B-132399, AUGUST 28, 1957, 37 COMP. GEN. 143

B-132399, AUGUST 28, 1957, 37 COMP. GEN. 143

CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - SUPPLEMENTAL DATA THE SUBMISSION OF SUPPLEMENTAL DATA AFTER OPENING BY A LOW BIDDER PURSUANT TO AN INVITATION WHICH SPECIFICALLY PROVIDES THAT THE TECHNICAL INFORMATION AND DATA WILL NOT BECOME A PART OF THE BID AND WILL BE USED SOLELY TO PREDETERMINE COMPLIANCE WITH THE SPECIFICATIONS IS NOT REGARDED AS PERMITTING THE BIDDER TO CHANGE HIS BID AFTER OPENING, AND THE BID DOES NOT HAVE TO BE REJECTED AS DEFECTIVE BECAUSE THE ORIGINAL INFORMATION AND DATA WERE INCOMPLETE.

TO THE SECRETARY OF THE INTERIOR, AUGUST 28, 1957:

REFERENCE IS MADE TO YOUR LETTER OF JULY 9, 1957, REQUESTING A DECISION ON QUESTIONS WHICH HAVE ARISEN IN THE PROCUREMENT OF STATIC SERIES CAPACITOR EQUIPMENT FOR THE BONNEVILLE POWER ADMINISTRATION UNDER INVITATION NO. 8359, ISSUED BY THAT AGENCY ON APRIL 22, 1957.

IT IS REPORTED THAT THE STATIC SERIES CAPACITOR EQUIPMENT INVOLVED IS A HIGHLY COMPLEX AND COORDINATED SYSTEM EMBODYING PIONEERING TECHNIQUE ASPECTS. FOR THESE REASONS PRELIMINARY SPECIFICATIONS WERE ISSUED ON JANUARY 28, 1957, TO ALL POTENTIAL DOMESTIC SOURCES, INCLUDING TOBE DEUTSCHMANN CORPORATION, TO SOLICIT THEIR TECHNICAL COMMENTS AND RECOMMENDATIONS. IT IS STATED SUCH PROCEDURE HAS BEEN FOUND FROM EXPERIENCE TO PRODUCE MORE ACCEPTABLE SPECIFICATIONS AND THE FINAL TECHNICAL REQUIREMENTS ARE THE MOST COMPATIBLE TO PRODUCTION, TEST AND ECONOMY. THE USE OF PRELIMINARY SPECIFICATIONS IS A RECOGNIZED ENGINEERING PRACTICE ON SPECIFICATIONS CONTEMPLATING COMPLEX EQUIPMENT EMBODYING PIONEERING ASPECTS IN THAT IT TAKES ADVANTAGE OF SUPPLIERS' PRIOR MANUFACTURING AND TEST EXPERIENCE AND LEADS TO THE SELECTION OF THE MOST ECONOMICAL AND COMPATIBLE EQUIPMENT AND THAT IT ALSO ASSURES MAXIMUM PARTICIPATION BY ALL SUPPLIERS.

IN ISSUING THE PRELIMINARY SPECIFICATIONS THE COMPANIES WERE ADVISED THAT SINCE THE TIMING ON THE PROJECT WAS CRITICAL IT WAS INTENDED TO ISSUE THE INVITATION TO BID ON THE SERIES CAPACITOR IN THE NEAR FUTURE AND THAT SINCE ALL MANUFACTURERS WOULD HAVE AN OPPORTUNITY TO REVIEW THE SPECIFICATIONS PRIOR TO ISSUING THEM ON AN INVITATION TO BID, THE ACTUAL BIDDING TIME WOULD BE KEPT TO A MINIMUM SO AS TO EXPEDITE ACTIVITY ON THE PROJECT. SEVERAL COMPANIES EXPRESSED INTEREST IN THE PRELIMINARY SPECIFICATIONS AND MADE TECHNICAL COMMENTS AND SUGGESTIONS WHICH WERE QUITE CONSTRUCTIVE AND WERE CONSIDERED AND UTILIZED WHERE POSSIBLE IN THE SPECIFICATIONS AND AIDED IN PRODUCING FINAL SPECIFICATIONS FOR THE MOST ECONOMICAL EQUIPMENT. TOBE DEUTSCHMANN CORPORATION DID NOT RESPOND IN ANY WAY WITH RESPECT TO THE PRELIMINARY SPECIFICATIONS.

