B-132312, SEP. 9, 1957

B-132312: Sep 9, 1957

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

ESQUIRE: REFERENCE IS MADE TO LETTER DATED JUNE 21. ALL BIDDERS UNDER THIS IFB WILL BE REQUIRED TO SUBMIT TO THE GOVERNMENT THE DATA LISTED BELOW. SUCH DATA WILL BE IN STRICT COMPLIANCE WITH THE SPECIFICATION AND FURNISHED TO THE GOVERNMENT WITH THE BID. FAILURE OF THE BIDDER TO SUBMIT COMPLETE DATA OR DATA SUBMITTED NOT IN STRICT COMPLIANCE WITH THE SPECIFICATION WILL RENDER HIS BID NONRESPONSIVE TO THE IFB. WHICH WILL BE REQUIRED FOR EVALUATION PURPOSES IS AS FOLLOWS: "1. "B. IN NO CASE WILL AN AWARD BASED UPON THE FOREGOING DATA CONSTITUTE A WAIVER OF THE REQUIREMENTS OF THE SPECIFICATION AS TO ACCEPTANCE. THE REPORT FURNISHED IN THE MATTER BY THE DEPARTMENT OF THE AIR FORCE INDICATES THAT NINE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION.

B-132312, SEP. 9, 1957

TO DAVID A. ERODY, ESQUIRE:

REFERENCE IS MADE TO LETTER DATED JUNE 21, 1957, AND SUBSEQUENT CORRESPONDENCE PROTESTING ON BEHALF OF RAPID ELECTRIC COMPANY THE REJECTION OF ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 09- 603-57-423, ISSUED BY WARNER ROBINS AIR MATERIEL AREA, ROBINS AIR FORCE BASE, GEORGIA.

THE INVITATION REQUESTED BIDS FOR FURNISHING A NUMBER OF TYPE B-9 PORTABLE METALLIC RECTIFIERS IN ACCORDANCE WITH CERTAIN SPECIFICATIONS. PARAGRAPH H, SET FORTH ON PAGE 6 OF THE INVITATION, PROVIDED AS FOLLOWS:

"ADDITIONAL DATA REQUIREMENTS: A. ALL BIDDERS UNDER THIS IFB WILL BE REQUIRED TO SUBMIT TO THE GOVERNMENT THE DATA LISTED BELOW. SUCH DATA WILL BE IN STRICT COMPLIANCE WITH THE SPECIFICATION AND FURNISHED TO THE GOVERNMENT WITH THE BID. FAILURE OF THE BIDDER TO SUBMIT COMPLETE DATA OR DATA SUBMITTED NOT IN STRICT COMPLIANCE WITH THE SPECIFICATION WILL RENDER HIS BID NONRESPONSIVE TO THE IFB. THE DATA RELATIVE TO DESIGN APPROACHES, ETC., WHICH WILL BE REQUIRED FOR EVALUATION PURPOSES IS AS FOLLOWS:

"1. OUTLINE DRAWINGS OF THE OVERALL EQUIPMENT ITEM AND MAJOR COMPONENTS THEREOF SHOWING SIZE, ARRANGEMENT OF PARTS, WEIGHT, AND ANY OTHER PHYSICAL FEATURES OF A MAJOR NATURE.

"2. SCHEMATIC DIAGRAMS FOR THE OVERALL EQUIPMENT ITEMS SHOWING CONTROLS, PROTECTIVE DEVICES, VALVES, GAUGES, AND OTHER COMPONENTS, INCLUDING IDENTIFICATION OF KNOWN COMMERCIAL MAJOR COMPONENTS BY NAMEPLATE OR CATALOG RATING THEREOF.

"3. A LISTING OF THE GOVERNMENT REQUIREMENTS BY SPECIFICATION PARAGRAPH NUMBER AND/OR NOUN DESCRIPTION FOLLOWED BY A STATEMENT INDICATING COMPLIANCE AND, WHERE APPLICABLE, DETAILS OF THE ENGINEERING DESIGN APPROACH.

"B. IN NO CASE WILL AN AWARD BASED UPON THE FOREGOING DATA CONSTITUTE A WAIVER OF THE REQUIREMENTS OF THE SPECIFICATION AS TO ACCEPTANCE, INSPECTION, TESTING OR ANY OTHER PROVISIONS OF THE SPECIFICATION.'

THE REPORT FURNISHED IN THE MATTER BY THE DEPARTMENT OF THE AIR FORCE INDICATES THAT NINE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE BID OF RAPID ELECTRIC COMPANY WAS THE SECOND LOW BID. HOWEVER, THE TWO LOWEST BIDDERS, INCLUDING RAPID ELECTRIC, DID NOT SUBMIT WITH THEIR BIDS THE DATA REQUIRED BY PARAGRAPH H AND THEREFORE THEIR BIDS WERE REJECTED AS NOT BEING IN COMPLIANCE WITH A SPECIFIC AND MATERIAL REQUIREMENT OF THE INVITATION FOR BIDS, IN ACCORDANCE WITH PARAGRAPH 2-2003.5, AIR FORCE PROCUREMENT INSTRUCTION.

