B-153258, MAR. 26, 1964

B-153258, MAR. 26, 1964

TO ULTRASONIC INDUSTRIES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 23 AND DECEMBER 26, 1963, TO HONORABLE STEVEN B. DEROUNIAN CONCERNING PROTESTS LODGED BY YOU WITH THE CONTRACTING OFFICE, OGDEN AIR MATERIEL AREA, UNITED STATES AIR FORCE, HILL AIR FORCE BASE, UTAH (BY LETTER OF DECEMBER 23, 1963), AND THE OFFICE OF THE PURCHASING AND CONTRACTING OFFICE, U.S. ARMY GARRISON, FORT DEVENS, MASSACHUSETTS, WITH RESPECT TO THE ALLEGED RESTRICTIVE NATURE OF INVITATION FOR BIDS NO. 42-600-64-58, ISSUED BY THE OGDEN AIR MATERIEL AREA, AND INVITATION FOR BIDS NO. A1-19-035-64 28/MED), ISSUED BY THE PURCHASING AND CONTRACT OFFICE, FORT DEVENS.

FROM THE INFORMATION WHICH WE HAVE DEVELOPED IN THESE MATTERS, IT APPEARS THAT INVITATION NO. 42-600-64-58 CALLED FOR BIDS, TO BE OPENED NOVEMBER 12, 1963, FOR FURNISHING 20 EACH, 4940-861-0760, CLEANER, PORTABLE, ULTRASONIC, WHICH WAS REQUIRED, AMONG OTHER THINGS, TO BE EQUIPPED WITH A "MAGNETOSTRICTIVE TYPE" TRANSDUCER. IN THE BID DATED NOVEMBER 8, 1963, WHICH YOU SUBMITTED UNDER THE INVITATION, YOU OFFERED TO FURNISH PORTABLE ULTRASONIC CLEANERS AT A PRICE OF $205 EACH, OR FOR A TOTAL CONSIDERATION OF $4,100. HOWEVER, ON THE BID FORM, OPPOSITE THAT PART OF THE "PERFORMANCE SPECIFICATIONS" WHICH STIPULATED THAT THE "TRANSDUCER SHALL BE ZERO SPACED MAGNETOSTRICTIVE TYPE AND SHALL BE SECURELY BRAZED TO THE TANK BOTTOM," ETC., YOU NOTED AN EXCEPTION TO THE EFFECT THAT YOU WOULD NOT FURNISH A CLEANER WITH A MAGNETOSTRICTIVE-TYPE TRANSDUCER, BUT THE ITEM WHICH YOU WERE OFFERING WOULD BE EQUIPPED WITH A LEAD ZIRCONATE ALUMINUM COMPOSITE STACK PIEZOELECTRIC-TYPE TRANSDUCER, WHICH IS REFERRED TO IN THE TRADE AS A ,PIEZOELECTRIC" , OR "ELECTROSTRICTIVE" TYPE, WHICH YOU CONTENDED WAS FAR SUPERIOR FOR THE REASONS STATED IN EXPLANATORY MATERIAL ATTACHED TO YOUR BID.