THE FORMAL INVITATION FOR BIDS WERE ISSUED ON APRIL 22, 1957. DUE TO THE COMPLEXITY AND THE PIONEERING ASPECTS OF THE EQUIPMENT BEING PURCHASED THERE WERE SET FORTH ON PAGE 10, THE ORGANIZATION, EXPERIENCE, PRODUCTION CONTROL AND TEST FACILITIES THAT A BIDDER MUST POSSESS AND ON PAGE 11 IT IS PROVIDED AS FOLLOWS:

INFORMATION TO BE SUBMITTED BY BIDDER. A. EACH COPY OF THE BID SHALL BE ACCOMPANIED BY A COMPLETE SET OF DESCRIPTIVE INFORMATION, INCLUDING COPIES OF CATALOG CUTS SHOWING THE DETAILS OF CONSTRUCTION OF THE EQUIPMENT PROPOSED IN ACCORDANCE WITH THESE SPECIFICATIONS AND ASKETCH SHOWING THE PROPOSED METHOD OF MOUNTING. IN ADDITION EACH BIDDER SHALL SUBMIT PERTINENT DATA ABOUT THE EQUIPMENT HE PROPOSES TO FURNISH ON THE ATTACHED BID DATA SHEETS.

B. INFORMATION FURNISHED BY THE BIDDER AS REQUIRED HEREIN WILL BE USED IN ANALYZING BIDS IN AN ENDEAVOR TO PREDETERMINE COMPLIANCE WITH THE SPECIFICATIONS AND SUITABILITY OF MATERIAL OR EQUIPMENT FOR THE REQUIRED SERVICE. THIS INFORMATION WILL FORM NO PART OF THE BID, AND IS NOT FOR THE BENEFIT OF THE BIDDERS. UNLESS THE BIDDER SPECIFICALLY INDICATES IN THE BID ITSELF THAT EXCEPTION IS TAKEN TO THE SPECIFICATIONS, AND UNLESS SUCH SPECIFIC EXCEPTIONS ARE ACCEPTED BY THE GOVERNMENT, COMPLIANCE WITH THE SPECIFICATIONS IN EVERY RESPECT WILL BE REQUIRED.

C. THE CONTRACTING OFFICER RESERVES THE RIGHT TO REJECT ANY BID NOT ACCOMPANIED BY THE INFORMATION REQUIRED.

D. BIDDERS, WHO HAVE NOT PREVIOUSLY DONE SO, SHALL SUBMIT COMPLETE INFORMATION SHOWING COMPLIANCE WITH THE SECTION ENTITLED " EXPERIENCE, ORGANIZATION AND FACILITIES.'

THE FOUR BIDS RECEIVED IN RESPONSE TO THE INVITATION WERE PUBLICLY OPENED ON JUNE 12, 1957. THE LOW BID IN THE AMOUNT OF $621,690 WAS SUBMITTED BY TOBE DEUTSCHMANN CORPORATION AND NO EXCEPTIONS WERE TAKEN TO THE SPECIFICATIONS IN THE BID. THE NEXT LOW BID IS IN THE AMOUNT OF $641,813. TOBE DEUTSCHMANN CORPORATION SUBMITTED WITH ITS BID CERTAIN DATA CONCERNING THE EQUIPMENT IT PROPOSED TO FURNISH AND STATED IN AN ATTACHED LETTER DATED JUNE 11, 1957, THAT THEY WERE PREPARING ADDITIONAL INFORMATION AND WERE READY, AT THE GOVERNMENT'S REQUEST, TO DISCUSS THE MERITS AND DETAILS OF THE EQUIPMENT.

