B-154098, AUG. 18, 1964

B-154098, AUG. 18, 1964

TO TELE-SIGNAL CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND CONFIRMING LETTER DATED MAY 5, 1964, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT BY THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON, D.C., TO STELMA, INCORPORATED, UNDER INVITATION FOR BIDS NO. IFB-600-200-64.

THE INVITATION WAS ISSUED ON JANUARY 13, 1964, ORIGINALLY SETUP IN THREE LOTS AND AFTER SIX AMENDMENTS, REQUIRED BY VARIOUS CHANGES, REDUCED TO TWO LOTS ON WHICH AWARD WAS ULTIMATELY MADE. LOT I WAS FOR A QUANTITY OF 104 EACH TELEGRAPH TERMINAL SETS; 48 EACH 16 CHANNEL DIVERSITY, 46 EACH 16 CHANNEL NON-DIVERSITY, AND 10 EACH NON-DIVERSITY 8 NARROW BAND AND 4 WIDE BAND. LOT II WAS ALSO FOR TELEGRAPH TERMINAL SETS; 1 EACH 16 CHANNEL DIVERSITY WITH DOT CYCLE GENERATOR, 1 EACH 16 CHANNEL NON-DIVERSITY WITH DOT CYCLE GENERATOR, AND 1 EACH 32 CHANNEL NON-DIVERSITY WITH DOT CYCLE GENERATOR. THE LOW BID ON LOT I WAS FROM STELMA, INCORPORATED, STAMFORD, CONNECTICUT, AND THE LOW BID ON LOT II WAS FROM YOUR COMPANY. WHEN BIDS WERE OPENED ON MARCH 18, 1964, THE DESCRIPTIVE LITERATURE FURNISHED BY THE BIDDERS WAS EVALUATED BY REPRESENTATIVES OF THE UNITED STATES NAVAL COMMUNICATION SYSTEM HEADQUARTERS, THE BUREAU OF SHIPS AND THE OFFICE OF NAVAL MATERIAL. BASED ON THIS REVIEW IT WAS DETERMINED THAT THE DESCRIPTIVE LITERATURE AS SUBMITTED BY STELMA, INCORPORATED, INDICATED THAT THE OFFERED PRODUCT WOULD NOT PERFORM AS REQUIRED AND IT WAS RECOMMENDED THAT THE BID BE REJECTED AS NONRESPONSIVE BECAUSE THE SCHEMATIC DIAGRAM FOR THE FSK TRANSMITTER WHICH IT HAD SUBMITTED SHOWED THAT THIS TRANSMITTER WOULD NOT WORK IN ACCORDANCE WITH THE PERFORMANCE REQUIREMENTS OF THIS SPECIFICATION WHICH REQUIRES THAT THOSE TRANSMITTERS MUST HAVE TWINNING CAPABILITY. STELMA CONTENDED THAT ITS SCHEMATIC DIAGRAM OF THE FSK TRANSMITTERS WAS NOT INTENDED TO SHOW THAT THE TRANSMITTER HAD TWINNING CAPABILITY. IT CITED THE LANGUAGE OF THE DESCRIPTIVE LITERATURE REQUIREMENTS AS SET FORTH IN AMENDMENT NO. 3 OF THE INVITATION AS FOLLOWS:

"/A) DESCRIPTIVE LITERATURE REQUIRED OF EACH CONTRACTOR SHALL BE LIMITED TO:

"A. SCHEMATIC DIAGRAMS WITH SUFFICIENT DETAIL TO DEMONSTRATE THAT PERFORMANCE REQUIREMENTS OF SPECIFICATION WILL BE MET. SCHEMATIC DIAGRAMS TO BE FURNISHED: (1) FSK TRANSMITTER (2) FSK RECEIVER (3) DUAL DIVERSITY ( COMPARATOR/COMBINER UNIT) (4) TRANSISTOR SWITCH OUTPUT UNIT"

STELMA, INCORPORATED, ON BEING INFORMED THAT ITS BID WAS BEING REJECTED AS NONRESPONSIVE, FILED A PROTEST AND WAS GRANTED A REQUESTED MEETING ON MAY 1, 1964, AT NAVY PURCHASING OFFICE, WITH REPRESENTATIVES OF THAT OFFICE, INCLUDING LEGAL COUNSEL, UNITED STATES NAVAL COMMUNICATION SYSTEM HEADQUARTERS, AND STELMA, INCORPORATED, BEING PRESENT. BASED ON THIS MEETING, IT WAS TECHNICALLY DETERMINED THAT IF THE LEGAL DETERMINATION IN REGARD TO THE DESCRIPTIVE LITERATURE REQUIREMENT WAS THAT BIDDERS WERE TO FURNISH A DIAGRAM LIMITED TO A SINGLE FSK TRANSMITTER, THEN THE DESCRIPTIVE LITERATURE SUBMITTED BY STELMA CLEARLY SHOWED THAT THE EQUIPMENT AS OFFERED WOULD WORK AND WAS ACCEPTABLE. HOWEVER, IF IT WAS DETERMINED THAT THE LITERATURE REQUIRED MUST SHOW THE INTERRELATIONSHIP BETWEEN TRANSMITTERS, THEN THE LITERATURE SUBMITTED BY STELMA SHOWED THAT THE FSK TRANSMITTER WOULD NOT WORK AND THEREFORE ITS BID SHOULD BE REJECTED.

