B-130302, JANUARY 17, 1957, 36 COMP. GEN. 515

B-130302, JANUARY 17, 1957, 36 COMP. GEN. 515

BIDS - QUALIFIED - IMPROVEMENTS IN SPECIFICATIONS PROPOSED BY BIDDER A STATEMENT INCLUDED WITH A BID TO THE EFFECT THAT CERTAIN IMPROVEMENTS OVER THE SPECIFICATIONS CAN BE PROVIDED DOES NOT QUALIFY THE BID WHICH WAS OTHERWISE RESPONSIVE TO THE TERMS AND CONDITIONS OF THE INVITATION.

TO J. C. SNYDER, DEPARTMENT OF THE NAVY, JANUARY 17, 1957:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 9, 1957, YOUR REFERENCE IFB 600-449-57'S (L598) SER 159-2, CONCERNING THE BID OF THE NATIONAL INSTRUMENT LABORATORIES, INC., IN RESPONSE TO INVITATION FOR BIDS NO. 600- 449-57'S ISSUED ON OCTOBER 2, 1956.

THE INVITATION REQUESTED BIDS FOR 19 METER TEST PANELS. BIDS WERE OPENED ON NOVEMBER 1, 1956. THE LOW BIDDER WAS DETERMINED NOT TO BE RESPONSIBLE AND THEREFORE HIS BID IS NOT UNDER CONSIDERATION. THE SECOND LOW BIDDER, NATIONAL INSTRUMENT LABORATORIES, INC., APPENDED TO ITS BID A STATEMENT WHICH READS, IN PART--- " OUR EXPERIENCE IN BUILDING THE FIRST TWO METER TEST PANELS WHICH FORMED THE BASIS FOR THE PRESENT PROCUREMENT, INDICATES CERTAIN IMPROVEMENTS OVER THE ORIGINAL, WHICH CAN BE PROVIDED IN THE FORTHCOMING UNITS AS FOLLOWS: .' THERE FOLLOWED SEVEN SUGGESTED CHANGES IN THE SPECIFICATIONS. THE BID OF THE THIRD LOW BIDDER, NATIONAL ELECTRONICS LABORATORIES, INC., WAS PROPER IN ALL RESPECTS. THE QUESTION RAISED IS WHETHER THE APPENDED STATEMENT SO QUALIFIED THE BID OF THE NATIONAL INSTRUMENT LABORATORIES, INC., AS TO RENDER IT NONRESPONSIVE.

THE APPENDED STATEMENT LISTED "CERTAIN IMPROVEMENTS" WHICH "CAN BE PROVIDED.' WEBSTER'S NEW INTERNATIONAL DICTIONARY, UNABRIDGED, SECOND EDITION, DEFINES "CAN" AS "TO KNOW" OR "TO BE ABLE.' THE SENSE OF THE STATEMENT, THEREFORE, IS THAT THE NATIONAL INSTRUMENT LABORATORIES HAS THE ABILITY TO MAKE CERTAIN CHANGES IN THE SPECIFICATIONS WHICH IT FELT WOULD REPRESENT AN IMPROVEMENT. THERE IS NO INDICATION, EITHER IN THE STATEMENT OR IN THE BID ITSELF, THAT THE COMPANY WAS NOT READY, ABLE AND WILLING TO SUPPLY THE METER TEST PANELS STRICTLY IN ACCORDANCE WITH THE SPECIFICATIONS INCORPORATED IN THE INVITATION, OR THAT IT WAS PROPOSING TO INCORPORATE THE SUGGESTED IMPROVEMENTS UNLESS SO AUTHORIZED. AS INDICATED IN THE STATEMENT, NATIONAL INSTRUMENT LABORATORIES HAD BUILT THE FIRST TWO METER TEST PANELS WHICH FORMED THE BASIS FOR THE PROCUREMENT IN QUESTION. IT IS NOT UNLIKELY THAT IN THE COURSE OF CONSTRUCTION, THEIR PERSONNEL HAD NOTED THE POSSIBILITY OF CHANGES IN THE SPECIFICATIONS WHICH COULD, TO THEIR MINDS, RESULT IN AN IMPROVED END PRODUCT. UNDER THE CIRCUMSTANCES, WE REGARD THE BID, TOGETHER WITH THE APPENDED STATEMENT, AS AN OFFER TO COMPLY WITH THE TERMS OF THE INVITATION INCLUDING THE SPECIFICATIONS, AND A PROPOSAL TO MAKE, AT THE OPTION OF THE AGENCY, CERTAIN CHANGES IN DESIGN WHICH MIGHT RESULT IN AN IMPROVED PRODUCT. IN ACCORDANCE WITH THE ABOVE, AND SINCE A BID IS PRESUMED TO BE RESPONSIVE TO THE TERMS AND CONDITIONS OF THE INVITATION UNLESS CLEARLY QUALIFIED BY THE BIDDER, THE BID OF THE NATIONAL INSTRUMENT LABORATORIES SHOULD BE REGARDED AS RESPONSIVE TO THE INVITATION AND NOT QUALIFIED. CF. B-312, JANUARY 9, 1939.

WHILE THE BIDDER'S STATEMENT ALSO CONTAINED THE LANGUAGE: " THE IMPROVEMENTS LISTED ABOVE ARE PLANNED IN ADDITION TO" CERTAIN OTHER LISTED REQUIREMENTS OF THE SPECIFICATIONS, WE BELIEVE THAT, IN CONTEXT, THE WORD "PLANNED" WAS NOT INTENDED TO MEAN MORE THAN "PROPOSED.'

THE FILE FURNISHED WITH THE SUBMISSION IS ENCLOSED, TOGETHER WITH A COPY OF OUR LETTER OF TODAY TO THE SECRETARY OF THE NAVY.