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B-162403, NOV. 28, 1967

B-162403 Nov 28, 1967
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BIDDER WHO FIVE WEEKS AFTER OPENING SUBMITS 61 PAGE BID PACKAGE INCLUDING 55 PAGES OF TECHNICAL DATA NOT RECEIVED WITH ORIGINAL BID MAY NOT HAVE LATE DATA SUBMISSION REGARDED AS A TIMELY RESPONSE TO THE DATA REQUIREMENTS. BECAUSE THE PROTESTANT'S BID WAS NONRESPONSIVE AT OPENING THERE IS NO USEFUL PURPOSE TO A DISCUSSION OF WHAT WOULD HAVE BEEN RESPONSIVE TO THE REQUIREMENTS. ONE WAS REJECTED AS NONRESPONSIVE BECAUSE IT DID NOT RESPOND TO ALL ITEMS AS REQUIRED BY THE SOLICITATION AND TWO. WERE REJECTED AS NONRESPONSIVE FOR FAILURE TO SUBMIT TECHNICAL DATA REQUIRED UNDER PARAGRAPH 4 (A) OF THE SOLICITATION. THE SOLICITATION WAS CANCELLED AND A NEW SOLICITATION. WAS ISSUED. YOUR BID WAS FOUND NOT TO SATISFY THE STATED DATA REQUIREMENTS OF THE INVITATION.

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B-162403, NOV. 28, 1967

BIDS - DESCRIPTIVE DATA, ETC. DECISION TO LCL CONTROLS DENYING PROTEST AGAINST REJECTION OF ALL BIDS FOR SWITCHBOARDS AND RELATED EQUIPMENT FOR LOCK AND DAM ON ARKANSAS RIVER BY CORPS OF ENGINEERS. BIDDER WHO FIVE WEEKS AFTER OPENING SUBMITS 61 PAGE BID PACKAGE INCLUDING 55 PAGES OF TECHNICAL DATA NOT RECEIVED WITH ORIGINAL BID MAY NOT HAVE LATE DATA SUBMISSION REGARDED AS A TIMELY RESPONSE TO THE DATA REQUIREMENTS. BECAUSE THE PROTESTANT'S BID WAS NONRESPONSIVE AT OPENING THERE IS NO USEFUL PURPOSE TO A DISCUSSION OF WHAT WOULD HAVE BEEN RESPONSIVE TO THE REQUIREMENTS. SINCE CONTRACTING AGENCY REJECTED ALL BIDS BECAUSE OF DESCRIPTIVE DATA DEFICIENCY, DETERMINATION TO READVERTISE MUST BE REGARDED AS WITHIN ADMINISTRATIVE DISCRETION.

TO LCL CONTROLS:

WE REFER TO YOUR LETTER OF SEPTEMBER 1, 1967, WITH ENCLOSURES, PROTESTING THE REJECTION OF ALL BIDS, INCLUDING THE BID OF LCL CONTROLS (LCL), UNDER ADVERTISED SOLICITATION NO. DACW-56-67-B-0093 ISSUED MARCH 31, 1967, BY THE TULSA DISTRICT, CORPS OF ENGINEERS, TO PROCURE SWITCHBOARDS AND ASSOCIATED EQUIPMENT FOR USE IN THE ARKANSAS RIVER WATERSHED ROBERT S. KERR LOCK AND DAM, ARKANSAS RIVER, OKLAHOMA.

OF THE THREE BIDS RECEIVED BY BID OPENING DATE, MAY 3, 1967, ONE WAS REJECTED AS NONRESPONSIVE BECAUSE IT DID NOT RESPOND TO ALL ITEMS AS REQUIRED BY THE SOLICITATION AND TWO, INCLUDING THE LCL BID, WERE REJECTED AS NONRESPONSIVE FOR FAILURE TO SUBMIT TECHNICAL DATA REQUIRED UNDER PARAGRAPH 4 (A) OF THE SOLICITATION. AS THIS ELIMINATED ALL OF THE TIMELY OFFERS, THE SOLICITATION WAS CANCELLED AND A NEW SOLICITATION, NO. DACW-56 -68-B-0003, WAS ISSUED.

