B-167066, OCT. 28, 1969

B-167066, OCT. 28, 1969

SPECIFICATIONS--CONFORMABILITY OF EQUIPMENT, ETC; OFFERED--TECHNICAL DEFICIENCIES--ADMINISTRATIVE DETERMINATION CONCLUSIVENESS UNDER INVITATION FOR BIDS FOR ATOMIC BEAM-TYPE FREQUENCY STANDARD, BRAND NAME OR EQUAL, PROVIDING THAT PROPOSALS TO MODIFY PRODUCT SHOULD CONFORM TO BID REQUIREMENTS AND INCLUDE CLEAR DESCRIPTION OF PROPOSED MODIFICATIONS, BIDDER WHO FAILED TO PROVIDE SATISFACTORY TECHNICAL DETAILS IN OPINION OF PROCURING AGENCY, WAS PROPERLY NOT CONSIDERED FOR AWARD, SINCE DETERMINATION AND EVALUATION OF TECHNICAL REQUIREMENTS ARE MATTERS FOR ADMINISTRATIVE AGENCY, AND NO BASIS EXISTS FOR CONCLUSION THAT CONTRACTING OFFICER'S DECISION WAS ARBITRARY, CAPRICIOUS OR UNREASONABLE.

TO FREQUENCY ELECTRONICS, INCORPORATED:

REFERENCE IS MADE TO YOUR TELEFAX DATED MAY 27, 1969, AND LETTER DATED JULY 22, 1969, PROTESTING AWARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. NA00-9-412, ISSUED BY THE FEDERAL AVIATION ADMINISTRATION.

THE SOLICITATION WAS ISSUED ON APRIL 1, 1969, BY THE CONTRACTS AND PURCHASE BRANCH, FEDERAL AVIATION ADMINISTRATION, ATLANTIC CITY, NEW JERSEY, FOR PROCUREMENT OF AN ATOMIC BEAM-TYPE FREQUENCY STANDARD TO BE HEWLETT-PACKARD MODEL 5061A, OPTION 3, OR EQUAL IN ACCORDANCE WITH THE ,MAIN AND REQUIRED CHARACTERISTICS" LISTED IN THE INVITATION FOR BIDS. THE MAIN AND REQUIRED CHARACTERISTICS LISTED ARE IN THE FOLLOWING AREAS:

ACCURACY

LONG TERM STABILITY

SHORT TERM STABILITY

REAL TIME OUTPUT

OUTPUTS

CLOCK PULSE

CLOCK DRIVE

HARMONIC DISTORTION

NOISE

STANDBY POWER CAPABILITY

TWO BIDS WERE RECEIVED AND WERE OPENED ON APRIL 17, 1969. THE OFFERORS WERE FREQUENCY ELECTRONICS AND HEWLETT-PACKARD. FREQUENCY ELECTRONICS, IN ITS BID, PROPOSED TO MODIFY AN EXISTING PIECE OF EQUIPEMNT (MODEL 3701 FREQUENCY STANDARD) TO PRODUCE A NEW MODEL 3701B WHICH IT STATED WOULD MEET THE SPECIFICATION REQUIREMENTS OF THE SOLICITATION.

PARAGRAPH 25 (C) (2) OF THE GENERAL PROVISION OF THE INVITATION

"/2) IF THE BIDDER PROPOSES TO MODIFY A PRODUCT SO AS TO MAKE IT CONFORM TO THE REQUIREMENTS OF THE INVITATION FOR BIDS, HE SHALL (I) INCLUDE IN HIS BID A CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS AND (II) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS.' SEE ALSO SEC. 1-1.307-6 (A) (2) OF FEDERAL PROCUREMENT REGULATIONS.

