B-156074, APR. 6, 1965

B-156074, APR. 6, 1965

TO U.S. NUCLEAR CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAMS DATED FEBRUARY 5 AND 9, AND LETTER OF FEBRUARY 10, 1965, PROTESTING AWARD OF A CONTRACT TO ANY OTHER CONCERN UNDER INVITATION FOR BIDS NO. ARS-125-B-65, ISSUED BY THE DEPARTMENT OF AGRICULTURE, AGRICULTURAL RESEARCH SERVICE.

BIDS WERE REQUESTED FOR FURNISHING AND INSTALLING FIVE COBALT-60 GAMMA IRRADIATORS FOR DELIVERY TO FIVE DIFFERENT LOCATIONS WITHIN THE UNITED STATES. FOUR BIDS WERE RECEIVED, THE LOWEST BEING THAT OF AMERICAN NUCLEAR CORPORATION IN THE LUMP-SUM AMOUNT OF $30,184.08 FOR ALL FIVE UNITS, LESS 1/2 OF 1 PERCENT-10 DAYS. YOURS WAS THE HIGHEST BID, IN THE AMOUNT OF $69,950, AND TWO OTHER BIDS WERE RECEIVED IN THE AMOUNTS OF $60,836, LESS 1 PERCENT-20 DAYS, AND $65,800. SINCE THE BID OF AMERICAN NUCLEAR WAS CONSIDERABLY LOWER THAN THE OTHER BIDS RECEIVED, THE CONTRACTING OFFICER REQUESTED THE LOW BIDDER TO VERIFY ITS BID. RESPONSE, AMERICAN NUCLEAR ADVISED THAT NO MISTAKES HAD BEEN FOUND AND THAT IT DID NOT WISH TO CHANGE ITS BID.

YOUR PROTEST AGAINST A PROPOSED AWARD TO AMERICAN NUCLEAR IS STATED TO BE ON THE FOLLOWING GROUNDS:

"/1) AMERICAN NUCLEAR CORPORATION FAILED TO SUBMIT A RESPONSIVE BID CONFORMING IN ALL MATERIAL RESPECTS TO BID INVITATION NO. ARS-125-B-65 IN THAT NO DETAILED SPECIFICATIONS OR DRAWINGS ACCOMPANIED THE AMERICAN NUCLEAR CORPORATION BID.

"/2) THE AMERICAN NUCLEAR CORPORATION BID SHOULD HAVE BEEN REJECTED SINCE AMERICAN NUCLEAR CORPORATION HAS NO PRODUCTION MODEL COBALT-60 GAMMA IRRADIATORS OF THIS GENERAL TYPE.

"/3) REGISTRATION OF AMERICAN NUCLEAR CORPORATION UNITS WITH THE U.S. ATOMIC ENERGY COMMISSION AND APPROVAL OF SUCH UNITS FOR USE HAS NOT BEEN ACCOMPLISHED, THEREBY RAISING SUBSTANTIAL DOUBT AS TO THE BIDDER'S ABILITY TO PERFORM WITHIN THE DELIVERY SCHEDULE INCLUDED IN THE AMERICAN NUCLEAR CORPORATION BID. (REFERENCE COPY OF U.S. NUCLEAR CORP. LETTER DATED JANUARY 25, 1965, ATTACHMENT 1 TO THIS PROTEST.)

"/4) AWARD OF THE CONTEMPLATED CONTRACT TO AMERICAN NUCLEAR CORPORATION WILL BE PREJUDICIAL TO THE RIGHTS OF U.S. NUCLEAR CORP. AND DETRIMENTAL TO THE PUBLIC INTEREST IN THAT THE BASIC PRINCIPLES OF PROCUREMENT BY FORMAL ADVERTISING WOULD BE VIOLATED.'

SUBPART 1-2.202-5 OF TITLE 41, CODE OF FEDERAL REGULATIONS, ENTITLED "DESCRIPTIVE LITERATURE," READS IN PERTINENT PART AS FOLLOWS:

"/A) DEFINITION. AS USED IN THIS SECTION 1-2.202-5, THE TERM "DESCRIPTIVE LITERATURE" MEANS INFORMATION, SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS AND BROCHURES, WHICH SHOW THE CHARACTERISTICS OR CONSTRUCTION OF A PRODUCT OR EXPLAIN ITS OPERATION, FURNISHED BY A BIDDER AS A PART OF HIS BID TO DESCRIBE THE PRODUCTS OFFERED IN HIS BID. THE TERM INCLUDES ONLY INFORMATION REQUIRED TO DETERMINE ACCEPTABILITY OF THE PRODUCT, AND EXCLUDES OTHER INFORMATION SUCH AS THAT FURNISHED IN CONNECTION WITH THE QUALIFICATIONS OF A BIDDER OR FOR USE IN OPERATING OR MAINTAINING EQUIPMENT.

