B-160386, MAR. 20, 1967

B-160386, MAR. 20, 1967

TO GENERAL ELECTRIC COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 8, 1966, REQUESTING THAT OUR OFFICE CONSIDER A PROTEST WHICH YOU ORIGINALLY FILED WITH THE DEPARTMENT OF THE ARMY AGAINST THE AWARD OF A CONTRACT TO STANDARD X RAY SALES CORPORATION (STANDARD) UNDER INVITATION FOR BIDS (IFB) NO. AI-18-043-66- 114, ISSUED JUNE 10, 1966, BY THE PURCHASING AND CONTRACTING DIVISION, FORT GEORGE G. MEADE, MARYLAND, FOR THE PROCUREMENT OF X-RAY EQUIPMENT FOR THE UNITED STATES ARMY DISPENSARY, FORT HOLABIRD, BALTIMORE, MARYLAND. THE PROTEST WAS DENIED BY THE CONTRACTING OFFICER, AND YOU EXPRESS DISSATISFACTION WITH THE ADMINISTRATIVE REPLIES TO VARIOUS QUESTIONS WHICH YOU RAISED CONCERNING THE PROCUREMENT PROCEDURES.

THE IFB, AS AMENDED, SPECIFIED THAT BIDS WOULD BE OPENED AT 3:00 P.M., EASTERN DAYLIGHT SAVING TIME, JUNE 28, 1966. THE PURCHASE DESCRIPTION READS AS FOLLOWS:

"1. X-RAY APPARATUS SET, RADIOGRAPHIC, 500 MA, 140 KVP, TO INCLUDE INSTALLATION, IN STRICT ACCORDANCE WITH FEDERAL SPECIFICATIONS GG-X 635C AND INTERIM AMENDMENT 1, CONSISTING OF THE FOLLOWING COMPONENTS:

1EA. --------- ----------

A. GENERATING UNIT, VERTICAL-PANEL CABINET TYPE II, 500 MA, 140 KVP, WITH RADIOGRAPHIC TIMER WITH RANGE OF 1/120 TO 8 SECONDS, AND PANEL LIGHTING.

B. HIGH TENSION TRANSFORMER, TYPE IV, CLASS 1, 500 MA AT 140 KVP.

C. RADIOGRAPHIC TABLE, TYPE II, CLASS 3, NOT LESS THAN 15 DEGREES TRENDELENBURG TO NOT MORE THAN 2 DEGREES OF VERTICLE.

D. BUCKEY, SUPER SPEED.

E. GRID, RADIOGRAPHIC, 12:1

F. TUBE, RADIOGRAPHIC, TYPE I, CLASS 2, STYLE (B).

G. CABLE, RADIOGRAPHIC (2 EA).

H. TUBE HANGER, OVERHEAD, TYPE I CLASS 2.

I. COLLIMATOR, RADIOGRAPHIC.

"COST TO INCLUDE COMPLETE INSTALLATION AND DELIVERY TO SUPPLY OFFICER, U.S. ARMY DISPENSARY, FORT HOLABIRD, BALTIMORE, MARYLAND 21219.'

ON JUNE 28, THE FOUR BIDS WHICH WERE RECEIVED WERE OPENED AS SCHEDULED. STANDARD'S BID IN THE AMOUNT OF $14,095 WAS LOWEST, AND YOUR BID IN THE AMOUNT OF $16,890 WAS HIGHEST. ON JUNE 30, AWARD WAS MADE TO STANDARD.

