B-176374, NOV 3, 1972

B-176374, NOV 3, 1972

BID PROTEST - SPECIFICATIONS - REQUIRED ITEMS DENIAL OF PROTEST BY MOLECTRON CORPORATION AGAINST THE PROPOSED AWARD OF A CONTRACT TO Q.E.D. CORPORATION UNDER AN IFB ISSUED BY THE DEPARTMENT OF THE ARMY, ABERDEEN PROVING GROUND, MD., FOR A TUNABLE INFRARED LASER SYSTEM. SINCE THE IFB PROVIDES FOR THE PROCUREMENT OF AN OPERABLE LASER SYSTEM, THE SPECIFICATION REASONABLY CONVEYED TO BIDDERS THAT A VACUUM PUMP WAS REQUIRED. THERE IS NOTHING TO INDICATE THAT Q.E.D. DID NOT BID ON THE BASIS OF SUPPLYING THE PUMP AND CONSEQUENTLY IT MUST BE CONCLUDED THAT BOTH BIDDERS WERE BIDDING ON THE SAME BASIS. THEREFORE, GAO WILL NOT QUESTION THE AWARD. SEE 43 COMP. GEN. 23 (1963).

TO MOLECTRON CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 1, 1972, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE PROPOSED AWARD OF A CONTRACT TO Q.E.D. CORPORATION, UNDER INVITATION FOR BIDS (IFB) NO. DAAD05-72-B 0111, ISSUED BY THE DEPARTMENT OF THE ARMY, ABERDEEN PROVING GROUND, MARYLAND.

FOR THE REASONS HEREINAFTER STATED, THE PROTEST OF MOLECTRON IS DENIED.

THE IFB REQUESTED BIDS ON A TUNABLE INFRARED LASER SYSTEM TO WHICH TWO BIDDERS, MOLECTRON AND Q.E.D. RESPONDED. THE COVER LETTER TO THE MOLECTRON BID CONTAINED THE FOLLOWING STATEMENT: "THE COMPLETE SYSTEM INCLUDES A 500 1/MIN. VACUUM PUMP; HOWEVER, IF YOU ALREADY HAVE A PUMP AVAILABLE THAT PROVIDES THIS CAPABILITY, WE HAVE INCLUDED AN ALTERNATE BID, FOR THE SYSTEM WITHOUT THIS VACUUM PUMP." MOLECTRON SUBMITTED A BID PRICE OF $20,835 FOR THE SYSTEM WITH A VACUUM PUMP AND AN ALTERNATE BID PRICE OF $19,985 FOR THE SYSTEM WITHOUT THE VACUUM PUMP, WHILE Q.E.D. QUOTED A BID PRICE OF $20,500 FOR THE SYSTEM.

YOU CONTEND THAT Q.E.D. WAS GIVEN THE OPPORTUNITY TO ALTER ITS SYSTEM DESCRIPTION AFTER THE BID OPENING. THIS CONTENTION STEMS FROM A TELEPHONE CONVERSATION BETWEEN THE PRESIDENT OF Q.E.D. AND A REPRESENTATIVE OF THE PROCURING ACTIVITY WHICH OCCURRED THREE DAYS AFTER BID OPENING. HOWEVER, THE CONTEMPORANEOUS RECORD OF THIS CONVERSATION SUBMITTED WITH THE DEPARTMENT OF THE ARMY REPORT ON THE PROTEST TO OUR OFFICE IS, IN OUR OPINION, AN ADEQUATE RESPONSE. THE RECORD IS AS FOLLOWS:

"MR. CORCORAN REQUESTED THE OTHER PRICES BID ON SUBJECT IFB. I READ MOLECTRON'S BID AND OPTION.

HE THEN ASKED IF THE VACUUM PUMP WAS REQUIRED, AND ADVISED THAT HIS BID INCLUDED $1,000.00 FOR A VACUUM PUMP FOR WHICH HE INTERPRETED THE SPECIFICATIONS AS REQUIRED."

