B-142550, MAY 9, 1960

B-142550, MAY 9, 1960

TO GENERAL ELECTRIC COMPANY:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED APRIL 8, 1960, PROTESTING AGAINST THE SPECIFICATIONS CONTAINED IN INVITATION FOR BIDS NO. M6-67-60, AS AMENDED, ISSUED BY THE VETERANS ADMINISTRATION SUPPLY DEPOT, SOMERVILLE, NEW JERSEY, ON MARCH 10, 1960, FOR THE FURNISHING OF X-RAY APPARATUS, RADIOGRAPHIC AND FLUOROSCOPIC.

FIVE BIDS WERE RECEIVED AND OPENED ON APRIL 11, 1960, AND YOUR COMPANY SUBMITTED THE LOWEST AGGREGATE BID FOR ITEMS 1 THROUGH 6, INCLUSIVE, IN THE NET AMOUNT OF $486,220. THE AGGREGATE BID OF LAND AIR, INC., MATTERN X-RAY DIVISION, WAS THE NEXT LOWEST IN THE AMOUNT OF $573,100, FOLLOWED BY THE BID OF THE STANDARD X-RAY COMPANY IN THE AMOUNT OF $606.625, AND THAT SUBMITTED BY THE PICKER X-RAY CORPORATION IN THE AGGREGATE AMOUNT OF $629,825.

WE HAVE CONSIDERED THE SEVERAL CONTENTIONS ADVANCED IN YOUR TELEGRAM IN SUPPORT OF YOUR POSITION THAT THE SUBJECT INVITATION WAS RESTRICTIVE OF COMPETITIVE, AND WE HAVE CONCLUDED ON THE BASIS OF ALL THE FACTS BEFORE US AND THE LAW APPLICABLE THERETO THAT AWARD UNDER THE INVITATION PROPERLY MAY BE MADE TO THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER.

YOUR CONTENTIONS WILL BE CONSIDERED IN THE ORDER PRESENTED.

NO UNCERTAINTY EXISTED AS TO THE AVAILABILITY OF THE X-RAY TUBES COVERED BY THE INVITATION SPECIFICATIONS. TUBES HAVING CHARACTERISTICS SIMILAR TO THOSE REQUESTED BY THE INVITATION ARE AVAILABLE FROM THREE MANUFACTURERS; DUNLEE CORPORATION, MACHLETT LABORATORIES, AND THE NORTH AMERICAN PHILIPS COMPANY. ALTHOUGH THE TWO EXPOSURES DESIRED BY THE VETERANS ADMINISTRATION FOR ANGIOGRAPHIC PROCEDURES COULD NOT BE OBTAINED COMMERCIALLY, THIS SAME EXCEPTION TO THE INVITATION WAS APPLICABLE TO ALL BIDDERS,IF EXCESSIVE FILAMENT EVAPORATION COULD BE TOLERATED, THE TUBE OFFERED BY THE ABOVE-NAMED CONCERNS COULD BE CONSIDERED AS REASONABLY COMPLYING WITH THE INVITATION SPECIFICATIONS.

IT IS FURTHER CONTENDED THAT INDUSTRY HAS NO RATING CHARTS AVAILABLE WHICH WOULD COMPLY WITH THE ADMINISTRATION'S REQUIREMENTS. SUCH IS NOT THE CASE. RATING CHARTS HAVE BEEN AVAILABLE SINCE THE APPARATUS WAS DISPLAYED AT THE NORTH AMERICAN RADIOLOGICAL CONVENTION AT CHICAGO IN NOVEMBER 1959, AND HAVE BEEN FURNISHED UNDER THE INVITATION.

CONCERNING YOUR ALLEGATION THAT NO SINGLE PHASE STARTERS ARE AVAILABLE FROM TUBE MANUFACTURERS, IT IS REPORTED THAT THESE STARTERS ARE PRESENTLY AVAILABLE FROM THE DUNLEE CORPORATION, THE NORTH AMERICAN PHILIPS CORPORATION (TWO TYPES, ONE VARIABLE), AND LAND AIR, INC.

WITH RESPECT TO YOUR STATEMENTS RELATING TO THE TYPE OF LINE AND LINE VOLTAGE FROM WHICH THE APPARATUS WILL FUNCTION TO DELIVER 300 MA AT 150 KV, THE VETERANS ADMINISTRATION ADVISES THAT THIS REQUIREMENT IS AVAILABLE FROM EQUIPMENT MANUFACTURED BY SIX MANUFACTURERS. IT WAS NOT BELIEVED NECESSARY THAT A METHOD BE DESCRIBED IN THE INVITATION FOR THE MEASUREMENT OF KILOVOLTAGE SINCE THERE EXIST SEVERAL METHODS KNOWN TO THE INDUSTRY THAT CAN MEASURE THIS PARAMETER WITHIN THE PRESCRIBED TOLERANCE. THE DIFFERENCE BETWEEN 140 KV AND 150 KV REPRESENTS APPROXIMATELY ONLY 15 PERCENT IN RADIATION.