IN A LETTER DATED JULY 6, TO THE CONTRACTING OFFICER, YOU PROTESTED THE AWARD ON THE BASIS THAT YOU WERE THE ONLY BIDDER WHO HAD COMPLIED WITH THE FEDERAL SPECIFICATION, IN THAT NO OTHER BIDDER HAD SUBMITTED OR INDICATED THAT IT WAS SUBMITTING AN ITEM IN COMPLIANCE WITH THE REQUIREMENTS IN PARAGRAPH 3.7.2.2.2 OF THE FEDERAL SPECIFICATION, RELATING TO STYLE (B) HIGH-SPEED INSERTS, THAT THE ROTOR OF THE HIGH SPEED TUBES, DESIGNATED AS ITEM F IN THE PURCHASE DESCRIPTION, ATTAIN A SPEED FROM REST OF AT LEAST 5600 R.P.M. WITHIN 2 1/2 SECONDS WHEN 220 VOLTS ARE APPLIES TO THE STATOR THROUGH SUITABLE FREQUENCY CHANGING EQUIPMENT AND HAVE A CAPACITY TO MAINTAIN A SPEED OF AT LEAST 5600 R.P.M. WITH 110 VOLTS APPLIED TO THE ROTOR. IN ADDITION, YOU STATED THAT STANDARD'S GENERATOR HAD A RATING OF ONLY 500 MA AT 125 KVP AS OPPOSED TO THE IFB SPECIFICATION REQUIREMENT FOR 500 MA AT 140 KVP AND THAT IT WOULD BE UNFAIR TO THE OTHER BIDDERS TO ALLOW STANDARD TO SUBSEQUENTLY FURNISH CLARIFYING INFORMATION ON ITS BID.

WE FIND IN THE INVITATION NO REQUEST OR REQUIREMENT FOR SUBMISSION BY BIDDERS OF DESCRIPTIVE DATA OF ANY KIND. IN THE ABSENCE OF ANY QUALIFICATION OR EXCEPTION NOTED IN A BID THE BIDDER UNDER SUCH AN INVITATION AGREES TO BE BOUND TO COMPLY FULLY WITH ALL REQUIREMENTS OF THE INVITATION, AND UPON ACCEPTANCE OF THE BID HE IS LEGALLY OBLIGATED TO FURNISH ARTICLES IN COMPLETE CONFORMITY TO THE SPECIFICATIONS. SINCE THE SPECIFICATIONS APPEAR TO BE QUITE DEFINITE AS TO WHAT THE GOVERNMENT WANTED TO BUY, AND THE LOW BIDDER'S BID WAS FULLY RESPONSIVE TO THE TERMS OF THE INVITATION AND INDICATED NO QUALIFICATION OR EXCEPTION TO THE SPECIFICATIONS, HE WAS ENTITLED TO AWARD OF THE CONTRACT UNLESS DETERMINED TO BE NOT RESPONSIBLE OR UNLESS ALL BIDS WERE REJECTED.

IN THESE CIRCUMSTANCES STANDARD WAS BOUND TO FURNISH ARTICLES MEETING ALL THE REQUIREMENTS OF THE SPECIFICATIONS, AND THE GOVERNMENT WAS ENTITLED TO ENFORCE THE CONTRACT ON THAT BASIS AND TO REJECT ANY ITEM FURNISHED WHICH DID NOT MEET THE REQUIREMENTS. HOWEVER, UPON RECEIPT OF YOUR PROTEST THE CONTRACTING AGENCY DID UNDERTAKE TO INQUIRE OF STANDARD AS TO WHAT IT INTENDED TO FURNISH, AND IN A SUBSEQUENT EXCHANGE OF CORRESPONDENCE WITH THE PROCURING ACTIVITY, YOU WERE ADVISED THAT STANDARD, AFTER BEING NOTIFIED OF THE SUBSTANCE OF YOUR PROTEST, HAD FURNISHED DETAILED DESCRIPTIVE DATA OF THE ITEM WHICH IT PROPOSED TO FURNISH AND THAT TECHNICAL EVALUATION OF SUCH DATA INDICATED THAT THE EQUIPMENT OFFERED MET THE FEDERAL SPECIFICATION. THEREAFTER YOU QUESTIONED THE PROPRIETY OF PERMITTING STANDARD TO SUBMIT SUCH INFORMATION, WHICH HAD NOT BEEN INCLUDED IN ITS BID, AND YOU REQUESTED A MEETING WITH THE CONTRACTING OFFICER. FOLLOWING THE MEETING, WHICH WAS HELD ON SEPTEMBER 20, YOU ADDRESSED A LETTER DATED SEPTEMBER 23 TO THE CONTRACTING OFFICER IN WHICH YOU REITERATED YOUR ORIGINAL CHARGE THAT STANDARD PROPOSED TO OFFER A GENERATOR WITH A RATING OF 500 MA AT 125 KVP; YOU CONTENDED THAT YOU HAD LEARNED AT THE SEPTEMBER 20 MEETING THAT STANDARD INTENDED TO SUPPLY HIGH SPEED STARTERS AND SPEED TUBES WHICH WERE NOT A PART OF ITS ORIGINAL SUBMISSION, THUS INDICATING THAT ITS ORIGINAL SUBMISSION (BID) WAS INCOMPLETE; AND YOU REQUESTED REVIEW OF YOUR PROTEST AT A LEVEL OF AUTHORITY HIGHER THAN THE CONTRACTING OFFICER. BY LETTER DATED OCTOBER 19, THE CONTRACTING OFFICER ADVISED YOU AS FOLLOWS:

