B-147105, DEC. 11, 1961

B-147105, DEC. 11, 1961

TO BURNDY OF OHIO, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAMS DATED SEPTEMBER 1 AND 6, 1961, PROTESTING ANY AWARD OF CONTRACTS BY THE DEPARTMENT OF THE AIR FORCE TO THE SIGHTMASTER CORPORATION, PROVIDENCE, RHODE ISLAND, UNDER INVITATION FOR BIDS NOS. 33-604-61-630 AND 33-604-61-628.

INVITATION NO. 630 WAS ISSUED ON JUNE 8, 1961, BY THE DAYTON AIR FORCE DEPOT, GENTILE AIR FORCE STATION, AND SOLICITED BIDS ON FURNISHING SIX ITEMS OF VARIOUS TYPES AND QUANTITIES OF LIMITERS---FUSE CARTRIDGES. EACH ITEM CONTAINED A BRIEF DESCRIPTION AND WAS IDENTIFIED BY CERTAIN PART NUMBERS OF YOUR CORPORATION. IN ADDITION, THE INVITATION PROVIDED THAT:

"* * * BIDS OFFERING "OR EQUAL" SUPPLIES WILL BE CONSIDERED FOR AWARD IF SUCH SUPPLIES ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL TO THE BRAND NAME SUPPLIES IN ALL MATERIAL RESPECTS.'

EIGHT BIDS WERE RECEIVED, INCLUDING THE BID OF $77,242.50 OF YOUR CORPORATION, IN RESPONSE TO THE INVITATION. AFTER AN EVALUATION OF THE BIDS, WHICH RESULTED IN THE REJECTION OF SEVERAL LOW BIDS FOR ITEM NO. 1, AS NOT COMPLYING WITH THE SPECIFICATION REQUIREMENTS, AN AWARD WAS MADE ON AUGUST 24, 1961, TO THE SIGHTMASTER CORPORATION, PROVIDENCE, RHODE ISLAND, AS THE LOWEST ACCEPTABLE BIDDER ON ITEMS NOS. 1, 2, 3, 4 AND 6, RESULTING IN CONTRACT NO. AF 33 (604/-36792 IN THE AMOUNT OF $29,428.50. IT IS REPORTED THAT THE CONTRACT HAS BEEN SUBSTANTIALLY PERFORMED AND NO STOP WORK ORDER HAS BEEN ISSUED. THE GENERAL ELECTRIC SUPPLY COMPANY, DAYTON, OHIO, WAS AWARDED CONTRACT NO. AF 33 (604/-36793 IN THE AMOUNT OF $3,710.61 AS THE LOW BIDDER FOR ITEM NO. 5.

INVITATION NO. 628 WAS ISSUED ON JUNE 15, 1961, ALSO BY THE DAYTON AIR FORCE DEPOT, GENTILE AIR FORCE STATION, AND SOLICITED BIDS ON ITEMS NOS. 1 THROUGH 26, FOR FURNISHING INDEFINITE QUANTITIES OF VARIOUS TYPES OF LIMITERS OR ASSORTED FUSES ON A CALL BASIS WHICH COVERED DIFFERENT TYPES OF LIMITERS THAN THOSE REQUIRED UNDER INVITATION NO. 630. ITEMS NOS. 10 THROUGH 22--- INVOLVED IN YOUR PROTEST--- SET FORTH BRIEF DESCRIPTIONS OF THE EQUIPMENT TO BE FURNISHED AND ALSO ARE IDENTIFIED BY CERTAIN PART NUMBERS OF YOUR CORPORATION. IN ADDITION, INVITATION NO. 628 CARRIED THE IDENTICAL PROVISION, CITED ABOVE, UNDER INVITATION NO. 630, SETTING FORTH THE CONDITIONS UNDER WHICH BIDS PROPOSING TO FURNISH "OR EQUAL" EQUIPMENT WOULD BE CONSIDERED. IT APPEARS THAT 12 BIDS WERE RECEIVED IN RESPONSE TO THIS INVITATION AND THAT THE SIGHTMASTER CORPORATION SUBMITTED THE LOW BID ON ITEMS NOS. 10, 11, 12, 14, 15, 16 AND 23. NO AWARDS HAVE BEEN MADE TO DATE, HOWEVER, UNDER INVITATION NO. 628 PENDING THE RESULTS OF CERTAIN TESTS AND OTHER EVALUATING MEDIA.

