B-147938, FEB. 21, 1962

B-147938, FEB. 21, 1962

TO HI-VOLTAGE EQUIPMENT COMPANY:

REFERENCE IS MADE TO YOUR TELEFAX OF JANUARY 12, 1962, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. CIVENG -01-076-61-83 ISSUED BY THE U.S. ARMY ENGINEER DISTRICT, MOBILE CORPS OF ENGINEERS, ON JUNE 7, 1961, FOR THE PROCUREMENT OF SWITCHYARD STRUCTURES AND EQUIPMENT.

PAGES 12 TO 14, INCLUSIVE, OF THE INVITATION PROVIDES, IN PART AS FOLLOWS:

"4.DRAWINGS AND DATA TO BE SUBMITTED WITH BID:

"/A) EACH BIDDER SHALL SUBMIT WITH HIS BID THE INFORMATION LISTED BELOW, WHICH WILL BE USED IN DETERMINING THE RESPONSIVENESS OF THE BID. BIDS WILL BE EVALUATED STRICTLY ON THE BASIS OF INFORMATION SUBMITTED WITH THE BID. THE DRAWINGS AND DATA SUBMITTED MUST BE IN SUFFICIENT DETAIL AND CLARITY TO ENABLE MAKING A COMPLETE AND POSITIVE CHECK WITH THE TECHNICAL PROVISIONS OF THE SPECIFICATIONS AND, WHERE HEREINAFTER INDICATED, SUCH DATA WILL BE MADE A PART OF THE CONTRACT INSTRUMENT. IF BIDDERS SUBMIT STANDARD DRAWINGS AND/OR STANDARD PUBLISHED DESCRIPTIVE DATA OF THEIR PRODUCT, ANY MODIFICATION REQUIRED AND INTENDED BY THEM IN ORDER TO MEET THE REQUIREMENTS OF THE SPECIFICATIONS SHALL BE CLEARLY SET FORTH BY DESCRIPTION OF THE CHANGE OR REVISION. FAILURE TO SUBMIT DRAWINGS AND DATA OF SUCH DETAIL AND CLARITY AS DESCRIBED ABOVE, FAILURE OF SUCH INFORMATION TO INDICATE COMPLIANCE OF THE BID WITH THE SPECIFICATIONS, OR FAILURE TO SUBMIT ALL OF THE REQUIRED DATA WILL RESULT IN REJECTION OF THE BID.

"/B) THE DRAWINGS AND DATA SUBMITTED SHALL INCLUDE, AS A MINIMUM, THE FOLLOWING:

"/1) SPECIFIC DATA. THE FOLLOWING APPROXIMATE WEIGHTS AND OTHER DATA WILL BE INCLUDED IN THE CONTRACT INSTRUMENT:

CHART

"DISCONNECTING SWITCHES: ITEM 2 ITEM 3 ITEM 4 ITEM 5 "A. MANUFACTURER "B. TYPE "C. APPROXIMATE WEIGHT,

NET, ONE COMPLETE

SWITCH, INCLUDING

OPERATING RODS AND

MECHANISM, LBS.

"COUPLING CAPACITOR

POTENTIAL DEVICES "A. MANUFACTURER "B. TYPE - CATALOGUE NUMBER "C. APPROXIMATE WEIGHT, COMPLETE

WITH OIL, LBS.

"SWITCH AND BUS INSULATORS MANUFACTURER CATALOGUE NUMBER WEIGHT, ONE UNIT

"SUSPENSION INSULATORS MANUFACTURER CATALOGUE NUMBER WEIGHT, ONE UNIT

"INSTRUMENT TRANSFORMERS

CURRENT POTENTIAL MANUFACTURER TYPE AND CAT. NO. APPROXIMATE WEIGHT, COMPLETE WITH OIL

"/2) DRAWINGS AND DESCRIPTIVE DATA. THE FOLLOWING DRAWINGS AND OTHER DATA SHALL BE SUBMITTED BUT WILL NOT BE INCLUDED AS PART OF THE CONTRACT INSTRUMENT:

"A. DISCONNECT SWITCHES. OUTLINE DRAWINGS OR DIMENSION SHEET FOR EACH TYPE OF DISCONNECT SWITCH ASSEMBLY, AND DRAWINGS AND/OR CATALOG DESCRIPTIVE DATA SHOWING CONSTRUCTION DETAILS OF THE DISCONNECTS, INCLUDING TERMINALS, CONTACTS, HINGE MECHANISMS, LINKAGES, AND MANUAL AND MOTOR OPERATING MECHANISMS.

