B-156365, JUN. 1, 1965

B-156365, JUN. 1, 1965

TO WOLFE, HUBBARD, VOIT AND OSANN:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 20 AND LETTER OF MARCH 25, 1965, ON BEHALF OF PACKARD INSTRUMENT COMPANY, INCORPORATED, PROTESTING THE AWARD MADE TO NUCLEAR-CHICAGO CORPORATION UNDER INVITATION FOR BIDS NO. 75-N-ARS-65, ISSUED BY THE AGRICULTURAL RESEARCH SERVICE, MINNEAPOLIS, MINNESOTA.

THE INVITATION, ISSUED ON FEBRUARY 17, 1965, REQUESTED BIDS TO "FURNISH, INSTALL AND DEMONSTRATE PROPER OPERATION OF AUTOMATIC LIQUID SCINTILLATION SPECTROMETER, REFRIGERATED, THREE CHANNEL, WITH PRINTING CALCULATOR FOR OPERATION ON 115 VOLTS, 60 CYCLE, SINGLE PHASE, ALTERNATING CURRENT, IN ACCORDANCE WITH THE FOLLOWING SERVICE REQUIREMENTS AND SPECIFICATIONS.' ONE OF THE ,SPECIFICATIONS" REQUIREMENTS WAS THE FOLLOWING PROVISION:

"THREE SEPARATE CHANNELS SHALL BE PROVIDED, COMPLETE WITH PRECISION ATTENUATION, LINEAR AMPLIFICATION, DUAL DISCRIMINATOR ANALYSIS, AND SCALERS. ALL CIRCUITRY SHALL BE TRANSISTORIZED.'

THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE BID OF NUCLEAR-CHICAGO CORPORATION IN THE AMOUNT OF $13,445 WAS LOW. THE COMPANY STATED IN ITS BID AND AN ACCOMPANYING LETTER THAT THE MODEL OFFERED, MODEL 725-S, SK4, 821240, MEETS OR EXCEEDS THE SPECIFICATIONS IN ALL RESPECTS, INCLUDING "THREE SEPARATE CHANNELS. (FULLY TRANSISTORIZED)" PACKARD INSTRUMENT COMPANY WAS SECOND LOW BIDDER AT $13,600 AND OFFERED ITS MODEL 3324. THE THIRD BID WAS SUBMITTED BY ANS, INCORPORATED, IN THE AMOUNT OF $13,800, LESS ONE PERCENT 10 DAYS.

IT WAS ADMINISTRATIVELY DETERMINED THAT THE LOW BID OF NUCLEAR CHICAGO CORPORATION COMPLIED WITH THE REQUIREMENTS OF THE INVITATION AND, THEREFORE, THE AWARD WAS MADE TO NUCLEAR-CHICAGO CORPORATION ON MARCH 19, 1965.

YOU CONTEND THAT THE AWARD TO NUCLEAR-CHICAGO CORPORATION IS UNJUSTIFIED BECAUSE THE EQUIPMENT OFFERED DOES NOT MEET OR SATISFY THE PLAIN AND UNEQUIVOCAL REQUIREMENTS OF THE SPECIFICATIONS. IN THIS CONNECTION IT IS STATED IN YOUR LETTER, IN PART, AS FOLLOWS:

"IN PARTICULAR, THE SPECIFICATIONS DEMAND OF THE SPECTROMETER WHICH IS TO BE FURNISHED:

"THREE SEPARATE CHANNELS SHALL BE PROVIDED, COMPLETE WITH PRECISION ATTENUATION, LINEAR AMPLIFICATION, DUAL DISCRIMINATOR ANALYSIS, AND SCALERS.'

"THE EQUIPMENT OFFERED BY THE PACKARD BID FULLY AND EXACTLY CONFORMS TO THE SPECIFICATIONS, INCLUDING THAT PORTION QUOTED ABOVE. THE PACKARD SPECTROMETER MAY BE DIAGRAMED AS FOLLOWS (OMITTING ANY DIAGRAMMING OF COINCIDENCE APPARATUS FOR THE SAKE OF SIMPLICITY): * * *.