IN YOUR TELEGRAM DATED SEPTEMBER 1 AND 6, 1961, YOU PROTEST ANY AWARDS UNDER BOTH INVITATIONS BECAUSE OF A DECISION OF THE AIR FORCE THAT THE SIGHTMASTER PARTS ARE EQUAL TO THOSE OF YOUR CORPORATION. YOU STATE THAT THIS DECISION WAS BASED ON TIME-CURRENT CHARACTERISTIC CURVES AND THAT YOU QUESTION THE BASIS OF THE TESTS RUN FOR THESE CURVES SINCE YOU CONTEND THAT ONLY THREE FACILITIES--- BOEING AIRCRAFT COMPANY, WRIGHT-PATTERSON AIR FORCE BASE AND THE JOHNSVILLE PENNSYLVANIA NAVAL AIR DEVELOPMENT CENTER--- HAVE THE EQUIPMENT TO TEST LIMITERS OF THE TYPE REQUIRED. YOU STATE FURTHER THAY ANY TESTS RUN AT ANY OTHER FACILITY MUST BE CONDUCTED UNDER THE DIRECT SUPERVISION OF THE WRIGHT-PATTERSON AIR FORCE BASE AND THAT YOU HAVE FOUND THAT NO SUCH TESTS HAVE BEEN CONDUCTED ON THE MATERIAL HERE OFFERED.

WITH RESPECT TO INVITATION NO. 630, THE DEPARTMENT OF THE AIR FORCE REPORTS THAT IN EVALUATING THE BID OF THE SIGHTMASTER CORPORATION, WHICH WAS THE LOWEST ACCEPTABLE BID RECEIVED FOR ITEM NO. 1 AND THE LOWEST OVERALL BID FOR ITEMS NOS. 2, 3, 4 AND 6, AND WHICH OFFERED PRODUCTS OF ITS OWN MANUFACTURE AS THE EQUAL OF THOSE SPECIFIED BY THE BRAND NAME, TECHNICAL PERSONNEL OF THE AIR FORCE PROCURING ACTIVITY FOUND THAT THE PRODUCTS OFFERED BY SIGHTMASTER UNDER ITEMS NOS. 1, 2, 3, 4 AND 6, WERE ACCEPTABLE IN ALL MATERIAL RESPECTS AND, THEREFORE, THE EQUAL OF THE BRAND NAME SPECIFIED IN THE INVITATION. IT IS REPORTED THAT THIS DETERMINATION WAS BASED ON INFORMATION ACQUIRED FROM SIGHTMASTER DRAWING NO. AFS-000 AND CATALOGUE 61 AS WELL AS FROM INFORMATION REGARDING TIME VS. CURRENT CHARACTERISTIC CURVES. IN ADDITION, IT APPEARS THAT THE SIGHTMASTER CORPORATION PREVIOUSLY FURNISHED COMPARABLE EQUIPMENT WHICH WAS ACCEPTABLE TO THE DEPARTMENT OF THE NAVY AFTER TECHNICAL REPORTS SHOWED THAT SUCH ITEMS WERE TESTED TO THE REQUIREMENTS OF THE APPLICABLE MILITARY SPECIFICATION. ALSO, THE TECHNICAL PERSONNEL OF THE PROCURING ACTIVITY HAVE ADVISED THAT FACILITIES OTHER THAN THE THREE TESTING INSTALLATIONS REFERRED TO BY YOU HAVE THE NECESSARY EQUIPMENT TO DEVELOP THE TEST CURVES AND THAT THE TIME-CURRENT CURVES CAN BE ACCOMPLISHED BY ANY REPUTABLE TESTING LABORATORY.

MOREOVER, SINCE THE AWARD OF CONTRACT NO. AF 33 (604/-36792 THE USING ACTIVITY OF THE AIR FORCE ADVISES THAT ONLY COMPLETELY TESTED LIMITERS WILL BE ACCEPTED AND, THEREFORE, THE EQUIPMENT FURNISHED BY SIGHTMASTER WILL BE SERVICE TESTED BY THE AIR FORCE PRIOR TO ITS USE. THE EQUIPMENT TO BE FURNISHED BY THE CORPORATION INVOLVES FLIGHT SAFETY AND REASONABLE PRUDENCE DICTATES THAT IT SHOULD BE SERVICE TESTED WHENEVER THERE IS EVEN THE SLIGHTEST DOUBT THAT FLIGHT SAFETY WILL BE ENDANGERED. IN VIEW OF THIS, WE MUST CONCUR IN THE OPINION OF THE DEPARTMENT OF THE AIR FORCE THAT THIS REQUIREMENT FOR SERVICE TESTING SHOULD NOT BE CONSIDERED AS INDICATING THAT THE PRIOR EVALUATION TO ESTABLISH WHETHER THE SIGHTMASTER PRODUCTS WERE THE "EQUAL" OF THE BRAND NAMES SPECIFIED WAS INADEQUATE.

