B-152209, NOV. 29, 1963

B-152209, NOV. 29, 1963

TO MICROWAVE ASSOCIATES, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 1 AND OCTOBER 25, 1963, PROTESTING THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. AMC-36-039-63-1757-B1 ISSUED BY THE UNITED STATES ARMY ELECTRONICS MATERIEL AGENCY, PHILADELPHIA, PENNSYLVANIA, ON MARCH 27, 1963.

THE INVITATION SOLICITED BIDS--- TO BE OPENED ON APRIL 10, 1963--- FOR FURNISHING CERTAIN QUANTITIES OF AN ELECTRON TUBE. TR, KU BAND, "PER SPECIFICATION MIL-E-1D AND ORDNANCE DRAWINGS NO. 9151022D AND 9136800A.' SPECIFICATION MIL-E-1D IS A GENERAL SPECIFICATION FOR ELECTRON TUBES. ORDNANCE DRAWINGS 9151022D AND 9136800A PERTAIN MORE SPECIFICALLY TO THE TUBES WHICH ARE THE SUBJECT OF THE INVITATION. AMONG THE INFORMATION SET OUT IN DRAWING 9151022D IS THE FOLLOWING:

"6. APPROVED SOURCE: MICROWAVE ASSOCIATES, INC. BURLINGTON, MASSACHUSETTS PART NO. MA372

ALL SOURCES MUST COMPLY WITH THE PHYSICAL AND FUNCTIONAL REQUIREMENTS OF THE MANUFACTURER'S ITEM INDICATED.'

BIDS WERE SOLICITED ON CERTAIN RANGE QUANTITIES FROM 104 TO 624 AND ON A PREFERRED DELIVERY SCHEDULE CALLING FOR COMPLETION WITH 30 DAYS "AFTER DATE OF AWARD DOCUMENT" AS WELL AS ON AN ALTERNATE DELIVERY SCHEDULE CALLING FOR COMPLETION WITH 60 DAYS "AFTER DATE OF AWARD DOCUMENT" AND A SECOND ALTERNATE DELIVERY SCHEDULE CALLING FOR DELIVERY WITHIN 90 DAYS AFTER DATE OF AWARD. THE RANGE QUANTITIES WERE DIVIDED INTO THREE GROUPS. THE FIRST GROUP CALLED FOR 104 TO 207 TUBES; THE SECOND GROUP, FROM 208 TO 415 TUBES; AND THE THIRD GROUP FROM 416 TO 624 TUBES. ELEVEN FIRMS WERE SOLICITED. EIGHT REPLIES WERE RECEIVED AND THREE BIDS WERE RECEIVED. VARIAN ASSOCIATES, BOMAC DIVISION, SUBMITTED A BID ON THE SECOND ALTERNATE DELIVERY SCHEDULE ONLY. ITS BID ON THE THREE RANGE QUANTITIES WAS $182.48; $166.75 AND $153.58 PER TUBE. METCOM, INC., SUBMITTED A BID ON EACH QUANTITY FOR EACH OF THE THREE DELIVERY SCHEDULES. ON THE PREFERRED DELIVERY SCHEDULE IT QUOTED PRICES OF $223.50; $135 AND $109.50 PER UNIT. ITS BID ON THE FIRST ALTERNATE DELIVERY SCHEDULE WAS THE SAME AS THAT ON THE SECOND DELIVERY SCHEDULE. YOUR BID COVERED THE PREFERRED DELIVERY SCHEDULE ONLY. BEFORE THE OPENING OF BIDS THE PROCURING AGENCY ANNOUNCED ITS INTENTION OF PURCHASING A TOTAL OF 593 TUBES. THE BID OF METCOM OF $109.50 EACH ON THE PREFERRED DELIVERY SCHEDULE WAS THE LOW BID RECEIVED AS COMPARED WITH YOUR BID OF $160 EACH.

WHEN THE CONTRACTING OFFICER DECIDED THAT METCOM HAD SUBMITTED A RESPONSIVE BID YOU PROTESTED THE AWARD OF A CONTRACT TO ANY OTHER FIRM SINCE YOUR FIRM WAS "THE ONLY COMPANY THAT HAS THE COMPLETE SPECIFICATION FOR THIS TUBE.' IN OTHER WORDS, YOU CONTEND THAT NO OTHER MANUFACTURER COULD COMPLY WITH ALL THE REQUIREMENTS OF YOUR PROPRIETARY SPECIFICATION FOR YOUR TUBE MA372 AND THEREFORE THE GOVERNMENT DID NOT SECURE ADEQUATE COMPETITION.

