B-171164, JAN 4, 1971

B-171164, JAN 4, 1971

BID PROTEST - BIDDER RESPONSIVENESS - MATERIAL DEVIATIONS DENIAL OF PROTEST OF NUCLEAR DIODES, INC., AGAINST THE AWARD OF AN ADVERTISED CONTRACT FOR A NONDISPERSIVE X-RAY DETECTION SYSTEM AND ASSOCIATED EQUIPMENT INCLUDING AS A SUBSYSTEM A MULTI-CHANNEL ANALYZER ISSUED BY GRIFFISS AFB, NEW YORK, TO ANOTHER SUPPLIER. ALTHOUGH NUCLEAR DIODES' PROPOSED SYSTEM MET THE REQUIREMENTS FOR X RAY DETECTION IT WAS DEFICIENT IN THE DATA HANDLING AND DISPLAY CAPABILITIES ASKED FOR IN THE IFB. FUTHERMORE, PROTESTANT'S CONTENTION THAT THE GOVERNMENT LACKED JUSTIFICATION FOR PAYING A PREMIUM FOR A SYSTEM WITH EXCESSIVE ELECTRONICS PERFORMANCE (100 MHZ ADC DIGITIZING RATE, SIX DECADE LOGARITHMIC DISPLAY, ETC.,) WHEN A SYSTEM WITH SUPERIOR RESOLUTION IS AVAILABLE AT LOWER PRICE, RESOLUTION BEING THE MOST IMPORTANT PERFORMANCE SPECIFICATION IN THE IDENTIFYING OF ELEMENTS BY X-RAY ANALYSIS IS DOWNGRADED BY THE PROCURING ACTIVITY'S ASSERTION THAT ITS MAJOR REASONS FOR THE ACQUISITION OF A NONDISPERSIVE SYSTEM GO CONSIDERABLY BEYOND THE ONE CRITERION OF RESOLUTION. DECISIONS HAVE CONSISTENTLY HELD THAT THE ESTABLISHMENT OF SPECIFICATIONS IS THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCY WHOSE TECHNICAL JUDGMENT WILL BE ACCEPTED EXCEPT WHERE SHOWN TO BE UNMISTAKABLY IN ERROR.

TO NUCLEAR DIODES, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 26, 1970, ADDRESSED TO MR. C. KORING, CHIEF, SUPPLIES PROCUREMENT BRANCH, GRIFFISS AIR FORCE BASE, NEW YORK, IN WHICH YOU PROTEST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. F30635-71-B-0003 AS ISSUED BY THE ABOVE FACILITY.

THE SUBJECT INVITATION REQUESTED BIDS ON A NONDISPERSIVE X-RAY DETECTION SYSTEM AND ASSOCIATED EQUIPMENT INCLUDING AS A SUBSYSTEM THE MULTI-CHANNEL ANALYZER DESCRIBED BY FORMAL SPECIFICATION IN SECTION F, PARAGRAPH B OF THE INVITATION. THOUGH THE LOWEST OF FIVE BIDS SUBMITTED AFTER CONTACT WITH 16 POTENTIAL SOURCES, YOUR BID WAS REJECTED BECAUSE OF MATERIAL DEVIATIONS FROM THE SPECIFICATIONS AS FOLLOWS:

SPECIFICATION REQUIREMENT NUCLEAR DIODES BID

1. 100 MHZ ADC DIGITIZING RATE. 1. 60 MHZ RATE.

2. 3 MICROSECOND MEMORY CYCLE TIME. 2. 6 MICROSECOND CYCLE.

3. SIX DECADE LOGARITHMIC DISPLAY. 3. FOUR DECADE DISPLAY.

4. SPECTRUM STRIPPING CAPABILITY. 4. MODEL OFFERED DOES NOT

HAVE THIS CAPABILITY.

5. CAPACITY FOR VERTICAL DISPLACEMENT 5. SYSTEM OFFERED WILL NOT

OF THE COMPLEMENTARY PERFORM THIS FUNCTION.