"B. INSULATORS. OUTLINE DRAWING OR DIMENSION SHEET FOR EACH TYPE OF INSULATOR AND CERTIFIED DESIGN TEST DATA REQUIRED UNDER SUBPARAGRAPH 4-01 (9).

"C. INSTRUMENT TRANSFORMERS. OUTLINE DRAWINGS OR DIMENSION SHEETS FOR THE CURRENT AND POTENTIAL TRANSFORMERS, AND DRAWINGS AND/OR CATALOG DESCRIPTIVE DATA SHOWING CONSTRUCTION DETAILS OF THE TRANSFORMERS, INCLUDING TERMINALS, BASES, GASKETS AND SEALS, AND TYPICAL CURVES DEMONSTRATING RATIO ACCURACY AT THE SPECIFIED BURDENS.

"D. COUPLING CAPACITORS AND CAPACITOR POTENTIAL DEVICES. OUTLINE DRAWINGS OR DIMENSION SHEETS AND DRAWINGS AND/OR CATALOG DESCRIPTIVE DATA SHOWING CONSTRUCTION DETAILS OF THE EQUIPMENT.'

SEVEN BIDS WERE RECEIVED. UPON THE OPENING OF BIDS ON OCTOBER 10, 1961, A TECHNICAL REVIEW AND EVALUATION OF THE BIDS WERE MADE. IT WAS DISCOVERED THAT SOME OF THE BIDS WERE NOT RESPONSIVE ON THE VARIOUS FOUR SCHEDULES UNDER THE INVITATION. ON NOVEMBER 3, 1961, MR. TATMAN OF YOUR FIRM CALLED THE CONTRACTING OFFICE TO INQUIRE ABOUT THE AWARD. HE WAS ADVISED THAT AWARD HAD NOT BEEN MADE BUT THAT YOUR BID WAS NOT RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION, AS OUTLINED IN THE ABOVE-QUOTED PROVISIONS. THE REASONS AS TO WHY YOUR BID COULD NOT BE ACCEPTED WERE SET FORTH IN A LETTER TO YOU ON NOVEMBER 8, 1961, FROM THE CONTRACTING OFFICER. THE BID OF THE WESTINGHOUSE ELECTRIC CORPORATION FOR THE WORK AS A WHOLE UNDER SCHEDULE A WAS ACCEPTED ON JANUARY 3, 1962. IN YOUR LETTER OF NOVEMBER 14, 1961, YOU REPLIED TO THE CONTRACTING OFFICER'S LETTER OF NOVEMBER 8, 1961, AND THE GIST OF YOUR REPLY WAS THAT THE DEVIATIONS IN YOUR BID WERE TRIVIAL AND COULD BE WAIVED AND THAT IN SOME CASES WHERE YOU HAD NOT FURNISHED THE MINUTE DETAIL OF THE ARTICLE INVOLVED YOU NEVERTHELESS WERE REQUIRED TO CONFORM TO DETAILED SPECIFICATIONS IF YOUR BID WAS ACCEPTED.

THE DEVIATIONS IN YOUR BID CONSIDERED TO BE MAJOR DEVIATIONS WERE DISCUSSED IN AN ANALYSIS STATEMENT PREPARED BY THE CONTRACTING OFFICER, AS FOLLOWS:

"3. THE BID OF HI-VOLTAGE EQUIPMENT COMPANY CONTAINS THE FOLLOWING MAJOR DEVIATIONS:

"A. DISCONNECTING SWITCHES.

"THE PROPOSED DISCONNECTING SWITCHES DO NOT MEET THE REQUIREMENTS OF SUBPARAGRAPH 3-05 (A) AS TO CONSTRUCTION OF CONTRACTS AND BLADES. SUBPARAGRAPH 3-05 (A) REQUIRES "IN OPENING, CONTACT PRESSURE SHALL BE RELEASED PRIOR TO ANGULAR MOTION OF THE BLADE AND IN CLOSING, PRESSURE SHALL NOT BE APPLIED UNTIL AFTER ANGULAR MOTION HAS CEASED.' THE DRAWINGS AND DESCRIPTIVE LITERATURE SUBMITTED TO SHOW DETAILS OF THE PROPOSED DISCONNECTING SWITCHES, AS REQUIRED BY SUBPARAGRAPH 4 (B) (2) A OF THE INVITATION, DO NOT INDICATE COMPLIANCE WITH THE REQUIREMENTS REGARDING PRESSURE CONTACTS. SUBPARAGRAPH 4A CLEARLY STATES THAT FAILURE OF SUCH REQUIRED DATA TO INDICATE COMPLIANCE OF THE BID WITH THE SPECIFICATIONS WILL RESULT IN REJECTION OF THE BID.

