B-156122, JUN. 30, 1965

B-156122, JUN. 30, 1965

TO RIXON ELECTRONICS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 10, 1965, WITH ENCLOSURE, PROTESTING THE CANCELLATION OF INVITATION NO. WA5M-5 444-B1 BY THE FEDERAL AVIATION AGENCY AND TO A LETTER DATED MARCH 24, 1965, IN YOUR BEHALF, FROM ROSS, STARK, MATZKIN AND DAY, ATTORNEYS AT LAW, IN FURTHER REGARD TO THE PROTEST. RECEIPT ALSO IS ACKNOWLEDGED OF A LETTER DATED APRIL 19, 1965, FROM THE ATTORNEYS REGARDING THE MATTER.

INVITATION NO. WA5M-5-444-B1, ISSUED ON DECEMBER 7, 1964, BY THE FEDERAL AVIATION AGENCY, INSTALLATION AND MATERIEL SERVICE, PROCUREMENT SERVICE BRANCH, WASHINGTON, D.C., SOLICITED BIDS FOR THE FURNISHING OF FOUR DATA TRANSMISSION UNITS, TOGETHER WITH CERTAIN SUPPORTING EQUIPMENT, INSTRUCTION BOOKS, AND SPARE PARTS. THE BIDS WERE SOLICITED ON A BRAND NAME "OR EQUAL" BASIS AND THE EQUIPMENT WAS DESCRIBED IN ITEM NO. 1 OF THE INVITATION AS FOLLOWS:

"DIGITAL DATA TRANSFER MODEM SYSTEM, SIMPLEX MEDIUM-SPEED, LENKURT MODEL 26B, OR EQUAL, IN ACCORDANCE WITH THE MAIN AND REQUIRED CHARACTERISTICS ATTACHED HERETO, * * *.'

THE MAIN AND REQUIRED CHARACTERISTICS FOR THE EQUIPMENT WERE SET FORTH IN AN ATTACHMENT TO THE INVITATION FOR BIDS AND, IN ORDER TO DETERMINE BRAND NAME EQUALITY, THE FEDERAL AVIATION AGENCY REQUIRED THE SUBMISSION OF DESCRIPTIVE LITERATURE AS A PART OF THE BIDS. THE FOLLOWING BIDS WERE RECEIVED:

TABLE

CONTRACTOR AMOUNT

RIXON ELECTRONICS, INC. $67,960.28

GENERAL DYNAMICS CORPORATION 74,098.00

LENKURT ELECTRIC COMPANY 75,421.00

ACF ELECTRONICS DIVISION 75,803.56

THE BID OF THE LENKURT ELECTRIC COMPANY WAS DETERMINED TO BE NONRESPONSIVE BECAUSE IT TOOK EXCEPTION TO CERTAIN PROVISIONS OF THE SPECIFICATIONS. AFTER REVIEW OF THE DESCRIPTIVE LITERATURE FURNISHED BY YOU AND THE OTHER TWO BIDDERS THE AGENCY ALSO DETERMINED THAT THESE THREE BIDS WERE NONRESPONSIVE, AND THEREFORE WERE REJECTED. IT IS REPORTED THAT THE REQUIREMENT WAS THE SUBJECT OF REQUEST FOR PROPOSALS NO. WA5M-5- 444/REV.), LATER ISSUED BY THE FEDERAL AVIATION AGENCY.

IN SUPPORT OF YOUR PROTEST IT IS POINTED OUT THAT YOU SUBMITTED THE LOW BID, THAT YOUR BID NOW HAS BEEN DISCLOSED, AND YOU CONTEND THAT IT WAS IN COMPLIANCE WITH THE SPECIFICATION REQUIREMENTS. THE ATTORNEYS SET FORTH IN CONSIDERABLE DETAIL STATEMENTS IN SUPPORT OF THE POSITION THAT THE EQUIPMENT YOU PROPOSED TO FURNISH DID IN FACT COMPLY WITH THOSE PARTS OF THE SPECIFICATIONS TO WHICH THE FEDERAL AVIATION AGENCY TOOK EXCEPTIONS. THE ATTORNEYS ALSO CONTEND THAT IN THE SUBSEQUENT REQUEST FOR PROPOSALS NO. WA5M-5-444/REV.) THE AGENCY USED SUBSTANTIALLY THE SAME REQUIREMENTS.