"IT IS PLAIN THAT THIS PACKARD EQUIPMENT HAS THREE COMPLETE AND SEPARATE CHANNELS, EACH HAVING A PRECISION ATTENUATOR, A LINEAR AMPLIFIER, AN UPPER DISCRIMINATOR, A LOWER DISCRIMINATOR, AND A SCALER. THUS, THERE ARE THREE PRECISION ATTENUATORS, THREE LINEAR AMPLIFIERS, SIX DISCRIMINATORS, AND THREE SCALERS. THIS IS WHAT THE SPECIFICATION LANGUAGE, QUOTED ABOVE, REQUIRES. THE PACKARD EQUIPMENT HAS THREE "SEPARATE CHANNELS" EACH OF WHICH IS "COMPLETE" WITH (1) "PRECISION ATTENTUATION" (PROVIDED BY THREE RESPECTIVE ATTENUATORS), (2) "LINEAR AMPLIFICATION" (PROVIDED BY THREE RESPECTIVE LINEAR AMPLIFIERS), (3) "DUAL DISCRIMINATOR ANALYSIS" (PROVIDED BY THREE DUAL SETS OF UPPER AND LOWER DISCRIMINATORS), AND (4) "SCALERS" (PROVIDED BY THREE RESPECTIVE SCALERS).

"BY CONTRAST, THE NUCLEAR-CHICAGO EQUIPMENT OFFERED BY ITS BID MAY BE DIAGRAMED AS FOLLOWS (OMITTING ANY SHOWING OF COINCIDENCE APPARATUS FOR THE SAKE OF SIMPLICITY): * * *.

"THE NUCLEAR-CHICAGO EQUIPMENT HAS THREE SCALERS, AND IT THUS CAN RECORD DATA OR COUNTS IN THREE PORTIONS OR "WINDOWS" OF A PULSE HEIGHT SPECTRUM, BUT ONLY IF TWO OF THE THREE ARE ADJACENT ONE ANOTHER. HOWEVER, THE FIRST TWO SCALERS RECEIVE PULSES TRANSMITTED IN COMMON THROUGH THE SAME PRECISION ATTENUATOR, THE SAME LINEAR AMPLIFIER, AND A COMMON MIDDLE DISCRIMINATOR, SO THAT THEY ARE NOT IN SEPARATE CHANNELS. THE NUCLEAR- CHICAGO EQUIPMENT HAS ONE PRECISION ATTENUATOR, TWO LINEAR AMPLIFIERS, FIVE DISCRIMINATORS, AND THREE SCALERS.

"IT IS INESCAPABLE THAT THE NUCLEAR-CHICAGO EQUIPMENT DOES NOT SATISFY THE ABOVE-QUOTED SPECIFICATION REQUIREMENT BECAUSE IT DOES NOT HAVE THREE "SEPARATE CHANNELS.' IT DOES NOT HAVE SUCH SEPARATE CHANNELS "COMPLETE" WITH (1) "PRECISION ATTENUATION" (BECAUSE ONLY ONE ATTENUATOR IS PROVIDED); IT DOES NOT HAVE (2) "LINEAR AMPLIFICATION" IN THREE SEPARATE CHANNELS (BECAUSE ONLY TWO LINEAR AMPLIFIERS ARE EMPLOYED); AND IT DOES NOT HAVE (3) "DUAL DISCRIMINATOR ANALYSIS" IN THREE SEPARATE CHANNELS (BECAUSE IT DOES NOT EMPLOY THREE PAIRS OR SIX DISCRIMINATORS, BUT RATHER ONLY FIVE DISCRIMINATORS).'

WITH RESPECT TO YOUR CONTENTION THAT THE SPECIFICATIONS REQUIRE THE EQUIPMENT TO HAVE "THREE COMPLETE AND SEPARATE CHANNELS, EACH HAVING, ETC.' IT IS ADMINISTRATIVELY REPORTED AS FOLLOWS:

"SPECIFICALLY, THE PROTESTOR CONTENDS THAT THE LOW BID DOES NOT SATISFY THE SPECIFIED REQUIREMENTS THAT "THREE SEPARATE CHANNELS SHALL BE PROVIDED, COMPLETE WITH PRECISION ATTENUATION, LINEAR AMPLIFICATION, DUAL DISCRIMINATOR ANALYSIS, AND SEALERS.' WE DISPUTE THE PROTESTOR'S CONTENTION AND HIS REASONS THEREFOR. THE FOLLOWING IS A CLARIFICATION OF THE SPECIFICATIONS AS WRITTEN BY THIS AGENCY:

"WHAT HAS BEEN ATTEMPTED IN THE SPECIFICATIONS ACCOMPANYING THE INVITATION IS A GENERAL DESCRIPTION OF THE LIQUID SCINTILLATION SYSTEM OUTLINING THE REQUIREMENTS OF THE SYSTEM TO MEET THE USER'S NEEDS. DETAILED SPECIFICATIONS WRITTEN AROUND ONE INSTRUMENT HAVE NOT BEEN ATTEMPTED AND THE "OPEN" SPECIFICATIONS UNDER WHICH THIS INVITATION WAS OFFERED ARE IN ACCORDANCE WITH OUR NORMAL METHOD OF OPERATION.

"IN PAGE 2 OF THE LETTER DESCRIBING THE PACKARD INSTRUMENT COMPANY'S PROTEST, THE EMPHASIS WHICH HAS BEEN ADDED TO THE PARAGRAPH AND THE SENTENCE IMMEDIATELY BEFORE THAT PARAGRAPH ARE MISLEADING SINCE THIS WAS NOT THE INTENT OF THE SPECIFICATIONS. A WRONG CONNOTATION IS IMPLIED IN THE WORDING OF "DEMAND OF THE SPECTROMETER" AND IS NOT IN KEEPING WITH THE GENERAL DESCRIPTION CONTAINED IN THE REST OF THE SPECIFICATIONS. SINCE BOTH OF THE COMPANIES HAVE BEEN OFFERING THE SAME UNIT FOR THE PAST TWO OR THREE YEARS (THE PACKARD MODEL 3000 SERIES AND THE NUCLEAR-CHICAGO MODEL 725), WE ARE SURPRISED THAT A PROTEST ON SUCH AN INSIGNIFICANT PORTION OF THE TOTAL SYSTEM WOULD BE LODGED AT THIS POINT IN TIME SINCE MANY AWARDS HAVE BEEN MADE TO BOTH COMPANIES INVOLVED.

"IN A DETAILED READING OF THE PARAGRAPH IN QUESTION AND DESCRIBING IT AS INTENDED, WE WILL START AT THE BEGINNING AND WITH THE WORDS:

" "THREE SEPARATE CHANNELS SHALL BE PROVIDED,"---

WHAT WAS INTENDED HERE IS THAT THE UNIT SHOULD HAVE THREE SEPARATE ROUTING CHANNELS AND BE ABLE TO PRINT OUT INFORMATION FROM THESE THREE CHANNELS. THE INTENT OF THE USER IS THAT HE (1) BE ABLE TO COUNT THREE SEPARATE ISOTOPES, (2) DO DUAL LABELLED ISOTOPE WORK WITH A THIRD CHANNEL FOR QUENCH CORRECTION, (3) DO INTERMIXED SAMPLE COUNTING WITH CHANNELS RATIO QUENCH CORRECTION CAPABILITY, AND (4) DO EXTERNAL STANDARDIZATION WITH QUENCH CORRECTION CAPABILITY. TO DO THIS NECESSITATES HAVING THREE SEPARATE CHANNELS RATHER THAN TWO SEPARATE CHANNELS.