"ALSO, THE DATA SUBMITTED DOES NOT INDICATE FIXED GUIDES TO ASSURE PROPER SEATING OF THE BLADE IN THE CONTACTS, AS REQUIRED BY SUBPARAGRAPH 3-05 (A), IF A BLADE IS OUT OF ALIGNMENT ONE INCH OR LESS IN ANY DIRECTION.

"THE INFORMATION REGARDING THE MANUAL OPERATING DEVICE, REQUIRED BY SUBPARAGRAPH 4 (B) (2) A, IS NOT ADEQUATE TO DETERMINE RESPONSIVENESS. SEVERAL PAGES OF DESCRIPTIVE LITERATURE SHOWING INAPPLICABLE FEATURES WERE SUBMITTED BUT INAPPLICABLE FEATURES WERE NOT INDICATED AS NOT APPLYING TO THIS PROCUREMENT, AS REQUIRED BY SUBPARAGRAPH 4 (A). SUBPARAGRAPH 4A OF THE INVITATION PROVIDES THAT BIDS WILL BE EVALUATED STRICTLY ON THE BASIS OF INFORMATION SUBMITTED WITH THE BID, HENCE SUBMISSION OF ADDITIONAL DATA AFTER BID OPENING CANNOT BE PERMITTED AS SUGGESTED IN SUBPARAGRAPH 2.E OF INCLOSURE 18.

"CERTIFIED COPY OF DESIGN TESTS ON PROPOSED HINGE END MECHANISM TO DEMONSTRATE SPECIFIED NORMAL AND SHORT-TIME CURRENT CARRYING CAPACITY WAS NOT FURNISHED AS REQUIRED BY SUBPARAGRAPH 3-05 (B) OF THE SPECIFICATIONS.

"NO DETAILS WERE SUBMITTED OF THE TERMINALS, AS REQUIRED BY SUBPARAGRAPH 4 (B) (2) A.

"B. INSULATORS.

"SUBPARAGRAPH 4 (B) (1) REQUIRES THE FURNISHING OF THE NAME OF MANUFACTURER AND CATALOG NUMBER OF ALL TYPES OF INSULATORS TO BE FURNISHED AND SUBPARAGRAPH 4 (B) 2) B REQUIRES THE FURNISHING OF OUTLINE DRAWING AND CERTIFIED DESIGN TEST DATA FOR EACH TYPE. THIS DATA WAS NOT FURNISHED FOR TYPE TR1 BUS INSULATOR.

"C. COUPLING CAPACITOR POTENTIAL DEVICES.

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

"BIDDER SUBMITTED NO DATA TO SHOW DIMENSIONS OR CONSTRUCTION DETAILS OF THE COUPLING CAPACITOR POTENTIAL DEVICES AS REQUIRED BY SUBPARAGRAPH 4 (B) (2) D.

"D. INSTRUMENT TRANSFORMERS.

"BIDDER FAILED TO SUBMIT ADEQUATE DRAWINGS AND DESCRIPTIVE DATA TO SHOW OUTLINE DIMENSIONS AND CONSTRUCTION DETAILS (INCLUDING TERMINALS, GASKETS, SCALES AND TYPICAL CURVES) AS REQUIRED BY SUBPARAGRAPH 4 (B) (2) C. BIDDER SUBMITTED 2 CATALOG SHEETS ON CURRENT TRANSFORMERS SHOWING PRICES, CHARACTERISTICS AND TYPICAL CURVES BUT NO DIMENSION DATA. ON POTENTIAL TRANSFORMERS BIDDER SUBMITTED DATA ON DIMENSIONS ONLY. NO DESCRIPTIVE DATA WAS FURNISHED TO SHOW CONSTRUCTION DETAILS OR TERMINALS.