THE TECHNICAL EVALUATION PERSONNEL REPORTED TO THE CONTRACTING OFFICER, AS FOLLOWS: "THE ACCURACY AND STABILITY OF A CESIUM BEAM FREQUENCY STANDARD ARE DETERMINED NOT ONLY BY THE CHARACTERISTICS OF THE CESIUM BEAM TUBE BUT BY THE VARIOUS ELEMENTS IN THE LOOP OR LOOPS USED TO TUNE THE PRECISION QUARTZ OSCILLATOR TO ZERO FREQUENCY ERROR (RELATIVE TO THE CENTER OF THE RESONANT FREQUENCY OF THE CESIUM ATOM). THESE ELEMENTS INCLUDE THE PRECISION OSCILLATOR, FREQUENCY MULTIPLICATION AND SYNTHESIS NETWORKS, AND FILTERING, AMPLIFICATION, AND DETECTION CIRCUITRY. ERRORS AND INSTABILITIES IN ANY OF THESE ELEMENTS WOULD EFFECT THE ACCURACY AND STABILITY OF THE FREQUENCY STANDARD, EVEN IF THE CESIUM BEAM TUBE WERE HAND SELECTED FOR OPTIMUM ACCURACY.'NEITHER THE BID NOR THE 7 MAY 1969 LETTER FROM ATOMICHRON PROVIDE ANY TECHNICAL DETAILS OF HOW THE COMPANY WOULD EFFECT IMPROVEMENTS OR MODIFICATIONS TO THE LOOP. IN OUR OPINION THIS WOULD BE REQUIRED, TO SOME EXTENT, TO DOUBLE THE ACCURACY AND LONG- TERM STABILITY OF THEIR PRODUCTION MODEL 3701. IN OTHER WORDS, HAND SELECTION OF THE TUBE BY ITSELF WILL NOT, IN OUR OPINION, GUARANTEE THE HIGHER ACCURACY.'IN SUMMARY, THE ATOMICHRON COMPANY HAS NOT SUBMITTED SUFFICIENT ENGINEERING EVIDENCE IN THEIR ORIGINAL BID AND SUBSEQUENT CORRESPONDENCE TO DEMONSTRATE THAT THEY COULD SATISFACTORILY MODIFY THEIR STANDARD PRODUCTION MODEL 3701 CESIUM BEAM FREQUENCY STANDARD TO MEET THE SPECIFICATIONS OF IFB NA00-9-412. ADDITIONAL NEGOTIATIONS BETWEEN THIS CENTER AND THE COMPANY, IN AN EFFORT TO SUFFICIENTLY DEFINE THEIR TECHNICAL APPROACH WOULD, IN OUR OPINION, CAUSE PROCUREMENT DELAYS THAT WOULD NOT BE TOLERABLE. EVEN THOUGH THE PROCUREMENT REQUEST DID NOT SPECIFY AN OFF-THE-SHELF ITEM, THERE WAS A TACIT ASSUMPTION ON THE PART OF THE INITIATER THAT THE REQUEST WAS FOR SUCH AN ITEM, RATHER THAN A DEVELOPMENT MODEL AS PROPOSED BY ATOMICHRON.'

YOU STATE THAT FREQUENCY ELECTRONICS IS PRESENTLY MANUFACTURING A QUANTITY OF THE EQUIPMENT CONCERNED HERE, SOME OF WHICH ARE FOR AN AIR FORCE PROCUREMENT, AND THE ACCURACY REQUIREMENTS ARE THE SAME AS REQUIRED IN THE INSTANT PROCUREMENT.

THE QUESTION AS TO THE ACTION, IF ANY, WHICH OUR OFFICE SHOULD TAKE IN CASES INVOLVING THE EVALUATION OF TECHNICAL REQUIREMENTS OF SPECIFICATIONS, ETC., HAS BEEN THE SUBJECT OF A NUMBER OF DECISIONS BY OUR OFFICE. YOUR PROTEST IS BASED UPON SUCH AN EVALUATION. OF NECESSITY, OUR OFFICE HAS ESTABLISHED A RULE GOVERNING SUCH SITUATIONS. IN A DECISION DATED JANUARY 8, 1938, TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, 17 COMP. GEN. 554, 557 (1938), WE SET FORTH THE FOLLOWING RULE WHICH WE CONSIDER TO BE CONTROLLING IN THE INSTANT MATTER.

"IT IS THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENT NEEDS, AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THESE SPECIFICATIONS. * * *"

IN OUR DECISION, B-139830, DATED AUGUST 19, 1959, WE MADE THE FOLLOWING OBSERVATION:

"THIS OFFICE HAS NEITHER AN ENGINEERING STAFF NOR A TESTING LABORATORY TO EVALUATE THE TECHNICAL ASPECT OF SPECIFICATIONS. MOREOVER, IN DISPUTES OF FACT BETWEEN A PROTESTANT AND A GOVERNMENT AGENCY, WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT. WHETHER A PARTICULAR BID IS RESPONSIVE TO THE TECHNICAL DETAILS OF THE SPECIFICATIONS IS NOT A MATTER ORDINARILY FOR OUR DETERMINATION. * * *"

HERE, YOUR BID AND ACCOMPANYING TECHNICAL DETAILS, IN THE OPINION OF THE TECHNICAL EVALUATORS, FAILED TO EXHIBIT IN THE MODIFIED FREQUENCY STANDARD THE HIGH DEGREE OF ACCURACY REQUIRED BY THE SPECIFICATIONS. IN THIS CONNECTION YOU ARE ADVISED THAT AN OVERALL OFFER, IN THE BID, TO COMPLY WITH THE SPECIFICATIONS WHERE AN "OR EQUAL" ITEM IS OFFERED, WILL NOT OVERCOME A REQUIRED SHOWING THAT THE OFFERED ITEM IS IN FACT "EQUAL" TO THE NAMED PRODUCT. SEE B-145279, MAY 10, 1961.

WE CANNOT CONCLUDE ON THE BASIS OF THE RECORD BEFORE US OR YOUR PRESENTATION THAT THE DETERMINATION MADE BY THE CONTRACTING OFFICER IN THIS MATTER WAS ARBITRARY OR THAT THERE WAS NOT A REASONABLE BASIS FOR HIS CONCLUSION.