B-170550, OCT. 15, 1970

B-170550, OCT. 15, 1970

BID PROTEST - NONRESPONSIVENESS - DEVIATIONS DENIAL OF PROTEST OF KEVEX CORPORATION, LOW BIDDER, AGAINST REJECTION OF BID AS NONRESPONSIVE FOR A SOLID STATE ENERGY DISPERSIVE X-RAY SPECTROMETER SYSTEM, AND THE AWARD TO THE THIRD LOW BIDDER, NUCLEAR EQUIPMENT CORPORATION, BY THE GEOLOGICAL SURVEY, DENVER, COLORADO. WHERE LOW BIDDER FURNISHED X-RAY SPECTROMETER EQUIPMENT CONTAINING AN ION PUMP CONSIDERED BY BIDDER TO BE SUPERIOR IN PERFORMANCE TO THE ONE REQUESTED IN IFB, BUT WHEN TECHNICAL EVALUATION REVEALED THAT THE EQUIPMENT WAS NOT ACCEPTABLE DUE TO SPECIFICATION DEVIATIONS, BID WAS PROPERLY JUDGED NONRESPONSIVE. THE EQUIPMENT WITH THE ION PUMP SPECIFICATION REFERRED TO IN THE INVITATION WAS MORE SUITABLE FOR THE FUNCTION IT WAS TO PERFORM. ACCORDINGLY, THE PROTEST IS DENIED.

TO KEVEX CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 7, 1970, ADDRESSED TO THE UNITED STATES GEOLOGICAL SURVEY, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER CONCERN UNDER INVITATION FOR BIDS NO. 71-1, ISSUED ON JULY 1, 1970, BY THE UNITED STATES GEOLOGICAL SURVEY, DENVER, COLORADO, DEPARTMENT OF THE INTERIOR.

THE PROCUREMENT WAS FOR ONE "SOLID STATE ENERGY DISPERSIVE X-RAY SPECTROMETER SYSTEM" IN ACCORDANCE WITH APPLICABLE SPECIFICATIONS. BIDS WERE OPENED ON JULY 20, 1970, AND THE FOLLOWING BIDS WERE RECEIVED:

KEVEX CORPORATION $17,290.00

NUCLEAR DIODES $18,520.00

NUCLEAR EQUIP. CORP. $19,500.00

ORTEC INCORPORATED $20,255.03

CANBERRA INCORPORATED $21,625.00

PARAGRAPH 2.2.6 ON PAGE E OF THE SPECIFICATIONS PROVIDED:

"THE VACUUM SHALL BE MAINTAINED BY AN ION PUMP WHICH WILL HAVE A MINIMUM PUMPING CAPACITY OF 1 LITER PER SECOND AT A VACUUM OF 10-6 MM. BIDDER SHALL SUPPLY THE FORE PUMP SYSTEM, WHICH SHALL INCLUDE THE ION PUMP."

YOUR BID OFFERED THE FOLLOWING VACUUM SYSTEM:

"THE KEVEX-RAY VACUUM SYSTEM OPERATES ON THE MOST MODERN CRYOGENIC PUMPING PRINCIPLE USING MOLECULAR SIEVE ACHIEVING FAR SUPERIOR OPERATING CONDITIONS AND RELIABILITY TO THE NOW OUTDATED AND OBSOLETE ION PUMP. THIS SYSTEM PRODUCES A VACUUM FREE FROM THE CONTAMINATES PRODUCED BY AN ION PUMP WHICH ARE KNOWN TO DEGRADE THE INTEGRITY OF THE SEMICONDUCTOR DETECTOR. THIS SYSTEM OPERATES WITHOUT PRODUCING THE ELECTRIC AND MAGNETIC FIELDS THAT AN ION PUMP DOES AND THEREFORE CANNOT INTERFERE WITH THE PROPER OPERATION OF THE ELECTRON MICROPROBE. ALSO, THIS SYSTEM IS FAR SUPERIOR IN RELIABILITY TO THE OUTDATED ION PUMP SYSTEM. AN ION PUMP SYSTEM CAN MALFUNCTION BY HAVING: THE FORE PUMP CONTAMINATE THE SYSTEM, GENERAL POWER FAILURE, AND/OR POWER SUPPLY FAILURE. THE MODERN MOLECULAR- SIEVE CRYOGENIC PUMP WITH ITS BASIC SIMPLICITY FOR ALL PRACTICAL PURPOSES PRECLUDES FAILURE." PURSUANT TO A TECHNICAL EVALUATION IT WAS DETERMINED THAT YOUR BID WAS NOT ACCEPTABLE SINCE YOUR BID DEVIATED FROM THE REQUIREMENT FOR FURNISHING AN ION PUMP AS REQUIRED BY THE SPECIFICATIONS. THE SECOND LOW BID WAS REJECTED FOR THE SAME REASON. AWARD WAS MADE TO NUCLEAR EQUIPMENT CORPORATION ON AUGUST 3, 1970. BY LETTER DATED AUGUST 4, 1970, YOU WERE ADVISED THAT YOUR BID WAS REJECTED.

YOUR LETTER OF AUGUST 7 URGES THAT THE MOLECULAR SIEVE CRYOGENIC PUMPS HAVE REPLACED THE ION PUMP AND THAT YOUR PROPOSED PUMP IS SUPERIOR IN PERFORMANCE TO AN ION TYPE PUMP.

IT WAS DETERMINED BY THE GEOLOGICAL SURVEY'S SPECIFICATIONS WRITER THAT AN ION PUMP WAS A NECESSARY REQUIREMENT FOR USE OF THE EQUIPMENT AND THAT THE MOLECULAR SIEVE IS UNSATISFACTORY IN TERMS OF DETECTOR CONTAMINATION, DETECTOR LIFE AND EFFICIENCY OF USE OF LIQUID NITROGEN.

THE REPORT FROM THE DEPARTMENT OF THE INTERIOR STATES AS FOLLOWS ON THE REQUIREMENT FOR AN ION PUMP:

"THE SYSTEM SPECIFIED IS NOT AN OFF SHELF ITEM, BUT SPECIFIES A SYSTEM WHICH MUST BE ENGINEERED TO COMBINE A NUMBER OF CURRENTLY AVAILABLE COMPONENTS INTO ONE OVERALL SYSTEM. THE ION PUMP IS A VERY VALUABLE PART OF THE SYSTEM. THE ION PUMP REQUIREMENT IS NOT CONSIDERED TO BE RESTRICTIV SINCE IT IS AVAILABLE TO ALL MANUFACTURERS. WE KNOW FROM PREVIOUS DISCUSSIONS WITH THE SECOND LOW BIDDER, NUCLEAR DIODES, THAT THEY CAN FURNISH SYSTEMS WITH EITHER ION PUMPS OR SIEVES AND ALSO UNDERSTAND THAT THE FOURTH LOW BIDDER, ORTEC, IS PLANNING TO DEVELOP A SYSTEM WHICH WILL UTILIZE EITHER AN ION PUMP OR A *** SIEVE. WE KNOW OF TWO SOMEWHAT SIMILAR SYSTEMS INSTALLED IN THE LAST 18 MONTHS WITH ION PUMPS IN THEM."

IT IS URGED THAT THE REQUIREMENT IN PARAGRAPH 2.3.2 THAT THE STORAGE DEWAR SHOULD HAVE A MINIMUM CAPACITY OF 15 LITERS IS INADEQUATE AND THAT THE MINIMUM STORAGE DEWAR CAPACITY TO MEET THE SPECIFIED REQUIREMENTS IS 31 LITERS.

THE GEOLOGICAL SURVEY'S ANSWER IS THAT THE SPECIFICATIONS CALL FOR A MINIMUM CAPACITY OF 15 LITERS AND IT IS LEFT TO THE BIDDER TO DECIDE ON THE MAXIMUM CAPACITY NEEDED. THE CAPACITY REQUIRED WOULD DEPEND ON HOW EFFICIENTLY ANY PROPOSED REFILL SYSTEM OPERATES.