OUR OFFICE CONSISTENTLY HAS HELD THAT THE DETERMINATION AS TO WHETHER A PARTICULAR PRODUCT OFFERED BY A BIDDER COMPLIES WITH SPECIFICATION REQUIREMENTS IS PRIMARILY A FUNCTION OF THE DEPARTMENT OR AGENCY CHARGED WITH THE ADMINISTRATION OF THE CONTRACT. SUCH DETERMINATION MUST, OF NECESSITY, BE BASED UPON FACTUAL INFORMATION AVAILABLE TO THE DEPARTMENT OR AGENCY PRIOR TO AWARD AND, IN THE ABSENCE OF A SHOWING OF BAD FAITH OR THE LACK OF A REASONABLE FACTUAL BASIS FOR THE DETERMINATION OUR OFFICE WILL NOT OBJECT TO THE CONCLUSION REACHED. IT IS REPORTED THAT AFTER A REVIEW OF THE DESCRIPTIVE LITERATURE FURNISHED WITH YOUR BID THE FEDERAL AVIATION AGENCY DETERMINED YOUR BID TO BE NONRESPONSIVE BECAUSE IT FAILED TO SHOW THAT THE EQUIPMENT YOU PROPOSED TO FURNISH WAS EQUAL TO THE LENKURT MODEL 26B, AS SPECIFIED, WHEN EVALUATED IN ACCORDANCE WITH THE CHARACTERISTICS AND PERFORMANCE REQUIREMENTS OF THE INVITATION FOR BID. MORE SPECIFICALLY, THE FEDERAL AVIATION AGENCY ADVISES THAT THE FOLLOWING DEVIATIONS FROM SUCH REQUIREMENTS WERE NOTED IN THE DESCRIPTIVE LITERATURE SUBMITTED BY YOU:

"/A) PARAGRAPH 3.1.2 OF THE CHARACTERISTICS AND PERFORMANCE REQUIREMENTS REQUIRES THAT: "... THE EQUIPMENT SHALL BE MODULAR PLUG IN CONSTRUCTION AND LIKE MODULES SHALL BE FULLY INTERCHANGEABLE. SERVICE EXTENSION UNITS SHALL BE PROVIDED FOR EACH TYPE OF MODULE AT EACH TERMINAL OF A SYSTEM FOR USE DURING MAINTENANCE AND ADJUSTMENT OF THE EQUIPMENT....' ALTHOUGH THE RIXON DESCRIPTIVE LITERATURE ON PAGE 2-4 INDICATES THAT ITS MODULES CONTAIN "NO MAINTENANCE ADJUSTMENTS," NOTHING IN RIXON'S DESCRIPTIVE LITERATURE INDICATES THAT SERVICE EXTENSION UNITS FOR SERVICING THE PLUG- IN MODULES WILL BE FURNISHED, NOR ARE THESE UNITS INCLUDED IN THE SPARE PARTS LIST. THE PURPOSE OF THE MODULE EXTENSION UNITS IS TO PERMIT EQUIPMENT MAINTENANCE AND ADJUSTMENT WITH BOTH SIGNALS AND POWER SUPPLIED FROM THE TERMINAL EQUIPMENT. THIS FEATURE IS AVAILABLE AND THE SERVICING CONCEPT IS FEASIBLE IN THE LENKURT 26B EQUIPMENT. IN ADDITION, PARAGRAPH 3.7 OF THE CHARACTERISTICS AND PERFORMANCE REQUIREMENTS SPECIFIES A MAXIMUM ALLOWABLE MEAN-TIME-TO-REPAIR (MTTR) OF 10 MINUTES; WITHOUT A SPARE MODULE FOR EACH TYPE AT A TERMINAL TO REPLACE A FAILED MODULE, IT IS NOT POSSIBLE TO MEET THE 10 MINUTE MTTR REQUIREMENT.