SUBGROUP FROM THE MEMORY OF

THE MULTI-CHANNEL ANALYZER.

ON THE BASIS OF THESE DEVIATIONS IT WAS DETERMINED THAT THE SYSTEM YOUR FIRM OFFERED DID NOT MEET THE ADVERTISED SPECIFICATIONS. YOUR FIRM'S BID WAS REJECTED AS NONRESPONSIVE PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION 2-404.2:

"(B) ANY BID WHICH DOES NOT CONFORM TO THE SPECIFICATIONS CONTAINED OR REFERENCED IN THE INVITATION FOR BIDS SHALL BE REJECTED *** ." IN THE OPINION OF THE PROCURING AGENCY, THE REQUIREMENTS SET FORTH IN THE SPECIFICATIONS WERE CRITICAL TO THE PROCUREMENT OF A SYSTEM THAT WOULD PROPERLY PERFORM THE NECESSARY FUNCTIONS OF NONDISPERSIVE X-RAY DETECTION AND ANALYSIS. IN SUPPORT OF THE POSITION TAKEN IN YOUR LETTER OF OCTOBER 26, 1970, THAT "THE SYSTEM QUOTED BY NUCLEAR DIODES FULLY MEETS THE REQUIREMENTS FOR NON-DISPERSIVE X-RAY ANALYSIS" YOU STATE:

" *** THE SPECIFICATIONS WITH WHICH YOU INDICATE WE FAIL TO COMPLY, HAVE ABSOLUTELY NO EFFECT ON, OR DEGRADE IN ANY WAY, THE PERFORMANCE OF THE SYSTEM FOR NON-DISPERSIVE ANALYSIS.

"HOW CAN THE GOVERNMENT JUSTIFY PAYING A PREMIUM FOR A SYSTEM WITH EXCESSIVE ELECTRONICS PERFORMANCE AND MODERATE SYSTEM RESOLUTION, WHEN A SYSTEM WITH SUPERIOR RESOLUTION IS AVAILABLE AT A LOWER PRICE. A NON DISPERSIVE X-RAY ANALYSIS SYSTEM IS USED TO IDENTIFY ELEMENTS IN A SAMPLE. THE ABILITY TO IDENTIFY ELEMENTS, FOR EXAMPLE, A1 AND S1, IS A FUNCTION OF THE RESOLUTION OF THE SYSTEM. THIS MOST IMPORTANT PERFORMANCE SPECIFICATION WAS OBVIOUSLY NOT GIVEN SERIOUS CONSIDERATION, AS OUR ALTERNATE SYSTEM GUARANTEED 200 EV RESOLUTION (240 EV WAS SPECIFIED AND PURCHASED) *** .

"IT IS SAD TO SEE THE GOVERNMENT SPEND MONEY FOR ELECTRONICS PERFORMANCE IN EXCESS OF THAT REQUIRED AND USE THAT PERFORMANCE AS JUSTIFICATION TO REJECT A SYSTEM WITH SUPERIOR RESOLUTION AND MORE THAN ADEQUATE ELECTRONICS PERFORMANCE WHEN RESOLUTION IS THE MOST IMPORTANT PERFORMANCE SPECIFICATION FOR NON-DISPERSIVE X-RAY ANALYSIS SYSTEMS."

RESPONDING TO YOUR CONTENTIONS, THE CONTRACTING OFFICER'S TECHNICAL REPRESENTATIVE COMMENTS AS FOLLOWS:

" *** OUR REQUIREMENTS, DEVELOPED OVER A PERIOD OF FOUR YEARS OF EXPERIENCE IN THE FIELD OF ELECTRON BEAM X-RAY MICROANALYSIS, COVERED NOT ONLY THE DETECTION OF X-RAYS BUT ALSO THE ELECTRONIC PROCESSING OF THE DETECTED X-RAY SIGNALS AND THEIR SUBSEQUENT DISPLAY AS USEABLE DATA.