OF THE SEVEN BIDS RECEIVED IN RESPONSE TO THE INVITATION, THE BID OF SPACE WHITE INDUSTRIES, C., OF RAHWAY, NEW JERSEY, IN THE AMOUNT OF $172 PER UNIT, WAS THE LOW BID IN DOLLAR AMOUNT; THAT OF UNION ULTRA SONICS CORPORATION, LOWELL, MASSACHUSETTS, IN THE AMOUNT OF $194.90 PER UNIT, WAS THE NEXT LOWEST; YOUR BID WAS THE THIRD LOWEST; AND THAT OF BENDIX CORPORATION, DAVENPORT, IOWA, IN THE AMOUNT OF $253.19 PER UNIT, WAS THE FOURTH LOWEST. THE SPACE WHITE BID WAS REJECTED AS NONRESPONSIVE BECAUSE, AMONG OTHER THINGS, THE UNIT OFFERED BY THE BIDDER WAS EQUIPPED WITH AN ELECTROSTRICTIVE, INSTEAD OF A MAGNETOSTRICTIVE-TYPE TRANSDUCER, AS REQUIRED. THE UNION ULTRA-SONICS BID WAS REJECTED BECAUSE THE DESCRIPTIVE LITERATURE SUBMITTED THEREWITH INDICATED THAT THE TRANSDUCER OF THE ITEM BEING OFFERED WAS BOLTED TO THE BOTTOM OF THE TANK, INSTEAD OF BEING "BRAZED" THERETO, AS REQUIRED BY THE SPECIFICATIONS. YOUR BID WAS REJECTED BECAUSE, AS INDICATED ABOVE, YOU OFFERED TO FURNISH AN ITEM WITH A LEAD ZIRCONATE ALUMINUM COMPOSITE STACK TRANSDUCER, INSTEAD OF ONE EQUIPPED WITH A MAGNETOSTRICTIVE-TYPE TRANSDUCER, AS SPECIFIED. TWO BIDS OFFERING MAGNETOSTRICTIVE TRANSDUCERS WERE NONRESPONSIVE BECAUSE THE TANK AND POWER UNITS WERE NOT SEPARATE AS REQUIRED BY THE SPECIFICATIONS; ONE OF THEM ALSO DEVIATED FROM THE POWER OUTPUT AND OPERATING FREQUENCY REQUIREMENTS. A CONTRACT FOR THE ITEM WAS AWARDED TO BENDIX CORPORATION ON DECEMBER 17, 1963, AS THE LOWEST RESPONSIVE BIDDER.

FOLLOWING RECEIPT OF ADVICE FROM THE CONTRACTING OFFICER AS TO THE BASIS FOR REJECTION OF YOUR BID, AND AS TO THE AWARD MADE, YOU WROTE THE CONTRACTING OFFICE UNDER DATE OF DECEMBER 23, 1963, IN PERTINENT PART, AS FOLLOWS:

"* * * I PROTEST YOUR DECISION TO REFUSE OUR BID ON THE BASIS OF BEING NONRESPONSIVE IN OFFERING A LEAD ZIRCONATE ALUMINUM STACK TRANSDUCER IN LIEU OF THE MAGNETOSTRICTIVE TYPE.

"I WOULD ASSUME THE GOVERNMENT IS INTERESTED IN PROCURING EQUIPMENT OF EQUAL OR SUPERIOR PERFORMANCE TO THAT SPECIFIED AT THE LOWEST PRICE. SUBMIT THAT THE U.I. EQUIPMENT AS DESCRIBED IS EQUAL TO OR SUPERIOR IN PERFORMANCE THAN THE EQUIPMENT SPECIFIED. * * *.

"THE SPECIFICATIONS AS WRITTEN IN THIS IFB MAKE MANDATORY THE DELIVERY OF BENDIX EQUIPMENT ONLY EVEN THOUGH THE NAME BENDIX WAS NOT MENTIONED IN THE BID. THE SPECIFICATIONS WERE OF SUCH NATURE AS TO REQUIRE INFRINGEMENT OF BENDIX PATENTS COVERING VARIOUS FEATURES AS SPECIFIED IN THIS IFB. THE SPECIFICATIONS AS WRITTEN IN THIS IFB WERE CLEARLY EXTRACTED VERBATIM FROM THE BENDIX LITERATURE. I PROTEST SUCH ACTION AS BEING EVASIVE, INSIDIOUS, AND CONCRETE EVIDENCE OF UNNATURAL FAVORITISM.

"I ALSO PROTEST THE AWARD OF THIS BID BY VIRTUE OF THE FACT THAT THE AWARD WAS MADE TO BIG BUSINESS (BENDIX) WHEREAS ULTRASONIC INDUSTRIES IS CERTIFIED BY THE SMALL BUSINESS ADMINISTRATION.

