B-152189, OCT. 15, 1963

B-152189, OCT. 15, 1963

TO BROOKS INSTRUMENT COMPANY, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF AUGUST 2 AND LETTER DATED SEPTEMBER 4, 1963, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY BIDDER OTHER THAN TO YOUR FIRM UNDER INVITATION NO. AMC/A/36-038-63- 500/SP).

THE FRANKFORD ARSENAL, PHILADELPHIA, PENNSYLVANIA, BY THE REFERRED TO INVITATION REQUESTED BIDS FOR FURNISHING A MAXIMUM ESTIMATED QUANTITY OF FOUR LIQUID FLOWMETER CALIBRATORS. THE REQUIRED CALIBRATOR WAS DESCRIBED IN THE INVITATION AS FOLLOWS:

"LIQUID FLOWMETER CALIBRATOR, PLUS ACCESSORIES LISTED ON DRAWING, ORD PART NO. 7910110 IN ACCORDANCE WITH DRG.NO. A7910110, REV.O, SPECIFICATION MIL-F-45133B (CATEGORY C) CERTIFICATION AND ALL DATA LISTED ON TECHNICAL DATA PACKAGE LIST NO. 7910110 DATED 12-6-62, (COX INSTRUMENT MODEL 311AHT OR EQUAL).'

THREE BIDS WERE RECEIVED AND OPENED ON MAY 13, 1963. THE LOWEST BID IN THE AMOUNT OF $29,398 PER UNIT WAS SUBMITTED BY THE SPACE INSTRUMENTATION CORPORATION. HOWEVER, THAT FIRM'S BID WAS REJECTED AS BEING NONRESPONSIVE TO THE INVITATION. THE NEXT LOWEST BID IN THE AMOUNT OF $31,500 PER UNIT WAS SUBMITTED BY YOUR FIRM AND YOU OFFERED TO FURNISH BROOKS DYNAMIC WEIGHT-TIME CALIBRATOR NO. MODEL SERIES 9900. WITH YOUR BID YOU SUBMITTED CERTAIN DRAWINGS AND A LETTER DATED MAY 10, 1963, IN WHICH YOU MADE THE FOLLOWING EXCEPTIONS TO THE SPECIFICATIONS:

"A. DUMP TIME: 60 SECONDS MAXIMUM INSTEAD OF 25 SECONDS MAXIMUM.

B. PUMPS: ONE PUMP INSTEAD OF TWO PUMPS.'

THE THIRD BID IN THE AMOUNT OF $40,162.50 WAS SUBMITTED BY THE COX INSTRUMENTS CORPORATION.

A TECHNICAL EVALUATION INDICATED THAT YOUR BID WAS NONRESPONSIVE IN THAT THE EQUIPMENT YOU PROPOSED TO FURNISH DID NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS. ON JUNE 26, 1963, A CONTRACT WAS AWARDED TO THE COX INSTRUMENTS CORPORATION.

IN YOUR LETTER OF SEPTEMBER 4, 1963, YOU REFER TO A LETTER DATED JUNE 11, 1963, FROM THE PHILADELPHIA PROCUREMENT DISTRICT, U.S. ARMY, IN WHICH YOU WERE ADVISED THAT A RECOMMENDATION FOR AN AWARD OF A CONTRACT UNDER THE SUBJECT INVITATION COULD NOT BE MADE TO YOUR FIRM FOR THE FOLLOWING REASONS:

"A. TECHNICAL ABILITY

B. PRODUCTION ABILITY

C. INABILITY TO MEET REQUIRED SCHEDULE.'

YOU PROTEST THE REJECTION OF YOUR BID ON THE BASIS OF THE ABOVE ELEMENTS OF RESPONSIBILITY. IN HIS REPORT THE CONTRACTING OFFICER STATES THAT REPRESENTATIVES OF YOUR FIRM HAVE BEEN ADVISED AT NUMEROUS TIMES THAT THE BID OF YOUR FIRM WAS NOT REJECTED BECAUSE OF FACTORS RELATING TO YOUR FIRM'S RESPONSIBILITY BUT BECAUSE OF THE MATERIAL EXCEPTIONS TO THE DUMP TIME REQUIREMENT AND NUMBER OF PUMPS WHICH WERE MADE BY YOUR FIRM IN YOUR COVER LETTER OF MAY 10, 1963. ANOTHER REASON GIVEN FOR REJECTION OF YOUR BID WAS THAN AN EXAMINATION BY THE ENGINEERING DIVISION, FRANKFORD ARSENAL, OF THE DATA SUBMITTED BY YOUR FIRM INDICATED THAT THE TECHNICAL AND ENGINEERING INFORMATION SUBMITTED BY YOU WAS NOT SUFFICIENT TO DETERMINE THE PERFORMANCE CAPABILITY OF THE ITEM OFFERED BY YOUR FIRM, AS WELL AS ITS EQUIVALENCE TO THE COX INSTRUMENT MODEL 311AHT, WHICH WAS CITED AS A BRAND NAME.