IT IS REPORTED THAT THE DATA FURNISHED BY TOBE DEUTSCHMANN CORPORATION WITH ITS BID WAS SUBSTANTIALLY INCOMPLETE. THE DATA FURNISHED BY THE SECOND AND THIRD LOW BIDDER WAS COMPLETE AT THE TIME OF THE BID OPENING, AND ANALYSIS OF THE DATA SHOWED NO OMISSIONS OR DISCREPANCIES. SINCE TOBE DEUTSCHMANN CORPORATION WAS THE APPARENT LOW BIDDER AND IN VIEW OF THE STATEMENT MADE IN THE LETTER ACCOMPANYING ITS BID THAT THEY WERE PREPARING ADDITIONAL INFORMATION, THEY WERE ALLOWED TO SUBMIT TWO SUPPLEMENTS TO THEIR ORIGINAL BID. THE FIRST SUPPLEMENTARY DATA WAS RECEIVED ON JUNE 21, 1957, AND THE SECOND ON JUNE 25. THE CORPORATION WAS ADVISED PRIOR TO THEIR SECOND SUBMISSION THAT COMPLETE DATA WOULD BE REQUIRED IN THAT SUBMISSION AND NO FURTHER DATA WOULD BE ALLOWED. IT IS CONSIDERED THAT THE TECHNICAL DATA SUBMITTED BY TOBE DEUTSCHMANN CORPORATION STILL INDICATES THAT IN CERTAIN ASPECTS THE EQUIPMENT THAT IT PROPOSES TO FURNISH IS NOT CAPABLE OF MEETING THE REQUIREMENTS OF THE SPECIFICATIONS AND THAT THE EQUIPMENT OFFERED AND/OR THE DESIGN THEREOF RAISES GRAVE TECHNICAL RESERVATIONS CONCERNING THE OPERABILITY OF THE SYSTEM.

IN VIEW OF THE EVALUATION OF THE TECHNICAL DATA SUBMITTED, THE CONTRACTING OFFICER PROPOSES THAT THE AWARD BE MADE TO THE SECOND LOW BIDDER WHO HAS DEMONSTRATED THAT IT IS CAPABLE OF COMPLYING WITH REQUIREMENTS OF THE SPECIFICATIONS. TOBE DEUTSCHMANN CORPORATION WAS ADVISED OF THE PROPOSED ACTION AND BY LETTER DATED JUNE 28, 1957, IT PROTESTED SUCH ACTION AND REQUESTED FURTHER OPPORTUNITY TO DISCUSS ANY POINT CONCERNING ITS PROPOSAL IF THE SITUATION DEMANDED CLARIFICATION. WAS FURTHER STATED THAT ITS BID TOOK NO EXCEPTION TO THE SPECIFICATIONS AND OFFERED TO FURNISH AND GUARANTEE THAT THE EQUIPMENT WILL MEET ALL REQUIREMENTS AT THE PRICE QUOTED IN THE BID.

THE BASIS FOR THE PROPOSED REJECTION OF THE BID OF TOBE DEUTSCHMANN CORPORATION IS SET FORTH IN YOUR LETTER AS FOLLOWS:

(1) IT IS INCOMPLETE IN A SPECIFIC REQUIREMENT OF THE TECHNICAL SPECIFICATIONS--- SUBMITTAL OF A DRAWING INDICATING "A SECTION THROUGH RACK SHOWING ARRANGEMENT OF CAPACITOR UNITS AND CONNECTIONS,"

(2) IT CONTAINS MAJOR DISCREPANCIES WHICH ARE CHANGES IN THE TOBE DEUTSCHMANN BID RATHER THAN CLARIFICATION OF THE INCOMPLETE DATA SUBMITTED WITH THE BID (THESE CHANGES ARE LISTED ON PAGE 3 OF ATTACHMENT 5, AND

(3) BECAUSE THE B.P.A. ENGINEERING STAFF HAS SERIOUS TECHNICAL RESERVATIONS REGARDING THE OPERABILITY OF THE SYSTEM PROPOSED IN THE BID AND SUPPLEMENTAL DATA SUBMITTED BY THE LOW BIDDER.

IN A CONFERENCE HELD ON AUGUST 5, 1957, BETWEEN REPRESENTATIVES OF THE BIDDER, YOUR DEPARTMENT AND THIS OFFICE, IT WAS CONCEDED THAT THERE WAS NO QUESTION CONCERNING THE BIDDER'S ORGANIZATION, EXPERIENCE, PRODUCTION CONTROL AND TEST FACILITIES. THE BIDDER ALSO ADMITTED THAT SOME OF THE RECOMMENDATIONS OF THE ENGINEERING PERSONNEL OF BONNEVILLE POWER ADMINISTRATION WERE JUSTIFIED WHILE OTHERS WERE SUBJECT TO DISPUTE. THE BIDDER ALLEGES THAT EVEN IF THE ADVERSE RECOMMENDATIONS BE CONSIDERED JUSTIFIED THEY ARE RELATIVELY MINOR. FURTHER, THE BIDDER STATED THAT THE INFORMATION AND DATA FURNISHED WERE INTENDED PRIMARILY FOR THE PURPOSE OF INDICATING THE CLASS OF EQUIPMENT PROPOSED TO BE FURNISHED RATHER THAN A DETAILED FINAL DESCRIPTION THEREOF.