"FURTHERMORE AND REGARDLESS OF THE SPECIFICATIONS, I WISH TO CALL YOUR ATTENTION TO THE PROVEN DISADVANTAGES OF MAGNETOSTRICTIVE TRANSDUCERS AND TRANSISTORIZED GENERATORS AS IN THE BENDIX EQUIPMENT. THESE DISADVANTAGES ARE FULLY EXPRESSED IN THE ATTACHMENT SALES MEMO NO. 124. IT IS MY CONSIDERED OPINION THAT THE GOVERNMENT HAS NOT ONLY BID MORE FOR THE EQUIPMENT THAN NECESSARY, BUT HAS PURCHASED INFERIOR EQUIPMENT.'

SINCE THERE IS NOT INVOLVED HERE A SET-ASIDE FOR SMALL BUSINESS, THE FACT THAT ULTRASONIC INDUSTRIES MAY QUALIFY AS SUCH, WHEREAS BENDIX DOES NOT, HAS NO BEARING ON YOUR RIGHTS IN THE MATTER.

RELATIVE TO YOUR CONTENTION THAT THE SPECIFICATIONS "WERE CLEARLY EXTRACTED VERBATIM FROM THE BENDIX LITERATURE," WITH THE RESULT THAT ONLY BENDIX EQUIPMENT WOULD BE ACCEPTABLE THEREUNDER, THE CHIEF OF THE PROCUREMENT OPERATIONS DIVISION OF THE AIR FORCE STATES:

"2. * * *. THESE SPECIFICATIONS WERE NOT EXTRACTED FROM ANY SINGLE MANUFACTURER BUT RATHER THEY REPRESENT A COMPOSITE OF DESIRABLE, PRACTICAL AND FUNCTIONAL FEATURES OF COMMERCIALLY AVAILABLE SYSTEMS. THEY WERE DESIGNED TO PROVIDE SMALL PORTABLE ULTRASONIC CLEANERS WHICH ARE SUITABLE FOR USE IN AND OUT OF STANDARD CLEAN ROOMS, AND WHICH WOULD PROVIDE THE OPERATIONAL DURABILITY OF CONTINUOUS INDUSTRIAL USE.'

"4. THE NON-RESTRICTIVE CHARACTER OF THESE SPECIFICATIONS IS EVIDENT FROM THE FOLLOWING PERTINENT FACTS:

"A. THE FOLLOWING COMPANIES ARE KNOWN TO BE ABLE TO FURNISH ULTRASONIC CLEANERS WITH MAGNETOSTRICTIVE TYPE TRANSDUCERS: NATIONAL ULTRASONICS CORPORATION, SOMERVILLE, NEW JERSEY; UNION ULTRASONICS CORPORATION, LOWELL, MASSACHUSETTS; WESTINGHOUSE CORPORATION, SALT LAKE CITY, UTAH; AMERICAN STERILIZER COMPANY, ERIE, PENNSYLVANIA; SONIC SYSTEMS, INC., WESTBURY, NEW YORK; AND BLACKSTONE CORPORATION, JAMESTOWN, NEW YORK.

"B. ON THIS PROCUREMENT TWO BIDDERS OTHER THAN BENDIX CORPORATION OFFERED TO FURNISH CLEANERS EQUIPPED WITH MAGNETOSTRICTIVE TYPE TRANSDUCERS. ONE BID WAS HIGHER IN PRICE THAN THE AWARD AND THE OTHER WAS CONSIDERED NONRESPONSIVE DUE TO THE METHOD OF ATTACHMENT TO THE BOTTOM OF THE TANK.