"REFERENCE IS MADE TO YOUR LETTER OF 23 SEPTEMBER 1966, REQUESTING THAT THE CONTRACT FOR PROVIDING AND INSTALLING X-RAY APPARATUS AT THE U.S. ARMY DISPENSARY, FORT HOLABIRD, MARYLAND BE REVIEWED AT A LEVEL HIGHER THAN THE CONTRACTING OFFICER.

"A REVIEW OF THE CONTRACT HAS BEEN CONDUCTED AND THE COMMENTS CONTAINED IN YOUR 23 SEPTEMBER 1966 LETTER HAVE RECEIVED APPROPRIATE CONSIDERATION. THE AWARD TO STANDARD X-RAY SALES COMPANY WAS MADE AFTER AN EVALUATION OF THE MANUFACTURER'S DESCRIPTION OF THE ITEM OFFERED. THIS EVALUATION CONCLUDED THAT THE EQUIPMENT TO BE PROVIDED DID IN FACT MEET FEDERAL SPECIFICATIONS GG-X-635C. THE INVITATION FOR BIDS SOLICITED PRICES FOR X- RAY EQUIPMENT IN STRICT ACCORDANCE WITH FEDERAL SPECIFICATIONS GG-X-635C AND SPECIFIED AT GENERATING UNIT RATED AT 500M MA AT 140 KVP. THE GENERATING UNIT RATED AT 500 MA AT 125 KVP IS IN ACCORDANCE WITH FEDERAL SPECIFICATIONS GG-X-635C, AND MEETS THE MINIMUM ESSENTIAL NEEDS OF THE REQUIRING ACTIVITY. THE 15 KVP DIFFERENCE BETWEEN THE GENERATOR UNIT PROVIDED AND THE ONE SPECIFIED IS A MINOR OPERATING DEVIATION THAT WILL NOT MATERIALLY EFFECT THE OPERATIONS OF THE U.S. ARMY DISPENSARY LOCATED AT FORT HOLABIRD, MARYLAND.

"THE AWARD MADE TO STANDARD X-RAY SALES COMPANY FOR EQUIPMENT THAT MEETS FEDERAL SPECIFICATIONS AND THE ESSENTIAL NEEDS OF THE GOVERNMENT IS CONSIDERED IN THE BEST INTEREST OF THE GOVERNMENT, THEREFORE, YOUR PROTEST CANNOT BE CONSIDERED.'

IN YOUR LETTER OF NOVEMBER 8, YOU SUMMARIZE YOUR PROTEST AS FOLLOWS:

"1. NO OTHER BIDDER SUBMITTED INFORMATION ON A HIGH SPEED TUBE UNIT AND FREQUENCY CHANGING EQUIPMENT AS REQUIRED BY THE INVITATION FOR BID.