THE QUESTION FOR CONSIDERATION HERE AT THIS TIME IS WHETHER UNDER THE TERMS OF THE INVITATION THE BIDDER IS ABSOLUTELY LIMITED BY THE INFORMATION AND DATA SUBMITTED WITH THE BID AND EVALUATION MUST BE BASED SOLELY THEREON, OR WHETHER THE FAILURE TO SUBMIT WITH THE BID SUFFICIENT INFORMATION AND DATA MAY BE WAIVED BY THE CONTRACTING OFFICER AS AN INFORMALITY AND THE BID EVALUATED ON THE BASIS OF INFORMATION SUBMITTED AFTER THE OPENING OF THE BIDS.

WE HAVE HELD THAT THE FAILURE OF THE BIDDER TO SUBMIT SAMPLES, DESCRIPTIVE LITERATURE, DATA OR OTHER INFORMATION WITH HIS BID, AS REQUIRED BY THE INVITATION, MAY BE WAIVED AS AN INFORMALITY WHERE THE ADVERTISED SPECIFICATIONS FULLY SET FORTH THE REQUIREMENTS OF THE GOVERNMENT AND THE BIDDER PROPOSES TO MEET THE SPECIFICATIONS. 17 COMP. GEN. 940. HOWEVER, IT WAS STATED IN THAT DECISION ON PAGE 944:

IT MAY BE THAT IN EXCEPTIONAL CASES WHERE, DUE TO THE INTRICACY, NOVELTY, ETC., OF THE ARTICLE TO BE PURCHASED, THE SPECIFICATIONS CANNOT BE STATED WITH SUFFICIENT CERTAINTY TO WARRANT THE ACCEPTANCE OF A BID WITHOUT THE PRIOR SUBMISSION OF A SAMPLE TO SHOW EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH, OR IN OTHER CASES, DUE TO THE PARTICULAR NEEDS OF THE GOVERNMENT, IT WOULD NOT BE TO THE INTEREST OF THE GOVERNMENT TO WAIVE THE FAILURE TO SUBMIT A SAMPLE, AND IN SUCH CASES, WHERE SUCH CIRCUMSTANCES ARE ESTABLISHED, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO THE ACCEPTANCE OF A HIGHER BID BECAUSE THE LOW BIDDER FAILED TO SUBMIT THE REQUIRED SAMPLE BEFORE THE BIDS WERE OPENED.

IN THE INSTANT CASE, UNDER THE PROVISIONS OF PARAGRAPHS B AND C APPEARING ON PAGE 11, QUOTED ABOVE, IT WAS STATED THAT THE INFORMATION AND DATA WERE TO BE USED SOLELY "IN ANALYZING BIDS IN AN ENDEAVOR TO PREDETERMINE COMPLIANCE WITH THE SPECIFICATIONS.' ON THE OTHER HAND, HOWEVER, IT WAS EXPRESSLY PROVIDED THAT SUCH INFORMATION AND DATA WOULD IN NO WAY RELIEVE THE CONTRACTOR FROM COMPLYING WITH THE SPECIFICATIONS IN EVERY RESPECT. CONSIDERING THESE PROVISIONS IN CONJUNCTION WITH THE FURTHER STATEMENT THAT THE DATA "WILL FORM NO PART OF THE BID," IT IS CLEAR THAT THE DATA WOULD NOT BECOME A PART OF THE CONTRACT SO THAT THE CONTRACTOR'S OBLIGATION TO CONSTRUCT THE EQUIPMENT WOULD BE GOVERNED OR CONTROLLED PRIMARILY BY THE SPECIFICATIONS RATHER THAN BY THE DETAILS OF THE DATA SUBMITTED. IT THEREFORE WOULD SEEM TO LOGICALLY FOLLOW THAT THE INFORMATION AND DATA ARE FOR THE BENEFIT OF THE GOVERNMENT AND ARE SOLELY FOR THE PURPOSE OF DETERMINING, PRIOR TO AWARD, THAT THE BIDDER IS ABLE TO DESIGN, CONSTRUCT AND FURNISH EQUIPMENT MEETING THE REQUIREMENTS OF THE SPECIFICATIONS.