"C. THIS PROTESTANT ITSELF SUBMITTED A PREVIOUS BID ON ULTRASONIC CLEANERS UNDER IFB 42-600-64-76 OPENED 15 MARCH 1962 WHICH SPECIFIED MAGNETOSTRICTIVE TYPE TRANSDUCERS. NO EXCEPTION WAS TAKEN TO THE SPECIFICATIONS. THE PROTESTANT'S BID WAS HIGH. IT ALSO HAS FURNISHED, UNDER CONTRACT NO. AF 42/600/-20786 TWO CLEANERS WITH MAGNETOSTRICTIVE TYPE TRANSDUCERS.'

IN SUPPORT OF THE STATEMENT IN PARAGRAPH 2 OF AIR FORCE'S ABOVE QUOTED LETTER OF FEBRUARY 12, 1964, WE HAVE BEEN FURNISHED WITH A MEMORANDUM PREPARED BY THE OPTICS UNIT AT OGDEN AIR MATERIEL AREA UNDER DATE OF JANUARY 16, 1964, ENTITLED "EXPLANATION OF PERFORMANCE SPECIFICATION DEVELOPMENT," WHICH READS AS FOLLOWS:

"1. THE FOLLOWING IS SUPPLIED AT YOUR REQUEST TO PROVIDE INFORMATION ON HOW THE PERFORMANCE SPECIFICATION FOR THE PROCUREMENT OF 4920-861-0760 CLEANER, PORTABLE ULTRASONIC WAS DEVELOPED. REFERENCES WILL BE MADE BY PARAGRAPH TO ATTACHMENT NO. 1, PERFORMANCE SPECIFICATIONS.

"2. REFERENCE PARAGRAPH NO. 1, ATTACHMENT NO. 1, REQUIRING CLEANERS BE PORTABLE AND SUITABLE FOR BENCH USE IN AF STANDARD CLEAN ROOMS. THIS REQUIREMENT WAS MADE TO FACILITATE MAXIMUM FLEXIBILITY IN UTILIZATION OF CLEANERS BOTH IN STANDARD CLEAN ROOMS AND CONTROLLED AREAS; SUCH AREAS BEING DEFINED IN USAF PUBLICATION, TECHNICAL ORDER 00-25-203.

"3. REFERENCE PARAGRAPH NO. 2, ATTACHMENT NO. 1. THE MINIMUM REQUIREMENT OF SIX INCHES IN TANK DEPTH COUPLED WITH A MAXIMUM CUBIC VOLUME NOT TO EXCEED 195 CUBIC INCHES WAS MADE TO INSURE THAT FROM A HIGH FREQUENCY POWER GENERATOR HAVING AN AVERAGE OUTPUT OF NOT LESS THAN 80 WATTS, MARGINAL CLEANING POWER WOULD BE AVAILABLE WITH MAXIMUM TANK DIMENSIONS. TO FURTHER ASSURE AT LEAST MINIMAL POWER WAS AVAILABLE AT MAXIMUM TANK SIZE THE AVERAGE POWER DELIVERED TO THE TANK BOTTOM WAS FURTHER SPECIFIED IN PARAGRAPH 3 AS 2.5 WATTS/SQ.IN. CONVERSLY, TO ASSURE ADEQUATE MINIMUM TANK SIZE A MAXIMUM AVERAGE POWER DELIVERED TO THE TANK BOTTOM WAS SPECIFIED WATTS/SQ.IN. THE TANK SO SPECIFIED BY PARAGRAPH 2 AND PARAGRAPH 3 COULD VARY FROM A MAXIMUM SIZE OF 4 INCHES BY 8 INCHES BY 6 INCHES DEEP TO A MINIMUM SIZE OF 4 INCHES BY 4 INCHES BY 6 INCHES DEEP.

