B-157294, AUG. 17, 1965

B-157294, AUG. 17, 1965

TO SELLERS, CONNER AND CUNEO:

REFERENCE IS MADE TO YOUR LETTER OF JULY 30, 1965, PROTESTING ON BEHALF OF KELTEC INDUSTRIES, INC., AGAINST AWARD OF A CONTRACT BY THE UNITED STATES COAST GUARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. CG-08 -756-1A. THE PROTEST WAS FIRST MADE BY KELTEC IN ITS LETTER OF JUNE 25, 1965, TO THE COMMANDANT OF THE COAST GUARD, WHO REFERRED THE MATTER TO OUR OFFICE BY LETTER DATED JULY 19, 1965, FOR A DECISION PRIOR TO MAKING ANY AWARD.

THE SUBJECT INVITATION CALLED FOR BIDS ON FURNISHING A PROTOTYPE MODEL AND DESIRED QUANTITIES (20, 30, OR 40) OF EACH ITEM OF RADIO BEACON CLOCKS, RADIOBEACON CODERS AND FOG SIGNAL CODERS, ALL IN ACCORDANCE WITH U.S. COAST GUARD PURCHASE DESCRIPTION NO. EEE-30-65, AND RELATED TOOLS, MANUALS, AND DRAWINGS. DESCRIPTIVE DATA CONCERNING THE INSTRUMENTS OFFERED WAS REQUIRED TO BE SUBMITTED WITH THE BIDS. DESIGN DETAILS WERE TO BE FURNISHED BY THE CONTRACTOR WITHIN 60 DAYS AFTER AWARD, WITH DELIVERY OF THE PROTOTYPE MODELS TO BE MADE WITHIN 180 DAYS FROM APPROVAL OF THE DESIGN DETAILS. ASTRODATA, INC., SUBMITTED THE LOWEST BID, WITH R. F. COMMUNICATIONS, INC., AND KELTEC FOLLOWING IN THAT ORDER.

KELTEC HAS PROTESTED AWARD TO EITHER OF THE TWO LOWEST BIDDERS ON THE BASIS THAT THE BIDS OF EACH ARE NONRESPONSIVE TO THE REQUIREMENTS OF THE IFB. WITH RESPECT TO THE ASTRODATA OFFER, IT IS CONTENDED THAT IT IS NONRESPONSIVE BECAUSE THE EQUIPMENT OFFERED DOES NOT COMPLY WITH PARAGRAPHS 3.2.1.3 AND 3.2.8 OF THE APPLICABLE SPECIFICATION. PARAGRAPH 3.2.1.3 OF THE SPECIFICATION PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"IN THE EVENT OF A MAIN POWER FAILURE, OR A REDUCTION IN MAIN POWER SUFFICIENT TO CAUSE AN ERROR IN TIMING GREATER THAN THAT SPECIFIED IN PARAGRAPH 3.2.2.1, THE RADIOBEACON CLOCK SHALL AUTOMATICALLY SHIFT TO A STAND-BY POWER SOURCE * * *.'

IT IS KELTEC'S POSITION THAT IN ORDER FOR THE ASTRODATA EQUIPMENT TO MEET THE ABOVE-QUOTED REQUIREMENT, IN VIEW OF ITS PROPOSED CUT-OUT VOLTAGE OF 50 VOLTS AC, IT "MUST OPERATE WITHOUT INTRODUCING AN ERROR WITH PRIMARY POWER INPUT AS LOW AS 50 V AC" AND THAT THIS IS INCONSISTENT WITH THIS TYPE OF EQUIPMENT. THEREFORE, IT IS YOUR CONTENTION THAT THE ASTRODATA EQUIPMENT WOULD NOT BE ABLE TO MAINTAIN THE TIMING ERROR AS REQUIRED AT REDUCED POWER LEVELS. THE CONTRACTING OFFICER'S DETERMINATION AND FINDINGS, BASED ON HIS CONSULTATION WITH AND ADVICE FROM COGNIZANT TECHNICAL PERSONNEL, CONCERNING THE RESPONSIVENESS OF ASTRODATA'S EQUIPMENT TO THE REDUCED POWER REQUIREMENT IS AS FOLLOWS:

"/A) REGARDING THE SHIFTING TO A STANDBY POWER SOURCE IN THE EVENT OF A LOSS OR REDUCTION IN MAIN POWER SUFFICIENT TO CAUSE AN ERROR IN TIMING GREATER THAN SPECIFIED, ASTRO DATA STATES IN THEIR PROPOSAL THAT INPUT POWER CAN BE ACCEPTED. ASTRO DATA HAS FURTHER INDICATED THAT AUTOMATIC POWER TRANSFER WILL OCCUR WHEN THE INPUT POWER FAILS TO APPROXIMATELY 50 VOLTS AC. THIS STATEMENT OF ASTRO DATA'S CAN ONLY BE ACCEPTED TO SHOW THEIR COMPLIANCE WITH THE PURCHASE DESCRIPTION. THERE IS NO EVIDENCE IN THE ASTRO DATA PROPOSAL WHICH WOULD INDICATE THAT THEY CANNOT REGULATE INPUT POWER DOWN TO 50 VOLTS AC. THEREFORE, TIMING ACCURACY CAN BE MAINTAINED THROUGHOUT THE ENTIRE RANGE OF THE REDUCED POWER LEVEL.'

IN ADDITION, YOU STATE THAT ASTRODATA HAS OBTAINED A $14,000 PRICE ADVANTAGE BY PROPOSING TO USE A SINGLE RELAY SWITCH WHICH IS NOT ADEQUATE TO IMPLEMENT THE SWITCHING OF MAIN POWER TO STANDBY POWER. THE TECHNICAL PERSONNEL RESPONSIBLE FOR EVALUATION OF THE ASTRODATA BID FOUND NOTHING IN IT OR THE ACCOMPANYING LITERATURE WHICH INDICATE ANY EXCEPTION TO OR NONCONFORMITY WITH THE ADVERTISED SPECIFICATIONS. WHETHER THE RELAY SWITCH PROPOSED BY ASTRODATA WILL ACCOMPLISH ITS FUNCTION AND MEET THE PERFORMANCE REQUIREMENT OF THE SPECIFICATION IS A RISK WHICH ASTRODATA MUST BEAR. UNDER THE TERMS AND CONDITIONS OF THE INVITATION, WHICH WILL FORM A PART OF ANY CONTRACT AWARDED, ASTRODATA IS OBLIGATED TO FURNISH AT A FIXED PRICE EQUIPMENT WHICH CONFORMS TO THE SPECIFICATIONS, AND INSPECTION AND TESTING APPROVAL IS REQUIRED BEFORE IT CAN BE ACCEPTED OR PAID FOR.

WITH RESPECT TO YOUR CONTENTION THAT THE ASTRODATA EQUIPMENT DOES NOT CONFORM TO PARAGRAPH 3.2.8 OF THE SPECIFICATION IN THAT IT DOES NOT UTILIZE FORKED CONNECTORS ON THE PRINTED CIRCUIT CARDS, PAGE II-8 OFASTRODATA'S PROPOSAL STATES,"THE STANDARD ASTRODATA CONNECTOR * * * WILL BE REPLACED BY A "FORKED" TYPE CONNECTOR.' IT IS THEREFORE CLEAR THAT ITS STANDARD PRODUCT WILL BE MODIFIED IN THIS RESPECT TO CONFORM TO THE APPLICABLE SPECIFICATION.

IT IS THE LONG ESTABLISHED RULE OF OUR OFFICE THAT THE DETERMINATION OF WHETHER EQUIPMENT OFFERED BY A BIDDER CONFORMS TO CLEAR AND UNAMBIGUOUS ADVERTISED SPECIFICATIONS IS PRIMARILY THE FUNCTION OF THE CONTRACTING AND ADMINISTRATIVE OFFICIALS OF THE GOVERNMENT AND SUCH DETERMINATIONS ARE REGARDED AS CONTROLLING IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE TO THE CONTRARY. SEE 36 COMP. GEN. 251; 36 ID. 809, 813; 41 ID. 124, AND CASES CITED. IN VIEW OF THE ADMINISTRATIVE POSITION WITH RESPECT TO THE RESPONSIVENESS OF THE ASTRODATA BID, AND PARTICULARLY IN THE LIGHT OF THE REQUIREMENT FOR APPROVAL OF PROTOTYPES AS A PREREQUISITE TO PRODUCTION, WE ARE UNABLE TO ACCEPT YOUR ALLEGATIONS THAT THE BID IS NONRESPONSIVE.

IT THEREFORE IS NOT NECESSARY TO CONSIDER YOUR FURTHER CONTENTION THAT THE SECOND LOW BIDDER, R. F. COMMUNICATIONS, INC., IS NONRESPONSIVE AND YOUR PROTEST IS DENIED.