YOU FURTHER CLAIM THAT Q.E.D. WOULD NOT BE A RESPONSIBLE CONTRACTOR BECAUSE IT DOES NOT HAVE THE ABILITY OR CAPABILITY TO PERFORM TO CONTRACT SINCE IT HAS NEVER DELIVERED THE ITEM BEFORE AND ALLEGEDLY DOES NOT HAVE A FULL TIME PRESIDENT. PRIOR TO THE AWARD OF ANY GOVERNMENT CONTRACT, THE CONTRACTING OFFICER MUST MAKE AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY IN LIGHT OF THE MINIMUM STANDARDS PRESCRIBED BY THE ARMED SERVICES PROCUREMENT REGULATION. OUR OFFICE HAS CONSISTENTLY HELD THAT SUCH DETERMINATION WILL NOT BE QUESTIONED ABSENT A CLEAR SHOWING OF BAD FAITH, OR LACK OF A REASONABLE BASIS THEREFOR. A REPRESENTATIVE OF THE DEPARTMENT OF THE ARMY ADVISED OUR OFFICE ON SEPTEMBER 13, 1972, THAT A PREAWARD SURVEY INTO THE CAPABILITY OF Q.E.D. TO PERFORM THE CONTRACT WAS CONDUCTED AND RESULTED IN A RECOMMENDATION OF COMPLETE AWARD. YOU HAVE PRESENTED NO INFORMATION OF THE NATURE WHICH WOULD WARRANT OUR OFFICE TO QUESTION THE DETERMINATION OF THE CONTRACTING OFFICER.

THE PRINCIPAL THRUST OF YOUR PROTEST CONCERNS YOUR CLAIM THAT THE SPECIFICATIONS DO NOT REQUIRE THAT THE BIDDER OFFER A VACUUM PUMP. THAT CONNECTION, YOU STATE THAT UNDER PRIOR CONTRACTS YOUR FIRM HAS DELIVERED LASERS WITHOUT VACUUM PUMPS. THEREFORE, YOU CONTEND THAT YOUR ALTERNATE BID, AS THE LOWEST BID RECEIVED, SHOULD BE CONSIDERED FOR PURPOSES OF AWARD.

ALTHOUGH THE SPECIFICATIONS IN THE IFB DID NOT STATE THAT A VACUUM PUMP WAS REQUIRED AS A PART OF THE EQUIPMENT, THE DEPARTMENT OF THE ARMY HAS POINTED OUT THAT THE IFB PROVIDED FOR THE PROCUREMENT OF A "SYSTEM" WHICH IMPLIES ALL THE COMPONENTS NECESSARY TO MAKE IT OPERABLE WILL BE FURNISHED, INCLUDING A VACUUM PUMP. FURTHER, THE TECHNICAL PERSONNEL OF THE REQUIRING ACTIVITY HAVE ADVISED THAT THE ABSENCE OF A VACUUM PUMP WOULD DEFEAT THE SPECIFICATION REQUIREMENT FOR AN OPERABLE SYSTEM. OUR ATTENTION IS ALSO INVITED TO THE FOLLOWING STATEMENT CONTAINED IN THE SPECIFICATIONS, WHICH IS CONSIDERED TO PROVIDE SUPPORT FOR THE CONCLUSION THAT A VACUUM PUMP WAS REQUIRED AS AN INTEGRAL FEATURE OF THE DESIRED SYSTEM: "A SAFETY RELIEF VALVE SHALL BE PROVIDED TO PREVENT OVERPRESSURE IN THE EVENT OF VACUUM PUMP FAILURE." ALSO, IT IS NOTED THAT THE SPECIFICATIONS PRESCRIBE THAT THE SYSTEM DEMONSTRATE SPECIFIED PERFORMANCE CRITERIA PRIOR TO ACCEPTANCE WHICH IT IS OUR UNDERSTANDING COULD NOT BE ACCOMPLISHED WITHOUT THE VACUUM PUMP.

IN THE CIRCUMSTANCES, WE CONCLUDE THAT THE SPECIFICATIONS REASONABLY CONVEYED TO BIDDERS THAT A VACUUM PUMP WAS A NECESSARY PART OF THE LASER SYSTEM. MOREOVER, IT DOES NOT APPEAR THAT YOUR FIRM WAS PREJUDICED BY THE LACK OF SPECIFICITY IN THE IFB INASMUCH AS IT IS REASONABLE TO CONCLUDE THAT Q.E.D. OBTAINED NO ADVANTAGE IN VIEW OF THE FOREGOING ANALYSIS OF THE SPECIFICATIONS WHICH WOULD REQUIRE THE PUMP AS A PART OF THE SYSTEM AND THERE IS NOTHING TO INDICATE THAT IT DID NOT BID ON THAT BASIS. BOTH BIDDERS ARE DEEMED TO HAVE BID ON THE SAME BASIS AND OUR OFFICE THEREFORE WILL NOT QUESTION AN AWARD TO Q.E.D. SEE 43 COMP. GEN. 23, 26 (1963); B- 170698, MAY 4, 1971; AND B 170768(1), FEBRUARY 17, 1971.