"4. REFERENCE PARAGRAPH 3, ATTACHMENT NO. 1 OF THE SPECIFICATION WHICH PROVIDES FOR THE PERFORMANCE OF THE HIGH FREQUENCY POWER GENERATOR. INPUT POWER OF 110-120 VOLTS, 60 CYCLE WAS SPECIFIED SINCE IT IS THE MOST COMMON TYPE OF POWER AVAILABLE AND ELIMINATES ANY SPECIAL WIRING. USE OF AVAILABLE COMMON POWER PROVIDES MAXIMUM CLEANER LOCATION VERSATILITY. THE REQUIREMENT THAT THE POWER GENERATOR DELIVER AN AVERAGE OUTPUT OF NOT LESS THAN 80 WATTS AND THAT THE GENERATOR BE AT LEAST A FULL WAVE SELF RECTIFYING TYPE WAS MADE TO ASSURE ADEQUATE POWER DELIVERY TO THE CLEANING TANK TRANSDUCER. ATTACHMENT NO. 2 PROVIDES INFORMATION ON THE AVERAGE POWER OBTAINED FROM UNMODULATED, FULL WAVE RECTIFIED, AND 1/2 WAVE RECTIFIED POWER GENERATORS WITH A CONSTANT PEAK POWER. ATTACHMENT NO. 2 ALSO SHOWS THE EFFECT OF RECTIFICATION ON COMPONENT STRESSING WITHIN THE POWER GENERATOR WHILE HOLDING A CONSTANT AVERAGE POWER. SINCE LARGER COMPONENT STRESSING IS EVIDENT WITH 1/2 WAVE RECTIFIED SYSTEMS LARGER AND MORE COSTLY COMPONENTS ARE REQUIRED TO COPE WITH HIGHER PEAK LOADS. WHILE UNMODULATED OUTPUT IS MOST DESIRABLE, FULL WAVE RECTIFICATION IS ACCEPTABLE.

"5. FREQUENCY OUTPUT BETWEEN 20 AND 24KC PROVIDES EXCELLENT CAVITATION THRESHOLDS RESULTING IN PROPER SCRUBBING ACTION. CAVITATION OCCURS WHEN THE PRESSURE IN THE LIQUID IS REDUCED TO A VALUE LESS THEN THE VAPOR PRESSURE OF THE LIQUID. THE FREQUENCY OF 20 TO 24KC IS OUT OF THE AUDIBLE RANGE AND IS GENERALLY ACCEPTED AS THE DESIRABLE FREQUENCY FOR GENERAL ULTRASONIC CLEANING.

"6. REFERENCE PARAGRAPH 4, ATTACHMENT NO. 1 PURSUANT TO THE SELECTION OF MAGNETOSTRICTIVE TRANSDUCERS. ATTACHMENT NO. 3 PROVIDES AN ANALYSIS AND REASONS WHY THE SELECTION OF MAGNETOSTRICTIVE TRANSDUCERS WAS MADE OVER PIEZOELECTRIC OR ELECTROSTRICTIVE. THE METHOD OF ATTACHING THE TRANSDUCERS TO THE CLEANING TANK IS SPECIFIED AS BRAZING. THIS ACTION WAS TAKEN TO PROVIDE MAXIMUM COUPLING OF THE TRANSDUCER TO THE TANK BOTTOM. IDEALLY THE TRANSDUCER SHOULD BE AN INTEGRAL PART OF THE TANK BOTTOM. BRAZING ACHIEVES A METAL TO METAL CONNECTION FOR MAXIMUM ENERGY TRANSMISSION, MAXIMUM CAVATITION INTENSITY AND RESULTANT OPTIMUM CLEANING.

"7. REFERENCE PARAGRAPH 5, ATTACHMENT NO. 1. THE REQUIREMENT THAT THE TRANSDUCERIZED TANK AND POWER GENERATOR BE SEPARATE UNITS WAS DICTATED FROM THE FACT THAT THE POWER SUPPLIES CANNOT BE TOTALLY EXPLOSIONED PROOF AND CLEANING WILL BE ACCOMPLISHED WITH VARIOUS CLEANING AGENTS, SOME OF WHICH ARE FLAMMABLE. IT IS NOT DESIROUS TO HAVE THE POWER GENERATOR IN A POSITION THAT ANY SPLASHING OF SOLUTION WOULD COME IN CONTACT WITH THE POWER GENERATOR.