THE CONTENTION IS MADE THAT THERE IS AN UNREALISTIC REQUIREMENT IN PARAGRAPH 2.2.10 OF THE SPECIFICATIONS SINCE " *** NO MANUFACTURER PROVIDES AN 'OPTICAL FEEDBACK CIRCUIT' THAT PERFORMS THE FUNCTION DISCUSSED, NOR DOES SUCH AN OPTICAL CIRCUIT EXIST *** ".

WITH RESPECT TO THIS CONTENTION THE GEOLOGICAL SURVEY ADVISES THAT THE USE OF THE WORDS "OPTICAL FEEDBACK CIRCUIT" MEAN " *** A LIGHT SENSITIVE TRANSITOR WHICH IS USED TO MODIFY THE BIAS ON THE FET AND THAT THIS LANGUAGE IS COMMONLY USED IN THE ELECTRONICS INDUSTRY TO DESCRIBE SUCH A CIRCUIT."

IT IS URGED THAT THERE IS AN INCONSISTENCY BETWEEN PARAGRAPHS 2.1.10 AND 2.2.11 OF THE SPECIFICATIONS IN THAT THE FORMER REQUIRES AN O-RING SEAL TYPE FITTING WHICH IS VACUUM TIGHT (1X10-4 MM HG) MUST BE PROVIDED ON THE ASSEMBLY WHILE THE LATTER REQUIRES A (1X10-6 MM HG) VACUUM TIGHT O-RING SEAL TYPE FITTING. THE GEOLOGICAL SURVEY VIEW IS THAT THIS IS AN OBVIOUS TYPOGRAPHICAL ERROR WHICH WAS NOT DISCOVERED UNTIL AFTER BID OPENING AND DID NOT SERIOUSLY AFFECT THE SPECIFICATIONS OR CAUSE PROBLEMS TO THE BIDDERS.

WITH RESPECT TO THE ALLEGATION THAT THERE WAS SOME IMPROPER RELATIONSHIP BETWEEN THE GEOLOGICAL SURVEY AND THE SUCCESSFUL BIDDER THE GEOLOGICAL SURVEY DENIES THIS ALLEGATION.

WHETHER SPECIFICATIONS ARE ADEQUATE TO PERMIT OR REQUIRE THE MANUFACTURE OF A PRODUCT WHICH WILL MEET THE NEEDS OF THE GOVERNMENT IS PRIMARILY A MATTER WITHIN THE COGNIZANCE OF THE CONTRACTING AGENCY AND, LACKING THE NECESSARY TECHNICAL COMPETENCE, OUR OFFICE ORDINARILY WILL NOT UPSET AN ADMINISTRATIVE DETERMINATION THAT PARTICULAR REQUIREMENTS ARE NECESSARY. SEE B-159623, OCTOBER 26, 1966 AND 40 COMP. GEN. 294, 297 (1960).

PURSUANT TO OUR REVIEW WE FIND NO BASIS FOR QUESTIONING THE DETERMINATION TO REQUIRE AN ION TYPE PUMP. YOUR BID DEVIATED FROM THIS REQUIREMENT, WHICH OBVIOUSLY WAS MATERIAL, AND WAS PROPERLY REJECTED AS NONRESPONSIVE. WHILE THERE MAY HAVE BEEN AN INCONSISTENCY IN THE SPECIFICATIONS WITH RESPECT TO THE O-RING SEAL TYPE FITTING IT HAS NOT BEEN SHOWN THAT BIDDERS WERE PREJUDICED THEREBY; CONSEQUENTLY, WE DO NOT CONSIDER THIS TO BE A BASIS FOR QUESTIONING THE AWARD MADE. WE FIND THAT THE OTHER POINTS IN YOUR LETTER OF AUGUST 7, 1970, HAVE BEEN ANSWERED BY THE INFORMATION IN INTERIOR'S REPORT.

FOR THESE REASONS YOUR PROTEST IS DENIED.