B-173486, JAN 5, 1972

B-173486, JAN 5, 1972

BID PROTEST - BIDDER RESPONSIVENESS - SPECIFICATIONS DECISION DENYING PROTEST OF ANGSTROM, INC., LOW BIDDER, AGAINST AWARD OF A CONTRACT TO BAIRD-ATOMIC, INC., UNDER AN IFB ISSUED BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C., FOR THE PROCUREMENT OF A SPECTROMETER, VACUUM, DIRECT READER, AND THE TRAINING OF GOVERNMENT PERSONNEL AT THE INSTALLATION SITE. PROTESTANT'S BID WAS REJECTED AS NONRESPONSIVE TO THE SPECIFICATIONS BECAUSE BOTH THE CONTRACTING OFFICER AND THE GOVERNMENT'S TECHNICAL EVALUATORS FELT THAT PROTESTANT'S EQUIPMENT DID NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS. SINCE THE COMP. GEN. CAN FIND NO BASIS FOR DISAGREEING WITH THIS CONCLUSION, THERE IS NO LEGAL JUSTIFICATION FOR OBJECTING TO THE AWARD.

TO ANGSTROM, INC.:

THIS IS IN REPLY TO YOUR LETTER OF JULY 2, 1971, PROTESTING THE AWARD OF A CONTRACT TO A HIGHER BIDDER UNDER INVITATION FOR BIDS N00600-71-B 0258, ISSUED BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C.

THE SOLICITATION WAS FOR THE PROCUREMENT OF A SPECTROMETER, VACUUM, DIRECT READER (INCLUDING INSTALLATION AND CALIBRATION SERVICES); DATA AS SPECIFIED; AND A MINIMUM OF TWENTY DAYS TRAINING OF GOVERNMENT PERSONNEL AT THE INSTALLATION SITE. THE INVITATION ALSO LISTED AN OPTION ITEM COVERING REPAIR PARTS FOR THE SPECTROMETER, AND BIDDERS WERE REQUESTED TO SUBMIT A RECOMMENDED LIST OF REPAIR PARTS FOR THE ITEM.

BIDS WERE OPENED ON JUNE 22, 1971, AND YOUR BID OF $81,200 WAS THE LOWEST RECEIVED. ATTACHED TO YOUR BID WAS A LIST OF RECOMMENDED SPARE PARTS AS REQUESTED BY THE SOLICITATION. THE LIST WAS CAPTIONED "RECOMMENDED REPAIR PARTS FOR ANGSTROM V-70 VACUUM SPECTROMETER." IT IS REPORTED THAT THE BUYER WAS AWARE THAT AN UNMODIFIED V-70 SPECTROMETER COULD NOT PROVIDE THE ACCURACY AND COVERAGE, CONCERNING LINEAR DISPERSION AND SPECTRAL COVERAGE, REQUIRED BY PARAGRAPH 3.3.3.2 OF THE SPECIFICATIONS.

THE RECORD SHOWS THAT AFTER BID OPENING THE BUYER ADVISED YOUR COMPANY OF THE POSSIBILITY OF A MISTAKE AND REQUESTED THAT YOU REVIEW YOUR BID, PARTICULARLY WITH RESPECT TO THE ABOVE-MENTIONED REQUIREMENTS OF THE SPECIFICATIONS. IN RESPONSE TO THIS INQUIRY, YOU NOTED THAT YOUR FIRM WAS CONCURRENTLY COMPETING IN A NEGOTIATED PROCUREMENT FOR A SPECTROMETER INVOLVING THE SAME PROCUREMENT ACTIVITY AND TECHNICAL EVALUATORS. APPEARS THAT PRIOR TO THE OPENING OF BIDS YOU HAD SUBMITTED, IN CONNECTION WITH THE NEGOTIATED PROCUREMENT, A CLARIFICATION DATED JUNE 16 REGARDING THE IDENTICAL SPECIFICATIONS WHICH WERE QUESTIONED ON THE ADVERTISED PROCUREMENTS. IT WAS YOUR POSITION THAT YOUR STANDARD INSTRUMENTATION WITH MINOR MODIFICATIONS WOULD EXCEED THE MINIMUM GENERAL REQUIREMENTS FOR AN INSTRUMENT WHICH WOULD FULFILL THE NEEDS OF THE RECEIVING ACTIVITY.

THE CONTRACTING OFFICER HAS REPORTED THAT ALL AVAILABLE INFORMATION REGARDING THE V-70 SPECTROMETER WAS EVALUATED ON JUNE 30, 1971, AND YOUR BID WAS REJECTED BECAUSE YOUR SPECTROMETER, EVEN AS MODIFIED IN YOUR PROPOSAL SUBMITTED ON THE NEGOTIATED PROCUREMENT, WAS NONRESPONSIVE TO THE ADVERTISED SPECIFICATIONS. SPECIFICALLY YOUR SPECTROMETER (1) DID NOT MEET THE REQUIREMENTS FOR LINEAR DISPERSION AND SPECTRAL COVERAGE IN SPECIFICATION PARAGRAPH 3.3.3.2; (2) PROVIDED A ONE PERCENT DEVIATION EXCEEDING THE LIMIT FOR HIGHER CONCENTRATION RANGES REQUIRED BY SPECIFICATION PARAGRAPH 3.5.2; AND (3) DID NOT PROVIDE THE COLD TRAP AND REFRIGERATION UNIT REQUIRED BY SPECIFICATION PARAGRAPH 3.3.4.2.

