B-144553, MAR. 22, 1961

B-144553, MAR. 22, 1961

TO CRAIG SYSTEMS, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 5, 1960, AND SUBSEQUENT CORRESPONDENCE CONCERNING INVITATION FOR BIDS NO. 60-61 ISSUED BY HEADQUARTERS, UNITED STATES MARINE CORPS.

THE INVITATION ISSUED ON OCTOBER 13, 1960, AS MODIFIED BY AMENDMENTS NOS. 1 AND 2, DATED NOVEMBER 2, 1960, REQUESTED BIDS TO BE OPENED ON NOVEMBER 18, 1960, FOR FURNISHED 80 ACCESSORY SPARE PARTS REPOSITORIES FOR ELECTRONIC SHOPS AN/GRM-32, AN/GRM-32A AND AN/GRM-38 IN ACCORDANCE WITH ATTACHED PURCHASE DESCRIPTION CSY-3-FY60-15, DATED JULY 25, 1960, AND AMENDMENT NO. 1, DATED SEPTEMBER 26, 1960, AND FIGURES 1 AND 2, TOGETHER WITH SUPPORTING DATA, HANDBOOKS, AND OTHER INFORMATION.

EIGHT BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE BID OF CRAIG SYSTEMS, INCORPORATED, WAS REJECTED AS NOT BEING RESPONSIVE TO THE INVITATION FOR FAILURE TO COMPLY WITH THE MANDATORY DELIVERY REQUIREMENT OF THE PROVISIONING LIST. THE BID WAS ALSO DETERMINED TO BE NONRESPONSIVE IN OTHER RESPECTS, TECHNICAL IN NATURE. THE AWARD WAS MADE TO THE LOWEST BIDDER DETERMINED TO MEET THE REQUIREMENTS OF THE SPECIFICATIONS.

CRAIG SYSTEMS, INCORPORATED, PROTESTS THE ACTION TAKEN BY THE MARINE CORPS ON THE BASIS THAT (1) ITS BID WAS RESPONSIVE TO THE MANDATORY DELIVERY REQUIREMENT OF THE PROVISIONING LIST, AND (2) THAT THE BID WAS RESPONSIVE TO THE TECHNICAL REQUIREMENTS OF THE SPECIFICATION OR THE SPECIFICATIONS WERE SO AMBIGUOUS AND UNCERTAIN AS TO VIOLATE THE BASIC PRECEPTS OF FORMAL ADVERTISING.

PAGE 8 OF THE INVITATION FOR BIDS PROVIDES:

"THE PROVISIONING CYCLE IS INITIATED BY SUBMITTAL OF AN ACCEPTABLE PROVISIONING LIST. BIDDERS ARE REQUIRED TO COMPLETE THE FOLLOWING CERTIFICATION:

" "BIDDER CERTIFIES THAT THE PROVISIONING LIST REQUIRED BY SPECIFICATION MIL-M-17993C/MC) WILL BE SUBMITTED WITHIN --------------- DAYS AFTER DATE OF CONTRACT AWARD.'

" "COMPLETION OF THIS CERTIFICATION CONSTITUTES A CONTRACT DELIVERY REQUIREMENT AND BIDS SUBMITTED WITHOUT COMPLETION OF THIS CERTIFICATION WILL BE REJECTED AS NONRESPONSIVE.'"

AMENDMENT NO. 1, WHICH CONTAINED EIGHT DIFFERENT CHANGES TO THE INVITATION, AMENDED THE ABOVE-QUOTED PROVISION AS FOLLOWS:

"ON PAGE 8 FOLLOWING PROVISIONING LIST CERTIFICATION INSERT THE FOLLOWING: "NOTE: TO COMPLY WITH REQUIRED DELIVERY THE PROVISIONING LIST MUST BE SUBMITTED IN NO MORE THAN 60 DAYS AFTER DATE OF CONTRACT IN NO MORE THAN 60 DAYS AFTER DATE OF CONTRACT AWARD. BIDDERS MUST NOT INSERT A PERIOD IN EXCESS OF 60 DAYS IN THE ABOVE CERTIFICATION.'"