IT IS REPORTED THAT THE E-9 RECTIFIERS ARE NOT IN STANDARD INDUSTRIAL USE, THAT THIS RECTIFIER IS A COMPARATIVELY NEW ITEM WHICH INCORPORATES MORE STRINGENT SPECIFICATION REQUIREMENTS IN CERTAIN MATERIAL RESPECTS AND THAT IT IS MORE DIFFICULT TO MANUFACTURE THAN OTHER SIMILAR MODELS. WAS FOR THESE REASONS AND TO DETERMINE FROM AN ENGINEERING AND DESIGN POINT OF VIEW WHETHER THE BIDDERS WERE CAPABLE OF AND COULD BE EXPECTED TO MEET THE RIGID SPECIFICATION REQUIREMENTS, THAT PARAGRAPH H WAS MADE A SPECIFIC AND MATERIAL REQUIREMENT OF THE INVITATION FOR BIDS.

YOU CONTEND THAT EVEN THOUGH IT IS RECOGNIZED THAT THE INVITATION CONTAINED AN EXPRESSED CONDITION THAT THE FURNISHING OF CERTAIN DATA WAS MANDATORY AND THAT THE FAILURE TO SUBMIT SUCH DATA WOULD BE CONSIDERED NONRESPONSIVE TO THE TERMS OF THE INVITATION, THE USE OF THIS PROVISION TO REJECT THE BID OF RAPID ELECTRIC COMPANY WAS NOT CONSISTENT WITH THE BEST INTEREST OF THE GOVERNMENT. IN SUPPORT OF SUCH CONTENTION IT IS STATED THAT THE EQUIPMENT INVOLVED IS NOT HIGHLY SPECIALIZED; THAT IN CERTAIN RESPECTS THE REQUIREMENTS OF THE SPECIFICATIONS ARE NOT AS STRINGENT AS THE REQUIREMENTS FOR SIMILAR RECTIFIERS MANUFACTURED BY RAPID ELECTRIC COMPANY, NAMELY THE H-1 AND THE B-2; AND THAT THE COMPANY AGREED IN ITS BID TO COMPLY WITH ALL REQUIREMENTS OF THE SPECIFICATIONS.

IN EFFECT, YOUR POSITION IS THAT THE CONTRACTING OFFICER SHOULD HAVE DISREGARDED THE PROVISION OF THE INVITATION WITH RESPECT TO FURNISHING DATA SINCE ALLEGEDLY HE KNEW OR COULD HAVE DETERMINED THAT RAPID ELECTRIC WAS CAPABLE OF COMPLYING WITH THE REQUIREMENTS OF THE SPECIFICATIONS FOR THE B-9 RECTIFIER ON THE BASIS OF SIMILAR RECTIFIERS WHICH RAPID ELECTRIC HAD PREVIOUSLY FURNISHED TO THE AIR FORCE.

IT IS THE PROPER FUNCTION OF ADMINISTRATIVE OFFICERS TO PREPARE SPECIFICATIONS IN ACCORDANCE WITH THE NEEDS OF THE GOVERNMENT AND TO PROVIDE SPECIAL PROVISIONS IN INVITATIONS DUE TO THE COMPLEXITY OF THE EQUIPMENT BEING PURCHASED OR FOR SOME OTHER PARTICULAR REASON. IN THIS CASE, IT DOES NOT APPEAR THAT THE REQUIREMENTS OF PARAGRAPH H WERE UNREASONABLE OR ARBITRARY. SINCE RAPID ELECTRIC COMPANY DID NOT SUBMIT THE DATA REQUIRED BY THE INVITATION ITS BID WAS NONRESPONSIVE AS SPECIFICALLY PROVIDED. THE PROVISION AS TO THE SUBMISSION OF DATA HAVING BEEN MADE MANDATORY, THERE WOULD BE NO AUTHORITY FOR THE CONTRACTING OFFICER TO SUBSEQUENTLY WAIVE IT. SEE 36 COMP. GEN. 376. FURTHERMORE, IF THE PROVISION COULD HAVE BEEN WAIVED AS TO RAPID ELECTRIC COMPANY, THE SECOND LOW BIDDER, THE PROVISION WOULD ALSO HAVE BEEN REQUIRED TO HAVE BEEN WAIVED AS TO THE LOW BIDDER. NO ONE BIDDER MAY BE GIVEN AN ADVANTAGE NOT EQUALLY AVAILABLE TO ALL.

ACCORDINGLY, YOU ARE ADVISED THAT THERE IS NO LEGAL BASIS UPON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.