"2. GENERATOR RATINGS OF 500 MA AT 140 KVP AS LISTED IN THE INVITATION WERE NOT MET OR EXCEEDED BY THE SUCCESSFUL BIDDER.

"3. THE SUCCESSFUL BIDDER HAS SUBMITTED INFORMATION SINCE THE BID OPENING QUALIFYING HIS ORIGINAL SUBMISSION.

"4. THE STATEMENTS IN THE LETTER OF OCTOBER 19, 1966, CONCERNING MINIMUM ESSENTIAL NEEDS OF THE REQUIRING ACTIVITY IS A DIRECT CONTRADICTION OF THE SPECIFICATIONS ISSUED WITH THE INVITATION FOR BID, FOR WHICH I AM BEING PENALIZED IN MEETING.'

THE FILE MADE AVAILABLE TO OUR OFFICE BY THE DEPARTMENT OF THE ARMY INCLUDES A COPY OF THE PURCHASE REQUEST, PREPARED BY KIMBROUGH ARMY HOSPITAL, WHICH CALLS FOR EQUIPMENT WITH A UNIT CAPABLE OF GENERATING 500 MA AT 140 KVP. THROUGH INADVERTENCE, HOWEVER, THE PROCURING ACTIVITY FAILED TO COMPLY WITH THE REQUIREMENT IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 5-1201.6, THAT REQUISITIONS FOR X-RAY EQUIPMENT AND SUPPLIES, WITH CERTAIN EXCEPTIONS NOT PERTINENT HERE, BE SUBMITTED TO THE DEFENSE PERSONNEL SUPPORT CENTER, DEFENSE SUPPLY AGENCY, FOR PURCHASE, AND IN PREPARING THE PURCHASE DESCRIPTION FOR THE IFB THE PROCURING ACTIVITY FAILED TO NOTE THAT THE REQUESTED GENERATOR PERFORMANCE RATING OF 500 MA AT 140 KVP EXCEEDED THE RATING OF 500 MA AT 125 KVP CITED IN THE FEDERAL SPECIFICATION, A DEVIATION FOR WHICH APPROVAL BY THE HEAD OF THE PROCURING ACTIVITY WAS REQUIRED BY ARMY PROCUREMENT PROCEDURES (APP) 1-1202.50, IMPLEMENTING FEDERAL PROCUREMENT REGULATIONS 1-1202.50. HOWEVER, NEITHER YOU NOR ANY OF THE OTHER BIDDERS, NOR, APPARENTLY, ANY PROSPECTIVE BIDDER, QUESTIONED THE DEVIATION OR ITS POSSIBLE INCONSISTENCY WITH THE IFB REQUIREMENT THAT THE EQUIPMENT BE IN "STRICT" ACCORDANCE WITH THE FEDERAL SPECIFICATION PRESCRIBING A LOWER GENERATOR PERFORMANCE RATING, NOR WAS ANY COMPLAINT MADE THAT THE HIGHER RATING MADE THE SPECIFICATION UNDULY RESTRICTIVE OF COMPETITION. DESPITE THE SOMEWHAT AMBIGUOUS STATEMENT IN THE CONTRACTING OFFICER'S LETTER TO YOU OF OCTOBER 19 INDICATING THAT A GENERATING RATE OF 500 MA AT 125 KVP MIGHT HAVE BEEN ACCEPTED, THE COMMANDING GENERAL, UNITED STATES CONTINENTAL ARMY COMMAND, HAS REPORTED UNDER DATE OF FEBRUARY 7, 1967, THAT THE X-RAY MACHINE DELIVERED BY STANDARD TO THE USING ACTIVITY IS STANDARD'S MODEL VR-600 WITH A RATED CAPACITY OF 150 KVP; THAT THE MANUFACTURER'S DESCRIPTIVE LITERATURE FURNISHED BY STANDARD (BEFORE DELIVERY BUT AFTER YOUR PROTEST) SHOWS THAT THE EQUIPMENT HAS A KILOVOLT CONTROL PERMITTING ADJUSTMENT FROM 40 TO 150 PKV (KVP); AND THAT ON ACTUAL TEST AFTER ITS INSTALLATION THE EQUIPMENT DEMONSTRATED A CAPABILITY OF 500 MA AT 140 KVP.