"NUCLEAR DIODES PROPOSED A SYSTEM WHICH CERTAINLY MET THE REQUIREMENTS FOR X-RAY DETECTION BUT WAS DEFICIENT IN THE DATA HANDLING AND DISPLAY CAPABILITIES. ***

" *** THE CLEAR DISTINCTION BETWEEN X-RAY DETECTION AND X-RAY ANALYSIS MUST BE POINTED OUT. SINCE WE ARE CAPABLE OF DETECTING X-RAYS USING DISPERSIVE X-RAY OPTICS ON OUR EXISTING ELECTRON BEAM MICROANALYZER, THE MAJOR REASONS FOR THE ACQUISITION OF A NONDISPERSIVE SYSTEM GO CONSIDERABLY BEYOND THIS ONE ASPECT OF THE TOTAL SYSTEM REQUIREMENTS.

"A NONDISPERSIVE X-RAY SYSTEM PERMITS THE RAPID EVALUATION OF THE X RAY SPECTRUM GENERATED FROM THE SAMPLE UNDER ANALYSIS. THE ADVANTAGES OF THIS SYSTEM CAN BE REALIZED ONLY IF THE X-RAY SIGNALS, DETECTED OVER A MUCH SHORTER PERIOD OF TIME THAN POSSIBLE USING THE LESS EFFICIENT DISPERSIVE X -RAY OPTICS, CAN BE CONVERTED TO MEANINGFUL CHEMICAL INFORMATION ABOUT THE SAMPLE. THIS REQUIREMENT IMPOSES RESTRICTIONS ON THE MULTICHANNEL ANALYZER (MCA) PART OF THE NONDISPERSIVE X-RAY DETECTION SYSTEM.

"BECAUSE OF THE HIGH X-RAY COUNT RATES ENCOUNTERED IN AN ELECTRON BEAM MICROANALYZER, THE LOGIC CIRCUITS OF THE MCA MUST BE HIGH SPEED TO PREVENT DEGRADATION OF THE X-RAY SIGNAL THROUGH THE DATA PROCESSING PORTION OF ANALYSIS. THE DEFICIENCIES OF THE NUCLEAR DIODES SYSTEM IN THIS AREA WERE REFLECTED BECAUSE THEY DEPARTED FROM OUR SPECIFICATIONS FOR DIGITIZING RATE AND MEMORY CYCLE TIME.

"ONCE THE X-RAY SIGNAL IS DETECTED AND PROCESSED, IT MUST BE DISPLAYED IN AN EFFECTIVE MANNER FOR THE PURPOSE OF ASCERTAINING SOMETHING ABOUT THE CHEMISTRY OF THE SAMPLE. AGAIN, MANY YEARS OF EXPERIENCE IN THE X-RAY ANALYSIS OF MICROELECTRONIC COMPONENTS USED IN AIR FORCE SYSTEMS WAS USED TO ESTABLISH OUR SPECIFIC NEEDS IN THIS VERY IMPORTANT AREA.

"MICROELECTRONIC CIRCUITS ARE CONSTRUCTED WITH THIN LAYERS OF ONE ELEMENT SUPERIMPOSED ON MUCH THICKER SILICON SUBSTRATES. THIS RESULTS IN WIDELY VARYING X-RAY COUNT RATES FROM THE SAME REGION UNDER BOMBARDMENT BY THE ELECTRON BEAM. IT IS NOT UNUSUAL TO SEE VARIATIONS FROM LESS THAN 10 COUNTS PER SECOND (CPS) TO OVER 20,000 CPS. THESE VARIATIONS RESULTED IN OUR REQUIREMENT FOR A 6 DECADE LOG DISPLAY FEATURE ON THE MCA. NUCLEAR DIODES OFFERED A 4 DECADE LOG DISPLAY CAPABILITY WHICH DOESN'T FILL OUR NEEDS.

"NOTE: THESE VARIATIONS ARE OBSERVED USING DISPERSIVE X-RAY OPTICS. ALTHOUGH THE ABSOLUTE VALUE OF THE COUNT RATES WILL TEND TO BE HIGHER USING NONDISPERSIVE DETECTION, THE RATIOS WILL REMAIN SIMILAR.

