B-154560, JUL. 24, 1964

B-154560, JUL. 24, 1964

TO GENERAL MICROWAVE CORPORATION:

YOUR TELEFAX DATED MAY 22, 1964, AND YOUR LETTERS DATED MAY 26 AND MAY 27, 1964, ADDRESSED TO THE NAVY PURCHASING OFFICE IN WASHINGTON, D.C., PROTESTING THE PROPOSED AWARD OF A CONTRACT TO THE HEWLETT PACKARD COMPANY UNDER INVITATION FOR BIDS NO. 600-551-64 ISSUED ON JANUARY 31, 1964, HAVE BEEN REFERRED TO OUR OFFICE.

THE THREE BIDS RECEIVED IN THIS PROCUREMENT OF 61 NOISE FIGURE METERS, CAQI-H-01-340B (HEWLETT-PACKARD), OR EQUAL, WITH TECHNICAL PROVISIONING DOCUMENTATION AND AN OPTION FOR MAINTENANCE REPAIR PARTS WERE OPENED ON FEBRUARY 26, 1964. THEY WERE AS FOLLOWS:

TABLE

GENERAL MICROWAVE CORPORATION $37,653.50

HEWLETT-PACKARD COMPANY 43,839.86

AIRBORNE INSTRUMENTS LAB.,

CUTLER-HAMMER, INC. 52,931.19

BY MEMORANDUM DATED APRIL 3, 1964, FROM THE BUREAU OF SHIPS TO THE NAVY PURCHASING OFFICE, YOUR BID WAS DECLARED TECHNICALLY NONRESPONSIVE AS NOT CONFORMING WITH PARAGRAPH 1 (A) (2) OF THE PROVISION OF THE INVITATION ENTITLED "DATA REQUIREMENTS.' THE PERTINENT PARAGRAPHS READ AS FOLLOWS:

"1. IN ORDER THAT A DETERMINATION MAY BE MADE AS TO WHETHER OR NOT AN OFFERED ALTERNATE ITEM IS IN FACT EQUAL TO THE EQUIPMENT SPECIFIED AND MEETS THE SPECIFICATION SET FORTH IN THE TECHNICAL EXHIBIT, IT IS ESSENTIAL THAT INFORMATION BE SUBMITTED WITH BIDS AS FOLLOWS:

"A. SUBMIT DETAILED TEST PROCEDURES AND CERTIFIED TEST DATA COVERING MEASUREMENTS OF THE PARAMETERS LISTED IN THE TECHNICAL EXHIBIT.

"/2) THE TEST DATA SHALL CONSIST OF THE RESULTS OF TEST/S) ON MODELS IDENTICAL TO THOSE WHICH ARE PROPOSED TO BE FURNISHED AND SHALL INCLUDE SUFFICIENT INFORMATION TO VERIFY THE CHARACTERISTICS DESCRIBED IN THE APPLICABLE EXHIBIT.'

THE TEST DATA SUBMITTED BY YOUR COMPANY WAS FOUND TO BE DEFICIENT IN THAT IT DID NOT RESULT FROM TESTS OF A MODEL IDENTICAL TO THE END PRODUCT TO BE FABRICATED PURSUANT TO THE CONTRACT BUT RATHER PERTAINED TO ONE OF YOUR STANDARD COMMERCIAL ITEMS, THE MODEL 506 NOISE FIGURE METER. HENCE YOU PROVIDED NO DATA ON OPERATION AT AN INPUT FREQUENCY OF 15 M.C. (THE MODEL 506 IS NOT PRESENTLY DESIGNED TO OPERATE AT THIS FREQUENCY) AND THE DATA PERTAINING TO THE SUBJECTS OF FREQUENCY RANGE, NOISE FIGURE RANGE, ACCURACY, BANDWIDTH, AND POWER OUTPUT FOR WAVEGUIDE SOURCES, HAVING BEEN DERIVED FROM TESTS PERFORMED WITH THE MODEL 506, WOULD BE RENDERED INAPPLICABLE IN THE OPINION OF GOVERNMENT TECHNICAL EVALUATORS BY THE MODIFICATIONS NECESSARY TO MAKE THAT EQUIPMENT CONFORM TO THE REQUIREMENTS OF EXHIBIT A.