CONCERNING THE DEVIATION, THE COMMANDING OFFICER, KIMBROUGH ARMY HOSPITAL, IN A MEMORANDUM DATED DECEMBER 12, 1966, MAKES THE FOLLOWING STATEMENTS:

"1. JUSTIFICATION FOR DEVIATION FROM FEDERAL SPECIFICATIONGG-X-635C PERTAINING TO X-RAY APPARATUS SET, RADIOGRAPHIC AND FLUOROSCOPIC PURCHASED FOR US ARMY DISPENSARY, FORT HOLABIRD, MARYLAND WAS BASED ON RECOMMENDATIONS OF THE CHIEF, RADIOLOGY DEPARTMENT, KIMBROUGH ARMY HOSPITAL AT THE TIME THE PURCHASE ACTION WAS INITIATED.

"2. IN THE OPINION OF THE CHIEF, RADIOLOGY DEPARTMENT AN X-RAY APPARATUS HAVING A GENERATOR OUTPUT OF 140 KVP WOULD BE A TREMENDOUS IMPROVEMENT FOR THE FOLLOWING REASONS:

"A. THE GENERATOR OUTPUT OF 140 KVP WOULD REDUCE THE TIME A PATIENT IS EXPOSED TO RADIATION.

"B. X-RAYS TAKEN OF INFANTS WOULD BE VASTLY IMPROVED SINCE THE SPEED INCREASE WOULD COMPENSATE FOR THE MOVEMENTS OF INFANTS DURING THE X-RAY PROCESS.

"C. THE KVP OUTPUT AND RESULTANT DECREASE IN PATIENT EXPOSURE TIME WOULD ALSO LESSEN THE AMOUNT OF EXCESS RADIATION PRESENT IN THE AREA DURING RADIOGRAPHIC PROCEDURES.

"3. THE POLICY OF INSTALLING X-RAY APPARATUS SETS WITH HIGHER KVP OUTPUT IS SUPPORTED BY THE CHIEF, RADIOLOGY CONSULTANT TO THE SURGEON GENERAL, U.S. ARMY.'

ASPR 2-202.5 (B), RELATING TO REQUIREMENTS FOR DESCRIPTIVE DATA, PROVIDES THAT BIDDERS SHOULD NOT BE REQUIRED TO FURNISH DESCRIPTIVE LITERATURE AS A PART OF THEIR BIDS UNLESS THE PURCHASING ACTIVITY DETERMINES 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 BIDDERS PROPOSE TO FURNISH. VIEW THEREOF, AND OF THE APPARENT ADEQUACY OF THE SPECIFICATIONS, IT APPEARS THAT IT WOULD NOT HAVE BEEN PROPER TO REQUIRE THE FURNISHING OF DESCRIPTIVE LITERATURE AS PART OF THE BIDS ON THE EQUIPMENT IN QUESTION, AND WE DO NOT BELIEVE IT WAS MANDATORY UPON THE AGENCY TO REQUEST SUCH DATA AFTER AWARD UPON RECEIPT OF YOUR PROTEST.