"8. REFERENCE PARAGRAPH 6, ATTACHMENT NO. 1. THE REQUIREMENT FOR SURFACE FINISH, EXCEPT STAINLESS STEEL BE SPOXY PAINT IS IN KEEPING WITH THE REQUIREMENTS OF USAF PUBLICATION, TECHNICAL ORDER 00-25-203 "STANDARDS AND GUIDELINES FOR THE DESIGN AND OPERATION OF CLEAN ROOMS AND CLEAN WORK STATIONS.'

"9. SPECIFICATIONS FOR ULTRASONIC CLEANERS AS OUTLINED IN ATTACHMENT NO. 1 WERE NOT EXTRACTED FROM ANY SINGLE MANUFACTURE BUT RATHER THEY REPRESENT A COMPOSITE OF DESIRABLE, PRACTICAL AND FUNCTIONAL FEATURES OF COMMERCIALLY AVAILABLE SYSTEMS. THE PERFORMANCE SPECIFICATION WAS DESIGNED TO PROVIDE SMALL PORTABLE ULTRASONIC CLEANERS WHICH WERE SUITABLE FOR USE IN AND OUT OF STANDARD CLEAN ROOMS, AND WHICH WOULD PROVIDE THE OPERATIONAL DURABILITY OF CONTINUOUS INDUSTRIAL USE.'

WHILE IN YOUR LETTER OF DECEMBER 23, 1963, TO THE CONTRACTING OFFICER, QUOTED ABOVE, YOU STATED THAT YOU PROTESTED HIS DECISION TO REFUSE YOUR BID ON THE BASIS OF ITS BEING "NON RESPONSIVE IN OFFERING A LEAD ZIRCONATE ALUMINUM STACK TRANSDUCER IN LIEU OF THE MAGNETOSTRICTIVE TYPE," IT IS OBVIOUS THAT THE PRODUCT WHICH YOU OFFERED TO SUPPLY DID NOT COMPLY WITH A MATERIAL REQUIREMENT OF THE SPECIFICATIONS, WHICH SPECIFIED THAT THE TRANSDUCER TO BE ATTACHED TO THE CLEANING TANK OF THE ITEM BEING PROCURED "SHALL BE ZERO SPACED MAGNETOSTRICTIVE TYPE," AND, HENCE, THAT YOUR BID WAS NOT RESPONSIVE TO THE CLEARLY STATED REQUIREMENTS OF THE INVITATION. UNDER THE GOVERNING STATUTORY LAW AND IMPLEMENTING ADMINISTRATIVE REGULATIONS RELATING TO COMPETITIVE BIDDING, THE CONTRACTING OFFICER WAS, THEREFORE, REQUIRED TO REJECT YOUR BID. SINCE YOU STATE IN YOUR LETTER OF DECEMBER 23, 1963, TO CONGRESSMAN DEROUNIAN THAT "IT IS OBVIOUS THAT A CONTRACTING OFFICER MADE THE AWARD LEGALLY BUT IT IS ALSO OBVIOUS THAT THE IFB WAS PREPARED DEVIOUSLY TO ASSURE AN AWARD TO BENDIX REGARDLESS OF BIDS SUBMITTED BY OTHERS," IT APPEARS THAT YOU DO NOT SERIOUSLY CONTEND THAT YOUR BID WAS RESPONSIVE TO THE INVITATION, SO AS TO ENTITLE YOU TO HAVE IT CONSIDERED FOR PURPOSES OF AWARD, AND THAT THE PRINCIPAL BASIS FOR YOUR PROTEST GOES TO WHAT YOU CONTEND WAS THE RESTRICTIVE CHARACTER OF THE SPECIFICATIONS, AND THE PROCURING ACTIVITY'S INSISTENCE UPON PROCURING A PRODUCT WHICH YOU CONSIDER TO BE INFERIOR TO YOURS, AT HIGHER COST TO THE GOVERNMENT.