IF WE BECOME HIGHLY SPECIFIC HERE, IT SHOULD BE POINTED OUT THAT THE PACKARD INSTRUMENT DOES NOT HAVE THREE SEPARATE CHANNELS FOR COLLECTING THREE TRULY SEPARATE QUANTITIES OF INFORMATION. FOR INSTANCE: (1) THEY DO NOT HAVE SEPARATE PRESET COUNT CONTROLS, ONE FOR EACH CHANNEL: (2) THEY DO NOT HAVE THREE SEPARATE BACKGROUND SUBTRACT CHANNELS FOR PRESET COUNT OR TIME COUNT; (3) THEY DO NOT HAVE THE ABILITY TO LOOK AT THREE SEPARATE SCALERS WITHOUT CHANGING CABLES, WHEREBY A FRONT PANEL SWITCH CAPABILITY IS DESIRABLE; (4) THEY DO NOT HAVE SEPARATE CHANNEL CONTROL FOR A LOW SAMPLE COUNT OVERRIDE; AND, (5) THEY DO NOT HAVE THREE SEPARATE CHANNELS WHICH CAN COUNT FROM BASE LINE (0.5 VOLTS) TO INFINITY. PERHAPS TO MAKE UP FOR THIS LAST POINT THEY HAVE ADDED SEPARATE GAIN CONTROLS, ONE FOR EACH CHANNEL, WHICH MAY ALSO HAVE SOME OTHER ADVANTAGE; HOWEVER, WITHOUT THESE GAIN CONTROLS THE INSTRUMENT IS LIMITED TO LOOKING AT PULSE SIZES BETWEEN DISCRIMINATORS OF 0.5 TO 9.9VOLTS AND 0.5 TO INFINITY. THIS IS AN ADDITIONAL SPECIFICATION TO WHAT THE BID REQUESTED, PERHAPS DESIRABLE, PERHAPS LIMITED, BUT NOT A BID REQUIREMENT. IN SHORT, WE FIND NOTHING THE USER WOULD REQUIRE OR THAT THE BID INTENDED TO REQUEST THAT THE PACKARD INSTRUMENT CAN DO THAT THE NUCLEAR-CHICAGO CORPORATION CANNOT WITH REGARD TO THE THREE SEPARATE CHANNEL CAPABILITY. ON THE OTHER HAND, WE FIND SEVERAL THREE SEPARATE CHANNEL MODES ABOVE, 1, 2, 3, 4, 5, THAT THE NUCLEAR-CHICAGO UNIT DOES PROVIDE THAT THE PACKARD INSTRUMENT DOES NOT. HOWEVER, WE HASTEN TO ADD THAT THIS WAS NOT REQUIRED OF THE SPECIFICATIONS AND THEY WERE MEANT TO BE "OPEN.'

" "COMPLETE WITH PRECISION ATTENUATION"---

OF COURSE, ONCE AGAIN THE WORD SYSTEM IS TAKEN FOR GRANTED AND YOU SHOULD NOTICE THAT WE DO NOT ASK FOR THREE PRECISION ATTENUATORS BUT "PRECISION ATTENUATION" WITH THE ACCENT ON PRECISION RATHER THAN COURSE ADJUSTMENT AND ATTENUATION RATHER THAN GAIN MODE.

" "LINEAR AMPLIFICATION"---

WE DID NOT REQUEST THREE LINEAR AMPLIFIERS BUT WE SPECIFY A LINEAR RATHER THAN A LOGARITHMIC MODE OF AMPLIFICATION.

" "DUAL DISCRIMINATOR ANALYSIS"---

WE ARE REQUESTING THE ANALYSIS ABILITY TO SEE INFORMATION BETWEEN TWO (DUAL) DISCRIMINATORS THEREBY FORMING A CHANNEL. WE DO NOT SPECIFY THE NUMBER OF DISCRIMINATORS REQUIRED, NOR THE NUMBER REQUIRED TO FORM EACH CHANNEL AS LONG AS THERE IS A DISCRIMINATOR ON EITHER SIDE OF THE CHANNEL, HENCE DUAL. WE UNDERSTAND THAT SOME COMPANIES USE FIVE AND OTHER COMPANIES USE SIX DISCRIMINATORS TO ACCOMPLISH THE THREE CHANNEL MODE OF OPERATION. THIS IS QUITE UNIMPORTANT TO US AS LONG AS THEY PRINT OUT THREE SEPARATE SETS OF INFORMATION FROM THREE SEPARATE CHANNELS.

" "AND SCALERS"---

HERE NOTICE IS TAKEN THAT THE PLURAL IS USED FOR THE SECOND TIME IN THE PARAGRAPH THEREBY INDICATING MORE THAN ONE SCALER, WHICH MOST MANUFACTURERS WOULD DEDUCE TO MEAN THREE, BECAUSE OF THREE CHANNELS. ALL BIDS THAT WERE RECEIVED INDICATED THREE SCALERS THEREBY SUGGESTING TO US THAT THIS IS THE ACCEPTED NUMBER REQUIRED FOR THREE STORAGE CHANNELS OF INFORMATION.