YOU ARGUE THAT YOUR BID SATISFIED THE REQUIREMENTS OF THE INVITATION BY SUPPLYING TEST DATA ON THE STANDARD UNIT WHICH YOU PROPOSED TO MODIFY FOR DELIVERY UNDER THE CONTRACT IF YOU RECEIVED THE AWARD AND BY FURNISHING DESCRIPTIVE MATERIAL ABOUT THE PROPOSED MODIFICATIONS. YOU RELY ON PARAGRAPH (C) (2) OF THE "BRAND NAME OR EQUAL" CLAUSE OF THE INVITATION WHICH STATES:

"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.'

YOU STATE THAT THE ONLY ALTERATION NEEDED TO BE PERFORMED ON YOUR MODEL 506 IN ORDER TO MAKE IT COMPLETELY ACCORD WITH THE REQUIREMENTS OF EXHIBIT A IS THE TRIVIAL MODIFICATION OF THE IF INPUT FREQUENCIES AND YOU REQUEST THE OPPORTUNITY TO CURE THE DATA DEFICIENCIES BY NEW SUBMISSIONS OR, ALTERNATIVELY, READVERTISEMENT OF THE PROCUREMENT.

WE THINK THAT THE PROVISIONS OF THE "DATA REQUIREMENTS" AND "BRAND NAME OR EQUAL" ARTICLES OF THE INVITATION, INSOFAR AS THEY PERTAIN TO THE SUBMISSION OF DESCRIPTIVE MATERIAL WITH THE BID, ARE COMPLEMENTARY AND NOT CONTRADICTORY. THE CLEAR AND UNMISTAKABLE IMPORT OF THE INVITATION IS THAT BIDDERS WHO DO NOT INTEND TO SUPPLY THE BRAND NAME ITEM, BUT WHO INTEND RATHER TO DELIVER A PRODUCT OF THEIR OWN OR ANOTHER'S MANUFACTURE ARE OBLIGED PRIOR TO OPENING TO CAREFULLY DESCRIBE ANY MODIFICATIONS THEREIN WHICH ARE NECESSITATED BY THE GOVERNMENT'S PRODUCT DESCRIPTION, TO CLEARLY MARK ANY STANDARD DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS, TO ACTUALLY FABRICATE A PROTOTYPE OF THE OFFERED UNIT, AND THEN TO TEST THAT UNIT FOR RESULTS CONFORMABLE TO THE PERFORMANCE STANDARDS SET FORTH IN EXHIBIT A. ONEROUS AS THESE REQUIREMENTS MAY SEEM, WE THINK THE DEPARTMENT OF THE NAVY WAS AUTHORIZED TO IMPOSE THEM, AND THAT ANY BID CONTAINING INCOMPLETE DESCRIPTIVE DATA, OR DATA NOT STRICTLY IN COMPLIANCE WITH THE PERFORMANCE SPECIFICATIONS SET FORTH IN THE EXHIBIT, MIGHT PROPERLY BE DECLARED NONRESPONSIVE FOR FAILURE OF THE BIDDER TO DEMONSTRATE THE REQUISITE TECHNICAL QUALIFICATIONS OF HIS PRODUCT. 40 COMP. GEN. 132, 458.

PERFORMANCE IS AN ELEMENT OF QUALITY AND DEVIATIONS FROM THE TERMS OF AN INVITATION AFFECTING QUALITY ARE MATERIAL. 30 COMP. GEN. 179. IN THE PROCUREMENT OF HIGHLY SPECIALIZED EQUIPMENT, AN ADMINISTRATIVE AGENCY PROPERLY MAY REQUIRE THE SUBMISSION OF DESCRIPTIVE MATERIALS WITH THE BID IN ORDER TO ENABLE THE GOVERNMENT TO INTELLIGENTLY CONCLUDE PRECISELY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY THE MAKING OF AN AWARD. 41 COMP. GEN. 366; 39 COMP. GEN. 595, 598; 36 COMP. GEN. 415.