THE PURCHASE DESCRIPTION DESCRIBING THE TYPE OF APPARATUS INVOLVING CERTAIN TECHNOLOGICAL ADVANCEMENTS TO PERMIT OBTAINING RADIOGRAPHS DEPICTING MORE INFORMATION WITH LESS RADIATION REFERENCED THE FEDERAL SPECIFICATION GG-X-635A, AS AMENDED. ON SEPTEMBER 10, 1959, ALL MANUFACTURERS WERE INFORMED OF THE ADMINISTRATION'S DESIRE FOR APPARATUS CAPABLE OF HIGHER KILOVOLTAGE TECHNIQUES. ON FEBRUARY 10, 1960, MR. WILLIAM RAYER OF YOUR COMPANY WAS SHOWN A DRAFT OF THE SUGGESTIONS FOR REVISION OF GG-X-635A. HE INDICATED HIS APPROVAL. THE VETERANS ADMINISTRATION STATES THAT GENERAL ELECTRIC IS THE ONLY EQUIPMENT SUPPLIER OF ALL THE MAJOR AND MINOR COMPANIES IN THE INDUSTRY WHICH DOES NOT MAKE THIS TYPE OF APPARATUS.

IN THE COVERING LETTER ACCOMPANYING YOUR BID, YOU STATED THAT "VARIATIONS TO THE MODIFIED SPECIFICATIONS USED IN THIS PROCUREMENT ARE SHOWN BELOW FOR THE EQUIPMENT WE INTEND TO SUPPLY.' TEN DEVIATIONS FROM SPECIFICATIONS WERE LISTED THEREIN WITH EXPLANATIONS THEREFOR. SUCH QUALIFICATION OF YOUR BID RENDERED IT NON-RESPONSIVE TO THE REQUIREMENTS OF THE SPECIFICATIONS CONTAINED IN THE INVITATION.

THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS IS PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCIES. 17 COMP. GEN. 554. WHILE IT IS THE DUTY OF OUR OFFICE TO DETERMINE WHETHER SPECIFICATIONS AS WRITTEN ARE UNDULY RESTRICTIVE OF COMPETITION, THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEED IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. 30 COMP. GEN. 368; 33 ID. 586; 36 ID. 251. THERE IS NO REQUIREMENT THAT THE UNITED STATES 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 CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEED.

THE RECORD BEFORE THIS OFFICE CONTAINS NO EVIDENCE THAT THE SPECIFICATIONS PRECLUDED ALL BIDDERS FROM MEETING THE REQUIREMENTS SET OUT THEREIN. THE FACT THAT THE PURCHASE SPECIFICATIONS FOR THIS PARTICULAR PROCUREMENT WERE SUBJECT TO THE PROVISIONS OF FEDERAL SPECIFICATIONS INDICATES THAT THE REQUIREMENTS PRESCRIBED BY THE INVITATION FOR BIDS REFLECTED A BONA FIDE DETERMINATION OF THE MINIMUM NEEDS OF THE GOVERNMENT, ADAPTED AFTER A CAREFUL STUDY OF THE NEED TO BE MET.

IT IS THEREFORE OUR OPINION THAT THE PRESENT RECORD DOES NOT SUPPORT YOUR CONTENTION THAT THE SPECIFICATIONS REFLECTED REQUIREMENTS WHICH DENIED THE GOVERNMENT THE BENEFITS OF COMPETITION.

MOREOVER, ACCEPTANCE OF YOUR BID COULD ONLY HAVE BEEN ACCOMPLISHED BY A WAIVER OF REQUIREMENTS SET OUT IN THE INVITATION FOR BIDS. SUCH ACTION WOULD HAVE BEEN MANIFESTLY UNFAIR, NOT ONLY TO THE OTHER BIDDERS WHO, IF THEY HAVE HAD KNOWLEDGE OF A RELAXATION OF THE REQUIREMENTS, MAY HAVE BEEN ABLE TO SUBMIT A LOWER BID, BUT ALSO TO OTHER MANUFACTURERS WHO POSSIBLY WERE UNABLE TO MEET THE ORIGINAL REQUIREMENTS BUT WHOSE PRODUCTS WOULD HAVE BEEN ACCEPTABLE IN THE EVENT OF SOME RELAXATION IN SUCH REQUIREMENTS. WHILE IT IS TRUE THAT MINOR DEVIATIONS FROM THE CONDITIONS SET OUT IN THE INVITATION FOR BIDS MAY BE WAIVED, A DEVIATION, AS HERE, WHICH AFFECTS THE QUALITY, QUANTITY OR PRICE OF THE ARTICLES OFFERED, SO AS TO BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS, MUST BE CONSIDERED A MAJOR DEVIATION AND MAY NOT BE WAIVED. 30 COMP. GEN. 179; 17 ID. 554.

ACCORDINGLY, AND IN VIEW OF THE MANDATORY REQUIREMENTS OF 41 U.S.C. 253 (B) THAT AWARDS UNDER FORMAL ADVERTISED PROCEDURES SHALL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID,"CONFORMING TO THE INVITATION FOR BID," WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED, WE ARE CONSTRAINED TO CONCLUDE THAT AWARD MAY NOT BE MADE TO YOU UNDER THE TERMS OF THE INVITATION.