B-164615, AUG. 26, 1968

B-164615, AUG. 26, 1968

TO MB ELECTRONICS:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JUNE 17 AND JULY 9, 1968, PROTESTING THE AWARD OF A CONTRACT TO UNHOLTZ-DICKIE CORPORATION UNDER INVITATION FOR BIDS NO. N00156-68-B-0502 ISSUED BY THE NAVAL AIR ENGINEERING CENTER, PHILADELPHIA, PENNSYLVANIA.

THE SUBJECT INVITATION WAS ISSUED ON FEBRUARY 20, 1968, REQUESTING BIDS FOR FURNISHING FOUR SINUSOIDAL VIBRATION TESTING SYSTEMS IN ACCORDANCE WITH NAVAL WEAPONS INDUSTRIAL SUPPORT OFFICE (NWISO) SPECIFICATIONS NO. 68 -760. ON PAGES 12 AND 13 OF THE INVITATION BIDDERS WERE ADVISED THAT DESCRIPTIVE LITERATURE MUST BE FURNISHED TO THE EXTENT SPECIFIED AND THAT IT WOULD BE USED FOR BID EVALUATION PURPOSES AND AWARD OF CONTRACT. THREE BIDS WERE RECEIVED AND OPENED ON MARCH 20, 1968. WHILE IT APPEARS THAT YOUR BID WAS LOW IT WAS REJECTED AS NONRESPONSIVE BECAUSE THE DESCRIPTIVE LITERATURE WAS DETERMINED TO BE TECHNICALLY NONRESPONSIVE. THE RECORD SHOWS THAT YOU WERE APPRISED IN CORRESPONDENCE BETWEEN YOU AND THE ADMINISTRATIVE OFFICE OF THE AREAS IN WHICH YOUR DESCRIPTIVE LITERATURE WAS DEFICIENT.

IN YOUR LETTER OF JUNE 17, 1968, YOU ALLEGE THAT YOU TOOK NO EXCEPTIONS TO THE SPECIFICATIONS; THAT INVALID AS WELL AS ERRONEOUS REASONS WERE GIVEN FOR RULING YOUR BID NONRESPONSIVE; AND THAT, APART FROM YOUR ERRONEOUS DISQUALIFICATION, THE CONTRACT SHOULD NOT HAVE BEEN AWARDED TO UPHOLTZ-DICKIE BECAUSE IT FAILED TO PRINT OR TYPEITS NAME ON EACH CONTINUATION SHEET ON WHICH IT MADE AN ENTRY IN ITS BID AS REQUIRED BY THE STANDARD FORM 33A.

IN YOUR LETTER OF JULY 9, 1968, TO THE CONTRACTING OFFICER, YOU ATTEMPT TO REBUT THE REASONS GIVEN BY THE ADMINISTRATIVE AGENCY FOR REJECTION OF YOUR BID.

BRIEFLY STATED, THE RECORD SHOWS THAT THE QUESTION HERE INVOLVED RESOLVES ITSELF INTO A DISPUTED QUESTION OF FACT AS TO WHETHER THE PRODUCT OFFERED BY YOU WOULD MEET THE GOVERNMENT'S SPECIFICATIONS. THE DEFICIENCIES IN YOUR BID HAVE BEEN SET FORTH IN DETAIL IN LETTER OF MAY 29, 1968, ADDRESSED TO YOU BY THE ADMINISTRATIVE OFFICE AND NEED NOT BE REPEATED HERE. ALSO, WE HAVE RECEIVED A REPORT COMMENTING ON AND DISAGREEING WITH THE STATEMENTS MADE IN YOUR LETTER OF JULY 9, 1968. NO USEFUL PURPOSE WOULD BE SERVED BY INCLUDING THOSE COMMENTS IN THIS DECISION. SINCE WE DO NOT HAVE AN ENGINEERING STAFF TO EVALUATE THE TECHNICAL ASPECTS OF SPECIFICATIONS, WE CONSISTENTLY HAVE HELD THAT THE FUNCTION OF DETERMINING WHETHER EQUIPMENT OFFERED BY A BIDDER CONFORMS TO THE DETAILED REQUIREMENTS OF THE SPECIFICATIONS IS ONE FOR EXERCISE BY THE CONTRACTING AND ADMINISTRATIVE OFFICIALS OF THE GOVERNMENT AND, WHEN A DETERMINATION IS MADE IN THE EXERCISE OF SUCH FUNCTION, IT IS CONTROLLING IN THE ABSENCE OF CAPRICIOUS OR ARBITRARY ACTION. 43 COMP. GEN. 77; 40 ID. 35. MOREOVER, IN DISPUTES OF FACT BETWEEN A BIDDER AND A GOVERNMENT AGENCY, WE NECESSARILY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE VERSION AS CORRECT. 40 COMP. GEN. 178. WE HAVE REVIEWED THE REPORT OF THE ADMINISTRATIVE OFFICE REGARDING THE TECHNICAL EVALUATION OF YOUR BID AND WE CANNOT SAY THAT THE DETERMINATION MADE BY THE ADMINISTRATIVE OFFICE WAS ARBITRARY OR CAPRICIOUS. HENCE, WE SEE NO LEGAL BASIS FOR OBJECTING TO THE ADMINISTRATIVE ACTION IN REJECTING YOUR BID.

REGARDING THE FAILURE OF UNHOLTZ-DICKIE TO PRINT OR TYPE ITS NAME ON THE CONTINUATION SHEETS, IT IS OUR VIEW THAT SUCH FAILURE WAS A MERE INFORMALITY WHICH PROPERLY MAY BE WAIVED UNDER THE PROVISIONS OF ASPR 2- 405. THAT SECTION PROVIDES THAT AN IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION WHICH HAS NO EFFECT ON PRICE, QUALITY, QUANTITY OR DELIVERY OF THE SUPPLIES BEING PROCURED MAY BE WAIVED WHERE IT IS TO THE ADVANTAGE OF THE GOVERNMENT.

IN VIEW OF THE FOREGOING WE SEE NO LEGAL BASIS TO QUESTION THE ADMINISTRATIVE ACTION IN REJECTING YOUR BID AND AWARDING A CONTRACT TO THE UNHOLTZ-DICKIE CORPORATION.