"/B) PARAGRAPH 3.4.1 OF THE CHARACTERISTICS AND PERFORMANCE REQUIREMENTS REQUIRES THAT WHEN THE EQUIPMENT IS OPERATING AT A SYNCHRONOUS DATA TRANSFER RATE OF 2,400 BITS PER SECOND,"... THE BIT ERROR RATE SHALL NOT EXCEED 1 TIMES 10 PLUS 5 WITH A 16 DB SIGNAL-PLUS NOISE TO NOISE RATIO AT THE RECEIVER DATA INPUT TERMINALS.' RIXON, IN ORDER TO SHOW THAT ITS EQUIPMENT MEETS THIS ERROR RATE REQUIREMENT, ON PAGE 3-1 OF ITS DESCRIPTIVE LITERATURE, STATES THAT:

"THE MITRE CORPORATION OF BEDFORD, MASSACHUSETTS, RECENTLY COMPLETED AN EXTENSIVE TEST AND EVALUATION PROGRAM OF ALL AVAILABLE DATA MODEMS. AS A RESULT OF THIS PROGRAM, THE MITRE CORPORATION HAS RECOMMENDED ONLY FOUR OF THE MODEMS TESTED; BOTH THE RIXON SEBIT-24 AND THE SEBIT-36 ARE ON THE RECOMMENDED LIST.'

CONTRARY TO THE STATEMENT CONTAINED IN RIXON'S DESCRIPTIVE LITERATURE, THE MITRE PORT,"LABORATORY TESTS OF PROPOSED VOCOM MODEMS" (PROJECT 480.0), DATED MARCH 25, 1964, INDICATES THAT THE EQUIPMENT OFFERED BY RIXON, ITS SEBIT-24 MODEM, WILL NOT MEET THE ERROR RATE REQUIREMENTS.

"/C) PARAGRAPH 3.2 OF THE CHARACTERISTICS AND PERFORMANCE REQUIREMENTS REQUIRES THAT "... TERMINAL MODEM EQUIPMENT SHALL INTERCONNECT WITH THE CRVDP USING LOW IMPEDANCE COAXIAL CABLES AND OPERATE SATISFACTORILY WHEN SEPARATED BY DISTANCES UP TO 300 FEET (MODIFIES RS-232A, PARAGRAPH 1.4)....' THE RIXON DESCRIPTIVE LITERATURE FAILED TO SHOW THAT ITS EQUIPMENT WOULD MEET THE INTERFACE REQUIREMENTS NECESSITATED BY OPERATION AT DISTANCES UP TO 300 FEET USING LOW IMPEDANCE CABLE.'

THE PRIMARY DETERMINATION AS TO WHETHER AN OFFERED PRODUCT COMPLIES WITH SPECIFICATIONS NECESSARILY RESTS WITH THE ADMINISTRATIVE PERSONNEL, SINCE SUCH PERSONNEL HAVE A COMPLETE AND DETAILED KNOWLEDGE OF THE PRODUCT OR EQUIPMENT BEING PROCURED, AS WELL AS OF THE USE OR FUNCTION THEREOF. ENGINEERS AND TECHNICIANS ARE AVAILABLE TO THE ADMINISTRATIVE AGENCY TO EVALUATE THE PRODUCT BEING OFFERED BY REFERENCE TO THE DESCRIPTIVE LITERATURE, SPECIAL TESTS, ETC. SINCE IT IS NOT APPARENT FROM THE RECORD BEFORE US THAT THE ADMINISTRATIVE DETERMINATION IN THIS REGARD WAS ARBITRARY OR CAPRICIOUS OR WITHOUT SUBSTANTIAL BASIS, AND SINCE THE PROCUREMENT OFFICIALS ARE BETTER QUALIFIED THAN OUR OFFICE TO REVIEW AND EVALUATE THE SUFFICIENCY OF OFFERED PRODUCTS TO DETERMINE WHETHER THEY MEET THE QUALITATIVE REQUIREMENTS THAT ARE NEEDED, WE WILL NOT ATTEMPT TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING AGENCY. 17 COMP. GEN. 554; 19 ID. 587; 35 ID. 174.