IT WAS LEGALLY DETERMINED THAT BASED ON THE LANGUAGE OF THE INVITATION, AS SET FORTH IN AMENDMENT NO. 3 THERETO, THE DESCRIPTIVE LITERATURE WAS RESTRICTED TO FURNISHING SUFFICIENT DETAIL TO INDICATE THAT ONE FSK TRANSMITTER WOULD WORK AND THAT IT WAS NOT NECESSARY TO SHOW THE INTERRELATIONSHIP OF VARIOUS TRANSMITTERS. THIS DETERMINATION WAS BASED ON THE FACT THAT THE ORIGINAL INVITATION REQUESTED A BROAD COVERAGE FOR DESCRIPTIVE LITERATURE AND THAT THE REQUIREMENT WAS SUBSEQUENTLY REDUCED BY AMENDMENT NO. 3 AND BASED ON THIS LIMITING OF THE REQUIREMENT, FROM AN ENGINEERING STANDPOINT, IT WAS REASONABLE TO ASSUME THAT ALL THAT WAS REQUIRED WAS TO SHOW ONE FSK TRANSMITTER. THUS, THE QUESTION OF RESPONSIVENESS OF STELMA, INCORPORATED, ON WHICH YOUR PROTEST IS BASED, WAS ADMINISTRATIVELY CONSIDERED PRIOR TO AWARD AND WAS AFFIRMATIVELY DETERMINED.

ON THE BASIS OF THE ABOVE LEGAL AND TECHNICAL DETERMINATION THE BID AS SUBMITTED BY STELMA, INCORPORATED, WAS FOUND TO BE RESPONSIVE IN EVERY RESPECT AND AWARD WAS MADE TO THIS CONTRACTOR, THE LOW BIDDER, ON LOT I OF INVITATION FOR BIDS NO. IFB-600-200-64, ON MAY 5, 1964, IN THE AMOUNT OF $758,409. LOT II WAS AWARDED TO YOUR COMPANY IN THE AMOUNT OF $38,976.37, ON MAY 6, 1964. BECAUSE OF THE URGENT NEED FOR THIS EQUIPMENT TO PREVENT THE IMPAIRMENT OF THE OPERATIONAL READINESS OF THE NAVAL COMMUNICATION SYSTEM AND RELATED DEFENSE COMMUNICATION SYSTEMS.

THE DRAFTING OF PROPER SPECIFICATIONS FOR ITEMS TO BE PURCHASED FOR GOVERNMENT USE WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND THE RESPONSIBILITY FOR DETERMINING FACTUALLY WHETHER ARTICLES OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS ARE PRIMARILY FUNCTIONS OF THE ADMINISTRATIVE AGENCIES CONCERNED. 17 COMP. GEN. 554; 21 ID. 1132, 1136. IN THIS CASE THE DESCRIPTIVE LITERATURE WAS NOT REQUIRED TO SHOW THE INTERRELATIONSHIP BETWEEN TRANSMITTERS BUT MIGHT BE LIMITED TO SCHEMATIC DIAGRAMS WITH SUFFICIENT DETAIL TO DEMONSTRATE THAT THE PERFORMANCE REQUIREMENTS OF THE SPECIFICATIONS WILL BE MET. THIS IS INTERPRETED AS NOT NECESSARILY REQUIRING DIAGRAM SHOWING THE ISOLATION NECESSARY FOR TWINNING, WHICH CAPABILITY MIGHT BE PROVIDED BY A COMPONENT SEPARATE FROM THE TRANSMITTER. THUS, IT APPEARS THAT THE SEEMING NONRESPONSIVENESS OF THE LOWEST BID HAD ALREADY BEEN CONSIDERED BY THE PROCUREMENT OFFICIALS PRIOR TO THE AWARD AND THE QUESTION RESOLVED IN FAVOR OF ACCEPTING THE LOWEST RESPONSIBLE AND RESPONSIVE BID WHICH WAS DETERMINED TO BE THAT OF STELMA, INCORPORATED.

WE DO NOT FIND FROM THE RECORD ANY GROUND FOR QUESTIONING THE VALIDITY OF AN AWARD TO THE LOWEST RESPONSIBLE BIDDER OFFERING TO MEET THE SPECIFICATIONS AS WRITTEN. YOUR PROTEST AGAINST AN AWARD UNDER THIS INVITATION IS THEREFORE DENIED.