CONTRACT AWARD UNDER THE ADVERTISED PROCUREMENT WAS MADE ON JUNE 30 TO BAIRD-ATOMIC, INC., IN THE AMOUNT OF $90,943. YOU HAVE CONTESTED THE AWARD TO THE HIGHER BIDDER SINCE YOU BELIEVE ALL OF THE ADVERTISED REQUIREMENTS WOULD HAVE BEEN MET AT THE LOWEST COST TO THE GOVERNMENT BY THE ACCEPTANCE OF YOUR BID. IN SUPPORT OF YOUR POSITION, YOU STATE THAT SINCE YOUR PROPOSAL ON THE NEGOTIATED PROCUREMENT WAS ACCEPTABLE TO THE GOVERNMENT THERE CAN BE NO JUSTIFICATION FOR FINDING YOUR BID ON THE ADVERTISED PROCUREMENT NONRESPONSIVE TO THE SAME ADVERTISED SPECIFICATIONS.

THE MERE INCLUSION OF PART OR MODEL NUMBERS IN A BID SHOULD NOT RESULT IN AN AUTOMATIC DETERMINATION THAT THE BID IS NONRESPONSIVE. EACH CASE SHOULD BE JUDGED ON ITS MERITS, AND DATA AVAILABLE PRIOR TO BID OPENING MAY BE USED TO RESOLVE ANY DOUBT AS TO WHETHER THE BID IS RESPONSIVE. SEE B-170908, MARCH 5, 1971 AND 50 COMP. GEN. 8 (1970). UNLESS ALL DOUBT IS ELIMINATED AS TO WHETHER THE ITEM OFFERED WILL MEET THE APPLICABLE SPECIFICATIONS, THE BID MUST BE REJECTED AS NONRESPONSIVE.

EVEN THOUGH YOUR REFERENCE TO THE V-70 SPECTROMETER WAS MADE IN CONNECTION WITH THE SPARE PARTS BEING OFFERED, WE FEEL THIS INCLUSION CREATED AN AMBIGUITY, AND THEREFORE QUALIFIED YOUR BID, BECAUSE OF THE OBVIOUS DIRECT CONNECTION AND INTERCHANGEABILITY REQUIRED BETWEEN THE SPARE PARTS AND THE BASIC EQUIPMENT BEING PROCURED. WHILE WE DO NOT CONSTRUE YOUR OFFER AS ONE FOR AN UNMODIFIED V-70, WE FEEL AT BEST YOUR BID EVIDENCED THAT YOU WERE OFFERING TO MEET THE SPECIFICATIONS INSOFAR AS IT COULD BE ACCOMPLISHED BY SOME MODIFIED VERSION OF THE V-70. IT WAS THEREFORE INCUMBENT UPON THE CONTRACTING OFFICER TO EFFECT A REVIEW OF THE DATA AVAILABLE TO THE GOVERNMENT PRIOR TO THE TIME FOR BID OPENING TO ATTEMPT TO RESOLVE THE AMBIGUITY. SUCH A REVIEW WAS EFFECTED IN THIS CASE, HOWEVER, THE GOVERNMENT'S TECHNICAL EVALUATORS WERE OF THE OPINION THAT THE WEIGHT OF AVAILABLE EVIDENCE INDICATED THAT YOUR EQUIPMENT WOULD NOT CONFORM TO THE ADVERTISED SPECIFICATIONS FOR THE REASONS MENTIONED ABOVE. SINCE WE CANNOT DISAGREE WITH THIS CONCLUSION, WE FIND NO LEGAL JUSTIFICATION FOR OBJECTING TO THE AWARD TO THE NEXT LOW BIDDER.

AS TO THE ACCEPTABILITY OF YOUR EQUIPMENT IN THE COMPANION NEGOTIATED PROCUREMENT, THE NAVY'S REPORT INDICATES THAT YOUR PROPOSAL WAS CONSIDERED ACCEPTABLE ONLY AS A RESULT OF ORAL NEGOTIATIONS CONDUCTED ON JUNE 30, 1971. SUCH NEGOTIATIONS, HAVING OCCURRED AFTER BID OPENING, WERE NOT FOR CONSIDERATION IN DETERMINING WHETHER YOUR V-70 WAS CAPABLE OF BEING MADE RESPONSIVE TO THE SPECIFICATIONS FOR THE ADVERTISED PROCUREMENT. MOREOVER, IT IS REPORTED THAT IF YOUR OFFER IN THE NEGOTIATED PROCUREMENT HAD BEEN LOW, CERTAIN CHANGES WOULD HAVE BEEN REQUIRED IN THE GOVERNMENT'S SPECIFICATIONS PRIOR TO ACCEPTANCE OF YOUR PROPOSAL.

ACCORDINGLY, YOUR PROTEST IS DENIED.