IT IS ALLEGED THAT IN ORIGINALLY COMPUTING THE TIME FOR THE SUBMISSION OF THE PROVISIONING LIST, CRAIG SYSTEMS FILLED IN THE BLANK ON PAGE 8 OF THE INVITATION FOR BIDS, LISTING 180 DAYS FOR THE SUBMISSION OF THE PROVISIONING LIST. FOLLOWING THE PREPARATION OF THIS PORTION OF THE BID, CRAIG SYSTEMS RECEIVED AMENDMENT NO. 1 REQUIRING THE SUBMISSION OF THE PROVISIONING LIST IN NO MORE THAN 60 DAYS AFTER DATE OF CONTRACT AWARD, AND THROUGH ADMINISTRATIVE OVERSIGHT THE 180-DAY CERTIFICATION IN THE INVITATION ITSELF WAS NOT CHANGED. IT IS URGED THAT SINCE SIGNED COPIES OF THE AMENDMENTS WERE SUBMITTED WITH THE BID, CRAIG SYSTEMS WAS BOUND BY THE TERMS CONTAINED THEREIN. IT IS STATED THAT, IN ANY EVENT, THE TIME FOR FURNISHING THE PROVISIONING LIST CAN BE CORRECTED, AS AUTHORIZED BY ASPR 2-406.1 COVERING APPARENT MISTAKES, SINCE THE MODIFICATION WOULD MAKE THE BID MORE FAVORABLE TO THE GOVERNMENT.

THE AMENDMENT DID NOT SPECIFY WHEN THE PROVISIONING LIST MUST BE DELIVERED BUT SIMPLY ADVISED ,BIDDERS MUST NOT INSERT A PERIOD IN EXCESS OF 60 DAYS IN THE ABOVE CERTIFICATION.' THE BID OF CRAIG SYSTEMS AS SUBMITTED PROVIDED FOR 180 DAYS AND, THEREFORE, CLEARLY WAS NOT RESPONSIVE TO THE INVITATION. THE SUBMISSION OF AN ACCEPTABLE PROVISIONING LIST IS NECESSARY TO START THE PROVISIONING CYCLE AND IS A MATERIAL PART OF THE SPECIFICATION REQUIREMENTS. THERE IS NOTHING IN THE BID INDICATING THAT THE 180 DAYS SPECIFIED THEREIN BY CRAIG SYSTEMS IS AN OBVIOUS ERROR. DECISION OF AUGUST 22, 1960, B-143367, IT WAS HELD THAT THE FAILURE OF A BIDDER TO COMPLY WITH THE DELIVERY REQUIREMENT OF THE PROVISIONING LIST WAS A MATERIAL FACTOR AND WAS NOT A MINOR INFORMALITY OR IRREGULARITY WHICH COULD BE CURED AFTER THE BIDS WERE OPENED. IT MUST BE HELD, THEREFORE, THAT THE BID OF CRAIG SYSTEMS, INCORPORATED, WAS NOT RESPONSIVE TO THE INVITATION.

CRAIG SYSTEMS ALLEGES THAT ASIDE FROM THE QUESTION OF THE RESPONSIVENESS OF ITS BID WITH RESPECT TO THE TIME FOR DELIVERY OF THE PROVISIONING LIST, THE TECHNICAL REQUIREMENTS OF THE PURCHASE DESCRIPTION ARE VAGUE AND UNCERTAIN AND DID NOT AFFORD A BASIS FOR BIDDERS TO COMPETE ON EQUAL TERMS. THE PRINCIPAL OBJECTION APPEARS TO BE WITH RESPECT TO THE REQUIREMENTS OF PARAGRAPHS 3.3.3, 3.36 AND 3.38 OF THE PURCHASE DESCRIPTION, WHICH PROVIDE AS FOLLOWS:

"3.3.3 DESIGN OBJECTIVES. THE OBJECTIVES IN THE DESIGN OF THE ACCESSORY SPARE PARTS REPOSITORY SPECIFIED HEREIN ARE:

A. ACHIEVE MAXIMUM UTILIZATION OF AVAILABLE SPACE.

B. UTILIZE CONSTRUCTION CONCEPTS THAT WILL KEEP THE TOTAL WEIGHT OF THE REPOSITORY TO A MINIMUM AND AT THE SAME TIME MAINTAIN MAXIMUM TENSILS AND YIELD STRENGTH.

