B-157151, AUG. 25, 1965

B-157151, AUG. 25, 1965

TO CHESAPEAKE INSTRUMENT CORPORATION:

YOUR TELEGRAM OF JULY 1, 1965, AS SUPPLEMENTED BY YOUR LETTER OF JULY 9, PROTESTS AWARD OF A CONTRACT BY THE DEPARTMENT OF THE NAVY TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. 600-376-65, ISSUED APRIL 26, 1965, BY THE UNITED STATES NAVY PURCHASING OFFICE (NPO). SPECIFICALLY, YOU CONTEND THAT THE AWARD OF THE CONTRACT ON JULY 2 TO THE SECOND LOW BIDDER AFTER YOUR PROTEST HAD BEEN REGISTERED AND WITHOUT DISCUSSING THE MATTER WITH YOU WAS AN IMPROPER ACTION ON THE PART OF THE NAVY SINCE IT WAS CONTRARY TO THE PROVISIONS OF ARMED SERVICES PROCUREMENT REGULATION 2-408.1, REQUIRING THAT A PROTESTING UNSUCCESSFUL LOWER BIDDER SHALL BE ADVISED THE BASIS FOR AWARD TO ANOTHER BIDDER.

THE IFB SOLICITED BIDS, ON A 100 PERCENT SMALL BUSINESS SET-ASIDE BASIS, TO FURNISH 85 REGULATING LINE AMPLIFIERS AND ASSOCIATED TECHNICAL MANUALS, PROVISIONING TECHNICAL DOCUMENTATION AND SPARE PARTS. THE SPECIFICATIONS INCLUDED A DESCRIPTIVE DATA PROVISION READING AS FOLLOWS:

"REQUIREMENT FOR DESCRIPTIVE LITERATURE (OCT. 1960)

"/A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID IN WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO COMPLETE PRELIMINARY DESIGN AND ENGINEERING APPROACH.

"/B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT IF THE MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE, IT MAY BE CONSIDERED UNDER THE PROVISION FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.

"DESCRIPTION OF LITERATURE

"WITH REFERENCE TO THE CLAUSE ENTITLED REQUIREMENT FOR DESCRIPTIVE LITERATURE, LITERATURE DESCRIBING THE FOLLOWING IS REQUIRED:

1. PHYSICAL DIMENSIONS, MANUFACTURER, MODEL AND AN NOMENCLATURE IF ANY.

2. WEIGHT

3. POWER REQUIREMENTS

4. SET-UP OR ALIGNMENT TIME AND PROCEDURES

5. RELIABILITY

6. SAFETY FEATURES

7. RFI SUPPRESSION TECHNIQUES

8. BLOCK AND SCHEMATIC DIAGRAMS WITH TUTORIAL NARRATIVES

9. MECHANICAL DESIGN

10. FINISH TO BE USED ON METAL SURFACES"

SEVEN BIDS WERE RECEIVED AND OPENED ON MAY 26, AS SCHEDULED. YOUR BID OF $51,425 WAS LOW, AND THE BID OF MULTRONICS, INCORPORATED, IN THE AMOUNT OF $59,776.25, WAS SECOND LOW.

UPON TECHNICAL EVALUATION OF THE BIDS, THE RESULTS OF WHICH WERE RECEIVED AT NPO ON JUNE 24, IT WAS DETERMINED THAT FIVE OF THE BIDS WERE RESPONSIVE BUT YOUR BID AND ONE HIGHER BID WERE NONRESPONSIVE ON THE BASIS OF INADEQUACY OF DESCRIPTIVE DATA. THE DEFICIENCIES IN YOUR BID ARE SET FORTH AS FOLLOWS:

"1. OFFERS NO NOMENCLATURE OR MANUFACTURER'S DATA.

"2. THE OVERALL POWER REQUIREMENTS OF 5 WATTS IS UNUSUALLY LOW IN COMPARISON WITH EXISTING UNITS WHICH REQUIRE 25 OR MORE WATTS OF POWER.

"3. NO DETAILS ARE GIVEN ON ALIGNMENT PROCEDURES.

"4. IN CONNECTION WITH SAFETY FEATURES THERE IS NO DISCUSSION OF GROUND CONDUCTORS OR GROUND POTENTIALS OF EXTERNAL METAL PARTS AS REQUIRED BY MIL -E-16400.

"5. WHILE RFI SUPPRESSION IS DISCUSSED THE BIDDER MAKES NO REFERENCE TO AN ATTEMPT TO MEET MIL-I-16910 AS REQUIRED.

"6. THERE IS NO DISCUSSION OF THE FUNCTIONAL RELATIONSHIP BETWEEN PARTS OF THE BLOCK DIAGRAM.

"7. THERE IS NO TUTORIAL NARRATIVE ON THE SCHEMATIC DIAGRAM. IN THIS CONNECTION NO REFERENCE IS MADE TO THE EXPANSION AND COMPRESSION TIME CONSTANTS REQUIRED. THERE IS NO INDICATION AS TO LEVEL CONTROLS ON THE AMPLIFIER CARDS. NO REFERENCE TO NOR DISCUSSION OF DISTORTION OR FREQUENCY RESPONSE IS GIVEN.