LCL'S BID, AS OPENED ON MAY 3, 1967, CONSISTED OF SIX PAGES, AND DID NOT INCLUDE TECHNICAL DATA. THEREFORE, YOUR BID WAS FOUND NOT TO SATISFY THE STATED DATA REQUIREMENTS OF THE INVITATION. BY LETTER OF JUNE 2, 1967, EACH BIDDER WAS ADVISED WHY ITS BID WAS REJECTED AND WAS NOTIFIED THAT ALL BIDS HAD BEEN REJECTED. BY LETTER OF JUNE 10, 1967, MORE THAN FIVE WEEKS AFTER THE BID OPENING DATE OF MAY 3, 1967, LCL SUBMITTED TO THE CONTRACTING OFFICER A 61-PAGE BID PACKAGE (WHICH INCLUDED 55 PAGES OF TECHNICAL DATA NOT RECEIVED WITH LCL'S ORIGINAL BID) DESCRIBED AS A DUPLICATE SET OF LCL'S BID DOCUMENTS SUBMITTED PRIOR TO BID OPENING. THE LETTER DESCRIBED THE DISCREPANCY BETWEEN THE ORIGINAL BID AND THE DUPLICATE BID IN THE FOLLOWING WORDS:

"IF THE DUPLICATE SUBMITTAL DOES NOT AGREE WITH THE ORIGINAL SUBMITTAL, THEN THE ERROR IS A CLERICAL ONE ON OUR PART OR POSSIBLY ON THE PART OF THE MAIL HANDLING SYSTEM AT THE RECEIVING END. WHICH ONE WE HAVE NO POSSIBLE WAY OF KNOWING.'

WHATEVER THE REASON FOR THE DISCREPANCY BETWEEN THE TWO SUBMISSIONS, THE BID CONSIDERED FOR AWARD MUST BE THAT FOUND UPON PUBLIC OPENING. THE REMAINING 55 PAGES MUST, THEREFORE, BE REGARDED AS SUBMITTED LATE. THIS LATE SUBMISSION OF DATA IS NOT A TIMELY RESPONSE TO THE REQUIREMENTS OF PARAGRAPH 4 (A) FOR TECHNICAL INFORMATION, REGARDING THE EQUIPMENT PROPOSED BY THE BIDDER. PERHAPS LCL INTENDED TO RELY UPON THE FACT THAT IN CERTAIN INSTANCES A BID RECEIVED AFTER OPENING MAY BE CONSIDERED IF IT WAS DISPATCHED EARLY ENOUGH TO BE RECEIVED ON TIME BUT WAS DELAYED IN TRANSIT THROUGH NO FAULT OF THE BIDDER. SEE PARAGRAPH 6 OF STANDARD FROM 33-A, DECEMBER 1964, INCLUDED WITH THE BID PACKAGE. HERE, HOWEVER, THE MATERIAL WAS DISPATCHED, PRESUMABLY, NO EARLIER THAN JUNE 10, 1967, MANY WEEKS AFTER BID OPENING.

IT IS ALSO TRUE THAT UNDER ASPR 2-405, BIDDERS ARE PERMITTED TO CORRECT "A MINOR INFORMALITY OR IRREGULARITY" WHEN THERE EXISTS "SOME IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION.' HOWEVER, THE FAILURE TO COMPLY WITH THE DESCRIPTIVE DATA REQUIREMENTS OF THE INVITATION IS MATERIAL AND REQUIRES REJECTION OF THE BID. 40 COMP. GEN. 132. SEE ASPR 2-402.2 WHICH DIRECTS: "/A) ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS SHALL BE REJECTED.'

BECAUSE LCL'S BID WAS DETERMINED TO BE NONRESPONSIVE AT BID OPENING DUE TO THE ABSENCE OF TECHNICAL DATA, THERE WOULD NORMALLY BE NO USEFUL PURPOSE SERVED IN DISCUSSING WHAT WOULD HAVE BEEN RESPONSIVE TO THE SPECIFICATION REQUIREMENTS HAD THE TECHNICAL DATA BEEN SUBMITTED IN A TIMELY MANNER. HOWEVER, BECAUSE LCL PLACES STRONG EMPHASIS UPON THE CONTENTION THAT ITS DATA SATISFIED THE REQUIREMENTS OF THE SOLICITATION, WE FEEL IT APPROPRIATE TO COMMENT UPON THE RESPONSIVENESS OF LCL'S TECHNICAL DATA AS SUCH, WITHOUT REGARD TO THE FACT IT WAS NOT RECEIVED ON TIME.

