THAT CORPORATION MEETS THE ESSENTIAL REQUIREMENTS OF THE SPECIFICATIONS AND THE NEEDS OF THE GOVERNMENT IN THIS PARTICULAR PROCUREMENT.

ACCORDINGLY, ON THE BASIS OF THE RECORD PRESENTLY BEFORE THIS OFFICE, AND IN VIEW OF THE SPECIAL CHARACTER OF THE WORK IN WHICH THE EQUIPMENT IS TO BE USED, THIS OFFICE WILL INTERPOSE NO OBJECTION TO THE AWARD OF A CONTRACT TO RCA IF YOUR AGENCY FINDS AND DETERMINES THAT SUCH ACTION WILL BE IN THE BEST INTEREST OF THE GOVERNMENT, PRICE AND ALL FACTORS CONSIDERED.

WITH THE EXCEPTION OF THE REFERRED-TO MEMORANDUM OF JANUARY 24, THE ENCLOSURES ACCOMPANYING YOUR LETTER ARE RETURNED HEREWITH.