"/B) POLICY. BIDDERS SHALL NOT BE REQUIRED TO FURNISH DESCRIPTIVE LITERATURE AS A PART OF THEIR BIDS UNLESS THE CONTRACTING AGENCY DEEMS THAT SUCH LITERATURE IS NEEDED TO ENABLE IT TO DETERMINE BEFORE AWARD WHETHER THE PRODUCTS OFFERED MEET THE SPECIFICATION REQUIREMENTS OF THE INVITATION FOR BIDS AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH. IT MAY BE APPROPRIATE TO REQUIRE DESCRIPTIVE LITERATURE IN THE PROCUREMENT OF HIGHLY TECHNICAL OR SPECIALIZED EQUIPMENT, OR WHERE CONSIDERATIONS SUCH AS DESIGN OR STYLE ARE IMPORTANT IN DETERMINING ACCEPTABILITY OF THE PRODUCT.

"/C) JUSTIFICATION. THE REASONS WHY ACCEPTABLE PRODUCTS CANNOT BE PROCURED WITHOUT THE SUBMISSION OF DESCRIPTIVE LITERATURE SHALL BE SET FORTH AND FILED IN THE CASE FILE, EXCEPT WHERE SUCH SUBMISSION IS REQUIRED BY THE FORMAL SPECIFICATIONS (FEDERAL, MILITARY, DEPARTMENTAL, ETC.) APPLICABLE TO THE PROCUREMENT.

"/D) REQUIREMENTS OF INVITATION FOR BIDS. WHEN DESCRIPTIVE LITERATURE IS REQUIRED, THE INVITATION FOR BIDS SHALL CLEARLY STATE WHAT DESCRIPTIVE LITERATURE IS TO BE FURNISHED, THE PURPOSE FOR WHICH IT IS REQUIRED, THE EXTENT TO WHICH IT WILL BE CONSIDERED IN THE EVALUATION OF BIDS, AND THE RULES WHICH WILL APPLY IF A BIDDER FAILS TO FURNISH IT BEFORE BID OPENING OR IF THE LITERATURE FURNISHED DOES NOT COMPLY WITH THE REQUIREMENTS OF THE INVITATION FOR BIDS. WHERE DESCRIPTIVE LITERATURE IS NOT CONSIDERED NECESSARY AND A WAIVER OF THE LITERATURE REQUIREMENTS OF SPECIFICATION HAS BEEN AUTHORIZED, A STATEMENT SHALL BE INCLUDED IN THE INVITATION FOR BIDS THAT NOTWITHSTANDING THE REQUIREMENTS OF THE SPECIFICATIONS, DESCRIPTIVE LITERATURE WILL NOT BE REQUIRED.

"/1) EXCEPT AS PROVIDED IN (2) BELOW, IF BIDDERS ARE TO FURNISH DESCRIPTIVE LITERATURE AS A PART OF THEIR BIDS, A PROVISION SUBSTANTIALLY AS FOLLOWS (MODIFIED, IF APPROPRIATE, IN ACCORDANCE WITH (E) (1) BELOW) SHALL BE INCLUDED IN THE INVITATION FOR BIDS:

REQUIREMENT FOR DESCRIPTIVE LITERATURE

"/A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO (* ).

"/B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT IF THE MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE, IT MAY BE CONSIDERED UNDER THE PROVISIONS FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.

"* CONTRACTING OFFICER SHALL INSERT SIGNIFICANT ELEMENTS SUCH AS DESIGN, MATERIALS, COMPONENTS, OR PERFORMANCE CHARACTERISTICS; OR METHODS OF MANUFACTURE, CONSTRUCTION, ASSEMBLY, OR OPERATION, AS APPROPRIATE.'

THE REFERENCE IN THE INVITATION TO DESCRIPTIVE MATERIAL WAS INCLUDED AS A SUBPARAGRAPH UNDER PARAGRAPH 10 OF THE SPECIFICATIONS, WHICH COVERS "DEMONSTRATION" OF THE FINISHED PRODUCT. THIS SUBPARAGRAPH PROVIDES THAT "BIDDERS SHALL SUBMIT WITH BIDS SUFFICIENT DESCRIPTIVE MATERIAL, SUCH AS PLAN DRAWINGS, LITERATURE, OR ILLUSTRATIONS, WHICH MAY BE REQUIRED TO GIVE A COMPREHENSIVE DESCRIPTION OF THE IRRADIATORS OFFERED.' THERE WAS NO FURTHER REFERENCE TO JUSTIFICATION, EVALUATION, OR REJECTION FOR FAILURE TO INCLUDE SUCH MATERIAL, AS CONTEMPLATED BY THE REGULATION QUOTED ABOVE, AND IT IS AT BEST DOUBTFUL WHETHER UNDER THE LANGUAGE USED REJECTION WOULD BE JUSTIFIED UNLESS THE INVITATION SPECIFICATIONS WERE WHOLLY INADEQUATE OR THE BID ON ITS FACE SHOWED THAT THE BIDDER DID NOT OFFER TO MEET THEM. SINCE AMERICAN NUCLEAR BID ON IRRADIATORS TO BE FABRICATED IN ACCORDANCE WITH GOVERNMENT SPECIFICATIONS, WITHOUT EXCEPTION, AND THE SPECIFICATIONS APPEAR TO BE COMPREHENSIVE AS TO ALL PERFORMANCE REQUIREMENTS, AS WELL AS TO MAJOR DESIGN FEATURES, THE PROCURING AGENCY STATES THAT NO FURTHER INFORMATION WAS "REQUIRED TO GIVE A COMPREHENSIVE DESCRIPTION OF THE IRRADIATORS OFFERED," IN THE ABSENCE OF SOME DEVIATION IN DETAIL. THESE CIRCUMSTANCES, IT SEEMS THAT ANY ADDITIONAL INFORMATION WHICH MIGHT BE REQUIRED WOULD BE PERTINENT ONLY TO DETERMINATION OF THE BIDDER'S COMPETENCE AND CAPABILITY TO PERFORM, AND WOULD THEREFORE NOT AFFECT THE RESPONSIVENESS OF THE BID.