"8. IN REGARD TO MECHANICAL DESIGN VAGUE REFERENCE IS MADE TO THE AC-DC POWER SUPPLY BUT NONE OF ITS FEATURES SUCH AS THE REQUIRED REMOVABILITY IS DISCUSSED. A POWER ALARM FAILURE LIGHT IS MENTIONED BUT THERE IS NO DISCUSSION OF THE REQUIRED ALARM PROVISIONS. REQUIRED REMOVABILITY OF PRINTED CIRCUIT AMPLIFIER CARDS IS NOT DISCUSSED NOR IS THE REQUIRED FEATURE OF TYING INPUTS AND OUTPUTS OF REMOVED CARDS TOGETHER. THE REQUIREMENT OF STRAPPING TO REMOVE THE EXPANSION FEATURE IS NOT DISCUSSED. THE ADJACENT USE OF DISSIMILAR METALS SUCH AS ALUMINUM AND STEEL IN THE DOOR AND CASE RESPECTIVELY IS NOT IN KEEPING WITH MIL-E- 16400.

"9. THE REQUIREMENT FOR PROTECTIVE FINISHED IN ACCORDANCE WITH MIL E- 16400 IS IGNORED.'

ACCORDINGLY, YOUR BID WAS REJECTED, AND AWARD WAS MADE ON JULY 2 TO MULTRONICS, INCORPORATED, AS THE LOWEST RESPONSIVE BIDDER.

REGARDING THE FACT THAT THE AWARD WAS MADE SUBSEQUENT TO OUR PROTEST TO OUR OFFICE AND WITHOUT NOTICE TO YOU, IT IS OUR UNDERSTANDING THAT WHILE OUR OFFICE HAD NOTIFIED THE NAVY PURCHASING OFFICE ON JULY 2 OF YOUR TELEGRAM OF JULY 1, NOTICE HAD NOT IN FACT REACHED THE CONTRACTING OFFICER AT THE TIME AWARD WAS MADE. IT IS REPORTED, HOWEVER, THAT FURTHER ACTION WAS POSTPONED PENDING OUR DECISION ON YOUR PROTEST.

UNDER THE APPLICABLE PROCUREMENT STATUTE, 10 U.S.C. 2305 (C), AWARD IS REQUIRED TO BE MADE IN FORMALLY ADVERTISED PROCUREMENTS TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED. ASPR 2-404.2 (A) REQUIRES REJECTION OF BIDS WHICH FAIL TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION.

WE HAVE RECOGNIZED THAT IN THE PROCUREMENT OF TECHNICAL EQUIPMENT, AN ADMINISTRATIVE AGENCY MAY REQUIRE BIDDERS TO FURNISH WITH THEIR BIDS SPECIFIC DATA ESSENTIAL TO A DETERMINATION WHETHER THE EQUIPMENT OFFERED BY THE BIDDERS MEETS THE REQUIREMENTS OF THE GOVERNMENT AND THAT WHERE THE DATA REQUIREMENT IS SUFFICIENTLY SET FORTH AND BIDDERS ARE ON NOTICE THAT FAILURE TO COMPLY WITH SUCH REQUIREMENT WILL PRECLUDE CONSIDERATION OF THEIR BIDS, FAILURE TO SUBMIT THE SPECIFIED INFORMATION MAY NOT BE WAIVED. 36 COMP. GEN. 415.

WITH RESPECT TO YOUR COMPLAINT THAT THE AGENCY REFUSED TO COMPLY WITH YOUR REQUEST FOR A DETAILED STATEMENT OF THE GROUNDS FOR REJECTION OF YOUR BID, WE ARE ADVISED THAT IT WAS THE OPINION OF NPO THAT AFTER NOTICE OF A PROTEST TO THIS OFFICE FURTHER EXPLANATION OF THE ADMINISTRATIVE ACTION SHOULD BE FURNISHED ONLY TO THIS OFFICE. IN THE CIRCUMSTANCES, WE DO NOT BELIEVE THERE WAS ANY VIOLATION OF THE INTENT OF THE PROVISION OF ASPR 2- 408.1 QUOTED BY YOU.

FROM THE INFORMATION OF RECORD, IT IS APPARENT THAT WHILE YOUR BID WAS ACCOMPANIED BY DESCRIPTIVE DATA, SUCH DATA DID NOT CONFORM TO THE REQUIREMENTS SET FORTH IN THE IFB WITH THE RESULT THAT THE NAVY TECHNICAL EVALUATION STAFF WAS UNABLE TO DETERMINE THAT THE EQUIPMENT YOU OFFERED WOULD MEET THE GOVERNMENT'S REQUIREMENTS AS SET FORTH IN THE SPECIFICATIONS. THEREFORE, WHILE IT IS REGRETTABLE THAT THE AWARD TO THE LOWEST RESPONSIVE BIDDER WAS NOT POSTPONED UNTIL AFTER YOUR PROTEST HAD BEEN CONSIDERED BY OUR OFFICE, NEVERTHELESS THE REJECTION OF YOUR BID WAS PROPER UNDER THE STATUTE, THE PROCUREMENT REGULATION AND THE TERMS OF THE IFB. ACCORDINGLY, WE FIND NO LEGAL BASIS TO QUESTION THE AWARD.