IT HAS ALWAYS BEEN RECOGNIZED THAT THE CONTRACTING AGENCY HAS THE RESPONSIBILITY OF DETERMINING WHETHER A PARTICULAR BIDDER IS RESPONSIBLE AND QUALIFIED TO PERFORM THE WORK COVERED BY THE INVITATION. HOWEVER, IT IS NOT BELIEVED THAT IT IS REQUIRED TO RESTRICT THE BASIS FOR SUCH DETERMINATION SOLELY ON THE BASIS OF INFORMATION AND DATA SUBMITTED WITH THE BID WHERE IT IS EXPRESSLY PROVIDED THAT SUCH INFORMATION AND DATA FORM NO PART OF THE BID. OBVIOUSLY, THE DETERMINATION MAY BE MADE ON THE BASIS OF INFORMATION AND DATA SUBMITTED OR OBTAINED AFTER THE OPENING OF THE BIDS AS WELL AS ON THE BASIS OF INFORMATION SUBMITTED WITH THE BID. FURTHERMORE, PERMITTING THE BIDDER TO SUBMIT SUPPLEMENTAL DATA EVEN THOUGH IT MAY VARY FROM THE ORIGINAL DATA IS NOT PERMITTING THE BIDDER TO CHANGE ITS BID AFTER THE BID OPENING SINCE THE BIDDER HAS AGREED TO COMPLY WITH THE SPECIFICATIONS IN ALL RESPECTS, AND THE BIDDER LEGALLY COULD NOT HAVE REFUSED TO ACCEPT AWARD OF THE CONTRACT ON THE GROUND THAT HIS BID WAS DEFECTIVE BECAUSE IT DID NOT INCLUDE COMPLETE AND ADEQUATE INFORMATION AND DATA.

ACCORDINGLY, IF TOBE DEUTSCHMANN CORPORATION IS ABLE TO ESTABLISH THAT IT IS CAPABLE OF DESIGNING, MANUFACTURING AND INSTALLING EQUIPMENT MEETING THE REQUIREMENTS OF THE SPECIFICATIONS IN SUFFICIENT TIME TO ENABLE AWARD TO BE MADE SO THAT THE EQUIPMENT CAN BE DELIVERED WHEN NEEDED, THERE WOULD BE NO LEGAL BASIS FOR REJECTING THE BID OF TOBE DEUTSCHMANN AND MAKING AWARD TO A HIGHER BIDDER.

THE RESULT HERE IS NOT CONSIDERED INCONSISTENT WITH THE CONCLUSION REACHED IN DECISION OF NOVEMBER 21, 1956, B-129041, TO YOU, 36 COMP. GEN. 415, WHEREIN IT WAS HELD THAT A BIDDER'S FAILURE TO ACCOMPANY ITS BID WITH CERTAIN ESSENTIAL DESCRIPTIVE DATA AS REQUIRED BY THE INVITATION COULD NOT BE WAIVED. THE CONTROLLING DIFFERENCE BETWEEN THE TWO CASES IS THAT UNDER THE FACTS IN THE DECISION OF NOVEMBER 21, 1956, THE REQUIRED DATA CLEARLY WAS A PART OF THE BID WHEREAS HERE IT IS NOT. IT MAY BE SUGGESTED THAT IF, IN FUTURE SIMILAR CASES, IT IS DESIRED TO RESTRICT CONSIDERATION OF DATA TO THAT SUBMITTED WITH THE BID AND TO PRECLUDE ANY MODIFICATION OR SUPPLEMENTATION OF THE DATA SUBSEQUENT TO BID OPENING, THAT RESULT MAY BE ACCOMPLISHED BY A PLAIN AND UNEQUIVOCAL STATEMENT TO THAT EFFECT IN THE INVITATION FOR BIDS. SEE PARTICULARLY 36 COMP. GEN. 376.