REGARDING THE LIMITERS OR ASSORTED FUSES TO BE FURNISHED UNDER INVITATION NO. 628, THE DEPARTMENT OF THE AIR FORCE REPORTS THAT THE CORPORATION'S LOW BID FOR ITEMS NOS. 10, 11, 12, 14, 15, 16 AND 23 WAS ON EQUIPMENT OF ITS OWN MANUFACTURE AS BEING THE EQUIVALENT OF THE BRAND NAME SPECIFIED AND THAT THE CORPORATION ALSO COMPLIED WITH THE SPECIFICATION REQUIREMENTS FOR SUBMITTING DATA. THE AWARD OF CONTRACT, HOWEVER, UNDER THIS INVITATION WILL BE HELD IN ABEYANCE PENDING THE RESULTS OF THE TESTING OF SAMPLES OF THE EQUIPMENT TO BE PROVIDED BY THE SIGHTMASTER CORPORATION AS WELL AS THE TESTING OF OTHER MANUFACTURERS' LIMITERS PRESENTLY IN STOCK. THE PURPOSE OF PERFORMING SUCH TEST IS, OF COURSE, TO DETERMINE EQUALITY OF THE ITEMS PROPOSED TO BE FURNISHED IN COMPARISON WITH THE ITEMS OF YOUR CORPORATION IN STOCK; ALSO, TO UTILIZE THE RESULTS OF SUCH TESTS TO CORRECT EXISTING PROCUREMENT DATA IF FOUND NECESSARY. THE AIR FORCE FURTHER REPORTS THAT, IF THE SIGHTMASTER CORPORATION ITEMS ARE PROVEN TO BE THE EQUAL OF YOUR EQUIPMENT THROUGH THE TEST PROGRAM REFERRED TO, AN AWARD WILL BE MADE TO SIGHTMASTER ON ALL LINES ON WHICH IT SUBMITTED THE LOW BID IN ACCORDANCE WITH THE TERMS OF THE INVITATION. ON THE OTHER HAND, IF THE ITEMS ARE NOT EQUAL THE AWARD WILL, OF COURSE, BE MADE TO THE NEXT LOW RESPONSIBLE BIDDER.

OUR OFFICE CONSISTENTLY HAS ADHERED TO THE RULE THAT WHETHER EQUIPMENT OFFERED BY THE BIDDER COMPLIES WITH THE REQUIREMENTS OF THE SPECIFICATION IS A MATTER OF ADMINISTRATIVE DETERMINATION, IN THIS INSTANCE, BY THE DEPARTMENT OF THE AIR FORCE. 35 COMP. GEN. 174. SUCH MATTERS FALL SQUARELY WITHIN THE FUNCTIONS OF THE DEPARTMENTS AND AGENCIES CONCERNED AND WHEN A SPECIFICATION LENDS ITSELF TO OPEN COMPETITION, AS REQUIRED BY APPLICABLE STATUTES, AND IT IS SHOWN THAT THE GOVERNMENT'S INTERESTS ARE FULLY PROTECTED OUR OFFICE WILL NOT INTERVENE. FROM THE FOREGOING, WE BELIEVE IT ONLY REASONABLY MAY BE CONCLUDED THAT THE AIR FORCE EITHER HAS TAKEN, OR WILL TAKE, SUCH ACTION UNDER BOTH INVITATIONS AS WILL INSURE PROTECTION OF THE GOVERNMENT'S INTEREST IN PROCURING EQUIPMENT THAT WILL BE THE EQUAL IN QUALITY, PERFORMANCE, ETC., OF THE EQUIPMENT IDENTIFIED IN THE INVITATIONS WITHOUT DETRIMENT TO THE INTERESTS OF OTHER BIDDERS.

ACCORDINGLY, WE MUST CONCLUDE THAT THE ACTION TAKEN BY THE DEPARTMENT OF THE AIR FORCE UNDER INVITATION NO. 630 AND THAT PROPOSED TO BE TAKEN UNDER INVITATION NO. 628 IN THESE MATTERS ARE NOT SUBJECT TO LEGAL OBJECTION.