YOU STATE THAT IN THE LETTER WHICH ACCOMPANIED YOUR BID YOU STATED WITHOUT QUALIFICATION THE THE BROOKS DYNAMIC WEIGHT-TIME LIQUID FLOWMETER CALIBRATOR WHICH YOU WERE OFFERING WOULD IN ALL RESPECTS MEET OR EXCEED THE EXACT FUNCTIONAL REQUIREMENTS AS OUTLINED IN ONE OF THE GOVERNMENT'S DRAWINGS. ALSO YOU STATED THAT YOUR FIRM RECENTLY SUBMITTED A PROPOSAL TO THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) AGAINST THE SPECIFICATIONS FOR A COX MODEL 311AHT AND THAT YOU WERE AWARDED A CONTRACT FOR EQUIPMENT SIMILAR TO THAT REQUESTED BY THE FRANKFORD ARSENAL. REGARD TO YOUR OFFER TO FURNISH AN ITEM WHICH WILL MEET OR EXCEED THE EXACT FUNCTIONAL REQUIREMENTS OUTLINED IN THE SPECIFICATIONS, SUCH OFFER DOES NOT CURE AN OTHERWISE NONRESPONSIVE BID. THE RESPONSIVENESS OF A BID MUST BE DETERMINED FROM THE CONTENTS OF THE BID ITSELF AT THE TIME OF THE BID OPENING. IN REGARD TO YOUR REFERENCE TO A RECENT CONTRACT WITH NASA FOR SIMILAR EQUIPMENT, SUBSEQUENT ACTIONS OF THE BIDDER OR THE CONTRACTING OFFICE CANNOT BE CONSIDERED IN DISPOSING OF THE QUESTION OF NONRESPONSIVENESS. SEE 41 COMP. GEN. 366.

IT IS NOT, OF COURSE, WITHIN THE PROVINCE OF OUR OFFICE TO DRAFT SPECIFICATIONS FOR THE CONTRACTUAL NEEDS OF ADMINISTRATIVE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT. 38 COMP. GEN. 71, 75. THUS, WHERE IT IS SHOWN THAT AN ARTICLE OFFERED BY A BIDDER FAILS TO MEET THE SPECIFICATIONS IN SOME SPECIFIC RESPECT, A DETERMINATION THAT SUCH BID SHOULD BE REJECTED WOULD NOT BE QUESTIONED BY OUR OFFICE UNLESS THE FAILURE TO MEET SPECIFICATIONS RELATES TO A TRIVIAL OR IMMATERIAL REQUIREMENT. HERE, HOWEVER, THE ADMINISTRATIVE AGENCY WHICH NEEDED THE ADVERTISED EQUIPMENT REPORTS THAT THE REQUIREMENTS AS TO DUMP TIME AND NUMBER OF PUMPS, TO WHICH YOU MADE EXCEPTIONS, ARE ESSENTIAL IN ORDER TO MEET ITS NEEDS. THIS IS A MATTER WHICH IS FOR DETERMINATION BY EXPERTS QUALIFIED IN THIS PARTICULAR FIELD. WE HAVE HELD THAT WHERE IT APPEARS THAT AN ADMINISTRATIVE AGENCY HAS MADE A BONA FIDE DETERMINATION OF ITS NEED FOR EQUIPMENT CONFORMING TO CERTAIN SPECIFICATIONS WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF SUCH AGENCY. THE FACT THAT IT MAY DEVELOP IN THESE CIRCUMSTANCES THAT SUCH EQUIPMENT IS MANUFACTURED BY ONLY ONE OR A FEW FIRMS WOULD NOT WARRANT OUR OFFICE IN QUESTIONING THE PROCUREMENT. ALSO WE DO NOT PERCEIVE ANY BASIS UPON WHICH WE COULD OBJECT TO THE AWARD TO A HIGHER BIDDER SINCE THE AGENCIES OF THE GOVERNMENT ARE NOT REQUIRED TO MAKE PURCHASES OF EQUIPMENT IN FULFILLING THEIR REQUIREMENTS SIMPLY BECAUSE A LOWER PRICE CAN BE OBTAINED IN THAT WAY.

IN VIEW OF THE DETERMINATION MADE BY THE USING AGENCY IN THIS CASE WE FIND NO PROPER BASIS FOR CONCLUDING THAT THE AWARD TO THE COX INSTRUMENTS CORPORATION WAS IMPROPER.