THE REPORT OF THE ADMINISTRATIVE OFFICE SHOWS THAT METCOM HAS DEVELOPED SPECIFICATIONS FOR MANUFACTURING THE TUBES IN QUESTION AND IT IS REPORTED THAT THE ONLY SIGNIFICANT DIFFERENCE BETWEEN YOUR SPECIFICATION AND METCOM'S SPECIFICATION IS WITH REGARD TO THE 500 HOUR LIFE TEST. IN YOUR SPECIFICATION THIS TEST IS TO BE PERFORMED ON SAMPLES DURING PRODUCTION WHEREAS METCOM'S SPECIFICATION CALLS FOR THIS TEST AS A QUALIFICATION TEST PRIOR TO STARTING PRODUCTION. IN THIS REGARD IT IS DESIRED TO REFER TO NOTE 6 OF ORDNANCE DRAWING NO. 9151022D, QUOTED ABOVE, WHICH THE PROCUREMENT ENGINEER AND CONTRACTING OFFICER HAVE CONSIDERED AS MERELY SETTING OUT THE "APPROVED SOURCE" AS YOUR FIRM AND THE APPROVED TUBE AS YOUR MA372 TUBE. THE STATEMENT THAT ALL SOURCES MUST COMPLY WITH THE PHYSICAL AND FUNCTIONAL REQUIREMENTS OF YOUR TUBE DID NOT HAVE ANY REFERENCE TO THE METHOD OF PERFORMING THE LIFE TEST AS THIS IS NOT A "PHYSICAL AND FUNCTIONAL REQUIREMENT" AND THE REQUIREMENT FOR A LIFE TEST IS RELATED ONLY TO INSPECTION PROCEDURES. FURTHERMORE, WHILE YOU ARE OF THE OPINION THAT THE DRAWINGS AND NOTES THEREON DO NOT CONTAIN SUFFICIENT INFORMATION TO MANUFACTURE THE ITEM DESIRED BY THE GOVERNMENT, THE PROCUREMENT ENGINEER WAS OF THE OPINION THAT THE NOTES ON THE DRAWING CONTAINED SUFFICIENT INFORMATION TO MANUFACTURE THE TUBES AND THIS IS CONFIRMED BY THE FACT THAT TWO UNQUALIFIED BIDS IN ADDITION TO YOUR BID WERE RECEIVED. ANOTHER BIDDER STATED THAT "AFTER CAREFUL REVIEW" OF THE INVITATION IT DECIDED NOT TO SUBMIT A BID "DUE TO THE TEMPORARY UTILIZATION OF ALL OF OUR PERSONNEL AND EQUIPMENT," WHICH TENDS TO INDICATE THAT IT CONSIDERED THE INVITATION SUFFICIENTLY DETAILED TO PRODUCE THE ITEM DESIRED BY THE GOVERNMENT. IN FACT, METCOM HAS AND IS PRESENTLY FURNISHING A NUMBER OF THE INVOLVED TUBES (63 IN NUMBER) CONTRACTED FOR AS A RESULT OF NEGOTIATIONS BECAUSE OF A CRITICAL REQUIREMENT; HOWEVER, THE 500-HOUR LIFE TEST REQUIREMENT WAS WAIVED WITH THE TEST RESULTS TO BE FURNISHED AFTER DELIVERY. IT IS UNDERSTOOD THAT YOU ALSO HAVE RECEIVED AN EMERGENCY ORDER FOR 100 TUBES AT A PRICE SLIGHTLY LOWER THAN METCOM'S BID PRICE.

WHILE YOU HAVE CONTENDED THAT THE DRAWINGS WERE RESTRICTIVE AND DID NOT PERMIT FULL AND FREE COMPETITION NO EVIDENCE HAS BEEN PRESENTED THAT ANY PARTY FAILED TO BID OR WAS PREJUDICED BECAUSE OF THE LACK OF INFORMATION IN THE INVITATION. YOU WERE NOT PREJUDICED BY ANY LACK OF INFORMATION SINCE YOUR SPECIFICATION IS INVOLVED. WHILE IT MAY BE THAT THE REQUIREMENTS WITH RESPECT TO TESTING COULD HAVE BEEN MORE DEFINITE, THE OTHER INTERESTED BIDDERS HAVE NOT DIVULGED THEIR PRICES AND IT DOES NOT APPEAR THAT ANY REAL PURPOSE WOULD BE SERVED BY NOW CANCELING THE INVITATION AND READVERTISING THIS REQUIREMENT.