C. DESIGN FLEXABILITY INTO THE UNIT SO THAT AS FUTURE ELECTRONIC EQUIPMENTS COME INTO USE, PROVISIONS CAN BE MADE FOR STOWING THESE EQUIPMENTS ALONG WITH THEIR SUBASSEMBLIES AND MODULES WITH LITTLE OR NO MODIFICATION TO THE UNIT.

D. PROVIDE PROVISIONS TO PERMIT RAPID AND CONVENIENT MAINTENANCE OF INVENTORY RECORDS, AS WELL AS OTHER FORMS OF PAPER WORK INCIDENT TO THE EFFICIENT OPERATION OF A SUPPLY FUNCTION.

"3.36 FLEXIBILITY. EVERY EFFORT SHALL BE MADE TO PROVIDE SLIDING TRAYS AND DRAWERS OF A FLEXIBLE DESIGN FROM AN EQUIPMENT, SUB-ASSEMBLY OR MODULE HOLD DOWN HARDWARE ASPECT TO ENSURE ADEQUATE STORAGE OF A VARIETY OF THESE UNITS WHICH ARE NOW IN USE IN THE MARINE CORPS OR WHICH MAY BE USED IN THE FUTURE. THE MODULE HOLD DOWN ASSEMBLY TRAYS SHALL BE CAPABLE OF BEING REMOVED FROM THE REPOSITORY AND UTILIZED AS A PROTECTIVE SHIPPING DEVICE FOR THE MODULES.

"3.38 EQUIPMENT TO BE STOWED. PROVISIONS SHALL BE MADE FOR STORAGE OF A QUANTITY OF THE EQUIPMENT LISTED BELOW. THIS LIST IS NOT INTENDED TO BE RESTRICTIVE, BUT OUTLINES ITEMS PRESENTLY IN USE IN THE MARINE CORPS. THE REPOSITORY SHALL BE ADAPTABLE TO THE FUTURE REQUIREMENTS OF EQUIPMENT STOWAGE AND ADAPTABLE TO ITEMS PRESENTLY IN USE BY THE MARINE CORPS BUT NOT LISTED BELOW. IN ADDITION TO THE ITEMS LISTED BELOW PROVISIONS SHALL BE MADE FOR THE STOWAGE OF PARTS SUCH AS VACUUM TUBES, SEMICONDUCTORS, RESISTORS, CAPACITORS, GASKETS, KNOBS, FUSES, TRANSFORMERS, CONNECTORS, AND OTHER PARTS.'

THE PURCHASE DESCRIPTION SPECIFICALLY DETAILS GENERAL REQUIREMENTS, DESIGN OBJECTIVES, CONSTRUCTION, DIMENSIONS, MAXIMUM WEIGHT, PANEL MATERIAL, WELDING, LIFTING EQUIPMENT SERVICE CONDITIONS, LOADS, TRANSPORTABILITY, HEATING AND VENTILATION, INSTALLATIONS, EQUIPMENT TO BE STOWED, FINISHES, MARKING AND IDENTIFICATION, WORKMANSHIP, INSPECTION AND TESTS, ETC. PARAGRAPHS 1.1 AND 6.1 DESCRIBE THE SCOPE AND INTENDED USE OF THE REPOSITORY AS FOLLOWS:

"1.1 SCOPE. THIS PURCHASE DESCRIPTION ESTABLISHES THE REQUIREMENTS FOR A REPOSITORY COMPLETE WITH RACKS, DRAWERS, DESK AND FILING SYSTEM TO BE USED AS AN ACCESSORY ITEM WITH ELECTRONICS SHOPS AN/GRM-32, AN/GRM-32A AND AN/GRM-38 FOR THE STORAGE AND TRANSPORT OF SPARE ELECTRONICS EQUIPMENT SUB -ASSEMBLIES, MODULES AND PARTS.'