THE REQUEST FOR IRRADIATORS "OF THE LATEST MODEL IN CURRENT PRODUCTION" IS SAID TO HAVE BEEN INTENDED MERELY TO PRECLUDE THE FURNISHING OF UNITS WITH ANY OBSOLETE FEATURES. THERE WAS NO REQUIREMENT THAT THE ITEM BE A STANDARD COMMERCIAL MODEL IN CURRENT PRODUCTION AND CAPABLE OF BEING SUPPLIED "OFF THE SHELF," OR THAT THE BID BE REJECTED IF A BIDDER DID NOT REGULARLY STOCK A UNIT WHICH MET THE SPECIFICATIONS OR WHICH COULD BE EASILY CHANGED TO MEET SAME. FURTHERMORE, IT IS REPORTED BY THE DEPARTMENT OF AGRICULTURE THAT WHILE THE ITEMS IN QUESTION ARE NOT OF A KIND GENERALLY MADE AND KEPT IN STOCK TO FILL ORDERS, THEY ARE NOT OF A COMPLICATED NATURE AND THAT THE LOW BIDDER HAS MANUFACTURED AND HAS DELIVERED MORE COMPLEX UNITS TO THE EDGEWOOD ARSENAL, EDGEWOOD, MARYLAND, AND TO THE ATOMIC ENERGY COMMISSION, SAN JUAN, PUERTO RICO.

WITH REFERENCE TO YOUR THIRD CONTENTION, THE ADMINISTRATIVE REPORT STATES THAT "THERE IS NO REGULATORY REQUIREMENT THAT MANUFACTURERS REGISTER THEIR UNITS WITH THE U.S. ATOMIC ENERGY COMMISSION. INSTEAD, WHEN AN ORDER IS PLACED, THE PURCHASER NEEDS TO BE APPROVED FOR RECEIPT OF THE UNITS. THIS INSTANCE, THE U.S. DEPARTMENT OF AGRICULTURE RADIOLOGICAL SAFETY COMMITTEE HOLDS A LICENSE, AND APPROVAL FOR RECEIPT OF THE UNITS IS THE RESPONSIBILITY OF THAT COMMITTEE.' IT IS FURTHER REPORTED THAT INFORMATION SECURED FROM THE ATOMIC ENERGY COMMISSION VERIFIES THE FACT THAT AMERICAN NUCLEAR HAS AMPLE COBALT AND PLANT CAPACITY, AND IS THE HOLDER OF AN AEC LICENSE. THE DELIVER SCHEDULE OF AMERICAN NUCLEAR IS ONLY SLIGHTLY LONGER THAN YOUR OWN AND IS SATISFACTORY TO THE PROCURING AGENCY. IMPARTIAL INQUIRIES BY THE AGRICULTURAL RESEARCH SERVICE HAVE PRODUCED NOTHING BUT EXCELLENT RECOMMENDATIONS FOR AMERICAN NUCLEAR AND THE CONTRACTING OFFICER IS CONVINCED THAT THE LOW BIDDER CAN PERFORM IN A CAPABLE MANNER FAVORABLE TO THE GOVERNMENT.

IT IS NOT CLEAR HOW AN AWARD TO AMERICAN NUCLEAR WOULD BE PREJUDICIAL TO YOUR RIGHTS OR WHY YOU TAKE THE POSITION THAT A BALANCING OF PROCUREMENT FACTORS WILL SUPPORT AN AWARD ONLY TO YOUR CORPORATION. YOURS WAS THE HIGH BID AND CONSIDERATION PRESUMABLY WOULD FIRST BE GIVEN TO THE TWO INTERMEDIATE BIDS, AS TO WHICH YOU HAVE MADE NO SPECIFIC PROTEST. IN ANY EVENT, FOR THE REASONS STATED ABOVE WE CONCLUDE THAT CONSIDERATION OF THE BID OF AMERICAN NUCLEAR CORPORATION NOT ONLY WOULD NOT BE DETRIMENTAL TO THE PUBLIC INTEREST AS A VIOLATION OF THE BASIC PRINCIPLES OF PROCUREMENT BY FORMAL ADVERTISING, BUT IS REQUIRED BY VIRTUE OF ITS COMPLIANCE IN ALL MATERIAL RESPECTS WITH THE INVITATION FOR BIDS, AS CONTEMPLATED BY 41 CFR 1-2.301/A). YOUR PROTEST MUST ..END :