B-153169, JUL. 23, 1964

B-153169, JUL. 23, 1964

TO MURDOCK CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF MAY 6, 1964, WHICH WAS FORWARDED TO OUR OFFICE BY THE DEPARTMENT OF THE ARMY, IN WHICH YOU MAKE CERTAIN COMMENTS IN REGARD TO OUR DECISION OF MARCH 20, 1964, TO YOU, WHEREIN WE HELD THAT NO LEGAL BASES EXISTED FOR QUESTIONING THE ACTION OF THE DEPARTMENT OF THE ARMY IN REJECTING YOUR BID SUBMITTED IN RESPONSE TO INVITATION NO. AMC-/E/-36-039-64-236-A5, COVERING THE PROCUREMENT OF ELECTRICAL HEADSETS.

THE RECORD INDICATES THAT TECHNICAL EVALUATION OF YOUR BID INCLUDED A PHYSICAL EXAMINATION OF A SAMPLE OF MURDOCK MODEL 122 HEADSET AS MODIFIED BY YOUR BID AND THAT YOUR BID WAS REJECTED BECAUSE OF THE FOLLOWING DEFICIENCIES:

"5.A. THE CAP OF RECEIVER R-14 OFFERED BY MURDOCK IS FLAT AND IS NOT EQUIVALENT TO THE CONCAVE CAP REQUIRED BY THE BRAND NAME PRODUCT, TRIMM PART NO. 156.

"B. IN THE MURDOCK HEADSET, THE RECEIVER HOUSING HAS HOLES IN THE PLASTIC FOR THE HOLDING BRACKET PINS. THIS IS NOT EQUIVALENT TO THE BRAND NAME PRODUCT CONSTRUCTION, WHERE THE BRACKET PINS FIT INTO METAL INSERTS OR SOCKETS IMBEDDED IN THE PLASTIC HOUSING.

"C. RECEIVER BRACKET IS ADJUSTED BY SLIDING INTO DESIRED POSITION, BUT HAS NO POSITIVE LOCKING FEATURE, AS REQUIRED BY THE BRAND NAME PRODUCT.

"D. HEADBAND IS VINYL COVERED, RATHER THAN RUBBER COVERED AS REQUIRED BY THE BRAND NAME PRODUCT.'

YOU STATE THAT IT IS YOUR OPINION THAT THE ONLY LEGITIMATE REASON THE CONTRACTING OFFICER HAD FOR REJECTING YOUR BID WAS THAT STATED IN SECTION 5.A, QUOTED ABOVE, REGARDING THE RECEIVER CAP. YOU ALLEGE THAT SINCE THE PURCHASE DESCRIPTION CONTAINED IN THE INVITATION DID NOT STATE THAT A CONCAVE CAP WAS REQUIRED AND SINCE THE PURCHASE DESCRIPTION ONLY DESCRIBED THE CAP AS BEING TRIMM PART 161-4, YOU WERE PLACED IN A POSITION OF GUESSING WHICH TYPE OF CAP WAS REQUIRED, THAT IS, FLAT OR CONCAVE. YOU CONTEND THAT IF A CONCAVE CAP WAS DESIRED AND CONSIDERED ESSENTIAL, IT SHOULD HAVE BEEN SO STATED IN THE PURCHASE DESCRIPTION. YOU STATE THAT YOUR CORPORATION HAS FURNISHED CONCAVE AS WELL AS FLAT RECEIVER CAPS TO YOUR CUSTOMERS ON AN INTERCHANGEABLE BASIS WITH NO CHANGE IN PRICE.

WHILE IT IS TRUE THAT IT WOULD HAVE BEEN PREFERABLE IF IN THE INVITATION THE CONTRACTING OFFICE HAD IDENTIFIED THE REQUIRED TYPE OF RECEIVER CAP BY NAME, THAT IS, CONCAVE OR FLAT, RATHER THAN AS TRIMM PART NO. 160-4, THE FACT REMAINS THAT YOUR FIRM COULD HAVE ASCERTAINED THE TYPE OF RECEIVER CAP COVERED BY TRIMM PART NO. 160-4 BY CONTACTING THAT OFFICE. ALSO, THE RECORD INDICATES THAT YOU WERE AWARE OF THE FACT THAT YOUR MODEL 131-L ELECTRICAL HEADSET, WHICH HAD BEEN ACCEPTED BY THE DEPARTMENT OF THE ARMY AS AN EQUIVALENT TO TRIMM MODEL 156--- THE MODEL CITED IN THE INVITATION-- - WAS EQUIPPED WITH A CONCAVE RECEIVER CAP. IN REGARD TO THE USE OF COMMERCIAL PART DESIGNATIONS IN INVITATIONS FOR BIDS, YOU MAY BE ADVISED THAT BECAUSE OF YOUR PROTEST A REQUEST HAS BEEN MADE BY THE UNITED STATES ARMY ELECTRONICS MATERIEL AGENCY TO THE UNITED STATES ARMY ELECTRONICS MATERIEL SUPPORT AGENCY, THE TECHNICAL AGENCY RESPONSIBLE FOR PROCUREMENT DATA PACKAGES, TO PREPARE A COMPETITIVE PROCUREMENT DATA PACKAGE WHICH WILL REFERENCE MILITARY DOCUMENTS AND THEREBY OBVIATE THE NEED FOR REFERENCE TO COMMERCIAL PART DESIGNATIONS IN FUTURE PROCUREMENT ACTIONS.

ACCORDINGLY, OUR DECISION OF MARCH 20, 1964, DENYING YOUR PROTEST IS AFFIRMED.

IN REGARD TO YOUR REQUEST FOR A COPY OF THE TECHNICAL EVALUATION REPORT ON YOUR BID, THERE ARE ENCLOSED COPIES OF THE ARMY ENGINEER'S REPORTS DATED NOVEMBER 5, 1963, AND FEBRUARY 26, 1964.