"6.1 INTENDED USE. THE ACCESSORY SPARE PARTS REPOSITORY FOR ELECTRONICS SHOP AN/GRM-32, AN/GRM-32A, AND AN/GRM-38 IS A UNIT DESIGNED FOR THE STOWAGE AND TRANSPORT OF SPARE ELECTRONICS EQUIPMENT, SUB-ASSEMBLIES, MODULES, PARTS AND PIECES UNDER FIELD CONDITIONS IN A MANNER WHICH WILL MAKE THESE COMPONENTS READILY ACCESSIBLE TO TECHNICIANS CHARGED WITH ELECTRONIC MAINTENANCE RESPONSIBILITIES.'

THE SPECIAL REQUIREMENTS, PAGES 5 AND 6 OF THE INVITATION FOR BIDS, REQUIRED THAT BIDDERS SUBMIT WITH THEIR BIDS DRAWINGS THAT ILLUSTRATE THE FOLLOWING FEATURES:

"A. MATERIAL LIST INTEGRAL WITH DRAWING (A COMPLETE AND COMPREHENSIVE MATERIAL DESCRIPTION INCLUDING SPECIFIC ALLOY TO BE USED).

B. PROPOSED METHODS OF MOUNTING, HOLDING OR STOWING ITEMS IN THE REPOSITORY.

C. DEPICT THE RESPECTIVE RACK IN WHICH EACH UNIT LISTED IN PARAGRAPH 3.38 OF THE PURCHASE DESCRIPTION CSY-3-F60-15 IS TO BE STOWED; THE QUANTITY OF EACH WHICH CAN BE STOWED IN THE REPOSITORY; AND THE GENERAL LAYOUT OF CABINETS, DRAWERS, DESK AND FILE AND CHAIR.

D. FLEXIBILITY OR ADAPTABILITY OF CHANGING THE REPOSITORY RACKS, CABINETS AND DRAWERS, AND DESK SO THAT EQUIPMENT OTHER THAN ITEMS LISTED IN THE PURCHASE DESCRIPTION (CSY-3-FY60-15) MAY BE STOWED IN THE REPOSITORY.'

THE DATA CRAIG SYSTEMS SUBMITTED WITH ITS BID WAS DETERMINED NOT TO MEET THE ABOVE REQUIREMENTS IN THAT IT FAILED TO SHOW (1) COMPLETE LIST OF MATERIALS, (2) COMPLETE METHOD OF MOUNTING OR STOWING EQUIPMENT, (3) FLEXIBILITY AND ADAPTABILITY OF RACKS AND CABINET, AND (4) UTILIZATION OF SPACE.

CRAIG SYSTEMS TAKES EXCEPTION TO SUCH DETERMINATION ON THE BASIS THAT THEY WERE NOT REQUIRED UNDER THE SPECIFICATIONS. FOR INSTANCE, THE DATA SHOWED THAT CRAIG SYSTEMS DID NOT PROPOSE TO UTILIZE APPROXIMATELY 40 PERCENT OF THE AVAILABLE SPACE IN THE SHELTER. CRAIG SYSTEMS CONTENDS THAT UNDER THE SPECIFICATIONS ALL THAT WAS REQUIRED WAS THAT THE BIDDER UTILIZE THE SPACE WITHIN THE SHELTER IN AS COMPACT AN AREA AS POSSIBLE TO INCLUDE THE EQUIPMENT SPECIFICALLY DESIGNATED FOR STORAGE AND TO LEAVE THE REST OF THE SPACE EMPTY FOR FUTURE UNDEFINED ITEMS.