"(ABOVE STATEMENT IS ADDED FOR THE SAKE OF TECHNICAL ACCURACY.)

"OUR PROBLEMS IN THE ANALYSIS OF MICROELECTRONIC CIRCUITS HAVE DICTATED FURTHER REQUIREMENTS IN THE AREA OF DATA DISPLAY. WE, AS MOST PEOPLE IN THE AIR FORCE AND PRIVATE SECTORS OF SOLID STATE DEVICE TECHNOLOGY REALIZE, ARE INVOLVED IN THE RELIABILITY EVALUATION OF THESE TYPES OF CIRCUITS. ONE OF OUR MOST IMPORTANT JOBS IS THE DETERMINATION OF THE CHEMICAL CAUSES OF FAILURE OF THESE COMPONENTS. THIS IS ACCOMPLISHED MOST OFTEN BY COMPARING A GOOD DEVICE WITH A FAILED ONE, OR AN UNREACTED PORTION OF A SINGLE DEVICE TO ANOTHER REGION OF THE SAME DEVICE WHICH EXHIBITS SOME ABNORMALITY OR DEFECT.

"TWO REQUIREMENTS, NAMELY SPECTRUM STRIPPING AND THE ABILITY TO DISPLAY ONE SPECTRUM ABOVE ANOTHER DIRECTLY ON THE OSCILLOSCOPE SCREEN OF THE MCA, WERE DEVELOPED IN LIGHT OF THESE ANALYTICAL ACTIVITIES.

"NUCLEAR DIODES PROPOSED A SYSTEM WHICH DIDN'T HAVE THESE CAPABILITIES. THIS WOULD MEAN THAT THE X-RAY DATA GENERATED SO RAPIDLY WITH THIS SYSTEM WOULD HAVE TO BE MANIPULATED AND COMPARED BY HAND, THEREBY COMPROMISING ONE OF THE GREATEST ASSETS OF THIS TECHNIQUE - SPEED OF DATA ANALYSIS.

"THE QUESTION OF 'MODERATE SYSTEM RESOLUTION' IS ANOTHER FACTOR WHICH SHOULD BE MENTIONED. OUR REQUIREMENTS FOR SYSTEM RESOLUTION WERE 240 EV OR BETTER. THIS FIGURE WAS ARRIVED AT THROUGH CAREFUL CONSIDERATION OF OUR ANALYTICAL REQUIREMENTS AND DATA CONCERNING DETECTOR MATERIALS AVAILABLE DURING THE DEVELOPMENT OF OUR SPECIFICATIONS. ***

"A RESOLUTION OF 240 EV AT AN X-RAY PHOTON ENERGY OF 6.4 KEV IS SUFFICIENT FOR THE AIR FORCE'S NEEDS AND 'SPECIAL ORDER SYSTEMS' WERE CONSIDERED MORE THAN NECESSARY.

"THE PROBLEM OF RESOLUTION IS VERY COMPLEX WHEN ONE CONSIDERS THE MANY SYSTEM COMPONENTS WHICH CAN CAUSE LIMITATIONS IN THIS PARAMETER. WE ARE AWARE THAT THE VARIATION IN ENERGY BETWEEN THE ALUMINUM KA AND SILICON KA X-RAYS IS APPROXIMATELY 200 EV. BY SPECIFYING 240 EV RESOLUTION AT 6.4 KEV DOESN'T MEAN WE CANNOT RESOLVE THESE PEAKS. THE RESOLUTION OF A SOLID STATE DETECTOR INCREASES AS ONE GOES TO LOWER X RAY ENERGIES. THIS MEANS OUR SPECIFICATIONS WERE SUFFICIENT TO GIVE US RESOLUTION OF ALUMINUM AND SILICON X-RAYS WHICH OCCUR AT ENERGIES OF LESS THAN 2 KEV WHEN THESE ELEMENTS ARE PRESENT IN RATIOS OF 10:1. A PROBLEM CAN ARISE WHEN ONE OF THESE ADJACENT ELEMENTS IS PRESENT IN TRACE QUANTITIES. IF THIS EVENTUALITY IS SUSPECTED, NO NONDISPERSIVE SYSTEM, IRRESPECTIVE OF WHAT ITS RESOLUTION IS, CAN MATCH OUR DISPERSIVE X-RAY DETECTION SYSTEM ALREADY STANDARD ON OUR MICROPROBE. IT HAS A RESOLUTION CAPABLE OF SEPARATING ADJACENT ELEMENTS WHEN ONE OF THEM IS PRESENT IN ONLY FRACTIONAL PERCENTAGES.