ITEM 5 OF THE SOLICITATION, AT PAGE 6, REQUIRED THE DELIVERY OF"INVERTER MOTOR-GENERATOR EQUIPMENT.' PARAGRAPH 8-01 OF THE SPECIFICATIONS DESCRIBED THE DESIRED ITEM AS "1 D.C. TO A.C. INVERTER MOTOR-GENERATOR SET.'

LCL OFFERED SILICON CONVERSION UNITS IN LIEU OF THE INVERTER MOTOR GENERATOR EQUIPMENT, AND ENCLOSED DESCRIPTIVE DATA DETAILING THE CHARACTERISTICS OF WESTINGHOUSE "SILICON AC TO DC CONVERSION UNITS," INCLUDING INFORMATION OR "DC OUTPUT VOLTAGE" AND "AC INPUT POWER SOURCE.'

LCL, IN ITS VARIOUS LETTERS TO THE ARMY, DISCUSSES THE MERITS OF THE TWO TYPES OF CONVERSION EQUIPMENT, AND CONCLUDES THAT SILICON CONVERSION EQUIPMENT IS IN EVERY RESPECT EQUAL TO OR BETTER THAN THE INVERTER MOTOR- GENERATOR EQUIPMENT SPECIFIED, AND THAT SUBSTITUTION OF SILICON EQUIPMENT WAS PROPER UNDER PARAGRAPH 4 (B) (1) OF THE INVITATION. HOWEVER, ANY DISCUSSION OF THE COMPARATIVE MERITS OF THE TWO SYSTEMS FOR CONVERTING ELECTRIC CURRENT, AND WHETHER THE ONE TYPE MIGHT PROPERLY BE SUBSTITUTED FOR THE OTHER, IS IRRELEVANT. LCL FURNISHED TECHNICAL DATA DESCRIBING EQUIPMENT WHICH CONVERTS ALTERNATING CURRENT INTO DIRECT CURRENT, WHILE THE GOVERNMENT SPECIFIED EQUIPMENT WHICH CONVERTS DIRECT CURRENT INTO ALTERNATING CURRENT. WE THEREFORE CONCLUDE THAT EVEN HAD LCL'S TECHNICAL DATA BEEN RECEIVED PRIOR TO BID OPENING, THE CONTRACTING OFFICER WOULD HAVE BEEN COMPELLED TO REJECT IT AS NONRESPONSIVE TO THE STATED REQUIREMENTS OF THE SOLICITATION.

FINALLY, LCL MAINTAINS THE CHANGES OF OPINION REGARDING THE NECESSITY FOR TECHNICAL DATA DEMONSTRATES AN ARBITRARY AND CAPRICIOUS ATTITUDE ON THE PART OF THE CONTRACTING OFFICER. IN BRIEF, ON JUNE 2, 1967, THE ARMY REJECTED LCL'S BID UNDER THE ORIGINAL SOLICITATION NO. DACW-56-67-B-0093 BECAUSE ITS BID LACKED THE REQUIRED TECHNICAL DATA; THEN ON JUNE 20, 1967, THE ARMY ISSUED SOLICITATION NO. DACW-56-68-B 0003 WHICH DID NOT REQUIRE THE SUBMISSION OF TECHNICAL DATA; AND, FINALLY, ON JULY 31, 1967, THE ARMY REINSTITUTED THE REQUIREMENT FOR TECHNICAL DATA BY ISSUING AMENDMENT 0005 TO THE LATER SOLICITATION.

THE CONTRACTING OFFICER'S REPORT ON THE MATTER, DATED OCTOBER 20, 1967, DESCRIBED THE DELETION AND REINSTATEMENT OF THE DESCRIPTIVE DATA SUBMISSION REQUIREMENT AS FOLLOWS:

"5. DESCRIPTIVE DATA WAS REQUIRED BY THE FIRST INVITATION FOR THIS TYPE EQUIPMENT AT ROBERT S. KERR, WHICH IS THE SUBJECT OF THIS PROTEST. AFTER ALL BIDS WERE REJECTED UNDER THAT INVITATION, THE PROCUREMENT WAS READVERTISED AS HERE BEFORE MENTIONED. THE INITIAL DECISION OF THIS OFFICE ON THE READVERTISEMENT WAS THAT, SINCE AWARD OF THIS INVITATION WAS INTERRELATED TO OTHER WORK IN PROGRESS AT THE ROBERT S. KERR DAM, A PART OF THE ARKANSAS RIVER NAVIGATION PROJECT, AND A DELAY IN DELIVERY OF THE SWITCHBOARD EQUIPMENT COULD RESULT IN CONSIDERABLE DAMAGE TO THE GOVERNMENT, THE REQUIREMENT FOR TECHNICAL DATA COULD BE OMITTED FROM THE INVITATION IN THE INTEREST OF OBTAINING A RESPONSIVE BIDDER. THIS DETERMINATION, HOWEVER, WAS CONSIDERED TO BE IN ERROR DURING THE ADVERTISEMENT PERIOD, AND THE MATTER WAS CORRECTED BY AMENDMENT 0005, WHICH RESTORED THE REQUIREMENT TO THE READVERTISED INVITATION. SUCH ACTION, IN MY OPINION, DOES NOT REFLECT ARBITRARY DECISIONS ON THE PART OF THIS OFFICE, BUT, RATHER, REFLECTS A CORRECT DECISION TO OBTAIN NEEDED DATA PRIOR TO AWARD AND KEEP BOTH INVITATIONS SUBSTANTIALLY THE SAME IN FAIRNESS TO ALL BIDDERS DESPITE ANY URGENCY TO OBTAIN THE EQUIPMENT BEING PROCURED.'

WHILE IT CERTAINLY WOULD BE BETTER IF THE PROVISION WHICH WAS LATER FOUND NECESSARY HAD NOT BEEN DELETED IN THE FIRST PLACE, WE CAN FIND NO EVIDENCE OF BAD FAITH IN THE ADMINISTRATIVE ACTIONS COMPLAINED OF. HOWEVER REGRETTABLE IT MAY BE THAT THE SITUATION AROSE, ITS EXISTENCE PROVIDES NO BASIS FOR INVALIDATING THE READVERTISEMENT. THE FAILURE TO COMPLY WITH THE DESCRIPTIVE DATA REQUIREMENT IN THE INITIAL INVITATION COULD NOT HAVE BEEN WAIVED AS AN INFORMALITY EVEN IF AFTER OPENING IT HAD BEEN DECIDED THAT THE DATA WAS NOT NECESSARY, SINCE OTHER PROSPECTIVE SUPPLIERS MIGHT WELL HAVE BEEN DETERRED FROM BIDDING BECAUSE OF THE PROVISION. IN ANY CASE, THE DATA WAS NEVER CONSIDERED UNNECESSARY; RATHER AT THE TIME THE SECOND INVITATION WAS ISSUED THE CONTRACTING AGENCY OFFICIALS APPARENTLY FELT THAT THE NEED FOR THE DATA COULD BE SACRIFICED TO HELP INSURE TIMELY DELIVERY OF THE EQUIPMENT. THIS CONCLUSION WAS LATER FOUND TO BE ERRONEOUS AND AMENDMENT FIVE TO THE LATTER INVITATION WAS ISSUED.

UNDER THE CIRCUMSTANCES, THE DETERMINATION TO READVERTISE MUST BE REGARDED AS A VALID EXERCISE OF ADMINISTRATIVE DISCRETION. ACCORDINGLY, YOUR PROTEST IS DENIED.

AS YOU HAVE BEEN ADVISED, BY LETTER OF OCTOBER 24, 1967, ALL BIDS UNDER THE REPROCUREMENT WERE REJECTED FOR FAILURE TO COMPLY WITH THE DESCRIPTIVE DATA REQUIREMENT.

LCL'S LETTER OF NOVEMBER 10, 1967, ADDRESSED TO THE TULSA DISTRICT, CORPS OF ENGINEERS, A COPY OF WHICH WAS FORWARDED TO THIS OFFICE, WILL BE CONSIDERED AS A PROTEST AGAINST THE REJECTION OF LCL'S BID UNDER THE REPROCUREMENT. WE HAVE REQUESTED A FURTHER REPORT FROM THE ARMY REGARDING THESE NEW CONTENTIONS. WHEN IT IS RECEIVED WE WILL CAREFULLY CONSIDER THE REJECTION OF LCL'S BID UNDER ADVERTISED SOLICITATION NO. DACW-56-68-B-0003 AND ADVISE YOU OF OUR DECISION.

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