"IN VIEW OF THE ABOVE-NOTED DEVIATIONS, THE BID OF HI-VOLTAGE EQUIPMENT COMPANY IS NONRESPONSIVE FOR SCHEDULES A AND C.'

WHETHER THE DEVIATIONS SHOULD BE CLASSIFIED AS MAJOR OR MINOR IS NOT THE PRECISE QUESTION TO BE DECIDED. THE BASIC QUESTION IS RATHER WHETHER FROM THE DETAILS FURNISHED IT CAN BE DEFINITELY DETERMINED THAT THE BIDDER INTENDS TO FURNISH SPECIFICATION MATERIAL. IF THE BID CONTAINS A DEVIATION FROM THE SPECIFICATIONS WHICH AFFECTS THE AMOUNT OF THE BID OR THE INTENDED USE OF THE MATERIAL THEN IT FOLLOWS THAT SUCH A BID MUST BE REJECTED. IF A BIDDER FURNISHES THE REQUESTED DATA IT NOT ONLY AFFORDS THE GOVERNMENT AN OPPORTUNITY TO DECIDE AT THE TIME WHETHER THE MATERIAL THE BIDDER PROPOSES TO FURNISH MEETS THE SPECIFICATIONS BUT IT ALSO AVOIDS CONTROVERSY UPON DELIVERY AS TO WHETHER SPECIFICATION MATERIAL HAS BEEN FURNISHED.

IN THIS INSTANCE IT MAY BE DESIRABLE TO EMPHASIZE THE NECESSITY FOR FURNISHING THE REQUESTED INFORMATION BY INVITING YOUR ATTENTION TO THE INFORMATION FURNISHED BY YOU ON ONE OF THE INVOLVED ITEMS OF MATERIAL. FOR EXAMPLE, AS TO COUPLING CAPACITOR POTENTIAL DEVICES YOU INDICATED THAT YOU PROPOSED TO FURNISH A GENERAL ELECTRIC COMPANY PRODUCT, TYPE CD, WITH AN APPROXIMATE WEIGHT OF 600 POUNDS EACH. UNDER TYPE CD GENERAL ELECTRIC COMPANY MAKES THREE POTENTIAL DEVICES, NAMELY, CD-1, CD-2 AND CD-3, EACH HAVING DIFFERENT CHARACTERISTICS. ONLY TYPE CD-3 IS REPORTED AS MEETING THE SPECIFICATIONS BUT THE WEIGHT IS 1,000 POUNDS. THE LISTED WEIGHT FOR TYPE CD-1 IS 585 POUNDS. THIS WOULD INDICATE THAT YOU PROPOSED TO FURNISH TYPE CD-1 WHICH DOES NOT MEET THE SPECIFICATIONS.

WE HAVE HELD THAT A DESCRIPTIVE LITERATURE PROVISION MAY BE MADE A REQUIREMENT AND SHOULD BE ENFORCED IN ACCORDANCE WITH ITS TERMS, ESPECIALLY WHERE AS IN THIS CASE IT SERVES A DEFINITE AND USEFUL PURPOSE. 37 COMP. GEN. 763. WE SEE NO REASON FOR WAIVING THE REQUIREMENT IN THIS CASE SINCE IT MAY ELIMINATE MUCH CONTROVERSY AFTER AWARD. ALL BIDDERS WERE SPECIFICALLY WARNED THAT IF THEY SUBMITTED BIDS AND FAILED TO SUBMIT DRAWINGS AND DATA OF SUCH DETAIL AND CLARITY AS REQUESTED IN THE INVITATION OR FAILED TO SUBMIT ALL OF THE REQUIRED DATA THEIR BIDS WOULD BE REJECTED. THIS REQUIREMENT SERVES A LEGITIMATE PURPOSE AND IS IN THE INTERESTS OF THE GOVERNMENT. IT WOULD BE UNFAIR TO OTHER BIDDERS AND INCONSISTENT WITH THE SPIRIT OF THE COMPETITIVE BIDDING STATUTES TO SANCTION OR PERMIT THE WAIVER OF SUCH A REQUIREMENT. CONSEQUENTLY, WE FIND NO PROPER BASIS FOR OBJECTING TO THE ACTION TAKEN IN REJECTING YOUR BID BECAUSE OF YOUR FAILURE TO COMPLY WITH THE INVITATION PROVISION WITH REGARD TO THE DRAWINGS AND DATA TO BE SUBMITTED WITH BIDS.