THE DRAFTING OF SPECIFICATIONS FOR ITEMS TO BE PURCHASED FOR GOVERNMENT USE IS PRIMARILY THE RESPONSIBILITY OF THE USING AGENCY, AND AN AGENCY'S DETERMINATION AS TO ITS NEEDS WILL NOT ORDINARILY BE OVERRULED UNLESS SUCH DETERMINATION IS OBVIOUSLY ARBITRARY OR UNREASONABLE.

THE RECORD BEFORE US IN THIS MATTER FAILS TO ESTABLISH THAT THE REQUIREMENTS OF THE SPECIFICATIONS WERE SUCH AS TO PRECLUDE CONCERNS OTHER THAN BENDIX CORPORATION FROM SUCCESSFULLY PARTICIPATING IN THE BIDDING. YOUR PRINCIPAL OBJECTION TO THE SPECIFICATIONS APPEARS TO BE TO THE REQUIREMENT OF A MAGNETOSTRICTIVE-TYPE TRANSDUCER. AS INDICATED IN ITS LETTER OF FEBRUARY 12, 1964, QUOTED ABOVE, THE AIR FORCE HAS LISTED SIX CONCERNS WHICH ARE KNOWN TO BE ABLE TO FURNISH ULTRASONIC CLEANERS WITH MAGNETOSTRICTIVE-TYPE TRANSDUCERS, AND IT HAS DRAWN ATTENTION TO THE FACT THAT YOUR COMPANY SUBMITTED A PREVIOUS BID ON ULTRASONIC CLEANERS UNDER IFB 42-600-64-76, OPENED MARCH 15, 1962, WHICH SPECIFIED MAGNETOSTRICTIVE- TYPE TRANSDUCERS, TAKING NO EXCEPTION TO THE SPECIFICATIONS, AND THAT YOUR COMPANY HAS FURNISHED TWO CLEANERS WITH THIS TYPE OF TRANSDUCERS UNDER CONTRACT AF 42/600/ 20786. UNDER THE CIRCUMSTANCES, WE FIND NO BASIS FOR CONCLUDING THAT THE SPECIFICATIONS WERE DRAWN WITH THE VIEW OF LIMITING THE BIDDING TO CONCERNS OFFERING A BENDIX PRODUCT.

THE QUESTION OF WHAT TYPE OF TRANSDUCER WOULD BEST FULFILL THE NEEDS OF THE PROCURING ACTIVITY WAS, AS INDICATED ABOVE, A MATTER FOR THE AIR FORCE TO DETERMINE. WHERE IT APPEARS, AS IT DOES HERE, THAT THERE MAY BE A BONA FIDE DIFFERENCE OF EXPERT TECHNICAL OPINION AS TO THE RELATIVE MERTIS OF ALTERNATIVE METHODS OF PERFORMING NECESSARY TASKS, OR ALTERNATIVE TYPES OF EQUIPMENT, WE WILL NOT ATTEMPT TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE PROCURING OFFICIALS OR DISREGARD THEIR DETERMINATIONS IN THE ABSENCE OF CLEAR INDICATION OF BAD FAITH OR ARBITRARY ACTION. IN THIS INSTANCE WE FIND NO SUCH INDICATION.

FOR THE FOREGOING REASONS, YOUR PROTEST IN CONNECTION WITH INVITATION NO. 42-600-64-58 MUST BE DENIED.