THE LETTER DATED APRIL 19, 1965, FROM YOUR ATTORNEYS SETS FORTH IN SUBSTANTIAL DETAIL STATEMENTS ALLEGING THAT YOUR BID WAS DETERMINED TO BE NONRESPONSIVE EITHER AS A RESULT OF A COMPLETE MISINTERPRETATION BY THE FEDERAL AVIATION AGENCY OF THE INVITATION REQUIREMENTS REGARDING DESCRIPTIVE LITERATURE OR THAT THE DETERMINATION WAS ARBITRARY. THUS, AS TO THE EVALUATION OF THE PRODUCT OFFERED, THERE IS A COMPLETE DISAGREEMENT BETWEEN THE OPINION OF THE FEDERAL AVIATION AGENCY AND THE VIEWS PRESENTED BY YOUR ATTORNEYS. IN THE ABSENCE OF EVIDENCE TO SHOW THAT THE DETERMINATION OF THE FEDERAL AVIATION AGENCY WAS COMPLETELY ERRONEOUS OR ARBITRARY THE OPINION OF THE ADMINISTRATIVE OFFICIALS ON DISPUTED ISSUES OF THIS KIND MUST BE ACCEPTED BY THIS OFFICE. NO SUCH EVIDENCE HAS BEEN FURNISHED TO THIS OFFICE. THE ATTORNEYS HAVE SUBMITTED DETAILED ARGUMENTS IN SUPPORT OF THEIR CONTENTION THAT THE DETERMINATION WAS EITHER ERRONEOUS OR ARBITRARY BUT SUCH UNSUPPORTED STATEMENTS REPRESENT A PERSONAL INTERPRETATION AS TO THE EVALUATION FACTORS AND PROCEDURES WHICH SHOULD HAVE BEEN FOLLOWED.

MOREOVER, THE FACT THAT IDENTICAL PROCUREMENT REQUIREMENTS WERE SET FORTH BY THE FEDERAL AVIATION AGENCY IN THE SUBSTITUTED REQUEST FOR THE PROPOSALS NO. WA5M-5-444/REV.) DOES NOT RENDER THE REPROCUREMENT OBJECTIONABLE. IF IT IS NECESSARY TO REJECT ALL BIDS RECEIVED IN RESPONSE TO AN INVITATION, AS HERE, A READVERTISEMENT FOR THE PRODUCT WITH IDENTICAL SPECIFICATION REQUIREMENTS IS NOT PRECLUDED. TO HOLD OTHERWISE WOULD MEAN THAT THE GOVERNMENT WOULD HAVE TO ABANDON THE PROCUREMENT OF THE PARTICULAR ARTICLE OR SERVICES NEEDED OR REQUIRE THE GOVERNMENT TO REVISE THE SPECIFICATIONS TO THE EXTENT THAT PERFORMANCE CHARACTERISTICS OF THE PRODUCT WERE EITHER INFERIOR TO OR GREATER THAN THOSE ORIGINALLY REQUIRED.

FURTHERMORE, IT IS WELL SETTLED THAT IN MAKING AN AWARD OF A CONTRACT AFTER FORMAL ADVERTISING, THE PUBLIC INTEREST REQUIRES THAT THE CONTRACT BE AWARDED ONLY TO THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER. SINCE NO BIDDER WAS RESPONSIVE TO THE TERMS OF THE SPECIFICATIONS IN THE INSTANT CASE THE ADMINISTRATIVE AGENCY HAD NO ALTERNATIVE BUT TO REJECT ALL BIDS AND RESOLICIT THE PROCUREMENT. ALSO, ACCEPTING YOUR ATTORNEYS' CONTENTION IN THAT REGARD, WE SEE NO OBJECTION TO THE OMISSION FROM THE REVISED REQUEST FOR PROPOSALS OF A REQUIREMENT FOR INFORMATION TO INDICATE HOW THE PRODUCT WILL COMPLY WITH THE CHARACTERISTICS AND PERFORMANCE REQUIREMENTS OF THE SPECIFICATIONS. IT MUST BE ASSUMED THAT THE OVERALL SPECIFICATIONS FOR THE END PRODUCT ARE SPECIFICALLY SET FORTH IN THE REQUEST FOR PROPOSALS AND THE FEDERAL AVIATION AGENCY IS IN A POSITION TO REQUIRE STRICT COMPLIANCE THEREWITH REGARDLESS OF THE WAYS OR MEANS IT USES TO DETERMINE WHETHER SUCH COMPLIANCE WILL BE EFFECTED.

ACCORDINGLY, WE SEE NO LEGAL BASIS FOR OBJECTING TO THE ACTION TAKEN BY THE FEDERAL AVIATION AGENCY IN THE MATTER AND, THEREFORE, YOUR PROTEST IS DENIED.