"WE HAVE REVIEWED THE SPECIFICATIONS CAREFULLY AND HAVE DETAILED THE CONTENTS OF THE PARAGRAPH IN QUESTION. WE ARE COMPLETELY SATISFIED WITH THE SPECIFICATIONS AS WRITTEN AND CAN FIND NO MISLEADING INFORMATION AND NO CAUSE FOR UPHOLDING A PROTEST BASED UPON THE INTERPRETATION OF A PARAGRAPH SUPPLIED WITH A LEADING SENTENCE CARRYING A WRONG CONNOTATION OF THE SYSTEM ADVERTISED AND A PARAGRAPH THAT HAD UNDERLINED WORDS CREATING EMPHASIS UPON POINTS THAT WERE NOT THE INTENT OF THE INVITATION.'

THE ONE PARAGRAPH, THREE-LINE PROVISION, IN QUESTION IS BUT A PART OF THE TOTAL SPECIFICATIONS FOR THE EQUIPMENT AND IS TO BE READ IN CONJUNCTION WITH THE OTHER REQUIREMENTS FOR THE SYSTEM AS A WHOLE. WE CANNOT AGREE THAT THE PROVISION IN QUESTION MUST BE INTERPRETED AS URGED BY YOU, AND IT DOES NOT SPECIFICALLY SO READ. WHERE A PARTICULAR SYSTEM, BY ITS VERY NATURE REQUIRES THAT EACH OF THE THREE CHANNELS BE "SEPARATE AND COMPLETE," YOUR INTERPRETATION UNDOUBTEDLY WOULD BE VALID. HOWEVER, SUCH APPARENTLY IS NOT THE CASE IN RESPECT TO THE TYPE OF EQUIPMENT HERE INVOLVED AND THE DIFFERENT MANUFACTURERS OF THE PARTICULAR TYPE OF EQUIPMENT USE DIFFERENT APPROACHES TO ACCOMPLISH MORE OF LESS THE SAME RESULTS. THE VARIOUS APPROACHES MAY HAVE CERTAIN ADVANTAGES AND DISADVANTAGES WHEN COMPARED WITH EACH OTHER AND, UNLESS SPECIFIC DESIGN FEATURES ARE SPECIFIED, ANY ONE OF THE MAKES PROBABLY WILL MEET REQUIREMENTS. SEE B-155034, DATED NOVEMBER 11, 1964, AND MARCH 5, 1965. IT IS REPORTED THAT THE SPECIFICATIONS HERE INVOLVED WERE WRITTEN TO PERMIT THE VARIOUS MANUFACTURERS OF THIS TYPE OF EQUIPMENT TO MEET THE NEEDS OF THE AGRICULTURAL RESEARCH SERVICE. APPARENTLY BOTH THE PACKARD MODEL 3000 SERIES AND THE NUCLEAR-CHICAGO MODEL 725 MEETS THEIR NEEDS AS EVIDENCED BY THE AWARDS REPORTED TO HAVE BEEN MADE TO BOTH COMPANIES DURING THE PAST TWO OR THREE YEARS. TO ADOPT YOUR INTERPRETATION OF THE PROVISION AS REQUIRING "THREE COMPLETE AND SEPARATE CHANNELS, EACH HAVING, ETC.' WHICH IS REPORTED NOT TO HAVE BEEN INTENDED AND WHICH INTERPRETATION WE DO NOT BELIEVE IS REQUIRED, APPARENTLY MIGHT RENDER THE SPECIFICATION RESTRICTIVE TO THE PACKARD SYSTEM WHEN AT LEAST ONE OTHER SYSTEM MEETS THE AGENCY'S REQUIREMENTS AND, IF SO, WOULD RENDER THE INVITATION FOR BIDS INVALID AS BEING CONTRARY TO THE SETTLED RULE THAT SPECIFICATIONS IN AN ADVERTISED PROCUREMENT MUST BE SO DRAWN TO REFLECT THE ACTUAL NEEDS OF THE GOVERNMENT AND TO PERMIT ALL BIDDERS CAPABLE OF MEETING THOSE NEEDS AN EQUAL OPPORTUNITY TO COMPETE.

FOR THE FOREGOING REASONS, WE FIND NO BASIS TO QUESTION THE AWARD MADE TO NUCLEAR-CHICAGO CORPORATION AS BEING THE LOWEST RESPONSIVE BIDDER.