THE RESPONSIBILITY OF YOUR COMPANY AND ITS ABILITY TO PRODUCE A SATISFACTORY PRODUCT HAVE NOT BEEN BROUGHT INTO QUESTION BY EITHER THE PROCURING AGENCY OR OUR OFFICE. THE PURPOSE OF THE INVITATION REQUIREMENT FOR THE SUBMISSION OF CERTIFIED TEST RESULTS, HOWEVER, WAS NOT TO ESTABLISH THIS ELEMENT OF YOUR STANDING AS A BIDDER. COMPARE 37 COMP. GEN. 763, 764. NOR MAY WE NOW ACCEPT YOUR BLANKET OFFER TO COMPLY WITH THE TECHNICAL REQUIREMENTS SCHEDULED IN EXHIBIT A IN COMPLETE ABSOLUTION OF THE DEFECTS IN THE DESCRIPTIVE MATERIALS SUBMITTED WITH YOUR BID. COMP. GEN. 415. AN EXPRESSION OF INTENT TO COMPLY WITH SPECIFICATIONS IS INSUFFICIENT TO OVERCOME THE OMISSION TO FULFILL A MATERIAL REQUISITE OF THE INVITATION. IN ORDER TO DEMONSTRATE THE RESPONSIVENESS OF HIS BID ON THIS PROCUREMENT A BIDDER MUST HAVE TANGIBLY MANIFESTED THIS INTENT TO COMPLY BY SUBMITTING THE REQUESTED DESCRIPTIVE MATERIALS WITH HIS BID IN A TIMELY MANNER AND IN PROPER FORM.

IT CANNOT BE SAID THAT THE DESCRIPTIVE MATERIALS REQUIREMENT IN THIS CASE WAS INDEFINITELY STATED OR UNNECESSARY TO A DETERMINATION OF THE BIDDERS' RESPONSIVENESS (COMPARE B-150868 DATED APRIL 29, 1963, 42 COMP. GEN. 598), OR THAT THE INVITATION WAS UNREASONABLY RESTRICTIVE AND IMPOSSIBLE WITH WHICH TO COMPLY FOR ALL BUT THE MANUFACTURER OF THE BRAND NAME ITEM (COMPARE 41 COMP. GEN. 76; 38 COMP. GEN. 636).

YOUR LETTERS REQUEST THE OPPORTUNITY TO REMEDY ANY DEFECTS AND INADEQUACIES FOUND IN YOUR BID AFTER BID OPENING IN THE EVENT WE DO CONCLUDE THAT YOUR BID IS NOT RESPONSIVE TO THE TERMS OF THE INVITATION. ANY REVISION OF YOUR BID AT THIS TIME IS PROHIBITED BY THE RULE THAT A NONRESPONSIVE BID MAY NOT BE CORRECTED SO AS TO RENDER IT RESPONSIVE. COMP. GEN. 819. THE INADVERTENT OMISSION TO SUPPLY REQUIRED TECHNICAL DATA MAY NEITHER BE WAIVED NOR TREATED AS A REMEDIABLE MISTAKE. 41 COMP. GEN. 366; 40 COMP. GEN. 132; 37 COMP. GEN. 763; 36 COMP. GEN. 415.

ALTERNATIVELY, YOU CONTEND THAT, IF YOU CANNOT NOW BE ALLOWED TO SUBMIT ADDITIONAL DATA IN ORDER TO CLARIFY YOUR OFFER, IN THE BEST INTERESTS OF THE GOVERNMENT THE INVITATION SHOULD BE CANCELLED AND THE REQUIREMENT READVERTISED. WE HAVE HELD THE CANCELLING OF AN INVITATION AFTER BIDS HAVE BEEN EXPOSED TO BE DAMAGING TO THE INTEGRITY OF THE COMPETITIVE BIDDING PROCESS AND PREJUDICIAL TO BIDDERS, AND WE HAVE RECOMMENDED THIS PROCEDURE NOT BE FOLLOWED ABSENT A COMPELLING REASON. 42 COMP. GEN. 523; ALSO SEE ARMED SERVICES PROCUREMENT REGULATION 2-404./1) (A).

FOR THE REASONS OUTLINED ABOVE, WE MUST INFORM YOU THAT THE DETERMINATION OF THE BUREAU OF SHIPS TO DISREGARD YOUR BID IN MAKING AWARD UNDER INVITATION FOR BIDS NO. 600-551-64 WILL NOT BE DISTURBED. THE DEPARTMENT OF THE NAVY IS BEING REQUESTED TO REVISE THE "DATA REQUIREMENTS" CLAUSE BEFORE EMBODIMENT IN ANY FUTURE INVITATION TO EXPRESSLY STATE THAT ANY BID WHICH FAILS TO PRESENT THE REQUIRED DATA IN PROPER FORM WILL BE REJECTED AS NONRESPONSIVE. COMPARE 37 COMP. GEN. 763; 36 COMP. GEN. 376.