"WHAT HOPEFULLY IS POINTED OUT IN THIS DISCUSSION IS THE FACT THAT, 'THIS MOST IMPORTANT PERFORMANCE SPECIFICATION ... ,' MUST BE CONSIDERED, AS IT WAS, IN LIGHT OF THE TYPE OF INSTRUMENT IN WHICH THE NONDISPERSIVE X-RAY DETECTION SYSTEM WILL BE USED.

"THE LOWER RESOLUTION SYSTEM PROPOSED BY NUCLEAR DIODES STILL DIDN'T MEET THE DATA HANDLING AND DISPLAY REQUIREMENTS. IN ADDITION, THE LOWER RESOLUTION WAS ACHIEVED BY DECREASING THE SIZE OF THE DETECTOR. THIS STANDARD METHOD OF ACHIEVING HIGHER RESOLUTION BY DECREASING DETECTOR SIZE RESULTED IN A SOLID STATE DIODE DETECTOR ONE-HALF THE SIZE WE SPECIFIED. WE NEED THE LARGEST SIZE DETECTOR, COMPATIBLE WITH OUR RESOLUTION REQUIREMENTS, IN ORDER TO HAVE THE NONDISPERSIVE SYSTEM BE COMPATIBLE WITH FUTURE PLANNED MODIFICATIONS OF OUR MICROPROBE. *** "

OUR DECISIONS HAVE CONSISTENTLY HELD THAT THE ESTABLISHMENT OF SPECIFICATIONS REFLECTING THE NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCY. WHETHER A PARTICULAR BID MEETS THE ADVERTISED SPECIFICATIONS IN ALL MATERIAL RESPECTS IS A RESPONSIBILITY VESTED IN THE PROCUREMENT OFFICIALS AND WE WILL NOT QUESTION A DETERMINATION OF RESPONSIVENESS TO SPECIFICATIONS IN THE ABSENCE OF EVIDENCE ESTABLISHING THAT THE PROCUREMENT OFFICIALS ABUSED THE DISCRETION VESTED IN THEM. B-167917, DECEMBER 16, 1969, AND 49 COMP. GEN. 195 (1969), CITING 47 ID. 409 (1968). "AS A MATTER OF POLICY, WE WILL ACCEPT THE JUDGMENT OF THE TECHNICAL PERSONNEL OF THE AGENCY INVOLVED WHERE THERE IS A DIFFERENCE OF EXPERT TECHNICAL OPINION, UNLESS SUCH JUDGMENT IS SHOWN TO BE CLEARLY AND UNMISTAKABLY IN ERROR." 49 ID. 195, 198 (1969), CITING 40 ID. 35 (1960) AND 48 ID. 62 (1968).

IN VIEW OF THE PROCURING AUTHORITY'S COMPREHENSIVE JUSTIFICATION FOR THE INCLUSION OF THE CONTESTED TECHNICAL SPECIFICATIONS AND YOUR FAILURE TO PRESENT ANY SUBSTANTIAL EVIDENCE SUPPORTING YOUR ALLEGATIONS THAT THE GOVERNMENT OVERSTATED ITS NEEDS OR MISTAKENLY EMPHASIZED NONCRITICAL DESIGN AND PERFORMANCE CHARACTERISTICS AND UNDERSPECIFIED OTHER MORE CRITICAL CHARACTERISTICS, WE DENY YOUR PROTEST.