ASPR 2-407.9 (C), RELATING TO POST-AWARD BID PROTESTS, PROVIDES THAT SUCH PROTESTS SHALL BE HANDLED IN ACCORDANCE WITH DEPARTMENTAL PROCEDURES. APP 2-407.9, WHICH SETS FORTH THE PROCEDURES TO BE FOLLOWED BY THE DEPARTMENT OF THE ARMY IN SUCH CASES, PROVIDES, AT SUBPARAGRAPH (A), THAT NOTICE OF THE PROTEST SHALL BE GIVEN TO ANY OTHER BIDDER, CONTRACTOR, OR PARTY HAVING LEGITIMATE INTEREST SO THAT THEY MAY TAKE APPROPRIATE ACTION ON THEIR OWN BEHALF AND, AT SUBPARAGRAPH (G), THAT WHERE IT REASONABLY APPEARS THAT THE CONTRACT AWARD MAY BE HELD TO BE INVALID AND A DELAY IN RECEIPT OF THE SUPPLIES OR SERVICES IS NOT PREJUDICIAL TO THE GOVERNMENT'S INTEREST, THE CONTRACTING OFFICER SHOULD, SUBJECT TO SUCH INSTRUCTIONS AS THE HEAD OF THE PROCURING ACTIVITY DETERMINES APPROPRIATE, SEEK A MUTUAL AGREEMENT WITH THE SUCCESSFUL BIDDER TO STOP WORK ON A NO-COST BASIS. UNDER SUCH REGULATIONS, IT WAS PROPER FOR THE CONTRACTING OFFICER TO NOTIFY STANDARD OF YOUR PROTEST AND TO INQUIRE WHETHER IT DID INTEND TO FURNISH NONCONFORMING ARTICLES AS CONTENDED BY YOU. SUCH INQUIRY DID NOT CONSTITUTE ANY WAIVER OF THE GOVERNMENT'S RIGHTS OR MODIFICATION OF THE CONTRACT REQUIREMENTS, AND WE DO NOT BELIEVE THAT STANDARD'S REPLY COULD HAVE AFFECTED THE VALIDITY OF THE CONTRACT IN ANY CASE, BUT MIGHT HAVE FURNISHED GROUND FOR TERMINATION FOR DEFAULT FOR ANTICIPATORY BREACH IF STANDARD HAD ADVISED THAT IT DID NOT INTEND TO FURNISH ARTICLES MEETING THE SPECIFICATIONS. WHILE THE REPORTED FACTS ESTABLISH THAT THE PROCUREMENT PROCEDURES WERE DEFICIENT TO THE EXTENT THAT THE PROCUREMENT WAS HANDLED AT A LOCAL LEVEL RATHER THAN BY THE DEFENSE PERSONNEL SUPPORT CENTER, AND PROPER APPROVAL WAS NOT OBTAINED FOR THE DEVIATION FROM THE FEDERAL SPECIFICATION, IT DOES NOT APPEAR THAT THESE PROCEDURAL DEFECTS AFFECTED ANY RIGHTS OF BIDDERS OR WERE SO MATERIAL AS TO RENDER THE CONTRACT VOID.

WHILE THERE WAS AN INCONSISTENCY BETWEEN THE LITERAL LANGUAGE OF THE IFB REQUIREMENT THAT THE EQUIPMENT BE IN "STRICT" ACCORDANCE WITH THE FEDERAL SPECIFICATION, AND THE REQUIREMENT THAT THE GENERATOR HAVE A GREATER PERFORMANCE CAPABILITY THAN REQUIRED BY SUCH SPECIFICATION, WE BELIEVE IT WOULD BE UNREASONABLE TO READ THE PURCHASE DESCRIPTION TO PERMIT THE FURNISHING OF EQUIPMENT NOT CONFORMING TO THE SPECIAL REQUIREMENT FOR 500 MA AT 140 KVP. ALL BIDDERS APPARENTLY BID ON THAT REQUIREMENT; NO ONE OBJECT TO IT; AND THE LOW BIDDER HAS COMPLIED WITH IT. IN THE CIRCUMSTANCES, AND SINCE THE DEPARTMENT OF THE ARMY HAS ADVISED OUR OFFICE THAT THE PROCEDURAL DEFICIENCIES OF THIS PROCUREMENT ARE BEING CALLED TO THE ATTENTION OF THE APPROPRIATE PROCURING ACTIVITY IN ORDER TO AVOID ANY SIMILAR OCCURRENCES, WE DO NOT FEEL THAT DISTURBANCE OF THE ACTION TAKEN BY THE PROCURING ACTIVITY WOULD BE JUSTIFIED.