WITH RESPECT TO YOUR PROTEST IN CONNECTION WITH INVITATION NO. A1-19 035- 64-28/MED), WHICH CALLED FOR BIDS, TO BE OPENED NOVEMBER 29, 1963, FOR FURNISHING ONE "6530-D00-0010 WASHER, ULTRASONIC CLEANER, SONICLEAN, * * * DEXTREX CHEMICAL INDUSTRIES, INC., MODEL L-501-B OR EQUAL," THE ACTING DIRECTOR OF PROCUREMENT, OFFICE OF THE ASSISTANT SECRETARY OF THE ARMY, ADVISED US BY LETTER OF FEBRUARY 17, 1964, THAT THE SUBJECT INVITATION HAD BEEN CANCELLED AND THE PROCUREMENT READVERTISED. THAT OFFICIAL HAS ALSO FURNISHED US WITH THE FOLLOWING REPORT DATED FEBRUARY 3, 1964, IN RESPONSE TO OUR LETTER OF JANUARY 17, 1964, WHICH REQUESTED A REPORT ON YOUR PROTEST:

"1. FT DEVENS INVITATION FOR BID NUMBER A1-19-035-64-28 (MED) WAS ISSUED ON 15 NOVEMBER 1963 AND MAILED TO 20 PROSPECTIVE BIDDERS. 10 BIDS WERE RECEIVED AND OPENED ON 29 NOVEMBER 1963. SINCE THIS ITEM WAS OF A TECHNICAL NATURE, THE MEDICAL TECHNICIANS AT THE HOSPITAL, FT. DEVENS, WERE REQUESTED TO ADVISE THE CONTRACTING OFFICER WHICH BIDDERS DID OR DID NOT MEET THE SPECIFICATIONS.

"2. ON 18 DECEMBER LETTERS WERE MAILED TO THOSE BIDDERS WHOSE BID DID NOT MEET THE SPECIFICATION. NO AWARD WAS MADE AT THAT TIME SINCE THE MEDICAL TECHNICIANS REQUIRED FURTHER STUDY TO DETERMINE WHICH OF THE BIDS RECEIVED WERE NEARER TO THE SPECIFIED REQUIREMENTS. ON 30 DECEMBER 1963, AND ON 2 JANUARY 1964, THE CONTRACTING OFFICER RECEIVED LETTERS OF PROTEST FROM ULTRASONIC INDUSTRIES, INC.

"3. AT THAT TIME A DECISION WAS MADE TO REVISE AND AUGMENT THE SPECIFICATIONS, DELETING ANY REFERENCE TO A BRAND NAME "OR EQUAL.' ON 16 JANUARY 1964, ALL BIDDERS WERE NOTIFIED OF THE CANCELLATION, AND THE REASON FOR SUCH ACTION. A NEW BID NUMBER A1-19-035-64-41 (MED) WAS ISSUED ON 3 FEBRUARY 1964, OPENING ON 17 FEBRUARY 1964. A NEW BID WAS MAILED TO ULTRASONIC INDUSTRIES, INC., PLAINVIEW, LI., NEW YORK.'

IN YOUR LETTER OF MARCH 12, 1964, TO THE HONORABLE STEVEN B. DEROUNIAN, WITH REFERENCE TO THE PROTESTS WHICH HAVE BEEN UNDER CONSIDERATION HERE (WHICH WAS FORWARDED TO US BY THE CONGRESSMAN'S LETTER OF MARCH 18), YOU STATE THAT THE SPECIFICATIONS IN THE NEW INVITATION (A1-19-035-64-41 (MED) ( WERE DEFECTIVE IN THAT CERTAIN OF THE TECHNOLOGICAL FEATURES SPECIFIED FOR THE CLEANER INVOLVED WERE IRRECONCILABLE WITH OTHER REQUIRED FEATURES, SO AS TO MAKE IT IMPOSSIBLE FOR A BIDDER TO FURNISH A PRODUCT CONFORMING TO THE SPECIFICATIONS.

IF YOU DESIRE TO PROTEST THE AWARD WHICH YOU STATE HAS BEEN MADE UNDER INVITATION A1-19-035-64-41 (MED) FOR THE REASONS INDICATED IN YOUR LETTER, AND WILL SO ADVISE US, FURNISHING SUCH DATA AND INFORMATION AS YOU HAVE AVAILABLE IN SUPPORT OF YOUR CONTENTIONS, WE SHALL BE GLAD TO CONSIDER YOUR PROTEST.