WE CANNOT AGREE WITH THE CONTENTIONS OF CRAIG SYSTEMS. AS REPORTED BY THE MARINE CORPS, WE BELIEVE THAT THE ONLY REASONABLE INTERPRETATION THAT CAN BE PLACED UPON THE REQUIREMENTS OF THE PURCHASE DESCRIPTION IS THAT THE WALL SPACE BE COMPLETELY UTILIZED FOR STORAGE PURPOSES, THAT THE STORAGE CONTAINERS SHOULD BE FLEXIBLE AS TO POSITIONING TO OBTAIN PROPER DISTRIBUTION OF WEIGHT FOR AIR-BORNE TRANSPORTABILITY, AND THAT INDIVIDUAL STORAGE PLACES BE ADAPTABLE TO VARYING HEIGHTS SO AS TO ACCOMMODATE A VARIETY OF ELECTRONIC EQUIPMENT, SUB-ASSEMBLIES AND PARTS. WITH RESPECT TO THE REQUIREMENT THAT THE SPACE BE ADAPTABLE FOR ITEMS PRESENTLY IN USE BUT NOT LISTED, AND FOR FUTURE REQUIREMENTS, IT CAN ONLY BE ASSUMED THAT SUCH PROVISIONS HAVE REFERENCE TO SIMILAR EQUIPMENT, SUB-ASSEMBLIES AND PARTS TO THOSE SPECIFIED. IN THAT CONNECTION, IT IS REPORTED THAT THE TYPE OF ELECTRONIC EQUIPMENT BEING PURCHASED IS OF MODULAR CONSTRUCTION, THE DIMENSIONS OF WHICH ARE LISTED IN SPECIFICATION MIL-E-16400 REFERRED TO IN THE PURCHASE DESCRIPTION, AND REFERRED TO BY CRAIG SYSTEMS AS THE NAVY'S AND MARINE CORPS' "STANDARD BIBLE.' WE MUST THEREFORE AGREE THAT THE INVITATION ASKS CLEARLY ENOUGH FOR A DESIGN MAKING COMPLETE UTILIZATION OF THE SPACE AVAILABLE WITHIN THE REPOSITORY, AND WE ARE NOT FACED WITH THE QUESTION OF EVALUATION BETWEEN BIDS WHICH PROPOSED COMPLETE UTILIZATION BUT IN DIFFERENT MANNERS.

AS STATED BY CRAIG SYSTEMS, IT IS A FUNDAMENTAL PRINCIPLE THAT SPECIFICATIONS MUST BE SO DRAWN AS TO AFFORD ALL BIDDERS AN OPPORTUNITY TO COMPETE ON AN EQUAL BASIS AND THAT THE SPECIFICATIONS MUST BE SUFFICIENTLY DEFINITE TO PERMIT THE PREPARATION AND EVALUATION OF BIDS ON A COMMON BASIS. IN THE INSTANT CASE, IT APPEARS THAT THE SPECIFICATIONS ARE SPECIFIC IN ALL INSTANCES EXCEPT THAT BIDDERS WERE ALLOWED A CERTAIN LEEWAY IN DESIGN AND INSTALLATION OF STORAGE RACKS, CABINETS AND DRAWERS TO AFFORD FLEXIBILITY AND THE MAXIMUM UTILIZATION OF SPACE WITHIN THE SHELTER FOR THE STORAGE OF THE EQUIPMENT AND PARTS LISTED, AND EQUIPMENT AND PARTS NOT LISTED BUT PRESENTLY IN USE, OR WHICH WILL SUBSEQUENTLY COME INTO USE. THE LEEWAY ALLOWED BIDDERS IN THAT REGARD WAS SEVERELY LIMITED BY OTHER PROVISIONS OF THE SPECIFICATION AND THE VERY PURPOSE AND NATURE OF THE SHELTER.

IN THE CIRCUMSTANCES WE WOULD NOT BE WARRANTED IN QUESTIONING THE ADMINISTRATIVE DETERMINATION THAT THE SPECIFICATIONS ARE SUFFICIENTLY DEFINITE AND THAT BIDDERS WERE AFFORDED AN OPPORTUNITY TO COMPETE ON AN EQUAL BASIS. THERE IS, THEREFORE, NO BASIS TO QUESTION THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.